^^^^^Tc* 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


UilM    |2.5 


IL25  i  1.4 


I 


1.6 


Photographic 

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Corporation 


23  WIST  MAIN  STRUT 

WIUTH.N.Y.  MSM 

(716)t73-4S03 


lA 


% 


CIHM/ICMH 

Microfiche 

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microfiches. 


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premiere  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  derniire  page  qui  comporte  une  telle 
empreinte. 

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dernidre  image  de  cheque  microfiche,  selon  le 
cas:  le  symbols  —►  signifie  "A  SUIVRE",  le 
symbols  V  signifie  "FIN". 

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filmte  d  des  taux  de  reduction  diffdrents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  clich6,  ii  est  filmd  d  partir 
de  I'angle  sup6rieur  gauche,  de  gauche  d  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  nicessaire.  Les  diagrammes  suivants 
illustrent  la  m6thode. 


1 

2       '       3 

1 

2 

3 

4 

5 

6 

R/ 


ALL  TH 


UNI' 


EDW/ 


■UJ^  ,  '^ 


DIGEST 


OF 


RAILWAY    DECISIONS.  • 


'  t 


EMRRACIXG 


ALL  THE  CASES  FRO  AT   TIfF   F^nrr 


I\  TJIE 


UNITED  STATES,   ENGLAND 


AND  CANADA. 


BY 


STEWART  RAPALJE 

AND 

WILLIAM    MACK. 


Volume  VI. 


NOFfHPORT,  LONG  ISLAND    W    v 

EDWARD  THOMPSON  COMPaTv    Uw  P 

^J^NY,  Law  Publishers. 
1897. 


^^ 


\'^ 


■,s  '^ 


Copyright,  1897, 

BY 

BDWARD  THOMPSON  COMPANY. 
All  rights  reurvid. 


R-1  ^^^ 


i 


MADE  AT  NORTHFORT,   L.    I.,   N.   Y. 
ROBERT  DRUMMOND,  J.  M.  DUNN, 


Printer, 


Bindtr, 


DIGEST 


OF 


fM 


RAILWAY    DECISIONS. 


'  >■  ft 


I 


INTERSTATE  COMMERCE. 

Appeal  from  commission  to  U.  S.  supreme 

court,  see  Fkukral  Courts,  20. 

State   statutes  attempting  to  regulate,  see 

aisuSt'ATui  lis,  as. 

I.  POWEB  OF  COKGBESS  TO  BEOULATE  i 
II.  WHAT    IS     DEEMED     INTEB8TATE 

COHMEBCE 3 

in.  THE  IHTEB8TATE  COHI  ERCE  ACT.  4 

1.  General  Rules  for  Construc- 

tion of 4 

2.  Powers  and  Duties  of  Com- 

mission    5 

3.  Carriers  Subject  to 7 

4.  fust  and  Reasonable  Charges.  1 1 

5.  Unjust  Discrimination 19 

a.  What  is 19 

b.  Effect  of  Competition.  21 

c.  Local     and     Through 

Rates 23 

d.  Classitication    of 

Freights 25 

e.  Carriage  of  Passengers.  30 

6.  Preference  or  Advant<^e 31 

7.  Facilities  for  the  Interchange 

of  Traffic 33 

8.  Long  and  Short  Hauls 36 

9.  Filitig  and  Publishing  Sched- 

ules   45 

a.  Freight  Schedules. .. .  45 

b.  Passenger    Schedules.  48 
ID.  Continuous    Carriage    of 

Freights 48 

11.  Pooling  Contracts 49 

12.  Enforcement  of  the  Statute...  49 

13.  Complaints    and    Adjudica- 

tions    50 

6  D.  R    D  — I. 


14.  Proceedings  in  United  States 

Courts 52 

1 5.  Procedure  before  the  Commis- 

sion      53 

16.  Reparation 56 

17.  Mileage,  Excursion,  Commu- 

tation   Tickets,  etc 57 

IV.  STATE  LAWS    AFFECTING  INTEBSTATE 
COHMEBCE 58 

1.  Tax    on    J n testate   Carriers 

or  Traffic 58 

a.  Right    to    Tax,    Gen- 

erally      58 

b.  Tax  on  Sleeping  Cars.     59 

c.  Tax  on  Gross  Receipts.    60 

d.  Tax  on   the   Property 

or     Business    of    a 
Carrier 61 

e.  License  Tax 64 

2.  Regulation  of  Interstate  Car- 

riers or  Traffic  66 

3.  State  Inspection  Laws 71 

I.  POWEB  OF  C0NOBE8S  TO  BEOULATE. 

1.  Power,  generally.— The  power  to 
regulate  commerce  between  the  state  ex- 
tends, not  only  to  the  control  of  the  naviga- 
ble waters  of  the  country  and  the  land? 
under  them  for  the  purpose  of  navigation, 
but  for  the  purpose  of  erecting  piers, 
bridges,  and  all  other  instrumentalities  of 
commerce  which,  in  the  judgment  of  con- 
gress, may  be  necessary  or  expedient. 
Stockton  V.  Baltimore  <S-  N.  Y.  R.  Co.,  32 
Fed,  Rep.  9.  i  Int.  Com.  Rep.  41 1. 

In  carrying  on  foreign  and  interstate  com- 
merce, corporations,  equally   with  Individ- 


v^H 


INTERSTATE   COMMERCE.  l-Jl. 


uals.  are  within  the  protection  of  the  com- 
mercial power  of  conjiress,  and  cannot  be 
molested  in  another  state  by  state  burdens 
or  impediments.  Stockton  v.  Baltimore  &• 
N.  y.  A'.  Co.,  32  Fid.  Affi.g,  i  Int.  Com. 
Rep.  411. 

Under  tiie  constitutional  power  of  con- 
gress to  regulate  commerce  among  the 
states,  the  means  of  communication  by 
land,  as  well  as  by  water,  are  embraced, 
whenever  the  states  fail  to  provide  such 
means  of  communication,  or  when,  in  the 
opinion  of  congress,  additional  facilities  for 
interstate  communication  are  demanded. 
Stockton  V.  Baltimore  (S«  A^.  Y.  A'.  Co.,  32 
Fill.  Rep.  9,  I  hit.  Com.  Rep.  411. 

Tlie  power  of  congress  to  regulate  com- 
merce between  the  states  is  supreme  over 
the  whole  subject,  unimpeded  and  unem- 
barrassed by  state  lines  or  state  laws.  In 
this  matter  the  country  is  one,  and  the 
work  to  be  accomplished  is  national;  and 
state  interests,  state  jealousies,  and  state 
prejudices  do  not  require  to  be  consulted. 
In  matters  of  foreign  and  interstate  com- 
merce there  are  no  states.  Stockton  v.  Bal- 
timore &^  A',  v.  R.  Co.,  32  Fed.  Rep.  9,  i 
/;//.  Com.  Rep.  41 1. 

The  constitutional  grant  to  congress  of 
the  power  to  regulate  commerce  among  the 
states  is  not  restricted  or  made  subject  to 
any  condition  whatever ;  and  it  is  therefore 
full  and  complete,  and  any  state  action  that 
would  limit  or  hamper  it  is  obviously  an 
encroachment  upon  federal  authority.  Leon- 
ard V.  Chicago  &*  A.  R.  Co.,  2  Int.  Com. 
Rep.  599,  3/«/.  Com.  Com.  241. 

State  regulations  of  local  commerce  are 
not  binding  rules  for  the  regulation  of  in- 
terstate commerce.  State  action  will  al- 
ways be  treated  with  deference  and  respect, 
but  cannot  be  allowed  to  control  within  the 
exclusive  federal  jurisdiction.  Leonard  w. 
Chicairo  &*  A.  R.  Co.,  2  Int.  Com.  Rep.  599, 
3  /;//.  Com.  Com.  241. 

The  constitution  of  the  United  States 
places  the  regulation  of  interstate  commerce 
under  federal  jurisdiction,  and  the  rates  on 
interstate  traffic  may  be  regulated  by  fed- 
eral authority  with  reference  to  trade  con- 
ditions and  the  circumstances  of  localities, 
without  infringing  any  of  its  rights  or  im- 
munities under  the  constitution.  Kauf- 
man Milling  Co.  v.  Missouri  Pac.  R.  Co.,  3 
Int.  Com.  Rep.  400,  4  Int.  Com.  Com.  417. 

The  absolute  power  to  regulate  such  com- 
merce is  in  congress  and  the  onlv  freedom 


of  commerce  is  the  freedom  from  burdens 
and  regulations  other  than  those  imposed 
by  congress,  or  pursuant  to  its  authority. 
Kaujfman  Milling  Co.  v.  Missouri  Pac.  R. 
Co.,  3  Int.  Com.  Rep.  400,  4  Int.  Com.  Com. 

417. 

2.  Power  to  authorize  interstate 

railroads.  — Congress  has  authority,  in 
the  exercise  of  its  power,  to  regulate  com- 
merce among  the  several  states,  to  construct, 
or  authorize  individual  corporations  to  con- 
struct, railroads  across  the  states  and  terri- 
tories of  tiie  United  States.  California  v. 
Central  Pac.  R.  Co.,  33  Am.  &•  Fng.  R.  Cas. 
451,  127  [/.S.  1,8  Sup.Ct.  Rep.  1073.— Fol- 
lowing Pacific  R  Removal  Case,  115  U.  S. 
I. — Quoted  in  Cherokee  Nation  v.  South- 
ern Kan.  R.  Co.,  44  Am.  &  Eng.  R.  Cas.  26, 
13s  U.  S.  641.  Reviewed  in  United  States 
V.  Southern  Pac.  R.  Co.,  14  Sawy.  (U.  S.) 
620. 

3.  How  far  the  national  power  is 
exclusive.— The   fact   that  congress   has 
not  seen  (it  to  prescribe  any  specific  rules 
to  control  or  regulate  the  transportation  of 
goods  from  a  place  in  one  state  to  a  place 
in  another — interstate  commerce — does  not 
empower  the  states  of  the  Union  to  regulate 
such  commerce.     Its  inaction  on  the  sub- 
ject, when  considered  with  reference  to  its 
other  legislation,  is  equivalent  to  a  declara- 
tion that  interstate  commerce  shall  be  free 
and  untrammeled.    Hardy  v.  Atchison,  T. 
&*  S.  F.  R.  Co.,  18  Am.  &*  Eng.  R.  Cas.  432, 
32  A'rtw.  698,  5  Pac.  Rep.  6.— Commentino 
ON  Peik  V.  Chicago  &  N.  W.  R.  Co.,  94  U. 
S.  164;  Munn  v.  Illinois,  94  U.  S.  138;  Chi- 
cago,  B.  &  Q.  R.  Co.  V.  Iowa,  94  U.  S,  155. 
Criticising  People  v.  Wabash,  St.  L.  &  P. 
R.  Co.,  104  111.  476.    Quoting  Welton  v. 
Missouri, 91  U.  S.  275  ;  Hannibal  &  St.  J.  R. 
Co.   V.    Husen,  95   U.   S.  465  ;  Hall  v.  De 
Cuir,  95  U.  S.  485  ;  Western  Union  Tel.  Co. 
V.   Texas,    105    U.   S.  460;    Pacific    Coast 
Steam-Ship  Co.w.  Board  of  Railroad  Com'rs, 
18  Fed.  Rep.  10. 

The  states  have  the  right  to  decide  as  to 
how  best  to  improve  highways,  whether 
land  or  water,  subject  to  the  control  of  con- 
gress when  they  become  the  means  of  inter- 
state commerce.  Husev.  Glover,  \ig  U.  S. 
543.  7  Sup.  Ct.  Rep.  313.— Followed  in 
Rhea  v.  Newport  News  &  M.  V.  R.  Co.,  52 
Am.  &  Eng.  R.  Cas.  657,  50  Fed.  Rep.  16. 
Reviewed  in  Stockton  v.  Powell,  29  Fla.  i. 

The  power  of  congress  over  interstate 
commerce  is  exclusive  only  when  its  subjects 


INTERSTATE    COMMERCE,  4-8. 


.J. 


as  to 
lether 
f  con- 
inter- 
U.  S. 

ED    IN 

:o..  52 

p.    16, 

Fla.  I. 
rstate 
bjects 


are  national  in  character.  Robbinsw  Shelby 
County  Taxing  Dist.,  120  U.  S.  489,  7  Sup, 
Ct.  Rt'p.  592.-  QuoTKU  IN  State  v.  Woodruff 
S.  &  P.  Coach  Co.,  33  Am.  &  Eng.  R.  Cas. 
476,  114  Ind.  155. 

II.   WHAT  18  DEEMED  INTERSTATE 
COHHEBCE.* 

4.  Generally.  —  Where  property  has 
lawfully  commenced  to  move  as  an  article  of 
commerce  from  one  state  to  another,  that 
moment  it  becomes  the  subject  of  interstate 
commerce,  and  as  such  is  subject  only  to 
national  regulation.  Bennett  v.  American 
Exp.  Co.,  49  Am.  <&*  Eng.  K.  Cas.  64,  83  Afe. 
236,  22  ////.  A'ep.  159. 

The  same  is  true  in  relation  to  whatever 
agency  may  be  used  as  the  means  of  tr.ms- 
porting  such  commodities  as  may  lawfully 
become  the  subject  of  purchase,  sale,  or 
exchange,  under  the  commerce  clause  of  the 
constitution  of  the  United  States.  Bennett 
V.  American  Exp.  Co.,  49  Am.  &^  Eng.  A'. 
Cas.  64,  83  A/e.  236,  22  At/.  Rep.  159. 

5.  Traiisportatiuii  of  freight  fr<>in 
one  state  to  another.  —  A  transporta- 
tion of  freight  from  the  interior  of  Illinois 
to  a  point  in  New  York,  under  one  contract, 
and  by  one  voyage,  is  "commerce  among 
the  states,"  even  as  to  that  ])art  of  the  voy- 
age which  lies  wholly  in  Illinois.  Wabash, 
St.  L,  &*  P.  R.  Co.  v.  Illinois.  26  Am.  <S^• 
Eng.  R.  Cas.  i,  118  £/.  5.  557,  7  Sup.  Ct. 
Rep.  4.— Reviewing  MunnT/.  Illinois, 94 U. 
S.  133;  Chicago,  B.  &  Q.  R.  Co.  v.  Iowa,  94 
U.  S.  155;  Peik  V.  Chicago  &  N.  W.  R.  Co., 
94  U.  S.  164. — Approved  in  Com.  v.  Housa- 
tonic  R.  Co.,  27  Am.  &  Eng.  R.  Cas.  31, 
143  Mass.  264.  Distinguished  in  Louis- 
ville, N.  O.  &  T.  R.  Co.  V.  Mississippi,  41 
Am.  &  Eng.  R.  Cas.  36,  133  U.  S.  587,  10 
Sup.  Ct.  Rep.  348  ;  Louisville,  N.  O.  &  T.  R. 
Co.  V.  State,  39  Am.  &  Eng.  R.  Cas.  399,  66 
Miss.  662.  6  So.  Rep.  203.  Followed  in 
Fargo  V.  Michigan,  121  U.  S.  230;  Rhea  z/. 
Newport  News  &  M.  V.  R.  Co.,  52  Am.  & 
Eng.  R.  Cas.  657.  50  Fed.  Rep.  16.  Quoted 
IN  Wigton  V.  Pennsylvania  R.  Co.,  2oPhila. 
(Pa.)  184;  Norfolk  &  W.  R.  Co.  v.  Com.,  88 
Va.  95. — Ex  parte  Koehler,  30  Am.  &^  Eng. 
R.  Cas.  71,  12  Sa\  y.  341,  30  Eeti.  Rep.  867, 
Baird  v.  St.  Louis,  I.  M.  &•  S.  R.  Co.,  42 
Am.  &*  Eng.  R.  Cas.  281,  41  Fed.  Rep.  592. 
Sweatt  v.  Boston,  H.  &•  E.  R.  Co.,  3  Cliff. 
(£/.  5.)339. 


*  What  constitutes  interstate  commerce,  see 
note,  45  Am.  &  Eng.  R.  Cas.  14;  49  Id.  60. 


The  statute  making  it  unlawful  to  kill  or 
to  have  in  one's  possession  deer  and  other 
game  at  certain  seasons  of  tlie  year  does 
not  apply  to  a  railroad  company  which  re- 
ceives sucli  game  as  a  common  carrier;  and 
where  such  game  is  received  by  the  carrier 
to  be  carried  to  a  point  in  another  state  it 
becomes  interstate  commerce,  and  subject 
only  to  national  regulation,  and  not  to  tlie 
police  power  of  the  state.  Bennett  v.  Amer- 
ican Exp.  Co.,  49  Am.  6-  Eng.  R.  Cas.  56,  8j 
A/e.  736,  22  Atl.  Rep.  1 59. 

O.  Pro|>erty  earried  on  through 
billM  (>u  ocean  veMsel  between  |>orts 
of  same  state.— Congress  has  power  \() 
regulate  the  liability  of  owners  of  vessels 
navigating  the  high  seas,  but  engaged  only 
in  the  transportation  of  goods  and  pas- 
sengers between  places  in  the  same  state, 
where  such  vessel  is  but  one  of  connecting 
carriers,  and  is  carrying  goods  on  through 
bills  of  lading,  destined  for  other  states  or 
foreign  countries.  Lord  v.  Goodall,  N.  iS^ 
P.  Steamship  Co.,  4  Sawy.  {(/,  S.)  292; 
affirmed  in  102  U.  S.  541. 

A  party  using,  for  the  transportation  of 
his  goods,  an  instrument  of  commerce, 
which  is  subject  to  the  regulating  power  of 
congress,  must  use  it  subject  to  all  the  lim- 
itations imposed  upon  its  use  by  con- 
gress. Lord  V.  Goodall,  N.  <S>«  /'.  Steamship 
Co.,  4  Sawy.  {U.  S.)  292;  affirmed  in  102  I/. 
S.  541. 

7.  One  of  connecting  carriers.— 
A  railroad  which  is  a  link  in  a  through  line 
of  road  by  which  passengers  and  freiglit  are 
carried  into  a  state  from  other  states,  and 
from  tliat  state  into  other  states,  is  engaged 
in  the  business  of  interstate  commerce. 
Norfolk  &*  W.  R.  Co.  v.  Pennsylvania,  45 
Am.  &*  Eng.  R.  Cas.  9,  136  £/.  5.  114,  10 
Sup.  Ct.  Rep.  958, 

8.  Temporary  detention  of  inter- 
state freiglit.— Where  fruit  growers  ship 
to  their  agent  in  the  same  state  for  re- 
shipment,  and  the  fruit  is  immediately  for- 
warded to  other  states,  it  is  interstate  com- 
merce and  not  subject  to  state  control. 
Cutting  V.  Florida  R.  S^  N.  Co.,  46  Fed. 
Rep.  641.— Following  The  Daniel  Ball,  10 
Wall.  (U.  S.)  557. 

Where  coal  destined  for  a  point  outside 
the  state  is  temporarily  detained  at  a  point 
within  the  state,  such  detention  does  not  so 
interrupt  the  transit  as  to  make  the  trans- 
portation of  such  coal  local  and  not  imc- 
state  commerce.     Delaware  &*   H.   Canal 


' 


•■1 


^b't^' 


4 


INTERSTATE   COMMERCE,  0-11. 


Co.  V.  Com.,  (Pa.)  37  ^'«-  ^  Eng-  R-  Cas. 
359,  17  Atl.  Rep.  175. 

It  was  attempted  to  subject  a  steamer  to 
federal  control  which  was  engaged  in  ship- 
ping goods  marited  for  other  stales;  but  it 
was  objected  that  the  vessel  transportation 
wascniirely  witiiin  the  limits  of  the  state, 
and  that  it  did  not  run  in  connection  with, 
or  in  continuation  of.  any  line  of  vessels  or 
railway  leading  to  other  states,  and  is  there- 
fore engaged  in  domestic  commerce.  Held, 
that  so  far  as  the  vessel  was  employed  in 
transporting  goods  destined  for  other  states, 
or  goods  brought  from  without  the  state 
and  destined  to  places  within  it,  it  was  inter- 
state commerce.  The  fact  that  the  goods 
stopped  at  cither  end  of  the  route  until 
taken  up  by  an  independent  carrier  made 
nu  diflference.  The  Daniel  Ball,  10  Wall. 
(U.S.)  557. 

».  Telegraph  business  between 
states.— Telegraph  business  between  states 
is  mterstate  commerce  and  cannot  be  regu- 
lated by  the  states.  Western  Union  Tel. 
Co.  V.  Pendleton,  122  U.  S.  347,  7  Sup.  Ct, 
Rep.  1 126.— Reviewed  in  Bagg  v.  Wil- 
mington. C.  &  A.  R.  Co.,  109  N.  Car.  279. 

10.  Freights  between  points  in 
same  state,  but  passing  through  an- 
other state.*— Wliere  the  point  of  ship- 
ping and  the  point  of  destination  are  both 
in  the  same  state  it  is  domestic  commerce, 
though  the  goods  may  ^2i%senroute  through 
another  state,  and  are  therefore  subject  to 
state  taxation  or  control.  Lehigh  Valley  R, 
Co.  V.  Pennsylvania,  53  Am.  &•  Eng.  R.  Cas. 
679,  145  (/.  S.  192,  12  Sup.  Ct.  Rep.  806.— 
Explaining  Coe  v.  Errol,  116  U.  S.  517; 
Lord  V.  Goodall,  N.  &  P.  Steamship  Co.,  102 
U.  S.  i,\\.— Campbell  v.  Chicago,  M.  &*  St, 
P.  R.  Co.,  86  Iowa  587,  53  N.  W.  Rep.  351.— 
Following  Lehigh  Valley  R.  Co.  v.  Penn- 
sylvania, 145  U.  S.  192,  12  Sup.  Ct.  Rep.  806. 
Quoting  VVelton  v.  Missouri,  91  U.  S.  280; 
Mobile  County  w.  Kimball,  102  U.S.  702; 
Gibbons  v.  Ogden,  9  Wheat.  (U.  S.)  189.— 
Com.  v.  Lehigh  Valley  R.  Co.,  {Pa.)  17  Atl. 
Rep.  179.  Com.  v.  Lehigh  Valley  R.  Co., 
129  Pa.  St.  308,  18  Atl.  Rep.  125. 

But  for  a  decision  by  the  interstate  com- 


*  As  to  whether  a  shipment  between  points  in 
the  same   state,    but  passing  through  another 
state,  is  interstate  commerce,  see  note,  17  L.  R 
A.  443- 

Power  of  commissioners  to  fix  charges  on 
railroads  crossing  and  recrossing  slate  line  see 
55  Am.  &  Eng.  R.  Cas.  547,  abstr. 


merce  commission  that  such  shipment  is 
interstate  commerce,  see  New  Orleans  Cot- 
ton Exch,  V.  Cincinnati,  N.  O.  &*  T.  /'.  Ji, 
Co.,  2  Jnt.  Com.  Rep.  289,  2  Int.  Com.  Com. 

375- 
Whether  joint  rates  affecting  only  traffic 

between  cities  of  the  same  state,  but  in- 
volving the  transportation  of  freight  from 
one  city  to  the  other  by  a  railroad  company 
organized  under  tlie  laws  of  the  state, 
whose  route  lies  partly  in  another  state, 
and  which,  in  the  course  of  such  transpor- 
tation, carries  the  merchandise  within  tlie 
jurisdiction  of  the  other  state,  would  be  a 
regulation  of  interstate  commerce,  quccre. 
Burlington,  C.  R.  &-  N.  R.  Co.  v.  Dey,  45 
Am.&'Etig.  R.  Cas.  391,  82  Iowa  312,  48  A'. 
W.  Rep.  98.  —  Referring  to  Com.  v. 
Lehigh  Valley  R.  Co.,  (Pa.)  17  Atl.  Rep. 
179;  State  V.  Chicago,  St.  P.,  M.  &  O.  R. 
Co.,  40  Minn.  267,  41  N.  W.  Rep.  1047. 

Where  the  shipment  of  live  stock  is  be- 
tween two  points  in  the  state,  the  fact 
that  the  yards  where  the  cattle  are  un- 
loaded extend  into  another  state,  and  the 
office  of  the  consignee  where  the  cattle  are 
unloading  is  in  the  other  state,  does  not 
convert  the  transaction  into  interstate  com- 
merce. Scammon  v.  Kansas  City,  St.  J.  &» 
C.  B.  R.  Co.,  41  Mo.  App.  194. 

III.  THE  INTEBSTATE  COMHEBCE  ACT. 

I.   General  Rules  for  Construction  of . 

11.  Construction  of  act,  gener- 
ally.*—The  commission  created  by  the  in- 
terstate commerce  act  has  no  power  to  con- 
strue or  apply  the  act  except  upon  an  actual 
violation  of  its  provisions  by  a  carrier  sub- 
ject thereto.  In  re  Order  of  Railway  Con- 
ductors, I  Int.  Com.  Rep.  18.  Holbrook  v. 
St.  Paul,  M.  <S-  M.  R.  Co.,  i  Int.  Com.  Rep. 

323- 

And  where  a  complaint  of  violation  is 
made  and  the  company  appears  and  de- 
clares its  purpose  to  comply  with  the  law, 
the  commission  will  assume  that  it  will  do 
so,  and  act  accordingly  until  it  has  evidence 
to  the  contrary.  Holbrook  v.  St.  Paul,  M. 
*  M.  R.  Co.,  I  Int.  Com.  Rep.  323. 

The  commission  has  not  been  given  a 
general  dispensing  power  to  relieve  hard- 
ships under  the  law,  but  its  power  in  that 

*  Annotated  interstate  commerce  act,  see  note, 
27  Am.  &  Eng.  R.  Cas.,  app'x. 

Various  provisions  of  interstate  commerce  act 
construed,  see  note,  3  L.  R.  A.  444. 


INTERSTATE   COMMERCE,  12-lG. 


regard  is  strictly  and  carefully  limited. 
In  re  loioa  Barb  Steel  Wire  Co.,  i  Int. 
Com.  Rff).  605,  I  Int.  Coin.  Com.  17. 

Kates  on  interstate  traffic  may  be  regu- 
lated by  federal  authority,  with  reference  to 
trade  ctjnditions  and  circumstances  of  local- 
ities. Kiiiiffman  Milling  Co.  v.  Missouri 
Pac.  K.  Co.,  3  Int.  Com.  Rep.  400, 4  Int.  Com. 
Com.  417. 

1 2.  OrdcrH  I'or  HUHpciisioii  of  oper- 
ation of  act.— The  provision  of  section 
4  of  the  act  to  the  effect  that  the  com- 
mission may,  "  in  special  cases,  after  in- 
vestigation," authorize  carriers  to  charge 
less  for  longer  tlian  for  shorter  distances,  is 
only  intended  to  apply  to  exceptional  cases, 
and  where  only  general  reasons  operate,  the 
general  law  sliould  be  left  to  its  general 
course,  however  serious  may  be  tho  conse- 
quences in  particular  cases,  and  to  particular 
roads  and  interests.  Jurisdiction  of  Com- 
mission,  i  Int.  Com.  liep.  73. 

The  incidental  injuries  that  may  arise 
from  enforcing  the  above  provision  must 
be  borne  for  the  public  good,  until  congress 
provides  a  remedy.  Jurisdiction  of  Com- 
mission, I  Int.  Com.  Rep.  "]},. 

The  mere  probability,  or  even  certainty, 
that  injury  will  result  to  corporations  or  to 
individuals  is  not  in  itself  ground  for  sus- 
pension of  the  ordinary  operations  of  the 
provision.  Jurisdiction  of  Commission,  i 
Int.  Com.  Rep.  73. 

The  above  provision,  allowing  the  com- 
mission to  suspend  the  ordinary  operations 
of  the  statute,  is  to  be  closely  restricted, 
and  tlie  suspension  should  only  be  based  on 
an  investigation  which  would  satisfy  the 
commission  that  the  case  is,  in  fact,  excep- 
tional and  fairly  within  the  intent  of  the 
statute.  Jurisdiction  of  Commission,  i  Int. 
Com.  Rep.  73. 

1 3.  Sviieii  coiiNtriictiou  of  Eiii^Iisli 
iwt  adopted.— The  act,  having  adopted 
substantially  the  English  Railway  Traffic 
Acts  of  1854  and  1845,  §§  2  and  90,  the  set- 
tled construction  which  the  English  courts 
had  given  to  their  terms  and  provisions 
must  be  received  and  incorporated  into  the 
American  statute.  Interstate  Commerce 
Commission  v.  Baltimore  &*  0.  R.  Co.,  43 
Fed.  Rep.  37;  ajfirmed  in  145  U.  S.  263,  12 
Si/p.  Ct.  Rep.  844.— Following  McDonald 
V.  Hovey,  no  U.  S.  619,4  Sup.  Ct.  Rep. 
142. 

So  the  term  "undue  preference"  occurring 
in  both  statutes,  and  hiiviii'r  been  defined 


by  English  decisions,  before  the  adoption 
of  the  American  statute,  the  expression  in 
the  American  statute  mi49t  be  understood 
as  defined  by  the  English  decisions.  Inter- 
state Commerce  Commission  v.  Baltimore  <S* 
O.  R.  Co.,  43  Fed.  Rep.  37;  affirmed  in  145 
U.  S.  263,  1 2  Sup.  Ct.  Rep.  844. 

2.  Rowers  and  Duties  of  Commission, 

14.  Power  of  congress  to  create. — 
There  is  no  valid  ground  for  questioning 
the  authority  of  congress,  under  its  sov- 
ereign and  exclusive  power  to  regulate 
commerce  among  the  states,  to  create  com- 
missions for  the  purpose  of  supervising,  in- 
vestigating, and  reporting  upon  matteis  or 
complaints  connected  with  or  growing  out 
of  interstate  commerce.  Kentucky  &*  I. 
Bridge  Co.  v.  Louisville  &^  N,  R,  Co.,  37 
Fed.  Rep.  567,  2  //;/.  Com.  Rep.  351,  2  Z.  R. 
A.  289. 

And  the  same  reason  that  would  support 
the  power  of  the  states  to  create  coiumis- 
sions  for  the  control  of  commerce,  which  is 
entirely  subject  to  their  jurisdiction,  would 
support  the  power  of  the  United  States  to 
create  a  like  commission  for  the  control  of 
commerce,  which  comes  within  its  exclusive 
authority.  Kentucky  &*  I.  Bridge  Co.  v. 
Louisville  <&>•  N.  K.  Co.,  yj  Fed.  Rep.  567,  2 
Int.  Com.  Rep.  i<yi,2  L.  R.  A.  289. 

15.  May  institute  investif^ations 
without  formal  complaint.  —  Under 
section  13  of  the  act,  giving  the  commission 
power  to  institute  an  inquiry  on  its  own 
motion,  it  has  authority  to  institute  investi- 
gations and  to  deal  with  violations  of  the 
law  independently  of  a  formal  complaint,  or 
of  direct  damage  to  a  complainant.  In  re 
Grand  Trunk  R.  Co.,  2  Int.  Com  Rep.  496, 
3  Int.  Com.  Com.  89. 

16.  Power  over  rates,  generally.* 
— The  act  does  not  confer  upon  the  com- 
mission the  power  to  make  rates  generally, 
but  to  determine  only  whether  rates  im- 
posed by  railroads  are  in  conflict  with  the 
statute.  Thatcher  v.  Fitchburg  R.  Co.,  i 
Int.  Com.  Rep.  356. 

The  commission  has  no  power  to  order 
carriers,  not  parties  to  the  proceeding,  to 
raise  their  rate  to  overcome  a  deficiency  in 
the  cost  of  production  of  an  article  now  ex- 
isting, against  the  petitioner.  Pougkkeepsie 
Iron  Co.  V.  New  York  C.  &•  H.  R.  R.  Co.,  3 
Int.  Com.  Rep.  248,  4  Int.  Com.  Com.  195. 

*  Jurlsdicilon  and  power  of  interstate  com- 
merce commission,  ?e=  note,  2  L.  R.  A.  446. 


I. 


ri, 


K&.V  ^ 


;?»,' 


>,HP^ 


6 


INTKKSTATE   COMMERCE,  17,18. 


Wliere  a  miner  antj  shipper  of  coal  com- 
plains of  a  railroad  company  that  is  also  a 
miner  and  carrier  of  coal,  the  commission 
cannot  compel  the  company  to  keep  sepa- 
rate accounts  of  what  it  costs  for  the  trans- 
portation of  its  coal,  so  as  to  prevent  un- 
just discrimination  against  the  individual. 
Haddock  v.  Delaware,  L.  <S»  W.  R.  Co.,  3 
Int.  Coin.  Rep.  302,  4  Int.  Com.  Com.  296. 

1 7.  Power  to  compel  use  ol'earH  of 
n  certain  kind  —The  act  does  not  give 
the  commission  jurisdiction  to  order  the 
carrier  to  furnish  any  particular  equipment 
of  cars,  or  in  fact  any  cars  at  all.  The  latter 
part  of  section  3  only  applies  to  furnishing 
proper  facilities  for  the  interchange  of  traf- 
fic between  connecting  lines.  Scofield  v. 
Lake  Shore  <S-  M.  S.  R.  Co.,  2  Int.  Com.  Rep. 
bj.  2  Int.  Com,  Com.  90.  Rt'ce  v.  Cincinnati, 
W.  &*  B.  R.  Co.,  3  Int.  Com.  R.p.  841,  5 
Int.  Com.  Com.  193.— Adhering  to  Scho- 
field  V.  Lake  Shore  &  M.  S.  R.  Co.,  2  Int. 
Com.  Rep.  67,  2  Int.  Com.  Com.  116. 

The  provision  of  section  3  does  not  intend 
to  give  the  commission  power  to  compel 
railroad  companies  to  receive  and  run  the 
cars  of  a  private  car  company  over  its  line, 
or  to  contract  with  the  owners  of  such  cars  , 
for  the  use  thereof.  Worcester  Excursion 
Car  Co.  V.  Pennsylvania  R.  Co.,  2  Int.  Com, 
Rep.  792,  3  Int.  Com.  Com.  577. 

A  company  may  acquire  cars  by  construc- 
tion, by  purchase,  or  by  contract  for  their 
use,  and  no  one  has  the  power  to  compel  a 
company  to  select  among  these  several 
modes  or  to  contract  with  all  newcomers. 
Worcester  Excursion  Car  Co.  v.  Pennsyl- 
vania R.  Co.,  2  Int.  Com,  Rep.  792,  3  Int. 
Com.  Com.  577. 

The  public  is  only  interested  in  whether 
passenger  cars  belong  to  the  carrier  or  are 
obtained  from  a  car  company  in  so  far  as 
the  cars  are  safe,  comfortable,  furnished  at 
reasonable  rates  alike  to  all,  and  without 
unjust  discrimination.  The  law-making 
power  has  not  undertaken  to  divide  the  re- 
sponsibility with  a  carrier  in  the  selection 
of  cars,  nor  has  it  clothed  the  commission 
or  any  other  tribunal  with  such  power. 
Worcester  Excursion  Car  Co.  v.  Pennsyl- 
vania R.  Co.,  2  Int.  Com.  Rep.  792,  3  Int. 
Com.  Com.  577. 

Perhaps  nothing  would  be  more  opposed 
to  the  rights  and  safety  of  the  traveling 
public,  as  well  as  of  the  railroad  company, 
than  That  the  line  of  the  carrier  should  be- 
come an  arena  over  which  it  should  be  com- 


pelled to  make  a  contract  of  some  sort  with 
every  car  company  or  inventor  of  cars,  and 
transport  the  public  in  trains  of  whicl-  such 
cars  were  part.  Worcester  Excursion  Car 
Co.  V.  Pennsylvania  R.  Co. ,  2  Int.  Com.  Rep. 
792,  3  Int.  Com.  Com.  577. 

18.  Power  to  order  throiiifh  roiitcM 
or  rates.— A  court  of  equity  ha.':  no  power, 
either  at  common  law  or  under  the  inter- 
state commerce  act,  to  compel  a  railroad 
company  to  enter  into  a  contract  with  an- 
other company  for  a  joint  through  rate  and 
joint  through  routing  of  freight  and  passen- 
gers. Little  Rock  &>  M.  R.  Co.  v.  St.  Louis, 
I.  M.  6^  S.  R.  Co.,  42  Am.  &•  En);.  R.  Cas. 
490,  41  Eed.  Rep.  559.— Following  Little 
Rock  &  M.  R.  Co.  V.  East  Tenn.,  V,  &  G. 
R.  Co.,  3  Int.  Com.  Com.  i.— Quoted  in 
Interstate  Commerce  Commission  v.  Cin- 
cinnati, N.  O.  &  T.  P.  R.  Co.,  56  Fed.  Rep. 
925. 

The  act  does  not  require  connecting 
interstate  carriers  to  issue  through  tickets 
or  through  bills  of  lading  in  the  absence  of 
such  arrangements  between  the  companies. 
Kentucky  <S^•  /.  Bridge  Co,  v.  Louisville  <S^» 
N.  R.  Co.,  37  Eed.  Rep.  567,  2  L.  R.  A.  2S9, 
2  Int.  Com.  Rep.  351.— APPLYING  Chicago 
&  A.  R.  Co.  V.  Pennsylvania  R.  Co.,  i  Int. 
Com.  Rep.  294.  Following  Union  Pac. 
R.  Co.  V.  United  States,  117  U.S.  335,6 
Sup.  Ct.  Rep.  772.— Little  Rod  «&«•  AI.  R. 
Co.  V.  East  Tenn.,  V.  &^  G.  R.  Co.,  2  Int. 
Com.  Rep.  454,  3  /;//.  Com.  Com.  i.  — Fol- 
lowed IN  Little  Rock  &  M.  R.  Co.  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  42  Am.  &  Eng.  R. 
Cas.  490,  41  Fed.  Rep.  559.  Reviewed  in 
Little  Rock  &  M.  R.  Co.z/.  East  Tenn.,  V.  & 
G.  R.  Co.,  47  Fed.  Rep.  77\.—Mattingly  \. 
Pennsylvania  Co.,  2  Int.  Com.  Rep.  806,  3 
Int.  Com.  Com.  592.  Capehart  v.  Lonisv/l/e 
&>  N.  R.  Co.,  3  /;//.  Com.  Rep.  278,  4  /;//. 
Com.  Com.  265. 

The  commission  cannot  compel  a  rail  car- 
rier to  receive  freight  from,  or  deliver  it  to, 
a  steamboat  with  which  it  has  refused  to 
make  a  through  rate  and  to  do  through 
billing,  upon  the  prepayment  of  charges  for 
an  estimated  proportion  of  a  through  rate, 
equal  in  amount  to  that  which  the  rail  car- 
rier receives  from  a  steamboat  line  with 
which  it  has  an  arrangement  for  through 
rates  and  through  billing.  Capehart  w 
Louisville  &^  N.  R.  Co.,  3  Int.  Com.  Rep.  278, 
4  Int.  Com.  Com.  •:6s. 

Carriers  by  water  are  not  in  terms  brought 
under  the  regulation  of  the  interstate  com- 


INTERSTATE    COMMERCE,  10-2I. 


incicc  act,  to  which  carriers  by  rail  are  sub- 
jected, except  "  when  both  arc  used  under 
a  common  control,  maniij;ement,  or  arrange- 
ment for  a  continuous  carriage  or  sliip- 
ment";  therefore  tiie  commission  is  not  em- 
powered to  compel  a  railroad  company  to 
enter  into  arrangements  with  carriers  by 
water  for  through  carriage  at  througli  rates. 
In  re  Joint  Water  (S^*  Kail  Lines,  2  Int. 
Com.  Rep.  486,  2  ////.  Com.  Com.  645. 

The  fact  that  a  carrier  by  rail  has  made 
an  arrangement  for  through  rates  on  one  of 
its  branches  with  a  carrier  by  water,  does 
not  subject  it  to  a  :arge  of  unjust  dis- 
crimination if  it  refuses  to  mak^*  such  ar- 
rangemen'  on  other  parts  of  its  road,  es- 
pecially where  it  appears  that  it  already  has 
an  arrangement  for  a  more  direct  route  at 
the  same  rates.  In  re  Joint  Water  &*  Kail 
Lines,  2  /;//.  Com.  Kep.  486,  2  Int.  Com. 
Com.  645. 

Where  several  railroads  each  cross  or 
touch  a  navigable  river,  leaving  a  large  ter- 
ritory along  and  near  the  river  and  be- 
tween their  lines  that  can  be  served  only  by 
steamboats,  and  in  connection  with  steam- 
boats these  rail  carriers  carry  freight  to 
and  receive  it  from  this  territory  at  points 
where  they  touch  or  cross  the  river  respec- 
tively, they  may  make  through  rates  with 
only  one  line  of  steamboats,  and  refuse  to 
make  such  through  rates  with  other  steam- 
boats, on  the  river,  and  this  is  neither  un- 
just discrimination  nor  unlawful  prefer- 
ence. Capehart  v.  Lciiisviile  (S-  A'.  K, 
Co.,  3  Int.  Com.  Kep.  27 S,  4  Int.  Com.  Com. 
265. 

10.  Power  over  truiiMactioiis  be- 
fore i>us8n{;c  of  the  act.-  The  act  does 
not  afford  a  remedy  for  transactions  occur- 
ring before  it  took  effect.  Ottinger  v. 
Southern  Pac.  A.  Co.,  i  Int.  Com.  Kep.  607, 
I  /;//.  Com.  Com.  144. 

The  commission  has  no  power  to  enforce 
a  contract.  So  it  cannot  assume  control  of 
an  alleged  violation  of  the  terms  of  a  con- 
tract entered  into  before  the  commission 
was  created,  between  a  traders'  and  travel- 
ers' association  and  the  carrier,  by  which 
the  members  of  the  association  secured  cer- 
tain rights  in  the  transmission  of  baggage. 
Traders'  &*  T.  Union  v.  Philadelphia  &>  R. 
K.  Co.,  I  Int.  Com.  Rep.  371,  i  Int.  Com. 
Com.  122. 

The  commission  has  no  power  to  compel 
a  carrier  to  answer  for  a  wrong  committed 
before  the  adoption  of  the  act.     Holbrook  v. 


St.  Paul,  M.  &•  M.  K.  Co.,  i  ^nt.  Com.  Kep. 

323- 

A  complaint  is  fatally  defective  which 
charges  a  railroad  company  with  a  wn^ng 
prior  to  the  passage  of  the  act,  but  fails  to 
state  any  violation  of  the  law  after  its  pas- 
sage. White  V.  Michii^nn  C.  K.  Co.,  2  ////. 
Com.  Kep.  641,  3  /;//.  Com   Com,  281. 

20.  Power  over  i>r4>-e.\i.stiiitr  eoii- 
tract8  —  CoiiMtitiitloiiality  of  act.— 
The  interstate  coiMinerce  act  is  p  ^lolice 
regulation,  and  n  fact  that  it  might  pre- 
vent the  enfoi cement  of  1  lo-cxisting  con- 
tracts does  not  aflect  its  v  ilidity,  or  make 
it,  in  a  constitutional  .sense,  a  law  impairing 
the  obligation  of  contracts.  Kentucky  &•  I. 
Bridge  Co.  v.  Louisville  &^  N.  K.  Co.,  2  Int. 
Com.  Kep.  102,  2  Int.  Com.  Com.  162.  dul- 
lard V.  Northern  Pac.  K.  Co.,  45  Am  &• 
Eng.  K.  Cas.  234,  10  Mont.  168,  25  Pac.  Kep. 
120. 

The  provision  prohibiting  discrimination 
is  applicable  to  contracts  made  prior  to  its 
enactment.  And  a  contract  made  by  an 
interstate  carrier  prior  to  the  passage  of  the 
act  is  invalid,  if  it  provides  for  lower  rates 
for  the  transportation  of  property  than  those 
made  to  the  public  generally  for  like  ser- 
vices. Southern  Wire  Co.  v.  St.  Louis  B. 
&*  T.  K.  Co.,  38  Mo.  App.  191. — QuoTiNO 
Rc.hschild  v.  Wabash  R.  Co.,  15  Mo.  App, 
242.  Reviewing  Christie  v.  Missouri  Pac. 
R.  Co.,  94  Mo.  453.  ' 

Under  the  provisions  prohibiting  unjust 
discrimination  by  common  carriers,  a  con- 
tract made  prior  to  th«  passage  thereof  for 
the  transportation  of  freight  under  terms 
and  at  rates  contrary  to  the  provisions  of 
the  law,  cannot  be  enforced  against  the  car- 
rier to  recover  rebates  due  upon  freight  car- 
ried after  the  law  had  taken  effect.  lUiUard 
v.  Northern  Pac.  K.  Co..  45  Am.  &^  K<ig.  K. 
Cas.  234,  10  Mont.  168,  25  Pac.  Kep.  120. — 
Quoting  Kentucky  k  1.  Bridge  Co.  v. 
Louisville  &  N.  R.  Co.,  34  Am.  &  Eng.  H. 
Cas.  630,  I  Int.  Com.  Rep.  703;  Gibbons  ?'. 
Ogden,  9  Wheat.  (U.  S.)  i. 

3.  Carriers  Subject  to. 

21.  Generally.— The  act  is  intended 
to  regulate  all  the  commerce  subject  to  the 
exclusive  jurisdiction  of  congress,  including 
the  agents  and  instrumentalities  employed 
and  the  commodities  carried,  with  only  the 
limitations  found  in  the  act  itself.  Mat- 
tingly  V.  Pennsylvania  Co.,  2  Int.  Com.  Kep. 
806,  3  Int.  Com.  Com.  592. 


^1 


INTERSTATE   COiMMERCE,  22. 


ii 


Goods  shipped  from  one  state  to  another 
are  interstate  traffic,  and  all  the  roads  form- 
ing a  part  of  the  line  over  which  iliey  are 
carried  are  subject  to  the  act.  James  &> 
M.  Bujigy  Co.  V.  Cincinnati,  N.  0.  &^  T.  P. 
A\  Co.,  3  /«/.  Com.  Rep.  682,  4  Int.  Com. 
Com.  7J4. 

A  railroad  company  whose  line  is  entirely 
within  one  state  becomes  subject  to  the  act 
where  it  issues  through  bills  of  lading  over 
connectins;  lines  to  points  in  other  states, 
and  makes  through  rates.  In  re  Annapolis, 
W.^"  B.  R.  Co..  I  /;//.  Cofn.  Rep.  315. 

A  short  road  entirqly  in  one  state,  but 
used  as  a  means  of  conducting  interstate 
traffic  by  connecting  interstate  roads,  is 
subject  to  the  act.  Heck  v.  East  Tenn.,  V. 
&*  G.  R.  Co.,  I  Int.  Com.  Reii.  775,  i  Int. 
Com.  Com.  495. 

When  a  carrier  in  one  state  engages  in 
interstate  commerce,  it  becomes  a  national 
agency  and  subjects  itself  to  the  provisions 
of  the  interstate  commerce  act  for  all  the 
legitimate  purposes  of  such  commerce,  and 
must  accept  and  forward  the  traffic  offered 
indifferently,  without  unjust  discrimination 
or  undue  preference.  Mattingly  v.  Penn- 
sylvania Co.,  2  Int.  Com.  Rep.  806,  3  Int. 
Com.  Com.  592. 

22.  Carriers  under  "a  coinnion 
control,  nianaifeiucnt,  or  nrrauKC- 
nient." — The  act  does  not  include  or 
apply  to  all  carriers  engaged  in  interstate 
commerce,  but  only  such  as  use  a  railway, 
or  a  railway  and  water  craft,  "  under  com- 
mon control,  management,  or  arrangement 
for  a  continuous  carriage  or  shipment "  of 
property  from  one  state  to  another ;  nor 
does  it  apply  to  the  carriage  of  property  by 
rail  wholly  witiiin  the  state,  although 
shipped  from  or  destined  to  a  place  without 
the  state,  so  that  such  place  is  not  in  a 
foreign  country.  Ex  parte  Koehler,  30  Am. 
&^  Eng.  R.  Cas.  71,  30  Fed.  Rep.  867,  12 
Saivy.  (U.  S.)  341. 

To  come  wiiiiin  the  meaning  of  the  words 
"  common  control,  management,  or  arrange- 
ment for  a  continuous  carriage  or  ship- 
ment," as  used  in  section  i  of  the  act,  there 
need  not  be  a  control  of  the  through  line" 
centred  in  a  single  source  of  autliority,  but 
if  the  different  carriers  have  invited  inter- 
state traffic  over  their  roads,  which  is  in- 
tended to  be  continuous,  arid  have  arranged 
their  business  so  that  the  continuity  of  the 
shipment  shall  be  preserved,  and  have  com- 
bined their  several  lines,  and  by  preparatory 


measures  have  provided  for  the  reception, 
carriage,  and  delivery  of  the  traffic,  it  comes 
within  the  statute.  Boston  F.  &•  P.  Exch. 
V.  Neiv  York  <S^  N.  E.  R.  Co.,  3  Int.  Com. 
Rep.  493,  4  Int.  Com.  Com.  664. 

So  where  an  initial  carrier  furnishes  a 
shipper  with  a  car  specially  fitted  up  for 
carrying  fruit,  and  it  is  transported  over  the 
different  lines  without  breaking  the  bulk  of 
the  car-load,  and  through  time-tables  are 
adopted  so  as  to  hasten  the  transit,  and  a 
single  freight  charge  is  made,  but  divided 
between  the  carriers  according  to  contract 
between  themselves,  the  shipment  is  within 
the  meaning  of  the  above  section.  Boston 
F.  (S-  P.  Exch.  V.  New  York  A^  N.  E.  R.  Co., 
3  ////.  Com.  Rep.  493,  4  hit.  Com.  Com.  664. 

The  phrase  "common  control,  manage- 
ment, or  arrangement  for  continuous  car- 
riage or  shipment  "  in  the  first  section  of 
the  act  is  intended  to  cover  all  interstate 
traffic  carried  through  over  all  rail  or  part 
water  and  part  rail  lines.  Georgia  R.  Com- 
mission V.  Clyde  Steamship  Co.,  5  Int.  Com. 
Com.  324. 

The  total  rate  for  through  carriage  over 
two  or  more  lines,  whether  made  by  the 
addition  of  established  locals,  or  of  through 
and  local  rates,  or  upo:i  a  less  proportionate 
b;^-,is,  is  the  through  rate  that  is  subject  to 
scrutiny  by  the  regulating  authority  ;  how 
the  rate  is  made  is  only  material  c  bearing 
upon  the  legality  of  the  aggregate  charge, 
and  how  any  reduction  may  be  accomplished 
is  a  matter  for  the  carriers  to  determine 
among  themselves.  Georgia  R.  Commission 
V,  Clyde  Steamship  Co.,  5  Int.  Com.  Com.  324. 

The  "arrangement,"  within  the  meaning 
of  the  above  section,  for  the  continuous 
carriage  or  shipment  is  complete  whenever 
the  carriers  have  arranged  for  delivering 
and  receiving  through  traffic  to  and  from 
each  other,  and  such  arrangement  is  nec- 
essarily " common."  Georgia  R.  Commission 
V.  Clyde  Steamship  Co.,  5  Int.  Com.  Com. 
324- 

Where  the  last  of  connecting  carriers  re- 
quests the  preceding  carriers  that,  in  issuing 
bills  of  lading  for  intermediate  stations  on 
its  road,  no  rates  shall  be  inserted,  and 
there  is  no  agreement  for  a  joint  through 
rate  to  its  local  stations,  but  where  it  ccjI- 
lects  and  retains  the  full  local  rate  on  all 
freights  so  shipped,  there  is  no  arrangement 
for  a  "continuous  carriage  or  shipment" 
under  "a  common  control,  management,  or 
arrangement,"  within  the  meaning  of  sec- 


INTIiRSTATE   COMMERCE,  23-27. 


9 


tion  I  of  the  Interstate  Commerce  Act.  In- 
terstate Commerce  Commission  v.  Cincinnati, 
A'.  O.  &'  T.  P.  R.  Co.,  56  J''eii.  Rep.  925. 

The  fact  that  such  carrier  receives  freights 
from  otlier  roads  which  have  been  shipped 
on  through  bills  ot  lading  on  the  quoted 
through  rates,  does  not  bring  the  carrier 
within  the  above  provision,  where  it  ap- 
pears that  the  through  rate  quoted  is  the 
full  local  rate  on  the  last  road.  Interstate 
Commerce  Commission  v.  Cincinnati,  N,  O. 
&^  T.  P.  R.  Co.,  56  Feti.  Rep.  925. 

23.  Express  companies.*  —  Compa- 
nies that  are  organized  to  do  an  express 
business  only  are  not  subject  to  the  pro- 
visions of  the  Interstate  Commerce  Act. 
Uvited  States  v.  Morsman,  42  Fed.  Rep.  448. 
— Following  In  re  Express  Companies,  i 
Int.  Com.  Com.  349,  i  Int.  Com.  Rep.  677. 

So  an  indictment  which  charges  that  an 
express  company  is  "a  corporation  and 
commoTi  carrier  engaged  in  the  transporta- 
tion of  property  by  railroad  from  one  state 
to  other  states,"  does  not  bring  the  com- 
pany within  the  provisions  of  the  statute, 
unless  it  appears  further  that  the  express 
business  is  carried  on  as  a  part  of  a  rail- 
road business.  United  States  v.  Morsman, 
42  Fed.  Rep.  448. 

Where  the  business  of  express  companies 
is  interstate  tliey  are  subject  to  the  opera- 
tion of  tlie  act.  In  re  Express  Companies,  i 
Int.  Com.  Rep.  22. 

Independent  express  companies  are  not 
included  among  the  common  carriers  sub- 
ject to  the  act;  but  it  is  otherwise  if  the  ex- 
press business  is  carried  on  by  a  railroad 
company.  In  re  Express  Companies,  i  Int. 
Com.  Rep.  677,  i  Int.  Com.  Com.  349. — Ap- 
plied IN  Pacific  Exp.  Co.  v.  Seibert,  44 
Fed.  Rep.  310.  Followed  in  United 
S'.iiie-i  V.  Morsman,  42  Fed.  Rep.  448. 

24.  Northern  Pacific,  Railroad.— 
Tiie  prov  isions  of  the  charter  of  the  North- 
ern Pacific  R.  Co.,  that  its  directors  "shall, 
from  time  to  time,  fix,  determine,  and  regu- 
late fares,  tolls,  and  charges,"  except  that 
they  shall  be  "  subject  to  such  regulations 
as  congress  may  impose,  restricting  the 
charges  for  government  transportation," 
does  not  give  the  directors  exclusive  con- 
trol over  all  rates  and  fares,  except  for  gov- 
ernment  transportation,   so  as  to  prevent 


*  Express  companies  not  subject  to  provisions 
of  Interstate  Commerce  Act,  see  45  Am.  &  Eng. 
R.  Cas.  247,  abstr. 


regulation  by  the  commission.  Raworth  v. 
Northern  Pac.  R.  Co.,  3  Int.  Com.  Rep.  857, 
5  Int.  Com.  Com.  234. 

Neither  does  the  fact  that  the  road  was 
built,  and  the  company's  bonds  sold  under 
the  faith  of  the  permanency  of  such  pro- 
vision in  the  charter,  constitute  such  a  con- 
tract  that  would  prevent  congress  from  sub- 
sequently making  it  subject  to  government 
regulation  through  the  commission,  where 
the  right  is  reserved  to  "add  to,  alter, 
amend,  or  repeal  "  the  charter.  Raworth  v. 
Northern  Pac.  R.  Co.,  3  Int.  Com.  Rep.  857, 
5  Int.  Com.  Com.  234. 

25.  Act  does  not  extend  to  ininii- 
y:rauts  arrivin;;  at  port  oi*  New  Yorl{. 
— The  reception  of  immigiantsat  the  port 
of  New  York  is  so  far  under  the  control  of 
the  state  board  of  commissioners  of  emigra- 
tion, acting  with  the  federal  government, 
that  the  commission  has  no  authority  to 
interfere  with  their  regulations  touching 
the  sale  of  railroad  tickets  for  their  further 
transportation  from  New  York  to  interior 
points  in  the  United  States.  Savery  v.  Neiv 
York  C.  6-  H.  R.  R.  Co.,  2  Int.  Com.  Rep. 
210,  2  Int.  Com.  Com.  338. 

And  where  the  commission  has  not  au- 
thority to  interfere  directly  with  the  emi- 
gration commissioners,  it  cannot  interfere 
to  prevent  the  carrying  out  of  any  arrange- 
ment made  between  such  commissioners 
and  railroad  companies  for  the  transporta- 
tion of  immigrants.  Savery  v.  New  York 
C.  6-  H.  R.  R.  Co.,  2  Int.  Com.  Rep.  210, 
2  Int.  Com.  Com.  338. 

20. nor  to  goods  between  port 

of  entry  and  a  foreign  country.— Con- 
gress dof^s  not  undertake  to  regulate  trans- 
portation on  the  high  seas  nor  at  the  foreign 
ports  of  shipment,  nor  in  the  foreign  coun- 
try adjacent  to  the  United  States;  but  as 
soon  as  that  commerce  is  brought  through 
1  port  of  entry  in  the  United  States,  upon  a 
through  bill  of  lading,  destined  to  a  place 
in  the  United  States,  by  a  carrier  either  by 
land  or  water,  for  transportation  to  its  place 
3f  destination,  it  then  becomes  subject  to 
r.gulation  under  the  statute.  New  York 
Board  of  Trade  &*  Transp.  v.  Pennsylvania 
R.  Co.,  3  Int.  Com.  Rep.  417,4  Int.  Com. 
Com.  447. 

27.  Bridges. — A  bridge  company  which 
merely  owns  a  bridge  on  which  tracks  are 
laid,  but  which  solicits  freights  and  loads 
them  in  cars  furnished  by  ;.he  rnilroad  com- 
panies, and  runs  them  across  the  bridge,  but 


10 


INTERSTATE   COMMERCE,  28,  20. 


makes  no  charge  except  the  regular  bridge 
toll,  IS  not  a  common  carrier,  so  as  to  be 
subject  to  regulation.  Kentucky  6-  /.  Bridge 
Co.  V.  Louisville  &*  N.  R.  Co.,  yj  Fed.  Rep. 
567,  2  L.  R.  A.  289,  2  Int.  Com.  Rep.  351. 

Neither  does  a  franchise  to  such  company 
giving  it  the  power  to  build,  maintain,  and 
operate  a  bridge  with  approaches,  on  which 
tracks  are  laid  and  freijiht  cars  moveci.  con- 
stitute such  company  a  common  carrier,  as 
such  franchise  does  not  give  it  the  right 
to  charge  compensation  for  transporting 
freight  or  passengers.  Kentucky  <S«»  /. 
Bridge  Co.  v.  Louisville  iS-  N.  R.  Co.,  37 
Fed.  Rep.  567,  2  L.  R.  A.  289,  2  Int.  Com. 
/vV/.  351. 

Where  railroad  companies  acquire  the 
right  by  contract  to  have  their  cars  trans- 
ported across  such  a  bridge,  they  are  deemed 
the  owners  and  operators  of  the  bridge, 
within  the  meaning  of  the  Interstate  Com- 
merce Act,  section  i,  so  as  to  make  them 
subject  to  regulation,  and  not  the  company 
owning  the  bridge.  Kentucky  &"  I.  Bridge 
Co.  V.  Louisville  &^  N.  R.  Co.,  yj  Fed.  Rep. 
567,  2  L.  R.  A.  289,  2  Int.  Com.  Rep.  351. 

The  paramount  authority  of  congress, 
under  the  cf^mmerce  clause  of  the  constitu- 
tion, over  all  navigable  waters  of  the  United 
States  is  well  established ;  but  until  con- 
gress exercises  its  superior  r'ght  of  control 
and  regulation,  the  states  or  state  within 
whose  territorial  limits  such  waters  are  lo- 
cated may  authorize  the  erection  of  bridges 
across  the  same,  and  such  structures  are  not 
unlawful  until  so  declared  by  congress. 
R/wa  v.  Newport  News  &*  M.  V.  R.  Co.,  52 
Am.  &•  Eng.  R.  Cas.  657,  50  Fed.  Rep. 
16. 

In  respect  to  bridges  over  navigable  wa- 
ters within  the  limits  of  a  state,  non-action 
by  congress  is  not  a  declaration  that  such 
waters  must  remain  free  and  unobstructed ; 
but  the  state's  authority  over  the  same  may 
be  exercised  to  the  extent,  at  least,  of  per- 
mitting and  authorizing  the  establishment 
of  ferries  and  bridges  over  the  same,  neces- 
sary or  convenient  for  either  local  or  inter- 
state commerce.  Rhea  v.  Newport  News  &* 
M.  V.  R.  Co.,  52  Am.  6-  Eng.  R.  Cas.  657, 
50  Fed.  Rep.  16. 

Navigable  waters  lying  within  the  limits 
of  a  state  are  both  state  and  national  in 
their  character,  with  a  paramount  right  of 
control  or  regulation  in  the  general  govern- 
ment, when  congress  chooses  to  exercise 
the  authority  over  the  same;  but  until  such 


authority  is  exercised  the  jurisdiction  and 
power  of  the  state  to  authorize  and  regu- 
late bridges  over  the  same  is  clear ;  and  the 
fact  that  the  water  is  an  interstate  stream 
does  not  alter  the  rule.  R/iea  v.  Newport 
News  &*  M.  V.  R-  Co.,  52  Am.  <S^•  Eng.  R. 
Cas.  657,  50  Fed.  Rep.  16. 

28.  Grain  elevators.— A  contract  by 
which  an  elevator  company  agrees  to  erect 
a  building  for  receiving,  storing,  and  deliv- 
ering c\\  grain  that  shall  be  received  by  a 
railroad  cv:.iipany,and  by  which  the  railroad 
company  agrees  that  the  elevator  company 
shall  handle  all  through  grain  at  a  fixed 
compensation  per  bushel,  is  not  repug- 
nant to  the  commercial  power  of  congress, 
nor  in  contravention  of  public  policy.  Z>u- 
buque  <S^  5.  C.  R.  Co.  v.  Richmond,  19  Wall, 
{l/.  S.)  584,  7  Am.  Ry.  Rep.  235. 

20.  Carriers  whose  duties  be^^iii 
anil  terminate  in  same  state.* — Where 
the  initial  carrier  does  not  extend  beyond 
the  state  and  he  has  nothing  to  do  in  trans- 
porting goods  beyond  the  state,  the  fact 
that  they  are  intended  for  an  ultimate  des- 
tination beyond  the  state  does  not  make 
the  shipment  interstate  so  as  to  subject 
the  initial  carrier  to  regulation.  Missouri 
(S""  /.  A'.  T.  &*  L.  Co.  v.  Cape  Girardeau  (3-» 
5.  IV.  R.  Co.,  I  Int.  Com.  Rep.  607,  i  I/it. 
Com.  Com.  30. 

The  provision  to  section  i  "  that  the  pro- 
visions of  this  act  shall  not  apply  to  the 
transportation  of  passengers  or  property,  or 
to  the  receiving,  delivering,  storage,  or 
handling  of  property,  wholly  within  one 
state,  and  not  shipped  to  or  from  a  foreign 
country  from  or  to  any  state  or  territory  as 
aforesaid,"  only  excludes  from  regulation 
the  purely  internal  commerce  of  a  state, 
that  which  is  confined  within  its  limits, 
which  originates  and  ends  in  the  same  state. 
Mattingly  v.  Pennsylvania  Co.,  2  Int.  Cow. 
Rep.  806,  3  Int.  Com.  Com.  592. 

Traffic  destined  to  another  state  is  not 
interstate  if  the  delivery  by  the  carrier  is 
made  in  the  same  state  where  the  rates  were 
made  and  the  traffic  originated.  So  held, 
where  goods  were  shipped  in  New  Jersey 
for  New  York  city,  but  delivered  by  the  car- 
rier in  New  Jersey  opposite  the  city.  New 
Jersey  Fruit  Exch.  v.  Central  R.  Co.,  2  Int. 
Com.  Rep.  84,  2  Int.  Com.  Com.  142. 


*  A  carrier  confined  to  one  state,  but  actin'j 
as  a  link  in  through  carriage,  not  subject  to  stale 
regulation,  see  note,  17  L.  R.  A.  643. 


*Char 
be  reasoi 
R.  A.  44 


INTERSTATE   COMMERCE,  30-32. 


11 


4.  Just  and  Reasonable  Charges. 

30.  Charges  at  coiiiinon  law.— Prior 

to  the  enactment  of  the  Interstate  Com- 
merce Law  railway  traffic  was  regulated  by 
tlie  principles  of  the  common  law,  which 
demanded  little  more  than  that  the  carriers 
should  carry  for  all  persons  who  applied,  in 
the  order  in  which  the  goods  were  deliv- 
ered, and  that  the  charges  for  transportation 
should  be  reasonable.  Many  authorities 
held  that  they  were  not  bound  to  make  the 
same  charge  to  all  persons  for  the  same  ser- 
vice. Interstate  Commerce  Commission  v. 
Baltimore  <S-  O.  R.  Co.,  145  U.  S.  263, 
12  Sup.  Ct.  Rep.  844.  Missouri  Pac.  R.  Co, 
V.  Texas  &•  P.  R.  Co.,  28  Am.  &*  Eng.  R, 
Cas.  1 ,  30  Fed.  Rep.  2. 

31.  Keasonableuess  of  charges, 
generally.*— All  charges  must  be  reason- 
able and  just;  and  no  discrimination  can  be 
made  in  rates,  charges,  or  facilities.  Cutting 
V.  Florida  R.  &*  N.  Co.,  30  Fed.  Rep.  663. 

It  is  not  a  sufficient  compliance  with  the 
statute  that  rates  are  reasonable  in  them- 
selves, but  they  must  be  so  relatively  rea- 
sonable as  to  protect  communities  and  busi- 
ness from  unjust  discrimination.  Boards  of 
Trade  Union  v.  Chicago,  M.  &*  St.  P.  R.  Co., 
i  Int.  Com.  Rep.  608,  i  Int.  Com.  Com.  215. 

When  circumstances  will  fairly  admit  of 
it,  charges  to  all  points  for  like  services 
should  be  made  relatively  equal.  Crews  v. 
Richmond  &•  D.  R.  Co.,  i  Int.  Com.  Rep. 
703,  I  Int.  Com.  Com.  401. 

Under  the  statute,  it  is  not  necessary,  to 
render  a  preference  in  rates  unlawful,  that 
it  should  be  accomplished  by  any  "device." 
Scofield  V.  Lake  Shore  Si^AI.  S.  R.  Co.,  2  Int. 
Coin.  Rep.  67,  2  Int.  Com.  Com.  90, 

Where  an  advance  is  made  in  rates  which 
have  long  been  maintained,  and  the  evi- 
dence shows  that  the  traffic  affected  is 
large,  important,  and  constantly  increasing, 
the  advance  will  be  held  unjust,  unless  it  is 
satisfactorily  «  explained.  Railroad  Com- 
mission v.  Savannah,  F.  S^  W.  R.  Co.,  3 
Int.  Com.  Rep.  688,  5  Int.  Com.  Com.  13. 

The  latter  part  of  section  2  of  the  act 
expressly  requires  that  charges  shall  be 
"  reasonable  and  just,"  and  empowers  the 
commission  to  enforce  its  provisions. 
Perry  v.  Florida  C.  &'  P.  R.  Co.,  3  Int.  Com. 
Rep.  740,  5  Int.  Com.  Com.  97. 


*Chargcs  under  Interstate  Commerce  Act  must 
be  reasonable  and  fairly  adjusted,  see  note,  a  L. 
R.  A.  444, 


Rates  should  bear  a  fair  and  reasonable 
relation  to  the  antecedent  cost  of  the  traffic 
as  delivered  to  the  carrier  and  to  the  com- 
mercial value  of  such  traffic ;  but  it  is  in- 
cumbent on  parties  to  make  <- .tisfactory 
proof  as  to  such  antecedent  cost  and  com- 
mercial value.  Loud  v.  South  Carolina  R. 
Co.,  5  Int.  Com.  Com.  529. 

A  reduction  in  rates  is  not  in  itself  an  ac- 
knowledgment that  the  former  rates  were 
unreasonable,  as  such  reduction  may  be 
accounted  for  because  of  a  decrease  in  cost 
of  transportation  and  an  increase  in  the 
volume  of  the  traffic.  Loud  v.  South  Caro- 
lina R.  Co.,  5  Int.  Com.  Com.  529. 

32.  Rules  for  determining  whether 
charges  are  reasonable  or  not.— A 
variety  of  considerations  of  a  very  practical 
nature  must  always  enter  into  the  making 
of  freight  rates  by  railroad  companies,  and 
should  go  very  far  in  determining  the  ques- 
tion of  whether  such  rates  are  reasonable  or 
unreasonable.  Evans  v.  Oregon  R.  &•  Al. 
Co.,  I  Int.  Com.  Rep.  641,  i  Int.  Com.  Com. 

325. 

Theory  and  conjecture  merely  are  not 
enough  ;  a  comparison  of  one  isolated  rate 
with  another  is  not  sufficient;  the  whole 
field  must  be  considered  in  order  to  ap- 
proximate justice,  and  at  best  the  result 
cannot  be  regarded  as  other  than  an  ap- 
proximation. Howell  V.  New  York,  L.  E. 
(S-  W.  R.  Co.,  2  Int.  Com.  Rep.  162,  2  Int. 
Com.  Com.  272. 

In  making  through  rates,  questions 
whether  the  road  passes  through  a  sparsely 
or  well  settled  country  the  amount  of  local  . 
freighf,,  the  character  of  the  freight  as 
affecting  the  cost  of  handling  it,  the  fluctua- 
tion during  the  year,  and  other  circum- 
stances, must  be  considered  in  fixing  the 
rates.  Evans  v.  Oregon  R.  &•  N'.  Co.,  i  Int. 
Com.  Rep.  641,  i  Int.  Com.  Com.  325. 

The  fact  that  an  article  cannot  be  shipped 
at  a  named  rate  is  not  conclusive  evidence 
that  the  rate  is  unreasonable.  Distance, 
proximity  of  other  producers  of  the  same 
article,  necessary  expenses  of  transporta- 
tion, competing  water  routes,  and  other 
causes  may  make  a  reasonable  rate  too 
high  to  make  the  shipment  of  a  certain 
article  profitable.  Riddle  v.  New  York,  L. 
E.  <S-  W.  R.  Co.,  I  Int.  Com.  Rep.  787,  i  Int. 
Com.  Com.  594. 

The  value  of  the  article  shipped  should 
be  taken  into  account  in  fixing  a  rate,  as 
the  liability  of  the  carrier  is  greater  accord- 


12 


INTERSTATE   COMMERCE,  ^3,  34. 


ing  to  the  value  of  the  articles  shipped. 
Howell  \.  Neiv  York,  I..  E.  '&>  W.  A'.  Co.,  2 
Int.  Com.  Rep.  162,  2  Int.  Com.  Com.  272. 

Evidence  that  the  rates  for  carrying  a 
certain  article  are  higher  in  certain  cases 
than  certain  other  rates,  and  that  tiiey  pro- 
duce a  large  revenue  to  the  carrier,  is  not 
prima-fiUie  evidence  that  they  are  unrea- 
sonable. The  reasonableness  of  the  rate 
niusi  be  determined  by  reference  to  all  of 
the  attending  circumstances  and  relations. 
liinvell  v.  New  York,  L.  E.  &>  IV.  R.  Co.,  2 
/;;/.  Com.  Rep.  162,  2  Int.  Com.  Com.  272. 

The  New  Orleans  cotton  exchange  com- 
plained of  a  falling  of!  in  the  amount  of 
cotton  annually  received  in  that  city,  and 
alleged  as  a  cause  th;it  defendant  railroad 
company  discriminated  in  rates  against  the 
city,  which  diverted  cotton  to  other  mar- 
kets. Held,  that  in  considering  the  ques- 
tion, the  recent  construction  of  several  all 
rail  lines,  from  points  that  formerly  shipped 
through  New  Orleans,  to  eastern  ports  and 
markets,  must  be  considered.  New  Orleans 
Cotton  Exch.  v.  Cincinnati,  N.  O.  <3>»  T.  P. 
R.  Co.,  2  Int.  Com.  Rep.  289,  2  Int.  Com. 
Com.  375. 

Whether  railroad  companies  combme  or 
act  separately  in  making  rates  and  charges 
is  not  so  important;  the  essential  require- 
ment is  that,  however  made,  they  shall  be 
reasonable  of  themselves,  and  so  fairly  ad- 
justed as  to  be  reasonable  in  their  relations 
to  each  other  and  in  their  results.  New 
Orleans  Cotton  Exch.  v.  Cincinnati,  N.  O.  &* 
T.  P.  R.  Co.,  2  Int.  Com.  Rep.  289,  2  Int. 
Com.  Com.  375. 

The  fact  that  a  road  earns  little  more 
than  operating  expenses  is  not  to  be  over- 
looked in  fixing  rates;  but  it  cannot  be 
made  to  justify  grossly  excessive  rates. 
Wherever  there  are  more  roads  than  the 
business  at  fair  rates  will  remunerate  they 
must  rely  upon  future  earnings  for  the  re- 
turn of  investments  and  profits.  New  Or- 
leans Cotton  Exch.  v.  Cincinnati,  N.  0.  &* 
T.  P.  R.  Co.,  2  Int.  Com.  Rep.  289,  2  Int. 
Com.  Com.  375. 

When  the  reasonableness  or  relative  rea- 
sonableness of  charges  is  challenged,  every 
material  consideration  which  enters  into 
the  making  of  such  charges  is  pertinent  to 
the  inquiry;  which  would  include  the  pro- 
portion paid  to  connecting  lines,  fames  v. 
Camuiian  Pac.  R.  Co.,  5  Int.  Com.  Com.  612. 

And  the  question  whether  the  tales  af- 
ford the  carrier  a  proper  return  for  the  ser- 


vice rendered  is  to  be  considered,  as  well  as 
the  result  of  the  business  to  the  shipper  or 
producer  of  the  traffic.  Louil  v.  South  Car- 
olina R.  Co.,  5  Int.  Com.  Com.  529. 

33.  Charges  that  were  held  rea> 
sonable.— Rates  that  are  just  and  reason- 
able from  selected  manufacturing  points, 
through  the  entire  territory  east  of  Missouri 
river  and  west  of  the  Atlantic  seaboard,  are 
prima  facie  just  and  reasonable  from  all 
other  points  in  the  same  territory.  In  re 
Tariffs  of  the  Transcontinental  Lines,  2 
Int.  Com.  Rep.  203,  2  Int.  Com.  Com.  324. 

The  sum  of  23^  cents  per  100  pounds,  or 
$4.70  per  ton,  on  wheat  transported  by  rail 
from  Walla  Walla,  Wash.,  to  Portland, 
Oreg.,  a  distance  of  246  miles,  was  fixed  as 
reasonable.  Evans  v.  Oregon  R.  &*  N.  Co., 
I  Int.  Com.  Rep.  641,  i  Int.  Com.  Com.  325. 

To  be  reasonable,  the  rate  on  compressed 
cotton  from  Meridian,  Miss.,  to  New  Orleans, 
a  distance  of  196  miles,  should  not  exceed 
$1.50  per  bale.  New  Orleans  Cotton  Exch. 
V.  Cinncinnati,  N.  O.  S-  T.  P.  R.  Co.,  2  Int. 
Copn.  Rep.  289,  2  Int.  Com.  Com.  375. 

A  rate  of  50  cents  on  wheat  and  56  cents 
on  barley,  per  hundred  pounds,  from  a 
point  in  Washington  to  St.  Paul,  Minn.,  a 
distance  of  1 576  miles,  is  deemed  reasonable, 
where  it  appears  that  the  amount  of  ship- 
ments is  comparatively  small.  Buchanan 
V.  Northern  Pac.  R.  Co.,  3  Int.  Com.  Rep. 
655,  5  Int.  Com.  Com.  7. 

34.  When  not  reasonable.— A  rate 
from  one  locality  lower  than  that  enjoyed 
by  its  neighbor,  when  the  circumstances  are 
the  same, constitutes  a  preference  and  is  un- 
due and  unreasonable,  unless  justified  upon 
some  sound  and  substantial  ground.  In  re 
Tariffs  of  the  Transcontinental  Lines,  2  /;//. 
Com.  Com.  324,  2  Int.  Com.  Rep.  203. 

A  rate  on  a  particular  class  of  goods, 
such  as  cheap,  unfinished  bedroom  sets, 
which  is  unreasonable  in  itself,  is  not  justi- 
fiable on  the  ground  that  the  same  rate  is 
given  a  competitive  class  of  goods,  such  as 
higher  priced,  finished  sets,  which  is  found 
liberal  and  advantageous.  Potter  Mfg.  Co. 
v.  Chicago  &•  G.  T,  R.  Co.,  5  Int.  Com.  Com. 
514. 

Rates  obtained  by  combination,  which 
produce  a  lower  rate  than  the  tariff  calls 
for,  are  unjust,  because  they  enable  an  in- 
telligent shipper  to  obtain  an  advantage 
over  one  who  has  less  information ;  and 
thev  are  illegal  because  they  show  two  rates 
to  the  same  point,  over  the  same  line,  at  the 


INTERSTATE   COMMERCE,  35. 


IS 


same  time.  The  tariff  rates  should  not  ex- 
ceed the  combination  rates  in  any  case. 
Martin  v.  Southern  Pac.  Co.,  i  Int.  Com. 
Com.  I,  2  Int.  Com.  Rep.  i. 

Complainants  manufactured  soap  which 
was  othciaily  classed  in  the  fifth  class  when 
shipped  in  car-load  lots,  and  the  defendant 
( arriers  had  for  a  long  time  carried  the  soap 
as  lifth-ciass,  charging  only  for  the  net 
weit;iit,  but  afterward  charged  for  the  gross 
weight,  which  was  one  sixth  more.  It  ap- 
peared that  the  former  charge  for  the  net 
weight  was  reasonable  and  satisfactory  to 
the  shippers.  Held,  that  the  increase  was 
unreasonable.  Proctor  v.  Cincinnati,  H.  <S- 
D.  R.  Co.,  3  Int.  Com.  Rep.  131,  4  Int.  Com. 
Com.  87. 

85.  Competition  as  affecting  rates. 
— Whether  a  rate  to  a  section  where  there 
is  no  competition  is  just  or  not  cannot  be 
determined  by  comparing  the  rate  with  an- 
other point  where  an  exceptionally  low  rate 
is  made  to  meet  competition.  Business 
Men's  Assoc,  v.  Chicago,  St.  P.,  M.  &•  O.  R. 
Co.,  2  Int.  Com.  Rep.  41,2  Int.  Com.  Com. 
52.— Quoting  La  Crosse  M.  &  J.  Union  v. 
Chicago.  M.  &  St.  P.  R.  Co.,  2  Int.  Com. 
Rep.  9. 

If  a  railroad  company,  in  establishing 
charges  on  the  different  branches  and 
divisions  of  its  road,  so  adjust  tliem  as  to 
divert  trade  to  one  locality  which  would 
naturally  go  to  another,  such  adjustment  is 
unlawful,  and  is  not  excused  on  the  ground 
that  some  of  the  rates  are  to  meet  com- 
petition. Only  such  advantage  can  be 
given  to  places  on  the  main  line  of  the 
road  as  are  reasonable.  Raymond  v.  Chi- 
cago, M.  <S-  St.  P.  R.  Co.,  I  Int.  Com.  Rep. 
627,  I  Int.  Com.  Com.  230. 

In  fixing  relative  rates  upon  strictly  com- 
petitive articles,  the  proper  relation  should 
be  determined  from  the  cost  of  the  service, 
and  not  from  a  purely  commercial  stand- 
point. Squire  v.  Michigan  C.  R.  Co.,  3  Int. 
Com.  Hep.  515,  4  Int.  Com.  Com.  611. 

The  fact  that  one  carrier  has  violated  the 
rules  that  should  govern  in  fixing  relative 
rates  on  competitive  articles  does  not  jus- 
tify a  competing  carrier  in  similar  viola- 
tions. Squire  v.  Michigan  C.  R.  Co.,  3  Int. 
Com.  Rep.  515,  4  Int.  Com.  Com.  6n. 

Where  it  is  shown  that  oranges  may  be 
transported  from  Florida  to  New  York  and 
other  northeastern  cities  by  either  rail  or 
water,  but  that  strawberries  require  quick 
transportation,  and  can  only  be  shipped  by 


rail,  the  fact  of  the  water  competition  may 
be  considered  in  fixing  the  rates  on  oranges, 
but  does  not  authorize  companies  to  take 
advantage  of  the  situation  and  charge  un- 
reasonable rates  on  strawberries.  Perry  v. 
Florida  C.  Sr-  P.  R.  Co.,  3  Int.  Com.  Rep.  740, 
5  Int.  Com.  Com.  97. 

In  determining  the  reasonableness  of 
rates  in  transcontinental  shipments  to  sea- 
ports on  the  Pacific  coast,  and  to  another 
point  near  tlie  coast,  but  not  a  seaport,  the 
fact  that  traffic  to  the  seaports  is  affected 
by  water  competition  must  be  considered. 
Merchants'  Union  v.  Nor/hern  Pac.  R.  Co.,  5 
Int.  Com.  Com.  478,  4  Int.  Com.  Rep.  183. 

The  only  justification  for  a  througii  rate 
less  than  the  intermediate  rate  on  the  same 
article,  is  the  compulsion  of  the  rail  car- 
riers to  accept  the  reduced  rate  or  suffer 
ocean  rivals  to  do  the  service.  Where  the 
pressure  of  tliis  alternative  is  not  felt  there 
is  no  ground  upon  which  the  lower  ter- 
minal charge  can  be  excused.  Merchants' 
Union  v.  Northern  Pac.  R.  Co.,  5  Int.  Com. 
Com.  478,  4  Int.  Com.  Rep.  183. 

Nothing  but  stress  of  unavoidable  com- 
petition can  legalize  the  inequality  resultmg 
from  higher  rates  for  shorter  than  for  longer 
hauls.  No  article  should  be  carried  to  ter- 
minal points  at  commodity  rates  which,  if 
the  class  rates  were  imposed,  would  still 
seek  rail  rather  than  water  transportation. 
Merchants'  Union  v.  Northern  Pac.  R.  Co., 
4  Int.  Com.  Rep.  183,  5  Int.  Com.  Com.  478, 

Where  a  carrier  sets  up  water  competition 
as  justifying  established  rates,  the  carrier 
must  show  by  clear,  affirmative  evidence 
that  the  competition  is  such  as  to  be  a  con- 
trolling factor.  James  v.  Canadian  Pac.  R. 
Co.,  5  Int.  Com.  Com.  612,4  ^"t.  Com.  Rep. 

274- 

The  "drive"  of  shingle  logs  down  rivers 
which  flow  past  the  place  of  cut  in  Maine  u> 
a  seaport  in  Canada  where  shingle  mills  are 
located,  and  from  which  the  product  ni:iy 
go  by  sea  to  market  ports,  affects  shingle 
traffic  from  competing  mills  located  along 
these  rivers  at  a  place  in  Canada  and  a  place 
in  Maine,  but  operates  with  less  force  at  the 
latter  point.  The  rail  rate  from  the  Cana- 
dian mill  to  market  being  fixed  with  es- 
pecial reference  to  the  effect  of  the  log 
drive  to,  and  water  competition  for,  shingle 
traffic  frotii  the  seaport,  the  rate  from  the 
Maine  mill  should  be  made  upon  the  same 
basis.  James  v.  Canadian  Pac.  R.  Co.,  5  Int. 
Com.  Com.  612,  4  Int.  Com.  Rep.  274. 


14 


INTERSTATE   COMMERCE,  36-38. 


36.  Local  nnd  through  rates,  gen- 
erally.* —  It  is  only  required  that  local 
rates  shall  be  reasonable  when  compared 
with  through  rates,  but  not  necessarily 
relatively  equal,  as  there  are  many  influ- 
ences affectmg  local  rates  which  do  not  ap- 
ply to  through  rates;  or  if  they  apply,  in  a 
less  degree.  Lippman  v.  Illinois  C.  A'.  Co.,  2 
Int.  Com.  Com.  584,  2  Int.  Com.  Rep.  414. 

Where  freight  is  to  pass  over  more  than 
one  road,  and  the  shipper  directs  the  agent 
of  the  initial  carrier  as  to  tlie  route  by  which 
it  shall  go.  it  is  the  duty  of  tlie  agent  to 
maiie  proper  notes  on  the  way  bill,  so  as  to 
secure  the  shipment  by  the  designated 
route;  and  if  he  fails  to  do  so,  the  initial 
carrier  must  refund  any  overcharge  caused 
thereby.  Fankcy  v.  Richmond  6^  D.  R.  Co., 
3  ////.  Com.  Rep.  33,  3  Int.  Com.  Com.  658. 

But  where  the  shipper  gives  no  directions 
as  to  the  particular  route  by  which  the 
freight  is  to  be  shipped,  it  is  the  duty  of  the 
freight  agent  to  forward  it  by  the  best  and 
clieapest  route.  Pankey  v.  Richmond  &*  D. 
R.  Co..  3  Int.  Com.  Rep.  33,  3  Int.  Com.  Com. 
658. 

Where  freight  is  shipped  for  a  destination 
that  requires  it  to  pass  over  more  than  one 
road,  if  no  joint  rates  have  been  established 
over  the  several  roads,  the  freight  charge 
should  equal  the  established  local  rates  over 
the  several  roads.  Lehmann  v.  Texas  &•  P. 
R.  Co.,  3  Int.  Com.  Rep.  706,  5  Int.  Com. 
Com.  44. 

if  a  passenger  ticket  is  applied  for  to  a 
point  beyond  the  initial  carrier's  line,  and 
no  joint  rate  has  been  established,  it  is  com- 
petent to  name  a  through  rate  made  up  of 
the  local  rate  on  eacli  road  ;  or  if  a  through 
rate  is  established  for  a  pan  of  the  distance, 
then  the  ticket  should  be  sold  for  the 
amount  of  such  through  rate  plus  the  local 
rates  for  the  remainder  of  the  journey.  In 
re  Passenger  Tariffs,  2  Int.  Com.  Rep,  445, 2 
////.  Com.  Com.  649. 

Minneapolis  and  Duluth,  both  in  the 
state  of  Minnesota,  competed  in  the  ship- 
ment of  grain,  and  both  enjoyed  certain 
advantages,  from  their  location,  over  cer- 
tain lines  of  shipment.  The  distance  be- 
tween the  two  cities  varies  from  153  miles 
to  237  miles,  according  to  distances  over 
diflferent  roads.  Held,  that  one  should  not 
have  a  reduction  on  the  local  rate  connect- 

*  Local  traffic  rates  must  be  reasonable,  lee 
note,  12  L.  R.  A.  436. 


ing  the  two,  so  as  to  overcome  the  natural 
advantages  of  the  other.  Chamber  of  Com- 
merce V.  Great  Northern  R,  Co.,  5  Int.  Com. 
Com.  571. 

37.  Duty  of  connecting  lines  to 
give  through  rates.— Through  carriage 
implies  througii  rates,  which  must  be  rea- 
sonable. Brady  v.  Pennsylvania  R.  Co.,  2 
Int.  Com.  Rep.  78,  2  Int.  Com.  Com.  131. 

When  railroad  companies  make  a  through 
line  and  offer  it  to  the  public  for  continuous 
carriage,  and  bill  and  haul  freight  over  the 
through  line,  they  cannot  rid  themselves  of 
responsibility  for  unjust  charges  by  break- 
ing the  haul  in  two  and  calling  themselves 
earners  on  the  separate  ends  cf  their  line. 
Brady  v.  Pennsylvania  R.  Co.,  2  /;//.  Com, 
Rep.  78,  2  Int.  Com.  Com.  131. 

Where  a  company  owns  a  part  of  a 
through  line,  and  owns  a  controlling  inter- 
est in  the  capital  stock  of  the  company  by 
which  the  other  part  is  operated,  the  former 
cannot  free  itself  from  the  responsibility  ol 
excessive  through  rates  by  setting  up  the 
separate  corporate  existence  of  tlie  other 
company.  Brady  v.  Pennsylvania  R.  Co.,  2 
Int.  Com.  Rep.  78,  2  Int.  Com.  Com.  131. 

The  apportionment  of  rates  between  com- 
panies owning  different  parts  of  a  throuj;h 
line  does  not  determine  what  the  charge  to 
the  public  should  be,  but  it  may  be  signifi- 
cant in  determining  the  question  of  reason- 
ableness of  the  rates  for  the  whole  distance. 
Brady  v.  Pennsylvania  R.  Co.,  2  Int.  Com. 
Rep.  78,  2  Int.  Com.  Com.  131. 

The  danger  of  fire  from  transporting  oii 
through  a  city  like  Pittsburg,  and  ne.'.r 
large  manufacturing  plants  and  other  build- 
ings, is  not  so  important  as  to  be  coiisidereJ 
in  fixing  the  rate  thereon.  Brady  v.  Penn- 
sylvania R.  Co.,  2  Int.  Com.  Rep.  78,  2  Int. 
Com.  Com.  131. 

38.  When  higher  rate  on  perish- 
ablcfreightsjustiflable.'*'— In  fixing  the 
rate  on  shipments  of  fruit,  the  fact  that  the 
service  is  special  throughout,  with  quicker 
time,  special  time-tables  providing  for  close 
connections,  the  cost  of  specially  fitting  up 
the  cars,  and  returning  the  baskets  free, 
must  all  be  considered.  Boston  F.  &«•  P. 
Exch.  v.  New  York  6-  A^.  E.  R.  Co..  3  Int. 
Com.  Rep.  493,  4  Int.  Com.  Com.  664. 

Where  perishable  freight,  such  as  fruit,  is 
shipped,  which  requires  quick  transporta- 

*  Difference  in  rates,  when  justified  under  the 
act,  see  note,  2  L.  R.  A.  444. 


INTERSTATE   COMMERCE,  39-42. 


15 


IS 


tion,  prompt  delivery,  cars  fitted  up  espe- 
cially for  the  freight,  and  other  expenses,  a 
higher  rate  may  be  cliarged,  and  will  be 
deemed  reasonable  and  just.  Delaware 
State  Grange  v.  yew  York,  P.  6-  N.  Ji.  Co., 

3  Int.  Com.  Rep.  554,  4  Int.  Com.  Com.  588; 
rehear ittg  denied  in  5  Int.  Com.  Com.  161. 

But  such  higher  rate  should  bear  a  rea- 
sonable relation  to  the  value  of  the  service 
to  tlie  traffic.  The  business  should  not  be 
rendered  valueless  to  the  shipper  on  account 
of  the  charges,  if  they  may  be  reasonably 
reduced.  Delaware  State  Grange  v.  New 
York,  P.  <S-  N.  A'.  Co.,  3  Int.  Cow.  Pep.  554, 

4  /;//.  Com.  Com.  588 ;  re/tearing  denied  in  5 
/;//.  Com.  Com.  161. 

The  provision  of  the  statute  that  rates 
shall  be  "reasonable  and  just"  implies  that 
both  the  business  of  shipping  and  carrying 
may  be  successfully  carried  on,  if  practica- 
ble. The  spirit  of  the  law  requires  that  in 
the  handling  of  such  freight  both  the  trans- 
portation interest  and  the  interest  of  pro- 
ducers and  shippers  must  be  considered. 
Delaware  State  Grange  v.  New  York,  P.  &• 
N.  A'.  Co.,  3  Int.  Com,  Rep.  554,  4  Int.  Com. 
Com.  588 ;  rehearing  denied  in  5  Int.  Com, 
Cvn.  161. 

:t9.  Kates  on  food  products. — Rates 
I'of  transportation  of  staple  articles,  such  as 
food  products,  cannot  always  be  so  limited 
that  the  shipper  may,  in  all  cases,  receive 
actual  cost  of  production.  Rates  and  Charges 
on  Food  Products,  3  Int.  Com.  Rep.  93,  4  Int. 
Com.  Com.  48. 

But  the  charges  on  such  freights  should 
be  adjusted  with  reference  to  the  cost  of 
production,  and  to  the  value  of  the  service 
to  the  producer  and  shipper,  but  not  so  low 
as  to  impose  a  burden  on  other  traffic. 
Rates  and  Charges  on  Food  Products,  3  Int. 
Com.  Rep.  93,  4  Int.  Com.  Com.  48. 

In  the  carriage  of  great  staples,  which 
supply  an  enormous  business,  and  which  in 
market  value  and  actual  cost  of  transporta- 
tion are  among  the  cheapest  articles  of 
commerce,  rates  yielding  only  moderate 
profit  to  the  carrier  are  both  necessary  and 
justifiable.  Rates  and  Charges  on  Food  Prod- 
ucts, 3  Int.  Com.  Rep.  91,  4  Int.  Com.  Com. 
48. 

In  fixing  the  rates  on  food  products,  it  is 
proper  to  consider  the  operating  expenses 
of  the  road,  interest  on  bonded  debt,  divi- 
dends on  the  stock,  and  other  necessary  ex- 
penses ;  but  a  claim  that  a  rate  cannot  be  so 
low  that  it  will  not  yield  revenue  sufficient 


to  pay  all  these  cannot  always  be  taken  as 
the  standard,  without  reference  to  whether 
the  bonded  debt,  or  other  obligations  of  the 
carrier,  are  rea  I .  Rates  and  Charges  on  Food 
Products,  3  Int.  Com.  Rep.  93,  4  Int.  Com. 
Com.  48. 

40.  Bates  that  are  unreasonably 
low. — The  provision  of  the  statute  that  all 
rates  "  shall  be  reasonable  and  just "  does 
not  authorize  the  commission  to.  compel  a 
railroad  company  to  increase  its  rates,  which 
are  supposed  to  be  so  low  as  to  be  ruinous. 
In  re  Chicago,  St.  P.  &•  A'.  C.  R.  Co.,  2  Int. 
Com.  Rep.  137,  2  Int.  Com.  Com.  231. 

The  above  provision  of  the  statute  was 
inserted  for  the  protection  of  the  general 
public,  and  not  for  the  protection  of  car- 
riers against  the  action  of  their  own  oflicers, 
or  of  rivals.  In  re  Chicago,  St.  P.  &r*  K.  C. 
R.  Co.,  2  Int.  Com.  Rep.  137,  2  Int.  Com. 
Com.  231. 

41.  Equal  niilca{j|:e  rates. — The  com- 
mission has  no  power  to  require  the  adop- 
tion of  rates  on  an  equal  and  uniform  mile- 
age basis.  La  Crosse  M.  <S«»  /.  Union  v. 
Chicago,  M.&'St.  P.  R.  Co.,  2  Int.  Cow.  Rep. 
9,  I  Int.  Com.  Com.  629. 

And  rates  not  established  on  a  mileage 
basis  are  not  necessarily  illegal.  La  Crosse 
AI.  &>/.  Union  v.  Chicago,  M.  &-  St.  P.  R. 
Co.,  2  Int.  Com.  Rep.  9,  i  Int.  Com.  Com. 
629. — Quoted  in  Business  Men's  Assoc,  v. 
Chicago,  St.  P.,  M.  &  O.  R.  Co.,  2  Int.  Com. 
Rep.  41,  2  Int.  Com.  Com.  52. 

A  departure  from  equal  mileage  rates  on 
different  branches  or  divisions  of  a  road  is 
not  conclusive  that  the  rates  are  unlawful ; 
but  places  the  burden  on  the  company  to 
show  them  to  be  reasonable.  James  v. 
Canadian  Pac.  R.  Co.,  5  Int.  Com.  Com.  612, 
4  Int.  Com.  Rep.  274. 

42.  Bates  as  alt'ected  by  distance, 
and  other  causes.*— Charges  on  long 
through  lines  cannot  offer  a  just  basis  for 
comparison  with  local  rates  for  relatively 
short  distances.  Crews  v.  Richmond  &*  D. 
R.  Co.,  I  Int.  Com.  Rep.  703,  i  Int.  Com. 
Cow.  401. 

It  is  a  familiar  rule  in  the  transportation 
of  freight  by  railroads  that,  while  the  aggre- 
gate charge  is  continually  increasing  the 
further  the  freight  is  carried,  yet  the  rate 

*  Distance  as  an  element  in  adjusting  railway 
rates,  see  note,  21  Am.  &  Eno.  R.  Cas.  61. 

Freight  rates  as  affected  by  distance  and  com- 
peting lines,  see  34  Am.  &  Eng.  R.  Cas.  590, 
afistr. 


■I«1I 


10 


INTERSTATE  COMMERCE,  43,  44. 


per  ton  per  mile  is  constantly  growing  less, 
unless  there  be  exceptional  conditions  mod- 
ifying tlie  rule.  Business  Men's  Assoc,  v. 
C/tic,ii;o,  St.  P.,  M.  (S-  0.  R.  Co.,  2  Int.  Com. 
Hep.  41,  2  Int.  Com.  Com.  52.— QUOTING 
Farrar  v.  East  Tenn..  V.  «S  G.  K.  Co..  1  Int. 
Com.  Com.  487,  i  Int.  Com.  Rep.  764. 

But  the  rule  that  the  rate  per  ton  per 
mile  must  be  less  for  the  greater  distance  is 
only  one  of  ihe  tests  by  which  the  rates  can 
be  determined,  as  to  whether  they  are  rea- 
sonable or  not.  Business  Men's  Assoc,  v. 
Chicago,  St.  P.,  M.  &^  O.R.Co.,  2  Int.  Com. 
Rep.  41,  2  Int.  Com.  Com.  52. 

In  determining  whether  a  certain  rate  is 
reasonable,  not  only  the  rights  of  the  ship- 
per, but  all  the  surrounding  circumstances 
and  conditions  must  betaken  into  consider- 
ation. Business  Men's  Assoc,  v.  Chicago,  St. 
P.,  M.  &>  0.  R.  Co.,  2  /;//.  Com,  Rep.  ii,\,  2 
Int.  Com.  Com.  52. 

But  in  determining  whether  a  rate  is  rea- 
sonable or  not,  it  is  no  criterion  to  compare 
it  with  the  rates  of  other  roads  existing 
under  difTerentand  dissimilar  circum&iances 
and  conditions.  Business  Men's  Assoc,  v. 
Chicago,  St.  P.,  M.  &>  O.  R.  Co.,  2  Int.  Com. 
Rep.  41,  2  Int.  Com.  Com.  52. 

The  principle  that  the  ratio  of  freight 
rates  decreases  with  the  increase  of  dis- 
tance is  true  only  when  the  rates  are  based 
upon  distance  and  cost  alone,  and  are  not 
affected  by  other  modifying  conditions. 
The  extent  of  traffic  carried,  and  the  char- 
acter of  the  country  traversed,  are  to  be 
considered.  Also  the  fact  that  the  road  is 
intersected  by  a  shorter  line,  and  is  subjected 
to  water  competition.  Lincoln  Board  of 
Trade  v.  Burlington  &^  M.  R.  R.  Co.,  2  Int. 
Com.  Rep.  95,  2  Int.  Com.  Com.  147. 

The  rule  that  cost  of  carriage  is  in  inverse 
ratio  to  distance,  and  that  therefore  the 
charge  per  ton  per  mile  should  diminish 
with  distance,  is  not  a  rule  required  by 
statute,  and  is  subject  to  qualifications  and 
exceptions.  Manufacturers  &' /.  Union  v. 
Minneapolis  <S^  St,  L.  R.  Co.,  3  Int.  Com. 
Rep.  1 1 5,  4  Int.  Com.  Com.  79. 

The  above  rule  is  usually  applied  in  cases 
of  continuous  carriage  over  long  through 
routes,  but  even  then  special  conditions, 
such  as  volume  of  business,  character  of 
route,  and  necessary  revenue  from  the  busi- 
ness done,  may  materially  qualify  it.  Man- 
ufacturers' (S»  /.  Union  v.  Minneapolis  &* 
St.  I..  R.  Co.,  3  Int.  Com,  Rep.  115,  4  /»/ 
Com.  Com.  79. 


43.  ItateH  when  carrier  dues  not 
own  cars.— A  carrier  may  obtain  cars 
from  the  shipper,  but  in  doing  so  the  rate 
charged  should  be  the  regular  rate  after  de- 
ducting the  established  rate  for  tlie  rent  of 
the  cars.  Scofield  v.  Lake  Shore  &*  AI.  S, 
R.  Co.,  2  Int.  Com.  Rep.  67,  2  Int.  Com.  Com. 

<jO. 

Where  the  carrier  uses  cars  that  belong 
to  the  shipper  or  to  third  parlies,  such  ar- 
rangement must  l)e  made  as  not  to  discrim- 
inate between  shippers  ;  and  any  secret  ar- 
rangement, such  as  paying  tlie  shipper  an 
unreasonable  rent  for  the  cars,  is  unlawful. 
Ricev.  Western  N.  Y.  &^  P.  R.  Co.,  3  Int. 
Com.  Rep.  162,  4 /«/.  Com.  Com.  131. 

44.  Classification  of  freights.— The 
act  recognizes  the  right  to  classify  freiglits 
as  a  valuable  convenience  both  to  shippers 
and  carriers;  and  such  classification  is 
therefore  lawful.  Thurber  v.  New  York  C. 
&>  H.  R.  R.  Co.,  2  Int.  Com.  Rep.  742,  3  Int. 
Com.  Com.  473. 

But  in  classifying  freights  both  the  inter- 
ests of  the  carrier  and  shipper  must  be 
considered,  so  that  the  rate  may  be  rela- 
tively just  and  equal.  Thurber  v.  New 
York  C.  6-  H.  R.  R.  Co.,  2  Int.  Com.  Rep. 
742,  3  Int.  Com.  Com.  473. 

The  proper  classification  of  an  article  is 
determined  by  reference  to  similar  articles 
of  the  same  general  character  and  quality. 
Myers  v.  Pennsylvania  Co.,  2  Int.  Com.  Rep, 
403,  2  Int.  Com.  Com.  573. 

It  is  often  necessary  to  consider  the  clas- 
sification and  rates  upon  other  articles  of 
similar  value,  bulk,  and  expense  of  hand- 
ling; and  in  making  such  comparison  it  is 
not  necessary  that  the  articles  be  competi- 
tive. Harvard  Co.  v.  Pennsylvania  Co.,  3 
Int.  Com.  Rep.  257,  4  Int.  Com.  Com.  212. 

So  where  the  question  of  the  proper  clas- 
sification of  "  Hostetters  Bitters,"  a  fluid 
preparation,  put  up  in  bottles  and  sold  as 
medicine,  is  in  question,  it  should  be  deter- 
mined by  reference  to  the  classification  of 
such  articles  as  cider,  coffee,  condensed 
drugs,  medicines,  ink,  liquors,  liquids,  etc. 
Myers  v.  Pennsylvania  Co.,  2  Int.  Com.  Rep. 
403,  2  Int.  Com.  Com.  573. 

A  former  rate  on  such  "  bitters  "  existing 
before  the  commission  was  created,  and 
shown  to  be  a  special  preferred  rate,  is  no 
test  of  the  reasonableness  of  a  rate  fixed  by 
the  commission.  Myers  v.  Pennsylvania 
Co.,  2  Int.  Com.  Rep.  403,  2  Int.  Com.  Com. 
573- 


tion  of' 


certain 
in  a  car 
new  prac 

Co..  2  I  Hi 

241. 

Neithe 
railroad 
uniform 
the  weigl 
for  refusi 
the  cours 
seem  to 
V.  Chicag 

599.  3  /«/ 
40.  R 

carryinf 

freight  is 

should   n 

6  D. 


INTERSTATE    COMMERCE,  45-48. 


ir 


The  difference  in  the  rate  of  transporta- 
tion of  compressed  and  uncompressed  cot- 
ton by  rail  carriers  should  be  the  actual  and 
necessary  cost  of  compressing,  where  the 
compressing  is  done  by  the  carrier  before 
shipping.  Neiu  Orleans  Cotton  Exch.  v.  Illi- 
nois C.  K.  Co.,  2  Int.  Com.  Rep.  TJJ,  3 
Int.  Com.  Com.  !;34. 

45.  Car-loi5(l  rates.— Lower  rates  on 
car-load  lots  than  on  quantities  less  than 
car-loads  are  not  unlawful.  Tliurber  v.  New 
York  C.  &^  If.  A',  a:  Co.,  2  Int.  Com.  A'ep. 
742,  3  Int.  Com.  Com.  473. 

But  if  the  difference  be  so  great  as  to  de- 
stroy competition  between  larsj;e  and  small 
dealers  they  will  be  deemed  unlawful,  espe- 
cially upon  articles  that  are  necessary,  and 
in  general  use,  and  furnish  a  large  volume 
of  business.  Tliurber  v.  Wiv  York  C.  &* 
H.  A'.  A\  Co.,  2  /;//.  Com.  A'ep.  742,  3  Int. 
Com.  Com.  473. 

Other  things  being  equal,  a  higher  charge 
in  the  aggregate  should  be  made  per  car- 
load of  large  tonnage  than  for  one  of  less 
tonnage;  but  the  rate  per  hundred  pounds 
sliould  be  less  on  the  heavy  tonnage  than 
on  the  other.  Murphy  v.  Wabash  R.  Co.,  3 
Int.  Com,  Rep.  725,  5  Int.  Com,  Com.  122. 

Where  carriers  have  been  in  the  habit  of 
charging  a  fixed  amount  for  a  car-load  of 
live  stock,  irrespective  of  the  weight,  it  is  not 
unlawful  to  make  a  change  by  prescribing  a 
car-load  rate  at  a  minimum  weight,  and 
tlien  to  charge  so  much  a  hundred  for  any- 
thing above  the  minimum  weight.  Leonard 
V.  Chicago  €t*  A.  R.  Co.,  2  Int.  Com.  Rep. 
599.  3  Int.  Com.  Com.  241. 

The  fact  that  shippers  experience  some 
difficulty  in  weighing  live  stock  so  as  to  as- 
certain the  exact  weight  of  the  stock  placed 
in  a  car  is  not  a  reason  for  abolishing  the 
new  practice.  Leonard  v.  Chicago  &*  A.  R. 
Co. ,  2  Int.  Com.  Rep.  599,  3  Int.  Com.  Com, 
241. 

Neither  will  the  fact  that  certain  state 
railroad  commissioners  have  permitted  a 
uniform  rate  per  car,  without  reference  to 
the  weight  of  the  stock  shipped,  be  reason 
for  refusing  to  adopt  the  new  plan,  where 
the  course  of  such  commissioners  does  not 
seem  to  be  most  just  and  politic.  Leonard 
v.  Chicago  &^  A.  R.  Co.,  2  Int.  Com.  Rep. 
599,  3  Int.  Com.  Com.  241. 

40.  Rates   a8  affected   by  cost  of 

carrying. — The  cost  of  service  in  carrying 

freight  is  entitled  to  fair  consideration,  but 

should   not  be  controlling.     The  value  of 

6  D.  R.  D.— 2. 


the  service  to  the  jiroperty  carried  should 
be  recngnizcd  also.  Thurber  v.  AVti'  \'o) k 
C.  Hr'  H.  R.  R.  Co.,  2  Int.  Com.  Rep.  742, 
3  Int.  Com.  Com.  473. 

In  determining  what  is  a  just  and  reason- 
able rate  on  a  short  local  line,  doing  but  a 
small  business  when  the  cost  of  service  is 
great,  owing  to  sleep  grades,  such  circum- 
stances should  have  much  weight.  So  held, 
where  a  road  existing  under  such  conditions 
was  charged  with  unjust  rates  in  shipping 
oil,  as  compared  with  the  cost  of  piping  it 
to  the  same  point.  Rice  v.  Western  N.  Y, 
&'  P.  R.  Co.,  2  Int.  Com.  Rep.  298,  2  Int. 
Com.  Com.  3S9. 

47.  Kafes  for  iminigraiits— Suita- 
ble cars. — It  is  lawful  for  carriers  to  make 
a  class  rate  for  immigrants,  and  to  decline 
to  give  the  same  rate  to  others  for  whom 
different  accommodations  are  provided. 
Savery  v.  AV;.-  York  C.  6-  H.  R.  R.  Co.,  2 
Int.  Lorn.  Rep.  210,  2  Int.  Com.  Com.  338. 

But  a  company  carrying  immigrants  must 
provide  fit  cars  for  the  purpose ;  and  the 
commission  will  make  a  personal  inspec- 
tion, where  deemed  necessary,  to  ascertain 
their  fitness.  Savery  v.  Neiv  York  C.  (S«»  H. 
R.  R.  Co.,  2  Int.  Com.  Rep.  210,  2  ////.  Com. 
Com.  338. 

48.  Itates  on  antbracite  coal.— ■ 
Where  a  company  carries  coal,  and  also 
owns  the  capital  stock  of  a  company  which 
owns  coal  lands,  mines,  buys,  sells,  and  ships 
coal  over  the  railroad,  the  only  power  that  tiie 
commission  has  is  to  insist  that  the  rates  be 
reasonable.  Coxe  v.  Leh^h  Valley  R.  Co., 
3  Int.  Com.  Rep.  460,4  Int.  Com.  Com.  535. 

For  more  than  two  years  before  the  pas- 
sage of  the  act  a  company  had  carried  an- 
thracite coal ;  but,  after  the  passage  of  the 
act,  advanced  the  rate  and  placed  it  higher 
than  the  rate  on  iron  ore,  pig  iron,  or  other 
low  grade  freights,  and  higher  than  on  gen- 
eral freights,  the  cost  of  carrying  which 
was  much  greater.  //<■/</,  that  the  advanced 
rate  was  unreasonable.  Coxev.  Lehigh  Val- 
ley R.  Co. ,  3  Int.  Com.  Rep.  460,  4  Int.  Com. 
Com.  535. 

The  statute  confers  upon  the  commission 
the  power  of  determining  what  are  reason- 
able and  what  are  unreasonable  rates,  and 
the  power  of  enforcing  the  provisions  of 
the  statute  requiring  rates  to  be  reasonable. 
Coxe  V.  Lehigh  Valley  R.  Co.,  3  Int.  Com. 
Rep.  460,  4  Int.  Com.  Com.  535. 

Where  a  company  has  maintained  for  a 
considerable  time  a  scale  of  rates  upon  an- 


n 


18 


INTERSTATE   COMMERCE,  411-5^. 


^! 


tliracite  coal,  which  is  .-.iiown  lo  be  suffi- 
cient, in  connection  witli  o'.her  revenues,  to 
meet  all  theobllgations  of  the  road,  including 
dividends  on  stock,  a  new  scale  of  charges 
largely  in  excess  of  the  former  will  be 
deemed  unlawful.  Coxe  v.  Lehigh  Valley 
K.  Co.,  3  Int.  Com.  AV/>.  460,  4  /'""•  ^''"«- 
Coin.  535. 

4«.  (Jnuip  rates.  —  The  practice  of 
making  a  group  rate  on  the  daily  shipments 
of  milk  from  all  points  within  200  miles  of 
New  York  city  does  not  constitute  unjust 
discrimination  in  favor  of  the  more  distant 
shippers  as  against  those  who  reside  nearer 
tlie  city.  Ho7vell  v.  New  York,  L.  E.  ^ 
W.  R.  Co.,  2  Int.  Com.  Rep.  162,  2  Int.  Com. 
Com.  272. 

The  habit  of  making  group  rates  is  not  in 
itself  unlawful,  but  becomes  so  only  where 
illegal  .esults  flow  from  it,  to  the  injury  of 
some  one.  Howell  v.  New  York,  L.  E.  &• 
IV.  R.  Co.,  2  /;//.  Com.  Rep.  162,2  Int.  Com. 
Com.  272.  Imperial  Coal  Co.  v,  Pittsburgh 
&>  L.  E.  R.  Co.,  2  Int.  Com.  Rep.  436,  2  Int. 
Com.  Com.  618. 

Group  rates  on  coal  for  a  large  district 
extending  across  two  or  three  states  may 
be  made,  where  the  commercial  necessities 
are  substantially  the  same  for  all,  and  the 
distance  fron>  each  part  of  the  group  by 
same  route  of  shipinent  is  a  fair  equivalent 
of  the  distance  from  other  points.  Rend  v. 
Chicago  (S-  A'.  JV.  R.  Co.,  2  Int.  Com.  Rep. 
313.  2  Int.  Com.  Com.  540. 

Where  such  rates  have  been  fixed,  and 
are  not  unreasonable  in  themselves,  a  clear 
right  for  a  reduction  must  be  shown,  where 
its  effect  would  be  to  cause  confusion  of 
rates  over  a  large  section.  Rend  v.  Chicago 
&•  N.  W.  R.  Co.,  2  Int.  Com.  Rep.  313,  2 
/;//.  Com.  Com.  540. 

50.  Unjust  rates  not  justified  by 
(MHitracts  with  individuals.— The  fact 
that  parties  have  made  investments  and 
<iucied  into  business  on  the  faith  of  assur- 
iinces  from  carriers  that  they  should  have  a 
special  rate  is  no  ground  for  continuing 
such  rate,  where  it  is  shown  to  be  unjust, 
thou<;li  injury  may  result  to  the  parties  who 
iiave  been  thus  favored.  Potter  Mfg.  Co.  v, 
Chicago  6-  G.  T.  R.  Co.,  5  Int.  Com.  Com. 
514.  Hurlburt  v.  Lake  Shore  &>  M.  S.  R. 
Co..  2  /;//.  Com.  Rep.  81,  2  /;//.  Com.  Com. 
122 

51.  Kates  to  manufacturers.  —  A 
carrier  has  no  right  to  arbitrarily  give  what 
is  called  a  "Manufacturer's  rate."     In  re 


Louisville  »&-  A'.  R.  Co.,  5  Int.  Com.  Com.  466. 

Manufacturing  industries  should  not  be 
deprived,  through  a  carrier's  adjustment  of 
relative  nites,  of  advantages  resulting  from 
their  favorable  location  in  respect  of  cost  of 
raw  material  supplied  from  a  common 
source,  or  of  distance  to  the  common  mar- 
ket for  the  finished  product.  James  v.  trt- 
natiian  Pac.  R.  Co.,  5  Int.  Com.  Com.  612. 

Where  no  discrimination  is  alleged  be- 
tween points  of  production  tributary  to  the 
same  market,  or  on  account  of  dispropor- 
tionate rates  on  different  kinds  of  tratRc 
similar  in  character  and  volume,  it  must 
affirmatively  appear  that  charges  assailed 
as  unreasonable  are  so  and  ought  to  be  re- 
duced. Lincoln  Creamery  v.  Union  Pac.  R. 
Co.,  3  Int.  Com,  Rep.  794,  5  Int.  Com.  Com. 
156. 

Where  the  rate  in  itself  is  just,  the  advan- 
tage derived  by  one  shipper  from  combining 
the  rate  with  enterprise  and  an  outlay  of 
money,  is  legitimate,  of  which  the  shipper 
should  not  be  deprived.  Potter  Mfg.  Co.  v. 
Chicago  (So  G.  T.  R.  Co.,  5  Int.  Com.  Com.  514, 
4  Int.  Com.  Rep.  223. 

In  determining  the  difference  in  the  rates 
upon  unfinished  and  finished  cheap  bed- 
room sets,  the  rate  on  the  unfinished  sets 
between  Lansing,  Mich.,  and  Oakland,  Gal., 
should  not  exceed  85  per  cent,  of  the  rate 
adopted  for  the  finished  sets.  Potter  Mfg. 
Co.  V.  Chicago  &»  G.  T.  R.  Co.,  5  Int.  Com. 
Com.  514,  4  Int.  Com.  Rep.  223. 

52.  Necessary  parties.  —  Where  a 
through  rate  is  in  controversy,  all  of  the 
carriers  responsible  for  it  should  be  made 
defendants.  Allen  v.  Louisville,  N.  A.  iS-^ 
C.  R.  Co.,  I  Int.  Com.  Rep.  621,  i  Int.  Com. 
Com.  199.  Michigan  Cottgress  Water  Co. 
V.  Chicago  6<«  G.  T.  R.  Co.,  2  Int.  Com.  Rep. 
428,  2  Int.  Cotn.  Com.  594. 

The  reasonableness  of  rates  cannot  be 
fairly  determined  in  a  proceeding  to  whicli 
some  of  the  parties  responsible  for  such 
rates  are  not  parties.  New  Orleans  Cotton 
Exch.  V.  Cincinnati,  N.  O.  &•  T.  P.  R.  Co., 
2  Int.  Com.  Rep.  289,  2  Int.  Com.  Com.  375. 

The  commission  will  not  undertake  to 
decide  the  question  of  a  rate  that  will  affect 
two  carriers,  where  only  one  of  them  is  a 
party.  Kentucky  6-  /.  Bridge  Co.  v.  Louis- 
ville 6f*  N.  R.  Co.,  2  Int.  Cotn.  Rep.  102;  2 
Int.  Com.  Com.  162. 

A  change  of  rates  on  connecting  lines 
should  not  be  made  unless  based  upon  ade- 
quate grounds,  where  the  owners  of  such 


INTERSTATli   COMMEkCH,  5»-66. 


19 


lines  are  not  parties.  A'tiev.  IWstirn  N. 
Y.  &•  P.  A'.  Co.,  2  Int.  Com.  Rep.  298,  2  Int. 
Com.  Com.  389. 

Where  it  is  cliarged  that  a  local  rate  is 
unreasonable,  but  it  appears  that  the  local 
rate  is  but  a  part  of  a  through  rate,  the  com- 
plaint should  be  directed  against  the  aggre- 
gate through  rate,  and  all  of  the  carriers 
should  be  made  parties.  Chamber  0/  Com- 
merce V.  Great  Northern  A\  Co.,  5  Int.  Com. 
Com.  571. 

5.   Unjust  Discrimination.* 
a.  Wiiat  Is. 

53.  In  fe-enernl.— Rates  established  by 
a  common  carrier  under  a  desire  to  keep  on 
its  line  a  material  for  which  the  road  itself 
has  use,  sucfi  as  ties,  or  to  keep  the  price 
thereof  low  for  its  own  advantage,  is  unlaw- 
ful. A'eynoldsw.  Western N.  Y.&^P.K.Co., 
I  Int.  Com.  Rep.  685,  i  Int.  Com.  Com.  393. 

Kvery  party  who  produces  such  a  mate- 
rial is  entitled  to  sell  it  wlien  he  wishes,  in 
the  best  available  market,  and  the  carrier 
has  no  right  to  prevent  his  doing  so  by  un- 
reasonable rates.  Reynolds  v.  Western  N. 
v.  (5-  P.  R.  Co.,  I  Int.  Com.  Rep.  685,  i  Int. 
Com.  Com.  393. 

Where  it  is  charged  that  a  carrier  has 
discriminated  in  favor  of  a  certain  shipper, 
it  is  sutlicient  to  show  the  rates  actually 
charged  him,  and  how  far  they  differ  from 
the  public  schedule  ;  and  a  large  number  of 
sliipmcnts  running  back  many  years  is  im- 
material. Rice  V.  Cincinnati,  W.  &*  B.  R. 
Co.,  2  Int.  Com.  Rep.  584,  3  Int.  Com.  Com. 
186. 

When  rates  on  their  face  are  relatively 
unequal  and  disproportionate,  the  burden 
is  on  the  carrier  to  justify  them.  McMor- 
ran  v.  Grand  Trunk  R.  Co.,  2  Int.  Com. 
I\cp.  604,  3  Int.  Com.  Com.  252. 

Charges  are  required  to  be  relatively  rea- 
sonable as  well  as  reasonable  in  themselves, 
to  prevent  unjust  discrimination  between 
localities.  Manufacturers  &*  J.  Union  v. 
Minneapolis  <S»  St.  L.  R.  Co.,  3  Int.  Com. 
Rep.  1 1 5,  4  Int.  Com.  Com.  79. 

A  railroad  cannot  discriminate  against  a 
town  which  it  does  not  reach  and  in  whose 
carrying  trade  it  does  not  participate.  Eau 
Claire  Board  of  Trade  v.  Chicago,  Af.  &*  St. 
P.  R.  Co.,  5  Int.  Com.  Com.  264,  4  Int.  Com. 
Rep.  65. 


*  Unjust  discrimination  under  Interstate  Com- 
merce Act,  §  2,  see  37  Am.  &  Eng.  R.  Cas.  625, 
obslr. 


A4.  Ah  b<;tweeii  carrierH. — The  fact 
that  one  company  owns  an  interest  in  the 
stock  of  another  is  no  excuse  for  discrim- 
inating i'l  favor  of  such  road  as  against 
other  roadi  A'tw  ]'ork  &-  A'.  R.  to.  v. 
New  Vor'i  ^'-  N.  E.  R.  Co..  3  Int.  Com.  Rep. 

542,4  /«i.  <  om.  Com.  702.— DiSTINOUISHFD 

IN  Littii  Kock   &  M.  R.  Co.  v.  East  Tenn., 
V.  &  G.  R.  Co.,  47  Fed.  Rep.  771. 

A  company,  which  is  the  owner  of  a  road 
between  two  points  and  extending  far 
beyond  one  of  such  points,  may  prefer  itself 
over  a  competing  company  owning  a  line 
terminating  at  such  points;  and  such  com- 
pany may  refuse  to  through  route  witii  such 
competing  company,  to  points  on  its  own 
road  not  reached  by  the  competitor's  road,  or 
to  recognize  tickets  issued  by  the  cf)mpei- 
jng  road  or  others  over  its  road  to  such 
points,  and  other  roads  are  not  at  fault  in 
yielding  to  its  refusal  to  recognize  such  tick- 
ets. Such  conduct  does  not  constitute  "dis^ 
crimination"  against  the  competing  road 
under  the  act.  It  is  not  the  case  ot  a  road 
preferring  unjustly  and  unreasonably  one  of 
two  other  equally  adequate  carriers  from  a 
given  point  to  a  given  point,  but  the  case  of  a 
competitor  or  rival  so  conducting  its  busi- 
ness and  using  its  powers  of  ownershiji  as 
to  divert  travel  from  its  rival  to  itself. 
Little  Rock  <S-  M.  R.  Co.  v.  East  Tenn.,  I'. 
&«•  G.  R.  Co.,  49  Am.  (Sx  Eng.  R.  Cas.  23,  47 
Fed.  Rep.  771. — Approving  Express  Cases, 
117  U.  S.  29,  6  Sup.  Ct.  Rep.  542.  DisriN- 
GUI.SHING  Atchison.  T.  &.  5.  F.  R.  Co.  v. 
Denver  &  N.  O.  R.  Co.,  no  U.  S.  667,4 
Sup.  Ct.  Rep.  185;  Kentucky  &  1.  Bridge 
Co.  V.  Louisville  &  N.  R.  Co.,  37  Fed.  Rep. 
567;  Oregon  S.  L.  &  U.  N.  R.  Co.  v.  North- 
em  Pac.  R.  Co.,  3  Int.  Com.  Rep,  205 ;  New 
York  &  N.  R.  Co.  v.  New  York  &  N.  E.  R. 
Co., 4  Int.  Com.  Rep.  1 16.  Reviewing  Little 
Rock  &  M.  R.  Co.  V.  East  Tenn..  V.  &  G. 
R.  Co.,  3  Int.  Com.  Com.  10. 

A  company  may  prefer  a  connecting 
road  with  through  facilities  to  one  with 
only  local  facilities — a  road  that  goes  all  the 
way  to  a  certain  point,  to  one  going  only 
part  of  the  way;  and  the  Interstate  Com- 
merce Act  does  not  forbid  such  a  preference. 
Little  Rock  &>  M.  R.  Co.  v.  East  Tenn.,  V. 
6-  G.  R.  Co.,  49  Am.  &*  Eng.  R.  Cas.  23,  47 
.  Fed.  Rep.  771. 

55.  Boycott  by  railroad  employes 
against  connecting  road. — Rule  12  of 
an  association  of  locomotive  engineers, 
styled   the  "  Brotherhood    of    Locomotive 


!■, 

t    I 


i'^i 


80 


INTliKtJlATi:   COMMiiKCK,  rt«-5t>. 


[engineers,"  which  provides  "that  hereafter, 
when  an  issue  has  been  sustained  by  the 
>,'ian(l  chief,  and  carried  into  effect  by  the 
{{ruthurhood  of  Locomotive  Engineers,  it 
siiall  be  recoil. ized  as  a  violation  of  oiiliga- 
tions  if  a  mcnil/er  of  the  MroUieriujod  of  Lo- 
cuMiotivi!  Knuincerswhomaybi-'cmployedon 
a  railroad  run  in  connection  with.or  a<ljacent 
to,  said  road,  toiiandle  tiie  property  belorifj- 
jii>{  tosaid  railroad  or  system  tiiat  may  benettt 
siiid  company  witli  wliicli  the  Hmtlierhood 
of  Locotnotive  Kn^jineers  are  at  issue,  until 
ilie  fjrievanccs  or  issue,  or  dilTcrences  of 
any  nature  or  kind  iiave  f>een  amicably  set- 
tled," is  plainly  a  rule  or  aRreement  in 
restraint  of  trade  or  commerce,  and  a  viola- 
tion of  section  i  of  the  Act  of  Congress  of 
July  2,  1890.  IValer/wiisew.  Comer,  53  Am, 
il~  Eiif;.  R.  Ois.  329,  55  Fed.  Rep.  149. 

Construing  several  clauses  of  the  Inter- 
state Commerce  Law  recited  in  the  opinion 
with  section  5440  of  the  Revised  Statutes,  it 
follows  that  a  combination  of  persons,  with- 
out regard  to  their  occupation,  which  will 
have  the  effect  to  defeat  the  provisions  of  the 
Interstate  Commerce  Law  inhibiting  dis- 
criminations in  the  transportation  of  freight 
and  passengers,  and  further  to  restrain  the 
trade  or  commerce  of  the  country,  will  be 
obnoxious  to  the  penalties  therein  pre- 
scribed. Waterhouse  v.  Comer,  53  Am.  &» 
Eitg.  R.  Cas.  329,  55  Feti.  Rep.  149. 

5((.  Duty  to  fiiriiiHli  Hnt'e  and  8uit- 
nbl«  ears.*— It  is  the  duty  of  companies  to 
furnish  their  roads  with  suitable  cars  for  the 
traffic  they  undertake  to  handle,  and  to 
furnish  them  alike  to  all.  Rice  v.  Western 
N.  V.  6-  /'.  A'.  Co.,  3  Int.  Com.  Rep.  162,  4 
Int.  Com.  Com.  131. 

Plaintiff  applied  to  a  depot  agent  for  a 
certain  tank  car,  and  the  agent  answered 
him  so  as  to  imply  that  the  car  was  in  good 
condition,  and  fit  to  run  out  on  the  track. 
The  car  had  just  returned  from  a  long 
journey,  and  it  was  not  the  duty  of  the  sta- 
tion agent  to  examine  it;  and  after  it  was 
loaded,  the  car  inspector  found  it  unfit 
again  to  be  sent  out.  Held,  that  what  the 
agent  may  have  said  was  not  binding  on 
the  company,  and  it  might  refuse  to  send  it 
out  again.  Michigan  Congress  Water  Co. 
V.  Chicago  <S-  G.  T.  R.  Co.,  2  Int.  Com.  Rep. 
428,  2  Int.  Com.  Com.  594. 


*  Discrimination  in  furnishing  cars.  Regulai- 
patrons  not  entitled  to  preference,  see  11  Am  & 
Eng.  R.  Cas.  646,  abtlr. 


And  in  such  case,  where  it  appears  th  A 
such  car  belonged  to  the  shipper,  it  was  his 
duty  to  make  it  safe  before  insisting  on 
sending  it  out  again.  Michigan  Congress 
Watir  Co.  V.  Chicago  ^  G.  T.  R.  Co.,  2  ////. 
Com.  Rc/>.  428,  2  Int.  Com.  Com.  594. 

57.  l{«'(|iiii'iiiK  NliipiMT  to  clean 
cars.— Where  cars  are  run  on  a  side  ira(  k 
to  be  loaded  at  a  mill,  a  rule  reqiiiiiii^  tin' 
shippers  to  clean  the  cars  is  uiireas(iiiabli . 
Hczc/  Milling  Co.  v,  ^V.  Louis,  A.  <1~  7'.  II. 
R.  Co.,  3  Int.  Com.  Rip.  701,  5  ////.  Com. 
Com.  57. 

58.  Ill  favor  of  iiiiiiiip;raiit.s.— A 
special  rate  for  carrying  a  certain  class  of 
persons  to  certain  points  on  a  railroad, 
which  is  less  than  one  half  «the  amount 
charged  to  the  public  generally,  is  unjust 
discrimination.  F.lvcy  \.  Illinois  C.  R.  Co., 
2  Int.  Com.  Rep.  804,  3  Int.  Com.  Com.  '652. 

And  «uch  discrimination  cannot  be  justi- 
fied on  the  ground  that  the  special  rate  is 
offered  to  immigrants  to  induce  them  to  go 
to  a  section  which  is  sparsely  settled,  in 
order  to  build  up  business  along  the  line  of 
the  road.  IClvejf  v.  Illinois  C.  R.  Co.,  2  Int. 
Com.  Rep.  804,  3  ////.  Com.  Com.  652. 

51).  Ill  the  collection  and  delivery 
of  freights.— The  fact  thai  a  company  has 
for  some  time  paid  the  cost  of  hauling  plain- 
tiff's coal  from  a  wharf  to  the  railroad  sta- 
tion, for  the  purpose  of  encouraging  the 
business,  creates  no  obligations  to  continue 
the  same.  Providence  Coal  Co.  v.  Praviifence 
&"  W.  R.  Co.,  I  Int.  Com.  Rep.  363.  i  /;//. 
Com.  Com.  107. 

Free  cartage  for  the  collection  and  de- 
livery of  freight  furnished  by  a  carrier 
amounts  to  a  rebate  from  the  schedule 
rates,  and  is  unlawful.  Stone  v.  Detroit,  G. 
H.  6-  M.  R.  Co.,  3  Int.  Com.  Rep.  60,  3  /;//. 
Com.  Com,  613. 

If  free  cartage  at  a  station  has  the  effect 
of  reducing  the  cost  of  carriage  below  the 
cost  of  carriage  to  a  point  nearer  the  place 
of  shipment,  it  is  unlawful,  as  a  violation  of 
the  long  and  short  haul  clause  of  the  statute. 
Stone  V.  Detroit,  G.  H.  <3-  M.  R.  Co.,  3  Int. 
Com.  Rep,  60,  3  Int.  Com.  Com.  J13, 

It  is  no  justification  for  a  carrier  furnish- 
ing free  cartage  at  one  station  and  not  at 
another  to  show  that  the  business  had  been 
carried  on  in  that  way  for  many  years  be- 
fore the  statute  was  passed.  Stone  v.  De- 
troit. G.  H.  &-  M.  R.  Co.,  3  Int.  Com.  Rep. 
&>.  z  I 'It.  Com.  Com.  613. 

Where  a  carrier  furnishes  cars  and  take» 


INTERSTATE   COMMERCE,  00-03. 


21 


pt.kUJtilf's  flour  from  his  mill,  he  cannot 
coraplaiii  tliut  the  company  bears  a  part  of 
llie  cost  of  cartiny  the  Hour  of  other  persons 
to  tlie  station.  Hezel  Milling  Co.  v.  Sf. 
Louis,  A.  &•  T.  //.  A'.  Co.,  3  Int.  Com.  Rep. 
701,  3  Int.  Com,  Com.  57. 

For  the  carrier  to  pay  the  larger  expense 
(if  the  transportation  of  a  remote  shipper's 
Murcliandise  to  tlie  station,  and  not  to  pay 
the  less  cx|>LMisc  of  such  transportation  of 
the  nearer  shipper's  merchandise,  would  be 
the  equivalent  of  a  rebate  -to  the  former, 
ilij  railroad  service  proper  being  the  same 
to  each  and  at  the  same  rate ;  nor  would  it 
be  treating  all  patrons  with  statutable  equal- 
ity to  iiear  a  part  of  the  cartage  expense 
for  one  sliip|)er  a?)d  not  bear  a  part  of  it  for 
another.  Htzil  Milling  Co.  v.  St.  Louis,  A. 
&^  T.  //.  R.  Co.,  3  Jnt.  Com.  Rep.  701,  5 
/;//.  Com.  Com,  57. 

00.  Ill  rcl'iiHiiit;  to  dvlivur  IV«iKlitM. 
—  PlaintifT  is  a  coal  dealer  with  yards  near 
the  junction  of  two  roads.  He  received  a 
car-load  of  coal  over  defendant's  road  and 
asked  tiiat  it  be  switched  on  the  other  road 
for  delivery  at  his  yards,  which  defendant 
refused  to  do,  unless  he  would  promise  in 
advance  to  pay  any  demurrage  charge  that 
might  be  made  on  the  car.  PlaintifT's 
financial  ability  was  not  questioned.  Held, 
that  the  refusal  was  unreasonable,  though 
plainiifl  had  previously  refused  to  pay  such 
cliarges.  Macloon  v.  Chicago  &•  N.  IV.  R. 
Co..  3  Int.  Com.  Rep.  711,  $  Int.  Com.  Com. 
84. 

01.  llcbatcs  and  diMCOiiutH.*— The 
act  will  not  render  a  bill  of  lading  to  ship- 
pers invalid  because  of  the  allowance  of  a 
rebate,  and  will  therefore  not  defeat  the 
ritjlu  of  insurance  companies,  who  have 
paid  a  loss,  to  be  subrogated  to  the  rights 
of  the  insured  against  the  company.  Mer- 
chants'  C.  P.  »S»  S.  Co.  v.  Insurance  Co.  of 
X.  A.,  151  U.  S.  368,  14  Sup.  Ct.  Rep.  367. 
—Distinguishing  Interstate  Commerce 
Commission  v.  Baltimore  &  O.  R.  Co.,  145 
U.  S.  263. 

It  is  a  violation  of  the  act  for  an  inter- 
national road  to  carry  coal  from  the  United 
Stiites  to  certain  points  in  Canada  at  the 
published  tariff  rate,  but  to  allow  a  rebi.te 
of  a  certain  sum  per  ton  in  favor  of  certain 


*  Ajjreement  for  payment  of  rebates  illegal. 
When  r.tilwiiy  offirials  not  criminally  liable  for 
aRii'cmcnt  for  p.iyinent  of  rebates,  see  .45  Am. 
&  Mm;,  R.  Cas.  245,  abstr. 


consignees.  In  re  Grand  Trunk  R.  Co.,  2 
Int.  Com,  Rep.  4<X),  3  ////.  Com.  Com.  89. 

An  arrangement  by  which  shippers  of 
live  stock  are  al'owed  to  furnish  improved 
stock  cars  fur  their  own  exclusive  use,  and 
to  receive  an  extraordinary  mileage  from 
the  carrier  for  their  use,  amounts  to  giving 
a  rebate,  and  is  unjust  discrimination  as 
against  competitive  shippers.  Shamlierg  v. 
Delimuue,  I..  «S-  H'.  R,  Co.,  yint.  Com.  Rep. 
502,  4  Int.  Com.  Com.  630. 

The  act  is  not  violated  by  an  agreement 
by  a  railroad  with  a  stock  yard  c(  uipaiiy  to 
pa;'  a  customer  an  annual  sum,  although  a 
large  portion  of  the  stock  received  at  its 
yards  is  shipped  from,  and  reshipped  to, 
other  states,  where  such  payment  lias  110 
relation  to  the  railway  charges,  which  are 
uniform,  and  no  rebate  is  made  thereon. 
Willoughby  v.  Chicago  J.  R.  &•  U.  S.  Co. ,  50 
A'.  J.  I'lq.  656,  25  .///.  Rep.  277. 

A  railway  company  advertised  to  give  a 
discount  of  ten  per  cent,  from  schedule 
prices  to  all  persons  who  niiglit  receive 
consignments  of  30,000  tons  or  more  of 
coal  in  any  one  year.  The  company  claimed 
that  this  regulation  was  reasonable,  and  it 
was  offered  to  secure  "  quick  dispatch  in  un- 
loading its  cars."  Held,  that  this  amounted 
to  unjust  discrimination,  and  that  "  quirk 
dispatch "  was  not  material.  Providence 
Coal  Co.  V.  Providence  &*  W.  R.  Co.,  1  Int, 
Com.  Rep.  363,  1  ////.  Com,  Com.  107. 

02.  Municipal  HubNvriptioii  torond 
docs  not  Justify  diHcriniinatioii.— The 
fact  that  one  place  has  given  municipal  aid 
toward  the  building  of  a  railroad  is  no  rea- 
son for  discriminating  in  its  favor.  All 
points,  without  reference  to  such  things,  are 
entitled  to  equal  rates.  Lincoln  Board  of 
Trade  v.  liurlitigton  «S-  M.  R.  R.  Co.,  2  Int, 
Com.  Rep.  95,  2  Int,  Com.  Com.  147. 

b.   EfTect  of  Competition.* 

03.  Generally.— The  act  was  not  de- 
signed to  prevent  competition  between 
different  roads,  or  to  interfere  with  the 
customary  arrangements  made  by  railway 
companies  for  reduced  fares  in  considera- 
tion of  increased  mileage,  where  such  re- 
duction does  not  operate  as  an  unjust  dis- 
crimination against  other  persons  traveling 
over  the  same  road.  Interstate  Commerce 
Commission  v.  Baltimore  &^  O.  R.  Co.,  145 

*  Discrimination  in  rates.  Undue  preference. 
Effect  of  cumpctition.  see  note,  51  Am.  &  Eng. 
R.  Cas.  37. 


'?if.r| 


•  o  1 


23 


INTERSTATE   COMMERCE,  «4,  «5. 


U.  S.  263,  12  Sup.  a.  Rep.  844;  affirming  43 
Fed.  Rep.  37. 

There  may  be  cases  in  which  a  carrier 
legitimately  engaged  in  serving  some  ter- 
ritory is  compelled  by  some  new  and  ag- 
gressive competition  to  reduce  reasonable 
rates  to  retain  business  on  its  line,  and 
where  corresponding  reductions  at  points 
not  affected,  or  less  affected,  by  such  com- 
petition, might  be  unreasonable.  Manu- 
facturers' &*  J.  Union  v.  Minneapolis  &-  St. 
L.  R.  Co.,  3  Int.  Com.  Rep.  115,  4  ^'t(-  ^om. 
Com.  79. 

But  when  a  carrier  voluntarily  enters  a 
field  of  competition  where,  by  reason  of  a 
disadvantageous  route,  or  the  rigor  of  com- 
petitive conditions,  remunerative  rates  can- 
not be  charged,  and  its  service  to  a  portion 
of  its  patrons  is  unprofitable,  it  is  under 
legal  obligation  to  make  its  service  impar- 
tial to  all  who  sustain  similar  relations  to 
the  traffic,  and  for  whom  the  service  itself 
is  not  substantially  dissimilar.  Manufac- 
turers' &*  J.  Union  v.  Minneapolis  &•  St.  L. 
R.  Co.,  3  Int.  Com.  Rep.  115,  4  Int.  Com. 
Com.  79. 

A  carrier  that  secures  a  consolidation  of 
competing  lines  that  have  formerly  carried 
the  same  article  to  the  same  market  has  no 
right  to  deprive  the  public  of  fair  competi- 
tion, nor  to  give  oppressive  discrimination 
»o  further  its  own  interest.  Rice  v.  IVestern 
^v.  r.  &•  P.  R.  Co.,  3  Int.  Com.  Rep.  162,  4 
int.  Com.  Com.  131. 

One  transportation  line  cannot  be  said  to 
meet  the  competition  of  another  transporta- 
tion nne  for  the  car.ying  trade  of  any  par- 
ticular locality,  unless  the  latter  line  could 
and  would  perform  the  service  alone  if  the 
former  did  not  undertake  it.  Chattanooga 
Board  of  Traaev.  East  Tenn.,  V.  &>  G.  R. 
Co.,  5  Int.  Com.  Com.  546,  4  Int.  Com.  Rep. 
213 

04.  Water  eoinpetitioii. — A  trans- 
portation company  operating  connecting 
railroad  and  steamship  lines  is  not  required 
by  the  act  to  allow  the  steamboats  of  a 
competing  line  tc  land  at  its  wharf,  since 
the  steamboat  and  railroad  lines  belonging 
to  the  said  company  cannot  be  construed  as 
connecting  lines  under  the  said  act.  Ilwuco 
R.  6-  A^.  Co.  v.  Oregon  S.  L.  &•  U.  N.  R.  Co., 
56  Am.  (5-  Zing.  R.  Cas.  i.  57  Fed.  Rep.  673. 

The  fact  that  traffic  from  New  Orleans  to 
San  Francisco  is  subject  to  water  competi- 
tion will  not  justify  all  rail  carriers  in 
ch/iKing  from  three  to  four  times  as  much 


on  traffic  secured  from  New  Orleans  or 
vicinity  as  it  does  on  the  like  traffic  which 
comes  to  New  Orleans  from  foreign  ports, 
and  is  thence  carried  by  rail ;  and  this  is  so 
though  it  appeared  that  the  foreign  traffic 
cannot  be  secured  on  other  rates.  Inter- 
state Commerce  Commission  v.  Texas  &^  P. 
R.  Co.,  57  Fed.  Rep.  948  ;  affirming  32  F'ed. 
Rep.  187. 

The  fact  that  railroads  are  subject  to 
water  competition  will  not  justify  them  in 
violating  the  long  and  short  haul  clause  of 
the  statute  by  charging  less  for  a  long  dis- 
tance than  for  a  shorter  one.  Harwell  v. 
Cohtmbus  &*  IV.  R.  Co.,  i  Int.  Com.  Rep.  631, 

1  ////.  Com.  Com.  236. 

T'le  circumstances  and  conditions  in  the 
carriage  of  flour  to  New  York  are  substan- 
tially different  at  Boston  and  Read  field,  an 
interior  town  about  eight  miles  from  Bo_- 
ton,  on  the  line  of  the  all  rail  carriers, 
where  no  competition  exists  between  the 
all  rail  carriers  and  the  water  lines,  and  jus- 
tifies the  all  rail  carriers  in  meeting  the 
water  rate  at  Boston  by  a  joint  through 
rate  which  is  less  from  New  York  to  Bos- 
ton than  the  combined  local  rates  to  Read- 
field.  A'ing  V.  New  York,  N.  H.  &-  H.  R. 
Co.,  3  Int.  Com.  Rep.  272,  4  Int.  Com.  Com. 
251. 

Plaintiffs  were  engaged  in  milling  in  In- 
dianapolis, Ind.,  but  found  the  principal 
market  for  their  mill  products  in  the  east, 
and  complained  of  unjust  discrimination  on 
the  part  of  carriers  in  giving  a  lower  rate  on 
grain  to  the  east  than  on  grain  products 
which  give  millers  in  the  east  advantage 
over  them.  The  carriers  attempted  to  jus- 
tify it  on  account  of  water  competition  by 
way  of  the  lakes  from  Chicago  and  other 
points.  The  evidence  showed  that  Indian- 
apolis is  from  154  to  327  nules  from  the  dif- 
ferent lake  shipping  points,  and  that  most 
of  the  grain  tiiat  is  shipped  by  the  lakes 
comes  from  points  west  of  plaintiff's  city. 
Held,  that  such  water  competition,  under 
the  circumstances,  will  not  justify  such  dis- 
crimination.    Bates  V.  Pennsylvania  R.  Co., 

2  Int.   Com.    Rep.   715,  3  Int.   Com.    Com. 

435- 

05.  Watc  competition  as  aft'ectiiiff 
rates  on  oil.— Competition  between  all 
rail  and  all  water  lines  between  New  York 
and  San  Francisco  and  other  points  on  the 
Pacific  coast  must  be  considered  in  fixing 
the  rate  for  railroad  transportation  of  oil 
and  its  products.     Rice  v.  Atchison,  T,  Sf 


INTERSTATE   COMMERCE,  OO,  07. 


23 


5.  F.  R.  Co.,  3  Int.  Com.  Rep.  263,  4  Int. 
Com.  Com.  228. 

And  the  competition  that  arises  from 
shipping  oil  from  the  Pennsylvania  oil  fields 
by  rail  or  by  pipe  line  to  New  York,  and 
thence  to  points  on  the  Pacific  coast  by 
water,  must  be  considered  in  fixing  rates 
on  all  rail  transportation.  Rice  v.  Atchison, 
T.  &^  S.  F.  R.  Co.,  3  Int.  Com.  Rep.  263,  4 
/;//.  Com.  Com.  228. 

c.  Local  and  Through  Rates. 

00.  Generally. — Where  a  carrier  re- 
ceives goods  for  a  point  beyond  its  line  and 
merely  names  a  rate  in  connection  with  its 
own,  it  is  not  thceby  made  responsible  for 
the  rate  on  the  connecting  road.  Crews  v. 
Richmond  &*  D.  R.  Co.,  i  Int.  Com.  Rep. 
703,  1  Int.  Com.  Com.  401. 

Where  a  carrier  refuses  a  through  rate  to 
all  points  alike  it  cannot  be  cliargcd  as  un- 
just discrimination  because  the  refusal  oper- 
ates in  favor  of  one  place  and  against  an- 
other. Crews  V.  Richmond  &*  D.  R.  Co.,  i 
/;//.  Com.  Rep.  703,  1  Int.  Com.  Com.  401. 

When  making  a  decision  upon  a  question 
purely  of  fact  in  respect  to  traffic  in  one 
section  of  the  country,  the  commission  is 
not  to  be  understood  as  laying  down  a  o'-in- 
ciple  whicii  must  be  applied  in  other  sec- 
tions of  the  country,  where  tb  i  peculiarities 
of  the  traffic  may  be  so  different  as  to  re- 
quire altogether  different  rulings.  In  re 
Relative  T.  <5>»  £.  Rates  on  Oil,  2  Int.  Com. 
Rip.  245,  2  Int.  Com.  Com.  ^'S;. 

Where  a  complaint  h^^  been  made  as  to 
local  and  through  rates,  and  the  commis- 
sion has  heard  it  after  full  proofs  and  inves- 
tigation, and  no  party  to  the  proceetiing  has 
applied  for  a  rehearing,  an  application  for  a 
rehearing  will  not  be  granted  to  persons 
who  were  rot  parties.  In  re  Toledo  Prod- 
uce Exch.,  2  Int.  Com.  Rep.  412,  2  Int.  Com. 
Com.  588. 

The  practice  which  prevails  in  the  terri- 
tory covered  by  the  Southern  Railway  & 
Steamship  Association  of  making  rates  by 
raiding  locals  to  the  established  rate  to  what 
arc  termed  "  basing  points "  is  unlawful. 
Hamilton  v.  Chattanooga,  R.  &>  C.  R.  Co.,  3 
////.  Com.  Rep.  482,  4  hit.  Com.  Com.  686. 

The  inherent  defect  in  making  these  rates 
is  that  the  railroad  companies  treat  traffic 
intended  to  be  continuous  between  points 
as  consisting  of  two  kinds  of  service,  inde- 
pendent of  each  other ;  the  one  to  the  bas- 
insj;  point  on  a  through  rate,  and  the  other 


from  the  basing  point  to  an  intermediate 
point  on  a  local  rate.  Hamilton  v.  Chatta- 
nooga, R.  &•  C.  R.  Co.,  3  Int.  Com,  Rep.  482, 
4  Int.  Com.  Com.  686. 

Divisions  of  a  through  rate  need  not  be 
considered  on  the  question  of  the  way  in 
which  the  through  rate  is  affected  by  an 
arbitrary  differential.  Toiedo  Produce  Exch. 
V.  Lake  Shore  &*  M.  S.  R.  Co.,  3  /;//.  Com. 
Rep.  830,  5  ////.  Com.  Com.  166. 

Where  all  the  distances  brought  into 
comparison  are  considerable  and  the  differ- 
ence between  them  relatively  small,  there 
should  be  substantial  similarity  in  the  re- 
spective rates  unless  other  modifying  cir- 
cumstances justify  disparity.  Eau  Claire 
Board  of  Trade  v.  Chicago,  AI.  <S^  .S7.  P.  R. 
Co.,  5  Int.  Com.  Com.  264,  4  Int.  Com.  Rep. 
65. 

The  doctrine  that  transportation  charges 
should  be  in  proportion  to  the  distances 
between  points,  where  those  distances  are 
greatly  dissimilar,  has  never  been  advocated 
by  railroads  nor  recommended  by  the  com- 
mission. Eaii  Claire  Board  of  Trade  v. 
Chicago,  M.  &'  St.  P.  R.  Co.,  5  Int.  Com.  Com. 
264,  4  Int.  Com.  Rep.  65. 

To  fix  rates  in  inverse  proportion  to  the 
natural  advantages  of  competing  towns 
with  the  view  of  equalization,  what  is 
termed  "  commercial  conditions  "  is  neither 
just  nor  lawful.  Eau  Claire  Board  of  Trade 
v.  Chicago,  M.  &*  St.  P.  R.  Co.,  5  Int.  Com. 
Com.  264,  4  ////.  Com.  Rep.  65. 

07.  Tlirou{;li  rateH,  how  made  and 
construed.* — A  rate  is  none  the  less  a 
througli  late  when  freight  is  shipped  upon 
a  througli  bill  of  lading  from  the  point  of 
origin  to  destination,  accompanied  by  a 
way  bill  showing  the  route  over  which  it  is 
to  pass,  with  the  percentages  of  all  the 
other  lines  set  forth  on  the  way  bill,  be- 
cause the  initial  carrier  charges  its  loc.;l 
rate  as  part  of  the  total  rate,  and  the  re- 
maining lines  charge  an  agreed  rate  made  by 
percentages.  Milwaukee  Chamber  of  Com- 
merce V.  Flint  &•  P.  Af.  R.  Co.,  2  /;//.  Com. 
Rep.  393,  2  Int.  Com.  Com.  553. 

Wliere  a  rate  has  every  essential  constit- 
uent of  a  through  rate  it  is  immaterial 
whether  it  be  quoted  as  a  through  rate  or 
not.     Milwaukee  Chamber  of  Commerce  v. 

*  Through  traffic  arrangements  under  Inter- 
state Commerce  .Act,  see  note,  12  L.  R.  A.  437. 

Unjust  discrimination  ;  through  and  local 
rates;  services  for  tlifferent  parties,  see  40  Am. 
&  Eno.  R.  Cas.  41,  abstr. 


B  y 


t^,M 


94 


INTERSTATE   COMMERCE,  68,  09. 


/■7/;//  &-  P.  M.  A\  Co.,  2  /«/.  Coi/i.  l^ep.  393. 
2  ////.  Com.  Com.  553. 

Through  rates,  like  any  otlier  agreements 
that  parties  competent  to  contract  may 
make,  admit  of  very  great  variety  in  the 
forms  they  assume ;  and  such  rates,  when 
reasonable  and  fairly  adjusted  in  their  rela- 
tions to  local  business,  are  greatly  favored 
in  the  law  because  they  furnish  cheapened 
rates  and  greater  facilities  to  the  public, 
while  at  the  same  time  they  give  increased 
employment  and  earnings  to  a  larger  num- 
ber of  carriers.  Mihvaukee  Chamber  of 
Commerce  v.  Flint  &•  P.  M.  A'.  Co.,  2  /ni. 
Com.  Rep.  393,  2  ////.  Com.  Com.  553. 

The  difference  between  proportions  of 
through  rates  along  the  same  lines  should 
be  fairly  reasonable  in  amount  and  properly 
regarded  in  their  application,  and  not  suth 
as  to  injure  or  suppress  business  in  one  lo- 
cality in  order  that  it  may  be  stimulated 
aiul  idiilt  up  in  another.  Milwaukee  Cham- 
ber of  Commerce  v.  Flint  &•  P.  M.  R.  Co.,  2 
////.  Com.  Rep.  393,  2  /;//.  Com.  Com.  553. 

Where  a  rate  is  in  itself  a  through  rate, 
and  made  up  of  percentages  to  an  intermedi- 
ate point  on  a  long  haul,  the  circumstances 
and  conditions  of  transportation  must  be 
rarely  exceptional  indeed  to  be  of  such  con- 
trolling force  as  to  warrant  any  considerable 
excess  of  such  rate  in  amount  over  a  per- 
centage of  a  through  rate  for  an  equal  dis- 
tance, along  the  same  line,  by  way  of  the 
same  point  to  a  more  distant  point.  Mil- 
waukee Chamber  of  Commerce  v.  Flint  &*  P. 
M.  R.  Co.,  2  Int.  Com.  Rep.  393,  2  Int.  Com. 
Com.  553. 

A  through  rate  does  not  unjustly  dis- 
criminate against  an  intermediate  point 
because  less  proportionally  than  the  rate 
from  such  point  to  the  common  destina- 
tion. Milwaukee  Chamber  of  Commerce  v. 
Flint  &'  P.  .1/.  A'.  Co.,  2  Int.  Com.  Rep.  393, 
2  Int.  Com.  Com.  5,53. 

A  railroad  company  is  under  obligation 
to  give  reasonab.v  rates  to  its  local  business. 
If  it  does  that  it  is  not  illegal  for  it  to  ac- 
cept business  fromother  carriers  on  through 
rates  which,  when  divided  between  them, 
will  give  to  any  one  of  them  less  for  its 
division  than  its  own  local  rates.  Lippman 
V.  Illinois  C.  R.  Co.,  2  Int.  Com.  Rep.  414,  2 
Int.  Com.  Com.  584. 

Rut  the  above  rule  is  subject  to  the  con- 
di'ion  that  the  through  rate  is  not  in  itself 
ill<'!,'al,  either  because  of  being  less  than 
some  one  of  the  locals  or  being   unjustly 


discriminating  against  individuals  or  locali- 
ties ;  or  so  low  as  to  burden  other  business 
with  some  part  of  the  cost  of  the  business 
on  which  it  is  imposed.  Lippman  v.  Illinois 
C.  R.  Co.,  2  Int.  Com.  Rep.  414,  2  Int.  Com. 
Com.  584. 

The  act  favors  through  rates,  and  the 
rate  should  be  adjusted  with  reference  to 
the  through  distance  and  not  the  distance 
over  the  separate  lines.  Coxe  v.  Lehigh 
Valley  R.  Co.,  3  Int.  Com.  Rep.  460,  4  Int. 
Com.  Com.  535. 

08.  Asaffeoted  by  distance.— A  rail- 
road company  is  under  special  obligation  to 
give  reasonable  rates  for  its  local  business ; 
but  there  are  many  influences  which  may 
aflect  through  rates  while  not  bearing  upon 
local  rates  at  all,  or,  if  at  all.  in  less  degree. 
Lippman  v.  Illinois  C.  R.  Co.,  2  Int.  Com. 
Rep.  414,  2  Int.  Com.  Com.  584. 

Much  weight  should  be  given  to  distance 
in  establishing  rates,  but  it  is  not  an  un- 
conditional right  to  have  them  so  fixed, 
from  which  a  departure  may  not  be  justified 
by  other  conditions.  The  public  benefits, 
the  greater  volume  of  business  warranting 
lower  rates,  and  competition,  furnish  rea- 
sons which  sometimes  outweigh  the  mere 
consideration  of  distance.  Imperial  Coal 
Co.v.  Piltsburffh  &^  L.  E.  R.  Co.,  2  Int.  Com. 
Rep.  436,  2  /;//.  Com.  Com.  6i8.  AtcMorran 
V.  Grand  Trunk  R.  Co.,  2  /;//.  Com.  Rep, 
604,  3  Int.  Com.  Com.  252. 

To  fix  a  rate  for  a  thousand  miles  at 
twice  the  sum  prescribed  for  half  the  dis- 
tance, under  all  circumstances,  would  be  too 
arbitrary.  Eau  Claire  Hoard  of  Trade  v. 
Chicago,  M.  &■'  St.  P.  R.  Co.,  5  Int.  Com. 
Com.  264,  4  /;//.  Com.  Rep.  65. 

The  claim  that  an  estimated  portion  of 
the  through  rate  must  not  be  less  according 
to  the  distance  than  the  local  rate  from  an 
intermediate  point  to  another  point  named 
in  the  line  covered  by  the  through  rate  is 
not  just,  nor  in  harmony  with  previous  find- 
ingr  of  the  commission.  Poughkeepsie  Iron 
Co.  V.  New  York  C.  >3-  H.  R.  R.  Co.,  3  Int. 
Com.  Rep.  248,  4  Int.  Com.  Com.  195. 

0».  Duty  of  «ii«  carrier  to  pay 
cliarges  to  next  precedinf;  carrier.— 
Through  rates  are  the  subject  of  agree- 
ment, and  depend  upon  agreement  alone 
for  their  existence  ;  but  one  of  the  features 
of  such  rates  is  usually  that  each  carrier 
receiving  the  freight  pays  the  charges  on  it 
to  the  carrier  delivering  it.  In  re  Clark,  2 
Int.  Com.  Rep.  797,  3  Int.  Com.  Com.  649. 


INTERSTATE    COMMERCE,  70-72. 


25 


But  connecting  carriers  are  not  obliged  to 
(liiy  antecedent  charges  of  connecting  lines 
when  no  agreement  for  a  through  rate  exists. 
///  re  Clark,  2  Int.  Com.  Rep.  797, 3  Int.  Coin. 
Com.  649. 

70.  ItateH  from  western  points  to 
New  York  and  Boston.— Whether  the 
joint  through  rates  from  Chicago  and  other 
western  points  to  Boston  are  dispropor- 
tionately higher  than  the  joint  through 
rates  to  New  York  must  be  determined  by 
reference  to  circumstances  and  conditions, 
such  as  cost  of  servicf ,  volume  of  business, 
competition  by  rail  or  water,  terminal  facil- 
ities, storage  capacity,  etc.  Boston  Cham- 
ber of  Commerce  v.  Lake  Shore  Sf  M.  S.  R. 
Co.,  I  Int.  Com.  Rep.  754,  i  Int.  Com.  Com. 

436- 

Complaint  was  made  of  discrimination 
in  rates  from  Chicago  and  other  western 
points  to  Boston,  caused  by  adding  to  the 
New  York  rates  what  was  termed  a  "  dif- 
ferential" of  from  five  to  ten  cents,  accord- 
ing to  the  class  of  goods.  Held,  that  such 
differential  was  improper,  and  in  its  stead  a 
certain  percentage  should  be  substituted. 
Toledo  Produce  Exch.  v.  Lake  Shore  Sf  M. 
S.  R.  Co.,  3  Int.  Com.  Rep.  830,  5  Int.  Com. 
Com.  166. 

Several  railroads  reaching  Boston  and 
having  western  connections  petitioned  for 
the  privilege  of  delivering  western  grain  at 
Boston  at  the  same  rate  that  it  is  delivered  at 
New  York,  when  intended  for  export,  the 
distance  to  Boston  being  somewhat  greater ; 
or  tiiat  they  be  allowed  to  give  a  rebate, 
which  would  make  the  actual  rate  the  same. 
Tlie  commission  refused  to  make  any  order 
in  the  matter,  but  allowed  the  complainants 
to  withdraw  their  petitions.  In  re  Export 
Trade  of  Boston,  \  Int.  Com.  Rep.  25,  i  Int. 
Ciiiii.  Coin.  24. 

7  I .  Uates  on  branch  and  parallel 
liiu's.— Where  several  railways  combine 
to  form  a  through  line,  they  may  maintain 
tlie  same  rate  at  an  intermediate  and  a  ter- 
minal point,  and  a  higher  rate  may  be  main- 
tained to  a  branch  point  off  the  direct 
tlirough  line  without  being  guilty  of  unjust 
discrimination.  Lehmann  v.  Texas  &*  P. 
R.  Co.,  3  Int.  Com.  Rep.  706,  5  Int.  Com.  Com. 
44. 

The  fact  that  one  company  controls  par- 
allel lines  affords  no  warrant  for  giving 
superior  advantages  to  the  patrons  of  one 
line  and  den\'ing  similar  advantages  to 
those  of  the  other  line.     It  may  not  be  essen- 


tial that  the  rates  on  the  two  lines  should 
be  identical.  Some  difference  on  account 
of  distance  and  increased  operating  expense 
and  the  conditions  affecting  the  trailic  may 
be  permissible.  The  rates  on  the  two  lines 
should  be  relatively  reasonable  in  view  of 
their  relations  to  each  other  and  their  effect 
upon  the  public.  Boards  of  Trade  Union 
v.  Chicago,  M.  <S-  St.  P.  R.  Co.,  i  Int.  Com. 
Rep.  608,  I  /;//.  Com.  Com.  215. 

A  short  road  altogether  iti  one  state,  but 
used  and  operated  by  interstate  roads  for 
the  purpose  of  forming  a  connection,  is  sub- 
ject to  regulation,  and  cannot  be  used  for 
the  purpose  of  discriminating  between  dif- 
ferent shippers  of  coal  on  the  line.  Heck  v. 
East  Tenn.,  V.  &•  G.  R.  Co.,  i  Int.  Com.  Rep. 
775,  I  Int.  Com.  Com.  495. 

d.  Classification  of  Freights. 

72.  Generally.*— The  act  recognizes, 
but  does  not  enjoin,  freight  classification. 
Coxe  V.  Lehigh  Valley  R.  Co.,  3  Int.  Com. 
Rep.  460,  4  Int.  Com.  Com.  535. 

A  classification  of  freights  is  unlawful,  if 
it  be  used  as  a  device  to  affect  unjust  dis- 
crimination, or  as  the  means  of  violating 
other  provisions  of  the  statute.  Coxe  v.  Le- 
high Valley  R.  Co. ,  3  Int.  Com.  Rep.  460,  4 
Int.  Com.  Com.  535. 

Where  an  existing  class  rate  does  not  give 
undue  advantage  to  shippers,  or  injure  car- 
riers, a  change  should  not  be  made  that 
would  materially  injure  an  important  indus- 
try at  the  point  where  parties  have  built  up 
the  industry,  relying  upon  the  maintenance 
of  a  previous  classification  which  had  long 
existed.  Bates  v.  Pennsylvania  R.  Co.,  2  Int. 
Com.  Rep.  715,  3  Int.  Com.  Com.  435.' 

A  "  like  kind  of  traffic,"  as  used  in  the  act 
(section  2)  does  not  mean  traffic  that  is  iden- 
tical, but  that  of  a  like  kind  with  other 
freight,  similar  in  character  and  cost  of 
transportation.  New  York  Board  of  Trade 
Sf  Transp.  Co.  v.  Pennsylvania  R.  Co.,  3  Int. 
Com.  Rep.  417,  4  Int.  Com.  Com.  447. 

Freights  are  usually  classified  according 
to  expense  of  carriage,  bulk,  value,  risk, 
competition,  and  other  considerations  affect- 
ing the  cost  and  value  of  transportjition 
service.  Ne7V  York  Board  of  Trade  &* 
Transp.  Co.  v.  Pennsylvania  R.  Co.,  3  Int. 
Com.  Rep.  417,4  Int.  Com.  Com.  447. 

Interstate  carriers  may  make  commodity 

*  Fixed  rates  for  certain  classes  of  goods  un- 
der the  act,  see  note,  2  L.  R.  A.  445. 


26 


INTERSTATE   COMMERCE.  73-70. 


class  rates  and  special  class  rates,  so  long  as 
they  do  not  violate  the  conditions  of  the 
statute.  New  York  Board  of  Trade  &' 
Transp.  Co.  v.  Pennsylvania  R.  Co.,  3  Int. 
Com.  Rep.  417,  4  Int.  Com.  Com.  447. 

73.  Burton  stock  ears.— A  stock  car 
company  which  charges  and  receives  from 
the  public  two  and  a  half  cents  per  mile  for 
the  use  of  its  cars  is  not  entitled  to  demand 
an  additional  payment  of  three  quarters  of  a 
cent  per  mile  from  the  carrier,  upon  the 
ground  that  carriers  pay  that  sum  to  each 
other  upon  exchanging  cars.  Burton  Stock 
Car  Co.  V.  Chicago,  B.  &-  Q.  A'.  Co.,  1  Int. 
Com.  Rep.  329,  i  /«/.  Com.  Com.  132. 

And  the  fact  that  carriers  exchange  cars 
with  one  another  in  the  manner  and  on  the 
terms  above  stated  does  not  entitle  the 
complainant,  a  stock  car  company,  to  claim 
that  it  is  unjustly  discriminated  against  by 
a  refusal  to  pay  the  same  rate  which  carriers 
adopt  for  the  use  of  cars  received  from  each 
other.  Burton  Stock  Car  Co.  v.  Chicago,  B. 
&^  Q.  R.  Co.,  I  Int.  Com.  Rep.  329,  i  Int. 
Com.  Com.  132. 

Tlie  expense  of  hauling  complainant's 
cars  in  one  direction  unloaded,  as  compared 
with  the  greater  ability  to  load  back  the 
ordinary  cattle  cars,  and  me  fact  that  a 
large  percentage  of  the  ordinary  cattle  cars 
are  back-loaded  upon  long  hauls,  is  sufficient 
to  justify  a  difference  in  charge  against 
shippers  of  live  stock,  who  prefer  to  hire  the 
improved  cars.  Burlvt  Stock  Car  Co.  v. 
Chicago,  B.  &'  Q.  R.  Co.,  1  Int.  Com.  Rep. 
329,  I  Int.  Com.  Com.  132. 

The  fact  that  the  cattle  are  transported  in 
better  condition  and  with  less  shrinkage  in 
the  improved  cars,  and  for  that  reason  are 
worth  more  at  the  end  of  the  journey,  is 
not  a  reason  which  the  carriers  can  use  as 
justifying  an  increased  charge.  Burton 
Stock  Car  Co.  v.  Chicago,  B.  d-  Q.  R.  Co.,  i 
Int.  Com.  Rep.  329,  i  Int.  Com.  Com.  132. 

Nor  is  the  fact  that  these  special  stock 
cars  are  chiefly  used  for  higher  grades  of 
stock  a  proper  ground  for  an  additional 
charge,  based  upon  the  ground  of  care  em- 
ployed in  the  service.  Burton  Stock  Car 
Co.  V.  Chicago.  B.  &■'  Q.  R.  Co.,  1  ////.  Com. 
Rep.  329,  I  Int.  Com.  Com.  132. 

74.  Car-loadH  or  less. —  Ordinarily  no 
adequate  reason  exists  for  a  dilTerence  in 
rates  for  a  car-load  quantity  of  like  traffic 
to  the  same  destination,  whether  from  one 
consignor  to  one  consignee,  or  from  several 
consignors  to  several  consignees;  and  a  dis- 


crepancy between  the  rates  for  car-loads  and 
less  than  car-loads  upon  groceries  is  un- 
reasonable when  both  go  to  one  destina- 
tion. •  Thurber  v.  New  York  C.  <S-  H.  R. 
R.  Co.,  2  ////.  Com.  Rep.  742,  3  Int.  Com. 
Com.  473. 

When  an  article  moves  in  sufficient  vol- 
ume and  the  demands  of  commerce  will  be 
better  served,  it  is  reasonable  to  give  a 
lower  classification  for  car-loads  than  that 
which  is  applied  to  less  than  car-load  quan- 
tities, but  the  difference  in  such  classifica- 
tion should  not  be  so  wide  as  to  be  de- 
structive to  competition  between  large  and 
small  dealers.  Brovmell  v.  Columbus  Sf  C. 
M.  A'.  Co.,  4  Int.  Com.  Rep.  285,  5  Int.  Com. 
Com.  638. 

Proof  of  lower  classification  of  articles 
widely  dissimilar  in  weight,  bulk,  value,  risk, 
and  general  character,  is  not  sufficient 
to  establish  unjust  classification;  but  to 
determine  whether  an  article  is  properly 
classed  it  must  be  compared  with  the  classi- 
fication of  analogous  articles.  Brownell  v. 
Columbus  &*  C.  M.  R.  Co.,  5  Int.  Com.  Com. 
638,  4  Int.  Com.  Rep.  285. 

Where  a  car-load  shipper  complains  of 
unjust  discrimination  in  giving  equal  rates 
to  those  who  ship  in  car-loads,  or  less  than 
car-loads,  the  burden  is  on  him  to  sustain 
the  charge.  Brownell  v.  Columbus  &*  C.  ill. 
R.  Co.,  5  Int.  Com.  Com.  638,  4  Int.  Com. 
Rep.  285. 

70.  Dried  fruits  and  raisins.  — 
Dried  fruits  and  raisins,  all  the  product  of 
the  same  state,  should  be  in  the  same  class 
and  at  the  same  rate.  Martin  v.  Southern 
Pac.  Co.,  2  Int.  Com.  Rep.  i,  2  Int.  Com. 
Com.  I.  . 

The  circumstances  and  conditions  of  car- 
rying such  fruit  from  San  Francisco  to  Den- 
ver, Colo.,  are  not  so  different  from  those 
attending  the  traffic  from  San  Francisco  to 
the  Missouri  river,  a  longer  distance,  as  to 
justify  charging  a  greater  sum  for  the 
short  distance.  Martin  v.  Southern  Pac. 
Co.,  2  Int.  Com.  Rep.  i,  2  ////.  Com.  Com.  i. 

7(t.  Grain  and  grtUn  products.— 
Grain  and  grain  products  belong  to  the 
same  class,  and  are  prima  facie  entitled  to 
be  carried  at  the  same  rate ;  and  if  a  carrier 
makes  a  difference,  the  burden  is  on  it  to 
sustain  it  by  satisfactory  evidence.  MC' 
Morran  v.  Grand  Trunk  R.  Co.,  2  Int.  Com. 
Rep.  604,  3  Int.  Com.  Com.  252. 

A  discrimination  between  the  rate  on 
corn  and  its  direct  products  is  a  violation 


INTERSTATE    COMMERCE,  77,  78. 


of  section  3,  where  it  is  not  founded  on  the 
character  or  condition  of  the  traffic,  and  is 
without  necessity  or  advantage  to  the  car- 
rier, notwithstanding  the  fact  that  the  rate 
on  corn  is  open  to  all  alike.  Baies  v.  Penn- 
sylvania R.  Co.,  2  Int.  Com.  Rep.  715,  3  Int. 
Com.  Com.  435. 

Assuming  that  as  a  rule  wheat  and  wheat 
flour  should  have  the  same  classification 
and  rate,  a  differential  in  favor  of  the  wheat 
is  a  discrimination,  but  under  particular 
circumstances  and  conditions  it  may  not  be 
unlawful.  Kauffman  Milling  Co.  v.  Missouri 
Pac.  R.  Co.,  3  Int.  Com.  Rep.  400,  4  Int. 
Com.  Com.  417. 

Millers  in  St.  Louis  complained  of  what 
is  known  as  "milling  in  transit,"  which 
gives  millers  at  Minneapolis  an  advantage  in 
the  shipment  of  grain  to  Chicago  or  other 
points  over  St.  Louis  ;  but  it  appeared  that 
at  the  time  of  the  complaint  a  large  number 
of  the  "  transits  "  were  out,  which  could  be 
used  at  any  time.  Held,  that  the  commis- 
sion could  not  correct  the  evil  by  authoriz- 
ing special  rates  to  the  St.  Louis  millers. 
In  re  St.  Louis  Millers'  Assoc,  i  Int.  Com. 
Com.  20,  I  /;//.  Com.  Rep.  22. 

77.  Oil  shipped  in  tanks,  or  in 
l)jirr«il.s.— Oil  and  its  products  belong  to 
the  same  class,  and  the  rates  thereon  should 
correspond,  without  reference  to  the  man- 
ner of  carrying  in  barrels  or  tanks.  Rice  v. 
Western  N.  V.  5-  /'.  R.  Co.,  3  Int.  Com. 
Rep.  162,  4  Int.  Com.  Com.  131. 

A  carrier  that  transports  oil  both  in  tank 
cars  and  by  barrels  in  common  cars  is  not 
relieved  from  the  duty  of  making  equal 
rates,  irrespective  of  the  mode  of  carriage. 
VVli-re  the  difference  in  the  method  of  car- 
riage is  the  carrier's  own  creation  it  cannot 
be  used  to  justify  the  difference  in  rates. 
Ricf  V.  Western  N.  Y.  &*  P.  R.  Co.,  3  Int. 
Com.  Rep.  162,  4  Int.  Com.  Com.  131. 

Where  a  carrier  transports  oil  in  tank 
cars  and  only  charges  for  tiie  amount  of 
the  oil,  the  same  method  must  be  applied 
to  the  carriage  of  oil  in  barrels  and  placed 
in  ordinary  cars.  It  is  error  to  make  an 
additional  charge  for  the  weight  of  the  bar- 
rels. Rice  V.  Western  A'.  V.  &*  P.  R.  Co.,  3 
Int.  Com.  Rep.  162,  4  Int.  Com.  Com.  131. 

The  method  of  charging  only  for  the 
weiiiht  of  the  oil  when  carried  in  tanks,  but 
charging  both  for  the  oil  and  the  weight  of 
the  barrels  when  barreled  and  carried  in 
common  cars,  amounts  to  unjust  di.scrimi- 
Miition,  within  the  meaning  of  the  statute. 


and  is  unlawful.  Rice  v.  Western  N,  Y.  &* 
P.  R.  Co.,  3  Int.  Com.  Rep.  162.  4  /«/.  Com. 
Com.  131. 

And  the  fact  that  a  carrier  does  not  own 
tank  cars,  but  uses  cars  belonging  to  in- 
dividuals, cannot  be  considered  in  deter- 
mining the  rates.  Rice  v.  Western  N.  V. 
&*  P.  R.  Co.,  3  Int.  Com.  Rep.  162.  4  Int. 
Com.  Com.  131. 

A  habit  of  allowing  tank  shippers  to  bill 
their  oil  at  the  full  capacity  of  the  tank, 
and  receive  pay  for  42  gallons  more  than 
the  quantity  upon  which  they  pay  rates  to 
the  carrier,  is  unjust  discrimination  and 
prohibited.  Such  allowance  cannot  be 
made  on  the  ground  of  leakage  or  waste, 
where  the  same  allowance  is  not  made  to 
shippers  in  barrels.  Rice  v.  Western  N.  Y, 
&^P.  R.  Co.,  3  Int.  Com.  Rep.  162,  4  Int. 
Com.  Com.  131. — Adhered  to  in  Rice  v. 
Cincinnati,  VV.  &  B.  R.  Co.,  3  Int.  Com. 
Rep,  841,  5  Int.  Com.  Com.  193. 

In  a  complaint  for  discrimination  as  be- 
tween shippers  of  oil  and  its  products  in 
tank  cars  and  in  barrels,  the  evidence 
showed  that  shipment  by  barrel  was  more 
dangerous  and  that  there  vas  greater 
chance  of  a  return  load  where  the  shipment 
was  by  tank,  but  that  the  difference  charged 
was  very  considerable.  Held,  that  the  com- 
mission would  equalize  the  difference,  but 
still  allow  a  charge  for  the  weight  of  the 
barrels.  In  re  Relative  T.  &*  B.  Rates  on 
Oil,  2  Int.  Com.  Rep.  245,  2  Int.  Com.  Com. 

365. 

But  the  above  decision  is  based  upon  the 
facts  relating  to  the  particular  district 
served  by  tlie  carriers  in  question,  and  will 
not  justify  a  carrier  in  a  different  district  to 
include  a  charge  for  the  weight  of  the  bar- 
rels, where  it  appears  that  tlie  difference  af- 
fecting rates  is  tlie  very  reverse.  In  re  Rel- 
ative T.  Sf  B.  Rates  on  Oil,  2  Int.  Com.  Rep. 
245,  2  Int.  Com.  Com.  365. 

78.  When  the  shipper  owns  the 
tanks. — If  a  carrier  is  unable  to  supply 
rolling  stock  and  the  shipper  supplies  it  for 
himself,  it  must  be  on  such  terms,  as  be- 
tween the  shipper  and  carrier,  as  not  to  put 
others  to  a  disadvantage.  Rice  v.  Louis7<ille 
&>  N.  R.  Co.,  I  Int.  Com.  Rep.  722,  i  Int. 
Com.  Com.  503. 

A  charge  of  unjust  discrimination  in  ship- 
ping oil  in  tank  cars  owned  by  the  shipper, 
and  returning  freights  at  low  rates  in  the 
same  cars,  is  not  sustained,  unless  there  he 
proof  of  the  payment  of  excessive  mileage. 


28 


INTERSTATE   COMMERCE,  70-83. 


or  evidence  of  niuiUiility  of  interest  of  tiie 
two  classes  of  siiippers.  AVVf  v.  Cincin- 
nati, IV.  6-  B.  A'.  Co.,  3  /;//.  Com.  Rep.  841, 
$  Int.  Com.  Com.  193. 

70.  Itatcs  on  iiinst  be  equal.— Or- 
dinarily an  individual  who  owns  a  car  wliich 
lie  hires  to  a  carrier  is  not  entitled  to  the 
exclusive  use  of  it;  but  if  lie  has  a  right  to 
"ontract  for  such  exclusive  use,  it  must  be 
on  such  terms  as  not  unjustly  to  discrimi- 
nate a<;ainst  shippers  in  cars  furnished  by 
the  carrier.  Indtpendent  Refiners'  Assoc,  v. 
Western  N.  Y.  &•  P.  R.  Co.,  5  Int.  Com.  Com. 
415,  4  /;//.  Com.  Rep.  162. 

Where  a  company  transports  oil  both  in 
barrels  and  in  tanks,  which  are  furnished 
by  certain  shippers,  the  rates  to  each  class 
of  shippers  should  be  the  same.  Indepen- 
dent Refiners'  Assoc,  v.  Western  N.  V,  &•  P. 
R.  Co.,  5  Int.  Com.  Com.  415.  4  Int.  Com. 
Rep.  162. 

80.  M»!at  products. — The  Chicago 
board  of  trade  complained  of  unjust  dis- 
crimination in  charging  a  higher  rate  for 
transporting  live  hogs  from  various  points 
in  Iowa,  Missouri,  and  Kansas  than  was 
charged  for  the  transportation  of  meat  prod- 
ucts. Ne/d,  that  such  discrimination  could 
not  be  justified  on  the  ground  that  trains 
carrying  live  hogs  had  the  right  of  way 
over  freight  trains  carrying  meat  prod- 
ucts, and  would  therefore  run  at  a  higher 
rate  of  speed,  requiring  shorter  time  for  the 
transportation.  Chicago  Board  of  Trade  v. 
Chicago  &*  A.  R.  Co.,  4  Int.  Com.  Com.  158, 
3  /;//.  Com.  Rep.  233. 

Neither  does  the  evidence  show  that  such 
discrimipitif.il  is  justifiable  on  the  ground 
ti: ,  ..  .  more  expensive  to  the  carrier  to 
h    i;  if^t.  than  packing  house  products. 

,'   ^^^  I  d  of  Trade  v.  Chicago  (S-  A.  R. 

Co.,  x   '.   t.  "■</,(•.  Com.  158,  3  Int.  Com.  Rep. 

Neitiier  cfiu  such  discrimination  be  justi- 
fied on  the  ground  that  but  few  of  the  roads 
west  of  Chicago  are  provided  with  double- 
deck  cars,  which  are  often  employed  in  car- 
rying live  hogs,  and  add  to  the  number  or 
weight  that  could  be  carried  in  a  car.  Chi- 
cago Board  of  Trade  v.  Chicago  <S«»  A.  R. 
Co.,  .\Int.  Com.  Com.  158,  3  Int.  Com.  Rep. 
233- 

It  was  also  claimed  that  such  discrimina- 
tion was  justified  on  the  ground  that,  count- 
intr  coal,  cooperage,  salt,  and  ice  used  in 
packing  pork,  the  carrying  of  the  hogs  in 
and   the  product  out,  the  slaughtering  of 


hogs  in  the  states  named  furnished  the  car- 
riers more  tonnage  than  if  the  hogs  were 
carried  to  Chicago  alive.  Ile/d,  tliat  this 
was  no  ground  for  such  discrimination. 
Chicago  Board  of  Trade  v.  Chicago  &•  A. 
R.  Co.,  4  Int.  Com.  Com.  158,  3  Int.  Com. 
Rep.  233. 

81.  Patent  medicines.— The  value 
of  an  article  to  a  manufacturer  is  the  price 
it  commands,  and  it  is  but  reasonable  that 
carriers  should  take  into  account  the  mar- 
ket value  as  one  of  the  considerations  in  ar- 
ranging a  classification  and  fixing  the  rates 
that  should  be  paid  for  the  shipment  of  the 
article.  Warner  v.  A'eitf  York  C.  &^  H.  R. 
R.  Co.,  3  Int.  Com.  Rep.  74,  4  Int.  Com.  Com. 

32. 

And  in  arranging  such  classification  and 
rates  not  only  the  market  value  of  the 
article,  but  the  representations  of  the  ship- 
per may  be  taken  into  consideration.  So 
held,  where  a  shipper  of  patent  medicines 
claimed  that  it  did  not  have  a  greater  in- 
trinsic value  than  ale,  beer,  and  mineral 
waters,  and  therefore  should  not  be  charged 
a  higher  rate ;  but  where  he  represented  it 
to  the  public  as  much  more  valuable  and 
sold  it  in  the  market  at  a  much  higher  price. 
Warner  v.  New  York  C.  <^  H.  R.  R.  Co.,  3 
Int.  Com.  Rep.  74,  4  Int.  Com.  Com.  32. 

And  the  volume  of  business  furnished  to 
carriers  by  a  particular  article  is  a  proper 
element  to  be  considered  in  determining  its 
classification  and  rates.  So  where  ale,  beer, 
and  mineral  waters  are  shipped  in  very  much 
greater  quantities  than  complainant's  medi- 
cines, it  is  a  reason  for  giving  a  different 
classification.  Warner  v.  New  York  C.  <S» 
H.  R.  R.  Co.,  3  Int.  Com.  Rep.  74,  4  Int. 
Com.  Com.  32. 

The  fact  that  a  lower  classification  was 
given  to  complainant's  medicines  under 
some  other  classifications  existing  prior  to 
the  creation  of  the  commission  is  in  no  way 
controlling.  Warner  v.  New  York  C.  <S~» 
H.  R.  R.  Co.,  3  Int.  Com.  Rep.  74,  4  Int.  Com, 
Com.  32. 

82.  Railroad  ties.  —  Railroad  ties 
should  be  classed  the  same  as  lumber  ;  and 
the  classification  of  such  ties  diflferently  is 
unjust  discrimination.  Reynolds  v.  M'est- 
em  N.  Y.  SfP.  R.  Co.,  i  Int.  Com.  Rep.  685.  i 
Int.  Com.  Com.  393. 

83.  Salt. — Salt  is  an  article  which  re- 
quires and  gets  a  commodity  rate  lower  than 
class  rates,  and  the  general  rule  applicable 
thereto  seems  properly  to  be  that  if  it  be 


INTERSTATE   COMMERCE,  84-80. 


29 


placed  at  commodity,  or  lower  than  class 
rates,  the  only  limitation  upon  the  carriers 
should  be  that  the  coinniodiiy  sliould  not 
be  carried  at  entirely  unremunerative  rates, 
so  as  to  impose  burdens  upon  other  articles 
of  transportation  to  recoup  loss  incurred 
111  carrying  the  salt.  Anthony  Salt  Co.  v. 
Missouri  Pac.  R.  Co.,  5  Int.  Com.  Com.  299, 
4  /;//.  Com.  Rep.  33. 

In  determining  whether  there  is  a  dis- 
crimination in  the  rates  for  carrying  salt 
from  the  Michigan  saltworks  west,  and  for 
carrying  salt  from  the  Kansas  salt  works 
north  and  east,  the  fact  that  there  is  part 
water  transportation  from  the  Michigan 
district,  and  that  it  is  easier  to  get  empty 
cars  from  a  distributing  point  like  Chicago 
west  than  it  is  to  get  empty  ones  from  the 
Kansas  district  east,  especially  during  the 
season  when  the  roads  are  carrying  grain  to 
market,  must  be  considered.  Anthony  Salt 
Co.  V.  Missouri  Pac.  R.  Co.,  %Int.  Com.  Com, 
299,  4  I)it.  Com.  Rep.  33. 

84.  Soaps. — Wliere  a  manufacturer  of 
soap  describes  it  to  the  public  as  a  toilet 
soap,  such  description  may  be  taken  by 
carriers  for  the  purpose  of  classification  and 
rates.  Andrews  Soap  Co.  v.  Pittsburgh,  C. 
&^  St.  L.  R.  Co.,  3  /;//.  Com.  Rep.  77,^  Int. 
Com.  Com.  41.— Disitnguished  in  Beaver 
V.  Pittsburg,  C.  &  St.  L.  R.  Co..  3  Int. 
Com.  Rep.  564,  4  Int.  Com.  Com.  733. 

In  such  cases  carriers  are  not  required  to 
analyze  the  freight  shipped  to  ascertain 
whether  it  is  in  fact  inferior  to  the  descrip- 
tion given  by  the  manufacturers  and  ship- 
pers to  the  public,  in  order  to  secure  for  it  a 
lower  classification  and  rate.  Andrews 
Soap  Co.  V.  Pittsburgh.  C.  &•  St.  L.  R.  Co., 
3  Int.  Com.  Rep.  77,  4  Int.  Com.  Com.  41. 

Where  two  kinds  of  soap  are  advertised 
.".nd  held  out  to  the  public  as  suitable  for 
like  purposes,  and  they  are  so  used,  they 
should  receive  the  same  classification  and 
rates.  Reaver  v.  Pittsburg,  C.  &•  St.  L.  R. 
Co.,  3  Int.  Com.  Rep.  564,  ^  Int.  Com.  Com. 
733.— Distinguishing  Andrews  Soap  Co, 
V.  Pittsburgh,  C.  &  St.  L.  R.  Co.,  3  Int. 
Com.  Rep.  77. 

What  are  known  as  "  Grandpa's  Wonder 
Soap"  and  "  Ivory  Soap  "  are  each  suitable 
for  laundry  and  for  toilet  purposes,  and  fall 
within  the  above  rule,  and  should  therefore 
receive  the  same  classification  and  rates. 
[leaver  v.  Pittsburg,  C.  S^  St,  L.  .V.  Co.,  3 
Int.  Com.  Rep.  564,  4  Int.  Com.  Com.  733. 

The  Southern  Railway  &  Steamship  Asso- 


ciation, of  which  defendant  is  a  member, 
placed  the  soap  known  as  "  Pearline"  in  the 
fourth  class,  with  a  rate  of  73  cents  per  hun- 
dred between  New  York  and  Atlanta,  Ga., 
and  common  soap  is  placed  in  the  sixth  class, 
at  49  cents,  hut  a  special  rate  is  given  on 
common  soap  of  33  cents.  Tlie  evidence 
showed  that  Pearline  was  competitive  with 
common  soap.  Held,  that  Pearline  should 
be  placed  m  the  fifth  class,  and  that  the  rel- 
ative difference  in  the  rates  must  not  exceed 
the  difference  of  60  cents  per  hundred  on 
Pearline  and  33  cents  on  common  soap, 
Pjle  V.  East  Tenn.,  V.  <r«-  G.  R.  Co.,  1  Int. 
Com.  Rep.  767,  i  Int.  Com.  Com.  465. 

85.  Sugar  iu  barrels. — Where  a  car- 
rier transports  two  barrels  of  sugar  to  one 
person,  and  carries  one  barrel  for  another 
person  two  days  later,  between  the  same 
points  and  in  the  same  direction,  it  is  "  a 
like  service,"  within  the  meaning  of  section  2. 
The  fact  that  the  shipper  of  two  barrels 
furnishes  the  road  much  more  traffic  than 
the  shipper  of  the  other  barrel  does  not 
make  the  circumstances  and  conditions  so 
dissimilar  as  not  to  come  within  the  mean- 
ing of  the  statute.  United  States  v.  Tozer, 
39  Fed.  Rep.  369. 

But  where  the  carrier  receives  the  two 
barrels  of  sugar  from  a  connecting  carrier, 
the  fact  that  its  proportion  of  a  through  rate 
would  be  12  cents  per  hundred  less  than 
the  rate  on  the  other  barrel  carried  over  its 
road  alone  would  not  in  itself  make  the  dif- 
ference unlawful,  as  the  carriage  is  under 
substantially  dissimilar  circumstances  and 
conditions.  United  States  v.  Tozer, 'ig  Fed, 
Rep.  369. 

But  in  such  case,  whether  a  difference  of 
12  cents  per  hundred  pounds  was  so  dis- 
proportionate as  to  amount  to  undue  and 
unreasonable  preference  in  favor  of  the 
through  shipper,  and  to  be  in  violation  of 
section  3,  is  a  question  for  the  jury.  United 
States  V.  Tozer,  39  Fed.  Ret>.  369. 

86.  Uiiderbilltng-Wroiidr  billing. 
— Common  carriers  must  act  equally  in  serv- 
ing the  public,  and  should  be  held  respon- 
sible for  exact  weights  and  classifications, 
and  in  turn  should  require  the  same  of  all 
their  agents.  In  re  Underbilling ,  i  Int.  Com. 
Rep.  813,  I  Int.  Com.  Com.  633. 

Unjust  discrimination  may  result  from 
underbilling  where  the  favored  shipper 
pays  less  than  is  charged  to  others  for  the 
same  service.  In  re  Underbilling,  i  Int. 
Com.  Rep.  813,  i  Int.  Com.  Com.  633. 


mi 


i^^ 


'i!Mn 


30 


INTERSTATE   COMMERCE,  87-8». 


And  billing  freight  to  a  certain  point  at  a 
lower  rale,  if  it  is  to  be  reshipped  beyond 
the  point  of  destination,  is  unlawful.  North- 
western Iowa  G.  &*  S.  Shippers  Assoc,  v. 
Chicago  &*  N.  IV.  A'.  Co.,  2  Int.  Com.  Rep. 
431,  2  Int.  Com.  Com.  604. 

e.  Carriage  of  Passengers. 

87.  Party-rut«  tickets.*— Wh«re  the 

established  rate  for  single  passengers  is 
tlirec  cents  a  mile,  it  is  not  unlawful  to 
issue  what  are  termed  "  party-rate  tickets  " 
for  not  less  than  ten  persons,  at  two  cents  a 
mile,  where  such  tickets  are  offered  to  the 
public  generally.  Such  tickets  do  not 
amount  to  undue  or  unreasonable  prefer- 
ence or  advantage,  within  the  meaning  of 
the  Interstate  Commerce  Act,  §§  2,  3.  Inter- 
state  Commerce  Commission  v.  Baltimore  &»  O. 
K.  Co.,  145  U.S.  263,  12  S»p.  Ct.  Rep.  844, 
4  /;//.  Com.  Rep.  92  ;  affirming  43  Fed.  Rep. 
37,  3  Int.  Com.  Rep.  192.— Followed  in 
Foster  V.  Cleveland,  C,  C.  &  St.  L.  R.  Co., 
56  Fed.  Rep.  434. 

In  order  to  constitute  unjust  discrimina- 
tion undei-  section  2  of  the  act,  the  carrier 
must  charge  or  receive  directly  from  one 
person  a  greater  or  less  compensation  than 
from  another ;  or  must  accomplish  the  same 
thing  indirectly  by  means  of  a  special  rate, 
rebate,  or  other  device  ;  but  in  either  case 
it  must  be  for  "  a  like  and  contemporaneous 
service,  in  the  transportation  of  a  like  kind 
of  traffic,  under  substantially  similar  circum- 
stances and  conditions."  Interstate  Com- 
merce Commission  v.  Baltimore  &*  O.  R.  Co. , 
145  U.  S.  263,  12  Sup.  Ct.  Rep.  S44,  4  Int 
Cow.  Rep.  92 ;  affirming  43  Fed.  Rep  37,  3 
Int.  Com.  Rep.  192. 

To  bring  the  present  case  within  the 
words  of  the  above  section  it  must  be  pre- 
sumed that  the  transportation  of  ten  per- 
sons on  a  single  ticket  is  substantially  iden- 
tical with  the  transportation  of  one,  which, 
in  view  of  the  universally  accepted  fact  that 
a  man  may  buv,  contract,  or  manufacture 
on  a  large  scale  cheaper  proportionately 
than  upon  a  small  scale,  is  impossible.  In- 
terstate Commerce  Commission  v.  Baltimore 
&^  O.  R.  Co..  145  (/.  S.  263,  12  Sup.  Ct.  Rep. 
844,  4  /;//.  Com.  Rep.  92 ;  affirming  43  Fed. 
^^P-  37.  3  Int-  Com.  Rep.  192. 
There  is  nothing  in  the  objection  that 


*  Interstate  Commerce  Act  as  to  "party-rate 
tickets  "  construed,  see  45  Am.  &  Eng.  R.  Cas. 
246,  abstr. 


party-rate  tickets  afford  facilities  for  specu- 
lation, and  that  they  will  be  used  by  ticket 
brokers  or  scalpers  for  the  purpose  of  evad- 
ing the  law,  as  such  tickets  would  be  much 
less  available  or  easily  handled  by  brokers 
than  a  ticket  for  the  transportation  of  a 
single  person  ;  but  if  such  tickets  should  be 
made  a  pretext  for  evading  the  law,  the 
courts  would  have  no  difficulty  in  applying 
the  proper  remedy.  Interstate  Commerce 
Commission  v.  Baltimore  &*  O.  R.  Co.,  145 
U.  S.  263,  12  Sup.  Ct.  Rep.  844,  4  ////.  Com. 
Rep.  92 ;  affirming  43  Fed.  Rep.  yj,  3  Int. 
Com.  Rep.  192. 

Both  car-load  rates  to  passengers  and 
party  rates,  lower  than  for  a  single  passen- 
ger, are  illegal.  In  re  Passenger  Tariffs,  2 
Int.  Com.  Rep.  445,  2  Int.  Com.  Com.  649. 

Party-rate  tickets  and  commutation  tick- 
ets are  not  the  same ;  and  when  a  partv- 
rate  ticket  is  sold  for  less  than  the  fare  for  a 
single  passenger  it  is  illegal.  Pittsburgh,  C. 
&•  St.  L.  R.  Co.  V.  Baltimore  &*  O.  R.  Co.. 
2  Int.  Com.  Rep.  729,  3  Int.  Com.  Com.  465. 
88.  Special  rates  to  eoiiiiiiervial 
travelers. — The  sale  of  mileage  tickets  to 
commercial  travelers,  and  a  refusal  to  sell  to 
other  travelers  at  the  same  rate,  is  unjust 
discrimination,  within  the  meaning  of  sec- 
tion 2  of  tiie  act.  Larrison  v.  Chicago  <S«  G. 
T.  R.  Co.,  I  Int.  Com.  Rep.  369,  i  Int.  Com. 
Com.  147.  Associate  Wholesale  Grocers  v. 
Missouri  Pac.  R.  Co.,  i  Int.  Com.  Rep.  393, 
I  Int.  Com.  Com.  156. 

And  the  facts  that  commercial  travelers 
release  the  carriers  from  liability,  and  that 
they  may  influence  business  in  favor  of  the 
carriers,  are  not  sufficient  to  justify  such 
discrimination.  Larrison  v.  Chicago  tS-»  G. 
T.  R.  Co.,  I  Int.  Com.  Rep.  369,  i  Int.  Com. 
Com.  147. 

89.  Selling  tickets  at  red  need  rates 
through  brokers. — The  placing  of  pas- 
sengers tickets  in  the  hands  of  brokers  or 
scalpers  to  be  disposed  of  at  reduced  rates, 
under  the  pretense  of  paying  a  commission, 
is  a  violation  of  the  statute.  In  re  Passenger 
T.  6-  R.  Wars,  2  Int.  Com.  Rep.  340,  2  Int. 
Com.  Com.  513. 

Any  rates  lower  than  those  established 
by  the  regular  tariff  are  illegal,  whether 
sold  directly  or  through  others.  In  re 
Passenger  T.  &•  R.  Wars,  2  Int.  Com.  Rep. 
340,  2  Int.  Com.  Com.  513. 

And  the  unjust  discrimination  which  the 
statute  denounces  is  accomplished  in  any 
case  where  a  ticket  broker  sells  tickets  for 


INTERSTATE   COMMERCE,  90-93. 


31 


a  less  sum  than  they  can  be  bought  at  the 
carrier's  office.  /«  re  Passenger  T.  &*  R. 
Wars,  2  Int.  Com.  Nep.  340,  2  Int.  Com. 
Com.  513 

no.  Graiitiui;  free  passes.— The  of- 
fense, under  section  2,  of  giving  free  trans- 
portation to  an  individual,  consists  in 
charfjing,  demanding,  collecting,  or  receiv- 
iii;j;  by  tiie  carrier  from  some  other  person, 
or  persons,  a  compensation  for  a  like  ser- 
vice when  none  is  contemporaneously 
charged  or  received  from  the  person  thus 
transported  free.  Griffee  v.  Burlington  (S- 
M.  R.  R.  Co.,  2  Int.  Com.  Rep.  194,  2  ////. 
Com.  Com.  301. 

Where  a  free  pass  is  given  to  a  discharged 
employe  of  a  company  on  the  assumption 
that  he  might  still  be  regarded  as  an  em- 
ploye, but  it  affirmatively  appears  that  it 
was  never  used,  and  that  it  expired  in  the 
hands  of  the  party  to  whom  it  was  issued, 
by  limitation  contained  on  its  face,  and  was 
produced  before  the  commission  as  an  un- 
used instrument  in  a  proceeding  in  which  a 
complaint  of  its  issue  was  made,  it  was  held 
that  the  facts  did  not  show  that  a  breach  of 
section  2  of  the  act  had  been  committed,  no 
free  transportation  having  been  charged, 
and  the  party  being  entitled  to  none  accord- 
ing to  the  terms  of  the  instrument  as  it  then 
was.  Griffee  v.  Burlington  6-  M.  R.  R.  Co., 
2  Int.  Com.  Rep.  194,  2  Int.  Com.  Com. 
301. 

In  cases  of  wilful  violation  of  the  law  it 
may  become  the  duty  of  the  commission  to 
lay  the  facts  before  the  proper  United 
States  district  attorney ;  but  it  will  refuse 
to  do  so  where  the  complaint  is  made  for  the 
avowed  purpose  of  retaliation,  because  the 
carrier  has  revoked  a  pass  which  the  com- 
plainant held.  Slater  v.  Northern  Pac.  R. 
Co.,  2  Int.  Com.  Rep.  243.  2  Int.  Com.  Com. 
359- 

Under  the  statute  railroad  companies  can 
only  issue  free  transportation  to  persons 
who  are  in  its  regular  service  as  employes; 
and  a  person  who  receives  no  compensation 
except  free  transportation  over  the  road 
"for  throwing  what  business  he  conven- 
iently can  in  their  way  "  is  not  within  the 
provision  of  the  statute.  Slater  v.  Northern 
Pac.  R.  Co.,  2  Int.  Com.  Rep.  243,  2  Int.  Com. 
Com.  359. 

To  grant  free  transportation  to  city 
officials,  on  account  of  their  official  posi- 
tions, is  unjust  discrimination  within  the 
meaning  of  section  2.     Harvey  v.  Louisville 


&*  N.  R.  Co..  3  Int.  Com.  Rep.  793,  5  Int. 
Com.  Com.  153. 
01.  Liiniited  and  unlimited  tickets. 

— A  company  advertised  for  sale  two  kinds 
of  tickets  between  designated  places;  one 
termed  an  unlimited  ticket,  sold  for  $11.50, 
and  the  other,  a  limited  ticket,  sold  for  $7. 
These  two  classes  of  tickets  were  accessible 
to  every  one  who  chose  to  buy  them.  Heltl, 
that  the  sale  of  the  lower  price  ticket, 
which  did  not  give  the  holder  the  right  to 
stop  over  at  intermediate  stations,  was  not 
unlawful,  because  it  was  not  dated  or 
punched  so  as  to  limit  the  time  of  using  it, 
in  the  absence  of  anything  by  the  commis- 
sion or  the  carrier  defining  exactly  what 
was  meant  by  limited  and  unlimited  tickets. 
United  States  v.  Egan,  ^7  Fed.  Rep.  1 1 2. 

6.  Preference  or  Advantage. 

92.  Generally.*— Naming  a  rate  from 
one  place  lower  than  that  named  from  a 
neighboring  place  amounts  to  a  preference, 
where  the  circumstances  are  the  same;  and 
when  a  shipper  is  damaged  thereby  it  be- 
comes undue  and  unreasonable  preference, 
unless  it  can  be  justified.  In  re  Tariffs  of 
the  Transcontinental  Lines,  2  ////.  Com.  Rep. 
203,  2  Int.  Com.  Com.  324. 

A  conviction  for  the  violation  of  the 
"  undue  preferences  "  clause  of  the  act  can- 
not be  sustained  where  the  criminality  of 
the  act  is  made  to  depend  on  whether  the 
jury  think  a  preference  reasonable  or  un- 
reasonable. To  constitute  a  crime,  the  act 
must  be  one  the  criminality  of  which  the 
party  is  able  to  know  in  advance.  Tozer  v. 
United  States,  53  Am.  &*  Eng.  R.  Cas.  14, 
52  Fed.  Rep.  917.— Quoting  Chicago  &  N. 
W.  R.  Co.  V.  Dey,  35  Fed.  Rep.  866. 

93.  In  furnishing  cars,  f— In  the 
absence  of  a  custom  or  rule  requiring  a  car- 
rier to  notify  a  shipper  when  cars  can  be 
obtained,  it  is  not  the  duty  of  the  carrier  to 
give  such  notice,  but  it  is  the  duty  of  the 
shipper  to  make  reasonable  inquiry ;  but  the 
obligation  of  the  company  in  this  regard 
may  be  changed  by  contract.  Riddle  v. 
Baltimore  &*  O.  R.  Co..  i  Int.  Com.  Rep. 
778,  I  Int.  Com.  Com.  608. 

*  "  Undue  preference  "  clause  of  Interstate 
Commerce  Act  construed,  see  55  Am.  &  Eng.  R. 
Cas.  578,  ahstr. 

t  A  failure  to  furnish  cars  owing  to  inability, 
no  violation  of  the  act.  Duty  to  furnish  cars 
ratably.  Undiie  preference,  see  32  Am.  &  Eng. 
R.  Cas.  612.  abstr. 


! 


S2 


INTERSTATE   COMMERCE,  04,  U5. 


Where  a  carrier  is  charged  with  unjust 
discrimination  as  iigainst  a  certain  shipper, 
it  is  competent  (or  it  to  show  tliat  during  a 
long  course  of  business  neither  the  company 
nor  any  of  its  agents  liad  ever  manifested 
any  unfriendly  feeling  toward  the  slii|)per, 
Inil  on  the  other  liaiid,  just  Ijcfore  the  mat- 
ter complained  of,  it  had  made  extra  ex- 
ertions, in  good  faith,  to  serve  the  shipper 
in  i)r()cnring  cars  from  a  connecting  line. 
Riddle  V.  lialtimorc  &*  O.  A'.  Co.,  i  Int.  Com. 
Rep.  778,  I  /;//.  Com.  Com.  608. 

The  public  must  be  justly  and  equally 
served  in  the  furnishing  of  cars;  and  at  the 
linu-  of  unusual  pressure  of  business,  regular 
patrons  of  the  road  are  not  entitled  to  pref- 
erence. Riddle  v.  New  York,  L.  E.  &>  W. 
H.  Co..  I  Int.  Com.  Rep.  787,  i  Int.  Com. 
Com.  594. 

VVliere  a  particular  kind  of  cars  are  not 
equal  to  the  demand,  other  cars  should  be 
appropriated.  Riddle  v.  Ne^v  York,  L.  E. 
&*  IV.  R.  Co.,  I  Int.  Com.  Rep.  787,  i  Int. 
Com.  Com.  594- 

And  a  carrier  is  not  justified  in  refusing 
cars  for  a  certain  kind  of  traffic,  such  as 
coal,  on  the  ground  that  it  cannot  furnish 
cars  for  all  of  its  business  at  the  time,  and 
that  it  can  make  more  money  in  using  the 
cars  for  other  purposes.  Riddle  v.  New 
York,  L.  E.  &*  W.  R.  Co.,  i  Int.  Com.  Rep. 
787.  1  Int.  Com.  Com.  594. 

A  charge  of  undue  preference  in  furnish- 
ing cars  to  a  certain  line  of  shippers,  in  that 
Llie  company  did  not  require  the  cars  to  be 
unloaded  and  returned  promptly,  is  not  sus- 
tained, where  the  evidence  shows  that  only 
slight  delays  had  been  made,  and  then 
against  the  instructions  of  the  company, 
and  that  it  had  even  imposed  demurrage 
charges.  Riddle  v.  Pittsburgh  &j  L.  E.  R. 
Co.,  I  Int.  Com. Rep.  688,  i  Int.  Com.  Com.  374. 
Where  an  emergency  occurs  that  tempo- 
rarily prevents  a  carrier  from  furnishing 
cars  as  fast  as  desired,  it  is  its  duty  to  fur- 
nish them  ratably  to  all  shippers.  Riddle  v. 
rntshnrgh  &•  L.  E.  R.  Co.,\  Int.  Com.  Rep. 
688,  I  Int.  Com.  Com.  374. 

A  carrier  does  not  violate  the  statute  by 
refusing  to  allow  cars  to  be  sent  oflF  its  road 
when  its  own  business  keeps  the  cars  fully 
occupied.  Riddle  v.  Pittsburgh  &>  L.  E.  R. 
Co..  I  Int.  Com.  Rep.  688,  i  Int.  Com.  Com. 
374. 

04.  As  between  carriers.— Where  a 
nilrnad  company  has  provided  proper  and 
equal  facilities  for  the  interchange  of  traffic 


at  an  established  yard  or  depot,  a  refusal  to 
exchange  traffic  with  a  new  road  at  another 
point  where  no  such  facilities  exist,  f'  jes  not 
constitute  discrimination,  or  undue  or  un- 
reasonable preference  or  advantage.  Ken- 
tucky &•  I.  Bridge  Co.  v.  Louisville  ^^  N.  R. 
Co.,  37  Fed.  Rtp.  567,  z  L.  R.  A.  2S9,  2  Int. 
Com.  Rtp.  351.— DisTiNUUisnK!)  IN  Little 
Rock  &  M.  K.  Co.  V.  Kast  Tenn.,  V.  cS:  (i. 
R.  Co.,  47  Fed.  Rep.  771.  yuoTEU  IN  Or- 
egon S.  L.  &  U.  N.  R.  Co.  V.  Northern  Pac. 
R.  Co.,  51  Am.  &  Eng.  H.  Cas.  145,  51  Fed. 
Rep.  465. 

The  act  (section  3)  does  not  mean,  when 
a  company  provides  for  the  interchange  of 
business  with  connecting  roads  at  one  place, 
that  it  is  bound  to  provide  like  facilities  at 
other  points,  where  other  roads  may  make 
connections;  but  it  simply  means  that  when 
a  company  has  provided  such  facilities  at 
one  place  it  must  furnish  tlicm  alike  to  all. 
Kentucky  Sr*  I.  Bridge  Co.  v.  Louisville  &^  N. 
R.  Co.,  37  Fed.  Rep.  567,  2  L.  R.  A.  289,  2 
Int.  Com.  Rep.  351. 

95.  As  between  localities.*— Rates 
must  be  relatively  fair  and  reasonable  as  be- 
tween lootilities  in  essential  respects  simi- 
larly situated,  not  according  to  any  rule  of 
mathematical  precision,  but  in  substance 
and  in  (act,  having  regard  to  the  geographi- 
cal and  relative  positions  of  the  localities, 
so  that  one  will  not  be  favored  to  the  unjust 
prejudice  of  the  other.  Detroit  Boani  0/ 
Trade  v.  Grand  Trunk  R.  Co.,  2  Int.  Com. 
Rep.  199,  2  Int.  Com.  Com.  315. 

Where  a  number  of  carriers  unite  in  a  sys- 
tem of  through  rates  covering  an  extended 
territory,  which  seem  reasonable  in  them- 
selves, and  relatively  fair,  the  commission 
will  not  direct  them  to  be  changed  at  one 
point  where  the  effect  would  be  to  ntake 
other  changes  at  many  other  points  neces- 
sary, and  thus  unsettle  values,  unless  sub- 
stantial justice  requires  it.  Detroit  Board 
of  Trade  v.  Grand  Trunk  R.  Co.,  2  Int.  Com. 
Rep.  199,  2  Int.  Com.  Com.  315. 

Where  a  carrier  gives  a  through  rate  on 
cotton  it  is  not  a  violation  of  sections  2  and 
3  to  give  the  same  through  rate  with  the 
privilege  of  having  the  cotton  stopped  at  an 
intermediate  point,  where  it  is  compressed 
at  the  expense  of  the  carrier,  where  the  rate 
is  open  to  all  alike.  Cowan  v.  Bond,  igFed. 
Rep.  54,  2  Int.  Com.  Rep.  542. 


*  Preference  as  to  localities,  see  note,  2  L.  R. 

A.  445- 


INTliRSTATIi    COMMERCIi,  00-U». 


sa 


The  board  of  trade  of  the  city  of  Detroit 
complained  that  tliat  city  was  unjustly  dis- 
criminated against  in  maliing  rates  on  ship- 
nienis  originating  at  or  destined  to  that 
city,  78  per  cent,  of  ilie  Chicagcj  rate  on  cast 
as  well  as  west  bound  freigliis,  when  it  was 
claimed  that,  taking  into  consideration  the 
distance  and  the  gcograpliical  position  of 
Detroit,  the  percentage  should  be  70  pur 
cent,  of  the  Chicago  rate.  Held,  that  a  claim 
made  under  this  complaint  that  the  through 
rate  must  be  proportioned  to  distance, 
could  not  be  sustained.  Detroit  lUnird  of 
Trade  v.  Grand  Trunk  R.  Co.,  2  Int.  Coin. 
Kep.  199,  2  /;//.  Com.  Com.  315. 

»«.  Ill  preierrliiy;  traUc  ceiitros.*— 
Large  C(jmmercial  places  which  arc  desig- 
nated as  trade  centres  are  not,  as  a  matter 
of  right,  entitled  to  more  favorable  rates 
than  smaller  places  wiiich  are  generally  sup- 
plied from  the  trade  centres;  and  it  is  not 
unlawful  to  give  the  smaller  places  as  favor- 
able rates  as  the  large  ones.  Martin  v. 
Chicago,  B.&r'  Q.  R.  Co.,  2  Int.  Cow.  Rep. 
32,  2  Int.  Com.  Com.  25. 

But  where  the  rates  are  impartial  in  them- 
selves as  between  different  trade  centres,  the 
fact  that  one  has  an  advantage  over  another 
in  supplying  the  small  places  does  not  make 
out  a  case  of  undue  preference  under  the 
statute.  Impartial  rates  are  not  rendered 
illegal  by  their  effect  upon  different  locali- 
ties. Martin  v.  Chicago,  B.  &^  Q.  R.  Co.,  2 
/;//.  Com.  Rep.  32,  2  ////.  Coin.  Com.  25. 

Such  distributing  centres  have  no  right 
to  demand  that  the  rates  to  more  distant 
and  smaller  places  shall  be  made  up  of  the 
rate  to  the  large  place,  plus  the  rate  from 
tliere  to  the  smaller  places.  Rates  may  be 
made  directly  to  the  small  places  less  than 
the  two  rates.  Martin  v.  Chicago,  B.  &*  Q. 
R.  Co.,  2  Int.  Com.  Rep.  32,  2  Int.  Cow.  Com. 


-3- 

i>7.  In  prcferriiit;  one  shipper  01* 

class  of  |;o»ds.— A  carrier  has  no  right 
to  refuse  less  desirable  freights  because 
more  can  be  made  in  carrying  another  kind. 
Ridd/e  V.  A>j£/  Vori;  L.  E.  (S-  W.  R.  Co.,  i 
Int.  Cow.  Rep.  787,  i  Int.  Com.  Com.  594. 

it  is  not  necessary  for  a  shipper  to  make 
a  special  contract  with  a  common  carrier  in 
order  to  entitle  him  to  transportation  for 
his  goods.  A  common  carrier,  by  virtue  of 
his  assuming  that  position,  thereby  becom- 

*  Distributing  trade  centres  are  not  entitled  to 
preference,  see  note,  2  L.  R.  A.  446. 
6  D.  R.  D.— 3. 


ing  entitled  to  the  privileges,  liens,  and  pro- 
tections given  by  statute  and  the  common 
law,  becomes  bound  to  carry  the  merchan- 
dise of  all  for  a  reasonable  reward,  when- 
ever tendered  in  the  usual  way.  Riddle  v. 
AVw  York,  L.  E.  &'  IF.  A'.  Co..  i  Int.  Cow. 
Rep.  7S7,  I  Int.  Cow.  Com.  594. 

08.  In  niakiiit;  n  Joint  tliroiiKli 
|.,it4.,_A  joint  through  tariff  agreed  upon 
by  two  connecting  lines,  or  the  share  of  it 
which  either  line  takes,  is  not  the  standard 
by  which  to  determine  whether  either  line, 
by  its  local  rates,  grants  undue  preferences. 
Toser  v.  United  .States,  53  Am.  &^  Eng.  R. 
Can.  14,  52  Fed.  Rep.  917.— Following  Chi- 
ca;^'o  &  N.  W.  R.  Co.  v.  Osborne,  52  Fed. 
Kep.  912. 

Divisions  of  a  joint  rate  among  the  car- 
riers are  sometimes  inquired  into  for  the 
purpose  of  ascertaining,  from  the  divisions, 
wiicthcr  a  rate  unreasonable  in  itself  may 
not  be  traced  to  the  inequality  of  such  divi- 
sions. Perry  v.  Florida  C.  &*  P.  R.  Co.,  3 
/;//.  Cow.  Rep.  740,  5  ////.  Com.  Com.  97. 

7.  Facilities  for  the  Interchange  of  Traffic. 

»».  Equal   facilities,   generally.*— 

A  railroad  company  complaining  of  dis- 
crimination by  a  connecting  road,  charged 
in  its  petition  that  the  defendant  company 
deprived  complainant  "  of  equal  facihties 
with  a  competing  line  for  interchange  of 
traffic,  a  discrimination  in  rates,  the  with- 
drawal of  a  joint  through  traffic,  and  a 
threat  to  close  a  through  route  "  by  way  of 
complainant's  road.  Held,  that  the  com- 
plaint charged  both  a  discrimination  in 
rates  and  a  failure  to  provide  equal  facili- 
ties for  the  interchange  of  traffic,  within  the 
meaning  of  section  3,  as  amended  in  1889. 
New  York  &*  N.  R.  Co.  v.  Nevi  York  lS^•  A'. 
E.  R.  Co.,  S3  Am.  <S-  Eng.  R.  Cas.  7,  50  Fed. 
Rep.  867. 

Where  the  commission  has  found  that 
defendant  company  lias  deprived  plaintiff 
company  "of  equal  facilities  for  the  inter- 
change of  traffic,"  and  a  proceeding  is  insti- 
tuted in  a  federal  court  to  enforce  the  order 
of  the  commission,  it  may  be  shown  that 
defendant  so  arranged  the  running  of  its 
trains  as  to  deprive  plaintiff  of  equal  facili- 
ties for  the  interchange  of  traffic,  though  no 
question  as  to  the  hours  of  running  trains 


*  Duty  of  carriers  to  receive  from  each  other 
under  the  act,  see  35  Am.  &  Eng.  R.  Cas.  650, 
abstr. 


34 


INTERSTATE  COMMERCE,  100-102. 


was  mafic  before  the  commission.  A'fW  York 
i'"  X.  A'.  Co.  V.  AVvi'  J'oX'ci^  /V.  /•:.  A'.  Co., 
53  .h)i.  il*-  A'//*,'.  A'.  Cas.  7,  50  /•'<■(/.  A'//.  867. 

Ill  such  case  llie  dcferidant  company 
(lainuMl  that  it  had  a  Irallu  contract  with 
anotiicr  (Dinpaiiy,  which  lorincd  an  exten- 
sion of  its  road,  and  that  it  liad  a  ri^dit 
therefore  to  divert  traffic  to  such  road  as 
against  plaiiitilfs  road.  The  evidence 
siiKued  that  defendant  was  a  separate  cor- 
poration, ownini,'  no  stock  in  tlie  favored 
cori)orati()n,  neither  having  built,  l)ou^»lit, 
leased,  nnr  having;  any  contract  for  the  man- 
agement of  its  business.  //<■/(/,  that  the 
claim  coulcl  not  be  sustained.  A't'to  York 
i}^  X.  a:  Co.  v.  Xi-ro  ]'ori-  &^  X.  E.  A'.  Co., 
S3  Am.  &*  Ell);,  li.  Cas.  7,  50  Fed.  Rep.  867, 

And  the  fact  that  both  defendant  and  the 
favored  company  were  members  of  a  ter- 
minal company,  a  mere  combination  of  car- 
riers, iiy  which  the  favored  road  was  per- 
mitted to  reach  New  York  city,  would  not 
relieve  defendant  of  its  duty  to  provide  for 
the  interchange  of  traffic  with  all  roads 
directly  connecting  with  it.  A'lW  York  &* 
N.  A'.  Co.  V.  Xi-tt<  York  &*  N.  E.  R.  Co.,  53 
..-/;//.  &^  Eiii;.  R.  Cas.  7,  50  /'',(/.  Rep.  867. 

100.  k«>ntii<k.y  Bri(l(;u  -  lti(;litN 
iiiid  diitios  of  nitul.s  (•nt.s.siii^'.— Plain- 
tifl  company  was  chartered  with  power  to 
build  a  bridge  and  to  operate  a  line  of  rail- 
way over  the  bridge,  and  approaches  there- 
to, and  to  connect  it  with  lines  of  railroad 
companies  by  necessary  terminal  facilities 
or  tracks.  It  owned  several  passenger  cars 
and  locomotives,  but  no  freight  cars,  but 
used  its  bridge  to  transport  trains  or  cars 
of  railroad  companies  from  one  road  to  an- 
other in  dififerent  states.  Held,  that  it  was 
engaged  as  a  common  carrier,  and  was  en- 
titled to  demand  of  railroads  intersecting 
its  tracks  equal  facilities  for  the  interchange 
of  traffic,  and  for  receiving,  forwarding,  and 
<lel i vering  the  same.  Kentucky  <Sr^  /.  Bridge 
Co.  V.  Louisville  <S^•  X.  R.  Co.,  2  Inl.  Com. 
Rep.  102,  2  Int.  Com.  Com.  162. 

Defendant  railroad  company  united  with 
other  companies  in  an  agreement  to  trans- 
fer all  their  business  across  a  river  by  a  cer- 
tain bridge,  according  to  certain  stipulated 
terms.  Subsequently  plaintifl's  bridge  was 
constructed  over  the  river  near  the  other, 
and  one  of  the  railroad  companies  to  the 
above  contract  transferred  its  business  to 
plaintiflf's  bridge;  whereupon  defendant 
company  refused  to  accept  the  freights  of 
such  company  which    had    been   received 


over  plaintiff's  bridge.  Held,  that  such  re- 
fusal was  a  vi<jlation  of  the  statute,  and 
therefore  unlawful.  Kentucky  &*  /.  Rrid^e 
Co.  V,  Louisville  &*  A'.  A'.  Co..  2  Int.  Com. 
Rep.  102,  2  ////.  Com.  Com.  162. 

if  the  company  which  transferred  its  busi- 
ness to  plaiiitilfs  bridge  violated  its  con- 
tract with  defendant  company  and  the  other 
bridge,  the  remedy  :  ast  be  the  ordinary 
remedy  for  breach  of  contract,  and  not  a 
refusal  to  extend  to  it  e(jual  facilities  for 
the  interchange  of  tralfic.  Kentucky  &^  I. 
Jiridi^e  Co.  v.  Louisville  is*  X.  R.  Co.,  2  Int. 
Com.  Rep.  102,  2  Int.  Com.  Com.  162. 

The  fact  that  a  railroad  company  has  been 
created  by  public  autliority  is  conclusive 
proof  thai  it  supplies  a  public  necessity;  and 
when  another  company  is  charged  with  dis- 
crimination in  not  supplying  it  with  equal 
facilities  for  the  interchange  of  traffic,  the 
defendant  company  cannot  set  upas  an  ex- 
cuse that  the  other  company  does  not  sup- 
ply any  public  necessity.  Kentucky  &^  I. 
liridge  Co.  v.  Louisville  &>  X.  R.  Co.,  2  /;//. 
Com.  Rep.  102,  2  /;//.  Com.  Com.  162. 

101.  Duty  ot'oiiu  curriur  to  receive 
cavH  <»!"  aiiotlier.— Theact  (section  3)  for- 
bidding "any  undue  or  unreasonable  prefer- 
ence "and  requiring  carriers  to  "afford  all 
reasonable,  proper,  and  equal  facilities  "  for 
the  exchange  of  traffic,  does  not  require  a 
railroad  company  to  receive  freight  in  the 
cars  in  which  it  is  tendered  by  a  connecting 
line,  and  transport  it  in  such  cars,  paying 
car  mileage  therefor,  when  it  has  cars  of  its 
own  availablcand  the  freight  will  not  be  in- 
jured by  the  transfer.  (Deady,  J.,  dissent- 
ing.) Oregon  S.  /..A-  U.  X.  R.  Co.  v.  Xort/t- 
ern  Pac.  R.  Co..  51  Am.&^Eiiff.  R.  Cas.  145, 
51  Fed.  Rep.  465.— Quoting  Kentucky  &  I. 
Bridge  Co.  v.  Louisville  &  N.  R.  Co.,  37 
Fed.  Rep.  624;Ciiicago&  A.  R.C0.7/.  Penn- 
sylvania R.  Co.,  I  Int.  Com.  Com.  86. 

A  stock  car  company  which  furnishes  to 
shippers  of  live  stock  a  special  improved 
car,  but  does  not  exchange  or  use  cars  of 
others,  is  not  "a  connecting  line"  within 
the  meaning  of  the  statute,  which  requires 
such  lines  to  furnish  equal  facilities  for  the 
interchange  of  traffic.  Burton  Stock  Car 
Co.  v.  Chicago,  B.  <S^  Q.  R.  Co.,  i  Int.  Com. 
Rep.  329,  I  Int.  Com.  Com.  132.— Appi.if.d 
IN  United  States  ?'.  Delaware,  L.  &  W.  R. 
Co.,  40  Fed.  Rep.  loi. 

102.  Duty  of  company  linviiif;  run- 
ning privileges  over  track  of  an- 
other.—Where  a  company  merely  has  a 


INTERSTAIE   COMMERCE,  lOa-lOU. 


85 


contract  for  the  use  of  u  i)art  of  the  track 
of  aiuitlier  company,  its  rigliis  pertniiiiiiK 
tlic'itioarc  (iL'tcrmincd  by  tlic  contract;  and 
noautliority  is  ){iven  the  commission  under 
the  statute  to  authorize  a  dilTerent  use  of 
till-  iraci<.  Alford  v.  t/iuiif^o.  A'.  I.  &^  P. 
I\.  Co.,  2  Inl.  Com,  AV/.  771,  3  Int.  Lorn, 
Com.  519. 

Wiicre  a  company  only  has  running  priv- 
ilL^es  over  a  part  of  tlie  track  of  an(Hher 
company  it  is  not  required  to  vi(jhite  its 
agreement  as  to  the  use  of  tlic  track  ;  and  it 
is  not  a  violation  of  the  statute  to  refuse  to 
receive  and  discharge  tralFic  on  tlie  track, 
where  tiic  sufliciency  of  the  local  service 
rendered  by  the  company  owning  tlie  track 
is  not  i|iiestioned.  Alford  v.  Chidij^o,  A'.  I. 
i^  I'.  A'.  Co.,  2  /;//.  Coi/i.  Kep.  771,  3  Int. 
Com.  Coin.  519. 

lO.'l.  Duty  ol'oiiv  eoiiiitaiiy  to  allow 
rival  boattt  to  laud  at  its  wharf. 
—A  company  that  operates  a  railwa"  and 
a  line  of  steamboats  connected  at  a  wharf, 
docs  not  violate  section  3  by  refusing  i  > 
ptriiiit  the  boats  of  a  competitor  to  land 
at  tiie  wharf.  Ihvaco  R.  &*  N.  Co.  v.  Oregon 
.V.  L.  Ssr'  U.  N.  R.  Co.,  57  Fed.  Kt-p.  673 ;  re- 
Vt-rsiili;;  51  /Vr/.  AV/.  61 1.  — DlSTINCUlSHING 
IJ.ixendale  v.  Great  Western  H.  Co.,  i  Ky.  k 
C  T.  Cas.  202 ;  Haxendale  v.  London  &  S. 
W.  K.  Co.,  I  Ry.  &  C.  T.  Cas.  231  ;  Parkin- 
son V.  Great  Western  R.  Co.,  i  Ry.  &  C.  T. 
Cas.  2.S0;  Indian  River  Steamboat  Co.  v. 
East  Coast  Transp.  Co.,  28  Fla.  387,  10  So. 
Rep.  480.  Following  Express  Cases,  117 
U.  S.  29,  6  Sup.  Ct.  Rep.  542,  628. 

The  above  section  contemplates  indepen- 
dent carriers  capable  of  mutual  relations, 
and  capable  of  being  objects  of  favor  or 
prejudice.  There  must  be  at  least  two 
, other  carriers  beside  the  ofTending  one. 
For  a  carrier  to  prefer  itself  in  its  own 
proper  business  is  not  the  discrimination 
which  is  condemned  by  the  statute. 
rhuaco  R.  <S-  N.  Co.  v.  Oregon  S.  L.  (S-  U.  N. 
A'.  Co.,  57  Fed.  Rep.  673;  reversing  51  Fed. 
Kep.  611. 

104.  Duty  of  receivers  to  grant 
equal  facilities  to  connecting  lines. 
—The  provisions  of  the  statute  requiring  all 
charges  for  the  transportation  of  passengers 
or  property,  or  for  receiving,  delivering, 
stoiina;,  or  handling  property,  to  be  reason- 
able and  just,  apply  to  railroad  receivers; 
and  it  is  unlawful  for  such  receiver  to  dis- 
criminate in  rates,  charges,  or  facilities,  as 
between  two  connecting   steamship  lines. 


///  re  Mallory,  30  Fed.  Rep,  663,  1  Int.  Com. 
Rip.  294. 
105.  Duty  as  to  through  rates.— 

Individual  shippers  cannot  require  one  car- 
rier to  ship  by  a  particular  route  beyond 
the  initial  carrier's  line  at  the  same  through 
rate  that  the  carrier  may  have  established 
with  other  connecting  lines;  and  the  .same 
rule  applies  as  to  connecting  interstate  car- 
riers. Kentucky  iS^*  /.  Bridge  Co,  v.  Louis- 
vi/lc  &^  N.  R.  Co.,  yj  Fed.  Rep.  567,  2  L.  R. 
A.  2S9,  2  Int.  Coin.  Rep.  '351. 

Uefendani  company  broke  up  an  arrange- 
ment which  had  c.xistetLfor  some  time  for 
thrcjugh  rates  and  through  billing  by  way  of 
complainant's  road,  and  gave  as  a  reason 
therefor  that  it  had  entered  into  a  new 
arrangement  with  another  road  over  which 
it  was  intended  to  take  the  business  which 
formerly  passed  over  plaintiff's  line.  No 
charge  was  made  that  complainant  company 
was  insolvent,  or  not  respoi  sible,  or  that 
the  arrangement  as  formerly  existing  was 
unfair  and  unequa'  as  between  the  parties. 
I/eld,  that  defendant  was  guilty  of  a  viola- 
tion of  section  3,  which  requires  equal  facili- 
ties for  the  interchangf.  of  traffic.  AW47  ]'ork 
&^  A\  R.  Co.  V.  A'eui  York  &^  A'.  K.  R.  Co., 
3  ////.  Coin.  Rep.  542,  4  Int  Com.  Com.  702. 

Defendant  company  gave  as  an  additional 
reason  for  breaking  up  such  arrangement 
for  through  billing  that  it  was  a  joint  owner 
with  the  road  which  it  had  selected  under 
the  new  arrangement,  of  a  terminal  com- 
pany, by  which  the  city  01  New  York  was 
reached.  Held,  that  this  was  not  sufTicient 
reason  for  breaking  up  the  arrangement, 
where  defendant  did  not  own  or  control  the 
line  of  the  favored  company.  A'ew  Yori-  ^^ 
N.  R.  Co.  V.  New  York  &•  N.  E.  R.  Co.,  3 
Int.  Com.  Rep.  542,  4  /;//.  Com.  Com.  702. 

lOO.  Duty  as  to  furnishing  yard 
and  depot  facilities. — It  is  the  duty  of  a 
carrier  of  live  stock  to  provide  proper  facil- 
ities for  receiving  and  discharging  such  live 
stock  free  from  all  charges  except  the  regu- 
lar transportation  charges;  and  it  cannot 
receive  and  discharge  such  stock  only  in 
yards  of  stock  companies  where  a  charge  is 
made  therefor.  Keith  v.  Kentucky  C.  R. 
Co.,  I  Int.  Com.  Rep.  601,  i  ////.  Com.  Com, 
189. 

A  railroad  company  cannot  give  one  stock 
yard  company  the  exclusive  handling  of  all 
live  stock  received  or  delivered  at  a  place 
where  complainants  have  established  yards, 
with  the  conveniences  of  receiving  and  hand- 


36 


INTERSTATE   COMMERCE,  107-110. 


lingstock.  Where  complainants  are  thus  pro- 
vided and  demand  the  right  to  receive  slock 
from  the  road,  their  demand  must  be  com- 
plied wi.h.  Keith  v.  Kentucky  C.  A\  Co.,  i 
Jut.  Com.  Rep.  6oi.  i  ////.  Com.  Com.  189. 

Where  a  railroad  company  has  supplied 
itself  with  all  necessary  stations  and  depot 
facilities  for  the  accommodation  of  its  busi- 
ness, it  is  under  no  further  duty  either  to 
the  public  or  connecting  roads  to  make  new- 
stations  and  depot  facilities,  th  >ugh  they 
might  be  for  the  convenience  of  the  public 
or  such  connecting  roads.  Kentucky  &^  I. 
Bridge  Co.  v.  Louisville  &•  N.  R.  Co.,  37 
Fed.  Rep.  567,  2  A.  R.  yh  289.  2  Int.  Com. 
Rep.  351. 

107.  Duty  ill  the  sale  of  through 
tickets— Control  of  agents.— The  act 
does  not  in  terms  require  one  company  to 
sell  through  tickets  over  another  road.  The 
right  to  sell  through  tickets  and  check 
through  baggage  arises  only  out  of  contract. 
Chicago  <S-  A.  R.  Co.  v.  Penmylvai  ia  Co.,  i 
////.  Com.  Rep.  357.  «  /«'•  ^^i"-  ^^■"-  ^6.— 
.Applied  in  Kentucky  &  I.  Bridge  Co.  v. 
Louisville  &  N.  R.  Co.,  37  Fed.  Rep.  567,  2 
L.  R.  A.  289,  2  Int.  Com.  Rep.  351. 

Railroad  companies  have  a  right  to  con- 
trol their  own  agents,  and  under  this  right 
may  prohibit  them  from  receiving  com- 
missions from  other  roads  fo.  the  sale  of 
tiirough  tickets,  and  from  selling  tickets 
over  roads  whiah  insist  on  paying  such  com- 
missions. Chicago  6^  A.  R.  Co.  v.  Pennsyl- 
vania Co.,  I  Int.  Com.  Rep.  357,  i  Int.  Com. 
Com.  86. — '.  .  OTED  IN  Oregon  S.  L.  &  U. 
N.  R.  Co.  V.  is  jrthern  Pac.  R.  Co.,  51  Am.  & 
Eng.  R.  Cas.  145,  51  Fed.  Rep.  465. 

A  regulation  by  a  company  prohibiting 
its  agents  from  selling  tickets  over  another 
road  which  insists  on  paying  the  agents  a 
commission,  and  from  receiving  such  com- 
mission, does  not  violate  section  3,  which 
requires  connecting  carriers  to  afTord  all 
reasonable,  proper,  and  equal  facilities  for 
the  interchange  of  traffic.  Chicago  &•  A. 
R.  Co.  V.  Pennsylvania  Co.,  i  Int.  Com.  Rep. 
357,  I  Int.  Com.  Com.  86. 

108.  Enforcing  sec.  3  hy  injunc- 
tion—Federal  question. — A  suit  in  eq- 
uity to  enforce  section  3  by  injunction,  to 
compel  the  defendant  company  to  receive 
and  deliver  the  plaintiff's  interstate  freight, 
involves  a  federal  question,  which  gives  a 
federal  court  jurisdiction  of  the  whole  case, 
which  may  involve  ordinary  remedies,  cog- 
nizable by  state  courts.     Toledo,  A.  A.  <S- 


A'.  M.  R.  Co.  v.  Pennsylvania  Co.,  53  Am. 
&o  Eng.  R.  Cas.  293,  54  J'<-'ti-  ^^^p.  740.— 
FuLLowi.NG  Osborn  v.  Bank  of  U.  S.,  9 
Wlieal.  (U.  S.)  ll'6. 

The  mandatory  provisions  of  th'^  act 
which  apply  to  railroad  corporations  apply 
with  equal  force  to  their  officers  and  em- 
ployes, and  an  injunction  to  compel  a  r.ul- 
road  company  to  comply  wiili  the  provisions 
of  such  act  applies  to  the  olikers  and  em- 
jiuyes  of  the  corporations,  and  takes  elleci 
a.';  to  tiiem  as  soon  as  they  are  noiihed 
tlieieof.  It  is  not  necessary  that  they 
should  DC  made  parties  in  order  to  bind 
them  by  the  writ  of  injunction.  Toledo,  A. 
A.  «S^•  iV.  M.  R.  Co.  V.  Pennsylvania  Co.,  53 
Am.  &•  Eng.  R.  Cas.  293,  54  led.  Rep.  746. 

8.  Long  and  Short  Hauls. 

109.  Generally.*— There  is  nothing  in 
the  statute  preventing  the  making  of  the 
aggregate  charge  less  in  proportion  for  a 
long  than  for  a  short  haul,  or  less  per  hun- 
dred as  the  distance  increases.  Farrar  v. 
East  Tenn.,  V.  <S^•  G.  R.  Co.,  I  Int.  Com. 
Rep.  764,  I  Int.  Cviii.  Com.  480. 

Joint  rates  for  long  hauls  should  be  lower 
in  proportion  than  rates  on  short  hauls. 
Farrar  v.  East  Tenn.,  V.  &•  G.  R.  Co.,  i 
////.  Com.  Rep,  764,  i  Int.  Com.  Com.  480. 

If  railroad  companies  permit  a  "  dispatch" 
company  to  use  their  tracks  they  are  re- 
sponsible for  the  long  haul  rates  made. 
Boston  &"  A.  R.  Co.  v.  Boston  dr'  L.  R.  Co., 
I  Int.  Com.  Rep.  571,  1  Int.  Com.  Cow.  158. 

A  charge  of  violation  of  the  long  and 
short  haul  clause  of  section  4  of  the  act  is 
not  made  out  by  showing  that  a  carrier, 
when  called  on  for  through  rates,  names 
rates  greater  for  the  shorter  distance  and 
receives  the  same  amount  for  itself  and  its 
connections,  when  it  appears  that  on  its 
own  line  the  charges  are  greater  for  the 
longer  distance,  and  the  through  charges 
by  the  shorter  line  are  only  made  greater 
by  the  fact  that  the  connecting  road,  which 
is  the  shorter  line,  makes  higher  rates  than 
the  road  which  has  the  longer  line.  Allen 
v.  Louisville,  A^  A.  &*  C.  R.  Co.,  i  Int.  Com. 
Rep.  621,  I  fut.  Com.  Com.  iqo. 

110.  Limitations  of  the  long  and 
short  haul  clause.- The  provision  of 
section  4  prohibiting  a  greater  charge  for  a 


*  Lonp  and  short  haul  clause  construed,  see 
note,  12  L.  R.  A.  436.  See  also  33  Am.  &  Eng. 
R.  Cas.  670,  aistr. 


INTERSTATE   COMMERCE,  111,112. 


37 


shorter  than  for  a  longer  distance,  over  the 
same  line,  in  the  same  direction,  the  shorter 
being  included  within  the  longer,  only  ap- 
plies to  cases  where  circumstances  and  con- 
ditions of  transportation  are  substantially 
similar.  In  re  Southern  R.  6-  .V.  Assoc,  i 
/;.'/.  Com.  Rep.  278,  i  Int.  Com.  Com.  31. 

Tlie  phrase  "  under  substantially  similar 
circumstances,"  as  used  in  sections  2  and  4, 
means  the  same  thing;  and  carriers  are  re- 
quired to  judge  ill  the  first  instance  whether 
the  circumstances  are  such  as  to  permit  a 
greater  charge  for  a  shorter  distance.  In 
re  Soiilltern  R.  Sf  S.  Assoc,  i  Int.  Com, 
Rep.  278,  I  Int.  Com.  Com.  31. 

But  tlie  judgment  of  the  carrier  is  in  all 
cases  subject  to  the  review  of  tlie  commis- 
sion and  of  the  courts.  And  where  a  car- 
rier is  charged  with  violating  section  4,  re- 
lating to  long  and  short  hauls,  tlie  burden 
is  on  it  to  show  tliat  the  circuiiisiances  and 
conditions  are  dissimilar.  In  re  Southern  R. 
&*S.  Assoc,  I  Int.  Com.  Rep.  278,  i  Int.  Com. 
Com.  31. 

The  provisions  of  section  i,  providing 
that  charges  sliall  be  "  reasonable  and  just," 
and  tluit  of  section  2,  forbidding  "  unjust 
discrimination,"  apply  when  exceptional 
charges  are  made  under  section  4,  relating 
to  long  and  short  hauls.  In  re  Southern  R. 
&•  S.  Assoc,  I  Int.  Com.  Rep.  278,  i  Int. 
Com.  Com.  31. 

Wliere  a  carrier  is  charged  with  receiving 
a  greater  charge  in  the  aggregate  for  a 
shorter  than  for  a  longer  distance  over  the 
same  line,  it  is  not  a  sufTicicnf  justification 
to  show  that  the  traffic  subject  to  the 
greater  charge  is  local,  and  that  which  is 
given  the  more  favorable  charge  is  not.  In 
re  Southern  R.  &*  S.  Assoc,  i  Int.  Com. 
/.'(/.  278,  I  Int.  Com.  Com.  31. — Quoted  in 
Interstate  Commerce  Commission  v.  Atchi- 
son, T.  &  S.  F.  R.  Co.,  so  Am.  &  Eng.  R. 
Cas.  93,  50  Fed.  Rep.  29' 

Neither  is  it  a  sufRtujnt  justification  to 
show  that  the  short  haul  traffic  is  more  ex- 
pensive to  the  carrier,  unless  it  be  excep- 
tionally so,  nor  the  long  haul  traffic  excep- 
tionally inexpensive.  In  re  Southern  R.  fi-* 
S.  Assoc,  I  Int.  Com.  Rep.  278,  i  Int.  Com. 
Com.  31. 

Neither  is  such  discrimination  justified 
because  the  lesser  charge  on  the  longer 
haul  was  for  the  purpose  of  encouraging 
manufactures  or  some  other  industry,  or 
designed  to  build  up  business  or  trade  cen- 
tres, or  merely  a  continuation  of  favorable 


rates  under  which  such  trade  centres  had 
been  built  up.  In  re  Southern  R.  <S»  S, 
Assoc,  I  Int.  Com.  Rep.  278,  i  Int.  Com.  Com. 

3'- 

The  fact  that  long  haul  traffic  will  only 
bear  certain  rates  is  no  reason  for  carrying 
it  for  less  than  cost  at  the  expense  of  other 
traffic.  In  re  Southern  R.  dw  S.  Assoc,  i 
Int.  Com.  Rep.  278,  i  Int.  Com.  Com.  31. 

111.  Itatcs  to  tlitt'ereut  places 
should  be  relatively  just  ami  fair.— 
The  relative  fairness  of  a  rate  is  not  deter- 
mined alone  by  its  being  low.  Thus  a  low 
rate  to  one  place  may  not  be  just  when  a 
still  lower  rate  is  given  to  another  place. 
In  re  Chicago,  St.  P.  &^  K.  C.  R.  Co.,  2  Int. 
Com.  Rep.  137,  2  Int.  Com.  Com.  231. 

In  determining  whether  a  rate  to  one 
place  is  just  it  must  be  compared  with 
rates  to  other  localities.  In  re  Chicago,  St. 
P.  &'  K.  C.  R.  Co.,  2  Int.  Com.  Rep.  137,  2 
Int.  Com.  Com.  231. 

The  purpose  of  the  statute  to  prevent 
unjust  discrimination  as  between  localities 
would  be  defeated  if  one  carrier,  by  making 
unreasonably  low  rates  to  a  certain  place, 
would  thereby  entitle  competing  carriers  to 
make  greater  charges  upon  short  hauls  to 
other  stations  than  are  made  over  the  same 
line  to  the  locality  thus  favored.  In  re 
Chicago,  St.  P.  &•  A'.  C".  R.  Co.,  2  Int.  Com. 
Rep.  137,  2  Int.  Com.  Com.  231. 

112.  Rates  as  aft'eetcd  by  circuni- 
staiice.s  and  couditlotis.*— A  greater 
charge  for  a  shorter  haul  than  for  a  longer 
haul  is  permissible  under  section  4,  if  the 
circumstances  and  conditions  are  not  in 
fact  substantially  similar,  and  a  railroad 
company  may  determine  this  question  for 
itself,  subject  to  liability  for  violating  the 
act  if,  on  investigation,  the  fact  be  found 
against  it.  To  render  such  a  charge  lawful 
it  is  not  necessary  first  to  obtain  a  ruling 
from  the  commission.  Inters/ate  Commerce 
Commision  v.  Atchison,  T.  &*  S.  F.  R.  Co., 
50  Am.  <S-«  Eng.  R.  Cas.  93,  loFed.  Rep, 
295,  \  Int.  Com.  Rep.  323;  appeal  dismissed 
in  149  U.  S.  264,  13  Sup.  Ct.  Rep.  837. — 
Quoting  In  re  Southern  R.  &  S.  Assoc'.,  i 
Int.  Com.  Rep.  280. — Northivester-i  loiva  G, 
&*  S.  Shippers  Assoc,  v.  Chicago  <S-»  N.  IV. 
R.  Co.,  2  Int.  Com.  Rep.  431,  2  Int.  Com.  Com. 


*When  competition  justifies  greater  charge 
for  shorter  haul.  "Similar  circumstances  and 
conditions,"  see  note,  54  Am.  &  Eng.  R.  Cas. 

397- 


I 


.,„,_,..,-.| 


38 


INTERSTATE   COMMERCE,  113. 


604.     Trammellv.    Clyde  Steamship   Co.,  5 
Int.  Com.  Com.  324,  4  Int.  Com.  Rep.  120. 

Where  the  circumstances  and  conditions 
are  similar  tiie  prohibition  attaches ;  and 
where  it  is  difficult  to  point  out  clearly  the 
circumstance  or  condition  which  produces 
dissimilarity  the  doubt  should  go  in  favor 
of  the  object  of  the  law,  and  the  circum- 
stances and  conditions  should  be  taken  as 
substantially  similar.  Where  the  circum- 
stances and  conditions  are  similar,  or  sub- 
stantially similar,  and  the  result  to  the  car- 
rier is  injurious,  relief  can  be  liad  only 
through  the  commission.  Missouri  Pac.  R, 
Co.  V.  Texas  &•  P.  R.  Co.,  31  Am.  (S^•  li/ig^. 
R.  Cas.  76,  31  Fed.  Rep.  862.— Followed 
IN  Pittsburgh.  C,  C.  &  St.  L.  R.  Co.  v. 
Racer,  5  Ind.  App.  209.  Quoted  in  Inter- 
state Commerce  Commission  v.  Cincinnati, 
N.  O.  &  T.  P.  R.  Co.,  56  Fed.  Rep.  925. 

The  general  rule  contemplated  by  the 
statute  of  equitably  graduated  charges  on 
like  traffic  witli  reasonable  reference  to  tlie 
amount  of  the  service,  is  just  in  itself,  and 
commonly  most  beneficial  both  to  the  car- 
riers and  to  the  public,  and  is  only  to  be 
departed  from  when  justified  by  exceptional 
conditions,  and  in  such  instances  no  longer 
tlian  the  conditions  require.  Lehmann  v. 
Southern  Pac.  Co.,  3  Int.  Com.  Rep.  80,  4  Int. 
Coin.  Com.  i. 

The  circumstances  and  conditions  which 
would  justify  a  lower  rate  for  the  greater 
distance  than  for  the  shorter  relate  to  the 
nature  and  character  of  the  transportation 
service  over  the  same  line  to  the  longer  and 
shorter  distance  points.  James  &^  M. 
Puj(^y  Co.  v.  Cincinnati,  N.  0.  (S^•  T.  P.  R. 
Co.,  3  ////.  Com.  Rep.  682,  4  Int.  Com.  Com, 
744- 

Mere  competition  between  carriers  does 
not  create  such  circumstances  and  con- 
ditions as  will  justify  them,  in  the  first  in- 
stance, in  determining  whether  thfy  may 
violate  section  4  of  the  statute,  in  charging 
more  for  a  shorter  than  for  a  longer  haul. 
Trammell  v.  Clyde  Steamship  Co.,  5  Int. 
Com.  Com.  324,  4  Int.  Com.  Rep.  1 20. 

Where  a  carrier  sets  out  in  a  complaint  a 
dissimilarity  in  circumstances  and  con- 
ditions, which,  it  is  claimed,  justifies  a 
greater  charge  for  short  hauls,  under  sec- 
tion 4  of  the  statute,  it  is  concluded  by  the 
averments,  and  must  affirmatively  show  that 
the  circumstances  and  conditions  are  sub- 
stantially dissimilar.  But  if  the  carrier 
only  applies  for    relief  as  provided  in  the 


latter  part  of  the  section,  then  the  above 
rule  of  evidence  does  not  apply,  and  every 
material  reason  in  its  favor  may  be  shown 
to  tlie  commission.  Trammell  v.  Clyde 
Steamship  Co.,  5  Int.  Com.  Com.  324,  4  /;//. 
Com.  Rep.  1 20. 

When  rates  from  any  cause  are  made 
greater  for  shorter  than  for  longer  distances 
the  difference  between  such  rates  inust  in 
no  instance  be  unreasonable.  Gerke  Brew- 
ing Co.  V.  Louisville  &>  K.  R.  Co.,  5  Int. 
Com.  Com.  596,  4  Int.  Com.  Rep.  267. 

1  lit.  Kates  ns  aft'ected  by  dis- 
tance.— Ordinarily  there  is  no  better  way 
of  determining  what  is  a  reasonable  rate 
than  distance,  though  not  always  control- 
ling ;  and  where  a  rate  charged  for  carry- 
ing freight  from  a  certain  territory  over  one 
road  is  considerably  higher  than  the  rate 
charged  by  another  road  to  the  same  place, 
the  higher  rate  will  be  deemed  excessive. 
James  v.  East  Tenn.,  V.  &>  G.  R.  Co.,  2 
Int.  Com.  Rep.  609,  3  /;//.  Com.  Com.  225. 

It  is  lawful  for  carriers  to  accept  the  same 
aggregate  charge  for  long  distances  as  for 
shorter  ones,  so  long  as  it  does  not  subject 
any  person  or  kind  of  traffic  "  to  any  undue 
or  unreasonable  prejudice  or  disadvantage." 
James  <S^  71/.  Buggy  Co.  v.  Cincinnati,  N. 
O.  &-  T.  P.  R.  Co^,  3  Int.  Com.  Rep.  682,  4 
Int.  Com.  Com.  744. 

Under  like  conditions  freight  can  be 
profitably  carried  long  distances  at  rates 
proportionately  lower  than  short  distances. 
The  movement  of  freight  short  distances  is 
necessarily  by  local  trains  with  frequent 
stops,  and  is  much  more  expensive  than 
when  moved  by  through  trains  over  long 
distances.  The  rule  of  equal  mileage  rates 
would  often  prevent  legitimate  competition, 
and  frequently  give  a  monopoly  in  trans- 
portation to  the  best  and  shortest  road. 
A'ew  Orleans  Cotton  Exch.  v.  Cincinnati,  A. 
O.  &-  T.  P.  R.  Co.,  2  Int.  Com.  Rep.  289,  2 
Int.  Com.  Com.  375. 

Combined  railroad  and  water  competition 
in  the  carrying  of  lumber  does  not  justify  a 
greater  charge  for  a  shorter  distance,  where 
the  carrier  maintains  the  short  distance 
rate,  where  the  competition  is  more  con- 
trolling tiian  to  the  long  distance.  Janus 
V.  East  Tenn.,  V.  iSr^  G.  R.  Co.,  2  Int.  Com. 
Rep.  609,  3  ////.  Com.  Com.  225. 

Nor  does  the  fact  that  the  lumber  has 
paid  a  local  rate  over  defendant's  road,  or 
other  roads,  to  the  longer  distance,  justify  a 
greater  charge  for  the  shorter  distance  ;  nor 


is  such  char) 
cars  on  a  cor 
one  way  to 
profitable  rei 
had.  James 
2  Int.  Com.  J 

114 

Ij.*— Compe 

place  may  ju< 

for  a  long  hi 

eluded  thereii 

4-    Ex  parte 

3 '    Fed.   Rep. 

Koehler,  n  £ 

F.    R.    Co.   V. 

iioU.  S.  683.- 

/i'.  Co.,  I  //,/. 

Com.  236. 

The    exister 

which  is  of  co 

traffic  importa 

tlie    dissimilar 

tions,  entitling 

the  longer  tha 

the  same  line 

shorter  being  it 

following  cases 

is  with  carriers 

ject  to  the  pro 

when    the  comj 

other  railroads ' 

provisions  of   tl 

peculiar  cases  o] 

roads    which    al 

wlien.  a  strict 

rule  of  the  stati 

'esitiniate  compl 

^  Steamship  A\ 

Int.  Com.  Com. 

'"  cer'ain  cas 
''"°  I    ints  thar 
^^  J      ^fied;    b^ 
tween    \c  long 
is  vtry  ^rreat,   t| 
that  tlie  lesser 
'ii'<-'.  or  else  the 
ranted   return    fJ 
Tlie  above  princj 
charjred   seventy, 
for  the  short  dil 
cents  per  hundre| 
longer,  which  wa 
"ve  point,     c/ial 

*  Competition  jJ 
'han  for  short  hauj 
Cas.  60. 


INTERSTATE   COMMERCE,  114,  115. 


39 


is  such  charge  justified  by  the  fact  that  the 
cars  on  a  connecting  road  carried  machinery 
one  way  to  the  long  distance  point,  when 
profitable  return  loads  could  not  always  be 
had.  Jatiies  v.  East  Tenn.,  V.  &*  G.  /^.  Co., 
2  />!i.  Cow.  Rep.  609,  3  ////.  Com.  Com.  225. 

114.  by  com  petition,  general- 
ly.*—Competition  to  or  from  a  particular 
place  may  justify  a  carrier  in  charj^ing  less 
for  a  long  haul  than  for  a  shorter  one  in- 
cluded therein,  without  violation  of  section 
4.  Ex  part^  Koehler,  1 2  Saw^.  ( U.  S.)  446, 
31  Fed.  Rep.  315.— Reviewing  Ex  parte 
Koehler,  11  Sawy.  191;  Atchison,  T,  &  S. 
F.  R.  Co.  V.  Denver  &  N.  O.  R.  Co., 
no  U.  S.  t^-^i.-rHariveU  v.  Columbus  &^  JV. 
A'.  Co.,  I  Int.  Com.  Rep.  631,  i  /«/.  Com. 
Com.  236. 

The  existence  of  actual  competition, 
wiiich  is  of  controlling  force  in  respect  to 
traffic  important  in  amount,  may  make  out 
tlie  dissimilar  circumstances  and  condi- 
tions, entitling  the  carrier  to  charge  less  for 
the  longer  than  for  the  shorter  haul  over 
the  same  line  in  tiie  same  direction,  the 
shorter  being  included  in  the  longer,  in  the 
following  cases  :  (i)  When  the  competition 
is  with  carriers  by  water  whicii  are  not  sub- 
ject to  the  provisions  of  the  statute;  (2) 
when  the  competition  is  with  foreign  or 
other  railroads  which  are  not  subject  to  the 
provisions  of  the  statute ;  (3)  in  rare  and 
peculiar  cases  of  competition  between  rail- 
roads wliich  are  subject  to  the  statute, 
wliciv  a  strict  application  of  the  general 
riile  of  the  statute  would  be  destructive  of 
leii;itiniate  competition.  /«  ;■<■  Sontlurn  R. 
<1~  Sttams/tip  Assoc,  i  ////.  Com.  Rep.  278,  i 
I  III.  Com.  Com.  31. 

In  cer'uin  cases  lower  rates  to  competi- 
tiv  r  mts  than  to  shorter  distances  may 
be  J  ified ;  but  when  the  disparity  be- 
tween "\e  long  and  short  distance  charges 
is  vtry  great,  the  inference  is  irresistible 
that  tlie  lesser  rate  must  be  unremunera- 
tive,  or  else  the  larger  rate  gives  an  unwar- 
ranted return  for  tiie  services  rendered. 
The  above  principle  applied  where  a  carrier 
charj;cd  seventy-three  cents  per  hundred 
for  tlie  short  distance  and  only  forty-two 
cents  per  hundred  for  a  distance  150  miles 
longer,  which  was  claimed  to  be  a  competi- 
tive point.     Chattiifiooga  Board  of  Trade  v. 


•Competition  justifies  lower  rates  for  long 
than  for  short  haul,  see  note,  29  Am.  &  Eng.  R. 
Cas.  60. 


East  Tenn.,  V.  &*  G.  R.  Co.,  5  Int.  Com. 
Com.  546,  4  Int.  Com.  Rep.  213. 

Competition  with  carriers  not  subject  to 
the  statute  is  based  n\)on  natural  causes 
and  plain  conditions,  but  the  legitimate 
force  of  competition  with  carriers  subject 
to  the  act  depends  upon  compliance  with 
the  law  by  each  of  the  competitors  and  the 
special  circumstances  and  primarily  indefi- 
nite conditions  in  each  particular  case. 
Gerke  Brei.ui>ig  Co.  v.  Louisville  &^  N.  R, 
Co.,  5  /;//.  Com.  Com.  596,  4  Int.  Com.  Rep. 
267. 

]  15. by  land  competition. — The 

fact  that  one  company  makes  an  unreason- 
ably low  rate  does  not  authorize  a  rival 
company,  running  between  the  same  points, 
to  make  a  greater  charge  for  a  short  haul 
to  an  intermediate  point  than  it  does  to  the 
terminal  point.  In  re  Chicago,  St.  P.  &»  A' 
C.  R.  Co.,  2  //tt.  Com.  Rep.  137,  2  /«/.  Com. 
Com.  231. 

Competition  between  roads  alone  will  not 
make  out  the  "  dissimilar  circumstances 
and  conditions  "  contemplated  by  the  stat- 
ute, which  will  justify  a  greater  charge  for 
the  shorter  haul,  /n  re  Chicago,  St.  P.  &* 
K.  C.  R.  Co.,  2  ////.  Com.  Rep.  137,  2  Int. 
Com.  Com.  231. 

Wiiere  a  company  makes  a  certain  charge 
to  a  given  point,  and  the  same  charge  to 
oth(  r  places  only  from  a  third  to  two  thirds 
of  the  san)e  distance,  the  charges  to  the 
shorter  points  are  presumptively  unjust 
and  illegal.  In  re  Chicago,  St.  P.  &^  A.  C, 
R.  Co.,  2  ////.  Com.  Rep.  137,  2  ////.  Com. 
Com.  231. 

The  rule  expressed  by  tlie  fourth  section 
that  distance  shall  ordinarily  limit  the  ad- 
justment of  rates  is  not  rendered  ino[)era- 
tive  by  the  existence  at  one  point  of  con- 
verging lines  subject  to  the  act,  for  the  law 
applies  to  each  of  these  lines,  anti  neither 
can  put  in  rates  to  that  point  which  are 
lower  than  shorter  distance  charges  on  its 
line  until  upon  a  showing  of  special  consid- 
erations, grounded  in  justice  to  its  patrons 
and  itself,  it  obtains  permission  from  the 
regulating  authority  so  to  do.  Thi<  princi- 
ple applies  both  to  lines  between  the  same 
points,  and  to  lines  reachintr  the  same  des- 
tination from  different  points  of  consign- 
ment. Gerke  Bre^ving  Co.  v.  Louis7>ille  Sr* 
N.  R.  Co.,  5  Int.  Com.  Com.  596,  4  ////.  Com. 
Rep.  267. 

The  circumstances  and  conditions  sur- 
rounding the  shipment  of   freight  to  Los 


40 


INTERSTATE   COMMERCE,  llO-liS. 


I 

■Ml 


Angeles,  Cal.,  a  point  to  which  there  is  ac- 
tive competition  between  several  transconti- 
nental railway  lines,  direct  or  partly  by 
water,  as  well  as  by  the  all  water  route, 
from  points  east  of  the  Missouri,  are  sub- 
stantially  dissimilar  from  those  attending 
shipments  to  San  Bernardino,  an  interme- 
diate non-competitive  point,  sixty  miles  in- 
land from  Los  Angeles,  on  one  of  the  com- 
peting railroads;  accordingly,  a  through 
rate  to  Los  Angeles,  lower  than  that  to  San 
Bernardino,  is  justified.  Interstate  (Com- 
merce Commission  v.  Atchison,  T.  Gf  S.  F. 
A\  Co.,  50  Am.  &■•  Eng.  R.  Cas.  93,  50  /W. 
Re/>.  295,  4  Int.  Com.  Rep.  323. 

A  higher  charge  from  San  Francisco  to 
Denver  than  to  Kansas  City,  a  greater  dis- 
tance, cannot  be  justified  on  the  ground  of 
competition  over  the  Canadian  roads,  as 
such  roads  are  now  working  under  an 
agreement  as  to  rates  with  the  roads  of  the 
United  States  at  points  where  they  for- 
merly competed.  Martin  v.  Southern  Pac. 
Co.,  2  Int.  Com.  Rep.  i,  2  Int.  Com.  Com.  i. 

110.  by  water  coinpctitioii. — 

Actual  water  competition  of  controlling 
force  may  justify  a  lower  charge  for  a  longer 
distance  tlian  for  a  shorter  distance  in- 
cluded therein  for  the  same  kind  of  traffic. 
Lehmann  v.  Southern  Pac.  Co.,  3  ////.  Com. 
Rep.  80,  4  Int.  Com.  Com.  i. 

But  the  reduced  rates  to  the  competing 
points  must  not  be  so  low  as  to  leave  no  rev- 
enue from  the  traffic ;  and  the  higher  rates 
to  non-compeiiiive  points  must  be  reason- 
able in  themselves,  and  relatively  reasonable 
when  compared  with  the  competitive  points. 
Lehmann  v.  Southern  Pac.  Co.,  3  Int.  Com. 
Rep.  80,  4  Int.  Com.  Com.  i. 

A  lower  rate  to  tlie  terminus  of  a  through 
route  that  is  subject  to  actual  water  compe- 
tition, does  not  amount  to  unjust  discrim- 
ination, as  against  a  shorter  route  not  on 
the  through  route,  but  situated  on  the  line 
of  a  branch  road.  Lehmann  v.  Southern 
Pac.  Co.,  3  Int.  Com.  Rep.  So,  4  Int.  Com. 
Com.  I. 

Possible  water  competition  is  not  suffi- 
cient to  justify  a  greater  charge  for  the 
shorter  distance.  It  must  be  actual.  San 
Bernardino  Hoard  of  Trade  v.  Atchison,  T. 
&'  S.  F  R.  Co.,  3  Int.  Com.  Rep.  138,  4  Int. 
Com.  Com.  104. 

To  justify  a  greater  charge  for  a  shorter 
distance  on  account  of  water  competition, 
it  must  appear  that  such  competition  would 
secure  the  freight  and  carry  it  to  its  desti- 


nation by  water,  if  the  lower  rate  was  not 
given.  James  &>  M.  Buggy  Co.  v.  Cincin- 
nati, A'.  O.  &>  T.  P.  R.  Co.,  3  Int.  Com.  Rep. 
682,  4  Int.  Com.  Com.  744. 

The  presence  of  combined  rail  and  water 
competition  at  a  longer  distance  point  does 
not  justify  a  greater  charge  for  a  shorter 
distance  while  the  carrier  maintains  the 
shorter  distance  rate,  where  such  competi- 
tion is  of  greater  force  and  more  c(Jiitrolling 
than  at  the  longer  distance  point.  James  v. 
East  Tenn.,  V.  &^  G.  R.  Co.,  2  Int.  Com. 
Rep.  609,  3  Int.  Com.  Com.  225. 

117.  Kates  on  main  line  as  nlt'eetcd 
by  competition  on  l>ranclie.s.— Where 
a  company  maintains  two  routes  between 
designated  points  formed  by  its  main  line 
and  different  branch  lines,  a  greater  charge 
for  a  shorter  tlian  for  a  longer  distance,  the 
shorter  being  included  in  the  longer,  is  a 
violation  of  section  4  of  the  act,  and  unlaw- 
ful. Northwestern  Io7va  G.  6^  S.  Shippers 
Assoc.  V.  Chicago  '&*  N.  W.  R.  Co.,  2  Int. 
Com.  Rep.  431,  2  Int.  Com.  Com.  604. 

liut  where  the  branch  lines  of  such  com- 
pany are  crossed  by  the  main  line  of  an- 
other road,  and  there  is  competition  be- 
tween the  two  companies  from  the  place  of 
crossing,  the  charges  on  the  branches  do 
not  establish  a  standard  of  rates  for  like 
distances  on  other  branches  where  no  com- 
petition exists.  North-western  Iowa  G,  &^ 
S.  Shippers'  Assoc,  v.  Chicago  &•  N.  IV.  R. 
Co.,  2  Int.  Com.  Rep.  431,  2  Int.  Com.  Com. 
604. 

A  departure  from  the  rule  of  equal  mile- 
age rates  as  applied  to  the  several  branches 
of  a  road  is  not  conclusive  that  such  rates 
are  unlawful ;  but  the  burden  is  on  the  com- 
pany making  such  departure  to  show  its 
rates  to  be  reasonable,  when  disputed. 
Northwestern  Iowa  G  &'  S.  Shippers  Assoc. 
v.  Chicago  &>  N.  IV.  R.  Co.,  2  Int.  Com.  Rep. 
431,  2  Int.  Com.  Com.  604. 

Where  it  appears  that  other  roads  have 
no  advantages  over  the  defendant  company 
which  enable  them  to  force  rates  upon  it, 
proof  that  defendant  has  long  continued  a 
rate  without  competition,  except  on  equal 
terms,  is  proof  that  the  rate  is  not  unrea- 
sonably low.  Northwestern  lo^va  G.  &^  S. 
Ship  tiers  Assoc,  v.  Chicago  Sf'  N.  IV.  R.  Co., 
2  /;//.  Com.  Rep.  431,  2  /;//.  Com.  Com.  604. 

118.  Efteet  of  competition  on  pas- 
sen{;er  rates.— If  a  reduction  in  passen- 
ger rates  be  made  between  competing 
points,  the  rates  must  also  be  reduced  be- 


tween intei 
be  a  violai 
In  re  Passt 
Rep.  340,  2 
No  com|: 
ing  from  v 
justify  carr 
re  Passeng, 


INTERSTATE  COMMERCE,  110-121. 


41 


tween  intermediate  points;  otherwise  it  will 
he  a  violation  of  section  4  of  the  statute. 
In  re  Passenger  T.  &•  JC.  Wars,  2  /;//.  Com. 
Rep.  340,  2  Int.  Com.  Com.  5 1 3. 

No  competition  in  passenger  rates  result- 
inj?  from  what  is  called  a  "  rate  war  "  will 
justify  carriers  in  violating  the  statute.  In 
re  Passenger  T.  &*  R.  Wars,  2  Int.  Com. 
Kep.  340,  2  Int.  Com.  Com.  513. 

IIU.  Itates  iruiu  Pueiflc  coast  to 
St.  Paul  and  Fargo. — Such  competition 
as  may  exist  by  reason  of  the  Canadian 
Pacific  Railway  or  by  water  by  the  way  of 
Ciipe  Horn,  will  not  justify  carriers  in  charg- 
ing more  on  refined  sugar  from  San  Fran- 
cisco to  Fargo,  N.  Dak.,  than  to  St.  Paul, 
Minn.,  a  greater  distance.  Raworth  v 
Northern  Pac.  R.  Co.,  3  Int.  Com.  Rep.  857, 
5  Int.  Com.  Com.  234. 

St.  Paul  possesses  natural  advantages 
from  its  location  in  being  able  to  get  low 
rates  on  sugar  from  the  Atlantic  coast, 
which  justifies  a  low  rate  from  the  Pacific 
coast,  but  not  lower  than  should  be  awarded 
to  Fargo,  a  shorter  distance.  Raworth  v. 
Northern  Pac.  R.  Co.,  3  Int.  Com.  Rep.  857, 
5  Int.  Com.  Com.  234. 

The  unjust  discrimination  denounced  by 
section  2  of  the  act  may  apply  where  the 
long  and  short  haul  clause  of  section  4  is 
violated  ;  and  the  right  to  make  different 
rates  to  different  places  does  not  justify  a 
ditfercnce  so  great  as  to  amount  to  unjust 
discrimination.  Raworth  v.  Northern  Pac. 
R.  Co.,  3  Int.  Com.  Rep.  857,  5  Int.  Com. 
Com.  234. 

The  fact  that  the  rates  to  St.  Paul  might 
be  raised  without  losing  the  traffic,  and  that 
both  the  rates  to  St.  Paul  and  Fargo  are 
not  unreasonable  in  themselves,  does  not 
justify  a  discrimination  against  the  latter 
place,  which  would  amount  to  unjust  dis- 
ciimiriaiion.  Raworth  v.  Northern  Pac.  R. 
Co..->)  Int.  Com.  Rep.  857,  5  /«.',  Com.  Com.  234. 

1 20. from  8t.  Lotiis  to  Omaha 

and  Lincoln,  Neb. — Lincoln,  Neb.,  is 
four  miles  nearer  St.  Louis  over  defendant's 
road  than  is  Oni^ha,  but  a  higher  rate  is 
charged  from  St.  Louis  to  Lincoln  than  to 
Omaha.  Defendant  undertook  to  justify 
this  difference  on  the  ground  that  Lincoln 
is  on  a  branch  road,  and  the  transportation 
to  that  point  is  more  expensive.  Held,  that 
the  facts  of  the  case  did  not  support  this 
claim.  Lincoln  Board  of  Trade  v.  Missouri 
Pac.  R.  Co.,  2  Int.  Com.  Rep.  98,  2  Int.  Com. 
Com.  155. 


It  was  also  claimed  that  the  traffic  to 
Omaha  was  much  larger  than  to  Lincoln. 
Held,  that  the  determination  of  the  question 
would  involve  the  consideration  not  only 
of  the  volume  of  business,  but  the  compar- 
ative length  of  the  two  roads,  the  grades, 
crossings,  bridges,  interest,  facilities  with 
which  trains  may  be  handled,  and  other 
matters  which  might  be  material.  Lincoln 
Board  of  Trade  v.  Missouri  Pac.  R.  Co.,  2 
Int.  Com.  Rep.  98,  2  Int.  Com.  Com.  155. 

It  appeared  that  another  and  competing 
line  is  operated  between  St.  Louis  and 
Omaha,  which  is  eighty-one  miles  shorter 
than  defendant's  road,  which  compelled 
lower  rates  to  that  place  than  to  Lincoln. 
Held,  that  such  competition  could  not  be 
used  as  a  reason  for  compelling  a  corre- 
sponding reduction  to  Lincoln.  Lincoln 
Board  of  Trade  v.  Missouri  Pac.  R.  Co.,  2 
Int.  Com.  Rep.  98,  2  ////.  Com.  Com.  155. 

It  is  not  a  violation  of  section  4  of  the  act 
relating  to  long  and  short  hauls  for  defend- 
ant company  to  meet  any  cut  rates  between 
St.  Louis  and  Omaha  made  by  the  other 
company  having  the  shorter  line.  Lincoln 
Board  of  Trade  v.  Missouri  Pac.  R.  Co.,  2 
Int.  Com.  Rep.  98,  2  Int.  Com.  Com.  155. 

It  appeared  also  that  the  distributing  rates 
from  Lincoln  were  more  favorable  than 
those  from  Omaha,  which  would  about 
equalize  the  diflference  in  rates  to  the  two 
places,  though  the  advantage  in  the  dis- 
tributing rates  were  not  given  by  defend- 
ant; but  this  still  left  a  disparity  as  between 
the  merchandise  carried  to  and  consumed 
in  the  two  places.  Held,  that  this  was  not 
sufficient  to  justify  distributing  the  rates. 
Lincoln  Board  of  Trade  v.  Missouri  Pac.  R. 
Co.,  2  Int.  Com.  Rep.  98,  2  Int.  Com.  Com. 

121.  on  grain  from  Northwest 

to  Minneapolis  and  I>nluth. — A  mill- 
ing city  like  Minneapolis,  which  has  both 
great  and  acquired  milling  faci'ities,  and  is 
favorably  situated  with  reference  to  a  large 
grain  producing  section,  is  entitled  to  these 
natural  advantages ;  and  carriers  of  grain 
are  not  justified  in  making  rates  to  another 
competing  place,  like  Duluth,  which  would 
destroy  the  natural  advantages  of  the  for- 
mer. Chamber  of  Commerce  v.  Great  Nor/h- 
ern R.  Co.,  5  Int.  Com.  Com.  571,  4  Int.  Com. 
Rep.  230. 

Duluth  is  nearer  to  the  markets  than 
Minneapolis,  and  to  this  extent  its  advan- 
tages ought  not  to  be  taken  away ;  but,  on  the 


m. 


n 


4S 


INTERSTATE   COiMMERCE,  122-125. 


io  a 


:,r 


other  hand,  Minneapolis  is  nearer  to  the 
great  wheat  producing  district  of  the  north- 
west than  Duluth,  and  to  this  extent  it  is 
entitled  to  the  advantages  which  naturally 
belong  to  it;  and  an  adjusimeiit  of  rates 
which  denies  to  Minneapolis  these  natural 
advantages  is  unjust.  Chamber  of  Com- 
merce V.  Great  Northern  R.  Co.,  5  Int. 
Com.  Com.  571,  4  //it.  Com.  Rep.  230. 

And  tlie  fact  that  iMii)nea[.o!i^ 
large  lumber  producing  placs.  and 
loiuling  of  trains  which  carry  wiif 
neapolis  with  lumber  going  we^i.  is  ni'ire 
probable  than  from  Duluth,  is  an  element  to 
be  considered  in  establishing  ;lrj  rates. 
Chamber  of  Commerce  v.  Great  Norths  R. 
Co.,  5  Int.  Com.  Com.  571,  4 /«/.  Com.  Rep. 
230. 

Rates  on  wheat  from  points  in  North  and 
South  Dakota  to  Minneapolis — held,  unrea- 
sonable as  compared  with  tlie  rates  to  Du- 
luth and  other  Lake  Superior  ports;  and 
tlie  commission  ordered  that  the  rate  be 
adjusted  to  both  places  upon  the  basis  of 
distance  over  the  nearest  practicable  routes. 
Chamber  of  Commerce  v.  Great  Northern  R. 
Co.,  5  Int.  Com.  Com.  571,  4  Int.  Com.  Rep. 
230. 

132. oil  cotton  to  New  Orleans 

and  to  northeast  Atlantic  ports.— 
The  New  Orleans  Cotton  Exchange  com- 
plained of  the  unreasonableness  of  relative 
rates  from  stations  on  defendant's  road  in 
Kentucky,  Tennessee,  and  Mississippi,  on 
cotton  transported  to  New  Orleans,  as  com- 
pared with  the  rates  from  same  stations  to 
eastern  markets  and  Atlantic  ports.  Held, 
that  the  circumstances  and  conditions  sur- 
rounding the  traffic  in  the  respective  ser- 
vices performed  must  be  considered ;  and 
when  found  substantially  dissimilar  and 
wholly  unlike,  may  modify  the  rates.  New 
Orleans  Cotton  Exch.  v.  Illinois  C.  R. 
Co.,  2  Int.  Com.  Rep.  777,  3  Int.  Com.  Com, 

534. 

The  fact  that  one  carrier's  proportion  of  a 
through  rate  on  such  cotton  is  lower  than 
its  local  rate  over  its  own  line  does  not 
make  the  through  rate  unlawful.  A'e7t'  Or- 
leans Cotton  Exch.  v.  Illinois  C.  R.  Co.,  2 
Int.  Com.  Rep.  777,  3  Int.  Com.  Com.  534. 

It  appeared  that  new  roads  had  been  built 
which  opened  new  competition  and  new  lines 
for  the  transportation  of  such  cotton  to 
other  points.  Held,  that  such  competition 
was  one  of  the  purposes  intended  to  be  pro- 
moted by  the  Interstate  Commerce  Act,  and 


it  could  not  interfere  because  it  might  tend 
to  divert  freiglit  from  the  market  it  had 
formerly  sought.  A'eit/  Orleans  Cotton  Exch. 
v.  Illinois  C.  R.  Co.,  2  Int.  Com.  Rep.  777,  3 
Int.  Com.  Com.  534. 

And  the  fact  that  carriers  were  met  by 
active  water  competition  at  New  Orleans 
would  justify  them  in  making  other  rates 
whicli  were  just  and  reasonable,  in  view  of 
such  competition,  without  violating  the 
statute.  A'ew  Orleans  Cotton  Exch.  v.  Illi- 
nois C.  R.  Co.,  2  ////.  Com.  Rep.  777,  3  ////. 
Com.  Com.  534. 

123.  from  seaboard  to  Cliatta- 

noo{;a  and  Nashville.— Freights  from 
York  and  other  north  Atlantic  points, 
ov  1  de'jndant's  road,  must  pass  tlirongh 
Chattanooga,  Tenn.,  to  reach  Nashville,  150 
miles  beyond.  Defendant  charged  seventy- 
three  cents  per  hundred  on  a  certain  class 
of  freight  to  Chattanooga,  and  carried  like 
shipments  to  Nashville  for  forty-two  cents 
per  hundred,  which  was  claimed  as  a  com- 
petitive point.  Held,  that  the  charge  was  a 
violation  of  section  4  of  the  statute,  rCiating 
to  long  and  short  hauls.  Chattanooga  P^ard 
of  Trade  v.  East  Tenn.,  V.  &*  G.  R.  Co.,  5 
Int.  Com.  Com.  546,  4  Int.  Com.  Rep.  213. 

124. on  oil  from  Pennsylvania 

to  Buffalo  and  the  seacoast.— A  car- 
rier was  charged  with  unreasonable  rates  on 
oil  from  a  point  in  Pennsylvania  to  BufTalo, 
N.  Y.,  and  the  charge  was  attempted  to  be 
sustained  by  comparing  the  rates  charged 
on  an  inferior  grade  of  oil  which  passed 
through  Buffalo  to  the  seacoast  in  New 
Jersey  for  export.  The  evidence  showed 
that  the  export  oil  was  chiefly  carried  in 
cars  of  another  company,  and  that  there 
were  expensive  terminal  charges  in  Buffalo 
which  were  not  met  at  the  seacoast.  Held, 
that  the  circumstances  and  conditions  were 
substantially  dissimilar,  within  the  meaning 
of  the  statute.  Rice  v.  Western  N.  y.&*I\ 
R.  Co.,  2  ////.  Com.  Rep.  298,  2  Int.  Com.  Com. 

389. 
125.  Tjocal  and  throu{;h  rates.— If 

two  companies  by  agreement  make  a  ;oint 
tariff  over  their  lines,  or  any  parts  of  ilicir 
lines,  such  joint  tariff  is  not  the  basis  by 
which  the  separate  tariff  of  either  line  is  10 
be  measured  or  condemned  under  the  long 
and  short  haul  clause.  Chicago  <&*  A'.  W. 
R.  Co.  v.  Osborne,  53  Am,  <S-  Eng.  R.  Gas.  18, 
52  Fed.  Rep.  912,  10  U.  S.  App.  430,  3  C.  C. 
A.  347 ;  reversing  49  Am.  &*  Etig.  R.  Cas. 
12.  48  Fed.  Reft.  49.— FOLLOWED  IN  Tozer 


INTERSTATE   COMMERCE,  126,  127. 


43 


V.  United  States,  53  Am.  &  Eng.  R.  Gas.  14, 
52  Fed.  Rep.  917.  Quoted  in  United 
States  V.  Meilen,  53  Fed.  Rep.  229. 

.An  intermediate  rate  should  never  exceed 
the  through  rate,  plus  the  local  rate  back  to 
the  intermediate  place.  Martin  v.  Southern 
Pac.  Co.,  2  Int.  Com.  Kep.  i,  2  Int.  Com. 
Com.  I. 

Whether  a  rate  violates  the  long  and 
short  haul  provision  must  be  determined 
bv  a  reference  to  the  rate  as  an  entirety,  and 
not  by  the  proportion  allotted  to  each  re  ad 
on  the  through  line.  Imperial  Coal  Co.  v. 
Pittsburgh  &'  L.  E.  K.  Co.,  2  Int.  Com.  Rep. 
436,  2  Int.  Com.  Com.  618. 

.•\  through  rate  which  gives  each  carrier 
less  than  its  local  rales  is  not  necessarily 
ille<jal,  provided  it  is  not  less  than  someone 
of  the  local  rates,  and  does  not  unjustly  dis- 
criminate against  individuals  or  localities, 
and  is  not  so  low  as  to  burden  other  kinds 
of  irafTic  with  a  part  of  the  cost  of  the  busi- 
ness in  question.  Lippman  v.  Illinois  C.  R. 
Co.,  2  Int.  Com.  Com.  584,  2  Int.  Com.  Rep. 

414- 

Where  two  or  more  carriers  combine  and 
carry  freight  to  a  point  on  the  last  road  in 
the  line,  they  cannot  avoid  the  obligations 
of  the  long  and  short  haul  clause  of  section 
4  by  claiming  that  they  are  but  local  car- 
riers as  to  such  freight.  James  Sr^  M.  Buggy 
Co.  V.  Cincinnati,  N.  O.  &^  7'.  P.  R.  Co.,  3 
/;//.  Com.  Rep.  682,  4  Int.  Com.  Com.  744. 

PiaintifT  maintained  a  grain  elevator  at 
Schenectady,  N.  Y.,  and  received  most  of 
iiis  grain  from  western  pointsby  water,  and 
found  a  market  in  Boston  or  other  New 
England  points,  and  asked  that  the  carriers 
be  required  to  carry  his  grain  to  New  Eng- 
iarui  points  at  the  same  proportionate  rate 
that  they  received  on  through  lines  from 
Chicago.  Held,  that  this  could  not  be 
granted,  when  it  would  have  the  effect  of 
reducing  the  rate  below  the  rates  charged 
from  intermediate  stations  between  Sche- 
nectady and  Boston  on  the  same  roads,  and 
existing  under  similar  circumstances  and 
conditions.  Thatcher  v.  Delaware  &^  II. 
Canal  Co.,  i  Int.  Com.  Com.  1 52,  i  Int.  Com. 
AV/.  356. 

.An  order  granting  plaintifl  the  rates 
asked  would  be  a  violation  of  section  4  of  the 
statute,  unless  the  rates  from  such  interme- 
diate points  should  also  be  reduced  ;  and 
the  commission  cannot  order  such  rates 
reduced  in  the  absence  of  anything  to  show 
tliai  they  are  excessive.     Thatcher  v.  Dela- 


ware &*  H.  Canal  Co.,  i  Int.  Com.  Com.  152, 
I  Int.  Com.  Rep.  356, 

12tt.  Wliat  constitutes  a  "line"  or 
"new  line"  in  tIiroii{;Ii  rates.— The 
word  •'  line," as  used  in  section  4,  providing 
that  no  carrier  should  charge  more  "  for  a 
shorter  than  for  a  longer  distance  over  the 
same  line  in  the  same  direction,  the  shorter 
being  included  within  the  longer  distance," 
means  a  physical  line,  and  not  a  mere  busi- 
ness or  traffic  arrangement ;  and  under  this 
construction  a  particular  piece  of  railroad 
may  be  part  of  several  lines.  Boston  <S««  A.  A'. 
Co.  V.  Boston  <S-  L.  R.  Co.,  i  Int.  Com.  Rep. 
571,  I  Int.  Com.  Com.  158. 

The  word  "  line,"  as  used  in  section  4  of 
the  statute,  is  significant.  Two  carriers  may 
use  the  same  road,  but  each  has  its  separate 
line.  One  company  may  lease  trackage 
rights  to  another  company,  but  the  joint  use 
of  the  same  track  does  not  create  the  same 
line,  so  as  to  compel  either  to  graduate  its 
tariff  by  that  of  the  other.  Chicago  &^  N. 
IV.  R.  Co.  V.  Osborne,  53  Am.  &•  Eng.  R. 
Cas.  18,  52  Fetl.  Rep.  912,4/;//.  Com.  Rep. 
257;  ra>ersing  49  Am.  &•  Eng.  R.  Cas.  12, 
48  Eetl.  Rep.  49. 

There  is  a  clear  distinction  between  the 
term  "  railroad,"  as  used  in  various  parts  of 
the  Interstate  Commerce  Act,  and  the  term 
"  line "  as  used  in  section  4.  Interstate 
Commerce  Commission  v.  Cincinnati,  A'.  O. 
&^  T.  P.  R.  Co..  S4  Am.  Gr' Eng.  R.  Cas. 
365,  56  Fed.  Rep.  925,  4  Int.  Com.  Rep.  332  ; 
rei>ersed  on  the  merits,  4  Int.  Com.  Rep,  582, 
13  U.  S.  App.  730,  mem,,  and  appealed  to  U. 
S.  Supreme  Court. 

There  must  be  a  "  common  arrangement  " 
between  the  roads  making  a  "  new  line  " 
before  it  can  be  formed  within  the  meaning 
of  the  statute ;  and  where  the  last  of  con- 
necting roads  agrees  to  accept  goods  com- 
ing over  the  preceding  roads  only  on  con- 
dition that  it  be  allowed  to  collect  full  local 
rates  thereon,  there  is  no  such  common  ar- 
rangement as  to  come  within  the  statute. 
Interstate  Commerce  Commission  v.  Cincin- 
nati, N.  O.  &*  T.  P.  R.  Co.,  54  Am.  &•  Eng. 
R.  Cas.  365.  56  Fed.  Rep.  925,  4  Int.  Com, 
Rep.  332  ;  re7>ersed  on  the  merits,  4  /;//.  Com. 
Rep.  582,  13  U.  S.  App.  730,  mem.,  and  ap- 
pealed to  U.  S.  Supreme  Court. 

127.  Procedure  wliere  complaint 
is  a{<rainst  several  connecting  car- 
riers. —  Several  connecting  roads  were 
charged  with  a  violation  of  the  long  and 
short  haul  clause,  and  one  of  the  companies 


44 


INTERSTATE   COMMERCE,  138,120. 


moved  that  the  complaint  be  dismissed  as 
to  it,  for  the  reason  tiiat  the  cliarges  sup- 
|);)sed  to  be  in  violation  of  the  statute  were 
not  made  or  shared  in  by  it,  its  participa- 
tion therein  being  only  in  the  low  charges 
on  the  long  hauls,  which  in  themselves  wrre 
legal,  and  were  not  averred  to  be  otherwise. 
//(■/(/,  that  the  complaint  should  not  be  dis- 
missed as  to  that  company,  where  the  evi- 
dence showed  that  its  interest,  and  the 
liiibility  of  the  low  rates  on  long  haul  traffic 
to  be  afTected  by  changes  made  in  the 
higher  rales  on  short  haul  tralfic,  is  so  great 
that  in  case  sucii  company  had  not  been 
made  a  party  it  would  be  proper  to  allow  it 
to  become  so  on  application.  Boston  lj^  A. 
K.  Co.  v.  Boston  &*  L.  K.  Co.,  i  Int.  Com. 
Ri-p.  571,  I  Int.  Coin.  Com.  158. 

Where  one  company  institutes  a  proceed- 
ing against  other  companies  for  a  violation 
of  section  4,  and  it  appears  that  the  sole 
grievance  of  the  complaining  company  is 
tliat  the  others  accept  through  traffic  at 
lower  rates  than  are  made  by  the  complain- 
ant and  its  connections,  the  proceeding  can- 
not be  maintained.  Boston  &*  A.  R.  Co.  v. 
Boston  &•  L.  R.  Co.,  i  Int.  Coin.  Rep.  571,  i 
Int.  Com,  Com,  158. 

And  such  complaint  cannot  be  sustained 
on  the  mere  ground  of  obtaining  a  con- 
struction of  the  statute.  Boston  &*  A.  R. 
Co.  V.  Boston  &*  L.  R.  Co.,  i  Int.  Com.  Rep. 
571,  I  Int,  Com.  Com.  158. 

The  right  to  make  greater  charges  for 
short  than  for  long  hauls  is  exceptional, 
and  depends  in  every  case  upon  the  peculiar 
circumstances  and  conditions;  and  a  ruling 
in  reference  thereto  in  the  case  of  one  car- 
rier would  not  be  applicable  to  another  car- 
rier differently  circumstanced.  Boston  <5>» 
A.  R.  Co.  V.  Boston  &*  L.  R.  Co.,  i  Int.  Com. 
Rep.  571,  I  Int.  Com.  Com.  158. 

If  several  companies  join  in  making  a 
through  rate  less  for  a  longer  haul  than 
some  one  of  the  companies  charged  for  a 
longer  haul,  it  is  a  violation  of  section  4; 
and  tlie  company  making  the  greater  charge 
must  justify  it.  Boston  &»  A.  R.  Co.  v.  Bos- 
ton <S-  L.  R.  Co.,  1  Int.  Com.  Rep.  571,  i 
In'.  Com.  Com,  158, 

Where  business  is  done  over  several  con- 
necting roads  by  what  is  termed  "a  dispatch 
line,"  which  appears  to  be  merely  an  asso- 
ciation of  roads,  a  tariff  rate  made  by  the 
manager  of  the  dispatch  line,  who  is  agent 
also  for  the  individual  roads,  which  is  a 
violation  of  the  statute,  will  render  the  in- 


dividual companies  liable.  Be  fton  &»  A.  R. 
Co.  V.  Boston  &*  L.  R.  Co.,  1  Ii.t.  Com.  Rep. 
571,  I  Int.  Com.  Com.  158. 

las.  Suttieiciicy  of  iiidictiiuMit  iiii- 
rtcr  loiij;  and  short  liaiil  section.— 
The  provision  (section  4)  relating  to  long 
and  short  hauls,  only  applies  where  the  rate 
for  both  hauls  is  a  joint  through  rate,  and 
not  where  one  is  joint  and  the  other  a  com- 
bined local  rate.  So  an  indictment  for  a 
violation  of  the  statute,  which  charges  that 
the  long  haul  rate  is  a  joint  rate,  is  bad  un- 
less it  also  charges  that  the  short  liaul  rate 
is  also  joint;  and  in  the  absence  of  such 
charge  it  will  be  presumed  that  it  was  a 
combined  local  rate.  United  States  v.  Mel- 
len,  53  Fed.  Rep.  229,  4  Int.  Com.  Rep.  247. 
— yuoTiNG  Chicago  &  N.  VV.  R.  Co.  v.  Os- 
borne, 52  Fed.  Rep.  912. 

So  an  indictment  is  bad  which  merely 
charges  that  the  share  of  a  joint  rate  going 
to  one  company  is  less  than  its  local  rate 
for  a  shorter  haul.  United  States  v.  Mellen, 
53  Fed.  Rep.  229,  4  Int.  Com.  Rep.  247. 

A  railroad  agent  who  has  nothing  to  do 
with  fixing  rates,  but  merely  collects  the 
freight,  is  not  indictable  for  a  violation  of 
the  long  and  short  haul  provision  of  the 
statute.  United  States  v.  Mellen,  53  Fed. 
Rep.  229, 4  Int.  Com.  Rep.  247.— Following 
United  States  v.  Michigan  C.  R.  Co.,  43 
Fed.  Rep.  26. 

129.  Matters  of  procedure.  —  The 
commission  will  not  make  an  order  for  relief 
under  section  4,  relating  to  long  and  short 
hauls,  except  upon  a  verified  petition  and 
investigation  into  the  facts.  In  re  Southern 
Pac.  R.  Co.,  I  Int.  Com.  Com.  6,  i  Int.  Com. 
Rep.  16. 

The  commission  will  not  grant  a  general 
suspension  of  section  4  to  any  road,  but  will 
give  relief  only  as  to  the  traffic  between 
specified  points.  In  re  Richmond  &*  A.  R. 
Co.,  I  Int.  Com.  Rep.  22. 

Where  a  complaint  involves  the  reason- 
ableness of  rates  at  many  points  extending 
through  a  large  territory,  the  commission 
will  not  undertake  to  determine  the  rates 
upon  the  face  of  the  tariff  without  proofs. 
Spartanburg  Board  of  Trade  v.  Richmond 
&*  D.  R.  Co.,  2  Int.  Com.  Rep.  193,  2  Int. 
Com.  Com.  304. 

And  in  such  proceeding  affecting  che 
charges  at  many  places,  where  it  appears 
that  there  are  others  who  would  be  affected, 
and  are  as  much  interested  as  plaintiff,  the 
commission  will  give  them  an  opportunity 


to  appeal 

tanhurg  j 

/i'.    Co.,   2 

Com.  304. 

Where 

iiaul  rule 

fiom,  the 

tile  burde 

leasoiiablt 

V.  Richnio 

193.  2  Int. 

Where  c 

lation  of  tl 

attempt  tc 

clearly  set 

relied   on 

Aorthern  j 

5  Int.  Com. 

I.JO.  Di 

A  violation 

and  short  h 

ences  in  cla 

ences   in   n 

Co.,  2  Int.  I 

— Recognu 

Co.,  I  Int.  C 

9.  Filing 

a. 

131.  DhI 

lisli.— Comi 

'ions  to  tak 
traffic  from 
the  rates  sh 
publicly  in 
traffic.     In 
nental  Lines 
Com.  Com.  3: 
The  comm 
carriers     the 
methods   by 
framed  in  c( 
special  sugg 
I"  re  Colum 
^''<A  n,  I  Ini 
One  of  th( 
put  an  end 
pers  to  ask  c 
requires  that 
always  be  an 
point,  by  pul 
the  statute. 
tinental  Line 
Com.  Com.  3: 

A  carrier 
particular  kir 
to  post  rate  s| 


INTERSTATE   COMMERCE,  130-132. 


45 


tn  appear  at  the  taking  of  evidence.  Spar- 
Idnlnirg  Board  of  Trade  v.  Richmond  &*  D. 
A'.  Co.,  2  Int.  Com.  Kep.  193,  2  ////.  Com. 
Com.  304. 

Where  it  appears  that  the  long  and  short 
Imul  rule  of  fixing  rates  has  been  departed 
from,  tile  carriers  maicing  the  rates  assume 
the  burden  of  proof  to  show  that  they  are 
reasonable.  Spartanburg  Board  of  Trade 
V.  Richmond  &r*  D.  R.  Co.,  2  Int.  Com.  Rep. 
193,  2  ////.  Com.  Com.  304. 

Where  carrier.*  answer  a  charge  of  a  vio- 
lation of  the  long  and  short  haul  clause,  and 
attempt  to  justify  it,  their  answers  must 
clearly  set  out  the  facts  and  circumstances 
relied  on  as  a  justification.  Raworth  v. 
Northern  Pac.  R.  Co.,  3  Int.  Com.  Rep.  857, 
5  /;//.  Com.  Com.  234. 

130.  Dillereiiue  in  classification.— 
A  violation  of  section  ^,  relating  to  long 
and  short  hauls,  may  be  effected  by  differ- 
ences in  classification  as  well  as  by  differ- 
ences in  rates.  Martin  v.  Southern  Pac. 
Co.,  2  Int.  Com.  Com.  i,  2  Int.  Com.  Rep.  i. 
—Recognizing  In  re  Louisville  &  N.  R. 
Co.,  I  Int.  Com.  Com.  31. 

9.  Filing  and  Publishing  Schedules. 
a.  Freight  Schedules. 

131.  Duty  to  make,  flic,  and  pub- 

lisli.— Common  carriers  are  under  obliga- 
tions to  take  all  descriptions  of  ordinary 
traffic  from  all  points ;  and  it  is  right  that 
the  rates  should  be  known  and  announced 
publicly  in  advance  of  the  offering  of  the 
traffic.  In  re  Tariffs  of  the  Transconti- 
nental Lines,  2  Int.  Com.  Rep.  203,  2  Int. 
Com.  Com.  324. 

The  commission  has  uniformly  held  that 
carriers  themselves  should  devise  the 
methods  by  which  their  tariffs  should  be 
framed  in  conformity  to  the  law,  without 
special  suggestions  from  the  commission. 
In  re  Columbus  &*  W.  R.  Co.,  2  /;//.  Com. 
Ri-p.  n ,  I  Int.  Com.  Com.  626. 

One  of  the  purposes  of  the  statute  is  to 
put  an  end  to  the  practice  requiring  ship- 
pers to  ask  carriers  for  rates.  The  statute 
requires  that  known  and  equal  rates  should 
always  be  announced  to  shippers  at  every 
point,  by  publishing  them  as  required  by 
the  statute.  In  re  Tariffs  of  the  Transcon- 
tinental Lines,  2  Int.  Com.  Rep.  203,  2  Int. 
Com.  Com.  324. 

A  carrier  having  established  rates  on  a 
particular  kind  of  freight  is  required  by  law 
to  post  rate  sheets  in  its  respective  stations ; 


and  the  fact  that  freight  is  for  export 
does  not  relieve  it  from  this  legal  obligation. 
New  Orleans  Cotton  Exch.  v.  Loiiisvillc.  X. 
O.  &^  T.  R.  Co.,  3  Int.  Com.  Rep.  523,  4  ////. 
Com.  Com.  694. 

Where  a  company  carries  oil  both  in  bar- 
rels and  in  tank  cars,  which  may  be  fur- 
nished by  the  shipper,  the  rates  upon  which 
they  may  be  furnished  should  be  uniform, 
and  published  with  the  company's  rate 
sheets.  Rice  v.  Louisville  &^  N.  R.  Co.,  i 
Int.  Com.  Rep.  722,  i  ////.  Com.  Com.  503. 

No  presumption  arises  as  to  the  legality 
or  illegality  of  rates  from  the  mere  fact  of 
filing  the  schedules;  and  rates  which  are 
illegal  cannot  be  legalized  by  any  failure  to 
challenge  them.  San  Bernardino  Board  of 
Trade  v.  Atchison,  T.  &^  S.  F.  R.  Co.,  3  Int. 
Com.  Rep.  138.  4  Int.  Com.  Com.  104. 

Where  freight  passes  over  continuous 
lines,  operated  by  more  than  one  company, 
but  under  a  joint  rate  for  through  carriage, 
the  commission  is  authorized  to  prescribe 
the  measure  of  publicity  which  shall  be 
given  to  such  rates  and  the  place  in  which 
they  shall  be  pul)lished.  New  Orleans  Cotton 
Exch.  v.  Louisville,  N.  O.  &*  T.  R.  Co.,  3 
Int.  Com.  Rep.  523,  4  Int.  Com.  Com.  694. 

132.  Joint  schedules,  liow  made, 
flled,  and  publislied.— A  joint  freight 
rate  over  several  individual  roads  must 
show  what  carriers  unite  in  establishing  it. 
Lehmann  v.  Texas  &*  P.  R.  Co.,  3  Int.  Com. 
Rep.  706,  5  Int.  Com.  Com.  44. 

Where  several  corporations  unite  in  a 
joint  through  rate,  and  establish  a  joint  as- 
sociation or  committee  for  the  control  of 
such  rates,  it  is  not  necessary  for  each  cor- 
poration individually  to  file  a  schedule  of 
rates;  but  it  is  sufficient  if  the  schedule  be 
filed  by  such  joint  association  or  committee 
with  written  authority  from  each  of  the 
corporations  authorizing  it  to  do  so.  In  re 
Joint  Tariffs  and  Schedules,  i  Int.  Com.  Com. 
225. 

Under  section  6  it  is  not  necessary  for 
either  of  two  connecting  lines  which  unite 
in  a  joint  through  tariff  to  publish  their 
joint  tariff  at  a  non-competing  point,  or  to 
volunteer  information  of  such  tariff  to  ship- 
pers. The  carrier  fulfils  its  obligation  when 
it  publishes  its  local  tariff  and  advises  ship- 
pers truthfully  in  respect  to  any  rates  as  to 
which  he  makes  special  inquiry.  Chicago 
(S-  A^.  W.  R.  Co.  v.  Osborne,  53  Am.  &»  Eng. 
R.  Cas.  18, 4  Int.  Com.  Rep.  257,  52  Fed.  Rep. 
912,  10  £/.  S.  App.  430,  3  C  C.  A.  347 ;  re- 


V 


..-,s«iSgff:- 


'  kH% 


46 


INTERSTATE   COMMERCE,  133. 


versing  49  Am.  Sf  Eng.  R.  Cas,  1 2,  48  Fed. 
Rep.  49. 

Tlie  Interstate  Commerce  Act,  §  6,  re- 
quires carriers  enj;a}j[e(l  in  such  traffic  to 
establish  and  pubiisii  a  schedule  of  rates, 
and  makes  it  unlawful  for  any  carrier  to 
ciiarge,  demand,  or  collect  any  greater  or 
less  compensation  for  transportation  than 
specified.  Had  appellant  and  connecting 
lines  knowingly  entered  into  tlie  contract 
in  question,  whereby  less  than  specified, 
they  would  have  incurred  severe  [lenalties  ; 
and  if  appellant  had  collected  dillercnt 
rates  from  those  specified  it  would  have 
been  as  guilty  as  if  it  had  made  the  con- 
tract. Missouri,  A'.  (S-  T.  R.  Co.  v.  Trinity 
County  Lumber  Co.,  1  J'ex.  Civ.  App.  553, 
21  S.    \V.  Rep.  290. 

Tlie  same  law  forbids  discriminations,  but 
does  not  provide  that  an  unjust  discrimina- 
tion shall  have  the  effect  of  limiting  the 
carrier  to  the  lowest  rate  charged.  The 
carrier  must  schedule  its  rates,  and  can  dis- 
criminate only  at  the  peril  of  criminal  prose- 
cution, and  the  party  injured  may  restrict 
the  carrier  to  just  remuneration,  and  hold 
it  responsible  for  damages  for  its  wrongful 
conduct ;  but  the  mere  fact  that  a  less  rate 
is  allowed  to  one  class  of  shippers  than  to 
another  is  not  proof  that  the  rate  charged 
is  unreasonable.  Missouri,  K.  &*  T.  R.  Co. 
V.  Trinity  County  Lumber  Co.,  i  Tex.  Civ, 
App.  553,  21  S.  IV.  Rep.  290. 

133.  Schedules  011  international 
roa<l.s. — The  provision  of  section  i  that 
the  act  shall  apply  to  a  "  continuous  car- 
riage or  shipment  from  one  state  or  terri- 
tory to  any  other  state  or  territory  *  *  * 
or  from  any  place  in  the  United  States  to 
an  adjacent  foreign  country,"  applies  to  a 
road  that  takes  up  goods  in  the  United 
States  for  continuous  carriage  to  a  point  in 
the  Dominion  of  Canada.  In  re  Grand 
Trunk  R.  Co.,  2  Int.  Com.  Rep.  496,  3  Int. 
Com.  Com.  89. 

The  word  "  to "  as  used  in  the  statute 
means  the  destination  of  the  property  into, 
or  at  any  place  within  the  state  reached  by 
the  continuous  carriage  or  shipment,  and 
the  regulation  intended  is  from  the  origin 
to  the  destination  of  the  carriage ;  and  the 
same  rule  applies  where  it  goes  into  a 
foreign  country.  The  word  "to"  means 
"  into,"  if  that  be  the  place  of  destination 
of  the  freight,  and  not  to  the  border  of  the 
country.  In  re  Grand  Trunk  R.  C0.,  2  Int. 
Com.  Rep.  496,  3  Int.  Com.  Com,  89. 


The  word  "  to,"  as  used  in  the  statute,  Is 
employed  in  the  descriptive  sense  in  accord- 
ance with  orflinary  usage,  as  when  a  person 
speaks  of  going  to  some  city  or  to  some 
other  country.  He  does  not  mean  merely 
to  the  boundary  line,  but  into  the  city  or 
country.  In  re  Grand  Trunk  R,  Co.,  2  Int. 
Com.  Rep.  496,  3  Int.  Com.  Com.  89. 

And  as  such  carriers  are  subject  to  the 
statute,  it  follows  that  they  must  comply 
with  the  provision  respecting  the  printing 
of  schedules  of  rates,  and  the  filing  with 
the  commission,  and  posting  copies  thereof, 
and  of  any  advances  or  reducti(jiis  made; 
and  also  the  provision  respecting  joint 
tariffs  of  rates  and  fares.  In  re  Grand 
Trunk  R.  Co.,  2  Int.  Com.  Rep.  496,  i  Int. 
Com.  Com.  Sy. 

Whenever  the  carriage  originates  in  the 
United  States  and  goes  to  a  destination  in 
an  adjacent  foreign  country,  or  comes  from 
a  port  of  entry,  or  other  place,  in  an  ad- 
jacent foreign  country  to  a  destination 
within  the  United  Stales,  it  is  subject  to 
regulation  under  the  jtatute.  /;/  re  Grand 
Trunk  R.  Co.,  2  Int.  Com.  Rep.  496,  3  Int. 
Com.  Com.  89. 

And  this  is  not  an  attempt  to  regulate  tlie 
internal  affairs,  or  to  antagonize  the  laws 
of  another  country;  but  is  merely  the  asser- 
tion of  proper  control  over  the  domestic 
business  of  the  United  States,  and  for  the 
protection  of  its  own  citizens;  nor  is  the 
object  of  the  statute  for  the  protection  of 
subjects  of  another  government.  In  re 
Grand  Trunk  R.  Co.,  2  Int.  Com.  Rep.  496, 
3  Int.  Com.  Com.  89. 

And  it  is  no  objection  to  applying  such 
statute  to  an  international  carrier  that  no 
domestic  carrier  or  other  person  makes 
proof  of  specific  injury  from  a  disregard  of 
the  statute,  and  that  the  commission  could 
not  interfere  without  such  proof,  as  it  is  ex- 
pressly provided  by  section  13  of  the  statuie 
that  "no  complaint  at  anytime  shall  be 
dismfssed  because  of  the  absence  of  dirert 
damage  to  the  complainant."  In  re  Grand 
Trunk  R.  Co.,  2  Int.  Com.  Rep.  496,  3  Int. 
Com.  Com.  89, 

And  where  such  carrier  has  filed  a 
schedule  of  rates  it  is  unlawful  for  it  to  re- 
ceive from  any  person  a  greater  or  less  com- 
pensation for  taking  up  goods  in  the  United 
States  and  carrying  them  to  a  destination 
in  Canada,  than  is  fixed  in  the  published 
schedule.  In  re  Grand  Trunk  R.  Co.,  2  Int. 
Com.  Rep.  496,  3  Int.  Com.  Com.  89. 


INTERSTATE   COMMERCE,  134-137. 


47 


134.  InliiiKl  niid  oc«uii  rates  on 
export  u<mmIn.— An  inland  joint  rate  for 
foreign  tralHc,  with  any  advances  or  reduc- 
tions therein,  sliould  be  publislied  by  post- 
ing tlieni  in  a  public  place  at  a  dei)ot  where 
tiic  freight  is  received  at  a  port  of  entry, 
uiui  also  at  its  place  of  destination  in  the 
United  States.  Ntiv  York  Hoard  of  Trade 
Sf*  Tramp.  Co.  v.  Pennsylvania  R.  Co.,  3  /«/. 
Com.  Rep.  417,  4  ////.  Com.  Com.  447. 

The  New  York  Produce  Excliaiige  com- 
plained that  carriers  charged  more  for 
grain  and  other  products  shijjped  from  Chi- 
cago and  western  points  to  New  York  than 
on  like  shipments  to-  New  York,  but  in- 
tended for  export,  and  often  on  through 
bills.  Held,  that  the  general  rule,  and  the 
one  approved  by  experience,  is  to  make  the 
through  rate  by  adding  to  the  inland  rate  to 
the  seaboard  the  current  ocean  rate  at  the 
tin)e.  Neiu  York  Produce  Exch.  v.  Ne7o 
York  C.  (3-  //.  R.  R.  Co.,  2  Int.  Com.  Rep. 
553'  3^«/'  Com.  Com.  137. 

This  is  based  upon  the  fact  that  the  work 
of  the  inland  carrier  is  completed  when  he 
discharges  his  freight  at  the  seaboard, 
wlicther  in  warehouses,  elevators,  or  on 
board  vessels  ;  and  that  the  service  is  iden- 
tical in  each  case ;  and  that  the  rates  may 
be  fixed  at  what  is  fair  and  just,  while  the 
very  opposite  applies  to  ocean  rates,  not 
being  subject  to  control,  and  liable  to 
hourly  fluctuation.  Neiu  York  Produce 
Exch.  V.  New  York  C.  &•  H.  R.  R.  Co.,  2 
Int.  Com.  Rep.  553,  3  Int.  Com.  Com.  137. 

And  it  follows  that  in  making  and  pub- 
lishing export  tariff  rates,  the  rate  to  the 
seaboard  should  be  sp^ified,  and  should 
not  discriminate  against  the  inland  tariff 
rate,  unless  justifiable  conditions  exist  for 
the  difference  ;  and  such  conditions  do  not 
exist  as  to  inland  shipments  to  New  York. 
Xew  York  Produce  Exch.  v.  Niiu  York  C. 
&-  H.  R.  R.  Co.,  2  Int.  Com.  Rep.  553,  3  Int. 
Com.  Com.  137, 

Under  the  act  as  amended  March  2,  1889, 
requiring  ten  days'  notice  of  intended  reduc- 
tions in  rates,  it  is  unlawful  to  vary  them 
from  day  to  day  to  meet  fluctuations  in 
ocean  rates,  as  the  evidence  shows  had  been 
done  in  this  case.  A'etv  York  Produce  Exch. 
v.  A\-7v  York  C.  &'  H.  R.  R.  Co.,  2  Int.  Com. 
Rep.  553,  3  Int.  Com.  Com.  137. 

135.  Liability  for  violation  of 
si'hedule.— A  railroad  company  fixed  a 
through  rate  of  20  cents  a  hundred  on  cer- 
tain kinds  of  freight  from  Chicago  to  New 


York,  and  22  cents  a  hundred  for  the  same 
freight  which  came  from  a  certain  distance 
west  of  Chicago,  which  would  be  brought  to 
that  city  on  other  roads.  When  the  freight 
originated  west  of  Chicago  the  company's 
proportion  of  the  thrf>ugh  rate  would  be 
18.:  r>nts,  and  3.8  cents  would  go  to  the 
road  oringing  the  freight  to  Chicago.  The 
company  made  shipments  from  Chicago, 
but  billed  the  goods  at  22  cents  as  though 
they  had  come  from  western  points,  but 
paid  the  shipper  back  3.8  cents.  Held,  that 
this  was  a  violation  of  the  provision 
of  the  Interstate  Commerce  Act  making 
it  unlawful  for  a  carrier  to  charge  differ- 
ent rates  from  those  specified  in  its  puli- 
lished  scliedule.  United  States  v.  Mich- 
igan C.  R.  Co.,  43  Eed.  Rep.  26,  3  Int.  torn. 
Rep.  287.— Followed  in  United  States  7'. 
Mellcn,  53  Fed.  Rep.  229. 

The  indictment  was  against  the  companv 
and  three  different  agents,  who,  it  was 
claimed,  participated  in  the  shipments,  but 
it  appeared  that  the  arrangement  was  made 
through  the  company's  general  freight 
agent,  one  of  the  defendants.  Held,  that 
the  fact  that  the  local  freight  agent,  who 
made  out  the  bills,  knew  that  there  was 
something  unusual  about  the  shipments, 
was  not  sufficient  to  make  him  criminally 
liable.  United  States  v.  Rlichigan  C.  R.  Co., 
43  Fed.  Rep.  26,  3  Int.  Com.  Rep.  287. 

130.  Sclietlulc  tliat  violates  tlie 
long:  hikI  short  haul  section.— Where 
a  carrier  issues  a  rate  sheet  which  secim 
to  violate  the  long  and  short  haul  clause, 
and  there  is  no  apparent  water  competition 
or  other  carriers  not  subject  to  regulation, 
the  presumption  is  that  it  is  unlawful,  and  it 
will  be  called  on  to  justify  such  rate.  In  re 
Chicago,  St.  P.  &^  K.  C.  R.  Co.,  2  Int.  Com. 
Com.  231,  2  Int.  Com.  Rep.  137. 

137.  Wrony:  classification.— Where 
a  party  only  complains  of  the  wrong  classi- 
fication of  an  article  which  he  ships,  and 
the  correcting  of  the  classification  is  all  the 
relief  he  seeks,  the  initial  carrier  is  the  only 
necessary  defendant ;  and  it  is  not  neces- 
sary to  unite  other  carriers  that  may  carry 
the  goods  part  of  the  way  and  share  in  the 
freight  collected.  Hurlburt  v.  Lake  Shore 
<S-  M.  S.  R.  Co.,  2  Int.  Com.  Rep.  81,2  Int. 
Com.  Com.  122. 

If  the  commission  should  be  called  on  to 
make  a  retroactive  order  requiring  the  re- 
funding of  overcharges,  by  reason  of  the 
wrong  classification,  then  it  might  be  neces- 


48 


INTiiKSTATli    COMMliKCii,  iaH-342. 


sary  to  unite  all  of  tlic  parties  who  had  re- 
ceived any  share  of  the  rate.  Ilurlburt  v. 
Lake  Shore  &•  M.  S.  A'.  Co. ,  2  /»/.  Com.  Hep. 
8 1,  2  /«/.  Ci»ii.  Com.  122. 

Complainant  yave  as  a  reason  for  the  cor- 
recting of  the  classilication  that  tiie  defend- 
ant c^)inpany  had  held  out  assurances  to 
liitn  that  his  ^oods  should  be  shipped  in  a 
lower  classification,  as  an  inducement  for 
him  to  locate  on  its  line  of  road.  J/M, 
liiat  such  assurances  were  no  reason  for 
makiiif;  a  classilication  ditTerent  from  what 
the  facts  would  justify,  however  honestly 
in.ide,  (ir  honestly  relied  on.  Hurllntrt  v. 
I.iil;e  S/iore  i5^  M.  S.  K.  Co..  2  /»/.  Cow.  A'e/>. 
81,  2  /;;/.  Co»t.  Com.  122. 

I'hiintitl  prepared  and  shipped  hub  blocks 
which  were  prepared  by  sawinj^  blocks  ab(jut 
twelve  inches  lonjj;  from  small  trees,  which 
were  then  turned  into  cylindrical  blocks  of 
uniform  thickness,  with  a  hole  bored 
tlii()ai;h  the  middle,  which  were  placed  in 
the  fifth  class,  which  embraced,  among 
other  things,  "  wa}>on  material  unfinished  "; 
but  a  great  deal  of  work  was  necessary  on 
such  blocks  to  convert  them  into  real  hubs. 
/■/eii/,  that  they  shoidd  have  been  put  in  the 
sixth  class,  embracing  lumber,  wooden  pav- 
ing blocks,  pickets,  picture  backing,  shin- 
gles, stave  bolts,  staves,  heading,  telegraph 
cross  arms,  etc.  Hurlburt  v.  Lake  Shore  (5~» 
M.  S.  R.  Co.,  2  Int.  Com.  Rep.  81,  2  Int. 
Com    Com.  122. 

liiH.  When  coinniisNioii  will  con- 
sider filed  8cliedules.~All  contracts 
and  rate  sheets  required  to  be  filed  with  the 
commission,  under  section  6,  will  be  consid- 
ered without  being  specially  put  in  evi- 
dence. Boston  F.  &•  P.  Exch.  v.  New  York 
&*  N.  E.  R.  Co.,  3  Int.  Com.  Hep.  493,  4////. 
Com.  Com.  664. 

h.  Passenger  Schedules. 

i:ii>.  l>iity  to  make  and  piibli.sh. 

— The  failure  of  a  carrier  to  publish  rates 
for  mileage  tickets  is  a  viol;ition  of  section 
6.  Larrison  v.  Chicat^o  &^  G.  T.  R.  Co,  i 
Int.  Com.  Rep.  369,  1  Int.  Com.  Com.  147. 

Tlie  agents  and  officers  of  a  large  number 
of  carriers  produced  before  the  commission 
specimens  of  the  passenger  rate  sheets  which 
they  had  prepared,  and  asked  the  commis- 
sion to  express  a  general  approval  of  the 
method  of  classification,  unless  some  legal 
objection  appeared.  Held,  that  the  com- 
mission would  act  cautiously  in  such  mat- 
ters,  and   would   refuse  specific  approval, 


though  the  rates  apparently  were  witliout 
objection,  and  might  be  acquiesced  in  until 
a  better  mode  might  be  substituted,  /;/  re 
Passenger  Tariffs,  2  Int.  Com.  Rep.  445,  2 
Int.  Com.  Com.  649. 

When  changes  are  made  in  passenger 
rates,  tlie  advances  or  redni  tioiis  should  be 
sent  to  the  coinmission  and  ntade  public,  as 
required  by  the  statute.  A  new  individual 
or  j<jint  passenger  tariti  must  be  posted  at 
the  stations  to  which  it  applies,  and  tickets 
can  be  sold  on  combination  of  the  initial  or 
terminal  locals  thereof.  In  re  Passe n^^er 
Tai  iffs,  2  ////.  Com.  Rep.  445,  2  /;//,  Coin. 
Com.  649. 

14<».  Exfiii'Kioii  rutvN.  —  The  pro- 
vision of  section  (),  relating  to  the  publica- 
tion of  rale  sheets,  applies  to  passenger  ex- 
cursion I  ales.  Piltshiirjrh,  C.  lir*  .St.  /,.  A", 
Co.  V.  liallimore  &^  O.  R.  Co.,  2  Int.  Cow. 
Rep.  729,  3  Int.  Com.  Com.  4(15. 

The  pr<Jvision  of  section  22  that  nothing 
therein  shall  apply  "to  the  issuance  (jf 
mileage,  excursion,  or  commutation  passen- 
ger tickets,"  authorizes  such  tickets,  but 
they  must  be  reasonable,  and  issued  impar- 
tially, as  required  by  other  portions  of  ihe 
statute.  Larrison  v.  Chicat^o  <&>•  G.  T.  R. 
Co.,  I  Int.  Com.  Com.  147,  i  Int.  Com.  Rep. 
3^'9- 

141.  Kate  wars.  —  Any  reduction  of 
passenger  rates  without  filing  a  schedule 
thereof  with  the  commission,  as  required 
by  section  6,  is  unlawful.  In  re  Passenger 
T.  &'  R.  Wars,  2  Int.  Com.  Hep.  340,  2  /;//. 
Com.  Com.  513. 

What  is  known  as  a  "  rate  war,"  whereby 
competing  carriers  repeatedly  reduce  pas- 
senger rates  to  a  very  low  basis,  is  unlawfid, 
unless  schedules  of  the  reductions  are  filed 
with  the  commission.  In  re  Passeitger  T. 
&*  R.  Wars,  2  Int.  Com.  Rep.  340,  2  /;//. 
Com.  Com.  513. 

And  such  rate  wars  cannot  create  any 
necessity  or  compulsion  which  will  justify 
a  reduction,  without  filing  the  schedule 
with  the  commission.  In  re  Passenger  T. 
(S-  A'.  Wars,  2  Int.  Com.  Rep.  340,  2  /;//. 
Com.  Com.  513. 

10.   Continuous  Carriage  of  Freights. 

142.  Shipment  must  beat  uniform 

rate.— The  carriage  of  freight  cannot  be 
prevented  from  being  treated  as  one  con- 
tinuous carriage  from  the  place  of  shipment 
to  the  place  of  destination  by  any  means  or 
devices  intended  to  evade  any  of  the  pro- 


-isions  of 
ti'.,  2  Int. 

Carriers 

li.ilfic  inter 
i'lteistate  p 
of  service    1 
ow  to  or  fr 
|»liiive  poi, 
•'tiler   I  let  we 
P"iiit  am)  a 
point  on  a  li 
^  ''.    R.  Co, 
t'oni.  Cow.  ijy 
'4.«.   Tin 
"'""     ««tf»fr 
^V'liie    the    1 
i'"'l  iiniiiterru 
■'""s|)(jnation 
■  lie  local  chari 
C/iiiiigo,  A.  /. 
^''    <-'".,  2  Int. 
Com.  450. 

'+4.  Katej 
r<"*lil,,,„.,i  at 

—  Where  live  si 
flerstanding  thi 
i'ltermediate  po 
but   to  be  reloi, 
satisfactory,  at 
«'";'i    shipment 
t/i rough  shipincj 
<-''•  V.  Chicago 
721,  3  ////.  Lorn. 


u.  Pi 

^^r>.    Poolii 
«'nni,.rand  pi 

"'"'In  the  NtJ 

secti„„  5,  n,.,,^j„^ 

"rronibination  ™ 
carriers  for  the  p| 

f'ltandcompetinl 
""'  '-'Pply  to  a  J 
[^'Iroarl  com  pan  J 
'O''  't'e  transportl 
'^'<pi>rs'  A.,soc.  vl 

^;-  5  Int.  Com. 
162. 

'*«.  Whole, 
"ated  hy  „„„,l 

provision  of  sect! 

Po^'i-'fr.  does  notf 
«"ch  pooling  33  ^P 

'"»  provisions  the 
^•'^"'">A46;  aM 

<>  n.  R.  D._J 


INTERSTATE   COMMERCE,  143-118 


40 


.isions  of  the  act.    In  re  Grand  Trunk  K. 
Co.,  I  Int.  Com,  Rep.  496,  3  Int.  Com.  Com, 

Carriers  should  not  troal  shipments  of 
li.itlic  intended  to  Ijo  coniinuous  between 
iiUiMstate  points  as  consisiin^,'  of  two  i<iiuls 
of  service  independent  of  each  otiier,  the 
one  t')  or  from  a  so-called  hasini^  or  com- 
|niiiive  point  on  a  through  rate,  and  the 
oiiiui  lieiween  the  basinj^  <jr  competitive 
point  am!  a  so-called  local  or  intermediate 
poiiil  on  a  local  rate.  I'crry  v.  Ilorida  C. 
&^  /'.  A'.  Co.,  3  ////.  Lew.  /u'/>,  740,  5  ////. 
C(»ii.  Cow.  y7. 

14.'t.  Tlii'oii^li  ra(<>  iiiny  hv  h>SH 
thiiii  at$Ki'4'(>iil«'  of  local  ratcH.  — 
Where  the  transportation  is  continuous 
ami  iminternipU'd,  a  charj^e  for  the  through 

ans|iorlation  may  he  less  than  the  sum  of 
.ne  local  charges  lietvveen  tlie  same  points, 
C/iii(i^o,  A'.  I.  &^  /'.  A".  Co.  V.  Chicaf;o&'  A. 
R.  Co.,  2  Int.  Com.  Rep.  721,  3  Int.  Com. 
Com.  450. 

144.  ItatcN  wlit'ii  t'r(>i);lit  is  to  l»» 
n>Hliip|u>(l  at  ail  iiitiiriiMMliatc  point. 
—Where  live  stock  is  shipped  with  the  un- 
derstanding that  it  may  be  unloaded  at  an 
intermediate  point  to  test  the  market  there, 
but  to  be  reloaded  if  the  market  is  not 
satisfactory,  at  the  option  of  the  shipper, 
sucii  shipment  cannot  be  treated  as  a 
tlir()uj4h  shipment.  Chicago,  R.  I.  &*  P.  R. 
Co.  V.  Chicago  &^  A.  R.  Co.,  2  Int.  Com,  Rep. 
721,  3  Int.  Com.  Com.  450. 

II.  Pooling  Contracts. 

145.  Pooliiif;  foiitract  between 
enrricr  and  pi|>e  line  company  not 
witliiu  tlie  statute.— The  provision  of 
section  5,  making  any  "  contract,  agreement, 
or  combination  with  any  common  carrier  or 
carriers  for  the  pooling  of  freights  of  difTer- 
eiitaiul  competing  railroads  "  unlawful,  does 
not  apply  to  a  pooling  contract  between  a 
railroad  company  and  a  pipe  line  company 
for  the  transportation  of  oil.  Independent 
Refiners'  Assoc.  V.  Western  X.  Y.  &*  P.  R. 
Co.,  5  Int.  Com.  Com.  415,  4  Int.  Com.  Rep. 
162. 

14<{.  Whole  contract  not  invali- 
(Inti'd  by  pnolint;  provisions.  —  The 
provision  of  section  5,  prohibiting  freight 
pooling,  does  not  invalidate  a  contract  for 
such  pooling  as  a  whole,  but  only  the  pool- 
ing provisions  therein.  Ives  v.  Smith,  8  A''. 
y.  Sit/)/>.  46 ;  affirming  3  N.  V.  Supp.  645. 
6  D.  R.  D.— 4. 


12.  Enforcement  of  the  Statute. 

147  inflect  anil  force  of  liiMlinifs  of 
the  commission. — Thecommijsi<in  is  not 
a  court.  It  is  a  special  tribunal  whose 
duties,  til' >ugh  largely  administrative,  are 
sonictimes  y/Mj7  judicial.  It  is  required  to 
investigate  and  re|M)rt;  but  ilsliiial  decision 
is  not  treated  as  a  judgment.  Tuiido  Prod- 
uce llxch.  v.  Lake  Shore  i*^  M.  S.  R.  Co.,  3 
/;//.  Com.  Rep.  830,  5  ////.  Coin.  Com.  166, 

Its  findings  are  neither  final  nor  conclu- 
sive. Nor  has  it  any  authority  to  enforce 
its  decision  or  award,  Kentucky  &^  I. 
liridge  Co.  V.  LouisTil/e  ■:'■-'  N.  R.  Co.,  37  /■'<•</. 
Re/>.  567,  2  L.  R.  A.  .:  y,  2  ////.  Com.  Rep. 

The  facts  found  or  reported  by  it  are  only 
given  the  force  and  weif^ht  of  primorfacie 
evidence  in  such  judicial  proceedings  as 
may  thereafter  be  had  for  the  enforcement 
<jf  its  recommendation  or  order.  Ken- 
tucky iS^  /.  liridge  Co.  v.  Louisville  &•  N. 
R.  Co.,  37  led.  Rep.  567,  2  L.  R.  A.  289,  2 
Int.  Com.  Rep.  351,  Interstate  Commerce 
Commission  v.  Atchison,  'P.  Sf'  S.  /•".  R,  Co., 
50  Am.  &^  Kng.  R.  Cas.  93.  50  Fed.  Rep. 
295,  4  Int.  Com.  Rep.  323;  appeal  dismissed 
in  149  U.  S.  264,  4  /;//,  Com.  Rep.  347.— 
Following  Kentucky  &  I.  Bridge  Co.  v. 
Louisville  &  N.  R.  Co.,  37  Fed.  Rep.  567; 
Interstate  Commerce  Commission  ?'.  Lehigh 
Valley  R.  Co..  49  Fed,  Rep.  177. 

W'liere  the  commission  itself  files  a  peti- 
tion in  a  federal  court  to  enforce  its  findings, 
such  findings  are  not  entitled  to  any  greater 
weight  than  if  an  individual  tiled  the  com- 
plaint. Such  findings  are  not  conclusive  of 
the  facts.  Interstate  Commerce  Commission 
v.  Lehigh  Valley  R.  Co..  49  I-'ed.  Rep.  177,3 
Int.  Com.  Rep.  796. — Foi.i.owkd  in  Inter- 
state Commerce  Commission  7'.  Atchison, 
T.  &  S.  F.  R.  Co..  so  Am.  &  Eng.  R.  Cas. 
93,  50  Fed.  Rep.  295. 

148.  Findings  of,  only  enforciiile 
in  federal  courts.— The  commission,  by 
section  12  of  the  statute,  is  "authorized  and 
required  to  execute  .ind  enforce  the  pro- 
visions of  this  act."  Under  this  power  it 
can  investigate,  find  facts,  reach  conclusions, 
and  make  orders,  either  on  complaint  or 
upon  inquiry  instituted  on  its  own  motion  ; 
but  its  findings,  conclusions,  and  orders  can 
only  be  enforced  through  the  courts.  Rates 
and  Charges  on  Food  Products,  3  Int.  Com. 
Rep.  151.  4  Int.  Com.  Com.  116. 

And  the  trial  in  court  to  enforce  the  or- 


I 
i 


^4     I 


50 


INTERSTATE   COMMERCE,  Hi),  150. 


ders  or  findings  of  the  commission  is  a  new 
one,  in  whicli  the  court  readies  its  own  con- 
clusions and  makes  its  own  orders.  The 
conclusions  an<i  fuidings  of  the  commission 
are /rmrt-/rt£/£' evidence,  but  have  no  bind- 
ing force.  A'itU's  aiiii  Cliargcs  on  I'ood  Prod- 
ucts, 3  Int.  Coin.  Rep.  151,4  Int.  Com.  Com, 
116. 

14W.  When  orders  of  the  coniniis- 
sioii  slioiihl  be  eiilorced.— Where  the 
commission  has  reached  a  conclusion,  it  is 
no  objection  to  enforcing  such  conclusion  in 
a  federal  court  that  the  complainant  before 
the  commission  had  suffered  no  real  dam- 
a.t;e  or  grievance,  but  that  another  railroad 
really  instigated  the  proceeding,  as,  under 
section  13  of  the  statute,  it  is  provided  that 
no  complain'  shall  be  dismissed  because  of 
the»absence  of  direct  damage  to  the  com- 
plainant; and  tlie  commission  itself  is  em- 
powered to  institute  proceedings  on  its  own 
motion,  and  apply  to  the  federal  courts  to 
have  its  findings  enforced.  Interstate  Com- 
merce Commission  v.  Detroit,  G.  H.  &•  M. 
R.  Co.,  57  Fed.  Rep.  1005,  4  /;//.  Coin.  Rep. 
722. 

Where  application  has  been  made  to  a 
federal  court  to  enforce  an  order  of  the 
commission,  forbidding  an  unjust  discrim- 
ination in  rates,  the  order  should  be  en- 
forced, although  it  might  appear  that  differ- 
ence in  circumstances  might  make  some 
discrimination  justifiable,  where  it  appears 
that  the  rate  charged  is  unlawful,  and  the 
defendant  carrier  fails  to  show  what  would 
be  a  lawful  discrimination  under  the  cir- 
cumstances. Interstate  Commerce  Commis- 
sion V.  Texas  <S^•  /'.  A*.  Co.,  57  Fed.  Rep.  948, 
4  Int.  Com.  Rep.  408 ;  affirming  5 1  Am.  &^ 
Eitg.  R.  Cas.  33.  52  Fed.  Rep.  187,  4  Int. 
Com.  Rep.  114. 

The  commission  has  power  to  set  on  foot 
a  prosecution  in  the  federal  courts  against  a 
carrier  for  a  violation  of  its  orders;  but  this 
will  not  be  done  where  the  carrier  conforms 
to  the  rulings  of  the  commission  as  soon  as 
they  are  declared,  for  a  violation  before 
such  ruling  is  made,  where  it  acts  in  good 
faith  under  advice  of  counsel;  especially  in 
a  case  where  the  motive  of  the  complainant 
is  that  of  retaliation  for  a  fancied  wrong. 
S/atcr  V.  Northern  Pac.  R.  Co.,  2  Int.  Com. 
Rep.  243,  2  Int.  Com.  Com.  359. 

Where  the  commission  applies,  under  sec- 
tion 16  of  the  statute,  for  an  injunction  to 
restrain  a  lailroad  company  from  disobeying 
an  order  of  the  commission,  a  preliminary 


injunction  yhould  not  be  granted  after  the 
coming  in  of  the  company's  answer  denying 
all  ilie  facts  upon  which  the  order  of  the 
commission  is  based.  Interstate  Commerce 
Commission  v.  Lehigh  I  'alley  R.  Co. ,  49  I'ed. 
Rep.  177,  lint.  Com.  Rep.  796.— Folluwing 
Kentucky  &  I.  Bridge  Co.  v.  Louisville  &  N. 
K.  Co.,  37  Fed.  Kep.  567. 

13.  Complaints  and  Adjudications, 

150.  Who  niii)'  file  voniphiiiitN.*— 

It  is  not  necessary  that  a  person  making  a 
complaint  before  the  commission  should 
have  a  personal  interest  in  the  violation  of 
the  statute  complained  of;  but  it  is  suffi- 
cient if  he  complains  of  a  matter  which 
amounts  to  a  public  grievance,  Boston  &^ 
A.  R.  Co.  V.  Roslon  &*  L.  R.  Co.,  i  Int.  Com. 
Rep.  571,  I  Int.  Com.  Com.  158. 

The  commission  will  not  entertain  a  com- 
plaint by  a  ticket  broker  oi  unjust  discrimi- 
nation on  the  part  of  a  railroad  in  allowing 
one  person  to  sell  a  ticket  and  not  another, 
where  it  appears  that  the  ticket  broker  has 
no  personal  interest  in  the  transaction.  As 
an  evidence  of  good  faith  the  complaint 
should  be  made  by  the  holder  of  the  ticket. 
Ottinger  v.  .Southern  Pac.  R.  Co.,  I  Int.  Com. 
Rep.  607,  I  /;//.  Com.  Com.  144. 

Under  the  provision  of  the  statute  that 
"  no  complaint  shall  at  any  time  be  dismissed 
because  of  the  absence  of  direct  darnagc  to 
complainant,"  a  defendant  is  not  entitled  to 
have  a  complaint  made  by  commission  mer- 
chants dismissed  on  the  ground  that  the 
rate  complained  of  works  no  direct  injury 
to  them,  /antes  v.  Canadian  Pac.  R.  Co.,  5 
/;//.  Coin.  Com.  612,  4  /;//.  Com.  Rep.  274. 

Complainant, a  miner  and  shipper  of  coal, 
complained  of  a  preference  in  the  rates 
given  for  the  carriage  of  coal.  The  com- 
pany set  up  as  a  defense  that  complainant 
was  not  entitled  to  be  heard  because  he  had 
entered  into  a  contract  with  the  defendant 
before  the  passage  of  the  statute  by  which 
the  rates  were  determined.  Held,  that  such 
contract  would  not  prevent  complainant 
from  showing  that  such  rates  are  unjust, 
onpressive,  or  unreasonable.  Haddock  v. 
Delaware,  L.  &>  IV.  R.  Co.,  3  Int.  Com.  Rep. 
"pi,  4  /;//.  Com.  Com.  296. 

"  The  Boston  Fruit  &  Produce  Exchange." 
a  corporation,  comes  within  section  13  I'f 
the  statute,   providing  that  "any  person, 

*  Complaints  under  Interstate  Commerce  Act. 
see  note,  2  L.  R.  A   446. 


firm,  corpora 
mercantile,  aj, 
society,"  may 
of  the  statut 
maintain  a  co 
place  without ; 
Boston  F.  &••  J 
E.  R.  Co. ,  3  In 
Com.  664. 

151.  Colli]] 
by  evidence. 
unsupported  b 
ize   the  comni 
against  a   defc 
.sy.  j\-iil,M.  &. 
ii)2,  I  ////.  Com 
Wliere  the  p 
of  fact,  and  no 
plaint  will  be  di 
Pac.  R.  Co..  I  /; 
Com.  1S5.     Rici 
5  ////.  Com.  Com 
Where  the  ev 
grounds  of  a  vi( 
upon,  but  shows 
of  the  line  impn 
commission  will 
separate  proceec 
opportunity  to 
Assoc.  V.  ChicaA 
Com.  Rep.  48,  2 
152.    Proee 
l'ail.s  to  an.<«u'< 
filed  by  aggriev 
13.  and  the  defei 
or  make  any  dc 
proceed  to  take 
proper  and  reast 
order  as  the  nati 
demand.   Tecum. 
/■&-AI.R.  Co., 
Com.  R,p,  .,,8. 

'"»3.   Com  pi 

n<'f  com  plain 

A  complaint  cha 

customed  to  mal 

weight  of  wheat 

whereby   persons 

loss,  but  failing 

was  delivered  for 

or  indeed  any  ti 

suflicient  and'wi 

but  without  preji 

^-  ^'-  Co.,  2  Int. 

^oni.  28  r. 

.  And  a  charge 
•nterstate  carrier 


INTERSTATE   COMMERCE,  151-155. 


51 


firm,  corporation,  or  association,  or  any 
mercantile,  agricultural,  or  manufacturing 
society,"  may  file  complaints  of  a  violation 
of  the  statute ;  and  such  exchange  may 
maintain  a  complaint  affecting  rates  to  its 
place  without  showing  any  damage  to  itself. 
Boston  F.  &^  P.  Exch.  v.  AVw  I  'ork  &*  N. 
E.  R.  Co. ,  3  /«/.  Cow.  Kep.  604,  4  ////.  Com. 
Com.  664. 

151.  Complaint  must  be  .siippurtcd 
by  evidence. — A  mere  naked  complaint, 
unsupported  by  evidence,  does  not  author- 
ize the  commission  to  make  any  order 
aj^ainst  a  defendant  carrier.  Holbrook  v. 
.S'/.  t\'ul,  M.  &•  M.  A'.  Co.,  I  /;//.  Com.  Com. 
102,  I  Int.  Com.  Rep.  323. 

Where  the  pleadings  present  only  issues 
of  fact,  and  no  evidence  is  offered,  the  com- 
plaint will  be  dismissed.  Leonard  \.  Union 
Pac.  R.  Co.,  I  Int.  Com.  Kep.  627,  i  Int.  Com. 
Com.  185.  Rice  v.  St.  Louis  S.  IV.  R.  Co., 
5  flit.  Com.  Com.  660,  4  ////.  Com.  Rep.  321. 

Where  the  evidence  fails  to  establish  the 
grounds  of  a  violation  of  the  statute  relied 
upon,  but  shows  that  upon  another  portion 
of  the  line  improper  rates  were  charged,  the 
commission  will  investigate  the  matter  in  a 
separate  proceeding,  giving  the  parties  an 
opi)ortuniiy  to  be  heard.  Business  Men's 
Assoc.  V.  Chicago  &*  N.  W.  R.  Co.,  2  Inl. 
Com.  Rep.  48,  2  Int.  Com.  Com.  73.    . 

152.  Proceedlugs  where  carrier 
fails  to  answer. — Where  a  complaint  is 
filed  by  aggrieved  shippers  under  section 
13,  and  the  defendant  carrier  fails  to  a  iswer 
or  make  any  defense,  the  commission  will 
proceed  to  take  such  proofs  as  it  may  deem 
proper  and  reasonable,  and  will  make  such 
order  as  the  nature  of  the  case  may  seem  to 
demand.  Tecumseh  Celery  Co.  v.  Cincinnati, 
J.  (S-  M.  R.  Co.,  5  Int.  Com.  Com.  663,  4  ////. 
Com.  /iV/.  ■^iS. 

15.*).  C«»mplaint  niUHt  sliow  that 
net  complained  of  is  interstate.— 
A  complaint  charging  that  a  carrier  was  ac- 
customed to  make  deductions  from  the  true 
weight  of  wheat  delivered  at  its  elevators, 
whereby  persons  delivering  it  suffered  a 
loss,  but  failing  to  charge  that  the  wheat 
was  delivered  for  interstate  transportation, 
or  indeed  any  transportation  at  all,  is  in- 
sufficient and  will  be  dismissed  on  motion, 
but  without  prejudice.  White  v.  Afichii^an 
C.  A'.  Co.,  2  Int.  Com.  Rep.  641,  3  Int.  Com. 
Com.  281. 

And  a  charge  that  the  defendant  is  an 
interstate  carrier,  subject  to  the  statute,  is 


not  sufRcient,  without  showing  t'.iat  the 
wheat  delivered  was  for  interstate  carriage. 
White  V.  Michigan  C.  R.  Co.,  2  Int.  Com. 
Rep.  641,  3  Int.  Com.  Com.  281. 

154.  Complaint  against  a  classifi- 
cation committee.— Plaintiff,  a  dealer 
and  shipper,  complained  of  a  classification 
made  by  a  classification  committee,  which 
represented  about  seventy-five  railroads  in 
making  classifications,  but  not  in  making 
rates.  It  appeared  that  many  of  the  roads 
made  their  own  rates  and  were  not  bound 
to  accept  the  classification  rates  made  by 
the  committee?.  Heid,  that  the  various  car- 
riers themselves  were  the  proper  ones  to 
proceed  against,  and  that  the  complaint 
should  specify  the  ones  maintaining  the  ob- 
jectionable rates.  McMillan  v.  Western 
Classification  Committee,  3  Int.  Com.  Rep. 
282,  4  ////.  Com.  Com.  276. 

In  such  case  the  commission  will  not  in- 
stitute an  investigation  of  its  own,  under 
section  12  of  the  statute,  where  it  appears 
that  all  of  the  carriers  of  the  country  are 
working  through  a  committee  to  reach  a 
uniform  classification  of  freights,  where  it 
might  have  the  effect  of  retarding  their 
work.  McMillan  v.  Western  Classification 
Committee,  3  Int.  Com.  Rep.  282, 4  /;//.  Com. 
Com.  276. 

In  such  case,  the  commission  will  aid  the 
parties  by  an  informal  hearing,  and  endeavor 
fairly  and  justly  to  adjust  their  differences  ; 
but  if  this  cannot  be  done,  the  commission 
will  not  proceed  with  any  investigation  un- 
til a  complaint  is  filed  in  proper  form,  em- 
bracing the  different  localities,  dealers,  and 
carriers  interested.  McMillan  v.  Western 
Classification  Committee,  3  Int.  Com.  Rep. 
282,  4  Int.  Com.  Com.  276. 

155.  Procedure  as  to  abstract, 
collateral,  and  ex  parte  questions. — 
The  commission  only  expresses  opinions 
when  a  controversy  is  pending,  involving  a 
violation  of  the  statute.  It  does  not  lend 
its  aid  to  parties  by  expressing  opinions  on 
abstract  questions,  or  on  ex  parte  state- 
ments of  the  facts,  or  upon  questions  merely 
presented  for  the  purpose  of  gaining  a  con- 
struction of  the  statute.  In  re  Order  of 
Railway  Conductors,  \  Int.  Com.  Com.  8,  i 
////.  Com.  Rep.  18. 

Carriers  must,  in  the  first  instance,  deter- 
mine questions  for  themselves,  and  then  the 
question  can  be  brought  before  the  com- 
mission whether  they  violated  the  statute, 
and  it  will  have  jurisdiction  to  decide  the 


i  11 


63 


INTERSTATE  COMMERCE,  150-100. 


'    I 


questions  involved.  In  re  Onkr  of  Rail- 
way Conductors,  i  Int.  Com.  Com.  8,  i  Int. 
Coin.  Ki'p.  1 8. 

Where  the  evidence  introduced  raises  a 
collateral  question  as  to  wliether  the  statute 
has  been  violated  outside'  of  the  issues  pre- 
sented, a  new  proceeding  will  be  instituted, 
:ind  such  collateral  question  not  decided 
until  all  the  parties  have  been  heard.  Busi- 
ness Men's  Assoc,  v.  Chicago  &>  N.  W.  R.  Co., 
2  Int.  Com.  Rep.  48.  2  ////.  Cotn.  Com.  73- 

A  question  involving  correct  weights  of 
freights  and  shipments  is  one  of  fact,  to  be 
di'termined  in  a  manner  just  to  both  parties, 
and  as  to  which  the  ex  parte  action  of  either 
Ciinnot  conclude  the  other.  Potter  Mfg. 
Co.  V.  Chicago  <&-  G.  T.  R.  Co.,  5  Int.  Com. 
Com.  514,  4  Int.  Com.  Rep.  223. 

14.  Proceeditigs  in  United  States  Courts.* 

150.  Jurisdiction  of  U.  S.  circuit 
courts  at  law  and    in    equity.— The 

right  asserted  by  a  petitioner  in  asking  a 
federal  court  to  enforce  an  order  of  the  in- 
terstate commerce  commission  arises,  and 
is  claimed,  under  a  law  of  the  United  States, 
relating  to  a  subject  matter  over  which 
congress  lias  exclusive  control ;  and  tliis  is 
sufficient  to  sustain  the  court's  jurisdiction, 
independent  of  the  citizensliip  of  the  par- 
ties. Kentucky  &•  I.  Bridge  Co.  v.  Louisville 
(S-  N.  li.  Co.,  yj  Fed.  Rep.  567,  2  /..  R.  A. 
289,  2  Int.  Com.  Rep.  351.— Followed  in 
Interstate  Commerce  Commission  v.  Lehigh 
Valley  R.  Co.,  49  Fed.  Rep.  177  ;  Interstate 
Commerce  Commission  v.  Atchison,  T.  & 
S.  F.  R.  Co.,  50  Am.  &  Eng.  R.  Cas.  93,  50 
Fed.  Rep.  ?.<)t).—  Toleiio,  A.  A.  &*  N.  M.  R. 
Co.  V.  Pennsylvania  R.  Co.,  53  Am.  &*  Eng. 
R.  Cas.  307,  54  Fed.  Rep.  730.— Following 
Pettibone  7>.  United  States,  148  U.  S.  197. 

157.  Jurisdiction  of  circuit  courts 
to  enforce  subpoenas  of  commission. 
— That  part  of  §  12  authorizing  circuit 
courts  to  make  orders  enforcing  subpoenas 
issued  by  the  commission  is  unconstitutional, 
so  far  as  it  authorizes  the  courts  merely 
to  aid  an  investigation  before  the  com- 
mission. In  re  Interstate  Commerce  Com- 
mission, 53  Am.  &*  Ettg.  R.  Cas.  i,  53  Fed. 
Rep.  476,  4  Int.  Com.  Rep.  315  ;  reversed  in 
154  U.  S.  447,  14  Sup.  Ct.  Rep.  1125.  — FOL- 

*  Removal  of  causes  to  federal  court  under 
Interstate  Commerce  Act.  When  a  federal 
question  is  raised,  see  46  Am.  &  Enu.  R.  Cas. 
636.   -bslr. 


LOWED    IN   Re  Interstate  Commerce  Com- 
mission, 53  Fed.  Rep.  481. 
158.  Jurisdiction  of  state  courts. 

— A  party  who  seeks  damages  alleged  to 
have  been  sustained  in  consequence  of  the 
violation  of  a  common  carrier,  of  the  Inter- 
state Commerce  Law,  as  tiie  act  provides  for 
redress  by  procedure  either  before  the  com- 
mission or  by  suit  before  the  federal  court, 
cannot  bring  suit  before  the  state  couit, 
whicli  is  without  jurisdiction  to  enforce  tlie 
right,  but  is  relegated  exclusively  to  the 
commission  or  the  federal  court ;  otherwise, 
tiie  party  would  have  a  third  alternative  or 
mode  of  redress,  not  contemplated  by  the 
act,  by  which  he  is  restricted  to  one  of  two 
remedies.  Copp  v.  Louisville  &•  N.  R.  Co., 
46  Am.  &*  Eng.  R.  Cas.  634,  43  La.  Ann. 
511,  9  5(;.  Rep.  441. 

151>.  When  remedy  is  by  applica- 
tion to  court- Receivers.— Where  the 
property  of  a  carrier  goes  into  the  hands 
of  a  receiver  after  the  acts  complained  of  be- 
fore the  commission,  the  question  whether 
such  property  is  subject  to  an  oider  of  rep- 
aration made  by  the  commission  must  be 
raised  in  the  federal  courts  on  an  applica- 
tion to  enforce  the  order.  Loud  v.  South 
Carolina  R.  Co.,  5  Int.  Com.  Com.  529, 4  /;//. 
Com.  Rep.  205. 

A  carrier  is  justified  in  making  a  higher 
rate  where  rapid  transit  is  required  in  llie 
shipment  of  perishable  freiglu,  such  as  fruit; 
and  where  such  extra  charge  is  made,  and 
the  rapid  transit  is  not  furnished,  whereby  a 
shipper  sustains  a  loss,  the  true  remedy  is 
an  action  for  damages,  rather  than  an  appli- 
cation to  the  commission  for  lower  rates. 
Loud  V.  South  Carolina  R.  Co. ,  5  Int.  Com. 
Com.  529,  4  Int.  Com.  Rep.  205. 

100.  Nature  of  tlie  reme<ly.— The 
special  remedies  provided  by  the  Interstate 
Commerce  Act  art  cumulative,  and  not  ex- 
clusive of  the  general  lemedies given  by  the 
judiciary  act  conferring  jurisdiction  of  all 
suits  and  controversies  arising  under  an  act 
of  congress,  regardless  of  any  diversity  of 
citizenship  between  the  parties.  L/t/le 
Rock  &*  M.  R.  Co.  V.  East  Tenn.,  V.  &•  G. 
R.  Co.,  49  Am.  <S-  Eng.  R.  Cas.  23,  47  Fed. 
Rep.  771. 

A  suit  brought  by  the  interstate  commerce 
commission  in  the  United  States  circuit 
court  to  enforce  an  order  of  the  commission 
is  an  original  and  independent  proceeding. 
The  court  is  not  confined  to  a  mere  re-ex- 
amination of  the  case  as  heard  and  reported 


by  the  commiss 
deteitnines  tlie 
plead ini4S  and 
report  is  prinu 
ters  of  fact  the 
will  hear  all  su 
inony  as  either  | 
upon  the  matte 
permit  such  pic 
the  court  clear 
matters  as  may 
view  of  the  issi 
mercc  Commissi^ 
P.  R.  Co.,  54  A) 
Fed.  Rep.  925,  . 
versed  on  other  g 
582. 

101.  Necess 
ceeditig    under 
order  of  the  com 
carrier,  it  is  not 
rier,  making  the 
defendant,   be   n 
Commerce  Commi 
51  .Im.  &•  Eng.i 
4  /;//.  Com.  Rep 
Rip.  948,  4  Int.  C 
102.  What  II 
cecdinf^s  agaii 
tioti  10,  making  r 
wilful  violation  o 
to  allege  in  an  inc 
was  agent  of  a  c 
the  otTense  was  c 
of  a  certain  freig 
suffiriently  shows 
mitted  under  col 
and  it  is  not  nee 
that  the  unlawfu 
direction   or    au( 
l'ni/,d  States  v. 
/-    R.    A.  444,  ; 
versed  in  53  Am. 
lup.  917,  4  /«/.  c 
Will" re   a   cf)m 
agents  are  indict 
to  jjive  the  shippi 
of  collecting  a  ce 
ing  carrier,  and  ii 
ment  was  made 
general  freight  aj. 
tlie  fact  that  a  k 
defendant,  who 
that  there  was  soi 
shipments,  is   no 
criminally  liable, 
t'A'.  t;>.,43/.V,/.  y 


INTERSTATE   COMMERCE,   101-104. 


53 


by  the  commission,  but  the  court  hears  and 
determines  the  case  de  novo  upon  proper 
pleiuiings  and  proof.  The  commissioners' 
report  is  prima-facie  evidence  of  the  mat- 
ters of  fact  therein  reported,  but  the  court 
will  hear  all  such  otiier  and  further  testi- 
mony as  either  party  may  introduce  bearing 
upon  the  matters  in  controversy,  and  will 
permit  such  pleadings  as  will  bring  before 
the  court  clearly  and  in  legal  form  such 
matters  as  may  be  pertinent  and  proper  in 
view  of  the  issues  raised.  Interstate  Cotn- 
merce  Commission  v.  Cincinnati,  N.  O.  (S~»  T. 
P.  R.  Co.,  54  Am.  &^  Eng.  R.  Cas.  365,  56 
Fii/.  Rep.  925.  4  inf-  Com.  Rep.  332 ;  re- 
versed on  other  grounds  in  4  Int.  Com,  Rep. 
582. 

101.  Necessary  parties.— In  a  pro- 
ceeding under  section  16  to  enforce  an" 
order  of  the  commissioners  against  a  single 
carrier,  it  is  not  necessary  that  another  car- 
rier, making  the  forbidden  rate  jointly  with 
defendant,  be  made  a  party.  Interstate 
Commerce  Commission  v.  Texas  &*  P.  R.  Co., 
51  .Im.  <S-  Eng.R.  Cas.  33.  52  Fed.  Rep.  187, 
4  /;//.  Com.  Rep.  114;  affirmed  in  57  Fed. 
Rep.  948,  4  Int.  Com.  Rep.  408. 

102.  What  must  be  shown  iu  pro- 
cctMliiigs  against  atireiits. — Under  sec- 
tion 10,  making  railroad  agents  liable  for  a 
wilful  violation  of  the  statute,  it  is  sufficient 
to  allege  in  an  indictment  that  the  defendant 
was  iigent  of  a  certain  railway  at  the  time 
the  offense  was  committed,  and  had  charge 
of  a  certain  freight  office  of  the  road.  This 
sufficiently  shows  that  the  offense  was  com- 
mitted under  color  of  his  office  or  agency, 
and  it  is  not  necessary  to  allege  or  prove 
that  the  unlawful  act  was  done  under  the 
direction  or  authority  of  the  company. 
Unit  id  .States  v.  loser,  37  Fed.  Rep.  635,  2 
/.  A'.  A.  444,  2  Int.  Com.  Rep.  422  •  re- 
•i'cisi'd  in  53  Am.  &*  Eng.  R,  Cas.  14,  52  Fed. 
Rip.  917,  4  /;//,  Com  Rep.  245. 

Where  a  company  and  several  of  its 
agents  are  indicted  for  billing  goods  so  as 
to  sivc  the  shipper  a  rebate  under  pretense 
of  collecting  a  certain  charge  for  a  connect- 
ing carrier,  and  it  appears  that  the  arrange- 
ment was  made  through  the  company's 
general  freight  agent,  one  of  the  defendants, 
the  fact  that  a  local  freight  agent,  another 
defendant,  who  made  out  the  bills,  knew 
that  there  was  something  unusual  about  the 
shipments,  is  not  sufficient  to  make  him 
criminally  liable.  United  States  v.  Michigan 
f.  A'.  Co., 43  Fed.  Rep.  26.  3  Int.  Com.  Rep.  287. 


10.*).  Action  for  violation  of  longf 
nnil  hliort  haul  .section."^— If  two  rail- 

roiid  companies  by  agreement  make  a  joint 
tariff  over  tiieir  lines,  or  any  parts  of  their 
lines,  such  joint  tariflf  is  not  the  basis  by 
which  the  separate  tariff  of  eitlier  line  is  to 
be  measured  or  condemned,  under  the  long 
and  short  haul  clause.  Chicago  &*  N.  IV. 
R  Co.  v.  Osborne,  53  Am.  &•  Eng.  R.  Cas.  18, 
52  Fed.  Rep.  912,  4  Int.  Com.  Rep.  257  ;  re- 
versing 49  Am.  &>  Eng.  R.  Cas.  12,  47  Fed. 
Rep.  290,  48  Fed,  Rep.  49,  3  Int.  Cow.  Rep. 
663. 

It  is  not  necessary  for  either  of  two  con- 
necting lines  which  unite  in  a  joint  through 
tariff  to  publish  their  joint  tariff  at  a  non- 
competing  point,  or  to  volunteer  information 
of  such  tariff  to  shippers.  The  carrier  fulfils 
its  obligation  when  it  publishes  its  local 
tariff  and  advises  shippers  truthfully  in  re- 
spect to  any  rates  as  to  wliich  he  makes 
special  inquiry.  Chicago  &•  A.  II'.  R.  to. 
v.  Osborne,  53  Am.  &^  ^"g-  >'i'-  Cas.  iS,  52 
Fed.  Rep.  912,  4  Int.  Com.  Rep.  257  ;  revers- 
ing 49  Am.  &>  Eng.  R.  Cas.  12,  47  Fed.  Rep. 
290,  48  Fed.  Rep.  49,  3  Int.  Com.  Rep.  663. 

15.  Procedure  before  the  Commission, 

104.  Matters  of  proce<lure,  gen- 
erally.—Where  a  complaint  is  filed  charg- 
ing a  carrier  with  maintaining  excessive 
rates,  and  with  unjust  discrimination,  and 
the  company  answers  denying  unjust  dis- 
crimination, and  that  its  rates  are  very 
much  lower  than  the  complainant  supposed 
they  were,  and  a  copy  of  this  answer  is  sent 
to  the  complainant  with  notice  when  the 
case  will  be  heard,  if  he  fails  to  appear,  it 
will  be  presumed  that  he  is  satisfied  with  the 
answer,  and  the  complaint  will  be  dismissed. 
Jackson  v.  St.  Louis,  A.  &*  T.  R.  Co.,  i  Int. 
Com.  Rep.  599,  i  Int.  Com.  Com.  184. 

Where  an  important  question  is  raise'd  by 
the  pleadings  which  would  affect  other  per- 
sons beside  the  parties  to  the  record,  and 
the  parties  confine  their  evidence  to  other 
questions,  and  furnish  the  commission  with 
no  information,  it  will  not  decide  such  ques- 
tion, but  leave  it  open  for  further  considera- 
tion, if  the  parties  wish  again  to  bring  it 
forward.  Rice  v.  Louisnitle  &^  N.  R.  Co.,  i 
Int.  Com.  Rep.  722.  i  Int.  Com.  Com.  503. 

The  Act  of  the  Legislature  of  Florida,  of 
June  13,  1891,  repealing  the  law  creating  a 

*  Action  for  violation  of  lone  and  short  haul 
clause;  see  49  Am.  &  Eno.  R.  Cas,  32.  ithstr. 


,-ii 


54 


INTERSTATE   COMMERCE,  165-167. 


state  railroad  commission,  does  not  operate 
as  a  dismissal  or  withdrawal  of  a  complaint 
previously  filed  by  that  commission  before 
the  interstate  commerce  commission.  Rail- 
road Commission  of  Fla.  v.  Savannah,  F. 
6-  W.  li.  Co.,  3  /«/.  Com.  Rep.  688,  5  Int. 
Com.  Com.  1 3. 

The  commission  does  not  undertake  to 
report  evidence  which  is  only  cumulative 
or  which  is  immaterial  or  irrelevant,  or 
mere  details  of  evidence  already  embraced 
in  findings  of  fact.  Riddle  v.  Pittsburgh &* 
L.  E.  R.  Co.,  I  Int.  Com.  Rep.  773,  i  Int. 
Com.  Com.  490. 

Where  a  charge  of  excessive  rates  is 
made,  the  complainant  assumes  the  burden 
of  proof  to  sustain  tlie  charge.  Harding  v. 
Chicago,  St.  P.,  M.  6-  O.  R.  Co.,  i  Int.  Com. 
Rep.  375,  I  /nt.  Com.  Com.  104. 

Where  shippers  complain  of  unjust  dis- 
crimination, and  ask  that  pecuniary  dam- 
ages be  awarded  them,  a  claim  for  damages 
will  not  be  entertained,  where  it  presents  a 
case  at  common  law  in  which  the  defend- 
ants are  entitled  to  a  jury  trial.  Heei'  v. 
East  Tenn.,  V.  &*  G.  R.  Co.,  i  Int.  Com. 
Ri-t>  775,  I  Int.  Com.  Com.  495. 

165.  Necessary  parties.— Where  a 
carrier  is  directly  interested  in  an  investiga- 
tion, and  the  matter  complained  of  is  such 
that  the  carrier  is  responsible  for  it  in  whole 
or  in  part,  and  the  merits  of  the  controversy 
cannot  be  investigated  in  the  absence  of 
such  party,  then  it  should  be  made  a  party 
to  the  proceeding.  Riddle  v.  Pittsburgh  Sf' 
L.  E.  R.  Co.,  I  Int.  Com.  Rep.  773,  i  Int. 
Com.  Com.  490. 

In  a  proceeding  against  an  initial  carrier 
to  correct  a  classification  of  through  freights, 
it  is  better  to  make  all  the  carriers  parties ; 
but  the  proceeding  is  not  necessarily  defect- 
ive because  only  the  initial  carrier  is  made 
a  pahy.  Hurlbnrt  v.  Lake  Shore  (S^  M.  S. 
R.  Co.,  2  Int.  Com.  Rep.  81,  2  Int.  Com.  Com, 
122. 

Where  it  appears  that  other  carriers  are 
committing  the  same  violation  of  the  stat- 
ute charged  against  the  defendants,  an  order 
may  issue  against  the  defendants,  and  the 
case  be  continued  for  the  purpose  of  bring- 
ing in  the  other  carriers  for  like  proceed- 
ings against  them.  Bates  v.  Pennsylvania 
R.  Co.,  2  Int.  Com.  Rep.  715,  3  Int.  Com. 
Com.  435. 

1 66.  ReheariiiKS.— An  order  for  a  re- 
hearing which  involves  considerable  expense 
to  the  parties  will  not  be  granted  unless  the 


commission  is  satisfied  at  the  argument  for 
a  rehearing  that  the  result  might  be 
changed.  Riddle  v.  Pittsburgh  6-  L.  E.  R. 
Co.,  I  Int.  Com.  Rep.  773,  i  Int.  Com.  Com. 
490. 

Where  the  commission  has  fully  investi- 
gated a  matter  on  elaborate  pleadings  and 
proofs,  a  rehearing  will  not  be  granted  on 
the  application  of  third  parties;  but  if  a 
new  complaint  is  filed,  if  it  should  be  made 
to  appear  that  any  decision  made  was  erro- 
neous, the  commission  will  correct  it.  /// 
re  Toledo  Produce  Exch.,  2  ////.  Com.  Rep. 
412,  lint.  Com.  Com.  588. 

Where  a  petition  asking  for  a  rehcarinsj 
is  filed  after  a  case  has  been  decided  it 
should  be  verified,  and  should  indicate 
the  purpose  and  tlie  nature  of  the  new  evi- 
dence. Rice  v.  Western  N.  V.  6-  /'.  A". 
Co.,  2  Int.  Com.  Rep.  496,  3  /;//.  Com.  Cow. 

87.   ' 

But  where  a  question  of  general  pnblii 
interest  is  involved,  the  commission  may  of 
its  own  motion  open  a  case  to  give  the  par- 
ties a  more  extended  investigation.  Ricew 
Western  N.  V.  &'  P.  R.  Co.,  2  Int.  Com. 
Rep.  496,  3  Int.  Com.  Com.  87, 

A  petition  asking  for  a  rehearing  should 
show  prima  facie  some  errors  in  the  find- 
ings or  conclusions,  or  that  some  material 
evidence  had  been  overlooked  or  misappre- 
hended. Myers  v.  Pennsylvania  Co.,  2  ////. 
Com.  Rep.  544,  3  Int.  Com.  Com.  130.  Proc- 
tor V.  Cincinnati,  H.  (S~»  D.  R.  Co.,  4  /;//. 
Com.  Com  443,  3  Int.  Com.  Rep.  131. 

And  where  an  application  for  a  rehearing 
does  not  embrace  the  al)ove  requirements, 
but  only  asks  a  reconsideration  of  the  same 
questions  of  fact  and  of  law,  without  any 
offer  of  new  evidence,  the  application  will 
be  denied.  Myers  v.  Pennsylvania  Co.,  2 
Int.  Com.  Rep.  544,  3  ////.  Com.  Com.  130. 

A  former  order  made  by  the  commissJDii 
may  be  vacated  when  the  additional  evi- 
dence at  a  rehearing  warrants  a  contrary 
finding.  Hates  v.  Pennsylvania  R.  Co.,  3 
Inf.  Com.  Rep.  296,  4  ////.  Com.  Com.  281. 

167.  Amendnients— Iteplicatioiis. 
— In  considering  complaints  and  amend- 
ments thereto,  the  commission  acts  upon 
the  same  rules  that  applied  in  ordinary 
courts  of  justice  ;  and  an  amendment  intro- 
ducing a  new  cause  of  action  will  not  be 
allowed.  Riddle  v.  Baltimore  &*  O.  R.  Co., 
I  Int.  Com.  Rep.  701,  i  ////.  Com.  Com.  372. 

It  is  not  necessary  to  amend  the  plead- 
ings in   order  to  introduce  any  evidence 


INTERSTATE   COMMERCE,  108-170. 


55 


that  is  admissible  under  the  original  com- 
plaint. Delaware  State  Grange  v.  New 
York,  P.  &*  N.  K.  Co.,  2  Int.  Com.  Rep.  187, 

2  Int.  Com.  Com.  309. 

Under  the  rules  adopted  by  the  commis- 
sion, a  proceeding  is  at  issue  upon  tlie  com- 
plaint and  answer ;  and  a  replication  is 
neither  required  nor  allowed.  .  egon  Short 
Line  R.  Co.  v.  Northern  Pac.  R.  Co.,  2  Int. 
Com.  Rep.  639,  3  Int.  Com.  Com.  264. 

108.  SiibiMKiias  (luces  teeiiiii.— In 
laying  down  rules  fcr  the  issuing  of  process 
to  compel  the  production  of  books  and 
papers,  the  commission  has  considered  the 
practice  in  the  federal  courts,  and  the  rules 
indicated  by  federal  statutes  in  proceedings 
which  seem  to  be  most  nearly  analogous. 
A'/ce  V.  Cincinnati,  IV.  &*  B.  R.  Co.,  2  Int. 
Com.  Rep.  584,  3  //;/.  Com.  Com.  1 86. 

In  the  federal  courts  the  practice  is  for 
an  application  for  a  subpoena  duces  tecum, 
to  be  made  to  the  court  or  the  judge  by 
petition,  supported  by  affidavit,  unless  the 
petition  be  anofficial  statement  of  a  district 
iir  iiiey.  or  other  prosecuting  public  officer, 
of  the  facts  therein  alleged ;  and  the  peti- 
tion must  describe  the  books  or  papers 
callcfl  for  with  that  degree  of  certainty 
wliich  is  practicable,  considering  the  cir- 
cumstances of  the  case,  so  that  the  witness 
may  know  what  is  wanted  of  liim  and  to 
have  the  books  and  papers  at  the  trial. 
Rice  V.  Cincinnati,  IV.  &>  B.  R.  Co.,  2  Int. 
Com.  Rep.  584,  3  Int.  Com.  Com.  186. — Fol- 
lowing United  States  v.  Babcock,  3  Dill. 
(U.  S.)  566. 

Under  the  Revised  Statute  of  the  United 
States,  section  869,  a.prima-/acie  case  must 
be  made  to  the  effect  that  "  the  paper,  writ- 
ing, written  instrument,  book,  or  document 
is  in  the  possession  or  power  of  the  witness, 
and  that  the  same,  if  produced,  will  be 
competent  and  material  evidence  for  the 
p^iriy  applying  therefor,"  before  the  sub- 
poena duces  tecum  is  issued.  Rice  v.  Cincin- 
nati. IV.  &^  P.  R.  Co.,  2  Int.  Com.  Rep.  5e4, 

3  Int.  Com.  Com.  186. 

In  proceedings  before  the  commission, 
where  it  is  sought  to  compel  parties  who 
are  not  carriers,  subject  to  the  regulation  of 
the  statute,  or  who  are  strangers  to  the 
proceeding,  to  produce  books,  papers,  or 
documents,  ai)|>Iir;ition  should  be  make  in 
writing  to  the  commissioh,  specifying  as 
nearlv  as  may  be  the  books,  papers,  or 
documents  desired  to  be  produced,  accnm- 
paniiMl  by  an  affidavit  that  they  are  in  the 


possession  of  the  witness  or  under  his  con- 
trol, and  setting  forth  facts  whicli  make  a 
prima-facie  case  that  they  contain  evidence 
that  IS  material  and  necessary.  Ricc\.  Cin- 
cinnati, W.  &*  />'.  R.  Co.,  2  Int.  Com.  Rep. 
584,  3  Int.  Com.  Com.  186. 

And  wliere  the  application  is  for  the  pro- 
duction of  books  or  papers  of  third  parties, 
the  application  may  be  denied,  where  it  ap- 
pears that  injustice  might  be  done  such 
parties  by  the  production  of  such  books  or 
papers.  Haddock  v.  Delaware,  L.  Sf  IV.  R. 
Co.,  3  Int.  Com.  Rep.  302,  4  Int.  Com.  Com. 
296. 

109.  Proceedings  ajraiiist  receiv- 
ers.—Where  a  complaint  is  against  a  rail- 
road company  and  alleges  that  it  had  been 
in  the  hands  of  a  receiver,  but  had  been  re- 
stored to  the  company,  an  error  in  calling 
the  receiver  the  president  of  the  company 
may  be  corrected  by  an  amendment,  show- 
ing the  existence  of  the  receivership,  where 
the  complaint  has  been  served  on  the  re- 
ceiver, and  an  answer  has  been  tiled  by  the 
company.  Reynolds  v.  Western  N.  V.  &» 
P.  R.  Co.,  I  Int.  Com.  Com.  347,  i  Int.  Com. 
Rep.  685. 

Where  the  proceeding  before  the  com- 
mission is  merely  for  the  purpose  of  regu- 
lating charges,  the  fact  that  the  road  passes 
into  the  hands  of  a  receiver  after  the  com- 
plaint is  filed  is  no  reason  for  stopping  the 
proceeding,  especially  where  the  company 
answers  on  its  own  behalf,  and  the  receiver 
appears  by  counsel  at  the  hearing.  Tram- 
mel/ v.  Clyde  Steamship  Co.,  5  Int.  Com. 
Com.  324,  4  /;;/.  Com.  Rep.  1 20. 

Under  such  facts  the  proceeding  may  go 
on  without  determining  whither  a  regulat- 
ing order  would  affect  the  receivers  without 
an  order  of  the  court  which  appointed 
them.  As  a  general  proposition  the  com- 
mission sees  no  reason  why  the  fact  of  a 
receiversliipsubsequent  to  (■f)mplaint  should 
interfere  with  the  progress  (^f  a  proceeding 
merely  to  regulate  charyes  Trammell  v. 
Clyde  Steamship  Co.,  5  Int.  Com.  Com.  324, 
4  Int.  Com.  Rep.  120. 

170.  Wlieii  rate  complained  of  is 
correct<Ml  before  or  pending  pro- 
ceed iiijjs.— If  a  carrier  corrects  the  mat- 
ters complained  of  at  any  stage  of  the  pro- 
ceedings before  the  commission  renders  a 
final  opinion,  so  as  to  conform  to  the  relief 
prayed  for,  the  commission  will  make  no 
order  and  render  no  opinion.  Manufactur- 
ers &*  J.  Union  v.  Minneapolis  &*  St.  L.  R. 


>,'V 


5G 


INTERSTATE   COMMERCE,  171-174. 


■ 

-MB 


Co.,  I  /«/.  Com.  Rep.  630,  i  Int.  Com.  Com. 
227.  Lincoln  Board  of  Trade  v.  Union  Pac. 
A\  Co..  2  Int.  Com.  Ref>.  lot,  2  Int.  Com. 
Com.  229.  Harris  v.  Duval,  2  Int.  Com. 
Rep.  514,  3////.  Com.  Com.  128.  Xew  Or- 
leans Cotton  E.vch.  v.  Louisville,  N.  O.  &*  T. 
R.  Co.,  3  Int.  Com.  Rep.  523,  4  Int.  Com. 
Com.  694. 

The  statute  contempl.ites  that  when  a 
complaint  is  made  the  carrier  may  change 
its  rates  before  a  hearing  is  had,  so  as  to 
remedy  the  matter  complained  of,  if  it  shall 
See  pro[)er  to  do  so ;  in  which  case,  if  there 
is  no  complaint  against  tlie  modified  rateSi 
and  there  is  nothing  to  show  that  they  are 
unreasonable,  the  complaint  will  be  dis- 
misseti.  Fulton  v.  Chicago,  St.  P.,  M.  &^  O. 
R.  Co.,  I  Int.  Com.  Rep.  375,  i  Int.  Com, 
Com.  104. 

Where  a  complaint  is  made  of  a  failure  to 
furnish  cars,  and  the  railroad  answers,  and 
avows  a  purpose  to  comply  with  the  law,  it 
must  be  assumed  that  it  will  do  so,  and  it  is 
doing  so,  until  there  is  evidence  to  the  con- 
trary. Holbrook  v.  St.  Paul,  M.  (3-  M.  R. 
Co.,  I  Int.  Com.  Com.  102,  i  Int.  Com.  Rep. 

323- 

And  no  order  will  be  made  where  a  tariff 
complained  of  was  abandoned  by  the  car- 
riers for  a  long  time  before  the  complaint 
was  made,  and  shortly  after  the  tariff  was 
put  in  force.  Rawson  v.  Newport  News  &* 
M.  V.  Co..  2  Int.  Com.  Rep.  626,  3  Int.  Com. 
Com.  266. 

And  no  opinion  will  be  expressed  in  such 
case,  even  though  the  parties  request  it. 
Pennsylvania  Co.  v.  Louisville,  N.  A.  &*  C. 
R.  Co.,  2  Int.  Com.  Rep.  603,  3  Int.  Com. 
Com.  223. 

171.  Itofiiiidiiif;  excessive  rate.— 
Where  a  passenger  has,  under  a  mistake 
of  facts,  bought  two  tirkets  for  a  continu- 
ous ride,  where  he  ;night  have  bought  a 
through  ticket  at  a  less  sum,  the  commis- 
sion will  order  a  return  of  the  excess,  though 
it  appear  thnt  the  two  charges  were  regular 
local  rates,  and  that  the  carriers  acted  in 
good  faith,  without  any  intention  of  mis- 
leading or  defrauding  the  complainant. 
Sanger  v.  Southern  Pac.  Co.,  2  Int.  Com.  Rep. 
548,  3  /;//.  Com.  Com.  134. 

Where  it  appears  that  the  question  of 
whether  a  carrier  should  refund  a  portion 
of  an  alleged  unlawful  rnte  is  pending  in  a 
federal' court,  the  comni..,sion  will  not  take 
cognizance  of  the  matter.  Harris  v.  Duval, 
2  Int.  Com  Rep.  514,  3  Int.  Com.  Com.  128. 


172.  Estoppel. — The  doctrine  of  es- 
toppel of  record  is*  not  applicable  to  parties 
who  appear  before  the  commission.  It  is 
applied  to  the  records  and  judgments  of 
courts ;  but  the  commission  is  not  a  court. 
Toledo  Produce  E.vch.  v.  Lake  Shore  &*  M.  S. 
R.  Co.,  3  ////.  Com.  Rep.  830,  5  ////.  Com.  Com. 
166. 

A  person  who  appears  before  the  com- 
mission as  a  member  of  a  committee  which 
represents  a  mercantile  assfjciation,  and 
institutes  proceedings  which  are  afterward 
dismissed,  is  not  thereby  estopped  from 
instituting  a  similar  proceeding  in  his  own 
name.  Toledo  Produce  E.vch.  v.  Lake  Shore 
&•  M.  S.  R.  Co.,  3  ////.  Com.  Rep.  830,  5  Int. 
Com.  Com.  166. 

173.  Witnesses  not  Imiind  to  crim- 
inate tlieniselves. — A  person  under  ex- 
amination before  a  grand  jury,  in  an  investi- 
gation into  certain  alleged  violations  of  the 
Interstate  Commerce  Act,  is  not  obliged  to 
answer  questions  where  he  states  that  his 
answers  might  tend  to  crimii>ate  him  ;  the 
witness  in  such  a  case  may  invoke  the  pro- 
tection of  the  fifth  amendment  to  the  con- 
stitution of  the  United  States,  which  de- 
clares that  "  no  person  *  *  ♦  shall  be  com- 
pelled in  any  criminal  case  to  be  a  witness 
against  himself,"  although  section  860  of 
the  U.  S.  Revised  Statutes  provides  that 
no  evidence  given  by  him  shall  in  any  man- 
ner be  used  against  him  in  any  court  of  the 
United  States  in  any  criminal  proceeding. 
The  object  of  such  constitutional  provision 
is  to  insure  that  a  person  shall  not  be  com- 
pelled, when  acting  as  a  witness  in  any  in- 
vestigation, to  give  testimony  which  may 
tend  to  show  that  he  himself  has  committed 
a  crime :  the  protection  of  the  provision  is 
not  limited  to  a  criminal  prosecution  against 
the  witness  himself.  Couttselman  v.  Hitch- 
cock, 48  Am.  (S-  Eng.  R.  Cas.  448,  142  U.  S. 
547,  12  Sup.  Ct.  Rep.  195  ;  reversing  44  Fed. 
Rep.  268. 

16.  Reparation. 

174.  Power  of  eoniinissiou  to  pass 
on  questions  of  reparation. — Since  the 
amendment  of  March  2,  1889,  of  section  16, 
providing  for  a  trial  by  jury  in  proceedings 
to  enforce  the  orders  of  the  commission,  it 
is  the  duty  of  the  commission  to  pass  on 
questions  of  reparation  for  past  damages 
whenever  such  questions  shall  be  raised. 
Macloon  v.  Chicago  &*  N.  IV.  R.  Co.,  3  Int. 
Com.  Rep.  711,  5  Int.  Com.  Com.  84. 


1  75.  Bu 

C()in|)iaint  is 
ii  (lain)  for  r 
of  proof  is  < 
the  claim  ;  ai 
to  award  rej 
dence  is  inti 
mine  what 
Florida  C.  <S 
740,  5  Int.  Co 

170.  Met 
to  determine 
be  made  by 
commission  r 
wiiat  is  a  reas 
C&-P.R.  C 
Com.  Com.  97 

In  cases  of 
the  measure  r 
party  is  thedi 
ally  charged  i 
should  have  I 
ida  C.&'P.  I 
Int.  Com.  Com 

17.  Mileage,  1 

177.    Geii 

section  22  thi 
"to  the  issua 
commutation 
such  tickets,  h 
tially  and  at  r 
Chicago  &•  G 
369,  I  Int.  Cot. 
And  the  ra 
required  of  ot 
Tariffs,  2  Ini 
Com.  649. 

The  unlawf 
and  3  consists 
in.iiioii  "   or 
preference  or 
l)r()vision   of 
not  prevent  is 
to  certain  cla 
iiot   follow   tl 
classes  of  pen 
illation  may  b 
nation  being 
Commission  v 
(■■  S.  263,  12 
Rep.  92;  a^r 
Com.  Rep.  192 
The   provis 
unjust  discrir 
the  giving  of 


INTERSTATE   COMMERCE,  175-1 70. 


57 


175.  Burden  of  proof. — Where  the 

c()iii|>laint  is  against  unreasonable  rates  and 
ii  ( laini  for  reparation  is  made,  the  burden 
of  proof  is  on  tiie  complainant  to  support 
tlic  claim  ;  and  the  commission  will  refuse 
to  award  reparation  unless  sufBcient  evi- 
dence is  introduced  to  enable  it  to  deter- 
ininc  what  reparation  is  due.  Perry  v. 
Fhrida  C.  &•  P.  R.  Co.,  3  Int.  Com.  Rep. 
740,  5  Int.  Com.   Com.  97. 

170.  Measureof  (laninges.— In  order 
to  determine  the  amount  of  reparation  to 
be  made  by  charging  excessive  rates,  the 
commission  must  in  all  cases  first  determine 
wliat  is  a  reasonable  rate.  Perry  v.  Ploriiia 
C.&'  P.  R.  Co.,  3  Int.  Com.  Rep.  740,  5  Int. 
Com.  Com.  97. 

Ill  cases  of  charging  unreasonable  rates, 
the  measure  of  reparation  due  to  an  injured 
party  is  the  difference  between  the  rate  actu- 
ally charged  and  the  reasonable  rate  which 
should  have  been  charged.  Perry  v.  Flor- 
ida C.  &*  P.  R.  Co.,  3  Int.  Com.  Rep.  740,  5 
/;//.  Com.  Com.  97. 

17.  Mileage,  Excursion,  Commutation  Tick- 
ets, etc. 

177.  Generally.  —  The  provision  of 
section  22  that  nothing  therein  shall  apply 
"to  the  issuance  of  mileage,  excursion,  or 
commutation  passenger  tickets"  authorizes 
stich  tickets,  but  they  must  be  issued  impar- 
tially and  at  reasonable  rates.  Larrison  v. 
Chicago  &*  G.  T.  R.  Co.,  i  Int.  Corn.  Rep. 
369,  I  Int.  Com.  Com.  147. 

And  the  rates  must  be  published,  as  is 
required  of  other  tickets.  In  re  Passenger 
Tariffs,  2  Int.  Com.  Rep.  445,  2  Int.  Com. 
Com.  649. 

The  unlawfulness  defined  by  sections  2 
and  3  consists  either  in  an  "  unjust  discrim- 
iii.ition  "  or  an  "undue  or  unreasonable 
preference  or  advantage";  and  from  the 
provision  of  section  23,  that  the  act  shall 
not  prevent  issuing  tickets  at  reduced  rates 
to  certain  classes  therein  specified,  it  does 
not  follow  that  tliere  may  not  be  other 
classes  of  persons  in  whose  favor  a  discrim- 
ination may  be  made  without  the  discrimi- 
nation being  unjust.  Interstate  Commerce 
Commission  v.  Baltimore  iS^*  O.  R.  Co.,  145 
U.  .S.  263,  12  Sitp.  Ct.  Rep.  844.  4  //;/.  Com. 
Rep.  92 ;  affirming  43  Fed.  ^ep.  37,  3  Int. 
Com.  Rep.  192. 

The  provision  of  section  2,  prohibiting 
unjust  discrimination, construed  to  prohibit 
the  giving  of  passes  or  free  carriage  to  par- 


ticular persons.  Ex  parte  Koehler,  12  Saivy, 
{C  S.)  446,  31  Fed.  Rep.  315,  i  /;//.  Com. 
Rip.  317. — Rkviewinc;  Ex  parte  Koehler, 
II  Sawy.  37;  Union  Pac.  R.  Co.  v.  United 
States,  104  U.  S.  662,  117  U.  S.  355;  Denaby 
Main  Colliery  Co.  v.  Manchester,  S.  «&  L.  R. 
Co.,  26  Am.  &  Eng.  R.  Cas.  293,  L.  R.  10 
H.  L.  Cas.  97. 

178.  Excursion  and  coniniiitation 
tickets. — The  price  for  mileage,  excursi  1, 
or  commutation  passenger  tickets  is  deter- 
mined for  eacli  class  without  reference  to 
tiie  other.  So  where  $25  was  charged  for  a 
looo-mile  ticket  it  does  not  follow  that  the 
price  is  too  high  because  excursion  and 
commutation  tickets  were  sold  so  tliat  pas- 
sengers may  ride  a  thousand  miles  for  less 
than  $25.  Associated  Wholesale  Grocers  v. 
Missouri  Pac.  R.  Co.,  i  Int.  Com.  Rep.  393,  i 
/;//.  Com.  Com.  156. 

Plaintiff  held  a  commutation  ticket 
whicli  contained  a  condition  that  he  should 
have  no  claim  for  a  rebate  on  account  of 
the  non-use  of  the  ticket  from  any  cause. 
For  a  time  the  company  had  been  in  the 
habit  of  giving  a  rebate  if  persons  holding 
such  tickets  failed  to  have  them  and  had  to 
pay  full  rates,  but  it  had  discontinued  the 
practice  some  three  weeks  before  and  had 
so  notified  the  commission.  Plaintiff  at- 
tempted to  ride  without  his  ticket  and 
had  to  pay  full  fare.  Held,  that  he  was  not 
entitled  to  a  rebate,  though  he  supposed 
that  the  former  custom  was  still  in  vogue. 
Sidman  v.  Richmond  &•  D.  R.  Co.,  2  Int. 
Com.  Rep.  766,  3  Int.  Com.  Com.  512. 

And  in  such  case  it  was  not  unjust  dis- 
crimination for  the  conductor  to  collect 
twenty-five  cents  extra,  where  that  regula- 
tion was  made  a  part  of  the  company's 
schedule  and  so  filed  with  the  commission. 
Sidman  v.  Richmond  &*  D.  R.  Co.,  2  Int. 
Com.  Rep.  766,  3  Int.  Com.  Com.  512. 

Plaintiff  purchased  such  ticket  on  the 
13th  day  of  June,  and  it  showed  on  its  face 
that  it  was  good  for  three  months  only  from 
the  first  day  of  June.  Held,  that  he  was 
not  entitled  to  recover  anything  for  the 
thirteen  days  of  the  quarter  elapsing  before 
he  purchased  the  ticket.  Sidman  v.  Rich- 
mond &*  D.  R.  Co.,  2  Int.  Com.  Rep.  766,  3 
Int.  Com.  Com.  512. 

179.  Disabled  soldiers  or  sailors. 
— The  commission  will  not  undertake  to  say, 
where  no  controversy  is  pending,  whether 
it  is  lawful  to  give  free  transportation,  under 
section  22  of  the  statute,  to  such  persons  as 


58 


INTERSTATE   COMMERCE,  180-185. 


i 

''Mil 


disabled  soldiers  or  sailors.  In  re  Disabled 
Soldiers  >S~»  Sailors,  i  ////.  Com.  Com.  28,  I 
/;//.  Com.  Rep.  75. 

180.  (loviTiinHMit  propei'ty.— Uiifler 
tlie  provision  of  seciion  22,  tiiat  notliing 
therein  contained  shall  apply  to  "  the  car- 
riage, storage,  or  handling  of  property  free, 
or  at  reduced  rates,  for  the  United  States, 
states,  or  municipal  governments,"  it  is  law- 
ful for  a  carrier  to  give  special  rates  to  indi- 
viduals to  enable  them  to  make  proposals 
to  the  general  government  for  the  transpor- 
tation of  Indian  supplies.  In  re  Indian  Sup- 
plies, I  Int.  Com.  Rep.  22,  i  /;//.  Com.  Com. 

And  under  the  above  provision  fish  and 
eggs  distributed  by  the  United  States  Fish 
Commission  may  be  given  free  transporta- 
tion. In  re  United  Si^Ues  Commission  of 
Fish  and  Fisheries,  i  /««'.  Com.  Rep.  606,  I 
Int.  Com.  Com.  21. 

181.  Land  explorers  or  settlers.— 
It  is  unlawlul  to  sell  what  are  termed  "  land 
explorers'  tickets"  or  "settlers'  tickets  "  be- 
low regular  passenger  rates.  Smith  v. 
Northern  Pac.  R.  Co.,  i  /;//.  Com.  Rep.  611, 
I  Int.  Com.  Com.  208. 

And  such  tickets  are  not  justified  on  the 
ground  that  they  are  issued  to  poor  persons 
who  are  seeking  permanent  locations,  and 
thai  the  business  of  the  carriers  will  be  ben- 
efited by  the  settlement  and  development 
of  the  country  along  their  lines.  Smith  v. 
Northern  Pac.  R.  Co.,  i  Int.  Com.  Rep.  611, 
I  /;//.  Com.  Com.  208. 

But  there  is  nothing  illegal  in  a  carrier 
selling  such  tickets  under  an  agreement 
thit  if  the  passengers  purchase  lands  from 
the  company  it  will  refund  a  part  or  the 
whole  of  the  price  of  the  tickets.  Smith  v. 
Northern  Pac.  R.  Co.,  i  Int.  Com.  Rep.  611, 
I  ////.  Com.  Com.  208. 

182.  Public  officers  —  Keli{rioiis 
teachers.— The  habit  of  interstate  carriers 
of  issuing  free  transportation  to  persons 
who  are  described  as  "gentlemen  long  emi- 
nent in  the  public  service,  high  officers  of 
the  states,  members  of  legislative  railroad 
committees,"  and  others  whose  good  will 
the  carriers  deem  important,  does  not  come 
within  section  22  of  the  statute,  and  is  there- 
fore unlawful.  In  re  Boston  &*  M,  R.  Co.,  3 
Int.  Com.  Rep.  717,  5  Int.  Com.  Com.  69. 

There  is  no  doubt  of  the  right  of  the  rail- 
roads to  grant  special  privileges  to  religious 
teachers ;  and  in  deciding  in  good  faith 
what  they  will  do  they  can  scarcely  be  said 


to  run  a  risk  of  penalties.  Penalties  are 
for  wilful  violations  of  law,  and  not  for  er- 
r<jrs  of  judgment.  In  re  Religious  Teachers, 
I  /;//.  Com.  Rep.  21. 

18:1.  Railroad  employes  or  fami- 
lies.— The  commission  will  not  make  a 
ruling,  in  advance  of  any  action  by  the  rail- 
roads, as  to  their  right  to  grant  free  passes 
to  rdilroad  employes  and  their  families,  and 
the  right  to  give  free  transportation  to  extra 
baggage  of  commercial  travelers.  In  re 
Order  of  Railway  Conductors,  i  /;//.  Com. 
Rep.  18,  I  Int.  Com.  Com.  8. 

The  provision  of  section  22  that  nothing 
therein  shall  be  construed  "  to  prevent  rail- 
roads from  giving  free  carriage  to  its  own 
officers  and  employes,"  does  not  include  the 
families  of  such  persons.  Fx  parte  Koehl- 
er,  12  Sawy.  {U.  S.)  446,  31  Fed.  Rep.  31 5,  i 
Int.  Com.  Rep.  317. 

184.  Theatrical  companies.— Where 
the  established  rate  for  single  passengers  is 
three  cents  a  mile,  it  is  not  unlawful  to  issue 
what  are  termed  "  party-rate  tickets  "  to  a 
number  of  persons,  usually  theatre  com- 
panies traveling  together,  at  two  cents  a 
mile,  where  such  tickets  are  offered  to  the 
public  generally.  Interstate  Commerce  Com- 
mission v.  Baltimore  &>  O.  R.  Co.,  145  I/.  S. 
263,  12  Sup.  Ct.  Rep.  844,  4  Int.  Com.  Rep. 
92  ;  affirming  43  Fed.  Rep.  37,  3  Int.  Com, 
Rep.  192. 

The  commission  will  not  undertake  to 
say  in  advance  what  rates  carriers  may 
make  to  certain  classes  of  persons,  such  as 
theatrical  companies.  In  re  Theatrical 
Rates,  I  Int.  Com.  Rep.  18. 

IV.  STATE  LAWS  AFFECTINO  INTERSTATE 
COMMERCE. 

I.  Tax  on  Interstate  Carriers  or  Traffic, 
a.  Right  to  Tax,  Generally.* 

185.  General  principles.— The  pow- 
er of  a  state  to  construct  railroads  and 
other  highways  and  to  impose  tolls,  fares,  or 
freights  for  transportation  thereon,  is  un- 
limited and  uncontrolled.  The  disposition 
of  the  revenues  thus  derived  i-;  subjected  to 
its  own  discretion.  But  a  state  cannot  im- 
pose a  tax  on  the  movement  of  persons  or 
property  from  one  state  to  anoiher.  Balti- 
more &^  O.  R.  Co.  V.  Maryland,  21  Wall.  (  U. 
S.)  456.  6  Am*  Ry.  Rep.  483.— ADHERING 
TO  Crandall  v.  Nevada,  6  Wall.  (U.  S.)  42  ; 


*  State  tax  on  interstate  commerce,  sec  note, 
13  Am.  &  Eno.  R.  Cas.  311. 


INTERSTATE   COMMERCE,  180-1»1. 


59 


State  Freight  Tax  Case,  15  Wall.  232. — 
Followed  in  Stone  v.  Farmers'  L.  &  T. 
Co.,  23  Am.  &  Eng.  R.  Cas.  577,  116  U.  S. 
307.  Quoted  in  Memphis  &  L.  R.  R.  Co. 
7'.  Nolan,  14  Fed.  Rep.  532.  Reviewed  in 
Carton  v.  Illinois  C.  R.  Co.,  6  Am.  &  Kng. 
K.  Cas.  305,  59  Iowa  148,  44  Am.  Rep.  672  ; 
Stone  4/.  Yazoo  &  M.  V.  R.  Co.,  21  Am.  & 
Eng.  R.  Cas.  6,  62  Miss.  607,  52  Am.  Rep. 

>93- 

The  taxation  of  the  property  of  a  corpo- 
ration engaged  in  interstate  commerce  is 
not  a  taxation  of  interstate  commerce. 
Pittsburgh,  C,  C.  &•  St.  L.  R.  Co.  v.  Backus, 
li,  Am.  ^  Eng.  R.  Cas.  227,  \n  Imi.  625, 
33  A'.  E.  Rep.  432. 

A  state  cannot  tax  a  foreign  corporation 
on  a  principle  different  from  that  in  which 
she  can  tax  one  of  her  domestic  corpora- 
tions. Erie  R.  Co.  v.  State,  31  N.  J.  Z.  531; 
rnicrsing  yy  N,/.  L.  473. 

180.  Stamp  tax  on  gold  or  silver 
exported. — The  California  law  imposing 
a  stamp  tax  on  gold  or  silver  shipped  out  of 
that  state  is  a  tax  on  interstate  commerce, 
and  void,  Almy  v.  California,  24  How.  {U. 
S.)  169. — Distinguished  in  Com.  v.  Erie 
R.  Co.,  62  Pa.  St.  286.  QucTEU  in  Clarke 
V.  Philadelphia,  W.  &  B.  k.  Co.,  4  Houst. 
(Del.)  158. 

187.  Capitation  tax  on  persons 
leavin{r  a  state. — The  provision  of  the 
Nev.  Act  of  1865,  by  which  a  capitation  tax 
shall  be  levied  and  collected  upon  every 
person  leaving  the  state  by  railroad  or 
sta<i;e  coach,  to  be  paid  by  the  owners  of 
such  roads  or  stage  coaches,  is  in  violation 
of  the  U.  S.  constitution.  This  conclusion  is 
based  upon  the  right  of  the  general  govern- 
ment to  send  its  officers  and  agents  to  any 
part  of  the  country,  and  the  right  of  every 
citizen  to  pass  through  a  state  unaffected 
by  state  taxation.  Crandall  v.  Nevada,  6 
Wall.  (U.  S.)  35.— Adhered  to  in  Balti- 
more &  O.  R.  Co.  V.  Maryland,  21  Wall. 
(U.  S  )  456.  Approved  in  Clarke  v.  Phil- 
adelphia, W.  &.  B.  R.  Co.,  4  Houst.  (Del.) 
158.  Distinguished  in  Com.  v.  Erie  R. 
Co.,  62  Pa.  St.  286.  Explained  and  dis- 
tinguished in  State  t/.  Baltimore  &  O.  R. 
Co.,  34  Md.  344.  Followed  in  Fargo  v. 
Michigan,  I2i  U.  S.  230. 

188.  Tax  on  franchise  granted  by 
congress.— Franchises  granted  by  con- 
gress cannot,  without  consent,  be  taxed  by 
the  states.  So  a  California  tax  on  the  fran- 
chise of  a  railroad  granted  by  congress  to  a 


company  operating  a  railroad  through  that 
state  and  other  territories — //eld,  to  be  a 
violation  of  the  federal  interstate  com- 
merce laws.  California  v.  Central  Pac.  R. 
Co.,  33  Am.  (S-  PSng,  R.  Cas.  451.  127  U,  S. 
I,  8  Sup.  Ct.  Rep.  1073.— Distinguishing 
Thompson  v.  Union  Pac.  R.  Co.,  9  Wall. 
(U.  S.)  579;  Union  Pac.  R.  Co.  v.  Peniston, 
18  Wall.  5.— Followed  in  San  Benito 
County  V.  Southern  Pac.  R.  Co.,  37  Am.  & 
Eng.  R.  Cas.  374,  -j-j  Cal.  518,  19  Pac.  Rep. 
827. 

Taxation  of  the  franchise  of  a  railway 
granted  by  act  of  congress,  by  the  territo- 
ries, is  not  in  conflict  with  the  constitu- 
tional grant  to  congress  of  the  power  to  regu- 
late commerce  among  the  several  states. 
Atlantic  &*  P.  R.  Co.  v.  Lesueur,  (Aris.)  37 
Am.  &^  Eng.  R.  Cas.  368,  19  Pac.  Rep.  157. 

189.  Uentedy  by  iiijunvtion.— If  the 
tax  can  be  separated,  the  court  will  enjoin 
that  portion  only  which  is  on  interstate 
traffic.  Ratterman  v.  Western  Union  Tel. 
Co.,  127  U.  S.  411,  8  Sup.  Ct.  Rep.  1127.— 
Reviewed  in  Ratterman  v.  American  Exp. 
Co.,  49  Ohio  St.  608. 

b.   Tax  on  Sleeping  Cars. 

100.  Generally.— A  state  cannot  tax 
or  regulate  transportation  of  passengers 
from  one  state  to  another  in  sleeping  cars. 
Indiana  v.  Pullman  Palace  Car  Co.,  13  Am. 
&^  Eng.  R.  Cas.  307,  11  Biss.  {If.  S.)  561,  16 
Fed.  Rep.  193. 

101.  On  capital  stock  of  foreign 
corporation  as  represented  l>y  num- 
ber of  cars  in  state.— A  state  may  tax 
the  cars  of  a  foreign  sleeping  car  company 
employed  in  interstate  commerce  and  which 
run  into,  through,  and  out  of  such  state,  and 
may  ascertain  the  proportion  of  the  prop- 
erty of  such  company  upon  which  the  tax 
should  be  placed  by  taking  as  a  basis  of  as- 
sessment such  proportion  of  the  capital 
stock  of  the  company  as  the  number  of 
miles  over  which  it  runs  cars  within  the 
state  bears  to  the  whole  numi  er  of  miles  in 
that  and  other  states  over  which  its  cars  are 
run.  An  act  imposing  such  a  tax  is  a  valid 
and  constitutional  law.  Pullman  Palace 
Car  Co.  V.  Pennsylvania,  46  Am.  &•  Eng.  R. 
Cas.  236.  141  U.  S.  18,  i\  Sup.  Ct.  Rep.  876; 
affirming  \o7  Pa.St.  156.— DISTINGUISHED 
IN  People  ex  rel.  v.  Wemple,  138  N.  Y.  i. 
Followed  in  Pullman  Palace  Car  Co.  v. 
Hayward,  141  U.  S.  36.  Quoted  in  Den- 
ver &  R.  G.  R.  Co.  V.  Church,  17  Colo.  i. 


00 


INTERSTATE   COMMERCE,  U»2-l«0. 


102.    Tn*     on    ;fross   earnings.  — A 

slccpin^j  car  company,  en}^af;e(l  in  llic  l)usi- 
iifss  of  transporting  passengers  from  one 
state  to  another,  is  not  sul)ject  to  liavc  a 
state  tax  levied  ii[)on  its  gross  earnings. 
The  fact  that  the  amount  of  tax  is  restricted 
to  the  distance  p:isseiigers  are  carried 
through  the  state  does  not  render  it  valid, 
for  tlic  tax  assumed  to  be  levied  is  upon  in- 
terstate commerce,  and  not  upon  the  inter- 
nal commerce  of  the  state.  Stitte  v.  U'ooii- 
rujf  S.  «S-  /'.  Co,H-/i  Co.,  33  A»i.  &^  Eiij^'.  A'. 
L'ds.  476,  114  /«(/.  155,  15  A'.  E.  Rep.  814,  I 
////.  Uom.  Kip.  79S,— QuoriNC.  {bobbins  %>. 
Shelby  Taxing  Dist.,  120  U.  S.  489. 

In  no  event  can  a  corporation  engaged  in 
the  business  of  interstate  commerce  be 
taxed  for  the  privilege  of  doing  business  in 
a  certain  state.  State  v.  \V001in4ff  S.  &* 
P.  Coach  Co.,  33  Am.  &*  En^.  li.  Cas.  476, 
1 14  Ind.  155,  15  A^.  E.  Rep.  814,  i  Int.  Com. 
Rep.  798. 

WYA,  Tax  on  value  of  cars  em- 
ployed iu  state.— Louisiana  Revenue  Act 
of  1890,  §  29,  provides  that  "  any  transpor- 
tation company  whose  sleeping  cars  run 
over  any  line  lying  partly  within  this  state, 
or  partly  within  another  state  or  states, 
shall  be  assessed  in  this  state  in  the  ratio 
which  the  number  of  miles  of  the  line  with- 
in the  state  has  to  the  total  number  of  miles 
of  the  entire  line."  Held,  that  a  sleeping 
car  company  of  another  state,  which  only 
did  the  usual  business  of  transporting  pas- 
sengers in  or  through  the  state,  and  did  no 
other  business  therein,  except  to  make 
casual  repairs  to  its  cars,  was  not  wholly 
exempt  under  the  above  statute  from  tax- 
ation. Pullman  Palace  Car  Co.  v.  Board 
of  Assessors,  55  Fed.  Rep.  206. 

But  where  it  appears  from  the  facts  of  the 
case  that  the  tax  is  assessed  on  the  total 
value  of  the  property  employed  within  the 
state,  and  not  in  the  ratio  of  mileage,  as  the 
statute  directs,  it  is  unlawful,  and  may  be 
enjoined.  Pullman  Palace  Car  Co.  v.  Board 
of  Assessors,  55  Fed.  Rep.  206. 

104.  Uniform  tax  on  each  car.— 
Tenn.  Art  of  March  16,  1877,  §  6,  imposing 
a  tax  of  $50  on  sleeping  cars  run  over  the 
railroads  of  the  state,  and  not  owned  by 
them,  is  unconstitutional,  so  far  as  it  relates 
to  cars  used  in  interstate  business.  Pickard 
V.  Pullman  Southern  Car  Co.,  24  Am.  Sr*  Eng. 
P.  Cas.  511,  117  U.  S.  34,  6  Sup.  a.  Rep. 
635.  ~  Disapproving  Pullman  Southern 
Car  Co.  V.  Gaines,  3  Tenn.  Ch.  587.     Dis- 


TiN(;ui.siiiNG  Osborne  v.  Mobile,  16  Wall. 
(U.  S.)479;  Wiggins  Ferry  Co.  v.  East  St. 
Louis,  107  U,  S.  365.  FoLl.owiNc,  State 
Freight  Tax  Case,  15  Wall.  232.  —  FoL- 
LOWKD  IN  Tennessee  v.  Pullman  Southern 
Car  Co.,  117  U.  S.  51. 

c.  Tax  on  gross  receipts.* 

lOfl.  Generally.  —  A  state  statute 
whicli  levies  a  tax  upon  the  gross  receipts 
of  railroads  for  tlie  carriage  of  freight  and 
passengers  into,  out  of,  or  tlirough  the 
state  is  a  tax  upon  commerce  among  the 
states,  and  therefore  void.  Juirt^o  v.  Michi- 
gan, 31  Am.  &*  Eng.  R.  Cas.  452,  121  U.  S. 
230,  7  Sup.  Ct.  Rep.  857.— FoLl.()\viN(;  S?atc 
Freight  Tax  Case,  15  Wall.  (U.  S.i  232: 
Wabash,  St.  L.  &  P.  R.  Co.  %>.  Illinois.  118 
U.  S.  557;  Crandall  v.  Nevada,  6  Wall.  35. 
—Followed  in  People  ex  rel.  v.  Wcmpn  , 
138  N.  Y.  I. 

While  a  state  may  tax  the  money  actually 
within  the  state,  after  it  has  passed  beyond 
the  stage  of  compensation  for  carrying  per- 
sons or  property,  as  it  may  tax  other  money 
or  property  within  its  limits,  a  tax  upon 
receipts  for  this  class  of  carriage,  specifically, 
is  a  tax  upon  the  commerce  out  of  which  it 
arises,  and,  if  that  be  interstate  commerce, 
it  is  void  under  the  constitution.  Fargo  v. 
Michigan,  31  Am.  &^  Eng.  R.  Cas.  452,  121 
U.  S.  230,  7  Sup.  Ct.  Rep.  857. 

lOG.  Under  various  statutes. — The 
Dakota  Act  of  March  9, 1883,  which  provides 
for  the  levy  and  collection  of  a  percentage 
of  the  gross  earnings  of  railroad  companies 
in  lieu  of  other  taxes,  is  unconstitutional 
and  invalid,  in  so  far  as  it  imposes  a  tax 
upon  the  transportation  of  freight  or  passen- 
gers to  or  from  points  outside  the  state, 
such  traffic  being  interstate  commerce  sub- 
ject only  to  the  regulations  of  congress. 
Northern  Pac.  R.  Co.  v.  Raymond,  yj  Am. 
&•  Eng.  R.  Cas.  379,  5  Dah.  356,  40  X.  Jl'. 
Rep.  538,  I  L.  R.  A.  732,  2  ////.  Com.  Rep. 
321.  Contra,  see  Northern  Pac,  R.  Co.  v. 
Barnes,  53  Am.  <S"»  Eng.  R.  Cas.  616,  2  A'. 
Dak.  310,  51  A'.  IV.  Rep.  386.— Followed 
IN  Northern  Pac.  R.  Co.  7>.  Barnes,  2  N. 
Dak.  395;  Northern  Pac.  R.  Co.  z>.  Strong. 
2  N.  Dak.  395;  Northern  Pac.  R.  Co.  v. 
Brewer.  2  N.  Dak.  396 ;  Northern  Pac.  R. 
Co.  V.  Tressler,  2  N.  Dak.  397. 

*  State  taxation  of  profits  of  business  of  cor- 
porations enRaged  in  interstate  commerce,  see 
note,  17  Am.  &  Eng.  R.  Cas.  404. 


INTERSTATE    LOMMEKCE,   1U7-1UU. 


61 


Indiana  Act  of  March  29,  1881,  §  87,  pro- 
vitling  for  a  tux  of  two  per  cent,  on  the 
gross  receipts  of  foreign  sleeping  car  com- 
panies on  business  done  in  tiie  state,  is  rn- 
tniistitutional.  Indiiina  \.  J'liUman  J'alacf 
Ciir  Co.,  13  ./w.  &-  I'^ng.  K.  Cas.  307,  11 
A'/vf.  (  U.  S.)  561,  16  J'tft/.  Kep.  193. 

Michigan  Act  of  March  27,  1867,  entiticil 
"An  act  to  regulate  express  companies  and 
tiieir  agents,  and  individuals  prosecuting 
the  express  business,  not  incorporated  by 
the  state  of  Michigan,"  and  requiring  the 
payment  of  a  specific  tax  of  one  per  cent,  of 
the  gross  business  done  in  tiic  state,  is  not  in 
conflict  with  the  C(jmnierce  cUiuse  of  the 
constitution  of  the  United  States.  Walcott 
V.  reoftU;  17  Mich.  68. 

A  statute  of  Missouri  levying  a  tax  on 
tiie  gross  receipts  of  an  express  company 
from  business  "  done  within  the  state,"  does 
not  attempt  to  tax  the  company's  receipts 
from  business  done  between  that  state  and 
oilier  states.  Pacific  Exp.  Co.  v.  Seibert,  48 
.////.  &•  Kng.  R.  Cos.  610,  142  C.  S.  339, 
12  Sup.  Ct.  Rep.  250. 

1))7.  Under  Pciiiiisylvaiiia  statute. 
—  Penn.  Act  of  August  25,  1S64,  entitled 
"An  act  to  provide  additional  revenue  for 
the  use  of  the  commonwealth,"  is  not  in 
conflict  with  the  constitution  of  the  United 
States  so  far  as  it  imposes  a  tax  on  the 
gross  receipts  of  railroad  companies,  though 
such  receipts  are  made  up  from  interstate 
tiaffic.  Such  tax  cannot  properly  be  said 
to  be  a  regulation  of  commerce  among  the 
states ;  uor  a  tax  on  imports  or  exports  ;  nor 
a  tax  on  transportation.  Philadelphia  &^ 
R.  R.  Co.  v.  Pennsylvania,  15  Wall.  (U.  S.) 
2S4.  — FoLLoWKD  IN  American  Union  Exp. 
Co.  V.  St.  Joseph,  66  Mo.  675.  Quoted  in 
Porter  v.  Rockford,  R.  I.  &  St.  L.  R.  Co.. 
76  111.  561 ;  Ratterman  v.  American  Exp. 
Co  ,  49  Ohio  St.  608  ;  Providence  Coal  Co. 
V.  Providence  &  W.  R.  Co.,  26  Am.  &  Eng. 
1\.  Cas.  42,  15  R.  I.  303;  State  v.  Baltimore 
&  O.  R.  Co.,  18  Am.  &  Eng.  R.  Cas.  466, 
24  W.  Va.  783. 

The  Pennsylvania  Act  of  June  17,  1879, 
which  imposes  a  tax  upon  the  gross  receipts 
of  railroad  companies  organized  or  doing 
business  within  the  commonwealth  "for 
tolls  and  transportation,  telegraph  busi- 
ness or  express  business,"  is  invalid  as  a  con- 
travention of  the  provision  of  the  federal 
constitution  that  congress  shall  have  power 
to  regulate  interstate  commerce  in  so  far  as 
such  receipts  are  derived  from 'commerce 


between  points  within  and  points  without 
the  state.  Delaware  &^  //.  Canal  Co.  v. 
Com.,  (/'a.)  37  An/,  ti-  L'n^.  h.  Cas.  359,  17 
.,■///.  Rep.  175. 

Where  both  or  one  of  the  terminal  points 
of  a  railway  company  is  beyond  the  stale, 
a  tax  laid  on  the  gross  receipts  received 
from  transportation  of  freight  or  passengers 
between  those  points  is  void,  being  a  tar.  ou 
interstate  commerce.  Com.  v.  Lehigh  I  al- 
ley R.  Co.,  (/•<!.)  17  All.  Rep.  179. --Di.s- 
TiNGUisHiNi;  Coe  V.  Eriol,  116  U.  S.  517, 
6  Sup.  Ct.  Rep.  475. 

lUM.  On  u  .steaiiisliip  ooiiiimiiy.— A 
state  cannot  tax  the  gross  receipts  of  a 
steamship  company  derived  from  the  car- 
riage of  persons  and  property  between  the 
state  and  other  states,  or  foreign  nations. 
Philadelphia  <&^  .V.  M.  Steamship  Co.  v.  Penn- 
sylvania, 122  U.  S.  326,  7  Stip.  Ct.  Rep.  1 1 18. 
— Quoted  in  People  ex  rel.  v.  Wemple,  138 
N.  Y.  I. 

d.  Tax  on  the  Property  or  Business  of  a 
Carrier. 

100.  On  f'rei(<rlit»,  estimated  bytlieir 
weijjlit.— A  state  statute  requiring  all  car- 
riers doing  business  in  the  state  to  pay  a 
tax  upon  all  merchandise  carried,  based 
upon  the  weight  of  the  merchandise,  is  in 
conflict  with  the  commerce  clause  of  the 
constitution  of  the  United  States,  so  far  as 
it  relates  to  interstate  traffic'.  Philadelphia 
(S-*  R.  R.  Co.  V.  Pennsylvania,  1 5  Wall.  ( U. 
S.)  232. — Adhered  to  in  Baltimore  &  O. 
R.  Co.  V.  Maryland,  21  Wall.  456.  Ap- 
proved IN  Maryland  v.  Cumberland  &  P, 
R.  Co.,  40  Md.  22.  Followed  in  Erie  R. 
Co.  7/.  Pennsylvania,  15  Wall.  282;  Pickard 
7'.  Pullman  Southern  Car  Co.,  117  U.  S.  34; 
Fargo  V.  Michigan,  I2t  U.  S.  230;  United 
States  Exp.  Co.  v.  Hemmingway,  39  Fed. 
Rep.  60. 

The  constitutionality  or  unconstitution- 
ality of  a  state  tax  is  to  be  determined,  not 
by  the  form  or  agency  through  whicii  it  is 
to  he  collected,  but  by  the  subject  upon 
which  the  burden  is  laid.  The  test  is,  what 
is  the  subject  of  tlie  tax — upon  what  does 
the  burden. really  rest;  not  from  whom  the 
state  exacts  payment  into  its  treasury. 
Philadelphia  &*  R.  R.  Co.  v.  Pennsylvania, 
IS  IVall.  {U.  S.)  232. 

So  long  as  the  tax  is  upon  the  freight 
carried,  it  is  in  conflict  with  the  federal 
law,  though  the  tax  itself  is  collected  from 


4  i 


68 


INTERSTATE  COMMERCE,  200,201. 


the  carriers.     Philadeiphiii  Sr*  A'.  R.  Co.  v. 
J'liutsyhttniii,  15  U'oil.  (U.  S.)  JJ2. 

Ill  (ieiciiniiiiiig  the  conslituunnality  of 
such  a  staiute,  its  cllcct  on  conimcnc,  and 
not  the  Icyislalive  purpose-  in  ciiactiny  it, 
must  be  considered.  So  it  is  110  deft-nse  of 
the  statute  tliat  it  was  the  purpo.se  of  tlie 
Icyishiture  in  c-  ctiny  it  to  raise  revenue 
for  the  state  jjovernnieiit.  rhilndclphia  &^ 
J\\  A'.  Co.  V.  i'eniisyliauia,  15  W^aii.  (,U.  S.) 

232- 

Neither  is  the  stcttute  made  valid  by  the 
fact  tliat  the  tax  is  levied  upon  all  of  the 
freight  alike,  both  state  and  interstate. 
The  state  only  h.is  the  right  to  tax  its  own 
domestic  commerce  and  property  as  it 
pleases.  Philadelphia  (>  li.  /i'.  Co.  v.  JUnit- 
sy/vania,  15  Wall.  (U.  S.)  232. 

And  such  statute  cannot  be  sustained  on 
tiie  j-round  that  it  is  not  intended  as  a  regu- 
lation of  j:omnicrce,  but  as  compensation 
for  the  use  of  worics  of  internal  improve- 
ment, constructed  under  franchises  granted 
by  the  state ;  or,  in  other  words,  tliai  it  is  a 
toll  for  the  use  of  railways  considered  as 
highways.  The  error  of  such  proposition  is 
in  the  fact  that  the  tax  is  not  upon  the 
franchises  of  the  corporations,  but  upon 
their  freight.  Philadelphia  &^  A'.  A'.  Co.  v. 
Pennsylvania,  15  Wall.  (U.  S.)  232, 

200.  Tuiiiiagu  taix.— Tlie  Pa.  Act,  Aug. 
25,  1864,  levying  a  tax  on  the  freight  of  a 
railroad,  only  a  part  of  which  is  situate  in 
that  state,  which  freight  is  eitiier  taken  up 
in  the  state  and  carried  out,  or  received  in 
another  state  to  be  brought  within  it,  is  un- 
constitutional as  an  attempt  to  regulate 
commerce  among  the  states.  Erie  A'.  Co. 
V.  Pennsylvania,  15  IVall.  ((/.  S.)  282,  4 
Brews.  (Pa.)  202  ;  reversing  62  Pa.  St.  286. 
—Following  Philadelphia  &  R.  R.  Co.  v. 
Pennsylvania,  15  Wall.  (U.  S.)  232.— Fol- 
lowed IN  Pullman  Palace  Car  Co.  v. 
Twombly,  29  Fed.  Rep.  658. 

A  clause  in  the  charter  of  a  railroad  com- 
pany, providing  that  all  tonnage  of  what- 
soever kind  or  description,  except  the  or- 
dinary baggage  of  passengers,  carried  or 
conveyed  on  said  railroad,  in  each  and 
every  year,  siiall  be  subject  to  a  toll  or  duty 
for  ilie  use  of  the  commonwealth,  of  three 
mills  per  ton  per  mile,  is  simply  a  mode  of 
taxing  the  company  according  to  the  mag- 
nitude of  its  business,  and  is  not  intended 
as  a  tax  on  commerce.  Pennsylvania  R.  Co. 
V.  Com.,  3  Grant's  Cas.  (Pa.)  128. 

Such  a  tax  is  not  in  violation  of  the  pro- 


visions of  the  constitution  of  the  United 
States,  that  "congress  shall  have  exclusive 
power  to  regulate  commerce  with  foreign 
nations,  and  among  the  states,"  and  |>r()liil)- 
iting  the  states,  without  the  consent  of  con- 
gress, from  laying  duties  on  imports  and 
exports.  Pennsylvania  A'.  Co.  v.  Com.,  3 
(Jrant's  Cas.  (/'a.)  128, 

The  acceptance  by  the  company  of  a  char- 
ter with  such  a  provision  is  equivalent  to  an 
express  contract  to  pay  the  tax.  Treated  as 
a  contract,  therefore,  between  the  slate  and 
the  corporation,  it  is  not  to  be  testtcl  by  the 
constitution  as  a  law  of  the  state ;  regarded 
as  a  law,  the  company  cannot  complain  of 
it,  for  they  freely  subjected  themselves  to  it, 
for  the  sake  of  the  benefits  ofTered  with  it. 
J'ennsyli'ania  A'.  Co.  v.  Com.,  3  U rant's  Cas. 
(Pa.)  128. 

201.  Oil  tlic  iiiterstnte  biiMiiiesM  of 
a  lorcitfii  corporation.—//  seems  t\u- 
property  of  a  foreign  corporation,  engaged 
in  foreign  or  interstate  commerce,  may  be 
taxed  equally  with  like  prcjperty  of  a  do- 
mestic corporation  engaged  in  the  same 
business,  but  a  tax  or  other  burden  imposed 
upon  the  property  of  either  corporation  be- 
cause it  is  used  to  carry  on  that  commerce, 
or  upon  the  transportation  of  persons  or 
property,  or  for  the  navigation  of  public 
waters,  is  invalid,  as  an  interference  with 
the  power  of  congress  in  the  regulation  of 
commerce.  People  ex  rel.  v.  W  em  pie,  131 
N.  Y.  64,  43  A^.  Y.  S.  li.  963,  mem.,  29  i\.  I 
Pep.  1002  ;  affirming  61  Hun  83. 

//  seems  the  state  njay  impose  upon  do' 
tic  corporations,  engaged  in  state  and  ii 
state  commerce,  a  franchise  tax,  measured  v 
the  v  hole  capital  or  business,  or  in  any  oiiiei 
way,  in  the  discretion  of  the  legislature, 
without  regard  to  the  part  of  the  business 
arising  from  interstate  commerce,  provided 
no  hostile  discrimination  is  made  against 
such  part.  People  ex  rel  v.  Wemple,  54 
Am.  &•  Eng.  li.  Cas.  i,  138  A^.  Y.  1,51  A'. 
Y.  S.  Ii.  702  ;  affirming  65  Hun  252,  47  A'. 
Y.  S.  Ji.  695,  20  A^.  Y.  Supp.  287.  29  Abb.  X. 
Cas.  85. 

The  state  may  not  tax  a  foreign  corpora- 
tion upon  its  business  carried  on  in  this 
state,  where  it  is  exclusively  the  business  of 
interstate  commerce.  Such  a  tax  is  a  regu- 
lation of  commerce,  and  the  power  to  regu- 
late commerce  between  the  states  is  vested 
exclusively  in  congress.  People  ex  rel  v. 
Wemple,  54  Am.  &*Eng.  R.  Cas.  i,  138  A^.  Y. 
i,Si  N.  Y.  S.  R.  702  :  affirming  65  Hun  252, 


INTERSTATE   COMMERCE,  2U2-li04. 


03 


47  .\'.   r.  i".  A'.  695,  20  A^.   K.  i'///-/.  287,  29 
^////'.  A".  6(iJ.  85. 

//  sti-ins  tlic  atate  iniiy  levy  a  tax  upon 
property  employed  in  interstate  commerce, 
having  a  situs  within  the  jurisdiction,  pro- 
vidt'd  no  adverse  discrimination  is  made  in 
tlie  iin|)ositi()n  of  the  tax  between  such 
property  and  other  property  of  a  similar 
character.  People  ex  re/  v,  ll'empie,  54 
Am.  &-  En^r  a-.  Cas.  i,  138  A'.  K.  i,  51  /V.  V. 
S.  A'.  702 ;  ajjbmini;  6$  Hun  252,  47  A'.  V, 
S.  a:  695.  20  jV.  v.  Supp.  287,  29  Abb.  N. 
CiU.  85. 

The  relator,  a  Pennsylvania  railroad  cor- 
poration, whose  line  extends  into  other 
states,  but  not  into  this  state,  operates  in 
connection  with  its  road  a  ferry  across  the 
Hmlson  river  to  the  city  of  New  York, 
where  it  has  terminal  facilities  used  in  re- 
cfiviii),'  and  deliverinj^  freijjlu  and  passen- 
gers ;  it  collects  in  that  city  money  due  for 
transportation  of  freight  to  and  from  it,  and 
sells  there  passenger  tickets,  employing  a 
lar),'!'  number  of  agents,  clerks,  and  laborers. 
The  state  comptroller  imposed  a  tax  upon 
the  forpo.ation,  under  N.  Y.  Act  of  1880,  ch. 
542,  as  amended  in  1881,  ch.  361,  providing 
for  taxing  corporations.  Held,  that  tlie 
business  in  which  the  relator  was  engaged 
in  this  state  was  exclusively  that  of  inter- 
state commerce,  and  so  that  the  tax  was 
void.  People  ex  rel  v.  IVemple,  54  Am.  &* 
/ '(!,'.  A-.  Cas.  I,  138  A^.  r.  I,  51  A^.  F.  5'.  A'. 
,•'- ;  affirming  65  Hun  252,  47  A';  Y.  S.  R. 
695,  20  N.  v'Supp.  2S7,  29  Abb.  N.  Cas.  85. 

')|STIN0U1SHING  Western  Union  Tel.  Co. 

Massachusetts,  125  U.  S.  530;  Massachu- 
setts V.  Western  Union  Tel.  Co.,  141  U.  S. 
40;  Pullman  Palace  Car  Co.  v.  Pennsyl- 
vania, 141  U.  S.  18;  Maine  w.  Grand  Trunk 
R.  Co.,  142  U.  S.  217.  Following  Fargo 
V.  Michigan,  i  -  U.  S.  230;  Gloucester  Ferry 
Co.  7/.  Pennsylvania,  114  U.S.  196,  Quot- 
ing Philadelphia  &  S.  M.  Steamship  Co.  v. 
Pennsylvania,  122  U.  S.  326. 

202.  Oil  t\n-  interstate  hiisiiieHH  of 
a  (loiiiesti«  coriioration.  —  The  N.  Y. 
Act  of  1880,  >  h.  542,  §  6,  as  amended  by 
ch.  361  of  Acts  of  1881,  providing  for  a 
tax  on  transportation  corporations  of  one 
half  of  one  per  cent.  "  upon  the  gross 
earnings  in  this  state  of  the  said  corporation 
*  *  *  for  *  *  ♦  business  transacted  in  this 
state,"  is  not  in  conflict  with  that  provision 
of  the  federal  constitution  giving  the 
United  States  exclusive  power  to  regulate 
commerce  among  the  states,  when  applied  to 


a  railroad  created  under  the  laws  of,  and 
operated  from  a  point  in  New  York  to  a 
point  in  another  state,  and  to  its  interstate 
business.  People  ex  rel  v.  Campbell,  74 
Hun  210.  26  N.  V.  Supp.  832,  56  A'.  V.  S. 
R.  358.— Approving  People  ex  rel  v.  Wem- 
ple,  138  N.  Y.  1;  Maine  v.  Grand  Trunk  K. 
Co.,  142  U.  S.  217. 

20:{.  On  value  of  capital  Htock  and 
net  earninjft*.— Del.  Act  of  April  8,  1869, 
taxing  railroads  and  canals  three  per  cent, 
of  their  net  income,  and  one  fourth  of  one 
per  cent,  upon  the  cash  value  of  the  capital 
stock,  with  a  provision  that  if  the  road  or 
canal  lay  partly  out  of  the  slate,  the  tax 
should  be  in  the  same  pro|)ortion  that  the 
part  of  the  road  or  canal  bore  to  the  whole 
length  thereof,  is  not  in  conflict  with  the 
power  of  congress  to  regulate  commerce 
among  the  states.  Minot  v.  Philadelphia, 
IV.  &*  U.  R.  Co.,  18  Wall.  (U.  S.)  206,  7 
Am,  Ry.  Rep.  312  ;  affirming  7  Phila.  {Pa.) 
555.— yuoTKiJ  IN  Philadelphia,  W.  &  B.  R. 
Co.  7'.  Neary,  5  Uel.Ch.  600,8  Atl.  Kep.  363. 

204.  On  biiMineHM  done,  based  on 
wei^lit  of  frei^lits  and  niiniber  of 
I)asHeii{;er8. — A  law  for  revenue,  laying  a 
distinctive  tax  on  the  business  of  foreign 
corporations  habitually  doing  business  in  a 
state,  such  business  consisting  of  the  trans- 
portation of  goods,  in  transitu,  from  state  to 
state,  and  the  tax  being  graduated  by  tiie 
weight  of  the  goods  and  the  number  of  the 
passengers  carried,  is  an  infringement  of 
the  clause  of  the  constitution  of  the  United 
States  giving  to  congress  the  regulation  of 
commerce  between  the  several  states.  Erie 
R.  Co.  V.  State,  31  N.J.  L.  531  ;  r^ersing 
30  N.  /.  L.  473. 

A  tax  on  the  business  of  a  foreign  rail- 
road company  passing  through  the  state, 
though  in  form  on  the  business  of  the  com- 
panies, is  in  substance  a  tax  on  the  commod- 
ities, the  transportation  of  which  consti- 
tutes such  business.  Erie  R.  Co.  v.  State,  ■^i 
N.  J.  L.  531  ;  reversing  30  A'.  /.  L.  473. — 
Distinguished  in  Karitan  &  D.  B.  R.  Co. 
V.  Delaware  &  R.  Canal  Co.,  18  N.  J.  Eq. 
546.  Reviewed  in  Central  R.  Co.  v.  State 
Board  of  Assessors,  49  N.  J.  L.  1. 

Whenever  the  taxation  of  a  commodity 
would  amount  to  a  regulation  of  commerce 
within  the  prohibition  of  the  constitution, 
so  will  the  taxation  of  an  inseparable  inci- 
dent or  necessary  concomitant  of  such  com- 
modity. Erie  R.  Co.  v.  State,  31  A'^,  /.  L. 
531  ;  reversing  30  N.J,  L.  473. 


''}!'"• 


.r! 


64 


INTERSTATE   COMMERCE,  2©5-200. 


1| 


The  power  to  refuse  a  recognition  o(  cor- 
porate existence  dues  not  involve  tlie  right 
to  tax  a  foreign  corporation  at  the  arbitrary 
discretion  of  the  government  possessing 
sucii  power.  Erie  A'.  Co.  v.  Slate,  31  N.  J. 
L.  531  ;  rcvcrsiiiii  30  A'./.  /-.  473- 

An  act  of  taxation  is  a  recognition  of  the 
legal  status  of  the  corporation  taxed,  and 
admits  that  such  corpor.ition  is  clothed 
with  all  the  rights  necessary  to  defend  itself 
against  illegal  taxation.  Erie  R.  Co.  v. 
S/tih;  31  A',  y.  Z..  531  ;  renter  sing  30  A'.  /. 
L.  473. 

Del.  Act  of  1864,  imposing  a  tax  upon  all 
carriers  of  passetigers  by  steam  of  ten  cents 
for  each  passenger  transported  across  any 
portion  of  the  state,  but  allowing  carriers  to 
in  jrease  their  tolls  by  that  amount,  in  effect 
iniposesa  tax  upon  the  passengers,  and  is  in 
conflict  with  the  commerce  clause  of  the 
constitution  of  the  United  States,  so  far  as 
it  relates  to  the  interstate  carriage  of  pas- 
sengers Clarke  v.  Philadelphia,  W.  Sr*  B. 
K.  Co.,  4  Hoiisi.  (Del.)ili,  6  Am.  Ky.  Rep.  7. 
— Ai'FRoviNc;  Crandall  v.  Nevada,  6  Wall. 
(U.  S.)  35  ;  Brown  v.  Maryland,  12  Wheat. 
(U.  S.)  444  ;  Gibbons  v.  Ogden,  9  Wheat,  i. 
Distinguishing  New  York  v.  Miln,  11  Pet. 
(U.  S.)  136.  Quoting  Almy  v.  Califor- 
nia, 24  How.  (U.  S.)  169;  Passenger  Cases, 
7  How.  283. 

205.  Oil  property  of  foreign  cor- 
poration found  ill  Htute  on  a  IcaHed 
road.— Section  9  of  the  N.  J.  Taxation  Act 
provides  that  where  a  railroad  of  the  state 
is  under  lease  to  a  foreign  corporation,  any 
tiingible  personal  property  of  such  foreign 
company,  if  used  or  kept  but  a  part  of  the 
time  in  the  state,  shall  be  assessed  such  pro- 
portionate part  of  its  value  as  the  time  it  is 
used  or  kept  in  the  state  during  the  year 
preceding  tlie  first  dayof  Jar  <ary  designated 
ill  the  act  bears  to  the  whole  year ;  atid  it 
appearing  that  certain  engines  and  cars  that 
were  used  on  its  leased  lines  in  the  state  by 
the  Philadelphia  &  Reading  Railroad  Com- 
pany, in  the  course  of  interstate  commerce, 
such  company  having  in  use  a  full  local 
equipment  of  such  leased  lines  which  was 
duly  taxed  in  the  state— heM,  that  the  tax 
upon  such  property  employed  in  interstate 
commerce  was  illegal,  being  in  contraven- 
tion of  that  clause  of  the  constitution  of  the 
United  States  that  gives  to  congress  the 
exclusive  regulation  of  commerce  between 
tlie  several  states.  Central  R.  Co.  v.  State 
lliant  of  Assessors,  49  A.  J.  Z..  1,  7  Atl.  Rep, 


306.— Reviewing  Erie  K.  Co.  v.  State,  31 
N.  J.  L.  531  ;  Hays  v.  Pacific  Mail  Steam- 
ship Co..  17  How.  (U.  S.)  596. 

20<l.  On  loo  Motives  and  cui-h.— 
Where  a  state  statute  imposes  a  tax  upon 
locomotives  and  passenger  and  freight  cars, 
it  amounts  to  a  tax  upon  the  f'cight  and 
passengers  carried,  and  if  in  conflict  with 
the  commerce  clause  of  the  constitution  of 
the  United  States,  so  far  as  it  relates  to 
interstate  business,  where  it  appears  that 
the  object  of  the  statute  is  to  raise  revenue, 
as  distinguished  from  a  mere  police  regula- 
tion. Minot  \.  Philadelphia.  W.  6-  />*.  R. 
I'o.,  1  Abb.  {(/.  S.)  323;  aj/irmed  in  18 
Wall.  206. 

207.  On  coal  niiiied  in  one  state  to 
be  .sliipped  to  unotlier.— Md.  Act  of 
1872,  cli.  274,  imposing  a  tax  of  two  cents 
per  ton  on  all  C(jal  mined  in  the  state  and 
transported  to  any  place  in  the  state,  or 
elsewhere,  for  sale,  is  repugnant  to  the  con- 
stitution of  the  United  States  so  far  as  it 
relates  to  coal  that  is  shipped  out  of  the 
state.  (Stewart,  Howie  and  Robinson,  JJ., 
dissenting.)  State  v.  Cumberland  <S«»  /'.  A'. 
Co.,  40 ;)/</.  22. — Ai'i'RoviNc;  I'hiladelphia  & 
R.  R.  Co  V.  I'ennsylvania,  15  Wall.  (U.  S.) 
232;  Osborne  v.  Mobile,  16  Wall.  479.  Re- 
viewing Mayor,  etc.,  of  Haltimoie  7'.  Balti- 
more &  O.  R.  Co.,  6  Gill  (Md.)  291.— Re- 
viewed i:-  ate  7'.  Northern  C.  R.  Co.,  44 
Md.  131 ;  State  v.  Philadelphia.  W.  &  B.  R. 
Co.,  45  Md.  361. 

e.  License  Tax.* 

208.  For  privilege  to  foreign  cor- 
poration to  keep  oHlce  in  state.— A 

tax  imposed  by  a  state  upon  a  foreign  cor- 
poration owning  an  interstate  railroad,  for 
the  privilege  of  keeping  an  office  in  the 
state  for  the  use  of  its  officers,  stockholders, 
agents,  and  employes,  is  a  tax  upon  com- 
merce among  the  states,  ami  as  such  is  re- 
pugnant to  the  constitution  of  the  United 
States.  Norfolk  «&-  W.  R.  Co.  v.  Pennsyl- 
vania, 45  //;//.  <S-  Eng.  R.  Cas.  9,  136  U.  S. 
1 14,  10  Sup.  Ct.  Rep.  958  ;  n-nersini^  26  Am. 
&»  Eng.  R.  Cas.  48,  114  Pa.  .St.  256,  6  Atl. 
Rep.  45.— Quoted  in  Norfolk  &  W.  R.  Co. 
V.  Com.,  88  Va.  95. 

209.  For  privilege  of  exercising 
francliise.— "  An  excise  tax  for  the  privi- 
lege of  exercising  its  franchises,"  being  a 

*  License  lax  on  foreign  corporations,  see 
notes,  45  Am.  &  Eno.  R.  Cas.  8;  13  Id.  306. 


INTERSTATE   COMMERCE,  210-214. 


C5 


varying  percentage  on  its  gross  receipts  per 
mile,  and  in  proportion  to  the  number  of  its 
tiiil>?s  within  the  state  is  not  a  regulation  of 
interstate  commerce  when  levied  upon  a 
company  operating  under  lease  a  railroad 
extending  beyond  tlie  limits  of  the  state 
levying  the  tax.  Maine  v.  Grand  Trunk  K. 
Co.,  48  /////.  &•  Eng.  h'.  Ciis.  602,  142  'J.  S. 
217,  12  Su/>.  Ct.  Rip.  121,  163.  — FiisriN- 
GL'isiii.i)  IN  People  ex  rel.  v.  vV'emple,  138 
N.  Y,  I. 

210.  For  |>rivilu$;e  of  Nolieitint; 
sales  of  {((mmIs  for  interstate  sliip- 
iiH'iits.— A  stattt  law  imposing  a  tax  on 
persons  engaged  in  selling  liquors  at  whole- 
sale, or  of  soliciting  or  taking  orders  for 
such  liquors  to  be  sinpped  into  the  sta>e. 
without  imposing  a  like  tax  on  persons  en- 
ga;;e(l  in  the  same  business  \\\  the  stale,  is 
an  attempt  to  regulate  interstate  commerce, 
and  repugnant  to  the  constitution  and  laws 
.>f  the  United  States,  ll'a/ling  v.  Michi- 
i^um.  116  I/.  S.  446,  6  Sufi.  Ct.  Rep.  454. — 
Kkviewkd  in  Bagg  v.  Wilmington,  C.  &  A. 
K.  Co.,  109  N.  Car.  279. 

211.  For  privileK:e  ot'(loiii{r  biiNi-' 
iioNS  ill  a  niiiiiieipality.* — A  license  tax 
imposed  by  the  city  of  San  Francisco  upon 
the  agent  of  a  line  of  railroad  between  Chi- 
cago and  New  York,  for  the  privilege  of  do- 
ing business  in  San  Francisco,  consisting  of 
soliciting  passengers  from  San  Francisco  to 
New  York  to  take  that  line  at  Chicago,  but 
not  the  sale  of  tickets  for  Ihe  route,  or  the 
receipt  or  payment  of  money  on  account  of 
It,  is  a  tax  upon  interstate  commerce,  and 
is  unconstitutional  and  void.  McCa'l  v. 
Calif  or  niit,  45  Am.  &*  Eng.  R.  Cas.  i,  136 
U.  S.  104,  10  Sup.  Ct.  Rip.  88 r,  3  /«/.  Com. 
I\cp.  iSi.— EXPLAININO  Norfolk  &  VV.  R. 
Co.  V.  Pennsylvania  114  Pa.  St.  256;  Pem- 
bina Con.  Silver  M.  &  M.  Co.  v.  Pennsyl- 
vania, 125  U.  S,  181;  Smith  V.  Alabama, 
124  U.  S.  465. 

.\  municipal  ordinance  imposing  an  an- 
nual tax  u|)ou  a  railroad  company,  which 
passes  through  the  corporate  limits,  is  not 
a  tax  upon  interstate  commerce,  nor  upon 
the  instruments  employed  in  the  transpor- 
tation of  such  commerce,  and  is  valid 
where  authorized  by  state  law.  Piedmont 
R-  Co.  V.  ReidsvilU,  101  A'.  Car.  404,  2  Z. 


*  When  a  municipal  license  tax  on  each  com- 
pany onterinK  corporate  limits  is  noi  a  tax  on 
interstate  commerce,  see  37  Am.  &  Eng.  R. 
Cas.  378  ah:tr.  j 

6  D.  R.  D.— 5. 


R.  A.  284,  2  Int.  Com.  Rep.  416, 8  S.  E.  Rep. 
124. 

And  such  tax  is  not  rendered  invalid  be- 
cause the  properly  of  the  railroad  is  subject 
to  an  ad  valorem  tax  under  the  general 
laws  of  the  state.  Piedmont  R.  Co.  v.  Reids- 
ville,  101  A^.  Car.  404,  2  L.  R.  A.  284,  2 
Int.  Com.  Rep.  416,  8  5.  E.  Rep.  124. 

212.  ICeqiiiriii^  railroad  eiiKi- 
iiuers  to  be  lieeiiNed.-'Ala.  Act  of  Feb. 
28, 1887,  requiring  railroad  engineers  in  that 
Slate  to  be  examined  and  license'  is  not  in 
conflict  with  any  fedeiul  law  'cgulating 
commerce  between  the  states,  wtien  applied 
to  an  engineer  who  drove  an  engine  be- 
tween a  point  in  that  state  and  a  point  in 
anolher  state.  Smith  v.  Alabama,  33  Am. 
&^  Eng.  R.  Cas.  425,  124  (7.  S.  465,  8  Sup. 
Ct.  Rep.  564.— lixi'LAlNKU  IN  McCall  v. 
California,  136  U.  S.  104.  Quoted  in 
Louisville  &  N.  R.  Co.  j/.  Baldwin,  85  Ala. 
619;  Bagg  V.  Wilmington,  C,  &  A.  R.  Co., 
109  N.  Car.  279;  Wigton  v.  Pennsylvania 
R.  Co.,  20  Phila.  (I'a.)  1S4. 

2i:{.  Oil  roreigii  telegpra|ili  eoiii- 
paiiies. — States  cannot  impose  a  license 
tax  on  the  business  of  a  telegraph  company 
so  far  as  it  is  interstate.  Leloup  v.  Port 
of  Mobile,  127  U.  S.  640,  8  Sup.  Ct.  Rep. 
1380 —Followed  in  United  States  Exp. 
Co,  V.  Hemmingway,  39  Fed.  Rep.  60. — 
Western  Union  Tel.  Co.  v.  Alabama  State 
Board,  132  U.  S.  472,  10  Sup.  Ct.  Rep.  161. 
—Followed  in  Gibson  County  w,  Pullman 
South.  Car  Co.,  42  Fed.  Rep.  572. 

A  state  law  imposing  a  license  tax  upon 
foreign  telegraph  companies  doing  business 
within  the  state  of  $1  per  annum  per  mile 
for  the  line  of  poles  and  first  wire,  and  fifty- 
cents  for  each  additional  wire,  is  void,  as  an 
attempt  to  regulate  interstate  commerce. 
Com.  V.  Smith,  92  Ky.  38,  17  i'.  W.  Rep.  187. 

214.  Oil  foreitfii  express  com- 
panics.— An  express  company  engaged  in 
interstate  commerce  cannot  be  restraineft 
or  regulated  as  to  such  business  by  the 
local  or  state  law.  Wells  v.  Northern  Pac.. 
R.  Co.,  10  Sawy.  {U.  S.)  441,  23  Fed.  Refi.. 
469,— Ai'PLViNC.  Pacific  Coast  Steam-Ship 
Co.  V.  Railroad  Com'rs,  9  Sawy.  253. 

An  act  of  a  state  legislature  (Act  Kv. 
March  2,  i860,  as  amended  by  Act  of  1866) 
reguliUing  the  agencies  of  foreign  express 
companies,  by  requiring  the  agents  of  such 
companies  to  obtain  a  license  from  the 
state  ocfore  they  are  permitted  to  carry  on 
business  there,  and  further  requiring  as  a 


66 


INTERSTATE   COMMERCE,  ai5. 


1 


I 


preliminary  to  such  license,  that  such 
agents  shall  deposit  with  the  auditor  a 
statement  of  the  company's  assets  and  lia- 
bilities, and  satisfy  iiim  that  it  lias  an  actual 
capital  of  at  least  $150,000,  and  furtiier 
providing  that  if  any  agent  of  a  foreign  ex- 
press company  engages  in  business  without 
such  license  he  sliall  be  subject  to  fine,  is 
unconstitutional  as  a  regulation  of  inter- 
state commerce,  in  so  far  as  it  applies  to  a 
corporation  of  another  state  engaged  in 
that  business,  although  such  corporation 
may  also  transport  goods  between  points 
within  the  state.  (Fuller,  C.  J.,  and  Gray, 
J.,  dissenting.)  Crutcher  v.  Kentucky  46 
Am.  <S-  Eng.  K.  Cas.  637,  141  U.  S.  47, 
II  Sup.  Ct.  Rep.  851  ;  reversing  40  Am.  &- 
Eng.  R.  Cas.  29,  89  Ky.  6.  12  S.  IV.  Rep. 
141.— Quoted  in  Com.  v.  Smith,  92  Ky. 
38.  Reviewed  in  Minneapolis,  St.  P.  & 
S.  Sie.  M.  R.  Co.  V.  Milner,  57  Fed  Rep. 
276. 

A  statute  of  a  state  requiring  express 
companies  carrying  on  business  in  the  state 
to  pay  a  license  tax  of  $500  per  annum 
where  the  distance  over  which  the  line  of 
the  company  extends  in  this  state  is  less 
than  one  hundred  miles,  and  the  annual  sum 
of  $1000  where  the  distance  is  more  than 
one  hundred  miles,  is  a  regulation  of  inter- 
state commerce  in  so  far  as  it  applies  to 
companies  doing  business  between  this  stale 
and  other  states,  and  is  to  that  extent  in 
violation  of  the  federal  constitution.  Com. 
V  Sw/f/i,  92  Ay.  38,  17  S.  IV.  Rep.  187.— 
QuoiiNG  Crutcher  r/.  Kentucky,  141  U.  S. 
47 ;  Gloucester  Ferry  Co.  v.  Pennsylvania, 
114  U.  S.  196. 

While  the  state  may  impose  a  tax  upon 
property  within  its  borders  owned  by  a 
person  or  company  engaged  in  carrying  on 
interstate  commerce,  yet  when  it  is  appar- 
ent that  the  tax  imposed  is  a  mere  arbitrary 
sum  fixed  by  the  state,  without  regard  to 
tiie  value  of  the  property,  it  will  be  re- 
garded as  a  tax  upon  the  business  of  the 
owner  and,  therefore,  such  a  regulation  of 
interstate  commerce  as  is  forbidden  by  the 
federal  constitution.  Com.  v.  Shtith,  92 
Ky.  38,  17  S.  IV.  Rep.  187. 

The  Mississippi  statute  imposing  an  an- 
nual tax  of  $3000  upon  express  companies 
doing  business  in  the  state,  for  the  privilege 
of  doing  such  business,  is  unconstitutional 
as  to  all  interstate  transportation ;  but  is 
valid  as  to  all  business  which  is  confined  to 
t;  e  state.     United  States  Exp.  Co.  v.  Hem- 


mingway,  39  Fed.  Rep,  60.— FoLLOWiNC, 
Leioup  V.  Port  of  Mobile,  127  U.  S.  640.  8 
Sup.  Ct.  Uep.  1380;  State  Freight  Tax  Case, 
15  Wall.  (U.  S.)  232. 

And  where  the  tax  is  levied*  upon  the 
company  doing  an  interstate  business  it  will 
be  enjoined  until  the  portion  that  is  upon 
the  state  and  the  interstate  business  can  be 
separated  and  shown.  United  States  E.v/>. 
Co.  V.  Hemmingway,  39  Fed.  Rep.  60. 

The  Missouri  Act  of  May  16,  1889,  pre- 
scribing the  mode  of  taxing  express  com- 
panies, only  imposes  a  tax  on  the  business 
done  within  the  state,  and  is  therefore  not 
an  interference  with  interstate  commerce. 
Pacific  Exp.  Co.  v.  Scihert,  44  Fed.  Rep. 
310;  affirmed  in  48  Am.  &*  Eng.  R.  Cas. 
610,  142  U.  S.  339,  3  /«/.  Com.  Rep.  8»o. 

The  statute  does  not  deprive  express 
companies  of  the  equal  protection  of  the 
law,  nor  constitute  inequality  of  taxation, 
simply  because  it  prescribes  a  special  mode 
of  taxing  tliem.  A  state  has  the  right  to  tax 
different  kinds  of  property  in  different  ways. 
Pacific  Exp.  Co.  v.  Seibert,  44  Fed.  Rep.  310  ; 
affirmed  in  48  Am.  &>  Eng.  R.  Cas.  610,  142 
U.  S.  339,  3  Int.  Com.  Rep.  810. 

2.    Regulation  of  Interstate  Carriers  or 
Traffic* 

215.  Power  of  states,  geuernlly.— 

The  following  propositions  may  be  regarded 
as  settled:  (i)  The  transportation  of  mer- 
chandise from  place  to  place  by  railroad  is 
conmierce ;  (2)  the  transportation  of  mer- 
chandise from  a  place  in  one  state  to  a  place 
in  another  is  "  commerce  among  the  states  "; 
(3)  to  fix  or  limit  the  charges  for  such 
transportation  is  to  regulate  commerce  ;  (4) 
a  statute  fixing  or  limiting  such  charges  for 
transportation  from  places  in  one  state  to 
places  in  other  states  is  a  regulation  of  com- 
merce among  the  states ;  (5)  the  power  to 
regulate  such  commerce  is  vested  by  the 
constitution  in  congress ;  (6)  this  power 
of  congress  is  exclusive,  at  least  in  all  cases 
where  the  subjects  over  which  the  power  is 
exercised  are  in  their  nature  national,  or  ad- 
mit of  one  uniform  system  or  plan  of  regu- 
lation. Kaeiser  v.  Illinois  C.  R.  Co.,  16  Aw. 
.  &'  Eng.  R.  Cas.  40,  5  McCrary  (U.  S.)  49^). 
iS  Fed.  Rep.  151.     Carton  v.  Illinois  C.  R. 

*  Regulation  of  interstate  commerce.  Slate 
laws,  see  notes,  7  Am.  &  Eno.  R.  Cas.  634 ;  16 
Id.  44;  18  Id.  440;  27  Am.  St.  Rep.  547;  13  L. 
R.  A.  107. 


..^Sh 


INTERSTATE   COMMERCE,  216. 


67 


Co.,  6  Am.  &*  Eitg.  R.  Cas.  305,  59  /owa 
148,  44  Am.  Rep.  672,  13  A^.  W.  Rep.  drj. 
Com.  V.  Smith,  92  A>.  38,  17  S.  VV.  Rep. 
187.  McGwigiin  V.  Wilmington  «S-  W^'. 
A'.  (■<'..  95  iV.  r<«r.  428.  Baltimore  v.  /V/A- 
^«;;!,7<  i!^  C.  /^.  Co..  3  Pitlsb.  (/'a)  20. 

State  interference  with  interstate  com- 
merce is  absolutely  forbidden  by  the  con- 
ptitution  of  the  United  States,  and  the  fail- 
ure of  congress  to  take  any  action  in  the 
premises  does  not  give  the  states  power  to 
pass  ;my  law  in  relation  thereto.  McGwig- 
ivt  V.  Wilmington  &*  11^.  R.  Co.,  95  A'.  Car. 
4:8.— Following  Passenger  Cases,  7  How. 
(U.  S.)  286;  Hall  V.  De  Cuir.  95  U.  S.  485. 

A  city  ordinance  prohibiting  railroad  com- 
panies from  selling  fruit,  vegetables,  or  per- 
ishable freights  from  their  cars,  platforms, 
or  in  depot  buildings  or  grounds,  is  uncon- 
stitutional and  void,  if  it  be  intended  to 
hinder  competition  with  resident  dealers,  so 
far  as  relates  to  interstate  tradic  that  the 
roads  may  have  brought  in;  but  it  is  valid 
if  It  be  intended  as  a  mere  police  regulation, 
such  as  the  preservation  of  the  public  health. 
or  to  prevent  crowds  from  gathering  at  pub- 
lic places.   Spellman  v.  New  Orleans,  45  Fed. 

lup.  3. 

iiHt.  Under  various  statutes.*— III. 

Act  of  1874,  ^  25,  which  requires  all  regular 
passenger  trains  to  stop  a  sufficient  length 
of  time  at  railroad  stations  of  county  seats 
to  receive  and  let  off  passengers  with  safety, 
is  not  in  conflict  with  that  provision  of  the 
constitution  of  the  United  States  empower- 
iiijj  C(jnj;ress  to  regulate  commerce  among 
llie  states;  neither  is  it  invalid  as  interfer- 
ing with  the  carrying  of  the  mails.  Illinois 
C  R.  Co.  V.  People,  143  ///.  434, 33  N.  E.  Rep. 

m- 

Iowa  Act  of  March  23,  1874,  is  unconsti- 
tutional and  Vv3id,  so  far  as  it  attempts  to 
provide  a  f.arifl  of  maximum.charges  for  in- 
terstate iratfic  or  passengers.  Kaeiser  v. 
Illinois  C.  R.  Co.,  16  Am.  5-  Eng.  R.  G1.9.40, 
5  MiCrary  (  U.  S.)  496,  18  Fed.  Rep.  IJI.— 
Foi.LowKU  IN  Illinois  C.  R.  Co.  7/.  Stone, 
18  .\m.  A  Eng.  R.  Cas,  416,  20  Fed.  Rep. 
468.  Quoted  in  Railroad  Com'rs  v.  Char- 
lotte. C.  &  A.  R.  Co..  26  Am.  &  Eng.  R. 
Cas.  29,  22  So.  Car.  220. 

Sec.  57,  ch.  23,  Comp.  Laws  of  Kansas, 
1878,  known    as  the  "  Maximum    Freight 


'Statute  rcKulating  rates.  When  unconstitu- 
tional as  a  regulation  of  interstate  commerce, 
Me  note,  31  Am.  &  Enc.  R.  Cas.  si. 


Rate  Law  "of  1868,  had  no  application  to 
fix  or  limit  the  charges  for  transportation  of 
freight  from  another  state  into  this  state, 
because  if  it  was  intended  to  apply  to  such 
interstate  commerce  it  was  in  violation 
of  art.  I.  §  8,  of  the  constitution  of  the 
United  States,  and  therefore  void.  Hardy 
V.  Atchison,  T.  &*  S.  F.  R.  Co.,  18  Am.  &* 
Eng.  R.  Cas.  432.  32  Kan.  698.  5  Pac.  Rep.  6. 

The  Act  of  the  Mississippi  I  egislature  of 
March  11.  1884,  regulating  the  rates  of  trans- 
portation of  railroads,  is.  so  far  as  it  relates 
to  the  Mobile  &  Ohio  K.  Co.,  a  railroad  in- 
corporated in  several  states,  and  running 
therein,  a  regulation  of  interstate  commerce, 
and  void.  Illinois  C.  R.  Co.  v.  Stone,  18  Am. 
&*  Eng.  R.  Cas.  416,  20  Fed.  Rep.  468.— 
DiST.NUUlSHiNU  Munn  v.  Illinois,  94  U.  S. 
113;  Chicago,  B.  &  y.  R.  Co.  v.  Iowa,  94  U. 
S.  155  ;  Peik  v.  Chicago  &  N.  W.  R.  Co.,  94 
U.  S.  164.  Following  Kaeiserz/.  Illinois C. 
R.  Co.,  18  Fed.  Rep.  151  ;  Louisville*  N.  R. 
Co.  V.  Railroad  Commission,  19  Fed.  Rep. 
679. — yuoTKl)  IN  Railroad  Com'rs  7/.  Char- 
lotte, C.  &  A.  R.  Co.,  26  Am.  &  Eng.  R. 
Ciis.  29,  22  So.  Car.  220. 

The  Act  of  the  Legislature  of  Missouri  of 
March  18,  1881  (Laws,  p.  83),  requiring  rail- 
road companies  to  furnish  double-decked 
cars  for  the  shipment  of  sheep,  and  provid- 
ing a  penalty  for  failing  to  do  so,  so  far  as 
a  tempted  to  be  applied  to  interstate  sliip- 
I'.cnts.  would  be  a  regulation  of  cotiimerce 
and  violation  of  the  federal  constitution 
(art.  I.  §.  8).  Stanley  v.  Wahash,  St.  L.  &* 
/'.  R.  Co.,  42  Am.  &•  Eng.  R.  Cas.  328,  100 
Mo.  435.  13  .V.  W.  Rep.  709.  8  L.  R.  A.  549, 
3  Int.  Com.  Rep.  1 76. 

I^ew  York  Act  of  iSSy.ch.  116,  as  amended 
in  1888,  ch.  189,  relating  to  the  heating  of  pas- 
senger cars,  is  but  a  police  regulation,  and 
is  not  void  as  an  attempt  to  regulate  inter- 
state commerce.  People  v.  New  York,  A'. 
H.  &*  H.  R.  G>.,  55  Hun  409.  29  A'.  Y.  S.  R. 
172.  8  N.  Y.  Supp.  672;  affirmed  in  123  N. 
Y.  635.  mem.,  25  A^.  E.  Rep.  953,  mem.,  33 
N.  Y.S.  R.  1028.— Quoting  Thorpe  v.  Rut- 
land &  B.  R.Co.,  27  Vt.  149. 

Wisconsin  Act  of  March  11,  1874.  entitled 
"  An  act  relating  to  railroads,  express,  and 
telegraph  companies  in  the  state  of  Wis- 
consin." only  applies  to  such  commerce  as 
is  confined  to  the  state,  and  is  therefore 
valid.  Peik  v.  Chicago  6-  N.  W.  R.  Co.,  94 
U.  S.  164,  16  Am.  Ry.  Rep.  413.— Followed 
IN  Chicago,  M.  &  St.  P.  R.  Co.  v.  Ackley. 
94  U.  S.  179- 


\ 


\ 


\1 


•lif 


\      \ 


68 


INTERSTATE   COMMERCE,  i:i7-li21. 


217.  Under  Texas  statutes.— Texas 

Const,  art.  lo,  §  5,  prohibiting  railroad 
companies  from  controlling  competing  or 
parallel  lines,  is  not  void  as  attempting  to 
regulate  interstate  commerce,  when  applied 
loan  agreement  between  parallel  lines  form- 
ing a  tralFic  association  for  the  purpose  of 
"  preventing  sudden  and  extreme  changes 
in  Texas  rates,"  though  some  of  the  iralfic 
embraced  is  partly  without  the  state.  Where 
some  of  ihe  parties  to  such  agreement  are 
Texas  corporations,  the  agreement  as  to 
them,  under  the  constitutional  provision,  is 
illegal,  and  being  illegal  as  to  them  is  illegal 
as  to  all.  (Ju//,  C.  6-  5.  /'.  J<.  Co.  v.  State, 
36  Am.  (&*  Jin^.  Ji.  Las.  481,  72  Tfx.  404,  i 
L.  A'.  A.  849,  10  S.  W.  Kep.  81,  2  ////.  Com. 

J<<^P-  335- 

The  Texas  statute  which  imposes  a  pen- 
alty upon  railroad  companies  refusing  to 
deliver  freight  upon  payment  or  tender  of 
the  charges  specified  in  the  bill  of  lading, 
is  not,  even  when  applied  to  freight  shipped 
into  the  state,  a  regulation  of  interstate 
commerce,  but  is  a  proper  exercise  of  the 
police  power  of  the  state,  and  is  valid. 
Gulf,  C.  &*  S.  F.  K.  Co.  V.  Ihvyer,  42  Am. 
Sf  Eng.  R.  Cas.  503,  75  Tex.  572,  12  5.  //'. 
Rep.  looi. — Followed  in  Southern  Pac. 
R.  Co.  V.  Haas,  49  Am.  iSr  Eiig.  R.  Cas.  37, 
17  S.  W.  Rep.  (yoo.—Ft.  IVort/t&'D.  C.  R.  Co. 
V.  Lillixrd,\  Tex.  A  pp.  (Civ.  Cas.)  123,  16  5. 
W.  Rep.  654.— FoLLOWiNO  Gulf.  C.  &  S. 
r.  R.  Co.  V.  Dwyer,  75  Tex.  572.  12  S.  W. 
Rep.  looi. 

Texas  Rev.  St.  art.  278,  preventing  com- 
mon carriers  from  limiting  their  liability, 
applies  to  domestic  carriers  on  land  within 
the  stale,  or  on  waters  entirely  within  the 
state,  and  was  not  intended  by  the  legis- 
lature to  apply  to  or  affect  interstate  car- 
riage and  traffic.  Missouri  Pac.  R.  Co.  v. 
Harris,  i  Tex.  App.  (Civ.  Cas^  730. 

218.  Statute  requiriui;  notiee  of 
arrival  of  passeuf^er  trains.— While  a 
statute,  requiring  notice  under  certain  con- 
ditions of  the  arrival  of  passenger  trains, 
deals  with  persons  and  corporations  en- 
gaged in  interstate  commerce,  yet  the  stat- 
ute is  a  proper  police  regulation,  which 
does  not  interfere  with  interstate  com- 
merce, and  is  in  the  power  of  the  legisla- 
ture to  enact.  State  v.  Indiana  &*  I.  S.  A*. 
Co.,  133  Ind.  69,  32  N.  E.  Rep.  817. 

2in.  Missouri  Texas  cattle  act.— 
The  statute  (Wagn.  Mo.  St.  p.  251.  %  1), 
known  as  the  Texas  Cattle  Act,  prohibiting 


the  introduction  of  Texas,  Mexican,  or  In- 
dian cattle  into  the  state  between  March  i 
and  November  i,  unless  they  had  been  kept 
the  entire  previous  winter  in  the  state,  is  in 
conflict  with  that  provision  of  the  constitu- 
tion of  the  United  States  conferring  upon 
congress  the  power  to  regulate  commerce 
among  the  stales.  Gilmorc  v.  Hannibal  Sr^ 
St.  J.  R.  Co.,  67  Mo.  323.  — Foi.LowiNc;  Han- 
nibal tS:  St.  J.  R.  Co.  V.  Hiiscn.  95  U.  S. 
465.  OvKKRULiNO  Wilson  V.  Kansas  City, 
St.  J.  &  C.  H.  R.  Co.,  60  Mo.  1S4;  Dimon'd 
V.  Kansas  City,  St.  J.  &  C.  B.  R.  Co.,  60  Mo. 
393 ;  Mercer  v.  Kansas  City,  St.  J.  &  C.  M. 
R.  Co.,  60  Mo.  397  ;  Kenney  v.  Hannibal  & 
St.  J.  R.  Co.,62  Mo.  476. 

220.  Exclusive  |>ower  in  coii{>:reNs 
—Effect  of  al>scnce  of  federal  let;is- 
lation. — A  state  statute  intended  to  regu- 
late, or  to  tax,  the  transmission  of  persons 
or  property  from  one  state  to  another  is  un- 
constitutional, the  power  being  reserved  ex- 
clusively to  the  United  States,  and  the  fact 
that  congress  may  not  have  legislated  on 
the  subject  does  not  give  the  states  the 
right  to  do  so.  Wabash,  St.  L.  &•  P.  R. 
Co.  v.  Illinois,  26  Am.  &•  £nt[.  R,  Cas,  i, 
118  U.  S.  557,  7  Sup.  Ct.  Rep.  4. 

Transportation  of  merchandise  through  a 
state,  or  from  one  state  to  another,  although 
the  carriage  may  be  continuous,  is  inter- 
state commerce,  and  beyond  the  control  of 
the  state,  even  wh»»re  congress  has  taken  lU) 
action  upon  the  subject.  Railroad  toni'rs 
V.  Charlotte,  C.  &•  A.  R.  Co.,  26  Am.  iS-  Fut;. 
R.  Cas.  29,  22  So.  Car.  220. 

Any  regulation  of  freights  for  the  trans- 
portation from  Columbia  in  this  state  to 
points  in  the  state  of  North  Carolina,  by 
tlie  statutes  of  the  state,  is  beyond  the 
power  of  the  state,  because  of  its  being  an 
invasion  of  the  power  exclusively  vested  in 
congress  by  th«  constitution  of  the  United 
States.  Railroad  Com'rs  v.  Charlotte,  C.  &' 
A.  R.  Co.,  26  Am.  &*  Eng.  R.  Cas.  29,  22  .SVi. 
Car.  220. 

221.  Power  of  state  railroad  coni- 
niissioners.*— The  railroad  and  warehouse 
commission  of  Minnesota  has  no  authority 
to  prescribe  rates  for  transportation  by  com- 
mon carriers  in  another  state.  It  cannot 
fix  the  rates  for  carriage  between  two  points 
within   this  state,  over  a  route  extending 

'State  railroad  commissions  cannot  regulate 
interstate  commerce,  see  36  Am.  &  Enc,  R.  Cas. 
47,  ntstr.    See  Railway  Commissioniks. 


INTERSTATE   COMMERCE,  322,  223. 


69 


across  a  neighboring  state.  Such  power  is 
vested  exclusively  in  congress.  State  ex 
rel.  V.  Chicago,  St.  P.,  M.  &•  O.  K.  Co.,  yj 
Am.  »5>»  Eng.  R.  Cas.  602,  40  Minn,  267,  41 
,V.  W.  lii'p.  1047.  3  L.  R.  A.  238.  2  Int.  Com. 
A'f/>.  519.— Approving  Lord  v.  Goodall,  N. 
&  \\  Steamship  Co.,  102  U.  S.  541.  Criti- 
cising Com.  V.  New  Yoric,  L.  E.  &  W.  R. 
Co,  2  Int.  Com.  Rep.  227,  ;/. ;  Leiiigli 
Viiiley  R.  Co.  v.  Com.,  2  Int.  Com.  Rep.  226. 
Distinguishing  Piiciiic  Coast  Steam-Ship 
Co.  V.  Railroad  Com'rs,  9  Sawy.  (U.  S.)  253. 
Kkvikwing  Steriiberger  v.  Cape  Fear  »S:  Y. 
V.  K.  Co.,  29  So.  Car.  510,  7  S.  E.  Rep.  836. 
— Kkkkrrku  to  in  Burlington,  C.  R.  &  N 
R.  Co.  V.  Dey.  82  Iowa  312. 

The  South  Carolina  general  railroad  law 
is  unconstitutional  so  far  as  it  attempts  to 
give  the  railroad  commissioners  of  the  state 
power  to  regulate  charges  between  points  in 
ttie  state  and  points  without  the  state.  Rai/- 
road  Com'rs  v.  Charlotte,  C.  &*  A.  R.  Co.,  26 
Am.  &•  Eng.  R.  Cas.  29,  22  So.  Car.  220. 

And  such  commission  has  no  jurisdiction 
of  a  complaint  for  unlawful  freight  charges 
made  by  a  company  whose  line  is  partly  in 
an  adjoining  state.  Sternberger  v.  Cape 
Fear  &^  Y.  V,  R.  Co.,  35  Am.  &*  Eng.  R. 
Cas.  693,  29  .So.  Car.  510,  7  5.  E.  Rep.  836,  2 
Int.  Com.  Rep.  426,  3  L.  R.  A.  105.  — Quor- 
ING  Railroad  Com'rs  v.  Charlotte,  C.  «St  A. 
R.  Co.,  22  So.  Car.  220.  —  Revikweij  in 
State  ex  rel.  v.  Chicago,  St.  P.,  M.  &  O.  R. 
Co.,  37  Am.  &  Eng.  R.  Cas.  602,  40  Minn. 
267,  41  N.  VV.  Rep.  1047,  3  L.  R.  A.  238.  2 
Int.  Com.  Rep.  519. 

222.  Colored  |m!4suiit;<>r.s.— La.  Act 
of  Feb.  23,  1869,  providing  that  "All  per- 
sons engaged  within  this  state  in  the  busi- 
ness of  common  carriers  of  passengers  shall 
have  the  right  to  refuse  to  admit  any  person 
to  iheir  railroad  cars,  street  cars,  steam- 
boats, or  other  water  craft,  stage  coaches, 
omnibuses,  or  other  vehicles,"  for  non-pay- 
ment of  the  fare,  or  for  bad  character  or 
conduct,  but  that  no  discrimination  shall  be 
made  "on  account  of  race  or  color,"  is  un- 
constitutional in  so  far  as  it  afTects  inter- 
state commerce.  Hall  v.  De  Cuir,  95  U.  S. 
485— Di.STiNGUiSHKi)  IN  Louisvillc,  N.  O. 
&  T.  R.  Co.  V.  State,  39  Am.  k  Eng.  R.Cas. 
399  f''')  Miss.  662,  6  So.  Rep.  203 ;  Louisville, 
^i.  ()  k  T.  R.  Co.  V.  Mississippi.  41  .Xm.  & 
•■; '«.  K.  Cas.  36,  133  U.  S.  587,  10  Sup.  Ct. 
Kep,  348.  Followed  in  Britton  v.  At- 
lanta k  C.  A.  L.  R.  Co.,  88  N.  Car.  S36 ;  Mc- 
Gwigan  v.  Wilmington  &  W.  R.  Co.,  95  N. 


Car.  428.  Quoted  in  People  v,  Wabash. 
St.  L.  &  P.  R.  Co..  7  Am.  &  Eng.  R.  Cas. 
628,  104  111.476;  Hardy  v.  Atchison,  T.  & 
S.  F.  R.  Co.,  18  Am.  &  Eng,  R.  Cas.  432,  32 
Kan.  698.  Reviewed  in  Wigton  v.  Penn- 
sylvania R.  Co.,  20  Phila.  (Pa.)  184. 

II'A.  Sunday  lnw.s.*— The  provision 
of  Ga.  Code,  §  4578,  making  it  a  misde- 
meanor to  run  a  freight  train  upon  any  rail- 
road in  the  state  on  the  Sabbath  day,  is  a 
regulation  of  internal  police,  and  not  a  reg- 
ulation of  commerce.  It  is  not  in  conflict 
with  the  constitution  of  the  United  States, 
even  as  to  freight  trains  passing  through 
the  state  from  and  to  adjacent  states,  and 
laden  exclusively  with  goods  and  freight 
received  on  board  before  the  trains  entered 
the  state,  and  consigned  to  points  beyond 
its  limits.  Henniitgton  v.  State,  57  Apn,  &* 
Eng.  R.  Cas.  42,  90  Ga.  396,  17  S  E.  Rep. 
1009. — Approving  State  f.  Baltimore  «&  O. 
R.  Co.,  18  Am.  &  Eng.  R.  Cas.  466,  24  W. 
Va.  783.  Disapproving  Norfolk  &  VV.  R. 
Co.  V.  Com.,  47  Am,  &  Eng.  R.  Cas.  i,  88 
Va.  95,  13  S.  E.  Rep.  340. 

A  court  of  equity  has  power  to  grant  an 
injunction,  in  an  action  against  the  Board 
of  Police  of  the  city  of  New  York,  a  cor- 
poration, to  re^jtrain  them  from  interfering 
with  the  necessary  operations  and  business 
of  an  express  company  engaged  in  the  busi- 
ness of  interstate  commerce,  even  though  a 
law  of  the  state  of  New  York  prohibits  any 
such  operations  and  business  on  Sunday, 
and  such  interference  was  pursuant  to  such 
law.  I) in sm ore  v.  AVw  Y'orh  Board  of  Po- 
lice, 12  Abb.  N.  Cas.  {N.  K)  436. 

If  the  New  York  Penal  Code,  relating  to 
work  on  the  Sabbath  day,  is  susceptible  of 
such  a  construction  as  would  interfere  with 
the  interstate  trafliic  of  an  express  company, 
such  provisions  are  unconstitutional  and 
void,  as  violating  the  provisions  of  the  con- 
stitution of  the  United  States,  which  dele- 
gates to  congress  the  exclusive  power  to 
regulate  commerce  among  the  several  states. 
Adams  Exp.  Co.  v.  Hoard  of  Police,  65  How. 
Pr.  (iV.  F.)  72.— Following  Hannibal  & 
St.  j.  R.  Co.  V.  Husen.  95  U.  S.  469. 

An  express  company  under  New  York 
laws  is  not  justified  in  transacting  its  ordi- 
nary business  on  Sunday,  or  in  receiving 
and  delivering  merchandise  on  that  day  in 
the  same  place,  but  it  has  a  right  to  move 
its  interstate  business,  or  perishable  articles. 


'         T-^'TiA 


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,  If 
1 


•See  Si'NDAV,  O. 


t\^ 


INTERSTATE   COMMERCE,  224-326. 


on  that  day,  and  may  enjoin  the  police  of  a 
city  from  interfering  with  such  business. 
Adams  Exp.  Co.  v.  Board  0/  Police,  65  hoiv. 
Pr.  {N.  V.)  72. 

Statutes  forbidding  interstate  freight 
trains  to  run  on  Sunday  are  by  tlieir  nec- 
essary operation,  whatever  their  professed 
objec.,a  regulation  of,  or  an  obstruction  to, 
interstate  commerce.  Norfolk  &-  W.  li. 
Co.  V.  Com.,  an  Am.  <S-  Eng.  R.  Cas.  i,  88 
/'ij.  95.  x^S.E.Kep.  340.— Disapproving 
State  V.  Baltimore  &  O.  R.  Co.,  24  W.  Va. 
783.  Quoting  Hannibal  &  St.  J.  R.  Co.  v. 
Husen.  95  U.  S.  465 ;  Wabash,  St.  L.  &  P. 
R.  Co.  V.  Illinois,  118  U.  S.  557;  Leisy  v. 
Hardin,  135  U.  S.  100;  Norfolk  &  W.  R. 
Co.  V.  Pennsylvania,  136  U.  S  114.  Quot- 
ing AND  DISTINGUISHING  Cooleyr/.  Phila- 
delphia Port  Wardens,  12  How.  299. 

Va.  Code,  1887,  J  3891,  relating  to  Sunday 
trains,  is  inconsistent  with  United  States 
Constitution,  art.  i,  §  8,  giving  congress 
power  to  regulate  interstate  commerce,  and 
void  as  to  trains  running  between  different 
states.  Norfolk  &»  IV.  R.  Co.  v.  Com.,  47 
Am.  C"  Eng.  R.  Cas.  i,  88  Va.  95,  13  S.  E. 
Rip.  340.— Disapproved  in  Hennington  v. 
State,  90  Ga.  396. 

Code  of  West  Virginia,  ch.  149,  §§  16,  17, 
making  ordinary  labor  on  the  Sabbath  day 
penal,  is  not  to  be  regarded  as  an  attempt 
to  regulate  commerce  among  the  states, 
when  applied  to  the  interstate  freights  of  a 
railroad.  It  is  purely  a  law  relating  to  the 
internal  policy  of  the  state,  and  dues  not 
violate  that  provision  of  the  constitution  of 
the  United  States  conferring  upon  congress 
tlie  power  to  regulate  commerce  among  the 
states.  Stale  v.  liallimore  &•  0.  R.  Co.,  18 
Am.  6-  Eng.  R.  Cas.  466,  24  IV.  Va.  783. 

224.  Intoxicating  liqiioris— "Ori{;- 
iuul  pni'ltnKeM."  *— Iowa  Code,  §  1553,  as 
amended  by  the  act  of  April  5, 1886,  making 
it  an  otiense  for  any  common  nrrier  to  bring 
intoxicating  liquors  into  the  state  without 
first  having  a  certificate  from  a  county  au- 
ditor, as  therein  provided  for,  is  void,  as 
an  attempt  to  regulate  commerce  between 
the  states.  Bowman  v.  Chicago  Sr*  N.  IV. 
R.  Co.,  125  [/.  S.  465,  8  Sup.  a.  Rep.  689.— 
Followed  in  State  v.  Crecden,  40  Am.  & 
Eng.  R.  Cas.  31,  78  Iowa  556,  7  L.  R.  A. 
295,  43  N.  W.  Rep.  673. 

*  Importations  of  intoxicating  liquors  under 
Interstate  Commerce  Law.  "OrlKina!  package." 
State  prohibitory  laws,  see  note,  10  L.  R.  A.  616. 


Such  statute,  being  void,  is  no  defense  to 
a  suit  against  a  railroad  for  refusing  to 
carry  beer  into  the  state.  Bowman  v.  C/ti- 
cago  6-  N.  IV.  R.  Co.,  125  U.  S.  465.  8  Sup. 
Ct.  Rep.  689. 

A  state  statute,  prohibiting  the  sale  of 
intoxicating  liquors  except  for  pharmaceu- 
tical, medicinal,  chemical,  or  sacrameniul 
purposes,  and  under  a  license,  is,  as  applied 
to  a  sale  by  the  importer,  and  in  the  origi- 
nal packages  or  kegs,  unbroken  and  un- 
opened, of  such  liquors  manufactured  in 
atid  brought  from  another  state,  unconsti- 
tutional and  void, as  repugnant  to  the  clause 
of  the  constitution  granting  to  congress  the 
power  to  regulate  commerce  with  foreign 
nations  and  among  the  several  states.  Leisy 
v.  Hardin,  135  U.  S.  100,  10  Sup.  Ct.  Rep. 
681.— Overruling  Peirce  v.  New  Hamp- 
shire, 5  How.  (U.  S.)  554.— Followed  in 
State  ex  rel  v.  Winters,  44  Kan.  723, 10  L.  R. 
A.  616,  25  Pac.  Rep.  235. 

Where  liquors  are  imported  in  small  bot- 
tles, each  wrapped  in  paper  and  labeled 
"  Original  package,"  and,  for  the  purpose  of 
facilitating  shipment,  packed  in  an  open 
box  marked  with  the  number  and  size  of 
the  bottles, the  box  is  the  original  package; 
but  where  the  carrier,  for  the  purpose  of 
facilitiiting  transportation,  furnishes  the 
box,  the  bottle  constitutes  the  original 
package.     Keilh  v.  State,  91  Ala.  2,  8  So. 

J^(p-  353.  'o  L-  1^-  ^-  430. 
225.  Interstate  Iirid{;e8. — It  is  not  a 

regulation  of  interstate  commerce  for  the 
state  of  Kentucky  to  regulate  rliarRCs  for 
the  use  of  a  bridge  tcross  the  Ohio  River, 
where  it  is  a  line  betv  een  states  and  owned 
by  a  Kentucky  corpc  ration.  Com.  v.  Co?'- 
ington  <S-  C.  Bridge  Co.,  (Ky.)  54  Am.  c" 
Eng.  R.  Cas.  461,  2>  .S".  W.  Rep.  1042. 

220.  AlahaiNa  statute  superseded 
i>y  Interstate;  Ciuiinieree  Aet.— As  to 
contracts  for  the  transportation  of  goods  by 
railroad  from  another  state  into  Alabama, 
the  provisions  of  the  Alabama  statute  pro- 
hibiting, under  a  penalty,  extortionate  or 
discriminating  rates  or  charges  (Code,§  1 1 59) 
arc  superseded  and  rendered  inoperative  by 
the  provisions  of  the  act  of  congress  known 
as  the  "Interstate  Commerce  Law";  liut 
the  consignor  and  consignee  of  goods  not 
being  chargeable  with  notice  of  the  sched- 
ule of  rates  established  and  fixed  by  tlie 
interstate  commerce  commission,  they  m<iy 
lawfully  contract  for  the  transportation  of 
goods  at  a  less  rate;  and  the  consignee  is 


INTERSTATE   COMMERCE,  227,  228 INTERVENTION,  1.       71 


entitled  to  recover  the  goods  from  the  car- 
rier who  gave  the  bill  of  lading  on  payment 
or  lender  of  the  charges  therein  specified, 
unless  it  is  shown  that  he  had  notice  of  the 
published  schedule  of  rates.  Mobile  &*  O. 
H.  Co.  V.  Dismitkes,  49  Am.  (S-  Etig.  A'.  Las. 
42,  94  A/a.  131,  10  So.  Rep.  289. 

3.  State  Inspection  Laws, 

227.  Cliari^e  fur  iiiHpectiii^  flour 
or  meat  bruiig:lit  into  state.— Va.  Act 

of  March,  1867,  imposing  a  charge  for  in- 
specting flour  brought  into  the  state,  but 
not  upon  flour  manufactured  in  the  state,  is 
unconstitutional  as  an  attempt  by  a  state 
to  regulate  commerce  between  the  states. 
Voigitt  V.  Wright,  141  U.  S.  62,  11  Sup.  Ct. 
Rip.  S55. 

Va.  Act  of  February  18,  1890,  entitled 
"  An  act  to  prevent  the  selling  of  unwhole- 
some meat,"  and  making  it  unlawful  to  offer 
for  sale  any  meat  which  has  been  slaugh- 
tered one  hundred  miles  or  more  from  the 
place  where  it  is  offered  for  sale,  unless  it 
has  been  previously  inspected  by  local  in- 
spectors, but  does  not  require  the  inspection 
of  meat  slaughtered  within  one  hundered 
miles  of  the  place  where  it  is  offered  for 
sale,  is  unconstitutional  and  void  as  being 
in  restraint  of  interstate  commerce  when- 
ever applied  to  meat  shipped  into  the  state 
from  other  states.  Brimmer  v.  liebman, 
138  U.  S.  78.  II  Sup.  Ct.  Kep.  213. 

228.  Olmrge  for  inspectiiii;  (;rain. 
—North  Dakota  Act  of  1890,  ch.  188,  pro- 
viding for  the  storage  of  grain,  and  requir- 
ing it  to  be  inspected  and  graded,  and  con- 
stituting the  inspection  charges  a  lien  on 
the  grain,  is  a  regulation  of  interstate  com- 
merce when  applied  to  grain  in  the  hands 
of  carriers  destined  for  other  states;  and 
the  inspectors  cannot  require  such  carriers 
to  open  cars  containing  wheat  consigned  to 
other  states  for  inspection  at  the  state  line. 
Great  Northern  R.  Co.  v.  Walsh,  47  Fed. 
Rep.  406. 


INTERSTATE  COMMERCE  ACT. 

Discrimination  as  between  places  under,  see 
Discrimination,  3!>. 

Effect  of,  on  powers  of  states  to  regulate 
charges,  see  Charges,  1 2. 

Issuance  of  free  passes  as  affected  by,  see 
I'asses,  5. 

Remedy  for  discrimination  under,  see  Dis- 
crimination, 73. 


Removal  of  causes  arising  under,  see  Re- 
moval OF  Causks,  to. 

Rights  of  colored  persons  under,  see  Colored 
Persons,  14. 

See  Imers  lATK  Co.mmerce. 


if. 


INTERSTATE  ^FREIGHTS. 

Discrimination  in,  sec  Discrimination,  71f 

72. 
Power  of  railway  commistiioners  over,  see 

Railway  Commissioners,  38,  30. 
Texas  rule  as  to   limitation  of  liability  for 

negligence  as  respects,  s<>e  Carriage  of 

Merchandise,  482,  483. 


INTERVENING  CAUSE. 
Effect  of.  on  doctrine  of  contributory  negli- 
gence, see  Crossings,  Injuries,  etc.,  at, 
205. 


INTERVENTION. 

By  attorney-general,  in  suits  against  corpo- 
ration, see  Attorney  Gf.nekal,  5. 

—  stockholders  in  suits  against  corporation, 

see  Srocmioi.i'KRs,  80. 
Costs  of  proceedings  in,  see  Costs,  10. 
In  attachment  suits,  see  Attachment,  etc., 

»5. 

—  foreclosure  suits,  sec    MoRTCACiEs,  18S- 

188,  201. 

—  suits  by  stockholders,  see  Stockholders, 

124. 
1.  Wlio  may  intervene.— In  the  fed- 
eral courts  a  person  having  an  interest, 
though  not  a  party  to  the  suit,  may  inter- 
vene to  assert  his  rights  without  reference 
to  the  citizenship  of  the  parties.  Osborn  v. 
Mich^an  Air  Line  R.  Co.,  2  I'lipp.  {U.  S.) 

503- 

Where  a  railroad  mortgage  is  executed 
to  trustees  to  secure  bondholfiers,  if  the 
trustees  fail  to  act,  any  of  the  bondholders, 
for  themselves  and  in  behalf  of  the  rest,  may 
bring  suit  to  foreclose,  and  make  the  trus- 
tees defendants ;  and  it  is  not  necessary  to 
make  all  of  the  bonfl holders  parties,  es- 
pecially where  thev  are  numerous;  but 
those  not  named  as  parties  may  come  in 
and  take  the  benefit  of  a  decree,  or  show  it 
to  be  erroneous,  or  entitle  themselves  to  a 
rehearing;  or,  in  other  words,  they  may  in- 
tervene and  make  themselves  actual  p.Titias, 
so  long  as  the  proceedings  are  in  fieri. 
Campbell  v.  Texas  <S-  A'.  O.  R.  Co.,  1  Woods 
{l/.S.)  368. 


Si 


4 

"A 

''1 


INTERVENTION,  2. 


:;! 


And  where  a  suit  is  thus  commenced 
bondholders  who  are  not  named  as  parties 
have  no  right  to  commence  an  independent 
and  original  suit  to  loreciosc  the  mortgage. 
They  cm  only  intervene  and  hrcoine  actual 
parties  to  the  former  suit,  and  then  make 
such  application  to  the  court  for  relief  as 
it  is  competent  for  parties  to  make  in  the 
same  suit ;  or  they  niiiy  institute  such  other 
auxiliary,  revisory,  or  supplemental  proceed- 
ings as  a  partv  to  the  suit  might  institute. 
CiV>tpbell\.  Texas  ^N.  O.K.  Co.,  i  Woods 

Where  a  railroad  company  is  sued  for  in- 
fringing a  patent  on  a  certain  kind  of  car, 
and  it  answers  disclaiming  any  owneiship 
to  the  cars,  or  any  interest  in  the  patent, 
and  that  it  is  simply  transporting  the  cars 
for  other  parties  who  are  the  real  owners, 
the  real  owners  of  the  cars  may  file  a  peti- 
tion, setting  up  their  rights,  and  be  made  a 
party  and  defend  the  suit.  Staniiard  Oil 
iJo.  V.  Southern  Pac,  R.  Co.,  54  Fed.  Rep. 
521,7  U.  S.  App.  636,4  C.  C.  A.\<)\\  affirm- 
ing 48  Fed.  Rep.  109. — APPLYING  Ameri- 
can C.  T.  Supply  Co.  V.  McCready,  17 
Blatchf.  (U.  S.)  291. 

Where  one  company,  claiming  to  own 
'Certain  corporate  franchises  and  property, 
has  instituted  proceedings  in  equity  to  se- 
cure its  alleged  rights,  it  is  not  irregular  to 
admit  as  a  party  to  the  controversy  another 
company  who  hies  its  petition  for  that  pur- 
pose, where  the  latter  claims  the  same  fran- 
chises and  property,  in  order  that  the  rights 
of  both  companies  may  be  litigated  and  de- 
termined in  the  same  proceeding.  Wash- 
ington, A  &'  G.  R.  Co.  V.  Martin,  7  D.  C. 
120.— Quoting  Ohio  &  M.  R.  Co.  v. 
Wheeler,  i  Black  (U.  S.)  297. 

Where  the  road  of  a  company  passes  into 
two  states  in  each  of  which  it  is  a  domestic 
corporation,  and  the  trustee  in  a  mortgage 
upon  the  whole  road  first  brings  a  suit  in 
one  state  to  foreclose  the  mortgage,  and 
afterward  brings  an  ancillary  suit  in  the 
other  state  for  the  same  purpose,  the  plain- 
tilT  in  said  suits  cannot  oliject  to  or  prevent 
ii  lien  creditor  of  the  railroad  company,  who 
lias  not  filed  his  claim  in  the  first  suit,  from 
intervening  in  the  second  to  establish  his 
lien.  Fidelity  I.,  T.  &•  S.  /).  Co.  v.  Shenan- 
doah Valley  R.  Co.,  3S  Am.  &*  Fng.  R.  Cas. 
577.  32  W.  Va.  244.  9  S.  E.  Rep.  180. 

2.  Who  may  uot  iiiterv«iie.— Per- 
sons who  are  not  parties  to  a  suit  cannot,  in 
i;-neral.  file  a  pet  tion  therein  for  any  cause ; 


hut  persons  belonging  to  a  class  represented 
in  the  suit,  such  as  mortgage  creditors,  rep- 
resented by  the  trustees  of  the  mortgage, 
are  regarded  as  quasi  parties,  and  may  be 
henrd  on  petition  or  motion.  Fidelity  T. 
St'S.  r.  Co.  V.  AM/le  .St.  R.  Co.,  53  Fed. 
Rep.  850.— FoLiA)\viNG  Anderson  7>.  Jack- 
sonville. P.  &  M.  R.  Co.,  2  Woods  (U.  S.) 
628. 

Where  a  suit  for  the  foreclosure  of  a  rail- 
road mortgage  is  properly  instituted,  the 
relief  prayi-d  for  being  proper  to  grant,  a 
receiver  being  appointed,  a  liecrec  pro  con- 
fesso  being  regularly  entered,  and  the  re- 
ceiver having  properly  reported,  and  the 
court  has  entered  judgment  on  such  report 
for  a  sale  of  the  road,  individual  stockhold- 
ers cannot  be  permitted  to  intervene  and 
file  a  cross-bill  on  a  general  charge  of  fraud 
and  collusion  on  the  part  of  the  receiver, 
and  erroneous  judgment  on  the  part  of  the 
court  in  making  the  order  of  sale.  Forbes 
V.  Memphis,  E.  P.  <S-  P.  R.  Co.,  2  Woods 
{U.  S.)  323. 

Where  the  bill  is  filed  on  behalf  of  plain- 
tiffs and  all  other  stockholders,  creditors  or 
bondholders  of  the  company,  such  stock- 
holders may  come  in  and  take  the  benefit 
of  the  proceedings,  but  they  cannot  oppose 
and  nullify  them.  Forbes  v.  Memphis,  E. 
P.  &*  P.  R.  Co.,  2  Woods  {U.  S.)  323. 

Rival  creditors,  by  proceedings  before 
the  master,  may  fix  the  priority  of  their 
respective  liens,  and  creditors  or  stock- 
holders may  contest  the  validity  of  the 
claims  of  other  creditors  and  stockholders, 
but  all  in  subordination  to  the  general  ob- 
ject and  purpose  of  the  suit,  to  obtain  an 
administration  of  the  company's  assets  and 
property.  Forbes  v.  Memphis,  E.  P.  &*  P. 
R.  Co.,  2  Woods  ( U.  S.)  323. 

Persons  will  not  be  allowed  to  intervene 
as  general  defendants  and  contestants,  un- 
less they  show  that  they  have  an  interest  in 
the  results  as  stockholders  or  otherwise, 
and  are  also  able  to  show  fraud  and  col- 
lusion between  the  plaintiffs  in  the  suit  and 
the  officers  of  the  company  having  charge 
of  its  interests.  Forbes  v.  Memphis,  E.  P. 
6*  P.  R.  Co.,  2  Woods  (U.  S.)  323. 

Where  receivers  are  appointed  by  a  fed- 
eral court  in  one  state  fo;  a  .ailroad  that 
extends  to  an  adjoining  state,  and  the  au- 
thority of  the  receivers  is  extended  to  such 
other  state  by  auxiliary  proceedings  had 
therein,  a  person  claiming  to  have  a  prior 
lien  upon  the  roadbed  for  materials  fur- 


INTERVENTION,  3. 


nishefl,  and  praying  that  it  be  paid  out  of 
tiic  income  of  the  road  in  preference  to 
oilier  liens,  must  apply  to  tlic  court  where 
tiie  receivers  were  originally  appointed. 
Clyde  V.  Richmond  6-  D.  R.  Co.,  56  Fed. 
Rt-p.  539.— Following  Central  Trust  Co. 
V.  Kast  Tenn.,  V.  &  G.  R.  Co.,  30  Fed  Rep. 
896. 

Under  a  bill  filed  to  foreclose  several 
mortgages  executed  by  a  railroad  company 
for  the  benefit  of  its  bondholders,  a  decree 
of  sale  having  been  rendered  and  executed, 
but  not  confmned,  unsecured  creditors  of 
til*  company  cannot  intervene  by  petition 
at  tlie  term  to  which  the  sale  is  reported, 
asking  that  the  sale  may  be  set  aside,  and 
that  they  may  be  allowed  to  come  in  as  de- 
feiulunts,  and  file  an  answer  and  crossbill 
in  the  original  cause.  Ex  parte  Branch,  53 
Ala.  140. 

Where  a  creditor  is  seeking  judgment 
against  a  railroad  company  on  certain 
bonds  and  mortgages,  an  intervening  peti- 
tion, filed  by  the  state,  which  alleges  that 
the  bonds  of  mortgages  are  void ;  that  the 
railioad,  by  collusion  and  neglect,  is  about  10 
allow  juugment  to  {jo  against  it  by  default ; 
that  the  railroad,  in  consideration  of  large 
grants  of  land  from  the  state,  has  agreed  to 
maintain  low  rates  of  transportation ;  that 
if  said  bonds  or  mortgages  are  foreclosed 
the  rale  will  of  necessity  be  greatly  in- 
creased and  impose  burdens  on  comniercc, 
does  not  show  such  public  interest  as  would 
entitle  the  slate  to  intervene  and  prevent 
such  judgment,  especially  when  neither  the 
charter  of  the  road  nor  any  subsequent 
law  repeals  any  such  contract  as  that  al- 
leged and  the  charter  expressly  provides 
that  its  rates  of  traffic  shall  be  governed  by 
the  state  regulation.  State  v.  Fanners'  L. 
&-  T.  Co..  50  Ani.  <Sm  Eng.  R.  Las.  683,  81 
Tix.  530,  17  S.  ir.  Rep.  60. 

Where  it  was  alleged  in  behalf  of  the 
state  that  the  bonds  sued  upon  were  not 
issued  by  the  railroad  company,  by  its  di- 
rectors, or  any  person  authorized  to  repre- 
sent the  company,  it  follows  that  the  rail- 
way company  in  this  respect  performs  no 
act  unauthorized  by  law  in  issuance  to  the 
bonds  and  the  execution  of  the  mortgage 
giving  the  state  tlic  cause  of  action.  Slate 
v.  Farmers'  L.  &*  T.  Co.,  50  Am.  <S-  Eng.  R. 
Cas.  683.  81  Tex.  530.  17  S.  IV.  Rep.  60. 

Certain  parties  petitioned  to  be  made 
parties  to  a  proceeding  to  foreclose  a  rail- 
road mortgage,  alleging  that  the  defendant 


corporation  was  but  a  consolidation  of 
three  other  corporations,  and  that  they  had 
never  consented  to  the  consolidation  or 
recognized  its  validity,  and  therefore  were 
not  bound  by  the  defendant  in  creating  the 
mortgage  sought  to  be  foreclosed ;  that  the 
individual  company  of  which  they  were 
members  had  no  officers  who  could  sue, 
and  that  there  was  no  one  else  who  could 
or  would  set  up  the  defense  which  they  de- 
sired to  make.  Held,  that  these  facts 
showed  no  ground  for  a  right  to  intervene, 
in  the  absence  of  any  charge  of  fraud  or 
collusion.  If  the  facts  were  true,  the  rem- 
edy would  seem  to  be  by  an  independent 
suit.  Central  Trust  Co.  v.  Marietta  &*  A\ 
G.  R.  Co.,  48  Fed.  Rep.  14.— Quoiing 
Rronson  v.  La  Crosse  &  M.  R.  Co.,  2  Wall. 
(U.  S.)  283;  Forbes  7/.  Memphis,  L.  P.  &  P. 
R.  Co.,  2  Woods  (U.  S.)  323;  Blackman  v. 
Central  R.  &  B.  Co.,  58  Ga.  189. 

JJ.  Uit;lits  of  iutcrveiiors.— Where  a 
party  comes  in  by  intervention  and  seeks  to 
enforce  a  claim  for  damages  for  personal 
injuries  against  the  receivers,  in  a  chancery 
proceeding  and  issues  are  presented  which 
are  ordinarily  triable  by  a  jury,  the  court 
will  not  set  aside  the  finding  of  the  master 
on  the  issues  of  fact,  unless  the  testimony 
on  which  the  finding  is  based  is  of  such 
character  as  to  produce  a  firm  conviction 
that  the  finding  is  erroneous.  Central 
Trust  Co.  V.  Texas  &•  St.  L.  R.  Co.,  32  Fed. 
Rep.  448. 

VVMiere  property  is  under  the  control  of 
the  court,  in  the  hands  of  a  receiver,  and  a 
creditor  of  the  defendant  intervenes  by  pe- 
tition pro  interesse  suo,  the  petition  is 
amendable  at  any  stage  of  the  proceeding 
so  as  to  develop  all  the  material  facts  out 
of  which  the  substantial  rights  of  the  peti- 
tioner as  a  creditor  arose.  Where  the 
claim  set  forth  originally  was  a  promissory 
note  given  by  an  officer  of  the  corporation 
after  the  receiver  was  appointed,  an  amend- 
ment setting  forth  the  consideration  of  the 
note,  and  the  contract  under  which  that 
consideration  was  realized  by  the  company 
before  the  receiver  was  appointed,  is  allow- 
able. Bright  V.  Centra/  City  SI.  R.  Co..  88 
Ga.  535,  15  5.  E.  Rep.  12.  — Apim.ving  Elli- 
son 7'.  Georgia  R.  Co.,  87  Ga.  691. 

A  party  who  lived  in  a  remote  county  of 
a  state  obtained  a  small  judgment  against  a 
railroad  company  before  it  went  into  the 
hands  of  the  receiver,  and  filed  a  petition 
of  intervention  in  the  suit  appointing  the 


\ 


*»&' 


74 


INTOXICATING   LIQUORS,  !-». 


receivers.  Upon  the  filing  of  the  master's 
report,  which  was  adverse  to  the  claim,  the 
matter  passed  along  (or  nearly  a  year,  when 
new  counsel  filed  an  amended  petition  of 
interveniion,  and  moved  to  set  aside  the 
order  confirming  the  master's  report  and 
refer  the  matter  back  to  him.  Held,  that 
technically  the  party  was  not  entitled  to 
further  hearing;  but,  as.it  was  an  equitable 
proceeding,  under  the  circumstances  of  the 
case,  the  fullest  opportunity  for  a  liPiring 
should  be  granted ;  and  that  the  oidc  r  of 
confirmation  should  be  set  aside  upon  the 
payment  of  costs  of  the  intervention  since 
the  filing  of  the  original  petition.  Central 
Trust  Co.  V.  Wabash,  St.  L.  &•  P.  R.  Co.,  27 
/■'•■il.  I\tp.  175. 

The  president  of  plaintiff,  an  improve- 
ment company,  was  a  stockholder  in  a  rail- 
roiid  company  and  a  large  contractor  for  its 
construction.  Plaintiff,  being  interested  in 
the  construction  of  the  railroad,  furnished 
rolling  stock  therefor,  which  was  marked  in 
the  name  of  the  railroad  company,  the  ob- 
ject being  to  enable  it  to  issue  bonds  and 
secure  them  by  a  mortgage,  which  bonds 
were  placed  largely  through  such  president. 
Held,  that  neither  the  improvement  com- 
pany nor  its  assignee  could  set  up  that  the 
rolling  stock  was  only  loaned,  and  thereby 
deny  title  in  the  railroad  company,  as 
against  the  bondholders  who  were  proceed- 
ing to  foreclose  the  mortgage.  Central 
Trust  Co.  V.  Marietta  <5-  A'.  G.  R.  Co.,  48 
Fed.  Rep.  850.  2  U.  S.  App.  1,1  C.  C.  A. 
1 16;  reversing;  48  Fed.  Rep.  32.— Followed 
IN  Central  Trust  Co.  v.  Marietta  &  N.  G.  R. 
Co.,  48  Fed.  Rep.  864,  2  U.  S.  App.  106,  i  C. 
C.  A.  139;  Central  Trust  Co.  f.  Marietta  & 
N.  G.  R.  Co..  48  Fed.  Rep.  875,  2  U.  S.  App. 
113,  1  C.  C.  A.  140. 


INTOXICATINQ  LiaVORS. 

Seizure  of,  in  the  hands  of  carrier,  see  also 

Carriack  of  Mkrchandise,  209. 
State  regulation  of  carriage  of,  see  Inter- 

STATK  COMMKRCK,  224. 

1.  CoiLstitiitiniiality  of  stiite  stat- 
utes.* —  State  laws  imposing  restrictions 
on  the  sale  of  intoxicating  liquors  do  not 
violate  any  law  of  the  United  States.     Li- 


Importations  of   intoxicatinR  liquors  under 
Interstate  Commsrce  Law.   '  OriRinal  package  " 
State  prohibitory  laws,  see  note,  lo  L.   R    A 
616. 


cense  Cases,  5  Hon'.  {U.  S.)  304. — Rf.vif.wf.d 
IN  Minneapolis,  St.  P.  &  S.  Stc.  M.  R.  Co.  7/. 
Milner,  57  Fed.  Rep.  276. 

2.  Maiidaniiis  to  coiiiim'I  coiiipuiiy 
to  transport  liquor.  —  Inasmuch  as 
"beer  "is  included  in  the  term  "  intoxicat- 
ing liquors,"  as  defined  by  chapter  8,  Laws 
of  1884,  and  the  transportation  by  common 
carriers  of  into.\icating  liquors  into  Iowa, 
except  under  certan  conditions,  is  prohib- 
ited by  statute— //<■/(/,  that  the  defendant 
could  not  be  compelled  by  mandamus  to 
transport  for  the  plaintiff  into  Iowa  "  New 
Era  Beer,"  there  being  nothing  in  »lic 
words  "  New  Era  "  to  indicate  that  the  beer 
in  question  is  not  intoxicating;  and  that 
the  case  would  not  be  different  if  the  plain- 
tiff alleged  the  beer  in  question  to  be  non- 
intoxicating;  for  then  the  discretion  of  the 
defendant  would  be  called  in  question  in 
determining  the  truth  of  tl  at  allegation ; 
and  mandamus  will  not  lie  to  compel  the 
performance  of  an  act  involving  the  exer- 
cise of  d  iscretion .  Milwaukee  Malt  Ex  tract 
Co.  V.  Chicago,  R.  I.  <&<•  /'.  K.  Co.,  73  Jouui 
98,  34  A'.  W.  Rep.  761. 

;i.  8out\  Carolina  dispensary  aet. 
— South  Carolina  Act  of  December  24,  1892, 
usually  known  as  the  "  Dispensary  Act," 
section  25.  providing  that  "  liquor  intended 
for  an  unlawful  sale  in  this  state  may  be 
seized  in  transit  and  proceeded  against  as  if 
it  were  unlawfully  kept  and  deposited  in 
any  place,"  does  not  authorize  a  seizure 
without  warrant.  Hound  \.  South  Laroliiia 
R.  Co.,  57  Fed.  Rep.  485. 

Before  liquors  can  be  seized  under  the 
above  section  it  must  appear  that  they  were 
in  transit,  and  that  they  were  intended  for 
unlawful  sale  in  the  state— two  facts  which 
are  not  determinable  by  a  constable  in  his 
own  mind  upon  his  own  suspicion.  Bound 
v.  South  Carolina  R.  Co.,  57  Fed.  Rep.  485. 
The  provision  of  section  2  that  "  any 
package  containing  intoxicating  liquors, 
without  the  certificate  [of  a  county  (iis- 
penser],  which  shall  be  brought  into  tins 
state  or  shipped  out  of  the  state,  or  shipped 
from  place  to  place  within  the  state,  by  any 
railroad,  express  company,  or  other  common 
carrier,  shall  be  regarded  as  intended  for 
unlawful  sale,"  applies  only  to  liquors  which 
shall  be  brought  into  the  state  after  the  act 
went  into  operation,  and  has  no  application 
to  liquors  which  were  brought  in  before 
that  time,  and  kept  in  a  warehouse  of  tiie 
carrier  awaiting  delivery  to  the  proper  con- 


INTOXICATING    LIQUORS,  4. 


78 


sii;nce.    Hound  v.  South  Carolina  K.  Co.,  57 
/,-,/.  K,p.  485. 

Even  if  the  statute  gave  express  permis- 
sioii  to  search  for  and  seize  intoxicating 
]i(|U()rs  without  a  warrant,  it  would  be  in 
violation  of  So.  Car.  Const,  art.  i,  §  22,  se- 
curing the  people  against  unreasonable 
searches  or  seizures  of  their  "  persons, 
houses,  papers,  or  possessions,"  and  pre- 
scril)ing  that  warrants  shall  only  issue  upon 
oath  or  affirmation,  and  further  providing 
tile  formalities  generally  which  siiall  attend 
liuir  issuing  and  execution.  Hound  v.  South 
Carolina  R.  Co.,  57  Fed.  Kep.  485. 

The  Act  of  Congress  of  August  8,  1890, 
coMimonly  known  as  the  "  Wilson  Act,"  en- 
acted for  the  purpose  of  removing  the  effect 
of  certain  decisions  of  the  federal  courts, 
known  as  the  "  original  package  "  decisions, 
only  puts  an  imported  package  of  liquors, 
whether  in  its  original  shape  or  otherwise, 
under  the  police  pf)wer  of  the  state  upon 
its  arrival  in  such  state,  precisely  as  other 
intoxicating  liquor  in  the  state  is  subject  to 
sucli  police  power.  In  re  Langford,  57 
Fed.  Kep.  570. 

The  term  "  upon  arrival,"  as  used  in  the 
above  act,  where  it  provides  that  liquors 
transported  into  any  state  or  territory,  upon 
arrival  therein,  shall  be  subject  to  the  laws 
of  such  state  or  territory,  does  not  mean  at 
the  border  of  the  state,  but  when  they  have 
reached  their  destination.  In  re  Langford, 
57  Fed.  />'<■/.  570. 

And  liquors  so  shipped  are  subject  to  the 
pf)lice  power  of  the  state  from  the  time  they 
arrive  at  their  place  of  destination,  and  not 
from  the  time  they  are  actually  delivered  to 
tlio  consignee  or  owner.  And  it  is  not  nec- 
essary that  the  whole  duty  of  the  carrier 
with  reference  thereto  shall  have  been  per- 
formed, such  as  an  actual  delivery,  collect- 
ing the  freight  charges,  etc.  In  re  Lang- 
J'ord.  57  Fed.  Rep.  570. 

So.  Car.  Dispensary  Act,  §  25,  in  one 
inovision,  makes  it  a  criminal  offense  "  for 
any  servant,  agent,  or  employe  "  of  a  carrier 
to  remove  froni  any  car,  etc.,  any  intoxicat- 
iiiii  liquor,  without  any  sort  of  qualification  ; 
but  in  the  other  provisions  of  the  section, 
relating  to  other  classes  of  persons,  knowl- 
e(li;e  on  their  part  that  liquors  are  intended 
for  sale  is  necessary  to  nfakc  the  act  crimtrnl. 
ILld.  that  the  provision  singling  out  scrvan  1  s, 
agents,  and  employes,  and  making  them  ab- 
.solutely  liable,  is  a  violation  of  So.  Car. 
Const,  art.  i,  §  12,  providing  that  "  no  per- 


son shall  *  ♦  ♦  be  liable  to  any  other  punish- 
ment for  any  offense,  or  be  subjected  in  law 
to  any  other  restraint  or  disqualifications  in 
regard  to  any  personal  rights,  than  such  as 
are  laid  upon  others  under  like  circum- 
stances." In  re  Langford,  57  Fed.  Rep. 
570. 

The  Wilson  Act  created  no  new  power  in 
the  stales.  It  only  limited  the  regulation 
of  interstate  commerce  ;  but  the  most  broad 
and  liberal  construction  of  the  above  pro- 
vision of  section  25  of  the  South  Carolina 
statute  would  not  permit  a  state  in  the 
guise  of  a  police  power  to  thus  single  out 
and  punish  the  agents  of  interstate  com- 
merce for  a  crime  specially  created  for 
them,  especially  in  face  of  the  fourteenth 
amendment  to  the  constitution  of  the 
United  States.  In  re  Langford,  57  Fed. 
Rep.  570. 

A  person  acting  as  constable  in  South 
Carolina,  and  claiming  to  act  under  the 
"  Dispensary  Act,"  seized  a  cask  of  whiskey 
while  in  the  hands  of  a  receiver  who  was 
operating  a  railroad  under  appointment 
by  a  federal  court ;  whereupon  the  re- 
ceiver had  the  constable  attached  for  con- 
tempt and  obtained  an  order  requiring  him 
to  restore  the  property.  Held,  (i)  that  a 
U.  S.  circuit  court  had  jurisdiction  of  the 
matter ;  (2)  that  the  judgment  of  the  circuit 
court  holding  the  act  of  the  constable  ille- 
gal, and  adjudging  him  guilty  of  contempt, 
was  not  reviewable  on  original  petition  f»r 
a  writ  of  habeas  corpus.  In  re  Sii>an,  1 50  U, 
S.  637.  14  Sup.  Ct.  Rep.  225. 

4.  Seizure  of  liquor  in  possession 
of  oarrior. — Where  a  railroad  company 
combines  with  an  individual  to  aid  him  in 
violating  the  law  by  carrying  intoxicating 
liquors,  several  packages  at  a  time,  and  stor- 
ing them  in  its  depot,  so  as  to  allow  him  to 
take  them  away  one  at  a  time,  for  the  pur- 
pose of  unlawful  sale,  it  ceases  to  be  a  car- 
rier, and  becomes  a  mere  warehouseman  as 
to  such  liquors,  and  cannot  claim  protection 
under  the  Interstate  Commerce  Law,  where 
they  are  seized  under  a  search  warrant  while 
in  the  warehouse.  State  v.  Creeden.^oAm. 
&>  Fng.  R.  Cas.  31,  78  Iffim  556,  7  L.  R.  A. 
295,  43  A'.  W.  Rep.  673.— Following  Bow- 
man V.  Chicago  &  N.  W.  R.  Co.,  125  U.  S. 
465,  8  Sup.  Ct.  Rep.  689,  1062. 

Neither  could  the  company  in  such  case 
make  a  claim  to  the  liquors  on  the  ground 
that  it  had  a  lien  thereon  for  unpaid  freight 
charges.     State  v.  Creeden,  40  Am.  &»  Eng. 


\^ 


^ 


f 


X 


76 


INTOXICATING  LigUOKS,  5,  «.~INTOXICATION. 


A'.  Ctts.  31.  78  /owa  556,  7  L.  A'.  A.  295.  43 
A',  ly.  Hep.  673. 

Where  an  officer  who  has  a  warrant  for 
the  search  of  intoxicating;  liquors  goes  to  a 
railf'  ifl  depot  where  they  arc  unlawfully 
stored,  after  the  usual  time  for  closing  it, 
he  is  justified  in  forcibly  breaking  and  o|)en- 
ing  it,  if  it  be  necessary  to  execute  his  war- 
rant, where  there  is  n(j  one  present  from 
whom  he  can  demand  admission.  It  is  not 
necessary  first  to  ask  permission  to  enter. 
Androscoggin  R.  Co.  v.   Richards,  41    Me. 

233- 

Under  the  Maine  Act  of  March  31,  1853, 
intoxicating  liquors  belonging  to  a  town 
are  not  protected  from  seizure  and  for- 
feiture unless  the  casks  or  vessels  holding 
tliiin  arc  plainly  and  conspicuously  marked 
with  iIh*  name  of  the  town  and  its  agent. 
Androsniggin   R.  Co.  v.    Richards,  41   Me. 

233. 

A  dealer  in  New  York  shipped  intoxicat- 
ing liquors  to  parties  in  Vermont,  by  ex- 
press, C.  O.  D.  The  liquors,  intended  for 
an  unlawful  use,  were  seized,  without  war- 
rant, while  in  the  possession  of  the  express 
company,  and  confiscated,  before  delivery 
and  payment.  Held,  that  the  seizure  was 
lawful.  State  v.  O'Neil,  58  Vt.  140.  2  Atl. 
Ref>.  586. 

A  statute  which  authorizes  the  seizure  of 
int(jxicating  liquor,  intended  for  unlawful 
use,  in  the  possession  of  an  express  com- 
pany, does  not  interfere  with  interstate 
commerce,  and  is  not  in  conflict  with  sec- 
tion 8  of  the  federal  constitution.  State  v. 
O'W-il,  58  Vt.  140,  2  Atl.  Rep.  586. 

5.  Conviction  of  ngciit  of  express 
coiiiiHiiiy  for  illcRnl  traiiMportatioii. 
—  .Anemploye  of  an  express  company,  which 
is  engaged  in  the  illegal  transportation  of 
intoxicating  liquors  to  a  no-license  city, 
may  himself  be  convicted  of  that  ofTense,  if 
after  their  arrival  in  the  city  he  aids  in  for- 
warding them  to  their  destination  therein, 
having  reasonable  cause  to  believe  that  the 
same  were  intended  to  be  sold  there  in  vio- 
lation of  law,  although  he  had  no  personal 
knowledge  that  the  particular  liquors  had 
been  ordered,  or  were  coming,  until  they 
reached  the  company's  city  office,  and  did 
not  himself  bring,  or  manually  aid  in  bring- 
ing, them  into  the  city,  and  could  not  have 
prevented  their  transportation  there.  Com. 
v.  lUmvn,  154  Mass.  55,  27  A'.  E.  Rep.  776. 

But  in  order  that  such  liability  be  im- 
posed it  is  essential  th.it  knowledge  on  the 


part  of  the  agent,  or  at  least  a  reasonable 
suspicion,  of  the  contents  of  the  package 
should  exist,  The  rule  is  the  same  where 
the  agent  delivered  the  liquor  to  a  stage- 
driver,  who  paid  for  it  with  money  fur- 
nished by  the  consignee,  where  it  did  not 
appear  that  the  express  company  had  under- 
taken to  deliver  it  beyond  the  terminus  of 
its  own  transit,  or  that  the  stage-driver  was 
an  express  carrier;  for  a  delivery  t<»  the 
stage-driver  was  a  delivery  to  the  consignee. 
State  V.  Goss,  30  Am.  &*  Eng.  R.  Cas.  1 18,  59 
Vt.  266,  9  Atl.  Rep.  829. 

O.  Sal«N  of  liquor  to  "truveierx" 
iiiMler  the  Kiiglinli  net. -One  wlio  has 
purchased  a  ticket  at  the  usual  time  before 
the  starting  of  the  train  is  a  traveler  within 
the  meaning  of  2  and  3  Vict.  c.  47,  s.  42,  and 
no  penalty  is  incurred  for  selling  him  liquor 
on  Sunday,  fisher  v.  Ihrward,  34  L.J.  M. 
C.  42,  1 1  Jur,  N.  S.  305,  13  W.  R,  145,  1 1  L. 

T.  373. 

Persons  arriving  by  train  at  a  station  dis- 
tant a  mile  from  the  town  in  which  they  re- 
side, and  persons  residing  in  the  town  who 
go  to  the  station  for  the  purpose  of  meeting 
a  train,  are  travelers  within  11  &  12  Vict.  c. 
49,  s.  I ,  relating  to  the  sale  of  liquor  on  Sun- 
day. Peache  v.  Colman,  1  H.  6-  A'.  393,  L. 
R.  I  C.  P.  324,  12  Jur.  N.  S.  273.  35  ^J- 
M.  C.  118,  14  W.  A'.  439. 

A  conviction  of  a  person  charged  with 
having  opened  his  house  for  the  sale  of 
wine  and  beer  on  Sunday  to  persons  not 
travelers  is  wrong,  where  it  appears  that  all 
of  the  persons  in  his  house  except  one  took 
tickets  and  went  away  by  train,  and  that 
one  accompanied  his  son,  who  went  by 
train.  Copley  v.  Burton, y)  L.J.  M.  C.  141, 
L.  R.  5  C.  P.  489,  22  L.  T.  888, 


INTOXICATION. 

Care  required  from  carrier  towards  intoxi- 
cated passengers,  see  Carriaue  of  Pas- 

SKNCF.RS,    147«  :{12. 

—  demanded  from  intoxicated  persons,  see 

CoNTKntuioRv  Nec.i.igknck,  27. 
Duty  of  company  towards  intoxicated  tres- 
passer,   see    Tkesi'assf.rs,    Injuriks    to, 
73. 

—  to  restrain  wrongful  acts  of  intoxicated 

passenger,  see  (^arkiage  of  Passkngers, 

:tiK. 

Expulsion  of  passenger  for,  see  Ejection  of 
r'AssKNr.ERs,4;j;  Street  Railways, 521. 

Injury  aggravated  by,  as  a  defense,  see  Em- 
pi  ovFs,  Injuries  to,  555. 


INVENTIONS-IRREGULARITIES. 


rt 


Killing  intoxicated  perioni,  nee  Dkath  hv 

U'KD.Ndiri.  Aci,  77. 
Of  employe,  admissibility  of  evidence  of,  seu 

KVIIIKNCK,  40. 

—  insured  person,  as  a  defense,  see  Acciukn  r 

Insi'kanck,  lU. 

—  one  injured  at  station,  when  contributory 

negligence,  see    Staiions  and   Ukiuis, 
127. 

—  passenger,  sec  Cakriaoe  of  Passknokks, 

;»7. 

as  contributory  negligence,  sue  Car- 

KiA(iK  (IK  PAssENCiKKs,  iintif  400,  4214  ; 

1)1  All!  iiv  Wko.mukul  Act,  lOI,  20M. 
when  releases  carrier  from  obligation 

to  carry,  see  Cakkiauk  ok   I'AssKNiiK.Ks, 

115. 

—  person  in  charge  of  cattle,  effect  of,  see 

Animals,  Injckiks  io,  215. 
injured,  admissibility  of  evidence  of,  see 

EVII>KNCK,  58. 

when   contributory  negligence,  see 

CK()SSIN(;S,  InJUKIKS,  KTC,,AT,;^17;STKEE■r 
KAIt.\VAVS,  510,  51 1. 

on  track,  contributory  negligence,  see 

Crossings,  Injuriks,  etc.,  at,  212. 

—  servant,  notice  to  company  of,  see  Fellow- 

servants,  150. 

—  street-car  driver,  liability  for,  see  Street 

Railways,  472. 


INVENTIONS. 

Duty  of  company  to  adopt  new,  see  Em- 

i-Lov&s,  Injuries  to,  08  ;  Fires,  37. 
Patents  for,  see  Patents  for  Inventions. 


INVIOLABILITT. 
Of  corporate  charters,   see  Charters,  17- 
50;  Francmisks,  !{;  Taxation,  140. 

INVOLUNTARY  PAYMENTS. 

Of  overcharges,  see  Ciiarces.  40,  41. 
See  also  Payment,  5,  O. 


IOWA. 


Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion. 251>. 

Conditions  exempting  carrier  from  liability 
to  person  riding  on  free  pass  in,  see 
Passes,  20. 

Constitutionality  of  statutes  of.  as  to  mu- 
nicipal aid  for  railways,  see  Municipal 
AN!)  Local  Aid,  31. 

tax  laws  of,  see  Taxation,  26. 

Deductions  for  benefits  under  condemnation 
laws  of,  see  Eminent  Domain,  734. 

Doctrine  of  comparative  negligence  denied 
in,  see  Comparativk  Neoligrncr,  27. 


Double   damages    for  killing  stock  in,  see 

Animals,  Injitriks  to.  liWi. 
Federal  grants  to.  see  LandCikants,  22-20. 
Grade  crossings  under  statutes  of,  see  Ckhs!,- 

INO  i>K  Kaii.koaiis,  OO,  N7. 
Grants  by,  to  railroads,  see  Land  Grants, 

llO. 

—  of  swamp  lands  in,  see  Land  Grants,  13 1 . 
Homesteads  in  public  lands  in,  see  Puhlic 

Lands,  5. 

Injuries  to  animals  running  at  large  in,  sec 
Animals,  I.njuriehto,  24N,  207. 

Local  assessment  upon  steam  railways  in, 
for  repairs,  paving,  etc.,  see  Streets  and 
lliciiwAVs,  345. 

Occupation  of  streets  by  steam  roads  under 
legislative  grants  of,  see  Strkeis  an3 
Hkwiwavs,  44. 

Operation  of  statute  of,  giving  right  of  ac- 
tion for  causintr  death,  see  Death  iiv 
VVronckui.  .Act.  lO. 

Review  of  town  bonding  proceedings  by 
mandamus  in,  see  Municii'al  and  Local 
Aid,  445. 

Rule  as  to  imputed  negligence  in,  see  Im- 
puted Neclic.knce,  7. 

Statutes  of.  regulating  liability  for  injuries 
caused  by  fire,  see  Fikes,  4. 

to  servant  for  injuries  caused  by 

negligence  of  fellow-servants,  see  Fel- 
low-servants, 172-177. 

relative  to  connecting  lines,  see  Con- 
necting Links,  2. 

defective  crossings,  see  Crossinos, 

Injuries,  etc..  at,  30. 

distribution  of  damages  for  caus- 
ing death,  see  Death  by  Wrongful  Act, 
50. 

Statutory  duty  to  fence  in,  see  Fences,  23. 

—  penalties  for  overcharges  in,  see  Ciiakges, 

53. 
Taking  land  for  streets  and  laying  out  roads 

in,  see  Streets  and  Hic.hwavs,  20. 
Taxation  in  aid  of  railways  in,  see  Municipai 

AND  Local  Aid,  412. 

—  of  land  grants  in.  see  Taxation.  117. 
Transportation  of  diseased  cattle  in,  see  Car- 

riage  ok  Live  Stock.  111. 


IRREGULARITIES. 

Connected  with  view  of  premises,  as  ground 
for  setting  aside  verdict,  see  Eminent 
Domain.  571,8.33. 

Effect  of  appearance  as  a  waiver  of,  see  Emi- 
nent Domain,  050. 

In  condemnation  proceedings,  as  grou:ia  for 
injunction,  see  Eminent  Domain.  1 O30. 

—  issue  of  bonds,  ratification  of,  see  Bonds, 
lO. 


ml 


■1 


•)itj 

..  .        .n 


78 


IRRIGATION-  JOINDER. 


i 


In  mode  of  arrival  at  verdict,  remedy  for,  see 
Eminent  Domain,  H!(4. 

—  railway  aid  proceedings,  when  not  fatal. 

see    Mi'McirAL    and   Local   Aid,    I08, 

—  aervics   of  process,    relief   against,    sec 

pRncKSs.  47- 

—  subscriptions,  as  a  defense  to  action  for 

calls,  sec  SlTBSCK'.l'TIONS  TO  SloCK,   171. 

—  taxation,   rijunction   for,  sec   Taxation, 

ana. 

On  pare  of  conMiissioners  in  condemnation 
proceedings,  remedy  for,  sec  Eminkni 
Domain,  HO'2. 

What  may  be  disregarded  on  appeal,  see 
Ai'i-KAi.  AM)  Ekkok,  57-8J);  Eminknt 
Domai.n,  1M)1-«I«;  Justice  of  thk 
Peace,  Hi. 

ISRIOATION. 

Increased  cost  of,  as  an  element  of  land 
damages,  ice  Eminkm  Domain,  700. 


lE&ELEVANCT. 

Of  evidence,  see  EviDKNCE.  15. 
Striking  out  allegations  for,  see  Pleading. 
170. 


ISSUES. 

As  to  past  damages,  trial  of,  by  jury,  see 

Elevated  Rah  ways,  171. 
Evidence  not  responsive  to,  see  Carriagk  of 

Mkkciiandise,  744  ;   Evide.'Ice,  13. 
In  condemnation  proceedings,  ttial  of,  see 

Eminent  Domain,  itOO. 
Instructions  ignoring  material,  see  Carriage 

or  Passengers. U04;  Emflovks,  Injuries 


to,  044;  Fki.i.ow  SERVANTS. 501,502  K 
FiKKs,  :{00. 

Instructions  outside  of,  or  broader  than,  see 
Ammai  s,  Injiriks  rr),  572  ;  Aitem.  and 
Error,  41;  Carriage  of  Mkrciiandisk 
7JIM;  Chii.dken,  I.nji  riks  io,  177; 
Death  hv  Wrongful  Act.  :{32;  Trial, 
litH. 

Joinder,  scope  and  effect  of,  generally,  see 
Plkading,  8U-02. 

Prayer  for  instructions  not  within,  or  limit- 
ing, see  Tkiai.,  104,  105. 

Re-examination  on  matters  not  pertinent  to, 
see  WiiNKSsES,  7f>. 

Submission  of.  to  jury  on  assessment  of  land 
damages,  see  Emineni'  Domain,  5U3. 


ISSUING. 
Of  bonds,  see  Konds,  1-15. 

in  aid  of  railroads,  see  Municipal  and 

Local  Aid,  2<m-:U>4. 

—  certificates  of  indebtedness,  see  Certiki- 

caies  of  Indkhiednkss,  1. 

—  debentures,  see  Dkhentires,  4. 

—  free  passes,  see  Passes,  5-8. 

—  new  stock,    suit  to  compel,  see    Stock- 

holders, 105. 

—  patents,  see  Patents  for  Inveni ions,  7- 

lO. 

—  process,  see  Process,  4-12. 

—  receivers'  certificates,  see  Receivers,  04- 

lOO. 

—  shares,   payment  of  subscription  a  pre- 

requisite to,  see  Suuscriftion's  to  Stock, 
41. 

—  stock,  see  Stock,  0-21. 

—  writ  of  attachment,  see  Attachment,  etc., 

40-42. 


RAIIONS, 


J 


JEWELRY. 

When  may  be  carried  as  baggage,  see  Dag- 
gage,  30. 


JOINDER. 

Ot  bondhuiders,  as  plaintiffs  in  foreclosure, 
see  Mortgages.  180. 

—  causes  of  action,  see  Actions,  11;  Ani- 

mals. 1^IJURIES  TO.  335  ;  Pleading.  31- 
35. 

—  claims  for  stock  killed,  see  Animals,  In- 

juries TO,  028. 

—  counts,  in  action  for  causing  death    see 

Death  bv  Wrongful  Act,  140. 

—  defendants,  see  Negligence,  83 ;  Parties 

TO  Actions,  8. 


Of  defenses,  sec  Pleading,  58,  50. 

—  husband  and  wife,  in  actions  for  injuries 

to  wife  or  her  property,  see  HusBArM)  and 
Wife,  31-41. 

—  issue,    necessity   and    sufficiency  of.   ^('e 

Pi.eadin.;,  80,  OO. 

—  parties  in  condemnation  proceedings,  sic 

Eminent  Domain,  255-201. 
equity,  see  Parties  to  Actions,  18- 

25. 
on  appeal,  sec  Eminen  r  Domain,  032. 

—  plaintiffs,  see  Contracts,  Ol;  Dfaiii  hy 

Wrongful    Ac  ,    04;    Palties   to  Ac- 
tions, O. 

—  receiver,  with  corporation,  as  defendants, 

see  Receivers,  135. 
See  also  Misjoinder;  Nonjoinder. 


JOINT— JUDGMENT;   DECREE. 


79 


JOINT. 

Actioas,  by  husband  and  wife,  see  Husband 

anpWikk,  :{I-*1. 
And  several  liability,  of  connecting  carriers, 

see  Cakkiack  ok  I*asseni:eks,  500. 
Liability    for    negligence,   see    Neuliuknce, 

8'J. 
—  of  both  companies  in  collision  cases,  see 

coi.i.isioNs,  ^^. 

connecting  carriers,   see  Carriage  of 

Mkkciiandisk,  n44. 
lessor  and  lessee,  see  Leases,  etc.  00- 

02,  115. 
steam   and  street-car  companies,  see 

dn.i.isioNs,  til. 
Owners,  of  goods,  when  may  sue  carrier,  see 

Cakria(;koi.-  Mkr(.ii\ni)ise,  717. 
-•  right  of,  to  sue  for  loss  by  fire,  see  Fires, 

144. 
Use.  of  depot,  contract  for,  see  Union  Depot 

Com  PA  NIKS,  *». 

right  of  way,  see  Specific  Performance, 

14. 

road,  see  Ultra  Vires,  lO. 

station,  see  Stations  and  Depots,  140- 

140. 

tracks,  see  Kai.timore  &  Ohio  R.  Co., 

0,7;  Contracts,  lOrt;  Employes,  In- 
JURIES  to,  400  ;  Statutes,  54 1  Street 
Railways,  07,  230-254;  Tramways, 
4. 


JOINT  STOCK  COMPANIES. 

Distinguished  from  corporations,  see  Corpo- 
raiions,  si. 


JOLTS  AND  JARS. 

Liability  for  injuries  caused  by,  see  Carriage 
UK  PASbENbERs,  205,  248,  203. 


JUBOE. 

Change  of  venue  for  disqualification  of,  see 
Trial,  14. 

Effect  of  approval  by,  of  verdict,  on  motion 
to  set  aside,  see  New  Trial,  31. 

Improper  remarks  of,  as  to  contributory  neg- 
ligence, see  CoNTRiuuroRY  Negligence, 
125. 


JUDGMENT;  DECBEE. 

Against  corporation,  conclusiveness  of.  in 
suit  by  creditor  against  stockholders, 
see  SrotKiioi.DKRs,  35,  K2. 

—  owner  of  land  condemned,  enforcement  of, 

see  Rminknt  Domain,  151. 

—  party  who  committed  first  fault  in  plead- 

ing, see  Plraoing,  71. 


Against  receivers,  review  of,  see  Receivers, 
144. 

Assignability  of,  see  Assignment,  O. 

Cancellation  of  satisfaction  of,  see  Equity, 
15. 

Condemning  abutting  easements  after,  see 
Elevatki)  Railways,  30. 

Enforcement  of,  in  condemnation  proceed- 
ings, see  Eminent  Domain,  851-803. 

Enjoining  enforcement  of,  see  Injunction, 
41,42. 

Entry  of,  on  garnishee's  answer,  see  At- 
tachment, etc.,  50. 

Entry  of,  on  report  of  referee,  see  Rkferenlk, 
U. 

Error  of,  on  part  of  agent,  liability  of  prin- 
cipal for,  sec  Agency,  88. 

In  actions  by  husband  and  wife,  see  Hushanu 

AM.  vviFK,  38,  ;jo. 

for  damages  for  maintaining  a  nuisance, 

see  Nuisance.  41. 
damages  for  wrongful   interference 

with    property,    sec    Eminent    Domain, 

1000. 
injuries  caused  by  fires,  see  Fires, 

305-307. 
to  children,  see  Children,  Injuries 

TO.  104. 

taxes,  see  Taxation,  321. 

on    construction    contracts,    see    CoN' 

STRUCTION   OF    RAILWAYS,    121. 

subscriptions  to  stock,  see  Subscrip 

TIONS  TO  Si'CK.    170. 

to  enfort?  '3." way  aid  bonds,  see  Mu- 
nicipal AND  ].ucAL  Aid,  300. 

—  attachment  suits,  see  Attachment,  etc., 

07,  08. 

—  condemnation  proceedings,   see   E.minent 

Domain,  842-850,  8»7. 

—  favor  of  initial  carrier  against  succeeding 

carrier,  see  Express  Companies,  78. 

—  foreclosure,  see  Mortgagfs,   200-214, 

203. 

—  proceedings  to  enforce  laborer's  lien,  see 

LiKNS,  Ol. 

—  quo  warranto,  see  Quo  VVarranio,  12. 

—  suits  against  elevated  railway  company, 

see  Elevated  Railways,  181-185. 

receivers,  see  Reckivkrs,  141. 

to  foreclose  deeds  of  trust,  see  Deeds  ok 

Trust,  10. 

—  trespass  by  landowner  for  wrongful  inter- 

ference with  property,  see  Eminent  Do- 
main, 1085. 

—  trover,  effect  of.  to  pass  title  to  defendant. 

see  Trover,  20. 

Liability  of  receiver  on,  when  obtained  be- 
fore his  appointment,  see  Receivers,  03. 

Merger  of  cause  of  action  in,  see  Animals, 
Injuries  to,  304. 


^      1 

y 


if 


A. 


^I'i 


iKy 


t  n 


\    I 


% 


ij. 


JUDGMENT;   UECRliii,   l.ii. 


Necessity  of,  before  enforcement  of  ^tatuiory 
liajiiity  of  scotkuolders  to  creditors,  see 

Sliil  KIII)I.11KK>,   40. 

Non  obstante  veredicto,  six-  Animals,  In- 
jlKiKs  Id,  ."i."*!! ;   Tikis.  ;Ut7. 

Objections  to,  how  to  be  taken,  see  Aiieal 
ANU  Kkroi;,  lOJJ. 

Of  nonsuit,  review  of.  see  Tkiai.,  M3. 

—  witness,    testing   accuracy  of,  see   VVir- 

NKSSKS,    I  OH. 

Offer  to  allow,  effect  of.  on  right  to  costs, 
see  Cosrs,  ti  ;  li.Mi.sKM'  Domain,  771. 

On  appeal  from  justice  of  the  peace,  enforce- 
ment of,  see  .A.MMAI.S,  I.njukiks   to,  <J41. 

—  foreclosure  of  mechanic's  lien,  see  Lii  .\s, 

Payment  of,  by  receiver,  see  Rkckivirs,  87. 
Priority  of  mortgage  over  lien  of,  see  Mor  r- 

GAdKS,    124. 

Record  of,  as  evidence,  see  Ani.mai.s,  In- 
juries lo,  4ilH. 

Review  of,  in  elevated  railway  cases,  see 
Ei.EVATKi)  Raiiavavs,  1  80- I U5. 

Right  to  interest  on,  see  Intkrest,  4,  S. 

What  final  and  appealable,  see  Appeal  and 
Error,  7,  8 ;  Eminent  Domain,  882. 

When  create  estoppel,  see  Estoppel,  O. 

When  may  be  reached  in  attachment,  see 
Attachment,  etc.,  iitt. 

I.  BENDITION  AND  ENTKY  OF  JUDO- 

MENTS 8o 

II.  INTEBPBETATION     ARD    EFFECT. 

CONCLUSIVENESS 82 

1 .  /«  Gineral, 83 

2.  Ho7i>  fur    Conclusive.      AVs 

Judkata 84 

3.  Colliitfral  Impeachment 99 

ni.  LIEN ;  PBIOBITT 100 

IV.  SATISFACTION  AND  DISCHARGE.  ..    101 
V.  ARBESTINO  ;  AMENDING ;  OPENING 

AND  VACATING io2 

VI.  ENFORCEMENT  ;  ACTIONS  ON  JUDG- 
MENTS       ,05 

I.  BENDITION  AND  ENTBT  0)?  JUDGMENTS. 

1.  Formal  r<>quisitc.s,  ui'iiorally.— 

Jurisdiction  to  render  a  juri.jment  can  be 
acquired  only  by  compliance  \\itii  what  the 
law  prescribes  shall  be  done  to  confer  it, 
and  without  a  substantial  compliance  with 
this,  power  to  render  a  judgment  docs  not 
e.\ist.  Gulf,  C.  &^  S.  F.  R,  Co.  v.  A'awlins, 
So  7V.r.  579   16  V.  IV.  AV/.  430. 

Where  a  minor  sues  for  damaj^es  by  her 
next  friend,  the  proper  form  of  jiidKmciit 
is  to  recite  that  the  plaintill.  by  her  next 
friend,  naming  them,  do  have  and  recover 
the  amount  of  the  judgment  for  tiie  sole 
iisf  Ml  the  minor;  and  the  judgment  should 


al.so  recite  that  the  money,  when  collected, 
is  to  remain  in  court  until  the  qualitication 
of  a  regular  guardian,  or  the  minor  reaches 
her  majority.  J'l.vits  C.  A'.  Co.  v.  .'<tutirt,  : 
Tex.  Civ.  App.  642.  20  .V.   \V.  Ktp.  962. 

2.  ICiiIvs  rt'lut'vfto  imrtlfs.— Where 
a  railroad  is  mortgaged  to  si-curc  its  bonds 
and  the  mortgage  trustee  brings  a  suit  to 
foreclose,  he  does  not  so  far  represent  bond- 
holders who  do  n6t  join  in  the  suit  as  to 
bind  them  by  any  decree  which  may  be  en- 
tered in  the  proceeding.  Mercantile  Trust 
Co.  V.  Lamoille  Valley  A'.  Co.,  16  lilatclif. 
(U.  S.)  324.— ExiM.AiNKl)  IN  Mercantile 
Trust  Co.  V.  Portland  it  O.  K.  Co.,  10  Fed. 
Rep.  604. 

A  decree  that  a  certain  branch  of  a  rail- 
road is  not  subject  to  the  lien  of  a  nu)rt- 
gage  to  secure  bonds  which  have  been 
guaranteed  by  the  state  is  of  no  validity, 
where  it  is  shown  that  such  decree  was 
made  in  a  suit  in  which  the  bondholders 
were  not  represented,  of  which  the  stale 
has  not  been  notified,  and  which  was  brought 
in  a  county  in  which  no  part  of  the  branch 
was  situated.  Central  Trust  Co.  v.  Florida 
li.  &*  W  O.,  46  Am.  &*  Eng.  R.  Cas.  370,  43 
Fed.  Rep.  751. 

Where  a  judgment  of  a  justice's  court  is 
against  the  "  Florida  Central  Kailroad,"  and 
real  estate  belonging  to  the  "  Florida  Cen- 
tral Railroad  Company"  is  sold  under  an 
execution  issued  <>n  said  judgmer.i,  such 
sale  is  invalid  to  divest  title  of  the  "  I-lorida 
Central  f<ailr(Kid  Company,"  in  the  absence 
of  proof  showing  that  the  last-named  com- 
pany was  the  real  defendant  meant  in  said 
judgment.  L'Engle  \.  Florida  C.  &*  IV.  R. 
Co..  21  Fla.  353. 

Where  the  owner  of  abutting  mortgaged 
property  brings  an  action  against  an  vU  ■ 
vatrd  railway  in  the  street,  it  is  not  neces- 
sary to  make  tlie  mortgagees  parties,  where 
the  decree  granting  the  injunction  provides 
that  on  payment  of  the  d, images  asscsseii 
plaintiff  shall  execute  releases  for  himself 
and  the  mortgagees.  iHonlnito  v.  .Manhattan 
R.  t('..3i  A'.  1'.  S.  R.  134.  9  .V.  r.  .Supp.  25.S, 
56  //«;/  642. 

A  judgment  founded  upon  service  of  cita- 
tion u(ion  two  of  the  trustees  under  a  mort- 
gage, where  there  were  ten,  the  presumption 
being  as  great  that  all  have  jiccepted  and 
arc  competent  to  act  as  the  two  serve  I 
(there  being  no  evidence  of  acceptance  of 
the  trust  by  any),  will  not  warrant  the  seiz- 
ure and  sale  of  propei  ty  not  in  the  posses- 


JUDGMENT;  DECREE,  3-5. 


81 


sion  or  under  the  imniediaic  control  of  the 
trustees  served  with  citation.  Witherspoon 
V.  yViirv  Pitc.  A\  Co.,  48  Tfx.  309. 

I'laiiititT  l)i)iif;lit  a  ticket  over  a  railroad 
from  a  [)()iiit  cast  to  the  city  of  St.  Luiiis; 
but  its  road  tcnninatetl  on  tiie  east  side  of 
till-  rivci  at  Kasl  St.  Louis,  and  passengers 
transported  across  the  river  to  the 
V  ii\  over  tiie  track  of  a  transit  company. 
I'laiiitilT  was  injured  tlirouph  the  ncylij^ence 
(if  the  latter  company,  and  brought  separate 
suits  against  each  company,  which  were 
coiisolii!  Ill-  '  and  tried  together.  //<■/(/,  no 
error;  and  wiifie  a  vetilict  was  leturned 
against  each,  it  was  proper  to  enter  judg- 
ment thereon,  with  the  provisicjn  tli.it  only 
one  satisfactiiJti  was  to  he  had,  and  leave  it 
t  ■  ..  '  npanies  to  adjust  the  matter  as 
I.  ivv  r  '  ihemselvc.-.  hW/i  v.  lntii<inaf>olis 
&^  .^1.  L.  K.  Co.,  3  MiCtiiry  \U.  S.)  20S.  9 
/•'<•,/.  AV/.  625. 

.'t.  Kiitry  ol'JiidKiiitMit  by  di'fiiiilt.— 
.\(icirding  to  the  common  law  as  in  force 
ill  West  Virginia  there  cannot  ho  a  uiial 
ju(l!;inent  by  default  in  an  action  at  law 
iiguiiist  a  railroad  for  damages  for  personal 
iiijiiries  to  a  passenger  without  a  writ  of  in- 
quiry, where  the  value  in  controversy  ex- 
cieils  S-o.  and  either  party  may,  under  the 
constitution,  demand  atrial  by  jury.  Uuk- 
iiiiiii  V.  lialthnore  &*  O.  A'.  Co.,  30  W,  /'</. 
:'/',  4  .s'.  E.  Kip.  654.— Kevikwinc.  Central 
iS:  M.  K.  Co.  V.  Morris,  6S  Tex.  49,  3  S.  \V. 
ki'li.  J57;  Haltimore  &  O.  K.  Co.  v.  Faulk- 
ii.T.  4  \V.  V'a.  180. 

.Suit  agains'  a  company  for  damages  oc- 
<  asioiie'!  by  th  .'  loss  or  destruction  of  goods, 
as  shown  by  an  itemized  account  supported 
liy  the  aindavit  of  the  plaintifl,  in  accord- 
ancf  with  article  22<'>6  of  Tex.  Rev.  St. 
IiKJyinent  by  default  was  rendered  for  the 
amount  of  the  plaintiff's  claim,  without 
other  proof  than  th<-  claim  itself.  Held, 
that  article  22^)6  di<l  not  apply  to  this  char- 
artcr  of  claim.  To  entitle  a  jilaintiff  to  the 
btiK  fit  of  that  artic.e  it  must  appear  that 
the  debt  claimed  exists  by  contract  between 
il  parties  to  the  suit,  either  express  or 
iiiHilied  ;  in  other  worrls,  the  aciirm  musr 
I)''  founded  upon  a  contrac'.  I/nuston  &■' 
'/■  ('.   A".  Co.  V.   W/iit,;  I    r,x.  App.  (Civ. 

4. hy  oolifV'KHinn.— A  corporation, 

ii'itl-ing  to  the  contrary  appearing,  may,  by 
the  action  of  its  p'oper  officers,  confess 
judgments  as  a  natural  prrson.  if  the  essen- 
tial recpiirements  of  the  statute  are  com- 
6  D.  R.  D.-6. 


plied  with.  SAarp  v.  DnitvilU,  M.  &'  S.  W, 
A'.  Co.,  106  A'.  Ctir.  308,  1 1  S.  E.  AUp.  530. 

Where  a  record  shows  a  judgment  or 
decree  against  a  cor|)oration,  and  further 
sliows  that  such  judgment  was  rendered 
"by  consent  of  the  parties  "  to  the  action, 
there  is  no  presumption  that  sucli  ronsi-nt 
was  given  by  the  attorney  of  the  corpora- 
tion, notwitlistan(iing  the  rule  tliat  '  there 
can  be  no  appearance  of  a  corporation  in 
court  but  by  attorney."  Union  /'lU  .  A'.  Co, 
V.  J/cCir/y,  8  A'ii/i.  125,  5  y/w  AV.  A'</.  112. 
—  FoLl.DWK.n  IN  Piper  v.  Union  Pac.  R. 
Co.,  14  Kan.  574. 

The  New  York  statute  which  declares 
that  all  judgments  confessed  by  the  cor- 
poration after  the  tiling  of  a  petition  for  the 
dissolution  thereof  shall  be  absolutely  void 
as  against  the  receiver  who  may  be  ap- 
pointed <in  such  petition  and  as  against  the 
corporate  creditors,  is  aimed  at  the  confes- 
sion <jf  judgments  made  by  the  corporation 
as  its  voluntary  act  without  the  interference 
of  the  court,  and  does  not  allect  a  consent 
l)y  the  corporation  to  the  entry  (if  an  order 
of  sale  in  foreclosure  proceedings,  which 
rests  ur>on  the  action  and  order  of  the  c<)urt 
at  the  regular  term  and  session  thereof,  al- 
'  hough  such  consent  may  have  been  made 
after  action  brought  for  dissolutitm  of  the 
corporatio:..  llcrriii)^  v.  Se^o  York,  I..  E. 
&*  11'.  A'.  Co.,  35  .Itn.  &*  Enj^.  A'.  Ciis.  54, 
105  A",  r.  340,  19  AM.  A'.  Cas.  340,  12  A'. 
E.  A'lp,  76 J,  7  N.  }'.  .s".  A'.  547;  ii^iniiinif 
34  //////  634,  ///<•«/.,  03  //o7i'.  Pr.  .97. 

rt.  l»o\v«'r  of  vk'rk  to  eiitt  r.-  Wheie 
the  proceeding  is  to  ascert.iin  the  compen- 
satitm  due  for  crossing  one  railroad  by  an- 
other, an  objection  that  the  judgment  or 
decree  is  noi  signed  by  tlie  judge  is  not  well 
taken,  as  there  is  no  provision  of  the  statute 
requiring  the  judge  to  sign  tl'ie  judgment, 
and  the  presumption  is  that  the  judgment 
entered  by  the  clerk  was  directed  and  au- 
thorized by  the  judge;  and  this  presump- 
tion is  strengthencfl  where  the  judge  makes 
further  orders  in  the  cause,  recognizing  the 
judgment  complaini-d  of.  Colifornia  South- 
ern A',  to.  v.  Soutltern  Pac.  R.  Co.,  20  .tni. 
&•  Eng.  A'.  Cis.  309,  67  Cii/.  59.  7  /'<"  •  ^'''•/• 

'23- 

An  action  against  a  railroad  company  to 

recover  for  loss  of  baggage,    under   N.  Y. 

Code,  S  246,  is  an  action  sounding  in  tort; 

and   where  judgment  is  taken  for  want  of 

an  answer,  application  must  be  made  to  the 

court  for  judgment,  as  provided  in  section 


■f^ 


^\ 


89 


JUDGMENT;  DECREE,  0-». 


1 29  of  the  code.     Flynn  v.  Hiuhon  River  A'. 
CU..6J/1W.  f'r.  (.V.  J.)  308. 

«.  What  rvUvf  may  he  (;raiit«Ml, 
|{«n«rally.— Where  a  |iers(jn  adiniis  mat 
he  holils  lands  in  trust  for  a  corporiition, 
and  oilers  to  convey  ihein  upon  p.iyinent 
(or  llie  iniprovenienls,  a  decree  authorizing 
the  corporation  to  acquire  title  to  the  lands 
only  npoii  payment  of  compensation  for  the 
iniproveinenis  is  not  unjust  or  inequitable. 
Ci'.sr  V.  AV//I',  43  ^l"i.  »^  Jiffyf.  A'.  Las.  i,  133 
U.S.  21.  10  .s'//^  U.  I\ip.  216;  affirming  13 
Am.  Sf  E»g.  I\.  Ois.  70. 

A  decree  providinjj  that  a  company  shall 
build  a  bridjje  so  as  to  allow  a  landowner  to 
fjet  from  one  side  of  the  tfit^k  to  the  other 
need  not  give  specific  directions  as  to  how 
it  sliall  be  built ;  but  it  issuindent  to  specify 
that  it  shall  be  prop<;r  and  sutficient  for  the 
pur[)ose  iiitendcfi.  ''iirf>fnt,r  v.  Kaston  6- 
A.  A'.  Co.,  28  A'.  /.  /:y.  .190,  14  -l'"-  ^0-  •/»''/• 
195. 

A  decree  in  a  suit  by  a  company  for  the 
spicihc  performance  of  a  contract  providing 
for  the  ui>e  by  any  railroad  cotiipany  of  a 
line  of  road  constructed  by  another  com- 
pany on  payment  of  a  />ri)  niAi  share  of  the 
cost  of  construction  and  other  expenses,  of 
which  two  other  companies  have  already 
availed  themselves,  properly  directs  the 
paynient  of  "'le  />ro  rata  share  into  court, 
instead  of  directly  to  the  original  compjiny, 
especially  where  niortgages  iiavc  been  given 
upon  the  propijrty.  l.ouiniille  Sr*  A'.  A'.  Co. 
V.  Mississippi H"  T.  A'.  Co.,  92  7V««.  681.  22 

s.  ir.  Av/.  92c. 

7.  t1iMl}>:iii<-iit  must  coiiforiii  to  the 

|ii«>a«UiitJ>«'- -Where  the  action  is  to  re- 
str.iin  the  unlawful  use  and  occnpation  of 
piaintilT's  premises,  and  he  bases  his  right 
to  recover,  in  the  complaint  and  at  the  trial, 
exclusively  upon  his  legal  title  to  the  land, 
and  the  invasion  of  his  right  as  owner,  he 
cannot  sustain  a  judgment  in  his  favor  on 
appeal  on  the  ground  that  the  /ofus  in  quo 
is  a  piiblic  highway  on  which  he  has  rights 
as  abutting  owner,  which  have  been  in- 
fringed by  defendant  company.  \'i\il  v. 
Long  /stand  R.  Co.,  106  X.  V.  283.  12  A'.  A. 
R,-p.  (m7,  8  .V.  J'.  S.  R.  700.  8  Crnt.  AV/.  673; 
rc7'/7  f/'/y  31  ////;/  173,  /«(•;;/.— Fdl.l.DWi  II  in 
Benedict  t.  Seventh  Ward  R.  Co.,  51  Hun 
111,  24  N.  Y.  S.  R.  169,  5  N.  Y.  Supp.  .^06. 
Rkvifavki)  in  Fosdick?'.  Henipstead,  29  N. 
Y.  S.  R.  545. 

,\  court  of  law  cannot  render  a  judgment 
tlint  defendant,  a  corporation,  shall  deliver 


to  plaintifl  so  many  shares  of  stock.  Upon 
a  contract  to  deliver  stock  in  payment  of  a 
debt  or  otherwise,  a  court  of  law  can  only 
award  damages  for  the  failure  to  deliver  ii ; 
and  the  measure  of  damages  fo--  such  failure 
is  the  value  of  the  stock  at  the  time  it 
ought  to  have  been  delivered.  Orange'  l~ 
.,-/.  R.  Co.  V.  Fulvey,  17  Gratt.  (f'n.)  366. 

Where  C.  sued  a  railroad  company  for 
only  S57>  ''"d  did  not  at  any  time  ask  or  ob- 
tain  leave  to  amend,  and  did  not  amend  his 
pleadings,  it  was  error  for  the  court  to  ren- 
der judgment  in  favor  of  the  plaintiiT  and 
against  the  defendant  for  $72  and  costs. 
Atcliison,  T.  «&-  S.  /•'.  A*.  Co.  v.  Combs,  25 
A'liw.  729.— Foi.i.owKi)  IN  Kansas  City,  L. 
&  S.  W.  v..  Co.  V.  klrholsop,  ji  Kan.  28. 

8.  I*ri»vi»ioiiN  aH  to  aiiioiiiit.— In  an 
action  for  damages  the  judgment  should  bo 
for  tht-  amount  assessed  by  the  jury  as  «lam- 
ages,  and  interest  on  this  amount  from  the 
day  ':he  judgment  is  actually  rendered,  and 
not  from  the  first  day  of  the  term  at  whiili 
the  judgment  is  rendered,  /iawlcer  v.  Ral- 
timori  if'O.  R.  Co.,  15  IV    la.  628. 

Where  the  judgment  against  a  raifroad 
company,  and  also  against  a  trust  company 
which  was  operating  the  railroad  for  the 
benefit  of  the  railroad  company  and  its 
creditors,  was  for  $1000  against  the  fornur 
and  $500  against  the  latter,  but  it  ap(>car('d 
from  the  record  that  the  judgment  against 
the  trust  con\iany  was  for  $500  of  the  same 
amount  of  the  judgment  agt;:!t  the  railroad 
company— //«•/</,  that  tlie  judgment  was  not 
in  excess  of  the  amount  claimed  in  the 
petition,  although  the  peiiticm  claimed 
judgment  for  only  $1380.  Union  Trust  Co. 
V.  Cuppy,  1 1  Am.  &•  ling.  K.  Cas,  562,  7.b 
Kan.  754. 

n.  INTEBFRETATIOH  AMD  EFFBOT. 
G0HGLU8IVENE88. 

I.  In  General, 

Vt.  Grnrral  riili>s  of  construct  Ion.— 

A  judgment  against  a  railway  company  in 
favor  of  an  assignee  of  claims  for  labor  per- 
formed for  a  subcontractor,  which  fore- 
closes a  statutory  lien  on  the  projierty  of  the 
company  for  debt,  and  orders  a  sale  of  tlie 
property,  cannot  be  constriierl  as  a  judg- 
ment /';/  personam.  Austin  &*  A'.  W.  R.  to. 
V.  Rueker,  12  Am.  &*  Eng.  K.  Cas.  258.  59 
7V.r.  587. 

A  city  instituted  proceedings  to  condemn 
a  street  across  a  railroad  track,  and  a  dc- 


JUDGMENT;    DECREE,  10-13. 


88 


crce  was  entered  by  consent  condemning 
till'  hiiul,  but  providinjj  that  the  company 
should  have  the  right  to  maintain  its  tracks 
anil  switches  upon  tlic  land,  with  the  right 
to  construct  further  tracks,  switches,  and 
turnouts.  //«•/</,  that  the  riglits  of  the  city 
in  the  street  could  only  he  determined  by 
the  terms  of  the  decree,  and  evidence  of  the 
copsidoralion  which  led  to  the  entry  of  the 
decrte  by  consent  was  immaterial  and  prop- 
erly excluded.  A'lVisiis  Ctty,  St.  J.  &•  C.  /> 
A".  Co.  V.  St.Josipft  Tertnifial  /'.  Co.,  97  Mo. 
457,  J  /..  A'.  ./.  240.  10  .V.  //'.  Rep.  826. 

10.  KtttM-t  <»f  JiKlKiiiiMitH  and  (l(>!- 
enM's,  gfiM'rnlly.  —  Tljere  is  no  doubt 
tli.ii  by  tiie  first  section  of  the  5th  article  of 
tilt;  Constitution  of  the  U.  S.,  and  the  Act 
of  ("oiifjress  of  May  28,  17^)0.  in  conformity 
tlitrewith,  a  judgment  of  a  state  court  lias 
the  same  credit,  validity,  and  elTect  in  every 
oilier  court  in  the  United  States  that  it 
has  in  the  state  where  Jt  was  rendered. 
luu'liiuui  Co.  V.  Mercer,  11  /'////<».  (/'</.) 
2:0. 

A  juil^nient  for  the  value  of  horses  lost 
to  'he  owner  by  ncfjligence  of  the  defendant 
of  it  elf  passes  title  to  the  horses  to  the  de- 
fendant becoming  liable  for  their  value. 
St.  Louis,  A.  <S-  7"  A'.  Co.  v.  Mth'insey,  78 
r,x.  298.  14  .V.  /f .  AV/*.  645. 

One  holding  a  judgment  against  a  rail- 
rnad  brought  a  suit  to  have  another  judg- 
ment, and  a  lease  of  the  road  to  secure  it. 
declared  void  for  fraud,  and  obtained  a  de- 
cree aci-ording.  ///•/(/,  that  the  decree  did 
noi  atlect  the  validity  of  the  jurlgment  and 
the  lease  as  between  the  parties  t'.ercto. 
Gra/iam  v.  I.a  Crossed-  Af.  A.  Co.,  3  ll'a//. 
(T.  .S.)  704. 

A  pariy  subscribed  f«>r  twenty  shares  of 
rnilroad  stock  amounting  to  $2000,  and  paid 
one  half  of  the  amount,  but  failed  to  pay 
tiie  amount  of  the  f)ther  calls  as  they  were 
made,  and  was  subsequently  sued  by  the 
company  to  recover  the  remaining  $1000. 
The  subscriber  inter|K»»ed  a  plea  of  the 
Si  .  le  of  limitations  which  was  held  good 
as  to  igSoa,  Hnd  judgment  was  entered  for 
the  remaining  $200.  which  was  paid  Sub- 
sequently proceedings  were  commenced  to 
coin|iel  the  company  to  issue  certificates  for 
the  full  twenty  shares.  //«•/</.  that  sustain- 
i"!,'  thi-  plea  of  the  statute  of  limitations  as 
to  the  jXtyj  did  not  raise  a  presumption  of 
pnyment.  and  he  was  only  entitled  to  cer- 
tificates for  the  shares  |)aid  for,  Jo/in.wn  v. 
Albany  &*  S.  A'.  Co.,  54  A'.  )'.  416.  6  .////.  A'y. 


Rep.    331 ;    reversittg  40  How.  Pr.    193,    $ 
I.ans.  222. 

1  1.  KflVet  iiH  evideiivts— After  a  rail- 
road went  into  the  hands  of  a  receiver, 
plaintid,  without  leave  of  the  court,  insti- 
tuted a  proceeding  against  the  company  in 
another  court  and  took  judgment  by  con- 
sent, and  then  filed  his  petition  asking  to 
intervene  and  to  have  the  amount  of  the 
judgment  allowed  as  a  prior  lien.  No  tes- 
timony was  offered  in  the  intervention  save 
tlie  judgment  itself.  Held,  that  the  judg- 
ment was  not  admissible  in  evidence 
against  the  receivers,  in  so  far  as  they  rep- 
resented the  bondholders,  as  they  were  not 
parties  to  the  proceeding  in  which  the 
judgment  was  taken ;  and  it  was  not  in 
itself  sutTicient  to  establish  a  prior  lien  as 
against  the  bondholders.  Wabash,  St.  L. 
&*  /*.  A'.  Co.  V.  Central  Trust  Co.,  33  J''e<l, 
Rep.  238. 

12.  tliMl((iii4Mit  of  no  f'or<><'!  iiiiU'mm 
court  liiul  JiiriNdiotioii.— It  is  well  set- 
tled, that  to  entitle  the  judgment  to  full 
faith  and  credit  in  an  action  in  personam 
it  is  essential  that  it  be  rendered  by  a  tri- 
bunal having  jurisdiction  over  the  person 
of  the  defendant.  Kailroad  Co.  v.  Mercer, 
II  rhila.  (/'.».)  226. 

m.  MtTKor  of  oriKiiiiil  muNt'  ul' 
net  ion,  <»r  coiitnu't.— A  municipal  cor- 
poration issued  its  bonds  in  payment  of  rail- 
road stoi  k.  and  alter  default  a  bank  hold- 
ing a  portion  of  the  bonds  brought  suit 
thereon  ;  but  pending  the  suit  the  bank  and 
the  town  agreed  on  a  compromise,  reduced 
it  to  writing,  and  a  judgment  was  entered 
thereon  for  less  than  the  amount  of  the 
boiids.  Held,  that  the  etiect  of  the  com- 
pvomise  and  judgment  was  to  merge  the 
town's  liability  on  the  bonds  in  that  on  the 
judgment,  and  to  destroy  the  bonds  as  a 
cause  ol  action,  and  to  leave  the  judgment 
as  the  only  legal  evidence  of  indebtedness 
from  till'  town  to  the  bank.  Mobile  Hank 
V.  .Mobile  &*  O.  R.  Co.,  t';9  Ala.  305. 

The  «'(Tect  of  an  exuress  provision  of 
such  compromise  and  judgment,  that  the 
judgment  rendered  in  pursuance  of  the 
compromise  was  in  full  satisfaction  of  the 
bonds  and  coupons  held  by  the  plaintiff, 
was  to  leave  the  parties  as  if  the  plaintiff 
had  never  owned  or  asserted  a  greater 
claim  aiiainst  the  defendant  than  shown  by 
the  judgment  recovered.  MMle  Ha.tk  v. 
Mobile  5-  O.  A'.  Co..  69  /11a.  305. 

Any  effort  to  collect  the  balance  of  the 


f 


84 


JUDGMENT;   DECREE,  14. 


amount  of  the  bonds  miRht  be  defeated  by 
a  |>lea  of  former  recovery;  for  a  judgment 
inter  partes,  not  reversed  and  not  success- 
fully assailed  for  fraud,  or  on  some  other 
ground,  is  conchisivc  against  each  party 
who  is  properly  before  tiie  court ;  against 
the  defendant  that  the  amount  adjudged  is 
due,  and  against  the  piaintilT  that  no  more 
is  due  on  account  of  the  contract  or  liabil- 
ity sued  on.  Mobile  Hank  v.  Mobile  &-  O. 
A'.  Co..  69  y//</.  305. 

I'nder  the  Iowa  ftatute  prohibiting  the 
lay'iig  of  a  railroad  track  in  a  street  before 
the  damage  is  ascertained  and  paid  to  abut- 
ting pri)i)orty  owners,  the  right  of  an  abut- 
ting |)roperty  owner  to  enjoin  the  company 
from  occupying  the  street  on  the  ground 
that  it  is  a  trespasser  and  maintaining  a 
nuisance,  is  not  merged  in  a  judgment  ob- 
tained by  him  against  the  company  for 
damages  to  his  property,  which  has  not 
been  paid.  Harbach  v.  Des  Moines  &•  A'. 
C  />'.  Co.,  43  Am.  &-  Eng.  R.  Cas.  115,  80 
/oiva  593,  44  A'.  IV.  Kep.  348.  • 

2.  How  far  Conclusive.     Kes  Judicata. 

14.  Scope  mill  extent  of  the  rule 

of  rehjuillfnta.— Where  a  corporation  is 
made  a  defendant  to  a  foreclosure  suit,  and 
has  been  recognized  by  the  plaintitis,  and 
by  the  trial  court,  and  by  the  supreme 
court  on  appeal,  as  an  existing  corporation, 
it  is  loo  late,  for  the  purpose  of  the  suit,  to 
question  the  legal  existence  of  the  corpora- 
tion, especially  on  a  mere  motion,  fiotuard 
V.  La  Crosse  &'  M.  R.  Co.,  ll'ooliv.  (U.  S.) 

49 

Where  a  company  refuses  to  deliver 
freigiits  to  the  proper  owner  or  consignee, 
on  the  ground  that  it  has  a  lien  thereon  for 
freight  charges  and  slorag'  ,  and  the  owner 
resorts  to  a  suit  to  recover  possession  of  the 
prop(  -ty,  it  cannot  claim  judgment  on  the 
ground  that  it  has  a  lien  for  storage,  where 
it  has  been  decided  that  it  had  no  lien  for 
freight  charges.  SicarJ  v.  liuffalo.  A',  1', 
Z"  /'.  R.  Co.,  15  B latch/.  (U.  S.)  ^2^. 

A  judgment  confirming  special  assess- 
ments upon  property  benefited  by  a  pro- 
posed public  improvement  is  conclusive  as 
to  any  and  all  objections  and  defenses  that 
might  hrive  been  interposed  thereto.  On 
appli'-a:ion  for  judgmeni  against  the  lands 
for  fttiinquent  asacssments,  it  rannol  be 
shown  that  the  property  was  exempt,  or 
not  benefited,  or  that  the  ordinance  under 
which  they  were  made  was  invalid.    All 


such  matters,  after  the  judgment  of  confir- 
mation, become  res  judicata.  Chicago  «;~ 
A'.  \V.  R.  Co.  v.  People  e.v  re  I.,  31  Am.  t~ 
Eng,  R.  Cas.  487,  120  ///.  104,  11  A'.  E.  Rep. 
^18.— Not  foi.i-dwino  Riverside  Co.  v. 
Howell,  113  III.  263. 

The  question  of  defendant's  liability  to 
erect  a  crossing  having  been  adjudicated  in 
its  favor,  an  instruction  in  a  sui)scqueni 
action  submitting  to  the  jury  the  deter- 
mination  of  the  kind  of  crossing  defendaiii 
should  provide  was  held  to  be  erroneous. 
luttys  v.  C/iicago,  M.  kt*  St.  P.  R.  Co.,  43 

/(WrI  602. 

Where,  in  a  former  case,  in  the  same 
court,  between  the  same  parties,  it  had 
been  adjudicated  that  a  cert.iin  alleged  con- 
tract relied  on  by  defendant  did  not  e.xist, 
it  was  proper,  in  a  subsequent  case,  to 
strike  out  an  answer  setting  uj)  the  same 
contract,  and  to  exclude  evidence  of- 
fered to  prove  it.  Estes  v.  Cliicago,  I.  &* 
D.  R.  Co.,  72  lo^oa  235.  33  A'.  W.  Rep.  647. 
— FoLl-owiNd  Chicago,  I.  &  D.  R.  Co.  v. 
Estes,  71  Iowa  603. 

On  an  appeal  to  the  circuit  court  from 
an  award  of  commissioners  in  a  proceeding 
under  III.  Right  of  Way  .Act  of  r852,  by  one 
of  several  defendants  therein,  there  having 
been  no  notice  to  other  parties  claiminj;  an 
interest  of  the  taking  of  such  appeal,  or  of 
any  proceeding  in  court  to  adjuclicaie 
upon  their  interests  or  upon  conflicting  in- 
terests in  the  land  condemned,  and  it  not 
appearing  that  they  ever  had  any  notice 
whatever,  or  were  in  any  way  brought  into 
court,  further  than  the  giving  of  the  notite 
to  them  of  the  filing  of  the  petition  in  the 
riglit  of  way  proceeding  and  of  the  making 
of  the  application  for  the  appointment  of 
the  commissioners,  there  was  an  adjudica- 
tion that  the  condemnation  money  awarded 
in  respect  to  certain  interests  in  the  land 
should  be  paid  to  the  party  taking  such  ap 
peal,  as  the  one  entitled  thereto.  Hi  Id. 
that  such  adjudication,  as  respects  the  rail- 
road company  in  whose  interest  the  con- 
demnation money  was  paid,  was  conclusive 
upon  any  of  the  parties  to  the  original 
right  of  way  procee»ling  who  m  ^ht  ctiim 
adversely  to  the  pait\  who  w.is  thus  nl- 
judged  to  be  entitled  to  the  money.  <  hi- 
(ago,  n.  «S-  Q.  R.  Co.  v.  Chatnberldin,  84  ///. 
333,  16  Am.  Ry.  Rep.  \&> 

In  action  of  forcible  detainer,  l)y  the 
owner  of  land  over  which  was  constru(  icd 
a  connecting  railroad  track,  to  recover  pos- 


JUDGMENT;   DECREE,  15,  10. 


85 


session  of  the  ground  upon  which  tlic  track 
was  constructed,  the  court  found  that  the 
traci<  wus  built  under  a  mere  verbal  license 
from  the  owner,  and  not  under  a  contract 
with  him,  and  this  judgment  was  afTirmcd 
hv  the  appellate  court  and  by  this  court. 
//(•/,/,  on  a  bill  to  enjoin  proceeding's  under 
tlie  ju(i<,'ment,  and  for  a  specific  perform- 
aiuc  of  an  alleged  co.itract  to  grant  'hn 
ri^'hi  of  way,  that  such  judgment  was  con- 
clu-iivc  upon  the  parties  that  there  was  no 
coiitiai  t,  but  only  a  mere  license.  S/.  Louis 
X,}1.  Stock  Yards  v.  W^gins  Ftrry  Co.,  I12 
///.  3.S4.  — FoLUJWiNd  St.  Louis  Nat.  Stock 
V.iiilsT'.  Wij-gins  Ferry  Co.,  102  111.  514. 

15.  ItH  liiiiitM  uimI  c.\f<>ptioiis.— 
Wiicrc  a  railroad  company  applies  for  an 
iiijiiti'tioii  to  restrain  a  defendant  from  in- 
tci firiiii,'  with  its  right  of  way,  and  the  in- 
jiiiKtiori  is  refused  upon  the  ground  that 
the  defendant  is  not  likely  to  interfere  with 
the  ri^ht  of  way  as  charged,  it  is  no  adjudi- 
c.iion  that  the  properly  which  the  com- 
pany desired  to  have  the  defendant  enjoined 
from  disturbing  does  not  belong  to  the 
company.  Dryden  v.  St,  Joseph  S*  D.  C.  A'. 
Co..  23  A'ati.  525. 

Under  the  Pa.  practit  i,  a  preliminary  in- 
junction granted  by  all  the  judges  of  the 
.sii|ireme  court,  at  nisi pritis,  in  suits  where 
corporations  are  parties,  '3  usually  re- 
garded as  res  judicala  ;  but  i^ot  wliere  the 
injunction  was  granted  by  a  divided  court, 
mil  on  final  hearing  a  majority  think  the 
(iecree  wrong.  PliiUtdi'lffliitt  V.  Pliiladel- 
phia  &*  A\  A'.  Co.,  58  /'«.  S/.  253. 

the  rule  that  a  party  to  a  judgment  is 
cstopijod  from  re-litigating  questions  the 
(lei  ision  of  which  was  involved  therein 
il:)es  not  extend  to  eslop  the  plaincitT  from 
setting  u|>  in  a  subsequent  action,  where  the 
I  I'usi  of  action  is  not  the  same,  the  uncon- 
stitniionality  of  a  statute  upon  which  the 
jifior  action  proceeded.  Wherefore,  al- 
though the  city,  in  Philadelphia  ?'.  Railway 
Co.,  102  Pa.  St.  [90,  claimed  and  recovered 
a  jiidtjnient  against  the  Ridge  Avenue  R. 
to.  for  the  taxes  of  the  years  1872  to  1879, 
ini  Uisive,  at  the  rate  prescribed  by  the  act 
•)(  i«7-.  it  was  not  thereby  estopped  from 
asserting  its  unconstitutitmality  in  a  later 
suit,  brought  for  the  taxes  of  subsequent 
years.  /'/ii/,idi//'/ii,i  v.  A'id^i-  . Ivi:  A.  Co. , 
34  h'l.  (S-  Khj;.  A'.  Ciix.  3:9.  14.-:  /\t.  .sf. 
484, -N  .-///. /\V/.  982.-  IHsriNtiUisHiNt;  Ik- 
loit  7'.  Morgan.  7  Wall.  (U.  S.)  619;  Aurora 
V.  West,  7  Wall.  85  ;  Durant  ?'.  Kssex  Co..  7 


Wall.  107 ;  Corcoran  v.  Chesapeake  &  O. 
Canal  Co.,  94  U.  S.  741 ;  Wilson  v.  Deen, 
121  V.  S.  525;  Duchess  of  Kingston's  Case, 
2  Sm.  Lead.  Cas.  (8th  ed.)  941.  QuoTiNU 
Cromwell  v.  Sac  County,  94  U.  S.  352. 

The  trustees  named  in  a  mortgage  exe- 
cuted by  a  railroad  company  to  secure  its 
bonds  brought  a  foreclosure  suit,  and,  un- 
der the  decree  rendered,  became  the  pur- 
chasers of  the  mortgaged  property,  which 
they  conveyed  to  a  new  company  chartered 
by  the  legislature.  In  a  suit  in  a  state  court, 
to  which  they  were  made  defendants,  they 
set  up  that  they  were  entitled  to  the  |>osses- 
sion  of  county  bonds  voted  the  original 
company  for  delivery  to  the  new  company. 
//i/d,  tliat  a  liecree  against  ihem  does  not 
estop  the  creditors  of  the  old  ciiUipany,  who 
were  secured  by  that  mortgage,  from  assert- 
ing their  right  to  subject  the  county  bonds 
to  the  payment  of  their  clainis,  the  proceeds 
of  the  sale  of  the  mortgaged  property  being 
insutficient  for  the  purpose.  Morgan  County 
V.  Allen,  3  Am.  <S««  £"«;,• .  R,  Cas,  92,  103  U, 
S.  498. 

A  county  and  a  railroad  company  were 
made  defendants  in  a  suit  commenced  by 
citizens  of  the  former  to  enjoin  the  convey- 
ance of  certain  lands  by  the  county  to  the 
railroad  company.  On  final  hearing  the  in- 
junction was  refused.  Held,  that  the  judg- 
ment in  such  action  did  not  constitute  an 
adjudication  of  the  question  involved  as  be- 
tween the  defendants,  it  not  appearing  that 
their  interests  at  that  time  were  adverse. 
Tai'ia  County  v.  Atelendy,  55  Iowa  395,  7  N. 
W.  Ai-p.  669. 

In  an  action  origin;dly  brought  to  re- 
cover the  statutoi  y  penalty  of  three  times  the 
excess  for  an  exaction  of  excessive  charges 
for  the  carriage  of  goods,  it  was  deter- 
mined that  such  an  action  would  not  lie,  by 
reason  of  a  repeal  of  the  statute.  The  prayer 
of  the  com|)laint  was  then  changed  so  as  to 
demand  only  the  illegal  excess.  Held,  that 
this  was  in  effect  an  amendment  of  the  com- 
plaint itself:  and  that  the  question  whether 
the  action  would  lie  under  such  amended 
comphiint  was  not  res  judicata.  Smith  v. 
Chicai,-o  &^  X.  //'.  A".  Co  ,  1  Am.  Jt*  lintr.  K. 
Cas.  303,  49  Wis.  443,  5  A'.  H'.  Kep.  24vi. — 
QuoiiNc,  Rood  V.  Chicago,  M.  &  St.  P.  R. 
Co.,  43  Wis.  146. 

10.  What  actioiiM  or  proceed iiiKti 
are  l»arr<Ml.— In  chancery  suits  adverse 
interests  between  codefendants  may  be  de- 
cided.    So  a  decree  adjudging  ceitain  mu- 


f.   ll 


•'^"    \ 


^  m 


:fI 


86 


JUDGMENT;   DECREE,  10. 


'M 


nicipat  bonds  issued  (or  railroad  stock  in- 
valid, on  an  issue  between  co-defendants, 
may  be  set  up  by  the  parties  to  that  suit  or 
their  privies  as  a  bar  to  a  subsequent  suit 
on  the  bonds.  Louis  v.  Jlrmim  Tf>.,\lAm. 
<S-  Kng.  A'.  CViJ.  630,  loQ  v.  S.  162,  3  Sup. 
a.  Rep.  92. 

Under  the  Ohio  laws,  a  judgment  in  a 
mandamus  proceeding,  by  the  holder  of  mu- 
nicipal railroad  bonds,  denying  the  writ  to 
compel  a  levy  of  taxes  to  pay  interest,  on 
the  ground  of  the  invalidity  of  the  bonds,  is 
a  bar  to  a  subsequent  suit  to  recover  the  in- 
terest by  the  plaintiff  in  the  mandamus,  or 
tliose  holding  under  him.  Louis  v.  lirtnvH 
Tp.,  15  Am.  &*  Eng.  A'.  Cas.  630,  109  U.  S. 
162.  3  Sup.  Ct.  Rip.  92. 

Where  an  action  was  instituted  by  the 
taxpayers  of  the  county  for  the  purpose  of 
testing  the  legality  of  the  proceedings  to 
authorize  the  issue  of  bonds  to  a  railway 
company,  and  the  court  determined  such 
proceedings  to  be  legal  and  competent,  such 
judgment  settles  the  authority,  and  though 
not  strictly  pleaded  in  bar,  would  necessarily 
have  weight  in  determining  the  same  ques- 
tion in  a  subsequent  action  on  the  bond. 
Clttpp  v.  Ceiiar  County,  5  lowu  1 5. 

A  judgment  for  daniages  to  an  abutting 
lot,  caused  by  the  construction  of  a  railway 
along  the  street,  is  a  bar  to  an  action  for 
damages  to  another  abutting  lot,  owned  by 
the  same  party,  two  hundred  and  sixty  feet 
distant  from  the  first  lot,  arising  from  the 
same  cause,  and  accruing  at  the  same  time, 
and  prior  to  the  tiling  of  the  complaint  in 
tlie  first  action ;  nor  is  he  entitled  to  re- 
cover for  the  continued  operation  of  the 
railroad  after  the  judgment  in  the  former 
action,  where  the  evidence  shows  no  dam- 
ages accruing  after  that  date.  Bcronio  v. 
Southern  Pac.  R.  Co.,  46  ^Im.  &"  Eng.  R. 
Cos.  66,  86  Ctil.  415,  24  Pttc.  Rep.  1093. 

Where  a  person  brings  an  ordinary  suit 
against  a  railroad  company  for  killing  live 
stock,  and  judgment  is  rendered  for  the 
company  on  appeal,  it  is  a  bar  to  a  second 
proceeding  under  111.  Rev.  St.,  ch.  114,  jJ  87, 
providing  that  "  the  person  aggrieved  "  may 
bring  an  action  in  the  name  of  the  state  to 
rccovera  penalty  for  running  any  train  or  en- 
gine throngh  an  incorporated  place  at  a 
speed  greater  than  that  allowed  by  ordi- 
nance. Terre  Haute  &>  /.  R.  Co.  v.  People, 
41  III.  A  pp.  513. 

Where,  in  consideration  of  the  convey- 
ance of   a   right  of    way,  a  railroad  com- 


pany contracts,  with  the  landowner  to  con- 
struct and  maintain  fences  along  sucIj  right 
of  way  and  a  crossing  over  the  road,  a  judg- 
ment, in  an  action  upon  such  contract,  for 
damages  for  a  failure  on  tlie  part  of  the  com- 
panv  to  construct  the  crossing,  is  a  bar  10  an 
action  for  a  failure  to  construct  the  fences, 
although  in  the  former  action  the  plaintilf 
expressly  dismissed  and  withdrew  from  the 
jury  all  claim  for  damages  relating  to  the 
failure  to  construct  the  fences.  Indinna,  P. 
&*  W.  R.  Co.  v.  Koons,  24  ,-/;//.  &^  Eng.  R. 
Cas.  376.  105  InJ.  507,  5  X.  E.  Rep.  549-  — 
Distinguishing  Block  ?'.  Ebner,  54  Ind. 

544. 

Wliere  an  action  against  a  railway  com- 
pany for  damages  in  consequence  of  its 
failure  to  provide  a  crossing  had  resulted 
for  the  defendant,  another  action  could  not 
be  maintained  to  compel  it  to  provide  a 
crossing.  Bettys  v.  Chicago,  M.  &^  St.  P.  R. 
Co..  43  /t«i<i  602,  14  -■////.  Ry.  Rep.  481. 

Where  a  cause  of  action  against  carriers 
for  negligence  is  of  such  a  character  that  it 
may  be  prosecuted  either  by  the  owners  of 
the  property  or  by  their  agent  (on  account 
of  an  express  contract  between  the  agent 
and  the  carriers),  a  judgment  in  favor  of 
the  carriers  in  a  suit  brought  by  the  owners 
is  a  bar  to  a  subsequent  suit  by  their  agents 
Green  v.  Clark,  5  Den.  (A'.  1^.)  497. 

Where  the  consignor  recovers  from  an 
express  company  the  value  of  a  money 
package  intrusted  to  them  for  delivery, 
which  they  retained,  the  parties  to  whom  it 
was  consigned  not  being  found,  such  recov 
ery  will  bar  an  action  for  the  monev  by  the 
consignee  against  the  carrier.  Tlt^nipson  \ . 
Fargo,  '8  Barb.  (A'.  1^.)  575  ;  reversed  in  4v 
A'.  Y.  188,  44 /Aw.  /v..  1 76. 

A  judgment  in  favor  of  a  carrier,  in  i.n 
accion  by  him  to  recover  freight,  is  a  liar  td 
an  action  by  the  owner  of  the  goods  shipped 
to  recover  daiTiages  for  destruction  of  the 
property  caused  by  a  failure  on  the  part  oi 
the  carrier  to  perform  his  contract  of  trans- 
portation. Where  the  goods  are  so  de- 
stroyed, the  shipper  is  exciiset'  freight,  the 
failure  t(}  perfDrni  is  a  defense,  going  to  tlie 
whole  cause  of  action  for  freight,  and  may 
be  proved  under  the  general  issue.  Dun 
ham  V.  Bc-.uer,  77  A'.  I'.  76.  South  &^  X. 
Ala.  R.  Co.  V.  Henlein,  56  Ala.  368,  19  Am. 
Ry.  Rep.  200. 

Where  suit  is  brought  for  personal  injii 
ries,  caused  by  negligence,  and  a  judgment 
is  entcicd  for  the  company  on  a  defense 


JUDGMENT;   DECREE,  lO. 


87 


(Iciiyinj;  the  negligence  cliargcfl,  or  "  any 
ntKli),'i-'nce  whereby  the  plaintiff  was  in- 
jured," such  judgment  is  a  bar  to  a  second 
suit  for  the  same  injury,  though  alleging 
uLjjligcnce  somewhat  different   from   that 

I  harmed  in  the  first  suit.  McCain  v.  Louis- 
villi-  Sm  N.   a:    Co.,  (A>.)   22  S.    IV.  Jiep. 

If  a  servant  or  agent  wrongfully  dismissed 
frniii  service  elect  to  sue  for  the  breach  be- 
lorc  the  termination  of  the  period  for  which 
lie  was  hired,  and  recovers,  such  recovery 
will  be  a  bar  to  any  subsequent  action  upon 
the  same  contract.     liooge  v.  Pacific  R.  Co., 

II  Mo.  212. 

A  decree  in  a  bill  by  a  stockholder,  for 
the  benefit  of  himself  and  all  other  stock- 
holders who  come  in,  to  enjoin  the  consum- 
mation of  an  agreement  by  the  corpora- 
tion is  conclusive  in  a  subsequent  suit  by 
another  stockholder  for  the  same  purpose 
and  involving  the  same  question,  in  the 
absence  of  fraud  or  collusion.  Willoughby 
v.  Chicago  J.  R.  &*  U.  S.  Co.,  50  A'.  J.  Eq. 
656.  25  Atl.  Rep.  277.— QuoTiNc.  Hill  v. 
Hain,  15  R.  I.  75,  23  Am.  Rep.  44  ;  Gaskcll  v. 
Dudley,  6  Mete.  (Mass.)  546;  Dewey  7'.  St. 
Albans  Trust  Co.,  60  Vt.  1,  6  Am.  St.  Rep. 
84;  Dannnieycr  z/.  Coleman,  11  Fed.  Rep. 
97;  Harmon  v.  Auditor.  123  III.  122. 

Where  a  judgment  has  been  obtained 
;i^'aiiist  a  corporation  for  the  price  of  goods 
sold.iin  action  cannot  be  maintained  against 
it  for  fraud  in  obtaining  credit  for  the 
fjoods;  the  judgment  for  the  purchase  price 
is  lis  complete  and  full  a  remedy  as  would 
lie  a  jutlgment  for  damages  because  of  the 
(raufl.  Cay/tts  v,  Niii'  Y'or/:,  A".  &*  S.  R. 
Co.,  76  .\'.  1'.  609,  49  Htntf.  Pr.  100;  affirming 
10  Uiin  295. 

Where  the  receiver  of  a  railroad  company 
brings  ;m  action,  the  defendant  cannot  set 
up  as  a  defense  the  invalidity  of  the  receiv- 
er's appointment,  where  it  appears  that  in 
former  litigation  between  the  same  parties 
tlie  same  charge  had  been  made  and  the 
valiiliiy  of  the  ap|)<)intment  sustained  ;  and 
tiiis  is  so  though  the  amount  of  the  judg- 
nieiii  iu  the  former  litigation  was  too  small 
to  entitle  defendant  to  an  appeal,  (iriffin 
V.  Long  Island  A".  Co.,  102  A^.  )'.  449,  7  X.  E. 
/'■'/•  735.  2  A'.   Y.  S.  R.  454. 

Where  a  railroad  mortgage  is  made  to  a 
state  treasurer  in  trust  to  secure  the  com- 
pany's bonds,  the  bondholders  are  bound 
by  a  judgment  in  a  suit  t<»  foreclose  another 
niortf,'age,  claiminj;    to   constitute   a    prior 


lien,  to  which  the  treasurer  is  made  a  de- 
fendant; and  the  fact  that  the  bonds  con- 
tain stipulations  which  destroy  their  nego- 
tiability would  not  alter  the  case  where 
such  fact  did  not  appear  from  the  mortgage. 
/o7(/a  County  v.  .Mineral  Point  R.  Co.,  24 
Wis.  93. 

Plaintiff  conveyed  a  right  of  way  over  his 
land,  with  a  provision  in  the  deed  that  the 
company  should  build  a  good  and  lawful 
fence  on  both  sides  of  the  road  and  should 
make  a  crossing.  Afterward  he  brought  an 
action  against  the  successor  of  the  company 
for  the  purpose  of  having  the  deed  can- 
celed and  for  general  relief,  on  the  ground 
of  failure  to  build  the  fence  and  crossing, 
claiming  that  he  was  entitled  to  a  five- 
board  fence  under  some  understanding 
when  the  agreement  was  made,  but  his  pe- 
tition was  dismissed  after  a  trial  on  the 
merits.  I/c/d,  that  the  judgment  therein  was 
admissible,  in  a  subsequent  suit  to  recover 
damages  for  a  failure  to  maintain  a  five- 
board  fence  and  two  crossings,  for  the  pur- 
pose of  showing  that  the  deed  was  sustained 
in  all  of  its  provisions.  Hunter  v.  Hurling- 
ton,  C.  R.  &*  N.  R.  Co.,  76  lowt'  490,  41  N. 
ir.  Rep.  305. 

In  an  action  brought  against  one  of  two 
railroad  companies  for  breach  of  their  joint 
agreement  to  carry  goods  from  A.  to  B  , 
the  defendant  denied  that  it  had  agreed  to 
cany  or  be  responsible  for  the  goods  except 
for  part  of  the  distance.  The  issue  thus 
joined  was  found  for  the  defendant,  and 
judgmcni  entered  thereon.  /lel<l,  that  this 
judgment  was  a  bar  to  any  subsequent  ac- 
tion against  both  companies  upon  the  same 
contract.  Reynolds  v.  Pittsburgh,  C.  *^  St. 
L.  R.  Co.,  29  Ohio  St.  602. 

Defendant  having  moved  the  court  to 
direct  a  verdict  in  its  favor  on  each  of  the 
three  cau.ses  of  action  stated  in  the  com- 
plaint, the  court  directed  the  jury  that  the 
damages,  if  any,  assessed  against  defendant 
must  be  confined  to  the  first  and  third 
causes  of  action,  as  the  evidence  in  relation 
to  the  second  cause  was  insufficient  to  au- 
thorize any  damages.  The  jury  returned  a 
general  verdict  f<'r  piainlills,  assessing  thi-ir 
damages  at  a  certain  sum.  /Mil,  that  as  to 
the  secDiri  cause  of  aciion  this  must  be 
treated  as  a  verdict  in  favor  of  defendant, 
and  that  the  judgment  thereon  was  a  bar  to 
a  subsecpient  action  for  that,  cause.  Morgan 
V.  Chicago,  M.  &-•  St.  P.  R.  Co.,  83  Wis.  348, 
53  A^.  ik  Rep.  741. 


I 


•i       ■    '^>'* 


\  4 
1 


88 


JUDGMENT;   UliCREE,  17. 


4 


I 


17.  >Vliat  nctiuiiM  or  |»rwvi>c(liiiKH 
nn*  not  Imrn'il.— (I)  Inf^tHttct/. — Wlicrc 
a  s:il)s(ril)irr  t(i  corpDrate  stock  is  sued  to 
ri'ci)vcr  a  stuck  assessment,  a  jiidnmcnt  that 
the  action  is  harrcd  by  tlie  statute  of  linii- 
taiioiis  will  not  prevent  a  recovery  in  a 
sul)se(|uent  suit  based  on  subsequent  as- 
sessments. I'riint  V.  1.11(11)1,  51  /■<•(/.  A'//. 
405.  4  //.  .s".  .///.  509,  2  t".  f.  A.  311 ;  <f/- 
firming  47  Fni.  AV/».  472,  48  Jud.  /\'i-/>.  ly. 

Where  a  railroad  bridf,'e  is  im|)irfectly 
ninstructcfl  so  as  to  prevent  the  free  pas- 
sa^^eof  water,  and  to  throw  it  back  on  jjlain- 
tilT's  land,  a  judgment  for  the  damages 
causi'd  for  the  creation  of  a  nuisance  by 
means  of  the  bridge  will  not  bar  a  subse- 
quent action  for  damages  caused  by  its 
continuance  in  such  t)ad  condition.  C/ii- 
otj^'o,  li.  &-  Q.  A'.  Co.  V.  S(/iiiJf,r,  34  ^l»i.  ilj- 
Jui^.  /\'.  Cits.  174,  124  ///.  112.  14  /fVi/.  />'</. 
139, 16  A',  /i,  A'i/>.  239;  iij/irmi'iij,'  26  ///.  ////». 
280.— nisriN(!UisniN(;  Chicago  &  E.  I.  R. 
Co.  7>.  Loeb,  118  III.  203.--AiM'KoVKi)  in 
Ohio  &  M.  R.  Co.  V,  Singletary,  34  III.  App. 
425.  DlsiiN(;uisnKi)  IN  Wabash  R.  Co.  7'. 
Sanders,  47  III.  App,  436.  yuoiKU  in  St. 
I.ouis,  A,  &  T.  H.  R.  Co.  V.  Brown,  34  III. 
App.  552. 

In  suci'.  a  case  plaintitT  is  not  bound  to 
assume  that  the  imperfect  structure  will  be 
permanent ;  but  lie  has  a  right  to  regard 
the  nuisance  as  of  a  transient  character, 
and,  instead  of  bringing  one  action  for  the 
whole  injury  to  the  value  of  his  prope/'y 
resulting  from  the  original  construction  of 
the  bridge,  he  may  sue  for  the  amount  of 
such  injury  as  he  suiiers  from  its  continu- 
ance. C/iUit^o.  /)'.  &^  Q.  A'.  Co.  V.  Schaffer, 
34  /ifw.  <S-  ling.  R.  Cas.  174,  124  ///.  112,  14 
West.  Rep.  139. 16  A^.  E.  Rep.  239;  affirming 
26  ///.  App.  280. 

If  a  passenger  who  is  seated  by  an  open 
window  of  a  car  receives  an  injury  from  the 
swinging  of  an  unfastened  door  of  a  car 
which  has  been  left  by  another  railroad 
company  standing  upon  a  track  parallel 
witli  that  over  wliicli  he  is  riding,  an  award 
in  his  favor  against  the  company  by  which 
the  stationary  car  was  left  in  its  position, 
which  has  been  returned  into  the  superior 
court  in  compliance  with  the  terms  of  the 
submission,  and  is  still  pending  therein, 
without  entry  of  judgment  thereon,  is  no 
bar  to  an  action  by  him  for  the  same  injury 
against  the  company  in  whose  car  he  was 
riding,  although  the  costs  of  the  arbitration 
have  been   paid   by  the  company  against 


whom  the  award  was  made.     ToJil  v.  Old 
Colony  &^  F.  R.  R.  Co.,  3  Allen  {Mass.)  18. 

Where  a  building  fronts  <m  two  streets,  a 
recovery  by  the  owner  against  one  elevated 
railway  company  fur  operating  a  road  in 
one  street  is  not  a  bar  ti>  a  further  recovery 
against  another  road  that  is  operated  in 
the  other  street,  although  the  latter  road  is 
leased  and  operated  by  the  former.  Ameri- 
can Hank  Xote  Co.  v.  Metropolitan  El.  R. 
Co.,  45  A'.  )'.  S.  R.  332,  63  /l/tn  506,  18  A'. 
1'.  Supp.  532. 

A  collision  at  a  street  crossing  having 
resulted  in  the  death  of  the  plaintitT's  intes- 
tate and  his  two  horses,  and  the  destruc- 
tion of  his  wagon,  an  action  under  ^$6134 
and  6135,  R.  S.  of  Oliio,  to  recover  damages 
for  the  death  of  the  intestate,  is  not  barred 
by  a  former  recovery,  by  the  plaintitT  in 
another  suit,  of  damages  for  the  loss  of  the 
horses  and  wagon.  Peake  v.  lialtimore  i5^ 
O,  R.  Co.,  24  „•//;/.  iT*-  Enjr.  R.  Cas.  467,  26 
Eetl.  Rep.  495. 

A  judgment  against  a  railroad  agent  for  a 
fraud  committed  in  collecting  bogus  freight 
charges  while  acting  within  the  scope  of  his 
agency,  on  which  judgment  no  collection  or 
payment  has  been  made,  is  no  bar  to  an 
action  against  the  principal  for  the  same 
fraud.  In  such  a  case  the  fact  |that  the 
principal  was  wholly  ignorant  of  tie  fraud 
is  inimaterial.  Maple  v.  Cincinnati,  //.  &^ 
D.  R.  Co.,  15  Am.  «S-  Eng.  R,  Cas.  94.  40 
0/iio  St.  313.  48  Am.  Rep.  685. 

Where  a  case  has  been  tried  upon  its 
merits  and  a  verdict  and  judgment  entered 
for  plaintifl.  and  afterwards  on  error  the 
judgment  is  reversed,  but  nn  venire  facias 
tie  mn'o  is  awarded,  that  judgment  of  rever- 
sal constitutes  no  bar  to  another  suit  for  tin- 
same  cause  of  action.  Fries  v,  Fenn^l- 
vania  R.  Co.,<)'AJ'a.  St.  142. — ExPl.AlNlNC 
Gibbs  V.  Bartlett,  2  WwXli  c"it  S.  (Pa.)  29. 

A  judgment  in  favor  of  the  defendant  in 
a  suit  brought  by  husband  and  wife  is  or- 
dinarily no  bar  to  a  suit  brfui-^ht  by  the 
husband  alone,  nor  are  depositioris  taken  in 
the  first  suit  admissible  as  evidence  in  the 
other.  I.ouisvill,'  &*  N.  R.  Co.  v.  Atkins.  2 
Lea  ( Tenn.)  248. 

Acquittal  of  the  railroad  company  of  the 
criminal  charge  of  maintaining  a  nuisance 
in  the  public  road  at  its  crossing  is  not 
available  as  res  jmiicita  in  a  suit  by  »he 
ccunty  to  recover  of  the  railroad  company 
the  costs  of  removing  the  ol)structi()ii  con- 
stituting   the    nuisance.      Dver    Coitntv   v. 


JUDGMENT;   DECKEli,  17. 


89 


Clwutpeak.',  O.  &*  S.  W.  h\  Co..  38  Aui.  &* 
AV/^'.  A'.   Las.  676.87    Tenn.  712,  11  S.  IF. 

/.'A  943- 

c)  I/i'nstrations.—  \  city  passed  an  ordi- 
nance ({raiitinij  a  street  railway  company 
tlie  rijjlit  to  own  and  operate  its  road  be- 
yond the  corporate  life  of  the  company. 
Siil)scqiicntly  the  city  instituted  a  proceed- 
in^,^  before  the  CDrporate  existence  of  tlie 
company  liad  expired,  to  compel  it  to  pay 
certain  taxes  not  fixed  by  ordinance,  and  a 
jnrlninent  was  entered  to  tlie  effect  that  the 
citv  hail  the  power  to  fix  the  amount  of  the 
taxes  and  bind  itself  as  by  contract.  Hflil, 
that  the  question  of  the  validity  of  the  con- 
tract for  the  entire  time  of  the  corporate 
existence  was  not  res  judicata  in  a  subse- 
quent suit  to  compel  the  company  to 
remove  its  tracks  from  the  street  after  the 
full  limit  of  its  corporate  existence.  Ihlroit 
V.  Ditroit  City  A'.  Co..  56  /•"<•</.  A'ffi.  867. 

A  railroad  company,  without  obtaining; 
any  leave  and  without  instituting;  condem- 
nation proceeding's,  constructed  its  railroad 
over  a  public  street  on  which  its  premises 
abutted.  A.  sued  and  ({ot  judgment.  Sub- 
sequently he  brought  suit  to  recover  dam- 
ages for  the  continuance  of  tlie  obstruction. 
//('/./,  that  the  judgment  in  the  former  suit 
was  no  bar  to  a  judgment  in  the  latter  one. 
Sen  ft  v.  /luiianapolis  &^  F.  A*.  Co.,  (/«</.)  10 
Am.  &>  Eng.  li.  Cas.  189. 

The  plaintiff  was  entitled  in  such  case  to 
prove  and  recover  the  diminution  in  rental 
value  of  his  premises,  notwithstanding  the 
fact  that  he  himself  continued  to  occupy 
the  same.  Scott  v.  htdianapolis  &*  F.  A'. 
Co.,  {hid.)  10  Am.  &*  Eiig.  A'.  Cas.  189. — 
Kkc().ncii,in(;  Hatfield  v.  Central  R.  Co., 
33  N.  J.  L.25.. 

Evidence  on  the  part  of  plaintilT  as  to 
certain  plans  for  the  improvement  of  his 
property  adopted  prior  to  the  location  of 
:lic  lailroail  and  afterwards  abandoned — 
/if/d.  inadmissible.  Scott  v.  Indianapolis 
is*  v.  R.  Co..  (Ind.)  10  .,•/;//.  &*  Eng.  R.  Cas. 
189. 

An  action  to  enjoin  the  auditor  of  a 
county  from  collection  of  a  tax  assessed 
upon  railroad  lands  on  the  ground  of  exemp- 
tion was,  on  ajjpeal,  remanded  with  instruc- 
tions to  return  a  judgment  for  the  plaintiff 
if  a  certain  contract  was  found  as  matter  of 
fact  to  have  been  intended  as  a  mortgage. 
On  .1  second  trial,  the  court  so  found  ..nd 
granted  the  injunction.  A  second  action 
was  thereafter  raised  against  the  auditor  of 


another- county  to  enjoin  the  collection  of 
the  tax  levied  in  that  county.  //<■/«/,  that 
the  judgment  in  the  first  action  did  not 
operate  as  res  judicata  in  the  second  suit, 
and  that  the  defendant  in  the  latter  was  not 
estop|>ed  from  litigating  the  case  on  its 
merits,  although  both  defendants  were  in  a 
certain  sense  acting  r>n  behalf  of  the  public. 
St.  /'au/  tS-  S.  C.  A'.  Co,  v.  A'ofiinson,  39  Am. 
(S-  Eng.  A'.  Cos.  502,  40  Minn.  360,42  i\'.  IF, 
A'cp.  79. 

The  assignee  of  a  railroad  company 
which  had  appropriated  plaintiff's  land  was 
ordered  by  a  court  of  bankruptcy  to  pay 
him  a  fixed  sum  as  damages  upon  receiving 
a  deed  for  the  land  ;  but  he  declined  to 
receive  the  amount  or  to  make  the  deed, 
and  subsequently  brought  an  action  to  re- 
cover damages.  Held,  that  the  order  in 
bankruptcy  was  no  bar  to  liis  recovery. 
Humes  v.  St.  Louis.  A'.  C.  »I^»  iV.  A'.  Co..  71 
A/o.  163. 

Plaintiff  purchased  a  passenger  ticket  on 
defendant's  road  which  entitled  him  to 
carry  a  certain  amount  of  baggage.  He  had 
a  packing-box  or  trunk  containing  merchan- 
dise. Upon  applying  for  a  check,  he  ad- 
vised defendant's  agent  of  this  fact,  who 
thereupon  refused  to  check  the  trunk  unless 
extra  compensation  was  paid  for  its  trans- 
portation ;  plaintiff  paid  the  sum  charged ; 
the  trunk  was  destroyed  by  fire.  In  a  prior 
action  brought  to  recover  for  the  loss  of 
baggage,  the  court  ruled  that  plaintiff  could 
not  recover  for  the  merchandise,  as  it  was 
not  baggage,  and  a  recovery  was  had  for 
the  baggage.  In  an  action  brought  to  re- 
cover for  the  merchandise— ^/-A/,  that  the 
former  action  was  not  a  bar,  as  the  two 
actions  were  not  for  parts  of  one  entire  in- 
divisible demand,  but  were  based  upon 
separate  contracts.  Millard  v.  Missouri,  A'. 
&^  T.  R.  Co..  6  Am.  &"  Eng.  R.  Cas.  31 1,  86 
X.  r.  441  ;  affirming  20  Hun  191.  —  DiSAl'- 
I'ROVKIJ  IN  Humphreys  7A  Perry.  148  U.S. 
627. 

An  agreement  was  made  between  three 
elevated  railroads  by  which  the  roads  of  two 
companies  were  to  be  leased  for  a  long  term 
of  years  to  the  third  company.  The  lease 
provided  for  the  payment  of  a  rental  etpial 
toa  dividend  at  a  certain  rate  upon  the  stock 
of  the  lessors.  Owing  to  the  financial  em- 
barrassment of  the  lessee,  an  agreement  was 
made  which  modified  and  altered  the  lease, 
and  provided  for  the  payment  of  w  smaller 
rental.     Subsequently   one    of  the  comia- 


^, 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


1.1 


^  122   12.2 


6" 


I^iolographic 

Sdenoes 

Carporation 


as  WIST  MAIN  STRIIT 

WnSTIR,N.Y.  14SM 

(71«)  171-4503 


90 


JUDGMENT;   DECREE,  18. 


nies  instituted  a  suit  to  set  aside  the  agree- 
ment modifying  the  lease  and  judgment  was 
■  rendered  in  its  favor.  Thereafter  a  stocli- 
holder  in  one  of  the  companies  brouglit  an 
action  against  the  company  whose  stock  he 
iield  and  the  lessee  to  enforce  payment  of 
the  guaranteed  dividend  under  tiic  lease. 
Held,  that  the  judgment  in  the  suit  insti- 
tuted by  the  company  was  not  res  judi- 
cata as  to  any  claim  by  the  stockholder 
against  the  company  in  which  he  held 
stock,  lieveridge  v.  New  York  /  .'C.  Co., 
39  Am.  &*  Enif.  R.  Cas.  199,  ii2  .<v'.  K.  i,  19 
N.  E.  Rep.  489,  20  A'.  Y.  S.  R.  gC  a  firm- 
ing 42  Hun  656,  5  N.  Y.  S.  R.  59.  -D' s- 
TINGUISHING  Boardman?^  Lake  She,  '  .T 
S.  R.  Co.,  84  N.  Y.  157  ;  Earr  v.  Ne\.  <,:k, 
L.  E.  &  W.  R.  Co.,  96  N.  Y.  .444. 

An  abutting  owner  sued  an  elevated  rail- 
way for  damages  for  maintaining  its  road  in 
the  street  and  recovered  a  judgment  cover- 
ing about  three  years,  which  fixed  his  dam- 
ages at  $300  per  year ;  and  subsequently 
brought  an  action  to  recover  damages  for  a 
like  cause  for  several  succeeding  years. 
Held,  that  the  amount  of  damages  fixed  by 
the  judgment  in  the  former  suit  was  not 
conclusive  as  to  the  amount  recoverable  in 
the  second  suit.  Moore  v.  New  York  El.  R. 
Co.,  27  J.  &^  S.  32,  36  A^.  Y.  S.  A'.  81,  12  N. 
Y.  Supp.  552;  reversed  in  126  N.  Y.  671, 
tJfein.,  27  A'.  E.  Rep.  791,  37  A'.  F.  S.  R.  777. 

Certain  individuals  engaged  in  manufac- 
turing, leased  grounds  to  a  railroad  for  the 
purpose  of  constructing  a  side  track  there- 
on. Afterwards  two  suits  were  brought 
against  the  company,  growing  out  of  the 
lease,  one  in  assumpsit  and  the  other  in 
trespass.  The  action  in  assumpsit  was  for 
an  unpaid  consideration  for  the  lease  and 
for  appropriating  lands  not  included  in  the 
lease.  The  action  of  trespass  was  for  not 
constructing  a  side  track  according  to  con- 
tract. Held,  that  a  judgment  in  the  action 
of  assumpsit  was  not  a  bar  to  the  action  of 
trespass.  Middletown  Furniture  Mfg.  Co. 
V.  Philadelphia  &*  R.  R.  Co.,  145  Pa.  St. 
187,  22  At  I.  Rep.  748. 

18.  Effect  of  jii(l};mciit  as  to  tliird 
persons,  not  parties  to  former  suit.— 
(I)  General  rules. — Where  a  railroad  com- 
pany is  sued  for  an  injury  resulting  through 
the  alleged  negligence  of  one  of  its  engi- 
neers in  failing  to  sound  a  whistle  or  ring  a 
bell  at  a  place  where  the  statute  required  it, 
a  verdict  finding  the  company  free  from 
negligence  would   seem  to  bar  a  recovery 


in  an  action  against  the  engineer.  Chicago 
&^  R.  I.  R.  Co.  V.  Hut  chins,  34  ///.  108. 

A  decree  in  a  suit  on  coupons  from 
municipial  bonds  issued  for  railroad  stock  is 
not  binding  on  those  who  were  not  served 
with  process  and  did  not  appear,  nor  on  non- 
resident bondholders,  who  were  only  pro- 
ceeded against  by  constructive  service. 
Brooklyn  v.  ^Etna  L.  Ins.  Co.,  99  U.  S.  362. 
Pana  v.  Bowler,  12  Am.  &•  Eng.  R.  Cas. 
563,  107  U.  S.  529,  2  Sup.  Ct.  Rep.  704. 

A  former  mandamus  proceeding  against 
certain  officers  of  a  corporation  to  allow  a 
stockholder  to  inspect  its  books  is  not  a  l)ar 
to  a  subsequent  mandamus  against  the  cor- 
poration itself.  State  ex  rel.  v.  St.  Louis  &• 
S.  F.  R.  Co.,  29  1.1  o.  App.  301. 

In  a  suit  against  a  company  by  an  assignee 
of  labor  claims,  the  contractor  and  subcon- 
tractor are  necessary  parties.  If  they  are 
not  made  parties,  a  judgment  rendered 
against  the  company  would  be  no  bar  to  a 
subsequent  suit  by  the  subcontractor  against 
the  contractor  or  the  railway  company.  In 
all  such  actions  the  judgment  rendered 
should  be  binding  upon  the  company,  the 
contractor,  the  subcontractor,  and  the  la- 
borer alike.  Austin  &•  N.  IV.  R.  Co.  v. 
Rucker,  12  Am.  »5-»  Eng.  R.  Cai.  258,  59 
Tex.  587. 

Where  surviving  children  bring  an  action 
against  a  railroad  company  for  negligently 
causing  the  death  of  their  mother,  they  are 
not  concluded  by  a  judgment  in  a  separate 
suit  brought  by  their  father  to  which  they 
are  not  parties.  Galveston,  H.  &•  S.  A.  R. 
Co.  v.  Kutac,  72  Tex.  643,  1 1  S.  IV.  Rep.  127. 

(2)  Illustrations.  —  After  an  action  had 
been  commenced  in  the  name  of  the  people 
to  dissolve  a  railroad  corporation,  and  a 
temporary  receiver  had  been  appointed,  a 
foreclosure  suit  was  commenced  and  the 
receiver  in  the  former  action  was  appointed 
temporary  receiver  in  the  other  action. 
The  corporation  was  the  owner  oi  certain 
stocks  and  bonds  not  in  terms  covered  by 
the  mortgage;  and  an  order  was  made, 
after  notice,  in  the  foreclosure  suit  that  the 
receiver  should  hold  and  deal  with  the 
stocks  and  bonds  as  a  part  of  the  general 
fund  embraced  in  the  mortgage ;  and  by 
a  subsequent  judgment  it  was  determined 
that  they  were  subject  to  the  mortgage,  and 
were  ordered  to  be  sold  as  a  part  of  the 
mortgaged  property,  and  the  sale  was  matlc 
and  confirmed.  Held,  that  the  adjudica- 
tions so  made  bound  all  the  parties  to  thv. 


f?A 


JUDGMENT;    DECREE,  19. 


91 


action,  and  neither  the  corporation  nor  its 
general  creditors  could  impeach  them  in 
collateral  proceedings.  (Finch  and  Peck- 
ham,  JJ.,  dissenting.)  Herring  v.  Nnv  York, 
L.  E.  *5-  W.  R.  Co.,  35  Am.  &>  Eiig.  R.  Cas. 
54,  105  iV.  y.  340,  19  A66.  N.  Cas.  340,  12  ^V. 
E.  Rep.  763.  7  ^-  y-  S.  R.  547 ;  affirming 
34  Hun  634,  mem.,  63  How.  Pr.  497. — FoL- 
i.owKi)  IN  Farmers'  L.  &  T.  Co.  v.  New 
Rochelle  &  P.  R.  Co..  32  N.  Y.  S.  R.  714.  57 
Hun  376,  10  N.  Y.  Supp.  810. 

A  bondholder  instituted  a  proceeding  to 
foreclose  a  railroad  mortgage  executed  to 
secure  its  bonds,  on  behalf  of  himself  and 
:ill  others  similarly  situated ;  and  also  prayed, 
amoiiji;  other  things,  that  a  judgment  ob- 
tained in  a  somewhat  similar  proceeding  be 
;i(ljiid},'ed  fraudulent,  and  that  the  lien  which 
plaintiff  sought  to  enforce  be  given  priority, 
Hdd.  that  the  judgment  in  the  former  suit 
was  conclusive,  if  the  suit  was  representa- 
tive and  fairly  brought,  and  conducted  for 
the  benefit  of  all  bondholders;  but  if  it  was 
brought  for  the  purpose  of  obtaining  a 
fraudulent  advantage,  then  plaintiff  was  not 
bound  thereby.  Stevens  \.  Union  Trust  Co., 
57  Hun  498,  33  A^.    Y.  S.  R.  1 30. 

An  abutting  property  owner  brought  a 
suit  against  an  elevated  railway  company 
for  equitable  relief  and  to  recover  damages 
for  interfering  with  his  street  easenients, 
and  obtained  a  perpetual  injunction  with  a 
provision  that  it  should  be  avoided  by  pay- 
ment or  tender  of  specified  damages,  and 
the  execution  by  plaintiff  of  a  release.  Sub- 
sequently the  company  moved  to  set  aside 
tiie  judgment  on  the  ground  that  plaintiff, 
after  the  trial  and  before  judgment,  had 
conveyed  the  fee  to  the  property,  and  that 
his  grantees  refused  to  execute  a  release. 
HM,  that  the  pendency  of  the  action  acted 
as  a  /is  pendens  and  bound  the  grantees  the 
same  as  if  they  had  been  parties;  therefore 
a  release  by  plaintiff  was  sufficient.  Jl/oss 
V.  AWt'  Yori'  Ei.  R.  Co.,  27  Abb.  N.  Cas. 
318,  17  A".   Y.  Supp.  586. 

Where  two  brothers,  both  minors  and 
living  with  their  father,  were  killed  at  a 
railroad  crossing  by  a  passenger  train  col- 
liding with  the  wagon  in  which  they  were, 
and  the  father  took  out  letters  of  iidminis- 
tration  upon  the  estates  of  each  of  his  said 
sons,  and  brought  separate  actions,  in  his 
ivpresentative  capacity,  against  the  com- 
pany operating  the  train  which  collided 
with  the  wagon,  the  declarations  in  the 
cases  being  precisely  the  same,  except  as  to 


the  names  of  the  intestates— ^^/</,  that  a 
judgment  in  favor  of  the  plaintiff  and 
against  the  defendant  in  one  case  was  no 
bar  to  the  further  prosecution  of  the  other 
action  as  the  plaintiffs  in  the  two  suits 
were  not  the  same  persons  in  law,  and  be- 
cause the  evidence  in  the  two  cases  was  not 
the  same  in  respect  to  the  killing  and  the 
care  of  each  intestate.  Illinois  C.  R.  Co.  v. 
Slater,  1 39  ///.  1 90,  28  iW.  E.  Rep.  830 ;  af- 
firtning  39  ///.  App.  69. 

19.  Concliisiveuess  of  jiidgineuts 
oil  questions  of  title  to  laud. — In  an 
action  against  a  company  to  quiet  title  to 
land  used  as  a  right  of  way,  an  easement 
claimed  by  the  defendant  will  be  cut  off  by 
a  decree  in  the  plaintiff's  favor,  unless  it  be 
set  up  and  be  protected  by  the  decree.  In- 
diana, B.  &»  W.  R.  Co.  v.  Allen,  113  Ind. 
308,  15  7V^.  E.  Rep.  451,  12  West.  Rep.  910. 

A  judgment  in  ejectment  against  a  com- 
pany for  land  occupied  by  it  as  a  right  of 
way,  which  it  had  bought  and  paid  for,  is 
no  bar  to  a  bill  for  the  specific  performance 
of  the  contract  to  convey  the  right  of  way. 
It  appeared  that  the  company  was,  at  the 
time  of  the  recovery,  in  ignorance  of  its 
equitable  title,  and  had  used  due  diligence 
in  seeking  to  learn  the  facts,  and  failed  to 
learn  them  until  after  the  time  had  expired 
for  taking  a  new  trial  at  law.  Chicago  &■* 
E.  I.  R.  Co.  v.  Hay,  119  ///.  493,  10  A'.  E. 
Rep.  29.— Followed  in  Chicago  &  E.  I.  R. 
Co.  V.  Hay,  119  111.  507. 

A  judgment  was  entered  in  certain  litiga- 
tion deciding  that  a  company  which  had 
acquired  property  for  railroad  purposes  only 
had  forfeited  all  its  ri;  I'ts  thereto  by  leasing 
it  to  an  individual,  j  eld,  that  this  finding 
would  be  accepted  and  applied  in  a  subse- 
quent action  by  the  owner  of  the  fee  against 
the  lessee  to  recover  possession.  Roby  v. 
Yates,  70  Hun  35,  23  A^.    Y.  Supp.  1 108. 

The  H..  P.  &  F.  R.  Co.,  the  ioad  where 
of  was  mortgaged,  issued  certain  sliares  of 
preferred  stock.  Subsequently  the  company 
defaulted  in  payment  of  interest  on  the 
mortgage,  whereupon  the  directors  voted 
to  surrender  the  road  to  the  mortgage 
trustees,  the  net  earnings  to  be  applied  first 
on  account  of  the  mortgages  in  the  manner 
specified  in  the  mortgage  deed  of  trust,  and 
the  surplus  to  be  applied  to  the  payment 
of  unsecured  creditors.  Subsequently  the 
company  made  a  perpetual  lease  and  grant 
of  its  road  and  franchises  to  the  B.,  H.  &  E. 
Co.,  who  subsequently  conveyed  to  the  B., 


I 

ft 

a 


9;i 


JUDGMENT;   DECREE,  20. 


H.  &  E.  R.  Co.  These  transfers  were  sanc- 
tioned by  legislaiive  enactment.  Subse- 
quently the  B.,  H.  &  E.  R.  Co.  mortgaged 
its  road  and  defaulted  in  payment  of  inter- 
est. The  mortgagees  foreclosed,  bought  in 
at  the  foreclosure  sale,  and  formed  the  N. 
Y.  &  N.  E.  R.  Co.  Tlie  trustees  in  the 
original  mortgage  then  leased  the  road  to 
the  N.  y.  &  N.  E.  R.  Co.  Certain  stock- 
holders of  the  H.,  P.  &  F.  R.  Co.  filed  a  bill 
to  set  aside  the  above  agreement  and  lease 
on  the  ground  of  fraud  and  u//ra  vires. 
The  bill  was  dismissed  on  the  ground  of 
laches.  A  preferred  stockholder  having 
subsequently  filed  another  bill  alleging  that 
the  trustees  in  the  original  mortgage  had 
realized  from  their  lease  more  than  enouuh 
to  pay  the  interest  on  the  mortgage  and 
seeking  to  have  the  surplus  applied  to  ar- 
rears of  dividends  on  preferred  stock — /leld, 
that  in  order  to  establish  his  right  to  relief 
tiie  complainant  was  bound  to  show  that 
the  conveyance  by  the  H.,  P.  &  F.  R.  Co. 
was  void,  and  that,  having  been  a  party 
to  the  former  suit  wherein  that  question 
was  raised  and  adjudicated,  he  was  pre- 
cluded from  again  raising  the  point,  and 
that  the  bill  must  be  dismissed.  Emerson 
V.  New  York  &*  N.  E.  A'.  Co.,  i6  Am.  &^ 
Eng.  R.  Cas.  404,  14  R.  I.  555. — Following 
Boston  &  P.  R.  Corp.  v.  New  York  &  N.  E. 
R.  Co.,  13  R.  I.  260. 

In  an  action  to  remove  a  cloud  upon 
plaintiff's  title  to  certain  lots  and  to  a  road- 
way and  raceway  adjacent  thereto,  it  was 
adjudged  that  plaintifl  had  title  to  the  lots, 
but  had  no  title  to  the  roadway  or  raceway. 
In  a  subsequent  proceeding,  by  one  whose 
title  was  derived  from  the  former  plaintiff, 
for  the  appointment  of  commissioners  to 
appraise  his  damages  by  reason  of  the  lay- 
ing of  railway  tracks  over  said  roadway  and 
racewav  under  a  license  from  the  former  de- 
fenHant — held,  that  the  former  judgment  was 
conclusive  against  the  plaintiff's  claim  of 
title  to  such  roadway  and  raceway.  Smith 
V.  Chicago,  M.  &^  Sf.  P.  R.  Co.,  83  JVis.  271, 
50  A'.  IV.  Rep.  497,  53  A^.  W.  Reft.  550. 

20.  Concliisiveiiess  as  respects 
matters  not  in  issue  on  former  trial. 
—A  judgment  on  certain  railroad  coupons 
is  not  conclusive  in  a  subsequent  suit 
brought  on  other  coupons  cut  from  the 
same  bonds,  where  there  is  nothing  to  show 
whether  the  issues  in  each  suit  were  the 
same  or  not.  Enfield  w.  Jordan,  119  t/.  5. 
680,  7  Sup.  Ct.  Rep,  358. 


The  recovery  by  a  passenger  of  the 
statutory  penalty  for  an  illegal  overcharge 
of  tare  is  no  bar  to  a  suit  for  damages  for 
an  unlawful  ejection  from  the  train.  St. 
Louis  &^  S.  F.  R.  Co.  v.  Trimble,  54  Ark. 
354,  155.   IV.  Rep.  899. 

An  action  against  a  corporation  for  the 
loss  of  goods  as  a  common  carrier,  in  which 
the  company  has  judgment,  is  not  a  bar  to 
a  subsequent  action  against  the  corporation 
as  a  warehouseman  for  the  loss  of  the  same 
goods.  Kronshage  v.  Chicago,  M.  &*  St.  P. 
R.  Co. ,  45  Wis.  500. 

A  railroad  covenanted  with  a  ferry  owner 
to  transport  all  persons  and  property  carried 
j  ■\  river  across  in  the  ferry.  A  suit  was 
cfterwards  brought  against  the  railroad  for 
diverting  freights  from  the  ferry,  and  on 
demurrer  final  judgment  was  given  for  the 
company,  on  the  ground  of  a  variance  be- 
tween the  contract  and  the  breach  alleged  in 
the  declaration.  Held,  that  this  judgment 
was  a  bar  to  a  subsequent  suit  only  as  to 
the  exact  point  raised  by  the  pleadings, 
and  not  a  bar  to  a  suit  for  other  breaches  of 
the  same  covenants.  IViggins  Ferry  Co.  v. 
Ohio  &*  M.  R.  Co.,  52  Am.  &•  Eng.  R.  Cas. 
82,  142  If.  S.  396.  12  Sup.  Ct.  Rep.  188. 

A  mare  and  colt,  belonging  to  the  same 
person,  entered  upon  a  railroad  track  at  the 
same  time  and  place,  and,  both  running  be- 
fore a  train,  the  colt  was  first  struck  and 
killed,  and  then  the  mare  was  struck  and 
injured,  at  a  point  thirty  rods  from  where 
the  colt  was  struck.  An  action  was  brought 
against  the  company  for  the  value  of  the 
colt,  and  a  judgment  was  recovered  for  its 
value,  reasonable  attorney's  fees,  and  costs, 
which  were  paid.  The  mare  subsequently 
died  from  the  injuries  received,  and  an 
action  was  brought  for  the  value  of  the 
mare,  and  the  satisfaction  of  the  judgment 
for  the  value  of  the  colt  was  pleaded  in  bar 
of  the  second  action.  Neld,  that  they  were 
separate  and  independent  causes  of  action, 
and  that  the  first  judgment  and  satisfaction 
did  not  bar  a  recovery  in  the  second  action. 
Missouri  Pac.  R.  Co.  v.  Scammon,  41  Kan. 
521,  21  Pac.  Rep.  590. 

Where,  in  an  action  brought  under  the 
act  of  1 88 1  (ch.  531.  N.  Y.  Laws  of  188 1)  by 
taxpayers  of  the  town  of  A.  against  certain 
holders  of  bonds  of  the  town,  issued  in  aid 
of  the  construction  of  the  D.  &  M.  railroad, 
it  appeared  that  after  its  commencement  an 
action  was  brought  ostensibly  in  the  name 
of  a  bondholder  against  the  town  to  recover 


I        ^        IMIIIIIIJIIIIJIJIP^IIIII  Ifj 


JUDGMENT;   DECREE,  21. 


03 


interest  on  certain  of  said  bonds,  in  which 
it  was  decided  that  said  bonds  were  void 
(93  N.  Y.  405),  but  it  also  appeared  tliat 
said  action  was  brouglit  at  the  instance  of 
iliL-  supervisor  of  said  town,  that  the  inter- 
est coupons  on  which  it  was  brought  were 
paid  for  out  of  the  moneys  of  said  town, 
tiiat  the  attorneys  wlio  prosecuted  and  de- 
fended the  action  were  paid  by  the  town,  as 
were  all  other  expenses,  and  that  tiie  action 
was  brought  and  defended  for  the  purpose 
of  having  said  bond  declared  invalid.  Held, 
that  the  adjudication  in  the  former  action 
was  an  estoppel  only  as  between  the  parties 
thereto,  and  did  not  stand  in  the  way  of  a 
re-examination  by  the  court  of  the  grounds 
upon  which  it  proceeded,  or  prevent  it  from 
considering  new  facts  not  disclosed  in  the 
otlier  action  which  would,  if  Ihen  disclosed, 
have  led  to  a  different  result.  Calhoun  v. 
Millard,  \zi  N.  Y.  69,  24  N.  E.  Rep.  27,  30 
A',  v.  S.  A'.  759.— Following  Craig  v. 
Andes,  93  N.  Y.  405.  Referring  to  Metz- 
gerz/.  Attica  &  A.  R.  Co..  79  N.  Y.  17' 

Four  bales  of  cotton  were  delivered  to  a 
railroad  company  at  the  same  time,  two  of 
which  were  burned  before  being  loaded  on 
the  cars,  and  two  months  afterwards  the 
company  shipped  the  other  two  bales  to  its 
agent  at  the  place  of  destination,  instead  of 
to  the  agent  of  the  shipper.  Held,  that  the 
destruction  of  the  first  two  bales  constituted 
a  distinct  cause  of  action,  and  the  shipping 
of  the  other  two  to  the  wrong  person 
amounted  to  a  conversion  and  gave  another 
cause  of  action,  and  a  judgment  for  the 
former  was  not  a  bar  to  a  suit  for  the  latter. 
Houston  &*  T.  C.  A'.  Co.  v.  Perkins,  2  Tex. 
App.  (Civ.  Cas.)  467. 

21. matters  uotafljHdicateil  in 

former  action.— To  sustain  a  plea  of  r« 
judicata,  there  must  be  evidence  to  show 
that  the  matters  in  issue  and  decided  in  the 
first  suit  are  the  same  as  those  presented 
for  determination  in  the  second.  Spurlock 
V.  Missouri  Pac.  A\  Co.,  76  Afo.  67. 

A  former  judgment  in  favor  of  a  railroad 
company  against  the  validity  of  taxes,  on 
the  ground  that  the  property  was  exempt 
from  taxation,  will  not  bar  a  suit  for  taxes 
accruing  later  and  constituting  a  separate 
and  distinct  cause  of  action.  State  ex  rel. 
V.  Keokuk  <S-  W.  R.  Co.,  41  Am.  &^  Eng.  R. 
Cas.  694,  99  A/a.  30,  6  L.  R.  A.  222,  12  S. 
^.  Rep.  290.— Approving  Davenport  v. 
Chicago,  R.  I,  &  P.  R.  Co.,  38  Iowa  633. 

Nor  will  the  proposition  that  the  legisla- 


ture can,  in  the  face  of  the  constitution  of 
1865,  exempt  property  from  such  taxation 
bar  such  suit  because  of  a  concessic-n  to 
that  effect  made  by  counsel  in  some  other 
case.  .State  ex  rel.  v.  Keokuk  &->  \V.  R.  Co., 
41  Am.  &^  Ena;.  R.  Ciis.  694,  99  Afo.  30,  6  L. 
R.  A.  222,  12  S.  W.  Rep.  290. 

Where  a  receiver  of  a  railroad  company, 
appointed  and  acting  under  the  direction 
of  the  circuit  court  of  the  United  States,  in 
1877  filed  a  bill  in  the  circuit  court  of  I^eoria 
county  to  enjoin  the  collection  of  the  taxes 
levied  upon  the  capital  stock  of  the  com- 
pany for  the  years  1873,  1874,  and  1875, 
which,  on  a  hearing,  was  dismissed — /le' 
that  the  decree  in  such  case  was  no  bar 
another  bill  filed  by  the  purchasers  of  the 
railroad  and  its  property,  under  a  deed  of 
trust,  and'  whose  title  was  acquired  louLf 
after  tlie  fding  of  the  first  bill,  to  enjoin  the 
collection  of  tlie  same  taxes  by  the  sale  of 
the  rolling  stock  of  the  railroad  company 
after  its  purchase,  such  purchasers  imt 
claiming  under  the  receiver,  for  the  reasons 
that  neither  the  parties  nor  the  subject 
matter  are  the  same.  The  latter  bill  pre- 
sented the  question  that  the  purchasers  ac- 
quired the  property,  by  their  purchase,  free 
and  clear  c  the  taxes,  which  was  not  liti- 
gated in  the  former  suit.  Cooper  v,  Corbin, 
13  Am.  &■*  Eng.  R.  Cas.  394,  105  ///.  224. 

Where  a  railroad  company  had  agreed  to 
put  in  a  switch,  build  a  side  track  and  keep 
the  same  in  repair,  and  to  run  its  cars  regu- 
larly thereon  to  any  warehouse  that  might 
be  built  by  the  plaintiff,  for  the  purpose  of 
receiving  or  discharging  grain — keld,  that 
the  adjudication  of  a  former  action  to  re- 
cover damages  for  a  refusal  on  the  part  of 
the  company  to  receive  a  car-load  of  freight, 
would  not  be  a  bar  to  an  action  to  recover 
damages  for  a  subsequent  total  abandon- 
ment of  the  side  track,  unless  such  refusal 
to  receive  was  intended  as  a  final  abandon- 
ment of  the  contract,  and  that  fact  was 
known  to  the  plaintiff  when  he  commenced 
his  former  action.  Ainsden  v.  Dubuque  <S>» 
S.  C.  R.  Co.,  32  /o7t'a  288,  10  Aw.  Ry.  Rep.  9. 

Partners  owning  a  building  brought  a 
joint  action  against  an  elevated  railway 
company  for  unlawful  interference  with 
their  street  easements  and  recovered  dam- 
ages. Held,  that  this  was  not  a  bar  to  a 
subsequent  action  by  one  of  the  partners, 
claiming  damages  for  personal  injuries  "  by 
reason  of  the  noise  caused  by  operating  de- 
fendant's road,  and   the  smoke,  dust  and 


I 


94 


JUDGMENT;   DECREE,  22. 


dirt,  stench  and  gas,  and  vapor  of  steam 
arising  therefrom  "  entering  the  same  build- 
ing where  he  did  business,  and  causing  him 
much  personal  discomfort  and  loss  of  health, 
Taylor  v.  Manhattan  R.  Co.,  25  A^  Y.  S.  li. 
226,  53  Hun  305,  6  A^.  y.  Supp.  488. 

22.  matters  wliicli  could  have 

been  a<ljii(licatcMl.— Where  a  railway 
company,  under  authority  of  law,  properly 
constructs  a  bridge  over  a  watercourse,  and 
suit  is  brought  by  the  landowner  for  dam- 
ages thereby  caused  to  his  property,  and  a 
judgment  is  recovered  and  paid,  it  will  be 
regarded  as  in  full  for  all  future  as  well  as 
past  damages,  and  a  bar  to  a  second  suit  for 
subsequent  damages  arising  from  the  same 
cause.  Chicago,  B.  &*  Q.  A'.  Co.  v.  Schaffer, 
31  Am.  &•  Eng.  R.  Cas.  174,  124  ///.  112,  14 
U'fst.  Hep.  139,  xdN.E.Kcp.  239;  affirm- 
ing 26  ///.  App.  280.— Applied  in  Ohio  & 
M.  R.  Co.  V.  Thillman,  143  111.  127. 
Quoted  in  Ohio  &  M.  R.  Co.  v.  Thillman, 
43  111.  App.  78. 

Where  a  company  erects  an  embankment 
so  as  to  throw  a  stream  of  water  back  on 
plaintiff's  land,  the  injury  caused  thereby  is 
a  permanent  one,  for  which  damages  might 
be  at  once  fully  recovered ;  and  where  one 
action  is  brought  and  a  recovery  had,  the 
fact  that  the  jury  were  erroneously  instructed 
not  to  take  into  account  any  future  injury 
would  not  allow  plaintiff  to  maintain  a  sec- 
ond action  to  adjudicate  questions  that 
should  have  been  tried  in  the  former  one. 
Stodghill  V.  Chicago^  B.  &*  Q.  R.  Co.,  53 
Iowa  341,  5  A^.  IV.  Rep.  495.  Fo^vle  v.  jWiu 
Ha7ien  &> iV.  Co.,  107  Mass.  352.— Followed 
IN  Baltimore  &  P.  R.  Co.  v.  Fifth  Baptist 
Church,  137  U.  S.  568.  Reviewed  in  Wells 
V.  New  Haven  &  N.  Co.,  44  Am.  &  Eng.  R. 
Cas.  491 , 1 5 1  Mass.  46. — Fowle  v.  New  Haven 
&•  N.  Co.,  112  Mass.  334. — Approved  in 
Rosenthal  v.  Taylor,  B.  &  H.  R.  Co.,  79  Tex. 

325. 

When  a  railroad  bridge  became  a  per- 
manent embankment,  thereby  diverting  a 
watercourse  and  flooding  plaintiflf's  land  and 
destroying  his  crops,  and  permanently  in- 
juring his  lands,  plaintiff's  right  of  action 
for  all  damages,  present  and  prospective, 
became  complete,  and  as  he  elected  to  sue 
for  the  three  crops  injured  before  the  bridge 
became  a  permanent  embankment,  his  re- 
covery therefor  would  bar  an  action  for  the 
injury  to  the  inheritance.  Bunten  v.  Chi- 
cago, R.  I.  &*  P.  R.  Co.,  50  Mo.  App.  414. 

A  judgment  against  a  railroad  company 


for  damages  for  tiie  destruction  of  a  build- 
ing by  fire  communicated  from  a  locomotive 
engine  is  a  bar  to  a  subsequent  action  by 
the  same  plaintiff  against  the  company  for 
damages  for  the  destruction  of  other  build- 
ings by  fire  communicated  from  the  builo- 
ings  first  destroyed,  although  the  subsequent 
action  is  brought  and  prosecuted  for  the 
benefit  of  an  insurance  company  which  has 
paid  to  the  plaintiff  the  amount  of  a  policy 
of  insurance  upon  such  other  buildings. 
Trask  v.  Hartford  &*  N.  H.  R.  Co.,  2  Allen 
(Mass.)  331. — Followed  in  Knowlton  v. 
New  York  &  N.  E.  R.  Co.,  40  Am.  &  Eng. 
R.  Cas.  237,  147  Mass.  606. 

A  person  whose  house  and  furniture  is 
burned  through  the  negligence  '  a  railroad 
company  is  entitled  to  reco.jr  the  full 
amount  of  his  loss,  notwithstanding  an  in- 
surance company  has  paid  insurance  there- 
on ;  bu  •  if  such  person,  by  mistake,  deducts 
from  his  claim  in  a  suit  the  amount  of  the 
insurance  money,  the  judgment  will  bar  a 
further  recovery.  Weber  v.  Morris  <S-  E. 
R.  Co.,  36  N.  J.  L.  213,  12  Am.  Ry.  Rep. 
411. 

Where  a  railroad  engineer  sues  his  com- 
pany to  recover  for  personal  injuries,  and 
one  recovery  has  been  had,  no  further  re- 
covery can  be  had  by  setting  up  other  mat- 
ters than  those  formerly  alleged  as  having 
caused  the  injuries.  Davis  v.  New  York,  L. 
E.  &"  IV.  R.  Co.,  14  A^.  Y.  S.  R.  i. 

Where  a  number  of  sacks  of  flour  carried 
by  a  railway  company  are  damaged,  the  en- 
tire injury  constitutes  one  cause  of  action, 
and  after  a  recovery  is  had  for  injury  to 
some  of  the  sacks  a  second  action  is  not 
maintainable  for.  injury  to  the  remainder. 
Russell  \.  Waterford  &*  L.  R.  Co.,  L.  R.  16 
Ir.  314. 

In  1869  T.  mortgaged  to  B.  In  187 1,  the 
mortgagor  being  still  in  possession,  but  the 
mortgage  overdue,  the  E.  C.  R.  R.  Co.,  un- 
der some  arrangement  with  the  mortgagor, 
constructed  its  road  across  the  premises. 
In  1880  the  petitioner  succeeded  to  the 
rights  of  the  E.  C.  R.  R.  Co.  In  1864  H. 
was  in  adverse  possession  of  a  portion  of 
the  premises,  and  continued  in  such  posses- 
sion until  he  acquired  title,  which  title  he 
conveyed  to  the  E.  C.  R.  R.  Co.  before  the 
petitioner  succeeded  to  its  rights.  In  1883 
the  defendant  became  the  owner  of  this 
mortgage,  foreclosed  it  against  the  mort- 
gagor and  the  petitioner,  and  was  put  in 
possession,  by  virtue  of  a  writ  of  posses- 


JUDGMENT;    DECREE,  23-20. 


95 


sion,  in  1886.  Thereupon  the  petitioner 
brought  this  bill  to  condemn  the  land.  //eM, 
that  the  petitioner  was  estopped  from  set- 
ting up  in  this  suit  tlie  title  derived  from 
H.,  as  that  question  might  have  been  ad- 
judicated in  the  foreclosure  suit.  St.  Johns- 
bury  &>  L.  C.  A'.  Co.  V.  Wt Hard,  61  Vt.  134, 
zL.R.A.  S2?,i7  Atl.Jifp.zi. 

In  case  a^  ainst  defendants  as  common 
carriers,  defendants  pleaded  that  plaintilT 
sued  defendants  in  the  queen's  bench  for 
the  same  identical  causes  of  action  and  ob- 
tained a  verdict,  which  remained  unreversed, 
to  which  plaintiff  replied,  denying  that  the 
verdict  was  for  the  same  identical  causes  of 
action.  Held,  that  if  plaintiff  could  have 
given  evidence  at  a  former  trial  of  the  self- 
same matters  which  he  subsequently  sued 
for,  but  withheld  it  altogether,  he  was  not 
absolutely  barred  from  recovering  after- 
wards. Deacon  v.  Great  IVestern  A'.  Co.,  6 
U.  C.  C.  p.  241. 

23.  Conclusiveness  of  ju(l{;nieifts 
of  courts  of  co-orilinatejurlstliction, 
gencrivlly. — Where  a  stockholder  sues  to 
recover  dividends  under  a  lease  of  the  road, 
and  it  appears  that  another  court  has  de- 
cided that  the  right  of  action  tc  recover 
such  dividends  is  in  the  corporation,  and 
not  in  the  stockholders,  such  decision  will 
be  followed  on  the  principle  that  a  judg- 
ment of  a  co-ordinate  court  will  be  followed 
when  not  reversed.  Reed  v.  Atlantic  Sf  P. 
R.  Co.,  21  Fed.  Rep.  283. — Approving  Good- 
year Dental  Vulcanite  Co.  v.  Willis,  i  Ban. 
&  A.  573. 

24. of  foreigrn  judernients,  gen- 
erally.— In  dealing  with  all  niatters  of  lit- 
igation growing  out  of  the  construction  of 
railway  law,  in  connection  with  railway 
accidents,  the  supreme  court  of  Louisiana 
will  endeavor  to  place  its  rulings  in  line  and 
in  harmony  with  the  adjudications  of  the 
supreme  court  of  the  United  States,  and  of 
the  courts  of  last  resort  of  the  states  of  the 
American  Union,  in  all  cases  in  which  they 
do  not  conflict  with  the  special  and  excep- 
tional system  of  laws  prevailing  in  Louisi- 
ana. Williams  v.  Pullman  Palace  Car  Co., 
33  Am.  (Sm  Knff.  R.  Cas.  414,  40  La.  Ann. 
417.  4  So.  Rep.  85. 

25. of  Judgments  of  courts  of 

sister  states. — A  final  judgment  of  a  com- 
petent court  of  a  sister  state,  after  citation, 
is  conclusive  of  the  matters  therein  deter- 
mined between  the  same  parties  here,  in  the 
absence  of  evidence  positively  impeaching 


it.  West  Feliciana  R.  Co,  v.  Thornton,  12 
La.  Ann.  736. 

A  judgment  of  a  court  of  another  state  is 
only  conclusive  upon  parties  where  it  is  a 
definite  judgment  upon  the  same  cause  of 
action  upon  the  merits.  An  interlocutory 
order  upon  a  special  application  pending 
the  suit  is  not  conclusive  upon  a  similar 
application  in  an  action  in  this  state.  Taylor 
v.  Atlantic  iS-  G.  W.  R.  Co.,  55  How.  Pr. 
(A'.  Y.)  275. 

Where  the  highest  court  of  another  state 
has  decided  that  the  purchase  of  certain 
railroad  bonds  was  not  in  violation  of  a 
statute  of  the  state  providing  that  railroad 
directors  should  not  purchase  bonds  of  the 
company  at  less  than  par,  the  courts  of  New 
York  will  consider  the  question  settled 
when  it  arises  in  subsequent  litigation. 
Connecticut  Mut.  L.  Ins.  Co.  v.  Cleveland,  C. 
&^  C.  R.  Co.,  26  How.  Pr.  (N.  V.)  225,  41 
Bard.  9 ;  affirming  23  How.  Pr.  1 80. 

A  decree  rendered  by  a  court  of  chancery 
in  Tennessee,  in  a  suit  between  two  railway 
companies,  declaring  a  lease  invalid  and 
ordering  an  accounting,  is  a  bar  to  a  suit 
pending  in  Alabama  instituted  by  a  stock- 
holder of  the  lessor  company  seeking  the 
cancellation  of  such  lease,  and  an  injunction 
against  a  proposed  new  issue  of  stock  for 
the  purpose  of  buying  in  the  lease.  The 
fact  that  the  Alabama  suit  was  first  insti- 
tuted does  not  prevent  the  cause  of  action 
from  being  merged  in  the  Tennessee  judg- 
ment, which  may  be  set  up  as  a  plea  puis 
darrein  continuance.  Memphis  6«»  C.  R.  Co. 
V.  Grayson,  43  Am.  &^  Etig.  R.  Cas.  681,  88 
Ala.  572,  7  So.  Rep.  122. 

20. of  judgments  of  state  courts 

in  federal  courts.— (i)  General  rules. — 
The  decision  of  the  supreme  court  of  the 
state  that  a  particular  corporation  is  a  cor- 
poration of  that  state  is  binding  on  the 
federal  court.  Fitzgerald  v.  Missouri  Pac. 
R.  Co.,  50  Am.  &>  Eng.  R.  Cas.  622,  45  Fed. 
Rep.  812. 

When  a  state  court  has  jurisdiction  of 
the  parties  and  the  subject  matter,  its  judg- 
ment against  a  receiver  of  a  United  States 
court  is  as  final  and  conclusive  as  it  is 
against  any  other  suitor.  Central  Trust  Co. 
V.  St.  Louis,  A.  <S-  T.  R.  Co.,  42  Am.&^Eftg. 
R.  Cas.  26,  41  Fed.  Rep.  551. 

A  party  owning  county  bonds  issued  for 
stock  in  a  railroad,  and  a  party  to  a  suit  on 
coupons  thereof,  is  bound  by  a  judgment  of 
the  supreme  court  of  the  state  holding  them 


ill- 


90 


JUDGMENT;   DECREE,  20. 


invalifl,  and  cannot  recover  in  another  suit 
in  tile  name  of  a  tliiid  person.  Bourbon 
County  Com'rs  v.  Block,  99  U.  S,  686. 

Where  railroad  companies,  existing  in 
two  or  more  states,  consolidate,  a  judj^ment 
in  one  of  tiie  states  against  the  consolidated 
corporation  is  binding  on  the  corporation 
wherever  it  exists.  Union  Trust  Co.  v. 
Rochester  &>  P.  R.  Co.,  29  Fed.  Rep,  609. — 
Following  Home  v.  Boston  &  M.  R.  Co., 
12  Am.  &  Eng!  K.  Cas.  287,  18  Fed.  Kep. 
50;  Nashua  &  L.  K.  Co.  v.  Boston  &  L.  R. 
Co.,  16  Am.  &  Eng.  R.  Cas.  488,  19  Fed. 
Rep.  804;  Graham  v.  Boston,  H.  &  E.  R. 
Co.,  25  Am.  &  Eng.  R.  Cas.  53,  118  U.  S. 
161,  6  Sup.  Ct.  Rep.  1009. 

A  judgment  of  the  highest  co.urt  of  a 
state  as  to  the  right  of  one  railroad  to  cross 
the  lands  of  another  is  conclusive  upon  a 
United  States  circuit  court  for  the  state, 
between  the  same  parties,  or  involving  the 
same  subject  matter;  and  this  is  so  though 
there  be  a  federal  question  involved  which 
gives  the  court  jurisdiction.  Pennsylvania 
R.  Co.  V.  National  Docks  &•  N.  J.  J.  Con- 
necting^ R.  Co.,  51  Feel.  Rep.  858. — FOLLOW- 
ING Morris  &  E.  R.  Co.  v.  Hudson  Tunnel 
R.  Co.,  38  N.  J.  L.  548, 

Wliere  a  suit  in  a  state  court  has  been 
prosecuted  to  final  judgment,  and  appealed 
to  the  highest  court  of  the  state  and  re- 
versed, the  plaintiff  therein  may  dismiss  the 
suit  and  commence  a  new  one  in  a  federal 
court  for  the  same  cause  of  action.  The 
opinion  of  the  state  court  on  appeal  does 
not  create  a  legal  bar  to  a  new  suit,  but  is 
binding  as  to  the  rules  of  law  laid  down 
therein,  where  the  facts  in  the  second  suit 
are  substantially  the  same.  Hazard  v.  C/ii- 
ca^o  B.  &"  Q.  R.  Co.,  4  Biss.  {U.  S.)  453. 

But  in  such  case  the  plaintiff  may  intro- 
duce evidence  showing  a  different  state  of 
facts,  and  thereby  avoid  the  binding  effect 
of  such  opinion.  Hazard  w.  Chicago,  B.  &^ 
Q.  A'.  Co.,  4  Biss.  {U.  S.)  453. 

(2)  Illustrations. — Where  a  receivership 
formerly  existing  in  a  state  court  had  prac- 
tically ceased  prior  to  the  period  covered  by 
the  accounting  claimed  in  the  U.  S.  circuit 
court,  and  the  state  court  had  so  deter- 
mined, and  the  parties  themselves  had 
brought  the  receivership  to  a  close  by  their 
own  acts,  no  formal  entry  in  court  of  such 
discharge  was  necessary,  and,  as  the  parties 
to  the  proceeding  in  the  state  court  were 
not  the  same  as  the  parties  in  this  case,  the 
pendency  of  such  proceedings  would  be  no 


bar  to  this  suit.     Andrews  v.  Smith,  5  Fed, 
Rep.  833,  19  n latch/.  (U.  S.)  100. 

A  suit  was  brought  by  tiie  state  of  Florida 
against  a  railroad  company,  alleging  default 
in  the  payment  of  interest  due  on  ihe  com- 
pany's bonds  given  in  exchange  for  state 
bonds,  and  seeking  to  enforce  the  statutory 
lien  by  the  sale  of  the  roads  and  the  appli- 
cation of  the  proceeds  to  the  holders  of  the 
state  bonds.  The  company  answered,  set- 
ting up  fraud,  the  unconstitutionality  of  the 
law  touching  the  state  bonds,  and  averring 
that  the  railroad  bonds  were  not  a  lien. 
The  supreme  court  of  the  state  dismissed 
the  bill  because  it  was  not  proved  that  any 
of  the  state  bonds  were  in  the  hands  of 
bona  fide  holders.  The  point  as  to  tiie 
statutory  authority,  however,  to  exchange 
the  bonds  and  create  a  lien  was  directly 
made  by  the  pleadings,  and  considered  by 
the  court.  Held,t\MM  the  decision  on  this 
point  was  in  no  just  sense  obiter.  Florida 
C.  R.  Co.  V.  Schutte,  3  A}n.  &*  Efig.  R.  Cas. 
I,  103  U.  S.  118. 

A  passenger  who  was  injured  while  trav- 
eling in  Massachusetts  on  the  Sabbath 
brought  an  action  against  the  company  in 
the  state  court.  The  jury  found  that  he 
was  traveling  on  an  errand  of  necessity  or 
charity,  and  brought  in  a  verdict  in  his 
favor.  On  appeal,  the  Massachusetts  su- 
preme court  held  that  the  facts  did  not 
show  that  the  errand  was  one  of  necessity 
or  charity,  and  remanded  the  case.  The 
plaintiff  then  became  nonsuit,  and  brought 
a  new  action  in  the  federal  circuit  court. 
Held,  that  the  character  of  the  errand  was 
properly  excluded  from  the  jury  in  the 
federal  court,  having  been  passed  upon  and 
decided  in  the  state  court.  Bucher  v. 
Cheshire  R.  Co. ,  34  Am.  <S-  Eng,  R.  Cas.  389, 
125  U,  S.  555,  8  Sup.  Ct.  Rep.  974. 

A  mortgage  trustee  commenced  proceed- 
ings in  a  state  court  to  foreclose  a  mort- 
gage on  a  street  railway.  The  manager  of 
the  road  who  was  also  a  large  stockholder, 
resided  in  another  state,  and  was  made  a 
party  by  what  is  termed  '*  a  warning  order," 
and  a  local  attorney  was  appointed  to  de- 
fend his  interest.  Pending  the  suit  the 
manager  sold  all  his  interest  in  the  com- 
pany, including  certain  overdue  coupons, 
secured  by  the  mortgage,  which  he  war- 
ranted to  the  purchaser  to  be  a  first  lien. 
This  purchaser  bought  with  a  view  of  bid- 
ding in  the  property  when  it  was  sold  at 
the  foreclosure  sale,  which  was  known  to 


JUDGMENT;    DECREE,  27. 


the  manager.  The  court  found  tluit  tlie 
coupons  had  been  paid,  and  the  purchaser 
was  not  entitled  i:.  come  in  under  the  mort- 
gage. Subsequent  suit  was  brouglit  in  a 
federal  court  in  ^nether  state  by  the  pur- 
chaser against  the  superintendent  for  a 
breach  of  warranty.  //iM,  that  tlie  pro- 
ceeding in  the  state  court  was  res  judicata, 
and  estopped  the  manager  from  setting  up 
the  validity  of  the  bonds  as  a  defense  to  the 
second  action.  South  Covington  &*  C.  St.  R. 
Co.  V.  Gcst,  34  Fed.  Ref>.  628  ;  ajjirmed  in  36 
Fed.  Rep.  307.— DiSTiNGUiSHiNC,  Ketchuni 
V.  Duncan,  96  U.  S.  671.  Following 
Com.  V.  State,  32  Md.  501 ;  Haven  v. 
Grand  Junction  R.  &  D.  Co.,  109  Mass.  88  ; 
Union  Trust  Co.  v.  Monticello  &  P.  J.  R. 
Co..  63N.  Y.  311. 

Interveners,  certain  individuals,  owned  a 
short,  uncompleted  railroad,  whicii  they  sold 
to  defendant  company  for  §25,000,  agreeing 
to  receive  payment  in  transportation  cer- 
tificates, the  purchasers  binding  themselves 
to  finish  the  road  within  two  years;  other- 
wise the  agreonient  to  be  void.  Large  ex- 
peiuliiurcs  were  made,  but  the  road  was 
not  fully  completed  within  the  time,  and 
the  interveners  gave  notice  that  they 
elected  to  treat  the  contract  a^  forfeited, 
and  demanded  pos.session  of  the  road.  The 
company  brought  suit  in  a  state  court,  after 
tendering  the  transportation  certificates,  to 
compel  specific  performance;  and  the  in- 
terveners filed  an  answer  in  the  nature  of  a 
cross-bill,  insisting  on  the  relief  that  they 
had  demanded  from  the  company;  but  the 
bill  was  dismissed,  but  without  prejudice, 
except  as  to  the  right  to  claim  a  forfeiture 
of  the  agreement.  In  a  subsequent  action 
to  foreclose  a  mortgage  on  the  property,  in- 
terveners appeared  and  objected  to  the  sale, 
and  insisted  on  making  a  claim  for  a  for- 
feiture. Held,  that  they  were  concluded  by 
the  judgment  in  the  former  suit,  it  appear- 
ing that  it  was  still  in  full  force.  Central 
Trust  Co.  v.  Iowa  C.  R.  Co.,  40  Fed.  Rep. 
851. 

In  a  former  suit,  in  a  state  court,  between 
two  land  grant  railroad  companies,  by  one 
to  recover  lands  clai  'led  by  the  other  in 
overlapping  grants,  plaintiff's  bill  described 
the  land  as  the  odd-numbered  sections  ly- 
ing within  a  specified  distance  of  its  road 
and  running  through  certain  ranges  and 
townships;  and  annexed  to  the  bill  was  a 
diagram  of  its  road  which  was  claimed  to 
be  correct.  During  the  proceeding  the  ac- 
6  D.  R   D.— 7. 


curacy  of  tl'.c  ('.(.scrii-iion  .vas  not  ques« 
tioiieii,  :iii(l  iv  sccincd  that  a  court  would 
have  nodithcuUy  in  detti  niinint;  w  liat  lands 
were  then  in  conlrovfisy  irom  tLe  record. 
Held,  that  a  plea  of  res  jiuiiiiita  in  a  subse- 
quent suit  in  ;i  federal  k  ui  t  to  lecover  the 
same  lands  was  good.  Soutlierit  Minn.  R, 
Extension  Co.  v.  St.  Paul  &-'  S.  C.  R.  Co., 
55  Fed.  Rep.  690. 

In  such  case  it  was  also  suggested  that  a 
plea  of  a  former  adjudication  was  not  tenable, 
for  the  reason  that  the  right  to  relief  in  the 
former  action  was  predicated  on  the  alle.t;ed 
fraud  of  delendants  in  constructing  its  road 
for  some  distance  through  the  territory 
where  the  land  grants  interfered  <>n  a  route 
somewhat  different  from  that  indicated  by 
its  original  map  of  definite  location.  Held, 
that  this  contention  was  not  tenable,  if  it 
be  assumed  that  the  recovery  in  the  former 
action  was  on  the  sole  ground  of  fraud.  If 
the  defendant  might  have  pleaded  in  the 
fornter  action  the  same  grounds  of  recovery 
which  it  relies  on  in  the  second,  and  did 
not  do  so,  it  cannot  take  advantage  of  such 
neglect.  Sou t /tern  Minn.  R.  Extension  Co. 
V.  St.  Pat(l&'  S.  C.  R.  Co.,  55  Fed.  Rep.  690. 

In  the  former  suit  the  referee  found  that 
the  odd-numbered  sections  which  defendant 
claimed  as  indemnity  lands  were  withdrawn 
from  sale  before  plaintiff's  grant ;  aid  founrl, 
as  a  question  of  law,  that  the  withdrawal 
operated  to  exclude  the  lands  from  the 
grant.  In  the  subsequent  suit  certain  other 
additional  lands  were  demanded  within  de- 
fendant's indemnity  limits,  //eld,  that  the 
former  litigation  constituted  an  estoppel  as 
to  the  additional  lands.  Sout/iern  Minn.  R. 
Extension  Co.  v.  St.  Paul  <^  .V.  (.'.  A'.  Co., 
55  Fed.  Rep.  690.  ^ 

27.  C<iiicliiNiveiicss  of  riiliii{jrs  in 
equity  in  snbsequent  ai'tion  at  In^v. 
— Where  defendant  had  purchased  a  strii) 
of  land  through  the  plaintiffs'  property  aid 
agreed  to  put  in  a  passageway  under  tiie 
track  at  a  certain  place,  and  it  afterward 
appeared  that  the  road  leading  to  the  pro- 
posed passageway  was  cut  off  and  that  a 
passageway  at  that  point  would  be  flooded 
by  tidewater,  and  the  defendant  therefore 
failed  to  perform  its  agreement,  and  the 
plaintiffs  brought  suit  for  specific  perform- 
ance ;  and  it  also  appeared  that  the  sub- 
contractors who  constructed  the  defend- 
ant's road  had  trespassed  upon  and  wasted 
the  land  of  the  plaintiffs  adjacent  to  the 
strip  purcliased,  and  the  plaintiffs  also  joined 


'V. 


JUDGMENT;   DECREE,  28-30. 


claims  of  damages  therefor— //f/</,  tliat  the 
rulings  of  the  court  of  equity  upon  the 
measure  of  damages  were  not  conclusive  in 
a  subsequent  action  at  law.  Mutt/chit  v. 
Ne%v  York,  W.  S.  (S-  D.  A\  Co..  25  .l»i.  &- 
En^.  A'.  Cas.  144,  102  A'.  V.  703,  iiifin.,  i  Silv. 
^if>P-  93.  7  '"^'-  E-  A'efi.  404.  2  A',  y.  S.  K.  444 ; 
affinniiti^  34  ////«  632. 

as.  Juoiiclusiveiic'ss  of  jii<li;iiiciitM 
by  consent.  — Where  a  consent  decree  is 
entered  between  the  United  States  and  a 
railroad  company,  confirming  a  compromise 
for  all  claims  prior  to  1871,  specifying  any 
claim  against  the  United  States  for  carry- 
ing the  mails,  it  is  a  bar  to  a  subsequent 
suit  by  the  company  in  the  cour'  of  claims 
for  carrying  the  mails  before  the  war  of  the 
rebellion,  although  at  the  time  such  decree 
was  entered  payment  to  the  company  was 
prohibited,  because  it  was  situate  within 
confederate  territory,  and  had  aided  in  the 
rebellion.  Nashville,  C.  &*  St.  L.  A'.  Co.  v. 
l/nifai  Stales,  1 13  6^.  5.  261,  5  Sup.  Ct.  Rep. 
460.— Reconciled  in  Kelley  v.  Milan,  127 

U.  S.  139. 

A  decree  entered  by  consent  of  a  mayor 
of  a  town  that  certain  bonds  of  the  town, 
issued  for  stock  in  a  railway,  should  be 
valid  and  binding  is  not  a  judicial  deter- 
mination of  their  validity,  so  as  to  estop 
the  town  from  setting  up  their  invalidity  in 
a  subsequent  suit.  Kelley  \.  Milan,  127  U. 
S.  139,  8  Sup.  Ct.  Rep.  I  loi,— Reconcil- 
ing Nashville,  C.  &  St.  L.  R.  Co.  v.  United 
States.  113  U.  S.  261. 

Where  a  railroad  company  brings  a  suit 
against  another  company  to  recover  certain 
lands,  and  a  consent  decree  is  entered 
awarding  the  plaintif!  a  part  of  the  land 
and  dismissing  the  bill  without  prejudice 
as  to*its  right  to  institute  other  suits  to 
establish  its  right  to  the  land,  it  is  not 
thereby  prevented  from  bringing  a  subse- 
quent suit  in  equity  to  establish  its  title, 
though  the  bill  on  its  face  shows  no  higher 
equitable  right  to  the  land  than  was  shown 
in  the  former  suit.  Northern  Pac.  R.  Co.  v. 
St.  Paul,  M.  <S-  M.  R.  Co.,  47  Fed.  Rep. 

536- 

Where  directors  have  entered  into  an  il- 
legal contract,  and  subsequently,  in  a  suit 
to  which  the  corporation  is  a  party,  have 
assented  to  a  judgment  afiirming  the  valid- 
ity of  such  contract,  this  will  not  debar  the 
corporation  from  taking  steps  to  set  the 
contract  aside.  Metropolitan  El.  R.  Co.  v. 
Manhattan  El.  R.  Co.,  15  Am.  <S-  Eng.  R. 


Cas.  I,  II  Daly  {N.  Y.)  373,  14  Abb.  N.  Cas. 
103. 
129. of  jiulffinent  of  iioiiMiiit.— 

An  employe  sued  a  railroad  company  in  a 
state  court  to  recover  for  personal  injuries 
caused  by  negligence,  and  obtained  a  judg- 
ment, which  was  reversed  by  the  supreme 
court  of  the  state.  After  the  case  was  re- 
manded plaintiff  suffered  a  nonsuit,  but 
without  prejudice  to  his  right  to  bring  an- 
other action.  Heltl,  that  he  was  not  es- 
topped from  bringing  a  new  suit  in  a  federal 
court  and  maintaining  the  same,  especially 
where  the  evidence  in  the  latter  suit  was 
considerably  different  from  that  of  the  for- 
mer. Gar  liner  v.  Micliigan  C.  R.  Co..  150 
U.  S.  349, 14  Sup.  Ct.  Rep.  140.— Reviewim; 
Buclicr  V.  Cheshire  R.  Co.,  125  U.  S.  555. 

30.  of  jii(li;iii«iit8  of  {liNiiiissal. 

— A  decree  dismissing  a  bill  on  the  merits  of 
the  controversy  is  an  adjudication  and  bars 
a  subsequent  suit..  Durant  v.  Essex  County, 
7  Wall.  (U.  S.)  107.— Distinguished  i.\ 
Philadelphia  v.  Ridge  Ave.  R.  Co.,  142  Pa, 
St.   484.     Reviewed   in   Washington,   O. 

6  W.  R.  Co.  V.  Cazenove,  S3  Va.  744,  3  S. 
E.  Rep.  4^y— State  ex  rel.  v.  Chester  &•  L. 
R.  Co.,  5  Am.  &^  En^r.  R.  Cas.  220,  13  So. 
Car.  290,— Approving  and  distingui.sh- 
ING  Glenn  v.  York  County  Com'rs,  6  S". 
Car.  412. 

Where  a  county  by  its  cross-bill  admits 
the  validity  of  certain  of  its  bonds,  but  asks 
to  be  relieved  from  paying  the  same  except 
as  against  purchasers  for  value  without 
notice,  because  of  the  failure  of  the  condi. 
tions  of  their  issuance,  and  on  demurrer  the 
cross-bill  is  dismissed  for  want  of  equity, 
such  dismissal  is,  as  between  the  same 
parties,  res  judicata.  Washington,  O.  &^ 
W.  R.  Co.  V.  Casenove,  83  Va.  744,  3  S.  E. 
Rep.  433.— Reviewing  Durante.  Essex  Co., 

7  Wall.  (U.  S.)  107. 

A  bank  advanced  large  sums  of  money  to 
enable  the  lessees  of  a  railroad  to  equip  it 
for  operation,  and  filed  a  creditor's  bill, 
seeking  to  have  the  amount  of  the  advances 
declared  a  lien  on  the  road.  The  defense 
was  interposed  that  a  former  bill  filed  for 
the  s3'-.i  purpose  had  been  dismissed  on 
the  ground  that  the  property  purchased  for 
the  road  could  not  be  identified  as  that  pur- 
chased by  the  money  furnished  by  the  bank. 
Held,  that  this  decree  was  a  bar  to  the 
second  suit,  though  it  alleged  the  additional 
ground  that  the  bank  had  taken  judgment 
against  the  lessees  of  the  road,  and  that 


JUDGMENT;   DECREE,  31,  32. 


execution  had  been  returned  nulla  dona. 
Case  V.  New  Orleans  &*  C.  K.  Co.,  2  Woods 
(U.S.)  2i6. 

Where  the  owner  of  property  which  was 
destroyed  by  fire  while  in  the  possession  of 
a  carrier  brought  an  action  tlie  complaint 
in  which  contained  counts  founded  not 
only  upon  Mass.  Pub.  St..  ch.  112,  §  214, 
wliicli  provides  that  a  railroad  corporation 
shall  l)e  responsible  for  property  injured  by 
tire  coii.municated  by  its  locomotive  en- 
gines, but  also  upon  the  alleged  negligence 
of  tiie  carrier,  and  such  action  was  dis- 
missed on  the  ground  that  the  statute  did 
noi  apply  to  goods  destroyed  by  fire  while 
in  the  possession  of  a  railroad  company 
under  a  contract  of  carriage,  and  no  evi- 
dence was  introduced  in  it  as  to  the  negli- 
gence of  the  company,  the  judgment  in  that 
action  is  a  bar  to  a  second  suit  founded 
solely  upon  the  alleged  negligence  of  the 
carrier.  Bassett  v.  Connecticut  River  R.  Co., 
ip  Am.  &•  Eng.  R.  Cas.  n8,  150  Mass.  178, 
22  .v.  E.  Rep.  890.— Rkfkrring  to  Bassett 
V.  Connecticut  River  R.  Co.,  145  Mass.  129. 

A  landing  and  ferry  were  leased  to  a  rail- 
road, and  afterward  the  railroad  property 
sold,  and  the  owner  of  the  ferry  sued  the 
purchasers  at  law  for  a  violation  of  the 
lease.  The  court  dismissed  this  action  on 
the  ground  that  the  covenants  in  the  lease 
did  not  run  with  the  land,  and  therefore  did 
not  bind  the  purchasers  of  the  railroad. 
/M/,  that  this  judgment  was  not  a  bar  to 
anotlier  equitable  proceeding  to  recover  for 
the  use  and  enjoyment  of  the  property. 
yVil'f^ins  Ferry  Co.  v.  Ohio&^  M.  R.  Co.,  52 
Am.  &>  Eng.  R.  Cas.  82,  142  U.  S.  396,  12 
Sup.  CI.  Rep.  188. 

Where  a  plaintiflf  brought  an  action 
aijainst  a  railroad  company  upon  an  express 
contract  made  between  him  and  another 
company,  and  dismissed  that  action  after  an 
adjudication  by  this  court  that  he  could  not 
recover  therein,  the  result  of  that  action  is 
no  bar  to  a  subsequent  suit  against  the 
same  company,  founded  upon  tort,  for  un- 
reasonable delay  in  delivering  goods  which 
it  had  received  for  transportation  from  a 
connecting  road,  although  the  goods  were 
the  same  as  those  involved  in  the  former 
action.  Johnson  v.  East  Tenn.,  V.  <S-  G.  K. 
Co.,  55  Am.  &*  Eng.  R.  Cas.  446,  90  Ga.  810, 
17  -S.  E.  Rep.  121. 

31. of  Judgrments  on  demur- 
rer.—A  judgment  on  demurrer,  where  the 
merits  are  involved,  in  a  suit  on  coupons  of 


bonds  issued  in  aid  of  a  railroad,  is  a  bar  to  a 
subsequent  suit  between  the  same  parties, 
and  involving  the  same  subject  matter. 
Aurora  v.  West,  7  Wall.  ( U.  S.)  82.— Di.STlN- 
GUISHKU  IN  Philadelphia  v.  Kidge  Ave.  R. 
Co.,  142  Pa.  St.  ^^^.—  Jiissell  v.  Spring  Val- 
ley Tp.,  124  U.  S.  225,  8  Sup.  Ct.  Rep.  495. 
In  an  action  to  quiet  title  to  land,  an  or- 
der overruling  a  demurrer  to  the  complaint 
was  affirmed  by  this  court,  it  being  held 
that  the  defendant's  title  was  void.  After 
the  comniencement  of  that  action  the  de- 
fendant railroad  company  brought  a  suit 
against  the  plaintitT  in  a  federal  court  to 
quiet  the  title  to  other  parcels  of  land  held 
by  it  by  the  same  title.  The  adjudication 
of  this  court  was  not  pleaded  in  the  latter 
suit,  and  the  federal  court  adjudged  the 
title  of  the  railroad  company  to  be  valid. 
The  company  then  asked  leave  to  file  in  the 
first-mentioned  action,  which  had  been  re- 
manded to  the  circuit  court  for  trial,  an 
amended  answer  setting  up  the  judgment 
of  the  federal  court  as  a  bar  by  way  of 
estoppel,  on  the  ground  that  the  question  of 
the  validity  of  its  title  had  been  adjudged 
in  its  favor  by  a  competent  court  in  an 
action  between  the  same  parties.  Held, 
that  leave  to  plead  such  judgment  was  prop- 
erly denied,  the  question  being  res  judicata 
by  the  decision  of  this  court.  Ellis  v.  North- 
ern Pac.  R.  Co.,  80  Wis.  459,  50  N.  W.  Rep. 
397  ;  former  appeal  77  Wis.  114,  45  ^V.  W. 
Rep.  811. 

3.  Collateral  Impeachment. 

32.  General  rule   forbiddiuff   it.— 

A  judgment  cannot  be  collaterally  im- 
peached by  a  party  on  the  mere  ground  that 
it  is  erroneous.  Indiana,  B.  &*  W.  R.  Co. 
V.  Allen,  113  Ind.  308,  15  N.  E.  Rep.  451, 12 
West.  Rep.  910. 

A  judgment  of  condemnation  rendered 
by  a  competent  court,  where  all,  the  facts 
necessary  to  the  exercise  pf  its  jurisdiction 
are  shown  to  exist,  is  no  more  subject  to 
impeachment  in  a  collateral  proceeding  than 
the  judgment  of  any  other  court  of  exclu- 
sive jurisdiction.  Secombt  v.  Milwaukee  <S» 
St.  P.  R.  Co.,  23  Wall.  {U.  S.)  108,  II  Am. 
Ry.  Rep.  355.— Quoted  in  Sedalia  v.  Mis- 
souri, K.  &  T.  R.  Co.,  17  Mo.  App.  105. 
Reviewed  in  Winona  &  St.  P.  R.  Co.  v. 
Deuel  County,  7  Am.  &  Eng.  R.  Cas.  348,  3 
Dak.  I. 

If  in  proceedings  to  foreclose  a  mortgage 
upon    railroad    property     the   foreclosure 


100 


JUDGMENT;    DECREE,  33-37. 


ju(l|,'mcnt  determines  that  curtain  stocks 
and  bonds  are  subject  to  the  mortgage  and 
liai)lc  to  be  sold  witli  the  mortgaged  prcn)- 
ises,  such  judgment  imports  absohite  verity, 
and  neither  the  railroad  company  nor  any  of 
its  general  creditors  can  be  heard  to  impeach 
il  in  a  collateral  proceeding.  Hen  hi};  v. 
AVw  York,  !..  E.  &•  W.  R.  Co.,  35  Aw.  &- 
/■.'/{If.  A'.  Cis.  54,  105  jV.  y.  340,  19  .■!/>/>.  -V. 
cis.  340.  12  A'.  £.  Ni'f>.  7(y}.  7  N.  V.  S.  R. 
517;  iij/iriniiin;  34  Hun  634,  »ii»t.,6^  //ore. 
/v.  497.  — FoLi.owKi)  IN  Clapp  T'.  Clapp,  4 
Si!v.  Sup.  Ct.  379. 

.'{.'{.  YarioiiH  applit^atioiiM  of  the 
riiU'.— A  stockholder  is  a  part  of  a  cor- 
jioration,  and  is  deemed  a  party  to  a  pro- 
(•ui:ding  against  it  so  far  as  to  estop  him 
from  attacking  a  decree  entered  therein  in 
a  collateral  proceeding.  Gra/iain  v.  Boston, 
II.  .S-  E.  R.  Co..  25  Aw.  5-  Eiij;.  N.  Cas. 
53,  1:8  U.  S,  161,  6  Siif}.  Ct.  Rep.  1009 

A  default  in  a  suit  against  an  administra- 
tor, to  enforce  the  liability  of  his  intestate 
as  a  stockholder  of  a  railway,  under  111. 
Act  of  1849,  admits  all  the  facts  properly 
pleaded,  and  it  will  be  presumed  they  were 
sufficient  to  justify  the  judgment  rendered, 
when  called  in  question  collaterally.  Citt- 
right  V.  Stanford,  8 1  ///.  240. 

An  order  by  the  board  of  county  com- 
missioners granting  the  prayer  of  a  petition, 
under  Ind.  Rev.  St.  of  1876,  asking  for  an 
appropriation  in  aid  of  a  railway,  is  a  deci- 
sion or  judgment  as  to  all  the  material 
questions  alleged  and  presented  in  the  peti- 
tion, including  the  due  organization  of  the 
company  and  its  right  to  receive  aid  ;  and 
such  decision  cannot  be  attacked  collater- 
ally in  an  action  by  a  taxpayer  to  enjoin  a 
collection  of  taxes  levied  to  pay  such  ap- 
propriation. Laivrcnce  County  Cow'rs  v. 
Hall,  70  Ind.  469.  Shelby  County  Court  v. 
Cumberland  &•  O.  R.  Co.,  8  Bush  {Ay.)  209. 
Louisville  .i^  A^.  R.  Co.  v.  State,  8  Heisk. 
(Tenn.)  663,  19  A^.  Ry.  Rep.  107. 

34.  When  the  rule  docs  not  apply. 
— The  act  of  the  county  supervisors  in 
levying  a  tax  in  aid  of  a  railroad  is  purely 
ministerial,  and  not  judicial,  and  the  record 
thereof  is  not,  like  a  judicial  record,  exempt 
from  attack  in  a  collateral  proceeding. 
Scott  v.  Union  County,  63  Iowa  583,  19  N. 
IV.  Rep.  667. 

35.  cases  of  lack  of  jurisdic- 
tion. —  Where  a  garnishment  in  another 
state  is  pleaded  as  a  defense  to  an  action  on 
^n  account,  it  is  competent  for  the  plaintiff 


to  show  that  ilie  foreign  judgment  on  whi(  h 
the  garnishment  was  based  was  void  for 
want  of  jurisdiction,  because  of  matti'is  ex- 
trinsic to  the  record.  O'Rourke  v.  Chicayo, 
M.  &*  St.  1\  R.  UK,  55  Iowa  332,  7  A'.  i\\ 
Rep.  582. 

3«.  IVaiid.— Where  a  proceeding  is 

institutcfl  against  a  mortgage  trustee,  and  a 
decree  is  entered  declaring  the  mortv.age  ur 
trust  deed  and  the  bone's  which  it  sei  uns 
invalid, such  decree  cannot  be  attacki  d  cil- 
laterally  on  the  ground  of  fraud  and  ci  llii- 
sion  by  a  bondholder  who  is  not  made  a 
party,  after  the  property  has  been  sold  and 
l)asscd  to  the  hands  of  a  purchaser  fur 
value  without  notice.  Reals  v.  Illinois,  M. 
&^  T.  R.  Co.,  27  Fed.  Rep.  721. 

III.  LIEN ;  PRIORITY. 

37.  Lien.— A  judgment  against  a  rail- 
road corporation  becomes  a  lien  upon  its 
road  and  realty,  in  the  same  manner  as 
upon  the  real  estate  of  a  natural  person. 
Ludlow  V.  Clinton  Line  R.  Co.,  i  Flipp.  ( U. 
S.)  25.— Di.s'iiNuulsHiNG  Coe  V.  Crjlumbus, 
P.  &  I.  R.  Co.,  10  Ohio  St.  372. 

The  lien  of  a  judgment  for  personal  in- 
juries against  a  railroad  company  is  purely 
statutory,  and  the  claim  becomes  a  lien 
upon  the  road  only  when  reduced  to  judg- 
ment. White  V.  Keokuk  iS^  I).  M.  R.  Cn., 
52  Iowa  97,  2  N.  If.  Rep.  1016.— Follow- 
ing Burlington,  C.  R.  &  N.  R.  Co.  v.  Verry, 
48  Iowa  458. 

A  judgment  for  damages  for  the  failure 
of  a  railroad  company  to  comply  wiili  a 
contract  to  construct  a  crossing  in  consiil- 
eration  of  a  grant  of  a  right  of  way,  is  a 
lien  on  the  portion  of  the  road  covered  by 
the  contract.  Davies  v.  .SV.  Louis,  A'.  C.  Gt^ 
N.  R.  Co.,  56  Iowa  192,  9  A'.  IV.  Rep.  117. 
—Following  Varner  v.  St.  Louis  &  C.  K. 
Co.,  55  Iowa  677. 

A  statute  making  a  judgment  in  tort 
against  a  railway  company  a  lien  on  its 
property  in  the  county  where  recovered, 
and  making  such  lien  superior  to  the  lien 
of  any  mortgage  or  trust  deed  executed 
since  July  4,  1862,  is  constitutional.  Cen- 
tral Trust  Co.  V.  Sloan,  23  Aw.  &•  Eng.  A'. 
Cas.  398,  65  laiua  655,  22  N.  W.  Rep.  916.— 
Following  Rucklew  v.  Central  Iowa  R. 
Co.,  64  Iowa  603. 

Where  plaintiff  obtained  judgment 
against  th.'i  defendant  company  for  breach 
of  an  agreement,  contained  in  a  right  of 
way  deed,  to  fence   and    build    crossings 


JUDGMENT;   DECREE,  38-40. 


101 


along  and  over  the  right  of  way,  he  was  en- 
titled ti)  a  lien  therefor  upon  the  property 
()[  the  company;  but  lie  was  not  entitled  to 
a  lien  for  a  jud^'uient  on  account  of  tres- 
pass, nor  for  a  judgment  on  account  <jf 
iicf,'liKeiice  in  constructing  the  road, 
whereby  the  premises  were  (jverllowed. 
Hull^.  Chicago,  B.  &*  P-  A'.  Co.,  20  Am.  &^ 
Eng.  N.  Ciis.  341.  65  Iowa  713.  22  A'.   II'. 

J\'e/>.  <;40' 

III  Wisconsin,  where  judgments  are  liens 
on  real  estate,  and  where  the  rolling  stock 
of  railroads  are  made  fixtures  by  statute,  a 
judnmeiu  becomes  a  lien  on  the  road  from 
the  time  it  is  rendered,  npH  ;i  sale  there- 
under passes  to  the  purchaser  the  entire  in- 
terest of  the  comiyiny  existing  at  the  time 
of  the  rendition  ol  the  judgment.  A/i7- 
waid-tr  <S-  M.  A\  Co.  v.  /ames.  6  ITa//.  {U. 
S.)  750-  —  Criticiskd  !N  Williamson  v. 
New  jersey  Southern  R.  Co.,  29  N.  J.  Eq. 
311.  Kevikwed  in  Vermont  &  C.  R.  Co. 
V.  Vermont  C.  R.  Co.,  50  Vt.  joo. 

Pending  the  foreclosure  of  a  railway 
mortgage  plaintiff  commenced  an  action 
against  tlie  receiver  in  charge  of  the  road 
to  recover  for  personal  injuries  sustained 
between  the  date  of  the  foreclosure  sale 
and  the  execution  of  the  sheriff's  deed 
thereon.  After  the  receiver  had  appeared 
and  answered  the  action,  a  sheriff's  deed 
was  executed,  and  the  receiver  made  final 
settlement  and  was  discharged.  Held,  that 
a  judgment  subsequently  rendered  against 
the  receiver  was  not  a  lien  upon  the  prop- 
erty in  the  hands  of  the  purchaser.  IV/tHe 
V.  K.okid'  &*  D.  M.  R.  Co.,  12  Iowa  <)7,2  N. 
\V.  Ri-p.  1016. — Following  Burlington  C. 
R.  iS:  N.  R.  Co.  7>.  Verry,  48  Iowa  458.  Re- 
viKwiNG  Ohio  &  M.  R.  Co.  v.  Davis,  23 
Ind.  553. 

JiS.  Priority.— A  judgment  against  a 
railroad  company  for  personal  injuries  be- 
fore the  company  went  into  the  hands  of 
a  receiver  is  but  a  general  claim  against 
the  road,  and  the  holder  is  not  entitled  to 
priority  of  payment  out  of  the  earnings  of 
the  road  in  the- hands  of  the  receiver,  nor 
out  of  the  corpus  of  the  property  when  it  is 
sold.  Central  Trust  Co.  v.  East  Tenn.,  V. 
^  G.  A'.  Co.,  30  Am.  <S>»  £ng.  A'.  Cas.  450,  30 
fed.  Kep.  895. 

Under  Iowa  Code,  §  1309,  making  a  judg- 
ment against  a  railroad  company  for  per- 
sonal injuries  a  superior  lien  to  any  mort- 
gages on  the  road,  the  costs  of  the  suit  to 
enforce  the  lien  are  entitled  to  like  priority. 


Central  Trust  Co.  v.  Central  Iowa  A'.  Co.,  38 
I'\<1.  Rep.  889. 

A  railway  company  took  title  to  its  prop- 
erty under  a  decree  and  order  of  the  circuit 
court  of  the  United  States  which  bound  it 
to  pay  defendant's  cl;\im.  Afterwards,  but 
before  defendant  had  put  his  claim  into 
judgment  against  the  company,  it  mort- 
gaged its  property  to  the  pl.uiuiff  trust 
company.  Held,  that  the  trusi  (  onipany 
knew,  <jr  was  bound  to  know,  that  tlic  title  of 
the  railway  company  was  based  on  the  de- 
cree and  order,  and  that  ;  mortgage  wiis 
inferior  as  a  lien  to  defendant's  judginr  nt. 
Central  Trust  Co.  v.  Sloan,  23  Ani.  'i-  Eng. 
R,  Cas.  39?^,  65  Iowa  655,  22  A',  li  .  hep.  916. 

In  view  of  statutory  provisions  contained 
in  articles  4930  and  4912,  Fasch.  'lex.  Dig., 
railroads  are  not  "  real  estate."  //«.'/</',  there- 
fore, that  judgments,  whether  recorded  or 
not,  operated  no  lien  on  the  road  of  the 
Southern  Pacific  R.  Co.,  against  which  they 
were  rendered  ;  and  that  the  execution  first 
levied  was  entitled  to  the  proceeds  resulting 
from  the  sale  of  the  road.  Scogt'n  v.  I'errj, 
32  Tex,  21. 

IV.  SATISFACTION  AND  DISCHABOE. 

30.  Wliut  iiiiiouiits  to  Hati.sfiictioii. 

--A  decree  requiring  the  defendant  to  de- 
liver up  .  I  the  plaintiff's  bonds  which  he 
held  and  owned  is  not  complied  with  if  he 
does  not  disclose  bonds  of  that  character 
which  he  purchased  while  the  suit  was 
pending,  and  which  he  might  have  dis- 
closed. Ashuclot  R.  Co.  v.  Cheshire  R.  Co., 
60  A^  H.  356. 

40.  ItciiiHtateineiit  of  sati.sflc(l 
Jiidf^iiiciits. — A  judgment  creditor  whose 
lien  is  subsequent  to  that  of  a  trust  deed, 
after  the  sale  of  a  railroad  in  foreclosure  of 
the  trust,  in  which  he  became  the  purchaser, 
marked  his  judgments  "satisfied  "  in  order 
to  clear  the  title  of  the  property,  although 
receiving  no  consideration  for  so  marking 
them.  Afterwards  the  validity  of  the  sale 
at  which  he  purchased  was  assailed  by  suit, 
and  the  sale  decreed  to  have  been  invalid 
for  causes  not  implicating  the  purchaser. 
On  a  bill  brought  by  the  judgment  creditor 
to  set  up  his  judgments  and  to  annul  his 
cancellation  of  them— //t'A/,  that  the  judg- 
ments must  be  set  up  and  constitute  liens 
as  they  did  before  they  were  marked  satis- 
fied. Hay  V.  Washington  &•  A.  R.  Co.,  4 
Hughes  {U.  S.)  327. 


t        >  I 


10-i 


JUDGMENT;  DECREE,  41-43. 


41.  Recovery  over  by  joint  tort- 
fCiiHor  alter  satisfaction.— Two  railway 
companies  discharged  a  judgment  against 
themselves  for  injuries  to  a  common  em- 
ploye. One  seeking  indemnity  from  tlie 
other  would  be  compelled  to  show  that  the 
injury  was  caused  by  the  exclusive  negli- 
gence of  the  defendant  sued  for  such  in- 
demnity. Gulf,  C.  &*  S.  F.  R.  Co.  V.  Gal- 
veston, H.  &*  S.  A.  K.  Co.,  52  A»t.  iSo  E>ig^. 
A'.  C<is.  99.  83  Tc'x.  509,  18  .S'.  IV.  Rep.  956. 

Complainants  entered  into  a  contract  with 
the  defendant  railroad  companies  to  build 
the  stone  piers  for  a  bridge  over  the  Cum- 
berland   river,    and,    in    doing    the    work, 
stretched  a  rojje  across  the  river  by  which 
the  chimneys  of  a  steamboat  were  knocked 
down,  and  for  the  damages  occasioned  by 
which  the   boat  owners  recovered  a  joint 
ju(i<;inent- against  complainants  and  said  de- 
fendants.   The  L.  &  N.   R.  Co.   paid  the 
judgment,  causing  the  same  to  be  assigned 
to  its  president  in  his  individual  name  and 
execution  to  be  issued  thereon,  which  was 
levied  on  complainants'  property.      Upon 
bill  filed  by  the  latter  to  enjoin  the  execu- 
tion as  extinguished,  and  by  the  company 
to  recover  the  amount  of  the  judgment — 
held:  (i)  That  equity  would  not,  under  the 
circumstances,  deprive  the  company  of  any 
legal  advantage  acquired  by  the  assignment 
of  the  judgment ;    (2)  the  company  is  en- 
titled, on  the  cross-bill,  to  recover  from  the 
complainants  any  money  paid  by  it  in  satis- 
faction of  the  judgment,  and  this  though 
one  of  the  complainants  was,  by  clerical 
misprision,  not   named   in  the    judgment. 
Maxwell  v.  Louisville  &*  N.  R.  Co.,  i  Tenn. 
Ch.  8.— Quoting  Home  v.  Memphis  &  O. 
R.  Co.,  I  Coldw.  (Tenn. J  76. 

V.   ABBESTINO,  AMENDING,  OPENING,  AND 
VACATING. 

42.  Arresting. — Where  a  verdict  is 
iound  for  an  entire  amount  of  damages  upon 
a  petition  containing  several  counts,  if  any 
of  the  counts  be  defective  the  judgment 
will  be  arrested.  Clark  v.  Hannibal  &•  St. 
J.  R.  Co.,  36  Mo.  202. 

Where  the  same  count  contains  different 
demands  for  some  of  which  recovery  may 
be  had  and  others  not,  it  will  be  presumed 
on  a  motion  in  arrest  of  judgment  that  the 
jury  were  not  allowed  to  consider  those  de- 
mands for  which  no  recovery  could  be  had. 
Bunyea  v.  Metropolitan  R.  Co.,  8  Mackey 


(Z>.  C)  76.— Approving  Northern  C.  R.  Co. 
V.  Mills,  61  Md.  355. 

The  lower  court  has  no  power  to  suspend 
the  operation  of  an  injunction  order  re- 
straining defendant  from  doing  certain  acts, 
pending  an  appeal.  Genet  v.  Delaware  &* 
H.  Canal  Co.,  21  A^  Y.  S.  R.  455,  4  A^.  1'. 
Supp.  633,  24/.  (Sv  S.  290. 

A  motion  which,  in  terms,  asks  an  arrest 
of  judgment,  on  the  ground  that  there  is 
nothing  in  the  verdict  which  shows  that  it 
was  rendered  against  any  party  to  the  suit, 
is,  in  legal  effect,  a  motion  to  set  aside  the 
verdict;  and  the  action  of  the  court  below, 
on  such  a  motion,  which  pronounces  the 
judgment  "  arrested  "  leaves  the  case  stand- 
ing in  court  as  if  it  had  never  been  tried ; 
such  action  of  the  court  is  not  a  final  judg- 
ment from  which  an  appeal  can  be  taken. 
More/ieud  v.  International  R,  Co.,  46  Tex. 
178,  13  Am.  Ry.  Rep.  314. 

43.  A.aienclint;  or  uiodif ying.  —  A 
judgment  ngainst  a  railroad  company  can- 
not be  corrected  nunc  pro  tunc  by  striking 
out  the  name  by  which  it  was  sued  and 
served  with  process,  and  inserting  another 
corporate  name.  Brown  v.  Terre  Haute  <&* 
/.  R.  Co.,  72  Mo.  567. 

Where  a  suit  against  an  elevated  railway 
company  is  to  obtain  equitable  relief  and 
damages,  a  decree  awarding  an  injunction, 
with  a  provision  that  it  may  be  avoided  ly 
paying  to  plaintiff  certain  damages  and 
costs  within  a  fixed  time,  may  be  amended, 
on  motion  of  the  company,  by  providing 
that  such  damages  and  costs  may  be  paid 
into  court,  where  it  appears  that,  after 
diligent  search,  plaintiff  cannot  be  found. 
Rauth  V,  Nt-w  York  El.  R.  Co.,  23  A'.  1'. 
Supp.  750. 

A  decree  directing  the  sale  of  a  railroad 
provided  that  enough  money  should  be 
paid  to  discharge  certain  judgments,  taxes, 
and  other  claims,  if  they  should  be  allowed. 
By  an  amendment  to  the  decree  made  at  a 
subsequent  term  it  was  provided  that  the 
property  should  be  sold  subject  to  the  judg- 
ments, taxes,  and  other  claims.  Held,  tliat 
it  v:as  within  the  power  of  the  court  so  to 
amend  the  decree.  Turner  v.  Indianapolis, 
B.  &*  W.  R.  Co.,  8  Biss.  (U.  S.)  380. 

Plaintiff  filed  a  bill  to  have  a  receiver  for 
a  railroad  appointed,  and  to  have  a  certaui 
claim  declared  a  lien  prior  to  certain  mort- 
gages on  the  road.  After  the  receiver  liad 
been  appointed  and  taken  charge  of  the 
property  the  court  declared  plaintiff's  claim 


JUDGMENT;   DECREE,  44. 


103 


a  lien,  but  made  it  subordinate  to  the  mort- 
gages. Plaintiff  gave  a  supersedeas  bond 
and  appealed  from  the  whole  decree,  and  at 
a  subsequent  term  the  court  modified  the 
deiiee  by  directing  the  property  to  be 
turned  over,  pending  the  appeal,  to  the 
mortgage  trustee  under  a  provision  of  tlie 
mortgage  that  the  trustee  miglit  take  pos- 
session upon  default  of  payment  of  the  debt 
saciired.  HfM,  that  it  was  error  thus  to  at- 
tempt to  modify  the  decree  at  a  subsequent 
tarm  after  an  appeal  had  been  perfected. 
J/i»j,ra»'s  L.  &^  T.  A\  &-  S.  Co.  v.  Texas  C. 
a:  Co.,  32  Fdtf.  Rep.  525. 

Plaintiff's  cotton  was  burned  in  cars  of 
defendant;  there  were  several  bills  of  lading 
for  the  shipment ;  judgment  for  plaintiff. 
The  trial  judge,  in  making  up  the  amount, 
omitted  one  of  the  bills  of  lading  (for  six 
bales).  The  railroad  company  appealed. 
After  appeal  and  at  the  next  term  of  court 
plaintiff  obtained  an  order  on  motion 
amending  the  judgment  and  adding  tiie 
Viilue  of  the  six  bales.  The  supreme  court 
refused  to  recognize  the  amended  judgment 
in  the  appeal.  The  judgment  as  originally 
entered  was  affirmed,  and  paid  by  the 
company.  Plaintiff  obtained  execution  on 
the  amended  judgmetit  for  six  bales.  In- 
junction was  applied  for  by  the  company, 
and  on  hearing  dissolved.  Held,  on  writ  of 
error  that  the  oversight  of  \.\w  court  was 
not  of  that  character  tiiat  could  be  corrected 
after  the  term  by  motion  under  the  statute ; 
it  was  a  judicial  mistake,  and  could  be  cor- 
rected only  by  motion  for  new  trial  or  ap- 
peal. The  recollection  of  the  trial  judge 
explanatory  of  the  order  was  not  available 
in  the  motion  to  amend.  Correction  of  a 
Midgnient  after  the  term,  under  the  statute, 
can  only  be  by  what  appears  in  tiie  rec- 
ird.  The  bill  of  lading  attached  to  the  pe- 
tition for  the  six  bales  omit' ad  was  not  a 
part  of  the  record  from  which  amendment 
could  be  made.  Missouri  Pac.  R.  Co.  v. 
Hay  lies,  82  Tex.  448.  18  5.  IV.  Rep.  605. 

44.  Opening.— Where  a  nonresident 
railroad  corporation  has  not  been  personally 
served  with  summons  within  the  state,  and 
a  default  judgment  has  been  entered  in  the 
action,  the  court  has  power,  within  a  rea- 
sonable time,  when  it  finds  that  it  has  been 
deceived  by  a  false  return  of  such  service 
within  the  state,  to  quash  the  service  .of 
summons  and  open  the  default  and  judg- 
ment upon  motion  ;  and  it  is  not  necessary 
to  bring  an  independent  action  to  set  aside 


the  judgment.  Any  fact  going  to  show  the 
invalidity  of  the  judgment  can  be  presented 
at  the  hearing  of  the  motion.  Norton  v. 
Atchison,  T.  .S-  S.  F.  R.  6^97  Cal.  388,  30 
Pac.  Rep.  585,  32  Pac.  Rep.  452. 

A  judgment  note  was  given  for  money 
fraudulently  abstracted  from  the  treasury  of 
tlie  West  Pliiia.  Pass.  R.  Co.  On  an  appli- 
cation to  open  ttie  judgment  and  allow  de- 
fendants a  credit  thereon,  evidence  of  pay- 
ment to  officers  of  the  company,  who  were 
confederates  of  the  defendants  who  stole 
the  money,  is  not  proof  of  payment  to  the 
company,  and  no  credit  can  be  claimed  for 
such  payments.  West  Phila.  R.  Co.  v.  Nagle, 
12  Phila.  (Pa.)  228. 

A  refer-je  having  reported  a  schedule  of 
coupons  proved  before  him,  and  the  report 
in  this  particular  having  been  confirmed, 
without  exception,  on  circuit,  and  then  on 
appeal,  it  is  too  late  afterwards  to  raise  the 
point  on  circuit  that  certain  coupons  in- 
cluded in  such  report  had  been  before  that 
time  paid  by  the  debtor  corporation — that 
matter  being  necessarily  irivolved  in  tiie 
proof  of  the  coupons.  The  rule  is  not  va- 
ried where  other  issues  involved  in  the  liti- 
gation are  still  undecided.  Hand  v.  Savan- 
nah (S>»  C.  R.  Co.,  17  So.  Car.  219. 

The  application  for  a  recommittal  cannot 
be  sustained  under  the  act  to  vacate  erro- 
neous judgments,  because  not  made  within 
two  years;  nor  under  section  197  of  the 
code ;  nor  as  for  a  new  trial  on  after-discov- 
ered evidence,  for  the  reason  that  the  re- 
mittitur of  the  supreme  court  had  been  is- 
sued. Hand  v.  Savannah  &*  C.  R.  Co.,  17 
So.  Car.  219. 

An  action  was  commenced  to  recover 
damages  for  the  erection  of  an  elevated 
railway,  and  the  defendants  duly  appeared 
and  demanded  a  copy  of  the  complaint ; 
and  the  plaintiffs  were  given  two  years  and 
a  half  within  which  to  prepare  and  serve  a 
complaint.  At  the  end  of  such  time  plain- 
tiffs were  still  in  default,  and  no  attempt 
was  made  to  have  the  default  opened  for 
more  »han  five  years  longer,  when  they  ap- 
peareu  and  moved  to  open  the  default  on 
account  of  the  sickness  and  death  of  their 
attorney,  alleging  that  they  did  not  know 
for  several  years  that  a  complaint  had  not 
been  filed.  Held,  that  it  was  error  to  open 
the  default  simply  upon  the  payment  of  $10 
costs.  It  should  have  been  allowed  only 
upon  a  waiver  of  all  claim  for  damages  back 
of  six  years  from  the  time  it  was  allowed. 


104 


JUDGMENT;   DECREE,  43. 


i?«iii 


and  in  addition  the  payment  of  the  costs  of 
the  action  and  motion.  Ridley  v.  Manhat- 
tan R.  Co.,2S  N.  V.  Stipp.  380.  72  Hun  164. 
55  A^.  Y.  S.  R.  473- 

An  action  was  conimenced  against  a  rail- 
road company  for  tlie  loss  of  freights,  and 
the  citation  was  served  on  the  company's 
local  agent,  who,  by  mistake,  forwarded  it 
to  the  company's  general  freignt  agent  in- 
stead of  to  tlie  vice-president,  as  he  should 
have  done,  and  by  reason  of  the  delay  the 
company  was  defaulted.  Held,  that  the  de- 
fault should  be  set  aside  upon  the  company 
showing  that  it  had  a  meritorious  defense. 
Houston  &»  T.  C.  R.  Co.  v.  Burke,  9  Ant.  &* 
Eng.  R.  Cas.  59,  55  Tex.  323,  40  Am.  Rep. 
808. 

45,  Vacating.— An  affidavit  filed  by  a 
receiver  of  a  railway  company  to  vacate  a 
judgment  in  ejectment  against  the  com- 
pany, in  which  no  one  appeared  for  the 
company  at  the  trial,  and  which  alleges,  on 
information  and  belief,  that  plaintiflf,  by  a 
written  agreement,  in  consideration  of  the 
promise  of  the  company  to  pay  him  a  cer- 
tain sum,  sold  the  land  to  the  company, and 
that  he  has  reasonable  hopes  of  obtaining 
tlie  agreement  or  proving  its  contents,  but 
which  fails  to  show  that  the  co.isideration 
had  been  paid,  is  fatally  defective  in  not 
positively  showing  the  existence  of  such 
agreement,  and  in  not  showing  payment. 
Springfield  &^  N.  W.  R.  Co.  v.  Ros'.?,Z  III. 
179,  21  Am.  Ry.  Rep.  295. 

A  judgment  must  be  for  the  same  cause 
of  action  as  that  declared  on.  So  where  a 
party  sues  a  railroad  company  to  recover 
for  the  value  of  a  slave  which  it  vas  carry- 
ing by  direction  of  the  owner,  and  which  it 
is  charged  with  having  tortiously  lost,  a 
judgment  based  upon  the  liability  of  the 
carrier  under  a  contract  cannot  be  sus- 
tained. Harris  v.  Hannibal  &*  St.  J.  R. 
Co.,  37  Mo.  307. 

The  provision  of  N.  Y.  Code  Civ.  Pro. 
§  1207  that,  "where  there  is  no  answer,  the 
judgment  shall  not  be  more  favorable  to  the 
plaintiff  than  that  demanded  in  the  com- 
plaint "  is  intended  for  the  protection  of 
defendants  who  suffer  defaults,  and  cannot 
be  invoked  by  one  who  was  not  a  defendant 
or  interested  in  the  defense.  So  where  an 
action  is  brought  by  a  trustee  to  foreclose  a 
railroad  mortgage  for  the  benefit  of  bond- 
holders, and  th*^  amount  of  outstanding 
bonds  is  stated  at  less  than  the  amount 
found  by  the  referee,  such  provision  of  the 


statute  is  not  available  to  a  bondholder  who 
moves  to  set  aside  a  judgment  entered  on 
the  report  of  the  referee.  Peck  v.  New  York 
6-  A'.  /.  R.  Co.,  7  Am.  &•  Eitg.  R.  Cas.  422, 
85  A',  Y.  246;  disinissiiti^  appeal  from  22 
Hun  129,  mem.,  59  How.  Pr.  419. 

A  city  was  made  a  party  to  a  proceeding 
to  foreclose  a  railroad  mortgage  on  the 
supposition  that  the  city  had  some  claim  on 
the  property ;  but  the  city  failed  to  appear 
and  file  an  answer.  Held,  that  a  judgment 
which  assumed  to  adjudicate  certain  rights 
between  the  city  and  the  company,  and  re- 
citing that  the  latter  had  a  right  to  appro- 
priate parts  of  certain  streets  and  parks,  is 
properly  stricken  out,  where  the  complaint 
contains  no  allegations  as  to  such  matters. 
Vandenburgh  v.  A'cm  York  City  C.  U.  R. 
Co.,  25/.  &-  S.  285,  28  N.  Y.  S.  R.  578,  5  N 
Y.  Supp.  664. 

A  nonresident  corporation  was  sued  in  a 
New  York  court  and  service  was  had  upon 
a  director,  being  the  only  officer  of  the 
company  found  in  the  state,  a-'d  judgment 
was  taken  against  the  company.  About  a 
year  afterward  certain  directors  of  the  com- 
pany learned  of  the  judgment,  but  made  no 
motion  to  set  it  aside  until  some  two  years 
thereafter.  In  the  meantime  suit  had  been 
brought  on  the  jiulgincnt  in  another  state, 
and  the  compariy  answered,  admitting  the 
beginning  of  the  suit  in  New  York,  but 
pleaded  paytneiii,  but  judgment  was  taken 
against  the  ct^nipany.  //<•/(/,  that  it  was  too 
late  to  make  a  motion  to  set  aside  the 
first  judgment  on  the  ground  that  the 
court  did  not  have  jurisdiction.  McElroy 
V.  Continental  R.  Co.,  25  vV.  Y.  S.  R.  834,  53 
Hun  636,  mem.,  3  Silv.  Sup.  Ct.  327,  6  A^.  I'. 
Supp.  306. 

In  such  case  an  objection  that  the  service 
on  the  director  in  the  first  suit  was  not 
valid  because  the  company  had  no  property 
in  the  state,  and  that  the  cause  of  action 
presumably  arose  out  of  the  state,  cannot 
be  sustained  where  it  appears  that  the  ac- 
tion was  based  on  a  contract  which  was  en- 
tered into  in  the  state,  without  any  proof  to 
show  that  the  service  rendered  and  sued  for 
was  rendered  out  of  the  state.  McElroy  v. 
Continental  R.  Co.,  25  N.  Y.  S.  R.  834,  53 
Hun  636,  mem,,  3  Silv.  Sup.  Ct.  327,  6  A'.  Y. 
Supp.  306. 

A  lot  owner  sued  a  railroad  company  for 
d&manes  for  constructing  its  track  so  as  to 
throw  the  surface  water  against  the  lot  with 
a  greater  force  than  it  had  formerly  run. 


VI.  ENFOBC 


^^iW 


.^^fMiyitw^ss/:' 


JUDGMENT;  DECREE,  46-48. 


105 


The  evidence  showed  a  damage  of  $300  by 
wasliing  the  lot  and  the  fence  thereon,  and 
a  damage  of  $100  to  growing  trees  thereon. 
Plaintiff  admitted  that  the  water  had  run 
in  a  ditch  in  the  same  place  before  the  track 
was  constructed  and  had  so  washed  the 
ground  as  to  cause  the  fence  to  fall  down, 
l)ut  it  had  been  repaired,  but  after  the  rail- 
road was  constructed  no  further  repairs 
were  made.  Judgment  of  $300  was  ren- 
dered in  favor  of  the  plaintiff.  There  was 
nothing  to  show  that  the  damage  done  be- 
fore the  construction  of  the  road  was  not 
included  in  the  judgment.  //M,  for  that 
reason  that  the  judgment  should  be  set 
aside.  Texas  <S-  /'.  /?.  Co.  v.  Dunn,  {Tex.) 
17  5.  IV.  Kep.  822. 

VI.  ENFOBCEHENT ;  ACTIONS  ON  JUDG- 
MENTS. 

40.  Enforcement   by  execution.— 

A  personal  judgment  against  a  railway  com- 
pany must  be  enforced  against  the  entire 
railroad  by  a  sale  thereof,  and  not  by  a  sale 
of  an  isolated  part.  Farmers'  L.  &•  T.  Co. 
V.  Canada  &•  St.  L.  A\  Co.,  47  Aw.  &^  Eng. 
R.  Cas.  271,  127  Ind.  250,  26  A'.  E.  Kep.  784. 

A  judgment  for  damages  and  costs  was 
recovered  against  a  railway  company  for 
failing  to  construct  a  cattle-guard  where 
the  railway  enters  the  premises  of  the  judg- 
ment creditor,  and  when  the  judgment  was 
recovered  the  company  agreed  to  end  liti- 
gation, and  also  to  put  in  the  cattle-guard, 
and  to  pay  the  judgment  less  a  stated  sum 
within  thirty  days ;  in  which  event  the 
judgment  creditor  was  to  accept  the  sum 
so  agreed  on  in  full  payment  of  the  judg- 
ment and  costs.  Held,  that  the  time  within 
wiiich  the  cattle-guard  was  to  be  constructed 
and  the  payment  to  be  made  were  the  im- 
portant elements  of  the  agreement,  and  that, 
as  the  company  failed  to  comply  with  these 
conditions,  the  judgment  creditor  was  at 
liberty  to  enforce  by  execution  the  full  pay- 
ment of  the  judgment  as  rendered.  St. 
Louis  &*  S.  F.  R.  Co.  v.  Kierson,  38  Kan. 
359,  16  Pac.  Rep.  443. 

A  corporation  purchased  land  ultra  vires, 
mortgaged  all  its  property,  franchises,  etc., 
in  trust  to  secure  bonds ;  a  judgment  was 
afterwards  recovered  ;  all  the  property,  etc., 
of  the  corporation  was  afterwards  sold  by 
the  trustee  under  a  decree  in  equity,  and 
afterwards  the  land  was  sold  under  the 
judgment.     Held,  that  the  purchasers  under 


the  judgment  took  no  title.     Yottngman  v. 
Elmira  6-  VV.  R.  Co.,  65  Pa.  St.  278. 

47.  Actions  on  judt^nients,  gener- 
ally.— A  shipper  who  assigns  a  bill  of  lad- 
ing whereby  he  agrees  to  deliver  certain 
goods,  and  for  a  failure  to  fulfil  his  agrro- 
ment,  owing  to  the  default  of  the  carrier, 
has  a  judgment  rendered  against  him,  can- 
not maintain  an  action  on  sucli  judgment 
against  the  carrier,  although  tlie  carrier  was 
notified  of  the  pendency  of  the  action  in 
which  the  judgment  was  rendered,  and  re- 
quested to  defend',  for  the  reason  that  the 
carrier  could  not,  had  it  been  a  party  to  the 
action,  have  set  up  the  defenses  available  as 
against  the  shipper.  Garrison  v.  Babbage 
Transp.  Co.,  32  Am.  &^  Eng.  R.  Cas.  525,  94 
Mo.  130,65.  W.Rcp.  701. 

48.  Bill  to  enforce  lien.— Where  two 
judgments  are  obtained  against  a  railroad 
company,  and  the  assignee  of  the  older 
judgment  files  a  bill  against  another  com- 
pany, who  has  come  into  possession  of  the 
road,  to  enforce  the  lien  of  his  judgment, 
the  holder  of  the  junior  judgment  is  not  a 
necessary  party,  though  he  has  filed  and 
recorded  a  sheriff's  deed  for  the  property 
made  in  pursuance  of  an  execution  sale 
under  his  judgment.  Howard  v.  Milwau- 
kee  &-  St.  P.  R.  Co.,\o\  U.  S.  837. 

In  such  a  case  the  holder  of  the  older 
judgment  cannot  maintain  ejectment 
against  the  purchasers  of  the  road  in  pur- 
suance of  a  decree  directing  its  sale  to 
satisfy  the  senior  judgment.  Howard  v. 
Mihoaukee  6-  St.  P.  R.  Co.,  loi  U.  S.  837. 

The  purchasers  of  a  railroad  at  a  fore- 
closure sale  filed  a  bill  in  a  U.  S.  circuit 
court  to  set  as'ue  a  judgment  and  a  lease  of 
the  road,  on  the  ground  that  the  judgment 
was  confessed  by  the  company  before  the 
sale  to  hinder  and  delay  creditors,  and  that 
the  lease  was  but  to  secure  the  judgment. 
Another  company  filed  a  cross-bill  setting 
up  that  it  had  become  the  owner  of  the 
judgment  and  lease,  and  asked  that  the 
road  be  sold  to  satisfy  them.  Tlie  court, 
among  other  things,  dismissed  the  cross- 
bill on  the  ground  that  the  complainants  in 
both  the  original  and  cross  bill  were  resi- 
dents of  the  same  state.  The  alleged  fraud- 
ulent judgment  was  confessed  in  the  same 
court.  Held,  that  it  was  error  to  dismiss 
the  cross-bill.  It  being  filed  to  enforce  the 
judgment,  it  must  be  in  the  same  court. 
Milwaukee  6-  M.  R.  Co,  v.  Chamberlain,  6 
Wall.  (t/.  5.)748. 


106 


JUDGMENT;   DECREE,  49,  50.— JUDICIAL   SALE,  1-4. 


'!?™i 


49.  Decree  diro<;tiii{;  Judicial  sale. 

— A  decree  directing  a  judicial  sale  of  the 
franchises,  etc.,  of  a  railroad  company  pro- 
vided :  "  Any  purchaser  *  *  *  shall  take 
*  *  *  subject  to  all  unpaid  purchase  money 
(or  any  of  the  lands  or  rights  of  way  herein 
referred  to,  as  well  as  also  all  unpaid  claims 
of  landowners  for  damages  for  property 
taken,  injured,  or  destroyed  in  the  construc- 
tion of  the  railroad."  Held,  that  a  judg- 
ment against  the  company  whose  franchises 
were  thus  sold,  recovered  before  the  sale,  in 
trespass  for  entering  upon  plaintiff's  land 
and  constructing  its  road,  cannot  be  re- 
covered in  assumpsit  against  the  company 
purchasing  under  said  decree,  especially 
when,  after  the  judgment  and  before  the 
sale,  the  plaintiff  had  granted  a  right  of  way 
to  the  old  company.  Campbell  v.  Pitts- 
burgh <S-  W.  R.  Co.,  46  Am.  &•  Etig.  li. 
Cas.  353,  137  Pa.  St.  574,  2r^  Atl.  Rep.  949-— 
Distinguishing  Western  Pa.  R.  Co.  v. 
Johnston,  59  Pa.  St.  290 ;  Buffalo,  N.  Y.  & 
P.  R.  Co.  V.  Harvey,  107  Pa.  St.  319. 

50.  Ei^oiuiiij;  eufurcemeut.— Where 
a  judgment  is  recovered  against  a  mort- 
gaged railroad  in  a  state  court,  for  obliga- 
tions incurred  by  the  company  in  operating 
the  road,  a  federal  court  will  not  enjoin  a 
levy  of  execution  upon,  and  the  sale  of  a 
portion  of,  the  mortgaged  property,  on  the 
application  of  mortgage  creditors ;  but  will 
allow  the  sale  to  be  made  subject  to  the 
mortgage.     Eells  v.  Johann,  27  Fed.  Rep. 

327- 

A  railway  company  recovered  a  judgment 
on  a  subscription  for  eight  of  its  bonds, 
secured  by  mortgage  on  forty  shares  of 
stock,  the  company  having,  before  judg- 
ment, disposed  of  all  its  bonds,  so  that  it 
was  out  of  its  power  to  deliver  the  same  on 
payment  of  the  judgment.  The  company 
was  insolvent.  Held,  that  the  subscriber 
had  the  right  to  have  the  market  value  of 
the  bonds  at  the  time  the  company  put  it 
out  of  its  power  to  deliver  them  credited 
upon  the  judgment,  and  if  that  sum,  with 
other  payments  or  credits,  exceeded  the 
judgment,  to  have  its  further  collection  per- 
petually enjoined.  Galena  &•  S,  W.  R.  Co. 
V.  Ennor,  123  ///.  505,  14  N.  E.  Rep.  673,  12 
West.  Rep.  761. 


JUDGMENT  CBEDITOBS. 
Priority  of,  on  distribution  in  foreclosure,  see 
Mortgages,  277,  278. 


Relation  of  directors  to,  see  Dirkctors,  etc., 

<(4. 
When  entitled  to  land  damages,  see  Eminent 

Domain,  443. 


JUDICIAL  NOTICE. 
Generally,  see  Eviuknce,  08-115. 
In  actions  for  injuries  caused  by  negligence 

of  fellow-servants,  see  Fellow-sekvants, 

474. 
—  stock-killing  cases,  see  Animals,  Injuries 

to,  407. 


JUDICIAL  SALE. 

Enforcement  of  judgment  by  decree  direct- 
ing, see  also  Judgment,  40. 

Exemption  from  taxation,  when  passes  to 
purchaser  at.  see  Taxation,  15G. 

Redemption  by  purchaser  at,  see  Mortgages, 
.'il3. 

1.  When   proper— Time  of  sale.— 

Where  the  proceeding  is  to  sell  an  insolvent 
railroad, and  the  rightsof  the  several  classes 
of  creditors  have  been  determined,  and  the 
condition  of  the  road  demands  an  early  sale, 
it  will  not  be  postponed  until  the  interests 
of  the  different  individual  creditors  have 
been  determined,  and  the  classes  to  which 
their  claims  belong  have  been  ascertained. 
Hands.  Savannah  <3^  C.  R.  Co.,  12  Am.  (S~» 
Eng.  R.  Cas.  488,  1 3  So.  Car.  467. 

2.  What  may  be  sold.— Where  the 
right  of  the  public  to  maintain  the  continu- 
ity of  a  public  highway  (as  well  as  the  rights 
of  other  parties  interested)  precludes  the 
right  to  sell  a  section  of  a  railroad,  a  neces- 
sity at  ises  to  decree  the  sale  of  the  whole 
road,  in  order  that  equity  may  be  done. 
Dayton,  X.  &•  B.  R.  Co.  v.  Lewton,  20  Ohio 
St.  401. 

3.  Conduct  of  the  sale.-— Where  iin 
officer,  who  conducts  a  public  sale,  pursu.int 
to  an  order  of  the  chancellor  in  the  intelli- 
gent and  bona  fide  exercise  of  his  discretion, 
refuses  an  adjournment,  his  action  will  not 
constitute  a  reason  why  the  sale  shall  not 
be  confirmed.  Bethlehem  Iron  Co.  v.  Phila- 
delphia 6m  S.  S.  R.  Co.,  49  N./.  Eq.  356,  23 
Atl.  Refi.  \QrjT. 

4.  Rights  of  bidders  as  such.  .\ 
bidder  at  a  railway  sale  will  not  he  diprixcd 
of  the  advantage  of  his  bid  because  otlicr 
persons  offered  to  bid,  upon  a  resale,  twenty- 
one  per  cent,  more  for  the  property.  Beth- 
lehem Iron  Co.  V.  Philadelphia  <S-  S.  S.  R. 
Co.,  49  N.  J.  Eq.  356,  23  Atl.  Rep.  1077- 


JUDICIAL   SALE,  5,  6.— JURISDICTION. 


107 


Reviewing  Delaware,  L.  &  W.  R.  Co.  v. 
Scranton,  34  N.  J.  Eq.  429. 

Upon  the  sale  of  a  railroad,  it  is  custom- 
ary and  reasonable  to  require  cash  sufficient 
to  pay  costs  and  other  claims  demanding 
inunediate  payment.  But  the  officer  con- 
ducting the  sale  should  not  be  authorized 
10  exact  a  cash  advance  previous  to  the 
close  of  the  biddings.  Hands.  Savannah 
^^  C.  /\\  Co.,  12  Am.  &*  Eng.  A',  Cas.  488, 
1 3  So.  Car.  467. 

5.  Iiiipeacliingr  validity  of  sale. — A 
proceeding  to  homologate  a  sheriff's  sale  of 
a  railroad,  under  the  laws  of  Louisiana,  is 
not  conclusive  of  the  question  whether  the 
purchasers  obtained  title  by  fraud,  and  only 
held  as  trustees  mala  fide  for  others,  when 
such  question  is  raised  by  a  proceeding  in 
equity  to  set  aside  such  sale.  Jackson  v. 
Ludeling,  21  Wall.  {U.  S.)  6i6,  6  Am.  />. 
Nefi.  457. 

Mere  Inadequacy  in  the  price  bid  at  a 
fairly  and  regularly  conducted  judicial  sale 
will  not  justify  refusal  to  confirm  the  sale. 
Bethlehem  Iron  Co.  v.  Philadelphia  t3»  S.  S. 
R.  Co..  49  JV.  J.  Eq.  356,  23  All.  Rep.  1077. 

6.  Uiffhts  of  imrchasers.— Purchasers 
of  a  railroad  at  a  judicial  sale  have  a  right 
to  be  heard  on  matters  concerning  the  con- 
firmation or  setting  aside  the  sale,  and  may 
appeal  from  an  order  touching  such  matters. 
Blossom  v.  Milwaukee  iS-  C.  R.  Co.,  \  Wall. 
(U.  S.)  655. — Followed  in  Kneeland  v. 
American  L.  &  T.  Co.,  136  U,  S.  89. 

Pending  such  appeal  the  trial  court  may 
make  such  orders  as  are  necessary  to  pre- 
serve the  property,  and  order  the  payment 
of  cost  of  running,  but  further  than  this 
the  property  and  revenues  should  be  held 
until  a  final  decree.  Bronson  v.  La  Crosse 
6-  M.  R.  Co.,  I  Wall.  ( U.  S.)  405. 

And  equity  will  not  permit  a  new  com- 
pany, organized  by  such  purchasers,  to  take 
a  better  title  than  the  purchasers  had. 
Jackson  v.  Ludeling,  21  Wall.  {U.  S.)  616,  6 
Am.  Ry.  Rep.  457. 


JUNCTION. 
Of  two  railroads,  location  of  station  at,  see 
Stations  and  Depots,  22. 

See  Crossing  of  Railways. 


JURISDICTION. 

Averment  of  facts  showing,  see  Eminent  Do- 
main, 312. 


Conflict  of,  as  to  appointment  of  receivers, 

see  Receivers,  4. 
Demurrer  for  laclc  of,  see  Pleading,  05. 
Denying  injunction  for  want  of,  see  Eminent 

Domain,  lOliO. 
Effect  of  appearance  to  confer,  see  Appeak- 

ANCK.  ;j;  Foreign  CoRPOKATioNS,  lO. 
want  of  leave  to  sue  receiver  upon,  i-ee 

RlCKIVERS,    126. 

Impeaching  judgment  for  lack  of,  see  Judg- 
ment, 35. 
In  attachment,  see  Attachmei.t,  etc.,  1-5. 

—  bankruptcy,  see  Bankruptcy,  2. 

—  condemnation  proceedings,  petition  when 

sufficient  to  confer,  see  Eminent  Domain, 
329,  330. 

—  insolvency,  see  Insolvency,  1. 

—  quo  warranto,  see  Quo  Warranto,  2. 
Judgment  of  no  force    in   absence  of,   see 

Judgment,  12. 

Judicial  notice  of  matters  affecting,  see  Evi- 
dence, 107. 

Luring  defendant  within,  in  order  to  serve 
process,  see  Process,  21.  • 

Objection  to.  how  to  be  taken,  see  Aiteal 
AND  Error,  JM)  ;  Eminent  Domain,  O  lO. 

Of  actions  against  carriers,  see  Carriagi:  ok 
LivE  Stock,  134;  Carriage  of  M^.r- 
cHANDisE,  093  ;  Express  Companies, 
80. 

receivers,  see  Receivers,  131. 

at  law,  by  abutters,  for  i.ijury  sustained 

by  railway  in  street,  see  Streets  and 
Highways,  234. 

by  and  against  foreign  corporations,  see 

Foreign  Corporations,  15,  10. 

for  causing  death,  see  Death  by  Wrong- 
ful Act,  105-124. 

damages  caused  by  fires,  see  Fires, 

130. 

infringement  of  patents,  see  Patents 

FOR  Inventions,  14. 

killing  or  injuring  stock,  see  Ani- 
mals, Injuries  to,  289-290. 

loss  of  baggage,  see  Baggage,  104. 

goods  carried,  see  Carriage  of 

Merchandise,  124. 

specific    performance,    see   Specific 

PE.'iFORMANCE,  21. 

taxes,  see  Taxation.  31 1. 

on  corporate  bonds,  see  Bonds,  61. 

coupons,  see  Coitpons,  1 6. 

fire  policies,  see  Fire  Insurance,  lO. 

to  cancel  railway  aid  bonds,  see  Mu- 
nicipal AND  Local  Aid,  399. 

enforce  p.^nalties,  see  Penalties,  9. 

stockholders'  liability  to  credi- 
tors, see  Stockholders,  50. 

subscriptions  to  stock,  see  Sub- 
scriptions TO  Stock,  80. 


108 


JURISDICTION,  1-3. 


:#« 


Of  actions  to  enjoin  unlawful  taxation,  see 

Taxation,  345,  340. 
foreclose   mortgages  and  deeds  of 

trust,  see   Deeds  ok  Trust,   15;  Mokt- 

(lAGEs,  108-174. 
redeem  from  mortgages,  see  Mort- 

CACiliS,  310. 

—  arbitrators,  see  Arbitration  and  Award, 

8. 

—  commissioners,  to  investigate  complaints 

of  unjust  preference,  see  Railway  Com- 
missioners, 12> 

under  working  agreements,  see  Leases, 

ETC.,  137,  138. 

—  condemnation  proceedings,  see  Eminent 

Domain,  238-1252. 
county  judge,  in  municipal  aid  matters, 

see  MuMCii'AL  ANu  Local  Aid,  71. 
courts,  effect  of  submission  to  arbitration 

upon,  see  Arbitration  and  Award,  4 ; 

Construction  of  Railways,  07. 

—  criminal  prosecutions,  see  Criminal  Law, 

4. 
• —  equity,  what  is  within,  see  Equity,  1-25. 

—  federal  courts,  see  Federal  Courts,  1- 

13;  Interstate  Commerce,  150,  157; 
Municipal  and  Local  Aid,  387;  Plead- 
ing, 11. 

—  justices'  courts,  see  Animals,  Injuries  to, 

606-009;  Justice  of  the  Peace,  1- 
10. 

—  proceedings  by  creditors'  bill,  see  Credi- 

tors' Bill,  4. 

for  violation  of  injunction,  see  Injunc- 
tion, 58. 

to  condemn  right  to  cross  railroad,  see 

Crossing  of  Railroads,  25. 

enforce  laborer's  lien,  see  Liens,  50. 

foreclose  mechanic's  lien,  see  Liens, 

38. 

—  state  courts,  under  interstate  commerce 

law,  see  Interstate  Commerce,  158. 

—  U.  S.  supreme  court,  see  Federal  Courts, 

17-25o 

On  appeal,  and  how  exercised,  see  Appeal 
AND  Error,  29-128;  Eminent  Domain, 
892-»2». 

from  justice,  as  dependent  upon  amount, 

see  Justice  of  the  Peace,  12. 

or  error  in  foreclosure  suits,  see  Mort- 
gages, 294K 

—  certiorari,  see  Certiorari,  7. 

—  error,  as  dependent  on  amount,  see  Emi- 

nent Domain,  904. 
Over  ferry-boats',  see  Admiralty,  1. 
Presumption  that  common  law  is  enforced 

in  foreign,  see  Evidence,  132. 
Service  of  process  out  of,  see  Process,  43. 
To  call  an  election,  see  Municipal  and  Local 

Aid.  09. 


To  compel  issuance  and  delivery  of  railway 
aid  bonds,  see  Municipal  and  Local  Aid, 
285. 

—  enforce  assessments  for  local   improve- 

ments, see  Street  Railways,  297. 

—  enjoin  nuisances,  see  Nuisance,  18-22. 

—  grant  writs  of  mandamus,  see  Mandamus, 

25. 

—  hear  applications  for  new  trials,  see  New 

Trial,  98. 

—  remove  receivers,  see  Receivers,  lOG. 

—  take  receiver's  account,   see  Receivers, 

147. 

1.  Generally. — A  court  can  acquire  a 
limited  jurisdiction  in  an  action  by  the  al- 
lowance of  a  provisional  remedy ;  but  juris- 
diction does  not  become  complete  until  the 
service  of  a  summons  in  some  of  the  modes 
prescribed  by  law,  or  by  the  voluntary  ap- 
pearance of  the  defendant.  IValdron  v. 
Chicago  6-  A^.  IV.  K.  Co.,  i  Dak.  {Bennett) 
536,  46  N.  \V.  Rep.  456. 

2.  Cannot  be  conferred  by  con- 
sent.— Consent  cannot  give  courts  juris- 
diction, but  where  a  suit  was  begun  in  a 
U.  S.  circuit  court  to  foreclose  a  railroad 
mortgage,  and  all  the  original  parties  were 
citizens  of  the  same  state,  which  would  de- 
prive the  court  of  jurisdiction,  but  no  ad- 
vantage was  taken  of  it,  and  other  parties 
came  in  and  were  made  defendants,  so  that 
at  the  time  a  decree  of  foreclosure  was  en- 
tered it  was  "  a  controversy  between  citi- 
zens of  dififerent  states,"  as  required  by  the 
act  of  1875 — held,  that  the  court  had  juris- 
diction at  the  time  the  decree  was  entered, 
which  was  sufficient.  Pacific  R.  Co.  v. 
Ketchum,  loi  U.  S.  289.— FOLLOWED  in 
Barry  v.  Missouri,  K.  &  T.  R.  Co.,  29  Am. 
&  Eng.  R.  Cas.  384,  27  Fed.  Rep.  i. 

Where  the  court  has  not  otherwise  juris- 
diction, the  appearance  of  the  defendant 
corporation  and  filing  an  answer  on  the 
merits  will  not  give  the  court  jurisdiction, 
as  that  would  be  equivalent  to  conferring 
jurisdiction  by  consent,  which  cannot  be 
done.  St.  Louis  R.  Co.  v.  Pacific  R.  Co.,  52 
Fed.  Rep.  770. 

3.  Once  obtained  will  be  retained. 
— The  court  which  first  obtains  jurisdiction 
of  a  controversy,  and  thereby  of  the  res,  is 
entitled  to  retain  it  until  the  litigation  is 
settled ;  but  it  is  not  essential  that  the 
court  first  acquiring  jurisdiction  of  the  con- 
troversy should  also  first  take  possession  of 
the  res.  Gaylord  v.  Ft.  Wayne,  M.  &•  C.  R. 
Co.,6Biss.  {(/.  S.)  286. 


r 

iama  G. 
So.  Rep.  7 
Where 
company 
transfer  o 
that  state 
based  apo 
Y.  Code.  J 
also  a  foi 
eral  Triis 
32  //««  (. 
668.  ntetn. 
A    com 
other    roa 
tracks  ent 
built   for 
depot  owi 
tion  of  fre 
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and  is  lie 
situated 
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Marietta  > 
A  railrc 
United  Sti 
where  witi 
has  a  legs 


JURISDICTION,  4. 


109 


There  is  a  manifest  propriety,  if  not  ne- 
cessity, for  holding  that  the  court  which 
first  acquires  jurisdiction  over  a  contro- 
versy sliouid  maintain  it  undisturbed  by 
the  interference  of  any  other  co-ordinate 
jurisdiction.  Texas  Trunk  A'.  Co.  v.  Lewis, 
8i  Tex.  I,  l6  S.  W.  Rep.  647. 

When  tiie  jurisdiction  of  a  state  court 
has  once  attached  to  a  suit,  no  subsequent 
change  in  the  condition  or  residence  of  a 
party  can  oust  it  without  express  provision 
to  that  effect.  Hence  the  court  refused  an 
application  to  remove  into  a  federal  court  a 
suit  brought  by  a  citizen  of  this  and  a  citi- 
zen of  another  state  against  defendants, 
some  of  whom  were  citizens  of  this,  and 
some  citizens  of  another,  state,  made  on 
the  ground  of  the  death  of  the  nonresi- 
dent complainant.  Upton  v.  New  Jersey 
Southern  R.  Co.,  25  A^.  /.  Eq.  372. 

4.  As  dependent  upon  the  resi- 
dence of  the  parties.— I'he  Alabama 
Great  Southern  R.  Co.  being  a  domestic 
corporation,  an  action  may  be  maintained 
against  it  in  Alabama  to  recover  damages 
for  injuries  to  cattle  transported  over  its 
road  under  a  contract  made  in  Alabama, 
although  the  injury  occurred  at  Meridian, 
Mississippi,  the  terminus  of  its  road.  Ala- 
bama G.  S.  R.  Co.  V.  Thomas,  89  Ala.  294,  7 
So.  Rep.  762. 

Where  the  stock  of  a  foreign  railroad 
company  is  wrongfully  transferred  at  a 
transfer  office  in  New  York,  the  courts  of 
that  state  have  jurisdiction  of  an  action 
based  upon  the  wrongful  transfer,  under  N. 
Y.  Code,  §  1780,  though  the  injured  party  is 
also  a  foreign  corporation.  Toronto  Gen- 
eral Trust  Co.  V.  Chicago,  B.  &*  Q.  R.  Co., 
32  Nun  {N.  V.)  190;  affirmed  in  96  A'^,  Y. 
668.  mem. 

A  company  having,  by  contract  with 
other  roads,  a  right  of  way  over  their 
tracks  entering  Cincinnati,  and  which  has 
built  for  itself  a  side  track  leading  to  a 
depot  owned  and  used  by  it  for  the  recep- 
tion of  freight  in  that  city,  is  warranted  in 
locating  one  of  its  principal  offices  there, 
and  is  liable  to  process  as  a  corporation 
situated  in  the  city  of  Cincinnati,  and  sub- 
ject to  the  jurisdiction  of  the  Cincinnati 
superior  coutt.  Athens  Branch  Bank  v. 
Marietta  &»  C.  R.  Co.,  2  Disney  {Ohio)  425. 

A  railroad  corporation  chartered  by  the 
United  States  has  a  legal  existence  every- 
where within  the  United  States;  and  hence 
has  a  legal  existence  in  one  of  the  states, 


and  may  be  sued  in  its  courts  wherever 
service  can  be  had.  Eby  v.  Northern  Pac. 
R.  Co.,  13  Phila.  (Pa.)  144, — REVIEWING 
Lehigh  C.  &  N.  Co.  v.  Lehigh  Boom  Co.,  12 
Phila.  540. 

The  defendant  corporation  exists  and  is 
operatins^  its  railroad  under  and  by  virtue  r>f 
acts  of  the  legislature  of  Vermont  and  Mas- 
sachusetts respectively.  Its  railroad  is  lo- 
cated wholly  within  the  two  states,  being 
partially  in  each.  Therefore  the  courts  of 
Vermont  as  well  as  the  courts  of  Massa- 
chusetts have  jurisdiction  of  this  corpora- 
tion. Richardson  v.  Vermont  &•  M.  R.  Co., 
44  F/.  613,  I  Am.  Ry.  Rep.  115. 

Where  a  Texas  railway  corporation,  do- 
ing business  also  in  the  Indian  Territory, 
is  guilty  of  negligence  there,  the  rules  of 
sound  policy  do  not  require  that  the  courts 
of  Texas  should  decline  to  entertain  juris- 
diction of  a  suit  brought  for  damages  of  a 
personal  character  resulting  from  such  neg- 
ligence, especially  where  it  is  not  clear  that 
plaintiff  is  not  also  a  citizen  of  Texas. 
IVestern  Union  Tel.  Co.  v.  Phillips,  2  Tex. 
Civ.  App.  608,  21  S.  IV.  Rep.  638. 

The  laws  of  the  Indian  Territory,  wherein 
the  defendant  corporation  received  for 
transmission  the  telegraph  message  which 
it  negligently  failed  there  to  deliver,  do  not 
give  jurisdiction  to  any  of  its  courts  over 
suits  for  damages  in  such  cases;  but  they 
do  not  declare  such  contracts  illegal,  or 
render  such  act  of  negligence  lawful. 
Ne/d,  that  the  failure  to  provide  a  remedy 
there  will  not  deprive  the  injured  party  of 
all  right  and  remedy  elsewhere  for  the  vio- 
lation of  the  contract,  or  for  damages  for 
personal  injuries,  recognized  as  such  by 
universal  law,  resulting  from  such  negli- 
gence; and  the  defendant  being  a  Texas 
corporation,  and  the  contract  with  which  it 
identified  itself  by  receiving  the  message 
having  been  entered  into  by  its  connecting 
line  in  Texas,  the  courts  of  this  state  will 
not  withhold  redress  for  its  violation. 
Western  Union  Tel.  Co.  v.  Phillips,  2  Tex. 
Civ.  App.  608,  21  S.  W.  Rep.  638.— QUOT- 
ING Willis  V.  Missouri  Pac.  R.  Co.,  61  Tex. 

433- 

Where  a  person  domiciled  in  Scotland 
has  a  cause  of  action  which  arose  in  Lng- 
land  against  an  English  railway  company, 
and  attaches  debts  belonging  to  such  com- 
pany for  the  purpose  of  having  the  question 
tried  in  Scotland,  the  Scotch  courts  have 
jurisdiction.     London  <S-  N.  W.  R.  Co.  v. 


110 


JURISDICTION,  5,0. 


fj 


Lindsay,  3  Macq.  H.  L.  Cas.  99,  4  Jur.  N. 

S.  343- 

5.  As  (Icpcudcnt  upon  the  place  of 
business  of  the  defendant.— Tlie  pro- 
vision of  N.  Y.  Act  of  1862,  §  23,  that  "  no 
person  who  shall  have  a  place  of  business 
in  the  city  of  New  York  shall  be  deemed  to 
be  a  nonresident,"  includes  corporations; 
and  a  corporation  having  such  place  of 
business  in  the  city  must  be  sued  by  what 
is  known  as  "  the  lonj;  summons,"  Jay 'V. 
Lon^  Island  R.  Co.,  2  Daly  (iV,  Y.)  401. 

The  city  court  of  Brooklyn  has  no  juris- 
diction of  an  action  against  a  corporation 
for  negligence  as  a  common  carrier,  where 
the  cause  of  action  arose  and  the  business 
of  the  corporation  was  transacted  and  its 
offices  located  outside  of  the  limits  of  the 
city.  Landers  v.  Staten  Island  R.  Co.,  53 
iV.  Y.  450,  14  Abb.  Pr.  N.  S.  346;  m'crsing 
13  Abb.  Pr.  N.  S.  338.— Followed  in 
Wheelock  v.  Lee,  74  N.  Y.  495. 

A  railway  company  "  dwells"  within  the 
meaning  of  9  &  10  Vict.  c.  95,  s.  128,  which 
gives  concurrent  jurisdiction  to  the  superior 
courts  where  the  plaintiff  dwells  more  than 
twenty  miles  from  the  defendant  at  the  place 
where  it  has  its  principal  station,  where  the 
directors  meet,  the  secretary  resides,  gen- 
eral meetings  are  held,  and  whence  orders 
emanate.  Adams  v.  Great  Western  R.  Co., 
6  H.  &^  N.  404.  9  W^.  ^-  254,  3  L.  T. 
631. 

A  railway  company  carries  on  business 
only  at  the  place  where  the  general  man- 
agement is  carried  on,  and  a  station  how- 
ever important,  so  long  as  those  under 
whose  supervision  it  is  are  themselves  un- 
der superior  control,  is  not  within  section 
60  of  9  &  10  Vict.  c.  95.  Brown  v.  Lon- 
don &>  N.  W.  R.  Co.,  ^B.&*S.  326,  10  Jur. 
N.  S.  234.  5.  P.,  S/tt'els  V.  Great  Northern 
R.  Co.,  7  Jur.  N.  S.  631,  30  L.J.  Q.  B.  331. 
9  W.  R.  739. 

A  railway  company  whose  principal  sta- 
tion and  business  office  is  outside  the  city 
v>(  London,  although  it  has  a  station  within 
the  city,  does  not  carry  on  business  within 
the  jurisdiction  of  the  Lord  Mayor's  court 
within  the  meaning  of  section  12  of  The 
Mayor's  Court  Extension  Act  1857.  Le 
Tailleur  v.  South  Eastern  R.  Co.,  L.  R.  3  C. 
P.  D.  1 8. 

A  railway  company  does  not  carry  on 
business  at  a  booking  office  kept  by  an 
agent  for  the  receipt  and  booking  of  pack- 
ages for  all  railways.    Minor  v.  London  &» 


N.  W.  R.  Co.,  I  C.  B.  N.  S.  22$,  2  Jur.  N. 

s.  1168, 26z.y.  c.  p.  39. 

A  place  where  a  railway  company  super- 
intends and  manages  its  business  is  the 
place  where  it  carries  on  business  within 
the  meaning  of  section  12  of  the  Mayor's 
Court  Procedure  Act.  This  place  is  not 
necessarily  at  its  chief  office.  Rogers  v. 
London,  C.  &*  D.  R.  Co.,  26  W.  R.  192. 

A  railway  company  carries  on  its  business 
at  its  principal  station,  and  without  leave  of 
court  cannot  be  sued  in  the  district  of  one 
of  its  intermediate  stations,  although  the 
cause  of  action  arises  there.  Shiels  v. 
Great  Northern  R.  Co.,  T  Jur.  N.  5.  631,  30 
L.J.  !2.  ^.  331.  4  /.-  T.  479.  S.  P.,  Brown 
V.  London  &*  N.  IV.  R.  Co.,  4  B.  &^  S.  326, 
10  Jur.  N.  S.  234. 

6.  As  dependent  upon  state  lines. 
— (i)  Alabama. — An  action  cannot  be  main- 
tained against  a  railroad  corporation  in 
Alabama  for  a  tort  committed  in  Missis- 
sippi, unless  the  tort  was  actionable  at  com- 
mo'  law,  or  is  shown  to  be  actionable  by 
statute  in  Mississippi.  A'ahlv.  Memphis Si^ 
C.  R.  Co.,  95  Ala.  337,  10  So.  Rep.  661. 
Helton  V.  Alabama  Midland  R.  Co.,  97  Ala. 
275,  12  So.  Rep,  276. 

A  passenger  traveling  on  a  railroad  in 
Georgia,  where  he  resided,  between  the 
cities  of  Macon,  Georgia,  and  Eufaula,  Ala- 
bama, cannot  maintain  an  action  in  the 
courts  of  Alabama,  against  the  Georgia 
railroad  company  as  a  common  carrier,  for 
personal  injuries  sustained  in  Georgia. 
Central  R.  &•  B.  Co.  v.  Carr,  23  Am.  &*  Eng. 
R.  Cas.  487,  76  Ala.  388. 

Whether  a  railroad  company,  incorpo- 
rated in  Georgia,  and  extending  its  busi- 
ness into  Alabama,  can  be  there  sued  for  a 
breach  of  contract  to  be  performed  partly 
in  each  state,  is  not  decided.  Central  R. 
&•  B.  Co.  V.  Carr,  23  Am.  &*  Eng.  R.  Cas. 
487,  76  Ala.  388. 

(2)  Colorado. — Courts  do  not  take  judi- 
cial notice  nf  the  statutes  of  other  states ; 
they  must  be  proven  like  other  facts.  So 
where  a  railroad  is  sued  for  killing  stock  in 
another  state,  and  the  common  law  gives  no 
right  of  action  for  the  damage  claimed, 
there  can  be  no  recovery  without  proof  of  a 
statute  in  the  state  where  the  loss  occurred 
allowing  the  action.  Proof  of  such  statute 
in  the  state  where  the  action  is  brought  is 
not  sufficient.  Atchison,  T.  &*  S.  F.  R.  Co. 
v.  Betis,  31  Am.  &*  Eng.  R.  Cas.  563.  10 
Colo.  431,    IS  Pac.   Rep.   821.— Quoting 


:<x:  v,;^ 

^  ••:..;';-^^ 

■'."■>. 

1;' 

..H^ 

■, 

;.« 

,. 

JURISDICTION.  <{. 


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Whitford   v.   Panama    R.   Co.,  23  N,   Y. 
465. 

(3)  District  of  Columbia. — A  corporation 
can  have  no  legal  existence  out  of  the 
boundaries  of  the  sovereignty  by  which  it 
was  created,  and  can  only  be  sued  in  a  dif- 
ferent state  by  express  legislation  authoriz- 
ing such  suits  against  foreign  corporations 
having  agents  within  the  stale,  conducting 
the  business  for  which  it  was  organized. 
Lathrop  v.  Union  Pac.  R.  Co.,  i  MacArth. 
(D.  C.)  234. 

A  foreign  corporation  cannot  be  sued  in 
this  court  wlien  it  has  no  place  of  businesr 
and  no  agent  within  the  district.  Lathrop 
V.  Union  l\ic.  A\  Co..  7  D.  C.  iii. 

(4)  Georgia. — Where  the  record  shows 
that  the  person  served  with  process  was  the 
superintendent  and  manager  of  a  continu- 
ous line  of  railroad  running  from  Atlanta, 
Ga ,  to  North  Carolina,  through  the  state 
of  South  Carolina,  and  that  plaintiff,  while 
aboard  a  train  of  cars  running  over  this  line 
and  while  in  the  latter  state,  was  injured 
through  the  defective  condition  of  the 
track,  the  Georgia  courts  have  jurisdiction 
of  the  cause,  although  it  did  not  originate 
in  that  state.  Hills  v.  Richmond  &^  D.  R. 
Co.,  37  Atn.  &^  Eng.  R.  Cas.  44.  37  /'"cd.  Rep. 
660.— Distinguishing  Bawknightx/.  Liver- 
pool, L.  &  G.  Ins.  Co.,  55  Ga.  194. 

A  court  of  chancery  in  one  state  has  no 
jurisdiction  to  compel  a  domestic  corpora- 
tion to  go  into  another  state  and  specifically 
execute  a  contract  to  make  improvements 
on  lands,  and,  on  its  default,  to  enforce  the 
decree  by  attachment  and  sequestration  of 
its  property  in  the  home  state.  Port  Royal 
K.  Co.  V.  Hammond,  58  Ga.  523. 

Under  the  act  of  1853  (Acts  1853-4,  p. 
464)  in  relation  to  the  Wills  Valley  R.  Co. 
of  Alabama,  an  employe  (a  brakeman)  whose 
business  was  upon  one  and  the  same  train 
running  over  the  line  of  road,  partly  in 
Georgia  and  partly  in  Alabama,  can  main- 
tain an  action  in  Georgia  for  a  personal  in- 
jury sustained  in  Alabama,  service  of  proc- 
ess being  made  as  upon  a  domestic  railway 
corporation.  Alabama  G.  S.  R.  Co.  v.  Ful- 
ghum,  87  Ga.  263,  13  5.  £".  Rep.  649.— Re- 
viewed IN  Williams  v.  East  Tenn.,  V.  &  G. 
R.  Co.,  90  Ga.  519. 

(5)  Maryland. — A  railroad  corporation, 
owing  its  corporate  existence  in  part  to  the 
state  of  Maryland,  and  exercising  its  func- 
tions in  that  state,  may  be  restrained  there 
from  expending  its  funds,  for  any  other  than 


corporate  purposes,  anywhere.  State  v. 
Northern  C.  R.  Co.,  18  Md.  193.— Rfcdn- 
ciled  in  Baltimore  &  O.  R.  Co.  X'.  Glenn, 
28  Md.  287. 

(6)  Michigan.— k  Michigan  railroad  cor- 
poration entered  into  an  agreement  to  build 
and  work  a  road  chartered  in  Indiana.  An- 
other Indiana  corporation  which  claimed  an 
exclusive  franchise  in  that  part  of  the  state 
filed  a  bill  in  the  United  States  circuit  court 
for  Michigan,  praying  an  injunction  to  pre- 
vent the  former  company  from  carrying  into 
effect  its  agreement,  Held,  that  the  court 
had  no  jurisdiction,  as  the  subject  matter  of 
the  controversy  was  beyond  the  limits  of 
the  district,  and  the  process  of  the  court 
could  not  reach  the  locus  in  quo.  Northern 
Ind.  R.  Co.  V.  Michigan  C.  R.  Co. ,  1 5  How. 
( U.  S.)  233.— Applied  in  Atlantic  &  P.  Tel. 
Co.  V.  Baltimore  &  O.  R.  Co.,  14  J.  &  S.  (N. 

Y.)  377- 

(7)  Missouri. — The  Missouri  statutes  do 
not  give  the  courts  of  that  state  jurisdiction 
of  an  action  based  upon  negligence,  against 
a  foreign  corporation  which  has  its  princi- 
pal office  in  another  state,  and  whose  track 
does  not  reach  the  state  of  Missouri,  though 
it  maintains  an  office  in  the  state,  where 
certain  business  is  transacted.  Robb  v.  Chi 
cago  &*  A.  R.  Co.,  47  Mo.  540.— Reviewing 
Farnsworth  v.  Terre  Haute,  A.  &  St.  L.  R. 
Co..  29  Mo.  75. 

(8)  New  Hampshire. — An  action  lies  in 
this  state  for  damage  caused  by  an  unrea- 
sonable discrimination  practised  in  Maine 
in  violation  of  the  law  of  that  state.  Mc- 
Duffee  V.  Portland  &-  R.  R.  Co.,  52  A^.  H. 
430,  2  A>n.  Ry.  Rep.  261.— Quoted  in  Sco- 
field  V.  Lake  Shore  &  M.  S.  R.  Co.,  23  Am. 
&  Eng.  R.  Cas.  612,  43  Ohio  St.  571,  54  Am. 
Rep.  846. 

Buildings  standing  on  the  land  of  another, 
with  the  right  of  removal,  are  personal  prop- 
erty, and  the  nature  of  the  property  is  not 
changed  by  the  fact  that  itsowner  may  have 
such  an  interest  in  the  land  by  lease  or 
otherwise  as  enables  him  to  maintain  an 
action  of  trespass  quare  clausumf regit  for 
an  injury  to  the  possession.  An  action  for 
the  recovery  of  damages  for  the  destruction 
of  such  buildings  is  transitory,  and  although 
the  buildings  are  situated  and  destroyed  in 
Vermont,  an  action  therefor  may  be  brought 
in  New  Hampshire.  Laird  v.  Connecticut 
6*  P.  R.  R.  Co.,  43  Am.  &>  Eng.  R.  Cas.  63, 
62  A'.  H.  254,  13  Am.  St.  Rep.  564.— QUOT- 
ING Dennick  v.  Central  R.  Co.,  103  U.  S.  11. 


I 


I 


112 


JURISDICTION,  O. 


:.| 


(9)  NeTii  Vorfc. — Where  the  bonds  and 
coupons  of  a  foreign  corporation  are  made 
payable  in  New  Yorl<,  the  cause  of  action 
for  their  nonpayment  arises  in  that  state, 
and  the  courts  may  entertain  jurisdiction, 
though  the  plaintiff  is  also  a  nonresident 
corj)oration.  Connecticut  Mut.  L,  Ins,  Co. 
V.  Cleveland,  C.  &^  C.  A".  Co.,  26  //o7i'.  Pr. 
(N.  K)  225,41  Pari.  9;  affirming  z^  How. 
Pr.  180. 

New  York  courts  have  jurisdiction  of  an 
action  by  a  resident  stockholder  of  a  foreign 
corporation  to  restrain  illegal  acts  of  its  di- 
rectors, where  they  are  personally  within 
the  jurisdiction  of  the  court.  Fisk  v.  Chi- 
cago, R.  I.  &•  P.  A\  Co.,  4  ^M>.  Pr.  A'.  S. 
(/V.  y.)  378,  53  Bard.  513,  36  //tw.  Pr.  20. 

New  York  courts  have  jurisdiction  of  an 
action  by  a  resident  stockholder  of  a  foreign 
corporation  to  compel  another  foreign  cor- 
poration to  issue  stock  to  the  plaintiff's 
company,  or  its  stockholders,  in  pursuance 
of  an  agreement  consolidating  the  two ;  and 
as  plaintiff's  corporation  ceased  to  exist  by 
virtue  of  the  consolidation,  it  is  not  neces- 
sary to  make  it  or  its  officers  defendants. 
Babcock  V.  Schuylkill  &*  L.  V.  R.  Co.,i\  N. 
V.  S.  R.  643,  9  A',  y.  Supp.  845,  56  Hun  649. 

The  superior  court  of  New  York  city  has 
jurisdiction  of  an  action  by  a  citizen  of  the 
state  against  a  foreign  corporation  for  per- 
sonal injuries  inflicted  in  another  state, 
where  legal  service  of  process  can  be  had  in 
the  county  of  New  York.  Flynn  v.  Central 
R.  Co.,  51  A^.  y.  S.  R.  84,  22  N.  y.  Supp. 
383,  2  Misc.  508 ;  affirming  1 5  A'.  K  Supp. 
328,  27  Abb.  N.  Cas.  31,  20  Civ.  Pro.  179. 

The  New  York  statutes  do  not  go  so  far 
as  to  authorize  the  courts  of  the  state  to 
regulate  the  internal  affairs  of  foreign  cor- 
porations. Such  courts  possess  no  visi- 
torial  power  over  such  corporations,  can 
enforce  no  forfeiture  of  charter  for  violation 
of  law,  nor  remove  directors  for  miscon- 
duct. These  powers  properly  belong  to  the 
courts  of  the  state  in  which  they  derive 
theii  existence.  Howell  v.  Chicago  &^  N. 
W.  R.  Co.,  SI  Barb.  {N.  K)  378. 

And  where  the  only  ground  of  complaint 
is  a  supposed  error  on  the  part  of  directors 
of  a  foreign  corporation  in  making  a  divi- 
dend, the  courts  of  New  York  will  not 
award  an  injunction.  The  party  must  seek 
redress  in  the  courts  of  the  state  where  the 
company  was  incorporated.  Hui^ell  v.  Chi- 
cago &«•  A^.  IV.  R.  Co.,  51  Barb.  (N.  F.)  378. 

By  the  agreement  or  treaty  between  the 


states  of  New  York  and  New  Jersey  in  1833, 
the  line  between  the  states  is  fixed  as  iliu 
middle  of  the  Hudson  river  in  the  41st  de- 
gree of  north  latitude,  of  the  bay  of  New 
York,  of  the  waters  between  Staten  Island 
and  New  Jersey,  and  of  Raritan  hay  to  the 
main  sea:  hence  the  courts  of  New  York 
have  no  jurisdiction  of  an  action  on  behalf 
of  the  state  to  abate  as  a  nuisance,  and 
cause  the  removal  of,  wharves,  l)ulkheans, 
piers,  and  railroad  tracks  in  the  harbor  oi 
New  York,  1-ut  extending  iv<)\n  the  NlW 
Jersey  shore,  although  the  court  maj'  be- 
lieve that  they  injuriously  affect  tlu;  navi- 
gation of  such  waters.  I'eople  v.  Central  R. 
Co.,  42  N.  y.  2S3 ,  reversint;  48  Burl'.  478, 
33  How.  /v.  407.— Follow KiJ  in  Atlantic 
&  P.  Tel.  Co. T/.  Baltimore  &  O.  R.  Co..  14  J. 
&  S.  (N.  Y.)  377.  Revik.wi'.I)  in  Attorney- 
General  V.  Delaware  &  B.  B.  R.  Co.,  27  N. 
J.  Eq.  I. 

A  cause  of  action  based  upon  losses  suf- 
fered by  reason  of  the  negligent  manner  of 
working  a  leased  coal  mine  in  another  state 
is  an  action  based  upon  an  injury  to  land, 
and  the  courts  of  New  York  have  no  juris- 
diction. Genet  v.  Delaware  &>•  //.  Ciinal 
Co.,  29  A',  y.  S.  R.  954,  8  A'.  1'.  Supp.  822, 
56  Hun  640,  mem. 

(10)  Texas. — An  action  for  injuries  done 
to  land  situated  beyond  the  limits  of  iliis 
state,  and  when  no  part  of  the  injury  was 
committed  or  performed  within  the  state, 
is  purely  local  and  cannot  be  maintained  in 
any  court  in  this  state,  but  the  remedy  must 
be  had  in  the  jurisdiction  where  the  land  is 
situated.  Missouri  Pac.  R.  Co.  v.  Cullers,  81 
Tex.  382,  17  S.  IV.  Rep.  19. 

The  courts  of  Texas  have  jurisdiction  in 
an  action  against  an  interstate  railroad,  for 
a  loss  of  goods  occurring  in  another  state, 
though  the  contract  of  shipment  was  lim- 
ited to  such  other  state.  Mayer  v.  Brown, 
4  Tex.  App.  {Civ.  Cas.)  189,  16  S.  W.  A',p. 
788. 

(11)  Federal  courts.— A  railroad  corpora- 
tion s  conclusively  presumed  to  be  a  resi- 
dent and  inhabitant  of  the  state  under  whose 
laws  it  is  created.  So  where  a  subject  of 
Great  Britain  and  resident  of  Canada  de- 
sires to  bring  suit  against  such  corporation 
in  the  circuit  court  of  the  United  States,  he 
must  do  so  in  the  district  of  which  the 
company  is  an  inhabitant,  and  not  in  any 
district  in  which  he  may  find  an  agent  of 
the  company  doing  business.  Campbell  v. 
Duluth,  S.  S.  &-  A.  R.  Co.,  50  Fed.  Rep.  24'- 


TT'<''^f'M} 


JURISDICTION,  7. 


113 


7.  Asilvpciulviit  upon  county  liueti. 

— (1)  Calif itrnui.  —  Where  an  action  for 
(lainages  is  brought  for  injury  resulting 
from  the  wrongful  refusal  of  a  railroad 
coni[)any  to  carry  plainiilTs'  lumber  to  mar- 
ket, in  consequence  of  which  plaintilfs  were 
unable  to  sell  their  lumber  and  could  not 
profitably  operate  their  sawmills,  the  action 
may  l)e  brought  in  the  county  where  the 
refusal  to  carry  occurred,  under  Const.  Cal. 
art.  12,  §  1 8,  which  provides  that  a  cori)ora- 
tion  may  be  sued  in  the  county  where  the 
obligation  or  liability  arises,  or  where  its 
principal  place  of  business  is  situated,  al- 
though the  complaint  also  alleges  that  such 
refusal  was  pursuant  to  a  conspiracy  entered 
into  between  the  defendant  and  (Jllier  lum- 
ber dealers  not  resident  within  the  county, 
who  are  not  made  parties  to  the  action,  f(jr 
the  i)urpose  of  inflating  the  jirice  of  lumber 
and  giving  the  parties  concerned  a  monop- 
oly of  the  trade.  Chase  v.  South  Vac.  Coast 
li,  Co.,  42  Am.  &^  Kni^.  A'.  Cas.  424,  83  Ca/. 
468,  23  /'ac.  Rep.  532. 

(2)  Georgia. — The  act  of  February  20, 
1854,  defining  the  liabilities  of  the  railroad 
companies  of  the  state  for  injuring  or  kill- 
ing live  stock,  in  so  far  as  it  provides  that 
such  corporations  shall  be  suable  in  the 
counties  in  which  sucli  injuries  or  killing 
may  occur,  is  not  in  conflict  with  that  pro- 
vision of  the  constitution  of  the  United 
States  which  prohibits  any  state  from  pass- 
ing any  law  impairing  the  obligation  of 
(.ontracts.  Davis  v.  Central  R.  &^  B.  Co., 
17  Ga.  323.— Distinguishing  Louisville,  C. 
&  C.  K.  Co.  V.  Letson,  2  How.  (U.  S.)  558. 
— Approved  in  Georgia  R.  «Sc  B.  Co.  v. 
Oaks,  52  Ga.  410. 

Nor  is  the  above  statute  in  conflict  with 
that  part  of  the  state  constitution  declaring 
that  no  person  shall  be  sued  elsewhere  than 
in  the  county  in  which  he  resides,  as  a  rail- 
road company  may  be  said  to  "reside"  in 
the  place  where  it  operates  its  road,  and 
not  merely  where  its  principal  office  is  kept. 
Davis  V.  Central  R.  «S»  D.  Co..  17  Ga.  323. 

When  a  suit  is  brought  against  a  com- 
pany <.t  contractu  in  a  county  other  than 
that  in  which  it  has  its  principal  office,  al- 
though the  defendant  may  plead  to  the 
merits,  it  is  incumbent  on  the  plaintiff  to 
show  that  the  contract  was  made  or  to  be 
performed  in  the  county  where  the  suit  is 
brought,  and  on  failure  of  i.ie  plaintiff 
to  maVe  such  proof  the  defendant  may 
move  to  dismiss  for  want  of  jurisdiction. 
6  D.  R.  D.-S. 


(Trippe,  J.,  dissenting.)    Georgia  R.  G^  li 
Co.  V.  Seymour,  53  Ga.  499. 

Suit  may  be  brought  in  the  county  where 
they  are  locited  for  an  injury  to  lands  by  a 
railroad,  undei  section  3339,  Ga.  Code,  as 
amended  by  ihi;  .ct  of  1S69.  Central  R.  &* 
li.  Co.  V.  CariWi'i,  $^Ga.  251. 

Where  the  uttion  is  to  recover  for  g  )ods 
shipped  but  never  delivered  to  ilic  con- 
signee, the  court  of  the  county  of  the  place 
of  shipment  has  jurisdiction  of  the  aiiion. 
Central  R.  Co.  v.  Urunson,  i  Am.  ir'  i'-'ig- 
R.  Cas.  308,  63  Ga.  504. 

A  railroad  company,  as  such,  must  be 
sued  in  the  county  of  its  principal  place  of 
business,  or  in  a  county  where  there  is 
jurisdiction  by  reason  of  tlie  subjeC  inalter 
and  the  locality  of  the  cause  of  action.  If 
the  railroad  company,  as  the  lessee  of  an- 
other, has  caused  damage  to  a  person,  am- 
ple provision  is  made  for  suing  it  as  such. 
Central  R.  Co.  v.  Flournoy,  69  Ga.  763. 

A  railroad  company  may  be  sued  in  any 
county  in  which  the  cause  of  action  origi- 
nated, by  any  one  whose  person  or  property 
has  been  injured  by  such  company,  its  olii- 
cers,  agents,  or  employes,  for  the  purpose 
of  recovering  damages  for  such  injury, 
whether  there  is  an  agent  of  the  company 
resident  in  the  county  of  the  suit,  and  upon 
whom  service  may  be  perfected,  or  not. 
Mitchells.  Southwestern  R.  Co.,  75  Ga.  398. 

Under  Ga.  Code,  ji  3406,  a  railroad  com- 
pany is  an  inhabitant  of  all  the  counties 
where  its  road  is  operated,  and  may  be  sued 
in  any  of  such  counties.  East  Tenn.,  V.  iS~> 
G.  R.  Co.  v.  Atlanta  &*  F.  R.  Co.,  49  Fed. 
Rep.  608. —Following  Davis  7^.  Central  R. 
&  B.  Co.,  17  Ga.  323;  Georgia  R.  &  B.  Co. 
V.  Oaks,  52  Ga.  410. 

(3)  Illinois. — In  a  suit  against  a  corpora- 
tion  an  affidavit  of  claim,  filed  with  the 
declaration,  stating  the  amount  due  from 
defendant  to  plaintiff,  and  that  the  princi- 
pal office  of  defendant  is  in  the  county 
where  the  suit  is  brought,  is  sufficient  to 
show  that  defendant  is  a  resident  of  that 
county  within  the  meaning  of  the  act  pro- 
viding for  the  filing  of  such  affidavit.  Chi- 
cago, D.  Or*  V.  R.  Co.  v.  Bank  of  North 
America,  82  ///.  493.— Quoting  Bristol  v. 
Chicago  &  A.  R.  Co..  15  111.  436. 

Where  a  husband  and  wife  sued  a  railroad 
in  one  county,  and  issue  was  joined,  and  the 
law  was  afterwards  changed  so  as  to  require 
such  a  suit  to  be  brought  in  a  different 
county,  and  the  husband  was  dismissed  as 


*-f 


lU 


JURISDICTION,  7. 


improperly  joined,  and  tlic  dcrlaration 
amciirlcd  to  siiow  this— //<■/</,  that  it  \va«-,  not 
necessary  to  refile  the  declaration,  or  for  a 
further  plea ;  that,  it  bein^  the  same  cause 
of  action,  the  court  did  not  lose  jurisdiction. 
Dickson  v.  Chicago,  H.  &•  Q.  A'.  Co..  8i  ///. 
215.  — UisTlNtiUisHiNi;  lliini'isC.  K.(>).  v. 
Cobh,  64  Hi.  128. 

(4)  /ouut. —  A  riilroad  company  has  a 
lej;al  residence  in  any  county  in  wliicli  it 
fiperates  its  road,  and  may  be  sued  tliere. 
lialilwin  V.  Mississip/)i  &^  M.  R.  Co. ,  5  /(/liui 
518. — Following  Bristol  7'.  Chicago  &  A. 

K.    Co.,     15    III.    436.— DlSl'lNtlUlSHKU    IN 

Dubuque  v.  Illinois  C.  K.  Co.,  39  Iowa  56. 
FoLLOWKU  IN  Richardson  ?'.  Hurlinj4ton  & 
M.  K.  Co.,  8  Iowa  260.  Qvurv.D  in  Mc- 
CabeT/.  Illinois  C.  K.  Co.,  4  McCrary  (U.  S.) 
492,  13  Fed.  Kep.  827;  Harding  z*.  Chicago 
&A.  R.  Co.,  80  Mo.  659. 

In  an  action  against  a  railroad  company 
to  recover  damages  for  a  personal  injury, 
another  railroad  company,  which  had  as- 
sumed the  liabilities  of  the  company  caus- 
ing the  injury,  was  made  a  co-defendant, 
jurisdiction  of  the  company  assuming  the 
obligation  being  acquired  by  reason  of  its 
having  a  line  of  its  road  through  the  county 
in  which  the  action  was  brought,  though 
such  line  was  not  owned  by  it  when  the 
plaintiff's  cause  of  action  accrued,  and  the 
liability  being  joint,  the  court  had  jurisdic- 
tion of  both  defendants.  Knott  v.  Dubuque 
df  S.  C.  K.  Co.,  84  Iowa  462,  51  A'.  W.  Kep. 

57. 

(5)  Kentucky. — A  suii.  to  enforce  a  judg- 
ment against  a  railroad  corporation  created 
by  the  laws  of  Kentucky,  if  not  brought  in 
the  county  whence  the  execution  issued, 
must  be  brought  either  in  the  county  in 
which  it  has  its  principal  office  or  place  of 
business,  or  in  the  county  in  which  its  presi- 
dent or  chief  officer  resides.  McDorinant 
V.  Louisville,  C.  6*  L.  K.  Co.,  11  Bmh  (A>,) 
386,  14  Atn.  Ky.  Rep.  370. 

(6)  Maine. — Where  a  railroad  passes  over 
parts  of  two  counties,  the  corporation  may 
maintain  an  action  of  assumpsit  in  that 
county  where  they  have  an  office,  which  is 
made  the  depository  of  the  books  and 
records  of  the  company  by  a  vote  of  the 
directors,  and  a  place  where  a  large  share 
of  the  business  is  transacted ;  although  the 
company  may  at  the  same  time  have  an- 
other office  in  the  other  county,  where  the 
residue  of  their  business  is  transacted,  and 
in  which  the  treasurer  and  clerk  reside. 


Androscoggin  <S«  A'.  R.  Co,  v.  Stevens,  28 
Mi.  434. 

(7)  Missouri. — The  residence  of  a  rail- 
rf)ad  company  is  in  any  county  through 
which  its  road  passes,  and  in  which  it  has 
an  agent  upon  whom  process  can  be  served, 
for  the  purpose  of  bringing  actions  under  1 
VVagn.  Mo.  St.  394,  jSj:  2I),  28.  Slavens  v, 
South  J'ac.  R.  Co.,  51  Mo.  308,  3  Am.  Ky. 
Rep.  262. 

(8)  Aebrasla. — An  action  against  a  <  om- 
pany  for  injuries  to  real  estate  which  oc- 
curred in  1886,  from  an  overflow  of  the 
Pl.itte  river,  caused  by  the  alleged  negli- 
gent and  wrcmgful  construction  of  a  rail- 
way bridge  across  said  river,  is  transitory, 
and  need  not  be  brought  in  the  county 
where  i.i:e  cause  of  action  arose.  The  act 
of  1889  is  not  involved  i[)  the  case.  Oinn/io 
&*  R.  V.  R.  Co.  V.  Brown,  44  A/n,  &^  E)if;. 
R.  Cas.  475,  29  Neb.  492,  46  A'.  W.  Rep.  39 

(9)  Nc7u  >WX\— Under  the  act  of  Ueceni- 
ber,  1847,  providing  how  corporations  ma\ 
be  sued  before  justices  of  the  peace,  a  com- 
pany whose  road  runs  through  two  or  more 
counties  may  be  sued  in  either  county  be- 
fore a  justice,  if  any  "  presiding  otlicer. 
secretary,  cashier,  treasurer,  or  any  direc- 
tor or  trustee  thereof "  be  in  the  county 
upon  whom  process  mav  be  served,  as  pro- 
vided by  the  act.  Slicrwood  v.  Saratoga  &» 
W,  R.  Co.,  15  Barb.  {X.  V.)  650. 

And  the  railroad  company  must  be  treated 
as  an  inhabitant  and  freeholder  of  each 
county  where  its  track  is  built,  within  the 
meaning  of  2  Rev.  St.  227,  §§  13-15,  jiro- 
viding  that  the  first  process  against  free- 
holders shall  be  by  summons  returnable 
not  less  than  six  nor  more  than  twelve  days 
from  the  time  of  service ;  and  therefore  a 
summons  issued  by  a  justice  against  a  rail- 
road company,  returnable  in  three  days  is 
a  nullity.  Sherwood  v.  Saratoga  &•  IV.  R. 
Co.,  15  Barb.  {N.   Y.)  650. 

Under  Code  Civ.  Pro.  §  341  county 
courts  do  not  have  jurisdiction  of  actions 
against  a  domestic  railroad  corporation,  un- 
less its  principal  office  is  in  the  county 
where  the  suit  is  brought,  or  unless  the 
summons  is  served  in  the  county  where  the 
company  transacts  some  of  its  business. 
Heenan  v.  New  York,  IV,  S.  &-  B.  R.  Co., 
6  Civ.  Pro,  {N.  F.>  348,  i  Hffw.  Pr.  N.  S. 
53  •  affirmed  in  34  Hun  602. 

(10)  North  Carolina. — A  corporation  may 
be  sued  ir.  <'ie  county  court  in  any  county 
in  the  'Aate  where    the    plaintiff    resides. 


JURISDICTION,  h,  J). 


115 


Morduad  v.  Atlantic  &*  N.    C,  A\  Co.,  7 
y,m,s  iiV.  Car.)  500. 

The  act  of  1868-69,  ch.  257,  provi'ling 
tliat  "vemie  in  actions  against  railroart 
CDinpanics  shall  be  laid  in  some  county 
wliprein  tlie  tracit  of  the  company,  or  some 
(if  it,  is  situated,"  is  not  in  conflict  with  tlie 
Slate  Cnnstitutinn,  art.  i,  §  7,  providing  that 
"  wo  man  or  set  of  men  are  entitled  to  ex- 
ciiisivt!  or  separate  emoluments  or  privi- 
lents  from  the  community  but  in  consid- 
eration of  public  service."  Kingsbury  v. 
Chill  hum  l\.  Co.,  66  iV.  Car.  384.— Al'PKov- 
INO  Graham  v.  Charlotte  &  S.  C.  R.  Co., 
64N.  Car.  631. 

(11)  0//io. — A  railroad  company  may  be 
sued  in  any  county  through  or  into  wliich 
its  toad  passes,  without  regard  to  the  nature 
of  the  cause  of  action.  Ciminnati,  H.  (5>» 
1).  A'.  Co.  V.  Jewett,  8  Am.  &•  Etig.  A'.  Cas. 
702,  37  Ohio  St.  649. 

(12)  Pennsylvania. — The  chancery  powers 
of  the  supreme  court  as  to  supervising  and 
controlling  the  proceedings  of  corporations, 
other  than  those  of  a  municipal  character, 
by  tlie  act  of  1836,  if  not  restricted  to  the 
city  and  county  of  Philadelphia,  arc  not 
more  extensive  in  any  other  part  of  the 
stale  than  those  of  a  court  of  common  pleas, 
and  therefore  the  supreme  court,  when  sit- 
ting at  Harrisburg,  cannot  supervise  and 
control  the  proceedings  of  the  Pennsylvania 
R.  Co.  beyond  the  limits  of  the  county  of 
Dauphin.  Hays  v.  Pennsylvania  A'.  Co.,  17 
P(t.  St.  9. 

(13)  7V'.rrt.v. — In  a  suit  by  a  holder  of 
time  checks  issued  by  the  subcontractors, 
against  the  general  contractor  for  building 
a  railroad  through  the  county  where  suit  is 
filed,  and  also  against  the  railway  company, 
to  enforce  the  laborer's  lien  upon  the  road, 
a  plea  In  abatement  by  a  contractor  that  his 
residence  was  in  another  county  was  prop- 
erly stricken  out.  The  right  to  enforce  the 
lien  in  the  county  where  the  railroad  was 
built  gives  the  jurisdiction.  This  was  not 
negated  in  the  plea.  San  Antonio  &»  A.  P. 
R.  Co.  v.  Cockrill,  72  Tex.  613, 10  ^.  IV.  Rep. 
702. 

8.  As  dependent  upon  amount  in 
controversy.  —  Where  the  complaint 
claims  $60  damages  against  a  company  for 
killing  live  stock,  and  the  verdict  and  judg- 
ment are  for  that  amount,  a  motion  to  dis- 
miss for  want  of  jurisdiction  on  the  ground 
that  the  evidence  shows  the  value  of  the 


stock  to  be  less  than  850,  the  amount  neces- 
sary to  give  the  court  juristliction  under  the 
statute,  is  properly  overruled.  Memphis  e- 
C.  I\.  Co.  V.  Hvmhree,  35  Am.  &^  Eng.  R. 
Cas.  128,  84  Ala.  182,  4  So.  Rip.  392. 

Where  a  complaint  for  the  condemnation 
of  land  alleges  that  the  compensation  and 
damages  for  the  land  taken  will  not  exceed 
$2000,  the  limit  of  the  jurisdiction  of  the 
court,  but  the  jury  return  a  verdict  for  a 
greater  sum,  the  court  is  divested  of  its 
jurisfliction.  and  cannot  proceed  to  judg- 
ment or  award  a  new  trial.  Diiiver,  W.  &* 
J'.  R.  Co.  V.  Church,  14  Am.  &^  Eng.  R.  Cas. 
320,  7  Cot...  143,2  Pac.  Rep.  218,— KXPLAIN- 
iNt;  Louisville,  N.  A.  &  C.  R.  Co.  v.  John- 
son, 67  Ind.  546.— Followed  in  Denver  & 
R.  G.  R.  Co.  V.  Otis,  25  Am.  &  Eng.  R.  Cas. 
232,  7  Colo.  198. 

A  landowner  commenced  a  joint  action 
against  a  city  and  an  electric  railway  com- 
pany to  recover  land  used  for  a  street.  The 
company  objected  to  the  jurisdiction  of  the 
court  on  the  ground  that  the  land  actually 
necessary  for  its  track  and  the  poles  which 
supported  its  wires  is  all  that  should  be  con- 
sidered, as  to  it,  in  determining  the  amount 
in  controversy  for  the  purposes  of  jurisdic- 
tion ;  but  the  company  did  not  disclaim  as 
to  any  part  of  the  demanded  premises,  but 
defended  for  the  whole.  Held,  that  the 
value  of  the  entire  street  was  the  test  of  the 
amount  in  controversy  for  the  purposes  of 
jurisdiction.  Greene  w.  Tacoma,'','},  Fed  Rep. 
562. 

S.  denied  that  he  was  a  stockholder  in  the 
company  ;  and  the  controversy  involved  the 
validity  of  his  subscription  for  the  whole  of 
live  shares,  which  was  S500.  Held,  that 
though  the  judgment  against  S.  for  $300 
and  interest  was  less  than  $500,  yet  the  sub- 
ject in  controversy  was  the  validity  of  the 
subscription  for  the  five  shares,  and  the 
court  of  appeals  had  jurisdiction  to  hear  the 
case  upon  appeal.  Stuart  v.  Valley  R.  Co., 
32  Graft.  ( Va.)  146. 

».  Precedence  between  courts  of 
concurrent  jurisdiction.  —  The  pen- 
dency of  a  suit  in  a  state  court  to  settle 
priorities  between  lien  holders  upon  prop- 
erty, even  though  the  bill  prays  the  appoint- 
ricnt  of  a  receiver,  does  not  defeat  the 
jurisdiction  of  a  United  States  court  brought 
for  a  foreclosure  of  a  trust  and  sale  of  the 
property,  especially  when  the  proceeding  in 
the  state  court  has  been  pending  for  several 


116 


JURISDICTION,  10. 


years  and  its  object  is  practically  accom- 
plished. S/f!var/ V.  Chesapeake  Si^O.  Canal 
Co.,  4  Hushes  {U.  S.)  i,\. 

Where  a  judicial  sale  of  a  railroad  was 
made  by  the  Fayette  circuit  court,  and  the 
supervision  of  the  property  sold  was  re- 
tained by  that  court  for  the  purpose  of  car- 
rying; out  the  terms  of  sale,  the  Kenton  cir- 
cuit court  has  jurisdiction  in  an  original 
action  to  charge  the  purchaser  as  a  trustee 
for  the  corporation.  Neither  court  will  be 
required  to  subordinate  itself  to  the  other. 
Cmihi^ton  <5-»  L.  R.  Co.  v.  Bowler,  g  Bush 
{Ky.  \  468, 

A  Massachusetts  court  will  not  entertain 
a  suit  by  preferred  stockholders  of  a  foreign 
corporation  to  restrain  the  issuance  by  it  of 
bonds  secured  by  mortgage  upon  property 
in  tlie  state  of  its  organization,  and  taking 
precedence  of  the  preferred  stock,  where  a 
similar  suit  is  pending  in  such  foreign  juris- 
diction. Kimball  v.  St.  Louis  &*  S.  F.  R, 
Co.,  157  Mass.  7.  31  ^V.  E.  Rep.  697. 

Where  the  supreme  court  of  Pennsylvania 
has,  by  its  decree  and  authorized  officers, 
taken  judicial  control  of  the  property  and 
franchises  of  a  railroad  corporation,  and 
ordered  their  sale,  they  cannot  be  taken  in 
execution  by  process  from  any  other  juris- 
diction. Fox  V.  Hempfield  R.  Co.,  2  Abb. 
{U.S.)  151. 

The  rule  that  of  two  courts  of  concurrent 
jurisdiction  the  one  first  gaining  jurisdic- 
tion over  the  parties  and  the  subject-matter 
of  a  suit  retains  it  to  the  exclusion  of  the 
other  applies  only  where  the  suits  brought 
in  the  two  courts  involve  the  same  parties 
and  the.  same  subject-m-tter.  So  where 
jlockholders  of  a  railroad  corporation  file  a 
bill  in  a  stale  court  against  another  corpora- 
tion to  redeem,  and  there  is  a  bill  pending 
in  a  federal  court  by  other  stockholders 
claiming  adverse  interests,  both  may  retain 
jurisdiction,  Boston  &•  P.  R.  Corp.  v.  New 
York  &^  N.  E.  R.  Co.,  12  R.  I.  220. 

The  Act  of  Congress  of  J.uly  4, 1884,  which 
provides  tliat  certain  federal  courts  shall 
have  concurrent  jurisdiction  over  all  con- 
troversies, irrespective  of  amount,  between 
the  Gulf,  Colorado  &  Santa  Fe  R.  Co.,  and 
the  Indian  tribes  and  nations,  and  the  in- 
habitants thereof,  through  whose  territory 
said  railway  shall  be  constructed,  does  i.ot 
deprive  any  other  court  of  any  jurisdiction 
it  would  have  against  such  railway  com- 
pany, since  the  act  does  not  confer  exclusive 
jurisdiction  on  the  courts  therein   named. 


Western  Union  Tel.  Co.  v.  Phillips,  2  Tex: 
Civ.  App.  608,  21  S.  jr.  Rep.  638.- Di.snx- 
GUISHING  Morris  v.  Missouri  Pac.  R.  Co., 
78  Tex.  17. 

Where  justices  are  authorized  to  compel 
a  railway  company  to  construct  works  reciui- 
site  for  draining  adjoining  land,  tlie  court 
will  refuse  to  exercise  a  concurrent  jurisdic- 
tion as  well  after  the  completion  of  the  rail- 
way as  during  its  construction.  Hood  v. 
North  Fast  em  R.  Co.,  L.  R.  11  Ji^.  116,40 
L.y.  Ch.  17,  23  Z.   7".  433,  19  ir.  R.  266. 

During  tlie  pendency  of  a  suit  in  a  circuit 
court  of  the  United  States  against  a  rail- 
road com|)any  to  foreclose  a  mortgage,  the 
trustee,  acting  with  certain  bondiiolders,  but 
without  notice  to  or  permission  from  the 
circuit  court,  filed  a  bill  in  the  slate  court 
to  foreclose  the  same  mortgages,  and  mak- 
ing no  reference  to  the  case  in  the  circuit 
court,  upon  which  a  receiver  was  appoinied, 
foreclosure  was  ordered,  and  sale  made  Ijy 
the  sheriff,  who,  under  t>rder  of  the  cuurt, 
delivered  the  road  to  the  purchasers.  Jle/d, 
that  such  an  interference  on  the  part  of  the 
state  court  with  property  at  the  time  wiiliiii 
the  jurisdiction  of  the  circuit  court  was  un- 
authorized, and  the  property  was,  neverthe- 
less, within  the  control  of  the  circuit  court 
for  the  purpose  of  adjudicating  upon  the 
equitable  rights  of  all  who  had  ever  been 
before  it.  Bill  v.  Nein  Albany,  etc.,  R.  Co., 
2  Biss.  {U.  S.)  390. 

One  who  is  a  bondholder  and  stockholder 
is  entitled  in  such  a  case  to  the  equitable 
interposition  of  the  circuit  court  to  protect 
his  rights  under  its  decrees,  and  to  denuind 
an  account  from  the  trustee  or  his  repre- 
sentatives. Bill  V.  A^eTV  Albany,  etc.,  R.  Co., 
2  Biss.  (U.  5.)  390. 

The  purchasers  and  their  counsel  having 
had  notice  of  what  had  occurred  in  the  cir- 
cuit court  cannot  claim  to  be  bona  fide  pur- 
chasers. Bill  V.  New  Albany,  etc.,  R.  Co.,  2 
Biss.  (U.  S.)  390. 

10.  Oltjcctioiis  to  JiiriMliction.— 
Questions  of  jurisdiction  can  be  raised  on 
appeal ;  and  the  appellate  court  will  hsok  to 
the  record  and  settle  the  question  for  itself, 
even  when  not  otherwise  raised.  Mansfield, 
C.  &*  L.  M.  R.  Co.  V.  Swan,  in  U.  S.  379, 
4  Sup.  Ct.  Rep.  510. — Quoted  in  St.  Louis, 
I.  M.  &  S.  R.  Co.  V.  Newcom,  56  Fed.  Rep, 

95'- 

Where  the  alleged  injury  is  in  one  county 
and  the  suit  is  brought  in  another,  and  these 
facts  appear  on  the  face  of  the  declaration, 


JURISDICTION,  11,  lli. 


iir 


^i    I 
;#  'I 


appearance  and  pleading  to  the  merits,  with- 
out objection  to  the  junsdiction,  waive  the 
objection;  and  the  question  cannot  be 
raised  at  a  subsequent  term  by  withdrawing 
the  plea  and  moving  to  dismiss  the  action 
for  want  of  jurisdiction.  A'ast  Tenn.,  V.&* 
G.  A'.  Co.  V.  Sitddeth,  86  Ga.  388,  1 2  S.  E. 
Ri'p.  682. 

Where  a  railroad  is  chartered  in  Mary- 
land and  in  an  adjoining  state,  and  exer- 
cises its  franchises  in  each,  a  plea  to  the 
jurisdiction  of  a  Maryland  court  on  the 
ground  that  the  corporate  property  lies 
partly  in  another  state,  or  tiiat  its  corporate 
existence  is  derived  in  part  from  a  cliarter 
of  the  otiier  state,  is  not  tenable.  State  v. 
Northern  C.  A'.  Co.,  18  J/d.  193. 

Where  a  want  of  jurisdiction  does  not 
appear  on  tlie  faco  of  a  complaint,  the  de- 
fendant cannot  raise  the  question  by  de- 
ni.rrer;  and  the  objection  to  the  jurisdic- 
tion is  properly  taken  by  answer,  and  is  not 
waived  by  appearing  and  filing  an  answer 
setting  up  want  of  jurisdiction.  Heenan  v. 
Ncxu  York,  IV.  S.  &-  B.  R.  Co.,  i  H(rw.  Pr. 
K.  S.  (;V.  Y.)  53. 

A  defendant  who  wishes  to  attack  the 
jurisdiction  of  the  court  on  the  ground  that 
tiie  plaintiff  has  committed  a  fraud  on  such 
jurisdiction  by  placing  a  larger  value  on 
specific  articles  than  was  proper,  the  value 
of  which  was  sued  for,  and  that  this  was 
done  to  secure  jurisdiction  improperly,  must 
plead  that  fact;  the  issue  thus  made  should 
be  submitted  to  the  jury  with  the  issues  in- 
volved. On  such  an  issue  it  does  not 
necessarily  follow  that  because  the  plaintiff 
in  his  petition  claimed  damage.^  in  excess 
of  the  minimum  jurisdiction  of  the  court, 
and  recovered  an  amount  less  than  such 
minimum  jurisdiction,  the  amount  claimed 
was  fraudulently  stated  to  secure  jurisdic- 
tion. International  Ssr'  G.  N.  R.  Co.  v. 
Nkhohoii,  21  Am.  <S->  Eng.  R.  Cas.  122,61 
Tex.  550. 

Wiien  an  action  of  trespass  for  false  im- 
prisonment was  instituted  by  the  plaintiff 
against  McCray  and  Mitchell  and  the  South- 
ern E.\press  Co.  in  the  county  of  Sumter, 
wliere  two  of  the  defendants  resided,  and 
the  defendants  appeared  by  their  counsel 
and  filed  their  joint  plee  to  the  merits  of 
the  action,  without  excepting  to  the  juris- 
diction of  the  co\irX.—  /ieId,  tliat  it  was  too 
late  for  the  Southern  Express  Co.,  one  o.' 
the  defendants,  to  object  to  the  jurisdiction 
of  the  court   on   the  appeal   trial   of    the 


cause,  although  the  verdict  of  the  jury  on 
the  first  trial  was  against  the  defendant 
alone,  and  it  was  the  only  party  entering 
the  appeal.  Green  v.  Southern  Exp.  Co., 
41  Ga.  515. 

Plaintiffs  sought  to  enjo'n  defendants 
from  selling  the  road-bed,  right  of  way,  rails, 
sleepers,  rights  and  privileges,  p.nd  fran- 
chises connected  with  a  line  of  railway,  and 
to  set  aside  a  conveyance  in  trust  made  for 
that  purpose.  It  appearing  that  the  crown 
was  the  principal  party  interested  in  the 
conveyance  sought  to  be  declared  void,  and 
that  the  injunction  was  virtually  against 
the  crown— held,  tliat  objections  taken  to 
the  jurisdiction  of  the  court  on  the  grounds 
that  the  crown  was  not  liable  to  be  sued  or 
restrained  by  injunction,  and  that  plaintiffs' 
remedy  was  by  petition  of  right  and  not 
otherwise,  must  prevail.  Montreal  &^  E.  S. 
L.  R.  Co.  v.  Stewart,  20  Nov.  Sc.  1 1 5. 

11.  (Tiirisdictioii  <»t'  particular 
courts  —  Atlniiralty  coiirt.s.  —  Goods 
were  shipped  on  a  through  bill  of  lading,  to 
go  part  of  the  distance  by  water  and  then 
to  be  transferred  to  railroads  to  be  carried 
to  the  place  of  destination ;  but  the  bill  of 
lading  provided  that  only  the  carrier  should 
be  liable  for  a  loss,  in  whose  actual  custody 
the  freight  might  be  at  the  time  of  the  loss. 

was  lost  on  the  water  portion  of  the 
route.  Held,  that  the  contract  was  several 
as  to  the  different  carriers,  so  far  as  a  right 
of  action  is  concerned,  and  a  loss  occurring 
on  the  water  gave  a  court  of  admiralty 
jurisdiction.  Phoenix  Ins.  Co.  v.  Erie  iS- 
W.  Transp.  Co.,  \o  Piss.  {I/.  S.)  18. 

The  true  test  of  a  maritime  contract  or  a 
maritime  service  is  whether  it  is  to  be  sub- 
stantially performed  or  rendered  on  naviga- 
ble waters.  If  it  is,  tlien  it  is  of  a  maritime 
character,  and  a  court  of  admiralty  has  ju- 
risdiction. If  it  is  not,  then  the  jurisdic- 
tion does  not  attach.  Phwnix  Ins.  Co.  v. 
Erie  &'  IV.  Transp.  Co.,  jo  Piss.  {&'.  S.t  18. 

12.  Chancery    Court    of  New 

Jersey.— The  power  of  a  court  of  chancery 
to  sell  the  property  of  an  insolvent  corpora- 
tion, free  from  incumbrances,  under  the 
statute  (Nix.  Dig.  409,  ^  24),  is  not  abridged 
by  the  dispute  as  to  a  mortgage  being  in 
reference  to  the  extent  to  which  it  is  an  in- 
cumbrance, and  not  distinctly  and  solely  as 
to  its  legality  or  validity;  the  legislature 
intended  to  include  cases  in  which  the  ob- 
jections are  to  the  extent  of  the  lien  alone. 
Middleton  v.  New  Jersey  W.  L.  R,  Co.,  26 


■^  ,      St"' 


hM 


>»  hJ 


r—f 


118 


JURISDICTION,  13-19. 


J\/.  J.  Eq,  269 ;  reversed  on  another  point  in 
27  N.  J.  Eq.  557. 

13. Circuit  Court  of  Wiscon- 
sin.— The  city  of  Jamesville  sued  a  railroad 
company  in  the  circuit  court  of  the  county 
to  recover  a  penalty  imposed  by  an  ordi- 
nance for  obstructing  streets ;  and  the  com- 
pany objected  to  the  jurisdiction  of  the 
court,  claiming  that  the  action  should  have 
been  brought  in  the  police  court  of  the  city. 
Wisconsin  Private  Laws  1855,  g  12,  after 
detininji;  the  powers  of  said  police  court, 
provides  tliat  nothing  therein  contained 
shall  be  deemed  to  atTect  in  any  manner 
tile  power  or  jurisdiction  of  the  circuit 
court  of  the  county.  Ne/it,  that  the  objec- 
tion to  the  jurisdiction  was  not  well  taken. 
Jaticsville  v.  Milwaukee  &*  M.  K,  Co.,  7  Wis. 
4S4. 

14.  City  Court  of  Selnia.— The 

city  court  of  Selnia  being  by  the  express 
terms  of  the  statute  creating  it  clothed  with 
"  the  authority  to  issue  writs  of  injunction, 
mandamus,  certiorari,  prohibition,  ne  exeat, 
and  all  other  remedial  writs,"  has,  under 
the  well-defined  legislative  policy  of  this 
state,  intended  to  expedite  the  administra- 
tion of  justice,  the  authority  to  issue  or 
order  the  issue  of  such  writs,  returnable 
into  any  court  of  the  state  having  jurisdic- 
tion of  them.  East  &•  W.  A'.  Co.  v.  East 
Tenn.,  V.  6-  G.  R.  Co.,  22  Am.  (S-  Etig.  R. 
Cas.  81.  75  Ala.  275.— Quoted  in  Mobile  & 
G.  R.  Co.  V.  Alabama  Midland  R.  Co.,  39 
Am.  &  Eng.  R.  Cas.  117,  87  Ala.  520,  6  So. 
Rep.  407. 

15.  County    Courts.  —  County 

courts  can  only  execute  such  powers  as  are 
conferred  by  statute  expressly  or  impliedly. 
People  ex  rel.  v.  Louisville  &•  N.  R.  Co., 
(III.)  25  Am.  &*  Eng.  R.  Cas.  235,  5  N.  E. 
Rep.  379. 

Neither  the  county  nor  justices'  courts 
have  jurisdiction  to  foreclose  a  lien  upon 
the  grade  or  road-bed  of  a  railroad,  the 
same  being  real  estate  within  the  meaning 
of  the  law  conferring  jurisdiction  upon 
those  courts.  Texas  Gr*  P.  R.  Co.  v.  McMul- 
len,  I  Tex.  App.  (Civ.  Cas.)  64. 

The  county  court  has  jurisdiction  where 
the  suit  is  not  for  the  recovery  of  land,  but 
for  damages  for  the  interruption  and  de- 
struction of  an  easement.  Gulf,  C.  &*  S.  F. 
R.  Co.  v.  Graves,  {Tex.)  10  Am.  &*  Eng.  R. 
Cas.  199. 

A  suit  by  an  abutting  owner  to  recover 
damiiges  caused  by  the  construction  and 


operation  of  a  railway  upon  the  street  is 
not  an  action  to  recover  land  or  an  interest 
in  land,  but  to  recover  damages  for  injury 
done  to  land ;  and  so  far  as  the  subject- 
matter  is  concerned  a  county  court  has 
jurisdiction.  Gulf,  C.  &^  S.  E.  R.  Co.  v. 
Thompson,  2  Tex.  App.  (Civ.  Cas.)  500. 

10. County  Courts  of  En{;laii(l. 

— In  an  action  in  a  county  court  against  a 
railway  company  to  recover  damages  owing 
to  the  omission  of  the  company  to  convey 
goods  on  its  line,  where  a  question  is  raised 
as  to  the  right  of  the  company  to  charge 
toll  for  empty  wagons,  the  title  to  toll  does 
not  tliereby  come  in  question  within  the 
meaning  of  the  proviso  in  9  &  10  Vict.  c. 
95,  s.  58.  Hunt  V.  Great  Northern  R.  Co., 
lo  C.  B.  900,  2  L.,  AI.  <S«  P.  268,  I  s  Jur.  400, 
20  L.J.  Q.  B.  349. 

17. District  Courts  of  Montana 

Territory. — The  organic  act  of  Montana 
gives  to  the  territorial  district  courts  the 
same  jurisdiction  in  cases  arising  under  the 
federal  constitution  and  laws  as  is  vested 
in  the  United  States  district  and  circuit 
courts.  Held,  that  a  territorial  district 
court  has  jurisdiction  of  a  case  involving 
the  right  of  a  county  of  the  territory  to  tax 
a  corporation  chartered  by  congress,  the 
corporation  claiming  that  its  charter  ex- 
empts it  from  such  taxation.  Northern  Vac. 
R.  Co.  v.  Garland,  1 7  Am.  <&*  Eng.  R.  Cas. 
364,  5  Mont.  146,  3  Pac.  Rep.  134. 

1 8. District  Court  of  Nebraska. 

— In  trespass  against  a  company  for  build- 
ing a  railroad  over  the  plaintiff's  land  with- 
out condemning  a  right  of  way  the  com- 
pany, among  other  things,  pleaded  as  a 
defense  the  previous  condemnation  of  the 
right  of  way,  and  the  right  to  use  the  same. 
Held,  that  the  issues  made  by  the  pleadinjis 
raised  the  question  of  title  to  said  land,  and 
the  action  wa.,  properly  brought  in  the  dis- 
trict court.  Republican  Valley  R.  Co.  v. 
Fink,  28  Neb.  397,  44  A".  JV.  Rep.  434  ;  for- 
mer appeal    18   Neb.    82,    24   A^.    IV.   Rip. 

439- 
1».  Illinois  Court  of  Appeals. 

— Where  a  bill  involves  the  question  of 
franchise  of  a  railway  company,  the  court 
of  appeals  has  no  appellate  jurisdiction. 
Belleville  v.  Illinois  &*  St.  L.  R.  Co.,  49  ///. 
App.  301. 

Rut  it  has  jurisdiction  to  determine 
whether  a  franchise  is  involved  or  not. 
Citizens'  Horse  R,  Co.  v.  Belleville,  47  ///. 
App.  388. 


^*' 


JURISDICTION,  20,  21.— JUSTICE   OF  THE   PEACE. 


119 


30. Supreme  Court  of  Mussu- 

chusetts. -The  act  of  1S77,  ch,  234,  §  3, 
providing  that  any  person  injured  by  a  de- 
fective highway  may  bring  an  action  in  a 
superior  court  therefor,  does  not  apply  to 
an  action  of  tort  brought  under  the  statute 
of  i87i,ch.  3S1,  §  21,  against  a  strect-rail- 
road  company  for  an  injury  caused  by  a 
defective  tracic ;  and  the  supreme  court  of 
tiie  state  lias  jurisdiction  of  such  an  action, 
if  brought  prior  to  the  passage  of  the  act  of 
1880,  ch.  28.  Brookhouse  v.  Union  li.  Co., 
132  Mass.  178. 

31. Supreme  Court  oi'Missouri. 

— The  question  as  to  the  constitutionality 
of  the  sale  of  the  North  Missouri  and  that 
of  tlie  Missouri  Pacific  railroads,  under  the 
respective  acts  of  March  17th,  1868,  and 
March  31st,  1868,  concerns  the  property 
rights  of  the  state  and  the  vested  rights  of 
individuals  and  corporations,  and  cannot  be 
passed  upon  by  the  supreme  court  in  re- 
sponse to  resolutions  relating  thereto  by 
tlic  legislature.  In  re  North  Mo.  R.  Co.,  5 1 
Mo.^&e. 


JURY. 


Affidavits  of  jurors,  on  motion  for  new  trial, 
see  New  Trial,  lOl. 

Assessment  of  damages  by,  see  Damages, 
»»;  Eminent  Domain,  1170-1100; 
Streets  and  Highways,  262. 

Constitutionality  of  statute  providing  for 
appraisement  of  damages  without  jury, 
see  Animals,  Injuries  to,  8. 

Costs  of  inquiry  before,  in  England,  see  Emi- 
nent Domain,  1140. 

Discretionary  power  of,  in  assessing  dam- 
ages, see  Damages.  102,  lOO. 

as  to  amount  of  damages  for  causing 

death,  see  Death  by  Wrongful  Act, 
.•J  7  4. 

to  allow  interest  as  damages,  see 

Di:\TH  BY  Wrongful  Act,  438. 

Exemplary  damages,  how  far  in  discretion 
of,  see  Damages,  37  ;  Death  by  Wrong- 
vv\.  Act,  422. 

Exhibition  of  wounds  to,  see  Evidence,  41. 

Experiments  in  presence  of,  see  Trial,  43. 

Instructions  calculated  to  inflame  the  minds 
of  see  Employes.  Injuries  to,  0I>1. 

—  invading  the  province  of,  see  Animals,  In- 
juries TO,  574;  Appeal  and  Error, 
45 ;  Carriage  of  Passengers.  OOO  ; 
Children,  Injuries  to,  176;  Compara- 
tive Negligence,  lO;  Contributory 
Negligence,    118;    Death  by  Wrong- 


ful Act,  33o  ;  Emiloyls,  Injuries  to, 

650;  Trial,  144,  16U. 
Instructions  to,  in  action   for   damages  for 

wrongful  interference  with  property,  see 

Eminent  Domain,  1007. 
loss  of  baggage,  see  Baggage, 

1  *i*i 

on    assessment  of  land  damages,    see 

Eminent  Domain,  576-5U4. 
Jurors' fees,  see  Eminent  Domain,  781. 
Misconduct  of  jurors,  setting  aside  verdict 

for,    see    New    Trial,    11-13;    Trial, 

lOO. 
Objections  to  jurors  as  ground  for  new  trial, 

see  New  Trial,  10-15. 
how  to  be  taken,  see  Appeal  and 

Error,  03. 
oath  to,  how  to  be  taken,  see  Eminent 

Domain,  913. 
Opinion  of  witness  upon  question  for,    see 

Witnesses,  80. 
Prayers  for  instructions  invading  province 

of,  see  Deat;'  by  Wrongful  Act,  353. 
Questions  for,  see  Questions  of  Fact. 
Relative  functions  of  court  and,  see  Negli- 
gence, 75. 
Reversal  for  urging  agreement  by,  see  Appeal 

AND  Error,  52;  Trial,  147. 
Right  to  submit  special  questions  to,    see 

Trial,  202-205. 
trial  by,  see  Animals,  Injuries  to,  524; 

Eminent  Domain,  516-525  ;  Elevated 

Railways,  170-173;  Quo  Warranto, 

10 ;  Trial,  1-4. 
Sufficiency   of  evidence  to  go  to,  see   Evi- 
dence, 81,  286. 
Summoning  and  impaneling,  see  Trial,  27- 

35. 
Taking  objections  to  counsel's  address  to, 

see  Appeal  and  Error,  07. 
—  out  papers,  deliberation,  etc.,  see  Trial, 

186-188. 
To  examine  proposed  route,  see  Location  of 

Route.  O. 
Verdict  of,  in  condemnation  proceedings,  sec 

Eminent  Domain,  817-841. 
View  of  premises  by,  see  View. 
Withdrawing  evidence  from,  see  Animals, 

Injuries  to,  520. 


JUSTICE  OF  THE  PEACE. 

Actions  in  courts  of,  for  killing  stock,  see 
Animals.  Injuries  10,  605-641. 

Appeals  from,  in  stock  killing  cases,  see 
Animals,  Injuries  10,  632-638. 

Assessment  of  compensation  by,  in  Eng- 
land, sec  Eminent  Domain,  1166. 

Discretion  of,  in  stock-killing  cases,  see  Ani- 
mals, Injuries  to,  614. 


I 


120 


JUSTICE   OF   THE    PEACE,  1,2. 


';|5^ 


Enjoining  enforcement  of  judgments  of,  see 

Injunction,  4ii. 
When  certiorari  will  lie  to,  see  Certiorari, 

«. 

I.   JUBISOICTION  AND  FBOCEDUEE  IN 
JUSTICES'  COURTS 120 

II.  APPEALS  FROM  JUSTICES'  COURTS..   123 

I    JURISDICTION  AND  PROCEDURE  IN   JUS- 
TICES' COURTS. 

1.  What  matters  arc  within  the 
Jurisdiction. — A  justice  of  tlie  peace  lias 
jurisfiiction  of  an  action  to  recover  the 
penalty  imposed  upon  railroads  for  not 
stopping  trains  crossing  another  railroad 
upon  the  same  level,  where  the  evidence 
shows  a  similar  violation  at  another  road  a 
quarter  of  a  mile  distant.  It  is  not  neces- 
sary to  unite  the  two  causes  of  action,  and 
thereby  defeat  the  justice's  jurisdiction. 
Indianapolis  &>  St.  L.  R.  Co.  v.  People,  91 

III.  453. 

La.  Act  No.  7  of  1888,  giving  justices  of 
tlie  peace  jurisdiction  in  cases  of  trespass, 
is  not  a  local  or  special  law,  but  general  in 
its  character,  applying  to  all  magistrates' 
courts  and  to  all  corporations  throughout 
tlie  state.  State  ex  rel.  v.  Emory,  41  La. 
Ann.  1094.  6  So.  Rep.  795. 

Under  Mo.  Gen.  Railroad  Act,  §  12  (Rev. 
Code  1855.  414),  justices  of  the  peace  have 
jurisdiction  of  actions  brought  by  laborers 
against  railroad  corporations.  Mooney  v. 
Hannibal  ^^  St.  J-.  R.  Co.,  28  Mo.  570.— 
Quoted  in  Groves  v.  Kansas  City,  St.  J.  & 
C.  B.  R.  C<^.,  57  Mo.  yi'^.—Granna/ian  v. 
Hannibal  &^  St.  J.  R.  Co.,  30  Mo.  546.* 

The  fact  that  an  action  for  an  injury  to 
land,  caused  by  tire  from  an  engine,  alTects 
the  inheritance  does  not  deprive  a  justice 
of  the  peace  of  jurisdiction.  His  jurisdic- 
tion, witliin  the  prescribed  pecuniary  limits, 
extends  to  all  actions  founded  on  torts,  the 
only  exception  being  actions  in  which  the 
title  to  land  conies  into  question,  and  is  in 
issue.  Polhans  v.  Atchison,  T.  &*  S.  F.  R. 
Co..  45  Mo.  App.  153. 

Justices  of  the  peace  have  jurisdiction, 
subject  to  the  statutory  limitation  as  to 
amount,  over  actions  for  injuries  to  animals 
o'ccasioned  by  railway  trains  in  other  states. 
Heiter  v.  East  St.  Louis  Connecting;  R.  Co. , 
53  Mo.  .4pp.  331. 

Where  a  passenger  sues  a  street-car  com- 
pany to  recover  for  personal  injuries  caused 

*See  Missouri  case  in  next  section. 


through  the  negligence  of  the  driver  in 
turning  the  car  over,  it  is  not  an  action  for 
assault  and  battery  witliin  the  meaning  of 
N.  Y.  Code  Civ.  Pro.  iJ  2863,  giving  jus- 
tices of  the  peace  jurisdiction  of  sucli  ac- 
tions; but  it  is  for  "a  personal  injury," 
under  section  2862,  and  the  plaintiff  is  not 
entitled  to  costs,  unless  he  recovers  dam- 
ages to  the  amount  of  S50  or  more,  though 
the  damages  be  fixed  in  the  complaint  at  a 
much  larger  sum.  A'alisi't  v.  Pelham  Park 
R.  Co.,  20  Civ.  Pro.  315,  15  A'.  V,  Siipp. 
519. 

Under  the  Quebec  Railway  Act  a  justice 
of  the  peace  has  jurisdiction  to  entertain  a 
complaint  against  a  company  for  obstruct- 
ing a  highway.  St.  Joseph  v.  Quebec  C.  R. 
Co.,  n  Quebec  L.  R.  193. 

The  Dominion  Railway  Act  has  not  the 
effect  of  abrogating  the  provisions  of  the 
Quebec  liailway  Act  witli  respect  to  the 
local  railways  to  which  the  Dominion  act 
applies.  St.  Joseph  v.  Quebec  C.  R.  Co.,  11 
Quebec  L.  R.  193. 

A  company,  by  contract  under  £eal, 
bound  itself  to  make  and  maintain  neces- 
sary cattle  guards  at  the  boundary  lines  of 
the  premises  of  H.,  which  it  failed  and 
neglected  to  do.  Its  trains  running 
through  said  premises  frightened  and  drove 
H.'s  horse  off  his  premises,  through  the 
gap,  wliere  the  cattle-guard  was  to  be 
made,  into  the  premises  of  an  adjoining 
owner,  where  the  track  was  fenced,  whereby 
and  by  reason  whereof  said  train  struck  the 
horse  and  caused  its  death.  Heltl,  that  the 
company  may  be  sued  before  a  justice,  and 
held  liable  therefor,  as  for  a  wrong,  under 
W.  Va.  Code,  ch.  50,  §  26.  Harrow  v.  iViio 
River  R.  Co..  38  IV.  Va.  711. 

2.  ('iis<'  -i  over  which  a  justice  has 
not  ,jiiris<li«-tiou — Justices  of  the  peace 
have  no  jurisdiction  to  abate  a  railroad 
bridge  across  a  navigable  stream,  as  a  nui- 
sance, under  Ga.  Code,  ?  4023.  Macon  iS-» 
B.  R.  Co.  V.  State  ex  rel.,  50  Ga.  156. 

The  Missouri  statute  (Rev.  Code  1855, 
430).  ?  38,  declares  that  "  all  existing  rail- 
road corporations  shall  be  exempt  from  the 
jurisdiction  of  justices'  courts,  except  as  in 
this  act  and  in  their  own  charters  provided. " 
The  first  section  of  the  charter  of  defendant 
company,  after  enumerating  its  corporate 
powers,  declares  that  it  "may  sue  and  be 
sued,  plead  and  be  impleaded,  defend  and 
be  defended,  in  all  courts  and  places  what- 
soever."    Held,  that  this  provision   of   the 


,  '4. 


JUSTICE   OF   THE   PEACE,  3-5. 


131 


charter  did  not  give  justices  of  the  peace 
jurisdiction  of  actions  against  tlie  company. 
Fatchdl  V.  St.  Louis  (s*  I.  M.  A'.  Co.,  28 
Ah).  178. 

The  statute  does  not  confer  upon  justices 
of  the  peace  jurisdiction  of  suits  to  enforce 
liuiis  for  hibor  done  upon  a  railroad.  A  lien 
fi)r  labor  done  on  a  railroad  must  be  en- 
forced against  the  whole  road,  not  against 
si)  much  only  of  the  road  as  is  benefiied  by 
the  labor.  Cranston  v.  Union  Trust  Co.,  11 
Am.  iS-  Eng.  A'.  Cas.  638,  75  A/o.  29.— FoL- 
LOWKD  IN  Ireland  v.  Atchison,  T.  &  S.  F. 
R.Co.,  20  Ani.&Eng.  R.  Cas.  493, 79 Mo.  572. 

A  justice  of  the  peace  has  no  jurisdiction 
of  proceedings  of  forcible  entry  and  de- 
tainer, under  N.  C.  Rev.  Code,  ch.  49.  At- 
lantic; T.  (S^•  O.  R.  Co.  V.  Sharpe,  70  N.  Car. 

soy- 

By  N.  C.  Const,  art.  4,  §  33,  justices  of 
the  peace  have  no  jurisdiction  of  actions 
founded  in  tort.  Nance  v.  Carolina  C.  K. 
Co.,  76  iV.  Car.  9. 

3.  Jurisdiction  as  ilepcudeut  ou 
nnioiiiit.  —  Under  the  constitution  and 
statutes  of  Alabama  the  jurisdiction  of  jus- 
tices of  the  peace  in  actions  of  tort  is  lim- 
ited to  S50;  and  therefore  Ala.  Code  1886, 
§  1149,  giving  a  justice  jurisdiction  of  an 
action  against  a  railroad  for  tort,  where  the 
sum  in  controversy  does  not  exceed  $100,  is 
a  discrimination  between  a  railroad  com- 
pany and  other  parties,  and  is  unconstitu- 
tional. Bro^vn  v.  Alabama  G.  S.  K.  Co.,  87 
Ahx.  370,  6  So.  Rep.  295. 

Where  the  action  is  to  recover  the  value 
of  live  stock  killed,  the  test  of  the  juris- 
diction of  a  justice's  court  is  the  value  of 
the  properly  sued  for,  unless  the  court  or 
jury  is  satisfied  that  the  amount  has  been 
intentionally  diminished  for  the  purpose  of 
5,'iving  the  justice  jurisdiction;  but  an  hon- 
est mistake  of  the  plaintiff  as  to  the  value 
will  not  defeat  the  action  ;  but  the  verdict 
ninst  be  limited  to  the  amount  of  the  jus- 
tice's jurisdiction,  with  interest.  Ross  v. 
Xatclua,/.  &^  C.  R.  Co.,  61  Miss.  12. 

In  Missouri  justices  of  the  peace  now 
have  jurisdiction  over  contracts  of  affreight- 
ment made  by  railroad  companies  to  the 
extent  of  $90.  Williams  v.  North  Mo.  R. 
Co.,  50  Mo.  433,  3  Am.  Ry.  Rep.  258. 

An  action  to  recover  the  penalty  imposed 
upon  a  company  for  failure  to  forward 
freight,  by  N.  C.  Laws  1874-75,  ch.  240,  is 
an  action  ex  contractu;  and  whan  the  sum 
demanded  does  not  exceed  $200,  a  justice  of 


the  peace  has  jurisdiction.  Katzenstein  v. 
Raleigh  6-  G.  R.  Co.,  6  Am.  &>  Eng.  R.  Cas. 
464,  84  N.  Car.  688. 

An  action  by  a  passenger  against  a  com- 
pany for  violation  of  a  contract  of  carriage 
is  cognizable  in  a  justice's  court,  wher»  the 
complaint  shows  upon  its  face  that  the  claim 
asserted  is  less  than  $200;  and  the  court 
will  ex  mero  motu  take  notice  of  the  want 
of  jurisdiction.     Hannah   v.  Richmond  jSm 

D.  R.  Co.,  10  Am.  &•  Eng.  R.  Cas.  737,  87 
N.  Car.  351. 

In  determining  the  question  of  jurisdic- 
tion in  an  action  for  a  wrong  before  a  justice 
of  the  peace,  the  amount  claimed  in  the 
suii.iiions,  and  not  the  damage  shown  by 
the  testimony,  must  control.  Ste^aart  v. 
Baltimore  &•  O.  R.  Co.,  33  W.   Va.  88,  10  S. 

E.  Rep.  26. 

4. or  on  locality. — The  provision 

of  La.  Code  of  Prac.  art.  165,  No.  9,  making 
corporations  committing  trespass  or  doing 
damage  "  liable  to  be  sued  in  the  parish 
where  such  damage  is  done  or  trespass  com- 
mitted," does  not  confer  jurisdiction  of  such 
action  upon  justices  of  the  peace  away  from 
the  corporate  domicil,  as  the  provision  of 
the  article  is  limited  by  Title  4  of  the  Code, 
arts.  1069,  1070,  which  expressly  forbid  jus- 
tices from  exercising  jurisdiction  over  de- 
fendants domiciled  in  the  state,  outside  of 
their  territorial  limits.  State  ex  rel.  v. 
Huft,  39  La.  Ann.  990,  3  So.  Rep.  180. 

Such  case  is  not  affected  by  the  fact  that 
the  provision  of  the  above  art.  165,  No.  9,  is 
also  embodied  in  the  Rev.  St.,  §  725.  The 
same  legislature  adopted  the  revised  stat- 
utes and  the  code  of  practice,  and  in  cases 
of  conflict  gave  precedence  to  the  latter. 
By  embodying  the  provision  as  an  amend- 
ment to  art.  165,  and  by  leaving  arts.  1069, 
1070,  unchanged,  the  legislative  intent  is 
fully  indicated  to  maintain  the  latter  in  full 
force.  State  ex  rel.  v.  Huft,  39  La.  Ann. 
990,  3  So.  Rep.  180. 

5.  Proces-s,  and  service  thereof.— 
Where  a  declaration  in  a  justice's  court 
sets  out  fully  a  cause  of  action  against  a  lail- 
road  company  for  damages  to  personalty, 
and  a  summons  and  copy  of  the  declaration 
attached  thereto  and  referred  to  therein 
were  served  on  the  agent  of  the  road,  the 
action  against  the  company  was  not  fatally 
defective  because  the  summons  was  di- 
rected to  the  agent  as  such,  instead  of  being 
to  the  road  itself.  Western  &^  A.  R.  Co.  v. 
Kirkpatrick,  66  Ga.  86. 


■'■^;    i 


122 


JUSTICE   OF   THE    PEACE,  0-8. 


In  the  absence  of  statutory  regulations  to 
the  contrary  the  ordinary  long  summons  is 
tlie  proper  process  for  a  justice's  court.  In 
cases  of  corporations  no  provision  is  made 
for  process  by  warrant,  or  attachment,  or 
short  summons.  The  provisions  o(  process 
by  warrant, attachment,  and  short  summons 
are  for  suits  against  natural  persons  and  not 
corporations.  Johnson  v.  Cayuga  <S^  S.  R. 
Co.,  II  Barb.  (xV.  Y.)  621.— Followed  in 
Belden  v.  New  York  &  H.  R.  Co.,  15  How. 
Pr.  (N.  Y.)  17. 

A  constable  returned  a  summons  issued 
by  a  justice  against  a  railroad  company,  in- 
dorsed "  personally  served  and  by  copy  on 
E.  L.  VV.,  managing  agent  of  the  defend- 
ants." Held,  that  this  was  sufficient  to 
give  the  justice  jurisdiction,  as  the  con- 
stable was  not  bound  to  require  evidence 
iliat  such  person  was  an  agent  of  the  com- 
pany ;  and  such  return  could  not  be  at- 
tacked collaterally  for  the  purpose  of  de- 
feating the  judgment.  New  York  &*  E.  A'. 
Co.  v.  Punfy,  18  Bari.  {N.  Y.)  574. 

A  "idgment  pronounced  by  a  justice  with- 
out service  of  process  upon  or  notice  to  the 
defendant  is  void.  But  as  such  judgment 
may  be  set  aside,  even  when  rendered  upon 
the  verdict  of  a  jury,  by  the  circuit  court 
upon  certiorari,  the  defendant  in  the  judg- 
ment cannot  obtain  relief  against  it  in  a 
court  of  equity.  Kanaiuha  «S«»  O.  R.  Co,  v. 
Ryan,  31    W.  Va.  364,  6  S.  E.  Rep.  924. 

6.  Pleading:,  tjeiierally.* — Wliere  a 
company  is  sued  before  a  justice  for  killing 
live  stock  at  a  public  crossing,  it  is  compe- 
tent for  the  plaintiff  to  unite  in  one  state- 
ment negligence  on  the  part  of  the  com- 


pany 'n  I' 

n-^;;!!;.  •■ncc 
■Ml.   .    c.id 

l.'.UI'  ■     o  '    ' 

was  c.  I.  ■:. 


ig  lo  ring  a  bell  or  sound  a 
?quired  by  statute,  and  also 
•'ifc  manner  of  running  the 
:i:o\ery  may  be  had   under 
*'    "on  proof  that  the  injury 
'-\    .V.    Lynn  v.  Chicago,  R.  I. 
<S>»  P.  R.  Co.,  75  MO.  167. 

In  a  suit  against  a  company  in  a  justice's 
court  it  is  not  required  that  plaintiff  should 
allege,  as  is  required  in  district  and  county 
courts  in  such  suits,  that  defendant  "  was  a 
corporation  duly  incorporated."  Texas  <S>» 
P.  R.  Co.  V.  Miller,  \  Tex.  App.  (Civ.  Cas.) 
104. 

7.  Complaint  or  petition.— In  jus- 
tices' courts  pleadings  in  actions  to  recover 


•  Pleading   in  actions  before  justices  of  the 
peace,  see  note,  19  Am.  &  Eng.  R.  Cas.  605. 


on  accounts  may  be  oral,  and  the  plaintiff  at 
the  trial  may  prove  such  facts  as  will  entitle 
him  to  recover  without  alleging  them  in  a 
written  complaint.  So  a  railroad  company 
cannot  take  advantage  of  a  suit  before  a 
justice,  where  it  is  sued  on  an  account  that 
merely  shows  on  its  face  that  the  suit  is  for 
services  rendered  another  company.  Gt///, 
C.  <&^  5.  /•".  R.  Co.  V.  Hutcheson,  3  Tex.  Ap/>. 
{Civ.  Cas.)  120. 

The  Alabama  statute  of  amendments  is 
exceedingly  liberal,  but  it  is  never  permis- 
sible to  strike  out  a  party,  either  plaintiff  or 
defendant,  and  insert  another.  So  where 
an  individual  issued  as  president  of  a  desig- 
nated railroad  company,  a  complaint  filed 
against  the  railroad  company  itself,  on  ap- 
peal to  the  circuit  court,  should  have  been 
stricken  out.  Davis  Ave.  R.  Co.  v.  Mallon, 
57  Ala.  168,  20  Am.  Ry.  Rep.  405. 

A  complaint  before  a  justice  claimed  a 
certain  sum  of  money  from  defendant  com- 
pany "  for  the  loss  of  a  trunk  and  the  con- 
tents of  it,"  and  the  company  denied  the 
claim  made  by  the  petition  generally  and 
went  to  trial.  At  the  trial  the  company 
objected  to  evidence  of  plaintiff  to  prove 
that  the  trunk  was  delivered  to  an  officer 
of  the  company  to  be  transported  as  bag- 
gage. Held,  that  it  was  not  necessary  to 
set  out  the  particular  manner  of  the  loss,  or 
how  the  trunk  came  to  the  hands  of  defend- 
ants, to  authorize  the  proof,  but  plaintiff 
might  prove  whatever  was  necessary  to 
establish  the  cause  of  action  alleged.  If 
the  statement  or  complaint  was  not  suffi- 
ciently specific,  the  company  should  have 
moved  to  make  it  more  specific  instead  of 
pleading  generally.  Byers  v.  Des  Moines 
Valley  R.  Co.,  21  Iowa  54. 

8.  Statement.  —  The  same  complete- 
ness requisite  to  a  petition  in  the  circuit 
court  has  never  been  required  in  an  action 
before  a  justice.  It  is  sufficient  if  the  state- 
ment in  such  an  action  advise  the  opposite 
party  of  the  nature  of  the  claim,  and  be 
sufficiently  specific  to  be  a  bar  to  another 
action.  Razor  v.  St.  Louis,  I.  M.  &>  t^.  R. 
Co.,  7  Am.  &•  Eng.  R.  Cas.  562,  73  Mo.  471. 
—Followed  in  Key  z/.  St.  Louis,  I.  M.  &  S. 
R.  Co.,  7  Am.  &  Eng.  R.  Cas.  565,  73  Mo. 
475.— A't;y  V.  St.  Louis,  /.  Af.  &>  S.  R.  Co..  7 
Am.  6*  Eng.  R.  Cas.  565,  73  Mo.  475.— For.- 
lowed  in  Clardy  v.  St.  Louis.  I.  M.  &  S.  R. 
Co.,  7  Am.  &  Eng.  R.  Cas.  555,  73  Mo.  576. 
— GiMs  V.  Missouri  Pac.  R.  Co.,  11  Mo.  App- 
459- 


JUSTICE   OF   THE    PEACE,  «-il. 


123 


A  statement  for  damages  to  plaiiitiflf's 
hay  caused  by  fire  emitted  from  the  defend- 
ant company's  railroad  train  is  sufficient 
after  verdict,  although  it  contains  no  allega- 
tion of  negligence.  Polhans  v.  Atchison,  T. 
&^  S.  F.  R.  Co.,  1 1 5  J/o.  535,  22  5.  IV.  Rep. 
478 ;  affirming  45  Mo.  App.  1 53. 

A  statement  as  follows:  "St.  Louis  and 
San  Francisco  Railway  Company  to  Theo. 
J.  Witting,  Dr.  To  damages  in  negligently 
breaking  soda  apparatus  shipped  May  2, 
18S4,  from  Oswego,  Kansas,  to  St.  Louis, 
Missouri,  two  hundred  dollars,"  is  sufficient, 
as  it  not  only  informed  the  defendant  of 
the  nature  of  plaintiff's  claim,  but  a  judg- 
ment on  it  would  bar  another  action. 
Witting  V.  St.  Louis  Sf  S.  F.  R.  Co.,  45 
Aw.  &*  Eng.  R.  Cas.  369,  101  Mo.  631,  14 
S.  IV.  Rep.  743. 

But  a  statement :  "  Pacific  Express  Com- 
pany, bought  of  George  Leas,  one  crank 
shaft  for  four  by  six  engine,  $18.  This 
shaft  was  shipped,  C.  O.  D.,  to  Frank  E. 
Wells,  Eufala,  Indian  Territory,  May  31. 
Broken  by  Pacific  Company,"  is  insufficient, 
as  it  does  not  appear  whether  it  is  based  on 
contract  or  negl igence.  Leas  v.  Pacific  Exp. 
Co.,  45  Mo.  App.  598. 

Although  particularity  of  statement  is  not 
required,  yet  where,  in  the  statement  of  his 
cause  of  action,  the  plaintiff  chooses  his 
(jround  he  is  properly  confined  to  that 
ground.  Held,  accordingly,  that,  having 
merely  alleged  that  the  defendant  had  been 
guilty  of  negligence  in  not  giving  her  time 
to  alight,  the  plaintiff  could  not  depend 
upon  the  fact  that  the  door  of  the  car  had 
been  left  ajar  and  unfastened  as  an  act  of 
negligence.  Madden  v.  Missouri  Pac.  R. 
Co.,  50  Mo.  App.  666. 

0.  Account. — An  account  filed  as  the 
basis  of  a  suit  before  a  justice,  and  purport. 
ing  to  be  for  a  certain  amount  "  for  wages 
as  common  laborer,  ten  days,"  is  sufficient ; 
the  designation  of  the  time  of  the  rendition 
of  the  services  is  not  essential.  Grabbe  v. 
St.  Louis  Drayage  Co.,  42  Mo.  App.  522. 

A  suit  before  a  justice  against  a  company 
to  recover  damages  for  failing  to  deliver 
goods  is  sufficient  where  it  is  presented  as 
an  account  against  the  company  and  dated, 
"To  amount  of  draft  paid  C.  S.  &  Co.  for  the 
detention  of  goods,  as  per  attached  invoice, 
and  interest  and  damages,  $195."  The  law 
does  not  require  any  written  statement  in 
such  suits  before  a  justice,  and  one  having 
been  made,  if  it  was  imperfect,  it  could  be 


amended  orally,  either  before  the  justice  or 
in  court  on  appeal.  Texas  &*  P.  R.  Co.  v. 
Wright,  2  Tex.  App.  (Civ.  Cas.)  292. 

10.  Procedure  uiitler  Eiit^lish  stat- 
utes.— In  proceedings  before  .1  justice,  un- 
der the  Railway  Clauses  Act  1845,  it  is  not 
necessary  to  negative  the  fact  that  he  is  in- 
terested, and  the  objection  may  be  waived 
by  the  party  against  whom  the  interest  is 
alleged  to  exist.  Wakefield  v.  U'est  Riding 
&•  G.  R.  Co.,  10  Cox  C.  C.  162,  6  B.  &^  .s., 
794,  \2jur.  N.S.  160.  13  L.  T.  590,  35  Z,.  /. 
M.  C.  69,  14  W.  R.  100. 

An  order  by  justices  under  8  &  9  Vict.  c. 
20,  s.  58,  to  compel  a  railway  company  to 
repair  highways,  describing  the  justices  as 
justices  "  in  and  for  the  said  borough  of  W.," 
is  sufficient.  Wakefield  v.  West  Riding  &* 
G.  R.  Co.,  6  Zr.  (S-  5.  794. 

U.  APPEALS  FROM  JUSTICES'  COURTS. 

11.  W^iat  is  appealable— HiKlit  to 
appeal. — The  decision  ot  the  county  court 
on  an  appeal  from  a  justice  of  the  peace  is 
final,  and  a  writ  of  error  will  not  lie  to  the 
high  court  of  errors  and  appeals  to  review 
the  decision  of  the  county  court  on  such 
appeal.  Mississippi  C.  R.  Co.  v.  Kennedy, 
41  Miss.  551. 

Payment  of  costs  is  not  a  prerequisite  to 
the  right  of  appeal  from  a  justice,  where  a 
motion  to  set  aside  a  default  has  been  filed 
and  overruled.  The  filing  and  overruling 
of  the  motion  is  all  that  is  necessary  to  the 
right  under  the  statute,  and  the  statute  of 
1855  (Wagn.  Mo.  St.  832,  §  17)  in  no  way 
abridges  the  right  of  appeal.  The  intent  of 
the  statute  is  merely  to  prevent  a  justice 
from  prescribing  any  other  conditions  than 
payment  of  costs  for  setting  aside  a  default. 
Palmer  v.  Kansas  City.  St  J.  <S-  C.  B.  R.  Co., 
57  Mo.  249. — Followed  in  Hooker  v.  At- 
lantic &  P.  R.  Co.,  63  Mo.  449. 

An  agent  may  appear  before  a  justice  and 
take  an  appeal.  The  justice  is  the  judge  of 
the  agent's  authority,  which,  it  must  be  pre- 
sumed, was  satisfactorily  shown.  Jones  v. 
Delaware  &*  H.  Canal  Co.,  10  Phila.  (Pa.) 
570. 

Defendants  subscribed  to  a  share  of  stock 
in  plaintiff's  company,  amounting  to  $100, 
to  be  paid  in  ten  equal  instalments,  at 
periods  of  at  least  sixty  days,  no  part  to  be 
payable  until  the  road  had  been  located  and 
a  certain  portion  of  it  put  under  contract. 
The  declaration,  in  a  suit  before  a  justice, 
averred  performance  of  the  condition,  and 


■"  i 


I   -^ 


124 


JUSTICE   OF   THE    PEACE,   lU-18. 


claimed  to  recover  one  of  tlie  instalments 
under  an  ad  daninuin  of  Sio.  Held,  that 
the  action  was  appealable.  Connecticut  &^ 
/'.  A'.  A'.  Co.,  V.  Hates,  32  Vt.  420. 

12.  Jiirisdictitmul  Hiiiuiiiit.— Where 
the  amount  in  controversy  and  the  judg- 
ment in  a  justice's  court  is  less  than  $20,  the 
statutory  attorney  fee  allowed  (in  damage 
suits  aij;ainst  a  railway  company)  cannot  be 
added  to  the  judgment,  and  thus  confer 
jurisdiction  on  appeal.  Gulf,  C.  &•  S.  F, 
K.  Co.  V.  Fanner,  3  Tex.  Civ.  App.  458,  22 
5.  /r.  Rep.  515. 

\'A.  Tiiiii>  within  which  to  appeal. 
— A  corporation,  although  chartered  in  an- 
other state,  which  keeps  an  office  or  agent 
in  Missouri  for  the  transaction  of  its  usual 
and  customary  business  has  a  legal  resi- 
dence there  in  the  county  of  such  office  or 
agent,  and  must  prosecute  its  appeals  from 
the  judgment  of  a  justice  of  the  peace  with- 
in ten  days  after  rendition  thereof.  Hard- 
/;/(,'■  V.  Chicago  &>  A.  R.  Co.,  80  Mo.  659, — 
Quoting  Baldwin  v.  Mississippi  &  M.  R. 
Co.,  5  Iowa  518;  St.  Louis  w.  Wiggins  Ferry 
Co.,  40  Mo.  581. — Crutsinger  v.  Missouri 
Pac.  R.  Co.,  82  Mo.  64. 

14.  The  boiMl.— A  company  in  appeal- 
ing from  a  justice  to  the  county  court  gave 
bond  which  described  the  judgment  as 
against  the  "Texas  Pacific  R.  Co.";  the 
transcript  showed  that  the  judgmeni  was 
ai;ainst  "  The  Texas  and  Pacific  R.  Co." 
Held,  that  it  was  apparent  that  the  omis- 
sion of  the  word  "  and  "  from  the  corporate 
name  was  a  mere  clerical  error,  and  did  not 
afTect  the  validity  of  the  bond.  Texas  &* 
P.  R.  Co.  V.  McCumsey,  3  Tex.  App.  (Civ. 
Cas.)  321. 

15.  Notice  of  appeal.— -When  an  ap- 
peal from  the  judgment  of  a  justice  is  not 
taken  on  the  same  day  that  it  was  rendered, 
and  no  notice  of  such  appeal  is  given,  it 
cannot  be  tried  at  the  first  term  of  the  ap- 
pellate court  unless  by  the  consent  of  both 
parties,  or  unless  the  appellee  shall  enter 
his  appearance  on  or  before  the  second  day 
of  such  term.  Blakely  v.  Missouri  Pac.  R. 
Co  ,  79  Mo.  342. 

The  proof  filed  with  a  justice  of  the  ser- 
vice of  a  notice  of  appeal  from  a  judgment 
rendered  by  such  justice  is  of  no  effect  if  it 
shows  only  a  delivery  of  the  notice  to  the 
wife  of  the  person  upon  whom  service 
should  be  made,  without  showing  that  such 
substituted  service  was  "  at  the  residence  " 
of  such  person.     Stolt  v.  Chicago,  M.  &^  St. 


P.  R.  Co.,  49  Minn.  353,   Ji   N.   W.  Rep. 
1103. 
1«.  Justice's  return— Allowance  of 

appeal.— Where  a  company  is  sued  before 
a  justice  for  killing  live  stock,  and  the  error 
assigned  is  tliat  tlie  court  below  failed  to 
grant  a  certiorari  to  the  judgment  of  the 
justice,  the  return  of  the  justice  is  neces- 
sary to  enable  the  appellate  court  to  deter- 
mine whether  there  is  error  or  not.  Geor- 
gia R.  Co.  V.  Fisk,  65  Ga.  714. 

Mandamus  will  not  lie  to  compel  a  jus- 
tice of  the  peace  to  grant  an  appeal.  The 
remedy  in  "such  a  case,  under  Wagn.  Mo. 
Stat.  849,  §  10,  is  by  rule  and  attachment 
from  the  circuit  court.  Chicago,  R.  I.  &^ 
P.  R.  Co.  V.  Franks,  55  Mo.  325. 

17.  Trial  (ie  novo  in  appellate 
court.— On  appeal  from  a  justice,  where 
the  matter  in  controversy  exceeds  the  sum 
of  twenty  dollars,  the  parties  are  entitled 
to  a  jury  trial,  and  a  statement  of  cause 
of  action  must  be  filed,  and  issue  formed, 
which  can  be  submitted  to  the  jury.  Mobile 
&*  O.  R.  Co.  V.  IViUiams,  53  Ala.  595,  13 
Am.  Ry.  Rep.  153, 

Where  on  an  appeal  to  the  circuit  court 
from  a  justice  the  appellant  fails  to  give 
notice  of  the  appearand  the  appellee  enters 
his  appearance  on  or  before  tlie  second  dav 
of  the  term,  the  latter  is  not  then  entitled 
to  a  simple  affirmance  of  judgment.  If  he 
desires  a  determination  of  the  cause  at  that 
term,  he  must  offer  evidence  and  try  the 
case  de  novo.  Priest  v.  Missouri  Pac.  R. 
Co.,  85  Mo.  521. — Reviewing  Nayt/.  Han- 
nibal &  St.  J.  R.  Co.,  51  Mo.  575.— Over- 
ruled IN  Holloman  v.  St.  Louis,  L  M.  «St 
S.  R.  Co.,  92  Mo.  284. 

The  judgment  of  a  justice  when  entered 
upon  the  verdict  of  six  jurors,  in  an  action 
by  a  passenger  for  personal  injuries,  in  which 
no  defense  is  made,  cannot  be  tried  de  nffi>o 
on  appeal  to  the  circuit  court,  under  a  pro- 
vision of  the  W.  Va.  constitution  provid- 
ing that  in  suits  at  common  law,  where 
value  in  controversy  exceeds  $20,  exclusive 
of  interest  and  costs,  the  right  of  trial  by 
jury  sliall  be  preserved,  and  that  a  fact  tried 
by  a  jury  shall  not  be  otherwise  re-examined 
than  according  to  the  rules  of  the  common 
law.  Hickman  v.  Baltimore  «S-  O.  R.  Co.,  30 
W.  Va.  296,  4  S.  E.  Rep.  654. 

18.  Strilciuf?  out  plea— Dismissal 
of  appeal.  —  Where  an  appeal  is  taken 
from  a  judgment  by  default  before  a  jus- 
tice, without  the   party  aggrieved  having. 


JUSTICE    OF   THE    PEACE,   10-UJl. 


125 


within  ten  days  from  the  rendition  of  the 
judgment,  moved  to  set  tli«  same  aside,  it 
is  properly  dismissed,  on  motion,  in  tiie 
circuit  court.  Mo.  Rev.  St.  §  3040.  The 
justice,  in  such  case,  having  no  power  to 
grant  the  appeal,  the  appeal  bond  is  void, 
so  far  as  the  sureties  are  concerned,  and 
tiie  circuit  court  cannot  enter  judgment 
against  them,  but  can  only  dismiss  the  ap- 
peal and  enter  judgment  for  costs  against 
the  appellant.  lirown  v.  Mhsouri  Puc.  A". 
R.  Co.,  85  A/o.  123. 

Suit  was  instituted  to  recover  $19.50,  the 
value  of  a  steer  killed.  Under  a  plea  of  re- 
convention the  company  claimed  $25  actual 
and  S80  exemplary  damages  upon  the  ground 
that  the  suit  was  instituted  without  probable 
cause,  and  with  the  intent  to  vex,  har.nss, 
and  annoy  the  company.  On  appeal  to  the 
county  court  the  plaintifT  moved  to  strike 
out  the  plea  on  the  ground  that  it  presented 
no  cause  of  action,  and  that  it  was  pleaded 
in  order  to  give  the  county  court  jurisdic- 
tion. He/tl,  that  it  was  correct  to  strike  out 
the  plea  and  dismiss  the  appeal.  (j»//,  C. 
&>  S.  F.  A\  Co.  V.  Hewson,  3  Tex.  App.  (Civ. 
Ciis.)  303. 

Suit  was  instituted  before  a  justice  to  re- 
cover $19.50  for  the  value  of  a  steer  killed. 
Among  other  things  the  company  set  up 
the  plea  that  it  was  damaged  in  the  sum  of 
$25  (or  loss  of  steam  and  air  and  momentum 
in  stopping  the  train  to  try  to  avoid  the 
killing,  and  $10  for  loss  of  time  of  the  train- 
men, and  $25  for  damages  to  the  locomo- 
tive. On  appeal  to  the  county  court  the 
plea  was  stricken  out,  and  the  appeal  dis- 
missed. HfM,  error.  As  tlie  matter  grew 
out  of  the  same  transaction,  and  the  facts 
alleged  in  the  plea  constituted  a  valid  cause 
of  action,  the  plea  should  have  been  sus- 
tained, and  as  the  amount  claimed  gave  the 
county  court  jurisdiction,  the  case  should 
have  been  tried  tie  novo.  Gulf,  C,  <&>•  5.  F. 
R.  Co.  V.  Tacquard,  3  Tex.  App.  {Civ.  Cas.) 

305- 

1».  What  irregularities  will  ho 
clfHret^ardetl. — The  failure  of  a  defendant 
to  interpose  a  defense  in  the  justice's  court 
does  not  preclude  him  from  defending  in 
the  circuit  court  on  appeal.  Illinois  C.  K. 
Co.  v.  Andrews,  61  Miss.  474. 

In  an  action  for  an  injury  which  must 
have  been  committed  either  in  the  town- 
ship where  the  justice  resides,  or  in  adjoin- 
ini;  township,  if  the  necessary  jurisdictional 
f;ict  was  clearly  proved  in  the  circuit  court, 


and  the  same  fact  is  admiltfd  by  counsel 
for  the  appellant  in  their  printed  argument 
before  the  appellate  court,  tliere  can  be  no 
reversal  on  the  sole  ground  that  such  juris- 
dictional fact  did  not  appear  in  the  state- 
ment filed  with  the  justice.  Fitzpatfck  v. 
Missouri  Pac.  R.  Co.,  34  Mo.  App.  2 So. 

20.  Krrors  waived  hy  appealiiiK*— 
A  deleniiant  in  a  case  before  a  justice  by 
appealing  waives  all  errors  in  the  suinnions 
and  its  service,  e.  g.,  that  a  copy  of  the 
statement  filed  with  the  justice  was  not 
served  on  the  defendant.  Witting  v.  >/. 
Louis  Sf  S.  F.  R.  Co.,  45  Am.  &>  Kng.  R.  Cixs. 
369,  101  Mo.  631,  14  S.  \V.  Rep.  743. 

The  taking  of  an  appeal  is  equivalent  to  a 
general  appearance  to  the  meiits  in  the  cir- 
cuit court.  Rice  v.  .SV.  Louis,  I.  M.  &^  S. 
R.  Co.,  30  Mo.  App.  IK).  I'itzpatrick  v. 
Missouri  Ptic.  R.  Co.,  34  Mo.  App.  280. 

21.  Review  hy  certiorari. — Where 
a  justice  in  a  suit  involving  a  matter  merely 
pecuniary  has  jurisdiction  of  the  subject- 
matter  and  of  the  person,  and  renders  a 
bona  fide  judgment  on  the  merits  clearly 
wrong,  but  within  the  scope  of  his  legitimate 
powers,  the  circuit  court  will  not,  upon  a 
certiorari  issued  in  the  exercise  of  its  origi- 
nal supervisory  jurisdiction  conferred  by 
the  constitution,  review  and  reverse  such 
judgment,  but  will  dismiss  the  writ  as  im- 
providently  awarded.  Wilson  v.  West  Vir- 
ginia C.  &•  P.  R.  Co.,  38  W.  Frt.  212,  18  S. 
E.  Rep.  577. 

22.  Aineiidinents  on  appeal.  — 
Where  a  suit  is  commenced  against  a  com- 
pany before  a  justice  in  assumpsit,  upon  "an 
account  stated,  $to."  an  amendment  cannot 
be  allowed,  upon  its  removal  to  a  court 
where  a  trial  de  novo  is  had,  so  as  to  con- 
vert it  into  an  action  for  a  tort  for  negli- 
gently killing  stock.  Smith  v.  East  Tenn., 
V.  &>  G.  R.  Co.,  98  Ala.  154,  13  So.  Rep.  784. 

23.  Errors  not  properly  ohjeeted 
to  helow. — A  point  of  law  involved  in  a 
cause  before  a  justice  cannot  be  reviewed 
on  writ  of  error  unless  it  was  in  some 
proper  way  raised  before  the  justice  and 
ruled  on  by  him.  And  when  the  question 
was  as  to  the  right  of  plaintiff  to  recover 
exemplary  damages,  as  claimed  by  him  in 
his  petition,  but  no  ruling  on  the  point  was 
asked  or  secured  until  after  a  verdict  had 
been  returned  awarding  such  damages,  it 
was  then  too  late  to  raise  the  point;  for  the 
justice  had  no  power  to  set  the  verdict 
aside  or  to  arrest  the  judgment,  and  he  had 


13G  JUSTICK   OF   THE    PEACE,  24.— KANSAS    PACIFIC    R.  CO.,  1. 


« 


no  alternative  but  to  render  judgficnt  on 
the  verdict.  Atkinson  v.  Cliiciigo  &^  N.  IV, 
a.  Co.,  70  /ou>a  68,  29  A'.  JV,  Rep.  808. 

It  is  not  enouf;li,  in  order  to  overthrow  a 
judgment  of  the  circuit  court  allirming  a 
judgment  of  a  justice's  court  when  notice  of 
appeal  to  the  circuit  court  was  not  given, 
tiiat  tiie  petition  filed  in  the  justice's  court 
shows  on  its  face  that  the  cause  of  action 
was  barred  by  the  statute  of  limitations. 
To  avail  himself  of  this  in  the  circuit  court, 
the  appellant  must  brmg  the  opposite  party 
there  by  complying  with  the  statute,  and 
plead  the  statute  or  file  a  motion  to  dismiss 
the  cause,  or,  in  case  of  a  trial  de  novo  in 
the  circuit  court,  ask  an  instruction  covering 


the  point.  If  he  fails  to  prosecute  his  ap- 
peal, he  is  not  in  a  sil-uation  to  raise  the 
question  in  the  circuit  court.  Cooksey  v. 
Kansas  City,  St.  J.  iS-  C.  Ji.  A'.  Co.,  17  i1/o. 
App.  132.— Following  Kevelle?'.  St.  Louis, 
I.  M.  &  S.  K,  Co..  74  Mo.  438. 

24.  Attiriiiaiicc  for  want  of  proso- 
cntioii. — .An  appeilee,  in  a  cause  appealed 
to  the  circuit  court  from  a  justice,  is  en- 
titled, where  tlie  cause  is  ready  for  trial  and 
the  a[)pellant  fails  to  prosecute  his  appeal, 
to  a  judgment  of  atTirmanre.  Hollotnau  v. 
St.  Louis,  I.  M.  &*  S.  A".  Co.,  92  Jl/o.  2S4.  5 
S.  IV.  Rep.  I.  — OvKRRULiNG  Berry  v. 
Union  Trust  Co.,  75  Mo.  430;  Priest  v.  Mis- 
souri  Pac.  R.  Co.,  85  Mo.  521. 


K 


KANSAS. 

Assessment  and  levy  of  taxes  in,  see  Tax- 
ation, 2«0. 

Constitutional  provisions  in,  relative  to  con- 
demnation of  land,  see  Eminent  Domain, 
10. 

Constitutionality  of  statutes  of,  as  to  con- 
demnation of  land,  see  Eminent  Domain, 
30. 

municipal  aid  for  railways, 

see  Municipal  and  Local  Aid.  32. 

tax  laws  of,  see  Taxation,  27. 

Deductions  for  benefits  under  condemnation 
laws  of,  see  Eminent  Domain,  735. 

Doctrine  of  comparative  negligence,  how  far 
applied  in,  see  Comparative  Negligence, 
22. 

Federal  grants  to,  see  Land  Grants,  27- 
30. 

Grants  by,  to  railroads,  see  Land  Grants, 
117. 

Homesteads  in  public  lands  in,  see  Public 
Lands,  6. 

Injuries  to  animals  running  at  large  in,  see 
Animals,  Injuries  to,  240,  268. 

Liability  of  company  to  laborers  employed  by 
contractors  in,  see  Construction  of 
Railways,  89. 

Mechanics'  lien  law  of,  see  Liens,  8. 

Review  of  town  bonding  proceedings  by 
mandamus  in,  see  Municipal  and  Local 
Aid,  446. 

Statute  of.  regulating  liability  for  injuries 
caused  by  fire,  see  Firks,  5. 

to  servant  for  injuries  caused  by 

negligence  of  fellow- servants,  see  Fel- 
low-servants. 178-182. 

Statutes  of.  relative  to  condemning  right  of 
way  through  streets,  see  Streets  and 
Highways,  116. 


distribution  of  damages  for  causing 

death,  see  Dkath  hv  Wrongful  Act,  60. 
Statutory  duty  of  company  in  construction  oi 

street  crossing  railway,  see  Crossino  of 

Stref.is  and  Highways,  57. 

to  fence  in,  see  Fences,  24. 

Taxation  in  aid  of  railways  in,  see  Municipal 

and  Local  Aid,  413. 
—  of  land  grants  in,  see  Taxation,  118. 
Transportation  of  diseased    cattle    in,   see 

Carriage  of  Live  Stuck,  112. 


KANSAS  PACIFIC  R.  CO. 

1.  Subsidy  bonds  —  Settlements 
with  governiiieiit.— The  Act  of  Con- 
gress of  July  I,  1862.  granting  bonds  to  the 
Kansas  Pacific  railroad,  to  aid  in  building 
a  road  to  the  Pacific  coast,  provided  that 
after  the  road  was  completed  the  company 
should  pay  five  percent,  of  its  net  earnings 
to  the  government  on  said  bonds.  In  mak- 
ing a  settlement  with  the  road  to  ascertain 
the  net  earnings — held,  that  the  following 
items  should  be  excluded  :  Money  needed 
to  place  it  in  proper  repair,  but  not  actually 
expended  for  that  purpose  ;  the  expenses  of 
the  land  department;  the  interest  on  the 
funded  debt,  which  has  priority  over  the 
lien  of  the  United  States  ;  and  the  fifty  per 
cent,  retained  by  the  latter  from  the  amount 
due  for  services  rendered  to  it.  The  follow- 
ing are  to  be  allowed,  provided  they  were 
actually  paid  out  of  the  earnings  of  the 
road,  and  not  raised  by  bonds  or  stock  :  The 
equipment  account,  or  replacing  and  re- 
building rolling  stock,  machinery,  etc.;  the 
amounts  paid  for  depot  grounds,  and  the 


KANSAS   PACIFIC   R.  CO.,  2.— KNOWLEDGE. 


11/ 


expenses  of  same ;  and  the  construction  ac- 
count, or  improvements  and  additions  to 
the  tracic,  etc.  United  Slates  v.  h'aiisai 
}\ic.  K.  Co.,  99  U.  S.  455.— FoM.owF.n  in 
Alabama  G.  S.  R.  Co.  v.  United  States,  25 

Ct.  of  CI.  30- 

a.  Lion  of  tho  hoiMlH.— Such  bonds 
arc  not  a  lien  on  wliut  was  known  as 
the  Denver  Pacific  Railway  and  Tclegrai)h 
company,  nor  on  any  part  of  the  line  west 
of  the  one  hundredth  meridian  ;  nor  is  the 
company  liable  to  pay  to  the  government 
five  per  cent,  annually  on  said  divisions  of 
its  road,  as  is  required  by  said  act  as  to  the 
part  east  of  said  meridian.  United  States  v. 
Kansas  Pac.  R.  Co.,  99  U.  S.  455. -Fol- 
lowed IN  United  States  v.  Denver  Pac.  R. 
Co,.  99  U.  S.  460;  Union  Pac.  R.  Co. 
V.  United  States,  16  Ct,  of  CI.  353;  Uni'i'l 
States  V.  Central  Pac.  R.  Co.,  118  U.  . 
235.  —  United  States  v.  Denver  I'ai.  />. 
Co.,  99  U.  S.  460.  —  Following  United 
States  V.  Kansas  Pac.  R.  Co.,  99  U.  S.  455. 
—Followed  in  Union  Pac.  R.  Co.  v. 
United  States,  16  Ct.  of  CI.  353. 


mandamui  in,  see  Municipal  and  Local 
Aid,  447. 
Rule  «■  to  imputed  negligence  in,  see  Im- 

ri'TKl)   NK(jr  IC.KNCE,  H. 

Statute  nf  regula'ing  liability  for  injuries 
cauaed  by  fire,  see  Firks,  i\. 

10  servant  for  injuries  caused  by 

negligence  of  fellow-servants,  see  Fel- 
low servan  is,  18JI. 

Statutes  of  relative  to  distribution  of  damages 
for  causing  death,  see  Ukath  by  Wko.ng. 
Fi'L  Act,  01. 

Taxation  in  aid  of  railways  in,  see  Municipal 
AND  Local  Aid,  414. 


KILLING  STOCK. 
Actions  for,  generally,  see  Animals,  Injuries 

TO, 

Constitutionality  of  statutes  imposing  lia- 
bility for,  see  Statuies,  20-28. 

Excessive  damages  for,  see  New  Trial,  30. 

Prosecutions  for,  see  Criminal  Law,  i20. 

Variance  bntween  pleading  and  proof  in 
actions  for,  see  I'lkading,  130. 

When  limitation  begins  to  run  in  actions 
for,  see  LiMiTAi ION  OK  Actions,  28. 


I 
i 


KENTUCKY. 

Aid  to  railways  by  the  state,  see  State  Aid, 
18. 

Application  of  fellow-servant  rule  in,  to  ser- 
vants of  different  departments,  see  Fel- 
low-skrvani  s,  1 10. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 261. 

Constitutionality  of  statutes  of,  as  to  mu- 
nicipal aid  for  railways,  see  Municipal 
and  Local  Aid,  33. 

granting    remedy    for    causing 

death,  see  Death  hv  Wrongful  Act,  8. 

relative  to  condemnation  of  land, 

see  Eminent  Domain,  31. 

tax  laws  of,  see  Taxation,  28. 

Doctrine  in,  as  to  contributory  negligence, 
in  action  for  injury  by  act  of  fellow-ser- 
vant, see  Fellow-servants,  40(t. 

License  taxes  in,  see  Taxation,  395. 

Local  assessments  upon  steam  railways  in, 
for  repairs,  paving,  etc.,  see  Streets  and 
Highways,  340. 

Operation  of  statute  of,  giving  right  of  ac- 
tion for  causing  death,  see  Death  by 
Wrongful  Act,  20. 

PUintiffs  pleadings  need  not  negative  con- 
tributory negligence  in,   see  Contribu- 
tory Negligence,  58. 
Review  of  town  bonding  proceedings   by 


KNOWLEDGE. 

By  carrier,  of  threatened  danger  to  pas- 
senger, see  Carriage  of  Passengers, 
322. 

—  company,    of  defects,   allegation    of,   see 

Employes,  Injuries  to,  535-530. 

—  employe,    of  dangers    and   defects,    evi- 

dence   of,   see    Employes,    Injuries    to, 
574. 
rules  of  company,  see  Employes,  In- 
juries TO,  25. 

—  shipper,   of  notice  limiting  liability,   see 

Limitation  of  Liability,  13. 
Competency  of  witness  as  dependent  upon 

means  of,  see  Witnesses,  4. 
Credibility  of  witness  as  affected  by  means 

of,  see  Witnesses,  27. 
Gained  by  view  of  premises,  instructions  to 

jury  as  to  use  of.  see  Eminent  Domain, 

508-570,  583. 

—  from  scientific  works,  when  qualifies  ex- 

perts, see  Witnesses,  147. 
Judicial  notice  of  matters  of  common,  see 

Evidence,  108. 
Of  agent,   when   imputed  to   principal,  see 

Agency,  42,  43. 

—  carrier,  that  shipment  is  intended  for  im- 

mediate   sale,    see    Carriage    of    Live 
.Stock,  38. 


:'**:i&i 

;:-■&'#<! 


128 


LABUKiiKS-LADIES'   CAR. 


Of  company,  as  to  defect!  in  appliances,  ef- 
fect of,  sec  Emi'Lovks,  Injukiks  to,  1;I4- 

habitually  walking  on  track,  sec 

Li.i:.NSKi:s,  Injckiks  in,  1»,  til,  H'.l. 

—  defects,  by  defendant,  averment  of,  see 

Ukatm  iiY  Wkiinckiu,  A(  I,  144. 
— plaintiff,  averment  of,  in  answer,  sec 

EMi'Kiviis,  Inji  KiKs  lo,  /147. 
in  bridge,  effect  of,  see  Kkiihiks,  kic, 

»4. 
fence,  when  creates  duty  to  repair, 

see  Fkncks,  8H. 

—  directors,  when  imputable  to  corporation, 

see  UlkKCTOKs,  KIC,  m>. 

—  employe's  minority,  see  Empi.oyks,  Injiuiis 

TO,  458. 

—  facts,  by  principal,  as  a  prerequisite  of 

ratification  of  agent's  act,  see  Aukncv, 
114. 

—  hazard,  as  a  defense  to  action  for  injury  to 

employe,    see    Emti.oyks,    Injikiis     ki, 
554. 

—  incompetency  of  fellow-servant,  sec  Pel- 


I.OWSKKVANTS,    151-150,    151)-Hiil, 
452.455,402,510. 

Of  increased  danger,  remaining  in  service 
after,  see  I^miiovks,  Injukiks  td,  20H, 
200,  :t5'J,  002. 

—  license,  by  grantee  of  licensor,  sec  Lk  kn  -i , 

lO. 

—  rules  of  carrier,  by  passenger,  see  Cau- 

KiAiJK  tiK  1'assi  Ni;i  Ks,  OO-OH. 

—  witness,  showing  means  of  see  Whnkssi-s, 

5vH. 
to  qualify  him  to  give  opinion,  see  F.i  i  • 

VAiii)     Kaii,\vav>,     124;      \\n.MsM,>, 

too,  I07,  1  IH,  I20,  127. 
Or  notice  of  danger  or  defects,  assuinptio)i  of 

risk  after,   see   ICMri.DVKs,   Injl'kik>    ki, 

22;»  240. 
Testing  means  of.  on  cross-examination,  '-ci- 

WITNKSSKS,   OH. 

Waiver  of  defense  must  be  with,  see  Si  u 

SCKII'TIONS    lO  SlOCK,     I  70. 

What  requisite  to  qualify  as  an  expert,  see 
WiiNEssKs,  140-151. 


LABORERS. 

Assignment  of  claims  of,  see  Assion-mknt,  4, 
18. 

Contributory  negligence  of  deceased,  in  ac- 
tion for  causing  death,  see  Dkath  iiy 
Wrongi-ui,  Act,  2IO. 

Employed  by  contractors,  liability  of  com- 
pany to,  see  Construction  ok  Railways, 
88-08. 

Engagements  of  agents  for  board  of,  see 
Ar.KNCY,  01. 

Liability  of  railway  contractors  to,  see  Con- 
sTKiiCTioN  OK  Railways,  50. 

Liens  of,  who  entitled,  what  subject  to,  en- 
forcement, etc.,  see  LiE.Ns,  4;{-0;t. 

Priority  of  claims  of,  in  insolvency,  see  In- 
solvkncy,  7. 

Risks  assumed  by,  see  Employes,  Injuries 
TO,  285-202. 

Statutory  liability  of  stockholders  to,  see 
Stockholders,  44. 


LACHES. 

As  a  defense  to  action  on  subscription  to 

stock,  see  Subscriptions  to  Stock,  152. 
specific  performance,  sec  Spucikic 

Performance,  20. 
Denial  of  relief  in  equity  because  of,  see 

Equity,  7. 
Effect  of,  on  remedy  upon  lease,  see  Leases, 

ktc,  107. 


Effect  of,  on  right  of  stoppage  in  transitu, 
see  Carriackok  Merchandise,  510. 

to  set  aside  foreclosure  sale,  sie 

Moktoac.es,  204. 

to  validate  ultra  vires  act,  see  Uiika 

ViKKS.  O. 

In  respect  to  discovery  of  new  evidence,  see 

Ni.w  Trial,  02. 
Of  abutting  owner,  no  defense  to  injuncticn 

suit,  see  Ei.evatku  Railways.  07. 

—  complainant  in  action  to  cancel  railway 

aid  bonds,  effect  of,  see  Municipal  and 
Local  Aid,  404. 

—  landowner,  effect  of,  on  remedy  against 

company,   see    Eminent  Domain,   J)H7, 
1075. 

—  parties,  void  leases  as  affected  by,  see 

Leases,  etc.,  25. 

—  stockholder,  effect  of,  on  remedy  against 

corporation  or  ofificers,  see  Stockholdkks, 
118-120. 
When  bars  relief,  see  Cloud  on  Title,  ii. 

—  injunction  will  be  denied  because  of,  see 

Eminent  Domain,  1048,  1044. 

—  prevents  running  of  statute  of  limitations, 

see  Limitations  ok  Actions,  75. 


LADIES'  CAR. 

Exclusion  of  colored  persons  from,  see  Col- 
ored Peksons,  O. 

Forcible  expulsion  of  passenger  from,  see 
Carriage  of  Passengers,  208. 


LAND-GRANT   RAILROADS,  1-4. 


lao 


Removal  of  diiorderly  passenger  from,  see 

CAKHIAUK  UF  FASSKN(ieK!>,  U24. 


LAND-GRANT    RAILROADS. 

1.  Tliv  Ktutiitor.v  coiitnu't  with 
i;ov(*i'iiiiit!iiti — Till;  |)iovisi<)iis  of  various 
iicls  of  cdiij^ress  ilial  tin;  lan(i-j;rai)t  rail- 
roads "shall  be  and  remain  a  |)ul)lic  liii^h- 
way  for  the  use  of  the  >,'()veriinient,  free 
from  all  toll  or  other  charj,'e  for  transporta- 
tion of  any  property  or  troops  of  the  I'nited 
States."  means  that  the  fjovernmeni  may 
use  the  roa'ls,  with  all  fixtures  and  appur- 
tenances, but  not  that  it  may  compel  tlie 
roads  to  transport  jHoperty  and  troops 
without  compensation.  Luke  Superior  &* 
M.  A'.  Co.  V.  Uititiii Statts.  12  Ct.o/  U.  35, 

The  Pacific  Railroad  acts  contemplate  a 
(-MUtiruiouK  line  (jf  road  formed  by  local 
railroads  owned  by  different  companies; 
1111(1  tliey  constitute  a  system  of  enactments, 
///  pari  materia,  wliicli  are  to  be  construed 
together  as  one  act.  Demur  Pac.  A'.  Co.  v. 
Unitetl Slates, \2Ct.  0/ CI.  237. — Foi.LOWKU 
IN  Denver  Pac.  R.  Co.  7'.  United  States,  13 
Ct.  of  CI.  382. 

A  railroad  which  did  not  receive  or  jiar- 
ticipate  in  public  lands  granted  by  con^jress 
to  a  state  for  railroad  purposes  is  not  a 
"  lan(l-(,'rant  road  "  within  the  meaning  of 
the  act  of  July  12,  1876,  19  St.  at  L.  82,  §  13. 
C/iicai;o,  M.  <S-  .SV.  P.  R.  Co.  v.  United 
Stdti'i.  14  Ct.  of  CI.  125. 

The  land-grant  railroad  statutes  are  in 
llie  nature  of  grants,  and  the  roads  which 
so  received'  public  lands  are  to  be  regarded 
as  the  beneficiaries  of  a  grant.  Chica^^o  &* 
.y.  ir.  A'.  Co.  V.  l/ttifett  States,  15  Ct.  of  CI. 

The  Pacific  Railroad  Acts,  1862,  1864,  12 
St.  at  L  493,  13  Id.  356.  accepted  by  the 
companies  therein  named,  constitute  a  con- 
tract which  cannot  be  impaired  by  the 
United  States  without  compensation  estab- 
lished by  due  process  of  law.  Central  Pac. 
A'.  Co.  V.  United  States,  21  Ct.ofCl.  180. 

2.  ObligatiuiLS  to  the  Koveriiiiieiit, 
generally.— The  rights  of  the  government, 
and  the  obligations  of  the  Pacific  railroads 
concerning  the  repayment  of  moneys  ex- 
pended by  the  government  in  the  payment 
of  interest  on  the  subsidy  bonds  loaned  the 
roads,  must  be  determined,  not  by  general 
principles  of  law  or  equity,  but  by  the  terms 
of  the  statutes  which  authorized  the  loan. 

6  D.  R.  D.— 9. 


Union  Pac.  K.  Co,  v.  United  States,  16  Ct. 
of  CI,  353. 

U.  Wlieii  road  iIim'iikmI  "com- 
|d«tcMl."— The  Act  of  Congress  of  July  1, 
1862,  t(j  aid  ill  the  construction  ui  a  rail- 
road to  the  Pacific  ocean,  after  granting 
certain  lands  and  a  loan  of  government 
bonds  to  be  received  by  the  Union  Pacific 
and  other  companies  fron)  time  to  time  as 
.successive  sections  of  road  should  be  com- 
pleted, required  the  companies  to  perforin 
all  government  iraiispiJMatioii  of  mails, 
troops,  etc,  and  to  credit  the  compensation 
therefor  on  the  government  loan  ;  and  then 
added  "  that  after  the  road  is  completed, 
until  said  bonds  and  interest  are  paid,  at 
least  five  per  cent,  of  the  net  earnings  01 
said  road  shall  also  be  annually  applied  to 
the  payment  thereof."  Held,  that  the  road 
was  completed  for  the  purpose  of  this  pay- 
ment to  begin  wlien  reported  by  the  com- 
pany to  be  tompleted,  and  accepted  by  the 
president  of  the  United  States  for  the  pur- 
pose of  issuing  the  government  bonds, 
though  the  acceptance;  was  provisional, 
and  security  was  required  that  all  deficien- 
cies in  construction  should  be  supplied. 
Union  Pac.  K.  Co.  v.  United  States,  99  U.  S, 
402. — Followed  in  Unittid  States  v.  Cen- 
tral Pac.  R.  Co.,  99  U.  S.  449. 

The  company  having  duly  presented  its 
road  as  completed,  and  having  obtained  the 
subsidy,  and  agreed  tiiat  securi.y  should  be 
retained  by  the  government  for  the  ultimate 
completion  of  defective  parts,  was  held  to 
be  estopped  from  denying  that  the  road 
was  completed.  Union  Pac.  A'.  Co.  v. 
United  States,  99  U.  S.  402. 

4.  Carriage  of  IVolfjht.— Aland-grant 
railroad  in  a  suit  against  the  governmci-.t 
f(jr  freight  earnings  can  recover  for  its  ser- 
vices as  a  carrier,  but  not  for  the  use  of  its 
road.  Its  ordinary  tariff  rates  embrace 
compensation  for  both.  Therefore,  if  they 
be  taken  as  a  basis  of  computation,  there 
should  be  such  deduction  made  as  would 
reduce  the  rate  to  what  another  carrier 
would  charge  for  carrying  the  freight  on 
the  government's  railroad  free  of  rent. 
Atchison,  T.  &^  S.  F.R.Co.v.  United  States, 
12  Ct.  of  CI.  295. 

The  act  of  March  3,  1875,  18  St.  at  L.  453, 
took  away  from  the  quartermaster-general 
the  power  to  agree  upon  rates  for  transpor- 
tation of  government  freight  on  land-grant 
railroads,  and  left  the  court  of  claims  to 
determine  the  principles  upon  which  such 


130 


LAND-GRANT   RAILROADS,  5. 


%' 


demands  should  be  determined.  The  pro- 
hibition of  the  statute  extends  to  lessees 
operating  a  land-grant  road.  Northern  Pac. 
R.  Co.  V.  Uuili'd  States,  1 5  Ct.  of  CI.  428. 

A  contract  nipde  since  tiie  statute  by  a 
quartermaster  with  lessees  operating  a  land- 
grant  road,  for  the  transportation  of  gov- 
ernment freight  over  it,  is  absolutely  void. 
X or t hern  Pac.  R.  Co.  v.  United  States,  1 5  Ct, 
of  CI.  428. 

Where  the  court  of  claims  is  satisfied  that 
a  contract  fixing  the  rates  for  the  trans- 
portation of  governnient  freight  was  made, 
and  has  been  carried  out  in  good  faith,  it 
will  not  go  into  the  examination  of  vo- 
luminous testimony  to  ascertain  whether,  in 
trifling  particulars,  the  rates  charged  ex- 
ceeded the  legal  limitation  attached  to  the 
grant  of  the  road.  Northern  Pac.  R.  Co.  v. 
Unit'-d  States,  1 5  Ct.  of  CI.  428. 

The  invalidity  of  part  of  a  contract,  even 
where  it  exists  by  virtue  of  a  statute,  does 
not  destroy  the  whole,  if  the  remainder, 
being  legal  and  distinct  is  capable  of  sepa- 
ration from  the  illegal  provision.  So  where 
a  quartermaster  contracts  with  a  land-grant 
railroad  for  the  transportation  of  govern- 
ment supi)lies,  and  agrees  upon  the  rate 
after  the  statute  has  taken  away  his  power 
to  agree  upon  the  rate,  the  contract  is  in- 
valid only  as  to  the  rate  agreed  upon. 
Northern  Pac.  R.  Co.  v.  United  States,  15 
Ct.  of  CI.  428. 

5.  Carriage  of  the  mails.* — A  "  land- 
grant  road  "  is  under  a  perpetual  contract 
nia(  e  by  the  Land-grant  Act  of  May  17, 1856 
(11  St.  at  L.  §  5,  p.  15),  carry  the  mails  at 
such  rates  as  congress  li.iy  by  law  direct  or 
the  postmaster-general  determine.  Jackson- 
ville, P.  <S-  Af.  R.  Co.  V.  United  States,  21  Ct. 
of  CI.  III. 

A  land-grant  road  carrying  the  mails 
without  an  express  contract  with  the  post- 
master-general was  subject  to  the  reduc- 
tions of  compensation  ordered  by  the  acts 
of  July  12.  1S76,  and  June  17,  1878.  Jack- 
sonville, P.  <?-  M.  R.  Co.  V.  United  States, 
21  Ct.  of  CI.  155. 

Subsidized  roads  are  bound  to  transport 
them  at  fair  and  reasonable  rates  not  in  ex- 
cess of  those  charged  to  private  parties  for 
the  same  kind  of  service ;  other  railroads 
are  not  bound  to  perform  the  service,  but  if 
they  do,  under  an  implied  contract,  the  rate 
of  compensation  must  be  ascertained  from 

*  See  title  Carriage  of  Maii  s. 


the  statutes,  the  regulations,  orders,  and 
practice  of  the  department,  and  the  attend- 
ing circumstances.  Jacksonville,  P.  6^  AI, 
R.  Co.  V.  United  States,  21  Ct.  of  CI.  155. 

If  land  granted  by  congress  in  trust  to 
the  state  of  Wisconsin,  to  be  applied  to  the 
construction  of  a  railroad,  be  subsequently 
diverted  to  another  purpose  with  the  con- 
sent of  congress,  viz.,  to  the  payment  of 
debts  contracted  by  individuals  in  a  futile 
attempt  to  build  the  road,  so  that  the  com- 
pany wh.cii  in  fact  constructs  the  road 
never  dcriv  ;s  a  benefit  from  the  land,  they 
will  not  be  bound  by  a  condition  in  the 
original  statutory  grant  that  the  mail  shall 
be  carried  at  such  rates  as  congress  or  the 
post-office  department  may  prescribe.  Chi- 
cago, M.  &^  St.  P.  R.  Co.  V.  United  States, 

14  Ct.  of  CI.  125.— Followed  in  Union 
Pac.  R.  Co.  V.  United  States,  16  Ct.  of  CI. 
569. 

By  the  terms  of  the  grant  (acts  May  15, 
June  3,  1856,  II  St.  at  L.  p.  9,  §  5,  p.  20,  §  5) 
the  mail  is  to  be  transported  over  the  roads 
"  at  such  price  as  congress  may  by  law 
direct,"  and  "  until  such  price  is  fixed  by 
law  the  postmaster-general  shall  have  the 
power  to  determine  the  same."  An  agree- 
ment with  the  postmaster-general,  fixing 
a  rate  of  compensation  for  a  specific  period, 
must  be  held  to  be  subject  to  the  power  of 
congress  to  interpose  and  prescribe  a  dif- 
ferent rate.  Chicago  Sf  N.  IV.  R.  Co.  v. 
United  States,  i^Ct.  of  CI.  232. — Followed 
IN  Union  Pac.  R.  Co.  v.  United  States,  16 
Ct.  of  CI.  569. 

The  Revised  Post-office  Act  of  1872  (17 
St.  at  L.  p.  283,  §§  212,  256,  265)*,  which  au- 
thorizes the  postmaster-general  to  make 
mail  transportation  contracts  generally  for 
periods  of  four  years,  does  not  operate  to 
relieve  the  land-grant  roads  from  the  terms 
and  conditions  of  their  antecedent  grants. 
But  other  mail  transportation  services  are 
not  subject  to  the  terms  of  the  grant,  and 
may  be  the  subject  of  a  contract  with  the 
postmaster-general— ^j:.^;-.,  furnishing  a  car 
suitably  fitted  and  warmed ;  carrying  the 
mails  from  the  train  to  the  post-office,  etc. 
Chicago  &*  N.  W.  R.  Co.  v.  United  States, 

15  Ct.  of  CI.  232. 

Where  the  postmaster-general  unites  in 
one  contract  the  statutory  obligation  to 
carry  the  mail,  and  the  voluntary  obligation 
to  furnish  a  car  suitably  fitted,  warmed, 
etc.,  and  congress  order  a  reduction  of  the 
rate,  the  road  may  throw  up  the  contract. 


LAND-GRANT   RAILROADS,  6-9. 


131 


But  if  the  road  continues  to  perform  and 
accepts  the  reduced  compensation,  it  must 
be  deemed  to  have  acceded  to  the  reduc- 
tion. Chicago  «S-  A'.  W.  A.  Co.  v.  United 
States,  1 5  Ct.  of  CI.  2^2. 

Wiien  congress,  by  statute,  order  a  re- 
duction of  the  compensation  of  existing 
railway  mail  transportation  contracts,  the 
contractors  must  elect  whether  they  will 
perform  at  the  reduced  compensation,  or 
treat  the  service  as  discontinued.  A  pro- 
test to  the  postmaster-general  against  the 
reduction  effects  nothing  if  they  continue 
to  perform.  Chicago  <S^  A^.  W.  K,  Co.  v. 
Uii/tcii  States,  1 5  Ct.  of  CI.  232. 

lu  the  case  of  railway  mail  transportation 
contracts,  congress  must  be  deemed  the 
principal,  the  postmaster-general  theiragent, 
and  a  statute  reducing  compensation  a 
notice  to  the  contractors  limiting  the  au- 
thority of  the  agent.  Chicago  &•  N.  IV.  K. 
Co.  V.  United  States,  1 5  Ct.  of  CI.  232. 

<»  Carriage  of  imssengerH.  —  The 
government  is  not  entitled  under  12  St.  at 
L.  p.  489,  §  6,  to  through  rates  for  local 
passengers,  i.e.,  to  rates  which  the  railroad 
receives  in  its  division  with  other  com- 
panies for  transportation  over  its  own  and 
other  roads.  Union  Pac.  K.  Co.  v.  United 
States,  20  Ct.  of  CI.  70. 

The  same  provision  governs  the  fare  over 
the  Omaha  bridge.  The  act  Feb.  24,  1871 
(16  St.  at  L.  p.  430),  under  which  the  bridge 
was  built,  does  not  supersede  or  modify  it. 
Union  Pac.  li,  Co.  v.  United  States,  20  Ct.  of 
a.  70. 

7.  Carriag:e  of  troops  kimI  army 
siipulics.— The  Act  of  Congress  of  May  5, 
1864,  making  a  land  grant  to  the  state  of 
Minnesota  to  aid  in  the  construction  of 
plaintiffs  road,  provides  that  "said  rail- 
road shall  be  and  remain  a  public  highway 
for  the  use  of  the  government  of  the  United 
Stales,  free  from  all  toll  or  other  charge  for 
the  transportation  of  any  operty  or  troops 
of  the  United  States."  Held,  that  this  pro- 
vision only  secured  to  the  government  the 
right  to  the  use  of  the  road  as  a  highway, 
free  of  toll  or  other  charge,  when  it  might 
desire  to  use  it  in  its  own  transportation  ; 
but  it  did  not  secure  to  the  government  tlie 
right  to  free  transportation  of  government 
troops  or  property  in  the  cars,  and  at  the 
expense  of  the  company.  The  free  trans- 
portation to  the  government  only  extends 
to  the  use  of  the  track,  and  not  to  the  use 
of  the  company's  cars  and  other  agencies. 


Lake  Superior  6r*  M.  R.  Co.  v.  Untied  States, 
93  U.  S.  442 ;  affirmittg  \%  Ct.  of  CI,  2,1. 

A  railroad  of  Iowa  was  authorized  by  Act 
of  Congress  July  2,  1864,  to  extend  its  road 
through  Nebraska,  and  an  unconditional 
grant  of  lands  was  made  to  it  April  10, 1869. 
Congress  authorized  it  to  assign  and  convey 
to  a  railroad  company,  to  be  organized  un- 
der the  laws  of  Nebraska,  all  the  rights, 
powers,  and  privileges  granted  by  the  act  of 
1S64,  and  subject  to  all  conditions  and  re- 
quirements therein  contained.  Held,  that 
the  unconditional  grant  of  lands  by  the 
Iowa  corporation  to  the  claimant  corpora- 
tion in  Nebraska  does  not  bring  the  Ne- 
braska company  within  the  terms  of  the  act 
of  March  3,  1875,  which  prohibits  the  pay- 
ment to  any  railroad  company  for  the  trans- 
portation of  any  property  or  troops  of  the 
United  States  over  sucii  road,  which  in 
whole  or  in  part  was  constructed  by  the  aid 
of  a  grant  of  public  land  on  the  condition 
that  the  same  should  be  a  public  highway 
for  the  use  of  the  government,  free  from 
toll  or  other  charge.  Burlington  &*  M.  R. 
R.  Co.v.  United  States,  18  Ct.  of  CI.  618. 

8.  Accounting^  with  tlie  govern- 
ment, generally.  —  A  statement  of  the 
indebtedness  of  a  railroad  by  the  commis- 
sioner of  railroads  and  the  accounting  offi- 
cers of  the  treasury  is  neither  an  account 
stated  nor  an  award.  The  officers  are  not 
arbitrators,  nor  have  they  power  to  make 
admissions  against  the  government.  Cen- 
tral Pac.  R.  Co.  V,  United  States,  24  Ct.  of 
CI.  145. 

0.  Valuation  of  the  governmental 
right  to  use  the  roads.— No  theoreti- 
cal formula  can  be  adopted  in  th;:  land- 
grant  railroad  cases  as  a  rule  for  the  meas- 
ure of  damages  which  disregards  the  legal 
rights  of  the  parties,  and  seeks  to  make 
them,  on  equitable  considerationsj,  partici- 
pators in  each  other's  gains  and  losses. 
The  practical  question  must  always  be,  what 
is  the  market  value  of  the  government's 
right  to  the  free  use  of  the  road  ?  Atchison, 
T.  <S-  S.  F.  R.  Co.  V.  United  States,  12  Ct.  of 
CI.  295. 

A  custom  prior  to  tb-  rts  1874,  1875  (18 
St.  at  L.  p.  74 ;  Id.  p.  453),  of  allowing  land- 
grant  railroads  66  per  cent,  of  their  ordinary 
tariff  rates  does  not  furnish  a  rule  for  the 
measure  of  damages  as  to  services  subse- 
.  quent  to  those  statutes.  Nor  can  a  con- 
jectural deduction  or  generalization,  made 
by  experts,  based  upon  the  operations  of 


r^.'- 


"d"^  ^M  *=^?^ 


133 


LAND-GRANT   RAILROADS,  10-12. 


otlier  railroads,  be  admitted  to  show  the 
worth  of  the  government's  right  to  use  the 
chiimants*  road.  Atchison,  T.  &*  S.  F.  R. 
Co.  V.  United  States,  15  Ct.  of  CI.  126. 

The  wortii  of  the  government's  riglit  to 
use  a  land-grant  railroad  should  not  be  de- 
termined from  leases  of  brancii  roads  rented 
and  operated  by  tiie  claimants.  Atchison, 
T.  Or-  S.  J''.  A\  Co.  V.  United  States,  1 5  Ct. 
of  CI.  126. 

The  advantages  which  the  government 
may  reap  from  the  claimants'  transporta- 
tion sei vices  in  not  being  obliged  to  pro- 
cure rolling  stock  and  servants,  and  there- 
with operate  a  land-grant  railroad,  do  not 
form  a  basis  for  computing  the  measure  of 
damage  in  such  a  case.  Atchison,  T.  &»  S. 
J'.  K.  Co.  V.  United  States,  15  Ct.  of  CI.  126. 

10.  Coiiipeiisutioii  for  services  ren- 
dered to  governnieut. — Where  the  war 
department  by  a  general  order  settled  what 
was  a  fair  deduction  for  the  use  of  all  land- 
grant  railroads,  it  did  not  bind  the  roads ; 
but  where  one  voluntarily  rendered  service 
accordingly,  acquiesced  in  that  rate  of  de- 
duction, and  seeks  only  that  compensation, 
the  acts  of  the  parties  may  be  taken  as  the 
best  evidence  of  what  was  a  fair  deduction 
for  the  use  of  that  road.  Atchison,  T.  <S»  5. 
F.  A\  Co.  V.  United  States,  12  Ct.  of  CI.  295. 

The  method  for  computing  the  damages 
to  be  awarded  a  land-grant  railroad  for 
government  service  should  be  based  on  the 
actual  elements  of  cost  which  went  into  the 
special  service,  and  the  actual  charges  made 
for  similar  services  rendered  to  the  public. 
Atchison,  T.  &>  S.  F.  H.  Co.  v.  United 
States,  15  Ct.  of  CI.  126. 

In  computing  the  compensation  the  gov- 
ernment must  be  regarded  as  the  owner  of 
the  road,  the  company  as  the  owner  of  its 
equipment,  both  species  of  property  as  on 
an  equality,  and  entitled  to  share  propor- 
tionately in  the  net  earnings.  The  method 
for  computing  and  ascertaining  damages  in 
such  a  case,  stated  and  explained.  Atchison, 
T.  <S-  5.  F.  R.  Co.  V.  United  States,  15  Ct.  of 
CI.  126. 

Wliere  the  nominal  cost  of  road  includes 
a  discount  in  the  sale  of  stock  and  securities, 
it  is  for  the  claimants  to  show  the  amount 
of  the  discount.  If  they  do  not,  the  nominal 
will  be  treated  as  the  actual  cost  of  the  road. 
Atchison,  T.  6-  5.  F.  R.  Co.  v.  United  States, 
15  Ct.  of  CI.  \2f>. 

By  20  U.  S.  St.  390  congress  practically 
agreed  that,  irrespective  of  the  particular 


relations  between  the  cost  of  a  road  and 
the  cost  of  its  equipment,  fifty  per  cent,  of 
its  gross  earnings  is  a  fair  compensation  for 
the  actual  cost  of  transportation,  and  the 
company's  proportional  share  in  the  profits. 
Atchison,  T.  &>  S.  F.  R.  Co.  v.  United 
States,  15  Ct.  of  CI.  126. 

11.  "Operating expenses,"  "earn- 
ings," "net  earnings." — The  earnings 
of  the  road  include  all  the  receipts  arising 
/lom  the  company's  operations  as  a  rail- 
road company,  but  not  its  receipts  irom  tiie 
public  lands  granted,  nor  fictitious  receipts 
for  the  transportation  of  its  own  property. 
"Net  earnings,"  within  the  meaning  of  the 
i'aw,  are  ascertained  by  deducting  from 
gross  earnings  all  ordinary  expenses  of  or- 
ganization and  of  operating  the  road,  and 
expenditures  bona  fide  made  in  improve- 
ments, and  paid  out  of  earnings,  and  not  by 
the  issue  of  bonds  or  stock;  but  not  de- 
ducting interest  paid  on  any  of  the  bonded 
debt  of  the  company.  Union  Pac.  R.  Co. 
V.  United  States,  99  U.  S.  402.— Followed 
IN  Union  Pac.  R.  Co.  v.  United  States,  20 
Ct.  of  CI.  70;  Barry  v.  Missouri.  K.  &  T.  R. 
Co.,  29  Am.  &  Eng.  R.  Cas.  384,  27  Fed. 
Rep.  I.  Quoted  in  Nickals  7>.  New  York, 
L.  E.  &  W.  R.  Co.,  13  Am.  &  Eng.  R.  Cas. 
139,  21  Blatchf.  (U.  S.)  177,  15  Fed.  Rep. 
S75;  Dardanelle  &  R.  R.  Co.  v.  Shinn,  40 
Am.  &  Eng.  R.  Cas.  570,  52  Ark.  93. 

The  words  "  necessary  expenses  of  operat- 
ing" in  the  Thurman  Act,  1878  (20  St.  at  L. 
p.  56,  §  i),  extend  to  the  expenses  of  operating 
the  road  in  accordance  with  the  demands  of 
the  business  coming  to  it,  but  limit  the  ex- 
penses to  such  as  are  conducive  to  that 
end,  and  exclude  those  that  are  not.  Union 
Pac.  R.  Co.  V.  United  States,  20  Ct.  of  CI.  70. 
—Following  Union  Pac.  R.  Co.  v.  United 
States,  99  U.  S.  402. 

12.  Right  to  witlihold  moneys, 
and  apply  tlieni  to  subsidy  bonds. 
— That  part  of  the  Union  Pacific  railroad 
known  as  the  Denver  Pacific  Railroad  and 
Telegraph  company  is  bound  to  perform 
the  government  service  stipulated  by  the 
Pacific  railroad  acts  at  the  rates  therein 
fixed,  and  is  subject  to  their  provisions  so 
far  as  applicable,  yet  no  part  of  the  com- 
pensation due  it  for  such  services  can  be 
retained  by  the  United  States,  and  applied 
to  payment  of  the  government  subsidy 
bonds  granted  the  Kansas  Pacific  division 
by  the  act  of  July  i,  1862.  Said  act  does 
not  apply  to  said  Denver  Pacific  division. 


LAND-GRANT   RAILROADS,  13.— LAND   GRANTS. 


133 


Uiit/fd  States  v.  Denver  Pac.  A\  Co.,  99  I/.  5. 
460.— Followed  in  United  States  v.  Cen- 
tral I'ac.  R.  Co.,  118  U.S.  2-^$.— Union  Pac. 
R.  Co.  V.  United  States,  16  Ct.  of  CI.  353. 

The  Act  of  Congress  of  May  7,  1878,  pro- 
vidinji  for  a  retention  by  tlie  United  States 
of  moneys  due  railroads  tliat  had  received 
governmental  aid,  for  services  rendered  the 
government,  does  not  include  branches  of 
such  roads  not  receiving  aid.  United  States 
V.  Central  Pac.  R.  Co.,  24  Am.  &*  Eng.  R. 
Cas.  I'sl,  118  U.  S.  23s,  6  Sup.  Ct.  Rep.  1038. 
—  Foij.owiNr.  United  States  V.  Kansas  Pac. 
R.  Co.,  99  Li.  S.  455 ;  United  States  v.  Den- 
ver Pac.  R.  Co.,  99  U.  S.  460.— Quoted  in 
Re  I'acific  R.  Commission,  12  Sawy.  (U.  S.) 
y^c).— Central  Pac.  R.  Co.  v.  United  States, 
21  Ct.  of  CI.  180.  Union  Pac.  R.  Co.  v. 
United  States,  16  Ct.of  CI.  353.— Follow- 
ing United  States  v.  Kansas  Pac.  R.  Co., 
99  U.  S.  455;  United  States  v.  Denver  Pac. 
R.  Co.,  99  U.  S.  460. 

Where  a  road  was  not  aided  by  the  gov- 
ernment, the  government  is  not  authorized 
by  the  Thurman  Act  (20  St.  at  L.  56)  to 
withhold  compensation.  The  rule  for  the 
construction  of  the  act  stated,  and  the  de- 
cisions relating  to  the  Pacific  railroad  sys- 
tem reviewed.  Central  Pac.  R.  Co.  v. 
United  States,  21  Ct.  of  CI.  180. 

Where  a  railway  company  has  constantly 
recurring  claims  for  services  against  the 
government,  and  the  government  has  claims 
against  the  company  for  interest  advanced 
to  its  use,  an  act  of  congress  (act  March  3, 
1871,  16  St.  at  L.  p.  525,  §  9)  which  provides 
tiiat  "  the  secretary  of  the  treasury  is 
hereby  directed  to  pay  over  in  money  to  the 
said  company"  the  compensation  agreed 
upon  for  its  services  does  not  atlect  or 
change  'c!ie  rights  or  ag^ements  of  the  par- 
tics,  merely  directs  the  secretary  not  to 
assert  le  government's  right  of  set-off. 
Union  }..:  R.  Co.  v.  United  States,  10  C/. 
0/  CI.  548. 

The  right  of  the  government  under  the 
Pacific  Railroad  Acts  1862,  1864,  12  St.  at  L. 
489;  13  /(/.  356,  to  withhold  freight  moneys 
earned  in  carrying  the  mails,  etc.,  and  apply 
them  to  the  payment  of  the  bonds  loaned 
the  companies  to  aid  them  in  the  construc- 
tion of  the  roads,  is  not  a  condition  at- 
tached to  the  franchise  nor  an  obligation 
springing  out  of  the  land  grants  conferred 
upon  the  companies,  but  simply  a  specific 
mode  of  payment  upon  the  mortgage  cre- 
ated by  those  statutes.     Denver  Pac.  R.  Co. 


v.  United  States,  12  Ct.  of  CI.  237.— Fol- 
lowed IN  Denver  Pac.  R.  Co.  v.  United 
States,  13  Ct.  of  CI.  382. 

The  right  of  the  government  to  withhold 
moneys  due  to  the  Pacific  railroads  for  ser- 
vices rendered,  and  apply  them  upon  the 
subsidy  bonds  loaned  the  roads,  not  yet 
due,  rests,  not  upon  any  general  principle  of 
law,  but  upon  the  statute.  Union  Pac.  R, 
Co.  V.  United  States,  16  Ct.  of  CI.  353. 

13.  Huit8  for  iiioucy  iiiipruperly 
withheld.— The  right  of  one  of  the 
Pacific  railroads  to  bring  suit  for  money 
improperly  withheld  by  the  secretary  of  tlie 
treasury  as  net  earnings,  under  the  Thur- 
man act,  requiring  one  fourth  of  the  net 
earnings  of  the  road  to  be  paid  into  the 
treasury  as  a  sinking  fund  (20  St.  at  L.  56), 
accrues  at  the  time  the  money  is  so  applied. 
Central  Pac.  R.  Co.  v.  United  States,  24  Ct. 
of  CI.  145. 

And  where  the  action  of  the  secretary  of 
the  treasury  was  taken  on  December  31, 
1881,  for  the  year  then  ending,  and  the  suit 
was  brought  on  October  31,  1887,  the  de- 
mand for  earnings  between  July  i  and  Octo- 
ber 31,  1 88 1,  is  not  barred  by  the  statute  of 
limitations.  Central  Pac.  R.  Co.  v.  United 
States,  24  Ct.  of  CI.  145. 


-''  'iC 


LAND  GRANTS. 

Interpretation  of  agreements  to  obtain,  see 

Contracts,  104. 
Subrogation  of  party  paying  claims  of,  see 

Subrogation,  5. 
When   exempt  from   taxes,   see  Taxation, 

104. 

I.  OENESAL  PRINCIPLES 134 

n.  FEDEBAL  0BANT8  TO  STATES 141 

1.  In  General 141 

2.  Alabama 142 

3.  California.  Florida.  Illinois.  144 

4.  lo^va   144 

5.  Kansas 148 

6.  Louisiana.     Michigan 1 50 

7.  Minnesota 153 

8.  Missouri 155 

9.  Wisconsin 1 57 

in.  FEDEBAL  OBANTS  TO  BAILROADS..  158 

1 .  In  General 1 58 

2.  To  tlie  Pacific  Railroads 164 

a.  Central  Pacific 164 

b.  Northern  Pacific 167 

c.  Southern  Pacific 171 

d.  Union  Pacific 173 

3.  Toother  Railroads 175 


I 


134 


LAND   GRANTS,  1-3. 


IT.  STATE  OBAmS  TO  BAIIBOASB 1 80 

Y.  OSANTS  OF  8WA1IP  LAHDS 1^7 

VI.  CANAOIAH  OBANTS 194 

I.  OENEBAL  PBINCIPLES. 

1.  Defluitioii  —  Notice.  —  The  word 
"grant"  is  not  a  technical  word  like  the 
word  "enfeoff,"  and  although,  if  used 
broadly,  without  limitation  or  restriction,  it 
would  carry  an  estate  or  interest  in  the 
thing  granted,  still  it  may  be  used  in  a 
more  restricted  sense,  and  be  so  limited 
tiiat  the  grantee  will  take  but  a  mere  naked 
trust  or  power  to  dispose  of  the  thing 
granted.  Rice  v.  Minnesota  &*  N.  W.  K. 
Co.,  I  Black  {U.  S.)  358. 

Grants  made  by  a  legislature  are  not  war- 
ranties; and  the  rule  universally  applied  in 
determining  their  effect  is,  that  if  the  thing 
granted  is  not  in  the  grantor  at  the  time  of 
the  grant,  no  estate  passes  to  the  grantee. 
This  is  the  rule  at  common  law,  and  the 
same  rule  applies  in  construing  grants 
made  by  congress  for  purposes  of  internal 
improvements.     Rice  v.  Minnesota  &^  N. 

IV.  R.  Co.,  I  Black  (U.  S)  358. 

All  the  world  must  take  notice  of  statu- 
tory grants  of  land  clearly  defined  on  the 
face  of  the  statute,  aiid  other  public  rec- 
ords indicated  by  the  statute.  Southern 
Pac.  R.  Co.v.  Dull,  lo  Saivy.  {U.  S.)  506,  22 
Fed.  Rep.  4S9.— APPROVING  Ryan  v.  Cen- 
tral Pac.  R.  Co.,  5  Sawy.  260,  99  U.  S.  382. 

Distinction  between  grants  of  land  to  aid 
in  construction  of  railroads  and  grants  of 
right  of  way,  commented  upon.     Hamilton 

V.  Spokane  &'  P.  R.  Co.,  51  Am.  &>  Enj,r.  R. 
Cas.  352,  2  Ilia /to  898,  28  Pac.  Rep.  408.— 
Referring  to  Denver  &  R.  G.  R.  Co.  v. 
Ailing.  00  U.  S.  475 ;  Doran  7/.  Central  Pac. 
R.  Co.,  ."4.  v'al.  259;  Western  Pac.  R.  Co.  z/. 
Tevis  41  Cal.  492  ;  United  States  v.  Garret- 
son,  42  Fed.  Rep.  22 ;  Turner  v.  American 
B.  M.  Union,  5  McLean  (U.  S.)  344;  North- 
ern Pac.  R.  Co.  V.  Meadows,  46  Fed.  Rep. 
254;  Bybec  v.  Oregon  &  C.  R.  Co.,  26  Fed. 
Rep.  589. 

2.  Powers  of  the  legiHlatiirc — Sec- 
ond grant. — When  the  right  to  property 
is  vested  by  grant  for  a  particular  purpose, 
by  legislative  authority  or  otherwise,  the 
legislature  cannot  vest  it  for  another.  If 
the  legislature  declares  the  purpose  to 
which  the  subject-matter  of  a  grant  shall 
be  applied,  its  power  over  it  is  exhausted, 
and  it  cannot  by  legislative  srrant  be  appro- 
priated for  another  and  different  purpose, 


except  in  case  of  a  grant  with  conditioivs 
subsequent,  where  there  is  a  clear  forfeit- 
ure by  the  grantee  of  the  conditions  an- 
nexed to  the  grant.  Koenig  v.  Omaha  &^ 
N.  IV.  R.  Co ,  3  Ned.  373- 

Where  congress  makes  a  grant  of  lands 
to  a  company  existing  under  a  state  char- 
ter, but  which  will  not  enable  it  to  obtain 
the  benefit  of  the  grant,  still  the  grant 
takes  the  lands  out  of  the  public  lands  so 
that  they  will  not  pass  under  a  subsequent 
grant  to  another  company.  United  States 
v.  Northern  Pac.  R.  Co.,  152  U.  S.  284.  14 
Sup.  Ct.  Rep.  598. 

3.  How  construed,  generally.*— It 
is  always  to  be  borne  in  mind  in  con- 
struing a  congressional  grant  that  the  act 
by  which  it  is  made  is  a  law  as  well  as  a 
conveyance,  and  that  such  effect  must  be 
given  to  it  as  will  carry  out  the  intent  of 
congress;  and  this  intent  should  not  be 
defeated  by  applying  to  the  grant  the 
common  law  rule  making  grants  appli- 
cable only  to  transfers  between  private  par- 
ties. Missouri,  A'.  &*  T.  R.  Co.  v.  Kansas 
Pac.  R.  Co.,  97  U.  S.  491.— Followed  in 
Nash  V.  Sullivan,  10  Am.  &  Eng.  R.  Cas. 
552,  29  Minn.  206;  St.  Paul  &  P.  R.  Co.  v. 
Northern  Pac.  R.  Co.,  139  U.  S.  i.  Quoted 
IN  Northern  Pac.  R.  Co.  v.  St.  Paul,  M. 
&  M.  R.  Co.,  25  Am.  &  Eng.  R.  Cas.  99,  26 
Fed.  Rep.  551 ;  Northern  Pac.  R.  Co.  v. 
Majors,  5  Mont,  ill.— Jackson,  L.  &*  S.  R. 
Co.  V.  Davison,  65  Mich.  416,  14  West.  Rep. 
65,  32  N.  IV.  Rep.  726.— Quoting  Farns- 
worth  V.  Minnesota  &  P.  R.  Co.,  92  U.  S. 
65. 

To  ascertain  that  intent  courts  will  look 
to  the  condition  of  the  country  at  the  time 
of  making  the  grants,  as  well  as  the  pur- 
pose of  the  grants  as  expressed  on  their 
face.  Winona  Ss^  St.  P.  R.  Co.  v.  Barney, 
26  Am.  &>  Eng.  R.  Cas.  513,  1 13  £/.  5'.  618, 
S  Sup.  Ct.  Rip.  606. 

The  means  reasonably  necessary  for  the 
enjoyment  of  a  granted  property  or  rights, 
the  exercise  of  the  granted  power,  and  tlic 
accomplishment  of  the  object  of  the  grant, 
are  given  by  implication.  Burke  v.  Con- 
cord R.  Co.,  8  Am.  6-  Eng.  R.  Cas.  552,  6i 
N.  H.  160. 

In  a  conveyance  by  the  sovereign,  of 
property  which  is  usually  the  subject  of 
private  ownership,  the  extent  of  the  thiiyj 

*  Various  land  grants  to  railroads  construed., 
see  note,  57  .\M.  &  Eng.  R.  Cas.  338. 


,'       Wl 


LAND   GRANTS,  4,  5. 


135 


granted  is  to  be  ascertained  by  tlie  rules  of 
construction  applicable  to  private  deeds. 
A'lorney-General  v.  Dclaiuare  &*  li,  B.  K. 
Co.,  27  A'.  /.  Eq.  631.— guoTED  IN  Long 
Uriuicli  Coni'rs  v.  West  End  R.  Co.,  29  N. 
J.  Eq.  566;  Stockton  v.  Central  R.  Co.,  50 
N.  J.  Eq.  52. 

4.  Uule  of  strict  construction. — All 
govurnment  grants  are  to  be  strictly  con- 
strued against  the  grantees.  Nothing 
passes  but  what  is  conveyed  in  clear  and 
ixplicit  language,  and  nothing  can  be  im- 
|ili(.(i.  Dubuque  G^  P.  R.  Co.  v.  Litchfield, 
zi  I  low.  (If.  S.)  66.  Pennsyhaniii  K,  Co. 
V.  Xittioiial  K,  Co.,  23  N.  J.  Eq.  441.— 
Following  Delaware  &  R.  Canal  Co.  v. 
Cainden  &  A.  R.  Co.,  16  N.  J.  Eq.  372. 
OioriNG  Com.  v.  Erie  &  N.  E.  R.  Co.,  27 
Pa.  St.  339. 

Wiicre  the  provision  of  an  act  clearly 
shows  that  it  was  intended  that  the  road 
authorized  by  it  should  be  constructed  out- 
side of  a  river,  no  necessity  to  go  into  the 
river  for  the  construction  of  it  will,  by  im- 
plication, confer  authority  to  construct  it  in 
the  river.  The  grant  must  fail  if  the  road 
cannot  be  built  outside  of  the  river.  Ste- 
vens V.  Erie  R.  Co.,  21  A'.  J.  Eq.  259. 

5.  Wlicn  title  vests— Priority.*— 
Where  congress  grants  the  odd-numbered 
sections  of  land  for  a  given  distance  on 
each  side  of  a  railroad,  before  the  road  is 
located,  the  title  does  not  pass  to  any  par- 
ticular sections  until  tlie  line  of  the  road  is 
made  certain,  which  makes  certain  also  the 
sections  granted.  Hannibal  {r"  St.  J.  R.  Co. 
V.  Smith,  9  Wall.  {U.  S.)  95. — Following 
Wolcott  V.  Des  Moines  Co.,  5  Wall.  681  ; 
Burlington  &  M.  R.  R.  Co.  7>.  Fremont 
County,  9  Wall.  89.— Followed  in  Clark- 
son  V.  Buchanan,  53  Mo.  563.  Reviewed 
IN'  Palmer  v.  Boom,  80  Mo.  99. — AWt/  Or- 
leans  Pac.  R.  Co.  v.  Parker,  143  U.  S.  42, 
12  Slip.  Ct.  Rep.  364.— Referring  to  New 
Orleans  Pac.  R.  Co.  v.  United  States,  124 
U.  S.  124;  Deseret  Salt  Co.  7>.  Tarpey,  142 
U.  S.  241. 

When  the  surveys  are  made  and  the  line 
of  the  road  laid  down  by  protraction 
through  these  surveys,  the  sections  are  de- 
termined,  or  "selected,"   and    no    further 


*  When  title  to  land  grant  vests,  see  note,  14 
Am.  &  Eno.  R.  Cas.  503. 

When  title  vests.  Performance  of  conditions. 
D  Illation  of  swamp  land  to  company,  see  51 
Am.  &  Eng.  R.  Cas.  285.  abslr. 


choice  or  sel«ction  is  to  be  made.    Hunne- 
well  V.  Cass  County,  22  Wall.  {U.  S.)  464. 

Where  an  act  of  congress  makes  a  grant 
of  land  of  the  odd-numbered  sections  within 
a  certain  distance  of  a  railroad,  the  title  of 
the  corporation  to  the  land  vests  at  once, 
and  can  only  be  thereafter  divested  by  the 
government  for  a  failure  to  perform  condi- 
tions imposed,  or  upon  a  proper  proceeding 
instituted  to  revest  the  title  in  the  govern- 
ment. Southern  Pac.  R.  Co.  v.  Orton,  32 
Fed.  Rep.  457. 

An  act  enacting  that  "  there  be  and  is 
hereby  granted  "  five  alternate  sections  per 
mile  on  each  side  of  a  railroad,  notwith- 
standing it  provided  for  the  issue  of  patents 
as  fast  as  portions  of  the  road  twenty  miles 
long  were  constructed,  and  reserved  a  right 
of  forfeiture  on  the  land  not  patented,  and 
withheld  patents  until  the  expenses  of  sur- 
veying were  paid,  conveyed  a  title  from  the 
date  of  the  act  on  which  the  company  could 
sue  for  possession,  or  lease  or  grant  the 
land  without  proof  of  any  deed  or  patent. 
Deseret  Salt  Co.  v.  Tarpey,  5 1  Am.  &>  Ettg. 
K.  Cas.  276,  142  t/.  5.  241,  12  Sup.  Ct.  Rep. 
158.— Quoted  in  Jatunn  v.  Smith,  95  Cal. 
154.  Referred  to  in  New  Orleans  Pac. 
R.  Co.  V.  Parker,  143  U.  S.  42,  12  Sup.  Ct. 
Rep.  364. 

The  words  "  that  there  be  and  is  hereby 
granted,"  employed  by  congress  in  granting 
lands  to  railroads,  imply  a  grant  in  prascnti, 
and  not  a  promise  of  a  grant  in  futuro. 
Missouri,  K.  &-  T.  R.  Co.  v.  Kansas  Pac.  R. 
Co.,  c)-j  {/.S.^gi. — Following  Schulenberg 
V.  Harriman,  21  Wall.  (U.  S.)44;  Leaven- 
worth, L.  &  G.  R.  Co.  V.  United  States,  92 
U.  S.  733.— Followed  in  St.  Jo.scph  &  D. 
C.  R.  Co.  V.  Baldwin,  103  U.  S.  426. —  Wood 
V.  Burlington  <3-  M.  R.  R.  Co.,  10  Am.  &^ 
Eng.  R.  Cas.  611,  104  U.  .S'.  329. 

The  Act  of  Congress  of  March  3,  1865, 
extending  the  tinie  for  the  completion  of 
certain  land-grant  railroads  in  the  states  of 
Minnesota  and  Iowa,  and  increasii'-j  a  prior 
grant  to  Minnesota,  and  the  act  of  March  3, 
1 87 1,  authorizing  the  St.  Paul  &  Pacific 
railroad  to  change  its  route — held,  to  be  in- 
dependent acts,  and  not  amendments  of 
prior  acts,  and  therefore  only  conveying 
title  to  lands  claimed  thereunder  from  their 
date.  .SV.  Paul  &■'  P.  R.  Co.  v.  Northern 
Pac.  R.  Co.,  139  f/.  5.  I.  II  Sup.  Ct.  Rep. 
389. 

The  grant  to  the  Minnesota  &  Pacific  R. 
Co.  in  1857,  which  company  was  succeeded 


Hi' 


t 

■".  'f.V*  ■ 

i 


I 


T 


136 


LAND  GRANTS,  6. 


by  the  St.  Paul  &  Pacific  R.  Co.,  which  was 
iiself  succeeded  by  the  St.  Paul,  M.  &  M. 
K.  Co.,  has  been  surrendered,  and  in  lieu 
thereof  a  new  one  has  been  taken,  which 
new  jjiant  is  subsequent  to  tlie  rights  con- 
ferred by  the  land  grant  to  tlie  Northern 
Pacific  K.  Co.  Hence  the  last-named  com- 
pany hold  by  priority  of  right  the  lands  at 
tlie  intersection  of  the  two  roads  at  Glyn- 
don.  Northern  Pac.  li.  Co.  v.  St.  Paul,  M 
&*  M.  P.  Co.,  2$  Aw.  &^  Eng.  P.  Cus.  o 
Pat.  P('p.  551.— Applying  Leavenw.ri'  f  . 
&  G.  H  Co.  V.  United  States,  92  U.  S  7.  . 
Van  VVyck  v.  Knevuls,  106  U.  S.  365,  i  Sup. 
Ct.  Rep,  336;  Denver  &  R.  G,  R.  Co.  v. 
Ailing,  99  U.  S.  475;  Missouri,  K.  «&  T.  P.. 
Co.  V.  Kansas  Pac.  k.  Co.,  97  U.  S.  498.  Dis- 
tinguishing Cedar  Rapids  &  M.  R.  R.  Co. 
V.  Herring,  no  U.  S.  27,  3  Sup.  Ct.  Rep. 
485;  Kansas  Pac.  R.  Co.  v.  Dunmeyer,  113 
LI.  S.  629,  5  Sup.  Ct.  Rep.  566.  Quoting 
Missouri,  K.  &  T.  R.  Co.  v.  Kansas  Pac.  R. 
Co.,  97  U.  S.  497. 

Under  the  Act  of  Congress  of  March  3, 
1871,  entitled  "An  act  to  incorporate  the 
Texas  Pacific  railroad  company,  and  to 
aid  in  the  construction  of  its  road,  and  for 
other  purposes,"  the  full  equitable  title  to 
the  land  passed  when  the  company  filed  a 
map  of  a  definite  location  of  its  road;  and 
no  adverse  rights  could  attach  to  the  land 
between  the  date  of  filing  such  definite  lo- 
cation and  an  order  of  the  proper  govern- 
ment ofBcer  withdrawing  the  land  from  sale. 
Southern  Pac.  P.  Co.  v.  Stanley,  49  Fed. 
Pep.  263. 

An  act  granting  lands  in  aid  of  a  railway 
provided  that  patents  should  issue  therefor 
as  each  twenty  miles  of  the  road  should  be 
completed  ;  and  that  the  lands  when  pat- 
ented should  be  subject  to  the  disposal  of 
the  company  for  the  purposes  of  construc- 
tion and  equipment  of  the  road,  and  no 
other.  The  company  claimed  that  these 
lands  were  only  held  in  trust  by  it  for  the 
government  to  secure  the  purpose  of  the 
gratit,  and  were  therefore  not  subject  to 
taxation.  Held,  that  the  patents  vested  the 
complete  title  to  the  land  in  the  company, 
and  that  its  claim  of  exemption  from  taxa- 
tion was  not  well  taken.  Xorth  Wis.  P. 
Co.  V.  Parron  County  Sup'rs,  8  Piss.  {U.  S.) 
414. 

PlaiiitifT,  who  held   land   granted  under 
the    Pacific   railrond    grant   of    the   act  of 
congress  of  1862,  as  amended  in  1864,  com 
menced  a  proceeding  against  defendants  to 


abate  a  ditch  which  had  been  cut  across  the 
public  domain,  under  the  act  of  congress  of 
July  26,  1866.  Section  4  of  the  act  of  1862 
provides  that  when  forty  miles  of  the  road 
is  completed  three  commissioners  shall  be 
appointed  to  examine  the  same  and  report 
to  the  president  of  the  United  States,  who 
should  thereupon  issuj  a  patent  for  the  lands 
opposite  the  forty  miles,  if  the  report  was  ap- 
proved. And  it  appeared  that  a  patent  for 
♦he  land  in  controversy  was  issued  June  27, 

'")7,  and  it  did  not  appear  that  the  certifi- 
L  ae  was  made  by  said  commissioners  prior 
to  the  passage  of  the  act  of  1866,  authoriz- 
ing the  ditch,  //eld,  that  the  company  had 
no  V  ■  cqi»ity  which  could  be  recognized 
bythi"  St  i*e  cf  arts  until  said  commissioners 
made  their  report;  and  therefore  neither 
the  company  nor  one  holding  under  it  ac- 
quired the  right  to  abate  ditches  lawfully 
on  the  land  at  the  time  it  acquired  title. 
Proderv.  Natoma  IV.  &*  M.  Co.,  50  Cal.  621. 

6.  Determination  of  conflicting: 
claims.— Where  land  is  granted  to  a  rail- 
road company  before  its  track  is  located, 
the  title  to  the  specific  land  attaches  by  a 
location  of  the  road,  and  takes  eflect  by  rela- 
tion as  of  the  date  of  the  grant,  so  as  to  cut 
ofl  intervening  claims  of  other  roads,  claim- 
ing under  other  grants,  unless  the  lands  are 
specially  reserved  in  the  statute.  Missouri, 
K.  6-  T.  P.  Co.  V.  Kansas  Pac.  P.  Co.,  97 
U.  S.  491. -Followed  in  St.  Paul  &  S.  C. 
R.  Co.  V.  Winona  &  St.  P.  R.  Co.,  112  U.S. 
720. 

In  case  of  conflict  between  railroad  land 
grants  the  elder  title  must  prevail.  So 
held,  where  the  Northern  Pacific  railroad 
claimed  land  in  Minnesota  under  a  grant  of 
July  2,  1864,  and  the  St.  Paul  &  Pacific 
railroad  claimed  part  of  the  same  lands 
under  Acts  of  Congress  of  March  3,  1865, 
and  March  3,  1871.  St.  Paul  Sf  P.  P.  Co. 
V.  Northern  Pac.  P.  G>.,  139  6/.  5.  i.  11  Sup. 
Ct.  Pep.  389.— Reviewed  in  Northern  Pac. 
R.  Co.  V.  Barnes,  2  N.  Dak.  310. 

Where  the  United  States  sue  to  invali- 
date the  claim  of  a  company  to  certain 
lands,  and  to  annul  patents  which  had  been 
issued  for  a  part  of  the  lands,  and  certain 
contracts  and  deeds  entered  into  between 
the  company  and  individual  purchasers, 
who  were  parties  to  the  suit,  an  injunction 
will  not  issue  to  restrain  the  cutting  of  tim- 
ber on  the  land  before  a  hearing  on  the 
merits,  and  after  answers  have  been  filed 
setting  up  such  facts  as  to  sustain  the  con^- 


LAND   GRANTS,  7. 


137 


pany's  title,  if  found  true  at  the  trial. 
United  States  v.  Southern  l\ic.  A'.  Co.,  55 
J'i-(i.  Piji-  566. — Quoting  Uniied  States  v. 
Southern  Pac.  R.Co.,  146  U.  S.  570, 13  Sup. 
Ct.  Rep.  152. 

A  state  and  its  grantees  claimed  title  to 
lands  under  the  United  States,  as  did  also  a 
railroad  company  and  its  grantees.  The 
lands  in  controversy  fell  within  the  limits 
of.  a  grant  to  the  railroad  company,  but 
by  mistake  and  inadvertence  of  the  land 
department  they  were  listed  to  the  state. 
Discovering  its  mistake,  the  land  depart- 
ment refused  to  issue  to  the  company  a 
patent  for  the  lands  until  the  erroneous 
listing  to  the  state  was  set  aside.  The 
state  granted  these  lands  to  individuals  and 
issued  patents  therefor.  Held,  that  the 
relative  rights  of  the  parties  could  be  de- 
termined by  proceedings  in  the  courts  on 
behalf  of  the  grantees  of  the  company 
against  the  grantees  of  the  state,  and  that 
the  United  States  had  no  such  interest  in 
tiie  subject-matter  of  the  controversy  as 
warranted  their  filing  a  bill  for  setting 
aside  and  canceling  the  erroneous  listing 
to  tlie  state.  Curtner  v.  United  States,  57 
Am.  &>  Eng.  K.  Cas.  383,  149  i/.  S.  662,  13 
5«/.  Ct.  Rep.  1041. 

Plaintiff  company  claimed  certain  lands 
under  the  Act  of  Congress  of  July  2,  1864, 
and  set  up  that  defendants  had  procured  a 
patent  to  the  lands,  through  falsely  repre- 
senting that  they  were  mineral  lands,  in 
1879,  and  prayed  for  a  decree  that  the  de- 
fendants be  declared  as  holding  as  trustees 
for  plaintiff,  and  be  required  to  convey  the 
land  to  plaintiff.  Held,  that  if  plaintiff's 
contention  was  correct  it  already  had  the 
legal  title  prior  to  that  of  defendants,  and 
it  could  recover  the  lands  in  ejectment,  and 
that  a  decree  directing  defendants  to  con- 
vey the  land  to  plaintiff  would  not  take  the 
place  of  patents  from  the  United  States,  and 
that  a  bill  for  such  relief  could  not  be  main- 
tained. Northern  Pac.  K.  Co.  v.  Cannon,  46 
Fed.  Rep.  237.— Quoting  Wisconsin  C.  R. 
Co,  V.  Price  County,  133  U.  S.  510,  10  Sup. 
Ct.  Rep.  341. 

Neither  could  the  company,  in  such  case, 
wiien  out  of  possession  of  the  land,  main- 
tain a  bill  on  the  ground  of  preventing  a 
multiplicity  of  actions,  as  it  could  join  any 
number  of  parties  in  an  action  of  ejectment. 
Northern  Pac.  R.  Co.  v.  Amacker,  46  Fed, 
Rep.  233.— .-Vpplying  Northern  Pac.  R.  Co. 
f.  Cannon,  46  Fed.  Rep.  224. 


7.     Conflicting    and    overlappint; 

gi'UUtM."' — ill  grants  of  lands  to  aid  in  build- 
ing railroads  the  title  to  the  lands  within 
the  primary  limits  within  which  all  the  odd 
or  even  sections  are  granted  relates,  after 
the  road  is  located  according  to  law,  to  the 
date  of  the  grant ;  and  in  cases  where  these 
limits,  as  between  different  roads,  conflict 
or  encroach  on  each  other,  priority  of  loca- 
tion of  the  line  of  road  gives  priority  of 
title.  St.  Paul  &*  S.  C.  R.  Co.  v.  Winona 
S-  St.  P.  R.  Co.,  112  U.  S.  720,  5  Sup.  Ct. 
Rep.  334.— Following  Missouri,  K.  &  T. 
R.  Co.  V.  Kansas  Pac.  R.  Co.,  97  U.  S.  501 ; 
Van  Wyck  v.  Knevals,  106  U.  S.  360;  Cedar 
Rapids  &  M.  R.  R.  Co.  v.  Herring,  1 10  U.  S. 
27 ;  Grinnell  v.  Chicago,  R.  I.  &  P.  R.  Co., 
103  U.  S.  739.— Followed  in  Barney  v. 
Winona  &  St.  P.  R.  Co.,  24  Fed.  Rep.  889, 
117  U.  S.  228,  6  Sup.  Ct.  Rep.  654. 

When  the  acts  of  congress  in  such  cases 
are  of  the  same  date,  or  grants  are  made  for 
different  roads  by  the  same  statute,  priority 
of  location  gives  no  priority  of  right ;  but 
where  the  limits  of  the  primary  grants  which 
are  settled  by  the  location  conflict,  as  by 
crossing  or  lapping,  the  parties  building  the 
roads  under  those  grants  take  the  sections 
within  the  conflicting  limits  of  primary 
location  in  equal  undivided  moieties,  with- 
out regard  to  priority  of  location  of  the  line 
of  the  road  or  priority  of  construction.  St. 
Paul  <S-  5.  C.  R.  Co.  v.  Winona  &•  St.  P.  R. 
Co.,  112  U.  S.  720,  5  Sup.  Ct.  Rep.  334. — 
Followed  in  St.  Paul,  M.  &  M.  R.  Co.  v. 
Greenhalgh,  26  Fed.  Rep.  563.  Quoted  in 
Southern  Pac.  R.  Co.z/.  Araiza,  57  Fed.  Rep. 
98. 

A  different  rule  prevails  in  case  of  lands 
to  be  selected  in  lieu  of  those  within  the 
limits  of  primary  location,  wliich  have  been 
sold  or  pre-empted  before  the  location  is 
made,  where  the  limits  of  selection  inter- 
fere or  overlap.     St.  Paul  &*  S.  C.  R.  Co.  v. 

Winona  &'  St.  P.  R.  Co.,  112   U.  S.  720,  5 
Sup.  Ct.  Rep.  334. 

In  such  cases  neither  priority  of  grant 
nor  priority  of  location  nor  priority  of  con- 
struction give  priority  of  right;  but  this  is 
determined  by  priority  of  selection,  where 
the  selection  is  made  according  to  law.  St. 
Paul  &•  S.  C.  R.  Co.  V.  Winona  St*  St.  P.  R. 
Co.,  112   U.  S.  720,  5  Sup.  Ct.  Rep.  334.— 

Following  Ryan  v.  Central  Pac.  R.  Co., 

*  Conflicting  and  overlapping  railroad  land 
grants,  see  note,  46  Am.  &  Eng.  R.  Cas.  430. 


I 
i 

I 


'If 


f 


138 


LAND   GRANTS,  8. 


99  U.  S.  382;  Grinnell  v.  Chicago,  R.  I.  & 
P.  U.  Co.,  103  U.  S.  739;  Cedar  Raijiil-  li  M. 
R.  R.  Co.  V.  Herring,  1 10  U.  S.  27  ;  Iv.insas 
Pac.  R.  Co.  V.  Atcliison,  T.  &  S.  V.  R.  Co., 
112  U.  S.  ^\^.— Hastings  (5-  D.  A'.  Co.  v.  S/. 
Paul,  S.  &•  T.  /•'.  R.  Co.,  44  Fed.  Kep.  817; 
affirming;  32  bed.  Kep.  821. 

Tlie  lands  whicii  the  Union  Pacific  R.  Co. 
was  entitled  to  under  the  Act  of  Congress 
of  1862,  as  amended  in  1864,  and  those  that 
the  company,  constructing  what  is  known 
as  ilie  Sioux  City  branch  of  the  road,  were 
entitled  to,  conflicted  or  overlapped,  and  the 
government  issued  patents  to  tlie  two  com- 
panies jointly  as  tenants  in  common.  Held, 
that  such  patents  were  properly  issued,  and 
that  neither  company  was  the  exclusive 
owner  of  the  lands,  but  might  have  parti- 
tion thereof  as  between  themselves.  Sioux 
City  6-  P.  R.  Co.  V.  Union  Pac.  R.  Co.,  4 
Dill.  {U.  S.)  307. 

8.  Conflict  with  homestead  claims.* 
— Lands  selected  by  a  railroad  under  an  in- 
demnity grant  to  it,  after  a  patent  issued 
therefor,  conveys  a  title  superior  to  a  patent 
subsequently  issued  under  the  Homestead 
Act  of  1862.  Ryan  v.  Central  Pac.  R.  Co.,  99 
U.  S.  382.— Followed  in  St.  Paul  &  S.  C. 
R.  Co.  V.  Winona  &  St.  P.  R.  Co.,  112  U.  S. 
720. 

The  line  of  definite  location  of  a  railroad, 
whicli  determines  the  rights  of  companies 
to  land  under  land-grant  acts  of  congress, 
is  definitely  fixed,  within  the  meaning  of 
those  acts,  by  filing  the  map  of  its  location 
with  the  commissioner  of  the  general  land 
office  at  Washington.  Kansas  Pac.  R.  Co. 
v.  Dunmeyer,  113  U.  S.  629,  5  Sup.  Ct.  Rep. 
566.— Approvedin  Sioux  City&  I.  F.  T.  L. 
&  L.  Co.  V.  Griffey,  72  Iowa  505,  34  N.  W. 
Rep.  304.  Distinguished  in  Northern 
Pac.  R.  Co.  V.  St.  Paul,  M.  &  M.  R.  Co.,  25 
Am.  &  Eng.  R.  Cas.  99,  26  Fed  Rep.  551 ; 
Young  V.  Goss.  40  Am.  &  Eng.  R.  Cas.  435, 
42  Kan.  502,  22  Pac.  Rep.  572.  Followed 
in  Brown  v.  Corson,  16  Oreg.  388.  Quoted 
IN  Mclntyre  v.  Roeschlaub,  37  Fed.  Rep. 
556;  Whitney  2/.  Taylor,  45  Fed.  Rep.  616. 
Reviewed  in  Bardon  v.  Northern  Pac.  R. 
Co.,  145  U.  S.  535.  12  Sup.  Ct.  Rep.  856.— 
St.  Paul  &*  S.  C.  R.  Co.  V.  Ward,  51  Am. 


*  Granting  lands  to  a  railroad  exceptinR  such 
as  a  pre-emption  or  homestead  claim  may  have 
attached  to.  When  claim  is  considered  as  at- 
tached to  the  land,  see  46  Am.  &  Eng.  R.  Cas. 
446,  abstr. 


«S-  Eng.  R.  Cas.  325,  47  Minn.  40,  49  A'.  W. 
Refi.  401. 

Undertheactsgranting  lands  to  aid  in  the 
construction  of  a  line  of  railroad  from  tlic 
Missouri  river  to  the  Pacific  ocean,  the 
claim  of  a  homestead,  or  pre-emption  en- 
try, made  at  any  time  before  the  filing  of 
that  map  in  the  general  land  office  will  at- 
tach, within  the  meaning  of  those  statutes, 
and  no  land  to  whicli  such  right  has  at- 
tached comes  within  the  grant.  Kansas 
Pac.  R.  Co.  v.  Dunmeyer,  113  U.  S.  629,  5 
Sup.  Ct.  Rep.  566.— Applied  in  Burr  v. 
Greeley,  52  Fed.  Rep.  926.  Followed  in 
Gliddei)  v.  Union  Pac.  R.  Co.,  30  Fed.  Rep. 
660;  Northern  Pac.  R.  Co.  v.  Wright,  51 
Fed.  Rep.  68.  Quoted  in  Northern  Pac. 
R.  Co,  V.  Sanders,  47  Fed.  Rep.  604 ;  Weeks 
V.  Bridgman,  41  Minn.  352,  43  N.  W.  Rep, 
81.  Reaffirmed  in  Walden  v.  Knevals, 
114  U.  S.  373- 

The  subsequent  failure  of  the  person 
making  such  claim  to  comply  with  the  acts 
of  congress  concerning  residence,  cultiva- 
tion, and  building  on  tlie  land,  or  his  actual 
abandonment  of  the  claim,  does  not  cause 
it  to  revert  to  the  railroad  company  and  be- 
come a  part  of  the  grant.  The  claim  hav- 
ing attached  at  the  time  of  filing  the  definite 
line  of  the  road,  it  did  not  pass  by  the  grant, 
but  was,  by  its  express  terms,  excluded,  and 
the  company  had  no  interest,  reversionary  or 
otherwise,  in  it.  Kansas  Pac.  R.  Co.  v. 
Dunmeyer,  113  U.  S.  629,  5  Sup.  Ct.  Rep. 
566. 

Where  the  location  of  a  railroad  line  is 
approved  by  the  department  of  the  interior, 
a  reservation  of  public  land  from  entry, 
made  by  the  department  of  the  interior  as 
coming  within  the  limits  of  a  railroad  grant, 
operates  to  withdraw  the  land  from  home- 
stead entries,  although  it  is  afterwards  found 
that  the  location  of  the  railroad  is  invalid, 
so  that  the  lands  thus  reserved  do  not  come 
within  such  limits.  Hamblin  v.  Western 
Land  Co.,  57  Am.  (&*  Ei^.  R.  Cas.  376,  147 
U.  S.  531.  \iSup.  Ct.  /iV/.  353. 

Where  land  was  patented  to  a  state  for 
the  benefit  and  use  of  one  railroad  company, 
and  the  circuit  court  afterwards  decreed 
that  the  said  patents  should  have  been  is- 
sued for  the  benefit  of  another  company 
which  had  previously  located  its  route,  a 
third  party  is  in  no  position  to  question  tlie 
force  and  effect  of  that  decision,  and  he 
cannot  make  a  valid  homestead  entry  upon 
such  lands.    Hamblin  v.  Western  Land  Co., 


United 
section  2: 
was  the 
United   S 
Co..    N. 
that  the 
thereof,  w 
there  was 
matter  of 
til  en  resici 


LAND   GRANTS,    8. 


139 


57  Am.  &>  Eng,  R.  Cas.  376,  147  U.  S.  531, 
13  ^up.  CI.  Rep.  353. 

A  homestead  entry  made  before  the  defi- 
nite location  of  a  railroad,  but  which  had 
been  voluntarily  abandoned  before  such 
definite  location,  although  the  filing  thereof 
was  not  canceled  until  after  the  location, 
did  not  operate  to  except  the  land  from  the 
grant  to  the  railroad  company,  under  the 
provisions  of  the  Act  of  Congress  of  March 
3.  1863,  donating  to  the  state  of  Kansas 
lanrls  to  aid  in  the  construction  of  certain 
railroads  and  telegraphs.  Emsliev.  Young, 
5  Am.  (S-  Ettg.  R.  Cas.  422.  24  Ran.  732-— 
Quoted  in  Young  v.  Goss,  40  Am.  &  Eng. 
K.  Cas.  435.  42  Kan.  502,  22  Pac.  Rep.  572. 

Underthe  Act  of  Congress  of  July  26, 1866, 
granting  lands  to  the  state  of,  Kansas  to  aid 
in  the  construction  of  the  southern  branch 
of  the  Union  Pacific  Railway  and  Telegraph 
when  the  line  of  the  railroad  was  definitely 
located,  the  title  of  the  company  to  the 
odd-numbered  sections  within  the  ten-mile 
limit  of  the  grant  became  absolutely  fixed ; 
but  as  to  any  indemnity  lands  to  which  the 
coinpanv  was  entitled,  the  grant  was  only  a 
float,  and  did  not  attach  to  the  specific 
lands  until  a  selection  was  made.  Missouri, 
K.  &^  T.  R.  Co.  V.  Noyes,  5  Am.  &>  Eng.  R. 
Cas.  440.  25  Ran.  340.— FOLLOWED  IN  Mis- 
souri, K.  &  T.  R.  Co.  V.  Watson,  25  Kan. 

3«7. 

Therefore,  where  plaintiff  made  a  lawful 
homestead  entry  of  public  land  within  the 
indemnity  territory  of  the  company,  prior  to 
any  withdrawal  of  the  lands  from  market  or 
entry,  and  before  such  tract  had  been  se- 
lected as  indemnity  lands,  a  selection  of 
such  tract  by  the  secretary  of  the  interior 
and  granting  a  patent  to  the  company  as 
indemnity  lands,  after  plaintiff  had  com- 
plied witii  all  the  provisions  of  the  home- 
stead act,  would  not  give  the  company  title 
as  against  plaintiff.  Missouri,  R.  &*  T.  R. 
Co.  V.  A'oyes,  5  Am.  &*  Eng.  R.  Cas.  440,  25 
A'li/t.  740. 

A  person  engaged  in  actual  service  in  the 
United  States  made  affidavit  pursuant  to 
section  2293,  U.  S.  Rev.  St.,  stating  that  he 
was  the  head  of  a  family,  a  citizen  of  the 
United  States,  and  a  resident  of  Franklin 
Co.,  N.  Y.  The  affidavit  did  not  state 
that  the  affiant's  family,  or  any  member 
thereof,  was  residing  on  the  land,  or  that 
there  was  any  improvement  thereon,  and,  as 
matter  of  fact,  no  member  of  his  family  was 
tlieii  residiiiK  or  ever  had   resided  on    the 


land,  and  no  improvement  had  been  made 
upon  it.  The  applicant  paid  the  fees  and 
the  entry  was  allowed  by  the  register,  and 
received  in  the  local  land  office  and  re- 
cor(]ed.  HeM,  that  the  entry  having  been 
made  and  recorded,  the  defects  were  not 
sufficient  to  render  it  absolutely  void,  and 
that  a  "  right  of  homestead  settlement "  had 
attached  within  the  meaning  of  the  excep- 
tion in  an  act  granting  lands  in  aid  of  a 
railroad.  Hastings  (S-  D.  R.  Co.  v.  Whit- 
ney, 40  Am.  &^  Ettg.  R.  Cas.  426,  132  I/.  S. 
357,  10  Sup.  Ct.  Rep.  112.  —  yuoTED  IN 
Whitney  v.  Taylor,  45  Fed.  Rep.  616. 

The  Union  Pacific  land-grant  act  (12  U. 
S,  St.  at  L.,  492)  provides  that  the  orig- 
inal grant  to  the  company  is  of  land  "  to 
which  a  pre-emption  or  homestead  claim 
may  not  have  attached  at  the  time  that  the 
line  of  such  road  is  definitely  fixed."  //eM, 
that  the  word  "  attached  "  means  when  a 
settler  has  filed  a  homestead  entry  in  regu- 
lar form ;  and  the  fact  that  such  entry  is 
subsequently  set  aside  because  the  party  is 
not  entitled  to  a  homestead  will  not  give 
the  company  title  to  the  land.  Mclntyre 
V.  Roeschlaub,  37  Fed.  Rep.  556.— Quoting 
Kansas  Pac.  R.  Co.  v.  Dunmeyer,  113  U.  S. 
629,  5  Sup.  Ct.  Rep.  566. 

In  ail  action  by  plaintiff  to  recover  lands 
alleged  to  have  been  included  in  its  grant, 
but  claimed  by  defendant  under  homestead 
entries — held,  that  under  the  amendatory 
Act  of  Congress  of  June,  1864,  the  grant  of 
1856,  which  was  a  grant  in  prasenti  in  the 
nature  of  a  float,  was  made  definite  and  cer- 
tain by  reference  to  the  line  of  said  railroad 
as  then  located,  and  the  lands  granted  be- 
came susceptible  of  accurate,  certain,  and 
determinate  designation;  that  the  entries 
of  the  lands  in  controversy  in  October,  1864, 
were  not  valid,  because  the  grant  had  al- 
ready attached  to  those  identical  lands ; 
and  that  the  right  thus  acquired  could  not 
be  impaired  by  subsequent  legislation,  stale 
or  national,  liurlingion  t5^  M.  R.  R.  Co.  v. 
Laivson,  10  Am.  &>  Eng.  R.  Cas.  655,  58 
Iowa  145,  12  A^.  W.  Rep.  229. 

The  Act  of  Congress  of  1876  is  not  ap- 
plicable in  this  case.  The  right  of  the 
plaintiff  did  not  depend  upon  the  with- 
drawal of  the  lands  from  sale,  or  notice 
thereof.  After  the  line  of  the  road  was 
definitely  fixed  the  lands  included  were  not 
subject  to  homestead  entry,  and  an  enterer 
could  acquire  no  rights  thereby.  Burling- 
ton <S-  M.  R.  R.  Co.  V.  Lawson,  10  Am.  <S- 


I 


:.,■■;■ '-it. 3?*?-    >. 


I  5 


140 


LAND   GRANTS,  8a-10. 


A'«i,'.  A'.  Cas.  655,  58  Iowa   145.  12  A'.  W. 
A'i/>.  229. 

Ha.  UcvLTHioii  tor  brcauli  of  voii- 
ditioii.* — Where  a  land  grant  to  a  railroad 
company  does  not  attach  to  certain  lands 
by  reason  of  a  former  grant  to  another  com- 
pany, a  failure  on  the  part  of  the  first  cliar- 
icred  company  to  earn  its  lands  will  not 
allow  the  other  company's  grant  to  attach 
thereto,  Init  the  lands  will  revert  to  the 
United  States,  United  States  v.  Northern 
Pac.  R.  Co.,  57  Am.  &^  Knt;.  R.  Las.  362,  152 
U.  S.  284,  14  Su/>.  a.  Rep.  598. 

VVlicre  lands  are  granted  to  a  railroad 
company  on  condition  that  it  shall  con- 
struct a  certain  portion  of  its  road  in  a 
given  time,  and  upon  a  failure  to  do  so  that 
the  land  shall  revert  to  the  grantor,  a  fail- 
ure to  comply  with  such  condition  will  au- 
thorize tlie  grantor  to  repossess  himself  of 
the  lands,  and  he  will  take  them  free  from 
tiic  debts  of  the  company,  contracted  while 
it  was  in  possession.  Sc/ilesinger  \ .  Kansas 
City  &^  S.  R.  Co.,  152  I/.  S.  444,  14  Sup.  Ct. 
Rep.  647. 

Wliere  the  condition  upon  which  a  grant 
of  land  is  based  has  been  altered  by  a 
verbal  agreement  subsequently  made,  but 
the  grantee  fails  to  comply  with  it,  either 
as  originally  expressed  or  as  altered,  the 
grantor  has  the  right  to  be  reinvested  with 
the  title  to  the  land,  if  it  does  not  appear 
that  he  waived  or  dispensed  with  the  con- 
dition of  the  grant,  Ragsdalev.  Vicksburg 
«S-  M.  R.  Co.,  62  Miss.  480. 

O.  IjOii^  possession— Presuming  a 
grant. — An  uninterrupted  and  undisputed 
possession  and  use  of  the  locus  in  quo  for 
the  purposes  of  a  railroad  during  thirty 
years,  by  the  company,  is  presumptive  evi- 
dence that  it  has  complied  with  the  re- 
quirements of  the  law  and  thereby  acquired 
the  fee  simple  in  the  land,  or  at  all  events 
it  would  be  presumptive  evidence  of  a  grant 
of  the  right  of  way  over  the  land  for  the 
purposes  of  a  railroad.  Ogle  v.  Philadel- 
phia, \V.  &-  B.  R.  Co.,  3  Houst.  {Del.)  302; 
affirming  3  Houst.  267. 

10.  Grants  of  Indian  lands. — Under 
the  rule  of  strict  construction  of  grants,  a 
naked  grant  of  "  land  "  could  not  operate 
to  include  Indian  lands  which  were  specially 
reserved  to  the  Indians  by  treaty ;  and  the 
provision  of  the  grant  which  excluded  "all 
lanOo   heretofore    reserved   to  the   United 

*  Forfeiture  of  land  grant,  see  notes,  14  Am. 
&  Eng.  R.  Cas.  504 ;  24  Id.  509;  26  Id.  531. 


States  for  any  purpose  whatever "  would 
Operate  to  exclude  such  Indian  lands. 
Leavenworth,  L.  &*  G,  R.  Co.  v.  United 
States,  92  U.  S.  733 ;  affirming  i  AhCrary 
(i/.  5.)  610.— Follow EU  in  Missouri,  K.  & 
T.  K.  Co.  V.  Kansas  Pac.  R.  Co..  97  U.  S. 
491 ;  St.  Joseph  «&  D.  C.  K.  Co.  v.  Baldwin, 
103  U.  S.  426.  yuoi  KU  IN  Northern  Fac. 
R.  Co.  V.  Majors,  5  Mont.  1 1 1. 

The  Act  of  Congress  of  March  3,  1863, 
granting  lands  to  Kansas  to  aid  in  the  con- 
struction of  certain  railroads,  did  not  in- 
clude any  lands  held  by  the  Osage  Indian 
tribes.  Leavenworth,  L.  &*  G.  R.  Co,  v. 
United  States,  92  U.  S.  733 ;  affirming  i 
McCrary  {U.  S.)  610.— Appliku  in  Hardon 
V.  Northern  Pac.  R.  Co.,  145  U.  S.  535,  12 
Sup.  Ct.  Rep.  856.  Followed  in  Mis- 
souri, K.  &  T.  R.  Co.  7'.  United  States,  92  U. 
5,760,;/.  yuoTED  in  Roberts  t/.  Missouri, 
K.  &  T.  R.Co.,  43  Am.  &  Eng.  R.  Cas.  532, 
43  Kan.  102,  22  Pac.  Rep.  1006.  Referred 
TO  in  Union  Pac.  R.  Co.  v.  Douglas  Co.,  31 
Fed.  Rep.  540. 

The  Osage  Indian  lands  were  lands 
"otherwise  appropriated," and  were  not  in- 
cluded in  the  grant  of  1866  for  railroad 
purposes.  The  effect  on  this  case  is  the 
same,  whether  the  act  of  1866  is  treated  as 
taking  effect  before  or  after  the  treaty  with 
the  Indians  came  into  operation  by  the 
proclamation  of  the  president  on  Jan.  21, 
1867.  Missouri,  K.  Sf  T.  R.  Co.  v.  United 
States,  92  U.  S,  760,  «. 

Lands  ceded  by  congress  to  a  railroad 
within  an  Indian  reservation  are  thereby 
withdrawn  from  the  reservation,  and  be- 
come subject  to  the  laws  of  the  state  or 
territory  where  situate.  Utah  &*  N.  R.  Co. 
V.  Fisher,  24  Am.  &«•  Eng.  R.  Cas.  116,  116 
U.  S.  28,  6  Sup.  Ct.  Rep.  246, 

The  grant  by  the  Act  of  Congress  of  July 
2,  1864,  to  the  Northern  Pacific  Railroad 
Co.,  of  lands  to  which  the  Indian  title  had 
not  been  extinguished,  operated  to  convey 
the  fee  to  the  company,  subject  to  tke  right 
of  occupancy  by  the  Indians.  The  manner, 
time,  and  conditions  of  extinguishing  such 
right  of  occupancy  were  exclusively  matters 
for  the  consideration  of  the  government, 
and  could  not  be  interfered  with  nor  put  in 
contest  by  private  parties.  liuttz  v.  North- 
ern Pac.  R.  Co.,  29  Am.  &*  Eng.  R.  CVw.  455, 
119  U.  S.  55,  7  Sup.  Ct.  Rep.  100.— Fol- 
lowed IN  St.  Paul,  M.  &  M.  R.  Co.  v. 
Phelps.  137  U.  S.  528;  Northern  Pac.  R. 
Co.  V.  Wright,  51  Fed.  Rep.  68. 


II. 


11. 

state ' 

Rress  \ 

structio 

make  la 

Will  be 

of  it,  IS 

l"  M. 

Sup.  Ct. 

12.T 

-The 

granted. 

grantinj: 

in  aid  of 

and  imp 

present 


LAND   GRANTS,  ll-t4. 


141 


The  agreement  of  the  Sisseton  and  Wah- 
petmi  bands  of  Dakota  or  Sioux  Indians 
for  the  relinquishment  of  their  title  was  ac> 
ccpted  on  the  part  of  the  United  Stiitcs 
wiun  it  was  approved  by  the  secretary  of 
tlu;  interior,  on  June  19,  1873.  That  a^jree- 
nieni  stipulating  to  be  binding  from  its 
(Lite,  May  19,  1873,  and  the  Indians  having 
retired  from  the  lands  to  their  reservations, 
the  relinquishment  of  their  title,  so  far  as 
the  UiuiL'd  States  are  concerned,  is  held  to 
have  then  taken  place.  Buttz  v.  Northern 
Pac.  A'.  Co.,  29  Am.  &'  Kng,  R.  Cas.  455, 
119  U.  S.  55,  7  Sufi.  Ct.  Kef).  100. 

Upon  th(?  definite  location  of  the  line  of 
the  Northern  Pacific  railroad,  on  May  26, 
1873,  the  right  of  the  company,  freed  from 
any  incumbrance  of  the  Indian  title,  imme- 
diately attached  to  the  alternate  sections ; 
and  no  pre-emptive  right  could  be  initiated 
to  the  land  so  long  as  the  Indian  title  was 
unextinguished.  Buttz  v.  Northern  Pac.  li, 
Co..  29  Am.  6-  Eng,  R.  Cas.  455,  119  U.  S. 
55,  7  Sup.  Ct.  Rep.  100. 

The  swamp-land  act  of  congress,  passed 
September  28,  1850,  vested  the  fee  to  the 
lands  affected  thereby  in  the  state  immedi- 
ately upon  its  taking  effect,  notwithstanding 
the  Indian  title  was  not  then  extinguished. 
The  state  and  its  grantees  held  the  fee  sub- 
ject to  the  Indian  right  of  occupation  up  to 
such  time  as  that  right  was  relinquished, 
wlien  the  right  of  possession  vested  in  the 
owner  of  the  fee.  Snell  v.  Dubuque  6-  S.  C. 
R.  Co.,  78  Iowa  88,  42  A^.  W.  Rep.  588.— 
Followed  in  Snell  v.  Dubuque  &  S.  C.  R. 
Co.,  80  Iowa  767. 

U.   FEDEBAL  0BANT8  TO  STATES. 

I.  In  General. 

11.  Grniit  to  territory  inures  to 
Htatc  when  ailinittetl  to  Union.— Con- 
gress has  the  power  to  authorize  the  con- 
struction of  railroads  in  a  territory  and  to 
make  land  grants  thereto,  and  such  grants 
Will  be  valid  after  such  territory,  or  a  part 
of  it,  is  admitted  as  a  state.  St.  Paul,  M. 
iT'-  M.  R.  Co.  V.  Phelps,  xyj  U.  S.  528,  11 
Siift.  Ct.  Rep.  168. 

1 2.  Title  of  state  before  survey,  etc. 
—  The  words  "there  be  and  is  hereby 
granted,"  as  used  in  the  act  of  congress 
granting  certain  sections  of  land  to  a  state 
in  aid  of  railways,  imply  absolute  donation, 
and  import  a  grant  in  prasenti,  and  vest  a 
present  title  in  the  state,  though  a  survey 


and  location  are  necessary  to  give  precision 
to  it  and  attach  It  to  any  particular  tract, 
After  the  location  of  the  mad  the  grant  he- 
comes  certain,  and  by  relation  has  the  sanie 
efTcct  upon  the  selected  p.irccis  as  if  thvy 
had  been  si)ccitically  named  at  the  date  of 
the  grant;  but  the  grant  only  applies  to 
such  pu'  '"  lands  as  are  owned  absf)lutely  by 
the  Uniiod  States,  as  no  others  are  subject 
to  survey  and  selection.  Leavenworth,  I..  &* 
G.  R.  Co.  V.  United  States,  92  I/.  S.  733. — 
Applied  in  Northern  Fac.  K.  Co.  v.  St. 
Paul,  M.  &  M.  K.  Co..  25  Am.  &  Eng.  R. 
Cas.  99,  26  Fed.  Rep.  551.  Di.stin(;ui.shi:d 
IN  Winona  &  St.  P.  R.  Co.  v.  Harney,  113 
U,  S,  618.  FoLLOWEU  IN  St.  Paul  &  P.  R. 
Co.  z*.  Northern  Pac,  R,  Co.,  139  U.  S.  i. 
QuoTEU  IN  Denny  v.  Dodson,  13  Sawy. 
(U.  S.)  68. 

ill.  Leifislative  control,  generally. 
— The  fact  that  land  is  donated  to  the  state 
by  congress  upon  trust  to  aid  in  the  con- 
struction of  railroads  does  not  impair  the 
legislative  control  over  it.  It  is  the  sole 
judge  of  the  measures  appropriate  to  effect 
the  object  of  the  grant,  and  to  enable  the 
state  to  discharge  the  trust  reposed  in  it  by 
congress.  Little  Rock  iS^  Ft.  S.  R.  Co.  v. 
Hfftvell,  31  Ark.  119. 

14. power  to  declare  forfeiture 

for  non-completion  of  road.— In  case 
the  federal  government,  neither  by  legisla- 
tive enactment  nor  judicial  construction,  has 
declared  the  forfeiture  of  a  grant  of  lands  10 
a  railroad  corporation,  the  legislature  of  the 
state,  which  is  designated  as  the  trustee  in 
the  granting  act  of  congress,  can — if  sue 
has  done  no  act  to  estop  her  from  setting 
up  an  adverse  claim  to  a  present  grantee — 
forfeit  such  grant  on  the  ground  of  the  non- 
fulfilment  of  the  condition  subsequent  to 
said  grant — the  completion  of  the  railroad 
within  the  fixed  period  of  ten  years.  M<nver 
V.  Kemp,  46  Am.  &-  Eng.  R.  Cas.  480,  42  La. 
Ann.  1007,  8  So.  Rep.  830. — Distinguish- 
ing Schulenberg  v.  Harriman,  21  Wall.  (U. 
S.)  44;  Farnsworth  v.  Minnesota  &  P.  R. 
Co.,  92  U.  S.  49. 

So  long  as  a  railroad  company  is  per- 
mitted to  retain  the  occupancy  of  such 
granted  lands  and  to  exercise  the  franchises 
it  has  thus  acquired,  and  the  grantor  shall 
forbear  to  forfeit  the  grant,  the  corporation 
is  entitled  to  proceed  with  the  construction 
of  its  railroad  to  completion  "out  of  time," 
and  thus  fulfil  the  condition  subsequent 
that  is  attached  to  the  grant.     Mower  v. 


149 


LAND  GRANTS,  10-17. 


'lii: 


Kemp,  46  Am.  <S-  Eng.  R.  Cus.  480,  42  La. 
Ann.  1007,  8  So.  Rep.  830. 

Ai  mcst,  an  iiitcrvenitifj,  repealing  statute, 
enacted  l)y  a  lcj,'islaturc  of  the  state  as 
trustee,  could  repeal  and  avoid  its  own 
donation  to  the  railroad  company;  but  it 
containinj,'  only  like  conditions  as  those 
prescribed  in  the  granting  act  of  congress, 
left  the  j^rant  as  it  was  originally.  And  it 
having  never  been  revoked  by  act  of  con- 
gress or  judicial  decree,  a  mere  possessor  of 
tlie  granted  lands,  without  title  from  any 
source,  can  take  nothing  by  the  eifeci  of 
the  repealing  statute,  the  condition  subse- 
quent having  been  intermediately  (ultilied. 
Minver  v.  Kemp,  46  Am.  tS^  Eni;.  R.  Cus,  480, 
42  I. a.  Ann.  1007,  8  So.  Rep.  830. 

15.  Itttvcrshni  lor  condition  bro- 
ki'ii.  —  In  order  that  an  act  of  congress 
sliould  work  a  reversion  to  the  United 
Slates,  for  condition  broken,  of  lands  granted 
by  them  toa  state  to  aid  in  internal  improve- 
ments, the  legislation  must  directly,  posi- 
tively, and  with  freedom  from  all  doubt  or 
ambiguily,manifest  the  intention  of  congress 
to  reassert  title  and  resume  possession.  No 
sucti  intention  is  nuinifested  in  the  act  of  July 
28,  1866  (14  St.  at  L.  338),  so  far  as  it  atTects 
the  lands  granted  to  the  states  of  Arkansas 
and  Missouri  by  the  act  of  February  9,  1853 
(10  St.  at  L.  155),  except  as  to  mineral  lands. 
St.  Louis.  /.  M.  &>  S.  R.  Co.  v.  AhGee,  26 
Am.  &-  Eng.  R.  Cus.  525,  115  17.  S.  469,  6 
Sitp.  Ct.  Rep.  123.— Distinguished  in 
Miller  v.  Swann,  89  Ala.  631.  Followed 
IN  Doe  V.  Larmore,  1 16  U.  S.  198. 

2.  Alabama. 

16.  In  general.— Under  the  acts  of 
congress  granting  lands  to  the  state  in  aid 
of  certain  railroads  (11  U.  S.  St.  at  L.  p.  17  ; 
16  Id.  45),  as  heretofore  construed,  the  legal 
title  to  the  lands  granted  at  once  vested  in 
the  state  for  the  use  and  benefit  of  the  des- 
ignated railroad  companies;  and  it  con- 
tinued in  the  state,  except  as  to  the  lands 
sold  during  the  construction  of  the  road,  in 
continuous  sections  of  twenty  miles,  until 
the  construction  of  the  road  was  completed ; 
and  while  the  title  thus  continued  in  the 
state  the  statute  of  limitations  did  not  be- 
gin to  run  in  favor  of  an  adverse  possessor 
under  color  of  title.  Swann  v.  Gaston,  87 
Ala.  569,  6  So.  Rep.  386. 

But  the  state  having  conveyed  the  lands 
subject  to  the  restrictions  imposed  by  the 


statute,  which  gave  a  conditional  right  of 
sale,  it  could  not  ratify  and  sanction  a  sale 
made  in  violation  of  those  conditions,  nor 
has  it  done  so  in  regard  to  the  lands  ac- 
quired by  the  Alabama  &  Chattanooga  K. 
Co.,  some  of  which  were  alterwards  sold  by 
the  agents  of  that  company  wiihout  author- 
ity; and  subpurchasers  of  those  lands,  being 
sued  by  ilif  railioad  trustees,  cannot  enjoin 
the  action  In  equity  (jn  the  ground  that  the 
purchase  money  paid  was  used  in  complet- 
ing the  road.  MilUr  v.  Sii.<ann,  89  Ala.  631, 
7  So.  Rep.  771.  — DiSTiNOUl.SHiNO  St.  Louis, 
I.  M.  iS:  S.  K.  Co. 7'.  MrGee,  us  U.  S.  4'JO. 

17.  Aft  or  JlllM'  ;»,  185<».-  Under 
the  i)rovi-ions  of  the  Act  of  Congress  ai>- 
provrd  June  3.  1856,  "granting  public  lands 
ii\  alternate  secticjns  to  the  state  of  Al;i- 
bania,  to  aid  in  the  construction  of  certain 
railroads,"  a  present  liile  to  the  lands  passed 
to  the  state,  subject  to  be  divested,  by  proper 
action  taken,  for  breach  of  the  condition 
subsequent  annexed  to  the  grant;  and 
tiidvigli  this  title  did  not  attjich  to  any  spe- 
cilic  sections  ol  land  imtil  the  route  of  the 
particular  railroad,  to  aid  in  the  construc- 
tion of  whicli  the  grant  was  made,  was  defi- 
nitely located  within  the  time  allowed  by 
said  acts  of  congress,  no  title  remained  in 
the  United  Stales  subject  to  entry  or  sale. 
Su'tinn  V.  Lindsey,  14  Am.  6^  Eng.  R,  Cas. 
504,  70  All.  507.  —  Di.STiNGUiSHlNO  Ala- 
bama &  F.  R.  Co.  V.  Burkett.  46  Ala.  569. 
Quoting  Schulenberg?/.  Harriman,  21  Wall. 
(U.  S.)  1^.—  Swann  v.  Larmore,  14  Am.  iS-* 
Eng.  R.  Cas.  519,  70  Ala.  555. —QUOTING 
Schulenberg  7/.  Harriman,  21  Wall.  44. 

Under  said  act  the  state  held  the  lands  so 
granted  in  trust  for  the  purposes  specified, 
limited  by  the  restrictions  and  conditions 
expressed  in  the  grant ;  having  absolute 
power  to  sell  one  hundred  and  twenty  sec- 
tions, within  a  continuous  length  of  twenty 
miles  of  the  road,  before  any  work  was  done 
on  it,  and  the  further  power  to  sell,  as  the 
work  progressed,  the  same  number  of  addi- 
tional sections,  within  other  twenty  contin- 
uous miles,  on  the  governor's  certitlciite 
to  the  secretary  of  the  interior  that  such 
twenty  continuous  miles  of  the  road  were 
completed  ;  and  when  any  of  the  lands  were 
sold  and  conveyed  in  pursuance  of  these 
powers,  the  purchaser  acquired  an  absolute 
title  whether  the  railroad  was  ever  com- 
pleted or  not.  Swann  v.  Lindsey,  14  Am.  &* 
Eng.  R.  Cas.  504,  70  Ala.  507.  Swann  v. 
Larmore,  14  Am.  &*  Eftg.  R.  Cas.  519,  70 


vjjsi; 


LAND   GRANTS,  18. 


148 


555.     Alathis  V.  Tennnsic  &*  C.  A'.  A'. 

Co.,  .S3  ///<».  4'  ••  3  •*>""•  ^'<'/>-  793- 

Beyond  the  first  one  hundred  and  twenty 
sections,  as  to  wliich  an  absdlute  power  of 
sale  was  tjiven,  tiie  state  had  no  authority 
to  si'll  1)1  dispose  of  any  <>f  these  hinds,  even 
It)  the  railroad  company  itself,  except  in 
portions  of  twenty  miles  as  the  road  pro- 
),'rcss('(l,  and  could  not  1  onvcy  lo  its  fjrantce 
or  appointee  any  j^reaier  power  or  interest 
than  was  vested  in  itself.  The  joint  resolu- 
tions o(  the  peneral  assembly,  approved  Jan- 
uary 30,  1858,  by  wliicli  il  was  declared  that 
the  lands  "  are  hereby  disposed  of,  granted 
to,  and  conferred  upon  "  the  railroad  par- 
ticularly designated  "to  be  used  and  ap- 
''cd  by  said  company  upon  the  terms,  con- 
ins,  and  restrictions  in  said  act  of 
'ess  contained,"  although  strong  words 
u.  tyrant  and  disposition  are  used,  "which 
would,  ordinarily,  convey  all  the  title  of  the 
grantor,"  must  be  construed  in  connection 
with  the  act  of  congress,  and  do  not  convey 
to  the  railroad  company  any  greater  power 
or  interest  than  the  state  itself  had;  and  not* 
withstanding  these  joint  resolutions,  the 
lci,'al  title  to  said  lands,  beyond  the  first  one 
hundred  and  twenty  sections,  remained  in 
the  state  until  the  railroad  was  completed. 
Swann  v.  Ltndsey,  14  Am,  &*  Eng.  R.  Cas. 
504,  70  Alii.  507. — <,>uoTlNG  Farnsworth  v. 
Minnesota  &  P.  R.  Co.,  92  U.  S.  49. 

Statutes  of  limitation  do  not,  unless  so 
expressed,  run  against  the  state,  or  the 
United  States,  nor  does  the  statute  begin  to 
run  until  there  is  some  one  entitled  to  sue ; 
and  the  title  to  these  lands  remaining  in  the 
state  until  the  railroad  was  completed,  less 
than  ten  years  before  the  suit  was  brought, 
the  statute  of  limitations  is  no  defense  to 
the  action.  Swann  v.  Ltndsey,  14  Am.  &* 
Eng.  R.  Cas.  504,  70  Ala.  507. 

By  joint  resolutions  of  the  general  assem- 
bly, approved  January  30,  1858,  it  was  de- 
clared "  that  so  much  of  said  lands,  interest, 
rights,  powers,  and  privileges  as  are  or  may 
be  granted  and  conferred,  in  pursuance  of 
the  said  act  of  congress,  to  aid  in  the  con- 
struction of  a  railroad  from  Gadsden  to  con- 
nect with  the  Georgia  and  Tennessee  line  of 
railroads,  through  Chattanooga,  Wills,  and 
Lookout  valleys,  are  hereby  disposed  of, 
granted  to,  and  conferred  upon  the  Wills 
Valley  R.  R.  Co.,  to  be  used  and  applied  by 
said  company  upon  the  terms,  conditions, 
and  under  the  restrictions  in  said  act  of  con- 
gress   contained."      In    1861    said   railroad 


company  sold  the  lands  here  sued  for,  which 
arc  within  six  miles  of  the  railroad,  and 
within  twenty  miles  of  the  poitit  where  it 
cros.ses  the  boundary  line  of  Georgia,  but 
more  than  twenty  miles  from  Gadsden,  and 
more  tha.  twenty  miles  from  Wauhatchie 
in  Tenr'issec,  where  work  on  the  road  was 
commenced,  fivi'  miles  fron\  ChtUtanooga, 
where  the  Georgia  and  Tennessee  railroads 
meet  and  inierset  t  ;  and  the  purchase 
nujncy  paid  was  used  by  the  company  in 
the  construction  of  the  road.  //<•/</,  that 
the  sale  was  authorized  by  the  said  acts  of 
congress  and  joint  resolutions  of  the  gen- 
eral assembly;  and  there  being  no  proof  of 
any  other  sale  having  b<  n  made  by  the 
company,  that  the  court  would  not  presume 
that  the  absolute  power  of  .sale  had  been 
previously  exhausted.  Swann  v,  Larmore, 
14  Am.  &*  Eng,  R.  Cas.  519,  70  Ala.  555. 

The  supreme  court  of  Alabama  will  take 
judicial  knowledge  of  the  fact  that  the 
United  States  has  never  taken  any  action 
declaring  the  forfeiture  of  the  lands  con- 
veyed by  the  above  grant,  and  which  has 
been  set  apart  by  the  state  to  a  certain  rail- 
road. Mat  his  V.  Jenni'ssec  &^  C.  R.  R.  Co., 
83  Ala.  41 1,  3  So.  Rep.  793. 

On  a  sale  by  a  railroad  company  (one  of 
the  beneficiaries  under  the  above  grant)  of 
any  of  the  lands  allotted  to  it  by  the  state, 
if  located  beyond  the  limits  of  the  first 
twenty  miles  of  the  road,  no  title  passes  to 
the  purchaser.  Mathis  v.  Tennessee  Sr*  C. 
R.  R.  Co.,  83  Ala.  41 1,  3  So.  Rep.  793. 

18.  Act  of  April  10,  1800 The  Act 

of  Congress  of  April  10,  1869,  renewing  cer- 
tain land  grants  to  the  state  f'>r  railroad 
purposes,  made  by  the  act  of  June  3,  1856,  is 
not  a  new  grant,  but  an  extension  of  the 
time  for  completion  of  the  road  as  fixed  by 
the  original  grant.  Doe  v.  Larmore,  116  U. 
S.  198,  6  Sup.  Ct.  Rep.  365.— Following 
St.  Louis,  L  M.  &  S.  R.  Co.  v.  McGee,  115 
U.  S.  469. 

In  such  case  the  completion  of  the  road 
within  the  time  fixed  by  the  act  of  1869  per- 
fected the  title  of  the  railroad  company  un- 
der the  grant  of  1856,  which  would  inure  to 
the  benefit  of  the  grantees  of  the  railroad. 
Doe  V.  Larmore,  116  U.  S.  198,  6  Sup.  Ct. 
Rep.  365.— Following  St.  Louis,  I.  M.  &  S. 
R.  Co.  V.  McGee,  115  U.  S.  469. 

The  grant  by  the  act  of  1869  does  not  em- 
brace all  odd  sections  of  land  which  are 
within  six  miles  of  that  portion  of  the  road 
which  has  been   constructed  through  the 


I 
i 


■  f 


144 


LAND  GRANTS,  19-23. 


state  of  Georgia.     Swann  v.  Jenkins,  82  Ala, 
478,  2  So.  licp,  136. 

The  grant  of  lands  by  the  act  of  June  3, 
1856,  expired  by  its  fiwn  ter.'is  in  ten  years, 
and  all  lands  unsold  by  a  railroad  company 
whose  road  w;is  not  then  completed  reverted 
tortile  United  States;  and  althougli  the  grant 
was  afterwards  revived  and  renewed  by  the 
Act  of  Congress,  approved  April  10, 1869,  the 
renewal  was  made  subject  to  all  pre-emption 
rights  which  had  attached  in  the  mean- 
time ;  and  these  pre-emption  rights  and 
homestead  entries,  being  confirmed  by  the 
subsequent  act  approved  April  21,  1876, 
must  prevail  over  the  claim  of  the  railroad 
company  under  the  renewed  grant.  South 
6^  A'.  Ala.  R.  Co.  v.  Gilliam,  85  Ala.  171,  4 
So.  Rep.  694. 

3.  California.    Florida.     Illinois. 

1 0.  California.— Tlie  Act  of  Congress  of 
July  23,  1866,  confirming  selections  of  pub- 
lic land  made  by  or  on  behalf  of  the  state 
under  grants  of  congress,  which  selections 
were  void  when  the  act  passed,  did  not  have 
the  effect  of  confirming  the  title  of  the  state 
to  a  selection  of  an  odd  section  within  the 
belt  granted  to  the  Central  Pacific  R.  Co. 
•by  acts  of  July  i,  1862,  and  July  2,  1864. 
Central  Pac.  R.  Co.  v.  Robinson,  49  Cal.  446. 
—Following  Central  Pac.  R.  Co.  v.  Yol- 
land.  49  Cal.  438. — Followed  in  Kaiser  v. 
McLaughlin,  49  Cal.  449.  Overruled  in 
McLaughlin  v.  Fowler,  52  Cal.  203. 

20.  Florida.— The  trustees  of  the  Flor- 
ida internal  improvement  fund,  created  to 
aid  in  building  railroads  and  internal  im- 
provements, are  but  agents  of  the  state, 
holding  the  legal  title  to  the  lands  for  con- 
venience, while  the  state  is  the  beneficial 
proprietor.  Union  Trust  Co.  v.  Southern 
Inland  N.  Sr*  I.  Co.,  130  U.  S.  565,  9  Sup. 
Ct.  Rep.  606.— Quoting  Florida  v.  Ander- 
son, 91  U.  S.  667. 

Under  the  Act  of  Congress  of  May  17, 
1855,  granting  certain  public  lands  to  the 
state  for  railrr)ad  purposes,  and  providing 
for  an  agent  to  be  appointed  by  the  gov- 
ernor of  the  state  to  select  other  lands  in 
lieu  of  any  that  might  have  been  selected  or 
preempted  before  the  route  of  a  railroad 
might  be  fixed,  which  should  be  subject  to 
the  approval  of  the  secretary  of  the  interior, 
no  title  passes  to  the  state  for  such  indem- 
nity lands  until  the  selection  is  approved 
by  such  secretary.  Davis  v.  Capitol  Phos- 
phate Co.,  57  Fed.  Rep.  118.— Following 


Wisconsin  C.  R.  Co.  v.  Price  County,  133  U. 
S.  496,  10  Sup.  Ct.  Rep.  341. 

21.  Illinois. — The  act  of  congress  grant- 
ing lands  to  the  state,  donating  lands  in  aid 
of  the  Central  railroad,  and  the  certified 
schedules  issued  by  the  secretary  of  the  in- 
terior and  tlie  commissioner  of  the  general 
land  office,  are  evidence  of  title.  Sawyer 
V.  Co.v,  63  ///.  1 30. 

Swamp  and  overflowed  lands  selected  by 
the  Illinois  Central  R.  Co.  in  lieu  of  other 
lands  sold  or  pre-empted  after  the  list 
thereof,  properly  certified,  was  filed  for  rec- 
ord in  the  proper  county,  cannot  be  recov- 
ered by  the  county  in  which  they  lie,  as  the 
legal  title  to  such  lands  is  in  the  railro;id 
company  and  not  in  the  county.  Illinois  C. 
R.  Co.  v.  Union  County,  94  ///.  70. 

Under  the  two  grants  to  the  state,  of 
lands  for  the  purpose  of  constructing  a  rail- 
road, and  that  of  swamp  and  overflowed 
lands,  the  state  took  the  whole  legal  title, 
with  full  power  of  disposition,  without  re- 
gard to  the  uses  for  which  the  lands  were 
granted.  Illinois  C.  R.  Co.  v.  Union  County, 
94  ///.  70. 

Upon  the  selection  of  the  lands  granted 
the  state  for  railroad  purposes,  by  the  Illi- 
nois Central  R.  Co.,  as  provided  in  the 
statute,  the  grant  to  the  state  under  the  Act 
of  Congress  of  September  20,  1850,  became 
certain,  and  the  grant  attached  to  the  par- 
ticular lands  selected,  and  the  title  to  them 
vested  in  the  railroad  company.  Illinois  C. 
R.  Co.  v.  Union  County,  94  ///.  70. 

4.  loiva. 

22.  Act  of  August  8,  1846.  —  The 

Act  of  Congress  of  Aug.  8,  1846,  granting 
land  to  Iowa  to  aid  in  improving  the  Des 
Moines  river,  and  in  time  conveyed  to  a 
railroad  and  improvement  company,  did 
not  embrace  any  land  above  the  Raccoon 
fork,  nor  authorize  any  location  upon  lands 
out  of  Iowa.  Dubuque  &*  P.  R.  Co.  v. 
Litchfield,  23  How.  {U.  S.)  66.  — Followkd 
IN  Dubuque  &  S.  C.  R.  Co.  7/.  Des  Moines 
Valley  R.  Co.,  109  U.  S.  329;  United  States 
V.  Des  Moines  N.  &  R.  Co.,  (42  U.  S.  510. 
Quoted  in  Northern  Pac.  R.  Co.  v.  San- 
ders, 46  Am.  &  Eng.  R.  Cas.  431,  46  Fed. 
Rep.  239.  Reconciled  in  Courtright  v. 
Cedar  Rapids  &  M.  R.  R.  Co..  35  Iowa  386. 
Reviewed  in  Dubuque  &  S.  C.  R.  Co.  7>. 
Des  Moines  Valley  R.  Co.,  54  Iowa  £9; 
Bullard  v.  Des  Moines  &  Ft.  D.  R.  Co..  14 
Am.  &  Eng.    R.  Cas.  520,  62    I   v:\   ;' 


LAND   GRANTS,  23. 


145 


Dubuque  &*  S.  C.  R,  Co.  v.  Des  Moines  Val- 
Icy  R.  Co.,  14  Am.  &■  Eng.  R.  Cas.  532.  109 
I/.  S-  329.  3  ^"P-  ^"'-  *'''''^-  « 88.— Following 
Dubuque  &  P.  R.  Co.  r.  Litchfield.  23  How. 
66.— FoLLOWKD  IN  United  Scales  v.  Des 
Moines  N.  &  K.  Co.,  i.p  U.  S.  510. 

But  by  the  joint  resolution  of  congress  of 
March  2,  1861,  and  the  act  of  July  12,  1862, 
the  title  of  the  state  to  the  odd-numbered 
sections  above  that  fork,  within  five  miles 
of  the  river,  was  recognized  and  perfected. 
Said  lands  were  "  reserved  "  to  tlie  United 
States,  within  the  meaning  of  another  act 
of  May  15.  1856,  making  a  grant  of  certain 
lands  al.ive  the  Raccoon  fork  to  Iowa  to  aid 
ill  building  railroads,  and  no  title  thereto 
passed  under  said    latter  act.      Wolcott  v. 
Des  Moines  N.  &>  R.  Co.,  5  HWi.  (U.S.) 
681.— Followed  in  Hannibal  &  St.  J.  R. 
Co.  T'.  Smith,  9  Wall.  95;  United  States  v 
Di-s  Moines  N.  &  R.  Co.,  142   U.  S.  510; 
Dubuque  &  S.  C.  R.  Co.  v.  Des  Moines  Val- 
lev  R.  Co.,  54  Iowa  89.     Reaffirmed   in 
Williams t/.  Baker,  17  Wall.  144.   Reviewed 
IN  Bullard  v.  Des  Moines  &  Ft.  D.  R.  Co. 
14  Am.  &  Eng.  R.  Cas.  529,  02  Iowa  382.— 
IVilliams  V.  Baker,  17  IVall.  (C/.  S.)  144.— 
Reaffirming  Wolcott  v.  Des  Moines  N. 
&  R.  Co.,  5  Wall.  681 ;  Litchfield  v.  Dubuque 
&  P.  R.  Co.,  7  Wall.  270.— Followed  in 
Iowa  Homestead  Co.  v.  Des  Moines  N.  &  R. 
Co.,  17  Wall.  (U.  S.)  153;  United  States  i/. 
Des  Moines  N.  &  R.  Co.,  142  U.  S.   510; 
D.ivenpoit  v.   Sebring,  52    Iowa  364;   Du- 
buque &  S.  C.  R.  Co.  V.  Des  Moines  Valley 
K.  Co.,  54  Iowa  89. 

Under  the  act  of  August  8,  1846,  the  title 
of  tlie  Des  Moines  Navigation  &  Railroad 
Co.  to  lands  granted  to  Iowa  for  the  im- 
provement of  the  navigation  of  the  Des 
Moines  river  is  good  as  against  the  state 
and  other  railroad  companies,  under  what 
is  known  as  the  railroad  grant  of  1856,  and 
as  against  presumptive  rights  after  1855, 
under  the  act  of  1841.  IVolsey  v.  Chapman, 
loi  U.  5.755. — Followed  in  United  States 
7/.  Des  Moines  N.  &  R.  Co.,  142  U.  S.  510. 
Quoted  in  Wood  v.  Beach,  43  Kan.  427. 

Uy  a  contract  between  Iowa  and  the  Des 
Moines  Navigation  &  Railroad  Co.  of  1854 
the  state  was  to  convey  to  the  company  all 
lands  granted  it  for  the  improvement  of  the 
Des  Moines  river  and  not  sold  prior  to 
December  23,  1853.  The  contract  was  con- 
firmed by  a  joint  resolution  in  i8$8.  Held, 
that  the 'governor  was  authorized  to  convey 
land  to  the  company,  it  having  been  certified 
6  D.  R.  D.— 10. 


as  part  of  the  land  conveyed  to  the  state  for 
the  improvement  of  said  river.  Wolscy  v. 
Chapman,  101  U.  S.  755. 

The  Acts  of  Congress  of  August  8,  1S46, 
March  2,  1861,  and  July  12,  i8(  2,  granting 
title  to  lands  to  the  Des  Moints  Navigation 
&  Railway  Company,  and  to  tlie  state  of 
Iowa  for  the  purpose  of  aiding  in  the  im- 
provement of  navigation  of  the  Des  Moines 
river,  conveyed  a  valid  title  as  against  the 
United  States,  as  a  grant  /;;  prcesenti. 
United  States  v.  Des  Moines  N.  &•  R.  Co., 
142  I/.  S.  510,  12  Sup.  Ct.  Rep.  30S, — Fol- 
lowing Dubuque  &  P.  R.  Co.  v.  Litchfield, 
23  How.  66;  VVolcott  v.  Des  Moines  Co.,  5 
Wall.  681 ;  Williams  v.  Baker,  17  Wall.  144; 
Iowa  Homestead  Co.  v.  Valley  R.  Co.,  17 
Wall.  153;  Wolsey  v.  Chapman,  loi  U.  S. 
755  ;  Litchfield  v.  Webster  County,  loi  U.  S. 
773;  Dubuque  &  S.  C.  R.  Co.!/.  Des  Moines 
Valley  R.  Co.,  109  U.  S.  329;  Bullard  7'. 
Des  Mo  nes  &  Ft.  D.  R.  Co.,  122  U.  S. 
167. 

For  the  purpose  of  determining  the  ex- 
tent of  the  original  grant  of  lands  to  Iowa, 
under  the  act  of  August  8,  1846,  the  north- 
ern terminal  line  adopted  by  the  govern- 
ment is  one  drawn  at  right  angles  with  the 
general  direction  of  the  Des  Moines  river. 
i)es  Moines  N.  &■•  R.  Co.  v.  Cooper,  41  Iowa 

27S- 
2;i.  Act  of  May  16,  1856.— The  Act 

of  Congress  of  N^^y  15.  1856,  provided  that 
"a  quantity  of  land,  not  exceeding  120  sec- 
tions, and  included  within  a  continuous 
length  of  twenty  miles  of  the  road,  might 
be  sold ;  and  when  the  governor  of  the 
state  should  certify  to  the  secretary  of  the 
interior  that  any  continuous  twenty  miles 
of  road  were  completed,  then  another  like 
quantity  of  land  might  be  sold."  He/d, 
that  the  act  authorized  a  sale  of  120  sec- 
tions in  advance  of  the  construction  of  any 
part  of  the  road  ;  but  as  to  the  remainder,, 
sales  were  to  be  made  as  each  twenty  miles. 
was  completed.  Cedar  Rapids  &»  M.  R.  Co. 
V.  Courtright,  21  Wall.  {U.  S.)  310;  affirm- 
*"[?■  35  Iowa  386,  5  Am.  Ry.  Rep.  6j. 

There  was  no  restriction  upon  the  state 
as  to  the  .place  where  the  120  sections 
should  be  selected  along  the  line  of  the 
road,  except  that  they  should  be  included 
within  a  continuous  length  of  twenty  miles 
on  each  side;  and  they  might  be  selected 
from  lands  adjoining  the  eastern  end  of  the 
road,  or  the  western  end,  or  along  the  cen- 
tral portion.    Cedar  Rapids  &*  M.  R.  Co.  v. 


I  \4 


■\ 


■-1 


146 


LAND  GRANTS,  23. 


Cotirtright,  21   Wall.  {U.  S.)  l\o\  affirming 
35  Iowa  386,  5  Am.  Ky.  Rep.  drj. 

The  Iowa  Central  Air  Line  R.  Co.  men- 
tioned in  the  act  of  the  state  of  July  14, 
1856,  took  the  title  and  interests  of  the 
state  upon  the  terms',  conditions,  and  re- 
strictions expressed  in  the  act  of  congress, 
and  the  further  conditions  as  to  the  com- 
pletion of  the  road  imposed  by  the  state 
were  conditions  subsequent.  Cedar  Rapids 
&*  M.  R.  Co.  V.  Cour  trig  Jit,  21  Wall.  {U.S.) 
310;  affirming  35  Iowa  386,  5  Am.  Ry.  Rep. 

67. 

The  purchasers  of  the  first  120  sections 
took  a  good  title  to  the  property,  although 
no  part  of  the  road  was  constructed  at  the 
time.  Cedar  Rapids  &^  M.  R.  Co.  v.  Court- 
right,  21  Wall.  (U.  S.)  310;  affirming  35 
Io7t>a  386,  5  Am.  Ry.  Rep.  67. 

The  land  grant  by  the  act  of  May  1 5, 1856, 
was  a  grant  in  ptasenti,  attaching  to  the 
land  only  on  filing  of  the  map  of  the  definite 
location  of  the  roads,  although  the  bene- 
ficiary company  may  have  made  a  survey 
and  staked  out  the  line  of  its  road  before 
filing  such  map.  Sioux  City  &-  I.  F.  T.  L. 
&*  L.  Co.  V.  Griffey,  143  U.  S.  32,  12  Sup. 
Ct.  Rep.  362. — Following  Grinnell  v.  Chi- 
cago. R.  I.  &  P.  R.Co..  103  U.S.  739;  Kan- 
sas Pac.  R.  Co.  V.  Dunmeyer,  113  U.  S.  629, 
5  Sup.  Ct.  Rep.  566;  United  States  v. 
Missouri.  K.  &  T.  R.  Co.,  141  U.  S.  358, 
12  Sup.  Ct.  Rep.  13. 

Under  the  Act  jf  Congress  of  May  15, 1856, 
and  the  act  of  June  2,  1864,  extending  the 
grant  from  fifteen  to  twenty  miles  of  the 
line  of  tlie  proposed  road,  the  grant  was  in 
prasenti,  vesting  title  to  the  lands,  which 
was  not  forfeited  by  a  subsequent  change  of 
the  location  of  the  road  by  act  of  congress. 
But  even  if  such  change  worked  a  forfeiture 
it  could  not  be  taken  advantage  of  at  the 
suit  of  an  individual.  Grinnell  v.  Chicago, 
R.  I.  ^  P.  R.  Co.,  5  Am.  &•  Eng.  R.  Cas. 
447,  103  I/.  S.  739;  affirming  51  Iowa  476. — 
Approved  in  Sioux  City  &  I.  F.  T.  L.  &  L. 
Co.  V.  Griffey,  72  Iowa  505,  34  N.  W.  Rep. 
304.  FoLLOWKD  IN  St.  Paul  &  S.  C.  R. 
Co.  7>.  Winona  &  St.  P.  R.  Co.,  112  U.  S. 
720. 

Tlie  odd-numbered  sections  of  land  with- 
in live  miles  of  the  Dcs  Moines  river  in 
Iowa,  above  the  Raccoon  fork  and  below 
the  east  branch,  did  not  pass  to  the  state 
under  the  Act  of  Congress  of  May  15,  1856. 
Dubuque  <^  S.  C.  R.  Co.  v.  Des  Moines  Val- 
ley R.  Co.,  14  Am.  &»  Eng.  R.  Cas.  532,  109 


U.  S.  329,  3  Sup.  Ct.  Rep.  188 ;  affirming  54 
loica  89,  6  N.   W.  Rep.  1 57. 

The  state  selected  certain  indemnity  lands 
under  the  act  of  May  15,  1856,  and  the 
United  States  conveyed  title  to  the  railroad 
designated,  which  built  iis  road  according 
to  law.  Held,  that  such  action  on  the  part 
of  the  state  defeated  its  right  to  subse- 
quently claim  the  same  lands  under  the 
Swamp-land  Act  of  1850.  Hough  v.  Bu- 
chanan, 27  Fed.  Rep.  328. 

The  governor  of  Iowa  will  not  be  com- 
pelled by  mandamus  to  issue  any  certificate 
to  the  Cedar  Rapids  &  Missouri  River  K. 
Co.  which  will  enable  said  corporation  to 
acquire  any  title  to  any  of  the  lands  em- 
braced in  the  grant  of  lands  to  the  state  by 
act  of  May  15,  1856,  prior  to  a  compliance 
with  the  conditions  expressed  in  sections  (^ 
and  7  of  chapter  37  of  the  Laws  of  i860. 
State  ex  rel.  v.  Kirkwood,  14  Iffwa  162.— 
Distinguished  in  Courtright  v.  Cedar 
Rapids  &  M.  R.  R.  Co.,  35  Iowa  386.  Rec- 
onciled in  Cedar  Rapids  &  M.  R.  R.  Co. 
V.  Carroll  Co.,  41  Iowa  153. 

The  act  of  May  15,  1856,  having  reserved 
from  its  operation  all  lands  that  had  been 
before  appropriated  for  any  other  purpose 
whatsoever,  or  which  should  have  been 
granted  when  the  lines  of  said  road  should 
be  definitely  fixed,  did  not  disturb  or  affect 
the  title  to  the  swamp  and  overflowed  lands 
in  Fremont  and  Mills  counties  that  had 
been  confirmed  to  the  state  prior  to  the 
time  when  the  final  location  of  the  line  of 
the  Burlington  &  Missouri  River  railro.id 
was  definitely  determined.  The  act  of  the 
commissioner  of  the  general  land  office,  of 
March  2$.  1862,  certifying  these  lands  to 
the  Burlington  &  Missouri  railroad  com- 
pany, being  in  contravention  of  the  vested 
rights  of  the  counties,  was  ineffectual  and 
void,  and  the  same  may  be  inquired  into 
and  so  declared  by  the  court'.  Fremont  &• 
M.  Counties  v.  Hurling  ton  &*  At.  R.  R.  Co., 
22  loica  91.— Followed  in  Montgomery 
County  V.  Burlington  &  M.  R.  R.  Co.,  38 
Iowa  208;  American  Emigrant  Co.  v.  Chi- 
cago, R.  I.  &  P.  R.  Co.,  47  Iowa  515. 

In  an  action  to  recover  land  claimed  to 
have  passed  to  the  plaintiff's  grantor  under 
act  of  May  15,  1856,  as  deficiency  lands  se- 
lected witliin  fifteen-mile  limits — held,  that 
the  certificate  of  the  governor  that  the  plain- 
tiff's grantor  had  completed  its  road  in  com- 
pliance with  the  Act  of  Congress  of  June 
2,  1864,  §  8,  and  the  resolutions  of  March  3, 


LAND   GRANTS,  24-26. 


147 


■f?^i.': 


1865,  and  Feb.  10,  1866,  was  admissible. 
Chicago,  B.  6-  Q.  A'.  Co.  v.  Lewis,  53  /oTva 
loi,  4  ^V.  ^r.  AV/.  842.— FoLLOWEn  in 
Johnson  v.  Thornton.  54  Iowa  144.  See 
also  Dubuque  S.  W.  A\  Co.  v.  Cedar  Kapids 
il^  .1/.  K.  R.  Co.,  25  Am.  &•  Eng.  R.  Cas. 
9t.  66  Iowa  366.  23  A^.  W.  Rep.  758.— Re- 
viF.vviNfi  Smith  v.  Cedar  Rapids  &  M.  R. 

K.  Co.,  43  low'i  -39- 

24.  Act  of  May  20,  185«.-Plain- 
tiff  claims  title  to  the  land  in  question 
imder  Act  of  Congress  of  May  26,  1856, 
fjrantm^  to  the  state  lands  in  aid  of  the 
construction  of  certain  railroads,  and  the 
act  of  the  general  assembly  of  Iowa  ac- 
ceptinp:  the  trust  and  granting  said  lands  to 
the  Dubuque  &  Pacific  R.  Co.  But  the 
railroad  company  was  not  entitled  to  the 
land  upon  the  mere  survey  and  staking  out 
of  the  line  of  its  road,  nor  until  the  plat  of 
the  survey  was  filed  in  the  general  land 
office  at  Washington ;  and  until  it  became 
so  entitled  the  land  was  open  to  pre-emp- 
tion. .And  since,  before  such  plat  was  so 
tiled,  the  defendant  had  obtained  a  valid 
jjieemption  right  upon  which  he  after- 
wards procured  a  patent  from  the  govern- 
ment— held,  that  his  was  the  better  title. 
.s/<v/.r  City  Z"  I.  F.  T.  L.  <S-  L.  Co.  v.  Grif- 
fey, 72  Iowa  505.  34  N.  W.  Rep.  304.— Ap- 
proving Van  Wyck  v.  Knevals,  106  U.  S. 
360;  Kansas  Pac.  R.  Co.  v.  Dunmeyer,  113 
U.  S.  629;  Grinnell  v.  Chicago,  R.  I.  &  P. 
K.  Co.,  103  U.  S.  739.  Following  Chi- 
ca<,'o.  K.  I.  &  P.  R.  Co.  V.  Grinnell,  51  Iowa 
476;  Iowa  Falls  &  S.  C.  R.  Co.  v.  Beck,  67 
Iowa  421. 

25.  Act  of  July  12,  1802. -Under 
the  Act  of  Congress  of  1862,  granting  to 
the  state  of  Iowa  and  its  grantees  lands 
aloiij;  the  Des  Moines  river  from  Raccoon 
lork  to  the  northern  line  of  the  state,  the 
iiKJian  title  thereto  having  been  extin- 
>juished,  the  Des  Moines  Valley  railroad 
obtained  a  perfect  title  to  such  lands,  it 
being  the  grantee  of  the  state.  Dubuque 
&"  .v.  t".  A".  Co.  V.  Des  Moines  Valley  R.  Co., 
14  Am.  1^  Eng.  R.  Cas.  532,  109  U.  S.  329, 
3  Suf>.  Ct.  Rep.  188. 

Where  lands  are  granted  '  for  railroad 
purposes  "along  a  river,"  a  mistake  of 
officers  in  taking  a  branch  for  the  main 
river,  and  locating  lands  accordingly,  does 
not  change  the  grant.  It  will  take  effect 
according  to  its  terms.  Dubuque  &■*  S.  C. 
R.  Co.  V.  Des  Moines  Valley  R.  Co.,  14  Am. 


6-.  Etig.  R.  Cas.  532,  109  C/.  S.  329,  3  Sup. 
CI.  Rep.  188. 

A  claim  to  such  lands  based  on  settle- 
ments made  on  the  lands,  before  or  after 
the  passage  of  the  act  of  July  12,  1862, 
granting  them  to  the  state  for  railroad  and 
navigation  purposes,  is  invalid.  Bullard  v. 
Des  Moines  &*  Ft.  D.  R.  Co.,  122  U.  S.  167, 
7  Sup.  Ct.  Rep.  1149;  affirmitig  62  Iowa  382, 
17  N.  IV.  Rep.  609. — Followed  in  United 
States  V.  Des  Moines  N.  &  R.  Co.,  142  U. 
S.  510. 

The  act  of  July  12,  1862,  was  a  grant  in 
prasenti  of  the  alternate  sections  of  land 
lying  within  five  miles  of  the  Des  Moines 
river,  between  the  Raccoon  forks  and  the 
northern  boundary  of  the  state,  although 
the  grant  was  made  for  a  designated  pur- 
pose, and  the  lands  were  not  certified  by 
the  secretary  of  the  interior  until  April  24, 
1875.  And  said  lands  became  the  property 
of  the  Des  Moines  Valley  R.  Co.  under 
chapter  57,  Laws  of  i868,  and  became  tax- 
able, as  soon  as  the  said  company  had  com- 
plied with  the  conditions  of  said  act,  which 
was  January  i,  1871,  although  the  secretary 
of  the  interior  had  not  yet  certified  them  to 
the  state,  and  although  the  governor  refused 
to  execute  patents  therefor  to  said  company 
until  some  years  thereafter.  Whiteheads, 
riummer,  76  Iowa  1 8 1 ,  40  ^V.  W.  Rep.  709.— 
Followed  in  Cole  v.  Des  Moines  Valley 
R.  Co.,  76  Iowa  185,  40  N.  W.  Rep.  711. 

20.  Act  of  May  12,  1804.— The  Act 
of  Congress  of  May  12,  1864,  granted  cer- 
tain lands  to  the  state  to  aid  in  construct- 
ing railroads,  (i)  from  Sioux  City  on  the 
western  border  of  the  state  to  the  Minne- 
sota state  line,  and  (2)  from  a  point  on  such 
road  to  South  McGregor  on  the  eastern 
border  of  the  state,  with  right  to  claim  in- 
demnity lands  for  such  as  had  already  been 
disposed  of  within  the  ten-mile  limit  of 
the  roads.  A  part  of  the  former  road 
through  a  section  where  all  the  public  land 
had  been  granted  was  never  built.  Held, 
that  the  company  could  not  equitably  de- 
mand payment  for  more  than  the  number 
of  miles  actually  constructed.  United 
States  V.  Siou.v  City  <S-  St.  P.  R.  Co.,  43  Fed. 
Rep.  617. 

But  where  it  has  been  determined  in 
prior  litigation  that  the  former  company  is 
only  entitled  to  one  half  of  the  land 
granted  to  the  two,  it  is  entitled  to  indem- 
nity   lands   for    the   one    half   thus    lost. 


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LAND  GRANTS,  27. 


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United  States  v.  Sioux  City  6-  St.  P.  K.  Co., 
43  Fed.  Rep.  617. 

The  act  of  May  12,  1864,  did  not  specify 
any  beneficiary  corporation,  but  conferred 
the  lands  upon  the  slate  as  trustee,  charged 
with  the  duty  of  appropriating  them  for 
the  purpose  and  under  the  conditions 
sp2cified  in  tiie  act.  The  title  was  not  to 
pass  until  the  issuance  of  the  patents,  after 
they  had  been  earned  by  the  construction 
of  certain  specified  portions  of  the  road, 
and  prior  to  that  the  lands  could  not  be 
disposed  of  nor  encumbered.  Sioux  City 
&^  St.  P.  R.  Co.  V.  Osceola  County,  43 
loiva  318,  14  Am.  Ry.Rep.  450.— Followed 
IN  Sioux  City  &  St.  P.  R.  Co.  v.  Lyon 
County,  43  Iowa  683. 

By  that  act  the  United  States  granted  to 
the  state  certain  lands  in  said  state  to  aid 
in  the  construction  of  a  railroad  from  Sioux 
City  to  a  point  on  the  south  line  of  the  state 
of  Minnesota,  the  lands  to  be  subject  to  the 
disposal  of  the  legislature  for  that  purpose 
and  no  other.  By  chapter  134  of  the  Acts 
of  the  General  Assembly  of  1866  the  state 
accepted  said  grant,  and  conferred  the  lands 
granted  upon  a  certain  railroad,  subject  to 
the  conditir  s  named  in  the  grant,  which 
grant  was  accepted  by  the  railroad  on  Sep- 
tember 20,  1866.  Held,  that  the  grant  did 
not  operate  to  vest  the  legal  title  to  the 
lands  in  the  railroad  company,  and  that  the 
road  not  having  been  completed  September 
30,  1881,  all  of  said  lands  not  then  patented 
in  the  manner  aforesaid  nor  otherwise  dis- 
posed of  reverted  to  the  United  States. 
Bo7i>ne  V.  Bilsland,  83  Iowa  162,  49  N.  W. 
Rep.  161. 

By  that  act  the  United  States  granted  to 
Iowa,  to  aid  in  the  construction  of  railroads, 
every  alternate  section  of  land  designated 
by  odd  numbers  for  ten  sections  in  width 
on  each  side  of  said  roads.  Patents  for  one 
hundred  sections  of  said  lands  were  to  be 
issued  to  the  companies  whenever  the  gov- 
ernor should  certify  that  any  section  of  ten 
consecutive  miles  of  either  of  said  roads 
was  completed,  etc.  If  the  roads  were  not 
completed  within  ten  years  from  the  time 
of  their  acceptance  of  the  grant,  the  lands 
thereby  granted  and  not  patented  were  to 
revert  to  the  state  for  the  purpose  of  secur- 
ing the  completion  of  said  roads,  and  should 
the  state  fail  to  complete  said  roods  within 
five  years  thereafter  the  lands  undisposed 
of  were  to  revert  to  the  United  States. 
The  state  accepted  the  grant,  and  conferred 


the  lands  and  interests  granted  upon  the 
piaintifT ;  and  in  September,  1866,  the  plain- 
tiff accepted  the  grant  from  the  slate.  Held, 
that  the  grant  from  the  state  to  the  piaintifT 
was  necessarily  limited  to  tl.e  conditions 
imposed  by  the  act  of  congress,  and  that 
the  right  remained  in  the  state  to  resume 
control  of  all  lands  not  earned  by  the  plain- 
tiff within  ten  years  from  the  acceptance  of 
the  grant,  althougli  such  right  was  not 
specifically  reserved  by  the  state,  and  that 
the  Slate  had  properly  relinquished  its  title 
to  the  United  States.  Sioux  City  &•  St.  P. 
R.  Co.  V.  Countryman,  83  Iowa  172,  49  N. 
IV.  Rep.  72. 

The  plaintiff  having  failed  to  complete 
its  road  to  Sioux  City  as  provided  by  said 
act  of  congress,  and  until  completion  being 
entitled  only  to  land  for  each  completed 
section  of  ten  consecutive  miles  of  built 
road —/«'/</,  that  it  was  not  entitled  to  the 
lands  in  controversy  on  account  of  the  hist 
six  and  a  quarter  miles  of  road  constructed 
on  its  line  to  Le  Mars,  nor  for  the  part  of 
the  road  and  improvements  built  in  Sioux 
City.  Neither  could  the  plaintiff  claim 
said  lands  as  a  part  of  the  indemnity  lands, 
which  it  had  earned  by  the  construction  of 
the  fifty  miles  of  road,  upon  the  ground 
that  the  award  of  a  portion  of  said  lands  to 
the  Chicago,  Milwaukee  &  St.  Paul  Railway 
Company  was  a  sale  or  appropriation  within 
the  meaning  of  a  provision  of  said  act  of 
congress  that,  if  it  should  appear  that  the 
United  States  had  sold  any  part  of  the  lands 
granted  by  said  act,  or  that  they  had  been 
reserved  by  the  United  States  for  any  pur- 
pose whatever,  then  the  secretary  of  the  in- 
terior should  cause  to  be  selected  other 
lands  in  lieu  thereof.  Sioux  City  &*  St.  P. 
R.  Co.  v.  Countryman,  83  Iowa  172,  49  N. 
W.  Rep.  72. 

5.  Kansas. 

27.  In  general.— The  Acts  of  Congress 
of  March  3.  1863  (12  St.  at  L.  772);  July  i. 
1864  (13  St.  at  L.  339) ;  and  July  26,  1866  (14 
St.  at  L.  289),  granting  lands  to  the  state  for 
railroad  purposes,  are  to  be  construed  as  in 
pari  materia,  and  as  having  the  one  pur- 
pose of  building  a  single  road  from  Fort 
Riley,  down  the  Neosho  valley,  to  the 
southern  line  of  the  state,  and  not  as  dis- 
tinct grants  for  different  roads,  which  may 
come  in  conflict  in  the  claims  under  them 
in  regard  to  the  lands  granted.  Kansas 
City,  L.  <S-  S.  K.  R.  Co.  v.  Attorney-General, 


'V-i^'i: 


LAND   GRANTS,  28,  29. 


149 


29  ^Im.  &>  Eng.  R.  Cas,  467.  118  U.  5.  682, 
7  Sup.  Ct.  Rep.  66 ;  reversing  25  Fed.  Rep. 
243,  27  Kan.  I.— Distinguished  in  United 
States  V.  Missouri,  K.  &  T.  R.  Co.,  141  U. 

S.  358. 

The  junction  of  this  road  with  the  one 
from  Leavenworth  by  way  of  Lawrence,  in 
tlie  direction  of  Galveston  bay,  as  provided 
in  tlie  act  of  1863,  was  not  required  to  be  on 
tlic  very  crest  of  the  Neosho  valley,  as 
readied  by  the  latter  road,  but  at  a  con- 
venient point  for  such  crossing  in  the  nar- 
row valley  of  the  Neosho  river ;  and  as  this 
point  lias  been  adopted  by  the  companies 
buiidin'j  both  roads,  and  accepted  by  the 
ollkers  of  the  land  department  in  selecting 
indemnity  lands,  there  is  no  sufficient  rea- 
son to  be  found  in  the  point  of  junction  to 
vacate  the  certification  of  these  lands  to  the 
state  for  the  company  which  has  built  the 
road  and  received  the  patents  of  the  state,. 
Kansas  City,  L.  &*  S.  K.  R.  Co.  v.  Attorney- 
General,  2g  Ant.  (S-  Eng.  R.  Cas.  467,  118  £/. 
J).  682,  7  Sup.  Ct.  Rep.  66 ;  reversing  25  Fed. 
Rep.  243,  27  Kan.  i. 

Nor  is  there  any  other  sufficient  reason 
found  in  the  record  in  this  case  for  setting 
aside  the  evidences  of  title  to  these  lands 
issued  to  the  corporation  which  built  the  road 
within  the  time  required  by  law,  to  the  ap- 
proval of  the  officers  of  the  government, 
whose  primary  duty  it  was  to  certify  these 
lands,  and  who  did  so  within  the  scope  of 
their  [)owers.  Kansas  City,  L.  &*  S.  K.  R. 
Co.  V.  Attorney-Genera/,  29  Aw.  &•  Eng.  R. 
Cas.  467,  118  U.S.  682,  7  Sup.  Ct.  Rep.  66  ; 
iTiursing  25  Fed.  Rep.  243,  27  Kan.  1. 

Where  land  is  granted  to  a  state  to  aid  in 
constructing  railroads,  the  title  of  a  com- 
pany to  the  particular  land  attaches  when 
its  road  is  definitely  located,  and  where  a 
pre-einptor  goes  upon  the  land  after  the 
same  has  been  withdrawn  from  market,  the 
company  takes  the  paramount  title.  Atch- 
ison, T.  &*  S.  F.  R.  Co.  V.  Rockjuood,  5  Ant. 
<S-  Eng.  R.  Cas.  432,  25  Katt.  292.  Wood 
V.  AV<it//,  43  Kan.  427,  23  I\ic.  Rep.  649.— 
yrniiNoWolsey  7/.  Chapman,  101  U.S.  755. 

lis.  Act  of  Marcli  a,  18«a.— Under 
tlie  act  of  March  3,  1863  (12  St.  at  L.  772),  no 
title  could  be  acquired  in  any  specific  tracts 
as  indemnity  lands  until  actual  selection  ; 
and  no  selection  could  be  made  of  lands  ap- 
propriated by  congress  to  other  purposes 
prior  to  the  date  of  the  selection.  Kansas 
Pac.  A".  Co.  V.  Atchison,  T.  &*  S.  F.  R.  Co.,  26 
Am.  <£-  Fng.  R.  Cas.   506,  112  [/.  S.  414,  5 


Sup.  Ct.  Rep.  208.— Applied  in  Hastings 
&  D.  R.  Co.  V.  Whitney,  24  Am.  &  Eng.  R. 
Cas.  106,  34  Minn.  538.  Followed  in  St. 
Paul  &  S.  C.  R.  Co.  V.  Winona  &  St.  P.  R. 
Co.,  112  U.  S.  720;  Sioux  City  &  St.  P.  R. 
Co.  V.  Chicago,  M.  &  St.  P.  R.  Co.,  117  U. 
S.  406  ;  United  States  v.  Missouri,  K.  &  T. 
R.  Co.,  141  U.  S.  11^.— Atchison,  T.  <S»  S. 
F.  R.  Co.  v.  Rod-wood,  5  Ant.  &*  Eng.  R. 
Cas.  432,  25  Kan.  292. 

Under  the  act  of  March  3,  1863,  granting 
alternate  odd-numbered  sections,  the  even- 
numbered  sections  along  the  place  limits  of 
the  Leavenworth,  Lawrence  &  Ft.  Gibson 
railroad,  claiming  under  said  grant,  were  re- 
served to  the  United  States,  and  could  not 
be  claimed  by  the  Missouri,  Kansas  &  Texas 
railroad  under  the  grant  of  July  16,  1866, 
United  States  v.  Missouri,  K.  &^  T.  R.  Co. 
51  Ant.  &*  Eng,  R.  Cas.  305,  141  U.  S.  358 
12  Sup.  Ct.  Rep.  13.— Distinguishing  Kan 
sas  City,  L.   &   S.  K.   R.  Co.  v.  Attorney 
General,  118  U.  S.  682. 

Grants  made  by  the  acts  of  March  .3, 1863, 
and  July  26,  1866,  did  not  include  sucii  lands 
as  had  been  set  apart  and  reserved  for  the 
Osage  Indians  under  former  treaties. 
United  States  v.  Leavenworth,  L.  &•  G.  R. 
Co.,  I  McCrary  (U.  S.)  610;  affirmed  in  92 
U.  S.  733.— Followed  in  United  States  v. 
Missouri,  K.  &  T.  R.  Co.,  i  McCrary  624. 

And  the  United  States  may  maintain  a 
bill  in  equity  to  annul  patents  which  had 
been  issued  for  such  Indian  lands  under  the 
erroneous  belief  that  they  were  embraced 
in  the  grant.  United  States  v.  Leavettworth, 
L.  &•  G.  R.  Co.,  I  McCrary  (U.  S.)  610;  af- 
firmed in  92  U.  S.  733. 

PlaintifT  company  was  a  beneficiary  of  the 
land  granted  by  congress  March  3,  1863. 
Its  road  was  definitely  located  through  a 
certain  county  in  1870,  but  no  order  was 
made  by  the  secretary  of  the  interior  with- 
drawing the  lands  from  homestead  or  pre- 
emption until  during  the  following  year. 
Held,  that  the  title  to  the  land  passed  when 
a  location  of  the  road  was  definitely  fixed, 
and  a  settlement  made  thereon  after  that 
time,  under  the  homestead  exemption  laws, 
gave  no  title  to  the  party.  Atchison,  T.  &* 
S.  F,  R.  Co.  V.  Bobb,  5  Am.  6-  Eng.  R.  Cas. 
412,  24  Kan.  673. 

2».  Act  of  July  23,  18««.— The  Act 
of  Congress  of  July  23,  1866,  granting  cer- 
tain lands  to  the  state,  construed  to  be  a 
grant  in  prasenti,  and  to  vest  the  right  of 
way  in  the  railroads  from  the  date  of  the 


'  *'?'■• 


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150 


LAND  GRANTS,  30,  31. 


II 


l)assage  of  the  act,  and  not  nie  ely  from  the 
(kite  uf  the  location  of  the  road,  and  that 
subsequent  settlers  on  the  land  granted 
took  subject  to  this  right  of  way.  St.  Joseph 
^  D.  C.  A'.  Co.  V.  Bald-win.  2  Am.  &*  Eng. 
R.  Las.  jio,  5  Am.  &>  Eng.  A'.  Las.  408.  103 
U.  S.  426. — Following  Missouri,  K.  &  T. 
R.  Co.  V.  Kansas  Pac.  R.  Co.,  gj  U.  S.  497 ; 
Leavenworth,  L.  &  G.  R.  Co.  v.  Uniied 
States,  92  U.  S.  733.— APPROVED  in  Rider  v. 
Muilinjjton  &  M.  R.  R.  Co.,  10  Am.  &  Eng. 
K.  Cas.  688,  14  Neb.  120.  Distinguished 
IN  Red  River, &  L.  of  W.  R.  Co.  v.  Sture, 
32  Minn.  95;  Winona  &  St.  P.  R.  Co.  v. 
Barney,  1 13  U.  S.  618.  Followed  in  Bybee 
7'.  Oregon  &  C.  R.  Co.,  24  Am.  &  Eng.  R. 
Cas.  127,  26  Fed.  Rep.  586;  St.  Paul  &  P. 
R.  Co.  V.  Northern  Pac.  R.  Co.,  139  U.  S.  i. 
yuoTED  IN  Jackson  v.  Dines,  13  Colo.  90, 
21  Pac.  Rep.  918;  Union  Pac.  R.  Co.  v. 
Douglas  Co.,  31  Fed.  Rep.  540;  Northern 
Pac.  R.  Co.  V.  Majors,  5  Mont.  1 11 ;  Bybee 
V.  Oregon  &  C.  R.  Co.,  11  Sawy.  (U.  S.) 
479.  Reviewed  in  Radke  v.  Winona  &  St. 
P.  R.  Co.,  39  Minn.  262,  39  N.  W,  Rep.  624. 
—  Van  IVyck  v.  Knevals,  10  Am.  iS-  Eng. 
R.  Cas.  664,  106  C/.  S.  360,  I  Sup.  Ct.  Rep. 
336.— Approved  in  Sioux  City  &  I.  F.  T. 
L.  &  L.  Co.  V.  GrifJey,  72  Iowa  505,  34  N. 
W.  Rep.  304.  Followed  in  St.  Paul  &  S. 
C.  R.  Co.  V.  Winona  &  St.  P.  R.  Co.,  112  U. 
S.  720. 

Within  the  meaning  of  the  first  section  of 
the  Act  of  Congress  of  July  23,  1866,  grant- 
ing lands  to  the  state  for  the  use  and  bene- 
fit of  the  St.  Joseph  &  Denver  City  rail- 
road company  "the  line  of  the  route  of  the 
road  "  was  "definitely  fixed"  when  a  map 
of  said  location  adopted  by  the  directors  of 
the  company  was  received  by,  and  filed 
with,  the  secretary  of  the  interior,  as  re- 
quired by  law.  Knevals  v.  Hyde,  i  Mc- 
Crary  ( U.  S.)  402. 

And  after  the  road  was  definitely  located 
the  equitable  title  to  the  lands  granted 
vested  in  the  company,  and  a  patent  sub- 
sequently issued  to  a  homesteader  con- 
veyed no  title.  Kne-oals  v.  Hyde,  i  Mc- 
Crary  (U.  S.)  402.  St.  Joseph  &-  D.  R.  Co. 
V.  Baldwin,  7  A'eb.  247.  Van  IVyck  v. 
Knevals,  10  Am.  <S-  Eng.  R.  Cas.  664,  106  U. 
S.  360,  I  Sup.  Ct.  Rep.  336. 

»0.  Act  of  July  20,  1800.  — Under 
the  Act  of  Congress  of  July  26,  1866,  grant- 
ing lands  to  the  state  to  aid  ir  he  cmi- 
st  ruction  of  the  southern  branch  of  the 
Uninn  Pacific  R.  Co.,  subsequently  know 


as  the  Missouri,  Kansas  &  Texas  R.  Co.,  the 
latter  company  obtained  a  right  of  way, 
amonij  other  lands,  across  townships  16  and 
36,  the  original  claim  of  the  state  to  school 
lands  in  said  townships  having  been  re- 
jected by  congress  and  abandoned  by  the 
state.  Missouri,  K.  &*  T.  R.  Co.  v.  Roberts, 
152  U.  S.  114,  14  Sup.  Ct.  Rep.  496. — Quot- 
ing Leavenworth,  L.  &  G.  R.  Co.  v.  United 
States,  92  U.  S.  733. 

6.  Louisiana.    Michigan. 

31.  Louisiana.— By  the  act  of  June  3, 
1856,  congress  granted  certain  lands  to  the 
state  to  aid  in  the  construction  of  railroads. 
Held,  that  no  conveyance  to  a  company  in 
violation  of  the  terms  of  the  grant  could  vest 
title  to  such  lands.  Vicksburg,  S.  &*  P.  R, 
Co.  V.  Sleeve,  41  La,  Ann.  896,  6  So.  Rep. 

725- 

Under  the  above  grant  it  was  a  condition 
precedent  to  a  conveyance  that  any  of  the 
sections  of  the  road  should  first  be  con- 
structed in  sections  of  twenty  consecutive 
miles  before  the  road  could  obtain  title  to 
any  portion  of  the  land  coterminous  with 
the  part  constructed ;  but  where  the  legis- 
lature of  the  state  authorizes  a  road  to 
mortgage  said  lands  to  secure  the  com- 
pany's bonds,  and  the  mortgage  is  exe- 
cuted, the  state  cannot,  by  subsequent  legis- 
lation, abridge  the  rights  of  third  parties 
acquired  under  the  mortgage.  Vicksburg, 
S.  &*  P.  R.  Co.  V.  Sledge,  41  La.  Ann.  896, 
6  So.  Rep.  725. 

The  government  of  the  United  States  is 
the  only  claimant  that  can  contest  the  rigiit 
to  forfeit  said  lands  for  the  non-perform- 
ance of  conditions  subsequent,  required  by 
the  act  of  congress,  as  the  stale  is  estopped 
by  its  own  act  in  smthorizing  the  mortgaj^'f. 
Vicksburg,  S.  £~.  P.  R.  Co.  v.  Sledge,  41  La. 
Ann.  896,  6  So.  Rep.  725. 

The  government  of  the  United  States  not 
having  asserted  by  legislative  act  or  judicial 
construction  the  forfeiture,  the  apparent 
legal  title  was  in  the  railroad  company  ac- 
quiring rights  under  the  foreclosure  of  said 
mortgage.  Vicksburg,  S.  &*  P.  R.  Co.  v. 
Sledge,  41  Lit.  Ann.  896,  6  So.  Rep.  725. 

The  granted  lands  having  been  witii- 
drawn  from  sale  and  settlement,  and  passed 
into  the  domain  of  private  property— not 
subject  to  entry  under  the  United  States 
government  homestead  laws;  and  defend- 
ant not  having  a  title  from  any  source 
whatever,  must  be  treated  as  a  trespasser. 


LAND   GRANTS,  32. 


151 


and  not  entitled  to  retover  the  value  of  im- 
provements in  excess  of  tlie  annual  revenues 
of  tiie  land.  Afower  v.  Kemp,  46  Am,  <S>« 
Eng.  R.  Cas.  480,  42  La.  Ann,  1007,  8  Ho, 
Rep.  830. 

The  state  has  had  at  no  time  separate, 
distinct  interests  of  her  own  under  the 
grant  of  June  3,  1856.  Under  that  statute 
itacted  simply  asan  instrumentality  through 
which  to  carry  out  a  particular  purpose  of 
congress;  a  means  to  a  special  end,  and 
that  end  one  exclusively  in  the  interests  of 
the  United  States.  State  v.  Vicksbtirg,  S. 
&*  F,  R.  Co,,  44  La,  Ann.  981,  11  So.  Rep. 
865. 

Ill  conveying  at  once  ail  the  lands  em- 
braced in  the  trust  under  the  grant  of  June 
3,  1856,  to  the  Vicksburg,  S.  &  T.  R.  Co., 
instead  of  holding  the  legal  tiMe  in  herself, 
selling  limited  quantities  as  the  road  pro- 
gressed, and  turning  the  proceeds  from 
time  to  time  over  to  the  constructing  com- 
pany as  it  carried  on  the  work,  the  state 
marie  a  radical  departure  from  the  terms  of 
its  agency;  still  its  action  was  not  abso- 
lutely null  and  void,  but  only  voidable. 
State  V.  Vicksburg,  S,  <&-  P,  R.  Co,,  44  La, 
Ann,  981,  II  So.  Rep,  865. 

At  the  end  of  ten  years  the  powers  of  the 
state  ceased  by  exhaustion  through  its  own 
acts;  and  by  limitation  of  time  under  the 
express  terms  of  the  act  of  congress  the 
state  iiad  no  power  or  authority  in  1879  to 
retrace  its  steps,  undo  what  it  had  done, 
;iiid  attempt  to  restore  the  status  quo  by  a 
simple  legislative  act  of  forfeiture,  and  by 
repealing  its  act  of  transfer  of  1857  to  the 
company.  State  v.  Vicksburg,  S,  iSf*  P  R. 
Co.,  44  La,  Ann.  981,  11  So.  Rep.  865. 

Inasmuch  as  by  the  granting  of  plaintiff's 
prayer  the  legal  title  of  the  lands  would  be 
taken  from  the  company  in  whom  the  state 
herself  has  placed  them,  without  vesting 
thereby  the  absolute  ownership  of  the  same 
in  the  state  (the  state's  authority  to  dispose 
of  them  in  any  way  having  ceased  in  i86t)\ 
and  inasmuch  as  by  granting  plaintiff's 
prayer,  should  the  United  States  refuse 
to  forfeit  the  grant,  a  very  large  quan- 
tity of  land  would,  through  the  instru- 
mentality of  this  court,  be  placed  hors  tie 
commereefor  an  indefinite  time — the  United 
States  refusing  to  receive  them,  and  the 
state  under  its  qualified  title  absolutely 
prohibited  from  making  any  use  of  them,  it 
would  be  worse  than  a  vain  act  for  the 
court  to  adjudge   these  lands  to  be  the 


property  of  the  state  "  for  the  objects  and 
purposes  of  the  act  of  congress,"  which  is 
the  decree  sought.  State  v.  I'icksbur^'^.  S, 
&*  P.  R,  Co.,  44  La.  Ann.  981,  11  So,  Rep. 
865. 

The  state  herself  is  estopped  from  claim- 
ing that  the  company  did  not  have  such  a 
property  in  the  land  conveyed  to  it  as 
would  permit  the  mortgage  given  by  it  to 
its  bondholders  to  originally  attach  to  those 
lands,  anu  from  claiming  that  the  mortgage 
so  given  by  the  company  under  the  author- 
ity of  her  own  legislative  act  was  null  and 
void.  State  v.  Vicksburj,r,  S.  6-  P.  R.  Co., 
44  La.  Ann.  981,  11  So.  Rep.  86$. 

32. 3Iicliig:aii.— Congress  granted,  June 
3,  1856,  certain  lar:ds  to  the  state  of  Michi- 
gan to  aid  in  building  railroads.  The  state 
accepted  the  giant,  and  provided  that  they 
should  go  to  a  certain  road,  to  be  sold  by 
the  company  upon  the  completion  of  each 
twenty  miles,  to  be  applied  to  the  construc- 
tion of  the  road  and  to  no  other  purpose. 
The  company  was  unable  to  sell  tlie  lands 
as  thus  earned,  and  issued  bonds,  secured 
by  a  mortgage  of  the  lands,  and  from  the 
proceeds  of  the  bonds  built  the  road.  Held, 
these  lands  were  liable  to  state  taxation, 
though  they  were  not  while  held  by  the  state 
as  trustee  of  the  United  States.  Tucker  v. 
Ferguson,  22  Wall,  (U,  S,)  527. 

The  act  of  June  3,  1856,  constituted  a 
present  grant  of  the  lands  included  within 
its  terms,  devoted  to  a  particular  purpose, 
and  no  further  conveyance  by  the  federal 
government  was  contemplated.  Johnson  v. 
Fallon,  28  A/ic/i,  379. 

The  grant  conveyed  the  title  to  the  land 
to  the  state,  but  it  was  a  floating  title  and 
did  not  attach  to  any  particular  lands  until 
the  proper  action  should  be  had  to  entitle 
sf)me  beneficiary  to  select  and  convey  them, 
Johnson  v.  Fallou  28  Mich.  379.  She  par  d 
V.  Xorthwestern  L.  Ins,  Co.,  40  Fed,  Rep. 

341. 

But  the  right  of  selection  was  in  the  rail- 
road company  and  not  in  the  state  after  the 
lands  had  been  earned,  and  the  sale  by  the 
company  of  any  specific  parcel  of  land  ee- 
ceeding  the  quantity  earned  and  lying  with- 
in the  limits  specified  in  the  grant  was  to 
that  extent  an  efTectual  selection,  and  the 
board  of  control  provided  for  by  statute 
could  not  qualify  the  right  of  selection  nor 
subject  it  to  any  conditions  not  performed 
or  waived.    Johnson  v.  Fallou,  28  Mith  379. 

No  patent  from  the  United  States  or  from 


T-^m 


152 


LAND  GRANTS,  32. 


if 

1 
i 

i 

Uk 

'i! 


the  state  was  requisite  to  vest  the  title  in  the  ■ 
railroarj  company,  independent  of  tiie  legis- 
lative grants.    Johnson  v.  Ballou,  28  Mic/i. 

379-     . 

Where  the  title  of  the  Indians  and  iheir 
ii}>ht  of  occupation  of  certain  lands  had 
l)cen  fully  extinguished,  they  passed  under 
the  act  of  June  3,  1856,  notwithstanding 
that  they  were  held  by  the  United  States 
in  trust  to  sell  them  for  the  benefit  of  tlie 
Indians.  S/tepard  v.  Northwestern  L.  Ins. 
Co.,  40  /•></.  A'ep.  341. 

The  act  of  June  3,  1856,  was  accepted  by 
tiie  state,  and  the  riglH.  to  construct  one 
ri'iid  from  Grand  Haven  to  Owosso  was 
awarded,  and  the  right  to  construct  from 
the  latter  place  10  Flint  and  thence  to  Port 
Huron  was  awarded  to  a  different  company. 
Ne/d,  that  the  grants  were  distinct,  and  the 
design  was  to  provide  for  two  distinct  lines 
to  intersect  ai  Owosso,  and  to  aid  each  by 
a  grant  of  the  lands  lying  within  the  pie- 
scribed  distance  to  it;  and  the  conveyance 
to  the  latter  company  for  a  construction  of 
a  portion  of  the  line  east  of  Owosso  of 
lands  lying  west  of  that  place,  and  opposite 
a  portion  of  the  other  line,  was  invalid. 
Bvjies  V.  Haywood,  35  Mich.  241. 

It  is  immaterial  that  the  charter  of  the 
company  authorized  it  to  build  a  road  from 
Owosso  westerly  to  Grand  Haven,  for  there 
must  be  something  more  than  a  paper  line; 
and  while  it  remains  on  paper  only,  with  no 
intention  on  the  part  of  the  company  to 
actually  build  the  road,  there  is  nothing  to 
which  the  grant  can  be  applied.  Bowes  v. 
Haywood,  35  Mich.  241. 

The  state,  by  Mich.  Act  126  of  1857,  set 
the  lands  granted  apart  for  the  benefit  of 
certain  designated  roads,  on  condition  that 
the  beneficiaries  should  accept  them  sub- 
ject to  the  terms  of  the  act.  Held,  in  a 
case  in  which  the  acceptance  was  qualified, 
that  the  company  acquired  no  title,  and 
that  a  bill  would  not  lie  to  quiet  a  title  to 
the  lands  obtained  by  a  levy  of  execution 
against  the  beneficiary  intended  by  the  stat- 
ute. Kiigers  V.  Port  Huron  &>  L.  M.  R.  Co., 
10  Am.  &>  Eng.  K.  Cas.  635,  45  Mich.  460,  8 
N.  \V.  Rep.  46. 

Railroad  companies  which  accepted  the 
congressional  grant  acquired  rights  which 
could  not  be  destroyed  except  by  their  own 
neglect.  Rogers  v.  Port  Huron  <S-  L.  M. 
R.  Co.,  ID  Am.  Sf  Eng.  R.  Cas.  635, 45  Mich. 
460.  8  .V.   W.  Rep.  46. 

Plaintiff  company  filed  a  bill  to  set  aside  a 


mortgage  held  by  defendant  as  a  cloud  on  its 
title  to  certain  land  claimed  under  the  act 
of  June  3,  1856,  and  the  lower  court  granted 
the  relief  prayed  for,  which  decree  on  ap- 
peal wiis  reversed,  but  on  a  re4iearing  was 
affirmed  by  a  majority  of  the  court  on  the 
facts  of  the  case.  Jackson,  L.  &*  S.  R.  Co. 
V.  Davison.  65  Mich.  416,  14  West.  Rep.  65, 
32  A^   W.  Rep.  726. 

The  effect  of  the  act  of  June  3,  1856,  to 
aid  in  the  construction  of  a  railroad  from 
Amboy,  via  Hillsdale  and  Lansing,  to  some 
point  on  or  near  Traverse  bay,  and  of  the 
acceptance  of  the  grant  by  tlie  state,  and  of 
act  No.  126,  Laws  of  1857,  granting  such 
lands  to  the  .'\mboy,  Lansing  &  Traverse 
Bay  R.  Co.,  has  been  settled  by  this  court, 
so  far,  at  legist,  as  to  determine  that  the 
title  of  the  United  States  to  the  lands  was 
divested,  and  tliat,  when  earned,  the  rail- 
road company  might  select  any  land  within 
the  prescribed  limit  of  six  miles,  if  not  fif- 
teen miles.  Tillotson  v.  Webber,  96  Mich. 
144,  55  N.  W.  Rep.  837. 

The  appointment  by  the  governor  of  the 
agent  nominated  by  the  railroad  company 
to  select  its  lands,  the  filing  of  the  list  of 
lands  so  selected  with  the  commissioner  of 
the  state  land  office,  the  certification  of  the 
same  by  the  commissioner  to  the  secretary 
of  the  interior,  and  the  approval  by  that 
oflicer  of  such  selection  are,  in  the  absence 
of  any  proof  to  the  contrary,  prima  Jacie 
evidence  of  the  compliance  by  the  railroad 
company  with  the  statutory  requirements 
to  the  satisfaction  of  the  federal  and  state 
governments.  Tillotson  v.  Webber,  96  Mich. 
144,  55  iV.  W.  Rep.  837. 

The  act  did  not  expressly  require  the 
preservation  or  filing  with  the  state  or  fed- 
eral departments  of  any  selection  or  report 
of  the  agent  appointed  to  select  lands  for 
the  company,  and  the  lands  described  in 
the  list  filed  by  the  company  with  the  state 
land  commissioner,  certified  by  him  to  be  a 
true  and  correct  list  of  the  lands  selected 
by  the  agent  and  approved  by  the  secretary 
of  the  interior,  may  be  assumed  to  have 
been  properly  selected.  Tillotson  v.  Web- 
ber, 96  Mich.  144,  55  A^.  W.  Rep.  837. 

The  certificate  of  the  commissioner  of 
the  general  land  office  that  an  annexed 
paper  is  a  copy  of  a  list  of  lands  on  file  in 
his  office,  so  far  as  the  same  applies  to  cer- 
tain descriptions  contained  therein,  makes 
the  paper  admissible  in  an  action  of  eject- 
ment involving  the  particular  descriptions 


LAND   GRANTS,  33-35. 


163 


certified  to,  although  not  authenticated  ac- 
cording to  our  statutes.  Tillotson  v.  Welh 
ber,  96  Mich.  144-55  ^-  ^-  ^'^P-  837. 

7.  Minnesota. 

33.  In  general.— A  deed  by  the  gov- 
ernor to  a  railroad  company,  conveying  lands 
which  the  state  held  for  railroad  purposes 
under  'and  grants  from  the  general  govern- 
ment, in  advance  of  the  actual  construction 
of  the  road,  is  not  void,  but  voidable.  St. 
Paul  *&-  iV.  P.  A'.  Co.  V.  St.  Paul,  M.  6-  M. 
R.  Co.,  57  Fat.  Rep.  272. 

But  as  the  state  held  such  lands  only  in 
trust  to  secure  the  construction  of  railroads, 
and  tiie  governor  erroneously  conveyed 
lands,  it  is  within  the  power  of  the  legis- 
lature, after  the  lapse  of  several  years  and 
a  failure  to  build  the  road,  to  declare  such 
lands  forfeited,  and  to  grant  them  anew  to 
another  company  for  railroad  purposes.  St. 
Paul  Sf  N.  P.  K.  Co.  v.  St.  Paul,  M.  6-  M. 
R.  Co.,  57  Fed.  Rep.  272. 

And  a  mortgage  by  a  company  to  which 
lands  have  been  granted  in  advance  of  the 
construction  of  its  road,  of  all  "  lands  ap- 
pertaining to  the  roads,"  does  not  include 
the  lands  erroneously  conveyed  so  as  to 
prevent  such  forfeiture.  St.  Paul  &  N.  P. 
R.  Co.  v.  St.  Paul.  M.  &•  Af.  Ji.  Co.,  $7  Fed. 
Rep.  272. 

34.  Act  of  June  20,  1854.— On  June 
39,  1854,  congress  passed  an  act  entitled 
"An  act  to  aid  the  territory  of  Minnesota 
in  the  construction  of  a  railroad  therein." 
Among  othet  provisions  the  act  provided 
that  "  the  said  lands  hereby  granted  shall  be 
subject  to  the  disposal  of  any  legislature 
thereof  for  the  purpose  aforesaid,  and  no 
other."  Held,  that  the  territory  had  no 
such  beneficial  interest  in  the  land  as  would 
prevent  congress  from  repealing  the  act  be- 
fore any  railroad  was  constructed,  as  was 
done  by  tiie  subsequent  act  of  August  4, 
1854.  Rice  V.  Minnesota  &•  N.  IV.  R.  Co., 
\  RLuk  {U.  S.)  358.— Criticised  in  Nash 
V.  Sullivan,  10  Am.  &  Eng.  R.  Cas.  552,  29 
Minn.  206.  Dkstinguished  in  Northern 
Pac.  R.  Co.  V.  Majors,  5  Mont.  iii.  Fol- 
lowed in  St.  Paul  &  P.  R.  Co.  V.  Northern 
Pac.  R.  Co.,  139  U.  S.  I.  Reconciled  in 
Sciiulenberg  v.  Harriman,  21  Wall.  (U.  S.) 
44- 

Where  a  period  was  fixed  by  an  act  for 
the  completion  of  the  contemplated  im- 
provement, and  if  the  work  was  not  com- 
pleted within  that  time,  then  the  power  of 


the  territory  to  dispose  of  the  lands  was  to 
cease,  such  part  of  the  lands  as  had  been 
appropriated  at  the  expiration  of  that  pe- 
riod, in  execution  of  the  work,  was  to  be 
unaffected  by  that  provision  ;  but  the  resi- 
due would  cease  to  be  held  by  the  territory 
for  the  use  and  purpose  for  which  the  lands 
had  been  granted.  Rice  v.  Minnesota  fi«*  A'. 
W.  R.  Co.,  I  Black  {U.  S.)  358.— Explained 
IN  Denny  v.  Dodson,  13  Sawy.  (U.  S.)  68. 

Tlie  Act  of  Congress  of  June  29,  1854, 
granting  certain  lands  to  the  territory  of 
Minnesota  to  aid  in  the  construction  of  a 
certain  railroad,  vested  in  the  territory  a 
present  estate  in  the  lands,  subject  to  a 
condition  for  their  revesting  in  the  United 
States.  United  States  v.  Minnesota  &*  N, 
IV.  R.  Co.,  I  Minn.  127  (Gil.  103). 

35.  Act  of  March  3,  1857.— The 
Act  of  Congress  of  March  3,  1857,  granting 
certain  lands  to  the  territory  of  Minnesota 
for  the  purpose  of  aiding  in  the  construction 
of  several  lines  of  railroad  between  difTerent 
points  in  the  territory,  only  authorized  for 
each  road,  in  advance  of  its  construction,  a 
sale  of  one  hundred  and  twenty  sections.  No 
further  disposition  of  the  land  along  either 
road  was  allowed,  except  as  the  road  was 
completed  in  divisions  of  twenty  miles. 
Chamberlain  v.  St.  Paul  &•  S.  C.  /v'.  Co.,  92 
U.  S.  299.  Farnsfworth  v.  Minnesota  &*  P. 
R.  Co.,  92  U.  S.  49.— Quoted  in  Swann  v. 
Lindsey,  14  Am.  &  Eng.  R.  Cas.  504,70  Ala. 
507;  Jackson,  L.  &  S.  R.  Co.  v.  Davison, 
65  Mich.  416,  14  West.  Rep.  65,  37  N.  W. 
Rep.  537. 

The  indemnity  clause  of  the  act  of  March 
3,  1857,  covers  losses  from  the  grant  by 
sales  and  pre-emptions  prior  to  the  date  of 
the  act,  as  well  as  losses  from  the  same 
causes  between  the  date  of  the  act  and  the 
final  location  of  the  road.  IVinona  &•  St. 
P.  R.  Co.  v.  Barney,  26  Am.  &•  Eng.  R.  Cas. 
513,  113  U.S.  618.  5  Sup.  Ct.  Rep.  606.— 
DiSTiNGULSHiNG  St.  Joseph  &  D.  C.  R.  Co. 
V.  Baldwin,  103  U.  S.  426;  Leavenworth,  L. 
&  G.  R.  Co.  V.  United  States,  92  U.  S.  733. 
—Quoted  in  Wisconsin  C.  R.  Co.  v.  Price 
County,  64  Wis.  579. 

The  act  of  March  3,  1857,  §  6,  provided 
"  that  in  case  any  lands  on  the  line  of  said 
roads  or  branches  are  within  any  Indian 
territory  no  title  to  the  same  shall  accrue 
*  *  *  until  the  Indian  title  to  the  same 
shall  have  been  extinguished."  Held,  that 
as  soon  as  the  Indian  title  was  extinguished, 
and  the  line  of  road  located,  the  title  to 


-1^   • 


% 
'4' 


9^  I 


154 


LAND   GRANTS,  36. 


•I 


these  lands  vested  in  t'  e  state  for  the  bene- 
fit (jf  the  roads.  St.  .  nil,  Af.  &•  M.  A\  Co. 
V.  /'/it/ps,  137  i/.  -S'.  52«.  II  Sup.  a.  Rep. 
168.— [•"oi.LovviNO  Buuz  %>.  Noriherii  Pac, 
R.  Co..  119  U.  S.  55. 

The  land  jjrant  made  by  the  act  of  March 
3,  1857,  embraced  botli  the  lands  found 
within  the  limits  of  the  state  as  afterwards 
organized,  and  also  all  lands  that  were 
found  in  the  former  territorial  limits,  but 
cut  ofT  into  the  territory  of  Dakota.  St. 
Paul,  M.  &•  M.  a:  Co.  v.  J'/ieips,  137  C/.  S. 
528,  II  Sup.  Ct,  Rep.  168;  reversing  26  Fed. 
Rfp.  569. 

The  act  of  March  3,  1857,  was  in  itself  a 
fjraiit  conveying  to  the  state  the  legal  title 
of  the  lands  found  to  fall  within  its  opera- 
tion. The  certification  of  lands  to  the  state 
by  the  secretary  of  the  interior  under  the 
law  of  1854  did  not  affect  tiie  legal  title  of 
such  lands.  IVeel-s  v.  Uridgman,  41  Minn. 
352.  43  A^.   IV.  Rep.  81. 

Only  upon  the  definite  location  of  the  lines 
of  railroad  referred  to  in  the  grant,  by  filing 
maps  thereof  in  the  department  of  the  inte- 
rior, did  the  grant  become  applicable  to 
particular  lands  so  as  to  prevent  the  acqui- 
sition of  vested  rights  by  pre-emption  which 
would  prevail  notwithstanding  the  grant. 
Weeks  \.'  Bridgfnan,  41  Minn.  352,  43  jV. 
IV.  Rep.  81. 

By  implication  from  the  terms  of  the  act, 
lands  to  vhich  the  right  of  pre  emption 
should  attach  before  such  definite  location 
were  excepted  from  it.  Weeks  v.  liridg- 
mun,  41  Minn.  352,  43  ^V.  W.  Rep.  81. 

Fioth  companies  claim  under  the  grant  by 
the  act  of  March  3,  1857,  entitled  "An  act 
making  a  grant  of  land  to  the  territory  of 
Minnesota,  in  alternate  sections,  to  aid  in 
the  construction  of  certain  railroads  in  said 
territory,  and  granting  public  lands  in  alter- 
nate sections  to  the  state  of  Alabama,  to  aid 
ill  the  construction  of  certain  railroads  in 
said  state,' andthe  defendant companyclaims 
part  of  the  lands  under  a  congressional 
grant  of  1864.  The  line  of  defendant  was  lo- 
cated through  the  territory  where  the  lands  in 
controversy  lie  in  1859;  the  line  of  plaintiff 
in  1868.  No  valid  selection  of  lands  for  in- 
demnity purposes  was  made  till  1872,  when 
defendant  first  selected  the  lands  in  contro- 
versy for  such  purposes,  aud  they  were  cer- 
tified by  the  secretary  of  the  interior  to  the 
state  for  defendant's  line.  Held,  that  the 
lands  within  the  six-mile  limits  of  plaintiff, 
and  between  the  six-  and  fifteen-mile  lim- 


its of  the  defendant,  belong  to  plaintifT. 
The  lands  lying  between  plaintiff's  six-  and 
fifteen-mile  limits,  and  between  defendant's 
fifteen-  and  twenty-mile  limits,  belong  to  the 
plaintiff.  The  lands  lying  between  the  six- 
and  fifteen-mile  limits  of  each  company 
belong  to  both  companies  in  common. 
Winona  &^  St.  P.  R.  Co.  v.  St.  Paul  &-  S.  C. 
R.  Co.,  27  Minn.  128,  6  A'.  W.  Rep.  461. 

:i«.  Act  of  Mnreh  »,  180;S The  act 

of  March  3,  1865,  enlarged  the  grant  made 
by  the  act  of  March  3,  1857,  from  six  sec- 
tions per  mile  to  ten  sections,  and  the  limits 
within  which  the  indemnity  lands  were  to 
be  selected  to  twenty  sections;  and  further 
provided  that  any  "  lands  which  may  have 
been  granted  to  the  territory  or  state  of 
Minnesota  for  the  purpose  of  aiding  in  tlie 
construction  of  any  railroad,  which  lands 
may  be  located  within  the  limits  of  this  ex- 
tension of  said  grant  or  grants,  shall  be 
deducted  from  full  quantity  of  the  lands 
hereby  granted."  Prior  to  act  of  1865  a 
grant  had  been  made  to  a  railroad  of  lands 
located  within  the  limits  covered  by  said 
extension  grant.  Held:  (i)  that  the  grant  by 
the  act  of  1857  was  a  grant  of  land  in  place 
and  not  of  quantity ;  (2)  that  the  enlarge- 
ment of  the  grant  by  act  of  1865  did  not 
change  its  nature  jas  to  the  six  sections  orig- 
inally granted ;  {3)  that  as  to  remaining  four 
sections  the  grant  was  one  of  quantity,  but 
to  be  selected  along  and  opposite  the  com- 
pleted road  ;  (4)  that  where  the  earlier  grant 
to  aid  in  the  construction  of  the  Minnesota 
&  Cedar  Valley  R.  interferes  with  the  ex- 
tension grant  to  the  plaintiff  in  error,  the 
earlier  grant  takes  the  land,  and  the  exten- 
sion must  be  abandoned.  Winona  <S-  St.  P. 
R.  Co.  V.  Harney,  26  Am.  &*  Eng.  R.  Cos. 
5 1 3,  II 3  £/.  5.  6 1 8,  5  Sup.  Ct. Rep. 606.  Nash 
V.  Sullivan,  10  Am.  &*  Eng.  R.  Cas.  552,  29 
Minn.  206,  1 2  A'.  H''.  Rep.  698. 

The  subsequent  act  of  congress,  entitled 
"An  act  authorizing  the  St.  Paul  &  Pacific 
R.  Co.  to  change  its  line  in  consideration  of 
a  relinquishment  of  lands,"  passed  March  3, 
1871,  did  not  require  a  release  to  the  United 
States  of  the  entire  land  between  Crow 
Wing  and  St.  Vincent,  but  onWof  the  lands 
along  the  abandoned  line  between  Crow 
Wing  and  Otter  Tail  or  Rush  Lake,  the 
lands  along  the  line  between  the  latter  point 
to  St.  Vincent  remaining  unaffected  by  said 
act  of  congress  or  the  release  required  there- 
by. Nas/i  V.  Sullivan.  10  Atn.  &^  Eng.  A'. 
Cas.  552,  29  Minn.  206,  12  JV.  W.  Rep.  698. 


LAND   GRANTS,  37-40. 


155 


The  act  of  March  3,  1865.  §  3,  providing 
tiiai  any  lands  granted  to  Minnesota  by  the 
act  of  March  3,  1857,  which  might  be  lo- 
catcfi  within  the  limits  of  the  extension  made 
by  said  act  of  1865  to  the  original  grant 
made  by  said  act  of  1857  should  be  de- 
ducted from  the  full  quantity  of  lands 
granted  by  the  act  of  1865,  applies  to 
"granted  lands"  of  tlie  prior  grant  falling 
witiiin  the  six-mile  limit,  and  not  to  possible 
indemnity  lands  which  might  be  subse- 
quently acquired.  Barney  v.  Winona  &* 
.V/.  /'.  A\  Co.,  26  Am.  (So  h'tig:  A'.  Cas.  522, 
\i7  I/.  S.  228.  6  Sup.  a.  Rep.  654.— QtroTEU 
IN  Northern  Pac.  R.  Co.  v.  Sanders, 47  Fed. 
Kep,  604. 

The  term  "any  lands  which  may  have 
been  granted  to  the  territory  or  state  of 
Minnesota,"  as  used  in  the  Act  of  Congress 
of  March  3,  1865,  §  3,  includes  all  land  the 
title  to  which  had  passed  to  the  territory  or 
state,  whether  these  lands  were  in  place  or 
indemnity  lands ;  and  the  word  "  granted  " 
has  the  broad,  rather  than  the  narrow,  sig- 
nification. Barney  v.  Winona  &•  S/.  P.  K. 
Co.,  24  Fed.  Rep.  889;  re7>ersed  in  117  (7.  S. 
2:8,  6  Sup.  Ct.  Rep.  654.— Following  St. 
Paul  &  S.  C.  R.  Co.  V.  Winona  &  St.  P.  R. 
Co.,  112  U.  S.  720,  5  Sup.  Ct.  Rei).  334; 
Winona  &  St.  P.  R.  Co.  v.  Barney,  113  U. 
S.  618,  5  Sup.  Ct.  Rep.  606. 

Tlic  act  of  March  3,  1857,  and  the  act  of 
March  3,  1865,  were  grants  in  prersenti.TA- 
tacliing  to  the  lands  from  the  date  of  the 
grants,  when  located,  both  as  to  the  limits 
of  the  .state,  and  the  territorial  limits  in 
1857.  Sf.  Paul,  M.  6f  M.  R.  Co.  v.  Phcips, 
137  U.  .v.  528,  II  Sup.  Ct.  Rep.  168. 

The  second  section  of  the  act  of  March  3, 
1865,  entitled  "An  act  extending  the  time 
for  the  completion  of  certain  railroads  in 
the  stiites  of  Minnesota  and  Iowa,  and  for 
other  purposes,"  relates  only  to  the  lands 
jiranted  bv  that  act.  Winona  6-  St.  P.  R. 
Co.  V.  .SV.  Paul  &•  S.  C.  R.  Co.,  27  A/inn. 
128,  6  A',  ir.  Rep.  461. 

.'J7.  Act  of  July  4,  180«.— The  act  of 
July  4, 1S66,  granted  lands  within  certain  lim- 
its, with  the  exception  of  those  to  which  it 
"shall "appear,  when  the  line  of  the  road 
should  be  definitely  located,  "  that  the  right 
of  |)re-emption  or  homestead  settlement  has 
attached."  Ne/d,  that  lands  of  which  there  is 
a  homestead  entry  of  record  are  within  the 
exception.  Hastings  &*  D.  R.  Co.  v.  Whit- 
ney, 24  Am.  <S-  Etig.  R.  Cas.  106,  34  Minn, 
538,  27  A'.  W.  Rep.  69.— Ahplving  United 


States  V.  Burlington  &  M.  R.  R.  Co.,  98  U. 
S.  334;  Kansas  Pac.  R.  Co.  v,  Atchison,  T. 
&S.  F.  R.  Co..  112  U.  S.  414. 

38.  Act  of  July  13,  180«.— A  fed- 
eral grant  of  lands  in  place  to  aid  in  the 
construction  of  a  railroad  is  a  grant  in  prtr- 
senti,  in  the  nature  of  a  float,  which  acquires 
precision  by  the  definite  location  of  the 
route  of  the  railroad,  and  when,  thereafter 
the  lands  arc  indicated  by  the  secretary  of 
the  interior,  by  the  certification  prescribed 
by  act  of  July  13,  1866,  §  3,  such  act  of  indi- 
cation and  certification  relates  to  the  date 
of  the  original  grant,  and  the  title  of  the 
state  accrues  as  of  that  date.  And  when  the 
state  conveys  to  the  railroad  company,  the 
latter  takes  title  as  of  the  date  of  the  orig> 
inal  grant,  which  takes  precedence  of  a  pre- 
emption title  resting  upon  a  settlement  and 
entry  made  after  the  grant.  Winona  &*  St. 
P.  R.  Co.'v.  Randall,  10  Am.  6«»  Eng.  R.  Cas. 
558,  29  Minn.  283.  13  A'.  W.  Rep.  127.  — ft  E- 
viEWED  IN  Radke  v.  Winona  &  St.  P.  R. 
Co.,  39  Minn.  262,  39  N.  W.  Rep.  624. 

Such  certificate  of  the  secretary  of  the 
interior  has  the  force  and  effect  of  a  patent, 
and  its  effect  in  passing  the  title  to  particu- 
lar lands  cannot  be  questioned  by  one  not 
interested.  Minnesota  L.  &-  I.  Co.  v.  Davis, 
40  Minn.  455,  42  A^.  W.  Rep.  299. 

3».  Act  of  Mnrvh  1,  1877.— Under 
Minn.  Act  of  March  i,  1877,  declaring  cer- 
tain public  lands,  which  had  been  conveyed 
to  railroad  companies,  forfeited,  where  such 
lands  are  conveyed  to  a  second  company,  it 
may  maintain  an  action  to  recover  them  or 
quiet  its  title  only  so  fast  as  its  title  accrued 
to  the  land  by  constructing  its  road;  hence 
the  statute  of  limitations  would  only  run 
from  that  date.  St.  Paul  6-  A^.  P.  R.  Co.  v. 
.SV.  Paul.  M.  6f  M.  R.  Co.,  57  Fed.  Rep.  272, 

8.  Missouri. 

40.  Actof  Jun<!  10,  1852.- Under 
the  act  of  June  10,  1852,  the  location  of 
the  land  is  not  complete  until  the  company 
has  caused  a  map  thereof  to  be  recorded  in 
the  ofl^ce  where  deeds  are  recorded,  in  each 
county  where  any  part  of  the  land  is  situ- 
ate. Baker  v.  Gee,  i  Wall.  (U.  S.)  333.— 
Followed  in  Pacific  R.  Co.  v.  McCombs, 
39  Mo.  329. — Pacific  R.  Co.  v.  McComhs.  39 
Mo.  329. —  Following  Baker  v.  Gee,  i 
Wall.  333:  Hannibal  &  St.  J.  R.  Co.  v. 
Moore,  37  Mo.  338.— Dlstincuished  in 
Funkhouserv.  Peck,  67  Mo.  19. 

Whatever  may  be  the  nature  of  the  title 


% 


\-      n. 


156 


LAND   GRANTS,  41,42. 


acquired  by  the  state  by  virtue  of  the  act 
of  June  lo,  1852— whether  the  state  ac- 
quired the  fee-simple  title  to  the  lauds 
clothed  in  u  political  trust  for  the  execu- 
tion of  which  the  faith  of  the  state  was 
pledged  by  the  acceptance  of  the  j^rant,  or 
whether  the  act  of  congress  created  an 
estate  upon  condition  sul-o^quent— a  mere 
trespasser  cannot  defend  against  a  grantee 
of  the  stale  by  invoking  a  supposed  right 
o(  the  United  Slates  to  enter  for  condition 
broken.     Kennett  v.  IHummer,  28  Mo,  143. 

A  certificate  of  location  under  tlie  Act  of 
Congress  of  February  17,  1815,  for  the  re- 
lief of  sufferers  by  earthquakes  in  New 
Madrid,  located  in  1818,  and  survey  made 
and  returned  to  the  surveyor-general  in 
1820,  but  not  returned  to  the  recorder  of 
land,  titles  until  1859,  constituted  a  valid 
location  of  the  land  covered  by  the  survey, 
and  brought  tiie  land  within  the  exceptions 
of  the  act  of  June  10,  1852.  Pacific  R.  Co. 
v.  McCombs,  39  Mo.  329. 

Under  the  act  of  June  10,  1852,  and  the 
act  of  the  state  of  December  25,  1852, 
transferring  such  grant  to  the  Pacific  rail- 
road, the  agent  of  the  company,  in  estimat- 
ing the  quantity  of  lands  within  the  excep- 
tions of  the  granting  act,  returned  sections 
8  and  18.  T.  45  N.  R..  7  E.,  as  included 
within  the  exceptions,  and  selected  lands 
outside  of  the  limit  of  six  miles  to  make 
up  the  quantity  of  lands  to  which  the  com- 
pany was  entitled  under  the  grants,  lists  of 
wliich  were  certified  to  the  company. 
Heldy  that  by  this  action  the  company  was 
estopped  from  asserting  that  said  sections 
were  not  included  within  the  exceptions  of 
the  act,  although  subsequent  corrections  of 
the  certified  lists  made  at  the  general  land 
office  showed  that  the  company  had  not  re- 
ceived all  the  lands  to  which  it  was  entitled. 
Pacific  li.  Co.  V.  McCombs,  39  Mo.  329. 

The  act  of  June  10,  1852,  was  a  grant  in 

prascnti,  and  passed  the  title  to  the  state 

immediately  upon  the  definite  location  of 

the  road.      Wr^ht  v.  Gish,  94  Mo.  1 10,  6  5. 

U '.  Rep.  704. 

The  entry  of  a  portion  of  such  lands  in 
the  public  land  office,  after  the  tile  passed 
from  the  government,  under  the  Act  of 
Congress  of  June  10,  1852,  was  invalid,  and 
a  patent  granted  thereto  void.  Wright  v. 
Gisli,  94  Mo.  1 10,  6  S.  W.  Rep.  704 

VVIiere  it  appeared  from  the  tract  book 
at  the  local  land  office  that  certain  lands 
comprised  within  such  grant  were  posted  as 


having  been  entered  in  1839,  but  the  rec- 
ords in  the  general  land  office  showed  that 
such  posting  was  a  mistake,  and  that  the 
lands  so  posted  as  entered  had,  in  fact, 
never  been  entered,  but  that  ihe  title  to 
them  was  in  the  United  Stales  at  the 
tints  of  the  passage  of  the  act  of  June  10, 
1852,  they  were  not  »xce|)ted  from  the 
operation  of  the  grant  of  said  act.  Wr/j^'/tt 
V.  Gisli,  94  Mo.  1 10,  6  S.  W.  Jup.  704. 

41.  Act  of  Fvbniiiry  »,  IHn.'t.-The 
act  rif  February  9,  1853,  provided  that  the 
lands  should  revert  to  the  United  States  if 
the  road  was  not  completed  in  ten  years. 
The  road  not  being  completed  within  that 
time,  an  act  was  passed  in  1866  declaring 
that  the  former  act,  "  with  all  the  provisions 
therein  made,  be  and  the  same  is  hereby 
revived  and  extended  for  the  term  of  tin 
years."  Heiii,  that  the  latter  act  was  not 
such  a  legislative  declaration  of  forfeiture 
as  would  divest  the  slate  of  all  title  granted 
by  the  former  act;  but  it  was  rather  the  in- 
tention to  waive  the  right  of  forfeiture. 
St.  Louis,  1.  M.  &*  S.  R.  Co.  v.  McGee,  10 
Am.  &*  Eng.  R.  Cas.  649,  75  A/o.  522. 

The  above  act  of  1853  operated  as  a 
grant  in  prctsenti,  and  the  statute  of  limita- 
tions began  to  run  in  favor  of  an  occupant 
of  the  lands,  and  against  one  claiming 
under  the  grant  from  the  date  of  the  for- 
mer's entry.  St.  Louis,  I.  M.  &*  S.  R.  Co, 
V.  McGee,  10  Am.  &>  Ktig.  R.  Cas.  649,  75 
Mo.  522. 

And  the  running  of  the  statute  of  limita- 
tions as  against  one  claiming  lands  under 
the  above  act  of  1853  is  not  suspended  by 
Mo.  Gen.  St.  1865,  p.  746,  §  7.  St.  Ij)uis,  /. 
M.  €f  S.  R.  C\  v.  .McGee,  10  Am.  &*  Eng. 
R.  Cas.  649,  75  Mo.  522. 

42.  Act  of  AiigiiHt  3,  1854.— Under 
the  act  of  June  10,  1852,  and  the  state 
statute  of  September  20,  1852,  designating 
the  road,  no  title  to  the  land  passed  to  ilic 
company  until  it  had  filed  a  map  of  the  lo- 
cation of  its  road  with  the  secretary  of 
state,  and  in  the  office  of  the  recorder  of 
deeds  in  the  respective  counties  where  the 
land  might  be  situated,  as  required  by  the 
state  statute.  Hannibal  6-  St.  J.  R.  Co.  \. 
Smith,  41  Mo.  310. 

The  above  act  of  congress  made  no 
provision  for  any  kind  of  documentary 
evidence  to  be  issued  by  the  general  land 
oflBce  by  which  the  location,  boundaries, 
and  identity  of  the  particular  tracts  granted 
within  the  six-mile  limit  were  to  be  desic- 


44. 

of  Jim( 
May  5. 
passed 
nated 
upon  tl 
and  the 
preclsic 
Schulet, 

44;  afi 
Rice  V. 
(U.  S.) 


LAND   GRANTS,  4:i,  44. 


157 


luiicd  and  proved  ;  the  public  sectional  sur- 
vuys  sliowinjj  the  cvcn-iiunibcrcd  sections 
within  the  six-mile  limit,  alihuu^'h  admissi- 
lilc  ill  evidence,  are  insutHcieiil  fur  that 
|iiii|)i)si'.  The  certified  list  iiiider  the  Act 
ol  Con^Kess  of  August  3,  1854,  is  evidence 
ID  siiow  wiiat  lands  passed  by  the  maiit; 
l)iit  if  the  lands  embraced  in  such  lists  are 
mil  uf  the  character  contemplated  by  the 
a' t  of  congress,  or  are  not  such  as  were 
intended  to  be  granted  thereby,  then  such 
cjrtilied  lists  can  have  no  effect  as  evi- 
dence. Hannibal  &*  St.  J.  A.  Co,  v.  Smitfi, 
^i  .l/c.  310.— yuoTKU  IN  Fiinkhouser  v. 
l\ck,  67  Mo.  19.  Kkviewkd  in  Clarkson 
;■.  Buchanan,  53  Mo.  563 ;  Campbell  v. 
Wortman,  58  Mo.  258;  Palmer  v.  Uoorii,  80 
Mo.  99. 

4:1.  Act  ot'3Iarcli  3,  1857.-Under 
tile  act  of  1852  and  the  act  of  1854,  entitled 
"  .'\n  act  to  vest  in  the  several  states  and 
territories  the  title  in  fee  of  the  lands  which 
have  been  or  may  be  certified  to  them,"  a 
descriptive  list  of  lands  accruing  to  the 
state  under  the  former  act,  containing  the 
land  in  contrc  iirsy,  made  out  and  certified 
on  the  9th  of  Feb.,  1854,  by  the  commis-, 
sioiicr  of  the  general  land  office,  and  ap- 
proved by  the  secretary  of  the  interior, 
and  again  certified  in  May,  1856,  by  said 
commissioner,  in  conformity  with  the  latter 
act,  confers  upon  the  state  a  title  to  the  land 
ill  ( oiitroversy,  unless  it  be  swamp  land  or 

I       ed  in  some  other  grant;  such  land 

w.is  not  vacant  or  unappropriated  within 
the  mtraning  of  the  act  of  March  3,  1857, 
entiil'  "An  act  to  confirm  to  the  several 
.stales  .lie  swamp  and  overflowed  lands  se- 
lected under  the  act  of  Sept.  28,  1850,"  etc. 
lunkhouser  v.  Peck,  67  Mo.  19.— Di.STiN- 
(;t;isiiiN(;  Pacific  R.  Co.  v.  McCombs,  39 
Mo.  329.  yuoTiN'  Hannibal  &  St.  J.  R. 
Co.  V.  Smith,  41  Mu.  310. 

9.   Wisconsin. 

44.  Act  of  June  »,  185G.— Theact 
of  June  3,  1856,  and  section  i  of  the  act  of 
May  5,  1864,  are  ,'rants  in  prasenti,  and 
passed  the  title  to  the  odd  sections  desig- 
nated to  be  afterwards  located ;  the  fixing 
upon  the  route  made  their  location  certain, 
and  the  title,  previously  imperfect,  acquired 
precision  and  became  attached  to  the  land. 
Schulenberg  v.  Harriman,  2 1  Wall.  ( U.  S.) 
44;  affirming  2  Dill.  398.— Reconciling 
Rice  V.  Minnesou  &  N.  W.  R.  Co.,  1  Black 
(U.  S.)  358.— Followed  in  Missouri,  K.  & 


T.  R.  Co.  V.  Kansas  Pac.  R.  Co.,  97  U.  S. 
491  ;  St.  Paul  1%  I'.  R.  Co.  7'.  Norilurn  Pac. 
R.  Co.,  139  U.  S.  1;  Nash  ;■.  Sullivan,  ic 
Am.  &  ling.  K.  Cas.  552.  29  Minn.  2of). 
yi'oii.i)  IN  Swann  ?'.  Lindsey,  14  Am.  >S: 
Kiig.  U.  Cas.  504,  70  Ala.  507;  Swann  ''. 
Larmore,  14  Am.  &  Eng.  R.  Cas.  519,  70 
Ala.  555. 

The  lands  granted  have  not  reverted  to 
the  United  States,  although  the  road  was 
not  constructed  within  thc|)ericMl  prescriin-d, 
no  action  having  been  taken,  cither  by  leg- 
islative or  judicial  proceeding,  to  enforce 
the  forfeiture  of  the  grants.  Sc/iiilin/>eig  v. 
Harriman,  21  Wall,  (U.S.)  44;  affirming  2 
Dill.  398. 

Tiie  provision  in  the  act  of  1S56  that  all 
lands  remaining  unsold  after  ten  years  siiall 
revert  to  the  United  States  if  the  road  be 
not  then  completed,  is  a  condition  subse- 
quent, being  in  effect  a  provisic^n  that  the 
grant,  to  the  extent  of  the  lands  unsold, 
shall  be  void  if  the  work  designated  be  not 
done  within  that  period.  Schulenherg  v. 
Harriman,  21  Wall.  (f/.  i'.)44;  affirming  2 
Dill.  398. 

No  one  can  take  advantage  of  the  non- 
performance of  the  conditions  subsequent 
annexed  to  an  estate  in  fee  but  the  grantor 
or  his  heirs  or  successors,  and,  if  they  do 
not  see  fit  to  assert  their  rigiit  to  enforce  a 
forfeiture  on  that  ground,  the  title  remains 
unimpaired  in  the  grantee.  The  rule  equally 
obtains  where  the  grant  upon  the  condition 
proceeds  from  the  government.  Scliulenherg 
V.  Harriman,  21  Wall.  (U.  S.)  44 ;  affirming 
2  Dill.  398.— DlSTlNGUiSHEU  IN  Mower  7'. 
Kemp,  42  La.  Ann.  1007. 

Where  the  title  to  land  remains  in  the 
state,  timber  cut  upon  the  land  belongs  to 
the  state.  While  the  timber  is  standing  it 
constitutes  a  part  of  the  realty ;  being  sev- 
ered from  the  soil,  its  character  is  changed  ; 
it  becomes  personalty,  but  its  title  is  not 
affected ;  it  continues,  as  previously,  the 
property  of  the  owner  of  the  land,  and  can 
be  pursued  wiierever  it  is  carried.  All  the 
remedies  arc  open  to  the  owner  which  the 
law  affords  in  other  cases  of  the  wrongful 
removal  or  conversion  of  personal  property. 
Sc/iulcnficrg  v.  Harriman,  2i  Ifall.  ((/.  S.) 
44  ;  affirming  2  Dill.  398. 

Where  logs,  cut  from  such  lands  of  the 
state  without  license,  have  been  intermin- 
gled with  the  logs  cut  from  other  lands  so 
as  not  to  be  distinguishable,  the  state  is  en- 
titled, under  the  law  of  Minnesota,  to  re- 


■i 


'     'I 


1 


4^' 


rn 


158 


LAND   GRANTS,  45,40. 


■s 


II 
if  :* 


l>levy  an  equal  amount  from  the  wliole 
mass.  The  remedy  alforded  by  the  law  of 
Minnesota  in  such  case  is  held  to  be' just  in 
its  operation,  and  less  severe  than  that  which 
the  common  law  would  authorize.  Schii/en- 
birj;  V.  Harriman,  21  Wall.  {U.  S.)  44;  n/- 
firmini^  2  Dill.  398. 

45.  Act  of  May  5,  1804.— The  act  of 
May  5,  1864,  provided  for  an  indemnity  for 
lands  sol('  or  pre-empted  wiihin  the  yraiit 
wiien  the  road  should  be  located.  Held, 
that  the  indemnity  included  both  lands  dis- 
posed of  by  the  government  between  the 
date  of  the  act  and  the  location  of  the  road 
and  prior  to  the  date  of  the  act.  Wisconsin 
C.  K.  Co.  v.  J'riie  County,  41  Am.  t5^  ICng. 
a:  Ciis.  669,  133  [/.  S.  496,  10  Sitp.  CI.  Rep. 
3^1. _guo  IK  J  IN  Northern  Pac.  K.  Co.  v. 
Cannon,  46  Fed.  Kep.  237. 

Tlie  Act  of  Congress  of  June   3,   1856, 
granted  to  the  state  for  railroad  aid  pur- 
poses alternate   sections  for  six  miles  on 
eaci\  side  of  the  proposed  road,  or  in  lieu 
thereof,    if    previously    sold,    land    to    be 
selected  within  fifteen  miles  of  such  road. 
October  26,  1856,  the  commissioner  of  the 
land  office  reserved  from  sale  all  land  with- 
in   such  fifteen-mile    limit.     The   Act  of 
Congress  of  May  5,  1864  (13  St.  at  L.  66), 
made  a  similar  grant  for  similar  purposes, 
but   excepted   from   the    grant  "  all  lands 
reserved  to  the  United  States  *  ♦  ♦  in  any 
n'.anner  or  for  any  purpose."    Held,  that 
the    land    reserved    by  the   said    commis- 
sioner's order  was  "  reserved  to  the  United 
States"  within  the  meaning  of  this  act,  and 
did   not  pass  by  the  second  grant,  which 
overlapped  the  first.     Wisconsin  C.  R.  Co. 
V.  Forsythe,  43  Fed.  Rep.  867.— Followed 
IN  Osborne  v.  Wisconsin  C.  R.  Co.,  43  Fed. 
Rep.  824. 

Where  the  act  provided  that  it  should  be 
lawful  for  agents  appointed  by  the  railway 
company  entitled  to  the  grant  to  select, 
subject  to  the  approval  of  the  secretary  of 
the  interior,  from  the  public  lands  of  the 
United  States  "deficiency"  lands  within 
certain  defined  indemnity  limits— //*/</,  that 
tiic  issuance  of  a  patent  by  the  United 
States  directly  to  the  railway  company  for 
lands  so  selected  by  an  agent  of  the  com- 
pany was  evidence  that  the  company  liad 
complied  with  all  the  conditions  of  the 
grant,  and  was  entitled  to  the  lands  de- 
scribed therein,  and  that  the  title  passed 
from  the  United  States  at  the  date  thereof. 
Alusser  v.  McRae,  44  Minn,  343,  46  A'.  W. 


Rep.  (iTy,fornur  appeal  1%  Minn.  409,  38 
N.  W.  Rep.  103. 

And  where  it  appeared  that  after  certain 
deficiency  lands  h  i<l  been  >  ^.ned  by  the 
railway  company,  and  had  been  so  selected 
and  duly  certified  to  the  general  land  office, 
but  prior  to  the  issuance  of  the  patent  tim- 
ber had  been  wrongfully  cut  and  re.noved 
therefrom  by  trespassers— //<•/</,  that  the 
title  acquired  by  the  patent  must  be  held  to 
relate  back  to  the  selection  of  the  land,  so 
as  to  save  to  purchasers  to  whom  the  lands 
had  been  granted  by  the  company,  before 
the  trespasses,  a  right  of  action  for  the  tim- 
ber wronf,!ully  removed  from  the  land,  or 
its  value.  Musser  v.  McRae,  44  Minn.  343, 
46  X.  W.  Re/.  673. 

III.  FEDEBAL  GRANTS  TO  BAILB0AS8. 

I.  In  General. 

4G.  AscertuiiiiiiK:  quantity  of  land 
included  in  ifrant.— Tlie  quantity  of 
lands  granted  to  railroads  is  measured  by 
the  number  of  miles  actually  built.  So 
where  a  grant  was  made,  but  before  the 
road  was  built  the  act  was  amended  so  as 
to  allow  the  road  to  be  built  by  a  shorter 
route,  the  amount  of  land  is  measured  by 
the  shorter  route.  Cedar  Rapids  &•  M. 
R.  R.  Co.  v.  Herring,  14  Am.  &*  Eng.  R.  Cas. 
537,  1 10  U.  S.  27,  3  Sti*-  CI.  Rep.  485. 

A  grant  of  land  to  ;•  .lilroad,  by  an  act  of 
congress,  of  alternate  sections,  without  pre- 
scribing any  lateral  limit,  construed  to  mean 
that  the  grantee  could  go  off  tlie  line  of  the 
road  only  in  case,  at  the  time  when  its 
rights  vested,  there  was  not  sufficient  land 
on  its  line  unappropriated  to  satisfy  the 
grant.  Wood  v.  Burlin-^ton  &*  M.  R.  R. 
Co.,  10  Am.  &»  Eng.  R.  Cas.  611,  104  U.  S. 

329- 
A  provision  of  the  Pacific  railroads'  land 

grant  was  of  "  every  alternate  section  of 
public  land  designated  by  odd  numbers  to 
the  amount  of  five  iilternate  sections  \wr 
mile  on  each  side  of  said  road  on  the  line 
thereon."  Subsequently  this  was  raised  to 
ten  sections.  Held,  that  the  grant  was  not 
limited  t,o  lands  situate  at  right  angles  to 
the  general  line  of  the  railroad,  where  it 
was  constructed  with  such  curves  as  to  de- 
feat the  full  grant  per  mile  if  such  a  rule 
s'aould  be  applied.  United  Stales  v.  Union 
Pac.  R.  Co.,  37  Fed.  Rep.  551. 

The  certificate  of  the  commissioner  of  the 
general  land  office  showing  that  certain 
lands  were  contained   in  the  li»t  of  lands 


LAND   GRANTS,  47-49. 


159 


covered  by  a  railroad  grant,  and  the  certifi- 
cate of  the  secretary  of  the  interior  approv- 
ing buch  list,  are  competent  and  sufficient 
evidence  that  tb*:  lands  described  passed  to 
the  railroad  company  under  tlie  grant. 
Johnson  v.  Thornton,  54  Iowa  144,  6  A^.  IV. 
Rep.  165.— Following  Chicago,  B.  &  y.  R. 
Co.  V.  Lewis.  53  Iowa  101. 

47.  Exceptiou  of  iiiiiierul  lauds-- 
Wliat  lands  so  deemed.  —  Under  the 
acts  of  congress  granting  lands  to  the  Union 
Pacific,  Central  Pacific,  and  Western  Pacific 
railroads  no  patents  could  issue  for  min- 
eral lands,  such  being  excepted  out  of  the 
grant.  Western  Pac.  R.  Co.  v.  United 
States,  108  U.  S.  510,  2  Sup.  Ct.  Rep.  802. 

In  such  case  one  taking  a  patent  for  land, 
knowing  it  to  be  mineral  land,  cannot  be 
considered  an  innocent  purchaser.  West- 
ern Pac.  R.  Co.  V.  United  States,  108  U.  S. 
510.  2Sitp.  Ct.  Rep.  802. 

Where  a  grant  to  a  railroad  company  cx- 
ce|)ts  mineral  land,  the  term  "  mineral 
land "  means  land  known  to  be  mineral 
land  when  the  grant  took  efiect,  or  which 
there  was  then  satisfactory  reason  to  believe 
to  be  such.  Francocur  v.  Newhouse,  14 
Sawy.  (U.  S.)  600.  Northern  Pac.  K,  Co. 
V.  Harden,  51  Am.  &*  Eng.  R.  Cas.  236,  46 
Fed.  Rep.  592.— Following  St.  Paul  &  P. 
K.  Co.  V.  Northern  Pac.  K.  Co..  139  U.  S. 
5,  II  Sup.  Ct.  Rep.  389.— Api'Liki)  in 
Northern  Pac.  R.  Co.  v.  Wright,  51  Fed. 
Rep.  68. 

Thr>  time  when  lands  must  be  known  to 
be  "  mineral,"  in  order  to  exclude  them 
from  a  grant  of  land  made  to  a  railroad 
company,  is  the  date  when  the  line  of  the 
railroad  becomes  definitely  fixed,  and  a  plat 
thereof  is  filed  in  the  general  land  ofTice. 
(Knowles,  J .,  dissenting.)  Northern  Pac.  R. 
Co.  V.  Burden,  51  Am.  &*  Etig.  R.  Cas.  236, 
46  Fed.  Rep.  592. 

4H.  and  what  not.— The  Act  of 

Congress  of  July  i,  1862,  §  2,  granting  a 
right  of  way  over  the  public  lands  to  the 
Central  Pacific  R.  Co.,  extends  to  and  cov- 
ers all  public  lands  whether  mineral  or  not. 
Doran  v.  Central  Pac.  R.  Co.,  24  Cat.  245. — 
Rk.kk.rrei)  to  in  Hamilton  7/.  Spokane  & 
P.  K.  Co.,  2  Idaho  898. 

Section  3  of  the  above  act.  excepting 
mineral  lands  from  the  provisions  of  the 
gr.int,  only  applies  to  the  sections  granted 
and  not  to  the  right  of  way.  Doran  '-.  ('en' 
tral  Pac.  R.  Co.,  24  Cai.  245. 

The  mere  l&ci  that  land  contains  coppr^-, 


gold-,  and  silver-bearing  quartz  does  not 
make  it  mineral  lands  within  the  meaning 
of  the  Act  of  Congress  of  July  i,  1862,  as 
amended  July  2,  1864,  granting  lands  to  aid 
in  the  construction  of  the  Central  Pacific 
railroad.  The  statute  only  excepts  lands 
which  are  valuable  for  mining  purposes. 
Merrill  v.  Dixon,  15  Nev.  401.  Alford  v. 
Barnum,  45  Cal.  482. 

411.  Ueservatioii  of  huuH  held  un- 
der Mexieun  g:rant.s. — Lands  within  the 
boundary  of  a  Mexican  or  Spanish  f-ant, 
which  are  sub  jtidice  at  the  time  tho  jcre- 
tary  of  the  interior  ordered  the  withu.  awal 
of  lands  along  the  route  of  the  Pacific  rail- 
road, were  not  embraced  in  the  land  to  that 
company  granted  by  the  Act  of  Congress  of 
July  I,  1862,  as  enlarged  by  the  act  of  1864. 
Newhall  v.  Sanger,  92  U.  S.  761. — DISTIN- 
GUISHED IN  Ryan  v.  Central  Pac.  R.  Co.,  5 
Sawy.  (U.  S.)  260;  United  States  v.  Central 
Pac.  R.  Co.,  II  Sawy.  438.  Explainku  in 
Carr  v.  (Juigley,  149  U.  S.  652.  Followed 
IN  McLaughlin  v.  Fowler,  52  Cal.  203.  Re- 
viewed IN  United  Slates  v.  Southern  Pac. 
R.  Co.,  14  Sawy.  620. — Southern  Pac.  R.  Co. 
V.  Garcia,  64  Cal.  315.  2  Pac.  Rep.  397. 

The  publication  and  approval  by  the  sur- 
veyor-general of  a  plat  and  survey  of  a 
Mexican  grant,  under  the  act  of  June  14. 
i860,  has,  in  the  absence  of  an  application 
to  have  it  returned  into  the  district  court 
for  examination  and  adjudication,  the  same 
cfTect  and  validity  as  if  a  patent  had  issued  ; 
and  thereafter  the  grant  is  in  no  sense  sub 
judice,  and  is  segregated  from  the  lands  ly- 
ing outside  of  the  survey.  Southern  Pac. 
R.  Co.  V.  Garcia,  64  Cal.  5 1 5,  2  Pac.  Rep.  397. 

Lands  formerly  belonging  to  Mexico,  and 
granted  by  that  government  to  individuals, 
are  not  "  public  lands  "  within  the  meaning 
of  the  acts  of  congress  making  grants  to 
railroads,  being  expressly  reserved  in  the 
granting  clause  of  the  statutes.  Doolan  v. 
Carr,  125  U.  S.  618,  8  Sup.  Ct.  Rep.  1228.— 
Followed  in  Carr  ta  Quigley,  79Ca!.  130, 
21  Pac.  Rep.  607. 

Such  lands  are  excluded  from  grants  by 
congress  to  railroads,  to  tiie  extent  of  the 
clainj  when  bounded  by  specific  lines,  and 
also  to  the  extent  of  the  quantity  named 
when  embraced  within  larger  boundaries. 
Doolan  v.  Carr,  125  U.  S.  618.  8  Sup.  Ct. 
Rep.  1228.— Reviewed  in  United  States  7/. 
Southern  Pac.  R.  Co.,  14  Sawy.  (U.  S.)  620. 

Lands  wirhin  the  exterior  limits  of  a 
Mexican  grant,  and  which  were  sub  judice  at 


Tmi 


'ft  ' 


IGO 


LAND   GRANTS,  50. 


the  time  the  line  of  the  Pacific  railroad  was 
definitely  fixed,  were  not  reserved  within 
the  meaning  of  the  act  of  July  i,  1862,  § 
3,  but  were  properly  paientctl  to  the  com- 
pany. Citrr  V.  (^uigley,  149  U.  S.  652,  13 
Sup.  CI.  l\ep.  961  ;  rtiiersiit^t;  79  Cal.  130,  21 
Pile.  Rep.  607. — Api'KOVINc;  United  States 
V.  McLauglilin,  127  U.  S.  428.  Explain- 
ing Newhall  v.  Sanger,  92  U.  S.  761. 

Where  a  company  selects,  as  part  of  its 
indemnity  lands,  land  whicii  is  within  a 
tract  covered  by  a  Mexican  claim,  a  patent 
liierefor  conveys  a  perfect  title  to  the  com- 
pany where  the  Mexican  claim  is  rejected 
before  the  company  r.iakes  its  selection, 
tliough  it  was  subjudice  at  the  time  the  grant 
was  made.  Kyan  v.  Central  Pac.  /»'.  Co.,  5 
Sawy.  (U.  S.)  260;  affirmedin  99  U.  S.  382. 
—  D1.STINGUI.SHING  Newhall  7>.  Sanger,  92 
U.  S.  762. — Approved  in  Southern  Pac.  R. 
Co.  V.  Dull,  10  Sawy.  506,  22  Fed.  Rep. 
489.  FoLLOWKD  IN  United  States  1'.  Cen- 
tral Pac.  R.  Co.,  II  Sawy.  438.  Revikwkd 
IN  Southern  Pac.  R.  Co.  v.  Wiggs,  14  Sawy. 
568. 

The  Mexican  grant  called  Las  Pocitas 
was  a  float — a  grant  of  two  leagues  within 
exterior  boundaries  embracing  ten  or  more 
leagues,  which  two  leagues  so  granted  were 
confirmed  and  patented  to  the  claimants, 
and  the  odd-numbered  sections  outside  of 
the  two  leagues  granted  and  confirmed, 
but  inside  of  the  exterior  boundaries,  passed 
to  the  railroad  company.  United  States  v. 
Curtner,  14  Sawy.  {U.  S.)  535,  38  Fed.  A'ep. 
I.— Reviewing  United  States z/.  McLaugh- 
lin, 127  U.  S.  428. 

When  a  Mexican  grant,  by  specific  boun- 
daries carrying  all  the  lands  within  the 
designated  boundaries,  has  been  confirmed 
by  a  decree  which  has  become  final,  the 
said  decree  specifically  pointing  out  and 
designating  the  corners  by  natural  objects 
on  the  ground,  and  the  connecting  lines, 
all  lands  outside  those  specific  monuments 
and  lines,  from  the  date  when  the  decree 
becomes  final,  cease  to  be  iub  judice,  if  they 
ever  were  in  that  condition.  (Ross,  J.,  dis- 
senting.) United  States  v.  Southern  Pac. 
A'.  Co.,  14  Sawy.  (U.  S.)  620.— Reviewing 
Newhall  v.  Sanger,  92  U.  S.  761  ;  Doolan  v. 
Carr,  125  U.  S.  638;  United  States  v.  Mc- 
L;iughlin,  127  U.  S.  428. 

AO.  RiKlitHofNettlentaiid  |»re-ciii|i- 
tioiierH.*— Where  public  lands  have  been 

*  Rights  of  Mttlen  on  lands  granted  to  rail- 


granted  10  railroads,  will:  a  reservation  of 
certain  sections,  after  the  restoration  to 
market  of  such  lands  they  cease  to  be  re- 
served lands,  and  may  be  pre-empied  like 
other  land.s.     Clements  \.  ll'arner,  2\  IIo7c>. 

(f.  .S-.)394. 

Where  a  statute  extends  the  time  for  the 
completion  of  a  railroad,  under  a  land 
grant,  on  condition  that  the  rights  of  ac- 
tual settlers  be  preserved,  and  that  a  formal 
acceptance  of  the  provisions  of  the  statute 
be  filed  with  the  secretary  of  the  interior, 
and  the  company  continues  to  exercise  its 
chartered  rights  after  the  time  for  the  com- 
pletion of  its  road,  it  will  he  presumed  that 
it  has  accepted  the  condition,  and  relin- 
quished claim  to  lands  of  actual  settlers, 
though  no  acceptance  has  been  filed  with 
the  secretary  of  the  interior.  St.  Piiul,  M. 
&*  A/.  A'.  Co.  v.  (Jreenalj^/i,  139  U.  S.  19, 
1 1  Sup.  Ct.  lup.  395. 

The  railroad  grant  of  July  i,  1862,  con- 
veyed the  odd-numbered  sections  within  a 
certain  distance  of  the  railroad  "to  which 
a  pre-emption  or  homestead  claim  may  not 
have  attached."  Prior  to  such  act  an  indi- 
vidual had  filed  a  preemption  claim  which 
remained  intact  for  several  years  after  the 
passage  of  the  statute,  when  it  was  can- 
celed because  ihe  party  had  never  lived  on 
the  land.  Held,  that  the  subsequent  can- 
cellation would  not  pass  title  to  the  land  to 
the  railroad  company.  IVJiJuey  v.  Taylor, 
45  J-'ed.  A'ep.  616.— yuoTiNC.  Kansas  Pac. 
R.  Co.  V.  Dunmeyer,  113  U.  S.  641,  5  Sup. 
Ct.  Rep.  566;  Hastings  &  D.  R.  Co.  t/. 
Whitney,  132  U.  S.  364,   10  Sup.  Ct.  Rep. 

112. 

A  person  who  only  files  a  claim  to  pre- 
emtJt  land  from  the  United  States,  and  who 
fur  ten  years  thereafter  fails  to  make  aiiv 
settlement  upon  the  same,  or  any  improvc 
ments  thereon,  ought  to  be  considered  as 
having  relinquished  any  claim  thereto.  So 
where  a  railway  company  brings  an  action 
of  ejectment  against  such  person,  and  sets 
up  such  facts  as  show  a  good  title  to  tin- 
land  in  the  company,  under  a  land  grant, 
the  admission  of  such  claim  does  not  m.ike 
its  complaint  demurrable.  Northern  Pac. 
R.  Co,  V.  Meadows,  46  Fed.  Kep.  254.  — Rk- 
FERREi)  TO  IN  Hamilton  v.  Spokane  &  P. 
R.  Co.,  2  Idaho  898. 


road  company.  Effeci  of  withdrawal  of  lands 
from  entry,  see  46  Am.  &  Eng.  R.  Cab.  44S. 
abttr. 


LAiNi-) 


0*Vi4i>i  i  i^i    •>  *  «  •->  — • 


lUl 


Congress  has  the  power  to  gram  a  riglit 
of  way  for  a  railroad  over  public  lands 
wliicli  are  occupied  by  persons  who  have 
•.liu  liK'it  to  pre-empt,  but  who  have  not  yet 
perfected  that  right  by  proving  up  and 
making  payment,  for  the  land.  Wtstern 
/'ill-.  A'.  Co.  V.  Tcvis,  41  Cal.  489,  3  Am.  Ay. 
luf>.  50.  — Rkkkkkku  to  in  Hamilion  v. 
Spokane  &  P.  H.  Co.,  2  Idaho  898. 

II  a  patent  to  land  is  issued  to  a  railroad 
company  under  a  grant  made  by  congress 
of  alternate  sections  along  tlie  line  of  its 
rmite,  and  ejectment  is  brought  on  the  pat- 
ent against  one  who  had  settled  on  the 
land,  and  .acquired  a  pre-emption  right  be- 
fore the  land  had  been  witiidrawn  from 
market,  and  he  defends  on  the  ground  that, 
the  land  olliccrs  were  misled  by  false  and 
fraudulent  testimony  of  the  agent  of  the 
railroad  company,  the  facts  that  sucii  agent 
swore  that  the  land  was  vacant  and  unap- 
propriated, and  that  the  land  otficcrs  did 
not  know  that  the  defendant  was  on  the 
land,  tend  to  show  that  the  land  officers 
were  so  misled.  Campbell  v.  litukinaii,  49 
Cal.  362. 

If  the  line  of  the  Pacific  railroad  was 
(lelinitely  fixed  before  a  pre-emptor,  living 
on  an  odd  section  granted  to  said  road, 
wiiich  had  been  surveyed,  had  filed  his 
declaratory  statement,  then,  although  he 
alicrwards  files  such  statement  and  re- 
ceives a  patent,  the  railroad  company  has 
the  belter  title.  Weaver  v.  Fairehild,  50 
Cal.  3to. 

When  railroad  lands,  granted  to  the  Pa- 
cific riilroads,  are  withdrawn  from  ])re-emp- 
tioii  and  sale  by  the  direction  of  the  secre- 
tary of  the  interior,  it  will  be  presumed 
that  the  railroad  company  has  filed  a  map 
(Icsigiialing  the  general  route  of  the  road. 
llViC'i/  V.  Fairehilii,  50  Cal.  360. 

A  parly  who  has  entered  upon  ptd)lic 
land  to  acquire  the  title  from  the  govern- 
niciit  as  a  bona  fide  settler,  prior  to  the  rail- 
road grant  must  show  his  good  faith  by 
(liliyeiitly  complying  with  the  recpiirenients 
"f  the  law  under  which  he  expects  to  secure 
the  title,  and  must  be  entitled  to  initiate  a 
valid  claim  under  the  law.  Afcl.aiii;/ilin  v. 
iliiiolti,  «9  Cal.  354,  26  rac.  A'e/>.  SXo. 

A  I.  liMlciiiiiity  IiiimIn— Title  (Io<>m 
not  piiHH  until  Ht'h'ctioii  iiihI  iip- 
proval  by  NiMTotary  of  interior.— 
Title  to  the  indenmiiy  lands  does  not  pass 
from  the  United  States  until  the  selection 
of  such  lands  by  the  company  with  the  ap- 
6  n.  R.  D.  — II. 


proval  ol  tue  secretary  of  the  interior. 
Until  such  approval  such  lands  are  not  sub- 
ject to  taxation.  Jackson  v.  La  Moure 
County,  46  Am.  is'  l-ng.  K.  Cas.  449,  1  A'. 
Dak.  23S.  Harney  v.  Winona  ^  St.  /'.  R, 
Co.,  26  Am.  Sf*  En^.  K.  Cas.  522,  117  U.  S. 
228,  6  Sup.  Ct.  Rep.  654.  — Foi.l.owiii)  in 
United  States  v.  Missoiui,  K.  &  T.  K.  Co., 
141  U.  S.  35S. —  Uniied  States  v.  Missouri, 
K.  &•  T.  R.  Co.,  51  Am.  &>  Enf^.  R.  Cas.  305, 
141  U.  S.  358,  12  Sup.  Ct.  Rep.  13.-  Koi,- 
l,()\viN«i  Kansas  Pac.  R.  Co.  v.  Aiclnson, 
T.  &  S.  F.  U.  Co.,  112  U.  S.  414;  Barney  .•. 
Winona  &  St.  P.  R.  Co.,  117  U.  S.  jj8; 
Sioux  City  «&  St.  P.  R.  Co.  v.  Chicago.  M. 
A  St.  P.  R.  Co.,  117  U.  S.  406;  Wisconsin 
C.  R.  Co  7/.  Price  County,  133  U.  S.  496. 
—Alusser  v.  MeRae,  38  Minn.  409,  38  A'. 
W.  Rep.  \oy.  further  appeal  wMinn.  343, 
46  .\'.  //'.  Rep.  673.  Resser  v.  Carney,  32 
Minn.  yyj.  54  .\'.   W.  Rep.  89. 

A  grant  of  them  by  such  railioad  be- 
fore such  selection  and  approval,  to  another 
which  claims  them  un(ier  an  overlapping 
grant,  passes  no  title.  Wisconsin  C.  R.  Co. 
V.  Foisyt/ie,  43  Fed.  Rep.  867. 

The  fact  that  an  arljustment  is  afterwards 
had  of  the  rights  of  the  beneficiary  of  tin; 
first  grant,  whereby  it  is  shown  that  the  re- 
served lands  will  not  be  needed  for  the  in- 
den  'lity  purposes  for  which  ihey  were 
restrv:'d,  does  not  bring  such  lands  within 
the  oi)eration  of  the  second  overlapping 
grant,  and  title  to  them  remains  in  the 
United  States.  Wisconsin  C.  R.  Co.  v. 
Forsyt/ie.  43  Fid.  Rep.  867. 

rttS.    siifltcifMicy  of  st'CTotary'.H 

approval.— When  a  statute  granting  lanfts 
to  a  railroad  provides  that  indemnity  lands 
may  be  selected  within  prescribed  lindts, 
and  that  upon  the  approval  of  such  selci-- 
lion  by  the  secretary  of  the  interior  patents 
shall  be  issued  therefor,  the  act  of  the  sec- 
retary approving  of  the  selection  is  jiidici.il, 
and  not  ministerial,  and  until  such  approv  .d 
has  been  maile  the  company  has  no  such 
vested  interest  in  the  lands  as  subjects  it  to 
liability  for  state  taxes  in  respect  thereof. 
The  failure  of  the  secretary  of  the  interior 
to  reject  the  selection  made  by  the  com- 
pany docs  not  amount  to  a  constructive  i\\t- 
proval.  Wisconsin  C.  R.Co.  v.  Price  County, 
41  Am.  &*  Eng.  R.  Cas.  669,  133  ('.  S.  496, 
10  Sup.  Ct.  Rep.  341.  — Foi.l.owKl)  IN  United 
States  V.  Missouri,  K.  &  T.  R.  Co.,  141  U. 
S.  358.  yitoi  Ki)  IN  Northern  Pac.  R.  Co. 
V.  Barnes,  2  N.  Dak.  310. 


163 


LAND    GRANTS,  53-58. 


>li 


53. locntioii  niul  flliiii;  of  iiinp 

to  precede  Heleetioii. — When  conjjress 
makes  a  grunt  of  land  for  railroad  purposes 
of  the  odd-numbered  sections  within  a  given 
distance  of  the  road,  with  a  provision  for  an 
indemnity  for  such  as  sliull  liave  been  pre- 
viously granted  or  pre-empted,  and  directs 
tile  secretary  of  the  interior  to  reserve  tiie 
same  wiien  a  map  shall  be  tiled  showing  the 
location  of  the  road,  tlie  tiling  of  tlie  map 
cuts  of!  the  I  igiit  of  entry  upon  the  lands 
contained  in  the  grant  proper,  but  no  right 
attaches  to  the  indemnity  lands  until  se- 
lected, wliicli  can  only  be  done  after  the 
road  is  located.  C'li/iir  liapids  &*  M.  A\  A'. 
Co.  V.  Herring,  14  Am.&*  Etig.  K.  Cas.  537. 
no  U.  S.  27,  3  Sup.  a.  Rep.  485.— DisriN- 
cuisHiiU  IN  Iowa  Falls  «i  S.  C.  R.  Co.  v. 
Beck,  67  Iowa  421.  Followed  in  St.  Paul 
&  S.  C.  R.  Co.  V.  Winona  &  St.  P.  R.  Co., 
112  U.  S.  720;  Sioux  City  &  St.  P.  R.  Co.  v. 
Chicago,  M.  &  St.  P.  R.  Co.,  117  U.  S.  406. 
QuoTKl)  IN  Northern  Pac.  R.  Co.  v.  St, 
Paul,  M.  &  M.  R.  Co.,  25  Am.  &  Eng.  R. 
Cas.  99,  26  Fed  Rep.  551. 

Under  the  provisions  of  the  Act  of  Con- 
gress of  July  2,  1864,  grant iiiii  land  to  the 
Northern  Pacific  railroad,  the  act  itself 
withdrew  the  lands  from  pre-emption  after 
the  route  of  the  road  was  fixed ;  and  on  til- 
ing a  map  of  the  route  of  the  road,  through 
the  secretary  of  the  interior,  the  grant  at- 
tached to  the  sections  conveyed,  and  no 
notice  of  the  withdrawal  of  such  lands  from 
the  secretary  of  the  interior  was  necessary. 
United  States  v.  Northern  Pac.  A\  Co.,  41 
Feti.  A'ep.  842. 

In  an  action  to  recover  land  claimed  to 
have  pas.'.ed  to  plaintifT's  grantor  under  a 
congressional  grant,  as  deficiency  lands  se- 
lected within  the  fifteen-mile  limits— //<•/(/, 
that  a  ctrtilied  copy  of  the  list  of  such  selec- 
tions, from  the  records  of  the  general  land 
office,  was  competent  evidence.  Chicago,  li. 
6-  Q,  A'.  Co.  v.  Lewis,  53  /irwa  101, 4  A\  W. 
A'e/>.  842. 

54.  rntificatioii  of  proiiiatiire 

neleetloii.— The  fact  that  the  selection  of 
indemnity  lands  was  made  prematurely  by 
one  who  had  not  been  appointed  by  the 
state  as  its  agent  is  immaterial,  the  selec- 
tions made  by  him  having  been  ratified  by 
both  state  and  federal  governments,  and  the 
lands  so  selected  having  been  certified  as 
within  the  grant.  Chicago,  K,  /.  (S-  P.  R. 
Co.  V.  Grinnell,  51  Icwa  476.— Applied  in 
Siuux  City  &  D.  M.  R.Cu.  v.  Chicago,  M.  k 


St.  P.  R.  Co.,  25  Am.  &  Eng.  R.  Cas.  150, 
27  Fed.  Kep.  770. 

55.    when   Nelectiou  iiiiiieeeH- 

Hurj'.-  -VVIicre  an  act  of  congress  provides 
for  the  seluclioii  of  railroad  indemnity  lands 
within  certain  limits,  and  it  appears  ail  the 
government  land  within  tlie  limits  is  neces- 
sary to  com])lete  the  indemnity,  no  selcc- 
ti(jn  is  necessary.  St.  Paul  &*  /'.  A'.  Co.  v. 
Aorthern  Pac.  R.  Co.,  \y)  U.  S,  1,11  Sup, 
a.  A'ep.  3S9. 

50.  priority  of  Helevtioii  deter- 

iiiliieH  owiierMliip.  —  The  title  to  lands 
granted  by  the  United  States  to  aid  rail- 
roads relates  Imck  to  the  date  of  the  grant. 
So  where  a  grant  is  made  to  aid  two  roads 
wliich  cross  each  other,  the  first  roa<l  lo- 
•  cated  or  built  does  not  take  the  whole  of 
the  land  within  the  prescribed  limits  at  the 
place  of  crossing,  but  the  two  roads  an-  ten- 
ants in  common  in  that  part  of  the  land  ;  but 
not  so  of  indemnity  lands;  there  priority 
of  selection  determines  the  ownership. 
Sioux  City  «&«•  .SV.  /'.  R.  Co.  v.  Chicago,  M. 
<5>»  St.  P.  Co.,  24  Am.  &*  Eng.  R.  Cas.  ico, 
117  U.  S.  406,  6  Sup.  Ct.  Rep.  790. — Foi- 
l.owiNC,  Cedar  Rapids  &  M.  R.  R.  Co.  ?■. 
1  lerring,  1 10  U.  S.  27  ;  Kansas  Pac.  R.  Co.  v. 
Atchisoii,  T.  &  S.  F.  R.  Co.,  112  U.  S.  414. 
—  Followed  in  United  States  7'.  Missouri, 
K.  .Sr  T.  R.  Co..  141  U.  S.  358. 

57.  Aei'eptaiM'e  of  jfrniit.— Where  it 
does  not  ai)pear  that  a  railroad  company 
ever  accepted  or  acted  under  the  joint  reso- 
lution of  congress  of  April  10,  1869,  but  it 
seems  that  it  declined  to  accept  it,  there  is 
no  presumption  without  evidence  that  it 
did  accept  any  rights  under  it,  I'niteii 
States  V.  Northern  Pac.  R.  Co.,  41  Fed.  Rep. 
842. 

5H.  Sale  of  laiulH  granted.— A  sale 
of  lands  granted  to  a  railroad,  made  in  con- 
travention of  the  letter  and  policy  of  the 
law,  is  void  alt  initio.  Swann  v.  Miller,  82 
Ala.  530,  I  .So.  Rep.  65. 

The  Act  of  Congress  of  April  10,  1869  (16 
St.  at  L.  pp.  45  (Sc  46),  is  a  law  as  wcM  as  a 
grant,  and  where  land  granted  to  a  railroad 
has  been  conveyed  in  violation  of  the  con- 
ditions of  the  act,  the  benefit  of  such  defect 
may  be  taken  advantage  of  by  a  person 
other  than  the  United  States,  although  it  is 
the  rule  that  no  person  other  than  the 
grantor,  his  heirs  or  assigns,  can  take  ad- 
vantage of  the  breach  of  a  condition  subse- 
quent. Swann  v.  Miller,  82  Ala.  530,  i  So, 
Rep.  65. 


LAND   Gilj.NTS,  5»-02. 


163 


The  state  could  not  pass  any  title  to  or 
rii;iit  in  the  lands  except  in  the  manner  au- 
tliurized  by  the  act  of  congress.  Cedar 
K,if>t(h  &*  M-  A'.  A'.  Co.  V.  Carroll  County, 
41  Awrt  153. 

.*»)».  Forl'vitiire  only  availiiblo  at 
instance  of  {government.— A  forfeiture 
of  lands  j;rantcd  a  railroad  by  the  United 
Stales  for  a  failure  to  comply  with  the  con- 
ditions of  the  grant  can  only  be  taken  ad- 
vantajje  of  by  the  government,  and  not  by 
an  individual  holding  an  imperfect  title  to 
part  of  the  lands.  Van  \\'yck  v.  KnevAls, 
10  Am.  &*  Eni(.  A\  Cas.  664,  106  I/.  S.  360, 
I  .s'///.  C/.  Rip.  336.  liyhee  v.  Oregon  &•  C. 
A'.  Co.,  46  ^lin.  &*  Kng.  K.  Cas.  460,  1 39  U. 
S.  6f)j,  II  Sup.  Ct.  Rep.  641.— DisTlNUUlsH- 
INd  In  re  Brooklyn,  VV.  i"fe  N.  K.  Co..  72  N. 
Y.  245:  Brooklyn  Steam  Transit  Co.  v. 
Brooklyn.  78  N.  Y.  524;  Union  Hotel  Co. 
V.  Hersee,  79  N.  Y.  454;  Farnham  v.  Bene- 
dict. 107  N.  Y.  I  y).— 'United  States  v.  Curt- 
tier.  38  /•"*•(/.  Rfp.  I.— Follow  F.I)  i\  South- 
ern Pac.  K.  Co.  V.  Stanley.  49  Fed.  Uep.  263. 

Where  lands  have  been  granted  in  firie- 
siii/i  to  a  railroad  company,  and  congress 
afterwards  allows  the  grantee  to  assign  the 
lands  to  anutl.er  company,  the  government 
might  question  the  title  on  the  ground  that 
the  grantee  has  failed  to  perform  conditions 
ini|)osed  in  the  grant,  but  the  latter  com- 
pany cannot  do  so.  farker  v.  Xcm  Orleans, 
li.  a:  &-  V.  A".  Co.,  33  J'ed.  Rep.  693. 

00.  Qnietintr  title  to  land  granted. 
—Till.'  existence  of  an  invalid  patent  to 
lands  that  have  been  granted  to  a  railroad 
is  a  cloud  upon  the  title,  which  the  company 
or  its  grantees  may  have  removed  by  bill  in 
equity.  Van  Wyck  v.  fCnevals,  10  Am.  &* 
Eng.  R.  Cas.  664.  loO  C'.  S.  360.  1  Sup.  Ct. 
Rip.  336.— Al'l'LlKi)  IN  Northern  Pac.  R. 
Co.  V.  St.  I'aul.  M.  &  M.  R.  Co.,  25  Am.  & 
Eng.  K.  Cas.  99,  26  Fed.  Rep.  551.  Ex- 
I'l.AiNKi)  IN  Savannah,  F.  &  W.  R.  Co  v. 
Davis.  43  Am.  &  Eng.  R.  Cas.  542,  25  Fla. 
917.  7  -^o.  Rep.  29.  FoLLOWKl)  IN  Walden 
V.  Knevals.  114  U.  S.  373,  Rkconcii.ED  IN 
E..SI  .Ala.  R.  Co.  v.  Tennessee  &  C.  R,  R. 
Co.,  29  Am.  &  Eng.  R.  Cas.  363.  78  Ala.  274. 

Where  a  land-grant  radroad  company  be- 
gins a  proceeding  against  an  individual  to 
quiet  its  title  to  certain  lands  which  it 
claims  under  a  grant,  the  defendant  may 
defend  by  showing  that  the  land  is  swamp 
and  overflowed  land,  and  therefore  not  in- 
cluded in  the  grant  to  the  company.  South- 
trn  Pac.  R.  Co.  v.  AfcCusker,  33  Am.  &*  Eng. 


A".  Cas.  187,  67  Cal.  67.  7  Pac.  Rep.  122.— 
Following  McLaughlin  v.  Held,  63  Cal. 
208. 

01.  AVitlilioldinK  patent  nntil  pny- 
nieiit  ol"  costs  of  »nrvey.— Where  con- 
gress grants  land  to  a  railroad  and  di- 
rects patents  to  issue  for  lands  opposite 
every  twenty  miles  of  road  completed,  but 
reserves  the  right  "to  add  to.  alter,  amend, 
or  repeal "  the  grant,  it  is  competent  for 
congress  by  a  subsequent  law  to  provide 
that  patents  shall  not  issue  until  the  com- 
pany shall  pay  the  government  the  cost  of 
surveying.  Northern  Pac.  R.  Co.  v.  Traill 
County,  25  Am.  &^  Eng.  R.  Cas.  364.  11; 
U.  S.  600,  6  Sup.  Ct.  Rep.  201. 

An  Act  of  Congress  of  July  31.  1876,  pro- 
vided that  before  any  conveyance  was  made 
of  any  lands  granted  to  railways  the  cost 
of  surveying  the  same  should  be  paid  to  the 
United  States,  unless  the  company  was  ex- 
empted by  law  from  payment  of  such  costs. 
Held,  that  the  law  applied  to  the  New 
Orleans  Pacific  railway,  as  assignee  of  the 
New  Orleans,  Baton  Rouge  &  Vicksburg 
railway,  under  the  grant  made  the  latter 
by  the  act  of  March  3. 1871.  §  22.  though  the 
costs  of  the  survey  harl  been  expended  by 
the  government  prior  to  the  date  of  the  lat- 
ter act.  the  road  not  having  been  com- 
menced within  the  five  years  limited  by  the 
act.  A\ii>  Orleans  Pac.  R.  Co.  v.  United 
States,  33  .////.  &*  Eng.  R.  Cas.  74,  124  U.  S. 
124.  8  Sup.  Ct.  Rep.  417;  affirmiti^  21  Ct. 
of  CI.  459.  — Following  United  States  v. 
Repentigny.  5  Wall.  (U.  S.)  211;  Kansas  Pac. 
R.  Co.  7'.  Prescott,  16  Wall.  603;  Union  F^ac. 
R.  Co.  V.  McShane.  22  Wall.  444. — Re- 
ferred TO  IN  New  Orleans  Pac.  R.  Co.  v. 
Parker,  143  U.  S.  42,  12  Sup.  Ct.  Rep.  364. 

The  company  having  failed  to  construct 
its  road  in  the  time  limited,  congress  had 
the  right  to  impose  the  condition  that  it 
should  be  granted  only  on  p.iyment  of  cost  of 
survey.  Neto  Orleans  Pac.  R.  Co.  v.  United 
States,  33  Am.  &*  Eng.  R.  Cas.  74,  124  U. 
S.  124.  8  Sup.  Ct.  Rep.  417;  affirming  21 
Ct,  of  CI.  459. 

02.  Revocation  of  irrantH.— A  rail- 
road company  took  a  grant  of  land  subject  to 
forfeiture  if  its  road  was  not  built  in  ten 
years.  Before  the  time  had  fully  elapsed 
the  legislature  declared  the  grant  forfeited  ; 
and  this  declaration  of  forfeiture  was  con- 
firmed by  a  subsequent  act  after  the  time 
had  fully  run.  The  company  claimed  that 
the  first  act  was  unconstitutional,  but  op- 


1      ( 


\ 


164 


LAND   GRANTS,  o;J. 


eratcd  to  destroy  its  credit,  and  tlius  pre- 
vent it  from  completing  its  roail,  and  tliat 
the  grant  became  absolute.  ILla,  that  this 
contention  could  not  be  sustained.  Tlie 
passage  of  the  first  act  of  forfeit ure,  if  void, 
did  not  prevent  the  legislature  from  sub- 
sequently passing  a  valid  act  touching  the 
same  subject.  Farmers'  L.  &*  T.  Co.  v. 
C/in;ij[o,  P.  6-  S,.  K.  Co..  3()  Fiuf.  A'</.  143. 

And  in  such  case  evidence  thai  the  act  of 
revocation  was  induced  by  false  representa- 
tions by  a  rival  company  cannot  be  con- 
sidered. The  courts  cannot  inquire  into 
the  causes  that  influenced  the  legislature. 
Farmers  L.  &*  T.  Co.  v.  Chicago,  /'.&'  .S".  A'. 
Co..  39  Fe(f.  Rep.  143.  — Foi.i.tnvEU  IN  Angle 
7/.  Chicago.  St.  P.,  M.  &  O.  R.  C0..39  Fed. 
Kcp.  912. 

And  the  fact  that  another  company  had 
become  the  principal  stockhoUlcr  and  cred- 
itor of  the  complaining  company,  and  liad 
constructed  its  road  parallel  to,  and  only  a 
few  yards  from,  plaintitT's  incomjilcted  road, 
was  not  a  completion  of  plaintitT's  road  so 
as  to  prevent  a  forfeiture.  Farmers'  L.  &* 
T.  Co.  V.  Chicago,  P.  &•  S.  A*.  Co.,  39  /\ti. 
Kep.  143. 

2.  To  the  Pacific  Railroads, 
a.  Central  Pacific. 
63.  The  i^rHiitM  nrc  in  pricHeiiti— 
Title  vested.— The  grant  of  the  right  of 
way  to  the  plaintifT  through  the  public  lands 
of  the  United  States,  made  by  the  second 
section  of  the  Act  of  Congress  of  July  i,  1862, 
was  a  present  grant,  operating  immediately 
upon  the  passage  of  the  act,  without  reserva- 
tion or  exception,  and  was  subject  to  no 
conditions  except  those  which  were  sub- 
sequent, or  necessarily  such  as  that  the  road 
should  be  constructed  within  the  period 
specified,  and  be  afterwards  maintained  and 
used  for  the  purposes  designated.  All  ac- 
quisitions of  land  over  which  this  right  of 
way  was  thus  granted,  made  subsequent  to 
the  passage  of  the  act,  were  subject  to  the 
exercise  of  this  right.  The  reservations  and 
exceptions  found  in  the  third  section  of  the 
above  act  apply  only'to  the  grants  of  the 
land  therein  mentioned,  and  do  not  apply 
to  the  grant  of  the  right  of  way  made  in  the 
second  section.  Central  Pac.  R.  Co.  v.  Dyer, 
I  Sawy.  ((/.  S.)  641.  United  States  v.  Curt- 
ner,  14  Sawy.  (U.  S.)  535.  38  Fed.  Rep.  i ; 
reversed  in  149  U.  S.  662,  13  Sup.  Ct.  Rep. 
1041.  Francoeur  v.  Newhouse,  40  Am.  &* 
Eng.  R.  Cos.  439,  40  Fed.  Rep.  618.     Mc- 


LiiUfihiin  v.  .Menotti,  Sy  Cat.  354,  26  Pac. 
Kcp.  SSo.  Jalunn  v.  Smith,  95  Cal.  154, 
30  /-<.-.  Kip.  200.  Tarpcy  v.  Ihscrcl  .Salt 
Co.,  5  Utah  494,  17  Pac.  Rep.  631.— Al'I'l.Y- 
ING  Northern  Pac.  K.  Co.  v.  Traill  C<*unty, 
115  U.  S.  600. 

The  title  which  vests  under  the  congres- 
sional grant,  and  the  performance  of  tlir 
prescribed  conditions,  is  a  legal  title,  u|>'  n 
wliicli  an  action  of  ejectment  may  be  in.nii- 
tained  before  the  patent  issues.  l-'raiiti\ur 
V.  Nc;uhouse,  40  .-//;/.  &»  F'ig.  K.  Cas.  ,\y).  40 
F,;t.  Kcp.  618. 

The  failure  to  pay  the  expense  of  survi  y- 
ing,  under  section  21  of  the  act  of  1S64,  only 
prevents  the  issue  of  the  patent.  It  does 
not  prevent  the  title  attaching  under  the 
congressional  grant.  Francoeur  v.  i\V7i'- 
huuse,  40  ///;/.  Sf  luig.  R.  Cas.  439,  40  / ,,/. 
Rep.  618. 

As  the  legal  title  to  land  granted  vested 
in  the  company  upon  identification  of  tin- 
land,  and  not  at  the  date  of  the  patent 
issued  by  the  United  States,  tlie  statute  of 
limitations  commences  to  run  in  f.ivcir  of 
one  who  diverted  the  waters  of  a  stieain 
upon  the  land  after  such  identilication  and 
prior  to  the  date  of  the  patent,  from  the 
date  of  the  diversion,  as  against  the  railroad 
company  and  its  grantees.  Jattinn  v.  Smith, 
95  Cal.  154;  30  Pac.  Rep.  200.— (Ji  uiisc; 
Deseret  Salt  Co.  7'.  Tarpey,  142  U.  S.  241  ; 
Denny  v.  Dodson,  32  Fed.  Rep.  899;  F^r- 
rcsier  v.  Scott,  92  Cal.  398. 

The  lands  granteil  were  the  odd-num- 
bered sections  within  twenty  miles  of  the 
line  of  the  road,  such  as  were  public  lands 
at  the  date  of  the  act,  not  sol  1,  reserved. 
or  otherwise  disposed  of  by  ihe  United 
States,  and  such  odd-numbere.l  sections 
within  the  same  limits  as  were  public  latids 
to  which  a  pre-emption  or  hr.mestead  cl.niii 
had  not  attached  at  the  lin.e  the  line  of  the 
road  was  definitely  fixed.  United  States  v. 
Curtner,  14  Sawy.  {U.  S.)  535,  38  Fed.  A'</. 
I ;  reversed  in  149  U.  S.  662,  13  Sup.  Ct.  Kip. 
1041. 

No  right  other  than  that  of  the  railroad 
company  could  be  acquired  or  initiated  in 
any  of  said  odd  sections  of  land,  after  tiic 
filing  in  the  local  land  office  of  the  district 
on  January  30,  1865,  of  the  order  of  with- 
drawal provided  for  in  §7  of  the  act  of  July 
I,  1862.  United  States  v.  Curtner,  14  Sawy. 
(U.  S.)  535.  38  Fed.  Rep.  1  ;  reversed  in  149 
U.  S.  66j,  13  Sup.  Ct.  Rep.  1041, 

No  right  of  any  kind  had  attached  to 


tr.il  I'aci 
in  width 
grant  a  1 
and  oper 
special 
Icijislalu 
and   iifC( 
cali'd   t< 
graiUei- 1 
of   all  th 
SMcli    rig 
piny  iiiii 
to  recovi 
fmir  liiini 
ijcciipyii 
ro.id-bei 
Cal.  :79, 

IN'.     U'O 

C.il,  474. 

V.     IJcilit' 

Minn. 
5  .V,(;(.| 
sec  iSi  (" 


LAND   GRANTS,  «4-««. 


1C5 


these  lands  when  they  were  withdrawn  for 
the  purposes  of  a  railroad  ^jrant  on  laiiiiary 
30,  i'S65,  that  under  tlic  recent  decision  of 
ihc  I'liitcd  States  supreme  court,  in  United 
St.iiis  V.  McLauj^hlin,  could  prevent  that 
jjraiit  from  attaching.  It  was,  therefore,  tlie 
lirsi  fjrant  to  attach,  and  by  performance  of 
the  conditions  subsequent  the  title  of  the 
company  became  absolute.  Untied  States 
V.  Cuttiur,  14  Siiwy.  {U.S.)  535,  38  Fed. 
Rip.  I  ;  ri-vcrsed  in  149  U.  S.  662,  13  Sup. 
CI.  lup.  1041. 

The  seleclioiis  in  question  were  excepted 
from  confirmation  by  the  act  of  1866;  but 
had  it  been  otherwise,  it  was  not  in  the 
power  of  con^jress  at  that  time  to  divest  the 
riiihi  of  tiie  company.  United  States  v. 
Ciirlnrr.  14  .S<k<m'.  {U.  S.)  535,  38  Fed.  AV/. 
1;  re-.'crsed  in  149  U.  S.  662,  13  Sup.  Ct. 
J\e/>    1041. 

The  act  of  March  i,  1877  (19  St.  at  L.  267), 
for  like  reasons,  cannot  affect  the  rij^hts  of 
th<;  railroad  company.  At  the  date  of  this 
coiilirniatory  act,  seven  years  after  the  title 
of  this  company  became  perfect,  the  United 
States  had  no  interest  whatever  in  the  land 
upon  \vlii(  h  the  act  could  operate.  United 
Stales  V.  Citrtnei ,  14  Sinoy.  (U.  S.)  535. 

<(4.  Tli<>  laiidH  Kruiitvd.— The  Art  of 
Coiii^ressof  July  1, 1862,  granting  to  the  Ccn- 
tr.il  Pacific  a  right  of  way  two  hundred  feet 
in  width  on  each  side  of  its  road,  did  not 
grnitamere  easement  for  the  construction 
and  operaiifjn  of  its  road,  but  operatcfl  as  a 
special  tyrant  of  Kind,  and  is  a  conclusive 
lei^islative  determination  of  the  reasonable 
and  necessary  quantity  of  land  to  be  dedi- 
cated to  this  public  use,  and  gave  to  the 
grantee  the  exclusive  right  to  tin:  possession 
of  all  the  land  embraced  in  the  grant  <jf 
such  right  of  way;  and  the  railroad  com- 
limy  may  maintain  an  action  of  ejectment 
to  recover  possession  of  the  whole  of  tlie 
four  luinilied  feet  so  granted,  although  only 
occnpying  a  small  portion  thereof  for  its 
ro.id-hed.  Sout/iern  Pac.  Co.  v.  Iltirr,  86 
CaL  279.  24 /'.H-.  A',/.  1032.  — DlSTi.vta  i.sH- 
iNi;  Wood  V.  Truckeo  Turnpike  Co..  24 
<-';il.  474.  Foi.i.owiNc;  Central  Pac.  R.  Co. 
V.  Iknity.  5  Sawy.  iiS;  Winona  ?■.  MufT.  11 
Minn.  iH).— Centra/  Pac.  A'.  Co.  v.  /ienily, 
S Sawy.  {U.S.)  1 18.  — AlM'ROVKl)  l\  Tennes- 
see .S[  C.  R.  Co.  7'.  East  Ala.  R.  c:o..  75 
Ala.  516,  51  Am.  Rep.  475.  Fol.i.owKU  in 
Southern  I'ac.  Co.  v.  Burr.  86  Cal.  279. 

The  right  of  such  railroad  company  to 
recover  the  land  so  granted  is  not  affected 


by  the  fact  that  it  offered  to  lease  to  dc 
fendant  the  parcel  in  dispute,  as  the  de- 
fendant had  no  right  to  inclose  or  occupy 
the  land  without  permission  of  the  railroad 
company.  .Southern  Pae.  Co.  v.  liurr,  86 
Cal.  279,  24  Pac.  Kep.  1032. 

05.  I»riorlty  over  rejectjMl  McxN 
can  uraiits.  — Land  included  within  the 
extei  ior  boundaries  of  a  Mexican  grant,  an 
application  for  the  confirmation  of  which 
was  pending  when  the  grants  were  made  to 
the  Central  Pacific  railroad  company  by 
the  Acts  of  Congress  passed  July  i,  1863,  and 
July  2, 1864,  and  which  grant  was  afterwards 
rejected,  did  not  pass  to  said  railroad  com- 
pany by  said  acts  of  congress.  McLaui^h- 
lin  V.  Fo7i<ler,  52  Cal.  203.  —  Following 
Newhall  v.  Sanger,  92  U.  S.  761.  (Jvkk- 
KUi.iNC,  Central  Pac.  R.  Co.  7>.  Yolland,  49 
Cal.  438  ;  Central  Pac.  R.Co  v.  Robinson,  49 
Cal.  446;  kaiser  i>.  McL:iughlin,49  Cal.  449. 

00.  K\«'<>|>tioii  of  mineral  laiMis.— 
The  exception  of  mineral  lands  from  the 
grant  to  the  Central  Pacific  extends  only  to 
lands  known  to  be  mineral,  or  apparently 
mineral,  at  the  time  when  the  grant  at- 
tached ;  and  a  di.srovery  of  a  gold  mine  in 
the  lands  after  the  title  has  vested  by  full 
performance  of  the  conditions,  does  not  de- 
feat the  title.  Francoeur  v.  h'eiuhouse,  40 
Am.  &*  F.ng.  K.  Cas.  439,  40  Fed.  A'ep.  618. 

Wlieii:  land  has  been  granted  tr)  private 
parties,  other  parties  have  no  right  after- 
wards to  enter  upon  the  land  and  prospect 
for  gold.  No  right  can  be  initiated  by  a 
trespass  upon  private  lands.  Francoeur  v. 
A'eit'/touse,  40  ytni.  &•  Eng.  K.  Cas.  439.  40 
Fed.  Nep.  618. 

A  person  claiming,  under  a  mineral  loca- 
tion, to  be  entitled  to  the  possession  of  land 
previously  patented  to  the  Central  Pacific, 
in  pursuance  of  the  acts  of  July  i,  186?,  and 
the  amendment  thereto  of  July  2,  1864,  in 
order  to  establish  his  right  of  possession  as 
against  a  person  claiming  under  the  p.itent, 
must  clearly  show  that  at  the  date  of  the 
patent  the  land,  under  the  conditions  then 
existing,  was  more  valuable  for  mining 
than  for  agriculture,  and  was  Miown  to  be 
such.  And  in  determining  the  relative 
value  of  the  land  for  such  purposes,  subse- 
quent changes  in  the  conditions  affecting  it 
cannot  be  considered.  Hunt  v.  Sleese,  75 
Cal.  620,  1 7  Pac.  A'ep.  920. 

Under  the  Act  of  Congress  of  July  1,  1862. 
all  mineral  lands  were  excepted  ;  and  where 
one  claims  lands  under  the  railroad  com- 


» 

-3.1 

,. 

-  '11 

-.4 

1S 

1 

'      it 

166 


LAND   GRANTS,  07-00. 


i! 


di 


pany,  he  must  prove  that  it  was  not  ex- 
cepted from  the  grant  as  mineral  land.  Cor- 
Pint-  Mill  C.  &•  S.  Co.  \.  Johnson,  7  Utah 
127,  26  Pac.  Kep.  922.—  Kkviewing  Mc- 
Grath  v.  Tallent,  7  Utah  256,  26  Pac.  Rep. 

574- 
07.  FIHng  man  niid  Its  effect.— The 

map  of  the  route  of  the  Western  Division  of 
the  Central  Pacific,  filed  with  the  secretary 
of  the  interior  Dec.  8,  1864,  is  a  map  of  tlie 
(jeneral  route,  and  not  the  line  "as  def- 
initely fixed,"  within  the  meaning  of  the  act 
of  1S62.  Unit  id  States  v.  McLaughlin,  30 
/•■<■</.  Rep.  147,  \2Sawy.  {U.S.)  179 ;  ajfinned 
in  127  U.  S.  428,  8  Sup.  a.  Rep.  1 177. 

The  provision  of  the  seventh  section  of 
the  above  act,  requiring  the  plaintiff,  within 
two  years,  to  desijjnate  the  general  route  of 
tlie  road  as  near  as  might  be,  and  file  a  map 
of  the  same  in  the  department. of  the  in- 
terior, did  not  adect  the  grant  of  the  right 
of  way ;  it  only  furnished  the  means  by 
which  the  secretary  could  withdraw  the 
lands  within  a  specified  distance  of  such 
designated  route  from  pre-emption,  private 
entry,  and  sale.  Central  Pac.  R.  Co.  v. 
Dyer,  i  Sa7vy.  (U.  S.)  641. 

The  filing  of  the  map  of  the  general 
route,  and  the  withdrawal  thereupon,  pro- 
tected the  lands  against  the  acquisition  of 
any  other  right  by  any  other  parties  until 
the  line  should  become  "definitely  fixed," 
when  the  grant  became  specific  by  attach- 
ing itself  to  every  odd  section  within  the 
prescribed  limits.  United  States  v.  Curtner, 
14  Sawy.  ( U.  S.)  535, 38  Fed.  Rep.  i  ;  reversed 
in  149  U.  S.  662,  13  Sup.  Ct.  Rep.  1041. — 
Rf.vikweu  in  Southern  Pac.  R.  Co.  v. 
Wiggs.  14  Sawy.  568. — McLaughlin  v.  Me- 
notti,  89  Cal.  354,  26  Pac.  Rep.  880. 

Parties  purchasing  under  state  locations 
in  township  2,  south,  i  east,  since  June  10, 
1865,  had  official  record  notice  of  the  right 
of  the  railroad  company,  for  the  map  filed 
in  the  office  of  the  register  of  the  local  land 
office  had  distinctly  endorsed  upon  it  in 
red  ink  the  following,  viz.:  "The  odd-num- 
bered sectipns  on  this  plat  arc  granted  to 
the  Western  Pacific  railroad."  United 
States  V.  Curtner,  14  Saivy.  (U.  S.)  535,  38 
Fed.  Rep.  i ;  reversed  in  149  U.  S.  662,  13 
5//i»   Ct.  Re*.  1041. 

Under  section  7  of  the  act,  the  route  of 
railroad  was  definitely  settled,  so  that  the 
grant  attached  when  a  map,  approved  by 
the  directors,  designating  the  route  of  the 
proposed  road,  was  filed  with  the  secretary 


of  the  interior ;  and  no  adverse  right  could 
be  initiated  between  the  time  it  was  so  filed 
and  the  time  when  the  notice  of  the  order 
withdrawing  the  lands  were  received  at  the 
local  land  office.  McLaughlin  v.  Menotti, 
89  Cal.  354,   26  Pac.  Rep.  SSo. 

The  lands  having  been  disposed  of  to  the 
railroad  company,  the  land  department  iiad 
no  jurisdiction  to  transfer  them,  and  its  list- 
ing  thereof  to  the  stale  was  inoperative  and 
void  ;  and  the  facts  showing  such  invalidity 
are  admissible  in  an  action  of  ejectment  by 
the  grantees  of  the  railroad  company 
against  a  defendant  claiming  under  the 
state.  McLaughlin  v.  Menotti,  89  Cal.  354, 
26  Pac.  Rep.  880. 

08.  Validity  and  effect  of  patents. 
— The  patent  issued  under  the  congressional 
grant  is  only  a  convenient  instrument  of 
evidence  that  the  conditions  have  been  per- 
formed and  the  title  vested.  Francoeur  v. 
Neiv house,  40  Am.  &*  Fng.  R.  Cas.  439,  40 
Fed.  Rep.  618. 

An  exception  inserted  in  a  patent,  which 
is  not  authorized  by  the  statute  to  be  in- 
serted, is  void.  Francoeur  v.  A'dvhouse,  40 
Am.  &'  Eng.R.  Cas.  439,  40  Fed.  Rep.  618. 

Where  a  patent  is  issued  for  land  which 
has  before  been  granted  to  other  parties, 
and  there  is  no  interest  left  in  the  govern- 
ment to  grant,  the  interior  department  acts 
without  jurisdiction,  there  being  nothing  in 
the  United  States  to  grant,  and  the  patent 
so  issued  is  void,  and  may  be  collaterally 
impeached.  Francoeur  v.  Neivhouse,  40  Am. 
(S-  Eng.  R.  Cas.  439,  40  Fed.  Rep.  6 1 8. 

Patents  issued  to  the  Central  Pacific 
company  for  any  sections  east  of  range  6 
within  the  boundaries  of  the  Mosqiielamos 
grant  are  valid,  there  being  enough  land 
west  of  range  7  to  satisfy  the  floating  grant 
of  eleven  square  leagues.  United  Statis  v. 
McLaughlin,  1 27  U.  S.  428,  8  Sup.  Ct.  R,p. 
1 177.— Approved  in  Carr  v.  Quigley,  149 
U.  S.  652.  Reviewed  in  United  States  j'. 
Curtner,  14  Sawy.  (U.  S.)  535;  United 
States  V.  Southern  Pac.  R.  Co..  14  Sawy. 
620. 

<M>.  KlKlitNofMettlersand  pre-eui|>- 
tloiierH.— The  confirmatory  act  of  Jidy  23, 
1 866,  does  not  apply  to  lands  withdrawn  from 
sale ;  but  conceding  that  it  does,  it  wou'd  he 
a  nullity  as  to  the  lands  granted  and  with- 
drawn from  sale  under  the  Pacific  railroad 
acts.  Congress  could  not,  after  the  com- 
pany had  accepted  tlic  terms  of  the  acts  of 
1862  and  1864,  and  acted  upon  them,  divest 


LAND   GRANTS,  70-72. 


1C7 


it  of  its  right  in  the  lands.      McLaughlin  v. 
Menotti,  89  Cal.  354,  26  Fac.  Rep.  880. 

The  question  whether  a  prior  settler  upon 
lands  included  within  the  grant  to  the  rail- 
road company  is  a  bona  fide  settler,  within 
the  meaning  of  the  act  of  1864,  is  a  question 
of  fact ;  and  the  failure  of  the  court  to  find 
the  ultimate  fact  oiabonafiJe  settlement  in 
an  action  of  ejectment,  where  such  a  settle- 
ment is  relied  on  by  the  defendant  to 
defeat  the  title  of  the  railroad  company, 
leaves  the  question  as  to  which  party  has 
the  better  title  uncertain  and  unsettled,  and 
is  error  entitling  the  defendant  to  a  new 
trial.  McLaui^hlin  v.  Menotti,  89  Cal.  354, 
36  Pac.  Kep,  8S0. 

b.  Northern  Pacific. 

70.  The  tyrant  is  in  prteNCiiti.— The 

donation  of  land  under  the  act  of  July  2, 1864, 
was  a  grant  in  prasenti,  and  took  effect  as 
of  that  date  upon  the  subsequent  location 
by  the  company  of  its  road,  and  approval 
thereof  by  congress.  United  States  v. 
Northirn  Pac.  R.  Co.,  14  Sawy.  (U.  S.)  401, 
41  Fed.  Refi.  842.  Washington  **  /.  A'.  Co. 
V.  Northern  Pac.  R.  Co.,  38  Am.  &*  Eng.  R. 
Las.  670,  2  Ji.'ii/io  513.  21  /'./..  Rep.  658. 
Xnrthern  Pac  R.  Co.  v.  /./'//>',  24  Ant.  <S«» 
luig.  R.  Cas.  n  1 , 6  Afont.  65.9  Pac.  Rep.  889. 

The  act  of  July  2,  1864,  operated  as  a 
fjrant  in  prasenti,  notwithstanding  the 
provisions  in  the  act  that  the  land  was  to  he 
earned  by  conditions  subsequent,  and  the 
issuing  of  patents  for  the  land  as  the  road 
should  be  constructed.  Northern  Pac.  R. 
Co.  V.  Majors,  14  Am.  <S^  P-ng.  11.  Cas.  487, 
5  Mont.  Ill,  2  Pac.  Rep.  322.  —  DlsriN- 
r.uisHiNfi  Rice?'.  Minnesota <%  N.  W.  R.Co.. 
I  Black  (U.  S.)  358.  Qu<)TiN(;  Leaven- 
worth, L,  &  G.  R.  Co.  7'.  United  States,  92 
U.  S.  733;  Missouri,  K.  &  T.  R.  Co.  ?'. 
Kansas  Par.  R.  Co.,  97  U.  S.  491;  St. 
Joseph  A  D.  C.  R.  Co.  7>.  Baldwin,  103  U. 
S.  427.-D1sriNf.u1.snKt)  IN  Northern  Pac. 
K.  Co.  v.  Lilly,  6  Mont.  65.  Rkvik.wku  IN 
United  States  v.  Northern  Pac.  R.  Co.,  6 
Mont.  351. 

7  I.  Contrary  dortriiic.  —  By  the  act 
of  July  2,  1864,  the  odd-numbered  sections 
along  the  line  of  the  Northern  Pacific  R. 
Co.  for  forty  miles  on  either  side  of  the 
line  in  the  territories  and  twenty  miles  in 
the  states,  are  set  apart  and  devoted  to  the 
construction  of  the  road  of  said  corporation  ; 
but  said  act  is  not  a  present  grant  of  said 
lands  to  said  corporation,  but  only  in  effect 


an  agreement  or  provision  that  the  same 
shall  be  conveyed  to  it  absolutely,  when  and 
as  fast  as  any  twcnty-tive  miles  of  said  roiid 
is  constructed  and  accepted  by  the  United 
States;  and  in  the  meantime,  the  legal  title 
to  the  unearned  and  unpatented  sections  is 
in  the  United  States,  who  may  therefore 
maintain  legal  proceedings  against  any  one 
that  unlawfully  cuts  timber  thereon.  United 
States  V.  Childers,  8  Sa7vy.  iU.  S.)  171,  12 
Fed.  Rep.  586.— AlM'RoVKU  IN  United  States 
V.  Bransteen,  13  Sawy.  64.  DiSAl'i'KOVKlJ 
IN  Denny  v.  Dodson,  13  Sawy.  68.  Dis- 
TiNdUisHKii  IN  United  States  v.  Ordway, 
12  Sawy.  275. 

The  grant  does  not  give  the  corporation 
any  such  present  right  to  or  interest  in  any 
one  of  such  sections  as  authorizes  it  to  waste 
the  same,  by  disposing  of  timber  thereon 
before  it  is  earned  by  the  construction  of 
the  section  of  the  road  adjacent  and  oppn- 
site  thereto.  United  States  v.  Ordway,  12 
Sawy.  (  U.  S.)  275,  30  Fed.  Rep.  30.— Disi  i:>- 
iit'isiiiNG  United  States  -'.  Childers,  8 
Sawy.  171.  Foi.LowiNf;  Buttz  V.  Northern 
Pac.  R.  Co.,  119  U.  S,  55,  7  Sup.  Ct.  Rep, 
100. 

On  the  constri'''tion  and  acceptance  0/ 
any  section  of  the  road  of  the  Northern 
Pacific  railway  company,  the  coterminous 
odd  sections  vest  absolutely  in  the  cor|K>ru- 
tion,  and  tiiereafier  the  patent  therefor  may 
be  considered  as  having  issued.  I'nited 
States  \'.  Ordway,  12  Sawy.  {U.  S.)  275,  30 
Fed.  Rep.  30. 

7tS.  >Vli«'ii  and  wlntt  title  paHHCM.— 
The  title  of  the  Northern  Pacific  R.  Co. 
to  the  lands  granted  it  by  the  act  of  July  2, 
1864,  vested  in  the  company  upon  the  desig- 
nation by  it  of  the  route  of  its  road,  irre- 
spective of  the  fact  that  no  patent  had  been 
issued  therefor.  Northern  Pac.  R.  Co.  v. 
Cannon,  46  .,-////.  &>  Eng.  R.  Cas.  419,  46 
Fed.  Rep.  224.— QuoriNd  Kansas  Pac.  R. 
Co.  V.  Prescott,  16  Wall.  (U.  S.)6o8;  Union 
Pac.  R.  Co.  V.  McShane.  22  Wall.  444; 
Northern  Pac.  R.  Co.  v.  Traill  County,  1 1 5 
U.  S.  600.  6  Sup.  Ct.  R^t-.  201  ;  Wisconsin 
C.  R.  Co.  V.  Price  County.  133  U.  S.  509,  lo 
Sup.  Ct.  Rep.  341.— Ai'Pi.iKn  in  Northern 
Pac.  R.  Co.  V.  Amacker.  46  F'ed.  Rep.  2^3 

Upon  full  compliance  wiili  the  wx\w~  •■{ 
the  grant,  so  far  as  certain  lands  in  tliisst..iir 
are  concerned,  the  company  bocaino  cniitUd 
to  a  complete,  perfect,  and  absolute  title  to 
the  same,  and  to  receive  the  proper  evidence 
of  such  title  from  the  United  States;  that 


t 

''A 


-■^^ 


l(ilS 


LAND   CiKANTS,  73-7rt. 


«1 


"fit 


thereupon  the  lands  ceased  to  belong  to  the 
United  Slates,  and  became  subject  to  the 
lax  laws  i)i  this  state,  and  the  company 
IviviiiK  contracted  to  sell  tlic  same,  they 
wore  projjerly  taxaljlt;  under  sueli  laws. 
Ldss  Coiintv  V.  Morriioit,  5  Am.  cr^  /:«<,'.  A'. 
Ciis.  404.  28  Minn.  257.  9  X.  W.  /w/.  761. 

The  provision  of  tlie  Act  of  Congress, 
passed  in  1870,  re()uirinjj[  the  company,  as  a 
e. Midition  precedent  to  its  ri>;ht  to  |>atents 
fur  snci)  lands,  to  pay  tiiecost  of  surveying, 
seiectinj^,  and  conveying;  the  same,  was  an 
iittompt  to  attach  a  new  condition,  not 
f<jund  in  tile  original  grant,  to  the  com- 
pany's right  to  tlie  lands,  and  to  the  evi- 
dence of  the  title  to  the  same  which  c<jn- 
gress  had  no  power  to  impose,  as  its  elTect 
woidd  be  to  deprive  the  company  of  |)rop- 
erty  rights.  Cass  Comity  v.  Alorrnon,  5 
Am.  (^  EtifT,  A'.  Cas.  404,  28  A//iifi.  257, 
9  .V.  //'.  /»'<•/».  761.— DisiiNGUisiiixi;  Kan- 
sas P.ic.  K.  Co.  7'.  Prescott,  16  Wall.  (U.  S.) 
603 ;  Union  Pac.  R.  Co.  v.  McShane,  22 
W.dl.  444. 

Where  the  company  lias  the  legal  title  to 
lands  granted  it  by  the  United  States,  but  is 
not  in  possession,  a  bill  by  it  to  determine 
the  adverse  claim  of  a  party  holding  the  land 
under  an  invalid  patent  issued  pursuant  to 
an  entry  of  the  land  as  a  mining  claim, 
wiiere  it  was  valuable  only  for  agricultural 
purposes,  is  demurrable,  as  failing  to  show 
ground  for  equitable  relief.  i\'orthep-n  J\ic. 
J\'.  Co.  V.  Cannon,  46  Am.  «3^  E'ti^'  A'.  Cas. 
419.  46  Fed.  A'(/.  224. 

7J1.  Title  ifood  witlKMit  .survey.— 
The  grant  conveyed  an  immediate  title 
which  attaclied  to  the  particular  land  when 
the  road  was  definitely  located,  so  that  an 
individual  could  not  claim  title  to  such  land 
even  before  a  survey  was  made.  Northern 
Pac.  A'.  Co.  V.  Lilly.  24  Am.  &"  Eng.  R.  Cas. 
111,6  Mont.  65,  9  Pac.  Kep.  889. 

The  Northern  Pacific  railroad  company 
had  conveyed  167  acres  of  the  land  included 
within  its  grant,  to  the  respondent,  who  in- 
closed it  within  a  fence,  although  there  had 
never  been  any  survey  of  the  tract  by  the 
government.  Proceedings  were  instituted 
against  him  unrier  the  Act  of  Congress  of 
February  25,  i8t)5,  entitled  "  An  act  to  pre- 
vent unlawful  occupancy  of  public  lands," 
to  compel  the  removal  of  his  fences.  Held. 
that  said  land  was  not  "  public  land  of  the 
United  States."  United  States  v.  Godwin, 
7  Mont.  ^.02.  16  Pae.  Rep,  850. — Foi.i,owiNci 
Northern  Pac.  R.  Co.  v.    Majors,  5  M«nt. 


in;  Northern  Pac.  R.  Co.  v.  Lilly,  6  Mont. 
65;    United    States   %>.    Williams.   6   Mont. 

379- 

74.  Grant  is  a  "  float "  until  loca- 
tion ol"  route.  -The  act  operated  as  a 
grain  in  prusenti,  in  the  nature  of  a  float, 
until  the  route  should  be  determined,  and 
then  attaching  to  the  sections  specified. 
And  the  nature  of  the  grant  as  thus  dclined 
is  not  alTected  by  a  (irovision  in  section  4  au- 
thorizing patents  to  i.ssue  for  the  lands  on 
either  side  of  every  25  miles  of  road  com- 
pleted. St.  Paul  &*  /'.  A".  Co.  V.  A'ort/iern 
J'ac  A'.  C'r^,  139  I'.  S.  1,11  Sup.  Cl.  Rip.  389. 
—  Ful.l.DWiNd  Schulunberg?'.  Harriman,  21 
Wall.  (U.  S.)44;  Leavenworth,  L.  &  G.  R. 
Co.  V.  United  Slates,  92  U.  S.  733  ;  Mi.ssouri. 
K.  &  T.  R.  Co.  V.  Kansas  Pac.  R.  Co..  97 
U.  S.  491  ;  Si.  Jose|)li  »N:  D  C.  R.  Co.  v. 
Haldwiii,  103  U.  S.  426;  Rice  ?'.  Minnesota 
&  N.  \V.  R.  Co.  1  Black  (U.  S.J  35S.  — Foi.- 
l.oWKH  IN  United  Slates  v.  Southern  Pac. 
R.  Co.,  146  U.  S.  570;  Northern  Pac.  R.  Co. 
V.  Wright,  51  Fed.  Rep.  68.  —  American 
I'.mif^rant  Co.  v.  L/iicaj;o,  R.  J.  &*  P.  R.  Co., 
47  /owa  515.— Qi;mi  iNc;  Rurlingtoii  iV  M. 
R.  R.  Co.  7'.  Fremont  County,  9  Wall.  89.— 
Stewart  v.  Alt  stock,  12  Ore^.  182.  29  Pac. 
Rep.  553. 

Accordingly  lands  wiihin  the  limit  of 
such  grant  are  iioi  to  be  considered  as 
withdrawn  from  sale  or  entry  until  the  line 
of  tiie  road  was  so  definitely  fixed.  North- 
ern Pac.  A'.  Lo.  V  .<aiid  r^.  46  Am.  i-~»  l:ni;. 
R.  Cas.  431,  46  l-,d.  ImP.  239;  ajlirmed  on 
rehear in^i^  in  47  icii.  J^ep.  (04;  ajlirmed  on 
ti'rit  0/ error  in  49  I'cd.  Ai'/'.  129,  I  C.  C.  A. 
192,  7  I'.  S.  App.  47.— yuoriNd  Dubuque 
&  P.  R.  Co.  7'.  Litchfield,  23  How.  (U.  S.) 
66. 

The  Norihcrn  Pacific  railroad,  having 
been  located  and  constructed  according  lo 
law  through  the  stale  of  Minncsotii.  is  en- 
tilled  to  the  lands  granted  it  in  place  along 
its  line,  and  to  others  to  make  up  deficien- 
cies, unatTecied  bv  any  prior  grant  lollic  St. 
Paul  \-  Pacific  railroad.  St.  Paul  &^  /'.  A'. 
Co.  v.  i\ or  them  Pac.  R.  Co.,  139  T.  S.  i,  11 
Sup.  Ct.  Rep.  389. — FoLl.oWKh  i.\  Southern 
l»ac.  R.  Co.  7'.  Araiza,  57  Fed.  Rep.  9t> ; 
Northern  Pac.  R.  Co.  7-.  liardcn,  51  Am.  \' 
Eng.  R.  Cas.  236,  46  Fed.  Rep.  592.  guo  iT.o 
IN  Northern  Pac.  R.  Co.  ?'.  Sanders,47  Fed. 
Rej).  604. 

75.  FIxInjfroute-Cliolee  of  routes. 
—The  general  route  of  the  Northern  Pacific 
railroad   may  be  considered  as  fixed,  when 


>'i»7i'_)'. 


'1^ 


LAND   GRANTS,  70-80. 


160 


its  general  course  and  direction  was  deter- 
mined, after  an  actual  examination  of  the 
lOUMiry,  or  from  a  i<nowledgc  of  it,  and  it 
is  di;si(,'niiieil  by  a  line  on  a  map  showing 
liie  general  features  of  tlic  adjacent  coun- 
trv.  and  the  places  through  or  hy  which  it 
will  pass.  Hulls  v.Northtrn  Pac.  A\  Co.,  29 
.  Iiii.  ^  AV/ji,'^  A'.  Cas,  455,  1 19  C/.  S,  55,  7  Su^. 
I  I.  R,p.  100. 

The  act  of  1864  provided  for  a  survey  by 
ilie  government  and  withdrawal  of  lands 
from  sale  or  pre-emption  when  a  "general 
loiiie  "  of  the  road  should  be  fixed.  Held, 
that  it  was  not  necessary  that  the  general 
route  over  the  whole  distance  should  be 
fixed,  but  it  was  a  sutFicicnt  compliance 
with  the  law  if  enough  was  fixed  to  intelli- 
gnntly  guide  the  officers  of  the  government 
i  I  locating  the  lands,  and  issuing  patents 
therefor.  St.  Paul&*  l\  A'.  Co.  v.  Xorthcm 
I'iU.  R.  Co.,  139  U.  S.  1,11  Sup.  Ct.  Rep.  389. 

The  act  authorized  a  continuous  line 
fr(jni  Lake  Superior  westerly,  by  the  most 
L'iiL;il)le  route,  to  be  determined  by  said 
company,  within  the  United  States,  and  on 
a  line  north  of  the  forty-fifth  degree  of 
latitude,  to  some  point  on  Puget  Sound, 
with  a  branch  via  the  valley  of  the  Colum- 
bia river  to  a  point  at  or  near  Portland, 
Orig.  Held,  that  it  was  optional  with  the 
company  whether  it  would  build  the  branch 
to  Portland  ;  the  clause  giving  it  authority 
to  do  so  did  not  limit  its  right  to  choose 
any  route  within  the  prescribed  limits  be- 
tween Lake  Superior  and  Puget  Sound. 
United  Slales  v.  Northern  Pac.  A'.  Co.,  14 
Siivy.  (  U.  S.)  4or,  41  Fed.  Rep.  842  ;  reversed 
in  152  U.  S.  284,  14  Sup.  Ct.  Rep.  598. 

7«.  Width  of  the  ifraiit.-Thc  loca- 
tion of  the  line  of  the  road  in  a  state  or 
tpirltory  determines  the  width  of  the  grant 
—whether  of  ten  or  twenty  alternate  sec- 
tions— without  reference  to  the  fact  of 
whether  the  grant  includes  lands  within  the 
limits  of  a  state  or  not.  Denny  v.  Dodson, 
13  Snwy.  (  U.  S.)  68,  32  Fed.  Rep.  899. 

77.  Sclvctioii  of  defioic'iivy  or  lii- 
(l«'iiiiiity  Iniids.— The  joint  resolution  of 
con;,'ress  of  May  31,  1870,  operated  to  give 
the  company  an  additional  ten-mile  indem- 
nity limit,  and  did  not  restrict  the  indem- 
nity to  losses  occurring  subsequent  to  the 
ori);inal  grant,  and  to  lands  situated  in  the 
stale  or  territory  in  which  the  loss  occurs. 
A'ort/urn  Pac.  R.  Co,  v.  United  States,  36 
/•■(■(/.  Rep.  282.— Quoting  United  States  r. 
R  irlintjton  &  M.  K.  R.  Co.,  98  U.  S.  341. 


The  approval  of  the  secretary  of  the  in- 
terior was  not  necessary  to  the  vesting  of 
the  title  to  lands  selected  by  the  company 
to  make  up  the  defi(  iency  in  the  lands 
within  the  forty-mile  limit,  under  the  grant 
to  it  of  July  2,  1864,  and  the  subsequent  reso- 
lutifjii  of  congress.  Xort/ierii  Pii. .  K.  Co, 
V.  liariies,  33  //«i.  &^  Fug.  A*.  Cas.  (>\G,  2  .\'. 
Dai:.  310,  51  A'.  //'.  Rep.  3S6.  — I'oi.i.uwiii 
IN  Northern  Pac.  K.  Co.  v.  Harnes,  2  .S'. 
Dak.  395 ;  Northern  Pac.  R.  Co.  v.  Strong, 
2  N.  Uak.  395  ;  Northern  Pac.  K.  Co,  v, 
Hrewer,  2  N.  Dak.  396;  Northern  Pac.  U. 
Co.  7'.  Tresslei,  2  N.  Dak.  397. 

78.  FiliiiK  iiia|i,  and  its  effect.  — 
When  the  general  route  of  the  road  pro- 
vided  (or  in  the  act  of  July  2,  1864,  ji  6,  was 
fixed,  and  iiiformati(jii  thereof  was  given  to 
the  land  department  by  the  filing  of  a  map 
thereof  with  the  secretary  of  the  interior,  the 
statute  withdrew  from  sale  or  pre-eiiipti<jn 
the  odd  sections  to  the  extent  of  forty  miles 
on  each  side  thereof;  and,  by  way  of  pre- 
cautionary notice  to  the  public,  an  executive 
withdrawal  was  a  wise  exercise  of  authority. 
liiiltz  V.  iXorl/iern  Pac.  R.  Co.,  29  ./w. 
&*  Eng.  R.  Cas.  455,  119  I/.  S.  55,  7  Sup. 
CI.  Rep.  ifxj.  Denny  v.  Dodson.  13  Sajvy, 
(  U.  S.  )  68,  32  Fed.  Rep.  899.  Lnited 
Stat:'s  V.  Xorlhern  Pac.  R.  Co.,  14  Savy. 
(  U.  S.)  401,  41  Fed.  Rep.  842. 

And  no  subsequent  neglect  of  the  secre- 
tary could  atlect  the  rights  of  the  company. 
United  States  v.  Northern  Pac.  R.  Co.,  14 
Saicy.  (  U.  S.  )  401,  41   Fed.   Rep.  842. 

70.  Coiistriiiii)j:tlie  t;raiit.— Exc«>p- 
tioiiN. — The  provision  in  the  act  of  July 
2,  1864,  excepting  from  the  gr.int  all  sub- 
sequent grants  prior  to  the  definite  location 
of  its  road— //<•/</.  not  to  cover  other  grants 
for  the  construction  of  roads  of  a  similar 
character.  .SV.  Paul  &*  P.  R.  Co.  v.  North- 
ern Pac.  A'.  Co.,  139  U.  S.  I,  II  Sup.  Ct. 
Rep.  389. 

H(K  MiiH'ral  and  iion-niiiioral 
lands. — Mineral  lands  were  excluded  from 
the  operation  of  the  grant,  and  such  lands 
were  not  withdrawn  from  sale  prior  to  the 
definite  fixing  of  the  line  of  the  road  and 
filing  a  plat  thereof  in  the  general  land 
olHce.  Northern  Pac.  R.  Co.  v.  Cannon,  54 
Fed.  Rep.  252,  7  U.  S.  App.  507,  4  C.  C.  A. 
303  ;  aj/irnting  46  Fed.  Rep.   237. 

So  where  patents  were  issuerl  to  individ- 
uals for  land,  as  mineral  land,  before  the 
line  of  the  road  was  definitely  fixed,  the 
company  did  not  take  title,  and  cannot  main- 


^r- 


7i-f 


iro 


LAND   GRANTS,  81-8:i. 


J' 


mi 


tain  a  bill  in  equity  to  quiet  its  title  simply 
because  the  lands  are  within  the  limits  uf  its 
^runt.  Northern  J'ac.  A'.  Co.  v.  Cunnoii,  54 
Fed.  A'./.  252,  7  U.  S.  ////.  507.  4  f.  C.  A. 
303  ;  itjfirnihj,'  46  /•«■</.  A>/».  237. 

Although  such  lands  were  subsequently 
declared  to  be  ajjricultural.  and  the  entries 
as  mining  claims  held  to  be  invalid.  Xorth- 
em  I'ltc.  A'.  Co.  v.  Sauilers,  46  Am.  i!r*  Kii^. 
A'.  Ciis.  431,  46  /•■«/.  A'ep.  23y;  ajfirmed  on 
re/iearitij,^  in  47  Fed.  Rep.  604  ;  nfftrmeil  on 
writ  of  error  in  49  Fed.  Ke/>.  1 29,  7  U.  S. 
App.  47.  I  t'.  C.  A.  192. 

The  comi'any  is  not  entitled  to  any  no- 
tice of  an  application  to  patent  mineral  land 
within  the  limits''  of  its  grant,  except  the  gen- 
eral notice  provided  for  by  U.  S.  Rev.  St. 
§  2325.  except  where  it  institutes  a  contest 
under  §  2335  to  determine  the  character  of 
tiie  'and.  Northern  I'lU.  A'.  Co.  v.  Cannon, 
54  hed.  Rep.  252,  7  U.  S.  App.  507, 4  C.  C.  A. 
303 ;  affirming  46  Fed.  Rep.  237. 

When  government  surveyors  report  the 
lands  as  non-mineral,  the  title  of  the  com- 
pany attaches,  so  that  the  lands  become  sub- 
ject to  taxation,  even  before  patents  are 
issued  therefor.  Northern  Pac.  R.  Co.  v, 
Wright,  54  Fed  Rep.  67,  7  U.  S.  App.  502.  4 
C.  C.  A.  193  ;  affirm i>^  51  Fed.  Rep.d'i. 

81.  ItiKlitH  of  Hctth'rM  uihI  prn- 
ciiipturM.  —That  part  of  section  3  of  the  act 
which  exceptsfrom  the  grant  lands  reserved, 
sold,  granted,  or  otherwise  appropriated,  and 
to  which  a  pre-emption  and  other  rights  .mrl 
claims  have  not  attached,  when  a  map  of 
definite  location  has  been  tiled,  does  not  in- 
clude the  Indian  right  of  occupancy  within 
such  "  other  rights  and  claims,"  nor  does 
it  include  pre-emptions  where  section  6  de- 
clares that  the  land  shall  not  be  subject  to 
pre-emption.  liuttz  v.  Northern  Pac.  R.  Co., 
29  Am.  <&«•  Etig.  R.  Cas.  455,  119  6^.  S.  55, 

7    Sup.    Ct.    Rep.     100.— DiSTINdUISHKI)   IM 

Northern  Pac.  R.  Co.  v.  Sanders,  47  Fed. 
Rep.  604;  Northern  Pac.  R.  Co.  7>.  Sanders, 
49  Fed.  Rep.  129.  7  U.  S.  App.  47,  1  C.  C.  A. 
192.  FoLl-OWKD  IN  Southern  Pac.  R.  Co.  v. 
Araiza,  57  Fed.  Rep.  98. 

The  grant  did  not  give  the  company  title 
to  lands  for  which  a  pre-emption  certificate 
had  already  issued ;  and  the  fact  that  the 
certificate  was  subsequently  canceled  only 
operated  to  restore  the  land  to  the  public 
domain,  and  did  not  give  the  company  title 
thereto.  Bardon  v.  Northern  Pac.  R.  Co., 
145  U.  S.  535,  12  Sup.  Ct.  Rep.  856.— 
Applying  Leavenworth,  L.  &  G.  R.  Co.  v. 


United  States,  92  U.  S.  "JH.  ReviewINO 
Kansas  Pac.  R.  Co.  v.  Dunmeyer,  113  U.  S. 
629. 

No  person  settling  an<l  making  improve- 
ments upon  the  odd  sections  after  the  sur- 
vey would  get  any  rigiits  as  a  settler  or 
pre-enjptor,  as  against  the  United  States  or 
the  railroad  company,  either  under  section 
2281  of  the  U.  S.  Rev.  St.,  or  the  provision 
of  the  act,  such  lanfls  nevfr  liavini:  been  sub- 
ject to  sale  or  pre-empti<jn.  Northern  Pac, 
R.  Co.  v.  I'eronto,  10  .,-////.  &*  Fng.  A'.  Cat. 
670,  3  /Ja/:.  217,  14  A'.  II'.  Rep.  103. 

The  defendant  having  settled  upon  the 
land  in  question  after  tlu-  passage  of  the  act, 
while  it  was  Indian  territory,  near  the  line 
of  the  road,  witnessing  the  construction  of 
the  track,  had  actual  knowledge  of  the  deli- 
(lite  line  of  said  road,  and  cannot  now  object 
that  notice  was  not  sooner  given  by  the  fil- 
ing of  the  plat  of  such  definite  line  in  the 
office  of  the  commissioner  of  the  general 
laiul  office,  nor  be  regar<led  as  a  6ona  fide 
settler  or  |)re-emptor  in  any  sense.  North- 
ern Pac.  A'.  Co.  v.  Peronto,  10  Am.  &*  Fug. 
R.  Cas.  670,  3  Dat.  217,  14  A-.  II'.  Rep.  103. 

82.  .Sulu  or  «'ii<Miiiibruiic«t  of  liiiid 
IfraiitJ'd.— The  grant  is  a  present  one.  ami 
passes  til-  legal  title  to  the  gr.intec;  but 
the  corporation  is  not  authori/.ed  to  dispose 
of  or  encumber  the  land  without  the  <<>n- 
seni  of  congress,  except  the  earned  portions 
lying  opposite  10  any  twenty-five-mile  sec- 
tion of  the  road,  after  the  construction 
thereof,  and  the  acceptance  rjf  the  same  by 
the  United  States.  Denny  v.  Dodson.  13 
.S(i7<')'.  (U.  S.)6»,  32  Fed.  Rep.  899.— I>is.\i'- 
l'K(iVlN>;  United  States?/.  Childeis,  «  .Sa«y. 
171.  Fxi'l.AlNiNc;  Rice  7A  Minnesota  \  N. 
W.  R.  Co.,  I  Black  (U.  S.)  358.  gtroriN*; 
Leavenworth,  L.  &  (j.  R.  Co.  7/.  United 
States,  92  U.  S.  741.  REcnNtii.iNC.  North- 
ern Pac.  R.  Co.  7>.  Traill  County,  115  U.  S. 
601. 

8:).  KorfV'itiir4>  lor  lir<>ac'li  ol  coii- 
dltloiiH.  ♦— The  condition  attached  to  the 
grant  that  the  road  shall  be  completed  liy 
a  day  named  is  a  condition  subsequeiit, 
for  a  breach  of  which  no  one  but  the  u^v 
ernnicnt,  the  grantor,  can  claim  a  forfeiture, 
and  the  title  of  the  com|>any,  though  i\<-- 
feasible  in  the  meantime,  is  still  the  leeal 
one,  on  which  it  may   maintain  ejectment 

•  Failure  on  part  uf  companv  to  earn  l.imU 
by  perforniinK  cnndiiions  of  grant,  lee  40  A.M. 
&  n.N(;.  R.  Cas.  448,  ,i/>ttr. 


LAND   GRAMS,  84- s7. 


171 


agninst  any  intruder  or  trespasser.  Denny 
V.  Doiison,  13  Sii7uy.  (U.  S.)  68,  32  i-'vii.  Kip. 
Hijij.  Northern  J'ac.  A',  Co,  v.  J'eronto,  10 
Am.  6-  AV/i'.  A'.  Cas.  670.  3  Dak.  217,  14  iV. 
IV.  Rep.  103. 

f.  Southern  Pacific. 

H4.  Validity— Wliiit  title  |ihhnc(I.— 

The  laiul  granted  to  tlie  Southern  I'acific 
Kailvvay  Compuny  of  California,  under  the 
Act  of  Conj^ress  of  March  3,  1871,  incorporat- 
ing; tlic  Texas  Pacific  Ky.  C^>.,  is  valid  ;  and  a 
road  havini;  heen  completed  from  Tehach- 
a|>i  Pass,  alon^  the  line  provided  for,  to  the 
Colorado  river,  as  required  by  the  act,  the 
litic  to  the  lands  ^{ranted  has  fully  vested  in 
the  Souiliern  Pacific  Ky.  Co.  of  California. 
SoutJtern  I'm.  A'.  Co.  v.  J'oo/e,  1 2  Sawj:  ( I/.  S.) 
5j8.  32  /-e,/.  Ktp.  451. 

Section  23  of  said  act  (18  St.  579)  grants 
to  the  Southern  Pacific  K.  Co.  of  California 
"  the  same  rights,  grants,  and  privdegt-s  as 
were  granted  to  the  same  company  by  the 
act  of  July  27,  1866,  incorporating  tlie  At- 
lantic &  I*acific  K.  Co.  "  And  those 
"rights,  grants,  and  privileges"  were  the 
same,  along  its  authorized  line,  as  were 
granted  to  the  Atlantic  &  Pacific  R.  Co. 
Southern  J'ac.  A'.  Co.  v,  J'oole,  12  Sa^uy. 
(C.  S.)  538.  32 /W.  AVA451. 

Tile  original  articles  of  association  of  the 
Southern  Pacific  R.  Co.  of  California  did 
not  specify,  as  one  of  the  objects  of  the  in- 
corporation, the  construction  of  a  line  of 
railroad  from  Tchachapi  I'ass  to  the  Col- 
orado river,  in  the  southeastern  part  of 
the  slate ;  but,  at  the  time  of  the  passage  of 
the  Act  f)f  Congress  of  1871,  incorporating 
tiie  Texas  Pacific  R.  Co.,  there  was  in  force 
the  act  of  the  legislature  of  California  of 
March  i,  1870,  authorizing  any  corporation 
then  existing,  or  thereafter  to  be  formed,  to 
amend  its  articles  of  association  by  making 
and  filing  amended  articles  in  th"  s.-tme 
olFiee  where  the  originals  were  filed  ;  also, 
a  statute  authorizing  railroad  corporations 
to  (onsolidate  with  each  other.  And  the 
articles  of  association  of  said  company  were 
amended  immediately  after  the  passage  of 
the  Texas  Pacific  Act,  so  as  to  embrace  the 
road  therein  provided  for  in  the  objects  of 
the  corporation,  and  the  company  consoli- 
dated with  other  companies  in  pursuance 
of  the  statute.  The  road,  constructed  as 
provided  for  in  the  Texas  Pacific  Act,  was 
thereafter  completed  in  accordance  with 
the  provisions  of  the  act.     HeM,  that  the 


proceedings  were  valid,  and  the  road  after- 
wards Ijuili  was  t.onstructed  in  pursuance 
both  of  the  laws  of  California,  and  of  the 
acts  of  congress,  and  that  the  title  to  the 
lands  granted  vested  in  the  Soutliern  I'.i- 
cific  R,  Co.  of  California  as  it  existed 
after  the  amendment  of  it>  articles  of  asso- 
ciation, and  its  consolidation  with  other 
roads.  Sunt/i.rn  I'ac.  A'.  Co.  v.  /'no/e,  12 
S<niy.  ({'.  5.)  538,  32  /'lit.  AV/.  451.— Rk- 
viKWKl)  IN  United  Slates  t/.  Soutliern  I'ac. 
R.  Co.,  14  Sawy.  620. 

The  filing  of  the  map  of  general  location 
of  the  line  of  the  road  by  the  Southern 
F'aciuc  R.  Co.  of  California,  in  pursuance  of 
the  act  of  congress,  enured  to  the  benefit 
of  the  company  as  it  exi.sted  after  its  con- 
solidation, and  the  amendment  of  its  arti- 
cles of  association  as  the  successor  in  in- 
terest of  the  corporation  as  it  existed  at  the 
time  of  'the  passage  of  the  act  of  con- 
gress, and  of  the  filing  of  said  nuip,  even  if 
the  two  corporations  cannot  be  consid- 
ered as  technically  the  same  corpor.it ion. 
Sout/tern  J'ac.  A*.  Co.  v.  J'oole,  12  Sa'^y. 
(U.  S.)  538,  32 /V,/.  AV/.45'. 

85.  LuimIm  t;raiittMl  —  Width  of 
grant.— The  act  of  July  27,  1866,  was  a 
grant  of  quantity  ;  and  the  grantee,  upon 
accepting  the  grant,  filing  its  map  of  loc.i- 
tion,  and  building  and  equipping  its  road  in 
the  time  and  manner  prescribed  by  the  act, 
was  entitled  to  its  full  complement  of  land  to 
the  amount  of  ten  alternate  sections  per 
mile  on  each  side  of  the  road  so  constructed, 
provided  the  same  could  be  found  either 
within  the  specified  present  grant,  or  in- 
demnity limits.  Southern  J'ac.  A'.  Co.  v. 
U'ti^gs,  43  J-'<i-  ■'>''■/•  333.  '4  Sauy.  (U.  S.) 
568. 

HO.  Kxevptioii  of  land  inrliided  iii 
Mexican  grant.  I'reiniscs  within  the 
boundaries  of  an  alleged  Mexican  grant 
(Rancho  San  Jose)  which  was  sub  jiidice  at 
the  time  the  secretary  of  the  interior  or- 
dered a  withdrawal  of  lands  along  the  route 
of  the  road  were  not  embraced  by  the 
grant  of  congress  to  plaintiff.  Southern 
J'ac.  A'.  Co.  v.  Crampton,  (Cat.)  10  Am.&* 
Eng.  R.  Cas.  613. 

87.  Filing  the  plat  and  itn  effect. 
—The  act  of  March  3,  1871,  in  effect  pro- 
vides that  "there  be  and  hereby  is  granted 
to  the  Southern  Pacific  R.  Co.  of  Califor- 
nia ♦  ♦  *  for  the  purpose  of  aiding  in  the 
construction  of  said  railroad  *  ♦  *  cveiy 
alternate  section  of  public  land,  not  min- 


*       I 


-i 


1¥ 


m 


1 


LAND   {-.RANTS,  SS,  8f». 


cral,  designated  by  odd  nuiiilier  ♦  *  ♦ 
whenever  on  the  line  tiiereof,  the  United 
States  having  full  title,  not  nscrved,  sold, 
granted,  or  otherwise  appropriated,  and  free 
from  pre-empt 'on  oi  other  claims  or  rights 
at  the  time  the  line  .-f  said  road  is  desig- 
nated by  a  plat  thereof,  tiled  in  the  otKce  of 
tilt-  commissioner  of  'he  general  land 
ollice."  //«•/</,  I  hat  sik  i  act  ronstitut(!d  a 
present  grant  that  ccjnl'!  only  be  defi-aied 
by  failure  to  p.irform  the  cotiditiuns  subse- 
quent therein, and  upon  propur  |)r<jceedings 
to  take  advantage  of  such  failure;  that  the 
general  right  to  tiie  land,  s^ubjcct  to  the  ex- 
ceptions found  in  the  act,  vested  at  the  date 
of  the  passage  of  the  act  of  March  3,  NS71, 
a.  I  attached  to  the  specitic  land  at  the  mo- 
meii!  of  the  tiling  of  the  plat  in  the  ollice 
of  the  t<;mmissioiicr  of  the  general  land 
ollice.  Thenceforth  it  was  not  in  the  power 
of  any  otficers  of  the  government  by  any 
a<tion  of  theirs  to  divest  or  in  any  way 
limit  or  modify  the  rights  of  tlie  company 
so  vested.  Soiit/icrn  J'ai.  A.  Co.  v.  J>ii{/,  10 
Saioy-iU.  S.)  506.  22  /<•(/.  AV/.  489,- Di.s- 
I  iN(;uisii|-.i)  IN  Southern  I'ac.  U.  Co.  ?'. 
Tilley,  14  Sawy.  420,  41  Fed.  F<ep.  729. 

Such  congressional  grant  attached  to 
lauds  lying  within  the  e.xierior  limiis  of  a 
Mexican  grant,  but  outside  of  the  limits 
tlieicof  j»s  finally  surveyed,  if  prior  to  the 
d.ite  of  tiling  such  jilat  in  the  oflice  o.'  tiie 
commissioner  of  the  general  land  ofTicv 
the  Mexican  grant  had  been  tinaliy  located. 
Southern  l\xc.  R.  Co.  v.  Dull,  10  Sivvy.  (U. 
S.)  506,  22  /•■»•</.  AV/.  4tS9. 

HK.  (Joiitlitt  with  lioiiH>st<>a<l 
rJjjIitM.— The  act  of  July  27  1866,  does  not 
give  the  company  title  to  indemnity  lands 
which  had  been  patented  as  a  homestead 
bofure  the  company  attempted  to  select  the 
same  as  indemnity  lands.  Southnn  l\u.  A'. 
Co.  \.  TilliY,  41  I'cii.  Ju/>.  729,  14  .v,i7iT.  (U. 
.V)  420.  -  l)isiiN(;uisiiiN(;  Southern  I'ac. 
K.  Co.  ;•.  Oiill.  10  S.iwy.  506.  22  Fed.  Kep. 
4.S9.  -OVKKUt  i.i:i)  i\  .Southern  I'ac.  R.  Co. 
'•.  Arai/a,  57  l'"c'|.  Uc|).  98. 

Hut  lands  within  the  indemnitv  limits  of 
the  company  were  not  open  for  liiimL-.-,tLa(I 
eiiiry  after  an  order  from  the  general  land 
otlice  had  issu'jd  v  ithdrawing  them  from 
eiili  V.  Sout/itTii  I'ac.  A'.  Co.  v.  Aroiza.  57 
Fed.  Rep.  98.-— Foi.i.mviNd  Multz  i'.  N'orlh- 
em  I'ac.  U.  Co.,  119  U.  S.  72,  7  Suj).  Ct. 
Ki'p.  100;  St.  I'.ud  A:  I'.  K.  Co.  v.  Northern 
I'ac.  K.  C<  .,  139  U.  S.  18,  II  Sup,  Ct.  Rep. 
3S9.     OVKKKI  l,i.\(;  Southern  Pac.  R.  Co.?'. 


Tillev.  41  Fed.  Rep.  729.  QlTOTINO  St. 
I'aul'.Si  S.  C.  R.  Co.  V.  Winona  .S:  St.  I'.  R. 
Co.,  112  U.  S.  732.  5  Sup.  Ct.  Rep.  334. 

And  where  an  individual  has  patented 
sucli  lands,  he  oidy  holds  rheiM  \\\  trust  for 
the  railroad  company,  when  the  lands 
within  the  indeinniiy  limits  will  not  make 
up  the  loss  that  the  company  has  sustained 
witliin  the  place  limits  of  the  gri:nt.  South- 
em  /'lie.  A'.  Co.  v.  .hoici,  57  Juif.   Rep.  98. 

Hil.  (UiiiHirt  with  t;niiit  to  At- 
lantic cV  I'acitir.  The  grant  of  land 
under  the  act  of  March  3.  1871,  and  the 
grant  to  the  Atlantic  &  I'aeilic  railway 
under  the  act  of  July  27,  1S66,  were  grants 
/;/  piueuuti,  taking  elTect,  by  rehi.tion,  as  of 
the  dales  of  the  statutes,  when  maps  of  the 
delinite  location  of  the  rcjad  were  filed  and 
approved,  t'liited  States  v.  .'Southern  /',i,. 
R.  Co.,  57  .////.  >;^  A'//i,'.  A'.  Ciis.  316,  146  ('. 
S.  j7o,  13  Su/>.  Ct.  Rep.  152;  revers/iii;  51 
.,-////.  &^  l-'.ii^.  R.  Ciit.  331,  4C)  J'ed.  Rep.  ^183, 
which  iijfinnni  45  Icit.  /up.  51/),  14  S,i7o\. 
f>:o.— Foi  i.owiNC  St.  I'aul  \'  I'.  R.  Co.  t. 
Nortliern  I'.i-.  R.  Co.,  139  I'.  S.  i. 

The  .Atlantic  vS:  I'acilic  i.iilway  tiled  a 
map  (if  a  detiiilte  location  of  the  ruad  from 
the  Colorado  river  to  San  Francisco,  by  way 
«)f  .San  Huenaventura,  claiming  the  right  to 
construct  a  road  the  entire  distance.  /A/,/, 
th.it  the  map  was  a  definite  location  f)f  tin- 
road,  under  the  grant,  from  said  river  to 
San  Huenav<'ntura.  I'liileti  States  w  South- 
ern I'ac.  A'.  Co..  57  ./;//.  >lij  /'V/^r.  A',  Cas. 
316,  146  V.  S.  570,  13  Slip.  Ct.  /\'ep.  152; 
re7'ei s:'ui^r  51  /,„  o^  /.;,,^r  ^>  (^^,5  33 1,  4^) 
/■■<•</.  A'c/.  683,  T. ■///(//  affirmed  45  /-"ed.  R,p. 
596,   14  .S'.Ki'l'    620. 

The  provision  in  the  act  of  March  3, 
1871,  to  tiic  elTect  that  nothing  in  the  grant 
shiiuld  alTect  or  impair  tlie  rights  of  the 
".tlantic  tSi  I'acilic  company  oper.ited  to 
exempt  the  indemnitv  lands  of  tiie  latter 
compaiiv  from  the  giant  of  the  Smitiierii 
Pacific.  I'liited  States  v.  Co/ton  A/,  c^  /.. 
Co.,  57  .//;/.  ii:-.  /:,/ir.  A\  Cis.  341,  146  (\  S. 
«')I5.  13  .Sup.  Ct.  Rep.  163  ;  rroershit;  46  /'ed. 
Rep.  683.  I  'ii/ted  States  v.  Southern  /'ae.  A' 
C'l^,  14  .^avy.  (('.  S.)  60,  39  /'ed.  Rep.  132. 

It  w.is  the  intention  of  the  act  of  July  27. 
1866,  that  the  road  to  whicii  the  grant  was 
made  shoi  V,  connect  with  the  conlcin|)lateil 
Atliiitic  iS;  P.icific  railroad  near  the  ea'^t- 
err  line  of  the  .state  of  Cal.'oriiia,  near  the 
iiwersection  of  ihe  twenty-tif»h  parallel  of 
latitude,  and  run  thence  to  San  Francisco, 
the  location  of  the  road  to  be  determined  bv 


LAND   GRANTS,  UO-UU. 


178 


the  company.    Southern  Pac.  R.  Lo.  v.  Or- 
ion, 32  Fed.  Rep.  457. 
00.  l(it;litHot'Hvttl(>rHi)ii(l  pn>-4>iii|i- 

tloiMTM.  — The  Southern  Pac.  R.  Oo.  lilcil 
its  map  of  (U-fiiiite  location  on  January  3, 
1867,  in  the  olBce  of  the  coniniissioner  of 
the  f^eneral  land  olFice,  showing  the  present 
granted  and  indemnity  hmits  thereon,  wliich 
fjr.mted  and  indemnity  hinits  are  clearly  de- 
fined in  the  act  of  conj^ress  ;  and  the  indem- 
nity hclt  is  particularly  limited  to  specified 
boiind.irics  outside  of  the  j;r.inted  limits. 
Held,  that  upon  filinj^  the  map  of  (lijfinite 
Icaiion. and  upon  the  secretary  of  the  inte- 
rior issuing  his  order  withdrawinij  all  Ian<ls 
witliin  forty  miles  of  the  line  of  the  road, 
the  odd-numhered  scctioi.s.  hoth  within 
tlie  present  granted  and  indemnity  limits, 
were  wilhfirawn  fronj  preem|)tion,  lioine- 
stead  entry,  or  any  other  disposition  hy  the 
jjeneral  land  otricc.     Sout/tirn  l\\i.   A".  Co, 

V.  If'/i;.*;^'  '4 -'»'''«'/.  ((.'.  •'>".l  S^^^'  43  ^'•''^-  /*''/• 
333.  — Kkvikwini;  United  States  f.  Curt- 
ner,  14  Sawy.  535. 

The  statute  itself  in  terms  provides  that 
the  odd  sections  shall  not  be  liable  to  sale 
or  entry  or  pre-emption  other  than  to  the 
C(itn|iany.  Congress  intended  to  withdiaw 
frun)  sale,  entry,  or  pre-emption  .ill  tlioso 
lands  set  apart  within  specilically  (lcliiie(l 
'Limits,  as  well  those  authori/.ed  to  he  se- 
lected as  lieu  lands  as  those  absolutely 
granted,  in  which  the  title  itself  presently 
vi'sled.  The  right  of  selection  indt-feasihle 
by  pre-emptioners,  vested  upon  tiliiii;  the 
ina|)  of  definite  location  and  withdrawal, 
as  provided  by  the  statute,  although  th| 
title  to  the  land  itself  did  not  vest  till  the 
selection.  Sont/wrn  /W,  R.  Co.  v.  "'/i.'j^'J. 
14  SiHty.  (U.  S.)  568,  43  F,d.  Rep.  m. 

The  secretary  of  the  interior  h.id  no  au- 
thority, while  a  deficiency  existed,  to  allow  a 
pre-emption  to  be  made  upon  an  odd  sec- 
tion within  these  indemnity  limits.  Wliile 
such  deficienoy  existed  the  secretary  coidd 
not  throw  open  the  odd  sections  within  the 
indemnity  limits  to  [!re-emption  or  home- 
stead entry.  The  right  of  selection  in  the 
company  to  these  lands  is  given  in  the  stat- 
ute itself,  and  the  secretary  cannot  revoke 
it.  Southern  Par.  R.  Co.  v.  H'/i^yj,  14  Simy. 
yU.  S.)  568.  43  /••,,/.  Rep.  333. 

A  patent  i.ssued  in  the  name  <ji  the  United 
St.ites  to  a  pre-emptoi  enteriig  upon  these 
lands  subsequent  to  the  order  of  with- 
drawal is  erroneously  Issued,  without  au- 
thority of  law,  and  is  void.     The  existen,-e 


<jf  sucii  a  patent  is  a  cloud  \x\utn  the  com. 
plainanl's  title.  It  embarrasses  the  asscr- 
tion  of  complainant's  rii;ht,  and  prevents  ii 
getting  a  patent  to  the  same  land  to  whicli 
it  is  entitled.  Thes(?  circtinistances  cons; i- 
tute  ground  for  etpiitable  r-duf.  A  patent 
so  issued  to  a  pre-emptor  is  void,  and  tlie 
using  of  it  should  be  |ierpetnally  enjoined. 
Southern  I'lie.  A'.  Co.  v.  "V;,y.t,  14  .S'.rr.j. 
(T.  .v.)  568. 

01.  rorffitiirc  for  lirctu'li  ofroiKli- 
t  ions. -The  fact  that  congress  had  re- 
served a  right  to  adopt  such  measures  as  it 
mi;.;ht  deem  neress.'iry  to  secure  the  com- 
plt^tion  of  the  road  upon  failure  of  the  com- 
pany to  complete;  it  <lo«'S  not  prevent  con- 
gress from  declaring  a  forfeiture  of  the  land 
grant  for  such  failure.  Southern  Pac,  R.  (.'(>. 
v.  I'.s(/uil>e/,  36  .Ini.  &^  A";/;'.  /.',  Cas.  410,  4 
A'.  .lA'.r.  }}7,  20  Par,  Rep,  loy. 

d.  Union  Pacific. 

U*2,  How    const riH'il,    i;<>ii4>ra]l.v.— 

Under  the  Aci  of  Congress  of  July  1,  1SO3, 
as  amended,  the  Eastern  Division  of  the 
company  had  a  right  to  c< instruct  its  ro.ui 
to  Denver,  and  thence,  so  as  to  connect 
with  the  MKiin  Ihie,  to  Cheyenne,  with  the 
usual  land  grant  on  each  side  of  its  road. 
The  act  of  March  3,  1869,  authorized  the 
company  to  (onnect  with  the  Denver  Pa- 
cific for  the  coiistr  u  '.i  )ii  of  that  portion  of 
the  line  betweei.  'Icivcr  and  Cheyenne. 
//(•///,  that  the  latter  act  di<l  not  make  the 
ro.id  of  the  Union  Pacific  terminate  at 
Denver  so  as  to  defeat  its  land  grant  beyond 
that  point,  as  the  grant,  under  the  act  of 
1S62,  was  /■;/  prifsenti,  whi.li  iK'c.nr.e  fixed 
as  soon  as  the  road  was  definitely  located. 
The  act  of  1869  did  not  break  the  continuity 
of  the  line.  I 'nited  States  v.  Union  Pae.  R, 
Co.,  14S  f.  .V.  562,  13  .S'up.  Cf.  A',/.  724; 
aflirniini:  yi  Fed.  Rep.  551.  —  Dihli.N. 
c.tJlsflK.i)  IN  United  States?'.  Oregon i%  C.  U. 
Co..  57  Fed.  Rep.  426. 

If  the  court  had  any  doubt  of  the  effect  of 
the  act  of  1869.  it  would  give  great  weight  to 
the  construction  [>laced  upon  it  hy  the  land 
department  for  eighteiii  years,  under  wliich 
lands  had  been  put  upon  the  market  tind 
sold.  United  States  \.  Union  Pae.  A'.  Co., 
148   U.  S.  5^2.  13  Sup.  It,  Rep.  724;  aj/hw. 

'■'V  37  '■•"'•  Rfp'  55'- 

1KI.  TIm>  tillo— Wliat  IiiiiiIm  wctft 
|fraiit«Ml.— The  joint  resohition  of  congress 
of  ftdy  26,  iS^/i.  iiran'ed  to  the  Union  Pa- 
cific  railroad,  and  other  roads  connectinjj 


i 


174 


LAND   GRANTS,  !»4,  »5. 


I 


i  n 


tliurcwith.a  right  of  way  loo  (eet  wide,  and 
autliorized  the  president  tu  ,  set  apart 
"iweniy  acres  (jf  the  Fort  Riley  miliiary 
reservation  for  (Icpot  and  other  purposes 
in  tile  UHloni  opposite  Kilt-y  City;  also 
fractional  section  one  (jn  tiie  west  side  of 
said  reservation  near  Junrtion  City. "  J/f/i/, 
tliat  said  fractional  section  was  to  l>c  fotiti  t 
witliin  the  reservation  on  tile  west  side,  iiol 
outside  atid  hordcrinj;  ilwreon.  A'i'/>tM/(iin 
liivif  J>'r/i(t;i'  ci'.   v.  A'iDiSiis  J'iU\  A'.  Cc,  y2 

U.S.31S.  ' 

Whether  said  joint  resolution  conveyed 
th(>  fee  to  said  fractional  section  or  oidy  a 
use  or  easement,  one  claiming  under  a 
junior  ({rant,  with  a  proviso  that  nothing 
therein  should  interfere  with  "any  grant 
to.iny  part  of  s.iid  land  heretofoie  made  hy 
the  I'liited  States,"  cannot  reiover  such 
hind  in  i-jectnient.  I\i()ubh\an  A'ivrr  />'>/,(,;,• 
L\'.  w  A'iinsiis  I'lii.  A'.  Co.,  ijz  C.  S.  315; 
iij/iriiiiiii;  \z  A'liti.  409. 

Land  within  the  limits  of  the  gr.inl  lo 
the  company  which  had  l>een  settled  and 
pre-empted  before  the  filing  of  a  map  of  the 
delinitc  location  of  the  road  is  excepted 
from  the  grant,  and  the  company  did  not 
take  title.  ClitUi-n  v.  I'nion  I'lti.  A'.  Co., 
30  /v./.  A'f/i.  r)6o.  — F<)i,i,()WiN(;  Kansas  !»ac. 
K.  (."<>.  V.  Dunmeyer,  113  V.  S.  6;y.  5  Sup. 
Cl.  kep.  566. 

Tiiat  portion  of  the  act  of  July  1,  18^1:, 
which  conveyed  to  the  company  a  right  o( 
w.ty  included  the  sixteenth  and  thirty-sixth 
sections  intended  for  tin;  future  sta'e  of 
Nebraska  as  school  lands,  under  the  act  of 
1.S54.  creating  the  territory  of  Nebraska. 
/■;//.';/  /'lie.  A\  Lo.  v.  Ihnii;/,!^  (',..  \\  /•>,/. 
A',/>  540.  yiJOTiNC  St.  [oM-ph  k  \^.  C.  R. 
Co.  J'.  Baldwin,  103  U.  S.  426.  Rkkkkrin(; 
TO  Leavenworth,  L.  A  G.  R.  Co.  v.  United 
nates.  92  U.  S.  733. 

The  n.  fi  M.  R.  R.  cxtcn.^ion  is  one  of 
the  branches  of  the  Union  Pacific  and  the 
lands  within  the  limits  of  the  grant  to  that 
corporation  are  not  subject  to  private  entry. 
St^t/iialyy  v.  J/oir/'uiii,  ft  .Xth.  363. 

U4.  Klt'cct  of  Hiirv4>.v.  IIIIuk  iiiuii, 
«'t«'.— Hv  act  of  July  26,  1866,  the  I'nicni 
Pafific.  southern  branch,  afterward  the  NL, 
K.  it  T.  R.  Co.,  received  a  grant  of  right  of 
way  for  its  road  200  feet  wide  through  the 
reserved  and  ceded  lands  of  the  govern- 
ment. Prior  to  December  24,  1867.  the  lat- 
ter cnjupany  surveyed  its  line  of  roid,  and 
filed  its  map  designating  its  route  with  the 
secretary  of  the  interior.     October  y,  1867, 


one  H.,  one  of  the  grantors  of  the  defend- 
ant. Cook,  purchased  of  the  government  liic 
l.ind  in  dispute.  Afterwards,  in  May  and 
June.  1870.  the  railway  company  changed 
the  lint-,  of  its  ro.id  and  built  it  a(  ross  the 
land  in  dispute,  the  <jriginal  location  not 
having  touched  the  quarter  section  to  which 
the  land  in  <piestion  beliuigs.  /A'A/,  that 
by  llie  survey  ol  its  line,  and  the  liling  oi  its 
ma|>  doignaiiiig  the  routi.*  of  its  road,  the 
roiii|iany  exercised  its  right  uiuler  its  grant, 
and  could  not  reclaim  it  two  years  and  a 
half  aftervvaids  on  clLingiii^  its  iine  ol  r^jad 
so  as  to  alfeci  the  rights  of  W.  or  his  giant- 
ees.  MisH'uri,  K.  &^  /'.  A'.  Co.  v.  Cook,  47 
h\iii.  i\(\  27  I\i,.  /w/.  847. 

05.  K.\c«'|il  i«Mi  III'  lioiiiCNtotid  I'iKlitH. 
"  Uy  the  act  of  July  1.  i8f)j,  ji  3,  a  grant  of 
lands  was  made  to  the  company  "  for  the 
purpo.se  of  aiding  in  the  construction  of  the 
railroad  and  teh.'gr.iph  line,  and  to  sei  ure 
the  s.iie  and  speedy  tr.inspoit.it ion  of  the 
mails,  troops,  munitions  ol  war,  and  public 
stori's  tlu-reon,"  and  it  was  enacted  that  all 
such  l.in(ls"not  sold  or  disposed  of"  by  ii;i' 
company  befun-  the  expiratiiiii  of  three 
)ears  after  the  entire  road  should  be  com- 
pleted should  be  sul)ject  to  settlement  and 
pie-emption.  like  other  lands.  //,/,/.•  in 
that  this  statute  should  be  lonstru'.-d.  if 
possible,  so  as  to  etfectuatc  the  object 
which  congress  had  primarily  in  view;  (.•'i 
th.it  the  primary  object  of  the  nr.tni  w,  s  to 
fiiMiish  assistance  in  and  during  the  ton- 
Sinn  tion  of  the  road,  and  that  opening  the 
iinsoM  or  un<lis|>osed  of  lands  lo  settle- 
^neiit  .mil  pre-emption  was  only  a  subordl- 
niiie  aMcj  second, iry  obje<t ;  (31  that  the 
secondary  purpose  of  congre<is  did  not  con- 
trol or  leleat  thai  wliii  h  was  primary;  1  d 
that  tiie  words  "or  disposed  of  '  are  not 
redundant  words,  or  synonymous  with  the 
word  "  sold,"  but  that  they  cfuitemplate  a 
use  of  the  hinds  granted  difTcrent  from  a 
sale,  and  that  a  mortgage  is  such  a  use. 
/•/,»//  V.  I'liion  /•,!,.  /,'.  (.o..iH)  r.  .S.  4«. - 
Follow  K|i  in  Farmers'  L.  \  T.  Co.  v.  To- 
ledo \-  S.  11.  R.  Co.,  54  Fed.  Rep  7<ii),  4  C. 
C.  A.  561.  giiirKii  IN  Memphis  *  !..  R. 
R.  Co.  V.  \)i>\\.  22  MLitclif  (IJ.  S. t  48, 
U)  Fed.  Rep.  388.  Southern  Mac,  R.  Co.?'. 
lK)vlc,  II  Fed.  Rep.  253.  8  .Sawv.  fio. 

The  exception  in  the  land  grant  of  lan<!s 
to  which  homestead  claims  iiad  attached  at 
the  time  the  line  o(  the  ri'iln>.«l  was  defi- 
nitely fixed  did  not  operate  iii  favor  of  :i 
sham     and     fraudulent    liomestei  .1    cluiiii. 


LAND   GRANTS,  tMM»H. 


176 


rnion  Pac.  R.  Co.  v.  Walts,  2  Dili.  (I/.  S.) 
310. 

3.    To  Other  Kailroadi. 

\H..   AtelilKoii,    Topckii    &    Suiitii 
|''«'.  On   April   3,    1867.  the  sucrctaiy  of 
the  interior,  in  pursuance  of  the  Act  of  Con- 
(;icss  ■  I   liii\  :f>.  iSf/),  wiilulrew  from  iniir- 
Ifi-t  :i   lar«e  aniouni  of  land   for  the  bcndit 
,,l  111.'   Missouri.  Kansas  \    Texas  railway. 
//<■/(/.  that  till'   withdrawal  in  itself  clul  not 
alfei  t  any  riH'il  or  interest  of  the  Atchisun, 
Topeka   &    Santa    Ic    road    in    the    lands 
within  its  ^r   '  i       The  willidrawal  was  sim- 
ply  intended   'o  pit  vent  persons  who  had 
no  interest    in    the   lands  prior   to  tiiat   of 
tin-  former  company  from  ac(|iiirinji  sutii  n- 
tirest ;  nnd  the  witlulrawal  did  not  prevent 
the  la      i    .1  ■   Ktny  from  deliniiely  loCiitiii^{ 
its  roa.:  ;i   >     .ikin^'  title  to  all  l.iiids  situate 
within  ten  miles  tliereof  which  came  within 
til"'  terms  <)f  the  >;rant.     Ati/u'soit,    /'.   c~ 
.s.  /•.  A'.  Co.  V.  /u>ii~!i'Ot>tt,  5  .////.  ^r*  /•->/(,'.  A'. 
l.ii.  4',2.  25  A'iin.  2<)i. 

1»7.  AtliiiitU'  a  l*acifi<'.— The  lands 
jri.iiited  to  the  Atlantic  \  I'acilic  railway 
hv  act  ol  July  27.  18^/1.  between  the  Colorado 
river  and  the  Pacific  ocean,  and  declared 
forfeited  and  retaken  under  the  act  of  July 
<K  i;^86.  were  retaken  for  the  henulit  of  the 
I'liiied  States,  and  not  for  the  henelit  of  the 
Southern  I'acilic  railway.  Uniti-tt  Stati-s  \. 
Soul /inn  l',u.  A".  Co.,  146  U.  S.  570.  iiSu/>. 
CI.  AV/>.  152;  tt-oiisiHfi;  14  Siiuiy.do,  yj  Juut. 

\  mef:  iresp:'.ssor  on  land  situate  within 
the  indemnity  iinil  ^rant  to  the  company, 
having  no  C(jntr.i<t  with  or  authoiny  from 
saiil  conipany,  cannot  avail  himself  of 
till'  rights  of  that  company  in  attai  kin^  a 
vo.'l  patent  issued  hy  the  ^;ovcrnment  of 
llu-  L'nited  Stales  for  the  same  land  to  the 
r^oiithern  i'acilic  railro.id  company.  /•'0.1s 
V.  Hink.ll.  78  Cil.  158.  -'o  /'.I.     K-p.  v»V 

i>M.  ItiirliiiKlnii  .V  MiNMiiiri  Itivor. 
-  llu-  l.ir.d  yranl  in.nle  July  2,  1864.  to  the 
roiiiii.my  was  made  snlijcct  to  the  provision 
III  till' oii^in.il  act  of  July  i.  1862.  ;  ).  wliicii 
rein  i  d  to  ilu'  puhlic  the  rinht  of  seitle- 
nu'iit  or  |ire-emption.  if  tlx-  lands  uranied 
Wrrt-  not  sold  or  disposed  of  within  lhr«'e 
years  .ifter  the  enliic  road  was  1  omplcicd. 
Hunniuu/l  \.  liurlini^ton  &*  M.  A'.  A'.  t(»..  < 
1>-Il.  it/.  S.)  313;  iijftrmni  in  22  WoU. 
{V.  .s-.,  464. 

.\iiil   where  such   la;  Is  hud   Ix'en    fully 
earned  and  the  cost  of  surveying  (Miid.  they 


were  taxable,  although  the  company  did  not 
pay  the  fees  of  the  local  land  office  until 
after  the  time  of  making  the  assessment  of 
taxes.  Hunnnvill  v,  lUnlington &^  M.  A'.  A". 
Co..  3  J)i//.  Uf.  S.)  313;  ajlhmi'd  in  22 
Wall.  tf.S.)  464. 

The  ^rant  made  hy  tht;  act  of  July  2.  1864. 
in  aid  of  defendant  company  emhrai;e<l  ten 
odd-numhered  sections  per  miie  alon^  the 
line  of  the  load  in  equal  (juan'.ities  on  each 
side,  il  not  previously  disposed  of  hy  the 
United  Slates;  and  the  act  allowed  the  land 
to  he  taken  along  the  line  of  the  road  wher- 
ever it  could  he  found,  and  lands  taken 
along  the  general  <lirection  or  course  rjf  the 
road  within  lines  perpendicular  to  it  at 
each  end,  were  within  the  meaning  of  the 
statute.  The  lands  need  not  he  contiguous 
to  the  road.  I'nittit  .Slalts  v.  Jiiir/iii_i;loii 
iL^  .)/.  A'.  A'.  Co.,  y8  C.  .S.  334;  ,ij/iniuf{^  4 
/)///.  (/'.  >'.)  297,— Al'iM.iKi)  I.N  Hastings  iV 
1).  U.  Co.  7'  Whitney,  24  Am.  &  Kng.  K. 
Cas.  iof).  34  Minn.  338.  yi;(Hi;i»  IN  Denver 
A  U.  (1.  U.  Co.  7'.  United  Slates.  36  Am.  & 
Eng.  K.  Cas.  429,  34  Fed.  Kep,  838. 

Therefore,  as  the  gruit  had  no  lateral 
limits,  and  the  lands  opposite  certain  sec- 
lions  of  til!  road  having  been  patented  in 
other  parties  through  a  neglect  to  wiliidiaw 
them  from  the  market,  the  grant  to  the 
company  coidd  be  made  up  hv  lands  along 
othei  portions  of  the  road.  Cn/tiit  .Slatfs 
V.  Hurling  toil  &^  .)/.  A'.  A'.  Co.,  98  I/.  S.  334; 
ajfirwinif  4  /III.  (  r.  .v.)  297. 

The  amendment  made  in  18^14.  ei.larging 
the  previous  grant  to  the  Union  Pacific 
Co..  was  intended  to  ajiply  to  tht  grants 
made  to  all  of  the  branches.  All  the  rea- 
sons which  let!  to  the  enlargement  of  the 
oiiginal  grant  led  to  its  enlargement  as  to 
the  branches.  It  was  iTie  intention  of  con- 
gress, both  in  the  original  act  and  in  the 
anv.'ndment.  to  place  the  Union  Pacific  Co. 
and  al<  its  branches  u|)on  the  same  footing 
ns  '<•  land  privileges  and  duties,  to  the  ex- 
lent  of  their  respective  roads,  e.xcept  when 
il  was  otlierwis*'  specially  stated.  I'nittd 
Slitix  v.  !iiitlnixton&'  M.  A'.  A'.  ((»..  98  (/, 
S.  334;  affirming  4  lUII.  ( T,  .V.)  397 
yt'dim  IN  Northern  Pac  H.  Co.  .-.  United 
Suites,  3^1  Fed.  Rep.  282. 

The  statute  contemplates  that  one  half  of 
the  land  granted  should  be  taken  on  each 
8i<le  of  the  roa<i  ;  and  the  de|iarlment  -ould 
not  enlarge  the  <piantity  on  one  side  to 
make  uit  a  defuiency  on  the  other;  bi.i 
upon  a  bill  filed  by  the  government,  patents 


■;)- 


176 


LAND   GRAMS,  S)W. 


>lH<l 


embnicing  an  excess  o(  lanHs  on  nno 
Hide  ill  the  road  cannot  be  adjudged  invalid 
when  not  !»..-  'le^cribw'  as  to  be  identified  ; 
nor  can  »  decrc<;  be  rendered  ;if;ainM  tlie 
company  for  their  value.  Uitilid  Stales 
M.IUirlinxton&^'.^r.  A'.  A".  Cc.yS  U.  S.  334; 
aj/irui/fix  4  /-'//A  I  f^-  >•»  297- 

Under  the  act  of  July  2,  1864,  the  ^rant 
attached  when  a  line  of  tin;  definite  loca- 
tion of  the  road  was  fixed,  ilioiitjh  the 
land  may  not  actually  liave  been  selcf  led 
and  patented  to  the  company  until  after- 
wards. Tabonck  v.  lUolini^tim  &*  M.  A'.  A'. 
Co..  2  AttLrary  (U.  S.)  407,  \i  I'cti.  A'if>. 
103. 

And  the  question  of  when  the  compa  y's 
title  attached  to  the  land  is  not  allected 
by  ihe  fact  that  there  were  no  lateral  limits 
to  the  >»rant.  Tabordk  v.  '{i'//iit^ti>ii  &^ 
M.  A'.  A".  Cii..  2  McCntry  ( L'.  .V. )  407,  1 3  /Vv/. 
Ke/>.  103, 

The  ({rant  of  land  to  aid  in  the  construc- 
tion of  the  road,  under  the  act  of  1S57,  was 
a  grant  in  prirsenli,  in  the  nature  of  a  final, 
■  M'til  such  tin>c  as  the  sjiecific  tracts  could 
)h  ascertained  by  the  location  of  the  line 
o(  said  railroad,  and  by  the  act  of  1864 
Iht  riant  was  made  definite  and  certain  by 
r.  'cr  !r,ce  to  the  line  of  road  as  then  lo- 
cjtt'f*,  and  no  longer  a  float;  and  the  right 
arf(  .ired  under  the  grant  could  nj)t  be  im- 
paired by  legislation,  either  state  or  na- 
tional. The  railroad  was  completed  ami  the 
land  pro;>erly  certified  as  rc(|uired  by  law, 
and  the  title  taken  thereof  ! elated  back  to 
the  date  of  ihe  grant.  An  cntcrer  upon 
such  lands,  within  the  limits  of  the  grant, 
whether  for  pre-emption  or  homestead  pur- 
poses, could  gain  no  rights,  as  agait.si  the 
graiaee,  under  the  last  section  of  the  \c\  of 
Congress  approved  April  21,  1876,  the  title 
hiving  already  jiassed  from  the  United 
States  before  the  passage  of  that  act.  lUtr- 
lintiton  Sr*  M.  A'.  A'.  Cn.  v.  Linvsan,  10  Am, 
(S-  A'wi,'.  A".  Ctis.  548,  58  Imvii,  145,  12  N. 
W.  AV/.  229. 

Under  section  20  of  "  the  act  approved 
July  2,  1864.  providing  that  when  '•  the  Hur- 
lington  &  Missouri  River  Kailroarl  Com- 
pany shall  have  completed  twenty  consecu- 
tive miles  of  its  road  the  president  of  the 
United  States  shall  appoint  three  rominis- 
sioncrs  to  examine  and  report  to  him  in  re- 
lation thereto,  and  if  it  shall  appear  to  him 
that  twenty  miles  of  said  road  have  been 
completed  as  required  by  law.  then,  upon 
certificates  of  said  commissioners   to   that 


ellect  patents  shall  issue  conveying  the 
right  and  title  to  said  l.inds  t(»  said  com- 
pany." i.tc.  //</(/,  that  until  such  ceriificite 
was  issued  the  c<jmpaiiy  <lid  nut  bee nme 
the  equitable  owner  >>f  such  lands,  Whit^ 
v.  /liiiiiiii;t,»i  C-^  M.  A'.  A".  Ci'.,  5  AV/'.  .VJ3.— 
l<i:vii:\VKii   i.v   Bellinger   ;>.   White,  5  Nth. 

The  word  "claim"  in  section  ly  of  ihr 
act  is  not  restricted  to  such  c  laims  as  shall 
alterw.irds  riiuii  into  |icrffct  titles,  but  in- 
cludes all  that  are  ina<le  in  due  d  irm.  whetiur 
they  are  afterwards  either  periei  ted,  iiban- 
doned,  or  forfeited  or  not.  lUii  liiiiiliui  v'^ 
M.  A'.  A",  t'f'.  V.  . //  '.  \o  .lin.  iS-  A;/^',  A. 
t<;i.  <M,   14  .\'r/>.  'J3,   13    \.   //'.  AV/»,  317. 

The  grant  of  tho  right  of  v,.:y  over  tlu 
lands  of  tiie  United  .States  by  section  iS  uf 
tlie  Ml  was  of  a  pr.-seiit  interest,  and  im- 
ti<e,  from  the  pass.ige  ol  tl'.e  act,  to  all  '.ler- 
soiis  dealing  witii  pul)lic  lands  within  ilie 
presiribed  limits,  of  the  company's  interest 
therein.  A'/i/ir  v.  limlin-^ton  Sr'  M.  A".  A'. 
C'('.,  10  ,/;//,  c-^  hii^.  A'.  Liis.  (  S.S.  14  .\V/i.  I  20. 
1;  X.  W.  AV/.  371.— .Al-rKoviNti  St.  J  isepli 
\-  I).  C.  K.  Co.";-.  H.ildwin,  103  U.  S.  42f.. 

And  where,  after  one  lucaiion  nf  its  loau, 
the  company  changed  its  line  pursuant  to 
the  Act  of  Congress  approved  May  6,  I070 
(St.  at  L,  118).  a  piirchiiser  of  land  frnm 
the  United  States  after  the  passage  of  tlie 
act  look  it  subject  to  the  right  of  way 
under  the  new  location,  afterwards  made. 
AV(/</v.  />«;///yA>;/ (S«  J/.  A".  A'.  Co.,  lo  .,-/;//. 
il^  /•.//i,'.  A".  Ciis.  688,  14  AV^.  120,  15  A'.  //  . 
AV/.  371. 

IN).  C'iilil'oriilil  &  Ort'KOii.— Un<l>  r 
the  ail  of  i8f/)  (14  St.  al  L.  239,1  grantiiii; 
land  to  aid  in  the  construction  of  the  roi'd. 
lands  outside  t)ie  forty-mile  limit  of  tin- 
specific  grant. and  within  the  exterior  liiniN 
of  an  allegird  Mexiian  grant,  are  subjeci  i" 
seleilion  in  lieu  of  the  alternate  odd  sei - 
lions  otherwise  disposed  of,  at  the  timeol 
the  definite  location  of  the  toad,  situaml 
within  tlic  fortv-mile  limit, at  anv  time  altir 
the  final  rejection  of  sin  h  Mexican  gr.mi. 
Uni'ti;l  .^/ii/t-i  V.  Cititiiil  /'lit:  A',  to..  24  , /«/. 
L~  /•.«!,'.  A'.  tVi.t.  120,  n  .'^.niiy.  {I'.  .S. )  4,v**. 
26  /"Vi/.  AV/.  479. 

The  grant  does  not  attach  to  the  ml'l 
sections  of  lands  outside  the  (orty-niie 
limit  of  the"  specific  grant  until  the  selection 
is  actually  made  by  the  railroad  compaiv 
under  the  direction  of  the  secretary  of  the 
interior,  in  lieu  of  land**  otherwise  disposi'd 
of  within  said  limit.      L'»i/ti/  .SA«/<r  v.  C(ii- 


LAND   GRANTS.   100-102. 


1T7 


tnU  Pac.  A'.  Co.,  24  Am.  &^  Kii^.  A'.  Cits.  120, 
II  Siiuy.  (U.  S.)  438.  26  /■',(/.  Hip.  479. 

If,  at  the  time  such  selection  of  outside 
lieu  lands  is  made,  a  claim  under  a  Mexican 
Rrani  embracing  tlie  lands  selected  within 
its  exterior  limits  has  been  linally  n-jcclud, 
llic  lands  have  ceased  to  be  siih  jiniite,  and 
are  sul)iect  to  selection.  Cnitiii StiUcs  v. 
t<v///<i/  I'ltc.  A'.  Co.,  24  A  in.  &^  lliii;.  A'.  C<is. 
1:0.  II  SiiTcy.  (if.  S.)  438,  26  I'lul.  Kip.  479. 

Altlionfjli  such  lieu  lands  have  been  se- 
lected and  patented,  p";maturely,be'ore  the 
final  rejection  of  the  ji^rant,  yet,  a  suit  by 
the  United  States  to  vacate  the  seU-clioii 
iiiid  patent,  commenced  loni;  aftei  the  final 
rejection  of  the  urant,  on  tin-  ground  that 
it  was  issued  by  mistake,  will  not  be  sus- 
t.iined  xviu-re  it  does  not  aj>near  that  any 
|iriv.ite  |)arty  has  a('(|iiin'd  any  interest  in 
the  land  so  selected,  or  that  the  j{(.>vcri)iiUMit 
has  become  subject  to  any  obli^jation  in  re- 
lation to  said  land,  or  hi^s  sustaiiixl  any 
injury  by  reason  of  such  premature  selec- 
tion and  |)atcnt.  i'ltilt-d  ."^liilin  v.  Ci'iitriil 
/'■;<.  A".  Co.,  24  Am.  di-  Eiij^'.  A".  Cas,  120,  11 
.Siir.j.  I  U.  S.)  438.  26  i'lit.  /up.  479. 

In  sui  h  case,  if  thir  |)atent  were  vacated, 
the  railroad  company  woidd  now  be  enti-' 
tied  to  select  an  equal  anu)uni  of  other 
lands  within  the  limits,  and  even  to  select 
the  s.ime  lands,  they  hein^  now  subject  to 
selection,  and  to  receive  a  new  patent  llii;re- 
f(ir.  .A  court  of  e(|uiiy  will  not  correct  a 
mutual,  innocent  mistake  friJin  which  no 
injury  ( an  result  when  it  woidd  be  ine<|ui- 
tablL- to  do  so.  It  will  not  do  a  vain  thin^. 
Initiil .Sfttti-s  V.  Cttitra'.  Pac.  A'.  Co..  24  Am. 
>1~  ///I,'.  A*,  t'dv.  120,  II  .s<i;,^i'.  (V,  S.)  438, 
lU  /■,-,/.  l\,p.  479. 

Where  three  exterior  boundaries  of  a 
Mexican  ^rant  and  the  .[..antity  of  land  are 
<lesi^;iKiied.  the  fourth  exterior  boundary  is 
found  bv  runninj;  a  line  p.irallel  to  the  op- 
posite 1>  liindary  a  sullicient  distance  there- 
ficitn  to  include  the  (piantity  of  land  called 
for.  ('ii.'l,,l  .S/.t/,i  V.  Cntrol  l\u.  A'.  Co.. 
24  Am.  C-^  Eiii^,  A\  Ciis.  1 20,  1 1  .s',(?.i .  (  ( ',  .V.) 
43^.  2f.  /•>•</,  /up.  479. 

The  owners  of  tin-  land  at  the  time  of 
tiling;  a  bill  in  ecjuitv  to  Viic.ite  a  I'nitecl 
St  ites  p.iieiU  are  indispensable  parties  to 
'lie  bill;  and  where  it  appears  at  the  hear- 
iiiK  that  the  bill  is  filed  only  against  parlies 
who  have  no  interest  in  the  lands,  it  will  be 
'lisniissed  for  want  <>f  necess.iry  jiartics. 
Unifi;/  .S/,ifts  V.  Central  i\ic.  A'.  Co.,  24  ///«. 
6  1)   R   D.-ia. 


&*  Kii^;.  A',  Ciis.  120.  II  Saivy.  (U.S.)  438, 
26  /•'<•(/.  Jup.  479. 

100.  Cedar    lta|ti(lM  &   MiKsoiiri 

Itlvor.— The  Act  of  Congress  of  June  2, 
ii>64,  ^runtin^  lands  to  the  road  was  a  con- 
ditional urant  in  pnrsinti,  in  the  nature  of 
u  float,  covcduj;  the  lands  within  twenty 
miles  of  the  modified  line.  They  were  not 
std)ject  to  homestead  entry,  and  an  cnterer 
could  ac(|uirc  no  rights  against  the  grantee 
in  the  ;>.ct.  lUair  I'.  /..  c^  A.  Co.  v.  /\':./t-r- 
in^/iom,  43  Ati'ii  462. 

The  company  was  permitted  by  the  act  of 
June  2,  1864,  to  modify  and  change  the  lo- 
cation of  the  uncompleted  portiuii  of  its 
line,  said  act  providing  that  tlie  louipany 
should  "be  etiliiled,  f<ir  such  modilied  line, 
to  the  same  lands,  and  to  the  same  amount 
of  lands  per  mile,  ♦  *  ♦  asoriijinally  ^'raiiteil 
to  aid  in  the  construction  of  its  main  line, 
subject  to  the  conditions  and  forft  iiuns 
mentioned  in  the  original  grant."  The  lino 
as  modified  and  constructed  was  shorter  by 
s.'veral  miles  than  the  one  first  proposed. 
//<•/</,  tiiat  words  "  per  mile  "  in  the  act  were 
words  of  limitation,  aiul  that  the  company 
was  limited  thereby  to  the  same  number  (jf 
acr«"s  per  mile  of  constructed  road  ih.it  ii 
would  have  been  entitled  to  receive  under 
the  original  grant.  Ctitiir  /uip/,/\  &^  .\/.  A'. 
A'.  Co.  V.  /Ar;///i,'.  52  At*-./  6S7,  -,  .W  11 '. 
AV/.  786.  — |mii.I,i>wki>  in  Cedar  K.ipids  \- 
M.  K.  K.  Co.  T'.  Jewell,  12  Am.  &  Eng.  H. 
Cas.  277,  61  Iowa  410. 

101.  L«'a\<>iiwortli,  Lawroiifc  & 
Kort  <JII»soii.— The  odd-numbered  sec- 
tions granted  to  defendant  company  by  the 
Act  of  Congress  of  March  3,  1863,  were  not 
afTected  by  the  New  York  Indian  reser- 
vation tinder  the  treaty  of  1838.  Vnitr.l 
S/.i/'-s  V.  .)//s.ioiin.  A'.  &^  T.  A".  (.'.>.,  37  /■'<•</ 
/up.  68. — Fttit.owiNC.  Kansas  City,  L.  \-  :'. 
K.  K.  Co.  ,'.  Attorney-Cicneral,  118  U.  .S. 
682,  7  Sup.  Ct.  Hep.  66. 

The  above  act,  and  the  art  of  Jidy  ?(\ 
1866,  should  be  construeil  in  ptri  iii.jini.t. 
as  enacted  for  the  sole  purpose  of  building 
one  road,  the  latter  being  merely  supple- 
mentary to  the  former.  Cniftii  S/,i/is  v. 
Misumri,  A',  ^f-  '/'.  A'.  Co..  37  /'.,/.  A'c/>.  68 

lOti.  Li»av<'ii\v«rtii,  Lawn'iu'«»  S:. 
<lalv<».'*toii. --Under  the  Act  oi  Congress 
of  March  3.  1863  (12  St.  at  L,  772),  lands  not 
within  the  grant  in  place,  but  within  the 
limits  of  the  indemnity  strip,  were  not 
earned  by,  and  were  not  to  be  conveyed  to, 


■.^-X-: 


178 


LAND   (JKANTS,  10:i-l<'.%. 


the  company,  one  of  the  Ijuncficiirius  in 
said  act,  or  sold  for  its  benefit,  iitiiii  the 
completion  of  the  entire  road  and  branches; 
and  if  ^aid  road  and  brandies  were  not 
completed  wiiliin  ten  vear>-  llie)  reverted  to 
the  riiileil  States.  Tlie  road  was  not  coiii- 
plcted  wiihin  ten  years,  and  has  never  yet 
bien  completed;  and  coiij^ress,  in  iHyC',  by 
r>si>liition  (iCy  St.  at  L.  loi  i,  formally  de- 
clared a  forfeiture  of  all  unearned  lands, 
J/i'/i/,  that  suih  lands  were  freed  from  all 
rights  or  (li.inis  arising  under  y.iid  K^'nt, 
anil  that  a  pai'-nt  therefor  from  the  ^'ov- 
crnor  i>f  the  stale,  executed  more  than  ten 
years  aft>.r  the  iia.-.sa^e  of  the  act,  passed  no 
title.  4\V(/-  V.  //'////<*««,  lo  Am.  &^  /•".(,'•  />'. 
Liis.  361,  J7  h'ltn.  I. 

I'he  ){rant  in  aid  of  the  branch  of  the 
Atchison,  Topeka  iV  Saul."  Fe  K.  Co.  was 
only  of  lands  on  either  side,  and  did  not 
extend  beyond  its  terminus.  This  terminus 
Was  where  the  Leavenworth,  Lawrence  \' 
ti.  R.  e.ilered  the  Js'eosho  valley,  and  lands 
un  the  cast  of  said  l.isi-named  railro.id  were 
not  within  the  terms  of  the  urant  to  tiiis 
branch,  iiiid  never  could  liave  been  selei  ted 
therefor,  even  if  the  branch  had  been  built. 
Afff  V,  Wil/tiiDis,  \o  Am.  &•  lui^;.  A'.  Cits. 
561,  27  A'li/i.  I. 

Lands  within  the  inden-.nity  limits  named 
in  the  act  of  March  3.  lS(>j.  having  been, 
prior  to  the  Act  of  Congress  of  July  26, 
liSf)<'>(i4  St.  at  L.  289),  reserved  by  compe- 
tent authority  for  the  purpose  of  .lidin^'  in 
an  object  of  internal  improvemei;t,  never 
fell  within  the  terms  of  the  uraiii  111  .said 
laslnamed  act.  Xirr  v.  ll'i/liams,  10  ,/>//. 
«1^  /•'//<,'.  A'.  t(/.i,  561,  27  h'an.  1. 

loa.  .MciiiiihiM,  VA  PtiHO  &  l>a«-ilic. 
-  The  suflicieiicy  of  the  description  uiven  in 
the  map  and  desiirnation  of  tlie  land  re  .'r- 
vation  of  the  company,  tiled  in  the  jji'Mer.il 
land  otrice  on  Jtin  20.  1  857,  and  in  the  olhi  e 
t)f  the  distrii  t  surveyor  of  Ikx.ir  land  di.s- 
trict  on  Pebruary  17,  1857.  has  been  re- 
peatedly reco},'iii/ed  liy  boti,  the  legislative 
and  executive  departments  of  the  state.  It 
was  not  necessary,  to  fix  the  liKality  of  the 
reservation,  that  a  survey  shouUI  be  made 
and  description  j;iven  of  such  reservation. 
The  descriptiiiii  identities  sutliciently  the 
boundaries  of  the  reservation.  Ilouiton  if* 
T.  C.  A'.  Co.  v.  TV.r.w  »L~  /'.  A'.  Co..  70  /V.i . 
649,  8.V.  II'.  AV/.  498. 

The  charter  ol  said  company,  granted  by 
the  lejiisl.itnre  of  Texas  Feliruarv  4,  1854, 
^•.  w'ir»»,  the  l.ir  '  "-.nc  "Tinted  and  the  ri  - 


serve  created,  and  upon  which  tlic  company 
acted  and  invested  its  capital,  is  a  contract 
within  the  protection  of  that  clause  of  the 
constitution  of  the  United  States  which  de- 
clares that  ii<<  slate  shall  pass  any  law  im- 
pairing' the  obligation  of  contr.icts,  iiiid  not 
atfei  ted  liy  tlie  provisions  of  Tex.  C<jnst.  of 
1868,  art,  10,  ^  5.  J/oiis/oH  &■'  T,  C.  A".  (.#. 
V.  /i'.i.M  L.^  /'.  A'.  C.'.,  70  '/',A.  649,  8  .V.  //'. 
A'r/.  4y«- 

I04.  MhiiM>N<»tii  &  l*ticillc.  Whec. 
the  .\(  I  ol  Congress  ot  M.iicli  j,  1857,  coni- 
mmly  known  as  the  "  Land-^rant  Act,"  w. is 
passed,  the  title  to  the  K<iverniiienl  sec- 
tions 16  and  36,  within  the  territory 
of  .Minnesola,  and  the  ri(>ht  to  dispose 
thereof,  still  remained  in  the  I'nited  Sla'es. 
rndei  that  act,  and  the  act  of  ilie  legislative 
as.sembly  of  ihe  lerritorv,  passed  May  22. 
1857,  the  (i>m|)any  accjiiired  ;i  ri(;ht  oi  way 
over  the  even  sei  lions  not  disposed  of  prair 
lo  the  locatio  1  of  its  line,  iiii  ludiiiK  sec- 
tions ifj  and  36.  Co/iniivi  v.  St.  /\tiil. 
M.  &*  M.  A'.  C.'.,  38  .Minn.  260,  36  X.  II  . 
A'<'/*. 638.— l'"ol.l.o\vi.Ni;  .Si III 01, son  ;'. Thoin|i- 
son,  2$  Minn.  450.  Kxn.M.NKli  in  Uadke 
V.  Winona  iV  St.  I*.  R.  Co.,  42  Minn.  (u. 
Ri;vii.wiii  IS  U.idke  t.  Winon.i  it  Si. 
I'.  U.  Co..  vj  .Minn.  262,  39  N.  \V.  Rep. 
624. 

I  on.  MiMMoiiri,  KiiiiNiiN  it  IVxiiH. 
-  On  July  2(i,  li<(>(<  the  lands  .id  jaieiit  loth.e 
thi'ii  x'lected  line  of  piaintitf's  mad  up  liie 
Smoky  lliil  river,  ai..!  including  the  l.iiids 
in  conlroversy.  were,  in  pursuance  ol  posi- 
tive and  direct  lei.;islalii)n,  reserved  from  sali' 
liy  tile  United  Slates,  and  on  |anu.iiv  a. 
l8<)7.  the  road  alon^  these  lands  was  com- 
plelffl,  accepted  tiy  the  president,  and  pat- 
ents by  him  ordered  to  lie  issued  for  the 
l.inds.  The  land  grants  to  the  defenilani 
provided  that,  in  case  it  should  appear  when 
the  line  or  route  of  its  road  was  delinilely 
hxed  that  the  United  Si.ites  hud  sold  .my 
seclion,  or  any  one  had  been  leserved  l»v  the 
United  Stales  foi  .my  |iiirpose  whatever, 
then  the  secret.iry  of  tin-  inieiior  s'loulJ 
cause  other  lands  in  equal  amount  to  be  se- 
hcied  for  the  ^raiil.  The  line  oi  deknJ- 
aiit's  road  adjacent  to  the  laiiilH  in  dispute 
was  definitely  fixed  between  SeptPmliei  5 
and  20,  i8r/i.  /A/,/,  that  ihef,'raiil  to  iln  ilc- 
feiiil.int  never  attached  to  the  lands,  bill 
lli.it  the  full  title  thereto  passed  lo  tlie 
{ilaintitT  by  the  construction  and  ,;e(ept- 
ancc  of  its  road.  A'linsin  J\ii.  A'.  Ci<.  v 
Ah\si>un'.  K.  &*  /'.  A'.  Co.,  1$  h'an.  15. 


LAND   GRANTS,  UmtOtt. 


179 


KMI.  Orcffoii  &  Cnlli'oriiia,  ireiier- 

iillj.  Tlu!  jjrant  to  deft-nclant  coni|>any 
111  iil<-  liy  Acts  of  Congress  July  25, 1X66,  and 
liiiii-  25, 1868, in(-lu(lt.-il,(  I )  the odd-minibercd 
S((  linns  within  ten  miles  on  each  side  of  llic 
mad.  not  otheTwistr  apjiropriatcd  or  dis|)osefl 
<.'.  oil  condition  that  tlu;  rond  should  lie 
(iiinplcted  !)>■  July  1,  1880;  1:)  a  K>i*"t  <>'<>" 
.ilisolutc  rit{lil  of  way  lu  i.iki*  elicit  wlicii 
thr  road  was  dfliii'lcly  located.  />|r/'»v  v. 
(  h,  -,'«  I'i-  t'.  A'.  Co.,  24  .tin.  if*  /•.//(,'.  A".  Cas. 

I  -.  y.  /••,•,/.  lu-/i.  586.  1 1  Sajoy.  (  ( '.  S.)  47y.  - 
I'liiinwiNii  Denver  A  K.  (i.  K.  Cu.  v.  Al- 
lin;,'  ')')  U,  S.  474  ;  St.  |osc|th  iSi  \).  C.  R.  Co. 
V.  Ill  Id  win,  103  V.  S.  4i«.  yrollNt;  Doran 
;•.  Cciiliid  I'ac,  K.  Co..  24  Cal.  259.  -Kk- 
Kii<ki-:|)  ID  IN  lianiilton  v.  S|)ol:anc  <!k  V. 
K.  <u..  2  l<lahoH!)«. 

Kilt  the  ^ovt-riiiiu-nt  ulonc  rould  tako  ad- 
vaiitauc  of  the  forfeiture  for  lailiiiK  to  com- 
pli'te  tile  roiut  in  the  time  prescriheti  hy  the 
alicivc  .lit.  //I'M'  V.  <>/v^'('«  (S-  C.  A'.  Co., 24 
//«/.  C«  A'//,'.  A".  Ciis.  127,  26 /•■«•</.   AV/.  s«6, 

I I  .Siiji'i'.  ( 6    6'.  I  479- 

Tlic  l.iiid  ^raiit  ni.iile  l>y  the  Act  of  Con- 
^rrss  o(  |iily  2;;,  1886,  dirl  not  include  prc- 
cin;i'i'it  laixis  within  the  twenty-tnile  limit 
ol  liii'  nr.iiit.  HrinvH  v.  Coruii,  16  Ori-((. 
3«K.  ii<  I'iU.  A'i/>.  W).  31  /'<»(•.  AV/».  47.—  Koi,. 
LiiwiNi;  Kansas  Pac.  R.  Co.  j;  iJunmeyer, 

II  -,  r.  s.  (<2i). 

.\  |iiL--einptioii  is  n  ri^!il  derived  wholly 
fiiini  till-  st.itnte,  and  a  siibHlantial  coinpli* 
unci'  therewith  is  necessary,  which  must  be 
slidwii  liy  competent  evidence.  So  where 
land  i^  claimed  under  u  pre-emption,  us 
against  a  railroad  Kt^**'*''  the  evidence  of- 
fered must  show  that  the  conditions  existed 
wliK  li  would  enable  the  pre-en>plion.  .111. 1 
tli.ii  'lie  |ire-(Mnptor  had  performed  enough 
to  |L;iv('  liitn  at  least  an  inchoate  rJKht  to  the 
laiiil.  /Intwnv.  Corson,  \fiOrfg.  388,  iq/'iu. 
A'./.  Wi,  :i  l\u.  K,/>.  47. 

107.  —  citiilllct  with  North'/ru 
l*iieilte  iri'iiiit.  The  Act  of  ConKress  •>( 
lulv  i.  iMf>4,  .itithori/.ed  the  construct!. >n  of 
a  r.iilro.id  fiom  I.Kike  Superior  to  some  |M)int 
on  l'u^;et  Sound,  with  a  biuiu  li  via  luu  Co- 
Inmliia  Kiver  valley  to  PortUnd,  ( Jre,  HiU, 
that  till  land  yrant  provided  by  the  act  ex- 
lciiil<d  Ixitli  tn  the  main  line  and  to  the 
brmiih.  I'nil.d  SdiUs  v.  Onf^on  tr*  t'.  A', 
to  .  57  /•../.  Kifi.  8yo. 

Tile  provision  of  the  aboV(  art  ijrantinK 
luiul  'not  rc'iervcd,  sold,  or  granted"  was 
not  made  III  contemplation  ol  a  subsequent 
grant  to  the  Ure^on  &  California  railroad. 


United  St iitti  v.  Oregon  &*  C.  A\  Co.,  57  /-et/. 
A'efi.  890. 

The  above  grant  acted  in  finrwnti  and 
vested  title  in  the  company  so  that  it  <oidd 
not  pass  to  the  Oregon  k  California  rail- 
road under  the  subseipieiit  grant  of  July  2$, 
i8f)6.  I'niteii  Sl,ites  v,  Ori);oM  &^  C.  A'.  Co., 
57  /■'lit.  A'e/).  8</j. 

The  grant  to  defendant  company  did  not 
gain  priority  over  the  Northern  Pacific 
grant,  either  by  the  fact  that  defendant  filed 
its  map  of  detinitc  locution  and  constructed 
a  part  of  its  road,  and  received  patents  for 
the  land  before  the  Northern  Pacific  Co. 
tiled  a  map  of  its  location,  showing  that 
there  was  a  conflict  in  the  grants,  or  by  the 
further  fact  that  the  Northern  Pat  i lie  ro.id 
was  not  constructed  on  the  line  as  shown  by 
such  maps.  Um'teil  .States  v.  (>rt),'on  ur*  C, 
A'.  Co..  57  /•■«•'/.  Ae/>.  8yo. 

ION.  On'Kuii  i'viitral.- Ihe  Act  of 
Congress  of  May  4,  1870,  making  a  grant  of 
lands  to  the  company,  took  the  lands  out  of 
the  public  lands  and  prevented  the  Northern 
Pacitic  R.  Co.  from  acipiiring  title  thereto 
under  the  act  of  May  31,  1890,  though  the 
former  company  did  not  file  its  map  of 
definite  location  until  after  the  latte-  had 
filed  a  map  «)f  its  general  route,  ('nited 
States  V.  \'ot titer n  /'<.'..  K.Co.,  152  U.S. 
284,  14  Sup.  Ct.  AV/.  598. 

The  act  of  May  4.  1870,  granting  lands  to 
ad  in  constru<:ting  a  railroad  "from  Port- 
land to  Astoria.  Oreg.,  and  from  a  suitable 
point  of  junctif>n  near  l-'orest  Grove  to  the 
Yamhill  river,"  wa.-.  intended  to  be  two 
grants:  (1)  from  Portland  to  Astoria:  12) 
from  the  junction  near  I'orest  (irove  to 
Yamhill  river;  and  the  company  was  not 
entitled  to  the  lands  lying  within  the  ex- 
terior quadrant  formed  by  drawing  a  line 
ut  the  junction  at  right  angles  to  the  course 
of  the  roads.  United  States  v.  Orei^on  »!«■* 
C.  A'.  I'o.,  57  /■.'(/.  AV/.  426.  — |)i.sriM;iiisH- 
iNii  United  States  v.  Union  Pac.  R.  Co., 
148  I).  S.  562,  13  Sup.  Ct.  Rep.  724. 

Siu  h  lands  were  declared  forfeited  by  the 
Act  of  Congress  of  |anuary  31,  188$. 
United  States  v.  the,; on  A-  C.  A'.  C'd..  57 
I'ld.  i\e/>.  426 

IOI>.  HI.  .loNcpli&  I»(Miv<>r.  Undei 
the  land  grant  by  Act  of  Congress  of  July 
33,  1866.  the  title  tif  the  company  attached 
when  it  tiled  a  map  of  the  definite  location 
of  its  road,  and  not  when  it  wiut  recorded  in 
the  local  land  olFice.  So  an  individual  pro 
curing'  a  patent  for  land  umbr.-iccd  within 


i 


•^';# 


180 


LAND  GRANTS,  110-li:<. 


the  grant,  between  the  time  of  filing  such 
niu|>  at.d  the  time  uf  its  being  recorded, 
would  not  take  title  as  against  the  com- 
pany. A'mn'ii/s  V.  //y<ft;  5  />///.  {(^.  N.)  469. 
U'li/t/iH  V.  A«/T'(»/.v,  114  I'.  S.  373,  5  Sit/i.  Ct. 
/»•</.  KyS.—  Koi.i.owiNC.  Van  Wyck  7'.  Kne- 
vals,  10^)  U.  S.  3^)0.  Kkakkikminc  Kansas 
I'ac.  K.  Ct>.  7'.  Dunmeycr,  113  U.  S.  629. 

And  if  the  coiniiany  failed  to  comply 
with  the  conditions  of  the  grant,  only  the 
government  lould  take  advantage  thereof. 
Kh.v.i/s  V,  Hvi/>\  5  />iil.  { I '.  S. )  4r,9. 

1  1(».  Ht.  INiill  &  PiK'illr — The  land 
in  controversy  is  within  the  litnits  of  the 
land  grant  of  the  St.  Paul  &  Pacific  K.  Co., 
which  claims  title  under  the  act  of  March 
3,  1X57.  It  is  included  in  a  section  of  land 
which  was  improved  and  occupied  by  a 
mail  contractor  in  1855,  who  claimed  to  be 
entitled  to  enter  the  same  by  pre-emption 
under  the  act  of  March  3.  1855,  and  his  aj)- 
plication  to  enter  the  same,  afterwards  rec- 
ognized and  approved  by  the  land  depart- 
ment of  the  government,  was  made  before 
the  railroad  company  became  entitled  to 
the  land  under  the  provisions  of  the  Land- 
grant  Act.  HeU,  that  a  pre-emption  right 
had  attached,  within  the  meaning  of  the 
last-named  act,  and  that  the  section  of  land 
in  controversy  <lid  not  enure  to  the  railway 
company  as  a  part  of  its  land  grant.  U'eiks 
V.  /iriilfjmtin,  4(>  Minn.  390,  49  A'.  U'.  Hep. 
191  ;  former  t%ppeal  ^\  Minn.  352,  43  ;V.  \V. 
y>V/."8i. 

IV.  STATE  OHAHTS  TO  BAILB0AS8. 

111.  Alahaiiia.— Under  the  provisions 
of  the  act  approved  February  11,  1870,  "to 
loan  the  credit  of  the  state  to  the  Alabama 
iSf  Chattanooga  railroad  company  for  the 
purpose  of  expediting  the  construction  of 
the  railroad  of  saiil  company  "  (Sess.  .Acts 
1869-70,  |jp.  89-92),  the  right  was  reserved 
to  the  com|)any  to  sell  any  part  of  the  lands 
in  accordance  with  the  terms  of  the  grant 
by  congress,  but  with  the  proviso  added 
that  "  the  |>rocecds  nf  said  sales  shall  be  ap- 
propriated tf)  the  payment  of  the  first  mort- 
gage bonds  of  said  company "  (section  i); 
and  by  force  of  this  proviso  a  conveyance  by 
the  corporation  to  its  attorney,  in  payments 
of  fees  for  professional  services  rendered, 
would  convey  no  title,  he  being  chargeable 
with  notice  of  the  trust.  Standifer  v. 
Swann,  78  AU\.  88. 

Under  the  nineteenth  section  of  the  act 
approved    February    23,    1876,    commonly 


called  the  Debt  Settlement  Act,  such  laiid,« 
as  "  had  been  sold  by  said  railroad  company 
under  the  authority  reserved  to  it  by  act  of 
February  11,  1870,"  wire  excepted  from  the 
operation  of  the  <leed  to  Swann  \'  Hillups 
as  trustees,  and  the  titles  of  all  bona  fide 
purchasers  of  any  portions  of  s.iid  lamis  ac- 
quired under  said  authority  were  cmi 
firmed;  I'lt  the  act  does  not  create  any 
new  title,  nor  confer  a  legal  title  on  a  pur- 
chaser from  one  who,  without  authoiiM', 
assumed  to  act  as  agent  of  the  niilru;ii| 
company,  although  he  may  invoke  an  equi- 
table estoppel  against  the  corporation  (loin 
its  knowledge  and  presumed  r:itilir-;iti'in  of 
the  acts  of  sucli  agetit.  .Stiin(/i/,r  v. 
Si.'iinn.  78  .//,/.  88. 

1  Its.  ArkansjiH.— Hy  the  act  of  Noveni- 
ber  26,  1856,  the  legislature  (granted  t<>  ilic 
Little  Hock  iV  Fort  Smith  K.  Co.  the  I. mils 
donated  by  congr<'SS  to  the  state  to  aid  in 
the  construction  of  the  Cairo  &  Fulton 
railroarl  anri  its  branches,  which  were  adja- 
cent to  the  route  of  the  former  roa«l,  siil)- 
ject  to  all  the  provisions,  restrictions,  limi- 
tations, and  riglits  created  by  tlie  av  t,  so  f.ir 
as  the  same  were  applicable.  The  act  also 
granted  to  the  Cairo  Ar  Fulton  K.  Co.  all  of 
the  aforesaid  lands  adjacent  thereto.  The 
second  section  provided  that  occupants  liy 
residence  and  cultivation  of  any  of  the 
lands  comprised  in  the  grant  made  by  con- 
gress might  jmrchase  of  the  Cairo  »V  Fulton 
K.  Co.  the  legal  subdivision  containing  liis 
residence  and  improvement,  not  exceeding 
one  quarter  section,  at  two  dollars  and  ;i 
half  per  acre,  by  complying  with  other  jiro- 
visirins  of  the  act.  Moth  companies  having; 
failed  to  comply  with  certain  conditions  of 
the  act,  the  legislature,  on  the  1st  of  Felirn- 
ary,  1859,  passed  an  act  releasing  them  from 
the  condition,  and  in  the  third  section  pi(  - 
vided  that  actual  residents  and  cultivaiois 
on  the  1st  of  November,  1858,  might  pur- 
chase  of  the  Cairo  \  F'ulton  R,  Co.,  ;is  pro- 
vided in  the  former  act.  //M,  that  :il- 
though  the  Little  Kock  H  Fort  Smith  U. 
Co.  was  not  named  in  the  secorul  .section  of 
the  first,  nor  in  the  third  section  of  the  last, 
act,  it  was  within  the  provisions  of  said  sic- 
tiims.  /.i///e  hWk  &-  /•'/.  .S'.  A",  t'.'.  v. 
/Awe//.  31  yiri:  119. 

1  1:1.  Oalil'oriiia The  Atlantic  .V  Pa- 
cific R.  Co.,  not  having  constru(ted  any 
railroad  in  California,  never  had  either  a 
present  or  prospective  right  to  any  indem- 
nity or  lieu  lands  within  the  state;  and  land 


LAND   GRANTS,  114. 


181 


In  said  state  within  the  primary  limits  and 
turms  of  tlic  fjrant  of  March  3,  1871,  to  the 
Soiithorn  Pacific  Co..  wiiicli  constructed  a 
hraiich  line  of  road  from  Tchachapi  Pass,  by 
way  of  Los  Anffcles,  to  the  Texas  Pacific 
railroad,  at  or  near  the  Colorado  river,  and 
pi-rformed  all  the  conditiems  of  said  grant 
iii.ccssary  to  entitle  it  to  a  patent,  passed  hy 
|)frft'Cl  title  to  the  Southern  Pacific  Cu„ 
which  attached  to  specific  land  at  the  date 
when  the  map  of  the  definite  location  was 
filed  ill  the  othce  of  tlie  commissioner  of 
the  general  land  otlice,  notwithstaiuling 
sail!  land  may  have  been  witliin  tile  indem- 
nity limits  of  the  prior  grant  to  the  Atlan- 
tic iV  Pacific  company.  I'om-sler  v.  S^o^l, 
9:  C'.i/.  jy8,  28  /'<!<.  AV/.  575.  -(JUiiiKli  I.N 
J.iliinn  V.  Sinitli,  95  Cal.  154. 

I'ivideiue  that  a  party  was  in  possessicjn 
of  public  land,  and  was  entitled  to  a  huine> 
stead  cnicy,  and  made  application  therefor, 
whii  h  was  refused,  without  a  showing  that 
ht'  |).ii<l  or  offered  to  pay  the  register's  fees, 
(iocs  not  bring  the  case  within  the  excep- 
tion in  a  legislative  grant  to  a  r.tilroad 
coinpany,  of  lands  to  which  pre-emption  or 
Itoincstead  claims  were  attached  "at  the 
time  the  line  of  said  road  is  definitely 
fi.\e(l.  "  Soullurn  I'ac.  A'.  (Jo.  v.  I'toull,  77 
tW/.  r,9,  iS  rac.  R,p.  886. 

1 14.  Cirorniu.  -Questions  in  regard  to 
the  hxMtion  of  the  boundary  uf  a  right  of  way 
granted  to  the  state  for  the  use  of  a  rail- 
road, and  in  regard  to  the  uuthr>rity  of  an 
ollicer  tf)  bind  the  slate  in  regard  to  such 
boiMiilary,  by  negotiations  with  a  private 
iiidividii.il,  are  not  alTecttd  by  the  (piestioii 
wliciher  or  not  an  easementor  tlie  fee  of  the 
land  was  originally  granted.  Doii-^hcrly  v. 
Wcsttfii  ilr' ,/.  A'.  Ci>.,  53  (/'(«.  }o.y. 

Upon  trial  of  the  ipiestion  as  to  the  riglit 
of  way  in  the  East  Tennessee  &  Georgia  K, 
Co.ovi-r  the  route  upon  whiidi  they  liav(:con- 
siiiKicd  tlH'ii  roa<l  in  (ieorgia,  as  against 
llie  ( laiin  of  the  Union  Hranch  K.  Co.  to  the 
sainr  //,/(/,  that  the  formiM  compiiny  takes 
11  )  legal  .lid  from  the  resolutions  <<f  mir 
lii^islature,  jiassed  in  the  year  1837,  olTer- 
iiiH  ti!  secure  similar  privih-ges  to  those 
enjoyed  by  the  Western  and  Atlantic  in 
our  stiite,  to  any  road  in  the  state  of  Ten- 
nessee seeking  to  connect  therewith  ;  pro- 
viileil  that  the  latter  state  would  grant  the 
privili^ge  of  extending  that  road  to  the 
Tennessee  river.  Union  lUamh  A'.  Co.  v. 
i'l'il    I'tnn.   &^   (/".    A',    to:,    14    U\i.  327.— 


'■^i.sriNCUlsHKl)  IN  Western  &  A.  R.  Co.  7-. 

State,  54  Ga.  428. 

In  the  year  1840  the  legislature  of  Geor- 
gia incf)rporated  the  Cross  Plains  \'  Ked 
Clay  K.  Co.,  reserving  the  right  to  repeal  the 
act  of  incorporation.  In  1847  an  a<:t  was 
passed  granting  the  right  <jf  way  over  the 
same  route  to  others.  In  1849  the  legis« 
latun:  by  ad  recognized  the  privileges 
granted  to  said  company  by  tlie  act  of  1840, 
changed  the  name  to  Union  liranch  rail- 
roiid,  and  repealed  the  clause  in  the  act  of 
184'j,  reserving  the  right  to  repeal  that  act, 
J/f/i/,  iliat  the  act  of  1849  could  not  aflect 
the  rights  which  had  been  ac(piired  under 
the  act  of  1847,  because  that  act  repealed 
the  act  of  184U,  so  far  as  the  right  of  way 
was  loncerned.  I'liion  Ihamh  A'.  Co.  v. 
A'</,\7  /■(//«.  L^»  Ci.  A",  ti'.,  14  Ciii.  327. 

Where  land  was  granted  to  a  railroad 
Coinpany,  so  lung  us  the  saiiu;  should  be 
used  "  for  shops,  depots,  and  other  con- 
veniences and  fixtures  necessary  for  said 
C(jMipany,"  and  the  only  use  made  of  the 
land  was  the  building  and  maintenance  uf 
u  truck,  or  tracks,  for  the  purpose  of  con- 
veying freights  to  private  parties,  the  stor- 
age of  cars,  and  other  like  uses,  this  would 
not  be  a  compliance  by  the  company  with 
the  terms  of  the  grant.  Gtorj^iit  A'.  &*  I!. 
Co.  V.  .Miiyor,  t-tc,  of  Macon,  86  da.  585,  13 
S.  E.  liip.  2f.  Foi.i.owiNc  Mayor,  etc.,  of 
Macon  V.  Easi  Tenn.,  V.  &  G.  K.  C0..82  Ga. 
501. 

Where  such  a  grant  was  made  to  the 
Milledgeville  R.  Co.,  of  which  the  Macon 
&  Augusta  R.  C"o.  was  the  legal  successor, 
and  the  latter  company  took  possession  of  a 
portion  of  the  land  and  so  built  and  used 
such  tracks  theri'on,  but  did  no  more,  and 
the  Georgia  Railroad  &  H.  Co.  afterwards 
took  possession  of  the  same,  and  it  appear- 
ing th.il  the  title  was  in  the  city  of  Macon, 
except  so  far  as  it  might  be  alTecled  by  the 
terms  of  such  grant,  then  the  city  was  en- 
titled to  recover  the  land  from  the  Georgia 
railro.id  as  a  mere  wrong-rloer,  unless  it 
showed  some  right  to  hold  under  the 
Macon  and  Augusta  company;  or,  if  it  did 
show  such  right,  then  the  city  was  entitled 
to  recover  for  want  of  compliance  with  the 
terms  of  the  grai.t,  and  in  either  event,  no 
demand  was  necessary  as  a  condition  pre- 
cedent to  the  city's  bringing  its  action  for 
the  land.  (7,(>;;;'/<i  A".  tS"*  /•'.  Co.  w  Mayor, 
etc.,  of  Macon,  86  da.  5S5,  13  .V.  E.  A'e/).  21. 


I 


V' 


183 


LAND   GRANTS,  115,  I  l«. 


115.  IIIIiioIm.— Const,  of  1848,  art.  4, 
{!  25,  proviiliiJK  tliat  all  ^jianis  .shall  l)c-  staled 
with  the  yr-.-al  seal  of  the  slate,  .mil  si^'neci 
by  the  Koveriior,  and  countersigned  Ijy  the 
secretary  of  slate,  does  not  apjily  to  a  rail- 
road ^rant  made  Wy  llie  lenislature ;  and 
such  urant  is  liierefore  not  rendered  invalid 
thereby.  Illinois  v.  Illinois  C.  K.  Co.,  }} 
/■til.  AV/.  7 JO. 

Hy  the  act  of  1854  (Stss.  Laws  ly:)  a 
reasonable  di.scretion  was  granted  to  tlio 
III.  Central  U.  Co.  u>  sell  its  lands  upon 
credit,  .md  aulhr)riiy  may  properly  be  in- 
ferred to  li.\  a  reasonable  minimum  price. 
JUo/ilr  V.  Illinois  C.  /»'.  to.. 62  ///.  510,  6  Am. 
Ay.  l\'i/>.  201. 

The  provision  in  the  charter  of  ihe  III. 
C<nl.  Ky.  dirtclin^;  that  all  the  lands  re- 
inainin^  unsold  at  the  expir.iti(jn  of  ten 
years  from  the  coin|iletion  of  the  road  and 
its  branches  shall  be  ollered  at  public  sale 
annually,  until  the  whole  is  disposed  of, 
im|>oses  a  duty  in  sucli  va^ue  and  (;eneral 
terms,  that  this  court,  in  view  of  the  serious 
consequences  and  difTiculties  in  the  way, 
does  not  feel  justified  in  enforcing  it  by 
mandamu:  with(.i:t  further  legislation. 
Feople  V.  Illinois  C.  iW  Co.,  G2  III.  510,  6  Am. 
Ky.  AV/.  201. 

110.  lown.— The  title  of  the  Dcs 
Moines  River  lands  was  not  ivissed  to  the 
Des  Moines  Navi^jation  iS:  K.  Co.  by  the 
certificate  of  the  refjistcr  of  the  Des  Moines 
Kiver  Improvement.  The  title  remained 
in  the  state  until  conveyed  by  patent.  Des 
Moines  N.  &»  K.  Co.  v.  rdk  County,  10 
lonux  I.— Foi.i.owKi)  IN  Tallmnn  v.  Uutler 
County,  12  Iowa  531.  Rkc<in(II.kii  i.v 
Cedar  Ra|)ids  <Sr  M.  R.  R.  Co.  v.  Carroll 
Co.,  41  Iowa  153. 

It  beinj;  coi.reded  by  both  plair»i<fs  and 
defendants  that  a  railroad  comp.iny  re- 
ccivin^j  a  ^xwnx  of  lands  under  the  Act  of 
Confjrcs^.  of  May  15,  1856,  and  the  Act  of 
the  General  Assembly  of  the  slate  of  [ulv 
14,  1856,  has  the  ri^ht  to  select  the  lands 
and  obtain  certificates  for  lands  situated 
more  than  twenty  miles  west  of  the  contem- 
plated line  of  their  road,  the  question  is  not 
passed  upon  by  this  court  in  this  case. 
/(Ti'ii  Homestead  Co.  v.  Webster  County,  21 
hnvii  221. 

Under  said  acts  the  railroad  r mipany 
■  )ccomes  IcKiilly  and  ab.solutelv  tntitlt-d  10 
one  hundred  and  twenty  sectiims  of  the 
land  granted  from  the  completion  of  twenty 
miles,  in  the  manner  in  said  acts  contem- 


plated, the  certificates  of  the  Kovernor  of 
the  state  and  from  the  land  department  of 
the  general  government  beinn  necessary 
only  as  evid'ence  of  a  title  already  exislinj;, 
and  from  the  completion  uf  such  twenty 
miles  the  lands  to  whl<'li  the  coinpati)'  llins 
becomes  entitled  are  subject  to  taxaiii)ii. 
A'TiM  llomesteiXil  Co.  v.  ll'elnter  County,  21 
lini'it  221.  Cliiciii;o.  />'.  >;^  (J.  A'.  Co.  v. 
/..Tiv'.v,  53  li'U'.r  101,  4  X.  II'.  A'e/>.  842. 

The  < ondition  of  a  lan<l  {{rant  toa  railroad 
was  that,  upon  the  completion  of  a  certain 
number  of  miles,  a  patent  should  be  issued 
by  the  novernor ;  and  such  patent  was  is- 
sued in  July,  1871.  /lelil,  thai,  in  the  ab- 
sence of  fiaudiilent  concealment  upon  the 
part  of  the  railroad  company  l<)  prevent  an 
earlier  issuance  of  the  patent,  the  lands  wenr 
not  taxable  for  the  year  1871.  Amui  l-'iilli 
&*  .v.  t".  A'.  Co.  V.  Plymouth  County,  40  hnoa 
609. 

Lands  were  conferred  upon  a  railroad 
company  by  the  legislature,  \\\vw  the  con- 
ditions that  the  company  should  receive 
them  in  instalments  as  the  work  of  con- 
struction progressed,  and  that,  if  the  ro.id 
were  not  completed  to  a  desi^^nated  point 
at  the  time  specified,  tlien  the  state  mif;ht 
resume  the  rijjhis  conferred  by  the  act  mak- 
iiij;  the  ^rant.  Held,  that,  even  in  the  ab- 
sence of  an  act  of  the  lej^islature,  after  a 
default  by  the  railroad  company,  the  latter, 
by  reason  of  a  non-compliance  with  the 
conditions,  did  not  possess  any  rij;hts  wliic  li 
could  be  enforced  in  the  cniirts.  Mcliref^or 
&^M.  A'.  A'.  Co.  V.  .SV,;//.r  C(ty  »L^  .St.  I'.  A'. 
Co.,  49  loit'it  604. 

The  Act  of  Conjjress  of  June  2,  1864,  an- 
thori/in){  a  change  in  the  railroad,  for  whi(  li 
a  previous  ({rant  had  been  made  by  the  art 
of  May  15.  1856.  between  Davenport  and 
Council  ni'.dTs,  did  not  divest  the  company 
of  the  laiuls  which  had  passed  to  it  under 
the  ({rant.  Cliinti^o,  A'.  /.  il"  I'.  A'.  Co.  v. 
Cirinnrll.  51  A>7i'(j  476. 

The  I'nited  States  alone  could  enforce  a 
forfeiture  of  a  jjraiit  of  land  maile  l)y  con- 
f{ress  on  the  Kroiinfl  that  the  road  was  not 
c«)m|)leted  within  the  time  limited  by  llic 
congressional  ^-rant.  CliiiiijL^o,  A'.  /.  iS-^  /'. 
A'.  C<'.  V.  Crinnell,  51  Ioikhi  47^1.  C/iiiii:;o, 
A'.  >1^  Q.  A',  t'l'.  V.  I.riCis,  53  liniut  101,  4 
A'.  W.  A'e/>.  842. 

The  rii;ht  to  resumi;  the  lanrls,  reserv  d 
by  the  stave  in  case  of  the  failure  of  0\e 
company  to  co!ni)leie  its  ro.id  by  a  spe<  li'd 
date,  may  be  waived,  and  such  rescrv.itjon 


I 


LAND   CiKANTS,  UT-llW. 


183 


docs  not  aUcct  the  title  ol  the  cumpany  to 
the  lands  ({ranted  until  the  ri^hi  is  excr- 
cisfcl.  CAiiiif,'o,  /»'  if^  <J.  A'.  Co.  v.  Li-^i'is, 
5  J  l,wa  101/4  A'.   W.  /up.  842. 

The  reservation  under  the  river  jjrant  ap- 
plied to  the  lands  situated  i\U)\\\i  the  (nain 
ehaiiiu'l  of  tlie  river,  and  such  lands  would 
not  be  released  from  its  operation  by  tile 
sul)se(|uenl  eertilication,  under  the  jjrant.  of 
certain  lands  situated  on  one  of  its  Ijranelies, 
undt-r  the  supposition  that  sucli  braiicli  was 
the  main  river.  Duhuquf  ^  S.  C.  A'.  Ci>.  v. 
I>,s  Moiiiis  Willi'}'  A*.  C<».,  54  loK'ii  «y,  6  iV. 
//'.  Rip.  157.  J I  -''"'•  A>.  AV/.  245. 

Nor  would  the  fact  that  certain  of  the 
lands  within  the  limits  of  the  river  ^rant 
were  held  by  tiie  Indians  at  the  date  of  the 
reservation,  and  until  some  time  in  1853, 
nperate  to  defuit  the  title  of  those  (  laimin^ 
under  such  urant,  the  reservation  luiviii^ 
taken  ctTect  as  to  such  lands  at  the  time  the 
Indian  title  was  extinguished,  and  |)rior  to 
the  ^rant  of  1S56.  Dubuqiu-  ijr'  S.  C.  A'.  Co. 
V.  />is  Moines  X'ulliy  K.  Co.,  54  /on'ii  Htj,  6 
.y.  //'.  A't-p.  157,  21  -•////.  AV.  A'lp.  245. 

The  failure  to  buiUI  the  road  as  prescribed 
by  the  grant  would  not  defeat  the  lef^isla- 
lion  conferring  the  land  upon  the  railroad 
company.  Johnson  v.  Thornton,  54  Imva 
144.6  .V.  //'.  AV/.  165.— Imh.i.owin*;  Chi- 
cago, W.  &  y.  K.  Co.  -'.  Lewis,  53  Iowa  101. 

I'he  title  to  the  lands  granted  to  the  !)u- 
biirjiie  A  Pacific  K.  Co..  by  act  of  congress 
approved  May  15,  1856,  and  by  the  act  of 
the  general  assembly  of  the  stale  approved 
Inly  1$.  1856,  did  not  pa!$s  to  the  company 
until  the  ctJinpany  had  tiled  in  tlie  utlice  <>f 
the  governor  a  map  or  plat  showing  its 
route,  and  the  gcivernor  had  signed  the  same 
and  tiled  it  in  the  general  land  ottice  at 
Washington,  as  provided  liy  section  (>  of 
said  last-named  act.  It  follows  that  lands 
within  the  six-mile  limit.  wl)i<  h  hail  been 
pre-empted  prii>r  to  such  tiling, did  not  pass 
to  the  cumpany  or  its  successois.  /oica 
/■'.il/s&'S.  C.  A'.  Co.  V.  //(•</<•.  67  l,m>ii42l,  25 
.V.  //'.  AV/,  686.-  DisiiNCiisiiiNd  Chi- 
cago, K.  I.  At  P.  K.  Co.  7'.  (Irinnell,  ^1  Iowa 
47f';  Cedar  Kapids  &  M.  R.  K.  Co.  t-.  Her- 
liiig.  no  U.  S.  27,  3  Sup.  Ct.  Hep,  4H5. 
roi.i.oWKii  IN  Sioux  C:ity  &  I.  r.  T.  I..  &  I.. 
Co.  ?'.  (JritTey,  72  Iowa  505,  34  N.  W.  Kep. 
304. 

Where  an  individual  has  been  in  open, 
niiiiirioiis,  and  adverse  possession  of  laixl: 
which  have  been  grante<l  to  u  railroad  com- 
Iiativ,  under  a  claim  of  ri^ht,  for  more  than 


ten  years  after  tlic  company  or  its  grantees 
might  have  maintained  an  action  for  posses- 
sion, or  to  cpiiet  title,  the  statute  of  limita- 
tions bars  such  right,  and  the  individual  is 
entitled  to  a  judgment  (piieting  his  title  to 
the  land.  CoU  v.  /fis  Mouus  I'olliy  A'.  Co., 
76  /ouui  185,  40. \'.  //'.  AV/.  71 1.  — roi.l.ow- 
IN<;  Whitehead  ','.  I'liimmer,  76  low.i  i.Si. 

1  17.  Khiiniin.  — Un<ler  a  conditional 
purchase  of  land  by  a  company  when  by 
the  terms  of  the  contract  of  purchase  no  pat- 
ent is  t(i  be  i.'isiied  for  the  land  until  all  the 
conditions  of  the  purchase  are  fultilled,  and 
if  any  ott  of  the  conditions  of  the  jiurchase 
is  not  f.illilled,  the  (onipaiiy  is  to  forfeit 
all  its  right,  title,  and  interest  in  and  to 
said  land,  and  the  same  is  to  be  sold  again 
to  other  parties,  and  when  it  appears  from 
the  nature  of  thecontract  and  the  character 
of  the  parties  that  time  is  an  essential  in- 
gredient of  the  contract,  no  title,  legal  or 
(■({uitablc,  passes  to  the  company  until  it 
fulhls  every  condition  of  its  contract. 
JhtUfjlas  Connfy  Cont'rs  v.  Union  l\ic.  A'. 
Co.,  5  Kiui  615. 

MM.  Maine.— The  E.  &  N.  A.  K.  Co. 
did  not  <jbtain  any  title  to  township  No.  11, 
range  3,  in  Aroostook  county,  it  being  part 
of  the  "  lands  set  apart  and  designated  for 
settlement"  by  legislative  resolve  of  1859. 
c.  288,  and  thus  excepted  from  the  grant  of 
the  state  to  this  corpcjration  (Spei:ial  Laws 
of  1864,  c.  401);  nor  dt>es  the  timber  upon 
that  township  belong  to  the  railroad  com- 
pany, since  standing  trees  pass  with  the  soil, 
as  part  «)f  the  realty,  unless  a  contrary  in- 
tention Is  clearly  expressed,  and  no  such  in- 
tent appears  in  the  present  instance.  There- 
fore one  who  is  engagefl  in  cutting  and 
renu)ving  the  limber  upon  said  township, 
claiming  to  act  in  so  doing  under  a  permit 
fnmi  the  K.  h  N.  A.  K.  Co.,  has  no  cause 
of  action  against  the  land  agent,  and  those 
acting  under  his  orders,  who  interfere  to 
prevent  a  destruction  and  removal  of  the 
timber,  ami  take  possession  thereof.  Dunn 
v.  /itirlii^h.  62  Ml'.  24. 

I  lU.  Michigan.— Act  132 of  1877,  con- 
firming the  transfer,  by  the  governor  and 
board  of  control  of  raitroarls,  to  the  Port  Hu- 
ron iS;  Lake  Michigan  R.  Co.. of  lamls granted 
by  congress  to  the  state  in  aid  of  the  construc- 
tion of  railroarls,  and  at  tirst  assigned  to  the 
Detroit  iS;  Milwaukee  R.  C"n..  was  void  as 
impairing  the  conti.ici  obligation  arising 
from  the  (onditions  of  the  grant,  whereby 
the    lands   were    to    levert    to   the   general 


'A' 


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IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


1.1 


11.25 


lli|2i    lU 
■tt  lU   12.2 

!"  us.   12.0 


U    |L6 


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Photograiiiic 

Sdenoes 

Corporation 


23  VtflST  MAM  STRUT 

WmTn,N.Y.  14SM 

( 71* )  172-4503 


.^ 


184 


LAND    GRANTS,  120. 


government  if  the  roads  to  wb.ich  the  stiite 
assigned  them  wore  not  completed  within  a 
specified  time.  Fenn  v.  Kiiisey,  45  Mich. 
446.  8  A'.  IV.  Rep.  64, 

120.  Miiiiiesotsi.— Where  a  grant  of 
hind  and  connected  franchises  is  made  to  a 
corporation  for  the  construction  of  a  rail- 
road, by  a  statute  which  provides  for  their 
foifeiiure  upon  failure  to  perform  the  work 
within  a  prescribed  lime,  tiie  forfeitur;  may 
be  declared  by  legislative  act  without  judi- 
cial proceedi.igs  to  ascertain  and  det'^rt.;ine 
the  failure  of  the  grantee.  Any  pub!  s.  ,^  - 
lion,  by  legislative  act,  of  the  ovvner.ihip  •  ' 
the  state  after  the  default  of  the  grantee — 
such  as  an  act  resuming  cimtrol  of  the  n  .  d 
and  franchises,  and  appropriating  them 
particular  uses,  or  granting  them  to  aiioi 
corporation  to  perform  the  work — isequ;.iiy 
ellective  and  operative.  Farnsivorth  v. 
Minnesota  &*  P.  R.  Co.,  92  U.  S.  49. — 
DisTiNc.uisHEU  IN  Mower  v.  Kemp,  42  La. 
Ann.  1007. 

Where  a  land  grant  is  made  by  the  general 
government  to  a  state  to  aid  rail;  jads,  and 
a  company  has  complied  with  the  federal 
law;  and  a  statute  of  the  state  transferring 
such  lands,  it  is  a  constructive  fraud  for  the 
state  to  convey  the  lands  to  another  com- 
pany;  and  where  the  former  company  be- 
gins suit  to  recover  such  lands,  it  is  not 
governed  by  the  provision  of  the  state  stat- 
ute relating  to  the  period  of  limitation  for 
"actions  to  enforce  a  trust  or  compel  an  ac- 
counting," but  is  governed  by  the  provision 
relating  to  actions  for  relief  on  the  ground 
of  fraud,  and  the  statute  does  not  begin  to 
run  until  the  fraud  is  discovered.  i^Ui^e  v. 
Sf.  raul,  S.  (S-  T.  F.  R.  Co.,  44  Fed.  ^ Rep. 
817;  affirming  32  Fed.  Rep.  821. 

Defendant  company  built  its  road  and 
took  a  patent  for  certain  indemnity  lands 
between  1867  and  1876.  In  1880  plaintiflf 
company  commenced  a  suit  to  recover  the 
lands,  claiming  them  under  a  different 
grant,  but  the  suit  was  dismissed  and  noth- 
ing further  was  done  to  assert  the  claim 
until  1887,  when  another  suit  was  brought. 
Heldy  that  it  was  barred.  Southern  Minn. 
R.  E.\- tension  Co.  v.  St.  Paul  &•  S.  C.  R.  Co., 
55  Fed.  Rep.  690.  — Following  St.  Paul.  S. 
&  T.  F.  R.  Co.  T'.  Sage,  4  U.  S.  App.  160,  i 
C.  C.  A.  256,  49  Fed.  Rep.  315. 

The  Act  of  the  Territorial  Legislature  of 
March  4,  1854,  incorporating  the  defendant, 
and  providing  that  all  sjch  lands  as  may  be 
afterwards  granted  by  congress  to  the  ter- 


ritory, to  aid  in  the  construction  of  its  rail- 
roads, shall  immediately  become  the  prop- 
erty of  the  company,  without  any  further 
act  or  deed,  vested  in  the  company  the  title 
acquired  by  the  territory  under  the  congres- 
sional act.  United  States  v.  Minnesota  &^ 
N.  'F.  R.  Co.,  I  Minn.  127  (Ci/.  103). 

Minn.  Special  Laws  of  1874,  ch.  105,  en- 
titled "  An  act  to  secure  the  payment  of 
certain  debts  contracted  in  the  construction 
of  certain  lines  of  road  of  the  St.  Paul  & 
Pacific  R.  Co.."  impairs  the  obligation  of 
the  contract  between  the  state  and  said 
company,  and  is  therefore  invalid.  JJe  Graff 
V.  St.  Paul  &'  P.  R.  Co.,  23  Minn.  144. 

Where  one  party  has  acquired  from  the 
=tate,  through  one  of  its  officers  duly  au- 
thorized to  make  a  deed  of  conveyance,  the 
legal  title  to  lands  which  of  right,  under  its 
laws,  belong  to  another,  the  former  will  be 
treated  in  equity  as  a  trustee  of  the  latter, 
and  compelled  to  transfer  the  legal  title  as 
to  such  of  the  lands  as  he  still  holds,  and  to 
account  for  the  proceeds  of  such  portion  as 
may  have  been  sold.  IVinona  &>  St.  P.  R. 
Co.  v.  .s'/.  Paul&^  S.  C.  R.  Co.,  26  Minn.  179, 
2  A^.   JV.  Rep.  489. 

The  Act  of  the  Legislature,  passed  March 
2,  1865,  entitled  "An  act  to  aid  and  facilitate 
the  c(j!nplction  of  the  St.  Paul  &  Pacific 
R.  Co.  and  Lranciies,  is  not  merely  a  grant 
or  conveyance  of  land  to  the  railroad  com- 
pany, but  is  also  a  law,  and  therefore,  in 
construing  it.  such  effect  must  be  given  to 
it  as  will  carry  out  the  intent  of  the  legis- 
lature. .Such  intent  cannot  be  defeated  by 
applying  10  the  grant  the  rules  of  the  com- 
mon law  applicable  to  mere  grants  or  con- 
veyances. Hence  (it  clearly  appearing  from 
said  act  that  it  was  the  intent  of  the  legis- 
lature to  grant  to  the  company  all  lands 
which  might  thereafter  be  granted  by  con- 
gress to  the  state  for  the  purpose  of  aiding 
the  construction  of  the  lines  of  road  of  the 
St.  Paul  &  Pacific  R.  Co.,  and  to  authorize 
the  governor,  in  behalf  of  the  state,  to  ex- 
ecute conveyances  thereof  to  the  railroad 
company),  conveyances  of  such  lands  ex- 
ecuted to  it  by  the  governor,  in  accordance 
with  said  act  of  theleiiislature,  are  valid  and 
operative  to  convey  title  to  the  company, 
although  the  state  had  no  title  to  these 
lands  on  the  2d  of  March,  1865,  when  it 
made  the  grant  to  the  company.  A'ash  v. 
Sullir/an.  10  Aw.  <S>»  Fntf.  R,  Cas.  552,  29 
A/inn.  206,  12  M.  IV.  A'*;;*.  698.— CRITICIS- 
ING Rice  V.  Minnesota  &  N.  W.  R.  Co.,  i 


P^ 


LAND   GRANTS,  131-123. 


185 


Black  (U.  S.)  358.  Following  Scliulenberg 
T/.  Harriman,  21  Wall.  (U.  S.)  44  ;  Missouri 
K.  &  T.  R.  Co.  V.  Kansas  Puc.  R.  Co.,  97 

U.  S.  491- 

The  grait  of  a  right  of  way  over  the 
school  sections  of  the  public  domain,  ac- 
quired by  a  company  under  the  Congres- 
sional Act  of  March  3,  1857,  and  the  Act  of 
Minn.  Territorial  Legislature  of  May  22, 
1857,  was  not  a  grant  in  prasenti,  but  in 
futiiro;  and  must  be  used  under  the  stat- 
utes referred  to,  if  at  all,  before  the  sale  of 
the  land  by  the  state.  Radke  v.  Winona  &* 
St.  P.  K.  Co.,  39  A/inn.  262,  39  A'.  VV.  Rep. 
624.— Rkviewing  Coleman  v.  St.  Paul,  M. 
&  M.  R.  Co.,  38  Minn.  260;  Winona  &  St. 
P.  R.  Co.  V.  Randall,  29  Minn.  283;  Denver 
&  R.  G.  R.  Co.  V.  Ailing,  99  U.  S.  463;  St. 
Joseph  &  D.  C.  R.  Co.  v.  Baldwin,  103  U. 
S.  426.— Adhered  to  in  Radiie  7'.  Winona 
&  St.  P.  R.  Co.,  42  Minn.  61. 

121.  Missouri.— The  Acts  of  Congress 
of  June  ID,  1852,  and  February  9,  1853,  and 
tlie  Act  of  Missouri  of  September  20,  1852, 
amounted  to  a  legislative  grant  of  the  even- 
numbered  sections  within  six  miles  of  the 
roads  to  be  built,  as  soon  as  a  definite  loca- 
tion thereof  was  filed.  It  is  not  necessary 
tiiat  the  maps  of  definite  location  should 
designate  the  particular  sections  granted. 
Hannibal  <&*  St.  J.  R.  Co.  v.  Moore,  37  Mo. 
338.— Followed  in  Pacific  R.  Co.  v.  Mc- 
Combs,  39  Mo.  329. 

122.  Nelirasltu.— The  Act  of  the  Legis- 
lature approved  February  15,  1869,  donating 
to  railroad  companies  which  should  comply 
with  its  conditions  the  lands  donated  to  the 
state  by  the  United  States  for  works  of  in- 
ternal improvement,  is  a  contract  between 
tiie  state  and  the  companies  which  have 
accepted  the  grant ;  and  the  Act  of  the  Legis- 
lature approved  March  i,  1871,  which  un- 
dertakes to  dispose  of  a  portion  of  the  same 
lands  for  the  purpose  of  building  highway 
bridges  across  the  Platte  river,  impairs  the 
obligations  of  the  contract  between  the 
state  and  the  companies,  and  is  unconstitu- 
tional and  void.      Koen^  v.  Omaha  Ss^  N. 

IV,  R.  Co.,  3  Ne6.  373.— Reviewed  in  State 

V.  Sioux  City  &  P.  R.  Co.,  7  Neb.  357, 
Where  a  company  has  received  a  grant  of 

land  from  the  state  upon  condition  that  it 
would  build  a  railroad  from  one  town  to 
another,  it  has  no  authority  whatever  after- 
wards to  abandon  any  portion  of  such  line 
and  take  up  and  remove  the  track.  The 
unprofitableness  of  operating  the  road  fur- 


nishes no  excuse  whatever  for  a  failure  to 
comply  with  the  conditions  of  the  grant. 
State  V.  Sioux  City  <S^  P.  R.  Co.,  7  Ae6.  357. 

A  company  in  accepting  n  grant  from  the 
state  thereby  enters  into  a  contract  with  the 
state  >  build  and  maintain  its  line  and 
operate  the  same,  and  the  state  may  enforce 
the  contract  by  mandamus  or  other  appro- 
priate proceeding.  State  v.  Sioux  City  &' 
P.R.  Co.,  7  AV-i-.  357. 

A  patent  issued  by  the  governor  of  a  state 
in  pursuance  of  an  express  grant  is  not  void 
upon  its  face,  and  passes  the  legal  title  to 
the  property  therein  granted.  It  may  be 
impeached  for  fraud,  or  set  aside  for  other 
sufficient  cause,  but  cannot  be'  assailed  col- 
laterally. State  V.  Sioux  City  &>»  P.  R.  Co., 
7  Neb.  357. 

'  The  grant  of  lands  to  the  Burlington  & 
Missouri  River  R.  Co.  was  of  a  present  in- 
terest, and  effective  against  adverse  claim- 
ants, as  to  all  of  the  odd-numbered  sections 
not  excepted  in  the  grant  on  each  side  and 
within  twenty  miles  of  the  line  of  the  road, 
itnmediately  upon  and  from  its  definite 
location  upon  the  ground,  which  was  done 
June  1 5,  1 865.  As  to  such  lands,  no  specific 
selection  by  numbers  was  necessary  to  the 
perfection  of  the  company's  right.  Vance 
V.  Burlington  &'  M.  R.  R.  Co.,  10  Am.  6«» 
Eng.  R.  has.  623,  12  Neb.  285,  1 1  A'.  W.  Rep. 

334- 

123.  New  Jersey.— All  grants  of  privi- 
leges by  the  state  are  subject  to  its  right  to 
prescribe  the  conditions  upon  which  they 
shall  be  enjoyed.  Delaware,  L.  <&»  W.  R. 
Co.  V.  Central  S.  V.  &•  T.  Co.,  31  Am.  <S- 
Eng.  R.  Cas.  82,  4;  N.  J.  Eg.  71,  o  Cent. 
Rep.  Ill,  10  At  I.  A  i).  490;  affirmed  in  43 
N.J.  Eg.  605. 

That  a  power  granted  will  not  be  suffi- 
cient to  effect  the  object  will  not,  by  impli- 
cation, enlarge  the  power,  unless  it  appears 
that  the  legislature,  in  granting  it,  knew 
that  such  construction  was  necessary  to 
effect  the  object.  The  applicants  must  see 
to  it  that  the  power  conferred  is  sufficient 
to  effect  the  purpose.  Thus  a  grant  of  the 
power  to  construct  a  railroad  "along"  a 
river  does  not  include  the  power  to  con- 
struct it  "  upon  "  the  river,  unless  the  power 
appears  from  the  grant  itself.  Stevens  v. 
PZrie  R.  Co.,  21  N.J.  Eg.  259. 

Lands  below  high-water  mark,  constitut- 
ing the  shores  and  subinerged  lands  of  the 
navigable  waters  of  the  state  of  New  Jersey, 
belonged  to  the  state,  and  could  be  con- 


1 


I      , 


ISO 


LAND  GRANTS,  124-120. 


veyed  independent  of  the  adjacent  riparian 
owner.     Therefore  the  act  of  that  state  of 
March  31,  1869,  authorizing  a  sale  of  certain 
of  such  shore  lands  to  railroads,  conveyed 
title,  with  the  right  to  hold  and  use  the 
same  free  of  any  claim  of  a  riparian  owner. 
llohoken  v.  Pennsylvania  R.  Co.,  124  U.  S. 
656,  8  Sup.  Ct.  Kep.  643.— Followed  in 
Elizabeth  v.  Central  R.  Co.,  53  N.  J.  L.  491. 
Prior  to  November  12,  1874,  there  was  a 
public  higliway  extending  through  the  Eliz- 
abetlitown    Point  tract  to    the  waters    of 
Arthur's   Kill,  and   on   that  day  the  state 
granted  to  the  Central  R.  Co.  of  New  Jer- 
sey the  land  below  the  original  high-water 
line  in  front  of  the   highway,  with  all  the 
rights  of  the  state  therein.    Held,  that  the 
highway  did  not  thereafter  extend  below 
the  original  high- water  line  over  land  artifi- 
cially reclaimed.    Elizabeth  v.  Central  R. 
Co.,  53  A^./.  Z.  491,  22  Atl.  Rep.  47.— Dis- 
tinguishing Hoboken  L.  &  I.  Co.  v.  Mayor, 
etc.,  of  Hoboken,  36  N.  J.  L.  340.     Follow- 
ing Hoboken  v.  Pennsylvania  R.  Co.,  124 
U.  S.  656. 

124.  New  York.— The  state  has  no 
power  to  grant  a  railroad  company  a  strip 
of  land  under  water  along  a  navigai)le  river 
so  as  to  cut  off  access  to  the  water  by  the 
upland  owner.  Saunders  v.  New  York  C. 
<S-  H.  R.  R.  Co.,  71  Hun  153,  54  N.  Y.  S.  R. 
364,  24  .^V.  F.  Supp.  659 ;  affirming  23  A'.  Y. 
Supp.  927,  30  Abb.  N.  Cas.  88 ;  modified  and 
affirmed  in  144  A^.  Y.  75,  38  A^  E.  Rep.  992. 

125.  Tennessee.— Where  a  legislature, 
by  charter,  authorizes  a  company  to  build  a 
railroad  through  certain  vacant  lands,  and 
in  said  charter  grants  to  the  company  the 
exclusive  right,  up  to  a  limited  time,  to  en- 
ter said  lands  along  said  road  within  certain 
limits,  where  the  same  should  become  sub- 
iect  to  entry — held,  that  such  right  of  ac- 
quisition of  the  fee  is  not  in  the  nature  of  a 
condition,  either  precedent  or  subsequent, 
to  the  other  privileges  vested  '\v  the  char- 
ter, and  a  failure  of  the  company  to  enter 
the  land  cannot  affect  other  rights  granted 
by  the  charter,  altogether  independent  of 
the  right  of  soil.  Davis  v.  East  Tenn.  &* 
G.  R.  Co.,  I  Sneed  {Tenn.)  94. 

Where  the  legislature  grants  a  charter  to 
a  railroad  company  authorizing  the  con- 
struction of  its  road  through  vacant  and 
unappropriated  lands  of  the  state,  and  said 
charter  is  accepted,  and  the  company  locates 
and  constructs  its  road  accordingly,  any 
subsequent  enterer  of  said   land  becomes 


invested  with  the  ultimate  fee-simple  inter- 
est in  the  soil,  subject  to  the  right  of  way 
so  granted  to  tlie  company,  and  is  not  en- 
titled to  damages  for  any  injury  which  said 
land  may  have  sustained  by  reason  of  the 
construction  of  said  road  within  the  bounds 
so  granted  by  the  ciiarter.  The  charter  in 
such  case  is  an  absolute  and  unqualiilcd 
grant  of  the  right  of  way,  founded  upon  liie 
considerati(jn  of  benefit  to  the  public  and 
the  enhanced  value  of  the  adjacent  lands. 
Davis  v.  East  Tenn.  &•  G.  R.  Co.,  i  Snced 
{Tenn.)  94. 

120.  Texas.*— Where  a  state  makes  a 
grant  of  lands  to  a  railroad  company,  with 
,•>  t^.-ovision  for  forfeiture  upon  certain  condi- 
t  o'.s  subsequent,  and  the  stete  afterwards 
enters  the  civil  war,  whereby  it  renders  the 
performance  of  the  conditions  impossible, 
the  grant  does  not  thereby  become  absa- 
lute ;  but  a  court  of  equity  will  regard  the 
conditions  as  if  no  particular  time  for  per- 
formance were  specified,  and  require  per- 
formance within  a  reasonable  time.  Davis 
V.  Gray,  16  Wall.  {(/.  S.)  203, 4  Am,  Ry.  Rep. 
i34.~FoLLOWF,D  IN  Houston  &  T.  C.  R. 
Co.  V.  Texas  &.  P.  R.  Co.,  70  Tex.  649,  8  S. 
W.  Rep.  4.g8.— Houston  &^  G.  N.  R.  Co.  v. 
Kuechler,  36  Tex.  382. 

The  6th  section  of  the  loth  article  of  the 
Constitution  of  1869  prohibits  the  grant  of 
land  and  the  issuance  of  land  certificates, 
except  to  actual  settlers,  etc.  Held,  that 
this  provision  is  prospective  only,  and  does 
not  affect  rights  to  land  acquired  by  rail- 
road companies  under  previous  laws. 
Houston  (&>•  G.  N.  R.  Co.  v.  Kuechler,  36 
Tc.v.  382. 

The  7th  section,  article  10,  of  the  Con- 
stitution of  1869  provides  that  "all  lands 
granted  to  railroad  companies,  which  have 
not  been  alienated  by  said  companies  in 
conformity  with  the  terms  of  their  charters, 
respectively,  and  the  laws  of  the  state  under 
which  the  grants  were  made,  are  hereby  de- 
clared forfeited  to  the  state  for  the  benefit 
of  the  '  School  Fund.'  "  Held,  that  this 
provision  cannot  preclude  the  appellant 
from  recovering  land  certificates  to  wliicii 
it  acquired  a  right  under  laws  enacted  prior 
to  the  adoption  of  the  constitution.  Hous- 
ton <&-  G.  N.  R.  Co.  V.  Kuechler,  36  Tex.  382. 

The  alternate  or  even  sections  of  land  re- 
served for  the  use  of  the  state  by  the  act  of 

•Conflict  of  title  of  railway  and  school  land 
grants  under  Texas  constituiion  and  laws,  see 
43  Am.  &  Eng.  R.  Cas.  542,  abstr. 


Ai 


LAND    GRANTS,  127,  128. 


187 


Feb.  4,  1856,  incorporating  the  Memphis, 
El  Paso  &  P.  R.  Co.,  when  surveyed  and 
delineated  on  the  map  of  the  district  sur- 
veyor, ceased  to  be  public  land,  and  cannot 
again  be  regarded  as  a  part  of  the  public 
domain,  so  as  to  subject  them  to  location, 
Kuechlcr  v.  Wright,  40  Tex.  600.— Rkvikw- 
ING  Wilcox  V.  Jackson,  13  Pet.  (U.S.)  498. 

In  the  issuance  of  certificates  to  railroads 
the  commissioner  of  the  general  land 
olHce  is  as  much  beyond  judicial  control  as 
the  comptroller  in  the  issuance  of  bonds,  or 
the  governor  in  the  discharge  of  any  of  his 
official  duties,  and  cannot  be  controlled  by 
mandamus  or  otherwise.  Galveston,  B.  <S>»  C. 
N,  G.  A'.  Co.  V.  Gross,  47  Tex.  428. 

The  act  granting  the  appellant  si.\teen  sec- 
tions of  land  per  mile  of  completed  road  is 
governed,  as  to  the  kind  of  certificates  to  be 
issued,  by  the  general  law,  and  the  railroad 
company  is  not  entitled  to  certificates  under 
its  land  grant  otherwise  than  on  the  alter- 
nate-section plan.  Galveston,  B.  <3»  C.  N. 
G.  R.  Co.  V.  Gross,  47  Tex.  428. 

Const,  of  1876,  art.  7,  §  2,  provides  .  lat  all 
lands  already  set  apart  for  the  support  of 
public  schools,  and  all  the  alternate  sections 
of  land  reserved  by  the  state  out  of  railroad 
grants,  and  half  of  the  public  domain  of  the 
state  shall  be  set  apart  for  a  perpetual 
school  fund.  Held,  that  the  reservation 
does  not  entitle  the  state  to  half  of  the  sec- 
tions to  be  granted  to  railroads,  in  addition 
to  the  sections  rest.'ved  to  the  state.  Gal- 
veston,  H.  &*  S.  A.  R.  Co.  v.  State,  77  Tex. 
367,  12  S.  W.  Rep.  988,  135.  W.  Rep.  619. 

It  was  the  intention  of  the  above  consti- 
tutional provision  to  place  beyond  legisla- 
tive control  whatever  portion  of  the  public 
domain  might  remain  after  the  execution  of 
the  enumerated  purposes;  but  the  reserva- 
tion of  one  half  of  the  public  domain  for 
scliool  purposes  did  not  appropriate  one 
half  of  all  the  land  then  constituting  the 
public  domain.  Galveston,  H.  &*  S.  A.  R. 
Co.  v.  State,  77  Tex.  367,  12  6'.  W.  Rep.  988, 
13  .S".  IV.  Rep.  619. 

The  statute  (Act  of  August  16,  1876) 
touching  grants  of  land  to  railway  com- 
panies is,  "That  any  railway  company  here- 
tofore chartered,  or  which  may  be  hereafter 
organized  under  the  general  laws  of  the 
state,  shall,  upon  completion  of  a  section  of 
ten  miles  or  more  of  its  road,  be  entitled  to 
receive  and  there  is  hereby  granted  to  every 
such  railway  from  the  state,  sixteen  sections 
of  land  for  every  mile  of  its  road  so  com- 


pleted and  put  in  good  running  order." 
The  grant  is  intended  to  enure  upon  the 
construction  of  ten  miles  of  lineal  extension 
of  the  road,  and  not  upon  the  construction 
of  such  number  of  miles  of  track  made  up 
together  with  the  main  lino  and  side  tracks 
used  in  connection  witii  it.  Tlic  riglit  to 
lands  extends  only  to  the  miles  of  exten- 
sion of  completed  road  upon  its  line,  and 
not  to  side  tracks.  Galveston,  H.  &■•  S.  A. 
R.  Co.  v.  State,  51  Am.  &*  Eng.  R.  Cas.  287, 
81  Tex.  572,   17  S.  IV.  Rip.  67. 

127.  Wisconsin.  — Chapter  10,  Laws 
1882,  revoking  the  grant  of  certain  lands  to 
the  C,  P.  &  S.  R.  Co.,  and  conferring  -'e 
same  upon  the  C,  St.  P.,  M.  &  O.  R. 
provided  that  the  latter  company  slio>.ld 
pay  to  the  governor  of  the  state  a  certain 
sum  of  money,  to  be  by  him  expended  in 
•paying  the  claims  of  laborers,  sub-contract- 
ors, and  material  and  supply  men,  for  labor 
and  supplies  done  and  furnished  in  and 
about  the  grading  and  other  work  done  by 
or  under  the  auspices  of  the  former  com- 
pany. The  governor,  in  distributing  the 
fund  so  provided,  construed  the  vvord  "  la- 
borers," as  employed  in  the  act,  as  intended 
to  designate  those  only  who  had  performed 
manual  la  >or  in  and  about  said  work,  and 
refused  to  disburse  any  of  said  fund  to  the 
members  of  the  engineer  corps  or  the  assist- 
ant general  manager  of  the  C,  P.  &  S.  R. 
Co.  His  proceedings  having  been  brought 
before  this  court  for  review  by  certiorari 
— held:  (\)  that  the  governor  correctly  in- 
terpreted the  act  above  mentioned  ;  (  2)  that 
within  the  limits  prescribed  in  said  act  the 
legislature  had  vested  in  the  governor  plen- 
ary discretion  in  the  distribution  of  the  fund 
therein  mentioned,  and  the  regularity  of  his 
action  in  that  behalf  can  be  questioned 
only  by  that  body.  State  ex  rel.  v.  Rusk, 
10  Am.  Sf  Eng.  R.  Cas.  642,  55  Wis.  465, 
13  A^.  W.  Rep.  ^^2. 

t 

v.  0BANT8  OF  SWAKP  LANDS. 

138.  Federal  decisions.— The  lands 
granted  to  the  state  of  Iowa  by  the  Act  of 
Congress  of  May  15,  1856,  to  aid  in  building 
railroads,  did  not  embrace  the  swamp  lands 
granted  to  the  state  by  the  act  of  Sept.  28, 
1856,  the  act  of  1856  reserving  such  as  had 
been  previously  "  sold  or  otherwise  disposed 
of."  Burlington  «S-  M.  R.  R.  Co.  v.  Fre- 
mont County,  9  Wall.  {U.  S.)  89. 

Under  the  grant  of  1856,  the  title  to  the 


I 
§ 


188 


LAND  GRANTS,  129. 


various  sections  did  not  vest  in  the  railroad 
company  until  the  line  of  the  roiid  was  defi- 
nitely fixed.  The  grant  was  in  the  nature 
of  a  float  until  tliis  line  was  permanently 
fixed.  Burlington  &^  M.  li.  Ji.  Co.  v.  Fre- 
mont County,  9  Wall.  (U.  S.)  89.— FoL- 
LowKiJ  IN  Hannibal  &  St.  J.  R.  Co.  v.  Smith, 
9  Wail.  95;  Burlin^rion  &  M.  R.  R.  Co.?/. 
Mills  County,  19  Law.  Ed.  (U.  S.)  565. 
QuoTKU  IN  American  Emigrant  Co.  v. 
Chicago,  R.  I.  «&  P.  R.  Co.,  47  Iowa  515. 

When  there  is  a  dispute  as  to  whether 
lands  were  embraced  in  a  swamp-land  grant, 
era  railroad  grant,  it  is  competent  to  prove 
their  character  by  witnesses  who  have  a  per- 
sonal knowledge  of  the  lands.  Hannibal^' 
St.  J.  R.  Co.  V.  Smith,  9  Wall.  {U.  S.)  95.— 
DisiiNUUiSHED  IN  lowa  R.  Land  Co.  v. 
Aiitoiiie,  52  Iowa  429.  Reviewed  in  Hays 
V.  McCormick,  83  Iowa  89 ;  State  v.  Central 
Pac.  R.  Co.,  40  Am.  &  Eng.  R.  Cas.  467,  20 
Nev.  372. 

A  certain  Iowa  county  claimed  lands  as 
swamp,  deriving  title  from  the  United 
States  througii  the  state.  A  railroad  com- 
pany claimed  the  same  lands  under  a  <;;rant 
for  railroad  purposes.  Pending  litigation 
to  settle  the  title,  a  compromise  was  entered 
into  by  which  the  county  was  to  convey  the 
fiiilroad  certain  lands  and  pay  $10,000  for 
lands  already  sold.  Afterwards  the  county 
sued  to  set  aside  the  compromise,  and  tlie 
niilroad  sued  to  recover  the  §10,000,  and  the 
suits  were  heard  together.  Held,  that  the 
county  could  not  go  back  to  the  act  of  con- 
gress granting  the  lands  to  the  state  for  the 
purpose  of  showing  that  the  land  was  dis- 
posed of  contrary  to  the  trust  thereby 
created,  that  being  a  matter  between  the 
United  States  and  the  state.  Mills  County 
v.  Burlington  &^  M.  R.  R.  Co.,  10  Am.  &* 
Eng.  R.  Cas.  693,  107  (/.  S.  557,  2  Su/>.  Ct. 
Rep.  654. 

In  such  case,  after  the  compromise  was 
entered  into  the  U.  S.  supreme  court  decided 
in  favor  of  the  county.  Held,  that  this  did 
not  abrogate  the  compromise,  the  parties 
still  acting  under  it ;  and  a  judgment  of  a 
state  court  sustaining  the  compromise,  in  the 
suit  brought  to  set  it  aside,  was  not  repug- 
nant to  the  former  decision  of  the  U.  S. 
supreme  court.  Mills  County  v.  Burlington 
&•  M.  R.  R.  Co.,  10  Ant.  &^  Eng.  R.  Cas. 
693.  107  U.  S.  557,  2  Su/>.  Ct.  Rep.  654. 

All  swamp  and  overflowed  lands  granted 
under  the  Act  of  Congress  of  Sept.  20, 1850, 
were  excepted  out  of  the  grant  of  June  10, 


1852,  of  lands  to  the  state  of  Missouri  for 
railroad  purposes,  so  far  as  one  would  inter- 
fere with  the  other.  Hannibal  &^  St.  J.  R. 
Co.  v.  Smith,  9  Wall.  (U.  S.)  95.— yuuTED 
IN  Chicago,  R.  I.  &  P.  R.  Co.  7/.  Brown,  40 
Iowa  333.  Reviewed  in  Wabash,  St.  L. 
&.  P.  R.  Co.  V.  McDougal,  113  111.  603. 

The  grant  of  swamp  lands  to  each  of  the 
states  of  the  Union  by  the  act  of  Septem- 
ber 28,  1850  (9  St.  at  L.  519),  applied  only  to 
the  then  existing  states;  and  the  subsequent 
admission  of  a  state,  under  an  act  which 
provided  tliat  all  laws  of  the  United<States 
not  locally  imipplicable  should  have  the 
same  force  and  effect  within  that  state  as 
in  other  states  of  the  Union,  did  not  work  a 
grant  of  swamp  lands  UTider  the  act  of  1850. 
Rice  V.  Sioux  City  &*  St.  P.  R.  Co.  4  Am. 
<5~»  Eng.  R.  Cas.  549,  110  i/,  5.  61^  4  Sup. 
Ct.  Rep.  177- 

The  Swamp-land  Act  of  1850  grants  over- 
flowed Ian  Is  to  the  several  states  to  be 
drained  and  reclaimed.  Subsequently  por- 
tions of  the  granted  lands  are  sold  by  the 
United  States  to  innocent  purchasers.  Ul- 
timately an  act  is  passed  authorizing  patents 
to  issue  to  them,  and  to  indemnify  each 
state  by  allowing  it  to  locate  a  like  quantity 
upon  any  of  the  public  lands  subject  to 
entry.  A  secretary  of  the  interior  decides 
that  this  right  must  be  confined  to  lands 
within  the  state  ;  also,  that  the  claimant  is 
not  entitled  to  swamp  lands  reserved  from 
entry  and  sale  by  the  president  |)ursuant  to 
the  Illinois  Central  Railroad  Act  of  1850. 
Held,  that  this  decision  is  binding  on  suc- 
ceeding secretaries,  and  they  can  neither 
reverse  it  nor  open  it  by  transferring  a  claim 
to  the  court  of  claims.  Illinois  v.  United 
Sttttes,  20  Ct.  of  CI.  342. 

12J).  Arkansas. — The  act  of  March  13, 
1879,  "to  authorize  the  commissioner  of 
state  lands  to  settle  by  compromise  the  con- 
flict of  title  between  the  state  and  the  rail- 
road companies,  to  selected  and  unapproved 
swamp  and  overflowed  lands,"  did  not  con- 
firm the  title  to  swamp  lands  which  had 
been  sold  by  the  railroad  companies.  If  was 
an  offer  to  make  a  compromise  which  was 
never  accepted  by  the  companies.  Chism  v. 
Price,  54  Ark.  251,  15  S.  W.  Rep.  883,  1031. 

The  Act  of  the  Legislature  approved  Jan- 
uary II,  1851,  empowering  the  board  of 
swamp-land  commissioners  to  demand  of 
and  receive  from  the  United  States  indem- 
nity "  for  any  swamp  and  overflowed  lands 
within  this  state  which  have  been  sold  or 


LAND   GKAN'lb,  i;iO,  ItJl. 


disposed  of  by  the  United  States  since  the 
28th  day  of  September,  1850,  or  which  may 
liereafter  be  sold  or  disposed  of  by  the 
United  States,"  did  not  authorize  tlie 
United  States  to  grant  to  railroad  compa- 
nies lands  embraced  within  the  swamp-land 
grant.  Chism  v.  Price,  54  Ark.  251,  15 
5.  W.  Rep.  883,  103 1. 

The  r  .ilroad-grant  Act  of  Congress  of 
1853  did  not  include  swamp  and  overflowed 
lands  previously  granted  to  the  state. 
Chism  V.  Price,  54  Ark.  251,  156'.  W.  Rep. 
883.  1 03 1. 

The  Act  of  the  Legislature  approved  Jan- 
uary 19,  1855,  "fixing  the  line  of  the  Little 
Rock  h  Fort  Smith  branch  of  the  Cairo 
&  Fulton  railroad,  and  granting  the  lands 
donated  by  congress  to  the  state  in  aid 
thereof,"  did  not  convey  to  the  railroad 
any  lands  embraced  within  the  swamp-land 
grant.  Chism  v.  Price,  54  Ark.  251,  15  S. 
W.  Rep.  883.  1031. 

The  Act  of  the  Legislature  of  December 
14,  1875,  which  ratified  and  confirmed  the 
titles  to  lands  selected  by  the  state  as  ^  wanip 
and  overflowed  which  had  been  disposed  of 
by  the  United  States  either  for  cash  or  in 
payment  of  military  or  county  warrants  or 
scrip,  does  not  apply  10  lands  granted  by 
the  United  States  in  aid  of  railroads.  Chism 
V.  Price,  '54  Ark.  251,  15  S.  IV.  Rep.  883, 
1031. 

The  act  of  the  governor  in  transmitting 
to  the  general  land  oflice  the  list  of  lands 
claimed  by  the  railroad  under  the  railroad 
grant  does  not  estop  the  state  to  claim 
swamp  lands  included  in  such  list.  Chism 
V.  Price,  54  Ark.  251,  15  S.  IV.  Rep.  883, 
103 1. 

Tiie  approval  by  the  general  land  depart- 
ment, of  the  railroad's  list  of  selected  lands, 
was  not  a  determination  that  the  lands  em- 
braced had  not  passed  to  the  state  by  the 
swamp  grant.  The  failure  of  the  land  de- 
partment to  determine  this  question  leaves 
this  matter  open  for  judicial  determination. 
Chism  V.  Price,  54  Ark.  251,  15  S.  IV.  Rep, 
883,  1031. 

130.  Florida.  —  The  legislature  in- 
tended that  the  trust  created  by  §  2  of  the 
Internal  Improvement  Act  should  be  sub- 
ject to,  and  to  some  extent  controlled  by, 
its  subsequent  provisions.  Section  29  of 
this  act,  reserving  to  the  general  assembly 
the  power  to  grant  alternate  sections  of 
swamp  and  overflowed  lands  to  railroad 
companies  to  the  extent  therein  mentioned, 


operated  as  a  limitation  upon  the  trust  and 
the  power  of  tlie  trusiccs.  Internal  Imp. 
I'lind  Trustees  v.  St.  Johns  R,  Co..  16  P'/n. 

S3I- 

Section  13  of  the  act  oi  1858,  chartering  the 
St.  Johns  R.  Co.,  and  denoting  the  alternate 
sections  of  swamp  lands  for  six  miles  du 
each  side  oi  the  road,  harmonizes  with  tlie 
purposes  of  the  act  of  congress  in  grantiiy 
these  lands,  and  with  the  Internal  improve- 
ment Act,  and  does  not  impair  the  oblii;u- 
tion  of  any  contract  between  creditors 
of  tlie  trust  fund  and  the  state  or  trustees 
of  the  internal  improvement  fund.  Inter- 
na/ Imp.  Fund  Trustees  v.  St.  Johns  R.  Co. , 
16  I'ia.  531. 

Tlie  power  of  one  legislature  is  not  lim- 
ited by  the  act  of  an  antecedent  one,  unless 
the  act  of  the  first  is  of  such  a  character  as 
to  call  into  operation  a  constitutional  lim- 
itation upon  the  power  of  the  second.  The 
Internal  Improvement  Act  is  not  organic 
law.  Internal  Imp.  Fund  Trustees  v.  St. 
Johns  R.  Co.,  16  Fla.  531. 

A  grant  of  land  by  the  state  to  a  corpora- 
tion having  power  to  make  contracts  for  the 
purpose  of  accomplishing  corporate  pur- 
poses is  not  a  grant  to  the  original  incorpo- 
rators signing  the  articles  'luthorized  by  the 
general  law  of  the  state  in  the  proportion 
in  which  they  have  subscribed  for  stock,  nor 
does  it  authorize  a  division  or  an  allotment 
of  the  land  to  the  original  incorporators. 
Bro7vn\.  Florida  Southern  R.  Co.,  16  Am. 
&*  Eng.  R.  Cas.  463,  19  Fla.  i,i2. 

131.  Iowa  — (i)  Ingeneral. — Underthe 
statutes  it  is  competent  for  the  people  of  a 
county  to  appropriate  its  swamp  lands  to 
the  construction  of  a  railroad  in  the  county; 
and  the  proposition  so  to  appropriate  them 
may  be  lawfully  submitted  to  a  vote  of  the 
people  without  submitting  therewith  the 
contract  for  the  construction  of  the  road, 
and  even  before  such  contract  is  made. 
Parks  V.  loava  C.  R.  Co. ,  24  Io7va  1 88. 

Where  a  proposition  for  appropriating 
the  swamp  and  overflowed  lands  of  a  county 
to  aid  in  the  construction  of  a  railroad  had 
been  ratified  by  the  voicrs  of  a  county,  and 
a  contract  in  accordance  therewith  had  been 
made  with  the  company,  the  contract  can- 
not be  extended  to  embrace  a  cash  indem- 
nity paid  by  the  government  to  the  county 
for  swamp  lands  sold  before  selection.  A 
subsequent  act  of  the  legislature,  whose 
preamble  recited  thnt  "  the  proceeds  "  of  the 
swamp  lands  had  been  donated  to  the  com- 


h'  '■ 


I 


I 


■.i---!p: 


190 


LAND   GRANTS,  131. 


pany,  was  held  invnlid  to  support  its  claim 
to  the  indemniiy.  Palmer  v.  Howard 
County,  45  Joiva  6i. 

The  title  of  the  swamp  and  overflowed 
lands,  granted  to  the  stiite  by  Act  of  Con- 
gress, Sept.  28,  1S50,  remaining  vacant  and 
unappropriated,  iliat  had  been  selected  and 
reported  to  the  general  land  office,  was,  by 
the  Act  of  Congress,  March  3,  i857,inunedi- 
ately  vested  m  the  stale,  and  the  state  could 
thereupon  demand  their  certification,  and 
the  act  of  the  commissioner  of  the  general 
land  olfice  in  certifying  these  swamp  lands 
within  the  limits  of  the  railroad  grants,  as  a 
part  of  such  grants,  is  in  contravention  of 
the  vested  rights  of  the  counties  and  void. 
Montgomery  County  v.  Biirlini^ton  (S^•  M.  K. 
J\.  Co.,  38  Iowa  208. — Following  Fremont 
County  V.  Burlington  &  M.  R.  R.  Co.,  22 
Iowa  91,  9  Wall.  (U.  S.)  89. 

The  Act  of  Congress  of  Sept.  28,  1850, 
granting  swamp  and  overflowed  lands  to  the 
State,  operated  to  convey  a  present  title, 
without  a  patent  or  formal  conveyance. 
C/ikago,  K.  I.  &'P.  A'.  Co.  v.  Bro^vn,  \olowa 
333. — yuoTiNG  Hannibal  &  St.  J.  R.  Co. 
V.  Smith,  9  Wall.  (U.  S.)  95. — Page  County  v. 
Burlington  &>  Af.  P.  P.  Co.,  4.0  Iowa  520. 
— Explained  in  Connors  v.  Meservey,  76 
Iowa  691. 

The  title  of  the  state's  grantee  to  any 
portion  thus  granted  is  not  defeated  by  the 
fact  that  such  portion  was  omitted  from  the 
list  of  swamp  lands  finally  approved  by  the 
secretary  of  the  interior,  whereby  it  was 
never  patented  to  the  state,  it  appearing  that 
the  omission  was  the  result  of  a  mistake. 
In  the  absence  of  a  patent,  parol  evidence 
is  admissible  to  show  that  land  claimed  to 
be  swamp  is  embraced  within  the  grant  to 
the  state.  Chicago,  P.  I.  &*  P.  P.  Co.  v. 
Brown,  40  loma  333. 

Under  the  Act  of  Congress  of  March  3, 
1857,  confirming  and  approving  the  selec- 
tions of  sv/amp  lands  which  had  been  there- 
tofore made  and  reported  to  the  general 
land  office,  the  title  to  all  lands  which  had 
been  so  selected  and  which  remained  va- 
cant vested  absolutely  in  the  state,  whether 
the  same  were  or  were  not  actually  swamp, 
American  Emigrant  Co.  v.  Chicago,  R.  I.  &» 
P.  P.  Co.,  4.7  Iowa  515.— Following  Fre- 
mont and  M.  Counties  v.  Burlington  &  M. 
R.  R.  Co.,  22  Iowa  91. 

The  authority  of  agents  appointed  by  the 
county  court,  under  section  927  of  the  Re- 
vision, to  select  swamp  lands  should  appear 


by  the  records  of  the  court ;  where  such 
authority  appeared  only  by  the  affidavit  of 
a  former  county  judge,  made  and  attached 
to  the  list  subsequent  to  the  selection,  and 
it  did  not  appear  that  the  list  had  ever  been 
forwarded  to  and  approved  by  the  surveyor 
general,  or  the  land  department  of  the 
United  States,  it  was  incompetent  as  evi- 
dence of  title  in  the  county.  lUtena  Vista 
County  v.  Iowa  Palls &•  S.  C.  P.  Co.,  55  Iowa 
157,  7  A'.   W.  Pep.  474. 

A  resolution  of  the  board  of  supervisors 
cannot  operate  as  a  formal  conveyance  of 
the  title  of  the  county  to  swamp  lands. 
Chapter  32,  Laws  of  1862,  authorizing  a  con- 
veyance in  that  way  of  certain  lands  owned 
by  the  county,  applies  only  to  those  therein 
specified.  Tama  County  v.  Melendy,  55  loiva 
395.  7  ^-  W'.  Pep.  669. 

A  party  who  takes  possession  of  swamp 
lands  after  the  board  of  supervisors  of  the 
county  wherein  the  lands  are  situated  has 
refused  to  accept  the  price  offered,  as  it  had 
a  right  to  do  in  pursuance  of  an  order  of  the 
county  court  withdrawing  such  lands  from 
sale,  acquires  no  legal  or  equitable  title  to 
the  land.  Chicago,  li.  &•  Q.  P.  Co.  v.  Jack- 
son, 24  Am.  &*  Eng.  P.  Cas.  105,  68  Iowa 
301,  27  N.   M'".  Pep.  248. 

(2)  Illustrations. —  Certain  lands  were 
certified  to  defendants  under  a  railroad 
grant,  and  while  holding  such  title  they 
paid  the  taxes  levied  thereon.  In  an  action 
in  equity  to  quiet  title  it  was  adjudged  that 
the  lands  passed  to  plaintiff's  grantor  under 
the  prior  swamp-land  grant ;  whether  or  not 
they  passed  under  such  grant  was  largely  a 
question  of  fact,  depending  upon  the  char- 
acter of  the  lands.  Held,  that  the  plaintiff 
should  be  required  to  reimburse  the  defend- 
ants for  the  taxes  paid  prior  to  the  deter- 
mination of  such  question.  American  Em- 
igrant Co.  V.  Iowa  P.  Land  Co.,  52  lo^va 
323,  3  A^.  W.  Rep.  88.— Distinguishing 
Iowa  Homestead  Co.  v.  Valley  R.  Co.,  17 
Wall.  (US.)  153. 

In  an  action  at  law  to  recover  certain 
lands  the  plaintiff  claimed  title  under  a  rail- 
road grant  and  introduced  in  evidence  the 
commissioner's  certificate,  approved  by  the 
secretary  of  the  interior.  Held,  that  parol 
evidence  was  not  admissible  to  impeach 
plaintiff's  title  by  showing  that  the  land  was 
in  fact  swamp,  and  hence  passed  under  a 
prior  swamp-land  grant.  Iowa  P.  Land 
Co.  V.  Antoine,  52  Iowa  429 ,  3  N.  W.  Rep. 
468.— Distinguishing  Hannibal  &  St.  J. 


^^mmmm^ 


LAND   GRANTS,  132. 


lf)l 


K.  Co.  V.  Smith,  9  Wall.  (U.  S.)  95.-F0L. 
i.owiiu  IN  Palmer  z/.  Boom,  80  Mo.  99. 

In  1S56  the  county  of  Mills  issued  a  certif- 
icate of  purclias'j,  which  entitled  the  holder, 
upon  full  payment,  to  a  deed  from  the 
CDuntv  to  a  certain  tract  of  land  enuring  to 
it  under  the  swamp-land  grant.  In  1870, 
while  such  certificate  was  still  outstandmg, 
the  county  conveyed  the  lands  to  the  de- 
fendant, and  possession  was  taken,  and  has 
since  been  held  thereunder.  The  plaintiti 
subsequently  acquired  the  certificate  and 
obtained  thereon  a  deed  from  the  county 
to  the  lands,  //</</,  that  such  deed  did  not 
convey  the  legal  title,  which  passed  by  the 
previous  conveyance  to  the  defendant,  but 
tliat  the  holder  of  the  certificate  helti  a  mere 
equity,  wliich  would  not  support  an  action 
at  law  against  the  legal  title.  Pendergast  v. 
Burlington  &*  M.  K.  R.  Co.,  53  /o7oa  326,  5 
A',  ir.  Rep.  171. 

It  sutliciently  appears  from  the  evidence 
in  this  case  (see  opinion)  that  there  was  on 
file  in  the  odice  of  the  commissioner  of  the 
general  land  office  a  claim  that  the  land  in 
question  was  included  in  the  swamp-land 
grant  of  September  28,  1850,  and  that  such 
claim  was  regarded  by  the  commissioner  as 
prima  facie  sufficient.  The  county  had 
conveyed  the  land  to  D.  as  swamp  land, and 
D.  had  conveyed  to  S.,  and  these  deeds  were 
of  record  in  the  proper  county.  S.  had  also 
deeded  to  defendant,  but  the  deed  was  not 
of  record.  Afterwards  the  Dubuque  & 
Sioux  City  R.  Co.  claimed  the  land  under 
Act  of  Congress  of  May  15, 1856.  The  com- 
missioner of  the  general  land  office,  upon 
what  evidence  does  not  appear,  decided  that 
the  land  was  not  swamp  land,  but  that  it 
enured  to  the  said  railroad  company,  and 
plaintiff  claims  under  said  company.  Held, 
that  this  decision  was  not  conclusive  upon 
the  defendant  and  those  under  whom  she 
claimed,  because  they  were  given,  and  had, 
the  right  to  appeal ;  and  while  it  appears 
tiiat  they  did  not  appeal,  it  was  incumbent 
upon  plaintiff  also,  in  order  to  bind  defend- 
ant by  that  decision,  to  prove  that  notice  of 
the  right  to  appeal  was  given  to  those 
claiming  under  the  swamp-land  grant, 
which  he  has  fail  d  to  do.  Consequently, 
defendant's  prima  facie  title  is  not  over- 
come. Ctnnors  v.  Meservey,  76  Imva  691, 
39  A^.  \V.  Rep.  388.  —  Explaining  Page 
County  7/.  Burlington  &  M.  R.  R.  Co.,  40 
Iowa  520. 

Whether  the  land  in  question  passed  un- 


der the  swamp-land  grant  depends  upon  its 
character  when  that  act  was  passed,  and 
evidence  of  its  character  at  the  time  of  the 
trial  of  the  action  was  properly  excluded. 
Connors  v.  Meservey,  76  Iowa  691,  39  N.  IV. 
Rep.  3S8. 

Plaintiff  in  his  petition  relied  upon  the 
decision  of  the  commissioner  of  the  general 
land  office  that  the  land  was  not  swampy, 
and  did  not  allege  that  it  \v:-i  not  in  fact 
swampy.  Held,  liiat  he  could  not  be  al- 
lowed, in  rebuttal,  to  introduce  evidence 
that  it  was  not  in  fact  swampy  at  the  time 
of  the  passage  of  the  swamp-land  grant. 
Connors  v.  Meservey,  76  Io7va  691,  39  ^V'.  W. 
Rep.  388.— FoLLowKU  iN  Snell  v.  Dubuque 
&  S.  C.  R.  Co.,  78  Iowa  88. 

The  lands  in  controversy  were  returned 
to  the  general  land  olRce  as  swamp  lands 
under  the  Swamp-land  Act  of  Congress  of 
1850,  but  in  1858  the  secretary  of  the  inte- 
rior certified  the  land  as  being  a  part  of  a 
grant  to  aid  in  building  a  railroad  fnjm  Du- 
buque to  Sioux  City  ;  said  grant  being  made 
subject,  however,  to  all  prior  sales  or  other 
disposition  within  its  limits.  The  land  was 
never  in  the  actual  occupation  of  any  one 
prior  to  the  commencement  of  this  action. 
Held,  that  the  fee-simple  title  to  the  land 
passed  to  the  state  by  virtue  of  said  Act  of 
Congress  of  1850,  and  to  the  county  by  the 
Act  of  the  General  Assembly  of  1853,  and 
the  legal  possession  thereunder  never  hav- 
ing been  disturbed  by  the  defendant  nor  its 
grantors,  this  action  was  not  barred  by  the 
statute  of  limitations.  American  Emigrant 
Co.  V.  Fuller,  83  Iowa  599,  50  N.  IV.  Rep.  48. 

1JJ2.  Minnesota.— The  Minn.  Act  of 
March  6,  1863,  granting  swamp  lands  to  the 
St.  Paul  &  Pacific  R.  Co.,  was  a  valid  con- 
tract, and  entitled  the  company  to  select,  in 
order  to  make  up  deficiencies  of  such  lands 
wiihin  the  prescribed  limits,  from  any  such 
lands  belonging  to  the  state  at  the  time  the 
right  to  select  became  perfect.  The  lands 
set  apart  by  the  commissioner  of  the  state 
land  office  to  the  purposes  named  in  the  act 
of  Feb.  13,  1865,  setting  apart  swamp  lands 
to  state  institutions,  could  only  be  lawfully 
set  apart  by  him  from  the  surplus  of  such 
lands  after  there  were  enough  to  fill  grants 
of  such  lands  by  the  state,  made  prior  to 
the  passage  of  that  act.  St.  Paul  &*  C.  R. 
Co.  V.  Hrffivn,  24  Minn.  517. 

The  swamp  lands  so  set  apart  to  the  trus- 
tees of  the  Hospital  for  the  Insane  belong 
to   the  state,  the  title   being  held   by  the 


"'.  $ 


10!2 


LAND  GRANTS,   liiii. 


trustees  for  it,  and  as  its  officers  or  agents, 
and,  there  not  being  enough  swamp  lands 
without  them  to  fill  the  grant  to  the  St. 
Paul  &  Pacific  K.  Co.,  are  subject  to  the 
right  of  selection  by  the  St.  Paul  &  Chicago 
R.  Co.,  the  successor  in  interest  of  the 
former  company,  to  make  up  the  deficien- 
cies of  such  lands  within  the  limits  pre- 
scribed in  the  act  of  March  6,  1S63.  6V. 
Pau/  &^  C.  A'.  Co.  V.  lirffWH,  24  Minn.  517. 

The  act  is  a  grant  of  seven,  and  not  four- 
teen, full  sections  per  mile.  St.  Paul  &» 
C.  A'.  Co.  V.  Brown,  24  Minn.  517. 

The  grant  of  swamp  lands  to  the  inter- 
venor  by  Sp.  Laws  1875,  ch.  54,  was  a  grant 
///  prasenti  upon  conditions  subsequent. 
Such  a  grant  is  not  forfeited  by  a  mere 
breach  of  the  conditions,  but  only  by  some 
atlirmative  action  on  part  of  the  state,  after 
the  breach,  declaring  or  asserting  the  for- 
feiture on  account  of  the  breach.  Hence, 
although  the  intervenor  defaulted,  yet,  it 
never  having  been  divested  of  the  grant  by 
any  declaration  or  assertion  of  forfeiture  by 
the  state,  the  condition  precedent  to  de- 
fendant's grant  has  never  been  performed 
or  fulfilled,  and  consequently  the  grant  has 
never  taken  eflect.  Minneapolis  iS^  St.  C. 
R.  Co.  v.  Dulitth  &^  IV.  R.  Co.,  46  Am.  &* 
Eng.  R.  Cas.  473,  45  Minn.  104,  47  A'.  W. 
Rep.  464. 

The  grant  to  intervenor  is  also  a  float 
grant,  but  the  right  of  selection  is  given  to 
the  grantee,  but  limited  to  the  three  coun- 
ties of  St.  Louis,  Cook,  and  Lake.  Minne- 
apolis &•  St.  C.  R.  Co.  V.  Duluth  (S-  IV.  R. 
Co.,  46  Am.  <S>»  Eng.  R.  Cas.  473,  45  Minn, 
104,  47  N.  IV.  Rep.  464. 

Sp.  Laws  1869,  ch.  56,  although  in  form 
an  amendment  to  Sp.  Laws  1865,  ch.  3,  is  in 
itself  a  complete  act,  making  a  "float" 
grant  to  the  plaintiff  in  aid  of  its  "  Hinck- 
ley" branch,  of  ten  sections  to  the  mile, 
without  any  limitation  as  to  the  locality 
where  the  lands  shall  be  selected.  But  the 
right  of  selection,  not  being  given  to  the 
plaintiff,  belongs  to  the  state,  which  may 
fill  the  grant  out  of  any  of  its  swamp  lands. 
Notwithstanding  the  grant  to  plaintiff,  the 
state  had  a  right  to  grant  any  of  its  swamp 
lands  to  any  one  else,  provided  only  that  it 
retained  enough  to  fill  plaintiff's  grant. 
Minneapolis  &>  St.  C.  R.  Co.  v.  Duluth  &* 
IV.  R.  Co.,  46  Am.  &•  Eng.  R.  Cas.  473,  45 
Minn.  104,  47  N.  W.  Rep.  464.— Reviewed 
IN  Northern  Pac.  R.  Co.  v,  Barnes,  2  N. 
Dak.  310. 


Sp.  Laws  1878,  ch.  246,  transferring  this 
grant  to  tlie  defendant  "  in  case  of  forfeiture 
by  said  Duluth  &  Iron  Range  R.  Co.,"  was  a 
grant  upon  a  condition  precedent,  to  wii, 
that  the  former  grantee  shall  be  divested  of 
tlie  grant,  and  the  same  become  rcinveslid 
in  tlie  state  because  of  a  breach  of  its  con- 
ditions. Minneapolis  &>  St.  C.  R.  Co.  v. 
Vulu/A  <Sr'  ir.  R.  Co.,  46  ./w.  &'  Eng.  A. 
Cas.  473,  45  Minn.  104,  47  A'.  II'.  l\',p.  464. 

Tliere  not  being  enough  swamp  lands  in 
the  three  counties  named  lo  fill  intcivenor's 
grant,  and  tliere  being  enough  outside  thee 
counties  to  fill  plaintitT's  giant,  the  stale 
had  no  right  to  appropriate  to  the  latter 
lands  in  tliese  counties,  at  least  after  inter- 
venor's  grant  had,  by  selection,  attached 
specifically  to  such  lands.  Minneapolis  iS- 
St.  C.  R.  Co.  V.  Dulut/i  d^•  ir.  R.  Co.,  46  Am. 
&^  Eng.  R.  Ciis.  473,45  Minn.  104,47  A'.  U'. 
Rep.  464. 

The  provision  in  this  grant  "that  no 
lands  shall  accrue  to  the  said  company  un- 
der this  act  until  all  grants  of  swamp  lands 
previously  made  shall  be  fully  satisfied," 
was  not  intended  to  postpone  the  appropri- 
ation of  any  land  to  iniervenor's  grant  until 
all  prior  grants  had  been  actually  filled  by 
the  selection  of  specific  lands  to  their  full 
amounts,  but  merely  to  provide  that  in  case 
there  were  not  enough  lands  to  fill  all  the 
grants,  including  intervenor's,  the  prior 
grantees  should  have  their  full  amounts, 
and  intervenor  stand  the  shortage.  Minne- 
apolis 6^  St.  C.  R.  Co.  V.  Duluth  £~  IV.  A. 
Co.,  46  Am.  (S-  Eng.  R.  Cas.  473,  45  Minn. 
104,  47  A^.  IV.  Rep.  464. 

133.  Missouri.— Under  Missouri  stat- 
utes a  district  court  of  a  county  has  power 
to  transfer  alternate  sections  of  swamp  lands 
of  the  county  to  a  railroad  company  in 
payment  of  a  subscription  to  the  company's 
stock,  made  by  the  county  court.  Dunklin 
County  ex  rel.  v.  District  County  Court,  23 
Mo.  449. 

A  writ  of  mandamus  will  not  lie  to  a 
county  court  directing  it  to  vacate  an  order 
selling  swamp  lands  to  a  railroad  company 
in  payment  of  a  subscription  of  stock,  and 
commanding  the  county  court  and  all  others 
to  desist  fr  ,in  carrying  said  order  into  exe- 
cution. Dunklin  County  ex  rel.  v.  District 
County  Court,  23  Mo.  449. 

The  Act  of  Congress  of  September  28, 
1850,  "to  enable  the  state  of  Arkansas  and 
other  states  to  reclaim  the  swamp  lands 
within  their  limits,"  operated  as  a  reserva- 


LAND  GRANTS,  133. 


193 


tioii  upon  the  grant  of  lands  made  to  Mis- 
souri for  the  construction  of  the  railroads 
described  in  the  Act  of  Conj^ress  of  June 
10, 1852  ;  and  in  a  suit  of  ejectment  brought 
by  the  railroad  corporation  clainuny  title 
to  lands  under  said  act  of  June  10,  1S52, 
parol  evidence  is  admissible  to  prove  that 
the  land  sued  for  was  "swamp  and  over- 
flowed lands,  made  thereby  unfit  for  cidti- 
viUion,"  so  as  to  brin},'  such  land  within  the 
tL-rni-!  of  the  fjrant  or  reservation  made  by 
tiic  act  of  September  28, 1S50,  although  the 
lists  and  plats  to  be  made  by  the  secretary 
of  ilie  interior,  provided  for  in  said  act,  had 
not  been  made  and  transmitted  to  the  gov- 
ernor, nor  patents  issued.  Such  parol  evi- 
dence is  not  admissible  to  prove  title  in 
defendant,  but  is  admissible  for  the  purpose 
of  rebutting  and  invalidating  the  effect  of 
the  lists  issued  under  the  Act  of  Congress 
of  June  10,  1852,  and  August  3,  1854.  Han- 
nibal &>  St.  J.  A'.  Co.  v.  SinM,  41  Mo. 
310. 

The  Act  of  Congress  of  September  28, 
1850,  constituted  a  present  grant,  vesting 
an  absolute  \.\t\G,  p>  ofirt'o  vigore,  in  the  state 
of  Missouri  to  such  lands  within  her  limits 
without  issue  of  patent.  The  failure  of  the 
secretary  of  the  interior  afterwards  to  per- 
form his  duty  in  making  out  the  lists  and 
plats  of  the  lands,  and  transmitting  them  to 
tlie  governor,  did  not  in  any  wise  interfere 
with  or  impair  the  title.  And  in  ejectment 
for  such  land  parol  evidence  is  admissible 
for  the  purpose  of  identifying  the  same  as 
in  fact  swamp  and  overflowed  land.  Clark- 
son  V.  Buchanan,  53  Mo.  563. — FOLLOWING 
Hannibal  &  St.  J.  R.  Co.  v.  Smith,  9  Wall. 
(U.  S.)  95.  Reviewing  Hannibal  &  St.  J. 
R.  Co.  V.  Smith,  41  Mo.  310.— Reviewed 
IN  Campbell  v.  Wortman,  58  Mo.  258. 

Actual  dispossession  of  the  covenantee, 
under  a  judgment,  is  not  necessary  to  ena- 
ble him  to  sue  on  his  covenant  of  warranty. 
But  in  all  cases  of  involuntary  disposses- 
sion the  burden  of  proof  is  on  him  to  es- 
tablish the  adverse  paramount  title  to  which 
he  has  yielded ;  and  it  should  appear  that 
the  possession  was  surrendered  only  after 
claim  or  demand  therefor.  Where  suit  on 
such  covenant  was  brought  against  the 
Hann.  &  St.  J.  R.  Co.,  and  it  appeared  that 
prior  and  subsequent  to  the  Act  of  Congress 
of  1850,  known  as  the  swamp-land  grant, 
the  land  was  partially  covered  with  water, 
and  plaintiff  had  voluntarily  surrendered  it 
to  the  county  of  Livingston,  but  there  was 
6  D.  R.  D,— 13. 


no  proof  to  show  that  it  was  c.cr  selected 
as  swamp  land  under  the  provisions  of  that 
act,  or  that  it  had  ever  been  conf'irmeii  or 
jiatented  to  the  stale,  plaintiff  could  no:  re- 
cover. And  such  would  be  the  case  even 
though,  under  the  Act  of  Congress  of  June 
10,  1S52,  the  land  was  in  fact  exempted 
from  the  grant  to  defendant,  It  would  not 
follow  therefrom  that  the  title  to  the  land 
was  necessarily  in  the  county.  Mor^fun  v. 
Hannibal  &^  HI.  J.  R.  Co.,  63  Mo.  129.  20 
/v.  A'y.  Rep.  444.  —  Distinguished  in 
ii.inmbal  &  St.  J,  R.  Co.  7'.  Snead,  65  Mo. 
239;  Conklin  v.  Hannibal  &  St.  J.  R,  Co., 
65  Mo.  533. 

Swamp  lands  were  excepted  from  the 
railroad  grant  made  by  the  Act  of  Congress 
of  1852  and  such  fact  may  be  set  up  as 
a  defense  in  a  suit  in  ejectment  by  one  who 
claims  under  the  railroad  grant.  Hannibal 
&*  St.  J.  R.  Co.  V.  Snead,  65  Mo,  239. — Dis- 
tinguishing Moigan  V.  Hannibal  &  St.  J. 
R.  Co.,  63  Mo.  129.  ~  Referred  to  in 
Palmer  v.  Boom,  80  Mo.  99. 

When  the  plaintiffs'  claim  to  the  land  in 
controversy,  in  ejectment,  is  founded  on 
the  swamp  land  grant  of  congress  of  Septem- 
ber 28,  1850,  he  cannot  recover  if  it  appears 
that  the  land  is,  in  point  of  fact,  high  and 
dry  rolling  prairie,  and  has  never  been  se- 
lected as  swamp  land  by  the  officers  of  the 
general  government,  notwithstanding  the 
defendant,  who  claims  under  the  railroad 
land  grant  of  congress  of  June  lo,  1852,  fails 
to  show  that  the  railroad  company  either  had 
built  its  road  into  the  county  where  the 
land  lay,  when  it  was  selected  by  the  com- 
pany, or  had  recorded  a  map  of  the  lands 
selected  in  the  proper  county  as  received  by 
the  act  of  the  state  legislature  of  Septem- 
ber 20,  1852.    Funkhotiser  v.    Peck,  67  Mo, 

'9- 

In  the  absence  of  evidence  that  the  sec- 
retary of  the  interior  has  neglected  or  re- 
fused to  decide  whether  a  tract  of  land  in 
controversy  in  an  action  of  ejectmetit  is 
swamp  or  overflowed  land  or  not,  within 
the  Act  of  Congress  of  September  28,  1850, 
the  defendant  will  not  be  permitted  to  show, 
by  parol  evidence,  that  it  falls  within  that 
act,  for  the  purpose  of  defeating  a  title  held 
under  the  railroad  land  grant  of  congress 
of  June  10,  1852.  Palmer  v.  Boorn,  80 
Mo.  99. — Following  Iowa  R.  Land  Co.  v. 
Antoine,  52  Iowa  429.  Referring  to 
Hannibal  &  St.  J.  R.  Co.  v.  Snead,  65  Mo. 
239.    Reviewing  Hannibal  &  St.  J.  R.  Co. 


I 

i 


''    .  r 


194 


LAND  GRANTS,     134-138.— LANDINGS. 


I!    ' 


7A  Smith,  41  Mo.  310;  Hannibal  &  St.  J.  R. 
Co.  V,  Sniith,  y  Wall.  (U.  S.)  95. 

VI.  CANADIAN  OBANTB. 

1 34.  SiiI»mUI.v  laiHlM-Lic'C'iise.— After 

a  railroad  lias  received  and  registered  a 
certificate  of  sulisidy  lands,  under  the  Real 
Properly  Act  of  1889,  ^64,  providini;  tliat 
sucli  registered  certificate  is  c(iiiclusive  evi- 
dence of  title  "  as  against  Her  Majesty  as 
represented  iiy  the  governnient  of  Mani- 
tol)a  and  all  persons  whomsoever,  "  the  reg- 
istration is  conclusive,  and  no  question  can 
be  made  of  the  right  of  the  coni[)any  to 
take,  hold  and  convey  the  latid.  /n  re  Cami- 
diixn  Pac.  K.  Co.,  6  Man.  598. 

The  Canadian  I'acific  R.  Co.  lias  power, 
without  taking  out  the  license  required  by 
tlie  statutes  of  this  province,  to  take,  liold, 
ac(iuire,  dispose  of,  sell,  or  contract  to  sell, 
or  grant  the  lands  situated  in  the  territory 
added  to  Manitoba  in  1881,  which  havj 
been  grantcfl  and  are  to  be  granted  to  the 
company  as  part  of  its  subsidy  for  the  con- 
siruciion  and  operation  of  its  railway,  under 
44  Vict.  c.  I.  (D..  1891).  49  Vict.  c.  II 
(M.  1886;,  and  53  Vict.  c.  23  (M.  1890), 
are  ultra  vires  in  so  far  as  they  require  a 
license  of  said  comi)any  in  order  to  take  and 
hold  lands.  Jn  re  Canadian  Pac.  R.  Co.,  7 
Man.  389. 

X'AT*.  Grunts  of  bcacli  aiiil  land  be- 
low lilfjh-water  mark.— In  1881,  by  let- 
ters patent  issued  pursuant  to  statute  of 
Canada,  49  Vict.  c.  i,  §  i8a,  and  having,  by 
section  2,  tlie  force  of  an  act  of  parlia- 
ment, ])laintifTs  were  granted  the  right  to 
"  take,  use.  and  hold  the  beach  and  land  be- 
low high-water  mark  in  any  *  *  *  navigable 
water,  gulf,  or  sea  *  *  *  to  such  extent  as 
shall  be  required  by  the  company  for  its 
railway  and  other  works,  as  shall  be  exhib- 
ited upon  a  map  or  plan  thereof  deposited 
in  the  ofhce  of  the  minister  of  railways. " 
Tlie  plaintiffs' light  to  occupy  the  foreshore, 
under  section  i8a,  supra,  was  exclusive. 
Canadian  Pac.  R.  Co.  v.  Vancouver,  2  Brit- 
ish Col.  306. 

VMS.  Enf'oreoniont  of  claim  under 
statiit*'— IVtItion  of  Hfjlit.— An  act  of 
the  legislature  of  Canada  having  provided 
that  a  railway  company  should  be  entitled 
to  4.000,000  acres  of  the  waste  lands  of 
the  crown  on  completion  of  its  road,  and 
a  proportionate  quantity  of  such  lands  on 
completion,  in  the  manner  specified,  of  20 


miles  of  the  line— //t'/</,  that  a  petition  of 
rigiit  presented  to  the  lieutenant-gover- 
nor of  Ontario,  addressed  to  her  Majesty 
the  yueen,  was  the  pnjper  proceeding  for 
the  purpose  of  enforcing  the  claim  ol  the 
railway  company,  under  the  act,  against 
that  |)rovince.  Canada  C.  R.  Co.  v.  Queen, 
20  Grant's  CIt.  ( U.  C.)  273. 

137.  imrtio!*. — Where  a  question 

afTecieil  the  right  of  the  government  to  the 
land  granted  in  a  patent,  the  attorncy-pen- 
eral  was  lield  to  be  a  necessary  party,  and 
leave  to  amend  was  granted  to  enable  him 
to  be  added  as  a  party,  although  the  defend- 
ant was  in  a  position  to  move,  and  made  a 
counter-motion,  to  dismiss,  but  the  defend- 
ant was  allowed  costs.  Lireat  Western  R. 
Co.  V.Jones,  2  Chan.  Chamb.  (U.  C.)  219. 

The  legislature  of  Canada,  by  an  act,  set 
apart  a  certain  quantity  of  land  along  the 
line  of  a  projected  railway,  to  be  granted 
to  the  company  on  completion  of  the  rail- 
way, and  a  proportionate  part  of  such  lands 
on  the  completion  of  20  miles  of  the  rail- 
way ;  the  company  having  completed  a  por- 
tion of  the  line  of  railway  to  an  extent  of 
more  than  20  miles,  applied  for  a  grant 
of  the  proportion  to  which,  under  the  act, 
it  churned  to  be  entitled,  which  was  re- 
fused. The  company  thereupon  presented 
a  petition  of  right  against  the  province 
of  Ontario.  It  was  alleged  that  the  prov- 
ince of  Ontario  had  not  along  the  line  of  the 
road  sufficient  lands  to  make  the  grant  de- 
si.-ed.  Held,  that  this  formed  no  ground 
for  the  province  of  Ontario  insisting  that 
the  province  of  Quebec  should  have  been 
made  a  party  to  tlie  proceeding.  Canada 
C.  R.  Co.  V.  Queen,  20  Grunt's  Ch.  (U.  C.) 

273- 

138.  Uii;lits  of  settlcr.s  and  prc- 
eniptloners.— 47  Vict.  c.  14  (B.C.),  throw- 
ing open  certain  land  conveyed  to  the  Esqui- 
mau &  N.  railway,  to  actual  settlers  for 
agricultural  purposes,  confers  no  right  of 
pre-emption  to  land  not  within  the  pre- 
emption laws  of  the  province,  and  only 
"  unreserved  and  unoccupied  lands  "  come 
within  those  laws.  Hogtran  v.  Esquinialt  &* 
N.  R.  Co.,  20  Can.  Sup.  Ct.  235. 


LANDINGS. 

Right  to  condemn  for  railway  purposes,  see 
Eminent  Domain,  125,  189. 
See  Wharves. 


Ill    I 


P'l      ••P<iwmf^.<,«j  n^li 


LANDLORD   AND   TENANT,  1-ff. 


195 


LANDLORB  AND  TENANT. 

Injuries  to  tenant  as  an  element  of  li.ud  dam- 
ages, see  Emink.nt  Ddmain,  70H. 

Respective  rights  of  action  of.  (or  flowing 
land,  see  Fi.ooDiNO  Lands,  04,  i\ti. 

to  sue  for  injuries  caused  by  fire,  sec 

FiRF.s,  155,   150. 

Rights  of  tenant  whose  term  expires  during 
pendency  of  condemnation  proceedings, 

see  EMINKNT  DOMAIN,    152. 

1.  Pn'siiiiiptioii  of  tliu  cxiMtitnvv  of 
the  rol«tloii<— A  railroad  company  built 
a  spur  track  across  plaintKT's  land,  paid  him 
rent  for  a  portion  of  the  time  the  land  was 
thns  occupied,  and  afterwards  continued  the 
occupation  with  his  assent,  until  his  whole 
road  (includin<{  said  spur  ti.K  k)  passed  into 
defeiidant's  hands  under  a  foreclosure  sale ; 
and  defendant  ontinued  the  occupation, 
without  any  notice  to  plaintiff  of  a  claim  to 
hold  adversely  to  him.  //M,  that  the  pre- 
sumption is  that  defendant  held  as  plaintiffs 
tenimt.      IVittinan  v.  Miluiaitkee,  /,.  ..V.  &^ 

ir.  A\  Co.,  SI  ir/s.  89. 8  A',  ir.  a\'/>.  6. 

2.  T4>riii illation   of  tliu    rolntioii. 

—Where  the  whole  of  leased  premises  are 
taken  by  a  railroad,  and  no  <lamages  arc 
assessed  to  the  tenant,  the  relation  of  land- 
lord and  tenant  is  ended,  and  the  latter  is 
not  liable  for  future  rent.  Dyer  v.  W/j^/i/- 
mmi,  66  Pa.  S/.  425. — Reconcimno  Frost 
V.  Earnest,  4  Whart.  (Pa.)  86;  Dobbins  v. 
Brown,  12  Pa.  St.  75.— Followed  in  Fitz- 
pairick  7/.  Pennsylvania  R.  Co.,  10  Phila. 
(Fa.)  141. 

The  tenant  of  a  tramway,  after  termina- 
tion of  the  tenancy,  cannot  dispute  his  land- 
lord's right  of  possession.  James  v.  Miles, 
54  Ark.  460,  16  i>.  W.  Rep,  195. — APPLY- 
ING Iron  Mountain  &  H.  R.  Co.  v,  ]Ji\x\- 
son,  119  U.  S.  608. 

•'t.  Ititflits  of  the  tciiiint,  g:ciierally. 
—The  tenant  is  the  owner  of  the  leased 
premises  during  the  term,  and  the  landlord 
can  confer  no  right  on  others  in  respect  to 
them  which  he  could  not  himself  exercise. 
Crmvdl  v.  Ne^u  Orleans  &*  N.  E.  R.  Co.,  20 
Am.  &"  Eii'^r^  /(>_  Qfg   206,  61   Aftss.  631. 

A  railroad  company  leased  a  pavilion 
situai';d  some  230  feet  from  a  road,  with  no 
way  of  getting  to  it  except  across  a  plat- 
form belonging  to  the  company.  The 
lessees  used  the  pavilion  for  selling  mineral 
waters,  confectionery,  etc.,  and  were  en- 
jomed  by  the  company  from  driving  across 
the  platform  to  and  from  the  pavilion.  The 
lessees  claimed  that   it   was   necessary   in 


their  business  to  drive  over  the  platform, 
and  tin;  evidence  tended  to  show  that  it 
was  so  cnnsiructed  as  not  to  be  liable  to  in- 
jury from  such  driving.  Held,  that  the 
lessees  could  not  be  enjoined  so  long  as 
they  1  roperly  used  the  platform.  A'e^i) 
Orleans  1  ily  R.  Co.  v.  AlcCloskey,  35  La, 
Ann.  78^ 

4.  —  to  recover  af;niiiMt  a  tren- 
paHSt'i*.  — A  railroad  comjjany  entering  and 
constructing  its  road-bed  upui  :-•  ised  prem- 
ises under  authority  from  the  lumllord  only, 
is  a  trespasser,  and  the  tenant  can  recover 
from  it  for  injuries  inflicti'd.  Crmuell  v. 
Xeiv  Orleans  <S~»  N.  E.  ■'.  Co.,  20  Ant,  '" 
Juij{.  R.  Cas.  306,  61   l/m.  631. 

Though  a  tenant  tacitly  pcrir.  ts  a  rail- 
road company  to  construct  iis  riad-bed  on 
the  leased  premises,  the  construction  by 
him  of  a  fence  across  the  work  ;  is  notice 
that  he  intends  to  protect  his  crop  in  that 
way,  and  the  destruction  of  the  fence  by 
the  company  will  render  it  liable  in  dam- 
ages for  injuries  resulting  therefrom.  Crow- 
ell  V.  Neiu  Orleans  &^  A'.  E.  R.  Co.,  20  Am. 
6-»  Eni^.  R.  Cas.  306,  61  Miss.  631. 

Crops  were  destroyed  by  the  negligence 
of  a  railroad  company  on  lands  that  were 
leased  for  that  and  the  following  year. 
Held,  that  both  the  owner  of  the  land  and 
the  tenant  could  maintain  a  joint  action 
against  the  company  for  the  loss  of  the 
crops,  ard  for  damage  to  the  land,  though 
by  the  tt.  ms  of  the  lease  the  rent  was  to  be 
paid  in  a  share  of  the  crops  when  matured. 
Texas  &»  P.  R.  Co.  v.  Gill,  2  Tex.  App. 
{Civ.  Cas.)  151. 

Where  it  appears  that  growing  crops  are 
destroyed  by  reason  of  a  railroad  company 
failing  to  maintain  proper  cattle-guards, 
proof  that  the  crops  were  on  rented  grounds, 
under  a  contract  by  which  the  tenant  was 
to  render  the  landowner  a  certain  share  of 
the  crops,  when  mature  and  harvested,  does 
not  give  the  landowner  an  inierest  in  the 
crops  such  as  would  make  him  a  necessary 
co-plaintiff  in  an  action  by  the  tenant.  St. 
Louis.  A.  &•  T.  R.  Co.  v.  Heard,  3  Tex. 
App.  (Civ.  Cas.)  470. 

5.  Loasu  and  its  assip^iiiiicnt. — 
Where  a  railway  company  arranges  by  pri- 
vate contract  the  price  of  the  interest  of  a 
defendant  in  land  it  requires,  a  covenant  in 
his  lease  not  to  assign  without  the  consent 
of  liis  landlord  is  abrogated  so  as  to  enable 
the  defendant  to  assign  to  the  company 
without  the  lessor's  consent.      Slipper  v. 


I 


]'  I:  f ' 


190 


LANDLORD    AND   TENANT,  «-«.— LANDOWNER. 


ill 


hi 


Tottenham  <5^  //.  /.  R.  Co.,  36  L.  /.  Ch. 
841.  L.  K.  4  Eq.  112. 

Wliere  a  lease  contains  a  proviso  empow- 
ering tlic  lessor  to  resume  any  portion  of 
the  land  whicli  might  be  required  for  the 
purpose  of  building,  etc.,  such  proviso  will 
not  enable  the  lessor  to  resume  a  portion  of 
the  land  for  the  purpose  of  conveying  it  to 
a  railway  company  discharged  from  the 
lease.  Johnson  v.  lutgware,  H.  &*  L.  R, 
Co.,  35  L./.  Ch.  322. 

ii.  Itviits,  geiicrnlly.— One  cannot  sue 
a  railroad  company  for  rent,  who  has  never 
consented  to  llieir  using  his  land,  and  has 
warned  tliem  that  they  went  upon  it  at  their 
peril  and  had  no  riglit  in  the  soil.  Afar- 
qtiette,  //.  «S^  O.  R.  Co.  v.  Harlow,  37  Mich. 
554.— Followed  in  Marquette,  H.  &  O.  R. 
Co.  V.  Harlow,  37  Midi.  557. 

A  street-car  company  leased  certain 
premises  for  the  purpose  of  storing  its  cars 
and  other  property,  with  a  side  track,  or 
turn  out,  for  the  purpose  of  running  its  cars 
to  and  from  the  building.  During  the  term 
the  street  in  front  of  the  premises,  by  au- 
thority of  the  city,  was  cut  down  so  as  to 
interfere  seriously  with  the  use  of  the 
premises  and  materially  reduce  their  value 
for  the  company's  use.  Held,  that  the 
damages  thus  sustained  could  not  be  set  up 
as  a  defense  to  an  action  to  recover  rent. 
Gallup  V.  Albany  R.  Co.,  7  Lans.  (N.  V.) 
471  ;  affirmed  in  65  N.  Y.  i. 

7.  Eviction  and  its  effect. — Where  a 
landlord  sells  a  part  of  leased  premises  to  a 
railroad  company,  if  the  company  enters  by 
permission  of  the  landlord,  it  amounts  to 
an  eviction  of  the  portion  sold,  although 
the  entry  by  the  company  is  unlawful  by 
reason  of  its  entering  without  the  assess- 
ment of  damages  to  the  tenant.  Halligan 
v.   Wade,  21  ///.  470. 

But  where  land  is  rented  with  the  under- 
standing that  it  may  be  sold  during  the 
icm  to  a  railroad  company,  the  laying 
down  of  a  track  on  the  land  does  not 
amount  to  an  eviction  so  as  to  release  the 
tenant  from  payment  of  rent.  Price  v. 
Pittsburg,  Ft.    W.  &»   C.   R.   Co.,   34  ///. 

'3- 

8.  Ground  rents.  —  The  owner  of  a 
ground  rent  is  not  affected  by  proceedings 
of  a  railroad  company  against  his  tenants, 
to  take  and  occupy  the  ground  for  the  pur- 
poses of  its  road,  the  landlord  and  tenant 
having  distinct  estates.  Voegtly  v.  Pitts- 
burgh Sr*  Ft.  W.  R.  Co.,  2  Grant's  Cas.  (Pa.) 


243.— Distinguished  in  Philadelphia,  \V. 
&  B.  R.  Co.  V.  Williams,  54  Pa.  St.  103. 

The  principal  of  a  ground  rent  is  not  a 
debt  within  the  meaning  of  the  Act  of  Con- 
gress of  Feb.  25,  1862.  Philadelphia  &» 
R.  R.  Co.  V.  Morrison,  5  Phila.  (Pa.)  515. 


LANDOWNER. 

Assumption  by,  of  risk  from  fire,  see  Firks, 
20. 

At  time  of  taking,  solely  entitled  to  damages, 
see  Eminent  Domain,  4120. 

Burden  of  proof  to  show  inability  to  agree 
with,  see  Eminent  Domain,  307,  474. 

Changing  route  under  provisions  in  contract 
with,  see  Location  of  Routk,  lO. 

Compensation  to,  on  abandonment,  see  Aban- 
donment, 10. 

Constructir  n  and  repair  of  cattle-guards,  and 
farm  crossings  by,  see  Caitle-guakus, 
20 ;  Farm  Crossings,  5. 

Contract  between  company  and,  relative  to 
fences,  see  Animals,  Injuries  to,  88, 
1 3«) ;  Fences,  38. 

Cultivation  by,  of  part  of  strip  not  used  by 
company,  see  Eminent  Domain,  147. 

Declarations  of,  as  to  value  of  property,  ad- 
missibility of,  see  Evidence,  210. 

Defense  by  company  to  condemnation  pro- 
ceedings instituted  by,  see  Eminent  Do- 
main, 340. 

Duty  of,  to  repair  fences,  see  Fences,  O  1 . 

Effort  to  agree  with,  prior  to  condemnation, 
seeEMiNENT  Domain,  274-280;  Streets 
AND  Highways,  128. 

Ejectment  by,  see  Ejectment  ;  Eminent  Do- 
main. 1010-1031. 

Election  of  remedies  by,  see  Eminent  Do- 
main, 083. 

Furnishing  plan  to,  in  condemnation  pro- 
ceedings, see  Eminent  Domain,  340. 

Indemnity  to,  in  lieu  of  granting  injunction, 
see  Indemnity  Bonds,  7. 

Laches  of,  when  bars  remedy  against  com- 
pany, see  Eminent  Domain,  987. 

May  waive  prepayment  of  land  damages,  see 
Eminent  Domain,  410. 

Necessity  of  compensation  to,  for  land  con- 
demned, see  Eminent  Domain,  371- 
423. 

Notice  to,  of  condemnation  proceedings,  see 
Eminent  Domain,  281-300. 

Release  of  damages  by,  see  Release,  28- 
30. 

Reservation  of  easements  to,  see  Eminent 
Domain,  221,  483. 

Respective  rights  of  company  and,  in  prop- 
erty condemned,  see  Eminent  Domain, 
133-152. 


LARCENY— LEASES,  ETC. 


197 


Reversion  of  land  to,  on   abandonment  of 

route,  see  Eminent  Domain,  080,  081. 
Right  of  action  of,  for  failure  to  build  and 

maintain  fences,  see  Fknces,  02-04. 
to  appeal  in  condemnation  proceedings, 

see  E.MiNKM'  Domain,  87  1. 
costs  in  condemnation  suits,  see  Emi- 

M-.NT  Domain.  700-770. 
jury  trial  of   question  of  damages, 

see  E.MINKM'  Domain,  520. 
money  paid  into  court,  see  Eminent 

Domain,  iiltr*,  402. 
recover  cost  of  fence  from  company, 

see  Fkncks,  44r,  45. 
work   mines,    see   Mines,    etc.,  3- 

K. 
Strict  construction  of  condemnation  laws  in 

favor  of,  see  Eminent  Domain,  47. 
Taking  !and  by  consent  of,  see  Eminent  Do- 
main. 101-2.32. 
Trespass  by,  for  wrongful  interference  with 

property,  see  Eminent  Domain,  1055- 

I0H5. 
Waiver  by,  of  prepayment  of  damages,  see 

EMiNKNr  Domain,  1022. 
statutory  duty  to  fence,  see  Fences, 

When  has  right  to  open  and  close  in  assess- 
ment of  damages,  see  Eminent  Domain, 
574. 

—  may  initiate  condemnation   proceedings, 

see  Eminent  Domain,  254 ;  Streets  and 
Highways,  lOO. 

—  sustains  the  burden  of  proof  in  condemna- 

tion proceedings,   see  Eminent  Domain, 

•sua,  3<io. 

See  also  Abutting  Owners;  Owners. 


LARCENT. 

Pi'osecutions  for,  see  Criminal  Law,  27« 


LATENT  DEFECTS. 

Assumption  of  risk  as  to,  se^  Employes,  Tn- 

juKiEs  to,  210-222. 
Burden  of  proof  as  to,  see  Employes,  Inju- 

Rii:s  ro,  GOO. 
Duty  of  company  to  know  and  to  instruct 

employe  as  to,  see  Employes,  Injuries  to, 

.i  1,142. 
Liability  of  carrier  of  passengers  as  to,  see 

Carriage  OF  Passengers,  195. 


LATERAL  ROADS. 

Control  over,  see  Baltimore  &  Ohio  R.  R., 
5. 

Sec  RUANCII  AND  LATERAL  RoADS. 


LATERAL  SUPPORT. 

Of  adjacent  .lands,  duty  to  afford,  see  Con- 
siRiicnoN  OF  Railways,  5. 

Removal  of,  when  constitutes  a  taking  of 
land,  see  Eminent  Domain,  155. 

Right  of  landowner  to,  see  Mines,  etc.,0; 
Right  of  Way,  lO. 

Taking  away  by  excavations,  see  Excava- 
tions, 4. 


LAW  AND  FACT. 

See  Questions  of  Law  and  Fact. 


LAW  BOOKS. 
Reading  from,  to  the  jury,  see  Trial,  93. 


LAW  OF  PLACE. 

As  to  actions  for  causing  death,  see  Death 
BY  Wrongful  Act,  105-124. 

age  of  responsibility  of  child,  see  Chil- 
dren, Injuries  to.  71. 

construction  and  validity  of  contracts, 

see  Bills  of  Lading,  30;  Carriage  of 
Merchandise,  403,  404;  Contracts, 
85-89. 

exemptions  from  attachment,  see  At- 
tachment, etc.,  35-39. 

liability  for  baggage,  see  Baggage,  7, 

lOl. 

rate  of  interest,  see  Interest,  1 8. 

stipulations  limiting  liability,  see  Limi- 
tations of  Liability,  37. 

usury,  see  Usury,  3. 

validity  of  deeds,  see  Deeds.  60. 

Interpretation  of  mortgages  as  affected  by, 
see  Mortgages,  84. 


LAW  OF  THE  ROAD. 

Not  applicable   to    street-cars,  see   Street 
Railways,  236. 


LEADING  QUESTIONS. 

To     "witnesses,    see     Elevated    Railways, 
114;  Witnesses,  51. 


LEASES;  RUNNING  POWERS;  WORK- 
ING AGREEMENTS. 

In  general,  see  Landlord  and  Tenant,  5. 

As  evidence  of  rental  value,  see  Elevated 
Railways,  105. 

By  mortgagor,  ratification  of,  by  trustees, 
see  Mortgages,  144. 

Cancellation  of,  see  Equity,  14." 

Condemnation  of  leased  property,  see  Emi- 
nent Domain,  97. 


i 
I 


'i^^B,: 


{>- 


id8 


LEASES,  ETC.,  1. 


r 


Damages  for  depreciation  of  rental    value 

during  time  covered  by,  see   Elevated 

Railways,  151. 
Evidence  of  value  of  leasehold  property  on 

assessment   of  land  damages,  see  Emi« 

NENT  Domain,  008. 
Exemption  of  leased  land  from  taxation,  see 

Taxation,  ltt5. 
Inspection  of  leased  track,  see  Carriage  of 

Passengers,  107. 
Liability  of  lessor  company  for  failure   to 

fence,  see  Fences,  17,95. 
Liability  of  parties  for  injuries  to  employes, 

see  Emi'i.oyes,  Injuries  to,  485. 
Mining  leases,  see  Mines,  etc.,  lO. 
Of  cars,   see   Car  Trust   Associations,  2 ; 

Sleeping,  etc.,  Co.mi'Anies,  2,  3. 

—  ferry  franchise,  see  Ferries,  4. 

—  road,  consent  of  stockholders  to  accept- 

ance of,  see  Directors,  etc.,  58. 
when  releases  subscriber  to  stock,  see 

Subscriptions  TO  Stock,  130. 
when  revokes  free  passes,  see  Passes, 

7. 

—  rolling  stock,  relative  rights  of  lessor  and 

mortgagee,  see  Mortgages,  50-00. 

—  wharf  property,  see  Wharves  and  Piers, 

2. 
Parties  to,  when  entitled  to  land  damages, 

see  Eminent  Domain,  4!33. 
Power  of  lessor  and  lessee  corporations  to 

condemn  land,  see  Eminent  Domain,  78, 

70. 
receiver  to  take  or  make,  see   Mort- 

GACEs,  224  ;  Receivers,  54. 
Rentals  of  lea.sed  toads,  see  Eastern  R.  Co., 

:i. 

Respective  liabilities  of  the  parties  to,  for  in- 
juries caused  by  fire,  see  Fires,  150, 
UW. 

Right  of  parties  to,  to  sue  elevated  railway 
company,  see  Elevated  Railways,  91- 
95. 

Servants  of  lessor  not  fellow- servants  with 
those  of  lessee,  see  Fellow-servants, 
127. 

Setting  aside,  see  Equity,  23. 

Taxation  of  lessor  and  lessee  roads,  see  Tax- 
ation, 08. 

When  create  estoppels,  see  Estoppel,  10. 

When  extinguish  exemption  from  taxation, 
see  Taxation,  152. 

L  LEASES 198 

1.  Construction  0/ Leases 198 

2.  Poiver  to  Make  or  Take  Leases  203 

3.  Rights  and  Liabilities  of  Les- 

sors    218 

4.  Rights  and  Liabilities  of  Les- 

sees   223 


a.  Generally 223 

b.  Liability  to  Third  Per- 

sons  226 

c.  Liability  to  the  Lessor.  2r8 

d.  Ratification  and   Part 

Performance 232 

e.  Assigning  and  Sublet- 

ting   233 

5.  Joint  Liability  of  Lessor  and 

Lessee 235 

6.  Leasing  Mortgaged  Roads 236 

7.  Procedure 238 

n.  BTJNNINO  POWERS 242 

1.  Under  American  Authorities,.  242 

2.  Under  English  Statutes 245 

III.  WOBKINO  AGBEEMENTS 249 

I.  LEASES. 
I.  Construction  of  Leases, 

1.  Generally. — An  instrument  convey- 
ing an  estate  in  land,  subordinate  to  that  of 
the  grantor,  to  a  grantee,  upon  a  valid  con- 
sideration, and  for  a  definifi  term,  is  a 
lease,  and  not  a  license,  as  a  license  grants 
no  estate  in  land.  New  York,  C.  &*  St.  L. 
R.  Co.  V.  Randall,  102  Ind.  453,  26  A'.  E. 
Rep.  122. 

A  grant  and  demise  by  one  railway  cer- 
poration  of  all  its  property,  real  and  per- 
sonal, witii  all  its  privileges  and  franchises, 
to  another,  in  perpetuity,  is  equivalent  to  an 
absolute  conveyance.  Chicago,  B.  (S«»  Q.  R. 
Co.  V.  Boyd,  !  18  ///.  73,  7  A'.  E.  Rep.  487. 

Where  a  railroad  company  leases  a  part 
of  its  track,  the  reserved  rent  therefor  is 
appurtenant  to  the  land  and  the  track 
thereon,  and  passes  to  a  consolidated  com- 
pany acquiring  possession  of  the  road. 
Neiv  York  C.  R.  Co.  v.  Saratoga  <S»  S.  R. 
Co.,  39  Barb.  {N.   Y.)  289. 

A  lessor  railroad  company  does  not  cease 
to  be  a  corporation  because  the  lessee  com- 
pany, under  N.  Y.  Act  of  1879,  ch.  503.  takes 
a  transfer  of  all  the  stock  of  the  lessor 
company  and  issues  its  own  stock  in  lieu 
thereof;  and  condemnation  proceedings  in- 
stituted by  the  lessor  company  before  such 
transfer,  do  not  abate.  /«  re  Metropolitan 
El.  R.  Co.,  1 2  A',  I'.  Supp.  506 ;  affirmed  in 
43  N.  Y.  S.  R.  651,  17  A^.  Y.  Supp.  778,  63 
Nun  629,  mem. 

In  construing  a  written  lease  of  a  railroad 
in  which  the  parties  claim  the  words  and 
expressions  contain  their  true  intent  and 
meaning,  and  there  is  no  claim  of  fraud  or 
mistake,  there  should    be    given   to  each 


LEASES,  ETC.,  2,  3. 


199 


word  and  expression  that  plain  and  obvious 
nu;aning  which  the  context  and  the  whole 
instrument  require  to  make  each  part  con- 
sistent with  the  whole,  and  which  will  se- 
cure and  carry  into  effect  the  object  of  the 
parties.  Cincinnati,  S.  &^  C.  Ji.  Co.  v.  /«- 
iliana,  B.  &>  IV.  K.  Co.,  26  Am.  <S-  E>^.  A'. 
Cits.  615,  44  0/tio  Si.  287,  7  JV.  E.  Rep.  139. 

Wlien  a  written  lease  of  a  railroad  con- 
sists of  more  tlian  one  distinct  writing  or 
contract,  the  different  provisions  of  all  the 
pans  should  be  given  due  weight  in  ascer- 
taining the  intended  meaning  of  any  por- 
tion of  the  same;  but  if  the  language- is 
clear  and  distinct,  and  the  plain  and  obvi- 
ous meaning  of  the  words  is  consistent 
with  the  whole  instrument,  such  meaning 
must  be  taken  as  the  intended  meaning  of 
the  parties,  unless  other  parts  of  the  agree- 
ment not  only  admit  of,  but  require,  a  dif- 
ferent construction.  Cincinnati,  S.  <S»  C.  R. 
Co.  V.  Indiana,  B.  &•  IV.  R.  Co.,  26  Am.  Sf 
Eng.  R.  Cas.  615,  44  Ohio  St.  287,  7  ^V.  E. 
Rep.  139. 

"£.  Power.s  and  duties  of  luHsur  and 
lessee  as  between  each  other. — When 
two  railroads  are  united  under  a  lease 
specifying  the  duties  and  liabilities  of  each, 
neither  is  restricted  in  any  particular  not 
included  in  their  contract  with  each  other; 
each  may  obtain  new  legislative  grants,  and 
iivail  itself  of  additional  powers,  in  any  way 
they  may  find  advantageous  to  themselves, 
provided  these  new  operations  are  kept  so* 
distinct  as  not  to  interfere  with  the  due 
operation  of  their  agreement  with  each 
other.  March  v.  Eastern  R.  Co.,  43  N.  H. 
515. 

Such  lease  between  the  roads  must  be 
construed  with  reference  to  the  objects  pro- 
posed by  the  existing  charters  of  each  at 
the  time  the  lease  was  made,  and  its  con- 
struction or  operation  cannot  be  affected 
by  any  change  of  the  plans  or  objects  of 
the  corporation,  beyond  the  existing  scope 
of  their  chartered  powers  at  the  time  of  the 
making  of  such  lease.  March  v.  Eastern 
R.  Co.,  43  A'.  H.  515. 

Such  roads  may,  as  between  themselves, 
vary  the  terms  of  their  contract  with  each 
other,  and  may  consent  to  a  different  ap- 
propriation of  the  funds,  profits,  or  divi- 
dends from  that  provided  for  in  the  original 
contract;  but  stockholders  in  either  rosid 
who  have  not  thus  absented  may,  in  equity, 
hold  both  corporations  to  perform  ,.lieir 
origitial  contract,  and  apply  their  funds  and 


profits  in  the  way  originally  provided  for, 
so  far  as  relates  to  themselves.  March  v. 
Eastern  R.  Co.,  43  A^.  H.  515.— Quoted  in 
Goodwin  v.  Hardy,  57  Me.  143. 

Defendant  elevated  railroad  company 
leased  two  other  roads  to  hold  for  a  term 
of  nine  hundred  and  ninety-nine  years,  "or 
so  long  as  it  shall  continue  to  exist  as  a 
corporation  and  be  capable  of  exercising  all 
the  functions  herein  stipulated  on  its  be- 
half." Subsequently  an  action  was  com- 
menced on  behalf  of  the  people  against  the 
lessee  company  to  dissolve  it  for  insol- 
vency, and  receivers  pendente  lite  were  ap- 
pointed ;  whereupon  one  of  the  lessor  com- 
panies applied  for  a  surrender  of  its  prop- 
erty. Held,  that  the  appointment  of  the 
receivers  did  not  terminate  the  lease.  The 
provision  that  the  lease  should  continue  so 
long  as  the  lessee  "  be  capable  of  exercising 
its  functions,"  would  only  terminate  the 
lease  when  the  company  became  legally 
disabled  from  fulfilling  its  contracts,  and 
mere  inability  to  perform  would  not  have 
that  effect.  New  York  El.  R.  Co.  v.  Man- 
hattan Ji.  Co.,  63  Ho^M.  Pr.  i,N.  Y.)  14. 

The  above  lease  contained  a  provision 
that  the  lessor  companies  might  assume 
possession  of  their  property  if  any  payment 
was  in  arrears  for  ninety  days.  Held,  as  the 
court  had  taken  possession  of  the  property 
during  the  litigation,  it  could  not  surrender 
it  on  the  ground  of  insolvency  before  entry 
of  final  judgment.  New  York  El.  R.  Co.  v. 
Manhattan  R.  Co.,  63  Hmu.  Pr.  (yV.  ]'.)  14. 

In  such  case  the  court  could  not  settle 
conflicting  claims  as  to  the  ownership  of 
the  property  until  after  it  '".ntered  a  judg- 
ment of  fo.  feiture  and  took  possession  of 
the  property  for  final  distribution.  A^ew 
York  El.  R.  Co.  v.  Manhattan  R.  Co.,  63 
Hm>.  Pr.  (A'.  K)  14. 

;j.  Ijease  with  power  of  piiri'hase.* 
— A  lessee  of  land  who  has  an  option  to 
purcha.se  the  demised  premises  has  an 
equitable  estate  in  the  land,  and  when  he 
exercises  his  option  he  is  to  be  considered 
as  the  owner  al>  initio.  People's  St.  R.  Co.  v. 
Spencer,  156  Pa.  St.  85,  27  All.  Rep.  113. 

Plaintiff  leased  rolling  stock  to  a  railroad 
company,  under  an  agreement  for  a  sale, 
with  a  proviso  that  if  the  company  should 
not  be  able  to  purchase  it  should  return 
the  property,  and  that  all   freights  earned 

*  Conditional  sale  or  lease  of  rolling  stock, 
see  note,  57  Am.  &  Eno.  R.  Cas.  239.  See  also 
Mortgages,  47-00> 


S?^i 


.  M"*  J 


iJMi 


200 


LEASES,  ETC.,  3. 


on  business  of  plaintiff  should  be  retained 
and  credited  on  the  rentals  and  purchase 
price.  A  receiver  was  appointed  for  the 
railroad  who  used  tiie  rolling  stock  in 
operating  the  road.  On  intervening  peti- 
tion by  plaintiff  to  be  paid  the  balance  of 
the  price,  and  cross-petition  by  the  receiver 
to  recover  the  excess  of  freight's  retained 
by  plaintiffs  above  the  agreed  rentals — held, 
that  the  receiver  might  return  the  property, 
and  notwithstanding  the  dismissal  of  plain- 
tiff's intervening  petition  recover  on  his 
cross-petition  the  excess  of  freights  re- 
tained by  plaintiff  above  the  rentals  less 
tlie  amount  of  any  damages  sustained  by 
the  property.  Sunflower  Oil  Co.  v.  Wilson, 
48  Am.  S^  Eiig.  R.  Cas.  664.  142  U.  S.  313, 
12  Su/>.  0.  Rep.  235.— Distinguishing 
Galveston,  H.  &  H.  R.  Co.  v.  Cowdrey,  11 
Wall.  (U.  S.)  459;  American  Bridge  Co.  v. 
Heidelbach,  94  U.  S,  798;  Oilman  z/.  Illinois 
&  M.  Tel.  Co.,  91  U.  S.  603. 

By  the  lease  and  subsequent  purchase  of 
the  road  and  its  franchises,  the  present  com- 
pany, known  as  the  Macon  &  Brunswick 
R.  Co.,  acquired  the  right  to  extend  and 
construct  the  road  from  Macon  to  Atlanta, 
subject  to  the  limitations  in  the  original 
and  amended  charters  of  the  company,  sub- 
sequent legislation  thereon,  and  the  consti- 
tutional guaranty  to  the  owners  of  property 
not  to  force  them  to  part  with  any  portion 
of  it  without  just  compensation.  Wood  v. 
Macon  6-  B.  R.  Co.,  68  Ga.  539. 

S.  and  the  F.,  N.  S.  &  C.  R.  R.  Co.  entered 
into  a  contract  by  which  S.  leased  a  railroad 
owned  by  him  to  the  company  for  a  term  of 
fifty  years  at  an  annual  rental  of  a  specified 
percentage  upon  the  agreed  cost  of  the  road. 
The  contract  contained  the  ordinary  cove- 
nant for  the  surrender  of  the  demised 
premises  at  the  end  of  the  term,  subject, 
however,  to  certain  other  provisions,  in  sub- 
stance as  follows  :  The  lessee  covenanted  at 
the  end  of  the  term  to  pay  to  the  lessor  the 
principal  sum  expended  by  him  upon  the 
road,  rent  to  continue  until  such  payment, 
and  then  to  cease.  Upon  such  payment 
beint;  made  it  was  stipiilated  that  the  com- 
pany should  be  vested  with  the  fee  of  the 
road  and  appurtenances,  and  that  the  con- 
tract should  thereupon  be  deemed  a  suffi- 
cient grant.  The  contract  contained  the 
usual  provisions  for  re-entry  for  non-pay- 
ment of  rent  or  breach  of  other  covenants 
bv  the  lessee.  The  said  company  assigned 
the  contract  to  another  railroad   corpora- 


tion, which  leased  to  the  defendant  all  the 
property  covered  by  the  contract  for  the 
term  of  ninety-nine  years,  at  a  different  rent 
from  that  reserved  in  the  original  lease,  and 
with  a  provision  for  re-entry  and  a  cove- 
nant to  surrender  at  the  end  of  tlie  term. 
In  an  action  by  the  devisee  of  S.  to  recover 
rent— //(/(/  (Finch,  J.,  dissenting),  that  the 
lease  to  defendant  operated,  as  between  it 
and  S.  or  his  devisee,  as  an  assignment  of 
the  entire  term  fixed  by  the  original  con- 
tract, and  thus  established  a  privity  of  es- 
tate between  S.  and  defendant,  which  ren- 
dered the  latter  liable;  that  the  agreement 
to  transfer  the  fee  did  not  merge  the  fifty 
years'  term  or  prevent  the  relation  of  land- 
lord and  tenant  subsisting  during  its  con- 
tinuance, as  by  the  terms  of  said  agreement 
the  payment  of  the  purchase  price  at  the 
end  of  that  term  is  made  a  condition  prece- 
dent to  the  vesting  of  the  fee  in  the  lessee, 
and  so  the  contract  was  not  a  present  sale 
of  the  fee,  but  simply  for  a  sale  to  take  place 
infuturo.  Stewart  v.  Long  Island  R.  Co., 
102  N.  y.  601,  8  A'.  E.  Rep.  200.  2  A^.  Y.  S. 
A'.  557;  reversing  ^2  Nun  68. 

Plaintiff  leased  its  railroad,  the  land  upon 
which  the  same  was  built,  and  the  property 
generally  as  it  was  at  the  date  of  the  lease 
to  defendant  with  the  right  of  purchase 
upon  payment  of  the  cost  thereof  and  all 
rent  accruing  to  the  time  of  purchase ;  and 
upon  such  payment  said  demised  premises 
were  to  be  conveyed  free  from  incumbrance. 
Defendant  tendered  the  costs,  with  rent  to 
time  of  tender,  but  demanded  that  plaintiff 
convey  a  perfect  title,  or  convey  with  cove- 
nant of  .varranty  of  title,  and  it  was  held 
that  he  demanded  more  than  his  contract 
permitted,  and  his  tender  was  no  bar  to  a 
claim  for  rent  and  did  not  prevent  its  accru- 
ing in  the  future ;  and  that  plaintiff  not 
having  demanded,  but  on  the  contrary  hav- 
ing resisted,  a  specific  performance  in  the 
manner  claimed  by  defendant,  and  defend- 
ant having  sought  to  compel  him  to  com- 
plete his  title  at  an  additional  expense,  by 
the  tender  of  the  costs,  only  of  the  demised 
premises,  as  they  existed  at  the  date  of  the 
lease,  neither  party  was  in  a  condition  to 
demand  a  specific  performance  in  respect  to 
a  conveyance  of  the  premises.  Hicks7>ille 
&*  C.  S.  B.  R.  Co.  V.  Lo>^  Island  R.  ttf.,48 
Barb.  (N.  F.)  355. 

A  railroad  company  contracted  with  a 
bank  to  furnish  funds  to  purchase  locomo- 
tives, cars,  etc.,  for  the  road.  The  bank,  by  the 


TT'^^ffW^Pflilf' 


LEASLh,  ETC.,  4,  6. 


201 


contract,  acquired  the  absolute  title  to  the 
articles,  and  agreed  to  lease  the  same  back 
to  tiie  company  for  three  years  at  a  weekly 
rental  of  §1000,  with  the  provisos  (i)  that 
the  company  mijjht  at  any  time  during  the 
term  pay  $105,500  and  put  an  end  to  the 
contract ;  (2)  that  the  contract  should  ter- 
minate when  said  weekly  payments  of  rent 
should  amount  to  $105,500.  Held,  that  the 
absolute  title  to  the  property  vested  in  the 
bank  when  purchased,  and  tliat  the  contract 
amounted  to  a  lease  to  the  company,  and 
not  a  sale  and  mortgage  back.  Bank  of 
Upper  Canada  v.  Qrand  Trunk  R.  Co.,  13 
U.  C.  C.  P.  304. 

4.  Lease  of  street  railway  with 
power  to  extend  it.* — Plaintiff  was 
the  owner  of  a  street  railroad  in  the  city 
of  13,,  and  also  the  franchise  and  right 
to  extend  the  road  upon  other  streets, 
upon  ubiainingconsent  of  the  local  authori- 
ties and  property  owners.  On  April  i,  1886, 
the  parties  entered  into  a  contract  by  which, 
"  in  consideration  of  the  mutual  covenants 
and  agreements"  therein  contained,  plaintifl 
leased  to  the  defendantsthe  right  to  use  the 
existing  road  and  the  right  to  construct  and 
operate  the  extension ;  it  agreed  to  obtain 
the  necessary  consents,  and,  in  case  it 
should  fail  to  do  so  within  sixty  days  and 
should  give  notice  to  that  effect  to  defend- 
ants, it  was  provided  that  at  the  option  of 
the  hitter  the  lease  and  agreement  should 
cease  or  continue  operative.  Defendants 
agreed  to  have  a  specified  portion  of  the 
extension  completed  on  or  before  Novem- 
ber 15,  1 88 1,  and  the  residue  at  times  speci- 
fied, unless  delayed  by  legal  proceedings ; 
and  to  pay  as  rental  a  percentage  on  the 
gross  receipts,  commencing  October  i,  i860, 
they  stipulating  that  the  annual  rental 
should  not  be  less  than  $15,000.  Defend- 
ants took  possession  of  the  completed  road ; 
plaintill  did  not  procure  the  requisite  con- 
sents until  in  October,  1886,  when  defend- 
ants began  the  construction  of  the  exten- 
sion, but  were  restrained  by  order  of  the 
court,  on  the  ground  that  the  consent  of 
another  street  railroad  to  laying  the  road  on 
one  of  the  streets,  which  was  an  important 
part  of  the  extension,  had  not  been  obtained. 
This  consent  was  never  obtained,  and  a 
company  to  whom  defendants  had  assigned 


*  Lease  of  street  railway  and  franchise  for 
extension  of  the  road.  Liability  for  rent,  see  52 
Am.  &  Eng.  R.  Cas,  81,  adttr. 


the  lease  gave  plaintiff  notice  that  it  elected 
to  hold  the  contract  broken  because  of  non- 
performance, and  that  it  was  ready  to  sur- 
render the  property  on  being  reimbursed 
for  the  expenditures.  In  an  action  to  re- 
cover the  guaranteed  rental — /le/d,  that  the 
lease  was  inoperative  as  a  present  demise  of 
the  extension  not  then  built  and  could  not 
be  effective  with  respect  to  the  right  to 
create  such  property  until  plaintiff  procured 
the  requisite  consents ;  that  the  guaranty, 
therefore,  was  dependent  upon  the  perform- 
ance of  the  conditions  precedent  which  were 
necessary  to  enable  defendants  to  complete 
the  extension,  and  so  it  never  became  op- 
erative. Atlantic  Ave.  K.  Co.  v.  Johnson, 
134  N.  V.  375.  3 «  ^-  E.  Rep.  903,  47  A'.  Y. 
S.  R.  535  ;  affirming  57  Hun  591,  mem.,  32 
N.  Y.  S.  R.  1052,  II  A^.   Y.  Supp.  106. 

//  seems  that  if  the  fixed  amount  of  rent 
had  been  guaranteed  from  the  beginning  of 
the  term,  defendants  could  not  have  de- 
fended, but  their  remedy  would  have  been 
to  counter-claim  damages.  Atlantic  Ave. 
R.  Co.  V.  Johnson,  134  A^.  Y.  375,  31  N.  E. 
Rep.  903,  47  A^.  Y.  S.  R.  535 ;  affirming  57 
Hun  591,  32  A^.  Y.  S.  R.  1052,  11  A^.  Y. 
Supp.  106. 

The  company  which  procured  the  injunc- 
tion restraining  the  construction  of  the  ex- 
tension was,  after  the  trial  of  this  action, 
adjudged  to  have  forfeited  its  charter. 
Plaintiff  claimed,  on  appeal,  that  said  com- 
pany was  a  wrong-doer  in  opposing  the  ex- 
tension, and  so  that  its  covenant  did  not 
require  it  to  overcome  such  resistance. 
Held,  untenable  ;  that  the  court  could  not 
go  outside  the  record  to  reverse  the  judg- 
ment ;  also  that  until  the  judgment  of  for- 
feiture was  obtained  said  company  had  the 
right  to  oppose  the  extension.  Atlantic 
Ave.  R.  Co.  V.Johnson,  134  A^.  Y.  375,  31  N. 
E.  Rep.  903,  47  A^.  Y.  S,  R.  535  ;  affirm ittg 
57  Hun  591,  32  N.  Y.  S.  R.  1052,  11  A'.  Y. 
Supp.  106. 

5.  When  lease  will  not  prevent  a 
forfeiture  of  charter.— Where  a  com- 
pany organized  under  the  general  railroad 
act  leases  a  portion  of  its  route  to  another 
company,  with  a  right  to  lay  down  tracks  to 
enable  the  lessee  to  complete  its  own  road, 
the  tracks  when  built  not  to  belong  to  the 
lessor,  or  to  be  operated  by  it,  this  is  not 
such  a  user  by  f'.e  lessor  of  its  franchises  as 
to  prevent  a  forfeiture,  under  N.  Y,  Act  of 
1867,  ch.  775.  In  re  Brooklyn,  W.  &*  N.  R. 
Co.,  81  A'^.   Y.  69;   affirming  19  Hun  314.-- 


,ii^i" 


«    « 


202 


LEASES,  ETC.,  O-ll. 


1  I 


Referring  to  In  re  Brooklyn,  W.  &  N.  R. 
Co.,  72  N.  Y.  245,  75  N.  Y.  335;  Brooklyn 
Steam  Transit  Co.  v.  Brooklyn,  78  N.  Y. 
524. 

Such  a  corporation  cannot  retain  its  cor- 
porate existence  without  the  expenditure  so 
required,  by  granting  to  another  company 
the  privilege  of  laying  tracks  over  such 
parts  of  its  route  as  the  other  company  may 
desire  to  use.  In  re  Brooklyn,  IV.  &•  N.  Ji. 
Co.,  81  N.  V.  69;  affirming  19  Hun  314. 

A  reservation  in  such  lease  of  a  right  to 
the  lessor  to  run  cars  over  a  portion  of  the 
tracks  laid  by  the  lessee  on  paymetit  of  a 
specified  sum  for  the  use  of  the  track  does 
not  avail  to  give  the  lessor  the  benefit  of 
the  expenditures  by  the  lessee.  In  re  Brook- 
lyn, W.  <3-  N.  It  Co.,  81  N.  F.  69;  affirm- 
ing 19  //««  314. 

O.  When  lea.se  will  not  prevent 
inuiKlaiiiiis  to  compel  operation  of 
road. — The  fact  that  the  specific  portion 
of  the  railway  in  question  had  been  leased 
by  the  defendant  to  another  railway  com- 
pany, and  was  being  operated  in  connection 
with  the  line  of  the  latter,  but  not  in  con- 
formity to  a  decree  of  the  court— /iel<i,  to  be 
no  defense  to  the  issuance  of  a  writ  of  man- 
damus to  compel  the  operation  of  the  road. 
Slale  V.  Iowa  C,  li.  Co.,  83  Iowa  720,  50  N. 
IV.  Hep.  280. 

7.  What  a  lease  of  "  terminal  fa- 
cilities" iucludcs.— "Terminal  facili- 
ties," as  understood  by  those  operating  rail- 
roads, only  include  tracks  used  in  making  up 
trains.  So  a  lease  by  one  company  to 
another  of  such  facilities  will  not  include  a 
track  used  only  for  reaching  car  works. 
Jacksonville,  L.  <3-  St.  L.  R.  Co.  v.  Louis- 
ville &^ N.  A\  Co.,  47  ///.  App.  414. 

8.  Contracts  not  amounting  to 
leases. — A  vote  by  a  railroad  company  to 
agree  with  another  company  to  take  a  lease 
of  a  road  to  be  constructed  by  the  latter,  and 
to  pay  as  rent  a  certain  per  cent,  of  the  cost 
thereof,  and  a  vote  by  the  latter  company 
to  lease  its  road  on  the  terms  stated,  are  but 
preliminary  to  an  actual  lease,  and  are  there- 
fore not  in  contravention  of  the  Massachu- 
setts statutes,  prohibiting  such  leases. 
Peters  v.  Boston  &>  M.  R.  Co.,  114  Mass.  127. 

Two  railroads  contracted  that  one  should 
take  charge  of  and  operate  the  other,  for  a 
term  of  years,  the  operating  road  to  receive 
65  per  cent,  of  the  gross  earnings  of  the  line 
so  operated,  and  out  of  the  remaining  35 
per  cent,  pay  interest  on  the  road's  bonds, 


and  pay  the  residue  to  the  company  owning 
the  road.  Held,  that  this  was  not  a  lease  of 
the  road  nor  a  contract  of  consolidation, 
but  one  of  connection  between  the  roads. 
Archer  v.  Terre  Haute  &^  I.  R.  Co.,  7  .-h/i. 
&>  Eng.  R.  Cas.  249,  102  ///.  493. 

.•\  contract  between  a  party  and  a  railroad 
company  provided  that  he  should  furnish 
for  the  latter  a  specified  sum  of  money  to 
be  expended  as  desiynaied,  and  also  that  he 
should  be  president  and  should  take  pns- 
session  of  the  road  and  operate  it  to  the 
best  advantage,  devoting  the  earnings  to 
certain  specified  objects,  operating  the  road 
in  the  name  of  the  company,  and  being  paid 
for  his  services.  HeU,  that  the  contract 
did  not  constitute  a  lease,  and  that  his  indi- 
vidual estate  was  not  liable  upon  a  contract 
entered  into  by  the  company  prior  to  his 
contract  therewitli.  United  States  Rolling- 
Stock  Co.  V.  Potter,  48  Iowa  56. 

O.  Agreements  to  execute  leases.— 
An  agreement  for  a  lease  of  real  estate  from 
a  corporation  is  not  required  to  be  executed 
or  assented  to  by  the  corporation  with  the 
same  formality  as  the  lease  itself.  Conant 
V.  Bellows  Falls  Canal  Co. ,  29  Vt.  263. 

10.  Tenancy  fVom  year  to  year.— A 
railway  company  leased  ground  to  another 
for  its  use  for  a  term  of  five  years,  and 
agreed,  in  writing,  to  furnish  to  the  lessee 
company  permanent  station  grounds  and 
other  terminal  facilities,  if,  within  such 
term,  the  latter  should  elect  to  take  certain 
designated  grounds  in  perpetuity.  Within 
the  time  limited,  the  lessee  notified  the 
lessor  that  it  had  elected  to  take  a  per- 
petual lease  of  ground  not  mentioned  in  the 
lease  and  agreement.  Held,  that  the  lessee 
could  not  elect  to  take  grounds  difTercnL 
from  those  named  in  the  writings,  and  at 
the  end  of  the  five  years,  by  holding  over 
several  years,  it  became  a  tenant  from  year 
to  year.  Baltimore,  O.  &^  C.  R.  Co.  v.  Illi- 
nois C.  R.  Co.,  137 III.  9.  27  A'.  /-:.  Rep.  38. 

11.  Tenancy  at  will— Destruction 
of  premises.- A  contract  entered  into  l)e- 
tween  a  railroad  company  and  an  indi- 
vidual, whereby  the  latter  is  to  occupy  a 
certain  building  belonging  to  the  company, 
and  board  section  hands  at  an  agreed  price, 
creates  a  tenancy  terminable  at  the  will  of 
the  company.  Doyle  v.  Union  Pac.  R,  Co., 
147  U.  S.  413,  13  .Sufi.  Cf.  Rep.  333. 

In  theabsence  of  fraud,  misrepresentation, 
or  deceit,  the  railroad  in  such  case  is  not 
responsible  for  injuries   happening  to  the 


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LEASES,  ETC.,  12,  13. 


203 


tenant  by  iieason  of  a  snow  slide  or  ava- 
lanche, by  which  the  building  is  destroyed 
and  the  tenant  injured  and  her  children 
killed.  VoyU  v.  Chioh  Pac.  R.  Co.,  147  U. 
6.  413,  13  Sup.  a.  Kfp.  333. 

2.  Power  to  Make  or  Take  Leases. 
12.  Generally.* — A  corporation  in  debt 
cannot  transfer  its  entire  property  by  lease, 
so  as  to  prevent  the  application  of  the 
property  at  its  full  value,  to  the  satisfaction 
of  its  debts.  Chicago,  M.  Sr*  St.  P.  R.  Co. 
v.  Third  Nat.  Dank,  134  U.  S.  276,  10  Sup. 
Ct.  Rep.  550.— Following  Central  R.  &  B. 
Co.  V.  Pettus,  113  U.  S.  116;  Mellen  v. 
Moline  Malleable  Iron  Works,  131  U.  S.  352. 
Although  the  Southern  Kansas  R.  Co.  is 
organized  under  the  laws  of  Kansas,  and  by 
those  laws  is  authorized  to  lease  its  railroad, 
such  authority  does  not  confer  upon  it  power 
to  lease  a  part  of  its  railroad  situated  beyond 
the  limits  of  the  state,  and  constructed 
through  the  Indian  Territory,  pursuant  to 
the  powers  conferred  by  an  act  of  congress. 
Briscoe  V.  Southern  Kan.  R.  Co.,  40  Ant.  &* 
Eug.  R.  Cas.  599,  40  /•></.  Rep.  273. 

The  use  of  the  words  "  successors  and  as- 
signs" in  a  statute  conferring  authority  on  a 
company  to  construct  its  road  does  not  im- 
pliedly authorize  the  company  to  execute  a 
lease  which  deprives  it  of  the  power  of  ful- 
filling its  corporate  functions.  liriscoe  v. 
Southern  Kan.  R.  Co.,  40  Am.  &*  Ettg.  R. 
Cas.  599,  40  Fed.  Rep.  273. 

Under  the  111.  Act  of  Feb.  12,  1855.  all 
companies  have  power  to  make  contracts  or 
arrangements  with  each  other  for  leasing  or 
running  their  respective  roads  or  any  part 
thereof.  Illinois  Midland  R.  Co.  v.  People 
ex  rd.,  84  ///.  426. 

An  ordinance  giving  a  company  license  to 
construct  its  track  across  and  along  streets 
ami  alleys,  upon  condition  that  it  shall 
permit  other  companies,  not  exceeding  two 
in  number,  to  use  its  main  track,  upon  terms 
agreed  upon,  will  not  prohibit  the  company 
from  leasing  its  track  in  the  city  to  more 
than  two  other  companies.  Chicago  v. 
Chicago  &•  IV.  I.  R.  Co.,  105  ///.  73. 

Mass.  Act  of  1876,  ch.  236,  authorizing  a 
certain  company  to  mortgage  its  property 
to  secure  certificates  of  indebtedness,  and 

*  Power  of  railroad  companies  to  lease,  see 
notes,  32  Am.  &  Eng.  R.  Cas.  409  ;  16  /J.  512  ; 
2  /(/.  238. 

Right  of  corporation  to  lease  franchises,  see 
note,  35  Am.  St.  Rep.  402. 


providing  a  scheme  for  the  creation  of  a 
sinking  fund  to  pay  such  certificates,  docs 
not  prevent  the  company  from  leasing  its 
road  to  another  company  under  the  act  of 
1880,  ch.  205,  where  the  rights  of  holders  of 
such  certificates  of  rndebtedness  are  not  in- 
juriously affected.  Phillips  v.  Eastern  R. 
Co.,  22  Am.  &•  Eng.  R.  Cas.  247,  138  Mass. 
122. 

The  N.  J.  Act  of  May  2,  1885,  entitled 
"  An  act  respecting  the  leasing  of  railroads," 
is  constitutional.  Stockton  v.  Central  R. 
Co.,  51  Am.  >S~»  Eng.  R.  Cas.  i,  50  A'.  /.  Eg. 
52,  24  Atl.  Rep.  964.— Quoting  Montclair 
V.  New  York  &  G.  L.  R.  Co.,  45  N.  J.  Eq. 
442. 

Power  under  the  law  to  mortgage  or  sell 
property,  or  lease  it  for  a  term,  does  not  ex- 
tend to  the  franchises  of  a  corporation,  in- 
cluding the  right  of  way  and  other  property 
essential  to  su"ch  franchises.  Missouri  Pac. 
R.  Co.  v.  Owens,  i  Te.v.App.  (Civ.  Cas.)  163. 

Where  a  railway  company  purchasing  a 
canal  is  authorized  by  statute  to  exercise  all 
its  "  rights,  powers,  and  privileges,"  it  may 
take  a  lease  of  another  canal,  where  this  is  a 
"right,  ^ower,  or  privilege"  possessed  by 
the  canal  purchased.  Rogers  v.  Oxford,  IF. 
(S^  IF.  R.  Co.,  25  Beav.  322;  affirmed  on 
appeal  in  2  De  G.  <S^  J.  662. 

The  charter  of  a  company  provided  for 
the  purchase  or  condemnation  of  land  by 
the  company,  and  when  the  compensation 
therefor  should  be  paid,  that  the  company 
should  be  "  entitled  to  a  full,  free,  and 
perfect  use  and  occupancy  of  the  same  for 
the  purposes  aforesaid,"  Subsequently  its 
charter  was  amended,  empowering  it,  among 
other  things,  to  lease,  "  for  any  term  of 
years,  the  whole  or  any  part  of  its  railroad 
and  franchises."  Held,  that  this  authorized 
the  company  to  lease  lands  acquired  by 
condemnation  after  the  amendment.  Pence 
v.  St.  Paul,  M.  &>  M.  R.  Co.,  28  Minn.  488. 
II  A'.  IV.  Rep.  So.— Following  Freeman 
V.  Minneapolis  &   St.   L.  R.  Co.,  28  Minn. 

443- 

13.  Legislative  aiitliority  neces- 
sary.—Unless  specially  authorized  by  its 
charter,  or  aided  by  some  other  legislative 
action,  a  railroad  company  cannot,  by  lease 
or  other  contract,  turn  over  to  another 
company,  for  a  long  period  of  time,  its  road 
and  all  its  appurtenances,  the  use  of  its 
franchises,  and  the  exercise  of  its  powers, 
nor  can  any  other  railroad  company,  with- 
out similar  authority,  make  a  contract  to 


i 


.:  !  f -^ 


804 


LEASES,  ETC^  14,  15. 


run  and  operate  such  road,  property,  and 
franchises  of  the  first  corporation.  Such  a 
contract  is  not  among  tlie  ordinary  powers 
of  a  railroad  company,  and  is  not  to  be  in- 
ferred from  the  usual  grant  of  powers  in  a 
railroad  charter.  Pennsylvania  R.  Co.  y. 
St.  Louis,  A.  <S-  T.  H.  R.  Co.,  24  Am.  &^ 
Eng.  R.  Cas.  58,  118  (J.  S.  290,  6  Sup.  Ct. 
Rep.  1094.— Reakfirming  Thomas  7/.  West 
Jersey  R.  Co.,  loi  U.  S.  71.— Foi.i.oWKD  in 
Mackintosh  v.  Flint  &  P.  M.  R.  Co.,  36  Am. 
&  Kiig.  R.  Cas.  340,  34  Fed.  Rep.  5S2.— 
Waldoborough  v.  Knox  &•  L.  R.  Co.,  84  Me. 
469.  24  Ati.  Rep.  942.  Troy  &*  R.  R.  Co. 
V.  Kerr,  17  Barb.  (A'.  K)  581.— Applying 
Great  Northern  R.  Co.  v.  Eastern  Counties 
R.  Co.,  9  Hare  306  ;  Winch  v.  Birkenhead, 
L.  &  C.  J.  R.  Co.,  13  Eng.  L.  &  Eq.  506; 
Siirewsbury  v.  Shrewsbury  &  B.  R.  Co.,  i 
Sim.  N.  S.  410;  MacGregor  z/.  Deal  &  D.  R. 
Co.,  16  Eng.  L.  &  Eq.  180;  East  Ai)};lian  R. 
Co.  V.  Eastern  Counties  R.  Co.,  11  C.  B. 
775  ;  West  London  R.  Co.  v.  London  N.  W. 
R.  Co.,  II  C.  B.  254,  327 :  London  &  S.  W. 
R.  Co.  V.  South  Eastern  R.  Co.,  8  Ex.  584  ; 
Ware  v.  Grand  Junction  Water  Co.,  2  R.  & 
M.  ijo.—  Troy  Gf  B.  R.  Co.  v.  Boston,  H.  T. 
Of  IV.  R.  Co.,  7  Am.  <S-  Eng  R.  Cas.  49, 
86  iV.  Y.  107.— Following  Abbott  v. 
Johnstown,  G.  &  K.  H.  R.  Co.,  80  N.  Y.  27  ; 
People  V.  Albany  &  V.  R.  Co.,  77  N.  Y. 
232. — Distinguished  in  Gere  v.  New 
York  C.  &  H.  R.  R.  Co..  19  Abb.  N.  Cas. 
(N.  Y.)  \^i.— Pittsburgh Qt'C.  R.  Co.  v.  Beef- 
ford  &•  B.  A'.  Co.,  81*  Pa.  St.  104.— Quoted 
IN  Lewis  V.  Germantown,  N.  &  P.  R.  Co., 
16  Phiia.  (Pa.)  60S.— Fis/ier  v.  West  Vir- 
ginia (S-  P.  R.  Co.,  {IV.  Va.)  58  Am.  Gf 
Eng.  R.  Cas.  337,  19  S.  E.  Rep.  578.— 
Following  Ricketts  v.  Chesapeake  &  O. 
R.  Co.,  33  W.  Va.  433,  10  S.  E.  Rep.  801.— 
East  Anglian  R.  Co.  v.  Eastern  Counties  R. 
Co.,  xdjiir.  249,  21  L.J.  C.  P.  23,  II  C.  B. 
775.  London,  B.  &>  S.  C.  R.  Co.  v.  London 
6-  S.  W.  R.  Co.,  5  Jur.  N.  5.  801,  20  L.J. 
C/t.  321. 

Mass.  Act  of  1872,  ch.  180,  providing  that 
"any  railroad  corporation  created  by  this 
state  may  lease  its  road  to  any  other  rail- 
road corporation  so  created,"  under  certain 
circumstances,  applies  to  a  corporation  crea- 
ted by  consolidating  a  Massachusetts  cor- 
poration with  others  created  in  two  adjoin- 
ing states,  the  consolidation  being  under  a 
Massachusetts  statute,  as  the  statute  repeals 
the  act  of  1867,  prohibiting  the  leasing  of 
railmaris  without  legislative  authority,  and 


the  act  of  1S71,  subjecting  railroad  corpora- 
tions to  a  forfeiture  of  charter  for  consoli- 
dating with  or  leasing  another  road  without 
authority.  Peters  v.  Boston  &•  J/.  R.  Co., 
114  Mass.  127. 

Under  the  laws  of  Oregon  a  railroad  com- 
pany is  not  authorized  to  make  or  take 
leases  of  railroads  and  franchises.  Oregon 
R.  &■*  N.  Co.  V.  Oregonian  R.  Co.,  39  Ant,  &^ 
Eng.  R.  Cas.  176,  130  U.  S.  1,9  Sup.  Ct, 
Rep.  409. 

14.  Leasing  rond  by  order  of  court 
to  pay  debts.— it  appearing  from  tlie  re- 
port of  the  commissioners  tliat  tlie  annual 
rent  of  the  railroad  is  S37i00o,and  the  debts 
proved  are  but  $1286.91,  tlie  road  should  be 
leased  out  for  the  shortest  period  for  which 
a  suthcient  rent  may  be  obtained  to  pay  the 
debts  and  the  costs  of  the  suit.  And  if  to 
accomplish  this  object  it  is  necessary  to 
lease  the  railroad  for  a  term  which  will 
yield  in  rents  a  sum  far  exceeding  the 
amount  of  the  judgments,  and  cannot  be 
lea-ed  at  all  for  a  shorter  term,  the  creditors 
are  entitled  to  have  it  leased  for  the  longer 
term.  Winchester  &*  S.  R.  Co.  v.  Colfelt, 
27  Gratt.  (Va.)  777,  17  Am.  Ry.  Rep.  121. 

15.  One  coiiiiMUiy  cannot  guar- 
antee anotlier's  lease  without  au- 
thority.— Without  a  law  authorizing  it, 
railroads  cannot  guarantee  the  performance 
of  a  lease  of  a  road  entered  into  by  two 
other  roads,  the  leased  road  being  outside 
of  the  states  creating  the  guaranteeing 
roads,  and  not  connecting  with  their  lines. 
Pennsylvania  R.  Co.  v.  St.  Louis,  A.  &*  T. 
H.  R.  Co.,  24  Am.  &*  Eitg.  R.  Cas.  58,  118 
U.  S.  290,  6  Sup.  Ct.  Rep.  1094.— Distin- 
guished IN  Eastern  Townships  Bank  v.  St. 
Johnsbury  &  L.  C.  R.  Co.,  40  Fed.  Rep.  423. 

111.  Act  of  Feb.  12,  1855,  is  a  sufficient  au- 
thority on  the  part  of  the  St.  Louis,  Alton 
&  Terre  Haute  Co.  to  make  the  lease  sued 
on  in  this  case.  But  if  the  other  party  to 
the  contract,  the  Indianapolis  &  St.  Louis 
Co.,  had  no  such  authority,  the  contract  is 
void  as  to  it;  and  if  the  other  companies 
had  no  power  to  guarantee  its  performance 
it  is  void  as  to  them,  and  cannot  give  a 
right  of  action  against  them.  Pennsylvania 
R.  Co.  V.  St.  Louis,  A.  &>  T.  H.  R.  Co..  ?A 
Am.  &*  Eng.  R.  Cas.  58,  118  U.  S.  290.  6 
Sup.  Ct.  Rip.  1094. 

Section  3303,  Rev.  Laws  Vt ,  which  pro- 
vides that  railroad  companies  may  make 
contracts  for  leasing  and  running  the  roads 
of  other  companies,  confers  upon  a  railroad 


S.  E. 

R. 

U. 

man, 

Co., 

M. 

3'; 

Wal 

Ale.xi 

1; 
In  th 
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propc 
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Co.  ' 
{U. 
Pitts 
Rep. 

Wl 
the 
the 
form 
Unio 


LEASES,  ETC.,  16-18. 


205 


company  power  to  enter  into  a  lease  by 
which  it  agrees  to  guarantee  payment  of  the 
interest  coupons  on  the  mortgage  bonds  of 
the  lessor  company.  Eastern  Towns/iips 
Bit  Ilk  V.  St.  Johnsbiny  6^  L.  C.  R,  Co.,  40 
.Im.  <S~»  Eiig.  A'.  Las.  566,  40  Fitf.  J\fp.  423. 

10.    Ohliifutioiis     to    public     not 
iivoiiUMl   by    unauthorized    lease.*— 
The  franchises  and  powers  granted  to  rail- 
way corporations  are  in  a  large  measure  de- 
signed to  be  exercised  for  the  public  good, 
and  this  exercise  of  them  is  the  considera- 
tiou  of  the  public  grant.     Any  contract  by 
which  the  corporation    disables    itself    to 
perform  those  duties  to  the  public,  or  at- 
tempts to  absolve  itself  from  their  obliga- 
tion without  the  consent  of  the  slate,  is 
a  violation  of  its  contract  with  the  state,  and 
is  forbidden   by  public  policy,  and  there- 
fore void.       Thomas  v.  West  Jersey  K.  Co., 
loi  U.  S.  71.— Reviewed  in  Stockton  v. 
Central  R.  Co..  50  N.  J.  Eq.  ^z.-Gulf,  C. 
6»  5.  F.  K.  Co.  V.  Morris,  35  Am.  &*  Eng. 
R.  Cas.  94,  67  Tex.  692,  4  S.  IV.  Rep.  156.— 
Followed    in   International   &   G.  N.  R. 
Co.  V.  Underwood,  34  Am.  &  Eng.  R.  Cas. 
570,  67  Tex.  589. — International  &*  G.  N.  R. 
Co.  V.  Moody,  35  Am.  6-  Eng.  R.  Cas.  607, 
71  7V?.r.  614,  9  S.  W.  Rep.  465.     Rickeits  v. 
Chesapeake  <&>•  0.  R.  Co.,  41  Am.  6-  Eng.  R. 
Cas.  42,  33  W.  Va.  433,  7  L.  R.  A.  354.  10 
S.  E.  Kep,  801.— Approving  Pennsylvania 
R.  Co.  V.  St.  Louis,  A.  &  T.  H.  R.  Co.,  118 
U.  S.  309;  Grand  Tower  M.  &  T.  Co.  v.  Ull- 
man,  89  111.  244;  Thomas  v.  West  Jersey  R. 
Co.,  loi  U.  S.  71.    Quoting  New  York  & 
M.  L.  R.  Co.  V.  Winans,  17  How.  (U.  S.) 
31 ;  Washington  A.  &  G.  R.  Zo.v.  Brown,  17 
Wail.  (U.  S.)  445.     Reviewing  Naglee  v. 
Alexandria  &  F.  R.  Co.,  83  Va.  707. 

17.  Validity  of  leases,  generally.— 
In  the  absence  of  a  state  statute  forbidding 
railroads  of  the  state  from  leasing  their 
property,  a  lease  is  valid  when  not  against 
public  policy.  Pittsburg,  C.  <S>»  St.  L.  R. 
Co.  V.  Columbus,  C.  &•  I.  C.  R.  Co.,  8  Biss. 
{(/.  S)  456.— Distinguished  in  Moran  v. 
Pittsburgh,  C.  &  St.  L.  R.  Co.,  32  Fed. 
Rep.  878. 

Where  one  company  owns  substantially  all 
the  stock  and  bonds  of  another,  a  lease  of 
the  hitter's  line,  for  rent  to  be  paid  to  the 
former,  is  not  void  for  want  of  consideration. 

Union  Pac.  R.  Co.  v.  Chicago,  R.  I.  &•  P.  R. 

*  Company  cannot  by  lease  divest  itself  of 
duties  or  responsibilities,  see  note,  4  L.  R.  A. 
135- 


Co.,  51  Am.  &•  Eng.  R.  Cas.  162,  51  Fed. 
Rep.  309,  10  t/.  S.  App.  98,  2  C.  C.  A.  174; 
affirming  47  Am.  5»  Eng.  R.  Cas.  340,  47 
Fed.  Rep.  15. 

It  is  not  unlawful  or  improper  to  lease 
ground  for  the  purpose  of  having  an  ele- 
vator erected  thereon.  Such  structures  are 
not  only  universal  along  railroad  lines,  i)ut 
in  the  development  and  promotion  of  com- 
merce, necessitating  increased  facilities  in 
methods  of  farm  products,  they  are  recog- 
nized as  invaluable  auxiliaries  in  the  com- 
merce of  the  country.  Gilliland  v.  Chicago 
<S>»  A.  R.  Co.,  19  Mo.  App.  411. 

An  agreement  between  two  companies  ' 
whereby  one  of  them  agrees  to  withdraw  its 
opposition  to  a  bill  in  parliament  providing 
for  the  leasing  of  a  portion  of  the  other 
company's  line  to  a  third  company,  is  no 
fraud  upon  parliament  so  as  to  make  the 
agreement  invalid.  Shrewsbury  &*  B.  R. 
Co.  v.  London  &•  N.  IV.  R.  Co.,  17  Q.  B. 
652,  16 Jiir.  311,  2!  L.J.  Q.  B.  89;  affirming 
2  M.  &^  G.  324,  z  H.&*  T.  257,  \\  Jur.  921, 
20  L.J.  Ch.  90. 

A  company  incorporated  for  making  and 
maintaining  a  railway  sanctioned  by  its  act 
can  only  apply  its  funds  for  special  pur- 
poses, and  an  agreement  with  another  com- 
pany to  take  a  lease  of  its  line  is  illegal, 
although  the  object  of  it  might  have  been 
increased  profits.  East  Anglian  R.  Co.  v. 
Eastern  Counties  R.  Co.,  xd  Jur.  249,  21  L.J. 
C.  P.  23,  7  Railw.  Cas.  150,  11  C.  B.  775. 

18.  Validity  of  leases  not  author- 
ized by  charter. — The  powers  of  corpora- 
tions organized  under  legislative  chaiters 
are  only  such  as  the  statutes  confer.  Con- 
ceding that  what  is  fairly  implied  is  as 
much  granted  as  what  is  expressed,  it  re- 
mains that  the  charter  of  a  corporation  is 
the  measure  of  its  powers,  and  that  the 
enumeration  of  these  powers  implies  the 
exclusion  of  all  others.  Thomas  v.  IVest 
Jersey  R.  Co.,  101  U.  S.  71.— Applied  in 
New  Castle  Northern  R.  Co.  v.  Simpson,  21 
Fed.  Rep.  533.  Approved  in  Frazier  v. 
East  Tenn.,  V.  &  G.  R.  Co.,  40  Am.  &  Eng. 
R.  Cas.  358,  88  Tenn.  138,  12  S.  VV.  Rep, 
537.  Distinguished  in  Pittsburgh,  C.  & 
St.  L.  R.  Co.  V.  Keokuk  &  H.  Bridge  Co, 
39  Am.  &  Eng.  R.  Cas.  213.  131  U.  S.  371 ; 
Eastern  Townships  Bank  v.  St.  Johnsbury 
&  L.  C.  R.  Co.,  40  Fed.  Rep.  423 ;  Cleveland 
&  M.  R.  Co.  V.  Himrod  Furnace  Co.,  37 
Ohio  St.  321.  Quoted  in  Taylor  v.  Phila- 
delphia &  R.  R.  Co.,  3  Am.  &  Eng.  R.  Cas. 


W- 


I ,) 


20G 


LEASES,  ETC.,  1«,  ao. 


163,  7  Fed.  Rep.  386;  McCalmo  it  v.  Pliihi- 
delphia  &  K.  R.  Co..  14  Hliilu.  (Pa  ,  479. 

A  lease  by  a  company  of  all  its  road, 
rolling  stock,  and  franchises,  for  which  there 
is  no  authority  given  in  its  ciiartcr,  is  ultra 
vires  and  void.  Thomas  \.  West  Jersey  R. 
Co.,  101  U.  S.  71.— DisriNOf  isHtu  in  St. 
Louis.  V.  &  T.  H.  R.  Co.  V.  Terra  Haute  & 
I.  U.  Co.,  33  Fed.  Rep.  440;  Union  Fac.  R. 
Co.  z/.  Chicago,  R.  I.  &  P.  R.  Co.,  51  Am. 
&  Eiig.  R.  Cas.  162,  51  Fed.  Rep.  309,  10  U. 
S.  App.  98,  2  C.  C.  A.  174.  FoLi.uwKU  IN 
Mackintosh  v.  Flint  &  P.  M.  R.  Co.,  36  Am. 
«S  Enjj^.  R.  Cas.  340,  34  Fed.  Rep.  ,  582 ; 
American  Union  Tel.  Co.  v.  Union  Pac.  R. 
Co.,  I  McCrary  (U.  S.)  188,  Quotku  in 
Balsley  v.  St.  Louis,  A.  &  T.  H.  R.  Co..  25 
An).  &  Eng.  R.  Cas.  497,  119  111.  68;  State 
ex  rel.  v.  Atchison  &  N.  R.  Co.,  32  Am.  & 
Eng.  R.  Cas.  388.  24  Neb.  143;  Toledo,  C.  & 
St.  L.  R.  Co.  V.  Hinsdale,  45  Ohio  St.  556. 
Rkaffirmeu  in  Pennsylvania  R.  Co.  7/.  St. 
Louis,  A.  &  T.  H.  R.  Co..  1 18  U.  S.  290. 

The  ordinary  clause  in  the  charter  au- 
thorizing the  company  to  contract  with 
other  transportation  companies  for  the 
mutual  transfer  of  goods  and  passengers 
over  each  other's  roads  confers  no  author- 
ity to  lease  its  road  and  franchises.  Thomas 
V.   litest  Jersey  R.  Co.,  10 1  (/.  S.71. 

19.  Validity  of  leases  by  corpura- 
tioiLS  to  iiulividiiaLs. — A  railroad  corpo- 
ration organized  under  the  general  railroad 
act  has  no  authority,  without  the  consent 
of  the  legislature,  to  lease  its  road  to  an 
individual,  and  where  it  has  so  done  the 
lessor  is  responsible  to  the  public  for  the 
manner  of  operating  the  road ;  as  to  the 
public,  those  operating  it  must  be  regarded 
as  agents  of  the  corporation.  (Folger,  J., 
dissenting.)  Abbott  v.  Johnstown,  G.  <S>»  K. 
H.  R.  Co.,  2  Am.  6^  Eng.  R.  Cas.  541,  80  ,V. 
V.  27,  36  Am.  Rep.  572.  —  Following 
Washington,  A.  &  G.  R.  Co.  v.  Brown,  17 
Wall.  (U.  S.)  445 ;  Nelson  v.  Vermont  &  C. 
R.  Co.,  26  Vt.  717  ;  Macon  &  A.  R.  Co.  v. 
Mayes,  49  Ga.  355  ;  Mahoney  v.  Atlantic  & 
St.  L.  R.  Co.,  63  Me.  68.— Distinguished 
IN  Fisher  v.  Metropolitan  El.  R.  Co.,  34 
Hun  (N.  Y.)433. — Durfee  v.Johnstoivn.  G.  <S~» 
K.  H.  R.  Co.,  71  Hun  {iV.  V.)  279.— Distin- 
guishing Beveridge  v.  New  York  El.  R. 
Co..  112  N.  Y.  I.  Reconciling  Woodruff 
V.  Erie  R.  Co.,  25  Hun  246. 

But  it  may  lease  to  other  railroad  cor- 
porations under  the  act  of  1839,  ch.  218. 
Fi:her  v.  Metropolitan  El.  R.  Co.,  34  Hun 


(iV.  1'.)  433.— Distinguishing  Abbott  v. 
Johnstown.  G.  &  K.  W.  R.  Co.,  80  N.  Y.  27. 

A  lease  of  the  road  and  francliises  to  an 
individual  is  neither  malum  prohibitum  nor 
malum  in  se,  nor  is  it  void  as  contrary  to 
public  policy.  Woodruff  v.  lirie  R.  Co.,  16 
Am.  &-  Eng.  R.  Cas.  501,  93  A'.  )'.  609; 
reversing  25  Hun  246. — Applied  in  Day  7'. 
Ogdensburgh  &  L.  C.  R.  Co.,  107  N.  Y.  129. 
Explained  in  Metropolitan  Trust  Co.  v. 
New  York,  L.  E.  &  W.  R.  Co.^.  45  Hun  84. 
— Followed  in  Beveridge  7'  New  York 
El.  R.  Co.,  112  N.  Y.  I,  19  N.  E.  Rep.  4S9, 
20  N.  Y.  S.  R.  962.  Quoted  in  Gere  ?■. 
New  York  C.  &  H.  R.  R.  Co.,  19  Abb.  N. 
Cas.  (N.  Y.)  193. 

And  a  lessee  who  has,  under  such  a  lease, 
had  the  possession  and  use  of  the  property, 
is  estopped  from  questioning  its  validity  in 
an  action  to  recover  the  stipulated  rent. 
The  estoppel  which  thus  binds  the  lessee 
also  binds  all  who  claim  through  or  under 
him.  Woodruff  v.  Eric  R.  Co.,  16  Am.  &> 
Eng.  R.  Cas.  501,  93  A'.  V,  609;  reversing  25 
Hun  246.— Applying  Bisscll?'.  Michigan  S. 
&  N.  \.  R.  Co.,  22  N.  Y.  258;  Whitney  Arms 
Co.  V.  Barlow,  63  N.  Y.  62,  20  Am.  Rep. 
504.  Distinguishing  Abbott  v.  Johns- 
town. G.  &  K.  H.  R.  Co.,  80  N.  Y.  27,  36 
Am.  Rep.  572.  —  Followed  in  Central 
Trust  Co.  V.  Wabash,  St.  L.  &  P.  R.  Co.,  34 
Fed.  Rep.  259;  Easton  v.  Houston  &  T.  C. 
R.  Co..  38  Fed.  Rep.  784;  Camden  &  A.  R. 
Co.  v.  May's  Landing  &  E.  H.  C.  R.  Co., 
48  N.  J.  L.  530;  Fisher  t/.  Metropolitan  El. 
R.  Co.,  34  Hun  433. 

20.  When  consent  of  stockholders 
necessary.— A  statute  requiring  the  con- 
sent of  stockholders  to  a  lease  of  the  road 
is  for  their  personal  benefit,  and  may  be 
waived  by  long  acquiescence.  So  where  a 
company  leases  its  road,  it  cannot,  after  the 
lapse  of  nineteen  years,  maintain  a  suit  to  set 
aside  the  lease  because  it  was  not  by  tiie 
written  consent  of  the  stockholders.  St. 
Louis.  V.  &o  T.  H.  R.  Co.  v.  Terre  Haute 
&^  I.  R.  Co.,  33  Fed.  Rep.  440;  affirmed  in 
52  Am.  &*  Eng.  R.  Cas.  68,  145  I/.  S.  393, 
12  Sufi.  Ct.  Rep.  953. —  Distinguishing 
Thomas  v.  West  Jersey  R.  Co.,  loi  U.  S. 
71.  Following  Thomas  7'.  Citizens'  Horse 
R.  Co.,  104  III.  462  ;  Taylor  v.  South  &  N. 
Ala.  R.  Co.,  4  Woods  (U.  S.)  575;  Beecher 
V.  Marquette  &  P.  Rolling  Mill  Co.,  45 
Mich,  103,  7  N.  W.  Rep.  695. 

The  provision  in  111.  Act,  Feb.  16,  1S65. 
that  a  lease  of  ^  railroad  in  Illinois  to  a  rail- 


.1 


LEASES,  ETC.,  21. 


20-; 


roiid  out  of  the  state,  without  first  having 
obtained  tlic  written  consent  of  alithestocli- 
hoUlcrs  of  the  lessor  road  residinj^  in  the 
stale,  shall  be  null  and  void,  does  not  limit 
tiie  scope  of  the  powers  conferred  upon  llie 
corporation  by  law,  an  exercise  of  which 
could  not  be  ratified  or  be  made  good  by 
estoppel,  but  only  prescribes  regulations  as 
to  the  manner  of  exercising  corporate  pow- 
ers, compliance  with  which  the  stockhold- 
ers may  waive,  or  the  corporation  might  be 
estopped  by  lapse  of  time,  or  otherwise,  to 
deny.  S/.  Louis,  V.  ^  T.  //.  R.  Co.  v. 
7V77Y  Niiu/e  ^5^•  /.  A'.  Co.,  52  Aw.  6^  Eng.  R, 
Cas.  68.  145  iV.  S.  393,  .13  Sit/>.  Ct.  Rep. 
953;  iiffirmiitfi  33  Fid.  Rep.  440. — DlsiiN- 
c.uisHiNCi  Archer  ?a  Tcrre  Haute  &  1.  K. 
Co.,  102  111.  493. 

Under  Neb.  St.  204,  §  152,  a  railroad  cor- 
poration cannot  lease  its  franchise  and 
property  for  tiie  full  term  of  its  corporate 
existence  without  being  ratified  by  the  stoci<- 
holdcrs;  but  if  such  a  lease  be  made  and 
the  lessee  takes  possession  and  uses  the 
road,  the  lessor  may  recover  a  just  compen- 
sation {ox  the  use  of  tiie  road,  so  long  as  the 
lease  is  acted  on.  Farmers'  L.  tS-  T.  Co. 
V.  .St.  Joseph  &•  D.  C.  R.  Co.,  i  McCrary  ( U. 
S.)  247,  2  Fed.  Rep.  1 17. 

Under  Neb.  Gen.  St.  ch.  2,  ji  94,  a  rail- 
road lease  cannot  be  perfected  until  a  meet- 
ing of  the  stockholders  has  been  called  and 
two  thirds  at  least  of  those  present  or  rep- 
resented shall  assent  thereto ;  and  such 
statute  is  mandatory,  and  renders  a  lease 
void  that  is  executed  without  such  assent 
given  in  an  assembled  meeting.  Peters  v. 
Lincoln  &^  A'.  JV.  R.  Co.,  2  McCrary  (U. 
S.)  275.  12  Fed.  Rep.  513. 

And  such  a  meeting  of  the  stockholders 
cannot  be  dispensed  with  because  they  have 
given  their  assent  in  some  other  mode. 
JWers  V.  Lincoln  &>  N.  W.  R.  Co.,  2  McCrary 
(U.  S.)  275,  12  Fed.  Rep.  513. 

The  above  statute  requires,  as  a  condition 
precedent  to  the  execution  of  the  lease  of  a 
railroad,  that  the  directors  of  each  of  the 
corporations  shall  call  a  meeting  of  the 
stocklioklers  of  each,  at  which  meeting 
tlie  holders  of  at  least  two  thirds  of  the 
Slock  represented  in  person  or  by  proxy  and 
voting,  shall  assent  thereto.  Peters  v.  Lin- 
coln 6-  X.  W.  R.  Co..  4  McCrary  {U.  5.) 
269,  14  Fed.  Rep.  319. 

21.  L(>ascs  as  affecv  'ujf  ri{>:litM  of 
stoekli(>l(U>r.s,  generally.— Where  there 
is  no  legislative  authority  for  ascertaining 


the  damage  inflicted  upon  dissenting  stock- 
holders by  the  majority  diverting  their 
vested  rights  by  an  illegal  lease,  and  for 
awarding  them  compensation  therefor,  the 
court  will  nnt  assume  that  function,  but  will 
annul  the  least,  and  restore  complainants  to 
their  position  bt'ore  those  rights  were  in- 
vaded, regardless  of  the  ctTect  of  such  ac- 
tion upon  the  lessee.  Mills  v.  Central  R. 
Co.,  24  Am.  &r*  Eng.  R.  Cas.  47,41  N.J.  Eg. 
I,  zAtl.  AV/.  453. 

N.  J.  Act  of  iSSo,  supplementary  to  the 
general  railroad  law  of  tlie  state,  providing 
that  any  railroad  may  lease,  consolidate,  or 
merge  with  another  road,  does  not  author- 
ize a  lease  by  directors  against  a  minority  of 
dissenting  stockholders.  Mills  v.  Central 
R.  Co.,  24  Am.  (S>»  Eng.  R.  Cas.  47,  41  N.  J. 
Eq.  I,  2  At  I.  Rep.  453. 

Neither  does  the  act  of  1881,  p.  222,  au- 
thorizing railroad  corporations  of  the  state 
to  merge  or  consolidate  with  those  of  ad- 
joining states,  and  providing  for  compensa- 
tion to  dissenting  stockholders,  authorize  a 
lease  by  one  company  to  another.  Mills  v. 
Central  R.  Co.,  24  Am.  *»  Eng.  R.  Cas.  47, 
41  N.J.  Eq.  I,  2  Atl.  Rep.  453. 

Neither  does  the  net  of  1854,  amending 
defendant  company's  charter,  and  authoriz- 
ing it  to  purchase,  lease,  or  operate  any 
connecting  railroad,  and  providing  for  the 
protection  of  the  rights  of  dissenting  stock- 
holders, authorize  a  lease  of  defendant's 
road.  Mills  v.  Central  R.  Co.,  24  Am.  &^ 
Eng.  R.  Cas.  47,  41  N.J.  Eq.   i,  2  Atl.  Rep. 

453- 

When,  by  the  provisions  of  the  lease  of  a 
railroad,  the  lessee  agrees  to  pay  a  fixed  sum 
semi-annually,  and  guarantees  to  the  lessor 
"an  annual  dividend  of  ten  per  cent.,"  and 
undertakes  to  pay  such  amount  to  the  les- 
sor, such  lease  is  not  a  contract  to  which 
the  stockholders  of  the  company  are  privies, 
and  cannot  be  enforced  by  them,  although 
it  contains  a  stipulation  that  the  lessee 
shall,  upon  presentation  of  the  certificates 
of  stock  of  the  lessor  company,  execute 
thereon  a  guaranty  in  terms  of  the  lease. 
lieveridge  v.  New  York  El.  A'".  Co.,  39  Am. 
&>  Eitg.  R.  Cas.  199,  112  A^.  y.  I.  19  N.  E. 
Rep.  489,  20  A'.  ]'.  >'.  A'.  962  ;  affirming  42 
Hitn  656.  mem.,  5  A^.  Y.  S.  R.  59.— Ai'Pi.v- 
ING  Flagg  7/.  Manhattan  K.  Co.,  20  Blatclif. 
(U.  S.)  142.  Revikwino  Harkness  v.  Man- 
hattan R.  Co.,  22  J.  &  S.  (N.  Y.)  174.— Dis- 
tinguished IN  Durfee  v.  Johnstown,  G.  & 
K.  H,  R.  Co.,  71  Hun  279. 


'  ^      II 


1:08 


LliASts,  ETC.,  22. 


I 


11  ii 


An  agreement  between  two  railway  com- 
panies cuniainin^  a  covenant  tu  divide  tlie 
profits  earned  upon  tlie  line  common  to 
i)oth  companies,  is  no  such  fraud  upon  tlic 
sliareliolders  of  eitlier  c(jmpaiiy  as  renders 
tlie  at,'reement  invalid.  Sltt cwsbr.ry  &••  li. 
K.  Co.  V.  London  ^  .\'.  H'.  A'.  Co.,  17  <J.  li. 
652.  xbjur.  311,  21  I..  J.  (J.  li.  8y;  aftrming 

2  At.  ^  a.  324, 2  Ji.  ^-  J'.  257.  njii>-.  921, 

20  A.y.  Cfi.  yo. 

Tli.i  hondliolders  of  a  railroad  company 
were,  after  foreclosure  of  ii  trust  morttjage 
of  the  road,  incorporated  as  a  new  company 
to  succeed  to  all  the  rights  of  the  old,  with 
a  provision  that  the  capital  stock  should  be 
forty  thousand  shares,  of  which  thirty  thou- 
sand should  be  preferred  and  ten  thousand 
common  stock,  and  that  no  dividend  should 
be  made  on  the  common  stock  until  after 
one  of  seven  per  cent,  had  been  njade  on 
the  preferred.  The  charter  of  the  old  com- 
pany pave  it  power  to  lease  the  road  to 
any  other  connecting  company,  that  of  the 
new  company  requiring  a  vole  of  three 
fourths  for  the  purpose.  Held,  that  the 
company  had  power,  by  a  three-fourths  vote, 
to  lease  the  road  for  ninety-nine  years  to  a 
connecting  road  at  a  Jixed  annual  rental. 
And  the  court  refused  to  set  aside  such  a 
lease,  although  the  entire  rental  was  but 
four  per  cent,  on  the  preferred  stock,  and 
was  to  go,  not  to  the  company,  but  directly 
to  the  preferred  stockholders  as  a  percent- 
age <jn  their  stock,  Mt'ddletown  v.  Boston  &' 
iW.  Y.  Air  Line  Ji.  Co.,  24  Am.  &•  Eng.  li. 
Can.  153,  53  Conn.  351,  5  Atl.  Hep.  706. 

By  the  defendant  company's  charter  the 
old  bondholders  were  authorized  to  convert 
their  bonds  into  its  stock.  The  plaintifTf 
town  was  a  holder  of  some  of  the  common 
stock.  Held,  that  it  could  not,  in  its  suit  to 
set  aside  the  lease,  avail  itself  of  the  fact 
that  some  of  the  bondholders  of  the  old 
company  had  not  exchanged  their  bonds  for 
stock,  and  denied  the  validity  of  the  organ- 
ization of  the  new  company,  nor  of  the  fact 
that  no  provision  was  made  in  the  lease  for 
the  payment  pf  certain  creditors  of  the  com- 
pany. Middle/own  v.  Boston  &^  N.  V.  Air 
Line  A*.  Co.,  24  Am.  &•  Eng.  R.  Cas.  153,  53 
Conn.  351,  5  Atl.  Hep.  706. 

Miiss.  St.  of  1876,  ch.  236,  authorized  the 
IJa  -tern  R.  Co.  to  mortgage  its  property  to 
iiustees,  to  secure  certificates  of  indebted- 
ness to  be  issued  to  its  creditors,  payable 
111  tliirty  years,  and  provided  a  scheme  by 
which  the  holders  of  certificates  were  to 


choose  two  thirds,  and  the  siwcUtiolders 
one  third,  of  the  directors,  tituil  the  debt 
should  be  reduced  to  a  certain  sum,  wluii 
the  power  of  the  holders  (jf  such  certilicatcs 
to  choose  directors  should  cease.  Uniil 
the  debt  should  be  redu;:ed  to  the  sum 
stated,  all  the  net  earnings  were  to  be  a|)- 
plied  to  the  creation  of  a  sinking  fund,  and, 
when  so  reduced,  a  certain  sum  annually 
was  to  be  so  applied.  The  St.  of  iiSSo,  ch. 
205,  authorized  the  Eastern  K.  Co.  to  lease 
its  prcjperty  to  another  railroad  ccjinpany. 
The  St.  of  1882,  ch.  177,  authorized  the 
Eastern  R.  Co.  to  increase  its  (!<ipital  stock 
by  issuing  preferred  stock  to  a  ceriain 
amount,  in  exchange  for  certificates  of  in- 
debtedness, and  provided  that  such  cenili- 
catcs,  when  received,  should  be  canceled, 
and  that  the  holders  of  such  preferred  stock 
should  receive  dividends  out  of  the  net 
earnings  not  exceeding  a  certain  amount, 
semi-annually,  in  such  sums  as  the  direct- 
ors might  determine;  and  that  nothing 
contained  in  the  act  should  afTect  the 
rights  of  the  holders  of  certificates  under 
the  St.  of  1876,  or  authorize  payments 
from  the  earnings  of  the  corporation,  ex- 
cept subject  to  the  claims  and  charges 
created  by  the  St.  of  1876,  and  the  mort- 
gage. The  Eastern  R.  C(j„  after  this,  pro- 
posed to  execute  a  lease  under  ihc  St.  of 
1880,  for  fifty-five  years,  by  which  the  hold- 
ers of  preferred  stock  were  to  receive  semi- 
annually an  amount  by  way  of  dividend 
equal  to  the  interest  on  the  debt  extin- 
guished, as  a  fixed  charge  entitled  to  prior- 
ity under  the  lease.  Held,  on  a  bill  in  equity 
to  restrain  the  execution  of  the  lease,  that 
the  holders  of  preferred  shares  of  stock 
were  to  be  treated  as  stockholders,  and  not 
as  creditors ;  that  the  provision  in  the  lease 
affected  injuriously  the  rights  of  holders 
of  certificates  of  indebtedness,  and  that  an 
injunction  must  issue.  Phillips  v.  Eastern 
Ji.  Co.,  22  Am.  &>  Eng.  Ji.  Cas.  247,  138 
Mass.  122. 

22.  Remedy  of  (lisseiitint;  stock- 
liolderM. — If  a  company,  without  author- 
ity, leases  its  road,  the  lessee  will  only  be 
the  servant  of  the  company  owning  the 
road,  and  such  coi  ipany  will  not  be,  by  the 
act  of  leasing,  discharged  from  its  contracts 
or  liabilities.  A  subscriber  to  the  stock  of 
the  company  owning  the  road,  when  he  has 
paid  his  subscription  and  received  his  cer- 
tificate of  stor!:,  will  have  equitable  rights 
to  be  proterter  by  the  courts,  and  may  pre- 


\i 


LliASIiS,  liTC,  liJi. 


20Q 


viint  fjross  mismannRcmcnt  of  ilie  |)r()|)i;riy 
and  iiiisapplicatioii  of  tlic  funds  uf  tlic  cur- 
poraiioii.  Hut  tliu  mere  fact  of  leasing,  and 
|)r()l)al)lu,  or  even  certain,  luss  in  tlie  earn- 
ings of  tile  company,  will  consliinti;  nn  de- 
fense to  tlie  payinetit  of  llic  sul)scrii)ti(ni. 
If  tlie  lease  is  contrived  (or  the  purpose  of 
(lefrandinf^  tlic  stockliolders  and  sacrilicinj^ 
lliiir  rif;lits,  or  to  pervert  tlie  fiaiicliises 
and  property  from  tlii-'ir  legitimate  to  fraud- 
ulent and  ille!,'al  purposes,  a  court  of  ecpiity 
will  alTord  the  recpiisite  relief;  Init  these  are 
<|ueslions  that  cannot  be  inviistii^ated  in  a 
court  of  law,  in  an  action  on  a  subscription. 
Otla-u'<t,  O.  &^  F.  A'.  I '.  A'.  Co.  v.  Uliu/c,  y<.) 
111.  262.— Ukviiavki)  in  Moston,  C.  A  M.  li. 
Co.  V.  Boston  &  L.  U.  Co.,  65  N.  II.  393. 

A  lease  of  a  railroad,  approved  by  a  two- 
thirds  vote  of  the  st(jckliolders,  and  made 
in  compliance  with  llie  act  of  1883,  is  not 
contrary  to  public  policy,  and  cannot  be  set 
aside  at  the  suit  of  the  state,  or  at  the  suit 
of  the  stockholders  who  voted  to  approve 
it.  If  it  is  illegal,  its  ille({ality  does  not  ex- 
tend beyond  its  violation  of  the  partner- 
ship contract  of  the  stockholders,  and  of. 
that  violation  an  objecting  minority  alone 
can  complain.  Boston,  C.  &^  M.  A'.  Co.  v. 
Bostou  6^  L.  A'.  Co.,  51  .////.  iS-»  Jinx.  J^-  ^''•f- 
106,  65  N.  //.  393,  23  All.  Rcf>.  529. 

The  mere  fact  that  the  same  j)crsonswere 
directors  of  b(Hh  the  lessor  and  the  lessee 
corporations  is  not  of  itself  sufficient  to  avoid 
the  lease  at  the  instance  of  one  or  more 
stockholders,  against  the  will  of  the  corpo- 
ration. The  fact  alone  might  entitle^ either 
corporation  to  avoid  the  lease,  but  does  not 
give  that  right  to  a  stockholder.  Wallace 
V.  Long  Island  R.  Co.,  12  Hun  (/V.  K)  460. 
—Quoted  in  Metropolitan  El.  R.  Co.  v. 
Manhattan  El.  R.  Co.,  15  Am.  &  Eng.  R. 
Cas.  I,  II  Daly  (N.  Y.)  373,  14  Abb.  N.  Cas. 
103. 

Upon  taking  a  lease  of  another  railroad, 
the  lessee  company  guaranteed  a  ten  per 
cent,  annual  dividend  on  the  capital  stock 
of  the  company  leased,  and  also  agreed  to 
execute  a  guaranty  to  that  effect  upon  the 
certificates  of  stock  of  the  leased  company. 
Afterwards  an  agreement  was  entered  into 
between  the  two  companies  for  a  reduction 
of  the  payment  to  a  six  per  cent,  annual 
dividend.  Held,  that  a  stockholder,  not 
being  privy  to  the  contract,  had  no  rights 
except  such  as  the  company  issuing  the 
stock  might  itself  have,  and  was  not  enti- 
tled to  a  mandamus  to  compel  an  issue  of 
6  D.  R.  D.— 14, 


ccriilicates  for  the  payment  of  the  ten  per 
cent,  dividend.  J'loji/e  ix  itl.  v.  Mitrofioii- 
tan  El.  a:  Co.,  26  J/nn  (.V.  J.)  .S2.  JlutJinu^s 
\.  .Uan/iiitlan  A'.  Co.,  11  A'.  )'.  ^'.  /V.  7;,:; 
iijjhining  zi  J.  C'^  S,  174;  ajjii  nud  in  1 13  A'. 
F.  627,  nicnt.,  20  iV.  A".  Rep.  877. 

.After  (jne  road  had  leased  another  and 
had  agrued  to  pay  annually  a  sum  e(|uat  to 
ten  |)er  cent,  on  the  cajtiial  slock  of  the 
leased  company,  the  companies  modified 
the  lease  so  as  to  provide  (or  a  sum  equal  to 
si.x  per  cent.  The  directors  of  both  com- 
panies were  substantially  the  same.  Held, 
ili.it  this  action  was  voidable  at  the  election 
of  eitlier  company,  so  far  as  the  jiower  of 
tlie  directors  was  concerned  ;  but  il'^ir  act 
having  been  a|)proved  by  llie  stockholders, 
at  a  meeting  free  from  fraud,  it  was  valid 
and  binding.  Hari-ness  v.  Manhattan  R. 
Co.,  II  A'.  J'.  .V.  R,  732;  affirniint[  22  /.  &• 
S.  174  ;  affirmed  in  1 13  A'.  J'.  627,  metn.,  20 
iV.  /•;.  Rep.  H77. 

an.  ItiKlitH  of  Htoi'kliulderH  H'liere 
Umlhu  Im  I'ruiidiilciit.— The  S.  B.  &  E.  J. 
R.  Co.,  defendant,  was  incorporated  to 
construct  a  railroad  to  connect  the  road  of 
the  E.  R.  Co.  with  other  roads  ;  some  of  the 
incorporators  were  directors  of  the  latter 
company.  In  June,  1870,  a  contract  was 
made  by  the  new  company,  ostensibly  with 
one  S.,  who  agreed  to  construct  the  road, 
the  company  to  issue  in  payment  therefor 
$1,000,000  of  its  bonds  and  $500,000  of  its 
capital,  which  was  to  constitute  all  of  its 
stock  and  bond  debt.  S.  in  reality  acted 
for  a  syndicate  composed  wholly  of  mem- 
bers o(  the  board  of  directors  of  said  com- 
pany, part  of  whom  were  also  directors  f)f 
the  E.  R.  Co.;  S.,  a  few  days  thereafter,  as- 
signed the  contract  to  the  syndicate.  In 
July,  1870,  the  new  company  leased  all  of 
its  property  and  franchises  to  the  E.  R.  Co., 
the  lessee  agreeing  to  pay  as  rent  a  certain 
proportion  of  the  gross  earnings,  guarantee- 
ing that  this  should  never  be  less  than 
$105,000.  The  executive  committee  of  the 
E.  R.  Co.  passed  a  resolution,  which,  after 
reciting  the  lease  and  the  guaranty  of  a 
rental  equal  to  seven  per  cent,  interest  on 
the  bonds, and  seven  per  cent,  dividends  on 
the  stock  of  the  lessor,  authorized  the  exe- 
cution of  the  guaranty  of  the  payment  of 
semi-annual  dividends  of  three  and  one 
half  per  cent,  on  the  stock.  The  stock  and 
bonds  were  issued  to  members  of  the  syndi- 
cate ;  they  expended  about  $850,000  in  the 
construction  of  the  road.     In   December,  . 


I 


^Vf 


210 


LEASES,  ETC.,  24. 


IS! 


1870,  the  road,  being  about  completed,  was 
taken  possession  of  by  tiie  lessee.  In  Feb- 
ruary, 1871,  ilie  directors  of  the  lessor  for- 
n'aily  ratified  the  lease.  In  1875  the  lessee 
became  insolvent ;  a  receiver  was  appointed, 
who,  by  authority  of  the  court,  continued 
to  operate  the  leased  road.  Tlie  lessee  and 
its  receiver  bought  in  all  of  the  stock  of  the 
lessor,  except  certain  shares  owned  by 
plaintifls,  and  thereby  obtained  complete 
control,  and  tliereafter  elected  directors  in 
tlie  interest  of  the  lessee.  The  property 
and  assets  of  the  lessee,  including  tlie  lease, 
were  sold  under  a  mortgage  foreclosure 
judgment.  In  1878  the  N.  Y.,  L.  E.  &  W. 
H.  Co.  became  the  owner,  it  covenanting 
to  pay  all  of  the  receiver's  liabilities,  and  it 
has  since  continued  to  operate  the  leased 
road,  which  is  of  great  value  to  it  as  con- 
necting its  own  and  other  roads,  but  it  has 
paid  nothing  except  interest  on  the  bonds, 
refusing  to  pay  that  portion  of  the  rental 
represented  by  tlie  guaranty  of  dividends 
on  the  stock.  In  an  action  to  compel  the 
N.  Y.,  L.  E.  &  W.  R.  Co.,  as  successor 
in  interest  of  the  lessee,  to  pay  the  balance 
of  the  rent  reserved,  the  trial  court  found 
tliat  the  syndicate,  fraudulently  and  for 
their  own  benefit  and  gain,  caused  the 
building  contract,  the  lease,  and  the  guar- 
anties to  be  made,  and  directed  a  dismissal 
of  the  complaint.  NM,  error;  that  the 
fraudulent  nature  of  the  transaction  did 
not  render  the  lease  absolutely  void,  but 
simply  voidable ;  and  that  the  lessee  and 
its  successor  in  interest  could  not  retain 
t.'ie  possession  and  enjoy  the  use  of  the 
leased  property,  after  knr  wledge  of  the 
fiaud.  and  with  opportunity  to  act  in  repu- 
diation, without  becoming  liable  to  pay  the 
rent  reserved  ;  that  the  vice  in  the  original 
! lansaction  did  not  necessarily  so  affect  the 
lease  as  to  prevent  ratification,  or  its  sur- 
\ival  after  acts  on  the  part  of  the  lessee  and 
its  successor  in  interest,  with  knowledge  of 
the  fraud,  amounting  in  effect  to  acquies- 
cciue  and  waiver.  Jutrr  v.  AVa'  ]'(>>■/:,  L. 
K.  &^  W.  A\  Co.,  47  ^If/i.  <S"  Eiijr.  A'.  Cas. 
329,  125  iV.  ]'.  263,  26  iV.  £.  A'f/>.  145,  34 
i\'.  )'.  5.  A".  743;  ri"i<ersin):;  52  Hun  555,  24 
A'.  Y.  S.  .V.  1S8,  5  A',  y.  Supp.  623.  — Rkc- 
tiNCMi.iNc,  Munson  v.  Svacuso,  G.  &  C.  R. 
Co.,  103  N.  Y.  58  ;  Warden  v.  Union  Pac. 
K.  Co.,  103  U.  S.  651. — FoLLowKi)  IN  Coe 
V.  Kast  &  \V.  R.  Co.,  52  Fed.  Rep.  531. 

I'laintilTs,  as   stockholoers,  could    main- 
tain  the  action,  as  their  corporation  was 


wholly  under  the  control  of  its  lessee. 
Barr  v.  New  York,  L.  E.  <S-  W.  R.  Co.,  47 
Ant.  &>  Eng.  R.  Cas,  329,  125  A'.  V.  263,  26 
A'.  E.  Rep.  145,  34  A',  v.  S.  R.  743 ;  revrrs- 
ing  52  Hun  555,  24  A^,  Y.  S.  R.  188,  5  A\  Y. 
Supp.  623. 

The  N.  Y.,  L.  E.  &  W.  R.  Co.  was  not 
in  a  position  to  question  the  legality  or 
validity  of  the  issue  of  the  shares  of  stock 
held  by  plaintifls,  as  the  members  of  the 
syndicate  that  built  the  road  of  the  S.  H. 
.&  E.  J.  R.  Co.  were  practically  the  com- 
pany, they  holding  all  of  its  stock,  and  so 
the  manner  in  which  they  chose  to  build 
the  road  and  to  divide  up  their  interests 
concerned  only  themselves,  and  however  il- 
legal the  transaction,  no  one,  so  far  as  ap- 
peared, could  complain.  Barr  v.  Neiv 
York.  L.  E.  Sf  W.  R.  Co.,  47  Aw.  &^  Etig. 
R.  Cas.  329,  125  A'.  Y.  263,  26  A'.  E.  Rep. 
145,  34  A^.  Y.  S.  R.  743  ;  reversing  52  Hun 
555,  24  -V.   Y.  S.  R.  188,  5  A'.   Y.  Supp.  623. 

//  seems  that  no  principle  of  law  forbade 
the  said  company  from  agreeing  to  pay  for 
the  construction  of  its  road  in  the  way  or  in 
the  amount  it  did.  Barr  \..  New  York,  L. 
E.  &^  \V.  R.  Co.,  47  Am.  6-  Eng.  R.  Cas. 
329,  125  N.  Y.  263,  26  A'.  E.  Rep.  145,  34  A'. 
y.  S.  A'.  743  ;  r  ever  si  tig  52  Hun  555,  24  N. 
Y.  S.  R.  188,  5  A'.  Y.  Supp.  623. 

24.  When  directors  may  execute. 
— If  power  to  lease  its  railroad  is  conferred 
upon  a  corporation  by  its  charter  or  by 
statute,  the  board  of  directors  may,  without 
the  consent  of  the  stockholders,  execute  a 
lease  .thereof.  Beveriifge  v.  New  York  El. 
R.  Co. ,  39  Am.  (&-»  Eng.  R.  Cas.  1 99,  112  A'. 
]^.  I,  19  A^.  E.  Rep.  489,  20  A^.  Y.  S.  R.  962  ; 
affirming  42  Hun  656,  5  N.  V.  S.  R.  59. — 
Foi.i.owiNG  Woodruff  t/.  Erie  R.  Co.,  93  N. 
Y.  616.  Rf.vif:\ving  People  z'.  O'Brien,  11 1 
N.  Y.  I. 

An  agreement  by  which  the  lessor  of  a 
railroad  agrees  to  accept  from  the  lessee  a 
smaller  rental  on  account  of  financial  em- 
barrassment of  the  lessee,  is  within  the 
power  of  the  board  of  directors,  without  any 
concurrent  action  or  ratification  by  the 
stockholders.  Bti>cridge  v.  Ne7u  York  El. 
R.  Co.,  39  Am.  >S>»  Eng.  R.  Cas.  199,  112  X. 
Y.  I,  19  A'.  E.  Rep.'  4iiq,  20  A'.  J'.  S.  A. 
962  ;  afTirniing  \1  Hun  656,  5  A^.  J '.  .S'.  A. 
59.  — OuoTiNG  Hoyt  V.  Thompson,  19  N.  V. 
216. 

A  railroad  corporation  can  only  elToct  14 
lease  of  its  road  or  make  substantial  m<>(li- 
fications  of  an  existing  lease  by  the  concur 


LEASES,  ETC.,  25,  26. 


211 


rent  action  of  its  board  of  directors  and  its 
stockholders.  ;1/f/»-"  "^olitan  El.  R.  Co.  v. 
Manhattan  El.  R.  Co.,  15  A»t.  &^  Eng.  R. 
Ois.  I,  II  Valy  (A'.  F.)  373.  U  ^M. -IV.  Cas. 
103. 

A  ra'lroad  company  leased  its  road  to  an- 
other company,  and  subsequently  by  agree- 
nunt  modified  the  terms  of  the  leiise.  A 
bill  being  filed  to  set  aside  the  agreement — 
//<■/(/,  tliai  the  objection  could  not  be  raised 
•.nat  the  original  lease  was  a  nullity,  being 
made  without  authority  of  law,  and  that 
the  etTect  of  a  decree  in  accordance  with 
the  prayer  of  the  bill  would  be  to  reinstate 
it,  as  it  did  not  follow  that  such  would  be 
the  result.  Metropolitan  El.  R.  Co.  v.  Man- 
hattan El.  R.  Co.,  15  Aw.  <S-  Enj,'^.  R.  Cas.  i, 
1 1  JJafy  (A'.    F.)  373,  14  AM.  N.  Cas.  103. 

The  complaint  stated  that  a  'ease  was 
executed  by  the  officers  of  the  defendant 
corporation  in  pursuance  of  a  resolution 
duly  passed  by  its  board  of  directors  ;  the 
answer  admitted  the  execution  of  the  Itase 
undi-r  the  corporate  seal,  but  alleged  that 
tlie  meeting  at  which  the  resolution  was 
passe;!  authorizing  such  execution  was  held 
without  a  quorum  ;  the  reply  denied  Itnowl- 
ed<;e  or  information  concerning  the  want  of 
a  quorum  sufficient  to  form  a  belief.  Held, 
that  tlie  burden  of  proof  was  on  the  defend- 
ant. Oregonian  R.  Co.  v.  Oregon  R.  &~'  A'. 
Co.,    '  Snu'v.  {U.  S.)  109. 

25.  Void  lenses  as  affecicd  by 
laclio.s  siiid  other  acts  of  parties. — An 
unauthorized  lease  by  officers  of  a  corpora- 
lioii  will  be  declared  invalid;  and  mere  si- 
lence will  not  be  construed  as  acquiescence. 
Ki-ruy  Oil  Co.  v.  Oil  Creek  d-  A.  R.  Co.,  12 
P/iila.  (Pa.)  374.  —  Quoting  Gordon  v, 
Preston,  i  Watts  (Pa.)  387. 

If  a  corporation  has  no  power  to  make  a 
lease,  it  has  no  power  to  ratify  it  by  accept- 
injr  rent  thereunder.  Ogdensbttrgh  &>  I..  C. 
R.  Co.  V.  Vermont  &^  C.  R.  Co.,  4  Hun  (N. 
v.)  268,  6  T.&^  C.  488. 

The  fact  that  a  majority  of  the  directors 
of  a  lessor  company  are  personally  inter- 
ested in  the  lessee  company  will  not  make 
the  lease  void,  but  merely  voidable  at  the 
election  of  the  lessor,  or  at  the  suit  of  stock- 
holders brought  within  a  reasonable  time. 
Jisiip  V.  Illinois  C.  R.  Co.,  43  Fed.  Rep. 
483. 

-<J.  Ultra  vires  leases.— (i)  General 
rules.— \  lease  by  one  railroad  corporation 
ff  its  jiroperty  and  franchises  to  another 
corporation  for  a  period  of  twenty  years  or 


more  is,  in  the  absence  of  all  legislative  au- 
thority to  make  such  lease,  ultra  vires  and 
void.  Memphis  &*  C.  R.  Co.  v.  Grayson,  43 
Am.  <S-  Eng.  R.  Cas.  681,  88  Ala.  572,  7  So. 
Rep.   122. 

A  lease  whereby  a  railroad  company  at- 
tempts to  transfer  its  entire  road  and  fran- 
chises, in  consideration  of  a  stipulated  rent 
as  a  dividend  on  the  stock,  is  ultra  vires. 
Middlesex  7\'.  Co.  v.  Boston  &>  C.  R.  Co.  ,115 
Mass.  347,  7  Am.  Ry.  Rep.  469.-  DISTIN- 
GUISHED IN  Cleveland  &  M.  R.  Co.  v. 
Himrod  Furnace  Co.,  37  Ohio  St.  321. 

And  such  lease  being  invalid,  the  lessee 
cannot  recover  from  the  lessor  the  expenses 
of  renewing  the  road.  Middlesex  R.  Co.  v. 
Boston  &'  C.  R.  Co.,  1 1 5  Mass.  347,  7  Am. 
Ry.   Rep.  469. 

Where  an  unauthorized  lease  for  twenty 
years  was  made,  and  the  lessors  resumed 
possession  at  the  end  of  five  years,  and  the 
accounts  for  that  period  were  adjusted  and 
paid,  a  condition  in  the  lease  to  pay  the 
value  of  the  unexpired  term  is  void,  the  case 
not  coming  within  the  principle  that  exe- 
cuted contracts  originally  ultra  vires  shall 
stand  good  for  the  protection  of  rights 
acquired  under  a  completed  transaction. 
Thomas  v.  West  Jersey  R.  Co.,  loi  U.  S. 
71.— Di.STiNGUiSHEU  IN  Camden  &  A.  R. 
Co.  7'.  May's  Landing  &  E.  H.  C.  R.  Co.,  48 
N.  J.  L.  530.  Quoted  in  Taylor  v.  South 
&  N.  Ala.  R.  Co.,  4  Woods  (U.  S.)  575. 

Where  an  action  is  on  a  lease  to  recover 
some  consideration  thereunder,  the  defend- 
ant may  attack  it  on  the  ground  of  ultra 
vires,  but  where  the  action  is  by  the  lessee 
against  a  third  party  for  services  rendeied, 
the  authority  of  the  lease  cannot  be  called 
in  question.  Southern  Pac.  Co.  v.  United 
States,  28  67.  of  CI.  T]. 

Where  one  company  leases  its  road  to 
another,  a  provision  that  the  lessee  company 
shall  pay  by  way  of  rent  the  interest  on  the 
mortgage  bonds  of  the  lessor  during  the 
lease,  and  the  principal  on  the  bonds  at  its 
termination,  is  not  ultra  vires.  Gere  v. 
A\-7C>  York  C.  (T-  //.  R.  R.  Co.,  19  Abb.  N. 
Cas.  (A'.  1^.)  193. 

An  agreement  between  three  railway  com- 
panies, that  they  will  partici|)ate  in  portions 
of  each  otlier's  |)rofits,  and  that  two  of  such 
companies,  who  propose  to  assume  the  rela- 
tions of  lessor  and  lessee,  sliall  not  take 
traffic  on  specified  portions  of  their  lines,  is 
ultra  vires  and  will  not  be  sperificallv  en- 
forced.    Shre%vsbury  &'  B.  R.  Co.  v.  London 


i. 


''>  s 


!12 


LEASES,  ETC.,  27,  28. 


m 


'.if 


(&«•  ^V.  W.  /?.  Co.,  4  Z»^  a,  il/.  6r-  G.  us,  17 
/«r.  845.  22  Z.  /.  C//.  682. 

(2)  Illustrations.— 1\ie.  L.  M.  &  B.  R. 
Co.,  organized  to  construct,  own,  and  main- 
tain a  railroad  from  Muncie,  Ind.,  by  way  of 
Lafayette,  to  the  western  boundary  of  the 
state,  in  the  direction  of  Bloomington,  111., 
by  a  written  agreement  vvitli  the  L.  B.  &  M, 
R.  Co.,  organized  to  construct  a  railroad 
from  Bloomington,  111.,  to  the  eastern  bound- 
ary of  that  state,  in  the  direction  of  Lafay- 
ette, Ind.,  transferred,  granted,  and  conveyed 
to  the  latter  company,  its  lessees,  successors, 
and  assigns,  for  the  period  of  ninety-nine 
years,  renewable  at  the  pleasure  of  the  latter 
company,  the  exclusive  right  to  transport 
passengers  and  freight  over  that  part  of  the 
railroad  of  the  former  company  lying  be- 
tween Lafayette  and  the  western  state  line, 
with  possession  thereof,  the  said  latter  com* 
pany  to  use  and  maintain  said  part  of  said 
road,  pay  the  taxes  thereon,  perform  cer- 
tain contracts  theretofore  made  by  the  for- 
mer company,  and  pay  to  the  former  com- 
pany, or  for  its  use,  certain  sums  of  money, 
said  agreement  being  made  by  the  directors 
and  officers  of  said  companies,  without  the 
consent  of  their  stockholders.  Said  latter 
company  assigned  said  agreement  to  the  T. 
W.  &  W.  R.  Co.  owning  and  operating  a 
railroad  running  from  Toledo,  Ohio,  to 
Quincy,  111.,  by  the  way  of  Lafayette,  Ind. 
Held :  (1)  that  said  agreement  was  ultra  vires 
and  void ;  (2)  that  an  action  would  lie  on 
behalf  of  a  stockholder  of  the  L.  M.  &  B. 
R.  Co.,  without  previous  demand  by  him 
for  redress  on  the  directors  of  said  company 
and  a  refusal  by  them,  against  all  said  com- 
panies, for  an  injunction  and  to  declare  void 
said  agreement  ?nd  assignment,  and  that 
the  fact  that  after  the  commencement  of 
such  action  the'  L.  M.  &  B.  R.  Co.  filed  a 
cross-complaint  therein,  seeking  the  same 
relief,  was  not  a  sufficient  answer  on  behalf 
of  the  other  two  companies  to  the  original 
complaint.  Tippecanoe  County  Com'rs  v. 
Lafayette,  M.  &*  B.  R.  Co.,  50  Ind.  85, 8  Am. 
AV.  Rep.  324.— Reviewed  in  Pittsburg,  C. 
&  St.  I..  R.  Co,  V.  Columbus,  C.  &  I.  C.  R. 
Co.,  8  Biss.  (U.  S.)  456. 

In  1863  a  Rhode  Island  railroad  corpora- 
tion executed  a  lease  of  its  road  to  a  Con- 
necticut corporation  in  perpetuam,  with  a 
provision  that  the  stockholders  of  the  for- 
mer should  receive  stock  in  the  latter,  or  a 
fixed  price  in  money.  This  lease  was  ratified 
by  the  Rhode  Island  legislature  In  1865.    A 


year  later  the  lessee  company  mortgaged  the 
road,   and   became  bankrupt,  and  was  dis- 
solved by  a  court  in  Connecticut  in  1S73. 
The    mortgage    was    foreclosed    in    Rhode 
Island,  in  1875,  the  road  sold,  and  a  new  cor- 
poration formed.     Soon  afterwards  certain 
stockholders  of  the  leased  road  filed  a  bill  to 
redeem,  alleging    that  the   lease  was  ultra 
vires,  obtained  by  fraud,  and  subject  to  cli- 
tain  conditions  precedent  wliich  had  not  been 
performed.     Held,  that  the  lease  was  ultra 
vires,  but  that  coni|)Iainants,  by  their  delay 
and   by  allowing  the  intervention  of  other 
equities,  were  precluded  from  relief.     Boston 
&'  P.  R.  Corp.  V.  Ne-iO  York  &•  N.  E.  R.  Co., 
2  Am.  &^  Ei'g'  i^-  Cas.  300,   13  R.  I.  260.— 
Followed  in  Emerson  7>.  New  York  &  N. 
E.  R.  Co.,  16  Am.  &  Eng.  R.  Cas.  404,  14  R. 
!•   555'     Quoted  in    Providence  Coal  Co. 
V.  Providence  &  W.'R.  Co.,  15  R.  I.  303. 

Certain  provisions  in  the  agreement  rela- 
tive to  the  cost  of  purchasing  and  complet- 
ing another  road,  to  the  stock  subscriptions 
of  the  B.  H.  &  E.  R.  Co.,  and  to  the  issue 
and  transfer  of  stock  to  trustees,  could  not 
be  considered  conditions  precedent  to  the 
transfer.  Boston  &*  P.  R.  Corp.  v.  New 
York  &^  N.  E.  K.  Co.,  2  Am.  &^  Eng.  R.  Cas. 
300,  1 3  R.  I.  260. 

27.  Authority  to  lease  a  coiinect- 
iii{>:  road  may  iiicliitlc  a  eoinpcting 
road. — By  New  York  Act  of  1859,  ch.  444, 
defendant  company  was  authorized  to  take 
and  accept  a  lease  of  any  connecting  road^ 
or  that  might  thereafter  connect,  and  to  run 
and  operate  the  same.  Held,  that  this 
authorized  defendant  to  lease  a  competing 
road  if  the  two  were  capable  of  forming  a 
continuous  line.  Wallace  v.  Lotig  Island 
R.  Co.,  12  Hun  {N.   Y.)  460. 

In  such  case  it  was  not  necessary  that  the 
leased  road  should  connect  with  defendant's 
road  at  its  terminus.  It  was  sufficient  if  it 
intersected  at  any  point.  Wallace  v.  Long 
Island  R.  Co.,  12  Hun  (N.  Y.)^6o. 

The  lease  of  a  competing  road  would  not 
be  void  as  a  violation  of  New  York  Act  of 
1869,  ch.  917,  providing  generally  for  the 
consolidation  of  railroads,  but  prohibiting  it 
as  to  parallel  or  competing  roads.  Wallace 
v.  Long  Island  R.  Co.,  12  Hun  (N.  Y.)  460. 

28.  Leases  for  a  long  term  of  years. 
— Unless  expressly  authorized  by  the  char- 
ters of  both  companies,  or  by  the  laws  of 
the  states  creating  them,  a  lease  of  one  rail- 
road for  the  period  of  999  years  is  wholly 
void,  and  cannot  be  subsequently  ratified. 


LEASES,  ETC.,  39. 


2K 


5/.  Louis,  V.  (S-  T.  H.  R.  Co.  v.  Terre 
Haiti c  iS-  /.  K.  Co.,  S^  •^»»-  ^  ^ng-  -^^  Cas. 
68.  145  U-  ^-  393.  '2  Sup.  Ct.  Rep.  953; 
affirmiitg  33  /V</.  ^t;^.  44°. 

Ur.der  section  1920  of  the  Code  6f  Iowa, 
wliicli  provides  that  every  disposition  of 
property  is  void  which  suspends  the  abso- 
lute power  of  controlling  the  same  for  a 
longer  period  than  during  the  lives  of  per- 
sons then  in  being,  and  for  21  years  there- 
after, the  lease  of  a  railroad  for  the  term  of 
999  years,  with  a  rent  reserved  of  30  per 
cent,  of  the  gross  earnings  of  the  road,  is 
not  prohibited,  where  the  right  to  dispose 
of  the  fee  remains  in  the  lessor.  Todhunier 
V.  Dvs  Moines,  I.  iS^»  M.  R.  Co.,  7  Am.  &^ 
Eng.  R.  Cas.  67,  58  Iowa  205,  12  N.  W.  Rep. 
267. 

Under  the  laws  of  Indiana,  without  ex- 
press grant,  a  railroad  company  cannot  be 
a  party  to  the  lease  of  a  railroad  for  a  term 
of  99  years.  Pennsylvania  R.  Co.  v.  St. 
Louis,  A.  &>  T.  H.  R.  Co.,  24  Am.  &•  Eng. 
RCas.  58,  118  [/.  S.  290,  6  Sup.  Ct.  Rep. 
1094.— Followed  in  Pittsburgh,  C.  &  St. 
L.  R.  Co.  V.  Keokuk  &  H.  Bridge  Co.,  39 
Am.  &  Eng.  R.  Cas.  213,  131  U.  S.  371  ;  St. 
Louis.  V.  &  T.  H.  R.  Co.  V.  Terre  Haute  & 
I.  K.  Co.,  14s  U.  S.  393,  12  Sup.  Ct.  Rep. 

953. 

Where  a  railroad  company,  without  au- 
thority of  law,  leases  its  road  to  another 
railroad  company,  with  all  its  rights,  prop- 
erty, and  franchises,  for  a  long  period  of 
time,  it  thereby  abandons  the  operation  of 
its  road,  and  is  subject  to  forfeiture.  State 
ex  rcL  v.  Atchison  <S>«  A'.  R.  Co.,  32  Am.  &* 
Eng.  r:  Cas.  388,  24  Ned.  143,  38  N.  W. 
Rep.  43. 

Where  a  road  is  incorporated  for  a  term 
of  100  years,  a  lease  of  its  property  and 
franciiises  for  475  years  is  not  necessarily 
void  because  it  extends  beyond  the  com- 
pany's corporate  existence.  It  may  be  valid 
for  the  period  of  the  company's  corporate 
existence,  and  beyond  that  time  its  validity 
will  depend  upon  the  extension  of  the  com- 
p^my's  existence.  Gere  v.  A^ew  York  C.  «S- 
//.  A'.  A'.  Co.,  19  Abb.  N.  Cas.  (JV.   V.)  193. 

The  Pennsylvania  R.  Co.  being  about  to 
purchase  the  rolling  stock  and  bonds  of  the 
Sunbury  &  Erie  R.  Co.  and  to  lease  it  for 
the  term  of  999  years,  the  lessee  agreeing, 
by  the  contract,  to  keep  the  road  in  repair, 
maintain  its  equipment,  and  pay  30  per  cent. 
of  tlie  gross  earnings  for  taxes,  interest  on 
bonds,  etc.,  and  the  balance.  If  any,  to  the 


lessors ;  on  bill  in  equity,  filed  by  a  stock- 
holder in  both  companies,  for  a  preliminary 
injunction  against  the  proposed  purchase 
and  lease — /te/d.  that  the  intended  con- 
tracts were  valid,  because  within  the  cor- 
porate power  of  the  two  companies,  under 
the  Acts  of  Assembly  of  April  13,  i860,  and 
April  23,  1861,  and  that  tliey  were  not 
assignments  in  trust  for  the  benefit  of  cred- 
itors, with  preferences.  Grats  v.  Pennsyl- 
vania  R.  Co.,  41  Pa.  St.  447. — Distinguish- 
ing Lucas  V.  Sunbury  &  E.  R.  Co.,  32  Pa. 
St.  458.— Followed  in  Wood  v.  Bedford 
&  B.  R.  Co.,  8  Phila.  (Pa.)  94.  Reviewed 
IN  Black  V.  Delaware  &  R.  Canal  Co.,  22 
N.  J.  Eq.  130. 

20.  LeuscH  to  or  from  foreign  cor- 
porations.—Under  Rev.  St.  111.  1874,  ch. 
114,  §  34,  which  provides  that  all  railroad 
com|)anies  incorporated  under  the  laws  of 
the  state  are  empowered  to  make  "  contracts 
and  arrangements  with  each  other,  and  with 
railroad  corporations  of  other  states,  for 
leasing  or  running  other  roads,  or  any  part 
thereof,"  the  words  "  other  roads  "  include 
roads  of  Illinois  corporations  as  well  as 
roads  of  corporations  of  other  states,  and 
the  power  conferred  on  corporations  of  Illi- 
nois to  make  contracts  "  for  leasing  "  such 
roads  includes  making  as  well  as  taking 
leases  thereof.  St.  Louis,  V.  <&*  T.  H.  R. 
Co.  V.  Terre  Haute  <&«•  /.  R.  Co.,  52  Am.  &* 
Eng.  R.  Cas.  68,  145  (/.  S.  393,  12  Sup.  Ct. 
Rep.  953. 

Where  the  parties  to  a  lease  are  in  pari 
delicto,  and  the  contract  has  been  executed 
on  the  part  of  the  plaintiff  by  the  delivery 
of  the  leased  property,  the  plaintiff  cannot 
recover  back  the  possession  of  the  property 
leased ;  so  where  the  lease  of  an  Illinois 
railroad  to  an  Indiana  railroad  is  ultra  vires 
as  to  the  latter,  the  former  is  bound  to  take 
notice  of  such  fact.  Where  the  contract  of 
lease  has  been  lully  executed  on  the  part  of 
the  plaintiff  by  the  actual  transfer  of  its  rail- 
road and  franchise  to  the  defendant,  and 
the  defendant  has  held  the  property  and 
paid  the  stipulated  consideration  from  time 
to  time  for  seventeen  years,  so  far  as  the 
plaintiff  corporation  can  be  considered  as 
representing  the  stockholders  and  seeking 
to  protect  their  interests,  it  and  they  are 
barred  by  laches  in  failing  to  bring  an  ac- 
tion to  set  the  lease  aside  in  that  time.  St. 
Louis,  V.  &•  T.  H.  R.  Co.  v.  Te^re  Haute 
&*  I.  R.  Co.,  52  Am.  &•  Eng.  R.  Cas.  68,  145 
^-  -*>•  393.  '2  Sup.  Ct.  Rep.  953;  affirming 


I 


I 


■■  \'-  yfe 


2U 


LEASES,  ETC.,  30. 


33  Fed.  Rep.  440.  —  Following  Pennsyl- 
vania R.  Co.  V.  St.  Louis,  A.  &  T.  H.  R. 
Co.,  n8  U.  S.  290,  6  Sup.  Ct.  Rep.  1094. 

The  provision  in  Illinois  Act  of  Feb.  16, 
1865,  that  a  lease  of  a  railroad  in  Illinois  to 
a  railroad  out  of  Illinois,  without  first  hav- 
ing obtained  the  written  consent  of  all  the 
stockholders  of  the  lessor  road  residing  in 
the  state  of  Illinois,  shall  be  null  and  void, 
does  not  limit  the  scope  of  the  powers  con- 
ferred upon  the  corporation  by  law,  an  ex- 
ercise of  which  could  not  be  ratified  or  be 
made  good  by  estoppel,  but  only  prescribes 
regulations  as  to  the  manner  of  exercising 
corporate  powers,  compliance  with  which 
the  stockholders  may  waive,  or  the  corpora- 
tion might  be  estopped  by  lapse  of  time,  or 
otherwise,  to  deny.  St.  Louis,  V.  &*  T.  H. 
A'.  Co.  v.  Terre  Haute  &*  I.  A'.  Co.,  52  Am. 
&•  Eng.  R.  Cas.  68,  145  U.  S.  393,  12  Sup. 
Ct.  Rep.  953 ;  affirmi)ig  33  Fed.  Rep.  440. — 
Following  Pennsylvania  R.  Co.  v.  St. 
Louis,  A.  &  T.  H.  R.  Co.,  118  U.  S.  290. 

Without  enabling  legislation  a  railroad 
company  possesses  no  power  to  lease  its 
road  to  a  foreign  corporation,  and  surren- 
der its  road  and  franchises  into  its  control. 
Archer  v.  Terre  Haute  &*  I.  R.  Co.,  7  Am. 
&*  Ettg.  R.  Cas.  249,  102  ///.  493. 

Section  i,  ch.  71,  Minn.  Sp.  Laws  1871, 
does  not  consent  to  the  defendant  leas- 
ing its  road  unless  to  a  railroad  company  of 
this  state.  Sections  69,  106,  ch.  34,  Gen.  St. 
1878,  does  not  consent  to  any  lease  by  any 
railroad  company  of  this  state  of  its  road 
to  any  Iowa  railroad  company,  unless  tiie 
latter  has  complied  with  the  provisions  of 
section  ro6.  Freeman  v.  Minneapolis  &» 
St.  L.  R.  Co.,  7  Am.  &•  Eng  R.  Cas  410,  28 
Minn.  443,  10  N.  IV.  Rep.  594.— Followed 
IN  Pence  v.  St.  Paul,  M.  &  M.  R.  Co.,  28 
Minn.  488. 

The  supplement  to  the  charter  of  the 
Morris  Canal  &  Banking  Co.,  approved 
March  14,  1871  (Pamph.  L.  N.  J.  1871.  p. 
444),  which  authorized  the  company  "to 
lease  to  any  person  or  persons  or  corpora- 
tion," empowered  it  to  make  a  lease  to  a 
foreign  corporation  which  had  theretofore 
been  recognized  by  the  legislature,  and 
which  had  a  pre-existing  capacity  to  accept 
the  lease.  Stewart  v.  Lehigh  Valley  R. 
Co.,  38  A'.  /.  L.  505 ;  affirming  36  A'.  /.  L. 
259. 

The  act  of  March  17,  1870  (Laws  N.  J. 
1870,  p.  916),  does  not  authorize  a  lease  to 
b«  made  to  a  corporation  not  of  this  state. 


Black  V.  Delaware  &•  R.  Canal  Co.,  24  A''. 
/.  Eq.  455. 

A  railroad  company  of  New  Jersey  leased 
its  franchises  and  roads  to  a  railway  corpo- 
ration of  another  state.  The  lease  was  not 
only  unauthorized,  but  was  expressly  for- 
bidden by  law.  Its  effect  was  to  combine 
coal  producers  and  carriers,  and  to  partially 
destroy  competition  in  the  production  and 
sale  of  anthracite  coal,  a  staple  commodity 
of  the  state.  Held,  to  be  a  corporate  excess 
of  power  which  tends  to  monopoly  and  the 
public  injury.  Stockton  v.  Central  R.  Co., 
51  Am.  &•  Eng.  R.  Cas.  i,  50  A^.  /.  Eg.  52, 
24  Atl.  Rep.  964.— Quoting  Attorney-Gen- 
eral V.  Great  Northern  R.  Co.,  i  Drew.  & 
Sm.  157,  6  Jur.  N.  S.  1006,  29  L.  J.  Ch.  794; 
State  V.  Standard  Oil  Co.,  49  Ohio  St.  137, 
30  N.  E.  Rep.  279. 

Under  the  New  York  Statute  of  1839, 
which  authorizes  a  railroad  company  to 
agree  "  with  any  other  corporation  "  for  the 
use  of  its  road  "  in  any  manner  not  incon- 
sistent with  provisions  of  the  charter  of  the 
corporation  whose  railroad  is  to  be  used 
under  such  contract,"  a.railroad  corporation 
organized  under  the  laws  of  New  York  is 
empowered  to  lease  the  road  of  a  corpora- 
tion organized  and  constructed  in  Vermont, 
provided  such  latter  corporation  is  by  char- 
ter authorized  to  lease  its  road.  Day  v. 
Ogdensburg  &-  L.  C.  R.  Co.,  35  Am.  &•  Eng. 
R.  Cas.  102,  107  iV.  V.  129,  13  A'^.  E.  Rep. 
765,  II  A^.  K  S.  R.  335 ;  reversing  42  Hun 
654,  4  A^.   Y.  S.  R.  772. 

30.  Leases  ot'imrnllel  or  coiiipetiii;; 
Iiiie.<«. — A  contract  whereby  the  road-bed, 
rolling  stock,  and  equipments  of  one  com- 
peting line  of  railroad  is  to  be  operated  aiui 
controlled  by  another  competing  line  is 
made  illegal  by  Act  N.  H.,  July  5,  1867, 
which  forbids  tlie  consolidation  of  compet- 
ing railroads.  Manchester  &»  L.  R.  Co.  v. 
Concord  R.  Co.,  (N.  H.)  47  ^"t-  &^  E"g-  ■/''• 
Cas.  359. 

Under  New  York  Act  of  1839,  ch.  218, 
one  railroad  company  may  lease  its  fran- 
chise and  property  to  another,  provided  it 
is  to  be  used  by  the  lessee  for  the  same  pur- 
pose defined  in  the  charter  of  the  lessor, 
and  it  may  exercise  this  right  and  power 
unless  prohibited  by  the  charter  of  one  of 
the  companies,  dre  v.  A^etv  York  C.  &* 
H  A'.  R.  Co.,  19  AM.  A\  Cas.  (JV.  Y.)  193.- 
D1STINGUI.SHING  Abbott  7'.  Johnstown,  G. 
&  K.  H.  R.  Co.,  80  N.  Y.  28  ;  Troy  &  B.  U. 
Co.  7>.  Boston,  H.  T.  &  W.  R.  Co.,  86  N.  Y. 


LEASES,  ETC.,  31. 


215 


107.  Following  Fisher  v.  New  York  C. 
&  H.  R.  R.  Co..  46  N.  y.  644.  Quoting 
Woodruff  V.  Erie  .R.  Co.,  93  N.  Y.  609; 
Central  Crosstown  R.  Co.  v.  Twenty-third 
St.  R.  Co..  54  How.  Pr.  168. 

Where  the  legislature  has  authorized  the 
leasing  of  competing  or  parallel  roads,  the 
validity  of  such  lease  cannot  be  questioned 
by  tlie  courts  on  the  ground  of  public  policy. 
Gen-  V.  New  York  C.  &-  H.  K.  K.  Co.,  19 
Abb.  N.  Cas.  {N.  V.)  I93- 

New  York  Actof  1869,  ch.  917,  §9.  entitled 
".An  act  authorizing  the  consolidation  of 
certain  railroad  companies,  but  prohibiting 
tlie  consolidation  of  such  roads  as  are  par- 
allel or  competing,  does  not  prevent  one 
roiid  from  leasing  another,  as  a  lease  is  not 
a  merger  or  consolidation.  Gera  v.  New 
York  C.  &•  H.  R.  A\  Co.,  19  A66.  N.  Cas. 

(N.  y.)  I93- 

The  provision  of  Pennsylvania  Const. 
art.  17,  prohibiting  leases  of  parallel  or 
competing  railroads,  applies  only  to  ordinary 
railroads  and  not  to  passenger  or  street 
railroads.  Shipley  v.  Continental  R.  Co.,  13 
Phila.  (Pa.)  128.— Reviewed  in  Allentown 
&  B.  Rapid  Transit  Co..  i  Pa.  Dist.  430. 

3\.  Leases  for  purpose  of  foriiiiii{; 
contiiiiioiis  lines.  * — Under  an  amend- 
ment to  a  railroad  charier,  !)rovidingthat  the 
company  sliall  have  power  to  consolidate 
and  .connect  its  road  with  any  other  con- 
tinuous line  of  railroad,  either  in  Illinois  or 
in  Indiana,  upon  such  terms  as  may  be 
agreed  upon  between  the  companies  unit- 
ing or  connecting,  and  for  that  purpose 
giving  full  power  to  the  company  to  make 
and  execute  such  contracts  with  any  other 
company  as  will  secure  the  object  of  such 
consolidation  or  connection,  the  domestic 
cor|K)ration  can  do  only  one  of  two  things: 
eitiier  consolidate  its  road  with  another  • 
railroad  in  Illinois  or  Indiana,  or  make  an 
agreement  for  connection  with  such  road, 
so  as  to  secure  a  continuous  line.  Under 
such  law  it  lias  no  power  to  lease  its  road  to 
a  foreign  railroad  company.  Archer  v. 
Terre  Haute  Or*  J.  R.  Co.,  7  .Im.  <S«  /f/^'-.  R. 
Cas.  249,  102  ///.  493.— Distinguished  in 
St.  Louis,  V.  &  T.  H.  R.  Co.  v.  Terre  Haute 
&  I.  R.  Co.,  14s  U.  S.  393,  12  Sup.  Ct.  Rep. 
953- 

A  lease  by  an  Indiana  company  to  an  Ohio 


•Leasing  by  one  railroad  of  another  where  the 
two  form  a  continuous  line,  see  52  Am.  &  Eng.  R. 
Cas.  80,  abstr. 


company  for  the  purpose  of  forming  a  con- 
necting line  is  not  in  contravention  of  any 
statute  of  Indiana,  or  against  the  public  pol- 
icy of  that  state.  J'ittsburj:;,  C.  &^  St.  L. 
R.  Co.  v.  Columbus,  C.  (S-  /.  C.  R.  Co.,  8 
Biss.  {U.  S.)  456.— Reviewing  Tippecanoe 
County  Coinrs  v.  Lafayette,  M.  &  B.  R. 
Co.,  50  Ind.  85. 

Where  there  is  no  statute  regulating  the 
execution  of  such  a  lease,  it  is  not  essential 
that  its  original  execution,  or  a  subsequent 
ratification,  should  be  by  corporate  action 
within  the  stale.  Pittsburg,  C.  6-  St.  L. 
R.  Co.  v.  Columbus,  C.  &^  I.  C.  R.  Co.,  8 
fUss.  ( U.  S.)  456. 

Any  railway  company  organized  under 
the  laws  of  Kansas  may  lease  the  road  and 
appurtenances  of  any  other  railway  company, 
when  the  road  so  leased  shall  thereby  be- 
come, in  the  operation  thereof,  a  continua- 
tion and  extension  of  the  road  of  the  com- 
pany accepting  the  lease.  Atchison,  T.  &» 
S.  F.  R.  Co.  V.  Fletcher,  24  A/n.  &'  Ettg. 
R.  Cas.  34,  35  Art«.  236,  10  Pac.  Rep.  596. 

Under  its  charter,  and  the  statutes  of  the 
state,  the  Atchison,  Topeka  &  Santa  Fe  R. 
Co.  cannot  only  lease  a  Colorado  railroad, 
but  can  also  lease  roads  in  New  Mexico, 
Arizona,  and  old  Mexico,  if  each  road  so 
leased  thereby  becomes,  in  the  operation 
thereof,  a  continuation  and  extension  of  the 
road  of  the  Atchison  Co.  Atchison,  T.  &> 
S.  F.  R.  Co.  V.  Fletcher,  24  Am.  iS^*  Eng.  R. 
Cas.  34,  35  Kan.  236,  10  Pac.  Rep.  596. 

Kentucky  Act  of  Jan.  22, 1858,  authorizing 
leases  between  railroad  companies  when 
they  are  so  constructed  as  to  form  a  contin- 
uous line,  authorizes  a  company  to  take 
leases  of  branch  roads  by  which  it  can  es- 
tablish continuous  lines  from  the  termini 
of  such  branches  to  that  of  its  own  road. 
Hancock  v.  Louisville  <S-  N.  R.  Co.,  145  U. 
S.  409,  1 2  Sup.  Ct.  Rep.  969. 

Mass.  Act  of  1852,  ch.  118,  authorizing 
the  Boston  &  Maine  R.  Co.  and  the  Salem 
&  Lowell  R.  Co.,  each  of  them,  to  enter 
upon  and  use  the  railroad  of  the  other 
"  according  to  law,  provided  that  noth- 
ing contained  in  this  act  shall  be  con- 
strued to  impair  the  rights  of  any  person  or 
corporation,"  does  not  express  an  intention 
on  the  part  of  the  legislature  to  appropriate 
to  public  uses  anV  of  the  rights  of  the  Bos- 
ton &  Lowell  R.  Co.,  under  section  12  of 
their  charter,  and  confers  no  authority 
upon  the  Boston  &  Maine  R.  Co.  and  the 
Salem   &   Lowell  R.  Co.,  by    the    use   and 


816 


LEASES,  ETC.,   32-34. 


If! 


11!  I 


combination  of  sections  of  their  respective 
roads  with  a  portion  of  the  Lowell  &  Law- 
rence R.  Co.,  to  establish  a  continuous  line 
of  transportation  by  railroad  between  Bos- 
ton &  Lowell.  Boston  ^S^•  L.  R.  Corp.  v. 
Salem  &•  L.  K.  Co.,  2  (Jray  (Mass.)  i. 

Section  94,  cl).  16,  Neb.  Comp.  St.,  au- 
thorizes llie  leasing  of  a  railroad  constructed 
i)y  another  company  only  in  cases  where 
the  road  of  the  lessee  and  of  the  company 
making  the  lease  will  form  a  continuous  line. 
State  ex  rel.  v.  Atchison  &^  N.  R.  Co.,  32 
Am.  &-  Eng.  R.  Cas.  388,  24  Neb.  143.  38  A^. 
;/•.  Rep.  43- 

The  Atchison  &  Nebraska  R.,  extending 
from  Atchison,  Kan.,  to  Lincoln,  Neb.,  was 
completed  to  Lincoln  in  1S71,  and  leased  to 
ihe  B.  &  M.  R.  in  1880.  Held,  that  it  did 
not  form  a  continuous  line  with  the  B.  &  M. 
R.  and  was  not  within  the  provisions  of  the 
statute  authorizing  the  making  of  a  lease, 
and  that  such  lease  was  unauthorized.  The 
mention  in  the  statute  of  continuous  or  con- 
nected lines  excludes  all  others.  State  ex 
rel.  V.  j^itchison  &'  N.  R.  Co.,  32  Am.  &'  Eng. 
R.  Cas.  388,  24  Neb.  143.  38  ^V.  //'.  Rep.  43.— 
Quoting  Thomas  v.  West  Jersey  R.  Co., 
loi  U.  S.  71. 

The  union  of  the  Montreal  and  the  White 
Mountains  roads  formed  a  continuous  line, 
within  the  meaning  of  the  proviso  of  section 
17,  ch.  100,  Laws  N.  H.  1883.  That  sec- 
tion does  not  require  the  roads  of  lessor  and 
lessee  to  be  contiguous,  and  does  not  make 
the  state's  assent  to  a  lease  to  a  foreign  rail- 
road company  depend  upon  the  foreign 
corporate  power  of  the  lessee.  Boston,  C.  <S» 
M.  R.  Co.  v.  Bosto»  6-  L.  R.  Co.  51  Am.  &* 
En(r  .\  ' '  '.(>,  65  N.  H.  393,  23  Atl.  Rep. 
520. 

'■"I-  Virv*  ;iinter.sect, join, and 

II,'  •  !,««•  !■•>♦  jueiiidc  a  lease. — In- 
dian.* >  :  ••  3,  1853,  ch.  85,  author- 
izes ;iny  lanioa.;  ;  i-  ).i)anyof  Indiana  "to  in- 
tersect, join  and  unite  its  railroad  with  any 
other  railroad  "  constructed  in  an  adjoining 
state,  at  any  point  of  the  state  line,  or  else- 
where, to  which  the  charters  of  the  two 
Cdinpanies  authorized  their  roads  to  go, 
*  *  *  and  "  to  make  such  contracts  and 
agreements  with  any  such  railroad,  con- 
structed in  an  adjoining  state,  for  the  trans- 
portation of  freight  and  passengers  or  for 
the  use  of  its  said  road,  as  to  the  board  of 
directors  may  seem  proper."  Held,  that  to 
connect  one  road  with  another  does  not 
faiily   mean  to  lease  or  sell  it  to  another. 


St.  Louis,  V.  &*  T.  H.  R.  Co.  v.  Terre  Haute 
Of  I.  R.  Co.,  52  Am.  &•  Eng.  R.  Cas.  68,  145 
U.  S.  393,  12  Sup.  Ct.  Rep.  953  ;  affirmed  in 
33  Fed.  Rep.  440.— Followeu  in  Pennsyl- 
vania R.  Co.  V.  St.  Louis,  A.  &  T.  H.  R.Co,, 
118  U.  S.  290,  6  Su|).  Ct.  Rep.  1094. 

33.  Power  to  lease  on  hucIi  terms 
as  parties  "think  proper."— Under  a 
grant  from  the  legislature  to  the  Eastern 
railroad  in  New  Hampshire  to  lease  the 
right  to  use  their  railroad  "  to  such  person 
or  corporation,  and  upon  such  terms  as 
they  may  deem  proper,"  a  lease  of  the 
right  to  use  said  road  was  executed  to  the 
Eastern  R.  Co.,  a  corporation  chartered  in 
Massachusetts,  which  lease  contained  cer- 
tain stipulations  in  relation  to  the  payments 
of  rents  and  the  performance  of  other  things 
therein  specified  to  be  done  and  performed 
by  both  said  parties.  Held,  that  although 
originally  the  parties  to  the  lease  might  have 
fixed  upon  any  terms  and  conditions  they 
pleased,  yet,  having  fixed  and  agreed  upon 
certain  terms  and  conditions  by  the  assent 
of  all  the  stockholders,  the  directors  of  both 
roads  are  bound,  as  are  the  majority  of  the 
stockholders,  in  both,  to  conduct  and  ad- 
minister said  roads  accordingly,  and  their 
liability  to  the  stockholders  of  each  road  is 
just  the  same  as  though  they  had  been 
united  by  act  of  the  legislature  upon  the 
same  terms  and  conditions  as  those  con- 
tained in  the  lease.  March  v.  Eastern  R. 
Co.,  43  N.  H.  515.— Distinguished  in 
Nashua  &  L.  R.  Co,  v.  Boston  &  L.  R.  Co., 
27  Fed.  Rep.  821. 

The  provisions  of  the  lease  between  the 
Eastern  railroad  in  New  Hampshire  and 
the  Eastern  railroad  in  Massachusetts  do 
not  provide  for  a  union  of  interests  or  of  cap- 
itals between  said  roads,  or  an  equality  of 
dividends  between  the  stockholders  of  said 
corporations.  March  v.  Eastern  R.  Co.,  43 
N.H.  515. 

34.  Ki{;lits  of  parties  under  for- 
feited or  expired  leases.— A  party  built 
a  hotel  on  the  grounds  of  a  railroad  company 
under  a  contract  to  pay  annually  a  fixed 
sum  as  ground  rent.  Some  years  afterwards, 
by  agreement,  the  property  was  to  be  sur- 
rendered to  the  company  upon  payment  of 
its  value.  An  award  fixed  the  value  of  the 
property,  which  was  confirmed  by  the  high- 
est court  of  the  state,  which  decreed  it  a 
lien  on  the  property.  After  considerable 
time  the  company  claimed  a  credit  on  the 
judgment  for  rents  of  the  premises  since  the 


:s ; ! 


^WTTfy-T^ 


LEASES,  ETC.,  35-37. 


agreement  to  surrender.  NM,  that  the 
coinoany  was  entitled  to  such  credit,  whether 
the  one  in  possession  be  considered  a  tenant 
or  mortgagee  in  possession.  Scruggs  v. 
Memphis  (S-  C.  li.  Co.,  io8  U.  S.  368,  2 
Sup.  a.  Rep.  780. 

Where  a  company  only  acquires  the  use 
of  land  for  railroad  purposes,  and  lays  a 
track  thereon,  and  subsequently  leases  the 
land,  only  reserving  the  right  to  use  the 
track,  and  the  lessee  fences  up  the  land  and 
uses  it  as  a  private  coal  yard,  the  company, 
by  making  the  lease,  forfeits  its  right  and 
interest  therein,  and  the  owner  of  the  fee  is 
entitled  to  recover  the  same.  Roby  v.  Yaics, 
53  N.  Y.  S.  R.  535,  23  iV.  V.  Supp.  iioS,  70 
Hun  35. 

The  defendant  leased  from  the  plaintiff 
the  "  refreshment  room  and  apartments 
connected  therewith,"  part  of  a  railway  sta- 
tion, and  covenanted  that  "  no  spirits  of  any 
kind  should  be  sold  or  allowed  to  be  sold 
in  the  refreshment  room,"  and  that  if  he 
"should  fail,  refuse,  or  neglect  to  carry  out 
the  terms  of  the  lease,  then  that  the  lessee 
should,  if  required  by  the  lessor,  quit,  leave, 
and  absolutely  vacate  tlie  premises  and  the 
lease  should  terminate."  Held,  that  the 
sale  of  spirits  in  the  bar  room,  part  of  the 
demised  premises,  was  a  contravention  of 
the  lease  ;  that  the  proviso  for  termination 
of  the  same  extended  to  negative  covenants ; 
and  that  the  lease  was  therefore  forfeited, 
and  a  right  of  entry  accrued  to  the  lessor, 
and  that  it  was  a  case  coming  within  the 
Overholding  Tenant's  Act.  Longhiv.  San- 
son, 46  U.  C.  Q.  B.  446. 

35.  Peiiiiisylvaiiin  acts  of  1861 
and  1870,  aiitlioriziiifr  leases,  coii- 
struert.— The  Pa.  Act  of  April  23,  1861, 
relating  to  connecting  lines,  authorizes  a 
contract  by  which  one  company  acquires 
che  right  to  carry  coal  over  the  road  of 
another  in  the  cars  of  the  former.  Mocan- 
aqtia  Coal  Co.  v.  Northern  C.  R.  Co.,  4  Brews. 
{Pa.)  158. 

The  Pa.  Act  of  April  23, 1861,  authorizing 
one  railroad  company  to  lease  the  road  of 
another  "  and  to  run,  use,  and  operate"  the 
same,  and  the  act  of  Feb.  17,  1870,  extend- 
ing the  law  to  roads  beyond  the  limits  of 
the  state,  authorize  only  leases  of  finished 
roads.  Pittsburgh  <S-  C.  R.  Co.  v.  Bedford 
^  B.  R.  Co.,  81*  Ba.  St.  104. 

The  act  of  February  17.  1870  (P.  L.  8r), 
giving  to  railroad  companies  the  right  to 
lease  their  property  and  franchises,  applies 


to  street  passenger-railway  companies  as 
well  as  to  steam  railroad  companies.  Ra/- 
ferty  v.  Central  Traction  Co.,  50  Am,  &* 
Eng.  R.  Cas.  239,  147  Pa,  St.  579,  23  All, 
Rep.  884. 

The  Philadelphia  &  Erie  R.  Co.  leased 
to  the  Catawissa  R.  Co.  a  portion  of  their 
road,  with  the  proviso  that  if  "  In  case  of  an 
assignment  for  the  benefit  of  creditors  by 
the  Catawissa  Co.,  a  judicial  sale  or  transfer 
of  a  road  shall  at  any  time  take  place,"  the 
lease  should  be  void,  without  any  act  of  the 
Philadelphia  &  Erie  Co.;  the  Catawissa  Co. 
leased  to  another  company  "  the  whole  of 
(their)  railroad,  etc.,  *  *  ♦  with  the  appurte- 
nances of  every  nature  whatever."  Held. 
that  the  lease  of  the  Philadelphia  &  Erie 
Co.'s  road  passed.  The  lease  of  the  Cata- 
wissa Co.'s  road  was  not  "  an  assignment  for 
the  benefit  of  creditors,  judicial  sale,  or 
transfer,"  and  was  not  forbidden  by  the 
agreement  with  the  Philadelphia  &  Erie  Co. 
Philadelphia  &•  E.  R.  Co.  v.  Catawissa  R, 
Co.,  S3  Pa.  St.  20. 

The  act  of  April  23,  1861,  authorizing  the 
leasing  of  railroads,  applies  to  the  appurte- 
nances as  well  as  the  road  itself,  and  made 
the  lease  to  the  Catawissa  Co.  assignable 
without  the  consent  of  the  Philadelphia  & 
Erie  Co.  Philadelphia  6-  E.  R.  Co.  v.  Cat- 
awissa R.  Co.,  53  Pa.  St.  20. 

36.  Agreeiiieiit  to  lease  before  in- 
corporating.— An  agreement  entered  into 
by  the  provisional  committee  of  a  contem- 
plated railway  company  to  lease  the  line — 
held,  not  binding  upon  the  company  after- 
wards incorporated  by  act  of  parliament. 
Monklands  R.  Co.  v.  Glasgow,  A.  &^  M.  J. 
R.  Co.,  II  Scotch  Se^s.  Cas.  2d  Ser.  1395,  2 
Ry.&'C.  T.  Cas.  15. 

37.  Power  of  company  to  lease 
its  dock. — A  railroad  corporation,  under 
the  laws  of  Florida,  has  the  right  to  erect 
and  maintain  docks,  wharves,  and  piers,  as 
incident  to  its  business,  and  to  hold  or  dis- 
pose of  them  as  may  be  deemed  proper,  but 
such  corporation  engaged  in  the  business  of 
a  common  carrier  has  no  right  to  lease  the 
terminal  point  of  its  railroad  track  and 
terminal  facility  on  a  navigable  stream  to  a 
steamboat  company,  and  thereby  defeat  the 
ingress  and  egress  to  and  from  said  railroad 
track  on  the  part  of  other  competing  lines 
of  steamboat  companies.  Indian  River 
Steamboat  Co.  v.  East  Coast  Transp.  Co.,  49 
Am.  &>  Eng.  R.  Cas.  212,  28  Fla.  387,  10 
So.  Rep.  480. 


I 


r* 


818 


LEASES,  ETC.,  38,30. 


38.  Power  to  lease  determined  lu 
particiilur  cases.— Under  the  provisions 
of  tiie  charter  by  Georgia  of  the  Macon  & 
Western  R.  Co.,  that  company  had  tlie  le- 
gal power  and  authority  to  lease  its  road  to 
the  Central  Railroad  &  Hanking  Co.  of 
Georgia,  and  the  latter  company  had  legal 
power  and  authority,  under  the  Georgia  Act 
of  1852,  to  accept  such  lease.  Central  R.Sr^ 
B.  Co.  V.  Macon,  43  Ga.  605. 

A  lease  by  the  Newport  &  Fall  River  R. 
Co.,  a  corporation  established  under  the 
laws  of  Rhode  Island,  to  the  Old  Colony  & 
Fall  River  R.  Co.,  a  corporation  established 
under  the  laws  of  Massachusetts,  of  the  un- 
finished railroad  of  the  former  corporation, 
situated  in  Rhode  Island,  for  a  term  of 
years,  at  an  annual  rent,  after  the  same  shall 
have  been  completed,  with  a  stipulation  for 
the  payment  in  advance  of  the  rent  for  the 
whole  term,  to  be  used  for  the  purpose  of 
building  the  road  and  putting  it  in  order  for 
use,  is  not  a  violation  of  Mass.  Act  of  1861, 
ch.  156,  which  authorizes  the  latter  corpo- 
ration to  extend  its  railroad  to  the  line  of 
Rhode  Island,  to  connect  with  a  railroad  to 
be  constructed  from  Newport,  Rhode  Is- 
land, to  the  line  of  M.assachusetts,  and  pro- 
.A^ides  that  no  part  of  its  present  reserved 
funds  shall  be  appropriated  to  build  any 
portion  of  the  road  in  Rhode  Island.  Ditr- 
fee  V.  Old  Colony  &>  F.  R.  R.  Co.,  5  Allen 
(Mass.)  230. — Applied  in  Farmers'  L.  &  T. 
Co.  V.  Toledo  &  S.  H.  R.  Co.,  54  Fed.  Rep. 
759,  6  U.  S.  App.  469,  4  C.  C.  A.  561. 

Two  railroad  companies  entered  into  an 
agreement  by  which  one  was  to  furnish  the 
road,  and  the  other  the  rolling  stock  and 
motive  power,  and  operate  the  road  for  the 
mutual  benefit  of  both,  "  and  that  uniform 
rates  of  tolls  and  fares  should  be  fixed  an- 
nually by  agreement,  and  the  latter  com- 
pany to  pay  the  former  two  thirds  of  the 
receipts,  *  *  *  such  additional  charges  by 
way  of  discrimination  thereby  made  for 
short  distances,  for  motive  power,  not  to  be 
included  in  the  term  receipts."  //eld,  that 
the  tolls  and  fares  were  to  be  uniform,  as 
distinguished  from  fluctuating  rates,  but  not 
necessarily  uniform  as  proportioned  to 
distance.  Blossburg  &*  C.  R.  Co.  v.  T/oga 
R.  Co.,  I  Abb.  App.  Dec.  {N.  Y.)  149,  i  Keyes 
486. 

In  such  case,  the  discriminative  charges 
provided  for  only  included  such  as  might 
be  imposed  for  motive  power  for  short  dis- 
tances, and  in  addition  to  the  discriminative 


charges  in  the  table  of  uniform  rates.  Bloss- 
burg &^  C.  R.  Co.  V.  /Yoga  A'.  Co.,  i  Abb. 
App.  Dec.  {N,  Y.)  149,  i  /<eyes  4S6. 

3.  Rights  and  Liabilities  of  Lessors. 

39.  Liability  after  lease.*— The  lease 
of  a  railroad  does  not  dissolve  the  corpora- 
tion, and  it  may  still  be  sued  for  liabilities 
incurred  prior  to  such  lease.  United  States 
V.  Little  Miami,  C.  &^  X.  /i.  Co.,  1  Fed.  Rep. 
700. 

A  railroad  company  cannot  transfer  or 
lease  the  right  to  operate  its  road  so  as  to 
absolve  itself  from  its  duties  to  the  public, 
without  legislative  authority;  nor  will  a 
lease  duly  authorized  by  law  release  the 
company  from  a  failure  to  discharge  its 
charter  obligations,  unless  the  law  giving 
the  power  contains  a  proviso  to  this  efTect. 
Central  &*  M.  Tv'.  Co.  v.  A/orris,  28  Am.  &' 
Eng.  R.  Cas.  50,  68  Tex.  49,  3  S.  W.  Rep. 
457.— FoLLOWKU  IN  International  &  G.  N. 
R.  Co.  V.  Eckford,  71  Te.x.  274,  8  S.  W.  Rep. 
679.—  IV/iitney  v.  Atlantic  &-  St.  L.  R.  Co., 
44  Me.  362.— Disapproved  in  Illinois  C. 
R.  Co.  7A  Kanouse,  39  111.  272.  Reviewi.d 
IN  Mahoney  v.  Atlantic  &  St.  L.  R.  Co..  63 
Me.  68. — Attorney-  General  v.  Erie  &•  A'.  A'. 
Co.,  16  Atn.  (S-  Eng.  R.  Cas.  652,  55  A/iclt. 
15,  20  Al.  IV.  Rep.  696.  /hickus  v.  /Detroit, 
W.  T.  &-J.  R.  Co.,  36  Am.  &•  Eng.  R.  Cas. 
436,  71  Mich.  645,  40  A'.  IV.  Rep.  60.  In- 
ternational &*  G.  N.  A'.  Co.  V.  Eckford,  71 
Tex.  274,  8  5.  IV.  /\ep.  679  —  Following 
Central  &  M.  R.  Co.  v.  Morris.  68  Tex.  59. 
— Followed  in  East  Line  &  R.  R.  R.  Co. 
V.  T.ee,  71  Tex.  538,  9  S.  W.  Rep.  604. 

Where  a  company  constructs  its  track, 
and  in  such  construction  omits  to  make 
sufficient  cattle-guards  where  the  track  en- 
ters and  leaves  an  unfenced  field,  the  com- 
pany is  liable  to  the  owner  of  the  field  for 
damage  resulting  therefrom,  and  this  lia- 
bility is  not  avoided  by  the  fact  that 
after  constructing  its  road  the  company 
leased  the  same  to  another  company,  which 
latter  company  was  in  full  possession  and 
use  of  the  track  at  the  time  of  the  hap- 
pening of  the  injuries,  and  by  the  terms  of 
its  lease  had  contracted  to  discharge  ;ill 
statutory  obligations  and  duties  imposed 
upon  the  lessor  company.  St.  Louis.  W. 
&•  W.  R.  Co.  V.  Curl,  1 1  Am.  &-  Eng.  R. 
Cas.  458,  28  A'rtw.  622. 

*  Liability  of  company  leasing  its  road  to  an- 
other, see  notes,  36  Am.  &  Eng.  R.  Cas.  445,  7  /''• 
413. 


•■■■■'    ■■)■  ■.:i    -..ijh* 


LEASES,  ETC.,  40,  41. 


219 


40.  Liability  for  acts  or  ne^rligeiico 

of  lessee!*.*— If  a  railroad  company,  with- 
out legislative  authority,  executes  a  lease  of 
its  railroad,  it  is  not  thereby  released  from 
liability  for  damages  caused  by  the  negli- 
gence of  the  lessee  company  in  operating  it. 
Briscoe  v.  Southern  Kan.  A'.  Co.,  40  Am.  &* 
Eng.  /i'.  Cas.  599,  40  Fed.  Rep.  273.— Ap- 
proved IN  Arrowsmith  v.  Nashville  &  D. 
R.  Co.,  57  Fed.  Rep.  165. — Arrowsmith  v. 
Nashville  iS-  D.  R.  Co.,  57  Fed.  Rep.  165. 
Rome  &*  D.  R.  Co.  v.  Chasteen,  40  Am.  &> 
Eng.  R.  Cas.  559,  88  Ala.  591,  7  So.  Rep.  94. 
—Distinguished  in  Arrowsmith  v.  Nash- 
ville &  D.  R.  Co.,  57  Fed.  Rep.  16$.  — Nelson 
V.  Vermont  <S-  C.  R.  Co.,  26  F/.  717.— Ap- 
proved IN  Illinois  C.  R.  Co.  v.  Barrow,  5 
Willi.  (U.  S.)  90.  Distinguished  in  Ar- 
rowsmith V.  Nashville  &  D.  R.  Co.,  57  Fed. 
Rep.  165.  Followed  in  Abbott  v.  Johns- 
town, G.  &  K.  Horse  R.  Co.,  2  Am.  &  Eng. 
R.  Cas.  541,  80  N.  Y.  27,  36  Am.  Rep.  572. 
Quoted  in  McCoy  v.  Kansas  City,  St.  J. 
&  C.  B.  R.  Co.,  36  Mo.  App.  445.  Reviewed 
in  East  Line  &  R.  R.  R.  Co.  v.  Culberson, 
38  Am.  &  Eng.  R.  Cas.  225,  72  Tex.  375,  3 
L.  R.  A.  567,  10  S.  W.  Rep.  706. 

A  company  which  has  leased  its  road, 
ears,  and  engines,  and  allows  the  lessee  com- 
pany to  operate  the  same  in  the  name  of 
the  lessor,  is  liable  to  third  persons,  or  the 
public,  for  the  carelessness  and  negligence 
bl  the  lessee  in  the  absence  of  a  statutory 
provision  to  the  contrary.  Singleton  v. 
Southwestern  R.  Co.,  21  Am  &>•  Eng.  R.  Cas. 
226,  70  Ga.  464,  48  Am.  Rep.  574.  —DIS- 
TINGUISHING Jones  V.  Georgia  Southern  R. 
C».,  66  Ga.  558.  Quoting  Ohio  &  M.  R. 
C».  7>.  Dunbar,  20  111.  627.  —  DiSAPPRf)VED 
IN  Arrowsmith  v.  Nashville  &  D.  R.  Co.,  57 
Fed.  Rap.  165.  Quoted  in  Balsley  v.  St. 
LoBis,  A.  &  T.  H.  R.  Co.,  25  Am.  &  Eng. 
R.  Cas.  497,  119  111.  68.  —Brojt/n  v.  Hanui- 
bAl  S^  St.  J.  R.  Co.,  27  Mo.  App.  394.— 
Applying  Main  v.  Hannibal  &  St.  J.  R. 
C«.).,  18  Mo.  App.  iZ'&.— Abbott  v.  Johns- 
town.  G.  i5-  A'.  Horse  A'.  Co.,  2  Am.  G-*  Eng. 
R.  Cits.  541,  80  A'^.  V.  27,  36  Am.  Rep.  572. 
— DisiiNGUiSHED  in  Woodruff  7/.  Erie  R. 
Co.,  i6  Am.  &  Eng.  R.  Cas.  501,  93  N.  Y. 
609;  Gere  v.  New  York  C.  &  H.  R.  R.  Co., 
19  Abb.  N.  Cas.  (N.  Y.)  193.  Followed 
^N  Troy  &  B.  R.  Co.  v.  Boston,  H.  T.  &  W. 
R.  Co.,  7  Am.  &  Eng.  R.  Cas.  49.  86  N.  Y. 

*  Liability  of  lessor  for  negligence  of  lessee, 
see  notes.  38  Am.  &  Eng.  R.  Ca^s.  62,  48  Am. 
Rkp.  5S0,  10  L.  R.  A.  794. 


107.  Quoted  in  Lakin  v.  Willamette  Val- 
ley &  C.  R.  Co..  26  Am.  &  Eng.  R.  Cas.  611, 
I3  0reg.  436,  57  Am.  Rep.  25. —  Woonhoiise 
v.  Rio  Grande  R.  Co.,  67  Tex.  416.  3  .S'.  IV. 
Rep.  323.  Ricketts  v.  Chesapeake  &*  O.  R. 
Co.,  41  Am.  &*  Eng.  R.  Cas.  42.  33  H\  Va. 
433,  7  L.  R.  A.  354,  10  S.  E.  Rep.  801. 

In  Iowa  a  railroad  corporation  cannot 
escape  liability  for  an  accident  occurring 
while  its  road  is  being  operated  in  the  cor- 
porate name,  even  though,  in  fact,  it  may 
have  been  leased,  and  was  at  the  time  con- 
trolled by  another  party.  Sections  1278  and 
1307.  making  lessees  liable  to  the  same  ex- 
tent as  the  corporations  themselves,  provide 
merely  a  cumulative  remedy,  and  do  not  re- 
lease the  corporations.  Bower  v.  Burling- 
ton &-  S.  IV.  R,  Co.,  42  /o7v,i  546. 

In  Kentucky  a  company  owning  a  road 
which  is  leased  and  in  the  exclusive  control 
of  the  lessees  is  not  liable  for  any  injury 
caused  by  the  negligent  management  of  the 
road.  Harper  v.  Newport  Nevjs  &■*  M.  V. 
R.  Co.,  (Ay.)  14  5.  iV.  Rep.  346. 

41.  Liiil>ility  for  tort.s  of  lessees.*— 
A  railway  company  cannot  absolve  itself 
from  the  performance  of  duties  imposed 
upon  it  by  its  charter  or  any  general  law  of 
the  state,  or  relieve  itself  from  liability  for 
the  wrongful  acts  or  omissions  of  duty  of  per- 
sons operating  its  road  by  transferring  its 
corporate  powers  to  other  parties,  or  by 
leasing  its  road  to  them,  except  by  special 
statutory  authority.  To  allow  it  to  do  so 
would  be  contrary  to  public  policy.  Balsley 
V.  St.  Louis,  A.  &^  T.  H.  R.  Co.,  25  Am.  &* 
Etig.  R.  Cas.  497,  119  ///.  68.  8  N.  E.  Rep. 
859— Quoting  Washington,  A.  &  G.  R. 
Co.  V.  Brown,  17  Wall.  (U.  S.)  450;  Ohio  & 
M.  R.  Co.  V.  Dunbar.  20  111.  623;  Singleton 
V.  Southwestern  R.  Co..  70  Ga.  464 ;  Thomas 
V.  West  Jersey  R.  Co..  loi  U.  S.  83.— Re- 
viewed IN  East  Line&  R.  R.  R.  Co.  v.  Cul- 
berson. 38  Am.  &  Eng.  R.  Cas.  225.  72  Tex. 
375.  3  L.  R.  A.  567,  10  S.  W.  Rep.  706. — 
Lakin  v.  Willamette  Valley  &*  C.  R.  Co.,  26 
Am.  <5-  Eng.  R.  Cas.  611.  13  Oreg.  436,  11 
Pac.  Rep.  68.  57  Am.  Rep.  25.— Quoting 
Abbott  V.  Johnstown,  G.&  K.  Horse  R.  Co., 
80  N.  Y.  27. — Quoted  in  Cogswell  v.  West 
St.  &  N.  E.  Elect.  R.Co..  5  Wash.  i,(i.— In- 
ternational &^  G.  N.  R.  Co.  V.  Underwood,  34 
Am.  &*  Eng.  R.  Cas.  570,  67  Tex.  589,  4  S. 
PV.  Rep.  216.— Following  Gulf.  C.  &  S.  F. 

*  Liability  of  railroads  for  torts  as  affected  l)y 
lease  of  the  road,  see  notes,  52  Am.  &  Eng.  R. 
Cas.  (X) ;   25  Id.  501  ;   71  Am.  Dec  295, 


I 
i 

§ 


ri 


no 


LEASES,  ETC.,  42,  43. 


-I 


R.  Co.  V.  Morris,  67  Tex.  692.  Rkvikwino 
Missouri  Fac.  R.  Co.  7>.  Watts,  63  Te.x.  549. 
—Co^^siof//  V.  Wfsi  S/.  ^iV.  K  Eke.  A\  Co., 
52  A//I.  &^  Eug,  A'.  Ciis.  500,  5  ll'as/i.  46,  31 
Pac.  Rep.  411.— Quoting  Luiiin  v.  Wiila- 
mctte  Valley  &  C.  R.  Co.,  13  Oreg.  436,  11 
Pac.  Rep.  68. 

Under  the  Illinois  statute  railroad  com- 
panies are  liable  for  injuries  by  the  wrong- 
ful acts  of  any  lessee,  contractor,  or  other 
person,  done  in  the  exercise,  by  its  permis- 
sion, of  any  of  its  franchises;  but  this  lia- 
bility is  limited  to  such  acts  as  the  lessor 
company  would  have  a  right  to  perform  un- 
der its  charter,  and  for  which  it  would  be 
liable.  St  Louis,  A.  &•  T.  H.  A'.  Co.  v.  /ia/s- 
ley,  \%ni.  App.  79. 

In  such  cases  the  lessee  is  regarded  as 
the  servant  or  agent  of  the  lessor,  so  far  as 
the  public  is  concerned.  St.  Louis,  A.  &*  T. 
H.  R.  Co.  V.  Balsley,  18  ///.  App.  79. 

The  lessor  of  a  railroad  under  an  author- 
ized lease  is  not  liable  for  the  negligence  or 
torts  of  its  lessee.  Miller  v.  Nexv  York,  L, 
6-  W.  R.  Co.,  47  Am.  6-  Eng.  R.  Cas. 
369,  125  N.  V.  118,  26  N.  E.  Rep.  35,  34  A^. 
Y.  S.  R.  607.— Approved  in  Arrowsmith 
V.  Nashville  &  D.  R.  Co.,  57  Fed.  Rep.  165. 

42.  Liability  for  personal  injuries, 
generally.*— In  case  of  the  lease  of  a  rail- 
road track  a  distinction  exists,  as  to  the 
liability  of  the  lessor  and  lessee  company, 
between  those  cases  in  which  a  liability 
arises  from  the  omission  of  some  duty  in 
the  construction  of  the  road,  and  those 
which  arise  from  negligence  or  the  omis- 
sion of  some  duty  in  the  handling  of  trains 
and  the  management  of  the  road.  St. 
Louis,  W.  <S-  W.  R.  Co.  v.  Curl,  \  i  Am.  &* 
Eng.  R.  Cas.  458,  28  Kan.  622. 

A  railroad  company  which  leases  its  road 
pursuant  to  a  statutory  authority  which 
does  not  contain  any  provision  releasing  it 
from  the  performance  of  its  duties  to  the 
public,  is  liable  for  personal  injuries  sus- 
tained by  the  brakeman  of  a  third  company 
rightfully  upon  the  road,  caused  by  a  defect 
in  the  construction  of  the  awning  of  a  sta- 
tion. Nugent  V.  Boston,  C.  <S-  M.  R.  Co.,  38 
Am.  <S-»  Eng.  R.  Cas.  52,  80  Me.  62,  12  Atl. 
Rep.  797.— Distinguishing  Mahoney  v. 
Atlantic  &  St.  L.  R.  Co.,  63  Me.  68.  Not 
FOLLOWING  Pretty  v.  Bickmore,  L.  R.  8  C. 
P.   401  ;  Gwinnell  v.  Eamer,  L.    R.    10  C. 

•  Liability  of  lessor  for  negligence  of  lessee 
causing  injury  to  servants,  see  note,  38  Am. 
&  Eng.  R.  Cas.  62. 


P.  658 ;  Leonard  v.  Storer,  1 1 5  Mass.  86. — 
Approved  in  Arrowsmith  v.  Nashville  «i 
D.  R.  C0..57  Fed.  Rep.  165. 

Under  Mo.  Act  of  March  24,  1870,  where 
a  corporation  of  the  state  leases  its  road  to 
a  corporation  of  another  state,  both  are 
made  liable  for  any  violation  of  the  laws  of 
the  state.  HiU,  tliat  the  Atlantic  &  Pacific 
R.  Co.,  chartered  by  act  of  congress,  is  a 
corpc^ration  "  of  another  state  "  within  the 
meaning  of  the  statute;  and  therefore  the 
Missouri  Pacific  R.  Co.,  after  loading  to 
the  other  road,  might  be  sued  for  personal 
injuries  to  employes  of  the  former  road. 
Smith  V.  Pacific  R.  Co.,  61  Mo.  17. 

Where  a  railroad  company  has,  by  legis- 
lative authority,  leased  its  road  and  trans- 
ferred the  exclusive  possession  and  control 
thereof  to  another  company,  it  cannot  be 
held  liable  for  injuries  thereon  sustained  by 
a  servant  of  the  lessee  through  the  lessee's 
negligence.  Virginia  Midland  R.  Co.  v. 
Washington,  43  Am.  &>  Eng.  R.  Cas.  688, 
86  Va.  629,  10  S.  E.  Rep.  927. — Approved 
IN  Arrowsmith  v.  Nashville  &  D.  R.  Co., 
57  Fed.  Rep.  165. 

43.  Liability  for  personal  injuries 
to  passengers.— A  company  owning  a 
railroad  is  not  relieved  of  liability  for  inju- 
ries to  a  passenger  by  the  fact  that  the  road 
is  leased  and  being  operated  by  the  lessee. 
Washington,  A.  &*  G.  R.  Co.  v.  Brown,  17 
Wall.  {U.  S.)  445.  3  Am.  Ry.  Rep.  413.— 
Distinguished  in  Arrowsmith  v.  Nash- 
ville &  D.  R.  Co.,  57  Fed.  Rep.  165.  Fol- 
lowed IN  Abbott  V.  Johnstown,  G.  &  K. 
Horse  R.  Co.,  2  Am.  &  Eng.  R.Cas.  541 ,  80  N. 
Y.  27,  36  Am.  Rep.  572.  Quoted  in 
Balsley  v.  St.  Louis,  A.  &  T.  H.  R.  Co.,  25 
Am.  &  Eng.  R.  Cas.  497,  119  III.  68;  Naglee 
V.  Alexandria  &  F.  R.  Co.,  32  Am.  &  Eng. 
R.  Cas.  401,  83  Va.  707 ;  Ricketts  v.  Chesa- 
peake &  O.  R.  Co.,  41  Am.  &  Eng.  R.  Cas. 
42,  33  W.  Va.  433,  7  L.  R.  A.  354,  10  S.  E. 
Rep.  801.  Reconciled  in  Fisher  v.  Met- 
ropolitan El.  R.  Co.,  34  Hun  (N.  Y.)  433. 
Reviewed  in  Harmon  v.  Columbia  &  G. 
R.  Co.,  28  So.  Car.  401,  13  Am.  St.  Rep. 
686,  5  S.  E.  Rep.  835;  East  Line&  R.  R.  K. 
Co.  z/. Culberson,  38  Am.&  Eng.  R.Cas.  225, 
72  Tex.  375,  3  L.  R.  A.  567,  10  S.  W.  Rep. 
706. — Quested  v.  Newbtiryport  i&*  A.  Horse 
R.  Co.,  127  Mass.  204.  —  Distinguished 
m  Arrowsmith  v.  Nashville  &  D.  R.  Co., 
57  Fed.  Rep.  165.  Reviewed  in  Braslin 
V.  Somerville  Horse  R.  Co.,  32  Am.  <S: 
Eng.   R.  Cas  406,  145  Mass.  64,  4  N.   Ewg. 


LEASES,  ETC.,  44-48. 


221 


Rep.  888,  13  N.  E.  Rep.  6s.—/iriisUn  v. 
.s',)Wt7i'/'/A'  //orsf  A'.  Co.,  32  Ami.  &»  Kii^.  A'. 
I'.rv.  406,  US  Mass.  64.  4  N.  En^.  A'</,  888, 
\\  \.  E.  Rfp.  65.— Not  foi.i.owinc.  Mii- 
liDiu'V  V.  Atlantic  &  St,  L.  K.  Co,,  63  Me. 
68;  Murch  V.  Concord  K.  Corp..  29  N.  H. 
I.  Rkvii'.wing  Quested  v.  Newburyport 
Ilnrso  R.  Co.,  127  Mass.  204. 

Where  a  road  is  leased  by  authority  of 
law,  under  a  lease  K'V'"y  the  lessee  coin- 
puny  exclusive  charge  of  the  road,  and 
niakinu;  it  exclusively  liable  for  accidents, 
the  lessor  is  not  liable  for  the  neglijjence 
of  the  employes  of  the  lessee  in  injuring 
a  passenger  by  starting  a  train  when  he  is 
about  to  get  on.  Phillips  v.  S'ortltern  R. 
Co..  41  A'.  J'.  S.  R.  780,  16  N.  V.  Siipp.  909. 

44.  Liability  for  personal  iiiJiirivH 
at  eroHNliiffS.— Where  a  railroad  corpora- 
tion, without  the  state's  consent,  leased  its 
road  to  another  railroad  corporation,  which 
entered  upon  and  controlled  and  managed 
the  road,  the  former  corporation  is  liable 
for  injuries  to  persons  caused  by  negligent 
defects  in  its  track  at  a  highway  crossing. 
Freeman  v.  Minneapolis  &•  St.  L.  R.  Co.,  7 
Am.  dr*  Eng.  R.  Cas.  410,  28  Minn.  443,  10 
X.  \V.  h'ip.  594.  —  Rkvikwki)  in  McCoy 
7'.  Kansas  City,  St.  J.  &  C.  B.  R.  Co.,  36 
Mo.  App.  445;  East  Line  &  R.  R.  R.  Co. 
V.  Culberson,  38  Am.  &  Eng.  R.  Cas.  225,  72 
Tex.  375.  3  L.  R.  A.  567.  10  S.  W.  Rep.  706. 

A  railroad  corporation  which  has  parted 
wit!)  the  possession  and  control  of  its  road 
under  a  lease  thereof  to  another  corpora- 
tion, containing  a  covenant  that  the  lessee 
shall  keep  up  the  fences,  is  not  liable  to  one 
traveling  upon  a  highway  for  damages  re- 
sulting from  an  omission  of  the  lessee  to  re- 
pair a  fence  which  was  in  good  order  at  the 
time  of  the  lease  and  surrender  of  posses- 
sion. Ditchett  V.  Spuytcn  Duyvil  &*  P.  M. 
R.  Co.,  67  A'.  Y.  425,  15  Am.  Ry.  Rep.  109; 
reversing  I  Hun  165.— Approved  in  Arrow- 
smith  V.  Nashville  &  D.  R.  Co.,  57  Fed. 
Rep.  165.  Distinguished  in  Dolan  v. 
Newburgh.  D.  &  C.  R.  Co.,  42  Am.  &  Eng. 
R.  Cas.  611,  120  N.  Y.  571,  24  N.  E.  Rep. 
824.  31  N.  Y.  S.  R.  852. 

45.  Liability  for  goods  lost.— A  com- 
pany chartered  by  the  state  does  not,  by 
leasing  its  road  to  another  corporation,  re- 
lease itself  from  liability  for  goods  received 
by  its  line  for  carriage  and  not  delivered. 
Chester  Nat.  Bank  v.  Atlanta  6-  C.  Air  Line 
R.  Co.,  25  So.  Car.  216. — Reviewed  in  Har- 
mon V.  Columbia  &  G.  R.  Co.,  28  So.  Car. 


401,  13  Am.  St.  Rep.  686,  5  S.  E.  Rep.  835, 
— Langley  v.  Roston  &>  M.  R.  Co  ,  10  (hay 
(Afass.)  103.— DlsriN(iuisHKi)  i.\  .MalKJuey 
p.  Atlantic  &  St.  L,  R.  di,,  63  Me.  68. 
McClufr  T'.  Manchester  &  L.  R.  Co.,  13 
Giay  (Mass.)  124. 

Liability  for  loss  of  freight  burnefl  at  a 
depot  cannot  be  avoided  by  the  railroad 
company  under  a  plea  that  its  r(jad  was 
leased' to  another  company  who  also  owned 
tlie  depot.  International  &*  G.  N,  R.  Co.  v. 
Moody,  35  4////.  &•  Eng.  R,  Cas.  607,  71 
r<'.r.  614,  9.V.  \V.  Rcp.\bl. 

A  lease  from  a  railroad  company  whidi 
transfers  to  the  lessee  all  its  contracts,  does 
not  render  the  lessors  liable  for  goods  de- 
livered to  the  lessee  under  a  contract  be- 
tween  the  plaintifl  and  the  lessors.  Pitts- 
burg, Ft,  IV.  tSr'  C.  R.  Co.  v.  Harbaugh,  4 
Brews.  (J'a  )  115. 

4».  Liability    for    stock    killed 

Where  a  railroad  is  run  and  operated  by  a 
lessee,  not  in  the  name  of  the  company, 
but  in  its  own  name,  it  is  not  liable,  under 
section  1  of  Ind.  Act  of  March  4th,  1863 
(I  Rev.  St.  1876,  p.  751),  for  stock  killed  by 
it  before  such  act  was  amended  by  the  Act 
of  March  14th,  1877  (Acts  1877,  Spec.  Sess. 
p.  61).  Pittsburgh,  C.  &^  St.  L.  R.  Co.  v. 
Hunt,  71  ///(/.  229. 

47.  Liability  for  floodint;  laiuLs.— 
Where  a  road  is  in  full  control  of  the  les- 
sees, the  lessors  are  not  liable  for  injuries 
to  landowners  caused  by  culverts  getting 
out  of  order,  after  the  road  goes  into  the 
control  of  the  lessees ;  but  evidence  of  the 
condition  of  the  culverts  after  the  lease  is 
admissible.  Chicago,  M.  &*  N.  Ji.  Co.  v. 
Eichman,  47  ///.  App.  1 56. 

Under  the  New  York  rule  that  the  lessor 
of  a  railroad  is  not  liable  for  the  negligence 
or  torts  of  the  lessee,  a  railroad  company 
cannot  be  held  liable  for  damages  caused  by 
the  washing  of  earth  from  an  embankment 
erected  by  the  lessee,  which  the  lessor  was 
not  bound  by  statute  or  contract  to  build, 
and  which  was  not  necessarily  a  nuisance. 
The  fact  that  the  lessor  was  bound  under 
the  lease  to  pay  the  lessee  for  any  work 
chargeable  to  construction  cannot  make  it 
liable.  Miller  v.  New  York,  L.  lS^•  W.  R. 
Co.,  47  Aw.  &>  Eng.  R.  Cas.  369.  125  A'.  Y. 
118,  26  A'.  E.  Rep.  35.  34  A^.  Y.  S.  R.  607  ;  re- 
versing  20  A^.  Y.  S.  R.  1 57,  3  A''.  Y.  Supp.  245. 

48.  Liability  for  fires  startiii{;  in 
dead  gross  on  right  of  way. — A  com- 
pany which  has  leased  its  road  to  another 


^jViM., 


828 


LEASES,  ETC.,  4U-rtl. 


cumpany,  and  the  exclusive  ust;  <>i  itH  track, 
etc.,  for  niiu;ty-iiinc  years,  which  IcasinK  is 
coiitirnicd  by  tlie  lenislature,  will  he  lialile 
for  liic  (icstructiuii  of  property  l)y  lire, 
caused  liy  a  Mej;lectoii  the  part  of  tlie  lessee 
company  to  keep  its  track  and  right  of  way 
clear  from  all  dead  f^rass,  dry  wcefls,  etc., 
noiwiihstandinn  the  legiblature  may  have 
conferred  upon  such  lessee  company  all  the 
powers  of  the  lessor  company,  aiicl  others. 
There  being  no  clause  of  exemption  in  such 
act  of  the  legislature,  the  liability  of  the 
lessor  would  remain.  lialsUy  v.  St.  Louis, 
A.&'  r.  If.  A'.  Co..  25  yliii.  6-  Juij;.  A'.  Ciis. 
497,  I  ly  ///.  68.  8  A".  /•:.  A;/>.  859. 

■4J),  UiKlit  ot'l«'H»«»r  to  hihs— Wherea 
domestic  railroad  company  has  leased  its 
road  to  a  foreign  corporation,  and  an  action  is 
pending  in  the  name  of  the  people  to  have 
the  charter  declared  forfeited,  on  the 
ground  that  the  lease  is  illegal,  the  lessor 
company  cannot  maintain  a  separate  action 
against  the  lessee,  merely  for  tiie  purpose 
of  having  the  court's  opinion  as  to  whether 
the  lease  is  u/Zra  vires,  and  if  so,  to  havf"  a 
decree  awarding  it  the  possession  of  the 
properly.  Oj^dcnsbtirgh  &*  /,.  C.  li.  Co.  v. 
I'ermont  (S^  C.  R.  Co.,  4  Hun  {N.  1'.)  712  ; 
ajffirtnittg  16  Abb.  J'r.  A'.  S.  249;  appeal 
7iot  dismissed  in  i)T,  X.  V.  176. 

One  street-railway  company  leased  its 
road  to  another,  the  lessee  covenanting  to 
assume  all  theliabiliticsand  burdens  imposed 
on  the  lessor  by  its  charter.  Subsequently 
the  lessees  refused  to  comply  with  an  order 
of  the  town  authorities  to  alter  the  track, 
and  such  authorities  revoked  a  part  of  the 
location  and  threatened  to  revcjke  the  re- 
mainder. Held,  that  the  lessor  company 
could  not  maintain  a  bill  in  equity  to  com- 
pel the  lessee  to  alter  the  track.  Its  remedy 
was  to  make  the  alteration  itself  and  then 
sue  at  liiw.  Medford  &>  C.  R.  Co.  v.  Soiner- 
ville,  1 1 1  Mass.  232. 

The  P.  C.  R.  Co.  leased  its  franchises 
and  road  for  the  term  of  09  years,  renewa- 
ble forever,  to  the  C.  &  T.  \\.  Co.,  which 
was  a  company  created  l)y  the  consolida- 
tion of  the  T.  N.  &  C.  R.  Co.  and  the  Junc- 
tion R.  Co.  The  consideration  was  in  the 
form  of  covenants — to  pay  taxes,  to  assume 
debts,  to  finish  the  road,  and  to  operate 
and  manage  the  road  in  such  a  manner  as 
would  not  endanger  the  corporate  rights  of 
the  lessor.  It  appeared  that  only  a  small 
sum  of  money  had  ever  been  paid  in  by  the 
stockholders  of  the  P.  C.  Co.,  which  had 


never  been  expended ;  that  the  cost  of  any 
work  on  the  road,  previous  to  the  lease, 
had  been  defrayed  by  the  Junction  Co., and 
that  this  work  had  been  done,  and  the  or- 
ganization of  the  P.  C.  Co.  made  nndei  the 
general  law  of  the  state,  to  enable  the  Junc- 
tion C(j.  to  extend  its  line  in  a  manner  its 
charter  did  not  permit.  Held,  that  the  P. 
C.  Co.  was  not  entitled  to  a  specific  per- 
formance of  the  ccjvenant  in  the  lease  to 
operate  the  r>)ad.  I'ort  Clinton  R.  Co,  v. 
Clnu'land  i^  T.  R.  Co.  13  Oil  10  .s/.  544.— 
DlsriNCUlHllINi;  State?'.  Hartford  &  N.  H. 
K.  Co.,  29  Conn.  538;  Rigby  ta  (ireal  \V<st- 
ern  R.  Co.,  2  Phillips  44.  (JUoilMi  Storer 
71.  Great  Western  R.  Co.,  2  Y.  tt  Coll.  48; 
South  Wales  R.  Co.  ?'.  Wythes,  31  ling.  L. 
&  Eq.  226.  Rkvikwim;  F\>ople  v.  Albany 
&  V.  R.  Co.,  24  N.  Y.  261. 

50.  Ui^Iit  to  recover  danuiKcs  to 
leased  ffrouiulN.— Under  a  lease  of  a 
railroad  cotnpany  including  all  lands  on 
which  the  depot  grounds,  etc.,  were  and 
might  thereafter  be  located,  and  including 
such  new  ground  as  might  thereafter  be 
acquired,  lands  afterwards  acquired  for 
depot  grounds  do  not  pass  to  the  lessee 
immediately;  and  the  lessor  is  entitled  to 
recover  damages  for  any  injuries  thereto 
while  they  are  in  its  possession,  bein;; 
graded  and  prepared.  Norwich  &»  W.  R. 
Co.  V.  Worcester,  36  ^Ini.  &^  luij^,  /^\  Cas. 
447,  147  Mass.  518,  18  jV.  /■:.  A.;.  409. 

51.  Ui^riit  <»f  a  liorse-ear  coiii|iaii.v 
to  lease  to  a  motor  eonipaiiy.— 111.  Act 
of  Feb.  12,  I S55,  authorizing  railroad  com- 
panies to  make  contracts  for  leasing  or  run- 
ning their  roads,  does  not  prevent  such  ar- 
rangement between  a  road  chartered  to  use 
horse  power  with  another  authorized  to  use 
steam  power;  but  in  such  case  the  lessee 
conipany  must  operate  the  leased  roiid  ac- 
cording to  the  charier  powers  of  the  lessor. 
Cltica};o  v.  Evans,  24  ///.  52. 

And  under  the  above  statute  a  horse 
railroad  cannot  be  leased  to  a  steam  rail- 
road, and  operated  by  steam,  nor  tu'ce  ver.ui. 
C/ticai^o  V.  Evans.  24  ///.  52. 

Upon  an  appeal  from  a  refusal  to  grant  a 
preliminary  injunction  to  restrain  a  city 
passenger-railway  company  from  leasing  its 
road  to  a  motor-power  company,  the  su- 
preme court  will  not  decide  whether  a  city 
passenger-railway  company,  without  power 
under  its  charter  or  under  the  general  laws 
relating  to  city  passenger  raihvays  to  lease 
its  line,  has  such  power  by  implication  under 


LEASES,  ETC.,  02,  53. 


223 


subdivision  8  of  section  i  of  the  Pa.  Act 
of  March  32.  i«87  (•*•  L.  8),  wliicli  nives  to 
motor  power  companies  tlie  power  to  lease 
the  priiperiy  aiul  franchises  of  passenyer- 
liiiiway  companies  and  operate  them,  but 
without  stating  in  the  title  of  the  act  a  pur- 
;.()se  to  enlarge  the  powers  of  city  passenger 
railways.  Smith  v.  AUnd/'/ij,'-  City  J'ti.is.  A'. 
Co.,  156  /'-/.  St.  5,  26  ^;//.  /u/.  779;  aj/irm- 
ii{tf  2  Pa.  Pist.  490, 

52.  l»U'JUllii»f»  aiirt  proolM  in  ac- 
tions iiKaiiiMt  li'MSOTH.— Under  section 
790,  Kev.  St.  Mo.  1879,  providing  tliat  a 
"corporation  in  this  state  leasing  its  road 
to  a  corporation  of  another  state  sliall  re- 
main liable  as  if  it  operated  the  road  itself," 
the  fact  of  the  U-asing  must  be  alleged  and 
proved  in  order  to  maintain  suit  for  the 
negligence  of  the  employes  of  the  lessee 
against  the  lessor  road.  Main  v.  Hannibal 
&•  .St.  J.  K.  Co.,  kS  Mo.  App.  388,— Ai-i'Mi;i) 
IN  Ikown  V.  Hannibal  &  St.  J.  [<.  Co.,  27 
Mo.  App.  394. 

Although  there  maybe  neither  allegation 
nor  proof  of  the  relation  of  lessor  and  les- 
see, but  it  appears  that  the  C,  H.  &  y.  Co. 
had  for  a  considerable  period  of  time  been 
regularly  operating  its  trains  over  defend- 
ant's road  with  its  consent,  and  tlie  two 
companies  must  then  liave,  at  least,^  borne 
the  relation  of  licensor  and  licensee,  and, 
since  the  defendant  has  received  its  charter 
from  the  state,  and  by  its  acceptance  has 
taken  upon  itself  burdens  and  responsibili- 
ties which  it  cannot  shift  without  the  state's 
consent,  it  is  responsible  for  the  negligence 
of  iinollier  exercising  its  franchises  witii  its 
permission,  and  whether  such  permision  be 
by  lease  or  by  license  makes  no  diflerence. 
McCoy  V.  Kansas  City,  St.  J.  &^  C.  li.  li.  Co., 
3C)  Mo.Apfi.  445.— Kk.vikwing  Macon  &  A. 
K.  Co.  V.  Mayes,  49  Ga.  355. 

The  lessee  of  a  railroad  who  takes  by 
permission  of  the  statute  authorizing  the 
lease,  but  with  the  express  reservation  that 
the  lessor  shall  not  escape  ;iiiy  of  the  re- 
sponsibilities it  owes  the  public,  is,  so  far  as 
the  public  is  concerned,  the  mere  agent  of 
the  lessor,  and  in  an  action  against  the  les- 
sor for  the  act  of  the  lessee  the  petition, 
pleading  the  fact  according  to  its  legal  ef- 
fect, may  charge  the  act  to  have  been  com- 
niitted  by  tlic  defendant  corporation,  and 
tile  fact  tliat  it  turns  out  in  proof  to  have 
been  committed  by  defendant's  lessee  will 
not  ulTcct  the  right  of  recovery.  McCoy  \. 
Kansixs  City,  St.  J.  G-^  C.  /.'.  A".  Co..  36  Mo. 


App.  445,— Quoting  Stearns  v.  Atlantic  «& 
Si.  L.  U.  Co..  46  Me.  95;  Nelson  v.  Ver- 
mont &  C.  K.  Co..  26  Vt.  7'7  ;  Illinois  C.  K. 
Co.  V.  Harron,  5  Wall.  (U.  S.)  90.  Kevikw- 
INU  Freeman  v,  Minneapolis  &  St.  L.  R. 
Co.,  28  Minn.  443. 

4.  Rights  and  Liabilities  of  Lessees, 
a.  Generally.* 

53.  VarloiiH    r\\g,\itn  and  diiticN.— 

Lessees  of  railroad  companies  in  Georgia, 
where  tl'.e  companies'  charters  authorize 
the  taking  of  private  property  for  public 
purposes,  are  common  carriers  when  en- 
gaged in  conducting  a  freight  and  pas- 
senger business  under  the  franchises  of  the 
lessors.  Caldwell  v.  Kichmond  &>  D.  R, 
Co.,  89  Ga.  550,  15  S.  E.  Rep.  678. 

Mass.  Rev.  St.  ch.  39,  §  78,  requiring 
every  railroad  corporation  to  carry  a  bell 
on  every  engine  passing  upon  "its  road," 
etc.,  applies  to  a  railroad  corporation  who 
has  taken  a  lease  of  a  railroad  owned  by 
another  corporation,  and  is  running  its 
own  engines  upon  it  undei  such  lease. 
Lin  field  v.  Old  Colony  R.  Corp.,  10  Cush, 
{Mass.)  562. —  Kk.viewed  in  Pierce  v.  Con- 
cord R.  Co.,  51  N.  H.  590. 

A  lease  to  a  railroad  by  name  is  binding 
though  there  be  no  corporation  of  that 
name,  where  it  appears  that  at  the  time  the 
road  was  owned  by  an  individual  who  was 
carrying  on  the  business  under  the  name 
employed  in  the  lease.  Eci'er  v.  Chicago, 
li.  (S-  <2.  R.  Co.,  I  Am.  &*  Eng.  R.  Cas.  357, 
8  Mo.  App.  223. 

A  lease  under  seal,  executed  by  an  agent 
as  lessee  in  his  individual  name,  and  which 
does  not  purport  to  be  executed  on  behalf 
of  the  principal,  is  not  binding  upon  the 
latter,  although  the  fact  of  the  agency  is 
recited  therein,  and  although  it  appears  by 
extrinsic  evidence  that  the  lessee  acted  as 
agent :  the  instrument  can  only  be  enforced 
against  the  party  who  appears  upon  the 
face  of  it  to  be  the  covenantor.  Kiersted  v. 
Orange  &>  A.  A'.Co.,6g  A\  V.  343;  reversing 
54  Ho7i>.  Pr.  -..). 

Where  a  railwav  company  leases  another 
line,  such  leased  line  is  not  a  part  or  branch 
of  the  original  railway,  within  the  meaning 
of  an  aj:[reemcnt  between  such  railway  and 
the  trustees  of  a  dock,  whereby  the  railway 

*  Liability  of  lessee,  see  note,  15  Am.  &  Eng. 
R.  Cas.  m6. 


OOJ. 


LEASES,  ETC.,  54,65. 


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company  agreed  to  cause  all  minerals,  wliich 
should  he  conveyed  upon  its  line,  or  any 
pan  or  branch  of  it,  (or  sliipment,  to  be 
.shipped  into  vessels  at  such  dock.  Tii^ 
I' ilk  R.  Co.  V.  . ".lacnabli,  42  L.  J.  Q.  B.  1 53, 
L.  A'.  6  //.  L.  O.s.  169,  22  H'.  A'.  65. 

54.  Coiistructiuu  of  leases— Wlint 
passes. — In  the  interpretation  of  any  par- 
ticular clause  of  a  contract,  the  court  is  re- 
quired to  examine  the  entire  contract,  and 
may  also  consider  the  relations  of  the 
parties,  tluir  connection  with  the  subject- 
niaitcr  01  liie  contract,  and  the  circum- 
stances under  which  it  was  made.  Chicago, 
R.  I.  (S«  P.  R.  Co.  V.  Denver  &^  R.  G.  R. 
Co.,  50  Am.  &*  Eng.  R.  Cas.  60  143  U.  S. 
596,  12  Sup.  Ct.  Rep.  i\'j<);  tnodifying  and 
affirviing  45  Fed.  Rep.  304. 

One  of  the  provisions  of  a  lease  was  that 
.the  lessee  should  pay  a  proportionate  share 
of  the  expenses  actually  incurred  in  paying 
proper  salaries  to  the  general  superintendent 
and  subordinates  employed  by  the  lessor  in 
superintending  certain  terminals.  Heli, 
that  ihe  lessee  was  entitled  to  use  its  own 
switch  engines  and  men  in  handling  freight 
trains  at  such  terminals,  but  must  do  it  un- 
der tiie  superintendence  of  the  lessor.  Chi- 
cago, R.  I.  6^  P.  R.  Co.  v.  Denver  6^  R.  G. 
R.  Co.,  50  Am.  &•  Eng.  R.  Cas.  60,  143  I/.  S. 
596,  12  Sufi.  Ct.  Rep.  479;  modifying  and 
affirming  45  Fed.  Rep.  30',. 

The  lease  was  silent  as  to  provisions  for 
car-cleaning  facilities,  but  it  did  provide 
that  the  lessor  on  reasonable  notice  should 
onstruct  additional  side  tracks,  spurs,  etc., 
the  cost  to  be  bortic  ^  "  the  two  companies; 
and  if  the  lessor  faued,  the  lessee  might 
construct  such  tracks  as  it  needed  and  be- 
come the  sole  owner  thereof.  Held,  that 
the  lessee  was  entitled  to  use  tracks  for  car- 
cleaning  purposes  constructed  by  the  lessor; 
and  if  it  should  be  excluded  therefrom  it 
could  require  other  tracks,  or  build  them 
itself,  under  the  above  provisions  of  the 
lease.  Chicago,  R.  I.  &•  P.  R.  Co.  v.  Denver 
<£•>»  R.  G.  R.  Co.,  50  Am.  &^  Eng.  R.  Gi.v.  60, 
143  U.  S.  596,  12  Sup.  Ct.  Rep.  479;  modify- 
ing and  affirming  45  Fed.  Rep.  304, 

Where  a  railroad  lease  excludes  from  its 
operation  the  companies'  "shops"  at  'a 
designated  place,  the  term  "  shops  "  extends 
to  a  tract  of  sixty  acres  of  land  on  which 
the  shops  are  situated,  and  which  is  used  in 
connection  with  them;  but  the  lessee  is 
not  excluded  from  a  "  Wye  "  track  used  in 
turning  cars  on  the  grounds.    Chicago,  R.  I. 


S^  P.  R.  Co.  v,  Denver  &*  R.  G.  R.  Co.,  50 
Am.  &•  Etig.  R.  Cas.  60,  143  I/.  .S".  596,  12 
Sup.  Ct,  Rep.  479 ;  modifying  and  affirming 
45  Fed.  Rep.  304.  —  Distinguishing  New 
Orleans  Pac.  R.  Co.  v.  Parker,  143  U.  S.  42. 

A  railroad  lease  was  of  the  railroad  and 
all  the  company's  land  upon  or  across 
which  its  road  or  any  part  thereof,  or  its 
machine  shop,  warehouses,  freight  or  pas- 
senger depot  buildings  are  constructed. 
Prior  to  the  lease  the  company  had  ac- 
quired a  strip  of  land  to  be  used  as  a  street 
to  a  station.  Ne/d,  that  such  land  was  in- 
cluded in  the  lease  ;  and  where  it  was  taken 
in  condemnation  proceedings  by  another 
company,  the  money  awarded  as  damages 
belonged  to  the  lessee  during  the  term  of 
the  lease.  /«  re  Nav  York  C.  R.  Co.,  49  A^. 
Y.  414,  2  Am.  Ry.  Rep.  175;  reversing  49 
Barb,  501  ;  affirming  6  Alb.  L.J.  173. 

55.  Lessee  is  limited  to  lessor's 
charter  powers.— The  rights  and  liabili- 
ties of  a  lessee  company  are  governed  en- 
tirely by  the  charter  of  the  lessor  company. 
McMillan  v.  Michigan  Southern  &*  N.  I. 
R.  Co.,  16  Mich.  79.  McCandless  v.  Rich- 
mond Sf*  D.  R.  Co.,  38  So.  Car.  103,  16  S.  E. 
Rep.  429. 

Where  a  corporation  acquires  by  lease 
the  property,  rights,  privileges,  and  fran- 
chises of  a  street-railroad  company,  it  takes 
them  burdened  with  the  latter's  charter  ob- 
ligations, and  although  the  lease  contains 
no  provision  therefor,  it  is  liable  for  a  per- 
centage upon  the  gross  earnings  of  the 
road,  which  the  charter  provides  must  be 
paid  into  the  city  treasury.  Mayor,  etc.,  of 
N.  Y.  V.  Twenty  third  St.  R.  Co.,  41  Am.  <S- 
Eng.  R.  Cas.  640,  113  ^V.  Y.  311,  21  A'.  E. 
Rep.  60,  22  A^.  Y.  S.  R.  958 ;  affirming  48 
Hun  552,  16  JV.  Y.  S.  R.  137.  i  N.  Y.  Supp. 
295. 

A  leased  railroad  must  ordinarily  be 
operated  under  the  charter  of  the  lessors. 
So  where  one  company  leased  the  road  of 
another  with  its  "  rights,  powers,  and  privi- 
leges," the  lessees  were  held  bound  by  the 
charter  of  the  lessors  in  fixing  the  rate  of 
tolls,  not  their  own  charter.  Pennsylvania 
R.  Co.  V.  Sly,  65  Pa.  St.  205.  —  Quoted  in 
Daniels  v.  St.  Louis,  K.  C.  &  N,  R.  Co.,  62 
Mo.  43. 

The  Traction  Co.,  by  accepting  a  lease 
from  the  Union  Passenger  R.  Co.,  and 
taking  possession  of  the  road,  and  operating 
it  under  such  lease,  must  be  held  thereby 
to  have  assumed  the  responsibility  of  per- 


LEASiiS,  ETC.,  50-38. 


oor. 


forming  all  the  duties  imposed  by  the  legis- 
lature upon  the  lessors  in  the  original  act 
of  incorporation ;  amon'j  others,  the  duty, 
imposed  for  the  benefit  of  the  public,  of 
paving,  repaying,  and  repairing  the  streets 
occupied  by  the  road  wliich  they  operated. 
And,  where  the  plaintiff  sues  for  an  injury 
resulting  from  a  neglect  of  that  duty  to  the 
public,  they  will  be  held  responsible.  Mul- 
len V.  Philadelphia  Traction  Co.,  19  Phila, 

{Pa.)  441. 

50.  Right  to  exercise  power  of 
cininniit  domain. — It  matters  not  that 
the  necessity  for  an  increase  of  the  right  of 
way  for  additional  tracks  of  a  railway  com- 
pany is  caused  by  the  use  of  its  road  by 
otlier  companies  acting  under  its  lease  or 
by  contract,  nor  does  it  matter  by  what  cor- 
poration or  corporations  its  road  is  actually 
operated.  It  is  still  a  public  use,  and  in 
such  case  the  need  of  the  lessees  is  that  of 
the  lessor  company,  and  the  lessees  may 
proceed  to  condemn  in  the  name  of  the 
lessor  when  the  public  necessity  so  requires. 
C/iicaj^o  &•  IV.  I.  R.  Co.  v.  Illinois  C.  A'.  Co., 
113  ///.  156.— Reviewing  Smith  v.  Chicago 
&\V.  I.  R.  Co.,  105  III.  511. 

The  fact  that  a  railroad  is  leased  for  100 
years  does  not  give  the  lessee  any  power  of 
eminent  domain.  Such  power  remains  en- 
tirely in  the  lessor,  and  in  amending  the 
cliarter  with  reference  thereto  the  legisla- 
ture may  deal  entirely  with  the  lessor. 
Mayor,  etc.,  of  Worcester  v.  Norwich  &*  W. 
R.  Co.,  109  Mass.  103. 

57.  Liability  for  obli{ratioiis  of  les- 
sor.*—Where  the  obj-^ct  of  a  railroad  leased 
is  to  raise  money  to  discharge  the  liens  there- 
on, and  the  lessee  company  covenants  to  pay 
off  Dnd  discharge  all  judgment  liens,  the 
owner  of  a  judgment  against  the  lessor 
which  is  a  lien  on  the  road  at  the  time  the 
lease  is  made  may  take  a  decree  directly 
against  the  lessee  reqr"  "ing  it  to  pay  the 
amount  of  the  judgmeiu.  Chicaj^o,  M.  <S>»  St. 
P.  R.  Co.  V.  Chicago  Third  A'at.  Bank,  1 34 
U.S.  276,  lo  Sup.  Ct.  Rep.  550;  affirmin}' 
26  Fed.  Rep.  820. 

The  lessee  of  the  company  constructing 
and  owning  the  road  may  be  enjoined  from 
operating  it  until  payment  of  damages 
legally  awarded.  Hibbs  v.  Chicago  &*  S. 
W'.  R.  Co.,  39  lojva  340,  9  Am.  Ry.  Rep.  180. 

*  Liabllitv  of  lessee  of  road  for  lessor's  debts, 
see  43  Am.  &  Eno.  R.  Cas.  688,  afis/r. 

Transfer   of  liabilitv    from  lessor  to    lessee, 
see  note,  25   Am.  ."t  Eng.  R.  Cas.   501. 
6D.  R.  D.— 15. 


Where  a  railroad  is  constructed  by  one 
company  and  subsequently  passes  into  the 
hands  of  another,  the  second  company  is 
not,  by  reason  of  its  possession  of  the  road, 
liable  for  any  taking  of  property  in  the 
original  construction,  unless  it  has  entered 
into  the  use  and  posse:  :ji>jn  of  the  lands  so 
taken.  Wead  v.  St.  Johnsbury&*  L.  C.  R. 
Co.,  64  Vt.  52,  34  Atl.  Rep.  361. 

The  owner  of  land  granted  to  a  railroad 
a  right  of  way,  and  in  consideration  Uicrcof 
the  company  agreed  by  parol  to  issue  the 
grantor  annual  passes  for  life.  Afterwards 
the  road  was  leased,  the  lessees  taking  it 
free  from  "  all  debts,  dues,  claims,  and  liabili- 
ties" of  the  lessors.  Held,  that  the  claim 
for  an  annual  pass  was.  included  in  the 
above,  and  the  lessees  were  not  liable  for  a 
failure  to  provide  it.  Pennsylvania  Co.  v. 
Erie  &^  P.  R.  Co.,  29  Am.  &"  Eng.  R.  Cas. 
549.  108  Pa.  St.  621. 

The  lessee  of  a  railroad  agreed  to  pay 
the  debts  of  the  lessor  after  they  siiould  be 
audited  by  the  latter.  A  creditor  subse- 
quently obtained  judgment  against  the 
lessor  before  a  justice  of  the  peace,  and 
then  commenced  suit  in  court  against  the 
lessee,  in  the  name  of  the  lessor,  for  his 
use,  to  enforce  the  judgment,  //eld,  as 
there  was  no  privity  of  contract  between 
him  and  the  lessee,  and  the  claim  had  nut 
been  audited,  the  suit  could  not  be  main- 
tained. His  remedy  was  to  enforce  his 
judgment,  either  by  execution,  or  compel 
the  lessor  by  mandamus  to  audit  his  claim. 
Mississippi  C.  A*.  Co.  v.  Southern  A'.  Assoc, 
II  Am.  6-  Eng.  R.  Cas.  576,  7  Baxt.  {Tenn.) 

595- 

58.  When  le.sNee  company  bcconiPH 
a  new  corporation.— The   Ga.  Act   of 

Nov.  12,  1889,  providing  for  the  lease  of 
the  Western  &  Atlantic  road,  declares  that 
"the  persons,  associations,  or  corporations 
accepted  as  lessees  under  this  act,  if  not 
already  a  corporation  created  under  the 
laws  of  Georgia,  shall,  from  the  time  of 
such  acceptance,  and  until  after  the  final 
adjustment  of  all  n)atters  springing  out  of 
this  lease  contract,  become  a  body  politic 
and  corporate  under  the  laws  of  this  state, 
under  the  name  and  style  of  the  Western  & 
Atlantic  R.  Co.,  which  body  corporate  shall 
be  operated  only  from  the  time  of  their 
taking  possession  of  said  road  as  lessees;  and 
it  shall  have  the  power  to  sue  and  be  sued 
on  all  contracts  made  by  said  company,  in 
any  county  through  which  the  road   runs, 


'■1G 


LEASES,  ETC.,  59-61. 


'  t 


mi 


after  the  execution  of  said  lease,  or  for  any 
cause  of  action  which  may  accrue  to  said 
company,  and  to  which  it  may  became  lia- 
ble." When,  therefore,  the  Nashville,  Chat- 
tanooga &  St.  Louis  R.  Co.  became  the  les- 
see under  this  act,  a  new  corporation  under 
the  laws  of  Georgia  was  created,  under  the 
name  and  style  of  the  Western  &  Atlantic 
R.  Co.  ;  and  for  any  tort  conmiitted  in  the 
operation  of  its  railroad  that  corporation, 
and  not  the  Nashville,  Chattanooga  &  St. 
Louis  R.  Co.,  is  liable.  In  such  case  sec- 
tion 3407  of  the  Code  does  not  apply,  and 
an  action  against  the  Nashville,  Chattanooga 
&  St.  Louis  for  the  tort  is  not  maintainable, 
though  the  declaration  alleges  that  "  the 
defendant  operates  as  lessee  the  Western  & 
Atlantic  Railroad,"  the  act  requiring  that 
the  Western  &  Atlantic  R.  Co.  shall  be  sued. 
Nashville,  C.  &•  St.  L.  K.  Co.  v.  Edwards, 
52  Am.  &•  Eng,  R,  Cos.  62,  91  Ga.  24,  16  S. 
E.  Rep.  347. 

b.  Liability  to  Third  Persons. 

59.  Generally.— A  railroad  company 
which  has  possession  of  and  is  actually  op- 
erating a  railroad,  and  holds  itself  out  to  the 
public  as  the  operator,  is  liable  for  damages 
occasioned  to  third  persons  by  the  negli- 
gence of  its  officers  or  agents  in  the  manage- 
ment or  operation  of  the  same,  whether  its 
possession  thereof  is  legal  or  illegal.  Jack- 
sonville, T.  &»  K.  W.  R.  Co.  V.  Peninsular 
Land,  T.  &*  M.  Co.,  49  Am.  &•  E>tg.  R.  Cas. 
603,  27  Fla.  I,  9.  So.  Rep.  661. 

Where  a  railroad  company  operates  and 
controls  a  railroad  in  its  own  name  and 
through  its  own  officers  and  employes,  it  is 
liable  to  a  third  person  for  an  injury  result- 
ing to  him  from  negligence  in  the  manage- 
ment or  operation  of  the  same,  and  no 
exemption  from  such  liability  is  caused  by 
the  fact  that  its  possession  and  operation  of 
the  road  are  under  an  agreement  between 
such  company  and  the  owner  of  the  road, 
i  ■'  the  terms  of  which  the  company  is  to 
•  lerate  the  road  in  its  own  right,  furnish 
the  rolling  stock  and  to  charge  for  the  use 
of  the  same,  and  also  charge  a  certain  per 
cent,  of  its  own  expenses  as  the  operating 
expenses  of  such  road.  Jacksonville,  T.  &* 
K.  ,W.  R.  Co.  ,.  Peninsular  Land,  T.  <S-  M. 
Co.,  49  Am.  &*  Eng.  R.  Cas.  603,  27  Fla.  i, 
9  So.  Rep.  661. 

The  lessee  of  a  railroad  is  a  common  car- 
rier over  a  line  leased  and  controlled  by  it 
as  much  as  over  its  own  line,  and  is  respon- 


sible in  damages  in  respect  to  the  leased 
road,  as  well  as  its  own,  to  any  person  who 
has  a  rigiit  of  action  given  him  by  law 
against  railroad  companies.  Logan  v.  Cen- 
tral R.  Co.,  74  Ga.  684. 

It  seems  that  it  is  competent  for  the  legis- 
lature, in  granting  permission  to  lease,  to 
transfer  all  or  any  liability  to  the  lessee. 
Abbott  V.  Johnstown,  G.  &•  A'.  Horse  R.  Co. , 
2  Am.  &•  Eng.  R.  Cas.  541,  80  N.  Y.  27,  36 
Am.  Rep.  572. 

UO.  For  its  own  or  the  lessor's 
torts.* — The  lessee  of  a  railroad  is  respon- 
sible for  its  torts.  Missouri  Pac.  R.  Co.  v. 
Watts,  22  Am.  <S>»  Eng.  R.  Cas.  277,  63  Tex. 
549. — Reviewed  in  International  &  G.  N. 
R.  Co.  V.  Underwood,  34  Am.  &  Eng.  R. 
Cas.  570,  67  Tex.  5S9;  East  Line  &  R.  R. 
R.  Co.  V.  Culberson,  38  Am.  &  Eng.  R.  Cas. 
225,  72  Tex.  375,  3  L.  R.  A.  567,  10  S.  W. 
Rep.  706. 

The  lessee  of  a  railroad  cannot  be  held 
responsible  for  the  negligence  or  wrong  of 
its  lessor.  Commoniucalth  v.  Chesapeake  &^ 
O.  R.  Co.,()\  Ky.  118,  15  i'.  W.  Rep.  53. 

Or  for  torts  committed  by  the  lessor  i)rior 
to  the  execution  of  the  lease.  Pittsburgh, 
C.  &^  St.  L.  R.  Co.  v.  A'ain,  35  I/td.  291. 

61.  For  injuries  to  im.sscngers.— 
By  virtue  of  their  lease  of  the  Atlantic  &  St. 
Lawrence  road  the  Grand  Trunk  R.  Co.,  for 
certain  purposes,  became  owners  of  the  road 
leased,  pro  hac  vice.  Mahoney  v.  Atlantic 
Sr'St.  L.  R.  Co.,  63  Me.  68.— Followed  in 
Abbott  V.  Johnstown,  G.  &  K.  Horse  K. 
Co.,  2  Am.  &  Eng.  R.  Cas.  541, 80  N.  Y.  27, 
36  Am.  Rep.  572. 

While  the  lessees  operate  that  road  under 
their  lease,  the  lessors  are  not  liable  under 
their  charter  or  the  statutes  of  the  state  for 
an  injury  sustained  thereon  by  a  passenger, 
caused  by  the  wrongful  acts  of  the  agents 
or  servants  of  the  lessees  towards  him. 
Mahoney  v.  Atlantic  &•  St.  L.  R.  Co.,  63 
Me.  68. — Approving  Pierce  v.  Concord  R. 
Co.,  51  N.  H.  593.  Distinguishing 
Langleyw.  Boston  &  M.  R.  Co.,  10  Gray 
(Mass.)  103.  Reviewing  Whitney  v.  At- 
lantic &  St.  L.  R.  Co.,  44  Me.  367  ;  Stearns 
V.  Atlantic  &  St.  L.  R.  Co.,  46  Me.  117  — 
Distinguished  in  Nugent  v.  Boston,  C.  & 
M.  R.  Co.,  38  Am.  &  Eng.  R.  Cas.  52,  80 
Me.  62,  12  Atl.  Rep.  797;  Arrowsmith  z/. 
Nashville  &  D.  R.  Co.,  57  Fed.  Rep.  165. 


*  Liability  for  torts  where  one  company  usei 
tracks  of  another,  see  note,  53  Am.  &  Eno.  R. 
Cas.  78. 


LEASES,  ETC.,  02-65. 


227 


Not  followed  in  Braslin  v,  Somerville 
Horse  R.  Co.,  32  Am.  &  Eng.  R.  Cas.  406, 
145  Mass.  64,  4  N.  Eng.  Rep.  888,  13  N.  E. 
Rep.  65. 

There  is  no  privity,  eitlier  of  contract  or 
by  implication  of  law,  between  the  passen- 
gers and  the  lessors  as  common  carriers  of 
passengers  by  which  they  are  rendered 
liable  for  such  an  i.ijury.  Mahoney  v.  At- 
lantic 6-  St.  L.  K.  Co.,  63  Me.  68. 

The  remedy  of  the  passenger  for  an  in- 
jury thus  cai'.sed  is  against  the  lessees  who 
had  the  exclusive  use,  care,  direction,  and 
control  of  the  road,  whose  agent  the  al- 
leged wrong-doer  was,  and  with  whom  alone 
the  passenger  contracted.  Mahoney  v.  At- 
lantic &•  St.  L.  A'.  Co.,  63  Me.  68. 

While  the  Baltimore  &  O.  R.  Co.,  as  a 
corporation  of  the  state  of  Maryland,  can 
have  no  legal  existence  outside  of  that 
state,  yet,  as  the  lessee  of  a  Virginia  com- 
pany, exercising  all  the  powers  and  func- 
tions of  the  latter,  it  may  be  subject  to  all 
its  duties  and  obligations.  So  acting,  it  may 
be  treated  as  a  Virginia  corporation  quoad 
the  line  of  railroad  under  its  control  there, 
so  far,  at  least,  as  its  liability  to  the  citizens 
of  Virginia  is  concerned.  Baltimore  &>  O. 
A'.  Co.  V.  Noell,  32  Gratt.  (  Va.)  394. 

02.  For  Injuries  to  eiiipIoyeM.  — 
Where  the  deceased  was  employed  as  con- 
ductor of  a  train  by  a  company  operating  a 
road  under  a  lease,  and  the  injury  causing 
his  death  resulted  from  the  incompetency 
of  the  engineer  or  the  imperfection  of  the 
lessee's  engine,  the  lessee,  and  not  the 
lessor,  is  liable,  although  the  lease  was 
made  without  statutory  authority.  East 
Line  &>  A\  A'.  Ji.  Co.  v.  Culberson,  38  Am. 
d^  Eng.  /:.  Cas.  225,  72  Tex.  375,  3  L.  R.  A. 
567,  I  %•.  W.  Rep.  706.  —  Reconciling 
Macon  A.  R.  Co.  v.  Mayes,  49  Ga.  355. 
Reviewini.  Missouri  Pac.  R.  Co.  v.  Watts, 
63  Tex.  549 ;  West  v.  St.  Louis,  V.  &  T.  H. 
R.  Co.,  63  III.  545  ;  Sawyer  v.  Rutland  &  B. 
R.  Co.,  27  Vt,  370 ;  Washington,  A.  &  G.  R. 
Co.  V.  Brown,  17  Wall.  (U.  S.)  445  ;  Free- 
man V.  Minneapolis  &  St.  L.  R.  Co.,  10  N. 
W.  Rep.  594;  Aycock  v.  Raleigh  &  A.  A. 
L.  R.  Co.,  89  N.  Car.  321 ;  Balsley  v.  St. 
Louis,  A.  &  T.  H.  R.  Co.,  8  N.  E.  Rep.  859 ; 
Nelson  v.  Vermont  &  C.  R.  Co.,  26  Vt.  717. 
-Quoted  in  Trinity  &  S.  R.  Co.  v.  Lane, 
79  Tex.  643. 

63.  For  loss  of  goods.— A  railroad 
corporation  which  has  leased  a  portion  of 
another  railroad  connecting  with  its  own  is 


not  exempted  from  liability  to  the  owner  of 
goods  delivered  to  it  at  a  depot  on  the  por- 
tion so  leased  by  an  agreement  with  the 
proprietors  of  that  road  by  which  the  two 
corporations  upon  their  respective  roads 
mutually  agree  to  furnish  suitable  depot  ac- 
commodations, and  to  receive  and  deliver 
freights,  and  that  the  liability  of  the  first 
corporation  for  upward  freight  upon  the 
road  of  the  second  shall  not  commence  un- 
til delivery  on  the  cars  of  the  first.  McCliier 
V.  Manchester  &*  L.  R.  Co.,  13  Gray  (Mass.) 
124.— Distinguishing  Langley  v.  Boston 
&  M.  R.  Co.,  10  Gray  103.— Applied  in 
Humphreys  v.  St.  Louis,  I.  M.  &  S.  R.  Co., 
37  Fed.  Rep.  307. 

04.  For  iiiaiutaiuiut;  defective  or 
uiilawftil  bridges.— In  an  action  against 
the  lessees  of  a  bridge  across  a  navigable 
stream  to  recover  damages  for  injuries  to  a 
steamboat,  owing  to  the  piers  of  the  bridge 
obstructing  navigation,  the  plaintiff,  in  or- 
der to  recover,  must  show  that  the  defend- 
ant had  notice  that  the  piers  were  not  paral- 
lel with  the  current,  as  was  required  by  tiie 
act  authorizing  the  construction  of  the 
bridge  ;  but  such  notice  or  knc  .ledge  may 
be  shown  by  acts  and  circumstances,  and 
not  necessarily  by  direct  evidence.  (Bar- 
clay, J.,  dissenting.)  Silver  v.  Missouri  Pac, 
R.  Co.,  44  Am.  &^  Eng.  R.  Cas.  467, 101  Mo. 
79,  13  S.  IV.  Rep.  410.  —  Disapproving 
Plumer  v.  Harper,  3  N.  H.  88,  14  Am.  Dec. 
333.  Distinguishing  Nichols  v.  Boston, 
98  Mass.  39;  Missouri  River  Paclcet  Co.  v. 
Hannibal  &  St.  J.  R.  Co..  1  McCrary(U.  S.) 
282. 

A  railroad  company  gave  another  com- 
pany permission  to  lay  down  a  track  so  as  to 
make  a  connection  which  crossed  an  exist- 
ing bridge  which  was  also  used  by  foot  pas- 
sengers. Plaintiff  in  passing  the  bridge  fell 
between  the  rails  of  the  new  track  by  reason 
of  its  not  being  properly  covered,  and  was 
injured,  //eld,  that  if  the  lessee  company 
had  the  sole  ownership,  possession,  and  use 
of  the  track,  then  the  lessor  was  not  liable ; 
and  whether  the  lessee  had  such  possession 
and  use  of  it  was  a  question  for  the  jury. 
Gwathney  v.  Little  Miami  R.  Co.,  12  Ohio 
St.  92. 

65.  For  defective  fences,  grade 
crossings,  trestles,  antl  hotel  ap- 
proaches."' — The  statute  imposes  the  duty 

*  Duty  of  lessee  to  fence,  see  note,  19  Am.  & 
Eng.  R.  Cas.  63a. 


■i 


'J 


t 

r 


s 


*      V.i       »<'        V 


228 


LEASES,  ETC.,  00,  «7. 


f 


upon  railroad  companies  to  fence  on  both 
sides  of  their  track,  and  they  are  liable  for 
damages  done  to  cattle  so  long  as  such 
fences  are  not  made  or  kept  in  good  order ; 
and  this  liability  extends  to  lessees  operat- 
ing a  road.  Tracy  v.  Troy  <S^  />'.  R.  Co.,  38 
N.  Y.  433;  affirming  55  Barb.  529.  —  FOL- 
LOWING Clement  v.  Canfield,  28  Vt.  302.— 
Quoted  in  Burchfield  v.  Northern  C.  R. 
Co.,  57  Barb.  (N.  Y.)  589. 

A  railroad  that  is  operated  by  a  company 
under  a  perpetual  lease  is  the  road  of  the 
latter  company  within  the  meaning  of  the 
Conn,  statute  authorizing  proceedings  to 
abolish  grade  crossings.  VVesthrook  v.  Nno 
York,  N.  H.  &^  H.  K.  Co,  yj  Am.  &"  Eng. 
R.  Cas.  446,  57  Cofifi.  95,  16  AiL  Rep.  724,  17 
Af/.  Rep.  368. 

A  lessee  company  in  possession  and 
operating  a  railroad  is  liable  to  an  adjoining 
landowner  for  damages  caused  by  an  imper- 
fect trestle  causing  water  to  back  over  the 
land ;  and  such  lessee  is  not  entitled  to  no- 
tice to  remove  or  repair  the  trestle  before 
the  liability  attaches.  St.  Louis,  A.  &•  T. 
H.  R.  Co.  V.  Brown,  34  ///.  App.  552. 

A  railway  company  which  leases  ground 
near  its  roadbed  to  be  used  by  the  lessee 
for  hotel  purposes  is  under  no  implied  ob- 
ligation to  keep  in  repair  or  well  lighted 
that  portion  of  the  passway  beyond  its  plat- 
form, leading  from  its  roadbed  to  the  hotel, 
and  which  is  situated  on  the  rented  prem- 
ises. Nor  does  the  fact  that  the  ground  on 
which  the  hotel  is  erected  is  owned  by  the 
company  render  it  liable  for  injuries  which 
resulted  from  the  .lefective  or  dangerous 
construction  of  the  approaches  or  entrances 
to  the  hotel.  Texas  &•  P.  R.  Co.  v.  Man- 
gum,  30  Am.  &>  Eng.  R.  Cas.  181,  68  Tex. 
342.  4  5.  !V.  Rep.  617. 

c.  Liability  to  the  Lessor. 

66.  Generally.— Where  one  railroad 
company  has  a  contract  for  the  use  of  the 
track  of  another  company  at  a  fixed  com- 
pensation, and  continues  to  use  it  after  it 
has  notice  that  a  higher  compensation  will 
be  charged,  and  while  negotiations  are 
pending  between  the  companies  touching 
the  compensation  to  be  paid,  it  will  only  be 
required  to  pay  at  the  former  rate  for  such 
use  after  notice  given.  Farmers'  L.  &*  T. 
Co.  V.  Chicago,  P.  6m  S.  W.  R.  Co.,  18  Fed. 
Rep.  484. 

Where  a  railroad  company  only  acquires 


the  right  to  use  the  track,  for  a  certain  dis- 
tance, of  another  company,  for  a  stipulated 
rent,  with  the  provision  that  it  shall  not 
serve  the  local  traffic  on  that  part  of  the 
road,  the  duties,  rights,  and  powers  of  the 
lessee  company  are  fixed  by  the  contract, 
and  the  interstate  commerce  commission 
cannot  interfere.  Alfoni  v.  Chicago,  R.  I. 
&*  P.  R.  Co.,  2  /«/.  Com.  Rep.  771,  3  ////. 
Com.  Com.  519. 

An  agreement  by  a  railway  company  to 
erect  a  station  and  stop  its  trains  at  a  point 
of  junction  with  the  line  of  another  com- 
pany is  a  covenant  running  with  the  estate 
of  such  latter  company,  and  may  be  enforced 
by  its  lessee.  West  London  R.  Co.  v.  London 
&*  A\  IF.  R.  Co.,  1 1  C.  B.  327,  7  Rai/TO.  Cas. 
477,  17 /ur.  3CI,  22  L.y.  C.  P.  117. 

Where  a  lease  of  a  railway  contains  an 
agreement  by  the  lessee  company  to  carry 
over  it  all  traffic  between  certain  places,  and 
contains  other  provisions  on  which  no  re- 
lief can  be  obtained  in  equity,  and  contr.in- 
ing  no  negative  stipulation  restricting  the 
lessee  company  from  carrying  the  tniffic 
over  other  lines,  a  bill  by  the  lessor  com- 
pany alleging  that  the  lessee  is  carrying  the 
traffic  over  other  lines  of  its  own,  and  pray- 
ing for  an  injunction,  is  not  demurrable,  and 
the  relief  sought  may  be  granted.  IVolver- 
hampton  &*  W.  R.  Co.  v.  London  &>  A\  W. 
R.  Co.,  43  L.J.  Ch.  131,  Z..  R.  16  Eg.  433.— 
Considered  in  Donnell  v.  Bennett,  L.  R. 
22  Ch.  D.  835,  52  L.  J.  Ch.  414,  48  L.  T.  68, 
31  W.  R.  316. 

A  company  leased  its  road  to  another 
company,  the  lessee  agreeing  to  pay  as  rent 
a  certain  part  of  the  gross  earnings,  and  if 
the  rent  should  be  insufficient  to  pay  in- 
terest on  bonds,  then  the  lessee  should  ad- 
vance money  sufficient.  The  rent  was  not 
sufficient  to  pay  interest,  and  after  some 
money  was  advanced  a  supplemental  con- 
tract was  made  by  which  the  lessee  was  to 
pay  a  larger  part  of  the  earnings  as  rent,  but 
not  to  make  further  advances,  and  ail  pro- 
visions of  the  former  lease  not  modilied 
were  ratified,  and  "all  causes  of  action  (or 
breach  of  any  agreement  therein "  were 
waived  and  released.  Held,  that  any  claims 
of  the  lessee  for  moneys  advanced  were 
thereby  released.  Stewart  v.  Hoyt,  16  Am. 
*•  Eng.  R.  Cas.  513,  iii  U.  S.  373,  4  ^"P- 
Ct.  Rep.  519. 

67.  For  waste.— Where  a  railroad  com- 
pany leases  a  warehouse  with  the  privilege 
of  purchasing  it  within  a  certain  time,  if  it. 


'^,.        • 


LEASES,  ETC.,  08-70. 


229 


fails  to  exercise  the  privilege,  within  the 
time,  it  is  liable  for  waste  committed  on  the 
premises  during  the  time  that  it  is  in  pos- 
session. And  the  fact  that  the  road  was  in 
the  hands  of  a  receiver  would  not  bar  an 
action  for  waste.  Powell  v.  Dayton,  S,  &* 
G.  R.  R.  Co.,  i6  Oreg.  33,  8  Am.  St.  Rep.  251, 
16 />«<:.  Rep.  863. 

In  such  case  the  statute  of  limitations 
would  not  begin  to  run  against  an  action 
against  the  company  for  waste  until  its 
privilege  of  purchasing  under  the  lease  had 
been  extinguished  by  lapse  of  time.  Powell 
.V.  Dayton,  S.  &*  G.  R.  R.  Co.,  16  Oreg.  33, 
8  Am.  St.  Rep.  251,  .6  Pac.  Rep.  863. 

08.  For  value  of  property  lost  or 
destroyed.— A  railroad  company  leased  a 
steamboat,  the  lease  providing  that  the 
boat  was  in  good  condition,  but  that  two 
persons  should  examine  it  and  determine 
its  condition ;  but  they  failed  to  do  so,  and 
the  company  took  it  without  objection. 
Held,  that  the  company  could  not  set  up  as 
a  defense  to  an  action  for  the  loss  of  the 
boat  any  defects  which  were  known,  or 
miglit  have  been  known  by  reasonable  care 
and  diligence.  Stewart  v.  Western  Union 
R.  Co.,  \Biss.  {U.  S.)  362. 

And  where  such  boat  exploded  while 
being  run  and  was  thereby  lost,  it  is  a  ques- 
tion for  the  jury  whether  the  company  used 
reasonable  skill,  and  whether  the  explosion 
could  have  been  prevented  by  human  skill. 
Stewart  v.  Western  Union  R.  Co.,  4  Biss. 
{U.S.)  362. 

But  in  such  case,  if  the  explosion  re- 
sulted from  some  hidden  and  unknown  de- 
fect, then  the  company  was  not  liable  for 
the  loss.  Stewart  v.  Western  Union  R.  Co., 
4  liiss.  ( U.  S.)  362. 

60.  For  rent  of  land  that  becomes 
submerifed.— Appellee  leased  to  appel- 
lant a  lot  on  the  gulf  shore  for  $400  per 
annum,  payable  quarterly  in  advance.  The 
defense  was  that  since  the  execution  of  the 
lense  and  before  the  accrual  ol  the  rents 
sued  for  the  leased  property  had  been  sub- 
merged and  encroached  upon  by  the  waters 
of  the  gulf,  so  that  it  was  in  great  part 
below  ordinary  high  tide,  and  because  of 
the  cutting  away  of  the  beach  and  the 
consequent  depletion  of  the  land  it  had 
ceased  to  be  owned  by  plaintiff,  was  not 
subject  to  lease,  nor  under  private  domin- 
ion. Recovery  by  plaintiff  was  affirmed. 
Galveston  C.  R.  Co.  v.  Gulf  Land  Co.,  2 
Tex.  Civ.  App.  326,  21  5.   W.  Rep.  959. 


In  a  proper  case,  rent  for  property  totally 
destroyed  should  be  abated,  and  wliere 
there  is  a  partial  destruction  of  the  prop- 
erty, apportioned  ;  but  in  this  case  the  pur- 
pose of  the  lease  was  to  prevent  a  rival 
street-railway  company  from  using  it.  The 
lessee  knew  when  the  lease  was  made  that 
the  lot  was  about  two  thirds  under  water, 
and  was  a  daily  witness  of  the  erosion  of 
the  beach  and  the  encroachment  of  the 
water.  It  got  all  it  contracted  for,  and  the 
judgment  of  the  lower  court  was  right. 
Galveston  C.  R.  Co.  v.  Gulf  Land  Co.,  2 
Tex.  Civ.  App.  326,  21  S.  W.  Rep.  959. 

70.  Duty  to  make  repairs.— A  con- 
tract leasing  certain  premises  to  a  railroad 
was  executed  in  duplicate.  The  lease 
signed  by  the  company  provided  for  a 
stipulated  rent  in  money,  and  ordinary 
taxes,  water  rates,  and  necessary  repairs, 
with  all  alterations,  if  any  needed.  The 
copy  signed  by  the  lessor  provided  for  the 
same  rent  "  and  ordinary  taxes,  and  waier 
rates,  and  all  repairs  or  alterations  neces- 
sary." Held,  that  the  company  was  not 
obliged  to  put  the  premises  in  good  repair, 
or  to  make  repairs  or  alterations  not  neces- 
sary for  the  use  of  the  premises.  White  v. 
Albany  R.  Co.,  17  Hun  (N.  V.)  98. 

A  covenant  in  the  lease  of  a  railroad 
that  the  lessees  shall  "  return  said  road  and 
property,  both  real  and  personal,  at  the  ter- 
mination of  this  lease,  in  as  good  condition 
and  repair  in  all  respects  as  it  is  now  in, 
natural  wear  only  excepted,"  imports  that 
the  road  is  to  be  kept  in  good  running  con- 
dition during  the  term  and  returned  in 
that  condition,  and  that  all  structures, 
which  by  decay  or  accident,  become  unsafe, 
must  be  renewed  at  the  expense  of  the  les- 
sees.   Sturges  V.  Knapp,  31  Vt.  \. 

A  lease  of  a  wharf  or  pier  to  a  railroad, 
contained  covenants  by  the  lessees  to  repair 
generally,  "  reasonable  wear  and  tear  and 
accidents  by  fire  and  tempest  excepted," 
and  to  repair  after  notice  in  writing. 
The  wharf  was  damaged  by  t.ic  action 
of  the  ice  forced  against  it  by  a  high 
wind.  The  premises  were  sold  to  plaintiff 
under  an  execution  against  the  lessors,  and 
plaintiff  gave  a  written  notice  to  repair.  In 
an  act  )n  for  breach  of  the  covenants  to  re- 
pair generally  after  notice — held:  (i)  that 
the  non-repair  was  a  continuing  breach  of 
the  covenants  to  repair,  of  which  the  plain- 
tiff, as  assignee,  might  avail  himself;  (2) 
that   the   covenant  to  repair  after  notice 


rs^^^^ 


230 


LEASES,  ETC.,  71-74. 


was  subject  to  the  same  exceptions  as  were 
contained  in  the  general  covenant ;  (3) 
that  the  damage  here  sustained  could  not 
be  said  to  be  an  accident  caused  by  tem- 
pest, so  as  to  bring  it  within  the  exception. 
Thistle  V.  Union  Forwarding  &»  K.  Co.,  29 
U.  C.  C.  P.  76. 

71.  Eviction.  —  Where  a  mortgaged 
railroad  is  leased  the  mere  entering  of  a 
foreclosure  decree  during  the  term  i"  not 
an  eviction  of  the  lessee  so  long  rs  th^  de- 
cree remains  unexecuted ;  a  d  h 
set  up  such  decree  as  an  evictiu.i  irs 

mount  title,  so  as  to  entitle  him  tO  wiiii- 
liold  rent  or  to  rescind  the  lease.  Pitts- 
hiirj^,  C.  &*  S/.  L.  R.  Co.  v.  Coluhi'-us,  C.  &* 
1.  i.  A'.  Co..  8  Biss.  (U.  S.)  456. 

And  the  appointment  of  a  receiver  for 
the  road  is  not  an  eviction,  where  the  re- 
ceiver is  instructed  not  to  disturb  the  pos- 
session of  the  lessee.  Pittsburg,  C.  &*  St. 
L.  R.  Co.  v.  Columbus,  C.  &•  I.  C.  R.  Co.,  8 
Biss.  {U.  5.)  456. 

Where  a  rolling  mill  and  furnace,  to- 
gether with  a  railroad,  is  leased,  the  use  of 
the  latter  being  essential  to  the  enjoyment 
of  the  premises,  for  the  lessor  to  tear  up  the 
track  after  the  lessee  has  taken  possession 
amounts  to  an  eviction,  and  is  a  bar  to  an 
action  to  recover  the  premises  for  the  non- 
payment of  rent.  Peck  v.  Hiler,  24  Barb. 
(N.  y.)  178,  14  How.  Pr.  I SS. 

In  such  case  the  fact  of  the  lessee  having 
recovered  damages  of  the  lessor  for  a 
breach  of  the  covenant  for  the  use  of  the 
railroad,  will  not  alter  the  case,  such  cove- 
nant being  a  continuing  one.  Peci  v. 
Niler,  24  Barb.  (N.  V.)  178, 14  How.  Pr.  155. 

Where  it  is  obvious  from  the  construc- 
tion of  the  whole  lease  that  the  use  of  the 
railroad  was  intended  to  be  secured  to  the 
lessee  during  the  term  as  part  of  the  de- 
mised premises,  the  fact  that  it  was  granted 
in  the  form  of  a  covenant  and  separate 
from  the  formal  demise,  will  not  prevent 
the  enjoyment  of  the  railroad  from  forming 
part  of  the  demise.  Peck  v.  Hiler,  24  Barb. 
\n.  K.)  178,  \\H(m.Pr.  155. 

But  where  certain  premises  are  leased 
with  a  railroad  track  thereon,  if  it  appears 
that  the  lessee  did  not  wish  to  use  the 
track,  and  had  determined  to  abandon  it, 
he  could  not  claim  an  eviction  because  the 
lessor  afterwards  tore  up  the  track.  Peck 
v.  Hiler,  31  Barb.  (N.  Y.)  117. 

72.  Bight  to  remove  fixtures.— 
Upon  the  termination  of  a  lease  of  grounds 


a  railroad  company  may  remove  tracks  that 
it  has  laid  on  the  grounds.  Wiggins  Ferry 
Co.  V.  Ohio  &-  iM.  R.  Co.,  51  Am.  ^  Eng.  R. 
Cas.  82,  142  U.  S.  396,  12  Sup.  Ct.  Rep.  188. 
A  railroad  having  a  lease  of  grounds  may 
lay  a  track  and  use  it,  if  not  forbidden  by 
the  terms  of  the  lease,  and  no  waste  be  cuni- 
mitted  ;  but  the  rails  must  be  removed  be- 
fore the  lease  terminates;  and  no  easement 
is  acquired,  as  where  the  land  is  appropri- 
ated or  taken.  Heise  v.  Pennsylvania  R. 
Co.,  62  Pa.  St.  67. 

73.  Duty  efticiently  to  worli  the 
road.— If  a  line  is  leased  on  condition  that 
it  shall  be  used  and  worked  efficiently,  and 
ro  as  to  develop  the  traffic,  and  the  lessees 
;  receive  for  their  remuneration  a  fixed 
pott  „n  I  :  the  receipts,  the  obligation  to 
work  efficiently  and  to  maintain  the  traffic 
remains  the  same,  whether  the  lessees' 
working  expenses  are  above  or  below  their 
share  of  the  receipts.  Dublin  &•  M.  R. 
Co.  V.  Midland,  G.  IV.  R.  Co.,  3  Ry.  6-  C. 
T.  Cas.  379. 

A  railway  company  leasing  the  road  of 
another  company  under  a  covenant  to  "  effi- 
ciently work  and  repair  the  railway  and 
works  demised,  and  indemnify  the  iilaintitls 
against  all  liabilities,  loss,  charg<s  and  ex- 
penses, claims  and  demands,  whether  in- 
curred or  sustained  in  consequence  of  not 
working,  or  in  any  manner  connected  with 
the  working  of  the  railway  and  works  "  is 
not  bound  to  work  the  road  for  passenger 
traffic  even  if  such  traffic  presents  itself. 
IVest  London  R.  Co.  v.  London  &-  N.  W.  R. 
Co.,  II  C.  B.  327,  7  Railw.  Cas.  477,  17  Jur, 
301,  22  L.  J.  C.  P.  117. 

Although  a  lessee  of  a  railway  has  the 
power  to  compel  another  railway  company 
to  stop  its  trains  at  a  point  of  junction,  under 
an  agreement  between  the  latter  company 
and  the  lessor,  it  is  not  bound  to  exercise 
that  power  under  a  covenant  in  the  iease 
whereby  it  agreed  to  "  efficiently  work  and 
repair  the  railway  and  works  demised,  and 
indemnify  the  plaintiffs  against  all  liabilities, 
loss,  charges  and  expenses,  claims  and  de- 
mands, whether  incurred  or  sustained  in 
consequence  of  not  working,  or  in  any  man- 
ner connected  with  the  working  of  the  rail- 
way and  works."  West  London  R.  Co.  v. 
London  6-  N.  W.  R.  Co.,  11  C.  B.  327,  7 
Railw.  Cas.  477,  \y  Jur.  301,  22  L.J.  C.  P. 
117. 

74.  Duty  to  inaintnin  gates  at  farm 
crossings. — While  the  provision  of  the  N. 


*'f  """  "-«■  r^;^s« 


LKASbS,  ETC.,  75-77. 


231 


Y.  Act  of  1864  (Laws  of  1S64,  cli.  582,  ?  2), 
requiring  the  lessee  of  a  railroad  to  "  main- 
tain fences  on  the  sides  of  the  road  so 
leased  *  ♦  *  with  openings  or  gates  or  bars 
therein  at  the  farm  crossings  of  such  rail- 
road, for  the  use  of  the  proprietors  of  the 
lands  adjoining  such  railroads,"  does  not 
expressly  require  such  lessee  to  build  and 
maintain  farm  crossings,  yet  it  is  the  duty 
of  such  a  lessee  in  possession,  with  power  to 
make  repairs  and  additions,  to  construct 
necessary  farm  crossings.  Buffalo,  S.  6-  C. 
Co.  V.  Delaware,  L.  &*  W.  K.  Co.,  130  A. 
Y.  152,  29  A^.  E.  Rep.  121,  41  N.  Y.  S.  R. 
259;  affirming  27  A'.  Y.  S.  R.  216.  7  N.  Y. 
Siipp.  604. — Following  Jones  v.  Seligman, 
81  N.  Y.  190. 

This  obligation  is  not  confined  to  domes- 
tic corporations  or  those  organized  under 
the  general  railroad  act,  but  applies  to  a 
foreign  corporation  which,  under  authority 
given  to  it  by  statute,  has  leased  and  is 
operating  a  road  in  the  state,  and  has  cov- 
enanted by  its  lease  to  perform  all  things  in 
connection  with  the  road  which  the  lessor 
might  be  required  to  perform.  Buffalo,  S. 
&>  C.  Co.  V.  Delaware,  L.  &>  W.  R.  Co.,  130 
A'.  F.  152,  29  A^.  E.  Rep.  121. 41  A^.  Y.  S.  R. 
259;  affirming  vj  N.  Y.  S.  R.  216,  7  A^.  Y. 
Supp.  604. 

75.  Duty  to  pay  taxes.— Under  a 
mandate  of  the  supreme  court  that  the  pe- 
titionee be  allowed,  in  reduction  of  the  rent 
due  from  it  to  the  petitioner,  all  taxes  paid  to 
tlie  state  in  accordance  with  the  provisions 
of  No.  I,  Vt.  St.  1882,  the  petitionee  can- 
not deduct  an  amount  in  excess  of  wliat  the 
taxes  would  be  if  computed  upon  the  actual 
gross  receipts  of  the  railroad  of  the  peti- 
tioner. Vermont  <S>»  C,  R.  Co.  v.  Vermont 
C.  R.  Co.,  65  Vt.  366,  26  Atl.  Rep.  638. 

Where  by  the  terms  of  a  lease  the  lessee 
was  entitled,  from  time  to  time,  to  deduct 
from  the  rental  all  taxes  imposed  upon  the 
leased  property,  which  the  lessee  either  had 
paid  or  might  be  liable  to  pay,  and  there  was 
at  the  time  no  law  imposing  a  personal  lia- 
bility for  taxes  on  any  one,  but  any  taxes 
levied  upon  the  property  were  a  lien  upon 
\\.—held,  that  the  stipulation  amounted  to 
an  appropriation  of  a  reserved  fund  out  of 
the  rental  to  the  payment  of  the  taxes. 
McPherson  v.  Atlantic  6-  P.  R.  Co.,  66  Mo. 
103.  —  Distinguished  in  Gregg  v.  Far- 
mers &  M,  Bank,  80  Mo.  251. 

76.  Bight  to  compensation  for  tlie 
running  of  extra  trains.— One  corpora- 


tion leased  its  railroad  to  another,  which 
agreed  to  equip  it  witii  engines,  cars,  and 
other  furniture,  and  to  give  as  favorable 
accommodation  to  its  business  as  if  it 
owned  it,  and  to  run  regular  trains,  and  also 
extra  trains  when  required,  for  which  last 
it  should  be  allowed  "  the  actual  cost  of 
running  the  same  ";  and  it  was  agreed  that 
the  lessees  should  collect  the  revenues  of 
the  road  leased,  and,  before  paying  them  10 
the  lessors,  take  out  a  certain  sum  semi- 
annually for  running  the  trains  over  their 
road,  and  a  certain  proportion  of  the  bal- 
ance for  the  use  of  their  own  road  by  such 
trains.  Held,  that  the  "  actual  cost  "  of  the 
extra  trains  included  only  money  actually 
paid  out,  and  not  a  proportion  of  the  expense 
of  the  lessees'  road  or  of  the  wear  and  tear  of 
their  track.  Lexington  &*  IV.  C.  R.  Co.  v. 
Fit c/t burg  R.  Co.,  9  Gray  {Mass.)  226. 

The  lessees  were  bound  to  transport, 
without  extra  charge,  wood  and  coal  in- 
tended for  and  used  upon  that  part  of  a 
brick  yard  at  the  junction  of  the  two  roads, 
which  bordered  on  the  road  leased,  and 
which  were  drawn  over  the  lessees'  road, 
and  over  a  side  track  built  by  agreement  be- 
tween the  two  corporations,  and  in  part 
within  the  location  of  that  road.  Lexing- 
ton iSr'  IV.  C.  R.  Co.  V.  Fiichburg  R.  Co.,  9 
Gray  {Mass.)  226. 

A  further  agreement  for  an  additional  al- 
lowance to  the  lessees  for  certain  freight  for 
a  specified  time,  having  been  "continued  by 
mutual  consent  "  until  a  later  date,  did  not 
entitle  the  lessees,  after  that  date,  to  any 
compensation  beyond  that  stated  in  the 
original  agreement.  Lexington  &•  IV.  C. 
R.  Co.  V.  Fitchburg  R.  Co.,  9  Gray  {Mass.) 
226. 

77.  Lease  of  coal  lands— Duty  to 
pay  for  waste  coal.— A  corporation 
leased  certain  coal  lands,  agreeing  to  pay  so 
much  a  ton  for  all  merchantable  coal "  exclu- 
sive of  culm  or  mine  waste  that  will  pass 
through  a  mesh  \  inch  square."  At  the 
time  the  lease  was  made  there  was  no  mar- 
ket for  such  waste  coal,  but  during  the  term 
it  was  further  separated  so  as  to  give  it  a 
market  value,  and  a  large  amount  of  it  was 
sold.  Held,  that  the  company  was  not 
obliged,  under  the  lease,  to  utilize  the  waste, 
but  having  done  so,  it  must  account  there- 
for to  the  lessor.  (Van  Brunt, P.  J. .dissents.) 
Genet  v.  Delaware  &*  H.  Canal  Co.,  35  N. 
Y.  S.  R.  552,  58  Hun  492;  see  12  N.  Y. 
Supp.  572. 


288 


LEASES,  ETC.,  78-80. 


'^ 


w 


78.  Right  of  way  over  oonl  Iniids 
— lliglit  to  8IIV  lor  iiitvrriii>tioii  of 
niiuiiig. — Where  a  railroad  company  has 
the  right  of  way  over  mining  lands,  and 
covenants  with  the  owner  thereof  that  upon 
notice  it  will  change  its  location,  or  permit 
the  coal  underneath  the  way  to  be  mined,  a 
tenant  of  such  owner,  the  terms  of  whose 
lease  give  him  the  rigl;t  to  mine  all  the  coal 
in  the  land  demised,  may  sue  in  the  name 
of  the  landlord  for  breach  of  such  covenant. 
A/itte  Hill  (S-  S.  H.  R.  Co.  v.  Lippincott,  86 
Pa.  St.  468. 

The  removal  of  a  railroad  to  another  loca- 
tion on  the  same  land,  in  such  a  case,  was 
merely  contractual,  and  involved  no  exer- 
cise of  the  power  of  eminent  domain,  and  is 
not  within  the  decisions  holding  that  the 
power  of  location  when  once  exercised,  is 
exhausted,  and  the  railroad  was  therefore 
liable  in  damages  for  the  breach  of  its  cov- 
enant. Mine  Hill  .S-  S.  H.  R.  Co.  v.  Lip- 
pincott, 86  Pa.  St.  468. 

The  measure  of  damages  under  such  cir- 
cumstances was  the  value  of  the  coal  which 
was  left  standing,  so  as  not  to  let  down  the 
surface,  and  a  verdict  for  these  damages  in 
solido  may  be  apportioned  by  the  jury  be- 
tween the  landlord  and  the  tenant.  Mine 
Hill  &^  S.  H.  R.  Co.  v.  Lippincott,  86  Pa. 
St.  468. 

The  tenant,  under  the  terms  of  such  a 
lease,  does  not  part  with  his  right  to  dam- 
ages for  the  breach  of  covenant  on  the  part 
of  the  railroad,  because  he  had  sold  "all  of 
his  right,  title,  and  interest "  in  the  colliery. 
Mine  Hill  &•  S.  H.  R.  Co.  v.  Lippincott,  86 
Pa.  St.  468. 

The  fact  that  the  landlord,  after  suit 
brought  by  the  tenant,  released  all  his  right 
under  his  contract  with  the  railroad  com- 
pany would  not  affect  the  right  of  the  ten- 
ant, but  would  reduce  that  portion  of  the 
verdict  which,  in  the  apportionment  by  the 
jury,  was  allowed  to  the  landlord.  Mine 
Hill  &•  S.  H.  R.  Co.  V.  Lippincott,  86  Pa,  St. 
468. 

d.  Ratification  and  Part  Performpnce. 

79.  What  amounts  to  a  ratifica- 
tion.— A  corporation,  like  a  natural  per- 
son, may  ratify  any  act  which  it  can  per- 
form ;  and  the  entry  into  the  possession  of 
a  leased  road  in  pursuance  of  a  lease  exe- 
cuted by  its  officers  without  due  authority, 
and  operating  the  same  and  paying  the  rent 


therefor,  as  reserved  in  said  lease,  is  ample 
evidence  of  the  ratification  thereof.  Ore- 
gon R.  Co.  V.  Orejfon  R.  »>»  N.  Co.,  28  /'<■</. 
Rep.  505,  12  Saw_y.  {U.  S.)  109.  Co.ve  v. 
Camden  &^  A.  R.  Co.,  17  J'/tila.  (Pa.)  349. 

The  fact  that  the  legislature,  after  an  un- 
authorized lease  was  made,  passes  a  statute 
forbidding  tlie  directors  of  the  company, 
its  lessees  or  agents,  from  collecting  more 
than  a  fixed  amount  of  compensation  for 
carrying  passengers  and  freight,  is  not  a 
ratification  of  the  lease  or  an  acknowledg- 
ment of  its  validity.  Thomas  v.  West  Jer- 
sey R.  Co.,  101  U.  S.  71.— Approved  in 
Rickeits  v.  Chesapeake  &  O.  R.  Co.,  41 
Am.  &  Eng.  R.  Cas.  42,  33  W.  Va.  433,  7  L. 
R.  A.  354,  10  S.  E.  Rep.  Soi.  DiSTiN- 
GUISHKU  IN  Arrowsmith  v.  Nashville  &  D. 
R.  Co.,  57  Fed.  Rep.  165.  Quoted  in 
United  States  v.  Trans-Missouri  Freight 
Assoc,  53  Fed.  Rep.  440;  Naglee  v.  Alex- 
andria &  F.  R.  Co.,  32  Am.  &  Eng.  R.  Cas. 
401,  83  Va.  707. 

80.  Estoppel  by  part  perfornmnco. 
— Where  one  company  leases  a  railroad  for 
a  long  term,  and  other  companies  guarantee 
the  performance  of  the  lease,  and  the  road 
is  run  for  ten  years  under  the  lease,  the  les- 
see and  guaranteeing  companies  are  not 
thereby  estopped  from  repudiating  the  lease 
as  being  void  for  a  want  of  power  to  make 
it.  Pennsylvania  R.  Co.  v.  St.  Louis,  .^.^S^» 
T.H.  R.  Co..  24  Am.  &-  Eng.  R.  Cas.  58, 
118  U.  S.  290,6  Sup.  Ct.  Rep.  1094.— Re- 
viewed IN  Union  Pac.  R.  Co.  v.  Chicago, 
R.  I.  &  I^■  R.  Co.,  51  Am.  &  Eng.  R.  Cas. 
162,  51  Fed.  Rep.  309,  10  U.  S.  App.,  98,  2 
C.  C.  A.  174. 

Wliere  an  unauthorized  lease  has  been 
made  for  a  long  term,  and  carried  out  for 
several  years,  the  lessee  may  refuse  to  con- 
tinue its  performance,  and  he  will  not  be 
estopped  on  the  ground  that  it  is  an  exe- 
cuted or  partly  executed  contract.  Oregon 
R.  (S^  A\  Co.  V.  Oregonian  R.  Co.,  ■y)  Am.  Sir' 
Eng.  R.  Cas.  176,  130  C/.  S.  i,  9  Sup.  Ct. 
Rep.  409.— Dkstinguished  in  Pittsburgh, 
C.  &  St.  L.  R.  Co.  V.  Keokuk  &  H.  B.  Co.. 
39  Am.  &  Eng.  R.  Cas.  213,  131  U.  S.  371 ; 
Eastern  Townships  Bank  v.  St.  Johnsbury  & 
L.  C.  R.  Co.,  40  Fed.  Rep.  423.  Followed 
IN  Oregon  R.  &  N.  Co.  7/.  Oregon ian  R.  Co., 
145  U.  S.  52.  Reviewed  in  Union  Pac.  R. 
Co.  V.  Chicago,  R.  I.  &  P.  R.  Co.,  51  Am. 
&  Eng.  R.  Cas.  162,  51  Fed.  Rep.  309,  10  U. 
S.  App.  98,  2  C.  C.  A.  \T\.— Oregon  R.  (^ 
N.  Co.  V.  Oregonian  R.  Co,,  145  U.  'S.  52,  12 


f 


LEASES,  ETC.,  81-84. 


233 


Sup.  Ct.  Rep.  814.— Following  Oregon  R. 
&  N.  Co.  V.  Oregonian  R.  Co..  130  U.  S.  i. 

When  a  transaction  is  complete  and  tlie 
party  seeking  relief  has  performed  on  his 
part,  the  plea  of  ultra  vires  by  the  corpora- 
tion which  has  acquiesced  in  it  is  inadmis- 
sible in  an  action  brought  against  it  for  not 
performing  its  side  of  the  contract,  in  all 
tliose  instances  where  the  party  who  has 
performed  cannot,  upon  rescission,  be  re- 
stored to  his  former  status.  Camden  (S-  A. 
R.  Co.  V.  May's  Landing  &*  E.  H.  C.  A'.  Co., 
48  X.  J.  L.  530.  7  .///.  Rep.  523.— Distin- 
guishing Thomas  v.  West  Jersey  R.  Co., 
loi  U.  S.  71.  Following  WoodruflE  v. 
lirie  R.  Co.,  93  N.  Y.  609.  Reviewing 
Asiibury  R.  C.  &  I.  Co.  v.  Riche,  L.  R.  7  H. 
L.  Cas.  653;  Bissell  v.  Michigan  S.  &  N.  I, 
K.  Co.,  22  N.  Y.  258. 

81.  Part  perforiiiaucc  as  affecting 
right  to  rcsciiiil. — A  stipulation  in  a 
railroad  lease  that  the  lessor  company  was 
to  "  arrange,  provide  for,  adjust,  and  classify 
its  indebtedness  "  is  a  stipulation  in  sub- 
stance which  it  must  perform ;  and  the  les- 
see is  not  bound  to  wait  for  an  indefinite 
or  unreasonable  time  for  such  arrangement 
to  be  effected.  But  if  the  lessee  acts  under 
the  lease  before  Such  indebtedness  is  classi- 
fied and  arranged,  a  court  will  refuse  to  de- 
cree a  rescission  of  the  lease  at  the  applica- 
tion of  the  lessee  without  giving  the  lessor 
a  reasonable  time  to  comply  with  the  lease. 
And  the  court  fixed  eight  months,  under  the 
circumstances  of  the  case,  as  a  reasonable 
time.  Pittsburg,  C.  &•  St.  L.  R.  Co.  v. 
Columbus,  C.  &•  I.  C.  R.  Co.,  8  Biss.  { I/.  S.) 
456. 

e.  Assigning  and  Subletting, 

82.  What  amounts  to  an  assign- 
inent.— A  lease  of  all  the  property,  rights, 
and  franchises  of  a  railroad  is  such  a  gen- 
era! assignment  as  will  bind  the  person 
tai<ing  thereunder  as  assignee  of  a  lease 
made  to  the  road,  if  the  assignee  accepts 
the  assignment  by  entering  into  possession. 
£i/:er  v.  Chicago,  B.  <S-  Q.  R.  Co.,  i  Am.  S-* 
£»g.  A*.  Cas.  357,  8  Mo.  App.  223 ;  Indian- 
apolis Mfg.  (S^  C.  Union  v.  Cleveland,  C,  C. 
^  /.  A'.  Co.  45  And.  281. 

83.  Uatiiicutiou  by  lessor. — A  lease 
of  certain  railroad  tracks  and  terminal  facili- 
ties provided  that  it  should  be  binding  on 
tlie  "  lessees,  assigns,  grantees,  and  succes- 
sors" of  each  party.  By  various  consolida- 
tions and  leases  the  property  came  into  the 


hands  of  a  third  company,  which  the  lessor 
recognized  for  more  than  a  year,  granting 
it  all  the  privileges  secured  by  the  lease, 
without  questioning  its  interest  in  the  prop- 
perty,  when  a  bill  was  filed  to  determine 
certain  questions  growing  out  of  a  construc- 
tion of  the  lease.  A/eld,  that  the  lessor 
could  not  for  the  first  time  question  the 
legality  of  such  company's  successorship  to 
the  property.  Chicago,  R.  I.  &•  /*.  R.  Co. 
v.  Denver  &*  R.  G.  R.  Co.,  50  Am.  (S-  Eng. 
R,  Cas.  60,  143  U.  S.  596,  12  Sup.  Ct.  Rep. 
479 ;    modifying  and  affirming  45  Fed.  Rep, 

304- 
84.  Liability  of  assignee  to  lessor. 

— Where  a  contract  is  entered  into  between 
two  companies  by  which  one  obtains  cer- 
tain running  and  terminal  privileges  from 
the  other,  and  another  company  succeeds  to 
the  property  and  franchises  of  the  lessee, 
and  the  lease  is  thereafter  recognized  and 
acted  on,  the  lessor  can  recover  a  reason- 
able compensation  for  use  and  occupation, 
and  no  special  contract  or  formal  assign- 
ment of  the  lease  is  necessary.  Jacksonville, 
L.  6-  St.  L.  R.  Co.  v.  Louisville  &*  N.  R.  Co., 
47  ///.  App.  414. 

Where  a  company,  as  the  assignee  of  a 
lease  which  permitted  the  construction  of  a 
railroad  track  across  the  leased  premises, 
and  provided  for  the  forfeiture  of  the  lease 
in  default  of  payment  of  the  rent,  entered 
upon  the  premises  and  constructed  its 
tracks  thereon,  and  subsequently  refused  to 
pay  the  rent,  the  lessor  may  maintain  eject- 
ment against  the  company,  and  can  do  so 
without  entry  or  demand  of  possession. 
Avery  v.  Kansas  City  &»  S.  R.  Co.,  113  A/o. 
561,  21  S.  JV.  Rep.  90. —Quoting  McClellan 
V.  St.  Louis  &H.  R.  Co.,  103  Mo.  296.  Re- 
viewing Hubbard  w.  Kansas  City,  St.  J.  & 
C.  B.  R.  Co.,  63  Mo.  70;  Kanaga  v.  St. 
Louis,  L.  &  W.  R.  Co.,  76  Mo.  207;  Horton 
V.  New  York  C.  &  H.  R.  R.  Co..  12  Abb.  N. 
Cas.  (N.  Y.)  30. 

A  lease  was  made  to  one  as  trustee  for  a 
partnership,  and  for  an  incorporated  railroad 
company,  which  was  to  succeed  such  part- 
nership. The  trustee  and  partnership  en- 
tered into  an  agreement  that  the  former 
should  assign  his  lease  to  the  latter,  and 
that  the  latter  would,  and  thereby  did,  as- 
sume the  covenants  of  the  lease  for  them- 
selves and  for  the  corporation  to  succeed 
them.  Subsequently  the  corporation 
agreed  to  assume  the  covenants,  took  an  as- 
signment of  the  lease,  and  entered  into  pos- 


i  ' 


?''M 


234 


LEASES,  ETC.,  85-88. 


session  of  the  leased  premises.  Held,  that 
the  lessor  could  niaiiUain  an  action  a^^ainst 
tlie  corporation  to  enforce  the  covenants 
in  tlie  lease.  Van  Sc/iaick  v.  Third  Ave. 
R,  Co.,  38  A'.  Y.  346 ;  ajfirmiiig  49  Ihirb. 
409. 

85.  Yiolntioii  ul'  a{;rcciiieiit  nut  to 
aN»lfj"«— Where  a  lease  contains  a  clause 
against  an  assignment  of  the  lease  without 
the  written  consent  of  the  landlord,  if  the 
lease  is  assigned  without  such  consent,  the 
assignee  is  chargeable  with  notice  of  the 
terms  of  the  lease,  and  if  the  landlord 
does  not  accept  rent  for  occupancy  of  the 
premises  after  assignment,  he  will  not  be 
estopped  from  claiming  a  forfeiture  of  the 
lease  by  reason  of  the  assignment.  Indian- 
apolis Mfg.  &*  C.  Union  v.  Cleveland,  C,  C. 
&•/.  A'.  C0..4S  /«'/•  281. 

A  covenant  by  the  lessee  of  a  railroad  not 
to  assign  the  road  is  broken  by  his  assign- 
ment of  the  future  gross  earnings  of  the 
road  to  a  third  person,  and  contracting  to 
use  and  operate  it  under  the  direction  of  the 
assignee.  (Allen,  Blodgett,  and  Bingham, 
J  J.,  dissenting.)  Boston,  C,  &>•  Af.  R.  Co.  v. 
L'os/on  &•  L.  R.  Co.,  51  Am.  &-  Eng.  R.  Cas. 
106,  65  N.  H.  393,  23  At  I.  Rep.  529. 

A  lease  of  A.'s  road  tc  B,  is  not  made  de- 
pendent upon  the  validity  and  continuing 
existence  of  a  lease  of  C.'s  road  to  B.,  by 
a  covenant  that  A.  shall  receive  from  B. 
a  monthly  statement  of  the  gross  receipts 
of  C.'s  road,  and  shall  have  an  opportunity 
to  inspect  its  books  and  accounts.  Boston, 
C.  <S-  M.  R.  Co.  V.  Boston  6-  L.  R.  Co.,  ^i 
Am.  &*  Eng.  R.  Cas.  106,  65  N.  H.  393,  23 
At  I.  Rep.  529. 

A  clause  in  a  contract  leasing  to  the  St. 
Louis  company,  its  successors  and  assigns, 
the  right  to  build  a  track  on  land  of  the 
Pacific  company  connecting  the  main  tracks 
of  the  two  lines  provided  that  none  of  the 
rights  or  privileges  thereby  granted  should 
be  transferred,  assigned,  or  sublet  to,  or  per- 
mitted to  be  used  or  enjoyed  by,  any  other 
company  or  corporation.  Held,  that  such 
clause  only  restrained  a  transfer  of  track 
over  its  land  or  an  assignment  of  its  use  in- 
dependently of  the  St.  Louis  company,  but 
was  not  intended  to  prevent  the  right  or 
privilege  granted  passing  to  an  assignee  of 
the  railroad  of  the  St.  Louis  company  as  a 
part  of  such  railroad.  Mintuapolis  &^  St. 
L.  R.  Co.  v.  St.  Paul,  M.  &>  M.  A'.  Co.,  26 
Am.  &>  Eng.  R.  Cas.  638,  35  Afinn.  265,  28 
N.  IV.  Rep.  705. 


8U.  When  liability  of  ICHHoe  for 
rent  cciiHeM.— An  unincorporated  asso- 
ciation or  partnersliip  was  formed  to  build 
a  street  railway.  An  individual  took  a 
lease  of  certain  premises  in  his  own  name 
for  the  benefit  of  this  association,  the  obli- 
gations of  which  lease  the  association  as- 
sumed. Subsequently  a  corporation  was 
formed,  composed  in  part  of  the  members  of 
the  association  and  other  persons,  and  took 
a  general  assignment  of  all  the  property  of 
the  association,  and  of  the  lease  in  question, 
and  for  several  years  occupied  the  premises 
and  paid  rent,  when  the  corporation  sold  all 
of  its  property  and  assigned  the  leased 
premises  to  third  parties.  Held,  that  the 
liability  of  the  corporation  for  rent  ceased 
when  it  made  the  assignment  and  ceased  to 
use  the  premises  ;  and  it  could  not  be  held 
as  cestui  que  trust.  Van  Schaick  v.  Third 
Ave.  R.  Co.,  25  How.  Pr.  (N.  Y.)  446;  re- 
versing  30  Barb.  189,  8  Abb.  Pr.  380. 

87.  Rights  of  lessees  and  their 
assignees.— Where  one  not  the  lessee  is  in 
possession  of  leased  premises,  the  presump- 
tion is  that  he  is  in  as  assignee  of  the  lease, 
and  the  burden  is  on  him  to  show  the  char- 
acter of  his  possession.  Ecker  v.  Chicago, 
B.  6-  Q.  R.  Co.,  I  Am.  &*  Eng.  R.  Cas.  357, 
8  Mo.  App.  223. 

A  sublessee  company  in  possession  of  a 
railroad,  and  operating  it  for  its  own  bene- 
fit, is  a  lessee  within  the  meaning  of  New 
York  General  Railroad  Act  of  1850,  as 
amended  in  1864,  and  as  such  is  liable  for 
live  stock  killed  on  the  track  by  reason  of  a 
failure  to  maintain  proper  fences  and  cattle- 
guards.  Burchfieldv.  Northern  C.  R.  Co., 
57  Barb.  {N.  Y.)  589.— QUOTING  Tracy  v. 
Troy  (S-  B.  R.  Co..  38  N.  Y.  437- 

Where  a  railway  company  which  had  an 
agreement  with  another  company,  giving  it 
the  right  to  use  a  portion  of  its  line,  leased 
its  road  with  all  powers,  privileges,  and  all 
benefit  to  be  derived  from  such  agreement 
to  the  third  company,  the  agreement,  under 
the  special  and  general  acts  in  question,  was 
binding  upon  the  lessee  company  and  upon 
the  company  whose  line  was  to  be  used, 
and  the  lessee  was  entitled,  as  against  such 
company,  to  stand,  in  respect  of  the  agree- 
ment, in  the  situation  of  the  lessor.  Lon- 
don &'  S.  W.  R.  Co.  v.  South  Eastern  R.  Co., 
8  Ex.  584,  22  L.J.  Ex.  193. 

88.  Right  of  a  licensee  to  sublet. 
—Where  an  arrangement  by  which  one  rail- 
road has  a  right  to  use  the  track  of  another 


LEASES,  ETC.,  80-01. 


235 


for  hire  constitutes  a  mere  license,  it  lias  no 
rijjlii  to  sublet,  or  to  convey  to  another 
company  tlie  privilege  of  usiny  the  tnick  in 
common  with  itself.  Coney  /sliiud  &^  //.  R. 
Co.  V.  Brooklyn  Cable  Co.,  53  Iliin  {N.  Y.) 
169,  25  N.  Y.  S.  a:  323.  6  A'.  Y.  Supp. 
108. 

HI).  Where  a  lc8Heo  coiiipniiy  IcnHCH 
Uh  roml. — A  company  leased  its  railroad 
for  forty  years,  and  a  year  later  the  lessee 
company  leased  its  road  to  defendant  com- 
pany for  twenty  years,  with  the  privilege  of 
making  the  lease  perpetual,  defendant 
agreeing  to  assume  the  lease  of  the  former 
road.  Held,  that  the  assumption  of  tliis 
lease  by  defendant  created  no  direct  obliga- 
tion to  the  lessor  of  the  first  road  leased 
which  could  be  enforced  in  an  action  at  law, 
but  it  might  be  enforced  in  equity.  Jesup  v. 
Illinois  C.  A'.  Co.,  43  Fetl.  Rep.  483. 

In  such  case  defendant  elected  to  surren- 
der the  road  at  the  expiration  of  the  twenty 
years.  Held,  that  this  did  not  bind  it  for 
the  rent  of  the  first  road  leased  after  the 
time  of  tlie  surrender.  Jemp  v.  Illinois  C. 
R.  Co.,  43  Fed.  Rep.  483. 

The  president  of  the  first  road  leased  in- 
dorsed on  the  company's  bonds  that  defend- 
ant had  assumed  the  lease,  and  that  the 
rent  to  be  paid  was  more  than  sufficient  to 
meet  the  interest  on  the  bonds;  but  this 
seemed  to  be  without  the  instance  or  direc- 
tion of  defendant.  Held,th&t  such  indorse- 
ments did  not  prevent  defendant  from  de- 
nying its  liability  on  such  lease  after  it 
surrendered  the  property.  Jesup  v.  Illinois 
C.  R.  Co.,  43  Fed.  Rep.  483. 

As  between  the  original  lessor  and  lessee, 
the  fact  that  the  directors  of  the  lessee 
failed  to  make  the  continuance  of  the  lease 
dependent  on  the  construction  of  the  road 
into  the  state  of  Minnesota,  with  connec- 
tions with  the  principal  cities  of  that  state, 
as  was  expected  at  the  time  the  lease  was 
made,  but  which  was  never  carried  out,  's 
not  sufficient  to  warrant  a  presumption  of 
fraud  on  the  part  of  such  directors  in  exe- 
cuting the  lease.  Jesup  v.  Illinois  C.  R. 
Co.,  43  Fed.  Rep.  483. 

Neither  will  fraud  be  presumed  against 
such  directors  because  the  rent  stipulated 
for  turned  out  to  be  larger  than  the  business 
over  the  leased  road  really  justified,  where 
the  evidence  shows  that  the  rent  was  fixed 
after  a  report  by  competent  and  disinter- 
ested persons.  Jesup  v.  Illinois  C.  R.  Co., 
43  F(d.  Rep.  483. 


5,  Joint  Liability  oj  Lessor  and  Lessee,* 

00.  Fur  (laiiiii(;cM  rvMiiltiiiK  from 
couMtriictioii  ut'  road.— Where  one  r.iil- 
road  is  conveyed  or  leased  to  another,  the 
vendee  or  lessee  is  jointly  liable  with  the 
original  owner  or  lessor  for  damages  result- 
ing from  a  permanent  injury  to  property 
causct!  by  the  construction  (jf  the  roail. 
Sticki J  v.  Cltcsapeake  6>»  O.  R.  Co.,  52  .////. 
(S^  Eng.  R.  Cas.  56, 93  Ay.  323,  20  >".  11'.  Rep. 
261.— Al'i'RuviNG  Liitle  Miami  R.  Co.  7>. 
Hambleton,  40  Ohio  St.  496,  14  Am.  &  Hng. 
R.  Cas.  126.  Revikwing  Louisville  &  N. 
R.  Co.  V.  Orr,  91  Ky.  109,  15  S.  W.  Rep.  8. 

Where  one  com()any  raises  the  grade  of  a 
street  and  lays  an  additional  track  tliereon, 
and  another  takes  possession  of,  and  contin- 
ues the  permanent  use  of  the  same,  the 
companies  are  jointly  liable  for  a  permanent 
injury  to  adjoining  property  resulting  there- 
from, and  also  for  any  temporary  injury 
occurring  after  the  lease  from  causes  cre- 
ated by  the  lessor  and  continued  by  the 
lessee.  Little  Miami  R.  Co.  v.  Hambleton, 
14  Am.  &*  Eng.  R.  Cas.  126, 40  OAio  St.  496. 

01.  For  ilaiiiages  rcHiiltiii];  from 
operation  of  road.— While  the  company 
owning  a  railway,  its  engines,  cars,  and 
equipments,  may  be  liable  to  a  party  in- 
jured through  the  negligence  of  the  ser- 
vants of  its  lessee  operating  the  same,  the 
lessee  company  is  also  liable.  Pennsylvania 
Co.  v,  Sloan,  35  Am.  &*  Eng.  R.  Cas.  440, 
125  ///.  72,  17  N.  E.  Rep.  37;  affirming  24 
///.  App.  48. 

If  a  train  of  cars  of  one  company,  run- 
ning on  the  road  of  another  company,  be 
under  the  exclusive  control  of  the  servants 
of  the  latter,  the  latter  is  liable  for  all  dam- 
ages occurring  through  negligence.  But  if 
the  servants  of  both  companies  jointly  con- 
trol the  train,  both  companies  are  liable. 
Nashville  &*  C.  R.  Co.  v.  Carroll,  6  HeisJt. 
(Tenn.)  347,  12  Am.  Ry.  Rep.  20.— Ap- 
proved IN  East  Tenn.,  V.  &  G.  R.  Co.  v. 
Fain,  19  Am.  &  Eng.  R.  Cas.  102,  12  Lea 
(Tenn.)  35. 

When  a  railroad  is  owned  by  one  com- 
pany, and  is,  without  authority  of  law, 
leased  to  another  company,  both  are  liable 
for  injuries  inflicted  wrongfully  by  the  les- 
see: the  company  owning  the  original  fran- 
chise because   it  could   not  relieve  itself. 


I 
i 


*  Liability  of  lessor  and  lessee  for  negligence, 
etc.,  see  note,  32  Am.  &  Eng.  R.  Cas.  410. 


^m^ 


1/  ^  ^ 


230 


LEASES,  ETC.,  02-00. 


without  legislative  permission,  from  liabil- 
ity for  the  acts  and  default  of  its  lessee,  and 
the  lessee  because  of  its  actual  operation  of 
the  road.  Intcrmitiomxl  &•  G.  A'.  A'.  Co.  v. 
Uiitiham,  31  Am.  <S>»  E»g.  A'.  Cas.  530,  68 
Tix.  231.45.  IV.  /iV/».  472. 

OU.  When  luMHur  not  u  iiveuMHtiry  <le- 
IfUilunt.— Where  a  suit  is  brought  against 
a  C(jnipany  which  operates  another's  road 
under  a  lease,  for  refusing  to  receive  goods 
and  transport  them  over  the  leased  line, 
there  is  no  necessity  to  make  the  lessor 
company  a  defendant.  Central  A'.  Co.  v. 
Logan,  30  Am.  &>  Eng.  K,  Cas,  63,  77  Oa. 
804,  2  S.  E,  Rep.  465. 

6.  Leasing  Mortgaged  A'oads. 

Ot't.  Wlicu  iiiurtKage  ducM  not  de- 
fcut  power  to  lease.— Under  section  13 
of  Mass.  St.  of  1876,  ch.  336,  the  Eastern  R. 
Co.  has  merely  power  to  sell  property  not 
needed  for  the  operation  of  its  railroad, 
and  to  apply  the  proceeds  to  a  sinking  fund, 
but  is  not  bound  to  make  sales  of  it;  and  it 
is  no  objection  to  a  lease  of  its  property  to 
another  railroad  company,  under  the  St.  of 
1880,  ch.  205,  that  the  lease  includes  such 
property,  and  thereby  prevents  the  pro- 
ceeds of  sales  being  applied  to  the  sinking 
fund.  Phillips  v.  Eastern  A'.  Co.,  22  Am. 
&•  Eng.  A\  Cas.  247,  138  Mass.  122. 

By  the  terms  of  what  were  known  as 
"income  mortgage  bonds"  of  a  railroad, 
the  interest  payable  was  subject  to  the  con- 
dition that  the  entire  earnings  of  the  rail- 
road, after  deducting  the  operating  ex- 
penses and  interest  on  liens  and  indebted- 
ness, should  suffice  to  pay  the  interest  upon 
the  bonds.  The  coupons  upon  the  bonds 
contained  the  same  condition.  The  prop- 
erty mortgaged  included  not  only  the  rail- 
road and  its  branches,  with  the  franchise, 
but  all  property  and  privileges  then  owned 
by  the  company,  or  which  might  thereafter 
be  owned  or  acquired  by  it;  and  the  mort- 
gage stipulated  that  another  mortgage  or 
assurance  should  be  given  upon  after- 
acquired  property,  if  requested.  Held,  that 
by  the  terms  of  the  mortgage  and  bonds 
the  parties  contemplated  that  the  directors 
should  have  power  to  manage  and  extend 
the  road  in  the  usual  manner  and  were  not 
precluded  from  exercising  the  power  pos- 
sessed by  them,  of  leasing  the  road  to  an- 
other company  upon  terms  which  rendered 
the  lessee  responsible  for  mortgages  by  the 


lessor  (such  responsibility  being  by  way  of 
rent),  and  that  the  fact  that  the  lease  would 
reduce  the  amount  available  for  the  pay- 
ment of  the  coupons  of  the  "  income  mort- 
gage bonds  "  did  not  constitute  any  breach 
of  contract  between  the  bondholders  and 
the  mortgagor.  Uaf  v.  Ogdenshogh  &>  L. 
C.  A'.  Co.,  35  yhn.  &■>  Eng.  A'.  Cas.  102,  107 
A'.  J'.  129.  13  N.  E.  Rip.  765,  II  A'.  Y.  S.  R. 
335 ;  reversing  42  Iliin  654,  4  A'.  }'.  .V.  R, 
772.— Ai'i'K(JVKi)  IN  Thomas  v.  New  York 
&G.  L.  R.  Co..  139  N.  Y.  163. 

04.  Authority  of  iiiortKnKC  trus- 
tees to  h'ase. — Where  mortgage  trustees 
are  in  possession  of  a  road  after  foreclos- 
ure, their  duly  as  to  the  management  of 
the  road  must  be  performed  so  as  to  meet 
all  the  incidents  of  the  case,  taking  into 
account  the  nature  of  the  property,  the 
public  demands  upon  those  who  operate 
the  road,  and  the  duty  of  securing  ilie 
greatest  permanent  return  for  the  cesliiis 
que  trust,  the  nature  of  the  property,  and 
the  extent  of  its  equipment;  and  in  view  of 
all  these  conditions,  if  it  seems  best  to  lease 
the  road,  the  trustees  are  authorized  t<j  do 
so.    Sturges  v.  Knapp,  31  Vt.  i. 

The  lease  of  a  road  by  mortgage  trustees 
in  possession,  for  a  term  of  ten  years,  con- 
taining a  condition  of  defeasance,  enabling 
a  majority  in  amount  of  the  bondholders  to 
terminate  it  in  one  year  by  notice,  will  not 
be  set  aside  in  a  court  of  chancery,  at 
the  suit  of  bondliolders,  as  exceeding  the 
powers  of  the  trustees,  as  to  the  term,  as  it 
is  well  known  that  a  lease  for  a  long  term 
can  be  made  on  more  favorable  terms  than 
a  lease  for  a  shorter  term.  Sturges  v. 
K'napp,  31   Vt.  I. 

05.  When  lessee  should  be  party 
to  foreclosure  suit.— Where  a  suit  is 
commenced  to  foreclose  a  railroad  mort- 
gage, and  the  defendant  corporation  sets 
up  that  the  road  is  leased,  and  that  if  the 
lessee  had  properly  used  the  earnings  of 
the  road,  as  it  should  have  done,  the  mort- 
gaged debt  would  have  been  paid,  it  is 
proper  to  bring  in  the  lessee  and  compel  it 
to  account.  Chamberlain  v.  Connecticut  C. 
R.  Co.,  54  Conn.  472,  4  A^.  Eng.  Rep.  477,  9 
Atl.  Rep.  244. 

00.  AVlien  leased  property  not  sul)- 
jeet  to  niortga{;e  lien.— A  company  in 
Iowa  executed  a  mortgage  on  all  its  prop- 
erty then  owned  and  that  might  thereafter 
be  acquired.  Afterwards  it  leased  certain 
cars,  under  a  written  contract  which  was 


Her 


LEASES,  ETC.,  0T,»8. 


Vit 


/CT  recorded.  Later  the  roud  went  into 
..e  hands  of  a  receiver  pciidiny  a  fore- 
closure. The  receiver  took  possession  "f 
the  leased  cars  with  the  otlier  property. 
//M;  (I)  under  the  laws  of  that  state,  that 
the  failure  to  record  the  lease  did  not  ren- 
der the  cars  subject  to  the  lien  of  the  niort- 
gajjc;  (2)  that  the  owner  of  the  cars  was 
entitled  to  possession,  and  compensation 
for  the  time  the  receiver  used  the  cars. 
Mej'ir  ".  IVesUrn  Car  Co.,  2  Ant.  &•  Enf;. 
R,  Cas.  375,  to2  (/.  S.  i.  — DisTiNUUisHKl) 
IN  Hand  v.  Savannah  &  C.  K.  Co.,  17  So. 
Car,  319. 

07.  lliKlit  of  luortt^nKces  to  rents. 
—The  lessee  of  a  railroad,  after  paying 
rent  flue,  may  appropriate  the  rest  of  its 
earninfjs  to  the  payment  of  interest  on 
bonds,  or  to  the  improvement  of  the  road, 
id  is  not  bound  to  keep  the  surplus  to 
meet  future  demands  for  rent.  iV.  Louis, 
A.  <S-  T.  H.  A'.  Co.  v.  Cleveland,  C,  C.  &^  I. 
A'.  Co.,  33  Am.  &*  Eng.  R.  Cas.  16,  125  f/. 
.S.  658,  8  Sup.  Cl.  Kep.  loii.— QUOTKIJ  IN 
Central  Trust  Co.  v.  Wabash,  St.  L  &  P.  R. 
Co.,  46  Am.  &  Eng.  R.  Cas.  301.  46  Fed. 
Rep.  26. 

Where  the  lessee  of  a  railroad  applies 
earnings  to  payment  of  interest  on  mort- 
gage bonds,  instead  of  to  payment  of  rent, 
and  the  mortgage  is  afterwards  foreclosed, 
if  the  lessor  has  a  prior  equitable  lien  for 
rent,  it  is  against  the  bondholders  to  whom 
the  interest  was  paid,  and  not  against  the 
fund  arising  from  the  foreclosure.  St.  Louis, 
A.  6r*  T.  //.  R.  Co.  v.  Cleveland,  C,  COr*  I. 
R,  Co.,  33  Am.  <S-  Eng.  R.  Cas.  16,  125  U. 
S.  658,  8  Sup.  Ct.  Rep.  loii. 

A  mortgagee  out  of  possession  has  no 
lien  upon  rents.  Until  he  elects  to  take 
possession,  or  moves  for  a  receiver,  the  rents 
belong  to  the  lessor,  who  may  contract  as 
he  chooses  with  the  lessee  or  his  assignee  in 
regard  to  them.  Frank  v.  Erie  &•  G.  V. 
R.  Co.,  33  A^.  Y.  S.  R.  23s.  122  A'.  Y.  197, 
25  N.  E.  Rep.},yi;  modifyitig  and  affirming 
7  iV.  Y.  S.R.  814,  44  Hun  624,  mem. 

When  the  mortgagee  takes  possession  he 
does  so  subject  to  all  arrangements  made  in 
good  faith  between  a  lessor,  lessee,  and  as- 
signee, for  the  relief  of  the  latter,  unless 
there  was  an  express  promise  by  him  enur- 
ing to  the  mortgagee's  benefit.  Frank  v. 
Erie  <S-  G.  V.  R.  Co.,  46  Am.  &*  Eng.  R.  Cas. 
356.  33  N'  Y'  S.  R.  235.  122  N.  Y.  197,  25 
M  E.  Rep.  332 ;  modifying  and  affirming  7 
N,  Y.  S.  R.  814,  44  Hun  624,  tnem. 


Where  a  grant  of  the  reversion  of  an  es- 
tate expectant  on  the  detcrminati(jii  of  a 
lease  for  years  is  by  way  of  nuirtgage,  the 
mortga>;ee,  though  entitled  to  the  rents  as 
incident  to  the  reversion,  may  take  them  or 
not  at  his  election.  If  he  allows  the  mort- 
gagor t  ,  rckieive  them,  and  afterwards  elects 
to  take  thcMi  himself,  and  gives  notice  of 
his  election  lo  the  tenant,  he  becomes  un- 
titled to  all  tilt  rents  accruing  after  the  ex- 
ecution of  the  mortgage  and  in  arrear  and 
unjiaid  at  the  time  of  the  notice,  as  well  as 
to  those  which  accrue  afterwards.  Hut  the 
rents  in  arrear  at  the  time  the  mortgage  was 
executed  belong  to  the  mortgagor,  h'ing 
V.  Housatonic  R,  Co.,  45  Conn.  226. 

A  company  leased  is  road  to  another 
company  for  five  years,  and  afterwards 
mortgaged  the  same  projierty  to  trustees  f(jr 
the  holders  of  certain  bonds,  the  mortgage 
providing  that  the  mortgagees,  on  default 
of  the  payment  of  the  semi-annual  interest 
on  the  bonds  for  six  months,  might  enter 
and  take  possession  of  the  property  and  re- 
ceive the  rents  and  income.  The  mort- 
gagees entered  for  default  of  payment  of 
interest,  and  gave  notice  to  the  lessees  to 
pay  to  them  all  rents  then  due  or  thereafter 
accruing.  At  this  time  a  large  sum  was  due 
from  the  lessees  for  rent,  and  a  few  days 
after  the  entry  a  creditor  of  the  lessors 
fact(jrized  the  lessees  as  debtors  of  the  les- 
sors for  the  rents  overdue.  Held,  that  these 
rents  were  not  taken  by  the  attachment,  but 
belonged  to  the  mortgagees,  /^itig  v.  Hous- 
atonic R.  Co.,  45  Conn.  226. 

t>M.  How  lease  is  affected  by  fore- 
closure.— A  railroad  company  purchased  a 
road  at  a  foreclosure  sale,  and,  inter  alia, 
took  possession  of  certain  property  which 
the  former  company  had  only  leased,  and 
continued  to  use  it  for  a  number  of  years. 
Held,  that  the  relation  of  landlord  and 
tenant  was  not  created  between  the  owners 
of  the  leased  property  and  the  purchasers, 
by  operation  of  the  sale ;  but  by  the  act  of 
the  parties  the  purchasers  acquired  an 
equitable  estate  in  the  premises  the  same  as 
the  legal  estate  under  ihe  lease,  and  that 
both  parties  were  estopped  from  denying 
that  this  was  so.  Wiggins  Ferry  Co.  v. 
Ohio  &•  Af.  R.  Co.,  $2  Am.  (S-  Eng.  R.  Cas. 
82,  142  U.  S.  396,  12  Sitp.  a.  Rep.  188. 

Two  railroad  companies  entered  into  a 
contract  under  seal  whereby  one  was  allowed 
to  use  a  portion  of  the  track  of  the  other 
jointly  with  it,  which  contract  was  acted  on 


^i     ^m 


338 


LEASES,  ETC.,  99,  100. 


for  some  time  when  the  lessee  company 
became  insolvent,  and  its  road  and  franchise 
were  sold  at  foreclosure  to  another  com- 
pany, which  continued  to  use  the  track  for  a 
time,  but  afterwards  abandoned  it.  //M, 
that  the  purchasing  company  was  liable  to 
the  company  owning  the  track  according  to 
the  terms  of  the  agreement  entered  into  by 
the  insolvent  company  ;  and  the  fact  that 
such  purchasing  company  had  given  notice 
that  it  renounced  the  benelits  of  the  con- 
tract did  not  affect  its  liability  for  such  use. 
Sou/A  Carolina  A'.  Co.  v.  IVilinington,  C.  &* 
A.  A'.  Co.,  7  Ho.  Car.  410.  See  also  Fratd-  v. 
Atw  IVr/C-,  L.  E.  &•  IV.  R.  Co.,  46  Am.  &• 
Eng.  R.  Cas.  356,  122  N.  Y,  197,  25  A'.  E. 
Rep.  332,  33  A'.  1'.  a.  R.  235  ;  modifying  44 
Hun  624,  mem.,  7  N.  Y.  S.  R.  814. 

99.  Valiility  of  leuHe  of  Veriiioiit 
uikI  Cuiiatln  ruilroad— ICiglit  of  boiid- 
lioUlvrs  to  object.— The  contract  of  lease 
between  the  Vermont  &  Canada  R.  Co. 
and  the  Vermont  Central  R.  Co.,  made 
Aug.  24,  1849,  and  the  addition  thereto 
made  July  9,  1850,  were  not  unlawful  as 
being  against  public  law  or  policy.  Those 
corporations  themselves  and  their  stock- 
holders having  assented  to  the  validity  of 
tliose  contracts,  it  is  not  competent  for  a 
bondholder  under  the  first  mortgage  of  the 
Vermont  Central  R.  Co.,  given  in  express 
subjection  to  those  contracts,  to  object  to 
their  validity,  on  account  of  the  want  of 
capacity  of  those  corporations  to  make 
them.  Vermont  &•  C.  R.  Co.  v.  Vermont 
C.  R.Co..  34  Vt.  I. 

Though  the  charters  of  those  corporations 
did  not  authorize  such  contracts,  ihe  gen- 
Q-\  act  of  1847  (Com p.  St.  ch.  26,  ij  66) 
did,  and  the  exercise  of  these  powers  by  the 
stockholders  of  those  corporations,  in  au- 
thorizing the  contract  of  July  9,  1850,  at  a 
meeting  held  for  that  purpose,  without  any 
objection  on  the  part  of  any  one  of  them, 
either  at  that  time  or  subsequently,  is  suffi- 
cient ground  of  presumption  that  the  corpo- 
rations, as  such,  had  accepted  them  as  part  of 
their  organic  law ;  and  that  the  stockhold- 
ers all  concurred  in  the  action  then  taken, 
end  thai  they  assent  to  its  effect  for  all 
legitimate  purposes  touching  the  rights 
either  of  the  corporation  or  of  themselves 
individually  as  members  of  such  corpora- 
tion. Vermont  6-  C.  R.  Co.  v.  Vermont  C.  R. 
Co.,  34  Vt.  I.— Followed  in  Hazard  v, 
Vermont  &  C.  R.  Co.,  12  Am.  &  Eng.  R. 
Cas.  388,  17  Fed.  Rep.  753. 


The  claim  that  the  iudentures  of  Aug.  24. 
1849,  and  July  9,  1840,  are  not  a  lease  and 
security,  for  rent,  but  a  pretext  and  cover 
under  which  the  Vermont  Central  R.  Co. 
built,  with  its  own  means,  the  Vermont  & 
Canada  railroad,  the  same  as  if  the  latter 
company  had  not  existed,  the  pretended 
taking  of  stock  in  that  company  being  in 
fact  a  loan  of  money  by  the  stockholders  to 
the  Vermont  Central  R.  Co.  at  a  guaran- 
teed interest  of  eight  per  cent. — /ie/<f,  to  be 
unfounded.  Vermont  &'  C.  R.  Co.  v.  Ver- 
mont C.  R.  Co.,  34  Vt.  I. 

Though  as  an  open  question,  independ- 
ently of  the  action  of  the  parties,  it  would 
seem  that  the  contract  of  the  lease  contem- 
plated that  the  sum  on  which  the  eight  per 
cent,  should  be  cast,  to  arrive  at  the  amount 
of  rent  to  be  paid  by  the  Vermont  Cent. ' 
R.  Co.,  was  to  be  the  actual  outlay  of  money 
directly  for  the  construction  of  the  Vermont 
&  C.  R.,  still  the  meaning  put  upon  the 
contract  by  the  parties  themselves  by  the 
payment  of  rent  and  the  adjustment  of  ac- 
counts, appears  so  clearly  to  have  been  that 
the  cost  of  construction  should  be  measured 
by  the  capital  stock  of  the  Vermont  &  C. 
Co.  paid  in,  with  interest  on  the  expendi- 
tures from  the  time  they  were  made  in 
pursuance  of  the  contract  of  lease,  that  such 
must  be  taken  to  be  the  true  meaning  of  the 
contract  in  that  respect.  Vermont  &•  C.  R. 
Co.  V.  Vermont  C.  R.  Co.,  34  Vt.  i. 

7.  Procedure. 

100.  Remedy  by  action  at  law.— 

When  an  action  at  law  is  an  adequate  rem- 
edy for  a  forfeiture  of  the  estate  conveyed 
by  a  lease  of  a  railroad,  equity  may  leave 
the  lessor  to  that  remedy.  Boston  C.  &•  M. 
R.  Co.  V.  Boston  &•  L.  R.  Co.,  51  Am.  6- 
Eng.  R.  Cas.  106.  65  A'.  H.  393,  23  At/.  Rep. 
529.  Pittsburg  &*  C.  R.  Co.  v.  Rlt.  Pleasant 
6-  B.  F.  R.  Co.,  76  Pa.  St.  481. 

A  railroad  was  leased,  the  lessors  alleged 
a  breach  of  covenants,  declared  the  lease 
forfeited  and  took  possession.  A  bill  was 
filed  by  the  lessees  to  restrain  the  lessors 
from  interfering  with  them  in  the  use  of  the 
road  ;  a  preli'  linary  injunction  was  awarded. 
Then  the  lessees  filed  a  cross-bill  praying 
for  a  decree  to  reinstate  them  in  possession 
of  the  road  ;  answers  were  filed  to  both 
bills  and  a  master  appointed.  While  the 
matter  was  before  him,  the  lessor  brought 
ejectment  on  the  ground  of  the  forfeiture. 


LEASES,  ETC.,  101,  102. 


239 


Held,  that  pending  the  equity  suit  the 
lessors  could  not  institute  another  proceed- 
ing involving  the  same  question.  Pitts- 
burg >5-  C.  R.  Co.  V.  Mt.  Pleasant  &>  B.  F. 
R.  Co.,  id  Pa.  5/.  481. 

101.  Beiiiedy  by  bill  in  equity.— 
Where  a  lease  of  a  railroad  for  ninety-nine 
years  contained  covenants  for  the  payment 
of  monthly  instalments  of  rent  to  keep  the 
road  in  repair,  and  to  keep  accounts  of  all 
mutters  connected  with  its  business,  as  af- 
fecting the  amount  of  rent  to  be  paid,  which 
ruvenants  were  guaranteed  by  other  parties 
tliaii  the  lessee,  a  bill  which  shows  failure 
to  pay  icnt,  depreciation  of  the  road,  and 
combination  of  the  guarantors  and  lessee  to 
divert  the  earnings  of  the  road  to  the  bene- 
fit of  the  guarantors,  presents  a  case  of 
equitable  jurisdiction,  when  it  prays  for 
specific  performance  of  the  obligations  of 
the  lease.  In  such  a  case,  a  suit  at  law  on 
each  instalment  of  rent  as  it  falls  due  is 
not  an  adequate  remedy.  Pennsylvania  R. 
Co.  V.  St.  Louis,  A.  &•  T.  H.  R.  Co.,  24  Am. 
&>  Huii.  R.  Cas.  58,  118  ^r.  S.  290,  6  5«/. 
Ct.  Rep.  1094.— Approved  in  Ricketts  v. 
Chesapeake  &  O.  R.  Co.,  41  Am.  &  Eng.  R. 
Cas.  42,  33  W.  Va.  433,  7  L.  R.  A.  354,  10  S. 
E.  Rep.  801.  Quoted  in  Naglee  v.  Alex- 
andria &  F.  R.  Co.,  32  Am.  &  Eng.  R.  Cas. 
^01,  83  Va.  707.  Referred  to  in  Orego- 
nian  R.  Co.  v.  Oregon  R.  &  N.  Co.,  37  Fed. 

Rep.  733- 

Where  four  companies  propose  executing 
a  lease  jointly,  but  one  of  the  companie:^  re- 
fuses to  execute  it,  thereby  causing  two 
others  to  retract,  a  court  of  equity  will  not 
compel  the  fourth  company,  on  the  applica- 
tion of  stockholders,  to  execute  the  lease. 
Ives  V.  Smith,  8  N.  Y.  Supp.  46 ;  affirming 
3  iV.  Y.  Supp.  645. 

k  court  of  equity,  in  the  management  of  a 
mortgaged  railroad,  may  authorize  the  re- 
ceiver to  take  a  lease  of  another  railroad, 
where  it  is  manifestly  for  the  interest  of  the 
creditors  and  the  company.  And  so  on 
like  conditions  the  court  may  authorize  its 
receiver  to  contribute,  out  of  the  accrued 
revenues  in  his  hands,  to  the  building  of 
another  railroad.  Gibert  v.  Washington 
City,  V.  M.  <S-  G.  S.  R.  Co.,  i  Am.  &*  Eng. 
R.  Cas.  473,  33  Gratt.  ( Va.)  586. 

One  company  leased  the  road  of  another, 
agreeing  to  pay  all  taxes  and  assessments 
and  operating  expenses,  to  pay  the  prin- 
cipal and  interest  of  the  mortgage  debt, 
and  to  pay  in  addition  specified  annual 


dividends  to  the  shareholders.  The  lessor 
company  also  undertook  from  time  to  time 
to  issue  its  bonds,  secured  by  a  mortgage, 
which  were  to  be  negotiated  by  the  lessee 
company,  and  the  proceeds  to  be  applied 
to  permanently  improving  the  road,  any 
surplus  to  be  used  for  the  discharge  of 
prior  indebtedness.  New  bonds  were  so 
issued  and  negotiated,  and  after  a  time  the 
lessee  company  failed  to  comply  with  the 
covenants  in  the  lease  and  defaulted  in  the 
payment  of  moneys  according  to  its  terms. 
Held,  that  the  lessor  company  might  prop- 
erly file  a  bill  for  an  account  against  the 
lessee,  the  necessary  computations  being  so 
complicated  that  they  could  not  readily  be 
taken  in  an  action  at  law.  Pacific  R,  Co.  v. 
Atlantic  <S-  P.  R.  Co.,  17  Am.  &•  Eng.  R. 
Cas.  203,  20  Fed.  Rep.  277.— FOLLOWED  in 
Reed  v.  Atlantic  &  P.  R.  Co.,  22  Blatchf. 
(U.  S.)  469. 

Such  a  bill  might  join  a  prayer  for  an 
account  c.'th  a  claim  for  damages  for  the 
loss  of  the  road,  and  for  unpaid  dividends 
in  the  nature  of  rent.  This  would  not  con- 
stitute the  same  multifarious.  Pacific  R. 
Co.  v.  Atlantic  (S-  P.  R.  Co.,  17  Aw.  &* 
E/ig.  R.  Cas.  203,  20  Fed.  Rep.  277. 

The  assignee  of  a  lease  of  land  through 
which  a  company  desired  to  obtain  a  right 
of  way  refused  to  sell,  and  the  company 
supposed  it  had  no  power  under  its  charter 
to  condemn  his  interest.  Proceedings  in 
which  the  original  lessee  had  been  made  a 
party  had  been  instituted  and  failed.  Held, 
that  the  remedy  of  the  company  was  not  by 
bill  for  injunction  against  the  assignee,  but 
to  amend  the  charter.  Piedmont  &^  C.  R. 
Co.  V.  Speelman,  30  Am.&^Eng.  R.  Cas.  316, 
67  Afd.  260,  9  Cent.  Rep.  71,  10  Atl,  Rep.  77, 

293- 

102.  Contract  rigplit  to  apply  to 
chancellor— Abolition  of  before  ap- 
plication.—A  railroad  lease  executed  in 
1837  provided,  inter  alia,  that  if  the  lessor 
should  become  dissatisfied  with  the  rent 
reserved  he  might  apply  "  to  the  chancellor 
of  the  state  of  New  York"  to  appoint 
appraisers.  Before  he  desired  to  make  such 
application  the  Code  was  adopted  and  the 
ofllice  of  chancellor  abolished,  and  the  su- 
preme court  given  the  usual  jurisdiction  of 
the  former  chancellor.  Held,  that  the  ap- 
plication should  be  made  to  the  supreme 
court.  New  York  C.  R.  Co.  v.  Saratoga  &* 
S.  R.  Co.,  39  Barb.  (N.  Y.)  289. 

And  where  proper  application  is  made  to 


V     SI 


.\  a 


240 


LEASES,  ETC.,  103,  104. 


the  suprenie  court  under  the  above  provi- 
sion, an  order  made  by  a  justice  of  that 
court,  on  motion  at  a  special  term  is  valid. 
Ne%v  York  C.  K.  Co.  v.  Saratc^a  6-  S.  K. 
Co.,  39  Barb.  {N.   Y.)  289. 

The  above  lease  provided  that  the  appli- 
cation should  be  upon  notice.  Held,  that 
any  defect  in  the  time  or  mode  of  service  of 
the  notice  might  be  waived ;  and  a  failure 
to  object  to  the  irregularity  amounted  to  a 
waiver.  New  York  C.  Ji.  Co.  v.  Saratoga 
&'  S.  a:  Co.,  39  Barb.  {N.  Y.)  289. 

103.  Pleadings. — Although  one  rail- 
road may  be  leased  to  and  operated  by  an- 
other, by  which  the  latter  makes  itself  re- 
sponsible for  acts  dene  on  the  road  leased, 
yet  neither  loses  its  identity,  and  any  tort 
committed  upon  the  line  of  the  one  or  the 
other  should  be  so  alleged  and  proved.  Es- 
pecially is  this  true  where  both  roads  are 
constructed  through  the  territory  of  the 
same  county.  Centra/  B.  Co.  v.  Brinson,  8 
Am.  &•  Eng.  R.  Cas.  343,  64  Ga.  475. 

An  amendment  alleging  that  the  railroad, 
on  the  line  of  which  an  injury  was  re- 
ceived, was  held  under  a  lease,  and  operated 
by  another  railroad  company,  against  which 
suit  was  brought,  was  properly  allowed. 
Centra/  A'.  Co.  v.  Whitehead,  74  Ga.  441. 

In  a  suit  against  two  railroad  companies, 
a  complaint  charging  that  a  horse  was  killed 
on  the  road  of  one  of  the  companies,  where 
the  track  was  not  securely  fenced,  by  the 
cars  of  the  other  company,  passing  over  the 
road  in  charge  of  the  officers  of  the  latter 
company,  is  not  sufTicient  to  charge  either 
company  with  liability  under  the  statute,  as 
the  corporation  owning  the  track  was  not 
shown  to  have  authorized  the  use  of  its 
road;  nor  was  the  company  owning  the 
cars  alleged  to  have  been  controlling  or 
running  the  road  in  the  corporate  name  of 
the  corporation  owning  the  road,  either  as 
lessees,  assignees,  receiver,  or  otherwise. 
Cincinnati  6>»  Af.  A'.  Co.  v.  PasJbins,  36  /nd. 
380.  5  Am.  Ay.  Rep.  570.  — Distinhlishing 
Indianapolis  &  M.  R.  Co.  v.  Solomon,  23 
Ind.  534.— Followed  in  Cincinnati  &  M. 
R.  Co.  V.  Townsend,  39  Ind.  38. 

A  complaint  based  on  a  lease  set  out 
"  that  defendants  unjustly  claim  an  estate 
in  these  premises,  in  fee,  or  for  life,  or  for  a 
term  of  years,  not  less  than  ten  years,  or  in 
reversion  or  remainder,  by  virtue  of  a  lease 
or  conveyance"  made  by  a  certain  railroad 
company,  which  lease  or  conveyance,  and 
all  rights  thereunder,  the  defendant  com- 


pany now  claims  to  own.  He/d,  that  this 
was  a  sufficient  compliance  with  N.  Y. 
Code  Civ.  Pro.  §  1639,  which  prescribes 
that  complaints  to  determine  claims  to 
real  property  shall  state  "  that  the  defend- 
ant unjustly  claims  an  estate  therein  of  tlie 
character  specified "  in  the  next  preced- 
ing section.  Phi//ips  v.  Rome,  W.  &*  O.  R, 
Co.,  30  N.  Y.  S.  R.  41.  9  ^V.  Y.  Stipp.  799; 
affirmed  in  128  N.  Y.  578,  mem.,  38  N.  Y.  S. 
R.  loio. 

Where  both  the  lessor  and  the  lessee  cor- 
porations are  sued,  it  being  alleged  that 
both  have  a  claim,  and  both  appear,  and 
neither  of  them  enter  a  disclaimer,  or  move 
to  dismiss,  it  cannot  be  urged  on  appeal 
that  there  was  nothing  to  show  that  the 
lessee  company  made  any  claim  against  the 
plaintifT,  and  that  the  complaint  as  to  it 
should  have  been  dismissed.  Phillips  v. 
Rome,  W.  6-  O.  R.  Co.,  30  N.  Y.  S.  R.  41,  9 
N.  Y.  Supp.  799;  affirmed  in  128  N.  Y.  578, 
mem.,  38  N.  Y.  S.  R.  loio. 

104.  Necessary  parties.  —  Where  a 
lease  of  a  railroad  provides  that  dividends 
shall  be  paid  directly  to  the  stockholders, 
the  stockholders  are  not  necessary  parties 
to  an  action  for  an  accounting,  and  the  cor- 
poration, being  composed  of  all  the  stock- 
holders, fully  represents  their  interests,  and 
is  the  proper  party  to  enforce  a  claim  for 
unpaid  dividends.  Pacific  R.  Co.  v.  Atlan- 
tic Of  P.  R.  Co.,  17  Am.  &>  Eng.  R.  Cas.  203, 
20  Fed.  Rep.  277. 

Where  it  appears  that  another  railroad 
company  is  in  possession  of  the  road,  it  is 
proper  to  make  that  company  a  party  to  the 
suit,  to  Socertain  its  interest  in  it,  and  that 
company  not  responding  or  showing  what 
its  interest  is,  a  decree  for  leasing  the 
road  may  be  made.  Winchester  &*  S.  A'. 
Co.  v.  Col/elt,  27  Gratt.  \Va.)  777,  17  Am. 
Ry.  Rep.  121. 

A  bill  by  an  individual  to  enforce  a  rail- 
road lease  set  out  that  the  road  was  leased 
for  forty  years,  and  that  the  lessee  in  turn 
leased  its  road  to  defendant  company  for 
twenty  years,  and  that  defendant  assunieil 
the  first  lease,  but  after  the  expiration  of 
twenty  years  refused  to  pay  the  rent ;  and 
prayed  a  decree  that  the  original  lease  he 
made  binding  on  the  defendant  for  the  fuil 
term  of  forty  years,  and  that  It  be  com- 
pelled to  continue  to  operate  the  road  and 
pay  the  rent.  Held,  that  the  original  lessee 
was  a  necessary  party.  Jessup  v.  Illinois  C. 
R.  Co.,  3,6  Fed.  AV/.  735.— QUOTINO  Pull- 


LEASES,  ETC.,  103-107. 


241 


man  Palace  Car  Co.  v.  Missouri  Pac.  R.  Co., 
115  U.  S.  597,  6  Sup.  Ct.  Rep.  198. 

105.  Evidence.  —  Where  a  company 
defends  an  action  on  the  ground  that  its 
road  was  leased,  it  is  competent  to  prove  by 
a  witness  the  fact  of  tlie  lease,  after  he  has 
admitted  that  the  lease  is  in  writing. 
(Hall,  J.,  dissenting.)  Central  A\  Co.  v. 
Whitehead,  74  Ga.  441. 

While  it  might  have  been  sufficient  to 
have  alleged  that  the  defendant  controlled 
and  operated  the  road  where  the  injury  oc- 
curred, without  specifying  the  particular 
character  of  the  agreement  under  wliich 
this  was  done,  yet  where  the  plaintiff  al- 
leged with  needless  particularity  or  unnec- 
essary circumstances  what  was  material 
and  necessary,  and  what  might  have  been 
stilted  more  generally,  plaintiff  was  re- 
quired to  prove  the  fact  as  alleged ;  and 
therefore,  having  alleged  that  one  railroad 
operated  another  under  a  lease,  it  was  nec- 
essary 10  prove  the  same.  Central  A'.  Co. 
V.  Whitehead.  74  Ga.  441. 

The  fact  of  the  lease  could  be  proved 
without  producing  the  writing.  Nothing 
in  the  writing  could  prevent  the  liability  of 
the  actual  carrier,  holding  itself  out  to  the 
public  as  such,  if  it  were  negligent,  what- 
ever might  be  its  effect  as  to  the  ultimate 
liability  between  the  parties  thereto.  Cen- 
tral R.  Co.  v.   Whitehead.  74  Ga.  441. 

Where  a  company  seeks  to  recover  rent 
for  the  use  of  a  track  under  a  lease  given 
by  its  predecessor  to  the  defendant,  the  or- 
ders, deeds,  and  records  in  a  foreclosure 
suit,  showing  a  transfer  of  the  rights,  prop- 
erty, and  franchise  of  the  lessor,  are  prop- 
erly admissible  on  the  part  of  the  plaintiff, 
as  tending  to  show  its  right  to  recover 
under  the  lease,  as  the  successor  of  the  les- 
see. .SV.  Louis  Sf  C.  R.  Co.  v.  East  St. 
Louis  6-  C.  R.  Co.,  139  ///,  401,28  A'.  E.  Rep. 
io88  ;  affirming  39  ///.  A/)p.  354, 

In  an  action  on  a  lease  for  an  instalment 
of  rent  payable  quarterly  in  advance,  a  for- 
mer judgment  between  the  same  parties  on 
tlie  same  instrument,  in  an  action  for  rent, 
which  determined  that  an  instalment  fell 
due  on  the  ist  of  March,  establishes  the 
fact  that  another  instalment  was  payable 
on  the  1st  of  December.  Dry  Dock,  E.  B. 
*•  B.  R.  Co.  V.  North  &*  E.  R.  R.  Co.,  3 
Misc.UX.  K.)6i. 

100.  When  lessor  entitled  to  in- 
terest.—A  lease  of  cars  pending  foreclos- 
ure of  a  railroad  mortgage,  although  valid 
6D.  R.  D.— 16 


until  disaffirmed  by  the  court,  is  not  an  in- 
strument in  writing  such  as  entitles  the 
lessor  to  interest  under  111.  Rev.  St.  1885, 
p.  1356.  Thomas  v.  Peoria  &*  R.  /.  R.  Co., 
36  Am.  (S-  Eng.  R.  Cas.  381,  36  Fed.  Rep. 
808. 

Although  the  lessor  still  claims  a  larger 
sum  than  that  to  which  he  is  equitably  en- 
titled, yet  if  he  is  refused  payment  of  any 
amount  approaching  that  which  is  due  him, 
this  constitutes  an  unreasonable  and  vexa- 
tious delay,  which  will  justify  the  allowance 
of  interest  and  the  aggregate  amount  due 
from  the  date  of  the  filing  of  the  master's 
report.  Thomas  v.  Peoria  iS^  A'.  /.  A'.  Co., 
16  Am.  &^  Eng.  R.  Cas.  381,  36  E'ed.  Kep, 
808. 

107.  Estoppel— Laches.— One  of  two 
trustees  who  held  stock  of  the  defendants, 
as  part  of  their  trust  funds,  merely  ex- 
pressed an  opinion  favorable  to  the  lease  of 
the  defendants'  road  to  another,  but  refused 
to  vote  for  a  resolution  by  the  stockholders 
directing  the  officers  to  make  the  lease,  and 
afterwards  voted  against  ratifying  it.  Held, 
that  he  was  not  estopped  'cy  acquiescence 
from  assailing  its  validity.  Mills  v.  Central 
R.  Co.,  24  Am.  &*  Eng.  R.  Cas.  47,  41  JV.J. 
Eq.  1,7.  AtL  Rep.  453. 

The  lessee  of  a  railroad  took  possession 
thereof  on  May  29th.  The  complainants  filed 
their  bill  to  annul  the  lease  on  August  29th 
following.  Held,  that  they  were  not  barred 
by  laches  from  maintaining  their  suit. 
Mills  V.  Central  R.  Co.,  24  Am.  &^  Eng.  R. 
Cas.  47,  41  N.y.  Eq.  I,  2  Atl.  Rep.  453. 

Whether  the  lease  was  a  judicious  and 
profitable  arrangement  both  for  defendants 
and  complainants,  or  whether  the  lessee  ha* 
become  insolvent  since  the  lease  was  made, 
cannot  control  or  affect  complainants'  right 
in  the  premises.  Mills  v.  Central  R.  Co.,  24 
Am.  (S-  Eng.  R.  Cas.  47,  41  N.  J.  Eq.  i,  2 
AtL  Rep.  453. 

A  railroad  company  leased  the  lines  of 
two  other  companies,  and  subsequently  got 
into  financial  difficulties.  A  receiver  was 
appointed  on  application  of  the  attorney- 
general,  and  afterwards  the  three  companies, 
having  agreed  upon  a  modification  of  the 
leases,  made  application  to  have  the  re- 
ceiver discharged,  and  the  property  restored 
to  the  lessee  company.  This  was  done,  the 
decree  expressly  reserving  to  the  court  the 
power  of  alteration  or  modification.  In  a 
suit  subsequently  brought  by  one  of  the 
lessor  companies  against  the  lessee  com- 


^r  , 


/  -^  ^  -^ 


242 


LEASES,  ETC.,  108,  109. 


pany  to  set  aside  the  aboVe  agreement  modi- 
fying the  release  on  the  ground  of  fraud — 
held,  that  as  the  company  complainant  had 
not  been  a  party  to  the  suit  instituted  by 
the  attorney-general,  the  circumstances  did 
not  debar  it  from  movir.g  to  set  aside  the 
agreement.  Metropolitan  El.  R.  Co.  v. 
Manhattan  El.  A'.  Co.,  15  Aw.  6^  Eng.  K. 
Cas.  I.  II  Valy  (N.  V.)  373,  14  Add.  A.  Cas. 
103. 

The  corporation  complainant  was  held 
entitled  to  the  relief  prayed  for,  viz.,  the 
setting  aside  of  the  alleged  fraudulent 
agreement,  notwithstanding  the  fact  that  it 
was  impossible  to  restore  all  parties  thereto 
to  the  exact  status  occupied  by  them  be- 
fore the  agreement  was  entered  into.  The 
other  parties  having  entered  into  such 
agreement  with  full  knowledge  that  the 
stockholders  of  the  corporation  defendant 
claimed  that  the  same  was  illegal  and  void, 
must  abide  the  consequences  of  the  annul- 
ment of  the  agreement,  and  this  notwith- 
standing that  they  have  paid  out  money  on 
the  faith  of  the  agreement  which  cannot  be 
restored.  Metropolitan  El.  Ji.  Co.  v.  Man- 
hattan El.  R.  Co.,  15  Am.  &•  Eng.  R.  Cas.  i, 
1 1  Daly  (A".  Y.)  373,  14  Abb.  A'.  Cas.  103, 

II.  BVNNINO  POWEBS. 

I.  Under  American  Authorities. 

108.  Liability  of  lessees,  gener- 
ally.*-Under  Ind.  Rev.  St.  188 1,  §  4001, 
the  owner  of  locomotives  and  trains  oper- 
ated and  run  over  another  railroad  is  liable 
to  persons  for  damages  occasioned  by  such 
locomotives  and  trains  to  the  same  extent 
as  though  the  track  and  road  upon  which 
said  locomotives  and  trains  were  run  and 
operated  belonged  to  the  company  owning 
and  operating  the  same.  Wabash  R.  Co.  v. 
Williamson,  3  Ind.  App.  190,  29  A'.  E.  Rep. 

455- 

Where  a  company  has  an  arrangement 
for  the  use  of  the  track  of  another  company, 
but  operates  its  engines  and  trains  by  its 
own  employes,  it  is  held  to  the  same  pre- 

*  Liability  of  railroad  using  tracks  of  another 
company,  see  notes,  19  Am.  &  Eng.  R.  Cas.  7 ; 
10  Id.  813  ;  17.  Id.  654  ;  18  Id.  139  ;  25  Id.  456. 

Company  liable  for  negligence  of  any  com- 
pany whose  lines  or  stations  it  uce^,  see  note,  18 
Am.  &  Eng.  R.  Cas.  144. 

Injury  to  passengers  and  servants  where  one 
company  is  running  trains  over  trark  of  another, 
tfe  notes,  10  Am.  tt  Eno.  R.  Cas.  U  i  ;  17  Id. 
654. 


cautions  for  the  safety  of  the  public  at  cross- 
ings, as  is  imposed  upon  the  company  own- 
ing the  track.  Webb  v.  Portland  6-  K.  R. 
Co.,S7  Me.  117. 

So  far  as  the  question  of  liability  for  neg- 
ligence is  concerned,  a  corporation  running 
its  trains  over  the  road  of  another  company 
is  bound  by  the  same  laws  and  ordinances 
which  bind  the  owner.  McGrath  v.  Ne^u 
York  C.  &-  H.  R.  R.  Co.,  63  N.  Y.  522.— Fol- 
lowed IN  Leonard  v.  New  York  C.  &  H.  K. 
R.  Co.,  10  J.  &  S.  225. 

An  action  for  personal  injury  is  sustain- 
able against  a  company  owning  the  train 
and  employing  the  engineer,  although  the 
accident  occurred  on  the  track  of  another 
company,  which  hired  the  motive  power  of 
the  first  company.  Hanover  R.  Co.  v.  Coyle, 
55  Pa.  St.  396. 

100.  Liiability  of  lessee  for  injuries 
caused  by  unsafe  condition  of  track. 
— Where  one  company  acquires  the  right  to 
run  its  trains  over  a  portion  of  the  road  of 
another  company  by  a  contract,  in  which  it 
is  agreed  its  trains,  while  on  such  leased  road, 
shall  be  under  the  control  and  direction  of 
the  yard  master  or  other  servant  of  the  les- 
sor company,  the  yard  master  of  the  latter 
road,  at  such  place  and  for  the  time  being, 
will  be  the  servant  of  the  lessee  company, 
and  it  will  become  liable  for  an  injury 
caused  to  another  from  the  negligent  acts 
of  such  yard  master,  the  same  as  if  he  was 
its  own  employe  on  its  own  road.  Wabash, 
St.  L.  6-  P.  R.  Co.  v.  Peyton,  18  Am.  6- 
Eng.  R.  Cas.  i,  106  ///.  534,  46  Am.  Rep. 
705. 

A  railroad  company  is  held  to  the  exer- 
cise of  due  care  for  the  safety  of  all  persons 
while  exercising  its  franchises,  whether  on 
its  own  road  or  on  that  of  another  com- 
pany. This  duty  was  imposed  by  law  when 
it  received  its  franchises,  which  holds  good 
at  all  times  and  in  all  placed,  and  if  the  com- 
pany operates  its  trains  over  the  road  of  an- 
other by  contract  or  lease,  it  must  see  and 
know  that  the  track  is  in  a  good  and  safe 
condition,  not  only  for  the  safety  of  its  pas- 
sengers, but  also  for  the  safety  of  persons 
rightfully  near  to  the  track  and  liable  to  in- 
jury by  its  being  used  when  in  an  unsafe 
condition.  Wabash,  St.  L.  &>  P.  R.  Co.  v. 
Peyton,  18  Am.  &>  Eng,  R.  Cas.  i,  106///. 
534,  46  Am.  Rep.  705. 

Where  a  company  procures,  by  contract 
with  another  such  company,  the  right  of 
running  its  trains  into  and  out  of  a  depot 


LEASES,  ETC.,  110,  lll^ 


243 


over  the  track  of  the  latter,  it  thereby  makes 
that  portion  of  the  track  so  used  its  own,  in 
so  far  that  it  will  be  responsible  for  all  in- 
juries resulting  from  negligence  in  keeping 
or  permitting  it  to  be  in  an  unsafe  condition. 
IVabas/i,  Si.  L.  (S-  P.  R.  Co.  v.  Peyton,  i8 
Am.  Sr*  Eng.  R.  Cas.  i,  io6  ///.  534,  46  Am. 
Rep.  705. 

In  such  case  the  court  declined  to  say 
wliclher  the  lessor  company  was  also  liable, 
but  held  that  if  it  was,  the  plaintiff  had  the 
option  to  sue  either  company  alone,  and 
perhaps  both,  as  tort  feasors,  but  that  she 
was  not  required  by  any  rule  to  sue  either 
one  instead  of  the  other,  or  to  sue  both 
jointly.  Wabash,  St.  L.  6-  P.  R.  Co.  v. 
Peyton,  18  Am.  Sr-  Eng.  R.  Cas.  i,  106  ///. 
534,  46  Am.  Rep.  705. 

1 10.  Liability  of  lessor  to  lessee 
niid  its  employes.— When  one  com- 
pany lias  a  right  by  contract  to  run  its  trains 
over  the  track  of  another  company,  the  lat- 
ter company  is  liable  for  injuries  caused 
solely  by  the  negligence  of  its  own  switch- 
man in  not  properly  attending  to  his  duty, 
to  an  engineer  of  the  former  company  while 
operating  his  engine  on  said  track ;  and 
also  to  the  other  company  for  damage  to  its 
property.  In  re  Merrill,  11  Am.  &*  Etig. 
K.  Cas.  680,  54  Vt.  200. 

111.  Liability  of  lessor  for  iiegrli- 
gciice  of  lessee,  generally.*  — Where  a 
company  permits  other  companies  or  per- 
sons to  exercise  the  franchises  of  running 
cars  drawn  by  steam  over  its  road,  the  com- 
pany owning  the  road,  and  to  which  the 
law  has  intrusted  the  franchise,  is  liable  for 
any  injury  done,  as  though  the  company 
owning  the  road  were  itself  running  the 
cars.  Macon  <S-  A.  R.  Co.  v.  Mayes,  49  Ga. 
355.— Applied  in  Central  R.  &  B.  Co.  v. 
Passmore,  90  Ga.  203.  DISTINGUISHED  IN 
Georgia  R.  &  B.  Co.  v.  Friddell,  79  Ga.  489 ; 
Kiilian  v.  Augusta  &  K.  R.  Co.,  79  Ga.  234; 
4  S.  E.  Rep.  165.  Followed  in  Abbott  v. 
Johnstown,  G.  &  K.  Horse  R.  Co..  2  Am.  & 
Eng.  R.  Cas.  541,  80  N.  Y.  27,  36  Am,  Rep. 
572.  Quoted  in  Chattanooga,  R.  &  C.  R. 
Co.  V.  Liddeil,  85  Ga.  482.  Reconciled  in 
East  Line  &  R.  R.  R.  Co.  v.  Culberson,  38 
Am.  &  Eng.  R.  Cas.  225,  72  Tex.  375,  3  L. 
R.  A.  567,  10  S.  W.  Rep.  706.  Reviewed 
JN  McCoy  V.  Kansas  City,  St.  J.  &  C.  B.  R. 
Co.,  36  Mo.  App.  ^i,— Palmer  v.  Utah  &*  N. 

Liability  of  company  owning  track  for  inju- 
ries during  its  use  by  another  company,  see  note, 
35  Am.  &  Eng.  R.  Cas.  456. 


R.  Co.,  36  Am.  &*  Eng.  R.  Cas.  443,  2  Idaho 
350, 16  Pac.  Rep.  553.  Aycock  v.  Raleigh  &* 
A.  A.  L.  R.  Co.,  89  N.  Car.  321.— Dis- 
tinguished IN  Sellars  v.  Richmond  &  D. 
R.  Co.,  25  Am.  &  Eng.  R.  Cas.  451,  94  N. 
Car.  654.  Reviewed  in  East  Line  &  R.  R. 
R.  Co.  V.  Culberson,  38  Am.  &  Eng.  R.  Cas. 
225,  72  Tex.  375,  3  L.  R.  A.  567,  10  S.  W. 
Rep.  706. 

This  principle  does  not  extend  to  cases 
where  the  cars  of  the  other  company  are 
not  rightfully  on  the  defendant's  road. 
Sellars  \.  Richmond  6^  D.  R.  Co.,  25  Am. 
«S-  Eng.  R.  Cas.  451,  94  A'.  Car.  654. — Dis- 
tinguishing Aycock  z/.  Raleigh  &  A.  A.  L. 
R.  Co.,  89  N.  Car.  321. 

A  chartered  railroad  company  permit- 
ting a  construction  company  to  use  its  fran- 
chises by  running  passenger  trains  over  and 
upon  its  railway  is  responsible  for  torts  to 
persons  not  connected  with  either  company 
negligently  committed  by  the  servants  en- 
gaged in  such  running,  and  these  servants, 
by  whomsoever  employed,  are  to  be  deemed 
and  treated,  relatively  to  the  public,  as  the 
servants  of  the  railroad  company.  Chatta- 
nocga,  R.  &>  C.  R.  Co.  v.  Whitehead,  89  Ga. 
190,  \^  S.  E.  Rep.  44. 

Where  a  railway  company  allows  another 
company  to  operate  its  road,  no  other  neg- 
ligence than  that  of  the  corporation  using 
the  track  need  be  alleged  or  proved  in  order 
to  fix  the  liability  of  the  owner  company. 
Pennsylvania  Co.  v.  Ellett,  42  Am.  &*  Eng. 
R.  Cas.  64,  132  ///.  654,  24  A^.  E.  Rep.  559. 

In  order  to  make  a  railway  liable  for  the 
negligence  of  another  company  using  its 
tracks,  it  must  be  shown  that  such  other 
company  was  running  its  train  over  the 
tracks  of  the  owner  company  under  a  con- 
tract with  it,  or  by  its  permission  and  con- 
sent. Pennsyhania  Co.  v.  Ellett,  42  Am.  6* 
Eng.  R.  Cas.  64,  132  ///.  654,  24  A'.  E.  Rep. 

559- 

Where  a  train,  while  moving  on  a  track 
belonging  to  one  company,  is  in  the  exclu- 
sive charge  of  the  servants  of  another  com- 
pany, the  former  company  is  not  responsible 
for  the  negligence  of  the  servants  of  the 
latter  company  in  conducting  such  move- 
ment of  the  train.  Clymer  v.  Central  R. 
Co.,  5  blatchf.  {U.  S.)  317. 

If  an  injury  results  from  the  negligence 
of  another  railroad  company  which  has  a 
joint  right  with  the  defendants  to  use  the 
defendants'  track,  under  a  lease  from  the 
defendants,  and  which  is  accordingly  run- 


,  At 


;-i4 


LEASES,  ETC.,  1 155-1 1«. 


iilng  trains  over  the  defendants'  road  on  its 
own  account,  the  defendants  are  not  re- 
sponsible. Fletcher  v.  Boston  Sr*  M.  R.  Co., 
I  Allen  {A/ ass.)  9. 

112.  Liability  of  lessor  for  defects 
ill  track.— Where  a  switch  is  not  properly 
secured  or  not  properly  constructed,  whether 
through  the  negligejice  of  the  employes  of 
the  company  owning  the  road,  or  those  of 
another  company  whom  such  railroad  per- 
mits to  run  trains  over  its  tracks,  the  com- 
pany owning  the  road  will  be  liable.  Pcorta 
&*  A'.  I.  R.  Co.  V.  Lane,  83  ///.  448. 

Where  one  company  pays  for  the  privi- 
lege of  running  its  trains  over  the  track  of 
another  company,  and  an  engineer  is  killed 
by  reason  of  a  defective  switching  appa- 
ratus, it  is  proper  to  submit  to  the  jury 
whether  the  company  owning  the  track  was 
guilty  of  negligence  in  not  having  adopted 
a  useful  improvement  in  switching,  in  com- 
mon use  at  the  time,  by  which  the  accident 
nught  have  been  avoided.  Smith  v.  New 
York  &*  H.  R.  Co.,  19  N.  V.  127  ;  affirmi)^ 
6  Z?«^r  225.— Distinguished  in  Coppinsz/. 
New  York  C.  &  H.  R.  R.  Co.,  43  Hun  26,  6 
N.  Y.  S.  R.  572.  Followed  in  Stodder  v. 
New  York,  L.  E.  &  W.  R.  Co.,  2  N.  Y.  Supp. 
780. 

The  owner  of  a  car,  which  was  placed 
upon  a  railroad  in  pursuance  of  a  license 
or  clearance  obtained  from  the  company  by 
another  in  his  own  name,  which  other  fur- 
nished the  loading  and  paid  the  tolls  for 
the  car  and  the  loading,  may  recover  dam- 
ages in  an  action  against  the  company  for  in- 
jury sustained  by  the  car  while  in  the  custody 
of  that  other,  under  that  clearance,  in  con- 
sequence of  the  insufficiency  and  the  bad 
condition  of  the  road.  Cumberland  Valley 
R.  Co.  V.  Hughes,  11  Pa.  St.  141. 

A  company,  by  giving  permission  to  an- 
other railroad  company  to  use  a  part  of 
its  track,  does  not  bind  itself  to  make  its 
track  safe,  nor  to  put  it  in  repair,  nor 
to  make  any  change  in  its  existing  state. 
Murch  v.  Concord  R.  Corp.,  29  N.  H.  9.  61 
Am.  Dec.  631.— Not  followed  in  Nugent 
V.  Boston  C.  &  M.  R.  Co.,  38  Am.  &  Eng. 
R.  Cas.  52,  80  Me.  62,  12  Atl.  Rep.  797 ; 
Braslin  v.  Somerville  Horse  R.  Co.,  32  Am. 
&  Eng.  R.  Cas.  406,  145  Mass.  64,  4  N. 
Eng.  Rep.  888,  13  N.  E.  Rep.  65.  Quoted 
IN  Pierce  v.  Concord  R.  Co.,  51  N.  H.  590. 
Such  a  company,  by  contr?' -".ing  to  let  to 
another  company  the  use  01  its  track,  is 
under  no  duty  to  the  passengers  o'  the 


other  railroad.  The  claim  of  such  passen- 
ger, if  injured,  is  on  the  company  with 
whom  he  contracts.  Murch  v.  Concord  R, 
Corp.,  29  iV.  //.  9,  61  Am.  Dec.  631. 

W'S.  Liability  of  conipaiiy  as  to 
hired  cars. — A  company  cannot  relieve 
itself  of  liability  by  making  an  unautliur- 
ized  lease  of  its  road  ;  but  where  individuals 
hire  freight  cars  to  be  loaded  as  they  choose, 
the  company  does  not  incur  any  risk  for 
the  manner  of  loading  such  cars.  Ohio  «5^ 
M.  R.  Co.  v.  Dunbar,  20  ///.  623.— Distin- 
guished in  Arrowsmith  v.  Nashville  &  D. 
R.  Co.,  57  Fed.  Rep.  165  ;  West  v.  St.  Louis, 

V.  &  F.    H.    R.  Co..  63  III.  545.      FOLLOWKD 

IN  Illinois  C.  R.  Co.  v.  Barron,  5  Wall.  (U. 
S.)  90;  Illinois  C.  R.  Co.  v.  Finnigan,  21 
111.  646.  Quoted  in  Balsley  v.  St.  Loui.s, 
A.  &.  T.  H.  R.  Co.,  25  Am.  &  Eng.  R.  Cas. 
497,  119  III.  68;  Singleton  v.  Souihwestern 
R.  Co.,  2!  Am.  &  Eng.  R.  Cas.  226,70  Ga. 
464,  48  Am.  Rep.  574. 

1 14.  Liability  of  company  wliere  it 
has  the  control  of  the  train.— A  com- 
pany is  responsible  for  an  injury  occasioned 
by  want  of  proper  care  and  prudence  on  the 
part  of  its  servants  in  the  management  of  a 
train  which  is  under  their  exclusive  care, 
direction,  and  control,  although  the  train 
belongs  to  another  company.  Fletcher  v. 
Boston  &*  M.  R.  Co..  i  Allen  (Afass.)  9. 

115.  Joint  liability.— A  railway  com- 
pany using,  by  agreement,  the  road  of  an- 
other company,  will  be  liable  for  damaijes 
resulting  from  its  negligence,  and  the  owner 
company,  to  whom  is  granted  the  control 
and  management  of  the  road,  will  also  be 
liable.  Pennsylvania  Co.  v.  Ellett,  42  Am. 
&»  Eitg.  R.  Cas.  64,  132  ///.  654,  24  A'.  E. 
Rep.  559. 

Where  a  number  of  railroad  companies 
enter  into  an  arrangement  by  which  the 
several  trains  run  by  each  over  the  roads  of 
the  others  are  to  run  in  the  interest  of  all, 
each  contributing  to  the  expense  and  shar- 
ing such  portion  of  the  profits  as  may  be 
determined  "jy  a  common  agent  agreed  upon 
by  them,  pach  of  the  companies  will  be 
liable  for  an  injury  occurring  through  the 
negligence  of  the  employes  on  any  one  of 
such  trains.  Jones  v.  Pennsylvania  R.  Co., 
8  Mackey  (D.  C.)  178. 

116.  Rule  as  to  fellow-servai<  .- 
Where  an  engineer  of  a  company  having 
running  privileges  over  the  track  of  another 
company  is  killed  through  the  negligence 
of  switchmen  in  the  employ  of  the  lessor, 


LEASES,  ETC.,  117-119. 


245 


the  engine«r  and  switchmen  are  not  fellow- 
servants,  so  as  to  defeat  a  recovery  against 
tlie  company  owning  the  tracic.  Smith  v. 
Ne-M  York  &«•  //.  R.  Co.,  19  N.  V.  127  ;  af- 
firming 6  DiuT  225.— Approved  in  Young 
V.  New  York  C.  R.  Co.,  30  Barb.  229.  Dis- 
TiNC.uiSHED  IN  Sawyer  v.  Minneapolis  & 
St.  L.  R.  Co.,  33  Am.  &  Eng.  R.  Cas.  394, 
38  Minn.  103.  35  N.  W.  Rep.  671.  8  Am.  St. 
Rej>.  648.  QuoTKi)  IN  Svenson  v.  Atlantic 
Mail  Steamship  Co.,  57  N.  Y.  108. 

But  when  a  company  has  the  privilege  of 
running  its  trains  over  the  track  of  another, 
subject  to  tlie  control,  rules,  and  orders  of 
the  lessor,  the  employes  of  the  two  com- 
panies are  fellow-servants  of  the  lessor. 
Chicago,  n.  &>  Q.  R.  Co.  v.  Clark,  2  ///. 
App.  596.— Followed  in  Chicago,  B.  & 
Q.  R.  Co.  V.  Van  Hagen,  2  111.  App.  602. 

117.  How  coinpeiisutioii  for  use 
of  track  determined.— A  contract  be- 
tween two  companies  provided  that  one 
should  have  the  right  to  use  certain  tracks 
of  the  other  "upon  reasonable  terms." 
//(•/(/,  that  the  expense  of  keeping  up  the 
track  should  be  divided  between  the  two 
companies  upon  a  wheelage  basis;  and 
where  it  appears  that  the  second  company 
comes  in  as  an  equal  competitor  in  the 
business  taken  up  on  the  portion  of  the 
road  used  in  common,  and  nothing  prevents 
it  from  sharing  in  the  benefits  of  the  busi- 
ness equally,  it  should  pay  interest  on  one 
half  of  the  value  of  the  tracks.  Central 
Trust  Co.  V.  IVabash,  St.  L.  &>  P.  R.  Co., 
29  Fed.  Rep.  546. 

2.   Under  English  Statutes. 

118.  Generally. — In  the  absence  of 
evidence  to  the  contrary,  trains  running 
over  a  railway  are  to  be  presumed  to  be  the 
property  of,  or  at  any  rate  under  the  con- 
trol of,  the  company  to  whom  the  line  be- 
longs, although  other  companies  have  run- 
ning powers  over  the  part  of  the  line  in 
question.  AyUs  v.  Soiilh-Eastern  R.  Co.,  37 
L.J.  Ex.  104,  L.  R.  3  Ex.  146. 

.An  agreement  between  two  companies, 
whereby  each  is  given  running  powers  over 
the  lines  of  the  other,  and  whereby  each 
agrees  to  send  by  the  other's  lines  all  traffic 
not  otherwise  consigned,  does  not  resemble 
a  contract  of  partnership,  or  of  hiring  and 
service.  Llanelly  R.  6-  D.  Co.  v.  London 
*•  N.  \V.  A\  Co.,  L.  R.  7  H.  L.  Cas.  550,  45 
L.J.  Ck.  D.  539,  23   IV.  R.  927.  J2  L.  T. 


575 ;  see  L.  R.  8  Ch.  942,  42  L.J.  Ch.  884,  29 
L.  T.  357.  21    IV.  R.  889. 

One  railway  company  has  no  right  to  run 
over  the  line  of  another  company,  inde- 
pendently of  the  rules  and  regulations, 
which  the  directors  are  empowered,  by  act 
of  parliament,  to  make  for  the  management 
of  the  line.  Rhymney  R.  Co.  v.  Taff  Vale 
R.  Co.,  29  Beav.  153,  T  Jur.  N.  S.  202,  30  Z, 
/.  Ch.  482,  9  IV.  R.  222,  4  L.  T.  227 ;  af- 
firmed in  4  L.  T.  534. 

It  is  uoubtful  whether  the  facilities  neces- 
sary to  enable  a  company  to  work  its  traffic 
over  the  railway  of  another  company,  or,  in 
other  words,  to  exercise  its  running  powers, 
are  facilities  an  owning  company  are 
bound  to  provide  under  the  Railway  and 
Canal  Traffic  Act  1854,  unless  the  matters 
required  are  such  as  are  necessary  to  keep 
their  own  line  in  a  proper  condition  for  tiie 
receipt,  forwarding,  and  delivery  of  traffic. 
Swindon,  M.  &^  A.  R.  Co.  v.  Great  Western 
R.  Co.,  4  Ry.  <S-C.  T.  Cas.  173. 

Where  one  railway  company  gives  to  an- 
other company  power  to  use  its  railway  and 
the  works  belonging  to  it,  it  undertakes  to 
perform  all  those  services  which  must  be 
performed  if  the  privilege  given  is  to  be  ex- 
ercised at  all.  Great  Western  R.  Co.  v. 
Bristol  Port.  R.  6-  P.  Co.,  5  Ry.  &*  C.  T. 
Cas.  94. 

1 19.  How  conipensatiou  for  run- 
ning powers  estimated.— In  ascertain- 
ing the  payment  to  be  made  by  a  company 
for  the  exercise  of  running  powers  over  a 
portionof  the  lineof  anothercompanyregard 
is  to  be  had  to  the  extent  and  remunera- 
tive character  of  the  traffic  of  the  running 
company  over  or  in  connection  with  such 
portion,  and,  in  the  absence  of  exceptional 
circumstances,  it  is  proper  to  take  their 
average  net  receipts  per  mile,  and  to  multi- 
ply the  amount  by  the  mileage  of  the  por- 
tion so  run  over.  But  if  the  traffic  on  the 
portion  run  over  is  exceptionably  profitable, 
then  the  mileage  of  such  portion  should  be 
computed  by  increasing  it  so  as  to  make 
the  payment  in  proportion  to  such  differ- 
ence. Carmarthen  &*  C.  R.  Co.  v.  Central 
Wales  6-  C.  J.  R.  Co.,  2  Ry.  &•  C.  T.  Cas. 

23- 

Another  mode  is  to  take  a  percentage  for 
interest  and  for  maintenance  and  renewal 
upon  the  cost  or  value  of  the  portion  so  run 
over,  and  if  the  use  of  the  portion  of  the 
line  be  equal  by  the  two  companies,  the 
running  company  should  pay  one  half  of 


'M'' 


\-w     i| 


*i\ 


346 


LEASES,  ETC.,  11». 


this  annual  percentage.  Carmarthen  &*  C. 
Ji.  Co.  V.  Central  IVales  6-  C.  J.  A\  Co.,  2 
Jiy.  (S-  C.  T.  Cas.  23. 

Whatever  the  amount  to  be  paid  for  the 
use  of  the  line,  it  should  be  in  the  shape  of 
tolls,  and  should  vary  with  the  actual  traffic 
of  the  running  company  from  time  to  time  ; 
but  for  the  use  of  the  station  a  fixed  rent 
may  be  adopted,  the  amount  to  be  a  per- 
centage for  interest  and  for  maintenance 
and  renewal,  upon  the  costs  of  the  station, 
and  to  be  payable  by  the  running  company 
in  the  ratio  wliich  its  use  of  the  station 
bears  to  tlie  total  use  made  of  it.  Carinar- 
t/ien  &>  C.  J\.  Co.  V.  Central  IVales  <&<•  C.J. 
A'.  Co..  2  y>>.  <S-  C.  T.  Cas.  23. 

The  B.  &  D.  R.  Co.  had  powers  under 
their  special  act  of  running  over  the  railway 
of  the  C.  R.  Co.,  and  the  terms  and  condi- 
tions upon  whicii  they  were  t"  exercise  such 
powers  for  through  passenger  traffic  were 
referred  to  tlie  decision  of  the  railway 
commissioners.  It  appeared  that  ihe  G. 
W.  R.  Co.  worked  the  line  of  the  B.  &  D. 
Co.,  and  would  exercise  the  running  powers 
so  claimed.  Held,  that  the  G.  W.  Co.  should 
be  made  parties  to  the  arbitration  ;  that  the 
toll  to  be  paid  for  the  running  powersshould 
be  a  mileage  proportion  of  the  through 
fares  less  government  duty,  and  a  percent- 
age (20  per  cent.)  for  working  expenses,  and 
that  the  conditions  of  the  exercise  of  such 
powers  should  be  (i)  that  if  the  running 
company  required  works  to  be  constructed, 
they  should  bear  the  cost  in  the  first  in- 
stance, the  owning  company  paying  them 
five  per  cent,  upon  the  outlay ;  (2)  that  the 
hours  of  arrival  and  departure  of  the  trains 
of  the  running  company  should  be  fixed  by 
them,  and  if  objected  to  by  the  owning 
company,  should  be  fixed  by  the  com- 
missioners; and  (3)  that  in  the  interest  of 
public  safety  the  trains  of  the  running  com- 
pany, in  passing  along  a  viaduct,  which 
crossed  an  estuary  of  the  sea,  should  not 
exceed  in  weight  the  ordinary  goods  trains 
of  the  owning  company,  nor  in  speed  the  or- 
dinary passenger  trains  of  the  owning  com- 
pany. Bala  &*  D.  R.  Co.  v.  Cambrian  R. 
Co..  2  Ry.  &^  C.  T.  Cas.  47. 

By  act  of  parliament  the  North  British 
R.  Co.  was  given  running  powers  over  the 
Scottish  Central  line  of  the  Caledonian  R. 
Co.,  and  it  was  provided  that  the  North  B. 
Co.  should  fix  the  rates  and  fares  in  respect 
of  traffic  passing  over  the  Scottish  C.  line 
and  the  lines  of  the  North  B.  Co.  (called 


East  Coast  traffic),  and  that  the  receipts 
should  be  divided  between  the  two  com- 
panies according  to  mileage,  subject  to  cer- 
tain minimum  rates  per  mile,  in  respect  of 
such  traffic,  which  the  Caledonian  Co.  was 
entitled  to  receive;  provided  that  when  ilm 
Caledonian  Co.  carried  competitive  traffic 
at  rates  or  fares  below  these  minimum 
sums,  sucii  lower  sums  should  be  adopted 
in  lieu  of  the  minimum  sums  fixed.  Tiie 
North  B.  Co.  issued  season  and  traders' 
tickets  between  places  on  their  own  and 
places  on  the  Scottish  C.  line,  and  claimed 
to  fix  the  rates  at  which  they  charged  for 
them,  according  to  the  whole  amount  of 
the  traders'  traffic  over  their  system.  Held, 
that  the  Caledonian  Co.  were  only  entitled 
to  a  sum  per  mile  of  the  Scottish  C.  line 
traveled  over  by  a  holder  of  a  season  or 
traders'  ticket,  not  less  than  the  sum  per 
mile  which  they  received  from  holders  of 
season  or  traders'  tickets  issued  by  them- 
selves in  respect  of  traffic  competing  with 
the  East  Coast  traffic,  but  that  the  qualifi- 
cation for  such  traders'  tickets  issued  by 
the  North  B.  Co.  must  be  in  respect  of  East 
Coast  traffic  exclusively.  Caledonian  R.  Co. 
V.  North  British  R.  Co.,  2  Ry.  &*  C.  T.  Cas. 
271. 

By  an  act  of  parliament  the  M.  R.  Co. 
were  given  running  powers  over  a  line  of 
the  N.  &  B.  R.  Co.,  twenty-nine  miles  in 
length,  at  such  through  rates  as  they  mi,s,'ht 
fix  on  their  own  responsibility,  the  amount 
to  be  paid  to  the  N.  &  B.  R.  Co.  to  be  set- 
tled by  the  railway  commissioners.  Held, 
that  in  the  absence  of  special  circum- 
stances, where  the  line  run  over  is  of  the 
length  of  twenty-nine  miles,  proportion  by 
mileage  is  a  sufficient  payment  for  the  exer- 
cise of  running  powers,  but  the  M.  Co., 
being  able  without  consent  to  fix  the  rates 
over  the  N.  &  B.  R.,  must  pay  an  addi- 
tional five  per  cent,  to  the  N.  &  B.  Co.'s 
share  of  net  receipts  by  mileage,  forty  per 
cent,  of  the  gross  receipts,  less  terminals, 
being  allowed  the  M.  Co.  for  working  ex- 
penses. Midland  R.  Co.  v.  Neath  &*  B.  R. 
Co.,  2  Ry.  6-  C.  T.  Cas.  366. 

The  R.  R.  Co.  had  running  powers  over 
part  of  the  T.  R.  to  P.  Junction  (whence  a 
line  leased  and  worked  by  the  T.  Co.  ran  to 
P.  Docks),  and  it  was  bound  by  statute 
to  deliver  traffic  destined  for  P.  Docks  into 
the  sidings  of  the  T.  Co.  at  the  said  junc- 
tion ;  the  remuneration  for  the  exercise  of 
such  running  powers  was  to  be  the  pay- 


m.fm 


LEASES,  ETC.,  130-122. 


a47 


nient  of  a  mileage  rate  in  respect  of  the 
part  of  the  T.  Co.'s  line  run  over.  NM, 
that  the  distance  in  respect  of  wiiich  pay- 
ment was  to  be  made  ought  to  be  calcu- 
lated up  to  the  point  which  the  trucks 
reached  when  delivered  by  the  R.  Co,  into 
the  sidings  of  the  T.  Co.,  and  not  to  the 
point  of  junction  at  P.  7'tiff'  Vale  A\ 
Co.  V.  R/iymney  K.  Co.,  2  Ry.  «S-  C.  T.  Cas. 
176. 

Tiie  T.  Co.  applied  to  the  commissioners 
under  the  Regulation  of  Railways  Act 
1873,  §  8,  to  hiive  pecuniary  terms  settled 
for  accommodation  alforded  the  R.  Co.  by 
shunting  engines  at  P.  Held,  that  as  tlie 
same  service  was  performed  for  ail  traffic 
on  the  P.  line,  there  was  no  reason  why  tlie 
R.  Co.'s  traffic  should  be  subjected  to  a  spe- 
cial charge,  and,  moreover,  th;it  a  working 
expense  incidental  to  transport  was  not  ac- 
commodation of  the  sort  contemplated  by 
the  act,  to  be  specially  paid  for  by  the  R. 
Co.  Tuff  Vale  K.  Co.  v.  Khymney  R.  Co., 
2  Ry.&'  C.  T.  Cas.  176. 

120.  Compensation  where  third 
rati  is  neccs8ary  for  narrow  gaufire 
nuui.-  A  narrow  gauge  railway  which 
joined  a  broad  gauge  company  was,  under 
various  acts  of  parliament,  possessed  of  the 
right  to  require  the  latter  to  lay  down  a 
third  rail,  so  as  to  render  their  '  ne  capable 
of  carrying  narrow  gauge  traffic,  the  terms 
for  the  construction  and  the  terms  for  the 
user  of  the  additional  rail,  in  case  of  dis- 
agreement, to  be  settled  by  the  board  of 
irade.  Held,  *hat  the  broad  gauge  com- 
pany was  not  in  so  good  a  position  as  if 
it  had,  at  the  outset,  had  unconditional 
possession  of  its  district,  and  been  required 
to  cede  running  powers  to  a  competitive 
company  and  add  to  a  line  not  constructed 
with  any  such  prospect ;  and,  that  the  right 
mode  of  paying  it  for  tiie  extra  rail  and 
use  of  its  line  was  by  a  mileage  division  of 
traffic  receipts,  its  proportion  being  guaran- 
teed by  the  running  company  to  amount  to 
not  less  than  5  per  cent,  on  its  expenditure 
in  respect  of  the  extra  rail  and  a  sum  equal 
to  3  per  cent,  thereon  in  respect  of  main- 
tenance. South  Devon  R,  Co.  v.  Devon  &• 
C.  R.  Co.,  2  Ry.  5".  C.  T.  Cas.  348, 

Except  as  regarded  local  traffic,  the  run- 
ning company  was  allowed  to  fix  the  rates 
at  which  it  carried,  the  owning  company 
having  power  to  demand  a  reference  to  ar- 
bitration, pending  which  the  disputed  rates 
were  to  remain  in  force.    SouiA  Devon  R. 


Co.  V.  Devon  &^  C.  J!.  Co.,  2  Ry.  &>  C.  T. 
Cas.  348. 

The  owning  company  having,  owing  to 
the  delay  of  the  running  company,  incurred 
its  expenditure  unnecessarily  early,  the  run- 
ning company  was  ordered  10  pay  interest 
at  5  per  cent,  upon  such  expenditures  dur- 
ing the  delay.  South  Devon  A*.  Co.  v. 
Devon  &>  C.  R.  Co.,  2  Ry.  6-  C.  T.  Cas.  348. 

The  amount  of  the  outlay  upon  the  addi- 
tional rail  being  disputed,  the  court  ordered 
the  accounts  to  be  ciiecked  by  the  engi- 
neers of  both  companies,  disputes  as  to 
amounts  to  be  referred  to  an  independent 
engineer,  to  be  appointed  by  the  commis- 
sioners in  default  of  agreement,  and  dis- 
putes in  principle,  as  to  what  outlay  was 
incurred  in  respect  of  the  additional  rail, 
to  be  referred  to  the  commissioners.  South 
Devon  R.  Co.  v.  Devon  &*  C.  A'.  Co.,  2  J\'y. 
&•  C.  T.  Cas.  348. 

121.  Duration  of  term.— An  agree- 
ment between  two  railway  companies 
whereby  one  is  given  running  powers  over 
the  line  of  the  other,  and  the  latter  com- 
pany is  to  be  at  liberty  to  call  on  the  for- 
mer to  carry  goods  and  passengers  upon  its 
local  lines,  and  whereby  both  companies 
bind  themselves  to  send  by  each  other's 
lines  all  traffic  not  otherwise  consigned, 
but  containing  no  mention  of  any  time  for 
which  it  is  to  endure,  or  how  it  may  be 
terminated,  is  a  permanent  agreement,  and 
a  notice  to  terminate  it  at  the  end  of  six 
months  from  a  given  time  is  invalid.  Lla- 
nelly  R.  &*  D.  Co.  v.  London  <S-  N.  W.  R. 
Co.,  L.  R.  7  H.  L.  Cas.  550,  45  L.J.  Ch.  D.' 
539.  23  IV.  R.  927,  32  L,  T.  575  ;  affirmutg 
L.  R.  8  Ch.  App.  942. 

122.  What  is  local  traffic  — Where 
two  companies  give  mutual  running  powers 
to  one  another  over  parts  of  their  respect- 
ive lines,  with  a  stipulation  that  local  traffic 
shall  be  respected,  by  local  traffic  is  meant 
the  traffic  between  two  stations,  both  being 
on  one  of  the  lines  over  which  the  running 
powers  extended.  Midland  R.  Co.  v.  Man- 
chester, S.  &'  L.  R.  Co.,  22  L.  r.  601. 

Any  differences  arising  between  the  two 
companies  occasioned  by  any  hardship  felt 
in  the  working  of  such  an  agreement  may 
be  made  the  subject  of  arbitration  under  22 
&  23  Vict.  c.  59.  Llanelly  R.  <S-  D.  Co. 
V.  London  6-  N.  JV.  R.  Co.,  L.  A\  7  H. 
L.  Cas.  550.  45  L.  J.  Ch.  D.  539,  23  W.  R. 
927,  32  L.  T.  575  ;  see  L.  R.  8  Ch.  App.  942, 
42  L.J.  Ch.  884,  29  /,.  T.  357.  21  W.  K.  889. 


■■4 


n--  ^ 


|Wi$^^ 


pr^? 


218 


LEASES,  ETC.,  123-120. 


..M 


Traffic  to  be  carried  over  line  A.  by  the 
exercise  of  tiie  runniiij;  powers  uf  railway 
company  B.  (which  company  was  proliibited 
from  carrying  "  loci  rallic  "  between  cer- 
tain stations)  is  not  local  traffic  if  it  is  de- 
livered to  the  stations  in  question  from  the 
line  of  an  independent  company.  Plymouth 
«S-  D.  R.  Co.  V.  Great  Western  A'.  Co.,  t  Ky. 
4S>»  C.  T.  Cas.  loi.  And  see  Caledonian  R, 
Co.  V.  Olas^'^ow  i>  S.  W.  R,  Co.,  3  Ry,  iS-  C. 
T.  Cas.  395. 

Vl'A,  Itifclit  of  owiiint;  coiiiimiiy  to 
(leiiiaiKl  rebate.— The  North  VV.  R.  Co. 
had  an  agreement,  in  1864,  for  running 
powers  over  the  Cambrian  R.  Co.'s  line 
(which  joined  its  line  at  W.,  where  it 
I'urnied  the  only  place  of  junction)  and 
paid  a  rebate  in  respect  of  tratJic  sent  from 
tlic  Cambrian  line  to  its  line.  By  a  sub- 
sequent act  of  parliament,  in  1867,  the 
Carnarvonshire  and  Cambrian  R.  Cos.  had 
mutual  running  powers,  their  lines  forming 
a  junction  at  A.  The  line  of  the  Carnar- 
vonshire Co.,  and  all  its  rights  and  obli- 
gations were  transferred  to  the  North  W. 
Co.  by  an  act  which  provided  that  tlie  North 
\V.  Co.  sliould  not  run  over  the  Cambrian 
Co.'s  line,  via  A.,  without  the  consent  of  the 
Cambrian  Co.,  and  vice  versa.  After  the 
amalgamation  the  Cambrian  Co.  claimed 
rebate  under  the  agreement  in  respect  of 
traffic  sent  to  the  North  W.  Co.'s  line  via 
A.  Held,  that  the  proviso  in  the  act  only 
applied  to  the  mutual  running  powers  given 
by  the  act  of  1867  above  mentioned,  and 
not  to  the  running  powers  given  by  the 
•agreement  of  1864,  which  still  remained,  and 
that  the  Cambrian  Co.  was  entitled  to  the 
rebate  claimed  upon  such  traffic  as  was  sent 
via  A.  Cambrian  R.  Co.  v.  London  &'  A\ 
W.  R.  Co.,  2  Ry.  &•  C.  T.  Cas.  311. 

124.  Rie:lit  to  use  Iior.sc  power.— 
The  respondents  owned  land  and  worked  a 
•single  line  of  railway  four  and  one  half 
miles  long,  extending  from  the  town  of 
Swansea  to  the  Mumbles.  The  applicants 
were  empowered  to  make  a  system  of  tram- 
ways in  Swansea  and  the  suburbs,  forming 
junctions  with  the  respondents'  line,  which 
they  had  power  to  pass  over  and  use  with 
their  carriages  and  servants,  and  for  the 
purposes  of  traffic  of  all  kinds.  At  the 
date  of  the  applicants'  act  containing  this 
power  the  respondents'  line  was  worked  by 
horse  power  ;  subsequently,  and  at  the  date 
of  the  application,  the  respondents  used 


steam  power.  Held,  that  the  applicants' 
running  powers  entitled  them  to  use  re- 
spondents' line  with  horse  power.  Swan- 
sea Imp.  &*  T.  Co.  V.  Swansea  &*  M.  R,  Co., 
3  Ry.  &*  C.  T.  CasT.  339. 

Tlie  running  powers  were  to  be  exercised 
on  terms  to  be  agreed  upon,  or,  in  default 
of  agreement,  to  be  settled  by  arbitration, 
and  the  owners  of  the  railway  were  to  make 
all  arrangements  required  by  agreement  or 
arbitration  in  that  behalf.  Held,  that 
"  terms "  included  the  necessary  arrange- 
ments for  regulating  the  joint  traffic.  Swan- 
sea  Imp.  tS-  T,  Co.  v.  Swansea  &*  M.  R.  Co., 
3  Ry.  1^  C.  T,  Cas.  339. 

125.  When  eoiitrnct  cxtcndM  to 
bruiicli  lines  MubHeqiicutly  acquired. 
— Company  A.  made  an  agreement  with 
company  B.  to  allow  B.  to  carry  passengers 
and  goods  over  the  A.  line  on  certain  terms. 
The  A.  company  amalgamated  with  other 
companies,  obtained  several  branches,  and 
assumed  a  different  name.  The  B.  company 
did  the  same.  Held,  that  the  agreement 
applied  to  all  traffic  coming  from  the  B.  line 
upon  the  A,  line,  however  originating, 
whether  only  upon  the  original  B.  line,  or 
in,  from,  or  through  any  of  its  amalgamated 
lines.  Lancashire  &•  V.  R.  Co.  v.  Fast 
Lancashire  R.  Co.,  5  //.  L.  Cas.  792,  ijtir. 
N.  S.  767.  25  L.J.  Ex.  278,  S.  C.  9  Ex.  591. 
23  L.  J.  Ex.  1 57. 

12U.  FitiiesH  of  locomotive.  — 
Where  an  engine  encumbers  a  railway  with- 
out certificate  of  approval,  the  company  has 
the  common  law  right  of  distress  damage 
feasant.  Ant  berg  ate  N,  &^  B.  &•  E.  J.  R. 
Co.  V.  Midland' R.  Co.,  2  El.  &•  Bl.  793,  18 
/«r.  243,  23  L.J.  Q.B.  17. 

Equity  will  enforce  by  injunction  the 
statutory  provisions  relating  to  the  approval 
of  engines  used  by  one  company  on  the  line 
of  another,  notwithstanding  the  practice  of 
companies  has  been  to  rely  on  each  other 
with  respect  to  the  fitness  of  their  engines, 
and  notwithstanding,  also,  that  to  enforce 
the  right  of  inspection  would  occasion  great 
inconvenience  to  the  public  traffic,  and  al- 
though it  is  sought  to  enforce  the  statute 
merely  for  the  purpose  of  impeding  the 
traffic  of  a  competing  company.  Midland 
R.  Co.  V.  Ambergate,  N.  &•  B.  &*  E.  J.  R. 
Co.,  10  Hare  359. 

Upon  the  reference  of  a  diflference  be- 
tween two  railway  companies  as  to  the  fit- 
ness of  a  locomotive  of  the  one  to  run  over 


LEASES,  ETC.,  127-120. 


M9 


the  line  of  the  other— //<■/</.  after  inspection 
of  the  engine  and  of  the  line  over  which  it 
was  intended  to  run,  that  the  locomotive 
objected  to,  a  Fairlie  engine  from  sixty  to 
seventy  tons  in  weight  and  ten  feet  in  ex- 
treme width,  was,  under  the  circumstances, 
not  unfit  to  be  used  upon  the  line  of  the 
objecting  company.  £as/  iS-  //'./.  A'.  Co. 
V.  Xorthampton  &*  B.  J.  K.  Co.,  2  Ry.  &*  C. 
T.  Cis.  293. 

127.  Fixiiiff  lioiirs  of  arrival  ami 
dt'pnrture  ol  trains.— It  was  provided 
by  statute  that  the  C.  R.  Co.  should,  for  the 
accommodation  of  certain  traffic,  run  and 
carry  forward  between  L.  and  P.  a  train  in 
conjunction  with  every  train  which  should 
be  run  by  the  E.  C.  Cos.,  for  the  accommo- 
dation of  that  traffic,  between  L.  and  places 
on  their  lines;  the  speed  and  places  of  stop- 
page of  such  train  to  be  regulated  by  the  E. 
C.  Cos.  HM,  that  the  E.  C.  Cos.  could  en- 
force an  alteration  in  the  service  of  trains 
run  in  conjunction  by  the  C.  Co.  without 
tlie  consent  of  the  latter,  but  were  not  en- 
titled to  fix  the  times  of  arrival  and  depart- 
ure of  such  trains.  Caledonian  A\  Co.  v. 
Cn\U  Northern  R.  Co.,  2  Ry.  <S-  C.  T.  Cas. 

yn- 

128.  Procedure— A  bill  in  equity  for 
an  injunction  to  restrain  a  railway  company 
from  preventing  a  colliery  company  to  run 
engines  and  carriages  over  part  of  its  line, 
under  the  powers  of  the  Railways  Clauses 
Act  1845,  §  93,  will  not  lie,  since  equity  will 
not  order  the  performance  of  acts  requiring 
continuous  attention  and  which  cannot  be 
seen  to  by  the  court.  Powell  Dtiffryn  Steam 
Coal  Co.  V.  Taff  Vale  R.  Co.,  L.  R.  9  Ch.  331. 
43  L.J.  Ch.  575,  30  L.  T.  208;  affirming  29 
L.  T.  575,  22  \V.  R.  182,  26  Z.  T.  357,  20  W. 
R.  460.— Distinguished  in  Woodruff  v. 
Brecon  &  M.  T.  J.  R.  Co.,  L.  R.  28  Ch.  D. 
190,  54  L.  J.  Ch.  620,  52  L.  T.  69,  33  W.  R. 
125. 

A  railway  company  having  running  powers 
over  the  line  of  another  company  has  the 
burden  to  show  that  regulations  made  by 
the  owning  company,  as  to  the  construction 
of  carriages  to  be  used,  are  unreasonable  and 
unnecessary;  such  company  cannot  insist 
upon  its  right  as  conferred  by  an  act  of 
parliament,  and  at  the  same  time  contend 
that  the  regulations  are  unreasonable  and 
inapplicable  to  its  particular  traffic.  Rhym- 
ney  K.  Co.  v.  Taj"  Vale,  R.  Co.  29  Beav.  1 53. 
Ijur.  X.  S.  202,  30  /,.  /.  Ch.  482.  9  H\  R. 
222,  4  L.  T.  227  ;  affirmed  in  4  L.  T.  534. 


III.  WOBKINO  AOBEEXEVTS. 


120.  Power  to  make.— A  railway 
company  cannot  without  authority  of  par- 
liament agree  to  woric  the  line  of  another 
coMipany  or  to  hand  over  its  line  for  tliat 
purpose  to  another  Cfjmpany.  Winch  v. 
Birkenhead,  L.  S^  C.J.  R.  Co.,  5  De  G.  &> 
S.  562,  16  Jur.  1035. 

Equity  will  not  interfere  to  prevent  a 
railway  company  from  agreeing  with  an- 
other company  for  an  application  to  parlia- 
ment for  power  to  enable  one  company  to 
work  the  line  of  the  other.  Such  an  agree- 
ment is  innocent.  Winch  v.  Birkenhead, 
L.  S^  C.  J.  R.  Co.,  5  Ve  Li.  >S-  S.  562,  lO  Jur. 

>o35- 

One  railway  company  may  contract  with 
another  to  supply  it  with  rolling  stock  upon 
receiving  a  certain  annual  payment  and 
having  certain  other  advantages,  where 
such  companies  are  authorized  by  statute  to 
"  enter  into  agreement  with  respect  to  the 
working,  maintenance,  and  management," 
and  "  to  enter  into  any  contracts  or  agree- 
ments for  effecting  all  or  any  of  the  purposes 
of  its  act  or  any  objects  incidental  to  the 
execution  thereof."  Attorney-General  v. 
Great  Eastern  R.  Co.,  L.  R.  5  App.  Cas.  473, 
49  L.  J.  Ch.  D.  S4S.  42  L.  T.  810,  28  //'. 
R.  769 ;  affirming  L.  R.  1 1  Ch.  D.  449,  48 
L.J.  Ch.  428.  40  Z.  r.  265.  27  //'.  R.  759. 
—  Considered  in  Attorney  -  General  v. 
Shrewsbury  Bridge  Co.,  L.  R.  21  Ch.  D.  752, 
51  L.  J.  Ch.  746,  46  L.  T.  687,  30  W.  R.  916. 

A  clause  in  a  working  agreement  between 
two  railway  companies  that  "  neither  com- 
pany shall  make  any  bargain,  treaty,  agree- 
ment, or  arrangement  with  any  other 
company,  or  do  any  other  act  directly  or 
indirectly  to  affect  injuriously  the  traffic  of 
the  other  company,  or  prejudice  this  agree- 
ment without  the  consent  of  such  other 
company,"  is  prejudicial  to  the  interests  of 
the  public,  as  it  does  not  leave  the  com- 
panies at  liberty  to  accommodate  the  use  of 
their  lines  to  what  is  of  advantage  to  traffic, 
and  must  be  modified.  Huddersfield  v. 
Great  Northern  R.  Co.,  4  Ry.  Sf  C.  T.  Cas. 

44- 

It  is  illegal  for  a  railway  company  consti- 
tuted under  an  act  of  parliament  to  agree 
with  two  other  companies  that  the  whole 
concern,  without  encumbrance,  when  com- 
pleted shall  be  worked  by  those  two  com- 
panies, who  shall  have  perfect  control  and 
exercise    of    all    the   rights   of    the    first 


■.A 


ST 


u. 


850 


LEASES,  ETC.,  130,  131. 


company,  and  who  shall  find  stock  and 
work  the  concern  for  twenty-one  years. 
Such  an  agreement  is  a  violation  of  the  act 
under  which  the  first-mentioned  company 
was  constituted.  JStman  v.  Kufford,  i  Sim. 
N.  S.  550,  i5/«r.  914.  20  A.y.  C/i.  537. 

Where  a  railway  company  has  illegally 
loaned  money  to  another  company,  and 
subsequently  a  statute  is  passed  legalizing 
such  loan,  it  becomes  «..  lawful  for  it  to  ap- 
ply its  funds  for  the  other  company  as  for 
maintaining  its  own  railway.  Comiiiircial 
Hank  of  Canaiia  v.  Great  IVt'stefn  A'.  Co., 
13  /,.  T.  105,  3  Moore  J'.  C.  C.  /V.  S.  295. 

The  court  is  unwilling,  except  on  some 
real  substantial  objection  to  a  working 
agreement,  to  refuse  approval  of  it,  wliere 
the  company  may,  perhaps,  in  consequence 
lose  the  opportunity  of  being  able  to  com- 
plete their  railway  within  the  time  limited 
by  their  act;  the  fact  that  the  company, 
who  under  the  agreement  are  to  work  the 
line  are  unable  to  pay  a  dividend  on  their 
capital,  and  unable,  with  their  existing  re- 
sources, to  keep  their  own  line  in  proper 
repair,  is  not  a  sufficient  ground  for  such 
refusal  where  they  have  advantages  (such  as 
a  line  adjoining  the  line  agreed  to  be 
worked)  over  any  other  company  who  could 
compete  for  the  working  of  the  line.  In  re 
W'. :  Cork  a-  /.  V.  A'.  Co..  2  Ay.  &•  C.  T. 
Cas.  334. 

The  A.  company  being  owner  of  a  station 
enters  into  an  agreement  with  the  B.  com- 
pany to  make  a  new  junction  between  their 
respective  lines,  so  that  B.  company  may  use 
such  station.  C.  company,  having  running 
powers  over  A.  company's  line,  subsequent- 
ly enters  into  agreement  with  B.  company 
for  use  of  B.  company's  line.  An  attempt 
of  C.  company  to  go  from  B.  company's  line 
to  A.  company's  line  over  the  junction  was 
resisted,  on  the  ground  that  C.'s  agreement 
with  B.  did  not  give  a  right  to  use  such 
junction  ;  and  even  if  it  did,  such  agreement 
was  ultra  vires  and  invalid  as  being  a  dele- 
gation of  statutory  powers,  and,  as  such, 
against  public  policy.  Held  (reversing  the 
decision  of  the  master  of  the  rolls),  that  the 
effect  in  law  of  the  right  to  make  the  junc- 
tion was  to  make  the  two  lines  one  contin- 
uous line,  which  the  public  had  a  right  to 
use,  and  therefore  also  a  company  working 
under  arrangements  with  companies  owning 
the  two  lines ;  that  the  agreement,  as 
stated,  did  not  amount  to  a  delegation  of 
statutory  powers,   nor  was  it  ultra  vires. 


Midland  A'.  Co.  v.  Great  Western  R.  Co.,  42 
L.  J.  Ch.  438,  I  Ky.  &^  C.  T.  Cas.  24. 

1:10.  ICiKlit  of  tliini  piirtit'N  to  oli. 
jcct  to.— The  S.  R.  Co.  and  the  N.  \V.  K. 
Co.  appliefl  for  the  approval  of  an  agree- 
ment providing  for  the  working  of  the  line 
of  the  former  company  by  the  latter  in  per- 
petuity ;  certain  other  companies  and  the 
corporation  of  and  traders  at  N.,  a  seaport 
town  in  communication  with  the  S.  line, 
raised  objections  to  the  approval  of  tiie 
agreement,  on  the  ground  that  it  would 
change  the  course  of  traffic  which  went  to 
N.  and  send  it  in  the  opposite  direction,  and 
tiiat  part  of  the  S.  line  was  in  the  most  di- 
rect line  of  communication  by  whicii  certain 
traffic  could  be  carried  by  the  G,  VV.  Ky. 
(which  competed  with  the  N.  VV.  Ry.)  to 
N.,  and  the  working  of  the  S.  line  by  the 
N.  W.  Co.  would  act  unfavorably  on  stirli 
traffic  Held,  that  the  N.  W.  Co.  must 
make  arrangements  to  prevent  the  introduc- 
tion of  changes  or  conditions  of  carriage  on 
the  S.  line  which  might  cause  traffic  which 
would  otherwise  go  to  N.  to  go  in  the  op- 
posite direction,  and  should  grant  running 
powers  to  the  G.  VV.  Co.  over  the  part  of  the 
S.  line  lying  in  the  most  direct  line  of  mm- 
munication  between  the  G.  W.  line  and  N. 
In  re  Sir/io7vy  li.  Co.,  2  Ky.  <S-  C.  T.  Cax. 
264. 

131.  Duty  of  workiiif;  company 
ctficioiitly  to  work  the  road.— Under  a 
working  agreement  by  which  the  working 
company  is  to  work  the  railway  <jf  the 
worked  company  as  a  part  of  their  systini 
of  railways,  and  "  convey  traffic  thereon  in 
a  proper  and  convenient  manner,  and  so  as 
fairly  to  develop  the  traffic  of  the  district,' 
the  trains  on  the  worked  line  must  lie 
timed  So  as  to  correspond  with  the  trams 
on  the  lines  of  the  working  company  rather 
than  with  the  trains  of  another  company 
with  which  they  might  be  made  to  connect ; 
the  working  company  must  as  fully  adver- 
tise a  competitive  route  over  the  line  of  liie 
worked  company  as  they  do  the  route  on 
their  own  line  which  competes  with  it  ;  the 
working  company  must  give  equal  facilities 
as  to  through  booking  via  the  worked  line 
as  via  their  own,  must  not  prefer  their  own 
route  in  the  matter  of  rates,  and  must  not 
fix  the  rates  on  the  worked  line  too  high  in 
proportion  to  the  rates  on  their  own  line. 
Clonmel  Traders  v.  U'aterford &^  L.  A'.  Co., 
4  />>.  <S-  C.  T.  Cas.  92. 

Upon  complaint  by  an  owning  company 


LEASES,  ETC.,   132. 


or. 


51 


that  the  working  company  did  not  use  and 
worii  the  railway  and  all  the  traffic  arising 
from  extensions  of  the  railway  ctHciently, 
and  so  as  fairly  to  develop,  protect,  and 
maintain  the  traffic  fairly  belonging  thereto, 
as  provided  by  the  working  agreement,  the 
commissioners  ordered  the  working  com- 
pany to  ran  an  additional  third  passenger 
train  each  way  daily  on  week  days  at  cer- 
tain times ;  such  trains  to  be  worked  in 
good  connection  for  through  traffic,  and  the 
lime  for  stoppages  at  stations  on  the  own- 
ing company's  railway  not  to  exceed  an  al- 
lowance at  the  rate  of  four  minutes  for  each 
station  stopped  at ;  and  further  ordered 
tlic  working  company  to  run  not  less  than 
two  passenger  trains  each  way  daily  on  week 
days  on  the  branch  line  of  the  owning  com- 
pany, timed  for  convenient  connection  and 
correspondence  at  the  junction  with  the 
main  line  with  trains  arriving  at  and  de- 
parting from  such  junction.  Dublin  <S-  M. 
R.  Co.  V.  Mitilivui  G.  VV.  R.  Co.,  3  Ry.  &» 
C.  T.  Cas.  379. 

The  H.  R.  Co.,  under  an  agreement, 
worked  the  line  of  the  E.  L.  R.  Co.,  extend- 
ing from  L.  '^t.  to  New  Cross  and  Old  K. 
Koad,  where  it  joined  their  lines.  The 
■iHreement  provided  that  the  B.  Co.  should 
so  work  the  E.  L.  R.  "  as  fairly  and  effi- 
<  iently  to  develop  the  traffic."  Upon  com- 
plaint by  the  E.  L.  Co.  that  the  B.  Co.'s  mode 
uf  working  the  railway  was  not  favorable  to 
the  through  passenger  traffic  between  L. 
lid  places  on  the  B.  Co.'s  lines,  because 
ti)  the  connections  at  the  junctions  were 
such  that  long  lay-overs  were  caused  and 
tilt  ^'h  journeys  could  not  be  accomplished 
in  any  reasonable  time;  (2)  the  trains  run- 
ning on  the  E.  L.  line  were  not  allowed  to 
use  the  up  and  down  junctions  with  the  B. 
Co.'s  line  at  New  Cross,  but  were  run  on  a 
short  branch  lim  nto  a  separate  low-level 
station  there ;  (3)  itirough  fares  to  L.  Bridge, 
a  terminus  of  the  B.  Co.,  and  L.  St.  were 
dilTerent,  and  considerably  lower  to  L. 
Bridge— //«"/</,  that,  in  the  absence  of  any 
provisions  in  tin*  .\greement  as  to  the  run- 
ning of  through  rains,  the  expression  "  the 
traffic  "  under  tlie  circumstances  must  be 
taken  to  apply  both  to  through  and  to  local 
traffic ;  that  the  B.  R.  Co.  might  withhold 
through  trains  if  through  traffic  could  be 
sufficiently  encouraged  by  having  a  good 
correspondence  between  trains ;  that  the 
fares  via  L.  Bridge  and  the  fares  via  L.  St. 
ought  to  be  at  the  same  mileage  rate,  as 


competitive  traffic  could  not  under  the  bur- 
den of  higher  fares  be  fairly  developed  in 
the  terms  of  the  agreement.  '  Kast  London 
A'.  Co.  v.  London,  It,  iS-  S,  C,  R.  Co.,  2  Ry. 
6-  C.  T.  Cas.  4(^. 

The  B.  R.  Co.,  under  an  agreement, 
worked  thelineof  the  E.  L.  R.  Co.,which  ex- 
tended from  Liverpool  Street  to  New  Cross, 
where  it  joined  their  lines.  The  agreenunt 
provifled  tliat  the  B.  Co.  should  so  work 
the  E.  L.  R.  "  as  fairly  and  efficiently  to 
develop  the  traffic."  //</</.  that  the  B.  Co. 
could  not  be  enjoined  under  the  agreement 
to  work  the  E.  L.  R.  as  if  it  were  a  trunk 
line  of  tlie  B.  Co.'s  system,  and  amalgamated 
with  it.  London,  />'.  iS.*  S.  C.  R.  Co.  v.  Kast 
London  R.  Co.,  3  Ry.  &*  C.  T.  Cas.  103. 

A  working  agreement  provided  that  "all 
questions  which  may  arise  between  the  two 
companies"  should  be  determined  by  arbi- 
tration. Upon  complaint,  in  1879,  by  the 
owning  company  that  the  working  company 
did  not  use  and  work  the  railway  so  as  fairly 
to  develop,  protect,  and  maintain  the  traffic, 
the  commissioners  ordered  the  working 
company  to  run  an  additional  third  passen- 
ger train  each  way  daily  on  week  days  at  cer- 
tain times.  In  1882  the  working  company  ap- 
plied to  the  commissioners  to  rescind  the 
order.  The  commissioners  refused,  but  gave 
leave  to  either  company  after  1883  to  apply 
to  have  the  matter  again  considered.  Un- 
der such  leave  the  working  company  applied 
in  1886,  and  the  commissioners,  upon  proof 
that  the  amount  of  the  traffic  was  not  in 
proportion  to  the  cost  at  which  it  was  car- 
ried, made  an  order  relieving  the  working 
company  from  the  obligation  to  continue 
the  train.  Midland  G.  W.  R.  Co.  v.  Dublin 
&*  M.  R.  Co.,  5  Ry.  <S-  C.  T.  Cas.  142. 

182.  Duty  of  working  company  to 
provide  wat;ons. — The  A.  R.  Co.  excln- 
sively  worked  and  managed  the  B.  R.  Co. 
as  lessees  of  the  line,  under  a  special  act, 
which  pro\ided  that  the  A.  Co.  "shall  pro- 
vide and  employ  all  such  locomotive  powers, 
engines,  carriages,  wagons,  and  other  rolling 
stock,  plant,  stores,  materials,  and  labor  as 
shall  be  proper  and  sufficient  for  the  work- 
ing and  user  of  the  demised  undertaking, 
and  the  reception,  accommodation,  convey- 
ance, and  delivery  by  the  A.  Co.  of  the 
traffic  thereof,  and  the  B.  Co.  shall  not  be 
bound  to  provide  any  such  thing."  Upon 
refusal  by  the  A.  Co.  to  prf)vide  wagons  for 
the  trader's  traffic  on  the  B.  R.  Co. — Afld, 
that  the  special  act  imposed  an  obligation 


'c 


/-?' 


LEASES,  ETC.,  133,  134. 


Pmli^, 


on  the  A.  Co.  to  provide  wagons  proper  and 
sufficient  for  the  wori^ing  and  user  of  the 
B.  R.,  and  that  any  one  interested  in  pro- 
curing that  accommodation  had  a  ground 
of  complaint  under  section  2  of  the  Railway 
and  Canal  Traffic  Act.  1854,  against  the  A. 
Co.  if  they  refused  10  provide  it.  Walkitt' 
son  V.  M'rexham,  M.  &•  C.  Q.  A'.  Co.,  3  A^. 
ilf^  C  T.  L'as.  164. 

133.  Diity'to  run  trniiiM  between 
4leMi(;uated  titutionH. — An  obligation  in 
an  agreement  to  place  trains  on  the  line  of 
another  company  between  A.  and  C.  (A. 
being  a  town  in  whicli  the  company  under- 
taking the  obligation  has  two  stations)  will 
be  fulfilled  if  the  trains  run  from  one  of 
these  stations,  although  it  may  not  be  the 
most  convenient,  or  the  one  from  which  the 
working  company  work  their  own  tratiic,  if 
that  station  was  the  only  one  existing  at  the 
dale  of  the  agreement.  Greenock  &•  IV.  B. 
K.  Co.  V.  Caledonian  Ji.  Co.,  5  Jiy.  6-  C.  T, 
c.Ji.  205. 

134.  Cost  of  construction  and  of 
innintenauce.  —  Where  a  railway  is 
worked  and  maintained  under  an  agree- 
ment which  provides  only  for  repairs  and 
maintenance,  and  not  for  the  first  cost  of 
new  works,  such  works  ought,  in  general,  to 
be  made  the  subject  of  special  arrange- 
ments from  time  to  time  between  the  com- 
panies; and  where  no  such  arrangement 
has  been  come  to,  the  company  executing 
the  same  must  bear  the  cost  itself,  at  any 
rate  where  their  construction  has  not  been 
ordered  by  superior  authority.  Dublin  &• 
M.  A'.  Co.  v.  Atiitlanii  G.  W.  R.  Co.,  3  Ry. 
^  C.  T.  Cas.  379. 

It  is  the  duty  of  an  owning  company  to 
supply  a  workingcompany  with  a  line  capa- 
ble of  being  efficiently  worked  without 
danger  to  the  public,  and  therefore,  where 
new  works  are  necessary  for  that  purpose, 
such  works  ought  to  be  executed  by  the 
owning  company  at  its  own  expense;  and 
if  such  company,  after  due  notice,  was  to 
refuse  or  neglect  to  execute  any  such  neces- 
sary works,  the  working  company  would  be 
entitled  to  cause  them  to  be  executed,  and 
to  charge  the  cost  to  the  owning  company. 
Jhihlin  &"  M.  A.  Co.  v.  Midland  G.  W,  R. 
Co.,  3  A'l'.  &*  C.  T.  Cas.  379. 

An  agreement  between  two  companies, 
confirmed  by  act  of  parliament,  provided 
that  the  one  company  should  forthwith 
construct  and  complete  their  line  to  the 
satisfaction  of  the  other  conipany,  and  the 


same  when  so  completed  shall  be  "  main- 
tained and  worked  "  by  the  atter  com- 
pany in  perpetuity  on  certain  tetms.  //<•/</, 
that,  after  completion,  the  latter  company 
was  entitled  to  exclusive  possession  of  the 
line  and  works,  and  that  the  former  com- 
pany had  no  right  to  enter  on  the  property 
to  make  improvements  or  repairs.  "  Main- 
tenance "  includes  useful  and  reasonable 
improvements  so  long  as  there  is  no  altera- 
tion of  purpose.  Sevenoaks,  AI.  &-  T.  R.  Co. 
v.  London,  C.  &*  D.  R.  Co.  1 1  Ch.  D.  625.  4S 
L.  J.  Ch.  513.  40  L.  T.  545.  27  IV.  R.  672,  3 
Ry.  &•  C.  T.  Cas.  xxx. 

An  agreement  that  the  working  company, 
shall  maintain  the  railway  of  the  worked 
company  in  substantial  repair  and  good 
working  order  and  condition,  the  worked 
company  being  bound  to  provide  at  a  certain 
station  proper  terminal  accommodation  to 
enable  the  working  company  to  carry  on  and 
convey  the  traffic,  and  being  bound  to  pay 
to  the  working  company  such  toll  rent  or 
other  consideration  for  the  use  of  a  third 
company's  line  and  station  as  the  working 
company  might  have  to  pay  to  such  third 
company — Aeld,  that  the  word  "maintain  " 
was  limited  to  the  railway  of  the  worked 
company,  and  did  not  extend  to  the  station 
or  any  portion  of  the  railway  of  the  third 
company.  Clonm.'  Traders  v.  Walerford 
&•  L.  R.  Co.,  4  /;.•.   i-  C.  T.  Cas.  92. 

There  being  no  provision  in  the  agreement 
as  to  station  services,  signaling,  disinfect- 
ing cattle  trucks,  and  the  like,  and  the 
working  company  receiving  mileage  and 
terminals  for  working  the  traffic,  the  work- 
ing company  was  made  to  bear  these  ex- 
penses. Clonmel  Tr>tdfrs  v.  Walerford  &• 
L.  R.  Co.,  4  Ry.  Sr*  C.  T.  Cas.  92. 

The  S.  W.  R.  Co.  were  the  lessees  of  the 
S.  R.  Co.  under  a  lease  whereby  it  was  pro- 
vided that  the  lessors  should  execute  all  such 
additional  works,  if  any,  in  and  in  connection 
with  the  thereby  demised  railways,  and  for 
landowners  and  others,  as  might  from  time 
to  time  be  required  in  pursuance  of  the 
acts  'rom  time  to  time  in  force  with  respect 
to  the  management,  working,  use,  and  main- 
tenance of  the  railways,  and  the  works 
thereof,  and  the  traffic  thereon ;  neverthe- 
less that  the  lessees  should  maintain  and 
repair  such  works  when  executed.  Held, 
that  this  provision  extended  to  works  neces- 
sary to  afford  due  facilities  for  traffic  under 
the  Railway  and  Canal  Traffic  Act,  1854,  in- 
cluding therein  work  which  it  is  incumbent 


mm 


LEASES,  ETC.,  135. 


'»t}>$m  i  I 


on  a  railway  company  to  provide,  if  it 
would  avoit  contingencies  for  wiiich  it 
would  incur  a  liability,  such  as  new  signals 
provided  for  putting  tlie  blocii  system  in 
operation.  London  &*  S.  W.  K.  Co.  v. 
Staines,  IF.  &*  IV.  A\  Co.,  3  A>.  <S-  C.  T. 
Cas.  48. 

By  a  worlcing  agreement  made  i';  1864 
between  the  P.  Co.  and  the  C.  Co.  tiie  C. 
Co.  worked  and  maintained  the  P.  Co.'s 
line,  retaining  a  percentage  of  the  gross 
traffic  receipts.  A  special  act  subsequently 
passed  gave  the  G.  Co.  a  joint  use  with  the 
P.  Co.  of  a  section  of  the  latter  company's 
line,  on  terms  of  paying  interest  on  half  the 
cost  of  constriction  of  the  section,  and  of 
payinj;  in  proportion  to  use  towards  the  cost 
of  maintenance;  the  section  to  be  maintained 
and  managed  by  joint  committee  appointed 
by  tlie  P.  Co.  and  the  G.  Co ;  the  interest 
aforesaid  to  be  treated  as  part  of  gross 
traffic  receipts  of  the  P.  Co.  for  tiie  pur- 
pose of  the  working  agreement  of  1864. 
//e/tf,  that  the  expense  of  maintaining  llie 
section,  less  any  portion  for  which  the  C. 
Co.  were  responsible,  was  payable  by  ilie 
G.  Co.  Porlfiatrick  R.  Co.  v.  Caledonian  1\. 
Co.,iRy.  Sr'C.   T.  Cas.  189. 

The  defendant  being  unable  to  furnish 
their  railway,  and  the  plaintiffs  desiring  to 
have  it  in  operation  as  a  feeder  to  their 
line,  a  correspondence  was  had  between 
the  two  companies,  and  resolutions  passed 
by  the  plaintifTs,  and  communicated  to  de- 
fendants, authorizing  an  arrangement  by 
which  the  plaintifTs  should  work  the  road 
for  a  certain  period  and  share  the  profits 
with  defendants.  No  formal  agreement 
was  made,  and  thf  terms  were  not  defi- 
nitely settled,  but  the  plaintitis  went  on  and 
comi)leted  the  defendants'  line,  and  it  ran 
for  some  time  at  a  loss.  They  then  sued 
defendants  for  the  work  done,  and  for  the 
money  expended  above  the  receipts,  //e/d, 
that  they  could  not  recover,  for  as  to  the 
lirst  demand,  the  constructing  defendants' 
road  was  a  matter  within  the  scope  of  their 
charter ;  and,  as  to  the  second,  the  agree- 
ment relied  upon,  being  special  in  its  terms, 
was  invalid  for  want  of  the  corporate  seal. 
Creat  U'eslern  A'.  Co.  v.  /'res/on  «**  £.  A'. 
Co..  17  If.  C.  Q.  H.  am. 

135.  Dividing  rncciptH  nceordiiig 
tu  iiiileaice— Teriiiiiiul  clmrtres.  —  A 
clause  in  a  working  agreement  between  two 
companies  provided  for  the  equal  division 
between  the  companies  of  the  gross  receipts 


of  tralFic  on  the  owning  company's  railway, 
deducting  one  moiety  of  station  to  station 
terminals,  and  als(^  dedi:cting  mileage  pro- 
portion and  terminals  due  to  any  other 
company  in  respect  of  such  traffic.  Held, 
that  the  receipts  subject  to  such  division 
must  comprise  one  moiety  of  the  two  ter- 
minals which  were  included  in  gross  receipts, 
and  not  merely  one  moiety  of  the  tcrniiii;il 
at  the  owning  company's  end  of  the  jour- 
ney, and  that  "  any  other  company  "  r'>feri  ed 
to  any  third  company  interested  i:  particu- 
lar traffic,  and  not  to  the  working  company. 
Har borne  v.  London  &*  N.  IV,  A'.  Co.,  2  Ay. 
6-  C.  T.  Cas.  326. 

By  a  working  agreement  between  the  S. 
D.  R.  Co.  and  the  B.  K.  Co.  it  was  provided 
that  there  should  be  a  division  of  the  re- 
ceipts from  the  B.  road,  which  was  to  be 
worked  and  managed  by  the  S.  D.  Co.,  wlio 
were  to  receive  all  tolls,  fares,  rates,  and 
charges  arising  from  the  B.  Co.,  including 
"  one  half  of  all  terminal  charges,  and  a 
mileage  proportion  in  respect  of  the  B.  Co. 
of  all  through  fares,  rates,  and  charges." 
Ne/d,  that  the  S.  D.  Co.  were  bound  to 
bring  into  the  receipts  and  to  account 
to  tlie  B.  Co.  for  one  half  of  all  ter- 
minals included  in  fares,  rates,  and  charges 
earned  on  the  B.  Ry.  and  the  S.  D.  Ry.,  and 
also  on  the  B.  road  and  any  other  rail- 
way or  railways.  Buckfastleigh,  T.  6-  S,  D. 
R.  Co.  V.  South  Devon  R.  Co.,  i  Ry.  «S-  C.  T. 
Cas.  321. 

It  appeared  that  the  S.  D.  Co.  in  some 
cases  carted  the  goods  to  and  from  the  sta- 
tions, and  the  cartage  rate  was  included  in 
the  goods  rate.  Ne/d,  that  they  weic  justi- 
fied in  deducting  from  the  receipts  to  be 
divided  between  them  and  the  B.  Co.  the 
average  cost  to  the  S.  D.  Co.  of  performing 
the  cartage.  liuckfastleigh,  T.&^  S.D.  R. 
Co.  v.  South  Der'on  R.  Co.,  i  Ry.  <S«»  C.  T. 
Cas.  321. 

It  also  appeared  that  the  S.  D.  Co.,  in  con- 
veying goods  from  the  B.  road  to  a  line  lead- 
ing from  their  own  railway,  were  compelled, 
through  not  having  any  siding  or  other  ac- 
commodation at  the  junction,  to  convey 
goods  three  miles  beyond  the  junction 
to  a  station  on  their  line,  and  then  to  send 
them  back  to  the  junction  by  another 
train,  and  they  claimed  in  such  cases  to 
credit  themselves  with  the  mileage  one 
way — namely,  the  three  miles — in  estimating 
the  mileage  proportion  herween  the  twf> 
com  I. .lilies.     Held,  tli;\t   f' worf  entit':i 


:»,', 
^^, 


'<m 


:  I 


/I 


J54 


LEASES,  ETC.,  136,  137. 


}  :  -,4' 


'I': 


H 

■  *   » 

4  - 


n 


to  do  so.    Buckfastleigh,  T.  &•  S.  D.  K.  Co. 
V.  South   Devon  J\\  Co.,  i  liy.  &*  C.   T.  Cas. 

The  B.  line  was  worked  by  the  S.  D.  Co. 
as  agents  for  the  IJ.  Co.;  all  traffic  on  the  B. 
line  being  charged  for  at  local  rates,  which 
were  fixed  by  the  B.  Co.  The  S.  D.  Co.  re- 
fused to  credit  the  B.  Co.  with  any  allow- 
ance for  terminal  in  respect  of  traffic  arising 
at  B.  and  passing  on  to  their  own  lines  or 
those  of  other  companies.  HeU,  that  the 
B.  Co.  were  entitled  to  such  allowance. 
Torbay  &*  />'.  R.  Co.  v.  Sotillt  Devon  K.  Co., 
2  Ay.  &*  C.  T.  Cas.  391. 

Certain  companies  iiad  agreed  to  allow 
the  S.  D.  Co.  a  special  terminal  of  8s.  per 
ton  for  fish.  Held,  that  the  B.  Co.  were 
only  entitled  to  an  allowance  by  the  S.  D. 
Co.  of  the  ordinary  clearing-house  termi- 
nal of  IS.  8d.  for  fish.  Torbay  <S««  B.  K.  Co. 
V.  South  Devon  K.  Co.,  2  Ky.  &*  C.  T.  Cas. 
391. 

The  A.  R.  Co.  worked  under  an  agree- 
ment the  B.  line  (a  cross  line  forming  a 
junction  at  either  end  with  the  A.  com- 
pany's railways),  which  was  leased  to  them. 
The  tliird  article  of  the  agreement  provided 
thai  the  working  company  should  place  to 
the  account  of  the  B.  line  a  due  mileage 
proportion  of  the  gross  receipts  derived 
from  through  traffic.  The  A.  company 
carried  through-goods  traffic  over  the  B. 
line  past  the  junction  to  their  nearest  sta- 
tions on  their  own  lines  proper,  for  the  re- 
marshaling  of  such  traffic,  and  back  again 
to  the  junctions,  and  thence  to  its  proper 
destination,  and  claimed  to  include  in  their 
mileage,  for  the  purpose  of  division  of  re- 
ceipts, the  distance  between  the  junctions 
and  the  stations  where  the  traffic  was  re- 
marshaled,  both  ways.  There  was  no  sta- 
tion suitable  for  the  interchange  of  through 
traffic  at  either  junction.  There  being,  in 
the  opinion  of  the  commissioners,  nothing 
in  the  agreement  obliging  the  A.  company 
to  provide  such  station,  and  the  traffic  in 
question  not  being  so  considerable  as  in  the 
commissioners'  opinion  to  make  it  reason- 
able that  it  should  pass  from  one  line  to 
the  other  without  being  taken  into  a  station 
—held,  that  the  claim  ought  to  be  allowed. 
Salisbury  &*  D.  J.  R.  Co.  v.  London  &*  S, 
W.  R.  Co.,  3Ry.  &-  C.  T,  Cas.  314. 

The  B.  company  contended  that  the  A. 
company's  mileage  proportion  of  receipts 
for  through  traffic  should  be  reckoned  ac- 
cording to  the  mileage  of  the  shortest  route 


over  the  A.  company's  lines  which  could  be 
taken.  The  commissioners  being  of  opin- 
ion that  there  was  nothing  in  the  agreement 
obliging  the  A.  company  to  take  any  par- 
ticular route — held:  (i)  with  regard  to  joint 
traffic,  that  whether  the  A.  company  should 
be  allowed  to  reckon  mileage  according  to 
the  distance  of  the  route  taken,  or  accord- 
ing to  the  distance  of  the  shortest  route, 
depended  upon  what  was  reasonable  under 
the  circumstances ;  (2)  with  regard  to 
through  traffic,  the  receipts  for  which 
passed  through  the  clearing  house,  that  the 
B.  company  were  entitled  to  receive  the  same 
proportion  as  they  would  have  received  if 
they  had  been  an  independent  company. 
Salisbury  Sf  D.  J.  R.  Co.  v.  London  &*  S. 
IV.  R.  Co.,  3  Ry.  &-  C.  T.  Cas.  314. 

13G.  Wlicii  imrticM  iiia.v  arbitrate. 
-  A  working  agreement  provided  that  the 
working  company  should,  under  the  direc- 
tion of  a  joint  committee,  forever  maintain, 
repair,  manage,  work,  and  use  the  railway, 
and  should  manage  and  work  the  traffic 
thereon  so  as  fairly  to  accommodate  and  de- 
velop the  traffic  of  the  district,  and  to  pro- 
mote in  all  reasonable  respects  the  success 
of  the  owning  company's  undertaking.  The 
agreement  further  provided  that  any  difler- 
ence  which  might  arise  between  the  two 
companies  should  be  referred  to  and  deter- 
mined by  arbitration  under  the  provisions 
of  the  Railway  Companies  Arbitration  Act, 
1859.  Held,  that  no  case  for  arbitration 
arose  until  the  direction  of  the  joint  com- 
mittee had  been  had  or  refused,  and  one  or 
other  of  the  companies  being  dissatisfied 
with  the  action  or  non-action  of  the  joint 
committee,  had  taken  the  course  prescribed 
by  the  agreement.  Limerick  &*  A'.  R.  Co. 
V.  Water/ord  &-  L.  R.  Co.,  5  Ry.  6-  C.  T. 
Cas.  87. 

137.  Power  and  JiiriHdiction  of 
coiiiiuissioiiers.— Upon  an  application 
to  the  railway  commissioners,  under  section 
8  of  the  Regulation  of  Railways  Act,  1873,  to 
settle  the  terms  o(  user  under  section  17  of 
the  Central  Wales  Act,  1873,  objection  was 
made  to  the  heariiig  of  the  application  on 
the  ground  that  the  user  in  question  was  a 
user  under  other  powers  than  those  given  by 
the  Central  Wales  Act,  1873.  Held,  by  the 
commissioners,  that  part  of  the  user  was 
under  that  act,  and  that  they  had  jurisdic- 
tion to  entertain  the  application.  Great 
Western  R.  Co.  v.  Central  Wales  &>  C.  J.  R. 
Co.,  4  Ry.  <S-  C.  T.  Cas.  358. 


LEASES,  ETC.,  1»8-141. 


255 


An  application  was  made  by  the  owning 
company  to  the  railway  commissioners 
under  section  8  of  the  Regulation  of  Railways 
Act,  1873,  alleging  that  the  working  com- 
pany had  not,  within  the  meaning  of  the 
agreement,  so  worked  and  used  the  railway 
as  properly  to  develop  and  accommodate 
the  through  traffic  mentioned  in  the  agree- 
ment. The  commissioners  entertained  the 
application,  and  determined  the  same  in 
favor  of  the  working  company.  Eastern  «S- 
JA  A'.  Co.  V.  Midland  R.  Co.,  4  Ry.  St*  C.  T. 
Cas.  323. 

The  G.  Ry.  Act,  1862,  §  59,  after  reciting 
that  an  agreement  made  in  1862,  and  sched- 
ules to  the  act,  had  been  entered  into  be- 
tween the  provisional  directors  of  the  G. 
Ky.  Co.  and  the  C.  Ry.  Co.  in  relation  to 
the  construction  and  maintenance  uf  the 
railway  and  works  by  the  act  authorized, 
and  the  working  and  management  of  the 
traffic  thereon,  enacts  that "  the  said  agree- 
ment is  hereby  sanctioned  and  confirmed, 
and  shall  be  as  valid  and  obligatory  upon 
the  companies  as  if  they  had  been  author- 
ized by  this  act  to  enter  into  the  said  agree- 
ment, and  as  if  the  same  had  been  duly  ex- 
ecuted by  them  after  the  passage  of  this 
act";  and  section  61  enacts  that  "it  shall 
be  lawful  for  the  board  of  trade,  if  they  think 
fit,  on  the  expiration  of  ten  years  from  the 
date  of  the  agreement,  and  on  the  expiration 
of  every  period  of  ten  years  from  the  time 
when  any  revision  thereof  shall  be  made  by 
them  in  manner  herein  provided,  to  cause 
the  said  agreement  to  be  revised."  These 
powers  of  the  board  of  trade  were,  by  the 
Rejjuiation  of  Railways  Act,  1873,  Ji  10, 
litiven  to  the  railway  commissioners.  Held, 
by  the  commissioners,  that  they  had  no 
jurisdiction  t<j  revise  the  agreement  which 
had  l)ct'n  approved  by  parliament,  and 
which  tlie  board  of  trade  never  had  power 
to  approve.  Greenock  <S-  W.  li.  R.  Co.  v. 
Caledonian  R.  Co.,2  Ry.  &*  C.  T.  Cas.  132. 

.S'liiifile,  that  the  power  given  to  the  rail- 
way commissioners  under  section  10  of  the 
I<e)>;ulation  of  Railways  Act,  1873,  to  approve 
of  working  agreements,  covers  and  includes 
the  power  to  revise  such  agreements. 
Greenock  &•  ]V.  B.  R.  Co.  v.  Caledonian  R. 
Co.,2  Ry.  ^c.  T.  Cas.  132. 

1<'<8.  Former  powers  of  boaril  of 
trade  traiigferred  to  the  conimlH- 
Hioners.— The  power  of  the  board  of 
trade  under  a  clause  in  a  working  agree- 
ment between  two  railway  companies  em- 


powering the  board  of  trade  once  in  every 
ten  years  "  to  cause  this  agreement  to  be  re- 
vised, but  in  the  interest  of  the  public  only," 
was  by  the  act  of  1873  transferred  to  the 
railway  commissioners.  Huddersfield  Cor- 
poration V.  Great  Northern  R.  Co.,  50  L.  J. 
Q.  li.  D.  587,  3  Ry.  &•  C.  T.  Cas.  564. 

i;iU.  What  the  teriiiH  "local  and 
tlirout^li  tratlle"  iiicliide.— Words 
"  through  traffic"  in  an  agreement  by  which 
one  railway  company  undertakes  to  "main- 
tain, manage,  man,  stock,  work,  and  use  the 
railway  "  of  another  company  so  as  "  prop- 
erly to  develop  and  accommodate  not 
merely  the  through  traffic  but  also  the  lo- 
cal traffic  of  the  district  to  be  served  by  tlic 
raiiw?iy,"  were  held  by  the  commissioners 
to  mean  such  traffic  as  that  for  whicli  the 
said  railway  provides  the  shortest  and  most 
convenient  route,  and  not  that  which  may 
be  more  conveniently  or  economically  car- 
ried by  any  other  route.  Eastern  &*  Al.  R. 
Co.  v.  Midland  R.  Co.,  5  Ry.  &*  C.  T.  Cas. 

235- 

140.  How  coHt  of  working  in  cal- 
culated.— In  calculating  the  cost  of  work- 
ing a  section  of  a  railway  as  an  integral 
part  of  the  whole  system,  the  proportion  of 
locomotive  expenses  and  cost  of  carriage 
and  wagon  repairs  to  be  borne  by  the  sec- 
tion should  be  arrived  at  by  taking  the  mean 
proportion  between  the  proportions  of  the 
train  mileage  on  the  section  to  the  train 
mileage  on  the  system,  and  the  traffic  re- 
ceipts on  the  section  to  the  traffic  receipts 
on  the  system  respectively.  Serenoaks,  M. 
6-  T.  R.  Co.  v.  London,  C.  <S-  D.  R.  Co..  3 
Ry.  <5-  C.  T.  Cas.  63. 

141.  Workintr  agreement  of  road 
iiiortKaffod  to  Hociirn  boiulH.— Tiie  B. 
&  L.  H.  R.  Co.,  being  liable  upon  certain 
bonds  secured  hy  mortgage,  entered  into 
agreement  with  the  G.  T.  R.  Co.,  confirmed 
by  29-30  Vict.  c.  92,  by  which  the  latter 
company  was  to  undertake  the  working  of 
their  railway,  the  net  receipts  of  the  two 
companies  to  be  divided  between  them  in 
specified  proportions.  One  clause  of  this 
agreement  provided  that  as  between  the  R. 
A  L.  H.  Co.  and  the  holders  of  these  secur- 
ities the  interest  on  such  securities  should 
be  a  first  charge  on  the  proportion  of  net  re- 
ceipts payable  to  that  company,  and  so  long 
as  such  proportion  was  duly  paid  to  the 
company  none  of  the  holders  should  exer- 
cise any  of  their  powers  or  rights  against 
the  property  or  effects  of  the  company,  ex- 


'"    I 


i'  -T  ^ 


256 


LEASES,  ETC.,  142.— LEGISLATURE. 


■i 


i 


^ 


cept  their  proportion  of  net  receipts,  but 
those   powers   and   rights   should   be  sus- 
pended.    By  another  clause  the  agreement 
was  declared  to  be  subject  and  without  prej- 
udice tu  the  securities,  rights,  and  interest 
of  the  bond  creditors  of  the  company.  Held, 
assuming  that  the  right  to  sue  on  the  bonds 
was  included  in  the  powers  and  rights  men- 
tioned, that  the  effect  of  the  agreement  was 
not  to  suspend  such  right  so  as  to  be  plead- 
able in  bar  to  an  action,  though  it  might 
give  a  right  of  action  for  the  damages  sus- 
tained by  suing  in  breach  of  it,  or  atford 
ground  in  equity  to  restrain  the  plaintitfs 
from   enforcing  the  judgment.    The  effect 
of  19  Vict.  c.   21  was  to  make  defendants 
liable  upon  the  bonds  given  by  the  ButTalo, 
B.  &  G.  R,  Co.,  as  if  originally  given  by  de- 
fendants.    Corporation    of   Brantford    v. 
Buffalo  <S-  L.  H.  R.  Co..  29  U.  C.  (J.  B.  607. 
142.    Under  Uegiilatiuii  of  Ituil- 
way8  Act,  1873,  §  1 1.— By  a  statutory 
agreement  between  the  A.  R.  Co.  and  the 
B.  K.  Co.,  whose  railways  formed  a  continu- 
ous line  of  railway,  it  was  provided  that  the 
B.  Co.  should  work  the  line  of  the  A.  Co. 
in   perpetuity,  and    provide  the  necessary 
rolling  stock ;  that  the  B.  Co.  should  ap- 
point, pay,  and  have  the  exclusive  control 
over  the  staff  required  for  working  the  A. 
company's  line,  and  that  the  A.  Co.  should 
appoint,  pay,  and  have  exclusive  control 
over  the  officials  required  to  manage  the 
directorial   and    financial    departments   of 
their  undertaking,  and  the  men  required  for 
the  maintenance  of  the  permanent  way  of 
their  line;  that  the  B.  Co.  should  receive 
for  worl.ing  the  traffic  fifty  per  cent,  of  the 
gross  receipts,  and  that  out  of  the  remain- 
ing fifty  per  cent,  the  A.  Co.  should  pay  (1) 
the  cost  of  maintaining  the  permanent  way, 
public  And  parochial  burdens,  and  govern- 
ment duties ;  (2)  the  "  general  charges  "  for 
the  directorial  and  financial  business  of  the 
company;  and  (3)  out  of  the  balance  should 
pay  one  quarter  to  the  B.  Co.  in  respect  of 
the  contribution  of  j£35,ooo  to  the  capital 
holders  in  the  A.  Co.  and  lastly,  that  the 
traffic  should  be  managed  and  the  rates  and 
fares  fixed  by  a  joint  committee,  the  B.  Co. 
being,    however,   the    sole   judges  of  the 
proper  times  for  starting  the  trains.    Hfld, 
by  the  court  of  session  (affirming  the  judg- 
ment of  the  railwa    commissioners),  that 
the  A.  Co.  was,  wit  <  ,1  the  meaning  of  the 
Regulation  of  Railways  Act,  1873,  a  forward- 
ing company,  and  entitled  under  section  1 1 


to  require  that  through  rates  should  be 
fixed  for  traffic  passing  to  and  from  stations 
on  its  line  from  and  to  stations  on  the  13. 
Co.'s  own  line.  Greenock  &^  IV.  B.  B.  Co. 
V.  Caledonian  B.  Co.,  3  By.  &•  C.  T.  Cas.  145. 
The  court  of  session  has  jurisdiction  10 
entertain  the  question  whether  the  railway 
commissioners  in  making  an  order  fixiii}; 
such  through  rates  on  the  application  of  the 

A.  Co.  have,  in  respect  that  the  A.  Co.  is 
not  a  railway  company  forwarding  trallic 
within  the  meaning  of  section  1 1  of  tlic  Reg- 
ulation of  Railways  Act,  1873,  exceeded  their 
powers,  notwithstanding  tlic  limitation  of 
review  contained  in  section  26  of  that  act. 
Greenock   &*  W.  B.    A'.  Co.   v.  Caledoiiinn 

B.  Co..  3  AV.  «S-  C.  T.  Cits.  145. 

An  agreement  between  a  steamboat  com- 
pany and  a  railway  company  that  the  steam 
vessels  belonging  to  the  former  shall  ])ly 
between  two  ports  "  for  one  year  and  there- 
after until  written  notice  to  terminate  the 
agreement  six  months  from  the  date  of  such 
notice,"  "  daily,  or  at  least  upon  alternate 
days  of  each  week,  the  hours  of  departure 
of  the  boats  to  be  determined  by  steamboat 
company,  regard  being  had,  however,  to  the 
convenience  of  the  railway  company  and  to 
the  times  of  the  arrival  and  departure  uf 
their  trains,"  and  containing  also  a  clause 
that  any  dispute  or  difference  as  to  the  pro- 
visions of  the  agreement  should  be  referred 
to  the  decision  of  an  arbitrator  to  be 
appointed  by  the  board  of  trade,  whose  de- 
cision was  to  be  binding,  is  an  arrangement 
for  using,  maintaining,  or  working  steam 
vessels  within  the  meaning  of  section  1 1  of 
the  Regulation  of  Railways  Act,  1873.  Bel- 
fas/  C.  B.  Co.  V.  Great  Northern  K.  Co.  ,4 
By.  <S-  C.  T.  Cas.  yjg. 


LEGISLATURE. 

Cannot  enforce  forfeiture  of  franchise,  see 

ClIAKTERS,    H2. 

Control  of,  over  land  granted  to  atate,  see 
Land  Grants,  lit,  14. 

Delegation  of  power  of,  sec  S  rA  i  ures,  7. 

Discretion  of,  as  to  exercise  of  power  of  emi- 
nent domain,  see  Eminknt  Domain,  2. 

Granta  by,  of  right  to  lay  tracks  in  streets, 
see  Stkekt  Railways,  7-15;  Stbkets 
AND  Highways,  ilO-OO. 

Power  of,  aa  regarda  aid  to  railways,  sec 
Municipal  and  Local  Aid,  5-2!<. 

—  retpecta   land   granta,   see   Land 

Grants,  2. 


LETTERS-LIBFL  AND  SLANDER,  1. 


Power  of,  as  to  selection  of  tribunal  to  as- 
sess land  damages,  see  Eminent  Domain, 

448. 
to  authorize  entry  before  payment  of 

land    damages,    see    Eminknc    Domain, 

415. 
delegate  right  to  condemn  lands,  see 

Eminfm'  Domain,  84. 

enpxt  fence  laws,  see  Fencks,  l-O. 

grant  exemptions  from  taxation,  see 

Taxaiidn,  1;I7,  138. 
ratify  invalid  issue  of  bonds,  see  Mir- 

Nicii'Ai.  AND  Local  Am,  .{37. 
regulate  elections  in  aid  of  railways, 

sec  MirNiciPAL  and  Local  Aid,  14W. 
take  away  or  restrict  the  right  of 

appeai,  see  Emini.nt  Domain,  80t>. 
Regulation  of  charges  by,  see  Charges,  4- 

lU. 


LETTERS. 

Admissibility  and  effect  of,  in  evidence,  see 
Death  by  Wrongful  Act,  244 ;  Evi- 
dknce,  230. 

Of  president,  admitting  liability,  admissibil- 
ity of,  see  Fires,  20». 

Right  of  express  company  to  carry,  see  Ex- 
i-KKss  Companies,  5. 

Testamentary,  or  of  administration,  see  Ex- 
Kci  tors  and  Administkators,  1-JI. 

Written  by  attorneys,  admissibility  of,  as 
admissions,  see  Evidence,  107* 


LEVY. 


Of  attachments,    see    Attachment,     etc., 
47-40. 

—  executions,  sec  Execution,  14-10. 

—  taxes,  see  Taxation,  245-280. 


LIBEL. 


In  admiralty,   for  death  of  passenger,  see 
Admiralty,  3. 


LIBEL  AND  SLANDER. 

1.  Wliiif  piiblicatioiiitarc  libelous.* 

— Lannua^e  chargini;  a  railroad   company 
with  incapacity  or  neglect  in  the  conduct  of 

*  Liability  of  corporations  for  torts,  such  as 
assault  and  battery,  malicious  prosecution,  libel, 
slander,  etc.,  see  notes,  20  Am.  &  End.  R.  Cas. 
637 :  3«  f'i.  3f>3  ;  34  Am.  Rep.  493. 

Liability  of  company  for  unauthorized  publi- 
cations by  newspapers  as  to  discharge  of  em- 
ployes, see  48  Am.  &  Eng.  R.  Cas.  115,  abstr. 

Libel   and    slander    upon    corporations,   see 
note,  52  Am.  &  Eno.  R.  Cas.  156. 
6  D.  R.  D.— V7 


its  business,  in  that  it  maintains  a  road 
more  than  half  of  the  ties  of  which  .tie 
rotten  and  on  which  it  is  dangerous  to  run 
trains  fast,  is  actionalile  witliout  proof  of 
special  damage;  a  demurrer  to  the  com- 
plaint setting  forth  such  facts  as  a  cause  of 
action  will  be  dismissed  as  frivolous.  Ohio 
&•  M.  K.  Co.  V.  Press  Puh.  Co..  52  Am.  H'- 
Eng.  h'.  Cas.  155.  48  Fed.  Kfp.  206. 

In  an  action  based  upon  a  libelous  letter 
from  its  superintendent  in  reply  to  a  com- 
munication from  attorneys,  propounding  a 
claim  for  damages  in  favor  of  plaintiff,  the 
defendant  will  be  liable  upon  proof  of  mal- 
ice, or  the  absence  of  honest  belief  in  the 
truth  of  the  statements  contained  in  the 
letter.  Alabama  &*  V.  K.  Co.  v.  Brooks,  69 
Miss.  1 68,  13  So.  Rep.  S47. 

In  such  case  the  company  is  not  liable  if 
its  servant,  in  making  the  reply,  keeps  him- 
self within  the  privilege  of  the  occasion; 
otiierwise,  if  he  takes  advantage  of  the  op- 
portunity maliciously  to  libel  plaintiff  or  to 
write  concerning  him  libelous  matter  which 
he  does  not  believe  to  be  true.  Alabama 
&*  V.  K.  Co.  v.  Brooks,  69  Miss.  168,  13  So. 
Rep.  847. 

A  railroad  company  supplied  certain  of 
its  agents  with  a  tabulated  list  of  employes 
who  had  been  discharged,  stating  in  paral- 
lel columns  the  name  and  occupation  of  the 
employes,  and  under  the  heading  "  Why 
discharged  "  the  reason.  Held,  where  the 
reason  given  was  "  stealing,"  the  statement 
was  libelous,  and  its  issue  to  agents  was  a 
publication.     Bacon  v.  Michigan  C.  R.  Co., 

20  Am.  (S-  Eng.  R.  Cas.  633,  55  Mich.  224, 

21  N.  IV.  Rep.  324,  54  Am.  Rep.  372. 

The  general  manager  of  defendants'  rail- 
way, without  special  instructions  of  the  di- 
rectors, -dismissed  plaintiff  for  alleged  dis- 
honesty; and  by  liis  directions  placards 
describing  the  olTense,  and  stating  plaintiff's 
dismissal,  were  posted  up  in  the  company's 
private  offices,  in  some  of  which  they  were 
seen  by  strangers,  and  in  circular  books  of 
the  conductors,  for  the  information  and 
warning  of  the  company's  employes,  200a 
in  number.  Held,  that  defendants  were 
liable  for  the  publication  as  being  an  act 
done  by  their  general  manager  in  their  in- 
terest and  within  the  general  scope  of  his 
duty.  The  communication  to  the  employes 
was  privileged,  made  by  a  person  having  a 
duty  or  interest  to  persons  having  a  corre- 
sponding duty  or  interest.  Tench  v.  Great 
Western  R.  Co..  33  U.  C.  Q.  B.  8. 


4 


'■  i\ 


258 


LIBEL  AND   SLANDER,  ./-5. 


■1. 
I 'I 

Ml 


3.  and  what  arc  not.—  A  state- 
ment sent  out  by  a  railroad  company,  em- 
ploying some  24,000  persons,  to  its  employ- 
ing agents,  showing  the  names  of  persons 
who  had  been  discharged,  and  the  cause  of 
their  discharge,  for  the  purpose  of  prevent- 
ing tlieir  re-employnient,  is  not  actionable, 
in  the  absence  of  express  malice,  though 
false.  Missouri  Pac.  A\  Co.  v.  Richmond,  38 
Am.  &*.  Kng.  A.  Cas.  24'.  73  y*'-*'-  568,  4  ■^• 
A'.  A.  280,  II  a.  ir.  Kip.  555,  29  Cent.  L. 
y.69. 

The  mere  pelting  of  a  notice  by  a  rail- 
road company,  forbidding  its  employes  to 
trade  with  a  certain  person,  does  not  con- 
stitute libel  or  slander,  though  it  may  be 
malicious  and  result  in  injury  to  such  per- 
son. Payne  v.  Western  &•  A.  A'.  Co.,  18 
Am.  &*  ling.  R.  Cas.  119,  13  Lea  {Tenn.) 
507.  49  Am.  Rep.  666. 

It  is  not  unlawful  for  a  railroad  company 
to  discharge,  nor  to  publish  notice  that  it 
will  discharge,  its  employes  for  trading  with 
a  certain  merchant,  unless  thereby  a  con- 
tract between  company  and  employes  is 
broken,  and  even  then  no  action  accrues 
to  the  merchant  unless  the  notice  is  libelous. 
Payne  v.  IVestern  <S-  A.  K.  Co.,  18  Am.  &* 
Efig.  R.  Cas.  119,  13  Lea  (Tenn.)  507,  49 
Am.  Rep.  666. 

It  is  not  libelous  for  a  railway  company 
to  publish  that  a  person  was  convicted  for 
refusing  to  pay  his  fare,  if  the  conviction  is 
described  with  substantial  accuracy;  and  it 
is  a  question  for  the  jury  whether  the  pub- 
lished statement  of  the  conviction  was  sub- 
stantially true.  Alexander  v.  North  Eastern 
R.  Co.,  6  B.  &*  S.  340,  34  L.  J.  Q.  B.  \  52, 

The  publication  by  a  railway  company 
that  a  person  had  been  convicted  of  an 
oflFense  against  its  by-laws  and  fined,  with 
the  alternative  of  three  weeks*  imprison- 
ment, is  not  made  libelous  by  the  fact  that 
the  alternative  imprisonment  w")s  fixed  at  a 
fortnight  only.  Alexander  v.  North  East- 
ern R.  Co.,  w  Jur.  N.  S.  619,  34  L./.  ].  B. 
152,  6  B.a^  S.  340,  13  W.  R.  651. 

:i.  Privileirod  coiiiiiiuiiications. — 
A  party  cannot  be  held  in  damages  for  alle- 
gations set  up  by  him  in  his  pleadings  in  a 
suit,  which  assail  the  character  of  the  other 
party,  when  it  appears  that  the  circumstances 
were  such  that  he  might  reasonably  have 
believed  that  the  allegations  were  true. 
IVallis  V.  New  Orleans  &*  C.  R.  Co.,  29  La. 
Ann.  66. 


I  i! 


A  list  of  railroad  employes  discharged, 
and  stating  the  cause  of  their  discharge, 
which  is  sent  to  the  agents  of  the  company 
who  were  authorized  to  employ  men,  and 
kept  for  their  use,  \s  prima  facie  a  privileged 
communication.  Bacon  v.  Michigan  C.  R, 
Co.,  31  Am.  &•  Eng.  R.  Cas.  358,  66  Mich. 
166,33  N.  IV.  Rep.  181,  9  West.  Rep.  709. 
Hunt  V.  Great  Northern  R.  Co.,  48  Am.  &- 
Eng.  R.  Cas.  113  [1891],  2  Q.  B.  189. 

And  although  it  contains  a  false  state- 
ment, damages  therefor  cannot  be  recovered 
unless  express  malice  be  shown.  Missouri 
Pac.  R.  Co.  V.  Bchee,  2  lex.  Civ.  App.  107, 
21  S.  \V.  Rep.  3S4. 

Written  direction  by  a  railroad  company 
to  its  agents,  instructing  them  not  to  re- 
ceive or  ship  for  a  designated  person  any 
articles  or  merchandise  of  any  description, 
except  when  the  freight  charges  therefor 
are  prepaid,  and  a  request  to  a  connecting 
line  receiving  freight  therefrom  to  make  a 
similar  order,  is  a  privileged  communication, 
and  does  not  constitute  libel,  in  the  absence 
of  express  malice.  Allen  v.  Cape  Fear  &• 
y.  V.  R.  Co.,  35  Am.  &•  Eng.  R.  Cas.  532, 
100  A'.  Car.  397,  6  S.  E.  Rep.  105. 

Where  goods  are  shipped  over  two  roads 
with  freight  unpaid,  a  statement  by  the 
second  to  the  first  that  the  consignees  had 
not  taken  up  the  goods  because  they  were 
unable  to  pay  freight,  and  conimunicated 
by  that  company  to  the  consignors,  is  a 
privileged  communication,  and  is  not  ac- 
tionable as  slander.  Campbell  v.  Bostick, 
{Tex.  Civ.  App.)  22  S.  IV.  Rep.  828, 

4.  Publivutioii.— In  the  absence  of 
malice  or  bad  faith  a  report  by  a  corpora- 
tion to  its  stockholders  is  a  privileged  com- 
munication ;  but  this  priviki^e  does  not 
extend  to  the  preservation  of  ihe  report  for 
distribution  among  members  of  the  corpo- 
ration, or  the  members  of  t'.ie  community. 
Philadelphia,  IV.  6-  //.  V.  Co.  v.  Qu^ley, 
21  How.  (U.  5.)  202.  6  Am.  Ry.  Rep.  493. 

5.  ICntiflcatioii.— Proof  that  a  libelous 
extract  from  a  newspaper  to  the  effect  that 
plaintiff,  a  ticket  broker,  was  neither  safe 
nor  reliable  to  deal  with  was  kept  posted  in 
a  conspicuous  place  in  a  railroad  ticket 
office  for  forty  days,  and  that  the  company's 
general  passenger  agent,  after  notice,  re- 
fused to  interfere  therewith,  is  sufficient 
evidence  to  justify  a  finding  that  the  com- 
pany had  published  or  ratified  the  act,  or 
that  it  was  published  by  an  employe  in  the 


LIDfiL  AND    SLANDER,  0-8. 


259 


course  «/  his  employment.     Fogg  v.  Boston 
^  L.  a:  Corp.,  148  Mass.  513,  20  TV.  E.  Rep. 

109. 

O.  Who  may  sue. — A  corporation  may 
maintain  an  action  for  libel ;  certainly 
for  language  used  concerning  it  in  the 
trade  or  occupation  which  it  carries  on. 
Ohio  ^  M.  K.  Co.  V.  Press  Pub.  Co.,  52  Am. 
.S-  Eiig.  a:  Cas.  155,  48  Ped.  Rep.  206.— 
Following  Trenton  Mut.  L.  &  F.  Ins.  Co. 
V.  Perrine,  23  N.  J.  L.  402;  Mutual  R.  F. 
L.  Assoc.  V.  Spectator  Co.,  18  J.  &  S.  (N. 
Y.)46o;  Metropolitan  Saloon  Omnibus  Co. 
V.  Hawitins,  4  H.  &  N.  146;  Shoe  &  L. 
Baniv  T'.Thompson,  18  Abb.  Pr.  (N.  Y.)  413. 

Tile  defendants  discharged  the  plaintifT, 
a  car  driver  in  their  service,  for  a  violation 
of  his  contract,  and  said  that  he  had  ap- 
propriated fares  to  himself.  The  plaintiff 
put  himself  in  the  position  of  having  the 
ciiarge  made  against  him,  and  he  cannot 
hold  the  defendants  liable  for  a  malicious 
intent  toward  him,  when  tlie  defense  which 
tlicy  set  up  to  his  action  against  them  was 
founded  on  his  own  act.  Therefore  the 
claim  of  plaintiff  for  damages  on  the 
ground  of  his  having  been  maliciously  and 
unjustly  slandered  cannot  be  maintained. 
HcMtt  v.  New  Orleans  Sf  C.  R.  Co.,  28  La. 
Ann.  685. 

7.  Who  may  be  sued.— A  corporation 
is  liable  in  damages  for  the  publication  of  a 
libel,  as  it  is  for  its  other  torts.  Pogg  v. 
/ioston  6-  L.  R.  Co.,  148  Mass.  513,  20  A'. 
/:.  A't/.  109.  Paeon  v.  Michigan  C.  R.  Co., 
20 .-/;«.  &•  Eng.  R.  Cas.  633,  55  Mich.  224, 
54  Am.  Rep.  372,  21  A'.  W.  Rep.  324. 
.Missouri  I'ac.  R.  Co.  v.  Richmond,  38  Am. 
Sf  Eng.  R.  Cas.  241,  73  Tex.  568, 4  L.  R.  A. 
280,  II  5.  W.  Rep.  555,  29  Cent.  L.  J.  69. 
Missouri  Pac.  R.  Co.  v.  Behee,  2  Tex.  Civ. 
App.  107,  21  S.  IV.  Rep.  384.  Whitfield  v. 
South  Ea^fern  R.  Co.,  El.,  Bl.  &*  El.  115.  4 
Jur.  N.  S.  688,  27  L.  /.  Q.  B.  229. 

A  railroad  corporation  is  liable  for  the 
acts  of  its  agents,  either  ex  contractu  or 
^r  delicto,  when  done  in  the  course  of  their 
employment ;  and  this  rule  includes  actions 
for  libel  published  by  agents.  Philadelphia, 
ir.&'li.  R.  Co.  V.  Qutgley,  21  //ow.  (U.  S.) 
202, 6  Am.  Ry.  Rep.  493.— DISAPPROVED  IN 
Owsley  t/.  Montgomery  &  W.  P.  R.  Co.,  37 
Ala.  560.  Followed  in  Hussey  v.  Nor- 
folk Southern  R.  Co.,  98  N.  Car.  34. 
Quoted  in  Lewis  v.  Meier,  4  McCrary  (U. 
S.)  286, 14  Fed.  Rep.  311 ;  New  York,  L.  E. 
4  VV.  R.  Co.  V.  Bennett,  50  Fed.  Rep.  496, 


6  U.  S.  App.  I,  I  C.  C.  A.  544;  Jordan  v 
Alabama  G.  S.  R.  Co.,  20  Am.  &  Eng.  R. 
Cas.  628,  74  Ala.  85,  49  Am.  Rep.  800; 
Philadelphia,  W.  &  B.  R.  Co.  v.  Hoeflich, 
18  Am.  &  Eng.  R.  Cas.  373,  62  Md.  300,  50 
Am.  Rep.  223;  Brokaw  v.  New  Jersey  R.  & 
T.  Co.,  32  N.  J.  L.  328 ;  Atlantic  &  G.  VV.  R. 
Co.  V.  Dunn,  19  Ohio  St.  162;  Spellman  v, 
Richmond  &  D.  R.  Co.,  35  So.  Car.  475. 
Revikwed  IN  Gillett  V.  MissoMri  Valley  R. 
Co.,  55  Mo.  315;  Vance  v.  Erie  R.  Co.,  32 
N.  J.  L.  334;  Palmer  v.  Charlotte,  C.  &  A. 
R.  Co.,  3  So.  Car.  580. 

A  railroad  company  is  liable  in  damages 
for  a  libelous  letter  written  by  its  superin- 
tendent relating  to  a  matter  within  the 
scope  of  his  authority,  in  this  case  the  let- 
ter being  in  response  to  a  claim  of  damages 
on  account  of  the  loss  of  baggage  of  a  pas- 
senger.  Alabama  &*  V.  R.  Co.  v.  Brooks, 
6g  Miss.  168,  13  So.  Rep.  847. 

A  railroad  company  is  not  responsible, 
under  the  rule  of  respondeat  ouster,  for  a 
libel  of  an  employe  published  by  its  general 
superintendent  without  authority  from  the 
corporation ;  nor  is  the  superintendent 
himself  responsible,  when  there  is  no  evi- 
dence submitted  that  the  libelous  article 
was  dictated  or  even  inspired  by  him. 
Nenry  v.  Pittsburgh  &*  L.  E.  R.  Co.,  139 
Pa.  St.  289,  21  Afl.  Rep.  157. 

Even  if  the  superintendent  had  furnished 
all  the  information  contained  in  the  publi- 
cation, as  imputed  to  him  by  the  plaintifT, 
he  would  not  thereby  be  responsible  for  the 
libel  in  the  absence  of  proof  submitted 
that  he  went  one  step  further,  and  pro- 
cured its  publication.  Henry  v.  Pittsburgh 
&*  L.  E.  R.  Co.,  139  Pa.  St.  289.  21  Atl.  Rep. 
'57. 

8.  Pleading^. — A  complaint  in  an  action 
for  libel  by  a  discharged  conductor,  stating 
that  he  had  applied  to  various  other  com- 
panies, but  had  been  refused  employment 
on  account  of  the  publication  sent  out  by  de- 
fendant, is  sufficient  to  admit  evidence  on 
that  point,  without  setting  out  the  names  of 
the  companies  to  which  he  had  made  appli- 
cation, in  the  absence  of  a  demand  for  more 
specific  averments.  Missouri  Pac.  R.  Co. 
V.  Richmond,  38  Am.  &»  Eng.  R.  Cas  241, 
73  Tex.  568,  4  L.  R.  A.  280,  i\  S.  W.  Rep. 
555,  29  Cent.  A.  7.69. 

Where  a  railway  company  is  sued  for 
publishing  that  the  plaintifT  was  convicted 
of  traveling  without  paying  his  fare,  "  mean- 
ing thereby  that  the  plaintifT  had  attempted 


'■Mir 


'■.-'■^  'i 


1^^    1 


I 


ma  ^\ 


2W 


LIBEL   AND  SLANDER,  W-IS. 


to  defraud  the  company,"  a  plea  that  he  was 
so  convicted  without  expressly  justifying 
tiic  innuendo  is  good,  since  the  only  offense 
cognizable  under  the  statute  is  for  traveling 
without  previously  paying  the  fare  "  with 
intent  to  avoid  payment  thereof."  Biggs 
V.  Great  Eastern  K.  Co.,  i6  »'.  A'.  908.  18 
L.  7-.  482. 

O.  Evi<leiice.— Where  a  railway  com- 
pany is  sued  fur  libel  in  publishing  that  the 
plaiiitifl  was  convicted  of  traveling  without 
a  ticket,  and  in  defense  pleads  the  truth, 
the  question  for  the  jury  is  whether  the 
company's  account  of  the  conviction  is  sub- 
stantially correct.  In  such  case  the  plaintiff 
witli  a  view  to  the  assessment  of  damages 
may  enter  into  all  the  circumstances  which 
led  to  the  conviction,  although  such  evi- 
dence tends  to  show  that  such  conviction 
was  erroneous.  Gwynn  v.  Houth  Eastern  K, 
Co.,  \iL.T.  738. 

Subsequent  publications  of  a  libel,  or  other 
like  publications,  are  admissible  for  the  pur- 
pose of  showing  malice  on  the  part  of  the 
defendant.  Behee  v.  Missouri  Pac.  K.  Co., 
71  Tex.  424,  9  S.  IV.  Rtp.  449. 

It  was  shown  that  a  copy  of  the  black  list 
(sought  to  be  proved)  had  been  in  posses- 
sion of  an  assistant  superintendent  of  the 
defendant  railway  company ;  that  said  as- 
sistant had  returned  the  paper  to  the  gen- 
eral superintendent,  and  notice  to  produce 
had  been  served  upon  defendant.  Held, 
that  the  predicate  was  sufficient  to  admit 
secondary  evidence  to  the  contents  of  such 
paper  or  list.  Behee  v.  Missouri  Pac.  R. 
Co.,  71  Tex.  424,  9  S.  W.  Rep.  449. 

A  discharged  employ^  having  obtained 
transportation  by  means  of  an  employe's 
ticket,  the  superintendent  had  a  notice  put 
up  stating  he  had  been  discharged  for  fail- 
ing to  "  ring  up  "  fares.  As  such  a  charge 
does  not  imply,  of  necessity,  the  commis- 
sion of  a  crime,  opinions  of  witnesses  as  to 
the  meaning  of  the  innuendo  were  incompe- 
tent in  an  action  for  libel  brought  against 
the  company.  Pittsburgh,  A.  <S-  M.  Pass. 
R.  Co.  v.  McCurdy,  114  Pa.  St.  554,  8  Atl. 
Rep.  230. 

10.  Questions  of  law  and  fact  — 
Malice.— The  question  whether  a  libel  was 
published  with  malice,  or  with  the  intent  to 
injure  the  plaintiff,  is  for  the  jury.  Bacon 
V.  Michigan  C.  R.  Co.,  31  Am.  <S-  Eng.  R. 
Cas.  357,  66  Mich.  166,9  ^^"t.  Rep.  709,  33 
A^.  IV.  Rep.  181. 

The  question  whether  the  occasion    is 


such  as  to  rebut  the  inference  of  malice,  if 
the  communication  be  bona  fide,  is  one  of 
law  for  the  court ;  but  whether  bonn  fid,s 
existed  is  one  of  fact  for  the  jury.  Baconw 
Michigan  C.  R.  Co.,  31  /////.  Q^Eng.  R.  Cas. 
357,  66  Mich.  166,  9  West.  Rep.  709,  33  .\', 
IV.  Rep.  181. 

Whether  a  servant  in  writing  the  letter 
honestly  believed  the  truth  of  the  state- 
ments therein  is  a  question  for  the  jury,  and 
his  assertion  is  not  conclusive  of  what  the 
motive  was.  Alabatna  <&>•  V.  R.  Co.  v. 
Brooks,  69  Miss.  168,  13  So.  Rep.  847. 

Plaintiff,  a  street-car  conductor,  was  dis- 
charged for  allowing  another  discharj^ed 
employe  to  ride  on  employes'  tickets,  11  nd 
the  company  posted  a  notice  that  plaintiff 
had  been  discharged  "  for  failing  to  ring  up 
all  fares  collected,"  and  that  discharged  em- 
ployes were  not  allowed  to  ride  on  em- 
ployes' tickets.  Held,  in  an  action  for  libel, 
that  it  was  for  the  court  to  construe  the  no- 
tice, and  to  determine,  in  the  absence  of 
evidence,  whether  the  words  covered  the 
crime  of  embezzlement  as  charged  in  tiie 
innuendo.  Pittsburgh,  A.  &•  M.  Pass.  A'. 
Co.  v.  McCurdy,  1 14  Prt.  St.  554,  8  Atl.  Rep. 
230. 

1 1 .  Instructions.— Where  the  cause  of 
discharge  of  persons  from  employment  is 
stated  to  be  for  stealing,  in  an  action  for 
libel,  the  evidence  on  the  question  of  good 
faith  in  making  the  statements  should  be 
submitted  to  the  jury,  where  there  was  evi- 
dence to  show  that  defendant's  agents  were 
acting  through  spite  or  resentment  towards 
plaintiff.  Bacon  v.  Michigan  C.  R.  Co.,  31 
Ant.  &^  Eng.  R.  Cas.  357.  66  Mich.  166,  9 
West.  Rep.  yog,  33  A'.  H'.  Rep.  181. 

In  an  action  for  libel  in  publishing  plain- 
tiff's name  on  the  black  list  as  an  employe 
discharged  for  incompetency,  it  is  error  to 
instruct  that  the  malice  essential  to  such  a 
libel  is  express  malice,  which  means  wicked 
intent,  and  that  such  intent  must  be  proved 
like  any  other  fact  and  is  ndver  to  be  pre- 
sumed. Behee  V.  Missouri  Pac.  R.  to.,  7' 
Tex.  424,  9  5.  W.  Rep.  449. 

12.  Damafces.  —  Exemplary  damages 
may  be  recovered,  in  an  action  for  libel 
against  a  corporation,  when  the  evidence 
shows  that  it  was  published  with  express 
malice.  Missouri  Pac.  R.  Co.  v.  Richmond, 
38  Ant.  6-  Eng.  R.  Cas.  241, 73  Tex.  568, 4  L, 
R.  A.  280,  II  5.  W.  Rep.  5  55,  29  Cent.  L.J. 

69- 
Where  a  libelous  publication  by  a  corpora- 


w 


LICENSE,  1-3. 


2GI 


tion  is  made  under  circumstances  such  as 
to  repel  an  inference  of  malice,  exemplary 
damages  are  not  recoverable.  Philadelphia, 
ir.S^/i.  A\  Co.  V.  Qu^ley,  21  How.  {l/.  S.) 
2j:!,  6  Am.  Ry.  Kep.  493. 

A  verdict  for  $2000  against  a  railway  com- 
pany for  blacklisting  a  brakenian  by  falsely 
pubiisliing  that  he  was  discharged  for  in- 
competency—/<•'</,  not  excessive.  Missouri 
I'ac.  A\  Co.  V.  Bihe.,  2  Te.-.  Civ.  App.  107, 
21  5.  W.  Rep.  384. 


LICENSE. 

Construction  of  road  under,  effect  on  land- 
owner's right  to  sue  in  ejectment,  see 
EjKciMRNT,  «l;  Eminknt  Domain,  1020. 

Distingruished    from    easement,    see    Ease- 

M  K.N  IS,  it. 

From  piaintifTs  grantor,  to  flood  land,  as  a 

defense,  see  Flooding  Lands,  59. 
Of  ferries,  see  Fekries,  2. 

—  railway  engineers,  see  Interstate  Com- 

MF.KCK,  212. 

To  enter,  as  a  defense  to  landowner's  action 
for    trespass,     see     Eminent      Domain, 

io7;». 

before  payment  of  damages,  when  im- 
plied, see  Eminem  Domain  422. 

—  manufacture  or  sell  patented  articles,  see 

I'atents  for  Inventuins,  IJI. 

—  use  right  of  way,  see  Eminent   Domain, 

224. 

I.  NATURE,  VALIDITY,  AHD  EFFECT..  261 
II.  BEVOOATIOH 263 

I.  HATURE,  VALIDITY.  AHD  EFFECT. 

1.  Generally.— Acts  done  under  a  parol 
license,  prior  to  a  revocation  thereof,  do  not 
constitute  trespass,  liiuhanan  v.  Logans- 
port.  C.  <S-  S.  W.  R.  Co.,  71  In,l.  265. 

Where  a  licensee  has  a  right  to  the  pos- 
session of  land  for  a  specified  purpose,  and 
commits  no  act  which  his  license  does  not 
cover,  the  owner  thereof  cannot  destroy 
such  riKht.  liuchanan  v.  Logansport,  C.  &* 
i".  //'.  A'.  Co.,  71  //id.  265. 

2.  Li«>«>iis(;  to  cuter  niid  use  laiul, 
generally. — Permission  by  a  company  to 
employes  to  occupy  land  within  the  inclo- 
sure  of  its  road  does  not  extend  to  other 
persons  who  are  not  employes.  Galena  &* 
C.  U.  R.  Co.  V.  Jacobs,  20  ///.  478. 

An  incorporated  railway  company  is  a 
trustee  of  the  right  of  way  for  the  com- 
monwealth for  the  use  of  her  citizens,  and 
a  P'.iiiiissive  privilege  from  such  company 


differs  entirely  from  a  privilege  on  private 
property  by  individuals,  where  the  expendi- 
ture of  money  is  to  be  attributed  to  a  mu- 
tual understanding  that  the  privilege  should 
remain  unaltered.  Heyl  v.  Philadelphia, 
IV.  &*  /.'.  R.  Co.,  51  Pa.  5/.  469. 

3.  LicenMo  to  voiiMtriict  track  and 
line  a  right  of  way.  —  Where  a  land- 
owner gives  a  railroad  company  a  parol  li- 
cense to  occupy  his  land,  he  cannot  recover 
damages  for  such  occupancy  as  long  as  the 
license  remains  unrevoked.  Miller  v.  Au- 
burn 6-  .v.  R.  Co.,  6  HilKN.  Y.)  61.— Re- 
viewed IN  Eggleston  v.  New  York  &  H.K. 
Co.,  35  Barb.  (N.  Y.)  162. 

But  a  landowner  cannot  grant  a  right  to 
enter  upon  and  occupy  his  lands  for  an 
indefinite  length  of  time,  unless  it  be  by 
conveyance  sufficient  to  create  a  frei  hold 
under  the  statute  of  frauds.  Miller  v.  Au- 
burn &*  S.  R.  Co.,  6  Hill  (N.  Y.)  61. 

A  mere  parol  license  to  construct  a  rail- 
way track  over  the  land  of  another  is 
within  the  statute  of  frauds,  and  a  claim  of 
right  under  such  license  cannot  be  enforced 
in  equity,  even  after  the  expenditure  of  a 
large  sum  of  n!">ney  in  constructing  the 
road  and  track,  made  on  the  faith  of  it. 
Such  a  license,  if  perpetual,  would  be  to 
create  an  interest  in  the  land,  which  cannot 
be  granted  by  parol.  .SV.  Louis  Nat.  Stock 
Yards  V.  Wigf^ins  Ferry  Co.,  112  ///.  384. — 
Criticising  Russell  v.  Hubbard.  59  III. 
335.  Following  Woodward  v.  Seely,  11 
111.  157. 

Where  a  company,  under  a  license  from 
the  owner,  takes  possession  of  ground  for  a 
right  of  way,  and  expends  money  in  the 
construction  and  maintenance  of  its  line  of 
road  thereon,  it  acquires,  in  the  absence  of 
any  limitation  appearing,  a  right  of  way 
of  the  full  statutory  width  of  one  hundred 
feet.  Campbell  v.  Indianapolis  &*  V,  R. 
Co.,  30  Am.  &•  Eng.  R.  Cas.  304,  no  Ind. 
490,  9  West.  Rep.  371,  11  A'.  E.  Rep.  482.— 
Explained  in  Indianapolis  &  V.  R.  Co.  v. 
Reynolds,  116  Ind.  3^6,  19  N.  E.  Rep.  141. 
Quoted  in  Hargis  v.  Kansas  City,  C.  &  S. 
R.  Co..  43  Am.  &  Eng.  R.  Cas.  599,  100  Mo. 
210,  13  S.  W.  Rep.  680. 

Where  the  owner  of  land  has  allowed  the 
construction  of  a  railroad  over  it,  he  is 
chargeable  with  knowledge  that  the  road  is 
of  such  a  permanent  nature  that  it  cannot 
well  be  removed  or  abandoned.  Harlow  v. 
Marquette,  H.  &-  O.  R.  Co.,  41  Mich.  336. 

Permission  to  build  a  road  over  one's 


/-  :s'. 


^ '''■:-    il 


9fe.»<V 


^ip'  -Jl" 


263 


LICENSE,  4-10. 


^ /■■■!;! 

^■'4 

m:y:^^ 

!-  -r-- 

!''i 

'■'.f\ 

1? 

'■-:f: 

'•'}  -.]]',' 

■  \': 

land  implies  authority  to  use  it  afterwards. 
Harlow  v.  Marquette,  H.  &*  O.  A'.  Co.,  41 
Afic/i.  336. 

Wliere  a  company  enters  upon  land  and 
constructs  its  road  under  the  mere  license 
of  the  owner  of  the  land,  such  license  is  a 
protection  for  acts  done  under  it.  Kremer 
V.  Chicago,  Af.  6-  St.  P.  A'.  Co.,  51  Ai'i.  &> 
Eng.  A'.  Cas.  382,  51  Minn.  15,  52  N.  W. 

Hep.  977- 

Where  a  company  would  be  entitled  to 
protection  in  laying  a  track  over  lands 
condemned  under  its  charter,  from  an  over- 
flow of  water,  its  licensees  to  lay  a  track 
over  the  same  lands  are  entitled  to  the 
same  protection.  Longwood  Valley  R.  Co. 
V.  Baknr,  27  N.J.  Eg.  i66. 

4.  License  to  carry  away  Htoue.— 
Where  a  landowner  grants  permission  to 
railroad  contractors  to  take  stone  from  his 
land  for  the  construction  of  the  road,  by 
implication  a  license  is  also  given  to  haul 
the  stone  across  the  land  to  the  railroad, 
if  necessary,  doing  no  unnecessary  damage. 
Clark  V.  VennonI  &•  C.  K.  Co.,  28  Vt.  103. 

5.  License  to  erect  {n^raiii-lioiise.— 
Where  a  company  gave  plaintiiTs  a  license 
to  erect  a  grain-house  upon  its  grounds,  at 
a  point  to  be  designated  by  an  oflicer  of 
the  road — //^/r/,  that  the  purchase  by  plain- 
tiffs of  a  lot  adjacent  to  the  company's 
grounds,  with  the  expectation  of  using  it  in 
connection  with  the  building,  did  not  render 
the  license  an  easement  appurtenant  to  the 
lot,  and  which  could  not  be  revoked  by  the 
company,  nor  give  plaintiffs  a  right  of  action 
for  damages  against  another  who,  with  the 
consent  of  the  company,  erected  a  building 
upon  the  site  desired  by  plaintiffs,  f^ipp  v. 
Coenen,  55  lo^va  63,  7  N.  W.  Rep.  417. 

6.  License  to  erect  mill  and  dam. 
— Where  the.  general  superintendent,  who 
is  the  chief  executive  officer  of  a  railroad, 
grants  a  license  to  an  adjoining  landowner 
to  erect  a  mill  and  dam  partly  on  the  land 
of  the  road  so  as  to  overflow  a  part  of 
it,  and  it  is  done  at  much  expense  to  the 
licensee,  and  is  beneficial  to  the  road,  the 
company  is  bound  thereby,  especially  where 
it  is  in  plain  view  of  the  road  and  no  objec- 
tion is  made  by  the  directors.  Southwestern 
R.  Co.  V.  Mitchell,  69  Ga.  114. 

And  where  such  dam  is  washed  away,  the 
right  of  the  licensee,  or  one  holding  under 
him,  to  rebuild  is  not  lost,  where  such 
superintendent  has  assured  him  that  he 
shall  not  be  molested,  and  where  there  has 


been  no  Inches  in  rebuilding.  Southwestern 
R.  Co.  V.  Mitchell,  69  Ga.  1 14. 

7.  License    to  erect   a   wharf.— A 

license  or  permission  by  the  board  (;f  oiDal 
commissioners  to  the  plaintiff's  ancestor  to 
construct  a  wharf  on  the  brim  side  of  a 
state  canal  by  excavating  twelve  feci  hnrk 
into  his  lot  from  the  water-line,  ixid  tiic 
subsequent  erection  of  the  wharf  and  iise 
for  many  years,  could  not  divest  the  title  of 
the  commonwealth  to  the  land  thereby  oc- 
cupied, if  it  was  within  the  line  of  survey 
reported  by  the  viewers.  HaUeman  v.  Penn- 
sylvania C.  R.  Co.,  50  Pa.  .s'/.  425. 

8.  License  to  use  railway  switch.— 
In  the  absence  of  direct  proof  of  a  license, 
there  must  be  an  uninterrupted  use  of  a 
railroad  switch  for  twenty-one  years  to  en- 
title the  user  to  claim  as  licensee,  f/eyl  v. 
Philadelphia.  IV.  6-  B.  R.  Co.,  6  Phila.  (Pa.) 
42. 

i>.  Existence  of  license,  when  n 
question  of  fact.— A  space  in  close  prox- 
imity to  a  station  was,  before  the  railroad 
was  constructed,  a  part  of  a  higliway  by 
dedication.  The  tracks  of  the  railroad  were 
laid  across  it,  and  its  ordinary  use  by  tiie 
public  was  greatly  reduced,  and  for  tliirty- 
iive  years  its  principal  use  was  by  persons 
going  to  and  from  the  passenger  station  of 
the  company,  and  teams  going  to  and  from  its 
freight  station.  The  company  claimed  that 
upon  these  facts  a  license  must  be  inferred 
for  such  use  and  an  abandonment  of  tiie 
road  by  the  public  for  general  use.  Tlie 
court  below  found  that  no  such  license  ex- 
isted. Nelil,  that,  this  being  a  question  of 
fact,  the  finding  was  conclusive ;  but  that  if 
the  question  was  to  be  regarded  as  one  of 
law,  there  was  nothing  in  the  character  of 
the  use  which  compelled  tiie  court  to  infer 
the  license  as  a  matter  of  law.  Hartford  v. 
Ne^v  York  &*  N.  E.  R.  Co.,  59  Conn.  250, 22 
Atl.  Rep.  37. 

Where  a  railway  company  relies  on  ii 
license  from  the  owner  of  land,  but  on  tills 
point  the  evidence  is  conflicting  and  con- 
tradictory, and  is  properly  submitted  to  tiie 
jury,  their  finding  that  no  license  was  given 
will  not  be  disturbed  by  the  court.  Mis- 
souri, K.  &^  T.  R.  Co.  v.    Ward,  10  Kan. 

352. 

10.  Knowledfire  and  ratiflcatinn  ol 
license  by  t;rantee  of  licensor.— Itie 

occupancy  and  use  of  land  by  a  company 
for  a  roadbed  and  track  for  the  running  of 
trains  is  sufficient  notice  to  one  claiming 


LICENSE,  11,  12. 


263 


under  the  licensor  of  the  company's  equity, 
for  tiiiit  which  will  put  a  party  upon  inquiry 
is  notice.  Campbell  v.  Initianapplis  &*  V, 
A'.  Co.,  30  Am.  &*  Eng.  A.  dts.  304,  1 10 
///,/.  490,9  IVt'sf.  Kef>.  371.  II  A".  E.  Kfp. 
^.S2._F()i,i.t)\VKi)  IN  Evansville  &  T.  H.  K. 
Co.  V.  Nye,  113  Ind.  223. 

A  tenant  in  common  conveyed  an  un- 
divided moiety  of  his  land  ;  a  railroad  com- 
pany afterwards  erected  a  warehouse  on  it ; 
liie  other  tenant  then  conveyed  his  half  to 
tlic  same  grantee,  reciting  that  the  company 
liad  erected  the  warehouse,  and  in  con- 
sideration were  to  allow  a  passage  over  their 
other  ground  to  other  land  of  the  grantors, 
tiieir  heirs  and  assigns.  The  grantee  used 
the  right  of  way.  Held,  that  this  was  evi- 
dence for  the  jury  of  ratification  by  the 
grantee  of  the  license  to  the  company. 
Valuable  improvements  having  been  made 
on  ihc  faith  of  the  license,  it  was  not  within 
tlie  statute  of  frauds,  and  a  subsequent  rati- 
fication by  parol  was  equivalent  to  precedent 
authority.  Cumberland  Valley  K,  Co.  v. 
.McLana/ian,  59  Pa.  St.  23. 

11.  Timber  IlceiiseH.— The  timber 
licenses  claimed  by  the  plaintifT  as  licensee 
of  the  Ontario  goverriment  were  subject  to 
the  right  of  the  Canada  Central  R.  Co.,  ac- 
quired before  confederation,  to  construct 
tlieir  road  across  the  crown  lands,  over 
which  the  license  in  question  extended ; 
and  the  defendants,  assignees  of  the  railway 
company,  were  therefore  not  liable  in  tres- 
pass for  entering  upon  and  cutting  timber 
on  tiie  said  lands  in  prosecution  of  the  work 
of  building  the  said  railway.  Foran  v.  Mc- 
Intyre,  45  U.  C.  Q.  B.  288. 

U.  B£VOCATIOH. 

12.  What  licenses  are  revocable.*" 

—A  license  to  build  a  railroad  upon  one's 
land  would  excuse  any  acts  properly  done 
under  the  license  while  the  same  was  in 
force,  but  such  license  might  be  revoked  at 
pleasure  as  to  everything  in  the  future. 
BUmdell  V.  Portsmouth,  G.  F.  &•  C.  R.  Co., 
51  N.  H.  483.  Wood  V.  Mich^an  Air  Line 
A'.  Co.,  52  Am.  St*  Eno.  R.  Cas.  37,  90  Mich. 
334.  S'.iV.  W''.  Rep.  263. 

A  parol  license  to  enter  upon  the  right  of 
way  belonging  to  a  railroad  company  for 


Parol  licenses,  nature   and   revocation  of, 
generally,  see  note.  31  Am.  St.  Rkp.  712. 

When  license  to  enter  on  land  may  be  revoked, 
Me  note,  30  Am.  &  Eng.  R.  Cas.  307. 


the  purpose  of  constructing  a  crossing  may 
be  revoked.  A'ortherii  Pac.  R.  Co.  v.  liiir' 
liHfrfon  &*  .1/.  A'.  Co,  I  Am.  &-  Eng.  A'.  Cas. 
8,  2  MiCrary  {C.  S.)  203,  4  Fed.   Rep.  298. 

Any  license  pertaining  to  land  may  be 
revoked,  so  far  iis  it  is  not  executed  ;  other- 
wise, a  mere  license  might  operate  to  con- 
vey an  interest  in  land.  Blaisdell  v.  Ports- 
mouth, G.  F.  <S-  f.  R.  Co.,  51  A".  //.  483. 

A  right  to  come  upon  land  of  another,  and 
remain  for  an  indefinite  time,  can  be  granted 
only  by  deed  ;  and  where  the  license  is  by 
parol,  it  may  be  revoked  at  any  time,  even 
if  money  be  paid  for  it,  and  expense  in- 
curred in  erecting  buildings  or  other  perma- 
nent improvements  on  the  premises.  Het- 
field  v.  Central  R.  Co.,  29  ^V.  /.  L.  571  ; 
reversing  29  A'.  /.  L.  206.— Revikwed  in 
New  Jersey  Midland  R.  Co.  v.  Van  Sycklc, 
37  N.  J.  L.496. 

A  license  even  under  seal  is  as  revocable 
as  one  by  parol ;  on  the  other  hand,  a 
license  by  parol,  coupled  with  an  interest 
and  founded  on  a  consideration,  is  as  ir- 
revocable as  if  njadc  by  deed.  Williamston 
&»  T.  R.  Co.  V.  Battle,  66  A'.  Car.  540. 

A  railroad  company  agreed  with  a  coal 
company  that  it  might  place  its  cars  upon 
the  railroad  for  the  shipment  of  coal  on  the 
following  conditions :  (i)  to  allow  one  fourth 
of  one  per  cent,  per  ton  a  mile  for  cars  so 
used ;  (2)  to  make  good  any  damages  to  the 
cars  caused  by  accidents,  the  fault  of  the 
road  ;  (3)  to  keep  the  cars  in  repair,  and  to 
charge  for  this  service  the  actual  cost  there- 
of as  charged  in  first-class  shops ;  (4)  that 
the  company  would  make  no  actual  agree- 
ment to  give  the  cars  prompt  transit,  but  in 
any  event  to  give  such  cars  a  proportion  of 
the  whole  amount  of  power  used.  Held, 
that  such  an  agreement  constituted  a  mere 
license  revocable  at  the  will  of  the  railroad 
company.  Baltimore  &^  O.  R.  Co.  v.  Poto- 
mac Coal  Co.,  51  Md.  327. 

Where  a  landowner  granted  a  parol  li- 
cense to  a  railway  com[)any  to  construct, 
maintain,  and  operate  its  road  over  his  land, 
and  he  contended  that  such  license  was 
granted  in  consideration  of  the  promise  of 
exceptional  privileges  to  him,  which  |)romise 
had  not  been  performed  and  was  denied  by 
the  company,  after  it  had  constructed  its 
tracks  over  his  land— //<•/</.•  (i)  that  the  com- 
pany has  not  so  clearly  established  an  im- 
conditional  license  on  the  faith  of  which  it 
had  acted  as  to  entitle  it  to  an  injunction 
against  a  revocation  of  the  same ;  (2)  that 


.  .i. 


'  >/  1 1 


rTf 


'J  04 


LICENSE,  13-10. 


III 


ilic  remedy  of  the  company  by  condemna- 
tion, with  the  ri^lit  to  restrain  the  land- 
owncir  |)C'nding  proiecdinKS  if  necessary,  is 
suiru-ient.  lialtimore  ii"  II.  A'.  Co.  v.  Algirt, 
J 5  Am.  (5-  Eiig.  A'.  Las.  147,  65  MJ.  337.  4 
y///.  AV/».  293. 

A  land-grant  railroad  issued  circulars 
promising  permits  of  settlement  on  the  land 
on  condition  of  immediate  improvement, 
before  its  title  to  the  land  had  been  per- 
fected. //<•/</.  that  this  amounted  to  a  mere 
license,  revocable  at  any  time  before  it  had 
been  accepted  or  acted  on  by  a  settler. 
Elhworth  v.  Southern  Minnesota  R,  Co.,  3 1 
Minn.  543.  18  ,V.  W.  liif>.  822. 

1:1.  Lit;<*iiHe  t»  H<>ll  liiiicli  oil  traiiiH. 
— A  mere  implied  license  to  sell  lunches  on 
a  railroad  train,  no  matter  how  long  enjoyed, 
for  which  no  consideration  has  been  paid,  is 
Si;vocable  at  any  time;  and  such  revocation 
results  from  notice  not  to  prosecute  the 
business  in  the  future.  Fluker  v.  Georiiia 
A.  &*  li.  Co.,  38  Am.  &■'  ling.  R.  Cas.  379,  81 
Ga.  461,  8  S.  E.  Rt-p.  529,  2  L.  R.  A.  843. 

14.  What  lic«iiHUH  ar»  irrevocable. 
— A  license,  coupled  with  an  interest,  is  not 
revocable  as  long  as  the  interest  exists- 
United  States  v.  lialtimore  &*  O.  R.  Co.,  i 
Hughes  (U.  S.)  138. 

One  who  permits  a  railway  company  to 
enter  upon  his  land  and  clear  a  right  of  way 
for  its  roadbed  without  objection,  under 
verbal  authority  from  him  so  to  do,  cannot 
afterwards  repudiate  the  permission  and 
maintain  an  action  in  trespass  to  try  title  to 
recover  the  strip  so  used  for  operating  the 
road.  Texas  &*  Ht.  L.  R.  Co.  v.  Jarrell,  60 
Tex.  267. 

Where  a  railroad  company  for  certain 
privileges  was  permitted  by  parol  to  con- 
struct upon  the  plaintitT's  land  a  dam,  a 
canal,  and  a  water-wheel,  for  the  purpose  of 
keeping  its  tank  supplied  witii  water,  the 
license  was  irrevocable,  and  might  be  en- 
forced in  equity  notwithstanding  the  statute 
of  frauds.  Meetze  v.  Charlotte,  C,  &*  A.  R. 
Co.,  23  So.  Car.  1. 

And  this  special  contract  being  valid  and 
therefore  of  force,  the  plaintiff,  upon  the 
withdrawal  by  the  railroad  company  of  such 
privileges,  could  not  bring  an  action  for  the 
value  of  the  use  and  occupation  of  the  land, 
but  only  for  damages  for  breach  of  the  spe- 
cial contract.  Meetze  v.  Charlotte,  C.  «S-  A, 
R.  Co.,  23  So.  Car.  \. 

15.  B8to|>|M>l  of  licensor  to  revoke. 
— A  mere  permission  to  occupy  land  is  a 


license,  which  may  be  revoked  by  the  li- 
censor or  his  grantee,  unless  some  act  is 
done  which  operates  by  way  of  estoppel  to 
make  the  license  irrevocable.  Lake  Krie&* 
ir.  R.  Co.  V.  Kennedy,  132  Ind.  274,  31  A'. 
E.  Rep.  943. 

10.  wiicre    liceiiMce     Iuin     ex- 

lieiiiied  lartce  niiiiih  of  iiioik;).  —  A 
naked  parol  license  to  enjoy  un  casement 
over  land  is  rev(jcable  by  the  licensor  at 
any  time  while  it  remains  executory,  but 
an  executed  parol  license  to  use  another's 
land,  granted  upon  a  consideration,  or  upon 
the  faith  of  which  money  has  been  ex- 
pended, cannot  be  revoked.  Messick  v. 
Midland  R.  Co.,  128  Jnd.  81,  27  A'.  E.  Rep. 
419. 

The  rule  that  a  naked  parol  license  may 
be  revoked  does  not  extend  to  cases  where 
such  licensee,  relying  upon  the  grant,  has, 
with  the  knowledge  of  the  licensor,  ex- 
pended large  sums  of  money.  In  such  a 
case  the  licensor  has  no  right  to  revoke 
such  license.  Buchanan  v.  Logansport,  C.&- 
S.  IV.  R.  Co.,  71  /nd.  265.  Campbell  v.  In- 
dianapolis &*  V.  R.  Co.,  30  Am.  &*  Eng.  R. 
Cas.  304,  no  Ind.  490,  9  I  Test.  Rep,  371,  11 
A^.  E.  Rep.  482. 

A  mere  license  to  a  railroad  to  enter  and 
lay  its  track,  not  subsidiary  to  a  valid  grant, 
may  be  revoked  at  pleasure,  and  does  not 
create  or  transfer  any  interest  in  the  land, 
even  though  granted  for  a  valuable  consid- 
eration, and  for  a  purpose  which  involves 
the  expenditure  of  money  upon  the  faith  of 
It ;  and  the  mere  fact  that  the  licensor, 
without  objection,  permits  the  licensee  to 
expend  money  on  the  land  upon  the  faith  of 
the  license  will  not  operate  as  an  estoppel. 
Minneapolis  Mill  Co.  v.  Minneapolis  <f~  .SV. 
L.  R.  Co.,  51  Minn.  304,  53  A^.  fK.  Rep.  639- 
Murdock  V.  Prospect  Park  iS-  C.  I.  R.  Co. 
73  A'.  Y.  579 ;  reversing  10  Hun  598.— A  P- 
Pi.viNr,  Washington  Cemetery  v.  Prospect 
Park  &  C.  I.  R.  Co..  68  N.  Y.  591.  Ap- 
proving Watson  V.  Chicago,  M.  &St.  P.  R. 
Co.,  46  Minn.  321,  48  N.  W.  Rep.  1129. 
— Appi.ikd  in  Syracuse  Solar  Salt  Co.  v. 
Rome,  W.  &  O.  R.  Co..  51  N.  Y.  S.  R.  530. 
F01.1.0WKI)  IN  Jamaica  &  B.  Phmkroad  Co. 
V.  New  York  &  M.  B.  R.  Co..  25  Hun  (N.  V.) 
585. 

Where  an  individual  lays  a  side  track  be- 
tween a  regular  railroad  track  and  car 
works  for  the  purpose  of  delivering  cars  to 
or  from  the  railroad,  the  railroad  company 
is  not  estopped  from  revoking  the  license 


LICENSE,  17,  18.— LICENSEES,  INJURIES   TO,  1. 


265 


to  connect  the  side  track  to  the  railroad  by 
tiic  fact  that  the  person  laying  the  side 
tracic  had  expended  large  sums  of  money  in 
creeling  the  car  works.  Jackson  v.  Phila- 
ditphm,  VV.  &»  B.  R.  Co.,  4  Del.  Ch.  180. 
— -Ai'i'i.YiNU  Pitkin  v.  Long  Island  R.  Co., 
2  Barb.  Ch.  (N.  Y.)22i. 

1 7.  What  operuteH  as  a  revucation 
— |)uutli>— A  parol  license  by  a  landowner 
that  a  company  may  lay  its  track  on  and 
occupy  certain  land,  is  no  defense  to  an 
action  to  recover  the  land,  as  it  may  be  re- 
voked at  any  time ;  and  the  death  of  the 
owtiur,  or  a  subsequent  conveyance  by  him, 
is  a  revocation.  EggUston  v.  New  York  &* 
H.  R.  Co.,  35  Bard.  (N.  V.)  162.—  Distin- 
guish i.\u  Doe  V.  North  Staffordshire  R. 
Co.,  4  Eng.  L.  &  Eq.  216;  Doe  v.  Lecds& 
U.  K.  Co.,  6  Eng.  L.  &  Eq.  283 ;  Stone  v. 
Commercial  R.  Co.,  4  M.  &  C.  122;  Burkin- 
sliaw  V.  Birmingham  &  O.  J.  R.  Co.,  4  Eng. 
L.&  Eq. 489.— Reviewing  Miller  w.  Auburn 
&S.  R.  Co.,  6  Hill  (N.  Y.)6i. 

The  decease  of  either  party  to  such  a 
license,  or  the  conveyance  by  either  of  the 
rights  affected  by  the  license,  operates  as  a 
revocation.  Blaisdell  v.  Portsmouth,  G.  F. 
&'C.K.Co.,  51  A'.  //.  483. 

The  owner  of  land  gave  permission, 
through  her  agent,  to  a  company  to  build 
its  road  over  her  land,  but  with  the  under- 
standing that  it  should  not  thereby  acquire 
any  rights  to  the  soil.  Held,  that  the  per- 
mission was  not  revoked  and  its  effect  was 
not  ciianged  by  the  fact  that  the  agent, 
from  time  to  time  thereafter,  claimed  that 
the  company  was  trespassing.  Harlow  v. 
Marquette,  //.  6-  O.  K.  Co.,  i,\  Mich.  336. 

18.  Effect  of  revocation.— Where  a 
company  enters  upon  land  and  constructs 
its  mad  under  the  mere  license  of  the 
owner  of  the  land,  such  license  is  a  protec- 
tion for  acts  done  under  it;  but  upon  its 
revocation  the  company  may  be  ejected  from 
the  premises,  unless  the  right  to  continue  to 
occupy  the  same  is  acquired  by  purchase  or 
condemnation.  The  landowner's  right  of 
action  is  not  impaired  by  mere  inaction  or 
delay  in  bringing  suit  within  the  statutory 
time.  Kremer  v.  Chicago,  M.  &*  St.  P.  K. 
Co.,  51  Am.  &»  Eng.  R.  Cas.  382,  51  Minn. 
15.  Sz-V.  IV.  Rep.  977. 

One  who  persists  in  using  a  license  to 
sell  lunches  on  a  train  after  notice  of  its 
termination  may  be  prevented  from  so  doing 
by  such  force,  not  extending  to  violence  to 
life  or  limb,  as  may  be  necessary  to  effec- 


tuate his  expulsion  from  the  prcnises. 
Fluker  v.  Georgia  R.  6-  B.  Co.,  38  Am.  6- 
Eng.  R.  Cas.  379,  81  Ga.  461,  8  S.  E,  Rep. 
529,  2  L.  R.  A.  843. 


UGENBE  TAXES. 
Decisions  under  state  laws  regarding,  Ke 

Taxation,  a02-39tf. 
In  cities,  see  Municipal  Corporations,  O. 
Of  street  railways,  see  Street  Railways, 

285-203. 
—  ticket   brokers,  see  Tickets  and  Fares, 

lao. 

Validity  of,  under  interstate  commerce  law, 
tee  Interstate  Commerce,  208-214. 


UCEN8EE8. 
Assaults  upon,  see  Assault,  ff. 
At  stations,  duty  towards,  see  Stations  and 

Depots,  73,  74. 
Duty  of  company  to  persons  riding  on  passes, 

see  Passes,  9-lU. 
—  to,  distinguished  from  duty  to  trespassers, 

see  Trespassers,  Injuries  to,  20. 
Injuries  to,  see  Licensees,  Injuries  to. 
On  trains,  rights  of,  see  Carriage  op  Passen- 
gers, 80-91. 
Persons  on  premises  or  track  under  implied 

license,  see  Trespassers,  Injuries  to,  11. 
Right  of,  to  sublet,  see  Leases,  etc.,  88. 
sue  for  damages  caused  by  fire,  see 

Fires,  161. 
killing    stock,  see   Animals, 

Injuries  to,  310. 


LICENSEES,  INJURIES  TO. 

I.  WHO  DKBinCD  TO  BB  LICEHIU8. . .   265 
II.  COMPAITT'B  DUTY  TO  LICEH8BB8. . .   268 

1.  In  General. 268 

2,  Persons  Walking  on  or  Cross- 

ing Track 271 

m.  OONTBIBUTOBT     HBOUOBHGB     OF 
LICEHSBE 275 

I.  WHO  DEEMES  TO  BE  LICENSEES. 
1.  Generally.*— Where  a  railroad  com- 
pany provides  offices  for  the  transaction  of 
its  business,  accessible  from  the  public 
streets,  the  presence  in  the  freight  yard  of 
the  company  of  a  person  having  business 
with  such  offices  is  not  a  necessary  incident 
of  his  business  with  the  company.  He  is.  at 
best,  but  a  licensee,  towards  whom  the  com- 
pany owes  no  special  duty.    Diebold  v.  Penr.- 

*  Implied  licenses  to  go  upon  railroad  trarlc, 
see  note,  13  L.  R.  A.  634. 


I  i 


266 


LICENSEES,  INJURIES  TO,  2,  3. 


sylvant'a  K.  Co.,  50  N.  J.  L.  478,  12  Cent. 
I\ep.  799.  14  ////.  Rif).  576.—  yuoTEl>  IN 
Woolwine  v.  Clicsapcakc  &  O.  R.  C".,  36 
VV.  Va.  329.  50  Am.  &  Eiif;.  K.  Cas.  37,  15 
S.  C  Ke[).  %\.—Jtine  v.  lioston  tS^  //.  A'. 
Co.,  153  ,IAwi.  70.  26  A'.  A'.  AV/.  238. 

t£.  Fi'rsoiiH  on  |i^rciiiiHUH  cii|;a{;ed  in 
work.  — A  wrrkinari  who  ^'ocs  in  a  railroad 
yanl  for  the  pjrnose  of  doinjj  work  for  the 
c>>in|>any  i^  not  a  mere  licensee  as  regards 
the  .1111  )unt  of  care  that  the  company  owes 
liiin.  Collins  V.  A'eiv  York,  N.  H.  <S-  //.  K. 
Co..  23/.  6-  S.  (N.  y.)  31. 8  A^.  V.  S.  a:  164: 
iijfirnuui  in  112  N.  V.  665,  mem. ,  20  A\  E. 
A'i/>.  413,  mem.,  20  A'.  V.  S.  A'.  977,  mem. — 
Following  Cordcll  v.  New  York  C.  &  H. 
R.  R.  C()..7oN.Y.  119. 

An  employe  of  a  railroad  who  is  eii(;aged 
ill  dcliverint;  a  car  to  another  railroad  cor- 
poraiion  upon  the  latter's  tracks  in  the 
regular  course  of  business  between  the  two 
corporations  is  not  a  mere  licensee.  Tt4r- 
ner  v.  Jioslon  &*  M.  R.  Co.,  158  Mass.  261, 
33  A'.  A".  Kep.  520. 

A  request  to  assist  in  unloading  the  lum- 
ber from  a  car  carries  with  it  the  light  to  be 
at  any  proper  place  to  do  the  work,  whether 
such  place  be  on  or  off  the  car.  Chicago  &* 
I,  Coal  A".  Co.  V.  Ale  Daniel,  134  /«</.  166,  32 
N.  E.  Rep.  728. 

Where  a  person  who  wasshippinga  heifer 
upon  defendant  company's  train,  wilii  the 
consent  of  a  station  master,  assists  to  shut  a 
horsf  l)ox,  and  while  so  doing  is  injured  by 
the  servants  of  the  company,  the  company 
is  liable,  as  he  was  neither  a  trespasser,  nor 
a  volunteer  servant,  hut  a  licensee.  Wright 
V.  London  «5-  A'.  W.  A'.  Co..  33  L.  T.  830, 
L.  A'.  I.  Q.  li.  1).  252,  45  L.  J.  Q.  B.  D. 
570;  affirming  A.  A".  \oQ.  li.  298,  44  A.  /. 
Q.  li.  119,32  A.  T.  599. 

8.  IVmoHH  on  pr«>niiN<>N  by  invitn- 
tloii.  -The  mere  passive  allowance  of  foot- 
men to  travel  along  the  right  of  way  of  a 
railway  company  does  not  impose  upon  the 
comiany  the  duty  to  provide  against  danger 
of  accident  to  which  they  may  thereby  ex- 
pose themselves;  yet  if  the  company, directly 
or  by  implication,  induces  persons  to  enter 
on  and  pass  over  its  rii;ht  of  way,  it  may 
thereby  assume  an  obligation  that  it  is  in  a 
safe  rondition.  Lake  Shore  (5^»  M.  S.  A\  Co. 
V.  liotlemer,  54  Am.  &^  Eng.  A'.  Cas.  177,  i  ,9 
///.  5</).  29  A'.  A".  A'ep.  692  ;  affirming  33  .  //. 
'-'//'•  479- 

A  railroad  company  by  the  formation  of  a 
crossing   may  extend  an  invitation  to  per- 


sons to  use  such  crossing  for  the  purpose  of 
access  to  the  premises  of  others,  though  not 
necessarily  to  any  public  way  beyond.  /Links 
V.  lioston  <S-  A.  A'.  Co.,  35  Am.  &*  Eng.  R. 
Cas.  321,  147  Mass.  495,  7  A'.  Eng.  Rep.  139, 
18  A'.  E.  Rep.  218. 

Where  it  is  shown  that  a  crossing  eighty 
feet  ii>  length  and  twelve  feet  in  width,  ex- 
tending over  six  radroad  tracks,  had  been 
carefully  planked  and  extended  into  the 
premises  of  a  private  tirm,  and  that  it  was 
frequently  traveled  for  the  purpose  of  ob- 
taining access  to  such  premises,  there  is 
sufficient  evidence  to  present  for  the  deter- 
mination of  the  ju.y  the  question  whether 
such  an  inducement  or  invitation  had  !)ccn 
held  out  to  the  public  to  use  the  crossing 
for  any  lawful  purpose  as  a  person  injured 
was  entitled  to  avail  himself  of.  Hanks  v, 
Boston  &*  A.  R.  Co.,  35  Am.  &*  Eng.  R.  Cas. 
321,  147  Mass.  495,  7  A'.  E»ig.  Rep.  139,  iS  -V. 
E.  Rep.  218. 

A  mere  pertnission  or  license  from  a  rail- 
road company  to  persons  to  cross  its  tracks 
is  not  an  invitation.  IVright  v.  Boston  ^ 
A.  R.  Co..  28  Am.  &*  Eng.  K.  Cas.  652,  142 
Mass.  296,  7  A'.  E.  Rep.  866. 

Whether  the  construction  of  a  crossing 
over  a  railroad  is  such  as  of  itself  to  amount 
to  an  invitation,  or  evidence  for  the  jury  of 
an  invitation,  by  the  railroad  company  to 
the  public  to  use  the  same  for  its  conven- 
ience, must  be  determined  by  considering 
whether  the  construction  was  such  as  reason- 
ably to  induce  the  public  to  believe  that  the 
crossing  was  a  public  way.  IVright  v.  Ros- 
ton  &•  A.  R.  Co.,  28  Am.  tS-  Eng.  R.  Cas. 
652,  142  Mass.  296,  7  A',  E.  Rep.  866. 

Plaintiff  was  injured  while  crossing  de- 
fendant's track.  At  the  point  in  question 
a  public  road  came  down  to  the  track  ;  on 
the  further  side  of  the  track  were  chemical 
works  surrounded  by  a  fence,  in  which,  op- 
posite to  the  road,  was  a  gate,  marked, 
"No  admittance."  The  chemical  company 
maintained  by  defendant's  license  a  cross- 
ing between  the  gate  and  the  road  for  the 
convenience  of  its  own  business.  There 
was  ai.so  a  public  way  leading  to  the  chtnii- 
cal  works  at  a  little  distance.  Plaintifl 
found  the  gate  open  and  drove  through  it 
to  reach  the  chemical  works,  and  was  re- 
turning by  tlie  sani>.  way  at  the  time  of  tli'' 
accident.  Jleltl,  that  there  w;i3  no  invitation 
or  license  by  the  defendant  to  piaintitf  to 
use  the  crossing,  and  that  the  defendant 
therefore  owed  plaintiff  no  duty  to  look  out 


LICENSEES,  INJURIES  TO,  4-«. 


267 


for  him,  or  take  precautions  against  his 
presence,  and  that,  as  there  was  no  evidence 
tiiut  the  defendant  was  negligent  after  it 
icncw  that  plaintiH  was  on  the  tracic,  he 
could  not  recover.  Donnelly  v.  Boston  &•  At, 
R.  Co.,  42  Am.  S*  Kn^.  A'.  Cits.  182,  151 
Miiss.  210.  24  N.  E.  Rep.  38. 

4.  visitors.— Pupils    visiting    the 

power  house  of  a  traction  company,  at  the 
request  uf  theirteacher,  and  by  permission  of 
the  president  of  the  company,  merely  for  the 
purpose  of  viewing  the  machinery,  are  there 
as  licensees,  and  the  company  is  not  bound 
to  provide  for  their  safety,  and  is  not  liable 
for  an  injury  to  one  of  the  pupils  who  steps 
into  a  vat  of  hot  water  which  is  open  and 
unprotected.  Benson  v.  ISaltimore  Traction 
Co..  77  '"'/•  535.  26  Atl.  AVp.  973. 

5.  l*erMuiiM  liubitiiHlly  wnlkiiiy^  ou 
or  ucroMM  tracks. — A  license  tu  walk  on  a 
track  cannot  be  established  by  proof  show- 
ing that  the  place  was  remote  from  any 
station,  and  that  persons  lining  near  it  had 
been  in  the  habit  of  walking  on  it ;  that  the 
engineer  had  seen  persons  walking  on  it, 
tiiouKli  not  more  frequently  than  on  other 
(xirtions  of  the  track  similarly  situated  ;  and 
that  no  steps  had  been  taken  to  prevent 
such  persons  from  so  doing.  Missouri  Pac. 
K.  Co.  V.  Brown,  {Te.r.)  iS  S.  11'.  Rep.  670. 
—Follow INC.  Illinois  C.  R.  Co.  7/.  Hammer, 
72  III.  350;  Illinois  C.  R.  Co.  v.  Hether- 
ington,  83  111.  510;  JefTersonville,  M.  &  I.  R. 
Co.  7'.  Goldsmith,  47  Ind.  50;  St.  Louis  A.  & 
T.  K.  Co.  V.  Crosnoe,  72  Tex.  79,  10  S.  W, 
Kep.  342. 

Where  the  pedestrians  use  a  railroad 
track  as  a  thoroughfare,  despite  |)osted 
notices  and  other  warnings  forbidding  it,  a 
license  for  such  use  is  not  established.  Hyde 
v.  Missouri  J'ac.  R.  Co.,  54  Am.  &*  Et^.  R. 
Cos.  157,  no  Mo.  272,  19  S.  IV.  Rep. 
4«.3. 

Wiicre  notices  have  been  put  up  by  a  rail- 
way company  forbidding  persons  to  cross 
the  line  at  a  particular  point,  but  these 
notices  have  been  continually  disregarded 
by  the  public,  and  the  company's  servonts 
have  not  interfered  to  enforce  their  observ- 
ance, the  company  cannot,  in  the  case  of  an 
injury  occurring  to  any  one  crossing  the  line 
at  that  |)oint,  set  up  Mie  existence  of  the 
notices  by  way  of  answer  to  an  action  for 
damages  for  such  injury.  Slattery  v.  Dublin, 
W.  S^  ir.  R.  Co.,  L.  R.  3  App.  t'tft.  115s.  3 
A>.  5-  C.  r.  Cos.  xiii. 


O.  DiHtiiiKiiiHiied  f^om  tresposserH.* 

.—Where  a  railroad  company,  either  ex- 
pressly or  by  clear  implication,  licenses  the 
public  to  use  its  track  in  a  city,  town,  or  vil- 
lage, it  cannot  treat  one  who  avails  himself 
of  the  license  as  a  trespasser,  /'aimer  v. 
Chicago,  St.  L.  Sf  P.  R.  Co.,  31  Am.  &* 
Eng.  R,  Cas.  364,  112  Ind.  250,  11  West. 
Rep.  676,  14  A^.  E.  Rep.  70.  Louisville,  A'. 
A.  &*  C.  R.  Co.  v.  Phillips.  31  Am.  *-  En^;. 
R.  Cas.  432,  112  Ind.  59,  13  A^.  E.  Rep.  132.— 
DiSTiNGUi.sHiNU  Barker  v.  Hudson  River 
R.  Co.,  4  Daly  (N.  Y.)  274  ;  Zimmerman  v. 
Hannibal  &  St.  J.  R.  Co.,  71  Mo.  476;  Wil- 
brand  v.  Eighth  Ave.  R.  Co.,  3  Rosw.  (N.  Y.) 
314 ;  Jersey  City  &  B.  R.  Co.  v.  Jersey  City 
&  H.  Horse  R.Co.,20  N.  J.  Eq.  61  ;  Adolph 
V.  Central  Park,  N.  &  E.  R.  R.  Co.,  65  N. 
Y.  554,  mem.;  Chicago  West  Divis"on  R. 
Co.  V.  Bert,  69  111.  388.  Quoting  Smedis  v. 
Brooklyn  &  R.  B.  R.  Co..  88  N.  Y.  13;  Kan- 
sas Pac.  R.  Co.  7'.  Pointer,  9  Kan.  620. 

Where  a  company,  through  its  employes 
and  officers,  lias  knowledge  of  the  constant 
use  of  a  footpath  across  its  track,  makes  no 
objections  thereto,  and  directs  no  obstruc- 
tions to  such  use,  it  will  be  presumed  to  as- 
sent to  it,  thus  giving  all  who  use  .such 
crossing  a  license  thi-refor.  A  person  who 
is  injured  while  crossing  the  track  at  such 
place  is  ni.  r^  >..cspasser  upon  the  railroad, 
but  is  ct:tit!?t.i  cu  all  the  rights  of  one  right- 
fully upon  it,  and  may  recover  for  injuries 
resulting  from  the  company's  want  of  care. 
Clampit  V.  Chicago,  St.  P.  &*  K.  C.  R.  Co.. 
^g  Am.  <S-  Eng.  R.  Cas.  468,  84  liuva  71, 
50  N.  W.  R.p.  673.  Philadelphia  &*  R.  R. 
Co.  V.  Proutman,  (Pa.)  6  Am.  &*  Eiig,  R.  Cas. 
117,  II  W.  A\  C.  453.— FoLLowiNc;  Penn- 
sylvania R.  Co.  V.  Lewis,  79  Pa.  St.  33. 

A  company,  by  acquiescing  for  a  long 
time  in  laborers  crossing  its  yards  in  going 
to  and  returning  from  their  work,  thereby 
licenses  them  to  do  so,  and  imposes  upon 
itself  a  precautionary  duty  as  to  such  |)cr- 
sons,  as  they  are  not  to  be  regarded  as  tres- 
passers;  but  they  are  not  absolved  from  all 
care  for  their  own  safety.  Illinois  C.  R.  Co. 
,/.  DicH\  yi  Ay.  434,  15  .V.  .'/'.  Rep.  665. 

A  contractor  to  fence  the  right  of  way 
w  IS  authorized  to  use  a  hand-car  in  trans- 
porting his  employes  to  .md  frcm  their 
labor.     In  going  to  labor  the  hand-car  col- 

*  Persons  on  the  twck  by  license  of  company, 
see  notes,  34  Am.  &  Enu.  R.  Cas.  20 ;  15  /</.  438, 
44f>- 


\i 


.\ 


2C6 


LICENSEES,  INJURIES   TO,  7-0. 


lidud  wiih  an  ocLa^iiunul  iruiii,  uiid  in  the 
collision  the  plaintiti,  une  uf  tlic  fence  gang, 
wus  injured.  In  a  suit  for  damages  by  liim 
against  the  railway  cunipany  it  was  not 
pro|)er  to  instruct  the  jury  that  the  plaititifT 
was  required  to  exercise  "the  highesv  de- 
gree of  care."  The  plaintiff  was  not  a  tres- 
passer, nor  was  he  on  the  track  by  mere 
curtesy  or  permission.  (Ordinary  care  was 
all  that  was  imposed  upon  him  under  the 
circumstances.  Garteiser  v.  Galvvstoti,  H. 
&*  S.  A.  A'.  Co.,  2  Tex.  Civ.  A  pp.  230,  21  S, 
W.  Kep.  631, 

II.  COMPANY'S  DUTY  TO  UCEN8EE8.* 

I.  In  General. 

7.  Duty  to  u»«  rjire.— A  licensee  as- 
sumes the  risks  incident  to  the  business  of 
the  company  whose  way  he  uses;  but  if  in- 
jury be  caused  by  negligence  of  the  com- 
pany, he  may  recover  therefor.  Davis  v. 
Chicago  &*  N.  W.  R.  Co.,  15  Am.  &*  Eng. 
A'.  Cts.  424.  58  IVis.  646.  17  ;V.  IV.  Kep.  406. 
46  Am.  Rep.  667.— QUOTKD  IN  Hogan  v. 
Chicago.  M.  &  St.  P.  R.  Co.,  1 5  Am.  &  Eng. 
R.  Cas.  439,  59  Wis.  139. 

It  cannot  be  said  that  railroad  companies 
owe  no  duty  of  care  to  those  who  are  right- 
fully on  their  right  of  way,  even  though  the 
general  public  be  excluded  therefrom.  Chi- 
cago &»  N.  IV,  a.  Co.  V.  Dunleavy,  39  Am. 
6-  Eng.  R.  Cas.  381,  129  ///.  132,  22  A'.  E. 
Rep.  1 5  ;  affirming  27  ///.  App.  438. 

Where  a  person  goes  upon  a  siding  to  as- 
sist in  moving  a  car  up  to  an  elevator, 
where  it  is  to  be  unloaded,  it  cannot  be  said 
that  he  was  at  the  place  merely  by  the 
license  of  the  company,  but  was  rightfully 
there  and  doing  a  lawful  act;  but  even  if 
he  were  there  merely  by  license,  the  com- 
pany would  be  liable  if  it  injured  him  by  a 
careless  or  liecdless  act.  Conlan  v.  Ne^v 
York  C.  &-  //.  R.  R.  Co..  74  //««  1 1 5,  26  A'. 
y..Si,pp.6s9,s6N.  Y.  S.  R.  316.  — DisTlN- 
cuisiiiNU  Nicholson  v.  Erie  R.  Co..  41  N. 
Y.  525. 

Where  the  rules  of  a  company  permit  a 
brakeman  to  have  charge  of  a  train,  hisnei;- 
ligeiice  in  injuring  a  person  who  is  unload- 
ing a  car  on  a  siding  may  be  imputed  to  the 

*Uuty  of  company  to  persons  on  Its  trains 
who  arc  not  pa-sscniff  is  or  omplnyCs,  see  note, 
23  Am,  &  Knc.  R.  Cas.  467. 

Duty  of  railroad  company  towards  persons 
with  whom  it  has  no  contract  relations,  but  who 
are  lawfully  nn  Its  cars  or  premises,  se^  exhaust- 
ive note,  ()0  Am.  Dkc.  ss. 


company  so  as  to  make  it  liable.  Conlan  v. 
AVw  York  C.  &*  If.  W  R.  Co..  74  //un  115. 
26  A'.  I'.  Supp.  659,  56  A'.  Y.  S.  R.  316. 

8.  Decree  of  care. —  A  railway  com- 
pany is  chargeable  with  the  exercise  of  at 
least  ordinary  care  towards  all  persons  who 
may  lawfully  be  upon  its  premises,  transact- 
ing business  with  it.  Spotts  v.  ll'ahtisli 
ll'i stern  R.  Co.,  111  Mo.  380,  20  S.  IV.  Rep. 
190. 

Ill  passing  through  cities  and  towns 
greater  care  must  be  exercised  than  on  that 
portion  of  the  road  where  human  beings 
have  no  right  nor  license  to  be,  especially  at 
night.  Louisville  iS-  A'.  A'.  Co.  v.  Ilo-MarJ, 
19  .-//«.  &*  Eng.  R.  Cas.  98,  82  A'y.  212. 

There  is  a  clear  distinction  between  the 
care  which  a  railroad  company  is  bound  to 
exercise  towards  mere  trespassers  and  to- 
wards those  who  are  on  its  right  of  way  by 
the  license  of  the  company,  and  in  case  of  a 
long  and  constant  user  of  such  way  the  com- 
pany and  its  servants  are  charged  with  no- 
tice of  it,  and  cSnnot  neglect  precautions  to 
prevent  danger  to  persons  traveling  thereon. 
Wilful  injury  is  not  the  only  ground  of 
liability  in  such  a  case.  Davis  v.  Chicago 
(^  A'.  W.  R.  Co.,  15  Am.  &*  Etig.  R.  Cas. 
424,  58  IVis.  646,  17  A'.  IV.  Kep.  406,  46 
Am.  Rep.  667. 

U.  PertioiiH  ciiffoi^ed  in  loudiiit;  or 
uuloadiiii;  carM.*— Wherea  stro  ig,  ca,  n- 
ble  man  drives  a  team  alongside  of  a  car 
on  a  side  track,  for  the  purpose  of  unload- 
ing goods  from  the  car  and  taking  them 
away,  knowing  one  of  his  horses  to  be  easily 
frightened,  no  additional  duty  is  thereby  im- 
posed upon  the  company  to  exercise  greater 
care  in  running  engines  or  trains  pas',  the 
place  to  prevent  frightening  the  horse. 
Chicago  Sr-  N.  W.  R.  Co.  v.  Clark.  2  III. 
App.  116. 

If  an  injury  is  occasioned  by  the  negli- 
gence of  another  railroad  company,  whose 
car,  for  the  purpose  of  being  loaded  by  tlie 
plaintifT,  has  been  placed  upon  a  side  track 
of  the  defendants  which  is  in  oiistant  use 
by  other  roads,  such  other  company  is 
bound  to  use  reasonable  care  to  prevent  a 
collision  ;  and  if  it  fails  to  do  so,  and  the 
plaintiff  receives  an  injury  from  a  collision 
while  engaged  in  loading  the  car,  he  cannot 
recover  against    the  company  whose  cars 


•  InjurleH  to    persons  lordlnij   or  nnlo.n.iin(f 
cars,  see  note,  iq  Am.  &  EN<i.  R.Cas.  uo. 


LICENSEES,  INJURIES   TO,  10. 


269 


caused  the  collision.  Fletcher  v,  Boston  &* 
M.  A'.  Co.,  I  .UUn  {Mass.)  9, 

Wliilu  a  railroad  cuinpany  may  not  be 
li  und  to  ring  a  hell  to  warn  a  person  wlio 
is  unloading  a  car  on  a  siding  of  the  ap- 
proach iii  a  train  on  the  same  track,  still  if 
t!u-  jary  liiid  that  the  company  did  nut  give 
l>n>|>t  r  notice,  they  may  take  into  consideru- 
1 11)11  liic  fact  that  no  signal  was  given.  Cou- 
t,in  V.  .ViW  York  C.&-  H.  A\  A'.  Co.,74  Hun 
115.  26  .\'.   V.  Supp.  659,  56  A'.  K.  .V.  A".  316. 

10.  SiHTiiiilM  —  Spocd.  —  While  the 
staiuio  may  not  in  terms  require  a  signal 
uiiil'  r  certain  circumstances,  the  comuK^n 
law  rq  res,  at  all  times,  the  exercise  of 
urdiii.iry  prudence  and  care  in  the  avoid- 
ance uf  injury  to  others;  and  as  the  instru- 
mentalities u.sed  are  mure  d.ingerous,  a 
irr<>  Iter  degree  of  caution  is  imposed  and 
loj .  !ed.  Barton  v.  Neiu  York  C.  «>»  //. 
/  .  .  Co.,  I  T.  «S»  C.  (N.  )'.)  297  ;  ajfirmed  in 
56  X.  Y.  660,  mem. 

Although  the  company  is  not  absolutely 
bound  to  ring  a  bell  or  blow  a  whistle  as 
the  train  approaches  the  crossing,  it  is 
bound  to  give  some  notice  and  warning ; 
and  the  fact  that  the  bell  was  rung  does  not 
establish,  as  matter  of  law,  that  the  com- 
pany used  reasonable  care.  As  to  whether 
any  other  precautions  should  have  been 
taken,  and  as  to  what  is  suilicient  in  such  a 
case,  are  questions  for  the  jury.  Swift  v. 
Slalfn  Island  A'.  T,  R.  Co.,  4;  Am.  «3-  Eng. 
A'.  Cis.  180,  123  A^.  v.  645,  3  Silv.  App. 
184.  25  A'.  E.  K.p.  yi%,  33  A'.  Y.  S.  K.  604; 
iifiimiftg  52  Hun  614,  24  A'.  Y.  S.  A'.  359,  1 
.<//v.  .Slip.  Ct.  375,  5  A'.  Y.  Supp.  316.  — Re- 
viKWHt  IN  Friess  v.  New  York  C.  &  H.  R. 
R.  Co..  51  N.  Y.  S.  R.  391. 

Though  a  company  has  a  right  to  run  its 
trains  at  any  speed  it  may  choose,  when 
not  prohibited  so  to  do,  yet  if  the  rules 
of  the  company  require  trains  to  be  run 
slowly  «)n  certain  parts  of  the  track,  and 
iliose  rul(!s  have  usually  been  complied  with. 
the  [)ul)lic  have  a  right  to  conclude  that 
tlicy  will  be  observed  on  anv  given  occasi  )n, 
and  to  act  accordingly.  International  &* 
t/'.  A".  A'.  Co.  V.  iiray,  27  Am.  6-  Eng.  A'.  Cas. 
3i«.  65  Tex.  32.* 

Tlie  employes  operating  a  train  are 
chargeable  with  notice  that  reliance  will  be 
pLiccd  upon  their  obeying  the  statute  laws 
and  rules  of  the  company,  and  the  latter  is 
lialile  for  any  failure  to  do  so  from  which 
injury  to  pers.in  or  property  results.  So 
ie/il,  where  pic  ntifT,  riding  on  a  hand-car  by 


permission  of  the  company,  was  injured  in  a 
collision  with  a  train,  behind  time  and  run- 
ning at  an  unusual  speed,  whicli  failed  to 
give  proper  signals.  International  6-  (/. 
JV.  A'.  Co.  V.  (Sray,  27  Am.  &*  Etig.  R.  Cas. 
318,65  /'t.r.  32.— Foi.i.owKi)  IN  Garteiser 
V.  Galveston,  \\.  &  S.  A.  R.  Co.,  2  Tex. 
Civ.  App.  230. 

A  mere  licensee  upon  a  trar!.  '.vas  injured 
by  the  backing  of  a  trr>.ir.  which  hud  been 
standing  thereon,  caused  by  the  coupling  of 
an  engine  to  such  t^ain.  fiis  presence  was 
unknown  to,  and  unexpected  by,  the  ser- 
vants of  the  company  operating  the  train, 
and  could  not  reasonably  have  been  antici- 
pated by  them.  The  usual  signals  of  ring- 
ing the  bell  and  sounding  the  whistle  of 
the  locomotive  were  given,  and  the  train 
was  being  operated  and  the  business  con- 
ducted, when  the  accident  hap|>cncd,  in  the 
usual  manner.  //«•/</.  that  the  requirements 
of  ordinary  care  and  diligence  were  fully 
con.  tlied  with,  and  that  the  company  was 
noi  required  to  give  any  other  notice,  signal, 
or  warning  of  the  movement  of  the  train  or 
coupling  of  the  cars.  Hogan  v.  Cliirago,  Af. 
<3-  St.  r.  R.  Co.,  15  Am.  &*  Ent;.  R.  Cas. 
439.  59  "  ".  139,  17  A'.  W.  Rep.  632. 

S.  was  walking  on  his  regular  ro'ite  from 
his  work  at  the  Ophir  mine,  along  the  track 
of  the  V.  &  T.  R.  R.  Co.,  on  a  public  street 
much  frequented  by  foot  passengers  in 
Virgiria  City;  there  was  no  sidewalk  or 
passi.geway  provided  along  the  street;  tli^jre 
was  I  heavy  snowstorm  with  such  high 
winds  as  to  prevent  his  seeing  more  than 
ten  feet  aheaii  of  him ;  there  was  snow  on 
the  rails,  which  deadened  the  sound  of  the 
engine  or  train  on  the  track ;  he  was  at  a 
phice  where  it  was  the  usual  custom  of  the 
railroad  company  when  moving  its  trains  or 
locomotives  to  give  signals,  either  by  the 
whistle  of  the  locomotive,  or  the  ringing  of 
the  bell ;  he  was  looking  ahead  whenever 
he  could,  and  was  listening  for  the  sound  of 
the  whistle  or  bell,  which  he  couid  have 
heard  if  such  signals  hud  been  given  ;  ntuic 
was  given  ;  he  was,  without  any  warning, 
knocked  down  by  a  locomotive  or  tender 
backing  along  the  track  near  a  regular 
crossing.  //('/</.  that  upon  this  statement 
of  plaintitl's  case  the  court  did  not  err  in 
refusing  to  grant  a  nonsuit.  Solen  v.  Vir- 
ginia «J-  r.  R.  Co..  13  .Ver.  lof.  -DisTiN- 
OUl.SHIKO  Illinois  C.  R.  Co.  7'.  Godfrey,  71 
III.  500;  Hickey  v.  Boston  &  L.  R.  Co  ,  i.^ 
Allen  (Mass.)  429;  Chicago  &  R.  I.  R.  Co. 


m 


^j-i 


11 


m 


■H 


270 


LICENSEES,  INJURIES   TO,  11-13. 


V.  Still,  19  III.  508;  Dascomb  v.  BufTalo&  S. 
L.  R.  Co.,  27  Barb.  (N.  Y.)  321  ;  North  Penn- 
sylvania K.  Co.  V.  Heileman,  49  Pa.  St.  60; 
Kunyon  v.  Central  R.  Co.,  25  N.  J.  L.  556; 
Steves?'.  Oswego  &  S.  R.  Co..  18  N.  Y.  422; 
Wilco*  "  Rome,  W.  &  O.  R.  Co.,  39  N.  Y. 
358;  Havens  v.  Kiie  R.  Co.,  41  N.  Y.  296; 
Wilds  V.  Hudson  Kiver  K.  Co.,  29  N.Y.  315; 
Toledo  &  W.  R.  Co.  v.  Goddard,  25  hid. 
185. 

1 1.  Duty  to  keep  preiiiiHes  in  safe 
coiKlitioii.'*  -The  owner  of  premises  is 
under  no  legal  duty  to  keep  tlicni  in  good 
repair  for  the  accommodation  of  persons 
who  ^o  upon  them  for  their  own  conven- 
ience merely ;  and  where  a  person  has  a 
license  to  go  upon  the  grounds,  he  takes 
them  as  he  finds  them,  and  accepts  what- 
ever perils  he  incurs  in  the  useort  ijoyment 
of  such  license.  Indiana,  B,  &*  W.  A'.  Co. 
V.  liarnhart,  lis  /«'/.  399,  16  A'.  E.  Rep. 
121,  13  West.  Rep.  425.  Atchison.  T.  &*  S. 
F,  R.  Co.  V.  Parsons,  42  ///.  A  pp.  93. 

Unless  it  appear  tinil  such  owner  was 
aware  of  its  dangerous  or  defective  condi- 
tion, or  might  have  known  thereof  by  the 
exercise  of  due  care,  and  that  the  sami  vas 
unknown  to  the  person  injured.  Eisenbtrg 
V.  Missouri  J'ac.  R.  Co.,  33  Mo.  App.  85.— 
FoLLOWiN(i  Goldstein  v.  Chicago,  M.  &  St. 
P.  R.  Co.,  46  Wis.  406;  Durkin  v.  Troy,  61 
liurb.  (N.  Y.)  437.— Distinguished  in 
Skottowe  V.  Oregon  S.  L.  &  U.N.  R.  Co., 
22  Orcg.  430. 

But  when  the  owner  by  enticement,  al- 
lurement, or  inducement,  express  or  implied, 
cau.')«;s  another  to  come  upon  his  lands,  he 
then  assumes  the  obligation  of  providing 
for  the  safety  and  protection  of  the  person 
so  coming,  and  for  a  breach  of  this  duty  is 
liable  for  any  injury  which  may  result  from 
coming  upon  his  lands  ;  but  the  enticement, 
allurement,  or  inducement  must  be  equiva- 
lent to  an  express  or  implied  invitation. 
Mere  acquiescence  in  the  use  of  the  land  is 
not  sufficient ;  but  such  invitation  may  be 
implied.  Indiana,  B.  &>  W.  R.  Co.  v. 
Barnhart,  115  Ind.  399,  13  West.  Rep.  425, 
16  A'.  E.  Rep.  121.  Nichols  v.  Washington, 
O.  &•  W.  K.  Co.,  3a  Am.  &»  Er^.  R.  Cas.  27, 


*  Liability  of  owner  of  dangerous  premiiet  for 
Injury  (n  one  lawfully  thereon,  tee  note,  36  Am. 
Rki*.  S63. 

Iniuryto  person  going  upon  premises  by  in- 
vitation, owing  to  their  defective  condition,  see 
note,  I  Am.  A;  Eno.  R.  Cas.  78. 


83  Va.  99,  5  Am.  St.  Rep.  257,  5  S.  E.  Rep. 

17'. 

Where  a  railroad  company  builds  houses 
for  its  workmen  so  that  there  is  no  access 
to  or  from  them  except  across  the  coni;)a- 
ny's  track,  a  workman  who  is  boar(lin<; 
with  the  occupant  of  one  of  the  houses  may 
recover  for  an  injury  received  while  trossinj; 
the  track,  caused  by  the  negligent  maimer 
of  running  a  train.  McDcrmott  v.  New )  'ork 
C.  <S-  //.  A".  R.  Co.,  28  //«/.  (A^.  Y.)  3:5: 
affirmed  in  97  A'.  Y.  654.  mem. —  Rkvikw- 
ING  Driscoll  V.  Newark  &  R.  L.  &  C.  Co., 
37  N.  Y.  637. 

It  is  the  duty  of  the  company  to  keep  its 
premises  in  safe  condition  for  the  use  of  a 
friend  of  its  passenger  aiding  him  to  enter 
or  leave  its  cars.  Texas  «S-  /'.  A'.  Co.  v. 
Rest,  66  Tex.  116,  18  S.  W.  Rep.  224.  -Vox.- 
U)"'iN(;  Hamilton  v.  Tex.  4  P.  K.  Co.,64 
Tex.  251. 

But  this  duiy  does  not  extend  to  those  at 
the  station  at  an  unusual  hour  for  the  pur- 
pose of  bidding  farewell  to  a  person  about 
to  leave  on  a  freight  train  in  charge  of  live 
stock,  and  who  is  a  passenger  only  in  a 
limited  and  n-stricted  sense.  I  ini>d  v.  Chi- 
cago, ,1/.  <S-  St.  P.  R.  Co.,  58  ^, ///.  &*  Eiig- 
R.  Cas.  18,  84  ir-s.   105,  54  A'.   11^.  Rep.  24. 

12. tVeu  fVoiii  pitN  and  cxnivn- 

tloiiM.— Where  one  merely  permits  others, 
for  their  own  acconunodaticjn,  to  pass  over 
his  lands,  he  is  under  no  I  gal  duty  to  keep 
them  free  from  pitfalls  or  obstruct  ions  which 
may  result  in  injury.  A/iter.  if  he  invite  or 
induce  such  passage.  EvansviHe  »S-  T.  //. 
A'.  Co.  V.  Griffin,  100  Ind.  221,  50  Am.  Rep. 

783. 

M.  while  crossing  the  private  grounds  of 
a  railroad  company  fell  into  an  unprotected 
pit  between  the  tracks,  and  was  injured,  lie 
had  often  crossed  there  before,  and  so  iiad 
other  persons.  There  was,  at  most,  only  a 
license  by  the  company  to  <:ros8  and  no  in- 
vitation. Held,  that  defendant  was  not 
liable  for  the  injury.  A/organ  v.  Pemisv/- 
vania  R.  Co.,  \^  Ithtchf.  (U.  S.)  239.7  /•<</. 
Rep.  78. 

13.  illllHtrntionM.— The  owner  or 

occupier  of  a  dock  is  I  iable/or  damages  to  a 
person  who  makes  use  of  it  by  his  invita- 
tion, express  or  implied,  for  an  injiiiy 
caused  by  any  defect  or  unsafe  condition  of 
the  dock  which  he  negligently  causes  or 
permits  to  exist,  provided,  of  course,  tlie 
person  himself  exercises  due  care.  /'<■««• 
syhania  R.  Co.  v.  Atha,  22  Fed.  Rep.  920. 


LICENSEES,  INJURIES   TO,  14-10. 


271 


A  person  who,  without  invitation,  visits  a 
telegraph  otiice  merely  for  the  purpose  of 
payiM{,'u  friendly  call  tu  the  operator,  which 
otiice  is  owned  and  occupied  by  a  railioad 
company  for  its  own  purposes  and  conven- 
ience, and  which  is  located  on  its  land  and 
near  its  track,  from  which  occasional  mes- 
sages are  sent  and  received  for  outside  par- 
ties for  pay,  he  visits  said  office  as  a  mere 
voluntary  licensee,  subject  to  the  concomi- 
tant risks  and  perils,  and  no  duty  is  imposed 
u|M)n  tlie  owner  or  occupant  tu  keep  its 
premises  in  safe  and  suitable  condition  for 
such  visitor.!,  and  the  owner  is  only  liable 
for  such  wiiful  ur  wanton  injury  as  may  be 
done  such  licensee  by  the  ^russ  negligence 
of  its  agents  or  employes.  ll'oo/wiiie  v. 
tlustipeakf  ii"  O.  A'.  Co. ,  50  .Im,  tS-  A'/jf ,  A'. 
Cns.  37.  36  IK  Frt.  329.  '5  •!>•  ^--  AV/.  81. 
— (JuoTiNti  Sweeny  ?'.  Old  Colony  &  N. 
K.  Co..  10  Allen  (Mass.)  368;  Gillis  v.  Penn- 
s\lv:»iia  K.  Co..  59  Pa.  St.  129.  Kkvikwing 
Dieljold  ;'.  Pennsylvania  K.  Co.,  50  N.  J.  L. 
478 ;  Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v.  Bing- 
ham, 29  Ohio  St.  364  ;  Sutton  t.  New  York 
C&n.  K.  R.  Co..  66N.  Y.  243. 

A  railroad  company  has  a  platform  and 
mail  crane  near  a  {)ost-()f)ice  at  whic'.i  the 
mail  train  docs  not  stop,  but  the  postal 
ti':rk  from  the  mail  car  with  a  "catcher" 
tul<es  in  from  the  crane  the  mail  pouch  sus- 
pended thereon,  without  the  train  slacking 
s[)eed.  A  (lerson  who  stations  himself  on 
the  company's  land,  near  the  mail  crane,  for 
the  purpose  of  witnessing  the  catch,  or  for 
some  other  purpose  of  like  kind,  as  a  mere 
voluntary  licensee,  is  subject  to  the  concom- 
itant risks  and  danger  of  injury  thus  as- 
sumeri,  and  the  company  does  not  owe  him 
the  duty  of  keeping  the  mail  crane  in  suit- 
able and  safe  condition.  The  railroad  com- 
pany is  only  liable  for  surh  wanton  injury  as 
may  be  done  to  such  licensee  by  the  gross 
neglif>cnce  of  the  company,  its  agents  and 
servants.     Polini^  v.  Ohio  Kiver  A'.  Co.,  38 

ir.  r.i. 645,  i«  .v./;.  av/».  782. 

14.  AHHiiiiipfioii  of  rinkH  by  liroii- 

»ep.— Where  a  person  has  a  license  to  go 
U()on  tlic  grounds  or  the  inclosure  of  an- 
other, or  uses  such  grounds  with  the  mere 
acquiescence  of  the  owner,  he  takes  the 
premises  as  he  finds  them,  and  accepts  what- 
ever perils  he  thereby  incurs.  Imiiana,  li. 
5-  IP.  A',  Co.  V.  Ihirnhart,  115  Ind.  399,  13 
Wat.  Rtp.  425,  16  A'.  E.  Rep.  121.— 
QuoTKi)  IN  Stewart  v.  Cincinnati,  W,  &  M. 
H.  Co..  89  Mich.  315. 


Where  an  individual  is  permitted  to  use 
a  track  for  the  purpose  of  foot  passage,  he 
must  be  supposed  to  have  exercised  the 
privilege  with  full  knowledge  of  the  ordi- 
nary use  of  the  track  by  the  company,  ano 
the  ordinary  risks  attendant  upon  its  use  by 
foot  passengers ;  and  where  such  person 
sues  for  an  injury,  it  is  error  to  refuse  to  in- 
struct the  jury  that  the  plaintiff  assumed  the 
risk  of  being  injured  by  the  ordinary  opera- 
tion of  trains.      Williami  v.  Delaware,  L. 

&*  IV.  a.  Co.,  18  A'.  K.  s.  a:  857, 2  ,v.  v. 

•!»'«//•  435- 

la.  PurMoiiM  on  traiiiH.* — A  company 
is  not  bound  to  hold  a  train  for  one  who  has 
not  put  himself  in  the  relation  of  a  passen- 
ger, and  is  not  liable  to  him  for  an  injury 
occurring  while  attempting  to  get  on  the 
train  after  it  has  started.  SpannagU  v. 
Ckkafio  »S-»  A.  A'.  Co.,  31  ///.  /1pp.  460. 

Where  a  newsboy  has  a  license  to  pass  on 
and  off  street-cars  merely  for  the  purpose  of 
selling  his  papers,  the  company  is  not  liable 
for  an  injury  received  by  the  driver  permit- 
ring  him  to  get  off  from  the  front  platform 
without  checking  the  speed  of  the  car. 
Fleming  v.  Brooklyn  City  A'.  Co.,  I  Add,  N. 
Cas.  (iV.  P.)  433.— Applied  in  Buckley  v. 
Hew  York  &  H.  R.  Co.,  11  J.  &  S.  (N.  V.) 
187;  Finley  V.  Hudson  Elec.  R.  Co.,  46  N. 
Y.  S.  R.  202. 

Even  if  a  party  is  wrongfully  on  an  en- 
gine, and  is  permitted  and  invited  to  remain 
there,  this  will  not  excuse  the  want  of  or- 
dinary care  to  prevent  injury  to  him.  /.<i/v 
Sliore  »>•  M.  S.  A'.  Co.  v.  Jirown,  31  Am.  &' 
Ettg.  R.  Cas.  61,  123  ///.  162,  14  A'.  E,  Rep. 
197. 

One  going  on  a  train  to  collect  change 
which  the  conductor  owed  him  out  of  a  bill 
given  for  his  fare,  he  having  alighted  at  his 
station,  but  again  re-entered  cars,  must  use 
pro|)crcare  in  getting  off  the  train,  as  he  is 
not  entitled  to  the  care  required  towards 
passengers.  Pittshnrgh,  C.  &*  iV.  /..  R.  Co. 
V.  A'roMse,  30  OAio  iV.  222,  1$  Am.  Ry. 
Rep.  298. 

2.  Persons  Walking  on  or  Crossitig  Track. 

1«.  Geiiernlly.t  —  A  railroad  con- 
structed sidings  and  a  canal  on  a  kirge  lot. 


&l  . 


*  Injuries  to  personn  ussl.ttiiiK  pasaengers  to 
board  cars,  sec  note,  41  Am.  it  Enc.  R.  Cas  i(>S. 
Sec  also  Cakkiaiik  of  Passknc.kks,  M1M»  I . 

f  Duty  of  company  to  trespassers  and  li- 
censees on  track,  see  31  Am.  «  Enu.  R.  Cas. 
373.  atstr. 


LICENSEES,  INJURIES   TO,  17-1». 


and  left  it  unfenccd,  for  tlie  coiivcTiicncc  of 
persons  in  loading  and  unloading  lumber. 
The  public  also  used  the  lot  in  passing 
from  one  part  of  the  city  to  another. 
Htld,  that  the  permission  thus  to  use  the 
lot  bound  the  company  so  to  use  the  sidings 
as  not  to  endanger  life;  hence  it  was  neg- 
ligence to  detach  cars  and  send  them  unat- 
tended down  a  grade,  around  a  curve,  over 
siiid  lot.  Kay  v.  Pennsylvania  li.  Clo.,  65  Pa. 
Si.  269.— DlsTlN(;i;isiilN(;  Philadelphia  & 
U.  R.Co.  V.  Hummcll,  44  Pa.  St.  375;  Gills 
V.  Pennsylvania  R.  Co.,  59  Pa.  St.  129. 

The  approach  to  a  station  of  the  Grand 
Trunk  railway  fron>  the  highway  was  by  a 
pla^iked  walk  crossing  several  tracks,  and  a 
train  stopping  at  the  station  sometimes 
overlapped  this  walk,  making  it  necessary 
to  pass  around  the  rear  car  to  reach  the 
[ilatform.  J.,  intending  to  take  a  train  at 
this  station  before  daylight,  went  along  the 
walk  ns  his  train  was  coining  in,  and  seeing, 
apparently,  that  it  w(,  :!:!  overlap,  started  to 
go  around  the  rear,  when  he  was  struck  by 
,>  shunting  engine  and  killed.  It  was  the 
d  ity  of  this  shunting  engine  to  assist  in 
moving  the  train  on  a  ferry,  and  it  came 
down  the  adjoining  track  for  that  purpose 
before  the  train  had  nlupped.  Its  head- 
I  .:iit  was  burning  brightly,  and  the  bell  was 
kept  ringing.  There  was  room  between  the 
two  tracks  for  a  person  to  stand  in  safety. 
Ill  an  action  by  the  widow  of  J.  against  the 
company— //»•///,  that  the  company  had  neg- 
lected no  duty  which  it  owed  to  the  de- 
ceased as  one  of  the  public,  and  there  could 
be  no  recovery.  Jones  v.  Grand  Trunk  A'. 
Co.,  18  ('an..Su/>.  CI.  696  ;  affirming  16  Onl. 
App.  37. 

Held,  per  Strong  and  Patterson,  J  J.,  that 
while  the  public  was  invited  to  use  the 
))l. Hiked  walk  to  reach  the  station,  and  also 
to  use  the  company's  premises,  when  neces- 
sarv.  to  pass  around  a  train  co  sring  the 
walk,  there  was  no  implied  guaranty  that 
the  trafBc  of  the  road  should  not  prorecrl 
in  the  ordinarv  way,  and  tlie  company  was 
under  no  obligation  to  provide  iipecial 
safeguards  for  persons  attempting  to  pass 
around  a  train  in  motion.  Jones  v.  Grand 
Trunk  A'.  tV'.,  iK  Can.  Sup.  CI.  6«>6. 

1 7.  WiM'n*  |M>rMoiiH  Imhitiiiilly 
t-roNN    tnwk.*  — The    company    cannot, 


*  When  licrnw  to  cross  track  imposeiHiUy  on 
company,  ace  note,  14  Am.  ti  En<s,  R.  Cas. 
681. 


because  a  way  is  not  a  public  crossing,  neg- 
ligently and  recklessly  run  its  cars  over 
persons  who  are  in  the  habit  of  using  it  as 
a  crossing.  Gurley  v.  Missouri  Pac.  R,  Co., 
104  Mo.  211,  16  .S".  W.  Kep,  II. 

18.    without   objuvtioii   froiii 

coiiipuiiy. — If  persons  are  accustomed 
to  cross  a  switch  track  in  a  railroad  yard 
without  objection  from  the  company,  the 
company  must  use  reasonable  diligence  to 
prevent  accidents  to  persons  crossing,  and 
will  be  liable  for  injuries  to  a  person  cross- 
ing the  track  caused  by  sending  cars  .swiftly 
along  it  without  any  one  at  the  brake.  SI, 
Louis,  A.  &-  T,  A'.  Co.  v.  Crosnoe,  37  Am.  &* 
Eng.  A'.  Cas,  313,  72  Te.v.  79,  10  S.  II'.  Kep. 
342.— yLoriNti  Byrne  v.  New  York  C.  A 
H.  K.  K.  Co.,  104  N.  Y.  362,  10  N.  E.  Rep. 
539;  Louisville  &  N.  R.  Co.  v.  Schuster, 
(Ky.)  7  S.  W.  Rep.  875. 

Where  stairs  were  constructed  down  an 
embankment  or  blulT  by  the  side  of  a  rail- 
road track  by  persons  having  occasion  to 
cross  said  track,  on  their  way  to  their  sev- 
eral occupations,  from  day  to  day,  and  a 
crossir.g  wver  the  ditch  by  the  track  was 
made  of  railroad  ties,  and  the  stairs  and 
crossing  were  used  by  pedestrians  in  cross- 
ing said  track  for  a  considerable  time  with- 
out opposition  on  the  part  of  the  railroad 
com|>iiny,  or  the  erection  of  any  fence  or 
other  obstacles  to  prevent  such  use,  thoii>;h 
the  same  was  known  to  the  coiiii)any's 
cm|,toyes,  the  conduct  of  the  company 
amounted  to  a  license  to  cross  its  track 
at  such  p<iint,  and  one  who  was  injured 
through  thr  negligence  of  the  company 
while  crossing  its  track  at  such  point  was 
entitled  to  recover  damages  therefor.  Clam- 
pit  V.  Chicago,  SI.  P.  &•  K.  C.  A'.  Co..  49 
Aw.  &*  Kng.  A'.  Cas.  468,  84  /owa  71.  50  A'. 

ir.  AVA  673. 

10.  with   kiiowh>(l|;<'  «•"•  »«'• 

fliiicNOciK'o  of  coiiiiMiii.v.  —  If,   by  the 

implied  assent  of  a  (■nni|)any,  the  public 
is  permitted  to  cros"  the  track  .tnd  is  ac- 
customed to  do  so,  it  is  the  duty  of  those 
in  charge  of  the  trains  to  be  on  the  lookout 
for  persons  using  the  crossing,  and  tn  give 
reasonable  notice  of  their  approach.  Lintis- 
ville  5-  A'.  A'.  Co.  v.  Schinler.  (A>.)  35  Am. 
**  Kng.  K.  Cas.  407.  7  .V  W.  Rep.  S74 - 
Foi.i.owiNc.  F*aducah  k  M.  R.Co.?'.  Iloehl, 
12  Bush  (Kv.)  50;  Louisville  A  N  XKCa^v. 
Howard,  82  K v.  218. 

Where  the  company  tacitly  permits  the 
public  to  use  as  a  crossing  the  junction  of 


i 


LICENSEES,  INJURIES  TO,  20. 


973 


the  riiilroad  and  a  private  road  kept  upcn 
for  use  by  its  employcSf  ihc  company 
owes  to  tlie  public  tliat  same  (ie};rce  of  care 
ill  ii.iniiliiit^  its  trains  over  and  across  tliis 
way  as  iliougli  it  had  been  a  pidilic  way,  ex- 
tc|>i.  ptrliaps,  a  statutory  duty  of  riii^jiiiy 
iis  l)cil  or  blowinji  its  whistle  on  approach- 
iiij;  uic  way.  Si/iiiia'/ir  v.  Mikvaukic,  L. 
S.  :s^  II'.  A'.  Co..  87  A/n-//.  400.  4y  .\'.  //'. 
Ju/>.  '170. 

Ill  an  action  a;.,Miii!'n  a  railroad  company 
fii  aili!;i-(l  tu-nligtiuo,  causiiij;  ti»e  death  of 
jjiaintill's  intestate,  it  ap|)eared  that  tlie  de- 
cedent was  run  over  and  killed  in  attempt- 
ing to  cross  defendant's  tracks  at  a  point 
wlu're  the  owners  of  acijoiniii);  lands  had  a 
ni;lit  of  way,  and  where  the  public  for 
thirty  years  had  been  in  the  hal)it  of  cross- 
iiij{.  /iV/(/,  thai  the  ac(piiesceiice  of  defend- 
ant for  so  long  a  time  in  tiiis  public  use 
.iinonnled  to  u  license  or  permission  to  all 
persons  to  cross  at  this  point,  and  imposed 
a  iiuty  upon  it,  as  to  persons  so  crossing,  to 
ixcicise  reasonable  caie  in  the  movement 
o!  its  trains,  so  as  to  protect  tlicm  from  in- 
jii  v.  /iiirtj  V.  j\'t3if  i'ori-  t.  (S-  //.  A'.  A'. 
t'ii.  13  A»i.&^  J'-»x.  A'.  Ciis.  615,92  A'.  ]'. 
2S9;  iijfiniitn^  28  //«//  441.— DisTiN- 
(iiisiiii)  l.\  Lewis  71.  New  York,  L.  E.  &. 
W.  K.  Co.,  123  N.  Y.  496.  Foi.i.owK.H  IN' 
1^  rue  V.  New  York  C.  &  1 1.  R.  R.  Ct  J04  N. 
Y,  362.  10  N.  E.  Rep.  539,  5  N.  Y.  S.  R.  722, 
58  Am.  Hep.  512.  QlioTK.n  IN  Winslow  r/. 
lloston  .S:  .A.  R.  Co.,  11  N.  Y.  S.  R.  831; 
II  irriinan  v.  Pittsburgh,  C.  k  St.  L.  R.  Co., 
"^2  .\m.  \'  Kng.  R.  Cas.  37,  45  Ohio  St.  li  ; 
Tavlor  V.  Delaware  ."fe  H.  C  anal  Co.,  113  Pa. 
St.  \(i2.  S7fi/t  V.  .s/,i/<7/  /s/,tn,i  A'.  T.  A'.  Ok, 
•,-,.  .\iii.  &.•  Kni;;.  A'.  Oi.s.  180.  123  A'.  )'.  645, 
^  .S//7'.  .l/>fi.  184,  25  A'.  /-:.  A',/>.  378,  33  A'.  )'. 
S.  A*.  fK)4;  ,x finning  52  Hun  614.  24  A'.  I'.  5. 
A'.  3?<).  I  .SV/7'.  Slip.  Ct.  375.  5  A',  v.  Suf>/>. 
v(\  .Al'iM.iKi)  IN  I.arkin  ?'.  Now  York  & 
X.  U.  Co.,  46  N.  Y.  S.  R.  658. -7'm'  v. 
C.ifi,-  l-rnr  ,%>  )'.  /'.  A\  Cn.,  34  Ami.  &^  Ent:. 
A'.  C/v.  13.  09  A'.  Cat-.  298,  6  S.  E.  Rep.  77. 
^Am  St.  Kip.  521.  Hitm'niiuiv.  /'///sfitifi,'^/!, 
C.  &-•  .s/.  /,.  A*.  Ci'..  32  //;//.  i""—  /•>(,'.  A'.  Ois. 
'v.  4S  "/""  .*>■/.  II,  12  A'.  E.  Kep.  451.— 
Ol'oriM,  Marrv  v.  New  York  C.  A  H.  R.  R. 
Co..  02  NY.  28i>.  Rkvikwino  Pittsburgh, 
Ft.  \V.  \-  C.  R.  C'.  v.  Bingh.tm,  20  Ohio  St. 
■!fA:  lVll(.f,,ntainc  k  I.  R.  Co.  --.  Snvder,  18 
Ohio  St.  300;  Kecfc  v.  Milwaukee  k  St.  P. 
R  C  >.,  21  Minn.  207.  D^lanfv  v.  MihiutU' 
ki;-&.'  .v.  /'.  A'.  Co.,  33   II :s.  67. 

Althu'ifrh  a  company  has,  by  permitting 
<>  I).  R.  D.  — 18 


people  repeatedly  to  cro.ss  its  tracks  at  a 
point  where  there  is  no  public  right  of  pas- 
sage, given  an  implied  license  so  to  do,  it 
owes  no  duty  of  active  vigilance  to  those 
crossing  to  guard  them  from  accident. 
The  company  is  not  restricted  by  the  license 
in  the  use  of  its  track  ;  nor  will  a  departure 
in  some  degree  or  particular  by  its  employes 
from  the  ordinary  course  of  |)rocedure 
make  it  liable  for  an  injury  resulting  there- 
from, unless  the  doing  of  an  act  is  shown 
which  might  reasonably  be  expected  to  cause 
injury  to  a  person  lawfully  on  the  track 
under  the  license;  the  licensees  acting  un- 
der it  take  the  risks  incident  to  the  business. 
:<Nlton  V.  AWt'  )■<'/>(•  C.  is^  n.  A'.  A".  Co..  66  A\ 
y.  243;  ri-i>ersiiig  4  Hun  760.— Ai'ri.lED  IN 
M()rris  v.  Hi  own.  1 1 1  N.  Y.318,  18  N.  E.  Rep. 
722,  19  N.  Y.  S.  R.  355,  -  Am.  St.  Rep.  751  ; 


Powers 


New  York   C.  k\\.  R.  R.  Co.. 


60  Hun  (N.  Y.)  19.  AlM'RovKU  in  Byrne 
V.  New  York  C.  iSt  H.  R.  R.  Co.,  104  N.  Y. 
362,  10  N.  E.  Rep.  539,  5  N.  Y.  S.  R.  722, 
58  Am.  Rep.  512.  Di.si  inciuisiikh  in  Cor- 
ded V.  New  York  C.  &  M.  R.  R.  Co..  70  N. 
Y.  119;  Barry  v.  New  York  C.  &  H.  R.  R. 
Co.,  13  Am.  &  Eng.  R.  Cas.  615,  92  N.  Y. 
289.  yi'oTKU  IN  Davis  V.  Chicago  &  N. 
\V.  R.  Co,  15  Am.  &  Eng.  R.  Cas.  424,  58 
Wis.  646,  46  Am.  Rep.  667.  Rkvikwkd  in 
Griswold  v.  Chicago  k  N.  W.  R.  Co.,  23  Am. 
k  Eng.  R.  Cas.  463,  64  Wis.  652  ;  Woolwine 
V.  Chesapeake  k  O.  R.  Co.,  50  Am.  k  Eng. 
R.  Cas.  37.  36  W.  Va.  329,  15  S.  E.  Rep.  81. 

If  persons  arc  in  the  habit  of  crossing  a 
railway  track  in  no  definite  path,  the  com- 
pany, although  acquiescing  in  such  habit,  is 
not  bound  to  take  |)recautions  for  their 
safety.  Harrison  \\  A'ortit  Eastern  N,  Co., 
22  ;f.  A'.  335.  29  A.  r.  844. 

20.    wUlioiit    illVitittioil    IVlMII 

(■oiii|Mliiy.— If  a  person  attempts  to  cross 
the  track  merely  by  the  license  or  permission 
of  the  comi)any,  and  not  under  circum- 
stances fr(mi  which  an  inducement  or  invi- 
tation to  persons  having  occasion  to  pass 
thereon  to  treat  the  same  as  a  highway  and 
to  use  it  for  any  lawful  purpose  can  be  in- 
ferred, no  recovery  can  be  had  for  negli- 
gence causing  the  death  of  such  person. 
//anks  V.  /{o.i/on  <&*  ./.  A'.  Co.,  35  Am.  5- 
Enjf.  A'.  Cas.  321.  147  ^'/<"«.  495.  7  '^■■  -fe'/jif. 
AV/.  139,  18  A'.  /•:.  A\p.  2 1 8. 

Proof  that  a  path  had  existed  over  de- 
fendant's track  for  twenty-five  years,  and 
that  the  company  had  not  fenced  it.  and  'n 
cleaning  its  ditches  had  thrown  the  dirt  on 


^S'l 


■'*•  f  J 


['.'  !.'..' 


I 


w. 


Hi 


274 


LICENSEES,  INJURIES  TO,  21-24. 


mm  i1 


IJ 


cither  side  so  as  to  leave  the  path  unob- 
structed, and  that  no  objection  had  been 
made  to  cruising  the  track,  except  when 
cars  were  passiiiK.  and  that  it  even  some- 
times opened  freight  trains  to  allow  persons 
to  pass,  is  not  suiricient  to  warrant  a  jury 
in  findinfr  that  it  held  out  any  inducement 
or  invitation  to  use  the  path  ,  and  a  person 
injured  in  crossing  could  not  recover  with- 
out proof  that  the  injury  was  wilful  or  reck- 
less. IVrigfil  v.  lioston  Sf  A.  A'.  Co.,  28 
-•//«.  &•  Krtg,  A'.  Cas.  652,  142  A/iiss.  296,  7 
JV.  E.  Kip.  866. 

21. without  the  kiiowledvu  or 

4!oiiNCiit  of  coiii|iuiiy.  —  The  public 
can  acquire  no  right  to  cross  a  railroad 
track  where  there  is  no  regular  roarl  until 
the  com|)any  has  notice  and  subsequently 
ac(piiesces  in  such  crossing ;  therefore 
where  a  person  sues  for  an  injury  at  such 
place,  it  is  error  to  charge  that  the  company 
was  bound  to  use  care  and  caution  in  run- 
ning at  that  point  if  the  people  were  in  the 
h.ibit  of  crossing  there.  Afatze  v.  New 
York  C.Sf'  H.  A\  A\  Co.,  i  Hun  {N.  V.)  417, 
3  /•.  5-  f.  513. 

Even  if  there  was  any  evidence  from 
which  a  license  might  be  inferred,  such  li- 
cense created  no  legal  right  and  imposed 
no  duty  upon  the  defendant,  except  the 
general  duty  which  every  man  owes  to 
others  to  do  them  no  intentional  wrong  or 
injury.  Matse  v.  Ne^v  York  C.  &*  //.  K.  A*. 
Co.,  I  /fun  (N.   V.)  417.  3  /"..S-  C".  513. 

22.  PcrMoiiM  walking  nioiiHT  track.* 

—  A  mere  licensee  upon  a  track  cannot  re- 
cover for  an  injury  received  by  a  backing 
train  where  his  presence  was  unknown  and 
unexpected,  and  the  usual  signals  were 
given.  liogan  v.  C/iicai^o,  M.  &*  St.  P.  R. 
Co.,  15  Am.  &■*  Eng.  A'.  Cas.  439,  59  IVis. 
•  39-  '7  ^-  ^^-  l^'P-  632.— yuoTiNCJ  Davis 
V.  Chicago  &   N.   W.   R.  Co.,  58  Wis.  646. 

—  DISTINGUISUKI)  IN  Whalen  v.  Chicago  & 
N.  W.  R.  Co.,  41  Am.  &  Kng.  R.  Cas.  558, 
75  Wis.  654,  44  N.  VV.  Rep.  849. 

The  statute  forbidding  persons  from 
walking  along  the  track  of  a  railroad  has 
no  bearing  in  a  case  of  permissive  user. 
Ihwis  v.  Chicago  5-  A'.  W.  R.  Co.,  15  Am. 
&*  Eng.  A'  Cas.  424,  58  li'ts.  646.  46  Am. 
Kep.  667. 

*  Duly  of  company  to  persons  on  track  p«r- 
missivcly,  see  note,  it)  Am.  iSc  Eng.  R.  Cas.  73,  83. 

Lial)ility  of  company  for  injury  to  one  who 
has  license  to  ((o  upon  the  track,  see  37  Am.  & 
Enc.   K.  Cas.  319,  iMtx/r.;  54/1/.  \b\,abstr. 


2.1.  iialiitunlly  with    knoul- 

cdirc  niHl  uvqiiluM(f«iic«  oi'  coinpaiiy. 

— Where  a  person  sues  for  an  injury  while 
crossing  a  track,  proof  that  he  had  been  ac- 
customed to  walking  on  the  track  without 
interference  for  years  will  not  excuse  him 
from  the  exercise  of  care  ;  but  if  such  walk- 
ing has  been  acquiesced  in  by  the  company, 
it  is  held  to  a  stricter  liability  than  if  he 
were  i'n  ordinary  trespasser.  Central  A'. 
Co.  V.  UrinsoH,  19  //w.  &*  Eng.  A',  Lax.  42, 
70  Ua.  207. 

if  the  right  of  way  of  a  railroad  com|mny 
has  been  constantly  used  by  the  public  for 
purposes  of  travel  on  foot,  with  its  knowl- 
edge and  acquiescence,  a  person  so  using 
the  same  is  not  a  trespasser,  but  is  a 
licensee,  and  the  company  will  be  liable  for 
an  injury  to  him  caused  by  the  negligent 
act  or  omission  of  its  servants.  J)avis  v. 
Chicago  &*  N.  W.  A'.  Co.,  is  Am.  6-'  Enj;. 
A'.  Cas.  424,  58  //  'is.  646,  46  Am.  AV/  6^)7. 

From  the  constant  use  of  the  ri^^lit  of 
way  of  a  railroad  company  for  purfKjses  of 
travel  daily  for  twenty  years  or  more,  with- 
out objection,  a  jury  would  be  justified  in 
finding  that  such  use  was  with  the  acquies- 
cence of  the  company.  Jhti'is  v.  Chicago 
6-  A'.  IV.  A'.  Co.,  15  Am.  <"-  Eng.  A'.  Cas. 
424,  58  IVis.  646,  46  Am.  Rtp.  667. 

Conduct  on  the  part  of  a  railroad  com- 
pany amounting  to  an  invitation  or  license 
to  cross  its  tracks  at  a  point  where  there  is 
no  street  or  public  highway  is  not  to  be  con- 
strued as  a  license  to  walk  along  its  tracks, 
and  one  so  walking  cannot  claim  of  the  niil- 
road  company  the  duty  of  exercising  onli- 
nary  care  in  the  movement  of  its  .rains  to 
prevent  his  injury,  even  though  said  tracks 
had  been  habitually  so  used  by  the  public, 
and  without  disapproval  on  the  part  of  tlic 
company.  Richards  v.  Chicago,  St.  /'.  if' 
A'.  C.  R.  Co.,  45  Am.  &*  Eng.  R.  Cas.  54,  81 
Imiui  426,  47  A'.  W.  Rep.  63. 

24.  l>4>(rr<>o  of  4*ar«  (loiiiaiiiltMl  ni 
roiiipaii.v.— The  use  of  the  track  by  pe<|ps- 
trians  with  the  company's  knowledge  does 
not  bind  it  to  the  exercise  of  extraordinary 
care  and  diligence  to  protect  them.  If  such 
use  amounts  to  a  license,  it  must  be  on  con- 
dition that  the  pedestrian  shall  exercise  or- 
dinary care  and  diligence  to  avoid  injury. 
White  V.  Central  R.  &*  li.  Co.,  83  (Ja.  5<>5. 
10  S.  E.  R,p.  273. 

Ii'crcased  vigilance  and  precaution  to  pre- 
vent injury  is  required  of  those  m  charge  o( 
trains  moving  in  or  near  a  city  or  town, and 


^HJ 


LICENSEES,  INJURIES  TO,  25-27. 


275 


the  fact  that  pedestrians,  by  license  or  cus- 
tom, travel  upon  a  railroad  track  at  a  par- 
ticuhir  place  makes  it  the  duty  of  the  ser- 
vants of  the  company  to  exercise  gre.aer 
cauti(jn  and  prudence  m  the  operation  of 
its  road  at  that  place,  whatever  may  be  the 
txlent  of  the  duty  which  the  com|>any  owes 
to  such  persons,  and  neither  a  train  nor  a 
sin^'li-  car  sliould  be  moved  at  such  a  place 
without  some  servant  in  a  p<»itioii  to  give 
warning;  of  its  approach  atui  control  its 
movement.  Shelby  v.  Cincinnati,  N.  O.  &* 
T.  /'.  /i'.  Co..  85  A>.  224.  3  .V.   ll\  Hep.  1 57. 

If  the  company  discovers  a  licensee  on  such 
aplacc  of  crossing,  it  is  its  duty  to  use  every 
precaution  to  prevent  injuring  him.  Gurley 
V.  Misioioi  l\tc.  A'.  Co.,  104  A/o.  211,  16  S. 
If.  AV/.  11. 

an.  ilnvHtUm  of  fact  for  Jury.— 
When  a  railroad  company  has  for  ycais, 
without  objection,  permitted  the  public  to 
cross  its  tracks  at  a  certain  point  not  in  itself 
a  |iul)lic  crossing,  it  owes  the  duty  of  rea- 
sonable care  towards  those  crossing ;  and 
whciiicr  ill  a  given  case  such  reasonable  care 
ha"  been  exercised  or  not  is  ordinarily  a 
question  lor  the  jury  under  all  the  evidence. 
Tiiy/or  v.  Iklaware  &*  H.  Canal  Co.,  28 
Am.  «S-  Et^.  R.  CVm.  656,  113 /'<i.  St.  162. 
8  ////.  Kep.  43.— yuoTiNO  Barry  v.  New 
York  C.  &  H.  R.  R.  Co..  92  N.  V.  289. 

UI.  COHTBIBDTORT  HBOLIOIVCE  OF 

uoBirni. 

20.  Puiliiro  to  use  ordinury  caro. 

—Even  if  a  party  has  an  implied  license  to 
walk  ill  the  private  yards  of  a  railroad,  his 
failure  to  exercise  ordinary  care  in  doing  so 
will  defeat  a  recovery  for  injuries  received, 
though  the  train  injuring  him  failed  to  give 
the  signals  of  its  approach  required  by  an 
ohlinance.  Missouri  Pac.  R.  Co,  v,  Moseley, 
57  /■'<•//.  h'e/i.  921. 

Where  an  individual  has  nothing  more 
than  ,in  implied  license  to  walk  on  a  tr.ick, 
and  walks  along  the  end  of  the  tics  in  day- 
liKht,  faring  an  approaching  train,  which  is 
in  full  view  when  a  thousand  feet  away,  but 
continues  until  he  is  struck  and  killed,  there 
can  be  no  recovery  ff)r  his  death,  though 
the  train  was  violating  an  ordinance  by  run- 
ningat  too  great  a  rate  of  speed.  Baltimore 
*-"•  l<\  Ok  v.  .State,  69  Af,l.  551.  18  Mil.  I.. 
/'<24,  16  ,.///,  AV/.  212.— Foi,l,(»wi.vtJ  State 
V.  Baltimore  A  O.  R.  Co.,  69  Md.  494. 

Where  the  plaintifT,  standing  on  hiswiigon 
loading  shingles  from  a  car  to  wliich  his 


team  was  tied,  sees  a  car  which  has  been 
switched  on  the  same  track  coming  faster 
than  usual  down  the  grade  to  the  car  where 
he  is  working  with  increasing  speed,  and 
does  not  sit  down,  though  he  has  left  the  lines 
tied  to  the  car  and  the  horses  arc  hitched 
to  the  wagon,  he  does  not  exercise  such 
common  prudence  as  to  entitle  him  to  re- 
cover. Hicks  V.  Missouri  Pac.  A',  Co.,  46 
Mo,  /{/>/>.  304. 

27.  Futliiru  to  keep  lookout  niid 
liu<!(l  wariiiiiKN.— Although  a  person  walk- 
ing upon  a  railroad  track  is  not  a  trespasser, 
but  IS  using  the  track  by  virtue  of  a  license 
by  the  company,  he  is  bound  to  exercise 
ordinary  care  to  avoid  injury,  and  he  has  no 
right  of  action  for  injuries  caused  through 
his  failure  to  keep  a  lookout  for  approacli- 
ing  trains,  especially  when  the  train  which 
caused  the  injury  was  only  moving  at  the 
rale  of  five  miles  an  hour.  McAdoo  v.  Kic/i- 
monii  &^  D.  A'.  Co.,  41  ^Ini.  &•  ling.  R.  Cas, 
524.  105  iV.  Car.  140,  II  S.  E.  Rep.  316. 

Although  it  should  ap|)ear  that  the  de- 
fendant's employes  in  charge  of  a  train  failed 
to  ring  the  bell,  and  that  the  place  where  an 
accident  occurred  was  frequented  by  people 
who  were  in  the  habit  of  using  the  track  for 
the  pur|>ose  of  foot  travel,  the  company  is 
not  rendered  liable  thereby,  if  the  accident 
was  merely  caused  by  the  concurrent  acts 
of  the  defendant's  negligence  in  failing  to 
ring  the  bell,  and  of  the  deceased's  contrib- 
utory negligence  in  being  on  the  track  with- 
out paying  any  heed  to  passing  trains. 
Guenther  v.  St.  Louis,  I.  M.&*  S.  R.  Co.,  34 
Am.  i5-  Eng.  Cas.  47,  95  Mo.  286.  14  U'esl. 
Rep.  735.  8  S.  ir.  Rep.  371.— Foi.lowkd 
AND  QUOTED  IN  DIauhi  V.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  105  Mo.  645. 

Tlie  plaintifT,  who  was  somewhat  intoxi- 
cated, could  have  reached  his  destination 
by  a  street,  but  left  it  and  undertook  to 
cross  defendant's  tracks  at  a  place  where  he 
had  nothing  more  than  a  mere  license  to 
cross,  and  where  the  view  of  an  ap|)rnarh- 
ing  train  was  somewhat  obstructed,  though 
he  could  have  seen  it  by  proper  vigilance 
in  time  to  'lave  avoided  it,  but  with  his  face 
turned  in  the  opposite  direction  he  did  not 
see  the  approaching  train  before  he  was 
struck,  and  failed  to  hear  warnings  given 
him  by  others.  //«•/</,  that  his  contributory 
negligence  ci'.used  the  injury,  and  a  nonsuit 
was  properly  allowed.  Harder  v.  Rome,  W. 
<5-  O,  R.  Co.,  17  W  Y.  S.  R,  S70,  49  Hun 
610.  3  JV,  V.  Supp.  70. 


'.i^''> 


V 


276 


LICliNShliS,  iNjLKIliS   TO,  28,  2«.— LIENS. 


2M.  llvvuvory  iiotwitliNtaiidiiitf.— A 

ci)in|)uiiy  is  not  relieved  (rum  liubility  for 
i<illiii({  u  person  on  its  truck,  who  is  not  a 
trcspusscr,  by  liiM  negligence,  if  it  could 
have  avoided  the  injury  by  the  exercise  of 
reasonable  care  after  discovering  such  negli- 
gence. Viilht  V.  Miluuiiikcf  &*  N.  A'.  Co., 
82  H'ls.  I.  51  .V.   ir.  A'ffi.  1084. 

When  one  who  is  not  a  trespasser  is  in- 
jured on  railroad  tracks  by  being  run  over 
by  an  engine,  and  the  accident  occurs  in  a 
city,  and  is  due  in  part  to  a  disregard  of 
municipal  regulations,  the  company  is  liable, 
notwithstanding  contributory  negligence  on 
the  part  of  the  injured  person,  if  those  in 
charge  of  its  engine  saw,  or  by  the  exercise 
of  ordinary  care  could  have  seen,  the  peril- 
ous condition  of  the  person  in  time  to  have 
averted  the  injury.  Atnuerman  v.  St.  Louis, 
1.  A/.  C»*  S.  A'.  Co.,  41  Afo.  App.  348. 

2U.  QiiuHtioii  of  i'tivt  for  Jury.— As 
it  is  lawful  for  one  to  goon  railroad  premises 
for  the  purpose  of  unloading  cars,  he  cannot 
be  declared  guilty  of  contributory  negli- 
gence as  a  n)atter  of  law.  Whether  he  is 
in  fact  is  a  question  for  the  jury  to  be  de- 
termined from  the  facts  of  the  case.  Barton 
V.  AV-7/'  York  C.  «S-  //.  A'.  A'.  Co.,  1  T.  6-  C. 
{X.  y.)  ^97  ;  affirmed  in  56  N.  V.  660,  »ifw. 

A  woman,  carrying  a  large  bundle  of 
r  iitliing  (m  her  head,  was  walking  south 
.'.lit;  an  unused  dummy  track  in  Vicks- 
I'  i-^;,  whereon  many  persons  were  accus- 
i<>.n>(l  to  walk.  Parallel  with  this  on  one 
:  ilu  was  a  public  street,  and  on  the  other 
iclcndant's  railroad.  A  locomotive  and 
i..e>  cars  met  and  passed  her, going  north  on 
lilt:  in.iin  line.  They  then  stopped  and  ran 
ii.ick,  two  cars  being  diverted  by  a  "run- 
ning; or  flying  switch"  to  a  side  track, 
which  curved  and  crossed  the  dummy  line 
and  adjacent  street  south  of  where  she  then 
was.  As  the  train  repassed  her  the  en- 
uiiieer  and  others  made  great  efforts  to 
warn  her  of  the  danger  of  the  detached  cars 
'apldly  approaching  behind  her,  but,  be- 
cause of  the  bundle  on  her  head,  these  efforts 
were  unavailing,  and  as  she  reached  the 
crossing  the  cars  struck  and  injured  her. 
J/M,  proper  to  instruct  that,  if  these  facts 
existed,  defendant  was  guilty  of  negligence, 
and  to  submit  to  the  jury  whether,  under 
the  circumstances,  the  woman  acted  with 
reasonable  prudence.  Alabama  &*  V.  R.  Co. 
V.  .Summers,  68  Atiss.  566,  10  So.  Kep.  63. 

On  these  facts  the  question  of  contribu- 


tory negligence  was  properly  submitted  to 
the  jury.  The  court  cannot  say  as  matter 
of  law  that  it  was  contributory  negligence 
on  the  part  of  the  woman  not  to  foresee  and 
guard  against  the  unlawful  act  of  tiie  de- 
fendant in  making  the  flying  switch  and 
starting  the  cars  on  their  dangerous  course 
behind  her.  Alabama  &*  I '.  A'.  Co.  v.  Sinii. 
mers,6^  Miss.  566,  10  So.  Kep.  63. 


LIENS. 

Enforcement  of,  see  Ei^uiiv,  17t 

For  taxes,  see    Rkvk.nuk,    12;  Taxation, 

ao<»-»io. 

purchaser  take*  aubject  to,  see  Moki- 

(SACKS,  2ff8. 

Mortgage  of  rolling  stock  is  subject  to  pre- 
existing, see  MuK'ri;A(iKs,  5:). 

Mortgages  of  after-acquired  property  do  not 
displace,  see  MoKniACKs,  42. 

Not  affected  by  receiver's  sale,  see  Kkckiv- 

KKS,   1  14. 

Of  attorneys,  see  Attor.nevs,  lU-20. 

—  bondholders,  see  Honds,  32. 

—  bailees,  see  HAiLMENr,  4. 

—  carriers,  for  charges,  see  Cakriagr  of  Live 

Stock,    lOM;    Cakkiauk    ok   Mkkcuan- 

DISK,  :i7a-:iuu,  aa2 ;  chak^ks,  uu- 

72;  l^xi'KEss  Companies,  ftt'S. 
upon  baggage,  see  HA(iUA(iK,  01-04. 

—  construction  companies,  see  Constklction 

OK  Railways,  120. 

—  corporations,  on  shares,  see  Siock.  34. 

—  coupons,  see  Coupons,  lO. 

—  creditors,  on  subscriptions,  waiver  of,  see 

Stock  holders,  OO. 

—  judgments,  see  Judcmknt,  37,  48. 

—  mortgages,  when  attach,  see  Mokigages, 

41. 

leased  property  not  subject  to,  see 

Leases,  etc.,  OO. 

—  receivers'    certificates,    see    Reckivers, 

101-10.3. 

—  state  aiding  railroad,  see  State  Aid,  8- 

12. 

—  subsidy  bonds,  see  Kansas  Pacific  R.  Ca, 

2. 

—  vendor,  se^  Eminent  Domain,  803;  Ven- 

dor AND  Purchaser,  5. 

—  warehousemen,  see  Warehoiiskmen,  7. 
Priority  between  deeds  of  trust  and  other, 

sec  Deeds  ok  Trust.  1 1. 

executions  and  other,  see  Execution, 

10. 

—  of  mortgage  over  judgment  and  execution 

liens,  see  Mortgagf.s,  1 23,  1 24. 

receivers'  certificates  over  other,  see 

Receivers,  OO. 


LIENS,  1-4. 


Protection  of  prior,  in  mortgage,  see  Mort* 

i.M-.KS.  HT-IOU. 
Purchaser  at  execution  tale,  when   taket 

subject  to,  see  Exkcution,  27. 
foreclosure  sale,  when  taket  subject  to, 

see  MOKTKACKS,  Si50. 

I   IN  OEKKBAL 377 

II.  MECHAHIC8'  UXMI 278 

1.  7'/ie  Statutes 278 

2.  Who  may  Claim  a  Lien. , . .   279 

3.  What     Property     may    be 

Reached 285 

4.  Duration  and  Expiration — 

Discharge— Waiver 287 

5.  Notice  of  Claim,  or  Lien  . . .   288 

6.  Foreclosure 291 

III.  UB0BEB8'  LIEN8 295 

1 .  Who  Entitled  to  a  Lien 295 

2.  What  is  Subject  to  the  Lien..  297 

3.  Notice  of  Claim 297 

4.  Assignability ;  Subrogation.   299 

5.  Enforcement 300 

I.  IH  OINEBAL. 

1.  Dift'ereut  kiudH  of  Ileus,  and 
how  creuted.— A  lien  is  not  the  result  of 
any  form  of  expression,  but  the  name  given 
to  a  ri(;ht,  and  what  creates  the  right  pro- 
duces the  lien.  Houston  &*  T.  C.  A'.  Co.  v. 
Bremond,  66  Tex.  159,  18  S.  W.  Rep.  448. 

Liens  are  of  two  kinds,  general  and  par- 
ticular, or  special.  A  particular  lien  is  the 
right  to  retain  a  thing  for  some  charge  or 
claim  ({rowing  out  of  or  connected  with 
that  identical  thing.  A  general  lien  is  the 
right  to  retain  a  thing  not  only  for  charges 
and  claims  specifically  arising  out  of  or 
connected  with  the  identical  thing,  but  also 
for  a  general  balance  of  account  between 
the  parties  in  respect  to  other  dealings  of 
a  like  nature.  Woodruff  v.  Nashville  <S-  C. 
R.  Co.,  2  llead(Tenn.)  87. 

Every  express  executory  agreement  in 
writini,'  whereby  the  contracting  party  indi- 
cates an  intention  to  make  some  particular 
property,  rual  or  personal,  or  a  fund  therein 
identilicd.  a  security  for  a  debt  or  other  ob- 
ligation, or  whereby  he  promises  to  convey, 
assign,  or  transfer  the  property  as  security, 
cnatcs  an  equitable  lien  upon  the  property 
which  is  enforceable  against  the  property. 
Fidtlily  /.,  T.  &*  S.  D.  Co.  V.  Shenandoah 
Valley  R.  Co.,  43  Atn.  &*  Eng.  R.  Cas.  356, 
33  "'.  I'a.  761.  II  5.  E.Ri-p.  58. 

2.  N«>4M>NHlty  of  iMiNMeHHioii— TraiiM- 
leroflli'n.  -Where  the  consignor  ren-  tins 
owner  of   the  goods  consigned,  no  special 


property  can  exist  in  the  factor,  or  any  lien 
general  or  special,  unless  he  have  posses- 
sion, eitlicr  actual  or  constructive,  of  the 
goods.  If  the  goods  are  in  transitu,  or  if 
the  factor  has  only  a  right  of  possession, 
the  lien  does  not  attach.  Woodruff  v. 
Nashville  &*  C.  R.  Co.,  2  Head  (Tenn.)  87. 

Though  it  lias  been  held  that  a  general 
lien  given  to  a  corporation  for  any  indebt- 
edne'ss  of  its  members  is  an  incident  of  the 
relationship,  and  not  of  the  debt,  and  hence 
does  not  pass  with  the  latter,  the  reason  of 
the  rule  does  not  apply  to  a  lien  given  to 
secure,  not  indebtedness  generally,  but  a 
particular  demand.  In  such  a  case  the  lien 
passes  with  the  debt  or  ceases.  J/ouston  &* 
T.  C.  R.  Co.  V.  liremond,  66  Tex.  159,  18  S. 
W.  Rep.  448. 

3.  F4»r  piirclinNu  price  of  rolling 
stock. — A  lien  for  the  purchase  money  of 
rolling  stock  reserved  by  contract  under 
Va.  Code,  tS  2462,  requiring  among  other 
things  that  each  locomotive  or  car  shall  be 
plainly  marked  with  the  name  of  the  vendor 
on  each  side,  followed  by  the  word  "owner," 
is  not  inconsistent  with  the  lien  given  by 
section  2485,  which  gives  a  prior  lien  to  all 
persons  who  furnish  supplies  necessary  for 
the  operation  of  a  railroad.  Newgass  v. 
Atlantic  &>  D.  R.  Co.,  56  Eed.  Rep.  676.— 
Following  Chicago  &  A.  R.  Co.  v.  Union 
Rolling  Mill  Co.,  109  U.  S.  703,  3  Sup.  Ct. 
Rep.  594. 

Where  cars  are  placed  upon  a  railroad 
under  a  contract,  termed  a  lease,  providing 
for  the  payment  of  the  purchase  price  in  in- 
stalments, reserving  the  right  to  the  ven- 
dor to  retake  possession  and  sell  upon  de- 
fault of  any  of  the  payments,  they  are 
"furnished"  within  the  meaning  of  Va. 
Code,  §  2485,  giving  a  lien  for  supplies  fur- 
nished. Neii'gass  v.  Atlantic  &•  D.  R.  Co., 
56  Fed.  Rep.  676. 

Before  such  cars  were  furnished  the  leg- 
islature passed  an  act  providing  for  a  supply 
lien,  but  it  was  declared  unconstitutional 
because  of  a  defect  in  its  title,  and  subse- 
quently this  act  was  carried  into  a  codifica- 
tion of  the  laws,  and  the  act  adopting  the 
code  was  passed  before  the  cars  were  fur- 
nished, but  it  did  not  go  into  effect  until 
after  they  were  furnished.  Held,  that  the 
statute  did  not  create  a  lien  on  the  cars. 
Ni-u'i^ass  V.  Atlantic  »&>•  D.  R.  Co.,  56  Fed. 
Rep.  676. 

4.  For  price  of  riiilH  niitl  other  iiiu- 
teriul.— A  written  contract  with  a  railroad 


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company  and  a  construction  company  sell- 
ing rails  and  other  material,  to  be  used  in 
Illinois,  in  building  a  railroad,  and  providing 
that  the  seller  shall  have  a  lien  thereon 
until  fully  paid  for,  is  not  a  waiver  of  a 
statutory  lien  given  the  seller.  Chicago  &> 
A.  R.  Co.  V.  Union  Rolli»ig  Mill  Co.,  i6  Am. 
<5«»  Eng.  R.  Cas.  626,  100  I/.  S.  702,  3  Su/>. 
Ct.  Rep.  594.— FoLLOWEn  in  Newgass  v. 
Atlantic  &  D.  R.  Co.,  56  Fed.  Rep.  676. 

5.  For  medical  r  iues  to,  and 
board  of,  injured  eKfi»'!oye.  -A  charge 
for  medical  services  and  board  furnished  by 
a  hospital  to  an  injured  ip  .'opd  employe 
is  not  within  the  meanir.  -  Va.  Code, 
§  2485,  giving  a  lien  for  .jniies  neces- 
sary for  the  operation  of  a  :.iii".  ad."  New- 
gass V.  Atlantic  &•  D.  R.  Co.,  56  ted.  Rep.  676. 

6.  Bill-holders'  lien.— The  eleventh 
section  of  the  charter  of  the  Monroe  R.  & 
Banking  Co.  gives  to  bill-holders  a  para- 
mount lien,  for  the  payment  of  their  bills, 
upon  that  part  of  tl;.  road  only  which  was 
built  by  the  company.  Collins  v.  Central 
Bank,  I  Ga.  435. 

Such  portion  of  the  road  as  was  built  by 
the  contractors  under  a  mortgage  thereon, 
to  secure  them  for  the  work  done,  and 
materials  and  equipments  furnished,  is 
liable  to  them,  and  their  lien  is  paramount 
to  that  of  bills  or  notes,  the  lien  of  the  lat- 
ter only  attaching  upon  such  portion  of  the 
road  as  was  built  by  the  company.  Collins 
v.  Central  Bank,  i  Ga.  435. 

The  statutory  lien  of  bill-holders  unaer 
that  charter  attaches  equally  upon  all  the 
property  and  effects  of  that  company. 
Woodward  v.  Central  Bank,  4  Ga.  323. 

7.  Boarding-liou.se  keepers'  lien. 
— S.  having  a  boarding-house  keeper's  lien, 
under  the  laws  of  Massachusetts  (Gen.  St. 
ch.  157),  upon  a  trunk  for  board,  did  not 
lose  it  by  sending  it  to  New  Hampshire,  by 
the  defendants,  under  instructions  not  to 
deliver  it  until  her  claim  upon  it  for  board 
was  paid.  Jaquith  v.  American  Exp.  Co., 
6oN.H.6\. 

II.  1IECHANIC8'  LIENS.* 

1.   T/ie  Statutes. 

8.  Kansas.— Laws  of  1865,  ch.  45,  which 
purported  to  authorize  mechanics'  liens 
upon  railroads,  was  repealed  by  the  general 

*  Decisions  of  the  various  states,  'elating  to 
mechanics'  lien  laws,  as  applicable  to  railroads, 
see  notes,  20  Am.  &  Eng.  R.  Cas.  502  ;  8  L.  R, 
A   700. 


statutes,  known  as  the  revision  of  1868. 
Burgess  \.  Memphis,  C.  &*  N.  W.  R.  Co., 
18  Kan.  53,  15  Am.  Ry.  Rep.  181. 

9.  Massachusetts.— A  debt  due  for 
labor  performed  in  constructing  a  railroad 
under  a  contractor  does  not  constitute  a 
lien  under  the  act  of  1873,  ch.  353,  §  i, 
where  the  contract  between  the  company 
and  the  contractor  was  made  before  the 
passage  of  the  statute,  though  the  labor  was 
performed  afterwards.  Parker  v.  Massa- 
chusetts R.  Co.,  115  Mass.  580.— Follow- 
ing Donahy  v.  Clapp,  12  Cush.  (Mass.)  440. 

And  such  lien  cannot  be  created  on 
the  theory  that  the  statute,  so  far  as  it 
enabled  plaintiff  to  sue  the  corporation  for 
the  work  done  under  the  contractor,  affected 
his  remedy  only.  The  statute  givps  a  new 
and  distinct  right  and  exposes  the  corpora- 
tion to  a  new  liability.  Parker  v.  Massa- 
chusetts R.  Co.,  lis  Mass.  580. 

10.  Missouri.— The  Railroad  Lien  Act 
of  March  21,  1873,  did  not  go  into  effect  un- 
til ninety  days  after  its  passage.  Andrews 
V.St.  Louis  Tunnel R.  Co.,  16  A/o.  App.  299. 

11.  Nebraska.*— Comp.  St.  Neb.  ch. 
54.  §  2,  gives  a  lien  upon  a  railroad  to  all 
persons  who  shall  perform  labor  or  furnish 
material  in  the  construction  of  such  railroad. 
Stewart-Chute  Lumber  Co.  v.  Missouri  Pac, 
R.  Co.,  39  Am.  &^  Eng.  R.  Cas.  566,  28 
Ned.  39,  44  A^.   If.  Rep.  47. 

12.  North  Carolina.  —  The  statutes 
of  March  28,  1870,  and  March  i,  1873, 
the  first  giving  a  lien  to  mechanics 
and  laborers  in  certain  cases,  and  the 
other  regulating  sales  under  mortgages 
given  by  corporations,  do  not  give  to  those 
performing  labor  and  furnishing  materials 
in  the  construction  of  railroads  a  lien  upon 
the  property  and  franchises  of  the  corpora- 
tion owning  and  operating  such  roads. 
Buncombe  County  Com'rs  v.  Tommey,  20 
Am.  &^  Eng.  R.  Cas.  495,  115  U.  S.  122, 
S  Sup.  Ct.  Rep. 626,  1 186.— Distinguishing 
Brooks  V.  Burlington  &  S.  W.  R.  Co.,  101 
U.  S.  443. 

The  proviso  of  section  3  of  said  act  of 
1873  has  reference  to  the  debts  and  con- 
tracts of  private  corporations  formed  under 
the  act  of  February  12,  1872,  and  not  those 
of  railroad  corporations  organized,  for  public 
use,    under  the  act  of   February  8,    1872. 


*  Validity  of  act  of  March  3,  188 1,  givinRriRht 
to  mechanics'  lien  on  railroad  for  materials  fur- 
nished, see 47  Am.  &  Eng.  R.  Cas.  2^i,a!>str. 


^"mmmm 


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LIENS,  13-17. 


279 


Buncombe  County  Com'rs  v.  Tommey,  20 
Am.  &'  Eng.  K,  Cas.  495,  115  U.S.  122,  5 
Sup.  Ct.  Rep.  626.  1 1 86, 

ly.  Ohio.— The  Mechanics'  Lien  Law, 
as  amended  March  30,  1875  (7^  Oliio  L. 
166),  does  not  provide  a  remedy  in  favor  of 
a  creditor  of 'a  subcontractor  against  funds 
in  the  hands  of  the  owner  of  the  building, 
due,  or  to  become  due,  to  the  original  con- 
tractor. Step/tens  w.  United  Railroads  Stock 
Yard  Co.,  29  Ohio  St.  227. 

1 4.  TexaH. — The  object  and  purpose  of 
the  statute  is  to  secure  to  mechanics,  labor- 
ers, and  operatives,  and  no  others,  wages 
due  or  owing  to  them  for  work  and  labor 
done  and  performed  in  constructing,  repair- 
ing, or  operating  the  road.  It  is  the  wages 
for  the  individual  personal  labor  of  the  me- 
chanic, laborer,  or  operator  that  it  has  ref- 
erence to.  It  does  not  extend  to  work  and 
labor  done  by  others,  nor  to  the  use  of 
teams,  nor  to  the  use  of  tools  and  imple- 
ments other  than  such  as  are  personally 
used  by  the  person  claiming  wages,  nor  to 
money  paid  out  for  the  company,  nor  to  sup- 
plies furnished  the  company.  Texas  <S»  St. 
L.  R.  Co.  V.  Allen,  i  Tex.  App.  {Civ.  Cas.) 
291.— Quoting  Atcherson  v.  Troy  &  B.  R. 
Co.,  6  Abb.  Pr.  (N.  Y.)  329;  Balch  v.  New 
York  &  O.  M.  R.  Co.,  46  N.  Y.  524. 

16.  Washington.— Though  the  Me- 
chanics' Lien  Law  of  1873  and  that  of  1877 
are  in  many  respects  similar,  yet  after  a 
careful  comparison  it  is  held  that  the  latter 
is  a  substitute  for  and  not  a  continuance  of 
the  former  ;  and  the  liens  or  rights  accruing 
under  the  old  law  only  survive  by  reason  of 
section  38  of  the  new,  which  expressly  pro- 
vides therefor.  Seattle  &•  IV.  IV.  R.  Co.  v. 
All  k'ow,  2   Wash.  T.  36.  3  Pac.  Rep.  188. 

10.  Canada. — There  is  nothing  in  the 
Mechanics'  Lien  Act  to  indicate  that  it  was 
intended  to  be  operative  to  a  greater  extent 
than  as  giving  a  statutory  lien,  issuing  in 
process  of  execution  of  efficacy  equal  to,  but 
not  greater  than,  that  possessed  by  the  or- 
dinary writs  of  execution.  A  mechanic's 
lien  is  not  analogous  to  a  vendor's  lien. 
Kiiti^  v.  Al/ord,  24  Am.  <&*  Eng,  R.  Cas.  331, 
9  Ont.  643. 

The  Mechanics'  Lien  Act  was  intended  to 
place  mechanics  on  a  more  favorable  foot- 
ing than  other  creditors,  and  their  right 
ought  not  to  be  measured  by  what  could  be 
realized  upon  an  execution.  There  seems 
no  distinction  in  principle  between  their 
position  and  that  of  an  unpaid   vendor  of 


land.    King  v.  Alford,  24  Am.  6-  Et^.  R. 
Cas.  331,  9  Ont.  643. 

2.    ly/io  may  Claim  a  Lien. 

17.  Contractors.*— (I)  In  general. — 
Under  the  California  and  Georgia  statutes,  a 
lien  for  work  or  materials  cannot  be  acquired 
on  a  portion  of  a  railroad  ;  and  where  the  con- 
tract is  entire,  but  payment  to  be  made  from 
time  to  time  as  the  work  progresses,  suc- 
cessive liens  cannot  be  filed  as  the  different 
payments  fall  due.  Cox  v.  Western  Pac.  R. 
Co.,  44  Cal  18,  5  Am.  Ry.  Rep.  198.  Farm- 
ers' L.  &*  T.  Co.  V.  Candler,  47  Am.  &*  Eng. 
R.  Cas.  296,  87  Ga.  241,  135.  E.  Rep.  560. — 
Quoting  Knapp  v.  St.  Louis,  K.C.  &  N.  R. 
Co.,  7  Am.  &  Eng.  R.  Cas.  395,  74  Mo.  374. 

The  Ga.  Act  of  1869,  giving  a  lien  to 
mechanics  and  laborers,  does  not  extend  to 
contractors  for  the  construction  of  a  rail- 
road. Savannah  (S>»  C,  R.  Co.  v.  Callahan, 
49  Ga.  506. 

Where  a  corporation  having  a  line  of  rpil- 
road  in  operation  to  a  town  or  city  witliin  a 
county  contracts  for  the  construction  of  a 
part  of  the  road  leading  from  such  town  or 
city  to  a  point  beyond  the  county  limits,  the 
contractors  may  acquire  a  lien  upon  the  part 
which  they  construct  or  aid  in  construct- 
ing, although  a  portion  of  it  lies  within  the 
county  in  which  a  part  of  the  road  is  com- 
pleted and  m  operation.  Midland  R.  Co.  v. 
Wilcox,  4^  Am.  &•  Eng.  R.  Cas.  629,  122 
fnd.  84,  23  A^.  E.  Rep.  506. 

In  enforcing  the  lien,  one  notice  filed  in 
each  of  the  proper  counties  will  cover  the 
entire  "'le  where  it  is  mcluded  in  one  con- 
tract, a  d  where  the  work  has  been  done 
upon  it  and  the  materials  furnished  for  it  as 
a  continuous  line.  Midland  R.  Co.  v.  Wil- 
cox, 43  Am.  &^  Eng.  R.  Cas.  629,  1 22  fnd. 
84,  23  A^.  E.  Rep.  506. 

Under  the  Indiana  Act  of  1883,  as 
amended  in  1885,  giving  a  lien  for  work 
done  or  materials  furnished  a  railroad,  a 
contractor  who  has  notice  of  the  pendency 
of  actions  by  subcontractors,  material-men, 
and  laborers  is  bound  by  judgments  ob- 
tained against  the  road  therein ;  and  such 
judgments  constitute  a  payment  to  the  con- 
tractors, and  amount  to  a  credit  to  the  com- 
pany, and  abate  the  contractors'  lien  to  that 

*  Contractors'  lien  for  labor,  see  52  Am.  & 
Eno.  R.  Cas.  17,  afistt. 

Contractors'  right  to  retain  possession  of  road 
until  paid  in  full,  see  52  Am.  &  Eng.  R.  Cas. 
15,  aisfr. 


I 

i 


It 


280 


LIENS,  17. 


extent.  Midland  R.  Co.  v.  Wihox,  43  Am. 
&^  Eng.  R.  Las.  629,  1 22  />id.  84,  23  JV.  E. 
Reft.  506. 

Where  a  construction  contract  is  declared 
ultra  vires,  and  therefore  void,  but  the  con- 
tractor is  allowed  compensation  for  the  work 
already  performed,  he  is  entitled  to  alien,  un- 
der the  Pennsylvania  resolution  of  January 
21,  1843,  for  the  amount  so  allowed.  New 
Castle  Northern  R.  Co.  v.  Simpson,  26  Fed. 
I  ep.  133. 

In  an  indenture  of  mortgage  executed  by 
a  rai'road  corporation  to  trustees  to  secure 
bonds  issued  to  raise  moneys  to  pay  off  its 
existing  indebtedness  aiid  to  complete  ,  .ic 
equip  its  road,  the  corporation  covenant ::d 
with  the  trustees,  among  other  things,  that 
the  expenditure  of  all  sums  of  money  re- 
alized from  the  sale  of  the  bonds  should  be 
made  with  the  approval  of  at  least  one  of 
the  trustees,  and  his  assent  in  writing  should 
be  necessary  to  all  contracts  made  by  the 
company  before  the  same  should  be  a 
charge  upon  any  of  the  sums  received  from 
such  sales.  Held,  that  a  contractor  agree- 
ing with  a  corporation  to  construct  a 
portion  of  the  road,  and  obtaining  the  as- 
sent of  two  of  the  trustees  to  his  contract, 
and  subsequently  doing  the  work,  did  not 
acquire  any  lien  for  the  payment  of  his  work 
under  this  covenant  of  the  indenture  upon 
the  fund  received  by  the  corporation  from 
the  bonds.  Dillon  v.  Barnard,  21  Wall. 
(U.S.)  MO. 

R.  agreed  to  quarry  and  furnish  defend- 
ants, who  were  railroad  contractors,  a 
quantity  of  stone,  the  contractors  making 
money  advances,  under  an  agreement  in 
writing,  but  not  recorded,  that  they  had  a 
first  lien  on  all  material  to  secure  the  ad- 
vances. After  a  quantity  of  stone  had  been 
quarried  R.  executed  a  bill  of  sale  on  the 
stone  to  plaintilT,  which  'vas  duly  recorded. 
Held,  that  the  bill  of  sale  was  valid  as 
against  defendants'  lien.  In  order  to  take 
such  a  sale  out  of  the  operation  of  the 
registry  laws  there  must  be  an  immediate 
delivery,  followed  by  actual  and  continued 
possession.  Hoivitt  v.  Gzowski,  5  Grant's 
Ch.  (U.C.)  555. 

(2)  Priority  07>er  mortj^ages  and  other 
//V/«.*  —  Contractors  for  work    in  the  con- 


*  Priorities  as  between  contractors  who  hold  a 
lien  on  the  road  and  purchasers  of  certificates 
and    bnr.ds,  see   24  Am.  &   Eng.  R.  Cas.  200, 

alisfr. 


struction  of  a  railroad  have  a  lien  ex- 
pressly given  them  by  the  statute  (par. 
55,  ch.  82,  III.  Rev.  St.)  superior  to  all  mort- 
gages or  other  liens  accruing  after  the  com- 
mencement of  the  work.  St.  Louis  &*  P. 
R.  Co.  V.  Kerr,  48  ///.  .4pp.  496. 

Under  the  joint  resolution  df  the  legisla- 
ture of  Pennsylvania  of  January  21,  1S43, 
restricting  the  right  of  railroad  companies 
to  sell  or  mortgage  their  property  while  in 
debt  to  contractors,  laborers,  or  material- 
men, it  was  intended  to  give  an  unpaid  con- 
tractor a  priority  of  claim  over  every  right 
that  could  be  acquired  by  a  mortgage,  or 
under  a  mortgage  made  after  the  debt  to 
the  contractor  was  incurred.  Fox  v.  Seal, 
22  Wall.  (U.S.)  424.  — Followed  in  Ty- 
rone &  C.  R.  Co.  V.  Jones,  79  Pa.  St.  60. 
Quoted  in  Shamokin  Valley  &  P.  R,  Co.  v. 
Malone,  £5  Pa.  St.  25. 

It  was  further  intended  that  the  property, 
into  whosesoever  hands  it  might  come, 
should  remain  subject  to  the  paramount 
claim  of  the  contractor  so  long  as  the  debt 
to  him  reniained  unpaid,  which  had  the 
effect  of  giving  him  a  lien  of  indefinite 
duration.    Fox  v.  Seal,  2?  Wall.  {U.  S.)  424. 

And  such  lien  was  not  merged  in  a  judg- 
ment obtained  by  the  contractor  against  the 
company.  In  whatever  shape  the  debt  was 
it  had  the  effect  of  a  statutory  privilege  or 
lien  upon  the  property ;  and  a  lien  would 
exist  after  the  judgment  had  expired  by 
lapse  of  time.  Fox  v.  Seal,  22  Wall.  ( U.  S.) 
424. 

And  where  the  road  is  mortgaged  after 
the  contractor  has  reduced  his  claim  to 
judgment,  and  he  wishes  to  revive  it  by 
scire  facias,  it  is  not  necessary  to  give  notice 
to  the  mortgagees  as  terre-tenants.  Such 
mortgagees  are  not  terre-tenants.  Fox  v. 
Seal,  22  Wall.  {U.  5.)  424. 

Under  the  enabling  act  of  April  4, 1862, 
which  recognizes  such  liens,  and  points  out 
a  mode  of  making  them  available,  all  that 
is  necessary  to  enable  the  contractor,  laborer, 
or  workman  to  proceed  by  scire  facias 
against  a  person  or  company  claiming  to 
hold  or  own  the  property  under  a  mortgage 
made  in  contravention  of  the  act  of  1843  is 
that  he  has  obtained  .a  judgment  against 
the  company  which  gave  the  mortgage.  It 
is  not  required  that  his  judgment  shall  be  a 
lien  on  the  property.    Fox  v.  Seal,  22  Wall. 

{U.S.)^2^. 

A  sale  of  the  railroad  property  under  a 
foreclosure  decree  wliich  directs  it   to  be 


LIENS,  18. 


281 


sold  "  subject  to  any  lawful  claims  or  rights 
wliicli  may  exist  prior  or  paramount  to  said 
mortgage  "  does  not  divest  a  lien  held  by  a 
contractor  under  the  resolution  act  of  1843. 
Fox  V.  Seal,  22  Wall.  {U.  S.)  424. 

And  a  subsequent  statute  authorizing  the 
corporation  to  borrow  money  and  pledge  its 
income  and  property  to  secure  payment  will 
not  be  construed  as  a  repeal  of  the  resolution 
of  1843,  so  as  to  divest  the  lien  created 
thereby.      Fox  v.    Seal,  22    Wall.  (£/.   S.) 

424- 

A  railroad  contractor  has  a  lien  on  the  road 
for  his  pay  in  the  nands  of  purchasers  at  a 
foreclosure  sale,  under  a  mortgage  executed 
subsequent  to  the  work,  even  though  the 
purchasers  at  the  sale  had  no  notice  of  such 
claim.  Shamokin  Valley  <&>•  P.  R.  Co.  v. 
Malune,  85  Pa.  St.  25.— Quoting  Fox  v. 
Seal,  22  Wall.  (U.  S.)  <^2^.— Tyrone  &*  C.  K. 
Co.  V.  /ones,  T)Pa.  St.  60. — FOLLOWING  Fox 
V.  Seal.  22  Wall.  (U.  S.)  424. 

(3)  Effect  of  reorgam'za'ioH.  —  A  rail- 
road contractor  is  entitled,  under  Mo.  Rev. 
St.  1879,  §§  3200-3216,  to  one  valid  lien  for 
work  done  and  material  furnished,  and  if 
the  first  is  defective  he  may  file  another 
within  ninety  days  from  the  time  the  work 
is  finished.  Such  lien  is  valid  not  only 
against  the  company  with  which  the  con- 
tract was  made,  but  also  against  another 
company  taking  the  property  with  notice  of 
the  obligation.  Nor,  in  case  of  sale  by  the 
company  with  which  the  contract  was  made 
to  another  company,  will  the  fact  that  the 
contractor  accepted  money  due  him  on  his 
contract  from  the  second  company  release 
the  first  one  from  its  liability  on  its  con- 
tract. Williams  v.  Chicago,  S.  F.  &-  C.  R. 
Co.,  112  Mo.  463,  20  5.  W.  Rep.  631.— Dis- 
tinguishing Allen  7^.  Frumet  M.  &  S.  Co., 
73  Mo.  688;  O'Connor  v.  Current  River  R. 
Co..  Ill  Mo.  185. 

With  a  view  of  securing  the  completion 
of  a  railroad,  a  statute  was  passed  author- 
izing the  company  and  its  "  Class  A  "  share- 
holders to  transfer  to  a  new  company  all  its 
property,  upon  condition  that  the  new  com- 
pany forthwith  discharge  the  liabilities  of 
the  old  company,  including  clai(nsof  certain 
contractors.  Plaintiff  was  a  contractor,  and 
before  the  ti.-nsfer  filed  a  bill  against  the 
old  company,  and  after  the  transfer  obtained 
a  decree  for  the  amount  of  his  claim.  Held, 
that  the  statute  did  not  create  a  lien  in  his 
favor  against  the  property  of  the  new  com- 
pany which  could  be   enforced  by  bill  in 


equity.     Brookfield  v.  New  Brunswick  &•  C. 
R.  <&-  L.  Co. ,  1 3  A'ezv  Brun.  409. 

18.  Siibeoiitructors.*— Where  a  stat- 
ute only  allows  subcontractors  to  acquire  a 
lien  on  the  road  when  the  company  owes 
the  contractor,  a  fraudulent  admission  by 
the  company  of  indebtedness  to  the  con- 
tractor which  in  fact  does  not  exist,  and  ob- 
taining judgment  for  the  amount  in  a  state 
court,  will  not  conclude  a  federal  court  in  a 
separate  suit  wherein  the  rights  of  bond- 
holders are  concerned.  Central  Trust  Co. 
V.  Bridges,  57  F'ed.  Rep.  753. 

Where  two  companies  are  '•''  rtered,  one 
in  Georgia,  and  the  other  in  messee,  but 
controlled  by  the  same  stoi-<cholders,  to 
build  a  road  that  is  intended  to  be  a  com- 
mon enterprise,  and  the  Georgia  company 
issues  its  bonds  to  pay  a  contractor  in  Ten- 
nessee, and  the  company  in  that  state  exe- 
cutes a  mortgage  on  its  road  to  secure  such 
bonds,  the  holders  of  such  bonds  acquire 
an  equitable  lien  on  the  road  sufficient  to 
entitle  them  to  contest  a  fraudulent  judg- 
ment which  would  have  the  eflfect  of  giving 
subcontractors  liens  on  the  road.  Central 
Trust  Co.  V.  Bridges,  57  Fed.  Rep.  753, 

The  subcontractors  in  Tennessee  could 
not  object  to  such  mortgage  on  the  ground 
that  it  was  given  after  the  Tennessee  com- 
pany became  insolvent,  and  was  therefore, 
under  the  state  law,  void.  If  such  subcon- 
tractors had  any  lien  on  the  road,  it  was 
prior  to  the  mortgage,  and  the  validity  or 
invalidity  of  the  mortgage  does  not  aflfect 
them.  Central  Trust  Co.  v.  Bridges,  57 
Fed.  Rep.  753. 

Neither  could  a  general  creditor  object  to 
such  mortgage  on  the  ground  that  it  gave 
unlawful  preferences,  where  his  claim  came 
into  existence  after  the  mortgage  was  exe- 
cuted. Central  Trust  Co.  v.  Bridges,  57 
Fed.  Rep.  753- 

The  III.  Act  of  April  3,  1872,  p.  279,  which 
gives  subcontractors  a  lien  upon  railroads 
for  labor  and  materials  furnished,  relates 
only  to  labor  and  materials  furnished  after 
its  passage,  and  gives  no  right  to  a  lien  for 
labor  and  materials  furnished  before  its 
passage.  Arbuckle  v.  Illinois  Midland  R. 
Co.,  81  III.  429. 

Under  the  act  of  1861,  p.  142,  relating  to 
liens  for  labor,  one  has  no  lien  unless  his 


*  Subcontractors'  lien.  Delivery  of  materials 
outside  of  state,  see  47  Am.  &  Eng.  R.  Cas.  386, 
abstr. 


I 


2S-Z 


LIENS,  10. 


contract  was  directly  with  the  railroad 
company,  and  he  commences  proceedings 
to  enforce  it  within  three  months  after  an 
action  accrues.  Arbuckle  v.  Illinois  Mid- 
land A*.  Co.,  8 1  ///.  429, 

The  stipulations  in  a  general  contractor's 
contract  for  the  construction  of  a  railroad 
were  required  to  be  performed  in  such 
manner  as  not  to  relieve  him  from  the  im- 
mediate charge  and  responsibility  of  the 
work,  and  were  such  that  the  company 
might  forfeit  the  same  for  neglect  to  put  on 
a  sufficient  force  to  complete  the  work  in 
the  time  stipulated,  or  require  him  to  make 
up  balances  due  to  laborers  or  persons 
furnishing  materials  or  supplies  montlily. 
Held,  that  the  relations  of  the  subcontractor 
to  the  general  contractor  were  such  that 
the  work  done  and  materials  furnisiied 
under  subcontractors  should  be  regarded  as 
materials  furnished  or  labor  done  under  his 
contract,  so  as  to  enable  those  furnishing 
the  same  to  enforce  a  lien  against  the  rail- 
road under  the  statute.  Solomon  v.  Nicho- 
las, 113  ///.  351,  1  N.  E.  Rep.  901. 

Provision  is  made  to  protect  subcontrac- 
tors to  the  extent  of  the  price  agreed  to  be 
paid  by  the  corporation  to  the  chief  con- 
tractor. The  subcontractor  acquires  a  lien 
upon  the  property  of  the  corporation  by 
giving  the  notice  prescribed  in  the  section 
next  following.  The  notice  was  given  in 
this  instance  by  the  subcontractors,  and 
this  suit  was  commenced  within  the  time 
provided  by  the  statute.  It  is  clear  that  as 
against  the  railroad  company  a  statutory 
lien  was  acquired  by  the  steps  thus  taken. 
St.  Louis  <S-  P.  A'.  Co.  V.  Kerr,  48  ///.  App. 
496. 

Ind.  Act  of  March  6,  1883,  as  amended  by 
the  act  of  April  13,  1885,  gives  to  persons 
who  furnish  material  for,  or  do  work  in,  the 
construction  of  a  railroad  a  lien  for  the 
reasonable  value  of  such  work  and  materi- 
•als.  A  subcontractor  who  has  been  paid 
by  the  original  contractor  more  than  the 
reasonable  value  of  the  work  done,  materials 
furnished,  and  services  rendered,  although 
not  the  full  contract  price,  cannot  enforce  a 
lien  against  the  railroad  company  for  the 
difference  between  the  amount  the  original 
contractor  agreed  to  pay  and  the  amount 
he  actually  did  pay.  Morris  v.  Louis^iillc, 
N.  A.  6f  C.  R.  Co.,  123  Ind.  489,  24  N.  E. 
Hep.  335- 

Where  contractors  to  build  a  railway 
were,  according  to  the  contract,  fully  paid 


before  the  completion  of  the  work,  without 
any  notice  of  lien  claims  by  subcontractors, 
such  liens  could  not  be  enforced  against 
the  company  or  its  property.  Roland  v. 
Centerville,  M.  &*  A.  R.  Co.,  1 1  Am.  i3»  Eng. 
R.  Cas.  47,  61  Iowa  3S0,  16  A'.  IV.  Rep.  355. 

Where  tlie  action  is  to  establish  and  fore- 
close an  alleged  mechanics'  lien  for  work 
done  on  the  railroad,  and  it  appears  that 
the  company  with  which  plaintiffs  con- 
tracted has  conveyed  the  road  prior  to  the 
making  of  the  contract,  plaintiffs  cannot 
recover  against  such  other  company  on  the 
ground  that  they  are  principal  contractors  ; 
nor  can  they  recover  as  subcontractors 
where  they  have  not  mplied  with  the 
statute  relating  to  subcv^  .tractors,  and  have 
not  framed  their  suit  on  that  theory.  Tiin- 
plin  V.  Chicago,  B.  iS-  P.  R.  Co.,  34  Am.  &* 
Eng.  R.  Cas.  107,  73  Iowa  548,  35  A'.  W. 
Rep.  634. 

Where  one  company  sells  and  conveys  an 
unfinished  railroad  to  another  company  and 
binds  Itself  to  complete  the  road,  tiie  first 
company  becomes  a  principal  contractor 
with  the  second  road,  and  persons  contract- 
ing with  the  first  company  to  do  work  are 
subcontractors.  Templin  v.  Chicago,  B.  &^ 
P.  R.  Co.,  34  Am.  &*  Eng.  R.  Cas.  107,  73 
loTva  548,  35  N.  W.  Rep.  634. 

Where  a  contract  to  build  a  railway  is 
sublet,  and  the  principal  contractors  do  not 
profess  to  act  as  the  agents  of  the  railway 
company,  their  subcontractors  cannot  en- 
force a  mechanic's  lien  against  the  railway 
company  for  the  work  done  by  them. 
B landing  v.  Davenport,  I.  &>  D.  R.  Co., 
57  Am.  &•  Eng.  R.  Caj.  428,  88  Iowa  225,  55 
'N.  IV.  Rep.  81. 

Minn.  Mechanics'  Lien  Law,  as  amended 
in  1874,  construed  as  giving  a  riyht  of  lien, 
not  only  to  subcontractors  for  the  construc- 
tion of  a  railway,  but  to  subcontractors  in 
the  second  degree.  Spafford  v.  Diiluth,  R. 
W.  &^  S.  R.  Co.,  48  Minn.  51 5,  51  A;  W^.  Rep. 
469. 

19.  Materinl-iiieii."' — (i)  In  general. 
— The  Ark.  Railroad  Lien  Act  of  March  19, 
1887,  creates  a  lien  in  favor  of  one  who 
furnishes   materials  to  build  any  railroad, 


*  Liens  for  materials  supplied  in  the  construc- 
tion of  railroads,  see  note,  39  Am.  &  Eng.  R. 
Cas.  575. 
.  Proportion  of  materials  furnished  to  contrac 
lor  and  his  assignee.  FilinR  claim  for,  see  4  j 
Am.  &  Eng.  R.  Cas.  641,  aistr. 


LIENS,  19. 


283 


whether  i'l  -^tporated  or  not.  Brown  v. 
Buck,  54  .//'..  ^53.  16  S.  W.Rep.  195. 

The  Illinois  statute  giving  a  lien  on  rail- 
roads does  not  extend  beyond  subcontrac- 
tors. One  furnishing  materials  to  a  subcon- 
tractor has  no  lien  against  the  company  or 
its  property.  Cairo  &•  S/.  L.  K.  Co.  v.  Wat- 
son, 85  ///.  531. 

Under  Kan,  Laws  1872, ch.  136,  ^  i,  labor- 
ers, mechanics,  and  material-men  furnishing 
work  or  materials  in  the  construction  of  a 
railroad  may  recover  against  the  obligors 
on  a  bond  given  by  the  contractor  in  pur- 
suance of  the  statute,  or  against  the  com- 
pany where  no  bond  is  given,  for  everything 
furnished  by  them  which  goes  into  the  con- 
struction of  a  railroad,  whether  such  labor- 
ers, etc.,  are  employed  by  the  contractor, 
by  a  subcontractor,  or  sub-subcontractor. 
Parkinson  v.  Alexander,  37  Kan.  1 10, 14  Pac. 
Rep.  466. 

But  persons  furnishing  only  provisions  or 
goods  which  do  not  go  into  the  construc- 
tion of  the  railroad  cannot  so  recover,  unless 
the  provisions  or  goods  are  furnished  to  the 
contractor  himself.  Parkinson  v.  Alexan- 
der, yj  Kan,  110,  14  Pac.  Rep.  466. 

Where  materials  are  furnished  to  a  rail- 
road contractor,  and  only  a  part  of  such 
materials  is  used  in  the  construction  of 
the  road,  a  lien  can  only  be  obtained  for  the 
part  actually  used.  Heltzell  v.  Chicago  &* 
A.  R.  Co.,  20  Mo.  A  pp.  435. 

Where  materials  are  furnished  a  railroad 
without  any  contract  as  to  how  they  shall 
be  used,  and  they  are  suitable  either  for 
constructing  an  unfinished  part  of  the  load 
or  for  carrying  on  a  finished  port':>n,  the 
person  furnishing  them  has  a  lien  under  the 
Kentucky  Act  of  March  20,  1876,  for  any 
part  that  may  be  used  in  operating  the 
railroad  ;  and  another  lien  under  the  Con- 
tractors' Act  of  March  27,  1888,  for  the  part 
used  in  constructing  the  road.  Tod  v. 
Kentucky  Union  R.  Co.,  52  Fed,  Rep.  241, 
6  U.  S.  App.  186,  3  C.  C.  A.  60. 

l?ut  where  such  person  loses  his  lien 
under  the  latter  act  by  reason  of  a  failure  to 
file  a  statement  within  the  time  required, 
the  burden  of  proof  is  on  him  to  show  what 
part  of  the  materials  was  used  in  carrying 
on  the  road.  Tod  v.  Kentucky  Union  R.  Co., 
52  Fed.  Rep.  241,  6  U.  S.  App.  186,  3  C.  C, 
A.  60. 

Under  the  provisions  of  Minn.  Gen.  St. 
1878.  ch.  90,  §  I  (now  repealed),  which 
gave  a  lien  to  a  subcontractor  who   fur- 


nished materials  for  the  construction,  altera- 
tion, or  repair  of  any  line  of  railway  in  the 
state,  it  was  not  essential  to  an  enforcement 
of  the  lien  that  said  materials  should  have 
been  furnished  or  delivered  by  the  sut)- 
contractor  within  tlie  limits  of  the  state. 
Thompson  v.  St.  Paul  City  R.  Co.,  45  Minn. 
13,  47  ;V.  \V.  Rep.  259. 

Materials  furnished  to  a  contractor  for, 
and  used  by  him  in,  the  construction  of  a 
railroad  are  to  be  regarded  as  furnished  to 
the  railroad.  Heltzell  v.  Chicago  iS-  A.  R. 
Co.,  16  Am.   «S»  Eng.  R.   Cas.  619,  77   Mo. 

3«5- 

)  What  deemed  "materials,"  etc. — 
Coal  cars  used  in  a  mine  are  within  the 
meaning  of  Alabama  Code  1886,  §  3018, 
giving  a  lien  for  "  any  material,  fixtures, 
engine,  boiJer,  or  machinery  "  furnished  for 
any  improvement  or  building  on  real  estate. 
Central  Trust  Co.  v.  Sheffield  &*  B.  C,  /.  &* 
R.  Co.,  42  Fed.  Rep.  106. 

In  order  to  obtain  a  lien  under  Mo.  Rev. 
St.  g  6741,  it  is  not  neoessary  to  show 
that  the  materials  furnished  to  a  railroad 
were  actually  used  in  the  construction  of  the 
road.  Central  7 rust  Co.  v.  Chicago,  K.  &* 
T.  R.  Co.,  54  Fed.  Rep.  598. 

So  such  lien  may  exist  for  tearing  down 
a  building,  or  for  constructi  ig  a  temporary 
bridge,  or  laying  drain  pipes  while  con- 
structing a  road.  Andrcius  v.  St.  Louis  Tun- 
nel  R.  Co.,  16  Mo.  App.  299. 

Lumber,  posts,  building  paper,  and  lath, 
sold  by  dealers  in  lumber  to  a  subcontractor 
engaged  in  building  a  railroad,  and  deliv- 
ered to  him  to  be  used  in  the  erection  of 
shanty  boarding  houses  and  stables  on  or 
near  the  line  of  the  railroad  for  the  use  of 
the  men  and  animals  employed  and  used  by 
such  subcontractor  in  and  upon  such  work, 
are  materials  furnished  in  the  construction 
of  the  railroad,  within  the  intent  and  mean- 
ing of  the  statute.  (Maxwell,  J.,  dissents.) 
Stetoart- Chute  Lumber  Co.  v.  Missouri  Pac. 
R.  Co.,  39  Am.  Sr'Eng.  R.  Cas.  yj\  28  JVed. 
39,  44  A'.  W.  Rep.  47.— Applying  Winslow 
V.  Urquhart,  39  Wis.  260.  DiSTiNGUiSH- 
ING  Basshor  v.  Baltimore  &  O.  R.  Co.,  65 
Md.  99,  3  Atl.  Rep.  285. 

The  hen  attached  immediately  upon  the 
furnishing  of  such  material  to  the  subcon- 
tractor in  good  faith  by  the  material-man, 
and  it  is  not  necessaiy  to  allege  or  prove 
the  actual  application  of  such  material  to 
the  purpose  intended.  (Maxwell,  J.,  dis- 
sents.)    Steivart-Chute  Lumber  Co.  v.  MiS' 


I 

§ 


^H 


^284 


LIENS,  ao,  21. 


'1 


11 


soioiPac.  A\  Co.,  39  A/>i.  &•  Eng.  R.  Cas.  566, 
28  Xd>.  39,  44  A'-  "'•  I<>-'P-X1- 

Giant  powder  furnisliuii  by  the  manufac- 
turcr  to  a  contractor  for  the  construction  of 
a  railway,  and  used  by  the  latter  in  the  prog- 
ress of  such  work,  is  "material,"  within 
tiie  purview  of  the  Oregon  Lien  Law  of 
1885,  for  the  value  of  which  such  manufac- 
turer is  entitled  to  a  lien  on  the  railway,  or 
such  portion  tliereof  as  the  powder  was  used 
in  the  construction  of.  Giiint-Pcruuitr  Co. 
V.  Oregon  Pac.  P.  Co.,  43  Am.  (S^•  Eiig.  P. 
Cas.  622,  42  Fed.  Pep.  470,  8  L.  P.  A.  700, 
14  :>au'y.  {U.  S.)  560.— Applying  Brooks  v. 
Burlington  &  S.  VV.  R.  Co.,  loi  U.  S.  443. 
Distinguishing  Basshor  v.  Baltimore  & 
O.  R.  Co.,  65  Md.  99,  3  Atl.  Rep.  285. 

(3)  and  ti'/iat  itot.—  \n  providing  that 

a  material-man  shall  have  a  lien  for  all  mate- 
rials (urnislied  for,  or  used  in  and  about, 
the  construction  of  bridges,  the  law  means 
such  materials  as  ordinarily  enter  into  or  are 
used  in  the  construction  of  bridges,  and  are 
fairly  within  the  express  or  implied  terms 
of  the  contract  between  the  owner  and  con- 
tractor. It  does  not  mean  the  machinery 
that  may  be  used  for  the  manufacture  of 
the  materials  themselves.  Basshor  v.  Bal- 
timore Sr'  O.  P.  Co.,  61  Md.  99,  3  All.  Pep. 
285.  —  Distinguished  in  Stewart-Chute 
Lumber  Co.  v.  Missouri  Pac.  R.  Co.,  28 
Neb.  39. 

Where  a  contractor  for  building  a  bridge 
buys  machinery  for  crushing  stone  to  be 
used  in  the  manufacture  of  artificial  stone 
for  the  masonry  work,  and  also  appliances 
to  carry  the  manufactured  stone  to  the 
place  where  it  is  to  be  used,  the  seller  of 
oUch  machinery  and  appliances  has  no  lien 
therefor  under  the  provision  of  Md.  Mechan- 
ics' Lien  Law  which  gives  a  material-man  a 
lien  for  all  materials  furnished  for,  or  used 
in  and  abot  ♦.,  the  construction  of  bridges. 
Biiss/ior  V.  Baltimore  &'  O.  P.  Co.,  6;  Aid. 
99,  3  Atl.  Pep.  285.— Distinguished  in 
Giant-Powder  Co.  v,  Oregon  Pac.  R.  Co., 
43  Am.  &  Eng.  R.  Cas.  622,  42  Fed.  Rep. 
470,  8  L.  R.  A.  700,  14  Sawy.  (U.  S.)  560. 

Materials  furnished  for  temporary  struc- 
tures only,  and  never  incorporated  in  the 
permanent  work,  are  not  proper  subjects, 
under  the  statute,  for  a  lien  upon  the  com- 
pleted roadbed.  Knapp  v.  St.  Louis,  K.  C. 
&>  A'.  P.  Co.,  6  AIo.  App.  205 ;  affirmed  on 
another  point  in  74  Mo.  374. 

Lubricating  or  illuminating  oils  are  not 
materials  within  the  meaning  of  Mo.  Rev. 


St.  §  3200,  providing  for  a  lien  to  per- 
sons who  shall  furnish  "ties,  fuel,  bridges, 
or  materials"  to  a  railroad.  Central  Trust 
Co.  v.  Texas  &'  St.  L.  P.  Co.,  23  J'ed.  Pep. 

703- 

Articles  furnished  to  a  railroad  company, 
such  as  trucks,  scales,  and  letter-presses, 
which  do  not  pass  into  the  structure  of  the 
road,  are  not  *' materials,"  within  Mo.  Rev. 
St.  §  3200,  relating  to  liens.  Central  Trust 
Co.  v,  Texas  <&<•  St.  L.  P.  Co.,  27  Fed.  Pep. 
178. —  Following  Central  Trust  Co.  v. 
Texas  &  St.  L.  R.  Co.,  23  Fed.  Rep.  703. 

20.  Assig'uee  of  coutractor. — A  me- 
chanic's lien  on  a  railroad  may  be  assigned. 
Texas  <S-  St.  L.  P.  Co.  v.  Allen,  i  Tex.  App. 
{Civ.  C<M.)29i. 

Contiactors'  liens,  under  the  Indiana 
statute,  are  assignable  in  equity,  especially 
where  the  claim  has  been  definitely  fixed 
prior  to  the  assignment.  Midland  P.  Co.  v. 
Wilcox,  ^■i^  Am.  <&<»  Eng.  R  Cas.  629,  122 
/nd.  84,  23  N.  E.  Pep.  506.— Overruling 
Pearsons  v.  Tincker,  36  Me.  384 ;  Caldwell 
V.  Lawrence,  10  Wis.  273. 

Where  defendant  agrees  to  deal  with  the 
assignee  of  the  original  contractor  "  as  if  he 
were  the  original  contractor,"  he  can  en- 
force a  lien  under  Ala.  Code  1876,  §§  3440- 
3447,  as  the  original  contractor.  Pensacola 
R.  Co.  V.  Schaffer,  76  Ala.  233. 

21.  Necessity  of  direct  contract 
with  owner. — The  lien  given  to  contrac- 
tors is  confined  to  those  contractors  em- 
ployed by  the  company  owning  the  railroad 
or  its  agent  in  that  regard  ;  and  the  right  of 
lien  does  not  extend  to  subcontractors  who 
procure  the  work  to  be  done  on  their  own 
account  in  pursuance  df  a  contract  between 
themselves  and  the  primary  contractors. 
Cartter  v.  Pome  &*  C.  Constr.  Co.,  89  Ga.  1 58, 
155.  E.  Pep.  36.  Blanding  v.  Davenport,  I. 
&•  D.  P.  Co.,  57  Am.  &*  Eftg.  R.  Cas.  428.  88 
/o7va  225,  55  N.  IV.  Pep.  81.  Norton  v.  St. 
Lows,  A'.  C.  (S-  JV.  P.  Co.,  84  Mo.  602.  Mc- 
Gugin  V.  Ohio  Piver  P.  Co.,  33  IV.  Va.  63,  10 
S.  E.  Pep.  36.  Richardson  v.  Norfolk  G^  IV. 
P.  Co.,  37  W.  Va.  641,  17  S.  E.  Rep.  195. 

A  mechanic's  lien  may  be  authorized  by 
an  oral  or  implied  contract.  The  fact  that 
the  contract  was  in  writing  would  not  ex- 
clude parol  evidence  to  show  the  purpose 
for  which  the  materials  included  in  the  con- 
tract were  used.  Neilson  v.  Iowa  Eastern 
R.  Co.,  51  Iowa  184,  714. 

One  who  furnishes  labor  and  materials 
for  a  railroad  under  a  contract  with  a  suh 


■"^"^^HHf^TW^ 


LIENS,  22,  23. 


285 


contractor  docs  not  come  within  the  pro- 
visions of  the  Kentucky  Actof  i8S8,  provid- 
ii,"liKit  [icrsons  furnishing  laboi  or  materials 
l,)r  a  railroad  or  otiier  work  of  public  im- 
piovemeiit,  by  contract  with  the  owner  or 
by  a  subcontract  thereunder,  shall  have  a 
hen  thereon  for  the  price  of  such  labor  and 
materials.  Centfiil  Trust  Co.  v.  Richmond, 
X.,  I.  Sir'  B.  R.  C'n.,  54  I'fd.  Rfp.  723. 

A  party  who  has  sold  materials  to  an- 
other, used  in  the  construction  of  a  road, 
has  no  privilege  on  the  work,  where  the 
materials  are  not  sold  to  the  owner  or  his 
ayeiit  or  subcontractor.  Woodward  \ 
American  Exposition  R.  Co.,  30  Am.  &• 
Ent^^.  R.  Cas.  256,  39  La.  Ann.  566,  2  So.  Rep. 

4'3. 

Mass.  Act  of  1873,  ch.  353,  giving  a  right 

of  action  against  a  railroad  to  any  person 
who  has  performed  labor  or  furnished  ma- 
terials under  an  agre»^ment  with  the  com- 
pany or  with  any  person  having  authority 
to  contract  therefor,  applies  to  persons  fur- 
nishing labor  under  a  contract  with  the 
company.  Hart  v.  Boston,  R.  B.&'L.  R. 
Co.,  121  Mass.  510. 

The  above  statute  is  not  unconstitutional 
when  applied  to  future  contracts.  Hart  v. 
Boston,  R.  B.  &*  L.  R.  Co.,  m  Mass.  510. 

A  party  furnishing  materials  to  a  com- 
pany under  a  contract  with  its  president  is 
an  "original  contractor  "  within  the  mean- 
ing of  the  Mechanics'  Lien  Law.  In  such 
case  the  contracts  of  the  president  are  those 
of  the  company.  Heartier.  Chillicothe  &*  B. 
R.  Co.,  53  Mo.  324. 

3.    What  Property  may  be  Reached. 

22.  In  general.— Prior  to  the  Mo.  Act 

of  March  21,  1873  (Acts  1873,  p.  58),  a  strip 
of  land  granted  to  a  company  for  a  right  of 
way  could  not  be  subjected  to  a  mechanic's 
lien.  It  was  not  the  design  of  the  Me- 
chanics' Lien  Law  (2  Wagn.  St.  p.  907)  to 
allow  a  railroad  to  be  sold  out  in  detached 
parcels.  Schulenburg  v.  Memphis,  C.  &'  N. 
II'.  R.  Co.,  67  Mo.  442. — Quoting  McPheet- 
ers  7'.  Merrimac  Bridge  Co.,  28  Mo.  467; 
Prop'rs  of  Locks  &  Canals  v.  Nashua  &  L. 
R.  "o.,  104  Mass.  9.  Reviewing  Dunn  f. 
North  Mo.  R.  Co..  24  Mo.  493.— Followed 
IN  Skrainka  v.  Rohan,  18  Mo.  App.  340. 

The  general  phrase  in  the  Oregon  Act  of 
1S85,  "any  other  structure,"  following,  as  it 
does,  a  specific  enumeration  of  works  de- 
clared to  be  subject  to  a  lien  for  labor  and 
materials  furnished  for  their  construction — 


such  as  a  "  building,"  "  ditch,"  "  flume,"  and 
"tunnel  " — must  be  held  lo  include  a  rail-' 
way.  Giant-/\m>dcr  Co.  v.  Oregon  J\ic.  R. 
Co.,  43  Am.  &^  Eng.  R.  Cas.  622,  42  Fed. 
Rep.  470,  8  L.  R.  A.  700,  14  Sauy.  {C.  S.) 
560. 

A  railroad  constructed  by  a  lessee  for 
mining  coal  in  the  slope  of  a  mine  is  not 
an  improvemen'  or  fixture  to  which  a  me- 
chanic's lien  will  attach  under  the  Pa.  Act 
of  1858.     Ester  ley's  Appeal,  54  Pa.  St.  192. 

While  a  mechanic's  lien  for  work  on  rail- 
roads is  given  upon  tiie  roadbed  and  equip- 
ments of  the  railroad,  it  is  contemplated  by 
the  statute  that  it  shall  be  enforced  against 
so  much  of  the  property  only  as  shall  be 
sufficient  to  satisfy  the  judgment,  thus  lim- 
iting the  lien  to  the  amount  of  the  judg- 
ment. Texas  &^  St.  L.  R.  Co.  v.  Allen,  i 
Tex.  App.  {Civ.  Cas)  291. 

The  Texas  statute  giving  mechanics  a 
lien  on  tiie  railway  for  work  performed  in 
the  construction,  limits  the  lien  to  roadbed 
and  equipment;  and  the  movable  property 
of  the  railroad,  which  is  not  included  in  the 
"equipments  of  the  road,"  is  not  subject  to 
a  lien.  Texas  &^  St.  L.  R.  Co.  v.  Allen,  i 
Tex.  App.  {Civ.  Cas.)  291. 

23.  Lien  covers  whole  road,  not 
a  part  merely.— Under  Ind.  Act  of  1883, 
giving  a  lien  to  persons  who  work  upon  or 
furnish  materials  for  a  railroad,  as  amended 
in  1885,  the  lien  given  is  in  legal  contem- 
plation upon  the  road  as  a  unit,  and  not 
upon  a  detached  portion  thereof,  such  as  a 
bridge,  embankment,  or  excavation.  Mid- 
land R.  Co.  V.  Wilcox,  43  Am.  <S>»  Etig.  R. 
Cas.  629,  122  /nd.  84,  23  N.  E.  Rep.  506. 

In  Iowa  a  mechanic's  lien  for  work  on  a 
section  of  a  road  attaches  to  the  whole 
road,  and  becomes  superior  to  the  lien  of 
an  existing  mortgage.  Meyer  v.  Egbert, 
loi  U.  S.  728.— Following  Brooks  v.  Bur- 
lington &  S.  W.  R.  Co.,  loi  U.  S.  443. 

A  lien  for  materials  furnished  for  the 
construction  of  a  railroad  embraces  only  the 
completed  portion  of  the  road ;  but  the  fact 
that  the  road,  as  projected  when  the  mate- 
rials were  furnished,  was  not  fully  com- 
pleted will  not  defeat  the  lien.  Neilson  v. 
Iffwa  Eastern  R.  Co.,  51  Iowa  184,  714. 

Where  a  part  only  of  a  railroad  lies 
within  the  state,  the  lien  for  materials  given 
by  sections  3200-3216,  Mo.  Rev.  St.,  is  to 
be  enforced  against  the  whole  of  that  part, 
and  not  against  a  section  or  portion  of  it 
only.     Ireland  v.  Atchison,  T.  &*  S.  F.  R. 


286 


LIENS,  24,  25. 


Co.,  20  Am.  &*  Eng.  R,  Cas.  493,  79  A/o.  572. 
— FoLLOwiNO  Knapp  v.  St.  Louis,  K.  C.  & 
N.  R.  Co.,  74  Mo.  374;  Cranston  v.  Union 
Trust  Co.,  75  Mo.  29. 

24.  Bri<lt;vM,  culverts,  trestleM,  etc. 
— Ordinary  lien  laws  K'vi'ig  to  mechanics 
and  laborers  a  lien  on  buildings,  including 
the  lot  upon  which  they  stand,  or  a  lien 
upon  a  lot  or  farm  or  other  property  (or 
work  done  thereon,  or  for  materials  fur- 
nished in  the  construction  or  repair  of 
buildings,  should  not  be  interpreted  as  giv- 
ing a  lien  upon  the  roadway,  bridges,  or 
other  property  of  a  railroad  company,  such 
as  may  be  essential  in  the  operation  and 
maintenance  of  its  road  for  the  public  pur- 
poses for  whicli  it  was  established.  Bun- 
conibe  County  Comrs  v.  Tommey,  20  Am. 
Sm  Eng.  R.  Cas.  495,  115  I/.  S.  122,  5  Sup. 
Ct.  Rep.  626,  1 186.  Graham  v.  Mt.  Ster- 
ling Coalroad  Co.,  14  Bush  {Ky.)  425.— 
Quoting  and  following  Applegate  v. 
Ernst,  3  Bush  650.— Distinguished  in 
Ludlow  V.  Cincinnati  Southern  R.  Co.,  7  Am. 
&  Eng.  R.  Cas.  231,  78  Ky.  zn.—Dunnw. 
North  Mo.  R.  Co.,  24  Mo.  493.— Quoted  in 
Schulenburg  v.  Memphis,  C.  &  N.  W.  R.  Co., 
67  Mo.  442.  Reviewed  in  Skrainka  v. 
Rohan,  18  Mo.  App.  340 ;  Hill  v.  La  Crosse 
&  M.  R.  Co.,  II  Wis.  214.— Eow/er  v.  Bu/- 
falo  &*  J.  R.  Co.,  I  Sheld.  (A'.  Y.)  525.  La 
Crosse  &*  M.  R.  Co.  v.  Vanderpool,  1 1  Wis. 
119. 

A  railroad  bridge  is  subject  to  the  me- 
chanics' lien  provided  for  by  section  i  of 
the  act  of  May  4,  1877  (74  Ohio  L.  168). 
Smith  Bridge  Co.  v.  Bowman,  41  Ohio  St. 
37.— Distinguishing  Rutherfoord  v.  Cin- 
cinnati &  P.  R.  Co.,  35  Ohio  St.  559.  Re- 
viewing Dayton,  X.  &  B.  R.  Co.  v.  Lew- 
ton,  20  Ohio  St.  401.  And  see  Rutherfoord 
V.  Cincinnati &•  P.  R.  Co.,  35  Ohio  St.  559. — 
Distinguished  in  Smith  Bridge  Co.  v. 
Bowman,  41  Ohio  St.  37. 

Wis.  Act  of  1861,  ch.  215,  amending  Rev. 
St.  ch.  153,  relating  to  mechanics'  liens, 
and  declaring  that  it  shall  apply  to  bridges 
in  the  state  or  repairs  thereon,  does  not  act 
retrospectively,  so  as  to  give  a  lien  on  a  rail- 
road  bridge  constructed  before  its  passage. 
Vanderpool  v.  La  Crosse  &»  M.  R.  Co.,  44 
Wis.  652, 

Under  Wis.  Rev.  St.  §  3314,  which  pro- 
vides that  "  every  person  who  as  principal 
contractor  performs  any  work  or  labor  *  •  » 
in  or  about  the  erection  ♦  ♦  *  of  any  bridge 
'*''*''''  shall  have  a  lien  thereupon,  and  upon 


the  interests  of  the  owner  of  such  *  ♦  * 
bridge,  in  and  to  the  land  upon  which  the 
same  is  situated,"  contractors  arc  entitled 
to  liens  upon  railroad  bridges.  Eurtili  v, 
Chicago  F.  6>»  B.  Co.,  39  Am.  &*  Eng.  R. 
Cas.  242,  74  Wis,  132,  42  A'.  W.  Rep.  265. 

25.  DepotM  aiul  other  biiihliii|>:M. — 
The  Connecticut  statute  giving  a  iicii  upon 
buildings  for  work  done  or  materials  fur- 
nished applies  to  buildings  erected  for  a 
railroad.  Botsford  v.  Xeiv  Haven,  M.  &* 
IF.  R.  Co.,  41  Conn.  454,  7  Am.  Ry.  Rep.  153. 

A  building  erected  by  a  company  to  be 
used  as  a  freight  depot  and  oflice  rooms,  on 
land  held  by  it  in  fee,  is  not  subject  to  a 
mechanic's  lien  under  the  general  Mechan- 
ics' Lien  Law.  Skrain/ca  v.  Rohan,  18  Mo. 
App.  340.  —  Following  Schulenburg  v. 
Memphis,  C.  &  N.  R.  Co.,  67  Mo.  442. 
Reviewing  Dunn  v.  North  Mo.  R.  Co.,  24 
Mo.  493. 

A  depot  building — held,  as  against  a  me- 
chanic's lien,  to  be  properly  connected  with 
the  line  of  the  railroad,  and  regarded  as 
part  of  the  mortgaged  premises,  which  were 
described  by  a  general  description  covering 
the  railroad,  land,  depots,  station-houses, 
etc.,  acquired,  and  to  be  acquired.  Coe  v. 
New  Jersey  Midland  R.  Co.,  31  N.J.  Eq. 
105 ;  reversed  in  34  N.J.  Eq.  266. 

A  stable  built  and  occupied  by  a  passen- 
ger-railway company  is  liable  to  a  me- 
chanic's lien.  Mcllvain  v.  Hestonville  6- 
M.  R.  Co.,  5  Phila.  {Pa.)  13. 

Where  lumber  dealers  sell  lumber  to  a 
railroad  company,  but  the  superintendent 
of  the  company  takes  a  part  of  it  and 
builds  a  house  belonging  to  himself,  the 
dealers  cannot  claim  a  mechanic's  lien  on 
the  house.  Gillespie  v.  Stanton,  8  Baxt. 
( Tenn. )  284. 

The  rule  that  a  railroad  is  an  entire 
thing  cannot  be  applied  so  as  to  cut  off 
a  mechanic's  lien  upon  a  depot  building. 
Such  property  does  not  become  a  part  of 
the  entirety  for  that  purpose,  until  the  lien 
is  discharged,  any  more  than  it  would  if  tlie 
lien  had  been  created  by  a  mortgage  exe- 
cuted by  the  company,  //ill  v.  La  Crosse 
<S-  A'.  R.  Co.,  II  Wis.  214.— Quoting  Piatt 
V.  New  York  &  B.  R.  Co.,  26  Conn.  544; 
Boston,  C.  &  M.  R.  Co.  v.  Gilmore,  37  N. 
H.  410;  Coe  v.  Columbus,  P.  &  I.  R.  Co., 
10  Ohio  St.  372. 

A  building  erected  for  a  railroad  com- 
pany is  as  clearly  within  the  letter  and  the 
spirit  of  the  mechanics'  lien  statute  as  any 


LIENS,  20-28. 


m 


other  building.  The  object  of  the  statute 
is  to  furnish  protection  to  those  wlio  ex- 
pend their  labor  and  materials  in  improv- 
ing the  property  of  others;  and  railroads 
are  not  an  exception  to  this  rule.  Ht/i  v. 
Ill  Crosse  &^  M.  Ji.  Co.,  n  IVif.  214. 

A  mechanic's  lien  does  not  attach  upon 
an  engine  house  and  turntable  built  for  a 
railway  company,  and  confessedly  neces- 
sary for  the  proper  working  of  the  rail- 
way; and  such  engine  house  and  turntable, 
and  the  land  whereon  they  are  erected, 
cannot  be  sold  under  a  proceeding  for  the 
purpose  of  enforcing  payment  of  a  nie- 
clianic's  lien.  King  v.  Alford,  24  Am.  &• 
Ehj;.  yi'.  Cas.  331,9  0/U.  643.— Following 
Breeze  v.  Midland  R.  Co,,  26  Grant's  Ch,  (U. 
C.)  225. 

Plaintiffs  con:racted  to  erect  a  depot  (or 
defendant  company  to  be  put  up  in  sections 
and  paid  for  as  the  sections  were  com- 
pleted. One  section  was  erected,  and, 
upon  the  company  failing  to  pay  therefor, 
plaintiffs  secured  a  mechanic's  Hen  thereon 
and  brought  suit  to  enforce  the  same. 
//(•/(/,  that  such  a  lien  was  clearly  within 
the  statute,  and  it  was  not  against  public 
policy  to  allow  the  lien  to  be  foreclosed  be- 
cause part  of  the  company's  track  was  on 
the  ground,  //i'//  v.  La  Crosse  &*  M.  R.  Co., 
11  Wis.  214.— Reviewing  Dunn  v.  North 
Mo.  R,  Co,,  24  Mo,  493, 

The  statute  provides  that  in  cities  a  me- 
chanic's lien  shall  extend  to  the  interest  of 
the  owner  of  the  building  in  the  lot  on 
which  it  is  situated,  not  exceeding  in  ex- 
tent one  acre.  The  depot  grounds  in  ques- 
tion embraced  a  city  block  composed  of 
several  lots.  Held,  that  the  word  "  lot "  as 
used  in  the  statute  had  no  reference  to  the 
lines  of  lots  as  they  might  be  platted,  but 
referred  to  the  particular  piece  of  ground 
used  in  connection  with  the  building,  not 
to  exceed  one  acre.  Hill  v.  La  Crosse  &* 
M.  A\Co.,  II   I  Vis.  214. 

20.  RoUiiigr  stock.— -The  rolling  stock 
of  a  railroad  does  not  constitute  a  part  of 
its  real  estate,  and  a  mechanic's  lien  upon 
the  railroad  does  not  embrace  such  prop- 
erty. Neilson  v.  Iowa  Eastern  Ji,  Co.,  51 
Itmui  184,  714.  —  Following  Randall  v. 
Elwell.  52  N.  Y.  521 ;  Chicago  &  N,  W,  R. 
Co.  V.  Ft,  Howard,  21  Wis,  45 ;  Coe  v. Colum- 
bus, P.  &  I.  R,  Co,,  10  Ohio  St.  372.  Not 
FOLLOWING  Pennock  v.  Coe,  23  How.  117; 
Gue  V.  Tide  Water  Canal  Co.,  24  How.  257 ; 
Minnesota  Co.  v.  St.  Paul  Co.,  2  Wall.  609; 


La  Crosse  &  M,  R,  Co,  v.  James,  6  Wall. 
750;  Scott  v.  Clinton  &  S  R,  Co.,6  Biss. 
529;  Farmers'  L.  &  T.  Co,  v.  St.  Joseph  & 
D.  C.  R.  Co.,  3  Dill.  412;  Pierce  v.  Emery, 
32  N,  H.  485,  Quoting  State  Treasurer  v. 
Somnierville  &  E.  R,  Co,,  28  N,  J,  L.  21. 

Coal  cars  are  not  subject  to  a  mechanic's 
lien,  under  the  Md.  Act  of  1845,  ch.  tyS. 
The  word  "machine  "as  used  in  the  statute 
applies  only  to  fixed  or  stationary  machin- 
ery, and  does  not  extend  to  movable  ma- 
chines. A'tw  England  Car  Spring  Co.  v. 
Baltimore  &*  O.  A\  Co.,  11  A/d.  81,— Quot- 
ing Chesapeake  &  O.  Canal  Co.  v.  Baltimore 
&0.  R.  Co.,  4  Gill  &  J.  (Md.)  152. 

27.  Subscriptions  to  stock. — Where 
a  company  has  contracted  with  a  subscriber 
to  its  capital  stock  to  apply  the  subscription 
to  the  construction  of  a  particular  part  of 
its  road,  a  contractor  who  has  done  the 
work  on  that  part  of  the  road  under  a  con- 
tract with  the  company  has  no  lien  on  the  ' 
subscription  to  secure  the  payment  of  his 
claim,  unless  he  has  contracted  therefor, 
and  the  president  and  directors  of  the  com- 
pany are  not  liable  for  the  appropriation  of 
the  subscription  to  the  payment  of  other 
debts  of  the  company  so  long  as  the  sub- 
scriber does  not  complain.  If  such  a  trust 
exists  in  favor  of  the  contractor,  he  cannot 
enforce  it  without  alleging  that  a  sutTicieiVt 
amount  to  pay  his  claim  remains  in  the 
hands  of  the  company  after  constructing 
the  portion  of  the  road  to  which  the  sub- 
scription was  to  be  applied.  Afj^er  v.  Du- 
Pont,  16  Am.  &«•  Etig.  R.  Cas,  621,  79  Ky. 
416. 

4.  Duration  and  Expiration — Discharge — 
Waiver. 

28.  Duration  of  the  lien.— Where  a 

material-man  has  an  open,  running  account 
with  a  railroad  company,  the  whole  of  the 
account  is  preserved  by  a  lien,  where  the 
last  items  of  the  account  accrued  subse- 
quently to  the  time  within  which  a  lien 
could  be  filed.  Central  Trust  Co.  v.  Texas 
<S-  St.  L.  R.  Co.,  23  Fed.  Rep.  673.— Fol- 
lowed IN  Blair  v.  St.  Louis,  H.  &  K.  R. 
Co..  23  Fed.  Rep.  704. 

Where  materials  are  furnished  for  the 
construction  of  a  railroad  in  car-load  lots, 
under  separate  and  independent  orders,  no 
lien  therefor  can  be  acquired  under  article  4, 
chapter  47,  of  the  Mo.  Rev.  St.  1879,  for  such 
car-loads  as  were  furnished  more  than  ninety 
days  before  the  filing  of  the  account  claimed 


:od 


LIENS,  au-«i. 


Ill 


^11 


to  be  a  lien,  altliougli  others  were  furiifsh<.'d 
witliin  thill  lime.  llcUscll\.  C/ticiigo  &•  A. 
A'.  Co.,  if)  ///«.  &*  ling.  A'.  C'liJ.  619, 77  Mo.  315. 

IW.  Forfeiture  of  the  lieu,  {;euer- 
ully.— I'roving  a  claim  Un  more  than  the 
amount  actually  due  does  not  work  a  for- 
feiture of  the  lien  under  the  statute.  DeLi- 
lOiVc,  A.  ijr'  \V.  R.  Co.  V.  Oxford  Iron  Co.,  i 
Am.  &*  Eng.  R.  Cas.  205,  33  A^.  /.  Eq,  192. 

Certain  municipalities  were  authorized  to 
issue  debentures  under  by-laws  to  aid  in  the 
construction  of  a  railroad.  The  contractors 
ajjrced  with  the  company  to  take  a  certain 
amount  of  tiieir  remuneration  in  these  de- 
bentures, and,  the  work  having  been  com- 
menced, certain  of  these  debentures  were 
issued  to  the  company.  The  contractors 
afterwards  failed  to  carry  on  the  works,  and, 
disputes  having  arisen  between  them  and 
the  company,  all  matters  in  difference  were 
left  to  arbitration,  and  an  award  thereunder 
was  made  in  favor  of  the  contractors  for  the 
sum  of  /27,645,  payable  by  instalments. 
One  of  tliese  instalments  having  become 
due,  and  been  left  unpaid,  the  contractors 
filed  a  bill  to  have  the  debentures  delivered 
over  to  tliem  in  the  proportion  stipulated 
for  according  to  the  terms  of  the  contract. 
Held,  that  although  the  contractors  would 
have  been  entitled  to  a  specific  lien  on  these 
debentures  under  their  original  agreement, 
the  fact  that  they  had  referred  all  matters 
in  difference  to  arbitration,  and  had  ob- 
tained an  award  in  their  favor  for  a  money 
payment,  precluded  them  from  now  obtain- 
ing that  relief.  Sykes  v.  Brockville  &*  0.  K. 
Co.,<)  Grant's  C/t.  ( (/.  C.)  9. 

iiO.  Waiver  by  talcing  collateral 
security. — A  person  having  a  statutory 
lien  on  materials  sold  to  a  railroad  which 
had  to  be  asserted  in  a  given  time  does  not 
waive  the  lien  by  agreeing  to  give  credit 
beyond  the  time  upon  receiving  security, 
where  the  security  is  not  given.  Chicago  &* 
A.  R.  Co.  V.  Union  Rolling  Mill  Co.,  16  Am, 
&*  Eng.  R.  Cas.  636,  109  U.  S.  702,  3  Sup. 
Ct.  Rep.  594. 

Under  Iowa  Code  of  1873,  §  2129,  pro- 
viding that  no  person  is  entitled  to  a 
mechanic's  lien  who  takes  collateral  security 
on  the  same  contract,  the  holder  of  a  claim 
for  labor  or  materials  for  a  building  does 
not  waive  his  right  to  a  mechahic's  lien  by 
taking  security  upon  the  same  property,  un- 
less it  affirmatively  appears  that  it  was  his 
intention  to  look  to  such  security,  and  not 
to  his  mechanic's  lien.    Hale  v.  Burlington, 


C.  R.  &*  A^.  K.  Co. ,  2  McCrary  ( tT.  5. )  558,  1 3 
Fed.  Rep.  203. 

Hut  if  the  security  be  taken  upon  other 
property  than  that  upon  which  the  party 
has  a  mechanic's  lien,  it  is  collateml,  and  the 
mechanic's  lien  is  thereby  waived.  Sd 
where  a  party  furnishes  materials  for  the 
construction  or  repair  of  a  railnnul,  and 
takes  a  collateral  security  upon  railroad 
bonds  secured  by  a  mortga/^'.  upon  one  di- 
vision of  the  road,  includiii|jf  the  rollin>,' 
stock,  he  thereby  waives  his  mechanic's 
lien.  Hales,  Burlington,  C,  R.  &*  A'.  R.  Co., 
2  McCrary  (i/.  S.)  558,  i^  Fed.  /I'r/.  203. 
— Kevikwing  Neiison  v.  Iowa  Eastern  K. 
Co.,  51  Iowa  184, 

A  provision  in  a  contract  between  a  rail- 
road company  and  a  construction  company 
that  the  latter  is  to  be  paid  from  funds  aris- 
ing from  a  subscription  to  tlie  stock  of  the 
road  by  a  certain  county  is  not  such  taking 
of  collateral  security  as  will  defeat  a  me- 
chanic's lien  on  the  road,  under  the  laws  of 
Iowa,  providing  that  persons  constructing 
roads  shall  have  a  lien  thereon  prior  to  a 
mortgage  lien,  unless  the  holder  of  the 
former  takes  collateral  security  for  his  claim. 
Meyer  v.  Delaware  R.  Const r.  Co.,  100  (J.  S. 
457,21  Am.  Ry.  Rep.  465. 

Where  a  contract  for  work  upon  a  rail- 
road contains  a  clause  reciting  that  the 
money  for  the  work  shall  be  paid  by  the  cit- 
izens of  a  certain  county,  this  does  not  con- 
stitute the  contractor  the  holder  of  collat- 
eral security,  so  as  to  prevent  him  from 
acquiring  a  mechanic's  lien  on  the  road. 
Delaware  R.  Constr.  Co.  v.  Davenport  &• 
St.  P.  R.  Co.,  46  Iowa  406. 

A  waiver  of  a  mechanic's  lien  will  not  be 
inferred  merely  from  the  taking  of  collat- 
eral security  from  another,  and  in  a  manner 
not  inconsistent  with  the  retention  of  the 
lien.  Kilpatrick  v.  Kansas  City  (S-  B.  R.  Co.. 
57  Am.  &*  Eng.  R.  Cas.  398,  38  Ned.  620,  57 
A^.  IV.  Rep.  664. 

The  acceptance  of  a  promissory  note  with- 
out security  is  not  a  waiver  of  the  lien 
given  to  the  laborers  by  the  New  Jersey 
statute,  Delaware,  L.  &*  W.  R.  Co.  v. 
Oxford  Iron  Co.,  i  Am.  &*  Eng.  R.  Cas.  205, 
33  N.  J.  Eq.  192. 

5.  Notice  of  Claim,  or  Lien. 

31.  Time  witliin  which  lien  must 
be  filed,  generally.*— Where  a  contrac- 

*Tinie  within  which  contractors'  lien  must  be 
filed,  see  52  Am.  &  Eng.  R.  Cas.  18,  abstr. 


ii 


m 


LIENS,  32. 


ib!) 


i 


tor  has  so  far  abandoned  the  prosecution  of 
his  work  as  to  allow  the  siatut<jry  period  to 
run  a^jainst  the  tiliny  of  a  mechanic's  lien, 
he  cannot,  sua  spontc,  for  the  mere  purf)03e 
of  securinf,'  a  lien,  furnish  sonic  material 
after  the  statute  has  run  aj;ainst  the  last  pre- 
ceding item.  Central  Trust  Co.  v,  Chicago, 
K.  &^  '/'.  A'.  Co.,  54  /'Vf/.  /vV/.  598. 

A  mechanic's  lien  against  a  railroad  will 
be  considered  to  have  been  filed  within 
thirty  days  from  the  completion  of  the 
work,  within  the  meaning  of  the  statute, 
where  it  appears  that,  although  the  work 
done  within  that  time  was  not  contemplated 
by  the  coptriff,  the  obligation  of  the  con- 
tractor to  the  company  was  not  extin- 
guished; and  it  is  proper  to  count  as  part 
of  tiie  work  two  weeks  spent  by  the  direc- 
tion of  the  chief  engineer  in  removing 
materials  wrongfully  placed  upon  the  land 
of  another  by  tlic  contractor,  whose  obliga- 
tions to  the  company  did  not  terminate 
until  such  materials  were  removed.  Gordon 
Har(hvarc  Co.  v.  San  Francisco  6^  S.  A'.  A', 
Co.,  47  Am.  &^  Eng.  R.  Cas,  C93,  86  Cat. 
620,  25  Pac.  Kcp.  125. 

Where  a  party  fails  to  file  his  lien  within 
the  time  required  by  statute,  and  allows  a 
mortgage  on  the  road  to  be  foreclosed  and 
the  i)roperty  bought  in  by  the  bondholders, 
and  a  new  company  formed,  and  it  appears 
that  the  bondholders  have  acted  in  gt.  d 
faith,  the  mechanics'  lien  cannot  be  en- 
forced. The  mere  entry  on  the  books  of 
the  company  of  the  amount  of  the  claim 
cannot  be  considered  as  notice  to  the  bond- 
holders that  the  party  was  entitled  to  a  lien. 
Bear  v.  Burlington,  C.  A'  &*  M.  A\  Co.,  48 
/o7va  619. 

Under  Mo.  Rev.  St.  §  6743,  requiring  a 
mechanic's  lien  for  labor  done  or  materials 
furnished  to  be  filed  within  ninety  days,  such 
lien  mujt  be  filed  within  ninety  days  of  the 
date  of  the  last  item  under  each  separate  ac- 
count. Central  Trust  Co.  v.  Chicago,  K.  (&- 
T.  A'.  Co.,  54  Fetl.  Rep.  598. 

General  contractors  in  May,  1874,  filed  a 
bill  to  assert  a  mechanic's  lien  against  a 
railroad  company,  predicated  on  notice  of 
lien  recorded  in  the  chancery  court  of  Rich- 
mond city,  27th  December,  1873,  and  no- 
where else.  Lien  claimed  for  $5000  worth 
of  lumber  furnished  railroad  company  at  dif- 
ferent times  and  places ;  part  for  construct- 
ing wharves  in  H.  county,  within  one  mile 
of  corporate  limits  of  said  city;  another 
part  for  constructing  tunnel  in  said  city; 
6  D.  R.  D.— iq 


third  part  for  constructing  coal  bins  and 
trestles  at  S.  in  A.  county  ;  and  residue  for 
constructing  round  house  at  H.  in  \V.  V'a. 
Lien  claimed  on  whole  property  of  railroad 
company  in  this  state,  and  particularly  on 
the  wharves,  etc.,  and  the  tunnel,  etc.  The 
items  extend  from  July  i  to  December  8, 
1873;  but  the  last  lumber  furnished  for  the 
tunnel  was  on  ?■  w'cmber  8,  1873.  Ihld :  ( 1) 
they  have  no  statMory  lien  against  the  rail- 
road company  ;  (21  they  have  no  equitable 
right  to  priority  over  the  morttjages,  on  the 
principles  .  ifirme(i  in  Wil'i  unson  xi.  Wash- 
ington City,  V.  M.  <^:  G.  S.  R.  Co.,  33 
Gratt.  624,  and  Gii  ;t  v.  Washington  City, 
V.  M.  &  G.  .S.  R.  Co.,  33  Gratt.  586.  645, 
because  such  claim  was  asserted  first  here 
in  argument,  but  not  in  the  record  ;  and  be- 
cause the  materials  were  purchased  for  the 
construction,  not  for  the  maintciianro,  of 
the  road ;  (3)  the  wharves  are  within  the 
jurisdiction  of  said  city,  which  extends  one 
mile  beyond  its  corporate  limits,  but,  in  the 
sense  of  the  statute,  they  are  not  within  the 
city ;  (4)  the  tunnel  is  within  the  city,  but 
'he  last  item  of  the  account  for  lumber  fur- 
nished for  the  tunnel  is  dated  September  8, 
1873,  and  the  lien  claim  was  not  filed 
within  the  prescribed  time.  Boston  v.  Ches- 
apcake  &^  O.  R.  Co.,  12  Am.  &*  ling.  R. 
Cas.  263,  76  Va.  180.— Disapproved  in 
Farmers'  L.  &  T.  Co.  v.  Canada  &  St.  L.  R. 
Co.,  47  Am.  &  EnjJ.  R.  Cas.  271, 127  Ind.  250. 

32.  Filing  claim  by  subcontractor. 
— A  subcontractor  on  a  railroad,  to  secure  a 
mechanic's  lien  for  work  done,  must  file  his 
claim  therefor  within  sixty  days  from  the 
last  day  of  the  calendar  month  in  which  the 
work  was  performed,  the  word  "done"  in 
the  statute  having  reference  to  the  time  of 
the  perforniance  of  the  work,  and  not  to  the 
time  when  the  work  of  the  subcontractor  is 
completed,  and  each  month's  work  for  this 
purpose  being  considered  as  separate  from 
that  of  other  months.  Samival  \.  Ford,  55 
Iowa  461,  8  A^.  W.  Rep.  324. 

Where  a  subcontractor  settles  with  his 
contractor  and  a  balance  is  found  due,  and 
he  files  the  claim  in  due  time,  and  in  a  sub- 
sequent suit  his  lien  is  established,  in  a 
subsequent  foreclosure  proceeding  wherein 
the  lien  holder  is  a  party  the  mortgagees 
cannot  object  to  the  validity  of  the  lien  be- 
cause he  has  not  also  presented  to  the  com- 
pany the  settlement  certified  by  the  con- 
tractor showing  the  balance.  Brooks  v. 
Burlington  &*  S.  W.  R.  Co.,  loi  U.  S.  443. 


290 


LIENS,  ;?;>-3<t. 


33.  Subcontractors'  noticeto  own- 
er.—The  filing  of  a  statement  of  account 
required  to  be  filed  with  the  clerk  by  a  sub- 
contractor within  thirty  days,  to  establish 
his  lien,  or,  if  he  claims  a  lien  upon  a  rail- 
way, within  sixty  days  of  the  last  day  of  the 
month  in  which  the  work  was  done,  does 
not  entitle  the  subcontractor  to  his  lien  un- 
less he  shall,  within  the  proper  time,  give 
written  notice  of  the  filing  thereof  to  the 
owner,  or  his  agent  or  trustee.  Any  other 
than  the  written  notice  contemplated  by 
statute  will  not  avail.  Lounsbury  v.  Iowa, 
M.  <S-»  .V.  /'.  /i'.  Co.,  49  Iowa  255. 

As  to  notice,  there  is  no  distinction  be- 
tween railroad  and  other  subcontractors,  the 
former,  like  the  latter,  being  required  to 
give  notice  of  their  claims  within  thirty  days 
from  the  completion  of  their  work  to  pre- 
vent payments  being  made  to  their  princi- 
pals. Sandval  v.  Ford,  55  Iowa  461,  8  N, 
IV.  Hep.  324. 

Under  the  laws  of  Oregon,  providing  that 
every  subcontractor  or  laborer  performing 
work  or  furnishing  materials  for  any  con- 
tractor of  a  railroad  company  may  acquire  a 
lien  upon  the  property  of  the  company  to 
the  extent  of  the  amount  due  from  it  to  the 
original  contractor  at  the  time  a  required 
notice  of  the  lien  is  given,  the  prescribed 
notice  creates  and  originates  the  lien,  and 
if,  before  such  notice  is  given,  a  general  cred- 
itor of  the  contractor  has  acquired  a  right 
by  garnishment  under  an  attachment  or  ex- 
ecution to  have  the  debt  of  such  contractor 
applied  in  satisfaction  of  his  claim,  the  lien 
of  the  subcontractor  will  not  attach  to  the 
railroad  property.  Coleman  v.  Oregonian 
K.  Co.,  57  Am.  &^  Etig.  K.  Cas.  436, 25  Ortg, 
286,  35  Pac.  Hep.  656. 

Notice  may  be  furnished  the  owne*-  by  a 
subcontractor  at  any  time  between  doing 
the  labor  or  furnishing  the  materials  and 
twenty  days  after  the  building  is  completed 
or  the  work  terminated ;  but  the  affidavit 
must  be  furnished  within  the  twenty  days. 
Norfolk  &'  W.  K.  Co.  v.  Howison,  81  Va. 
125. 

34.  Filinsr  claim  of  lieu  for  sup- 
plies.—Under  Va.  Code,  §  2486,  providing 
that  no  person  shall  be  entitled  to  a  railroad 
supply  lien  unless  he  shall  file  a  memoran- 
dum of  his  claim  within  six  months  after  it 
has  fallen  due,  the  time  of  furnishing  supplies 
isimmaterialsofarastheclaim  is  concerned ; 
but  where  they  are  to  be  paid  for  in  instal- 
ments, the  claim  must  be  filed  and  recorded 


within  six  months  of  the  time  that  the  last 
instalment  falls  due.  Newgass  v.  Atlantic 
&-  D.  R.  Co.,  56  Fed.  Kep.  676. 

But  where  a  general  creditor's  bill  is  filed 
against  a  company,  and  the  case  is  referred 
to  a  commissioner  to  take,  state,  and  report 
the  claims  with  their  priorities,  this  sus- 
pends the  running  of  the  six  months  within 
which  claims  must  be  filed  under  the  above 
section.  Newgass  v.  Atlantic  &^  D.  R.  Co., 
56  Fed.  Rep.  676.— Following  Seventh 
Nat.  Bank  v.  Shenandoah  Iron  Co.,  35  Fed. 
Rep.  436. 

35.  Matcrinl-nian's  notice  of  lien. 
—  A  person  entitled  to  a  lien  on  a  railway 
for  materials  furnished  for  its  construction 
may  in  his  notice  of  lien  confine  his  claim 
to  that  portion  or  section  of  the  road  in  the 
construction  of  which  his  material  was  used. 
G'ant-Powder  Co.  v.  Oregon  Pac.  R.  Co.,  43 
Am.  &>  Eng.  R.  Cas.  622,  42  Fed.  Rep.  470, 
14  Sawy.  ((/.  S.)  560, 8  L.  R.  A.  700.— Dis- 
tinguishing Basshor  v.  Baltimore  &  O.  R. 
Co.,  65  Md.  99. 

The  claim  of  a  materialman  of  a  lien 
upon  a  railroad  is  not  vitiated  by  the  fact 
that  his  claim  is  in  part  for  articles  not  the 
subject  of  a  lien,  where  it  is  shown  that  his 
claim  is  not  wilfully  false;  and  the  court 
will  permit  him  to  make  the  necessary  seg- 
regation by  throwing  out  the  value  of  such 
articles,  and  declaring  for  the  remainder. 
Gordon  Hard-ujare  Co.  v.  San  F''ancisco  &• 
S.  R.  R.  Co.,  47  Am.  &^  Eng.  R.  Cas.  293, 
86  Cal.  620,  21,  Pac.  Rep.  125.— Following 
Malone  v.  Big  Flat  Gravel  Min.  Co.,  76  Cal. 
578. 

Under  Ga.  Code,  §  1979,  before  any  lien 
can  attach  upon  real  estate  for  materials 
furnished  a  contractor  for  its  improvement, 
written  notice  must  be  given  to  the  true 
owner,  no  matter  where  he  resides.  Notice 
to  an  agent  is  not  sufficient.  Pou  v.  Cov- 
ington <S^•  M.  R.  Co.,  40  Am.  &->  Eng.  R. 
Cas.  610,  84  Crt.  311,  10  S.  E,  Rep.  744. 

3G.  Filing  account  of  work  done  or 
matcrialsfkirnislied.— Where  a  company 
gives  orders  for  different  kinds  of  material 
a  month  apart,  such  orders  are  deemed  sep- 
arate contracts ;  and  the  party  furnishing 
the  materials  cannot  have  a  mechanic's  lien 
under  the  Missouri  statute,  unless  separate 
accounts  be  filed  within  ninety  days  of  the 
last  item  of  each.  Central  Trust  Co.  v.  CAi- 
cago,  K.  (S-  T.  R.  Co.,  54  Fed.  Rep.  598. 

Charges  for  work  done  for  the  railroad 
under   two    distinct  contracts    cannot   be 


"^mmm 


'^^W' 
-t 


LIENS,  37,  38. 


291 


blended  together  in  one  lien.  b'Connor  v. 
Current  River  A'.  Co.,  in  Mo.  185,  20  S.  W. 
Rep.  16. 

A  lien  claim  must  be  substantially  correct 
and  sufficiently  definite ;  a  claim  filed  for 
an  amount  greatly  in  excess  of  the  amount 
due  is  not  a  compliance  with  the  statute. 
Kliiig  V.  Railway  Constr.  Co.,  7  Mo.  App. 
410.  Stubbsv.  Clarinda,  C.  S.  <5-  S.  IV.  R. 
Co.,  65  Io7ua  513,  22  A^.  IV.  Rep.  654. 

Furnishing  materials  creates  an  incipient 
lien,  but  to  perfect  it  a  general  contractor 
must,  in  conformity  with  Va.  Code  1873,  cli. 
115.  §§  3-"  inclusive,  within  the  pre- 
scribed time,  file  in  the  county  or  corpora- 
tion court  of  the  county  or  corporation  in 
which  is  situated  the  property  on  which  the 
lien  is  sought  to  be  secured,  and  in  the 
clerk's  office  of  the  chancery  court  of  Rich- 
mond city,  where  the  property  is  in  said 
city,  a  true  account  of  the  work  done,  or 
materials  furnished,  sworn  to  by  the  claim- 
ant or  his  agent,  witli  a  statement  attached, 
signifying  his  intention  to  claim  the  benefit 
of  the  lien,  and  setting  forth  a  description 
of  the  property  on  which  he  claims  a  lien, 
which  is  so  to  be  recorded  by  the  clerk. 
Boston  V.  Chesapeake  Sf  0.  R.  Co.,  12  Am. 
Sf  Eng.  R.  Cas.  263,  76  Va.  180. 

If  such  lien  is  given  on  the  property  of  a 
railroad  company  in  its  entirety,  it  can  only 
be  secured  by  filing  the  account  in  the 
proper  clerk's  office  of  every  county  or  cor- 
poration through  which  the  road  passes. 
Boston  V.  Chesapeake  <&*  O.  R.  Co.,  12  Am. 
&>  Eng.  R.  Cas.  263,  76  Va.  180. 

87.  Affidavit  to  cltiiiii  for  lien.— 
The  statutory  requirement  that  the  affi- 
davit for  a  mechanic's  lien  describe  the 
property  for  the  improvement  of  which 
labor  or  material  may  have  been  furnished 
is  not  complied  with  by  stating  generally 
that  it  was  for  a  line  of  street  railway  owned 
by  the  defendant  in  a  city  named,  it  appear- 
ing; that  the  defendant  had  several  lines  of 
railway,  to  either  of  which  such  designation 
would  be  equally  applicable.  Fleming  v. 
St.  Paul  City  R.  Co.,  47  Am.  <S-  Eng.  R. 
Cas.  290,  47  Minn.  124,  49  A'^,   W.  Rep.  6^.. 

The  requirement  that  the  affidavit  state 
"  to  and  for  "  whom  labor  or  material  may 
have  been  supplied,  and  the  contract  rela- 
tion of  the  lien  claimant  with  such  person, 
is  not  complied  with  by  a  statement  that 
material  was  furnished  "  to  and  for  the  con- 
struction of  the  St.  Paul  City  railway,"  at 
prices  agreed  upon  betw«en  the  plaintiS  and 


a  designated  contractor  with  the  St.  Paul 
City  railway  company,  the  lien  claimant 
being  a  subcontractor.  Fleming  v.  St.  Paul 
City  R.  Co.,  47  Am.  &"  Eng.  R.  Cas.  290, 
47  Minn.  124,  49  A^.   f-f''.  Rep.  661. 

6.  Foreclosure. 

38.  Jurisdiction,  mid  ri(;Iit  to  sue. 

— Suit  must  be  brought  on  a  contractor's 
lien  within  twelvei  months  from  the  time  it 
is  recorded.  The  mere  filing  of  a  declara- 
tion in  the  office  is  not  the  commencement 
of  a  suit,  unless  it  is  followed  by  proper  ser- 
vice upon  the  defendant.  Cherry  v.  North 
<S-  S.  R.  Co.,  II  Am.  &*  Eng.  R.  Cas.  636, 
65  Ga.  633. 

Though  a  road  may  have  been  seized  by 
the  governor,  under  an  act  of  the  legislature, 
for  failing  to  pay  interest  on  bonds  indorsed 
by  the  state,  this  does  not  abrogate  its  ob- 
ligation to  others,  and  a  failure  to  sue  within 
twelve  months  destroys  the  vitality  of  the 
lien.  Cherry  v.  North  &*  S.  R.  Co.,  11  Am. 
&•  Eng.  R.  Cas.  636,  65  Ga.  633. 

When,  by  a  statute,  a  lien  in  favor  of  a 
contractor  is  created  upon  that  portion  of 
the  road  constructed  by  him,  but  no  provi- 
sion is  made  for  the  enforcement  of  such 
lien,  the  lien  affords  the  basis  for  the  exer- 
cise by  a  court  of  chancery  of  its  jurisdiction 
to  coerce  payment  of  the  debt,  and  an  order 
by  the  court  in  an  action  to  establish  a  claim 
for  the  cost  of  construction  against  a  con- 
solidated company,  directing  the  sale  of  the 
entire  track  and  franchises,  is  unauthorized 
and  void.  Louisville,  N.  A.  &>  C.  R.  Co.  v. 
Boney,  39  Am.  &^  Eng.  R.  Cas.  168,  117  Ind. 
501,  20  N.  E.  Rep.  432,  3  L.  R.  A.  435. 

The  lien  given  by  Ind.  Act  of  1883,  as 
amended  in  1885,  is  not  confined  to  one 
county  in  cases  where  the  work  extends  to 
two  or  more  counties.  The  hen  fastens 
upon  an  entire  and  continuous  line  of  un- 
finished road,  and  may  be  enforced  in  any 
of  the  counties  through  which  the  road 
runs.  Midland  R.  Co.  v.  IVilcox,  43  Am. 
&^  Eng.  R.  Cas.  629,  122  Ind.  84,  23  A^.  E. 
Rep.  506. 

Where  the  subcontractor  was  entitled  to  a 
mechanic's  hen  for  work  done  in  the  con- 
struction of  a  railway— //^/</,  that  if  the  con- 
tractors had  entered  into  an  agreement  by 
which  they  became  personally  liable  to  pay 
his  claim,  such  contract  was  one  in  relation 
to  the  construction  of  a  railway  under 
Iowa  Code,  g  2583,  and  that  the  contrac- 
tors were  not  entitled  to  a  change  of  venue 


I 


g 


292 


LIENS,  39,  40. 


i 


» 

hI 

11 

m 

- 

■ 

1 

1 

1 

i 

,5 

f 

to  the  county  of  their  residence.  Vau^t^hn 
V.  Smith,  7  Am.  &^  Eng.  R.  Cas,  82,  58  Iowa 
553,  12  .V.  ;F.  AVj^.  604. 

The  lien  created  by  Mo.  Rev.  St.  §  3200 
is  not  restricted  to  persons  who  furnish 
materials  or  do  labor  within  the  state. 
Where  part  of  a  road  lies  without  the  state, 
the  lien  may  be  enforced  against  the  part 
within  the  state,  though  the  work  was  done 
or  materials  furnished  out  of  the  state. 
St.  Louis  li.  t^  C.  Co.  V.  Memphis,  C.  &-  j\\ 
IV.  A\  Co.,  72  Mo.  664. —  Reviewed  in 
Knapp  V.  St.  Louis,  K.  C.  &  N.  R.  Co.,  7 
Am.  &  Eng.  R.  Cas.  394,  74  Mo.  374. 

A  lien  arising  under  N.  Y.  Act  of  1844, 
ch.  305,  as  amended  in  1870,  ch.  529,  cannot 
be  enforced  in  the  superior  court  of  the  city 
of  Buffalo,  as  the  court  has  no  jurisdiction. 
Fo7vUr  V.  Buffalo  (S-  /.  R.  Co.,  i  Sheld. 
{N.  Y.)  525. 

Where  the  object  of  a  suit  is  to  enforce 
an  alleged  mechanic's  lien,  the  suit  is  one 
of  equitable  jurisdiction.  Bailey  Constr. 
Co.  V.  Purcell,  88  Va.  300,  13  5.  £".  Rep.  456. 
39.  Parties.— The  Texas  Act  of  Febru- 
ary 18,  1879,  creates  such  privity  between 
mechanics,  laborers,  and  operatives  and  a 
railway  company  for  whose  benefit  the 
labor  contemplated  by  the  act  is  performed 
as  entitles  the  former  to  maintain  an  action 
directly  against  such  company  to  enforce 
the  lien  which  the  strtute  gives  for  their 
benefit.  Austin  &*  N.  W.  R.  Co.  v.  Dan- 
iels, 62  Tex.  70. — Following  Texas  &  St. 
L.  R.  Co.  V.  Allen,  i  Tex.  App.  (Civ.  Cas.) 
291. 

The  lien  given  by  t>'e  Missouri  statute  to 
mechanics  and  material-men  is  not  so  far 
assignable  as  to  enable  the  assignee  to  fix  a 
lien  on  the  property  subject  to  lien  by  com- 
pliance with  the  provisions  of  the  statute. 
The  lien  is  a  "  personal  right  given  to  the 
material-man  or  laborer  for  his  own  protec- 
tion, and  the  right  to  create  it  cannot  be 
assigned  or  transferred."  Grisivoldv.  Car- 
thage,]. &*  S.  C.  R.  Co.,  18  Mo.  App.  52.— 
Followed  in  Brown  W.Chicago,  S.  F.  &  C. 
R.  Co.,  36  Mo.  App.  458. 

Where  a  railroad  is  in  the  hands  of  a  re- 
ceiver, and  a  suit  is  brought  to  foreclose  a 
mechanic's  lien  on  the  road,  under  Mo.  Rev. 
St.  §  6747,  the  receiver  is  the  only  neces- 
sary defendant.  Central  Trust  Co.  v.  Chi- 
cago K.&*  T.  R.  Co.,  54  Fed.  Rep.  598. 

The  lien  may  be  enforced  by  suit  against 
a  purchaser  of  the  railroad  within  one  year 
after  the  lien  accrued,  although  his  title 


was  acquired   without   notice  of  the   lien. 
Brown  v.  Buck,  54  Ark.  453,  16  S,  II'.  Rep. 

195. 

One  who  has  acquired  an  interest  in  tiie 
leasehold  property  sought  to  be  charger! 
with  the  lien,  by  virtue  of  the  foreclosure 
of  a  deed  of  trust,  executed  before  the  lien 
attached,  is  properly  allowed  to  become  a 
co-defendant  in  the  suit,  and  to  have  iiis 
rights  adjudicated.  A'ling  v.  Railway  Constr. 
Co.,  4  Mo.  App.  574. 

Where  a  subcontractor  institutes  a  fore- 
closure proceeding  against  two  parties,  one 
as  contractor  and  the  other  as  owner,  to 
support  a  special  judgment  against  pro].- 
erty,  the  plaintiff  must  show  a  contract  be- 
tween the  owner  and  the  contractor.  Kliiig 
v.  Railway  Constr.  Co.,  4  Mo.  App.  574. 

40.  Pleadiiijir  and  evidence.  -  .K 
complaint,  to  warrant  a  judgment  in  rem 
on  a  mechanic's  lien,  must  show  that  the 
account  was  filed  in  the  clerk's  office  wiiliin 
ninety  days,  and  i,  full  compliance  with  tiie 
statute  in  other  respects.  Arkansas  C.  R. 
Co.  V.  McKii-.  30  Ark.  682. 

Where  a  lien  upon  a  railroad  was  claimed 
by  plaintiffs,  in  the  double  character  of  con- 
tractors and  material-men,  for  work  done 
and  materials  furnished  in  constructing  the 
railroad,  and  where  the  declaration  against 
the  company  and  the  immediate  contractor 
under  the  company,  in  a  joint  suit  against 
them,  brought  to  foreclose  the  lien,  showed 
that  the  plaintiffs  were  only  subcontractors, 
and  both  the  claim  of  lien  and  the  declara- 
tion were  for  a  gross  sum,  without  disclos- 
ing what  part  of  it  was  for  work  and  wiiat 
part  for  materials,  and  there  was  no  offer  to 
amend  the  declaration  so  as  to  foreclose  the 
lien  for  so  much  of  the  gross  sum  as  repre- 
sented the  price  of  materials  only,  there 
was  no  error  in  denying  a  foreclosure,  nor 
in  dismissing  the  action  as  to  the  railroad 
company.  Carter  v.  Ro>ne&*  C.  Constr.  Co., 
SgGa.  158,  15  S.  E.  Rep.  36. 

A  petition  by  a  subcontractor  to  enforce 
a  lien  against  a  railroad  is  defective  where 
it  only  shows  the  filing  of  notice  with  tlie 
circuit  clerk,  without  averring  that  the 
president  and  secretary  of  the  company  did 
not  reside,  or  could  not  be  found,  in  the 
county,  as  required  by  111.  Rev.  St.  1874,  p. 
672,  §§  53,  54.  Cairo  6-  St.  L.  R.  Co.  v. 
Cauble,  85  ///.  555. 

A  petition  for  the  foreclosure  of  a  me- 
chanic's lien  IS  fatally  defective  which  fails 
to  state  that  something  was  due  for  the 


■;'.*■; 


LIENS,  41. 


293 


t:^ 


services  on  which  the  tien  was  founded  at 
the  time  the  action  was  begun.  A  state- 
ment for  a  lien  which  is  attached  to  the 
petition  as  an  exhibit,  but  which  was  made 
out  and  filed  some  months  before  the  be- 
ginning of  the  action,  and  in  which  it  is  al- 
leged that  something  was  due  when  the 
statement  was  made,  cannot  supply  the 
place  of  an  averment  that  something  was 
due  when  the  action  was  begun.  Stubbs  v. 
aarinda,  C.  S.  &•  S.  W.  K.  Co.,  20  Am.  6- 
Eni;.  K.  Cas.  492,  62  Iowa  280,  17  A'.  IV. 
Kep.  530. 

A  petition  seeking  to  enforce  a  mechan- 
ic's lien  which  shows  that  the  road  was  in- 
corporated under  the  laws  of  another  state, 
and  that  the  lien  is  for  materials  furnished 
in  a  certain  county  of  the  state,  is  not  bad 
on  demurrer  as  seeking  to  enforce  a  lien  on 
a  part  of  a  road  in  the  state,  as  the  court 
will  not  assume  that  there  is  any  part  uf  the 
road  in  the  state  except  in  the  county 
named.  Ireland  v.  Atchison,  T.  &^S.  F.  A'. 
Co.,  20  Am,  &"  Eng.  Ji.   Cas.   493,  79  AIo. 

572. 

The  complaint  alleged,  in  substance, 
that  certain  described  land,  against  which 
the  lien  was  invoked,  was  necessary  to  the 
convenient  and  ordinary  use  of  the  defend- 
ant's depot  buildings.  The  answer  alleged  as 
a  separate  defense  that  the  land  in  question 
was  "  incident  to  its  franchise,  and  useful 
and  indispensable  and  necessary,  and  facili- 
tates the  successful  operation  of  said  rail- 
road." Held,  that  as  the  latter  allegation 
was  not  admitted  by  the  complaint,  it  was 
error  to  strike  out  a  replication  which  denied 
it.  Helena  Lumber  Co.  v.  Montana  C.  K. 
Co.,  10  Mont.  81,  24  Pac.  Rep.  702. 

A  bill  to  enforce  a  mechanic's  lien  on 
railroad  property  referring  to  the  notices 
filed,  as  prescribed  by  statute,  and  setting 
out  in  detail  the  work  and  labor  performed 
and  materials  furnished,  is  sufficient,  though 
it  does  not  specifically  set  out  the  particular 
items  stated  in  the  notice.  Texas,  S.  F.  <?~» 
A'.  A'.  Co.  V.  Orman,  3  N.  Mex.  365,  9  Pac. 
Rep.  595. 

In  declarations  by  a  subcontractor  against 
the  owner,  under  Va.  Mechanics'  Lien  La-,v^ 
•  it  is  unnecessary  to  aver  that  an  account,  al- 
leged to  have  been  furnished  defendant,  was 
approved  by  the  general  contractor ;  or  that 
the  latter,  after  ten  days'  notice  thereof,  had 
failed  to  object  to  it ,  or  that  the  same  had 
been  ascertained  to  be  due  from  the  latter  to 
the  subcontractor,  according  to  section  6. 


These  are  matters  of  defense.  Norfolk  &• 
W.  K.  Co.  V.  Howison,  81  Va,  125. 

It  was  competent  for  the  plaintiff  to  in- 
quire into  the  disposition  of  the  various 
lots  of  ties  furnished  the  company,  to  es- 
tablish the  fact  that  the  nuT^ber  for  which 
judgment  had  been  received,  and  which 
were  included  in  the  engineer's  estimates, 
did  not  embrace  the  ties  in  controversy, 
Smyth  v.  Ward,  46  Iowa  339. 

Where,  in  an  action  by  the  contractor  to 
enforce  a  lien  against  the  railroad,  a  count 
in  the  petition  tenders  the  issue  whether  the 
engineer  had  made  an  estimate  and  certifi- 
cate of  the  work,  the  plaintiff,  before  intro- 
ducing evidence  of  the  amount  and  value 
of  the  work,  must  first  show  that  the  engi- 
neer, after  demand  upon  him,  refused  to 
make  the  estimate  and  certificate,  as  required 
by  the  contract.  Williams  v.  Chicago,  S. 
F.  (S-  C.  R.  Co.,  112  Mo.  463,  20  S.  W.  Rep. 
631. 

But,  under  Aguantitm  meruit  count  for  the 
value  of  work  and  materials  furnished,  the 
fact  that  the  engineer  has  made  the  esti- 
mate and  certificate  is  a  matter  of  defense. 
Williams  v.  Chicago,  S.  P".  iS^  C.  R.  Co.,  ii^ 
Mo.  463,  20  S.  W.  Rep.  631. 

Plaintiff  had  a  right,  under  either  count 
of  the  petition,  to  show  the  amount  of  his 
work  and  labor,  and  was  not  precluded 
from  doing  so  merely  because  the  defend- 
ant pleaded  the  estimate  and  certificate  of 
the  engineer.  Williams  v.  Chicago,  S.  F. 
&>  C.  R.  Co.,  1 1 2  Mo.  463,  20  S.  W.  Rep.  631. 

So  plaintiff  could  show,  under  either  count 
of  the  petition,  that  the  engineer  miscon- 
strued the  contr  ct  in  his  classification  of 
the  work,  and  had  not  measured  the  work 
according  to  the  contract ;  and  an  allegation 
of  fraud  was  not  necessary  to  entitle  him  to 
introduce  such  evidence.  Williams  v.  Chi- 
cago,  S.  F.  &^  C.  R.  Co.,  112  Mo.  463,  20  S. 
W.  Rep.  63 1. 

A  copy  of  a  notice  of  mechanics'  lien  in 
which  the  signatures  are  not  proved  or  ac- 
knowledged is  not,  though  certified  by  the 
county  clerk,  admissible  as  evidence  of  the 
due  filing  of  the  proper  notice  of  lien. 
Sampson  v.  Buffalo,  N.  V.  <S-  P.  R.  Co.,  2 
Hun  (JV.  V.)  512,  4  T.&^  C.  600. 

41.  Defeuses. — A  bill  filed  to  enforce  a 
mechanic's  lien  is  not  barred  by  another 
suit  pending,  where  it  is  only  for  the  collec- 
tion of  the  debt.  Parmelec  v.  Tennessee  »S-* 
S.  V.  R.  Co.,  13  Lea  (Tenn.)  600. 

The  fact  that  only  a  part  of  the  material 


I 


<rr    f'      '" 


2D4 


LIENS,  42. 


5i    i 


furnished  a  railroad  is  used  will  not  prevent 
a  lien  attaching  for  the  whole  amount  fur- 
nished. Neilson  v.  Iowa  Eastern  R.  Co.,  51 
/(Tzaa  184,  714. — Reviewed  in  Hale  v.  Bur- 
lington, C.  R.  &  N.  R.  Co.,  2  McCrary  (U. 
S.)  558,  13  Fed.  Rep.  203. 

A  principal  contractor  cannot  defeat  the 
liens  of  those  whose  debtor  he  is  for  work 
and  materials  by  asserting  the  lien  of  a 
mortgage  executed  by  the  owner  by  whom 
he  was  employed  to  build  a  house  or  a  rail- 
road. He  cannot  defeat  their  liens  by  as- 
serting a  lien  superior  to  them,  no  matter 
how  he  may  acquire  such  superior  lien. 
Farmers'  L.  &^  T.  Co.  v.  Canada  &*  St.  L, 
K.  Co.,  47  ^hn.  ^S^•  Jing.  A'.  Cas.  271,  127  Inci. 
250,  26  A'.  £.  Rep.  784. 

Failure  of  the  clerk  of  the  circuit  court 
to  forward  to  the  secretary  of  state  a  copy 
of  an  account  filed  for  mechanics'  lien 
against  a  railroad,  as  required  by  Mo.  Rev. 
St.  §  3203,  will  not  defeat  the  lien.  St. 
Louis  B.  (S-  C.  Co.  V.  Memphis,  C.  &>  N.  IV. 
R.  Co.,  72  AIo.  664. 

The  facts  of  a  general  contractor's  failure, 
and  the  owner's  necessity  to  complete  the 
work,  docs  not  affect  the  owner's  liability 
for  the  amount  due  the  subcontractor  for 
labor  or  materials.  Shenandoah  Valley  R. 
Co.  V.  Miller,  80  Va.  &21. 

Notice  and  affidavit  having  been  furnished 
as  required  by  law,  by  the  subcontractor  to 
the  owner,  it  makes  the  latter  liable  for  the 
amount  named  in  the  affidavit,  without  re- 
gard to  the  state  of  accounts  between  him 
and  the  general  contractor.  Norfolk  <S^  IV. 
R.  Co.  V.  Howison,  81  Va.  125. 

A  railroad  contractor  sublet  a  part  of  the 
road  which  he  was  to  construct,  and  sub- 
sequently the  subcontractor  failed  to  pay 
laborers  and  material-men,  and  they  filed 
notice,  under  the  statute,  of  a  lien.  Held, 
that  the  company  could  not  be  made  liable, 
unless  it  appeared  that  there  was  money 
due  the  contractor  and  the  subcontractor 
at  the  time  the  notices  were  filed.  Samp- 
son V.  Buffalo,  N.  V.  &■'  P.  R.  Co.,  13  Hun 
(N.  V.)  280,  4  T.  &^  C.  600. 

42.  Verdict,  judgment,  sale,  etc.— 
(i)  Verdict  and  judgment. — As,  under  Ga. 
Code,  §  1990,  the  verdict  must  set  forth  the 
lien  allowed,  and  the  judgment  and  execu- 
tion must  be  awarded  accordingly,  a  verdict 
and  judgment  which  attempt  to  set  up  and 
enforce  a  lien  upon  a  specified  portion  of  a 
railroad  are  void  upon  their  face,  so  far  as 
the  contractor's  special  lien  is  concerned. 


farmers'  L.  &*  T.  Co.  v,  Candler,  47  Am, 
&*  Eng.  R.  Cas.  296,  87  Ga.  241,  13  S.  E. 
Rep.  560. 

A  verdict  describing  the  lien  intended  to 
be  allowed  thereby  in  these  terms  :  "  That 
the  plaintiff  have  a  lien  as  a  contractor  to 
build  railroads  upon  that  part  of  the  Gaines- 
ville &  Dahlonega  railroad  from  its  termi- 
nus in  the  city  of  Gainesville  to  the  Chat- 
tahoochee river,  in  Hall  county,  including 
its  right  of  way,  roadbed,  depot  grounds, 
and  all  other  property  belongiiig  to  said 
railroad  company,  for  the  sum  aforesaid," 
etc.,  does  not  set  up  a  lien  upon  the  whole 
railroad  referred  to,  but  only  attempts  to 
do  so  upon  the  part  extending  from  Gaines- 
ville to  the  Chattahoochee  river.  Farmers' 
L.  &•  T.  Co.  V.  Candler,  47  Am.  &*  E/i^'-.  J\\ 
Cas.  296,  87  Ga.  241,  13  5.  £.  Rep.  560. 

Under  the  Illinois  statute,  where  a  sub- 
contractor proceeds  to  enforce  a  lien  against 
a  railroad,  the  suit  must  be  begun  within 
the  three  months  to  which  the  lien  is  lim- 
ited. In  such  cases  it  is  not  necessary  that 
the  notice  required  by  the  statute  should 
be  accompanied  with  a  copy  of  the  contract 
between  the  contractor  and  the  company. 
The  statute  only  refers  to  the  contract  be- 
tween the  contractor  and  the  subcontractor. 
The  decree  should  be  against  the  company 
and  the  contractor,  and  the  property  of  the 
company  should  only  be  sold  upon  a  failure 
to  pay  the  amount  of  the  lien  within  the 
time  fixed  by  the  court.  Cairo  &>  St.  L.  A', 
Co.  V.  Cauble,  4  ///.  App.  133. 

The  statement  filed  with  the  clerk  is  the 
limit  of  recovery  only  with  respect  to  pur- 
chasers and  encumbrancers.  Neilson  v. 
Iowa  Eastern  R.  Co.,  51  Iowa  184.  714. 

A  railroad  let  a  contract  for  the  erection 
of  a  building,  and  a  person  who  furnished 
materials  filed  a  lien  against  the  building, 
and  commenced  an  action  against  the  com- 
pany. Before  he  obtained  judgment  the  con- 
tractor filed  a  lien  upon  the  same  building 
for  an  amount  including  the  former;  and 
judgment  was  taken  in  both  cases  by  default. 
Held,  that  the  two  judgments  were  not  in- 
compatible; but  the  court  should  provide  for 
the  proper  distribution  of  the  funds  arising 
from  a  sale  of  the  property.  Hill  v.  La 
Crosse  &*  M.  R.  Co.,  11   Wis.  214. 

mechanic's  lien  on  a  rail- 
notice  is  filed  only  in  one 
be  foreclosed  against  the 
whole  line  of  road  situate  within  the  state, 
and  the  whole  of  that  part  of  the  road  sold ; 


(2)  Sale.—k 
road,  although 
county,    must 


w^'Wm^ 


LIEisS,  43,44. 


JDS 


a  part  of  such  part  cannot  be  sold.  Farm- 
ers' L,  &*  T.  Co.  V.  Canada  6-  St.  L.  R.  Co. , 
47  Am.  &*  Eng.  K.  Cas.  271,  127  Ind.  350,  26 
N.  E.  Rep.  784. 

It  is  otherwise,  however,  as  to  the  rolling 
stock  and  other  movable  property.  While 
all  of  these  are  subject  to  the  lien,  only 
so  much  of  them  need  be  sold  as  m.iy  be 
necessary  to  satisfy  the  judgment.  Knapp 
V.  St.  Louis,  K.  C.  <S-  A'.  R.  Co.,  7  Am.  &^ 
Eng.  R.  Cas.  394,  74  ^^0.  374.— Reviewing 
St.  Louis  B.  &  C.  Co.  V.  Memphis,  C.  & 
N.  W.  R.  Co..  72  Mo.  664.— Followed  in 
Ireland  v.  Atchison,  T.  &  S.  F.  R.  Co.,  20 
.'^m.  &  Eng.  R.  Cas.  493,  79  Mo.  572. 
Quoted  in  Farmers'  L.  &T.  Co.  v.  Candler, 
87  Ga.  241. 

A  mechanic's  lien  for  repairing  an  article 
extends  to  the  entire  article ;  and  the  whole 
of  such  article  must  be  sold  in  ordur  to 
enforce  the  lien.  Farmers'  L.  &»  T.  Co.  v. 
Canada  (S^  St.  L.  R.  Co.,  47  Am.  &»  Eng. 
R.  Cas.  271,  127  Ind.  250,  26  A^.  E.  Rep.  784. 

Tills  court  will  not  direct  the  sale  of  lands 
required  for  the  use  of  a  railway  company 
to  enforce  the  payment  of  a  mechanic's  lien 
for  work  done  on  the  property ;  in  such  a 
case  the  decree  will  only  be  for  payment  of 
the  amount  found  due,  with  costs.  Breeze 
V.  Mid/and  R.  Co.,  26  Grant's  Ch.  {U.  C.) 
225. 

Where  railroad  property  is  about  to  be 
sold  under  a  mechanic's  lien,  if  the  law  only 
permits  other  lien  holders  to  share  in  the 
proceeds  who  have  reduced  their  claims  to 
judgments,  the  court  may  stay  the  sale  for 
a  time  to  permit  judgments  to  be  taken  on 
other  claims.  Eaton  v.  Cleveland,  St.  L.  &* 
K.  C.  R.  Co.,  41  Fed.  Rep.  421. 

m.  LABOREB8'  LIENS. 

I.   IV/io  Entitled  to  a  Lien. 
43.    Constitutionality     and     con- 
Ntriiction    of    statutes. — Mo.     Act    of 

Feb.  24,  1853,  §  12,  giving  laborers  a  lien 
upon  moneys  due  from  the  company  to 
subcontractors,  is  constitutional,  when  ap- 
plied to  railroad  companies  previously 
chartered.  Peters  v.  St.  Louts  S^  /.  Af.  R. 
Co.,  23  Mo.  107.— Quoted  in  Luther  v. 
Saylor,  8  Mo.  App.  424;  Branin  v.  Con- 
necticut &  P.  R.  R,  Co.,  31  Vt.  214. 

It  is  not  necessary  that  the  thirty  days' 
labor  for  which  a  railroad  may  be  held  liable 
under  that  act  should  be  performed  upon 
thirty  consecutive  days.  Peters  v.  St,  Louis 
&'  /.  M.  R.  Co.,  24  Mo.  586. 


New  Jersey  Corporation  Act,  §  63,  pro- 
vides that  "in  case  of  the  insolvency  of  any 
corporation  the  laborers  in  the  empjoy 
thereof  shall  have  a  lien  upon  the  assets 
thereof  for  the  amount  of  wages  due  to 
them  respectively,  which  shall  be  paid  prior 
to  any  other  debt  or  debts  of  said  company ; 
and  the  word  '  laborers 'shall  be  construed 
to  include  all  persons  doing  labor  or  service 
of  whatever  character,  for,  or  as  workmen 
or  employes  in  the  regular  employ  of,  such 
corporation."  Held:  (i)  that  the  lien  so 
given  comes  into  existence  at  the  time  that 
the  court  adjudges  the  insolvency  of  the 
company  accrued  ;  (2)  that  persons  holding 
claims  for  wages  who  are  not  in  the  employ 
of  the  company  when  it  becomes  insolvent 
can  have  no  lien  ;  (3)  that  a  lien  for  wages 
is  not  forfeited  by  embracing  other  items 
with  it ;  (4)  but  laborers  in  the  employ  of 
a  company  when  it  becomes  insolvent  have 
a  prior  lien  nodifTeience  how  long  since  the 
wages  were  earned.  Delaware,  L.  &*  IV. 
R.  Co.  V.  Oxford  Iron  Co.,  i  Am  (S^•  Eng.  R. 
Cas.  205,  33  N.  J.  Eq.  192.— Following 
Bedford  v.  Newark  Machine  Co.,  16  N.  J. 
Eq.  117. 

Interest  cannot  be  allowed  on  the  claim 
for  wages  under  the  above  statute,  which 
has  accrued  before  the  lien  attaches.  Dela- 
ware, L.  &*  IV.  R.  Co.  v.  Oxford  Iron  Co., 
I  Am.  &^  Eng.  R.  Cas.  205,  33  A'./.  Eg.  192. 

The  privilege  conferred  by  N.  Car.  Code, 
§  1942,  is  restricted  to  laborers,  and  for  work 
done  for  thirty  days  or  less  in  constructing 
a  road,  and  the  company  can  in  no  event  be 
held  liable  for  payment  of  accounts  due  by 
the  contractors  for  materials.  Moore  v.  Cape 
Fear  6^  Y.  V.  R.  Co.,  112  A'.  Car.  236,  17  S. 
E.  Rep.  1 52. 

Section  35  of  article  16  of  the  Texas 
Constitution  of  1876  did  not  give  to  laborers 
on  railroads  a  lien  on  the  property  of  the 
company  on  which  they  labored,  as  was 
provided  by  article  37  to  mechanics,  artisans, 
and  material-men.  Central &<•  M.  R.Co.v. 
Hcnning,  52   Tex.  466. 

The  lien  given  to  mechanics  and  work- 
men by  the  act  of  February  18,  1879,  was 
intended  to  apply  only  to  labor  done  or 
materials  furnished  after  the  passage  of  that 
act.  Central  &*  M.  R.  Co.  v.  Henning,  52 
Tex.  466. 

44.  Who  is  a  "laborer,"  **worl«- 
nian,"  or  "servant."* — The  provision 

*  Who  are  "  laborers,  workmen,  and  servants  " 


206 


LIENS,  45,  46. 


of  Ky.  Act  of  1 888  that  "all  persons  who 
perform  labor  or  furnish  labor  "  in  the  con- 
struction of  a  railroad  shall  have  a  lien,  is 
not  limited  to  persons  who  perform  manual 
labor,  but  will  include  the  services  of  a  civil 
engineer.  Central  Trust  Co.  v.  Richmond, 
N.,  I.  <&-  B.  K.  Co.,  54  Fed.  Rep.  723. 

A  teamster  employed  by  a  contractor  in 
the  construction  of  a  railroad  is  a  laborer 
within  the  meaning  in  which  that  term  is 
used  in  the  statute.  Mann  v.  Burt,  35  Kan. 
10,  \o  Pac.  Rep.  95. 

A  foreman  or  superintendent  of  a  com- 
pany of  laborers  who  remains  with  them 
directing  their  work,  and  sometimes  work- 
ing himself,  is  within  the  meaning  and  in- 
tent of  the  word  "laborer"  as  used  \\\  the 
Tex.  statute.  Texas  &•  St.  L.  R.  Co.  v. 
Allen,  I  Tex.  App.  {Civ.  Cas.)  291. 

45.  Who  is  not. — A  person  who  con- 
tracts to  put  up  wires  for  a  telegraph  com- 
pany is  not  an  employe  of  the  company 
within  Indiana  laws  allowing  a  lien  for  em- 
ployes' work  and  labor.  Vane  v.  New- 
coiiibe,  132  U.  S.  220,  10  Sup.  Ct.  Rep.  60. — 
Reviewed  in  Tod  v.  Kentucky  Union  R. 
Co..  52  Fed.  Rep.  241,  6  U.  S.  App.  186,  3  C. 
C.  A.  60. 

Contractors  who  supply  laborers  and 
teams  to  work  on  a  railroad  by  the  day  are 
not  "  laborers "  or  employes  within  the 
meaning  of  Kentucky  Act  of  March  20, 
1876,  giving  a  lien  for  work  done  or  mate- 
rials furnished  in  keeping  a  railroad  as  a 
going  concern ;  but  such  persons  may  have 
a  lien  under  the  act  of  March  27,  1888,  giv- 
ing a  lien  to  persons  who  furnished  labor  or 
materials  for  the  construction  or  improve- 
ment of  any  railroad  or  other  public  im- 
provement. Tod  V.  Kentucky  Union  R.  Co., 
52  Fed.  Rep.  241.  6  U.  S.  App.  186,  3  C.  C. 
A.  60. — Reviewing  Vane  v.  Newcombe,  132 
U.  S.  220,  10  Sup.  Ct.  Rep.  60;  Louisville, 
E.  &  St.  L.  R.  Co.  V.  Wilson,  138  U.  S.  501, 
1 1  Sup.  Ct.  Rep.  405. 

One  who  contracts  to  haul  and  deliver 
lumber  on  the  cars  at  an  agreed  price,  to  be 
paid  when  it  is  sold  in  market  and  the 
avails  received,  has  no  lien  thereon  at  com- 
mon law  for  his  labor.  Stillings  v.  Gibson, 
63  A^.  H.  I. 

A  person  who  takes  a  contract  to  do  cer- 
tain work  on  a  railroad,  and  then  employs 

within  meaning  of  Mechanics'  Lien  Laws,  see 
notes.  3a  Am.  Rep.  264;  18  L.  R.  A.  305.  See 
also  57  Am.  &  Eng.  R.  Cas.  440,  abstr. 


others  to  dc  it  or  assist  in  doin^  it,  is  not  a 
"laborer"  within  the  meaning  of  New 
York  Act  of  1850,  ch.  i\o,  §  10.  People  v. 
Remington,  10  A'.  Y.  S.  R.  310,  45  Hun  329; 
affirmed  in  109  A'.  Y.  631,  mem.,  16  A'.  E. 
Rep.  680,  mem. 

One  who  performs  a  contract  to  deliver 
lumber  by  hiring  teams  and  drivers,  but 
who  does  no  hauling  himself,  is  not  a  "  la- 
borer" within  the  meaning  of  Pa.  Act  of 
April  9,  1872,  and  is  not  entitled  to  the 
preference  provided  by  that  act.  In  the 
contemplation  of  the  act,  "laborers"  are 
those  who  perform  with  their  own  hands 
the  contract  they  make  with  the  employer. 
Wentroth's  Appeal,  82  Pa.  St.  469. 

A  civil  engineer  is  not  a  "labore"  or 
"  workman  "  within  the  meaning  of  t'  ;  Pa. 
resolution  of  January  21,  1843,  and  its  sup- 
plement, the  act  of  April  4,  1862,  and  is  not 
entitled  to  the  lien  provided  thereby  upon 
the  property  of  a  railroad  for  the  value  of 
his  services  rendered  in  its  construction. 
Pennsylvania  &•  D.  R.  Co.  v.  Leuffer,  84  Pa, 
St.  168. 

Texas  Const,  art.  16,  §  35,  which  requires 
the  legislature  to  p;iss  laws  to  protect  la- 
borers on  railroads  and  other  public  works, 
and  the  act  of  Aug.  7,  1876,  passed  in  pur- 
suance of  the  ccjnstiiutional  provision, 
have  no  reference  to  contractors  or  build- 
ers.   Tyler  Tap  R.  Co.  v.  Drtscol,  52  Tex.  13. 

Under  a  statute  which  gives  a  lien  to  "me- 
chanics, laborers,  and  operators  who  have 
performed  labor  or  work  with  tools,  tCiwi.  ?, 
or  otherwise    in   the  construction  of  . 
railroad,"  a  "laborer"  is  one  who  ptiii       r. 
manual  services  in  the  construction  .>•  rl' 
railroad,  and  not  one  who  may  work  iii  \.x( 
paring  ties  to  be  furnished  to  and  used  by 
the  railroad  at  a  price  named.     St.  Louis, 
A.  &>  T.  R.   Co.  v.  Matthews,  40  Am.  6^ 
Eng.  R.  Cas.  523,  75  Tex.  92,  \2  S.  W.  Rep. 
976. 

40.  Work  iiiiist  be  done  under 
contrnct  with  owner  or  coiitructor. 
— The  remedy  aflforaed  is  summary  and 
should  be  strictly  construed,  and  the  act  is 
not  to  be  so  extended  or  construed  as  to 
give  to  the  laborer  employed  in  ditching, 
building  levees  or  railroad  lines,  a  lien  upon 
the  real  estate  tor  his  labor,  where  the  labor 
was  done  under  a  contract  with  the  state, 
but  only  when  the  contract  was  with  the 
owner  of  the  lands  upon  which  the  work 
was  done.  Dano  v.  Mississippi,  O.  &r*  R. 
R.  R.  Co.,  27  ArA.  564. 


LIENS,  47  4». 


No  lien  enures  under  chapter  3132,  Fla. 
Laws,  in  favor  of  a  laborer  for  a  subcon- 
tractor against  a  railroad  company,  where 
the  only  privity  of  contract  existing  is  be- 
tween the  company  and  the  first  contractor. 
Hcnvard^.  Moore,  20  Fla.  163. 

Even  though  the  contractor  has  fully 
paid  the  subcontractor  the  amount  due 
under  his  contract,  and  though  the  railroad 
company  is  indebted  to  the  contractor  in  a 
sum  exceeding  the  amount  of  the  claim  of 
the  laborer  against  the  subcontractor.  Ut- 
ter v.  Crane,  37  Iowa  631. 

Under  the  provisions  of  the  Ga.  Me- 
chanics' Lien  Act  of  1869,  a  mechanic  em- 
ployed by  the  lessee  of  a  railroad  is  entitled 
to  a  lien  only  upon  and  to  the  extent  of  the 
interest  of  such  lessee  in  the  road.  Breed 
v.  Nagle,  46  Ga.  1 1 2. 

2.   What  is  Subject  to  the  Lien. 

47.  Bridges. — The  Wisconsin  legisla- 
ture has,  under  Wis.  Const,  art.  11,  §  i,  the 
power  to  enact  laws  for  the  enforcement  of 
liens  for  labor  upon  bridges  or  other  struc- 
tures of  a  railway  company,  altliough  the 
same  are  part  and  parcel  of  its  railway,  and 
essential  to  the  full  and  complete  operation 
thereof.  Purtell  v.  Chicago  F.  &*  B.  Co., 
39  .4m.  &*  Eng.  R.  Cas.  242,  74  IVis.  132,42 
N.  IV.  Kep.  265. 

There  is  no  rule  of  public  policy  in  Wis- 
consin against  enforcing  a  laborer's  lien 
upon  any  bridge  or  otlier  structure  of  a 
railroad  company,  when  such  structure  is 
part  and  parcel  of  the  railroad,  even  though 
the  enforcement  of  the  lien  may  interfere 
with  the  operation  of  the  railroad.  Purtell 
v.  Chicago  F.  &*  B.  Co.,  39  Am.  &-  Eng.  R. 
Cas.  242,  74  Wis.  132,  42  A''.  W.  Rep.  265. 

48.  Street  railway.  —  A  laborer  can 
have  no  lien  upon  a  street  railway,  under 
Wash.  Code  i88r,  ch.  138,  unless  the  per- 
son causing  the  railway  to  be  constructed 
lias  some  estate  in  the  land  over  which  it  is 
laid.  (Scott,  J.,  dissenting.)  Front  St. 
Cable  R.  Co.  v.  Johnson,  47  Am.  &^  Eng.  R. 
Cas.  287,  2  Wash.  112,  25  Pac.  Rep.  1084. 

3.  I^otice  of  Claim. 

49.  Filing  statement  of  claim.— In 

order  to  obtain  a  lien  upon  a  railroad,  a  la- 
borer or  material-man  is  only  required  to 
file  notice  in  the  recorder's  office  in  the 
counvy  where  he  furnished  the  material  or 
fill   :lie  work    through   which   such    road 


runs,  and  then  such  lien  extends  to  the  en- 
tire line  of  the  road  in  the  state.  In  case 
of  a  sale  of  the  road  and  a  transfer  of  the 
lien  to  the  fund  derived  from  the  sale,  by 
order  of  the  court  ordering  the  sale,  the 
lien  is  transferred  to  the  whole  fund  and 
not  to  a  part.  Farmers'  L.  &•  T.  Co,  v.  Can- 
ada 6-  St.  L.  R.  Co.,  47  Am.  6^  Eng.  R.  Cas. 
271,  127  Ind.  250,  26  N.  E,  Rep.  7S4.— Dis- 
approving Boston  11.  Chesapeake  &  O,  R. 
Co.,  76  Va.  180.  Following  Louisville, 
N.  A.  &  C.  R.  Co.  V.  Boney,  117  Ind.  501. 

The  requirement  of  the  statute  that  the 
written  settlement  with  the  subcontractor 
shall  be  given  to  the  owner  and  contractor 
by  the  laborer  claiming  a  lien  is  sufficiently 
complied  with  by  filing  the  settlement  with 
the  clerk  within  the  thirty  days  allowed  for 
filing  tlie  lien.  Bundy  v.  Keokuk  Sf*  D.  M, 
R.  Co.,  49  Iowa  207. 

The  provision  of  Ky.  Act.  of  1888  relat- 
ing to  liens,  and  providing  that  a  person 
performing  labor  must  file  a  verified  state- 
ment of  the  amount  claimed  in  the  clerk's 
office  within  sixty  days  "  after  the  last  day  of 
the  last  month  in  which  any  labor  was  per- 
formed, or  materials  or  teams  furnished,"  is 
sufficiently  complied  with  by  laborers  work- 
ing by  the  month,  where  they  file  a  claim 
for  a  previous  month's  wages,  and  after  they 
ceased  work  filed  another  claim  for  such 
other  work  as  has  been  done  since ;  and 
the  provision  of  the  statute  that  the 
amount  due  must  be  set  out  does  not  re- 
quire a  detailed  statement.  Central  Trust 
Co.  V.  Richmond,  N.,  I.  &>  B.  R.  Co.,  54  Fed. 
Rep.  723. 

A  railroad  corporation  made  a  contract 
with  a  person  to  do  certain  work  on  its  rail- 
road. He  contracted  with  G.  to  furnish  the 
gravel.  G.  contracted  with  D.  to  fill  the 
cars  at  a  gravel  pit,  and  D.  hired  L.  to  assist 
in  the  work  under  his  contract.  After  L. 
had  done  some  work  D.  abandoned  his 
contract  with  G.,  and  G.  a  few  days  after- 
wards continued  D.'s  work  and  employed 
L.  upon  it.  Held,  that  L.  could  not  main- 
tain an  action  against  the  corporation, 
under  Mass.  St.  1873,  ch.  353,  for  the 
amount  due  him  from  D.  without  filing  a 
statement  of  his  claim  within  thirty  days 
after  he  ceased  to  perform  labor  for  D.,  and 
that  it  was  not  enough  to  file  a  certificate 
within  thirty  days  after  he  ceased  to  per- 
form labor  for  G.,  describing  the  labor  as 
performed  for  D.  and  G.  Lyon  v.  New 
York  (&>•  N,  E.  R.  Co.,  127  Mass.  loi. 


*  i 


wJ 


206 


LIENS,  50,61. 


li 


^  { 


g         I 


50.  Mece8sity  of  notice  to  ouiior. 

— A  laborer  who  seeks  to  subject  a  railruad 
company  to  the  payment  of  wayes  due  lum 
by  a  contractor  in  the  construction  of  such 
company's  road,  as  provided  in  section 
1942  of  the  N.  Car.  Code,  must  show  a  sub- 
stantial compliance  witli  the  requirements 
of  such  section  as  to  notice,  etc.  Moore  v. 
Cape  Fear  &*  V,  V.  K.  Co.,  112  iV.  Car.  236, 
17  S.  E.  Rep.  152. 

A  laborer  who  does  work  in  the  con- 
struction of  a  railroad,  and  gives  the  notice 
required  by  the  statute,  is  entitled  to  a  lien. 
Where  the  notice  is  given  in  due  time  and 
manner,  payment  to  the  contractor  will  not 
defeat  his  rights.  Indiana,  I.  &•  I.  R.  Co. 
V.    Larrew,   130  Ind.   368,  30  N.   E.    Rep. 

Notices  by  railroad  laborers  that  they  in- 
tend to  claim  a  lien  ijnder  the  statute, 
which  are  directed  to  the  company  by  its 
corporate  name,  and  to  the  officers,  agents, 
and  servants  thereof,  and  state  the  i;.nount 
and  number  of  days'  labor,  and  the  time 
when  it  was  performed,  and  name  of  the 
contractor  from  whom  due,  are  sufficient. 
Peters  v.  St.  Louis  &^  I.  M.  R.  Co.,  24  Mo. 
586. 

Mo.  Rev.  St.  1879,  §  787,  requiring  sub- 
contractors, laborers,  or  material-men  to 
give  notice  within  twenty  days  after  work  is 
performed  or  materials  furnished  of  a  lien, 
does  not  relate  to  an  enforcement  of  the 
lien,  but  the  establishment  of  a  personal 
liability  against  the  company.  Morgan  v. 
Chicago  &*  A.  R.  Co.,  76  Mo.  161. 

Unless  a  company  is  notified  within 
twenty  days  of  the  claim  of  a  laborer  or 
furnisher  of  material,  as  provided  by  Mo. 
Rev.  St.  1879,  §§  3200-3216,  a  personal  judg- 
ment against  it  in  a  suit  brought  there- 
under will  be  erroneous.  Morgan  v.  Chi- 
cago &•  A.  R.  Co.,  76  Mo.  161. 

Where  the  workman's  contract  is  not 
with  the  owner,  but  with  a  subcontractor, 
the  building  cannot  be  bound  by  this  con- 
tract for  more  than  the  reasonable  value  of 
the  work  done  and  materials  furnished ; 
and  the  lien  claim  filed  must  set  out  the 
iten^s,  though  the  contract  is  for  a  gross 
sum.  K/iftg  V.  Railway  Constr.  Co.,  7  Mo. 
App.  410. 

Under  the  Ohio  Act  of  March  31,  1874, 
entitled  "  An  act  to  secure  pay  to  persons 
performing  labor  and  furnishing  materials 
m  constructing  railroads"  (71  Ohio  L.  51),  a 
substantial  and  not  a  technical  compliance 


with  the  conditions  of  the  statute  provid- 
ing for  the  service  of  written  notice  upon 
the  owner  of  tlie  ruad  is  essential  to  create 
any  obligation  011  the  part  of  such  owner 
towards  tiie  person  performing  h'bor  or 
furnishing  materials  under  a  coiitract(jr  or 
subcontractor,  or  to  give  to  such  person 
any  right  ol  action  agamst  such  owner, 
Scioto  Valley  R.  Co,  v.  Cronin,  38  Ohio  St. 
122. 

The  limitation  of  thirty  days'  time  within 
which  suits  under  the  statute  of  1874,  to  se- 
cure their  pay  to  laborers  on  railroads  must 
be  brought,  applies  to  controversies  arisiiis; 
between  the  contractor  or  subcontractor 
and  the  person  furnishing  materials  or 
work,  and  not  to  rights  of  action  on  tiie 
part  of  the  latter  against  the  owner  of  tlie 
road.  Scioto  Valley  R.  Co.  v.  Cronin,  38 
Ohio  St.  122. 

51.  Upon  wlioin  the  notice  maybe 
served. — The  station  agents  of  a  foreign 
railroad  company  operating  a  railroad  in 
Missouri  are  the  representatives  of  the 
company  in  such  a  sense  that  service  of 
notice  upon  them  of  claims  for  work  and 
labor  done  or  materials  furnished  upon  the 
road  is  service  upon  the  company  within 
the  meaning  of  the  statute  providing  tiie 
mode  of  obtaining  and  enforcing  liens 
against  railroads.  (Mo.  Rev.  St.  1879,  i:'^ 
3200-3216.)  Morgan  v.  Chicago  &•  A.  K. 
Co.,  76  Mo.  161. 

A  party  who  claimed  a  lien  against  a 
company,  failing  to  find  any  of  the  odictrs 
of  the  company,  served  notice  of  his  claim 
upon  a  person  who  had  a  desk  in  the  office 
of  the  company,  but  had  no  connection 
with  its  business.  Held,  that  the  service 
was  not  a  compliance  with  Mo.  Rev.  St. 
§  3202.  Heltzel  v.  Kansas  City,  St.  L.  Sf  C. 
R.  Co.,  77  Mo.  482. 

Under  the  provisions  of  "  An  act  to  se- 
cure pay  to  persons  performing  labor  or 
furnishing  materials  in  constructing  rail- 
roads," passed  March  31,  1874(71  Ohio  L. 
51),  which  provides  that  "any  person  per- 
forming said  labor  or  furnishing  said  mate- 
rials who  has  not  been  paid  therefor  shall 
serve  a  notice  in  writing  upon  the  secretary 
or  other  officer  or  agent  of  said  railroad 
company,  stating  in  said  notice  the  kind 
and  amount  of  materials  furnished,  etc.," 
the  service  of  such  notice  upon  a  director 
of  the  railroad  company  to  be  affected  by  it 
is  sufficient.  Scioto  Valley  R.  Co.  v.  McCoy, 
42  Ohio  St.  2$i. 


LIENS,  52-55. 


209 


4.  Assignability  :  Subrogation. 

52.  Such  liens  arc  assiffiiablc.  —  A 

statutory  ritjlit  of  action  against  a  cor- 
poration for  labor  done  and  materials  fur- 
nished follows  the  assignment  of  the  claim; 
otherwise  it  would  be  determined  by  the 
claii:r.uit's  death,  and  perhaps  by  his  insol- 
vency. Chicago  Sf  N.  E.  R.  Co.  v.  Sturgis, 
44iJ//V7/.  538,7  ^V.  IV.  Rep.  213. 

After  complying  with  the  requirements 
of  section  1942  of  the  N.  Car.  Code  a  la- 
borer can  assign  his  claim  as  a  debt  either 
against  his  employer  or  the  railroad  com- 
pany dealing  with  him  under  a  direct 
agreement  or  as  subcontractor,  and  the  as- 
signee can  sue  upon  such  claim  and  other 
similar  ones  in  one  action,  and  recover  the 
sum  total  of  all  such  claims  due  for  labor. 
Moore  v.  Cape  Fear  <S>»  Y.  V.  R.  Co..  112 
N.  Car.  236,  17  S.  E.  Rep.  152.  Austin  &* 
N.  \V.  R.  Co.  V.  Rucker,  12  Ain.  «S-  Eiig.  R. 
Cas.  258,  59  Tex.  587. 

Work  done  under  an  agreement  with  a 
subcontractor  on  a  railroad  to  cut  and 
manufacture  a  specified  number  of  cross- 
ties  at  a  designated  price  is  not  the  work  of 
a  contractor,  builder,  or  material  -  man  in 
contemplation  of  the  statute,  but  those  per- 
forming it  are  laborers  under  a  subcon- 
tractor, and,  as  such,  entitled  to  the  lien 
given  by  the  statute.  Such  a  lien  is  assign- 
able, and  passes  with  the  assignment  of  the 
account.  Austin  iS^  N.  IV.  R.  Co.  v.  Daniels, 
62  Tex.  70. 

53.  not  assignable.— Although  a 

laborer  upon  a  railroad  has  a  lien  by  statute 
for  the  sum  due  him,  it  is  not  assignable  at 
law,  and,  even  if  assignable,  it  would  be  in 
equity  only,  and  thus  would  not  entitle  the 
holder  of  the  same  to  assign  the  lien. 
Cairo  6-  V.  R.  Co.  v.  Fackney,  78  ///.  116. 

The  lien  given  by  the  statute  to  laborers 
who  have  performed  labor  upon  the  road- 
bed of  any  railroad  in  this  state  is  a  per- 
sonal right  given  the  laborer  for  his  own 
protection,  and  the  right  to  create  it  cannot 
be  assigned  or  transferred.  Bro^un  v.  Chi- 
cago. S.  F.  &*  C.  R.  Co.,  36  Mo.  App.  458.— 
Following  Griswold  v.  Carthage,  J.  &  S. 
C.  R.  Co.,  18  Mo.  App.  52. 

Certain  work  was  done  by  plaintiffs'  as- 
signors in  July  and  August,  1881,  for  a  rail- 
road company;  the  notice  required  by  sec- 
tion 2131  of  the  Code  of  Iowa  of  the  filing 
of  a  claim  for  a  lien  was  given  October  31, 
iS8i ;  but  prior  to  the  giving  of  the  notice 


the  company  had  paid  in  full  for  the  work 
after  '  s  completion  in  accordance  with  the 
contract.  liaintiff  brought  acf'jn  to  en- 
force the  lien  against  the  cc/.npany  and 
to  obtain  judgment  against  the  assignors. 
Held,  that  the  lien  could  not  be  cnf(jrced 
against  the  company,  and  that,  as  the  evi- 
dence was  not  sufficient  to  show  a  valid 
assignment  to  plaintiffs,  judgment  could 
not  be  rendered  against  the  contractor. 
Nash  V.  Chicago,  M.  &*  St.  P.  R.  Co.,  12 
Am,  (S«  Eng.  R.  Cas.  261,  62  Iowa  49,  17  X. 
W.  Rep.  106. 

54.  liiability  to  assignee  I'or  lUiliire 
to  talic  bond  from  contractor.— Kan. 
Laws  1872,  ch.  136,  to  protect  laborers,  me- 
chanics, and  others  in  the  construction  of 
railroads,  applies  not  merely  when  a  rail- 
road company  is  engaged  in  the  construc- 
tion of  its  first  and  main  track,  but  also 
wherever  it  is  enlarging  its  road  by  the  ad- 
dition of  side  tracks.  A  railroad  company 
failing  to  take  the  bond  required  by  said 
statute  is  liable  not  merely  to  the  laborers 
personally,  but  to  any  persons  to  whom  they 
may  transfer  their  claims.  Missouri,  K.  (S« 
T.  R.  Co.  v.  Bro7vn,  14  Kan.  557.  — Distin- 
guished IN  Martin  v.  Michigan  &  O.  R. 
Co.,  26  Am.  &  Eng.  R.  Cas.  351,  62  Mich. 
458. 

55.  Subrogation.— If  a  party,  at  the 
request  of  a  railway  company,  takes  up  cer- 
tificates of  indebtedness  issued  by  it  to  its 
laborers  for  work  and  to  procure  board, 
and  to  enable  boarding-house  keepers  to 
obtain  groceries  and  provisions  for  hands 
engaged  in  the  construction  of  the  road, 
with  an  agreement  to  settle  with  him  for 
the  same,  such  party  will  be  entitled  to  re- 
cover of  the  company  the  amount  of  such 
advances ;  but  he  is  not  entitled  to  any  lien, 
under  the  Illinois  statute,  against  the  com- 
pany or  its  property.  Cairo  &^  V.  R.  Co.  v. 
Fackney,  78  ///.  116. 

Where  the  financial  agents  of  a  railroad 
company  advanced  money  to  the  company 
without  any  special  agreement  as  to  the 
manner  of  its  application,  and  received  as 
security  therefor  mortgage  bonds,  they  are 
not  entitled,  by  reason  of  the  fact  that  a 
part  of  the  money  advanced  was  paid  out 
to  laborers  and  supply-men,  to  be  subro- 
gated to  the  lien  of  such  laborers  and  sup- 
ply-men. Fidelity  /.,  T.  &•  S.  D.  Co.  v. 
Shenandoah  Valley  R.  Co.,  38  Am.  &^  Eng. 
R.  Cas.  559,  86  Va,  i,  13  Va.  L.J.  309,  9  S, 
E.  Rep.  759. 


I 


300 


LIENS,  30-3». 


5.  Eiifom.nent, 


50.  Jurisdiction.'*'— County  courts  in 
Texas  have  jurisdiction  to  foreclose  a  labor- 
er's lien  upon  the  "equipments"  of  a  rail- 
way in  u  suit  to  recover  for  cross-ties  which 
have  been  furnished  a  contractor  and  used 
in  the  construction  of  the  road.  "  Equip- 
ments," as  used  in  the  statute  creating  sucii 
lien,  mean  the  rolling  stock  and  other  mov- 
able property  used  in  operating  a  railway 
which  is  personal  property,  and  the  county 
court  has  jurisdiction  to  foreclose  liens  upon 
personal  property.  St.  Louis,  A.  &*  T.  H, 
Co.  V.  Satii/a/,  3  Tex.  App.  {Civ.  Cas.)  453. 

57.  l{i{j;lit  tu  811  e,  geuerully.— One 
cannot  enforce  a  lien  against  a  railroad  for 
work  and  labor  on  an  account  assigned  to 
him  prior  to  the  filing  of  a  lien.  O'Connor 
V.  Cutrent  River  Ji.  Co.,  11 1  Mo.  185,  20  S, 
W.  Rep.  16. 

Such  lien  cannot  be  sustained  in  favor  of 
the  lienor  as  to  work  done  by  him,  where 
such  work  is  not  distinguishable  in  the 
petition  from  that  for  which  the  account 
was  assigned,  and  for  which  no  lien  could 
be  enforced.  O'Connor  v.  Current  River  R. 
Co.,  Ill  Mo.  185,  20  S.  IV.  Rep.  i6.— Di.s- 
TINGUISHED  IN  Williams  v.  Chicago,  S.  F. 
&  C.  R.  Co.,  112  Mo.  463. 

58.  Parties.— It  is  not  essential  that  all 
the  companies  that  may  be  interested  in  a 
railroad  should  be  made  parties  to  a  pro- 
ceeding to  enforce  a  lien  for  work  and  labor 
or  materials;  but  if  any  are  omitted  their 
interest  will  not  be  affected. 
Chicago  &*  A.  R.  Co.,  76  Mo.  161, 

Where  there  were  intermediate  contrac- 
tors for  the  construction  of  a  railroad,  and 
the  assignee  of  claims  due  by  the  last  of 
such  contractors  to  laborers  brought  his 
action  against  the  railroad  company  and 
the  first  contractor,  conceding  that  the 
plaintiff  could  in  no  event  recover  from 
any  but  the  railroad  company  itself,  under 
the  statute,  yet  the  addition  of  the  first 
contractor  as  a  party  would  not  be  a  fatal 
misjoinder.  Moore  v.  Cape  Fear  <&>•  Y.  V. 
R.Co.,  112  N.  Car.  236,  17  S.  £.  Rep.  152. 

Under  the  provision  of  Texas  Act  of  1879, 
ch.  12,  where  a  suit  is  brought  against  a 
railroad  company  to  enforce  a  laborer's  lien, 
other  lien  holders  have  a  right  to  intervene 

*  Jurisdiction  of  equity  to  enforce  statutory 
liens  against  railroads,  see  57  Am.  &  Eng.  R. 

Cas.  425,  adstr. 


Morgan  v. 


without  leave  of  the  court.  Sno7v  v.  Texas 
Trunk  R.  Co.,  4  Woods  (I/.  S.)  394,  16  Fe,/. 
Rep.  I. 

And  if  leave  to  intervene  has  been  refused 
by  the  court,  and  the  parties  go  on  and  file 
their  petitions  asserting  their  liens,  they 
thereby  become  parties.  Snow  v.  Texas 
Trunk  R.  Co.,  4  Woods  [U.  S.)  394,  16  Fed. 
Rep.  I. 

5J>.  Pleading.— In  an  action  to  enforce 
a  laborer's  lien,  the  complaint  should  dis- 
close the  property,  and  the  nature  of  the  es- 
tate held  by  the  defendant,  and  upon  which 
the  lien  is  claimed.  Dano  v.  Mississippi, 
O.  6-  A'.  R.  R.  Co.,  27  Ark.  564. 

A  declaration  on  the  common  counts  in 
assumpsit,  with  mere  allusions  to  the  statute 
and  a  statement  of  plaintiff's  title  by  assign- 
ment, is  not  enough ;  the  existence  of  the 
facts  upon  which  the  statute  bases  the  right 
of  action  must  be  averred.  Chicago  &^  A'. 
E.  R.  Co.  v.  Sturgis,  44  Mich.  538,  7  N.  W. 
Rep.  213. 

Both  the  lien  filed  for  work  done  in  the 
construction  of  the  road,  and  the  petition  in 
an  action  for  the  enforcement  of  it,  should 
state  the  facts  showing  that  the  work  was 
performed  by  the  lienor  under  contract 
either  with  the  railway  company  or  its 
agent,  or  with  one  of  the  contractors  or 
subcontractors  therefor;  and  these  state- 
ments should  substantially  agree.  But  held, 
that  it  was  not  a  variance  to  state  in  the 
lien  that  the  lienor  contracted  with  the  rail- 
way company,  and  in  the  petition  that  he 
contracted  with  a  corporation  acting  in  the 
premises  as  the  agent  or  trustee  of  the  rail- 
way company.  Macklcr  v.  Mississippi  River 
<S-  D.  T.  R.  Co.,  52  Mo.  App.  516. 

Where,  in  an  action  by  the  assignee  of  a 
number  of  claims  due  laborers  by  contrac- 
tors, the  complaint  and  exhibits  failed  to 
show  affirmatively  that  each  of  the  laborers 
not  only  claimed  a  specific  sum,  but  had 
substantially  complied  with  the  statute  in 
respect  to  notice,  etc.,  previous  to  the  as- 
signment of  his  account,  a  demurrer  to  the 
complaint  will  be  sustained.  Moore  v.  Cape 
Fear  Sr-  Y.  V.  R.  Co.,  \\2  N.  Car.  236,  17 
•S".  E.  Rep.  152. 

The  laborer's  lien  being  a  creature  of  the 
statute,  all  allegations  as  to  agreements 
made  between  a  railway  company  and  its 
contractors  and  subcontractors  that  the  la- 
borer's lien  should  exist  in  favor  of  the  lat- 
ter are  irrelevant,  and  especially  where  it  is 
not  alleged  that  the  laborers  were  parties  to 


S: 


LIENS,  «0-0a.— LIMITATIONS   01'   ACTIONS. 


such  an  agreement.     Texas  &*  St.  L,  K.  Co, 
V.  McOiughey,  62  Tex.  271. 

00.  Evidence.— To  enforce  a  lien  for 
work  done  for  a  subcontractor  -proof  must 
be  made  tliat  the  labor  was  performed  at 
tlie  instance  of  the  s.ubcontracior,  and  '•  that 
the  wages  are  due."  Such  an  account  is 
not  admissible  in  evidence  under  a  sworn 
statement  as  to  its  correctness  as  an  "open 
account,"  within  the  meaning  of  art.  2266, 
Tex.  Rev.  St.  Austin  &•  X.  IV.  A'.  Co.  v. 
Daniels,  62  Tex.  70. 

01.  Jinlifineiit.— A  judgment  foreclos- 
mg  a  laborer's  lien  upon  tiie  "  equipments  " 
of  a  railroad  need  not  specify  the  particular 
articles  upon  which  it  is  to  operate.  It  is 
sufficient  to  declare  the  lien  foreclosed  upon 
the  equipments  of  the  railroad  to  an  extent 
sufficient  to  satisfy  the  judgment.  St.  Louis, 
A.  (S-  T.  Ji.  Co.  V.  Sandal,  3  Tex.  AJ>fi. 
(Civ.  Cas.)  453. 

02.  Amount  recoverable.— Under  a 
bill  in  equity  to  enforce  a  lien  for  work  and 
labor  performed  on  a  railroad  under  the 
act,  ch.  3132,  Laws  Fla.  1879,  it  is  error 
to  render  a  decree  for  a  larger  sum  than  is 
a'leged  in  tiie  bill  to  be  due,  and  specially 
asked  for  in  the  prayer  for  relief.  St.  Johns 
(S-  H.  K.  Co.  V.  Bartola,  28  Fla.  82.  9  So. 
A'e/>.  853.— Following  Mills  v.  Heeney,  35 
III.  173- 

The  lien  provided  by  ch.  3132  is  for 
"  labor  performed,"  and  independent  of  the 
statute  such  lien  would  not  exist,  and  a  court 
of  chancery  would  have  no  jurisdiction  to 
adjudicate  it.  The  existence  and  extent  of 
the  lien  here  provided  must  depend  upon 
the  provisions  of  the  statute,  and  it  is  error 
to  award  under  it  a  sum  for  unliquidated 
damages  arising  from  breach  of  contract. 
St.  Johns  (S-  //.  A'.  Co.  v.  Bartola,  28  Fla. 
82. 9  So.  Rep.  853, 

03.  Attorneys'  fees.— An  order  of 
court  directed  payment  of  "  wages  of  em- 
ployes "  out  of  a  fund  in  court  arising  from 
the  sale  of  a  railroad.  Held,  not  to  include 
attorneys'  fees.  Louisville,  E.  &•  St.  L.  R. 
Co.  v.  Wilson,  138  U.  S.  501,  11  Sup.  Ct. 
Rep.  405.— Disapproving  Gurney  v.  At- 
lantic &  G.  W.  R.  Co.,  58  N.  Y.  358.— Re- 
viewed IN  Tod  V.  Kentucky  Union  R.  Co., 
52  Fed.  Rep.  241,  6  U.  S.  App.  186,  3  C.  C. 
A.  60. 


LIFE. 

Assumption  of  greater  risks  to  save,  see 
Employes,  Injuries  10,  334,  752. 


Expectancy  of,  a  question  for  experts,  see 

WiTNKssKS.  132,  148. 
Showing  expectancy  of,  sec  Damagks,  02 ; 

Death  by  VVkonukli.  Act,  283,  284. 
See  LiKK  Taui.es. 


LIFE  TABLES. 

Judicial  notice  of,  see  Evidknck,  1 14. 

Use  of,  in  evidence,  on  questions  of  damages, 
see  Uamacks,  112;  Deaiu  iiy  WuoMiKUL 
Act,  284  ;  Evii.enck,  82,  247. 


LIFE  TENANTS. 

As  parties  in  condemnation  proceedings,  see 
E.MINENT  Domain,  207,  431,  707. 


LICrHTS. 

At  stations  and  station  grounds,  see  Cak- 
kiagk  ok  I'asskmjeks,  27  1|  Siations 
AM)  Dkpots,  1 02-105,  142. 

—  switches,  duty  of  company  to  provide,  see 

E.Mii.ovKs,  Injukiks  to,  74. 
Deprivation  of  light  as  an  element  of  dam- 
ages, St-e  SiKEETS  AM)   IllCIIWAYS,  284. 

Easement  of  light,  see  Elevated  Railways, 
51  ;  Streets  AM)  Highways,  134. 

Measure  of  damages  for  interference  with 
light,  see  Eminknt  Domain,  1105. 

On  stairway,  injuries  to  passenger  from  ab- 
sence of,  see  Elevated  Railways,  200. 

—  street-cars,    duty   to    place,    see    Street 

Railways,  450,471. 

Operating  cars  at  night  without,  see  Em- 
I'LOYEs,  Injuries  TO,  178. 

Ordinance  requiring  use  of,  see  Street  Rail- 
ways, 275 ;  Streets  and  Highways, 
377. 


LIMITATION. 

By  statute,  of  amount  recoverable  in  actions 
for  causing  death,  see  Death  by  Wrong- 
ful Act,  303-372. 

Of  agent's  authority,  see  Agency,  33. 

—  amount  of  indebtedness  to  be  secured  b/ 

mortgage,  see  Mortgages,  1 1 . 

—  recovery  for  carrying  the  mail,  see  Car- 

riage ok  Mails,  15. 

—  power  to  issue  railway  aid  bonds,  see  Mu- 

nicipal AND  Local  Aid,  281-283. 

—  taxing  power,  see  Taxation,  5-7. 

—  time  to  begin  construction  and  complete 

road,  forfeiture  for  violation  of,  see  Dis- 
solution, etc,  2,  3. 


LIMITATIONS  OF  ACTIONS. 

Against  elevated  railway  companies,  see 
Elevated  Railways,  108,  KM). 

—  officers  and  agents  of  government  rail- 
road, see  Govkrn.me.nT  Rau.koads,  14. 


I 


s 


f 


302 


LIMITATIONS   OF    ACTIONS,  1-4. 


II 


Amendmenti  barred  by  statute,  rcl-  Plead- 
iNi;,  155. 

—  letting  up  statute,  see  Pi.f.adinci,  154. 
Condemnation    proceedings,    sre    I'.i.kvatp.I) 

Uaii.wavs,  42;  r.MiMM    Domain,  UJI7. 
Contracts  limiting  time  within  which  to  sue, . 

seu   CAKUIAdK   UK    I.M'K   STOCK.  85;   CAR- 

III  \(;k  of  MiKcMAMUSK,  4H5-4iM). 
Creditors'    suits    against    stockholders,   see 

.Slo(.KIIol.|)|.;i;s,  OH. 
For  causing  death,  see  Dkatii  itv  Wro.noful 

A(T,  KM)    104,444. 

—  damages  caused  by  fire,  sfe  Kikks,  1!{0. 
sustained    by  railway    in    street,    sec 

SiRF.F.rs  AMI  IIkjiiways,  241. 

—  flooding  lands,  see  Fi.oodincj  Lands,  51. 

—  injuries  at  crossings,  see  Crossinos,  Inju- 

UIKS,   FTi:.,   AT,   2Jl. 

to  employes,  see  Emi'I.oyAs,  Injuriks  to, 

500. 
Interposing    the    statute    by  demurrer,  see 

I'l.KADINr..  «8. 

Lapse  of  time  when  bars  suit  to  remove 
cloud  on  title,  see  Cioud  on  Titi.k,  4. 

On  claims  against  government,  see  Claims 
Ar.AiNsc  Umifd  Staiks,  15. 

—  subscriptions  to  stock,  see  Suhscrii'tions 

TO  Stock,  I  70. 

Replication  to  plea  of  limitation,  see  Flkad- 
iNc,  78. 

Statute  no  defense  against  breach  of  duty  to 
restore  highway,  see  Strf.ets  and  High- 
ways, lOO. 

I.  GENERAL  PRIHCIPLES 302 

II.  WHEK   THE    STATUTE   BEOINS   TO 

EU» 308 

III.  WHAT  LAPSE  OF  TIME  WILL  CRE- 

ATE A  BAR 314 

IV.  DISABILITIES  AND  EXCEPTIONS ... .   328 
V.  NEW  PROMISE  ;  ACQUIESCENCE. ...  330 

I.  GENERAL  PRINCIPLES. 

1 .  Constitutionality  of  statutes  of 
liiiiitntion.— Ala.  .\ct  of  Feb.  3,  1877,  §  2, 
providing  that  claims  against  railroads  for 
killing  live  stock  shall  be  barred,  unless 
made  within  six  months  of  tiie  time  of  the 
killing,  is  valid,  notwithstanding  the  fact 
that  section  i  has  been  declared  unconsti- 
tutional, as  attempting  to  impose  absolute 
liability  upon  such  companies  for  killing 
stock.  South  fix  N.  Ala.  K.  Co.  v.  Morris,  65 
Ala.  193.— Following  Zeigler  v.  South  & 
N.  Ala.  R.  Co.,  58  Ala.  594. -Followed  in 
.Smith  V.  Louisville  &  N.  R.  Co..  21  Am.  & 
Eng.  R.  Cas.  157,  73  Ala,  449.  Quoted  in 
Alabama  G,  S,  R,  Co,  v.  Killian,  69  Ala. 
277. 


The  constitutional  provision  forbidding 
the  taking  of  private  property  (or  public 
use  without  just  compensation  does  not 
exact  that  the  conipensiition  shall  precede 
the  t.iking  ;  it  sutfices  tiiat  liic  law  authoriz- 
ing the  taking  (irovidcs  for  the  compensa- 
tion anfi  designates  an  impartial  tribunal 
for  its  assessment ;  and  it  is  competent  to 
restrict  tlic  pro[)erty  owner  to  a  given  time 
for  the  enforcement  of  his  rights.  Swims  v. 
Meinftliis.  C.  .1^  /..  A'.  Co..  1 2  Jhrd:  (  7'inn.) 
f>2i.--lJisriN(;i:isniNc;  White  v.  Nashville 
&  N.  W.  K.  Co.,  7  Heisk.  518. 

2. of  proviHioiiH  in  eliiii'tcrs  lim- 
iting tlni«  to  sn<'.— The  clause  in  the 
charter  of  a  railroad  company  fixing  tlic 
limitation  of  actions  for  killing  stock  on  its 
track  at  six  montlis  is  not  in  violation  of 
any  constitutional  provision.  Lucas  v. 
Kentucky  C.  K.  Co..  (Ay.)  45  Am.  6-  /f^/i,-. 
A\  Cas.  $20.  145.  If.  Rep.  965.  O'Baniioii 
V.  Louisville.  C.  &•  L.  A'.  Co..  8  Jius/i  iKy.) 

348. 

3.  Validity  of  convontional  limita- 
tions.—Parties  may  expressly  stipulate 
that  an  action  on  a  siiippi.ig  contract  .shall 
be  brought  within  a  certain  period  of  time 
less  tiian  is  provided  in  the  local  statutes  of 
limitation,  or  the  rights  of  the  delinquent 
party  will  be  extinguished ;  and  such  stip- 
ulation, if  free  from  fraud,  will  bind  the 
parties  and  be  regarded  as  valid  in  courts 
of  law.  Nonce  v,  Kichmond&^  D.  R.  Co..  33 
Fed.  Rep.  429. 

The  only  limitation  on  the  validity  of 
such  a  contract,  when  made  on  sufficient 
consideration,  is  that  it  be  reasonable  as  to 
the  pericd  of  time  stipulated.  Gulf,  C.  (S* 
S.  F.  R.  Co.  v.  Traivick.  30  Am.  <S^  Fng.  R. 
Cas.  49,  68  Tex.  314.  4  S.  W.  Rep.  567.— 
Followed  in  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Gatewood,  79  Tex.  89. 

4.  Operation  of  the  statutes,  gen- 
erally.—  Statutes  limiting  the  time  in 
which  personal  actions  shall  be  brought  take 
away  the  remedy  only,  but  do  not  extin- 
guish the  claim.  Morgan  v.  Camden  &*  A. 
Ji.  Co.,  xZPhila.  (Pa.)  384. 

Where  neither  the  general  statutes  of  a 
state  nor  any  special  act  contain  any  special 
limitation  in  regard  to  claims  upon  com- 
panies for  the  taking  of  land,  the  general 
statute  of  limitations  applies  to  all  actions 
of  trespass  brought  against  such  companies. 
Houstru  J-  T.  C.  K.  Co.  v.  Chaffin,  14  Am. 
&*  L>!f.  R.  Cas.  437,  60  Tex.  553. 

\'.'here  a  contract  sued  on  is  a  contract 


M 


LIMITATIONS   OF   ACTIONS,  5,0. 


SOS 


with  continuing  covenants,  and  a  suit  is  to 
enforce  the  covenants,  or  to  dissolve  the 
contract  for  breach  tliercof,  the  suit  is  not 
barred  until  after  the  expiration  of  the  con- 
tract. ^1'  hiliix  where  a  railroad  was  sued 
for  failing  to  comply  witli  a  contract  lo 
maintain  certain  bridges,  crossings,  and 
drainage.  Roman  (JathoUc  Chinch  v.  Texas 
iir'  i'.  A'.  Co.,  41  I'Cit.  Ncp.  561. 

The  limitation  of  sixty  davs  in  whicii 
claims  against  radtDads  must  be  presented 
or  siieil  on,  under  Ala.  Code,  ;»  1401,  docs 
not  apply  to  injuries  lo  a  person.  As  lo 
such  claims,  the-  limitation  is  provided  by 
section  2905,  and  is  one  year.  Nichohou  v. 
Mobile  &•  M.  A'.  Co.,  49  ^l/a.  205. 

Tlic  provision  of  N.  Y.  Code  Civ.  Pro.  § 
414,  exempting  from  the  operation  of  ch.  4, 
limiting  the  time  for  the  commencement  of 
actions,  cases  where  a  person  was  entitled 
to  commence  an  action  when  the  Code  took 
cilect,  and  declaring  that  "  the  provision  of 
law  applicable  thereto  in>mediately  before 
this  act  takes  effect  continues  to  be  applica- 
ble, notwithstanding  the  repeal  thereof," 
does  not  refer  simply  to  statutory  provisions, 
but  includes  a  rule  or  doctrine  established 
by  judicial  decision.  C/ari-  v.  LaAe  Shore 
&>  M.  S,  A'.  Co.,  94  A^.  y.  217 ;  ajfinniiig  26 
Hun  475,  mini. 

5.  What  ca»cs  arc  witliiii  their 
<»|M'ratioii.— The  statute  of  limitations 
runs  against  a  claim  of  a  municipal  corpora- 
tion against  a  street-car  company  for  pav- 
ing. Metropolitan  R.  Co.  v.  District  of  Co- 
lumbia, 132  U,  S.  I,  10  Sit/>.  Ct.  Rep.  19. 

The  statute  may  be  pleaded  in  bar  of  the 
special  statutory  remedy  provided  /or  the 
recovery  of  damages  caused  in  the  construc- 
tion of  a  railroad.  Forster  v.  Ciimberland 
Valley  R.  Co.,  23  Pa.  St.  371. — FOLLOWED 
L\  Houston  &  T.  C.  R.  Co.  v.  Chaflin,  14 
Am.  &  Eng.  R.  Cas.  437,  60  Tex.  553. 
OvKRRULEU  IN  Delaware,  L.  &  VV.  R.  Co. 
V.  Burson.  61  Pa.  St.  369. 

O.  What  are  not.— As  respects  public 
rights,  municipal  corporations  are  not 
within  ordinary  limitation  statutes.  Dis- 
trict of  Columbia  v.  Washittgton  <S-  G.  R. 
Co.,  4,  Am.  (S»  Eng.  R.  Cas.  161,  l  Mackey 
(D.  C.)  361.— Reviewing  Baltimore  &  O. 
R.  Co.  V.  District  of  Columbia,  3  MacArth. 
(D.  C.)  122. 

Where  a  company  is  required  by  statute 
to  keep  its  tracks  laid  on  streets  paved  at 
its  own  expense,  but  fails  to  do  so,  and  the 
district  authorities  lay  the   pavement,  and 


sue  the  company  for  the  cost,  the  statute 
of  limitations  does  not  apply.  District  of 
Columbia  v.  Washington  &*  (J.  R.  Co.,  4  .,-//;/. 
i:-  A';/^'.  R.  Cas.  161,  1  Maci-ey  (D.  C.)  361. 

Where  property  owners  institute  proceed- 
ings to  assiss  their  damages  caused  by 
laying  a  railroad  in  the  streets,  the  pro- 
ceeding is  not  an  action  of  trespass,  so 
that  the  statute  relating  to  the  limitati(m  of 
actions  therefor  would  apply.  Dixon  v, 
lialtimore  Gr^  J'.  R.  Co.,  3  Am.  &•  Eitx.  R. 
Cas.  201,  I  JAuXy/ (A  C.)  78.— .A:  I'KoviNG 
Baltimore  &  1'.  K.  Co  tk  Sixth  Pres- 
byterian Church,  91  U.  S.  127. 

A  company  can  acquire  no  prescriptive 
right  to  let  the  waste  water  from  its  tank 
onto  a  public  street,  as  against  the  city,  (jf 
one  in  its  legitimate  use  as  a  street.  Chicago 
&^  A'.   W,  R.  Co.  V.  Hoag,  90  ///.  339. 

The  grant  of  a  joint  and  mutual  use  of  a 
highway  to  a  railroad  with  the  public  can- 
not beset  up  under  the  111,  Limitation  Law 
of  1 83938  a  bar,  as  the  use  by  the  corporation 
is  nc)t  adverse.  Pittsburg,  Ft.  If.  &•  C.  A'. 
Co.  V.  Reich.  101  ///.  157.— Quoted  in  St. 
Louis,  A.  &  T.  H.  R.  Co.  v.  Belleville,  20 
111.  A  pp.  580. 

A  statute  of  limitation  acts  on  the  remedy 
merely,  not  on  the  debt,  and  therefore  can- 
not be  said  to  impair  the  obligation  of  a  con- 
tract ;  neither  does  it  raise  a  presimiption  of 
payment,  and  is  ineffectual  where  a  party 
seeks  afFirmative  relief  under  allegations  of 
payment.  Johnson  v.  Albany  &•  S.  R.  Co., 
54  A',  y.  416,  6  Am.  Ry.  Rep.  331  ;  affirm- 
ing i,o  How.  Pr.  193,  5  Lans.  222. 

The  Pa.  Statuteof  March  27,  1713, applies 
only  to  actions  at  common  law,  and  is  not 
a  bar  to  a  statutory  proceeding  to  recover 
damages  for  land  taken  by  a  railroad.  Dela- 
ware, L.  &^IV.  R.  Co.  V.  Burson,  61  Pa.  St. 
369.— Overruling  Forster  v.  Cumberland 
Valley  R.  Co.,  23  Pa.  St.  371. 

Certificates  of  stock  under  the  seal  of  the 
company,  containing  the  stipulation  to  pay 
interest,  were  issued  to  a  county.  In  an  ac- 
tion by  the  county  to  recover  interest  paid 
by  it — helil,  that  the  statute  of  limitations 
did  not  operate.  Pittsburg  <&>•  C.  R.  Co.  v. 
Allegheny  County,  63  Pa.  St.  126. 

The  16  Vict.  c.  99,  §  10,  limiting  the 
time  within  which  suits  can  be  brought 
against  the  Great  Western  R.  Co.,  applies 
only  to  actions  for  damages  occasioned  in 
the  exercise  of  the  powers  given  to  the  com- 
pany for  enabling  them  to  construct  and 
maintain  their  road,  not  to  claims  for  negli- 


I 


>01 


LIMITATIUNS    OV   ACTIONS,  Y-U. 


gence  in  conveying  passengers.  Roberts  v. 
Great  Western  R.  Co.,  13  d/.  C  Q.  B.  615.— 
QUOTEO  IN  McArthur  v.  Northern  &  P.  ]• 
R.  Co.,  17  Ont.  App.  86.  Reviewed  in 
Anderson  v.  Canadian  Pac.  R.  Co.,  17  Ont. 

747.  ^     , 

7.  How  far  the  government  is 
bound.— The  statute  of  limitations  does 
not  run  against  the  United  States.  United 
States  V.  Curtner,  14  Sawy.  (U.  S.)  535. 

The  statute  of  limitations  of  a  state  does 
not  run  against  the  right  of  action  of  the 
United  States  upon  negotiable  bonds  and 
coupons  of  a  railroad  corporation,  purchased 
by  the  United  States  before  maturity  as  an 
investment  of  money  received  from  the  sale 
of  lands  ceded  by  an  Indian  tribe,  and  held 
in  trust  for  the  tribe,  under  a  tieaty.  United 
States  V.  Nashville,  C.  &*  St.  L.  R.  Co.,  26 
Am.  &*  Eng.  R.  Cas.  no,  118  U.  S.  120,6 
Sup.  Ct.  Rep.  1006. 

Where  tlie  United  States  file  a  bill  to 
cancel  patents  which  had  been  erroneously 
issued  to  a  railroad  company,  the  statute  of 
limitations  is  not  a  bar,  neither  is  the  laches 
of  the  government  officers.  United  States 
V.  Southern  Pac.  R.  Co.,  2,9  Fed.  Rep.  132. 

So  long  as  title  to  land  remains  in  the 
United  States  the  statute  of  limitations 
cannot  be  pleaded  by  one  who  has  been  in 
possession  for  the  statutory  time  to  perfect 
a  claim  of  title ;  but  the  statute  may  be 
pleaded  against  a  grantee  of  the  United 
States.  Chicago,  R.  I.  &"  P.  R.  Co.  v.  All/ree, 
64  Icwa  500,  20  A^.  W.  Rep.  779. 

Ordinarily  a  statute  of  limitation  does 
not  apply  to  a  stue,  unless  it  is  expressly 
named  ;  nor  can  possession  be  held  adverse 
to  the  state ;  but  by  express  statute  in 
Alabama  twenty  years  is  the  limitation  of 
an  action  against  the  state.  Swann  v. 
Gaston,  87  Ala.  569,  6  So.  Rep.  386. 

Where  a  city  seeks  to  recover  of  a  railroad 
company  for  the  breach  of  a  contract  aris- 
ing upon  the  acceptance  of  a  grant  under 
a  city  ordinance,  the  statute  of  limitations 
may  be  interposed  as  a  bar,  the  same  as  in 
cases  upon  ordinary  contracts  between  nat- 
ural persons.  Muscatine  v.  Chicago,  R.  I. 
•5-  P.  R.  Co. ,  79  /owa  645, 44  N.  IV.  Rep.  909, 

The  statute  of  limitations  runs  against  a 
county  suing  a  railroad  company  for  ille- 
gally crossing  a  highway.  The  maxim, 
nullum  tenipus  occurrit  regi,  has  no  applica- 
tion. Houston  &•  T.  C.  R.  Co.  v.  Travis 
CouKty,  62  Tex.  16.— REVIEWING  Galveston 
V,  Menard,  23  Tex.  408. 


8.  When    the  lex   fori   governs.— 

Where  an  employe  is  injured  in  one  stite 
and  sues  m  another,  the  action  will  be  gov- 
erned by  the  statute  of  limitations  in  force 
where  the  suit  is  brought,  though  it  nii^lit 
be  barred  by  the  law  of  tlic  state  where  the 
injury  occurred.  A'o/ue  v.  Richmond  c~  D. 
R.  Co.,  33  Fed.  Rep.  429.  V Shields  v. 
Georgia  Pac.  R.  Co.,  83  Gu.  621,  10  .V.  E. 
Rep.  268. 

Where  an  employe  brings  a  common  law 
action  in  one  of  the  states  again>t  his  com- 
pany for  injuries  received  in  Canada,  the 
statute  of  limitations  wliere  tin;  sua  is 
brought  will  govern,  and  not  the  one  in 
force  where  the  injury  was  received. 
Johnston  v.  Canadian  Pac.  R.  Co.,  50  J',;i. 
Rep.  886. 

Plaintiff  was  injured  in  tlie  state  of  Kan- 
sas, but  immediately  went  to  the  st^iie  of 
Missouri,  and  lived  there;  but  did  not 
bring  an  action  until  after  it  would  have 
been  barred  by  the  statute  of  Kansas. 
Held,  that,  as  the  action  was  one  given  by 
the  common  law,  it  would  not  be  barred  by 
the  Kansas  statute,  unless  both  parties  re- 
sided there  for  the  full  period  of  limitation 
after  the  injury.  Finncll  v.  Southern  Kan. 
R.  Co.,  33  Fed.  Rep.  427.— Disai-proving 
Baker  v.  Stonebraker,  36  Mo.  349. 

A  resident  of  Missouri  was  injured  on  a 
railroad  in  Tennessee,  and  sued  for  the  in- 
jury in  New  York.  Held,  that  tiie  action 
was  barred  unless  plaintiff  had  become  a 
resident  of  New  York  within  the  one  year 
limited  by  the  laws  of  Tennessee  for  brins^- 
ing  the  action,  though  the  limit  in  New 
York  was  three  years.  Penfield  v.  Chesa- 
peake, 0.  &'  S.  IV.  R.  Co.,  134  U.  S.  351,  10 
Sup.  Ct.  Rep.  566. 

9.  How  far  equity  will  follow  the 
statute. — The  statute  of  limitations  is  a 
bar  in  equity  as  well  as  at  law,  and  the  si- 
lence of  a  subscriber  to  stock  after  six 
years  have  expired,  and  his  standing  by 
while  large  expenditures  were  being  made, 
will  not  preclude  liini  from  pleading  tlie 
statute.  Pittsburgh  &*  C.  R.  Co.  v.  Graham, 
2  Grant's  Cas.  (Pa.)  259. 

Where  shippers  of  live  stock  file  a  bill 
charging  fraud  and  concealment  in  monthly 
statements  of  freight  charges  and  the  set- 
tlements made  thereunder,  the  federal 
court  will  follow  the  state  statute  of  limita- 
tions, except  that  it  will  apply  the  equity 
rule  that  time  will  not  run  in  favor  of  the 
defendant  until  the  fraud  was  discovered, 


Km 


LIMITATIONS   OF   ACTIONS,  10-12. 


305 


or  until,  with  reasonable  diligence,  it  might 
have  Deen  discovered.  Kirhy  v.  Lake  Shore 
S^  M.  S.  R.  Co.,  1 20  U.  S.   130,  7  Sup.  a. 

Rfp.  430- 

After  a  county  had  subscribed  to  the 
stock  of  a  railroad  a  compronuse  was  ef- 
fected with  the  company  wliereby  the 
bonds  of  tlie  county  issued  in  payment  of 
the  stock  were  returned  and  the  subscrip- 
tion canceled.  Afterwards  the  company 
became  insolvent,  and  a  judgment  creditor 
filed  a  bill  to  set  aside  the  compromise  as 
fraudulent,  and  to  subject  the  amount  of 
the  subscription  to  payment  of  his  judg- 
ment. Held,  that  equity  would  apply  the 
statute  of  hmitations  of  six  years  as  in  a 
suit  at  law,  it  being  nine  years  after  the 
compromise  before  •he  bill  was  filed.  Nevj 
^libaiiy  s.  Burke,  ii  Wall.  {U.  S.)  C)6. 

10.  >Vliu  may  elaini  the  protection 
of  the  statute,  geiienilly.— A  corpora- 
tion may  plead  prescription.  A'ew  Orleans 
&^  C.  A'.  Co.  V.  Harper,  1 1  La.  Ann.  2 1 2. 

The  statute  runs  in  favor  of  a  railroad 
company  which  has  entered  on  land  for  a 
right  of  way.  Welsh  v.  Chicago,  B.  &*  K. 
C.  K.  Co.,  ig  Mo.  A  pp.  127. 

Where  a  township  lias  subscribed  to  the 
stock  of  a  railroad,  and  has  issued  its  bonds 
in  payment,  and  afterwards  a  di«'^ute  is  set- 
tied  by  a  compromise,  and  funding  bonds 
are  issued,  under  such  circumstances  as  to 
estop  the  township,  the  taxpayers  of  a  city 
therein  are  estopped  also,  and  cannot  plead 
the  statute  of  limitation.  Brown  v.  Mil- 
liken,  42  Kan.  769,  29  Am.  Q^  Eng.  Corp. 
Cas.  151,  23  Pac.  Rep.  167.— Followed  in 
Oswego  Tp.  V.  Anderson.  44  Kan.  214. 

While  limitation  will  run  in  favor  of  a 
trustee  after  his  repudiation  of  his  trust, 
still  such  repudiation  must  be  made  known 
to  the  beneficiary  or  the  beneficiary  be 
ch.nrged  with  notice.  A  fraudulent  con- 
rcMlMicnt  of  an  act  subversive  of  his  trust 
Would  prevent  the  running  of  limitations  in 
his  favor.  Becker  v.  Gulf  City  St.  K.  &^  li. 
E.  Co.,  80  Tex.  475,  15  .S\  W.  Nep.  1094. 

1 1.  What  will  tal<e  a  case  out  of 
tlie  statute,  or  arrest  its  ruiiiiiiifJT, 
generally.- -The  promise  of  officers  of  a 
company  to  pay  for  land  used  for  a  right  of 
way,  withii.  the  period  of  limitation,  is  not 
an  admission  of  title  in  the  promisee,  so  as 
to  prevent  the  running  of  tiie  limitation. 
fames  v.  fndianapolis  &^  5/.  L.  ft.  Co.,  91 

-^/z-  554. 

Where  a  passenger  fails  to  sue  for  a  per- 
6  D.  R.  D.— 20 


sonal  injury  until  the  action  is  prima  facie 
barred,  averments  that  the  defendant 
placed  liinj  in  charge  of  a  physician  who 
misled  him  by  falsely  stating  that  the  in- 
juries did  not  result  from  the  accident,  but 
from  causes  for  which  defendant  was  not 
liable,  and  that  plaintilT  did  not  Itarn  the 
facts  until  after  the  suitutc  had  ru.i.are  not 
sufficient  to  bring  the  case  within  tlio  ex- 
ception to  the  Missouri  statute,  providing 
that  it  shall  not  apply  where  the  defendant 
"by  any  improper  act  prevents  the  com- 
mencement of  an  action."  Chamberlain  v. 
Chicago,  B.  &>  Q.  R.  Co.,  27  I'eil.  Rep.  181. 

In  ejectment  against  a  company  for  real 
estate  occupied  by  it  as  a  part  of  its  right 
of  way,  the  company  claimed  title  to  the 
property  by  reason  of  the  statute  of  limita- 
tions. Within  the  ten  years  last  preceding 
the  commencement  of  the  action  the  rail- 
road company  sought  to  condemn  the 
property  to  its  use  under  the  provisions  of 
the  statute  for  the  condemnation  of  real 
estate.  These  proceedings  were  instituted 
against  the  real  owner  by  name  and  tlie 
condemnation  money  deposited  with  the 
county  judge  for  him.  Held,  that  these  pro- 
ceedings amounted  to  a  recognition  of  the 
ownership  of  the  person  against  whom  they 
were  instituted,  and  would  arrest  the  run- 
ning of  the  statute,  even  though  ilic  pro- 
ceedings were  void  for  want  of  jurisdiction 
by  reason  of  a  failure  to  comply  with  the 
law  in  the  publication  of  the  notice,  flull 
V.  Chicago,  B.  &^  Q.  R.  Co.,  21  A'eh.  371,  32 
A'.  W.  Rep.  162. 

12.  What  is  the  commejiceiueiit  of 
ail  action  such  as  will  stop  tlie  riiii- 
iiiii{>:  of  the  statute.— An  action  is  com- 
menced, and  the  statute  of  limitations 
ceases  to  run,  upon  the  tiling  of  the  peti- 
tion and  the  issuing  of  a  summons,  al- 
though the  summons  be  made  returnable 
to  a  term  of  court  commencing  within  ten 
days  from  its  date,  the  provision  of  the 
code  fixing  the  term  to  which  a  summons 
shall  be  made  returnable  being  directory 
merely.  Louis7>ille  &^  A'.  R.  Co.  v.  Smith, 
87  A>.  501,  10  A>.  L.  Rep.  514,  9  S.  W.  Rep. 

493- 

Where  one  company  conveys  its  property 
to  another,  and  the  latter  takes  possession, 
after  assuming  the  debts  of  the  other,  and 
a  creditor  takes  judgment  against  the 
grantor,  and  has  execution  returned  nulla 
bona,  and  promptly  institutes  proceedings 
in  equity  against  both  companies,  but  after 


I 
I 


f  «! 


iiOU 


LIMITATIONS   OF   ACTIONS,  13. 


I  !.' 


P      f 


the  statute  would  be  a  bar  to  the  original 
claim,  the  claim  is  neither  barred  by  laches, 
nor  the  statute  of  limitations,  ^oj^j,'-  v.  St, 
Lotas,  H.  <S-  A'.  A".  Co.,  5  McCrary  ( U.  S.) 
449,  17  Fi'ii.  Ri'p.  871.— Explained  IN 
Glenn  v.  Dorsheimer,  23  Fed.  Rep.  695. 

The  limitation  of  an  action  against  a 
company  to  recover  damages  for  personal 
injuries  is  one  year;  and  m  determining 
when  the  action  was  commenced  tlie  date 
or  form  of  the  summons  is  not  conclusive, 
it  being  amendable  in  these  particulars  on 
proper  evidence.  Alabama  G.  S.  R.  Co.  v. 
Hawk,  18  Am.  &*  Eng.  K.  Cas.  194,  72  Ala. 
112,  47  Am.  Kep.  403. — Following  Mobile 
&  M.  R.  Co.  V.  Crenshaw,  65  Ala.  566. 

The  beginning  of  an  action  by  a  contrac- 
tor against  a  company  is  not  the  begmning 
of  an  action  against  a  county,  or  the  county 
commissioners,  so  as  to  stop  the  running  of 
the  statute  on  the  liability  of  the  county  to 
subscriptions  made  in  aid  of  the  road,  which 
had  been  assigned  to  the  contractor.  Smith 
v.  Bourbon  County,  42  Kan.  264,  21  Pac. 
Rep.  1 109. 

The  fact  that  proceedings  were  instituted 
to  assess  damages  to  land,  and  commission- 
ers appointed  who  never  reported,  and  no 
further  proceedings  were  ever  taken,  would 
not  prevent  the  statute  from  running  against 
a  subsequent  action,  unless  it  was  shown 
that  the  former  action  had  been  continued. 
Waring  v.  Chera-w  &*1).  R.  Co.,  16  So.  Car. 
416. 

The  bringing  of  a  suit  by  the  trustees  of 
the  bondholders  to  foreclose  the  mortgage 
prevents  the  running  of  the  statute  as  to  all 
the  bondholders ;  and  whatever  is  done  by 
the  trustees,  or  by  one  or  more  of  the  bond- 
holders, in  behalf  of  all,  for  the  enforcement 
of  the  common  security,  enures  to  the  bene- 
fit of  all.  In  re  Chicki'ring,  26  Am.  &'  Em^. 
A'.  Cas.  646,  56  Vt.  82. 

Under  Tex.  Rev.  St.  art.  3202,  subd.  i, 
providing  that  actions  for  personal  injuries 
shall  be  commenced  in  one  year,  an  action 
will  be  barred  where  the  petition  is  filed 
within  a  year,  but  no  citation  issued  until 
nearly  two  years  thereafter,  because  no  bond 
for  costs  was  given,  and  no  affidavit  made 
of  inability  to  secure  such  costs.  Richer  v. 
Shoemaker,  81  Tex.  22,  16  S.  IV.  Rep.  645. 

In  an  action  commenced  before  a  justice 
of  the  peace  for  $125,  the  value  of  a  horse 
killed  by  a  train,  the   plaintifT    recovered" 
judgment  against  the  defendant,  both  before 
the  justice  and  in  the  circuit  court,  to  which 


the  cause  was  taken  by  appeal.  On  appeal 
to  the  supreme  court  the  judgment  below 
was  vacated,  and  the  action  dismissed,  on 
the  ground  that  the  justice  had  no  jurisdic- 
tion of  an  action  for  damages  to  personal 
property  exceeding  in  amount  tho  sum  of 
$100.  Within  a  year  after  tlie  i'.i(ii;inent 
was  vacated,  but  more  than  a  year  alter  the 
injury  complained  of,  the  plaintitf  brought 
a  new  action  for  the  same  cause  in  the  cir- 
cuit court,  and  the  defendant  pleaded  the 
statute  of  limitations  of  one  year  as  a  bar 
to  the  action,  under  section  5540,  Mansf.  Di- 
gest. Utltl,  that  the  vacation  of  the  judg- 
ment and  dismissal  of  the  action  in  tlic 
supreme  court  brought  tlie  plaintifi  within 
the  saving  of  section  4497,  Mansf.  Dig.  Littlt- 
Rock,  AI.  R.  &^  T.  R.  Co.  v.  Manees,  49  Ark. 
248, 4  S.  IV.  Rep.  TJ%. 

At  the  trial  of  an  action  for  personal  in- 
juries plaintiff  was  permitted  to  withdraw  a 
juror  on  condition  that  he  would  pay  the 
costs  within  ten  days,  which  he  failed  to  do, 
and  the  action  was  subsequently  dismissed. 
Held,  that  the  case  was  not  witliiii  N.  V. 
Code  Civ.  Pro.  §  405,  extending  the  time 
for  bringing  an  action  one  year  from  the 
termination  of  a  prior  action,  under  certain 
circumstances ;  and  the  fact  that  plaintiff 
was  unable  financially  to  pay  the  costs  did 
not  alter  the  case.  Haynvarit  v.  Manhattan 
R.  Co.,  17  Civ.  Pro.  {N.  Y.)  155. 

A  wife  sued  a  company  for  damages  to 
growing  crops  caused  by  flooding  her  lands, 
and  joined  her  husband  pro  forma  ;  after- 
wards an  amendment  was  allowed  by  which 
he  was  made  a  real  party  as  to  damages  to 
certain  community  property.  The  com- 
pany insisted  that  joining  \\\m  pro  forma 
did  not  stop  the  statute  of  limitations 
from  running  as  to  the  items  in  which 
he  had  an  interest,  and  that  the  stat- 
ute had  fully  run  before  he  was  made 
a  real  party.  Held,  that  in  contemplation 
of  law  the  husband  was  a  real  party  from 
the  institution  of  the  suit,  and  that  the  stat- 
ute did  not  run  thereafter.  Gulf,  C.  6^  S. 
F.  R.  Co.  v.  Jones,  3  Tex.  App.  {Civ.  Cas.) 
39- 

13.  Effectof  amendments  of  plead- 
ings after  statutory  period  lias  run. 
— Where  amended  counts  to  the  declaration 
are  filed  in  a  suit  against  a  railroad,  and 
the  amended  counts  set  up  a  new  cause  of 
action,  the  statute  of  limitation  may  be 
pleaded  to  the  amended  counts  where  the 
full  time  had  run  before  leave  was  given  to 


LIMITATIONS   OF   ACTIONS,  13. 


nm 


i 


amend.     /Utno/s  C.  A'.  Co.  v.  CoM,  64  ///. 
128. 

So  where  an  original  complaint  charges 
that  plaintiff  was  forcibly  ejected  from  a  car, 
an  amendment  showing  that  he  was  induced 
to  leave  the  car  by  mistake  before  he  reached 
his  destination,  by  the  porter  calling  the 
wrong  station,  introduces  a  new  cause  of 
action,  against  which  the  statute  may  be 
pleaded.  Alabama  G.  S.  K.  Co.  v.  Smith, 
81  Ala.  229,  I  So.  Rep.  723. 

Hut  where  a  complaint  charges  that  plain- 
tirt  was  wrongfully  expelled  froni  a  car,  an 
amendment  charging  that  the  expulsion  was 
wiili  unnecessary  force  does  not  state  a  new 
cause  of  action.  Chicago,  St.  L.  &•  P.  K. 
Co.\'.  Bills,  37  Am.  &^  Eiig.  R.  Cas.  121, 
118  /ntl.  221,  20  A^.  E.  Rep.  775. 

Wiiere  no  cause  of  action  is  stated  in  the 
original  declaration,  but  is  shown  for  the 
first  time  in  an  amendment  thereof,  a  plea 
of  the  statute  relates  to  the  time  of  the  fil- 
ing of  the  amendment.  Lnvis  v.  IVashitig- 
ton&^G.R.  Co.,6Alackey(D.  C.)  556.— Fol- 
lowing Johnston  v.  District  of  Columbia,  i 
Mackey  427. 

Where,  however,  the  original  declaration 
states  a  cause  of  action,  but  does  it  imper- 
fectly, and  thereafter  an  amendment  is 
filed,  a  plea  of  the  statute  will  relate  to  the 
time  of  the  filing  of  the  original  declaration. 
Lc-wis  V.  W  'ashington  Sf  G.  R.  Co.,  6  Mackey 
(D.  C.)  556. 

When  a  declaration  has  been  treated  as  a 
nullity  by  both  parties,  and  been  withdrawn, 
a  subsequent  declaration  is  not  an  amend- 
ment, but  an  original.  Therefore  the  rule 
that  the  statute  runs  up  to  the  date  of  an 
amendment  (in  certain  kinds  of  actions),  and 
not  of  the  writ,  is  not  applicable.  Reiff"  v. 
Pennsylvania  R.  Co.,  18  Phila.  (Pa.)  260. — 
Rkvikwing  Smith  v.  Bellows,  77  Pa.  St. 
441. 

If  an  action  upon  the  case,  against  a  car- 
rier for  negligence,  under  his  contract,  be 
brought  within  four  years,  and,  after  four 
years  have  elapsed,  the  plaintiflf  amend  his 
writ  by  adding  a  count  in  trover,  and  a  count 
for  trespass  vi  et  armis :  query,  whether 
the  new  counts  are  barred  ?  Southern  Exp. 
Co.  V.  Palmer,  48  Ga.8$. 

When  the  cause  of  action  is  an  injury  re- 
sulting from  tht  alleged  negligence  of  the 
defendant,  the  time,  place,  and  circumstances 
of  which  are  stated  in  the  original  petition, 
which  is  filed  before  limitation  has  barred 
the  action,  limitation  cannot  be  pleaded  to 


an  amendment  which  states  more  M\y  than 
the  original  petition  the  results  of  the  in- 
jury, and  which  is  filed  at  a  time  when  the 
statute  would  bar  a  recovery  on  a  suit  then 
brought.  Texas  Pac.  R.  Co.  v.  Davidson, 
68  Tex.  370,  4  .V.  ]V.  Rep.  636.— Quoting 
International  &  G.  N.  R.  Co.  ■jy.  Irvine,  64 
Tex.  533. 

A  complaint  in  an  action  for  floodiiigland 
alleged  that  it  was  due  to  defendant  raising 
an  embankment  across  a  stream .  By  a  sub- 
sequent amendment  it  was  alleged  that  the 
embankment  diverted  the  stream  from  its 
course,  and  that  the  overflow  was  caused  by 
an  imperfect  bridge  ;>t  another  place.  Held, 
that  the  amendment  presented  a  new  issue, 
and  it  would  not  relate  back  to  the  time  of 
bringing  the  suit  so  as  to  prevent  the  run- 
ning of  the  statute.  Biintin  v.  Chicago,  R. 
I,  &>  P.  R.  Co.,  41  Fed.  Rep.  744. 

An  original  complaint  charged  that 
plaintiff's  son  was  injured  by  defendant, 
whereby  he  was  compelled  to  pay  a  certain 
sum  for  surgical  and  medical  attention  ;  but 
an  amendment  alleged  that  plaintiff  liad 
paid  a  part  of  the  amount,  and  had  incurred 
a  liability  for  the  balance.  Held,  that  the 
statute  of  limitations,  as  to  the  amount 
contracted  but  not  paid,  would  run  to  the 
time  of  the  amendment.  Aleeks  v.  Southern 
Pac.  R.  Co.,  61  Cal.  149. 

In  1874  the  plaintiff  sued  a  company  to 
recover  for  a  personal  injury  on  the  ground 
of  negligence  in  the  engineer  in  bncking  his 
locomotive  and  needlessly  blowing  the  whis- 
tle, and  thereby  frightening  plaintiff's  horse 
and  making  it  unmanageable.  In  1877  tiie 
declaration  was  amended,  adding  as  a 
ground  of  negligence  the  improper  signal- 
ing of  the  flagman  for  the  plaintiff  to  cross 
the  tracks.  It  was  contended  that  the  last- 
named  cause  of  action  was  within  the  statute 
of  limitatif)ns  of  two  years.  The  evidence 
tended  to  establish  both  grounds  of  negli- 
gence. Held,  that  in  order  to  raise  the 
question  whether  the  amendment  intro- 
duced a  new  cause  of  action,  there  being 
only  one  injury  claimed,  the  defendant 
should  have  pleaded  the  statute  separately 
to  that  part  of  the  declaration  having  refer- 
ence to  the  improper  signaling  by  the  flag- 
man. Pennsylvania  Co.  v.  Sloan,  35  Am. 
&*  Eng.  R.  Cas.  440,  125  ///.  72,  17  N.  E. 
AV/>.  37  ;  affirming  24  ///.  App.  48. 

In  an  action  upon  a  penal  statute  more 
than  a  year  after  the  cause  of  action  ac- 
crued, the  plaintiff,  on  a  demurrer  to  his 


.ta 


308 


LIMITATIONS   OF   ACTIONS,  14-17. 


declaration  being  sustained,  aslied  and  ob- 
tained leave  of  the  court  to  amend  his 
declaration,  against  the  objections  of  the  de- 
fendant, and  the  declaration  was  amended 
in  court,  and  thereupon  the  defendant  ten- 
dered to  the  court  a  plea,  in  substance, 
that  the  plaintifi  his  action  ought  not  to 
have  and  maintain,  because  the  cause  of 
action  did  not  accrue  within  one  year  be- 
fore he  filed  his  amended  declaration.  Held, 
that  under  the  law  in  force,  March  9,  1869, 
the  statute  of  limitations  did  not  run  in 
such  case  in  favor  of  the  defendant  up  to 
the  time  of  the  filing  of  the  amended  decla- 
ration, but  only  until  the  commencement  of 
the  suit ;  that  is,  the  issuing  of  the  original 
writ.  Hart  v.  Baltimore  &>  O.  A'.  Co.,  6  W. 
Va.  336. 

14.  How  the  defense  may  be  in- 
terposed or  avoided. — The  statute  of 
limitations  may  be  set  up  by  special  excep- 
tion, and  where  some  of  the  items  of  an 
account  against  a  railroad  for  overcharges 
are  barred,  and  the  exception  is  to  the  whole 
amount,  the  exception  should  be  sustained 
as  to  the  barred  items  and  overruled  as  to 
the  others.  International  &^  G.  N.  Ji.  Co. 
V.  DonalsoH,  2  Tex.  Afip.  (Civ.  Cas.)  183. 

An  allegation  in  a  replication  that  the 
defendants  were  and  are  a  corporation  ex- 
isting under  the  laws  of  another  state,  and 
that  they  were  not  and  are  not  a  corporation 
existing  under  any  law  of  New  York,  is  not 
a  sufficient  answer  to  a  plea  of  the  statute, 
because  it  fails  to  aver  that  the  defendants 
were  a  foreign  corporation  before  and  at 
the  time  the  cause  of  action  accrued,  and 
does  not  allege  that  they  had  never  been  a 
corporation  under  the  laws  of  New  York. 
Blosshurg  (S-  C.  R.  Co.  v.  Tioga  K.  Co.,  5 
Blatchf.  {U.  S.)  387. 

15.  Repeal  or  suspension  of  limi- 
tation laws.— A  provision  in  a  charter  ex- 
empting a  company  from  suit  after  the  lapse 
of  a  year  from  the  accrual  of  a  cause  of 
action  is  not  repealed  by  a  revision  of  the 
laws  of  the  state  in  which  the  statute  of 
limitations  is  re-enacted,  by  which  it  is 
provided  that  actions  shall  be  commenced 
within  six  years,  though  the  act  adopting 
the  revision  repeals  all  acts  or  parts  of  acts 
inconsistent  therewith.  Vail  v.  Easton  <S«» 
A.  R.  Co.,  44  N.  J.  L.  237. 

The  Ky.  Act  of  March  17,  1871,  entitled 
"  An  act  to  further  protect  the  owners  of 
stock  living  along  the  line  of  railways," 
does  not  take  from  or  suspend  the  right  of 


the  owner  of  the  stock  injured  by  the  rail- 
way company  to  institute  his  action  for 
damages  immediately  after  the  injury  is 
done,  nor  does  it  either  expressly  or  by  im- 
plication repeal  the  former  statutes  on  tlie 
subject,  or  suspend  or  allect  the  limitation 
of  such  actions.  If  the  owner  pursues  tiie 
mode  provided  by  this  statute  to  incrcise 
his  recovery,  he  by  his  own  act  diminishes 
the  time  within  which  his  action  must  be 
brought,  and  must  abide  the  legal  cons(,'- 
quence,  Mortimer  v.  Louisville  &^  X.  A'. 
Co.,  10  Bits/i  (A'r.)  48 5. 

10.  Statutory  c1ian{;es  in  poriod.s 
of  limitation.— It  is  within  the  constitu- 
tional power  of  the  legislature  to  require,  as 
to  municipal  bonds  already  issued,  that  suits 
for  their  enforcement  shall  be  barred  unless 
brought  within  a  less  period  than  that  pre- 
scribed when  they  were  made.  The  exer- 
tion of  this  power  is,  therefore,  subject  to 
the  fundamental  condition  that  a  reiisoii- 
ablc  time,  taking  all  the  circumstances  into 
consideration,  be  given  by  the  new  law  be- 
fore the  bar  takes  effect.  Kos/ikononi^  v. 
Burton,  7  Am.  &>  Eng.  R.  Cas.  203,  104  U. 
S.  668. 

II.  WHEN  THE  STATUTE  BEGINS  TO  SUN. 

17.  In  general.* — The  statute  of  lim- 
itations doe-s  not  begin  to  run  in  any  case 
until  there  is  a  complete  and  present  cause 
of  action.  The  Ark.  Act  of  March  25,  1871, 
limiting  actions  to  avoid  tax-sales  to  two 
years  begins  to  ruii  from  the  expintion  of 
the  time  allowed  for  redemption,  and  not 
from  the  date  of  sale,  Cairo  &"  F.  R.  Co. 
V.  Parks,  32  Ark.  131. 

The  statute  begins  to  run,  not  necessarilv 
from  the  doing  of  the  act,  but  from  the  time 
substantial  damages  were  thereby  caused. 
Mangold  V.  St.  Louis,  I.  M.  &^  S.  R.  Co.,  24 
Mo.  App.  52.  Hotard  v.  Texas  <&»  /'.  A'. 
Co.,  36  La.  Ann.  450.  Heath  v.  Texas  &>  P. 
R.  Co.,  yj  La,  Ann.  728. 

The  right  of  action  in  a  county  that  had 
subscribed  for  railway  stock,  and  partially 
complied  with  such  subscription,  to  recover 
bonds  of  the  company,  or  their  value  to  the 
amount  of  the  certificates  issued,  accrued  at 
the  time  of  adjudication  that  counties  had 
not  power  so  to  subscribe,  and  the  statute 
of  limitations  would  operate  to  bar  the 
action  at  the  end  of  five  years  thereafter. 

•  When  cause  of  action  accrues,  see  39  Am.  & 
Eng.  R.  Cas.  63,  abstr. 


'iWf^ 


LIMITATIONS   OF    ACTIONS,  18-20. 


m 


Wapello   County  v.    Burlington  S-  M.  R. 
R.  Co.,  44  Iowa  585. 

1 8.  Where  deniHiul  or  other  uet  is 
a  prerequisite  to  the  riglit  to  sue.— 

Where  preliminary  action  is  essential  to 
the  bringing  of  an  action  upon  a  claim,  such 
as  is  required  of  the  township  trustee  in 
Kan.  Laws  of  1S76,  ch.  105.  and  such  prece- 
dent action  rests  with  the  claimant,  he  can- 
not prevent  the  operation  of  the  statute  by 
long  and  unnecessary  delay  in  taking  such 
action  ;  but  the  statute  will  begin  to  run  in 
a  reasonable  time  after  he  could  by  his  own 
act  have  perfected  his  right  of  action ;  and 
sucli  reasonable  time  will  not  in  any  event 
extend  beyond  the  statutory  per!  '  fixed 
foi  the  bringing  of  such  an  action.  Atchi- 
son, T.  &*  S.  /•'.  R.  Co.  v.  Bwlingame  Tp., 
36  Ran.  628,  14  Pac.  Rep.  271. 

Where  a  county  subscribes  to  railroad 
stock  to  be  paid  when  the  road  is  completed, 
a  demand  of  the  bonds  when  the  road  is 
completed,  and  a  refusal  to  deliver,  gives 
the  company  a  cause  of  action,  and  a  statute 
of  limitations  begins  to  run  from  that  date. 
Smith  v.  Bourbon  County  Com'rs,  43  Ran.  619, 
29  Am.  &•  Eng.  Corp.  Cas.  180,  23  Pac.  Rep. 
642.— Quoting  State  Bank  v.  Magness,  11 
Ark.  343.  Reviewing  Tennent  v.  Battey, 
18  Kan.  324. 

A  demand  for  compensation  for  land 
taken  by  a  railroad  company  for  a  roadbed, 
and  on  which  the  railroad  has  been  con- 
structed and  put  in  operation,  otherwise 
than  by  expropriation  proceedings,  is  not 
prescribed  in  two  years,  under  La.  Rev.  St. 
?J  698,  1497,  Rev.  Civ.  Code,  art.  2630,  and 
La.  Act  125  of  1880,  p.  169,  §  5.  Mitchell 
V.  New  Orleans  &^  N.  E.  R.  Co.,  41  La. 
Ann.  363,  6  So.  Rep.  522.— DISTINGUISHING 
JelTerson  &  L.  P.  R.  Co.  v.  New  Orleans,  31 
La.  Ann.  479. 

Dividends  declared  on  stock  in  a  corpo- 
ration are  payable  on  demand ;  and  until 
demand  and  refusal  prescription  does  not 
begin  to  run  against  the  person  entitled. 
Armani  v.  A'«£/  Orleans  &^  C.  R.  Co.,  ^\  La. 
Ann.  1020,  7  So.  Rep.  35. 

Where  the  riglit  of  action  depends  upon 
some  act  of  plaintiff,  such  as  the  making  of 
a  demand,  he  cannot,  by  failing  to  do  such 
act,  prevent  the  statute  of  limitations  from 
running.  And  in  this  case,  where  plaintiff 
seeks  to  recover  of  the  defendant  for  the  ap- 
propriation of  land  for  right  of  way,  and 
defendant  sets  up  as  an  equitable  defense  a 
written  agreement  of  plaintifl  to  convey  the 


land  upon  demand  after  the  location  of  its 
road,  and  defendant  neglected  for  more 
than  ten  years  after  the  location  of  its  road 
to  demand  a  deed— //f/</,  that,  in  the  ab- 
sence of  special  circumstances  excusing  the 
delay,  the  cause  of  action  pleaded  as  an 
equitable  defense  was  fully  barred,  whether 
it  be  regarded  as  a  cause  of  action  based  on 
a  written  contract,  or  an  action  brought  for 
the  recovery  of  real  property.  Ball  v. 
K'eokuk  &•  A".  IV.  R.  Co.,  20  Am.  &^  Eng.  R. 
Cas.  375,  62  /oji'a  751,  16  A'.  IV.  Rep.  592. 
— D1.STINGUISHING  Barlow  v.  Chicago,  R.  1. 
&  F.  R.  Co.,  29  Iowa  276 ;  Noll  v.  Dubuque, 

B.  &  M.  R.  Co.,  32  Iowa  66. 

11).  Actions  iii»oii  coupons.  —  The 
statute  of  limitations  begins  to  run  against 
interest  coupons,  detached  from  municipal 
bonds,  from  the  date  of  their  maturity,  in- 
dependent of  the  time  it  will  bar  an  action 
on  the  bonds  themselves.  Clari  v.  lo^^a 
City,  20  ITall.  (I/.  S.)  583.— DISTINGUISHED 
IN  Burton  7'.  Koshkonong,  4  Fed.  Rep.  373. 
Followed  in  Walnut  z'.  Wade,  103  U.  S. 
6^1.— Koshkonong  v.  Bur  ton,  7  Am.  <S-»  Eng. 
R.  Cas.  203,  104  U.  S.  668. 

20.  Actions  on  subscriptions  to 
stock.  — Where  stock  is  to  be  paid  for  in 
instalments,  a  right  of  action  accrues  each 
time  an  instalment  falls  due  and  a  call  is 
made,  and  the  statute  of  limitations  thereon 
begins  to  run  from  that  time.  Western  R. 
Co.  V.  Avery,  64  A'.  Car.  491. 

Where  no  call  is  made  for  more  than  six 
years  from  the  date  of  subscription,  the  law 
will  presume  an  abandonment  of  the  enter- 
prise, and,  from  analogy  to  the  statute,  bar  the 
recovery.  Pittsburgh  &^  C.  R.  Co.  v.  Byers. 
32  Pa.  St.  22.— Followed  in  Pittsburgh  & 

C.  R.  Co.  V.  Graham,  36  Pa.  St.  77,  2  Grant's 
Cas.  (Pa.)  259. 

When  the  liability  of  a  stockholder  in  an 
incorporated  company,  on  a  mortgage  given 
to  secure  his  subscription  to  the  capital  stock, 
depends  on  a  future  contingency,  prescrip- 
tion will  not  begin  to  run  until  the  contin- 
gency has  happened  which  was  to  make  the 
payment  of  the  subscription  demandable. 
Clinton  &•  P.  H.  R.  Co.  v.  Eason,  14  La. 
Ann.  828.  —  Distinguishing  Brown  v. 
Uflion  Ins.  Co.,  3  La.  Ann.  iSi  ;  Stark  v. 
Burke,  9  La.  Ann.  342;  New  Orleans,  J.  & 
G.  N.  R.  Co.  V.  Estlin,  12  La.  Ann.  184. 

A  subscriber  to  railroad  stock  had  paid 
up  in  full,  but  the  last  instalment  paid 
had  been  to  an  agent  of  the  company, 
who  had  died  without  transmitting  it,  and 


I 
I 


310 


LIMITATIONS   OF   ACTIONS,  21-24. 


subsequently  the  company  declared  the 
sti  ck  forfeited  for  non-payment  of  the 
amount  paid  to  the  agent,  whereupon  the 
subscriber  commenced  mandamus  proceed- 
ings to  compel  the  company  to  issue  him  a 
certificate  of  stocii.  Held,  that  the  statute 
did  not  begin  to  run  until  the  stock  was 
declared  forfeited.  Kice  v.  Pacific  R.  Co., 
55  Mo,  146. 

21.  Actions  against  stocldloldcrs 
by  creditors.* — In  a  suit  to  collect  a  judjjj- 
meiit  against  an  insolvent  corporation  from 
a  stockholder  thereof,  the  statute  does  not 
comricnce  to  run  against  the  judgment 
creditor,  and  in  favor  of  the  stockholder, 
until  the  entry  of  the  judgment.  Po^oeU  v. 
Orcgonian  R.  Co.,  13  Sawy,  {U.  S.)  535,  36 
I'd.  Rep.  726;  itV38  Ftui.  Rep.  187. 

Subscribers  cannot  object  when  the  proper 
officers  fail  to  make  calls,  and  creditors  of 
the  corporation  are  forced  to  a  court  of 
equity,  that  tiie  calls  should  have  been 
made  sooner.  Hawkins  v.  Glenn,  131  U.  S. 
319, 9  Sup.  a.  Rep.  739- 

22.  Actions  for  real  property.— 
Where  a  company  mortgages  land  granted 
it  to  a  state,  the  title  to  remain  in  the  state 
until  the  road  is  completed,  the  ordinary 
statute  of  ten-years'  limitation  will  not  be- 
gin to  run  in  favor  of  an  adverse  occupant 
until  the  state  conveys  title  back  to  the 
company.  Swann  v.  Gaston,  87  Ala.  569,  6 
So.  Rep.  386.      Ware  v.  Swann,  79  Ala.  330. 

23.  Actions  for  damages  to  land 
by  construction  of  railways.—Upon 
the  construction  and  putting  into  operation 
of  a  railroad,  all  damages  to  contiguous 
property  along  the  line  of  the  road,  present 
•  ~     prospective,  from  the  location  and  op- 

r  rf  the  road,  are  immediately  recov- 
er. '.  ind  must  all  be  recovered  in  one 
actiod:  s;id  if  an  action  is  not  brought 
II'  ;i  •  'ii  the  lapse  of  the  statutory  period, 
ih'i  •  •  .  ^^e  will  bar  a  recovery  for  any  sum. 
Chicago  6t*  E.  I.  R.  Co.  v.  McAuley,  \  2 1  ///. 
160,  w  N.  E.  Rep.  67.-^QuoTiNG  Troy  v. 
Cheshire  R.  Co.,  23  N.  H.  loi  ;  Elizabeth- 
town,  L.  &  B.  S.  R.  Co.  V.  Combs,  10  Bush 
(Ky.)  393.— Quoted  in  Louisville  &  N.  R. 
Co.  V.  On-,  91  Ky.  log.— Forydce  v.  Stone, 
50  Ark.  250,  7  S.  IV.  Rep.  129, 

So  long  as  the  owner  of  land  over  which 
a  company  is  seeking  to  obtain  the  right  of 

*  When  statute  begins  to  run  in  actions  to  en- 
force stockholders'  statutory  liability,  see  notes, 
3  Am.  St.  Rep.  827,  872. 


way  retains  complete  possession  and  con- 
trol of  the  same,  the  statute  does  not  begin 
to  run  against  his  right  to  recover  dam- 
ages. Midland  R.  Co.  v.  Smith,  44  Ant.  (3«« 
Etig.  R.  Cas.  222,  125  Ind.  509,  25  A'.  E.  Rep. 

•53- 

A  right  of  action  to  recover  for  perma- 
nent injuries  to  land  resulting  from  the 
negligent  construction  of  a  railroad  accrues 
at  the  time  the  first  injury  is  sustained. 
Van  Orsdol  v.  Burlington,  C.  R.  &>  N.  R. 
Co.,  56  Iowa  47G,  9  N.  IV.  Rep.  379.  Van- 
horn  v.  Grand  Trunk  R.  Co.,  9  U.  C.  C,  P. 
264. 

The  period  of  three  years  "  from  the  time 
of  taking  "  land  for  a  railroad,  within  which, 
by  Mass.  Rev.  St.  ch.  39,  §  58,  application 
must  be  made  to  county  commissioners  to 
estin^ate  the  damages  for  such  taking,  is  to 
be  computed  from  tlie  filing  of  the  location 
of  the  road,  as  required  by  section  75  of  the 
same  chapter.  Charlestown  Branch  R.  Co. 
v.  Middlesex  County  Com'rs,  7  Mete.  (Mass.) 
78. — Reviewed  in  Missouri  Pac.  R.  Co.  v. 
Hays,  14  Am.  &  Eng.  R.  Cas.  177,  15  Neb. 
224. 

Where  a  company  unlawfully  diverts  a 
stream  of  water  from  its  course  so  as  to  do 
damage  to  an  adjoining  landowner,  and  the 
trespass  is  continued  and  is  allowed  to  con- 
tinue after  the  company  promises  to  repair 
the  damage  done  and  to  stop  future  dam- 
age, the  statute  does  not  run  against  the 
landowner  from  the  time  of  the  original 
trespass.  Valley  R.  Co.  v.  Frang,  25  Am. 
6-  Eng.  R.  Cas.  275,  43  Ohio  St.  623,  4  N. 
E.  Rep.  88.— Limiting  Kansas  Pac.  R.  Co. 
V.  Mihlman,  17  Kan.  224;  Williams  v.  Pom- 
eroy  Coal  Co.,  37  Ohio  St.  583. 

Where  a  railway  act  provides  for  a  six 
months'  limitation  of  actions  against  tlie 
company,  and  that  in  case  of  a  cotuli;iiation 
of  damages  the  action  must  be  brouj,'ht 
within  six  months  next  after  committing 
such  damages  should  have  ceased,  in  case 
of  a  continuation  of  damages  the  limitiition 
begins  to  run  from  the  ceasing  of  the  com- 
mitting the  damages,  and  not  from  a  de- 
mand and  non-payment.  Kennet  &^  A.  Canal 
Nav.  Co.  v.  Great  Western  R.  Co.,  7  Q.  />. 
824,  4  Railw.  Cas.  go,  g/ur.  788,  14  L.  J.  Q. 
B.  325. 

24.  Actions  by  abutters  for  con- 
struction of  railway  in  street.— A 
cause  of  action  does  not  accrue  to  the 
owners  of  abutting  property,  against  a  com- 
pany for  damages  on  account  of  the  build- 


LIMITATIONS   OF   ACTIONS,  tJo-28. 


311 


ing  of  a  railroad  alonj;  a  city  street  until 
the  track  is  laid  down,  and  until  that  time 
the  statute  of  limitations  does  nut  begin  to 
run  against  such  action.  AlulholUind  v. 
Des  Moines,  A.  6-  W.  A'.  Co.,  lo  Aw.  &^ 
Eiig.  A'.  Cas.  99,  6o  /oma  740,  13  A'.  W. 
Rep.  726.  Lyles  V.  Texas  <3-  N,  0.  A'.  Co., 
39  Am.  &>  Eng.  R.  Cas.  59,  73  Tcx.  95,  1 1  S. 
IK  Rep.  782. 

A  railway  company  having  the  right  to 
construct  its  road  along  a  public  street  has 
a  reasonable  time  given  it  for  such  construc- 
tion and  the  consequent  obstruction  of  the 
street.  An  owner  of  adjacent  property  has 
no  right  of  action  for  such  obstruction  until 
after  such  reasonable  time,  and  limitation 
does  not  run  against  him  until  the  end  of 
sucii  time.  Missouri  Pac.  R.  Co.  v.  Speed, 
3  Tex.  Civ.  App.  454.  22  S.   W  Rep.  527. 

Where  a  company  unlawfully  entered  and 
took  possession  of  a  street,  and  constructed 
and  completed  its  grade,  the  cause  of  ac- 
tion of  the  abutting  owner  thereupon  ac- 
crued, and  under  Ind.  Rev.  St.  1881,  §  292, 
which  limits  actions  for  injuries  to  real 
property  to  six  years,  the  action  must  be 
brought  within  six  years  from  the  comple- 
tion of  the  grade,  or  it  is  barred.  Strickler 
V.  Midland  R.  Co.,  125  Jnd.  412,  25  iV.  E. 
Rep.  455. 

Where  a  railway  is  constructed  in  a  street 
by  legislative  authority,  the  cause  of  action 
for  all  damages  that  will  naturally  result  to 
abutting  property  from  the  prudent  opera- 
tion of  the  road  arises  as  soon  as  the  cars 
begin  to  run,  and  an  action  by  the  owner 
of  abutting  property  to  recover  sucli  dam- 
ages is  barred  after  the  lapse  of  five  years 
from  that  date.  But  as  to  injuries  result- 
ing from  an  improper  or  careless  operation 
of  the  road,  a  cause  of  action  does  not  ac- 
crue until  the  wrong  is  done,  and  limitation 
runs  only  from  that  time.  Lou/s7'i//e  «S-  A'. 
R.  Co.  V.  Orr,  91  A>.  109,  15  S.  W.  Rep.  8. 
—Quoting  Chicago  &  E.  I.  R.  Co.  v.  Mc- 
Auley,  121  111.  160. 

25.  Actions  fur  torts,  personal  in- 
juries, etc.— A  cause  of  action  for  a  per- 
sonal injury  accrues  at  the  time  of  the  in- 
jury; and  the  fact  that  the  injured  person 
lingers  for  a  considerable  time  before  re- 
covering does  not  extend  the  time  in  which 
an  action  must  be  brought.  Under  the 
California  statute  said  action  must  be 
brought  in  two  years.  Filler  v.  Southern 
Pac.  R.  Co.,  52  Cal.  42. 

Subsequent  results,  such  as  pain  and  suf- 


fering, naturally  followmg  from  personal 
injuries  received  do  not  extend  the  time  for 
bringing  an  action.  Taylor  v.  Manhattan 
R.  Co.,  25  A'.  1'.  S.  R.  226,  53  Hun  305,6  A'. 
Y.  Stipp.  488. 

Ill  Texas,  in  applying  the  statute  of  lim- 
itations, whether  the  day  on  which  the  act 
was  done  or  the  event  hapi)encd  is  to  be 
included  or  excluded  must  depend  upon 
the  circumsiances  and  reason  of  the  thing, 
so  that  the  intention  of  the  parlies  ihay  be 
effected.  In  construing  the  statute  as  a 
statute  of  repose,  in  actions  f(jr  personal 
injuries,  the  day  upon  which  the  accident 
occurs  should  be  included,  and  the  statute 
begins  to  run  from  that  day.  Texas  iS»»  P. 
R.  Co,  v.  Goodson,  2   Tex,  App.  (Civ.  Cas.) 

3'- 

Plaintiff  sued  for  damages  to  a  carriage 
coming  in  collision  with  a  post  supporting 
a  "  sign-board  "  at  a  point  where  a  railroad 
crossed  a  highway.  Held,  that  the  statute 
of  limitations  only  began  to  run  from  the 
time  of  the  collision,  not  from  the  time  tlie 
post  was  erected.  Soule  v.  Grand  Trunk 
R.  Co.,  21  (/.  C.  C.  P.  308. 

20.  Action  for  conversion  of  {jroods. 
—  The  statute  will  not  run  in  the  absence 
of  knowledge  on  the  part  of  the  owner  of 
the  conversion  of  his  goods  until  a  reason- 
able time  elapses  for  ascertaining  the  facts. 
Houston  &*  T.  C.  R.  Co.  v.  Adams,  49  Tex. 
748. 

27.  Action  for  loss  of  goods.— The 
statute  does  not  begin  to  run  in  favor  of  a 
carrier  from  the  delivery  of  goods,  but  from 
the  time  when  a  cause  of  action  accrues. 
So,  although  goods  were  shipped  more  than 
five  years  before  suit  brought,  to  recover 
for  their  loss  by  fire,  but  were  destroyed 
within  five  years  before  suit,  the  cause  of 
action  is  not  barred.  Merchants'  Despatch 
Co.  V.  Topping,  89  ///.  65. 

28.  Actions  for  killing  stock.— 
Under  Iowa  St.  1862,  ch.  169,  §  6,  making 
railroad  corporations  liable  in  double  dam- 
ages for  stock  killed  unless  paid  within 
thirty  days,  a  cause  of  action  accrues  as  of 
the  date  of  the  injury,  and  may  be  brought 
at  any  time  within  five  years  thereafter. 
Koons  V.  Chicago  <S»  A^.  \V.  R.  Co.,  23  Iowa 
493. — Distinguished  in  Herriman  v.  Bur- 
lington, C.  R.  &  N.  R.  Co.,  9  Am.  & 
Eng.  R.  Cas.  339,  57  Iowa  187.  Reviewkd 
in  Manwell  v.  Burlington,  C.  R.  &  N.  R. 
Co.,  45  Am.  &  Eng.  R.  Cas.  501,80  Iowa 
662. 


I 


i 


313 


LIMITATIONS   OF   ACTIONS,  30,  30. 


m 


if 


I 


20.  Actions  for  fraud  or  conccnl- 
nitiiit.* — An  action  lo  recover  excessive 
charges  on  the  ground  of  unjust  discrimina- 
tion is  an  action  of  law,  and  is  not  witiiin 
the  provisions  of  sections  2529,  2530,  Iowa 
Code,  which  provide  tliat  actions  brought 
for  relief  on  the  ground  of  fraud  in  cases 
lieretofore  solely  cognizable  in  a  court  of 
chancery  must  be  brought  within  five  years 
from  tlie  time  when  the  cause  of  action  ac- 
crued, and  that  in  an  action  for  relief  on  the 
ground  of  fraud  the  cause  of  action  shall  be 
deemed  to  have  accrued  only  upon  dis- 
covery of  the  fraud,  although  the  plaintifT 
alleges  that  the  discrimination  was  fraudu- 
lently concealed  by  the  defendant.  Carrier 
v.  Chicago,  R.  I.  S^  P.  R.  Co.,  42  Am.  &^ 
Eng.  R.  Cas.  349,  79  /o7C'a  80,  44  A\  II '.  Rep. 
203,  6  L.  R.  A.  799.— Followed  in  Cook 
V.  Chicago,  K.  I.  &  P.  K.  Co.,  81   Iowa  551. 

Such  an  action  is  governed  by  the  rule 
that  where  the  defendant  fraudulently  con- 
ceals the  cause  of  action  the  statute  of 
limitation  commences  to  run  only  from  the 
time  of  its  discovery,  the  plaintiff's  cause  of 
action  being  based  upon  the  unreasonable 
charges,  and  not  upon  the  fraud.  Carrier 
V.  Chicago,  R.  I.  iS-  P.  R.  Co.,  42  Am.  &• 
Eng.  R.  Cas.  349,  79  lo^va  80,  44  A'.  IV. 
Rep.  203,  6  L.  R.  A.  799.— Following 
Boomer  Tp.  v.  French,  40  Iowa  601. — Cook 
'.'.  Chicago,  R.  I.  &'  P.  R.  Co.,  45  Am.  &> 
Eng.  R.  Cas.  291,  81  Iowa  551,  46  N.  IV. 
Rep.  1080— Following  Carrier  v.  Chicago. 
R.  I.  &  P.  R.  Co.,  79  Iowa  80. 

If  the  petition  in  an  action  against  a  com- 
pany for  the  fraud  of  its  agent  proper' y 
states  the  cause  of  action,  and  avcrs  tiiat 
the  fraud  was  not  discovered  until  withm 
four  years  before  the  suit  was  begun,  an 
answer  charging  that  the  cause  of  action 
did  not  accrue  within  four  years  before  suit 
because  the  fraud  was  not  committed  within 
said  time  is  insufficient.  Maple  v.  Cin- 
cinnati, H.  &*  D.  R.  Co.,  15  Am.  &•  Eng.  R. 
Cas.  94,  40  Ohio  Si.  313,  48  Am.  Rep.  685. 

Where  one  land-grant  railroad  brings  an 
action  to  recover  certain  lands  which  it  is 
charged  the  state  has  fraudulently  conveyed 
to  another  company,  the  time  for  bringing 
the  action  cannot  be  extended  by  a  failure 
sooner  to  discover  the  fraud,  as  in  such 
cases    the    proceedings    are  all    of    public 

•Limitation  of  action  where  party  is  in  ig- 
norance of  fraud,  see  note,  12  Am.  &  Eng.  R. 
Cas.  359. 


record,  and  it  is  inexcusable  negligence 
not  to  take  notice  of  the  records.  Si.  Paul, 
S.  «S-  7'.  /•".  R.  Co.  v.  Sage,  49  Fed.  Rep.  315, 
4  U.  S.  App.  160,  1  C.  C.  A.  256. 

But  apart  from  the  statute  of  limitations 
a  delay  of  fourteen  years  to  assert  title 
during  which  time  the  other  company  has 
sold  the  lands  to  actual  settlers,  is  such 
laches  as  to  defeat  a  recovery.  St.  Patd,  S. 
^^  T.  F.  R.  Co.  V.  Sage,  49  Fed.  Rep.  31  5,  4 
U.  S.  App.  160,  I  C.  C.  A.  256.— Quoting 
Graham  v.  Boston,  H.  &  E.  K.  Co.,  118  U. 
S.  161,  6  Sup.  Ct.  Rep.  1009. 

P'laintiff,  a  shipper,  paid  a  freight  rate 
according  to  the  company's  published 
scliedule,  supposing  that  a  uniform  rate 
was  charged  to  all,  but  subsequently  dis- 
covered that  the  company  charged  other 
shippers  a  lower  rate.  Held,  in  an  action 
to  recover  the  excess,  that  this  was  not 
such  fraud  or  concealment  on  the  part  of 
the  company  as  to  allow  him  one  year 
from  the  discovery  of  the  discrimination  in 
which  to  bring  an  action,  as  provided  by 
Colo.  Gen.  St.  §  2170;  but  the  action  must 
be  brought  within  one  year  from  the  time 
of  the  sliii)meiit.  Goodridge  v.  Union  Pac. 
R.  Co.,  35  Fed.  Rep.  35. 

30.  ArtioiLs  for  nuisances,  ob- 
structions to  l>r:(I{;es  and  watcr- 
wsi.vs.*— Where  a  nuisance  is  of  a  per- 
manent nature,  and  its  erection  and  con- 
tinuance are  necessarily  an  injury,  the 
damage  it  causes  may  be  fully  compensated 
at  once,  and  the  statute  rims  against  an  ac- 
tion therefor  from  the  time  the  nuisance  is 
constructed.  St.  Louis,  I.  M.  &*  S.  R.  Co. 
V.  liiggs,  52  Ark.  240,  12  S,  IV.  Rep.  331.— 
Distinguishing  St.  Louis,  I.  M.  &  S.  R. 
Co.  V.  Morris,  35  Ark.  622  ;  Little  Rock  & 
Ft.  S.  R.  Co.  7/.  Chapman,  39  Ark.  463.— 
Followed  in  St.  Louis,  I.  M.  &  S.  R.  Co. 
?'.  Yarborough.  56  Ark.  612. 

But  where,  although  the  structure  con- 
stituting a  nuisance  is  of  a  permanent  char- 
acter, its  construction  and  continuance  are 
not  necessarily  injurious,  but  may  or  may 
not  be  so,  the  injury  to  be  compensated  in 
a  suit  is  only  the  damage  which  has  hap- 
pened, and  there  may  be  as  many  successive 
recoveries  as  there  are  successive  injuries. 
In  such  case  the  statute  of  limitations  does 
not  begin  to  run    until   the    happening  of 


*When  limitation  runs  against  actions  for 
maintaining  nuisances,  see  note,  2oAm.  St.  Rkt. 
176. 


I 


* 


LIMITATIONS   OF   ACTIONS,  31-33. 


m 


the  injury  complained  of.    S/.  Louis,  I.  M. 
Cr^  S.  A'.  Co.  V.  />/j,xs,  52  W/X'.  240.  12  s.  ir. 

/iV/.  331. 

In  an  action  for  damages  caused  by  the 
erection  of  an  embankment  so  as  to  ob- 
struct a  natural  waterway,  a  right  of  action 
to  the  person  injured  accrues  at  the  date  of 
llie  first  substantial  injury  caused  thereby. 
/,'//■(/  V.  Hannibal  &»  St.  J.  R.  Co.,  30  Mo. 

Apt>.  365. 

Wliere  a  company  destroys  a  bridge,  mak- 
ing it  necessary  for  the  county  to  rebuild  it, 
a  riglit  of  action  against  the  company  for 
the  cost  of  rebuilding  accrues  at  the  time 
that  the  bridge  is  completed.  Perry  County 
V.  Xe^uark,  S.  Gf*  S.  R.  Co.,  43  Ohio  St.  451, 
2  A'.  E.  Rep.  854. 

31.  Actions  for  flowing  iiUKls.— 
The  limitation  of  three  years  applies  to  ac- 
tions against  a  railroad  company  for  over- 
flijwing  one's  land  by  the  building  of  a  levee, 
and  commences  as  soon  as  the  levee  is  com- 
pleted. St.  Louis,  /.  M.  Sf*  S.  R.  Co.  v. 
Morris,  5  A/H.  &*  Eng.  R.  Cas.  48,  35  Ari: 
622.— DiSTiNGUi.sHEU  IN  St.  Louis,  I.  M.  & 
S.  R.  Co.  V.  Biggs,  52  Ark.  240. 

The  statute  of  limitations  does  not  begin 
to  run  against  a  landowner's  right  of  action 
for  the  unlawful  flowage  of  his  land  until  he 
has  been  injured.  Culver  v.  C/iicai^o,  R.  I. 
(5^  /'.  R.  Co.,  38  Mo.  App.  130.  Omaha  &^ 
R.  I '.  R.  Co.  V.  L'roTon,  44  Am.  &•  Eng.  R. 
Cas.  475,  29  A'e6.  492,  46  N.  IV.  Rep.  30. 
—  Following  Omaha  &  R.  V.  R.  Co.  v. 
Standen,  22  Neb.  343. — Miller  v.  Keokuk  <5^ 
D.  M.  R.  Co.,  14  Am.  &•  Eng.  R.  Cas.  293, 
63  /010a  680,  16  N.  IV.  Rt!p.  567.— Distin- 
guishing Powers  2/.  Council  Bluffs,  45  Iowa 
6^2.— Moison  v.  Great  Western  R.  Co.,  14 
U.  C.  Q.  B.  109.  St.  Louis,  /.  M.  «S-  5'.  R. 
Co.  V.  Biggs,  52  Ark.  240,  12  S.  IV.  Rep.  331. 

Where  at  the  time  a  railway  embankment 
is  erected  it  is  uncertain  whether  it  will 
cause  adjoining  land  to  overflow  or  not,  and 
growing  crops  are  consequently  overflowed 
by  reason  of  such  embankment,  the  statute 
begins  to  run,  not  from  the  time  the  em- 
bankment was  erected,  but  from  the  time 
the  injury  occurred.  .S7.  Louis,  L  M.  &*  S. 
R.  Co.  V.  Yarhorough,  52  Am.  &*  Eng.  R. 
Cas.  6S2,  56  Ark.  612,  20  S.  If.  Rep.  515.— 
Following  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Biggs,  52  Ark.  240. 

Where  a  company  constructs  a  passage 
through  its  embankment  to  allow  the  escape 
of  surface  water,  which  proves  insufficient, 
a  riy;l;t  of  action  will  not  lie  barreii  in  live 


years  from  the  discovery  of  the  insufficiency  \ 
but  where  tlie  opening  is  designed  for  a 
cattieway,  and  is  not  practicable  for  a 
waterway,  the  injury  is  permanent,  and  the 
damages  entire,  and  tlie  right  of  action  ac- 
crues as  soon  as  the  embankment  is  made 
or  discovered,  and  is  barred  in  five  years. 
Haisch  v.  Keokuk  6^  J).  M.  R.  Co.,  71  Jo^oa 
606,  33  A'.  W.  Rep.  12:.-  -Distinguishing 
Drake  v.  Chicago,  R.  I.  &  P.  R.  Co.,  63  Iowa 
302. 

Defendant  built  its  roadbed  so  as  to  ob- 
struct the  flow  of  water  from  an  upper  pro- 
prietor, but  abandoned  it,  and  it  was  cut 
through,  and  the  water  passed  off.  After- 
wards it  built  another  bed  obstructing  the 
flow,  for  which  suit  was  brought.  Held,  that 
the  statute  of  limitations  commenced  to 
run  at  the  completion  of  the  last  and  not 
the  first  obstruction.  Little  Rock  &^  Ft.  S. 
R.  Co.  v.  Chapman,  17  Am.  &'  I^ng.  R.  Cas. 
51,  39  Ark.  463,  43  Am.  Rep.  280. — Dl.STlN- 
GUiSHKD  IN  St.  Louis,  I.  M.  &  S.  R.  Co.  V. 
Biggs,  52  Ark.  240. 

32.  Actions  by  or  against  personal 
representatives. — Where  a  cause  of  ac- 
tion accrutiS  to  the  estate  of  a  decedent  in* 
stead  of  to  the  deceased  while  living,  the 
statute  of  limitations  will  not  ommence  to 
run  until  the  appointment  of  an  adminis- 
trator. But  if  the  statute  has  once  begun 
to  run  in  the  lifetime  of  the  party  entitled, 
it  is  not  interrupted  by  his  subsequent 
death,  but  continues,  and  the  cause  of  ac- 
tion survives,  not  accrues,  to  the  personal 
representative.  Sherman  v.  M'estern  Stage 
Co.,  24  loiva  515. — Distinguishing  Blake 
V.  Midland  R.  Co ,  18  Q.  B.  (83  E.  C.  L.) 
1 10.  Explaining  Donaldson  v.  Missisrippi 
&  M.  R.  Co.,  18  Iowa  280. 

33.  or  trustees.— Railway  stock 

was  registered  in  the  names  of  two  persons 
who  were  executors  and  trustees  of  a  will. 
One  of  them  sold  and  transferred  the  stock, 
forging  the  signature  of  the  other  to  the 
transfers,  which  were  registered  by  the  rail- 
way company.  On  the  forgeries  being  dis- 
covered by  the  other  executor  a  new  trus- 
tee of  the  will  was  appointed  in  place  of  the 
forger,  who  then  left  this  country.  The 
two  trustees  informed  the  company  of  the 
forgeries,  and  applied  to  be  registered  as 
owners  of  the  stock.  The  company  refused 
to  comply  with  the  application,  and  the  two 
trustees  thereupon  brought  an  action  for 
replacement  of  the  stock  in  their  names. 
S'lme  of  the  stock  w:is  transferred  tiiorethan 


I 


I 


t 


m 


3U 


LLnIITATiONS   LV   actions,  3-k-iM. 


m 


six  years  before  the  action  was  brou^;lit. 
//cij,  that  the  cause  of  action  was  the  relusal 
by  the  company,  when  tlie  forgeries  were 
made  icnown  to  it,  to  treat  tlie  plaintitls 
as  owners  of  the  stock,  and  that,  therefore, 
the  statute 'would  not  bci^in  to  run  against 
the  plaintifTs  until  such  refusal.  Bnrion  v. 
North  Staffordshire  R.  Co.,  L.  R.  38  Ch.  D, 

458. 
The  plaintiffs  were  entitled  to  treat  the 

transfers  as  nullities,  and  the  company  was 

ordered  to  register  the  plaintifTs  as  owners 

of  the  stock.    Barton  v. North  Staffordshire 

R.  Co.,  L.  R.  38  Ch.  I).  458. 

:i4.  Actions  agaiiiNt  furei{;ii  cor- 
porations.— The  statutff  does  not  com- 
mence running  against  a  foreign  corpora- 
tion until  it  has  attachable  property  in 
the  state,  although,  previous  to  that  time, 
there  may  be  directors  and  stockholders  of 
such  corporation  residing  in  the  state.  Hall 
V.   Vermont  &'  M.  R.  Co.,  28  Vt.  401. 

Under  a  statute  providing  that  "  when 
the  defendant  is  a  foreign  corporation,  hav- 
ing a  managing  agent  in  the  state,  the  ser- 
vice [of  summons]  may  be  made  upon  such 
agent,"  the  statute  of  limitations  as  against 
a  nonresident  express  company  begins  to 
run  from  the  time  the  company  has  such 
agent,andif  it  havesuch  agentwhen  the  cause 
of  action  accrues,  it  will  be  barred  in  live 
years,  according  to  the  Nebraska  statute. 
United  States  Exp.  Co.  v.  Ware,  20  M^all. 
((/.  S.)  543.— Reviewed  in  McCabe  v.  Illi- 
nois C.  R.  Co.,  4  McCrary  (U.  S  )  492.  13 
Fed.  Rep.  827. 

in.  WHAT  LAPSE  OF  TIME  WILL  CBEATE 
A  BAB. 

35.  In  general.— Where  a  company 
binds  itself  to  grade  a  certain  street  in  a 
reasonable  time,  an  action  by  the  city  for  a 
breach  of  the  contract  is  barred  in  Iowa  in 
ten  years  after  the  right  of  action  accrues. 
Muscatine  v.  Chicago,  R.  I.  <S>»  P.  R.  Co., 
79  Iowa  645,  44  A^.  W.  Rep.  909. 

Where  a  construction  contract  is  reduced 
to  writing,  an  action  to  recover  a  balance 
due  the  contractor  is  "  founded  upon  a  con- 
tract in  writing,"  within  the  meaning  of 
Tex.  Rev.  St.  art.  3205,  and  is  barred  in  four 
years.  Galveston,  H.  &*  S.  A.  R.  Co.  v. 
Johnson,  74  Tex.  256,  \i  S.  IV.  Rep.  1113. 

In  Louisiana  a  claim  for  damages,  ex  de- 
licto, is  prescribed  by  one  year.  Harris  v. 
New  Orleans,  O.  &•  G.  W. R.  Co., 16  La.  Ann. 
140. 


A  street-car  company  accepted  its  charter 
with  the  condition  tlierein  that  it  should 
[)urcliase  the  pnj|)erty  of  an  omnibus  lino, 
at  a  price  to  be  assessed  by  disinterested 
persons.  Held,  that  the  valuation  thus  as- 
certained was  not  an  award,  but  an  aijpraisc- 
ment,  and  within  the  Fa.  Act  of  March  27, 
171  J,  limiting  the  bringing  of  "all  actions  of 
debt  grounded  upon  any  lending  or  contract 
without  specialty  "  to  six  years.  I'lniii  <■»«• 
C.  St.  J'ass.  R.  Co.  v.  Af>'>re,  64  /'<r.  St.  -y. 

A.,  th»:  president  of  a  railroad  company, 
died  April  14,  1874.  The  company,  as  a 
creditor,  broui,'ht  assumpsit  against  his  ad- 
ministrator December  20,  1875,  «i"<^  ''c- 
covered  judgment  January  8,  1883.  On 
January  10,  1883,  the  company  issued  a 
scire  facias  against  A.'s  heirs  on  said  judg- 
ment. Th^  heirs  contended  that  because 
the  judgment  against  the  administrator  was 
not  obtained  until  seven  years  after  the  suit 
was  brought  it  wa.:  not  duly  prosecuted 
within  the  meaninp  of  the  act  of  February 
24,  1834,  and  that  the  question  of  due 
prosecution  must  be  left  to  the  jury.  The 
court,  however,  directed  the  jury  that  the 
suit  had  been  duly  prosecuted  under  the 
act,  and  a  verdict  was  rendered  in  favor  cf 
the  company,  u|)on  which  judgment  against 
the  heirs  was  entered  March  28,  18S4. 
Ht'/i!,  that  the  judgment  was  binding  upon 
the  heirs.  Phillips  v.  Allegheny  Valley  R. 
Co.,  107  Pa.  St.  472. 

In  an  action  for  purchase  price  of  certain 
property  it  appeared  that  defendant  by  reso- 
lution of  its  board  of  directors  accepted  a 
conveyance  of  such  property  from  plaintiff's 
intestate ;  that  the  acceptance  was  entered 
on  the  corporate  minutes  and  signed  by 
president  and  secretary.  Held,  that  such 
minutes  constituted  a  contract  in  writing, 
and  that  the  action  could  be  brought  there- 
on within  four  years  under  the  Rev.  St. 
Tex.  art.  3205,  enacting  that  an  action  for 
a  debt  where  the  indebtedness  is  evidenced 
or  founded  on  any  contract  in  writing  shall 
be  commenced  and  prosecuted  within  four 
years  from  the  accrual  of  said  cause  of  ac- 
tion. Texas  Western  R.  Co.  v.  Gentry,  33 
Am.  &*  Eng.  R.  Cas.  46, 69  Tex.  625, 8  S.  W. 
Rep.  98. 

3<i.  Actions  against  carriers  ol 
goods  for  breach  of  contract.— An 
action  based  upon  a  written  contract  to 
transport  goods  is  not  barred  for  sixteen 
years  under  the  Illinois  statute.  Illinois  C. 
R.  Co.  v.  Johnson,  34  ///.  389. 


1 


LIMITATIONS   OF   ACTIONS,  37. 


315 


An  action  against  a  carrier  for  an  alleged 
neglect  of  duty  properly  to  bill,  direct  and 
transport  goods  delivered  to  the  carrier  is 
barred  in  five  years  from  the  date  of  the 
alleged  tort  or  breach  of  duty,  and  not  from 
the  lime  when  the  damages  actually  ensue. 
This  is  when  the  action  is  not  brought  upon 
any  written  contract.  Pennsylvania  Co.  v. 
C/iicago,  A/.  &*  St.  J'.  A'.  Co.,  144  ///.  ly;, 
33  .V.  £•.  AVA4I5- 

In  Iowa  an  action  against  a  company  for 
damages  for  a  breach  of  a  contract  to  trans- 
port freight  is  barred  in  five  years  (loni  the 
time  of  the  inception  of  the  cause  of  action. 
Cofifi  v.  Illinois  C.  R.  Co.,  38  /owa  601.— 
Rkviewkd  in  McCabe  v.  Illinois  C.  R.  Co., 
4  McCrary  (U.  S.)  492,  13  Feii.  Rep.  827. 

A  receipt  given  by  a  company  for  goods 
to  be  transported  to  another  point  on  tiie 
line  of  the  road  is  not  a  bill  of  exchange, 
and  is  not,  therefore,  prescribed  by  five 
years  according  to  art.  3505  of  the  La.  Civ. 
Code.  Flash  v.  New  Orleans,  /.  &*  G.  N. 
A'.  Co.,  23  La,  Ann.  353. 

Where  a  land  carrier  gives  what  is  called 
a  bill  of  lading  in  form  like  a  steamboat 
bill  of  lading,  as  a  matter  of  convenience, 
or  through  the  scarcity  of  stationery,  but 
which  is  shown  to  be  only  a  mere  receipt, 
and  was  so  used,  it  is  not  prescribed  by  five 
years'  limitation  as  provided  by  La.  Civ. 
Code  art.  3505.  Flash  v.  Neiv  Orleans,  J. 
S-  G.  N.  li.  Co.,  23  La.  Ann.  353. 

An  action  of  contract  against  a  carrier 
for  the  value  of  goods  delivered  for  trans- 
portation, but  negligently  held  until  de- 
stroyed, is  not  barred  by  the  Mass.  statute 
until  six  years  after  their  destruction.  Finn 
V.  Western  R.  Corp.,  102  Mass.  283. 

An  action  against  a  company  for  dam- 
ages for  failure  to  deliver  cotton  to  com- 
mission merchants,  as  per  contract,  is  not 
barred  within  six  years,  under  the  Tennes- 
see statute.  Louisville  &*  N.  R.  Co.  v.  Neal, 
II  Lea  (Tenn.)  270. 

An  action  based  upon  a  bill  of  lading,  for 
a  failure  properly  to  carry  goods  is  an  ac- 
tion ex  contractu,  and  as  to  the  statute  of 
limitations  is  governed  by  Tex.  Rev.  St. 
art.  3207,  providing  that  every  action  *  *  * 
for  which  no  limitation  is  prescribed  shall 
be  brought  within  four  years  next  after  the 
right  to  bring  the  same  shall  have  accrued. 
Millington  v.  Texas  &*  P.  R.  Co.,  2  Tex. 
App.  (Civ.  Cas.)  148. 

In  an  action  for  unreasonable  delay  in 
the  transportation  of  merchandise,  where  a 


nortion  of  such  unreasonable  delay  oc- 
curred more  than  six  years  prior  to  the 
d.'tte  of  the  writ  and  continued  so  tlhii  a 
portion  of  the  delay  was  within  the  six 
Jears— //tV(/,  that  as  to  whaic\  er  damage  oc- 
casioned by  such  delay  which  occurred  more 
than  six  years  before  the  commeiicemeni  of 
the  suit  it  was  barred,  but  sucli  damage  as 
was  occasioned  by  inexcusable  delay  witliin 
that  time  was  recoverable.  Jones  v.  Ur,iiiii 
Trunk  A.  Co.,  16  Ai/t.  &^  Eng.  R,  Cas.  265, 
74  A/e  356. 

The  General  Railway  Act  of  Canada,  51 
Vict.  c.  2y,  ^  f.Sy,  providing  the  time  in 
which  "all  actions  or  suits  for  indemnity 
for  any  damages  or  injury  sustained  by  rea- 
son of  the  railway"  shall  be  brouglit,  lias 
no  application  to  an  action  for  damages  for 
non-delivery  of  goods  delivered  to  a  r.iilway 
for  carriage,  whether  the  action  be  on  con- 
tract or  in  tort.  White  v.  Canadian  I'ac, 
R.  Co.,  6  Man.  169.— Exi^LAlNlNt;  Faliner 
V.  Grand  Junction  R.  Co.,  4  M.  &  \V.  749; 
Carpue?'.  London  &  B.  R.  Co.,  5  Q.  H.  747. 

37.  Actions  lor  overcliarg^cs  or 
discriiiiiiiutioii.'*  —  An  action  under 
Colo.  St.  of  1885  to  recover  treble  damages 
for  an  overcharge  of  freight  is  an  action  to 
recover  a  penalty,  and  is  barred  in  one  year. 
Gooilriiige  v.  Union  Pac.  R.  Co.,  35  F'eil. 
Rep.  35.— Applvi.ng  Missouri  Pac.  R.  Co. 
V.  Humes,  115  U.  S.  512,6  Sup.  Ct.  Rep. 
no. 

An  action  to  recover  back  the  amotmt  of 
freight  paid  above  the  rate  prescribed  by 
the  railroad  commission  of  the  state  must 
be  brought,  under  Ga.  Code,  within  twelve 
months.  Parmelee  v.  Savannah.  F.  &*  W. 
R.  Co.,  78  Ga.  239.  2  S.  E.  Rep.  686. 

An  action  under  chapter  68,'  Acts  Fif- 
teenth General  Assembly  of  Iowa,  for 
five  times  the  amount  paid  as  freight,  in 
case  of  an  overcharge,  is  an  action  for  a 
statutory  penalty,  and,  under  section  2529, 
Code,  is  barred  in  two  years.  Herriman  v. 
Burlington,  C.  R.  Sf  N.  R.  Co.,  9  Am.  &* 
Eng.  R.  Cas.  339,  57  lo^va  187,  9  A'.  W.  Rep. 
378,  10  A^.  W.  Rep.  340.— Distinguishing 
Koons  V.  Chicago  &  N.  W.  R.  Co.,  23  Iowa 

493- 

The  state  statute  of  limitations  applies  to 
actions  in  the  federal  courts,  under  the  In- 
terstate Commerce  Act,  on  account  of  dis- 
crimination  in   rates.    The  right  of  action 

*  Limitation  of  action  to  recover  excessive 
charges,  see  note,  45  Am.  &  Eng.  R.  Cas.  299. 


I 


316 


LIMITATIONS    UV    ACTIUNS,  HH  Aii. 


in  Hiich  case  comen  within  Kcv.  Civ.  Code 
La.  art.  3536,  pruvidin^  u  liinitution  uf  uiic 
yL'iir  to  actiuiis  for  (iainai^e.s  resiiltiii^j  from 
r/z/dj/ollenscs.  Ci>/>/>  v.  Loiinviiie  &*  X.  A'. 
Li>..  53  //«/.  Cjt'  hPi^.A'.  Las.  25,  50 /V*/.  Kip, 
104. 

In  an  action  based  un  liiu  Mo.  statute  to 
rccuvur  hack  an  excess  above  the  statutory 
limit  fixed  as  ccjuipensatioii  for  carrying 
live  stocic,  tlie  statuKjry  l)ar  of  tiirce  years 
will  apply.  Vouii^  v.  Kansas  City,  St.  J.  &* 
C.  li.  K.  Co.,  33  Mo.  Ap/>.  5oy.— Foi.LoWKU 
IN  Winsor  Coal  Co.  v.  Chicago  &  A.  K.Co., 
52  Fed.  Rep.  716. 

:tM.  Action  tor  currying;  |>aHs<Mi|;er 
b(>yoii(l  (Ic'Htiiititioii.  —  An  action  for 
damages  by  a  passenger  for  carrying  him 
beyond  his  destination,  and  putting  him  oil 
the  train  at  a  distance  from  the  station  at 
which  he  should  have  been  allowed  to 
leave,  is  barred  by  limitation  of  one  year  in 
Texas.  iJalvfston,  H.  &•  S.  A.  K.  Co.  v. 
Kociner,  i  Tex.  Civ.  App,  191,  20  5.  U\  Kep. 

S43. 
:iU.  Ac'tioiiH  for  loMH  of  buKi^u^^v.— 

The  six-months'  limitation  clause,  K.  S.  C. 
c.  109,  §  27,  does  not  apply  to  an  action  by 
a  passenger  for  loss  of  baggage,  such  action 
arising  out  of  contract,  but  to  actions  (or 
damages  occasioned  by  the  company  in  the 
execution  of  the  powers  given  or  assumed 
by  it  to  be  given  for  enabling  it  to  main- 
tain its  railway.  Anderson  v.  Canadian 
Pac.  K.  Co.,  40  Am.  &^  Kn^.  R.  Cas.  624,  17 
O'lt.  747.  — QuoTiNO  Auger  v.  Ontario,  S. 
&  H.  R.  Co.,  9  U.  C.  C.  P.  164.  Rkvikw- 
ING  Roberts  7>.  Great  Western  R.  Co.,  13 
U.  C.  Q.  B.  615;  Browne  7>.  Brockville  & 
O.  R.  Co..  20  U.  C.  Q.  B.  202 ;  May  v.  On- 
tario  &  y.  R.  Co.,  10  Ont.  70;  McCallnm  7k 
Grand  Trunk  R.  Co.,  30  U.  C.  O.  B.  122, 
31  U.  C.  Q.  B.  527. 

40.  Actions  on  contracts  to  keep 
cars  in  repair. — A  contract  between  a 
slecpinq;-car  company  and  a  railroad  com- 
pany for  the  letting  and  hiring  of  sleeping 
cars,  provided  that  "  the  railway  company 
shall  repair  all  damages  to  said  cars  of  everv 
kind  occasioned  by  accident  or  casualty." 
/Md,  that  a  suit  brought  to  recover  the 
value  of  a  car  destroyed  was  not  a  suit  to 
recover  rent,  within  the  meaning  of  La. 
Code,  providing  that  such  actions  should  be 
barred  in  three  years.  C/iicaij-o,  St.  L.  (S>« 
A'.  O.  A'.  Co.  v.  Pullman  Southern  Car  Co., 
56  Fed.  Kep.  705. 

41.  Actions  on  coupons.— Ordinary 


muidcipal  bonds  issued  tor  railroad  stock 
are  specialties,  and  are  not  governed  by  a 
statute  of  limitations  relating  to  simple 
contracts.  And  a  suit  on  coupons  is  not 
barred  unless  the  lapse  of  time  is  sulhcicnt 
to  bar  a  suit  on  the  bonds.  Le.^hi^ton  v, 
liutler,  14  Wall.  (U,  S.)  28:.  A'enos/ia  v. 
Lamson,  9  Wall.  (U.  S.)  477.--KKVIKWKI) 
l.\  McClelland  v.  No-' )lk  Southern  R.  Co., 
1 10  N.  Y  .\Gi),—liurton  v.  Koshkonon^,  4  /•«■</. 
Kep.  373.— l)iSTiN(;i;i.sniN(i  Amy  v,  Du- 
bu()ue,  98  U.S.  470;  Clark  v,  Iowa  City, 
20  Wall.  583.  -  Coler  v.  Santa  /V  County 
Com'rs,  (,\'.  Mex.)  27  Pac.  Kep.  619. 

Where  town  bonds  are  issued  in  aid  of  a 
railroad,  which  are  soon  after  repudiated 
and  the  payment  of  interest  refused,  and  a 
suit  is  brought  to  recover  upon  |)ast-due 
coupons,  and  the  law  is  declared  unconsti- 
tutional, and  judgment  is  entered  for  the 
town,  a  subsequent  action  for  money  had 
and  received  will  be  barred,  under  the  Mis- 
souri statute,  in  five  years  from  the  time  the 
bonds  were  lepudiated.  Morton  v.AWada, 
52  Fed.  Kep.  350.  10  if.  S.  App.  333,  3  C".  C. 
A.  109;  (tjf^irminjf  ^i  /.></.  Kep.  582. 

42.  Actions  on  subscriptions  to 
stoclt.— The  La.  Statute  of  1852,  which  de- 
clares that  "  the  prescription  of  all  other 
open  accounts  the  prescription  of  which  is 
ten  years  under  existing  laws  shall  be  pre- 
scribed by  three  years  "  is  not  applicable  to 
the  case  of  a  demand  for  a  balance  of  a 
subscription  to  the  capital  stock  of  a  cor- 
poration. A'eTV  Orleans,  J,  &*  G.  N.  K. 
Co.  V.  I'stlin,  12  La.  Ann.  184.  —  Dl.siiN- 
GUisiiED  IN  Clinton  &  P.  H.  R.  Co.  v. 
Eason,  14  La.  Ann.  828. 

By  the  Ohio  Code  of  Civ.  Pro.  actions 
to  recover  the  amount  of  subscriptions  for 
stock  are  limited  to  fifteen  years,  dating 
from  the  times  fixed  in  the  calls  for  pay- 
ment;  and  where  no  circumstances  inter- 
pose to  render  it  inequitable,  a  creditor's 
bill  may  be  maintained  to  subject  the  amount 
due  to  the  payment  of  his  claim  any  time 
within  that  period.  Warner  v.  Callender, 
20  Oliio  St.  190. 

A  subscription  conditioned  for  the  prose- 
cution of  the  construction  of  the  road  will 
be  barred,  in  Pennsylvania,  unless  the  con- 
dition be  performed  and  a  call  made  within 
six  years.  Pittsburgh  &^  C.  K.  Co.  v.  Cra- 
haw,  2  Grant's  Cas.  (Pa.)  259.  Pittsburgh 
<S-  C,  K.  Co.  V.  Graham,  36  Pa.  St.  77-— 
Foi,i.owi»NG  Pittsburgh  &  C.  R.  Co.  v. 
Byers.  3a  Pa.  St.  22  ;  McCully  v.  Pittsburgh 


f'    ill 


LIMITATIONS  OF   ACTION^,  4;i-40. 


:n: 


&  C.  R.  Co.,  32  Pa.  St.  7S.—  ll7n//i,i))i  v. 
r,»pisylvama  &•  N.  Y.  C,  <S-  A'.  Co.,  9  r/ttia, 
(P,i.)  284. 

The  silence  of  the  subscriber  after  the  six 
years  liave  expired,  and  liis  slandin),'  by 
wiiile  lar>{e  expenditures  arc  beinn  made, 
will  not  estop  him  fiom  pleading  the  statute; 
it  is  a  bar  in  equity,  as  at  law.  Pilhlmrgh 
ir*  C,  A'.  Co.  V.  Crahmn.  36  l\t.  St.  Tj. 

The  proper  limitation  to  an  aciicjn  by  a 
company  against  its  members  for  ciilis,  under 
.S  and  9  Vict.  c.  16,  is  twenty  years.  Cork 
&*  li.  A'.  Co,  V.  O'oo(/e,  13  C.  li.  827,  17  Jur. 
555,  22  L.  J.  C.  P.  iy8. 

4.'{.  ActioiiN  by  vroflitorH  UKuiiiHt 
sto(!kli<»l<l<>rN.— A  suit  brou^dit  against  a 
stockholder  of  the  Lexington  Railroad  & 
Coal  Mining  Co.  (VVagn.  Mo.  St.  291, 
■:  13)  more  than  u  year  after  the  debt  was 
contracted  was  barred  by  the  statutory 
limitation  of  the  act  touching  manufactur- 
ing and  business  companies  (VVagn.  St.  336, 
!;  13).  The  one-year  limitation  of  time  for 
commencing  suit  was  not  so  short  as  to 
justify  the  supreme  court  in  declaring  it 
unreasonable,  and  the  law  for  that  reason 
invalid.  The  act  was  wholly  prospective, 
and  therefore  constitutional.  Adamson  v. 
Davis,  47  Mo.  268. 

44.  Suit  to  coiii|iel  applinitioii  of 
railway  tax  to  payiiiviit  of  aid  IioikIh. 
—The  statute  does  not  bar  an  action  of 
mandamus  to  compel  trustees  of  a  town- 
ship to  certify  the  fact  to  the  county  treas- 
urer, under  Iowa  Laws  of  1872,  chs.  2  and 
50,  requiring  such  trustees,  where  aid  has 
been  voted  for  a  road,  to  certify  when  the 
company  has  expended  the  amount  of  the 
taxes  in  the  township.  Harwoodv.  Quinby, 
44  loaua  385. 

Where  town  bonds  have  been  issued  in 
aid  of  a  railroad,  and  an  action  is  com- 
menced to  compel  a  county  treasurer  to 
invest  the  taxes  paid  by  the  railroad  so  as 
to  pay  oflf  the  bonds,  he  cannot  claim  the 
protection  of  the  statute  of  limitations  so 
as  to  limit  a  recovery  to  such  as  were  col- 
lected within  six  years  of  the  commence- 
ment of  the  action.  Wood  v.  Monroe  County 
Sup'rs,  50  Htm  i,  iZ  N.  Y.  S.  P.671,2  N. 
Y.  Supp,  369. 

Where  a  county  treasurer,  instead  of  ap- 
plying taxes  assessed  on  a  railroad  in  a 
town,  to  the  redemption  of  bonds  of  the 
town  issued  in  aid  of  a  railroad,  as  required 
by  N.  Y.  Act  of  1869,  ch.  907,  as  amended 
in  1871.  ch.  283,  applies  them  to  the  pay- 


ment of  county  and  state  taxes,  a  cause 
of  action  accrues  when  the  misap|>ropria- 
tion  is  made,  and  an  action  biouglit  nuire 
than  six  years  thereafter  is  barred.  Straiit^'/t 
\,  Jiffcrson  County  Sup'r^,  i  ry  A'.  J'.  212,  .'3 
A'.  L.  J\ip.  552,  28  i\.  V.  S.  A'.  (/>7  ;  ajjirm  ■ 
ini;  5(j  //////  54,  3  A'.  J'.  Supp.  no,  23  .\'.  )'. 
.S'.  A'.  940.-  Di.sriNdUisiiK.i)  IN  Spaiiiding 
T.  Arn(jl(l,  125  N.  Y.  194.  FdI.I.uwkd  ix 
Wood  7).  Monroe  County  Sup'rs,  9  N.  V. 
Supp.  699. 

■in.  SiiitH  afcaiiiMt  aMNi};ii('<>M  and 
liquidators. — The  provisi(jn  in  U.  .S.  Rev. 
St.  .J  5047,  limiting  the  time  in  which  suits 
can  be  brought  by  or  against  an  assignee  in 
bankruptcy  to  two  years,  does  not  apply  to 
suits  pending  at  the  time  of  the  bankruittcy, 
and  wherein  the  assignee  is  substituted  as 
plaiiitilT.  Jt'nkins  v.  C/iidigo  &»  X,  W.  A'. 
Co..  6  III.  A  pp.  192. 

A  decree  ordering  the  liquidator  of  an 
insolvent  L(juisiana  corporation  \.o  collect 
the  assets  as  speedily  as  possible  is  not  pre- 
scribed by  ten  yeai  s.  The  judgment  directs 
the  liquidator  to  discharge  a  duty  attached 
to  his  (jIFicc,  and  it  is  not  a  moneyed  judg- 
ment. Clinton  &^  P.  II.  R.  Co.  v.  IMiitaker, 
22  I.a.  Ann.  209.  Clinton  &^  P.  II.  A'.  Co. 
v.  Pee,  22  La.  .Inn.  287. 

40.  ActioiiM  founded  011  fraud.— 
Tlie  holder  of  bonds  of  a  railroad  in  Flor- 
ida exchanged  coupons  attached  thereto  for 
preferred  stock.  The  road  and  franchises 
were  subsequently  sold  to  pay  the  bonds  of 
the  road,  including  the  above.  Eight  years 
after  the  sale  he  brought  suit  to  set  aside 
the  exchange  on  the  ground  of  fraud.  No 
claim  of  after-discovered  facts  w;'.s  made. 
Held,  that  the  suit  was  barred  by  the  statute 
of  lin\itations  of  that  state.  Coddington  v. 
Pensncola  &•  G.  A'.  Co.,  103  I/.  S.  409. 

A  railroad  company  filed  a  bill  to  enjoin 
the  collection  of  county  taxes  in  Nebraska, 
and  by  consent  of  the  county  authorities 
took  a  decree.  More  than  four  years  there- 
after, the  personnel  of  the  county  author- 
ities having  changed,  they  filed  a  bill  in  the 
U.  S.  circuit  court  to  set  aside  the  decree, 
on  the  ground  of  fraud  .ind  collusion.  Held. 
that  the  state  statute,  limiting  the  right  of 
action  for  relief  on  the  ground  of  fraud  to 
four  years,  would  apply.  Boone  County  v. 
Burling/on  <&-  M.  A*.  /?.  Co.,  139  [/.  S.  684, 
1 1  Sup.  Ct.  Kep.  687. 

The  doctrine  that  laches  will  not  be  im- 
puted to  a  government  for  a  failure  on  the 
part  of  its  officers  to  perform  their  duty — 


I 


318 


LIMITATIONS   OF    ACTIONS,  47, 48. 


t:m 


ipi 

I 
,1 


, 


i 


^ 


held,  not  to  apply  to  such  a  case.  Jjoonc 
County  V.  Burlnif^toH  (&>•  M.  A'.  A'.  Co.,  139 
U.  S.  684,  1 1  Sup.  Ct.  Rep.  6S7. 

Wheri  a  contractor  sues  for  a  breach  of 
contract,  and  alleges  fraud  in  a  transfer  of 
the  company's  property,  but  afterwards 
abandons  the  charge  of  fraud,  the  statute 
begins  to  run  from  tiie  time  it  is  abandoned, 
and  will  constitute  a  bar,  under  the  Texas 
statute,  in  four  years,  so  that  the  charge 
cannot  be  revived.  Sltirley  v.  IVaco  Tap 
A'.  Co.,  78  Tex.  131,  10  S.  IV.  Rep.  1,43.— 
Quoting  Cassaday  v.  Anderson,  53  Tex. 

535- 

47.  CuiHleiniiatiuii   proceedings.— 

The  three-years'  statute  of  limitations  (N. 
Car.  Code,  g  155,  subd.  2  and  3)  is  no  bar  to 
condemnation  proceedings,  and  it  seems 
that  there  is  no  statute  of  limitations  pro- 
vided for  such  proceedings.  Land  v.  Wil- 
viini^ton  &*  W.  R.  Co.,  47  Am.  &>  Eng.  R. 
Cas.  161,  107  A'.  Car.  72,  12  S.  E.  Rep.  125. 

48.  Profcediiij^s  to  obtiiiu  dtiiii- 
age.s  lor  land  eoiideiuiied.*— /vn  action 
by  a  landowner  to  enforce  his  claim  to  com- 
pensation against  the  land  taken,  or  to  en- 
join the  company  from  using  it  until  com- 
pensation is  made,  is  barred  in  seven  years 
under  the  Arkansas  statute  applicable  to 
actions  to  recover  lands.  Organ  v.  Mevip/iis 
&•  L.  R.  R.  Co.,  21  Am.  <S-  E>,g.  R.  Cas.  75, 
51  Ark.  235,  II  i.   W.  Rep.  96. 

A  petition  for  a  writ  to  assess  the  dam- 
ages occasioned  by  the  construction  of  a  rail- 
road over  the  petitioner's  lands,  under  the 
provisions  o  •>  ctions  905-912,  Ind.  Rev.  St. 
1881,  is  barrcv.  by  the  fifteen-years' statute 
of  limitations.  Shortle  v.  Terre  Haute  &*  I. 
R.  Co.,  $1  Am.  &*  Eng.  R.  Cas.  576,  131 
/'id.  338,  30  N.  E.  Rep.  1084.  S/iort/e  v. 
Louisville,  N.  A.  &^  C.  R.  Co.,  130  Ind.  505, 
30  A''.  E.  Rep.  639. 

The  length  of  time  prior  to  bringing  suit 
for  which  the  owner  can  recover  damages 
against  a  railroad  company  for  an  unauthor- 
ized use  of  his  land  discussed,  but  not  de- 
cided. Cox  V.  Louisville,  N.  A.  <S^  C.  R.  Co., 
48  Ind.  178,  8  Am.  Ry.  Rep.  296.— DISTIN- 
GUISHED IN  Sherlock  v.  Louisville,  N.  A.& 
C.  R.  Co.,  115  Ind.  22,  14  West.  Rep.  843, 17 
N.  E.  Rep.  171. 

To  a  judgment  of  county  commissioners, 
fixing  the  damages  for  real  estate  taken  for 
the  location  of  a  railroad,  the  Maine  statute 

*  Limitation  of  proceedings  to  recover  com- 
pensation, see  note,  39  Am.  &  Eng.  R.  Cas.  60. 


Is  a  bar  after  six  years.     Movers  v.  Kennebec 
&•  P.  R.  Co.,  58  iMe.  279. 

Where  property  has  been  taken  for  a  rail- 
road, and  the  damages  assessed,  but  not 
paid,  a  subsequent  proceeding  to  enforce 
payment  of  the  damages  is  barred,  under  the 
Missouri  statute,  in  ten  years.  The  provi- 
sion of  the  statute  providing  for  the  en- 
forcement of  judgments  in  twenty  years 
does  not  apply.  Duncan  v.  Missouri  Pac. 
R.  Co..  22  Mo.  App.  614. 

Where  a  landowner  institutes  a  proceed- 
ing, under  provisions  of  an  act  incorporating 
a  railroad  company,  to  recover  the  value  of 
land  taken  for  the  road,  a  provision  in 
the  charter  requiring  such  actions  to  be 
brought  within  two  years  from  the  comple- 
tion of  the  road  applies,  and  the  action  is 
barred  if  not  brought  within  that  time.  Vin- 
son V.  North  Carolina  R.  Co.,']\  N.  Car.  510, 
13  Am.  Ry.  Rep.  396.— Rekerred  to  in 
Carolina  C.  R.  Co.  v.  McC;iskill,  25  Am.  & 
Eng.  R.  Cas.  83,  94  N.  Car.  746. — Carolina 
C.  R.  Co.  v.  McCashill,  25  Am.  &«•  Etig.  R. 
Cas.  83,  94  A'.  Car.  746. 

A  presumption  of  a  conveyance  arises  from 
the  act  of  taking  possession  and  building 
the  road,  and  the  owner's  failure  within  the 
two  years  to  take  steps  to  have  his  damages 
ascertained.  Carolina  C.  R.  Co.  v.  McCaskill, 
25  Am.  ^^  Eng.  R.  Cas.  83,  94  A'.  Car.  746. 
—Distinguished  in  Beattie  7>.  Carolina 
C.  R.  Co.,  108  N.  Car.  42S.—Gudger  v.  Ric/i- 
tnond  6r'  J).  R.  Co.,  43  Am.  &^  Eng.  R.  Cas 
606,  106  iV.  Car.  481,  II  5.  E.  Rep.  515. 

The  limitation  for  filing  petitions  in  error 
prescribed  in  ^  12  of  the  Ohio  Act  of  April 
23,  1872  (69  Ohio  L.  88),  applies  as  well  to 
proceedings  instituted  by  the  landowner 
under  section  21  of  the  act  as  to  proceed- 
ings instituted  by  the  railroad  to  appropri- 
ate land.  Clerieland  &*  M.  V.  R.  Co.  v. 
Wick,  35  Ohio  St.  247.— DISTINGUISHING 
Robinson  v.  Orr,  16  Ohio  St.  285 ;  Cleve- 
land, C.  &  C.  R.  Co.  V.  Mara,  26  Ohio  St. 
185.  Reviewing  Little  Miami  R.  Co.  v, 
Hopkins,  19  Ohio  St.  279. 

Damages  for  land  taken  by  a  railroad  are 
not  a  "  penalty,"  and  therefore  not  within  a 
law  limiting  the  right  to  sue  to  recover 
penalties  to  two  years.  /Delaware,  L.  &» 
IV.  R.  Co.  V.  Bur  son,  61  Pa.  St.  369.— Dis- 
tinguishing Forsterz/.  Cumberland  Valley 
R.  Co.,  23  Pa.  St.  37' 

Where  a  company  locates  its  road  on  pri- 
vate land  without  paying  the  damages,  the 
statute  of  limitations  does  not  bar  an  action 


»l 


LIMITATIONS   OF   ACTIONS,  40. 


319 


for  the  subsequent  use  of  the  land.  McClin- 
ton  V.  Pittsburg,  Ft.  IV.  <S-  C.  /i.  Co.,  66  Fa. 
St.  404. 

The  ri^ht  of  action  against  a  company  for 
damages  for  injuries  to  land  taken,  injured, 
or  destroyed  in  the  construciion  of  its  cor- 
porate works  is  not  affected  by  tlie  six- 
years'  statute  of  limitations  of  March  27, 
1713,  I  Sm.  L.  76.  Seipcl  v.  Baltimore  &* 
C.  V.  A\  Extension  Co.,  129  Pa.  5/.  425,  18 
Atl.  Rep.  568. 

Where  land  is  held  by  a  trustee  for  the 
use  of  another  for  life,  and  large  powers  of 
control  are  vested  in  the  cestui  que  trust, 
who  is  in  possession,  and  grants  a  riglit  of 
way  for  a  road  over  the  land,  the  trustee, 
after  the  death  of  the  cestui  que  trust,  and 
after  the  full  statutory  period  (sixteen  years) 
has  run,  cannot  recover  the  land.  Tutt  v. 
Port  Royal  ^^  A.  R.  Co.,  28  So.  Car.  388,  5 
S.  E.  Rep.  831. 

One  who  voluntarily  consents  to  the  oc- 
cupation of  his  land  by  a  railway  roadbed 
for  seventeen  years.,  with  no  other  compen- 
sation therefor  than  such  as  would  result 
to  him  in  common  with  others  from  the 
construciion  of  the  road,  cannot  recover 
damap;es  for  the  use  of  his  land.  Texas  &* 
j\'.  0.  R.  Co.  V.  Sutor,  59  Tex.  29. 

The  hen  which  an  owner  has  for  land 
damages  on  land  taken  by  a  railroad  for  its 
use  is  not  barred  by  the  Vt.  statute,  if  at 
all,  until  fifteen  years  have  elapsed,  if  such 
owner  has  clearly  evinced  an  intention  to 
hold  the  title  until  the  damages  are  paid. 
Robinson  v.  Missisqvoi  R.  Co.,  30  Ant.  &* 
Eiig.  R.  Cas.  299,  59  Vt.  426,  4  N.  Eng.  Rep. 
891,  \o  Atl.  Rep.  522. 

Tlic  right  of  compensation  for  land  taken 
by  a  railway  company  is  not  barred  in  On- 
tario short  of  twenty  years,  and  is  not 
barred  by  the  Claimant's  title  to  the  land 
being  extinguished  by  reason  of  the  railway 
company  hav  g  been  in  possession  for  ten 
years.  Ross  v.  Grand  Trunk  R.  Co.,  25  Am, 
6-»  Eng.  R.  Cas.  209,  10  Ont.  447.  Esseryv. 
Grand  Trunk  R.  Co.,  21  Ont.  J24. — Fol- 
lowing Ross  V.  Grand  Trunk  R.  Co.,  10 
Ont.  447. 

40.  Actions  for  damages  to  land 
iu  the  construction  of  railways. — 
Limitation  is  available  as  a  defense  against 
a  statutory  remedy  for  the  recovery  of  dam- 
ages resulting  from  the  construction  of  a 
railroad,  and  in  Texas  the  statute  of  two 
years  applies.  Houston  &*  T.  C.  Jt.  Co.  v. 
CAaffin,  14  Am.  6-  Et^.  R.  Cas.  437,  60  Tex. 


553.— Following  Forster  v.  Cumberland 
Valley  R.  Co.,  23  Pa.  St.  371. 

The  limitation  of  two  years  within  which 
an  action  must  be  commenced,  as  prescribed 
in  section  12  of  the  General  Corporation 
Act,  as  amended  April  15,  1857  (54  Ohio  L. 
133),  applies  only  in  case"  where  a  railroad 
is  constructed  in  a  highway,  or  on  other 
public  ground,  under  an  agreement  with  the 
public  authorities,  or  after  condemnation, 
as  provided  in  said  section.  Lawrence  R. 
Co.\.  Cobb,  35  Ohio  St.  g\. — DlstinguishkI) 
IN  Columbus,  S.  &  C.  R.  Co.  v.  Mowatt,  35 
Ohio  St.  284. 

To  maintain  trespass  against  a  railway 
company  in  Canada  lor  damages  done  in 
the  construction  of  its  line,  the  action 
must  be  commenced  within  six  munths 
from  the  time  of  the  committing  of  the 
trespass.  Eollis  v.  Port  Hope  &»  L.  R.  Co., 
9  U.  C.  C.  P.  50. 

Section  34  of  R.  S.  O.  c.  165,  which  fixes  a 
limitation  of  six  months.for  bringing  actions 
for  any  damage  or  injury  sustained  by 
reason  of  any  railway,  does  not  apply  to  an 
action  brought  against  a  railway  company 
for  damages  for  wrongfully  taking  earth 
from  plaintiff's  land.  Beards.  Credit  ]'al- 
ley  R.  Co.,  23  Am.  &•  Eng.  R.  Cas.  142,  9  Ont. 
616.  —  Following  Brock  Tp.  v.  Toronto 
&  N.  R.Co.,  37  U.C.  Q.  B.  yji.— Brock  Tp. 
v.  Toronto  Sr-  N.  R.  Co.,  yj  U.  C.  Q.  B.  372. 
—Distinguishing  Follis  v.  Port  Hope  & 
L.  R.  Co.,  9  U.  C.  C.  P.  50.— Followed 
IN  Beard  v.  Credit  Valley  R.  Co.,  9  Ont, 
616. 

The  prescription  of  six  months  enacted 
in  §  27  of  the  Railway  Act  R.  S.  Can.  c. 
109  is  applicable  to  cases  where  damage  is 
caused  to  land  through  a  preliminary  sur- 
vey made  with  the  object  of  locating  the 
railway  line  over  the  land,  where  the  line  so 
surveyed  was  subsequently  abandoned  and 
a  new  location  adopted.  Ravary  v.  Onta- 
rio &•  Q.  R.  Co.,  5  Montr.  Super.  54. 

The  Dominion  Government  Railways  Act 
(Acts  of  1881,  c.  25,  §  109)  provides  that  "  no 
action  shall  be  brought  against  any  officer, 
employe,  or  servant  of  the  department  of 
railways  and  canals  for  anything  done  by 
virtue  of  his  office,  service,  or  employment, 
except  within  three  months  after  the  act 
committed,  and  upon  one  montl\'s  previous 
notice  in  writing."  Defendants  entered 
into  a  contract  with  the  crown,  represented 
by  the  minister  of  railways  and  canals,  for 
the  construction  of  a  branch  of  the  Inter- 


s 


10 


LiMITATIONS   OF   ACTIONS,  50. 


.1 


■'I  I 


^•i 


colonial  railway  at  Dartmouth,  N.  S.,  and 
in  the  prosecution  of  their  work  under  the 
contract  entered  upon  plaintiff's  land.  An 
action  having  been  brought  against  defend- 
ants for  breaking  and  entering — Ae/ti,  that 
defendants  were  "employes"  within  the 
meaning  of  the  act,  and  entitled  to  the 
protection  given  therein.  Kearney  v.  Oal-es, 
20  A'ov.  Sc.  30. 

50.  Suits  by  abutters  f<>r  damages 
from  occupation  of  streets.— In  Iowa 
an  action  against  a  railroad  company  for 
damages  to  the  owner  of  a  city  lot,  on  ac- 
count of  the  construction  of  the  railroad 
upon  the  street  on  which  the  lot  abuts, 
does  not  involve  title  to  real  estate  by  ad- 
verse possession,  but  is  simply  an  action 
for  damages  provided  by  statute  in  such 
cases ;  and  such  action  is  barred  in  five 
years  after  it  accrues.  Pratt  v.  Dcs  Moines 
N.  IV.  K.  Co.,  32  Am.  &•  Eng.  R.  Cas.  236, 
72  Iowa  249,  33  A^  W.  Rep.  666.— DlSTiN- 
GUISHING  Merchants'  Union  Barb  Wire  Co. 
V.  Chicago,  B.  &  Q.  R.  Co.,  70  Iowa  105. 
—Distinguished  in  Harbach  v.  Des 
Moines  &  K.  C.  R.  Co.,  43  Am.  &  Eng.  R. 
Cas.  II 5,  80  Iowa  593,  44  N.  W.  Rep.  348. 

The  time  within  which  damages  arising 
from  proceedings  to  raise  a  street  by  a  rail- 
road company,  under  Mass.  Rev.  St.  ch.  39^ 
§  67,  must  be  claimed  is  limited  to  three 
years  by  Rev.  St.  ch.  39,  g  58.  Gardiner  v. 
Boston  <S-  W.  R.  Corp.,  9  Cush.  {Mass.)  i. 

In  Michigan  an  action  by  a  private  per- 
son, as  for  a  continuing  injury  in  keeping  a 
railway  track  in  the  street  near  his  premises, 
is  subject  to  the  six-year  limitation,  if  de- 
fendant relies  on  permission  given  longer 
ago,  and  plaintiff  seeks  to  show,  by  such 
evidence  as  remains,  that  his  permission 
was  obtained  by  fraud.  Krueger  v.  Grand 
Rapids  &>  I.  R.  Co.,  14  Am.  &^  Eng.  R.  Cas. 
98,  51  Afic/i.  142,  16  N.  W.  Rep.  313. 

In  Nebraska  an  action  for  damages  to 
plaintiff's  real  estate,  caused  by  the  com- 
pany's building  its  tracks  and  operating  its 
road  across  the  street  and  on  a  lot  lying 
next  to  plaintiff's  property,  must  be  brought 
within  four  years  of  the  date  of  the  con- 
struction of  such  railroad.  Omaha  &•  R. 
V.  R.  Co.  v.  Moschel,  56  Am.  &*  Eng.  R, 
Cas.  :.74,  38  Neb.  281,  56  A^,  W.  Rep.  875. 

In  Ohio  the  right  of  an  abutting  owner 
to  recover  for  temporary  injury  resulting 
from  a  change  of  grade,  or  for  an  additional 
track  of  a  railroad,  is  limited  to  four  years 
prior  to  the  commencement  of  an  action 


for  the  same.  Little  Miami  R.  Co,  v.  Ham- 
bleton,  14  Am.  &'  Eng.  R.  Cas,  126,  40  Ohio 
St.  496. 

The  right  to  lay  a  track  in  a  village  street 
does  not  give  the  company  the  right  to 
raise  the  grade  of  the  street,  and  if  it  does 
so,  an  abutting  owner  may  maintain  an  ac- 
tion for  damages  any  time  within  twenty- 
one  years.  Little  Miami  R.  Co.  v.  I/ainlk- 
ton,  14  Am.  (S-  Eng.  R.  Cas.  126.  40  O/iio  .^t. 
496. — Applied  in  Grafton  f.  liahimore  iS; 
O.  R.  Co.,  17  Am.  &  Eng.  R.  Cas.  200,  :i 
Fed.  Rep.  309.  Approvkd  in  Stickky  v. 
Chesapeake  &  O.  R.  Co.,  52  Am.  &  \ln^.  \\. 
Cas.  56,  93  Ky.  323,  20  S.  \V.  Rep.  261. 

The  owner  of  the  soil  of  a  highway,  taken 
by  a  company  for  its  roadway,  under  an 
agreement  between  the  company  and  the 
commissioners  of  the  county  as  to  the  terms 
and  manner  of  its  use,  as  provided  by  Kev. 
St.  §  3283,  is  entitled  to  compensation 
for  its  appropriation,  and  may  compel  the 
company,  under  the  provisions  of  Rev.  St. 
§  6448,  to  condemn  and  pay  for  the  same ; 
and  such  right  is  not  barred  by  the  lapse 
of  less  than  twenty-one  years  from  the  time 
of  such  occupation  by  the  company.  The 
limitation  of  two  years  contained  in  section 
32S3  applies  only  to  incidental  injuries  to 
property  on  and  adjacent  to  the  roadway, 
occasioned  by  the  location  and  construction 
of  the  railroad,  and  does  not  include  tlie 
remedy  for  injuries  to,  or  the  taking  of.  tiie 
land  itself.  Lawrence  R.  Co.  v.  O'Harra, 
48  Ohio  St.  343,  28  A^.  E.  Rep.  175. 

A  company  wrongfully  laid  its  track  In  a 
public  highway,  and  after  it  had  continued 
the  obstruction  more  than  six  years  an  ac- 
tion was  brought  against  it  under  70  Ohio 
L.  53.  Held,  that  neither  the  limitation  of 
four  years,  nor  that  of  six  years,  was  a  bar 
to  the  action.  Laivrence  R.  Co.  v,  Mahoniiiji 
County  Com'rs,  35  Ohio  St.  i. 

A  company  in  laying  its  track  in  a  public 
street,  in  pursuance  of  authority  from  the 
proper  officers  of  the  municipal  corpora- 
tion, necessarily  lengthened  a  bridge  across 
such  street,  and  extended  the  approaches 
to  the  bridge  along  the  street  in  whicli 
it  was  situated,  by  which  means  the  grade 
was  raised  in  front  of  A.'s  residence,  to  her 
injury.  A.'s  premises  did  not  abut  on  the 
street  in  which  the  track  was  laid,  but  were 
near  thereto,  //eld,  that  the  case  was  gov- 
erned by  section  12  of  the  general  act  of 
1852,  relating  to  corporations,  as  amended 
in  1857  (54  Ohio  L.  133),  and  hence  the  ac- 


LIMITATIONS   OF  AClTOiNS,  51, 62. 


321 


tioii  was  barred  in  two  years  from  the  com- 
pletion of  ilie  worlv.  Columbus.  S,  &•  C.  A'. 
Co.  V.  Mouuitt,  35  0/uo  SL  284,— Distin- 
guish iNU  Lawrence  K.  Co.  v.  Cobb,  35 
Oiiio  St.  94.;  Lawrence  K.  Co.  v.  Williams, 
35  Ohio  St.  16S  — Ai'i'i.iKU  IN  Graiion  v. 
Baltimore  &  O.  R.  Co.,  17  Am.  «&  Eng.  K. 
Cas.  200,  21  F"ed.'  Kep.  309. 

51.  ArtioiLs  tor  (laiiiaKUii  siiistaiaud 
by  {;:ei»enil  opvi'sitioii  of  railroml.— 
Whei;  a  town  has  been  compelled  to  pay 
d;)inaji[es  on  account  of  a  def'^ct  in  a  high- 
way, caused  by  a  construction  of  a  railroad 
thereon,  it  may  maintain  an  action  therefor 
commenced  within  a  year  from  the  time 
when  Its  hability  is  ascertained  and  fi.xed. 
I'lazie  V.  Penobscot  R.  Co.,  49  Me.  119. — 
(JU(JTED  IN  Pittsburg,  C.  &  Y.  R.  Co.  v. 
Moses,  24  Am.  &  Eng.  R.  Cas.  295,  2  Atl. 
Kep.  188. 

The  provisions  of  the  8  Vict.  c.  25,  §  49,  and 
i4and  15  Vict.  c.  51, §  20,asfothe  institution 
of  actions  against  railroad  companies  and 
others  within  the  period  of  six  months,  do 
not  apply  to  actions  for  damages  arismg 
from  neglect  and  carelessness  of  the  com- 
pany's servants  in  the  ordinary  management 
of  the  railroad.  Marshall  v.  Grand  Trunk 
/>'.  Co.,  5  Low.  Can.  339. 

So  of  the  prescription  or  limitation  of  six 
months  established  by  the  16  Vict.  c.  46,  § 
19.  Germain  v.  Montreal  &•  N.  V.  A'.  Co., 
6  Lo7ii.  Can.  172. 

The  prescription  of  one  year  under  43-44 
Vict.  (Q.)  c.  24,  §  6,  applicable  to  claims  for 
damages  against  provincial  railways,  applies 
where  the  damage  was  caused  by  a  train  of 
a  company  under  provincial  control,  though 
the  train  was  running  at  the  time  on  a  por- 
tion of  the  line  of  a  federal  railway  com- 
|)any  over  which  the  former  had  running 
rights.  A'ort/t  Shore  A'.  Co.  v.  Mc  Willie,  5 
Montr.  L.  R.  122. 

The  same  prescription  applies  though  the 
provincial  railway  before  the  accident  oc- 
curred had  been  transferred  by  46  Vict. 
(D.)  c.  9,  §  27,  to  Dominion  control.  North 
Shore  R.  Co.  v.  Mc  Willie,  5  Montr,  L.  A'. 
122. 

Section  287  of  51  Vict.  c.  29  (D.),  "The 
Railway  Act,"  by  which  the  time  for  bring- 
mjj  an  action  for  indemnity  for  any  dam- 
ages or  injury  sustained  by  reason  of  the 
railway  is  extended  to  one  year,  applies  to 
the  Grand  Trunk  Ry.  Co,  of  Canada.  Zim- 
mer  v.  Grand  Trunk  R.  Co.,  2t  On/.  628. 

The  defendants  set  up  that  the  injuries 
6  D.  R.  D.— 31. 


complained  of  happened  more  than  six 
months  before  action  brought,  and  that 
the  action  was  barred  by  the  twenty- 
seventh  section  of  tlie  Consolidated  Rail- 
way Act,  to  which  the  piaintill  nemuried. 
/Jeld,  tliat  any  damage  done  tlirough 
negligence  upon  a  railway  in  ilie  carriage 
of  passengers  and  the  like  is  damage 
done  "by  reason  of  the  railway."  May 
v.  Ontario  &^  Q.  R.  Co.,  26  Am.  iir' 
Eng.  R.  Cas.  337,  10  Out.  70.— Fulluw,no 
Browne  v.  Brockviile  &  O.  R.  Co.,  20  U.  C, 
Q.  B.  202 ;  McCallum  v.  Grand  Trunk  R, 
Co.,  30  U.  C.  y.  B.  122  ;  Kelly  v.  Ottawa  St. 
R.  Co.,  3  Ont.  App.  616.  Rkvikwing  Pren- 
dergast  v.  Grand  Trunk  R.  Co.,  25  U.  C.  Q. 
B.  193 ;  Hammersmith  &  C.  R.  Co.  v.  Brand, 
L.  R.  4  H.  L.  Cas.  220. 

52.  iyectiueut.— Seven  years' adverse 
possession  of  land,  wrongfully  taken  by  a 
railroad  company  in  the  construction  of  its 
road,  will  bar  an  action  to  enforce  the  claim 
of  the  owner  against  the  land,  or  to  enjoin 
the  company  from  using  it  until  compensa- 
tion is  made.  Organ  v.  Memphis  &'  L.  R. 
R.  Co.,  39  Am.  &*  Eng.  R.  Cas,  75,  51  Ark. 
235,  1 1  S.  W.  Rep.  r)t\. 

If  a  company  in  possession  of  a  railroad 
and  its  appendages,  under  a  deed  which  is 
color  of  title,  acquired  in  good  faith,  pays 
all  taxes  legally  assessed  thereon  for  seven 
successive  years  preceding  the  commence- 
ment of  a  suit  in  equity  to  divest  its  title  to 
land  occupied  by  it  as  a  right  of  way,  this 
will  be  a  complete  defense.  Lake  Shore  &• 
M.  S.  R.  Co.  V.  Pittsburg,  Ft.  W.  &*  C.  R. 
Co.,  71  III.  38. 

The  continued  occupation  of  land  by  a 
railway  for  a  right  of  way  for  over  twenty 
years,  with  acts  of  ownership,  will  constitute 
a  bar  to  a  recovery  by  the  former  owner. 
But  where  such  possession  is  not  held  un- 
der color  of  title,  it  will  extend  only  to  the 
portion  actually  occupied,  fames  v.  Indian- 
apolis &-  St.  L.  R.  Co.,  gi  III.  554. 

Where  the  party  under  whom  a  plaintiff 
in  ejectment  claimed  land  occupied  by  a 
railway  company  made  a  conveyance  of  the 
same  to  a  railway  company,  moved  his 
fence,  and  gave  it  possession  of  the  land 
more  than  twenty  years  before  suit  brought, 
and  such  company,  together  with  the  de- 
fendant corporation,  as  its  successor,  had 
occupied  the  same  ever  since  under  such  re- 
lease—held, that  the  plaintiff  could  not  re- 
cover. Carmody  v.  Chicago  &*  A.  A'.  Co., 
1 1 1  ///.  69. 


LIMITATIONS  OF   ACTIONS,  53-55. 


I    '  iJ 


The  fact  that  tlie  company  took  posses- 
sion of  tlie  land  as  a  trespasser  did  not  pre- 
vent the  running  of  tlie  statute  of  limita- 
tions, and  open  and  adverse  use  for  twenty 
years  was  sutficient  to  establish  a  right  of 
way.  aiterlvck  v.  Louisri<ilU\  X.  A.  lir*  C",  A'. 
Lo.,  il5  InU.  22,  14  \\'cst.Rfp.'6\i,  17  A'.  E. 
Kcp.  171.— Ai'PkoviNU  Sibley  v.  Ellis,  11 
Gray  (Mass.;  417. 

No  presumption  of  abandonment  or  of  a 
grant,  and  nu  statute  of  limitation,  runs 
against  a  company  by  the  adverse  occupa- 
tion of  any  of  the  land  condemned  or  oth- 
erwise obtained  by  them  for  the  purposes 
of  the  road.  Carolina  C.  A\  Co.  v.  A/cCas- 
kitl,  25  Am.  &>  Eitg.  R.  Cas.  S3,  94  ^\'.  Car. 
746. 

Under  the  Pa.  law  a  recovery  of  land  in 
ejectment  is  only  barred  by  twenty-one 
years'  adverse  holding  by  a  railroad,  where 
it  has  been  appropriated  without  a  grant, 
release,  or  legal  condemnation.  McCliiiton 
V.  Pittsburg,  Ft.  W.  &*  C.  R.  Co.,  66  Pa. 
St.  404. — Followed  in  McFaddenw.  John- 
son, 72  Pa.  St.  335 ;  Colgan  v.  Allegheny 
Valley  R.  Co.,  3  Pittsb.  (Pa.)  394.  Re- 
viewed IN  Philadelphia  &  R.  R.  Co.  v. 
Lawrence,  10  Phila.  (Pa.)  604. 

Where  land  is  subject  to  the  lien  of  two 
judgments,  but  is  sold  first  under  the  junior 
judgment,  seven  years'  continuous  adverse 
possession  by  the  purchaser  perfects  the 
title,  and  bars  a  claim  by  a  purchaser  under 
the  senior  judgment,  though  seven  years 
may  not  have  elapsed  since  the  latter  pur- 
chase. Tennessee  Sr^  P.  R.  Co.  v.  Mabry,  85 
Tettn.  47,  I  5.   IV.  Rep.  511. 

In  such  case,  seven  years'  continuous  ad- 
verse possession,  by  the  first  purchaser,  and 
his  vendee,  under  an  assurance  of  title,  pur- 
porting to  convey  an  estate  in  fee,  invests 
the  vendee  with  an  indefeasible  title  in  fee 
simple,  and  bars  the  claim  of  the  second 
purchaser;  although  seven  years  may  not 
have  elapsed  from  the  date  of  the  second 
purchase.  Tennessee  &>  P.  R.  Co.  w  Mabry, 
85  Tenn.  47,  i  S.   W.  Rep.  511. 

Where  a  railway  company  erects  a  rail 
fence  on  the  boundary  of  its  line,  and  after- 
wards plants  a  hedge,  and  when  the  hedge 
grows  up,  removes  the  fence,  if  the  owner 
of  the  adjoining  field  occupies  the  strip  be- 
tween the  hedge  and  the  line  of  the  fencfe, 
and  cultivates  it  without  interference  from 
the  company,  he  acquires  title  in  the  stat- 
utory period  by  adverse  possession.  Nor- 
ton v.  London  &•  N.  W.  R.  Co.,  L.  R.  13  Ch. 


D.  268,41  L.  r. 429,  28  lV.R.i7i;  affirming 
L.  R.  9  C/i.  D.  623,  47  L.  J.  Ch.  859,  39  L. 
T.  25,  27  W.R.  352.— Considered  in  Bon- 
ner V.  Great  Western  R.  Co.,  L.  R.  24  Ch. 
D.  1.48  L.  T.  619,  32  W.  R.  190,  47  J.  p. 
580. 

53.  Fureulusuru  Miiits.— In  the  case 
of  a  claim  secured  by  a  mortgage,  although 
the  remedy  by  an  action  at  law  for  the  claim 
may  be  barred  by  the  statute,  the  remedy 
under  the  mortgage  will  not  be  affected  by 
any  lapse  of  time  short  of  the  period  suffi- 
cient to  raise  the  [iresumption  of  payment. 
Smith  V.  IVashington  City,  V.  At.  &^  G.  S. 
R.  Co.,  I  Am.  (S^  Eng.  R.  Cas.  493,  33  Gratt. 
{P'a.)6i7. — Quoting  Elkins  7/..  Edwards,  8 
Ga.  325. 

54.  Iiyuuctioii  to  restruiii  uuaii- 
tliurized  use  ol  laud. — The  right  of  a 
landowner  to  maintain  an  injunction  pro- 
ceeding to  restrain  a  railroad  company  which 
has  entered  upon  his  land  without  making 
payment  therefor  is  "founded upon  the  title 
to  real  property,"  within  the  meaning  of 
Wis.  Rev.  St.  ch.  138,  §  3,  and  is  limited 
to  twenty  years.  Gi/man  v.  Sheboygan  &> 
F.  lilt  L.R.  Co.,^o  JfVj.  653,  i^Am.Ry.  Rep. 
468.— Quoted  in  International  &  G.  N.  K. 
Co.  V.  Benitos,  59  Tex.  326. 

To  a  bill  in  equity  brought  under  Me. 
Rev.  St.  ch.  51,  §  10,  "praying  for  an  in- 
junction against  the  use  and  occupation  of " 
the  complainant's  land  taken  for  the  loca- 
tion of  a  railroad,  the  objection  that  the 
damages  were  fixed  by  the  county  commis- 
sioners more  than  six  years  before  the  filing 
of  the  bill  may  be  taken  as  a  defense  by 
demurrer.  Mooers  v.  Kennebec  &•  P.  R.  Co., 
58  Me.  279. 

55.  Trespass  ou  lands.— An  action 
in  Florida  for  trespass  upon  real  property 
must  be  commenced  within  three  years ; 
otherwise  it  is  barred  by  the  statute.  Sa- 
vannah, F.  &*  W.  R.  Co.  V.  Davis,  43  Am. 
&^  Eng.  R.  Cas.  542,  25  F/a.  917,  7  So.  Rep. 
29. 

The  limitation  of  two  years  prescribed  by 
Kan,  Civ.  Code  §  18,  subd.  3,  for  an  action 
for  trespass  on  real  property  limits  the 
damages  recoverable  to  those  caused  within 
two  years  next  preceding  the  action,  though 
the  trespass  was  continued  for  more  thiin 
two  years,  and  the  action  was  coupled  with 
an  action  of  ejectment,  the  limitation  of 
which  is  three  years.  Missouri  Pa c.  R.  Co. 
v.  Houseman,  41  Kan.  300,  304, 21  Pac.  Rep. 
284. 


*Fi< 
see  44 

:-,<i/'s, 


LIMITATIONS   OF   ACTIONS,  50, 57. 


Under  the  charter  of  the  Western  North 
Carolina  K.  Co.,  the  company  has  no  right 
to  enter  upon  any  yard,  garden,  or  dwelling 
huuse  without  the  consent  of  the  owner; 
and  where  such  entry  is  made,  the  provision 
that  landowners  shall  apply  for  assessment 
of  damages  within  two  years  after  the  road 
has  been  located  does  niot  apply,  /''ore  v. 
ll'esUrn  N.  C.  K.  Co.,  loi  iW.  Car.  526,  8  S. 

E.  Rep.  335- 
50.  Actions  for   flowiiiy;  lauds.*— 

The  statute  does  not  bar  a  claim  against 
a  company  for  diverting  surface  water  from 
its  natural  course  so  as  to  injure  lands  of 
another,  within  five  years  from  the  time  the 
obstruction  is  erected,  as  the  injury  is  con- 
tinuing. Chicago  &*  A.  R.  Co.  v.  Riley,  25  ///. 
App.  569.— Following  Chicago  &  A.  R. 
Co.  z/.  Connors,  25  111.  App.  '^t\.— Drake  v. 
ChiCii^'o,  R.  I.  &-  P.  R.  Co.,  17  Am.  &-  Eh^. 
R.  Cas.  45,63  loiva  302,  50  Am.  Rep.  746,  19 
i\.  IV.  Rep.  215.— FuLLOWiNO  McConnel  v. 
Kibbe,  29  111.  483 ;  Bowyer  7/.  Cook,  4  M.,  G. 
&  S.  236.— Distinguished  in  Haisch  v. 
Keokuk  &  D.  M.  R.  Co.,  71  Iowa  606,  33  N. 
W.  Kep.  126. — Sullens  v.  Chicago,  R.  I.  (S>» 
r.  R.  Co.,  74  Iowa  659,  7  Am.  St.  Rep.  501, 
38  a:  IV.  Rep.  545.  PVe/is  v.  New  Haven  &* 
N.  Co.,  44  Am.  &•  Ettg.  R.  Cas.  491,  151 
Mass.  46,  23  A^.  E.  Rep.  724.— Rkviewing 
Fowlc  V.  New  Haven  &  N.  Co.,  107  Mass. 
352,  112  Mass.  334. — Spilman  v.  Roanoke 
Xav.  Co.,  74  A'.  Car.  675, 

Where  the  cause  of  action  as  stated  in  a 
petition  is  for  an  improper  construction  of 
an  embankment,  and  the  answer  and  reply 
siiow  that  the  real  issue  upon  which  the 
case  was  to  be  tried  was  the  failure  to 
maintain  a  ditch  under  the  embankment  to 
carry  oflf  surface  water,  the  cause  of  action 
is  not  a  single  one,  and  the  plaintiff  can  re- 
cover for  the  damages  sustained  during  the 
live  years  preceding  the  action.  Willitts  v. 
Chuago,  B.  &*  K.  C.  R.  Co.,  88  Iowa  281,  55 
iV.  W.  Rep.  313. 

An  action  for  the  flowing  of  canals,  caused 
by  the  construction  of  a  railroad,  must  be 
brou^'bt  witiin  six  months  from  the  accrual 
of  the  right.  Carron  v.  Great  Western  R, 
Co.,  14  [/.  C.  Q.  B.  192. 

Defendants  in  the  construction  of  their 
railway  crossed  a  stream  of  water  which 
emptied  on  plaintifl's  land,  and  to  allow  a 

*  Flooding  lands  ;  limitation  of  actions  for, 
see  44  Am.  &  Eng.  R.  Cas.  493,  abstr.;  48  Id. 

:2,,i6str. 


passage  they  built  a  culvert,  and  caused  the 
water  to  flow  as  before.  The  culvert  being 
filled,  defendants  caused  a  drain  to  be  dug, 
which,  with  continuations  made  by  tlie  ad- 
joining owners  of  property,  caused  the  water 
to  be  diverted  from  its  natural  course  and  to 
overflow  a  portion  of  plaintifl's  land.  Plain- 
titi  waited  for  six  years  and  then  brought 
an  action,  claiming  damages  for  a  crop  in- 
jured at  tlie  time  of  the  diversion,  and  as  a 
continuing  injury  to  the  land  since.  He/ti, 
that  the  damage  was  not  continuing,  and 
that  the  action  should  have  been  brought 
within  six  months.  J'atterson  v.  (Jreat 
Western  K.  Co.,  8  U.  C.  C.  P.  89. 

In  1872  defendant's  predecessor  con- 
structed its  roadbed,  diverting  the  channel 
of  a  watercourse  and  turning  it  across  and 
under  its  embankment  through  a  bridge. 
Thereafter  the  channel  began  to  fill  up,  and 
from  time  to  time  to  overflow  plaintiff's  land, 
until  in  June,  1883,  it  became  a  flxed  and 
permanent  embankment  and  necessarily  in- 
jurious. In  December,  1887,  suit  was 
brought  for  the  destruction  of  the  crops 
of  1883,  1884,  1885,  and  in  September,  1889, 
the  petition  was  amended  by  averring  per- 
manent injury  to  the  land.  Held:  (1)  the 
action  for  the  destruction  .of  the  crops  was 
not  barred ;  (2)  the  action  for  permanent 
injury  alleged  by  the  amendment  in  Sep- 
tember, 1 889,  was  barred.  Bunten  v.  Chicago, 
R.  I.  &*  P.  R.  Co.,  50  Mo.  App.  414. 

57.  Actions  for  spread  of  ftres.* 
— The  Connecticut  statute  of  1881,  p.  48, 
which  makes  companies  responsible  for 
fires  communicated  by  their  locomotives,  is 
not  penal,  and  an  action  brought  under  it 
is  not  barred  by  the  statute  of  limitations 
applicable  to  penal  actions.  Case,  and  not 
trespass,  is  the  proper  remedy  at  common 
law  for  damages  caused  by  sparks  escaping 
from  a  locomotive,  and  is  not  barred  within 
six  years.  Newton  v.  New  York  &•  N.  E.  R, 
Co.,  32  Am.  &■•  Ettg.  R.  Cis.  347,  56  Conn.  21, 
5  N.  Eng.  Rep.  614,  12  Atl.  Rep.  644. 

In  Texas  an  action  for  damages  for  fire 
set  out  by  a  locomotive  is  barred  in  two 
years;  and  so,  where  suit  is  brought,  items 
of  damage  added  by  an  amended  complaint 
more  than  two  years  after  the  fire  are 
barred.  Gulf,  C.  &*  S.  F.  R.  Co.  v.  Thomp' 
son,  4  Tex.  App.  {Civ.  Cas.)  219,  16  .S".  W. 
Rep.  174. 

In  an  action  against  a  company  for  so 

*See  also  Fires,  139. 


I 
I 


324 


LIMITATIONS   OF  ACTIONS,  58. 


negligently  managing  a  fire  which  had  be- 
gun upon  iheir  track  that  it  extended  to 
the  plaintiff's  land  adjoining — held,  that  the 
'•  Railway  Act,"  §  83,  limiting  suits  to  six 
montlis  after  the  damage  sustained,  did  not 
apply,  the  injury  charged  being  at  common 
law,  by  one  proprietor  of  land  against 
another,  independent  of  any  user  of  tiie 
railway.     Prcndergast  v.  Gruid   Trunk  R. 

Co.,  25  U.  C.  (J.  B.  193. -Li  JISHED  IN 

McCallum  7/.  Grand  1  mnk  .^     31  U.  C. 

y.  H,  527. —  RiiViEWEU  1  .  ...  '  •  Ontario 
&  y.  K.  Co.,  10  Out.  70. 

An  action  for  damages  ciused  by  fire  from 
a  locomotive  engine  withiu  uieronsoli,la''^d 
St.  C.  ch.  66,  §  83,  must  be  institu.cd  wa.  u 
six  months.  McCalluin  v.  Grand  Trunk  Ji. 
Co.,  31  I/.  C.  Q.  B.  527. 

5K.  ActiuiiM   for    cuutiuuiiig   uui- 
stiiices.  —  Trespasses  upon   real    property 
effected  by   an   unlawful  structure  or  nui- 
sance are  continuous  in  their  nature,  and  give 
separate  successive  causes  of  action   from 
time  to  time  as  the  injuries  are  perpetrated, 
barred  only  by  the  running  of  the  statute 
against  the  successive  trespasses.   Galway\. 
Metropolitan  El.  R.  Co.,  128  A^.  Y.  1 32,-28  A^. 
E.  Rep.  479,  40  A^.    Y.  S.  R.  145  ;  affirming 
58  Hun  610,  35  A^.   Y.  S.  R.  628.  13  A'.   K 
Supp.  47.  McGowan  v.  Missouri  Pac.  R.  Co., 
23  Mo.  App.  203.    Wright  v.  Syracuse,  B.  &• 
i\.    Y.   R.   Co.,  49  Hun  445.  3  N.  Y.  Supp. 
480;  affirmed  in  124  A^.  Y.  668,  mem.,  37  A^. 
Y.  S.  R.  964. 

No  lapse  of  time  or  inaction  merely  on 
the  part  of  an  owner  after  the  erection  and 
during  the  maintenance  of  the  unlawful 
structure,  unless  it  has  continued  for  such 
a  period  of  time  as  will  effect  a  change  of 
title  in  the  property  or  authorize  the  pre- 
sumption of  a  grant,  is  sufficient  to  defeat 
the  right  of  the  owner  to  his  action  at  law 
or  in  equity.  Galway  v.  Metropolitan  El, 
R.  Co.,  128  A^.  Y.  132.  28  A^.  E.  Rep.  479,  40 
A'.  Y.  S.  R.  145  ;  affirming  58  Hun  610,  35 
N.  Y.  S.  R.  628.  13  N.  Y.  Supp.  47. 

So  also  the  right  of  an  abutting  owner  to 
maintain  an  action  at  law  or  in  equity  be- 
cause of  an  invasion  of  his  rights  in  a  public 
street  by  the  erection  thereon  of  a  structure 
which  impairs  his  easement  therein  con- 
tinues so  long  as  he  continues  to  be  the 
owner  of  the  property,  without  regard  to 
the  lapse  of  time,  provided  the  remedy  is 
claimed  within  the  statutory  period  of  limita- 
tion applicable  to  the  legal  right,  and  before 
adverse    possession  has    barred    his   title. 


Galway  v.  Metropolitan  El.  R.  Co. ,  1 28  A'. 
Y.  132.  28  A'.  E.  Rep.  479.  40  A'.  Y.  S.  R. 
145  ;  affirming  58  Hun  610,  35  N.  Y.  S.  R. 
628,  13  N.  Y.  Supp.  47.— Ai'PLiED  IN  Syra- 
cuse Solar  Salt  Co.  v.  Rome,  W,  &  O.  R. 
Co.,  51  N.  Y.  S.  R.  520. 

It  is  immaterial,  either  in  equity  or  at  law, 
whether  the  injuries  done  were  originally 
intended  by  the  wrong-doer  to  be  perpetual 
and  permanent,  or  were  of  a  temporary  na- 
ture only  and  occasional  in  their  operation. 
Galway  \.  Metropolitan  El.  R.  Co.,\2%N. 
Y.  132,  28  A^.  E.  Rep.  479,  40  A^  1'.  .V.  R. 
145  ;  affirming  58  Hun  610,  35  A^,  Y.  S.  R. 
62S,  i3iV.  Y.Supp.  47. 

Though  a  railroad  embankment  has  been 
vieated  by  the  parties  as  a  permanent  ob- 
struction, the  five-years'  statute  of  limita- 
tions does  not  bar  an  action,  where  it  appears 
that  it  has  been  increased  in  height  during 
the  time.  O/iio  6-  M.  R.  Co.  v.  Nuetsel,  43 
///.  App.  108.— Following  Ohio  &  M.  R. 
Co.  V.  Wachter,  123  111.  440;  Ohio  &  M.  R. 
Co.  V.  Elliott,  34  111.  App.  589. 

An  action  to  abate  a  nuisance,  such  as 
erecting  cattle  pens  near  plaintiff's  hotel,  or 
to  recover  damages  therefor,  must  have  ac- 
crued within  six  years,  under  the  Indiana 
statute.  Ohio  &*  M,  R.  Co.  v.  Simon,  40  Jnd. 
278. 

Where  a  company  is  authorized  to  con- 
struct its  road  across  a  public  highway 
on  condition  that  it  will  restore  the  same, 
the  obligation  to  restore  the  highway  is  a 
condition  inseparable  from  the  right  to  con- 
struct the  road  across  the  highway,  and  the 
statute  of  limitations  is  not  a  defense  to  an 
action  brought  to  secure  the  performance  of 
such  duty.  Little  Miami  R.  Co.  v.  Greene 
County  Com'rs,  31  Ohio  St.  338,  16  Am. 
Ry.  Rep.  278.— Quoting  Hamden  v.  New 
Haven  &  N.  R.  Co.,  27  Conn.  158.  Revikw- 
ING  People  ex  rel.  v.  Chicago  &  A.  R.  Co., 
67  111.  118. 

The  obstruction  was  in  existence  for 
eighteen  years  before  the  presentment  was 
made.  Held,  not  barred  by  the  statute  of 
limitations,  as  the  general  rule  is  that  the 
very  continuance  of  a  nuisance  is  a  new 
offense.  Nashville  <S-  D.  R.  Co.  v.  Stale,  i 
Baxt.  (Tenn.)  55. 

Plaintiff,  by  written  agreement,  allowed 
the  defendants  to  carry  their  road  through 
his  land,  and  in  constructing  it  they  nude 
an  embankment  which  rendered  his  access 
to  the  highway  inconvenient,  and  prevented 
the  water  near  and  around  his  house  from 


■"';     -'."UM' 


LIMITATIONS   OF   ACTIONS,  5«,  GO. 


325 


running  off  as  before.  //M,  that  this  was 
a  continuing  injury,  for  which  an  action,  if 
maintainable,  was  not  limited  to  six  months. 
Cameron  v.  Ontario,  S.  &»  H.  R.  U.  Co.,  14 
r.  C.  (J.  /A  612. 

r>t).  other  suits  rclaitiiig  tu  realty. 
— Where  a  company  conveys  its  lands  to  a 
trustee,  witli  a  provision  that  any  of  its 
bondholders  may,  within  five  years  from  the 
(late  of  the  bonds,  surrender  them  and  re- 
ceive a  deed  for  a  part  of  the  land  nt  a  cer- 
tain proportion  of  its  value,  and  take  the 
same  discharged  from  the  deed  of  trust,  the 
five-years'  limitation  does  not  apply,  and  a 
puicliaser  six  years  thereafter  is  entitled  to 
land  free  from  the  deed  of  trust.  Frash  v. 
Gloidy,  68  Ind.  364. 

Where  the  petition  alleges  breaches  of 
trust,  whereby  the  trust  property,  a  railroad, 
was  sold,  and  one  of  the  directors  of  the 
corjjoiation  owning  the  road  became  the 
purchaser,  and  the  prayer  is  that  such  pur- 
chase be  held  for  the  benefit  of  the  corpora- 
tion, and  the  property  so  purchased  be  de- 
clared to  be  held  in  trust  for  the  corporation, 
etc.,  such  a  suit  is  not  for  the  recovery  of  real 
estate,  or  for  relief  on  the  ground  of  fraud, 
but  is  a  suit  to  declare  and  enforce  an  im- 
plied or  constructive  trust.  Such  an  action 
will  be  barred  in  five  years.  In  this  case  the 
purchaser  died  within  live  years  from  the 
time  of  his  purchase.  This  suit,  brought 
within  one  year  after  letters  of  administra- 
tion were  taken  out  on  his  estate,  is  not 
barred  by  the  statute.  Covington  <S<«  L.  R. 
Co.  V.  lUnvler,  9  Bush  {Ky.)  468. 

00.  Actions  for  persoiiul  iiijiiries. 
—(11  Aiabania. — A  claim  for  damages  on 
account  of  personal  injuries'  is  not  within 
the  statute  requiring  claims  for  damages  to 
be  presented  or  sued  on  within  sixty  days 
after  they  accrue  (Code,  §  1701),  but  is  gov- 
erned by  the  general  statute  of  limitations 
of  one  year  (section  3231).  Mobile  &*  M. 
A'.  Cii.  v.  Cnns/iaw,  8  Aw.  &^  Kmr,  A".  Cas. 

340,    65    .//</.     566.  —  FOM.OWINf;     DOUBT- 

iNiJi.Y  Nicholson  v.  Mobile  &  M.  R.  Co., 
49  Ala.  205.— Followed  in  Alabama  G.  S. 
K.  Co.  V.  Hawk,  18  Am.  &  Eng.  R.  Cas. 
J94.  72  Ala.  112,  47  Am.  Rep.  403. 

(2)  /('Wrt.— Where  plaintiff  began  an  ac- 
tion for  personal  injury  in  the  state  court, 
which  defendant  had  removed  to  the  federal 
court,  and  plaintiff  then  had  it  dismissed 
without  prejudice,  on  the  ground  that  he 
believed  that  he  could  not  obtain  a  fair  trial 
in  the  federal  court— //M/,  that  a  new  action 


for  the  same  cause,  begun  more  than  two 
years  after  the  cause  of  action  accrued,  but 
less  than  six  months  after  the  first  action 
was  dismissed,  was  barred  by  section  2529 
of  the  Code,  and  that  section  2537  did  not 
save  it.  Arc/ur  v.  Chicago,  H.  6-  Q.  R.  Co., 
65  Io7t;a  61 1,  22  A'.  ;{'.  Rt'p.  894. 

(3)  Mississipf)i. — Code  1880,  §  2673,  re- 
quiring actions  for  "  assault,  battery,  maim- 
ing, false  imprisonment,  malicious  ar- 
rest," etc.,  to  be  brought  within  one  year, 
does  not  apply  to  actions  against  railroad 
companies  for  personal  injuries.  Jhli  v. 
Kansas  City,  M.  &*  B.  R.  Co.,  68  Miss.  19,  8 
So.  Rep.  508. 

(4)  New  York. — The  liability  of  a  carrier 
of  passengers  to  a  passenger  injured  in  con- 
sequence of  some  defect  in  the  vehicle  is 
based  solely  upon  negligence,  and  the  three- 
years'  limitation  fixed  by  Code  of  Civ.  Pro. 
(subd.  5,  §  383)  for  the  bringing  of  "  an  ac- 
tion to  recover  damages  for  a  personal  in- 
jury   resulting    from    negligence,"  applies. 

Webber  v.  Herkimer  &^  M.  St.  R.  Co.,  y.  Am. 
&•  Eng.  R.  Cas.  580,  109  A.  K.  31 1,  16  A'.  E. 
Rep.  358,  15  A'.  )'.  5.  R.  262  ;  affirming  35 
Nun  44.— Api'I.ikd  in  Dlabola  z/.  Manhat- 
tan R.  Co.,  8  N.  Y.  Supp.  334,  29  N.  Y.  S. 
R.  149. 

It  is  immaterial  whether  the  action  is  in 
form  ex  contractu  for  a  breach  of  the  car- 
rier's contract  or  ex  delicto.  Where  the 
source  of  the  injury  complained  of  is  neg- 
ligence, the  action  is  barred  if  not  com- 
menced in  three  years.  Webber  v.  Herki- 
mer &-  M.  St.  R.  Co.,  34  Am.  &-  Eng.  R. 
Cas.  580,  109  N.  v.  311,  16  N.  E.  Rep.  358, 
1 5  iV.  Y.  S.  R.  262 ;  affirming  35  Hun  44. — 
Following  Carroll  v.  Staten  Island  R.  Co., 
58  N.  Y.  126.— Followed  in  Maxson  v. 
Delaware,  L.  &  W.  R.  Co.,  ii2  N.  Y.  559,  20 
N.  E.  Rep.  544,  21  N.  Y.  S.  R.  767. 

An  action  by  a  husband  to  recover  dam- 
ages for  the  loss  of  his  wife's  services  by 
reason  of  the  latter  having  received  bodily 
injuries  through  the  defendant's  negligence 
is  an  action  for  personal  injuries  within  the 
meaning  of  the  N.  Y.  Code  Civ.  Pro.  §  383, 
subd.  5,  and  is  subject  to  the  limitation  of 
three  years  prescribed  thereby,  and  not  to 
the  limitation  of  six  years  applicable  to  ac- 
tions for  damages  for  injuries  to  property. 
Maxson  v.  Delaware,  L.  &^  W.  R.  Co.,  37 
Am.  &*  Eng.  R.  Cas.  162,  112  A^.  Y.  559,  20 
A^  E.  Rep.  544,  21  A'.  Y.  S.  R.767 ;  reversing 
48  Hun  172,  15  A^.  Y.  S.  R.  650,  14  Cn/.  P  0. 
248.— Distinguishing  Cregin  v.  Brooklyn 


320 


LIMITATIONS   OF  ACTIONS,  61. 


Crosstown  R.  Co.,  83  N.  Y.  595.  Fol- 
lowing Webber  z/.  Herkimer  &  M.  St.  R. 
Co.,  109  N.  Y.311.  Nor  FOLLOWING  Groth 
V.  Washburn,  34  Hun  509. 

PlaintitT  was  injured  by  reason  of  defend- 
ant's negligence  in  April,  1877,  nnd  com- 
menced this  action  to  recover  damages  in 
January,  1880.  Held,  that  the  statute  of 
limitations  was  not  a  bar,  as  the  case  was 
governed  by  the  three-year..'  limitation  pre- 
scribed by  Code  of  Civ.  Pro.  ^  383,  subd.  5. 
Watson  V.  Forty-second  St.  &>  G.  S.  F.  R. 
Co.,  15  Ant.  &•  Fn^\  A'.  Cas.  486,  93  A'.  V. 
522  ;  affirming  lb  J.  (Sk*  5.  44. 

(5)  Tennessee. — Where  an  action  for  per- 
sonal injuries  was  commenced  within  a  year 
after  the  injury  was  received,  and  the  plain- 
tiff took  a  nonsuit  and  subsequently  substi- 
tuted a  new  suit  within  a  year  from  the  dis- 
missal of  the  first,  but  more  than  one  year 
after  injuries  received — held,  under  section 
2755  of  the  Code,  that  the  statute  of  limita- 
tions was  no  bar  to  the  action.  Memphis 
6-  C.  R.  Co.  v.  Pillow,  9  Heisk.  ( Tenn.)  248. 

(6)  Texas. — The  limitation  of  one  year 
placed  by  statute  upon  actions  for  injuries 
to  the  person  of  another,  as  assaults,  bat- 
tery, wounding,  or  imprisonment,  applies  to 
actions  for  injuries  from  accidents  on  rail- 
roads also,  the  classes  above  named  being 
examples  merely,  and  not  intended  to  re- 
strict the  operation  of  the  statute.  Tohin 
V.  Houston  &'  T.  C.  R.  Co.,  8  Ant.  &•  Eng. 
R.  Cas.  477,  56  Tex.  641.  Texas  &•  P.  R. 
Co.  V.  Goodson,  2  Tex.  App.  {Civ.  Cas.)  31. 

Where  a  petition  contained  no  express 
allegation  as  to  daniages  caused  to  clothing 
of  plaintiff  (who  was  put  off  one  of  defend- 
ant company's  trains),  but  the  claim  for 
damages  was  based  upon  mental  and  bodily 
injuries  received  by  the  plaintiff,  and  the 
action  appears  to  have  been  brought  eighteen 
months  after  the  injury,  exceptions  that  the 
cause  of  action  is  bairerl  by  limitation  of 
one  year  should  have  been  sustained.  Gen- 
eral allegations  as  to  injury  to  the  clothing 
would  not  save  the  action  from  the  effect  of 
the  statute  of  limitations  of  one  year.  Gal- 
veston, H,  &>  S.  A.  R.  Co.  v.  Roemer,  i  Tex. 
Civ.  A  ftp.  191,205".   W:  Rep.  843. 

(7)  Utah. — An  action  by  a  passenger 
against  a  carrier  to  recover  damages  for  in- 
juries received  through  the  negligence  of 
such  carrier,  not  having  been  specially  pro- 
vided for  in  the  limitation  act,  is  embraced 
under  the  general  provision  of  section 
20,  and  must  be  commenced    within  four 


years  after  the  cause  of  action  shall  have 
accrued.  Thomas  v.  Union  Pac.  R.  Co.,  1 
Utah  235. 

(8)  Ontario. — The  plaintiff  sued  the  de- 
fendants foran  injurysustained  by  him  while 
engaged  in  his  lawful  occupation  on  the 
street,  by  the  defendants'  car  being  so  care- 
lessly and  rapidly  driven  that  lie  was  obliged 
to  jump  into  a  drain  to  save  himself,  and  was 
hurt.  Held,  that  the  eighty-third  section  of 
C.  S.  C.  c.  66  applied  to  a  suit  of  this  na- 
ture, and  that  the  action  should  have  been 
brought  within  six  months.  A'ellj'  v.  Otta- 
wa St.  R.  Co.,  3  Ont.  App.  616.— Follow- 
ing Auger  V.  Ontario,  S.  cS:  H.  R.  Co.,  9  U, 
C.  C.  P.  164;  Browne  v.  BrockvilleA  O.  R. 
Co.,  20  U.  C.  Q.  B.  202. 

01.  Actions  for  killiii);  or  iiijiir- 
iii{jr  live  stock.— An  action  for  damages 
against  a  railroad  corporation  for  an  injury 
to  stock  or  cattle  caused  by  negligence,  there 
being  no  contract  between  the  parties,  must 
be  commenced  within  one  year  from  the 
time  of  the  injury  (Code,  g  3231,  subd.  6), 
the  claim  having  been  presented  within 
sixty  days.  Hitss  v.  Central  R.  <S^  B.  Co., 
66  Ala.  472. 

A  claim  for  damages  for  stock  killed  or 
injured  is  "  barred,  unless  complaint  is  made 
within  six  months  after  such  killing  or  in- 
jury "  ;  but  a  presentment  of  the  claim  in 
writing,  within  the  six  months,  to  the  presi- 
dent, treasurer,  superintendent, depot  agent, 
or  agent  specially  appointed  to  look  after 
such  claims  is  sufficient  to  avoid  the  bar, 
although  suit  is  not  commenced  until  after 
the  lapse  of  six  months.  Fast  Tenn.,  /'. 
<&*  G.  R.  Co,  V.  liayliss,  19  Ant.  6^  Fng.  R. 
Cas:  480,  74  Ala.  150.  Alabama  G.  S.  R. 
Co.  V.  /iillian,6gAla.  277.— Quoting  South 
&  N.  Ala.  R.  Co.  V.  Morris,  65  Ala.  193. 

The  Illinois  statute  making  railroad  com- 
panies liable  for  killing  live  stock  by  reason 
of  a  failure  properly  to  fence  is  not  penal ; 
and  an  action  thereunder  is  not  barred  in 
two  years.  Ohio  &^  M.  R.  Co.  v.  Frwin,  45 
///.  App.  558. 

The  recovery,  without  proof  of  negligence, 
allowed  by  the  Ind.  statute  for  injuries  done 
to  animals  by  railroads,  when  the  roads 
are  not  fenced,  is  not  a  penalty  given  by 
statute  within  the  meaning  of  C'^Ie,  §  211, 
subd.  I.  The  action  is  for  an  injury  done 
to  property,  and  the  limitation  of  the  action 
IS  regulated  by  the  third  clause  of  section 
210.  Jeffersonville  R.  Co.  v.  Gabert,  25  Imi. 
43'- 


LIMITATIONS   OF   ACTIONS,  «2-«5. 


337 


An  action  brouglit  in  iSS6,  for  damages 
against  a  railway  company  on  account  of  its 
removal  of  a  fence,  in  tlic  year  1880,  from 
premises  adjoining  its  right  of  way,  is 
barred.  Hunter  v.  liitrlington,  C.  R.  &*  N. 
K.  Co.,  84  Iowa  605,  51  iV.   //'.  Rep.  64. 

Actions  for  injuries  must  be  brought 
witiiin  six  months  after  such  injury.  O'lutn- 
non  V.  Louisville,  C,  &*  L.  R.  Co.,  8  A' us  A 
(Ay.)  348.  Mortimer  v.  Louimille  >S-  ^V'.  R. 
Co.,  10  Hush  (A>.)  485.  Hut  see  Kentucky 
C.  R.  Co.  V.  Kinney,  (A>.)  35  Am.  .S-  Eng 
R.  Cits.  199,  8  S.  \V.  Rep.  201. 

Under  section  5  of  the  damage  act  (Wagn. 
Mo.  St.  520),  the  new  suit  brought  against  a 
railroad,  after  nonsuit,  must  be  commenced 
within  one  year  after  the  date  of  the  injury. 
Section  19  of  the  chapter  concerning  limita- 
tions (Wagn.  St.  919),  authorizing  the  com- 
ineiicenient  of  a  new  action  within  a  year 
from  date  of  nonsuit,  has  no  application  to 
causes  the  time  for  bringing  which  is  not 
"  prescribed  "  by  that  chapter,  but  is  other- 
wise limited.  {Id.  %  26.]  Gerren  v.Hanni' 
bill  ^-St.  /.  R.  Co.,  60  J/o.  405, 9  Am.Ry.  Rep. 
247.— FoLi.owKD  IN  Revelle  z/.  St.  Louis,  1. 
M.&S.  R.  Co.,  74  Mo.  438- 

The  statute.  Mo.  R.  S.  1S79,  g  809,  allowing 
double  damages  to  the  owner  for  stock 
killed  on  a  railroad  is  penal  ;  and  three 
yiars  is  the  time  limited  for  the  commence- 
ment of  actions  thereunder.  This  limita- 
tion is  absolute,  and  is  not  extended  by  im- 
proper acts  of  the  defendant  preventing  the 
commencement  of  the  action.  Reiielle  v. 
St.  Louis,  I.  M.  &'  S.  R.  Co.,-j\iMo.  438.— 
Following  Gerren  v.  Hannibal  &  St.  J.  R. 
Co.,  60  M<i.  405. 

An  action  to  recover  dam'-»;;es  for  killing 
or  injuring  a  domestic  animal  which  had 
strayed  upon  the  track,  and  was  killed  or 
injured  without  fault  or  negligence  of  the 
coinjjany  in  operating  its  train,  but  solely 
by  the  neglect  to  fence  the  ro.id  as  required 
by  law,  is  founded  upon  "  a  liability  created 
by  .statute,  other  than  a  forfeiture  or  pen- 
alty," and  is  barred  in  Ohio  in  six  years. 
Seymour  v.  Pittslnnj^,  C.  €"  St.  L.  R.  Co., 
44  O/iio  St.  12.  4  N.  E.  Rep.  236. 

02.  Action  for  injuries  tlirongrh 
nogU'ct  of  co-servant.— An  action  to 
recover  for  injuries  sustained  by  the  negli- 
gence of  co-employes  is,  though  founded  on 
a  contract  between  the  plaintiff  and  the 
company,  deemed  an  action  for  injuries  to 
the  person  within  the  meaning  of  section 
2740  nf  the  Iowa  Revision,  anrl    barred  in 


two  years  from  the  time  the  cause  of  action 
accrued.  Xortl  v.  Jiurlittj^ton  (S-  Af.  R.  A'. 
Co.,  37  /oica  49S,— pDhLowiNG  Sherman  v. 
Western  Stage  Co.,  22    Iowa  556,  24  Iowa 

5'5- 
The  words,  "an  action  for  injury  to  the 

rights  of  another,  not  arising  on  contract," 
in  subdivision  3  of  section  18  of  the  Kan. 
Code  of  Civ.  Pro.,  limit  and  qualify  the  jjro- 
vision  in  subdivision  2  of  said  section  18 
giving  three  years  in  which  to  commence  an 
action  "  upon  a  liability  created  by  statute," 
and  therefore  the  two-years'  limitation  for 
commencing  an  action,  found  in  said  subdi- 
vision 3  of  said  section  18,  applies  to  all 
actions  brought  by  an  employe  to  recover 
damages  from  a  railroad  company  on  ac- 
count of  the  negligence  of  a  co-employe, 
whether  the  personal  injury  resulted  from 
the  negligence  of  the  master,  under  the  rule 
of  the  common  law,  or  from  the  negligence 
of  the  co-employe,  without  the  fault  of  the 
master.  Ate/tison,  T.  Sf*  S.  F.  R.  Co.  v. 
King,  15  Am.  &>  Eng.  R.  Ciis.  330,  31  Kan. 
708,"  3  J'ac.  Rep.  565. 

0:t.  Actions  tor  penultius.— Mo.  Rev. 
St.  g  3231,  providing  a  limit  of  three  years 
in  which  actions  may  be  brought  to  recover 
penalties  or  forfeitures,  where  the  action  is 
by  the  party  injured,  or  such  party  and  the 
state,  docs  not  apply  where  a  railroad  com- 
pany incurs  a  penalty  for  failing  to  erect  a 
passenger  station  at  a  crossing,  but  the 
penalty  prescribed  goes  to  the  school  fund. 
Missouri  V.  Kansas  City,  Ft.  S.  &»  G.  R.  Co., 
32  Fed.  Rep.  722. 

64.  Criminal  prosecutions.  —  La. 
Code,  arts.  3501,  3502,  fix  the  prescription 
resulting  from  offenses  and  ^«rt«' ofTenses  at 
one  year  from  the  time  when  the  damage 
is  sustained.  The  plaintiff  can  only  be 
entitled  to  the  damages  actually  proven. 
Mestier  v.  Ne^v  Orleans.  O.  S^  G.  W.  R.  Co., 
16  La.  Ann.  354. 

An  indictment  under  N.  H.  Gen.  St.  ch. 
264,  ^  14,  for  the  benefit  of  the  prosecutor, 
is  barred  in  one  vear.  State  v.  A'asliua  &* 
L.  R.  Co.,  58  A^.  N.  182. 

05.  How  tlie  time  is  to  be  com- 
puted.—The  usual  rule  for  the  computation 
of  time  under  a  statute,  that  the  first  day 
from  which  a  specified  number  of  days  is  to 
be  counted  is  to  be  excluded,  and  the  last 
day  which  completes  the  time  is  to  be  in- 
cluded, applies  where  a  statute  declares 
certain  penalties  against  railroad  companies. 
So  where  the  statute  pr(|videsthat  suit  imr.* 


328 


LIMITATIONS  OF  ACTIONS,  00-09. 


be  brought  "  within  ten  days,"  and  a  penalty 
is  incurred  on  the  20th  of  a  month,  suit 
may  be  brought  011  the  30th  of  that  montli. 
reople  V.  New    York  C.  A'.  Co.,  28  /iarl>.  (N. 

y. )  284. 

Under  the  statutory  rule  for  the  compu- 
tation of  time  (Ala.  Code,  ji  11),  an  action 
(or  personal  injuries  received  on  April  13th, 
commenced  on  April  i3ih  of  the  next  year, 
is  not  barred  by  the  limitation  of  one  year. 
Louisville  &*  N.  R.  Co.  v.  Watson,  90  Ala. 
68,  8  So.  Rep.  249. 

IV.  DISABILITIES  AND  EXCEPTIONS. 

00.  Covertiiw.  —  Where  a  company 
wrongfully  enters  upon  land,  the  general 
rule  is  that  the  owner  may  maintain  eject- 
ment; but  where  there  is  acquiescence  on 
the  part  of  the  owner  until  public  rights 
have  intervei'ed,  such  action  will  not  lie; 
and  it  is  no  excuse  for  the  acquiescence 
that  the  landowner  is  under  the  disability 
of  coverture.  Coverture  cannot  prevail 
against  a  rule  of  public  policy.  Indiana, 
li.  G^  IV.  R.  Co.v.  Allen,  113  /ml.  581,  12 
II \s/.  Rep.  887,    t,N.  E.  Rep.  446. 

A  provision  in  a  railroad  charter  provid- 
ing that  application  for  compensation  for 
land  taken  must  be  made  within  ten  years, 
excepted  femes  covert  and  infants,  who 
might  apply  within  two  years  after  their 
disability  might  be  removed.  Held,  that 
the  statute  applied  where  a  married  woman 
held  the  fee  of  land  in  trust  for  another 
married  woman,  and  the  statute  would 
constitute  a  bar  where  the  trustee's  hus- 
band died  after  the  ten  years  had  run,  and 
an  additional  two  years  after  such  death. 
Waring  v.  Cher  aw  &^  D.  R.  Co.,  16  So. 
Car.  416. 

The  above  provision  of  the  statute  is  not 
rendered  inoperative  by  requiring  the  appli- 
cation for  damatics  to  be  made  "as  herein- 
after directed,"  when  all  the  directions  given 
arc  in  a  previous  part  of  the  statute.  The 
manifest  intention  of  the  statute  must  pre- 
vail, and  it  will  be  read  as  "hereinbefore 
directed."  JVaring  v.  Cheraiv  &•  D.  R. 
Co..  16  So.  Car.  416. 

Tex.  Rev.  St.  art.  3202,  excepting  mar- 
ried women  from  the  operation  of  the 
statute  of  limitations,  applies  to  a  suit  to 
recover  damages  from  a  railroad  company 
for  injuries  to  her  while  a  passenger. 
Texas  &*  P.  R.  Co.  v.  Gwaltney,  2  Tex. 
A  pp.  (Civ.  Cas.)  60s. 


07.  Infancy.— A  provision  in  a  charter 
fixing  a  time  in  which  property  owners 
must  apply  for  damages  for  property  taken 
in  the  construction  of  the  road  does  not 
apply  to  infants;  and  as  to  them  the  time 
will  not  begin  to  run  until  they  have  at- 
tained their  majority.  Indiana  C.  R.  Co.  v, 
Oakes,  20  Ind.  9. 

How.  St.  ;;  8713,  which  bars  an  action 
on  the  case  unless  commenced  within  six 
years  after  the  cause  of  action  accrues, 
does  not  commence  to  run  as  against  an 
infant  until  he  attains  his  majority.  Keat- 
ing V.  Michigan  C.  R.  Co.,  94  Mich.  219,  53 
N.  W.  Rep.  1053. 

The  commencement  of  suit  by  an  infant, 
by  his  next  friend,  will  not  set  the  statute 
of  limitations  in  motion,  so  as  to  deprive 
him  of  its  full  benefit  after  he  becomes  of 
age.  Keating  v.  Michigan  C.  R.  Co.,  94 
Mich.  219,  53  A^.  W.  Rep.  1053. 

Where  a  statute  gives  minor  children  a 
right  to  sue  for  wrongfully  causing  the 
death  of  a  parent,  and  another  provision 
requires  actions  for  causing  death  to  be 
brought  within  a  year,  suit  may  be  begun 
within  one  year  after  a  child  attains  his 
majority.  Rntter  v.  Missouri  Pac.  li.  Co., 
21  Ant.  &*  Eng.  R.  Cas.  212,  81  Mo.  169. 

08.  Exception  in  cases  of  trusts.— 
It  is  a  general  principle  that  the  property 
of  a  corporation  is  a  trust  fund  for  the 
benefit  of  the  stockholders  in  the  hands  of 
the  corporation,  which  is  the  trustee;  but 
capital  stock  in  the  corporation,  the  certifi- 
cate of  which  is  in  the  hands  of  the  owner, 
who  has  paid  for  it,  is  neither  a  trust  fund, 
nor  is  its  owner  a  trustee  for  other  stock- 
holders, so  as  to  prevent  the  running  of  the 
statute  of  limitations  in  his  favor.  Taylor 
v.  South  &*  N.  Ala.  R.  Co.,  4  Woods  (U.  S.) 
575.  '3  fed-  t^ep.  152. 

The  rule  that  the  statute  of  limitations 
does  not  bar  a  trust  estate  holds  only  be- 
tween cestui  que  trust  and  trustee  not  as 
between  cestui  que  trust  and  trustee  on  one 
side,  and  strangers,  as  in  this  case  a  railroad 
company,  on  the  other.  Patchett  v.  Pacific 
Coast  R.  Co.,  100  Cal.  505,  35  Pac.  Rep.  73 

09.  Bills  and  notes.  —  During  the 
.civil  war  a  railroad  company  was  author- 
ized to  issue  promissory  notes  to  circulate 
as  money,  which  were  made  payable  on  de- 
mand at  a  fixed  place,  and  could  not  be  re- 
issued as  currency  after  one  year  from  the 
close  of  the  war.  Held,  that  the  statute 
began  to  run  against  such  notes  at  the  date 


'        (     • 


LIMITATIONS   OF   ACTIONS,  70-73. 


2i0 


when  they  ceased  to  be  rcissuable,  without 
any  demand  for  payment;  and  a  statute 
piDviding  that  the  statute  of  limitations 
sliouid  not  apply  to  notes  or  bills  issued  by 
a  bank  did  not  apply.  But/s  v.  Vicl'sburg 
&•  M.  K.  Co.,  63  Miss.  462. 

70.  FramI  or  coiieealiiieiit.— The 
rule  in  equity  that  the  statute  of  limitation!) 
will  not  run  against  a  defrauded  party  until 
he  discovers  the  fraud  requires  that  he 
shall  use  diligence  in  attempting  to  discover 
it ;  and  where  suit  is  brought  after  the  or- 
dinary limitation  has  run,  it  must  be  made 
to  appear  that  by  the  exercise  of  reasonable 
diligence  the  fraud  could  not  sooner  be  dis- 
covered. Taylor  v.  South  &^  N.  Ala.  K. 
Co.,  4  IVoods  (U.  S.)  575.  13  Fed.  Rep.  152. 

A  '  ad  company  which  has  volunta- 
rily placi  d  itself  and  its  property  and  fran- 
chise in  the  hands  of  trustees  to  secure  its 
debt  to  bondholders  cannot  lie  by  when 
sued  for  a  tort  which  it  claims  to  have  been 
committed  by  such  trustees, and  shield  both 
itself  and  the  trustees  from  liability  by 
concealing  the  fact  that  the  trustees  are 
operating  the  road  until  an  action  is  barred 
by  the  statute.  Wisconsin  C.  H.  Co.  v. 
Koss,  53  Am.  &*  Eng.  R.  Cas.  73,  142  ///.  9, 
31  A'.  E.  Rep.  412;  affirming  43  ///.  App. 

454. 

The  Kansas  statute  does  not  run  against 
innocent  parties  who  have  been  defrauded 
until  they  discover  the  fraud.  So  where 
otficers  of  a  corporation  combine  to  misap- 
ply the  funds,  the  statute  does  not  run 
until  the  stockholders  discover  the  misap- 
plication ;  and  knowledge  on  the  part  of 
the  officers  is  not  knowledge  of  the  stock- 
holders. Ryan  v.  Leavenworth,  A.  &>  N. 
ir.  K.  Co.,  21  Kan.  365. 

71.  Iiijiiiictioii  restraining  suit. — 
When  an  injunction  does  not  stay  an  action, 
but  only  prescribes  where  and  how  it  shall 
be  instituted,  the  time  of  the  continuance 
of  the  injunction  is  not  to  be  excluded  in 
determining  whether  the  right  to  sue  is 
barred.  Ri.i,^gs  v.  Le.vington  &*  B.  S.  R.  Co., 
79  AV.  470. 

72.  Suspension  of  liusiness  by  cor- 
porate defendant.— The  Pa.  statute  of 
limitations,  providing  that  its  provisions 
stiall  not  extend  to  any  corporation  that 
may  have  suspended  business,  or  made  any 
transfer  or  assignment  for  the  benefit  of 
creditors,  or  for  any  cause  may  have  ceased 
from  or  suspended  the  ordinary  business 
for  which  it  was  created — held,  to  apply  to  a 


sherifT's  sale  of  a  railroad,  its  property  and 
franchises,  Shamokin  Valley  &*  P.  R.  Co, 
v.  Af alone,  85  J'a.  St.  25. 

7:),  liiKlit  of  foreign  corpurntion 
to  pleuU  the  statute.*— A  foreign  cor- 
poration cannot  avail  itself  of  the  statutes 
of  limitation  of  tlie  state  in  which  it  is  sued. 
A'irdy  v.  Lake  Shore  &'  M.  S.  R.  Co.,  14 
Fed.  Rep.  261.— Following  Olcott  w.  Ti- 
oga R.  Co.,  20  N.  Y.  210;  Hoardman  v. 
Lake  Shore  &  M.  S.  R.  Co.,  84  N.  Y.  157.- 
Olcott  v.  Tioga  R.  Co.,  20  N.  Y.  210;  re- 
versing  26  Barb.  147.— Not  following 
Faulkner  v.  Delaware  &  R.  Canal  Co.,  i 
Den.  (N.  Y.)  441.— Applikd  in  Boardman 
V.  Lake  Shore  &  M.  S.  R.  Co.,  4  Am.  &  Eng. 
R.  Cas.  265, 84  N.  Y.  157.  Disapproved  in 
Wall  V.  Chicago  &  N.  W.  R.  Co.,  69  Iowa 
498.  Followed  in  Tioga  R.  Co.  v.  Bloss- 
burg  &  C.  R.  Co.,  20  Wall.  (U.  S.)  137; 
Kirby  v.  Lake  Shore  &  M.  S.  R.  Co.,  14 
Fed.  Rep.  261 ;  Thompson  v.  Tioga  R.  Co., 
36  Barb.  79. — Mallory  v,  Tioga  R.  Co.,  3 
Abb.  App.  Dec.  (N.  V.)  139,  idHow.Pr.  202, 
3  Keyes  354,  5  Abb.  Pr.  N.  S.  420;  affirm- 
ing  39  Barb.  488. 

And  this,  although  it  has,  for  the  time 
specified  in  the  statute,  before  the  com- 
mencement of  the  action,  continuously  op- 
erated a  railroad  in  the  state,  and  has  prop- 
erty and  officers  therein.  Boardman  v.  Lake 
Shore  6-  M.  S.  R.  Co.,  4  Am.  <S-  Eng.  R. 
Cas.  265,  84  A^.  V.  157.— Applying  Olcott 
V.  Tioga  R.  Co.,  20  N.  Y.  210;  Thompson 
V.  Tioga  R.  Co.,  36  Barb.  79;  Rathbun  v. 
Northern  C.  R.  Co.,  50  N.  Y.  636,  mem. — 
Followed  in  Kirby  v.  Lake  Shore  &  M.  S. 
R.  Co.,  14  Fed.  Rep.  261.— Rathbnn  v.  North- 
ern C.  R.  Co.,  50  A'^  }'.  656,  mem. — Applied 
IN  Boardman  z'.  Lake  Shore  &  M.  S.  R. 
Co.,  4  Am.  &  Eng.  R.  Cas.  265,  84  N.  Y.  157, 
Followed  in  Tioga  R.  Co.  v.  Blossburg  & 
C.  R.  Co.,  20  Wall.  (U.  S.)  137.  — Tioga  R. 
Co.  v.  Blossburg  6-  C.  R.  Co.,  20  IVall.  ( &'.  S.) 
137,  10  ^;«.  Ry.  Rep.  81;  affirming  5  Blatchf. 
((/.  S.)  387.— Following  Thompson  7/.  Ti- 
oga R.  Co.,  36  Barb.  79 ;  Olcott  v.  Tioga  R. 
Co.,  20  N.  Y.  210;  Rathbun  v.  Northern  C. 
R.Co.,  50  N.  Y.  656.— Disapproved  in  Wall 
V.  Chicago  &  N.  W.  R.  Co.,  69  Iowa  498. 
Explained  in  McCabe  v.  Illinois  C.  R. 
Co.,  4  McCrary  (U.  S.)  492,  13  Fed.  Rep. 
827. 

Such  a  corporation  is  within  the  excep- 


*  Right  of  foreign  corporation  to  plead  limi- 
tation, see  note,  18  L.  R.  A.  524. 


830 


LIMITATIONS   OF   ACTIONS,  74. 


tion  to  the  operation  of  the  statute,  by 
which  the  time  of  absL-iicc  from  tlic  state  is 
not  to  he  talceii  as  any  part  of  the  time  lim- 
ited for  tlie  commencement  of  an  action. 
Thompson  v.  rioaa  N.  Co.,  ^G  Hard.  (N.  Y.) 
79.— Fol.i.owiNd  Olcott  7'.  Tio^a  K.  Co., 
20  N.  Y.  210. — Al'i'i.lKi)  IN  Boardman  v. 
Lalce  Shore  «&  M.  S.  K.  Co,,  4  Am.  &  Eng. 
K.  Cas.  265;  84  N,  Y.  157.  FoLLowKi)  IN 
Tii)j;a  K.  Co.  i'.  Biossburg  &  C.  K.  Co.,  20 
VV.ill.  (U.  S.)  137. 

The  general  rule  seems  to  be  that  a  for- 
eign corporation  cannot  plead  tlie  statute 
of  limiiations;  but  when  sued  in  the  state 
for  wrongfully  causing  death,  under  a  stat- 
ute which  prescribes  a  special  limitation, 
the  general  rule  does  not  a{)ply,  and  the 
special  limitation  niay  be  pleaded.  Lon- 
drij^gan  v.  A'fw  York  &*  N.  H.  li.  Co.,  12 
.-m.  N.    Cas.    {N.   Y.)  273. 

It  IS  no  answer  to  a  pica  of  the  statute  of 
hmit.itions  th.it  the  defendants  are  a  cor- 
poration created  by  and  under  the  laws  of 
another  state.  Faulkner  v.  Dclaivarc  &•  R. 
Canal  Co.,  i  Den.  (N.  Y.)  441. — Nor  FOL- 
i.mvKD  IN  Olcott  V.  Tioga  R.  Co.,  20  N.  Y. 
210. 

The  exceptions  to  the  operation  of  the 
statute  of  limitations,  in  cases  where  the 
debtor  or  party  liable  was  out  of  the  state 
when  the  cause  of  action  accrued,  or  subse- 
quently departed  from  the  state  (2  Rev.  St. 
297,  i>  27),  apply  to  natural  persons  only, 
and  not  to  corporations.  Faulkner  v.  Dela- 
ware &•  R.  Canal  Co.,  i  Den.  (N.  Y.)  441. — 
Quoted  in  McCormick  v.  Pennsylvania 
C.  R.  Co.,  49  N.  Y.  303. 

A  foreign  corporation  that,  by  the  laws  of 
a  state  within  which  it  carries  on  business, 
can  sue  and  be  sued  is  not  a  non-resident 
in  the  sense  that  prevents  it  from  setting 
up  the  statute  of  limitations  as  a  defense  in 
an  action  against  it;  and  Iowa  Code,  ^  2533, 
that  provides  that  "the  time  during  which 
a  defendant  is  a  non-resident  of  the  state 
shall  not  be  included  in  computing  the 
period  of  limitation,"  has  no  reference  to 
such  a  case.  McCahe  v.  Illinois  C.  R,  Co.,  4 
McCrary  (U.  S.)  492,  13  Fed.  Rep.  827.— 
Exi'i.AiNiNG  Tioga  R.  Co.  v.  Blossburg  & 
C.  R.  Co.,  20  Wall.  137.  Quoting  Balti- 
more &  O.  R.  Co.  V.  Harris.  12  Wall.  65; 
Baldwin  v.  Mississippi  &  M.  R.  Co.,  5  Iowa 
519;  Bristol  V.  Chicago  &  A.  R.  Co.,  15  111. 
436;  Richardson  v.  Burlington  &  M.  R.  Co., 
8  Iowa  263.  Reviewing  United  States 
Exp.  Co.  V.  Ware,  20  Wall,  543;   Cobb  v. 


Illinois  C.  R.  Co.,  38  Iowa  608.— Followki> 
IN  Guinn  v.  Iowa  C.  R.  Co.,  4  McCrary  (U, 
S.)  566, 14  Fed.  Rep.  323. 

A  railroad  company  doing  business  in 
the  state,  though  incor[)orated  elsewhere,  is 
always  subject  to  notice  and  personal  judg- 
ment in  tlie  courts  of  the  state,  and  hence 
is  a  resident  of  the  state,  within  the  min- 
ing of  the  statute  of  limitations,  and  it  may 
rely  upon  the  statute  in  bar  of  an  action  not 
begun  within  the  time  limited  therefor. 
\Vall\.  Chicago  fi-  A'.  W.  R.  Co.,  69  lo^va 
498,  29  N.  IV.  Rep.  427.— DisAI'l'RoviNG 
Olcott  V.  Tioga  R.  Co.,  20  N.  Y.  210;  Tioga 
R.  Co.  V.  Blossburg  &  C.  R.  Co.,  20  Wall. 
(U.  S.)  143- 

The  absence  of  the  officers  of  a  corpora- 
tion, created  in  Texas  and  carrying  on  its 
business  there,  beyond  the  state,  is  not  the 
absence  of  the  corporation  itself,  so  as  to 
bring  such  corporation  within  the  exception 
contained  in  section  22  of  the  statute  of 
limitations.  Sherman  v.  Uuffalo  Bayou,  B. 
&*  C.  R.  Co.,  21  Tex.  349. 

While  the  office  of  a  corporation  is  kept, 
as  required  by  law,  at  some  place  on  the 
line  of  the  road,  and  a  party  has  full  op- 
portunity to  obtain  service  on  the  company, 
as  provided  by  statute,  it  cannot  be  truly 
averred  that  the  corporation  is  beyond  the 
limits  of  the  state.  Sherman  v.  Buffalo 
Bayou,  B.  &•  C.  R.  Co. ,  2 1  Tex.  349. 

V.  NEW  PBOMISE;   ACQUIESCENCE. 

74.  New  promise. — The  six-year  stat- 
ute of  limitations  of  Colorado  applies  to 
specialties  when  sued  on,  as  well  as  to  simple 
contracts;  and  where  a  municipal  bond 
issued  in  aid  of  a  railroad,  under  seal,  and 
for  the  direct  and  unconditional  payment 
of  money,  is  the  basis  of  the  action,  the  re- 
covery must  be  had  on  the  bond,  and  not 
on  a  subsequent  promise  or  contract  of  less 
solemnity,  so  as  to  make  a  different  limita- 
tion apply.  Toothaker  v.  Boulder,  13  Colo. 
219,  22  Pac.  Rep.  468. 

A  cause  of  action  originating  in  a  breach 
of  a  transportation  contract  is  complete 
when,  within  a  reasonable  time,  the  car- 
rier has  failed  to  perform  it ;  and  from  that 
time  the  statute  of  limitations  begins  to 
run.  Subsequent  demands  for  fulfilment 
by  the  consignor,  and  promises  by  the  car- 
rier, do  not  take  the  case  out  of  the  statute, 
because:  (i)  Of  the  uncertainty  as  to  the 
time  when  the  liability  accrued.     {2)   The 


LIMITATIONS  OF  ACTIONS,  75.— LIMITATIONS  OF  LIABILITY,  i.  331 


uncertainty  would  have  continued  as  long 
us  tlie  carrier  had  the  property  and  failed 
to  transport  it.  (3)  This  theory  assumes  a 
waiver  of  the  currier's  existing  obligations 
at  each  demand.  (4)  Subsequent  promises 
to  Iranspoil  were  not  based  upon  any  con- 
sideration. They  were  simply  promises  to 
do  what  the  carrier  was  already  under  ob- 
ligations to  do.  Cobb  V.  Illinois  C.  A'.  Co., 
38  /(m>ii  601. 

75.  AcquieHCOiice  —  Lnclio8.— Nine- 
teen years'  arfjuiescence  in  a  lease  bars  a 
suit  to  fleclare  it  void.  S/,  Louis,  V.  &•  T. 
II  A'.  Co.  V.  Terre  Haute  6-  /.  K.  Co.,  33 
/•■(•(/.  /iV/>.  440. 

Where  the  right  is  claimed  by  a  company 
to  flow  water  upon  the  lot  of  another  by 
user  for  twenty  years,  the  owner's  complaint 
of  the  act  within  that  period  to  the  station 
agent  of  the  company,  and  demand  that  it 
be  stopped,  will  defeat  the  right  claimed,  as 
rebutting  the  presumption  of  acquiescence. 
Chicago  &^  A'.  U\  /v'.  Co.  V.  Hoag,  90  ///. 
339.  — DlSAPPROviNfJ  Kimball  v.  Ladd,  22 
Vt.  747  ;  School  District  v.  Lynch,  33  Conn. 

334. 

The  delay  of  the  plaintiff  for  a  period  less 
than  twenty  years  to  notify  the  company  of 
his  injuries  could  not  estop  him  or  give  the 
company  a  prescriptive  right  to  maintain 
ilie  embankment  without  liability  for  dam- 
ages, Knight  V.  Albemarle  &*  R.  K.  Co.,  1 1 1 
X.  Car.  80,  1 5  S.  E.  Rep.  929. 

A  failure  to  bring  suit  for  eighteen  years 
after  a  railroad  has  been  so  constructed  as 
to  divert  a  stream  of  water  from  its  course 
is  not  such  acquiescence  as  to  prevent  an 
injured  party  from  maintaining  an  action, 
where  the  evidence  shows  that  at  the  time 
tlie  road  was  built  he  insisted  that  a  culvert 
siioiikl  be  built,  and  from  time  to  time 
thereafter  objected  to  the  diversion  of  the 
water.  Young  v.  Chicago  &•  N.  W.  R. 
Co..  28  Wis.  171,  5  Am.  Ry.  Rep.  159. — Dis- 
TiNcuisHKi)  IN  O'Connor  7'.  Fond  du  Lac, 
A.  &  P.  K.  Co.,  5  Am.  &  Eng.  R.  Cas.  82,  52 
Wis.  526,  38  Am.  Rep.  753.  Reviewed  in 
Chicago  &  A.  R.  Co.  v.  Kansas  City,  I.  &  P. 
K.  Co.,  1 10  Mo.  510. 


LIMITATIONS  OF  LIABILITY. 

As  between  connecting  lines,  see  Carriage 

ci   .Mkrchandise,  005-<M)0. 
—  to  persons    riding    on    free    passes,    sec 

I'ASSKS.   20-30. 

For  articles  left  in  cloak  room,  see  Baggage, 
130,  131. 


For  lots  Ly  fire,  see   Rii.ls  of  Lading,  73- 

HO;  FiKF.s,  2UO. 
or  injury  to  dogs  carried,  .see  Cakkiaor 

UK  LiVK  .Stock,  117. 
■  -  misdelivery,    to    wilful    misconduct,    see 

Cakkiack  ()1-  Mkucma.mmsk,  :iH5. 

—  negligence,  whereby    employes    are    in- 

jured, sec  Emi'i.ovAs,  Injuries  to,  170- 
IHl. 
In  bills  of  lading,  see  Hiu.s  of  Lading,  iVl- 
72. 

—  passenger  tickets,  seeTicKKTsAND  Fares, 

14-21,  10«. 

Of  carrier  of  baggage,  see  Baggage,  OO- 
103. 

cattle,  see  Carriage  of  Live  Stock, 

»2-100. 

goods,  sec  Carriage  of  Merchan- 
dise, 430-4U0. 

passengers,  see  Carriage  of  Pas- 
sengers, 330-.34]. 

—  express    companies,    see    Exi'ress  '  Com- 

I'ANIES,   <IO-74. 

—  initial    carrier,  to  its  own  line,  see  H^g- 

gage,21;  Carriage  of  Live  Stock,  104; 
Carhiage  of  Merchandise,  074-081 ; 
Carriage  of  Passengers.  503,  511. 

—  transfer  company,  for  baggage,  see  Bag- 

gage, 78. 
Waiver  of,  by  agents,  see  Agency,  58. 

I.  POWER   TO    LIMIT    COMMON    LAW 

LIABILITY 331 

II.  STIPULATIONS  AGAINST  LIABILITY 

FOB  NEOLIOENCE 341 

III.  BUBDEN  OF  PBOOF:  PBESUMPTIONS.  348 

I.  POWEB  TO  LIMIT  COMMON  LAW 
LIABILITY. 

1.  In  general."' — A  railway  company, 
by  accepting  and  acting  under  its  charter, 
becomes  a  carrier  of  persons  and  property, 
and  the  law  imposes  all  tlic  duties  and  lia- 

*  Power  of  common  carriers  to  limit  their 
common  law  liability.  Auihorities  arranged  by 
states,  see  notes,  35  Am.  &  Eng.  R.  Cas.  672, 
82  Am.  Dec  379. 

Right  to  limit  common  law  liability  in  the  ab- 
sence of  negligence,  see  note,  l8  L.  R.  A.  527. 

Carrier  may  restrict  its  common  law  liability, 
see  note,  3  L.  R.  A.  425. 

Construction  of  statutes  restraining  carriers  In 
the  limitation  of  their  common  law  liability,  "see 
note,  30  Am.  &  Eng.  R.  Cas.  55. 

Connecting  lines.  When  contracts  limiting 
liability  enure  to  benefit  of  connecting  carriers, 
see  notes.  32  Am.  &  Eng.  R.  Cas.  474;  18  Id. 
596  ;  16  Id.  241. 

Power  of  carrier  to  stipulate  for  exemption 
from  liability,  see  notes,  3  Am.  &  Eng.  R.  Cas. 
272  ;  9  Id.  1 10. 


'M2 


LIMITATIONS   Ob^   LIABILITY,  12. 


bill  ties  of  a  common  carrier  upon  it,  and 
such  company  cannot  exonerate  itself  from 
sucli  duty  and  responsibility  by  contract  with 
others,  nor  in  any  wise  escape  or  free  itself 
from  liability  unless  released  by  the  general 
assembly.  IVabash,  St.  L.  &•  P.  K.  Co.  v. 
Peyton,  18  Am.  &*  Eng.  R.  Las.  I,  106  ///. 
534,  46  Am.  Rep.  705. 

It  IS  not  error  to  refuse  instructions  to  the 
jury  as  to  the  power  of  a  common  carrier 
to  limit  his  liability  if  there  is  nothing  in 
the  evidence  to  warrant  them.  Central  R, 
&*  B.  Co.  V.  Mines,  19  Ga.  203. 

Under  section  7  of  the  Railway  and 
Canal  Traffic  Act,  the  declaration  of  the 
value  of  an  article  shipped  must  be  made 
by  the  sender,  with  the  intention  that  it 
shall  be  so  understood,  and  for  the  purpose 
of  insurance.  Robinson  v.  London  Sf*  S.  IV. 
R.  Co.,  19  C.  B.  iV.  5.  51,  i\Jur.N.S.y)o,  34 
L.J.  C.  P.  234,  13  W.  R.  660. 

2.  Liiiiitutioii  by  express  coutract.'*' 
—  It  is  now  the  admitted  doctrine  in  America 
(as  it  has  been  settled  beyond  a  reasonable- 
doubt  in  England)  that  it  is  competent  for 
a  common  carrier  to  limit  his  common  law 
liability  by  express  contract.  Mobile  &*  O. 
R.  Co.  V.  Weiner,  49  Aliss.  725.  Tardos  v. 
Chicago,  St.  L.  <S^  A'.  O.  R.  Co.,  35  La.  Ann. 
1 5.  Ban/card  v.  Baltimore  6>»  O.  R,  Co.,  34 
A/d.  197. — Not  followed  in  Lupe  v.  At- 
lantic &  P.  R.  Co.,  3  Mo.  App.  77.— Mc- 
Millan V.  Mulligan  S.  6-  A^.  /.  R.  Co.,  16 
Mich.  79.  Hutchinson  v.  Chicago,  St.  P., 
M.  &•  O.  R.  Co.,  37  Minn.  524,  35  N.  IV. 
Rep.  433.  Dorr  v.  New  Jersey  Steam  Nav. 
Co.,  4  Sand/.  (A^.  V.)  136.— Not  follow- 
ing Gould  V.  Hill,  2  Hill  (N.  Y.)  623. 
Quoting  New  Jersey  Steam  Nav.  Co.  v. 
Merchants'  Bank,  6  How.  (U.  S.)  344. — 
L>,ina  V.  Men/  York  C.  &*  H.  R.  R.  Co.,  50 
Ho7i<.  Pr.  {N.  Y.)  428.*- Following  Long  w. 
New  Y<jrk  C.  R.  Co..  50  N.  Y.  76 ;  Belger  v. 
Dinsmore,  51  N.  Y.  166;  Steers  v.  Liverpool, 
N.  V.  &  P.  Steamship  Co.,  57  N.  Y.  i ; 
Hinckley  v.  New  York  C.  &  H.  R.  R.  Co.. 
56  N.  Y.  42().~Stciger  w.ErieR.  Co.,  5  Hun 
(A.  J'.)  345. —  Applying  Cragin  v.  New 
York  C.  R.  Co..  51  N.  Y.  61  ;  Penn.  v. 
Buffalo  A  E.  R.  Co.,  49  N.  Y.  204;  Dorr  v. 


*  Right  of  carrier  to  limit  or  restrict  liability 
by  contract,  see  notes,  i  L.  R.  A.  500;  3  /,/.  343; 
6  /,/.  S49;  7  Id.  214;  10  Id.  419;  12  Id.  799;  13 
/'/.  362. 

Carriers'  liability  may  be  limited  by  express 
contract,  see  notes,  5  Am.  St.  Rep.  725;  13  L. 
R.  A.  518. 


New  Jersey  Steam  Nav.  Co.,  11  N.  Y.  485. 
— Lucesco  Oil  Co.  v.  Pennsylvania  R.  Co.,  2 
Pittsb.  (,Pa.)  477.  iiwindler  v.  Hilliard,  2 
Rich.  (So.  Car.)  286.— Followed  in  Shriver 
2/.  Sioux  City&  St.  P.  R.  Co.,  24  Minn.  506. 
— McCariy  v.  Gulf,  C.  &*  S.  J-'.  Ji.  Co.,  79 
Tex.  33.  IS  S.   ir.  Rep.  164. 

At  least  against  all  risks  but  his  own 
negligence  or  misconduct.  Squire  v.  New 
York  C.  R.  Co.,  98  Mass.  239.— Followed 
IN  Pemberton  Co.  v.  New  York  C.  K.  Co.. 
104  Mass.  144. — Merrill  v.  American  Exp. 
Co.,  62  N.  H.  514.  Baltimore  ^  O.  R.  Co. 
V.  Sheels.  3  IV.  Va.  556, 

But  the  contract  ought  to  be  m  clear 
and  distinct  terms.  McCoy  v.  Erie  &^  It '. 
Transp.  Co.,  42  Md.  498,   14  Am.  Ry.  Rep. 

3>7- 

And  it  must  be  fairly  obtained,  and  just, 
and  reasonable.  Louisville  <&>•  A'.  A'.  Co.  v. 
Gilbert,  42  Am.  &*  Eng.  R.  Cas.  yji,  88 
Tenn.  430,  7  L.  R.  A.  162,  12  S.  W.  Rep. 
1018. 

And,  notwithstanding  the  special  con- 
tract, he  remains  a  common  carrier,  with 
his  common  law  liability  restricted  in  so 
far  as  it  may  be  lawfully  restricted  by  the 
contract.  Kirby  v.  Adams  Exp.  Co. ,  2  Mo. 
App.  369.— Quoting  Southern  Exp.  Co.  v. 
Moon,  39  Miss.  831.— Followed  in  Drew 
V.  Red  Line  Transit  Co.,  3  Mo.  App.  495. 

The  rigorous  accountability  to  which 
common  carriers  of  goods  and  baggage 
have  been  held  as  against  all  losses  has 
been  relaxed  so  far  as  to  allow  that  liability 
to  be  qualified  to  some  extent  by  contract 
between  the  earner  and  the  employe*. 
Louisville,  N.  A.  &*  C.  R.  Co.  v.  Nicholai,  4 
Ind,  App.  1 19,  30  A'.  E.  Rep.  424. 

Act '124,  Laws  of  1867  (How,  Mich.  St.  ? 
3418),  11)  so  far  as  it  requires  any  change  in 
or  limitation  of  the  common  law  liability 
of  a  railroad  company  as  a  common  carrier 
to  be  evidenced  by  a  contract  whollv  in 
writing,  is  repealed  by  How.  St.  §  3328. 
which  permits  such  agreement  to  be  either 
written  or  printed.  Feige  v.  Michigan  C. 
R.  Co.,  62  Mich.  \,2%  N.   W.  Rep.  685. 

Where  a  shipper  signs  an  agreement  that 
y^  will  not  hold  the  company  liable  for  loss 
of  market,  or  other  claims,  arising  from 
delay  or  detention  on  the  journey,  under 
any  circumstances,  the  same  is  binding. 
Hartness  v.  Great  Western  R.  Co.,  2  Mich. 
N.  P.  80. 

Under  section  7  of  the  Riiilway  and 
Canal   Traffic  Act,   a  special  contract    in 


^ .  'xm 


LIMITATIONS   OF   LIABILITY,  3,  4. 


333 


writing  must  itself  set  out  or  embody  the 
coiidiiion  limiting  the  carrier's  liability. 
JWA-  V.  A'or/Zt  Stiiffordshire  K.  Co.,  lo  H.  L. 
f'ls.  473.  9  /'""•  ^■^'-  ^-  9'4.  32  L.  J.  Q.  B. 
241,  II  W.  R.  1023,  8  L.  T.  768.— CoNSiu- 
KUiD  IN  Manchester,  S.  &.  L.  1'..  Co.  i/. 
Brown.  L.  K.  8  App.  Cas.  703,  53  L.  J.  y.  B. 
124,  50  L.  T.  281,  32  W.  R.  207.  Followed 
IN  Aslienden  v.  London,  B.  <&  S.  C.  K.  Co., 
L.  K.  5   Ex.  D.  190,  42  L.  T.  586,  28  VV.  R. 

511,^4  J-  ^'  20:. 

3.  Coiitrautii  liiiiitint;  niuoiiut  rc- 
covenible.*— It  is  now  well  settled  that  a 
common  carrier  may,  by  special  contract, 
limit  or  qualify  the  liability  resting  upon 
him  as  an  insurer  ;  and  this  limitation  may 
e-xtcnd,  not  only  to  the  risks  or  accidents 
for  which  the  carrier  will  be  answerable, 
but  to  the  amount  of  damages  tor  which  he 
is  to  be  liable  in  the  event  of  loss  or  injury. 
Alabama  G.  S.  K.  Co.  v.  Little,  1 2  Am.  &• 
Eiig.  K.  Cas.  37,  71  Ala.  611.— Reviewed 
IN  Louisville  &  N.  R.  Co.  v.  Sherrod,  84 
Ala.  178,  4  So.  Rep.  2^.— Brown  v.  IVabash, 
St.  L.  <&«•  P.  R.  Co.,  18  Mo.  App.  568  - 
Following  Harvey  v.  Terre  Haute  &  I.  R. 
Co.,  74  Mo.  538.  Quoting  Hart  v.  Penn- 
sylvania R.  Co.,  112  U.  S.  331. — Fibel  \. 
Livingston,  64  Barb.  (N.   Y. )  179. 

Where  a  shipper  of  property  enters  into 
a  contract  with  a  common  carrier,  whereby, 
in  -consideration  of  an  agreement  of  the 
latter  to  transport  the  property  at  reduced 
rates,  it  is  stipulated  that  in  the  event  of 
loss  or  injury  resulting  frcm  causes  which 
would  make  the  carrier  liable  the  liability 
shall  be  limited  to  an  amount  not  exceed- 
ing a  valuation  specified,  the  shipper,  in 
case  of  loss  or  injury,  is  not  entitled  to  re 
cover  more  than  the  sum  specified.  Zim- 
m,r  V.  Ne^t)  York  C.  <S-  H.  A\  A'.  Co.,  \yj  N. 
V.  460,  33  A'.  E.  Rep.  642,  51  A'.  Y.  S.  R. 
269;  re7>ersing  in  part  63  Hun  631,  44  A''.  Y. 
.v.  A'.  937,  18  A';  Y.  Supp.  945.— Foi.LOW- 
IN(.  Fifield  V.  New  York,  L.  &  W.  R.  Co., 
125  N.  Y.  704. — Cono7>er  v.  Pacific  Exp.  Co., 
40  MiK  App.  31.— Reviewing  Harvey  v. 
Tcrrc  Haute  &  I,  R.  Co.,  74  Mo.  538;  Mc- 
Fadden  j>.  Missouri  Pac.  R.  Co.,  92  Mo. 
34i  — A*<3f<i«  v.  Wabash  R.  Co.,  51  Mo.  App. 
665. 

A  stipulation   in  a  written  contract  of 
shipment  placing  a  limited  valuation   on 


•Validity  of  stipulations  limiting  carriers'  lia- 
bility to  a  particular  amount.  Agreed  valua- 
tions, see  notes,  4$  Am.  &  Eng.  R.  Cas  319;  ai 
Id.  91;  18  Id.  613;  33  Am.  St.  Rep.  S93< 


the  property  shipped  in  case  of  its  loss  by 
the  default  of  the  carrier,  when  not  made 
in  consideration  of  special  or  reduced  rates 
of  shipment,  is  not  binding  on  the  shipper, 
McFadden  v.  Missouri  Pac.  R.  Co.,  30  Am. 
iSr'  Eng.  R.  Cas.  17,  92  J/o.  343,  10  West. 
Rep.  372,  4  S.  ir.  Rep.  6S9.— Distingulsh- 
ing  Hart  V.  Pennsylvania  R.  Co.,  112  U.  S. 
331  ;  Harvey  v.  Terre  Haute  &  I.  R.  Co.,  74 
Mo.  538. 

Ordinarily  the  value  agreed  upon  fixes  the 
liability  of  the  carrier,  but  on  the  one  hand 
the  carrier  cannot  limit  his  liability  by  an 
undervaluation,  nor  on  the  other  can  the 
shipper  increase  the  liability  by  an  over- 
valuation of  the  property  shipped,  so  as  to 
estop  the  carrier  from  showing  its  true 
value.  Chicago  »S-»  A',  W.  R.  Co.  v.  Chap- 
man, \i  Am.  &*  Kng.  R.  Cas.  392,  133  ///. 
96,  24  N.  E.  Rep.  417;  affirming  30  ///. 
App.  504. 

A  provision  in  a  contract  of  carriage 
that  the  carrier  shall  pay  five  cents  per  100 
pounds  for  every  day  that  freights  are  de- 
layed beyond  a  fixed  time  does  not  limit 
the  liability  of  the  carrier  thereto.  In  ad- 
dition thereto  the  carrier  is  liable  for  any 
actual  damage  occasioned  by  the  delay. 
Place  V.  Union  Exp.  Co.,  2  Hilt.  {N.  Y.)  19. 

4.  Contract  must  be  just  and  rea- 
sonable.'" —  A  contract  restricting  the 
responsibility  of  the  carrier  must  be  rea- 
sonable, and  not  calculated  to  ensnare  or 
defraud  the  other  party.  Capehart  v.  .SV.i- 
boardS^  R.  R.  Co.,  81  A'.  Car.  438. 

The  stipulation  for  exemption  from  re- 
sponsibility must  be  just  and  reasonable  in 
the  eye  of  the  law,  and  hence  it  is  not  law- 
ful so  to  stipulate  as  respects  the  negligence 
of  the  carrier  or  its  agents.  Phifer  v.  Caro- 
lina C.  R.  Co.,  89  A^.  Car.  311,  45  A»'.  R'P- 
687.  M'Nally  v.  Lancashire  &'  Y.  R.  Co., 
8  Ir.  L.  R.  81,  4  A>.  &•  C.  T.  Cas.  xix. 

A  provision  in  a  shipping  contract  that 
in  the  event  of  loss  or  damage  the  carrier 
will  be  liable  only  for  the  value  of  the 
goods  at  the  place  and  at  the  time  of  ship- 
ment is  just  and  reasonable,  and  will  be 
enforced.  Louisville  6-  A'.  R.  Co.  v.  Oden, 
80  Ala.  38.— Following  South  &  N.  Ala. 
R.  Co.  V.  Henlein,  52  Ala.  606. 


*  Limitation  of  carriers'  liability  must  be  rea 
sonable,  see  notes,  S  Am.  St.  Rep.  725;  13  /</. 
784. 

English  Railway  and  Canal  Traffic  Act.  Just 
and  reasonable  conditions,  see  note,  16  Am.  & 
Eng.  R.  Cas.  187. 


I 
I 


334 


LIMITATIONS  OF    LIABILITY,  6-7. 


;     5! 


11 


1^'- 


ip 


A  set  of  conditions  limiting  a  carrier's 
liability  is  unreasonable  and  void  if  any 
part  of  it  is  unreasonable.  A'/r^/  v.  Grtutt 
IVestern  R.  Co.,  i8  L.  T.  658. 

Under  section  7  of  the  Railway  and 
Canal  Traffic  Act,  a  Condition  limiting  the 
carrier's  liability  must  be  just  and  reasona- 
ble in  .the  judgment  of  the  court,  and  must 
be  set  out  in  a  written  contract,  signed  by 
or  on  behalf  of  the  consignor.  AUiridgev. 
Great  Western  K.  Co.,  1 5  C.  B.  N.  S.  582. 
33  L.  J.  C.P.  161.  Simons  v.  Great  West- 
ern K.  Co.,  18  C.  B.  805,  26  L.  J.  C.  P.  25.— 
Questioned  in  Garton  v.  Bristol  &  E.  R. 
Co.,  I  B.  &  S.  1 12,  30  L.  J.  Q.  B.  273,  7  Jur. 
N.  S.  1234,  9  W.  W.  Ti\.—Feek  v.  North 
Staffordshire  R.  Co.,  10  //  L.  Cas.  473,  9 
/ur.  N.  S.  914,  32  ^-Z-  {2-  ^-  241.  'I  f^-  A'. 
1023,  8  L.  T.  768. 

In  considering  whether  conditions  an- 
nexed to  carriers'  special  contracts  are  just 
and  reasonable,  such  conditions  must  be  con- 
strued according  to  the  ordinary  meaning 
of  their  language,  without  implying  any 
limitation  or  e-xception  not  expressed. 
M'Nally  v.  Lancashire  <S-  F.  R.  Co.,  8  Ir. 
L.  R.  81,  4/0'.  <S-f.  T,  Cas.  xix. 

5.  As  to  whether  the  hig:her  rate 
of  freight  la  a  reasoiiuhle  alteriin- 
tlve. — A  contract  limiting  the  carrier's  lia- 
bility/)r/;«rt /(Ji"/*?  unjust  and  unreasonable 
becomes  just  and  reasonable  if  the  shipper 
is  given  an  alternative  to  enter  into  a  con- 
tract wh  jh  is  just  and  reasonable.  Galla- 
gher  V.  Great  Western  R.  Co.,  8  Ir.  R.,  C.  L. 
326. 

Where  a  railway  company  charges  alter- 
native rates,  the  lower  being  at  the  owner's 
risk,  the  higher  rate,  if  within  the  maximum 
allowed,  is  not  necessarily  unreasonable. 
Foreman  v.  Great  Western  R.  Co.,  38  L.  T. 
851. 

The  question  whether  the  higher  rate  is  a 
reasonable  alternative  should  be  left  to  the 
jury.  Ruddy  v.  Mid/and  G.  fV.  R.  Co..  8 
//-.  Z.  R.  224. 

The  mere  fact  that  shippers  invariably 
avail  themselves  of  such  lower  rate  is  not 
evidence  that  the  higher  rate  is  unreason- 
able or  prohibitory  ;  that  question  is  for  the 
jury.  Foreman  v.  Great  Western  R.  Co..  38 
L.  T.  851. 

O.  Must  be  a  coiiHideratloii  for  the 
contract.  —  A  common  carrier  has  no 
power  to  restrict,  in  any  manner,  his  com- 
mon law  liability,  but  is  bound  to  transport 
the  property  intrusted  to  him  under  this 


liability,  if  it  be  not  waived,  or  changed  by 
contract.  But  he  may  make  any  contract 
with  an  individual  relative  to  the  transpor- 
tation of  his  property  which  the  latter  may 
deem  conducive  to  his  interest,  and  enter 
into  upon  a  consideration  satisfactory  to 
himself,  though  a  diminution  of  the  carrier's 
common  law  liability  results  therefrom. 
Michigan  C.  R.  Co.  v.  Hale,  6  Mich.  243.— 
Not  Following  Rome  R.  Co.  v.  Sullivan, 
14  Ga.  277.  OvERRULiNtJ  Michigan  C.  R. 
Co.  V.  Ward,  2  Mich.  538. 

A  common  carrier  may  stipulate  for  limi- 
tation of  or  exemption  from  his  common 
law  responsibility  for  loss  of  freight  occur- 
ring through  other  cause  than  his  negli- 
gence (e.  g.,  accidental  lire),  provided  tlie 
contract  is  supported  by  a  bona  fide,  and 
not  merely  colorable,  consideration,  and  is 
fair  and  reasonable  in  itself  in  view  of  all 
the  surrounding  circumstances,  and  the  as- 
sent of  the  shipper  thereto  is  fairly  obtained. 
Louisville  i^  .^V.  A'.  Co.  v.  Gilbert,  42  Am.  &^ 
Eng.  A'.  Cas.  372,  88  Tenn.  430,  \i  S.  W. 
Rep.  1018,  7  L.  R.  A.  162.— Quoting  Dil- 
ard  V.  Louisville  &  N.  R.  Co.,  2  Lea  (Tenn.) 
288;  BissellT'.  New  York  C.  R.Co.,  25  N.  Y. 
442.  Louisville  &^  N.  R.  Co.  v.  Manchester 
Mills,  88  Tenn.  653,  14  5.   W.  Rep.  314. 

As  the  law  compels  the  carrier  to  take 
goods  for  transportation,  it  may  be  difficult 
to  see  what  consideration  there  is  to  sup- 
port a  contract  for  a  release  of  the  carrier 
from  responsibility,  yet  it  is  a  matter  with 
which  the  courts  can  no  longer  deal.  Kirhy 
V.  Adams  Exp.  Co. .  2  Mo.  App.  369. 

Semble.  that  a  common  carrier  for  hire 
can  protect  himself  by  an  express  contract, 
to  such  extent  only  as  will  render  his  liabil- 
ity no  greater  than  that  of  a  special  carrier 
for  hire ;  also,  that  to  render  a  parol  con- 
tract to  that  effect  binding  upon  the  other 
party  there  should  be  a  consideration  there- 
for, and  that  otherwise  it  would  be  nudum 
pactum.  Glenn  v.  Charlotte  &•  .S'.  C'.  A'.  Co.. 
63  A'.  Car.  510.  — Followed  in  Capchart  7-. 
Seaboard  &  R.  R.  Co.,  81  N.  Car.  438. 

7.  Itediictioii  of  tVeight  an  a  con- 
sideration. *  —  A  reduction  i-n  freigiit 
charges  is  a  sufficient  consideration  to  sup- 
port such  a  contract.  So  likewise  is  the 
increased  responsibility  assumed  by  the  car- 
rier in  giving  through  bills  of  lading  for  ship- 
ment of  goods  over  other  lines  beyond  its 

•  Carrying  at  reduced  rate  in  consideration 
that  carriers'  liability  be  limited,  see  35  AM.  & 
Eng.  R.  Cas.  614,  aistr. 


!■ 


Sr. 


wmmmfmm^ 


LIMITATIONS   OF  LIABILITY,  8,9. 


335 


own  terminus.  Louisville  &*  A',  R.  Co.  v. 
Manchester  Mills,  88  Tenn.  653,  14  S.  W. 
Rip.  314.  Dillard  v.  Louisville  6-  A'.  R. 
Co.,  2  Lea  ('J'enn.)  2S8.— Approving  York 
Mfg.  Co.  V.  Illinois  C.  R.  Co.,  3  Wall.  (U.  S.) 
113.  Following  Olwell  v.  Adams  Exp. 
Co.,  I  Cent.  L.  J.  186.  Quoting  New 
York  C.  R.  Co.  7/.  Lockwood,  17  Wall. 
360.— Distinguished  in  Merchants'  Dis- 
patch Transp.  Co.  v.  Bloch,  86  Tenn.  393, 
6  Am.  St.  Rep.  847,6  S.  VY.  Rep.  8S1. 
yuoTEU  in  Louisville  &  N.  R.  Co.  v.  Gil- 
bert, 42  Am.  &  Eng.  R.  Cas.  372,  88  Tenn. 
430,  12  S.  W.  Rep.  loiS,  7  L.  R.  A.  162. 

When  a  company  charges  alternative 
rates  for  conveyance  of  cattle  or  goods,  the 
lower  rate  being  at  owner's  risk,  a  priori 
the  higher  rate,  if  within  the  parliamentary 
limit,  is  not  necessarily  unreasonable  or 
prohibitory.  J-'oreman  v.  Ureal  Western 
R.  Co.,  38  L.  r.  S51,  3  Ry.  &'  C.  T.  Cas. 
x.\viii.  Harris  \.  Midland R.  Co. ,21  W.  R. 
63-  3  ^0'-  <^  ^'  ^ •  ^'"-  xxvi.  Gallagher  v. 
Great  Western  R.  Co..  8  Ir.  R.,  C.  L.  326,  3 
Ry.  &^  C.  T.  Cas.  xxviii. 

Under  the  Railway  and  Canal  Traffic  Act, 
1S54,  there  is  sufficient  ofTer  of  an  option  of 
a  lower  rate  at  the  owner's  risk,  or  a  iiigher 
rate  at  the  company's  risk,  if  there  is  a  no- 
tice to  this  effect  in  the  consignment  note, 
and  the  higher  rate  is  posted  up  in  the  com- 
pany's office,  and  the  consignment  note 
signed  on  behalf  of  the  shipper  has  been  in 
general  use  for  some  time  and  has  been 
adopted  by  him.  Foreman  s.  Great  Western 
R.  Co.,  38  L.  r.  851. 

The  plaintiff,  under  a  contract  in  writing 
signed  by  his  agent,  delivered  to  the  defend- 
ants certain  clieeses  to  be  carried  from  L.  to 
S.  "  iit  owner's  risk."  As  the  plaintiff  knew, 
the  defendants  had  two  rates  of  carriage:  a 
liigher  rate  when  they  took  the  ordinary 
liability  of  carriers,  and  a  lower  when  they 
were  relieved  of  all  liability  except  that  aris- 
ing from  the  wilful  misconduct  of  their  ser- 
vants. In  using  the  words  "  owner's  risk  " 
the  plaintiff  intended  that  the  cheeses 
should  be  carried  at  the  lower  rate,  and  sub-, 
ject  to  the  conditions  restricting  the  de- 
fendants' liability.  The  defendants' servants 
packed  the  cheeses  in  such  a  manner  that 
during  their  transit  upon  the  defendants' 
railway  they  were  damaged,  but  the  defend- 
ants' servants  did  not  know  that  d.image 
would  result  from  the  mode  in  which  the 
cheeses  were  packed.  Held,  that,  as  the 
defendaits  carried  at  alternative  rates,  the 


condition  excepting  them  from  liability 
when  carrymg  at  the  lower  rate  was  just 
and  reasonable  within  the  meaning  of  sec- 
tion 7  of  the  Ry.  &  C.  Tr.  Act  1 854,  and  that 
the  injury  to  the  cheeses  had  not  arisen 
from  the  wilful  misconduct  of  their  servants. 
Lewis  V.  Great  Western  R.  Co.,  3  Q.  B.  D. 
195,  Xl  L.  J.  Q.  B.  \i\,i  Ry.  6-  C.  T.  Cas. 
xxviii. 

8.  Ett'cct  of  sliipperVs  failure  to 
read  contract.  — Persons  entering  into  a 
written  or  printed  contract  are  bound  to 
examine  and  ascertain  its  contents,  and  if 
they  accept  it  without  objection  they  are 
bound  by  its  terms,  in  the  absence  of  fraud 
or  imposition.  Brown  v.  Wabash,  St.  L.  &* 
P.  R.  Co.,  18  Mo.  App.  568.— Following 
St.  Louis,  K.  C.  &  N.  R.  Co.  v.  Cleary,  77 
Mo.  634.  ^7.  Louis,  /.  M.  &•  S.  R.  Co.  v. 
Ifeai-ly,  35  Am.  &•  Eng.  R.  Cas.  635,  50  Ark. 
297,  7  Am.  St.  Rep.  104,  8  S.  W.  Rep.  134.—- 
Disapproved  in  Louisville  &  N.  R.  Co.  v. 
Wynn,45  Am.&  Eng.  R.  Cas.  312,  88  Tenn. 
320,  14  S.  W.  Rep.  311.  Quoted  in  Terre 
Haute  &  L.  R.  Co.  v.  Sherwood,  132  Ind. 
129. — Zimmer  v.  New  York  C.  <S-  H.  R. 
R.  Co.,  137  A',  y  460,  33  A'.  E.  Rep.  642, 
S I  A'.  J^  5.  R.  269 ;  reversing  in  part  63 
Hun  631,44  A^.  v.  S.  R.  937,  18  ^V  V.  Supp. 
945.— Following  Fifield  v.  New  York,  L. 
&  W.  R.  Co.  125  N.  Y.  7o\.— Lewis  v.  Great 
Western  R.  Co.,  ^  H.  &•  N.  867,  29  L.  J. 
Ex.  425. 

It  is  not  correct  in  all  cases  to  charge  a 
jury  that  unless  a  shipper  knowingly  assents 
to  a  restriction  of  the  carrier's  liability  it 
will  not  relieve  the  company  of  its  common 
law  liability;  and  whether  he  did  assent  is 
a  question  for  the  jury.  This  rule  might 
apply  where  the  shipper  does  not  sign  the 
contract,  but  only  takes  a  receipt;  but 
where  he  signs  the  contract,  and  there  is  no 
other  reason  why  it  should  not  ^e  valid,  it 
is  not  a  question  for  the  jury  whether  he 
understood  the  contract.  Chicago,  B,  &-  Q. 
R.  Co.  V.  Hale.  2  ///.  App.  150. 

O.  Contract  niiiHt  be  signed  by 
shipper.— The  fact  that  a  shipper  sent  a 
note  to  a  station  agent  requesting  that  goods 
be  shipped  "  not  insured  "  did  not  constitute 
a  special  contract  signed  by  the  parties  so 
as  to  relieve  the  company  from  liability 
within  the  meaning  of  section  7  of  the  Rail- 
way and  Canal  Traffic  .Act.  Peei  v.  A'orth 
Staffordshire  R.  Co.,  10  H.  L.  Cas.  473,  9 
/ur.  N.  S.  914.  32  ^/-  Q-  B.  241,  II  W.  R. 
1023,  8  L.  T.  768.— Considered  in  Man- 


'!>;■   ■ 

1 

i 

i-r 

h 

s 

<:i 


fl 


M 


336 


LIMITATIONS   OF   LIABILITY,  10-12. 


Chester,  S.  &  L.  R.  Co.  v.  Brown,  L.  R.  8 
App.  Cas.  703,  S3  L.  J.  y.  B.  124,  50  L.  T. 
281,  32  VV.  R.  207.  Followed  in  Aslien- 
den  V.  London,  B.  &  S.  C.  R.  Co.,  L.  R.  5 
Ex.  D.  190,  42  L.  T.  5S6,  28  VV.  R.  511,  44  J, 
P.  203. 

It  is  only  where  the  company  seeks  to 
exempt  itsulf  from  liability  by  reason  of 
there  being  a  special  contract  that  the  pro- 
viso in  section  7  of  the  Railway  and  Canal 
Traffic  Act  to  the  effect  that  no  special  con- 
tract shall  be  binding  upon  or  affect  any 
party  unless  the  same  be  signed  by  him, 
etc.,  applies.  Baxendale  v.  Great  Western 
R.  Co.,  38  L.  J.  Q.  B.  137,  L.  R.  4  Q-  B.  244. 
17  W.  R.  412. 

10.  Contract  made  after  injury 
occurred.  —  Where  a  horse  is  injured 
while  attempting  to  load  him  on  the  cars,  a 
shipping  contract  thereafter  entered  into 
which  contains  no  release  of  past  liabilities 
does  not  relieve  the  carrier  of  the  injury 
already  caused.  McCullougk  v.  Wabash 
Western  R.  Co.,  34  Mo.  App.  23. 

11.  By  printed  notice  to  tlie  pub- 
lic* —  A  railway  company  may  limit  its 
common  law  liability  as  carrier  by  notice. 
Pet'f^  V.  North  Stttffordshire  R.  Co.,  9  /ur. 
N.  S.  914,  32  L./.  Q.  />'.  241,  II  W.  R.  1023, 
8  L.  T.  768, 10  H.  L.  Cas.  473.— Considered 
IN  Manchester,  S.  &  L.  R.  Co.  v.  Brown,  L. 
R.  8  App.  Cas.  703,  53  L.  J.  Q.  B.  124,  50  L. 
T.  281,  32  W.  R.  207.  Followed  in  Ash- 
enden  v.  London,  B.  &  S.  C.  R.  Co.,  L.  R.  5 
Ex.  D.  190,  42  L.  T.  586,  28  W.  R.  51 1,  44  J. 
P.  203. 

Where  there  is  no  special  contract  as  to 
the  liability  of  a  common  carrier  of  prop- 
erty, he  is  responsible  for  all  loss  or  damage 
except  that  which  is  caused  by  the  act  of 
God  or  the  public  enemy.  He  cannot  limit 
this  liability  by  notice,  even  if  it  be  brought 
to  the  knowledge  of  the  owner.  But  com- 
mon carriers  may  limit  their  liability  by  an 

*  As  to  right  of  carriers  to  limit  liability  by 
notice  or  special  contract,  see  notes,  32  Am.  Dec. 
468;  42  /(/.  4q8.  See  also,  Carriage  of  Mer- 
chandise, 420-426. 

Common  law  liability  of  carriers  of  goods 
may  be  limited  by  general  notice,  see  note,  5 
Am.  St.  Rep.  720. 

Right  of  common  carriers  to  limit  liability  by 
printed  words  or  notices  on  tickets,  checks,  etc., 
see  note,  5  Am.  St.  Rep.  719. 

Notice,  etc.,  restricting  liability  of  carriers  of 
passengers  for  torts  or  negligence,  see  note,  5 
Am.  St.  Rep.  728.  See  also.  Carriage  of 
Passengers,  330-341;  Tickets  and  Fares, 
14-21. 


express  agreement  with  the  owner.  Dorr 
V.  New  Jersey  Steam  Xav.  Co.,  1 1  A'.  Y,  485. 
—  Following  Parsons  v.  Monteath,  13 
Bari).  353;  Moore  v.  Evans,  14  Barb.  524. 
Overruling  Gould  v.  Hill,  2  Hill  623.— 
Applied  in  Steiger  -•.'.  Erie  R.  Co..  5  Hun 
345.  Followed  in  Blossom  v.  Dodd,  43 
N.  Y.  264.  Reviewed  in  Witting  v.  St. 
Louis  &  S.  F.  R.  Co.,  28  Mo.  App.  103; 
London  &  L.  Fire  Ins.  Co.  v.  Rome,  W.  & 
O.  R.  Co.,  23  N.  Y.  Supp.  231,  68  Hun  59S, 
52  N.  Y.  S.  R.  581. 

A  common  carrier  may,  by  his  express 
contract,  limit  his  common  law  responsibil- 
ity ;  but  a  mere  general  notice,  when 
brought  to  the  knowledge  of  the  owner  (jf 
the  goods  carried,  will  not  have  that  effect 
unless  there  is  very  clear  proof  that  the 
owner  expressly  assented  to  that,  as  forming 
the  basis  of  the  contract.  But  a  carrier 
may,  by  general  notice  brought  to  the 
knowledge  of  the  owner  of  the  goods,  limit 
his  responsibility  for  carrying  certain  com- 
modities beyond  the  line  of  his  general 
business,  or  he  may  make  his  responsibility 
depend  upon  certain  reasonable  conditions. 
Farmers'  6-  M.  Bank  v.  Champlain  Transp. 
Co.,  23  Vt.  186. 

But  such  notice  is  not  effectual  to  limit 
the  time,  after  the  arrival  of  the  goods  at 
their  place  of  destination,  in  which  the  car- 
rier would  continue  in  the  relation  of  com- 
mon carrier.  Blumenthal  v.  Brainerd,  38 
Vt.  402. 

A  railway  company  cannot,  by  their 
printed  notices,  receipts,  and  regulations, 
even  when  brought  to  the  notice  of  the 
shipper,  so  limit  their  responsibility  that 
they  can  carry  freights  for  a  reward,  and,  at 
the  same  time,  not  be  liable  for  a  failure  to 
exercise  ordinary  care  in  the  business. 
Mann  v.  Birchard,  40  Vt.  326. 

12.  A  (general  notice  not  NUfHcient. 
— The  rule  is  now  well  settled  that  a  com- 
mon carrier  may  limit  his  common  law 
liability,  in  certain  particulars,  and  to  a  cer- 
tain extent,  by  express  contract  with  the 
owner  or  shipper  of  goods.  But  carriers 
cannot  limit  their  liability  by  a  mere  notice, 
even  though  the  notice  is  brought  to  the 
knowledge  of  the  person  whose  property 
they  carry.  It  must  be  by  express  contract. 
West  cot t  v.  Fargo,  63  Barb.  (N.  K.)  349. 
New  Jersey  Steam  Nav.  Co.  v.  Merchants' 
Bank, 6 Hou'.  (U.S.)  344.  Western  Transp. 
Co.  V.  Newhall,  24  ///.  466.— Approved  in 
Brown  v.  Adams  Exp.  Co.,  15  W.  Va.  812. 


LIMITATIONS   OF   LIABILITY,  13,  14. 


33r 


Distinguished  in  Illinois  C.  R.  Co.  v. 
Read,  37  111.  484. —A/od:/c-  (S-*  O.  A'.  Co.  v. 
Wdttier,  49  il/m.  725.  Mosis  v.  Boston  &* 
M.  K.  Co  ,  24  A'.//.  71.— Following  Ben- 
net  7'.  Dutton,  10  N.  H.  4S7.  Nor  Foi,- 
LOWiNCi  Saj^er  f.  Portsmouth,  S.  &  P.  &  E. 
K.  Co.,  31  Me.  228.— Followed  in  Moses 
V.  Boston  &  M.  R.  Co.,  32  N.  H.  ^2T,.—  Most's 
V.  Boston  &*  M.  K.  <•'• ,  32  A'.  H.  523. — 
Following  Moses  v.  Boston  &  M.  R.  Co., 
24  N.  H.  71. — Slocum  V.  Fairchild,  7  ///// 
(.v.  Y.)  292.— Reviewing  HoUisicr  v. 
Nowlen,  19  Wend.  247  ;  Cole  v.  Goodwin, 
19  Wend.  251. — Dory  v.  Xe70  Jersey  Stiain 
Xitv.  Co.,  4  Sandf.  {N.  \ '.)  1 36.  Bro%vn  v. 
Adams  E.\p.  Co.,  15  W.  I'a.  812. — APPROV- 
ING Western  Transp.  Co.  ?>.  Newhall,  24 
111.  466;  Kimball  v.  Rutland  &  B.  R.  Co.,  26 
V't.  247;  Dorrt/.  New  Jersey  Steam  Nav.  Co., 
4  Sandf.  136.  Disapproving  Walker  v. 
York  &  N.  M.  R.  Co..  2  El.  &  Bl.  (75  E.  C. 
L.)  750;  Leesoii  v.  Holt,  i  Stark.  186  (2  E. 
C.  L.  77) ;  Walker  v.  Jackson,  10  M.  &  W. 
173.  Reviewing  Maslin  v.  Baltimore  &  O. 
R.  Co.,  14  W.  Va.  180. 

Limitations  of  a  carrier's  liability  can 
only  be  made  by  express  contract  before  a 
shipment  is  made;  and  wliere  no  written 
agreement  is  entered  into,  such  limitations 
cannot  be  established  by  proving  that  the 
shipment  was  undcrsuchcondiiion.s, and  pre- 
viiius  knowledge  on  the  part  of  the  shipper, 
as  to  relieving  the  carrier.  The  liability  of 
a  carrier  cannot  be  restricted  by  any  vague 
or  iticonclnsive  evidence.  AVdV/  v.  Far^o, 
\Silv.  .Suf,.  Ct.  143,  7  A'.  Y.  Slip/).  185. 

18.  Notice  not  broii{;lit  to  sliip- 
por's  kiiowliMlffo.  —  The  common  law 
liability  of  a  carrier  mav  be  limited  by  ex- 
press notice,  except  as  to  such  losses  as  re- 
sult from  misconduct  or  negligence ;  but  it 
must  appear  that  the  shipper  had  knowl- 
erifje  of  the  notice.  Sa^er  v.  Portsmouth,  S, 
&'  P.  &^  K.  R.  Co.,  31  Me.  228.— Approved 
l\  Welsh  V.  Pittsburg,  Ft.  W.  &  C.  R. 
Co.,  10  Ohio  St.  65.  Not  followed  in 
Shrivcr  v.  Sioux  City  &  St.  P.  R.  Co.,  24 
Minn.  506;  Moses  v.  Boston  &  M.  R.  Co., 
24  N.  H.  71. 

A  carrier's  liability  cannot  be  limited  by 
contract,  unless  it  appears  that  the  shipper 
assented  thereto;  but  it  need  not  be  shown 
by  evidence  of  express  consent.  It  might 
be  established  by  proof  of  previous  dealings 
between  the  parties.  Lake  Shore  &*  Af.  S. 
R.  Co.  V.  Davis,  16  ///.  App.  425. 

An  advertisement  in  a  newspaper  is  not 
0  D.  R.  D.— 22 


admissible  in  evidence  as  a  limitation  of  a 
carrier's  common  law  liability,  unless  it  is 
first  shown  that  tiie  plaintiff  was  in  the 
habit  of  reading  that  paper.  Lceson  v.  Holt, 
I  Stark.  186. 

The  prima  facie  common  law  liability  of 
a  carrier  is  not  conclusively  rebutted  by 
showing  that  a  notice  limiting  liability  was 
painted  on  a  board  and  hung  up  at  a  station, 
where  it  is  shown  that  the  [larty  sought  to 
be  bound  thereby  did  not  know  of  such 
notice.  Great  Western  R.  Co.  v.  Goodman, 
12  C.  B.  313,  \C-,Jur.  862,  21  L.J.  C.  P.  197. 
14.  Notice  iiKlorscd  on  receipt  or 
bill  of  lading.— No  excuse  will  avail  a 
common  carrier  for  loss  of  goods  delivered 
to  it  for  transportation,  except  the  act  of 
God  or  the  public  enemy,  and  he  cannot 
limit  his  liability  by  any  notice  or  entry 
upon  receipts  for  goods  or  tickets  sold,  but 
may  by  an  independent  express  contract. 
Southern  Exp.  Co.  v.  Pur  cell,  37  Ga.  103. 
Furcell  v.  Southern  E.xfi.  Co.,  34  Ga.  315. 
Chieaj^^o  «S~»  A'.  W.  R.  Co.  v.  Chapman,  42 
Am.  &*  Eng.  R.  Cas.  392,  133  ///.  96,  24  A'. 
E.  Rep.  417;  affirming  30  ///.  App.  504. 
Michigan  C.  R.  Co.  v.  Hale,  6  Mich.  243. — 
QutriED  IN  Adams  Exp.  Co.  v.  Haynes,  42 
111.  &().—  Blossom  V.  Dodd,  43  A'.  }'.  264. — 
Disapproving  Hopkins  v.  Westcott,  6 
Blatchf.  (U.  S.)  64.  Following  Dorr  v. 
New  Jersey  Steam  Nav.  Co.,  1 1  N.  Y.  485 ; 
Bissell  V.  New  York  C.  R.  Co.,  25  N.  Y.  442  ; 
French  7/.  Buffalo,  N.  Y.  &  E.  R.  Co.,  4 
Keyes  (N.  Y.)  108.  —  Dlstinguished  in 
Belger  7>.  Dinsmore,  51  N.  Y.  166;  Elmore 
7>.  Sands,  54  N.  Y.  512;  Kirkland  v.  Dins- 
more,  62  N.  Y.  171.  Followed  in  Raw- 
son  7'.  Pennsylvania  R.  Co.,  48  N.  Y.  212; 
Madan  v.  Sherard,  73  N.  Y.  329;  Madan  7/. 
Shcrrard.  10  J.  &  S.  (N.  Y.)  353.  Recon- 
ciled in  Steers  v.  Liverpool,  N.  Y.  &  P. 
Steamship  Co.,  57  N.  Y.  i.  Reviewed  i\ 
London  &  L.  Fire  Ins.  Co.  7'.  Rome,  W.  & 
O.  R.  Co.,  23  N.  Y.  Supp.  231. — Sunderland 
v.  Westcott,  2  Sweeny  {N.  Y.)  260,  40  How. 
Pr.  468. 

Conditions  printed  on  the  back  of  a 
freight  receipt,  touching  the  carrier's  liabil- 
ity, are  but  a  notice  and  n^i  a  part  of  the 
contract;  and  where  the  contract  is  sued 
on,  such  conditions  need  not  be  set  out  in 
the  declaration.  Western  Transp.  Co.  v. 
Xe^vhall,  24  Ill.^d^. — Ptr.iiNGUisHiNG  Bar- 
nard V.  Cushing,  4  Mete.  (Mass.)  233. 

If  a  shipper  takes  a  receipt  for  his  goods 
from  a  common  carrier  which  contains  con- 


I 


§ 


338 


LIMITATIONS   OF   LIABILITY,  15-17. 


m 


■'ii. 


>''M 


I 


1 


ditions  limiting  the  liability  of  the  carrier, 
with  a  full  unders.andiiig  of  such  condi- 
tions, and  assents  to  them,  it  becomes  his 
contract  as  fully  as  if  he  iiad  signed  it,  and 
lie  will  be  bound  by  the  conditions;  but 
whether  the  siiipper  has  consented  to  such 
■  conditions  is  a  question  of  fact  for  tlie  jury. 
.Inc/ior  Line  v.  Duter,  68  ///.  369.— Fol- 
lowing Adams  Exp.  Co.  71.  Haynes,  42  III. 
89;  Illinois  C.  R.  Co.  v.  Frankenberg,  54 
III.  88. 

Where  a  receipt  is  given  by  a  carrier  for 
goods,  containing  a  clause  limiting  his  lia- 
bility, whether  such  receipt  is  to  be  re- 
garded as  a  contract  depends  upon  the 
question  whether  the  owner  of  the  goods, 
in  taking  the  receipt,  knew  its  contents,  or 
is  to  be  presumed  to  have  known  them.  If 
he  knew,  or  is  presumed  to  liave  known 
from  the  nature  of  the  transaction,  the  law 
infers  his  assent  and  makes  it  the  contract 
between  the  parties.  Otherwise  there  is  no 
meeting  of  minds  and  no  express  contract. 
U'cstcott  v.  Favi^o,  63  Barb.  (N.  Y.)  349. 
Sunderland  v.  Westcott,  2  Sweeny  (A^.  Y.) 
260,  40  How.  Pr.  468. 

Conditions  indorsed  on  a  way  bill  by  a 
railroad,  limiting  its  liability,  which  are 
known  to  the  consignor,  who  is  agent  of 
the  consignee,  the  real  owner,  are  binding 
on  the  consignee.  Armstrong  v.  Grand 
Trunk  R.  Co.,  i£  Ww  Briin.  445. 

15.  Cniiiiut  voluntarily  assume  po- 
sition of  ordinary  l>ailee. — A  common 
carrier  may,  by  contract,  restrict  his  liabil- 
ity as  an  insurer,  but  he  will  not  be  permitted 
to  assume  the  position  of  an  ordinary  bailee; 
the  law  still  holds  him  to  a  higher  degree  of 
care  than  that  required  of  a  private  carrier, 
and  the  rule  as  to  the  burden  of  proof  still 
prevails;  and  if  the  goods  are  lost,  whatever 
may  have  been  the  agreement  with  the  ship- 
per, the  law  will  presume  that  they  were 
lost  through  the  fauli  of  the  carrier,  unless 
the  carrier  show  '.he  contrary.  Kirby  v. 
Adams  E.vp.  Co.,  2  Afo.  A  pp.  369.  Drew  v. 
Ked  Line  Transit  Co.,  3  Mo.  App.  495. 

10.  Effect  of  usajfe  and  custom.— 
Neither  usage  nor  custom,  though  known 
to  the  shipper,  which  he  has  not  clearly 
assented  to  as  a  condition  of  the  contract 
of  shipment,  can  be  set  up  to  absolve  a 
carrier  from  his  common  law  liability. 
Pittsburgh,  C.  &•  St.  L.  R.  Co.  v.  Barrett,  3 
Am.  <S-  Eng  R.  Cas.  256,  36  Ohio  St.  448. 

A  carrier  may  limit  liability  for  loss  or 
injury  by  special  contract,  except  for  gross 


negligence  or  wilful  misfeasance;  but  such 
liability  cannot  be  limited  by  merely  proving 
a  usage  in  giving  bills  of  lading  containing 
limitations.     Illinois  C.  R.  Co.  v.  Sniyser,  38 

///.  354. 

Where  a  company  has  for  ten  years  post- 
ed notices,  and  inserted  them  in  its  bills  of 
lading,  containing  certain  regulations,  and 
plaintitl  has  been  a  common  ship|)er  and 
fully  aware  of  such  regulations,  the  com- 
pany cannot  establish  a  usage  conflicting 
therewith,  where  the  statute  of  the  state 
prevents  carriers  from  limiting  their  liability. 
McMillan  v.  Michigan  S.  &*  N.  I.  R.  Co., 
16  Mich.  79. 

The  duty  and  liability  of  a  common  car- 
rier in  regard  to  the  delivery  of  goods 
intrusted  to  him  may  be  modified  by  the 
particular  usage  of  the  carrier;  and  if  he 
rely  upon  and  prove  such  usage  as  a  defense 
in  an  action  brought  against  him  by  the 
consignor  of  goods,  it  is  not  necessary  that 
he  sliould  prove  th.-t  the  consignor  had 
knowledge  of  such  usage.  Farmers'  &*  M. 
Bank\.  Champlain  Transp.  Co.,  18  Vt,  131. 
—  Approving  Van  Santvoord  v.  St.  John,  6 
Hill  (N.  Y.)  157. — Approved  IN  Coates  z/. 
United  States  Exp.  Co.,  45  Mo.  238 ;  Kyle 
V.  Laurens  R.  Co.,  10  Rich.  (So.  Car.)  382. 

1 7.  Compellint;  a  waiver  of  com- 
pany's liakilitj-  as  a  condition  prece- 
dent to  receiving  freiglit.*— A  com- 
mon carrier  has  no  right  to  demand  of  a 
shipper  a  waiver  of  his  right  as  a  condition 
precedent  to  receiving  freight.  Missouri 
Pac.  R.  Co.  V.  Fagan,  35  Am.  «S>»  Eng.  R.  Cas. 
666,  72   Tex.  127,  9  S.  W.  Rep.  749,  2  L.  R. 

A.7S- 

The  carrier  must  hold  himself  in  readi- 
ness to  ship  with  common  law  responsibility, 
and  must  offer  to  shippers  a  reasonable  and 
bona  fide  alternative  between  that  mode  of 
shipment  and  the  one  with  limited  responsi- 
bility. Louis7>ille  &*  N.  R.  Co.  v.  Gilbert, 
42  Am.  &*  Eng.  R.  Cas.  372,  88  Tenn.  430, 
12  S.  W.  Rep.  1018,  7  L.  R.  A.  162. 

A  ^arrier  cannot  by  special  contract  limit 
its  common  law  liability  for  losses  not  occa- 
sioned by  its  negligence  where  it  does  not 
afford  the  shipper  an  opportunity  to  con- 
tract for  the  service  required  without  such 
restriction ;  and  it  is  immaterial  that  the 
shipper  knowingly  accepted  a  bill  of  lad- 

*  Stipulation  which  companies  may  not  extort 
from  shippers,  and  effect  of,  if  extorted,  see 
note,  13  Am.  St.  Rep.  783. 


LIMITATIONS   OF   LIABILITY,  18-20. 


339 


ing  containing  sucii  restriction,  without 
demanding  a  different  contract,  if  he  knew 
that  the  carrier's  agents  had  no  authority 
to  make  any  other  contract  with  liim. 
Little  Rock  &*  Ft.  S.  R.  Co.  v.  Cravens,  57 
Ark.  112.— Followed  in  St.  Louis,  I.  M.  & 
S.  K.  Co.  V.  Spann,  57  Ark.  127. 

18.  For  destruction  by  Are. —  A 
common  carrier  may  by  special  contract 
avoid  or  limit  his  liability  at  common  law 
as  an  insurer  of  property  intrusted  to  him 
against  loss  or  damage  by  fire  occurring 
witiiout  his  own  fault.  Hoadley\.  Northern 
Transp.  Co.  ,115  Mass.  304.  Rand  v,  Aler- 
,:hants'  Dispatch  Transp.  Co.,  59  N.  H.  363. 

The  carrier  may  by  special  contract 
limit  his  liability  for  loss  to  his  own  line; 
for  loss  by  fire  without  his  fault;  and  for 
other  loss  not  attributable  to  negligence ; 
and  may  require  the  value  of  the  goods  to 
be  fixed  by  the  shipper.  He  cannot,  even 
by  express  contract,  exempt  himself  from 
liability  for  gross  negligence,  or  wilful  mis- 
conduct of  himself  or  his  servants,  nor  can 
he  limit  his  liability  in  amount  in  such  cases. 
Chicago  ^'N.  IV.  R.  Co.  v.  Chapman,  42  Am. 
&•  Eng.  R.  Cas.  392.  133  ///.  96,  24  N.E.Rep. 
417  ;  affirming  30  ///.  App.  504. 

10.  For  losses  occasioned  by  delay. 
—A  contract  by  which  a  company  under- 
takes to  relieve  itself  of  all  liability  for  dam- 
ages occasioned  by  any  delay  in  transporta- 
tion, and  to  impose  them  upon  the  shipper, 
will  be  effectual  to  protect  the  company 
only  against  the  consequences  of  delays  not 
caused  by  its  own  negligence.  Dawson  v. 
Chicago  6-  A.  R.  Co.,  18  Am.  <S-  Eng.  R. 
Cas.  521,  79  Mo.  296. 

To  relieve  the  carrier  from  the  conse- 
quences of  delay  occasioned  by  negligence, 
such  an  exception  must  be  expressly  stated 
ill  the  contract.  Jennings  v.  Grand  Trunk 
R.  G;.,49  Am.  6-  Eng.  R.  Cas.  98,  127  A^.  V. 
438.  28  N.  E.  Rep.  394,  40  A^.  V.S.R.iiS; 
affirming  52  Hun  227,  23  N.  Y.  S.  R.  15,  5 
A'.  V.  Supp.  140. 

Where  a  shipper  agrees  to  assume  all 
risks  of  loss  or  injury  from  delays  in  trans- 
portation, this  relieves  the  company  of  lia: 
bility  for  a  loss  caused  by  a  delay  occa- 
sioned by  an  obstruction  on  another  road, 
which  suddenly  diverts  business  to  defend- 
ant's road.  Dawson  v.  Chicago  &*  A.  R. 
Co.,  18  Am.&'  Eng.  R.  Cas.  521,  79  Mo. 
296. 

A  condition  that  the  carrier  shall  not  be 
liable  for  loss  of  market,  or  other  delay 


arising  from  detention,  is  reasonable.  White 
V.  Great  We.itern  R.  Co.,  2  C.  B.  N.  S.  7,  26 
L.J.  C.P.  158. 

A  condition  that  the  company  shall  not 
be  liable  for  delay,  however  caused,  is  un- 
reasonable. Kirby  v.  Great  -Western  R.  Co., 
18  Z.  T.  658. 

Where  a  contract  of  carriage  stipulates 
that  the  company  shall  only  be  liable  for 
wilful  misconduct,  such  misconduct  is  not 
shown  by  the  fact  that  the  van  to  be  carried 
was  loaded  on  a  truck  too  high  to  allow  of 
its  passing  under  the  gauge  uf  a  connecting 
line,  whereby  a  delay  was  occasioned.  Wcdb 
v.  Great  Western  R.  Co.,  26  W.  R.  i\i. 

A  fish  merchant  delivered  fish  to  a  rail- 
way company  to  carry  upon  a  signed  con- 
tract, relieving  the  company  as  to  all  fish 
delivered  by  him  "  from  all  liability  for  loss 
or  damage  by  delay  in  transit  or  from  wiiat- 
ever  other  cause  arising,"  in  consideration 
of  the  rates  being  one  fifth  lower  than 
where  no  such  undertaking  was  granted ; 
the  contract  to  endure  for  five  years.  The 
servants  of  the  company  accepted  the  fish, 
although  from  pressure  of  business  they 
could  not  carry  it  in  time  for  the  intended 
market,  and  the  fish  lost  the  market.  Held, 
that  upon  the  facts  the  merchant  had  a  bona 
fide  option  to  send  fish  at  a  reasonable  rate 
with  liability  on  the  company  as  common 
carriers,  or  at  the  lower  rate  upon  the  terms 
of  the  contract;  that  the  contract  was  in 
point  of  fact  just  and  reasonable  within 
section  7  of  the  Ry.  &  C.  Tr.  Act  1854,  and 
covered  the  delay ;  and  that  the  company 
were  not  liable  for  the  loss.  Manchester,  S. 
&*  L.  R.  Co.  V.  Brown,  8  App.  Cas.  703,  53 
L.  J.  Q.  B.  D.  124,  4  Ry.  &-  C.  T.  Cas. 
xviii. 

20.  Property  of  unusual  value.— 
A  condition  in  a  shipping  bill  that  the  car- 
rier will  not  be  responsible  for  loss  of  prop- 
erty of  the  kind  receipted  for,  unless  with 
the  property  when  delivered  for  transporta- 
tion was  also  delivered  a  memorandum  in 
writing,  stating  the  character  and  kind  of 
articles  and  their  value,  or  that  such  prop- 
erty will  only  be  taken  at  the  owner's  risk, 
does  not  relieve  the  carrier  from  liability 
for  his  own  negligent  acts.  Rathbone  v. 
New  York  C.  «&-  H.  R.  R.  Co.,  140  A'.  Y.  48, 
55  N.  Y.  S.  R.  306,  35  N.  E.  Rep.  418;  re- 
versing 52  A'^.  Y.  S.  R.  933,  mem.,  23  N.  Y. 
Supp.  1 148,  ?nem.,  69  Hun  617,  mem. 

Where  the  property  delivered  for  trans- 
portation is  of  unusual  and  extraordinary 


■I. 


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34U 


LIMITATIONS   OF   LIABILITY,  31,22. 


M 


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value,  a  condition  that  the  carrier  will  not 
)ic  responsible  for  loss  if  the  true  character 
uikI  value  of  the  articles  are  not  stated  and 
extra  freight  paid  will  operate  to  exempt 
the  carrier  from  liability  even  for  his  own 
negligence,  unless  he  was  informed  when  or 
before  the  goods  were  received  that  they 
were  of  such  special  and  unusual  value. 
Kathbone  v.  New  York  C.  &^  H.  R.  K.  Co., 
140  iV.  Y.  48.  55  N.  Y.  S.  R.  306,  35  N.  E. 
/\V;>.  418 ;  reversing  52  N.  Y.  S.  K.  933,  mem., 
23  .\'.  ]''.  Supp.  1 148,  mem.,  69  Hun  617,  mem. 
—  Following  Magnin  v.  Dinsmore,  62  N. 
Y.  35.  70  N.  Y.  410. 

31.  Stipulation  for  benefit  of  in- 
siirauce.'*' — A  carrier  can  provide  in  his 
contract  of  shipment  that  he  shall  have  the 
benefit  of  any  insurance  effected  upon  the 
goods  to  be  transported,  and  that  if  the 
owner  has  received  from  the  insurance 
company  the  amount  of  the  loss  he  will  be 
precluded  by  such  stipulation  from  recover- 
ing against  the  carrier.  Such  facts,  how- 
ever, the  carrier  must  show  to  avoid  liabil- 
ity. Gulf,  C.  &*  S.  F.  R.  Co.  V.  Zimmerman, 
81  Tex.  605,  17  5.  W.  Rep.  239. 

A  plea  that  the  goods  were  carried  on  a 
just  and  reasonable  condition,  assented  to  by 
the  sender,  that  the  company  should  not  be 
liable  for  loss  or  injury  unless  the  goods 
were  insured,  and  that  they  were  not  in- 
sured, is  a  plea  in  bar  to  the  whole  cause  of 
action  in  respectof  damage,  however  caused. 
reck  V.  North  Staffordshire  R.  Co.,  10  H.  L. 
Cas.  473,  9/ur.  N.  S.  914,  32  L.J.  Q.  B.  241, 
1 1  IV.  R.  1023,  8  L.  T.  768.— Considered 
IN  Manchester,  S.  &  L.  R.  Co.  v.  Brown,  L. 
R.  8  App.  Cas.  703,  53  L  J.  Q.  B.  124,  50 
L.  T.  281,  32  W.  R.  207.  Followed  in 
Ashenden  v.  London,  B.  &  S.  C.  R.  Co.,  L. 
R.  5  Ex.  D.  190,  42  L.  T.  586,  28  W.  R.  511, 
44  J.  P.  203. 

33.  Limiting  time  for  claiming 
<lamage8.t — A  carrier  may  provide  in  a 
shipping  contract  that  notice  of  any  claim 
for  damages  shall  be  given  within  a  pre- 
scribed time.  Such  a  provision  is  reason- 
able, and  is  not  a  limitation  upon  the  com- 
mon law  duty  of  a  carrier  safely  to  deliver 
property  received  for  shipment.     Wabask, 


*  See  also  Fire  Insurance,  13-15. 

f  Stipulations  for  notice  to  the  carrier  of  claim 
for  damages,  see  note,  30  Am.  &  Eno.  R.  Cas- 
56. 

Contracts  between  shipper  and  carrier  limit- 
ing time  for  bringing  suits,  validity  of,  see  note, 
3  L.  R.  A.  344. 


St.  L.  <&*  P.  R.  Co.  V.  Black,  1 1  ///.  App.  463. 
— Quoting  Rice  v.  Kansas  Pac.  R.  Co.,  63 
Mo.  314.  Reviewing  Lewis  v.  Great  West- 
ern R.  Co.,  5  H.  &  N.  867;  Wolf  V.  Western 
Union  Tel.  Co.,  62  Pa.  St.  83.— C'///hri,^^ 
(S-  A.  R.  Co.  V.  Siwms,  18  ///.  App.  68. 
Brown  v.  I  Wabash,  St.  L.  ^  P.  R.  Co.,  18 
Mo.  App.  568.— Following  Dawson  v.  St. 
Louis,  K.  C.  &  N.  R.  Co.,  76  Mo.  ii^.—Hhs/i 
berg  V.  Dinsmore,  I2  Daly  {N.  Y.)  429,  67 
How.  Pr.  103.— Applying  Smith  v.  Dins- 
more, 9  Daly  188. 

A  stipulation  in  a  bill  of  lading  that  all 
claims  for  damages  shall  be  made  at  tiie 
delivery  station  before  the  goods  are  taken 
away  is  reasonable,  and  may  be  enforced, 
except  as  to  such  injuries  as  are  latent  wlien 
the  goods  are  taken  up.  Capehart  v,  Sea- 
board &*  R.  R.  Co.,  77  A^.  Car.  355. 

A  notice  posted  up  in  a  railroad  depot 
requiring  all  claims  for  damages  to  be 
made  within  ten  days  of  the  time  when  the 
goods  reach  their  place  of  delivery  is  not  a 
usage,  but  a  mere  regulation, and,  being  un- 
reasonable, will  not  be  enforced.  Brurvii- 
ing  v.  Long  Island  R.  Co.,  2  Daly  {N.  1'.) 
117. 

A  shipping  contract  provided  that  a  ship- 
per should  sue  for  any  claim  for  damages 
within  sixty  days  or  be  barred.  A  claim  for 
damages  was  made,  and  forty-eight  days 
were  consumed  in  correspondence  in  a 
fruitless  attempt  to  settle  the  matter,  and 
he  failed  to  sue  during  the  remaining  twelve 
days.  Held,  that  the  condition  was  reason- 
able, and  an  action  brought  after  the  full 
sixty  days  had  run  was  barred.  Thompson 
V.  Chicago  &*  A.  R.  Co.,  22  Mo.  App.  321. 

The  contract  in  suit  contained,  amongst 
others, the  two  following  conditions:  No. 8, 
that  no  claim  in  respect  of  goods  would  be 
allowed  unless  made  within  three  days  after 
delivery,  and  No.  9,  that  all  goods  were 
received  subject  to  the  company's  general 
lien  both  for  carriage  thereof  and  all  other 
charges  against  the  customer.  Held,  that 
"goods"  in  these  conditions  meant  inani- 
mate, not  horses  or  cattle,  and  that  the 
conditions  were  reasonable ;  but  semble,  that 
they  did  not  properly  come  before  the  court 
for  decision  under  the  17  and  18  Vict.  c.  31,  § 
7,  which  only  deals  with  the  receiving,  for- 
warding, or  delivering  of  animals,  goods, 
and  things,  and  these  conditions  relate  to 
something  occurring  after  delivery.  Moore 
V.  Great  Northern  R.  Co.,  10  Ir.  L,  R.  %,  4 
Ry.  6*  C.  T.  Cas.  xx.     . 


I'f    ■   !    ■• 


'-?■.  rj 


LIMITATIONS   OF   LIABILITY,  23-27. 


841 


23.  Company  becomes  a  private 
carrier  for  hire.— The  carrier  may  by 
special  contract  restrict  his  common  law 
liability;  and  wiiere  this  is  done  his  rela- 
tions are  changed,  and  he  becomes  as  to 
tiiat  transaction  an  ordinary  bailee  and  pri- 
vate carrier  for  hire,  which  imposes  upon 
him  the  responsibility  of  exercising  ordi- 
nary care  in  the  transportation  of  property. 
french  v.  Buffalo  Sf  E.  R.  Co.,  2  Abb. 
App.  Dec.  {N.  r.)  r96,  4  Kcyes  108.— FoL- 
i.oWKH  IN  Blossom  V.  Dodd,  43  N.  Y.  264. 
Nor  FOLLOWED  IN  Shriver  v.  Sioux  City 
k  St.  P.  R.  Co.,  24  Minn.  106.— Lake  Shore 
Gr' .]/.  S.  K.  Co.  V.  Perkins,  25  Alic/i.  329, 
5  ,  /w.  Ry.  Hep.  249.  Mtyer  v.  Harnden's 
Exp.  Co.,  24  How.  Pr.  (N.  K.)  290. 

But  a  general  notice  to  the  public,  limit- 
ing his  obligations  as  a  common  carrier, 
will  afford  no  evidence  of  such  a  contract, 
even  if  the  existence  and  contents  of  such 
notice  are  brought  home  to  the  party.  Kim- 
balls.  Rutland  <&-  B.  R.  Co.,  26  Vt.  247.— 
Distinguishing  Hollister  v.  Nowlen,  19 
"'end.  (N.  Y.)  240;  Cole  v.  Goodwin,  19 
Wend.  272.  Quoting  Carr  v.  Lancashire  & 
Y.  K.  Co.,  14  Eng.  L.  &  Eq.  344.  Quoting 
AND  following  New  Jersey  Steam  Nav, 
Co.  V.  Merchants'  Bank,  '  How.  (U.  S.)  344. 
—Approved  in  Brown  v.  Adams  Exp.  Co., 
15  W.  Va.  812.  Followed  in  Blumenthal 
V.  Brainerd,  38  Vl.  402.  Quoted  in  Kansas 
Pac.  R.  Co.  V.  Nichols,  9  Kan.  235. 

24.  Company  becomes  an  insurer 
by  agreement.— By  a  contract  limiting  a 
carrier's  liability  he  becomes  an  insurer  by 
agreement,  and  according  to  its  terms.  If 
there  be  a  loss,  the  agreement  furnishes  the 
extent  of  liability,  unless  the  plaintiff  can 
show  that  the  loss  occurred  through  the 
wilfulness  or  negligence  of  the  carrier. 
Farnham  v.  Camden  &*  A.  R.  Co.,  55  Pa. 
^t.  53.— Approved  in  Atchison  &  N.  R. 
Co.  7^  Washburn,  5  Neb.  117. 

25.  Statutes  restrainiugr  power  to 
limit  liability.— A  contract  for  transpor- 
tation limiting  the  carrier's  liability  at  com- 
mon law,  in  consideration  for  which  the 
shipper  received  special  rates  and  a  pass 
over  the  road,  is  within  the  provisions  of 
Iowa  Code,  §  1308,  rendering  such  agree- 
ments void.  Brush  v.  Sabula,  A.  &*  D.  R. 
Co.,  43  Iowa  554,  14  Am.  Ry.  Rep.  479. 

The  intention  of  Miss.  Act  of  Dec.  9, 
'863,  is  to  prohibit  railroad  companies  in 
'he  stale  from  making  contracts  to  limit 
•heir  common  law  liability,  and  to  hold  them 


liable  as  common  carriers,  notwithstanding 
such  special  contracts.  Mobile  6^  O.  R. 
Co.  V.  Franks,  41  Miss.  494.  —  Quoting 
Southern  Exp.  Co.  v.  Moon,  39  Miss.  822. 

Under  the  section  of  the  Texas  constitu- 
tion relating  to  railroad  companies  and 
common  carriers,  the  power  of  the  legisla- 
ture to  vary  their  liability  from  that  which 
pertains  to  common  carriers  as  distinguished 
from  private  carriers  is  limited.  Missouri 
Pac.  R.  Co.  V.  Harris,  i  Tex.  App.  (Civ. 
Cas.)  730. 

20.  Statutory  restrictions  do  not 
apply  to  interstate  commerce.— Tex 
Rev.  St.  art.  278,  providing  that  common 
carriers  "within  this  state  shall  not  limit  or 
restrict  their  liability  as  it  exists  at  com- 
mon law,"  only  applies  to  carriers  who  carry 
on  business  in  the  state,  and  does  not  apply 
to  interstate  traffic.  Te.vas  <S>»  P.  R.  Co.  v. 
Davis,  2  Tex.  App.  (Civ.  Cas.)  156.  Mis- 
souri  Pac.  R.  Co.  v.  Sherwood,  55  Am.  Sr* 
Eng.  R.  Cas.  478,  84  Tex.  125,  19  5.  IV. 
Rep.  455. 

II.  STIPULATIONS  AGAINST  LIABILITT  FOB 
NEGLIGENCE.* 

27.  Stipulation  against  liability 
for  carriers'  ncf^ligence  is  void.f— At 

common  law  a  carrier  of  goods  is  charged 
as  an  insurer,  unless  the  loss  occur  through 
the  act  of  God  or  the  public  enemy.  This 
liability  may  be  limited  by  special  contract, 
but  a  carrier  cannot  contract  against  his 
own  negligence.  New  Jersey  Steam  Nav. 
Co.  v.  Merchants'  Bank,  6  How.  (U.  S.)  344. — 
Criticised  in  Lamb  v.  Camden  &  A.  R. 
&  T.  Co.,  2  Daly  (N,  Y.)  454.  Disapproved 
IN  Indianapolis,  P.  &  C.  R.  Co.  v.  Allen, 
31  Ind.  394.  Distinguished  in  Perkins  v. 
New  York  C.  R.  Co.,  24  N.  Y.  196.  Ex- 
plained IN  Michigan  S.  &  N.  I.  R.  Co, 
V.  Heaton,  37  Ind.  448.  Followed  in 
Phoenix  Ins.  Co.  v.  Erie  &  W,  Transp.  Co., 
10  Biss.  (U.  S.)  18;  Mynard  v.  Syracuse,  B. 
&  N.  Y.  R.  Co.,  71  N.  Y.  180;  Seller  v. 
Steamship  Pacific,  i  Oreg.  409;  Capehart  v. 
Seaboard  &  R.  R.  Co.,  81  N.  Car.  438. 
Quoted  in  Indiana  C.  R.  Co.  v.  Mundy,  21 

*  Power  of  common  carrier  to  contract  against 
liability  for  negligence,  see  note,  10  Am.  Rep. 
366. 

f  Exemption  from  liability  for  negligence,  see 
notes,  16  Am.  &  Eng.  R.  Cas.  149,  157  ;  26  Id. 
286. 

Carrier  cannot  exempt  himself  from  liability 
for  negligence,  see  note,  i  L.  R.  A.  500. 


I 


•^r^ 


•Mz 


LIMITATIONS   OF    LIABILITY,  27. 


m- 


Ind.  48;  '' cholas  v.  New  York  C.  &  H.  R. 
R.  Co..  9  .im.  &  Eng.  R.  Cas.  103,  89  N.  Y. 
370;  Dorr  V,  New  Jersey  Steam  Nav.  Co., 
4  Sandf.  (N.  Y.)  136;  Kimball  v.  Rutland  & 
B.  R.  Co..  26  Vt.  247  ;  Black  v.  Goodrich 
Transp.  Co.,  55  Wis.  319,  42  Am.  Rep.  713. 
Rkvikwkd  in  Smith  v.  New  York  C.  R. 
Co.,  24  N.  Y.  222;  Virginia  &  T.  R.  Co.  7/. 
Savers,  26  Gratt.  (Va.)  328.— A/ay  v.  Steam- 
slitp  Powhatan,  5  Fed,  Kep.  375.  Earnest  v. 
Sout/icrn  Exp.  Co.,  i  Woods  ( U.  S.)  573.  — 
Ai'i'RovED  IN  Hart  v.  Pennsylvania  R.  Co., 
112  U.  S.  331. — Steele  V.  Taiunsend,  37  Ala. 
247.  O/iio  &'  M.  R.  Co.  V.  Selby,  47  Ind.  471, 
8  .-/;«.  /i>.  AV/>.  177.  Louisville,  N.  A.&'C. 
A'.  Co.  V.  NicAolai,4  Ind.  App.  119,  30  A'. 
E.  Hep.  424.  Rose  v.  Z^«  Moines  Valley  li. 
Co.,  39  /<wfrt  246,  9  /i/«.  yv>'.  y\V/>.  7,  20  Am. 
Ay.  Kep.  326,  New  Orleans  Mut.  Ins.  Co. 
V.  A'ew  Orleans,  J.  (S*  G.  N.  A'.  Co.,  20  La. 
Ann.  302.  5aj^i?r  v.  Portsmouth,  S.  &•  P. 
(Sr-  /•;.  R.  Co.,  31  ^/^.  228.— Quoting  Cam- 
d(!ii  &  A.  R.  &  T.  Co.  V.  Burke,  13  Wend, 
(N.  V.)  bw.— Little  v.  Boston  &>  M.  R.  Co., 
66  A/e.  239.  Ortt  v.  Minneapolis  <&*  5/.  Z. 
yi'.  Co.,  36  J//««.  396.  31  A^.  W.  Rep.  519. 
Boehl  V.  Chicago,  Af.  &-  St.  P.  R.  Co.,  45 
Ant.  &^  Et}g.  R.  Cas.  351,  44  Minn.  191,  46 
A'.  W.  Rep.  333.  Southern  Exp.  Co.  v. 
Hunnicutt,  54  Aliss.  566.  Chicago,  St.  L.  &* 
A'.  O.  R.  Co.  V.  Abels,  2 1  Am.  &^  Eng.  R.  Cas. 
105.  60  Afiss.  1017. — Approved  in  Louis- 
ville &  N.  R.  Co.  V.  Wynn,  45  Am.  &  Eng. 
R.  Cas.  312,  88Tenn.  '320,  14  S.  W.  Rep. 
311.  Disapproved  in  Hart  v.  Pennsyl- 
vania R.  Co.,  112  U.  S.  HI.— Read  v.  St. 
Louis,  K.  C.  &»  A'.  R.  Co.,  60  AIo.  199.  9  Am. 
Ry.  Rep.  201.  — FOLLOWED  in  Pruitt  v. 
Hannibal  &  St.  J.  R.  Co..  62  Mo.  527.  Re, 
VIEWED  IN  Oxley  v.  St.  Louis.  K.  C.  &  N. 
R.  Co.,  65  Mo.  62^.— Ball  v.  Wabash,  St.  L. 
<S-  P.  R.  Co.,  25  Am.&^  Eng.  R.  Cas.  384.  83 
AIo.  574.  AlcFadden  v.  Afissouri  Pac.  R.  Co., 
30  Am.  &*  Eng.  R.  Cas.  17.  92  AIo.  343.  10 
West.  Rep.  372,  4  S.  W.  Rep.  689.  —  RE- 
VIEWED IN  Rogan  V.  Wabash  R.  Co.,  51 
Mo.  App.  665. — Nickey  v.  St.  Louis,  I.  Af. 
&*  S.  R.  Co.,  35  AIo.  Af'p.  79.  Leonard  v. 
Chicago  <S-  A.  R.  Cc,  54  AIo.  App.  293. 
Texas  &«•  P.  R.  Co.  v.  Davis,  2  Tex.  App. 
(Civ.  Cas.)  156.  Stoddard  v.  Long  Island 
R.  Co.,  5  Sandf.  (N.  y.)  180. — Approved  in 
New  York  C.  R.  Co.  v  Lock  wood,  17  Wall. 
(U.  S.)  3S7-—Capehar:  v.  Seaboard  &^  R.  R. 
Co.,  81  N.  Car.  438. — Following  Smith  v. 
North  Carolina  R.  Co.,  64  N.  Car.  235; 
Glenn  v.  Charlotte  &  S.  C.  R.  Co.,  63  N. 


Car.  510. — Pennsylvania  H.  Co.  v.  Ratordon, 
119  Pa.  St.  577,  12  Cent.  Rep.  177,  13  ////. 
Rep.  324,  21  W.  N.  C.  283.  Fairchild  v. 
Philadelphia,  W.  &•  B.  R.  Co.,  148 /'<!.  St. 
527,  24  Atl.  Rep.  79-  Buffalo.  P.  &*  W.  R. 
Co.  V.  O'Hara,  3  Pennyp.  (Pa.)  190.  Iloui- 
ion  <S-  T.  C.  R.  Co.  v.  Pari;  i  Tex.  App. 
(Civ.  Cas.)  142. 

The  contract  of  a  common  carrier  which 
stipulates  for  exemption  f-o  n  responsibility 
for  the  resuhs  of  his  negl'gence  is  void  as 
against  public  policy.  Gait  v.  Adams  Exp. 
Co.,  AlacArth.  &*  M.  (D.  C.)  124.— Ap- 
proving New  York  C.  R.  Co.  v.  Lock- 
wood,  17  Wall.  (U.  S.)  lyi.—Grey  v.  Alohile 
Trade  Co.,  55  Ala.  387.  South  Gf  N.  Ala.  R. 
Co.  V.  Henlein,  56  Ala.  368.  \()  Am.  Ry.  Rep. 
200.— DiSTlNGUi.SHED  IN  Georgia  Pac.  R. 
Co.  v.  Hughart,  90  Ala.  36. — Chicago,  B.^* 
Q.  R.  Co.  V.  Hale,  2  III.  App.  1 50.  Chicago, 
St.  L.  &'N.  O.  R.  Co.  V.  Moss,  21  Aw.  6* 
Eng.  R.  Cas.  98,  60  Miss.  1003. — FOLLOW- 
ING Whitcsides  v.  Thurlkill,  20  Miss.  599; 
Southern  Exp.  Co.  v.  Moon.  39  Miss.  822; 
Mobile  &  O.  R.  Co.  v.  Weiner,  49  Miss. 
725;  New  Orleans.  St.  L.  &  C.  R.  Co.  v. 
Faler,  58  Miss,  git.— Dorr  v.  A'eiv  Jersey 
Steam  Nav.  Co.,  4  Sandf.  (N.  K)  136.— Ap- 
proved IN  Brown  v.  Adams  Exp.  Co..  15 
W.  Va.  812.  Quoted  in  Louisville  &  N. 
R.  Co.  v.  Brownlee.  14  Bush  (Ky.)  590.  — 
Johnson  v.  Richmond  &-  D.  R.  Co.,  86  Va. 
975,  II  S.  E.  Rep.  829. 

The  ruling  of  the  supreme  court  of  the 
United  States  has  been  uniformly  ajjainst 
the  validity  of  all  contracts  to  exempt  a 
common  carrier  from  liability  for  loss  result- 
ing from  any  negligence.  The  earlier  Eng- 
lish cases  were  in  entire  accord  with  the 
decisions  of  the  supreme  court  of  the 
United  States.  But  the  later  decisions. 
made  between  1832  and  1854.  hold  the  op- 
posite doctrine.  Ohio  &*  AI.  R.  Co.  v.  Selby, 
47  Ind.  471.  8  Am.  Ry.  Rep.  177. 

The  right  of  a  earner  to  stipulate  for 
exemption  f.-om  liability  for  negligence  is 
not  a  local  question,  upon  which  the  deci- 
sion of  a  siote  court  n)ust  control ;  but  the 
question  is  a  matter  of  general  law,  upon 
which  the  federal  courts  will  exercise  their 
own  judgment,  even  where  their  jurisdic- 
tion attaches  only  by  reason  of  citizenship 
of  the  parties,  and  the  contract  is  made  and 
performed  within  the  state.  Eells  v.  .S7. 
Louis,  K.  6-  A^.  W.  R.  Co.,  52  Fed.  Rep.  903. 

Where  a  carrier  enters  into  a  special 
contract  under  seal,  attempting  to  limit  the 


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LIMITATIONS   OF   LIABILITY,  28. 


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carrier  against  all  loss,  and  an  agent  gives  a 
shipping  receipt  which  is  not  under  seal, 
the  special  contract  will  be  deemed  the  one 
under  which  the  goods  are  carried,  or  the 
two  treated  as  one  contract,  so  that  both 
will  be  tainted  with  the  illegality  of  the 
provision  of  the  special  contract,  which 
attempts  to  release  the  carrier  from  all  lia- 
bility. Woodburn  v.  Cincinnati,  N.  O.  &* 
T.  J'.K.  Co.,  42  Am.  &•  Eng.  K.  Cas,  514, 
40  J-'eii.  Rep.  731.— Quoting  In  man  v. 
South  Carolina  R.  Co.,  129  U.  S.  139,  9  Sup. 
Ci.  Kep.  249;  Hart  v.  Pennsylvania  R.  Co., 
112  U.  S.  340,  5  Sup.  Ct.  Rep.  151  ;  Liver- 
pool &  G.  W.  Steam  Co.  v.  Phenix  Ins. 
Co.,  129  U.  S.  441,  9  Sup.  Ct.  Rep.  469. 

A  special  contract  for  passage  which  in 
terms  exempts  the  carrier  from  liability  for 
loss  uf  baggage  occasioned  by  the  negli- 
gence of  the  carrier's  servants  does  not 
necessarily  exempt  the  carrier  from  loss  oc- 
curring tlirougii  its  own  negligence.  Wein- 
berg V.  National  Stcam-Ship  Co.,  8  N.  Y, 
Supp.  195. 

28.  Stipulation  against  liability 
for  negligence  of  carrier  or  employes 
is  void.* — It  is  witiiin  the  power  of  a  com- 
mon carrier  to  limit  his  common  law  liabil- 
ity, but  he  cannot  lawfully  stipulate  for 
exemption  from  responsibility  for  the  mis- 
conduct or  negligence  of  himself  or  his 
servants.  Pluvnix  Ins.  Co.  v.  Erie  &*  W. 
Transp.Co.,\o  niss.(U.  S.')  18.— FoLLOW- 
INO  New  Jersey  Steam  Nav.  Co.  v.  Mer- 
cliants'  Bank,  6  How.  (U.  S.)  344 ;  York 
Mfii.  Co.  V.  Illinois  C.  R.  Co.,  3  Wall.  107  ; 
Michigan  C.  R.  Co.  v.  Mineral  Springs  Mfg. 
Co.,  16  Wall.  318;  Bank  of  Ky.  v.  Adams 
Exp.  Co..  93  U.  S.  174  ;  New  York  C.  R.Co. 
V.  Lockwood,  17  Wall,  ^tp.— Little  Rock, 
M.  R.  <S-  T.  R.  Co.  v.  Talbot.  47  Ark.  97,  14 
S.  W.  Rep.  471.— Quoting  Little  Rock,  M. 
R.  &T.  R.  Co.  V.  Harper,  44  Ark.  208. — 
Louisville  Or*  N.  R.  Co.  v.  0,h-n.  80  Ala.  38. 
—  Rkvikwkd  in  Louisville  &  N.  R.  Co.  z/. 
ShcrnKl,  84  Ala.  17S,  4  So.  Rc|*.  29. — Louis- 
vilh:  X.  A.  &^  C.  R.  Co.  V.  Junior ,  126  Iml. 
1 26,  25  ,V.  E.  Rep.  869.  n 'iilusli.  St.  L.  &>  P. 
A',  to.  V.  /Hack,  1 1  ///.  App.  465.  Evansville 
^r^  C.  R.  Co.  v.  Young,  28  Ind.  516.  Kansas 
City.  .St.  J.  6^  C.  B.  R.  Co.  v.  Simpson,  16  Am. 
(1~  R/ig.  A'.  Cas.  1 58,  30  A'an.  645.  46  Am. 
Rep.  104, 2  Pac.  Rep.  821.— Followinc^,  New 


Carrier  cannot  stipulate  for  exemption  from 
liability  for  negligence  of  itself,  its  servants  or 
agents,  see  note,  6  L.  R.  A.  854. 


York  C.  R.  Co.  v.  Lockwood,  17  Wall.  357. 
Quoting  Levering  v.  Union  T.  &  I.  Co., 
42  Mo.  88.— Al'i'ROVKU  in  Louisville  &  N. 
R.  Co.  V.  Wynn.  45  .'\m.  &  Eng.  R.  Cas.  312, 
88  Tenn.  320,  14  S.  W.  Rep.  311.— C////W- 
ensoH  v.  American  E.vp.  Co.,  1$  Minn.  270 
{Gil.  208).  Durgin  v.  American  Exp.  Co., 
(N.  //.)  45  Am.  1^  Eng.  R.  Cas.  325,  20  At/. 
Rep.  328.  United  States  Exp.  Co.  v.  Uackman, 
28  OliioSt.  144.— Rkviewing  New  York  C. 
R.Co.  V.  Lockwood,  17  Wall.  ■^n.—Ballou 
V.  Earle,  48  Am.  &*  Eng.  R.  Cas.  31.  17  R. 
L  441,  22  Atl.  Rep.  1 1 13.  Missouri  Pac.  R. 
Co.  v.  Harris,  28  Am.  6^  Eng.  R.  Cas.  107 
67  Tex.  166,  2  S.  W.  Rep.  574.  Missouri 
Pac.  R.  Co.  v.  Harris,  i  Tex.  App.  (Civ. 
Cas.)  730.  Mas/in  v.  lia/timore  &*  O.  R.  Co., 
14  W.  Va.  180,— Overruling  Baltimore  & 
O.  R.  Co.  V.  Rathbone,  i  W.  Va.  87.— Fol- 
lowed IN  Zouch  V.  Chesapeake  &  O.  R. 
Co.,  36  W.  Va.  524.  Reviewed  in  lirown 
V.  Adams  Exp.  Co.,  15  W.  Va.  812. — Brown 
v.  Adams  E.vp.  Co.,  15  IV.  Va.  812. 

Public  policy  and  every  consideration  of 
right  and  justice  forbid  that  a  common 
carrier  should  be  allowed  to  stipulate  for 
exemption  from  liability  for  losses  or  inju- 
ries occurring  through  tlie  want  of  his  own 
skill  or  diligence,  or  that  of  the  servants  or 
agents  he  may  employ,  or  through  his  or 
their  wilful  default  or  tort,  .^liabama  G.  S. 
R.  Co.  v.  Litt/e,  12  Am.&^  Eng.R.  Cas.  yj,  71 
A/a.  61 1.— Not  following  Magnin  7a  Dins- 
more,  70  N.  Y,  410;  New  York  C.  R.Co.  v. 
Lockwood,  17  Wall. (U.S.)  357.— Approvkd 
IN  Georgia  Pac.  R.  Co.  v.  Hughart,  90  Ala. 
36  ;  Louisville  &  N.  R.  Co.  v.  Wynn,  45  .\m. 
&  Eng.  R.  Cas.  312,  88  Tenn.  320,  14  S. 
W.  Rep.  211.— Ta}'/or  v.  Litt/e  Rock,  M.  R. 
«S-  T.  R.  Co.,  18  .'/;;/.  &*  Eng.  R.  Cas.  590.  39 
Ark.  148.  Litt/e  Rock,  M.R.  ■Z-^  T.  R.  Co.  v. 
Ta/bot,  18  Am.  6-  Eng.  R.  Cas.  59S,  35  .Irk. 

523- 

An  incorporated  company  is  a  common 
carrier  as  to  all  property  within  the  scope 
of  its  chartered  powers,  and  it  cannot  by 
special  agreement  divest  itself  of  such  char- 
acter, and  therefore  it  is  liable  for  the  neg- 
ligence of  its  servants.  Atc/tison  &^  A.  R. 
Co.  v.  Was/tburn,  5  A'eb.  1 17.— APPROV- 
ING Farnham  v.  Camden  &  A.  R.  Co.,  55 
Pa.  St.  62 ;  Pennsylvania  R.  Co.  v.  Hen- 
derson, 51  Pa.  St,  315;  Davidson  v.  Gra- 
ham, 2  Ohio  St,  139;  Welsh  v.  Pittsburg, 
Ft.  W.  &  C.  R.  Co.,  10  Ohio  St.  75 :  Cleve- 
land, P.  &  A.  R.  Co.  V.  Curran,  19  Ohio  Si.  i; 
New  York  C.  R.  Co.  v.  Lockwood,  17  Wall, 


344 


LIMITATIONS   OF   LIABILITY,  20,30. 


m 


^1  ( 


357,— FoLi.owKi)  IN  Cliicago,  R.  I.  &  P. 
K.  Co.  i>.  Witty.  32  Neb.  275. 

A  common  carrier  may  diminish  and  re- 
strict liis  common  law  liabilities  by  special 
contract,  and  he  may,  by  e.xprcss  stipula- 
tions, absolve  himself  from  any  and  every 
<legri;e  of  n^-^liycnce,  however  nr^ss,  if  it 
falls  short  of  misfeasance  or  fraud,  pro- 
vided the  terms  and  lanKua<;e  of  the  con- 
tract are  so  clear  and  definite  as  to  leave  no 
doubt  that  such  was  the  understanding  and 
intention  of  the  parties,  lialtimore  &*  O. 
A'.  Co.  v.  Riithlioiw,  1  //'.  Vii.  87.— OvKR- 
RUi.Ki)  IN  Maslin  v.  Baltimore  &  O.  R.  Co., 
14  \V.  Va.  i«o. 

21>.  3Iay  limit  liability  except  fur 
);ro.><4  or  wilful  iivt^ligtHicc— Railroad 
companies  may  by  contract  exempt  them- 
selves from  liability  on  account  of  the  neg- 
ligence of  their  servants  other  than  that 
which  is  gross  and  wilful.  Arnold  v.  Illi- 
fiois  C.  A'.  Co.,  83  ///.  273. 

Common  carriers  cannot  by  contract 
shield  themselves  from  liability  for  their 
own  fraud,  or  their  own  wilful  act  or  neg- 
ligence ;  but  they  may  contract  against 
liability  for  that  low  degree  of  negligence 
or  want  of  care  on  their  part  which  is  not 
equivalent  to  wilful  or  wanton  neglect  of 
duly  or  recklessness,  Heineman  v.  Grand 
Trunk  R.  Co.,  31  //ow.  Pr.  {N.  Y.)  430,  i 
Sheld.  95. 

When  the  carrier  is  a  corporation  whose 
aiTairs  are  intrusted  to  the  management  of 
a  board  of  directors,  it  cannot  exempt  it- 
self from  liability  for  the  wilful  negligence, 
misconduct,  or  recklessness  of  its  board  of 
directors.  Heineman  v.  Grand  Trunk  A\ 
L.'..  31  How.  Pr.  (,N.  J'.)  430,  I  Sheld.  95.— 
Approved  in  South  &  N.  Ala.  R.  Co.  v. 
Wood,  9  Am.  &  Eng.  R.  Cas.  419,  66  Ala. 
167. 

It  is  well  settled  that  a  common  carrier  of 
persons  and  property  cannot  by  any  agree- 
ment, however  plain  and  explicit,  wholly 
relieve  itself  from  liability  for  injury  re- 
sulting from  its  gross  negligence  or  fraud. 
Jilack  V.  Goodrich  Transp.  Co.,  55  Wis,  319, 
13  A'.  \V.  Rep.  244, 42  Am.  Rep.  713. — Quot- 
ing New  Jersey  Steam  Nav.  Co.  v.  Mer- 
chants' Bank,  6  How.  (U.  S.)  344.  Re- 
viEWiNt;  Hart  v.  Pennsylvania  R.  Co.,  7 
Fed.  Rep.  630.— Approved  in  Louisville  & 
N.  R.  Co.  V.  Wynn,  45  Am.  &  Eng.  R.  Cas. 
312,  88  Tenn.  320,  14  S.  W.  Rep.  311.  Dis- 
approved IN  Hart  V.  Pennsylvania  R.  Co., 
112  U.  S.  331. — Lawson  v.  Chicago,  St.  P., 


M.  «S-  O.  Ji,  Co.,  3!  Am.  &*  Eng.  R.  Cas. 
249,  64  IVis.  447,  54  Am.  Rep.  634.  24  A^.  W. 
Rep.  618. 

itO.  For  fuiliiro  to  proiliicc  Hiiitn- 
ble  liieaiiN  for  truiiMUvtioii  of  biiHi- 
iiess.— A  contract,  though  signed  by  the 
shipper,  agreeing  to  release  the  carrier  will 
not  exonerate  him  from  resulting  damage, 
or  from  his  implied  duty  to  furnish  suitable 
means  safely  to  transact  his  business.  J'olts 
V.  irabash.'st.  L.  &^  P.  R.  Co.,  17  Mo.  App. 
394. — Distinguishing  Sloan  v.  St.  Louis, 
K.  C.  cSt  N.  R.  Co.,  58  Mo.  220.  Following 
Welsh  V.  Pittsburg,  Ft.  W.  &  C.  R.  Co.,  10 
Ohio  St.  65;  Indianapolis,  B.  &  W.  R.  Co. 
V.  Strain,  81  III.  504;  Camden  «i  A.  R.  & 
T.  Co.  V.  Burke,  13  Wend.  (N.  Y.)  611.— 
Followed  in  Brown  v.  Wabash,  St.  L.  & 
P.  R.  Co..  18  Mo.  App.  'fi'&.—Brown  v. 
Wabash,  St.  L.  &•  P.  R.  Co.,  18  Mo.  App. 
568.— Following  Potts  v.  Wabash,  St.  L. 
&  P.  R.  Co..  17  Mo.  App.  394.— Reviewed 
IN  Rogan  V.  Wabash  R.  Co.,  51  Mo.  App. 
665. 

If  the  loss  be  attributable  to  the  omission 
of  the  carrier  to  provide  the  safest  vehicle 
in  use  for  the  transportation  of  the  particu- 
lar goods  lost,  or  to  a  failure  to  do  anything 
that  diligence  and  care  would  suggest  was 
feasible  to  have  been  done,  the  company  is 
liable,  even  though  it  may  have  made  a 
special  contract  for  immunity  against  the 
cause  of  the  loss.  Ne^v  Orleans,  St.  I..  &• 
C.  R.  Co.  V.  Faler,  9  Am.  &*  Ettg.  R  n. 
96,  58  Miss.  911. 

The  carrier  must  furnish  vehicles 
on  his  business  of  transportation  sa 
;^'jblic  policy  will  not  permit  him  to  m 
contract  exonerating  himself  for  a  failuii-  to 
do  so.  Haynes  v.  Wabash  R,  Co.,  54  Mo. 
App.  582, 

A  carrier  may  stipulate  for  a  limitation  of 
his  responsibility,  so  far  as  he  is  an  insurer 
against  losses  by  mistake  or  accident;  but 
he  cannot  exempt  himself  from  losses 
caused  by  a  neglect  of  that  degree  of  dili- 
gence which  the  law  casts  upon  him  in  his 
character  of  bailee,  /.ever in s^  v.  Union  TSr* 
I.  Co.,  42  Mo.  88.— Followed  in  Ketchum 
V.  American  Merchants'  Union  Exp.  Co., 
52  Mo.  390.  Quoted  in  Kansas  City,  St. 
J.  &  C.  B.  R.  Co.  V.  Simpson,  16  Am.  & 
Eng.  R,  Cas.  158,  30  Kan.  645,  46  Am.  Rep. 
104. 

A  receipt  signed  by  a  common  carrier  for 
goods  intrusted  to  him  for  transportation 
for  hire,  which  restricts  his   liability,  will 


'■y 

a  I  id 
I  ea 


LIMITATIONS   OF    LIABILITY,  31. 


34: 


not  be  consirucd  as  exempting  him  from 
liability  for  loss  occasioned  by  negligence  In 
the  agencies  he  employs,  unless  the  inten- 
tion tiius  to  exonerate  him  is  expressed  in 
the  instrument  in  plain  and  unequivocal 
terms.     Hooper  v.   Wells,  27  Cat.  11. 

:)1.    Ult'vet   of   cuiitract     liiiiitiuK 
iinioiiiit   recov'^ruble  iipuii  liuliility 
lor    lU'jflliJt'iice.*  —  Where    a    contract 
of  carriage,  signed  by  the  shipper,  is  fairly 
made  with  a  railroad  company,  agreeing  on 
a  valuation  of  tlie  property  carried,  with  the 
rate  of  freight  based  on  the  condition  that 
tliu  carrier  assumes   liability  only  to    the 
extent  of  the  agreed  valuation,  even  in  case 
of  loss  or  damage  by  the  negligence  of  the 
carrier,  the  contract  will   be   upheld   as  a 
pn  .per  and  lawful  mode  of  securing  a  due 
proportion  between  the  amount  for  which 
the  carrier   may    be    responsible    and    the 
freight  he  receives,  and  of  protecting  him- 
self against  extravagant  and  fanciful  valua- 
tions.  Hart  V.  Pennsylvania  R,  Co.,  18  Am. 
&^  En^.  R.  Cas.  604,  112   i/.  i".  331,  5  Sup. 
Ct.    Rep.    151.— AlM'KOViNG    Newburger  v. 
Howard.  6  Phila.  (Pa.)  174;  Squire  v.  New 
York  C.  R.  Co.,  98  Mass.  239;  Hopkins  v. 
Westcott,  6  Blatchf.  (U.  S.)  64;    Belger  v. 
Dinsmore.  51    N.  Y.  166;   Oppenheimer  v. 
United  States  Exp.  Co.,  69  III.  62;  Magnin 
V.  Dinsmore,  56  N.  Y.  168,  62  N.  Y.  35,  70 
N.  Y.  410;  Earnest  7'.  Southern  Exp.  Co.,  i 
Woods    (U.  S.)    573;     Elkins    v.    Empire 
Transp.  Co.,  8i*   Pa.  St.  315;  South  &  N. 
Ala.  R.  Co.  V.  Henlein,  52  Ala.  606,  56  Ala. 
368;    Muser  v.    Holland,    17   Blatchf.  412; 
Harvey  v.  Terre  Haute  &  I.  R.  Co.,  74  Mo. 
538  ;  Graves  v.  Lake  Shore  &  M.  S.  R.  Co., 
137  Mass.    33.     DissAPPROviNG  Southern 
E.\p.  Co.  V.  Moon,  39  Miss.  822  ;  Steamboat 
City  of  y  >rwich,4  Ben.(U.  S.)  271 ;  United 
States  l.xp.  Co.  V.    Backman,  28  Ohio  St. 
144;    Bl  uk  V.  Goodrich    Transp.    Co.,   55 
Wis.  319;  Chicago,  St.  L.  &  N.  O.  R.  Co, 
V.  Abels,  60  Miss.  1017  ;  Kansas  City,  St.  J. 
&  C.   n    K.  Co.  V.  Simpson,  30  Kan.  645; 
Moult.      V.  St.  Paul,  M.  &  M.   R.  Co.,  31 
Minn.   «5.— APPLIED  IN    Zouch   v.   Chesa- 
peake &  O.  R.  Co.,  49  Am.  &  Eng.  R.  Cas. 
702,  36  \V.  Va.  524.     Approved  in  Louis- 
ville &  N.  R.  Co.  V.  Wynn,  45  Am.  &  Eng. 
R.  Cas.  312,  88  Tenn.  320,  14  S.  W,  Rep. 

*  Carriers'  power  to  limit  amount  of  liability 
in  cases  of  negligence,  see  note,  14  L.  R.  A.  433. 

Limitation  of  amount  of  liability  does  not  ap- 
ply in  cases  of  negligence,  see  notes,  16  Am.  & 
Eng.  R.  Cas.  164  ;  18  Id.  61 2. 


311.  Disapproved  in  Grogan  v,  Adams 
Exp.  Co.,  30  Am.  &  Eng.  R.  Cas.  9,  1 14  Pa. 
St.  523.  Distinguished  in  Eells  v.  St. 
Louis,  K.  &  N.  VV.  R.  Co.,  52  Fed.  Rep. 
903  ;  Pacific  Exp.  Co.  v.  Foley,  46  Kan,  457 ; 
McFadden  v.  Missouri  Pac.  R.  Co.,  30  Am. 
&  Eng,  R.  Cas.  17,  92  Mo.  343,  10  West. 
Rep.  372,  4  S.  W.  Rep.  689;  Louisville  &  N. 
R.  Co.  z/.  Wynn,  45  Am.  &  Eng.  R.  Cas.  312, 
88  Tenn.  320,  14  S.  W.  Rep.  311.  Foi.- 
LOWED  IN  Ghormley  v,  Dinsmore,  21  J.&  S. 
(N.  Y.)  36.  Quoted  in  Woodburn  v.  Cin- 
cinnati, N.  O.  k  T.  P.  R.  Co.,  40  Fed.  Rep. 
731  ;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Lesser, 
46  Ark.  236  ;  St.  Louis,  I.  M.  &  S.  R.  Co. 
V.  Weakly,  35  Am.  &  Eng.  R.  Cas.  635,  50 
Ark.  397,  7  Am.  St.  Rep.  104,  8  S.  W.  Rep. 
134;  Brown  z/.  Wabash,  St.  L.  &  P.  R.  Co., 
18  Mo.  App.  ifi%.—Couplandv.  Ilousatonic 
R.Co.,6i  Conn.  531,  23  All.  Rep.  870.  Jialluu 
V.  Earie,  48  Am.  &•  Eng.  R.  Cas.  31,  17  A'. 
/.  441,  22  Ati.  Rep.  1 1 13. 

In  such  a  case  the  weight  of  authority 
seems  to  be  that  the  shipper  would  be 
estopped  from  afterwards  alleging  that  the 
value  was  more  (even  if  there  should  be  loss 
by  the  negligence  of  the  carrier),  for  there 
would  be  no  justice  in  allowing  the  shipper 
to  be  paid  a  larger  value  than  that  delib- 
erately agreed  upon  for  an  article  which  he 
had  induced  the  carrier  to  take  at  a  rate 
lower  than  would  otherwise  have  been 
charged.  Louisville,  A'.  A.  &*  C.  R.  Co.  v. 
Nicholai,  4  ///</.  App.  119,  30  N.  E.  Rep. 
424.  Zouch  v.  Chesapeake  «S-  O.  R.  Co..  49 
Am.  &^  Eng.  R.  Cas.  702,  36  W.  Va.  524, 
\%S.  E.  Rep.  185. 

But  such  special  contract  does  not  pro- 
tect the  carrier  against  liability  for  fraud, 
nor  for  intentional,  wanton,  or  reckless  neg- 
ligence. Louisville  &^  N,  R.  Co.  v.  Sherrod, 
35  Am.  &»  Ettg.  R.  Cas.  6 11,  84  Ala.  178,  4 
So.  Rep.  29. — QUOTINO  South  &  N.  Ala.  R. 
Co.  V.  Henlein,  52  Ala.  606.  Reviewing 
Alabama  G.  S.  R.  Co.  v.  Little,  71  Ala. 
61 1 ;  Louisville  &  N.  R.  Co.  v.  Oden,  80  Ala. 
38.— Distinguished  in  Louisville  &  N.  R. 
Co.  V.  Wynn,  45  Am.  &  Eng.  R.  Cas.  312, 
88  Tenn.  320.  14  S.  W.  Rep.  311. 

Such  a  contract  is  not  a  contract  exempt- 
ing the  carrier  from  the  consequences  of  its 
own  negligence.  If  fairly  entered  into,  such 
a  contract  leaves  the  carrier  liable  for  its 
negligence,  and  simply  fixes  the  rate  of 
freight  and  liquidates  the  damages,  and  is 
therefore  valid.  Harvey  v.  Terre  Haute  &* 
/.  R.  Co.,  6  Am.  &*  Eng.  R.  Cas.  293,  74  Mo. 


fT- 


34G 


LIMITATIONS   OF    LIABILITY,  aii,  :V.i. 


!1 


538.— Approved  in  Hart  v.  Pennsylvania 
K.  Co.,  112  U.  S.  331.  Distinguished  in 
McFadden  v.  Missouri  Pac.  R.  Co.,  30  Am. 
&  Eiig.  R.  Cas.  17,  92  Mo.  343,  10  West.  Rep. 
372.4  S.  W.  Rep.  689;  Louisville  &  N.  R. 
Co.  V.  Wynn,  45  Am.  &  Eng.  R.  Cas.  312, 
88  Tenn,  320,  14  S.  VV.  Rep.  311.  Ex- 
plained in  Doan  V.  St.  Louis,  K.  &  N.  \V. 
R.  Co.,  38  Mo.  App.  408.  Followed  in 
Brown  v.  Wabash,  St.  L.  &  P.  R.  Co.,  18 
Mo.  App.  568.  Reviewed  in  Conover  v. 
Pacific  Exp.  Co.,  40  Mo.  .-^pp.  31. 

A  common  carrier  cannot  by  special  con- 
tract exonerate  himself  from  liability  for 
the  negligence  of  himself  or  his  servants, 
nor  can  the  carrier  limit  the  amount  of  his 
liability  for  negligence,  though  there  may 
be  an  agreement  for  liquidated  damages, 
made  in  good  faith  and  in  reliance  upon 
representations  of  the  shipper.  Diian  v.  St. 
Louis,  K.  Sr*  N.  \V.  R.  Co.,  38  A/o.  App.  408. 

32.  Cuiiipaiiy  cniiiiut  relieve  itself 
from  the  liability  of  a  bailee  for  hire. 
— Although  a  common  carrier  may  by 
special  contract  restrict  his  liability  so  far 
as  he  is  an  insurer  against  losses  by  mistake 
or  accident,  he  cannot  thus  exempt  himself 
from  losses  caused  by  any  neglect  of  that 
degree  of  diligence  pertaining  to  his  pecul- 
iar character  as  bailee.  Davidson  v.  Gra- 
ham. 2  Ohio  St.  131. — Approved  in  Atchi- 
son &  N.  R.  Co.  r/.  Washburn,  5  Neb.  117, 
Followed  in  Kent  v.  Baltimore  &  O.  R. 
Co.,  31  Am.  &  Eng.  R.  Cas.  125,  45  Ohio  St. 
284.  10  West.  Rep.  459,  12  N.  E.  Rep.  798; 
Shriver  v.  Sioux  City  &  St.  P.  R.  Co.,  24 
Minn.  506.  Quoted  in  Coward  v.  East 
Tenn.,  V.  &  G.  R.  Co.,  16  Lea  (Tenn.)  225, 
57  Am.  Rep.  226. 

A  contract  limiting  the  responsibility  of 
a  railroad  company  as  common  carriers 
does  not  relieve  them  from  ordinary  care  in 
the  discharge  of  their  duties.  The  most  it 
can  do  is  to  relieve  them  from  those  con- 
clusive presumptions  of  negligence  which 
arise  when  the  accident  is  not  inevitable, 
even  by  the  highest  care,  and  to  requite 
that  negligence  be  actually  proved  against 
them.  Gohiey\.  Pennsylvania  R,  Co.,  30  Pa. 
St.  242.— Followed  in  Powell  v.  Pennsyl- 
vania R.  Co.,  32  Pa.  St.  414. 

;j;j.  New  York  rule.*— Common  car- 
riers cannot  by  notice  limit  their  common 

♦  New  York  rule  as  to  clauses  in  bills  of  lad- 
ing exempting  carrier  from  liability  jor  loss  oc- 
curring through  negligence,  see  note,  2i  Am.  & 
Enu.  K.  Cas.  150. 


law  liability  as  to  the  safety  of  the  goods ; 
the  risk  in  that  rcs'^'Ct  is  upon  them,  and 
cannot  be  shifted  to  the  owner.  They  may 
by  notice  brought  home  to  the  owner  re- 
quire the  latter  to  state  the  nature  or  value 
of  the  property,  or  may,  for  that  purpose, 
make  a  special  acceptance;  but  they  cannot 
by  notice  rid  themselves  of  the  duty  im- 
posed by  law  to  be  answerable  for  the  goods, 
unless  the  loss  accrues  by  inevitable  acci- 
dent or  the  acts  of  public  enemies,  or  the 
owner  has  been  guilty  of  fraud.  Cole  v. 
Goodwin,  19  Wend.  KN.  F.)  251. — DlSTi.x- 
GUISHED  in  Doyle  v.  Kiser,  6  Ind.  242; 
Kimball  v.  Rutland  &  B.  R.  Co.,  26  Vt.  247. 
Followed  in  Camden  &  A.  R.  &  T.  Co.  v. 
Belknap,  21  Wend.  354;  Gould  v.  Hill,  2 
Hill  (N.  Y.)  623.  Reviewed  in  Slocum  v. 
Fairchild,  7  Hill  292. 

It  must  now  be  considered  as  settled  in 
this  state  that  common  carriers  may  limit 
their  liability  for  negligence  in  almost  any 
respect  by  express  contract  for  such  con- 
sideration as  will  be  satisfactory  to  the  pas- 
senger or  freighter,  and  that  such  contracts 
are  not  against  public  policy.  Lee  v.  Marsh, 
28  How.  Pr.  (A^.  K.)  275,  43  Barb.  102. 

But  in  all  such  cases,  where  the  exemp- 
tion for  loss  from  such  cause  is  expressly 
provideu  •  i  in  the  agreement,  it  has  been 
uniformly  held  that  such  contract  had  no 
application  to  losses  occasioned  by  the 
fraud  or  gross  negligence  of  the  carrier  or 
his  servants  and  agents,  and  that  the  stipu- 
lation for  exemption  only  applied  to  losses 
arising  from  want  of  ordinary  care.  Where 
there  is  no  such  stipulation  in  the  contract, 
it  must  be  held  that  the  contract  does  not 
relate  to  losses  arising  from  the  negligence 
of  the  carrier  or  his  agents.  IVestcott  v. 
Fargo,  63  Barb.  {N.  Y.)  349. 

The  same  rule  is  applicable  to  a  stipu- 
lation that  any  claim  for  loss  shall  be 
presented  within  thirty  days  from  the 
accruing  of  the  cause  of  action.  The  pres- 
entation of  the  claim  within  the  time  atul 
in  the  manner  specified  is  not  a  conditioTi 
precedent  to  the  right  of  action.  HV.vAv// 
V.  Fargo,  63  Barb.  (A'.  I'.l  349. 

Negligence  alone  is  not  misfeasance  or 
an  abandonment  of  the  character  of  carrier 
which  will  deprive  him  of  the  benefit  of  the 
limitation.  Alagnin  v.  Dinsmore.yo  A'.  )'■ 
410;  reversing  10  /.  &^  S.  16.— Distin- 
guishing Sleat  V.  Fagg,  5  B.  &  Aid.  '42. 
Following  Batson  v.  Donovan,  4  B.&  AM. 
21.— Not  followed  in  Alabama  G.  S.  K. 


LIMITATIONS   OF    LIABILITY,  34, 33. 


oit 


Co.  V.  Little,  12  Am.  &  Eng.  R.  Cas.  37,  71 
/'i.  611. 

The  negligence  against  which  a  company 
is  not  permitted  to  contract  must  be  con- 
fined to  tliat  of  the  board  of  directors,  or,  at 
all  events,  cannot  be  extended  beyond  that 
of  the  managing  officers  wlir.  make  general 
regulations  for  the  runniwg  of  trains,  and 
the  transaction  of  the  business  of  the  road. 
Kccney  v.  Grand  Trunk  R.  Co.,  59  Barb.  (N. 
y.)  104;  affirmed  in  X]  N-  Y-  525. 

Common  carriers  may  by  special  contract 
relieve  themselves  from  all  responsibility 
for  injury  to  or  loss  of  the  property  in- 
trusted to  them  for  carriage  occasioned  by 
the  negligence,  misconduct,  fraud, or  felony 
of  their  employes  or  servants.  Heineman  v. 
Grand  Trunk  R.  Co.,  31  How.  Pr.  (N.  K) 
430,  I  Shehi.  95. 

The  rule  in  this  state,  that  a  common 
carrier  may  by  express  stipulation  exempt 
himself  from  liability  for  negligence,  will 
not  be  considered  as  overthrown  or  affected 
by  the  decision  of  the  United  States  su- 
preme court  to  the  contrary.  Mynard  v. 
Syracuse,  B.  «S-  A".  Y.  R.  Co..  7\N.Y.  180,27 
Am.  Rep.  28,  15  Am.  Ry.  Rep.  412  ;  revers- 
ing 7  Hun  399.  —Not  following  New  York 
C.  K.  Co.  w.  Lockwood,  17  Wall.  (U.  S.)  357. 

Although  common  carriers  may  by  ex- 
press contract  exempt  themselves  from 
liability  for  their  own  negligence,  yet  such 
contracts  in  order  to  have  such  effect  must 
be  plainly  and  distinctly  expressed,  so  that 
their  purport  cannot  be  misunderstood  by 
the  shipper.  Nicholas  v.  New  York  C.  6~» 
//.  /;'.  R.  Co.,  9  Am.  &'  Eng.  R.  Cas.  103.  89 
X.  Y.  370.— Following  Mynard  v.  Syra- 
cuse, B.  k  N.  Y.  R.  Co.,  71  N.  Y.  180,  27 
.Am.  Rep.  28.  QUOTING  Magnin  v.  Dins- 
niorc,  56  N.  Y.  168, 

;t4.  Loiiisiuiia  rule. — A  contract  by 
which  a  carrier  stipulates  for  exemption 
troin  responsibility  for  losses  occasioned  to 
another  from  the  negligence  of  his  agents 
or  servants  is  not  against  public  policy  or 
forbidden  by  law  ;  but  if  the  losses  resulted 
from  the  fraudulent,  wilful,  or  reckless  mis- 
conduct of  the  agent  or  employe,  it  would 
be.  lliggins  v.  Xew  Orleans,  AI.  &*  C.  R.  Co. 
28  La.  .Inn.  133, 

;15.  Kii|jr|isli  rnhs— A  contract  with  a 
carrier  exempting  it  from  all  liability  was 
binding  before  the  Railway  and  Canal  Traf- 
fic Act  1854,  17  &  18  Vict.  c.  31.  Carr  v. 
Lancashire &*Y.  R.  Co.,  7  Ex.  707,  7  Railw. 
Cax.  426,  17  Jur.  397,  21  L./.  Ex.  261. 


:h  is  just  and  rea- 
Great  IVestern  R. 
3  Ry.  &•  C.  T.  Cas. 


A  railway  company  may,  by  a  special  con- 
tract signed  as  required  by  the  Ry.  &  C.  Tr. 
Act  1854,  §  9,  limit  their  liability  for  their 
own  neglect  or  default,  and  this  limitation 
is  subject  to  but  one  restriction— that  it  be 
adjudged  to  be  just  and  reasonable.  Tlie 
principle  deducible  from  the  authorities  is 
that  a  contract  of  this  nature,  prima  facie 
unjust  and  unreasonable,  becomes  just  and 
reasonable  if  an  alternative  is  left  to  the 
party  forwarding  or  de'.  t-ring  the  goods  to 
enter  into  a  contract  wl;  . 
sonable.  Gallagher  v. 
Co.,  8  Ir.  R.,  C.  L.  326. 
xxviii. 

A  condition  that  a  railway  company  will 
not  be  liable  "  in  any  case  "  for  loss  or  dam- 
age to  a  horse  or  dog,  delivered  to  them 
for  carriage,  above  certain  specified  values, 
unless  the  value  is  declared,  is  not  just  and 
reasonable  within  section  7  of  the  Ry.  «i  C. 
Tr.  Act  1854,  as  it  is  in  its  terms  uncondi- 
tional, and  would,  if  valid,  protect  the  com- 
pany, even  in  case  of  the  negligence  or  wil- 
ful misconduct  of  their  servants.  Ashenden 
V.  London  &•  B.  R.  Co.,  5  Ex.  D.  190,  42  Z. 
T.  586,  3  Ry.  &*  C.  T.  Cas.  xxix. 

The  delivery  of  goods  by  a  carrier  to  the 
wrong  person,  although  his  name  is  very 
similar  to  that  of  the  consignee,  amounts  to 
wilful  misconduct,  within  the  terms  of  a 
special  contract  exempting  the  company 
from  all  liability  except  that  caused  by  wil- 
ful misconduct.  Hoare  v.  Great  Western  R, 
Co.,  37  L.  T.  i86,  25  Jr.  R.  63.— Distin- 
guished IN  Stevens  v.  Great  Western  R. 
Co..  52  L.  T.  324. 

Subsection  4,  section  20,  of  the  Railway 
Act  of  1868,  31  Vict.  c.  68  (D).  docs  not 
extend  to  ail  cases  in  which  negligence  is 
charged  against  the  railway  company,  but 
to  cases  only  of  neglect  coming  within  the 
provisions  of  subsections  2  and  3.  They  are 
not  prevented  therefore  from  stipulating 
for  a  limited  liability  in  other  cases.  Scar- 
let/ V.  Great  Western  R.  Co.,<\\  U.  C.  Q.  B. 
211.— Distinguishing  Scott  v.  Great  West- 
ern R.  Co.,  23  U.  C.  C.  P.  1S2;  Allan  v. 
Great  Western  R.  Co.,  33  U.  C.  Q.  B.  4S3. 

A  railway  company,  having  no  special 
powers  to  work  steam  vessels,  contracted  to 
convey  the  plaintiff's  cattle  from  D.  by  sea 
to  L,  and  thence  by  railway  to  S.  The  cattle 
were  lost  on  the  passage  to  L.  through  the 
negligence  of  the  crew  of  the  steam  vessel, 
with  the  owners  of  which  the  railway  com- 
pany had  a  through  booking  arrangement 


348 


LIMITATIONS   OF   LIABILITY,  UU-40. 


)IMH. 


(or  the  conveyance  ol  their  traffic.  The 
contract  was  made  subject  to  a  written  con- 
dition exempting  the  railway  company  from 
liability  for  "  loss  of,  or  any  dumage  or  in- 
jury to,  animals,  goods,  or  property  in- 
trusted to  them  arising  from  the  dangers 
or  accidents  of  the  sea,  or  of  steam  naviga- 
tion, the  act  of  God,  the  queen's  enemies, 
jettison,  barratry,  collision,  improper,  care- 
less, or  unskilful  navigation,  accidents  con- 
nected with  machinery  or  boilers,  or  any  de- 
fault or  negligence  of  the  master  or  any  of 
the  officers  or  crews  of  the  company's  ves- 
sels." Held,  that  the  contract  was  gov- 
erned by  section  7  of  the  Ry.  &  C.  Tr.  Act 
1854,  that  the  words  "master  and  crew  of 
the  company's  vessels "  in  this  condition 
applied  to  all  such  vessels  as  the  company 
should  employ,  and  not  merely  to  vessels 
owned  or  worked  by  the  company  itself,  and 
that  the  condition  was  unreasonable  and 
void.  Doolan  v.  Midland  R.  Co.,  2  App. 
Cas.  792,  3  A|y.  <S^  C.  T.  Cas.  xxvii. 

30.  Canadian  rule.— In  Canada  a  car- 
rier is  liable  as  at  common  law,  and  this 
liability  may  be  limited  by  special  contract 
so  as  to  exempt  the  company  even  in  cases 
of  gross  negligence,  misconduct,  or  fraud. 
Dodson  V.  Grand  Trunk  K.  Co.,  7  Can.  L.J. 
N.  S.  263.  Dodson  V.  Grand  Trunk  A'.  Co., 
8  Nov.  Sc.  405. — Applying  Carr  v.  Lanca- 
shire &  Y.  R.  Co.,  7  Ex.  707 ;  Wilton  v.  At- 
lantic R.  M.  Steam  Nav.  Co.,  10  C.  B.  N.  S. 
453;  Hinton  v.  Dibbin,  2  Q.  B.  Rep.  646. 
Following  Peek  v.  North  Staffordshire  R. 
Co.,  10  H.  L.  Cas.  473. 

37.  Lex  loci  contractus  controls.* 
— A  contract  limiting  the  liability  of  a  car- 
rier, valid  in  the  state  where  it  was  made 
and  from  which  the  goods  were  shipped, 
will  control  the  carrier's  liability  for  a  loss 
occurring  in  a  state  where  such  a  contract 
is  void,  //iizel  v.  Chicago,  M.  &^  St.  P.  R. 
Co.,  49  ./;«.  &*  Eng.  R.  Cas.  76,  82  Iowa ^77, 

48  A'.  W.  Rep.  926.— Following  Mc- 
Daniol  v.  Chicago  &  N.  VV.  R.  Co.,  24  Iowa 
412 ;  Talbott  w.  Merchants'  Despatch  Transp. 
Co.,  41  Iowa  2\7.~  Western  6>»  A.  R.  Co.  v. 
Exposition  Cotton  Mills,  35  Atn.  &•  Eng.  R. 
Cas.  (io2,8i  Ga.  522,  7  5.  E.  Rep.  916,  2  L. 
R.  A.  102. 

III.  BUKDEN  OF  PBOOF— PBE8UMFTI0N8. 

38.  Burden  of  bringiuK:  case  with- 
in contractual  exeni|>tion.— In  an  ac- 

*  Validity  of  stipulations  limiting  carriers'  lia- 
bility, determined  according  to  lex  loci,  see  note, 

49  Am.  &  Enu,  R.  Cas.  80. 


tion  by  the  owner  for  damages  to  property 
shipped  the  burden  of  proof  is  upon  thu 
common  carrier  to  prove  the  existence  of  a 
special  contract  of  shipment,  if  there  be 
one,  and  to  prove  that  the  injury  com- 
plained of  resulted  without  his  fault,  from 
some  cause  excepted  by  the  contract.  C/ii- 
cago,  St.  L.  <&*  N.  O.  R.  Co.  v.  Abels,  21  Am. 
6-  Eitg.  R.  Cas.  105,  60  Miss.  1017. — Fol- 
lowed IN  Johnson  v.  Alabama  &  V.  R. 
Co.,  69  Miss.  191  ;  Illinois  C.  R.  Co.  v. 
Scruggs,  69  Miss.  418. — St.  Louis,  I.  M.  is* 
S.  R.  Co.  V.  Lesser,  46  Ark.  236.  Terre 
Haute  &*  L.  R.  Co.  v.  S/ierwood,  132  /nd. 
129,  31  A^.  E.  Rep.  781.— Quoting  Witting 
V.  St.  Louis  &  S.  F.  R.  Co.,  28  Mo.  App. 
103;  New  York  C.  R.  Co.  v.  Lockwood, 
17  Wall.  (U.  S.)  i^T.—Johtison  v.  Alabama 
&•  V.  R.  Co.,  69  Miss.  191,  11  So.  Rep.  104. — 
Following  Chicago,  St.  L.  &  N.  O.  R.  Co. 
V.  Abels,  60  Miss.  1017. — Knell  v.  United 
States  &*  B.  Steamship  Co.,  1  /.  <3-  S.  {X.  V.) 
423.  Cameron  v.  Rich,  4  Strobh.  (So.  Car.) 
168. 

30.  Burden  of  proving  contract 
Just  and  reasonable. — Thu  burden  of 
showing  that  a  condition  in  a  special  con- 
tract limiting  the  carrier's  liability  is  just 
and  reasonable  lies  on  the  company.  J'eei 
V.  North  Staffordshire  R.  Co.,  10  //.  L.  Cas. 
473.  9  /«'■•  A'.  S.  914.  32  J^-  y.  Q.B.  241,11 
IV.  R.  1023.  8  L.  T.  768.— CONSIDERKD  IN 
Manchester,  S.  &  L.  R.  Co.  v.  Brown,  L. 
R.  8  App.  Cas.  703.  53  L.  J.  Q.  B.  124,  50 
L.  T.  281,  32  W.  R.  207.  Followed  in 
Ashenden  v.  London,  B.  &  S.  C.  R.  Co.,  L. 
R.  s  Ex.  D.  190,  42  L.  T.  586,  28  W.  R. 
511,  44  J.  P.  ioi.— Ruddy  V.Midland  G.  W. 
R.  Co.,  8  Ir.  L.  R.  224. 

40.  Burden  of  proof  as  to  iiegli- 
{^ence;  —  A  common  carrier  cannot  con- 
tract against  his  own  negligence.  In  case 
of  loss  the  presumption  of  negligence  is 
against  the  carrier.  Innian  v.  South  Ciiro- 
Una  R.  Co.,  yj  Am.  &*  Eng.  R.  Cas.  663, 
129  U.  S.  128,  9  Sup.  Ct.Rep.  249.— Di.STiN- 
GUISHED  IN  Terre  Haute  &  L.  R.  Co.  v. 
Sherwood,  132  Ind.  129;  Louisville  &  N.  R. 
Co.  V.  Manchester  Mills,  88  Tenn.  653,  14 
S.  W.  Rep  314.  Quoted  in  Woodburn  v. 
Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  40  Fed. 
Rep.  731. 

A  common  carrier  cannot  escape  liability 
for  loss  or  injury  to  property  transported 
under  special  contract,  unless  he  shows  not 
only  a  loss  or  injury  from  a  cause  within 
the   limitation,  but  also    that    it   was  oc- 


m^m 


LIMITATIONS   OF   LIABILITY,  41. 


349 


casioned  without  negligence  on  his  part. 
Son//t  &^  y.  Altt.  K.  Co.  V.  Henlein,  52  Ala, 
606.— DisAFPRuvEU  IN  Louisville  &  N.  R. 
to.  V.  Wyiin.  45  Am.  &  Eng.  R.  Cas.  312, 
S.S  Tcnn.  320.  14  S.  W.  Rep.  311.  Fol- 
low kd  IN  South  &  N.  Ala.  R.  Co.  v. 
ilenlciii,  56  Ala.  36S;  Central  R.  &  B. 
Co.  V.  Sinitlia,  85  Ala.  47,  4  So.  Rep.  708. 
yuoTED  IN  Louisville  &  N.  R.  Co.  v.  Slier- 
rod.  84  Ala.  178,  4  So.  Rep.  29.  Reviewed 
IN  St.  Louis.  \.  M.  &  S.  R.  Co.  v.  Weakly.  35 
Am.  &  Eiig.  R.  Cas.  635.  50  Ark.  397,  7  Am. 
St.  Rep.  104, 8  S.  W.  Rep.  134. — Alabama  G. 
S.  A",  to.  V.  Little,  12  Am.  6^  Eng.  A".  Cas.  37, 
71  Ala.  611.  Lupe  v.  Atlantic  &•  P.  K.  Co., 
3  .Mo.  App.  77.— Following  Ketchum  v. 
.American  Merchants'  Union  Exp.  Co..  52 
Mo.  395.  Not  following  Cochran  v- 
Dinsmore,  49  N.  Y.  249;  Bankard  v.  Bal- 
timore «&  O.  R.  Co.,  34  Md.  197 ;  Kansas 
Fac.  R.Co.  V.  Reynolds,  8  Kan.  641. — Swin- 
iiUr  V.  Milliard,  2  Rich.  (So.  Car.)  286.  Vtl- 
lard  V.  Louisville  &-  N.  A\  Co.,  2  Lta  (  Tom. ) 
288.  Missouri  Pac.  K.  Co.  v.  China  Mfg. 
Co..  79  Tex.  26,  14  S.  IV.  Rep.  785.— Fol- 
lowing Ryan  v.  Missouri,  K.  &  T.  K.  Co., 
65  Te.\.  13. — Rraivn  v.  Adams  Exp.  Co.,  15 
\V.  Va.  812.— Not  followed  in  Wilting 
V.  St.  Louis  &  S.  F.  R.  Co.,  101  Mo.  638. 

When  the  responsibility  is  limited  by 
special  contract,  the  burden  of  proving  neg- 
lij,'ence  is  on  the  shipper.  Kansas  Pac.  R. 
Co.  V.  Reynolds,  8  Kan.  623,  ;  Am.  Ry,  Rep. 
260. 

The  act  which  will  deprive  the  carrier  of 
the  henefitof  a  contract  for  limited  liability 
fairly  made  must  be  an  affirmative,  but  not 
ncrossarily  an  intentional,  act  of  wrong- 
doing; and  the  onus  of  proving  this  is  upon 
the  party  claiming  it.  Magnin  v.  Dinsmore, 
70  .\'.  K.  410;  reversing  \oJ.&*  S.  16. 

When  a  special  contract  for  the  carriage 
of  goods  is  established,  and  the  case  is 
brought  within  the  exemptions  of  such  con- 
tract, and  when  the  shipper  then  seeks  to 
recovor  on  the  ground  of  negligence  in  the 
carria,i;e  of  the  goods,  he  has  the  burden  of 
pPDving  such  negligence.  But  there  is  suf- 
firicnt  evidence  of  such  negligence  when  it 
appears  that  the  goods  were  delivered  to 
the  carrier  in  proper  condition,  and  that, 
when  delivered  by  the  carrier,  the  breakage 
of  them  was  such  as  does  not  ordinarily 
occur  when  they  are  transported  with  due 
care;  and  this  rule  is  applicable  to  a  de- 
livery of  goods  in  a  damaged  condition  by 
the  last  of  several  connecting  carriers,  when 


a  delivery  of  them  in  good  condition  to  the 
first  carrier  is  shown.  Flynn  v.  St.  I^uis 
&*  S.  F.  R.  Co.,  43  Mo.  App.  424.~Review- 
ING  Witting  V.  St.  Louis  &  S.  F.  R.  Co.,  28 
Mo.  App.  103. 

41.  Burden  ul'  iiroviuf;  the  coii- 
truct.* — If  a  carrier  claims  that  by  contract 
or  the  misconduct  of  a  shipper  his  common 
law  liability  has  been  limited,  the  burden 
is  upon  him  clearly  to  show  it,  and  all  such 
contracts  will  be  interpreted  most  strictly 
against  the  carrier.  Rosenfeld  v.  Peoria,  D. 
<S-  E.  R.  Co.,  21  Am.&^  E/ig.R.  Cas.  87,  103 
/nd.  121,  53  Am.  Rep.  500,  2  A'.  E.  Rc-p.  344. 
Pittsburgh,  C.  jS-  St.  L.  R.  Co.  v.  ISarrett,  3 
Am.  &*  Eng.  R.  Cas.  256,  36  Ohio  St.  448, 
Jennings  v.  Grand  Trunk  R.  Co.,  49  Am.  &* 
Eng.  R.  Cas.  98, 127  A'.  }'.  438,  28  A'.  E.  Rep. 
394,40  A'.  y.S.  R.  318;  affirming  52  /lutt 
227.  23  N.   v.  S.  R.  1 5,  5  A',  i;  Supp.  140. 

It  is  only  necessary  that  a  carrier  makes 
satisfactory  proof  that  a  special  contract 
was  made,  under  circumstances  indicating 
fairr  •  ss  and  good  faith,  limiting  its  liability ; 
and  then  it  is  incumbent  upon  a  shipper  to 
show  that  the  contract  ought  not,  for  some 
good  reason,  to  be  enforced  against  him. 
Adams  Exp.  Co.  v.  Guthrie,  9  Rush  (Aj. )  78. 

Although  it  devolves  upon  a  carrier  to 
show  affirmatively  the  terms  of  any  contract 
which  lessens  his  common  law  liability,  yet 
that  fact  is  to  be  proved,  like  any  other,  by 
any  pertinent  evidence.  If  in  writing,  the 
writing  must  be  shown ;  but  if  by  parol, 
there  is  no  rule  which  requires  ditlerent 
proof  from  that  which  would  establish  any 
other  contract.  The  jury  must  be  satisfied 
from  the  evidence  that  a  certain  contract 
exists,  and,  if  satisfied,  that  is  sufficient. 
American  Transp.  Co.  v.  Moore,  5  Mich. 
368.— Distinguishing  New  Jersey  Steam 
Nav.  Co.  I/.  Merchants'  Bank,  6  How.(U.  S.) 

344. 

The  duties  of  a  common  carrier  do  not 
originate  in  contract,  and  where  his  liability 
has  been  limited  by  contract  it  is  not  neces- 
sary, in  an  action  against  the  carrier,  to  sue 
on  the  contract,  but  it  is  incumbent  upon 
him  to  show  how  far  the  liability  was  limited 


•As  to  what  will  constitute  a  contwct  limit- 
ing carriers'  liability,  see  note,  6  L.  R.  A.  850. 

Burden  of  proof  in  actions  against  currier 
where  its  liability  has  been  limited,  see  note,  45 
Am.  &  Eno.  R.  Cas.  367. 

Kurden  of  proof  to  show  contract  by  notice 
between  carrier  and  shipper,  see  note,  5  Am.  Sr. 
Rep.  739. 


I 
I 
1 


350 


LIMITATIONS   OF   LIABILITY,  42,  43 — LIQUORS. 


I  <     !^ 


by  such  contract.     Ltipe  v.  Atlantic  &•  P. 
R.  Co.,  3  Mo.  App.  77. 
42.  PrvMiiiiiptioii  apiiiiiit  .slii|>pcr*8 

assent.— Tlic  fact  that  a  restrictive  notice 
is  siiown  to  have  been  actually  received  or 
seen  by  the  owner  of  the  goods  will  not 
raise  a  presumption  that  he  assents  to  its 
terms,  since  it  is  as  reasonable  to  infer  that 
he  intends  to  insist  on  his  rights  as  that  he 
assents  to  their  qualification,  and  the  bur- 
tlen  of  proof  is  upon  the  carrier  to  establish 
ihc  contract  qualifying  his  liability,  if  he 
claims  tliat  one  exists.  McMillan  v.  Mic/ii- 
j:an  S.  (S-  A'.  /.  A'.  Co..  16  Mic/i.  79.— 
(jL(rrED  IN  Louisville  &  N.  R.  Co.  v. 
Hrownlee,  14  Bush  (Ky.)  lyo.  — Gaines  v. 
Union  T.  &>  I.  Co.,  28  0/iio  St.  418,  14  Am. 
/:y.  Rip.  1 58.  Piltibuigh,  C.  &>  St.  L.  R. 
Co.  V.  Barrett,  3  Am.  <&«•  lit^.  R.  Cas.  256, 
36  OAio  St.  448. 

4;J.  Contract  construed  strictly 
a;;aiiist  company.— Contracts  not  clear 
in  their  meaning  by  which  common  carriers 
seek  to  avoid  the  responsibility  which  the 
law  imposes  upon  them  should  be  construed 
most  strongly  against  iliem.  St.  Louis  &• 
S.  E.  R.  Co.  V.  Smnck,  49  Ind.  302.  8  Am. 
Ry.  Rep.  209.  Louisville,  X.  A.  &*  C.  R. 
Co.  V.  Nicholai,  4  Ind.  App.  119,  30  N.  E. 
Rep.  424.  Edsall  v.  Camden  &^  A.  R.  &•  T. 
Co.,  50  M.  V.  661,  «/*•;«.— F<)l.i.owiNG  Mina. 
Ins.  Co.  V.  Wheeler,  49  N.  Y.  616;  Babcock 
V.  Lake  Shore  &  M.  S.  R.  Co.,  49  N.  Y.491. — 
Blair  v.  Erie  R.  Co.,  66  A'.  V.  313.  Keeney 
V.  Grand  Trunk  R.  Co.,  59  Rarb.  (yV.  I'.) 
104;  affirmed  in  47  X.  Y.  525.  Cream  City 
R.  Co.  V.  Chicago,  M.  «S-  St.  P.  R.  Co.,  2i 
Alt.  ^  Eng.  R.  Cas.  70,  63  Wis.  93,  23  N. 
U '.  Rep.  425,  53  Am.  Rep.  267. 

When  general  words  in  a  shipping  con- 
tract may  operate  without  including  the 
negligence  of  a  carrier  or  its  servants,  it 
will  not  be  presumed  that  it  was  intended 
to  include  such  negligence.  The  presump- 
tion is  against  an  intention  to  crmtract 
for  immunity  against  ordinary  diligence, 
and  hence  the  ordinary  rule  is  that  contracts 
will  not  be  so  construed,  unless  expressed  in 
unequivocal  terms.  Mynard  v.  Syracuse, 
B.  (S-  N.  Y.  R.  Co.,  71  N.  Y.  180,  27  Am. 
Rep.  28,  15  Am.  Ry  Rep.  412;  reversing  7 
Hun  399.— Applying  Wells  v.  Steam  Nav. 
Co.,  8  N.  Y.  375 ;  Steinweg  v.  Erie  R.  Co., 
43  N.  Y.  123.  Following  New  Jersey 
Steam  Nav.  Co.  v.  Merchants'  Bank,  6  How. 
(U.S.)  344.— Applied  in  McKay  v.  New 
York  C.  &  H.  R.  R.  Co.,  50  Hun  563,  20 


N.  Y.  S.  R.  816,  3  N.  Y.  Supp.  708.  Fol- 
lowed IN  Holsapple  v.  Rome,  W.  &  O.  R, 
Co.,  3  Am.  &  Eng.  R.  Cas.  487,  86  N.  Y. 
27s ;  NiclKjlas  v.  New  York  C.  &  H.  R.  R. 
Co.,  9  Am.  &  Eng.  R.  Cas.  103,  89  N.  Y. 
370;  Ghormley  v.  Diiismore,  19  J.  &  S. 
(N.  Y.)  lyS.—k'enney  v.  New  York  C.  (S-  //. 
R.  R.  Co.,  52  Am.  &•  Eng.  R.  Cas.  235 
125  X.  Y.  422,  26  X.  E.  Rep.  626,  35  A'.  J'. 
S.  R,  447  ;  affirming  54  Hun  143,  26  X.  Y. 
S.  R.  636,  7  A'.  Y.  Supp.  255.  Keeney  v. 
Grand  Trunk  R.  Co.,  59  Barb.  {X.  Y.)  104; 
affirmed  in  47  X.  Y.  525.  U'estcott  v.  Eai- 
go,  6^  Barb.  {.V.  K.)  349.  Holsapple  v.  Rome, 
H'.  &•  0.  R.  Co.,  3  Am.  &^  Eng.  R.  Cas.  487, 
86  A^.  ]'.  275.— Following  Mynard  v.  Syr- 
acuse, B.  &  N.  Y.  R.  Co.,  71  N.  Y.  iSo.— 
Black  v.  Goodrich  Transp.  Co.,  55  Wis.  319, 
13  A'.  W.  Rep.  244,  42  Am.  Rep.  713. 

So,  under  the  above  rule  of  construction, 
a  provision  in  a  shipping  contract,  which  is 
entered  into  at  a  reduced  rate,  releasing  the 
carrier  from  all  liability  "  from  whatsoev<  r 
cause  arising  "—/it/d/,  not  to  exempt  the 
carrier  from  liability  for  losses  arisinj;  from 
its  own  negligence.  Mynard  v.  Syracuse, 
B.  ^  A^.  Y.  R.  Co.,  71  N.Y.  180.  27  Am. 
Rep.  28,  15  Am,  Ry.  Rep,  412;  reversing 
7  Hun  399. 

A  contract  undertaking  to  limit  the  lia- 
bility to  that  of  a  mere  forwarder  does  not 
relieve  the  company  from  the  exercise  of 
ordinary  care  while  the  goods  are  in  its  pos- 
session. Overland  M.  &*  E.  Co.  v.  Car- 
roll, 7  Colo.  43,  I  Pac.  Rep.  682.  U'estcott 
v.  Fargo,  63  Barb.  {X.  Y.)  349. 


LIMITED  TICKETS. 
See  Tickets  and  Fares,  42,  8u-U5. 


LiaUIDATED  DAMAGES. 
Generally,  see  Damages.  30,  40. 
When  awarded  for  breach  of  contract,  see 

CONSTKUCTION  OF  RAILWAYS,  35. 

LIQUIDATOR. 
Appointment  of,  in  proceedings  to  dissolve, 

see  Dissolution,  etc.,  22. 
Suits  against,  when  barred  by  lapse  of  time, 
see  Limitations  of  Actions,  46. 
See  also  Receivers. 


LiaUORS. 
Drinking  of,  by  jurors  as  ground  for  new  trial, 
see  New  Trial,  12. 

See  Intoxicating  Liquors. 


f . 


-I? 


LIS   PiiNDENS,  1,2.— LIVE   STOCK. 


m 


LIS  PENDENS. 

1.  When  tlie  doctrine  of  notice 
llroiii  Us  pendens  applies.— The  defend- 
ant in  ejectment  conveyed  the  land  to  a 
corporation  organized  after  the  commence- 
ment of  the  action,  and  of  which  he  was  an 
incorporator,  a  stockholder,  and  the  first 
president.  Held,  that  the  corporation  must 
be  regarded  as  having  received  the  convey- 
ance with  full  knowledge  of  the  pendency 
of  the  suit.  Wisconsin  C.  K.  Co.  v.  Wiscon- 
sin River  Land  Co.,  71  Wis.  94,36  ^V.  W. 
Rip.  837.  W/iilc  V.  Nashville  <5-  A'.  W.  R. 
Co.,  7  J/eisi:  (Tenn.)  51 8. 

2.  and  wlien  not. — It  is  a  gen- 
eral rule  that  all  persons  dealing  with  prop- 
erty are  bound  to  take  notice  of  a  suit 
pending  with  regard  to  the  title  thereto,  and 
will,  at  their  peril,  purchase  the  same  from 
any  of  the  parties  to  the  suit.  But  this  rule 
is  not  of  universal  application.  It  does  not 
apply  to  negotiable  securities  purchased  be- 
fore maturity,  nor  to  articles  of  ordinary 
commerce  sold  in  tiie  usual  way.  Warren 
County  V.  Marcy,  97  U.  S.  96.— FoLl.oWKl) 
IN  Scotland  County  7'.  Hill,  112  U.S.  183; 
Hill  7'.  Scotland  County,  34  Fed.  Rep.  208. 

Where  a  contractor  for  the  building  of 
certain  portions  of  a  railway  having  filed  a 
bill  against  the  company,  alleging,  among 
other  things,  the  execution  by  said  company 
of  several  deeds  of  trust  to  the  same  trust 
company,  and  praying  that  an  account  be 
taken  by  the  court  of  the  valid  indebtedness 
of    said  company,  that  a  judgment  recov- 
ered by  said  contractor  for  the  amount  of 
his  claim  be  decreed  a  first  lien  upon  a  cer- 
tain portion  of  the  road,  and  that  said  deed 
of  trust,  without  specifying  which  one,  niay 
be  foreclosed  for  the  satisfiiction  and  pay- 
ment of  the  debts  secured  thereby,  except 
such  bonds  as  were  illegally  issued,  to  which 
bill  the  trustee  under  the  .leeds  of  trust  de- 
murred and  afterwards  filed  a  bill  to  fore- 
close the  trust   deeds,  and   the  suits  were 
consolidated  upon  the  court's  own  motion, 
the  truster;  being  called   complainant  and 
the  contractor  intervener,  a  plea  of  /is  pen- 
dens subsequently  filed  by  the  contractor 
to  the  complainant's  bill  is  insufficient,  al- 
though he  prayed  for  the  foreclosure  in  his 
bill,  since  no  such  foreclosure  could  be  had 
in  his  suit  unless  the  trust  company  had 
seen  fit    to    ask   it  by   way  of    cross-bill. 
American  L.  5-  T.  Co.  v.  Fast  &»  W.  K.  Co., 
36  Am.  &»  Entf.  A'.  Cas.  276,  37  Fed  AV/.  242. 


LIVE  STOCK. 

Generally,  see  Am.mals. 

Actions  for  injuries  to,  see  Animals,  Injuries 
to;  SrocK  Yards,  4. 

Icilling   or  injuring,   wlien   barred   by 

lapse  of  time,  see  Li.MirATioNS  of  Ac- 
tions, 01. 

Burden  of  proof  in  cases  of  injury  or  loss  of, 
sec  Eviin-.NCK,  i;i7. 

Carriage  of  see  CARRiAciK  of  Livf.  Stock. 

Collisions  with,  caused  by  failure  to  fence, 
see  Empi.oyks,  Injuriks  to,  71>. 

Compromise  by  agent,  of  claim  for  injury  to, 
see  AOKNCY,  <t<>. 

Contributory  negligence  of  owner  of  see  Ani- 
mals, Injuriks  to,  218-288. 

Destruction  of,  by  flooding  lands,  see  Flood- 
iNi;  Lands,  47. 

Doctrine  of  comparative  negligence,  how  ap- 
plied in  actions  for  killing,  see  Comi'ara- 

TIVK  NKCil.ICENCE,    1  O. 

Duty  to  construct  watering  places  for,  see 

CoNsi Ki'cnoN OK  Railways,  O. 
fence  against  trespassing,  see  Fences, 

8:t. 

Evidence  of  danger  to,  on  assessment  of 
land    damages,    see    Eminknt    Domain, 

Excessive  damages  for  killing  or  injuring, 
set  New  Trial,  'Mi. 

Frightening  of,  by  passing  trains  as  an  ele- 
ment of  land  damages,  see  Eminent  Do- 
main, U8<t. 

Injuries  to  cars  by,  see  Injirv  t<i  Cars  hv 
Ca  I  ri.K. 

from  failure  to  build  or  maintain  fences, 

see  Flncks,  iili. 

Instructions  in  actions  for  injuries  to,  see 
.    Trial,  128,  IS.'J. 

Liability  of  ferry  owner  as  carrier  of,  see 
Ferries.  10. 

Loss  of,  by  fire,  liability  for.  see  Fires,  101. 

Obligation  to  receive  and  deliver,  see  Stock 
Yards,  2,  .'J. 

Opinions  of  farmers  as  to  weight  of,  see 
Witnesses,  1  <i;i. 

witnesses  as  to  value  of,  see  Wiinesses, 

llO. 

Permitting  to  run  at  large,  when  negligence, 
see  CoNTRiBinoRY  Neijligence,  40. 

Preventing  access  to  water  by,  as  an  ele- 
ment of  land  damages,  see  Eminent  Do- 

MMN.    71«. 

.\'o;>er  handling  of,  when  calls  for  expert 
testimony,  see  Witnesses,  1 42. 

Release  of  damages  for  injuries  to,  see  Re- 
lease, !)0. 

Transportation  of  diseased,  see  Carriage  ok 
Livestock,  lOU-lin. 


353 


I'i 


I 

■  i 

i  5 

^-  1 


LOANS— LOCATION   OF    ROUTE,  1. 


LOANS. 


By  agents,  see  Ackncy,  GO. 

—  directors,  to  company,  see  Dirkctors,  eic. 

4<(. 

—  state,  application  for,  see  Statk  Aid,  2. 
Expenses  of  obtaining,  when  exempt  from 

taxation . sec  Taxaikjn,  I  78. 
Power  to  borrow  money,  sec  Cmaki i  ks,  ♦•*»  ; 

COKI'OKATKINS,       7  ;       FolU  KIN      CoKl'ORA- 
TIONS,    itt. 

Priority  of  mortgage  over,   sec   Moktcagks, 

125. 
Transfer  of  stock  by  way  of,  see  Stock,  JMI. 
When  subject    to  taxation,   see  Taxation, 

111. 


LOCAL. 

Actions,  for  causing  death,  see  Death  by 
Wkonofui.  Act,  107. 

—  what  are,  see  Animals,  Injuries  to,  204. 
Acts,   rapid  transit  acts  are  not,   see   Els- 

VATKIJ  Raiiavavs.  8. 
Agents,  service  of  process  on,  see  Process, 

:ii. 

And  through  rates,  what  are,  and  how  regu- 
lated, see  CiiAKOKs,  5U-03  ;  Interstate 
CoMMKKCK,  0G-7i. 

—  transitory  actions,    what    are,    see    Ac- 

tions, O,  7. 
Assessments,   exemption  from   taxes  when 
exemption  from,  see  Taxation,  147. 

—  upon  steam  railroads  in  cities,  see  Streets 

and  IIiuiiways,  341-359. 
Authorities,  consent  of,  to  construction  of 

railway,    see  Ei.kvated  Railways,   18  ; 

Stkkkt    Railways,    85-101  ;    Under- 
ground Railways,  2. 
Improvements,  taxes  and  assessments  for, 

see      Municipal      Cortorations,     7-0; 

Stkkki   Rmi.ways.  204-304.  * 

Laws,   constitutionality    of,   see    Statutes, 

17. 
Prejudice,  removal  of  causes  on  ground  of, 

see   Rkmoval  or  Causes,   42,  43,  46, 

47. 
Traffic,   what  is,  under  running  power*,  see 

Leases,  etc.,   122. 


LOCALITY. 
Jurisdiction   as  dependent  on,  see  Justice 
OF  the   Peace,   4  ;    Mortgages,    160, 
170. 


LOCATION. 
Of  crossing  of  railway,  fixing  in  award,  see 

Crossings  of  Railroads,  53,  54. 
—  depots,  agreements  of  agents  as  to,  see 

Agkncv,  47. 


Of  farm  crossings,  see  Farm  Crossings,  6. 

—  highway,  right  to  change,  in  constructing 

crossing,  see  Crossinc;  ov  Streets  and 
HiciiWAYs,  27. 

—  indemnity  lands,  see  Land  Grants,  53. 

—  municipal  corporation,  judicial  notice  of, 

see  EviDKNCK,'l<>3. 

—  power  house  of  cable  railway,  see  Caulk 

Railways.  5. 

—  road  or  station,  validity  of  contracts  as  to, 

see  Con  I  R ACTS,  58-60. 

—  stations,  see  Si  aiions  and  Dki'ots, 0-4G. 

—  termini  of  street  railway,  see  Street  Rail- 

ways, 73. 

—  track    of  steam    railway    in    street,    sco 

Streets  and  Highways,  144-151. 


LOCATION  OF  ROUTE. 

Condition  in  subscription  as  to,  see  Municipal 
AND  Local  Aid,  234. 

Consent  of  abutting  owner  to  change  of.  see 
Street  Railways,  100. 

Interest  on  damages  from  time  of.  see  Emi- 
nent Domain.  7<'0. 

Of  elevated  railway.:,  •.(■  r.iivAiEi)  Rail- 
ways, 2«,  27. 

—  intersecting  road,  ne  I'iklic  Lands.  44. 

—  one  company,  condemnation  by  another, 

see  Eminent  Domain,  117. 

—  street    railway,    change   of,    see    Sikefi' 

Railways,  80. 

Opinion  evidence  as  to  value  of  property  be- 
fore and  after,  sec  Elevated  Railways, 
118;  Witnesses,  123. 

Under  charter  provisions,  see  Charters, 
63-68. 

When  a  taking  under  the  statute,  see  Emi- 
nent Domain,  153. 

—  cures  uncertainty  in  description  of  land 

granted,  see  Emin  nt  Domain,  201. 

I.  OENEBAL  RULES 332 

II.  EXAMINATION  OF  PROPOBED  ROUTE 

BY  COMMIS^-.XONERS 355 

in.  7IUN0  W7.ITTEN  LOCATION,  MAPS. 

PLANS.  ETC 35C) 

IV.  CHANGE  OF  ROUTE  :  RE-LOCATION..  3 38 
V.  RIVAL  LOCATIONS y>2 

I.  GENERAL  RULES. 

1.  RiKlitH,  iioworN,  niul  dutios  of 
tliecoiiipuiiy,  gpiiornlly.— The  strip  of 
land  used  as  a  ri}j;lit  of  way  by  a  milroad  is 
under  the  control  of  the  company,  and  it 
may  locate  its  track  in  siicli  portion  of  the 
right  of  way  as  it  may  deem  proper ;  and 
one  location  of  its  tiack  will  not  t'eprive  it 
of  the  right  to    make    another    location. 


LOCATION    OF   ROUTE,  2, 3. 


8^ 


Dougherty  v.  Wabash,  St.  L.&*P.K.Co., 
19  Mo.  App.  419- 

A  company  is  not  chargeable  with  negli- 
gence because  it  lays  a  track  near  the  bor- 
<icr  of  the  right  of  way.  Flinn  v.  New 
York  C.  <S-  H.  R.  A\  Co..  34  A'.  V.S.  A'.  451. 
5S  //«;/  230,  12  A'.  V.  Supp.  341. 

Where  a  company  is  by  its  charter  author- 
ized to  locate  its  road  as  it  may  deem  expe- 
dient, it  will  not  be  restrained  in  equity  as 
to  tl)e  location  of  the  road,  unless  it  is 
shown  that  it  capriciously  or  wantonly  dis- 
rejiards  the  rights  of  others.  Anspach  v. 
MahanoySr-li.  M.  K.  Co.,  5  J'h//a.i/'a.)4<.)i. 
—  Uk.vikwed  in  Lodge  i/.  Philadelphia,  W. 
&  H.  K.  Co.,  8  Phila.  345- 

All  incorporated  companies  for  construct- 
ing roads  or  canals  are  subject  to  legal  con- 
trol in  a  proper  case;  yet  chancery  will  not 
interpose  such  control  in  a  controverted 
case  of  expediency  of  location  within  the 
proper  points;  nor  will  chancery  in  such 
case  interpose  upon  the  application  of  a 
person  not  otherwise  affected  or  injured 
than  by  the  actual  location  passing  through 
his  land.  Walker  v.  Afad  Kiver  Sf  L.  E. 
R.  Co.,  8  Ohio  38. 

It  would  be  error  to  leave  it  as  a  question 
of  fact  to  the  jury  whether  the  company 
could,  without  unreasonable  expense,  or 
undue  injury  to  the  road,  have  so  changed 
tile  site  of  it  as  to  avoid  having  caused  the 
damage  complained  of.  The  company  alone 
arc  intrusted  with  the  location  of  their  road, 
subject  to  the  liability  imposed  on  them 
by  law  (or  the  daniages  thereby  occasioned.' 
A'lW  Vori  (S-  E.  R.  Co.  v.  i'oung,  33  Pa.  St. 

When  the  legislature  authorizes  the  con- 
struction of  a  railroad  between  two  desig- 
nated points,  no  intermediate  point  being 
named,  and  there  are  two  routes  between 
said  points  equally  feasible,  that  which  is 
most  direct  will  be  deemed  to  have  been 
contemplated  ;  but  where  there  is  a  differ- 
ence in  the  feasibility  of  the  routes,  a  rea- 
sonable discretion  must  be  allowed  in  the 
selection  of  that  to  be  followed.  Newcastle 
&*  R.  R.  Co.  V.  Peru  &^  I.  K.  Co.,  3  Ind. 
464. 

2.   Drleiratioii  of  power  to  make 

location.— Where  the  by-laws  of  a  com- 
pany provide  for  the  appointment  of  an 
executive  committee,  and  further  provide 
"  that  such  a  committee  shall  have  a  general 
supervision  of  the  operations  and  policy  of 
the  company,  and    shall    have    power    to 


6  D.  R.  D.— 


authorize  the  execution  by  the  president, 
secretary,  or  treasurer  of  such  contracts  or 
agreements  as  said  executive  committee 
may  deem  expedient,"  such  authorization 
has  reference  only  to  the  conduct  of  the 
ordinary  business  operations  of  the  com- 
pany, and  does  not  extend  10  such  important 
acts  as  the  direction  and  approval  of  the 
location  of  its  lines  of  railroad,  since  by 
statute  (Act  Pa.  Feb.  19,  1849)  the  duty  of 
location  of  the  road  is  imposed  upon  the 
president  and  directors  of  the  company, 
and  this  discretion  cannot  be  delegated,  nor 
can  the  board  of  directors  approve  and  rat- 
ify the  unauthorized  action  of  its  ollicrrsin 
making  such  location,  as  against  the  1  i^^iits 
of  another  railroad  company  which  may 
have  attached  to  the  property  in  question 
prior  to  such  ratification.  Weideiifeld  v. 
Sugar  Run  K.  Co.,  51  Atfi.  &*  £ng.  R.  Cas. 
505,  48  Ped.  Rep.  615. 

3.  Wlint  coiiHtitiites  a  loi-utluii.— 
The  act  of  location  of  a  railroad  is  the 
adoption  of  a  line  by  resolution  of  the 
company,  and  not  a  mete  experimental  line 
of  an  engineer.  Hagner  v.  Pennsylvania 
S.  V.  R.  Co.,  IS4  Pn.  St.  475.  25  All.  Rep. 
1082. 

It  is  not  necessary,  in  order  to  constitute 
a  location  of  a  railroad,  for  the  purpose  of 
fixing  the  liability  of  subscribers  to  stock, 
that  the  route  be  staked  and  marked  on  the 
ground,  in  such  a  manner  that  its  precise 
line  could  be  found  and  identified.  It  may 
be  completed  by  resolutions  or  acts  of  the 
directors  manifesting  a  corporate  deter- 
mination to  construct  the  road  over  a  par- 
ticular route.  Parker  v.  Thomas,  28  /nd. 
277. 

The  want  of  any  serious  resistance  to  the 
location  of  the  road  at  first  on  a  street ; 
the  acquiescence  in  it  by  the  public  for  a 
period  of  fourteen  years ;  the  affirmance  of 
it  by  the  plaintiff  and  others,  by  accepting 
a  mortgage  upon  the  road  in  its  existing 
state  for  moneys  advanced  by  them  to  pay 
for  its  construction ;  and  the  approval  of  it, 
at  a  public  meeting  of  the  citizens,  called 
for  that  purpose,  are  strong  proofs  of  the 
propriety  of  the  original  location.  Hentz 
V.  Long  Island  R.  Co.,  13  Barb.  (N.  J'.)  646. 

The  line  of  the  company's  road  was  not 
otherwise  located  by  the  company  nor  ap- 
proved by  the  commissioners  than  by  a 
centre  line  with  no  statement  of  widths. 
This  was  fatally  defective  in  itself.  Rut  it 
appeared  that  there  had  been  a  previous 


;;,i    I 


r    \ 


23 


5" 


354 


LOCATION    OF    ROUTE,  4-7. 


m 


HI 

t4 


understanding  between  the  parties  as  to  the 
location  of  the  line,  including  widths  and 
distances,  and  that  in  the  award  of  dam- 
ni^cs  the  land  taken  was  fully  described. 
//</(/,  that  another  intersecting  company 
could  not  take  advantage  of  the  defect. 
A'<w  i'ori-  &*  A'.  E.  R.  Co.  v.  New  York,  N. 
II.  &*  H.  N.  Co.,  25  Ami.  &-  Eng.  R.  Cas. 
215,  52  Conn.  274. 

4.  Lofiitioii  of  termini,  coiiiiec- 
tioiis,  etc.— 111.  St.  of  Feb.  27,  1841,  relat- 
ing to  the  construction  of  the  Northern 
Cross  railroad  between  the  Illinois  river 
and  the  city  of  Springfield,  gave  to  the 
fund  commissioner  full  power  over  that 
part  of  tliL-  road,  and  the  matter  was  left  to 
his  judgment  as  to  the  terminus  of  the  road 
in  or  near  that  city.  Taylor  v.  IV/iilney,  5 
///.  61. 

And  the  provision  of  the  statute  author- 
izing the  donation  and  acceptance  of  lands 
for  depots  and  turnouts  on  the  road  cannot 
be  construed  as  a  declaration  on  the  part  of 
the  state  that  if  it  should  be  deemed  ad- 
vantageous to  the  public  to  make  a  turnout 
and  depot  they  should  be  placed  on  lands 
donated ;  but  they  may  be  constructed  on 
other  lands  if  deemed  proper;  but  it  seems 
that  if  such  lands  were  not  used  by  the 
state  a  reconveyance  of  them  could  be  en- 
forced.    Taylor  v.  Whitney,  5  ///.  61. 

Ry  Mass.  St.  1850,  ch.  268,  the  Midland 
R.  Co.  were  authorized  to  locate  and  con- 
struct a  railroad,  "commencing  at  some 
convenient  point  on  the  Norfolk  County 
railroad;  thence  through  the  southerly  part 
of  Dcdham ;  thence  through  or  near  the 
westerly  part  of  the  towns  of  Canton  and 
Milton."  Held,  that  a  location  commenc- 
ing at  a  point  on  the  Norfolk  County  rail- 
road in  South  Dedham,  and  not  departing 
from  that  road  at  once,  but  running  north- 
erly upon  it  for  more  than  two  miles,  and 
then  approaching  within  two  hundred  rods 
of  the  northwesterly  corner  of  Canton,  and 
running  near  the  westerly  boundary  of  Mil- 
ton, was  authorized  by  the  statute.  Boston 
&-  P.  K.  Corp.  V.  Midland  R.  Co.,  i  Gray 
(A/ass.)  340. 

Where  a  charter  authorizes  a  company  to 
extend,  locate,  construct,  and  maintain  a 
railroad  "  from  a  point  at  or  near  the  pres- 
ent terminus  of  its  track  in  Fall  River,  in 
a  southerly  direction,  to  the  line  of  the 
state  of  Rhode  Island,"  a  location  starting 
at  k  point  2475  feet,  by  the  line  of  the  rail- 
road, northerly  from  the  termination  of  the 


old  track  is  authorized.  Fall  River  Iron 
Works  Co.  V.  Old  Colony  &>  F.  R.  R.  Co.,  5 
Allen  (Mass.)  221.  —  Distinguished  in 
Currier  v.  Concord  R.  Corp.,  48  N.  H.  321. 

A  road  twenty-four  miles  long  was  au- 
thorized "  from  a  point  on  the  I^ennsylvania 
railroad  at  or  near  Parkesburg."  Held, 
that  a  connection  one  mile  and  a  half  east 
of  Parkesburg  was  not  a  transgression  of 
the  act  per  se.  The  connection  with  the 
Pennsylvania  railroad  was  the  great  point ; 
the  place  was  subordinate.  Parke's  Appeal, 
6\Pa.  St.  137. 

5.  PaMsiiiK  near  dwelling  lioutieM. 
— The  question  whether  a  railroad,  under 
the  condition  of  a  bond,  must  be  built  on 
certain  premises  west  and  north  of  a  dwell- 
ing house,  or  merely  west  and  north  of  the 
dwelling  house,  being  in  doubt,  it  should  be 
solved  in  favor  of  the  grantee,  the  railroad 
company,  more  especially  where  the  proba- 
bilities of  the  case  favor  the  same  conclu- 
sion. Kirby  v.  Wabash,  St.  L.  &*  P.  R. 
Co.,  log  HI.  412. 

Virginia  Code,  ch.  56,  §  4,  prcfviding  that 
no  company  shall  invade  the  dwelling 
house  of  any  free  person  for  the  construc- 
tion of  its  road,  or  any  space  within  sixty 
feet  thereof,  without  the  consent  of  the 
owner,  does  not  prohibit  a  railroad  com- 
pany from  laying  a  track  on  its  own  lands 
within  sixty  feet  of  a  dwelling  house.  Ritli- 
Miond  <&-  V.  R.  R.  Co.  v.   Wicker,  13  Or  alt. 

(r«.)375. 

O.  Preliminary  surveys.  —  Railroad 
pompanies  may  make  experimental  surveys 
at  pleasure  before  finally  locating  their 
route.  Neal  v.  Pittsburgh  &*  C.  R.  Co.,  2 
Grant's  Cas.  (Pa.)  137. 

The  preliminary  survey  under  sect'in  28 
of  the  N.  Y.  General  Railroad  Act  is  to  be 
made  before  the  application  for  commis- 
sioners of  appraisal  under  section  14.  And 
the  notice  to  occupants,  under  section  22, 
must  be  given  before  the  right  to  proceed 
under  section  14  begins.  ///  re  New  York 
Gf  B.  R.  Co.,  62  Barb.  (N.  Y.)  85. 

The  title  to  land  for  a  railroad  does  not 
pass  by  the  filing  of  the  survey  in  the 
office  of  the  secretary  of  state.  Hetfield  v. 
Central  R.  Co.,  29  N.  J.  Z,.  571 ;  reversing  29 
A'.  /.  L.  206. 

7.  Extensions.— The  Pa.  Acts  of  April 
18,  1843,  April  18,  1853,  and  April  14,  1863, 
authorizing  the  Pittsburgh  &  Connells- 
ville  R.  Co.  to  extend  their  road  north  and 
east  of  Connellsville,  construed  to  author- 


LOCATION    OF   ROUTE,  8-10. 


355 


izc  a  connection  with  the  Baltimore  & 
Ohio  railroad  at  the  line  between  Md.  and 
Fa.  Com.  ex  rel.  v.  Pittsburg  &*  C.  R.  Co., 
58  Pa.  St.  26. 

Tlie  Canadian  P.  R.  Co.  have  power, 
under  their  charter,  to  extend  their  line 
from  Port  Moody  in  British  Columbia  to 
lMi<;lish  Bay.  Canadian  Pac.  R.  Co.  v. 
Major,  13  Can.  Sup.  Ct.  233;  allowitig  ap- 
p-.al  from  2  British  Col.  (^part  III.)  287,  2 
liritish  Col.  (part  III.)  295. 

Till,  charter  of  a  company  required  the 
road  from  Northborougli  to  Souihborouyh 
to  be  located  as  far  north  as  a  certain  point, 
and  in  the  location  a  curve  was  made  in 
order  to  reach  that  point,  and  the  rdad 
was  thence  continued  toward  Southborough 
by  an  acute  angle.  Hilii,  that  the  subse- 
quent continuation  of  the  railroad  for  about 
a  mile  and  one  half  northerly  from  the  point 
of  the  angle  to  the  village  of  Marlborough 
was  unauthorized.  Brigham  v.  Agricul- 
tural Branch  R.  Co.,  I  Allen  (Mass.)  316. 

II.  EXAMINATION  OF  PROPOSED  KOUTE  BT 
C0MHI8SI0NEB8. 

8.  Appoiiitiiieut  of  cuiiiiiifssioiierH. 

— Any  person  feeling  aggrieved  at  the  route 
d..iermined  upon  by  a  railroad  company 
may.  within  a  certain  time  after  written 
notice  of  the  route,  apply  to  a  justice  of 
the  supreme  court  for  the  appointment  of 
commissioners,  whose  duty  it  is,  after  a 
hearing  of  the  parties,  to  affirm  or  alter  the 
route.  Norton  V.  Wallkill  Valley  R.  Co.,  f>\ 
liarb.  {N.  Y.)  476,  42  Ho7u.  Pr.  22S.- 
Qlo'Ki)  IN  Durham  &  N.  R.  Co.  v.  Rich- 
mond &  D.  R.  Co.,  44  Am.  &  Eng.  R.  Cas. 
168,  106  N.  Car.  16,  10  S.  E.  Rep.  1041. 

Tlic  duty  of  examining  the  route  of  a 
proi)()sed  railroad  is  not  imposed  on  a  jus- 
tice of  the  supreme  court.  The  nature  of 
the  (  xamination  is  such  that  he  cannot 
make  it.  His  sole  duty  is  to  see  that  there 
is  siitticient  cause  for  the  appointment  of 
commissioners,  who  alone  can  make  the  ex- 
amination, and  one  of  whom  must  be  a  civil 
engineer.  Norton  v.  Wallkill  Valley  R,  Co., 
61  liarb.  {N.  Y.)  476,  42  Hmv.  Pr.  228. 

Under  the  New  York  General  Railroad 
Act  of  1850,  §22,  no  person  is  authorized 
to  apply  to  a  justice  of  the  supreme  court 
for  the  appointment  of  commissioners  to 
e.xamine  the  proposed  route  of  a  railroad, 
and  to  aflirm  or  alter  the  same,  except  one 
whose  lands  have  not  been  acquired  by  the 
company,  and  after  the  service  on  him  of 


the  written  notice  required  by  said  section 
to  be  given  by  such  company.  And  he 
must  feel  aggrieved  by  the  proposed  loca- 
tion over  or  through  his  land,  and  set  forth 
his  objections  to  the  route  designated 
through  his  land  in  his  petition.  People  ex 
rel.  V.  Tubbs,  59  Barb.  (N.  Y.)  401 ;  affirmed 
in  49  A'.  Y.  356. 

A  copy  of  the  petition,  under  the  above 
section,  for  appointment  of  commissioners 
should  be  served  upon  the  company,  as  a 
part  of  the  notice  of  hearing  before  the 
commissioners,  so  that  the  company  may 
be  advised  of  what  it  is  to  meet.  The  statute 
provides  for  a  hearing  before  the  commis- 
sioners of  the  parties,  which  includes  the 
company.  People  ex  rel.  v.  Tubbs,  59  Barb. 
{N.   K)40i  ;  affirmed  in  i,<)  N.  Y.  356. 

9. or  jurors.— Where  an  act  of  as- 
sembly authorized  a  railroad  company  to 
"locate  and  construct  "a  railroad,  and  de- 
clared that  the  "  location  shall  be  approved 
by  the  judges  of  the  court  of  quarter  ses- 
sions, upon  the  view  of  six  jurors,  to  be  ap- 
pointed by  said  court  as  directed  " — held, 
not  a  valid  exception  to  the  proceedings 
that  the  location  was  made  by  the  jury,  nor 
that  there  were  not  two  full  terms  between 
the  appointment  of  the  jury  and  the  con- 
firmation of  their  report.  Case  of  Phila- 
delphia &>  T.  R.  Co.,  6  Whart.  (Pa.)  25. 

10.  Powers  and  duties  of  tlieconi- 
iiiissUniers.  —  Commissioners  appointed 
under  New  York  General  Railroad  Act,  §  22, 
to  examine  a  proposed  route  must  alhrm  or 
alter  it,  as  may  be  consistent  with  the  rights 
of  the  parties  concerned  and  of  the  public; 
but  they  are  not  restricted  to  that  part  of  it 
which  lies  within  the  bounds  of  the  land 
of  the  party  procuring  their  appointment. 
Any  portion  of  the  route  within  the  county 
may  be  altered ;  but  their  alterations  must 
not  disturb  the  continuity  of  the  line,  nor 
so  change  the  proposed  route  as  to  leave 
it  disconnected  at  either  end,  and  thus 
abridge  or  interrupt  the  road.  People  ex  rel. 
v.  Tubbs,  49  A'.  I'.  356,  4  Am.  Ry.  Rep.  127 ; 
affirming  ^g  Barb.  401.— Following  In  re 
Long  Island  R.  Co.,  45  N.  Y.  364. 

But  there  should  be  only  one  board  of 
commissioners  in  a  county ;  and  when  it  has 
completed  its  work,  either  affirming  the 
proposed  route,  or  making  the  necessary 
alterations,  the  route  through  the  county  is 
fixed.  People  ex  rel.  v.  Tubbs,  49  A'.  Y.  356. 
4  Am.  Ry.  Rep.  127;  affirming  59  Barb.  401. 

Commissioners  appointed  under  the  New 


.;?' 


,.S 


I   I 


■'-r-  \ 


35G 


LOCATION    Or"    ROUTE,  11-14. 


York  Act  of  1890,  cli.  565,  §  6,  as  amended 
in  1893,  ch.  676,  to  examine  the  proposed 
route  of  a  railroad,  on  the  petition  of  an  ag- 
grieved occupant  or  owner,  are  confined  to 
the  single  alternative  of  approving  the  route 
proposed  by  the  corporation,  or  adopting 
that  proposed  by  the  petitioner.  They  can- 
not select  a  diflerent  route  over  the  lands 
of  other  persons.  In  re  Niagara  Falls  H, 
P.  «S-  M.  Co. ,  68  //««  39 1 ,  s  I  A'.  K.  5.  A'.  887. 

Hut  where  a  route  is  originally  located 
four  rods  wide,  and  that  as  affirmed  by  the 
commissioners  is  but  twenty  feet  wide  on 
the  petitioner's  land,  but  the  twenty  feet  is 
a  part  of  the  four  rods,  and  the  company  by 
a  resolution  of  its  directors  assents  to  this, 
and  other  conditions,  the  action  is  not  in 
conflict  with  the  above  rule.  In  re  Niagara 
Falls  H.  P.  <S-  M.  Co.,  68  Hun  391,  51  A'.  Y. 
S.  A'.  887.— Quoting  In  re  Lake  Shore  & 
M.S.  R.  C0..89N.  Y.  442. 

The  charter  of  the  Hartford  &  New 
Haven  R.  Co.  does  not  require  the  width  of 
the  road  to  be  determined  before  the  route 
is  approved  by  the  commissioners,  and  the 
freeholders  to  assess  the  damages  are  ap- 
pointed. Williams  v.  Hartford  &*  N.  H. 
K.  Co..  13  Conn,  no. 

11.  Review  of  commiHsioners'  de- 
cisions. —  Commissioners  who  are  ap- 
pointed to  examine  a  proposed  route  are 
not  empowered  to  determine  the  character 
of  the  corporation ;  and  where  their  action 
comes  before  the  general  term  on  appeal, 
the  court  can  only  review  the  determina- 
tion of  the  commissioners,  and  cannot  de- 
termine whether  the  corporation  is  organ- 
ized for  a  public  purpose.  In  re  Niagara 
Falls  H.  P.  &-  M.  Co.,  68  Hun  391,  51  M 
y.  S.  A\  887. 

Where  it  appears  that  commissioners 
have  exceeded  their  powers,  and  undertaken 
to  canvass  and  sit  in  judgment  upon,  the 
duties  and  obligations  of  the  company, 
under  its  charter,  in  locating  its  road  gen- 
erally, and  in  its  choice  of  routes;  and  it  is 
impossible  to  discover  any  benefit  which 
could  accrue  to  the  petitioners  by  the  new 
location  over  the  one  proposed  by  the  com- 
pany ;  and  it  appears  that  the  commissioners 
were  actuated  by  improper  considerations, 
their  decision  changing  the  proposed  route 
will  be  reversed.  People  ex  rel.  v.  T-hbs, 
59  Barb.  {N.  V.)  401 ;  affirmed  in  49  A.   Y. 

356. 

12.  Forfeiture  of  location  after 
approval. — Where  a  statute  provides  that 


a  railroad  company  must,  within  twelve 
months  after  the  acceptance  of  its  route  by 
the  commissioners,  pay  for  all  land  taken, 
or  the  acceptance  shall  be  void,  such  failure 
is  not  a  forfeiture  which  can  only  be  en- 
forced by  the  state  in  a  direct  proceefiing. 
but  the  whole  proceeding  becomes  void  at 
the  expiration  of  the  twelve  months.  Ni-to 
York,  H.  &*  N.  a:  Co.  v.  lioston,  H.  6-  E. 
R,  Co.,  36  Conn.  196.— Quoikd  in  Oakland 
R.  Co.  V.  Oakland,  B.  &  F.  V.  R.  Co..  45 
Cal.  365. 

And  where  the  location  has  been  accepted 
before  the  passage  of  the  statute,  and  it 
only  acts  prospectively,  the  case  comes 
within  the  statute,  and  a  failure  to  [lay  for 
land  within  twelve  months  from  the  pas- 
sage of  the  statute  forfeits  the  right  thereto. 
New  York,  H.  <S-  A'.  R.  Co.  v.  Boston,  H. 
&*  E.  R.  Co.,  36  Conn.  196. 

III.  FILING  WBITTEN   LOCATIOH,   MAPS, 
PLANS,  ETC. 

13.  Notice  of  location,  Kcuernlly.— 

A  railroad  company  in  determining  upon 
its  route  acts  arbitrarily.  No  one  is  en- 
titled to  notice  until  the  route  has  been 
actually  designated  and  the  map  and  profile 
filed.  7  aen,  for  the  first  time,  the  company 
is  in  a  condition  10  notify  the  property 
holders  whose  lands  are  to  be  taken.  A'or- 
ton  V.  Wallkill  Valley  R.  Co..  42  How.  Pr. 
(N.  Y.)  228,  61  Bari.  476. 

A  file  or  entry  in  a  surveyor's  book  is  not 
notice  of  a  location,  unless  such  book  be 
kept  in  the  office  of  the  surveyor,  and  be 
accessible  to  inspection,  as  provided  by  Tex. 
Act  of  1856.  Houston  6-  T.  C.  R.  Co.  v. 
McGehee,  49  Tex.  481. 

14.  Fillnt;  written  location— Valiil- 
ity,  and  what  covered  by.— Where  the 
time  for  filing  the  location  with  the  county 
commissioners  was  fixed  by  a  statute  to  be  on 
February  8,  a  depositing  of  it  at  their  office, 
with  their  clerk,  on  February  6  was  good, 
although  a  term  of  the  commissioners'  court 
did  not  occur  until  the  following  April. 
Eaton  V.  European  &»  N.  A.  R.  Co.,  59  Me. 
520. 

Where  by  an  act  of  the  legislature,  ap- 
proved Jan.  17,  1869,  "one  year  from  and 
after  the  approval  "  was  given  to  alter  and 
amend  the  location  between  certain  termini, 
and  the  amended  location  was  adopted  on 
Jan.  15,  1870,  and  received  and  filed  by 
their  clerk  in  the  county  commissioners' 
office  on  Jan.  17, 1870,  the  filing  was  season* 


LOCATION    OF   ROUTE,  15,  16. 


35: 


able,  although  there  was  no  session  of  tlie 
commissioners'  court  until  the  following 
April.  Eaton  v.  European  &-  N.  A.  A'.  Co., 
59  Ah:  520. 

Under  Mass.  Gen,  St.  ch.  63.  ^g  17,  18, 
authorizing  railroad  corporations  to  lay  out 
their  roads  not  exceeding  five  rods  in  width, 
and  requiring  the  location  to  be  filed  with 
the  county  commissioners,  defming  the 
courses,  distances,  and  boundaries  in  each 
county,  a  location  which  does  not  state  the 
width  of  the  land  taken  or  the  boundaries 
of  the  location,  nor  refer  to  a  map  of  the 
land  placed  on  tile,  is  invalid.  Housatonic 
A'.  Co.  V.  Lee  <S-  //.  A'.  Co.,  1 18  A/ass.  391.— 
Quoted  in  Boston  &  M.  R.  Co.  v,  Lowell 
&  L,  R.  Co..  124  Mass.  368. 

Mass.  Rev.  St.  ch.  39,  ^  75,  is  satisfied  if 
the  location  of  a  railroad,  as  filed,  identifies 
the  land ;  and  the  name  of  the  owner  ol  the 
land  need  not  be  stated  therein.  Brock  v. 
Old  Colony  R.  Co.,  33  Am.  &-  Eng.  K.  Cas. 
96,  146  ^tass.  194,  5  A'.  Eng.  Rep.  724,  15  N. 
E.  Rep.  555. 

A  company  required  Liy  its  charter  to 
name  in  its  report  of  location  the  owners  of 
the  lands  taken  by  it  for  the  location  and 
construction  of  its  railroad,  so  far  as  the 
same  can  be  ascertained,  in  order  that  no- 
tice may  be  given  to  such  owners  of  the  tak- 
ing, and  to  enable  them  to  claim  their  dam- 
ages, is  not  estopped,  on  the  trial  of  a  claim 
f(ir  damages,  from  disputing  the  title  of  one 
named  in  its  report  of  location  as  owner  of 
the  land  in  respect  of  which  damages  are 
claimed,  but  may  dispute  such  title,  or  the 
character  of  it,  to  the  whole  or  any  part  of 
the  land,  especially  when  the  owner  of  the 
land  in  question  is  no  further  designated 
than  by  his  family  name,  his  Christian  name 
not  being  given  in  the  report.  Allyn  v. 
Prmiidence,  W.  6-  B.  R.  Co.,  4  R.  I.  457. 

The  location  by  a  railroad  company  of  a 
part  of  its  road  closed  thus:  To  a  certain 
point,  and  thence  "about  six  hundred  feet 
into  Depot  No.  i  "  (a  parcel  of  land  belong- 
ing to  the  company).  "  The  above  described 
line  is  the  centre  line  of  the  railroad,  and  is 
traced  in  blue  on  the  accompanying  plan." 
Tlie  plan  was  filed  with  the  location.  The 
blue  line  on  the  plan  extended  across  the 
street  on  which  Depot  No.  i  was  situated 
and  into  Depot  No.  i ;  but  a  measurement 
of  six  hundred  feet  according  to  the  plan 
from  the  said  point  extended  into  said 
street,  but  not  quite  across  to  Depot  No.  i. 
The  location  defined  its  width  as  far  as  the 


street,  but  neither  the  location  nor  the  plan 
defined  it  any  further.  Held,  that  the  loca- 
tion did  not  cover  any  part  of  Depot  No. 
I.  Pinker  ton  v.  Boston  &•  A.  R.  Co.,  109 
Mass.  527,  7  Am.  Ry.  Rep.  480. 

In  an  action  to  try  the  title  to  a  small 
parcel  of  land  occupied  by  a  company  in 
the  rear  of  its  C.  F.  station,  it  appeared  that 
a  re-location  duly  filed  by  the  company  de- 
scribed the  boundary  line  of  the  land  taken, 
after  running  southwesterly  "to  the  fence" 
between  its  land  and  that  of  the  plaintiff's 
predecessor  in  title,  as  "  thence  turning  and 
running  westerly  on  the  boundary  line  "  be- 
tween them.  The  location,  further  to  iden- 
tify the  land  taken,  referred  to  a  colored 
plan  which  included  the  parcel  in  question. 
The  location  and  the  plan  agreed  if  the  line 
"running  westerly"  was  taken  to  be  the 
line  of  such  fence.  Another  plan  furnished 
such  predecessor  in  title  was  colored  only 
up  to  the  parcel  in  question,  but  showed  it 
inclosed  by  a  line  and  marked  "C.  F.  sta- 
tion. "  Subsequently  the  company  accepted 
from  such  predecessor  a  deed  of  land  de- 
scribing the  granted  premises  as  the  "land 
of  the  grantors  taken  "  by  the  location,  and 
bounding  it  by  "  land  of  said  company  used 
for  C.  F.  station,"  but  not  including  the 
parcel  in  question.  Soon  after  the  same 
grantor  gave  to  the  company  a  license  to 
occupy  other  land  of  his,  which  it  ever  after 
occupied,  and  which  would  have  been  of  no 
use  whatever  if  the  company  was  not  en- 
titled to  the  parcel  in  question.  HeU,  that 
the  location  included  the  parcel  in  question, 
and  that  the  acceptance  of  the  deed  from 
the  plaintiff's  predecessor  in  title  did  not 
affect  the  company's  rights  under  the  loca- 
tion. Cunningham  v.  Boston  &*  A,  R.  Co., 
153  Afass.  506.  27  A'^.  E.  Rep.  660. 

15.  Practical  location  by  statute.— 
Where  a  company  is  chartered  by  the  legis- 
lature to  construct  a  road  between  desig- 
nated points  and  on  certain  designated 
streets,  this  in  itself  constitutes  a  practical 
location  of  the  route,  and  dispenses  with 
notices  and  filing  the  map,  as  required  by 
the  General  Railway  Act.  In  re  Coney 
Island &>  B.  R.  Co.,  12  Hun  {N.  Y.)  451. 

16.  Maps  aiKl  plans.— Where  a  stat- 
ute requires  a  map  of  a  railroad  to  be  filed 
with  the  secretary  of  the  interior,  the  neg- 
lect of  the  secretary  to  file  the  map  cannot 
impair  the  company's  rights.  United  States 
v.  Northern.  Pac.  R.  Co.,  41  Fed.  Rep.  842. 

A   plan  or  map  filed   by  a  corporation, 


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LOCATION   OF   ROUTE,  17. 


to^'ethcr  with  the  location  of  its  road,  and 
expressly  made  "  a  part  of  the  description 
of  said  location,"  may  be  referred  to  to  ex- 
plain, but  not  to  modify  or  control,  the 
written  location.  Ha::i;n  v.  lioslon  Sr'  M. 
J\\  Co.,  2  Gray  (Mass.)  574.— Al'PkoVKl)  IN 
New  York  &  H.  R.  Co.  v.  Godwin,  13  Abb. 
Pr.  N.  S.  (N.  Y.)  21. 

A  location  filed  with  the  county  com- 
missioners, by  which  alone  the  true  location 
upon  the  ground  cannot  be  fixed  and  ascer- 
tained, is  nevertheless  sufFicicnt  if,  by  a 
plan  which  is  made  part  thereof  and  filed 
therewitli,  the  location  can  be  determined. 
Grand  Junction  R.  &*,  D.  Co.  v.  Middlesex 
County  Coni'rs,  14  Gray  (Mass.)  553. 

Where  a  company  is  authorized  to  build  a 
road  from  a  dcsij^natcd  point  in  one  county 
to  a  designated  point  in  an  adjoining 
coimty,  and  files  a  map  of  its  location, 
which  is  entirely  in  the  first  county,  it  must 
be  regarded  either  as  a  nullity,  as  not  con- 
forming to  the  articles  of  association,  or  it 
must  be  considered  as  a  part  only  of  the 
route,  so  that  when  a  similar  map  of  the 
residue  is  filed  it  may  be  considered  one 
map,  and  sufficient  under  the  law.  Mason 
V.  Brooklyn  City  &*  A'.  K.  Co.,  35  Barb. 
(N.  Y.)  373.— Applied  in  Peoplez/.  Brook- 
lyn. F.  &  C.  I.  R.  Co.,  9  Am.  &  Eng.  R.  Cas. 
457,  89  N.  Y.  75.  Rkconciled  in  East 
Ala.  R.  Co,  V.  Tennessee  &  C.  R.  R.  Co.,  29 
Am.  &  Eng.  R.  Cas.  363,  78  Ala.  274. 

A  map  of  a  portion  of  the  route  intended 
to  be  adopted  by  the  company,  filed  in  the 
county  clerk's  office  as  directed  by  the  stat- 
ute, cannot  control  or  modify  the  charter  of 
the  company ;  and  where  the  charter  or  the 
articles  of  association  and  the  map  are  in 
conflict,  the  map  must  yield.  It  cannot 
work  a  change  of  the  termini,  or  an  aban- 
donment of  a  portion  of  the  road.  Mason 
V.  IWookiyn  City  <S»  A'.  R.  Co.,  35  Barb. 
(A'.  Y.)  373. 

The  filing  of  a  map  of  a  proposed  railroad 
does  not  definitely  establish  the  route. 
Actual  notice  must  be  given  to  all  occu- 
pants, and  within  fifteen  days  any  party 
feeling  aggrieved  may  apply  for  a  change  of 
route.  New  York  Sf  A.  R.  Co.  v.  New 
York,  W.  S.  &*  B.  R.  Co.,  1 1  Abb.  N.  Cas. 
(N.  Y.)  386. 

Where  a  map  of  a  route  shows  only  a  sin- 
gle line,  and  gives  no  information  whether 
this  is  a  centre  or  an  exterior  line  of  the 
route,  and  does  not  give  the  width  or  quan- 
tity of  land  to  be  taken,  it  is  not  suflficient, 


where  the  statute  allows  the  company  to 
take  land  of  different  widths,  not  to  exceed 
six  rods.  Neiv  York  &*  A.  R,  Co,  v.  A'«w 
York,  If.  S.  &*  B.  k.  Co.,  11  Abb.  N.  Cas. 
(N.  Y.)  386. 

A  map  of  the  location  which  shows  a  sin- 
gle line  running  along  a  highway,  with  a 
note  accompanying  which  states  that  the 
centre  line  of  the  railroad  track  is  to  he 
eighteen  feet  from  the  westerly  line  of  the 
highway,  shows  the  location  of  the  railroad 
with  sufficient  certainty,  and  the  extent  of 
the  land  proposed  to  be  taken.  /«  re  Coney 
Island  iSr-  B.  R.  Co.,  12  //««  (A',   Y.)  451. 

Where  the  railroad  was  completed 
through  the  locus  in  quo  prior  to  the  act  of 
1872  (N.  Car.  Code,  ^  1952),  it  was  not  neces- 
sary to  the  validity  of  the  location  that  a 
map  of  the  route  should  be  filed.  Purifoy 
V.  Richmond  &*  D.  R.  Co.,  46  Am.  &•  Iuii[, 
R.  Cas.  232,  108  A'.  Car,  100,  12  S.  E.  Rep. 
741. 

17.  CHANGE  OF  BOUTE ;  RE-LOOATIOIT. 

17.  Itit;lit  to  cliuiiKc  location,  kpii- 
erally. — A  company  may,  at  least  before 
actual  construction  of  the  road,  in  accord- 
ance with  its  discretion,  change  its  line  or 
route  after  the  same  has  been  fixed.  Ma- 
haska County  R.  Co.  v.  Des  Moines  Valley 
R.  Co.,  28  Iowa  437.  Hagner  v.  Pennsyl- 
vania S.  V.  R.  Co.,  154  Pa.  St.  475,  25  Atl. 
Rep.  1082.  Ex  parte  South  Carolina  R.  Co., 
2  Rich.  (So.  Car.)  434.  — Reviewku  in  Mis- 
sissippi &  T.  R.  Co.  v.  Devaney,  42  Miss. 
555,  2  Am.  Rep.  608. 

Railroad  companies  may  change  the  lo- 
cation of  their  depots  and  tracks,  when  no 
detriment  to  the  public  ensues  therefrom, 
and  may  condemn  property  for  such  re-loca- 
tion. Mississippi  <S-  T.  R.  Co.  v.  Devaney,  42 
Miss.  555,  2  Am.  Rep.  608.— Cruicising 
State  V.  Dawson,  3  Hill  (So.  Car.)  100.  Re- 
viewing  Moorhead  v.  Little  Miami  R.  Co., 
17  Ohio  340  ;  State  v.  Norwalk  &  D.  Turn- 
pike Co.,  10  Conn.  157;  Hartford,  N.  L., 
W.  &  T.  County  Soc.  v.  Hosmer,  12  Cotm. 
364;  New  Orleans  &  C.  R.  Co.  v.  New  Or- 
leans, I  La.  Ann.  128;  Knight  v.  Carrollton 
R.  Co.,  9  La.  Ann.  284  ;  Ex  parte  South  Car- 
olina R.  Co.,  2  Rich.  (So.  Car.)  434  ;  South 
Carolina  R.  Co.  v.  Blake,  9  Rich.  220. — 
Distinguished  in  Petition  of  Providence 
\  W.  R.  Co.,  17  R.  L  324. 

The  fact  that  a  company  may  have  devi- 
ated elsewhere  from  the  charter  limits  of 
its  road  will  not  make  it  liable  to  plaintiff 


LOCATION    OF    KOUTIi,  18. 


3&0 


f)r  breaking  and  entering  his  close,  wiicrc 
it  is  wiihi'i  its  charter  limits  on  his  land. 
.Wxt'lon  V.  Agricultural  Branch  A'.  C<>r/>,,  15 
limy  (4IA1W.)  27. 

The  right  of  way  may  not  "  float,"  but  tiic 
tnicit  may  "float"  to  any  portion  of  tiie 
ri^jht  of  way,  but  it  may  be  liable  in  dani- 
iij^i'S  for  the  negligent  construction  of  its 
tracks  so  changed  in  location.  JJ(>ut,'/ifr/j' 
V.  U'iibas/t,  SI.  L.  Sf  P.  A'.  Co.,  uj  Mo.App, 
419. 

If  the  company  should  persist  in  capri- 
ciously changing  their  locations,  so  as  to 
injure  the  title  to  lands  once  entered  upon 
(if  such  injury  could  arise  therefrom),  such 
proceeding  can  be  the  subject  of  redress  at 
the  suit  of  those  injured.  Roberts  v.  P/iiU- 
dtlphia.  G.  &-  N.  A'.  Co..  i  Plula.  (Pa.)  262. 

The  line  of  a  lateral  railroad  was  sur- 
veyed and  marked  on  the  ground,  difTering 
somewhat  from  the  location  describeri  in 
the  petition,  but  the  riama-^es  were  assessed 
for  it  as  located,  //eld.  that  this  was  the 
true  and  authorized  line.  /Uydw  A'fj^ley, 
53  /'a.  St.  387.— Reviewkij  in  Chicago  & 
W.  I.  R.  Co.  V.  Cogswell,  44  III.  App.  388. 

When  a  petitioner  adopts  a  grade  before 
damages  are  assessed  and  marks  the  grade 
along  the  route,  it  would  be  incquittible  to 
permit  him  to  change  it  after  assessment, 
and  adopt  one  more  injurious  to  the  land- 
owner,   /ioyd  V.  A\tilcy,  53  /\i.  St.  387. 

IH. uiiilcr  HtHtiitury  or  charter 

l^rovisioiiN.— Mc.  Act  of  1853,  cli.  41,  is 
general  and  remedial,  applicable  to  rail- 
roads existing  at  the  time  of  its  passage, 
and  passed  in  the  exercise  of  the  police 
power;  but  it  cannot  be  construed  to  re- 
(piire  railroads  already  constructed,  or 
whose  location  has  been  com()leted  and 
(Inly  fdcd,  and  the  construction  begun  un- 
der a  binding  contract,  to  locate  anew  in 
order  to  comply  with  its  provisions.  Vea- 
zic  V.  Mayo,  49  ^/e.  \  56. 

In  such  case  the  provision  making  a  rail- 
road which  has  not  "onfnrmed  to  the  stat- 
ute in  crossing  a  street,  etc.,  a  nuisance,  and 
holding  the  directors  personally  liable,  does 
not  apply.      Veasie  v.  Mayo,  49  Me.  1 56. 

By  Mass.  Rev.  St.  ch.  39,  (5  73,  a  railroad 
corporation,  who  file  the  location  of  their 
road  with  the  county  commissioners  within 
one  year,  as  required  by  section  75,  may, 
after  the  expiration  of  that  year,  within  the 
time  prescribed  by  law  for  completing  their 
road,  vary  the  location  of  any  portion  of 
their  road  to  any  extent,  provided  they  do 


not  locale  any  part  thi-reof  without  the 
limits  prescribed  by  tlieir  act  of  incorpora- 
tion ;  although  their  act  of  incorpvjration, 
which  provides  that  they  shall  have  the 
powers  and  duties  set  forth  w  Rev.  St.  ch. 
39,  also  provides  thai  it  shall  be  void,  if 
their  location  be  not  filed  within  one  year. 
And  their  power  so  to  vary  their  location  is 
not  controlled  or  limited  by  the  original  lo- 
cation, as  filed  with  the  county  commission- 
ers, /ioston  t5«  /'.  /»'.  Corp.  v.  Midland  /i. 
Co.,  I  Gray  KMass.)  340.— Dlsi  iNCiCisiiKU 
l.\  Petition  of  Providence  &  W.  R.  Co.,  17 

R.  1.  324. 

The  authority  of  a  railroad  corporation 
to  locate  its  road,  as  aflected  by  various 
special  acts  in  amendment  of  its  charter, 
and  by  the  general  statutes,  considered. 
Melvin  v.  //oilt,  52  ^V.  //,  61,  2  Am.  /<y. 
/\'ep.  195. 

A  provision  in  a  charter  authorizing  a 
company,  if  necessary,  to  change  the  loca- 
tion of  any  turnpike,  or  other  public  road, 
does  not  constitute  the  company  the  sole 
judge  of  the  necessity  of  such  cliange. 
Their  action  is  subject  to  review,  and 
whether  the  necessity  actually  exists  is  a 
question  of  fact,  /utston  &*  A.  /\\  Co.  v. 
Greemvich,  25  N.  J.  /iq.  565. 

The  provision  of  the  N.  Y.  General  Rail- 
road Act,  Laws  of  1850,  g  23,  ch.  140,  as 
amended  by  Laws  of  1876,  ch.  Tj,  authoriz- 
ing the  directors  of  a  corporation,  organ- 
ized under  it,  by  a  two-third  vote,  to  locate 
a  new  route  in  a  county  adjoining  a  county 
mentioned  in  the  articles  of  association, 
docs  not.  in  order  to  constitute  a  valid  ex- 
ercise of  the  power,  require  a  designation  at 
the  time  of  voting  of  the  particular  line  to 
be  occupied  by  the  road ;  it  is  sufficient  if 
the  directors,  by  proper  vote,  determine  that 
the  road  shall  be  built  upon  a  new  route  in 
a  specified  county.  The  designation  of  the 
exact  line  is  a  subsequent  proceeding.  /« 
re  N,if  York,  L.  &*  W.  A'.  Co..  \o  Am.  &* 
Ens:.  P-  (-<'s-  n  3,  88  A'.  V.  279 ;  affirming 
25  ////«  556. 

After  the  incorporation  of  the  petition- 
ers, its  directors,  by  more  than  a  two-third 
vote,  passed  a  resolution  to  amend  its  arti- 
cles of  association,  by  omitting  therefrom 
the  counties  of  S.  and  T..  named  therein  as 
counties  through  which  its  road  was  to  run, 
and  inserting  in  place  thereof  the  county  of 
C,  which  adjoins  the  counties  so  named. 
The  preamble  of  the  resolution  recited  that 
after  the  filing  of  the  original  articles  it 


1??l3i^ 


"A 


i 


1 


3C0 


LOCATION   OF   ROUTE,  19. 


had  been  ascertained  by  said  directors  that 
a  part  of  the  line  of  the  road  ought  to  be 
hicatcd  in  the  state  of  Pennsylvania,  to  do 
which  it  was  necessary  that  the  road  should 
be  constructed  througii  the  county  of  C, 
and  that  to  supply  the  omission  to  name 
th»t  county  in  the  original  articles,  it  was 
coDsidered  expedient  to  file  amended  arti- 
cles. Held,  that,  assuming  the  action  of  the 
directors  was  not  clfectual  to  operate  as  an 
amendnient  of  the  original  articles,  it  might 
be  regarded  as  a  valid  exercise  of  the  power 
to  jiii'.nge  the  route  conferred  by  said  pro- 
vision. In  re  i\e7u  York,  L,  &•  W,  A*.  Co., 
lo  Ant.  &•  Eng.  A'.  Las.  113,  88  A'.  Y,  279; 
affirm  hig  25  Hun  556. 

After  the  passage  of  the  resolution  these 
proceedings  were  instituted, as  prescribed  by 
said  act  (section  28,  subdivision  6),  to  fix  the 
place  of  crossing  of  the  road  of  the  N.  Y.,  L. 
E.  &  VV.  R.  Co.,  appellant.  It  was  objected 
that  such  proceedings  could  not  legally  be 
taken  until  the  petitioner's  route  had  been 
finally  located.  It  appeared  that  proceedings 
to  change  the  place  of  crossing,  instituted 
by  appellant,  were  pending  when  these  pro- 
ceedings were  commenced,  but  before  the 
order  was  made,  from  wl.xh  the  appeal  was 
taken,  the  prior  proceedings  had  been  ter- 
minated adversely  to  appellant.  Held,  that 
the  objection  was  untenable,  that  it  did  not 
go  to  the  jurisdiction,  and  the  former  pro- 
ceedings having  terminated,  the  order  was 
egular.  In  re  A'etv  York,  /,,  <&«•  \V.  K.  Co., 
10  Am.  &*  Eng.  A\  Cas.  113.  88  A'.  ]'.  279; 
affirming  25  Hun  556. 

Variations  in  a  route  over  which  a  rail- 
road may  run  do  not  affect  the  identity  of  a 
cori)orate  body  that  builds  it,  when  subse- 
quent  acts  are  amendatory  of  the  original 
charter,  and  give  permission  for  a  deflection 
from  the  line  first  projected;  and  the  right 
to  exemption  of  property  from  tax  g' mted 
in  the  original  charter  is  retained  unim- 
paired. Cher  aw  i5»  S.  A'.  Co.  v.  Coni'rs  of 
Anson,  17  Am.  &*  Eng.  A*.  Cas.  431,  88  N. 
Car.  519. 

A  railroad  company  authorized  to  change 
til"*  location  of  its  track  on  account  of 
"  difficulty  of  construction "  and  other 
cau.ses  may  do  so  at  any  time  before  the 
track  is  completed.  Atkinson  v.  Marietta 
&"  C.  A'.  Co.,  15  0/iii'  St.  21. —  Foi.i.uwiNt; 
Moorhead  v.  Little  Miami  R.  Co.,  17  Ohio 
340- 

The  charter  of  a  railway  company  con- 
ferred the  power  of  rc-location  and  an  ordi- 


nance of  a  city  was  passed  giving  the  com- 
pany permission  to  construct  and  operate 
its  road  in  and  over  certain  streets  of  the 
city,  and  over  a  bridge  to  be  built  at  a  cer- 
tain place,  and  such  ordinance  was  con- 
firmed by  an  act  of  the  legislature,  which 
conferred  the  same  power  as  the  ordinance, 
until  the  same  might  be  altered,  changed,  or 
amended  by  the  city  council,  with  the  con- 
sent of  the  company,  and  gave  such  power 
to  amend,  alter,  or  change  the  ordinance, 
with  the  company's  consent.  Held,  that 
such  company,  after  having  once  located 
and  built  its  road  within  the  city,  had  still 
ample  legitimate  authority,  with  the  con- 
sent of  the  city,  to  re-locate  its  track  within 
the  city,  and  take  up  its  former  track.  Ah- 
Cartney  v.  Chicago  &*  E.  A'.  Co.,  29  Am.  &* 
Eng.  A'.  Cas.  326,  112  ///.  611. 

10.  iiiidf'r  provisions  in  coii- 

truet  with  lainlo\viu>rs.— After  a  track 
has  been  located  and  built  the  parties  may, 
by  mutual  consent,  and  pursuant  to  an  oral 
agreement,  change  the  location  of  the  track, 
so  as  to  make  the  change  valid.  Alinneap- 
olis  &*  at.  L.  AV  Co.  v.  St.  Paul,  M.  *?«  M. 
A'.  Co.,  uf)  Am.  &*  Eng.  A'.  Cas.  638,  35 
Minn.  265,  28  X.  W.  A'ep.  705. 

A  court  of  equity  will  decree  the  change 
of  route  of  a  passenger  railway  where  a 
road  has  been  constructed  and  run  under  a 
joint  agreement,  and  authorize  theconstruc- 
tion  of  a  separate  triic  k,  if  in  accordance 
with  its  cor|)orate  rij^lits.  Thirteenth  6-  E. 
St.  Pass.  A'.  Co.  V.  Union  Pass.  A'.  Co.,  ij 
Phila.  (Pa.)  275.— Fui.i.owiNU  Union  Pass. 
k.  Co.  7'.  Continental  K.  Co,,  11  Phila.  321. 

Where  a  deed  conveying  a  right  of  way 
contains  a  condition  that  the  co-npany 
shall  be  at  "  liberty  to  make  such  flight  al- 
terations ill  the  route  now  surveyed  as  not 
materially  to  change  the  route  now  sur- 
veyed," and  afterwards  it  becomes  a  ques- 
tion whether  the  road  was  located  on  the 
land  conveyed,  evidence  of  the  situation, 
value,  and  condition  of  the  land  over  wliich 
the  road  was  originally  surveyed,  as  well  as 
that  where  it  was  actually  located,  is  admis- 
sible to  show  the  materiality  of  a  change  of 
location.  Carr  v.  Georgia  A'.  &^  U.  Co.,  i 
Ga.  524,— DlsTiNnuisHK.n  in  Itutman  v. 
Vermont  C.  R.  Co.,  27  Vt.  500. 

A  company  were  allowed  five  years,  under 
their  charter,  to  construct  their  railroad,  by 
making  and  filinj.,  their  location  with  the 
county  commissioners  of  mjiities  through 
which  it  passed  on  or  before  December  31, 


LOCATION   OF    ROUTE,  20,21. 


361 


1850.  After  they  made  a  survey,  and  staked 
out  the  track  across  plaintitl's  land,  but  be- 
fore it  was  accepted  and  filed,  the  company 
purchased  of  him  six  rods  in  width  of  his 
land,  and  took  a  deed  of  the  same,  in  which 
it  was  described  as  "covered  by  the  location 
of  the  said  railroad,  or  that  may  finally  be 
CDVcred  by  such  location."  Afterward? 
uiuler  the  authority  of  the  legislature,  a 
further  time  was  granted  to  the  company 
to  tile  their  location,  and  they  made  a  dif- 
ferent one  across  the  plaintiff's  land,  and  ac- 
cepted and  filed  the  same,  on  which  the 
road  was  constructed.  NM,  tiiat  the  com- 
pany obtained  no  rights  in  such  new  loca- 
ti(jii  under  the  deed,  f/a//  v.  Pickering,  40 
M,:  548. 

2<K  BiKlit  to  ninkc  new  location 
dciiird. — Where  a  company  has  fixed  the 
terminal  point  of  its  road  in  a  town  or  city, 
it  cannot  afterwards  change  the  location. 
It  may  have  a  discretion  as  to  its  terminal 
or  the  selection  of  its  intermediate  points  ; 
but  when  this  power  of  location  is  once  ex- 
ercised, it  is  exhausted,  and  the  company 
cannot  change  the  location  without  legisla- 
tive authority.  Illinois  C.  A'.  Co.  v.  People, 
143  /'/.  434.  33  A'.  E.  Rep.  173. 

Where  a  company  is  chartered  to  build  a 
railroad  between  designated  points  and 
take  land  of  a  designated  width,  after  the 
roiul  has  been  constructed  and  in  operation 
it  has  no  power  to  make  a  new  location 
or  lay  a  branch  road  not  included  in  the 
original  plan.  Morris  «5-«  E.  R.  Co.  v.  Cen- 
tTitl  R.  Co.,  31  A'.  /.  /,.  205.  — PlSTIN- 
oi'lsHKi)  IN  State  (Mayor,  etc.,  of  Jersey 
City,  Pros.)  v.  Montclair  U.  Co.,  35  N.  J.  L. 
yJi ;  Atlantic  &  P.  R.  Co.  v.  St.  Louis,  66 
M...  228. 

U'Iktc  the  charter  of  a  railroad  company 
ri'(niires  the  whole  line  of  the  road  to  be 
surveyed  and  located,  and  the  certificate  of 
location  to  be  filed  in  the  clerk's  office,  be- 
fore the  commencement  of  the  work,  the 
corporation  is  not  authorized  to  change  the 
route  of  its  mad  after  it  has  been  once  lo- 
cated, and  ii  certificate  of  such  location 
made  and  filed.  Hudson  &*  I).  CanalCo.  v. 
AWi'  York  &*  E.  R.  Co.,  9  /\i/ge  (JV.  V.) 
3^V 

Whore  the  act  of  incorporation,  or  articles 
of  association,  prescribe  the  limits  withi- 
winch  a  railro.id  company  shall  construct 
its  road,  it  cannf)t,  even  under  section  23  of 
the  N.  Y.  General  Railroad  Act,  alter  or 
change  the  route  after  it  has  been  located 


so  as  to  transcend  those  limits :  at  least  not 
without  releasing  previous  subicn'bers  for 
stock  who  have  not  consented  to  such 
change.  Buffalo,  C.  &*  N,  Y.  K.  Co.  v.  Pot- 
tle, 23  Barb.  (;V.  F.)  21. 

Where  a  charter  gives  a  company  the 
right  to  vary  its  route  and  change  its  loca- 
tion whenever  a  better  or  cheaper  route  can 
be  had,  or  whenever  the  road  is  found  dif- 
ficult of  construction,  or  the  right  of  way 
cannot  be  procured  at  reasonable  cost,  the 
company  is  not  authorized  to  re-locate  its 
road  after  once  completing  it,  and  condemn 
private  property  for  that  purpose ;  and  if  it 
attempts  to  do  so,  a  court  of  chancery  may 
enjoin  it.  Moorhead  v.  Little  Miami  R, 
Co.,  17  Ohio  340.— Distinguished  in  Ham- 
ilton V.  Annapolis  &  i£.  R.  R.  Co.,  1  Md. 
553 ;  Toledo  &  W,  R.  Co.  v.  Daniels,  16 
Ohio  St.  390.  Followed  in  Atkinson  v. 
Marietta  &  C.  R.  Co.,  15  Ohio  St.  21.  Re- 
viewed in  Mississippi  &  T.  R.  Co.  v. 
Devaney,  42  Miss.  555.  2  Am.  Rep.  608. 

2 1 .  because  cliurter  power  luis 

been  exhauHted.*— When  a  corporatio.i 
chartered  for  the  purpose  of  constructing 
a  railway  has  located  its  line,  it  cannot 
change  the  location  and  adopt  a  new  route, 
unless  the  power  to  do  so  is  expressly 
granted  in  its  charter,  and  then  only  in  the 
manner  indicated.  When  the  power  thus 
conferred  upon  a  company  has  once  been 
exer.i.  '1  it  is  exhausted.  Mason  v.  Brook- 
lyn Ctlji  *>•  A'.  R.  Co.,  35  Barb.  (A'.  )'.)  373. 

When  the  charter  of  a  railroad  company 
merely  fixes  a  few  points  through  which  a 
road  is  to  pass  from  its  commencement  to 
its  terminus,  leaving  the  location  of  the 
road,  between  the  points  specified,  to  the 
discretion  of  the  corpr)ration,  the  company 
having  once  located  the  road,  their  power 
to  re-locate,  and  for  that  purpose  to  appro- 
priate the  property  of  an  individual,  or  oc- 
cupy a  street,  has  ceased.  Little  Miami  R. 
Co.  V.  Naylor,  2  Ohio  St.  235.  — DISTIN- 
GUISHED IN  Toledo*  W.  R.  Co.  v.  Daniels, 
16  Ohio  St.  390.  Reviewed  in  Kincaly  ta 
St.  Louis.  K.  C.  &  N.  R.  Co.,  69  Mo.  658. 

The  charter  of  a  railro.id  company  em- 
powered it  to  locate  its  railroad  and  to  file  its 
location  in  court,  to  alter  the  location  after 
filing,  and  "to  make  a  new  location  in 
whole  or  in  part."    A  limit  of  time  was  fixed 


S   1: 


■I:; 


•Derisive  act  of  rompany  in  fixing,  location 
anil  ti-rniini ;  rxhaustion  of  powers,  see  note, 
4  Am.  &  Gno.  R.  Cas.  11)9. 


,^  i 


'm 


3Cv 


LOCATIOa    of    route,  2ti-2tt. 


within  wliicti  the  road  was  to  l>e  completed. 
The  road  was  built  atid  uperiitcd  by  the 
company  under  the  charter.  Twenty-live 
years  afterwards  an  amendment  to  the  char- 
ter aulhori/.cd  the  construction  of  a  branch 
road,  as  provided  by  statute,  or  by  the  char- 
ter and  its  amendments.  Under  tliis  amend- 
ment a  location  of  the  branch  road  was  made 
and  abandoned,  ar.d  a  re-location  made,  a 
part  of  which  was  over  the  railroad  prop- 
erly of  another  company.  This  latter  com- 
pany permitted  the  use  of  its  property  by 
tiu!  former  at  first  by  license  and  then  by 
formal  lease.  Nineteen  years  later  another 
location  of  a  part  of  this  branch  road  was 
filed.  Held,  that  the  charter  powers  to  lo- 
cate were  exhausted  before  tiie  last  loca- 
tion. Petition  of  Providence  &•  W,  R.  Co., 
17  A'.  /.  324,  21  Atl.  Hep.  965. 

22.  Notice  of  upplieatioii  for 
clian{;c>.| —  The  notice  rccpiired  by  New 
York  Act  of  1850,  ch.  140,  §  22,  as  amended 
in  i87i,of  a  proposed  change  in  the  route 
of  a  railroad  must  be  personally  served. 
Notice  left  with  the  wife  of  a  landowner  at 
his  dwelling  house,  he  being  absent  from 
home,  but  in  the  state,  is  not  sulhcient; 
neitlier  is  notice  to  one  of  two  or  more 
partners  sufiicient.  People  ex  rel.  v.  Lock- 
port  <S-  />•.  A'.  Co.,  13  Hun  {X.  1.)  211. 

2:1.  Validity  of  ai;rceiiH>iit  to 
c'liaiige  route.  —  Where  a  construction 
company  contracts  with  a  railroatl  company 
to  locate  and  construct  the  latier's  road  "  by 
the  nearest,  cheapest,  .Mid  most  suitable 
route "  between  two  points  for  a  certain 
sum  per  mile,  an  agreement  by  which  a 
manufacturing  company  agrees  to  Omuite 
lands  for  right  of  way,  etc,  and  pay  a  sum 
to  the  construction  company  in  i.msidcr- 
ation  of  the  latter  changing  the  route  so 
as  to  deviate  some  miles  from  the  shortest 
and  most  suitable  route,  and  to  cause  the 
road  to  pass  through  a  town  in  the  develop- 
ment of  which  the  manufacturing  company 
is  interested,  is  contrary  to  public  policy, 
and  a  fraud  upon  the  public,  and  cannot  be 
enforced.  ]}'oodstock  Iron  Co.  v.  Richmond 
&*  D.  Extension  Co.,  3«S  ylni.  &*  f'-ng.  A',  dis. 
683,  129  U.  S.  643,  9.SV//.  Ct.  A'</.  402. 

24.  Kflfert  of  4'liaii);e  of  route.— 
Where  a  company  changes  the  line  of  their 
road,  the  change  operates  as  an  abandon- 
ment by  them  of  the  land  uf)on  the  line 
deviated  from,  so  that  thty  can  no  longer 
claim  any  right  or  interest  in  said  land,  or 
in  any  easement  {.jrowing  out  of  it.     Stucey 


V.  Vermont  C.  A'.  Co.,  27  Ft.  39,— FoLLOw- 
IN(i  Com.  V.  Westborough,  3  Mass.  406 ; 
Com.  V.  Cambridge,  7  Mass.  163. 

▼.  RIVAL  L0CATI0H8. 

25.  Ill  general.— Under  Pennsylvania 
Act  of  April  4,  1868,  wlieii  a  railroad  cor- 
poration has  ascertained  and  located  its 
road,  such  location  secures  to  the  com|)aiiy 
the  right  of  way,  and  another  company  can- 
not come  in  and  take  such  route  by  any  ar- 
rangement with  the  landowners.  I'itusvilU 
6-  /'.  f.  A'.  Co.  V.  Warren  Sr*  I'.  A'.  Co.,  12 
J'/ii/a.  (Pa.)  642. 

As  against  a  landowner,  a  railroad  com- 
pany can  acquire  only  a  conditional  title  by 
Its  act  of  location,  which  ripens  into  an  ab- 
solute title  upon  making  compensation  ;  but 
as  to  third  persons  and  rival  corporations, 
the  action  of  tiie  company  in  adopting  a 
definite  location  is  enough  t(  ;;ive  it  title. 
H'illiain sport,  &-  A'.  />'.  A'.  Co.  v.  P/itl,i- 
delphia  «&-  E.  A'.  Co.,  47  ///;/.  iSr-  Alnt;;.  A'. 
Cas.  224,  141  Pa.  .St.  407,  21  Atl.  Kep.  645. 

2U.  Wiiat  aiiioiiiitH  to  miicIi  a  loca- 
tion tiM  to  ifive  iiriority.*— When  tlu-ic 
is  a  question  of  location  between  two  riv.il 
railway  companies,  that  which  has  first 
made  a  survey  and  staked  out  a  centre  line 
is  entitled  to  a  priority  <.i  right.  Davis  v. 
Titusville  Sr*  O.  C.  A'.  Co.,  30  Atn.  &»  Eny;. 
a:  Cas.  341,  114  /'a.  St.  308,  C  Atl.  A'ep.  736. 

When  a  ctirporation  nas.  iiS  required  by 
the  New  York  General  Kailroud  Act  of 
i8jo,  made  and  filed  a  map  and  survey  of 
the  line  of  route  it  intends  to  adopt  for  the 
construction  of  its  road,  and  has  given  the 
required  notice  to  all  persons  affected  by 
such  construction,  and  no  change  of  route 
is  made,  as  the  result  of  an)  proceedings  in- 
stituted by  any  landowner  or  occupant,  sui  h 
corporatit)n  has  accpiired  a  right  to  con- 
struct and  operate  a  railroad  upon  such  line 
in  the  nature  of  a  lien  u[)on  the  lands  wliii  li 
ripens  into  title  through  purchase  or  con- 
demnation proceedings,  and  which  is  exclii- 
iiive  as  to  all  other  railmad  corporations, 
and  free  from  the  interference  of  any  party. 
A'oc/iester,  //.  &^  L.  R.  Co.  v.  Xav  Vcrk.  L. 
/i.-S-  W.  R.  Co.,  35  Am.  &^  Kn^.  R.  Cas.  267, 
no  A',  v.  128,  13  Cent.  Rep.  232,  17  X.  /•.. 
Rep.  680,  16  A'.  }'.  .S'.  A'.  838;  affirmini;  44 
Hun  206,  8  A'.  Y.  S.  R.  237.— (Ji;otkI'  in 


•  What  is  suftiiiciu  location  of  a  railroad  to 
prevent  a  rival  company  from  approprl,-»linj{, 
see  note,  12  L.  K.  A.  230. 


LOCATION   OF    ROUTE,  27-30. 


3C3 


'"O 


ll;iirc  R.  Co.  V.  Montpclicr  &  W.  R.  R.  Co., 
6i  Vt.  1. 

A  railroad  company,  by  causing  the  loca- 
tion of  its  road  to  be  recorded  in  the  proper 
oiricc,  acquires  a  prior  right  to  construct  its 
mail  on  the  line  of  such  survey,  as  against 
another  company  which,  subse(|uent  to  such 
record,  but  before  the  condemnation  of  the 
land,  has  purchased  it  from  tiie  owner. 
n,uri-  A'.  Co.  V.  Montpclier  &*  IV.  A'.  A'.  Co., 
y)  Am.  &•  Ln^.  A'.  Cas.  17,  61  I't.  1,  4 /,. 
A'.  ,/.  785.  17  A//.  Hffi.  923.— Quoting 
Rochester,  H.  &  L.  R.  Co.  v.  New  York,  L. 
i    k  W.  R.  Co.,  iioN.  Y,  128. 

A  contract  tu  sell  the  land  over  which 
such  location  is  made  to  another  company, 
wiiich  is  not  recorded,  and  of  which  the  lo- 
cating company  has  no  notice,  docs  not 
alter  the  rights  of  the  parties,  although  such 
contract  was  made  before  the  location  was 
recorded.  Havre  R.  Co.  v.  Montf>i'liir  &* 
/('.  A".  A'.  Co..  39  Am.  &*  Eng.  A'.  Cas.  17, 
61  r/.  1.4  L.  A'.  A.  785,  17  All.  AV/.  923. 

27.  What  docM  not.— Where  a  com- 
pany has  been  chartered  some  sixteen  years, 
and  has  filed  a  map  of  its  proposed  route 
some  fourteen  years  before,  but  has  only 
oinained  subscriptions  to  a  small  proportion 
of  its  capital  stock,  and  has  not  actually 
constructed  any  part  of  its  railroad,  and  has 
ac(|uired  but  little  land  for  a  right  of  way, 
it  will  not  be  awarded  an  injunction  to  re- 
strain another  company  from  occupying  the 
route,  where  it  has  a  large  paid-up  capital, 
and  is  proceeding  with  the  utmost  speed  to 
lonstruct  its  road.  AWf  York  &*  A.  A'.  Co, 
V.  .\,w  iWl;  W.  S.  6-  /i.  A'.  Co.,  1 1  AM.  A'. 

Cu.  i.w  y.)  386. 

A  company  which  has  filed  a  map  of  the 
nuitc  of  its  road  cannot  prevent  another 
comiiany  from  constructing  its  road  on  land 
which  it  already  owns  until  it  condemns 
tlie  same  or  purchases  it.  Xiiv  )'ork  5^  A. 
/\.  in.  V.  Xirtu  York.  IV.  S.  &»  ii  A.  Co.,  11 
A/</'.   V.  Cas.  (A'.  Y.)  386. 

The  making  of  a  location,  so  as  to  give 
title  to  one  railroad  company  as  against  an- 
other, inv(jlvcs  some  corporate-  action  on 
the  |)ait  of  the  company  establishing  and 
adopting  some  elctiniie  route;  an  eiigineei 
ulune,  by  surveying  and  making  a  line,  can- 
not make  a  location  and  etTcct  a  valid  ap- 
propriation of  the  land.  Williamsport  Sr* 
\\  /.'.  A',  Co.  v.  Philaddphia  &•  E.  A'.  Co., 
47  Am.  ,5-  AV^'.  /f,  Cas.  324,  141  /'a.  Sf. 
407,  21  A//.  Kefi.  645. 

Wliercfure.  when  the  chief  engineer  of  a 


railroad  company  surveyed  and  staked  out 
the  centre  line  of  a  proposed  railroad,  and 
returned  a  map  thereof  to  the  office  of  the 
company,  but  no  action  was  t.^,ken  by  the 
board  of  directors  adopting  the  location, 
the  act  of  the  engineer  conferred  no  title  as 
against  a  rival  corporation.  \Vi Ilia  import 
^  N.  li.  A'.  Co.  v.  ;  tiiUfhlphia  &^  K.  K. 
Co.,  47  Am.  &*  Etix.  A'.  Cas.  224.  141  J  .t.  .s'A 
407,  21  .-///.  AV/.  645. 

In  such  case,  in  the  absence  of  a  location 
of  its  right  of  way  by  corporate  action,  a 
railroad  company  has  no  standing  to  ask 
for  an  injunction  restraining  another  com- 
pany from  proceeding  regularly  to  appro- 
priate land  for  its  roadway,  even  though 
the  land  in  question  may  be  ownetl  by  the 
plaintiflf  company.  W'illiamsporl  «S-  .\'.  B. 
A'.  Co.  V.  Pliilailelphia  &»  E.  A'.  Co.,  47  .Im. 
6^  Ehj,'.  A'.  Cas.  224,  141  Pa.  >'/.  407.  21  .-///. 
AV/.  645.  See  also  Appeal  of  A'tTi'  lin);hton 
6-  A'.  C.  A\  Co.,  105  /'a.  S/.  13. 

28.  Two  roiulM  niiiiiiiiK  hctwcrii 
Miinic  teriiiiiii.  — Where  two  railroad  com- 
panies have  the  authority  to  build  and  run 
a  railroad  between  the  same /i;;///'«/'.  neither 
can  take  exception  to  any  irregularity  or 
unlawfulness  in  the  exercise  of  such  fran- 
chise by  the  other,  unless  it  can  show  a 
particular  injury  to  itself  from  such  course. 
Eru  A'.  Co.  V.  l)elaii>art',  I..  »&>•  /f.  A".  Co., 
21  N.J.  El/.  283. 

2fK or  uiitlioriziMl  to  iih«>  niiiiu; 

Htrcet. — Where  two  companies  have  the 
right  to  lay  their  tracks  along  a  certain 
street,  the  company  which  first  actually 
takes  possession  by  constructing  its  track 
acquires  the  right  u>  complete  its  construc- 
tion to  the  exclusion  of  the  other  company. 
iraUrhiipy  v.  Dry  JWk,  E.  />'.  tl~  />'.  A".  Co., 
54  /{arl>.  (N.  )'.)  388,  32  //07t>.  J'r.  193;  rt- 
ru-rsnijf  30  //o7t'.  Pr.  39. 

iiO.  liifrlit  to  niuktf  iiH<>  of  prior  loea> 
tioii.— A  com|wny  may  be  authorized  to 
locate  its  route  so  as  to  take  lands  already 
appropriated  by  another  companv ;  but  in 
doing  so  no  unnecessary  damage  should  be 
done  to  the  existing  company  or  the  public. 
AWt'  York.  II.  <;^  A'.  A'.  Co.  v.  Boston,  H.  &» 
E.  A'.  Co.,  36  CoHti.  196. 

A  statute  authorizing  the  construction  of 
a  railroad  between  certain  ttrmini.  without 
tiescribing  its  I'oiicse  bni  leaving  that  to  be 
determined  by  the  cor[)oratiiin  as  |)rovided 
by  the  general  Inws.  does  not,  prima  facie, 
confer  power  to  lay  out  the  road  over  land 
already  devoted  to,  and  within  the  recorded 


jK^fl 


s 


tm 


I 


3G4 


LOCATION   OF   ROUTE,  31.— LOS  ANGELES. 


location  of,  another  railroad.  Housatonk 
R.  Co.  V.  Lee  6-  //.  A'.  Co.,  118  lUass.  391.— 
(JvuiED  IN  Alexandria  &  F.  K. Co.z/.  Alex- 
ai.Jria  i  W.  K.  Co.,  75  Va.  7S0.  RKVitwtu 
IX  Lewis  V.  Gcrinaiitown,  N.  &  P.  K.  Co., 
16  Phila.  (Pa.)  621. 

Mass.  Act  of  iS7-^.  ch.  372.  ^§  23-3".  au- 
thorizing tlie  construction  of  extensions  of 
roads,  npon  agreeing  with  the  Lioard  of 
railroad  commissioners  as  to  crossings,  and 
with  the  selectmen  of  a  town  or  the  mayor 
and  aldermen  of  a  city  as  to  the  locaiion,, 
does  not  authorize  a  railroad,  except  upon  a 
grant  from  the  legislature,  wiiliin  the  loca- 
tion of  the  lands  of  another  railrt  ad  com- 
pany. Bos/on  &^  M.  R.  Co.  v.  Lowell  &»  L, 
A'.  Co.,  124  Mass.  368.— Apflvi^-g  Worcester 
&  N.  R.  Co.  V.  Railroad  Com'rs,  118  Mass. 
561.  Quoting  Housatonic  R.  Co.  v.  Lee 
&  H.  R.  Co..  118  Mass.  391.  —  Distin- 
ciUi.sHEu  IN  Baltimore  &  O.  R.  Co.  v. 
Pittsburg.  VV.  &  K.  R.  Co..  10  Am.  &  Eng. 
R.  Cas.  444,  17  W.  Va.  812.  Followed  in 
St.  Paul  Union  Depot  Co.  v.  St.  Paul,  30 
Minn.  359;  Barre  R.  Co.  v.  Mont,.v.'Iier  & 
W.  R.  R.  Co., 61  Vt.  I.  Reviewed  in  Lewis 
V.  Germantown,  N.  &  P.  R.  Co.,  16  Phila. 
(Pa.)  621 ;  Petition  of  Providence  &  W.  R. 
Co.,  17  R.  L  324. 

One  railroad  corporation  is  not  empow- 
ered under  the  General  Railroad  Act  (Mont. 
Rev.  St.  1879,  div.  5,  art.  3,  ch.  15)  to  pass 
upon  the  necessity  for  taking  or  using  the 
roadbed  or  right  of  way  built  or  secured  by 
Uiiother  company  through  a  canyon  or  defile; 
such  necessity  is  a  question  for  decision  in 
the  district  court  of  the  county  in  which 
the  canyon  is  located.  Montana  C.  A'.  Co.  v. 
Jlf/fna  <S-  A'.  M.  R.  Co..  6  Mo»t.  416,  12  Pac. 
Rip.  916.  — Quoting  Denver  &  R.  G.  R. 
Co.  V.  Denver.  S.  P.  &  P.  R.  Co.,  17  Fed. 
Kcp.  867. 

:il.  Qiiostioii  for  Jury  in  contest 
bt'twcM'u  rival  lofatioiiN.— It  is  proper 
to  submit  to  the  jury,  in  a  contest  between 
lw(j  locations,  whether  in  point  of  fact  a 
location  on  tile  was  made  in  a  book  of  en- 
tries kept  for  thfit  purpose  in  the  proper 
otlice;  the  date,  as  shown  in  an  entry  in  a 
memorandum  book  of  the  surveyor,  being 
insiste<i  on  as  determining  the  true  date  of 
tlic  entry.  Houston  &>  T.  C.  R.  Co,  V.  Mc- 
(Jt'/iee,  49  Tex.  481. 


Emime.nt    Domai.n,    83i};    New    Trial, 

14. 
View  of,  in  criminal  cases,  see  Criminal  Law, 

8. 
proceedings  to  assess  damages,  see 

Eminent    Domain,    511,    504-071,; 

Trial,  45. 

See  also  Premises. 


LONG  AND  SHORT  HAULS. 
Regulation  of  rates  for,  see  Charges,  34- 

UU. 
Discrimination  as  to,   see    Discrimination, 

i{7-41  ;  Interstate  Commerce,  lOtt- 

lUO. 


LOOK  AND  LISTEN. 

^uty  to,  ste  Cakkiaue  of  Passengers,  303, 
453;  Collisions,  1£3  ;  Contributory 
Nec:i:oence,  30;  Crossings,  Injuries, 
ETC,  AT,  231-307  ;  Death  by  Wrong- 
KUi  Act,  IW4,  1115;  Employi's,  Inju- 
ries to,  325-32U :  Licensees,  Injuries 
to,  27  ;  SiATioNs  ANU  Dei'ots,  115; 
Strket  Railways.  490,  lOl ;  Trespass- 
ers, I.njukiesto,  105-1  >7. 

Failure  of  child  to,  when  contributory  neg- 
ligence, see  Ciiii.DKEN,  Injuries  TO,  82. 

Instructions  as  to  failure  of  traveler  to,  see 
Crossings,  Injuries,  etc.,  at,  3ti0« 

LOOKOUT. 
Duty  to  keep,  see    Animals,   Injuries   to, 
((2-«4,    120,  104,   105;  Children, 

Injuries  to,  3,  4,  37,  62 ;  Crossings, 

Injuries,  etc.,  at,  104--107;  Emi-i.oyks, 

Injuries   to,    158;    Street   Railways. 

4(Mt,    407 ;  Trespassers,   Injuries  to, 

44-5 1 . 
look  and  listen  as  affected  by  failure  to 

provide,  see  Crossings,  Injuries,  etc.,  at, 

2»7. 
Instructions  relating  to  duty  to  keep,  see 

Animals,  Injuries  to,  503. 
Keeping  inefficient,   when    negligence,    see 

Nk.i-.i  ioence,  25,30. 
Negligence   in  regard  to,  when  question  of 

fact,  see   Animals,    Injuries    to,    540 ; 

Empi.oy#,s,  Injuries  to,  0I>7. 
Requirement  of,  in  cities,   see  Streets  and 

Highways,  ,338. 
Sufficiency  of  evidence  of  failure  to  keep,  see 

Animals,  Injuries  to,  450. 


LOCUS  IN  QUO. 

Irregularity    connected    with    view    of,    as 
ground  for    setting   aside    verdict,    sec 


LOS  ANGELES. 
Decisions  particularly  applicable  to,  see  Mo- 
NiciPAL  Corporations,  42. 


LOST   INSTKUMENTS-LYNCHBURG. 


obJ 


LOST  INSTRUMENTS. 
Actions    on,  see    Bonds,    03 ;    Contracts, 
102 ;  Coui'ONs,  22. 


LOST  TICKETS. 
Rights  of  passenger  in  cases  of,  see  Tickets 
AND  Fakes.  12,  OO. 


LOTTERIES. 

1.  Ill  aid  of  mil  ways  iiiidcr  Mo. 
Act  of  1839.— The  Act  of  ilio  General 
Assembly  of  February  8,  1039  (Sess.  Acts 
1839,  p.  311),  entitled  "An  act  to  amend 
'an  act  to  incorporate  the  town  of  New 
Franklin,' approved  January  16.  1833,"  only 
repealed  so  much  of  the  seventh  section  of 
the  amended  act  as  provided  that  the 
board  of  trustees  of  New  Franklin  should 
liiive  power  to  raise  by  lottery  a  sum  of 
money,  not  excefsding  $15,000,  for  the  con- 
struction of  a  railroad  from  the  bank  of 
the  Missouri  river  to  the  town  of  New 
Franklin.  The  object  of  the  act  of  1839 
was,  not  to  overthrow  the  power  in  raise 
money  by  lottery,  but  to  di\'ert  the  applica- 
tion of  the  money  so  to  be  raised  from  the 
construction  of  a  railroad  to  that  of  a 
macadamized  road.  The  trustees  of  New 
Franklin  were  authorized,  after  the  passage 
of  the  art  of  1839,  to  contract,  as  provided 
for  in  the  third  section  of  the  act  of  Feb- 
ruary 26,  1835  (Sess.  Acts  18^5,  p.  56;,  with 
any  person  to  have  said  hjttery  drawn  in 
any  part  of  the  United  States,  etc.  S/ati; 
v.  Morrow,  26  Jo,  131, 

2.  iiiKler  Mo.  Art  of    1855.— 

Tiie  general  assembly,  by  an  act  passed  in 
December,  1855,  enacted  "  that  all  contracts 
made  by  the  trustees  of  the  town  of  New 
Franklin,  lor  the  purpose  of  raising  the 
amount  authorized  in  the  act  of  incorprira- 
tion,  be,  and  the  same  are  hereby  declared 
to  be,  legal,  and  may  be  carried  out  accord- 
ing' to  the  true  intent  and  meaning  of  the 
pMrties  thereto"  At  the  time  of  the  pas- 
saj^e  of  this  act  but  two  contracts  had  been 
made  by  the  trustees,  one  in  1842,  and  the 
other  in  1849;  and  long  prior  to  its  passage 
the  contract  of  1842  had  been  declared 
valid  by  the  judgment  of  this  court.  Held, 
that  the  state,  by  the  act,  intended  to  re- 
move doubts  as  to  the  validity  of  the  con- 
tract made  by  the  trustees  in  1849,  and 
thereby  ratified  the  same ;  and  that  a  sub- 
sequent ratification  by  the  state  of  a  con- 
tact made  by  one  of  its  own  agencies  is 


equivalent    to    a    previous     autlioririatiun. 
State  ex  rei.  v.  MilUr,  60  Mo.  32S. 

The  act  of  1855  is  not  uunuxious  to  the 
constitutional  objection  that  it  is  retrospec- 
tive in  its  operation ;  the  slate,  as  one  of 
the  contracting  partici,  had  the  same  right 
to  consent  to  the  modification  of  the  con- 
tract njade  in  1849  as  it  had  to  confer  orig- 
inal authority  on  the  town  of  New  Frank- 
lin through  its  trustees  to  enter  into  the 
contract  of  1842.  State  ex  rei.  v.  Miller,  66 
iMo.  328. 


LOUISIANA. 

Aid  to  railways  by  the  state,  see  Siate  Aid, 
10-22. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 202. 

Civil  rights  acts  of,  sec  Coiokkd  Persons,  2. 

Constitutional  provisions  in,  relative  to  con- 
demnation of  land,  see  Eminent  Domain, 
11. 

Constitutionality  of  statutes  of,  as  to  mu- 
nicipal aid  for  railways,  see  Municipal 
AMI  Local  Aid,  34. 

tax  laws  of,  sn  Taxation,  29. 

Deductions  for  benefits  under  condemnation 
laws  of,  see  Eminem  Domain,  737. 

Federal  grants  to,  see  Land  Grants,  31. 

License  taxes  in,  see  Taxation,  390. 

Local  assessment  upon  steam  railways  in, 
for  repairs,  paving,  etc.,  see  Streets  and 
lliciiwAYs,  347. 

Occupation  of  streets  by  steam  roads  under 
legislative  grants  of,  sec  Streets  and 
UniiiwAYs,  45. 

Operation  of  statute  of,  giving  right  of  ac- 
tion for  causing  death,  see  Death  by 
Wkonciui.  Act.  21. 

Rule  in,  as  to  imputed  negligence,  see  Im- 
puted Neciioknce,  9. 

limitation  of  liability  for  negli- 
gence, see  l.IMII ATION  OK  LlAlllLII V,  34. 

Taxation  in  aid  of  railways  in,  see  Municipal 
AND  Local  Aid,  415. 


LOW  BRIDGES. 

Awsumption  of  risk  as  to,  see  Employes,  In- 
juries TO.  189,  2:18. 


LUMBER. 

Contributory  negligence  in  placing  on  right 

of  way,  see  FiKKs,  134. 
When  subject  to  taxation,  see  Taxation,  90. 

LYNCHBURG 

Decisions  particularly  applicable  to,  see  Mu- 
nicipal Cckpokai  n  \^.  4.'{. 


3d6 


MACHINERY— MAINE. 


M 


S'l 


MACHINERY. 

Alleging  neKligence  in  furniihing  defective, 
see  Emi'I.ovks.  Injukies  tu,  5:S4-0!il, 

Assumption  of  risk  as  to,  see  Emi-lovks,  In- 
jiHiKs  TO,  lUl.  1112,  211,  218, 
712. 

Burden  of  proof  to  show  company's  negli- 
gence with  respect  to,  sue  Emi-loyus,  In- 
jiKiKs  r<>,  nU'2, 

Competency  of  evidence  as  to  safety  of,  see 

I'.VM'KNCK,  M0-W7. 

Concurring  negligence  of  company  and  fel- 
low-servants with  respect  to,  see  Fkl- 

I.OW-SKKVAMS,  (I4-<M>. 

Contributory  negligence  of  employes  in  the 
operation  of,  sec  Emiloyks,  I.njukie^  tu, 

:(4l-:t»5. 

Outy  of  company  as  to,  sec  Animals,  Inju- 

—  to  employes  as  resoects  safety  of,  see  Em- 

ll'iYKS     InJI  KIKS   It),  \Hi-in4:. 

instruct  employe  as  to  operation  of,  see 

I'.Mri.ovKs,  Inji'kiks  to,  1{4,  403. 

Hvidence  of  failure  to  furnish  safe,  see  Em- 
I'l.oYKs,  Injukiks  to,  ao<(-5<l1). 

E>£perience  in  handling,  when  qualities  ex- 
pert, see  VViTNKssKS,  150. 

Explosions  of,  sec  Exri.usioNs,  3. 

For  making  or  mending  rails,  patents  for, 
see  I'atknts  i-ok  Invkniions,  4!<. 

—  manufacturing  purposes,  special  damages 

for   loss    of,   sec    C'AKKIAUh   OK   Mkkcman- 
DISK.  801. 

Inspection  and  repair  of,  duty  of  company  as 

to,  sec    Emim.ovks,    Injuries   to,    143- 

1A4. 
Judgment  and  skill  required  in  selection  and 

use  of,  see  NKci.itiKNCK,  17. 
Liability  of  company  for  failure  of  viceprin- 

cipal   to  furnish  safe,    see   Fri.i.(iw>sek- 

VANTS,  04, 1>5. 
independent  contractor  for  defects  in, 

sec  In.iKIK.NKKNT  CoMKAi  lOKS,    III, 

—  to  trespassers  for  dangerous  condition  of, 

see  Trksi'Asskks,  Inji'HIEm  ro,  7M. 

Negligence  in  failing  to  furnUh  safe,  ques- 
tion for  jury,  see  Empi.ovu,  Injuries  to, 
081-<t1>l. 

Non-liability  for  negligence  of  fellow-s«r> 
vants  >n  use  of.  sec  Fei.i.owskrvants, 
1.V17. 

Notice  of  dtffects  in.  assumption  of  risk  after, 
sec  l-.Mii.'VKs,  Inm'riks  ro,  238-243. 

Presumption  of  negligence  from  proof  of  de- 
fects in,  tee  Emi'Lovu,  Injuries  tu, 
027. 


Promise  by  company  to  repair  defects  in,  see 

EmI'I.OYKS,   I.NJl'KIES  TO,   2i>8. 

Sufficiency  of  evidence  to  show  defects  in, 
see  Emi'Luves,  Inji  kies  to,  OOll. 


MACH.TNISTS. 
As  experts,  sec  Witnesses,  177« 


MACON. 
Decisions  particularly  applicable  to,  see  Mv- 

NICIi'AL  CORI'OKAI  IONS,  44. 


MAIL. 
Agents,  carriage  of,  sec  Carriage  of  Passbn- 
OEKS,  A4. 

—  limitation  of  liability  for  injury  to,  in  free 

pass,  sec  Passes,  311. 
Bags,  injuries  to  employes  in  throwing  out, 
see  Emi'i.oyes,  Injikies  ro,  170. 

—  liaLil'ty  to  passengers  struck  by,  see  Car- 

RiAoi.  uy  Passenoers,  278. 
Carnage  of  see  Cakriadk  uk  Mails. 
on  land-grant  roads,  see  Lanu-urant 

RaII.R  )A1>S.  5. 

Clerks,  rights  and  duties  of,  see  Carriage  ok 

Mams,  17-111. 
Cranes,  negligence  as  to  position  of,  see  Em- 

ii.ove's,  Inji'riks  io.  070. 
Matter,  right  of  express  company  to  carry, 

see  F.XI'KFSs  ("oMI'AMFs,  rt. 

Mortgages  of  claims  for  carrying,  see  Mort- 
<;a('.ks,  :»J. 

Notice  of  arrival  by,  sec  Carriaoe  ok  Mer- 
chandise, 227. 

assessment  by,   see  Subscrii'Tions  to 

Stock,  7 1. 

—  —  condemnation  proceedings  by,  see 
Eminent  Domain,  21MI. 

Trains,  injuries  to  employes  by.  see  Em- 
I'LOYKs,  Injuries  lo,  88. 


MAINE. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 2o;i. 

Constitutional  provisions  in  relative  to  con- 
demnation of  land,  see  Eminent  Domain, 
12. 

Constitutionality  of  statutes  of  as  tn  munici- 
pal aid  for  railways  -x-e  Mi  m<  ii  ai.  and 
I.ncAl.  Aii>,  3A. 

tax  laws  of.  see  Taxaiton,  JIO. 

Crossing  of  streets  and  highways  under 
statutes  of  see  Crossing  or  Strbbts  anu 

niOIIWAYS,  4. 


MAINTENANCE— MALICIOUS   PROSECUTION,  1-3. 


36T 


Grants  by,  to  railroads,  see  Land  Grants, 
118. 

Liability  of  company  to  laborers  employed 
by  contractors  in,  see  Cunstkuchun  up 
Kaii.wavh,  UU. 

Occupation  of  streets  by  steam  roads  under 
legislative  grants  of,  see  Stkkcts  anu 

IlKlllWAVS,  40. 

Review  of  town  bonding  proceedings  by 
mandamus  in,  see  Municii-al  and  Local 
All),  448, 

Rule  as  to  imputed  negligence  in,  see  Im- 

11  lEU  NKtiLltJKNCE,    1  O. 

Statute  of,   regulating  liability  for  injuries 

caused  by  hre,  sec  Fikes,  7. 
to  servant  for  injuries  caused  by 

negligence  of  fellow-servants,  see   Fcl- 

LOW -SKKVANIS,    184. 

relative  to  connecting  lines,  see  Con- 

NKCiiMi  Links,  2. 
Statutory  duty  of  company  in  construction  of 

street  crossing  railway,  si-c  CRusbiNu  OF 

SlKKhlS  AM)  lillillWWS,  08. 

to  fence  in,  see  Fk.N(  ks,  2ff. 

—  provisions  in.  limiting  amount  recovera- 

ble for  causing    death,   sec    Dkatii    iiy 
Wronuhi.  Act,  ilU7. 

—  regulation  of  grade  crossings  in,  see 
Crossing  uf  Stkkkts  anu  Highways, 
88. 


MAINTENANCE. 

Generally,  see  Ciiami'kkty,  4. 

Of  culverts,  sec  Cii  vrrts,  2- Iff. 

—  paupers,  liability  for,  see  Paupers,  1» 


rAJORITT. 

Validity  of  report  or  verdict  by,  in  condem- 
nation proceedings,  see  Eminent  Do- 
main, 5 Iff,  818. 

MALICE. 
Exemplary  damages  in  cases  of,  see  Car- 

HiACK  OK  Passkngkrs,  038;    Damages, 

3<>. 
In  prior  prosecution,  burden  on  plaintiff  to 

show,  see  Mai.icioi's  Proski.ution,  i%. 
Proof  of,  and  when  presumed  in  false  im- 
prisonment,   see    Fai.sk    Imprisonment, 

24. 
malicious  killing,  sec  Death  hv  Wrono- 

n  t  Act,  2«8. 
What  is,  and  how  proved,  see  Malicious 

Prosecution.  8. 

MALICIOUS. 

Acts,  of  conductor  in  ejecting  patungcr,  see 
EjKCTioN  OK  Passkngrrs,  ff7,  1  13. 


Acts  of  employes,  liability  of  company  for,  see 
Elk.vatku  Railways,  2 Iff. 

—  —  third  persons,  evidence  of,  see  Evi- 

UKNci:,  48. 

—  prosecutions  for,  see  Criminal  Law,  28. 


MALICIOUS  PROSECUTION. 

1.  >Vlieii  the  iivtloii  will  llv,  k«ii- 
crally.*— VVlien  u  criminal  prosecution  is 
instituted  by  u  raiiruud  corporation  through 
its  a^ents  and  attorneys  for  a  malicious  in- 
jury to  its  property,  the  person  in  its  em- 
ployment who  ^ave  the  information  whicli 
led  to  the  investigation,  and  made  the  afli- 
davit  on  whicli  the  warrant  of  arrest  was 
issued,  is  not  in  any  sense  the  prosecutor. 
Jordan  v.  Alabamti  G,  S.  K.  Co.,  8i  Ala. 
220,  8  So.  Rfp.  191. 

VViiere  an  aciion  for  a  malicious  prosecu- 
tion is  brou(;ht  jointly  a^^ainst  a  corporation 
and  its  servant,  the  latter  will  be  liable, 
though  he  obeys  the  orders  of  his  employer 
in  preferring  the  charge,  if  at  the  same  lime 
he  is  shown  to  have  acted  maliciously  and 
without  probable  cause.  Stevens  v.  Midland 
Counties  A'.  Co.,  lo  £>.  353,  3  t".  L.  A.  1300,  iS 
Jitr.  932,  23  /-.  /.  AU-.  338.— Not  kui.lowkd 
IN  Edwards  v.  Midland  R.  Co.,  L.  K.  6  Q. 
B.  D.  287.  50  L.  j.  y.  B.  281, 43  L.  T.  694. 29 

W.  R.  609,  45  J.  1'.  374- 
2. iiKuiiiHtaii  (>x|ir«HHcoiii|>niiy. 

— Wliere  an  express  agent  charged  with  tlie 
duty  of  protecting  property  and  collecting 
charges  thereon  attempts  to  collect  such 
charges  on  property  unlawfully  take.i  with- 
out payment  of  the  charges,  and  in  such 
attempt  as  agent  mistakenly  institutes  a 
criminal  prosecution  without  probable 
cause,  the  principal  will  be  liable  in  an  ac- 
tion for  malicious  prosecution,  though 
where  the  agent  acts  as  a  citizen  and  fur 
the  purpose  of  vindicating  justice  the  rule 
is  otherwise.  Cameron  v.  I'aeifii  I'.xp.  tV»  ,48 
Mo.  App.  99.— Revikwinu  Allen  v.  Rail- 
road Co.,  34  Victoria  65  ;  Gilliman  v.  South 
&  N.  Ala.  R.  Co.,  70  Ala.  268. 

3.  'WIk'ii  tlioiu'tioii  will  liciiKiiiiiHt 
a  riiilroiul  coiiiiiniiy.f— An  aciion  for 
malicious  prosecution  may  be  maintained 

*  Liability  of  private  corporations  for  mali- 
cious  prosecution,  see   note,  36  Am.  Sr.  Kkp. 

131- 

Liability  of  corporations  for  torts,  such  a* 
assault  ami  battery,  malicious  prosecution,  slan- 
der, etc.,  see  note,  34  Am.  Rep.  495. 

\  Action  for  malicious  proHecuiion  lie*  aK»in«t 
a' railroad  company,  spr  noies,  an  Am.&  K\c. 
R.  Cas.  639  ;  36  /,/.  .  14. 


\ 


V:A 


m. 


868 


MALICIOUS   PROSECUTION,  4. 


I  '*i 


against  a  corporation,  yivtcn  v.  L'rt'e  A". 
Co.,  32  N.  /.  L.  334.— Reviewinu  Rrukaw 
V.  New  Jersey  K.  &  T.  Co.,  32  N.  J.  L.  328; 
Stevens  7'.  Midland  Counties  R.  Co.,  10  Ex, 
352  ;  Wiiitiield  v.  Soutli  Eastern  R.  Co.,  El., 
HI.  A(  1:1.  us:  Philadelphia,  \V.&  U.  R.  Co, 
V.  yiii>;ley,  21  How.  (U.  S.)  loz.—  Wood- 
ward  V.  .SV.  Louis  &*  S.  F.  A'.  Co.,  85  A/o.  142. 
— FoLLowiNU  Booj^her  7/.  Life  Assoc,  75 
Mo.  319.  OvERRUl.l.NG  Ciillett  V.  Missouri 
Valley  R.  Co..  55  Mo.  315.— AVn'rr/  v.  Cftt- 
tral  Pitc.  K.  Co.,  2  Am.  &-  Eng.  R.  Cas.  394, 
i;  Nev.  167.  Edwards  V.  Midland  R.  Co.,  i 
A.'i.SfEn^.  R.  Cas.  571.  /..  A".  6  (2.  R.  J>.  287. 
—Applvinc;  Whitfield  w.  South  Eastern  R, 
Co.,  El.,  Bl.  &  El.  123;  Green  v.  London 
Gen.  Omnibus  Co.,  7  C.  B.  N.  S.  290.  Nor 
Foi.i.uwiNC  Stevens  v.  Midland  Counties 
R.  Co.,  10  Ex.  352. 

An  action  on  the  case  for  a  malicious 
prosecution  may  be  maintained  against  a 
railroad  corporation.  Jordan  v.  Alabama  G. 
S.  R.  Co.,  20  Am.  (3»  Enj^.  R.  Cas.  628, 74  Ala. 
85,  49  Am.  Rep.  800.— Overruling  Owsley 
V.  Montgomery  &  W.  P.  R.  Co.,  37  Ala.  560. 
guoTiNO  Philadelphia,  VV,  &  B.  R.  Co.  v. 
Quigley,  21  How.  (U.  S.)  210. 

An  action  of  trespass  for  false  imprison- 
mcnt  lies  against  a  corporation,  but  an  ac- 
tion on  the  case  for  a  malicious  prosecution 
does  not.  Owsley  v.  Montgomery  &•  IV.  P. 
R.  Co.,yj  Ala.  560,  Ala.  Sel.  Cas.  485.— Ap- 
proving Childs  V.  Bank  of  Missouri,  17 
Mo.  213;  Stevens  v.  Midland  Counties 
R.  Co.,  26  Eng.  L.  &  Eq.  410;  McLellan 
V.  Cumberland  Bank,  24  Me.  566;  State 
V.  Great  Works  M.  &  M.  Co.,  20  Me.  41. 
Disapproving  Goodspeed  v.  East  Haddam 
Bank,  22  Conn.  530;  Philadelphia.  W.  &  B. 
R.  Co.  V.  Qui!?ley,  21  How.  (U.  S.)  202; 
National  Exchange  Co.  7/,  Drew,  32  Eng. 
L.  &  Eq.  I.  Quoting  Reg.  v.  Great 
North  of  England  R.  Co.,  9  Q.  B.  315; 
Com.  V.  Prop'rs  of  New  Bedford  Bridge, 
3  Gray  (Mass.)  345.  -Explained  in  South 
&  N.  Ala.  R.  Co.  V.  Chappcll,  61  Ala.  527. 
Followed  in  Mobile  &  M.  R.  Co.  v. 
McKellar,  59  Ala.  458.  Overruled  in 
Jordan  v.  Alabama  G.  S.  R.  Co.,  20  Am. 
&  Eng.  R.  Cas,  628,  74  Ala.  85,  49  Am.  Rep. 
800. 

In  Georgia  the  common  law  rule  as  to 
maliciouii  prosecutions  is  followed,  and  no 
action  lies  for  a  malicious  civil  suit,  unless 
there  be  special  damage,  whether  the  suit 
be  at  law  or  in  equity.  Mitchell  v.  South- 
western  R.  Co.,  75  Ga.  398. 


A  railway  company  is  liable  for  malicious 
prosecution  if  the  prosecution  is  instituicil 
by  it  against  a  person  solely  with  a  view  oi 
terrifying  parties  from  the  commission  of 
some  prevalent  offense.  Stevens  v.  Midland 
Counties  R.  Co.,  2  C.  L,  R.  1300,  10  Ex.  35 j, 
x^Jur.^yi,  23  L.J.  Ex.  328.— Nor  kol- 
lowed  in  Edwards  7/.  Midland  R.  Co.,  L. 
R.  6  g.  B.  D.  287.  50  L.  J.  y.  B.  281,  43  L. 
T.  694,  29  W.  R.6oy.  45  j.  P.  374. 

4.  lor  proHcciitioii    iiiNtitiitrd 

by  its  ii|c««iitH.*  — When  a  prosccuiion  is 
instituted  by  an  agent,  the  autlionty  of  the 
agent  must  be  sliown,  and  it  cannot  be  in- 
ferred that  a  parly  who  swore  out  a  warrant 
and  instituted  a  prosecution  was  the  auint 
of  a  railroad  simply  because  he  was  one  of 
the  company's  conductors.  Diel  v.  Mis- 
souri  Pac.  R.  Co.,  37  Mo.  A/>/>.  454. 

A  railroad  company  is  not  liable  for  a 
malicious  prosecution  instituted  by  its 
agents  against  one  of  its  officers  for  em- 
bezzling funds,  as  such  prosecution  is  not 
within  the  general  powers  of  a  railroad  cor- 
poration. Gillett  V.  Missouri  Valley  R.  Co., 
55  Mo.  315.— Criticisinu  Childs  7/.  Bank  of 
Missouri,  17  Mo.  213.  QuoTlN(;  Maynard 
V.  Firemen's  Fund  Ins.  Co.,  34  Cal.  48.  Re- 
viewing Higgins  7/.  WatervlietT.  R.C0..46 
N.  V.  23 ;  Whitfield  v.  South  Eastern  R.  Co., 
96  E.  C.  L.  115;  Philadelphia.  W.  &  B.  R. 
Co.  V.  guigley,  21  How.  (U.  S.)  20;;  Cole- 
man V.  New  York  &  N.  H.  R.  Co.,  106 'Mass. 
160;  Goodspeed  v.  East  Haddurn  Bank,  23 
Conn.  530;  Perkins?'.  Missouri,  K.  &  T.  K. 
Co.,  55  Mo.  201.— Not  followt  d  in  Hus- 
sey  V.  Norfolk  Southern  R.  Co.,  98  N.  Car, 
34.  Overruled  in  Woodward  v.  3t.  Louis 
&  S.  F.  R.  Co.,  85  Mo.  142. 

If  a  servant  of  a  railway  company  insti- 
tutes a  criminal  proceeding  without  the 
company's  knowledge  or  direction,  it  is  not 
liable  for  malicious  prosecution.  Stauns  v. 
Midland  Counties  R.  Co.,  2  C.  L.  R.  1300.  10 
Ex.  352,  \%Jur.  932,  23  L.J.  Ex.  328.  -Not 
FOLLOWED  IN  Edwards  v.  Midland  R.  Co., 
L.  R.  6  g.  B.  D.  287.  50  L.  J.  g.  B.  281,  43 
L.  T.  694.  29  W.  R.  609.  45  J.  P.  374. 

A  railway  company  is  liable  to  an  action 
for  malicious  prosecution  where  an  officer 
employed  by  it  wrongfully  and  without  cause 
arrests  a  man  on  a  charge  of  theft.  Hen- 
derson  v.  Midland  R.  Co.,  20  \V.  R.  23,  25 
L.  T.  881. 

*  Liability  of  corporations  (or  malicious 
prosecution  instituted  by  •gents  or  employes, 
see  note,  36  Am.  St.  Kki'.  131. 


MALICIOUS   PROSECUTION,  6-7. 


309 


A  spike  having  been  found  driven  in  be- 
tween the  rails  on  defendants'  line  of  rail- 
way, plaintiti  was  arrested  on  uspicion  of 
bein^'  the  guilty  party.  The  evidence  against 
him  was  that  he  had  been  seen  on  the  day 
the  act  was  supposed  to  have  been  coniniit- 
ted  lounging  about  the  railway  bridge  and 
track  early  in  the  afternoon  for  two  or  three 
h(jiirs.  and  that  his  boots  would  make 
prints  corresponding  with  the  footmarks 
al)out  the  place.  I'laintitI,  having  bcf;n  ac- 
(juitti'd,  brought  an  action  against  defend- 
ants for  malicious  prosecution,  and  the  jury 
having  given  him  damages,  the  court,  con- 
sidering the  insutficient  nature  of  the  evi- 
dence against  him,  refused  to  interfere  with 
the  verdict.  Jlat^irty  v.  Of  vat  U'lsltrn  A'. 
C('.,.|4  U.  C.Q.'/{.  319. 

a.  I*laiiitift'  iiiiiHt  nIiow  t(;riiiiiiii- 
tioiiot'|iroNUVilti«»ii.— In  malicious  pros- 
ecution the  plaintilTinust  alFirmativcly  show 
that  the  original  jirosecution  has  been  de- 
termined. Atch'iiisie  V,  Missouri  J'ac.  A', 
Co.,  24  Afo.  App.  392. 

Where  a  nolle  prosequi  is  etiterefl  by  the 
procurement  of  the  party  prosecuted,  or 
by  his  consent,  or  by  way  of  compromise, 
such  party  cannot  have  an  action  for 
malicious  prosecution.  So  where  a  party 
is  arrested  for  failing  to  pay  his  fare, 
anfl  a  nolle  prosequi  is  entered  after  the 
complaint  is  sent  to  the  superior  court, 
by  the  district  attorney,  at  the  procurement 
of  plaintiff's  attorney,  without  any  order  of 
discharge  by  the  court,  an  action  cannot  be 
maintained.  I.an^fordv.  lioston  &^  A.  R. 
Co.,  30  Am.  <S>»  Eng.  A'.  Cits.  653,  144  A/ass. 
431.  4  A'.  JCng.  A'ep.  209.  1 1  ^V.  A".  A'ep.  697. 

«. tlint  tlicro  was  iiinlicu  in  tlio 

|>ros(M*iitioii. —  In  malicious  prosecution 
it  ilevolves  upon  the  plaintifT  to  show  atlirm- 
atively  that  the  prosecution  was  malicious 
and  without  probable  cause,  liiconi  v.  Cen- 
tral  l\ic.  /i".  Co.,  2  Am.  &•  Eng,  R.  Cits.  394, 
1 5  .\c7'.  1 67. 

The  plaintiff  is  not  entitled  to  recover 
where  it  appears  from  his  own  testimony 
tiiat  the  investigation  which  led  to  his  ar- 
rest was  instituted  by  the  police  for  the  pur- 
pose of  discovering  criminals  who  were  en- 
gaged in  a  series  of  systematic  robberies  of 
the  cars  of  the  defendant,  a  railroad  com- 
pany. Afaiiison  v.  Pennsyhutnia  R.  Co.,  147 
/'<».  St.  509,  23  ////.  Rep.  764. 

I'ublic  policy  and  the  demands  of  public 
justice  cannot  permit   a  jury  to  punish   a 
prosecutor  wliere  the  inference  of   malice, 
6  D.  R.  0,-24 


drawn  from  th£  discharge  of  the  plaintifT  by 
the  magistriite,  is  rebutted  by  plaintiff's  own 
testimony  disclosing  circumstances  showing 
entire  absence  of  malice.  Alaitison  v.  Venn' 
sylvania  R.  Co.,  147  /'it.  Si.  509,  23  A/l.  A'ep, 
764. 

A  jury  ought  not  to  be  permitted  to  infer 
malice  from  the  mere  want  of  probable 
cause  when,  by  other  circumstances,  it  is 
disproved.  Afaiiison  v.  rennsylvania  R.  Co., 
147  Pa.  St.  509.  23  All.  Rip.  764. 

7. uikI  ti  want  of  probable  niiiNO 

for  t\w  i>roNt>ciition.— In  a  suit  for  the 
malicious  prosecution  of  a  civil  action  and 
proceedings  therein,  the  afiirmative  is  on 
the  plaintiff  to  show  want  of  probable  cause. 
liurtOH  V.St.  Piitdl,  A/.  &^  Al.  R.  Co  .  33  At  inn. 
189,  22  A'.  IV.  Rep.  300.  Alolloy  v.  Long 
Island  R.  Co.,  59  Hun  424,  36  A'.  J',  .V.  A'. 
626,  1 3  A'.  1 '.  Supp.  382  ;  affirmed  in  1 37  A'. 
Y.  629.  mem.,  51  A'.  Y.  S.  R.  931,  33  A'.  E, 
Rep.  745,  mem.  Walkers.  Sout/i-Eitstern  R. 
Co.,  39  L.  J.  C.  P.  346.  L.  R.  5  C.  P.  640,  18 
W.  R.  1032,  23  L.  T.  14.  Atontreal  St.  R. 
Co.  V.  Rite/lie,  5  Alontr.  L.  R.  77. 

And  this  is  so,  although  the  plaintiiT 
proves  that  he  is  innocent,  and  although  the 
judge,  in  order  to  enable  himself  to  deter- 
mine the  issue  of  reasonable  and  probable 
cause,  leaves  subsidiary  questions  of  fact  to 
the  jury.  Ahrath  v.  North  Eastern  R.  Co.^ 
I..  R.  M  Q.  n.  D.  440,  52  L.  J.  Q.  B.  D.  620. 
49  L.  r.  618,  32  \V.  R.  50.  47/.  P.  692,  15 
Co.x  C.  C.  354 ;  reversing  L.  R.  \\  Q.  B.  D. 
79,  52  L.  J.  Q.  B.  D.  352 ;  affirmed  in  Z. 
R.  1 1  App.  Cas.  247. 

Where  a  magistrate  finds  that  there  is 
probable  cause  for  a  prosecution  and  com  • 
mits  the  party,  and  the  grand  jury  subse- 
quently ignores  the  charge  and  refuses  to 
find  an  indictment,  the  one  merely  negatives 
'  the  other,  and  leaves  the  burden  of  proof  on 
the  plaintifT,  in  a  subsequent  action  for 
malicious  prosecution,  to  show  want  of 
probable  cause.  Atil'er  v.  Chicago,  Al.  5^ 
St.  P.  R.  Co.,  41  Fed.  Rep.  898. 

Where  a  corporation  is  not  otherwise 
Table  for  a  prosecution  instituted  by  its 
agents,  it  cannot  defend  by  alleging  that 
there  was  reasonable  cause  for  the  prosecu- 
tion. Gillett  V.  Afissouri  Valley  R.  Co.,  55 
AIo.  315.— Approving  Mali  v.  Lord,  39 
N.  Y.  381.— Not  foi.i.owf.d  in  Hussey  w. 
Nijrfolk  Southern  R.  Co.,  98  N.  Car.  34. 

PlaintifT  was  employed  as  general  passen- 
ger agent  of  a  steamship  cotnpany,  and  fail- 
ing to  make  proper  returns  of  tickets  sold. 


870 


MALICIOUS  PROSECUTION,  8, 9. 


tlio  conip<)ny  instituted  a  replevin  suit  to 
recover  certain  tickets  in  liis  liands.  The 
slieritl  made  return  that  tlie  tickets  liad 
been  "eloigned,  removed,  concealed,  or  dis- 
posed of,  so  that  he  could  not  find  the 
same."  Thereupon  an  order  of  arrest  was 
procured  under  whicii  |)lainiill  was  impris- 
oned for  some  time,  but  subsequently  the 
order  was  vacated.  In  a  subsequent  action 
for  an  accounting  the  company  recovered 
a  large  sum  of  money  against  plaintil!  for 
tickets  received  and  not  accounted  for. 
Held,  not  sutiicient  to  establish  want  of 
probable  cause.  Shiwfmn  v.  A'attonal  Stcam- 
s/iip  (•■<;.,  49  A'.  1'.  S.  A'.  484,  66  J/un  48,  20 
N.  V,  Supp.  740 ;  affirmed  on  opinion  lu'lirw 
in  142  A".  >'.  655.  /«<•;//.,  37  A'.  A',  A'ep,  569, 
mem. 

8.  Wlint  coiiHtitiitCH  iiialive,  niul 
how  mIiowii.— Where  there  is  a  wanton, 
gross,  reckless  disregard  of  the  rights  of 
another  in  instituting  a  prosecution,  and 
where  there  is  no  excuse  for  it,  or  no  rea- 
sonable ground,  then  the  jury  may  mfer 
malice.  Blunk  v.  Atchison,  T.  &*  S.  F.  A'. 
Co.,  38  J-\:i.  Kep.  311. 

Malice  will  be  inferred  from  want  of 
probable  cause,  and  to  stiow  its  existence  it 
is  not  necessary  to  prove  that  the  suit  was 
instituted  by  ill  will,  resentment,  or  hatred 
towards  the  owner  of  tlie  property  involved. 
In  a  legal  sense,  any  act  done  wilfully  and 
purposely  to  the  prejudice  and  injury  of 
another,  which  is  unlawful,  is,  as  against 
that  person,  malicious.  Southwestern  K. 
Co.  V.  Mitchell.  80  Ga.  438,  5  S.  E.  Kep.  490. 

If  a  passenger  on  a  railroad  is  prosecuted, 
on  a  complaint  by  the  conductor,  for  fraud- 
ulently evading  his  fare,  and  is  acquitted, 
in  an  action  by  hmi  against  the  radroad 
corporation  for  malicious  prosecution  the 
honest  and  reasonable  belief  of  the  con- 
tiuctor  in  making  the  complaint  is  a  neces- 
sary element  in  determining  whether  lie 
a;:ted  without  probable  cause  and  mali- 
ciously. Krulevits  v.  Eastern  R.  Co.,  26  Am. 
&•  Eng.  R.  Cas.  118,  I4U  Mass.  573,  5  A'.  E. 
Rep.  500. 

The  mere  fact  that  an  order  of  arrest  is 
finally  vacated  does  not  show  that  the  de- 
fendant was  actuated  by  malice  in  obtaining 
it.  Sheahan  v.  National  Steamship  Co. ,  49  A'. 
Y.  S.  R.  484,  66  Hun  48,  20  A^  Y.  Supp. 
740;  affirmed  in  142  A'^.  Y.  655,  mem.,  37  A^ 
E.  Rep.  569,  mem. 

1>.  Wlmt  is  want  of  probable  cniise, 
niul  how  shown. --.X  prosecuting  ;ittor- 


ney  or  a  witness  is  not  required  to  go  to 
the  accused  party  and  advise  him  of  a  con- 
templated prosecution,  and  that  he  is  sus- 
pected, and  ask  him  if  he  is  guilty  or  inno- 
cent, before  instituting  proceedings.  Milter 
v.  Chicago,  M.  &*  St.  P.  R.  tV.,41  Fed.  Rep. 
898. 

In  California,  where  a  defendant  may  ap- 
pear by  his  witnesses  before  a  grand  jury, 
the  fact  that  the  grand  jury  dismiss  a  charge 
atlords  no  evidence  of  want  of  probable 
cause.  Ganea  v.  Southern  J'ac,  R.  Co.,  51 
Cal.  140. 

An  officer  of  a  railroad  company  having 
reasonable  grounds  for  supposing  a  person 
had  in  his  possession  fraudulent  tickets  of 
the  company  is  justified  m  proceeding  by 
search  warrant  to  ascertain  that  fact ;  and 
the  failure  to  find  such  tickets  does  not 
show  that  he  had  not  suthcient  ground  to 
justify  him  in  instituting  the  search.  Thelin 
v.  Dorse)',  13  Atn.  &*  Eng.  R.  Cas.  145,  59 
Md.  539. 

Nor  would  the  failure  to  find  any  such 
tickets  be  necessarily  sutficient  to  conviiu  e 
a  reasonably  prudent  and  cautious  man  that 
the  suspected  person  had  not  fraudulently 
issued  a  .ticket,  which  prior  to  the  search 
he  was  suspected  of  issuing,  or  even  nnglit 
not  still  have  others  in  his  possession, 
though  none  were  found  in  the  place  which 
was  searched.  Thelin  v.  Dorsey,  13  Am.  &» 
Eng.  R,  Cas.  145,  59  Afd.  539. 

A  question  of  probable  cause  is  to  l>e 
tested  by  inquiring  whether  a  discreet  man 
would  have  been  warranted  in  instituting 
and  following  up  the  proceedings.  A'ellyv. 
Midland  G.  IV.  R.  Co.,  7  Ir.  C.  L.  8. 

A  company  was  sued  for  personal  injuries 
growing  out  of  the  derailment  of  a  tram, 
and  plaintif!  testified  that  one  of  the  cars 
had  a  loose  wheel  before  the  accident,  for 
which  the  company  subsequently  instituted 
a  prosecution  for  perjury.  In  an  action  for 
maliciously  instituting  such  prosecution  the 
evidence  showed  that  a  telegram  passed 
between  agents  of  the  company  containing 
the  words  "  loose  wheel,"  and  that  the  com- 
pany's general  passenger  agent  said,  "Of 
course  we  understand  it,  but  the  world  does 
not,"  and  that  the  gene.'al  passenger  agent 
knew  that  another  witness  had  testified  thiit 
the  accident  was  caused  by  a  loose  wheel. 
Held,  siifficipnt  to  authorize  the  jury  in  find- 
ing a  want  of  probable  cause.  Gttlf.  C.  &* 
S.  F.  R.  Co.  \.  James,  73  Tex.  12,  10  S.  fV. 
Rep.  744. 


1^ 


MALICIOUS   PROSECUTION,  10-14. 


871 


lO.  PIcndlliff.— Where  a  petition,  in- 
tending; to  state  a  cause  of  action  for  an  un- 
lawful arrest  and  imprisonment,  sutHciently 
states  a  cause  of  action  for  malicious  prose- 
cution and  defectively  states  a  cause  of 
action  for  false  imprisonment,  and  the  evi- 
dence clearly  shows  a  cause  of  action  for 
l.ilse  iin|)risonnu-nt,  and  tlie  defendant  is 
nut  misled,  the  petition  may  he  amended 
at  any  time  during;  the  trial  so  as  to  make 
it  siithciently  state  a  cause  of  action  for 
false  imprisonment.  Alchison,  T,  &*  S.  F. 
A.  til.  V.  A'l'a;  36  A'titi.  593,  14  J'ai:  Kep. 
221J. 

An  action  may  be  sustained  by  a  master 
against  one  maliciously  causing  the  arrest 
of  Ins  servant  when  no  le^al  cause  of  action 
cxtstcil  a({ainst  the  servant,  and  the  arrest 
was  for  the  sole  purpose  of  injuring  the 
master;  and  maliciously  causing  the  arrest 
of  a  railroad  compai.y's  engineer  while  run- 
ning a  train  of  cars,  t(>  delay  the  train  and 
thereby  damage  the  company,  is  actionable. 
It  IS  not  necessary  to  av.^r  what  became 
of  tliL-  defendant's  suit  against  the  servant 
if  the  jilearlings  admit  that  it  was  malicious, 
false,  and  hopeless.  S/.  Johnsbury  iS-  L.  C. 
A'.  Ci>.  V.  Hunt,  15  Am.  <S^  Eng.  A'.  Cas,  1 13, 
55  f  7.  570,  45  Am.  R,p.  639. 

1  1.  KvIiUmico.— A  plaintifT  in  an  action 
for  malicious  prosecution  cannot  show  by  a 
member  of  the  grand  jury  what  testimony 
was  given  before  that  body  by  defendant 
procuring  plaintiff  to  be  indicted.  Fothvr- 
iiii;/ittin  v.  Adams  Exp.  Co.,  34  EtJ.  Rip. 
646. 

In  iin  action  for  malicious  prosecution  on 
a  charge  of  selling  a  fraudulent  railroad 
ticket,  the  defendant  may  introduce  evidence 
of  his  having  had  knowledge,  anterior  to 
the  charge,  of  the  sale  of  fraudulent  tickets 
by  the  plaintiff  on  other  occasions.  Thelin 
v.  Dormy,  13  Am.  iS-  Eng,  K.  Cas.  145,  59 
JAi".  539. 

In  an  action  for  malicious  prosecution, 
to  show  that  a  criminal  prosecution  was 
instituted  by  authority  of  a  railroad  corpo- 
ration, it  is  not  necessary  to  produce  a  reso- 
lution of  its  board  of  directors.  It  is  suffi- 
cient to  show  that  its  legal  advisers,  acting 
in  conjunction  with  such  of  its  servants  and 
agents  as  have  knowledge  of  the  facts,  insti- 
tuted the  proper  proceedings.  Riconi  v. 
Central Pac.  R.  Co.,  2  Am.  <S-  Eng.  R.  Cas. 
394.  15  AVv.  167. -Quoted  in  Gulf.  C.  &  S. 
F.  R.  Co.  V.  James,  73  Tex.  12,  10  S.  W. 
Rep.  744. 


12.  DcfeiitiCM,  ifcixicnlly*— Where  a 

company  issued  for  a  mulici(jus  prosecution 
instituted  by  its  general  manager,  it  cannot 
defend  on  the  ground  that  the  act  was  not 
authorized  by  its  charter.  On//,  C.  (5-  S.  F. 
R.  Co.  v.  James,  73  Tex.  12,  \o  S.  W.  Rep. 
744.  -  yuoriNt;  Pressley  v.  Mobile  &  G.  R. 
Co..  II  Am.  &  Eng.  R.  Cas.  229.  15  Fed. 
Rep.  199. 

Ml.  Ailvir<>  «1"  (MMiiiNvl.— Advice  of 
counsel  after  a  full  disclosure  of  facts  justi- 
fies the  institution  of  a  criminal  prosecu- 
tion. R/'ioniv,  Centra/  J'ac.  R.  Co.,  2  Am. 
6f  Eng.  R.  Cas.  394,  15  A'it.  167. 

Where  an  attorney  is  empowered  to  begin 
such  proceedings  by  prosecution  as  he  may 
see  fit,  and  for  which  he  is  to  receive  a  cer- 
tain sum  for  each  prosecution  by  him  begun, 
the  rule  which  protects  a  client  when  act- 
ing under  the  advice  of  an  attorney,  upon 
whose  unbiased  judgment  he  has  a  right  to 
rely,  has  no  application.  AtcGarry  v.  Mt's- 
souri  Pac.  R.  Co.,  36  Mo.  Apfi.  340. 

14.  I*rulmltl«  I'liiiHts  ai<<l  how 
nIiowii.— (■)  Oenerally. —  Evidence  of  in- 
formation received,  before  preferring  the 
charge,  by  the  person  who  institutes  a  prose- 
cution for  a  criminal  offense,  and  tending 
to  establish  the  guilt  of  the  person  prose- 
cuted, is  competent  as  to  the  question  of 
probable  cause,  but  evidence  of  information 
received  after  the  charge  has  been  preferred 
is  not.  Pennsylvania  Co.  v.  Weddle,  26  Am. 
&*Eng.  R.  Cas.  120,  100  /«</.  138. 

If  the  evidence  is  such  that  a  reasonable 
man  would  think  a  person  to  be  guilty  of  a 
felony  which  has  been  proved  to  have  been 
committed,  probable  cause  is  established, 
and  he  is  protected  in  making  a  complaint; 
and  where  stolen  goods  are  found  in  the 
possession  of  the  accused,  and  such  posses- 
sion is  not  explained,  probable  cause  is  estab- 
lished. Alolloy  v.  Long  Island  R,  Co.,  59 
Nun  424.  36  A'.  1'.  S.  R.  626,  13  A'.  J'.  Su/>p. 
382;  affirmed  in  137  A'.  Y.  629.  mem.,  51  A'. 
Y.  S.  R.  931,  33  A'.  E.  Rep.  745.  mem.  CM- 
cago,  B.  <S-  Q.  R.  Co.  v.  Kriski,  30  Neb.  215, 
46  A^.   W.  Rep.  520. 

A  judicial  finding  by  a  court  of  original 
jurisdiction  is  conclusive  as  to  probable 
cause,  when  such  finding  is  not  procured  by 
unfair  means,  even  if  such  finding  is  re- 
versed on  appeal.  Welch  v.  lioston  &•  P. 
R.  Corp.,  14  R.  I.  609. 

A  railway  company  is  not  liable  to  an 
action  for  malicious  prosecution  in  procur- 
ing the  arrest  of  an  employ^  on  the  ground 


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11 


372 


MALICIOUS   PROSECUTION,  15,  16. 


■  ■  :m 


fi 


3? 


tliat  he  charged  a  passenger  a  greater 
amount  than  that  for  which  he  gave  a  re- 
ceipt, where  both  the  passenger  and  his  wife 
swore  to  the  truth  of  their  accusation,  not- 
withstanding whicli  the  jury  acquitted  the 
employe.  A't'//y  v.  Midland  G.  IV.  A'.  Co., 
7  /;-.  C.  L.  8. 

(2)  Ulustrations. — It  appearing  that  cer- 
tain personal  property  had  been  stolen  from 
the  defendant  company,  and  that  competent 
legal  counsel  and  the  county  attorney  ad- 
vised the  defendant  that  there  was  probable 
cause  fci  the  prosecution  of  the  plaiiitifi 
after  the  supposed  facts  had  been  stated  to 
them,  embracing  an  affidavit  of  a  confessed 
accomplice  alleging  circumstantially  that 
the  plaintiff  participated  in  the  larceny, 
with  other  affidavits  of  a  corroborative  na- 
ture— held,  that  the  case  showed  probable 
cause,  and  that  a  verdict  against  the  defend- 
ant could  not  be  sustained.  Moorev.  North- 
ern Pac.  R.  Co.,  37  Minn.  147,  33  N.  W.  Rep. 

334. 

The  defendant  caused  the  arrest  of  pL<'n- 
tifi,  and  supported  its  charge  with  evidence 
sufficient  to  procure  his  commitment  and  in- 
dictment for  embezzlement.  Held,  that  this 
\i2&  prima  facie  evidence  of  the  existence  of 
probable  cause.  Ricord  v.  Central  Pac.  R, 
Co.,  2  Am.  <S>»  Ettg.  R.  Cas.  394,  15  Nev.  167. 

The  defendant  affirmatively  showed  that 
it  acted  in  perfect  good  faith,  under  the  ad- 
vice of  counsel,  and  the  decision  of  the 
district  court  and  of  the  supreme  court, 
that  there  was  good  reason  to  charge  a 
second  offense  for  embezzlement.  Held, 
that  the  court  erred  in  not  instructing  the 
jury  that  there  was  probable  cause  for  the 
prosecution.  Ricord^.  Central  Pac.  R.  Co., 
2  Am.  &"  E)ig.  R.  Cas.  394,  15  Nev.  167. 

Defendant  brought  an  action  and  ob- 
tained a  judgment  against  the  plaintiff's 
.  engineer  for  injuries  to  his  heifer,  claimed 
to  have  been  caused  by  negligence  in  run- 
ni.ig  an  engme  ;  and  while  the  writ  was  be- 
ing served  its  train  of  cars  was  delayed  for  a 
short  time.  Thereupon  the  plaintiff  com- 
menced this  action  for  malicious  prosecu- 
tion, alleging  that  the  engine  was  properly 
managed  at  the  time  of  the  accident,  that 
the  defendant  instituted  his  suit  for  the  sole 
purpose  of  injuring  the  plaintiff  by  delaying 
its  train,  and  the  declaration  was  sustained 
on  demurrer.  Held,  on  trial  of  the  merits, 
that  evidence  was  admissible  to  prove  that 
the  plaintiff  had  neither  fenced  its  road  nor 
built  cattle-guards,  for  the  purpose  of  show- 


ing that  the  defendant  had  a  cause  of  action, 
and  therefore  probable  cause.  St.  Johnsbury 
&^  L.  C.  R.  Co.  V.  Hunt,  29  Ant.  6-  Eng.  R. 
Cas.  234,  59  Vt.  294,  7  Atl.  Rep.  277. 

15.  Instructions.— If  the  facts  are  not 
disputed,  the  court  must  decide,  as  matter 
of  law,  whether  they  constitute  probable 
cause ;  but  where  the  facts  are  disputed  the 
court  must  hypothetically  state  the  material 
facts  which  there  is  evidence  fairly  teiujim^ 
'o  prove,  and  positively  direct  as  to  the  law 
I  v"reon.  leaving  to  the  jury  to  determine 
I  he  existence  or  non-existence  of  tlie  facts. 
Pennsylvania  Co.  v.  Weddle,  26  Am.  (S-»  Eng. 
R  ■^■•is.  120,  100  Ind.  138.  Atchison,  T.&^ 
s      ■"    v.  Co.  V.  Watson,  37  Kan.  773,  \l  Pac. 

.  6,7.  Burton  v.  St.  Paul,  M.  &-  M.  R. 
(..,  33  Minn.  189,  22  A'.  IV.  Rep.  300.  A/c- 
Gar,j/  V.  Missouri  Pac.  R.  Co.,  36  Mo.  App. 
340. 

16.  Damages.—  Whatever  may  have 
been  paid  out  by  a  plaintiff,  in  a  malicious 
prosecution,  for  counsel  fees,  for  expenses 
in  defending  himself,  and  whatever  may  be 
the  value  of  the  time  lost  in  that  defense, 
and  in  addition  whatever  damage  may  have 
been  done  to  his  reputation  by  the  prosecu- 
tion, are  to  be  considered  in  determining  the 
amount  of  his  damages.  Blunk  v.  Atchison, 
T.  (&>•  S.  F.  R.  Co.,  38  Fed.  Rep.  311. 

Exemplary  damages  may  be  given  when- 
ever malice  is  an  essential  ingredient.  Mc- 
Garry  v.  Missouri  Pac.  R.  Co.,  36  Mo.  App. 
340. 

Where  a  jury  finds  both  a  want  of  prob- 
able cause  and  malice,  such  finding  is  no 
ground  for  setting  aside  a  verdict  for  actual 
damages  only,  where  exemplary  damages 
might  have  been  allowed.  Gulf,  C.  &*  S.  F. 
R.  Co.  W.James,  73  Tex.  12,  10  S.   VV.  Rep. 

744- 

In  an  action  for  malicious  prosecution  for 
perjurv,  plaintiff  claimed  $15,000  actual 
damages  and  the  same  exemplary  damages, 
and  the  jury  gave  him  $8000  actual  dam- 
ages. The  evidence  showed  that  the  pros- 
ecution ruined  plaintiff  financially ;  pre- 
vented him,  in  a  measure,  from  obtaining 
employment ;  caused  him  to  perform  labor 
he  had  not  previously  done;  and  estranged 
him  from  those,  or  many  of  them,  with 
whom  he  had  associated  in  business.  Held, 
that  the  verdict  was  not  so  excessive  as  to 
warrant  the  court  in  interfering.  Gulf,  C. 
«S-  S.  F.  R.  Co.  V.  James,  73  Tex.  12,  10  5. 

IV.  Rep.  744.— Quoting  Gulf,  C.  &.  S.  F. 

R.  Co.  V.  Gordon,  70  Tex.  90, 


MANAGING  AGENTS— MANDAMUS,  1. 


373 


Plaintiff  with  his  son  and  a  friend  had  a 
dispute  with  the  conductor  of  the  train  on 
whicli  they  were  passengers  as  to  wliether 
the  particular  tickets  they  offered  entitled 
them  to  travel  on  the  particular  train. 
When  the  train  reached  Hoboken,  the 
three,  on  the  complaint  of  the  conductor, 
were  arrested  under  color  of  a  statute 
authorizing  the  apprehension  of  any  person 
attempting  to  ride  in  a  carriage  of  any  rail- 
road company  without  having  paid  his  fare 
and  with  intent  to  avoid  payment  thereof. 
Plaintiff  and  his  companions  were  dis- 
charged by  the  magistrate.  In  an  action 
by  each  to  recover  damages  for  causing  the 
arrest,  the  plaintiffs  had  a  verdict,  but  for 
different  amounts.  Plaintiff  herein  had  a 
verdict  for  $500.  HM,  not  excessive, 
Tooiiuy  V,  Delaware,  L.  &*  IV.  R.  Co.,  4 
Mnc.  392,  53  N.  Y.  S.  R.  567.  24  N.  Y. 
Supp.  108. 

Another  of  the  plaintiffs  had  a  verdict  for 
si.\  cents.  Held,  that  as  the  trouble  had  its 
origin  in  an  honest  mistake,  of  which  plain- 
tiff was  the  responsible  author,  and  the  con- 
ductor acted  without  malice  or  evil  intent, 
the  verdict  should  not  be  set  aside  on  the 
ground  of  inadequate  damages.  Toontey  v. 
Delaware,  L.  &•  W.  R.  Co.,  2  Ah'sc.  82,  49 
A'.  Y.  S.  R.  623,  21  A^.  Y.  Supp.  448. 


MANAGING  AGENTS. 
Service  of  process  on,  see  Process,  30* 


MANDAMUS. 

Appeals  from  order  granting  or  refusing,  see 

Ari'EAi.  ANU  Error,  20. 
As  a  remedy  for  wrongful  interference  with 

property,  see  Eminent  Domain,  1052. 
to   the    landowner,   under   English 

compulsory  purchase  acts,  see  Eminent 

Domain,  1208. 
By  creditor,  to  compel  payment  of  subscrip- 
tion, see  Stockholders,  28. 
Compelling  appointment    of   commissioners 

by,  see  Eminent  Domain,  502. 
—  deposit  of  land  damages  by,  see  Eminent 

Domain,  304. 
Enforcement  of  awards  by,  under  English 

compulsory  purchase  laws,   see   Eminent 

Domain,  1 177. 
commissioners'  orders  by,  see  Railway 

Commissioneus,  31. 
judgments   by,    see  Eminent  Domain, 

8(iO. 

taxes  by,  see  Taxation,  324. 

Removal  of  proceedings  for,  to  federal  court, 

see  Removal  of  Causes,  17. 


Review  of  condemnation  proceedings  on,  see 
Eminent  Domain,  907. 

To  compel  allowance  of  costs,  see  Eminent 
Domain,  770. 

carrier  to  r«^ceive  and  carry,  see  Car- 
riage OF  Merchandise,  48. 

transport  liquor,  see  Intoxicat- 
ing Liquors,  2. 

construction  of  highway  crossing,  see 

Crossing  OF  Streets  AND  Highways,  11, 

\^' 

road,  see  Construction  of  Rail- 
ways, 1. 

delivery  of  grain  by  elevator  proprie- 
tor, see  Elevators,  9. 

election  of   directors,   see   Directors, 

etc.,  O. 

extension  of  track,  see  Street  Rail- 
ways, 31. 

further   proceedings    under    notice  to 

treat,  see  Eminent  Domain,  1131. 

inspection  of  books,  see  Stockhold- 
ers, 7. 

—  —  issue  and  delivery  of  railway  aid 
bonds,  see  Municipal  and  Local  Aid, 
286,  287. 

and  reissue  of  stock,   see   Stock, 

14,  15. 
of   warrant  to    summon    jury,    see 

Eminent  Domain,  531,  1184. 
operation  of  branch  road,  see  Branch 

AND  Lateral  Roads,  14;  Leases,  etc., 6. 
__  —  payment  of  coupons,  see  Coupons,  23, 
restoration    of  highway,  see  Crossing 

of  Si  reets  and  Highways,  26 ;  Streets 

AND  Highways,  192. 
transfer  of  stock,  see  Stock,  63,  64. 

—  enforce  duty    to    construct    bridge,    see 

Bridges,  etc.,  19. 

locate  station,  set  jiations  and 

Depots,  29. 

—  review  town  bonding  proceedings,  see 
Municipal  and  Local  aid,  439-455. 

When  proper  remedy,  and  not  creditors'  suit, 
see  Creditors'  Bill,  5. 

I,  MATUBE  AND  USE  OF  THE  WRIT.  373 

1.  In  General     373 

2.  In  Particular  Cases 375 

II.  FBOCEDUBE 3^2 

I,  NATUBE  AND  TTSE  OF  THE  WBIT, 

I,  In  General. 

1.  Purpose  of  the  writ,  and  when 
lies,  generally.*— The  writ  of  mandamus 

*What  duties  a  railroad  company  may  ht 
compelled  to  perform  by  mandamus,  see  note, 
30  Am.  &  Eng.  R.  Gas.  515. 


I 


'.ila. 


/-V 


374 


MANDAMUS,  3,  3. 


lies  to  compel  a  railroad  company  to  per- 
form the  public  duties  imposed  upon  it  by 
its  charter.  Railroad  Coni'rs  v.  Portland 
&>  O.  C.  K.  Co.,  63  Me.  269.— Quoting 
State  V.  Hartford  &  N.  H.  R.  Co.,  29  Conn. 
538.— Approved  in  People  v.  New  York  C. 
&  H.  R.  R.  Co.,  9  Am.  &  Eng.  R.  Cas.  i,  28 
Hun  (N.  Y.)  543,  3  Civ.  Pro.   11,  2  McCar. 

345- 

Mandamus  never  lies  to  enforce  the  per- 
formance of  private  contracts.  Florida  C. 
&^  P.  R.  Co.  V.  State  ex  rel ,  56  Am.  lS^•  Eng. 
R.  Cas.  306,  31  Fla.  482,  13  So.  Rep.  103. 

Mandamus  will  not  ordinarily  be  issued 
to  command  the  doing  of  an  act  enjoined 
by  the  deer  e  of  a  competent  court;  but 
when  one  wiio  was  not  a  party  to  that  de- 
cree has  rights  which  can  be  secured  only 
bv  the  writ  of  mandamus,  it  may  be  issued. 
Atchison.  T.  &•  S.  F.  R.  Co.  v.  Jefferson 
County  Coin'rs,  12  Kan.  127. 

2.  Uelator's  right  must  be  clear.— 
Courts,  as  a  general  rule,  will  not  interfere 
with  the  management  of  railways  in  the 
equipment  and  operation  of  their  road,  ex- 
cept where  the  act  sought  to  be  enforced  is 
specific,  and  the  right  to  its  performance  in 
the  manner  proposed  is  clear  and  undoubt- 
ed. Ohio  6^  M.  R.  Co.  v.  People  ex  rel.,  30 
Am.  &-  Eng.  R.  Cas.  509,  120  ///.  200,  11 
N.  E.  Rep.  347,  9  M'est.  Rep.  167. 

Where  the  right  of  a  company  to  con- 
struct a  railroad  is  not  free  from  doubt,  a 
mandamus  will  not  issue  to  compel  the 
commissioner  of  public  works  to  issue  a 
permit.  People  ex  rel.  v.  Newton,  34  A'.  Y, 
S.  R.  584,  26  /.  &•  S.  439,  19  Civ.  Pro.  416, 
1 1  A^.  Y.  Siipp.  782  ;  appeal  dismissed  in  1 26 
N.  Y.  656,  37  N.  Y.  S.  R.  391,  27  N.  E.  Rep. 

370. 

Mandamus  will  not  be  allowed  to  compel 
a  corporation  to  issue  its  bonds  to  one  of 
its  creditors  in  order  to  obtain  the  benefit 
of  a  mortgage  security,  where  the  right  cJ 
the  creditor  to  such  security  is  doubtful,  and 
the  property  sought  to  be  affected  has 
passed  into  the  hands  of  third  parties  as 
purchasers.  The  remedy  in  such  case 
should  be  by  a  suit  brought  in  equity 
against  the  parties  whose  interest  it  is 
sought  to  affect.  Ham  v.  Toledo,  IV.  &• 
W.  R.  Co.,  29  Ohio  St.  174. 

After  a  petition  was  filed  for  a  mandamus 
to  the  court  below  to  take  certain  rolling 
stock  out  of  the  hands  of  a  receiver  and 
deliver  it  to  petitioners,  the  supreme  court 
decided  a  case  between  the  same   parties 


that  the  petitioners  were  not  entitled  to  the 
property.  Held,  that  the  petition  must  be 
denied.  Ex  parte  Milwaukee  &«•  M.  R.  Co., 
18  Law.  Ed.  {U.  S.)  887. 

3.  Tliere  must  be  no  other  ade- 
quate legal  remedy. —  Mandamus  does 
not  lie  to  compel  corporations  to  perform 
obligations  arising  simply  from  contract, 
nor  when  there  exists  other  adequate  legal 
remedy,  and  especially  when  such  remedy 
is  expressly  provided  by  the  statute  impos- 
ing the  duty.  State  ex  rel.  v.  New  Orleans 
■&'C.  R.  Co.,  37  La.  Ann.  589.— Distin- 
guishing Hayes  v.  Michigan  C.  R.  Co., 
Ill  U.  S.  2-n;  Louisville  &  N.  A.  R.  Co. 
V.  State,  25  Ir.d.  177. 

Two  things  must  concur — a  specific  legal 

right,  and  the  absence  of  an  effectual  legal 

remedy.     State  ex  rel.  v.  Paterson,  N.  &*  N. 

Y.  R.  Co.,  9  Am.  6-  Eng.  R.  Cas.  134,  43  N. 

J.  L.  505  ;  affirmed  in  i\^  N.J.  L.  186. 

An  application  for  a  mandamus  to  com- 
pel the  receiver  of  a  railroad  appointed  in  a 
foreclosure  suit  to  operate  the  road  will  be 
denied,  as  there  is  a  plain,  speedy,  and  ade- 
quate remedy,  if  the  plaintiff  is  entitled  to 
any,  in  the  cause  and  court  in  which  the 
defendant  was  appointed  receiver.  People 
ex  rel.  v.  McLane,  62  Cal.  616. 

A  petition  for  mandamus  to  compel  a 
transfer  of  shares  by  a  corporation  to  the 
petitioner  will  not  be  granted  if  the  peti- 
tioner can  be  indemnified  for  the  refusal  by 
the  recovery  of  damages  in  an  action  at 
law.     Murray  v,  Stevens,  1 10  Mass.  95. 

Under  the  111.  statute  mandamus  will  lie 
in  all  cases  when  it  affords  a  proper  and 
sufficient  remedy  for  the  enforcement  of  a 
legal  right  or  an  obvious  duty,  the  perform- 
ance of  which  involves  no  discretion,  with- 
out regard  to  whether  there  may  be  some 
other  adequate  remedy  or  not.  Ohio  &^  M. 
R.  Co.  V.  People  ex  rel,,  30  Am.  Sf  Eng.  R. 
Cas.  427,  121  ///.  483,  \-^  N.  E.  Rep.  236, 
II   IVes!.  Rep.  375. 

Where  the  remedy  by  action  is  not  so 
efficacious  as  that  by  mandamus,  the  right 
to  the  latter  is  not  taken  away.  Ex  parte 
Attorney-General  oj  New  Brunswick,  17  New 
Brun.  667.— Quoting  Rex  v.  Severn  &  W. 
R.  Co.,  2  B.  &  Aid.  646. 

The  charter  of  the  Paterson  &  Newark 
R.  Co.  provided  that  in  passing  by  the  lands 
of  the  Mount  Pleasant  cemetery  the  said 
railroad  should  be  constructed  entirely  out- 
side a  stone  wall  embankment  of  the  ceme- 
tery, and   near  the   line  of  high   water  in 


MANDAMUS,  4-7. 


S76 


the  Passaic  river ;  and  tliat  before  entering 
upon  tlie  lands  the  company  should  enter 
into  an  agreement  with  the  cemetery  com- 
pany to  construct  a  suitable  stone  wall,  not 
less  than  six  feet  high,  on  the  line  between 
s.iid  railroad  and  the  cemetery  grounds. 
The  company  located  its  road  as  indicated, 
and,  before  it  commenced  the  construction 
thereof,  executed  and  delivered  to  the  ceme- 
tery com[jany  a  bond  conditioned  to  con- 
struct a  wall  in  compliance  with  the  charter 
within  three  years.  On  application  for  a 
mandamus  to  compel  the  company  to  build 
the  wall — held,  that  it  was  the  legislative 
purpose  to  secure  to  the  relator  a  satisfactory 
location  of  the  railroad,  and  an  agreement 
for  the  erection  of  a  wall,  and  that  the 
specific  duty  imposed  on  the  company  by 
its  charter  in  this  respect  had  been  fully 
performed,  and  that  the  relator  had  ade- 
quate legal  remedy  on  the  contract,  and  if 
that  remedy  had  become  inefficacious  by 
reason  of  delay  and  the  intervening  insol- 
vency of  the  obligor,  the  relator  could  have 
no  relief  by  mandamus.  State  ex  rel.  v. 
Pater  son,  N.  6^  N.  Y.  R.  Co.,9  Atn.  &-  E>tg. 
A'.  Cas.  1 34,  43  N.  J  L.  505  ;  affirmed  in  45 
N.J.  L.  186. 

4.  Nut  granted  if  uiiavailiii{|r  or 
obedience  impossible.— A  mandamus 
will  not  be  granted  where  it  is  clear  thatjt 
will  prove  unavailing.  So  it  will  not  issue 
to  compel  a  company  to  put  its  road  in 
proper  condition,  where  it  is  apparent  that 
the  financial  condition  of  the  company  ren- 
ders it  impossible  for  it  to  comply  with  the 
order.  Ohio  &»  M.  R.  Co.  v.  People  ex  rel., 
30  Am.  tSr^  Eng.  R.  Cas.  509,  120  ///.  200,  11 
A'.  E.  Rep.  347,  9  West.  Rep.  167.  In  re 
Bristol  ^S^*  N.  S.  R.  Co.,  L.  R.  3  Q.  B.  D.  10, 
47  /../•  Q-  ii-  l^-  48.  26  IV.  R.  236. 

5.  Not  a  substitute  for  appeal  or 
writ  of  error.— Mandamus  will  not  lie  to 
relieve  against  the  acts  of  an  inferior  court, 
where  the  party  complaining  has  a  remedy 
hy  appeal  or  writ  of  error.  State  ex  rel,  v. 
Luhke,  85  Mo.  338. 

A  railroad  company  instituted  a  suit  in 
rci)levin  to  get  possession  of  certain  cars. 
On  a  plea  to  the  jurisdiction  of  the  court 
the  suit  was  dismissed  at  the  costs  of  plain- 
tiff and  execution  awarded.  Htli,  that  this 
was  a  final  decree,  reviewable  on  a  writ  of 
error,  but  not  by  mandamus.  Ex  parte 
Puiltimore  &•  O.  R.  Co.,  108  U.  S.  566.  2  Sup. 
Ct.  Rep.  876.— Following  Ex  parte  Des 
Moines  &  M.  R.  Co.,  103  U.  S.  796. 


6.  Will  not  lie  to  review  discre- 
tionary action.— A  mandamus  will  issue 
only  when  the  duty  to  be  performed  is  min- 
isterial in  its  character ;  when  a  duty  is  im- 
posed upon  an  officer  requiring  the  exer- 
cise of  judgment  or  discretion,  a  mandamus 
will  not  lie.  Bledsoe  v.  International  R.  Co.,' 
40  Tex.  537.— Quoting  Decatur  7>.  Paul- 
ding, 14  Pet.  (U.  S.)  515.  — FOLLOWKD  IN 
Galveston,  B.  &  C.  N.  G.  K.  Co.  v.  Gross, 
47  Tex.  428. 

A  railroad  company  appealed  from  a  de- 
cree in  a  U.  S.  circuit  court,  directing  a  sale 
of  the  road,  to  the  supreme  court,  but  the 
court  below  refused  to  accept  the  superse- 
deas bond  offered.  Held,  that  the  supreme 
court  will  not  attempt  to  control  the  discre- 
tion of  the  lower  court  in  rejecting  the  bond 
by  issuing  a  mandamus  to  compel  it  to  ac- 
cept it,  though  not  agreeing  with  it  in  the 
reasons  for  such  refusal ;  but  it  will  grant 
the  supersedeas  upon  filing  the  proper  bond. 
Ex  parte  Milwaukee  <&>»  M.  R.  Co.,  5  Wall. 
,l/.S.)  188. 

A  suit  between  two  railroads,  growing  out 
of  the  right  to  use  a  narrow  pass  or  canyon, 
was  reversed  by  the  U.  S.  supreme  court. 
After  it  was  sent  f  -ick  the  lower  court  per- 
mitted supplemental  bills  to  be  filed  which 
developed  a  state  of  facts  antagonistic  to 
the  company  prevailing  in  the  supreme 
court.  That  company  then  petitioned  for  a 
mandamus  to  compel  the  lower  court  to 
carry  out  the  mandate  of  the  supreme  court. 
Held,  that  the  supplementary  proceedings 
were  within  the  discretion  of  the  court,  and 
that  a  mandamus  would  not  lie  to  review 
the  exercise  of  the  discretionary  powers  of 
a  lower  court.  Ex  parte  Denver  &*  R.  G. 
R.  Co.,  loi  U.  S.711. 

2.  In  Particular  Cases. 

7.  Regulatint;  construction  and 
operation  of  railroads,  generally.— 

A  mandamus  is  the  proper  remedy  to  com- 
pel a  company  to  grade  its  tracks,  so  as  to 
make  its  crossings  convenient  and  useful; 
to  compel  it  to  construct  its  ro.id  across  a 
stream  so  as  not  to  interfere  with  naviga- 
tion ;  to  replace  a  part  of  its  track  which  it 
has  wrongfully  taken  up ;  to  operate  its  road 
as  a  continuous  line ;  to  compel  it  to  build  a 
bridge  ;  to  run  daily  trains ;  and,  where  there 
is  a  statute  requiring  it,  to  compel  it  to  stop 
a  certain  number  of  trains  each  day  at  a 
particular  station,  and  to  perform  any  other 


I 


'  s  i| 


MANDAMUS,  8-10. 


!? 


f 


■      1% 


specific  duty  which  it  owes  to  the  public. 
0/n'o  &■*  M.  R.  Co.  V.  People  ex  rel. ,  30  Am. 
'5*  Eng.  R.  Cits.  509,  1 20  ///.  2CX),  1 1  A'.  £, 
Rep.  347,  9  West.  Rep.  167.— Ari'ROVED  IN 
Illinois  C.  R.  Co.  v.  People,  143  II!.  434. 

A  railroad  company,  by  consolidation 
,  with  another  company,  became  the  owner 
of  two  lines  of  road  between  two  termini. 
It  abandoned  one  of  the  two  lines,  but  sub- 
stantially accommodated  the  people  of  the 
stale  by  operating  tin;  other  line  between 
the  two  points.  Held,  that  it  could  not  be 
compelled  by  mandamus  to  maintain  and 
operate  both  lines,  there  being  no  public 
ri^lit  to  protect,  and  no  public  duty  to  en- 
force. People  V.  Rome,  IV.  &^  O.  R.  Co.,  28 
Am.  &•  Eng.  R.  Cas.  35,  103  A^.  F.  95,  8  N. 
E.  Rep.  369,  3  N.  V.  S.  R.  39 ;  reversing  38 
Hun  640,  mem.  State  v.  Des  Moines  (S~»  Ft. 
D.  R.  Co.,  84  /o'Mi  419,  51  iV.  IV.  Rep.  38. 

8. of  street  railroads. — Manda- 
mus will  lie  against  a  street-railway  com- 
pany to  compel  it  to  perform  a  clear  legal 
tluty  to  the  public.  State  ex  rel.  v.  Jackson- 
ville St.  R.  Co.,  50  Am.  (S-»  Eng.R.  Cas.  179, 
29  Ela.  590,  10  So.  Rep.  590. 

The  performance  of  the  duties  which  a  • 
street-railway  company  owes  to  the  public 
to  operate  its  lines  in  accordance  with  the 
provisions  of  a  city  ordinance  under  which 
its  road  was  constructed  may  be  enforced 
by  mandamus.  Potwin  Place  v.  Topeka  R. 
Co.,  56  Am.  Sf  Eng.  R.  Cas.  549,  51  Kan. 
609,  33  Pac.  Rep.  309. — Quoting  Sioux 
City  St.  R.  Co.  V.  Sioux  City,  138  U.  S.  107; 
Atchison  St.  R.  Co.  v.  Nave,  38  Kan.  744. 

Qucere,  whether  a  city  railway  company 
can  be  compelled  by  mandamus  to  con- 
struct and  operate  a  line  of  railroad  along  a 
street  in  accordance  with  conditions  in  an 
ordinance  which  it  has  accepted,  no  such 
<luty  being  imposed  by  its  charter.  People  ex 
rel.v.  Chicago  IV.  D.  R.  Co.,  25  Am.  &*  Eng. 
R.  Cas.  258,  1 18  ///.  1 13,  7  A^.  E.  Rep.  1 16. 

A  city  council  required  a  street-railway 
company  to  remove  so  much  of  the  ties 
upon  2400  feet  of  its  road  as  were  outside 
of  the  stringers  on  which  the  rails  rested,  so 
that  a  concrete  foundation  might  be  used  in 
paving  the  street  in  which  the  track  was 
laid,  and  assigned  as  a  reason  that,  in  the 
judgment  of  the  council  and  board  of  pub- 
lic works  of  the  city,  if  such  removal  was 
not  made  the  passage  of  the  cars  would,  by 
their  vibration,  injure  the  concrete  founda- 
tion. A  compliance  with  the  requirement 
necessitated   tho  adoption   of  some   other 


form  of  bracket  or  mode  of  staying  the 
stringers  upon  the  portion  of  road  affected. 
It  was  conceded  that  other  brackets  and 
other  modes  of  staying  stringers  were  used 
and  employed  in  the  city,  in  view  of  which 
concession  the  requirement  was  held  reason- 
able, and  a  mandamus  was  granted  to  en- 
force it.  Detroit  v.  Ft.  Wayne  &•  E.  R. 
Co.,  50  Am.  &*  Eng.  R.  Cas.  447,  90  Mich. 
646,  51  A'.   W.  Rep.  688. 

The  objections  that  the  like  requirement 
was  not  made  of  other  street-railway  com- 
panies, and  that  it  was  made  by  resolution, 
instead  of  by  ordinance,  and  that  a  com- 
pliance therewith  would  involve  large  ex- 
peiise  to  the  company,  are  untenable.  De- 
troit V.  Ft.  Wayne  &*  E.  R.  Co.,  50  Am.  Qr* 
Eng,  R.  Cas.  447,  90  Mich.  646,  51  JV,  W, 
Rep,  688. 

O.  Coiiiiielliiigr  the  purchase  of 
hiutl. — The  Great  Western  R.  Co.  cannot 
be  compelled  to  purchase  land  which  had 
been  inclosed  by  one  of  the  engineers  with- 
out the  knowledge  of  the  directors,  but 
which  they  had  never  expressed  any  inten- 
tion to  acquire  permanently.  Baby  v.  Great 
Wester r  R.  Co..  13  U.  C.  Q.  li.  291. 

]<>.  (.\»iii|K>Iliii^  construction  of 
roa«l.* — Mandamus  will  lie  against  a  cor- 
poration to  compel  it  to  perform  a  specific 
duty,  to  build  its  road,  imposed  by  its  char- 
teV,  or  the  general  law,  when  the  right  to 
have  it  perfornied  is  a  complete  and  per- 
fect legal  right,  and  tticre  is  no  other  spe- 
cific, adequate  remedy.  State  ex  rel.  v. 
Southern  Minn.  R.  Co.,  18  Minn.  40  (Gil. 
21). — FoLi.owKD  IN  Kansasex  rel.  v.  South-' 
ern  Kan.  R.  Co.,  22  Am.  &  Eng.  R.  Cas. 
19S,  24  Fed.  Rep.  179. 

Mandamus  is  a  proper  remedy  to  compel 
a  railroad  company  in  making  its  track 
across  a  navigable  stream  to  pursue  the 
mode  prescribed  by  its  charter,  and  not  to 
obstruct  the  navigation.  State  ex  rel.  v. 
Korth-EasternR.  Co.,  ^  Rich.  (So.  Car.)  247. 
—  Quoted  in  Moundsville  v.  Ohio  River 
R.  Co.,  37  W.  Va.  92.  Reviewed  in  People 
V.  New  York  C.  &  H.  R.  R.  Co.,  9  Am.  & 
Eng.  R.  Cas.  i,  28  Hun  (N.  Y.)  543,  3  Civ. 
Pro.  II,  2  McCar.  345. 

Where  a  company  has  forfeited  a  part  of 
its  land  grant  by  failing  to  build  a  part  of 
its  road  within  the  time  required,  a  man- 


*  Mandamus  to  compel  a  railroad  company  to 
relay  a  portion  of  its  track.  Sufficiency  of  the 
return,  see  25  Am.  &  Eng.  R.  Cas.  261,  abstr. 


MANDAMUS,  11,  12. 


8T7 


damus  will  not  issue  to  compel  it  to  build 
the  part  of  the  road  to  which  the  forfeiture 
attaches.  Kansas  ex  rel.  v.  Southern  Kan. 
K.  Cj„  22  Am.  &>  Eng.  R.  L'as.  198,  24  Fed. 
Rep,  179. —  Following  State  ex  rel.  v. 
Southern  Minn.  R.  Co.,  18  Minn.  40  (Gil. 
21). 

Piaintiflf,  a  taxpayer  of  a  certain  town, 
sought,  on  behalf  if  himself  and  others,  to 
compel  a  company  to  re-locate  the  main  line 
of  lis  road'so  as  to  run  through  the  town, 
on  the  ground  that  it  had  originally  been  so 
located,  and  had  been  aided  by  the  town. 
Held,  that  unless  the  interests  of  the  general 
public  were  shown  to  be  injured  by  the  re- 
moval of  the  main  line  from  said  town,  but 
a  branch  built  to  it,  plaintiflwas  not  entitled 
to  the  relief  sought.  If  he  had  suffered  per- 
sonal damage,  his  remedy  was  by  ordinary 
suit.  Crane  v.  Chicago  (&«•  N.  W.  R.  Co.,  74 
Iowa  330,  7  Am.  St.  Rep.  479,  37  A'.  W.  Rep. 

397- 

A  statute  which  obliged  several  railroad 
corporations  having  their  tracks  in  a  city  to 
unite  in  one  station,  and  provided  for  the 
discontinuance  of  some  of  the  existing 
tracks,  and  the  extension  by  the  city  of  a 
street  therein,  enacted  that  the  city  should 
maintain  a  suitable  track  upon  the  exten- 
sion of  the  street,  or  partly  upon  the  exten- 
sion and  partly  upon  the  discontinued  rail- 
road location,  to  be  connected  with  the 
tracks  of  one  or  more  of  the  railroads  in  the 
city,  "  for  the  accommodation  of  the  busi- 
ness establishments  on  the  line  of  said  ex- 
tension which  were  accommodated  by  the 
tracks  of"  a  certain  railroad  when  the  act 
was  passed.  Held,  that,  after  the  city  had 
in  its  discretion  constructed  a  track  for  the 
purposes  named,  the  court  could  not,  on  a 
petition  for  a  writ  of  mandamus,  exercise  a 
supervisory  power  over  the  mode  in  which 
it  was  done,  and  determine  whether  a  track 
in  another  place  would  better  accommodate 
the  petitioner.  Rice,  B.  &>  F.  M.  &•  I.  Co. 
V.  Worcester,  1^0  Mass.  575. 

1 1 .  of  depots    or   stations.*— 

The  courts  are  not  authorized  by  mandamus 
to  control  a  railroad  company's  discretion  in 
tlie  matter  of  the  location  of  its  depot  build- 
ings so  far  as  to  indicate,  in  any  case,  the  exact 
spot  of  such  location.  Florida  C.  &*  P.  R. 
Co.  V.  State  ex  rel.,  56  Am.  &•  Eng.  R.  Cas. 

*  Compelling  a  railroad  company  to  build  sta- 
tions, see  notes,  35  Am.  &  Eng.  R.  Cas.  464  ;  30 
/(/.  180  ;  29  Id.  485  ;  22  Id.  509. 


306,  31  Fla.  482,  II  So.  Rep.  103.— Apply- 
ing People  V.  New  York.  L.  E.  &  W.  R.  Co., 
104  N.  Y.  58;  Northern  Pac.  R.  Co.  v.  Wash- 
ington Ter.,  142  U.  S.  492,  12  Sup.  Ct.  Rep. 
283.  Quoting  Marsh  v.  Fairbury,  P.  &  N. 
W,  R.  Co.,  64  111.  414. 

The  charter  of  the  Northern  Pacific  rail- 
road imposed  no  specific  duties  as  to  ,  e 
location  of  stations  along  its  line.  For  a 
time  trains  stopped  at  a  town,  but  no  depot 
was  built.  After  the  road  was  extended  a 
station  was  located  four  miles  beyond,  and 
trains  no  longer  stopped  at  the  town.  On 
mandamus  to  compel  a  station  at  the  town 
it  appeared  that  such  station  would  not  pay 
expenses,  that  since  the  building  of  the  road 
the  town  had  largely  depopulated,  and  that 
a  village  around  the  station  was  fast  becom- 
ing the  principal  town,  and  better  accommo- 
dated the  community  as  a  whole.  Held, 
that  the  writ  ought  not  to  issue.  Northern 
^ac.  R.  Co.  V.  Washington  Ter.  ex  rel.,  48 
Avt.  <&*  Eng.  R.  Cas.  475,  142  U.  S.  492,  12 
Sup.  Ct.  Rep.  283.— Applied  in  Florida  C. 
or  P.  R.  Co.  V.  State  ex  rel.,  31  Fla.  482. 

12.  of  bi*i<1{;es  uikI   viaducts. 

— Where  a  duty  rests  upon  a  company  to 
construct  a  viaduct  over  its  railroad  tracks 
where  the  same  cross  a  public  street  in  a  city, 
mandamus  will  ordinarily  lie  to  compel  the 
company  so  to  construct  such  viaduct.  And 
the  action  may,  in  some  cases,  be  prosecuted 
in  the  name  of  the  state  by  the  county  at- 
torney. State  V.  Missouri  Pac.  R.  Co.,  20 
Am.  &*  Eng.  R.  Cas.  45,  33  Kan.  176,  5  Pac. 
Rep.  772. 

And  it  is  no  objection  to  granting  such 
relief  that  the  company  is  liable  to  indict- 
ment for  failing  to  erect  or  maintain  such 
bridges.  People  ex  rel.  v.  Troy  &>  B.  R.  Co., 
37  How.  Pr.  {N.  Y.)  427. 

Under  La.  Act  133  of  1888  mandamus  is 
provided  as  a  special  statutory  remedy  ap- 
plicable to  the  enforcement  of  obligations 
involved  in  a  contract  between  the  city  and 
a  street-railway  corporation  relative  to  the 
erection  and  maintenance  of  bridges.  State 
ex  rel.  v.  Canal  &*  C.  St.  R.  Co.,  44  La.  Ann. 
526,  10  So.  Rep.  940. 

Towns  may  compel  a  railroad  bound  to 
maintain  such  bridges  to  make  any  reason- 
able repairs  by  the  writ  of  mandamus,  or  if 
they  have  been  obliired  to  make  expendi- 
tures thereon,  may  reimburse  themselves  by 
an  action  on  the  case.  State  v.  Gorham,  "7 
Me.  451. 

Where  a  mandamus  commanding  a  com- 


37tJ 


MANDAMUS,  13-15. 


pany  to  make  a  bridge  and  carry  a  highway 
over  its  track  in  conformity  with  plans  and 
sections  tiled  by  a  company  goes  beyond  the 
obligation  imposed  by  law,  the  writ  is  al- 
together bad.  Rej;.  v.  Caledonian  R.  Co.,  i6 
Q.  B.  19,  \^Jur.  3y6,  zo  L.J.  Q.  B.  i47- 

A  con)pany  wholly  without  funds  will  not 
be  compelled  by  mandamus  to  construct  a 
bridge  in  lieu  of  a  level  crossing  pursuant  to 
an  order  of  the  board  of  trade.  In  re  Bristol 
6-  N.  S.  R.  Co.,  L.  R.,  3  Q.  B.  D.  10.  47  L. 
J.  Q.  B.  D.  48,  26  W.  R.  236. 

13.  Coiiipelliiit;  the  restoration  of 
streets  and  lii{fli\vay.s.— Mandamus  will 
lie  to  require  a  company  having  its  track 
upon,  along,  or  across  the  streets  and  alleys 
of  a  city  so  to  build  and  erect  the  same,  and 
level  and  grade  the  said  streets  and  alleys, 
their  full  width,  as  to  render  the  use  of  the 
streets  and  alleys  and  the  crossing  of  the 
track  convenient  for  the  public.  Indianap- 
olis  &*  C.  K.  Co.  V.  State  ex  rel.,  37  Ind. 
489,  5  Am.  Ry.  Rep.  170.— Distinguishing 
Louisville  &  N.  A.  R.  Co.  v.  State,  25  Ind. 
177. — Reviewed  in  Moundsville  v.  Ohio 
River  R.  Co.,  37  W.  Va.  92 ;  People  v.  New 
York  C.  &  H.  R.  R.  Co.,  9  Am.  &  Eng.  R. 
Cas.  I,  28  Hun  (N.  Y.)  543,  3  Civ.  Pro.  u. 
2  McCar.  345. 

Mandamus  lies  by  the  city  against  a  rail- 
road company  to  compel  performance  of  a 
contract  to  pave  a  street  in  consideration 
of  a  grant  of  right  of  way  therein.  Stat^ 
ex  rel.  v.  New  Orleans  &•  N.  E.  R.  Co. ,  43 
Am.  &•  Eng.  R.  Cas.  263,  42  La.  Ann.  11,7 
So.  Rep.  84. 

La.  Act  133  of  1888.  which  purports  to 
provide  a  summary  remedy  by  mandamus 
to  enforce  the  obligations  of  certain  cor- 
porations, with  reference  to  the  paving, 
grading,  repairing,  reconstructing,  or  care  of 
any  street,  highway,  bridge,  culvert,  levee, 
canal,  ditch,  or  crossing,  cannot  be  con- 
strued as  extending  to  an  obligation  to  con- 
struct a  new  levee  or  embankment.  State 
ex  rel.  v.  New  Orleans  &*  N.  E.  R.  Co.,  43 
A/n.  (Sf  Eng.  R.  Cas.  258,  42  La.  Ann.  138,  7 
So  Rep.  226. 

Mandamus  is  an  appropriate  remedy  t'j 
compel  the  restoration  of  a  highway  bv  a 
railway  to  its  proper  condition,  and,  in  this 
respect,  to  the  company  to  perform  its 
charter  duties.  State  ex  rel.  v.  Hannibal  <&* 
St.  J.  R.  Co.,  29  Am.  <&«•  Eng.  R.  Cas.  604, 
86  Mo.  13. 

Supervisors  of  a  township  may  apply  for 
a  writ  of  mandamus  commanding  a  railroad 


company  to  make  a  road  for  public  ac- 
commodation, required  by  their  charter. 
Whitemarsh  Tp.  v.  Philadelphia,  G.  (3-  A', 
R.  Co..  8  U'atts  &•  S.  (Ra.)  305. 

Mandamus  proceedings  lie  to  determine 
the  mode  in  which  a  railroad  company  shall 
be  required  to  restore  a  street  and  to  com- 
pel it  to  perform  its  duty,  aitliuugh  the  city 
council  has  not  yet  changed  the  established 
grade  of  the  street  to  conform  ^o  the  lawful 
change  which  the  relator  claims  should  be 
adopted.  State  ex  rel.  v.  Minneapolis  i^ 
St.  L.  R.  Co.,  35  Am.  &'  Eng.  R.  Cas.  250, 
39  Minn.  219,  39  N.  li\  Rep.  153. 

The  manner  in  which  the  duty  of  restor- 
ing the  streets  should  be  performed  being 
uncertain,  the  mandate  of  the  co".rt  may 
properly  be  specific  in  that  regard.  State  ex 
rel.  v.  Minneapolis  &^  St.  L.  R.  Co.,  35  //;//. 
&>  Etig.  R.  Cas.  250, 39  Minn.  219,  39  A'.  W. 
Rep.  153. 

14.  and   streams.— A   company 

succeeding  to  all  the  rights  and  property 
of  another  company  may  be  compelled  to 
restore  the  waters  of  a  stream  to  their  origi- 
nal channel,  which  has  been  wrongfully 
diverted  by  the  former  company.  Lefurgy 
V.  New  VorJb&'  N.  R.  Co.,  21  A^.  V.  S'.  R. 
113,  50  Hun  606,  fnem.,  3  N.  V.  Stipp.  302. 
— Applying  Brown  v.  Cayuga  &  S.  R.  Co., 
12  N.  Y.  486. 

Where  it  appears  that  the  change  in  the 
bed  of  the  stream  did  not  take  place  at 
once  upon  making  an  excavation,  the  ac- 
tion will  not  be  barred  in  six  years  from  the 
time  of  the  excavation.  Lefurgy  v.  Ne^v 
YorkSf  N.  R.  Co.,  21  N.  Y.  S.  R.  113,  50 
Hun  606.  mem.,  3  N.   V.  Supp.  302. 

15.  Compelling  carriage  of  freight 
and  passengers,  rnnning  of  trains, 
etc.— Mandamus  lies  to  compel  a  railway 
company  to  stop  all  its  regular  passenger 
trains  at  county  seat  stations  long  enough 
to  allow  passengers  time  to  get  on  and  off 
the  same.  Illinois  C.  R.  Co.  v.  People,  143 
III-  434.  33  ^'  E-  Jiep.  173. 

Mandamus  will  lie  to  compel  a  railroad 
company  to  issue  a  commutation  ticket  to 
one  entitled.  State  ex  rel.  v.  Delaware,  L. 
&•  IV.  R.  Co.,  23  Am.  &>  Eng.  R.  Cas.  470, 

48N./.L.SS- 

The  performance  of  the  duty  to  receive 
and  transport  freight  is  compellable  on  be- 
half of  the  people,  through  the  courts,  by 
mandamus ;  and  their  attorney-general  is 
the  proper  officer  to  set  the  process  in  mo- 
tion.    The    fact  that    injured    individuals 


■P"S9! 


MANDAMUS,  10,  17. 


3T9 


may  have  private  remedies  for  damages 
sustained  does  not  preclude  the  state  from 
its  remedy  by  mandamus,  where  tliere  is  a 
general  or  partial  suspension  of  the  duty  of 
receiving  or  transporting  freight  afleciing 
large  numbers  of  people.  People  v.  New 
York  C.  &-  //.  A'.  A'  Co.,  9  Am.  &^  Eng.  R. 
Cas.  I,  28  //»n  (iV.  I'.J  543,  3  C/v.  Pro.  11,2 
McLtir.  345  ;  reversing  2  Civ.  Pro.  82. — AP- 
I'RoviNG  Railroad  Com'rs  v.  Portland  &  O. 
C.  R.  Co..  63  Me.  269.  Reviewing  Union 
Pac.  R.  Co.  V.  Hall,  91  U.  S.  343  ;  State  v. 
Hartford  &  N.  H.  R.  Co.,  29 Conn.  538;  Peo- 
ple ex  rel.  v.  Rochester  &  S.  L.  R.  Co., 
14  Hun  373,  76  N.  Y.  294;  People  ex  rel.  v. 
Boston  &  A.  R.  Co.,  70  N.  Y.  569;  State  ex 
rel.  V.  North  Eastern  R.  Co.,  9  Rich."  (So, 
Car.)  247 ;  In  re  New  Brunswick  &  C.  R. 
&  L.  Co.,  I  P.  &  B.  667 ;  Chicago  &  N.  W. 
R.  Co.  V.  People  ex  rel.,  56  111.  365  ;  Farmers' 
L.  &  T.  Co.  V.  Henning,  17  Am.  Law  Reg. 
(N.  S.)  266;  People  ex  rel.  v.  Dutchess  & 
C.  R.  Co..  58  N.  Y.  152;  New  York  C.&  H. 
R.  R.  Co.  V.  People,  12  Hun  195,  74  N.  Y. 
302 ;  Indianapolis  &  C.  R.  Co.  v.  State  ex 
rel.,  37  Ind.  489;  State  v.  New  Haven  &  N. 
Co.,  37  Conn.  153;  Rex  v.  Severn  &  W.  R. 
Co.,  2  B.  &  Aid.  646;  People  v.  Albany  & 
V.  R.  Co.,  24  N.  Y.  261. 

The  refusal  of  a  company  to  receive  and 
transport  freight  is  not  such  a  public  wrong 
as  will  authorize  a  mandamus.  If  the  in- 
dividual shipper  suffers  a  loss,  he  is  en- 
titled to  an  action  for  damages.  People  v. 
iWw  York,  L.  E.  &-  IV.  R.  Co.,  63  How.Pr. 
(X.  F.)  291. — Following  People  ex  rel.  7/. 
New  York,  L.  E.  &  W.  R.  Co.,  22  Hun  533. 
Quoting  People  v.  Albany  &  S.  R.  Co., 
57  N.  Y.  161. 

Mandamus  will  not  lie,  in  the  absence  of  a 
statutory  duty,  to  compel  a  railway  company 
to  increase  the  number  of  trains  on  its  road, 
or  to  run  daily  a  particular  number  of  trains 
over  its  road.  Ohio  &*  M.  R.  Co.  v.  People 
ex  rel.,  30  Am.  &^  ^ng.  R.  Cas.  509,  120  ///. 
200,  II  N.  E.  Rep.  347,  9  West.  Rep. 
167. 

A  mandamus  will  not  issue  to  compel  a 
company  to  run  more  than  one  train  a  day 
to  a  particular  station,  each  way,  where  it 
appears  that  there  is  not  business  enough 
to  make  it  profitable  to  do  so,  and  where 
there  is  another  station  not  more  than  two 
miles  distant  at  which  all  trains  stop.  Peo- 
ple ex  rel.  v.  Lottg  Island  R.  Co.,  21  Nun  (A^. 
V.)  125.  Ex  parte  Attorney-General  of  New 
Brunsmicfc,  17  A'ew  Drtin.  667. 


10.  Coiiipclliiif;  traii»i>orfatioii  ul' 

cottl.— Mandamus  does  not  lie,  when  the 
relator  who  seeks  to  transport  his  coal  over 
a  lateral  railroad  has  not  opened  or  mined 
his  coal  or  offered  it  in  cars  for  transporta- 
tion. If  this  has  been  caused  by  the  refusal 
of  the  proprietor  to  pass  the  relator's  empty 
cars  into  his  mine,  such  refusal  forms  the 
matter  of  complaint;  for  he  has  an  un- 
doubted right  to  such  a  passage,  and  if  tiie 
proprietor  does  not  prescribe  reasonable 
rules  for  its  exercise,  the  court  will  prescribe 
them.  Cmn.  ex  rel.  v.  Corey,  2  Pittsb.  {Pa.) 
444. 

The  transporter  has  no  right  to  use  the 
inclined  plane,  the  tipple,  or  chute,  the 
screens,  or  the  landing  of  the  proprietor  of 
a  lateral  railroad,  as  these  are  his  private 
property.  Com.  ex  rel.  v.  Corey,  2  Pittsb. 
(Pa.)  444. 

When  such  transporter  has  provided  him- 
self with  a  landing  immediately  above  that 
of  the  proprietor  of  the  road,  he  must  ap- 
proach such  landing  from  the  head  of  the 
inclined  plane  by  means  f)f  his  own  provid- 
ing.    Com.  ex  rel.  v.  Corey,  2  Pittsb.  (Pa.) 

444- 

17.  Regulation  of  cliarges.— Where 

the  charter  of  a  corporation,  or  a  general 
statute,  imposes  a  specific  duty,  either  in 
terms  or  by  implication,  and  where  there  is 
no  specific  or  adequate  remedy,  a  writ  of 
mandamus  will  be  awarded,  as  well  for  pri- 
vate persons  as  for  the  public.  So  where  a 
statute  authorizes  county  subscriptions  to 
railroad  stock,  with  a  provision  that  tiie 
company  shall  receive  tax  certificates  in 
payment  of  either  freight  or  passage,  and 
the  road  accepts  a  subscription  thereunder, 
mandamus  is  the  proper  remedy  to  compel 
it  to  take  such  certificates  in  payment  of 
fare.  Mobile  &>  &.  R.  Co.  v.  Wisdom,  5 
Heisk.  (Tenn.)  125,  1  Am.  Ry.  Rep.  107. — 
Distinguished  in  State  ex  rel.  v.  Mobile 
&  M.  R.  Co.,  59  Ala.  321. 

Ordinarily  a  mandamus  will  not  issue 
where  the  party  has  an  adequate  remedy 
by  ordinary  action  at  law.  So  where  a 
statute  authorizes  the  recovery  of  double 
damages  for  an  excessive  freight  charge,  a 
mandamus  will  not  be  award«d.  State  ex 
rel.  V.  Mobile  (S^  M.  R,  Co.,  59  Ala.  321. — 
Distinguishing  Mobile  &  O.  R.  Co.  v. 
Wisdom,  s  Heisk.  (Tenn.)  125;  Chicago  & 
N.  W.  R.  Co.  V.  People  ex  rel.,  56  111.  365.— 
Followed  in  Mobile  &  M.  R.  Co.  v. 
Steiner,  61  Ala.  559.     Quoted  in  Murray 


I 

3 


r    I 


I'l'-.T:     ' 


380 


MANDAMUS,   18-21. 


^  I 


if  v.: 


ty.  Gulf,  C.  &  S.  F.  R.  Co.,  22  Am.  &  Eng. 
R.  Las.  464,  63  Tex.  407. 

18.  Eiirorceiiieiit  of  taxes.— A  rail- 
ro.id  company  aj;ainst  whom  taxes  were 
assessed,  and  the  assessments  removed  into 
the  supreme  court  and  airirmed,  may  be  re- 
quired to  pay  tliein  by  a  mandamus  if  there 
is  no  (Jtiier  adequate  remedy  for  collecting 
them,  as  where  it  has  leased  its  road  and 
has  but  little  personal  property.  Person  v. 
Jl'arrt'H  A\  Co.,  32  N.  J.  L,  441. 

In  mandamus  to  compel  a  county  treas- 
urer to  pay  certain  school  taxgs  collected 
from  a  railroad  to  the  treasurer  of  the  school 
district,  the  county  treasurer  cannot  set  up 
that  the  township  in  which  the  school  dis- 
trict was  situate  had  subscribed  a  certain 
sum  to  the  railroad,  a  part  of  which  was 
unpaid ;  that  under  the  act  of  April  16, 
1869,  providing  for  funding  and  paying  rail- 
road debts  of  counties,  towns,  etc.,  he  was 
required  to  pay  into  the  state  treasury  all 
taxes  collected  in  the  town  for  any  purpose 
on  railroads,  when  it  does  not  appear  that 
tile  town  and  school  district  were  territori- 
/  ally  the  same.  Allhands  v.  People  ex,  rel., 
82  ///.  234. 

IW.  of  municipal  aid  bonds.*— 

Mandamus  will  lie  against  a  board  of  county 
commissioners  to  compel  them  to  take  ac- 
tion upon  the  petition  of  a  taxpayer  of  a 
township  asking  them  to  take  stock  in  a 
railroad  company  to  the  amount  of  money 
collected  on  a  tax  voted  for  that  purpose. 
PJlster  V.  State,  82  Ind.  382. 

When  a  municipality,  under  the  Mich. 
Railroad  Aid  Law  (S.  L.  1869,  p.  89),  has 
issued  and  deposited  bonds  in  aid  of  a  rail- 
road with  the  state  treasurer,  who,  on  de- 
mand therefor,  has  declined  to  deliver  the 
same  to  the  proper  authorities  of  such 
municipality,  a  writ  of  mandamus  will  be 
granted  to  compel  such  delivery.  People 
ex  rel.  v.  State  Treasurer,  23  Mich.  499,  i 
Am.  Ky.  Rep.  96. 

The  county  court  will  not  be  compelled 
by  mandamus  to  issue  a  warrant  on  the 
common  fund  of  the  county  for  the  pay- 
ment of  railroad  bonded  indebtedness,  when 
the  result  would  be  to  withdraw  from  the 
treasury  all  the  funds  necessary  for  the  sup- 
port of  the  county  government,  and  thus  to 
disrupt  and  disorganize  it.     State  ex  rel.  \. 

*  Mandamus  in  municipal  bond  cases,  see 
notes,  12  Am.  &  Eng,  R.  Cas.  609 ;  15  Id.  629. 


Macon  County  Court,  68  Mo,  29.— QUOTING 
Carroll  County  Sup'rs  v.  United  States,  18 
Wall.  (U.  S.)  77 ;  Com.  ex  rel.  v,  Philadel- 
phia County  Com'rs,  i  Whart.  (Pa.)  i. 

Mandamus  is  not  the  proper  remedy  by 
which  to  compel  the  delivery  of  municipal 
debentures  claimed  under  a  promised  bonus 
to  a  railway.  Grand  Junction  A'.  Co.  v. 
Peterborough  County,  1 3  Ont,  App.  420.  See 
also  Grand  Junction  K.  Co.  v.  Peterborough 
County,  6  Ont.  App.  339 ;  re^iersing  45  U.  C, 
Q,  n.  302. 

20. of  state  aid  lionds.— Section 

8  of  the  N.  Car.  Ordinance  of  the  Conven- 
tion of  1S68  having  provided  that,  when  the 
president  and  chief  engineer  of  the  North- 
Western  North  Carolin.'i  R.  Co.  should  have 
complied  with  certain  terms  in  respect  to 
the  first  division  of  the  said  road,  the  gov- 
ernor should  direct  that  the  public  treasurer 
should  make  a  loan  to  the  company  by  the 
issue  of  a  certain  amount  of  state  bonds, 
and  the  terms  having  been  complied  with — 
held,  that  the  company  was  entitled  to  have 
a  peremptory  mandamus  to  compel  the 
treasurer  to  issue  the  bonds,  notwithstand- 
ing the  subsequent  legislation  contained  in 
the  acts  of  1868-69,  ch.  32,  of  1869-70,  clis. 
71  and  100,  as  all  those  acts  taken  together 
left  the  ordinance  above  mentioned  in  full 
force  and  effect.  North-  Western  N.  C.  R. 
Co.  V.Jenkins,  65  A^.  Car.  173. 

21.  Mandamus  to  inferior  courts. 
— Where  the  supreme  court  of  the  United 
States  has  decided  a  controversy  as  to  the 
right  of  contending  parties  to  the  possession 
of  a  railroad,  and  has  decided  that  one  of 
the  parties  is  entitled  to  possession,  a  man- 
damus will  issue  directing  the  circuit  judge 
to  proceed  to  execute  the  judgment  of  the 
court.  Ex  parte  Mihuaukee  R,  Co.,  5  Wall, 
{U.S.)  825. 

Stockholders  in  a  railroad  who  petitioned 
to  be  admitted  as  parties  in  a  suit  to  fore- 
close a  mortgage  on  the  road,  but  who  were 
not  in  fact  admitted  nor  treated  as  parties, 
are  not  entitled  t6  a  mandamus  to  allow  an 
appeal  from  a  decree  entered  in  the  cause. 
Ex  parte  Cutting,  94  U.  S.  id 

Stockholders,  as  such,  cannot  appeal  from 
a  decree  foreclosing  a  mortgage  on  the  road 
represented  by  their  stock  where  t'^ey  are 
not  parties.  In  extreme  cases  they  may  be 
admitted  as  parties  to  protect  their  inter- 
ests, but  the  question  of  such  admission  is 
addressed  to  the  sound  discretion  of  the 


■jfit 


MANDAMUS,  'Jli,  li.'J. 


381 


S    ^'i' 


trial  court,  and  cannot  be  controlled  by  a 
mandamus  to  such  court.  Ex  parte  Cut- 
ting, 94  U.  S.  14. 

A  railroad  company  borrowed  money 
\\om  a  state,  and  executed  a  mortgage  on 
its  p.operty  to  secure  it.  The  state  also  in- 
dorsed an  issue  of  the  bonds  of  the  com- 
pany, and  took  a  statutory  lien  on  the 
property.  Afterwards  the  company  issued 
other  bonds,  and  secured  them  by  a  deed  of 
trust  on  its  property.  A  holder  of  these 
last  bonds  filec^a  bill  to  foreclose  the  deed 
of  trust,  but  no  mention  was  made  of  the 
first  mortgage  to  the  state.  Another  rail- 
road company  was  made  a  party,  and  filed  a 
cross-bill  setting  up  ownership  of  the  first 
mortgage  to  the  state,  claimed  priority,  and 
asked  a  foreclosure.  A  second  suit  was  in- 
stituted to  foreclose  the  statutory  lien  in 
favor  of  the  state,  which  was  answered  by 
the  company  holding  the  first  lien  in  favor 
of  the  state.  Pending  the  suit  the  com- 
pany transferred  its  interest  under  the 
mortgage  to  the  state.  A  decree  was 
entered  ordering  a  sale,  and  giving  the  lat- 
ter mortgage  priority,  but  at  a  later  day  the 
suits  were  consolidated,  and  a  further  de- 
cree entered  decreeing  a  sale,  the  purchaser 
to  take  title  subject  to  such  lien  as  might 
be  finally  adjudicated  to  the  holders  of  said 
first  mortgage.  Held,  that  the  company 
that  had  owned,  but  transferred,  said  first 
mortgage  lien  had  a  right  to  appeal  from 
this  decree,  and  such  appeal  being  refused 
by  the  trial  court,  a  mandamus  would  lie  to 
compel  an  appeal.  Ex  parte  South  &*  N. 
Ala.  R.  Co.,  95  U.  S.  221. 

An  employe  of  a  railroad  obtained  a  judg- 
ment against  the  company  for  a  personal 
injury  which  said  nothing  about  interest. 
On  appeal  the  supreme  court  affirmed  the 
judgment  with  costs,  and  remanded  it  with 
privilege  of  execution.  The  lower  court 
then  entered  judgment  with  $1700  interest 
added.  Held,  that  the  lower  court  had  no 
power  to  add  interest,  and  as  the  amount 
was  too  small  to  be  reviewed  on  writ  of 
error,  d  mandamus  would  issue  directing  the 
court  below  to  strike  off  the  interest.  In  re 
Washington  <S-  G.  R.  Co.,  140  U.  S.<)i,  11 
Sup.  Ct.  Rep.  673. — Following  Ex  parte 
Dubuque  &  P.  R.  Co.,  i  Wall.  (U.  S.)  69; 
Durant  v.  Essex  Co.,  loi  U.  S.  555 ;  Boyce 
V.  Grundy,  9  Pet.  (U.  S.)  275.— Followed 
IN  Green  v.  Chicago,  S.  &  C.  R.  Co.,  49 
Fed.  Rep.  907. 


f*t2.  .MaiHlaiiiiiM    to    K^ovt'i'iior.  —  A 

maiidainiis  lies  againsi  the  g(jveriior  of  the 
state,  as  well  as  any  other  public  function- 
ary, to  compel  the  performance  of  a  purely 
ministerial  duty  enjoined  by  statute.  Ten- 
nessee &^  C.  R.  Co.  V.  Moore  36  Ala.  371. 

Where  a  sum  of  money  is  loaned  by  act 
of  the  legislature  to  a  railroad  company,  on 
its  complying  with  certain  terms  and  con- 
ditions in  said  act  prescribed,  and  the 
governor  is  required,  on  the  performance  of 
these  conditions,  to  accept  its  bonds  for  the 
faithful  application  and  repayment  of  the 
money,  and  to  draw  his  warrant  in  its  favor 
on  the  custodian  of  the  fund  for  the  sum 
thus  loaned,  a  mandamus  will  lie  t«  awmpel 
the  performance  by  the  governor  ®f  this 
ministerial  duty,  since  an  action  for  dam- 
ages, if  it  could  be  maintained,  would  n»t 
afford  adequate  and  complete  redress.  Ten- 
nessee &*  C.  R,  Co.  V.  Moore,  36  Ala.  371. — 
Followed  in  State  ex  rel.  v.  Cobb,  64  Ala. 
127. 

Whether  the  governor,  in  the  perform- 
ance of  duties  devolved  on  him  in  his  offi- 
cial capacity,  can  be  controlled  by  the  judi- 
cial department  of  the  government,  "  is  a 
question  not  free  from  difficulty,  and  em- 
barrassed by  a  conflict  of  authority  " ;  and 
the  court  expresses  no  opinion  on  that  ques- 
tion in  this  case,  nor  on  the  correctness  of 
the  rule  laid  down  in  the  case  of  Tennessee 
cSc  C.  R.  Co.  V.  Moore,  36  Ala.  371.  State  ex 
rel.  V.  Cobb,  7  Am.  &*  Eng.  R.  Cas.  147,  64 
Ala.  127. 

Under  an  application  for  a  mandamus  to 
the  governor  requiring  him  to  issue  the 
bonds  of  the  state  to  a  railroad  company 
under  a  law  alleged  by  him  to  have  been 
passed  by  the  general  assembly  over  his 
veto  without  the  observance  of  the  forms 
prescribed  in  the  constitution,  a  majority 
of  the  court  concurred  in  sustaining  juris- 
diction of  the  application,  and  passing  upon 
the  validity  of  the  law,  reserving  the  ques- 
tion of  power  to  mandamus  the  governor 
for  the  final  hearing  upon  the  return  to  a 
conditional  writ.  Pacific R.  Co.  v.  Governor, 
23  Mo.  353. 

23.  Mauflanins  to  heads  of  depart- 
ments and  public  officers.— A  state 
treasurer  cannot,  in  his  official  capacity,  be 
compelled  by  mandamus  to  pay  out  money 
upon  a  warrant  signed  by  the  governor  and 
attorney-general.  Houston  Tap  &>  />'.  R. 
Co.   V.    Randolph,    24    Tex.   317.  —  Distin- 


^1, 


fi.j,  1 1 


•M-i 


MANDAMUS,  24,  Sa. 


•Iff -^  1 


(.1  isHED  IN  Houston  &  G.  N.  K.  C<j.  t. 
Kuccliler,  36  Tex.  3S3.  yL(JiKij  in  Hlodsoc 
V.  International  K.  Co.,  40  Tex.  537. 

Mandamus  will  not  lie  to  compel  defend- 
ant, as  county  treasurer,  to  pay  over  to 
|)laintill  company  certain  taxes  collected  for 
its  use  by  his  predecessor  in  ollice,  and  by 
such  predecessor  tiinsferred  to  the  county 
fund  by  order  of  liie  board  of  supervisors. 
Such  transfer  was  such  an  appropriation  of 
the  money  as  to  release  defendant  from  all 
liability  to  plaintifl  on  account  of  it.  A/t'n- 
nt'iXpoUs  &*  S/.  L.  R.  Co.  v.  Hecket,  75  Iowa 
'«3.  39 -'V.   W.  Rt'p.  260. 

Mandamus  lies  against  the  commissioner 
of  tiie  jjeneral  land  otfice,  at  the  suit  of  a 
railroad  company,  to  enforce  the  issuance  of 
land  certificates  to  which  the  company  had 
acciuiied  a  rij^ht  under  its  charter  and  the 
general  laws  of  the  state.  Under  such  cir- 
cumstances the  commissioner  had  no  dis- 
cretion to  withhold  or  to  refuse  to  issue  the 
certificates.  Houston  &^  G.  yV.  R.  Co.  v. 
Kiit'o/tiir,  36  Tex.  382.— Disti.vguishing 
Houston  Tap  &  IJ.  K.  Co  v.  Randolph,  24 
Tex.  317.  yuoTiNCj  Marbury  v.  Madison, 
I  Cranch  (U.  S.)  137. 

24.  3IiUiclaiiiiiK  to  iiiuiiiciim]  offi- 
cers. —  Where  a  statute  directs  certain 
work  on  city  streets  and  the  laying  of  tracks 
thereon,  one  half  to  be  paid  by  the  company 
and  the  other  half  by  the  city,  to  be  raised 
by  taxation,  after  the  work  has  been  done 
and  the  taxes  collected  a  mandamus  will 
issue  to  compel  the  mayor  to  countersign 
warrants  issued  by  the  comptroller  in  favor 
of  the  company  for  the  portion  to  be  paid 
by  the  city.  People  ex  rel.  v.  Havcmeyer,  3 
Hun  (N.  Y.)  97,  16  Abb.  Pr.  A^.  5.  219,  4  T. 
<S^  C.  365,  47  How.  Pr.  494. 

Conceding  tliat  an  action  might  be 
brought  to  enforce  the  payment  of  the  cor- 
poration, that  does  not  preclude  the  party 
from  proceeding  by  mandamus.  People  ex 
rel.  V.  Havemeyer,  3  Hun  {N.  F.)  97,  16  Abb. 
Pr.  \\  S.  219.  4  T.  &^C.  365,  47  Haw.  Pr. 

494- 

Where  the  common  council  of  a  city  con- 
sents to  the  construction  of  a  street  railway, 
and  the  franchise  is  sold,  under  the  statute, 
to  the  highest  bidder,  the  city  comptroller 
has  no  right  to  require  a  bond  with  condi- 
tions not  imposed  by  statute  or  the  common 
council ;  and  a  mandamus  will  issue  to  com- 
pel him  to  accept  and  approve  of  a  bond 
which  is  sufficient  in  form,  and  contains  the 
conditions  imposed  by  the  council.     People 


ex  rel.  \.  liarnard,  36  Am,  &*  Eng,  Ji.  Cas' 
70,  1 10  X.  )'.  54S.  IS  X.  E.  Rep.  354,  18  N. 
y.  S.  R.  542  ;  reversing  48  Hun  57,  15  N.  V. 
S.  R.  6S9. 

A  mandamus  will  not  lie  to  compel  the 
county  commissKiiiers  or  the  mayor  and 
aldermen  of  tiie  city  of  Boston  to  revise 
their  decision  upon  the  merits  of  the  claim 
of  an  owner  of  land  for  damages  sustained 
by  the  construction  of  a  railroad.  Smith  v. 
Mayor,  etc.,  of  Boston,  I  Gray  (J/ass.)  72. 

When  the  county  court  has  refused  the 
application  of  a  creditor  of  the  cciunty, 
whose  claim  has  been  reduced  to  i  i(l;.,'inent, 
for  a  warrant  on  the  treasury  pa>uJie  out  of 
a  particular  fund,  it  will  not  be  compelled 
by  mandamus  to  change  its  decision  and 
grant  the  warrant :  (i)  because  its  action  on 
the  application  is  judicial ;  (2)  because  an 
appeal  lies  from  its  order  to  the  circuit 
court.  State  ex  rel.  v  Macon  County  Court, 
68  Mo.  29.— yuoiJNO  State  ex  rel.  v.  Lafay- 
ette County  Court,  41  Mo.  224. 

A  mandamus  will  not  issue  to  compel  the 
commissioner  of  public  works  to  remove 
obstructions  from  city  streets  which  have 
been  erected  by  a  railroad  company  under 
color  of  legislative  authority,  especially 
where  the  obstructions  are  in  the  suburbs  of 
the  city,  where  but  few  live,  and  are  not 
likely  to  do  much,  if  any,  immediate  dam- 
age. People  ex  rel.  v.  Manhattan  R.  C\,  20 
Abb.  N.  Cas.  {N.  Y.)  393. 

Mandamus  will  not  lie  upon  relation  of  a 
citizen  and  owner  of  land  abutting  upon  a 
street  through  which  a  line  of  railroad 
would  pass  if  constructed  to  compel  the 
city  clerk  to  make  the  advertisement  for 
offer  to  build  the  road  required  of  him  by 
an  ordinance  of  council,  when  he  wrong- 
fully refuses  or  neglects  so  to  do.  State  ex 
rel.  V.  Henderson,  38  Ohio  St.  644. 

II.  FBOCEDUBE. 

25.  Jurisdiction  to  grant  tlie  writ. 

— Where  a  U.  S.  circuit  court  has  jurisdic- 
tion of  a  writ  on  bonds  of  a  county  issued 
for  stock  in  a  railroad,  and  enters  judgment 
against  the  county,  it  also  has  jurisdiction 
to  compel  payment  of  the  judgment  by 
mandamus.  Knox  County  Com'rs  v.  Aspin- 
wall,  24  How.  (U.S.)  376. 

And  the  U.  S.  supreme  court  has  juris- 
diction to  review  such  mandamus  proceed- 
ing. Riggs  V.  Johnson  County,  6  Wall. 
(U.  S.)  166.— Followed  in  Leavenworth 
County  Com'rs  v.  Miller,  7  Kan.  479. 


MANDAMUS,  20. 


383 


Tlic  act  of  March  3.  1873  (17  U.  S.  9t.  at  L. 
509),  gives  totlie  proper  circuit  court  juris- 
(liciiun  in  mandamus  to  compel  the  Union 
I'iicilic  \i.  Co.  to  operate  its  road  as  required 
by  law.  There  must  be  jurisdiction  over 
the  company  by  a  service  upon  it  to  enable 
the  court  to  exercise  the  power  conferred  by 
the  act.  //(///  V.  Union  J'ac.  J\\  Co.,  3  J)ilL 
(U.S.)  515.  Unitiii  States  ix  rii.  \.  Union 
J'lic.  R.  Co.,  2  Dill.  {U.S.)  527.— Followed 
IN  People  ex  rel.  v.  Colorado  C.  R.  Co.,  45 
Am.   (i    Eng.   K.    Cas.    599,  42    Fed.    Hep. 

63«. 

And  under  the  act  of  June  20,  1874,  ser- 
vice of  process  may  be  made  upon  the  pres- 
ident or  general  superintendent  of  tlie 
coinuany,  found  in  the  dis*  ij'  United 
States  rr  rel.  v.  Union  Pac.  K.  Co.,  3  Dill. 
(U.S.)  524. 

The  Minnesota  Railroad  Commission  Act, 
§  8,  vests  the  supreme  court,  concurrently 
will)  a  district  court,  with  original  jurisdic- 
tion of  all  proceedings  by  mandamus  tliere- 
iii  provided  for  to  compel  compliance  with 
tin;  provisions  of  the  act.  State  ex  rel.  v. 
Chicago,  M.  &■-  St.  P.  R.  Co.,  38  Minn.  281. 
37  .V.  W.  Rep.  782. — Approved  in  Railway 
Transfer  Co.  %>.  Railroad  &  W.  Commission, 
39  Minn.  231,  39  N.  W.  Rep.  150. 

Under  the  Pa.  Act  of  June  14, 1836, giving 
tlie  courts  of  common  pleas,  within  their  re- 
spective counties,  power  to  issue  writs  of 
mandamus  "  to  all  corporations  being  or 
having  their  place  of  business  within  such 
county,"  a  court  of  common  pleas  cannot 
issue  a  mandamus  to  a  railroad  company 
wliose  office  and  chief  place  of  business  is 
not  in  such  county,  although  their  road 
may  pass  through  the  same.  Whitmarsh 
Tp.  V.  Philadelphia,  G.  &  N.  R.  Co.,  8  Watts 
&-  S.  [Pa.)  365. 

The  constitution  of  Texas  does  not  confer 
upon  the  supreme  court  original  jurisdic- 
tion in  cases  of  mandamus.  International 
R.  Co.  V.  Comptroller,  36  lex.  641. 

The  district  court  has  not  the  power  or 
authority  under  the  constitution  to  compel 
an  officer  of  the  executive  department  of 
the  government  to  perform  an  official  duty. 
Bledsoe  v.  International  R.  Co.,  40  Tex.  537. 
—Quoting  Houston  Tap  &  B.  R.  Co.  v. 
Randolph,  24  Tex.  335. 

The  district  court  has  no  jurisdiction,  by 
a  writ  of  ma!;damus  or  otherwise,  to  con- 
trol the  action  of  the  commissioner  of  the 
general  land  office  in  the  issuance  of  railroad 
certificates.    Galveston,  B.  &•  C.  N.  G.  R.  Co. 


V.  Gross,  47  Tex.  428.  — Following  Bledsoe 
V.  International  R.  Co.,  40  Tex,  537. 

A  rule  nisi  for  a  mandamus  cannot  be 
granted  by  the  practice  court.  /;/  re  Will- 
iams &^  G.  II'.  R.  Co.,  26  U.  C.  Q.  /)'.  340. 

UO.  Motion  K^'iierally— l*lt>a<liii{(— 
Petition.  — Wliere  a  private  person  peti- 
tions fur  a  mandamus  on  behalf  of  the 
people  of  the  state,  lie  must  show  in  his 
petition  and  in  the  alternative  writ  that  he 
is  a  citizen  of  such  state,  and  thai  liis  inter- 
ests as  such  arc  injuriously  affected,  /^eo- 
pic  ex  rel.  v.  Colorado  C.  R.  CV>..  45  .,-///,.  iS«» 
ling.  R.  Cas.  599,  42  fed.  Rep.  638. 

The  word  "unused  "  in  the  ^  .  J.  Act  of 
1880  signifies  abandonment  b)  the  public. 
Therefore,  in  a  proceeding  to  compel  1.  'il- 
road  to  replace  '  ertain  highway  bridge?,  an 
allegation  that  before  and  at  the  time  of  the 
passage  of  the  act  of  1880  legal  proceedings 
were  pending  in  the  supreme  court  by  the 
relators  to  compel  defendants  to  rebuild 
the  bridges  which  they  had  removed,  and 
that  by  the  wrongful  refusal  of  the  defend- 
ants to  do  so  the  road  could  not  be  used, 
sufficiently  negatives  the  averment  of  non- 
user.  It  shows  that  there  had  not  been 
an  abandonment  of  the  highway,  and  con- 
sequently not  such  non-user  as  the  statute 
contemplates.  State  ex  rel.  \.  Pennsylvania 
R.  Co.,  45  A'.  /.  L.  82. 

A  petition  by  a  railroad  company  for  a 
mandamus  against  the  state  treasurer  (if 
maintainable,  'o  compel  him  to  discharge 
warrants  issued  to  it  by  the  board  of  school 
commissioners  for  a  loan  out  of  the  school 
fund  should  show  that  the  company  was 
one  of  those  entitled  by  law  to  apply  for 
the  loan.  Houston  Tap  <S^  B.  R.  Co.  v. 
Randolph,  24  Tex.  317. 

Where  a  motion  for  a  peremptory  man- 
damus, filed  in  October,  1891,  asks  that 
respondent  railway  company  be  compelled  to 
restore  certain  trains,  charged  to  have  been 
wrongfully  abandoned  and  discontinued 
by  it  in  violation  of  a  final  judgment  ren- 
dered in  October,  1883,  awarding  a  peremp- 
tory writ  of  mandamus  commanding  said 
respondent  to  run  such  trains,  alleges  that 
respondent,  prior  to  June,  1890,  had  fully 
executed  all  of  the  specific  requirements  of 
that  judgment,  and  seeks  relief  for  alleged 
failure  of  respondent  sirfce  the  last-named 
date  to  discharge  its  duties  as  ascertained 
and  fixed  by  such  judgment,  it  will  be  re- 
garded as  an  original  application  for  a  writ 
of  mandamus,  and  not  an  adjunct  to  the 


I 


384 


MANDAMUS,  27-20. 


original  one.    Sfa/e  ex  rel  v.  Missouri  Pac. 
R.  Co.,  114  Mo.  283.  21  S.  W.  Rep.  813. 

27.  Demand. —  In  a  proceeding  of 
mandamus  to  compel  the  performance  of  a 
public  duty  no  formal  demand  upon  the 
defendants  is  necessary  where  their  course 
and  conduct  manifest  a  settled  purpose  not 
to  perform  the  duty,  and  where  it  clearly 
appears  that  a  formal  demand  would  be 
useless  and  unavailing  Chicago.  K.  &*  W. 
R.  Co.  V.  C/iase  County  Coin'rs,  49  Kan.  399, 
30  Pac.  Rep.  J  56. 

An  averment  that  the  defendants  have 
refused  to  make  any  provision  for  the  pay- 
ment of  the  interest  claimed  is  sufficient, 
without  showing  that  a  demand  was  made 
upon  them  to  do  so.  Com.  e.v  rel.  v.  Select 
&•  C.  Councils  of  Pittsburgh,  34  Pa.  St.  496. 

28.  Who  may  be  relator.— A  peti- 
tion for  mandamus  to  compel  a  railroad 
company  to  perform  a  definite  duty  to  the 
public  which  it  has  distinctly  manifested  an 
intention  not  to  perform  is  rightly  pre- 
sented in  the  name  of  the  state  at  the  rela- 
tion of  its  prosecuting  attorney  and  with- 
out previous  demand.  Northern  Pac.  R. 
Co.  V.  Washington  Ter.  ex  rel.,  48  Am.  &* 
Eng.  R.  Cas.  475,  142  U.  S.  492,  12  Sup.  Ct. 
Rep.  283,  State  v.  Hartford  <&*  N.  H.  R. 
Co.,  29  Conn.  538. — Approved  in  Illinois 
C.  R.  Co.  V.  People,  143  111.  434.  Quoted 
IN  Railroad  Com'rs  v.  Portland  &  O.  C.  R. 
Co.,  63  Me.  269.  Reviewed  in  People  v. 
New  York  C.  &  H.  R.  R.  Co.,  9  Am.  &  Eng. 
K.  Cas.  I,  28  Hun  (N.  Y.)  543.  3  Civ.  Pro.  11, 
2  McCar.  345. 

Where  an  action  of  mandamus  was 
brought  in  the  name  of  the  state  of  Kan- 
sas on  the  relation  of  the  railroad  com- 
pany, and  the  state  had  no  interest  in  tiie 
result  of  the  action,  and  the  railroad  com- 
pany was  the  real  party  in  interest,  and  the 
defendants  moved  that  the  action  should 
be  dismissed  because  it  was  not  brought  in 
the  name  of  the  real  party  in  interest— 
held,  that  the  motion  should  be  sustained. 
State  ex  rel.  v.  Jefferson  County  Com'rs,  11 
Kan.  66. 

Private  persons  who  suflfer  damage  and 
inconvenience  from  the  failure  of  the  com- 
pany to  operate  its  road  as  required  by  law 
may  institute  proceedings  under  the  act  of 
March  3,  1873  (i/U.  S.  St.  at  L.  509).  with- 
out the  sanction  of  the  attorney-general. 
Hall  v.  Union  Pac.  R.  Co..  3  Dill.  {U.  S.) 
515;  affirmed  in  91  C/.  5.  343.— Reviewing 
Rex  v.  Severn  &  W.  R.  Co.,  2  B.  &  Aid  646. 


—  Union  Pac,  R.  Co.  v.  Hall,  gi  U.  S.  343.— 
Following  People  v.  Collins,  19  Wend. 
(N.  Y.)  56;  Pike  County  Com'rs  v.  State, 
II  111.  202;  Ottawa  V.  People,  48  111.  233; 
Hamilton  7/.  State,  3  Ind.  452;  People  zk 
Halsey,  37  N.  Y.  344;  State  7/.  Marshall 
County  Judge,  7  Iowa  186;  State  ta  Rahway, 
33  N.  J.  L.  no;  Watts  v.  Carroll  I'olice 
Jury,  II  La.  Ann.  141. 

When  mandamus  is  resorted  to  for  the 
purpose  of  enforcing  a  private  rigiit,  tl:e 
person  interested  in  having  the  right  'en- 
forced must  be  the  relat(jr.  In  such  case 
the  relator  is  considered  the  real  party,  anfl 
his  right  to  the  relief  must  clearly  appear. 
But  wliere  the  object  is  the  enforcement  of 
a  public  right,  the  people  are  regarded  as 
the  real  party,  and  the  relator  need  not 
show  tliat  he  has  any  legal  interest  in  the 
rosi'lt  It  is  enough  that  he  is  interested  as 
a  citizen  in  having  the  laws  executed  and 
the  duty  in  question  enforced.  Florida  C. 
6^  /'.  A'.  Co.  v.  State  ex  rel. ,  56  Am.  &»  Eng. 
R.  Cas.  306,  31  Ela.  482,  13  So.  Rep.  103. 
State  ex  rel.  v.  Fremont,  E.  Sf  M.  V.  R.  Co., 
32  Am.  &^  Eng.  R.  Cas.  426,  22  Neb.  313, 
35  A^  IV.  Rep.  118. 

It  is  sufficient  for  the  relators  in  such 
proceeding  to  show  that  they  are  citizens, 
and  thus  interested  in  the  performance  of  a 
public  duty.  State  ex  rel.  v.  Hannibal  &> 
St.  J.  R.  Co.,  29  Am.  &«•  Eng.  R.  Cas.  604, 
%6  Mo.  13. 

An  allegation  that  plaintiffs  are  qualified 
voters  and  freeholders  of  a  township  dis- 
closes no  such  peculiar  and  specific  interest 
as  will  sustain  a  mandamus  to  compel  the 
county  board  to  order  in  such  township  an 
election  on  the  question  of  issuing  bonds. 
Turner  w.  Jefferson  County  Com'rs,  10  Kan. 
16. 

Under  the  New  Hampshire  statute  (Gen. 
Laws,  ch.  158,  §§  II,  12)  which  prohibits 
the  operation  of  a  railroad  by  a  rival  and 
competing  road,  and  provides  that  any  citi- 
zen may  apply  for  an  injunction  to  prevent 
it,  a  citizen,  as  siich,  cannot  maintain  a  pe- 
tition for  a  writ  of  mandamus  to  compel  a 
railroad  corporation,  one  of  two  rival  and 
competing  roads,  to  operate  its  own  road. 
State  ex  rel.  v.  Manchester  &*  L.  R,  Co.,  62 
N.  H.  29 

29.  Parties  defendant.  —  When  on 
application  for  writ  of  mandamus  to  com- 
pel a  corporation  to  place  a  public  road 
crossed  by  its  railway  in  a  satisfactory  con- 
dition the  rule  nisi  is  served  on  persons 


MANDAMUS,  »0. 


C85 


who  deny  that  they  are  the  agents  of  the 
corporation,  but  are  in  the  employ  of  an- 
other corporation  having  control  of  its 
railroad,  and  there  is  no  evidence  to  show 
that  the  persons  served  are  the  agents  of 
ti;e  corporation  proceeded  ayainst,  the  ap- 
plication should  be  denied.  Mobile  &^  G. 
R.  Co.  V.  Pike  County  Com'rs  Court,  97  Ala. 
105,  1 1  So.  Rep.  72,2. 

When  it  appears  that  the  railway  neg- 
lecting the  duty  imposed  by  statute  has 
been  leased  for  a  long  term  of  years  to  an- 
other corporation,  which  in  turn  had  leased 
all  its  lines  of  railway  to  another  corpora- 
lion,  the  owner  of  the  road  as  well  as  the 
corporation  in  possession  of  the  road 
should  be  made  parties  to  the  proceeding. 
Mobile  &•  G.  R.  Co.  v.  Pike  County  Com'rs 
Court,  97  Ala.  105,  1 1  So.  Rep.  732. 

A  decree  comm;niding  a  railway  com- 
pany named,  and  its  successors,  assigns, 
grantees,  and  lessees,  to  maintain  and  oper- 
ate a  specific  portion  of  its  line  of  road  is 
binding  upon,  and  is  enforceable  by  man- 
damus against,  a  railway  company  which 
was  not  a  party  to  the  action  in  which  said 
decree  was  rendered,  but  was  organized 
subsequent  thereto,  and  acquired  its  inter- 
est in  said  railway  property  from  a  pur- 
chaser thereof  at  a  receiver's  sale  upon  ihe 
foreclosure  of  a  mortgage.  State  v.  Iowa 
C.  R.  Co.,  83  Iowa  720,  50  A'.   14^.  Rep.  280. 

The  directors  of  a  railroad  corporation 
created  by  the  laws  of  New  York  are  not 
public  officers,  or  a  public  body  or  board, 
within  the  meaning  of  N.  Y.  Rev.  St.  587, 
«:  60,  but  they  are  officers  of  a  corpora- 
tion, which  may  be  compelled  by  man- 
damus to  perform  specific  acts  enjoined  by 
law  for  the  benefit  of  the  public.  People  ex 
ret.  v.  Rochester  &>  S.  L.  R.  Co.,  76  N.  Y. 
294;  modify int;  14  Hun  371. 

A  petition  for  a  mandamus  to  compel  a 
railroad  company  to  operate  its  r^ad  made 
the  lessee  of  such  road  a  party  defendant. 
Both  the  petitioner  and  the  defendant  ad- 
mitted that  the  lease  was  illegal,  and  of  no 
force  and  effect.  Held,  that  the  lease  im- 
posed no  obligation  on  the  lessee  to  operate 
the  road.  People  ex  rel.  v.  Colorado  C.  R.  Co. , 
45  Ami.  &-  Eng.  R.  Cas.  599,  42  Fed.  Rep.  638. 

30.  Form  and  contents  of  the  writ. 
—The  granting  of  a  writ  of  mandamus  rests 
largely  in  the  sound  discretion  of  the  court, 
and  where  it  is  asked  to  enforce  the  per- 
formance of  a  duty  to  the  public  the  interest 
of  all  the  people  concerned  will  be  regarded, 
6  D.  R.  D— 25 


and  the  writ  will  be  so  framed  as  will  best 
preserve  and  enforce  the  rights  of  all  parties. 
Potwin  Place  v.  Topeka  R.  Co.,  56  Am.  &= 
Eng.  R.  Cas.  549,  51  Kan.  609,  33  Pac.  Rep. 

309- 

The  mandatory  part  of  an  alternative 
writ  of  mandamus  must  conform  to  the  case 
made  by  the  recitals  in  such  writ,  and  must 
not  require  more  to  be  done  than  is  justified 
by  such  recitals.  Florida  C.  &^  P.  R.  Co.  v. 
State  ex  rel.,  56  Am.  &^  Eng.  R.  Cas.  306, 
31  Fla.  482,  13  So.  Rep.  103. 

The  range  of  action  required  of  the  re- 
spondent by  an  alternative  writ  of  manda- 
mus should  be  clearly,  particularly,  and  ex- 
plicitly set  forth  in  the  mandatory  part  of 
such  writ.  The  duty  commanded  should 
not  be  left  to  indiscriminate  outside  ascer- 
tainment dehors  the  writ.  Florida  C.  &*  P. 
R.  Co.  V.  State  ex  rel,  56  Am.  &^  Eng.  R. 
Cas.  306,  31  P'la.  482,  13  So.  Rep.  103. 

A  peremptory  writ  of  mandamus  must 
conform  strictly  to  the  alternative  writ,  be- 
ing necessarily  limited  to  its  terms.  So  a 
company  cannot  be  compelled  to  run  all  of 
its  trains  to  a  certain  station,  which  is  not 
on  the  main  line,  when  it  is  not  demanded  in 
the  alternative  writ.  State  ex  rel.  v.  Kansas 
City,  St.  J.  ^  C.  B.  R.  Co.,  16  Am.  <S-  Eng. 
R.  Cas.  297,  77  Afo.  143. — Overruling 
Osage  Valley  &  S.  K.  R.  Co.  v.  Morgan 
County  Court,  53  Mo.  157. 

A  provision  in  a  mandamus  requiring  a 
company  "  to  put  the  road  in  a  good,  safe, 
and  suitable  condition  "  is  so  general,  and 
involves  so  much  discretion  on  the  part  of 
the  company  in  respect  to  the  details  of  the 
work,  as  to  lead  to  difficulties  in  the  en- 
forcement of  the  order,  and  to  make  the 
remedy  at  least  of  doubtful  propriety. 
Ohio  (3^•  M.  R.  Co.  v.  People  ex  rel..  30  Am.  &^ 
Eng.  R.  Cas.  509,  1 20  ///.  200,  1 1  A'.  E,  Rep. 
347,  9  West.  Rep.  167.— Quoted  in  People 
ex  rel.  v.  Chicago  &  A.  R.  Co.,  40  .Am.  & 
Eng.  R.  Cas.  352,  130  111.  175,  22  N.  E.  Rep. 

857. 

The  writ  should  simply  require  the  cor- 
poration to  resume  the  duties  of  carrier  of 
the  goods  and  property  offered  for  trans- 
portation, ind  upon  its  return  all  questions, 
whether  what  had  been  done  was  a  sufl[icient 
compliance  with  its  command  would  be- 
come a  subject  of  further  consideration. 
People  V.  New  York  C.  &•  H.  R.  R.  Co.,  9 
Am.  (S-  &V •  A'.  Cas.  i.  28  Hun  (A.  Y.)  543, 
3  Civ.  Pro.  II,  2  McCar.  345  ;  reversing  2. 
Civ.  Pro.  82. 


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380 


MANDAMUS,  31,  32. 


M     I 


11  m  I 


!,,    ' 


A  mandamus  requiring  a  municipal  cor- 
poration to  provide  for  the  payment  of  the 
interest  on  its  bonds  need  not  set  forth 
wiien  the  principal  will  become  due,  nor 
when  nor  where  tlie  interest  is  to  be  paid. 
Nor  is  it  necessary  that  the  relator's  title  to 
the  bonds  should  be  set  forth;  the  averment 
of  his  ownership  is  sufficient  to  show  his 
rigiit  to  ask  the  interference  of  the  cou'rt  by 
mandamus.  Com.  ex  rel.  v.  Select  &^  C. 
CoHHcih  of  Pittsburgh,  34  Pa.  St.  496. 

An  alternative  writ  of  mandamus  to  com- 
pel the  operation  of  a  railroad  alleged  that 
the  defendant,  being  a  corporation  of  the 
state  in  which  the  suit  was  brought,  on  a 
certain  date  ran  and  operated  a  certain  line 
of  road.  The  writ  did  not  show  when  or 
for  what  purposes  the  company  was  char- 
tered, or  what  railroad,  if  any,  it  built,  or 
was  authorized  to  build.  Held,  that  the 
iilternative  writ  was  not  sufficient  to  show 
that  tlie  defendant  was  under  any  legal  ob- 
ligation to  operate  said  railroad,  and  that  a 
peremptory  writ  could  not  be  awarded  upon 
it.  People  ex  rel.  v.  Colorado  C.  P.  Co. ,  45 
Atn.  &>  Ettg.  R.  Cas.  599,  42  Fed.  Pep.  638. 

31.  Directionoftlie  writ.— In  a  pro- 
ceeding by  mandamus  against  a  railroad 
company,  it  is  proper  to  direct  the  writ  to 
the  company  in  its  corporate  name.  Ste.te 
ex  rel.  v.  Chicago,  M.  &•  iV.  P.  Co.,  49  Am. 
<S^»  Ptig.  P.  Cas.  304,  79  H^is.  259,  48  A'.  PF. 
Pep.  243. 

Without  naming  the  officers.  In  re  Good- 
win, 13  U.C.  C.  P.  254. 

Where  a  company  has  been  incorporated 
as  a  "  railway,"  and  a  mandamus  is  directed 
to  it  as  a  "  railway  company,"  upon  the  return 
the  court  will  amend  the  writ  by  striking 
out  the  superfluous  word.  Peg,  v.  Derby- 
shire. S.  iS«  W.  /.  p.  Co.,  2  C.  L.  P.  1653,  18 
/ur.  1054.  23  L./.  Q.  n.  333. 

A  mandamus  to  compel  the  assessment 
and  collection  of  a  tax  for  the  payment  of 
the  interest  on  bonds  issued  by  the  city  of 
Pittsburgh,  is  properly  directed  to  the  in- 
dividuals composing  the  select  and  common 
cou ncils  of  the  city.  Com .  ex  rel.  v.  Select  6- 
C.  Councils  of  Pittsburgh,  34  Pa.  St.  496. 

A  peremptory  mandamus,  in  substance, 
required  the  R.  &  S.  L.  R.  Co.  to  build, on  or 
prior  to  Jimuary  i,  1877,  a  fence  on  each 
sside  of  its  road,  or  such  portions  thereof 
where  fences  were  not  already  built  "as 
may  then,  or  thereafter,  be  used  or  operated 
as  a  railroad."  Held,  that  the  direction,  so 
far  as  it  related  to  the  portion  of  the  line 


which  should  be  in  operation  January  i, 
1877,  was  sufficiently  definite  and  was  capa- 
ble of  being  obeyed;  and  that,  therefore,  the 
writ  could  not  be  held  nugatory.  People  ex 
rel.  v.  Pochester  &^  S.  L.  P.  Co.,  76  A'.  V, 
294;  modifying  14  Hun  371. 

32.  Service  of  the  writ.— In  Kansas 
a  mandamus  to  compel  a  county  to  levy  a 
tax  to  pay  a  judgment  against  it  on  bonds 
issued  for  railroad  stock  is  properly  directed 
to  the  board  of  county  commissioners  in  its 
corporate  capacity,  and  service  on  the  clerk 
of  the  board  is  service  on  the  board.  In 
such  case  change  in  the  membership  of 
the  board  is  immaterial.  Leavenworth 
County  Com'rs  v.  Sellew,  99  U.  S.  624. — 
Distinguishing  United  States  v.  Boutwell, 
17  Wall.  604. 

To  make  a  writ  efficacious  it  must  be 
served  on  the  officet^s  of  the  corporation 
who  have  the  power  and  whose  duty  it  is 
to  execute  it,  and  against  whom  an  attach- 
ment to  enforce  obedience  may  issue.  So 
where  an  alternative  writ  directs  a  company 
to  construct  certain  bridges  over  its  road, 
or  show  cause  why  it  has  not  done  so,  it  is 
not  sufficient  to  serve  the  writ  upon  the 
superintendent  of  a  division  of  the  road. 
State  ex  rel.  v.  Pennsylvania  P.  Co.,  41  N.J. 
L.  250. 

The  eighty-seventh  and  eighty-eighth 
sections  of  the  act  concerning  corporations 
(N.  J.  Rev.  p.  193),  which  provides  for  ser- 
vice of  process  on  corporations  by  serviae 
on  any  officer  or  agent,  etc.,  do  not  apply  to 
prerogative  writs,  which  are  enforceable 
only  by  attachments  for  contempt;  they 
relate  only  to  personal  actions,  where  the 
fruits  of  the  litigation  are  secured  by  a 
common  law  judgment.  State  ex  rel.  v. 
Pennsylvania  P.  Co.,  41  N.  /.  L.  250. 

The  court  will  not  set  aside  the  servlce-of 
a  writ  of  alternative  mandamus  because  of 
the  failure  to  leave  the  original  with  the 
person  to  whom  it  is  directed,  if  a  correct 
copy  is  delivered.  A  return  may  be  made 
to  a  copy  as  well  as  to  the  original,  and,  if 
necessary,  the  court  will  permit  the  original 
to  betaken  from  the  files  for  the  purpose  of 
a  return  to  it.  State  ex  rel.  v.  Pennsylvania 
R.  Co.,  41  A'.  /.  L.  250. 

Under  Pa.  Act  of  March  15,  1847  (P.  L. 
361,  §  2),  the  acts  of  May  25, 1881  (P.  L.  32), 
and  June  24,  1885  (P.  L.  150),  not  conflict- 
ing, where  the  principal  office  of  the  com- 
pany is  without  the  state,  the  writ  of  alter- 
native mandamus  may  issue  from  the  county 


MANDAMUS,  33. 


387 


where  its  works  are  situate,  and  be  served 
upon  a  director  residing  in  an  adjoining 
county.  Com.  ex  rel.  v.  New  York,  P.  &* 
0.  R.  Co.,  138  Pa.  Si.  58,  20  Ail.  Rep.  951. 

Mandamus  can  issue  in  the  case  of  a 
private  corporation,  and  the  writ  can  be 
directed  to  and  be  served  upon  the  officers 
individually.  Com.  ex  rel.  v.  Keim,  15  Phila. 
(Fa.)  I.— Distinguishing  Com.  v.  Coxe, 
I  Leg.  Chron.  89.  Following  Com.  ex  rel. 
V.  Baldwin,  14  Phila.  93. 

On  the  4th  of  September,  1890,  C.  ob- 
tained in  a  proceeding  by  mandamus  an 
order  for  a  peremptory  writ  commanding  a 
railway  company  forthwith  to  receive  and 
recognize  him  as  a  director  of  the  said  rail- 
way company  for  the  year  for  which  direc- 
tors were  elected  at  the  last  general  meeting 
of  stockholders  of  said  company,  held  to 
elect  directors  for  said  company  for  the  year 
1890,  in  the  place  of  T.,  who  was  an  acting 
director  for  that  year  under  a  claim  of  right, 
T.  being  named  as  a  party  in  the  alternative 
writ,  but  not  served  with  process  or  in  any 
way  brought  before  the  court.  Held:  (i) 
tlie  writ  of  mandamus  from  its  nature  and 
subject-matter  must  not  leave  its  range  of 
action  to  indeterminate  outside  ascertain- 
ment, but  must  indicate  with  reasonable 
certainty  the  precise  thing  to  be  done ;  (2) 
tlie  acting  director  must  have  an  opportu- 
nity to  be  heard  before  his  right  is  passed 
upon  and  determined.  Cross  v.  West  Vir- 
ginia C.  St*  P.  R.  Co.,  34  W.  Va.  742,  12  S. 
E.  Rep.  765. 

In  an  action  by  a  purchaser  of  stock  at 
sheriff's  sale  claiming  a  mandamus  to  the 
company  to  enter  the  plaintifl  in  their  reg- 
ister as  a  shareholder  in  respect  of  such 
stock — held,  that  the  provisions  of  Consol. 
St.  C.  c.  70.  as  well  as  the  C.  L.  P.  A.  §§ 
255,  256,  must  be  obeyed,  and  that  as  no 
copy  of  the  writ  had  been  served  on  defend- 
ants with  the  sheriff's  certificate,  the  plain- 
tiff must  fail.  Goodwin  v.  Ottawa  &*  P.  R. 
Co..  22  U.  C.  Q.  B.  1 86. 

33.  Ketiirii, — A  party  making  return 
to  an  alternative  mandamus  must  show  that 
he  lias  complied  with  the  order  of  the  writ 
to  the  extent  of  his  ability.  Silverthorne  v. 
Warren  R.  Co.,  33  N.J.  L.  173. 

Where  application  is  made  to  compel  a 
county  to  complete  subscriptions  to  the 
stock  of  a  railroad  company,  it  is  competent 
for  the  defendants  to  deny  the  incorpora- 
tion of  the  company,  or  that  it  has  com- 
plied with  the  requirements  of  the  law  re- 


garding its  organization,  or  that  it  is  doing 
business  as  a  railroad  corporation.  Oroville 
&•  V.  R.  Co.  V.  Plumas  County,  yj  Cal.  354. 

Where  an  alternative  writ  issues  to  com- 
pel a  company  to  relocate  a  portion  of  its 
track  which  it  has  torn  up,  a  return  that 
the  company  is  proceeding  as  rapidly  as  pos- 
sible to  change  its  worn-out  narrow  gauge 
to  a  broad  gauge  is  sufficient,  on  demurrer, 
to  prevent  a  peremptory  writ  to  compel  tlie 
restoration  of  the  narrow  gauge.  State  ex 
rel  V.  Missouri  Pac.  R.  Co.,  80  Jlfo.  117. 

Where  an  alternative  writ  issues  to  com- 
pel a  company  to  restore  a  highway  crossing 
to  its  former  condition,  as  required  by  stat- 
ute, a  return  thereto  is  sufficient  which 
traverses  the  allegations  of  the  writ  in  the 
same  form  of  words  in  which  they  are  made. 
Buffalo,  N.  Y.  6-  P.  R.  Co.  v.  Com.,  120 
Pa.  St.  537,  12  Cent.  Rep.  707,  14  Atl.  Rep. 
443.  21   IV.  N.  C.  513. 

Where  a  judgment  has  been  obtained 
against  a  municipal  corporation  on  coupons 
from  bonds  in  aid  of  a  railroad,  and  a  man- 
damus issues  commanding  it  to  levy  a  tax 
sufficient  to  pay  the  judgment,  and  to  col- 
lect the  tax  and  pay  the  judgment,  a  return 
that  it  did  levy  a  tax  to  pay  the  judgment 
and  other  claims  is  bad  on  demurrer.  Such 
return  should  show  the  amount  of  the  levy, 
and  all  the  facts  attending  it,  show  that  it 
was  a  specific  levy ;  and  if  not  collected  and 
paid  over,  some  excuse  should  be  shown  for 
not  doing  so.  Benbow  v.  Mayor,  etc.,  of 
Iowa  City,  7  Wall.  (U.  S.)  313. — Followed 
in  Leavenworth  County  Com'rs.  v.  Miller, 
7  Kan.  479, 

Ina  mandamus  proceedingtocompel  a  rail- 
way company  so  to  construct  its  roa*^  as  not 
to  prevent  the  public  from  using  a  specified 
part  of  a  highway,  it  is  no  defense  that  the 
track  had  formerly  been  placed  in  the  high- 
way by  another  railway  company.  Such 
fact  is  no  justification  of  the  continuance  of 
the  obstruction  of  the  highway  by  defend- 
ant, to  the  entire  exclusion  of  the  public. 
State  ex  rel.  v.  Hannibal  St*  St.  J.  R.  Co.,  29 
Am.  &»  Eng.  R.  Cas.  604,  86  Mo.  13. 

An  averment  in  the  return  that  the  liabil- 
ity of  the  city  upon  the  bonds  is  disputed 
is  not  sufficient  to  prevent  the  issuing  of  a 
peremptory  mandamus ;  the  defendants 
must  obey  the  writ,  or  show  facts  from 
which  the  court  may  determine  that  the 
debt  is  not  due ;  or,  at  least,  that  it  is  doubt- 
'•l  whether  it  be  due.  Com.  ex  rel.  v.  Select 
&*  C.  Councils  of  Pittsburgh,  l\  Pa.  St.  496. 


'i 


i-Si 


MANDAMUS,  34-37. 


W^i 


'J 
lis  ?.: 


;J4.  Trial— Traverse—  Demurrer.— 

Where  a  proceeding  is  instituted  against  a 
company  to  compel  it  to  bridge  its  tracks 
over  certain  city  streets  and  to  construct 
approaches  at  one  end,  and  the  tracks  of 
another  company  cross  the  same  street  so 
near  as  to  suggest  the  necessity,  if  either 
system  of  tracks  should  be  bridged,  that  the 
bridges  be  made  continuous  over  the  tracks 
of  both  companies,  and  a  like  proceeding  is 
pending  against  the  latter  company,  it  is 
proper  to  require  both  proceedings  to  be 
lieard  together.  S/a/e  ex  rel.  v.  Minneapolis 
&^  Si.  L.  R.  Co.,  35  Am.&'Eng.  R,  Cas.  250, 
39  Minn.  219,  39  A^.  W.  Rep.  153. 

To  an  allegation  by  the  defendants,  in  a 
proceeding  to  compel  a  railroad  to  replace 
certain  highway  bridges,  that  a  public  road 
had  been  unused  for  a  period  of  five  years, 
and  that  by  virtue  of  section  i  of  the  N.  J. 
Act  of  March  4,  1880,  it  had  been  vacated 
by  the  written  consent  of  the  landowners,  it 
is  not  a  sufficient  traverse  to  reply  that  the 
road  nad  always  been  open  to  travel,  and  is 
now  used,  as  far  as  it  can  be,  with  the 
bridges  removed.  This  allegation  does  not 
negative  the  defense  that  the  road  had  been 
unused  for  the  statutory  period.  State  ex 
rel.  V.  Pennsylvania  R.  Co.,  45  N.J.  L.  82. 

Where  a  proceeding  is  instituted  to  com- 
pel a  company  to  replace  certain  highway 
bridges,  and  the  company  alleges  that  it  is 
a  foreign  corporation,  and  owes  no  duty  to 
the  state  or  the  relators,  a  reply  thereto 
that  it  is  defendant's  duty  to  erect  the 
bridges  is  not  sufficient.  The  reply  should 
state  the  facts  out  of  which  the  alleged  duty 
arises.  State  ex  rel.  v.  Pennsylvania  R.  Co., 
45  N.  J.  L.  82. 

Where  a  company  has  the  right  to  use  a 
street  under  an  ordinance,  and  a  petition 
for  a  mandamus  to  compel  the  company  to 
build  a  sewer  as  required  by  ordinance  con- 
tains an  allegation  that  it  is  necessary,  a 
denial  of  this  allegation  by  the  answer 
raises  a  question  of  fact,  and  a  demurrer  to 
the  answer  should  be  overruled.  Ohio  &> 
M.  R.  Co.  V.  People  ex  rel.,  32  ///.  App.  69, 

To  an  application  for  a  mandamus  to 
compel  a  railway  company  to  register  bonds, 
it  was  objected  that  it  did  not  appear  that 
the  company  had  made  default  in  payment 
of  the  interest,  the  coupons  not  being  shown 
to  have  been  presented  at  the  place  named 
for  payment.  HeM,  that  the  fact  of  the 
company  never  having  been  ready  to  pay 


them  there  or  elsewhere  was  a  sufficient 
answer  to  their  objection.  /«  re  Thomson, 
9  Ont.  Pr.  119. 

35.  Dismissal.  —  In  a  proceeding  for 
mandamus  to  compel  the  defendant,  under 
Cal.  Act  of  April  3,  1876  (St.  1875-76,  p. 
783),  to  furnish  to  the  commissioners  of 
transportation  created  by  that  act  certain 
information,  the  default  of  the  defendant 
was  entered  and  a  peremptory  writ  issued. 
Held,  that  the  writ  of  mandamus  cannot  be 
granted  by  default,  and  that,  the  act  having 
been  repealed,  the  proceeding  should  be 
dismissed.  People  ex  rel.  v.  Central  Pac.  R. 
Co.,  62  Cal.  506.— Followed  in  People  ex 
rel.  V.  Central  Pac.  R.  Co.,  62  Cal.  507. 

This  was  an  application  for  a  mandamus 
to  require  the  respondent  to  join  its  track 
with  that  of  another  company,  as  required 
by  statute.  After  the  hearing  the  tracks 
were  connected.  Thereupon,  and  for  this 
reason,  the  proceedings  were  dismissed. 
State  ex  rel.  v.  Port  Royal  iS-  W.  C.  R.  Co., 
31  So.  Car.  609,  10  S.  E.  Rep.  1104. 

36.  Appeal. — Where  an  alternative  writ 
issues  directing  a  company  to  construct 
certain  fences  and  cattle-guards,  and  the 
company  appears  and  asks  for  an  extension 
of  the  time  in  which  to  comply  with  the 
writ,  which  is  granted.  It  will  be  inferred 
therefrom  that  the  only  opposition  made 
by  the  company  was  to  ask  for  further  time, 
and  it  cannot,  therefore,  appeal  from  an 
order  directing  a  peremptory  writ.  People 
v.  Rochester  6-  5.  Z.  R.  Co.,  1$  Hun  (A'.  F.) 
188;  see  14  Hun  371. 

Where  a  mandamus  had  been  erroneously 
issued  requiring  a  railway  company  to  make 
a  road,  and  the  return  merely  traversed  a 
part,  and  the  issue  then  raised  was  found 
against  ilie  company  and  a  peremptory  man- 
damus awarded,  the  court  on  a  writ  of  error 
reversed  the  whole  judgment.  Reg.  v. 
Southeastern  R.  Co.,  4  H.  L.  Cas,  471,  17 
Jur.  901. 

37.  Punishment  for  disobedience.* 
— Attachment  against  the  president  of  a 
company  for  disobedience  of  the  writ  was 
refused,  because  it  appeared  that  he  could 
not  by  himself,  and  without  a  majority  of 
the  board  of  directors,  perform  the  act  re- 
quired by  the  writ,  and  the  other  directors 
had  not  been  served.  Demorest  v.  Midland 
R.  Co.,  10  Ont.  Pr.  82. 

*  See  also  Contempt. 


MANITOBA-MASSACHUSETTS. 


389 


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MANITOBA. 

Liability  of  company  to  laborers  employed 
by  contractors  in,  see  Construction  of 
Railways,  98. 


MANSLAUGHTER. 
Prosecutions  for,  see  Criminal  Law,  29. 


MANUFACTURING   COMPANY. 

Power  of,  to  condemn   lands,  see   Eminent 
Domain,  8t2. 


MAPS. 

Admissibility  and  effect  of,  as  evidence,  see 
Evidence,  49,  231. 

Filing  of,  see  Location  of  Route,  16 ;  Land 
Gkants,  «7,  78,  87,  94;  Public 
Lands,  42. 

Of  proposed  crossing  of  railways,  see  Cross- 
ing OF  Railroads,  32. 

Proof  of  dedication  by,  see  Streets  and 
Highways,  7. 

References  to,  in  deeds,  see  Deeds,  20. 

petition,  see  Eminent  Domain,  31 7> 

Use  of,  in  condemnation  proceedings,  .see 
Eminent  Domain,  332-340. 


MARKET   VALUE. 

Ascertaining  damages  where  there  is  no, 

see  Eminent  Domain.  054. 
Assessed  value  as  evidence  of,  see  Evidence, 

5. 
As  the  measure  of  damages  for  land  taken, 

see  Eminent  Domain,  048-051. 
Evidence  of,  on  question  of  damages,   see 

FiKEs,  353,  354. 
Instructions  confining  jury  to,  see  Eminent 

Domain,  581. 
Liability  of  carrier  for  fall  in,  see  Carriage 

ok  Live  Stock,  37,  38. 
Limiting  damages  to,  see  Carkiage  of  Mer- 
chandise, 402. 
Measure  of  damages  where  goods  have  no, 

see  Carriage   of    Merchandise,    794- 

798. 
Of  animal  killed,  as  the  measure  of  damages, 

see  Animals.  Injuries  to,  587. 
proof  of,  see  Animals,  Injuries  to, 

424,  425. 
—  goods  lost,  when  measure  of  damages,  see 

Carriage  of  Merchandise,  701. 
Opinion  of  witness  as  to.   see  Witnesses, 

115-117,  124. 


MARRIED  WOMEN. 

Right  of,  to  appeal  in   condemnation  pro- 
ceedings, see  Eminent  Domain,  870. 


Validity  of  releases  by,  see  Release,  7. 
When  entitled  to  land  damages,  see  Eminent 
Domain,  440. 

See  Husband  and  Wife. 


MARYLAND. 

Aid  to  railways  by  the  state,  see  State  Aid, 
23. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 204. 

Constitutionality  of  statutes  of,  as  to  mu- 
nicipal aid  for  railways,  see  Municipal 
AND  Local  Aid,  30. 

relative  to  condemnation  of  land, 

see  Eminent  Domain,  32. 

tax  laws  of,  see  Taxation,  31. 

Construction  of  stock  laws  of,  see  Animals, 
Injuries  to,  23. 

Deductions  for  benefits  under  condemnation 
laws  of,  see  Eminent  Domain.  738. 

Duty  of  traveler  at  crossing  to  stop,  look, 
and  listen  in,  see  Crossings,  Injuries, 
etc.  ,  AT,  236. 

Injuries  to  animals  running  at  large  in,  see 
Animals,  Injuries  to,  209. 

Occupation  of  streets  by  steam  roads  under 
legislative  grants  of,  see  Streets  and 
Highways,  47. 

Operation  of  statute  of,  giving  right  of  ac- 
tion for  causing  death,  see  Death  by 
Wrongful  Act,  22. 

Right  to  sue  in,  for  causing  death  in  foreign 
state,  see  Death  by  Wrongful  Act 
118. 

Rule  as  to  imputed  negligence  in,  see  Im- 
puted Negligence,  11. 

Statute  of,  regulating  liability  for  injuries 
caused  by  fire,  see  Fires,  8. 


MASSACHUSETTS. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 205. 

Conditions  exempting  carrier  from  liability 
to  pitrson  riding  on  free  pass  in,  see 
Passes,  24. 

Constitutionality  of  statutes  of,  relative  to 
condemnation  of  land,  see  Eminent  Do- 
main, 33. 

tax  laws  of.  see  Taxation.  32. 

Deductions  for  benefits  under  condemnation 
laws  of,  see  Eminent  Domain,  739. 

Duty  to  give  signals  near  crossing  under 
statute  of.  see  Crossings,  Injuries,  etc., 
at,  128. 

Employers'  Liability  Act  not  a  bar  to  common 
law  action,  see  Employes,  Lnjuries  to. 
551. 


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Grade  crossingfs  under  statutes  of,  see  Cross- 
i.\(;    OF     Railroads,  07  ;   Crossing    of 

SlRKKTS  AND  HiC.HWAYS.  J)7-l  Hi, 

Joint  use  of  station  under  statutes  of,  see 

Stations  and  Dki'ots,  147. 
Jurisdiction  of  supreme  court  of,  see  Juris- 

DicnoN,  20. 
Laying  out   streets  across  railways  under 

statutes  of,  see  Crossing  of  Stkkets  and 

Highways,  45. 
Local  assessment  upon  steam  railways  in, 

for  repairs,  paving,  etc.,  see  Sikeets  and 

Highways,  348. 
Mechanics'  Lien  Law  of,  see  Liens,  9. 
Occupation  of  streets  by  steam  roads  under 

legislative  grants  of,   see  Stkeets  and 

Highways,  48. 
Operation  of  statute  of,  giving  right  of  ac- 
tion for  causing  death,    see  Death  by 

Wrongful  Act,  33. 
Plaintiff's  pleadings  must  negative  contribu- 
tory   negligence    in,   see  Contributory 

Negligence,  54. 
Right  to  sue  in,  for  causing  death  in  foreign 

state,  see    Death     by  Wrongful   Act, 

119. 
Rule  as  to   imputed  negligence  in,  see  Im- 

ruTED  Negligence,  lt2. 

—  under    Employers'    Liability   Act   where 

death  is  instantaneous,   see    Death   by 

Wrongful  Act,  83. 
Statute  of.   as  to  defective    crossings,  see 

Crossings,  Injuries,  etc.,  at,  31. 
regulating  liability  for  injuries  caused 

by  fire,  see  Fires,  9. 
to  servant  for  injuries  caused  by 

negligence  of  fellow-servants,  see  Fkl- 

LOW-SKRVANTS,    185. 

—  —  requiring  notice  of  time,  place,  and 

cause  of  injury,  see  Employes,  Ljjuries 
TO,  501. 
Statutory  duty  to  fence  in,  see  Fences,  26. 

—  provisions  in,  relative  to  abandonment  of 

station,  see  Stations  and  Depots,  52. 
Taking  land  for  streets  and  laying  out  roads 

in,  see  Streets  and  Highways,  21. 
When  negligence  of  parent  is  imputable  to 

child    in,    see    Children,    Injuries    to, 

122. 


MASTER  AND  SERVANT. 

See  Employes  ;  Employes,  Injuries  to  ; 
Fellow-servants. 


HATERIALITT. 

Of  evidence,  see  Children,  Injuries  to, 
1«3;  Death  by  Wrongful  Act,  224- 
S30;  Elevated  Raii.wavs.  101;  Evi- 


dence, I.,  II.;  Trespassers,  Injuries  to, 

118. 
Of    newly    discovered    evidence,   see    New 

Trial,  93. 
—  witnesses'  answer,  see  Witnesses,  44. 


MATERIAL-MEN. 

Notice  by,  of  claim  for  lien,  see  Liens,  35. 
Right  of,  to  claim  lien,  see  Liens,  19. 


MATERIALS. 

Claims  for,  when  prior  to  mortgage,  see 
Mortgages,  91,  92,  1 12,  281. 

Issuing  receivers'  certificates  in  payment  for, 
see  Receivers,  97. 

Payment  by  receiver  of  claims  for,  see  Re- 
ceivers, 80. 

Prepared,  but  not  used,  right  of  subcon- 
tractor to  recover  for,  see  Construction 
OF  Railways,  78. 


MEASURE  OF  DAMAGES. 

Generally,  see  Damages,  50-74. 
Erroneous  instructions  as  to,  see  Appeal  and 

Error,  48. 
For  causing  death,  see  Death  by  Wrongful 

Act,  373-440. 

—  conversion  of  goods  by  carrier,  see  Car- 

riage of  Merchandise,  164,  315. 

—  delay,  see  Carriage  ok  Merchandise, 
140-148,  500. 

—  ejection  of  passengers,  see  Ejection  of 

Passengers,  100-130. 

—  failure  to  build  and  maintain  fences,  see 

Fences,  99. 

deliver  grain  on  elevator,  see  Car- 
riage OF  Merchandise,  294. 

give  notice  of  arrival  of  goods,  see 

Carriage  ok  Merchandise,  235. 

—  flooding  lands,  see  Culverts,  25 ;  Flood- 

ing Lands,  93-1  Ol. 

—  infringement  of  patents,  see  Patents  fih; 

Inventions,  23. 

—  injuries  caused  by  fire,  see  Fires,  339- 

347. 
obstructions  or  encroachments  in 

highways,   see  Streets  and  Highways, 

419. 
to  children,  see  Children,  Injuries  lo, 

190. 
— crops  and  pasturage,    see  Fences, 

109,  llO. 
— employes,   see    Employes,   Injuries 

to,  750-701. 
— goods  carried,  see  Carriage  of  Mer- 
chandise, 123,  705,  700. 
— passengers,   see  Street  Railways, 

444-447. 


For 

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—  1 

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MECHANICS— MEDICAL   SERVICES,  1,2. 


391 


For  injuries  to  persons  or  property  in  street, 
SI.C  Street  Railways,  403,  404. 

—  land   condemned,  see    Eminent    Domain, 

«4;J-073. 

—  loss  of  money,  property,  etc.,  see  Sleep- 

INlJ,  ETC.,  CoMI'AMKS,  3J5. 

—  misdelivery  of   goods,  see  Carriage   of 

Merchandise,  1288. 

—  overcharges,  see  Charges,  47. 

—  refusal  to  transfer  stock,  see  Stock,  70. 

—  wrongful  interference  with  property,  see 

Kminent  Domain,  1081-1084. 

Harmless  instructions  as  to,  see  Appeal  and 
Error,  81. 

In  actions  against  carriers  of  cattle,  see 
Carriaoe  ok  Live  Stock.  lAG. 

goods,  see  Carriage  of  Mer- 
chandise, 757-800. 

passengers,  see  Carriage  of 

Passengers,  «10-G»». 

of  trespass,  see  Streets  and  High- 
ways, 281. 

on  construction  contracts,  see  Con- 
struction OF  Railways,  120. 

—  condemnation  of  abutting  easements,  see 

Ei.kvaied  Railways,  41. 

—  elevated    railway     cases,    see    Elevated 

Railways,  127-107. 

—  railway  intersection  cases,  see  Crossing 

OK  Railroads,  41-4({. 

—  stock-killing  cases,  see  Animals,  Injuries 

Tu,  580-58U. 
Instructions  with  regard  to,  see  Trial,  131, 

1.".7. 
Opinion  of  witness  as    to,   see  Witnesses, 

1  ar*. 

Tt>  ibutting  owners  for  constructing  railway 
in  street,  see  Street  Railways,  225- 
228;  Streets  and  Highways,  272- 
295. 

—  the  fee,  see  Elevated  Railways,  145. 
Under  Canadian  expropriation  acts,  see  Emi- 
nent Domain,  1235. 

—  English  compulsory  purchase   laws,  see 

Eminent  Domain,  11O1-120O. 
When  a  question  of  law,  see  Trial,  91). 
Where  goods  are  lost  by  fire,  see  Carriage 

ok  .Merchandise,  158. 

—  road  is  built  without  consent  of  abutting 

owner,  see  Elevw;.d  Railways,  133. 


MECHANICS. 
As  experts,  see  Witnesses,  1 76. 
Tools  of,  when  may  be  carried  as  baggage, 
see  Baggage,  43. 


When  prior  to  mortgage,  see  Mortgages, 
lOU,  120. 

See  Liens,  8-42. 


MEDICAL. 

Attendance,  allowance  of  damages  for,  ree 
Children,  Injuries  ro,  183. 

—  proof  of  cost  of,  see  Damages,  90. 
Expenses,  evidence  of,  under  the  pleadings, 

see  Pleading,  1  13. 

—  when  recoverable   in  action  for  causing 

death,    see    Death   by   Wrongkul   Act, 
413,414. 
Services,  lien  for,  see  Liens,  5;  Medical  Ser- 

VICLS. 

Skill,  questions  requiring,  call  for  expert  tes- 
timony, see  Witnesses,  139. 


MECHANICS'  LIENS. 

Liability  of  purchaser  as  respects,  see  Mort- 
gages, 201. 


MEDICAL  SERVICES. 

1.  Coiii|>auy*N  duty  tu  employ  phy- 
stciuu.  —  Where  a  railroad  company  as- 
sumes to  furnish  a  physician  or  surgeon  for 
an  injured  passenger  it  must  furnish  a  com- 
petent one,  and  is  not  liable  beyond  that. 
The  physician  himself  is  liable  for  any 
damage  caused  by  his  negligence,  and  not 
the  company.  Secord  v.  St.  Paul,  AI.  &>  M. 
R.  Co.,  5  McCraty  {U.  S.)  515,  18  Fed.  Hep. 
221.  Laubheim  v.  Nether  land  Steamship 
Co.,  II  .V.    V.  S.  A'.  469. 

Whether  it  is  within  the  corporate  pow- 
ers of  a  railroad  company,  under  any  cir- 
cumstances, to  oblige  itself  to  the  rendition 
of  medical  or  surgical  aid  to  its  sici<  or  in- 
jured employes  by  assuming  it  as  a  duly  or 
otherwise,  or  to  become  liable  for  any  neg- 
ligence of  any  such  surgeon  acting  in  the 
line  of  his  profession:  quare?  If  it  can 
become  so  liable — held,  ttiat  its  whole 
duty  in  that  respect  will  have  been  per- 
formed when  it  employs  a  person  of  ordi- 
nary competence  and  skill  in  that  profes- 
sion; and  that,  having  done  so,  it  cannot 
be  held  liable  for  the  carelessness  or  negli- 
gence of  such  surgeon  in  the  performance 
of  his  duties  as  such.  South  Fla.  R.  Co. 
V.  Price,  32  Fla.  46,  13  So.  Rep.  638. 

2.  Contract  of  eiiiployniciit,  sen- 
erally. — When  an  employe  has  been  dis- 
abled while  in  the  employ  of  a  railroad 
company,  and  in  the  discharge  of  his  haz- 
ardous duties,  this  is  a  sufficient  considera- 
tion to  support  a  promise  to  pay  for  the 
nursing  and  medic;il  attendance  necessary 
to  his  cure.  •  Toledo,  IV.  &*  W.  R.  Co.  v. 
Rodr titles,  47  ///.  188. 

The  conductor  of  a  train  testified  that  he 


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MEDICAL   SERVICES,  3-5. 


employed  a  pliysician  to  dress  the  wounds 
of  an  injured  person.  The  physician  testi- 
fied that  the  coiiductf)r  informed  him  that 
he  would  leave  tiie  injured  man  in  his  care 
for  treatment,  and  he  was  corroborated  by 
two  other  witnesses.  HM,  that  the  evi- 
dence was  siiflicient  to  sustain  a  finding 
that  the  employment  of  the  physician,  which 
was  subsequently  ratified  by  the  company, 
covered  all  services  necessary  and  proper 
which  the  physician  rendered  until  the  pa- 
tient had  become  convalescent,  and  that 
the  physician  was  not  confined  to  a  claim 
for  dressing  the  injured  person's  wounds. 
7'irri'  Haute  <S-  /.  R.  Co.  v.  Stockwell,  yj 
Am.  &^  Eng.  R.  Cas.  278,  118  /ntf.  98,  20  N. 
E.  Rep.  650. 

A  physician  attended  for  several  days,  as 
his  patient,  a  man  who  had  been  injured  by 
a  railroad  accident,  and  while  this  attend- 
ance was  going  on,  the  company,  by  its 
agent,  requested  him  to  continue  his  at- 
tendance, and  promised  that  the  company 
would  pay  him  for  his  services.  Held,  that 
this  did  not  amount  to  an  original  under- 
taking or  promise  on  the  part  of  the  com- 
pany to  pay  for  future  services,  unless  the 
jury  should  believe  they  were  rendered 
upon  the  credit  of  the  company,  and  not 
tipon  that  of  the  patient.  Northern  C.  R. 
Co.  v.  Prentiss,  11  Md.  119. 

Plaintiff  was  employed  by  a  railroad  com- 
pany to  render  such  service  as  might  be  nec- 
essary as  consulting  oculist  and  aurist.  The 
contract  of  employment  was  partly  printed 
and  partly  written.  In  the  printed  portion 
plaintiff  agreed  "to  perform  all  necessary 
surgical  and  medical  services,  *  ♦  ♦  if  re- 
quired to  do  so,  and  to  furnish  the  neces- 
sary medicines  and  surgical  appliances." 
The  words  "and  to  furnish  the  necessary 
medicines  and  surgical  appliances "  were 
stricken  out.  Held,  that  the  employment 
was  only  as  consulting  oculist  and  aiirist, 
and  not  as  operating  physician  or  surgeon. 
Union  Pac.  R.  Co.  v.  Graddy,  25  Neb.  849, 
41  A'.  W.  Ref>.  S09. 

:S.  Who  lins  niitlioi'ity  to  eiiiploy, 
geiiorally.*  —  It  is  the  duty  of  railroad 
companies  to  have  some  officer  or  agent  at 
all  times  conipetent  to  exercise  a  discre- 
tionary authority  in  such  cases,  and  on 
grounds  of  public  policy  they  should  not 

*  Authority  of  railroad  officers  and  employes 
to  bind  company  by  contract  for  medical  ser- 
vices, see  notes,  44  Am.  &.  Eng,  R.  Cas.  461;  11 
Id.  30. 


be  suffered  to  do  otherwise.  But  it  is  a 
fact,  to  which  the  court  will  not  close  its 
eyes,  that  in  emergencies  every  person  con- 
nected with  the  road  can  open  communicn- 
tion  with  the  superintendent  and  officers  in 
less  lime  than  it  has  taken  us  to  write  this 
sentence.  Having  officers  charged  with  the 
duty  of  seeing  to  it  that  the  necessary  at- 
tention is  rendered  to  the  injured  in  case  of 
accident,  tiie  court  will  not  infer  that  any 
and  every  employe  has  authority  to  bind 
the  company  by  employing  physicians  and 
surgeons  whenever  they  please  or  think  it 
proper  to  do  so.  Houston  &•  T.  C.  R.  Co, 
v.  IVatAins,  1  Tex.  A  pp.  (Civ.  Cas.)  147. 

Evidence  that  an  agent  of  a  street  rail- 
way company  was  authorized  by  it  gener- 
ally to  see  that  injured  persons  were  taken 
where  medical  aid  could  be  given,  construed 
as  justifying  the  conclusion  that  the  agent 
was  authorized  to  employ  medical  aid  in 
such  cases.  Hansconi  v.  Minneapolis  St.  R, 
Co.,  54  Am.  ^  Eng.  R.  Cas.  226,  53  Minn. 
119,  54  A'.  IV.  Rep.  944. 

The  authority  of  railway  employes  to 
contract  on  behalf  of  the  company  for 
medical  attendance  to  injured  passengers 
may  be  inferred  from  the  conduct  of  direc- 
tors on  former  occasions  in  recognizing 
similar  contracts,  or  from  evidence  that 
such  powers  are  usually  exercised  by  sim- 
ilar agents.  Cox  v.  Midland  Counties  R. 
Co.,  3  Ex.  268,  13 /ur.  65.  18  Z.  /.  Ex.  65.— 
Considered  in  Walker  v.  Great  Western 
R.  Co.,  L.  R.  2  Ex.  228,  36  L.  J.  Ex.  123,  15 
W.  R.  769. 

Engine  drivers,  station  guards,  and  traffic 
superintendents  do  not  have  implied  au- 
thority to  make  contracts  on  behalf  of  the 
railway  company  for  medical  attendance  to 
injured  passengers.  Cox  v.  Midland  Coun- 
ties R.  Co.,  3  Ex.  268,  i3/«r.  65,  18  L./. 
Ex.  65.— Considered  in  Walker  v.  Great 
Western  R.  Co.,  L.  R.  2  Ex.  228,  36  L.  J.  Ex. 
123,  15  W.  R.  769. 

4.  company's  attorney.— What- 
ever may  be  their  authority  in  emergencies 
in  the  absence  of  any  superior  officer, 
neither  a  conductor,  station  agent,  nor  so- 
licitor of  a  railway  company  is  authorized 
in  ordinary  cases  to  bind  the  company  for 
surgical  attendance  on  a  passenger  or  an 
employe  injured  in  operating  its  trains.  St. 
Louis,  A.  &^  T.  R.  Co.  v.  Hoover,  53  Ark. 
377,  13  5.  M^.  /iVp.  1092. 

5.    coinpauy'8   pliysician.  —  A 

physician  who   is    only    occasionally   em- 


MEDICAL   SERVICES,  O. 


889 


ployed  by  a  railroad  company  to  attend  to 
persons  injured  on  its  road,  but  who  is  not 
its  regularly  employt;d  piiysician,  has  no 
power  to  bind  the  company  in  the  employ 
uf  another  physician  to  assist  in  a  case  in 
which  lie,  the  former,  is  especially  employed 
by  such  comjiany.  Evattsvtlle  &•  /.  Ji.  Co. 
V.  Spellbring,  i  Ind.  App  167,  27  N.  E.  Kep, 

239- 

A  railroad  conductor,  in  a  pressing  emer- 
gency, may  employ  a  surgeon  to  attend  a 
brakeman  who  is  injured  while  on  duty, 
and,  in  a  proper  case,  bind  the  company  for 
the  professional  services  so  rendered ;  but 
he  cannot  authorize  the  surgeon  to  employ, 
at  the  expense  of  the  company,  such  assist- 
ants as  he  may  deem  necessary.  Terre 
Haute  <S^  /.  R.  Co.  v.  Brown,  107  Ind.  336, 8 
iV.  E.  Rep.  218. 

O. conductor.— As  a  general  rule, 

a  railroad  company  is  not  under  any  legal 
obligation  to  provide  surgical  attendance 
for  an  employe  who  is  injured  while  in  the 
discharge  of  his  duties,  though  it  may  do 
so,  and  its  general  manager  or  superintend- 
ent has  implied  power  to  bind  it  by  a  contract 
foi  such  attendance ;  but  the  conductor  of 
a  train  has  no  such  power  under  ordinary 
circumstances,  and  the  compaiiy  is  not 
bound  by  his  employment  of  a  physician 
and  surgeon  to  attend  an  injured  brakeman, 
unless  it  is  shown  that  his  action  has  been 
ratified  by  the  proper  authorities,  or  that 
exceptional  circumstances  justified  it,  and 
prevented  communication  with  higher  offi- 
cials. Sevier  v.  Birmint^ham,  S.  &*  T.  R. 
R.  Co.,  48  Aw.  &-  Eng.  R.  Qu.  503,  92  A/a. 
258,9  Jjc;.  Rep.  405. — Distinguishing  Terre 
Haute  &  I.  R.  Co.  7'.  McMurray,  98  Ind. 
358,  49  Am.  Rep.  752.  Quoting  St.  Louis, 
A.  &  T.  R.  Co.  V.  Hoover,  53  Ark.  377,  13 
S.  \V.  Rep.  1092. — Peninsular  R  .Co. V.Gary, 
22  Flu.  356.— Disapproving  Terre  Haute 
k  1.  R.  Co.  V.  McMurray,  98  Ind.  358.-5/. 
Loitis  &^  A'.  C.  R.  Co.  V.  Olive,  40  ///.  App. 
82. 

But  an  emergency  may  arise  vesting  such 
authority  in  the  conductor.  Terre  Haute 
(Sx  /.  R.  Co.  V.  McMurray,  22  Am.  <S««  Eng. 
R.  Cas.  371,  98  Ind.  358,  49  Am.  Rep.  752. 

A  conductor  has  authority,  when  one  of 
the  brakemen  on  his  train  is  injured,  to  em- 
ploy a  competent  surgeon  to,  attend  the 
injured  man,  and  the  railroad  company  will 
be  bound  thereby.  He  has  no  authority, 
however,  to  employ   additional  surgeons; 


and  if  he  does  so,  the  railroad  company 
cannot  be  made  to  pay  for  their  services. 
Louisville,  N.  A.  &* ,C.  R.  Co.  v.  Smith,  121 
Ind.  353,  22  A^.  E.  Rep.  775,  6  L.  R.  A.  320. 

Where  a  brakeman  is  injured  at  a  distance 
from  the  general  offices  of  the  company, 
and  needs  immediate  medical  attention,  in 
the  absence  of  any  superior  officer  or  agent 
of  the  company,  the  conductor  may  bind 
the  company  by  employing  a  physician. 
(Zollars,  C.  J.,  dissenting.)  Terre  Haute  &■• 
I.  R.  Co.  V.  McMurray,  22  Am.  &*  Eng. 
R.  Cas.  371,  98 /«</.  358,  49  Am.  Rep.  752. 
— Distinguishing  Tucker  V.  St.  Louis,  K. 
C.  &L  N.  R.  Co.,  54  Mo.  177 ;  Brown  v.  Mis- 
souri, K.  &  T.  R.  Co.,  67  Mo.  122  ;  Mayberry 
V.  Chicago,  R.  I.  &  P.  R.  Co.,  75  Mo.  492. 
Quoting  Marquette  &0.  R.  Co.  v.  Taft,  28 
Mich.  289;  Atlantic  &  P.  R.  Co.  v.  Reisner, 
18  Kan.  458.  Reviewing  Northern  C. 
R.  Co.  V.  State,  29  Md.  420 ;  Walker  v.  Great 
Western  R.  Co.,  L.  R.  2  Ex.  228  ;  Swazey  v. 
Union  Mfg.  Co.,  42  Conn.  556  ;  Atchison  & 
N.  R.  Co.  V.  Reecher,  24  Kan.  228.— Dis- 
approved IN  Peninsular  R.  Co.  v.  Gary,  22 
Fla.  356.  Distinguished  in  Sevier  v. 
Birmingham,  S.  &  T.  R.  R.  Co.,  92  Ala. 
258.  Followed  in  Evansville  &  R.  R. 
Co.  V.  Freeland,  4  Ind.  App.  207. 

Where  there  was  an  accident  on  the  de- 
fendant company's  road,  and  an  imperious 
necessity  for  the  preservation  of  life,  and 
to  prevent  great  bodily  suffering  the  con- 
ductor of  the  train  which  ran  off  the  track 
—the  highest  agent  of  the  company  on  the 
ground — employed  a  physician  with  the 
concurrence  of  the  local  surgeon  of  the 
company  to  attend  to  one  of  the  injured 
persons,  an  employe  of  the  company,  and  it 
was  agreed  by  the  said  physician  and  the 
local  surgeon  that  an  amputation  was  neces- 
sary, which  operation  was  performed  by 
said  physician,  the  local  surgeon  being  un- 
able by  reason  of  the  extraordinary  service 
devolved  upon  him  by  the  injury  of  so 
many  persons  to  give  the  immediate  aid 
and  attention  to  said  employe  required  by 
the  emergency  and  necessity  growing  out 
of  the  accident,  the  railroad  company  was 
bound  by  the  employment  of  said  physi- 
cian, and  liable  for  the  payment  of  his  pro- 
fessional services  in  performing  said  opera- 
tion. The  company  would  not  be  liable, 
however,  for  any  services  rendered  by  said 
physician  after  the  emergency  had  ceased. 
Evansville  &*  R.  R.  Co.  v.  Freeland,  4  Ind. 


I 


s 


394 


MEDICAL   SERVICES,  7-12. 


I V  :,.;-; 


r:    !4 


.iSt 


App.  207,  30  N.  E.  Rep.  803.— Foli.owi.n'g 
Terrc  Haute  &  I.  R.  Co.  v.  McMurray,  98 
Ind.  358. 

7.   eiijflneer.— Where  the  action 

is  10  recover  for  medical  services  rendered 
an  employe,  evidence  tiiat  the  engineer  of 
the  train  telegraphed  ahead  to  a  station 
agent  to  have  a  doctor  at  the  station  for  an 
injured  man  is  not  sufficient  to  show  em- 
ployment by  the  company,  in  the  absence 
of  evidence  that  the  engineer  was  author- 
ized to  make  the  employment.  Cooper  v. 
A'tw  York  C.  &•  //.  K.  A'.  Co.,  6  Hun  (N. 
v.)  276. 

8.  {general  niaiiatircr.— A  general 

manager  has  authority  to  contract  on  be- 
half of  the  company  for  medical  attendance 
upon  a  person  injured  by  an  accident  on 
the  line.  Walker  w.  Great  Western.  K.  Co., 
15  IV.  A\  769,  16  L.  T.  327,  L.  A\  2  Ex.  228. 
36  L.  J.  Ex.  1 23. 

Where  the  general  manager  of  a  railroad 
emi)loys  a  physician  to  attend  an  employe 
who  is  injured,  and  the  company  denies  his 
auilioriiy  to  employ  the  physician,  the 
question  of  his  authority  must  be  deter- 
mined from  the  by-laws,  the  vote  appoint- 
ing; him,  the  acquiescence  of  the  company 
in  former  acts  like  this,  and  the  prevailing 
custom  of  the  authority  of  such  managers  ; 
and  the  question  as  to  whether  the  manager 
had  reasonable  grounds  for  believing  that 
the  employe  had  been  injured  through  neg- 
ligence, making  the  company  liable  in  dam- 
ages, and  that  the  amount  was  small,  had 
nothing  to  do  in  determining  the  extent  of 
his  authority.  Stuazey  v.  Union  Mfg.  Co., 
43  Conn.  556.— Reviewed  in  Terre  Haute 
&  I.  R.  Co.  V.  McMurray,  98  Ind.  358. 

U.  president,— A  physician  cannot 

enforce  a  promise  made  by  the  president  of 
z  railroad  company  to  an  injured  person 
that  the  company  would  pay  his  doctor's 
bill,  when  sucli  promise  was  not  made  in 
the  presence  of  the  physician,  but  conveyed 
to  him  afterwards  by  the  party  to  whom  it 
was  made.  Canney  v.  South  Pac.  Coast  R. 
Co.,  12  Am.  &^  Eng.  R.  Cas.  310,  63  Cal.  501. 

10.  rond  master.— Where  the  evi- 
dence showed  that  the  road  master  who 
employed  the  physician  to  attend  an  em- 
ploye, injured  by  the  road,  was  an  official 
whose  duties  were  limited  to  ;i  superintend- 
ence of  the  roadbed,  track,  etc.,  and  to  see 
that  the  road  was  kept  in  safe  repair  and  con- 
dition ;  and  where  it  was  further  shown  that 
the  superintendents  and  general  officers  of 


the  road  were  alone  authorized  to  employ 
physicians  in  such  cases — held,  that  the 
road  master  acted  beyond  the  scope  of  his 
authority  and  agency,  and  therefore  could 
not  bind  the  road.  Houston  &>  T.  C.  R.  Co. 
V.  U'litlius,  I  Tex.  App.  (Civ.  Cas.)  147. 

11. statiuii  atf<* lit.— Station  agents 

and  conductors  are  not  authorized  merely 
by  virtue  of  their  positions  to  employ  a 
physician  to  attend  an  injured  brakeman 
so  as  to  charge  the  company.  Tucker  v. 
St.  Louis  K,  C.  Sf  N.  R.  Co.,  54  Mo.  177,  12 
Am.  Ry.  Rep.  364.— DISTINGUISHED  IN 
Terre  Haute  &  I.  R.  Co.  v.  McMurray,  98 
Ind.  358.  Reviewed  in  Louisville,  E.  & 
St.  L.  R.  Co.  V.  McVay,  98  Ind.  391. — Cox 
V.  Midland  Counties  R.  Co.,  3  Ex.  268,  13 
Jur.  65.  18  L.  J.  Ex.  65.— Considered  in 
Walker  v.  Great  Western  R.  Co.,  L.  R.  2 
Ex.  228,  36  L.  J.  Ex.  123,  15  W.  R.  769. 

12.  snperiiiteiideiit. — The  gen- 
eral superintendent  of  a  railroad  may,  in 
the  exercise  of  his  general  powers  as  such, 
bind  the  company  by  a  promise  to  pay  the 
cost  of  medical  attendance  rendered  an  in- 
jured employe.  Toledo,  W.  Sr*  W,  R.  Co, 
V.  Rodrigues,  47  ///.  188. — Followed  in 
Toledo,  W.  &  W.  R.  Zo.v.  Prince,  50  111.  26, 
—  Texas  &'  St.  L.  R.  Co.  v.  Myers,  i  Tex. 
App.  (Civ.   Cas.)   168. 

A  surgeon  employed  by  that  officer  is  not 
bound  to  institute  an  inquiry  for  the  pur- 
pose of  determining  whether  the  injured 
man  was  hurt  under  such  circumstances  as 
rendered  the  company  liable.  Cincinnati, 
I.,  St.  L.  (S-  C.  R.  Co.  V.  Davis,  44  Am.  &* 
Eng.  R.  Cas.  459,  126  Ind.  99,  25  A^.  E.  Rep. 
878.— Following  New  Albany  &  S.  R. 
Co.  V.  Haskell,  11  Ind.  301. 

And  in  an  action  by  a  surgeon  so  em- 
ployed evidence  is  not  admissible  on  behalf 
of  the  company  to  prove  that  it  had  in  its 
employment  a  chief  physician  and  surgeon, 
whose  duty  it  was  to  employ  surgeons  to 
give  attention  to  persons  injured.  Cincin- 
nati, I.,  St,  L.  &>  C.  R.  Co.  V.  Davis,  44  Am. 
<S^  Eng.  R.  Cas.  451^,  126  Ind.  99,  25  A'.  E. 
Rep.  878. 

It  will  be  presumed  in  the  absence  of  any- 
thing to  the  contrary  that  the  general  su- 
perintendent of  a  railroad  company  has  au- 
thority to  employ  a  physician  and  surgeon 
to  attend  auiemploye;  and  that  the  division 
superintendent  has  the  sole  power  within 
his  division  as  the  general  superintendent 
has;  and  that  where  an  officer  or  agent  of  a 
railroad  company  has  the  power  in  the  first 


P    l! 


MEDICAL  SERVICES,  13,  14. 


895 


instance  to  employ  a  physician  and  surgeon 
and  make  ilic  company  responsible  for  his 
services,  such  otficer  or  agent  would  also 
have  the  power  to  ratify  a  previous  unau- 
thorized employment  of  such  physician  and 
surgeon,  and  thereby  malie  the  company 
responsible  for  his  services.  Pacific  R,  Co, 
V.  T/ioiiuis,  19  h'iUt.  256,  17  Am.  A'y.  lief.  483. 
— DisTiNOUlsHEU  IN  Union  Pac.  R.  Co.  v. 
Beatty.  26  Am.  k  Eng.  R.  Cas.  84,  35  Kan. 
265.  Rkviewki)  in  Louisville,  E.  &l  St.  L. 
R.  Co,  v,  McVay,  98  Ind.  391. 

The  assistant  superintendent  of  a  railroad 
who  has  general  authority  over  the  road  lias 
authority  to  employ  nurses  for  an  injured 
employe.  Hicham  v.  Chicago,  M.  &^  S/.  P. 
R.  Co.,  79  Awrt  534,  44  N.  IV.  Rep.  805. 

Tiiere  is  no  implied  authority  on  the  part 
of  a  division  superintendent  to  bind  the 
company  by  employing  a  physician  to  at- 
tend a  passenger  injured  by  an  inevitable 
accident.  Union  Pac.  R.  Co.  v.  lieatty,  26 
Am.  &»  Eng.  R.  Cas.  84,  35  Kan.  265,  10 
Pac.  Rep.  845.— Distinguishing  Pacific 
R.  Co.  V.  Thomas,  19  Kan.  256;  Atlantic  & 
P.  R.  Co.  V.  Reisncr.  18  Kan.  458.  Re- 
VIEWINO  Cox  V.  Midland  Counties  R.  Co., 
3  Ex.  268. 

The  supreme  court  of  Michigan  was 
equally  divided  as  to  whether  the  general 
superintendent  of  a  railroad,  in  the  absence 
of  express  authority,  could  bind  the  com- 
pany by  employing  a  surgeon  to  attend  an 
injured  employe.  Marquette  (S^  O.  R.  Co. 
V.  Taft,  28  Mich.  289,  12  Am.  Ry.  Rep.  279. 
—Quoted  in  Terre  Haute  &  I.  R.  Co.  v. 
McMurray,  98  Ind.  358.  Revieveij  in 
Louisville,  E.  &  St.  L.  R.  Co.  v.  McVay,  98 
Ind.  391. 

It  is  fair  to  infer  that  a  superintendent  of 
a  corporation  who,  acting  within  the  scope 
of  his  general  authority  as  shown  by  his 
previous  acts,  ratified  by  the  corporation, 
directs  a  physician  to  attend  a  person  in- 
jured by  the  company's  machinery  acts  as 
the  agent  of  the  corporation,  and  not  on  his 
own  behalf.     McCarthy  \.  Missouri  R.  Co., 

II  Mo.  App.  2,%s- 

Evidence  that  the  superintendent  of  a 
railroad  had  control  of  everything  con- 
nected with  the  running  of  the  road  and 
paid  conductors  and  other  employes,  but 
that  he  had  no  connection  with  or  direction 
over  the  treasury,  and  no  pow  »•  in  the  di- 
rection of  the  company's  affairs,  is  not  suf- 
ficient to  show  authority  in  him  to  bind  the 


company  by  employing  a  physician  to  at- 
tend a  child  which  had  been  injured  by  a 
train.  Stephenson  \.  Neiv  ]'orA-  &^  //.  R. 
Co.,  2  Duer  (.\'.  )'.)  341. — Di.stinguishinu 
Perkins  ?'.  V\'ashi-igt(jn  Ins.  Co.,  4  Cow. 
645;  Liglitbody  v.  North  American  Ins. 
Co.,  23  Wend.  18 

i;j.  yard  muHtcr.— A  yard  master 

whose  business  is  to  have  charge  of  the 
y.ird,  make  up  trains  in  the  yard,  and 
who  has  a  right  to  employ  men  for  all 
purposes  they  are  required  for  in  the  yard 
and  to  do  his  part  of  the  business,  and 
to  discharge  them,  to  employ  brakemen 
for  himself  and  also  for  the  road  trains, 
and  whose  authority  consists  in  employ- 
ing men  in  his  department,  has  no  au- 
thority by  virtue  of  his  office  alone  to  oind 
the  company  in  the  employment  of  a  sur- 
geon to  attend  one  of  the  men  under  him 
in  the  service  of  the  company  who  had 
been  run  over  and  injured  by  the  cars. 
Marquette  &^  O.  R.  Co.  v.  Ta/t,  28  Mich. 
289,  12  Am.  Ry.  Rep.  279. 

14-.  Ratification  of  iiiiaiitliorized 
ciiiployiiicnt.— A  railroad  company  is  not 
bound  to  pay  a  physician's  bill  for  attend- 
ing an  injured  employe  at  the  instance  of 
another  employe  unless  the  services  were 
subsequently  ratified,  or  the  employe  had 
authority  to  employ  the  physician.  .SV. 
Louis  M.  B.  T.  R.  Co.  v.  W^gins,  47  ///. 
App.  474. 

Where  a  surgeon  has  been  employed  by  a 
station  agent  to  attend  an  employe  injured 
in  the  service  of  the  company,  although  he 
may  not  have  express  authority  to  do  so, 
yet  slight  acts  of  ratification  by  the  com- 
pany will  authorize  a  jury  in  finding  the 
employment  was  the  act  of  the  company. 
Cairo  <S«»  St.  L.  R.  Co.  v.  Mahoney,  82  ///. 
73.— Reviewed  in  Louisville,  E.  &  St.  L. 
R.  Co.  V.  McVay,  98  Ind.  391. 

Where  a  conductor,  claiming  to  act  as  the 
agent  of  the  railroad  company,  employs  a 
physician  to  render  professional  aid  to  a 
stranger  injured  by  collision  with  his  train, 
telling  the  physician  that  he  will  leave  the 
injured  person  in  his  care  for  treatment, 
and  for  him  to  send  his  bill  to  the  superin- 
tendent of  the  road,  and  the  company  is 
notified  of  the  employment,  and  permits 
the  physician  to  go  on  and  render  services 
thereunder,  it  thereby  ratifies  the  conduc- 
tor's act,  and  is  liable  for  services  rendered 
until   the   patient   is   convalescent.     Terre 


>i'i 


■* 


• 


,»; 


II 


396 


MEDICAL  SERVICES,  15,  16. 


//att/e  &*  I.  li.  Co.  v.  Stocku'cU,  37  Am.  &* 
Ent;.  li.  Ciis.  278,  118  ///</.  yS,  20  A',  /v'. 
yvV/».  6jo. 

15.  l*li>Hiciuii'H  liirlit  to  recover 
coin|M'ii(*utloii.*  -The  liabit  of  a  railroad 
company  to  pay  for  medical  services  ren- 
dered to  injured  employes  does  not  estab- 
lish a  custom  so  as  to  bind  tlie  company, 
unless  it  is  sliown  to  have  been  so  jjcner- 
ally  known  as  to  raise  the  presumption 
that  the  services  were  rendered  in  referenge 
to  the  custom.  Mobile  ^S^•  M.  A'.  Co.  v.  /<»>-, 
61  ^l/ii.  247. 

In  an  action  against  a  company  to  recover 
for  services  rendered  as  a  physician,  where 
it  is  allei,'ed  that  such  services  were  ren- 
dered at  the  special  instance  and  request  of 
the  defendant,  the  plaintilT  must  show  that 
the  defendant  eujpioycd  him.  or  directed 
him  to  be  employed,  to  perform  the  ser- 
vices (or  which  he  seeks  to  recover.  Evans- 
ville  «5~>  /.  A'.  Co.  v.  Spell'oring,  i  Ind.  App. 
\67,2j  N.  E.  Rep.  239. 

The  surgeon  called  in  to  assist  one  pre- 
viously called  was  bound  to  know  that 
when  the  agent,  who  possessed  limited  spe- 
cial authority,  had  procured  the  services  of 
a  competent  surgeon  his  authority  was  ex- 
hausted, and  if,  with  this  knowledge,  he 
continued  to  give  the  injured  man  atten- 
tion, he  could  not  compel  the  agent's  prin- 
cipal to  compensate  him  for  such  services. 
Louisville,  N.  A.  <S-  C.  R.  Co.  v.  Smith,  121 
Inii.  353,  22  N.  E.  Rep.  775,  6  L.  R.  A.  320. 
Under  an  agreement  that  one  shall  be 
paid  such  sum  for  services  "as  is  men- 
tioned in  the  annexed  fee  bill,"  such  bill 
specifying  in  some  instances  a  minimum 
and  maximum  sum  as  a  fee  for  services 
performed,  "  less  fifty  per  cent,  on  the 
whole  sum  for  such  services  as  are  ren- 
dered, and  the  actual  cost  at  wholesale 
prices  and  cost  of  compounding  medicines 
used,  etc.,  subject  to  the  approval  of  the 
superintendent  of  the  road  and  surgeon  of 
the  division,"  such  entire  claim  must  be 
submitted  for  approval,  and  the  right  to  re- 
cover the  same  depends  upon  such  ap- 
proval, it  not  appearing  that  the  parties 
whose  approval  was  necessary  refused  to 
act  or  acted  fraudulently.  Union  Pac.  R. 
Co.  V.  Anderson,  11  Colo.  293,  18  Pac.  Rep. 
24. 

The  plaintiff,  a  physician,  was,  at  the  in- 

*  Liability  of  railroad  company  for  surgeon's 
attendance  on  injured  employes,  see  note,  i 
Am.  St.  Rki'.  199, 


stance  and  request  of  certain  parties 
wounded  by  a  railroad  accident,  attending 
them  when  tlie  president  of  the  company 
(though  not  in  the  presence  ui  the  physi- 
cian) told  the  wounded  persons  to  employ 
whatever  physician  they  chose,  and  the 
company  would  pay  the  bills.  This  was 
conveyed  to  the  plaintitT;  but  he  testified 
that  he  attended  the  wounded  until  their 
recovery,  in  pursuance  of  the  original  call- 
ing. Hfld,  in  an  action  against  the  com- 
pany upon  contract  for  services  |)erformed, 
tliat  there  was  no  mutuality  of  contract  by 
consent  between  ihem,  and  no  liability  at- 
tached to  the  railroad  company  for  the  ser- 
vices performed  by  the  plaintiff  to  the  per- 
sons who  employed  him.  Canney  v.  South 
Pac.  Coast  R.  Co.,  12  Am.  &•  Eng.  R.  Cas. 
310,  63  Cat.  501. 

10. from  nKeiit  ciiiployiiitir  him. 

— A  boy,  by  the  negligence  of  some  of  the 
crew  of  a  steamboat,  had  his  leg  broken. 
The  captain  took  him  to  the  office  of  a 
physician,  and  requested  that  surgical  at- 
tention be  given  him.  It  was  given.  He 
has  his  cause  of  action  against  the  ca[)tain 
of  the  boat  for  the  value  of  his  services. 
Berry  v.  Pusey,  80  Ky.  166. 

A  boy  was  injured  in  railroad  yards,  and 
an  officer  of  the  company  told  a  physician 
to  "go  ahead  and  do  what  you  can  for  the 
boy."  Before  the  boy  had  received  more 
than  temporary  attention  his  father  ap- 
peared and  took  charge  of  him,  but  the 
physician  continued,  dressed  his  wounds, 
and  made  some  twenty-five  subsequent  vis- 
its. Held,  that  the  question  whether  the 
employment  extended  beyond  the  time 
when  the  boy's  father  appeared  was  for  the 
jury.    Raoul  v,  Newman,  59  Ga.  408. 

In  such  case  the  charge  was  made  against 
the  officer  individually,  and  after  the  com- 
pany had  refused  to  pay  the  bill  suit  was 
brought  against  him.  Held,  that  it  was  a 
question  for  the  jury,  under  all  the  circum- 
stances, whether  the  plaintiff  believed,  or 
had  a  right  to  believe,  that  the  defendant 
offered  his  own  credit.  Raoul  v.  Newman. 
59  Ga.  408. 

A  tramp  was  run  over  by  a  locomotive  in 
a  railway  yard.  A  surgeon  being  sum- 
moned to  help  him,  telephoned  the  railway 
superintendent  and  asked  if  he  should  do 
so.  The  superintendent  answered,  "  Yes." 
Nothing  was  said  about  pr/,  and  in  fact  the 
superintendent  had  no  lulhori^y  to  hind 
the  railway  company  to  pay  for  surgical  aid. 


n    \  %:■ 


r.HDICAL   SERVICES,   17,  18. 


30; 


///•/(/,  tliat  tlicrc  was  no  contract  upon 
wiiii.-li  liu  was  iicrsonully  liable  for  it. 
M/i/it'xan  Colli'f(e  v.  C/iarh'sworih,  54  Mich, 
:;:.  :o  .V.  \V.  AV/.  566. 

I  7.  PIciuliiiuiiiuctiuii  turcoiiipcii- 
siit  loll.— A  petition  in  an  action  10  recover 
\\>)\\\  a  company  for  medical  services  ren- 
dered to  injured  employes  of  the  company 
must  state  a  promise  of  the  company  to 
pay,  or  facts  from  which  the  law  will  imply 
a  promise.  A  mere  averment  that  the  ser- 
vices were  rendered  at  the  request  of  an 
a(;ent  of  the  company  is  not  sutBcient. 
W'clh  V.  Pacific  K.  Co.,  35  Mo.  164. 

18. evirteiice.— In  a  suit  by  a  sur- 
geon aj^ainst  a  railway  company  for  treating 
an  injured  employe,  it  is  proper  to  prove  by 
parol  the  fact  of  the  injury  to  the  servant, 
and  that  the  station  agent  notified  the 
superintendent  of  that  fact  by  telegram. 
Cairo  (^^  St.  L.  R.  Co.  v.  Mahoney,  82  ///. 

73- 
Where   a   company  defends    an    <iction 

against  it  to  recover  for  medical  services 
rendered  at  the  instance  of  the  conductor 
on  the  ground  that  plaintifT  is  not  author- 
ized to  practise  his  profession,  slight  evi- 
dence of  plaintifl's  right  is  suiHcient.  Thus 
evidence  that  plaintiff  had  practised  for 
several  years,  had  a  certificate  from  the 
state  board,  and  that  his  name  appeared  on 
the  register  of  physicians  in  the  county 
clerk's  office  is  sufficient.  Chicago  <S»  A.  R. 
Co.  V.  Smith,  21  ///.  App.  202. 

In  an  action  by  a  physician  and  surgeon 
to  recover  for  the  value  of  his  professional 
services  upon  persons  wounded  in  a  rail- 
road collision  and  placed  in  a  private  hos- 
pital, evidence  on  behalf  of  the  defendant 
of  the  usual  and  customary  charge  in  this 
state  for  all  necessary  medical  and  other 
attendance  upon  patients  in  hospitals  re- 
ceived for  treatment  for  wounds  is  irrele- 
vant. Trenorv.  Central  Pac.  R.  Co.,  50  Cai. 
1-1 -, 

In  an  action  by  a  physician  to  recover  the 
value  of  professional  services  rendered  at 
tiie  request  of  a  conductor  of  thecompany, 
<jn  the  authority  of  the  general  superintend- 
ent, to  a  person  injured  by  one  of  its  trains, 
evidence  that  the  company  had  in  its  em- 
ployment a  chief  physician  and  surgeon, 
whose  duty  it  was  to  employ  surgeons  to 
give  attention  to  persons  injured  by  its 
trains,  is  inadmissible.  Cincinnati,  J.,  St.  L. 
<S-  C.  R.  Co.  V.  Davis,  44  Am.  &*  Eng.  R. 
Cas.  459,  126  Ind.  99,  25  A^.  E.  Rep.  878. 


It  is  error  to  admit  the  declarations  of 
another  physician,  made  at  the  time  of  the 
alleged  employment,  to  the  clleci  that  the 
com[)any  would  pay  the  plaintiff,  unless  it 
is  first  sh(jwn  that  such  physician  had  au- 
thority to  bind  the  company.  Evansvillc 
Sr'  I.  R.  Co.  V.  Spellbring,  1  Ind.  App.  167, 
27  A'.  E.  Rep.  239. 

Where  a  physician  sues  to  recover  for 
medical  services  rendered  to  an  injured 
person  at  the  request  of  two  agents  of  the 
company,  and  the  authority  of  such  agents 
is  denied,  evidence  offered  by  plaintiff  that 
the  company  had  paid  for  other  services 
previously  rendered  to  other  parties  is  prop- 
erly rejected  where  there  is  nothing  to  show 
that  the  employment  was  by  the  same 
agents.  Cooper  v.  New  York  C.  ^  H.  R. 
R.  Co.,  6  Hun  (N.   Y.)  276. 

Plaintiff  was  permitted  to  testify  that  the 
person  who  employed  him  to  render  the 
services  had  stated  that  he  was  the  agent 
of  the  company  and  was  authorized  to  make 
such  employment.  There  was  other  evi- 
dence which  tended  strongly,  if  not  con- 
clusively, to  establish  such  agency.  Hehi, 
that  while  the  declaration  of  the  agent  as 
to  his  agency  was  not  in  itself  sufficient  to 
establish  the  agency,  it  was  competent  evi- 
dence in  connection  with  the  other  proofs. 
Missouri  Pac,  R.  Co.  v.  Rountree,  2  Tex. 
App.  (Civ.  Cas.)  339. 

Plaintiff  was  permitted  to  prove  that  an 
agent  of  the  company  wrote  to  him  refusing 
to  settle  the  claim  because  it  was  excessive. 
He/d,  that  the  evidence  tended  to  prove 
that  the  claim  had  been  presented  and  that 
no  objection  was  made  to  it  except  that  it 
was  excessive,  and  therefore  it  was  not  ir- 
relevant, but  the  letter  itself  was  the  best 
evidence  of  what  was  stated,  and  it  was  im- 
proper to  prove  its  contents  without  proof 
showing  why  the  letter  itself  was  not  intro- 
duced. Missotiri  Pac.  R.  Co.  v.  Rountree,  2 
Tex.  App.  (Civ.  Cas.)  339. 

Plaintiff  was  permitted  to  testify  that  a 
certain  stock  and  damage  agent  of  the  com- 
pany had  stated  to  him  that  the  other  per- 
son who  had  employed  plaintiff  to  render 
the  services  was  »he  agent  of  the  company 
and  was  auihoriz:;d  to  make  the  employ- 
ment. Held,  that  this  was  not  objectionable 
as  hearsay  evidence,  it  appearing  that  such' 
stock  and  damage  agent  had  authority  to 
supervise  cases  like  this  and  to  adjust 
claims.  His  statements  and  admissions, 
within  the  scope  of  his  authority,  were,  in 


s 


)98 


MEDICAL   SERVICES,  19.— MERGER. 


¥'m 


i'   V. 


law,  the  statements  and  admissions  of  the 
company.  Missouri  Pac.  K.  Co.  v.  Roiin- 
tree.  2  Tex.  A  pp.  (Civ,  Cas.)  339. 

1«.  Medical  services  iiiiiler  Ala. 
Act  1880,  relating:  tu  color  blind- 
ness.*—The  act  approved  February  28, 
1887,  requiring  the  examination  of  certain 
railroad  employes  for  color  blindness  and 
other  defects  of  vision  (Sess.  Acts  1886-87, 
p.  87),  expressly  provides  that  the  fee  of 
the  medical  examiner  shall  be  paid  by  the 
railroad  company;  and  he  cannot  refuse  to 
make  the  necessary  examination,  or  to  issue 
his  certificate  to  the  applicant  if  found  duly 
qualified,  because  the  railroad  company 
contests  and  denies  its  liability  to  pay  the 
fee.  Baldwin  v.  Kouns,  31  Avi.  &^  i^ng.  R. 
Cas.  347,  81  Ala.  272,  2  So.  Rep.  638. 

The  applicant  for  examination  and  the 
medical  examiner  each  claiming  and  assert- 
ing rights  under  the  said  statute,  neither 
can  be  heard  to  assail  its  constitutionality. 
Baldwin  v.  Kouns,  31  Am.  &^  Eng.  R.  Cas. 
347,  8i  Ala.  272,  1  So.  Rep.  638. 


MEETINGS. 
Of  arbitrators    in  Canadian    expropriation 
proceedings,     see      Eminent      Domain, 
1258. 

—  commissioners  to  assess  damages,  time 

and  place  of,  see  Eminent  Domain,  505. 

—  directors,  see  Dirkctors,  etc.,  18-20.    . 
and  stockholders  to  effect  consolida- 
tion, see  Consolidation,  10. 

—  stockholders,  see  Stockholders,  9-13. 


MEMORANDA. 

For  refreshing  the  memory  as  evidence .  see 

Evidence,  2.'t2. 
In  margin  of  bill  of  lading,  effect  of,  see 

Bills  of  Lading,  40. 
Left  by  decedent,  as  evidence,  see  Evidence, 

228. 
Of  agreement,  as  evidence,  see  Evidence, 

10. 
—  transactions,  when  deemed  best  evidence, 

see  Evidence,  157. 
Using,  to  refresh  memory,  see  Witnesses, 

81. 


MEMPHIS. 

Decisions  particularly  applicable  to,  see  Mu- 
nicipal Corporations,  45. 

*  Constitutionality  of  Alabama  Act  requiring 
railroad  employfes  to  be  examined  at  the  expense 
of  the  company,  see  38  Am.  &  Eng.  R.  Cas.  S, 
aistr.    See  also  Employbs,  H, 


MEMPHIS  &  CHARLESTON  R.  CO. 

1.  1m  three  corporatiouM  in  one.— 

The  Memphis  &  Charleston  K.  Co.,  incor- 
porated by  legislative  acts  in  Alabama, 
Tennessee,  and  Mississippi,  though  under 
the  same  name,  owned  by  the  same  stock- 
holders, invested  with  like  franchises,  and 
operated  under  the  same  management,  is 
composed  of  three  separate  legal  entities  ; 
and  the  averment  that  it  "  is  a  unit  as  a 
corporation  "  is  the  mere  statement  of  a 
legal  conclusion,  unsupported  by  the  facts. 
Ka/il  V.  j\Iemphis  (5"  C.  R.  Co.,  95  Ala.  ^;i7, 
10  So.  Rep.  661. 


MENTAL  ANGUISH. 

As  an  element  of  damages,  see  Carriage  of 
Passhnoers,  019;  Children,  Injuries 
TO,  185;  Death  by  Wrongful  Act, 
402;  Employes,  Injuries  to,  757. 

Averments  as  to,  see  Damages,  81  ;  Death 
BV  WkoncI'UI,  Act,  184. 

Excessive  damages  for,  see  Carriage  of 
Passenger..,  049. 

Measure  of  damages  for,  see  Damages,  03, 
71  ;  Telegraph,  etc..  Lines,  lO. 

Of  ejected  passenger,  damages  for,  see  Ejec- 
T'o\  OK  Passengers,  100. 

—  parents,  damages  for,  in  action  for  death 
of  child,  see  Death  by  Wrongful  Act, 
408. 

Prospective  damages  for,  see  Damages,  46. 

Sufficiency  of  evidence  to  prove,  see  Car- 
riage of  Passengers,  579;  Damages, 
89. 

When  may  be  considered  in  assessing  dam- 
ages, see  Carriage  of  Merchandise, 
798. 


MERCHANDISE. 

Obstruction  of  sidewalks  with,  see  Express 

Companies,  3. 
When  may  be  carried  as  baggage,  see  Bag  • 

gage,  37,  38. 

See  also  Carriage  of  Merchandise. 


MERGER. 

Of  cause  of  action  in  judgment,  see  Animals, 
Injuries  to,  304;  Judgment,  13. 

—  easement  in  fee,  see  Easements,  10. 

—  mort^iige  in  fee,  see  Mortgages,  307. 

—  oral  agreement  in  written  contract,  see 

Carriage  of  Merchandise,  400;   Evi- 
dence, 180. 

—  previous  negotiations  in  bill  of  lading,  see 

Bills  of  Lading,  44. 


n^p 


MEXICAN   GRANTS— MINES  AND  MINING. 


399 


MEXICAN  GRANTS. 

Exception  of  land  inr'  ed  in,  from  land 
grant,  see  Lanu  Guants,  49,  80 ;  Pub- 
lic Lands,  35. 


HICHIOAN. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 260. 

Constitutionality  of  statutes  of,  as  to  mu- 
^licipal  aid  for  railways,  see  Municipal 
AND  Local  Aid,  ;J7. 

relative  to  condemnation  of  land, 

see  Eminknt    Domain,  ;J4. 

tax  laws  of,  see  Taxai  ion,  ;J3. 

Constitutional  provisions  in,  relative  to  con- 
demnation of  land,  see  Emimeni'  Domain, 
13. 

Doctrine  of  comparative  negligence  denied 
in,  see  Compar.jTive  Negligence,  i58. 

Double  damages  for  killing  stock  in,  see 
Animals,  Injuries  to,  OOO. 

Duty  of  traveler  at  crossing  to  stop,  look, 
and  listen  in,  see  Crossings,    Injuries, 

EIC,  AT.  23tt. 

Federal  grants  to,  see  Land  Grants,  32. 

Grants  by,  to  railroads,  see  Land  Grants, 
lli>. 

Homesteads  in  public  lands  in,  see  Public 
Lands,  7. 

Laying  out  streets  across  railways  under 
statutes  of,  see  Crossing  of  Streets  and 
Highways,  40. 

Liability  of  carrier  as  warehouseman  'n,  see 
Carriage  of  Merchandise,  34/>,  346. 

company  to  laborers  employed  by  con- 
tractors in,  see  Construction  of  Rail- 
ways. 91. 

Local  assessment  upon  steam  railways  in. 
for  repairs,  paving,  etc..  see  Streets  and 
Highways.  349. 

Operation  of  statute  of,  giving  right  of  action 
for  causing  death,  see  Death  by  Wrong- 
ful Act,  24. 

r'laintifTs  pleadings  must  negative  contribu- 
tory negligenc'j,  see  Contributory  Neg- 
ligence, 55. 

Rule  as  to  imputed  negligence  in,  see  Im- 
in-TED  Nkgi.ioknce,  13. 

Statute  of,  as  to  flagmen  at  crossings,  see 
Cr(jssin(:s,  Injuiuks,  etc.,  at,  71. 

regulating  liability  for  injuries  caused 

by  fire,  see  Firks.  lO. 

relative  to  intersection  of   railways, 

see  Crossing  ok  Railw\ys,  9. 

Statutory  duty  of  company  in  construction 
of  street  crossing  railway,  see  Crossing 
OF  Streets  and  Highways,  59. 

to  fence  in,  see  Fences,  27. 


Taxation  in  aid  of  railways  in,  see  Municipal 
AND  Local  Aid,  416. 


MICHIGAN  CENTRAL  R.  CO. 

1.  Owns  its  road  niid  need  not 
fence  it. — The  company  is  the  legal  owner 
of  its  road,  by  purchase  and  grant  from  the 
state,  and  by  the  express  terms  of  charter 
has  the  entire  and  exclusive  right  of  its  pos- 
session and  control.  Wtlltams  v.  Michi- 
gan C.  K.  Co.,  2  iMic/t.  259. 

The  company  is  not  bound  by  its  charter, 
or  the  principles  of  the  common  law,  to 
fence  its  road.  Williams  v.  Michigan  C. 
A'.  Co.,  2  Mich.  259. 

The  state  acquired  the  right  to  the  land 
for  the  purpose  of  the  road,  which  right 
passed  to  the  company  under  its  charter, 
and  the  company's  agents  were  protected  in 
building  fences  on  the  land  for  the  use  of 
the  road.  Smith  v.  McAdam,  3  Mich.  506. 
— Following  People  ex  rel.  v.  Michigan 
Southern  R.  Co.,  3  Mich.  496. 

2.  Wliat  roads  may  be  built  near  it. 
— Section  5  of  the  charter — construed  as  to 
what  roads  near  it  stiall  be  built;  and  the 
rights  of  the  corporation  thereunder — de- 
termined. Michigan  C.  R.  Co.  v.  Michigan 
Southern  R.  Co.,  4  Mich.  361. 


MILEAGE  TICKETS. 
See  Tickets  and  Fares,  96-101. 


MILLS. 

Condemnation  of,  for  railway  purposes,  soe 
Eminent  Domain,  126. 

Injuries  to,  in  condemnation  proceedings,  see 
Eminent  Domain,  176,  610,712. 

License  to  erect,  see  License,  6. 

Rights  of  owneis,  see  Waters  and  Water- 
courses, 19,  20. 


MINERAL  LANDS. 
Appropriation  of.  see  Mines,  etc.,  1, 
Exception  of,  in  grants,  see  Land  Grants, 
48,  66,  80 ;  Public  Lands,  34. 


MINERALS. 

Instructions  as  to,  on  assessment  of  dam- 
ages by  jury,  see  Eminent  Domain,  585. 

Under  land  condemned,  title  to,  see  Eminent 
Domain,  146,  1092. 


MINES  AND  MINING. 
Measure  of  damages  for  injuries  to  mines, 
see  Eminent  Domain,  664. 


I 
I 

I 


400 


MINES  AND   MINING,  l-O. 


v-V\t 


Power  of  mining^  company  to  condemn  lands, 

sec  Kminknt  Domain.  82. 
Right  of  owner  or  lessee  of,  to  compensation 

in  England,  see  Eminent  Dumain,  1 158. 

1 .  Appropriation  of  iiiiiierul  lands 
—Damages.* — In  ni;ikii)<;  roads  over  un- 
opened mines,  it  is  not  a  Liibjuct  of  damages 
tliat  the  owner  will  be  thereby  put  to  ex- 
pense and  inconvenience  when  he  begins  to 
work  his  mines.  Searlc  v.  Lackawanna  &^ 
B.  R.  Co.,  33  Pa.  S/.  57. 

Where  a  party  leases  coal  lands  beneath 
a  railroad  track  with  knowledge  of  the  track, 
he  cannot  require  the  company  to  remove 
it.  If  he  has  any  remedy,  it  is  for  statutory 
damages.  Philadelphia  <S«"  A'.  R.  Co.  v. 
Lawrence,  10  Phila.  {Pa.)  604. 

2.  Goiiipelliiijr  purchase  of  miner- 
als.—Where  a  railway  company  has  pur- 
chased a  right  of  way,  so  as  to  preclude  the 
landowner  from  working  minerals  in  a  way 
injurious  to  its  property,  such  landowner 
cannot,  in  the  absence  of  a  statutory  pro- 
vision to  that  effect,  compel  the  company  to 
purchase  those  minerals.  North-Eastern  R. 
Co.  V.  Crosland,  1 1  W.  R.  83,  32  L.  J.  Ch. 
3S3.  4  J^e  G.,  F.  &^ /.  550. 

a.  lti{i:ht  of  landowner  to  work 
mines,  generally.— Where  a  landowner 
grants  to  a  railway  company  the  right  to 
.nake  a  tunnel  through  his  land,  he  has  the 
same  right  to  work  mines,  under  the  sev- 
enty-seventh and  seventy-eighth  sections  of 
the  Railways  Clauses  Act,  as  if  the  company 
had  actually  purchased  the  land.  London  &* 
N.  IV.  R.  Co.  V.  Ackroyd,  8  Jur.  N.  5.  911, 
31  L.  J.  Ch.  588,  10  IV.  R.  367. 

A  grantor  of  lands  conveyed  to  a  railway 
company  is  not  entitled  to  work  mines  ^ven 
under  his  own  land  in  any  manner  calcu- 
lated to  endanger  the  railway,  although 
in  the  conveyance  minerals  are  reserved. 
Caledonian  R.  Co.  v.  Sprot,  2  Macq.  H.  L. 
Cas.  449,  2/ur.  N.  S.  623. 

The  owner  of  mines  subjacent  or  adjacent 
to  lands  taken  by  a  railway  company  under 
the  Lands  Clauses  Act  1845,  and  the  Rail- 
ways Clauses  Act  1845,  is  entitled  to  work 
them   without    making    compensation,  al- 

*  Appropriation  of  mineral  lands,  see  note,  17 
Am.  &  Eng.  R.  Cas.  116. 

Minerals  under  right  of  way;  compensation 
of  landowners  ;  right  of  landowners  to  work 
mines  ;  surface  support,  see  note,  24  Am.  & 
Eng.  R  Cas.  142. 

Mines  and  minerals  under  public  highways, 
see  note,  14  Am.  &  Eng.  R.  Cas,  486. 


though  such  mines  and  minerals  are  neces- 
sary for  the  support  of  the  railway.  The 
company,  if  it  refuses  to  make  compensa- 
tion, can  only  compel  him  to  work  the 
mines  in  a  proper  manner.  Great  Western 
R.  Co.  v.  Bennett.  36  L.  J.  Q.  B.  1 33,  15  W. 
R.  647,  16  Z.  T.  186.  L.  R.  2  H.  L.  Cas.  27. 
Fletcher  v.  Great  IVestern  R.  Co. ,  6  /ur.  A'. 
S.  961.  29  L.  /.  Ex.  253,  8  W.  R.  501. 

Although  a  railway  company  has  a  right 
to  restrain  a  landowner  from  working  mines 
underneath  its  railway  so  as  to  cause  in- 
jury, it  cannot  require  the  mine  to  be  filled 
with  water,  to  the  exclusion  of  any  future 
working.  Elliot  \,  North-Eastern  R.  Co.,\o 
H.  L.  Cas.  333.  9/ur.  N.  S.  555,  32  L.  J.  Ch. 
402,  II  W.  R.  604. 8  L.  T.  337.— Followed 
IN  Popplewell  V.  Hodkinson,  L  R.  4  Ex. 
248. — See  also  Midland  R.  Co.  v.  Miles,  24 
Am.  <S-  Eni^.  R.  Cas.  137,  L.  R.  30  Ch.  D. 
634.  Midland  R.  Co.  v.  Miles,  L.  R.  33  Ch. 
D.  632. 

4.  Notice  of  intention  to  work. — 
To  justify  an  owner  in  giving  a  notice  of  in- 
tention to  work  mines  it  is  not  necessary  he 
should  intend  to  work  the  minerals  himself 
but  there  must  be  a  real  and  bona  fide  i\t.%\x& 
to  work  by  himself  or  by  his  lessees  or  li- 
censees. Midland  R.  Co.  v.  Robinson,  43 
Am.  &*  Eng.  R.  Cas.  557,  .Z.  R.  15  App. 
Cas.  19;  affirming  L.  R.  yj  Ch.  D.  386. 

Such  notice  is  not  invalid  or  unreason- 
able merely  because  it  includes  the  minerals 
under  a  long  extent  of  railway.  Midland 
R.  Co.  V.  Robinson,  L.  R.  37  Ch.  D.  386. 

5.  Counter  notice  to  leave  mine 
unworked.— Under  8  &  9  Vict.  c.  20  and 
c.  33,  a  railway  company  is  not  bound  to  fix 
any  period  after  the  notice  by  a  mine  owner 
of  his  intention  to  work  the  minerals 
within  which  it  must  give  counter  notice  of 
its  desire  to  have  such  mines  left  unworked. 
The  company  can  stop  the  working  when- 
ever it  fears  danger  by  notice  that  it  will 
pay  compensation.  Dixon  v.  Caledonian  R. 
Co.,  L.  R.  5  App.  Cas.  820,  43  Z.  T.  513,  29 
IV.  R.  249. 

€t.  Right  to  work  tlroni  the  surface. 
—The  word  "  mines  "  in  the  seventy-seventh 
section  of  the  Railways  Clauses  Act  1845  in- 
cludes minerals  whether  got  by  underground 
or  by  open  workings ;  and  therefore  a  bed  of 
clay  on  which  the  railway  had  been  made  was 
as  a  mine  excepted  out  of  the  conveyance 
of  the  land  to  the  railway  company,  and 
might,  unless  the  company  was  willing  to 
make  compensation  to  the  ■  landowner,  be 


MINES  AND   MINING,  7-0. 


401 


dug  and  worked  by  him.  Midland  R.  Co. 
V.  Haunchwood  B.  &*  T.  Co.,  6  Aw.  &• 
E//jf.  A\  Cas.  555,  L.  A'.  20  C/i.  D.  552.— 
Distinguishing  Caledonian  R.  Co.  v.  Sprot, 
2  Macq.  H.  L.  Cas.  449;  Elliot  v.  North- 
Eastern  R.  Co.,  10  H.  L.  Cas.  333.  Quot- 
ing Great  Western  R.  Co.  v.  Bennett,  L. 
R.  2  n.  L.  Cas.  38;  Great  Western  R.  Co. 
V.  Fletcher,  5  H.  &  N.  689.  Revikwing 
[ainieson  v.  North  British  R.  Co.,  6  Scot. 
Law  Rep.  18S  ;  Dixon  v.  Caledonian  R.  Co., 
L.  R.  5  App.  Cas.  ^zo. —  Ritabon  Jl.  &'  T.  C. 
Co.  V.  Urcat  Western  A'.  Co.,  54  Am.  iS->  Eiig. 
R.  Cas.  600,  [1893]  I  Ch.  427. —  Approving 
Great  Western  R.  Co.  v.  Bennett,  L.  R. 
2  H.  L.  Cas.  27  ;  Midland  R.  Co.  v.  Robin- 
son. L.  R.  15  App.  Cas.  19. 

The  "mines  of  coal,  ironstone,  slate,  and 
other  minerals"  which  section  77  of  the 
Railways  Clauses  Act  1845  excepts  out  of 
tlie  conveyance  to  the  railway  company,  and 
the  "  mines  or  minerals"  under  the  railway, 
or  w  iihin  the  specified  distance,  which  sec- 
tion 78  empowers  the  owner  to  give  notice 
of  his  intention  to  work,  include  not  only 
beds  and  seams  of  minerals  got  by  under- 
ground working,  but  also  such  as  can  only 
be  worked,  and  according  to  the  custom  of 
the  district  would  be  properly  worked,  by 
open  or  surface  operations.  (Lord  Mac- 
n;ishten  dissenting.)  Midland  R.  Co.  v. 
Roliiitson,  43  Am.  G^*  Eng.  R.  Cas.  557,  L.  R. 
15  Apt>.  Cas.  19;  affirming  L.  R.  37  Ch.  D. 
386.— Distingulshing  Dixon  v.  Caledonian 
K.  Co.,  L.  R.  5  App.  Cas.  S23.  Quoting 
Errington  v.  Metropolitan  D.  R.  Co.,  L.  R. 
19  Ci).  D.  559;  Pountney  v.  Clayton,  11  Q. 
n.  D.  820 ;  Great  Western  R.  Co.  v.  Ben- 
nett, L.  R.  2  ,H.  L.  Cas.  27.— Approved  in 
Riiabon  B.  &  T.  C.  Co.  v.  Great  Western  R. 
Co.,  54  Am.  &  Eng.   R.  Cas.  600,  [1893]  i 

Ci!.  427. 

Linestone  is  a  mineral  within  the  mean- 
ing of  the  above  sections.  Midland  R.  Co. 
V.  Robinson,  43  Am.  &*  Eng.  R.  Cas.  557,  L. 
R.  15  App.  Cas.  19;  affirming  L.  R.  yj  Ch. 
J).  386.— Following  Provost  v.  Farie,  L. 
R.  13  App.  Cas.  657. 

7.  Ititrlit  to  tunnel  under  railway. 
—Under  section  80  of  the  Railways  Clauses 
Consolidation  Act  1845,  the  owner  of  min- 
erals whose  access  is  cut  ofl  by  reason  of  a 
railway  company  having  purchased  the 
m  ;rals  lying  under  its  line  or  within  forty 
yards  from  it  may,  for  the  purpose  of  work- 
ing his  minerals  which  are  on  the  other  side 
of  the  railway,  tunnel  under  the  line.  This 
6  D.  R.  D.— 26 


power  extends  to  a  bed  of  clay.  Midland 
R.  Co.  V.  Miles.  L.  R.  30  Ch.  D.  634,  53  L. 
T.  381.  34  W.  R.  136. 

Under  section  81  of  said  act,  1845,  the 
owner  of  minerals  is  entitled  to  be  compen- 
sated by  a  railway  company  for  additional 
expense  caused  by  reason  of  his  having  to 
work  the  minerals  by  means  of  a  tunnel 
under  the  railway.  Midland  R.  Co.  v. 
Miles,  L.  R.  30  Ch.  D.  634.  53  L.  T.  381,  34 
\V.  R.  136. 

8.  En.joinin^  excavation  beneath 
rljflit  of  way.— A  company  is  entitled  to 
a  perpetual  injunction  against  the  working 
of  mines  adjoining  a  railway  if  compensa- 
tion for  not  working  such  mines  has  been 
agreed  on  and  obtained  or  tendered  under 
the  Railways  Clauses  Act  1845.  Smith  v. 
Great  Western  R.  Co.,  L.  R.  3  App.  Cas. 
165,  47  L.  J.  Ch.  D.  97.  37  L.  T.  645  ;  af- 
firming L.  R.  2  Ch.  D.  235,  34  L.  T.  267.— 
Dlssentko  FROiM  :n  Dixon  v.  Caledonian 
R.  Co.,  L.  R.  5  App.  Cas.  820,  43  L.  T.  513, 
29  W.  R.  249. 

Where  a  company  compensates  the  lessee 
of  mines  whose  lease  is  of  sufficient  length 
to  enable  him  to  exhaust  the  coal,  it  be- 
comes the  owner  and  is  entitled  to  a  per- 
petual injunction  to  restrain  the  working  of 
the  mines.  Smith  v.  Great  Western  R.  Co., 
L.  R.  3  App.  Cas.  165,  47  L.  J.  Ch.  D.  97,  37 
L.  T.  645 ;  affirming  L.  R.  2  Ch.  D.  235,  34 
L.  T.  267. — Dissented  from  in  Dixon  v. 
Caledonian  R.  Co.,  L.  R.  5  App.  Cas.  820, 
43  L.  T.  513,  29  W.  R.  249. 

In  such  a  case  the  company  may  enjoin  a 
subsequent  purchaser  of  the  mines  from 
working  the  subjacent  minerals,  but  with- 
out prejudice  to  the  question  of  the  right 
of  such  purchaser,  as  claiming  under  the 
reversioners,  to  compensation  for  his  inter- 
est in  the  mines.  Great  Western  R.  Co.  v. 
Smith,  26  W.  R.  130;  affirming  L.  R.  2  Ch. 
D.  235,  45  L.  J.  Ch.  D.  235,  34  L.  T.  267,  24 
W.  R.  443- 

O.  Ri{;lit  to  lateral  Mupport.— A  rail- 
way company  is  entitled  to  the  subjacent 
and  lateral  support  necessary  for  the  main- 
tenance of  its  road  on  land  granted  to  it  by 
a  person  who  reserved  mineral  rights  and 
the  right  to  work  mines,  so  long  as  the 
same  be  done  without  entering  upon  or 
breaking  the  surface  of  the  land.  Caledo- 
nian R.  Co.  V.  Belhaven,  3  Macq.  H.  L.  Cas. 
56,  3  /ur,  N.  S.  573.  But  see  Pountney  v. 
Clayton,  14  Am.  <S-  Eng.  R.  Cas.  476,  L.  R. 
II  Q.  B.  D.  820,— Distinguishing  Great 


-I! 


402 


MINES   AND   MINING,  10-13. 


^v 


Western  R.  Co.  7^  Bennett,  L.  R.  2  H.  L.  Cas. 
27.  Quoting  Dixon  v.  Caledonian  R.  Co., 
5  -A  pp.  Cas.  820;  Great  Western  R.  Co.  v. 
Fletcher,  5  H.  &  N.  689,  29  L.  J.  Ex.  253. 

The  right  to  adjacent  support  attaches 
to  land  sold  for  the  purposes  of  a  railway, 
and  the  vendor  cannot  work  minerals,  al- 
though this  right  has  been  reserved,  in  such 
manner  as  to  prejudice  the  use  of  the  land 
for  the  railway.  Elliot  v.  North-Eastern  R, 
Co.,  10  //.  L.  Cas.  333,  9  /ttr.  N.  S.  555,  32 
L.  J.  Ch.  402,  1 1  W.  R.  604,  8  L.  T.  337.— 
Followed  in  Popplewell  v.  Hodkinson, 
L.  R.  4  Ex.  248. — North-Eastern  R.  Co.  v. 
Crosland.  11  IV.  R.  83,32  L.J.  Ch.  353,4 
DeG.,  F.  &>/.  550. 

Where  a  person  sells  land  to  be  used  as 
the  foundation  of  a  bridge  for  a  railway 
constructed  under  an  act  expressly  except- 
ing all  mines  from  the  operation  of  the  con- 
veyance, declaring  the  landowner  entitled 
to  work  the  mines  under  the  land  not  pur- 
chased doing  no  damage  to  the  railway,  but 
giving  the  directors  the  power  to  compel  a 
sale,  and  requiring  him  on  approaching 
within  twenty  yards  of  the  masonry  to  give 
notice  to  the  directors,  and  then  giving 
them  the  right  to  compel  a  sale  of  his  in- 
tc  est  in  the  mines  within  twenty  yards,  but 
allowing  him  to  work  the  mines  doing  no 
avoidable  damage,  in  the  event  that  the  di- 
rectors siiould  decline  to  purchase,  the  di- 
rectors are  not  excluded  from  the  benefit, 
beyond  the  twenty  yards,  of  the  common 
law  right  to  adjacent  support.  Elliot  v. 
North-Eastern  R.  Co.,  10  H.  L.  Cas.  333,  9 
fur.  N.  5.  555,  32  L.  /.  Ch.  402,  8  L.  T. 
337,  II  W.  R.  604.— Followed  in  Popple- 
well V.  Hodkinson,  L.  R.  4  Ex.  248. 

10.  Constructioii  of  leases— Rights 
of  lessees.— A  demise  of  land  "excepting 
and  reserving  the  mines  under  the  same, 
with  power  to  dig,  win,  and  carry  away  the 
mines,  with  free  ingress,  egress,  and  regress, 
way-leave  and  passage  to  and  from  the 
same,  or  to  and  from  any  other  mines, 
lands,  and  grounds,  on  foot  and  on  horse- 
back, and  with  carts  and  all  manner  of  car- 
riages, and  also  all  necessary  and  convenient 
passages,  conveniences,  privileges,  and  pow- 
ers whatsoever,  for  the  purposes  aforesaid, 
and  particularly  of  laying,  making,  and  grant- 
ing wagon  ways  in  and  over  the  premises, 
or  any  part  thereof,"  should  be  construed  as 
giving  not  a  general  power  of  making  ways 
and  granting  way-leaves  for  all  purposes, 
but  for  the  limited  one  of  getting  the  ex- 


cepted minerals.  Durham  &*  S.  R.  Co.  v. 
Walker,  z  G.  6f  D.  326,  3  Railw.  Cas.  36,  2 
Q.  B.  940.— Distinguished  in  Bidder  v. 
North  Staffordshire  R.  Co.,  L.  R.  4  Q.  B.  D. 
412,  48  L.  J.  Q.  B.  D.  248,  40  L.  T.  801,  27 
W.  R.  540. 

A  lessee  of  mines  authorized  to  take  and 
use  "  full  and  sufficient  rail  and  other  ways, 
paths,  and  passages  to  and  for  the  said  les- 
sees and  their  agents,  servants,  and  work- 
men, or  others,"  to  carry  away  "all  or  any 
of  the  coal,  cannel,  slack,  iron,  and  iron- 
stone, and  produce  of  the  mines  thereby 
demised,  or  any  other  mines,"  may  lay 
down  a  railway  for  the  carriage  of  coal 
from  adjoining  collieries,  and  is  not  re- 
stricted to  using  the  railv/ay  for  the  car- 
riage of  the  coal  of  the  mines  demised  by 
the  lease.  Bidder  v.  North  Staffordshire 
R.  Co.,  L.  R.  4  Q.  B.  Z>.  412,  48  L.  J.  Q.  B. 
D.  248,  40  L.  T'.  801,  27  W.  R.  540. 

11.  Liability  for  personal  livluries 
caused  by  negligence. — When  a  com- 
pany is  both  a  railroad  and  mining  company, 
it  cannot  be  compelled  to  answer  as  the 
proprietor  of  a  railroad,  under  Ky.  Gen. 
St.  ch.  57,  §  I,  for  injury  caused  by  negli- 
gence in  its  mining  operations.  But  the 
company,  as  a  mining  company,  may  be  lia- 
ble, under  section  3  of  said  chapter,  for 
punitive  damages  for  the  loss  or  destruc- 
tion of  life  by  the  wilful  neglect  of  the 
company,  its  agents  or  servants,  in  the 
management  of  a  tramway,  etc., attached  to 
its  coal  mines.  Claxton  v.  Lexitigton  6»  B. 
S.  R.  Co.,  13  Bush  {Ky.)  636,  17  Am.  Ry. 
Rep.  12. 

1 2.  Liability  for  breaking  Into  ad- 
joining mine.  —  Although  it  is  ultra 
vires  for  a  railway  company  to  work  mines, 
yet  where  the  statute  implies  that  the  com- 
pany is  to  have  this  power  until  the  mines 
are  sold,  a  company  with  which  it  is  amal- 
gamated is  liable  for  its  wrongful  acts  in 
breaking  into  an  adjoining  mine.  Ecclesi- 
astical Com'rs  for  England  v.  North-East- 
ern R.   Co.,  L,  R.  4  Ch.  D.  845,  36  L.  T. 

174. 

13.  Liability  for  flooding  mines.— 

A  railway  company  is  responsible  where 
water  escapes  from  a  stream  in  flood  time, 
or  collects  from  rain  falling  on  the  railway, 
and  flows  along  a  cutting  and  percolates 
through  the  substratum  into  mines  beneath, 
although  such  mines  had  not  been  worked 
at  the  time  of  the  formation  of  the  railway. 
Bagnall  v.  London  &*  N.  W.  R.  Co.,  7  H. 


I     £, 


ymr 


MINES  AND   MINING,  14.— MISCONDUCT. 


403 


&•  N.  423,  i\  L.  J.  Ex.  121 ;  affirmed  in  31 
Z.  /.  Ex.  480. 

14.  Railway  connection  with  coal 
mines. — Where  there  are  several  railroads 
passing  near  a  coal  mine,  the  same  consti- 
tutional obligation  rests  upon  all  of  them 
to  permit  connections  with  tiieir  several 
tracks.  Under  such  circumstances  a  com- 
mon track  to  be  used  by  all  the  roads  for 
receiving  coal  into  their  cars  becomes  a 
necessity,  and  the  owner  of  the  mine  will 
not  be  compelled  to  have  a  separate  coal 
chute  or  a  separate  entrance  to  his  mine  for 
tlie  switch  of  each  railroad  company.  Chi- 
cago &■*  A.  K.  Co.  V.  Suffern,  38  Am.  &»  Eng. 
R.  Cas.  508,  129  ///.  274,  21  N.  E.  Rep.  824; 
affirming  27  ///.  App.  404. 


MINNEAPOLIS  &  C.  V.  R.  CO. 

1.  Construction  of  charter.— Under 

tiie  act  of  March  10,  1862,  entitled  "An 
act  to  facilitate  the  construction  of  the 
Minneapolis  and  Cedar  Valley  railroad,  and 
t(j  uniend  and  continue  certain  acts  in  rela- 
tion thereto,"  transferring  to  certain  per- 
sons therein  named  all  the  rights,  benefits, 
privileges,  property,  franchises, and  interests 
oi  ihe  Minneapolis  &  Cedar  Valley  R.  Co. 
acquiicd  by  the  state,  the  corporation  organ- 
ized by  the  grantees  is  not  the  same  cor- 
poration as  the  Minneapolis  &  Cedar  Valley 
R.  Co.,  nor  liable  for  its  debts.  Fitz  v. 
Minnesota  C.  Ji.  Co.,  11  Minn.  414  {Gii. 
3^4)- 

2.  Liability  of  stockholders.— There 
is  no  statutory  provision  making  stockhold- 
ers in  the  Minneapolis  &  Cedar  Valley  R. 
Co.  liable  for  its  debts.  Robertson  v.  Sibley, 
10  Minn,  323  {(jil.  253). 


MINNESOTA. 

Aid  to  railways  by  the  state,  see  State  Aid, 
24. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 207. 

Constitutionality  of  statute  of,  as  to  munici- 
pal aid  for  railways,  see  Municipal  and 
Local  Aid,  38. 

removal  of  causes,  see  Re- 
moval OF  Causes,  2. 

relative  to  condemnation  of  land, 

see  Eminent  Domain,  35. 

tax  laws  of,  see  Taxation,  34. 

Deductions  for  benefits  under  condemnation 
laws  of,  s -e  EMiNKNr  Domain,  740« 


Double  damages  for  killing  stock  in,  see  Ani- 
mals, Injuries  to,  OOl. 

Federal  grants  to,  see  Land  Grants,  33-39. 

Grants  by,  to  railroads,  see  Land  Grants, 
120. 

—  of   swamp  lands  in,   see  Land  Grants, 

132. 

Homesteads  in  public  lands  in,  see  Public 
Lands,  8. 

Injuries  to  animals  running  at  large  in,  see 
Animals,  Injuries  10,  270. 

Local  assessment  upon  steam  railways  in, 
for  repairs,  paving,  etc.,  see  Streets  and 
Highways,  350. 

Occupation  of  streets  by  steam  roads  under 
legislative  grants  of,  see  Streeis  and 
H''-«wAvs,  49. 

Rule  as  to  imputed  negligence  in,  see  Im- 
puted Negligence,  14. 

Statutes  of,  regulating  liability  to  servant 
for  injuries  caused  by  negligence  of  fel- 
low -  servants,  see  Fellow  -  servants, 
186-188. 

relative  to  intersection  of  railways,  see 

Crossing  of  Railroads,  10. 

Statutory  duty  of  company  in  construction  of 
street  crossing  railway,  see  Crossing  of 
Streets  and  Highways,  60. 

to  fence  in,  see  Fences,  28. 

—  regulation  of  grade  crossings  in,  see 
Crossing  of  Streets  and  Highways, 
89. 

Taking  land  for  streets  and  laying  out  roads 

in,  see  Streets  and  Highways,  22. 
Taxation  of  land  grants  in,  see  Taxation, 

119. 
W!  -tn  negligence  of  parent  is  imputable  to 

child    in,    see    Children,    Injuries   to, 

123. 


MISCONDUCT. 

Evidence  of  wilful,  see  Carriage  of  Passen- 
gers, 662,  573. 

Forfeiture  of  compensation  by  receiver  for, 
see  Receivers,  162. 

Liability  of  agent  to  principal  for,  see 
Agency,  31,  32. 

Of  arbitrators,  impeachment  of  award  for, 
see  Arbitration  and  Award,  32. 

—  commissioners,  setting  aside  report  for, 

see  Eminent  Domain,  805. 

—  employes,  excepting  liability  for,  see 
Bills  of  Lading,  69. 

protection  of  passengers  against,  see 

Carriage  of  Passengers,  302-312. 

—  jurors,  as  ground  for  new  trial,  see  New 

Trial,  11-13,  199. 

—  officers,  no  defense  against  innocent  pur- 

chasers  of  bonds,   see  Municipal  and 
Local  Aid,  353. 


, 


\ 


.    ■■;) 


1 .1 


404 


MISDELIVERY— MISSOURI. 


Of  passengers,  see  Carriage  of  Passengers, 

—    receiver,    removal    for,    see     Receivers, 
107. 


MISDELIVEBT. 

By  carrier,  of  goods,  see  Carriage  of  Mer- 
chandise, 273-288;  Express  Com- 
panies, 4r8. 

—  final  carrier,  liability  for,  see  Carriage  of 
Merchandise,  <>i>l. 

Of  cattle,  by  carrier,  see  Carriage  of  Live 
Stock,  57-o1>. 


MISJOINDER. 

Of  causes  of  action,  i>ee  Animals,  Injuries 
TO,  3tiO;  Elevated  Railways,  09; 
Emi'lovks,  Injuries  to,  504;  Plead- 
ing. 06. 

—  complainant  in  equity,  see  Parties  to  Ac- 

tions, 20. 

—  defendants,  see  Parties  to  Actions,  12. 

—  husband  or  wife  as  parties,  see  Husband 

and  Wife,  35. 


MISLEADING  INSTRUCTIONS. 

When  ground  for  reversal,  see  Animals,  In- 
juries TO,  571;  Appeal  and  Error, 
50;  Carriage  of  Passengers,  508; 
Children,  Injuries  to,  175;  Compara- 
tive Negligence,  18;  Contributory 
Negligence,  llO  ;  Death  by  Wrongful 
Act,  33G,  350;  Eminent  Domain, 
587,  588 ;  Employes,  Injuries  to, 
649;  Fellow-servants,  504;  Fires, 
301 ;  Negligence,  111;  Trespassers, 
Injuries  TO,  124;  Trial,  122,  146. 


^':      rtMER. 

In  actt<->'-      PT;,\st  "s'.    "-s,  see  Carriage  OF 

Mk.     ...-.  ...K,  V;.  . 
Nonsuit  Ml  CA:^ca  r;f     '^  •'r-'^h,  69. 
Of  corporatiot. .     i.     r.^     tect,  see  Name  of 

Railroad,  2-4. 
—  parties,  in  process,  see  Process,  5,  6. 


MISSISSIPPI 

Aid  to  railways  by  the  state,  see  State  Aid, 
25. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 268. 

Civil  rights  acts  of,  see  Colored  Persons,  3. 

Conditions  exempting  carrier  from  liability 
to  person  riding  on  free  pass  in,  see 
Passes,  30. 


Constitutionality  of  statutes  of,  as  to  munic- 
ipal aid  for  railways,  see  Municipal  and 
Local  Aid,  39. 

relative  to  condemnation  of  land, 

see  Eminent  Domain,  36. 

tax  laws  of,  see  Taxation,  35. 

Deductions  for  benefits  under  condemnation 
laws  of,  see  Eminent  Domain,  741. 

Injuries  to  animals  running  at  large  in,  see 
Animals,  Injuries  to,  250. 

License  taxes  in,  see  Taxation,  307. 

Rule  as  to  imputed  negligence  in,  see  Im- 
puted Negligunce,  15. 

Statutes  of,  regulating  liability  for  injuries 
caused  by  fire,  see  Fires,  11. 

to  servant  for  injuries  caused  by 

negligence  of  fellow-servants,  see  Fel- 
low-servants, 180,  lOO. 

relative  to  condemning  right  of  way 

through  streets,  see  Streets  and  High- 
ways, 117. 

Statutory  provisions  in,  relative  to  abandon- 
ment of  station,  see  Stations  and  Depots, 
53. 

Taxation  in  aid  of  railways  in,  see  Municipal 
AND  Local  Aid,  417. 


MISSOURI. 

Aid  to  railways  by  the  state,  see  State  Aid, 
26. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 260. 

Condition  exempting  carrier  from  liability 
to  person  riding  on  free  pass  in,  see 
Passes,  31. 

Constitutionality  of  statutes  of,  as  to  munic- 
ipal aid  for  railways,  see  Municipal  and 
Local  Aid,  40. 

—  —  —  —  granting   remedy   for    causing 

death,  see  Death  by  Wrongful  Act,  9. 

— -^  relative  to  condemnation  of  land, 

see  Eminent  Domain,  37. 

tax  laws  of,  see  Taxation,  36. 

Constitutional  provisions  in,  relative  to  con- 
demnation of  land,  see  Eminent  Domain, 
14. 

Deductions  for  benefits  under  condemnation 
laws  of,  see  Eminent  Domain,  742. 

Doctrine  of  comparative  negligence  denied 
in,  see  Comparative  Negligence,  29. 

Double  damages  for  killing  stock  in,  see  An- 
imals, Injuries  to,  602-604. 

—  liability  of  stockholders  to  creditors  in, 

see  Stockholders,  42,  43. 
Federal  grants  to,  see  Land  Grants,  40- 

44. 
Grants  by,  to  railroads,  see   Land  Grants, 

121. 

—  «f  swamp  lands  in,    see    Land   Grants, 

133. 


MISSOURI    PACIFIC   R.   CO.— MISTAKE. 


405 


and. 


ti3n 


Injuries  to  animals  running  at  large  in,  see 

Animals,  Injuriksto,  251. 
Jurisdiction  of  supreme  court  of  see  Juris- 

DIC'IION,  iil. 

Liability  of  company  to  laborers  employed 
by  contractors  in,  see  Consikuction  of 
Railways,  1>2. 

Measure  of  damages  for  injury  to  employe 
under  Damage  Act  of,  see  Empluvus,  In- 

Ji  RIKS     I'O,    701. 

Mechanics'  Lien  Law  of,  see  Liens,  lO. 
Occupation  of  streets  by  steam  roads  under 
legislative   grants  of,   see  Streets  and 

UlClIWAYS,  50. 

Operation  of  statute  of,  giving  right  of  ac- 
tion for  causing  death,  see  Death  by 
Wkongkul  Act,  25. 

Penalties  for  overcharges  in,  see  Charges, 
54. 

Plaintiff's  pleadings  need  not  negative  con- 
tributory negligence  in,  see  Contribu* 
TORY  Neglioknce,  50. 

Raising  money  by  lotteries  under  statutes  of, 
see  Lotteries,  1,  2. 

Review  of  town  bonding  proceedings  by 
mandamus  in,  see  Municital  and  Lucal 
Aid,  449. 

Right  of  action  for  killing  stock  under  stat- 
utes of,  see  Animals,  Injuries  to,  290> 
.JOO. 

—  to  sue  in,  for  causing  death  in  foreign 

state,    see    Deaih    hy   Wronuful    Act, 
120. 
Rule  as  to  imputed   negligence   in.  see  Im- 

I'lTED    NEtJLUiENCE.    1<$. 

Statutes  of,  as  to  defective  crossings,  see 
Crossings,  Injuries,  etc!,  at,  32. 

regulating  liability  to  servant  for  in- 
juries caused  by  negligence  of  fellow- 
servants,  see  Feixovv-skrvants,  191. 

relating  to  Texas  cattle,  see  Interstate 

Commerce,  219. 

relative  to  distribution  of  damages  for 

causing  death,  see  Death  by  Wrongful 
Act,  02. 

"■ drains,  see  Drains,  3. 

~  ~  ~  ~  intersection  of  railways,  see 
Crossing  ok  Railroads,  11. 

Statutory  duty  of  company  in  construction  of 
street  crossing  railway,  see  Crossing  of 
Strkets  and  Hir.HWAYS,  Ol. 

to  fence  in,  see  Fences,  29. 

—  provisions  in,  limiting  amount  recoverable 

for  causing  death,  see  Death  by  Wrong- 
Fin.  Act,  ,1«8. 
Taxation  in  aid  of  railways  in,  see  Munici- 
r\L  AND  Local  Aid,  418. 

—  of  land  grants  in,  see  Taxation.  120. 
Transportation    of  diseased    cattle  in,   see 

Carriage  of  Live  Stock,  113. 


When  negligence  of  parent  is  imputable  to 
child  in,  see  Children,  Injuries  to, 
124. 


MISSOURI  PACIFIC  R.  CO. 

1.  Status  ill  Nebraska. —  The  com- 
pany is  a  domestic  corporation  under  the 
laws  of  Nebraska,  and  does  not  owe  its 
corporate  existence  therein  to  the  laws  of 
the  United  Slates  or  of  any  other  state. 
S/afe  V.  Missouri  Pac.  K.  Co.,  25  Neb,  164, 
41  N.  IV.  Kep,  127.— Following  State  v. 
Chicago.  B.  &  Q.  R.  Co.,  25  Neb.  156.— 
Followed  in  Tresterz/.  Missouri  Pac.  R. 
Co.,  33  Neb.  171. 

2. iu  Texas.— The  Missouri  Pacific 

R.  Co.,  though  a  resident  of  Missouri,  trans- 
acts business  in  Texas,  and  wliere  it  has 
business  offices  and  agents.  It  is  subject  to 
the  local  jurisdiction  of  the  courts  of  this 
state.  Missouri  Pac.  R.  Co.  v.  Cullers,  81 
Tex,  382,  17  S.  W.  Rep.  19. 


MISTAKE. 

As  a  defense  to  action  on  subscription,  see 
Subscriptions  to  Stock.  104. 

—  to  title,  person  paying  taxes  under,  when 

entitled  to  land  damages,  see  Eminent 
Domain,  445. 

Correction  of,  see  Equity,  10. 

Honest,  in  effort  to  perform  duty,  when  con- 
tributory negligence,  see  Employes,  In- 
juries to,  310. 

Impeachment  of  award  or  verdict  for,  see 
Arbitration  and  Award.  31  ;  Eminent 
Domain,  804,  835;  New  Trial.  30. 

In  engineers'  estimates,  relief  against,  see 
Construction  of  Railways,  04. 

—  quoting  rates,  effect  of,  on  rights  of  car- 

rier, see  Carriage  of  Merchandise, 
415. 

—  selling  berth  a  second  time,  see  Sleeping, 

ETC.,  Companies,  lO. 

—  ticket,  effect  of,  see  Tickets  and  Fares, 

8. 

Mutual,  as  a  defense  to  specific  performance, 
see  Specific  Performance,  27.  ' 

Of  agents,  in  expelling  passengers,  liability 
of  company  for,  see  Ejection  of  Passen- 
gers, 70,  130. 

—  notary,  liability  of  collectors  for,  see  Ex- 

press Companies.  19. 

Parol  evidence  to  show,  see  Bills  of  Lading, 
41  ;  Evidence,  190. 

Persons  on  wrong  train  by,  when  deemed 
passengers,  see  Carriage  of  Passen- 
gers, 17. 


'J  !?% 


um. 


!  V 


i       I 


H^ 


^4     1 


40G 


MITIGATION— MORRIS   CANAL  &   BANKING  CO.,  1,2. 


MITIGATION. 


Of  damages,  see  Animals,  Injuries  to,  503 ; 
Chilurkn,  Injuries  to,  188;  Dkath  by 
Wrongful  Act,  285-288;  Ejection 
OF  Passengkrs,  120-123;  Eminent 
Domain,  0»7-041t  Fires,  35U-302: 
Flooding  Lands,  OO. 

—  —  for  contributory  negligence,  see  Con- 

tributory Negligence,  93 ;  Crossings, 
Injuries,  etc.,  at,  207 :  Death  by 
Wrongful  Act.  181;  Fellow-ser- 
vants, 407  ;  Trespassers,  Injuries  to, 
IIO. 

—  —  to  abutting  owner  by  construction  of 

railway  in  street,  see  Streets  and  High- 
ways, 271. 
what  may  be  considered  in,  see  Car- 
riage OF   Passengers,  633;   Damages, 
07t  98 ;  Employes,  Injuries  to,  704. 


MIXED  OUESTIONS. 

Of  law  and  fact,  see  Carriage  of  Passengers, 
04 ;  Contributory  Negligence,  86; 
Employes,  Injuries  to,  719;  Fellow- 
servants,  513;  Negligence,  75-78; 
Trial,  113-115. 


MOB. 


Liability  for  cars  destroyed  by,  see  Coun- 
ties, 3. 

Limitation  of  liability  for  goods  burned  by, 
see  Bills  OF  Lading,  77. 

Protection  of  passengers  from  acts  of,  see 
Carriage  of  Passengers,  328. 


MONEY. 

Delivery  of,  by  carrier  to  a  bank,  see  Car- 
riage OF  Merchandise,  250. 

Implied  power  to  borrow,  and  mortgage 
property  to  secure,  see  Mortgages,  1. 

Land  damages  must  be  paid  in,  see  Eminent 
Domain,  381. 

Liability  for  loss  of  unsealed  package  of,  see 
Express  Companies,  30. 

Of  passenger,  liability  for  loss  of,  see  Sleep- 
ing, etc..  Companies,  24-35. 

Paid  into  court  for  right  of  way,  recovery  of, 
by  personal  representative,  see  Execu- 
tors AND  Administrators,  13. 

in  condemnation  proceedings,  when 

subject  to  execution,  see  Execution,  0« 

Payments  in  Confederate,  see  War,  3. 

—  other  than  in,  see  Payment,  2-4;  Sub- 
scriptions to  Stock,  19-23. 

Power  of  foreign  corporation  to  borrow,  see 
Foreign  Corporations,  13. 


Priority  of  mortgage  over  loans  of,  see 
Mortgages,  125. 

When  company  liable  for,  as  common  car- 
rier, see  Carriage  OF  Merchandise,  O. 

—  may  be  carried  as  baggage,  see  Baggage, 
40,  84. 

— reached  in  attachment,  see  Attach- 
ment, ETC.,  27. 


MONTANA. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 270. 

Injuries  to  animals  running  at  large  in,  see 
Animals,  Injuries  to,  252. 

Jurisdiction  of  district  court  in,  see  Jurisdic- 
tion, 17. 

PlaintiiT's  pleadings  need  not  negative  con- 
tributory negligence  in,  see  Contributory 
Negligence,  00. 

Statute  of.  regulating  liability  for  injuries 
caused  by  fire,  see  Fires,  12. 

to  servant  for  injuries  caused  by 

negligence  of  fellow-servants,  see  Fel- 
low-servants, 192. 


MORRIS  CANAL  ft  BANKING  CO. 

1.  Power  to  coiideniii  land. —  The 

charter  of  the  company  was  granted  in  1824. 
By  the  constitution  of  the  state  in  existence  at 
that  time  it  was  competent  for  the  legislature 
to  authorize  the  taking  of  the  property  of 
private  individuals  for  public  uses  without 
compensation  first  made.  Lehigh  Valley  R. 
Co.  v.  McFarlan,  31  N.  J.  Eq.  706;  revers- 
ttig  30  N.  J.  Eq.  180. 

The  charter  is  irrepealable,  and  created  a 
contract  which  is  incapable  of  alteration  or 
repe!;!  by  the  legislature,  except  by  mutual 
consent,  and  is,  therefore,  unaflected  by  the 
constitution  of  1844,  which  forbids  the  tak- 
ing of  property  by  private  corporations  for 
public  use  without  compensation  first  made. 
The  company's  charter,  and  the  powers  and 
privileges  therein  granted,  continue,  not- 
withstanding the  change  of  policy  adopted 
by  the  constitution  of  1844,  and  possess 
equal  vitality  with  respect  to  acts  done  by 
the  company  under  it  after  the  constitution 
of  1844  became  the  fundamental  law  as  if 
done  before  the  adoption  of  that  instru- 
ment. Lehigh  Valley  R.  C".  v.  McFarlan, 
31  N.  J.  Eq.  706 ;  reversing  30  A^.  /.  Eq.  180. 

2.  When  title  vests.  —  The  title  to 
lands  taken,  and  the  right  to  waters  and 
streams  appropriated,  do  not  finally  vest  in 
the  company  until  compensation  be  made; 


!     ■ 


MORRIS   CANAL  &   BANKING   CO.,  3.— MORTGAGES. 


407 


but,  nevertlieless,  the  occupation  and  use 
tlieieof  by  the  company  are  made  lawful, 
tlioiigl)  compensation  therefor  lias  not  been 
ascertained  or  psiid.  Lehigh  Valley  R.  Co. 
V.  Mc  Far  Ian,  31  ^V.  /.  Eq.  706;  r  ever  sin};  30 
X.  /.  Eq.  180.  — Exi'LAlNKU  IN  Mayor,  etc., 
of  jersey  City  v.  Gardner,  33  N.  J.  Eq.  622. 

.'i.  Iteiiicdy  of  luudowiier.  —  The 
t.iiveiiiieth  section  of  the  charter  construed 
in  connection  with  the  twenty-seventh  sec- 
tion gives  to  persons  injured  a  right  of  ac- 
tion against  the  company  for  damages  to 
water  rights  as  well  as  to  lands,  tenements, 
and  hereditaments,  whether  the  damages 
sustained  be  direct  or  consequential,  and 
whether  they  arose  from  the  construction 
of  the  canal  in  the  first  instance,  or  from 
the  subsequent  operations  of  the  company. 
Lehigh  Valley  R.  (Jo.  v.  Mc  Far  Ian,  31  ^V.  /. 
Eq.  706 ;   reversing  30  xV.  J.  Eq.  1 80. 

The  only  redress  for  the  owner  of  lands 
or  water  rights  which  are  taken  or  inju- 
riously affected  by  the  construction  or  opera- 
tion of  the  canal  without  compensation 
having  been  made  is  by  action  fur  damages. 
He  cannot  remove  the  company  from  the 
premises  by  ejectment,  or  abate  the  com- 
pany's works  as  a  nuisance,  though  compen- 
sation has  not  been  made  for  his  injuries. 
Lehigh  Valley  R.  Co.  v.  Mc  Far  Ian,  31  N.J. 
Eq.  706;  reversing  30  A'.  /.  Eq.  iSo. 


MORTALITY  TABLES. 

Admissibility  and  effect  of,  as  evidence,  see 

EVIDKNCE,  8ii,  247. 
Judicial  notice  of,  see  Evidence,  1 14> 
See  also  Life  Tables. 


MORTOAOE  DEBENTURES. 
Form  and  characteristics  of,  see  Debentures, 


MORTGAGEES. 

As  parties  in  condemnation  proceedings,  see 
Eminknt  Domain,  2((8. 

Taxation  of  road  in  possession  of,  see  Taxa- 
tion, 64. 


MORTGAGES. 

Damages  to  the  fee  in  cases  of,  see  Elevated 
Railways,  140. 

Given  on  consolidation,  right  of  stockhold- 
ers to  set  aside,  see  S 1  ockiidldi  rs,  8H. 

Holder  of,  when  entitled  to  compensation  in 
England,  see  Eminent  Domain,  1100. 


Insurable    interest    of   trustees  under,  see 

FiRK  Insuranck,  3. 
Leasing  mortgaged  roads,  see  Leases,  etc., 

j»2-m>. 

Of  corporate  property,  authority  of  president 
to  make,  srt-  Prksident,  4. 

—  road,   effect   of,  to  transfer  contract  for 

carrying  the  mail,  see  Cakriaoe  of 
Mails,  5. 

On  land  condemned,  foreclosure  of,  see  Emi- 
nent Domain,  140. 

redemption  or  payment  of,  by  com- 
pany, see  Eminent  Domain,  141. 

Power  to  give,  see  Androscoggin  R.  Co.,  3 ; 
Cori'ora  rioNs,  1 1. 

Priority  among,  see  Receivers,  77. 

Property  in  mortgagee's  hands,  when  sub- 
ject to  execution,  see  Execution,  7. 

Right  of  mortgagor  in  possession,  to  sue  for 
loss  of,  by  fire,  see  Fires,  147,  154. 

parties  to.  to  land  damages,  see  Emi- 
nent Domain,  43<{,  437. 

—  to  interest  on,  see  Interest,  O. 

Situs  of,  for  taxation,  see  Taxation,  134. 
Taking  notes  secured  by,  in  payment,  see 

Subscriptions  to  Stock,  22. 
Transfer  of  stock  whether  pledge  or,  see 

Stock,  43. 
Trustees  under,  when  liable  as  garnishees, 

see  Attaciimknt,  etc,  li>. 
When  create  estoppel,  see  Estoi'pel,  17. 

—  deeds   of  trust  are  deemed  to  be.   see 

Deeds  of  Trust,  1. 
I.  POWER  TO  MORTOAOE  PROPERTY 

OR  FRANCHISE 408 

1.  Necessity     of     Legislatix'e 

Authority 408 

2.  Validity    and   Interpreta- 

tion of  Statutes 409 

II.  WHAT  PROPERTY  HAT  BE  UORT- 
OAOED  OR  COVERED  BY  A  MORT- 
OAOE   411 

1.  In  General. 411 

2.  Tolls  and  Income. 416 

3.  After-acquired  Property . .  418 

4.  Rolling  Stock 426 

a.  In  General 426 

b.  Relative   Rights  of 

Mortgagee  and 
Conditional  Ven- 
dor or  Lessor. .. .  429 

III.  EXECUTION ;  REGISTRATION ;  FIL- 

ING:   433 

IV.  VALIDITY,  INTERPRETATION,  AND 

EFFECT    436 

1.  ///  General 436 

2.  Protection  of  Prior  Liens .  443 

3.  Pruirity  over  Equities  Sub- 

sequently Arising 453 


Jrl 


''*-   ' 


408 


MORTGAGES,  1,2. 


Ti     . 


,  -, 


7.  THE  TRUSTEES 459 

1.  Appoiittment  and  Remcni' 

11/ ;  h'illiitg  Vacanciis.. .  459 

2.  Their  J'lni'its,  Duties,  ami 

I.  iahilitiis 461 

VI.  ENFORCEMENT;  FORECLOSURE...  470 

1.  The     Different     Remedies 

Axuiilable 470 

2.  Jtirisdietion ■ 472 

3.  A'/i,'-/'/   to  Action  and  De- 

fenses   47  5 

a.  Wlio  may  Sue  or  be 

Joined  as   Plain- 
tiffs..   475 

b.  Parties  Defendant; 

Intervention 478 

c.  Notice  of  Foreclo- 

sure;   Defenses..  482 

4.  Pleading  and  Evidence ....  484 

5.  Jiidi^ment  or  Decree 487 

6.  Receivers 489 

7.  The  Sale 498 

<?.  W  li  e  n  Proper; 
How  Conducted; 
Effect 498 

b.  Rights  and  Liabili- 

ties of   Purchas- 
ers  501 

c.  Distribution  of 

Proceeds 508 

d.  Proceedings  to  Re- 

strain or  Vacate.  512 

e.  Matters  of  Review.  516 

VII.  EXTINGUISHMENT    518 

VIII.  REDEMPTION 520 

I    POWER  TO    MORTGAGE     PROPERTY    OR 
FRANCHISE. 

I.  Necessity  of  Legislative  Authority. 
1.  Implied  power  to  borrow  iiioncy 
uiid  iiiortpi|;e  property  t«)  secure  it.* 

— A  railroad  corporation,  unless  restrained 
by  statute,  has  the  implied  power  to  bor- 
row money  to  construct  its  road,  and  to  se- 
cure the  debt  thus  created  by  mortgage  on 
its  property.  Sai'annah  (5«  Af.  Ji.  Co.  v. 
Lancaster,  62  Ala.  555.  Allen  v.  Montgom- 
ery A'.  Co..  1 1  Ala.  437.  A/o6ile  &-  C.  P.  A'. 
Co.  V.  Talinan.  15   Ala.  472.     Kelly  \r.  Ala- 

*  Power  of  corporation  to  mortgage  property, 
see  note,  9  L.  R.  A.  142. 

Power  of  company  to  mortgage  railroad  prop- 
erty and  franchise,  see  46  Am.  &  Eng.  R.  Cas. 
2Q2,  ahslr. 

Power  of  railroad  company  to  borrow  money, 
and  secure  it  by  mortgage.  Rights  of  a  state 
that  has  subscribed  to  the  stock  thereof,  see 
36  Am.  &  Eng.  R.  Cas.  661,  abstr. 


hama  &*  C.  P.  Co.,  58  Ala.  489,  21  Am.  Ry. 
Rep.  138. 

A  mortgage  by  a  railroad  company  to  se- 
cure money  borrowed  for  the  construction 
of  its  road  is  not  opposed  to  the  public 
policy  of  the  state.  This  is  indicated  by  the 
general  course  of  lej;islation  upon  the  sub- 
ject, liardstmvn  Sr'  L.  R.  Co.  v.  Metcalfe, 
4  Mete.  (K'y.)  199. 

That  a  railroad  company  voluntarily  mort- 
gaged its  property  to  secure  tlie  money 
which  it  was  expressly  authorized  by  it; 
charter  to  borrow,  and  that  its  bondholders 
invested  their  money  upon  the  faith  of  the 
mortgage,  relieves  the  case  from  the  opera- 
tion of  the  decision  in  Winchester  &  L. 
Turnpike  Road  Co.  v.  Vimont,  5  B.  Mon. 
(Ky.)  I.  If  tiiat  decision  can  be  regarded 
as  denying  that  property  or  franchises  in 
the  use  of  which  the  public  has  an  interest 
can  be  assigned,  the  court  would  hesitate  to 
follow  it  in  view  of  other  decisions.  Bards- 
town  <&*  L.  R.  Co.  V.  Metcalfe,  4  Mete. 
{Ky.)  199. 

The  power  of  a  railroad  corporation  to 
borrow  money  and  mortgage  its  property 
is  not  limited  by  the  usual  clause  in  its  char- 
ter, providing  that  shares  shall  not  be  as- 
sessed over  $100,  and  that,  if  more  money 
is  necessary,  it  shall  be  raised  by  creating 
new  shares.  Richards  v.  Merrimack  &*  C. 
R.  R.  Co.,44JV.  H.  127. 

If  the  power  otherwise  exists  in  a  corpo- 
ration to  issue  bonds  and  secure  them  by  a 
mortgage  on  its  property,  no  suit  to  restrain 
such  action  will  lie  by  a  common  stock- 
holder, and  holders  of  preferred  stock  stand 
in  no  better  condition.  Thompson  v.  Erie 
R.  Co.,  II  Abb.  Pr.  N.  S.  (N.  Y.)  188,  42 
How.  Pr.  68. 

The  Texas  Constitution  of  1866  does  not 
prevent  a  railway  corporation  from  mort- 
gaging its  franchise,  or  a  sale  under  a  fore- 
closure decree,  or  by  a  mortgage  trustee  au- 
thorized to  sell.  Houston  &*  T.  C.  R.  Co. 
V.  Shirley,  4  Am.  &*  Eng.  R.  Cas.  443,  54 
Tex.  125. 

2.  Necessity  of  .statutory  authority. 
— A  railway  corporation  cannot  mortgage 
its  franchise  without  legislative  authority. 
Com.  V.  Smith,  10  Allen  (Mass.)  448.  State 
V.  Morgan,  28  La.  Ann.  482.  Atkinson 
V.  Marietta  &'  C.  R.  Co.,  15  Ohio  St.  21. 
Frazier  v.  East  Tenn.,  V.  &*  G.  R.  Co.,  40 
Atn.  &*  Eng.  R.  Cas.  358,  88  Tenn.  138,  12 
S.  IV.  Rep.  537. 

A  street-railway  company  cannot  mort- 


MORTGAGES,  3-«. 


409 


gape  its  franchise,  road,  or  property  without 
k-i;islative  authority  ;  and  under  Mass.  Gen. 
St.  ch.  229,  concerning  street  railways,  a 
mortj,'age  by  said  company  of  all  its  prop- 
erty is  void,  and  will  not  pass  title  to 
such  property  as  the  company  might  under 
other  circumstances  mortgage.  Richardson 
s.  Sibley,  11  ////t?«  (;»/<»«.)  65.— QUOTED  IN 
Naglee  7'.  Alexandria  &  F.  R.  Co., 32  Am.  & 
Eng.  U.  Cas.  401,  83  Va.  707. 

Special  authority  is  necessary  for  a  rail- 
road company  to  borrow  money  and  mort- 
gage its  franchises  and  property  to  secure  it, 
because  not  incident  to  its  charier.  Pitts- 
burg 6-  C.  R,  Co.  V.  Alleglreny  County,  63 
Pa.  St.  126. 

A  mortgage  of  the  property  of  a  corpora- 
tion is  an  increase  of  its  indebtedness,  and 
can  be  effected  only  in  compliance  with  art. 
xvi.,  section  7,  of  the  constitution  of  Pennsyl- 
vania, and  the  act  of  April  18,  1874.  Other- 
wise the  mortgage  is  void.  Pittsburgh  &* 
S.  L.  R.  Co.  V.  Rothschild,  (Pa.)  26  Am.  &* 
Eiig.  R.  Cas.  50,  4  Atl.  Rep.  385. 

.'{.  or  legislative  rntiflcation.— 

Where  a  railroad  company  has  made  a  mort- 
gage or  sale  of  it"  corporate  franchise  with- 
out authority  in  its  charter,  the  same  may 
be  ratified  and  rendered  valid  by  subsequent 
legislative  enactment.  Hatcher  v.  Toledo, 
IV.  (S-  IV.  R.  Co.,  62  ///.  477-  Shepiey  v. 
Atlantic  6-  St.  L.  R.  Co.,  55  Me.  395.— Re- 
viewed IN  Sacramento  &  P.  R.  Co.  v.  San 
Francisco  Superior  Court,  55  Cal.  453. — 
Daniels  v.  Hart,  1 1 8  Mass.  1J43. 

An  act  of  the  legislature  authorizing  the 
trustees  under  a  railroad  mortgage  to  sell 
the  road  is  a  ratification  of  the  mortgage, 
so  far  as  the  state  and  public  are  concerned, 
Richards  v.  Merrimack  &*  C.  R.  R.  Co. ,  44 
X  //.  127. 

4.  How  the  rule  is  applied  iu  Eiig- 
laiui.— Where  a  railway  company  is  given 
power  to  sue  and  be  sued,  and  pay  bor- 
rowed money  upcjn  instruments  which  on 
their  face  import  a  covenant  for  repayment, 
if  money  is  so  borrowed  and  so  secured, 
and  not  duly  repaid,  an  action  may  be 
maintained  against  the  company  on  a 
breach  of  the  covenant,  although  there  are 
no  specific  statutory  provisions  enabling 
the  company  to  bind  itself  by  such  a  cove- 
nant and  giving  a  right  of  action  against  it. 
Eastern  Union  R.  Co,  v.  Hart,  8  Ex.  116,  17 
Jur.  89,  22  L.J.  Ex.  20. 

Where  money  is  advanced  to  a  railway 
company  upon  bond  and  mortgage  before 


the  borrowing  powers  of  the  company  are 
in  operation,  although  the  money  is  admit- 
tedly expended  in  the  construction  of  the 
railway,  the  creditors  will  not  be  allowed  to 
come  in  in  equal  priority  with  other  bona 
fide  debenture  and  mortgage  creditors.  In 
re  Bagnalstffwn  &*  W.  R.  Co.,  4  /r.  E^.  172. 

2.    Validity  and  Interpretation  of  Statutes. 

5.  Constitutionality  of  statutes.— 

The  legislature  has  the  constitutional  power 
to  authorize  a  corporation  created  by  it  to 
borrow  money  by  mortgaging  its  property 
and  franchises,  or  by  issuing  preferred  stock 
and  pledging  its  revenues  for  the  payment 
of  the  dividends  thereon,  where  such  course 
is  necessary  to  carry  into  effect  the  object 
for  which  the  corporation  was  created. 
Covington  v.  Covington  &*  C.  Bridge  Co.,  10 
Bush  {Ay.)  69. 

The  Oregon  Act.  of  Oct.,  1882  (known  as 
"the  Mortgage  Tax  Law"),  §  3,  provid- 
ing that  "  all  mortgages,  deeds  of  trust, 
contracts,  or  other  obligations  hereafter 
executed,  whereby  land  situated  in  more 
than  one  county  in  this  state  is  made  se- 
curity for  the  payment  of  a  debt,  shall  be 
void,"  is  not  in  conflict  with  the  state  con- 
stitution, art.  4,  section  20,  declaring 
that  every  act  shall  embrace  but  one  sub- 
ject, which  must  be  expressed  in  the  title; 
and  a  railroad  mortgage,  executed  in  viola- 
tion of  the  statute,  is  void.  Farmers'  L.  &* 
T.  Co.  v.  Oregon  6-  C.  R.  Co.,  11  Sawy.  ( U. 
5.)  1 1 5,  24  Fed.  Rep.  407. 

6.  What  amounts  to  an  authority 
to  mortgagee,  generally.  —  A  railroad 
corporation,  under  California  Act  of  1861, 
§  15,  as  amended  by  the  act  of  May  14, 
1862,  §  I,  has  power,  by  a  majority  vote 
of  its  board  of  directors,  to  issue  bonds 
to  pay  debts  contracted,  or  contracts 
made  for  iron  for  constructing  and  com- 
pleting its  road,  and  to  execute  a  mortgage 
on  its  corporate  property  to  secure  the 
payment  of  the  same.  McLane  v.  Placer- 
ville  &*  S.  V.  R.  Co.,  26  Am.  <S-  Eng.  R. 
Cas.  404,  66  Cal.  606,  6  Pac.  Rep.  748. 

A  company  authorized  by  its  charter  to 
borrow  money  on  its  credit  necessary  to 
complete  the  road,  but  not  expressly  au- 
thorized to  make  a  mortgage  upon  its 
property  or  franchises  to  secure  the  bonds 
issued  therefor,  has  an  implied  power  to  do 
so,  though  it  cannot  mortgage  its  corporate 
existence,  or  any  prerogative  franchise  con- 


I 
I 

§ 


'    i 


i^i^  '.r     m 


■  ■  j^'^" 


410 


MORTGAGES,  7-0. 


ferred  upon  it.  Rut  the  rif;ht  to  build  and 
use  a  ^lilroad  is  not  a  prerogative  franchise. 
A  purchaser  under  its  tnortgage  would  take 
the  road,  subject  to  the  terms  of  tiie  charter 
designed  to  protect  the  public,  and  would 
be  bound  tliereby  as  fully  as  the  corpora- 
tion, liitrdstown  &•  L,  A'.  Co.  v.  Melcalfe, 
4  Mill.  (Ky.)  199. 

7.  Power  to  mcII  liiuliideH  power  to 
iiiortKOK*!-— If  ii  company  has  the  power 
to  sell,  it  lias  the  power  to  mortgage,  which 
is  the  lesser  power,  and  included  in  the 
greater,  except  as  to  the  franchises  of  the 
company.  Branch  v.  Atlantic  ^  G.  K.  Co., 
3  n\io</s(U.  S.)  481. 

An  alienation  of  a  franchise,  either  in 
whole  or  in  part,  may  be  made  whenever 
there  is  legislative  authority  for  it,  either 
expressed  or  implied.  So  authority  to  a 
company  to  transfer  "all  its  property, 
rinhis,  privileges,  and  franchises "  to  an- 
other company  includes  the  right  to  mort- 
gage it  to  the  other  company.  East  Boston 
Freight  R.  Co.  v.  Eastern  A\  Co.,  13  A/Un 
(Mass.)  422. 

A  company  authorized  by  a  provision  in 
its  charter  "to  acquire,  alien,  transfer,  and 
dispose  of  property  of  every  kind "  may 
mortgage  its  property.  The  power  to  sell 
always  includes  the  power  to  mortgage. 
McAllister  v.  Plant,  54  Miss.  106,  17  Am. 
Ky.  Kep.  389. 

The  statutory  power  to  borrow  money 
and  secure  loans  cannot  be  considered  as 
implying  that  a  company's  powers  to  mort- 
gage are  to  be  limited  to  that  object;  and 
therefore  a  mortgage  executed  by  a  com- 
pany on  a  portion  of  its  road  in  favor  of  a 
trustee,  being  given  within  the  scope  of  the 
powers  conferred  upon  the  company'  to 
"alienate,  sell,  or  dispose  "  of  lands  for  the 
purpose  of  constructing  and  working  a 
railway,  was  not  ultra  vires.  Bickford  v. 
Grand  Junction  R.  Co.,  i  Can,  Sup.  Ct.  696. 

8.  Statutory  power  iiuist  be  strictly 
pursiiert.— A  provision  in  a  charter  that  a 
company  might  mortgage  its  property  to 
complete  its  road  gives  no  power  to  mort- 
gage the  road  after  its  completion  for  other 
purposes.  East  Tenn.,  V.  &*  G.  A".  Co.  v. 
Frasier,  139  U.  S.  288.  11  Sup.  Ct.  Rep, 
517  ;  affirming  40  Am.  &>  Eng.  R,  Cas.  358, 
88  Tcnn.  138,  12  .S'.  U^.  Rep.  537. 

A  provision  in  a  charter  authorizing  a 
company  to  mortgage  its  real  estate  will 
not  be  construed  as  granting  the  implied 
power  to  mortgage  its  franchise.    Randolph 


V.  Wilmington  &*  R.  R.  Co.,  11  Phila.  (Pa,) 
502. 

Railway  and  other  corporations  can  only 
mortgage  their  personal  property  by  con- 
forming strictly  to  the  statute  in  reference 
to  chattel  mortgages,  and  for  the  same 
length  of  time.     Hunt  v.  Bullock,  23  ///.  320. 

IK  What  corporate  acts  are  within 
the  power.— A  company  having  a  general 
power  to  mortgage  the  whole  of  i's  road 
may  mortgage  any  part  of  it.  Puilan  v. 
Cincinnati  <&<•  C.  A.  L.  R.  Co.,  4  Biss.  ( I/.  S.) 
35.— Kkviewino  Williamson  v.  New  Albany 
&  S.  R.  Co.,  I  Biss.  198. 

Underastatute  requiring  the  concurrence 
of  the  holders  of  two  thirds  of  the  stock  of 
a  corporation  to  mortgaging  the  corporate 
property  for  a  loan  of  money,  to  be  expressed 
at  a  meeting  of  the  stockholders  called  by 
the  directors  for  that  purpose,  a  meeting  of 
the  directors,  who  are  the  only  stockholders 
except  one,  at  which  all  assent  to  the  propo- 
sition, is  in  efTect  a  meeting  of  the  stock- 
holders, and  the  act  of  the  directors  that  of 
the  stockholders.  The  requirement  of  the 
concurrence  of  the  holders  of  two  thirds  of 
the  stock  is  intended  for  the  protection  of 
the  stockholder,  and  is  a  matter  in  which 
the  public  has  no  interest.  Thomas  v.  Cit- 
izens' Norse  R,  Co,,  11  Am.  &^  Eng.  R.  Cas. 
306,  104  ///.  462.— Followed  in  St.  Louis, 
V.  &  T.  H.  R.  Co.  V.  Terre  Haute  &  I.  R. 
Co.,  33  Fed.  Rep.  440. 

A  corporation  which  is  authorized  to  hold 
lands  for  depots  a  id  storehouses,  as  well  as 
for  railroad  purposes,  and  to  allow  other 
railroad  corporations  to  establish  depots 
upon  its  premises  and  sell  or  lease  the  land 
necessary  therefor,  may  lawfully  mortgage 
lands  held  by  it,  and  not  required  for  rail- 
road purposes,  to  secure  bonds  issued  by 
said  corporation.  Hendee  v.  Pinkerton,  14 
Allen  {Mass.)  381. 

Where  a  statute  gives  every  railroad  cor- 
poration the  power  to  borrow  money  for 
completing,  furnishing,  and  operating  its 
road,  to  issue  bonds  for  any  amount  so 
borrowed,  and  to  mortgage  its  corporate 
property  and  franchises  to  secure  such 
bonds,  or  any  debt  contracted  for  such  pur- 
poses, a  railroad  company  may  issue  bonds, 
secured  by  a  mortgage,  "  to  consolidate  its 
funded  debt,  obtain  the  money  and  material 
necessary  for  perfecting  its  line  of  railway, 
enlarging  its  capacities,  and  extending  the 
facilities  thereof."  Thompson  v.  Erie  R. 
Co.;  42  How.  Pr.  {N.  Y.)  68. 


MORTGAGES,  10-12. 


4U 


Under  such  a  statute  a  railroad  corpora- 
tion may  pledge  its  bonds  for  moneys  loaned, 
and  also  as  security  for  a  precedent  debt 
incurred  for  moneys  borrowed  for  the  pur- 
poses specified.  Duncomb  v.  New  York, 
H.  &'N.  A\  Co.,4A»t.  &:  ling.  A'.  Las.  393, 
84  A',  y.  190;  reversing  23  Hun  291, — 
Quoted  in  Atwood  v.  Shenandoah  Valley 
R.  Co..  38  Am.  &  Eng.  R.  Cas.  534,  85  Va. 
966. 

Where  a  statute  gives  a  railway  company 
power  to  borrow  money  and  to  make  bonds 
or  debentures  for  securing  repayment,  the 
securities  on  which  the  company  has  power 
to  borrow  are  not  restricted  to  bonds  or  de- 
bentures. Commercial  Bank  v.  Great 
Western  R.  Co.,  13  L.  T.  105.  3  Moor^  P.  C. 
C,  .V.  .S'.  295. 

10.  What  corporate  acts  arc  in  ex- 
cess of  the  powertt  conferred. — The 
grant  to  a  railroad  company  of  the  general 
power  to  borrow  money  and  to  issue  bonds 
below  par  will  not  authorize  it  to  issue  irre- 
deemable bonds  at  a  rate  below  par,  entitling 
the  holder  to  a  contingent  sliare  in  the  prof- 
its, nor  to  execute  a  mortgage  to  secure  such 
bonds.  Ta}>lor  v.  Philadelphia  ^S^•  R,  R.  Co., 
3  Am.  &*  Eng.  R.  Cas.  163,  7  Fed.  Rep.  386. 
—Quoting  Thomas  v.  West  Jersey  R.  Co., 
loi  U.  S.  82. 

The  primary  object  in  granting  authority 
to  construct  a  railroad  being  the  benefit  to 
be  derived  by  the  public  from  the  use  of  the 
road,  a  power  to  mortgage  will  not  be  con- 
strued to  authorize  the  mortgagee  to  take 
up  and  sell  the  material  of  which  the  road 
is  made,  so  as  to  interfere  with  its  beneficial 
use  by  the  public.  Palmer  v.  Forbes,  23  ///. 
301. 

By  the  charter  of  a  railroad  it  was  em- 
powered to  borrow  money  necessary  to 
complete,  maintain,  and  work  the  road,  and 
"  to  hypothecate,  mortgage,  or  pledge  the 
lands,  tolls,  revenues,  and  otiier  property  of 
tlie  company  for  the  due  payment  of  said 
sums,  and  the  interest  thereon."  The 
company  executed  a  mortgage  on  its  prop- 
erly to  secure  collaterally  notes  given  by  its 
contractor  for  iron  used  in  constructing  the 
road.  Held,  that  the  mortgage  was  ultra 
vires  and  void.  Grand  Junction  R.  Co.  v. 
Bickford,  23  Grant's  Ch.  {U.  C.)  302. 

11.  Limitation  of  amount  of  in- 
debtedncNS  to  he  secured.— The  power 
of  a  railroad  company  incorporated  under 
the  Pa.  Act  of  April  4,  1868  (P.  L.  62),  to 
borrow  money  upon  a  mortgage  of  its  prop- 


erty and  franchises  for  the  construction  and 
equipment  of  its  road  is  limited  in  section 
8  of  said  act,  in  the  clearest  manner,  to 
twice  the  amount  of  its  paid-up  capital 
stock.  Such  a  mortgage,  given  for  a  greater 
amount  than  that  specified,  is  unauthorized, 
and  might  be  held  inoperative  and  void  as 
to  parties  having  the  right  to  complain ; 
but  as  between  bona  fide  holders  of  the 
mortgage  bonds  and  the  company  the 
mortgage  is  a  lien  upon  the  mortgaged 
property.  Fidelity  I.,  T.  &•  S.  D.  Co.  v. 
Western  Pa.  6-  5.  C.  R.  Co.,  138  Pa.  St. 
494,  21  Atl.  Rep.  21. 

Subsequent  creditors  of  the  company,  who 
became  such  with  notice  of  the  mortgage 
while  the  negotiation  of  the  bonds  was  in 
progress,  occupy  no  better  position  than  the 
company  itself,  and  cannot  set  up  its  fraud 
in  exceeding  the  authority  conferred  as  a 
defense  against  the  victims  of  that  fraud. 
Fidelity  I.,  T.  &*  S.  D.  Co.  v.  Western 
Pa.  <S-  5.  C.  R.  Co.,  138  Pa.  St.  494,  21  Atl. 
Rep.  21. 

The  provision  of  section  7,  artir  le  xvi.,  of 
the  constitution,  prohibiting  the  fictitious 
increase  of  corporate  indebtedness,  will  not 
apply  to  the  sale  of  mortgage  bonds  of  a 
railroad  company,  for  which  it  receives  tlie 
money  from  innocent  purchasers  at  par,  for 
construction  and  equipment ;  the  debt  is  not 
fictitious,  though  the  securities  may  turn 
out  to  be  largely  so.  Fidelity  /.,  T,  <S>» 
S.  D.  Co.  v.  Western  Pa.  &>  S.  C.  R.  Co., 
138  Pa.  St.  494,  21  Atl.  Rep.  21. 

II.  WHAT  FBOFESTT  MAT  BE  HOBTOAOED 
OB  COVEBED  BT  A  KOBTOAOE. 

I.  In  General. 

12.  Franchises,  generally.  —  Chap- 
ter 43  of  the  Iowa  Code  of  1851  conferred 
upon  railroad  corporations  organized  under 
its  provisions  the  power  to  encumber  their 
real  and  personal  property,  such  as  lands 
held  for  right  of  way,  depot  buildings,  roll- 
ing stock,  revenues,  and  the  like,  including 
the  future  earnings,  accessions, and  acquisi- 
tions of  their  respective  roads.  Quare, 
whether  the  franchise  of  a  railroad  corpora- 
tion may  be  pledged  by  mortgage  ?  Dunham 
V.  Isett,  1 5  Iowa  284. 

The  mortgage  of  a  "  railroad,"  with  all  its 
rights  and  privileges,  was  authorized  under 
3  resolution  of  its  board  of  directors,  which 
authorized  a  mortgage  of  ihe  road  and  "  its 
property,  etc."     As  there  was  nothing  to 


I 
I 


412 


MORTGAGES,  13,  14. 


'A. 


^  ,  "l 


which  the  phmse  "  etc.  "  could  liave  been 
designed  to  apply  except  the  franchises,  it 
must  be  regarded  as  having  been  used  to 
etiibrace  tlieni.  Bard^iown  St*  L.  A'.  Co.  v. 
Metcalfe,  4  Afetc.  (Ky.)  IQ9. 

If  a  railroad,  authorized  expressly  by  its 
charter  to  mortgage  its  road  and  other 
property,  but  witlioUv  express  authority  to 
mortgage  its  corporate  franchises,  makes  a 
mortgage  covering  both  its  railroad  and 
franchises,  the  validity  of  the  mortgage,  as 
to  the  railroad,  is  unafTected  by  the  inclu- 
sion of  the  corporate  franchises  therein, 
even  if  unauthorized.  Gloninger  v.  Pitts- 
bntgh  Sr'  C.  li.  Co.,  46  Am.  &•  Eng.  li.  Cas. 
276,  139  Pa.  St.  13,  21  Atl.  Jiep.  211. 

A  company  may  pledge  its  credit  for  the 
procurement  of  rails  for  its  road,  and  secure 
the  same  by  mortgage  of  its  road  and 
franchise ;  and  its  power  to  do  so  is  not  af- 
fected by  the  fact  that  its  title  to  the  whole 
of  the  road  is  not  perfect.  A  purchaser  at 
a  foteclosure  would  take  the  road  according 
to  the  rights  of  the  company  at  the  time  of 
the  foreclosure.  Miller  v.  Rutland  &*  W. 
li.  Co.,  36  Vt.  452.— Quoting  Holroyd  v. 
Marshall,  9  Jur.  N.  S.  213.— QUOTED  IN 
Vermont  &  C.  R.  Co.  f.  Vermont  C.  R.  Co., 
50  Vt.  500. 

A  corporation  had  power  to  borrow  money 
not  exceeding  its  capital  stock,  and  to  exe- 
cute bonds  therefor,  secured  by  a  pledge  of 
the  property  and  income  of  the  company. 
A  subsequent  grant  of  a  like  power,  and  the 
authority  to  pledge,  was  exoressed  to  be  by 
"  mortgage  or  otherwise,  , ..  >  entire  road, 
fixtures,  and  equipments,  with  all  the  ap- 
purtenances, income,  and  resources  there- 
of." Held:  (i)  that  the  company  could 
not  mortgage  the  franchise  to  be  a  corpora- 
tion, appertaining  to  the  individual  members 
of  the  corporation,  but  could  mortgage  the 
franrhise  to  maintain  a  railroad,  and  receive 
compensation  for  the  transportation  of  per- 
sons and  property,  and  the  property  con- 
nected with  the  railroad  and  the  use  of  its 
franchise,  whether  real  or  personal,  to  be 
subsequently  acquired  ;  (2)  that  the  power 
of  eminent  domain  was  not  transferable, 
and  that  the  mortgage  of  the  company 
could  give  no  right  to  the  exercise  of  such 
a  power  which  the  provisions  of  the  gen- 
eral law  on  the  subject  did  not  authorize; 
{3)  that  the  execution  of  a  mortgage  by  the 
company,  under  such  special  power,  could 
give  no  exemption  of  its  personal  property 
from  a  liability  which  might  be  otherwise 


created  by  its  own  act  or  a  judicial  proceed- 
ing that  the  execution  of  a  like  mortgage 
upon  personal  property  by  an  individual 
would  not  create.  Coe  v.  Columbus,  P.  &* 
I.  A'.  Co  ,  \o  Ohio  St.  372.— Quoting  Piatt 
V.  New  York  &  B.  R.  Co.,  26  Conn.  544. 

13.  Franchise  to  be  a  corporation. 
— The  mortgage  by  a  railroad  company  of 
its  road  and  franchise,  as  a  security  for  debt, 
does  not  convey  its  corporate  existence  or 
its  general  corporate  powers,  but  only  the 
franchise  ne(.:'ssnry  to  make  the  conveyance 
beneficial  to  the  grantees,  to  maintain  and 
manage  the  railroad,  and  receive  the  profits 
thereof  for  their  own  benefit.  Eldridge  v. 
Smith,  34  Vt.  484. — Reviewed  in  Meyer 
V.  Johnston,  53  Ala.  237. — Meyer  v.  Johnston, 
53  Ala.  237,  15  Am.  Ky.  Rep.  467. 

The  charter  authorized  the  company  to 
pledge  "  its  property  and  profits."  The 
deed  of  mortgage  conveyed  "  all  the  present 
and  future-to-be-acquired  property  of  the 
co'npany,  and  all  its  estates  and  franchises, 
that  is  to  say,"  and  then  followed  an  enu- 
meration of  the  property  and  rights  intended 
to  be  conveyed.  Held:  (i)  that  this  enu- 
meration limited  and  explained  the  previous 
words,  and  brought  the  ternis  of  the  deed 
within  the  limits  of  the  legislative  authority; 
(2)  that,  if  it  were  construed  otherwise,  as 
intending  to  convey  the  franchise  to  be  a 
corporation,  while  in  that  respect  it  would 
be  inoperative,  it  would  not,  for  that  reason, 
be  entirely  void,  but  would  operate  to  con- 
vey the  property  of  the  company.  Butler 
V.  Rahm,  46  Md.  541,  18  Am.  Ry.  Rep. 
86. 

14.  Real  property,  generally.— A 
railroad  mortgage  conveyed  several  classes 
of  property,  mostly  real  estate,  specifically 
de.scribing  each,  and  "  all  other  property  " 
owned  by  the  company  in  certain  states. 
Held,  that  the  words  "  all  other  property  ' 
did  not  operate  to  include  in  the  mortgage 
lands  not  specifically  described.  Alabama 
v.  Montague,  117  U.  S.  602,  6  Sup.  Ct.  Rep. 
911.— Followed  in  Alabama  r/.  Montague, 
117  U.S.  611. 

A  mortgage  executed  by  a  railway  com- 
pany assigning  "  to  A.,  his  executors,  ad- 
ministrators, and  assigns,  the  undertaking, 
and  all  and  singular  the  rates,  tolls,  and 
all  the  estate,  right,  title,  and  interest  of, 
in,  and  to  the  same,"  does  not  pass  any  of 
the  company's  lands.  Myatt  v.  St.  Helen's 
&>  R.  G.  R.  Co.,  \  G.&'  D.  663,  2  Railiv.  Cas. 
756,  2  Q.  B.  364,  6  Jur.  641. 


■m 


mmmmm 


MORTGAGES,  15-19. 


413 


15.  Right  of  way.— The  right  of  way 
nf  a  horse  railror.d  companyin  a  public  street 
is  ail  incurpureal  hereditament,  and  may  be 
iiu)rt<;aged  by  the  company.  Hovdman  v. 
K.insas  City  Horse  R.  Co.,  20  ^m.  &-  En^. 
K.  Ciis.  17,  79  Mo.  632. 

Where  a  landowner  conveys  a  right  of 
way  to  a  company  in  consideration  that  it 
will  locate  and  construct  a  road  thereon, 
such  grant  constitutes  an  easement  which 
may  be  assigned  or  conveyed  by  niortgage ; 
and  it  will  pass  to  a  purchaser  under  a  fore- 
closure sale,  and  embrace  ail  the  rights  of 
tiie  original  company,  althougii  tlie  road 
has  not  been  built.  Columbus,  //.  &*  G.  R. 
Co.  V.  Braden,  no  Ind.  558,  9  West.  Rep. 
193,  II  W  E.  Rep.  357.— Reviewing  Ingalls 
V.  Hyers.  94  Ind.  134. 

lO.  Track,  aud  luaterials  therefor. 
— A  provision  in  a  railroad  mortgage  con- 
veying all  the  company's  real  and  personal 
property  "  used,  or  intended  to  be  used,  in 
connection  with,  or  for,  the  purpose  of  such 
railroad  "  includes  rails,  fishplates,  and  bolts 
purchased  for  the  road,  but  not  yet  actually 
used  in  it's  structure,  and  is  included  in  a 
decree  directing  a  sale  of  the  mortgaged 
property.  Farmer;'  L.  &•  T.  Co.  v.  San 
Diego  Street-Car  Co.,  49  Fed.  Rep.  188. 

Neither  the  mortgagee  of  a  railroad,  nor 
the  purchaser  under  a  foreclosure  of  the 
mortgage,  acquires  any  lien  upon  or  title  to 
a  side  track  built  by  the  company  upon 
adjoining  land  under  an  agreement  that  it 
is  to  become  the  property  of  the  landowner. 
S/iflon  V.  Chicago  <S-  W.  M.  R.  Co.,  86  Mic/i. 
309,  49  N.   W.  Rep.  35. 

.A  company  has  no  right  to  take  up  its 
mortgaged  track,  though  the  road  be  not 
self-sustaining,  and  the  object  be  to  sell  the 
materials  and  appropriate  the  proceeds  to- 
wards liquidating  the  mortg..ge  debt.  Watt 
V.  Hestonville,  M.  &*  F.  Pass.  R.  Co.,  1 
lUnvs.  (Pa.)  418. 

1  7.  Terminal  facilioies.— A  company 
incorporated  to  construct  a  railroad  between 
two  cities  named  as  its  termini  gave  a 
mortgage  upon  its  line  of  road  constructed, 
or  to  be  constructed,  between  the  named 
termini,  together  with  all  the  stations,  depot 
grounds,  engine  houses,  machine  shops, 
buildings,  and  erections  appertaining  to  said 
railroad,  or  which  might  thereafter  apper- 
tain thereto.  Held,  that  the  mortgage  cre-> 
ated  a  lien  upon  the  terminal  facilities  of  the 
railroad  in  the  cities  named  as  its  termini, 
and  was  not  limited  to  so  much  of  the  road 


as  was  found  between  the  city  limits  of  those 
places.  Central  Trust  Co.  v.  Kneeland,  46 
Atn.  &•  Eng.  R.  Cus.  268,  138  U.  S.  414,  11 
Sup.  Ct.  Rep.  357.— DiSTiNGUiSHiNO  Will- 
iamson V.  New  Jersey  Southern  R.  Co.,  28 
N.  J.  Eq.  277,  29  N.  J.  Eq.  316.  Follow- 
ing Pennock  v.  Coe,  23  How.  (U.  S.)  117; 
Dunham  v.  Cincinnati,  P.  &  C.  R.  C<j. ,  i 
Wall.  (U.  S.)  254  :  Galveston,  H.  &  H.  R. 
Co.  V.  Cowdrey,  11  Wall.  459;  Thompson 
V.  White  Water  Valley  R.  Co.,  132  U.  S.  68  ; 
Toledo,  D.  &  B,  R.  Co.  v.  Hamilton,  134 
U.  S.  296. 

18.  Property  lying  in  two  or  more 
counties.  —  It  is  competent  for  a  state 
legislature  to  pass  an  act  providing  that 
mortgages  of  lands  in  more  than  one  county 
shall  be  void.  Farmers'  L,  &>  T.  Co.  v. 
Oregon  &^  C.  R.  Co.,  11  Sawy.  {U.  S.)  1 1 5,  24 
Fed,  Rep.  407. 

19.  Property  in  foreign  jurisdic- 
tion.— Where  real  estate  conveyed  to  a 
foreign  railroad  company  is  attached  in  W. 
Va.  for  the  debts  of  said  company,  and  a 
defendant  claims  the  property  under  a  deed 
ordered  to  be  made  under  proceedings  in  a 
foreign  court  to  foreclose  a  mortgage  on  the 
"  railroad,"  and  the  pleadings  in  said  cause 
do  not  assert  that  the  mortgage  covers  the 
property  \\\  this  state,  but  the  court  without 
passing  on  that  question  orders  the  trustee 
to  sell  "  all  the  right,  title,  and  interest  of 
the  railroad  in  West  Virginia  which  passed 
under  said  mortgage,"  and  a  deed  was 
ordered  to  be  made  for  such  interest,  the 
courts  of  this  state,  without  reference  to  any 
conflict  of  jurisdiction,  are  left  free  to  de- 
cide whether  anything  passed  under  said 
mortgage.  Chapman  v.  Pittsburg  ^  S.  R. 
Co.,  26  W.   Va.  299. 

A  mortgage  by  a  Pennsylvania  company 
chartered  to  build  a  road  from  near  Pitts- 
burg, in  the  direction  of  Steubenville,  Ohio, 
to  the  Pennsylvania  state  line,  of  "the 
whole  of  its  railroad  together  with  the  lands, 
depots,  depot  grounds,  and  buildings  situ- 
ated thereon  between  and  at  the  termini  of 
its  railroads  at  the  city  of  Pittsburg  and 
the  boundary  line  of  the  state  of  West  Vir- 
ginia " —  held,  to  convey  no  property  in 
West  Virginia.  Chapman  v.  Pittsburg  &* 
S.  R.  Co.,  26  W.  Va.  299. 

Nor  would  the  clause  "  all  the  interest  of 
said  railroad  in  property  held  in  trust  for 
it  or  its  benefit,"  other  clauses  showing  that 
real  property  was  meant.  Chapman  v.  Pitts- 
burg <S«»  5.  R.  Co.,  26  W.  Va,  299 ;  adhered  to 


f. 


414 


MORTGAGES,  30. 


i  '^^ 


Ik.-. 


■   I"  • 


on  reargitment  in  26  W.  Va.  328.— Review- 
ing Philadelpliia,  W.  &  B.  R.  Co.  v.  Trimble, 
10  Wall.  (U.  S.)  367  ;  Coleman  v.  Manhattan 
Beach  Imp.  Co.,  94  N.  Y.  229. 

20.  Property  nut  necessary  or  not 
wsecl  for  purposes  of  road.— Where  a 
railroad  mortgage,  which  conveys,  in  general 
terms,  all  of  its  property  now  owned  and 
which  may  hereafter  be  acquired,  is  qualified 
by  expressions  such  as,  "  that  may  be  in- 
cluded in  the  location  of  said  railroad,"  or, 
"  used  as  part  of  said  railroad, "and  "necessary 
for  the  construction,  operation,  or  security 
thereof"  it  does  not  include  lands  not  neces- 
sary to  the  construction  and  operation  of 
tlifc  road,  but  purchased  for  the  purpose  of 
p.ocuring  a  cheaper  right  of  way,  and  with 
the  intention  of  selling  again  the  portion 
not  needed.  Boston  &>  N.  V.  A.  L.  R.  Co. 
V.  Coffin,  1 2  Am.  ^  Eng.  K.  Cas.  375,  50  Conn. 
150. 

And  lands  which  lie  outside  of  the  com- 
pany's right  of  way  and  are  not  needed  for 
the  use  of  the  road,  and  which  have  been 
omitted  by  mistake  from  a  deed  conveying 
lands  to  a  third  party,  will  not  be  covered 
by  the  mortgage,  but  may  be  decreed  to  be 
conveyed  to  said  third  party.  Boston  &^  N. 
Y.  A.  L.  R.  Co.  V.  Coffin,  12  Am.  <S-  Eng.  R. 
Cas.  375,  50  Conn.  150. 

But  the  above  mortgage  will  cover  lands 
purchased  after  it  is  made,  and  needed  for, 
and  used  in  connection  with,  the  road, 
though  the  legal  title  is  in  the  president  and 
treasurer  of  the  company  in  trust  for  the 
company,  such  as  lands  used  for  depots,  etc. 
Bosfon  <S-  N.  V.  A.  L.  R.  Co.  v.  Coffin,  12 
Am.  &>  Eng.  R.  Cas.  375,  50  Conn.  1 50. 

The  power  to  mortgage  conferred  by  Ind. 
Act  of  1851  (Local  Laws  1851,  p.  43)  has 
reference  only  to  such  lands  and  property  as 
the  company  can  lawfully  acquire,  and  can- 
not therefore  include  such  as  are  not  neces- 
sary to  the  purposes  of  the  road.  Taber  v. 
Cincinnati,  L.  &*  C.  R.  Co.,  1 5  /mi.  459. 

In  construing  a  mortgage  given  by  a  cor- 
poration upon  its  railroad  which  minutely 
designates  the  line  of  road,  specifies  all  the 
lands,  of  an  average  width  of  sixty  feet,  upon 
which  the  road  is  located  necessary  for  the 
use  and  operation  of  the  road,  its  rolling 
stock,  superstructures  of  r  -ery  kind,  and 
then  adds,  "  and  all  rights,  privileges,  fran- 
chises, and  property  whatsoever  now  be- 
longing or  hereafter  to  belong  to  or  to  be 
acquired  by  said  party  of  the  first  part  "— 
Ae/(i,  that  it  should  be  construed  as  con- 


veying only  such  property  as  was  or  would 
be  employed  and  be  useful  or  necessary  in 
the  construction,  maintenance,  operation, 
preservation,  or  security  of  the  railroad 
mortgaged,  and  that  it  did  not  include  other 
property  owned  by  the  corporation  not  used, 
or  to  be  used,  in  connection  with  the  rail- 
road, in  promotion  of  the  direct  and  prox- 
imate purpose  of  its  construction.  State  v. 
G/enn,  18  Nev.  34,  i  Pac.  Rep.  186. 

A  mortgage  executed  by  a  railroad  com- 
pany on  "  the  road "  of  the  cotnpany, 
"  whether  made  or  to  be  made,  acquired  or 
to  be  acquired,  and  all  property,  real  or  per- 
sonal," of  the  company,  "  whether  now 
owned  or  hereafter  to  be  acquired,  used,  or 
appropriated  for  the  operating  or  maintain- 
ing the  said  road,"  is  not  a  lien  upon  real 
estate  of  the  company,  then  owned  or  after- 
wards acquired,  which  has  not  been  used  or 
appropriated  for  operating  or  maintaining 
the  road.     Walsh  v.  Barton,  24  Ohio  St.  28. 

A  railroad  holding  town  lots  adjoining  its 
roadbed,  ostensibly  for  a  basin  to  connect 
with  river  navigation,  having  mortgaged  the 
entire  road  with  its  "corporate  privileges 
and  appurtenances,"  but  without  specific 
mention  of  the  lots,  became  embarrassed, 
and  the  mortgaged  property  was  sold.  The 
lots  were  again  sold  under  execution  against 
the  company  and  bought  by  plaintifTs  there- 
in. In  ejectment  by  them  against  the  pur- 
chasers under  the  mortgage,  the  jury  were 
instructed  that  if  the  lots  were  not  appur- 
tenant to  the  road,  and  essential  and  indis- 
pensably necessary  to  the  enjoyment  of  its 
franchises,  and  as  such  included  in  the 
mortgage,  plaintifTs  were  entitled  to  re- 
cover, referring  the  question  of  appurte- 
nancy  and  necessity  to  them  as  matters  of 
fact.  Held,  not  error.  Shamokin  Valley  R. 
Co.  v.  Livermore,  47  Pa.  St.  465. 

A  company  was  authorized  to  hold  so 
much  land,  not  above  five  acres  in  any  one 
place,  and  improvements  necessary  for 
water  stations,  etc.  It  purchased  land 
which  was  not  used  for  the  road,  and  mort- 
gaged all  its  property  and  franchises,  with 
the  right  to  maintain  possession  "according 
to  the  effect  and  meaning  "of  the  acts  of 
incorporation.  Held,  that  the  land  pur- 
chased was  not  included  in  the  mortgage. 
Youngtnan  v.  Elntira  &*  W.  R.  Co.,  65  Pa. 
St.  278. 

The  Vermont  Cent.  R.  Co.,  for  the  pur- 
pose of  securing  the  payment  of  its  bonds, 
conveyed  in  trust  and  mortgage  to  certain 


m  t 


MORTGAGES,  21-26. 


415 


persons  its  "  railroad  and  franchise,  and 
also  all  the  station  houses,  engine  houses, 
etc.,  and  other  appendages,  with  all  the 
lands  thereto  belonging  and  intended  for 
the  use  and  accommodation  of  said  road." 
//M;  (i)  tiiat  only  such  land  of  tlie  com- 
pany passed  by  this  conveyance,  as  was  so 
connected  with,  and  used  by  the  company 
for,  the  railroad  that  it  would  have  been 
authorized  to  take  it  compulsorily  under 
the  provisions  of  its  charter,  and  that,  if  it 
was  so  connected  and  used,  it  was  immate- 
rial whether  it  actually  was  taken  by  pro- 
ceedings t'tt  invitum  or  purchased  by  the 
company;  (2)  that  the  words  in  the  con- 
veyance, "intended  for  the  use  and  accom- 
modation of  said  road,"  applied  to  the 
intention  of  the  company  in  respect  to  the 
use  of  the  land  at  the  time  the  mortgage 
was  executed,  and  not  the  original  design 
of  the  company  when  it  made  the  purchase  ; 
(3)  that  such  mortgage  conveyed  the  full 
and  entire  surveyed  line  of  the  railroad  to 
its  whole  extent.  Eldridge  v.  Smith,  34  Vt. 
484. — Quoting  Seymour  v.  Canandaigua  & 
N.  F.  R.  Co.,  25  Barb.  (N.  Y.)  284.  Review- 
ing Vermoiit  C.  R.  Co.  v.  Burlington,  28 
Vt.  193. 

21.  Canal  boats.  —  A  railroad  mort- 
gage which  conveys  its  real  estate,  railroad, 
bridges,  ferries,  locomotives,  engines,  cars, 
teiulers,  shops,  tools,  and  machinery,  and 
"all  other  personal  property  whatever  in 
any  way  belonging  or  appertaining  to  the 
said  railroad,"  does  not  include  canal  boats 
purchased  with  the  corporate  funds,  and 
rnn  in  connection  with  the  railroad,  but  be- 
yond its  terminus.  Parish  v.  U'hee/er,  22 
i\.  V.  494.— Reviewed  in  New  Orleans 
Pac.  R.  Co.  V.  Parker,  143  U.  S.  42,  12  Sup. 
Ct.  Rei     <64. 

22.  ♦  M'  elevator.  —  Where  a  horse 
railroad  ei>  ered  upon  land  with  the  con- 
sent of  the  owner  (the  land  being  subject 
to  a  mortgage),  and  constructed  thereon,  at 
great  expense,  an  elevator  to  raise  its  cars 
from  the  bottom  to  the  top  of  a  hill — /lehf, 
that  the  elevator  was  subject  to  the  en- 
cumbrance of  the  mortgage,  and  that  the 
company  would  not  be  entitled  to  redeem 
tile  land  on  which  it  had  constructed  the 
elevator  by  paying  to  the  mortgagee  the 
value  of  the  land  at  the  time  when  the 
company  took  possession.  And  the  com- 
pany having  taken,  Pendente  lite,  proceed- 
ings to  condemn  the  land  under  its  char- 
ter, and  having  caused  the  commissioners 


to  appiaise  only  the  value  of  the  land 
witliout  the  improvements,  such  condem- 
nation, being  pendente  lite,  could  not  avail 
the  company,  as  against  the  right  of  the 
mortgagee  to  the  land  and  the  improve- 
ments. Booraem  v.  Wood,  27  iV.  /.  Eq. 
371 ;  reversed  in  28  N.  J.  Eq.  450,  14  Am.  Ry. 
Rep.  202.  —  Followed  on  other  point 
in  Mutual  Life  Ins.  Co.  v.  Easton  &  A.  R. 
Co.,  38  N.J.  Eq.  401. 

23.  Guaranties,  rent  cliargres,  etc. 
— An  agreement  of  one  company  to  make 
good  the  net  earnings  of  another  so  as  to 
meet  interest  on  its  bonds  is  not  covered 
by  a  mortgage  of  the  property  of  the  in» 
debted  company  given  to  secure  its  bonds. 
Metropolitan  Trust  Co.  v.  New  York,  L.  E. 
6-  W.  R.  Co.,  45  Hun  84,  9  N.  Y.  S.  R. 
415. 

Two  railroad  companies  entered  into  an 
agreement  which  was  called  a  lease,  but 
which  the  courts  construed  to  give  the  les- 
see tlie  ownership  of  the  entire  line  subject 
to  the  right  of  tlie  lessor  to  re-enter  upon 
default  of  payment  of  the  rent,  and  subject 
to  certain  rights  and  interests  of  the  mort- 
gage bondliolders.  Subsequently  the  roads 
consolidated,  and  issued  bonds  sf^^ured  by  a 
mortgage  on  the  road,  //eld,  that  the  mort- 
gage, as  to  the  lessor  company,  was  only 
on  the  rent  charge  reserved  on  the  road, 
and  it  had  a  right  to  change  the  security 
and  issue  bonds  and  execute  a  new  mort- 
gage, //asard  v.  Vermont  &-  C.  A'.  Co.,  12 
Am.  &>  Enff.  R.  Cas.  388,  17  Fed.  Rep.  753. 
—Following  Vermont  &  C.  R.  Co.  v. 
Vermont  C.  R.  Co.,  34  Vt.  i  ;  Langdon  v. 
Vermont  &  C.  R.  Co.,  54  Vt.  593. 

24.  Municipal  aid  bonds.  —  Under 
the  rule  that  the  whole  of  an  instrument 
should  be  construed  together,  and  not  de- 
tached parts,  a  clause  of  a  mortgage  con- 
veying all  the  "  property  "  of  a  railroad,  the 
word  "  property  "  being  followed  by  the  qual- 
ifying phrase  "  that  is  to  say,"  accompanied 
by  a  detailed  description  of  specific  things 
such  as  enter  into  the  construction  of  a 
railroad — held,  not  to  pass  county  bonds 
previously  granted  to  the  road  to  aid  in  its 
construction.  Smith  v.  McCullough,  3  Am. 
&*  Eng.  /i.  Cas.  159.  104  U.  S.  25.— Re- 
viewed IN  New  Orleans  Pac.  R.  Co.  v. 
Parker.  143  U.  S.  42.  12  Sup.  Ct.  Rep.  364. 

25.  Oflice  furniture,  and  other  per- 
sonal property. — Oflice  furniture,  suita- 
ble in  kind  and  of  n  necessary  amount, 
provided  for  the  use  of  the  employes  of  the 


416 


MORTGAGES,  2C-29. 


n>  t 


1^  ^ 


r;    i 


-f) 


company  in  the  perf(jrniance  of  their  daily 
duties,  as  well  as  for  the  directors  to  trans- 
act their  business,  is  covered  by  a  mortgage 
of  the  property  of  the  company;  and  at  the 
instance  of  the  trustee  will  be  protected  by 
injunction  against  the  attempts  of  a  judg- 
ment creditor  who  has  levied  thereon,  and 
threatens  to  sell  it,  when  it  appears  that 
the  other  mortgaged  property  would  be  in- 
sulficient  to  pay  in  full  the  mortgage  debt. 
Ludlow  V.  Hurdy  i  Disney  {0/iio)  552. 

A  provision  in  a  railroad  mortgage  whicli 
describes  the  property  conveyed  as  "  all  and 
singular  the  railways,  rails,  bridges,  station 
houses,  depots,  shops,  buildings,  tools,  cars, 
engines,  equipments,  machinery,  fuel,  ma- 
terials, privileges,  and  property,  real  or  per- 
sonal, belonging,  or  which  may  hereafter 
belong,  to  the  grantors  and  be  used  as  a  part 
of  said  railroad,  or  appertain  thereto,  or 
necessary  for  the  construction,  operation,  or 
security  thereof,  and  all  the  riglits  and 
franchises  of  said  company,  with  tlie  tolls, 
incomes,  issues,  and  profits  thereof,"  in- 
cludes a  quantity  of  office  furniture  in  one 
of  the  company's  offices.  Raymond  v. 
Clark,  \(i  Conn.  129.— QUOTING  Hudson  z/. 
Whiting,  17  Conn.  487  ;  Meyrick  v.  Meyrick, 
2  C.  &  J.  223;  Ringer  v.  Cann,  3  M.  &  W. 
343 ;  Jackson  v.  Stevens,  16  Johns.  (N,  Y.) 
no 

.K  mortgage  on  the  roadbed  of  the 
Omaha  Horse  R.  Co.  '*  now  or  hereafter 
to  be  constructed,  including  all  the  ties, 
iron,  side  tracks,  turntables,  and  other  ap- 
purtenances belonging  to  or  connected 
therewith;  also  all  one-horse  cars  of  the 
s;iid  company,  either  now  owned  or  here- 
after to  be  acquired  by  said  company; 
also  the  franchise  of  said  company,  with 
all  the  rights,  privileges,  and  property  per- 
taining thereto  "^<onstrued  not  to  include 
certain  personal  property.  Millard  v.  Bur- 
ley,  13  Neb.  259,  13  N.  IV.  Rep.  279. 

26.  Property  of  consolidating  road. 
— //  seems  that  a  consolidated  railroad  com- 
pany may  assume  debts  owed  by  one  of 
the  companies,  and  secure  it  by  mortgage. 
Wright  v.  Bundy,  1 1  Ind.  398.  See  also 
Meyer  v.  Johnston,  8  Am.  &•  Eng.  R.  Cas. 
584,  64  Ala.  603. 

27.  Subscriptions  to  stock.— An  un- 
paid balance  of  a  subscription  to  the  capi- 
tal stock  of  a  railroad  corporation  is  not 
covered  by  a  mortgage  of  a  railroad  con- 
structed and  to  be  constructed,  and  of  its 
right  of  way,  machinery,  implements,  and 


other  property,  chattels,  and  things  pertain- 
ing to  the  railroad,  and  of  its  charter  rights, 
privileges,  and  franchises,  and  also  of  all  its 
estate,  right,  title,  interest,  properly  and 
possession,  claims  and  demands  whatso- 
ever.    Dean  v.  Biggs,  25  ////«  (A'.   1'.)  122. 

28.  Interest  ot  niort{j:iiK<*i'sisstocli- 
liolder  in  unotlier  road.— A  railroad 
company  which  owns  stock  in  a  corpora- 
tion promoted  by  several  railroad  compa- 
nies to  construct  an  elevator  to  be  con- 
nected with  their  respective  roads  has  no 
specific  interest  in  the  elevator  constructed 
by  such  corporation  which  it  can  mortgage. 
The  interest  of  the  railroad  company  in  the 
elevator  is  that  of  a  mere  stockholder  of  the 
company  which  constructed  it.  Ownership 
of  stock  in  a  corporation  should  not  be  con- 
founded with  ownership  of  its  property. 
Humphreys  v.  McKissock,  46  Am.  <S«»  Eiig. 
R.  Cas.  261,  140  (/.  S.  304,   II  Sup.  Ct.  Rep. 

779- 

Where  a  railroad  company  mortgages  its 
road  and  the  "  appurtenances  "  thereunto 
belonging,  such  mortgage  does  not  pass  an 
interest  of  the  railroad  company  as  a  stock- 
holder of  a  corporation  owning  an  elevator 
constructed  on  land  not  belonging  to  the 
railroad  company,  and  situated  at  some  dis- 
tance from  its  road  ;  nor  does  the  stock  of 
the  elevator  company  pass  to  the  mortgagee 
under  such  mortgage.  Humphreys  v.  Mc- 
Kissock, 46  Am.  &>  Eng.  R.  Cas.  261,  140 
U.  S.  304,  II  Sup.  Ct.  Rep.  779.— Dkstin- 
GUISHED  IN  Omaha  &  St.  L.  R.  Co.  v.  Wa- 
bash, St.  L.  &  P.  R.  Co.,  50  Am.  &  Eng. 
R.  Cas.  700,  108  Mo.  298.  Reviewed  in 
New  Orleans  Pac.  R.  Co.  v.  Parker,  143  U. 
S.  42,  12  Sup.  Ct.  Rep.  364. 

2.   Tolls  and  Income. 

29.  Income,  g^enerally —  A  railroad 
mortgage  which  describes  the  property  con- 
veyed as  "  the  entire  works  and  effects  of 
the  company,  including  all  its  toils,  income, 
rents,  issues  and  profits,  and  alienable  fran- 
chises," only  includes  the  net  income  of  the 
road  after  payment  of  all  expenses,  interest 
on  debt  while  the  company  remains  in  pos- 
session, and  creation  of  a  sinking  func. 
Parkhurst  v.  Northern  C.  R.  Co.,  19  Md. 
472. 

The  general  rule  is  that  the  mortgagor 
has  a  right  to  the  earnings  and  profits  of 
the  mortgaged  property  until  he  is  inter- 
fered with  by  the  mortgagee  ;  but  it  is  com- 
petent for  the  parties  to  provide  in  the 


MORTGAGES,  30-32. 


417 


mortgage  that  future  earnings  sliall  l)c  held 
ill  equity  by  the  mortfjagee,  in  which  case 
the  piirty  receiving  it  will  hold  it  for  who- 
ever i;  entitled  thereto.  I'lillan  v.  Cincin- 
nati &•  C.  A.  L.   K.    Co.,    •)  Hiss.    (U.   S.) 

237- 

A  mortgagor  is  chargeable  with  the  in- 
come from  the  mortgaged  property  so  long 
•as  lie  remains  in  possession  and  oper- 
ates it;  and  an  otfer  in  open  court  to  sur- 
render the  property  to  the  mortgagee  will 
not  avoid  such  liability.  Pullan  v.  Cincin- 
nati &*  C.  A.  L.  A'.  Co.,  5  Biss.  (U.  S.)  237. 

A  railroad  company  which  has  paid  a 
hiijher  rate  of  interest  tHun  necessary  upon 
prior  encumbrances  cannot,  in  an  account- 
ing in  favor  of  income  bondholders,  cliarge 
tlie  (iilTerence  against  the  income,  when  the 
mortgage  securing  the  bonds  contains  ex- 
press provisions  against  sucii  application. 
Harry  v.  Missouri,  K.  &^  T.  K.  Co.,  36  Am. 
iT-  Kn^.  A'.  Cas.  332,  34  /•></.  A'cp.  829. — 
i)i.sriNGUi.SHiNO  Ames  7'.  New  Orleans,  M. 
&  T.  R.  Co..  2  Woods  (U.  S.)  206.  Quot- 
ing Claflin  V.  South  Carolina  K.  Co.,  4 
Hughes  (U.  S.)  12,  8  Fed.  Rep.  118. 

30.  Tolls. — A  mortgage  by, a  railroad 
company  does  not  necessarily  convey  with 
it  the  tolls  made  by  the  company  in  the  use 
of  it  before  possessit)n  taken  by  the  mort- 
gagee.    Grals  V.  Kcdii,  4  Z?.  Mon.  (Ky.)  178. 

The  mortgage  of  the  state  on  the  railroad 
in  this  case  did  not  embrace  either  the 
stock  paid  in  by  the  stockholders,  or  the 
tolls  collected  by  the  company  in  the  pos- 
session and  use  of  the  company.  Gratz  v. 
Redd,  4  //.  Mon.  (Ky.)   178. 

A  mortgage  of  the  entire  line  of  a  rail- 
road, with  all  the  tolls  and  revenue  thereof, 
covers  not  only  the  line  of  the  road,  but  all 
tile  rolling  stock  and  fixtures,  whether  mov- 
able or  immovable,  essential  to  the  produc- 
tion of  tolls  and  revenue.  State  v.  Northern 
C.  A'.  Co.,  18  Md.  193  — Rkvikwino  Seymour 
V.  Canandaigua  &  N.  F.  R  Co.,  25  F^arb.  (N. 
Y.)  309;  Farmers"  L.  &  T.  Co.  v.  Hendrick- 
son,  25  Barb.  484.— Reconcilku  in  Morgan 
V.  Donovan,  58  Ala.  241. 

Wliether  tlie  rights  of  a  corporation  to 
take  lands,  operating  liie  railway,  taking 
tolls,  etc.,  are  susceptible  of  alienation  by 
mortgage  in  Canada,  quare.  Bickford  v. 
Grand  Junction  li.  Co.,- 1   Can.  Sup,  Ct.  696. 

31.  Net  eariiiii{;N. — A  railroad  com- 
pany may  mortgage  its  future  net  earnings 
to  secure  the  prompt  payment  of  interest 

6  D.  R.  D.— 27. 


accruing  on  its  construction  bi>nds.  Jes- 
sup  v.  h'ridge,  11  lo^iui  572. 

A  mortgage  of  the  road,  and  of  the  pres- 
ent and  sul)sequently  acquired  property  of 
a  railroad  company,  executed  to  secure  the 
payment  of  its  bonds,  is,  while  it  retains 
possession,  a  prior  lien  upon  the  net  earn- 
ings of  the  road.  Addison  v.  Lewis,  9  Ant. 
&•  Eng.  R.  Cas.  702,  75   Va.  701. 

But  where  the  road  is  in  the  control  of 
the  court,  and  operated  by  a  receiver,  such 
earnings  are  at  the  disposal  of  the  chan- 
cellor, and  may  be  used  in  paying  such 
claims  as  are  deemed  to  have  superior  equi- 
ties. Hale  V.  Frost,  99  U.  S.  389. — DlSTIN- 
c.LiSHKD  IN  American  L.  &  T.  Co.  v.  East 
&  \V.  R.  Co.,  46  Fed.  Rep.  101. 

32.  Claims  lor  carrying  the  mails. 
— A  company  mortgaged  "all  its  railroad, 
with  its  superstructure,  track,  and  all  other 
appurtenances  made,  or  to  be  made,  with 
all  its  rigiits  of  way,  including  depots,  etc., 
and  the  lands  on  which  they  were  built," 
and  "  all  the  franchises,  privileges,  and 
rights  of  the  railroad  company  in  or  to  the 
same,"  it  being  stipulated  that  nothing 
therein  should  prevent  the  company  from 
collecting  money  due  it  for  stock,  subscrip- 
tions, or  otherwise,  "  provided  no  default 
should  have  been  made  in  the  payment  of 
the  principal  or  interest  of  the  bonds 
secured  by  such  mortgages."  Afterwards 
the  directors  voted  that  the  future  income 
should  be  applied  to  pay  the  running  ex- 
penses and  repairs  of  the  road,  and  next  to 
the  payment  of  a  portion  of  the  bonds. 
Afterwards,  default  having  been  made  on 
the  payment  of  the  interest  on  the  bonds, 
the  company  surrendered  to  the  mortgagees, 
describing  the  property  as  in  tiie  mortgage, 
the  mortgagees  agreeing  to  apply  the  in- 
come to  the  payment  of  the  operatives,  and 
then  to  taxes  and  liens  taking  precedence  f>f 
the  mortgage  bonds,  and  to  advance  money 
to  complete  the  road  up  to  a  certain  point, 
and  to  postpone  the  interest  on  the  bonds 
until  the  advances  so  made  should  be 
refunded.  At  a  still  later  date  the  road 
assigned  to  C. ,  for  services  rendered  by  him 
before  the  date  of  the  surrender,  the 
amount  then  due  under  a  contract  for  car- 
rying the  United  States  mail.  Held,  that 
neither  the  mortgage  nor  the  deed  of  sur- 
render passed  the  claim  assigned  to  C. 
Farmers'  L.  &•  T.  Co.  v.  Cary,  13  Wis.  1 10. — 
Following  Farmers'  L.  &  T.  Co.  v.Qom- 


I 
§ 


418 


MORTGAGES,  33-35. 


iM* 


3-^1* 


( t, 


■  t 


mercial   Rank,    ii    Wis.   207;   Dinsmore  v. 
Racine  &  M.  R.  Co.,  12  Wis.  649. 

33.  31oiu'5-  earned  under  coiitruet 
with  express  eoiiipaiiy.— A  mortgage 
by  a  railroad  company  of  "  all  its  right, 
title,  and  interest  in  and  to  all  and  singular 
its  property,  real  and  personal,  of  whatever 
nature  and  ticscription,  now  possessed  or  to 
be  hereafter  acquired,  including  all  its 
riijhls,  privileges,  franchises,  and  ease- 
ments," cannot  be  regarded  at  law  as  in- 
cluding money  earned  by  tiie  road  in  icr- 
rying  freight  for  an  express  compai. /  unc 
a  contract  entered  into  by  the  express  co 
pany  after  the  mortgage  was  made.  Uov 
dues  it  make  any  difference  that  the  mortga- 
gees took  possession  of  the  road  and  Ic 
maiided  the  money  of  the  express  company 
while  unpaid.  Emerson  v.  European  &*  N. 
A.  /v'.  Co.,  67  xMe.  387. 

The  mortgagees  would  be  entitled  to  so 
nmch  as  was  earned  under  the  contract  after 
Ihey  took  possession  of  the  road ;  and 
possession  having  been  taken  after  the  ser- 
vices were  commenced  and  before  they  were 
completed,  for  which  an  instalment  would 
be  due  from  the  express  company,  the  pay- 
ments afterwards  due  could  be  apportioned 
between  the  railroad  corporation  and  its 
mortgagees.  Emerson  v.  European  &*  N. 
A.  R.  Co.,  67  Me.  387. 

34.  Steps  requisite  to  entitle 
niortKfiivree  to  tolls,  income,,  etc.— 
Mortgagees  having  the  right  to  take  posses- 
sion of  and  operate  a  railroad  in  default  of 
payment  of  interest,  and  to  receive  the  tolls, 
incomes,  and  earnings,  must  take  the  neces- 
sary steps  as  prescribed  in  the  mortgage  to 
entitle  themselves  to  such  tolls,  incomes, 
and  earnings  by  virtue  of  the  mere  fact  that 
they  are  mortgagees.  Newport  6-»  C.  Bridge 
Co.  V.  Douglass,  12  Busk  {Kv.)  673,  18  Am. 
By.  Bep.  221. 

The  mortgagee  of  a  railroad  can  demand 
the  rents,  profits,  etc.,  as  a  legal  right  only 
in  virtue  of  an  express  contract,  and  this  he 
must  do  in  the  mode  and  manner  provided 
by  such  contract.  Douglass  v.  Cline,  1 2  Bush 
(Kv.)  608,  18  Am.  By.  Bep.  273 —Quoting 
Ellis  7A  Boston,  H.  &  E.  R.  Co.,  107  Mass.  i. 

A  mortgagee  of  a  railroad  who  has  no 
specific  pledge  of  the  rents  and  profits  of 
the  mortgaged  premises  cannot  claim  them 
as  a  legal  incident  to,  or  a  legal  right  grow- 
ing out  of,  his  mortgage.  Douglass  v.  Cline, 
\2  Bush  (Ky.)  608.  18  Am.  By.  Bep.  273. 

Where  a    railroad  mortgage  covers  in- 


come, the  mortgagor  is  not  Dound  to 
account  to  the  mortgagee  for  earnings  while 
the  property  is  in  his  possession  until  a  de- 
mand is  made  therefor,  or  for  a  surrender  of 
possession  under  the  mortgage ;  but  the 
commencementof  a  suit  in  equity  to  enforce 
a  surrender  of  possession  to  the  trustees 
under  the  mortgage  in  accordance  with  its 
terms  is  a  demand  for  possession,  and  if  the 
trustees  are  then  entitled  to  possession  the 
company  must  account  from  that  time. 
f\>w  V.  Memphis  &-  L.  B.  B.  Co.,  33  Am. 
:  Eng.  B.  Cas.  12,  124  U.  S.  652,  8  Sup.  Ct. 
F  673  ;  reversing  20  Fed.  Bep.  768. —  FoL- 
i.oWKD  IN  Mercantile  Trust  Co.  z/.  Missouri, 
K.  &  T.  R.  Co.,  36  Am.  &  Eng.  R.  Cas.  259, 
■^.6  Fed.  ??<'p.  221. 

Undvi  .linn.  Gen.  St.  of  1878,  ch.  34, 
§  70,  a  raiUv.iy  c  ompany  may,  in  a  mortgage 
executed  by  it,  pledge  the  income  of  the 
property,  and  to  make  such  pledge  effectual 
may  stipulate  in  the  mortgage  that  upon 
default  the  trustee  named  in  the  mortgage 
may  take  possession,  operate  the  railway, 
and  receive  its  earnings.  Gen.  St.  1878,  ch. 
75,  §  29,  does  not  apply  to  such  a  mortgage. 
Seibert  v.  Minneapolis  &*  S/.  L.  B.  Co.,  52 
Minn.  246,  53  N.   \V.  Bep,  11 51. 

Under  such  a  stipulation  the  trustee  may 
upon  default,  without  bringing  an  action  to 
foreclose,  take  possession,  and  if  he  be  pre- 
vented may  have  an  action  to  be  put  in 
possession.  Seibert  v.  Minneapolis  &*  St, 
L.  B.  Co.,  52  Mittn.  246,  53  N.  W.  Bep. 
1151. 

Where  the  trustee  in  the  junior  of  a  series 
of  such  mortgages,  each  containing  such  a 
pledge  and  .stipulation,  brings  an  action  to 
foreclose,  making  the  prior  mortgagees  par- 
ties defendant,  and  obtains  the  appointment 
of  a  receiver  to  take  possession  of  and  oper- 
ate the  railroad  and  receive  its  earnings,  the 
senior  mortgagees  may  apply  to  the  court 
to  have  the  receiver  hold  for  and  pay  to 
them  so  much  of  the  net  earnings  as  is  cov- 
ered by  their  mortgages,  and  are  thereupon 
entitled  to  receive  the  same.  Seibert  v. 
Minneapolis  &*  St.  L.  B.  Co,,  52  Minn.  246, 
53  N.  IV.  Bep.  II 5 1. 

3.  After-acquired  Property. 

35.  Power  to  mortgage  after-ac- 
quired property,  generally.  —  In   the 

absence  of  a  charter  restriction, a  railroad  cor- 
poration may  take  and  hold  real  estate  not 
actually  used  for  the  construction  of  the  road, 
either  by  grantor  subscription  to  the  capital 


tit 


t%- 


,  -■■'.fS/.'W 


MORTGAGES,  36. 


419 


stock,  to  be  utilized  by  a  sale,  or  mortgage,  or 
otiierwise,  as  the  interest  of  the  company 
may  require;  and  wiiere  a  company  issues 
its  mortgaged  bonds  to  raise  money  to  con- 
struct its  road,  it  may  use  part  of  the  bonds 
in  acquiring  lands,  including  the  lands  in 
tlie  mortgage  as  further  security  for  all  the 
bonds.  Blackburn  v,  Selma,  M.  &•  M.  A'. 
Co.,  2  Flipp.  {U.S.)iii. 

Where  a  company  is  authorized  to  borrow 
money  and  mortgage  the  whole  or  any  part 
of  its  road,  property,  or  income  then  exist- 
ing, or  thereafter  to  be  acquired,  the  com- 
pany may  not  only  mortgage  its  present 
l)ioperty  and  rights,  but  such  as  it  may 
tiiLTcafter  acquire,  and  such  after-acquired 
property  will  be  subject  to  be  sold  on  fore- 
closure ;  and  this  seems  to  be  the  rule, 
independent  of  the  authority  given  in  the 
charter.  Quincy  v.  Chicago,  B.  &*  Q.  R.  Co., 
94  ///  537.  Parker  v.  New  Orleans,  B.  K. 
&'  V.  R.  Co.,  33  Fed.  Rep.  693;  reversed  in 
143  U.  S.  42,  12  Sup.  Ct.  Rep.  364.  Ludlow 
V.  Ilurd,  I  Disney  (Ohio)  552.  Pierce  v. 
Milwaukee  &•  St.  P.  R.  Co.,  24  Wis.  551. 

The  New  Jersey  Southern  R.  Co.  (for- 
merly the  Raritan  &  Delaware  Bay  R.  Co.), 
under  the  chartered  powers  of  the  latter 
company  (N.  J.  Pamph.  Laws  1854,  530), 
to  wliich  it  succeeded,  had  power  to  mort- 
gage after-acquired  property.  Such  mort- 
gage covers  railroad  stock  (of  another  rail- 
road company)  subsequently  purchased  by 
the  mortgagors.  And  it  is  not  necessary 
to  its  validity,  as  to  the  stock,  that  it  should 
have  been  filed  in  accordance  with  the 
provisions  of  the  "act  concerning  chattel 
mortgages."  Such  mortgage,  even  if  the 
stock  is  within  the  act  concerning  chattel 
mortgages,  is,  as  to  the  stock,  good  as 
against  everybody  but  those  who  are  hin- 
dered or  defeated.  Williamson  v.  New 
Jersey  Southern  R.  Co.,  26  A^.  /.  Eq.  398. 

Where  a  mortgage  is  executed  under  the 
authority  of  N,  Y.  Gen.  Railroad  Act,  §  28, 
subd.  10.  authorizirtg  railroad  companies  to 
borrow  money  and  to  mortgage  their  cor- 
porate property  and  franchises,  and  em- 
braces all  of  the  company's  property,  fran- 
chises, rights,  and  interests,  acquired  and  to 
be  acquired,  the  validity  of  the  mortgage 
is  not  affected  by  the  fact  that  all  of  the 
right  of  way  had  not  been  acquired  when 
the  mortgage  was  recorded,  or  that  the  en- 
tire road  had  not  been  located, or,  if  located, 
it  was  afterwards  changed.      Seymour   v. 


Canandaigua  &*  N.  F.  R.  Co.,  14  How.  Pr. 
(.V.  Y.)  531,  21  Barb.  284. 

\  supplement  to  an  act  incorporating  a 
railroad  company  authorized  it  to  mortgage 
its  road,  and  any  real  or  personal  property 
belonging  to  it,  "  for  the  purpose  of  carrying 
out  the  privileges  granted  by  the  act  and 
the  several  supplements  thereto  incorporat- 
ing the  same."  Said  supplements,  and  later 
ones,  authorized  various  extensions  of  the 
railroad.  Held,  that  the  power  to  mortgage 
extended  to  future  extensions  of  the  rail- 
roa  1  subsequently  authorized,  and  all  other 
real  and  personal  estate  of  the  company, 
without  regard  to  the  time  of  acquisition  ; 
it  was  not  exiiausted  when  the  railroad,  as 
authorized  at  the  date  of  the  supplement, 
was  completed,  but  justified  a  mortgage  to 
carry  out  any  power  then  or  afterwards 
granted  to  the  company.  Gloninger  v. 
Pittsburgh  '&*  C.  R.  Co.,  46  Am.  &*  Eng.  R. 
Cas.  276,  139  Pa.  St.  13,  21  Atl.  Rep.  211. 

A  charter  provided  that  "  the  directors  of 
the  company  may,  from  time  to  time,  by 
deed,  subject  and  charge,  in  such  manner  as 
they  think  fit,  the  said  railroad  and  the 
future  lands,  goods,  and  other  property  and 
effects,  tolls,  income,  and  profits  whatsoever 
of  the  company."  Held  ,that  this  provision 
authorized  the  directors  to  mortgage,  from 
time  to  time,  property  after  it  was  acquired, 
but  not  to  mortgage  by  one  instrument 
both  existing  and  after-acquired  property. 
Lloyd  V.  European  &*  N.  A.  R.  Co.,  18  Ah'W 
Brun.  194. 

30.  What  after-acquired  property 
will  pass.*— (1)  In  general. — Where  a  com- 
pany mortgages  its  road,  as  constructed, 
and  to  be  constructed,  with  all  of  its  prop- 
erty now  owned,  or  that  may  be  hereafter 
owned,  the  mortgage  becomes  a  valid  lien 
upon  all  of  the  property  described  therein 
now  owned  or  subsequently  acquired  by 
the  company.  Seymour  v.  Canandaigua 
«&«•  A^.  F.  R.'  Co.,  14  ^ow.  Pr.  {N.  V.)  531, 
25  Barb.  284.  Meyer  v.  Johnston,  53  Ala. 
237,  15  Am.  Ry.  R^p.  467.  — REVIEWED  IN 
New  Orleans  Pac.  R.  Co.  v.  Parker,  143  U. 
S.  42,  12  Sup.  Ct.  Rep.  364. 

Where  a  mortgage  given  by  a  railroad 
company  contains  the  "  after-acquired  prop- 
erty "  clause,  such  mortgage  is  made  there- 

*  Property  that  may  be  included  in  railway 
mortgage,  inclnrling  after-acquired  property,  see 
notes,  4  Am.  &  Eng.R.  Cas.  511;  9L.  R.  A.  140. 


i'< 

i 


\  '■  '>%' 


';:& 


!|[ 


i! 


I 


h  i 


420 


MORTGAGES,  iiil. 


by  to  cover  not  only  property  tlien  owned 
by  the  company  and  described  in  it,  but 
also  property  coming  within  the  words  of 
the  description,  and  subsequently  acquired, 
whetlicr  by  legal  title  or  by  a  full  equitable 
title  ;  and  there  are  no  equities  to  set  aside 
this  rule.  Central  Trust  Co.  v.  Knceland,  46 
Am.  &*  En)(.  A'.  Cos.  268,  138  t/.  5.  414.  il 
Si/p.  Ct.  Rip.  357.— Followed  in  Augusta, 
T.  &  G.  R.  Co.  V.  Kittel.  5?  Fed.  Rep.  63, 
2  U.  S.  App.  409,  2  C.  C.  A.  615 ;  Brady  v. 
Johnson,  75  M(i,  445. 

Obviously  it  would  be  difficult,  if  not  im- 
practicable, for  a  railway  company  to  spe- 
citically  describe  future  property  that  it 
niiglit  acquire.  When  such  property  is 
mortgaged,  the  mortgage  attaches  to  prop- 
erty subsequently  acquired  as  if  it  had  been 
described  specifically  in  the  act;  it  is  en- 
titled to  the  same  effect  in  law  as  if  it  had 
l)een  a  judicial  mortgage.  Parker  v.  Neiu 
Orleans,  B.  R.  &*  V.  N.  Co.,  33  Fed.  Rep. 
693;  reversed  in  143  U.  S.  42,  12  Sup.  Ct. 
Rep.  364. 

Mortgages  of  railroad  companies  exe- 
cuted under  statutory  provisions  authorizing 
them  to  pledge  their  "  entire  roads,  fran- 
chises, fixtures,  and  equipments,  with  the 
income  and  resources  thereof,  together  with 
the  capital  stock,"  and  declaring  that  such 
mortgages  shall  be  "a good  and  substantial 
lien,  as  well  upon  the  personal  as  real  prop- 
erty of  the  company,"  where  they  contain 
apt  language  to  that  effect,  attach  to  and 
cover  future  acquisitions  of  property  for 
the  uses  of  the  road.  Coopers  s.  Wolf,  15 
Ohio  St.  523.— Following  Coe  v.  Colum- 
bus, P.  &  I.  R.  Co..  10  Ohio  St.  372. 

The  cast-off  articles,  fragments,  and  old 
materials  once  forming  part  of  a  road,  or 
used  in  its  operation,  still  continue  under  a 
mortgage  of  the  road,  if  a  proper  and  judi- 
cious management  of  the  road  requires 
that  they  should  be  recast  or  exchanged 
for  new  articles  for  the  uses  of  the  road. 
Coopers  v.  Wolf,  15  Ohio  St.  523. 

(2)  Illustrations. — A  company  executed  a 
mortgage  covering  its  road  "  as  said  road  is 
or  may  be  hereafter  constructed,  maintained, 
operated,  or  acquired,  together  with  all  the 
privileges,  rights,  franchises,  real  estate, 
right  of  way,  depots,  depot  grounds,  side 
tracks,  water  tanks,  engines,  cars,  and  other 
appurtenances  thereto  belonging."  Subse- 
quently by  consolidation  the  road  passed 
into  the  hands  of  another  company,  and  the 
consolidated  company  bought  a  lot  on  the 


line  of  the  road,  and  built  a  hotel  thereon, 
and  insured  it  for  the  benefit  "  of  the  parties 
interested,"  and  subsequently  it  was  de- 
stroyed by  fire.  Held,  that  the  hotel  was 
appurtenant  to  the  railroad,  and  that  the 
insurance  thereon  was  payable  to  the  re- 
ceiver of  the  original  road  for  the  benefit  of 
the  mortgagees.  United  States  Trust  Co. 
V.  Wabash,  St.  L.  &•  P.  R.  Co.,  32  Fed.  Rep. 
480. 

Where  a  charter  authorizes  a  company  to 
mortgage  its  property  to  raise  money  for 
the  construction,  equipment,  and  operation 
of  its  road,  and  it  executes  a  mortgage  of 
certain  specific  property,  "and  all  property, 
real  or  personal,  now  belonging,  or  that 
may  at  any  time  hereafter  belong,  to  said 
company,  and  to  be  used  as  a  part  of  said 
railroad,  and  be  appurtenant  thereto,  and 
necessary  for  the  construction  or  operation 
thereof,"  the  description  of  after-acquired 
property  is  sufficiently  definite,  and  the 
mortgage  creates  a  lien  upon  such  property 
as  the  company  may  thereafter  acquire  for 
the  use  of  the  road.  Buck  v.  Seymour,  46 
Conn.  156. —  Quoting  Rowan  v.  Sharps' 
Rifle  Mfg.  Co.,  29  Conn.  283.  Reviewing 
Walker  v.  Vaughn,  33  Conn.  577. 

Such  company  purchased  personal  prop- 
erty to  be  used  for  five  years  on  a  leased 
road,  and  then  on  its  own  road.  The  com- 
pany was  authorized  to  lease  "any  connect- 
ing road,"  but  at  the  time  of  the  lease  a 
short  space  was  open  between  the  two 
tracks,  which  was  afterwards  closed.  Held, 
that  this  did  not  prevent  the  mortgage  lien 
from  attaching  to  such  property  at  the  time 
of  the  purchase.  Buck  v.  Seymour,  46 
Conn.  156. 

In  pursuance  of  the  statute  the  mortgage 
trustees  took  possession  of  the  road,  and 
the  railroad  directors  surrendered  without 
reserve  the  mortgaged  property  to  the  com- 
pany by  a  written  declaration  that  they  sur- 
rendered all  the  mortgaged  property.  Held, 
that  the  surrender  was  a  constructive  deliv- 
ery of  the  after-acquired  property,  and  cre- 
ated a  lien  thereon  in  favor  of  the  bond- 
holders, even  if  the  mortgage  itself  was  not 
sufficient  to  create  a  lien.  Buck  v.  Seymour, 
46  Conn.  1 56. 

If  an  act  of  the  legislature  gives  a  railroad 
corporation  authority  to  issue  bonds  for  a 
loan  of  money,  and  for  security  to  make  a 
mortgage  to  trustees  of  all  the  property, 
and  all  the  rights,  franchises,  powers,  and 
privileges  of  the  corporation,  and  in  the 


MORTGAGES,  37. 


421 


mortgage  to  give  tlie  trustees  power,  on 
breach  of  the  condition,  to  sell  the  real  and 
personal  estate,  and  all  the  rights,  fran- 
cliises,  powers,  and  privileges  named  in  the 
mortgage,  by  a  deed  which  should  convey 
to  the  purchasers  all  the  rights,  franchises, 
powers,  and  privileges  which  the  corpora- 
tion possessed,  and  the  use  of  tiie  railroad, 
witii  all  its  property  and  rights  of  property, 
for  the  same  purposes  and  to  the  same  ex- 
tent that  the  corporation  could  use  the 
same  if  the  deeds  had  not  been  made,  sub- 
ject to  the  same  liability  as  to  the  use  of  ihe 
road  that  the  corporatioi;  would  have  been 
under  if  the  deed  had  not  been  made,  and 
the  corporation  issues  bonds  and  make  such 
a  mortgage,  the  trustees  will  hold  utider  it 
property  afterwards  acquired  by  the  road 
a^'aiiist  other  creditors  who  claim  same 
property  by  virtue  of  later  mortgages. 
I'ierce  v.  Emery,  32  N.  H.  484. — DlSAP- 
I'ROVKU  IN  Mississippi  Valley  Co.  v.  Chi- 
cago, St.  L.  &  N.  O.  R.  Co.,  2  Am.  &  Eng. 
R.  Cas.  414,  58  Miss.  896.  Reviewed  and 
DISTINGUI.SHED  IN  Dinsmore  v.  Racine  & 
M.  R.  Co.,  12  Wis.  649. 

Sucii  a  mortgage  is  in  substance  and  ef- 
fect a  conveyance  under  the  act  of  the  road 
and  corporation  as  an  entire  thing,  and  sub- 
sequently acquired  property  becomes  part 
of  the  original  subject  of  the  mortgage  by 
accession.  Pierce  v.  Emery,  32  N.  H.  484. 
—  Reviewing  VVillink  v.  Morris  C.  &  B. 
Co.,  4  N.J.  Eq.  377. 

A  statutory  railroad  mortgage  described 
the  property  conveyed  as  the  intended  rail- 
road, its  real  property,  carriages,  engines, 
and  other  property.  Held,  that  the  words 
"other  property  "  would  include  both  chat- 
tels and  real  property,  and  would  include 
iron  subsequently  purchased,  the  mortgage 
covering  both  present  and  after-acquired 
property.  Lanark  v.  Cameron,  9  U.  C.  C.  P. 
109. 

;i7.  What  nftcr-ncqiiircd  property 
will  not  pa.ss.— A  mortgage  of  property 
wiiicli  purports  to  act  ///  prascnti  is  void  as 
to  property  that  the  mortgagor  does  not 
then  own ;  but  a  mortgage  of  "  all  present 
and  future-to-be-acquired  property"  of  a 
railroad  is  valid,  and  the  mortgage  will  at- 
tach to  the  after-acquired  property.  Pennock 
V-  Coe,  23  Hinv.  (U.  S.)  1 17.— Followed  in 
Central  Trust  Co.  v.  Kneeland,  46  Am.  & 
Kng.  R.  Cas.  26S,  138  U.  S.  414;  Scott  v. 
Clint(m  &  S.  R.  Co..  6  Diss.  (U.  S.)  529. 

A  mortgage  of  the  property  of  a  railroad 


company  then  owned  and  such  as  might  be 
thereafter  acquired  will  not  include  as  part 
of  its  realty  telegraph  poles  and  wires  sub- 
sequently placed  on  the  right  of  way  by  a 
telegraph  company  under  a  contract  with 
the  railroad  company.  Western  Union  Tel. 
Co.  v.  Burlington  &*  S.  IV.  A'.  Co.,  3  J/r- 
Crary  (U.  S.)  130,  11  Eed.  Hep.  I. 

Where  a  company  executes  mortgages  on 
two  divisions  of  its  road  to  raise  money  to 
complete  it,  and  neither  of  the  mortgages 
purports  to  convey  materials  subsequently 
acquired,  except  when  they  become  a  part 
of  the  road,  or  were  used  in  operating  it, 
such  materials  will  not  be  included.  Farm- 
ers' L.  &*  T.  Co.  V.  Commercial  Bank,  15 
IVis.  424. 

After  such  company  had  executed  the 
first  mortgage  it  acquired  certain  chairs  for 
the  use  of  the  railroad,  which  it  had  in  pos- 
session, but  had  not  yet  put  in  place,  when 
it  executed  a  second  mortgage  to  other 
parties,  which  declared  it  to  be  subject  to 
the  lien  of  the  first  mortgage.  Held,  that 
the  company  was  not  estopped  from  deny- 
ing that  the  chairs  were  included  in  the 
first  mortgage  as  after-acquired  property. 
Farmers'  L.  &*  T.  Co.  v.  Commercial  Bank, 
15  Wis.  424. 

A  company  mortgaged  all  the  property 
which  it  then  possessed,  or  should  there- 
after acquire,  to  secure  its  bonds,  and  after- 
wards executed  a  lease,  to  which  the  mort- 
gagee was  not  a  party,  in  which  the  lessee 
agreed  to  pay  interest  on  the  bonds  as  it 
matured,  if  the  net  earnings  of  the  road 
should  not  be  sufficient  for  that  purpose. 
Held,  that  the  lease  was  not  "after-acquired 
property"  so  as  to  pass  under  a  foreclosure 
sale.  Moran  v.  Pittsburgh,  C.  &-  St.  L.  R. 
Co.,  32  Fed.  Rep.  878.— Distinguishing 
Pittsburg,  C.  &  St.  L.  R.  Co.  v.  Columbus, 
C.  &  I.  C.  R.  Co.,  8  Biss.  (U.  S.)  456. 

Where  a  railroad  company  by  virtue  of 
an  act  of  the  legislature  mortgaged  all  of 
the  property  then  owned  by  both  the  new 
and  the  old  portions  of  the  road — held,  that 
wood  subsequently  purchased  with  the 
earnings  and  for  the  use  of  the  whole  road 
would  not  pass  by  the  mortgage,  and  might 
therefore  be  attached.  Bath  v.  Miller,  53 
Me.  308. 

Certain  persons  were  "created  a  body 
corporate,  with  succession,  with  power  to 
acquire  and  convey  all  such  real  and  per- 
sonal estate  as  may  be  necessary  and  con- 
venient to  the  objects  (jf  the  incorporation." 


V-        'a 


i       1 


40. > 


MORTGAGES,  .38,  30. 


The  corporation  was  authorized  to  construct 
and  maintain  a  railroad  between  certain 
termini,  and  to  appropriate,  by  proper  pro- 
ceedings, lands  necessary  for"  its  railroad 
track.  Held:  (i)  that  under  these  general 
powers  the  corporation  had  no  power  to 
alienate  the  franchise  to  be  a  corporation, 
or  the  franchise  to  construct  and  maintain 
a  railroad,  and  receive  compensation  for  the 
transportation  of  persons  and  property,  nor 
any  interest  in  real  estate  acquired  and  held 
solely  and  exclusively  for  the  purpose  of  the 
exercise  of  such  franciiise;  (2)  that  after 
the  railroad  had  been  constructed  and  pre- 
pared for  use  things  requisite  for  that  use, 
such  as  locomotives,  cars,  and  the  like,  not 
affixed  to  the  land,  being  acquired  by  the 
corporation,  dre  to  be  regarded  as  personal 
properly,  subject  to  alienation  and  liable 
for  debts ;  (3)  that  the  corporation  could 
not  make  a  mortgage  of  any  property,  such 
as  the  above  described,  to  be  subsequently 
acquired,  so  as  to  give  it  validity,  in  other 
manner,  or  to  a  greater  extent,  than  an  in- 
dividual owner  of  personal  property.  Cot 
V.  Columbus,  P.  Sf  I.  R.  Co.,  10  Ohio  St.  372. 
—Quoted  in  Memphis  &  L.  R.  R.  Co.  v. 
Berry,  41  Ark.  436. 

38.  When  ai'ter-ncqiiii'cd  Iniul  will 
pass. — A  railroad  company  may  convey  by 
mortgage  property  to  be  afterwards  ac- 
quired, and  if  it  convey  land  to  whicli  it 
has  only  an  equitable  title,  but  to  which  it 
afterwards  acquires  the  legal  title,  that  title 
at  once  enures  to  the  grantee  or  mortgagee, 
both  by  the  express  words  of  the  ini,trument, 
at]d  by  the  statutory  words  Oi  warranty,  grant, 
bargain,  sell,  and  convey.  Swann  v.  Gaston, 
87  Ala.  569,  6  So.  Rep.  386.  Boston  <S-  N. 
v.  A.  L.  R.  Co.  V.  Coffin,  12  Am.  &*  Eng. 
R.  Cas.  375.  50  Conn.  150.  Hamlin  v.  Eu- 
ropean &^  N.  A.  R.  Co.,  4  Am.  &*  Eng.  R. 
Cas.  503,  72  A/e.  83. 

A  mortgage  executed  by  a  railroad  com- 
pany on  its  entire  line  of  road,  "  as  said 
railroad  now  is,  or  may  be  hereafter,  con- 
structed, maintained,  operated,  or  acquired, 
together  with  all  the  privileges,  rights, 
franchises,  real  estate,  right  of  way,  depots, 
depot  grounds,  side  tracks,  water  tanks,  en- 
gines, cars,  and  other  appurtenances  thereto 
belonging,"  covers  land  subsequently  pur- 
chased by  the  company  near  one  of  its 
depots,  and  a  hotel  erected  thereon  for  the 
purpose  of  an  eating  house  and  hotel,  to 
accommodate  the  company  s  employes  and 
passengers,  and  other  persons.     Omaha  &> 


St.  L.  R.  Co.  V.  IVadasA,  St.  L.  (S-  P.  R.  Co., 
50  .////.  ^  Eng.  R.  Cas.  700,  108  Mo.  298,  18 
,S'.  W.  Rep.  1 101. —Distinguishing  Hum- 
phreys V.  McKissock,46  Am.  &  Eng.  R.  Cas. 
261,  140  U.  S.  304. 

Where  a  company  mortgages  its  right  of 
way  then  owned  or  afterwards  acquired, 
and  all  stations  and  station  lands,  together 
with  its  franchise  and  personal  property, 
and  subsequently  two  individuals  purchase 
certain  lands  for  the  use  of  the  company 
for  depot  grounds,  and  assign  their  contract 
of  sale  to  the  company,  which  takes  pos- 
session and  pays  a  part  of  the  purchase 
money,  the  lien  of  the  mortgage  attaches  to 
such  lands  as  soon  as  the  interest  of  the 
company  is  acquired,  and  such  lien  can- 
not be  impaired  by  subsequent  alienation. 
Farmers'  L.  &*  T.  Co.  v.  Fisher,  17  tTis.  114. 

And  in  sucii  case,  where  the  mortgagee 
took  possession  of  the  property  under  the 
mortgage  upon  payment  of  the  balance  of 
the  purchase  money,  he  might  compel  the 
execution  of  the  conveyance  by  the  vendor 
to  the  company.  Farmers'  L.  &•  T.  Co.  v. 
Fisher,  17  H'^is.  114. 

And  where  such  deed  has  been  executed 
and  left  in  the  hands  of  a  third  party,  as  an 
escrow,  to  be  delivered  on  payment  of  the 
balance  of  the  purchase  money,  such  mort- 
gagee in  possession  is  entitled  to  have  the 
deed  delivered  on  full  payment,  and  may 
record  same.  Farmers'  L.  &•  T.  Co.  v. 
Fisher,  17  Wis.  114. 

Where  a  company  mortgages  its  road  and 
all  of  its  right  of  way,  franchises,  rolling 
stock,  and  other  personal  property  then 
owned  or  thereafter  to  be  acquired,  and  all 
interest  thereto  and  interest  therein,  and 
also  all  future  right  thereto  and  interest 
therein,  with  a  covenant  for  further  convey- 
ances that  might  be  necessary,  the  mortgage 
becomes  a  valid  lien  upon  any  real  or  per- 
sonal property  subsequently  acquired  for 
the  use  of  the  road,  and  superior  to  a  ven- 
dor's lien  thereon  for  the  purchase  money. 
Pierce  v.  Milwaukee  &*  St.  P.  R.  Co.,  24 
Wis.  551.  — Di.STiNGUiSHED  IN  White  V. 
Nashville  &  N.  W.  R.  Co.,  7  Heisk.  (Tenn.) 
518. 

39.  When  after-acquired  realty 
will  not  pass.*  —  A  railroad  mortgage 
which  purports  to  cover  the  right  of  way, 

*  As  to  when  a  railroad  mortgage  does  noi  in- 
clude after-acquired  property,  or  property  noi 
directly  connected  with  railroading,  see  note,  "^i 
A.M.  Rei'.  353. 


■w^ 


MORTGAGES,  40. 


433 


and  "  also  all  other  property,  real  and  per- 
sonal, of  every  kind  and  description  whatso- 
ever, and  wherever  situated,  which  is  now 
owned  or  which  shall  hereafter  be  acquired 
l)v  the  said  company,  and  which  shall  be 
appurtenant  to,  or  necessary,  or  used  for 
tile  operation  of  said  main  line  of  railroad 
or  any  of  said  brandies,"  does  not  cover  a 
^jrant  of  lands  subsequently  made  by  con- 
j^ress  to  aid  in  the  construction  of  the  road. 
.\Vw  Orleans  Pac,  R.  Co.  v.  Parker,  143  U. 
.V.  43,  12  Sup.  Ct.  Rep.  364 ;  rez'ersintf  ■nFetl. 
lup.  693,— guoTiNG  Boston  &  N.  Y.  A. 
L.  K.  Co.  V.  Coffin,  50  Conn.  150.  Re- 
viewing Parish  v.  Wheeler,  22  N.  Y.  494; 
Meyer  v.  Johnston,  53  Ala.  237  ;  Mississippi 
\'ailey  Co.  v.  Chicago,  St.  L.  &  N.  O.  R.  Co., 
3S  Miss.  846.— Distinguished  in  Chicago, 
K.  I.  &  P.  R.  Co.  V.  Denver  &  R.  G.  R.  Co., 
143  U.  S,  596,  12  Sup.  Ct.  Rep.  479.— AVw 
Or/cans  &•  P.  R.  Co.  v.  Union  Trust  Co.,  43 
Am.  &*  Eng.  R.  Cas.  458,  41  Fed,  Rep.  717.— 
Rkviewing  Bell  v.  Chicago,  St.  L.  &  N.  O. 
R.  Co.,  34  La.  Ann.  yS^.—tUeyer  v.  Jo/in- 
ston,  8  Am.  &-  Eng.  R.  Cas.  584,  64  Aia.  603. 

Where  a  railroad  mortgage  enumerates 
certain  property  as  conveyed,  and  then  speci- 
fies "  all  other  corporate  property,  real  and 
personal,  of  said  railroad  company, belonging 
or  appurtenant  to  said  railroad,  whether  it 
is  held  and  owned  or  thereafter  to  be  ac- 
quired," does  not  include  a  tract  of  land 
subsequently  acquired  in  consideration  of 
tlie  location  of  a  station  thereon,  and  to  be 
liid  off  into  town  lots.  Calhoun  v.  Memphis 
&-  P.  R.  Co.,  2  EUpp.  {U.  S.)  442. 

A  company  mortgaged  "  all  its  railroad, 
with  its  superstructure,  track,  and  all  other 
appurtenances  made  or  to  be  made "  in, 
etc.,  between,  etc.,  and  all  its  right  and 
title  "  to  the  land  on  which  said  railroad 
is  and  may  be  constructed,  together  with 
all  rights  of  way  now  acquired  and  ob- 
tained, or  hereafter  to  be  acquired  or 
obtained,  by,  etc.,  and  including  the  engine 
houses,  depots,  etc.,  at,  etc.,  and  the  lots, 
etc.,  of  land  on  which  the  same  are  or  may 
be  erected,  and  all  the  pieces  of  land  which 
shall  be  used  for  depot  and  station  purposes, 
and  all  embankments,  bridges,  etc., and  struc- 
tures thereon,  and  appurtenances  thereto, 
and  all  franchises,  privileges,  and  rights  of 
mortgagors  in,  of,  and  to,  or  concerning 
the  same,"  etc.  Held,  that,  as  against  sub- 
sequent mortgage  creditors,  a  lot  of  wood- 
land, lying  seven  miles  from  the  road-track, 
subsequently  purchased   by  the  company, 


and  used  by  it  to  supply  wood  and  timber 
for  use  on  its  road,  was  not  covered  by 
this  mortgage.  Dinsmore  v.  Racine  &*  M. 
R.  Co.,  12  Wis.  649.— yuoTiNG  Coc  V,  Co- 
lumbus, P.  &  I.  R.  Co.,  10  Ohio  St.  372. 
Reviewing  Farmers'  L.  &  T.  Co.  w.  Com- 
mercial Bank,  11  Wis.  207.  Reviewing 
AND  Al'i'KC  '•  \G  Boston,  C.  &  M.  R.Co.  v. 
Gilmore,  37  A.  W.  410;  Sangamon  &  M.  R. 
Co.  V.  Morgan  County,  14  III.  163.  Re- 
viewing  AND  distinguishing  Farmers' 
L.  &  T.-Co.  V.  Hendrickson,  25  Barb.  (N.  Y.) 
484;  Phillips  z/.  Winslow.  18  B.  Mon.  (Ky.) 
431;  Willink  V.  Morris  C.  &  B.  Co.,  4  N.  J. 
Eq.  377 ;  Pierce  v.  Emery,  32  N.  H.  484 ; 
Seymour  v.  Canandaigua  &  N.  F.  R.  Co.,  25 
Barb.  284.— Followed  in  Farmers"  L.  &  T. 
Co.  V.  Cary,  13  Wis.  no.  Reviewed  in 
Morgan  -v.  Donovan,  58  Ala.  241. 

40.  At'tcr-acqiiired  prtipcrty  not 
iieceMHiiry  or  U8ud  for  purposes  of 
road.— A  railroad  mortgage  which  in  gen- 
eral terms  includes  future  acquisitions  will 
not  affect  any  property  of  the  company 
subsequently  acquired  except  such  as  is 
appurtenant  to  and  necessary  for  building 
and  operating  the  road  and  carrying  out 
the  purposes  for  which  it  was  created. 
Mississippi  Valley  Co.  v.  Chicago,  St.  L.  <S>» 
N.  O.  R.  Co.,  2  Am.  <S<«  Eng.  R.  Cas.  414,  58 
Miss.  896.— Approving  Calhoun  v.  Padu- 
cah  &  M.  R.  Co.,  2  Flipp.  (U.  S.)  442.  Dis- 
approving Pierce  v.  Emery,  32  N.  H.  484. 

So  railroad  chairs  subsequently  purchased 
by  the  company,  but  never  used  in  connec- 
tion with  the  road,  are  not  included  in  the 
mortgage.  Farmers'  L.  «&>•  T.  Co.  v.  Com- 
mercial Bank,  II  Wis.  207. — Followed  IN 
Farmers"  L.  &  T.  Co.  v.  Cary.  13   Wis.  no. 

A  general  mortgage  of  a  railroad  will  not 
include  after-acquired  lands  unless  they 
are  actually  used  as  part  of  the  road  in 
operating  it.  Calhoun  v.  Memphis  iS^  P.  R. 
Lv.,2  FUpp.  {U.  .V.)442. 

And  such  property  as  a  farm,  a  hotel, 
vacant  lots,  and  storehouses  subsequently 
acquired  are  not  included  in  the  mortgage, 
and  may  be  taken  in  execution  against  the 
company.  Af ississippi  Valley  Co.  v.  Chicago, 
St.  L.  &^  N.  O.  R.  Co.,  2  Am.  &>  Eng.  R. 
CrtJ.  414,  58  Miss.  896. 

Where  a  company  is  authorized  to  hold 
such  lands  as  are  necessary  for  depots,  sta- 
tions, warehouses,  wood  yards,  shops,  and 
other  legitimate  railroad  purposes,  all  such 
lands,  with  the  buildings  erected  thereon, 
will  pass  by  a  mortgage  of  its  property ;  but 


mi 


424 


MORTGAGES,  41,42. 


If  1 


}  9-, 


',\i< 


not  other  lands  acquired  by  the  company 
and  n(Jt  needed  for  railroad  purposes.  Sfy- 
iH0nr  V.  Ciiitaniiii/t^iia  &-•  A'.  /•'.  A'.  Co.,  14 
//int>.  Pr.  (A'.  )'.)  531,  25  liarb.  284. 

Where  a  mortgage  conveys  all  of  the 
property  of  a  railroad  company  which  be- 
longs to  the  company,  or  may  thereafter  be 
acquired,  to  be  used  as  a  part  of  the  road  or 
appurtenant  thereto,  "  or  necessary  for  the 
construction  or  operation  thereof,"  after- 
acquired  property  will  be  regarded  as 
riecessary  for  the  road,  when  it  is  such  as 
the  company,  in  tiie  reasonable  exercise  of 
its  discretion,  considers  it  best  to  procure, 
though  the  road  might  have  been  operated 
without  it.     liuck  V.  Seymour,  46  Conn,  i  56. 

41.  Wlivii  the  iiiortKiiKU  lien  ut- 
tiicliCH.*— The  lien  of  a  mortgage  attaches 
to  after-acquired  property  the  instant  it  is 
acquired.  Williamson  \.  New  Jersey  South- 
ern R.  Co.,  25  N.J.  Eq.  13. 

412.  Moi't{;nK<'H  <>t'  atter-n<M|iiirc(l 
property  ilo  not  displuoe  existhii; 
lieuM.f — A  mortgage  upon  after-acquired 
property  can  only  attach  itself  to  such  prop- 
erty in  the  condition  in  which  it  comes  into 
the  mortgagor's  hands.  If  it  is  already  sub- 
ject to  mortgages  or  other  liens,  the  general 
mortgage  does  not  displace  them,  though 
they  may  be  junior  in  point  of  time.  It 
ojily  attaches  to  such  interest  as  the  mort- 
gagor acquires.  Williamson  v.  New  Jersey 
Southern  R.  Co.,  28  N,  J.  Eq.  277.  14  Am. 
Ry.  Rep.  34  ;  reversed  in  29  A'.  /.  Eq.  311. 

If  the  company  purchase  property  subject 
to  a  lien  for  the  purchase  money,  such  lien 
is  not  displaced  by  the  general  mortgage. 
United  States  v.  Ne%v  Orleans  &>  O.  R.  Co.,  12 
Wall.(U,  S.)  362.— Followed  in  Hardesty 
V.  Pyle,  15  Fed.  Rep.  778.  Quoted  in 
Central  Trust  Co.  v.  Marietta  &  N.  G.  R. 
Co.,  48  Fed.  Rep.  868,  2  U.  S.  App.  95.  i  C. 
C.  A.  133. 

This  rule  fails  when  the  property  pur- 
chased is  annexed  to  a  subject  already  cov- 
ered by  the  general  mortgage  and  becomes 
a  part  thereof,  as  when  iron  rails  are  laid 
down  and  become  part  of  the  railroad. 
United  States  v.  A^ew  Orleans  iS^  O.  R.  Co., 
12  Wall.  {U.  S.)  362. 

Such  mortgage  does  not  exempt  personal 
property  of  the  company,  in  its  possession, 


*  Rights  of  mortpraKees  in  after-acquired  prop- 
erty, see  51  Am.  &  Eno.  R.  Cas.  62,  afis/r. 

\  Mortgage  covering  after-acquired  property 
does  not  displace  lien  on  such  property,  see  note, 
30  Am.  &  Eng.  R.  Cas.  498. 


from  the  levy  of  execution  sued  out  by 
judgment  creditors  of  the  company.  Coe 
V.  Peacock,  14  Ohio  St.  187. — Following 
Coe  V.  Columbus,  P.  &  I.  R.  Co.,  10  Ohio 
St.  372  ;  Coe  V.  Knox  County  Bank,  10  Ohio 
St.  412. 

A  mortgage  witii  the  "after-acquired  prop- 
erty "  clause  in  it  embraces  and  creates  a 
charge  upon  all  property  subsequently  ac- 
quired by  the  corporation  mortgagor  wliich 
comes  within  the  descrijnion  within  the 
mortgage ;  and  this,  not  only  as  to  property 
to  whicli  the  mortgagor  acquires  ihe  legal 
title,  but  also  as  lo  that  to  wliicli  it  acquires 
only  an  equitable  title.  The  mortgage  lien, 
however,  upon  the  subsequently  acquired 
property  only  attaches  from  the  time  of 
acquisition  by  the  mortgagor,  and  subject 
to  all  pre-existing  liens  thereon.  Brady  v. 
Johnson,  75  Md.  445,  26  Atl.  Rep.  49.— FoL- 
LOWiNd  Central  Trust  Co.  v.  Kneeland,  138 
U.  S.  414  :  Toledo.  D.  &  B.  R.  Co.  v.  Hamil- 
ton. 134  U.  S.  296. 

A  mortgage  of  after-acquired  property 
attaches  to  the  property  in  the  condition  in 
which  it  comes  into  the  hands  of  the  mort- 
gagor, subject  to  such  liens  and  encum- 
brances as  are  then  on  it;  and  when  the 
legal  title  is  in  another,  and  the  property  is 
made  subject  to  such  a  mortgage  by  a  decree 
in  chancery,  by  reason  of  equities  of  the 
mortgagor  in  the  premises,  the  mortgagee 
takes  subject  to  the  rights  of  third  persons 
acquired  before  the  property  was  subjected 
by  such  a  decree  to  the  lien  of  the  mort- 
gage. Williamson  v.  New  Jersey  Southern 
R.  Co.,  29  N.  J.  Eq.  ^n,  1^  Am.  Ry.  Rep. 
572  ;  reversing  28  A'.  J.  Eg.  277. 

If  a  company  executes  a  mortgage  on  its 
road,  franchises,  etc.,  and  afterwards  occu- 
pies land  for  its  uses,  and  damages  are  as- 
sessed, it  has  no  interest  in  such  land  on 
which  the  mortgage  can  operate,  and  a  sale 
under  the  mortgage  will  not  convey  the  title 
nor  extinguish  the  lien  for  the  damages. 
Western  Pa.  R.  Co.  v.  Johnston,  59  Pa.  St. 
290.— Dlstinouished  in  Fries  z/.  Southern 
Pa.  R.  &  M.  Co.,  85  Pa.  St.  73;  Campbell 
V.  Pittsburgh  &  W.  R.  Co.,  137  Pa.  St.  574. 

Where  a  corporation,  after  making  a 
mortgage  covering  after-acquired  property, 
becomes  owner  of  a  cargo  of  railroad  iron, 
subject  to  the  lien  of  the  United  States  for 
duties,  the  mortgage  will  attach  to  the  iron 
immediately  upon  its  becoming  the  property 
of  the  road,  subject  to  the  claim  of  the 
government ;  and  if  an  agreement  is  made 


MORTGAGES,  43,  44. 


190 


by 

INC. 

hio 
liio 


op- 
s  a 
uc- 
icli 

lIlL* 

rty 

L-gal 

res 

en, 

red 

of 

)ject 

V. 

■38 
mil- 


b  road  with  certain   individuals  tliat 

till  y  sliail  pay  the  duties,  allow  tlie  road 
lo  lay  the  iron  on  its  track,  and  retain  a 
lien  on  the  iron  for  the  money  so  ad- 
vanced, the  lien,  after  the  iron  has  been 
delivered  to  the  road  under  this  a(;rcenient, 
cannot  be  asserted  against  the  mortgage  to 
ilie  trustees  unless  they  had  notice  of  the 
ajiiccment,  and  ^ave  their  assent,  express 
or  implied.     Pierce  v.  Emery,  ^2  N,  //.  484. 

The  assent  of  the  trustees  would  in  such 
case  be  binding  on  the  bondholders.  Pierce 
V.  Emery,  32  A'.  H.  484. 

The  trustees  under  such  a  mortgage 
would  hold  subsequently  acquired  property 
as  incident  to  the  franchise  mortgaged,  and 
a  '  accession  to  the  subject  of  the  mort- 
Pierce  v.  Emery,  32  A^.  //.  484. 
^r  the  mortgage  the  trustees  were 
entitled  to  hold  personal  property,  acquired 
by  the  road  after  the  mortgage,  against 
subsequent  mortgages  of  the  specific  prop- 
erty so  acquired.  Pierce  v.  Emery,  32  A'. 
H.  484.— Approved  in  Howe  v.  Freeman, 
14  Gray  (Mass.)  566.  Distinguished  in 
Moston,  C.  &  M.  R.  Co.  v.  Gilmore.  37  N.  H. 
410.    Followed  in  Hunt  v.  Bay  State  Iron 

Co.,  97  Muss.  279.  Nor  FOLLOWED  IN 
Meyer  v.  Johnston,  53  Ala.  237.  Quoted 
IN  Coe  V.  Columbus,  P.  &  I.  R.  Co.,  10 Ohio 
St.  372. 

The  railroad,  before  the  mortgage  to  the 
trustees,  owned  a  cargo  of  railroad  iron, 
subject  to  the  lien  of  the  United  States  for 
duties,  and  agreed  with  the  plaintiffs  that 
tliey  might  pay  the  duties,  that  the  rail- 
road might  lay  the  iron  on  its  track,  and 
that  the  plaintiffs,  if  the  road  did  not  repay 
them  the  money  advanced  for  duties  within 
a  specified  time,  might  take  up  the  iron  and 
hold  it  for  security  of  the  money  advanced. 
Held,  the  iron  having  passed  according  to 
this  bargain  into  tiie  possession  of  the  road, 
that  the  lien  for  the  duties  was  gone,  and 
could  not  be  asserted  by  the  plaintiffs 
against  the  mortgage  to  the  trustees,  but 
tiiat  the  contract  was  valid  between  the 
parties  to  it,  and  that  if  the  trustees  had 
notice  of  it,  and  assented  to  it,  the  contract 
would  be  binding  in  equity  on  the  trustees 
and  bondholders.  Pierce  v.  Emery,  32  A^. 
H.  a84. 

43.  New  lines  of  railway  pur- 
chased subsequent  to  the  mortgaf^e. 
— Prior  to  the  purchase  of  a  railroad  the 
purchasing  company  had  executed  a  mort- 
gage upon    all  its    railroad  and  property 


acquired  or  to  be  acquired.  Held,  that,  in* 
asmuch  as  the  road  purchased  was  within 
its  cliarterci'  limits,  and  might  have  been 
constructed  if  it  had  not  been  purchased, 
the  mortgage  extended  to  and  covered  the 
road  when  n  chased  the  same  as  it  would 
have  done  liad  tlie  company  itself  construct- 
ed it.  Branch  v.  Jesup,  9  Am.  <S»  Eng,  P. 
Las.  558,  106  I/.  S.  |68,  I  Sup.  Ct.  Pep.  495. 
Branch  v.  ^itlantic  &*  G.  P.  Co.,  3  Woods 
{U.  S.)  481. 

Where  the  granting  clause  of  a  railroad 
income  mortgage  subjecting  to  the  lien  the 
"line  of  railroad  belonging  or  hereafter 
to  belong  "  to  the  mortgagor  is  qualified 
by  a  description  of  the  line  which  follows 
it,  and  the  directors  are  required  to  set 
apart  for  payment  of  the  interest  on  the 
income  mortgage  bonds  the  net  income 
derived  from  the  road  after  deducting  op- 
erating expenses  and  betterments  requisite 
to  maintain  the  line  of  railroad  in  first-class 
condition,  the  mortgage  security  is  limited 
to  the  roads  then  belonging  or  thereafter  to 
belong  to  the  railroad  company  within  the 
termini  specified,  and  the  directors  cannot 
deduct  from  the  fund  for  the  payment  of 
the  interest,  operating  and"  other  expenses 
in  connection  with  new  lines  acquired  by 
the  company.  Spies  v.  Chicago  6m  E.  I.  P. 
Co..  40  Am.  &*  Eng.  P.  Cas.  401,  40  Fed. 
Pep.  34. 

44.  Extensions  and  branch  lines 
constructed  after  the  mortgaife.— 
Where  a  company  mortgages  its  main  line 
between  designated  termini,  and  the  lands 
of  the  main  line,  and  franchises  acquired 
and  to  be  acquired,  or  pertaining  thereto, 
the  mortgage  does  not  embrace  lands  and 
franchises  acquired  under  a  subsequent  act 
of  the  legislature  authorizing  an  extension 
of  the  road  from  its  eastern  terminus. 
Pandoiph  V.  New  Jersey  W.  L.  P.  Co.,  28 
A^.  /.  Eg.  49,  14  Am.  Py.  Pep.  11.— Distin^ 
GUiSHED  IN  CoeT^.  Ncw  Jersey  Midland  R. 
Co.,  3t  N.  J.  Eq.  105. 

In  an  action  to  foreclose  an  equitable 
mortgage,  where  it  appears  that  plaintiil's 
intestate  conveyed  a  certain  line  of  railway 
property  to  defendant,  the  purchase  money 
to  be  secured  by  mortgage  upon  the  line 
conveyed,  and  upon  "  such  proposed  exten- 
sions as  the  company  owning  and  operating 
the  same  may  elect  to  include  in  such  mort- 
gage," and  that  at  a  stockholders'  meeting 
it  was  voted  to  issue  bonds  in  the  same 
chariicter  as  those  sued  on,  to  be  secured  on 


I 
I 


1!    ..  I 


426 


MORTGAGES,  46-47. 


all  the  property  of  the  company  from  H.  to 
P.,  both  constructed  and  to  be  constructed, 
which  included  the  only  extension  made  by 
the  company,  the  plaintiff's  equitable  mort- 
jjage  extended  to  tiie  part  of  the  line  sub- 
sequently constructed.  Texus  Western  K. 
Co.  V.  Gentry,  33  Aw.  &^  Eng.  R.  Cas.  46,  69 
^  Tex.  625.  8  S.  W.  Rep.  98. 

Where  a  railroad  mortgage  conveys  the 
road  as  constructed  and  to  be  constructed,, 
with  all  other  property. privileges.and  rights, 
then  owned  or  to  be  owned  by  the  company, 
it  covers  a  branch  track  which  is  projected 
and  laid  out  after  the  mortgage  is  executed 
as  appurtenant  to  the  main  track.  Seymour 
V.  Canandaigua  &»  N.  F.  R.  Co.,  14  How. 
Pr.  (N.  K.)  531,  25  Barh.  28-.  Coe  v.  Dela- 
ware, L.  &*  JV.  R.  Co.,  4  Am.  &>•  E/^.  R. 
Cas.  513,  34  iV.  /.  Eg.  266;  affirming  31  N. 
J.  Eg.  105. 

A  mortgage  of  a  railroad  between  desig- 
nated termini  which  the  company  had  then 
"located  and  resolved  to  construct"  will 
not  include  ferry  property  subsequently  ac- 
q.iired  as  an  extension  of  a  branch  road. 
Lloyd  V.  European  <S»  N.  A.  R.  Co.,  18  New 
lirun.  194. 

45.  Effect  of  change  of  route  after 
the  iiiortgnge.— Where  a  railroad  is  mort- 
gaged before  it  is  completed,  and  the  mort- 
gage in  terms  conveys  the  railroad  as  then 
located,  with  its  franchise  and  all  after-ac- 
quired property,  the  lien  of  the  mortgage  is 
not  avoided  by  changing  the  route  after  the 
mortgage  is  executed.  Elwell  v.  Grand  St. 
&•  N.  R.  Co.,  67  Barb.  (N.  V.)  83;  affirmed 
in  67  Barb.  85  «. 

4<t.  Effect  of  mortgages  of  after- 
acqitirefl  property  in  equity.—  Mort- 
gages of  future  acquisitions  of  property  by 
railroad  companies  are  upheld  in  equity 
and  liberally  construed.  Equity  treats  a 
mortgage  of  property  to  be  afterwards  ac- 
quired as  a  contract  binding  in  conscience, 
to  execute  a  mortgage  upon  it  at  the  in- 
stant it  comes  into  being,  and  will  enforce 
specific  performance.  It  does  more :  it  con- 
siders it  as  already  done  if  no  specific  per- 
formance be  requested,  and  then  binds 
everybody  to  respect  the  equitable  lien,  who 
knows  of  it,  or  without  knowing  of  it.  has 
got  the  property  without  valuable  consider- 
ation. Little  Rock  &•  Ft.  S.  R.  Co.  v.  Page, 
7  Am.  6-  Eng.  R.  Cas.  36,  35  ArJt.  304. 
Stevens  v.  Buffalo,  C.  &*  N.  Y.  R.  Co.,  45 
How.  Pr.  {N.  y.)  104. 

While  it  is  well  settled  that  a  party  can- 


not convey  subsequently  to  be  acquired 
goods  so  as  to  give  the  mortgagee  a  legal 
title  thereto,  or  a  legal  right  of  action 
against  a  party  seizing  them,  yet  such  a  con- 
veyance creates  in  equity  a  valid  lien  upon 
property  subsequently  acquired.  Butler  v. 
Ra/tw,  46  Md.  541,  18  A»i.  Ry.  Rep.  86. 

Especially  as  against  claimants  under  a 
junior  mortgage,  which  by  its  terms  is  sub- 
ject to  the  prior  mortgage,  and  against  jun- 
ior judgment  creditors.  Stevens  v.  Watson, 
4  Abb.  App.  Dec.  {JV.   V.)  302. 

So  where  a  railroad  mortgage  covers  a 
road  not  yet  completed,  it  is  valid  in  equity 
as  to  lands  not  yet  acquired,  and  buildings 
not  yet  erected,  if  coming  witiiin  the  class 
of  property  conveyed.  Seymour  v.  Canan- 
daigua &'  N.  F.  R.  Co.,  14  How.  Pr.  {JV. 
y.)  531,25  Barb.  2S4. 

This  doctrine  applies  only  where  the  con- 
tract of  the  mortgagor  to  transfer  such 
after-acquired  properly  to  the  mortgagee 
is  such  as  under  the  circumstances  would 
be  the  subject  of  a  decree  for  specific  per- 
formance. Where  the  property  is  acquired 
by  the  mortgagor  by  a  fraudulent  purchase, 
a  court  of  equity  will  not  give  effect  to  the 
fraud  of  the  mortgagor,  and  deprive  the 
vendor  of  his  right  to  rescind  the  contract 
of  sale  and  reclaim  the  property,  where  no 
superior  equities  have  intervened.  William- 
son V.  New  Jersey  Southern  R.  Co.,  29  A'^.  /. 
Eg.  311,  15  Am.  Ry.  Rep.  572;  reversing  28 
N.J.  Eg.  278. 

4.  Rolling  Stock, 
a.  In  General. 

47.  Is  personal  property.— Engines, 

cars,  and  rolling  stock  of  a  railroad  are 
chattels,  which  do  not  lose  their  distinctive 
character  as  personalty  by  being  affixed  to 
the  realty,  ff  'illiamson  v.  Neiv Jersey  South- 
ern R.  Co.,  29  N.  J.  Eg.  31 1. 1 5  Am.  Ry.  Rep. 
572  ;  reversing  28  A'.  /.  Eg.  277.  Hoyle  v. 
Plattsburgh  &-  M.  R.  Co.,  54  N.  K.  314  ;  re- 
versing  51  Barb.  45,  i,"]  Barb.  104.— Follow- 
ing Stevens?'.  Buffalo  &  N.  Y.  C.  R.  Co., 
31  Barb.  590.  Not  following  Farmers'  L. 
&  T.  Co.  71.  Hendrickson,  25  Barb.  484. 
Reviewing  Minnesota  Co.  z/.  St.  Paul  Co., 
2  Wall.  (U.  S.)  609. 

The  rolling  stock  of  a  railroad  is  personal 
property  of  the  corporation  and  may  be 
mortgaged  and  sold  for  its  debts,  but  should 
be  sold  with  such  precautions,  to  prevent  a 
sacrifice  and  produce  the  highest:  price,  as 


MORTGAGES,  48-50. 


427 


the  court  in  its  discretion  may  order.  Coe 
V.  Columbus, P.  <S*  /.  R.  Co.,  loO/tt'oSt.  372. 
—Quoting  Sangamon  &  M.  R.  Co,  v.  Mor- 
gan County,  14  III,  163 ;  Pierce  v.  Emery,  32 
N,  H,  484 :  Boston,  C.  &  M.  R.  Co.  v.  Gilmore. 
37  N.  H.  410.  — Followed  in  Neilson  v. 
Iowa  Eastern  R.  Co.,  51  Iowa  184,  714; 
Coopers  v.  Wolf,  15  Ohio  St.  523. 

The  rolling  stock,  materials,  rails,  ties, 
and  other  things  on  hand  for  running  or  re- 
pairing the  road,  the  platform  scales,  tools, 
and  implements,  and  all  articles  not  consti- 
tuting a  part  of  the  roadbed, or  firmly  affixed 
to  the  lai..'^. or  some  building  which  is  itself  a 
ti.\turc,  including  such  articles  as  are  usually 
denominated  chattels,  but  which  are  an- 
nexed by  a  screw  or  the  like  to  some  build- 
in<;,  and  which  can  be  removed  without  det- 
riment to  the  building,  will  not  pass  by  a 
mortgage  of  a  "  railroad,  real  estate,  chattels 
real,  and  franchises  of  the  company, "  but 
are  personal  property,  and  subject  to  execu- 
tion as  such.  Beardsley  v.  Ontario  Bank,  31 
Barb.  (N.  K)  619.  — FOLLOWING  Stevens  v. 
Buffalo  &  N.  Y.  C.  R.  Co.,  31  Barb.  590.— 
Followed  in  Randall  v.  Elwell,  52  N.  Y. 
521. 

48.  Is  not  personal,  but  part  of  the 
renlty. —  A  railroad  itself,  including  the 
ground  and  superstructure,  as  well  as  the 
depot  grounds,  buildings,  and  turntables, 
and  the  like,  are  real  estate ;  and  so  are  its 
rolling  stock,  rails,  ties,  chairs,  s^pikes,  and 
all  other  material  brought  upon  the  ground 
of  the  company  and  designed  to  be  attached 
to  tiie  realty.     Palmer  v.  Forbes,  23  ///.  301. 

But  fuel,  oil,  and  the  like,  which  are  de- 
signed for  consumption  in  the  use,  and 
which  may  be  sold  and  carried  away,  and 
used  as  well  for  other  purposes  as  in  the 
operation  of  the  road,  and  when  taken  away 
have  no  distinguishing  marks  to  show  that 
tliny  were  designed  for  railroad  uses,  are 
personal  property.  Palmer  v.  Forbes,  23 
///.  301.— Followed  in  Hunt  v.  Bullock, 
23  III.  320. 

As  between  a  mortgagee  and  an  execution 
creditor  rolling  stock  of  a  railroad  mort- 
gaged with  the  railroad  is  part  of  the  realty. 
Williamson  v.  Neiv  Jersey  Southern  R.  Co., 
28  .V.  J.  Eq.  277,  14  Am.  Ry.  Rep.  34;  re- 
versed  in  29  N.  J.  F.q.  31 1.  — DISTINGUISHED 
IN  Central  Trust  Co.  v.  Kneeland,  46  Am. 
&  Eng.  R.  Cas.  268, 138  U.  S.  414.  Not  fol- 
LOWED  IN  Metropolitan  Trust  Co.  v.  Penn- 
sylvania, S.  &  N.  E.  R.  Co.,  25  Fed.  Rep.  760. 

In  Illinois  rolling  stock  is  a  part  of  the 


realty  so  as  to  pass  by  a  conveyance  or 
mortgage  of  the  road.  Independently  of 
this  the  validity  of  the  lien  under  the  laws 
of  Michigan  upon  the  cars  conveyed  by  the 
deeds  of  trust  is  directly  averred  in  the  an- 
swer, and  its  validity  in  that  state  will  be 
assumed.  If  valid  by  the  law  of  the  place 
where  created,  it  will  be  enforced  here. 
Michigan  C.  R.  Co.  v.  Chicago  &•  M,  L.  S. 
R.  Co.,  I  ///.  App.  399. 

49.  When  a  niortf^age  will  include 
rolling  stock.— Where  a  company  exe- 
cutes a  mortgage  describing  the  property 
conveyed  as  "  all  the  present  and  future-to- 
be-acquired  property  of  the  company,  in- 
cluding right  of  way  and  land  occupied,  and 
all  rails  and  other  materials  used  therein 
or  procured  therefor,"  it  includes  rolling 
stock.  Pullan  v.  Cincinnati  &*  C.  A.  L.  R. 
Co.,  4  Biss.  (U.  5.)  35.  And  see  Hamlin  v. 
Jerrard,  4  Am.  6-  Eng.  R.  Cas.  488,  72  Me. 
62. 

50.  Mortgaginf;  rolling  stock  on  a 
particular  division.— A  company  own- 
ing a  railroad  and  the  rolling  stock  thereof 
may  assign  particular  portions  of  the  rolling 
stock  to  divisions  of  the  road,  and  mortgage 
the  divisions,  with  the  rolling  stock  assigned 
thereto.  In  a  given  case,  the  question 
whether  the  company  has  so  mortgaged  its 
rolling  stock  is  to  be  determined  from  its 
intention.  Minnesota  Co,  v.  St,  Paul  Co.,  2 
Wall.  (U.  5.)  609. 

Where  the  mortgagor  of  the  rolling  stock 
of  a  certain  division  of  a  railroad  cove- 
nants to  designate  in  a  certain  manner  as 
belonging  to  that  division  such  proportion 
of  the  whole  rolling  stock  owned  by  it  as 
the  division  bears  to  the  entire  railway,  such 
mortgage  only  covers  the  rolling  stock 
which  is  designated  as  belonging  to  the 
division  named,  although  the  mortgagor 
has  failed  to  designate  the  quantity  cove- 
nanted for.  United  States  Trust  Co.  v. 
Wabash  Western  R.  Co.,  40  Am.  &*  E>ig.  R. 
Cas.  397,  38  Fed,  Rep.  891. 

Where  rolling  stock  is  purchased  for, 
and  designated  as  belonging  to,  a  certain 
division  of  the  railroad,  the  lien  of  a  mort- 
gage \ipon  that  division  attaches  to  such 
rolling  stock,  if  the  rolling  stock  may  other- 
wise be  traced,  although  the  designation 
is  subsequently  obliterated,  as  against  the 
mortgagor,  or  purchasers  at  a  sale  under  a 
subsequent  mortgage  of  the  entire  railroad 
who  take  with  notice  of  the  first  mortgage. 
United  States  Trust  Co.  v.  Wabash  Western 


d 


s 


^ 


h 
J 


428 


JIORTGAGES.  51-54. 


J?.  Co.,  \.o  Am  &*  Eng.  A\  Cas.  397,  38  Fed. 
Rep.  891. 

51.  Necessity     of     recordiiigr     or 

fliiiitf.— Rolling  stock  is  personal  property 
as  between  mortgagees  and  judgment  cred- 
itors or  purchasers,  and  will  not  pass  as 
real  estate  or  fixtures  under  a  mortgage 
thereof  executed  by  the  company;  nor  will 
it  pass  as  personalty  unless  the  mortgage 
be  filed  as  a  chattel  mortgage,  according  to 
the  requirements  of  the  statute.  Stevens  w. 
Buffalo  C-^N.  Y.  C.  A'.  Co.,  31  Bar6.  {N.  K) 
590.— Disapproving  Farmers'  L.  &  T.  Co. 
V.  Hendrickson,  25  Barb.  484.  DlSliN- 
GUISHING  Mitchell  V.  Winslow,  2  Story  (U. 
S.)  630;  Seymour  v.  Canandaigua  &  N.  F. 
R.  Co.,  25  Barb.  284.  Quoting  Bishop  v. 
Bishop,  II  N.  Y.  126.  Reconciling  Coe 
V.  Hart,  6  Am.  Law.  Reg,  27.— Followed 
IN  Randall  v.  Elwell,  52  N.  Y.  521 ;  Beards- 
ley  w.  Ontario  Bank,  31  Barb.  (N.  Y.)6i9; 
Hoyle  V,  Plattsburgh  &  M.  R.  Co..  54  N.  Y. 
314. 

And  where  such  mortgage  is  given  before 
tiie  passage  of  New  York  Act  of  1868,  pro- 
viding that  railroad  mortgages  need  not  be 
filed  as  chattel  mortgages  if  recorded  as 
real  estate  mortgages,  it  is  void  as  against 
a  judgment  creditor ;  and  a  purchaser  at 
execution  sale  may  hold  the  property  as 
against  the  mortgagee.  Noy/e  v.  Platts- 
burgh &*  M.  R.  Co.,  l\N.Y.  314 ;  reversing 
51  Barb.  45,  47  Barb,  ic  \. 

Cal.  Civ.  Code,  §  2955,  provides  that 
chattel  mortgages  may  be  made  upon  lo- 
comotives, engines,  and  other  stock  of  a 
railroad  company.  Section  2957  provides 
that  a  mortgage  of  personal  property  is 
void,  as  against  creditors  and  subsequent 
purchasers,  unless  it  is  accompanied  by  an 
affidavit  of  ail  the  parties  that  it  is  made  in 
good  faith,  and  without  any  design  to  hin- 
der, delay,  or  defraud  creditors ;  or  ac- 
knowledged, proved,  certified,  and  recorded 
as  grants  of  real  estate.  Held,  that  a  mort-' 
gage  of  rolling  stock  is  void,  unless  the  stat- 
ute is  complied  with,  as  against  a  subsequent 
attacliment.  Union  L.  &•  T.  Co.  v.  Southern 
Cal.  Motor  Road  Co.,  51  Fed.  Rep.  840. 

52.  Priority  between  iiiortK»ffCHof 
rolling  stock.— Where  a  company  divides 
its  road  into  two  sections  and  mortgages 
each,  but  at  different  times,  and  both  are 
foreclosed,  the  rolling  stock  will  belong  to 
the  purchaser  under  the  senior  mortgage. 
Milwaukee  6*  M.  R.  Co.  v.  Milwaukee  6* 
St.  P.  R.  Co.,  6  irall.  (l/.S.)  742. 


53.  Mortgage  of  rolling  stock  is 
subject  to  pre-existing  lieii.s.  —  Roll- 
ing stock  is  a  chattel  personal,  not  con- 
verted into  realty  by  being  put  upon  the 
railroad,  and  liens  existing  upon  it  when 
delivered  to  the  company  will  not  thereby 
be  displaced  so  as  to  subject  the  property 
first  to  the  operation  of  prior  mortgages 
given  by  the  railroad  company  upon  its 
road  and  equipments.  Meyer  v.  Johnston, 
53  Ala.  2yj,  15  Am.  Ry.  Rep.  467.— NoT 
following  Pierce  v.  Emery,  32  N.  H.  484. 

54.  Wlien  rolling  stock  will  pass 
under  mortgage  of  atter-acquired 
property. — Rolling  stock  acquired  by  the 
company  after  the  mortgage  and  after  its 
consolidation  with  other  companies,  whether 
under  its  old  x>r  its  new  name,  passed  by  the 
mortgage,  but  subject  to  any  valid  liens 
existing  at  the  time  of  the  acquisition  ;  and 
the  rolling  stock  acquired  or  used  by  one 
while  operating  the  road  under  a  contract 
with  the  company,  and  transferred  by  him 
to  the  New  York  Guaranty  &  Indemnity 
Co.,  title  thereto  never  having  vested  ih  the 
railroad  company,  did  not  pass.  Meyer  v. 
Johnston,  8  Am.  &*  Eng.  R.  Cas.  584, 64  Ala, 
603. 

The  provision  of  the  Illinois  Constitution 
of  1870,  declaring  that  rolling  stock  and 
other  movable  property  of  a  railroad  shall 
be  personal  property,  does  not  change  the 
rule  in  equity  that  whenever  a  mortgage  is 
made  by  a  company  to  secure  bonds,  and  it 
includes  all  personal  and  after-acquired 
property,  as  soon  as  the  property  is  ac- 
quired the  mortgage  operates  upon  it  so 
as  to  prevent  a  lien  by  execution.  Scott  v. 
Clinton  &*  S.  R.  Co.,  6  Biss.  ( U.  S.)  529.— 
Following  Pennock  v.  Coe,  23  How.  (U. 
S.)  117  ;  Dunham  v.  Cincinnati,  P.  &  C.  R. 
Co.,  I  Wall.  (U.  S.)  254;  Galveston  R.  Co. 
V.  Cowdrey,  11  Wall.  459.— REVlkCWED  IN 
Williamson  v.  New  Jersey  Southern  R.  Co., 
29  N.J.  Eq.  311. 

A  railroad  corporation  empowered  by 
law  to  mortgage  its  franchise  and  property, 
after  making  a  mortgage  of  all  its  lands, 
franchise,  and  privileges,  and  "  all  the  loco- 
motive engines,  cars,  and  other  articles  of 
personal  property  whatsoever  now  owned 
or  used  by  the  corporation,  or  which  it  may 
hereafter  own  or  use,"  authorized  its  direc- 
tors to  issue  bonds  to  the  amount  of 
(i, 200,000  to  pay  debts  contracted  in  build- 
ing and  furnishing  its  road,  and  to  secure 
such  bonds  by  "  an   additional  or  second 


MORTGAGES,  55,  50. 


4?.» 


mortgage  of  the  road,  franchise,  and  prop- 
erty of  every  description,  including  cars 
and  engines."  subject  to  the  first  mortgage, 
and  "  as  full  and  complete  "  as  that.  Pur- 
suant to  this  authority  bonds  were  issued, 
iind  a  second  mortgage  made  of  all  the 
lands,  franchise,  and  privileges  of  the  corpo- 
ration, "  and  the  property  and  premises 
whatsoever,  mentioned,  specified,  described, 
or  referred  unto  in  the  first  mortgage. "  Held, 
that  the  second  mortgage,  as  against  a  sub- 
sequent attachment,  conveyed  engines  and 
cars  acquired  by  the  corporation  after  the 
first  and  before  the  second  mortgage.  Hen- 
shaw  V.  Bank  of  Bellows  Falls,  lo  Gray 
(Mass.)  568. 

A  railroad  company  under  authority  of 
law  mortgaged  "  all  its  road,  property, 
rights,  liberties,  privileges,  corporate  fran- 
chises, incomes,  tolls,  and  receipts  then  held 
or  thereafter  to  be  acquired  "  "  in  trust  for 
the  use,  benefit,  and  security  of  the  holders" 
of  certain  bonds  therein  described.  Held, 
that  the  mortgage  was  a  lien  upon  engines, 
rolling  stock,  etc.,  in  actual  use  by  the 
company  and  required  for  the  transaction 
of  its  business,  whether  owned  at  the  date 
of  the  mortgage  or  afterwards  acquired. 
Philadelphia,  W.  &»  B.  R.  Co  v.  Woeip- 
per,  64  Pa.  St.  366.— EXPLAINED  IN  Met- 
ropolitan Trust  Co.  V.  New  York,  L.  E.  & 
W.  R.  Co.,  45  Hun  (N.  Y.)  84. 

55.  Mortgrafres  of  after-acquired 
rolliiif;  stock. — The  general  rule  is  that 
property  not  in  esse  cannot  be  conveyed  ; 
but  a  railroad  mortgage  of  all  present  and 
after- acquired  property  forms  an  exception 
to  the  rule,  and  such  mortgage  may  include 
after-acquired  rolling  stock.  Morrill  v. 
Xoyes,  56  /»/^.458.    Shaw  v.  Bill,  95  U.  S.  10. 

Such  a  mortgage,  in  equity  at  least,  will 
convey  subsequently  acquired  rolling  stock 
as  against  judgment  creditors.  Pennock  v. 
Coe,  23  Ho7v.  (U.  5.)  117. 

A  railroad  mortgage  which  in  terms  con- 
veys the  road,  lands,  tracks,  buildings,  privi- 
leges, and  franchises,  "  together  with  all 
locomotives,  tenders,  cars,  carriages,  tools, 
and  machinery,  owned  or  thereafter  to  be 
owned  by  the  company,  or  in  any  way  be- 
longing to  or  appertaining  to  said  road  and 
to  be  used  thereon,"  is  a  valid  conveyance 
ill  equity  as  to  property  afterwards  acquired ; 
and  a  foreclosure  decree  declaring'  such 
property  to  be  included,  and  directing  a  sale 
tliereof,  is  conclusive  as  to  all  persons  who 
are  parties  or  privies  to  the  suit.   Benjamin 


V.  Elmira,  J,  <S-  C.  R.  Co.,  49  Barb.  (N.  Y.) 

441  ;  affirmed  (?)  in  54  A'.  Y.  675,  mem. 

The  directors  of  a  railroad  authorized  by 
a  vote  of  its  stockholders  "  to  execute  a 
mortgage  of  the  road  with  all  its  franchises  " 
made  a  mortgage  which  recited  this  vote, 
and  in  terms  conveyed  their  road,  houses, 
lands,  and  superstructures,  and  all  their 
locomotives,  cars,  tools,  and  implements, 
"with  all  improvements  made  upon  such 
property,  and  all  additions  thereto,  by  add- 
ing new  locomotives,  cars,  and  other  things;" 
and  the  legislature  afterwards  ratified  and 
confirmed  "  their  proceedings  whereby  they 
conveyed,  agreeably  to  the  vote  of  the  stock- 
holders, their  railroad  and  property  in 
•  mortgage."  Held,  that  cars  subsequently 
purchased  by  the  corporation  were  included 
in  the  mortgage,  although  the  mortgagees 
had  not  taken  possession  for  foreclosure. 
Hffive  V.  Freeman,  14  Gray  (Mass.)  566. — 
Approving  Pierce  v.  Emery,  32  N.  H.  485. 

b.  Relative  Rights  of  Mortgagee  and  Con- 
ditional Vendor  or  Lessor. 

56.  Position  of  vendor  who  re- 
serves title  until  payment.*  —  Cars 
were  sold  to  a  mortgaged  railroad,  and  the 
title  retained  by  the  seller  until  paid  for. 
The  contract  was  not  recorded,  and  the 
mortgagees  claimed  the  cars  were  subject 
to  the  lien  of  their  mortgage  as  after-ac- 
quired property,  and  they  were  sold  in  a 
foreclosure  suit.  Held,  that,  though  it  was 
decided  that  the  cars  were  not  subject  to 
the  lien  of  the  mortgage,  yet,  having  been 
sold  under  it,  an  order  for  payment  of  the 
price  from  the  fund  in  court  was  correct. 
Fosdick  V.  Southwestern  Car  Co.,  99  U.  S. 
256. 

'  Cars  were  so'.d  a  railroad  on  credit,  the 
seller  retaining  the  title  "Until  paid  for. 
Subsequently  a  receiver  of  the  road  sur- 
rendered the  cars  to  the  seller,  and  the  road 
was  sold  under  a  mortgage.  The  seller  then 
presented  a  claim  for  the  use  of  the  cars. 
Held,  that  he  occupied  the  position  of  a 
common  creditor,  and  was  not  entitled  to 
payment  as  against  the  claims  of  the  mort- 
gagees.   Huidekoper  v.  Hinckley  Locomotive 

Works,  99  U.  S.  258.— Following  Fosdick 
V.  Schall,99  U.  S.  235.— Applied  in  United 
States  Trust  Co.  v.  New  York,  W.  S.  &  B. 


•  Conditional  sale  or  lease  of  rolling  stock. 
see  note,  S7  Am.  &  Eno.  R.  Cas.  339. 


\.| 


h1 


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t*5 


..  i\ 


130 


MORTGAGES,  67. 


n  f  ^i 

Vr 

4'^  -> 

m 

r  i 

R.  Co.,  25  Fed.  Rep.  8oo.    Followed  in 
Burnliain  v.  Bowen,  1 1 1  U.S.  776. 

The  vendor  of  rolling  stock  to  an  im- 
provement company  by  iiis  contract  of  sale 
reserved  title  thereto  until  payment  of  the 
purchase  money.  The  improvement  com- 
pany supplied  the  rolling  stock  to  a  railroad 
company  in  order  to  enable  the  latter  to 
raise  money  on  bonds  secured  by  mortgage 
on  its  railroad  and  equipments.  Ne/d,  in 
a  suit  to  foreclose  such  mortgage,  that 
the  original  vendor,  having  no  notice  of 
equities  existing  between  the  purchasers  of 
the  bonds  of  the  railroad  company  and  the 
improvement  company,  was  entitled  to  the 
possession  of  the  rolling  stock,  title  to 
which  he  had  retained.  Centra/  Trust  Co. 
v.  Marietta  *3-  N.  G.  K.  Co.,  48  Fed.  Kep. 
864.  2  U.  S.  App.  106,  I  C.  C.  A.  139.— Fol- 
lowing Central  Trust  Co.  v.  Marietta  &  N. 
G.  R.  Co.,  48  Fed.  Rep.  850. 

But  where  said  improvement  companyhas 
been  the  means  of  placing  the  bonds  of  the 
company  secured  by  the  mortgage,  it  is  es- 
topped from  setting  up  title  to  the  rolling 
stock  as  against  the  bondholders,  and  the 
car  company  cannot  take  title,  or  obtain 
any  advantage,  by  a  resale  of  the  roll- 
ing stock  by  th-  improvement  company 
back  to  the  car  company.  Central  Trust 
Co.  V.  Marietta  &*  N.  G.  R.  Co.,  48  Fed.  Rep. 
864,  2  U.  S.  App.  106,  I  C.  C.  A.  139. 

A  railroad  company  executed  a  mortgage 
to  secure  the  equipment  of  its  road,  convey- 
ing its  present  and  after-acquired  property. 
Subsequently  an  improvement  company  un- 
dertook to  equip  th6  road,  and  purchased 
rolling  stock  from  a  car  company  under  a 
conditional  sale  by  which  the  car  company 
retained  title  until  the  price  was  fully  paid. 
Held,  that  the  car  company  might  intervene 
in  a  foreclosure  proceeding  and  claim  the 
rolling  stock.  'Central  Trust  Co.  v.  Mari- 
etta Sf  N.  G.  R.  Co.,  48  Fed.  Rep.  865.  2  U. 
S.  App.  120,  I  CCA.  130.— Followed  in 
Central  Trust  Co.  v.  Marietta  &  N.  G.  R. 
Co..  48  Fed.  Rep.  875. 

Where  a  vendor  of  rolling  stock  inter- 
venes in  a  foreclosure  proceeding  and  claims 
the  rolling  stock  under  a  conditional  sale 
by  which  he  retained  title  until  the  prop- 
erty was  paid  for,  and  it  appears  that  the 
rolling  stock  has  increased  ten  per  cent,  in 
value  since  it  was  sold,  in  determining  the 
amount  that  should  be  paid  to  the  inter- 
vener to  discharge  his  claim  the  ten  per 
cent,  should  be  added  to  the  original  cost 


before  deducting  a  certain  annual  percent- 
age for  wear  and  tear.  Central  Trust  Co.  v. 
Marietta  &*  N.  G.  R.  Co.,  48  Fed.  Rep.  875, 
2  C/.  S.  App.  113,  I  C  C.  A.  140.— Follow- 
ing Central  Trust  Co.  v.  Marietta  &  N.  G. 
R.  Co.,  48  Fed,  Rep.  865. 

The  petitioner  sold  to  a  railroad  com- 
pany a  locomotive  upon  the  condition  that 
it  should  be  paid  for  on  delivery.  It  was 
delivered,  but  was  not  paid  for.  The  ven- 
dor, without  asserting  its  right  to  repossess 
itself  of  the  locomotive,  sued  to  recover  the 
price,  and  by  garnishment  and  judgment 
secured  partial  satisfaction.  Neld,  that  the 
delivery,  in  the  first  instance  conditional, 
became  absolute  by  the  conduct  of  the 
vendor,  so  that  the  latter  had  no  reserved 
lien  upon  the  locomotive.  Manchester 
Locomotive  Works  v.  Truesdale,  44  Minn. 
115,  9  Z.  R.  A.  140,  46  A^.   W.  Rep.  301. 

More  than  six  months  after  the  sale  the 
road  was  placed  in  the  hands  of  a  receiver 
at  the  suit  of  the  holders  of  mortgage  bonds 
to  foreclose  their  mortgages,  given  long 
before  the  sale,  and  covering  all  the  prop- 
erty of  the  company,  present  and  prospec- 
tive, including  its  earnings.  Nearly  a  year 
after  the  appointment  of  the  receiver  the 
vendor  applied  to  the  court  for  an  order 
requiring  the  payment  of  the  balance  of  its 
debt  out  of  the  earnings  of  the  receiver- 
ship. Held,  that  the  debt  was  more  prop- 
erly to  be  classed  with  the  general  debts  of 
the  corporation  than  with  those  incurred 
for  current  expenses  proximately  connected 
with  the  operation  of  the  road  by  the  re- 
ceiver, and  hence  the  court  properly  re- 
fused to  allow  this  claim  ns  one  equitably 
entitled  to  preference  over  the  claimsof  the 
bondholders  secured  by  mortgage  (ante- 
dating the  sale  of  the  locomotive)  upon  the 
earnings  of  the  road.  Manchester  Locomo- 
tive Works  V.  Truesdale,  44  Minn.  115,  9  Z.. 
R.  A.  140.  46  A^.   W.  Rep.  301. 

57.  Priority  betw<>eii  iiiort(>:a};e 
and  ceiitalti  of  rolling  stock.— Under 
railroad  mortgages,  rentals  of  rolling  slock 
under  agreements  by  which  the  title  to  the 
stock  is  retained  by  the  lessor  and  only  ac- 
quired by  the  lessee  upon  the  payment  of 
certain  sums  by  way  of  rental  are,  so  far  as 
concerns  rentals  accruing  during  the  pos- 
session of  the  lessee,  not  entitled  to  any 
equitable  priority  over  the  lien  of  a  mort- 
gage in  so  far  as  such  rentals  accrued  before 
the  appointment  of  a  receiver  in  proceed- 
ings to  foreclose  such  mortgage.    Kneeland 


MORTGAGES,  58,59. 


431 


V.  American  L.  <&-  T.  Co.,  43  Am.  &*  Eng. 
R.  Cas.  519,  136  [/.  S.  89,  10  Sup.  Ct.  Rep. 
950.— (Quoted  in  Central  Trust  Co.  v. 
Wabash.  St.  L.  &  P.  R.  Co.,  46  Am,  &  Eng. 
K.  Ciis.  301,  46  Fed,  Rep,  26. 

Where  a  receiver  of  a  railroad  is  ap- 
pointed at  the  suit  of  a  judgment  creditor, 
and  thereafter  the  possession  of  the  railroad 
is  transferred  to  a  receiver  subsequently 
appointed  in  proceedings  to  foi"''lose  a 
mortgage,  rental  of  rolling  stock  during  the 
first  receivership  is  not  entitled  to  priority 
over  the  mortgage  claim,  when  it  appears 
that  the  receipts  during  the  first  receivership 
did  not  equal  the  operating  expenses,  and 
there  was  therefore  no  diversion  of  the  cur- 
rent earnings,  and  the  rolling  stock  was  not 
sold  upon  sale  under  foreclosure  proceed- 
ings, but  was  restored  to  the  lessors.  Knee- 
land  V.  American  L.  &*  T.  Co.,  43  Am.  &* 
Eng.  R.  Cas.  519,  136  £/.  S.  89.  10  Sup.  Ct. 
Rep.  950.— Distinguished  in  Kneeland 
V.  Bass  Foundry  &  M.  Works,  48  Am. 
&  Eng.  R.  Cas.  675,  140  U,  S.  592.  Quoted 
in  Finance  Co.  7>.  Charleston,  C.  &  C.  R. 
Co..  52  Fed.  Rep.  678.  Referred  to  in 
Union  L.  &  T.  Co.  Vi  Southern  Cal.  Motor 
Road  Co.,  51  Fed.  Rep.  106, 

A  railroad  mortgage  covering  after-ac- 
quired property  does  not  attach  to  rolling 
stock  which  a  third  person  subsequently 
places  on  the  road  under  a  contract  by 
which  the  company  does  not  obtain  title. 
Hardesty  v.  Pyle,  15  Fed.  iW/).  778.— Fol- 
lowing United  States  v.  New  Orleans  R. 
Co..  12  Wall.  (U.  S.)  362.  Quoting  Fos- 
dirk  V.  Schall,  99  U.  S.  251. 

Where  the  owner  of  rolling  stock  places 
it  upon  a  railroad  under  a  lease  and  is  to 
bear  all  the  loss  and  deterioration,  and  a 
foreclosure  proceeding  is  referred  to  a  mas- 
ter to  ascertaiti  a  reasonable  rent  for  the  use 
of  the  rolling  stock,  eight  per  cent,  will  be 
deemed  too  low.  Pullan  v.  Cincinnati  &* 
C.  A.  L.  R.  Co.,  5  Riss.  (U.  S.)  237, 

58.  Car-trust  leases.*— Where  a  rail- 
road company  obtains  rolling  stock  under 
its  own  contracts  with  car  builders,  the  fact 
that  certain  car-trust  certificates  are  issued 
under  an  alleged  lease  by  which  the  com- 
pany does  not  obtain  title  until  the  rolling 
stock  is  fully  paid  for,  which  certificates  in 
f.ict  are  but  mortgage  bonds,  the  lien  cre- 
ated thereby  is  inferior  to  a  prior  mortgage 
given  by  the  company  upon  all  of  its  present 

*  See  also  Car  Trust  Associations,  2. 


and  after-acquired  property.  Central  Trust 
Co.  V.  Ohio  C.  R.  Co.,  36  Am.  &•  Ent{.  R. 
Cas.  299,  36  Fed.  Rep.  520. — Quoting 
Frank  v.  Denver  &  R,  G.  R.  Co.,  23  Fed, 
Rep.  123. 

The  owner  of  cars,  in  the  hands  of  a  rail- 
road company  under  a  car-trust  lease  which 
reserved  to  the  owner  the  right  to  reclaim 
its  property  upon  default  in  the  payment  of 
rent,  intervened  in  proceedings  to  foreclose 
a  mortgage,  and  petitioned  the  court  to  di- 
rect the  receiver  to  restore  the  cars  within 
thirty  days.  The  cars  were  not  restored, 
but  payments  of  rent  were  made  to  the 
owner  from  time  to  time  by  applying 
thereon  amounts  due  to  the  receiver  for 
freight  transported  in  the  same  manner  as 
had  been  done  previous  to  liis  appointment. 
The  use  of  the  cars  was,  without  objection 
by  the  bondholders  or  the  trustee,  in  the 
receiver.  Subsequently  the  owner  of  the 
cars  presented  another  petition,  praying 
that  an  order  be  entered  directing  the 
receiver  to  pay  to  it  the  amount  due  on  the 
basis  of  the  car-trust  contract,  and  that 
such  indebtedness  be  decreed  a  prior  lien, 
or  charged  upon  the  earnings  as  well  as  the 
property  embraced  in  the  mortgages,  //eld, 
that  the  action  of  the  receiver  in  continu- 
ing to  use  the  cars,  and  the  failure  of  the 
bondholders  to  object  to  such  continued 
use,  did  not  amount  to  a  conversion  of  the 
property  embraced  in  the  car-trust  agree- 
ment, and  that  the  prayer  of  the  petition 
must  be  refused.  Farmers'  L.  &*  T.  Co.  v. 
Chicago  &•  A.  A'.  Co.,  43  Am.  &*  Eng.  R. 
Cas.  436,  42  Fed.  Rep.  6.— Applying  Union 
Trust  Co.  z/.  Illinois  Midland  R.  Co.,  117  U. 
S.  479,  6  Sup.  Ct.  Rep.  809.  Distinguish- 
ing Burnham  v.  Bowen,  in  U.  S.  776,  4 
Sup.  Ct.  Rep.  675  ;  Miltenberger  v.  Logans- 
port  C.  &  S.  W.  R.  Co.,  106  U.  S.  286,  I 
Sup.  Ct.  Rep.  140. 

59.  Necessity  ofrecordindr  the  con- 
veyance.— Cars  sold  and  delivered  to  a 
railroad  company  in  Illinois  under  an  un- 
recorded written  agreement  that  the  title 
shall  remain  in  the  seller  until  paid  for  are 
not  subject  to  the  lien  of  a  prior  mortgage 
given  by  the  road  on  its  then  existing 
property,  and  on  all  after-acquired  prop- 
erty. Such  contract  is  valid  between  the 
parties  thereto,  and  the  mortgagees  of  the 
road  could  obtain  no  better  title  than  their 
mortgagor  had.  Fosdick  v.  Schall,  99  U.  S. 
235. —  Distinguishing  Hervey  ■?/.  Rhode 
Island  Locomotive  Works,  93  U.  S.  664; 


\ 


i  >*:-- 


•"■*f   'I 


{.M^' 


433 


MORTGAGES,  59. 


Green  v.  Van  Buskirk,  5  W;ill.  (U.  S.)  307 ; 
Murch  V.  Wright,  46  111.  488.  —  Distin- 
(;ui.sHF.D  IN  American  L.  SiT.Co.v.  East 
&  W.  R.  Co.,46  Fed.  Rep.  loi.  Followkd 
IN  Fosdick  V.  Soutliwestern  Car  Co.,  99  U. 
S.  256 ;  Huidekoper  v.  Hinckley  Locomo- 
tive Works,  99  U.  S.  258.  Rkvikwed  in 
Central  Trust  Co.  v.  Wabash,  St.  L.  &  P. 
R.  Co.,  46  Am.  &  Eng.  R.  Cas.  301,  46  Fed. 
Rep.  26. 

In  such  case  possession  of  the  cars  by  a 
receiver  of  the  road,  pending  a  foreclosure, 
adds  nothing  to  the  title  of  the  mortgagees, 
and  does  not  aflect  an  order  of  court  di- 
recting the  receiver  to  return  the  cars  to  the 
seller  when  it  is  adjudged  that  he  is  entitled 
tliereto.  Fosdick  v.  Sc/tall,  99  U.  S.  235. — 
Followed  in  Central  Trust  Co.  v.  St. 
Louis,  A.  &  T.  R.  Co.,  42  Am.  &  Eng.  R. 
Cas.  26,  41  Fed.  Rep.  551 ;  Farmers'  L.  &  T. 
Co.  V.  Kansas  City,  W.  &  N.  W.  R.  Co.,  53 
Fed.  Rep.  182.  Quoted  in  Quincy,  M.  & 
P.  R.  Co.  V.  Humphreys,  28  Abb.  N.  Cas. 
(N.  Y.)  332;  Hardesiyi/.  Pyle,  15  Fed.  Rep. 
778;  Mcllhennyz/.  Binz,  80  Tex.  i.  Rec- 
ognized in  United  States  Trust  Co.  i/.  New 
York,  W.  S.  &  B.  R.  Co.,  25  Fed.  Rep. 
Soo. 

In  such  case,  where  the  cars  are  returned 
to  the  seller,  and  the  mortgage  property 
sold,  the  seller  only  occupies  the  position 
of  a  general  creditor  in  enforcing  a  balance 
due  him  for  the  use  of  the  cars  before  their 
return,  a  part  of  which  use  was  by  the  re- 
ceiver, and  is  not  entitled  to  payment  from 
the  fund  arising  from  the  foreclosure  sale 
as  against  the  mortgage  creditors.  Fosdick 
v.Schall,  99  U.  S.  235.— Distinguished  in 
Bound  V.  South  Carolina  R.  Co.,  50  Fed. 
Rep.  312 ;  Finance  Co.  v.  Charleston,  C.  & 
C.  R.  Co.,  52  Fed.  Rep.  678.  Explained 
IN  Finance  Co.  v.  Charleston.  C.  &  C.  R. 
Co.,  51  Am.  &  Eng.  R.Cas.  55,49  Fed.  Rep. 
693;  Quincy,  M.  &  P.  R.  Co.  v.  Hum- 
phreys, 145  U.  S.  82,  12  Sup.  Ct.  Rep.  787. 
Followed  in  Burnham  v.  Bowen,  iii  U. 
S.  776.  Quoted  in  Williamson  v.  Wash- 
ington City.  V.  M.  &  G.  S.  R.  Co.,  i  Am.  & 
Eng.  R.  Cas.  498,  33  Gratt.  (Va.)  624. 

A  contract  purporting  to  be  a  lease  of 
cars  whereby  the  lessee  is  to  pay  a  certain 
per  cent,  on  the  stock  for  ten  years,  at  the 
end  of  which  time  they  are  to  become  the 
property  of  the  lessee,  is  in  fact  a  mortgage, 
and  subject  to  the  Colorada  laws  relating 
to  recording  mortgages.  Frank  v.  Denver 
&»  R.  G.  R.  Co.,  23  Fed.  Rep.  123.— Quoted 


in  Central  Trust  Co.  v.  Ohio  C.  R.  Co.,  36 
Am.  &  Eng.  R.  Cas.  299,  36  Fed.  Rep.  510, 

A  contract  made  in  Missouri  between  a 
car  manufacturer  and  a  railroad  whereby, 
among  other  things,  the  company  was 
bound  to  pay  the  price  of  certain  cars 
"loaned  to  it  for  hire,"  either  by  paying  its 
notes  executed  for  the  amount,  or  by  sur- 
rendering the  cars  to  be  sold  to  pay  it — held, 
to  be  a  mortgage  which,  under  the  laws  of 
the  state,  must  be  recorded  to  protect  tlie 
cars  against  the  lien  of  an  execution  by  a 
third  party  against  the  company.  Hery- 
ford  V.  Davis,  2  Am,  &-  Eng.  K.  Cas.  3S6, 
102  U.  S.  235. 

A  railroad  company  executed  a  mortgage 
to  a  trust  company  covering  its  present  and 
after-acquired  property,  which  was  duly  re- 
corded. Subsequently  the  company  bought 
certain  cars  under  an  agreement  by  which 
the  builder  retained  title  until  they  were 
fully  paid  for,  but  this  contract  was  not  re- 
corded. The  car  builder  intervened  in  a 
suit  to  foreclose  the  mortgage  and  claimed 
the  cars.  A  statute  of  Georgia,  where  the 
property  was  situated,  provides  that  in  order 
to  retain  title  to  personal  property  as  against 
third  parties  the  title  must  be  reserved  in 
writing,  and  the  writing  duly  executed  and 
recorded  as  a  chattel  mortgage.  Held,  tiiat 
the  trust  company  was  not  a  third  party, 
within  the  meaning  of  tiiis  statute,  and  as 
the  statute  was  only  intended  for  the  bene- 
fit of  subsequent  purchasers  or  creditors,  it 
could  not  take  advantage  of  the  failure  nf 
the  car  builder  to  record  the  writing  by 
which  the  cars  were  sold.  Central  Trust  Co. 
v.  Marietta  &>  N.  G.  R.  Co.,  48  Fed.  Rep. 
868,  2  U.  S.  App.  95,  I  C.  C,  A.  133.— Quot- 
ing United  States  v.  New  Orleans  R.  Co., 
12  Wall.  (U.  S.)  362. 

A  subsequent  statute  of  the  state  passed 
in  1889  makes  conditional  sales  of  rolling 
stock  validfbut  requires  that  the  reserva- 
tion of  title  shall  be  in  writing,  and  record- 
ed within  six  months  from  its  execution. 
Held,  that  the  statute  was  intended  for  the 
benefit  of  third  parties,  and  operated  as  a 
repeal  of  the  form».r  statute  only  so  far  as 
to  provide  a  different  method  for  the  ex- 
ecution of  contracts  for  the  conditional 
sale  of  rolling  stock.  Central  Trust  Co.  v. 
Marietta  <S-  ./.  G,  R.  Co.,  48  Fed.  Rep.  868 
2  U.  S.  App.  95.  I  C,  C.  A.  133. 

The  above  act  of  1889  has  no  application 
to  a  contract  made  before  its  passage  by 
two  foreign  corporations  for  the  sale  of  roll- 


MORTGAGES,  00,01. 


433 


iiig  stock  to  be  used  in  tlie  state,  neither  of 
the  two  corporations  being  the  owner  or 
operator  of  a  railroad  in  the  state.  Central 
Trust  Co.  V.  Marietta  &•  A'.  G.  R.  Co.,  48 
Fed.  Rep.  865,  2  U.  S.  App.  120,  i  C.  C.  A. 
130. 

VVliere  a  railroad  mortgage  covers  after- 
acquired  properly,  it  attaches  to  sucli  prop- 
erty subject  to  all  existing  Hens  and  equities. 
So  where  cars  a.\x  furnished  before  fully 
paid  for,  the  selk-r  is  entitled  to  a  prior  lien 
thereon,  whether  the  contract  of  sale  is 
properly  recorded  or  not.  A'acjfass  v.  At- 
Uxntic  (i-  D.  R.  Co.,  56  Fed.  Rep! 676. 

A  contract  between  the  builders  of  cars 
and  a  company  for  the  sale  of  cars  in  which 
it  is  stipulated  that  the  title  should  remain 
in  the  builders  until  the  cars  were  paid  for, 
and  that  upon  a  failure  to  pay  ihe  builders 
might  lake  possession  and  sell  the  property, 
is  a  contract  in  the  nature  of  a  mortgage, 
and  creates  a  valid  lien  as  between  the  par- 
lies ;  but  where  the  cars  are  placed  upon 
the  railroad  of  the  purchasers  in  another 
state,  the  lien  is  not  goud  against  creditors 
or  innocent  purchasers,  unless  the  contract 
is  recorded  according  to  the  laws  of  the 
state  where  the  cars  are,  Barney  &"  S. 
Mfg.  Co.  V.  Hart,  (Ky.)  i  S.  IV.  Rep.  41.1. 

00.  Protection  uvcordetl  the  lien 
ill  furcclosiire. — Although  in  proceedings 
to  foreclose  a  railroad  mortgage,  and  to  ad- 
just the  claims  of  intervening  creditors, 
leasv-s  of  cars  by  a  car  company  to  the 
mortgagor  company,  both  of  which  com- 
panies are  dominated  and  controlled  by 
substaniially  the  same  persons,  may  be  re- 
jected as  a  basis  for  ascertaining  the 
amount  due  the  car  company  for  the  use  of 
the  cars,  or  the  nature  of  the  obligations 
assumed  by  the  railroad  company,  or  by  the 
receiver  appointed,  pending  such  foreclo- 
sure; yet  the  lessor  company  is  entitled  to 
such  reasonalile  rent  as  it  could  obtain  in 
the  open  market  for  similar  cars  to  be  used 
in  the  same  manner.  Thomas  v.  Peoria  &> 
R.  I.  R.  Co..  36  Am.  <S»  Eng.  R.  Cas.  381,  36 
I'ed.  Rep.  808. — Quoting  Wardell  v.  Union 
Fac.  R.  Co.,  103  U.  S.  658. 

Parties  claiming  an  equitable  lien  upon 
rolling  stock  furnished  to  an  insolvent  cor- 
poration, by  virtue  and  to  the  extent  of  ad- 
vancements made  on  account  of  the  same, 
will  not  be  entitled  to  be  heard  upon  pe- 
tition pending  foreclosure  proceedings  upon 
a  mortgage  covering  the  rolling  stock  and 
all  other  property  of  the  corporation,  upon 
6  D.  R.  D.— 28. 


which  rolling  stock  other  liens  are  set  up  by 
answer,  claimed  to  be  paramount  to  the 
mortgage  of  the  complainants.  New  Jer- 
sey Midland  R.  Co.  v.  W  'ortendyke,  27  A'.  J. 
Eq.  658  ;  reversing  27  A'./.  Eg.  1 10. 

The  lien  of  a  debt  for  rolling  stock  upon 
the  foreclosure  sale  of  a  railroad  will  not  be 
transferred  from  the  corpus  of  the  mort- 
gaged premises  where  the  payment  under 
the  sale  is  constructive  merely.  Vilas  v. 
Page,  106  A'.  K.  439,  13  A'.  E.  Rep.  743,  12 
JV.  y.  S.  A".  864,  9  Cent.  Rep.  466 ;  ajfirmittg 
II  A^  1'.  S.  R.  416. 

The  order  creating  such  a  lien  was  duly 
made,  with  a  direction  that  it  be  entered  by 
the  clerk.  It  was  duly  filed  in  the  clerk's  of- 
fice and  the  date  of  filing  indorsed  thereon, 
but  through  mistake  on  his  part  it  was 
not  transcribed  on  the  records.  Held,  that 
the  order  became  eflective  as  an  authority 
to  the  receiver  upon  its  being  tiled,  and  this 
authority  was  not  aflected  by  the  failure  of 
the  clerk  to  enter  it.  Vilas  v.  Page,  xodN. 
Y'  439.  '3  A'.  E.  Rep.  743,  12  A^.  r.  S.  R. 
864,  9  Cent.  Rep. 466 ;  affirming  \\  N.  Y.  S. 
R.  416. 

After  the  beginning  of  a  railroad  fore- 
closure suit  and  the  appointment  of  a  re- 
ceiver plaintiff  intervened,  claiming  that 
certain  rolling  stock  was  only  leased  to  the 
company,  and  praying  (i)  that  the  receiver 
be  required  to  perform  the  covenants  of  the 
lease,  (2)  or  that  he  redeliver  the  rolling 
stock ;  (3)  that  the  receiver  be  required  to 
file  a  statement  showing  the  miles  run  and 
the  amount  received  for  the  use  of  the  cars ; 
(4)  and  for  a  reference  to  ascertain  the  value 
of  the  use  of  tha  cars  while  in  the  hands  of 
the  receiver.  The  court  directed  the  re- 
ceiver to  deliver  the  property  to  the  peti- 
tioner, and  referred  the  case  with  direction 
to  the  master  to  ascertain  and  report  the 
matters  generally  prayed  for,  and  to  "  de- 
termine and  report  upon  all  questions  and 
matters  between"  the  parties.  Held,  that 
this  was  not  a  final  decree  that  would  pre- 
vent the  court  from  subsequently,  on  the 
master's  report  and  answers,  finding  against 
the  petitioner  as  to  the  ownership  of  the 
property.  McGourkey  v.  Toledo  &>  O.  C.  R. 
Co.,  146  I/.  S.  536,  13  Sup.  a.  Rep.  170. 

ni.  EXECUTION;  REGISTRATION;  FILING. 

01.  Kxeciitioii,  ereiierally. — A  mort- 
gage executed  to  a  foreign  trust  company 
upon  a  railroad  in  Illinois  to  secure  bonds 
made  payable  out  of  the  state  is  not  pro- 


i 
I 


ji"'. 
¥ 

m 


\    \li 


III 

ill 


434 


MORTGAGES,  62-65. 


hibitca  or  made  invalid  by  the  law  of  pub- 
lic policy  of  the  state.  Ihrvey  v.  Illinois 
iMidland  K.  Co.,  28  Fed.  Rep.  169. 

Where  the  assistant  secretary  of  a  rail- 
road company  wiio  is  acting  as  secretary 
attaches  the  seal  of  tiie  company  to  mort- 
gages executed  by  it,  with  the  knowledge 
of  its  directors,  in  establishing  the  validity 
of  the  mortgage  it  is  not  necessary  that 
the  mortgagee  show  that  he  was  assistant 
secretary  de  jure.  Augusta,  T.  &*  G.  K.  Co. 
V.  Kiltel,  52  Fed.  Rep.  63,  2  U.  S.  App.  409, 
2  C.  C.  A.  615. 

A  general  power  given  to  a  railway  to 
mortgage  its  property,  without  specifying 
the  mode  of  acknowledging  or  recording 
tlie  same,  or  defining  the  effect  of  the  same, 
must  be  exercised  in  accordance  with  the 
general  laws  relating  to  mortgages,  and  the 
mortgage,  when  given,  will  be  governed  in 
like  manner  by  the  general  laws.  Palmer 
V.  Forbes,  23  ///.  301. 

02.  Ai'kiiowlcdgiiieiit.  —  Under  HI. 
Rev.  St.  1845,  cli.  57,  a  scire  facias  does  not 
lie  to  foreclose  a  mortgage  not  duly  ac- 
knowledged. The  statute  only  applies  to 
mortgages  "duly  executed  and  recorded." 
Kenosha  6-  A'.  R.  Co.  v.  Sperry,  3  Biss.  ( U, 
S.)  309. 

Defects  in  acknowledgments  of  mortgages 
cannot  be  cured  nor  supplied  by  evidence 
aliunde  ;  and  where  a  mortgage  is  not  ac- 
knowledged or  proved  according  to  law,  the 
defect  is  not  cured  by  notice  to  subsequent 
purchasers  or  creditors.  Kenosha  &*  R.  R. 
Co.  V.  sperry,  3  Hiss.  (U.  S.)  309. 

Where  a  railroad  company  is  organized 
under  the  laws  of  one  state,  and  all  its 
property  is  in  that  state,  the  president  of  the 
company  may  while  in  an  adjoining  state 
acknowledge  a  mortgage  of  its  property. 
Hodder  v.  Kentucky  &*  G.  E.  R.  Co.,  7  Fed. 
Rep.  793. 

A  mortgage  of  the  personal  property  of  a 
railroad  company  is  not  invalid  if  sworn  to 
by  the  agents  who  executed  it  because  they 
did  not  sign  the  oath  in  behalf  of  the  corpo- 
ration. Richards  v.  Merrimack  <S»  C.  R.  R. 
Co.,  44  N.  //.  127. 

A  mortgage  or  deed  of  trust  by  a  railroad 
corporation,  embracing  all  its  real  and  per- 
sonal property,  with  its  franchise,  made  in 
pursuance  of  express  authority  in  its  char- 
ter, and  recorded  in  each  county  through 
which  the  road  passes,  will  create  a  valid 
and  binding  lien  on  its  personal  as  well  as 
its  real  property,  notwitlistaiidin'j:  it  has  not 


been  acknowledged  in  accordance  with  the 
requirements  of  the  Chattel  Mortgage  Act. 
Tliat  act  has  no  bearing  whatever  upon, 
and  was  never  intended  to  apply  to,  railroad 
mortgages.  Cooper  v.  Cor/>in,  13  An/.S^  Eng. 
R.  Cas.  394,  105  ///.  224. 

63.  Delivery.— Where  a  mortgage  was 
duly  executed,  acknowledged,  and  recorded, 
and  the  corporation  treated  it  as  existing, 
this  was  sufficient  evidence  of  its  delivery, 
although  never  in  the  manual  possession  of 
the  trustee.  McCurdy's  Appeal,  65  Pa.  St. 
291. 

64.  Rntification  of  mortgage  exe- 
cuted without  authority.  —  Where  a 
corporation  passes  a  resolution  authorizing 
its  president  and  secretary  to  execute  a 
mortgage,  but  they  execute  one  exceeding 
their  authority,  the  purchase  of  the  bonds 
secured  by  the  mortgage  in  good  faith,  and 
the  acceptance  of  the  money  by  the  com- 
pany and  expending  it  in  the  construction 
of  its  road,  is  a  ratification  of  the  mortgage 
so  as  to  make  it  valid  as  executed.  Elwell 
V.  Grand  St.  &*  N.  R.  Co.,  67  Barb.  {N.  F.) 
83 ;  affirmed  in  67  Barb.  85  «. 

Where  bonds  are  issued  by  a  railroad,  se- 
cured by  a  mortgage,  and  the  bonds  nego- 
tiated, interest  paid  for  several  years,  and 
the  validity  of  the  mortgage  recognized  in 
various  other  ways,  this  is  a  ratification  of 
the  power  to  execute  it.  McCurdy's  Appeal, 
65  Pa.  St.  290. 

65.  Necessity  of  renri^tratlon.— 
Rolling  stock  and  other  property  strictly 
appurtenant  to  the  road  is  part  of  the  road 
and  covered  by  a  mortgage  thereof,  so  that 
if  the  mortgage  be  registered  as  a  real  es- 
tate mortgage,  it  is  sufficient ;  but  a  different 
rule  would  apply  to  fuel  or  other  personal 
property  which  is  used,  or  such  as  is  com- 
monly used,  for  other  than  railway  pur- 
poses. Such  property  is  liable  to  be  taken 
in  execution,  if  the  mortgage  is  not  properly 
recorded.  Farmers'  L.  &•  T.  Co,  v.  St. 
Joseph  Sr-  D.  C.  R.  Co.,  3  Dill.  (C/.  5.)  412, 
— Reviewed  in  Williamson  v.  New  Jersey 
Southern  R.  Co.,  29  N.  J.  Eq.  311. 

A  creditor  cannot  insist  that  a  mortgage 
given  by  a  company  is  void  for  the  omission 
to  register  it,  unless  this  ground  is  alleged 
in  the  bill ;  if  alleged,  the  defendant  has  the 
right  to  reply  notice  to  the  creditor.  Allen 
v.  Montgomery  R.  Co.,  11  Ala.  437. 

It  is  not  necessary  in  Louisiana  to  the 
validity  of  a  railway  mortgage,  given  to 
rni-c  money  for  construction  purposes,  that 


MORTGAGES,  66-69. 


436 


it  should  be  reinscribed.  Parker  v.  New 
Orleans,  B.  A'.  <S-  F.  A'.  Co.,  33  J'eii.  A'ep. 
693;  reverse:.'  .':•  143  U.  S.  42,  12  Sup.  Ct. 
Rep.  364. 

In  New  Jersey  railroad  mortgages  con- 
veying personal  property  are  not  governed 
by  the  statute  requiring  chattel  mortgages 
to  be  recorded  in  the  county  where  the 
property  is  situate,  but  are  governed  by 
section  86  of  the  general  act  relating  to 
railroads  and  canals.  Metropolitan  Trust 
Co.  V.  Pennsylvania,  S.  &*  N.  E.  R.  Co.,  25 
Fed.  Rep.  760.— Not  FOLLOWING  William- 
son V.  New  Jersey  Southern  R.  Co.,  28  N. 
J.  Eq.  277.  29  N.  J.  Eq.  337. 

<(0.  Place  of  rcKiMtratioii. — Where  a 
railroad  which  runs  through  several  coun- 
ties is  mortgaged,  but  the  mortgage  is 
only  recorded  in  one  county,  it  only  con- 
stitutes a  prior  lien  over  subsequent  judg- 
ments on  that  part  of  the  road  which  lies  in 
tiie  county  where  it  is  recorded.  Ludlow 
v.  Clinton  Line  R.  Co.,  i  Flipp.(U.  S.)  25. 

Montana  St.  of  1888,  §  1555,  provid- 
ing that  mortgages  executed  by  a  corpora- 
tion shall  be  recorded  in  every  county 
where  any  p<.it  of  the  property  is  situateiJ, 
and  be  accompanied  by  the  affidavit  re- 
quired by  section  1538,  does  not  repeal  the 
special  statute  found  in  section  706  relating 
to  mortgages  made  by  railroad  corpo  tions, 
and  providing  for  recording  them  in  the 
office  of  the  secretary  of  state.  Gilchrist 
V.  Helena,  H.  S.  6-  S.  R.  Co.,  47  Fed.  Rep. 

593. 

.A  Connecticut  corporation  executed  a 
mortgage  to  secure  its  bonds,  and  default 
having  occurred,  the  property  was  formally 
surrendered  to  plaintiff  as  trustee.  A 
sheriff  in  New  York  held  an  attachment, 
issued  in  an  action  against  the  corporation, 
and  levied  upon  certain  of  the  personal 
property  of  the  corporation,  when  the 
trustee  brought  an  action  to  recover  pos- 
session thereof.  Held,  that  in  the  absence 
of  proof  to  the  contrary  it  must  be  as- 
sumed that  the  property  was  in  Connecticut 
at  the  time  the  mortgage  was  executed,  and 
being  valid  where  executed,  it  was  immate- 
rial that  it  was  not  recorded  in  New  York. 
Nichols  v.  Mase,  17  Am.  &*  Eng.  R.  Cas. 
230,  94  N.  V.  160, 

07.  Filing,  Mrlien  necessary.  —  The 
fact  that  the  mortgagee  of  chattels  has 
taken  possession  of  them  under  his  mort- 
gage  before  judgment  recovered  will  not 
give  validity  to  a  prior  chattel  mortgage, 


as  against  an  execution  creditor,  where 
the  mortgage  has  not  been  filed  as  re- 
quired by  the  act,  and  was  not  accompanied 
by  an  immediate  delivery,  and  followed  by 
an  actual  and  continued  change  of  posses- 
sion, of  the  property  mortgaged.  In  this 
respect  a  distinction  is  made  in  the  act  be- 
tween creditors  of  the  mortgagor  and  sub- 
sequent purchasers  or  mortgagees.  Will- 
iamson V.  New  Jersey  Southern  R.  Co.,  29 
A^.  /.  £y.  31 1,  15  ^hn.  Ry.  Rep.  572 ;  revers- 
ing  28  N.J.  Eq.  278. 

An  execution  creditor,  having,  by  a  levy 
on  goods  and  chattels  covered  by  a  prior 
chattel  mortgage,  acquired  priority  over 
such  chattel  mortgage  by  reason  of  the 
failure  of  the  mortgagor  to  file  his  mortgage 
or  take  immediate  possession  of  the  prop- 
erty mortgaged,  is  not  deprived  of  his  pri- 
ority by  a  subsequent  act  of  the  legislature 
making  the  tiling  unnecessary  .when  tlie 
mortgage  is  registered  as  a  conveyance  of 
lands.  Williamson  v.  New  Jersey  Southern 
R.  Co.,  29  A^.  /.  Eq.  311,  15  Am.  Ry.  Rep. 
572 ;  reversing  28  N.  J.  Eq.  278. 

68. when    unnecessary.  —  The 

capital  stock  of  a  corporation  is  not  "  goods 
and  chattels "  within  the  meaning  of  the 
New  Jersey  act  concerning  chattel  mort- 
gages. Hence  a  mortgage  of  such  stock 
need  not  be  filed  in  accordance  with  the 
provisions  of  that  act,  Williamson  v. 
New  Jersey  Southern  R.  Co.,  26  A'^.  /.  Eq.  398. 

New  Jersey  Act  of  April  21,  1876,  pro- 
viding that  a  chattel  rnortgage  executed  by 
any  railroad  or  canal  company  shall  be  valid 
without  being  filed  as  a  chattel  mortgage, 
applies  to  mortgages  executed  before  its 
passage.     Kelly  v.  Boy  Ian,  32  N.  J.  Eq.   58 1 . 

A  railroad  company  executed  a  mortgage 
on  its  property,  when  the  statute  12  Vict.  c. 
74  was  in  force,  which  provided  that  every 
chattel  mortgage,  where  possession  was  not 
delivered,  should,  to  be  valid  as  against  cred- 
itors, be  duly  filed  for  registry,  and  refiled 
from  year  to  year.  This  statute  was  com- 
plied with  until  the  passage  of  20  Vict.  c.  3, 
which  repealed  the  former  statute,  and  pro- 
vided that  mortgages  which  were  duly  reg- 
istered under  the  former  statute  should  be 
as  valid  as  if  that  statute  had  not  been  re- 
pealed. Held,  that  after  the  passage  of  the 
repealing  statute  refiling  was  not  necessary 
to  keep  the  mortgage  valid.  Grand  Trunk 
R.  Co.  Vf  Lees,  9  U.  C.  C.  P.  249. 

69.  Effect  of  registration.  —  The 
registration   of    a   railroad    mortgnge    not 


W 


'i    /I 


!  ! 


436 


MORTGAGES,  70-74. 


:rr. 


v. 


:•■.■  I. 


properly  executed  so  as  to  entitle  it  to  be 
registered  is  not  in  itself  notice  to  parties 
subsequently  acquirin'  rights  in  the  prop- 
erty ;  but  where  it  is  ..  deed  of  trust,  and 
not  strictly  a  mortgage,  its  execution  and 
acknowledgment  in  the  manner  and  form 
as  required  in  the  case  of  deeds  is  suffi- 
cient. Branch  v.  Atlantic  ijr'  G,  R.  Co.,  3 
li'oiu/s  (l/.  6'.)  481. 

A  mortgage  to  secure  a  loan  not  made  at 
the  date  of  the  mortgage  is  an  obligation 
subject  to  a  protesiative  condition  on  the 
pan  of  the  debtor.  Such  a  mortgage  does 
not  lake  effect  from  the  date  of  the  registry. 
It  has  effect  only  from  the  date,  and  for  the 
amount,  of  the  loan.  Meeker  v.  Clinton  6- 
P.  H.  R.  Co.,  2  La.  Ann.  971.— Followed 
IN  Langtitt  v.  Brown,  5  La.  Ann.  231. 

Where  a  railroad  corporation  is  author- 
ized to  mortgage,  for  stated  purposes,  its 
road,  completed  or  not,  a  recorded  mort- 
gage will  attach  to  after-acquired  property, 
and  the  purchaser  of  such  property  under  a 
foreclosure  sale  cannot  be  affected  by  a 
judgment  obtained  against  the  corporation 
after  the  recording  of  the  mortgage.  Bell 
V.  C/iicago,  St.  L.  &*  N.  O.  R.  Co.,  34  La. 
Ann.  785. — Following  Dunham  v.  Cincin- 
nati, P.  &  C.  R.  Co..  I  Wall.  (U.  S.)  254.— 
Reviewed  in  New  Orleans  &  P.  R.  Co.  v. 
Union  Trust  Co.,  43  Am.  &  Eng.  R.  Cas. 
458.  41  Fed.  Rep.  717. 

70.  Bona  fide  purclmser— Notice- 
Where  the  judgment  creditor  of  a  railroad 
company  h&s  actual  notice  of  a  mortgage, 
executed  by  the  company,  before  his  judg- 
ment is  rendered,  it  is  immaterial  that  he 
has  not  received  record  notice,  and  his 
assignee  takes  subject  to  the  same  equity 
with  respect  to  the  prior  mortgage  creditors 
of  the  company.  Butler  v.  Rahm,  46  Md. 
541.  \Z  Am.  Ry.  Rep.  86. 

Where,  in  an  action  to  foreclose  an  un- 
recorded mortgage  against  a  subsequent 
purchaser  of  the  mortgaged  premises,  the 
defense  is  that  of  purchase  for  a  valuable 
consideration  without  notice,  it  will  not 
:.\ail  if  the  consideration  consisted  in 
merely  giving  credit  for  the  amount  of  the 
purchase  money  on  claims  held  by  the 
purch.iser  against  the  vendor.  Zorn  v. 
Savannah  &*  C.  R.  Co.,  5  So.  Car.  90. 

IV.  VALIDITT,  IHTEBFRETATIOH,  AHD 
EFFECT. 

I.  In  General. 
7t.  Validity,  generally. —  A  mort- 
gage ot  a  railroad  to  secure  bonds  to  be  is- 


sued to  raise  money  to  pay  the  debts  of  the 
corporation  is  not  invalid  as  given  to  se- 
cure future  advances.  Richards  v.  Merri- 
mack &*  C.  R.  R.  Co.,  44  A'.  //.  1 27. 

Where  a  company  is  organized  for  th« 
declared  purpose  of  owning  and  completing 
a  designated  railroad,  and  the  president  and 
vice-president  of  the  road  become  secret 
members  of  the  new  company,  and  execute 
a  mortgage  of  the  road  thereto,  it  will  be 
held  fraudulent ;  but  in  a  proceeding  in 
bankruptcy  the  new  company  will  be  per- 
mitted to  prove,  as  an  unsecured  debt,  any 
advances  which  it  has  made  to  the  other 
company.  Kappner  v.  St.  Louis  &*  St.  J. 
R.  Assoc,  3  Dill.  (U.  S.)  228. 

72.  What  coiiHtitiiteM  a  iiiortKage. 
— A  railroad  corporation  made  a  contract 
with  M.  for  the  construction  of  its  road, 
and  gave  him  a  conveyance  of  its  property 
containing  certain  conditions  and  provi- 
sions. Held,  that  the  conveyance  was  not 
a  deed  of  trust,  but  a  mortgage.  Mason  v. 
york  &*  C.  R.  Co.,  52  Me.  82. 

After  a  transfer  by  M.  of  any  bonds  of 
the  corporation  he  held  the  legal  title  as 
mortgagee  for  his  remaining  interest,  and  in 
trust  for  the  other  bondholders.  Mason  v. 
York  &*  C.  R.  Co.,  52  Me.  82. 

An  agreement  (set  forth  in  the  opinion) 
between  the  plaintiff,  a  railroad  corporation, 
and  its  individual  stockholders,  whereby 
certain  rights  were  conferred  upon  the  lat- 
ter in  respect  to  a  portion  of  the  lands 
(land  grant)  of  the  corporation,  considered, 
and  construed  as  not  bearing  upon  its  face 
the  legal  import  of  absolutely  conferring 
upon  the  stockholders  the  legal  or  equita- 
ble title  to  the  land,  but  rather  as  affording 
a  security  in  the  nature  of  a  mortgage.  St. 
Paul  &*  S.  C.  R.  Co.  V.  McDonald,  22  Am. 
&*  Eng.  R.  Cas.  208,  34  Minn.  182,  25  N. 
W.  Rep.  57. 

73.  CoiiHideratioii. — It  is  a  sufficient 
consideration  for  a  deed  of  mortgage  by  a 
railroad  company  that  it  is  to  secure  bonds; 
and  it  can  properly  be  made  to  third  per- 
sons as  trustees  for  whomsoever  may  be- 
come holders  of  the  bonds.  Butler  v. 
Rahm,  46  Md.  541,  18  Am.  Ry.  Rep.  86. 

74.  How  construed,  generally.— 
The  validity  and  effect  of  railroad  mortgages 
must  be  determined  by  their  respective  char- 
ters so  far  as  they  supersede  the  general  laws. 
But  the  general  laws  will  be  applied  to  the 
construction  and  enforcement  of  all  lawful 
contracts  unless  tlicy  are  superseded  or 
suspended  by  special  legislation.    Neioport 


1" 


MORTGAGES,  75. 


437 


^  C.  Bri(ige  Co,  v.  Douglass,  I2  Bush  (A>.) 
673,  18  Am.  Ny.  Rep.  221. 

Where  a  coinpuiiy  executes  a  mortgage 
to  secure  its  bonds,  and  a  bond  is  issued 
with  a  certificate  thereon  that  it  is  secured 
l>y  the  inortga(i;e,  the  mortgage,  the  bond, 
and  the  certificate  will  be  construed  to- 
j,'L'tli(r  as  parts  of  the  same  security.  /jV«- 
jixmin  V.  Elmira,  J.  &*  C.  R,  Co.,  4^  Barb. 
(A'.  1'.)  441  ;  affirmed  (?)  in  54  A'.  Y.  675, 
iiit-m. 

Wljcre  a  mortgage  given  by  a  company,  in 
pursuance  of  a  resolution  of  the  directors 
to  render  etTectual  what  was  attempted 
to  be  done  by  a  former  one  whose  validity 
is  doubted,  contains  no  reference  to  the 
former  mortgage,  and  neither  the  resolution 
nor  the  second  mortgage  expresses  an  in- 
tention that  the  latter  shall  cover  the  same 
property  as  tlie  first,  the  description  in  the 
second  cannot  be  aided  by  that  in  the  first. 
Mcllhenny  v.  Binz,  80  Tex.  i,  13  S.  IV. 
Rep.  655. 

B.,  the  contractor  for  the  construction  of 
a  road,  being  unable  to  obtain  the  iron 
necessary  on  his  own  credit,  authorized  the 
company  to  negotiate  for  its  purchase,  who 
contracted  with  C.  to  furnish  it,  the  iron  to 
be  paid  for  as  delivered  on  the  wharf  at 
Helleviile  by  the  notes  of  B.,  and  a  credit  of 
six  months  to  be  given  from  the  time  of  the 
several  deliveries.  B.  also  agreed  to  ob- 
tain from  thecompa-iy  an  irrevocable  power 
of  attorney  enabling  the  Bank  of  Montreal, 
who  advanced  to  C.  the  money  to  buy  the 
iron,  to  receive  the  government  and  mu- 
liicipai  bonuses,  and  to  procure  from  the 
<;<)mpany  a  mortgage  for  $200,000  on  that 
portion  of  their  road  (forty-four  miles)  on 
which  the  iron  was  to  be  laid,  the  mortgage 
to  be  sufficient  in  law  to  create  a  lien  on  the 
fi)ity-four  miles  of  railroad,  as  security  for 
the  due  payment  of  the  notes  of  the  said 
H.,  I)ut  not  to  contain  a  covenant  for  pay- 
ment by  the  company.  A  power  of  attor- 
ney, upon  which  was  indorsed  by  B.  a  writ- 
ten request  to  the  company  to  give  the  said 
power  of  attorney,  and  a  mortgage,  upon 
which  also  was  indorsed  by  B.  a  request  to 
grant  the  said  mortgage,  were  executed  by 
the  company  to  one  D.,  then  manager  of 
the  Rank  of  Montreal,  as  a  trustee.  The 
bank  having  made  advances  to  C.  to  enable 
liini  to  purchase  the  iron,  it  was  all  con- 
si<,'ned  to  their  order  by  the  bills  of  lading, 
and.  when  delivered  on  the  wharf  at  Belle- 
ville, was  held  by  the  wharfingers  subject  to 


the  order  of  the  bank,  the  whole  quantity 
stipulated  for  by  the  contract  being  so  de- 
livered, ready  for  laying  on  the  track,  as  re- 
quired. The  bank  and  C.  caused  to  be 
delivjred  from  time  to  time  to  B.  by  the 
wharfingers  all  the  iron  required  to  lay  on 
the  track,  being  about  2000  tons,  and  about 
an  equal  quantity  remained  on  the  wharf 
unused.  B.  having  failed  to  meet  his  prom- 
issory notes,  C.  recovered  judgment  at  law 
against  him  to  the  amount  of  $164,852.96. 
The  bank  then  sold  the  iron  remaining  on 
the  wharf  for  the  purpose  of  realizing  their 
lien,  when  C.  became  the  purchaser  and  was 
removing  the  said  iron  when  the  company 
tiled  a  bill  asking  injunction  to  restrain  the 
removal  of  the  iron.  Held,  that  the  proviso 
in  the  mortgage  was  in  its  terms  wide 
enough  for  the  mortgagee  to  claim  the  price 
of  all  the  iron  delivered  on  the  wharf  at 
Belleville,  and  that  the  memorandum  in- 
dorsed by  B.  on  the  mortgage  shouli  not 
be  construed  as  cutting  down  the  terms  of 
the  proviso,  but  was  intended  as  written 
evidence  of  B.'s  consent  to  the  mortgage, 
and  to  the  loss  of  priority  in  respect  of  the 
mortgage  bonds  to  be  delivered  to  him 
under  the  contract.  Bickford  v.  Grand 
Junction  R.  Co.,  1  Can.  Sup.  Ct.  696. 

75.  What  title  yuHses.  —  Where  a 
company  mortgages  lands  which  have  been 
granted  to  it  by  the  state  as  swamp  lands 
received  from  the  general  government,  and 
the  mortgage  conveys  "  all  and  any  interest " 
that  the  company  may  have  in  the  land,  the 
mortgage  passes  whatever  title  the  com- 
pany has;  and  if  it  has  only  an  equitable 
title,  that  passes.  Augusta,  T,  <S-  G.  R.  Co. 
V.  Kit t el,  52  Fed.  Rep.  63,  2  U.  S.  App.  409. 
2  C.  C.  A.  615.— Following  Toledo,  D.  & 
B.  R.  Co.  V.  Hamilton,  134  U.  S.  296,  10 
Sup.  Ct.  Rep.  546;  Central  Trust  Co.  v. 
Kneeland,  138  U.  S.  414,  u   Sup.  Ct.  Rep. 

357. 

A  mortgage  deed  to  trustees  for  bond- 
holders from  which  words  of  inheritance 
have  been  inadvertently  omitted  will  be 
reformed  as  against  subsequent  encum- 
brancers and  purchasers  with  notice. 
Whether  a  fee  is  intended  to  pass  or  not 
may  be  gathered  from  its  provisions,  in  the 
absence  of  words  of  inheritance.  Randolph 
V.  New  Jersey  W.  L.  R.  Co.,  28  A'^  /.  Eq.  49, 
14  Am.  Ry.  Rep.  11. 

Where  the  mortgage  has  been  recorded 
in  full,  and  its  provisions  require  that  the 
trustees  should  have  an  estate  in  fee  simple 


'vfe  ,  I 


438 


MORTGAGES,  70-78. 


.'■  ; 


i^tt- 


in  order  to  execute  them,  the  record  is  notice 
that  the  niortga(;e  was  intended  to  pass  a  fee. 
Kandolph  v.  New  Jersey  W.  L.  K.  Co.,  28  A'. 
/.  Kq.  49,  14  Am.  liy.  Nep.  11. 

70.  ItiKhtH  oi'  tilt!  partioM,  gener- 
ally.—  A  railroad  company  has  not  the 
right  to  take  up  a  part  of  the  railroad  mort- 
gaged, even  though  it  is  not  self-sustaining, 
but  an  expense  to  other  roads  of  the  com- 
pany, or  although  the  plaintiti  has  other 
and  ample  security,  or  although  the  object 
is  to  sell  the  rails  and  appropriate  the  pro- 
ceeds in  liquidation  of  the  mortgage.  Watt 
V.  Pa-isen^er  R.  Co.,  6  Phila.  (I'a.)  386. 

If  the  mortgage  cover  the  road,  the  com- 
pany has  no  right  to  touch  it  save  for 
proper  repair  and  lawful  use.  Watt  v. 
Passenger  R.  Co.,  6  Phila.  (Pa.)  386. 

The  fact  that  the  legislature  authorizes  a 
company  to  mortgage  its  road  and  franchises 
does  not  give  the  mortgagee  any  greater 
rights  than  the  mortgagor  had,  nor  take 
away  the  power  of  the  legislature  to  alter 
or  modify  the  franchises  granted.  Attorney- 
General  v.  Chicago  &•  N.  W.  R.  Co.,  35  ^rw, 
435. 

41  Vict.  c.  27,  D,  does  not  give  the  mort- 
gagees, under  the  arrangement  sanctioned 
thereby,  any  power  to  destroy  a  farm  cross- 
ing given  in  consideration  of  the  purciiase 
of  land  by  the  railway,  or  authorize  them  to 
interfere  with  rights  which  the  railway  com- 
pany are  bound  to  respect.  Clause  v.  Can- 
ada Southern  R.  Co.,  14  Am.  &•  Eng.  R. 
Cas.  456,  4  Ont.  28. 

77.  Ki{;Iit!«  of  boiidliolders.— Where 
a  company  is  chartered  with  power  to  take 
private  property  and  to  construct  and  op- 
erate its  road,  the  authority  given  is  in  the 
first  instance  permissive  merely,  and  no  ob- 
ligation rests  upon  the  company  to  exercise 
the  powers  granted.  But  where  the  com- 
pany has  taken  private  property  and  con- 
structed its  road,  it  has  come  under  an 
obligation  to  carry  into  effect  the  objects  of 
its  ciiarter,  and  its  capital  stock,  franchises, 
and  property  stand  charged  primarily  with 
this  public  trust.  Where  such  a  company 
is  empowered  to  issue  bonds  and  secure 
them  by  a  mortgage  of  its  franchise  and  all 
its  property,  the  mortgagees  take  the  mort- 
gage subject  to  this  trust.  Gates  v.  Boston 
6f  N.  Y.  A.  L.  R.  Co.,  24  Am.  &•  Eng.  R.  Cas. 
143.  53  Conn.  333,  5  Atl.  Rep.  695.— Quoted 
IN  State  V.  East  Line  &  R.  R.  R,  Co.,  (Tex.) 
48  Am.  &  Eng.  R.  Cas.  656. 

Where  a  railroad  mortgage  is  given  to 


secure  its  bonds,  and  contains  a  provision 
that  covenants  therein  shall  enure  to  the 
benefit  ol  successive  bondholders,  and  the 
bonds  are  negotiable,  a  first  holder  of  bonds 
cannot  enter  into  any  agreement  with  the 
company  or  its  officers  which  will  abrogate 
such  covenants,  so  as  to  bind  subsequent 
purchasers  of  the  bonds  before  maturity. 
lielden  v.  Burke.  25  N.  Y.  Supp.  601,  72 
Hun  51. 

Where  such  mortgage  recites  that  the 
trustee  shall  hold  the  property  for  the  bene- 
fit of  bondholders,  and  that  the  proceeds 
of  a  certain  proportion  of  the  bonds  shall 
be  used  in  the  improvement  of  the  property, 
the  first  or  subsequent  botidholders  cannot 
waive  these  provisions  so  as  to  diminish 
the  security  of  any  subsequent  holder. 
Belden  v.  Burke,  25  N,  Y.  Supp.  601,  72 
Hun  jr. 

A  mortgage  made  to  secure  the  payment 
of  certain  bonds  is  made  for  the  benefit  of 
the  bondholders  only,  and  no  one  can  have 
an  interest  in  the  mortgage  except  as  a 
bondholder.  Rice  v.  Southern  Pa.  J.  &^  R. 
Co.,  9  Phila.  (Pa.)  294. 

78.  DeNcriptioii  of  the  property 
iiiortjfaifecl.— Where  a  railroad  mortgage 
first  describes  the  property  conveyed  in  gen- 
eral terms,  and  then  describes  each  partic- 
ular thing  conveyed,  the  latter  description 
will  prevail,  where  there  is  a  repugnancy 
between  the  two.  Pullan  v.  Cincinnati  &* 
C.  A.  L.  R.  Co.,  4  Biss.  (U.  S.)  35. 

Where  a  company  is  authorized  to  take 
or  hold  lands  for  a  right  of  way  not  exceed- 
ing six  rods  in  width,  a  mortgage  of  its 
right  of  way  then  owned  or  thereafter  ac- 
quired will  be  deemed  as  referring  to  a 
strip  of  the  above  width,  and  is  a  sufficient 
designation  of  the  property.  Seymour  v. 
Canandaigua  &>  N.  F.  R.  Co.,  14  How.  Pr. 
(N.   1'.)  531,  2$  Bard.  284. 

A  company  advertised  its  bonds  for  sale 
of  a  proposed  road  "  about  fifty  miles  long." 
The  mortgage  given  to  secure  these  bonds 
described  the  road  to  be  built  between  des- 
ignated points  "  by  the  most  practicable 
route  not  to  exceed  fifty  miles  in  length." 
Tlu;  road  when  built  was  but  twenty-nine 
miles  long.  Held,  in  a  suit  by  a  bondholder 
for  fraudulent  representations  in  the  adver- 
tisement as  to  the  length  of  the  road,  that 
the  description  of  the  length  of  the  road 
given  in  the  mortgage  must  control.  Fan 
Weel  v.  Winston,  24  Am.  &•  Eng.  R.  Cas. 
179,  115  U.  S.  228,  6  Sup.  Ct.  Rep.  22. 


ision 

the 

the 

onds 

the 

)Kate 

|uent 

irity. 

I.  72 


MORTGAGES,  71>,  80. 


430 


A  mortgage  after  describing  sevcriii  pieces 
of  land  contained  tlie  fullowin)^ description: 
"  Also  all  the  real  property  of  said  party  of 
the  first  part  to  which  said  party  lias  any 
ri^lit,  title,  or  interest,  legal  or  equitable,  in 
either  of  the  counties  of  SaraKjga  •  ♦  ♦ 
and  particularly  all  lands  immediately  ad- 
joining the  line  of  said  road,  and  which  are 
designed  or  intended  to  be  used  in  operating 
the  said  railroad,  or  in  carrying  on' the  busi- 
ness of  sail!  company,  as  land  for  depots, 
engine,  car,  or  freight  houses,  or  the  like, 
and  all  buildings  and  structures  placed  or 
to  be  placed  on  the  line  of  said  railroad,  on 
any  such  lands  as  aforesaid."  Held,  a  de- 
scription sufficient  to  enable  a  purchaser  at 
a  foreclosure  sale  to  maintain  ejectment 
for  the  lands.  Durant  v.  Kenyan,  32  Hun 
(.V.  }'.)634. 

A  deed  describing  the  property  conveyed 
as  "  the  following  articles  of  personal  prop- 
erty, to  wit,  300  railroad  ties,"  to  be  deliv- 
ered at  a  certain  price,  is  not  sufficiently 
definite  to  pass  the  title.  Sti'p/ifiison  v.  Sea- 
hotipui &*  A'.  A'.  Co.,  II  Ami.  &•  K»g.  A'.  Cas. 
299,  86  A^.  Car.  1,55. 

79.  The  d«ot  t*eciired.— A  construc- 
tion contract  may  be  secured  by  a  mortgage, 
and  the  bonds  have  priority  in  payment  from 
the  avails  of  the  mortgaged  property  over 
the  contract.  Mason  v.  y'ori-  <S«'  C.  A\  Co., 
52  J/e.  82. 

Monds  not "  issued  by  the  previous  spe- 
o  '-'He  of  the  directors."  but  afterwards 
raiiiicti  and  approved  by  the  corporation, 
and  received  and  applied  in  accordance  with 
tile  ter'  .  of  the  contract,  are  secured  by  the 
niorti;,  _,..  Mason  v.  York  &*  C.  A'.  Co.,  52 
Me.  82. 

The  claim  of  an  indorser  of  company 
notes,  the  avails  of  which  were  applied  in 
part  payment  of  the  -ontract,  is  not  secured 
by  the  mortgage.  .  lason  v.  York  &*  C.  Ji. 
Co.,  52  Me.  82. 

Mortgage  bonds  of  a  railroad  company 
dated  Oct.  i,  1871 — /telci,  to  be  embraced  in 
a  deed  of  mortgage  dated  Oct.  25,  i87i,the 
bonds  being  in  o  <r  respects  clearly  de- 
scribed in  the  deed,  and  there  being  nothing 
in  the  terms  of  the  deed  inconsistent  with 
the  fact  that  they  had  been  before  executed, 
and,  furthermore,  any  doubt  being  removed 
by  parol  evidence  that  no  other  bonds  were 
executed  or  issued  by  the  company  except 
those  so  dated.  Butler  v.  liahnt,  46  Md. 
541.  18  Am.  A'y.  Hep.  86. 

Where  the  president  of  a  railroad  received 


the  notes  of  the  corporation  secured  by  its 
bonds  delivered  as  collateral  for  a  sum  due 
him  upon  his  salary,  such  a  debt  fairly  and 
honestly  incurred  could  be  so  secured  ;  and 
he  was  entitled  to  prove  such  bonds.  Su 
also  one  to  whom  bonds  were  pledged  as 
security  for  an  indebtedness  for  rent  of 
offices  is  entitled  to  prove  them  ;  a  business 
office  was  essential  and  necessary,  and  was 
embraced  within  the  authority  to  issue 
bonds.  Duncomb  v.  A'eiv  York,  H.  Sf  N, 
R.  Co.,  4  Am.  Sf*  Bug.  R.  Cas.  293,  84 yV.  Y. 
190  ;  rerersing  23  Hun  291. 

A  railroad  contractor  bought  iron  for  the 
road,  giving  his  notes  therefor,  which  the 
company  secured  collaterally  by  a  mortgage. 
Held,  that  the  liability  of  the  company  under 
the  mortgage  was  not  limited  to  its  liability 
to  the  contractor  for  work  done.  Grand 
Junction  K.  Co.  v.  Bickfotd.  23  Grant's  Ch. 
{U.  0302. 

80.  ProvisiuiiM  ns  to  time  of  pay- 
iiiciit  or  iiiittiirity.— Where  a  statute  au- 
thorizes a  railroad  to  issue  bonds  not  to  ma- 
ture in  less  than  thirty  yeats.and  to  mortgage 
its  road  to  secure  them,  a  provision  in  the 
mortgage  that  on  default  in  paying  any  in- 
terest coupon  the  whole  of  the  principal 
should  become  due  is  void  ;  but  this  does 
not  affect  the  mortgage  in  other  respects. 
Hojoell  V.  Western  K.  Co.,  94  U.  S.  463.— Al»- 
PROVK.I)  IN  Central  Trust  Co.  v.  New  York, 
C.&  N.  R.  Co.,  33  Hun  (N.  Y.)  513. 

When  there  is  a  discrepancy  between  the 
terms  of  the  bond  and  of  the  mortgage,  the 
bond  being  the  principal  thing  containing 
the  obligation  of  the  company,  and  the 
mortgage  a  mere  security  to  ensure  the  per- 
formance of  that  obligation,  the  terms  of 
the  bonds  should  control.  Indiana  &*  I.  C. 
A\  Co.  V.  Spraj,'ue,  2  Am.  &"  Eni^.  A*.  Cas. 
532,  103  U.  S.  756. 

Where  the  bond  contains  a  statement  that 
upon  default  in  payment  of  interest  for  six 
months  the  principal  shall  become  due  upon 
demand,  the  presence  of  two  past-due  cou- 
pons upon  the  bond  is  not.of  itself  sufficient 
evidence  of  the  dishonor  of  the  bonds  to 
which  they  were  attached.  Indiana  &•  I. 
C.  A'.  Co.  V.  Sprai^ue,  2  Am.  <S~»  Enj,'.  A'.  Cas. 
532,  103  U.  S.  756. 

A  mortgage  given  by  a  railroad  provided 
that  the  principal  should  become  due  for  the 
purposes  of  foreclosure  upon  a  default  in 
interest  continuing  for  sixty  days.  Held, 
that  the  trustees  might  proceed  for  the  col- 
lection of  the  whole  amount  of  principal  and 


^rm 


yf.: 


I 


I  • 


^M-   'ti: 


440 


MORTGAGES,  81-83. 


interest  by  a  bill  in  equity  without  a  formal 
declaration  of  the  maturity  of  the  principal, 
Morgan's  L.  tS-  7'.  A\  6^  S.  Co.  v.  Tt'.tvij  C. 
A\  Co.,  45  ^/w.  <&*  fSn^r,  y^\  Cas.  631,  137  U. 
S.  171,  II  Sup.  Ct.  Rfp.  61.— Distinguish- 
ing Chicago  &  V.  R.  Co.  v.  Fosdick,  106  U. 
S.  47- 

Powers  given  by  the  terms  of  a  mortgage 
to  the  trustee,  after  default  for  a  stated 
period  in  the  payment  of  interest,  to  take 
possession  of  the  mortgaged  property  and 
sell  the  same,  and  apply  the  proceeds  to  the 
payment  of  interest  and  principal,  do  not 
change  the  construction  of  the  mortgage  as 
to  the  time  when  the  principal  becomes  due 
so  as  to  authorize  a  foreclosure  for  the  prin- 
cipal as  '.veil  as  interest,  McFniiden  v. 
May's  Landing  &*  E.  H.  C.  R.  Co.,  49  A^.  J. 
Eg.  176,  22  Atl.  Rep.  932. 

81.  CuveiinntH  as  to  uppliciitlon  of 
proceeds.— Where  a  railroad  mortgage 
provides  that  a  certain  share  of  the  pro- 
ceeds of  the  bonds  secure*!  by  a  mortgage 
shall  be  used  in  laying  a  double  track  and 
otherwise  improving  the  road,  and  in  pur- 
chasing real  estate  and  other  property  such 
as  the  company  may  require,  it  is  a  fraud  on 
the  bondholders  for  the  stockholders  or 
officers  of  the  company  to  divert  such  pro- 
ceeds to  their  individual  use.  Belden  v. 
Burke,  25  A',  Y.  Supp.  601,  72  Hun  51, 

Where  a  mortgage  provides  that  the  trus- 
tee is  to  hold  for  the  benefit  of  the  bond- 
holders, and  that  he  shall  certify  bonds,  and 
deliver  a  specified  portion  to  certain  officers 
of  the  company,  who  shall  apply  the  pro- 
ceeds to  the  improvement  of  the  property, 
such  provisions  become  operative  and  bind- 
ing on  the  company  as  soon  as  the  bonds 
are  so  certified  and  delivered.  Belden  v, 
Burke,  z%  N.   Y.  Supp.  601,  72  Hun  51. 

And  the  provision  to  use  the  proceeds  of 
such  bonds  for  the  improvement  of  the 
property  creates  a  trust,  which  may  be 
enforced  against  the  company  either  by  the 
trustee,  or  a  bondholder,  if  the  trustee  re- 
fuses to  act.  Belden  v.  But  ke,  25  A^.  Y. 
Supp.  601,  72  Hun  51. 

The  application  of  such  proceeds  by  such 
officers  to  the  repayment  of  a  loan,  and  in 
acquiring  stock  of  the  company,  is  a  breach 
of  the  covenant  to  use  such  proceeds  in  im- 
proving the  property;  and  it  is  likewise  a 
breach  of  such  covenant  for  such  officers  to 
use  such  proceeds  in  paying  for  coal  lands, 
which  they  had  bought  and  sold  to  the  com- 
pany, where  they  were  embraced   in  the 


mortgage.    Belden  v.  Burke,  25  A',  Y.  Supp. 
601,  72  J/un  51. 

The  investment  of  a  part  of  su  ;.  proceeds 
in  stock  of  a  coal  company  is  not  the  acqui- 
sition of  "other  property,"  within  the 
meaning  of  the  provisions  of  the  mortgage, 
Belden  v,  Burke,  25  iV,  Y.  Supp.  601,  72 
Hun  51. 

82.  Stipulation  relative  to  taxes.— 
The  clause  in  a  mortgage  that  the  payment 
shall  be  "  without  any  deduction,  defalcation, 
or  abatement  for  any  taxes  whatsoever  "  is 
a  stipulation  to  pay  the  taxes  on  the  land 
mortgaged,  not  on  the  debt  secured.  Clop- 
ton  V.  Philadelphia  &»  R.  R.  Co.,  54  Pa.  St. 
356. 

83.  Reservations  in  favor  of  the 
niorttpi{;or.— Where  a  company  executes 
a  mortgage  which  allows  the  company  to 
receive  the  earnings  of  the  road  while  it 
remains  in  possession,  such  possession  gives 
the  company  the  right  to  the  whole  fund 
received,  and  renders  such  fund  liable  to 
be  taken  by  creditors  as  if  the  mortgage 
had  not  been  n'iade.  Gilman  v.  Hlinois  &- 
M.  Tel.  Co.,  91  U.  S.  603.— Approving 
Galveston,  H.  &  H.  R.  Co.  v.  Cowdrey,  11 
Wall.  (U.S.)  459.— Distinguished  in  Sun- 
flower Oil  Co.  V.  Wilson,  48  Am.  &  Eng.  R. 
Cas.  664,  142  U.  S.  "'■?.  Followed  in 
Mercantile  Trust  Co  .  Missouri,  K.  &  T. 
R.  Co.,  36  Am.  &  Eng.  R.  Cas.  259,  36  Fed, 
Rep.  221.  Quoted  in  Frayser  v.  Rich- 
mond &  A.  R.  Co.,  25  Am.  &  Eng.  R,  Cas. 
597,  81  Va.  388:  Gibert  v.  Washington  City, 
V.  M.  &  G.  S.  R.  Co..  33  Gratt.  (Va.)  645  ; 
Mississippi  Valley  &  W.  R.  Co.  v.  United 
States  Exp.  Co.,  81  111.  574. 

A  mortgage  of  the  revenues  and  property 
of  a  railroad  company  contained  the  follow- 
ing proviso :  "  All  of  the  rights  of  the 
bondholders  or  trustees  are  subject  to  the 
pfjssession,  control,  and  management  of  the 
directors  of  said  company,  until  default," 
etc.  Held,  that  this  proviso  did  not  give 
the  creditors  of  the  corporation  under  con- 
tracts made  before  default,  but  after  the 
execution  of  the  mortgage,  a  preference 
over  the  mortgage  liens.  Dunham  v.  /sett, 
15  Iowa  284. 

A  railroad  mortgage  contained  the  fol- 
lowing provision:  "  But  nothing  herein  con- 
tained shall  prevent  the  said  company,  before 
default  in  the  payment  of  any  of  the  said 
bonds  or  the  interest  due  thereon,  from 
selling,  hypothecating,  or  otherwi.se  dispos- 
ing of  any  of   their  said  property,  real   or 


MORTGAGES,  84-86. 


441 


[icrsonal,  not  necessary  in  their  judgmeiit 
lor  I  he  use  of  thr  3aid  road,  nor  from  col- 
lecting and  applying  any  money  due  to  the 
said  company  from  any  source  whatever, 
provided  said  application  shall  not  be  to  the 
]>icjudice  of  any  holder  of  any  of  the  said 
bonds."  Held,  that,  however  suspicious 
the  power  here  given  might  be  in  the  casj 
of  a  mortgage  of  ordinary  goods,  the  very 
nature  of  the  mortgagor's  business,  the 
means  and  power  necessary  to  keep  it  up, 
tiie  wear  and  tear  of  its  iron,  ties,  and  roll- 
ing stock,  the  constant  necessity  cf  replac- 
ing injured  or  worn-out  appurtenances  with 
new,  forbade  the  inference  of  a  fraudulent 
purpose,  which  might  arise  from  such  a  pro- 
vision under  other  circumstances.  lUitler 
v.  Kahm,  46  Aid.  541,  18  Am.  Ky.  Rep.  86. 

.\  railroad  corporation  to  secure  its 
bonds  made  a  mortgage  by  which  it  con- 
veyed to  the  trustees  all  the  property,  the 
indenture  being  on  the  conditions  that  until 
default  the  use  of  the  granted  premises 
should  remain  with  the  corporation,  and 
providing  that  on  a  default  continuing  for 
six  months  the  trustees  should  operate  the 
road,  collect  the  income,  and  apply  the 
receipts  in  carrying  on  the  business.  The 
trustees  took  possession  under  the  provi- 
sions of  the  indenture.  Held,  that  they  were 
not  bound  by  a  contract,  concerning  the 
carrying  of  express  matter,  entered  into  by 
the  railroad  corporation  after  the  making 
of  the  indenture  with  one  who  had  notice 
thereof.  Ellis  v.  Boston,  H.  <S-  E.  R,  Co., 
107  .Mass.  I. 

84.  Interpretation  un  affected  by 
law  of  place.— When  a  mortgage  is  given 
upon  a  railroad,  situate  partly  in  two  states 
other  than  Illinois,  where  the  road  is  oper- 
ated, but  the  proof  does  not  show  where 
the  mortgage  was  executed,  an  Illinois 
court  will  not  be  bound  by  the  law  of 
comity  to  adopt  the  construction  given  by 
the  courts  of  one  of  those  states  to  a  similar 
mortgage,  as,  that  it  includes  the  earnings 
of  the  road.  Mississippi  Valley  &•  \V.  R. 
O).  V.  Unite.i  Slates  Exfi.  Co.,  81  ///.  534. 

85.  Del'aiilt8  and  forfeitures.  —  A 
mortgage  to  secure  the  payment  of  bonds 
issued  and  sold  by  the  company  cannot  be 
called  in  question  because  of  the  subsequent 
default  of  the  company  in  failing  to  con- 
struct a  branch  road  with  the  proceeds  of 
such  bonds.  Newport  &•  C.  Brit^^e  Co.  v. 
noufrlass,  13  Bush  (A>.)  673,  18  Am.  Ry. 
Rep.  221. 


Where  a  mortgage  contains  a  condition 
that  in  default  of  payment  of  interest  a 
majority  of  the  bondholders  are  authorized 
to  waive  the  default,  and  to  instruct  the 
mortgage  trustees  so  to  waive  it,  and  it  is 
expressly  provided  that  no  action  on  the  part 
of  the  bondholders  or  trustees  in  case  of 
default  shall  affect  any  subsequent  default, 
or  any  right  arising  therefrom,  the  bond- 
holders have  no  authority  to  anticipate  and 
provide  for  a  default  before  it  accrues.  Mc' 
Clellandw.  Norfolk  Southern  R.  Co.,  i'.  N. 
y.  469,  18  A^.  ^.  Rep.  237,  18  A^.  Y.  O.  R. 
344,  I  L.  R.  A.  299,  6  Am.  St.  Rep.  397,  38 
Alb.  Z../.  410 ;  reversing  3  A^.  Y.  S.  R.  250. 

8<t.  Equitable  mortgages.  —  Where 
railroad  property  is  placed  in  the  hands  of 
receivers,  and  is  under  the  control  of  the 
court,  expenses  of  the  management  of  the 
road  and  debts  legitimately  incurred  con- 
stitute a  lien  in  the  nature  of  an  equitable 
mottgage  on  the  property  which  may  be 
enforced  by  a  foreclosure  against  the  prop>- 
erty  and  the  franchises.  Langdon  v.  Ver- 
mont  <S-  C  R.  Co.,  11  Am.  <S-  Ettg.  R.  Cas. 
688,  54  Vt.  593.— Quoting  Rensselaer  &  S. 
R.  Co.  V.  Miller,  47  Vt.  146.— Followed  in 
Hazard  v.  Vermont  &  C.  R.  Co.,  12  Am.  &. 
Eng.  R.  Cas.  388,  17  Fed.  Rep.  753. 

Plaintiff,  a  bank,  held  certain  railway 
coupons  as  security  for  a  debt.  The  cou- 
pons were  convertible  into  lands  at  the  op- 
tion of  the  holder,  and  the  bank  agreed 
that  they  might  be  so  converted,  and  its 
debtor  took  the  deed  in  his  own  name, 
which  was  not  recorded,  but  was  deposited 
with  the  bank  as  security  in  lieu  of  the  cou- 
pons. Held,  that  this  created  an  equitable 
mortgage,  and  gave  the  bank  an  equity  in 
the  lands  superior  to  a  lien  of  a  general 
creditor.  First  Nat.  Bank  v.  Caldwell,  4 
Dill.  (U.  S.)  314. 

J.,  being  fully  authorized  in  that  behalf 
by  the  M.  &  C.  P.  R.  Co..  and  A.  and  G. 
enter  into  a  written  agreement  by  which  A. 
and  G.  engage  to  act  as  the  agents  of  said 
company,  and  to  purchase  in  England,  pay 
for,  insure,  and  ship  to  said  company  at 
Mobile  a  certain  quantity  of  railroad  iron, 
etc., and  the  said  company,  in  consideration 
thereof,  undertake  to  pay  the  said  A.  and  G. 
for  the  same  on  its  arrival  at  Mobile,  etc., 
and  to  secure  said  payment  "  pledges  the 
real  and  personal  estate  of  said  company  " 
to  the  said  A.  and  G.  Held:  (1)  that  the 
agreement  constitutes  an  equitable  mort- 
gage in  favor  of  A.  and  G.  on  all  the  real 


i 


i 


'..J' 


4^ 


\l\ 


442 


MORTGAGES,  8«. 


m 


;i 


■I 


and  personal  estate  of  said  company,  which 
a  court  of  chancery  will  enforce  against 
said  company,  and  all  persons  claiming 
under  it  with  notice ;  (2)  that  neither  the 
fact  that  the  agreement  pledges  the  real 
and  personal  estate  of  said  company,  with- 
out specification,  nor  that  the  amount  to  be 
secured  is  not  stated,  nor  that  it  is  made  to 
secure  future  advances,  nor  that  no  time  of 
redemption  is  fixed,  can,  per  se,  render  the 
agreement  invalid.  Mobile  &*  C,  P.  K.  Co. 
V.  Talman,  1 5  Ala.  472. 

A  landowner  conveyed  to  a  railroad  com- 
pany, expressly  reserving  a  vendor's  lien  to 
secure  notes  given  for  the  purchase  money, 
and  took  back  a  power  of  attorney  author- 
izing tlie  vendor  or  any  holder  of  the  notes 
to  sell  the  land  to  secure  payment  of  the 
notes  or  interest.  A  mortgage  on  the  road 
was  subsequently  foreclosed,  and  the  pur- 
chasers went  into  possession  of  the  prop- 
erty, including  the  lands.  Held,  that  the 
vendor  and  his  transferees  of  the  notes  ac- 
quired an  equitable  mortgage  on  the  land, 
and  while  the  purchasers  of  the  railroad 
property  were  lawfully  in  possession,  tiiey 
only  acquired  an  equity  of  redemption  in 
such  lands,  and  were  not  liable  for  the 
mortgage  debt  or  interest  thereon.  Hall\. 
Mobile  <&*  M.  R.  Co.,  58  Ala.  10. 

Such  purchasers  were  not  liable  for  rents 
or  for  use  and  occupation,  not  exceeding  in- 
terest maturing  during  the  possession,  prior 
to  a  demand  upon  them  for  possession,  or 
its  being  taken  from  them  by  a  receiver. 
Hall  v.  Mobile  &•  M.  K.  Co.,  58  Ala.  10. 

On  May  i,  1871,  three  railroad  companies 
that  were  associated  together  for  the  pur- 
pose of  building  and  running  their  several 
roads  as  one  continuous  line  executed  a 
mortgage  deed  of  their  several  roads  and 
of  all  the  personal  property  and  income 
thereof,  together  with  all  their  corporate 
rights,  in  trust,  to  secure  the  payment  of 
their  joint  bonds  to  the  amount  of  $3,300,- 
000.  The  bonds  were  executed,  and  sold  or 
pledged.  On  April  i,  1874,  the  same  com- 
panies executed  a  second  mortgage  of  the 
same  property  to  the  same  trustees  to  se- 
cure the  payment  of  their  joint  bonds  to 
the  amount  of  $1,770,000.  Bonds  to  the 
amount  of  about  $125,000  were  issued 
thereunder.  On  January  1,  1875,  those 
companies,  with  others,  executed  a  mort- 
gage of  all  the  property  of  their  sevoriil 
roads,  including  the  property  conveyed  by 
the  previous  mortgages,  to  other  trustees, 


in  trust,  to  secure  the  payment  of  their 
joint  bonds  to  the  amount  of  $9,300,000. 
Bonds  to  the  amount  of  about  $80,000  were 
issued  thereunder.  On  July  18,  1876,  the 
proceeds  of  all  the  bonds  so  issued  being 
expended,  and  the  companies  being  insol- 
vent and  still  in  need  of  funds  to  complete 
their  roads,  the  first-mentioned  companies 
executed  a  fourth  mortgage  of  the  property 
conveyed  by  the  first  mortgage  to  one  of 
the  trustees  in  the  first  and  second  mort- 
gages, in  trust,  to  secure  the  payment  of 
their  joint  bonds  to  the  amount  of  $500,- 
000.  That  mortgage  provided,  among  other 
things,  that  no  bonds  should  be  issued 
thereunder  until  holders  of  the  first  mort- 
gage bonds  to  the  amount  of  $1,800,000  had 
first  signed  an  agreement  whereby  they 
should  severally  agree  that,  for  the  purpose 
of  completing  the  roads  and  paying  the  in- 
terest on  certain  debts,  said  companies 
might  issue  such  bonds,  "to  be  denomi- 
nated preference  bonds,"  which  should  con- 
stitute and  be  a  lien  "on  the  property  con- 
veyed by  such  mortgage  prior  to  the  bonds 
held  by  "  the  several  signers  thereof.  Such 
an  agreement  was  signed  by  holders  of  first 
mortgage  bonds  to  the  amount  of  about 
$1,870,000.  A  bill  was  brought  by  the 
trustee  under  the  last  mortgage  for  a  fore- 
closure thereon ;  and  a  cross-bill  was 
brought  by  the  trustees  under  the  first 
mortgage  for  a  foreclosure  thereon.  Both 
bills  prayed  for  a  settlement  of  priorities, 
and  for  general  relief.  Held,  that  the  agree- 
ment operated  as  an  equitable  mortgage 
or  pledge  of  the  interest  under  the  first 
mortgage  of  those  who  signed,  as  security 
for  the  payment  of  the  preference  bonds; 
but  that  it  in  no  way  affected  the  interest, 
or  the  priority  of  the  lien,  of  those  who  did 
not  sign.  Poland  v.  Lamoille  Valley  K.  Co., 
4  Am.  &-  Etig.  A'.  Cas.  408,  52  VI.  144. 

The  defendants,  being  indebted  to  the 
plaintiff  in  the  sum  of  ;{|  1,000,  executed  a 
bond  to  him  declaring  that  for  the  pur|)ose 
of  securing  the  debt  and  interest,  they 
granted  to  him,  inter  alia,  the  undertaking 
of  the  company,  and  all  moneys  to  arise 
from  the  sale  of  their  lands,  with  a  condi- 
tion, that  on  failure  of  payment  on  a  cer- 
tain day  the  plaintiff  might,  upon  giving 
three  months'  notice,  enter  upon  the  receipt 
of  the  proceeds  of  the  sales,  tolls,  etc.,  and 
upon  the  absolute  possession  of  the  railway, 
etc.,  and  reimburse  himself  the  amount  due, 
provided  th)..  "nothing  tliercin  should  be 


MORTGAGES,  87. 


448 


lies 


Iield  to  limit  the  powers  of  sale  or  appropri- 
ation by  the  company  of  any  of  their  lands, 
nor  constitute  a  charge  upon  the  same." 
Held,  that  this  did  not  constitute  an  equit- 
able mortgage  on  the  lands  of  the  company ; 
and  that  judgment  creditors  of  the  com- 
pany, without  notice  of  the  bond,  could  not 
be  restrained  by  injunction  from  selling  the 
lands  under  execution.  Wickham  v.  Xew 
lirunswick  &-  C.  R.  &•  L.  Co.,  1 1  New  Brun. 

2.  Protection  of  Prior  Liens. 

87.  In  general.  —  All  statutory  liens 
are  entitled  to  preference  over  mortgage 
bonds  ;  but  all  equitable  liens  ordered  pay- 
able out  of  the  earnings  of  a  road  are  sub- 
sequent to  the  mortgage  bonds.  Blair  v. 
St.  Louis,  H.  <S-  A'.  A'.  Co.,  25  Fed.  Rep.  232. 

A  court  has  the  power  to  create  claims, 
through  a  receiver  in  a  suit  to  foreclose  a 
railroad  mortgage,  which  shall  take  prece- 
dence of  the  mortgage  lien.  It  may  pro- 
vide, therefore,  that  the  receiver  pay  the 
arrears  for  operating  expenses  for  a  past 
period  of  not  more  than  ninety  days,  shall 
piiy  indebtedness  not  exceeding  $10,000  for 
materials  and  repairs,  and  for  ticket  and 
freight  balances,  a  part  of  which  had  been 
incurred  more  than  ninety  days  prior  to  his 
appointment,  shall  purchase  rolling  stock, 
build  six  miles  of  road  and  a  bridge,  and 
make  all  such  expenditures  prior  to  the 
mortgage  lien.  Miltenherger  v.  Lt>}[ansport, 
C.  &*  S.  IV.  R.  Co.,  1 2  //w.  fe-  L'n^.  R.  Cas. 
464,  106  U.  S.  286,  I  Sup.  Ct.  Rep.  140. — 
Ai'iM.iKi)  IN  Round  V.  South  Carolina  R. 
Co..  47  Fed.  Rep.  30.  Foi.l.owF.n  in  Blair 
T'.  St.  Louis.  H.  &  K.  R.  Co.,  22  Fed.  Rep. 
471.  QuoTKl)  IN  American  L.  A  T.  Co.  v. 
Kast  &  VV.  R.  Co.,  46  Fed.  Rop.  loi.      f 

III  t'le  foreclosure  of  railroad  mortgages 
it  often  becomes  necessary  to  provide  for 
the  payment  of  preferred  claims,  and  to 
postpone  all  rights  of  ordinary  creditors, 
and  even  of  mortgagees,  to  these  preferred 
classes, and  this  is  sometimes  done,  from  the 
circumstances  of  the  case,  without  notice 
to  all  who  may  be  affected  thereby.  United 
Stati-a  Trust  Co.  v.  VViihash  Western  A'.  Co., 
150  U.  S.  287.  14  Sup.  Ct.  Rep.  86.— Fol- 
low k.d  IN  Seney  v.  Wabash  Western  R. 
Co.,  150  U.  S.  310. 

Where  a  party  intervenes  in  a  foreclosure 
proceeding  and  presents  a  small  claim,  and 
the  master  reports  that  the  claim  has  not 
been  contested,  and  that  it  should  be  al- 


lowed, and  constitute  a  lien  superior  to  that 
of  the  mortgage,  and  all  parties  interested 
consent,  the  report  will  be  confirmed,  and 
the  claim  allowed.  Central  Trust  Co.  v. 
Wabash,  St.  L.  6-  P.  R.  Co.,  24  Fed.  Rep. 
98. 

A  railroad  company  the  fruits  of  whose 
labor  and  expenditures  are  about  to  be  lost 
by  the  failure  of  its  enterprise  cannot,  in 
order  to  raise  money  to  complete  it,  create 
liens  upon  its  property  which  will  displace 
an  older  lien,  and  no  prerogative  of  a  court 
of  equity  arms  it  with  power  to  do  so. 
Meyer  v.  Johnston,  53  Ala.  237,  15  Am.  Ry. 
Rep.  467. 

The  creditors  of  a  corporation  who  are 
secured  by  mortgages  of  its  property  ac- 
quire therein  rights  of  wliich  they  cannot 
be  deprived  even  by  an  act  of  the  legisla- 
ture. Montgomery  &-  W,  P.  R.  Co.  v. 
Branch,  59  Ala.  1 39. 

An  agreement  by  the  creditors  of  a  rail- 
way company  consenting  to  give  the  ex- 
chequer loan  commissioners  advancing 
money  to  assist  in  completing  the  work 
a  qualified  priority  for  their  mortgage  over 
the  creditors'  claims  is  valid  under  57  Geo. 
3.  c.  34.  South  Eastern  R.  Co.  v.  Jortiii,  6 
H.  L.  Cas.  425,  4  Jur.  N.  S.  467,  27  L.  J. 
Ch.  145. 

Where  a  railway  act  authorizes  the  com- 
i  .ipy  to  borrow  money  on  mortgage,  with 
the  provision  that  the  interest  of  all  deben- 
ture stock  "  at  any  time  created  by  the 
company"  is  to  rank  pari  passu  with  the 
interest  of  all  mortgages  "at  any  time 
granted  "  by  the  tompany.  and  shall  have 
priority  over  all  principal  moneys  secured 
by  such  mortgage,  notwithstanding  the 
words  "  at  any  time  "  the  provision  applies 
only  to  the  mortgage  debt  and  debenture 
stock  for  which  provision  is  made  by  the 
act.  Harrison  v.  Cornwall Minnals  R.  Co., 
L.  R.  18  Ch.  />.  334.  51  L.  J.  Ch.  I).  98.  45 
L.  T.  498  ;  varyini^-  I..  R.  16  Ch.  D.  66.  49 
L.  J.  Ch.  D.  834!  43  /..  T.  496.— DlSTlN- 
OLMSHKH  IN  Robinson  v.  Drakes.  L.  R.  23 
Ch.  n.  98.  48  L.  T.  740,  3!  W.  R.  871. 

Under  the  mortgage  executed  by  the 
Kentucky  &  Great  Eastern  R.  Co.  Feb- 
ruary 15,  1872,  the  Farmers'  Loan  &  Trust 
Co.,  as  mortgagee,  took  only  such  rights  as 
the  mortgagor  had  or  subsequently  obtained 
as  against  the  vendors  of  the  Maysville  & 
Big  Sandy  R.,  and,  the  mortgagor  never 
having  obtained  title  to  said  road,  the  mort- 
gagee was  therefore  bound  by  the  forfeiture 


;.  i 


444 


MORTGAGES,  88. 


under  the  conditional  sale.  Jl'rttf/it  v, 
Kentucky  &*  G.  E.  A',  Co.,  24  Am,  ir-  Eng, 
K.  Cas.  312,  117  (/,  S.  72,  6  Sup.  O.  Rep. 
697. 

A  provision  in  a  mortgage  of  the  property 
and  franchises  of  a  railroad  corporation  to 
trustees,  made  to  secure  certain  mortgage 
bonds  to  be  issued  thereunder  for  the  pur- 
pose (jf  providing  for  and  retiring  tlie  then 
existing  mortgage  debt  and  prior  liens  on 
tlie  railroad,  and  completing  and  equipping 
the  road,  that  tlie  expenditure  of  all  sums 
realized  from  the  sale  of  the  bonds  "  shall 
be  made  with  the  approval  of  at  least  one 
of  the  trustees,  whose  assent  in  writing 
shall  be  necessary  to  all  contracts  made  by 
the  corporation,"  "  before  the  same  shall  be 
a  charge  upon  any  of  the  sums  received 
from  said  sales,"  does  not  create  a  charge 
upon  the  pn^eeds  of  the  sales  of  the  mort- 
gage bonds  in  favor  of  one  wiio  afterwards 
built  a  portion  of  the  road  under  a  written 
contract  with  the  corporation  whose  con- 
tract did  not  itself  impose  such  charge. 
Dillon  \. Barnard,  \  Holmes  (C.  S.)  386. 

88.  Senior  uiid  Junior  iiiortgitKeH. 
— (I)  In  general. — Subsequent  mortgagees 
have  implied  notice  of  the  contract  rights 
and  statutory  remedies  of  the  beneficiaries 
under  the  elder  mortgages  and  deeds  of 
trust,  and  their  claims  are  subordinate  to 
those  elder  and  superior  rights.  Newport 
&*  C.  Bridge  Co.  v.  Douglass,  12  Bush  (fCy.) 
673,  18  Am.  Ry.  Rep.  221. 

The  exclusive  right  of  a  second  mortga- 
gee to  the  income  of  a  receivership  created 
under  a  bill  filed  by  him  is  limited  to  a  case 
where  the  first  mortgagee  is  not  a  party  to 
the  suit.  Milenberger  v.  Logansport,  C.  &* 
S.  ff.  R.  Co.  12  Am.  &•  Eng.  A'.  Cas.  464. 
106  I/.  S.  286.  I  Sup.  Ct.  Rep.  140. 

A  stock  mortgage  in  the  Clinton  &  Port 
Hudson  R.  Co.  takes  precedence  of  a  mort- 
g;iRe  stock  loan  made  under  the  provisions 
of  the  charter  of  said  company.  Langfitt 
V.  nrcrnnt,  5  La.  Ann.  231. — Following 
Meeker  v.  Clinton  &  P.  H.  R.  Co.,  2  La. 
Ann.  971. 

A  decree  of  court  declaring  the  mort- 
gages executed  by  a  railroad  company  to  be 
the  first  lien  on  its  property  and  franchises 
does  not  give  them  precedence  over  the 
prior  lien  of  a  party  who  had  no  notice  of  the 
proceedings  and  was  not  privy  to  the  decree. 
Pittsburgh,  C.  6-  St.  L.  R.  Co.  v.  Marshall, 
85  Pa.  St.  487.  18  Am.  Ry.  Rep.  388. 

(2)  Illustrations. — A  railroad  company  of 


Texas  made  four  successive  mortgages  in 
1853,  1855,  1857,  and  1859,  and  issued  bonds 
under  each.  The  road  and  its  appendages 
were  sold  under  judgment  in  i860.  The 
purchasers  operated  the  road  until  1867  and 
realized  large  receipts  therefrom.  In  1857, 
after  the  making  of  the  first  three  mort- 
gages, the  legislature  passed  a  law  subject- 
ing the  road  and  chartered  rights  of  all 
railroad  companies  to  sale  for  their  debts, 
either  under  mortgages,  deeds  of  trust,  or 
judgments.  Held:  (1)  that  this  law  enured 
to  the  benefit  of  the  first  three  mortgages 
as  well  as  to  that  last  made,  and  as  to  the 
judgment  recovered,  after  its  enactment, 
and  in  the  order  of  priority  due  to  each  ;  (2) 
that  the  sale  under  the  judgment  did  not 
disturb  the  priority  of  the  mortgages;  (3) 
that,  although  the  first  three  mortgages 
covered  and  conveyed  the  tolls  and  profits, 
yet  the  purchasers  under  the  judgment 
were  not  accountable  for  the  tolls  and  in- 
come received  by  them  from  the  road  be- 
fore they  were  notified  to  pay  them  over  to 
the  bondholders;  (4)  that,  although  part 
of  the  road  was  entirely  built  by  the  money 
raised  on  the  fourth  mortgage,  yet  that 
fact  did  not  give  it  priority  over  the  first 
three  mortgages  even  on  that  portion  of  the 
road,  provided  it  was  a  part  of  the  chartered 
route;  (5)  a  railroad  mortgage  as  against 
the  company  and  its  privies,  although  given 
before  the  road  was  built,  attaches  itself 
thereto  as  fast  as  it  is  built,  and  to  all  prop- 
erty covered  by  its  terms,  as  fast  as  it  comes 
into  existence  as  property  of  the  company  ; 
(6)  the  principle  applicable  to  maritime  cases, 
which  gives  priority  of  lien  to  the  last  cred- 
itor furnishing  supplies  and  repairs  for  the 
conservation  of  the  ship  or  voyage,  does 
not  apply  to  railroads.  As  to  them,  the 
common  law  rule  prevails :  Qui  prior  est  in 
tempore,  potior  est  in  jure.  Median  ics'  lien 
laws  have  not  been  extended  to  railroads  in 
Texas.  Galveston,  H.  &*  H.  R.  Co.  v.  Co^v- 
drey,  II  Wall.  (U.  5.)  459. — Approvkd  in 
Gilman  v.  Illinois  &  M.  Tel.  Co.,  91  U.  S. 
603.  DiSTlNGUI.SHEU  IN  Sunflower  Oil  Co. 
V.  Wilson,  48  Am.  &  Eng.  R.  Cas.  664,  142 
U.  S.  313.  Followed  in  Central  Trust 
Co.  V.  Kneeland.  46  Am.  &  Eng.  R.  Cas. 
268,  138  U.  S.  414:  Scott  V.  Clinton  &  S. 
R.  Co.,  6  Biss.  (U.  S.)  529;  Gilman  v. 
Illinois  &  M.  Tel.  Co.,  i  McCrarv  (U.  S.) 
170;  DeOraff  v.  Thompson,  24  Minn.  452. 
QuoTEn  IN  Coe  v.  New  Jersey  Midland  R. 
Co..  31  N.  J.  Eq.  105. 


MOR     'jAGES,  89 


445 


By  the  terms  of  a  first  mortgage  of  a 
railroad  tlic  mortgagee  had  a  right  to  take 
cliari;e  of  the  road  and  operate  it,  but  a 
receiver  was  iippointed  on  a  bill  filed  by  a 
second  mortgagee,  the  first  mortgagee  being 
made  a  party  and  answering  the  bill.  More 
than  a  year  afterwards  the  first  mortgagee 
filed  a  cross-bill,  after  the  receiver  had  in- 
curred heavy  debts  for  improvements  and 
otherwise,  asserting  a  first  lien  on  the  prop- 
erty, and  objecting  to  the  payment  of  the 
receiver's  debts  as  a  first  lien.  Held,  that 
it  would  be  inequitable  to  allow  the  parties 
to  lie  by  for  such  a  lapse  of  time,  with  full 
knowledge  of  what  the  court  and  receiver 
were  doing,  and  then  allow  such  objections 
to  be  made.  Miltenberger  v.  Lqgansport, 
C.  6-  S.  W.  R.  Co.,  12  Am.  <S-  Eng.  K. 
Cits.  464,  106  U.  S.  286.  I  Sup.  a.  Kep. 
140. 

Where  a  company  has  executed  a  mort- 
gage of  its  railroad  and  all  the  right  of  way 
and  land  occupied  thereby,  with  the  super- 
structure, and  all  property,  material,  rights, 
and  privileges  then  or  thereafter  appertain- 
ing to  the  road,  and  afterwards  executes  a 
lease  of  its  road  to  another  company  which 
contracts,  in  consideration  of  such  lease,  to 
construct  a  section  of  the  road  which  had 
not  been  completed,  the  mortgage  so  exe- 
cuted has  priority  over  a  mortgage  subse- 
quently executed  by  the  lessee  of  the  sec- 
tion constructed  by  it,  although  the  lessor 
has  joined  the  lessee  in  the  execution  of  the 
latter  mortgage.  Thompson  v.  White  Water 
Valley  R.  Co.,  40  Am.  &*  Eng.  K.  Cas.  373, 
132  U.  S.  68.  10  Sup.  Ct.  Rep.  29.— Fol- 
lowed IN  Fogg  V.  Blair,  133  U.  S.  534,  10 
Sup.  Ct.  Rep.  338 ;  Central  Trust  Co.  v. 
Kneeland,  46  Am.  &  Eng.  R.  Cas.  268,  138 
U.  S.  414. 

A  railroad  charter  made  a  certain  debt  a 
lien  on  the  company's  property,  and  it  after- 
wards executed  a  first  mortgage  to  secure 
bonds  which  were  to  be  used  largely  in 
taking  up  the  prior  debt,  but  the  amount  of 
tlie  bonds  exceeded  the  amount  of  the  debt. 
Afterwards  a  second  mortgage  was  made  to 
secure  other  obligations.  Held,  that  the 
first  mortgage  was  superior  to  the  second  as 
to  the  excess  of  the  first  bonds  over  the 
amount  of  the  debt,  whether  issued  before 
the  second  mortgage  was  given  or  not. 
Claflin  V.  South  Carolina  R.  Co.,  4  Am.  &* 
Eng.  R.  Cas.  231,  4  Hughes  {U.  S.)  12,  8 
Fed.  Rep.  118.— <^UOTED  IN  Barry  v.  Mis- 
souri, K.  &  T.  R.  Co.,  36  Am.  &  Eng.   R. 


Cas.  333,  34  Fed,    Rep.  829;  Hand  v.   Sa- 
vannah &  C.  R.  Co.,  17  So.  Car.  219. 

In  such  case  bonds  of  the  first  mortgage 
unissued  at  the  time  the  second  mortgage 
was  made,  and  bonds  coming  into  the  com- 
pany's hands  by  purchase,  without  intention 
of  retiring  them,  and  issued  thereafter  in  its 
business,  were  valid  as  against  creditors 
claiming  under  the  second  mortgage.  Claf- 
lin V.  South  Carolina  R.  Co.,  4  Am.  <S-  Eng. 
R.  Cas.  231,  4  Hughes(U.  S.)  12, 8  Fed.  Rep. 
118. 

A  chattel  mortgage  on  the  equipment  of 
a  railroad  made  by  authority  of  the  board 
of  directors  of  an  insolvent  corporation  for 
securing  the  claims  of  directors  against  the 
corporation — held,  to  be  invalid  as  against 
prior  mortgagees  of  the  franchises  and 
equipment,  whose  mortgages  were  not  filed 
(the  transactions  being  prior  to  the  act  of 
1876,  N.  J.  Rev.  p.  924,  §  86),  because  the 
directors,  who  were  also  stockholders,  had 
notice  of  the  prior  mortgages.  Coe  v.  New 
Jersey  Midland  R.  Co.,  31  N.J.  Eg.  105  ;  re- 
versed in  34  N.J.  Eg.  266.— Applied  In  Re 
North  River  Constr.  Co.,  38  N.  J.  Eq.  433. 

Such  prior  mortgages,  however — held, 
not  to  be  valid  age.inst  judgment  creditors 
who,  but  for  the  receivership  obtained  in  a 
suit  to  foreclose  one  of  the  mortgages, 
might  have  made  a  lawful  valid  levy  on  the 
equipment.  Coe  v.  Netv  Jersey  Midland  R. 
Co.,  31  N.  J.  Eg.  105  ;  reversed  in  34  N.  J. 
Eg.  266. 

A  company  executed  three  mortgages 
upon  its  property  and  income,  the  property 
in  possession  and  to  be  acquired.  Two  of 
these  mortgages  were  properly  executed 
and  recorded,  but  the  second  in  order  of 
time,  executed  in  New  York,  and  acknowl- 
edged before  an  Ohio  commissioner  in  that 
state,  had  but  one  witness.  The  third  or 
subsequent  mortgage  was  expressly  made 
subject  to  the  first  and  second.  Held,  that 
whether  the  second  mortgage  be  regarded 
as  creating  a  legal  or  equitable  claim  it  was 
entitled  to  priority  over  the  third.  Coe  v. 
Columbus,  P.  &*  I.  R.  Co.,  \o  Ohio  St.  372. 
—Distinguished  irf  Ludlow  v.  Clinton 
Line  R.  Co.,  1  Flipp.  (U.  S.)  25. 

80.  Advances  to  pay  wages.*  — 
Where  railroad  employ6s  are  threatening  to 
strike  unless  their  wages  are  paid,  and  cer- 
tain stock  and  bond  holders  advance  the 
money  with  the  distinct  understanding  that 

*  See  also  >//,   108. 


446 


MORTGAGES,  OO,  91. 


it  is  to  be  paid  to  such  employes,  and  re- 
paid out  of  tlic  first  net  earnings,  but  tlie 
road  goes  into  tlie  hands  of  a  receiver  be- 
fore such  payment,  such  advances  will  be 
ordered  piiid  in  preference  to  claims  of 
mortgagees.  At/:ins  v.  Petersburg  li.  Co., 
3  Hughes  ( U.  S.)  307. 

UO.  Certiflcutet*  of  iiitlebtcdiiesH.— 
Prior  to  the  passage  of  liie  N.  Y.  Act  of 
1885  (ch.  376),  wliich  requires  a  receiver  of 
an  insolvent  railroad  to  pay  tlie  wages  of  its 
employes  in  preference  to  other  debts,  and 
conceding  that  said  act  applies  to  a  receiver 
appointed  in  an  action  to  foreclose  a  mort- 
gage on  the  property  of  such  a  corporation 
(as  to  which,  qmere),  the  court  has  no  power 
to  authorize  a  receiver  so  appointed  to  pay 
or  issue  his  certificates  of  indebtedness  for 
tlie  payment  of  labor  and  services  in  oper- 
ating the  road  prior  to  his  appointment,  and 
to  make  certificates  so  issued  a  lien  prior  to 
the  mortgage.  Metropolitan  Trust  Co.  v. 
Tonnwanda  Valley  Sf  C.  K,  Co.,  103  A'.  Y. 
245,  8  X.  E.  Kep.  488,  2  N.  Y.  S.  R.  69;  re- 
versing  40  llun  80. 

By  an  order  issued  in  foreclosure  the  re- 
ceiver was  directed  to  pay  or  to  issue  cer- 
tilicates  having  a  priority  of  lien  over  the 
mortgage  to  a  sum  stated  for  the  payment 
of  a  sum  stated  "  for  deficiencies  for  sup- 
plies." The  referee,  upon  whose  report  the 
order  was  based,  found  that  the  receiver  in 
operating  the  road  had  incurred  obligations 
to  an  amount  stated  wliich  was  greater 
than  the  sum  so  authorized  to  be  paid. 
There  was  no  statement  in  the  findings  or 
otherwise  as  to  the  consideration  or  cause 
of  the  indebtedness,  or  to  show  that  the  ob- 
ligations were  necessarily  incurred.  Held, 
that  while,  as  the  order  directing  the  re- 
ceiver to  maintain  and  operate  the  road  was 
made  at  plaintiff's  request,  it  must  abide  by 
it,  and  it  might  be,  as  against  it,  the  clause 
providing  for  such  indebtedness  should  be 
allowed  to  stand  as  against  another  mort- 
gagee who  was  not  a  party  to  the  applica- 
tion for  a  receiver,  it  could  not  be  sustained. 
Metropolitan  Trust  Co.  v.  Tonawanda  Valley 
&*  C.  A'.  Co.,  103  A',  r.  245, 8  A'.  E.  Rep.  488, 
2  A',  r.  S.  R.  69 ;  reversing  40  Hun  80. 

Under  a  So.  Car.  act  passed  in  1869  cer- 
tificates of  indebtedness  were  authorized  to 
be  issued  by  a  railroad  company  for  funding 
interest  due  upon  its  bonds  which  were  se- 
cured by  a  lien  under  an  act  of  1866,  and 
which  lien  was  extended,  by  the  later  act 
to  cover  these  certificates  of  indebtedness. 


Held,  that  this  was  a  mere  substitution,  and 
not  a  payment,  and  that  the  lien  of  these 
certificates  was  superior  to  that  of  a  mort- 
gage executed  between  1866  and  1869. 
Gibbes  v.  Greenville  &*  C.  R.  Co..  4  Am.  ^ 
Eng.  R.  Ctis.  459,  13  So.  Car.  228. 

1>1.  CltiiiiiM  for  labor  uiid  iiiaterinl, 
wlivii  entitled  to  priorlty.*-(i)  /» 
general. —Where  a  contractor  furnishes 
labor  and  materials  upon  a  section  of  a 
road  in  Iowa  which  is  covered  by  a  pre-ex- 
isting mortgage,  the  contractor,  by  comply- 
ing with  the  statute,  obtains  a  paramount 
lien  on  the  wiiole  road.  Brooks  v.  Burling' 
ton  S^  S.  \V.  R.  Co..  loi  U.  S.  443._Ap- 
PLIKD  IN  Giant  Powder  Co.  v.  Oregon  Pac. 
R.  Co.,  43  Am.  &  Eng.  R.  Cas.  622,  42  Fed. 
Rep.  470,  8  L.  R.  A.  700.  Distinguished 
IN  Giant  Powder  Co.  w.  Oregon  Pac.  R.  Co., 
14  Sawy.  (U.  S.)  560;  Buncombe  County 
ComVs  V.  Tommey,  20  Am.  &  Eng.  R.  Cas. 
495.  1 1 5  U.  S.  1 22.  F(Jl.LOWED  in  Meyer  v. 
Hornby,  101  U.  S.  728. 

Claims  of  an  insolvent  railroad  for  labor 
or  supplies  accruing  within  six  months  of 
the  time  a  receiver  was  appointed  should 
be  paid  out  of  the  net  income  in  the  hands 
of  the  receiver.  As  a  general  thing,  claims 
accruing  before  that  time  are  not  entitled 
to  preference.  Blair  v.  St.  Louis,  H.  «S-  A'. 
A".  Co.,  22  Fed.  Rep.  471.— Following  Mil- 
tenberger  v.  Loganspoi  t,  C.  &  S.  VV.  R.  Co.. 
106  U.  S.  286,  I  Sup.  Ct.  Rep.  140.— Fol- 
lowed in  Farmers'  L.  &  T.  Co.  v.  Kansas 
City.  W.  &  N.  W.  R.  Co..  53  Fed.  Rep.  18;. 

Where  supplies  are  furnished  an  insol- 
vent railroad,  in  making  permanent  im- 
provements from  time  to  time,  under  a 
verbal  contract,  continuing  until  the  road 
goes  into  the  hands  of  a  receiver,  bi :  cover- 
ing a  |)eriod  of  two  years  or  mere,  they 
constitute  a  superior  lien  on  the  earnings 
of  the  road  tr  that  held  by  mo-  tgnge  cred- 
itors. Blair  v.  St.  Louis,  H.  S*  A'.  R.  Co., 
22  Fed.  Rep.  769.  Blair  v.  St.  Louis,  H.  6- 
K.  R.  Co.,  23  Fed.  Rep.  704.' 

Where  parties  are  entitled  to  a  lien  for 
materials  prior  to  mortgages,  and  can  secure 
it  by  certain  proceedings  under  the  statutes 
of  the  state,  where  the  road  is  in  the  hands 
of  a  receiver,  the  court  will  not  require  the 
expense  of  such  a  proceeding,  but  will  treat 
it  as  though   all   needful   steps  had   been 


•  Constitutionality  of  statute  giving  labor  and 
inateri.il  liens  priority  over  mortgages,  see  57 
Am.  &  Eno.  R.  Cas.  433,  abstr.  See  also  ^pst. 
109.  ^ 


MORTGAGES,  1>1. 


447 


nd 

rt- 
69. 


taken  to  establish  the  lien.     Central  Trust 
Co.  V.   Texas  <S-  St.  L.  K.  Co.,  23  Fed.  Kep. 

673- 

Where  a  system  of  railroads  is  operated  by 
one  corporation,  a  claim  for  work  and  ma- 
terials, which  constitutes  a  preferred  debt, 
on  a  division  of  tlie  system  constitutes  a 
lion  upon  the  whole  system  prior  to  both 
local  and  j^encral  mortgajjes.  Central  Trust 
Co.  V.  IVabasli,  St.  L.  6-  P.  R.  Co.,  30  Fetl. 
Rt-p.  332.— Followed  in  Farmers'  L.  &  T. 
Co.  V.  Kansas  City,  W.  &  N.  W.  R.  Co.,  53 
Fed.  Rep.  182. 

A  claim  for  labor,  supplies,  or  materials 
furnished  to  keep  the  road  as  a  Roing  con- 
cern constitutes  a  prior  lien,  and  is  entitled 
to  payment  in  preference  to  interest  on  the 
niortgaj^e  bonds;  and  if  it  appears  that 
money  that  should  have  gone  to  discharge 
such  claims  has  been  paid  to  discharge 
such  interest,  or  to  make  permanent  im- 
provements on  the  road,  the  court  will 
order  such  claims  paid  from  any  earnings 
in  the  hands  of  a  receiver,  or  if  not  suffi- 
cient, then  out  of  the  proceeds  of  the  prop- 
erty when  sold.  Finance  Co.  v.  Charleston, 
C.  '&*  C.  A'.  Co.,  48  Feti.  Rep.  188. 

Under  the  laws  of  Georgia  a  railroad 
mortgage  constitutes  a  superior  lien,  except 
taxes  and  claims  for  labor  and  materials, 
where  the  proper  steps  have  been  taken  to 
secure  the  lien,  and  priority  will  only  be 
given  to  a  claim  for  labor  and  materials 
where  the  lien  has  been  perfected  under 
the  statute.  Jessup  v.  Atlantic  (S-  G.  R.  Co., 
3  Woods  (U.  5.)  441, 

(2)  Illustrations. —  A  railroad  company 
whose  road  was  covered  by  two  mortgages 
boujjht  of  a  manufacturer  a  large  lot  of 
steel  rails  which  were  absolutely  necessary 
for  the  continued  operation  of  the  road,  and 
save  therefor  three  notes  which  the  presi- 
dent promised  should  be  paid  out  of  the 
earnings  of  the  road.  Subsequently,  on 
a[>plication  of  the  holders  of  the  second 
mortgage  the  road  was  placed  in  the  hands 
of  a  receiver.  Held,  that  as  against  the 
holders  of  the  second  mortgage  the  equi- 
table claim  of  the  manufacturer  would  take 
l>rcference,  and  he  would  be  entitled  to  have 
tlie  earnings  of  the  road  in  the  receiver's 
hands  applied  first  to  the  payment  of  his 
claim.  Bound  \.  South  Carolina  R.  Co.,  51 
/////.  &*  Fng.  R.  Cas.  58,  47  Fed.  Rep.  30.— 
Ai'Pi.viNC.  Paine  v.  Central  Vt.  R.  Co..  118 
U.  S.  159,  6  Sup.  Ct.  Rep.  1019;  Milten- 
berger  v.  Logansport,  C.  &  S.  W.  R.  Co., 


106  U.  S.  288,  I  Sup.Ct.  Rep.  140;  Thomas 
V.  Peoria  &  R.  I.  R.  Co.,  36  Fed.  Rep.  817; 
Blair  v.  St.  Louis,  H,  &  K.  R.  Co.,  22  Fed. 
Rep.  47'. 

In  such  a  case,  however,  the  manufac- 
turer's claim  would  have  no  preference  over 
those  of  the  holders  of  the  first  mortgage. 
These  latter,  not  having  invoked  the  aid  of 
the  court,  although  they  tiled  cross-bills  in 
the  suit,  stand  in  their  legal  right.  Bound 
V.  South  Carolina  R.  Co.,  5 1  Am  &*  Eng.  R. 
Cas.  58,  47  Fed.  Rep.  30. 

On  August  13,  1875,  J„  whose  original 
contract  for  building  a  certain  railroad  was 
recorded  on  May  13,  1875,  made  out  a  writ- 
ten statement,  to  the  truth  and  correctness 
of  which  he  made  affidavit.  In  this  written 
act  he  set  up  a  claim  against  the  company 
for  extra  work  on  its  road  not  stipulated 
for  in  the  original  contract, and  for  damages, 
etc.,  for  which  privilege  was  claimed.  This 
sworn  statement  was  recorded  August  31, 
1875.  Held,  that  because  the  builder's 
privilege  resulting  from  the  recording  of 
the  contract  on  May  13,  1875,  was  not  re- 
corded on  the  same  day  it  was  executed  did 
not  make  it  null  so  as  not  to  take  prece- 
dence of  a  mortgage  which  was  not  re- 
corded for  three  months  afterwards.  State 
ex  ret.  v.  Recorder  0/  Mortgages,  28  La.  Ann. 

534. 

Between  an  investment  company  and 
certain  individuals  it  was  agreed  that  the 
former  should  furnish  substantially  all  the 
money  necessary  for,  and  to  be  used  in,  the 
construction  of  a  proposed  railroad,  and 
take  their  notes  therefor,  their  payment  to 
be  guaranteed  by  an  existing  railroad  com- 
pany controlled  by  such  individuals;  that 
they  should  execute  and  file  a  certificate  of 
incorporation  of  the  proposed  railroad,  and 
execute,  or  cause  to  be  executed,  in  its 
name  a  mortgage  on  its  anticipated  prop- 
erty to  secure  its  negotiable  bonds  to  be 
issued  by  it  and  deposited  with  the  invest- 
ment company  as  collateral  security  for 
said  notes.  At  the  date  of  the  execution 
and  delivery  of  such  bonds  and  mortgage, 
pursuant  to  said  agreement,  and  at  the 
date  of  the  record  of  such  mortgage,  such 
proposed  railroad  company  had  acquired 
no  property,  right  of  way.  or  franchises,  and 
had  taken  no  step  towards  the  acquisition  of 
either,  further  than  the  filing  of  its  certifi- 
cate of  incorporation  and  the  naming  of  its 
board  of  directors  and  officers,  of  all  which 
facts  the  investment  company  had  knowl- 


'> 


448 


MORTGAGES,  02-OS. 


I 


edge.  The  money  agreed  to  be  furnisliefl 
by  the  investment  company  was  by  it  paid 
over  to  the  individuals  aforesaid,  they  then 
being  olficers  of  tiie  proposed  railroad  com- 
pany, to  be  by  them  expt-ndcd  in  the  con- 
struction of  said  proposed  railroad ;  and 
such  individuals  entered  into  contracts  in 
the  name  of  sucli  railroad  company  for  labor 
and  material  used  in  the  building  of  its  said 
road,  but  failed  to  pay  therefor,  //f/r/,  that 
the  investment  company  should  be  regarded 
as  a  promoter  and  builder  of  the  railroad, 
and  W.1S  not  entitled  to  have  the  mortgage 
decreed  a  lien  upon  the  property  and  fran- 
chises of  the  railroad  constructed  superior 
to  the  statutory  liens  against  the  same  for 
labor  and  material  furnished  In  its  construc- 
tion. (Post,  J.,  with  Kyan  and  Irvine,  C.C., 
dissenting.)  Kilpatrick  v.  Kansas  City  &* 
/>'.  R.  Co.,  57  Am.  &-  Eng.  R.  Cas.  398,  38 
Neb.  620.  57  A'^.   W.  Rep.  664. 

02. when  not  HO  entitled.'*'— The 

rule  in  eqtiity  that  claims  for  matei-ials,  sup- 
plies, and  labor  furnished  a  company  before 
the  appointment  of  a  receiver  have  a  ref- 
erence over  the  lien  of  mortgage  bonds 
only  applies  to  railroads  on  account  of  their 
quasi  public  character,  and  does  not  apply 
to  mining  or  manufacturing  corporations. 
Fidelity  I.  &*  S.  D.  Co.  v.  Shenandoah 
Iron  Co.,  42  Fed.  Rep.  372. 

Where  a  railroad  company  draws  a  draft 
in  favor  of  itself,  which  it  indorses  to  a 
contractor  for  the  construction  of  its  road, 
this  will  make  the  company  liable  as  in- 
dorser  and  constitute  the  holder  of  the 
draft  a  general  creditor  of  the  company ; 
but  the  fact  that  the  contractor  used  the 
money  to  pay  for  labor  and  materials  used 
in  the  road  will  not  give  the  holder  of  the 
drafi  a  lien  on  the  road.  Central  Trust  Co. 
v.  liriiiges,  57  Fed.  Rep.  753. 

A  written  statement  of  a  builder,  made 
under  oath  and  recorded  on  the  same  day 
the  relator's  mortgage  was  recorded,  is  not 
a  detailed  statement  of  the  amount  due  as 
contemplated  and  required  by  article  3272 
of  the  La.  Civil  Code.  The  recordation  of 
it,  although  made  on  the  same  day  the 
mortgage  was  recorded,  has  no  effect  against 
the  rank  of  the  mortgage,  for  the  reason 
that  the  instrument  or  statement  from 
which  it  is  claimed  the  privilege  arises  was 

*  Claim  for  labor  in  orif(inal  construction  of 
road,  when  not  entitled  to  priority  over  mort- 
K»Ke  bonds,  see  57  Am.  &  Eng.  R.  Cas.  ao4, 
abstr. 


executed  the  day  before  it  was  recorded, 
whereas  article  3274  of  the  Civil  Code  de- 
clares that  a  privilege  "shall  confer  no 
preference  on  the  creditor  who  holds  it 
over  creditors  who  have  acquired  a  mort- 
gage, unless  the  act  or  evidence  of  the 
debt  is  recorded  on  the  day  the  contract 
was  entered  into."  Stale  ex  rel.  v.  Recorder 
of  Mort};ages,  28  La.  .Inn.  534. 

Tcnn.  Statute  of  1877,  ch.  72,  ptohibiiing 
railroad  companies  from  creating  liens  on 
their  property  in  preference  to  claims  for 
labor  or  materials  furnished,  only  applies 
where  they  are  so  furnished  that  the  railroad 
company  itself  is  liable  therefor,  and  does 
not  apply  when  they  are  furnislied  to  a  con- 
tractor individually,  without  establishing  a 
lien,  as  required  by  statute.  Central  Trust 
Co.  V.  liridges,  57  Fed.  Rep.  753. 

03.  ClaiinM  for  land  dainaKCN— Veii- 
dor'M  Hen.*— A  landowner's  title  to  dam- 
ages is  paramount  to  a  mortgage  given  by  a 
railroad  company  before  the  damages  have 
been  assessed  and  paid  or  secured  to  be 
paid.  Western  Pa.  R.  Co.  v.  Johnston, 
59  Pa.  St.  290.— Applied  in  Mercantile 
Trust  Co.  V.  Pittsburgh  &  W.  R.  Co.,  29 
Fed.  Rep.  732. 

It  is  clearly  settled  that  the  rights  and 
franchises  of  a  railway  company  do  not  pre- 
vail over  a  vendor's  lien ;  and  where  land 
was  sold  to  a  railway  company  for  the  pur- 
poses of  the  road,  and  a  mortgage  takeri  to 
secure  the  unpaid  purchase  money — held, 
that  the  vendor's  lien  was  not  thereby  lost. 
Gait  V.  Erie  &»  N.  R.  Co.,  15  Grant's  Ch. 
(U.  0637. 

04.  Claims  for  Iohs  of  Koods  car- 
ried.—A  claim  against  a  railroad  company 
for  property  lost  while  being  transported, 
originating  more  than  three  years  before  the 
road  went  into  the  hands  of  receivers,  is  not 
entitled  to  priority  over  mortgage  creditors, 
though  negotiations  were  pending  for  the 
settlement  of  such  claim  from  the  time  of 
the  loss  until  the  receivers  were  appointed. 
Central  Trust  Co.  v.  IVabash,  St.  L.  &•  P. 
R.  Co.,  28  Fed.  Rep.  871.  —  Followed  in 
Easton  v.  Houston  &  T.  C.  R.  Co.,  39  Am. 
&  Eng.  R.  Cas.  588,  38  Fed.  Rep.  12. 

95.  ClainiN  for  material  used  in 
origiiml  conHtruction.t— A  claim    for 

*  See  also  /u>st,  1 2fK 

f  When  debt*  incurred  for  conntruction  of 
road  before  insiolvency  entitled  to  priority  of 
payment  out  of  net  earnings,  see  45  Am.  St  Eng. 
R.  Cas.  94,  abttr.;  46  Id.  317,  abstr. 


MORTGAGES,  ««,  1>7. 


449 


materials  furnished  in  the  construction  of  a 
railroad  more  than  six  months  before  the 
institution  of  foreclosure  proceedings  and 
the  appointment  of  a  receiver  is  not  entitled 
to  payment  "as  operating;  expenses  "  out  of 
the  net  income  in  preference  to  niortgage 
creditors  unless  it  appears  that  moneys  had 
been  diverted  which  should  have  been  paid 
in  the  discharge  of  such  claim.  American 
L.  (S-  T.  Co.  V.  East  iS-  \V.  R.  Co.,  46  Fed. 
Rep.  101.  —  DlhiJNOUlSHiNU  Fosdick  v. 
Schall,  99  U.  S.  235 ;  Hale  7'.  Frost,  99  U.  S. 
389;  Union  Trust  Co.  v.  Souther,  107  U.  S. 
591.  2  Sup.  Ct.  Rep.  295;  Union  Trust  Co. 
V.  Illinois  Midland  K.  Co.,  117  U.  S.  462,6 
Sup.  Ct.  Rep.  809;  Hurnham  v.  Bowen,  in 
U.  S.  776,  4  Sup.  Ct.  Rep.  675.  ExiM.AiN- 
IN(;  Easion  v.  Houston  &  T.  C.  R.  Co.,  38 
Fed.  Rep.  12.  yiJuri.NG  Miltenberj.jer  v. 
Lo^ansport,  C.  &  S.  VV.  R.  Co.,  106  U.  S. 
2S7.  I  Sup.  Ct.  Rep.  140. 

UO.  (JIaiiiiH  for|K'rNoiialiiiJiiri(>M.*— 
Iowa  Code,  i5  1309,  making  judgments  for 
personal  injuries  prior  to  the  liens  of  mort- 
Images  and  trust  deeds,  cannot  be  extended 
to  embrace  claims  for  such  injuries,  even 
though  actions  therefor  be  pending,  and  the 
purchaser  of  a  railroad  takes  it  free  from 
such  claims  unless  the  same  have  been 
prosecuted  to  judgment.  Ihtrlittgton,  C.  R. 
iS~»  A/.  R.  Co.  V.  I'erry,  48  Imvn  458.  — FoL- 
lowKi)  IN  WhiteT/.  KeokukA  D.  M.  R.  Co., 
52  Iowa  97. 

Under  Tenn.  Act  of  March  24,  1877,  pro- 
hibiting railroad  companies  from  creating 
mortgages  or  other  liens  in  preference  to 
judgments  for  labor  or  materials  furnished, 
or  for  damages  to  persons  and  property  in 
the  operation  of  the  road,  a  sum  which  a 
company  has  agreed  to  pay  for  personal  in- 
juries constitutes  a  lien  on  the  road  superior 
to  that  of  mortg.Tge  creditors.  Frasier  v. 
F.ixst  Tenn.,  V.  l"-  G.  R.  Co..  40  Am.  <S-» 
Fng.  R.  Cas.  358,  88  Tenn.  138,  12  S.  IV.  Rep. 
5.?7. 

U7.  C'lntniN  for  rent  of  right  of 
way.f— A  mortgagor  held  a  leased  road 
tinder  a  written  lease  providing  for  rent,  and 
for  payment  for  depreciation,  and  for  the 
I)ayment  of  a  monthly  rent  by  the  lessor  to 
the  lessee  for  the  use  of  a  part  of  the  road. 
Successive  receivers  took  possession  of  the 
leased  road  and  operated  it  as  a  continua- 
tion of  the  mortgaged  road.    Part  of  the 


•See  also ^w/,  113. 
t  See  also  post,  114. 
6  D.  R.  D.— 39 


rent  which  accrued  before  C.  became  re- 
ceiver was  unpaid.  C.  after  he  became 
receiver  paid  the  rent  as  it  accrued.  The 
successive  receivers  collected  the  rent 
monthly  from  the  lessor  for  the  use  of  a 
part  of  the  road.  The  court  allowed  to  the 
lessor,  as  a  claim  preferred  to  the  first 
mortgage,  a  sum  based  on  the  actual  value 
of  the  use  of  the  road  by  the  receivers,  and 
for  depreciation,  and  allowed,  with  a  like 
preference,  claims  for  supplies  and  materials 
furnished  for  the  road  while  sr>  operated. 
Held,  that  the  allowances  were  proper,  and 
that  the  final  decree  was  not  erroneous  in 
not  requiring  the  accounts  of  the  receiver 
to  be  settled  before  paying  out  of  the  pro- 
ceeds of  sale  the  debts  allowed  against  liim, 
iKjr  in  ordering  the  sale  of  the  property  as 
an  entirety  without  separating  that  acquired 
by  the  receiver.  Miltenber^cr  v.  I.oaanS' 
port,  C.  &>  S.  U:  R.  Co..  12  //;//.  &^  Kng. 
R.  Cas.  464,  106  I'.  S.  286,  I  Sup.  Ct.  Rep. 
140.— Dlsri.NOfisHKi)  IN  Farmers'  L.  &  T, 
Co.  V.  Chicago  &  A.  R.  Co.,  43  Am.  &  Eng. 
R.  Cas.  436,  42  Fed.  Rep.  6 ;  Central  Trust 
Co.  V.  Wabash,  St.  L.  &  V.  R.  Co.,  46  Am. 
&  Eng.  R.  Cas.  301,  46  Fed.  Rep.  26.  FoL- 
LOWKDIN  Central  Trust  Co.  v.  Wabash,  St. 
L.  &  P.  R.  Co..  34  Fed.  Rep.  259;  Union 
Trust  Co.  V.  Illinois  Midland  R.  Co.,  117  U. 

S.  434- 

Two  railway  companies  entered  into  an 
agreement  for  the  use  of  a  portion  (A  the 
road  of  one  of  the  companies  by  the  other 
company  for  a  period  of  two  years.  The 
agreement  provided  that  the  contract  and 
any  damage  accruing  from  a  breach  thereof 
should  be  a  continuing  lien  upon  the  two 
roads,  "their  equipment,  and  income  in 
whosesoever  hands  they  may  come."  Held, 
that  such  an  agreement  created  no  lien  on 
the  property  of  the  company  using  a  por- 
tion of  the  other  company's  road  which 
takes  precedence  of  a  mortgage  executed 
after  a  breach  of  the  contract  prior  »o  the 
expiration  of  the  term.  Des  Moines  &*  Ft. 
D.  R.  Co.  V.  Wabash,  St.  L.&-  P.  R.  Co.,  43 
--////.  <S>»  £■«(,'.  A".  Cas.  694,  135  U.  S.  576,  10 
Sup.  Ct.  Rep.  753. 

A  turnpike  company,  by  a  contract  in  the 
form  of  a  deed,  executed  and  recorded, 
agreed  that  a  railroad  coni|)any  might  use 
a  certain  portion  of  its  road  for  a  rij^ht  of 
way  at  a  certain  stipulated  annual  rental: 
but  no  specific  lien  was  reserved,  and  after- 
wards the  railroad  company  became  insol- 
vent while  in  arrears  for  such  rent.    Held, 


450 


MORTGAGES,  08^100. 


|«« 


IK 


that  a  claim  therefor  did  not  constitute  a 
lien  on  tiie  road  as  against  subsequent 
morlKagees.  /itillnnore  &*  L.  TurnNke  Co. 
V.  MoaU,  71  Mil.  353.  18  At  I.  Kep.  658. 

1>M.  CltiiiiiM  lor  rolliiiK  Htuck,  loco- 
Ill»tiv«>M,  ett'.*  —  Wlierc  a  car  company 
leases  cars  to  a  railroad  company  at  a  cer- 
tain fixed  rental,  a  claim  for  such  rental  be- 
fore the  beginning  of  foreclosure  proceed- 
ing's and  the  appointment  of  a  receiver 
does  not  constitute  a  lien  in  preference  to  a 
mortgage  debt.  Tlioiiuxs  v.  Western  Car 
Co..  149  I/.  S.  95.  13  .S'w/).  Ct.  Kep.  824. 

Rent  due  for  rolling  stock  hired  by  a  rail- 
way company  is  a  "  working  expense  "  and  a 
"proper  outgoing"  within  the  meaning  of 
section  4  of  the  Railway  Companies  Act, 
and  is  entitled  to  priority  over  the  claim  of 
debenture  holders.  In  re  Cornwall  Min- 
erals R.  Co.,  48  L.  T.  41. 

Intervener  furnished  certain  personal 
properly  to  a  railroad  company  which  re- 
mained such,  and  after  the  road  had  |)assed 
into  the  hands  of  a  receiver  he  claimed 
that  his  lien  should  be  valued,  as  against 
mortgage  creditors,  at  its  original  amount, 
claiming  that  he  could  have  levied  execu- 
tion had  it  not  been  for  the  appointment  of 
a  receiver.  The  statutes  of  the  state  pro- 
vide that  personal  property  shall  be  subject 
to  execution  upon  judgment  against  the 
purchasers  for  tlie  purchase  price,  and  shall 
not  be  exempt,  except  in  the  hands  of  bona 
fide  purchasers  for  value.  Held,  that,  inas- 
much as  an  execution  would  have  been 
against  the  specific  property,  which  was 
necessarily  diminished  in  value  by  use,  the 
lien  could  not  be  given  for  more  than  the 
present  value  of  the  property.  Central 
Trust  Co.  v.  Te.xas  &*  St.  L.  K.  Co..  27  Fed. 
Kep.  178. 

UU.  ClaiiiiH  for  Hiipplies  U8<;d  in 
iiiakiiif;  rcpairfi.f— Neither  the  making 
of  necessary  repairs  upon  a  railroad,  under 
a  contract  with  the  company  giving  a  lien 
until  paid  for,  nor  payment  therefor,  in 
bonds  secured  by  a  subsequent  mortgage, 
give  'he  trustees  therein  any  lien  for  repairs 
agaii  .X  prior  encumbrancers.  Meyer  v. 
Johnston,  53  Ala.  237,  1 5  Am.  Ky.  Rep,  467, 

*  When  price  of  locomotives  sold  to  a  com- 
pany is  not  entitled  to  priority  where  road  is 
subsequent!;'  placed  in  hands  of  a  receiver,  see 
45  Am.  &  Kno.  R.  Cas.  93,  absfr.  See  also 
post,  llff. 

t  When  a  claim  for  betterments  and  repairs 
takes  priority  over  mortgage,  see  34  Am.  &  Eng. 
R.  Cas.  3SI.  ahslr.     See  also /ox/,  1  lO. 


The  protection  afforded  to  creditors  by 
the  statute  extends  to  creditors  engaged  in 
manual  labor  in  making  repairs  or  in  oper- 
ating the  road,  or  who  have  furnished  ma- 
terials to  be  used  therein,  as  iron,  ties,  lum- 
ber, v'ood,  coal,  oil,  etc.,  even  although 
such  creditors  have  taken  promissory  notes 
for  their  claims,  as  it  is  not  to  be  presumed 
from  a  change  in  the  form  of  indebtedness 
that  it  is  intended  to  waive  the  priority  of 
lien ;  but  such  protection  does  not  extend 
to  claims  for  services  of  directors,  superin- 
tendents, civil  engineers,  attorneys,  cashiers, 
paymasters,  or  heads  of  departments,  nor 
to  claims  for  rent  of  offices  occupied  by 
them,  nor  to  claims  for  telegraphing  or- 
dered by  them,  nor  to  claims  for  the  print- 
ing of  tickets,  bill  heads,  posters,  time- 
tables, etc.,  and  the  materials  used  therein. 
Poland  V.  Lamoille  Valley  R.  Co.,  4  Am.  &* 
Eng.  R.  Cas.  408,  52  Vt.  144. 

lOO.  Ciaiiiis  for  wiikch,  boanl  of 
laliorurx,  «te.*  —  In  foreclosing  a  mort- 
gage on  a  railroad,  the  net  earnings  must 
be  applied  first  to  the  payment  of  wages, 
supplies,  and  materials;  and  if  such  earn- 
ings have  been  diverted  to  the  payment  of 
debts  due  mortgagee',  or  for  betterments, 
the  amounts  due  for  such  wages  or  supplies 
constitute  a  lien  on  the  property,  and 
should  be  provided  for  in  the  foreclosure 
decree.  Calhoun  v.  St.  Louis  6>»  S.  E.  R, 
Co.,  9  liiss.  (U.  S.)  330,  14  Fed.  Rep.  9. 

Where  a  court  of  equity,  on  appointing  a 
receiver  for  a  railroad,  imposes  as  a  condi- 
tion an  order  requiring  the  payment  of 
wages  due  employes  for  a  certain  period 
prior  to  the  receivership,  such  an  order  is 
merely  a  personal  protection  given  to  the 
employes  as  a  matter  of  favor  because  of 
their  dependence  upon  their  daily  labor  for 
support,  and  does  not  include  a  claim  by  a 
merchant  for  supplies  or  rations  furnished 
to  the  employes  under  contract  with  the 
company,  although  such  rations  were 
charged  to  the  employes  as  part  of  their 
wages.  The  claim  is,  however,  entitled  to 
preference  over  the  payment  of  interest  on 
the  mortgage  bonds,  and  if  any  sums  ap- 
plicable thereto  have  been  used  to  pay  such 
interest,  or  for  permanent  improvements  by 
which  the  bondholders  have  been  benefited, 
the  claim  will  be  a  charge,  to  the  extent  of 


'Claims  for  board  and  supplies  furnished  la- 
borers treated  as  claims  for  wages,  see  45  Am.  & 
Eng.  R.  Cas.  65a,  aistr.    See  also  pott,  117. 


MORTGAGES,  101,  lOiS. 


461 


the  money  so  used,  upon  any  earnings  in 
the  hands  of  the  receiver,  or,  if  tiiese  are 
insutlicient,  upon  the  proceeds  of  the  sale 
of  the  road.  Finance  Co.  v.  Charleston,  C. 
(5-  (.'.  A'.  Co.,  SI  /////.  &*  En^.  R.  Cas.  55,  49 
/•',,/.  A'ep.  693.— Explaining  Fosdick  v. 
Scliall.  99  U.  S.  335. 

KM.  CIntniN  of  {general  cre<litorN. 
— Cicflitors  obtaining  a  general  equitable 
licii  ii^ainsl  an  insolvent  corporation  upon 
funds  brought  into  court  for  distribution 
have  a  lien  only  against  the  corporation  and 
its  shareholders,  and  not  against  lien  hold* 
ers  who  have  specific  prior  liens  upon  the 
corporate  property  created  before  the  court 
received  the  fund.  Farmers'  L.  &*  T.  Co,  v. 
Ciiiiula  &^  St.  L.  K.  Co.,  47  Am,  &^  Ft^. 
A'.  Cas.  271,  127  Ind.  250,26  N.  E.  Rep, 
784. 

The  claims  of  a  general  creditor  can 
never  lake  priority  over  the  mortgage  cred- 
itors, except  when  it  is  shown  that  such 
general  creditor  has,  upon  the  principles  of 
courts  of  equity,  a  superior  equity  to  the 
lien  creditors.  No  general  rule  can  be  laid 
down  on  the  subject,  but  each  claim  must 
be  determined  upon  the  particular  facts 
showing  the  peculiar  equity.  Addison  v. 
Lewis.  9  Am.  &*  Eng.  R.  Cas.  702,  75  Va. 
701. 

A  railroad  company  entered  into  an  ar- 
rangement by  which  its  indebtedness  was 
scaled,  and  an  old  mortgage  was  surren- 
dered and  a  new  one  issued.  A  certain 
bondholder  who  was  secured  by  the  old 
mortgage  surrendered  his  bonds,  and  re- 
ceived new  ones,  except  for  a  small  balance 
which  was  bfelow  the  amount  for  which  a 
sin^de  bond  was  issued.  Held,  that  he  was 
entitled  to  a  lien  equal  with  the  other  mort- 
j;a),'ees  for  the  whole  amount  due,  including 
the  small  amount  for  which  no  bond  is- 
sued, niair  V.  St.  Louis,  H.  6-  A'.  R.  Co., 
23  Fed.  Rep.  524. 

loa.  DclttM  eoiitraotecl  in  carry- 
ing oil  (>or|iornte  biiNiiiesN.— Where  a 
mortgaged  railroad  goes  into  the  hands  of 
a  receiver,  current  expenses  should  be  paid 
from  current  earnings,  but  where  the  earn- 
ings are  diverted  to  payment  of  the  mort- 
gage securities,  such  securities  are  charge- 
able in  equity  with  such  earnings  thus  im- 
properly diverted.  Burnham  v.  Bowen,  17 
Am. &*  Ettg.  R.  Cas.  308,  i\i  U.  S.  776,  4 
Sufi.  Ct.  Rep.  675.— Following  Fosdick  v. 
Schall,  99  U.  S.  252  ;  Huidekoper  v.  Hinck- 
ley Locomotive  Works,  99  U.  S.  260.— Dis- 


TiNGiMSHKD  IN  Farmers'  L.  &  T.  Co.  «/.  Chi- 
cago &  A.  R.  Co.,  43  Am.  &  Eng.  R.  Cas. 
436,  42  Fed.  Rep.  6  ;  American  L.  &  T.  Co. 
V.  East  &  W.  R.  Co.,  46  Fed.  Rep.  loi.  FoL- 
LOWKD  IN  United  States  Trust  Co.  7:  New 
York.  W.  S.  &  B.  R.  Co..  25  Fed.  Rep.  797  ; 
Farmers'  L.  &  T.  Co.  v.  Kansas  City,  W.  & 
N.  W.  R.  Co.,  53  Fed.  Rep.  182.  Fol- 
lowed AND  QUOTED  IN  Mcllhenny  f.  Binz, 
80  Tex.  I.  Recognized  in  United  States 
Trust  Co.  V.  New  York,  W,  S.  &  B.  R.  Co., 
25  Fed.  Rep.  ioo.— Poland  \.  Lamoille  Val 
ley  R.  Co.,  4  Am.  <S~»  Etig.  R.  Cas.  408,  52 
Vt.  144. 

Where  current  earnings  are  thus  diverted, 
and  the  mortgagees  take  the  property  at  a 
strict  foreclosure  sale,  they  take  it  subject 
to  the  charge  for  current  expenses  to  the 
amount  of  the  earnings  diverted,  and,  if  not 
paid,  the  charge  may  be  enforced  by  sale  of 
the  property.  Burnham  v.  Bowen,  17  Am. 
&*  Eng.  R.  Cas.  308,  in  U.  S,  776,  4  Sup. 
Ct.  Rep.  675. 

A  company  whose  road  was  heavily  mort- 
gaged made  an  arrangement  to  operate  the 
road  in  connection  with  other  roads,  all  of 
which  were  under  a  general  management, 
but  the  business  of  each  was  kept  separate. 
The  other  companies  loaned  such  company 
money  to  pay  taxes,  employes,  and  balances 
due  themselves.  Held,  that  such  loans 
were  within  the  meaning  of  Miss.  Code,  § 
1033,  providing  that  no  mortgage  on  the 
income,  future  earnings,  or  rolling  stock  of 
a  railroad  should  be  valid  as  against  debts 
contracted  for  carrying  on  the  business  of 
the  corporation.  Farmers'  Z..  &^  T.  Co.  v. 
Vicksburg  &*  M.  R.  Co.,  33  Fed.  Rep.  778. 

Miss.  Code,  §  1033.  does  not  £onstitute 
such  a  debt  a  prior  lien,  but  merely  prevents 
those  claiming  under  a  prior  mortgage  from 
setting  it  up  to  defeat  such  debt.  Farmers' 
L.  «&>•  T.  Co.  V.  Vicksburg  &*  M.  R.  Co..  33 
Fed.  Rep.  778. 

The  class  of  debts  to  be  thus  paid  includes 
taxes,  payment  of  officers  and  employes, 
for  materials  and  supplies  furnished  neces- 
sary to  keep  the  road  and  its  rolling  stock 
in  a  safe  condition,  balances  due  to  other 
lines  of  transportation  for  tickets  and 
freights,  damages  which  may  be  incurred  in 
operating  the  road,  and  whatever  may  be 
necessary  in  the  successful  maintenance 
and  operation  of  the  road.  Farmers'  L.  &* 
T.  Co.  V.  Vicksburg  &»  M.  R.  Co.,  33  Fed. 
Rep.  778. 

Current  debts  incurred  in  operating   a 


i 


/i 


!fl 


m  1 


458 


MOKiGAUES,   10»-IUU. 


railroad  are  to  be  paid  out  of  the  current 
eariiin(;s,  as  against  mortga};e  bondholders, 
whetlier  accruinfj  before  or  after  the  road 
goes  into  the  hands  of  a  receiver.  Farmers 
L.  St*  T.  Co.  v.  Vkkiburg  &>  M.  R.  Co.,  33 
/■<•(/.  AV/.  77  S. 

lOii.  U«rl>tH  of  LM>iiHoli(liitiiiK  com- 
puny.  — A  corporation  which  was  indebted 
to  plaintiff  and  others  transferred  its  assets 
to  a  new  corporation,  which  was  composed 
substantially  of  the  same  persons,  and 
which  assumed  the  liabilities  of  the  old  com- 
pany ;  but  such  transfer  was  not  recorded, 
and  subsequently  the  new  company  exe- 
cutcd  a  mortgage  to  secure  bonds  issued. 
//M,  that  such  mortgage  took  precedence 
over  plaintiff's  claim,  which  was  not  reduced 
to  judgment  until  after  the  mortgage  was 
executed,  and  of  which  the  mortgagees  had 
no  actual  notice,  /i/at'r  v.  5/.  Louis,  //.  &* 
K.  /'.  Co.,  25  Fed.  Kep,  684. 

A  statute  authorizing  the  consolidation 
of  two  companies  provided  that  the  debts 
of  the  existing  companies  should  not  be 
affected  by  the  consolidation,  and  author- 
ized the  company  to  dispose  of  any  property 
which  belonged  to  either  of  the  old  com- 
panies. The  consolidated  company  issued 
bonds  and  secured  them  by  what  it  termed 
a  first  mortgage.  Held,  that  outstanding 
debts  of  either  of  the  old  companies  consti- 
tuted a  prior  lien  over  such  bonds,  as  tiie 
purchasers  of  such  bonds  were  chargeable 
witli  notice  of  the  provisions  of  the  statute 
authorizing  the  consolidation.  Spence  v. 
Mobile  &»  M.  R.  Co.,  79  Ala.  576.— Re- 
viewed IN  Mobile  &  M.  R.  Co.  v.  Gilmer, 
85  Ala.  422,  5  So.  Rep.  138. 

104.  Judgment  creditors.*— Mort- 
gagees of  personal  property  of  a  railroad 
company  out  of  possession  are  to  be  post- 
poned to  creditors  who  have  obtained  a  lien 
by  judicial  process.  Merchants'  Bank  v. 
Petersburg  Ji.  Co.,  12  P/iila.  (Pa.)  482. 

A  railroad  company  whose  road  is  under 
mortgage  cannot  defeat  the  right  of  its 
creditors  to  sell  the  equity  of  redemption 
by  executing  a  deed  of  trust  with  lon;^  time 
to  run.  etc.  Nor  are  the  judgment  creditors 
limited,  on  a  bill  to  obtain  satisfaction  of 
their  judgments,  to  the  earnings  or  the  in- 
come of  the  company.  Vicksburg  &»  M.  K. 
Co.  V.  McCutchen,  52  Miss.  645. 

A  general  judgment  creditor  of  a  railroad 
garnisheed  the  officers    of  the  company. 


The  road  at  the  time  was  mortgaged,  but 
the  trustees  did  not  demand  possessiun  of 
the  road  or  the  income.  Held,  that  the 
judgment  creditor  was  entitled  to  the  in- 
come between  the  date  of  a  decree  of  fore- 
closure and  the  appointment  of  a  special 
receiver,  or  so  long  as  the  company  contit)- 
ued  to  operate  the  road.  (Jilman  v.  ////■ 
nois  &*  M.  Tel.  Co.,  1  McCrary  (U.  S.)  170. 
— Following  Galveston,  H.&  H.  R.  Co.  v. 
Cowdrey,  11  Wall.  (U.  S.)  459. 

105.  Lieiitt  for  tuxeN.— A  decree  nf 
the  United  States  circuit  court  that  certain 
personal  property  of  a  railway  under  mort- 
gage be  sold,  "  subject  to  all  claims  legally 
due  for  taxes  which  are  a  lien  "  on  the  same. 
and  a  direction  in  a  certain  other  order  that 
the  proceeding  should  be  "  without  preju- 
dice to  any  of  the  rights  or  Hens  "  that  the 
treasurer,  etc.,  had  on  the  property  for  taxes, 
will  preserve  only  such  liens  as  are  prior  to 
rights  under  the  mortgage.  Ream  v.  Stone, 
102  ///.  359. 

100.  MecliauicH*  lieiiM.'*'— A  lien  ac- 
quired by  tiling  notice  in  one  county  extends 
to  the  entire  road  within  the  state,  and  a 
subsequent  mortgagee  of  the  entire  road 
takes  his  mortgage  subject  to  such  lien. 
Farmers'  L.  «S-  T.  Co.  v.  Canada  6-  St.  L. 
R.  Co.,  ill  Am.  >S-  Eng.  R.  Cas.  271, 127  Ind. 
250,  26  A^.  E.  Rep.  784. 

A  mortgage  of  a  railroad  yet  to  be  built  to 
secure  bonds  issued  to  raise  money  for  the 
construction  of  said  railroad  is  junior  to  a 
mechanic's  lien  acquired  in  furnishing  ma- 
terial for  or  performing  labor  upon  such 
railroad,  unless  it  isafTirmatively  shown  that 
the  holders  of  such  bonds  paid  value  for 
them  before  notice  of  such  liens.  Farmers' 
L.  &>  T.  Co.  V.  Canada  <&*  St.  L.  R.  Co.,  47 
Am.&'Eng.  R.  Cas.  271, 127  Ind.  250,  26  N. 
E.  Rep.  784. 

The  lien  given  to  mechanics  and  material- 
men on  a  railway  by  Iowa  statutes  dates 
from  the  commencement  of  the  construction 
of  a  railroad,  and  is  therefore  prior  to  a 
mortgage  executed  while  the  road  is  build- 
ing, but  before  the  particular  work  was  done, 
or  the  materials  furnished  for  which  the  lien 
is  claimed.  Taylor  v.  Burlington,  C.  R.  &* 
M.  R.  Co.,  t^  Dill.  (U.  S.)  570.  Neilson  v. 
Iowa  Eastern  R.  Co.,  44  Iowa  71. 

The  lien  of  a  mechanic,  under  Iowa  Code, 
§§  2130-2139,  for  repairs  upon  a  completed 
railway  is  not  paramount  and  superior  to 


*  See  also /0x/,  124. 


*  See  also  ^M/.  126. 


MORTGAGES,  107. 


463 


the  lien  of  a  mortgage  executed  after  the 
cumincnccmcnt  and  before  the  completion 
of  the  road.  Nor  will  the  lien  of  the  me- 
chiinic  upon  the  particular  work  performed 
by  him  take  precedence  of  the  mortgage, 
when  the  improvements  he  has  made  con- 
stitute an  integral  part  of  the  road.  Hear 
V.  liurliuj^ton,  C.  R.  &*  At.  K,  Co.,  48  Iowa 
619. 

A  landowner  agreed  to  convey  lands  for  a 
station  and  depot  in  consideration  that  the 
company  would  erect  a  depot  building  there- 
on. The  company  employed  plaintiflF  to  do 
the  nias(m  work  on  such  building,  and  upon 
completion  of  his  work,  but  before  the 
building  was  completed,  he  filed  a  certificate 
of  alien  thereon.  A  conveyance  of  the  land 
was  never  executed.  Prior  to  such  agree- 
ment the  company  had  mortgaged  its  fran- 
chises and  entire  property,  both  present  and 
after-acquired.  HelJ,  that  plaintiff's  lien 
took  precedence  over  tiie  mortgage  lien. 
liotsford  V.  New  Haven,  At.  &•  W.  A'.  Co., 
41  Coufi.  454,7  //w.  A>.  AV/.  153.— Review- 
ing Rider  v.  Stryker,  4  T.  &  C.  (N.  Y.)  399. 
—Distinguished  in  Toledo,  D.  &  B.  R. 
Co.  7>.  Hamilton,  43  Am.  &  Eng.  R.  Cas. 
476,  134  U.  S.  296. 

3.  Priority  over  Equities  Subsequently 
Arising. 

107.  In  general.— An  agreement  by 
the  purchasers  of  a  railroad  to  pay,  as  part 
of  the  consideration,  a  liquidated  claim 
against  the  road,  not  reduced  to  judgment, 
does  not  create  a  lien  in  favor  of  the  holder 
of  the  claim  that  will  take  precedence  over 
a  mortgage  executed  by  the  purchasers  to 
secure  an  issue  of  bonds.  F'ogj^  v.  Rlair, 
133  U.  S.  534.  10  Sup.  a.  Hep.  338.— FOL- 
l.i)WKD  in  Thompson  v.  White  Water  Val- 
ley R.  Co.,  132  U.  S.  68. 

Claims  for  moneys  received  by  a  connect- 
ing road  on  through  fares  and  freights  for 
which  it  may  be  accountable  in  part  to  con- 
necting lines  constitute  nothing  more  than 
open  accounts,  which  stand  on  the  same 
footing  as  other  unsecured  debts.  Jessup 
V.  Atlantic  &-  G.  A\  Co.,  3  H^oods  (U.S.) 
441. 

Where  a  company  agrees  to  take  up 
lumber  on  a  side  track  ordinarily  used  only 
for  obtaining  sand,  but  subsequently  refuses, 
a  claim  against  the  company  by  the  owner 
of  the  lumber  for  such  refusal  does  not 
constitute  a  ,>rior  claim,  after  the  road  goes 
into  the  hands  of  a  receiver,  as  against  the 


mortgage  bondholders.  Central  Trust  Co. 
V.  U'abas/i,  S-.  L.  &*  P.  A'.  Co.,  32  /•></. 
Jiep.  566. 

Where  a  deed  conveying  a  right  of  way 
stipulates  that  the  company  may  change  the 
location  of  its  road  upon  paying  an  equita- 
ble difference,  and  a  change  has  been  made 
and  a  difference  paid  before  the  landowner 
mortgages  his  lands  to  secure  a  pre-existing 
debt,  the  new  location  is  protected  as  against 
the  mortgage.  Aterritt  v.  Northern  A'.  Co., 
12  tiarb.  {N.  y.)  605. 

Mortgagees  of  a  railroad  which  is  in  the 
hands  of  a  receiver  have  no  greater  interest 
in  the  earnings  of  the  road  than  unse- 
cured creditors,  unless  the  trustee  in  the 
mortgage  has  taken  possession  of  the  prop- 
erty, or  the  receiver  is  appointed  at  his  or 
the  bondholders'  instance.  State  v.  East 
Line  &*  A'.  R.  A'.  Co.,  ( Tex.)  48  Am.  &*  Eng. 
A\  Cas.  656. 

The  funds  in  the  hands  of  a  receiver  of  a 
railroad  appointed  in  a  suit  to  foreclose  a 
mortgage  executed  by  the  company  must 
be  applied  to  the  satisfaction  of  the  lien  of 
the  mortgage  creditors,  and  not  to  the  pay- 
ment of  debts  due  to  the  general  creditors. 
Addison  v.  Lewis,  9  Am.  &•  Eng.  R.  Cas. 
702.  75  Va.  701. 

These  rules  are  subject  to  this  modifica- 
tion, however:  the  net  earnings  while  the 
road  is  in  the  possession  of  a  receiver  ap- 
pointed by  the  court  may  be  applied  to  the 
payment  of  claims  having  superior  equities 
to  that  of  the  bondholders.  Addison  v. 
Letvis,  9  Am.  &*  Eng.  R.  Cas.  702,  75  Va. 
701. 

These  claims  are  confined  to  such  out- 
standing debts  for  labor,  supplies,  equip- 
ments, or  permanent  improvements  of  the 
mortgaged  property  as  may,  under  the  cir- 
cumstances of  the  particular  case,  appear  to 
be  reasonable.  Addison  v.  Letuis,  9  Am.  &* 
Eng.  A\  Cas.  702,  75  F<i.  701. 

A  railroad  corporation,  being  indebted  to 
three  classes  of  bondholders,  secured  by 
first,  second,  and  third  mortgages,  made  an 
arrangement  with  most  of  the  bondholders 
under  which  a  new  bonded  debt  was  to  be 
created,  secured  by  a  new  mortgage.  A 
large  majority  of  the  bondholders  (W.,  who 
held  bonds  secured  by  the  second  and  third 
mortgages,  being  one  of  them)  came  in 
.  under  this  arrangement,  and  exchanged 
their  old  for  the  new  bonds.  The  mort- 
gaged premises  were  afterwards  sold  under 
a  decree  to  foreclose  the  new  mortgage,  and 


^$^ 


t  A 


454 


MORTGAGES,  108-111. 


I 


llic  proceeds,  after  paying  off  the  creditors 
under  tliu  first,  second,  and  third  mortgages 
who  liad  not  come  into  the  arrangement, 
were  insufficient  to  satisfy  liie  bonds  of  a 
class  which,  by  the  terms  of  tlic  new  mort- 
gage, had  precedence  over  tliose  of  the  class 
to  which  VV.'s  new  bonds  belonged,  nor 
would  the  proceeds  ol  the  sale  have  been 
sufficient  to  satisfy  the  bonds  secured  by 
the  first  mortgage  if  no  exchanges  had  been 
made.  VV.  then  ir.ierveiied  by  petition, 
alleging  that  !ie  had  exchanged  his  old  for 
new  bonds  under  a  separate  agreement  that 
if  all  the  oid  bondholders  did  not  come  into 
the  arrangement  his  old  bonds  should  be 
returned  to  him,  and  he  be  restored  to  all 
his  rights  thereunder.  He  prayed  that  his 
old  bonds  be  returned,  and  that  he  be  paid 
out  iif  tlie  proceeds  of  the  sale  as  a  creditor 
under  the  second  and  third  mortgages. 
Held,  that  VV.,  assuming  his  allegations  to 
be  true,  had  no  equity  to  the  relief  he  asked 
as  against  purchasers  of  the  new  bonds 
without  notice  of  his  equity.  Ex  parte 
White,  2  So.  Car.  469. 

108.  AdvanceH  to  pay  debt  fur 
construction.* — One  who  prys  a  debt 
incurred  in  the  construction  of  a  railroad 
has  no  superior  equity  over  the  bondhold- 
ers unless  it  appears  that  it  was  done  under 
such  circumstances  as  to  estop  the  bond- 
holders from  asserting  their  lien  as  against 
such  claim.  It  is  not  sufficient  to  show 
that  the  original  indebtedness  was  incurred 
at  the  request  of  the  bondholders.  Kelly 
V.  Green  Bay  &*  M.  K.  Co.,  10  Biss.  ((/.  S.) 
151,  5  Fed  Hep.  846. 

109.  Clnini.s  for  labor.f— Claims  for 
labor  performed  in  the  construction  of  a 
mortgaged  railroad  will  not  be  given  prefer- 
ence over  the  mortgage  debt  of  a  prior  date, 
though  mechanics'  or  laborers'  liens  may 
have  been  secured.  Tomtney  v.  Spartan- 
burii  Sf  A.  R.  Co.,  4  Hughes  (U.  S.)  640,  7 
Fed.  Rep.  429. 

Although  the  statute  of  a  state  giving 
claims  for  labor  a  superior  lien  to  that  of 
mortgages,  and  nroviding  that  such  lien 
might  be  enforced  by  the  sale  of  the  railroad 
in  a  suit  to  which  it  should  not  be  necessary 
to  make  the  bondholders  parties,  though 
they  might  intervene,  was  passed  prior  to 
the  making  of  a  mortgage,  the  trustees  un- 
der the  mortgage  or  the  bondholders  are. 

*  See  also  ante,  89. 

t  See  also  aM/^  01,02. 


not  bound  by  a  judgment  rendered  in  a  suit 
brought  under  the  statute  by  an  alleged 
lien-holding  creditor  to  which  they  were 
not  parties,  and  they  may,  in  a  subsequent 
suit  in  a  federal  court  for  the  appointment 
of  a  receiver,  compel  such  creditor  to  prf)ve 
affirmatively  the  existence  and  priority  of 
his  lien.  Hassall  v.  \\'ilco.v,  40  Am.  &> 
Eng.  R.  Cas.  385,  130  (/.  S.  493,  9  Sup.  Ct. 
Rep.  590. 

110.  Claims  for  legal  scrvieen.*- 
A  claim  against  a  company  for  legal  ser- 
vices rendered  eighteen  months  before  the 
road  went  into  the  hands  of  a  receiver  is 
not  entitled  to  anv  preference  ;  but  where 
the  attorney  is  to  be  paid  an  annual  salary 
which  falls  due  a  short  time  before  the  road 
goes  into  the  hands  of  a  receiver,  his  claim 
constitutes  a  prior  lien.  Jiliu'r  v.  St.  Louii, 
H.  <S-  A'.  R.  Co.,2i  Fed.  Rep.  521. 

But  where  the  attorney  pays  off  sundry 
small  judgments  against  the  company  only 
a  few  weeks  before  the  road  goes  irto  the 
hands  of  the  receiver,  under  an  agreement 
that  he  shall  be  repaid  in  a  short  time,  he 
has  no  priority  for  the  amount  thus  paid 
over  the  mortgage  bondholders.  Blair  v. 
St.  Louis,  H.  &•  A'.  R.  Co..  23  Fed.  Rep. 
521. 

A  claim  against  a  company  for  legal  ser- 
vices in  maintaining  the  validity  of  certain 
municipal  bonds  issued  in  aid  of  the  road  is 
not  entitled  to  priority  over  mortgage  bonds, 
especially  where  the  services  were  rendered 
two  years  before  the  road  went  into  the 
hands  of  a  receiver.  Finance  Co.  v.  Charles- 
ton, C.  Sf  C.  R.  Co.,  12  Fed.  Rep.  678.-018- 
TiNGUi.sHiNn  Fosdick  v.  Schall,  99  U.  S. 
235-  QuoriNC,  Kneeland  v.  American  L. 
&  T.  Co.,  136  U.  S.  97,  10  Sup.  Ct.  Kep. 
950. 

The  fact  that  the  attorney's  services  rr- 
sulted  in  benefit  to  the  mortgage  bond- 
holders will  not  justify  making  the  claim 
therefor  a  prior  lien  when  the  bondholders 
were  not  parties  to  the  employment  of  the 
attorney.  Finance  Co.  v.  Charleston,  C.  <&- 
C.  R.  Co.,  52  Fed.  Rep.  678.— Following 
Hand  v.  Savannah  &  C.  R.  Co.,  21  So.  Car. 
162. 

111.  Claims  for  Iohh  of  i;oods.  by 
Are.— A  claim  for  the  value  of  goods  lost 
by  fire  while  in  the  possession  of  a  railroad 

*  When  cinim  for  leRaJ  services  not  en'itlid  to 
vriority  over  mortKage  bond.'  in  foreclosure 
proceeding,  see  57  A.M.  &  E.ng.  R.  Cas.  203, 
abstr. 


MORTGAGES,  112-114. 


45i 


company  as  carrier,  and  before  the  road  is 
pluced  in  the  hands  of  a  receiver  in  a  fore- 
closure suit,  is  not  entitled  to  be  allowed  as 
prior  in  equity  to  the  claim  of  bondholders. 
ICiiston  V.  Houston  &*  T.  (.'.  A'.  Co.,  39  Am. 
t^  ling.  A',  fas.  58S,  38  /-V//.  A'ep.  12.— Fol- 
lowing Central  Trust  Co.  v.  Wabash,  St. 
L.  &  P.  K.  Co.,  28  Fed.  Rep.  871 ;  Central 
Trust  Co.  V.  East  Tenn.,  V.  &  G.  R.  Co.,  30 
Fed.  Rep.  895.— Exi-lainku  in  American 
L.  &  T.  Co.  V.  East  &  W.  R.  Co.,  46  Fed. 
Kep.  loi. 

112.*.CliiiiiiH  fur  iimteriulM.*- Rails 
and  other  articles  which  become  allixed  to 
and  a  part  of  a  railroad  covered  by  a  prior 
mortgage  will  be  held  by  the  lien  of  such 
mortgage  in  favor  of  />0Hit  fide  creditors,  as 
against  any  contract  between  the  furnisher 
of  the  property  and  the  railroad  company, 
containing  a  stipulation  that  the  title  to  the 
property  shall  not  pass  till  the  property  is 
paid  for,  and  reserving  to  the  vendor  the 
right  to  remove  the  property.  Porter  v. 
Pittsburg  liessemer  Steel  Co.,  30  A>n.  <S^  /'-ng. 
A'.  Cas.  495,  122  I/,  a.  267,  7  Sup.  Lt.  Rep. 
t2o6. 

A  company  executed  a  mortgage  to  se- 
cure the  full  amount  of  a  bond  issue;  but 
n;any  of  the  bonds  were  sold  at  a  discount, 
and  it  was  judicially  determined  that  the 
holders  were  not  entitled  to  more  than  the 
amount  actually  paid  for  the  bonds.  I' lain- 
tifl,  who  had  sold  the  company  materials  to 
use  in  constr:<cting  the  road,  took  in  pay- 
ment bonds  at  80  per  rent.,  with  an  agree- 
ment that  if  the  company  should  at  any 
time  sell  other  bonds  at  a  lower  rate  lie 
should  have  additional  bonds,  so  as  to 
make  u|>  full  payment  of  the  materials. 
The  company  became  insolvent  and  sold 
bonds  as  hjw  as  40  per  cent.  Held,  that 
plaintiflf  was  not  entitled  in  a  foreclosure 
suit  to  have  his  equity  enforced.  Vose  v. 
lironson,  6  V.'all.  (('.  S.)  452. 

1 1:1.  CIniiiis  Tor  porNoiial  iiiJuricN.f 
—One  who  holds  a  judgment  against  the 
receivers  of  a  railroad  for  a  persf)na1  injury 
received  while  a  passenger  is  not  entitled 
to  priority  of  payment  over  first  mortgage 
bonds  unless  the  order  appointing  the  re- 
ceivers so  provided.  Davenport  v.  Ala- 
bama 6-  C.  h'.  Co.,  2  Woods  (U.  S.)  519.— 
Quoted  in  Ex  parte  Brown  9  Am.  &  Eng. 
R.  Cas.  723,  15  So.  Car.  518. 

*  See  also  niiie,  t>l,  OSS, 
f  See  also  anlt,  UB< 


114.  ClaiiiiN  for  rent  of  IcnKed 
rou<l.*—  A  lessor  of  a  railroad  who  has  re- 
ceived as  rent  more  than  the  net  earnings 
of  the  road  under  the  lease  has  no  equitable 
claim  for  rent  due  on  the  fund  arising  from 
a  foreclosure  sale  over  those  having  mort- 
gage liens.  St.  Louis,  A.  &»  T.  H.  A\  Co.\. 
Cleveland,  C,  C.  H^  I,  A'.  Co.,  33  -•/;//.  &*  Eng. 
a:  Cas.  16,   125  I/.  S.  658,  8  Sup.  Ct.   Kep. 

lOII. 

An  insolvent  railroad  company,  on  its 
own  petition,  procured  the  appointment  of 
receivers  to  take  possession  of  its  road  and 
lines  leased  by  it.  In  the  same  suit  the 
trustees  of  a  mortgage  upon  the  company's 
road  asked  and  were  denied  an  appoint- 
ment of  receivers  or  an  extension  of  the 
receivership  under  their  cross-bill.  The 
trustees,  however,  obtained  a  decree  of  fore- 
closure and  a  sale  of  the  property  thereon. 
Held,  that  the  rentals  of  the  leased  lines 
while  in  the  possession  of  the  receivers  did 
not  become  a  charge  upon  the  corpus ol  the 
property  having  priority  over  the  mortgage 
debt.  Central  Trust  Co.  v.  Wabash,  St.  L. 
&*  /'.  A'.  Co.,  46  Am.  &»  Eng.  A'.  Cas.  301, 
46  Fed.  A'ep.  26.— Al'l'LVlNd  Central  Trust 
Co.  V.  Wabash,  St.  L.  &  P.  R.  Co..  38  Fed. 
Rep.  63.  Criticisinc;  Central  Trust  Co.  w. 
Wabash,  St.  L.  &  P.  R.  Co.,  34  Fed.  Rep. 
259.  Dl.sTiNC.UlsHiNG  Miltenbcrger?'.  Lo- 
gansport,  C.  &  £  V.  A.  Co.,  106  U.  S.  286. 
I  Sup.  Ct.  Rep.  140.  yuoTiNG  St.  Louis. 
A.  &  T.  H.  R.  Co.  7'.  Cleveland.  C.  C.  &  I. 
R.  Co.,  125  U.  S.  668.  8  Sup.  Ct.  Rep.  loi  1 ; 
Knceland  v.  American  L.  &  T.  Co.,  136  U. 
S.  89,  lo  Sup.  Ct.  Rep.  050.  Rkviewing 
Fosdick  V.  Schall,  99  U.  S.  235. 

The  receiver  appointed  look  possession 
of  a  line  which  had  been  leased  to  the  in- 
solvent company  and  operated  it  for  a  cer- 
tain time,  keeping  its  accounts  separate, 
however,  Jind  applying  none  of  its  earnings 
for  the  benefit  of  the  general  system.  The 
court  in  appointing  the  receiver  expressly 
recognized  the  right  of  the  lessor  to  take 
possession  on  making  proper  application 
therefor.  Held,  that  the  receiver  did  not 
become  the  assignee  of  the  lease  or  adopt 
it  so  as  to  render  the  agreed  rentals  a  lien 
on  the  earnings  of  the  general  system  supe- 
rior to  'he  rights  of  the  general  mortgagees. 
Quincy.  Af.  Z-^  P.  A\  Co.  v.  Humphreys,  51 
Am.  &^  Eng.  A'.  Cas.  3^,  145  U.  S.  82,  12 
Sup,  Ct,  A'ep.  787 ;  affirming  34  Fed.  Aep. 

*  See  also  iitilt-,  1)7« 


¥ 


\> 


3 


! 


M 


45G 


*    . 

I     : 
ill 


I 

iinKii 


MORTGAGES,  115-110. 


359.— Applyinc.  Chicago  L'nion  Hank  t: 
Kansas  City  Bank,  136  U.  S.  223.  yt oiiNt; 
(jaither  t.  StockbriflKc  67  Md.  222;  In  re 
Oak  Pits  Colliery  Co  ,  21  Ch.  L).  322.— Ap- 
plied IN  Park  V.  New  York.  L.  ::.  &  W.  K. 
Co.,  57  Fed.  Kep.  7yy.  Foi.i.dWKD  IN  St. 
Joseph  &  St.  L.  R.  Co.  j-  Humphreys,  145 
U.  S.  105. 

It  appt-arini;  that  the  net  earniiifrs  of  the 
yi-neral  system  were  liut  a  small  (raction  of 
tile  preferenti.ii  indebtedness,  the  payment 
of  the  rental  could  not  he  set  upas  an  equi- 
table claim  otj  the  theory  of  diverted  earn- 
ings as  |)reviuusly  announced  by  the  court. 
Nor  was  the  rental  entitled  to  priority  over 
th(!  mortgage  liens  as  being  an  expense 
originating  in  the  course  of  tiie  receiver's 
administration.  Qiiituy,  M.  iS~»  /'.  A'.  Co.  v. 
Humphrey <^,  51  -•////.  ^  I'-n^-  '»'•  Cas.  3S,  145 
V.  S.  82.  12  Sup.  CI.  Ktp.  787 :  affirming  34 
l'',ii.  Ju-p.  259.-  KxPLAlNlNc;  Fosdick  v. 
Schall.  99  U.  S.  235. 

1  in.  Cliii.iiH  for  rent  of  rolling 
Ntocko"'— Claims  against  a  receiver  for  rent 
of  rolling  stt)ck  and  for  extraordinary  de- 
preciation of  the  rolling  stock  while  used 
by  the  receiver  in  operating  his  road  are 
not  such  claims  as  should  be  allowed  pre- 
cedence over  the  mortgage  bonds.      L  'iiion 

Trust  Co,  V.  Illinois  Midland R.  Co.,  25  Am, 
&*  /Cut,'.  A'.  Cas,  560.  117  I',  .v.  434.  b  Sup, 
CI.  lu'p.  809, 

Hut  a  court  of  equity  having  possession 
in  a  foreclosure  suit  of  the  property  of  a 
company  has  jurisdiction  to  authori/.;*  the 
creation  of  debts  for  rolling  stock  and  other 
purposes,  when,  in  its  opinio:;,  it  is  necessary 
to  do  so  to  secure  the  continued  and  siu- 
ccssful  operation  of  the  road,  an<l  to  charge 
the  debts  so  created  as  a  first  lien  on  the 
mortgage<l  property.      \'iU\s  v,  /'<iv«'.  10^)  A'. 

r.  439.  '3  '^-  l'-  i'^'P-  743.  'i  A'.  1',  .V.  A'. 
864.  ;«<'w;. ,  9  Ci'hI.  A'rp.  466;  affirm iu>^  11  A'. 

J'.  .V   A'.  416. 

11(1.    (.'lailllK    for    NlippliOH     UH«'<i    ill 

4i|M'riitiiiH;  rotul.f  -Two  claims  for  coal 
furnished  to  the  railroad  company  for  the 
purjHJSC  of  operating  the  roarl,  one  of  wliirli 
arose  a  little  more,  and  the  other  a  little 
less,  than  x  months  before  the  appoint- 
ment of  tlie  receiver,  are  both  entitled  to 
priority  over  tlie  mortgages.  Mi  Illitiiuy  v. 
liih:,  80  7V.r.  1,13  .V.  W.  AV/.  «)55. 

•  Si'i-  .tisd  ,itii, ,  WH, 
\  Sec  ul«u  iinit',  IMI. 


117.  I'laiiiiN  for  wniroH  of  ciii> 
pIoyt'M.*— A  claim  by  a  general  freight  and 
passenger  agent  against  an  insolvent  cor- 
poration for  the  balance  of  iiis  salary  is  not 
entitled  to  priority  of  payment  over  the 
m<jrtgage  bondholders.  Hound  v.  Soul/t 
Ciirolinit  K.  Co.,  50  hid.  Hep,  312.— Di.sriN- 
(;iisiii.\»;  Fosdick  v,  Schall.  99  U.  S.  235. 

The  (-laim  of  employes  (jf  a  railroad  com- 
pany under  the  second  section  of  the  act 
"  for  tne  relief  of  citizens  on  the  line  of  any 
railroarl  that  has  ux  may  hereafter  fail  to 
operate  "  will,  where  the  property  is  subject 
to  encumbrance  existing  when  the  act  be- 
comes a  law,  be  subject  to  such  encum- 
brance. W  illiamson  v.  X t~u> J ir sey  Soul/urn 
A'.  Co.,  28  X.J.  Ki/,  277.  14  Am.  A'y.  AVp.  34; 
mursid  in  29  X,  J.  Eq.  311.  — Disiin- 
(U'lSMKi)  IN  Toledo,  IJ.  &  H.  K.  Co.  v, 
Hamiltcjn,  43  Am.  &  Eng.  K.  Cas.  476,  134 

U.  S.    2(/). 

1  IH.  C'laiiiiH  of  preferred  Htoek* 
liolderH.— An  agreement  lo  pay  dividends 
on  preferred  stock  out  of  the  net  earnings 
of  the  road  does  not  necessarily  mean  the 
net  earnings  as  they  were  when  the  stock 
was  issued.  The  company  may  subsecpient- 
ly  incur  new  obligations  so  as  to  diminish 
the  net  earnings.  So  a  claim  to  such  divi- 
flends  may  be  siilionlinate  to  creditor,  •."ho 
sub.setpientlx'  loan  money  to  carry  on  the 
road.  St.  John  v.  l:>  i.  A'.  Co.,  22  Wall.  (('. 
S.}  136,  II  .////.  A'y.  A'rp.  44^).  .ApPl.tKD  IV 
Mackintosh  ;■.  Flint  it  I*  .\I.  K.  Co.,  36  Am. 
iS:  Knj;.  K.  Cas.  340.  34  I'ed.  Rep.  582.  I'oi.- 
l.dWi  i>  IN  U'.iiren  ;■•  King,  108  U.  S.  3S9. 

And  where  the  agreement  to  pay  such 
ilividends  provides  tliat  they  shall  be  paid 
out  >  f  the  net  earnin^^s,  if  earnc:!  in  the 
••urr'Mit  year,  but  not  otherwise,  payment  is 
restricted  to  the  current  year,  whether  the 
l)usiness  of  the  roa<l  for  the  year  was  large 
or  small,  and  without  regaril  to  what  it  con- 
sisted of.  Si.  John  v.  F.rie  A'.  Co.,  22  Wall. 
(('.  S.)  136,  II  /////.  A'y.  A',p.  446. 

111).  CliiibiiM  of  Niirety  on  injiiiu** 
tWtii  IioihI.— A  judgment  creditor  of  a 
railroad  levied  execution  on  its  property, 
which  was  mortgaged,  and  the  railroad  en- 
joined the  judgment.  Afterwanls  tin-  sure- 
ty in  the  injunction  bond  paid  ofT  the  judg- 
ment debt,  //lid,  as  the  bonil  was  exe- 
cuted for  the  protection  of  the  railroad 
properly,  the  surety  should  be  paid  out  of 


*See  aitu  auU,  100. 


MORTGAGES,   ltSO-124. 


457 


tlic  fund  arising  from  a  foreclosure  sale  of 
the  n»ad  in  preference  to  the  uiortKaKC 
creditors.  Union  Trust  Co.  v.  Morrison,  33 
.//;/.  il-'  Knt(-  ^>'-  <-'"•  33-  '^j  t'-  -'''•  Sy.  ^ 
^lip.  Lt.  A't/>.  1004. 

120.  ClaiiiiN  iiiidcr  coiiHtriii'tioii 
coiitriM'tN.  Upon  foreclosure  of  a  niort- 
(;aKvu|i'>n  the  roadbed  and  franchise  of  a 
I  »ilri  'I,  no  preference  will  be  y'vcn  to  a 
I  iiiini  for  work  of  original  construction  done 
lor  the  railroad  after  the  inortgafju  was  cxc- 
cuKil.  /iiirs/.w  V.  /'/>/«•  /i/uj",  M.  &*  X.  O. 
A'.  Co.,  57  //»•/•.  334.— yuoTiNt;  Toledo,  D. 
.N;  U.  K.  Co.       11   inilton,  134  U.  S.  2y6. 

A  mort^a^e  upon  a  railroad  "  built  and  to 
))('  built  "  is  entitled  to  precedence  over  the 
( laini  of  a  contractor  who  thereafter  tin- 
ishes  a  T»nr»'on  of  the  road  under  an  agree- 
n\ent  .'u.ti  <:\'  shall  retain  possession  and 
apply  viic  t.Mnin^s  to  the  discharge  of  Ills 
cl.iini,  and  who  has  never  surrendered  pos- 
sesion to  the  company.  J>un/uim  v.  L'incin- 
iiali,  r.  &^  C.  /'.  Co..  I  ir,i//.  (U.  S.)  254.— 
I'oil.oWKK  IN  Central  Trust  Co.  v.  Kncc- 
l.nid.  46  Am.  k  ICng.  K.  Cas.  268.  138  U.  S. 
414;  Scott  7'.  Clinton  &  S.  K.  Co.,  (>  Hiss. 
(C.  S.)  529;  Uell  V.  Chicago.  St.  L.  &  N..O. 
U,  Co.,  34  La.  Ann.  785.  Kkvikwkh  in 
I  lollister  V.  Stewart,  111  N.  Y.  644,  19  N.  E. 
I<.'|..  7«:. 

Where  a  construction  contr.ict  provi«les 
thai  the  contractor  is  entitled  to  possession 
<>l  the  road  until  his  contract  is  completed, 
Imt  he  receivi'S  fn)m  the  company  a  large 
iiiimbc?  of  l)onds  scrurod  by  a  mortgage 
which  i'lilhorizes  the  mortgage  trustee  to 
take  possessior.  upon  default  of  pavment  of 
iiiii-rest  on  the  IhjikIs,  and  the  contractor 
negotiates  the  l)oiids  for  value,  his  right  to 
iiMsscssion  is  subordinate  to  the  right  of  the 
tnistee  to  possession  upon  a  default  in  pay- 
ment of  interest,  .ll/rii  v.  Ihtllas  '.I'*  II'.  A'. 
Co..  3  H'oot/s  (C.  .V.I  3i''i. 

Its  I.  l>aniiii{«>N  fur  niUNiii^  ilfiitli 
ol"  «>iiip|f>,v«>, — .\  <  laini  against  a  company 
for  lU'gligrntly  causing  the  death  of  an  eni- 
\ilo\v  is  Hot  cntitleil  to  prinritv  of  payment 
over  a  precerlcnt  iiDttgage.  /uirnwrs'  /., 
>;"••  y .  Co.  V.  (hirn  A'lM',  /f,  &^  St.  /'.  A'.  Co., 
4'>  .  /"/.  il«»  /•'«<'.  A",  i'tis.  2(/h  45  /•>//.  AV/.  fif)4. 
Di^'AiM'KuviNc;  How  7'.  Nfeinphis  it  I„  U. 
K  ("0.,  17  Am,  i"y(  Kng.  R.  Cas.  324,  20  Fed. 

Kip.   2('iO. 

122.   l><>lM>iittir<'H   uikI   downturn 

J»lu«'k.— ( )rd:i)arilv  a  court  of  ecpiity  ought 
ii'it  to  enter  upon  tin:  work  of  building  or 
completing  a  railroad   during  the  progress 


of  a  foreclosure  suit;  but  where  the  trus- 
tees and  four  fifths  of  the  bondholders  con- 
sent, and  none  oppose,  the  court  may  depart 
from  this  rule  in  order  to  |)rcvent  a  forfeit- 
ure of  the  company's  franchise,  and  also  of 
a  valuable  land  grant,  and  authorize  the  re- 
ceiver to  construct  unlinished  portions  of 
the  road  out  of  moneys  furnished  by  the 
bondholders,  and  secured  by  debentures  to 
be  issued  by  the  receiver.  h\nntdy  v.  St. 
I'atdS^  /'.  A'.  Co.,  5  Dill,  k  U.  S.)  519. 

Under  section  30  of  the  Companies 
Clauses  Act,  1863,  mortgages  and  bonds 
granted  before  the  "creation  "  of  debenture 
stock  have  priority  over  such  stock.  ///  re 
Hurry  Port  &•  G.  V.  A'.  Co.,  54  /..  J.  Cli. 
D.  710,  52  L.  T.  842.  33  /f '.  A'.  741. 

12il.  Ex4>viitioii  liviiM.— A  creditor  of 
a  railroad  who  attaches  and  afterwards  lev- 
ies execution  upon  mortgaged  property  of 
the  company,  before  the  mortgage  has  been 
recorded,  but  with  full  knowledge  of  the 
facts,  obtains  no  priority  over  the  mortgage. 
Rltixd  v.  AVw  York,  //.  Sr*  W  R.  Co.,  45  Conn. 

>99.  17  ^>n-  Ky-  l^'P-  367. 

Where  un  action  against  a  railway  com- 
pany is  brought  upon  a  bond,  and  such  ac- 
tion is  c>'in|>romised  before  judgment  on 
the  terms  that  the  company  shall  transfer 
the  whole  of  its  rolling  stock  as  security, 
the  conveyance  of  such  rolling  stock  is 
valid  as  against  an  exec  ution  creditor  who 
subsequently  seizes  it.  Blackmore  v.  Yates, 
/,.  A'.  2  E.\.  2! 5,  36  L.  J.  Ex.  !2i,  15  W.K. 
750. 

124.  •liidKiiiOHt  lieiiM.  —  Judgment 
liens  on  a  railroad  are  cut  otT  by  the  fore- 
closure of  a  prior  mortgage,  tironson  v.  /.<» 
Crosse  &-  M   A'.  Co..  2  ll'it//.  (C.  S.)  2S3. 

A  nu)rtgagL  of  the  personal  property  of  a 
railroad  company  is  good  without  delivery 
of  possession  to  the  mortgagee  against  an 
ordinary  judgment  creditor  as  respects  all 
propc  ty  necessary  to  carry  on  the  business 
of  the  road.  Coi'ey  v,  Pittshurjii;,  it.  W.  (S- 
C,  A'.  Co.,  3  Vhila.KPa.)  173. 

A  judgment  was  obtained  against  a  com- 
p:inv  on  a  claim  which  was  not  entitled  to 
',)rioriiy,  and  an  appeal  was  taken,  the  com- 
pany's attorney  going  on  the  a|)pcal  bond, 
I'l-nding  the  appeal  a  receiver  for  the  road 
was  appointed,  and  judgment  was  subse- 
quently taken  on  the  bond  in  the  appellate 
court,  which  was  discharged  by  the  altcjr- 
ney.     Held,  that  the  claim  of  the  attorney 


'h\ 


§ 


i 


•See  uho  ante,  104. 


I  -'■»  Jumi^-fWW^v^ 


;?-|flf*lWP»^»i^f-)B'>itrT?'*a^^ 


458 


MORTGAGES,  125-127. 


against  the  company  was  not  entitle!  to 
priority  <jver  tlie  mortgage  bondlnjUlers. 
lilai'r  V.  .SV.  Louis,  Ji.  &*  A'.  A",  t'l*.,  23  /•></. 
AV/.  523. 

Tiic  complainant  liouglit  at  a  public  sale, 
and  under  a  power  of  sale  in  a  mortgage 
given  by  a  horse  railroad  company,  all  its 
real  estate,  personal  property,  franchises, 
rights,  and  privileges ;  he  sold  everything  so 
bought  to  one  Boylan  December  23,  1S74, 
taking,  as  part  of  the  purchase  money,  a 
mortgage  thereon  from  Boylan  and  his 
wife.  This  mortgage  was  tiled  as  a  "battel 
mortgage  on  February  5,  1875,  but  was 
never  refiled.  In  April,  1876,  an  act  of  thv 
legislature  was  passed  providing  thnt  a 
mortgage  of  chattels,  etc.,  of  any  railroad 
or  canal  company  should  be  valid  without 
being  tiled  as  a  chattel  mortgage,  field, 
that  such  mortgage  was  a  lien  on  the  chat- 
tels described  therein,  prior  to  judgments 
recovered  after  it  was  given,  either  against 
the  mortgagor  or  a  new  horse  railroad 
company  created  after  the  mortgage  was 
given,  and  claiming  the  disputed  chattels 
ri  a  devolution  of  title  under  Boylan,  the 
II.  Jitgagor.    Kelly  v.  lioylan,  32  A'./.  Eq.  581. 

^25.  L0UII8  of  iiioiiuy.  —  Where  an 
or"  r  of  court  directs  receivers  to  "  con- 
tinue in  possession  and  management  of  the 
prof/Crty,"  and  they  in  good  faith  borrow 
sr<iney  to  enable  them  properly  and  suc- 
(jssfully  to  manage  the  property,  a  claim 
for  moneys  thus  loaned  is  entitled  to  pay- 
ment from  the  net  earnings  in  the  receivers' 
hands  in  preference  to  second  mortgage 
bondholders.  Kx  f^arte  Carolina  Xational 
Jiank,  18  So,  Car.  289.— Rkviewing  In  re 
Fifty-four  First  Mortgage  Bonds,  15  So. 
Car.  304. 

A  company  interested  in  maintaining  as 
a  "going  concern  "  a  mortgaged  connecting 
line  loaned  it  money,  which  was  expended 
in  the  payment  of  operating  expenses,  and 
interest  on  its  first  mortgage  bonds.  lielJ, 
that  the  company  loaning  this  money  was 
not  entitled  to  preference  over  the  first 
mortgage  bonds  by  way  of  subrogation,  or 
on  the  ground  of  superior  equities;  al- 
though the  advances  made  might  have  en- 
abled the  mortgaged  company  to  maintain 
itself  as  a  going  concern,  that  fact  alone  did 
not  give  such  advances  priority  over  first 
mortgage  bonds  upon  the  theory  that  the 
interests  of  the  public  and  the  bondholders 
were  subserved  by  such  advances.  Mor- 
gan's I..  St*  T.  A',  i}^  S.  Co.  V.  Texas  C,  A'.  Co., 


45  Am.  &-  iCfij;.  A'.  C<w.  631,  137  U.  S.  171, 
II  Sh/>.  Ct.  i\i'/>.  61.— yuoTEU  IN  Quincy, 
M.  &  I'.  K.  Co.  V.  Humphreys,  28  Abb.  N. 
Cas.  (N.  Y.)  332. 

120.  Mt'clmiiic!*'  ll«'ii8.*~The  lien  of 
a  mortgage  oi  a  railroad  duly  recorded 
takes  priority  over  a  mechanic's  lien  for 
the  construction  of  a  dock  «)n  the  property 
of  the  railroad  company  three  years  after 
registration  of  the  mortgage.  Tolctlo.  J>. 
&*  />'.  A'.  Co.  V.  HaniilloH,  43  Am.  Sr*  JCiig.  K. 
Cas.  476,  134  U.  S.  296,  10  Suf).  Ct.  lup. 
546,— F01.I.OWKI)  IN  Central  Trust  Co.  v. 
Knecland,  46  Am.  &  Eng.  R.  Cas.  268,  138 
U.  S.  414;  Brady  v.  Johnson,  75  Md.  445. 
yuoiKl)  IN  Barstow  v.  Pine  BluiT,  M.  &  N. 
O.  R.  Co.,  57  Ark,  iiA.—/tssi.'A  v.  S/one,  13 
Wis.  46b. 

The  consiruC'ion  of  the  dock  and  the 
consequent  im|irovcmi:nt  of  the  mortgaged 
property  did  not  give  t«>  the  contractor  an 
equitable  lien  prior  in  right  to  the  lien  of  the 
mortgage,  or  furfiish  equitable  reasons  why 
the  legal  priority  of  the  mortgage  should  be 
displaced,  the  claim  of  the  contractc  r  being 
simply  an  ordinary  debt  for  const  uction. 
Toleilo.  D.  Sf  K.  A".  Co.  v.  Hamilton,  43 
Am.  &■»  Eng.  R.  Cas.  476,  134  U.  ii.  296.  10 
Sup.  Ct.  Rep.  546.— Distinguishing  St. 
Louis,  A.  &  T.  H.  R.  Co.  v.  Cleveland,  C, 
C.  &  I.  R.  Co..  125  U.  S.  6jd;  Porter  v. 
Pittsburg  Bessemer  Steel  Co.,  1 20  U.  S.  649. 

If  the  mortgagor  had  full  equitable  title 
to  the  property  upon  which  the  dock  was 
constructed,  a  mortgage  with  words  of  gen- 
eral description  conveyed  the  same,  and  the 
fact  that  the  mortgagor  had  ?)ot  the  full 
title  does  not  entitle  a  contractor  to  priority 
over  the  mortgage  under  his  mechanic's 
lien.  Toledo.  I).  <5-  li.  R.  Co.  v.  Hamilton. 
43  Am.  &*  Eng.  R.  Cas.  476,  134  U.  S.  2!^\ 
10  .'^up.  Ct.  Rep.  546.  —  DisriNGUisiiiNG 
Williamson  7'.  New  Jersey  Southern  R.  Co., 
28  N.  J.  Eq.  277,  29  N.  J.  Eq.  31 1  ;  Botsfotd 
V.  New  Haven,  M.  &  W.  R.  Co.,  41  Conn. 
454.  — F(>M.o',VF.i)  IN  Augusta,  T.  &  G.  K. 
Co.  V.  Kittel,  52  Fed.  Rep.  63.  2  U.  S.  App. 
409.  2  C.  C.  A.  615. 

127.  KiKlit  of  way  ncMiiiirpd  Hiihsr- 
qiiciitly  to  iiiortfrntfc— A  construction 
company  entered  into  a  contract  to  build 
and  furnish  a  railroad,  to  be  paid  for  in  the 
stock  and  mortgage  bonds  of  the  railroad 
company,  to  be  issued  from  time  to  time, 
as  sections  of  the  road  should  be  completed. 


*See  also  anle,   lOO. 


MORTGAGES,  128-130. 


460 


But  one  section  of  the  road  was  (oinpli'tud, 
ami  tiie  construction  company  received 
payment  according  to  the  contract,  and  in 
turn  negotiated  the  mortgage  bonds  re- 
ceived for  a  good  consideration;  but  it  did 
work  at  various  points  on  tiie  rest  of  the 
road,  and  acquired  nearly  all  of  tlie  neces- 
sary right  of  way ;  and  sul)sequentiy  another 
railroad  company  secured  title  to  tiiese 
properties  tiirough  the  construction  com- 
pany and  completed  the  road.  Held,  tiiat 
the  holders  of  the  bonds  issued  to  tlie  con- 
struction company  had  a  prior  lien  on  ihe 
wiiole  of  the  road  for  the  full  lace  of  the 
honds.  IViide  v.  Chicago,  S.  <S>»  St.  L.  K. 
Co.,  149  U.  S.  327,  13  Sup.  Ct.  l\tp.  892. 

128.  UiiMet;iir<Ml  floating  ilubtN  for 
c'oiiNtriictioii.  —  In  the  absence  of  some 
statutory  provision,  unsecured  floating  debts 
of  a  railroad  corporation  incurred  in  the 
construction  of  its  road  do  not  constitute 
a  lien  superior  to  a  valid  mortgage  duly 
executed,  made  to  secure  bonds  of  thecom- 
jiany,  and  held  by  bona  fide  purchasers. 
Porter  v.  I'itlsburi;  /ies.teiner  Stee/  Co.,  30 
-/;«.  &*  Jifij^'.  A'.  Cat.  472.  120  U.  .V.  649.  7 
.S//.-'.  Ct.  h\p.  741.  — Dl.STIN(;UI.SHK|)  IN  To- 
ll-do, D.  k  B.  R.  Co.  7/.  Hamilton,  43  Am. 
A  Ei.g.  R.  Cas.  476,  134  U.  S.  296. 

After  a  decree  of  foreclosure  of  a  railroad 
mortgage  was  entered  the  creditors,  with 
the  consent  of  all  parties  in  interest,  entered 
into  an  agreement  for  a  perpetual  lease  of 
the  property  to  another  comj)any,  the  lessee 
stipulating  to  pay  the  receiver  30  per  cent, 
of  the  gross  earnings  of  the  r<  iid,  to  be  ap- 
plied by  the  receiver  to  the  payment  of  in- 
terest on  bonds  issued  by  the  lessee  in  lien 
of  I  lie  ones  formerly  issued  by  the  lessor, 
and  secured  by  the  mortgage ;  but  no  pro- 
vision was  made  for  the  payment  of  the 
floating  debts  of  the  company.  Certain 
unsecured  notes  had  been  given  for  debts 
growing  out  of  the  coeistructi<in  of  the  road, 
atifl  the  holders  of  these  notes  intervened 
and  askffl  to  have  their  claims  established 
as  equitable  liens  upon  the  road  and  its 
funds,  and  declared  paramount  to  the  mort- 
g.ii;c  liens.  Held,  that  they  were  entitled 
tr,  the  relief  sought.  /'arniers  L.  t?~  T. 
Co.  V.  Missourt.  I.  &^  X.  A'.  Co.,  17  ^/w/.  &* 
Fiix-  A'.  Cat.  314.  21  Fitf  A'e/>.  264. 

Wlu-re  a  suit  is  brought  to  foreclose  a 
first  railroad  mortgage,  the  court  has  no 
power,  without  the  consent  of  the  first 
mortgage  bondholders,  tf)  direct  the  appli- 
cation of  the  income  of  the  road  to  the  dis- 


charge of  a  floating  debt  created  for  the 
purpose  of  paying  interest  on  the  bonds  and 
for  supplies  and  repairs,  though  it  appear 
that  it  was  probably  for  the  interest  of  the 
bondholders  that  such  payment  be  made, 
and  that  the  floating  debt  was  equitable  and 
could  be  paid  on  favorai>le  terms.  Dinuiin 
V.  Mobile  (i~  O.  A'.  Co.,  2  U'oot/.i  ((/.  S.)  542. 

Where  net  earnings  have  been  applierl  to 
the  payment  of  interest  on  the  bonded  flebt 
of  the  company,  and  to  improvements  on  the 
jtroperty  subject  to  the  mortgages,  where- 
by its  value  is  enhanced  to  the  amount 
expended  on  it,  the  debts  incurred  for  con- 
struction before  the  appointment  of  the  re- 
ceiver are  entitled  to  be  paid  from  the 
corpus  of  the  property  in  preference  to  the 
mortgage  debts,  though  the  mortgage  cred- 
itors were  not  parties  to  the  suit  at  the 
time  (.f  the  application  of  the  net  earnings 
to  the  purpfises  mentioned.  Mcll/ieimv  v. 
Jiiiia.^  Tex.  1,  13  .V.  W.  Rep.  655.— FoL- 
l.owiNc.  AND  guoTiNO  Burnham  v.  Bowen, 
lit  U.  S.  777. 

The  mere  lapse  of  more  than  six  months 
between  the  time  within  which  claims  for 
operating  and  construction  expenses  ac- 
crued and  the  appointment  of  a  receiver 
does  not  deprive  them  of  priority  over  the 
mortgages  where  they  arose  within  twelve 
months  before,  and  were,  by  Sayles'  Civ.  St. 
Tex.  art.  3179a,  given  a  lien  for  that  lime, 
though  the  couit  fixed  six  months  before 
the  appointment  of  the  receiver  as  the  limit 
ff)r  such  claims,  which  it  ordered  paid,  and 
tliough  the  statutory  lien  was  inferior  to 
that  of  the  mortgages.  Mcllhenny  v.  liinz, 
80  Te.x.  I,  1 3. v.   If  />•//.  655. 

129.  Vi'iMlor'M  IUmi.*— Where  a  stock- 
holder of  %  company,  who  has  acted  as 
agent  of  the  company  in  acquiring  title  to 
lands,  conveys  lands  to  the  company  after 
it  has  executed  and  recorded  a  mortgage  of 
all  of  its  lands  which  it  then  owned  or 
might  thereafter  acquire  ;o  secure  its  bond- 
holders, he  must  be  deem  -d  to  have  waived 
a  vendor's  lien  on  the  land  conveyed.  Fisk 
V.  Potter,  2  Abb.  App.  Dec.  (A'.  Y.)  138,  3 
Keyes  64. 

V.  THE    TKU8TEXS. 

I.  Appointment  and  Remimal ;  Filling  Fid* 
cane  its. 

1:10.  CoiiNtriiftioii  of  utatute— 
KU'Ctioii.— Me.  Rev.  St.  1857,  ch.  51.  S  51 

*Sec  alto  ante,  t>il. 


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MORTGAGES,  131,  132. 


and  tiitr  Mine  loilowing  sections,  and  St.  1858, 
cli.  30,  relative  "  l(j  trustees  of  railroads,"  and 
regulating  the  proceedings  to  be  liad  when 
the  railroad  has  been  conveyed  to  trustees  for 
the  use  of  the  bondholders,  apply  to  cases 
wliere  the  trust,  the  trustee,  and  the  cestui 
que  trust  arc  all  created  by  one  and  the 
same  deed,  and  not  to  a  case  wiiere  a  mort- 
gage is  made  to  an  individual  to  secure 
him  and  his  assigns  who  may  subsequently 
become  holders  of  bonds  tu  be  issued  by 
him.     In  re  York  ^  C.  A'.  Co.,  50  A/e.  552. 

Should  suci)  a  mortgagee  transfer  any 
part  of  the  bonds,  he  would  hold  the  mort- 
gaged estalc  as  mortgagee  for  the  bonds 
not  Iran  -ferred,  and  as  trustee  for  the  hold- 
ers of  the  portion  transferred,  precisely  as 
any  mortgagee  would  do  under  similar  cir- 
cumstances. Hut  neither  before  nor  after 
such  transfer  would  he  be  such  a  trustee  as 
the  statutes  referred  to  contemplate.  /« 
re  i'ori  iS-  C.  A'.  Co.,  50  A/e.  552. 

The  statutes  referred  to  contemplate  a 
deed  of  t  ust,  and  such  a  mortgage  as  has 
been  described  is  not  within  the  letter  or 
S|)irit  of  tlicir  provisions.  /«  re  i'ork  iS-  C. 
A'.  C<'.,  50  .)/,■.  552. 

In  such  a  case  the  election  of  trustee  in 
place  of  the  original  mortgagee,  made  at  a 
meeting  of  the  bondholders  called  for  the 
purpose  of  foreclosing  the  mortgage,  is 
unauthorized  by  the  statutes.  ///  re  i'orl- 
<5-  C.  A'.  Co.  50  Afi:  552.   . 

131.  Appoiiitiiiviit— I*ow«rN  ol'  the 
court.— An  express  trust  validly  created 
shall  not  fail  for  the  want  of  a  trustee ;  and 
the  power  of  the  court  over  the  removal 
and  appointment  of  trustees  independently 
of  any  statute  authority,  or  any  directions 
in  the  instruments  of  trusts  is  well  estab- 
lished. Atisoii  V.  Somerset  A'.  Co.,  85  A/e. 
7y.  26  .  ///.  A'efi  996. 

The  special  provisions  respecting  the 
election  of  trustees,  being  cumulative  and 
n  »i  restrictive,  must  be  regarded  merely  as 
auxiliary  regulations  designed  to  aid  the 
court  in  the  discharge  of  its  duty,  and  to  fa- 
cilitate the  action  of  bondholders  who  may 
desire  to  co-operate  in  securing  a  more  elFi- 
cieiit  execution  of  the  trust.  These  provi- 
sions are  not  riesis,'ned  to  prohibit  bond- 
holders froi;!  direct'y  invoking  the  aid  of 
the  equity  court  m  behalf  of  themselves  and 
others  enti.led  '.o  the  protection  of  the 
sanu'  spcurity,  .Insoii  v  Somerset  A\  Co., 
85  .!/<■.  79,  2(^  All.  h\/>.  9</j. 

The  power  of  the  court  to  make  such  ap- 


pointment is  not  defeated  by  the  tormatlon 
of  a  new  corporation,  under  Me.  Kev.  St.  ch. 
51,  by  a  majority  of  the  bondholders  who 
have  exchanged  their  bonds  for  stock  in  the 
new  corporation  ;  nor  by  a  foreclosure  pro- 
moted by  the  bondholders,  the  trustees  not 
being  parties  tiiereto,  and  a  sale  of  the 
equity  of  redemption  on  execution  to  the 
new  corporation;  nor  by  the  creation  of  a 
new  debt,  secured  by  mortgage,  for  the  ex- 
tension of  the  road  ;  nor  by  estoppel  through 
laches,  and  because  a  majority  of  the  bonds 
was  represented  at  the  organization  of  the 
new  corporation,  Anson  v.  Somerset  A'. 
Co.,  85  A/e.  79,  26  ////.  /\'efi.  996. 

In  this  proceeding  the  court  will  not  con- 
sider the  validity  of  the  alleged  foreclosure, 
nor  the  question  of  estoppel,  nor  determine 
the  relative  equities  between  the  outj.and- 
ing  bonds  and  those  surrendered  for  stock, 
nor  the  status  of  the  new  corporation  and 
its  new  issue  of  bonds.  Anson  v.  Sonnrstt 
A'.  Co.,  85  A/e.  79,  26  At/.  At-p.  996. 

The  original  'mortgagor  and  the  surviving 
trustee  are  nccessaiy  parties.  Anson  v. 
Somerset  A'.  Co.,  85  Ale.  79,  26  Att.  AV/.  996. 

The  appointment  of  tru.stees  under  Mass. 
St,  of  1876,  ch.  236,  to  receive  a  mortgage 
to  be  made  t<j  them  by  the  Eastern  R.  Co. 
as  security  for  its  certificates  of  indebt- 
edness, and  to  perform  the  t>ther  duties  re- 
quired by  lint  statute,  may  be  made  in  the 
exercise  of  tlie  equity  jurisdiction  of  this 
court ;  and  the  trustees  so  appointed  may  be 
ordered  at  any  tinie  hereafter  to  report  or 
account  vt  the  court,  without  any  express 
provision  to  that  effect  in  the  statute  or  in 
ll.c  order  of  appointment,     lure  Eastern  A". 

Co.,   \^0  .1/(1  Vi.  412. 

132.  it<'iiiovtil  and  now  nppoint- 
inent.'*' — .After  a  railroad  company  had 
issued  bonds  and  mortgaged  its  road  to  se- 
cure them  it  united  with  another  road  under 
the  iiiime  f)f  the  latter,  and  new  trustees 
were  appointed  for  the  c<insolidated  njad. 
Subsequently  certain  boiulholders  of  the 
original  road  filed  .1  bill  a^iiinst  the  trustees 
in  the  mortgage  of  their  individual  road  and 
the  trustees  of  the  consolidated  road,  seek- 
ing, among  other  tilings,  to  depose  the 
second  trustees,  and  the  appointment  of 
others  in  their  stead.  //<•/</,  tliat  tliev  were 
proper  parties  to  maint;iin  a  .   II  seeking  the 

•Appointment  nf  new  trustees  under  murt- 
Kai;f.  Autlinrlty  <>f  court  puramouni  i"  action 
of  iitiiiUholdcrs,  scp  57  AM.  &  Em;.  R.  Cas.  lb;, 
ahitr. 


MORTGAGES,  1:{.'J-1:J«. 


461 


removal  of  the  trustees  <>(  their  irullviduul 
road  for  misconduct,  and  to  have  oiliers  ap- 
pointed in  their  place,  but  not  to  cuiitt-st 
the  appointment  of  the  trustees  of  the  con- 
solidated road  ;  tliat  should  be  done  by  the 
trustees  of  the  ori(;inai  road.  Stevens  \.  Kl- 
drUtrt,  4  aiff.  ( U.  S.)  348. 

V\V\,  Noii-reMi4lciiu4;  of  trii8tt>c  vh- 
catCH  liiH  ollico.— The  duties  devolving 
upon  the  trustee  under  a  railroad  mortgage 
are  of  a  personal  nature,  often  requiring  his 
presence,  and  cannot  be  delegated  ;  so  where 
a  trustee  removes  to  a  foreign  country  S(j  as 
to  incapacitate  himself  from  the  discharge 
of  such  duties,  he  thereby  vacates  his  otfice. 
Farmers'  L.  &»  T.  Co.  v.  Hitghes,  1 1  Hun 
(A',   v.)  130. 

And  upon  a  proper  case  made  a  trustee 
thus  removing  to  a  foreign  country  will  be 
enjoined  from  acting  as  trustee  in  this  coun< 
try.  Fanners'  L.  &*  T.  Co.  v.  Hit^/ies,  1 1 
hun(N.  y.)  130. 

i:i4r  FilliiiK  vacaiiviuM.  —  Where  a 
railroad  mortgage  provides  for  filling  vacan- 
cies in  the  office  of  the  trustee  by  nomina- 
tion by  one  of  the  beneficiaries,  and  approval 
by  the  court,  notice  to  the  ciiniiany  of  the 
application  for  approval  is  uni  required. 
The  mode  of  appointment  in  such  case  is 
governed  by  the  mortgage,  and  not  by  the 
general  law.  Macon  &*  A.  A'.  Co.  v.  GeoPj^ta 
K.  Co.,  I  Am.  <S-  Fni[.  A'.  Cas.  378,63  (Ja.  103. 

3.   Their  Pmuers,  l)i  .ies,  and  lJa'>ililies. 

\W^,  III  ifciieral. — Tilt  courts  will  con- 
strue strictly  any  limitation  upon  the  power 
of  a  trustee  contained  in  a  railroad  mortgage 
to  lake  proceedings  to  enforce  rhe  payment 
of  the  amount  secured.  Guara'ily  Trust  &* 
S.  J).  Co.  V.  (7reen  t'lTv  S.  &^  M.  A'.  Co.,  45 
Am.  &*  F.n^.  A\  Cas.  689,  139  U.  S.  137.  11 
Sh/>.  Ct.  A'e/>.  512.— FoLl.owiNO  Alexander 
V.  Central  R.  Co.  3  Dill.  (U.  S.)  487;  Credit 
Co.  V.  Arkansas  C.  R.  Co.,  1$  Fed.  Rep.  46. 

Where  the  statutes  of  a  state  prescribe 
the  duties  of  mortgage  trustees,  a  mortgage 
is  sufficient  which  merely  names  the  trustees, 
in  which  case  their  duties  will  be  those  pre- 
scribed by  the  statute.  Mercantile  Trust 
Co.  V.  Portland  *•  O.  R.  Co..  lo  Fed.  A'ep. 
604. 

In  the  absence  of  fraud  the  beneficiaries 
in  railway  mortgages  are  bound  by  what  is 
done  by  their  trustee.  Credit  Co.  v.  Arkan- 
sas C.  K.  Co.,  5  McCf.iry  (U.  .V.)  =3,  15  Fed. 
A'ifi.  46.— QuoTiNC.  Shaw  v.  Little  Rock  & 
Ft.  S.  R.  Co.,  100  U.  S.  605. 


Wlhicii  company  mortgages  its  property, 
iiu  hiding  lauds  which  are  not  necessary  for 
the  consinictiun  or  operation  of  the  road, 
upon  default  the  trustee  must  pursue  the 
remedy  provided'  by  statute  for  a  foreclosure, 
and  cannot  sell  the  lands  without  judicial 
proceedings ;  but  under  the  terms  of  the 
mortgage  he  may  proceed  to  a  forei  losurc 
upon  a  failure  to  pay  interest,  though  the 
principal  is  not  yet  due.  Taber  v.  Cincin- 
nati,  /,.  ^  C.  K.  Co.,  15  ///</.  459, 

Where  railroad  mortgage  bonds  provide 
that  the  company  shall  deposit  a  fixed 
amount  annually  with  the  trustee  as  a  sink- 
ing fund,  and  that  the  sinking  fund  shall  be 
invested  in  certain  other  spcciTied  bonds  of 
the  company,  the  court  will  not,  in  the  ab- 
sence of  the  bondholders,  direct  the  trustee 
to  invest  the  sinking  fund  in  other  bonds  of 
the  company,  bearing  a  Icjwer  rate  of  inter- 
est, merely  because  the  bonds  required  by  the 
terms  of  the  trust  can  only  be  purchased  at 
a  premium.  Fidelity  /.,  T.  &*  S.  IJ.  Co. 
v.  I'nited  X.  J.  A'.  «S-  C  Co.,  \2  Am.  6-  En^i;. 
A'.  Cas.  404,  36  A',  y.  Fq.  405. 

\'M\.  ItiKlit  to  tak«  |H»8H(>HMioii  in 
caNeN  «>f  «lvf'aiilt  by  iiiortt;ai;ur.'*'— Un- 
til a  railroad  mortgagee  asserts  his  rights 
under  the  mortgage  to  the  possession  of 
the  road  by  filing  a  bill  of  foreclosure, 
or,  if  the  road  be  in  the  hands  of  a  third 
party  as  lessee,  by  demanding  possession  of 
such  party,  he  has  no  right  to  its  earnings 
and  profits.  United  States  Trust  Co.\.  //'<»- 
fias//  Western  A'.  Co.,  150  U.  S.  287,  14  Su/>. 
Ct.  A'et).  86.— Follow KD  in  Seney  v.  Wa- 
bash Western  R.  Co.,  150  U.  S.  310. 

Where  a  mortgage  trustee  takes  posses- 
sion of  the  property  upon  a  default  in  the 
payment  of  interest  before  any  principal 
falls  due,  he  may  be  required  to  surrender 
possession  upon  payment  of  the  interest 
due,  where  the  mortgage  does  not  provide 
a  different  course.  Union  Trust  Co.  v. 
Missouri,  A'.  6-  T.  A'.  Co.,  26  Aed.  Fep.  485. 

A  railroad  mortgage  provided  that  the 
company  should  remain  in  possession  until 
a  default,  and  that  it  should  be  void  if  the 
bonds  which  it  secured  were  paid  ;  but  upon 
default  of  payment  of  principal  or  interest 
of  the  bonds,  the  trustees,  at  the  request  of 
one  half  of  the  bondholders,  should  sell  the 
property,  and   apply   the   proceeds   to   the 

*  RtKht  of  trustee  lit  rallroHd  mortgage  to 
take  p()!ise!<sion  on  (default  without  fori-closure. 
RiKhts  under  junior  ami  senior  mortgat^cs,  see 
nolo,  57  Am.  &  I:.n<;.  R.  Cas.  142. 


■  'Si 


m 


MORTGAGES,  137-130. 


;l    * 


payment  of  such  principal  and  interest. 
Held,  that  upon  a  default  in  the  payment 
<}f  interest  the  trustees  had  the  power  to 
take  possession  and  foreclose  without  be- 
ini;  retpiested  to  do  so  by  one  half  of  the 
hoiidliolders.  l-'irst  Xat.  Fire  Ins.  Co.  v. 
Siilislnity,  4  /liii,  >j^  Fiij^,  A'.  Las,  480,  130 
Mass.  303. 

liy  the  provisions  of  a  mortgage  tlie  trus- 
tees were  required  to  exercise  their  power  of 
entry  or  power  of  sale,  or  both,  if  the  default 
was  in  the  payment  of  interest  or  principal  of 
I  'ic  bonds,  upon  the  requisition  of  the  holders 
</t  one  fourth  of  tiie  a(;)rre(;ate  amount  of 
the  bonds;  but  if  the  default  was  in  any- 
thing required  to  be  done  for  the  further 
assuring  of  the  title  of  the  trustees  to  any 
projierty  or  franchises  belonging  to  the  com- 
p.iny,  "  the  rc({uisitlon  shall  be  as  aforesaid, 
but  it  shall  be  within  the  discretion  of  the 
trustees  to  enforce  or  waive  the  rights  of 
the  bondholders  by  reason  of  such  default, 
subject  to  the  power  hereby  declared  of  a 
majority  in  interest  of  the  holders  of  said 
bonds,  by  recpiisition  in  writing,  or  by  a 
\<  ti?  at  a  meeting  duly  held  to  instruct  said 
•  I  .i«iefs  to  waive  such  ilefaidt,  or  to  enforce 
iluir  rights  by  reason  thereof."  //«•/</,  that 
IDs  provision  did  not  give  the  trustees  a 
disiiction  to  waive  a  default  in  the  payment 
of  interest  or  principal  of  the  bonds,  sub- 
ject only  to  be  controlled  by  the  requisition 
or  vote  of  a  majority  in  tlie  interest  of  the 
bondholders.  Hollhter  v.  Stetiuirt,  38  ////;. 
«5-  Knir.  A\  Ciis.  599,  ill  A'.  V.  644,  19  A^. 
/,".  h'ep.  782;  rer'ersi'ni,'^  37  //////  645,  »nm. 

137.  What  iMtiMiilllrleiit  tiikiiiKot' 
poKHt'HNioii.— Where  a  deed  of  possession 
of  a  railroad  was  given  to  the  trustees  of 
certain  creditors  who  held  a  prior  deed  of 
trust  to  secure  the  debt,  and  the  trustees, 
without  taking  possession  personally,  em- 
ployed the  former  superintendent  and  other 
employes  and  servants  of  the  road  to  carry 
on  the  business  as  their  agent  and  servants, 
and  to  put  up  notices  all  along  the  line  of 
tiic  road  to  apprise  all  parties  of  the  change 
of  ownership— //cA/,  that  the  change  of  pos- 
session was  sutFicient  as  to  subsequent  judg- 
ment creditors  of  the  company.  Palmer  v. 
Forbes,  23  ///.  301. 

If  a  mortgage  or  deed  of  trust  gives  the 
trustees  power  to  use  and  run  a  railroad  as 
the  agents  and  attorneys  of  the  company, 
that  fact  will  not  affect  or  give  character  to 
the  title  or  possession  of  the  property.  Hut 
only  as  to  the  mode  and  manner  of  using  it; 


and  a  pro|)er  transfer  under  the  power  will 
cut  of!  all  liens  not  acquired  prior  to  that 
transfer.     Palmer  v.  Forbes,  23  ///.  301. 

I3M.  SllitN  to  <*OIII|M>l  triiNtut^N  to 
tiikc  poNNCHNioii.— The  courts  have  power 
on  bill  in  equity  to  decree  a  specihc  per- 
formance of  a  stipulation  ui  a  railway  mort- 
gage authorizing  the  trustees  to  lake  pos- 
session of  the  mortgaged  property  for  non- 
payment of  the  l)onds.  Sliepley  v.  Atlantic 
(S-  ^V.  /..  A".  Co.,  55  Me.  395. 

It  is  no  defen.te  in  such  a  case  that  liti- 
gation may  be  necessary  to  ascertain  what 
property  is  cf)vered  by  the  mortgage,  or 
that  a  great  burden  and  personal  liability 
(or  injuries  done  and  debts  subsequently  in- 
curreil  will  thereby  be  imposerl  upon  them. 
First  Xat.  Fire  /us.  Co.  v.  Salisbury,  4  ,-/;//. 
if*  F.n^.  l\.  Cas.  480.  1 30  Mass.  303. 

If  a  railroad  cor|)oration  executes  a  mort- 
gage to  trustees  to  secure  the  payment  of 
certain  bonds,  and  afterwards  executes  a 
second  mortgage  to  the  same  trustees  to 
secure  other  bonds,  the  bondholders  under 
the  second  mortgage  are  not  necessary  par- 
ties to  a  bill  in  equity  by  the  bondholders 
under  the  first  mortgage  to  compel  the 
trustees  to  take  possession  of  the  mort- 
gaged property.  First  A'at.  Fire  Ins.  Co.  v. 
Salisbury,  4  Am.  &*  Fnjr.  A'.  Cas.  480,  130 
Mass.  303. 

13f>.  Aiitliority,  poworH,  iiimI  dii- 
tl«'M  ol'trilMt«'«'H,  iiH  Niich.— Trustees  in  a 
deed  of  trust  from  a  railroad  containing 
covenants  of  warranty  may  pay  a  prior 
judgment  lien  in  order  to  protect  the  prop- 
erty, and  after  payment  nuty  be  subrogated 
to  the  rights  of  the  judgment  creditor. 
Memphis  «1~  L.  A'.  A'.  Co,  v.  />oiv,  1 20  I/,  S. 
287,  7  Suf).  Ct.  Rep.  482. 

A  mortgage  trustee  vested  with  the 
power  of  sale  has  a  right  to  decide  in  the 
first  instance  upon  the  right  of  bondholders 
to  have  the  pro|>crty  sold  ;  but,  on  the  other 
hand,  those  representing  the  railroad  have 
the  right  to  ap|>cal  to  the  courts  for  an  ad- 
judication of  such  right.  North  Carolina 
A'.  Co.  V.  iin-ii',  3  Woods  W.  S\)  674. 

Where  mortgage  trustees  arc  empowered, 
upon  the  hap|>ening  of  certain  contingen- 
cies, to  fleclare  the  whole  of  the  bonds  se- 
cured by  the  mortgage  due  and  payable, 
they  are  bound  to  exercise  such  |>ower  in 
the  utmost  good  faith.  Tlie  power  vests  in 
them  a  discretion,  but  it  is  not  an  arbitrary 
one.  It  does  not  include  the  unrestrained 
power  to  do  what  the  trustees  please  ;  but 


i^ 


MORTGAGliS,   140,  14  1. 


468 


tlicy  sliould  do  only  what  their  liuiicst,  (lis- 
JiitL-rcslcd  jud({ment  approves,  or  ou^^lit  to 
ii!>|)rovc.  They  must  not  act  under  the 
impulse  of  fraud,  collusion,  or  self-interest. 
li.iiinti  V.  South  L'arolhia  A.  Co.,  50  /ui/.  A'l-p. 
85;,. 

Where  a  company  mort^a^es  its  property 
to  trustees  for  the  benefit  of  bondholders, 
iiihI  su(?I)  trustees  purchase  a  parcel  of  land 
winch  has  been  conveyed  to  the  company 
:it  the  foreclosure  of  a  |irior  mnrt(;a(;e,  but 
the  purcliase  is  made  in  their  own  right, 
and  not  as  trustees,  it  cannot  be  treated  as  a 
|iiMnciit  iif  the  mortKage  by  them  as  inort- 
^;i;;(cs  So  as  to  entitle  the  amount  to  be 
set  <ilf  against  u  mortKage  given  by  the 
Company  to  secure  the  price  of  the  land. 
(;'/,\M  V.  /Mro/f  i^  .1/,  A'.  Co..  loA/t't/i.  117. 

1 40.  — oi'triiMtiM'H  ill  iminhcnnIoii. — 
Will-re  trustees  of  a  railrijad,  selected  by  the 
ciiinpany  and  its  bijiidholders,  are  placed 
m  |i<is4ession  of  the  road,  and  operate  the 
sure  to  earn  money  to  be  applied  in  pay- 
iiii'iii  of  the  debts  of  the  corporation,  exer- 
( i^ini;  only  tiie  right  and  franchise  of  the 
company, such  tiustces  must  be  regarded  as 
the  iigcnts  of  the  corporation  in  so  far  us 
plates  to  the  transaction  of  business  with 
tliiril  persons.  l\'h<onsiti  C.  A'.  Co.  v.  A'oss, 
5?  ./w/.  ii^  /;"«;(,'•.  A'.  Cii.f.  73,  142  ///.  9,  31 
,\'.  A".  AV/.  412  ;  ajffirMtHi;  43  ///.  .///.  454. 
-  Km. LOWING  (Jrand  Tower  M.  A  T.  Co. 
7'.  Cllman,  89  III.  244. 

The  trustees  in  a  railroad  mortgage  in 
liosscssion,  after  default  and  a  foreclosure, 
(III  not  hold  a  mere  nominal,  naked,  dry 
trust  for  the  sole  benefit  of  the  ifstiiis  que 
/'//.v/,  and  their  functions  do  not  cease  upon 
till'  foreclosure,  b'^  i  must  continue  at  least 
until  there  is  some  organization  of  bond- 
lioliters  with  capacity  to  act,  and  until  rc- 
li  Acil  by  a  court  of  chancery.  Sturgei  v. 
A//.;/»/,  }l    /'/.  I. 

Where  the  mortgage  trustees  arc  in  pos- 
session of  a  road,  they  are  not  hound  by  the 
wish  of  a  majority  of  the  bondholders  as  f) 
the  future  management  of  the  property,  it 
being  impossible  to  consult  all  the  cfsfuis 
i-;/.' //■/«/,  its  the  trustees  remain  liable  to  the 
minority  for  the  manner  of  executing  the 
Irnst.     .S'tufX'is  v.  Kiuipp.  31   fV.  1. 

TI.e  law  is  now  well  settled  that  until 
possession  of  the  trust  property  is  taken  by 
the  trustee,  or  by  proper  judicial  authority, 
the  grantor  is  entitled  to  the  profits.  When 
possession  is  thus  taken,  the  trustee  be- 
comes entitled  to  the  profits,  but  only  to 


su(  h  as  tiiereafier  accrue.  Frayur  v.  Rich' 
motii/  ilj«». ./.  A'.  Co.,  25  /tin.  &*  J!^Hi;.  A'.  Cits. 
597,  81  /■<».  388.  — Foi.i.owiNii  Williamson 
V.  Washing'.(Mi  City,  V.  M.  &  G.  S.  K.  Co., 
33  (iratt.  (Va.)  624. 

A  railroad  cor|)oration  executed  a  mort> 
gage  of  its  road  and  other  property  to  a 
trustee  to  secure  payment  of  its  bonds. 
The  bonds  not  being  paid  at  maturity,  the 
trustee  took  |M)ssession  under  the  mortgage 
and  for  several  years  controlled  and  man* 
aged  the  road  and  properly  un  Ijehalf  of 
the  bondholders.  On  a  bill  in  equity 
brought  by  the  cor|M)ration  and  several 
stockholders  therein  against  the  trustee 
and  others  for  an  accounting,  and  to  re- 
deem  -held,  that  the  trustee  while  so  in 
possession  must  be  regarded  as  the  trustee 
of  the  cor|)oration  as  well  as  of  the  bond- 
holders.    Ashueht  A'.  Co.  v.  Elliot,  57  N.  //. 

397.  '3  '-''«•  ^O'-  >'»''/•  491. 

It  is  inconsistent  with  the  duties  which 
such  trustee  owes  to  the  corporation  to 
deal  in  the  bonds  whicli  the  mortgage  was 
given  to  secure  for  his  own  |)rivate  gain. 
Ashuelot  A'.  Co.  v.  Elliot,  57  A'.  //.  397,  1 3 
Am.  Ky.  /up.  491. 

Su<:h  trustee,  after  taking  possession  of 
the  road  and  entering  upon  the  |)erform- 
ancc  of  the  active  duties  of  his  trust,  can- 
not make  a  valid  contract  for  the  leasing  of 
the  road  to  another  railroad  corporation  in 
which  he  is  a  stockholder  and  director. 
Ashuelot  A'.  Co.  v.  Elliot,  57  A'.  //.  397,  13 
Ami.  h'v.  h'ip.  491. 

14 1.  Authority  to  litiffiitc  ill  lM>linir 
of'boiidiioldcrN.^— To  the  extent  that  a 
trustee  in  a  railroad  deed  of  trust  or  mort- 
gage acts  in  good  faith  he  repre!ients  the 
bondholders  in  legal  proceedings  afTccting 
the  trust,  where  they  are  not  actual  parties, 
and  whatever  binds  him  will  bind  them. 
Shaw  V.  Little  hWk  **  Ft.  S.  A'.  Co..  100  U. 
S.  605.-  QiKiTKl)  IN  Credit  Co.  t'.  Arkansas 
C.  K.  Co..  5  McCrary  (U.  S.)  23,  15  Fed. 
Kep.  46 ;  Meyer  v.  Utah  &  P.  V.  R.  Co..  3 
Utah  280. 

The  holders  of  railroad  bonds  secured  by 
a  mortgage  cannot  maintain  a  bill  of  review 
to  avoid  what  the  mortgage^  trustee  has 
done  in  their  behalf  in  legal  proceedings, 
and  if  the  bill  would  lie  the  bondholders 
would  be  entitkd  only  to  such  relief  as  the 
trustee  might  have  in  the  same  proceeding. 


■*<?• 


m    \ 


*  Authority  of  mnriHttKc  irusiees  to  represent 
bondhiilderH  in  litigation,  see  S7  Am.  &  Eno.  R. 
Cas.  186,  alistr. 


i^l  fr 


464 


MORTGAGES,  142-144. 


Shaw  V.  LiltU  Rock  6-  Ft.  S.  A\  Co..  loo  T. 
i'.  605. 

A  decree  of  foreclosure  of  a  railroad 
mortga^u  crnbodyint;  a  plan  of  rror^aniza' 
lion  will  not  be  set  asifle  t)i'<;aii»e  entered 
by  consent  of  the  niortgaKC  trustees,  wlio 
hold  bonds  secured  by  the  niort^aKe,  in  the 
absence  of  proof  of  fraud  or  unfaithfulness, 
S/i,nv  V.  l.ittU  Kock  6-  I't.  S.  A'.  Co.,  100 
U.  S.  605. 

Where  tlie  bondholders  arc  numerous 
and  scattered,  the  mort(;a(;e  trustees  may 
maintain  a  bill  in  equity  to  enjoin  an  illej^al 
proceedini;  which  will  cast  a  cloud  up<jn 
the  security  and  diminisit  the  market  value 
of  the  bonds,  or  they  may  maintain  a  bill  to 
settle  a  disputed  question  as  to  the  priority 
of  liens.  Muniock  s.  Woodson,  z  Dill.  {U. 
S.)  188. 

After  a  railroad  mortgui^e  has  been  fore- 
closed the  mortgage  trustees  cannot  enforce 
an  agreement  between  their  company  and 
another  company  whereby  the  latter  had 
agreed  to  make  good  any  deficiencies  in  the 
net  earnings  of  the  other  company  so  as  to 
meet  interest  on  in  bonds,  as  such  agree- 
ment is  for  thi-  benefit  of  the  company, 
and  not  of  the  bondholders.  Metropolitan 
Trust  Co.  V.  A'rtt'  York,  L.  E.  &*  U'.  A'.  Co., 

45  //«« 84, 9  A',  y.  s.  a:  415. 

A  trustee  in  a  railroad  mortgage  given  to 
secure  bondholders  represents  the  latter; 
thcr<;fore  general  creditors  of  the  company 
cannot  complain  that  such  trustee  has  im- 
properly given  a  release  of  errors  in  a  fore- 
closure proceeding,  /.oei  v.  C/iur,  6  A'.  K. 
i'«//.  296,  53  //un  637 ;  affirmed  in  125  A^. 
Y.  726,  26  A'.  E.  Rep.  756. 

And  where  it  appears  that  the  company 
is  hopelessly  insolvent,  and  in  no  event 
could  the  general  creditors  receive  any  of 
the  assets,  they  cannot  com|)lain  that  the 
president  of  the  company  has  executed  a 
similar  release  of  errors.  I.oeb  v.  C/iur,  6 
A',  y.  i.upp.  296.  53  Hun  637 ;  affirmed  in 
125  A'.  Y.  726,  26  A'.  R.  A',p.  75'. 

142.  Mny  coiiNiilt  wImIich  of  iiiiij<»r- 
Ity  ot'lioiidiioldcrH.— A  railroad  was  en- 
titled to  a  land  grant  as  each  twenty  miles 
was  completed.  Before  its  completion  a 
mortgage  on  the  road  was  liable  to  fore- 
closure for  non-payment  of  interest.  The 
trustees,  acting  for  a  large  majority  of  the 
bondholders,  proceeded  to  foreclose,  under 
an  arrangement  for  the  bondholders  to  buy 
In  the  road  and  reorganize.  The  minority 
bondholders  desired  a  receiver,  and  to  raise 


money  on  his  certificates  to  finish  the  road 
to  pn-veiit  a  forfeiture  of  the  land  gram. 
/It'ld,  that  it  wtis  proper  for  the  trustees  to 
be  controlled  by  the  wish  of  the  majority 
while  not  conflicting  with  their  duties  as 
trustees.  Also  that  the  phin  of  fureclusurc 
and  reorganization  should  be  preferred. 
Courts  should  never  be  u.sed  to  enal)lf 
mortgagees  to  borrow  money  to  complete 
roads,  except  under  extraordinary  (ircum- 
stances.  Sliaw  v.  LittU  A'o,k  &^  It.  S.  A'. 
Co.,  100  U.  .V.  Tjoj. 

14:1.  TriiHtuvN*  |>o\vi>r  to  h«>II  kIvcii 
ill  liiortKilKt'.— Trustees  un<ler  ii  deed  of 
trust  given  by  a  railroad  to  secure  bonds  is- 
sued by  it,  authorizing  them  to  sell  without 
foreclosure,  may  proceed  to  do  so  upon 
condition  broken,  and  such  sale  will  divest 
the  title  of  the  company.  Hruiisjoitk^  .1. 
A*.  Co.  V.  //ux/ns,  52  ii'a.  557,  7  ^m.  Ay.  AV/. 

If  the  mortgage  of  a  railroad  creates  a 
trust,  and  provides  that  the  power  of  sale  is 
to  be  executed  by  the  trustee  on  certain 
contingencies,  he  may  be  controlled,  re- 
strained, and  directed  by  a  court  of  equity 
at  the  suit  of  a  party  standing  in  the  rela- 
tion of  cestui  ^iie  trust;  the  rule  for  his 
guidance  being  derived  from  the  instrument 
itself.  Rradliy  V.  Cluster  I 'alley  R.  Ctf..  36 
Pa.  St.  141.  — DlsTlNC.UisHKK  IN  I'hila- 
dclphia  &  B.  C.  K.  Co.  v.  Johnson,  54  I'a. 
St.  127. 

144.  Power  to  rutity  lviiN(>M  by 
iiiort|;ii|;or.  —  A  railroad  company  exe- 
cuted a  mortgage  of  real  estate  to  trustees 
reciting  that  they  were  desirous  of  raising 
money  by  loan  not  exceeding  in  amount 
$350,000,  and  had  determined  to  issue 
bonds  of  a  form  which  was  annexed,  and 
that  the  mortgage  was  executed  in  order  to 
secure  the  same.  The  annexed  form  con- 
tained a  certificate  that  the  bond  was  se- 
cured by  mortgage  to  the  trustees  on  real 
estate  for  the  sum  of  $350,000.  The  mort- 
gage contained  a  provision  authorizing  the 
trustees  in  case  of  failure  to  pay  the  princi- 
pal or  interest,  or  any  part  thereof,  for  ninety 
days  from  demand  made  after  any  of  the 
said  bonds  should  become  due,  to  enter  at 
the  request  of  the  bondholders,  and  take  pos- 
session and  use  the  premises,  and  apply  the 
proceeds  to  the  pro  rata  payment  of  the 
un)}aid  bonds ;  or,  under  circumstances 
therein  expressed,  to  causr  the  premises,  or 
so  much  thereof  as  might  be  necessary,  to 
be  sold  at  public  auction.    The  mortgage 


tli( 
tht 
ih( 
ex| 


MORTGAGES,  145-147. 


465 


also  contained  the  following'  provision: 
"  And  it  is  furtiivr  mutunliy  a({rcL-d  tliat 
until  breach  of  cr)ndition  of  the  aforesaid 
mortgage  the  party  of  the  first  part,  their 
siiccess(jrs  and  assigns,  shall  remain  in  un- 
(listiirl)cd  possession  and  occupation  of  the 
premises  hereby  conveyed  ;  and  nothing 
herein  contained  shall  be  so  construed  as  to 
i)revent  said  corporation  from  improving 
said  real  estate,  or  making  leases  of  such 
parts  thereof  as  they  may  desire  and  have 
opportunity  to  make."  Held,  that  under 
this  provision  the  validity  of  leases  exe- 
cuted by  the  mortgagors  subsecpiently  to 
tile  execution  of  the  mortgage,  and  their 
authority  to  execute  leases,  terminated 
upon  breach  of  the  condition  of  the  mort- 
gage ;  and  that  the  trustees  could  not,  by 
an  oral  assent,  conhrm  leases  so  as  to  give 
them  validity  thereafter,  llnvcn  v.  lioUon 
Sf'  11 '.  A.  Corp.,  4  AllfH  {A/,is.<.)  8o. 

145.  ItceriptH  and  cxpciulitiireM 
of  money— CliiirK<^H  iiKuiiiNt  iiiconiu. 
—  Where  a  railway  mortgage  provides  for 
the  payment  of  interest  on  the  bonds  se- 
cured, at  stated  semi-annual  periods,  our  of 
the  net  earnings  of  the  company,  the  latter 
owes  the  duty  to  the  bondholders  to  keep 
its  accounts  so  as  to  show  the  net  earnings 
(or  each  period ;  and  the  mortgage  trustees 
arc  charged  with  the  duty  of  so  supervising 
tiie  accounts  that  this  may  appear,  /furry 
v.  Af/ssouri,  A'.  &*  T.  li.  Co.,  29  /////.  is* 
Ell):.  A'.  Ciu  384,  27  l-'ed.  AV/>.  1. 

The  expenses  defrayed  or  incurred  in 
producing  the  earnings  for  a  given  interest 
period  are  the  only  charges  which  can  enter 
into  the  inccmie  account  for  that  period, 
except  the  payment  of  interest  on  prior  en- 
cumbrances, as  stipulated  by  the  terms  of 
the  mortgage;  and  the  company  cannot 
charge  against  income,  for  any  period  dur- 
ing the  life  of  the  mortgage,  a  payment  or 
a  liability  incurred  on  account  of  old  in- 
debtedness existing  before  the  mortgage 
was  created,  or  arising  from  a  loss  incurred 
by  the  sale  of  bonds  issued  tr>  pay  ofT  old 
indebtedness.  Harry  v.  Missouri,  A'.  &*  T, 
A'.  Co.,  29  Am.  &>  £«(,'.  A'.  Cas,  384,  27  Fed. 
AV/.  I. 

A  provision  in  a  railroad  mortgage  for 
the  expenditure  of  inoney  received  from 
tile  sale  of  part  of  the  property  clear  of 
the  mortgage  is  not  complied  with  by  the 
expenditure  of  other  money  before  the  re- 
ceipt of  the  purchase  money  of  the  pron- 
erty  sold  unless  it  was  expended  under  ci<- 
6  D.  R.  D.— 30. 


cumstances  such  as  to  connect  the  antece- 
dent expenditure  and  the  purchase  money 
together  in  such  a  way  as  to  show  that  the 
expenditure  was  made  with  the  expectation 
of  reimbursement  out  of  the  purchase 
money,  and  in  reliance  upon  the  receipt 
thereof  for  that  purpose.  Loiij^  Ihuk  Co. 
V.  Morris »!»-  E.  A'.  Co..  (.V.  /.  AV-)  30 .////.  &* 
En^.  A'.  Ciis,  431,  9  .///.  A'*/.  194. 

140.  liiN|H>ftion  an<l  approval  of 
iniprovi'llM'litN.  -A  mortgage  of  ■,\  rail- 
nnid  given  to  a  trustee  for  the  bondholders 
provided  that  a  further  issue  of  bonds,  with 
the  same  security,  might  be  made  at  a  sub' 
sequent  time  for  the  purposir  of  making  im- 
provements, but  that  the  company  should 
first  submit  to  the  trustee  the  question  of 
the  policy  and  necessity  of  making  said  im- 
provements and  obtain  his  approval  thereof. 
Certain  work  having  been  done  subse- 
quently upon  the  line  without  consulting 
the  trustee  in  advance,  the  company  re- 
quested that  it  be  inspected  and  bonds  to 
the  proper  amount  be  issued  if  approved. 
The  trustee  objected  because  the  applica- 
tion came  too  !ate  to  allow  an  impartial 
decision  to  be  made,  the  proper  time  being 
before  the  work  was  begun.  Held,  that  it 
did  not  appear  from  the  deed  t.>  be  certain 
that  the  trustee  must  give  his  decision  until 
the  issue  of  bonds  was  demande<l,  and  that, 
as  it  was  for  the  benefit  of  the  bondholders 
that  he  should  wait  U)x  the  improvements 
to  be  completed  before  giving  an  opinion 
as  to  their  expediency,  he  could  not  refuse 
to  comply  with  the  request  of  the  company. 
North  C/iica^o  R.  Co,  v.  Fidelity  Ins.  Co.,  19 
Philii.  (/',!.)  354. 

147.  I>ut,v  to  account  to  IioimI- 
lioldcrM.  —  Where  a  mortgage  trustee  is 
authorized  to  purchase  the  property  .it  a 
foreclosure  sale,  the  purchase  to  enure  to 
the  benefit  of  tlie  bondholders,  upon  each 
one  paying  his  proportionate  share  of  tli<! 
money  and  expenses  paid  out  by  the  trustee, 
the  payment  or  tender  of  such  proportion- 
ate amount  is  a  condition  precedent  to  the 
right  of  the  bon«lholder  to  demand  an  ac- 
counting from  the  trustee.  Zebley  v.  Fiiriii' 
ers'  I..  &*  T.  Co.,  45  A'.  Y.  S.  R.  425,  18  A', 
Y.  Siipfi.  526. 

And  a  bondholder  will  not  be  allowed  to 
come  in  after  a  lapse  of  fourteen  years  and 
pay  his  proportionate  share  so  as  to  par- 
ticipate in  the  benefits  of  the  purchase, 
where  the  property  in  the  meantime  has 
been  sold  by  the  trustee,    iiebley  v.  Farm- 


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MORTGAGES,  148-153. 


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ers'  L.  &-  T.  Co.,  45  A^.  Y.  S.  K.  425,  18  A'. 
Y.  Siipp.  526. 

14:8.  Effect  of  notice  to  trustee- 
Notice  to  a  trustee  is  notice  to  the  cestui 
que  trust ;  and  tliis  rule  applies  to  trustees 
under  an  ordinary  mortgage  made  by  a 
railroad  comp;iny  to  secure  the  holders  of 
bonds  issued  under  it.  Fi-'elitv  /.,  T.  &^  S. 
D.  Co.  V.  Shenandoah  Valley  K.  Co..  38  Am. 
&•  En^;.  R.  Cas.  577,  32  JV  I'.t.  244,  9  S.  E. 
Rep.  180.     Haven  v.  Erne    ,  -^    N.  H.  'i''\ 

14!».  Action  by  tr'^Mrees  for  in- 
struction l)y  tlie  court. — Where  mort- 
gage trustees  file  a  bill  to  obtai  Instruction 
of  the  court  as  to  the  applic  r  of  funds, 
it  is  not  necessary  to  make  '■  .-  i.ie  com- 
pany, or  a  depositary  of  th  r_.ids  who 
holds  to  tlie  credit  of  the  trustee^,  a  party; 
nor  is  it  necessary  to  make  a  sheriflf  a  party 
who  has  levied  an  attachment  on  the  fund. 
Coe  V.  Beckwith,  10  Abb.  Pr.  (,N.  Y.)  296, 
31  liarb.  339,  19  How.  Pr.  398. 

150.  Liabilities  of  tlie  trustees, 
Ui'ncrally.*— Where  a  party  obtains  a 
iiiigmeiu  against  a  railroad  company  while 
It  is  in  the  hands  of  trustees,  and  files  a  bill 
against  a  new  company  which  has  succeeded 
to  the  property  by  virtue  of  a  foreclosure 
sale,  seeking  to  charge  it  with  said  judg- 
ment, and  claiming  that  the  trustees  paid 
money  to  tlie  bondholders  that  should  have 
gone  in  discharge  of  the  judgment,  the 
complaint  is  bad  on  demurrer  if  it  fails  to 
allege  what  amount  of  earnings  of  the  road, 
if  any,  had  been  received  by  the  trustees. 
Nicholson  v.  Louisville,  N.  A.  <S^  C.  R.  Co., 
55  Ind.  504,  16  Am.  Ry.  Rep.  258. 

A  court  of  equity  may  enjoin  parties  from 
proceeding  in  a  court  of  law  in  another 
state,  but  this  will  rarely  be  done.  Such 
courts  usually  act  in  personam,  and  enforce 
obedience  to  their  decrees  by  attachment, 
hut  they  sometimes  enforce  obedience  by 
sequestration  of  the  property  of  a  party; 
but  where  the  proceeding  is  against  mort- 
gage trustees,  such  remedy  is  not  available, 
as  the  rights  of  the  cestuis  que  trust  could 
not  be  affected  by  sequestration  of  the 
property  in  the  hands  of  the  trustees.  Bank 
of  Bellows  Falls  v.  Rutland  <5-  B.  R.  Co.,  28 
Vt.  470.— Followed  in  Vermont  &  C.  R. 
Co.  V.  Vermont  C.  R.  Co.,  46  Vt.  792. 

Iftl.  for    labor   and   supplies 

necessary  in  operation  of  the  road.— 
Although  supplies  were  furnished  at  a  time 

*  Liability  of  trustees  operating  railroad,  see 
note,  17  Am.  &  Eng.  R.  Cas.  285. 


when  a  railway  company  was  in  default  to 
pay  interest  on  bonds,  and  when  the  trustees 
under  a  mortgage  might  have  taken  posses- 
sion under  a  statute,  but  neglected  to  do  so, 
the  company  was  not  thereby  constituted 
negotiorum  gestor  of  the  trustees  so  as  to 
render  the  latter  liable  for  supplies  necessary 
for  the  operation  of  the  road  obtained  by 
the  company  before  the  trustees  took  pos- 
session. Farwell  v.  Walhridge,  6  Montr. 
L.  R.  77  ;  reversing  3  Montr.  Super.  23S. 

15ti.  for  loss  of  {;<»ods  carried. 

— Where  mortgage  trustees  are  authorized  to 
bid  in  the  property  at  a  foreclosure  sale,  and 
do  so,  and  take  possession  and  operate  the 
road  for  the  benefit  of  the  mortgage  bond- 
holders, so  far  as  the  public  is  concerned, 
they  will  be  regarded  as  owners  of  the  road, 
and  liable  as  common  carriers  for  goods 
transported.  Rogers  v.  IV/ieeler,  43  N.  Y. 
598 ;  affirming  2  Lans.  486.  Barter  v. 
Wheeler,  49  N.  H.  9. 

Such  persons  are  in  no  sense  receivers,  or 
officers  o.f  the  court,  entitled  to  the  immu- 
nities from  the  ordinary  liabilities  of  per- 
sons conducting  such  business,  if  any,  be- 
longing to  such  officers.  Rogers  V.  Wheeler, 
43  A^   Y.  598 ;  affirming  2  Lans.  486. 

153.  for  ne^lif^ence  of  em- 
ployes eng:a($'cd  in  operating:  the 
road. — A  railroad  company  cannot  escape 
liability  to  the  public  for  the  negligence  of 
its  employes  by  reason  of  the  fact  that  it 
has  turned  over  the  management  of  the 
road  to  trustees  ;  in  such  a  case  the  trustees 
are  but  agents  of  the  company.  Jones  v. 
Pennsylvania  R.  Co.,  8  Mackey  (D.  C.)  178. 

Under  Conn.  Rev.  St.  1866,  §  544,  mak- 
ing railroad  companies  liable  in  a  certain 
amount  for  negligently  causing  the  death 
of  a  passenger,  a  trustee  who  is  in  posses- 
sion and  operating  a  railroad  for  the  benefit 
of  the  bondholders  or  other  creditors  is 
equally  liable.  Lamphear  v.  Buckingham, 
33  Conn.  237. 

The  trustees  under  a  railway  mortgage 
for  the  benefit  of  bondholders,  after  taking 
possession  of  the  road,  and  entering  into 
an  agreement  for  a  lease,  but  where  they 
still  receive  the  earnings  of  the  road,  pay 
its  expenses,  employ  and  discharge  em- 
ployes, and  exercise  the  usual  powers  of 
railroads,  are  liable  for  the  negligence  of 
an  employe  while  operating  the  road.  Bal- 
lou  v.  Farnum,  9  Allen  (Mass.)  47.  — RE- 
VIEWED IN  Lyman  v.  Central  Vt.  R.  Co., 
59  Vt.  167. 


> 


MORTGAGES,  154,  155. 


467 


154.  Liability  for  fraudulent  di- 
version   of    corporate    property.  — 

Where  a  company  mortgages  all  of  its 
present  and  after-acquired  property  to  se- 
cure its  bondholders,  a  bondholder  may 
maintain  a  bill  to  restrain  the  fraudulent 
diversion  of  iron  rails,  acquired  by  the  com- 
pany after  the  making  of  the  mortgage, 
unsier  a  resolution  of  the  board  of  directors 
authorizing  one  of  the  mortgage  trustees  to 
dispose  of  such  rails  to  raise  money  to  aid 
in  the  construction  of  an  extension  of  the 
road.  Wee/Jen  v.  St.  Paul  &*  P.  R.  Co.,  4 
Hun  {N.  Y.)  529. 

And  the  right  of  such  bondholder  to  in- 
terfere is  not  aflected  by  the  fact  that  a  part 
of  such  rails  had  been  previously  pledged 
with  a  firm,  of  which  such  trustee  was  a 
member,  to  secure  advances  made  to  the 
road,  as  such  firm  could  not  claim  to  be 
iona  fide  purchasers,  as  knowledge  to  the 
trustee  was  knowledge  to  the  firm.  Wectjen 
V.  St.  Paul  &•  P.  R.  Co.,  4  Hun  {N.  Y.) 
529. 

155.  Liability  to  bondholders  for 
nc$;Icct  of  duty. — The  relation  existing 
between  a  mortgage  trustee  and  the  bond- 
holders who  are  secured  by  the  mortgage 
makes  it  the  duty  of  the  trustee  to  see  that 
the  property  is  not  burdened  by  unjust  de- 
mands or  unnecessary  expenditures ;.  and 
this  duty  is  not  fully  discharged  by  the  trus- 
tee holding  himself  ready  to  contest  any  item 
to  which  the  bondholders  may  call  his  at- 
tention. De  Retz's  Petition,  9  Abb.  N.  Cas. 
{N.  Y.)  246. 

Where  a  mortgage  trustee  allows  persons 
claiming  to  hold  a  majority  of  the  bonds 
secured  to  institute  proceedings  in  the 
name  of  the  trustee  to  foreclo5e,  and  allows 
sucli  proceedings  to  be  prosecuted  to  final 
judgment  without  any  attention  on  the 
part  of  the  trustee,  but  wholly  directed  and 
controlled  by  such  persons,  such  trustee  is 
liable  to  a  bondholder  who  may  be  dam- 
aged by  reason  of  a  failure  faithfully  to  dis- 
charge the  duties  devolving  upon  the  trus- 
tee. Merrill  v.  Farmers'  L.  &-  T.  Co.,  24 
Hun  (M  Y.)  297 ;  adhered  to  in  4  N.  Y.  S. 
R.  122. 

But  in  order  for  a  boi;dholder  to  recover 
damages  against  the  trustee  he  must  estab- 
lish the  amount  and  extent  of  his  loss 
approximately,  and  also  the  fact  that  he 
has  actually  suffered  loss  by  the  act  of  the 
trustee.  Merrill  v.  Farmers'  L.  &*  T.  Co., 
AN.  Y.S.R.  122. 


Trustees  named  in  a  mortgage  to  secure 
bondholders  were  made  parties  defendant 
to  a  bill  CO  foreclose  the  mortgage  filed  by 
certain  of  the  bondholders,  and  allowed  a 
decree  to  be  taken  by  default.  Held,  that 
this  supineness  was  a  constructive  fraud 
against  the  bondholders  whom  they  repre- 
sented ;  and  if  taken  advantage  of  by  the 
complainants  in  the  suit,  to  the  prejudice 
of  the  bondholders,  the  complainants  be- 
came participants  in  the  fraud.  Campbell  v. 
Texas  &»  N.  O.  R.  Co.,  i  Woods  (U.  S.) 
368. 

A  mortgage  trustee  was  authorized  in 
case  of  default  to  foreclose  on  request  of 
holders  of  a  certain  amount  of  the  bonds 
secured ;  or,  on  written  request  of  a  major- 
ity of  the  bondholders,  he  was  authorized 
to  purchase  the  property  at  a  foreclosure 
sale,  and  proceed  to  organize  a  new  com- 
pany for  the  benefit  of  the  bondholders, 
upon  such  terms  as  a  majority  of  them 
shall  direct.  Default  was  made,  a  proper 
request  was  made,  and  a  foreclosure  suit 
was  commenced,  but  before  a  sale  plaidtiflf, 
a  bondholder,  asked  for  a  stay  of  proceed- 
ings, and  an  order  was  entered  by  which 
the  trustee  was  directed  to  bid,  "  for  the 
benefit  of  all  the  holders  of  bonds,"  up  to 
$450,000;  but  he  bid  $750,000,  and  took  the 
title  to  the  property,  no  request  having 
been  made  by  a  majority  of  the  bondhold- 
ers for  the  trustee  to  make  the  purchase; 
whereupon  plaintiff  brought  suit  to  recover 
the  amount  of  his  bonds.  Held,  that  the 
trustee  had  the  right  to  make  the  purchase 
as  against  plaintiff;  and  as  the  mortgage 
imposed  no  restraint  as  to  the  price,  and  as 
the  order  did  not  forbid  a  higher  price  than 
that  specified,  he  had  a  right  to  bid  over 
that  amount.  James  v.  Cowing,  2  Am.  &• 
Eng.  R.  Cas.  336,  82  A'.  Y.  449;  reversing 
17  Hun  256. 

After  such  purchase,  upon  request  of  a 
majority  of  the  bondholders,  the  trustee 
advertised  the  property  for  sale,  and  sold  it 
to  another  company  for  $100,000.  Held, 
that  such  sale  was  unlawful ;  that  the  re- 
quest of  the  majority  of  the  bondholders 
gave  no  authority  to  make  it  so  long  as 
any  bondholder  dissented ;  that,  if  for  any 
reason  the  due  execution  of  the  trust 
seemed  to  the  trustee  impossible,  he  should 
have  sought  the  direction  of  the  court. 
/antes  v.  CovJtng,  2  Am.  <S-  Eng.  R.  Cas, 
336,  82  A'^.   Y.  449;  reversing  17  Hun  256. 

Plaintiff's  measure  of  damages  was  the 


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468 


MORTGAGES,  150. 


I 


■1? 


value  of  his  proportional  part  of  the  prop- 
erty thus  wrongfully  sold.  James  v.  Cow- 
ing, 2  Am.  &•  Eng.  R.  Cas.  336,  82  A^.  Y. 
4.49  ;  reversing  17  Hun  256. 

T.  and  C.  were  trustees  under  a  mort- 
gage, their  duty  being  to  certify  to  the  per- 
fornumce  of  certain  conditions  preccder.t  to 
the  issuing  of  the  bonds  of  a  company  se- 
cured by  said  mortgage ;  said  bonds  were 
taken  by  S.  The  complainant,  S.,  charged 
the  trustees  with  negligent  and  faithless 
performance  of  duty,  attributed  loss  sus- 
tained by  them  to  this  cause,  and  sought 
reimbursement  from  the  estate  of  T.,  who 
is  now  deceased.  The  court,  being  s.  if.'ied 
tliat  a  loss  did  result  from  the  negligiv^eof 
T.,  referred  the  case  to  a  master  to  ascer- 
tain the  damages,  with  instructions  that  the 
proper  measure  of  damages  would  be  the 
difference  in  value  of  the  property  as  actu- 
ally sold  under  foreclosure  and  the  value 
under  foreclosure  had  the  trustees  per- 
formed their  full  duty.  The  claim  of  neg- 
ligence against  C.  was  not  sustained  by  the 
court,  and  the  bill  as  to  him  was  dismissed. 
Sulzbach  v.  Thomson,  17  Phila.  (Pa.)  530. 

156.  Cuiiiiicusatiou  of  trustees, 
geiicrallj'.— A  holder  cf  railroad  bonds 
secured  by  a  mortgage  has  an  interest  in 
the  amount  of  the  trustee's  compensation, 
which  entitles  him  to  intervene  in  a  fore- 
closure suit,  and  to  contest  it,  and  to  appeal 
from  an  adverse  decision.  Williams  v. 
Morgan,  17  Atn.  <S-»  Eng.  K.  Cas.  217,  ill 
U.  S.  684,  4  Sup.  a.  Rep.  638. 

When  purchasers  at  a  sale  of  a  railroad 
under  foreclosure  purchase  under  an  agree- 
ment, recognized  by  the  court  and  referred 
to  in  the  decree,  that  a  new  mortgage  shall 
be  issued  after  the  sale,  a  part  of  which  is 
to  be  applied  to  the  payment  of  the  fore- 
closure debt,  and  a  part  to  the  payment  of 
expenses,  which  expenses  include  the  com- 
pensation of  the  trutees  under  the  mort- 
gage foreclosed,  the  purchasers  have  an 
interest  in  fixing  that  compensation  which 
entitles  them  to  intervene,  and  to  appeal 
from  an  adverse  decision.  Williams  v. 
Morgan,  17  Am.  <S««  Eng.  R.  Cas.  2.17,  in 
U.  S.  684,  4  Sup.  Ct.  Rep.  638.— Distin- 
guishing Swann  v.  Wright,  110  U.  S.  590. 

Where  iliere  are  two  mortgage  trustees, 
one  resident  and  having  actual  control  of 
the  mortgaged  road,  amounting  to  134 
miles  of  road,  and  having  the  charge  of 
business  amounting  to  $160,000,  and  the 
other  residing  at  a  distan  .e  and  only  ex- 


amining  the  reports  made  by  his  co-trustee, 
an  allowance  of  $5000  to  the  resident  trus- 
tee and  of  $1500  to  the  other  is  deemed 
proper.  Walker  v.  (Juincy,  M.  &•  P.  R.  Co., 
28  Eeil.  Rep.  734. 

Where  it  appears  tliat  trustees  and  re- 
ceivers of  a  road  had  contracted  to  serve 
for  S1500  per  year,  and  since  litigation  had 
commenced  they  had  been  paid  S4500  per 
year  for  services  which  were  not  exclusive 
of  their  other  business,  nor  of  such  a  nature 
as  to  impose  great  responsibility,  nor  take 
all,  or  nearly  all,  of  their  time,  there  is  no 
ground  for  allowing  further  compensation. 
Easton  v.  Houston  &^  T.  C.  R.  Co.,  40  Eeil. 
Rep.  189. 

Though  a  railroad  mortgage  may  have 
been  originally  for  $1,500,000,  yet  where  the 
whole  amount  has  been  discharged  before 
foreclosure  proceedings  are  commenced  ex- 
cept one  bond  amounting  to  $500,  and  the 
mortgage  trustee  merely  allows  the  use  of 
his  name  in  the  litigation,  and  renders 
nothing  more  than  nominal  services,  an  al- 
lowance to  him  of  $500  is  ample  compensa- 
tion. Easton  v.  Houston  &•  T.  C.  R.  Co.,  40 
Fed.  Rep.  189. 

A  mortgage  upon  a  railway  and  its  lands 
stipulated  that  the  proceeds  of  the  sale  of 
the  mortgaged  lands  were  to  constitute  a 
sinking  fund  for  the  discharge  of  the  bonds 
secured  by  the  mortgage ;  that  the  holders 
of  any  mortgage  bonds  should  have  the 
privilege  of  purchasing  lands  with  the  same 
at  not  less  than  a  fixed  minimum  price; 
that  the  trustees  of  the  bondholders  should 
be  required  to  cancel  the  bonds  so  received ; 
and  that,  "for  services  in  selling  and  con- 
veying the  lands  herein  described,  and  ap- 
plying the  proceeds  to  the  sinking  fund," 
the  trustees  were  to  receive  "two  per  cent, 
on  the  pnr  amount  of  the  bonds  canceled." 
Held,  that  a  sale  of  lands  and  payment  in 
bonds  were  equivalent  to  a  sale  for  cash, 
and  that  the  trustees  were  entitled  to  two 
per  cent,  on  the  par  value  of  bonds  received 
in  exchange  for  lands  and  canceled.  Gil- 
man  v.  Des  Moines  Valley  R.  Co.,  41  Jotva 
22. 

If  a  mortgage  by  a  company  to  trustees 
to  secure  the  payment  of  certain  bonds 
with  semi-annual  interest  provides  that  in 
default  of  payment  the  trustees  may  enter 
into  and  take  possession  of  the  premises, 
and  "by  themselves,  their  agents,  or  sub- 
stitutes have,  use,  and  enjoy  the  same, 
making  from  time  to  time  all  needful  re- 


MORTGAGES,  157,  158. 


4dd 


/ 


pairs,  alterations,  or  additions  tliereto,  and, 
after  deducting  the  expenses  of  sucli  use, 
repjiirs.  alterations,  and  additions,  apply  tiie 
proceeds  thereof  to  the  payment  of  the 
principal  and  interest  of  all  said  bonds  re- 
nuiining  due  and  unpaid,  pro  rata,"  and 
tliat  the  trustees  "  shall  be  entitled  to  re- 
ceive proper  compensation  for  every  labor 
or  service  performed  in  the  discliarge  of 
said  trust  in  case  they  shall  be  compelled 
to  take  possession  of  said  premises  or  any 
part  thereof,  or  to  manage  the  same,"  the 
trustees,  iiaving  take:i  possession  for  breacli 
of  condition,  may,  on  a  bill  to  redeem,  be 
allowed  any  sum  which  is  reasonable  for 
tlieirown  services  and  expenditures  author- 
ized by  the  mortgage,  but  not  for  counsel 
fees  in  suits  between  them  and  the  mort- 
gagors, or  for  insurance  procured  by  them 
without  the  request  of  the  mortgagors. 
Boston  <S-  W.  A'.  Corp.  v.  Haven,  8  Allen 
(Mass.)  359. 

157.  Allowance  for  e'i»eiises  and 
disbiirsenicnts.  —  When  tne  trust  deed 
provides  for  the  payment  of  the  expenses 
of  foreclosure  proceedings,  as  well  as  com- 
pensation for  the  execution  of  the  trust,  an 
order  will,  on  the  application  of  the  trustee, 
be  entered  directing  the  receivers  to  pay  to 
the  trustee  a  sum  on  account  of  the  ex- 
penses and  services.  Mercantile  Trust  Co. 
V.  Missouri,  K.  &•  T.  R.  Co.,  43  Am.  &*  Eng. 
R.  Cas.  469,  \i  Fid.  Rep.  8. 

Trustees  in  a  railroad  mortgage  have  an 
inherent  equitable  right  to  be  reimbursed 
all  expenses  reasonably  incurred  in  the  exe- 
cution of  the  trust,  and  it  is  immaterial  that 
there  are  no  provisions  for  such  expenses 
in  the  instrument  of  trust.  Rensselaer  &• 
S.  R.  Co.  V.  Miller,  47  Vt.  146. 

A\\  such  expenses  are  a  lien  upon  the 
trust  property,  and  the  trustee  will  not  be 
compelled  to  part  with  the  property  until 
such  expenses  are  paid.  Rensselaer  &•  S. 
R.  Co.  V.  Miller,  47  Ft.  146.— Quoted  in 
McLane  v.  Placerville  &  S.  V.  R.  Co.,  26 
-Am.  &  Eng.  R.  Cas.  404,  66  Cal.  606;  Lang- 
don  V.  Vermont  &  C.  R.  Co.,  54  Vt.  593. 

Plaintiff  was  one  of  three  trustees  ap- 
pointed by  and  under  a  mortgage  given  by 
a  railroad  company  to  secure  certain  of  its 
bonds.  Said  company  subsequently  exe- 
cuted a  lease  of  its  road  to  plaintifl  for 
the  unexpired  term  of  its  charter  on  con- 
sideration that  he  should,  among  other 
tilings,  pay  the  interest  upon  said  bonds 
and  the  principal  at  maturity.     This  liabil- 


ity [)laintifT  assumed  without  any  considera- 
tion or  prospect  of  personal  benefit,  but 
solely  in  the  interest  and  for  the  protection 
of  the  bondholders,  and  with  the  under- 
standing that  he  should  transfer  it  on  the 
same  terms  to  the  E.  R.  Co.  He,  in  pursu- 
ance of  this  understanding,  leased  the  road 
to  that  company,  it  agreeing  to  n:ake  the 
payments  and  perform  the  covenants  in  the 
lease  to  plaintiff.  The  E.  R.  Co.  entered 
into  possession,  and,  after  performing  its 
covenants  and  paying  the  interest  on  the 
bonds  for  several  years,  defaulted  became 
insolvent,  and  its  assets  went  intc  >  hands 
0/  a  receiver.  An  action  to  forei  ose  said 
mortgage  was  brought  by  said  trustees 
against  the  mortgagor,  plaintiff  individu- 
ally, and  the  successors  of  the  E.  R.  Co., 
which  resulted  in  a  judgment  for  a  sale  and 
for  a  deficiency  against  the  mortgagor  and 
plaintiff.  Plaintiff  commenced  and  carried 
on  a  series  of  litigations  in  his  individual 
name  against  the  E.  R.  Co.,  its  receiver, 
and  others  to  compel  payment  to  the  bond- 
holders of  the  unpaid  interest.  These  liti- 
gations resulted  in  the  collection  of  a  fund, 
w!iich  was  deposited  in  a  bank  to  the  credit 
of  vhe  trustees.  In  a  proceeding  to  obtain 
certain  allowances  for  plaintiff's  services 
and  expenses  in  prosecuting  said  litigations 
— /teld,  that  in  so  doing  plaintiff  was  per- 
forming a  trust  duty,  and  was  entitled  to  an 
allowance  for  his  necessary  costs  and  ex- 
penses, and  to  a  compensation  for  his  ser- 
vices, at  the  rate  usually  awarded  to  exec- 
utors and  administrators.  Woodruff  v.  New 
York,  L.  E.  <S-  W.  R.  Co.,  51  Aw.  5-  Eng. 
R.  Cas.  89,  129  N.  V.  27,  29  A'.  E.  Rep.  251, 
41  A^.  Y.  S.  R.  193;  modifying  31  N.  Y.  S. 
R.  7,  loN.   Y.  Supp.  305. 

158.  Allowances  to  triLstees' coun- 
sel.— Where  a  mortgage  on  a  road  of  con- 
siderable magnitude  was  foreclosed,  and 
many  other  questions  had  to  be  litigated, 
except  those  pertaining  to  a  strict  fore- 
closure, the  court  sitting  in  the  city  of  St. 
Louis,  Mo.,  counsel  of  that  city  were  allowed 
$5000,  New  York  counsel  a  like  amount, 
and  counsel  of  St.  Joseph  were  allowed 
$2000.  Walker  v.  Quincy.  M.  &>  P.  R.  Co., 
28  Fed.  Rep.  734. 

Where  a  mortgage  trustee  insists  on  the 
services  of  his  attorney  in  filing  a  fore- 
closure bill,  and  it  is  admitted  at  the  time 
that  the  services  were  worth  $2500,  that 
amount  should  be  allowed.  Easton  v. 
Houston  &^  T.  C.  R.  Co.,  40  Fed.  Rep.  189. 


■  w. 


470 


MORTGAGES,  150,  160. 


Where  there  was  substantially  no  contest 
in  a  foreclosure  proceeding,  but  the  matter 
carried  out  according  to  a  plan  of  reorgani- 
zation, the  court  allowed  $100,000  as  ample 
compensation  to  the  solicitors  who  repre- 
sented the  trustees  of  all  the  mortgages,  to 
be  divided  among  them  in  certain  specified' 
amounts.  Easton  v.  Houston  &*  T.  C.  A'. 
Co.,^o  Fed.  Kep.  189.— Distinguished  in 
Central  Trust  Co.  v.  Valley  R.  Co.,  55  Fed. 
Rep.  903. 

Where  a  mortgage  trustee  declines  to  act 
in  a  foreclosure  proceeding,  but  agrees  that 
complainant,  who  is  a  holder  of  a  majority 
of  the  bonds,  shall  bring  the  suit,  and  the 
trustee  is  made  a  defendant,  and  full  allow- 
ance is  made  to  the  trustee  for  his  services, 
and  to  the  complainant's  counsel,  it  is  not 
error  to  refuse  a  further  allowance  to  the 
trustee's  counsel.  Investment  Co.  v.  Ohio 
&*  N.  W.  R.  Co.,  46  Fed.  Rep.  696.— RE- 
VIEWING Tracy  v.  Gravios  R.  Co.,  :3  Mo. 
App.  295.  — Distinguished  in  Central 
Trust  Co.  V.  Valley  R.  Co.,  55  Fed.  Rep.  903. 

VI.  ENFOBCEMENT;  FORECLOSUBE. 

1.  The  Different  Remedies  Available. 

150.  Construction    ot    .statutes.— 

The  intention  of  Me.  Rev.  St.  1857,  ch.  57, 
is  to  provide  a  mode  for  the  foreclosure  of 
all  existing,  as  well  as  all  subsequent,  rail- 
road mortgages,  and  it  therefore  applies 
to  mortgages  executed  before  its  passage. 
Kennebec  &-  P.  R.  Co.  v.  Portland  <S-  A'.  R. 
Co.,  59  Afe.  9. 

A  mortgage  was  given  by  a  company  to 
trustees  to  secure  certain  bonds  one  of  the 
terms  of  which  was  that,  if  the  principal  or 
interest  should  not  be  paid  at  the  time 
stated,  the  principal  sum  secured  by  the 
mortgage  should  become  immediately  due 
"at  the  election  of  the  trustees."  Held, 
that  a  subsequent  act  of  the  legislature 
could  not  authorize  a  sale  of  the  property, 
free  from  this  mortgage,  where  the  trustees 
had  not  exercised  such  election,  and  the 
mortgage  moneys  were  not  due,  Randolph 
V.  Middleton,  26  N.  J.  Eq.  543. 

IGO.  Wlint  <l(;tUult  will  authorize 
foreclosure. — Where  a  railroad  company 
is  insolvent,  and  has  no  funds  at  the  place 
where  its  bonds  are  payable,  presentment 
and  demand  of  payment  at  such  place  need 
not  be  made  before  a  suit  to  foreclose  a 
mortgage  to  secure  the  bonds.  Shaw  v. 
Bill,  95  U.  S.  10. 

In  the  absence  of  any  special  provision 


therefor,  a  mortgage  as  security  for  interest 
as  well  as  principal  may  be  foreclosed  on 
default  in  payment  of  the  interest.  JMer- 
cant  He  Trust  Co.  v.  Missouri,  A'.  Sf  T.  R. 
Co.,  36  Am.  Gr'  Eng.  R.  Cas.  259,  36  Fed.  Rep. 
221. 

Where  a  small  minority  of  stockholders 
ask  for  the  appointment  of  a  receiver, 
which  is  opposed  by  the  majority,  it  is 
proper  for  tlie  majority  to  institute  a  fore- 
closure suit  and  have  a  receiver  appointed 
so  as  to  control  the  litigation  ;  and  the  of- 
ficers of  the  company  cannot  be  charged 
with  fraud  or  collusion  because  they  file  an 
answer  admitting  the  r'  egations  of  the  bill. 
Pennsylvania  Co.  v.  _ '  ksonville,  T.  <S^  A'. 
W.  R.  Co.,  55  Fed.  Rep.  131. 

Whenever  a  debt  is  payable  by  instal- 
ments, the  failure  to  pay  any  one  of  them 
will  authorize  a  foreclosure  and  sale  of 
property  mortgaged  to  secure  the  debt. 
Goodman  v.  Cincinnati  6«»  C,  R.  Co.,  2  Dis- 
ney (Ohio)  176. 

A  railroad  company  alleged  its  insolvency, 
and  prayed  for  a  sale  of  its  property  and 
distribution  of  the  proceeds  among  its 
creditors.  A  receiver  was  appointed.  A 
mortgage  creditor  filed  a  cross-bill  asking 
foreclosure  of  two  mortgages,  on  both  of 
which  default  in  the  interest  had  been 
made,  but  the  debt  secured  by  the  second 
only  was  due.  Held,  that  both  mortgages 
were  properly  foreclosed,  though  by  its 
terms  the  first  was  not  subject  to  foreclosure 
until  default  in  payment  of  the  principal  at 
maturity.  Even  if  it  had  been  error  to 
foreclose  the  first  mortgage,  the  railroad 
company  was  not  injured  thereby,  where  it 
was  hopelessly  insolvent.  It  is  not  error 
to  direct  that  the  property  of  an  insolvent 
company,  when  offered  for  sale  to  the 
highest  bidder,  should  not  be  sold  for  less 
than  a  certain  sum.  Mcllhenny  v.  Bins,  80 
Tex.  I.  135.  W.  Rep.  655. 

A  railroad  gave  its  contractors  twenty 
year  interest-bearing  bonds  in  payment  for 
the  construction  of  the  road.  The  prin- 
cipal of  the  bonds  was  secured  by  a  ten- 
year  mortgage.  The  contractors  held  cer- 
tain other  bonds  as  collateral.  Held,  that  a 
failure  to  pay  interest  on  the  mortgage 
bonds  did  not  accelerate  the  right  of  the 
mortgagees  to  proceed  upon  the  mortgage; 
but  they  were  entitled  to  a  decree  to  sell 
the  bonds  held  as  collateral.  Great  West- 
ern R.  Co.  V.  Gait  <S-  G.  R.  Co.,  8  Grant's  Ch. 
{U.C.)2%i. 


MORTGAGES,  161-105. 


471 


161.  Adflitioiinl  Neciirity  no  waiv- 
er ot  i'i{;lit  t<>  foreel<»sc.  —  Railroad 
bondholders  do  not  waive  their  right  to 
foreclose  a  mortgage  to  secure  the  bonds 
by  taking  an  indorsement  of  such  bonds  by 
another  company  as  additional  security. 
Mii/hr  V.  l)07vs,  94  U.  S.  444. 

162.  Provision  in  inortgnge  pro- 
liibitiiif;:  tVu'CH'losure  invalid.— A  pro- 
vision in  a  railroad  niortgiige  prohibiting 
foreclosure  and  judicial  sale,  by  providing 
that  the  mode  of  sale  by  the  trustees  as  set 
forth  therein  "shall  be  exclusive  of  all 
others,"  is  an  attempt  to  provide  against  a 
remedy  in  the  ordinary  course  of  judicial 
proceedings,  and  oust  the  jurisdiction  of 
the  courts,  and  is  therefore  illegal.  Guar- 
anty Trust  &*  S.  D.  Co.  v.  Green  Cove  S.  &* 
M.  R.  Co.,  45  Am.  <S^  Eng.  A'.  Cas.  689,  139 
U.S.  137,  II  Sufi.  Ct.  Rep.  512.— Quoted 
IN  McFadden  v.  May's  Lriiiding&  E.  H.  C. 
R.  Co..  49N.  J.  Eq.  176. 

lO:}.  Cnniulativc  remedies  not  af- 
feeting  ri{;lit  to  foreclose. — A  provi- 
sion in  a  railroad  mortgage  that  the  trustees, 
after  default,  and  upon  the  request  of  the 
holders  of  $50,000  worth  of  bonds,  may  take 
possession  of  the  road  and  operate  it,  or  sell 
it,  as  they  may  tliink  best,  does  not  prevent 
their  going  into  court  and  asking  for  a  re- 
ceiver and  a  foreclosure  of  the  mortgage 
without  any  action  on  the  part  of  the  bond- 
holders. Phinizy  v.  Augusta  »S^  K.  R.  Co., 
56  Feii.  Rep.  273.  D(nv  v.  Memphis  &•  L.  R. 
R.  Co.,  17  Am.  &*  Eng.  R.  Cas.  324,  20  Fed. 
Rep.  260.  Alexander  v.  Central  R.  Co.,  3 
Dill.  (U.  .v.)  487.— Followed  in  Guaranty 
Trust  &  S.  D.  Co.  v.  Green  Cove  S  &  M.  R. 
Co.,  139  U.  S.  \y] .—Central  Trust  Co.  v. 
New  York  City  &•  N.  R.  Co.,  33  Hun  (N.  K) 
513.— Approving  Howell  v.  Western  R, 
Co.,  94  U.  S.  463.  Quoting  Chicago,  D.  & 
V.  R.  Co.  V.  Fosdick,  106  U.  S.  47. 

The  insertion  of  a  power  of  sale  in  a  mort- 
gage to  trustees  for  the  benefit  of  bondhold- 
ers does  not  supersede  the  right  of  foreclo- 
sure by  bill  in  equity.  Hall  v.  Sullivan  R. 
Co.,  Brun.  Col.  Cas.{U.  5.)  613.— Approv- 
ing Shaw  V.  Norfolk  County  R.  Co.,  5  Gray 
(Mass.)  162.— Eaton  &*  H.  R.  Co.  v.  Hunt, 
20  Ind.  457.  McAllister  v.  Plant,  54  Miss. 
106,  17  Am.  Ry.  Rep.  389.  McFadden  v. 
May's  Landing  &*  E.  H.  C.  R.  Co.,  49  N. /. 
Eq.  176,  22  Atl.  Rep.  932.— QUOTING  Hall 
V.  Sullivan  R.  Co.,  Brun.  Col.  Cas.  613; 
Guaranty  Trust  Co.  v.  Green  Cove  S.  &  M. 
R.  Co..  139  U.  S.  137. 


A  lailroad  mortgage  one  of  the  articles  of 
which  provides  for  entry  by  the  trustees,  not 
to  be  made  until  si.\  months  after  default  and 
demand  of  payment ;  anotlicr  article  provid- 
ing for  sale  by  advertisement,  containing  the 
same  limitation  as  to  the  time,  followed  by 
a  paragraph  providing  that  "  its  provision  is 
cumulative  to  the  ordinary  remedies  of  fore- 
closure in  the  courts  upon  default  being 
made  as  aforesaid,"  may  be  foreclosed  with- 
out waiting  six  months  after  default.  Mer- 
cantile Trust  Co.  V.  Missouri,  K.  <5-  T.  R, 
Co.,  36  Am.  &*  Eng.  R.  Cas.  259,  i6Fed.  Rep. 
221.— Applying  Chicago,  D.  &  V.  R.  Co.  v. 
Fosdick,  io6  U.  S.  47,  i  Sup.  Ct,  Rep.  10. — 
Morgan's  L.  6-  T.  R.  &•  S.  Co.  v.  Texas  C. 
R.  Co.,  45  Am.  (5^  Etig.  R.  Cas.  631,  137  U. 
S.  171.  II  Sup.  Ct.  Rep.  61. 

A  mortgage  of  a  railroad  to  a  trustee  to 
secure  bondholders  contained  a  provision 
that  in  case  default  should  be  made  in  pay- 
ment of  interest  six  months  after  demand 
the  whole  principal  sum  should  become  due 
and  payable,  and  the  lien  might  be  enforced. 
Held,  that  this  provision  was  cumulative 
and  did  not  interfere  with  the  right  to  fore- 
close on  breach  of  tlie  condition  without 
waiting  for  the  six  months  to  elapse  after 
demand.  Farmers'  L.  &*  T.  Co.  v.  Nova 
Scotia  C.  /?.  Co.,  24  AW.  Sc.  5^.2. 

164.  Sale  without  foreclosure  un- 
der power  iu  inort{;ag:e.— A  power  in- 
serted in  a  mortgage  authorizing  the  mort- 
gagee upon  default  of  payment  to  take 
possession  of  a  railroad  and  other  property 
connected  therewith,  and  use  or  sell  the 
same,  must  be  exerted  upon  all  the  property 
mortgaged ;  and  does  not  authorize  the 
mortgagee  to  detach  portions  thereof,  either 
from  the  possession  of  the  company  or  an 
officer  succeeding  to  its  rights,  by  a  valid 
levy  thereon.  Coe  v.  Peacock,  14  0/tio  St. 
187. 

165.  Right  to  sue  upon  the  bonds. 
— The  common  law  right  to  sue  upon  bonds 
when  mature  is  not  affected  by  a  mortgage 
to  secure  the  bonds  unless  the  nicrtgage, 
by  express  terms  or  necessary  implication, 
takes  away  the  right  to  sue.  Mannitig  v. 
Norfolk  Southern  R.  Co.,  29  Fed.  Rep.  838. 
—Distinguished  in  Guilford  v.  Minne- 
apolis, S.  St.  M.  &  A.  R.  Co.,  48  Minn.  560. 

The  pendency  of  an  action  for  the  fore- 
closure of  a  mortgage  given  to  trustees  by  a 
company  upon  its  ro„d  and  franchises  as 
security  for  an  issue  of  negotiable  coupon 
bonds,  and  containing  the    usual  powers 


f? 


^f 


47! 


MORTGAGES,  100-108. 


found  in  such  instruments, authorizing  iheir,, 
upon  default  in  the  ijaynieni  of  any  instal- 
ment of  interest  coupons,  to  declare  the 
bonds  due,  and  thereupon  to  proceed  to 
realize  ujjon  the  security  by  foreclosure  or 
otherwise,  as  prescribed  in  the  mortgage, 
imd  to  apply  the  proceeds,  but  with  no  fur- 
tiier  or  other  power  or  interest  in  respect  to 
tlie  obligations  or  their  collection,  is  no  bar 
to  an  action  in  favor  of  any  holder  or  owner 
of  any  ol  such  overdue  coupons  to  recover 
the  ainount  due  thereon  by  judgment  and 
execution.  IVfls/i  v.  First  Dh>.  St.  P.  &^ 
/'.  K.  Co.,  25  Minn.  314. — Foi.LowEU  IN 
Patterson  v.  First  Div.  St.  P.  &  P.  R.  Co., 
25  Minn.  324,  «. 

An  action  for  foreclosure  by  the  trustees 
in  such  a  case  is  in  the  nature  of  a  remedy 
in  rem.  The  effect  of  the  judgment  is  to 
determine  the  amount  of  the  mortgage  debt 
so  as  to  know  how  much  of  the  security  will 
be  required  to  satisfy  the  same.  The  pro- 
visions of  Minn.  Gen.  St.  eh.  81,  §  30,  as  to 
an  execution  for  the  balance  of  a  debt  do 
not  apply  thereto.  Welsh  v.  First  Div.  St. 
P.  ^  P.  R.  Co.,  25  Minn.  314. — Foi.ldwed 
l\  Patterson  v.  First  Div.  St.  P.  &  P.  R. 
Co.,  25  Minn.  324,  «. 

KiO.  Bill  for  .specific  performance. 
— Where  a  mortgage  covers  real  estate,  if 
the  mortgagor  fails  to  pay  the  debt  when 
due,  the  mortgagee  is  entitled  to  the  posses- 
sion of  the  property,  and  may  maintain 
ejectment  therefor  ;  but  where  the  mortgage 
embraces  also  personal  property,  such  as 
rolling  stock,  the  proper  remedy  of  the 
mortgagee  is  by  a  bill  in  equity  for  specific 
enforcement  of  the  mortgagee's  rights.  Dow 
V.  Memphis  &>  L.  R.K.  Co.,  17  Am.  &o  Eng. 
R.  Cas.  324,  20  Fed.  Rep.  R.  260. 

107.  Eii(;lisli  and  Caiiadinn  rcnie- 
die.s. — Where  a  railway  act  divides  the 
undertaking  into  three  parts  with  separate 
c.ipital,  and  provides  that  no  mortgagee 
shall  have  any  right  or  remedy  against  the 
company  or  its  undertaking  except  only 
with  respect  to  such  part  as  was  included  in 
his  mortgage,  and  that  the  liabilities  of  the 
company  to  its  several  mortgagees  shall  be 
limited  accordingly,  this  does  not  prohibit 
an  action  being  brought  against  the  com- 
pany generally  by  a  mortgagee  to  recover 
the  principal  due,  but  only  applies  to  the 
risrhts  and  remedies  flowing  from  execution. 
Coleman  v.  Llanelly  R.  &•  D.  Co..  17  Z.  T. 
86.  15  IF.  R.  1 01 4. 

A  mortgagee  or  judgment  creditor  of  a 


r:iilway  company  is  not  entitled  to  enforce 
payment  of  his  demand  by  sale  or  fore- 
closure of  the  railway  ;  he  is  only  entitled 
to  have  a  manager  or  receiver  of  the  under- 
taking appointed.  Gait  v.  Erie  &^  A'.  R. 
Co.,  14  Grant's  Ch.  (U.  C.)  499. 

A  railway  company  mortgaged  land  to 
secure  purchase  money,  subsequently  laid 
down  rails  upon  the  mortgaged  land,  and 
worked  the  railway.  Helti,  that  the  mort- 
gagees were  entitled  to  maintain  ejectment, 
and  th.at  such  mortgage  was  not  ultra  Tires  ; 
that  tlie  public  rights  cannot  stand  in  the 
way  of  mortgagees  claiming  by  ejectment ; 
but  that  where  land  is  taken  under  the  com- 
pulsory clauses,  flie  compensation  must  be 
worked  out  in  the  manner  prescribed  by  the 
statute.  Gait  v.  Erie  <S-«  N.  R.  Co.,  19  I/. 
C.  C.  P.  357.— Distinguishing  Pell  v. 
Northampton  &  B.  J.  R.  Co.,  L.  R.  2  Ch. 
100.  —Approved  in  Slater  v.  Canada  C.  R. 
Co.,  25  Grant's  Ch.  (U.  C.)  363. 

2.  Jurisdiction, 

108.  In  general. — In  a  suit  to  recover 
interest  on  bonds  the  amount  of  the  inter- 
est determines  the  question  of  jurisdiction  ; 
and  this  rule  applies  to  a  proceeding  to 
collect  the  interest  l)y  foreclosure  proceed- 
ings, notwithstanding  the  fact  that  the  pro- 
ceeding may  involve  the  sale  of  property, 
and  the  ascertaining  of  the  rights  of  other 
bondholders,  which  might  involve  sums 
much  above  the  amount  necessary  to  give 
jurisdiction.  Ilriicex.  Manchester  &' h'.  R. 
Co.,  25  Am.  &^  Enjr.  R.  Cas,  76,  117  U.  S. 
514,  6  Sup.  Ct.  Rep.  849. 

Pennsylvania  Act  of  April  11,  1862,  giv- 
ing the  supreme  court  the  powers  of  a  court 
of  chancery  in  corporation  mortgages,  does 
not  violate  the  constitution  of  the  United 
States  as  to  a  mortgage  dated  before  its 
passage  in  which  the  remedy  provided  for 
the  payment  of  interest  is  permissive,  not 
exclusive.  The  act  is  merely  remedial  for 
a  breach  of  contract,  and  a  party  in  default 
cannot  complain  that  an  additional  remedy 
is  given  for  his  breach  of  contract.  Mc El- 
rath  v.  Pittsburg  6^  S.  R.  Co.,  55  /'a.  St. 
189. 

The  legislature  after  the  decree  of  sale 
in  equity  passed  a  law  to  carry  the  decree 
into  effect,  //eld.  that  this  cured  any  de- 
fect in  the  jurisdiction  of  the  court.  Young- 
man  v.  Elmira  iS^*  W,  A'.  Co.,  65  Pa,  St. 
278. 


MORTGAGES,  100-171. 


473 


; 


109.  As  depciideiit  upon  iocality 
— Suits  in  state  courts.*— A  court  of 
chancery  has  jurisdiction  of  q  bill  for  the 
foreclosure  of  a  mortgage,  although  embra- 
cing property  out  of  the  state  as  well  as 
within  it.  Mcati  v.  A'ew  Vor/:,  H.  &*  A'.  K. 
Co.,  45  Cotin.  199,  17  Am.  Ky.  Rep.  367. 

A  foreclosure  of  a  njortgiige  of  a  tele- 
graph line  which  extends  through  more 
tiian  one  state,  in  a  state  court,  has  no  effect 
beyond  the  state  where  the  foreclosure  is 
had.  Farmers'  L.  &*  T.  Co.  v.  Postal  Tel. 
Co.,  55  Conn.  334,  II  Atl.  Hep.  184.— Fol- 
lowed IN  Lynde  v.  Columbus,  C.  &  I.  C. 
R.  Co.,  57  Fed.  Rep.  993. 

Foreclosure  proceedings  in  New  York  are 
ineffectual  to  pass  title  to  property  in  Penn- 
sylvania. Pittsburjr/t  &*  S.  L.  R.  Co.  v. 
Rothschild,  (Pa.)  26  Am.  6-  E>tff.  R.  Cas.  50, 
4  .  ///.  Rep.  385. 

A  shareholder  of  a  consolidated  company 
who  has  accepted  and  disposed  of  bonds 
illegally  issued,  although  he  might  be  pre- 
cluded from  questioning  the  validity  of  the 
bonds  and  mortgage,  may  yet  assert  want 
of  title  in  the  purchaser  of  the  corporate 
property  situate  in  Pennsylvania  and  sold 
under  foreclosure  proceedings  in  New  York. 
Pittsburgh  &*  S.  L.  R.  Co.  v.  Rothschild, 
(Pa.)  26  Am.  &>  Eng.  R.  Cas.  50,  4  Atl.  Rep, 

385. 

Where  a  mortgaged  railroad  is  situate  in 
two  states,  a  court  of  one  state  in  foreclos- 
ing the  mortgage  cannot  merge  into  its 
judgment  the  mortgage  lien  existing  in  the 
other  state.  It  may  act  upon  the  company 
so  as  to  compel  a  conveyance  of  the  entire 
property,  or  a  release  of  the  entire  lien,  but 
if  it  does  not  do  so,  the  foreclosure  is  not  a 
bar  to  another  suit  by  the  same  parties  in 
the  other  state  to  foreclose  there.  Lynde 
V.  Columbus,  C.  &•  I.  C.  R.  Co.,  57  Fed.  Rep. 
993.— Distinguishing  Muller  v.  Dows,  94 
U.  S.  444.  Following  Farmers'  L.  &  T. 
Co.  V.  Postal  Tel.  Co.,  55  Conn.  334,  11  Atl. 
Rep.  184. 

Where  actions  to  foreclose  two  or  more 
mortgages  on  a  railroad  are  instituted  in 
one  jrdicial  district,  and  all  the  relief  which 
the  parties  are  entitled  to  may  be  obtained 
therein,  it  is  improper  to  allow  another  ac- 
tion, in  another  district,  which  seeks  sub- 
stantially the  same  relief.  Whitney  v.  Ste- 
vens, 16  How.  Pr.  {N.  Y.)  369. 

*  Effect  of  foreclosure  on  properly  in  other 
state,  see  note,  26  Am.  &  Eng.  R.  Cas.  65.  See 
also  57  /(/.  206,  abstr. 


170.  suits  in  federal  courts.— 

A  United  States  circuit  court,  silting  as  a 
court  of  equity,  has  jurisdiction  to  foreclose 
a  railroad  mortgage  yiven  to  secure  its 
bonds.  Hell  v.  Chicago,  St.  L.  Or'  i\.  O.  R. 
Co.,  34  La.  Ann.  785. 

Where  a  federal  court  has  jurisdiction  of 
propcrt_',  and  has  taken  possession  by  the 
ap[)ointinent  of  a  receiver,  it  thereby  ac- 
quires jurisdiction  of  a  subsequent  fore- 
closure suit  without  reference  to  the  citizen- 
ship of  the  parties.  Carey  v.  Houston  &^  T. 
C.  R.  Co.,  52  Fed.  Rep.  671.— Following 
Morgan's  L.  &  T.  R.  &  S.  Co.  v.  Texas 
C.  R.  Co.,  137  U.  S.  171,  II  Sup.  Ct.  Rep. 
61. 

V/here  a  railroad  lies  partly  in  one  state 
and  partly  in  another,  in  foreclosing  a  mort- 
gage thereon  a  court  of  equity  iflay  decree 
a  sale  of  the  entire  road,  and  direct  a  deed 
to  the  purchaser.  Muller  v.  Dows,  94  U. 
S.  444. — Distinguished  in  Lynde  v.  Co- 
lumbus, C.  «&  I.  C.  R.  Co.,  57  Fed.  Rep.  993. 
— Randolph  v.  Wilmington  &*  R.  R.  Co.,  1 1 
Phila.  {Pa.)  502. 

So  held,  where  the  road  was  one  indivisi- 
ble and  inseparable  piece  of  property  which 
could  not  be  divided  without  affecting  its 
value.  Wilmer  v.  Atlanta  &•  R.  A.  L.  R. 
Co.,  2  Woods  {U.  S.)  447. 

The  circuit  court  of  the  southern  dis- 
trict of  New  York  has  jurisdiction  of  a  suit 
to  foreclose  a  railroad  mortgage  executed 
upon  its  right  of  way  granted  to  it  by 
congress,  together  with  its  improvements 
thereon,  through  the  United  States  reser- 
vation at  West  Point  in  the  state  of  New 
York.  Beekman  v.  Hudson  River  W.  S.  R. 
Co.,  36  Am.  <S>»  Eng.  R.  Cas.   321,  35  Fed, 

Rep.  3. 

171.  As  affected  by  consolidation. 

— Where  several  railroads  are  consolidated 
and  reorganized  under  a  new  name,  and 
the  bondholders  of  the  several  lines  surren- 
der their  bonds  and  take  in  lieu  thereof 
bonds  of  the  consolidated  company,  they 
thereby  surrender  the  mortgage  lien  on  the 
several  lines,  and  must  look  to  the  mort- 
gage on  the  consolidated  road  alone  for 
security  of  their  bonds.  Union  Trust  Co. 
v.  Illinois  Midland  R.  Co.,  2$  Am.  &*  Eng. 
R.Cas.  560,  117  U.  S.  434,6  Sup.  Ct.  Rep. 
809. 

Where  three  different  companies  existing 
in  different  states  consolidate  their  roads, 
and  execute  a  mortgage  on  the  consoli- 
dated property,  in  foreclosing  the  mortgage 


m 


^^^)^.Viih»v^.i^^U'^ 


474 


MORTGAGES,  172-174. 


a  court  of  equity  may  direct  a  sali;  "(  ti.o 
entire  property.  Separate  suits  in  each 
state  are  not  necessary.  lUiuklnnn  v. 
Selma,  M.  &-  M.  A'.  Co.,  2  Fl/pp.  ( U.  S.)  525. 

And  tlie  jurisdiction  of  the  court  over 
tlie  entire  property  may  not  he  ousted  by 
proceedings  in  one  of  llic  states  to  subject 
tile  property  to  other  claims  ;  and  the  eflect 
of  the  foreclosure  decree  cannot  be  avoided 
by  a  sale  of  part  of  the  property  under 
subsequent  proceedings  in  another  state. 
l-llackhiirn  v.  Selma,  M.  Sr*  M.  K.  Co.,  2 
/■///)/>.  (d/.i.)  525. 

A  mortgage  sought  to  be  foreclosed  con- 
tained a  covenant  on  the  part  of  the  com- 
pany to  pay  interest  on  mortgages  upon 
different  divisions  of  the  road  made  by 
separate  :ompanies  before  a  consolidation. 
Plaintiff,  who  was  a  large  bondholder,  had. 
not  paid  anything  for  these  division  mort- 
gages, and  the  holders  were  not  parties  to 
the  suit.  Held,  that  no  decree  of  fore- 
closure could  be  granted  for  a  default  in  the 
payment  of  interest  on  the  divisional  mort- 
gages. (Treat,  J.,  dissenting.)  Union  Trust 
Co.  V.  St.  Louis,  I.  Af.  &"  S.  A'.  Co.,  5  Dill. 
{U.  S.)  I. 

172.  Conflict  of  jurisdiction,  gen- 
erally.— Where  suit  is  brought  to  foreclose 
a  junior  mortgage,  and  the  court  has  taken 
possession  of  the  property  by  appointing  a 
receiver,  senior  mortgagees  cannot  gain 
possession  while  the  suit  is  pending  by 
bringing  a  suit  on  their  mortgage.  Young 
\.  Montgomery  fi"*  E.  ft.  Co.,  2  Woods  {IJ. 
S.)  606. 

Wherb  a  railroad  extending  through  three 
states  is  mortgaged  to  the  same  trustees, 
and  a  foreclosure  proceeding  is  instituted 
in  each  state,  and  the  same  person  is  ap- 
pointed receiver  in  each  state,  an  applica- 
tion in  one  of  the  states  by  a  creditor  of  the 
company  to  obtain  relief  as  against  the  re- 
ceiver cannot  be  defended  on  the  ground 
that  tlie  principal  suit  is  in  one  of  the  other 
states,  and  that  relief  can  only  be  properly 
had  there.  The  proceeding  in  each  state  is 
independent  so  far  as  relates  to  the  prop- 
erty situate  within  the  state.  In  re  United 
States  Rolling  Stock  Co.,  55  H<m).  Pr.  (N. 
V.)  286. 

After  the  foregoing  decision  was  an- 
nounced (55  How.  Pr.  286)  a  motion  was 
made  to  amend  the  complaint  and  order 
appointing  a  receiver  so  as  to  make  the 
action  in  one  state  merely  ancillary  to  that 
pending  in  another  state,  which  should  bere- 


gawlcd  as  the  principal  suit,  field,  that  the 
motion  might  be  granted,  provided  the 
issues  already  made  and  the  court's  power 
effectually  to  dispose  of  them  were  not 
changed.  But  under  the  facts  of  the  case 
the  court  refused  to  modify  its  order  aj)- 
pointing  the  receiver.  Taylor  v.  Atlantic 
6-  G.  jr.  A'.  Co.,  57  //,w.  j'r.  {A\  V.)  9. 

A  mortgaged  railroad  was  situate  in  two 
states,  and  after  a  bill  was  filed  in  a  United 
States  circuit  court  to  foreclose  in  one 
state,  and  a  receiver  was  appointed,  com- 
plainant filed  a  bill  in  a  United  States  cir- 
cuit court  for  the  other  state,  which  he 
termed  an  "  ancillary  bill."  Held,  that  the 
bill  could  not  be  maintained.  If  the  aid  of 
the  court  in  the  second  state  was  desired,  it 
must  be  invoked  by  an  independent  suit. 
Mercantile  Trust  Co.  v.  Kanawha  &-  O.  A. 
Co.,  39  Fed.  Rep.  337. 

173.  Elfect,  in  stntc  courts,  of  pre- 
vious proceedings  in  federal  courts. 
— The  rights  of  parties  who  have  obtained 
judgments  in  state  courts  establishing  statu- 
tory liens  on  a  railroad,  and  who  are  not 
parties  to  a  foreclosure  proceeding  in  a  fed- 
eral court,  are  not  affected  by  the  fore- 
closure and  sale  in  such  federal  court. 
Blair  v.  Walker,  26  Fed.  Rep.  73. — Distin- 
guishing Blair  v.  St.  Louis,  H.  &  K.  R. 
Co.,  25  Fed.  Rep.  232. 

Where  a  federal  court  has  jurisdiction  of 
the  property  of  a  mortgaged  railroad,  and 
has  all  the  parties  in  interest  before  it,  a 
decree  of  foreclosure  entered  therein  can- 
not be  affected  by  any  subsequent  action  in 
a  state  court.  Such  state  court  is  entirely 
without  jurisdiction  or  power  in  the  matter. 
Gernsheim  v.  Olcott,  7  N.  Y.  Supp.  872 ;  re- 
versed  on  another  point  in  31  N.  Y.  S.  R. 
321,  10  N.  Y.  Supp.  438. 

A  state  court  has  no  jurisdiction  to  fore- 
close a  railroad  mortgage  or  to  set  aside  a 
sale  made  by  the  niortgage  trustee,  under 
power  conferred  by  the  mortgage,  where 
the  property  at  the  commencement  of  the 
action  is  in  the  hands  of  a  receiver  ap- 
pointer*  by  a  federal  court  of  competent 
jurisdiction,  and  this  is  so  whether  the  lien 
which  the  receiver  was  appointed  to  enforce 
was  subsequent  to  the  one  sought  to  be  en- 
forced in  the  state  court  or  not.  Milwau- 
kee &^  St.  P.  R.  Co.  V.  Milwaukee  Or'  M.  R. 
Co.,  20  Wis.  165. 

174.  Effect,  in  federal  courts,  of 
previous  proceedings  in  state  courts. 
— Where  a  railroad  mortgage  is  foreclosed 


■10' 


MORTGAGES,  175. 


475 


he 

lie 
er 
ot 
ise 


in  u  state  court  having  jurisdictUjii  of  tlic 
persons  and  the  property,  a  stockholder 
cannot  have  such  proceeding  reviewed  in  a 
collateral  proceeding  in  a  federal  court  on  a 
charge  that  it  was  obtained  by  fraud.  Gra- 
luim  V.  Boston,  II.  &*  E.  R,  Co.,  2^  Am.  &* 
Eng.  A'.  Cas.  53,  118  i/.  S.  161.  6  Sup.  Ct. 
I\ip.  1009. 

The  fact  that  a  suit  by  trustees  to  fore- 
close a  railroad  mortgage  is  pending  in  the 
state  courts  will  not  bar  a  similar  action  by 
a  second  bondholder  in  the  federal  court. 
Peckman  v.  Hudson  River  W.  S.  A'.  Co.,  36 
Am.  &»  Eiig.  R.  Cas.  321,  35  Fed.  Rep.  3.— 
Following  Stanton  v.  Embrey,  93  U.  S. 
548;  Mutual  Life  Ins.  Co.  v.  Brune,  96  U.  S. 
588  ;  Weaver  "a  Field,  16  Fed.  Rep.  22. 

Where  the  trustees  of  a  railroad  mort- 
gage, given  upon  a  written  request  of  the 
holders  of  a  majority  in  amount  of  out- 
standing bonds  made  in  pursuance  of  a 
provision  contained  in  the  mortgage,  file  a 
bili  to  foreclose  in  the  state  courts,  which  is 
dismissed  for  want  of  jurisdiction,  from 
which  dismissal  they  appeal,  and  before  the 
determination  of  the  appeal  they  are  urged 
by  a  bondholder  to  renew  the  litigation  in 
the  federal  courts,  but  refuse  to  do  so,  such 
bondholder  may  properly  bring  a  suit, 
either  himself  or  in  his  own  name,  to  the 
extent  of  accrued  and  unpaid  interest.  Beek- 
mau  V.  Hudson  River  IV.  S.  R.  Co.,  36  Am, 
&*  Etig.  R.  Cas.  32 1,  35  Fed.  Rep.  3. 

Holders  of  some  of  the  mortgage  bonds 
of  a  railroad  brought  a  suit  in  equity  in  a 
circuit  court  of  the  United  States  against 
the  corporation,  and  three  individual  de- 
fendants who  were  trustees  in  the  mortgage, 
to  foreclose  the  niortga);e  and  remove  the 
trustees.  Tt)  the  foreclosure  portion  of  the 
bill  the  corporation  pleaded  the  pendency 
of  a  foreclosure  suit  in  a  state  court,  but  as 
that  suit  was  not  between  the  same  parties, 
or  those  fully  authorized  to  represent  the 
same  parties,  in  the  same  behalf  and  for  the 
same  relief,  the  plea  was  overruled.  To  the 
part  of  the  bill  relating  to  the  removal  of 
the  trustees  they  pleaded  that  what  was  al- 
leged against  them  in  the  bill  as  ground  for 
their  removal  had  been  done  by  them,  but 
in  other  relations  to  the  property  and  in 
other  capacities,  under  the  direction  of  a 
state  court.  The  plea  was  held  to  be  bad. 
The  trustees  demurred  to  the  whole  bill,  on 
the  ground  that  to  proceed  with  it  would 
interfere  with  the  possession  and  control  of 
tlie  mortgaged  property  by  the  state  court. 


and  be  a  contempt  of  that  court.  Held,  that, 
as  neither  the  mortgagors  nor  any  one  claim- 
ing under  them  were  in  possession,  such 
would  not  be  the  effect  of  proceeding  with 
the  suit  for  foreclosure  merely,  and  that  tiie 
demurrer  must  be  overruled.  Brooks  v. 
Vermont  C.  R.  Co.,  14  Blatchf.  (U.  S.)  463. 
—  EXPLAINKIJ  IN  Mercantile  Trust  Co.  v, 
Portland  &  O.  R.  Co.,  10  Fed.  Rep.  604. 

A  trust  C(jmpany  of  New  York  filed  a 
bill  in  a  federal  court  in  Texas  to  foreclose 
a  mortgage  on  a  railroad  situate  in  that 
state,  and  also  sought  to  make  certain  citi- 
zens of  Texas  parties,  so  as  to  require  them 
to  assert  their  claims  in  the  federal  court 
instead  of  in  the  state  court.  While  the 
bill  was  pending  the  road  was  sold  under  a 
decree  rendered  in  a  stale  court  in  favor  of 
a  citizen  of  the  state,  but  who  was  a  party 
to  the  bill  in  the  federal  court,  and  the  road 
was  purchased  by  citizens  of  New  York, 
who  consented  to  the  appointment  of  a  re- 
ceiver in  the  federal  court.  Held,  that  citi- 
zens of  New  York  who  had  acquired  an  in- 
terest in  the  road  after  the  jurisdiction  of 
the  federal  court  had  attaclied,  and  being 
the  real  parties  in  interest  in  the  sale,  were 
entitled  to  intervene  and  set  up  their  rights. 
Farmers'  L.  <&*  T.  Co.  v.  Texas  Western  R. 
Co.,  32  Fed.  Rep.  359. 

A  receiver  appointed  in  a  foreclosure  suit 
included  in  his  inventory  of  property  cer- 
tain notes  executed  by  a  land  company  and 
secured  by  a  mortgage,  which  were  treated  as 
a  part  of  the  mortgaged  property  at  the 
time  a  consent  decree  was  entered  direct- 
ing a  sale  of  the  company's  property.  But 
it  seemed,  as  a  matter  of  fact,  that  such 
notes  were  not  included  in  the  mortgage 
sought  to  be  foreclosed.  Held,  that  the 
court  would  not  release  its  control  over  the 
notes  that  they  might  be  subjected  to  proc- 
ess at  the  suit  of  certain  creditors  in  a  state 
court;  nor  would  the  court  award  such 
creditors  a  prior  lien  thereon  by  reason  of 
their  proceeding  in  the  state  court.  The 
federal  court,  having  before  it  all  the  parties 
in  interest,  would  proceed  to  decide  any  con- 
flicting claims  thereto.  Farmers'  L.  &*  T. 
Co.  v.  San  Diego  Street-Car  Co.,  49  Fed.  Rep. 
188. 

3.  Right  of  Action  and  Defenses, 
a.  Who  may  Sue  or  be  Joined  as  Plaintiffs. 

1 75.  RiRlit  of  niortga{;ree  or  triis- 

tet  to  sue.— The  mortgagees  of  a  railroad 


I 

I 


\H 


470 


MORTGAGES,  170,  177. 


in  foreclosure  proceedings  represent  the 
bonflliolders,  and  liic  latter  are  neither  nee- 
ess.iry  nor  |)ioper  parties  to  tlie  action,  and 
any  cjucstion  as  to  tlic  amount  for  wiiich 
the  security  would  be  available  must  be 
made  with  the  mortgagees,  i)y  an  issue  in 
llie  action.  Coi'  v.  Co/umbiis,  J',  ijr*  I.  A'.  Co., 
lo  i>///i>  Sf.  372. 

.•\  trustee  to  whom  a  mortgage  is  made 
for  the  benelit  of  bondholders,  and  who  has 
no  interest  except  a.i  trustee,  is  not  author- 
ized by  Ky.  Code,  §  37,  to  bring  an  action 
in  iiis  own  name  for  its  foreclosure;  but 
where  the  mortgage  makes  it  his  duty  to 
sue  he  may  do  so  without  making  the  bond- 
holders parties  upon  showing  that  they  are 
numerous,  and  that  it  is  impracticable  to 
bring  them  before  the  court  in  a  reasonable 
time.  luirdstown  &•  L.  A'.  Co.  v.  Alctcalfe,  4 
Mete.  (Ky.)  199. 

1  70.  When  ItoiidlioIflcrH  iiiny  Hue, 
t{«'iu' rally.  — Wliere  mortgage  trustees  first 
file  a  bill  for  a  strict  foreclosure  and  for 
general  relief,  but  subsequently  file  a  sup- 
plemental bill  asking  that  a  certain  plan  of 
reorganization  be  carried  out,  and  a  certain 
bondholder  be  restrained  from  interfering 
witli  the  plan,  such  bondholder  can  only  be 
heard  in  the  pendinp  suit,  and  cannot  prose- 
cute an  independent  bill  seeking  a  foreclo- 
sure and  a  removal  of  the  trustees.  Stern 
V.  Wisconsin  C.  A'.  Co.,  i  Fed.  Kep.  555. 

The  fact  that  a  mortgage  trustee  is  trus- 
tee in  twelve  different  mortgages  executed 
by  different  companies  existing  under  dif- 
ferent charters,  but  the  roads  of  each  are  all 
operated  under  one  system,  is  not  sutBcient 
ground  for  allowing  a  committee  represent- 
ing the  bondholders  to  become  the  pUintiff 
in  a  foreclosure  suit,  in  the  absence  of  any- 
thing tending  to  show  that  the  trustee  has 
not  properly  protected  the  interests  of  all,  or 
that  there  is  any  conflict  of  interest  be- 
tween the  several  parties  that  the  trustee 
rt'i^resents.  Clyde  v.  Aic/tmond  &•  D.  R. 
Co.,  55  Fed.  Rep.  445. 

.\  provision  in  a  railroad  mortgage  to 
secure  bonds  to  the  effect  "that  the  princi- 
pal sum  secured  by  said  mortgage  shall  be- 
come due  in  case  the  interest  on  the  bonds 
remains  unpi.id  for  four  months  "  does  not 
give  the  several  bondholders  a  right  of  ac- 
tion for  the  principal  of  their  bonds  upon  a 
failure  to  pay  interest,  but  only  gives  the 
mortgage  trustee  a  right  of  foreclosure  for 
such  failure.  Mulloryx.  West  Shore  H.  R.K. 
Co.,iJ.&-S.  (A'.   }'.)  174. 


177.  bccniiNo  trust oos  refuse 

to  HUe. —  Bondholders  themselves  are  e  ni- 
tled  to  prosecute  a  suit  to  foreclose  a  mort- 
gage where  the  mortgage  trustees  refuse  to 
institute  a  proceeding.  Owens  v,  Ohio  C. 
R.  Co.,  20  Fed.  Rep.  10. 

And  such  proceeding  cannot  be  irrested 
by  a  tender  of  interest  due,  unless  it  includes 
all  the  interest  on  bonds  the  holders  of 
which  have  not  agreed  to  postpone  their 
claims.  Van  lientlniysen  v.  Central  N, 
F.  6-  //'.  R.  Co.,  45  a:  V.  S.  R.  16.  63  ////« 
b27,  17  A'.   1'.  Supp.  709. 

The  holder  of  any  one  of  a  series  of  bonds 
secured  by  a  mortgage  made  to  trustees 
may,  on  refusal  of  the  trustees  so  to  do, 
maintain  a  suit  for  the  foreclosure  of  the 
mortgage  for  default  in  the  payment  of  in- 
terest. McFadden  v.  May's  Landini;  <S>»  F. 
H.  C.  R.  Co.,  49  A'.  /.  Fq.  176,  22  .,-///.  Rep, 
932.— yuoTiNu  Chicago,  D.  &  V.  K.  Co.  v. 
Fosdick,  106  U.  S.  ^J.—Seibert  v.  Minneap- 
olis <S^  St.  L.  R.  Co.,  57  Am.  &^  Fng.  R.  Cas. 
208,  52  Minn.  148,  53  A'.   W.  Rep.  11 34. 

Such  suit  ordinarily  should  be  brought  by 
the  bondholder  in  behalf  of  himself  and  all 
other  bondholders,  but  an  averment  to  this 
effect  is  unnecessary  when  default  has  been 
made  only  on  the  bonds  held  by  complain- 
ant. McFadden  v.  May's  Landing  &•  F,  H. 
C.  R.  Co.,  49  N.J,  F<f.  176,  22  Atl,  Rep,  932. 

rJut  it  is  competent  for  the  bondholders 
to  agree  among  themselves  upon  what  con- 
ditions this  right  may  be  exercised  by  an 
individual  bondholder;  and  a  provision  in 
the  mortgage  that  no  proceedings  in  law  or 
equity  shall  be  taken  by  any  bondholder 
secured  thereby  to  foreclose  the  equity  of 
redemption,  independently  of  the  trustee, 
until  after  the  refusal  of  the  trustee  to  com- 
ply with  a  requisition  first  made  upon  him 
by  the  holders  of  a  certain  percentage  of  the 
bonds  secured  by  such  mortgage,  is  reason- 
able and  valid.  Seibert  v.  Minneapolis  <S- 
St.  L.  R.  Co.,  57  Am,  &•  Fng.  R.  Cas.  208, 
52  Minn.  148,  53  A'.  W,  Rep.  11 34 

It  is  not  the  purpose  or  effect  of  such  a 
stipulation  to  divest  the  bondholders  of  their 
right  to  judicial  remedies,  or  to  oust  the 
courts  of  their  jurisdiction,  but  it  is  merely 
the  imposition  of  certain  conditions  upon 
themselves  in  respect  to  the  exercise  of  that 
right.  Seibert  v.  Minneapolis  <S-  St,  L.  R, 
Co.,  57  Am.&^Eng.R.  Cas,  208,  52  J//««. 
148,  53  A^.  W.  Rep.  1 1 34. 

Tile  light  of  bondholders  to  institute  such 
proceeding  does  not  depend  upon  whether 


MORTGAGLS,   IVo-lSO. 


1"*' 

4( 


the  road  is  properly  nianamd  or  not.  la 
case  of  default  they  are  entitled  to  u  receiver, 
even  if  the  management  is  honest  and  capa- 
ble. I'tiu  licntliuyu'H  v.  Ccntial  A'.  E.  is^ 
W.  R.  Co.,  45  A'.  )■.  S.A\  i6,  63  J/iin  O27.  17 
iV.  r.  Sufip.  709, 

Where  trustees  under  a  niortfja^'e  of  a 
railroad,  of  whom  it  is  alle^'ed  in  the  bill  for 
a  foreclosure  that  they  had  refused  to  pro- 
ceed to  realize  on  the  security,  apply  to 
come  in  and  have  been  admitted  as  com- 
plainants in  the  bill,  they  must  control  the 
proceeding.  Kicluirds  v.  Chesapeake  &'  O. 
a:  Co.,  I  ^U'  '.'es  (U.  S.)  28. 

In  a  bill  nied  by  ciie  holder  of  bonds 
ffoured  by  an  income  mortf{a(,'e  made  by  a 
railroad  corporation  to  eiif(jrce  his  rights, 
the  trustee  under  the  mortgaj;e  was  made  a 
defendant,  on  the  allegation  that  he  had  re- 
fused to  bring  the  suit.  The  corporation 
denied  this  allegation  and  it  was  not  proved. 
The  trustee  did  not  apficar  and  was  not 
served  with  process,  and  it  was  not  alleged 
or  proved  that  he  was  beyond  the  jurisdic- 
tion of  the  court.  Held,  that  the  bill  must  be 
dismissed.  Morgan  v.  Kansas  Pac.  R.  Co., 
21  lUatchf.  {U.  S.)  134,  15  Fed.  Rep.  55.— 
Disi  INGUISHEU  IN  Spies  V.  Chicag(j  & 
K.  I.  K.  Co.,  24  RIatchf.  280;  Spies  v. 
Chicago  &  E.  I.  R.  Co.,  30  Fed.  Rep.  397. 
Foi.i.owKi)  IN  Barry  f.  Missouri,  K.  &  T.  R. 
Co.,  22  Fed.  Rep.  631. 

178. where      trustees     have 

died.— Where  the  trustees  of  a  railroad 
mortgage  or  deed  of  trust  are  dead,  a  bill  of 
foreclosure  and  sale  may  be  fded  against  the 
company  by  one  or  more  of  the  bondholders 
on  behalf  of  themselves  and  all  other  bond- 
holders secured  by  the  same  mortgage;  or 
if  there  be  several  successive  mortgages,  the 
trustees  of  which  are  dead,  and  the  con>- 
plainunts  hold  bonds  secured  by  each  mort- 
gage, the  bill  may  be  filed  on  behalf  of 
themselves  and  all  of  the  bondholders  under 
each  mortgage.  Galveston,  H.  iSw  H.  R.  Co. 
V.  Cowdrey,  11  Wall.  (U.  S.)  459.— Fol- 
lowed IN  Mercantile  Trust  Co.  v.  Missouri, 
K.  &  T.  R.  Co.,  36  Am.  &  Eng.  R.  Cas.  259. 
36  Fed.  Rep.  221. 

In  such  case  no  injustice  could  be  done, 
because  any  bondholder  not  made  a  party 
would  have  a  right  to  intervene  and  contest 
the  priority  of  a  mortgage  earlier  in  date 
than  that  by  which  his  bonds  are  secured, 
or  the  validity  of  bonds  held  by  any  other 
bondholder.  Galveston,  H.  &•  H.  R.  Co.  v. 
Cowdrey,  11  Wall.  ((/.  S.)  459. 


t  V'.;.  i'»(i;i(.[io!il<'rs*  coiisciit  or  rr- 
«|U«'st  that  trii.st«>«'s  sih'.— A  raihijad 
niorti;agc  piovidcil  that  the  trustees,  ujjon 
the  writti-n  request  of  tiie  IkjIiIlts  of  a  ma- 
jority of  the  bonds  tiien  outstanding,  shall 
proceed  to  collect.  J/eAi,  that  this  niatle  it 
necessary  to  prove  that  a  bill  tiled  tocollect 
the  entire  debt  was  upon  the  written  request 
of  llie  holders  01  ..  Majority  of  the  outstand- 
ing bonds.  CA/'ciy  >,  D.  &^  I'.  R,  Co.  v. 
J-'osi{ic/,\  7  -•/;;/.  l'^  /'-"Ji-  ^'''  ^''*'-  4-7-  'o^  ^  • 
.S'.  47,  I  .V//,-^  Lt.  Rep.  10.  — DisriNGUisHKl) 
IN  Whee'  '  ■  iglit  V.  St.  Loiii,,  N.  O.  &  O. 
Canal  Transp.  Co.,  i;6  Wd.  Rep.  164.  Rk- 
VIKWKIJ  IN  Farnici  '  L.  &  T.  Co.  v.  Chicago 
&  .\.  R.  Co.,  ?.\  Am.  &  Kng.  R.  Cas.  \CC.  27 
Fed.  Rep.  146.  — Sec  also  Barnei  v.  C/iuai^o, 
M.  ^S^•  St.  /'.  R.  Co..  30  Am.  &*  Eiitf. ' R. 
Cas.  453,  122  U.  S.  I,  7  .S'///>.  Ct.  Rep.  1043. 

180.  tluiiKler  ut'  boiidiiulderH  a.s 
plaliitlH's.— Where  a  compai%  executes  a 
mortgage  directly  to  its  bondholders,  who 
are  named,  and  their  several  interests  speci- 
fied, and  the  adequacy  of  the  security  is 
doubtful,  all  of  the  bondholders  should  be 
made  parties  to  a  foreclosure  suit,  so  tiiat 
each  may  be  present  to  defend  his  own 
claims,  and,  if  necessary,  attack  others. 
Nashville  &•  1).  R.  Co.  v.  Orr,  18  Wall. 
(U.  S.)  471,  6  Aw.  Ry.  Rep.  396.— Distin- 
guished IN  Wheelwright  v.  St.  Louis,  N. 
O.  &  O.  Canal  Transp.  Co.,  56  Fed.  Rep. 
164.  Quoted  in  New  Orleans  Pac.  R.  Co. 
7/.  Parker,  143  U.  S.  42,  12  Sup.  Ct.  Rep. 

364. 

Where  mortgage  trustees  have  acquired 
interests  adverse  to  the  bondholders,  or 
stand  in  a  hostile  position  to  tliem,  the 
bondholders  may  bring  a  suit  to  foreclose, 
and  make  the  trustees  defendants.  WeM 
V.  Vermont  C.  R.  Co.,  20  Blatchf.  (U.  S.) 
218,9  Fed.  Rep.  793. 

Where  bondholders  of  one  state  bring  a 
foreclosure  suit  in  a  federal  court  against  a 
corporation  of  another  state,  and  the  juris- 
diction of  the  court  depends  upon  citizen- 
ship, other  bondholders  who  are  citizens  of 
the  state  where  the  railroad  is  situate,  and 
where  the  suit  is  brought,  cannot  be  made 
plaintifls.  Jackson  v.  Burlington  &*  L.  R. 
Co.,  29  Fed.  Rep.  474,  24  Blatchf.  (U.  S.) 
194. — Following  Chicago,  D.  &.  V.  R. 
Co.  v.  Fosdick,  106  U.  S.  47,  i  Sup.  Ct. 
Rep.  10. 

The  mortgage  trustee  represents  the  bond- 
holders in  a  railroad  foreclosure  suit,  and 
ordinarily  whatever  binds  the  trustee  binds 


478 


MORTGAGES,  181,  183. 


5f*;!*n 


the  bondholders;  and  they  have  no  rij^ht  to 
be  made  parlies  unless  the  trustee  is  acting 
in  bad  faitli,  or  (ailing  to  protect  their  inter- 
ests. Farmers'  J..  &^  T.  Co.  v.  Kansas 
a/y,  ir.  <3-  A'.  If.  A'.  Co.,  53  Ju-ii.  Rep. 
1S2.— FoLL()\viN(;  Kneeland  v.  Luce,  141 
U.  S.  491, 12  Su().  Ct.  Kep.  32;  Kent  v.  Lal<e 
Superior  Ship  C.,  K.  &  1.  Co.,  144  U.  S.  75, 
J  2  Sup.  Ct.  Kep.  650;  Elwell  v.  Fosdick, 
134  U.  S.  500,  10  Sup.  Ct.  Kep.  598. 

While  a  cause  is  pending  in  the  court  of 
cliuncery  to  foreclose  a  mortgage  brought 
by  a  part  of  the  bondliolders  in  behalf  of 
themselves  and  all  others  the  owners  and 
holders  of  bonds  who  might  choose  to 
come  into  the  suit,  other  owners  of  bonds 
secured  by  the  same  mortgage,  on  petition, 
ill  the  discretion  of  the  court,  may  be  made 
parties  orators.  And  this  is  so  although 
the  cause  had  passed  to  the  supreme  court, 
and,  at  the  time  the  petition  was  brought, 
had  been  pending  for  several  terms  in  the 
coiTt  of  chancery,  having  been  remanded 
with  a  mandate  affirming  the  decree  below, 
and  the  bonds  of  the  original  orators  paid 
off.  In  re  C/iickering,  26  Am.  &*  £ng-  -A'. 
Cas.  646,  56  Vt.  82. 

b.  Parties  Defendant ;  Intervention. 

181.  Parties  dcfeudaiit,  g:ciicrally.* 

--Where  a  receiver  is  appointed  for  a  rail- 
road on  a  bill  filed  by  a  second  mortgagee, 
and  the  first  mortgagee  is  made  a  party,  it 
has  the  effect  of  bringing  the  entire  prop- 
erty into  court,  and  not  merely  the  equity 
<jf  redemption,  or  interest  of  the  second 
mortgagee.  Miltenberger  v.  Logansport,  C. 
»?-  \.  H^.  Ji.  Co.,  12  Am.  &*  Eng.  R.  Cas. 
464.  106  U.  S.  286,  I  Sup.  Ct.  Rep.  140. 

Where  a  federal  court  has  taken  ;  osses- 
.  i  >n  of  mortgaged  railroad  property  by  the 
appointment  of  a  receiver,  and  is  proceed- 
ing to  foreclose  a  junior  mortgage,  and  suit 
is  brought  in  the  same  court  to  foreclose  a 
senior  mortgage,  the  court,  having  acquired 
jurisdiction  over  the  property,  will  retain  it 
for  all  purposes,  and  will  make  the  purchaser 
under  the  first  foreclosure  sale  a  defendant 
and  order  substituted  service  of  process  upon 
him  regardless  of  his  citizenship.  Farmers' 
L.&r'  T.  Co.  v.  Houston  Sf  T.  C.  R.  Co.,  44 
Fed.  Rep.  1 1 5. 

The  proceeding  to  foreclose  a  real  estate 
mortgage  is  void  as  to  all  persons  interested 
« — — 

*  Prior  and  subsequent  encumbrancers  as  par- 
ties, see  note,  3  Am.  &  Enc.  R.  Cas.  530. 


in  the  subject  of  the  suit  who  are  not  parties 
to  the  action.  Therefore,  if  such  persons 
are  not  made  parties,  another  action  may  be 
instituted  either  by  or  against  them  for  the 
purpose  of  determining  their  rights;  it 
against  them,  it  may  be  by  the  purchaser  of 
the  property  sold  under  the  first  foreclo- 
sure. Dodge  v.  Omaha  &^  S.  IV.  R,  Co.,  28 
Atn.  &•  Eng.  R.  Cas.  260,  20  Neb.  276,  29 
N.  W.  Rep.  936. 

182.  Proper  and  iiece.*isary  par- 
ties.*— In  a  suit  for  the  foreclosure  of  a 
railroad  mortgage,  the  trustees  of  the  mort- 
gage bondholders  should  be  parties.  Hale 
V.  Nashua  &•  L.  R.  C».,  60  A'.  H.  333. 

Where  bondholders  who  hold  bonds  se- 
cured by  a  first  mortgage  on  part  of  a 
road,  and  by  a  second  mortgage  on  the  re- 
mainde<  of  the  road,  commence  suit  to  fore- 
close, and  to  have  an  accounting  of  the 
earnings  of  the  different  parts  of  the  road, 
and  for  other  relief,  the  trustees  in  the  sec- 
ond mortgage  are  necessary  parties.  Mer- 
cantile Trust  Co.  V.  Portland  &^  O.  R.  Co., 
10  Fed.  Rep.  604.— Explaining  Brooks  %>. 
Vermont  C.  R.  Co.,  14  Blatchf.  (U.  S.)  463; 
Mercantile  Trust  Co.  v.  Lamoille  Valley  R. 
Co.,  16  Blatchf.  324. 

If  such  trustees  reside  in  another  state, 
the  statute  of  1875,  ch.  137,  §  8,  which  pro- 
vides for  summoning  into  the  circuit  court 
of  such  absent  parties  where  there  is  prop- 
erty within  the  jurisdiction  of  the  court 
upon  which  a  lien  is  claimed,  applies.  Mer- 
cantile Trust  Co.  V.  Portland &-  O.  R.  Co., 
io  Fed.  Rep.  604. 

In  foreclosure  brought  by  the  trustees 
and  the  holders  of  the  bonds,  an  assignor 
of  the  bonds  to  such  holders,  as  collateral 
security  for  a  debt  less  than  the  amount  of 
the  bonds,  should  be  made  a  party.  Acker- 
son  V.  Lodi  Branch  R.  Co.,  28  A'.  /.  Eg.  542. 

Where  the  question  is  one  of  a  common 
or  general  interest  of  many  persons,  or 
where  the  persons  who  might  be  made  par- 
ties are  very  numerous,  and  it  may  be  im- 
practicable to  bring  them  all  before  the 
court,  one  or  more  may  sue  or  defend  for 
the  benefit  of  all.  Stevens  v.  Union  Trust 
Co.,  57  Hun  498,  33  A'.  Y.  S.  R.  1 30. 

When  a  party  brings  an  action  for  him- 
self, he  can  select  his  own  defendants,  but 
when  he  volunteers  to  sue  as  the  represent- 

*  Necessary  parties,  see  note,  36  Am.  &  Eng. 
R.  Cas.  250. 

Prior  mortgagees  as  proper  parties,  see  note, 
17  Am.  &  Enu.  R.  Cas.  260, 


MORTGAGES,  183,  184. 


479 


ative  of  others,  he  should  join  all  who 
ought  to  be  sued.  If  a  railroad  is  to  be 
sold,  the  common  interest  of  the  bond- 
liolders  requires  that  the  outstanding  liens 
and  clouds  upon  tlie  title  behind  the  bonds 
secured  by  the  mortgage  should  be  cut  oil, 
to  the  end  that  there  should  be  no  diminu- 
tion of  price  upon  account  thereof;  and 
where  mortgage  trustees  refuse  to  act,  and 
one  or  more  bondholders  sue  as  the  repre- 
sentative of  all,  the  trustees  should  be  made 
parties.  Sle^wns  v.  Union  Trust  Co.,  57 
J/iin  498,  33  A^.   Y.  S.  a:  1 30. 

Where  a  foreclosure  is  instituted  against 
a  railroad  company,  and  it  claims  that  a 
trust  deed  executed  to  a  third  person  on 
the  same  premises  is  prior  to  the  mortgage 
sought  to  be  foreclosed,  it  is  the  right  of 
the  company  to  have  that  question  deter- 
mined, and  for  that  purpose  to  have  t!ie 
grantee  in  such  deed  made  a  defendant. 
Therefore  a  refusal  to  vacate  an  order 
making  such  grantee  a  defendant  is  not 
error,  tliougli  tiie  plaintiff  offer  to  stipulate, 
for  the  purpose  of  the  suit,  that  such  trust 
deed  constitutes  a  prior  lien,  as  such  stipu- 
lation would  not  be  conclusive  as  to  third 
parties.  Haass  v.  Chicago  &*  N.  IV.  /v'.  Co., 
39  IVis.  296. 

183.  Pr<>|»er  tlioiig:li  not  necessary 
parties. — Where  a  bill  to  foreclose  a  rail- 
road mortgage  executed  by  two  companies 
sets  out  the  respective  incorporations  and 
grants  of  the  original  franchises  to  one  of 
the  companies,  the  practical  consolidation  of 
the  two  companies,  the  expenditure  of  large 
sums  by  the  consolidated  companies  in  the 
construction  of  a  road,  and  the  execution  of 
a  mortgage  thereon,  and  traces  the  fran- 
chises through  numerous  mesne  convey- 
ances into  the  hands  of  a  third  company, 
by  which  it  is  leased  to  a  fourth,  surh  latter 
companies,  being  respectively  owners  of  the 
equity  of  redemption  and  lessee  in  posses- 
sion, are  properly  made  parties  to  the  fore- 
closure. Beekman  v.  Hudson  River  IV.  S. 
A'.  Co.,  36  Am.  <S»  Eng.  A'.  Cas  321,  35  Fed. 
A'efi.  3. 

Where  a  company  procured  a  conveyance 
for  right  of  way  over  a  tract  of  land  encum- 
bered by  a  mortgage  during  the  pendency 
of  an  action  (to  which  the  grantor  was  a 
party)  to  foreclose  the  mortgage,  it  was 
charged  with  notice  of  the  action  without 
being  made  a  party  thereto,  and  was  bound 
by  the  decree  of  foreclosure.  It  might 
have  intervened  in  the  action  for  its  own 


protection,  but  failing  in  that,  its  only  re- 
maining right  was  to  redeem  from  the  fore- 
closure sale.  Failing  so  to  redeem,  the 
sheriff's  deed  divested  it  of  its  title,  /ack- 
son  V.  Centerville,  M.  &•  A.  A'.  Co.,  17  Am. 
(S-*  Eng.  A'.  Cas.  i8i,  64  Iowa  292,  20  N.  M^. 
Rep.  442. 

Wliere  a  first  mortgage  trustee  files  a  bill 
to  foreclose  and  makes  the  trustee  in  a  sec- 
ond mortgage  a  party,  the  bondholders  se- 
cured by  such  mortgages  are  not  parties ; 
but  they  are  privies  and  may  defend  pro 
interesse  sua,  but  their  rights  are  affected  by 
a  decree  against  the  trustee.  The  bond- 
holders are  not  creditors  claiming  the  right 
to  attack  the  decree  of  an  opposing  cred- 
itor for  fraud  or  collusion  between  the 
plaintiff  and  defendant,  but  are  affected  by 
the  decree  against  their  own  trustee.  Mc- 
Eh  at  It  V.  Pittsburg  6-  i".  A'.  Co.,  68  Pa.  St. 
yj,  I  Am.  Ry.  Rep.  139.  —  Followed  in 
Rice  V.  Southern  Pa.  I.  &  R.  Co.,  9  Phila. 
(Pa.)  294. 

184.  Improper  or  uuiiecessary 
parties. — Where  a  mortgage  is  executed 
to  trustees  to  secure  an  issue  of  bonds,  in 
foreclosing  the  mortgage  it  is  not  neces- 
sary tO'  make  all  the  bondholders  parties. 
Campbell  v.  Texas  &•  N.  O.  R.  Co.,  i  Woods 
{U.  5.)  368. 

And  where  there  are  two  or  more  mort- 
gages, and  the  trustees  in  a  prior  mortgage 
file  a  bill  to  foreclose,  it  is  not  necessary  to 
make  bondholders  secured  by  a  subsequent 
mortgage  parties.  Campbell  v.  Texas  &>  N. 
O.  R.  Co.,  I   Woods  {U.  S.)  368. 

And  where  the  bondholders  are  numer- 
ous it  is  not  necessary  to  make  any  of  them 
parties  to  a  foreclosure  proceeding,  if  they 
are  represented  by  trustees  who  are  made 
parties.  Campbell  v.  Texas  &•  N.  O.  R. 
Co.,  I  Woods  (U.  ^•.)368. 

Where  the  parties  are  numerous,  a  suit 
brought  by  or  against  some  on  behalf  of  all 
is  binding  on  all ;  but  the  parties  not  named 
may  intervene  and  become  actual  parties  so 
long  as  the  proceedings  are  in  fieri.  Camp- 
bell v.  Texas  &*  N.  O.  R.  Co.,  1  Woods  (U. 
S.)  368. 

Where  bondholders  are  represented  by 
trustees  who  are  made  parties,  a  decree 
against  the  trustees  is  binding  on  the  bond- 
holders unless  they  can  show  fraud  or  con- 
nivance on  the  part  of  the  trustees.  Camp- 
bell v.  Jexas  <S-  N.  O.  R  Co.,  i  Woods  {U. 
S.)  368. 
Junior  mortgagees  may  maintain  a  bill  to 


I'    S 


480 


MORTGAGES,   !»;>,  18«. 


foreclose  without  making  the  senior  mort- 
gagees parties;  but  the  foreclosure  sale 
must  be  subject  to  the  senior  mortgage. 
Young  V.  Montgomery  <3>«  E.  R.  Co.,  2  IVooiis 
(U.  5.)  606. 

In  such  case  the  senior  mortgagees  can- 
not be  made  part'es  by  general  notice  to 
creditors  to  present  their  claims.  They  must 
be  either  served  with  process  or  voluntarily 
appear.  Young  v.  Montgomery  &*  E.  A\  Co., 
2  IVoods  ( U.  S.)  606. 

But  if  the  senior  mortgagees  are  repre- 
sented by  trustees  who  are  actual  parties, 
then  a  general  notice  to  present  their  claims 
is  sufficient.  Young  v.  Montgomery  &*  E. 
Ji.  Co.,  2  IVoods  { U.  S.)  606. 

It  is  not  proper  to  allow  senior  mort- 
gagees to  become  parties  to  a  foreclosure  of 
a  junior  mortgage,  and  to  allow  them  to 
contest  a  judgment  providing  for  a  reor- 
ganization of  the  road,  where  there  is  noth- 
ing to  show  how  their  securities  will  be 
impaired  thereby,  as  ordinarily  parties  can- 
not be  affected  by  proceedings  to  which 
they  are  neither  parties  nor  privies.  The 
proper  remedy  is  through  a  separate  ac- 
tion, either  by  their  trustees  or,  if  they  are 
hostile,  in  their  ow  1  names.  McHenry's 
Petition.  9  Abb.  N.  Cas.  (N.   Y.)  256. 

In  a  suit  to  foreclose  a  mortgage  to  which 
the  mortgagee  and  the  holder  of  the  legal 
title  are  parties,  it  is  not  necessary  to  bring 
in  the  grantor  of  the  legal  title  as  a  party 
defendant.  Mercantile  Trust  Co.  v.  Mis- 
souri, K.  &*  T.  R.  Co.,  43  Am.  &•  Eng.  R. 
Gts.  469,  41  Fed.  Rep.  8. 

Unsecured  creditors  are  not  necessary  or 
proper  parties  to  a  suit  to  foreclose  a  mort- 
gage of  a  railroad,  and  have  no  right  to  in- 
tervene therein,  but  are  bound  by  an  ad- 
judication against  the  mortgagor.  Herring 
V.  New  York,  L.  E.  &>  IV.  R.  Co.,  35  Am. 
&*  Eng.  R.  Cas.  54,  105  N.  Y.  340,  19  Abb. 
N.  Cas.  340,  12  N.  E.  Rep.  763,  7  N.  Y.  S. 
R.  547 ;  affirming  34  Hun  634,  mem.,  63 
Ho7v.  Pr.  497.— Following  Bionson  v.  La 
Crosse  &  M.  R.  Co.,  2  Black  (U.  S.)  524; 
Stout  V.  Lye,  103  U.  S.  66. 

If  the  attorney-general  commences  an 
action  in  the  name  of  the  people  against  an 
insolvent  corporation  for  the  purpose  of 
effecting  its  dissolution  and  winding  up, 
and  after  appointment  of  a  temporary 
receiver  therein  the  mortgagee  is  permitted 
by  th"  court  to  commence  a  suit  to  fore- 
close his  mortgage  upon  the  road,  the 
people   are  not   necessary  parties  to  such 


foreclosure  suit,  although  the  court  in  its 
discretion  might  permit  them  or  the  receiver 
in  their  action  to  intervene  therein  upon 
application  for  that  purpose.  Herring  v. 
New  York,  L.  E.  &*  W.  R.  Co.,  35  Am.  (S- 
Eng.  R.  Cas.  54,  105  N.  Y.  340,  19  Abb.  N. 
Cas.  340,  12  N.  E.  Rep.  763,  7  N.  Y.  S.  R. 
547  ;  affirming  34  Hun  634,  num.,  63  How. 
Pr.  497. 

A  village  granted  permission  to  a  railroiid 
company  to  lay  its  tracks  in  the  streets,  on 
condition  that  the  company  j;ive  a  bond  to 
indemnify  the  village  against  all  damages 
caused  by  building  the  road.  The  vilkige 
claimed  damages  and  brought  suit  on  the 
bond,  pending  which  a  proceeding  was 
commenced  to  foreclose  a  mortgage  011  the 
road.  Held,  that  the  village  was  only  a 
general  creditor,  and  was  not  a  proper  party 
to  the  foreclosure  suit.  Farmers'  L.  <S»  T. 
Co.  v.  New  Rochelle  &*  P.  R.  Co.,  10  A'.  F. 
Supp.  810,  57  Hun  376,  32  N.  Y.  S.  R.  714; 
affirmed  in  126  N.  '/.  624,  mem.,  27  N.E. 
Rep.  410,  mem. 

185.  Who  may  intervene.*— Where 
a  majority  of  bondholders,  after  a  fore- 
closure suit  has  been  instituted,  adopt  a 
plan  to  form  a  new  corporation,  a  minority 
of  the  bondholders,  who  dissent  from  the 
plan,  and  charge,  among  other  things,  that 
the  trustees  are  improperly  acting  with  the 
majority,  are  entitled  to  intervene  for  the 
purpose  of  protecting  their  own  interests, 
and  prosecuting  charges  made  against  the 
trustees.  De  Bets's  Petition,  9  Abb.  N.  Cas. 
{N.  Y.)  246. 

Immediately  after  a  judgment  was  ob- 
tained against  a  railroad  foreclosure  pro- 
ceedings were  instituted,  and  a  receiver 
appointed,  but  the  judgment  creditor  pro- 
ceeded to  levy  his  execution  upon  property 
in  the  receiver's  hands,  claiming  that  the 
suit  was  coUusively  brought  in  order  to  de- 
feat a  recovery  on  his  judgment.  Held, 
that  after  disclaiming  any  intention  to  in- 
terfere with  the  property  in  the  hands  of 
the  receiver  he  should  be  permitted  to  in- 
tervene in  the  foreclosure  suit,  and  support 
his  claim  and  right  of  recovery.  F'arm- 
ers'  L.  Sf  T.  Co.  v.  Toledo  Sr-  S.  H.  R.  Co., 
43  Fed.  Rep.  223. 

18ti.  Wlin  may  not  — Dismissal  of 
petition  to  intervene.— Where  a   rail- 

•  Right  to  intervene  after  a  decree  of  fore- 
closure, see  33  Am.  &  Enc.  R.  Cas.  45,  abstr. 

Exercise  by  bondholder  of  option  to  come  in, 
see  46  Am.  &  Eng.  R.  Cas.  351,  abstr. 


' 


MORTGAGES,   187,  188. 


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road,  under  its  charter,  is  divided  into  two 
divisions,  and  tiie  company  mortgages  eacii 
division  separately  for  independent  debts, 
creditors  of  the  company  and  purchasers  of 
one  division  cannot  intervene  in  a  suit  af- 
fecting the  other  division  for  the  purpose  of 
lessening  a  decree.  Bronson  v.  La  Crosse  i3^ 
Jl/.  A'.  Co.,  2  /i/ac/,-  (U.  S.)  524.— Followed 
IN  Herring  7:  New  York.  L.  E.  &  W.  R.  Co., 
35  Am.  &  Eng.  R.  Cas.  54,  105  N.  Y.  340,  19 
Abb.  N.  Cas.  340,  12  N.  E.  Rep.  763,  7  N. 
Y   S.  R.  547. 

Where  a  foreclosure  is  instituted  against 
a  road,  and  it  appears  tiiat  certain  lands  are 
specially  excepted  from  the  property  that 
passes  into  the  hands  of  a  receiver,  and  no 
( laiin  is  made  of  any  lien  thereon,  one  who 
has  purchased  a  part  of  the  lands,  and  who 
is  a  citizen  of  the  same  state  with  the  com- 
jiany,  should  not  be  allowed  to  intervene, 
(I)  because  it  is  introducing  foreign  litiga- 
lioii,  and  (2)  because  of  the  citizenship  of 
the  intervener  and  the  company.  Cutting 
\.  Florida  R.  &*  N.  Co.,  45  Fed  Ref-.  444. 

A  foreclosure  suit  is  not  a  proper  pro- 
ceeding in  which  to  litigate  the  rights  of  a 
()arty  claiming  title  to  the  mortgaged  prem- 
ises in  hostility  to  tlie  mortgagor.  There- 
fore, where  defendants,  who  were  permitted 
to  intervene  in  a  foreclosure  suit  upon  a 
mortgage  made  by  a  railroad  company 
formed  by  the  amalgamation  or  consolida- 
tion, pursuant  to  legislative  authority,  of 
certain  existing  railroad  companies,  sought 
to  question  and  litigate  the  validity  of  the 
consolidation — held,  that  that  defense  would 
not  be  entertained.  Coe  v.Ne^u  Jersey  Mid- 
liiiut  R.  Co.,  31  N.J.  Eg.  105  ;  rei'ersed  in 
34  .V.  J.  Eq.  266. 

A  foreclosure  proceeding  was  commenced 
against  a  railroad,  and  a  receiver  appointed, 
with  the  consent  of  the  company.  The 
court  proceeded  to  adjudicate  intervening 
claims,  and  the  receiver  operated  the  road 
at  a  loss,  requiring  receiver's  certificates 
to  be  issued,  and  after  the  company  had 
failed  to  answer,  and  the  property  had 
been  tlius  managed  for  sixteen  months, 
and  when  the  court  was  about  ready  to 
close  up  the  proceeding,  a  bondholder  ap- 
peared, and  objected  that  the  proceeding 
was  improperly  brouj^ht.  Held,  that  his  po- 
sition was  no  better  than  that  of  the  com- 
pany, and  application  to  intervene  would 
not  be  granted.  Central  Trust  Co.  v.  Texas 
<S-  St.  L.  R.  Co..  24  Fed.  A-/    153. 

A  mortgage  of  railroad  property  was  made 
6  D.  R.  D.— 31 


to  one,  his  heirs  and  assigns,  as  trustee  for 
bondholders.  Under  proceedings  for  fore- 
closure, the  mortgagee  being  dead,  another 
trustee  was  substituted  and  a  decree  <if  fore- 
closure rendered.  Afterwards  a  petition 
was  filed  by  a  son  of  the  original  mortgagee 
claiming  to  be  his  heir  at  law,  and  praying 
to  be  made  a  party.  Petition  dismissed. 
Gibhes  v.  Greenville  &■'  C.  R.  Co.,  4  .,•/«/.  &^ 
Jiiig.  A'.  Cas.  459,  13  So.  Car.  228. 

187.  IMghtsof'liiti'rvi'm'i's.— Where 
a  personal  representative  intervenes  in  a 
foreclosure  suit  to  recover  damages  for  the 
death  of  his  intestate,  who  was  killed  by  the 
oi)eration  of  the  road,  he  is  not  entitled  to  a 
trial  by  jury.  Kennedy  v.  Indianapolis,  C. 
6^  L.  R.  Co.,  I  Fed.  Rep.  97,  zFlipp.  {U.S.) 
704. 

A  parly  who  has  intervened  in  a  foreclo- 
sure to  which  there  are  several  parties  de- 
fendant will  not,  upon  the  rendering  of  a 
decree  and  the  dismissal  of  all  the  parties 
save  one,  from  whom  the  intervener  claims 
relief,  lose  his  standing  m  the  action.  Joliet 
J.  iS-  S.  Co.  V.  Chicago.  C.  <Sr-  W.  R.  Co.,  51 
/o7va  300. 

188.  AdiiiittiiiK  boii<lliohler!«  as 
defcinlaiits.— The  Raritan.etc,  R.  Co.,to 
secure  bonds  issued  under  its  charter,  ex- 
ecuted a  mortgage  upon  the  railroad  and  its 
branches  and  all  its  rei.l  and  personal 
property,  including  steamboats,  etc..  and  all 
franchises,  etc.,  then  held  or  thereafter  to  be 
acquired  by  it.  After  the  name  had  been 
changed  to  the  New  Jersey  Southern  R  Co. 
the  trustees  under  the  first  mortgage  filed  a 
bill  to  foreclose,  making  only  the  company 
and  the  trustees  under  the  second  and  third 
P'.ortgages  defendants,  and  took  a  decree 
pro  confesso  against  all  the  defendants,  with 
the  usual  order  of  reference.  Certain  of  the 
first  mortgage  bondholders  afterwards  filed 
a  petition  alleging  that  the  N.  J.  S.  R.  Co., 
after  executing  the  first  mortgage,  became 
the  actual  owners  of  the  Long  Branch,  etc., 
railroad  and  certain  steamboats,  etc.,  which 
road  it  had  extended,  and  with  its  own 
funds  built  a  pier  and  costly  buildings  to  be 
used  therewith.  The  petitioners  claimed 
that  the  original  bill  was  insufficient  to  se- 
cure their  claim  to  a  lien  on  this  after-ac 
quired  property,  and  prayed  to  be  admitted 
as  complainants  with  the  trustees. who  might 
be  instructed  to  amend,  etc.,  or  file  a  supple- 
mental bill,  etc.,  also  for  a  receiver  of  all  the 
roads.  Held:  (1)  that  the  lien  of  the  mort- 
gage attached  to  such  after-acquired  prop- 


:1;* 


1^ 


I 


/•! 


n 


MORTGAGES,  189,  1«0. 


crty  the  instant  it  was  acquired,  and  these 
trustees  held  it  subject  to  tlie  trusts  tlierein; 
(2)  that  a  supplemental  bill  should  be  filed 
by  the  trustees  distinctly  setting  up  this 
claim,  and  making  all  parties  in  adverse  in- 
terest defendants ;  (3)  that  although  bond- 
liolders  are  not  necessary  parties  to  a  bill  to 
foreclose,  the  petitioners  would  be  admitted 
as  defendants  if  they  so  desired.  Williatn- 
son  V.  NfiO  JcTSiy  Southern  R.  Co.,  25  A'./, 
Et].  13. 

c.  Notice  of  Foreclosure;  Defenses. 

18J>.  Notice  of  foreclosure. — A  pro- 
vision ill  a  charter  that  a  foreclosure  of  a 
mortgage  of  the  company's  property  "shall 
not  take  place  until  ninety  days  after  publi- 
cation of  notice  of  the  commencement  of 
proceedings  "  to  foreclose  only  applies  to 
the  forechjsure  itself,  and  not  to  the  bring- 
ing of  a  suit  to  foreclose.  Hoddcr  v.  Ken- 
tucky &^  G.  E.  K.   Co.,  7  /•>//.  A'e^.  793. 

A  railroad  mortgage  provided  that  on  the 
default  to  pay  interest  the  trustees  might 
elect  to  declare  tlie  entire  debt  due,  in  which 
case  they  must  give  notice  to  the  mortgagor. 
J/e/</,  that  a  mere  default  to  pay  interest 
would  not  make  the  entire  debt  due,  with- 
out such  declaration  and  notice  by  the 
trustees.  C/tuttj^-o,  D.  &^  V,  1\.  Co.  v.  Fas 
dick,  7  Am.  &^  Eiig.  A\  Ciis.  427,  106  i/.  S. 
47,  I  Si//>.  CL  Rep.  10.— Applieu  in  Mer- 
cantile Trust  Co.  V.  Missouri,  K.  &  T.  R. 
Co.,  36  Am.  &  Eng.  R.  Cas.  259,  36  Fed. 
Rep.  221.  Di.STiNGUiSHF.D  IN  Morgan's  L. 
&.  T.  R.  &  S.  Co.  V.  Texas  C.  R.  Co.,  137  U. 
S.  171. 

A  railroad  mortgage  provided  that,  upon 
default  in  the  payment  of  interest  or  princi- 
pal of  the  bonds  secured,  the  trustee?  might 
take  possession  of  the  road  and  operate  it 
ff)r  the  benefit  of  the  bondholders  ;  or  they 
mij;ht  at  their  option,  in  case  of  default,  after 
sixty  days'  notice  to  the  company,  sell  the 
property  after  advertising  it  for  sixty  days. 
Held,  that  the  trustees,  in  case  of  default  in 
payment  of  the  interest,  might  take  posses- 
sion and  subsequently  sell  ;  but  they  must 
advertise  the  property  for  sixty  days  after 
giving  the  company  sixty  days'  notice. 
J\facon  &^  A.  R.  Co.  v.  Georgia  R.  Co.,  i  Am. 
«S-  Hng.  R.  Cas.  378,  63  Ga.  103. 

The  Kennebec  &  Portland  R.  Co.  on  the 
15th  of  October,  1852,  pursuant  to  a  vote  of 
its  directors,  mortgaged  its  road,  franchise, 
and  other  property  to  certain  persons  named 
in  trust  for  the  benefit  of  the  holders  of  a 


certain  class  of  its  bonds,  duly  issued  by  the 
company,  with  interest  payable  semi-an- 
nually. The  company  having  neglected  to 
pay  the  interest  coupons  due  on  the  bonds, 
on  and  after  April  i,  1856,  the  trustees,  upon 
due  application  by  the  holders  of  the  bonds 
to  an  amount  exceeding  one  third  of  the 
amount  of  the  mortgage,  on  the  i8lh  of 
October,  1859,  in  accordance  with  Me.  Pub. 
Laws  of  1857,  ch.  57,  gave  the  public  notice, 
and  caused  the  same  to  be  published,  and  a 
copy  of  the  printed  notice  recorded  at  the 
time  and  place  and  in  the  manner  prescribed 
in  said  statute,  for  the  purpose  of  obtaining 
a  foreclosure  of  the  mortgage  for  the  breach 
of  its  condition.  In  a  bill  to  redeem— //^'A/, 
by  a  majority  of  the  court,  that  the  mortgage 
was  legally  foreclosed.  Kennebec  &^  P.  R. 
Co.  V.  Port  land  &•  K.  R.  Co.,  59  Afe.  9. — 
Followed  in  Sullivan  v.  Portland  &  K.  R. 
Co.,  94  U.  S.  806. 

190.  What  defenses  are  available, 
generally. — In  an  action  to  foreclose  a 
railroad  mortgage  given  to  secure  negoti- 
able bonds,  no  greater  defense  can  be  made 
than  could  be  made  in  a  suit  on  the  bonds 
themselves.  Kenicott  v.  Wayne  County 
Sufrs.  16  IVall.  (U.  S.)  452. 

Where  the  proof  shows  that  a  company 
never  received  any  consideration  for  bonds 
issued  by  it  to  the  payee,  a  contractor,  which 
bonds  were  secured  by  a  mortgage  on  its 
road,  this  will  constitute  a  good  defense  as 
against  the  payee  or  person  to  whom  deliv- 
ered, and  as  against  a  dona  fide  purchaser 
when  seeking  to  foreclose  the  mortgage. 
C/ticai^o,  D.  &*   V.  R.  Co.  v.  Loewent/ial,  93 

///.  433- 

Where  a  company  executing  a  mortgage 
upon  its  road  as  contemplated  has  no  legal 
title  to  any  of  the  right  of  way,  and  a  new 
company  is  organized  which  builds  the  road 
and  acquires  the  legal  title  to  most  of  the 
right  of  way,  no  foreclosure  can  be  had  as 
against  the  new  company  for  the  sale  of  its 
property.  Chicago,  D.  &*  J'.  A'.  Co.  v.  Loe7v- 
enthal,  93  III.  433. 

An  action  to  foreclose  a  mortgage  on  a 
railroad  by  a  trustee  will  be  stayed  on  a  mo- 
tion made  in  such  action,  where  it  is  shown 
that  such  action  is  brought  to  injure  the 
owners  of  the  bonds  and  benefit  the  stock- 
holders of  the  corporation.  Tillinghast  v. 
Troy  6-  />'.  R.  Co.,  16  A'.  V.  S.  R.  475,  48 
Nun  420,  I  A',  v.  Supp.  243 ;  affirmed  in  1 2 1 
A'.   Y,  6.(^9,  mem.,  24  N.  E.  Rep.  1091,  mem. 

Where  trustees  have  commenced  a  fore- 


MORTGAGES,  191,  102. 


483 


closure  suit  at  the  request  of  certain  bond- 
liolders,  and  other  bondholders  do  not  desire 
a  foreclosure,  they  may  defeat  it  by  paying 
to  tlie  bondliolders  who  are  seeking  a  fore- 
closure the  full  value  of  their  bonds,  and 
the  costs  of  the  suit,  and  may  compel  an 
assignment  of  their  interest  in  the  suit. 
nUinghast  v.  Troy  &' li.  A'.  Co.,  1 6  N.  V. 
S.  A\  475,  48  //««  420,  I  N.  V.  Supp.  243; 
affirmed  in  121  N.  1'.  649,  mem.,  24  X.  E. 
Rep.  1091,  mem. 

191.  What  defenses  will  not  detent 
foreclosure. — Where  a  railroad  is  mort- 
gaged to  secure  a  large  number  of  bonds, 
tile  fact  tliat  some  of  the  bonds  are  invalid 
will  not  avoid  the  mortgage  or  proceedings 
to  foreclose  it.  Graham  v.  Boston,  //.  &■'  E. 
K.  Co.,  25  Am.  (S"*  Eng.  K.  Cas.  53,  118  U. 
S.  161,  6  Sup.  Ct.  Rep.  1009. 

It  cannot  concern  bondholders  how  ser- 
vice of  process  on  a  railroad  company  is 
obtained  in  a  foreclosure  suit  provided  tiie 
court  legitimately  obtains  jurisdiction  of 
the  parties  and  the  indebtedness  is  not 
questioned.  Farmers'  L.  &•  T.  Co.  v. 
Cirecn  Bay  &>  M.  R.  Co.,  10  Biss.{U.S.) 
2®.3,  6  Fed.  Rep.  100. 

VVliere  a  corporation  existing  under  the 
1.1  ws  of  one  state  executes  a  mortgage  on 
property  in  another  state,  it  is  no  defense 
to  a  suit  to  foreclose  the  mortgage  that 
certain  directors  of  the  corporation  were  not 
residents  of  the  same  state  with  the  cor- 
poration at  the  time  the  mortgage  was  exe- 
cuted. Wheelwright  v.  St.  Louis,  N.  O.  &^ 
O.  Canal  Transp.  Co.,  56  Fed.  Rep.  164. — 
Distinguishing  Nashville  &  D.  R.  Co.  v. 
Orr,  18  Wall.  (U.  S.)  471  ;  Cliicago,  D.  cS:  V, 
K.  Co.  V.  Fosdick,  106  U.  S.  47,  i  Sup.  Ct. 
Rep.  10. 

Neither  is  it  any  defense  that  such  direc- 
tors went  into  the  state  only  for  a  short 
time  to  attend  a  meeting  of  the  directors, 
which,  by  resolution,  authorized  the  mort- 
gage. Wheelwright  v.  St.  Louis,  N.  O.  &• 
O.  Canal  Transp.  Co.,  56  Fed.  Rep.  164. 

Neither  is  it  any  defense  that  the  corpo- 
ration by  authority  of  the  directors  pledged 
certain  bonds  to  raise  money  to  carry  on  its 
work  of  construction,  and  that  on  a  fore- 
closure of  the  pledge  the  bonds  were  sold 
much  below  their  face  value,  where  the 
pledge  itself  was  legal.  Such  facts,  in  the 
absence  of  fraud,  cannot  affect  the  purchas- 
er's title  to  the  bonds.  Wheelwright  v.  St. 
Louis,  N.  O  &>  O.  Canal  Transp.  Co.,  56 
Fed.  Rep.  164. 


Neither  the  minority  stockholders  nor 
one  who  is  not  a  stockholder  at  the  time  of 
the  alleged  illegal  transactions  can  main- 
lain  a  bill  in  defense  of  the  foreclosure  of  a 
railroad  mortgage  alleging  that  the  affairs 
of  the  corporation  have  been  mismanaged 
in  the  interest  of  the  principal  stockholder, 
and  that  the  bonds  are  void  for  usury,  in 
their  negotiation,  where  no  demand  has 
been  made  upon  the  directors  or  stockhold- 
ers to  make  such  defense,  the  only  excuse 
for  not  making  the  demand  being  tiiat  the 
olHcers  are  in  collusion  with  the  plaintiff. 
Alexander  v.  Searcy,  36  Am.  &^  Eng.  R.  Cas. 
239,  81  Ga.  536,  8  S.  E.  Rep.  630. 

A  lease  of  a  mortgaged  railroad,  made  by 
the  mortgagor  without  the  consent  of  the 
mortgagees,  is  inoperative  against  them, 
and  cannot  be  set  up  to  defeat  a  foreclosure 
of  the  mortgage.  Hale  v.  Nashua  &•  L.  R. 
Co.,  60  N.  H.  333. 

In  a  bill  to  foreclose  at  the  instance  of  a 
mortgagee  who  has  acquired  all  the  claims 
against  the  corporation,  and  has  been  al- 
lowed by  the  receiver  to  enter  into  the  pos- 
session of  the  corporate  property  and  assets, 
the  receiver  cannot  set  up  as  a  defense  an 
agreement  with  the  complainant  by  which 
the  receiver  was  to  hold  the  road  for  the 
benefit  of  the  complainant,  and  the  latter 
was  to  pay  all  the  receiver's  costs  and  ex- 
penses, which  he  has  not  done,  such  agree- 
ment not  being  intended  to  secure  to  the 
receiver  the  right  to  set  off  his  fees  and 
costs  against  the  amount  due  on  the  mort- 
gage. Ryan  v.  Anglesea  R.  Co.,  (N.  /.  Eq.) 
35  Am.  <S>»  Eng.  R.  Cas.  51,  12  Atl.  Rep.  539. 

The  net  income  of  a  mortgaged  road  was 
not  enough  to  pay  full  interest  on  its  bonds, 
to  extinguish  its  floating  debt,  and  to 
maintain  its  road  in  good  condition,  and 
the  holder  of  a  majority  of  the  bonds 
agreed  to  accept,  and  requested  the  com- 
pany to  pay.  only  half  interest,  and  to  ap- 
propriate the  rest  of  the  income  to  the 
floating  debt.  Held,  that  this  only 
amounted  to  a  waiver  of  payment  when 
the  interest  fell  due,  which  might  be  termi- 
nated at  any  time  upon  notice  and  a  demand 
for  full  payment,  and  would  not  thereafter 
prevent  the  trustee  from  proceeding  to 
foreclose.  Union  Trust  Co.  v.  St.  Louis,  I. 
M.  vS-  S.  R.  Co.,  5  Dill.  {U.  S.)  \. 

1«2.  Delay  —  Failure  to  certity 
bonds. — Where  there  is  no  pretense  that 
a  suit  brought  on  the  part  of  a  bondholder 
to  foreclose  a  railroad  mortgage  is  barred 


1. 


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484 


MORTGAGES,  1»3-1»5. 


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by  iiiiy  statute  of  limitation,  if  dehiy  for 
any  less  period  than  that  prescribed  by 
statute  is  souylit  to  be  availed  of  in  bar  of 
complainant's  right  to  recover,  the  fact  of 
such  ilelay  is  a  mixed  question  of  law  and 
fact  which  should  not  be  passed  upon  on 
demurrer.  Bcckiinin  v.  Iftn/sun  River  IV. 
S.  A'.  Co.,  36  .h/t.  &*  J'-iig-  A'.  Las.  321,  35 
Fed.  Rep.  3. 

In  an  action  to  foreclose  a  railroad  mort- 
gage, the  fact  that  first  mortgage  bonds 
issueii  to  secure  bondholders  under  a  gen- 
eral mortgage  have  not  been  certified  by 
the  trustee  will  not  prejudice  the  rights  of 
the  general  mortgage  bondholders,  and  if  it 
be  necessary  the  court  will  compel  the 
trustee  to  certify  them.  Atwooii  v.  Sltennn- 
doah  Valley  R.  Co..  38  Am.  &^  Eng.  R.  Cas. 
534,  85  Fa.  966,  9  S.  E.  Rep.  748. 

lO.'t.  Estoppel  to  Met  up  defeiiBC— 
Where  power  is  conferred  upon  a  corpora- 
tion to  borrow  money,  and  secure  the  same 
by  mortgage  on  its  property,  such  corpora- 
tion, after  having  received  the  loan  on  the 
security  of  its  mortgage,  will  not  be  al- 
lowed to  avoid  liability  by  questioning  its 
power  to  make  the  mortgage,  or  showing  a 
defective  execution  of  the  power  conferred 
upon  it.  Thomas  v.  Citizens'  Horse  R.  Co., 
II  Am.  &•  Enff.  R.  Cas.  306,  104  ///.  462. 

In  an  action  to  foreclose  a  mortgage  exe- 
cuted by  two  companies,  to  one  of  which 
the  franchise  was  originally  granted,  and  to 
which  franchise  a  third  company  had  suc- 
ceeded through  numerous  mesne  convey- 
ances, and  had  leased  to  a  third  company 
for  975  years,  it  not  appearing  by  the  plead- 
ings or  the  evidence  that  the  validity  of  the 
mcorporation  of  the  original  company  had 
ever  been  questioned  in  direct  proceedings 
brought  for  that  purpose,  and  it  being 
averred  that  such  original  company  had 
acted  continuously  as  a  corporation,  had 
acquired  the  mortgaged  premises,  and  exe- 
cuted the  mortgage  as  such,  received  the 
proceeds  of  the  bonds,  and  put  them  into 
the  construction  and  operation  of  the  road, 
the  companies  succeeding  to  the  franchise 
are  estopped  from  setting  up  that  the  orig- 
inal company  had  never  been  duly  incorpo- 
rated, and  hence  a  demurrer  by  them  on 
that  ground  should  be  dismissed.  Beekman 
v.  Hudson  River  IV.  S.  R.  Co.,  36  Am.  &* 
Etiff.  R.  Cas.  321.  35  Fed.  Rep.  3. 

Where  a  railroad  mortgage  was  executed 
jointly  by  the  grantee  of  the  original  fran- 
chise and  another  company,  covering  the 


railways  already  constructed  qr  thereafter 
to  be  constructed  and  the  franchise  owni'd 
by  each,  for  the  purpose  of  building  and 
operating  their  respective  lines,  the  bonds 
secured  being  those  of  the  other  company, 
issued  to  enable  it  to  acquire  a  lease  from 
the  original  company  of  the  road  and  entire 
property,  including  the  franchise,  and  to 
build  and  operate  its  road,  etc.,  and  the 
original  company  leased  its  franchise  for 
the  full  corporate  term  of  the  other  com- 
pany, and  transferred  to  it  its  entire  capital 
stock,  and  thereafter  the  property  and  fran- 
chise passed  through  mesne  conveyances 
into  the  hands  of  a  third  company  who 
leased  them  to  a  fourth,  the  last  two  f  )m- 
panies  are  estopped  to  dispute  the  va)  liiy 
of  the  mortgage,  and  hence  a  demurrer  to  a 
bill  to  foreclose  such  mortgage  should  be 
dismissed.  Beekman  v.  Hudson  River  IV. 
S.  R.  Co.,  36  Am.  6-»  Eng.  R.  Cas.  321,  35 
Fed.  Rep.  3. 

4.    Pleadittg  and  Evidence. 

104.  Bill  — Setting  out  execution 
of  inortKaife.— Where  a  bill  to  foreclose  a 
mortgage  on  a  railroad  alleges  that  the 
company,  by  its  corporate  name,  niade  cer- 
tain bonds  and  coupons,  and  on  the  same 
day,  to  secure  such  bonds,  made  and  de- 
livered a  deed  purporting  to  be  a  trust 
deed,  and  by  said  trust  deed  granted,  sold, 
and  conveyed  to  the  trustees  certain  prop- 
erty, real  and  personal,  which  is  described, 
it  is  set  forth  with  sufficient  definitcn->sf! 
that  a  mortgage  was  in  fact  executed  ;  :•• 
the  objection  that  it  is  not  sufficiently  st.^u  . 
that  the  same  was  under  seal  is  no',  w.-.il 
founded.  McAllister  v.  Plant,  54  Miss.  i>5 
17  Am.  Ry.  Rep.  389. 

Where,  on  bill  to  foreclose  a  mortgage, 
plaintiff  shows  prima  facie  the  execution 
thereof,  and  there  is  no  contrary  evidence, 
it  is  not  error  to  direct  a  verdict  for  plain- 
tiff on  defendant's  plea  of  non  est  factum. 
Mcllhenny  v.  Binz,  80  Tex.  i,  13  S.  W. 
Rep.  655. 

1 96.  Prayer  of  the  bill— Dein urrer. 
— A  complaint  in  intervention  by  an  indi- 
vidual bondholder  in  a  suit  by  a  trustee  to 
foreclose  a  certain  mortgage  executed  by 
the  defendant  railway  company,  and  in 
which  other  mortgagees  are  made  defend- 
ants, set  forth,  in  separate  portions  thereof, 
the  facts  under  which  he  claimed  the  right 
to  have  several  mortgages  securing  his  bonds 
foreclosed.    Held,  that  a  mortgagee  defend- 


MORTGAGES,  100-200. 


485 


ant  might  demur  to  the  separate  portion  of 
tlie  complaint  relating  to  his  mortgage, 
tliougli  the  demand  for  relief  was  not  fully 
stilted  therein.  Svibert  v.  Minneapolis  &* 
St.  L.  R.  Co.,  57  Am.  &>  Eng.  R.  dis.  208, 
52  Minn.  148,  53  A^.  W.  Rep.  1 134. 

A  bill  for  the  foreclosure  of  a  railway 
ninrtj^age  prayed  a  sale  of  the  property,  or 
at  tilt!  option  of  plaintifT  that  the  property 
be  dt^livered  to  iiim,  or  tiiat  a  receiver  be 
appointed.  Tiie  company  demurred  to  such 
p;irt  of  tlie  bill  "as  prays  for  a  foreclosure 
or  sale  of  said  railway,  and  that  possession 
*  *  *  be  delivered  to  plaintifT,  and  tliat  a 
receiver  be  appointed  to  take  possession  of 
tiie  road."  Held,  that  the  demurrer  was  not 
bad  in  form  because  only  to  part  of  the 
prayer  of  the  bill ;  that,  the  prayers  of  the 
bill  i)eing  in  the  alternative,  a  demurrer 
might  be  interposed  to  one  of  the  alterna- 
tives. Abbott  v.  Canada  C.  R.  Co.,  24 
Grant's  Ck.  {U.  C.)  579. 

100.  Multifariousness. —  A  bill  by 
bondholders  to  foreclose  a  railroad  mort- 
gage, and  also  to  recover  bonds  claimed  by 
some  of  the  plaintiffs  and  wrongfully  held 
by  one  of  the  defendants— //<^/</,  not  bad 
for  multifariousness.  Hale  v.  Nashua  &*  L. 
R.  Co.,  60  A^.  H.  333. 

107.  Siifllcleiic.v  of  answer.— In  an 
answer  to  a  bill  to  foreclose  a  mortgage,  it 
is  not  enough  to  say  in  response  to  a  ma- 
terial allegation  that  the  defendant,  "  hav- 
ing no  personal  knowledge  thereof,  leaves 
the  said  complainant  to  make  such  proof  as 
he  may  be  advised,"  since  the  respondent  in 
sucli  bill  may  have  information  and  belief 
of  a  strong  character,  especially  when  it  is 
considered  that  he  is  the  receiver  of  the 
<orporation,  and  has  entered  into  an  agree- 
ment with  the  complainant  by  which  the 
latter  has  obtained  possession  of  the  mort- 
gaged property.  Ryan  v.  Anglesea  R.  Co., 
(.v./.  Kq.)  35  Am.  &>  Eng.  R.  Cas.  51,  12 
.///.  Rep.  539. 

-Vn  individual  mortgaged  a  tract  of  land 
to  a  railroad  company  to  secure  a  note, 
wliich  the  company  assigned,  and  it  came 
to  plaintiff,  wlio  brought  suit  to  foreclose. 
.\fter  the  assignment  the  company  obtained 
possession  of  a  part  of  the  premises  for  ' 
depot  purposes,  and  subsequently  a  mort- 
gage on  all  of  its  property  was  foreclosed, 
and  the  land  in  question  was  purchased  by 
<lefendant  company,  a  new  corporation, 
which  defended  the  foreclosure  on  the 
ground  that  the  original  company  took  the 


land  under  condemnation  proceedings,  but 
there  was  no  averment  that  the  company 
obtained  an  appraisement  of  the  land,  and 
there  was  nothing  in  the  record  to  show 
that  such  appraisement  was  made.  Held, 
that  it  was  proper  to  adjudge  a  sale  of  so 
much  of  tlie  mortgaged  premises  as  should 
be  necessary  to  pay  the  debt,  making  no 
exception  in  favor  of  the  company.  Alien 
v.  Milwaukee  &>  St.  P.  R.  Co.,  37  Wis.  469. 

1 98.  Kxtension  of  time  to  file  an- 
swer.- Where  leave  is  asked  to  file  an  an- 
swer in  a  foreclosure  proceeding  long  after 
it  should  have  been  filed,  the  court  may 
require  affidavits  showing  tliat  there  was 
good  cause  for  the  delay.  Central  Trust 
Co.  V.  Texas  &*  St.  L.  R.  Co.,  23  Eed.  Rep. 
846. 

Where  a  foreclosure  proceeding  has  been 
protracted  for  nearly  a  year  and  a  half,  and 
the  court  is  proceeding  to  wind  it  up,  it  may 
refuse  leave  to  file  an  answer  relating  to 
matters  which  might  have  been  litigated 
long  before,  and  which  raises  an  irrelevant 
issue.  Central  Trust  Co.  v.  Texas  &^  St.  L. 
R.  Co.,  24  Fed.  Rep.  151. 

l$M>.  Answer  tiled  by  stoekliolders. 
—  Where  stockholders  of  a  railroad  appear 
in  a  foreclosure  suit,  and,  by  leave  of  court, 
file  an  answer  in  the  name  of  the  company, 
such  answer  may  be  treated  as  that  of  the 
individual  stockholders,  but  not  as  the  an- 
swer of  the  corporation.  Bronson  v.  La 
Crosse  iS«  M.  R.  Co.,  2  Wall.  {U.  S.)  283.— 
Explained  in  Heath  v.  Erie  R.  Co.,  8 
Blatchf.  (U.  S.)  347.  Quoted  in  Central 
Trust  Co.  V.  Marietta  &  N.  G.  R.  Co.,  48 
Fed.  Rep.  14 ;  People  ex  rel.  w.  State  Treas- 
urer, 24  Mich.  468.  Reviewed  in  Kelley 
7'.  Mississippi  C.  R.  Co.,  2  Flipp.  (U.  S.)  581, 
I  Fed.  Rep.  564. 

200.  Cross-bill.— Leave  to  the  mort- 
gagor to  file  a  cross-bill  against  the  lessee 
of  the  railroad  and  the  mortgagees  seeking 
an  accounting  and  decree  terminating  the 
lease,  and  an  adjustment  between  the  mort- 
gagees of  their  liens,  will  not  be  granted 
when  it  is  not  necessary  for  the  protection 
of  the  rights  of  the  mortgagor  and  will 
tend  to  delay  the  proceedings.  Mercantile 
Trust  Co.  v.  Missouri,  K.  &•  T.  R.  Co.,  43 
Am.  &'  Eng.  R.  Cas.  469,  41  Fed.  Rep.  8. 

Original  defendants  in  a  suit  to  foreclose 
a  railroad  mortgage  cannot  be  allowed  to 
file  a  cross-bill,  after  a  decree  of  foreclosure, 
attacking  a  prior  lien  set  up  by  another  de- 
fendant, so  as  to  interfere  with  the  foreclo- 


II  ti 


'•}  ?, 


486 


MORTGAGES,  201-204. 


sure.  The  practice  of  filing  cross-bills  after 
the  case  has  been  heard  on  its  merits,  con- 
demned. Broiison  v.  La  Crosse  &^  M.  K. 
Co.,  2  niiick  {U.  S.)  528. 

A  railroad  company  filed  a  bill  to  enjoin 
a  sale  of  the  road  under  a  mortyiige.  One 
defendant  filed  a  cross-bill,  asking  a  dissolu- 
tion of  the  injunction,  and  that  tlie  prop- 
erty be  sold  under  tlie  mortgage,  but  the 
cross-bill  made  no  defendants,  and  asked 
for  no  process.  The  court  under  it  decreed 
a  foreclosure.  Hild,  that  the  irregularity 
in  the  pleadings  was  fatal  to  the  judgment. 
Washington,  A.  Sf  G.  R.  Co.  v.  Bradley,  10 
Wall.  (U.  S.)  299. 

aoi.  Petitiuii  of  intervention.— A 
bill  to  foreclose  a  mortgage  contained  the 
necessary  averments  to  show  that  enough 
bonds  secured  by  the  mortgage  were  out- 
standing to  entitle  plaintiff  to  institute  the 
proceeding,  but  made  no  reference  to  any 
of  the  bonds  having  been  pledged.  Aii  in- 
tervener filed  a  petition  in  which  he  made 
no  reference  to  the  pledge;  but  a  hearing 
before  the  master  revealed  the  facts  relating 
to  the  pledge,  and  the  intervener  excepted 
to  the  master's  report  sustaining  the  valid- 
ity of  the  pledge.  Held,  tliat  the  inter- 
vener could  not  be  expected  to  know  the 
facts  in  advance  of  the  hearing,  and  was, 
therefore,  not  prevented  from  filing  such 
exceptions  because  his  petition  did  not 
contain  any  allegation  charging  that  the 
pledge  of  the  bonds  was  invalid.  Farmers' 
L.  &^  T.  Co.  V.  San  Diego  Street-Car  Co.,  45 
Fed.  Rep.  518. 

202.  Reference  to  ninHter — Ascer- 
taining: priorities. — Where  a  court  finds 
that  certain  bonds  secured  by  a  mortgage 
sought  to  be  foreclosed  are  fraudulent  ex- 
cept as  to  bona  fide  holders  for  value,  the 
court,  is  not  bound  to  enter  judgment,  which 
involves  both  questions  of  law  and  fact,  as 
to  which  are  fraudulent,  but  may  refer  the 
matter  to  a  master  to  ascertain  and  report 
who  were  the  holders  of  tlie  bonds,  and  how 
they  have  been  acquired,  and  all  informa- 
tion necessary  to  enable  the  court  to  render 
final  judgment.  Central  Trust  Co.  v.  Ncv 
York  City  dr'  N.  R.  Co.,  18  Abb.  N.  Cas.  (N. 
v.)  381  ;  modifying  18  Abb.  N.  Cas.  64. 

A  reference  of  a  railroad  foreclosure  suit 
to  masters  to  "  ascertain  and  report  the 
whole  amount  of  rolling  stock  on  the  road, 
and  that  they  specify  the  quantity  thereof 
that  is  covered  by  this  mortgage,  also  in  the 
first  and   second    morrgages   respectively," 


did  not  require  the  masters  to  ascertain  and 
settle  the  priorities  between  the  different 
mortgages.  Minnesota  Co.  v.  St.  Paul  Co., 
2  Wall.  {l/.S.)  6og. 

20ii.  Proof  of  nniount  nnd  valid- 
ity of  the  bonds.— A  court  will  not  dis- 
miss a  bill  to  foreclose  a  railroad  mortgage 
given  to  secure  the  bonds  of  the  company, 
on  the  ground  that  there  are  no  bonds  le- 
gally outstanding,  where  it  appears  from 
the  affidavits  of  the  holders  of  some  of  the 
bonds  that  they  are  bona  fide  holders,  and 
that  the  testimony  of  other  witnesses  cor- 
roborates these  statements.  In  such  case 
proof  of  tlie  amount  and  validity  of  the 
bonds  will  be  determined  at  the  hearing. 
Guaranty  Trust  <S~«  S.  D.  Co.  v.  Green  Cove 
S.  Gr-  M.  R.  Co.,  45  Am.  <S»  Fng.  R.  Cas,  689, 
139  U.  S.  137,  II  Sup.  Ct.  Rep.  512. 

Where  a  proceeding  is  instituted  to  fore- 
close a  mortgage  to  secure  bonds,  it  is  not 
error  for  the  referee  to  include  in  his  esti- 
mate of  the  amount  of  bonds  due  certain 
bonds  which  had  been  pledged  by  the  com- 
pany, where  it  appears  that  it  failed  to  pay 
the  pledges,  and  the  bonds  have  been  sold 
and  the  liability  of  the  company  thereon 
fixed.  Peckv.  New  Yorker'  N.  J.  R.Co., 
iq  How.  Pr.{N.  Y.)  419;  appeal  dismissed 
in  85  N.  Y.  246. 

204.  Ascertaining^  cnrniuprs  and 
expenses.— Where  a  decree  in  a  foreclo- 
sure suit  directs  a  master  to  ascertain  the 
gross  earnings  and  expenses  of  a  certain 
section  of  a  road,  he  may  make  a  pro  rata 
estimate  of  the  earnings  and  expenses  of 
the  whole  road,  where  it  appears  that  such 
section  has  been  operated  with  the  rest  of 
the  road  and  no  separate  accounts  have  been 
kept.  Such  rule  may  not  lead  to  the  exact 
result  desired,  but  it  will  not  be  rejected 
where  it  appears  that  it  approximates  tin- 
result,  and  is  the  best  that  could  be  adopted. 
Pullan  V.  Cincinnati  (sr^  C.  A.  L.  R.  Co.,  5 
Biss.(U.S.)2yj. 

And  the  company  cannot  object  to  the 
rule  adopted  for  finding  the  gross  earnings 
and  expenses,  where  a  provision  of  its  char- 
ter requires  it  to  keep  separate  accounts  of 
such  section,  which  it  has  negligently  failed 
to  do.  Pullan  v.  Cincinnati  &^  C.  A.  L.  R. 
Co.,  5  Piss.  ([/.  S.)  237. 

Where  a  master  is  directed  to  ascertain' 
and  report  the  value  of  mortgaged  property, 
and  the  evidence  adduced  is  conflicting,  the 
report  of  the  master  valuing  the  property 
according  to  the  highest  estimates  will  not 


MORTGAGES,  UO.->  U01». 


48'; 


i 


be  set  aside  unless  it  appears  that  the  evi- 
dence fixiny  tiie  lower  vulue  was  entitled  to 
more  credit ;  and  tlie  party  exceptinsj;  to  the 
report  of  the  master  must  satisfy  the  court 
that  it  is  wrong.  Pnllaii  v.  Cincinnati  &^ 
C.  A.  L.  K.  Co.,  S  A'iss.  ((/.  S.)  237. 

205.  F  i  1  i  II };  iiitcri'upitorics.— 
Where  the  only  questions  involved  in  a 
foreclosure  suit  are,  whether  the  suit  is 
broui^ht  anfl  is  prosecuted  in  good  faith, 
and  whether  plaintiffs  are  entitled  to  a  de- 
cree of  foreclosure,  interrogatories  filed 
relating  to  plans,  acts,  or  intentions  of  par- 
ties touching  the  formation  of  a  new  com- 
piiny  to  buy  the  road  are  irrelevant,  and 
should  be  rejected.  Robinson  v.  Philadel- 
phia &*  R.  R.  Co.,  28  Fed.  Rep.  340. 

5.  Judgment  or  Decree. 

200.  "What  relief  may  be  graiit- 
e<l,  {•eiierally. — Where  there  are  several 
luortgages  on  the  same  railroad  property, 
and  there  is  no  community,  but  a  conflict- 
of  interests  between  the  parties  claiming 
under  them,  the  court  will  not  order  in  one 
decree  a  foreclosure  of  all  the  securities, 
and  order  a  sale  of  the  property  as  an  en- 
tirety. Wabash,  St.  L.  &^  P.  R.  Co.  v.  Cen- 
tral Trust  Co.,  17  Am.  &*  Eng.  R.  Cas.  li\, 
22  Fed.  Rep.  138. 

Where  matcrial-nien  intervene  in  a  fore- 
closure suit,  and  claim  a  superior  lien  on 
tile  property,  it  is  not  error  to  fail  to  give 
tiie  different  claimants  personal  judgments 
fur  tlicir  respective  claims.  Tod  v.  Ken- 
tucky Union  R.  Co.,  52  Fed.  Rep.  241,6  U. 
S.  App.  186,  3  C.  C.  A.  60.— Reviewing 
Davis  V.  Alvord,  94  U.  S.  545. 

P.  gave  a  mortgage  to  a  railroad  company 
as  a  security  for  the  performance  of  cer- 
tain work,  and  the  chancellor  rendered  a 
decree  of  foreclosure  of  the  mortgage  for  a 
balance  found  to  be  due  by  P.  to  the  com- 
pany on  an  account  stated  between  them. 
//(•/</,  that,  the  mortgage  being  a  mere  se- 
curity for  the  performance  of  work,  and 
not  for  the  payment  of  a  debt,  the  decree 
was  erroneous.    Petrie  v.   Wright,  14  Miss. 

647. 

307.  Provisions  for  the  payincnt 
of  bonds. — Where  a  railroad  mortgage, 
given  to  .secure  its  bonds  with  the  accruing 
interest,  provides  that,  upon  a  default  in 
paying  interest  or  principal,  all  bonds, 
principal  and  interest,  should  become  due, 
and  entitled  to  a  pro  rata  dividend  in  case 
of  foreclosure,  a  decree  which  gives  prece- 


dence to  past  due  coupons  is  erroneous. 
Dunham  v.  Cincinnati,  P.  &^  C.  R.  So.,  I 
Wall.  (i'.  S.)  254.  — Revii/.vk.I)  in  ."..evens 
.'.  New  York  &  ().  M.  R.  Co.,  13  Blatchf, 
(U.S.)  412. 

Under  a  forechjsure  of  a  railroad  mort- 
gage for  non-payment  of  interest  on  bonds, 
the  court  cannot  decree  that  the  principal 
sum  of  the  bonds  shall  at  once  become  due, 
and  direct  a  balance,  after  paying  interest 
and  costs,  of  the  fund  arising  from  the  sale 
to  be  applied  to  such  principal,  and  this 
though  the  bill  was  taken  pro  confesso. 
Ohio  C.  R.  Co.  V.  Central  Trust  Co.,  133  I/. 
S.  83,  10  .Sup.  Ct.  Rep.  235. 

A  decree  for  foreclosure  of  a  raiiroiid 
mortgage  securing  bonds  found  the  sum 
due  on  twenty-eight  bonds  pledged  by  the 
company  as  collateral  security  for  a  debt 
also  secured  by  a  deed  of  trust,  and  ordered 
sale  of  the  property,  subject  to  the  trust 
deed,  for  the  whole  sum  due  on  ail  the 
bonds,  and  that  the  bonds  so  pledged,  or 
the  judgment  thereon  in  the  foreclosure 
suit  and  the  personal  property  pledged, 
should  be  currendered.  Held,  that  the  lat- 
ter part  of  the  decree  neutralized  the  por- 
tion of  it  for  the  payment  of  the  twenty- 
eight  bonds,  and  was  no  decree  for  theit 
payment.  Galena  &^  S.  W.  R.  Co.  v.  Sta/il, 
103  ///.  67. 

208.    or     iiiiseeiireil     debts. — 

Mortgage  creditors  cannot  complain  of  a 
decree  requiring  payment  of  unsecured 
debts  due  by  the  company  before  the  filing 
of  the  bill  to  connecting  railroads  for  moneys 
it  had  collected,  when  tiieir  refusal,  because 
of  the  failure  to  pay  them,  to  continue  busi- 
ness relations  with  the  receiver  would  have 
greatly  diminished  the  receipts  and  injured 
the  business  of  the  road.  Meyer  v.  John- 
ston, 53  Ala.  237,  15  .//;/.  Ry.  A'ep.  467. 

20i>.  Provisi«ni,«i  as  res|»e«'(s  sale. — 
Where  the  litigation  is  likely  to  be  pro- 
tracted as  to  what  claims  shall  be  allowed 
against  a  mortgaged  railroad,  and  their  pri- 
orities, the  court  may  order  a  sale,  subject 
to  such  claims  as  shall  be  finally  adjudi- 
cated and  established  as  liens.  Turner  v. 
Didianapolis,  />'.  (3~»  II'.  R.  Co.,  8  /iiss.  {U. 
S.)  380. 

It  is  proper  that  the  sheriff  be  named  by 
the  decree  as  authorized  to  enforce  it  by 
making  Si.le  of  road,  roadbed,  and  franchise 
of  a  company  against  which  a  decree  of  fore- 
closure is  rendered.  Waco  Tap  R.  Co.  v. 
Shirley,  45  Tex.  355,  13  Am.  Ry.  Rep.  233. 


i!:|. 


488 


MORTGAGES,  '^lO,  211. 


Where  a  mortg.iKcc  (jf  real  estate  lias  re- 
ceived no  notice  of  the  assessment  of  dani- 
ai,'es  for  a  ri^jlit  of  way  over  it.  if  a  sale 
subject  to  the  right  of  way  would  be  insuf- 
Ikient  to  pay  the  ii)ort),'a^e  deljt,  llic  judvj- 
incnt  of  foreclosure  siiould  direct  a  sale  of 
the  right  of  way,  either  with  the  lot  or  in- 
<lependent  of  it,  as  shall  be  most  advan- 
tageous.    SiTi-r/ti  V.  C'o/i\  38  /o7i>a  463. 

In  foreclosing  a  mortgage  on  a  railroad 
which  exists  in  two  states,  the  decree  should 
direct  a  sale  of  the  entire  road,  the  sale  of 
the  portion  in  the  other  state  being  subject 
I')  existing  liens  in  that  state.  Hand  v. 
Siivaniiah  Sf  C.  K.  Co.,  12  So.  Car.  314. 

A  decree  in  a  foreclosure  suit  should 
name  an  upset  price  large  enough  to  cover 
the  josts  and  allowances  made  by  the 
court,  such  as  fees  to  the  master,  receiver, 
and  counsel,  and  enough  to  cover  receiver's 
certificates,  and  interest,  and  all  other  liens 
prior  to  the  bonds.  Ji/at'r  v.  S/.  Louis,  H. 
&^  K.  K.  Co..  25  Fed.  Rep.  232.— Distin- 
guished IN  Blair  v.  Walker,  26  Fed.  Rep. 

73- 

A  decree  in  a  railroad  foreclosure  suit 
which  orders  a  sale  for  non-payment  of  a 
greater  sum  than  is  actually  due  is  fatally 
erroneous.  Chicago,  D.  &*  V.  R.  Co.  v.  Fos- 
dick,  7  Am.  &>»  Eng.  R.  Cas.  427.  106  U.  S. 
47,  I  Sup.  67.  Rep.  10. 

A  decree  to  foreclose  a  mortgage  on  rail- 
road property  given  to  secure  bonds  which 
directs  a  sale  of  all  the  lands  covered  by 
the  mortgage  free  from  ail  liens,  mortgages, 
and  encumbrances  to  satisfy  certain  claims, 
without  nuiking  provision  for  other  bond- 
holders, subsequent  mortgagees,  or  other 
creditors  of  the  road,  is  fatally  defective. 
;V('7t/  Orleans  I'ac.  R.  Co.  v.  Parker,  143  U. 
S.  42;  12  Sup.  Ct.  Rep.  364,  affirming  33 
Fed.  Rep.  693. 

A  railroad  mortgage  contained  a  provi- 
sion that,  in  case  of  a  foreclosure,  the 
trustee  in  the  mortgage,  upon  the  request 
of  a  majority  of  the  bondholders,  should 
bill  in  the  property  for  the  benefit  of  the 
bondholders,  and  organize  a  new  company. 
Held,  thai  it  was  not  error,  in  a  foreclosure 
decree,  to  direct  the  trustee  to  bid  at  the 
sale  for  the  first  mortgasj;e  bondholders,  at 
least  to  the  amount  of  their  bonds.  Sage  v. 
Central  R.  Co.,  99  U.  S.  334. 

Ill  such  a  foreclosure,  th^.ugh  the  specific 
relief  sought  was  a  strict  foreclosure,  yet 
under  a  prayer  for  general  relief  it  was 
proper  for  the,  court  to  carry  out  the  pro- 


vision of  the  mortgage  by  directing  the 
trustee  to  bid  in  the  property,  a  majority  of 
the  bondholders  having  so  requested.  Sage 
V.  Central  R.  Co.,  99  U.  S.  334. 

It  was  proper  to  direct  the  trustee  to  con- 
vey the  property  to  a  new  corporation  or- 
gar.ized  by,  and  for  the  benefit  of,  the  l)ond- 
holders,  according  to  the  priority  of  their 
interests,  giving  a  power  of  management 
and  a  controlling  interest  to  the  first  mort- 
gage bondholders.  Sage  v.  Central  R.  Co., 
99  U.  S.  334.— yuoTKU  IN  Mackintosh  v. 
Flint  &  F.  M.  K.  Co.,  36  Am.  &  Eng.  R. 
Cas.  340,  34  Fed.  Rep.  582. 

Where  a  mortgage  of  a  railroad  provides 
that,  in  case  of  a  foreclosure,  the  mortgage 
trustee  should  bid  in  the  property  for  the 
benefit  of  the  bondholders,  it  is  not  error 
to  provide  in  a  foreclosure  decree  that  if 
any  one,  except  the  trustee,  became  the 
purchaser  he  should  pay  down  in  cash  a 
part  of  his  bid  as  earnest  money.  Sage  v. 
Central  R.  Co.,  99  U.  S.  334. 

3  to.  for  coiiveyuiice  by  niort- 

gn{;or. — Where  part  of  the  lands  covered 
are  in  another  state,  the  court  has  power  to 
decree  a  sale  of  the  whole,  and  may  require 
the  mortgagor  to  execute  a  conveyance  to 
the'  purchaser.  Where  a  provision  for  a 
conveyance  is  omitted  from  the  judgment, 
the  court  has  power  after  a  sale  to  amend 
the  judgment  by  inserting  therein  sucli  a 
provision.  Union  Trust  Co.  v.  Olmstead,  26 
Am.  &>  Eng.  R.  Cas.  61,  102  A^.  V.  729,  7 
A^.  E.  Rep.  822. 

211.  Conclusiveness  of  the  judg- 
ment or  decree,  Kenerally.— Where  a 
mortgage  is  to  trustees  to  secure  bondhold- 
ers, a  decree  in  a  foreclosure  suit,  where  the 
bondholders  are  represented  by  the  trustees, 
is  conclusive  upon  the  bondholders,  espe- 
cially where  they  were  present  and  had 
knowledge  of  the  proceedings,  and  actually 
appeared  at  times  and  obtained  certain  or- 
ders therein.  Huntington  v.  Little  Rock  &^ 
Ft.  S.  R.  Co.,  3  McCrary(U.  S.)  581,  \6 Fed. 
Rep.  go6. 

The  decree  entered  in  James  v.  Railroad 
Co.,  6  Wall.  752,  when  properly  construed, 
invalidated  the  foreclosure  of  the  mortgage 
made  by  the  La  Crosse  &  Milwaukee  R.  Co. 
to  plaintiff  in  error  only  as  to  the  creditors 
of  the  company  subsequent  to  the  mort- 
gage who  assailed  it  in  that  suit,  but  did  not 
affect  it  as  to  the  rights  of  plaintiff  in  error 
or  of  the  bondholders  secured  by  the  mort- 
gage, which  were  acquired  under  that  fore- 


wm§ 


'fla 


MORTGAGES,  212-215. 


48^» 


tlosurc.  Barnes  v.  Chicago,  M.  »3>*  Si.  P. 
h\  Co.,  30  Am.  &^  /•-■//;,'.  A".  Cas.  453,  122  L\ 
S.  1,  7  Sii/>.  Ct.  I<ef>.  1043 

212. of  jleeret!  pro  coiilesso,  or 

by  eoiiseut. — Contractors  having  a  claim 
aijainst  a  railroad  company  wliich,  by  the 
Pa.  Act  of  Jan.  21,  1843  (P.  L.  467),  is  para- 
mount to  tlie  lii'ii  of  a  subsequent  mon- 
^'age,  and  wiio  arc  made  parlies  defendant 
to  a  bill  of  foreclosure  of  said  mortgage, 
are  bound  by  a  decree  entered  against  them 
pro  confcsso  in  said  foreclosure  proceedings, 
lay  virtue  of  which  the  road  and  franchises 
of  tlie  company  are  ordered  to  be  sold  dis- 
cliargcd  of  all  liens,  and  cannot,  therefore, 
long  subsequently  assert  their  claim  as 
against  the  purchaser  at  said  sale.  Woods 
V.  /'ittsbiirt;/!,  C.  (&-  St.  L.  K.  Co.,  3  Am.  &^ 
Eiiff.  Ji.  Cas.  525,  7  Am,  <S-  Ettg.  A'.  Cas. 
478,  99  Pa.  St.  101. 

A  judgment  creditor  of  a  railroad  is 
bound  by  a  decree  rendered  in  a  foreclosure 
suit,  when  he  appears  by  attorney  and  con- 
sents to  the  decree,  though  not  a  party  to 
the  suit.  Bronson  v.  La  Crosse  &*  M.  R.  Co., 
2  Black  (U.  S.)  524. 

2i:t.  Aiiieiidiiieiits— Strikiug  out 
lirovisious.— Where  a  foreclosure  decree 
directs  the  company  to  deliver  to  the  re- 
ceiver certain  moneys  on  hand,  and  it  ap- 
pears that  they  are  unexpended  earnings  of 
the  property  not  included  in  the  mortgage, 
tliat  portion  of  the  decree  may  be  stricken 
out  on  motion.  Dow  v.  Memphis  &»  L.  R. 
R.  Co..  20  Fed.  Rep.  768. 

A  bill  to  foreclose  a  mortgage  on  a  street 
railway  in  a  city  made  the  city  a  defendant 
on  an  allegation  that  the  plaintiff  was  in- 
formed that  the  city  might  have  or  claim 
some  interest  in  the  pro|)erty,  but  no  claim 
or  demand  was  made  against  the  city ;  but 
the  judgment  entered  went  on  to  declare 
that  the  company  owned  certain  premises, 
with  the  right  to  lay  tracks,  construct  tun- 
nels, operate  a  railway,  and  do  many  other 
things  which  might  aflfect  the  city.  Held, 
that  the  judgment  affected  the  city  in  a 
manner  not  authorized  by  the  complaint, 
and  might  be  amended  on  motion.  Vaudcn- 
biaxk  V.  lifayor,  etc..  of  N.  Y.,  5  A'.  Y. 
Supp.  664;  affirmed  at  general  term  in  25 
/.  (^  5.  285,  28  .V.   Y.  S.  R.  578. 

214.  Setting;  aside  decree. — A  de- 
cree in  foreclosure  determining  the  owner- 
ship of  certain  rolling  stock  and  the  right 
to  its  possession,  and  finding  that  it  was 
assential  to  the  operation  of  the  road  by 


the  receiver  and  should  be  purchased  by 
him;  that  certain  amounts  should  be  paid 
foi  the  rentals,  and  that  the  purchase  price 
should  be  made  a  charge  upon  the  earnings, 
inco'M  ',  and  property  of  the  railroad  com- 
p.m; ,  and  that  any  balance  unpaid  at  the 
Jate  of  its  foreclosure  sale  should  be  a  first 
lien  upon  the  railroad  and  the  sale  should 
be  subject  thereto,  is  final  in  its  nature,  and 
cannot  be  vacated  by  the  court  of  its  own 
motion  at  a  term  subsequent  to  that  at 
which  it  was  entered.  Central  Trust  Co.  v. 
Grant  Locomotive  Works,  43  Am.  &^  Ei'-g. 
R.  Cas.  503,  135  U.  S.  207,  10  Sup.  Ct.  Rep. 
736. 

In  the  foreclosure  of  railway  mortgages, 
third  parties  should  not  be  allowed  to  dis- 
turb the  decree  without  giving  the  mort- 
gagor and  mortgagee,  who  are  the  parties 
principally  interested,  a  right  to  be  heard. 
Davis  V.  Mercantile  Trust  Co.,  152  U.  S. 
590,  14  Sup.  Ct.  Rep.  693. 

6.   Receivers, 

215.  Power  to  appoint  — DlHcre- 
tlon.  —  In  the  foreclosure  of  a  railroad 
mortgage  the  appointment  of  a  receiver  is 
not  a  matter  of  right,  but  rests  in  the  sound 
discretion  of  the  court,  and  is  a  power  to 
be  exercised  sparingly,  and  with  great  cau- 
tion. Farmers'  L.  &*  T.  Co.  v.  Kansas 
City,  W.  6-  A^.  W.  R.  Co.,  53  Fed.  Rep.  1S2. 
—Following  Milwaukee  &  M.  R.  Co.  v, 
Howard,  131  U.  S.  Ixxxi.  app'x. ;  Fosdick 
V.  Schall,  99  U.  S.  235;  Sage  v.  Memphis  & 
L.  R.  R.  Co.,  125  U.  S.  361,  8  Sup.  Ct.  Rep. 
887.  —  Williamson  v.  New  Albany,  etc. ,  R.  Co., 
I  Biss.  (U.  S.)  198.— Followed  in  Union 
Trust  Co.  V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  4 
Dill.  (U.  S.)  114.  Reviewed  in  Pullan  v. 
Cincinnati  &  C.  A.  L.  R.  Co.,  4  Biss.  35. 
■  To  dispossess  the  owner  of  property  be- 
fore a  final  hearing  is  a  strong  measure,  not 
to  be  adopted  except  in  a  strong  case,  and 
should  never  be  done  unless  without  it  the 
complainant  would  be  in  danger  of  suffer- 
ing irreparable  loss.  Pullan  v.  Cincinnati 
&•  C.  A.  L.  R.  Co.,  4  Biss.  ( U.  S.)  35. 

An  order  appointing  or  removing  a  re- 
ceiver in  a  railroad  foreclosure  suit  rests  in 
the  sound  discretion  of  the  court  below, 
and  cannot  be  reviewed  on  appeal.  Mil- 
waukee &*  M.  R.  Co.  V.  Howard,  131  f/.  S. 
Ixxxi,  rt//)'.r.— Followed  in  Farmers'  L.  & 
T.  Co.  V.  Kansas  City,  W.  &  N.  W.  R.  Co., 
53  Fed.  Rep.  182. 

Under  Cal.  Code  Civ.  Proc.  §  564,  pro- 


I 

I 


-k 

'E:^ 


ggg 


\iti 


400 


MORTGAGES,  215. 


vidiiif;  tlial  a  receiver  may  be  appointed  by 
tlie  ciiurt  in  which  tlic  iiction  is  pcndiiip;  in 
ail  cases  wliere  receivers  liavc  heretofore 
i)een  appoiiit':(i  by  the  usages  of  tlic  courts 
cif  i(|iiiiy,  the  district  court  may  ajipoint  a 
icci'iver  in  a  proceeding  to  foreclose  a  rail- 
ri  1,1(1  morttiaKe.  Sairamvitto  &*  /'.  A'.  Co,  v. 
Sitti  /''raiuisio  Superior  Court,  55  Cal.  453. 
— yi()iiN(;  Siiaw  T,  Norfoiic  County  R. 
Co.,  5  (Jray  (Mass.)  162;  American  Hrid^c 
C  >.  V.  Heidelijach.  94  U.  S.  798.  Ki:vii;w- 
iN(i  Shepley  7'.  Atlantic  it  St.  L.  K.  Co.  55 
Me.  305.— AlM'l.iKl)  IN  McLaiiei'.  Placervillc 
\-  S,  V.  U.  Co.,  26  Am.  &  lint,'.  K-  Cas.  404. 
f)C  C.d.  606, 

When  a  mortga(,'e  of  a  railroad's  debt  has 
i)ei-oir.e  due.  and  it  appears  that  the  inort- 
i;iii,'ed  property  is  prol)ably  insutficient  to 
disciiar^ic  it,  a  court  of  equity,  if  applied  to 
tJ  foreclose  the  mortgajje,  will  appoint  a  re- 
ciiver  to  secure  the  rents,  profits,  incomes, 
and  earnings  accruing  after  the  date  of  the 
appointment,  and  will  in  that  way  secure  to 
the  mortgagee  a  specific  equitable  claim  to 
ihem  to  make  good  the  deficiency.  But 
the  mortgagee  has  not  the  absolute  right  to 
demand  that  the  chancellor  shall  assist  him 
to  acquire  this  equitable  claim.  Dout^iass 
V.    Cliiii:,    12   Jius/i  (k'y.)  608,  18   Am.  h'y. 

Rep.  273. 

The  Civil  Code  affects,  and  to  some  de- 
gree extends  or  enlarges,  the  remedy,  but  it 
cannot  be  construed  as  enlarging  the  legal 
or  contract  rights  of  mortgagees,  and  as 
conferring  upon  them  the  absolute  and  un- 
qualified right  to  require  the  chancellor,  in 
eiilier  one  of  the  contingencies  provided 
f(}r,  to  sequestrate  for  their  exclusive  bene- 
fit the  rents,  profits,  and  incomes  of  the 
mortgaged  premises.  DoUf^lass  v.  Cline,  12 
Bush  (A'r.)6o8,  18  Am.  Ry.  Rep.  273. 

A  receiver  may  be  appointed  in  an  action 
to  foreclose  a  mortgage  "  where  it  appears 
that  the  mortgaged  property  is  in  danger  of 
being  lost,  removed,  or  materially  injured, 
or  that  the  condition  of  the  mortgage  has 
not  been  performed,"  etc.  The  latter  clause 
of  section  329,  "  and  that  the  property  is 
probably  insufficient  to  discharge  the  mort- 
gage debt,"  was  intended  to  aid  the  mort- 
gagee by  securing  as  far  as  possible  out  of 
the  thing  mortgaged,  and  its  rents,  profits, 
and  issues,  the  payment  of  iiis  claim.  Ne7v- 
pori  (3-«  C.  Ihhl^e  Co.  v.  Douglass,  1 2  A'us/i 
(Ay.)  673,  18  Am.  Ry.  Rep.  221. 

The  right  to  appropriate  rents,  etc.,  of 
mortgaged  property  was  a  legal  incident  to 


the  contract  of  mortgage  ao  long  as  the 
mortgagee  could  have  relief  at  l.iw  ;  and 
since  his  remedy  at  law  has  been  practically 
taken  away,  the  statute  authorizes  courts  oi 
equity  to  treat  it  us  an  equitable  incident, 
Nciiiport  &*  C.  Uridine  Co.  v.  Douglass,  12 
liuali  (Ky.)  673,  18  Am.  Ry.  Rep.  221. 

That  equities  of  third  parties  may  some- 
times so  far  intervene  as  to  estop  the  inorl 
gagce  from  claiming  the  full  benefit  of  tliis 
equitable  right  to  the  rents  does  not  mili- 
tate against  the  conclusion  that,  as  against 
the  mortgagor,  the  statute  provides  for  tin; 
iniei'position  of  courts  of  ecpiity  through 
receivers.  Newport  &•  C.  J>ri<tge  Co.  v. 
J)oui^/iiss,  12  Jius/i  (Ay.)  673,  18  Am.  Ry. 
Rep.  221. 

Obligations  relating  to  the  management 
of  uKjrtgaged  pnjperty  made  by  the  mortga- 
gor terminate  when  he  loses  power  to  con- 
trol the  property,  although  he  may  be  lialile 
to  an  action  on  the  contract,  Newport  ilr» 
C.  Rridi^e  Co.  v.  Dout^lass,  13  lius/i  (A'y.) 
673,  18  Am,  Ry,  Rep.  221. 

If  an  action  has  been  commenced  by  the 
attorney-general  on  behalf  of  the  people, 
alleging  that  a  railroad  corporation  is  in- 
solvent, and  praying  for  its  dissolution,  and 
a  temporary  receiver  is  appointed  therein, 
it  is  within  the  discretion  of  the  court,  not- 
withstanding such  action,  and  the  appoint- 
ment of  a  receiver,  to  authorize  the  com- 
mencement of  foreclosure  proceedings,  to 
appoint  a  receiver  therein  to  supersede  the 
receiver  appointed  in  the  people's  action,  to 
transfer  all  the  duties  of  the  receiver  in 
that  action  to  the  receiver  appointed  in  the 
foreclosure  action,  and  to  order  all  the 
property  covered  by  the  mortgages  to  be 
delivered  to  such  receiver.  Herring  v. 
New  York,  L.  E.  &*  IV.  R.  Co.,  35  Am.  &> 
Eng.  R.  Cas.  54.  105  .^V.  V.  340,  19  A/>/>. 
N.  Cas,  340,  12  N.  E.  Rep.  763,  7  N.  V. 
S.  R.  547 ;  affirtning  34  Hun  634,  mem. ,  63 
//(W.  Pr.  497. 

The  ground  on  which  courts  of  equity 
intervene,  either  by  injunction  or  by  the 
appointment  of  a  receiver,  is  the  prcser\'a- 
tion  of  the  property  and  securities,  either  or 
both,  which  constitute  the  subject-matter  of 
the  litigation  pending  the  controversy.  But 
where  the  mortgagor  or  his  assigns  are  in 
possession,  and  denying  the  right  of  the 
mortgagee  to  a  foreclosure,  the  court  will 
not,  '.,.<,•  preliminary  injunction,  predicated 
OP  1 1) ;  mortgagee's  asserted  right  at  law  as 
mortgagee,  transfer  to  him  the  possession 


1  I 


MORTGAGES,  21(1.217. 


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pending  the  liliRation ;  the  most  that  can 
be  dune  in  kucI)  cases  is  to  ajipoint  a  re- 
ceiver for  tlie  purposes  only  of  preserving 
the  property,  and  its  rents  and  prulUs,  from 
waste  and  diversion.  And  even  were  the 
object  of  the  bill  to  enforce  a  specific  pro- 
vision in  a  deed  for  the  taking  of  posses- 
sioji  on  default  and  demand  of  payment, 
and  an  injunction  were  asked  for  to  elTect  a 
transfer  of  the  possession  pending  the  liti- 
gation, the  same  rule  and  reason  would  ap- 
ply as  in  case  of  a  suit  for  the  foreclosure 
of  an  ordinary  mortgage,  while  the  ques- 
tion of  the  right  of  possession  should  be  in 
litigation,  and  would  be  effectual  against  the 
granting  of  an  injunction.  Clieet'cr  v.  Rut- 
land il~  />'.  R.  C'tf.,  39  r/.  653,  4  Am.  Ry. 
Ri-f<.  V)\. 

'*  1^1.  GroiiiidN  for  nppniiitniviit, 
and  when  proper.*— Where  a  railroad 
company  makes  default  in  the  payment  of 
liie  interest  on  its  mortgage  indebtedness, 
and  the  mortgaged  property,  consisting  of 
its  road  and  other  property,  is  inadequate 
security  for  the  mortgage  debt,  and  the  com- 
pany is  insolvent  and  appropriating  its  earn- 
ings to  its  own  use,  a  receiver  will  be  ap- 
pointed, during  the  pendency  of  a  bill  filed 
bv  the  mortgagee,  to  be  put  in  possession 
of  the  mortgaged  property.  Dmv  v.  Mem- 
phis <S-  /-.  R.  R.  Co.,  17  Am.  &^  Eng.  R.  Las. 
324,  20  Fed.  Rep.  260. 

Where  a  railroad  1600  miles  long  is  mort- 
gaged for  $28,000  a  mile,  tlie  interest  in 
arrear  being  $1,000,000,  and  the  business 
being  on  the  decrease,  and  apparently  liable 
to  further  decrease,  thc-e  being  a  lack  of 
iiarmony  as  to  its  management  among  the 
owners,  a  receiver  will  be  appointed  upon  a 
foreclosure  under  a  second  mortgage.  Mer- 
Citiiti'le  Trust  Co.  v.  Missouri,  A'.  i?-»  T.  R. 
Co.,  36  -■/;//.  &^  F.ii^.  R.  Cits.  259,  36  Fed.  Rep. 
221.— Following  Galveston,  H.  &  H.  R. 
Co.  7/.  Cowdrey,  11  Wall.  (U.  S.)  463;  Gil- 
man  7'.  Illinois  &  M.  Tel.  Co.,  91  U.  S.  603; 
Dow  V.  Memphis  &  L.  R.  R.  Co.,  124  U.  S. 
652,  8  Sup.  Ct.  Rep.  673. 

Where  the  proceeding  is  to  foreclose  a 
mortgage  on  railway  property,  a  receiver 
should  not  be  appointed  where  it  is  clear 
that  the  property  would  sell  for  enough  to 
pay  the  debt,  interest,  and  C'sts.  Pullan  v. 
Cincinnati &*  C.  A.  L.  R.  Co.,^  Biss.  (U.  S.) 
Z± 

•Appointment  of  receivers  to  collect  rents 
and  profits  01  mortgaged  property,  see  note,  27 
Am.  St.  Rkp.  794. 


Under  Kan.  Comp.  Laws,  ?  3983,  no  order 
for  the  sale  of  mortgaged  railroad  property 
with  a  waiver  of  appraisement  can  be  made 
until  six  months  after  the  decree  of  foreclo- 
sure; and  after  such  foreclosuri;  the  income 
of  the  road  should  be  received  by  a  trustee 
for  the  benefit  of  the  bondholders  until  the 
time  of  sale;  and  the  fact  that  certain  bond- 
liolders  are  in  possession  to  the  exclusion 
of  others  is  good  reason  for  the  appoint- 
ment of  a  receiver,  lienedict  v.  ,.SV.  Joseph 
&*  IV.  R.  Co.,  14  //;«.  &-  Fut^r^  /('.  Cas.  609, 
\^  Fed.  Rep.  173— lixi'iAiMNi;  Hammock 
V.  Loan  &  T.  Co.,  105  U.  S.  86. 

217.  When  a  receiver  will  be  re- 
fiiHed. — Ordinarily  a  receiver  ought  not  to 
be  appointed  unless  the  right  to  foreclose 
is  clear  and  indisputable.  American  I..  <5«» 
T.  Co.  v.  Toledo,  C.  &•  S.  R.  Co.,  29  Fed.  Rep, 
416. 

A  court  of  equity  may  interfere  by  in- 
junction to  prevent  tlie  waste  or  distribu- 
tion of  mortgaged  railroad  property  before 
the  right  to  a  foreclosure  has  accrued,  but  it 
will  not  appoint  a  receiver  to  manage  the 
property  before  that  time.  American  L.  &* 
r,  Co.  V.  Toledo,  C.  &^  S.  R.  Co.,  29  Fed.  Rep. 
416. 

Whatever  may  be  the  powers  of  a  court 
of  equity  to  construct  railroads,  or  to  man- 
age them  through  receivers,  these  powers 
must  be  exercised  as  an  adjunct  to  the  ju- 
risdiction of  enforcing  some  of  the  well- 
understood  equitable  rights  of  the  parties 
in  relation  thereto.  The  court  has  no 
power  to  appoint  a  receiver  for  the  manage- 
ment of  the  property  merely  upon  a  disa- 
greement of  those  interested  as  to  how  it 
should  be  managed.  American  L.  &-*  T. 
Co.  V.  Toledo,  C.  <S-  S.  R.  Co.,  29  Fed.  Rep. 
416. 

Even  after  default  in  the  payment  of  in- 
terest, a  receiver  will  not  be  appointed  if 
the  company  appears  to  have  a  reasonable 
excuse,  or  where  the  time  of  payment  has 
been  extended,  at  least  until  the  right  to 
foreclose  has  been  determined.  American 
L.  &'  T.  Co.  v.  Toledo,  C.  &-  S.  R.  Co.,  29 
Fed.  Rep.  416. 

The  mere  fact  that  there  has  been  a  de- 
fault in  the  payment  of  the  debt  is  no 
ground  for  the  appointment  of  a  receiver 
unless  there  be  a  stipulation  in  the  mortgage 
that  the  mortgagee  shall  have  the  rents. 
Tysen  v.   JVal/as/i  R.  Co..  8  Riss.  ((/.  S.)  247. 

Where  a  proceeding  has  been  instituted 
to  foreclose  a  mortgage  on  a  division  of  a 


*  ,, 

■i    1 1 


pipaq 


*Hi 


111 


492 


MORTGAGES,  U18,  210. 


road,  and  receivers  have  been  appointed, 
the  properly  will  not  be  turned  over  to  such 
receivers  at  the  application  of  the  trustees 
where  negotiations  are  peiidinfj  for  a  sale  of 
tlie  <'ntire  railroad  system  under  a  general 
mortgage.  Central  Trust  Co.  v.  Wabash, 
St.  I..  &^  P.  R.  Co.,  25  Fed.  Rep.  693. 

Wiiere  a  railroad  charter  empowers  the 
(c'liipany  to  confer  upon  its  mortgagees  the 
'  iijlit  of  possession  upon  common  law  con- 
<li  ions,  or  upon  any  other  conditions  that 
\\\,\\  be  agreed  upon,  as  they  already  have 
a  right  of  possession  wliich  they  may  en- 
force by  ejectment,  a  court  of  equity  will 
nut  grant  a  receiver  to  take  possession 
ixinding  a  foreclosure.  Rice  v.  St.  Paul  &> 
P.  R.  Co.,  24  A/i/in.  464. 

A  provision  ina  railroad  mortgage  autlior- 
izrd  the  trustees  upon  default  to  take  pos- 
session of  the  mortgaged  property,  and  to 
have,  hold,  and  use  the  same,  "operating  by 
their  superintendents,  managers,  receivers, 
or  servants,  or  their  attorneys  or  agents." 
Held,  that  the  receivers  here  mentioned  were 
not  technical  receivers  appointed  by  the 
court,  but  the  receivers  of  the  trustees.  Rt'ce 
v.  St.  Paul  &^  P.  R.  Co.,  24  J///'«.  464.— 
Foi.l.OWEP  IN  Rice  V.  First  Div.  St.  P.  &  P. 
R.  Co.,  24  Minn.  473,  «. 

A  decree  of  foreclosure  of  a  railroad 
mortgage  was  entered  by  consent,  and  the 
property  sold,  and  a  new  company  organ- 
ized which  took  charge  of  the  road.  After 
the  sale  the  stockholders  of  the  old  corpora- 
tion met  and  passed  a  resolution  repudiating 
the  action  of  the  directors  in  consenting  to 
the  sale,  and  appoint  ;d  a  committee  to  take 
charge  of  their  interests.  Under  this  au- 
thority an  appeal  was  taken,  and  pending 
the  appeal  a  motion  was  made  for  a  receiver. 
Without  deciding  whether  a  case  might 
arise  where  the  court  would  appoint  a  re- 
ceiver— /leld,  that  it  should  not  be  done  in 
this  case.  Pacific  R.  Co.  v.  Ketchum,  95 
U.S.  I. 

218.  Tlio  application,  notice,  etc. 
— New  York  Act  of  1883,  ch.  378,  which 
requires  an  application  for  the  appointment 
of  a  receiver  of  a  corporation  to  be  made  at 
a  special  term  in  the  judicial  district  in 
which  the  principal  office  of  the  corporation 
is  located,  does  not  relate  to  the  appoint- 
ment of  a  receiver  of  property  pending  a 
foreclosure.  It  only  relates  to  statutory  re- 
covers pending  a  suit  to  wind  up  a  corpora- 
tion and  distribute  its  assets.  United  States 
Trust  Co.  v.  New   York,  IV.   S.    d^  li.  R. 


Co.,  35  //««  (A',  v.)  341 ;  reversing^-]  How. 
Pr.  390,  6  Civ.  Pro.  90. 

And  under  the  above  statute  notice  to  the 
attorney-general  for  the  appointment  of  a 
receiver  in  a  foreclosure  suit  is  not  neces- 
sary. Notice  to  the  attorney-general  is 
only  necessary  where  tiie  proceeding  is  to 
wind  up  a  corporation,  or  to  distribute  its 
assets.  Whitney  v.  New  York  &*  A.  R.  Co., 
66  Ho7v.  Pr.  (N.  Y.)  436,  32  Hun  164,  5 
Civ.  Pro.  118. 

21U.  Iniposin;;  terms  or  condi- 
tions upon  appointing;  a  receiver.— 
In  appointing  a  receiver  in  a  railroad  fore- 
closure suit  the  court  may  impose  such 
conditionsas  appear  to  be  just  and  equitable, 
ani.  the  party  asking  for  and  accepting  the 
appointment  on  such  conditions  will  be 
bound  thereby.  Farmers'  L.  &•  T.  Co.  v. 
Kansas  City,  W.  &*  N.  W.  R.  Co.,  57  Am. 
&-  Eng.  R.  Cas.  174,  53  Fed.  Rep.  182.— 
Quoting  Fosdick  7>.  Schall,  99  U.  S.  235. 

Equitable  co^iditions  may  be  imposed 
upon  the  appointment  of  a  receiver.  The 
prayer  of  the  mortgagees  of  a  railroad  to 
have  the  incomes  and  earnings  anticipated 
and  distributed  to  them  as  part  and  parcel 
of  the  mortgaged  estate  can  be  granted 
only  upon  the  idea  that  their  superior  equi- 
ties entitle  them  to  that  relief.  They  cannot 
demand  it  as  a  legal  right.  They  cannot, 
therefore,  be  heard  to  complain  that  in 
granting  them  equitable  relief  as  to  those 
incomes  and  earnings  the  chancellor  has 
imposed  conditions  unless  those  conditions 
are  unjust  and  unreasonable.  Douglass  v. 
Cline,  12  Bush  (A>.)  608,  18  Am.  Ry.  Rep. 

273. 

When  a  court  of  chancery  is  asked  by 
mortgagees  to  appoint  a  receiver  of  railroad 
property  pending  proceedings  for  foreclo- 
sure, the  court,  in  the  exercise  of  a  sound 
judicial  discretion,  may,  as  a  condition  of 
issuing  the  necessary  order,  impose  such 
terms  in  reference  to  the  payment  from  the 
income  during  the  receivership  of  outstand- 
ing debts  for  labor,  supplies,  equipment,  or 
permanent  improvement  of  the  property  as 
may  under  the  circumstances  of  the  case 
appear  to  be  reasonable.  Union  Trust  Co. 
V.  Souther,  11  Am.  &*  Eng.  R.  Cas.  707,  107 
U.  S.  591,  2  Sup.  Ct.  Rep.  29^.— Distin- 
guished IN  American  L.  &  T.  Co.  v.  East  & 
W.  R.  Co.,  46  Fed.  Rep.  loi. 

If  no  such  order  is  made  at  the  time  the 
receiver  is  appointed,  it  may  be  done  at  any 
time  during  the  progress  of  the  cause,  if  re- 


IV. 

le 
a 

s- 
is 
to 

its 


MORTGAGES,  220-ti2'J. 


498 


quired  in  the  due  administration  of  justice 
and  lire  enforcenjent  of  tlie  equities  of  the 
n^speciive  parties.  Addison  v.  Li'wis,  9  Am. 
il^  En^.  A'.  Cii.i.  702,  75  Fu.  701.  Central 
Trust  Co.  V.  St.  Louis,  A.  &>  T.  R.  Co.,  42 
.lm.&^  En>[.  A'.  Cas.  26,  41  Fed.  Rep.  551. — 
I'uLLOwiNG  Fosdicl:  v.  Scliail,  99  U.  S.  235 ; 
Klair  V.  St.  Louis,  H.  &  K.  R.  Co.,  22  Fed. 
Kep.  471.— FoLLOWKU  IN  Farmers'  L.  &  T. 
Co.  V.  Kansas  City.  W.  &  N.  VV.  R.  Co..  53 
Fed.  Rep.  182. — Douglass  v.  Cline,  \2  Hush 
{Ky.)  608,  18  Am.  Ky.  Rep.  273.— Follow- 
ing Maysville  &  L.  R.  Co.  z/.  Punnett.  15  B. 
Mon.  (Ky.)  47. 

VVliere  a  company  has  been  in  default  in 
tile  payment  of  interest  on  its  mortgage 
i)()iuis  for  more  than  a  year  before  a  bill  is 
fed  to  foreclose,  tie  receiver  should  be 
required  to  pay  all  the  debts  and  liabilities 
of  the  company  incurred  in  operatin<;  or  im- 
proving the  road  for  six  months  before  the 
tiling  of  the  bill  as  a  condition  upon  which 
he  will  be  appointed.  Dow  v.  Memphis  &f 
L.  R.  R.  Co.,  17  Am.  &^  Ettg.  N.  Cas.  324.  20 
Fed.  Rep.  260. 

And  as  further  conditions  for  the  appoint- 
ment of  a  receiver  in  such  case,  a  general 
license  should  be  given  to  sue  the  receiver 
in  any  court  for  liabilities  incurred  in  oper- 
ating the  load  ;  and  the  debts  which  the 
receiver  is  required  to  pay.  a..^  debts  and 
liabilities  incurred  -n  operating  the  road, 
should  be  made  a  first  lien  on  the  property, 
and  the  plaintiffs  in  the  foreclosure  suit 
should  be  required  to  piosecute  it  to  a  final 
decree  with  all  diligence ;  otherwise  the 
receiver  should  be  discharged  by  the  court 
on  its  own  motion.  Do7v  v.  Memphis  &^  L. 
R.  R.  Co.,  \7  Am.  &*  Eng.  /.'.  Cas.  324,  20 
Fed.  Rep.  260. 

Where  the  court  as  a  condition  of  appoint- 
ing a  receiver  in  foreclosure  proceedings, 
instituted  by  a  trustee  of  a  railroad  mort- 
gage, required  the  trustee  to  consent  that 
the  debts  due  from  the  railroad  company 
forticketart'd  freight  balances,  and  for  work, 
iiiatcriais,  machinery,  fixtures,  and  supplies 
of  every  kind  and  character  done,  performed. 
or  furnished  in  the  construction,  repair, 
equipment,  or  operation  of  the  road  and  its 
branches,  and  liabilities  incurred  by  said 
company  in  the  transportation  of  freight  and 
passengers,  together  with  all  debts  and  liabil- 
ities incurred  bythesaid  receiver  in  operating 
the  road,  should  constitute  a  lien  on  said 
property,  and  all  property  appurtenant 
thereto,  paramount  to  the  lien  of  the  mort- 


gage set  out  in  the  bill,  the  bondholders 
were  bound  by  such  assent  of  the  trustee. 
where  it  was  apparent  that  the  trustee  had 
performed  its  duty  fully  and  in  good  fiiith. 
and  their  motion  to  be  made  parties  to  the 
suit  was  properly  denied.  Farmers'  L.  &-> 
T.  Co.  V.  Kansas  City,  W.  Gr' N.  VV.  R.  Co., 
57  Am.  &^  Eng.  A'.  Cas.  174.  53  Fed.  Rep. 
182.— Quoting  Forbes  v.  Memphis,  E.  P.  & 
P.  R.  Co.,  2  Woods  (U.  S.)  323. 

220.  Kcceiver's  title  or  ]m>ss(>s- 
siuii. — When  a  receiver  has  been  appointed 
pending  the  foreclosure  of  a  mortgage  upon 
a  railroad,  the  receivership  will  be  extended 
over  a  portion  of  the  road  upon  which  a 
prior  lien  is  claimed  on  the  application  of 
the  claimant.  Mercantile  Trust  Co.  v. 
Missouri,  A".  <S-  T.  A\  Co.,  43  Am.  <S-  Flng. 
A'.  Cas.  469,  41  Fed.  Rep.  8. 

221.  Duration  oftliereceivcrslii|>. 
— The  modern  practice  of  transferring  cor- 
porate property  to  the  custody  of  the  courts 
to  be  held  and  managed  for  an  indefinite 
period,  to  suit  the  convenience  of  parties, 
is  regarded  as  a  mischievous  innovation. 
Such  property  should  only  be  pbrcd  in  the 
hands  of  a  receiver  during  foreclosure  pro- 
ceedings for  temporary  preservation,  and 
should  pass  to  the  owners  with  as  little 
delay  as  posible.  Taylor  v,  Philadelphia  &• 
/v'.  A'.  Co.,  3  Am.  &^ Eng.  R.  Cas.  177,  <)Fed. 
Rep.  I. 

222.  Powers  and  duties,  gt^iierally 
—Control  of  court.*— The  ordinary  du- 
ties of  a  leceiver  in  a  foreclosure  suit  are  in 
aid  of  the  mortgagee,  by  collecting  tlie  rents 
and  preserving  the  property  froii  loss  and 
decay.  In  railway  foreclosures,  his  duties, 
though  more  extensive,  are  primarily  the 
same ;  the  appointment  is  presumed  to  be 
for  the  benefit  of  the  mortgagees  and  for  the 
protection  of  their  interests.  New  Jersey 
Midland  R.  Co.  v.  M^ortendyke,  27  N.  J.  Eq. 
658  ;  reversing  27  N.J.  Eq.  1 10. 

A  court  of  chancery,  in  the  progress  of  a 
foreclosure  suit  against  a  railroad  company, 
ought  not  to  enter  upon  the  work  of  build- 
ing or  completing  a  railroad  unless  there  is 
an  irresistible  necessity  to  do  so  in  order  to 
prevent  a  great  and  certain  sacrifice  of  the 
rightsand  securities  of  the  parties  in  interest. 
Kennedy  v.  St.  Paul  6-  P.  R.  Co.,  5  Dill. 
(i/.5.)Si9. 


*  General  powers  and  duties  of  receivers  ap- 
pointed in  foreclosure  oroceedings,  see  note,  11 
L.  R.  A.  480. 


I 

I 

! 


n. 


r. 


494 


MORTGAGES,  223-226. 


Tlie  receiver,  appointed  in  a  suit  in  equity 
to  foreclose  a  mortgage  of  a  railroad,  can- 
not maintain  a  suit  to  recover  earnings  of 
the  road  accruing  before  his  appointment. 
iVryw  V.  Rich,  52  iMc.  115.— Referring  to 
Mason  v.  York  &  C.  R.  Co.,  52  Me.  82. 

Wiiere  a  road  running  through  three 
states  is  mortgaj^ed  in  each,  and  a  foreclo- 
sure suit  is  brought  in  each  state,  and  the 
Siinie  person  is  appointed  receiver  by  each 
court,  and  receiver's  certificates  are  issued, 
tiie  action  of  the  courts  is  concurrent  in 
producing  and  creating  the  certificates,  and 
each  may  direct  them  to  be  paid.  In  re 
United  States  Rolling  Stock  Co.,  57  How.  Pr. 
(A-.  Y.)  16. 

223.  Powers  and  duties  in  the  op- 
eration of  the  road.— Where  a  railroad 
company  contracts  to  carry  marble  to  a 
designated  point,  with  a  privilege  of  putting 
it  (jfl  at  an  intermediate  point  to  be  dressed, 
and  then  reshipping  witliout  extra  charge, 
a  receiver  appointed  in  a  foreclosure  suit 
cannot  be  compelled  to  carry  it  from  tlie' 
intermediate  point  to  the  place  of  destina- 
tion, although  the  freiglit  has  been  paid 
before  the  receiver  was  appointed.  Central 
Trust  Co.  V.  Marietta  &•  A'.  G.  R.  Co.,  51 
Fed.  Rep.  15.  — Following  Southern  Exp. 
Co.  V.  Western  N.  C.  R.  Co.,  99  U.  S.  191. 

To  require  the  receiver  in  such  case  to 
carry  the  marble  from  the  intermediate 
point  to  the  place  of  destination  would  be 
equivalent  to  requiring  him  to  pay  the  ship- 
pers in  money  the  amount  of  freight  which 
iiad  already  been  paid,  and,  as  the  shipper 
has  no  lien,  such  could  not  be  done.  Cen- 
tral Trust' Co.  V.  Marietta  &>  N.  G.  K.  Co., 
51  Fed.  Rep.  15. 

While  a  receiver  appointed  pendente  lite, 
in  an  action  to  foreclose  a  railroad  mortgage, 
is  charged  with  the  duty  of  operating  the 
road  pending  the  action,  the  corporation  is 
not  dissolved  by  the  appointment ;  the  re- 
ceiver does  not  represent  the  corporation  in 
its  individual  or  personal  character,  or  su- 
persede it  in  the  exercise  of  its  corporate 
powers,  except  so  far  as  the  mortgaged 
property  is  concerned,  and  in  every  respect 
except  the  possession  and  management  of 
the  mortgaged  property  the  corporation  is 
free  to  exercise  its  franchises.  Decker  v. 
Gardner,  48  Am.  &*  Eng,  R.  Cas.  683,  1 24 
A^.  Y.  334,  26  N.  E.  Rep.  814.  36  N.  V.  S.  R. 
267. 

224.  Power  to  lease  connectingr 
lines.— When  the  business  of  a  railroad 


company  consists,  in  part  at  least,  of  the 
through  transportation  of  freiglit  from  a 
point  beyond  its  terminus,  it  is  within  the 
power  of  the  court  to  direct  the  receiver  to 
lease  a  railroad  connecting  with  such  point 
without  notice  to  the  parties  to  the  suit. 
Mercantile  Trust  Co.  v.  Missouri,  K.  &^  T. 
R.  Co.,  43  Am.  &*  Eng.  R.  Cas.  469,  41  Fed. 
Rep.  8. 

225.  lielatiou  between  receiver 
and  bondholders. — Where  a  receiver  is 
appointed  in  foreclosure  for  the  beneht  of 
bondholders,  he  is  the  agent  of  such  bond- 
holders and  the  mortgage  trustees,  and  a 
judgment  by  a  court  of  competent  juris- 
diction against  the  receiver  binds  the  bond- 
liolders.  Turner  v.  Indianapolis,  B.  &*  IV. 
R.  Co.,  8  Biss.  (U.  S.)  527. 

22U.  Application  of  assets  in 
hands  of  receiver,  generallj-.— When 
the  court  orders  a  receiver  of  a  railroad  to 
pay  certain  claims  for  expenses,  pending  a 
foreclosure,  the  assignee  of  such  a  claim  has 
the  same  right  to  payment  as  the  (original 
holder.  Union  Trust  Co.  v.  Walker,  107 
U.  S.  596,  2  Sup.  a.  Rep.  299. 

The  fact  that  a  receiver  is  appointed  in  a 
foreclosure  suit  without  providing  that  it 
shall  be  upon  condition  that  he  pay  current 
expenses  of  the  road  then  due  does  not 
prevent  the  court  from  subsequently  allow- 
ing such  expenses.  Blair  v.  St.  Louis,  H. 
&^  K.  R.  Co.,  22  Fed.  Rep.  471.— ApI'LIEU 
IN  Bound  V.  South  Carolina  R.  Co., 47  Fed. 
Rep.  30.  Followed  in  Central  Trust  Co. 
V.  St.  Louis,  A.  &  T.  R.  Co.,  42  Am.  &  Eng. 
R.  Cas.  26,  41  Fed.  Rep.  551. 

Where  there  are  no  surplus  funds  in  the 
hands  of  a  receiver,  he  will  not  be  directed 
to  pay  certain  expenses  attending  negotia- 
tions between  bondholders  looking  toward 
a  sale  of  the  road  and  a  reorganization  of 
the  company,  where  it  does  not  certainly 
appear  that  the  negotiations  will  result  in 
any  advantage.  Central  Trust  Co.  v.  Wa- 
bash, St.  L.  &-  P.  R.  Co.,  25  Fed.  Rep.  69. 

Where  a  town  has  no  lien  on  a  street-car 
company  for  the  cost  of  grading  and  mac- 
adamizing the  street  along  the  track,  a  re- 
ceiver in  a  foreclosure  suit  will  not  be  di- 
rected to  pay  the  cost  of  such  work  in 
obedience  to  an  ordinance  of  the  town 
trustees.  Union  L.  &*  T.  Co.  v.  Southern 
Cat.  Motor  Road  Co.,  49  Fed.  Rep.  267. — 
Following  Ellis  v.  Boston,  H.  &  E.  R. 
Co.,  107  Mass.  I  ;  Southern  Exp.  Co.  v. 
Western  N.  C.  R.  Co.,  99  U.  S.  191. 


IP 


MORTGAGES,  227,  228. 


495 


The  receiver  holds  the  rents,  issues,  and 
profits  for  the  protection  of  tlie  mortgagee, 
and  the  fund  in  his  hands  cannot  be  dis- 
posed of  by  the  mortgagor  in  any  way  to 
the  prejudice  of  the  mortgagee.  Nor  can 
crediLors  of  the  mortgagor,  by  attachment 
or  garnishment,  secure  a  more  favorable 
footing  than  that  held  by  the  debtor.  AVrc- 
/lor/  «5-  C.  Bridge  Co.  v.  Douglass,  1 2  Bush 
(AV.)  673,  18  Am.  Ry.  Kep.  221. 

2-7. of  income  «n'  vnruin^s. — 

Where  bondholders  bring  a  suit  to  fore- 
close and  ask  the  appointment  of  a  receiver, 
the  court  may,  in  its  discretion,  require  him 
to  i'lJply  the  net  income  of  the  road  to  the 
payment  of  employes  and  material-men  who 
have  furnished  labor  and  materials  neces- 
sary for  the  road  before  the  receiver  was 
appointed.  Taylor  v.  Philadelphiii  <&*  R. 
R.  Co.,  7  Fed.  Rep.  377.— Quoting  Trotter 
7'.  Catawissa,  W.  &  E.  R.  Co.,  (Pa.)  Sup.  Ct. 
Jan.  Term  i860.  No.  8. 

Such  claims  may  be  paid  by  receiver's 
certilicates  bearing  interest,  and  payable 
out  (jf  the  future  earnings,  at  such  dales  as 
the  receiver  may  afterwards  fix.  Titylor  v. 
Phihutclphia  &^  R.  R.  Co.,  7  Fed.  Rep.  377. 

Claims  against  a  railroad  company  for 
supplies  furnished  on  a  running  account 
and  under  a  continuous  contract  should  be 
directed  paid  by  a  receiver  out  of  the  net 
income,  instead  of  the  corpus  of  the  prop- 
erty. United  States  Trust  Co.  \.  New  York, 
II'.  S.  &*  B.  R.  Co.,  2$  Fed.  Rep.  797.  —Fol- 
lowing Burnham  v.  Bowen,  iii  U.  S.  776, 
4  Sup.  Ct.  Rep.  675. 

Where  a  mortgaged  railroad  runs  through 
several  states,  and  an  original  bill  is  filed  in 
one  state  to  foreclose,  and  ancillary  bills  in 
the  other  states,  a  judgment  creditor  of  the 
CMinpany  who  is  seeking  payment  of  his 
claim  out  of  earnings  on  hand  at  the  time 
the  receiver  was  appointed  should  apply  to 
the  court  where  the  original  bill  was  filed. 
Central  Trust  Co.  v.  East  Tenn.,  V.  &•  G.  R. 
Co.,  30  Am.  &•  Eng.  R.  Cas.  450,  30  Fed.  Rep. 
895.— Followed  in  Easton  v.  Houston  & 
T.  C.  R.  Co.,  39  Am.  &  Eng.  R.  Cas.  588.  38 
Fed.  Rep.  1 2 ;  Clyde  v.  Richmond  &  D.  R. 
Co.,  56  Fed.  Rep.  539. 

There  is  a  distinction  between  the  net 
earnings  of  a  railroad  operated  by  a  receiver 
and  the  ordinary  rents  and  profits  of  lands 
and  tenements.  The  receiver  of  a  line  of 
railways  is  not  the  mere  passive  agent  or 
officer  of  the  court  charged  with  the  single 
duty  of  preserving  the  property  and  collect- 


ing the  rents,  etc.  The  net  earnings  de- 
pend very  greatly  upon  his  experience  and 
skill  as  a  railway  operator,  and  upon  the 
energy  and  fidelity  he  may  display  in  the 
discharge  of  his  duties.  The  mortgagees 
have  no  claim  to  or  lien  upon  the  experi- 
ence, skill,  energy,  and  fidelity  of  the  court's 
receiver,  who  represents  the  interests  as 
well  of  the  mortgagor  as  of  his  creditors. 
Douglass  v.  Clinc,  12  Bus/i  (Ay.)  608,  18  Am. 
Ry.  Rep.  273. 

228.  What  debts  are  encitled  to 
priority.— Debts  which  are  given  prefer- 
ence in  the  appointment  of  a  receiver  in 
foreclosure  proceedings  are  generally  those 
which  have  aided  to  conserve  the  property 
and  havebeencontractedwithinsomereason- 
able  period  ;  but  just  what  debts  aid  to  con- 
serve the  properly  and  what  length  of  time 
will  bar  them  is  not  clear  upon  the  author- 
ities, and  depends  largely  upon  the  circum- 
stances of  each  case.  There  is  no  fixed  rule 
barring  preferential  debts  contracced  more 
than  six  months  before  the  appointment  of 
a  receiver.  In  other  words,  there  is  no  "  six- 
months'  rule."  Farmers'  L.  (S>»  T.  Co.  v. 
Kansas  City,  W.  <S-  N.  W.  R.  Co.,  53  Fed. 
Rep.  182. — Following  Burnham  v.  Bowen, 
III  U.S.  776,  4  Sup.  Ct.  Rep.  675  ;  Blair  v. 
St.  Louis,  H.  &  K.  R.  Co.,  22  Fed.  Rep.  471 ; 
Central  Trust  Co.  v.  St.  Louis,  A.  &  T.  R. 
Co.,  41  Fed.  Rep.  551 ;  Central  Trust  Co.  v. 
Wabash,  St.  L.  &  P.  R.  Co.,  30  Fed,  Rep. 

332- 

A  court  may  order  a  receiver  to  make 
necessary  repairs  on  a  railroad,  and,  if  neces- 
sary, may  charge  the  expense  thereof  as  a 
first  lien  on  the  property,  in  preference  to 
existing  mortgages.  Hoover  v.  Montclair 
&>  G.  L.  R.  Co.,  29  A'.  /.  Eq.  4. 

After  the  appointment  of  a  receiver  of  an 
insolvent  corporation,  and  proceedings  in 
foreclosure,  an  agreement  was  entered  into 
among  the  secured  and  general  creditors  of 
the  corporation  whereby  certain  income 
boads  were  to  be  issued,  "  payable  in  thirty 
years,  with  interest  at  seven  per  cent.,  pay- 
able half  yearly,"  and  the  interest  was  to  be 
paid  if  the  company  should  "be  able  to  pay 
it  by  its  income,  after  paying  claims  prior 
thereto,  within  the  year,"  and  the  annual 
interest  should  not  be  allowed  to  accumu- 
late. A  committee  to  arrange  the  details 
of  the  plan  was  appointed.  Held,  that  the 
committee  had  authority  to  consent  that 
the  bonds  should  be  made  payable  at  the 
option  of  the  company  on  or  before  the  ex- 


I 
I 


I 


nm 


496 


MORTGAGES,  239-232. 


piration  of  thirty  years  from  the  date  of 
their  issue ;  also,  that  the  receiver  would 
not  be  ordered  to  pay  the  interest  on  the 
bonds  while  the  floating,'  debt  of  the  com- 
pany remained  unpaid.  Lehigh  C,  &^  A'. 
Co.  V.  Central  R.  Co.,  34  N.  J.  Eq.  88. 

2tii>.  A|>i>ortioiiiueiit  of  eariiiii{;s 
t<»  uiulerlyiiis- mortgages.— In  a  suit  to 
foreclose  a  mortgage  by  a  railroad  corpora- 
tion of  its  whole  railroad,  franchise,  lands, 
and  property,  which  have  since  been  put  in 
the  possession  of  a  receiver,  an  intervening 
prior  mortgagee  of  part  of  the  lands  is  not 
entitled  to  have  the  amount  of  his  mort- 
gage |)aid  out  of  the  funds  in  the  hands  of 
tiie  receiver,  or  out  of  the  proceeds  of  a  sale 
made  pursuant  to  the  decree  of  foreclosure, 
subject  to  his  mortgage.  Woodiuorth  v. 
Blair,  112  U.  i'.  8,  5  Sup.  CI.  Rep.  6. 

Where  a  single  corporation  owns  and 
operates  a  system  of  railroads  which  is  cov- 
ered by  a  general  mortgage,  with  local  mort- 
gages on  some  of  the  branches,  and  the 
whole  system  goes  into  the  hands  of  re- 
ceivers in  a  suit  to  foreclose  the  general 
mortgage,  as  a  rule  the  earnings  of  the  en- 
tire system  should  be  apportioned  to  the 
dilferent  divisions  on  a  mileage  basis,  for 
the  purpose  of  paying  taxes  and  interest  on 
the  local  mortgages ;  but  this  rule  is  not  in- 
flexible, and,  where  it  is  necessary,  a  larger 
proportion  of  the  earnings  may  be  expended 
upon  certain  divisions  than  on  others.  Cen- 
tral Trttst  Co.  V.  IVabash,  St  L.  «S-  P.  R.  Co., 
30  Fed.  Rep.  332. 

But  where  the  bondholders  in  the  local 
mortgages  are  represented  in  the  general 
foreclosure  proceeding  of  the  entire  system 
by  tlieir  trustees,  and  a  foreclosure  decree 
is  entered  without  objection  and  the  prop- 
erly sold,  it  is  then  too  late  for  the  local 
iioiidholders  to  object  to  the  manner  in 
which  the  earnings  of  the  system  have  been 
applied  before  the  foreclosure  decree.  Cen- 
tral Trust  Co.  V.  Wabash,  St.  L.  (S-  P.  R. 
Co..  30  Fed.  Rep.  332. 

230.  Cliargiiig  income  with  rent 
and  repairs  of  cars.— When  a  receiver 
is  appointed  pending  foreclosure  of  a 
railroad  mortgage,  and  both  before  and 
during  such  receivership  improvements 
and  equipments  are  made  from  current  re- 
ceipts, the  income  during  the  receivership 
tnay  be  charged  with  a  claim  for  rent  of 
cars,  and  if  that  is  insufficient,  the  claim 
m;iy  be  charged  upon  the  proceeds  of  the 
property;  yet  the  proceeds  will  not,  in  the 


absence  of  special  circumstances,  be  for 
such  rent  and  for  claims  for  lease  of  cars, 
etc.,  which  accrued  more  than  six  months 
prior  10  the  appointment  of  the  receiver. 
Thomas  v.  Peoria  <S-  R.  I.  R.  Co.,  36  Am. 
<3-  Eng.  R.  Cas.  381,  36  Fed.  Rep.  808.— Ap- 
plied IN  Bound  V.  South  Carolina  R.  Co., 
47  Fed.  Rep.  30. 

In  the  absence  of  sufficient  evidence 
that  the  cars  needed  repairs,  no  claim  hav- 
ing been  made  upon  the  receiver  appointed 
pending  foreclosure,  a  claim  for  such  re- 
pairs by  the  lessor  who  intervened,  made  in 
an  amended  petition  tiled  three  years  after 
the  surrender  of  the  cars,  will  be  rejected. 
Thomas  v.  Peoria  &'  R.  I.  R.  Co.,  36  Am. 
&•  Ettg.  R.  Cas.  381,  36  Fed.  Rep.  808. 

Where  a  receiver  appointed  pending  fore- 
closure agrees  to  keep  cars  leased  for  use 
on  the  road  in  good  repair,  such  claim  will 
be  allowed.  Thomas  v.  Peoria  <&»  A'.  /.  A', 
Co.,  36  Am.  &•  Eng.  R.  Cas.  381,  36  Fed. 
Rep.  808. 

231.  Sales  by  receiver.— Where  the 
mdebtedness  of  a  company  is  more  than 
double  its  assets,  and  it  is  without  income 
to  meet  the  cost  of  necessary  repairs,  and 
the  property  is  of  such  a  character  as  to 
materially  depreciate  in  value  during  a  pro- 
tracted litigation,  and  it  is  clearly  for  the 
interest  of  all  that  the  property  be  sold  as 
soon  as  possible,  and  nearly  all  the  first 
mortgage  bondholders  ask  for  such  a  sale, 
the  court  will  order  a  sale  by  the  receiver 
pending  the  litigation.  Middleton  v.  A'eit/ 
Jersey  W.  L.  R.  Co.,  26  N.J.  Eq.  269;  re- 
versed on  another  point  in  27  N.J.  Eq.  557. 

232.  Adjusting  the  expenses  of 
the  receivership.  —  The  mortgagee  or 
lien  holder  who  ptocures  a  receivership  of  a 
railroad  thereby  consents  to  the  subjection 
of  his  interest  in  the  property  of  which 
possession  is  taken  at  his  instance  to  the 
discharge  of  liabilities  and  expenses  in- 
curred by  the  receiver  under  the  orders  of 
the  court.  But  where  receivers  are  ap- 
pointed upon  the  petition  of  the  insol- 
vent debtor,  the  situation  is  different,  and 
the  administration  of  the  trust  and 
the  adjustment  of  liabilities  for  past  and 
current  expenses  must  be  upon  principles 
different  from  what  would  otherwise  gov- 
ern. Central  Trust  Co.  v.  Wabash,  St.  L. 
iS-  P.  R.  Co.,  46  Am.  6-  Ettg.  R.  Cas.  301, 46 
Fed.  Rep.  26. 

Where  receivers  were  appointed  solely  at 
the  instance  and  for  the  benefit  of  second 


MORTGAGES,  233,  234. 


497 


m 


- 


mortgage  bondholders,  and  the  trustees 
who  sold  the  property  were  appointed  to 
sell  exclusively  for  the  same  parties,  and 
not  for  the  benefit  of  the  first  mortgage 
bondholders,  upon  no  principle  of  justice 
or  reason  could  the  first  mortgage  bond- 
holders be  assessed  to  pay  the  commissions 
and  the  other  expenses  allowed,  or  any 
part  of  them,  to  such  receivers  and  trus- 
tees. 7'i»/n:  V.  King,  64  Md.  166.— Distin- 
guishing White  V.  Bishop  of  Peterbor- 
ough, Jac.  402. 

Where  the  plaintiff  in  foreclosure  has 
procured  the  appointment  of  a  receiver 
with  power  to  control  and  operp*'-  the 
mortgaged  road,  he  may  not  object  to  the 
depreciation  of  his  security  by  expenses  in- 
curred for  that  purpose,  but  he  may  prop- 
erly seek  to  have  excluded  any  previous 
ones.  Metropolitan  Trust  Co.  v.  Tona- 
wanda  Valley  &*  C".  A".  Co.,  103  N.  Y.  245,  8 
A'.  E.  Rep.  488,  2  N.  Y.  S.  R.  69 ;  reversing 
40  Hun  80. 

In  a  suit  brought  to  enforce  the  specific 
execution  of  the  terms  and  stipulations  of 
a  railroad  mortgage,  by  which,  on  the  hap- 
pening of  a  specific  event,  to  wit,  default 
for  one  year  in  the  payment  of  interest,  the 
trustees,  or  the  survivor  of  them,  are  enti- 
tled to  take  possession  of  the  property 
mortgaged,  hold  it,  receive  and  collect  the 
income  and  profits  arising  from  it,  and 
apply  such  income  and  profits  in  a  manner 
specified  in  the  mortgage— //^/c/,  that,  upon 
default  in  the  payment  of  such  interest,  a 
court  of  equity  had  power  to  appoint  the 
surviving  trustee  a  receiver,  to  take  posses- 
sion of  the  mortgaged  property,  and  to 
authorize  him,  as  such,  to  make  provision 
for  operating  the  road  so  as  to  secure  an 
income  and  profits;  and  that  the  receiver, 
the  road  being  without  rolling  stock  or 
other  equipments,  had  authority  to  pur- 
"chase  the  same  for  the  use  of  the  road; 
that  the  expenses  of  the  receiver  and  trus- 
tee, reasonably  incurred  in  the  discharge  of 
his  trust,  should  be-  allowed  him,  and  were 
a  lien  upon  the  mortgaged  property  prior 
to  that  of  the  bondholders;  that  such  ex- 
penses included  reasonable  fees  for  counsel 
employed  by  the  receiver  to  aid  him  in  the 
proper  discharge  of  his  trust,  the  cost  of 
litigation,  expenses  incurred  in  taking  care 
of,  protecting,  and  repairing  the  property  in 
his  charge,  and,  under  the  circumstances  of 
this  case,  money  expended  for  rolling  stock 
and  machinery.  McLane  v,  PlacerviUe  6- 
6  D.  R.  D.— 3a 


S.  V.  R.  Co.,  26  Am.  <&>•  Ev);.  R.  Cas.  404,  66 
Cal.  606,  6  Pac.  Rep.  748.— APPLYING  Meyer 
V.  Johnston,  53  Ala.  348;  Stanton  v.  Ala- 
bama &  C.  R.  Co.,  2  Woods  (U.  S.)  586. 
Quoting  Rensselaer  &  S.  R.  Co.  v.  Miller, 
47  Vt.  152. 

233.    expenses    of   ooiiiimiiy 

while  coiitcstiii{;  the  fbreelosiire.— 
When  the  mortgaged  property  will  not 
realize  sufficient  upon  sale  to'pay  the  mort- 
gage debt,  an  allowance  out  of  funds  in  the 
hands  of  the  receivers  for  the  payment  of 
the  mortgagor's  counsel  cannot  be  made. 
Mercantile  Trust  Co.  v.  Missouri,  K.  &>  7". 
R.  Co.,  43  Am.  &>  E/tg.  R.  Cas.  469,  41  Fed. 
Rep.  8. 

Where  a  suit  is  instituted  to  foreclose  a 
mortgage  to  pay  bonds  which  are  prima 
facie  valid,  and  the  bill  alleges  that  the  as- 
sets are  not  sufficient  to  pay  the  bonds,  and 
the  company  in  its  defense  attacks  the  va- 
lidity of  ihe  bonds,  as  the  bondholders  are 
entitled  to  all  of  the  assets,  if  necessary'to 
pay  their  bonds,  the  court  will  not  make  an 
order  pending  the  litigation  directing  the 
receiver  to  pay  certain  salaries,  office  ex- 
penses, and  counsel  fees  on  the  application 
of  the  company.  Union  L.  <S>»  T.  Co.  v. 
Southern  Cal.  Motor  Road  Co. ,  5 1  Fed.  Rep. 
840.— Referring  to  Kneeland  v.  Amer- 
ican L.  &  T.  Co.,  136  U.  S.  89,  lo  Sup.  Ct. 
Rep.  950. 

234.  Eiiforceiiieut  of  claims  alter 
discharge  of  receiver.  —  Where  the 
property  in  a  foreclosure  suit  has  been  sold 
and  ordered  turned  over  to  the  purchaser, 
and  the  receiver  discharged,  and  the  court 
only  retains  jurisdiction  of  the  case  for  the 
purpose  of  enforcing  debts  incurred  by  the 
receiver,  suits  to  enforce  unsatisfied  claims, 
whether  growing  out  of  contract  or  tort 
against  the  receiver,  and  which,  if  estab- 
lished, would  constitute  a  lien  on  the  prop- 
erty, should  be  prosecuted  against  the  pur- 
chasers upon  notice,  and  not  against  the 
receiver.  Farmers'  L.  &*  T.  Co.  v.  Central 
R.  Co.,  2  McCrary  (U.  S.)  iSi,  7  Fed.  Rep. 
537.— Followed  in  Davis  v.  Duncan,  17 
Am.  &  Eng.  R.  Cas.  295,  19  Fed.  Rep.  477. 

But  it  is  competent  for  the  court  to  es- 
tablish liens  against  the  property  in  the 
hands  of  purchasers,  and  fix  a  time  of  pay- 
ment, and,  if  not  paid  within  the  time,  to 
order  a  sale  of  the  property.  And  in  estab- 
lishing such  claims  they  are  to  be  tried  with 
or  without  a  jury,  according  to  whether  they 
are  legal  or  equitable.    Farmers'  L.  &*  T. 


-r-5Bi 


498 


MORTGAGES,  235-237. 


li' 


Co.  V.  Central li.  Co.,  2  McCrary  (U.  S.)  \%\, 
7  Fed.  Rep.  537. 

7.   The  Sale, 
a.  When  Proper ;  How  Conducted  ;  Eflect. 

235.  When  a  sale  is  proper,  and 
wUl  l»e  ordered.— In  a  proper  case  a 
court  of  equity  lias  the  power  so  to  mould 
its  decree  as  to  order  a  sale  of  mortgaged 
premises  to  satisfy  that  part  of  the  mort- 
gage debt  which  is  due,  and  preserve  the 
lien  upon  the  mortgaged  premises  in  the 
hands  of  the  purchaser  as  to  the  unmatured 
part  of  the  debt.  Pennsylvania  R.  Co.  v. 
Allegheny  Valley  R.  Co.,  48  Fed.  Rep.  I39-— 
OUOTING  Christian  v.  Atlantic  &  N.  C.  R. 
Co.,  133  U.  S.  233.  10  Sup.  Ct.  Rep.  260. 

Where  a  railroad  has  been  in  the  hands 
of  a  receiver  for  three  years,  and  has  been 
managed  with  great  economy,  but  there  has 
only  been  enough  surplus  earnings  to  pay 
interest  on  the  oldest  securities  for  two 
years,  and  nothing  whatever  has  been  paid 
on  the  junior  securities,  and  nearly  all  the 
persons  holding  liens  on  the  road  are  urging 
a  sale,  a  sale  will  be  ordered,  although  op- 
posed by  one  class  of  security  holders. 
Bound  V.  South  Carolina  R.  Co.,  50  Fed.  Rep. 

853. 

Plaintifl  company  guaranteed  the  bonds 
and  interest  coupons  of  another  company, 
or  rather  it  indorsed  the  bonds  and  coupons, 
agreeing  to  purchase  them  at  maturity  at 
par,  in  which  case  it  was  to  be  substituted 
to  the  rights  of  the  holders  in  the  mortgage 
given  to  secure  them.  It  purchased  certain 
coupons  and  then  filed  a  bill  to  foreclose 
before  the  bonds  had  matured.  Held,  that 
♦(!  ■  .ontract  should  be  construed  so  as  to 
ji  ■••  ?  the  bondholders  their  mortgage 
Vx  ■'"<  plaintiff  had  fully  performed  its 

v:', ;i;^-,.ior:,b  according  to  the  tenor  of  its  in- 
t%  A '  -' ,  and  that  in  the  meantime  its 
rt:,i,  »:,  Mpon  purchased  coupons  should  be 
kept  in  such  a  limit  as  to  effect  that  object, 
and  should  not  be  permitted  to  foreclose  so 
as  to  destroy  the  bondholders'  security. 
Pennsyhninia  R.  Co.  v.  Allegheny  Valley  R. 
Co.,  48  Fed.  Rep.  139. 

But  it  appearing  in  such  case  that  the  in- 
terest of  all  parties  concerned  would  be  best 
subserved  by  a  sale  of  the  property,  it  was 
ordered  to  be  made,  subject  to  the  mortgage 
lien,  to  secure  the  principal  of  the  bonds 
and  subsequent  interest  falling  due.  Penn- 
syhania  R.  Co.  v.  Allegheny  Valley  R.  Co., 
48  Fed.  Rep.  139. 


It  appeared  that  the  mortgagor  was  in- 
solvent; that  an  execution  purchaser  under 
a  junior  encumbrance  would  do  nothing  to 
discharge  the  interest;  that  the  operation 
of  the  road  by  the  trustee  would  result  in  a 
loss;  that  the  trustee  had  no  proceeds  with 
which  to  make  repairs ;  and  that  the  road,  if 
unused,  would  necessarily  decay.  Held,  that 
the  court  had  power  to  order  a  sale  of  the 
property,  although  the  mortgage  did  not  in 
terms  autliorize  a  sale  upon  default  in  the 
payment  of  interest,  and  the  bonds  had  not 
yet  matured.  McLane  v.  Placerville  &'  S. 
V.  R.  Co.,  26  Am.  &*  Eng.  R.  Cas,  404,  66 
Cal.  606,  6  Pac.  Rep.  748. 

236.  When  a  sale  will  not  be  or- 
dered.— A  court  of  equity  will  never  make 
an  interlocutory  order  for  an  immediate  sale 
of  property  upon  terms  discharging  the  lien 
of  a  mortgage  not  yet  due  unless  it  clearly 
appears,  not  only  that  in  the  end  there  must 
be  a  sale  of  the  property,  but  a  sale  upon 
those  terms.  Pennsylvania  R.  Co.  v.  Alle- 
gheny Valley  R.  Co.,  42  Fed.  Rep.  82. 

Income  bondholders  secured  by  a  junior 
mortgage  intervened  and  asked  the  court 
for  an  order  to  sell  the  property  of  an  insol- 
vent railway  company  in  the  hands  of  a  re- 
ceiver, pending  the  litigation,  so  as  to  cut 
off  the  lien  of  senior  mortgages  securing 
bonds  not  yet  due.  The  validity  of  the 
senior  mortgages  was  involved  and  unde- 
termined, and  the  final  result  of  other  ques- 
tions in  litigation  was  uncertain.  Held.that 
a  sale  on  the  terms  asked  for  should  be 
denied.  Pennsylvania  R.  Co.  v.  Allegheny 
Valley  R.  Co.,  42  Fed.  Rep.  82. 

Where  the  entire  property  of  a  railroad 
has  been  placed  in  the  hands  of  a  receiver 
pending  a  general  foreclosure,  but  not  a 
single  right  or  claim  has  been  established 
by  decree,  there  is  no  authority  for  seiling 
the  property  pendente  lite  by  piecemeal  ex- 
cept by  consent  of  all  persons  interested. ' 
So  an  application  under  such  circumstances 
to  sell  certain  lands  not  needed  for  corpo- 
rate purposes,  the  proceeds  to  be  applied  to 
the  extinguishment  of  the  oldest  liens,  will 
be  denied  where  consent  of  all  parties  in- 
terested is  not  obtained,  and  the  absence  of 
counsel  of  some  of  the  parties  at  a  hearing 
of  a  motion  to  obtain  leave  to  sell  will  not 
be  construed  as  consent.  Bound  v.  South 
Carolina  R.  Co.,  46  Fed.  Rep.  315. 

237.  When  the  road  should  be 
leased  instead  of  sold. —  An  authority 
to  mortgage  a  railroad  and  its  property 


iVlORTGAGES,  238-241. 


499 


must  design  a  transfer  of  the  ri^ln  tt)  oper- 
ate the  road  ;  and  in  a  suit  to  foreclose  a 
niortj^age  upon  a  railroad  and  its  franchises 
(vvliich  authorized  a  sale,  upon  the  failure 
to  pay  either  the  interest  or  principal,  to 
satisfy  the  amount  claimed  and  due,  but 
contained  no  provision  that  the  principal 
should  become  due  upon  failure  to  pay  in- 
terest, and  the  principal  is  not  due),  the 
bondholders  have  a  right  to  a  sale  for  the 
interest  due.  If  the  property  is  divisible, 
a  sale  should  be  ordered  of  so  much  as 
will  satisfy  the  amount  due.  If  not  sus- 
ceptible of  division,  it  must  be  sold  or  leased 
as  an  entirety.  In  such  case,  where  the 
property  is  worth  much  more  than  the 
amount  of  the  debt  and  interest,  it  should 
be  leased  by  public  auction  for  the  shortest 
term  that  will  bring  the  amount  due,  and 
the  accruing  interest  and  principal  as  the 
same  shall  become  due.  If  no  one  will 
lake  it  for  a  term  of  years,  then  to  be  sold 
absolutely,  the  company  to  elect  wlietiier 
the  property  should  be  first  offered  for  a 
term  of  years,  the  lessee  or  purchaser  to 
give  bonds,  with  good  security,  personal  or 
real,  for  the  purchase  money,  including  the 
accruing  interest  and  principal  of  the  mort- 
gage bonds;  a  lien  on  the  property  or  term 
to  be  reserved  as  additional  security.  If 
leased,  the  lessee  to  give  a  covenant,  with 
good  security,  to  keep  in  good  repair  the 
road,  cars,  and  other  property  not  consum- 
able by  use,  such  as  fuel  and  oil,  and  to  re- 
turn the  same  to  the  company  at  the  end  of 
the  term  in  as  good  condition  as  when  re- 
ceived. The  court,  before  ordering  a  lease, 
to  cause  the  inventory  to  be  made  of  the 
property,  its  value,  condition,  etc.,  to  be 
filed,  and  declared  in  the  decree  conclusive 
evidence  of  its  condition  and  value  at  the 
ticne  of  the  lease.  Bardstown  &>  L,  R.  Co. 
V.  Metcalfe,  4  Mete.  (Ky.)  199. 

238.  Ordering  sale  of  coiisoli- 
dnted  road. — Where  a  road  in  the  hands 
of  the  court  is  the  property  of  a  company 
constituted  by  the  consolidation  of  three 
roads,  all  of  which  had  before  the  consol- 
idation issued  their  bonds  and  executed 
mortgages  on  their  property  to  secure  them, 
the  court  may  direct  the  property  of  the 
consolidated  company  to  be  sold  as  a  whole, 
and  afterwards  fix  the  amount  to  be  paid  to 
the  several  holders  of  the  bonds  and  mort- 
gages on  the  respective  roads.  Gibert  v. 
Washington  City,  V.  M.  &>  G.  S.  A'.  Co.,  1 
Am.  6-  £>(f .  A'.  Cus.  473,  33  Gratt.  ( Va.)  586. 


239.  Apprai-seiiient.— When  a  mort- 
gage on  a  railroad  is  foreclosed,  the  prop- 
erty must  be  sold  as  real  and  personal,  and 
the  real  estate  must  be  sold  according  to 
the  rules  governing  sales  of  real  estate, 
and  must,  therefore,  be  appraised.  Coe  v, 
Columbus,   P.    &>   I.    r.    Co.,  10  Ohio   St. 

372- 

240.  Conduct  of  the  sale,  gen- 
erally.—A  railroad  with  its  fixtures,  con- 
stituting an  entire  tract  of  real  estate,  divis- 
ible for  the  purpose  of  the  sale,  together 
with  the  franchise  connected  therewith, 
siiould  be  sold  in  foreclosure  proceedings 
in  like  manner  as  an  entire  tract  lying  in 
two  or  more  counties,  and  the  proceedings 
incidental  to  the  sale  should  be  had  in  the 
county  in  which  the  action  was  brought. 
Coe  V.  Columbus,  P.  S-  /.  A'.  Co.,  10  Ohio  St. 
372.— Quoted  in  Gooch  v.  McGee,  83  N. 
Car,  59,  35  Am.  Rep.  558;  Hill  v.  La  Crosse 
■iM.  R.  Co.,  II  Wis.  214. 

With  the  real  estate,  and  connected  there- 
with, the  franchise  of  a  corporation  to 
maintain  a  railroad,  and  demand  compen- 
sation for  the  transportation  of  passengers 
and  property,  must  be  sold.  Coe  v.  Colum- 
bus, P.  &*  I.  A\  Co.,  10  Ohio  St.  372. 

241.  Sale  in  mass  or  in  parcels.— 
Where  a  railroad  as  an  entirety  is  mort- 
gaged to  secure  bonds  and  their  interest, 
and  there  is  a  default  in  the  payment  of 
interest,  and  it  appears  that  the  road  cannot 
be  sold  in  sections  without  loss  to  its  value 
as  a  whole,  the  court  may  order  a  sale  of 
the  entire  road  before  the  principal  of  the 
bonds  falls  due.  Wilmer  v.  Atlanta  &*  K. 
A.  L.  R.  Co.,  2   Woods  ([/.  S.)  447. 

If  a  mortgage  is  given  by  a  company  upon 
Its  entire  road  to  secure  its  bonds,  and  it 
procures  the  grading  of  only  a  part  of  the 
road  in  the  middle,  and  then  abandons  the 
work,  leaving  each  end  of  the  road  unfin- 
ished, and  another  company  organizes  and 
completes  the  road,  on  bill  to  foreclose  the 
mortgage  given  by  the  first  company  it  is 
erroneous  to  decree  a  sale  of  the  middle 
portion  of  the  road,  leaving  the  two  ends 
worthless.  If  any  foreclosure  can  be  had,  the 
entire  road  must  be  sold  and  the  proceeds 
distributed  as  between  the  bondholders  of 
the  original  company  and  the  new  company 
in  the  proportion  which  the  work  done  by 
the  first  company  bears  to  the  cost  or  value 
of  the  entire  road  as  completed.  Chicai^o, 
D.  &-  V.  R.  Co.  v.  Loewenthal,  93  ///.  433 — 
Overruled  in  part  in  Peoria  &  S.  R.  Co. 


•I 


! 


500 


MORTGAGES,  iJ41i,  243. 


#i 


^i  Ui 


■;    I , 


V.  Tliompson,  7  Am.  &  Eng.  R.  Cas.  loi, 
103  111.  1S7. 

W'lieie  a  railroad,  its  appurtenances  and 
franchises,  are  niortj;aj{ed  as  a  whole,  there 
is  no  power  or  authority  to  sell  them  sepa- 
rately, and  such  property,  taken  as  a  whole, 
not  being,  strictly  speaking,  either  real  or 
personal  estate,  when  sold  on  a  decree  of 
foreclosure  is  properly  sold  without  any 
right  of  redemption.  The  rule  is  founded 
partly  upon  considerations  of  public  policy. 
Peoria  &»  S.  R.  Co.  v.  Thompson,  7  Am.  &^ 
Eng.  R.  Cas.  loi,  103  ///.  187.— Quoted  in 
Cushman  v.  Bonfield,  36  111.  App.  436. 

To  allow  a  railroad  to  be  cut  up  into 
fragments,  and  separate  portions  sold  at 
different  sales,  in  the  different  counties 
through  which  it  passes,  to  different  pur- 
chasers, would  not  only  sacrifice  the  rights 
and  interests  of  creditors,  but  defeat  the 
objects  and  intentions  of  the  legislature  in 
granting  the  charter.  Macon  <S»  H'.  R.  Co. 
V.  Parker.  9  Ga.  377.— Quoted  in  Georgia  v. 
Atlantic  &  G.  R.  Co.,  3  Woods  (U.  S.)  434. 

242.  What  property  or  franchises 
will  pass.* — A  railroad  franchise  includes 
the  right  of  appropriating  lands  for  the  con- 
struction of  necessary  appurtenances,  with- 
out which  the  road  could  not  be  successfully 
operated ;  and  such  a  franchise  is  trans- 
ferred in  a  marshal's  sale  of  a  railroad  and 
its  franchises  to  the  purchaser,  even  if 
he  is  a  natural  person.  Lawrence  v.  Mor- 
gan's L.  Of  T.  R.  &•  S.  Co.,  30  Am.  &*  Eng, 
R.  Cas.  309,  39  La.  Ann.  427,  2  So.  Rep.  69. 

A  company  constructed  part  of  its  road 
through  another  state  and  mort^ageu  all 
its  rights,  etc.,  in  the  whole  road;  the 
trustee  in  the  mortgage,  being  within  the 
jurisdiction  of  the  court,  can  be  authorized 
and  compelled  to  sell  whatever  interest  of 
the  company  will  pass  under  the  terms  of 
the  mortgage.  McElrath  v.  Pittsburg  &* 
S.  R.  Co.,  55  Pa.  St.  189. 

A  provision  in  a  charter  that  the  charges 
for  carrying  passengers  shall  not  exceed  five 
cents  per  mile  for  each  passenger  is  not  a 
contract  on  the  part  of  the  state  that  pas- 
senger fares  shall  never  be  reduced  below 
that  rate.  But  if  it  were,  the  privilege  con- 
ferred would  not  pass  to  the  purchasers  at 
a  mortgage  foreclosure  sale,  although  the 

*  Franchises  of  road  pass  to  purchaser  at  fore- 
closure sale,  see  notes,  30  Am.  &  Eng.  R.  Cas. 
315  ;  36  A/.  275. 

Exemption  from  taxation  not  transferable, 
see  note,  13  Am.  &  Eng.  R.  Cas.  389. 


niortga"^e  purports  to  transfer  the  charter; 
and  the  reorganization  by  such  purchasers 
after  the  adoption  of  the  present  constitu- 
tion creates  a  new  corporation,  subject  to 
legislative  control.  J)o7ij  v.  Beidclman,  49 
Ark.  325,  5  S.   W.  Rep.  297. 

Town  lots  held  by  a  company  do  not 
pass  by  a  sheriff's  sale,  upon  a  mortgage  of 
the  road,  "  with  its  corporate  privileges  and 
appurtenances,"  unless  directly  appurte- 
nant to  the  railroad,  and  indispensably  nec- 
essary to  the  enjoyment  of  its  franchises. 
Shamokin  Valhy  R.  Co.  v.  Livermore,\7  Pa. 
St.  465. — Reviewed  in  Morgan  v.  Dono- 
van, 58  Ala.  241. 

Where  a  company  mortgages  its  road 
then  constructed  or  thereafter  to  be  con- 
structed, and  it  is  subsequently  authorized 
by  an  act  of  the  legislature  to  mortgage  a 
branch  road,  the  statute  expressly  providing 
that  the  mortgage  shall  be  a  first  lien  on 
the  branch,  the  original  mortgage  does  not 
cover  the  branch,  and  a  sale  thereunder 
must  be  exclusive  of  the  branch.  Randolph 
v.  Wilmington  &-  R.  R.  Co.,  11  Phila.  (Pa.) 
502. 

After  a  railroad  had  been  in  the  hands  of 
a  receiver  for  several  years  it  was  sold  under 
a  decree  directing  a  sale  of  "  the  road,  the 
franchise  of  the  company,  the  right  of  way, 
depots,  rolling  stock,  tools,  and  all  other 
property  of  the  company,  real,  personal,  and 
mixed."  Helil,  that  the  purchaser  was  not 
entitled  to  money  in  the  hands  of  the 
receiver  arising  from  surplus  earnings  of  the 
road,  but  he  was  entitled  to  cars,  engines, 
and  other  property  placed  on  the  road  by 
the  receiver.  Strang  v.  Montgomery  &*  E. 
R.  Co.,  3  Woods  (U.S.)t\i. 

243.  Time  of  sale— Postponement. 
— A  court  of  equity,  after  a  decree  in  fore- 
closure ordering  the  sale  of  a  railroad,  will 
take  the  responsibility,  if  necessary,  of 
delaying  the  sale  to  await  a  better  condition 
of  the  finances  and  business  of  the  country 
than  exists  at  the  time  of  the  decree.  Dun- 
can v.  Atlantic,  M.  &-  O.  R.  Co.,  4  /hughes 
(U.  S.)  125. 

A  court  of  equity  which  has  entered  a 
final  decree  of  foreclosure,  from  which  an 
appeal  has  been  taken,  may  postpone  the 
day  of  sale  fixed,  for  good  reasons  shown, 
without  granting  a  supersedeas.  And  the 
postponement  should  be  ordered  where  a 
sale  might  be  disastrous  to  the  purchaser,  or 
where  it  might  render  a  decision  in  favor  of 
the  appellants  nugatory,  if  it  could  not  be 


MORTGAGES,  244-240. 


501 


••escinded.  Bounds.  South  Carolina  R,  Co., 
55  red.  Rep.  i86. 

Tlie  fact  that  a  railroad  begins  after  a 
period  of  financial  adversity  to  show  a  pros- 
perous stale  of  earnings,  indicating  that  in 
a  few  years  it  will  be  able  to  pay  of!  an  accu- 
mulation of  overdue  and  unpaid  interest, 
does  not  furnish  ground  for  a  postponement 
of  its  sale  in  foreclosure,  especially  if  the 
company  owning  the  railroad  offers  no 
guaranty  tliat  such  prosperity  will  continue. 
Duncan  v.  Atlantic,  M.  <&*  O.  R.  Co.,  4 
Hughes  {U.  S.)  125. 

Where  the  rights  of  the  several  classes  of 
creditors  of  a  railroad  have  been  declared, 
and  the  condition  of  the  railroad  demands 
an  early  sale,  such  sale  will  not  be  postponed 
until  the  interests  of  individual  creditors 
have  been  adjusted,  and  the  class  to  which 
their  demands  belong  has  been  ascertained. 
Hands.  Savannah  iS-  C.  R.  Co.,  12  Am.  &• 
Eiij,^.  R.  Cas.  488,  1 3  So.  Car.  467. 

244.  Uig:lit8  of  bidders— A(lJoiirn<* 
iiieiits.— A  court  directed  a  foreclosure 
sale  of  a  railroad,  and  the  marshal  advertised 
and  offered  the  property  for  sale  at  public 
auction.  Appellant  bid  on  the  property. 
Several  adjournments  of  the  sale  were  made, 
after  one  of  which  appellant  advanced  his 
bid  to  the  full  amount  of  the  debt  and  costs, 
which  was  the  highest  and  best  bid.  Appel- 
lant petitioned  the  court  to  have  the  sale 
confirmed  to  him  on  his  bid,  which  'vai. 
refused,  and  before  the  property  was  again 
offered  under  an  adjournmetit  the  debt  and 
costs  were  paid  off.  Held,  that  the  marshal 
had  the  right  to  iidjourn  the  sale  if  deemed 
best,  and  that  the  sale  was  incomplete  until 
iictually  knocked  down,  and  appellant's  peti- 
tion was  properly  refused.  Blossoms.  Mil- 
waukee &'  C.  R.Co..  3  Wall.  ([/.  S.)ig6. 

245.  Deposit  by  bidder.— In  order 
to  prevent  "  straw  "  bids  and  delays  a  court 
of  equity,  in  ordering  a  sale  of  valuaole  rail- 
road property,  including  a  railroad  of  some 
200  miles,  with  its  equipment,  may  require 
each  bidder  to  deposit  850,000.  Turner  v. 
Indianapolis,  B.  <S-  W.  R.  Co.,  8  Biss.  {U.S.) 
3S0. 

Where  a  foreclosure  decree  requires  bid- 
ders to  pay  into  court  earnest  money  at  the 
time  of  the  sala,  to  be  returned  if  the  sale  is 
not  confirmed,  and  the  decree  is  subse- 
quently modified  by  consent  so  as  to  allow 
the  deposit  to  be  made  by  a  certified  check 
instead  of  in  cash,  and  requiring  the  com- 
missioner to  deposit  the  same  with  a  certain 


trust  company,  the  clerk  of  the  court  is  not 
entitled  to  a  fee  thereon  calculated  as  a 
certain  percentage  of  the  amount.  Easton 
V.  Houston  &*  T.  C.  R.  Co.,  ^^4  Fed.  Rep.  718. 
—Distinguishing  Ex  parte  Prescott,  2 
Gall.  (U.  S.)  146;  Thomas  v.  Chicago  &  C. 
S.  R.  Co..  37  Fed.  Rep.  548. 

24<l.  Wliat  niny  be  tal^eit  for  puy- 
iiieiit.— A  provision  in  a  railroad  mortgage 
authorizing  the  trustees  to  sell  in  case  of 
default,  and  to  receive  the  mortgage  bonds 
in  payment,  only  applies  to  a  sale  made  by 
the  trustees,  and  the  provision  relating  to 
taking  the  bonds  in  payment  is  not  binding 
when  a  foreclosure  sale  is  ordered  by  the 
court.  Farmers'  L.  <S<«  T.  Co.  v.  Green  Bay 
6-  M.  R.  Co.,\o  Biss.  (Cr.  S.)  203,  6  Fed. 
Rep.  100. 

But  if  the  court  decrees  that  the  mort- 
gage bonds  may  be  received  in  part  pay- 
ment, it  is  not  necessary  to  fix  their  value 
before  the  sale  is  confirmed.  Farmers'  L. 
(^  T.  Co.  V.  Green  Bay  <Sr-  M.  R.  Co.,  10  Biss. 
(LT.S.)  203,  6  Fed.  Rep.  100. 

247.  Expenses  of  sale,  coiiiniis- 
sioiis,  etc.  —  Where  bills  were  filed  in 
Georgia  and  Alabama  to  foreclose  a  mort- 
gage on  a  railroad  lying  in  both  states,  a 
sale  of  the  railroad  as  a  unit  having  been 
made  by  the  receiver  appointed  by  the 
courts  of  both  states,  the  register  is  not  en- 
titled to  commissions  on  such  sale.  Rome 
&>  I).  R.  Co.  V.  Sidert,  97  Ala.  393, 1 2  S». 
Rep.  69. 

248.  Conflrniatioii.— The  legislature 
has  no  power  to  confirm  a  fraudulent  sale 
of  the  mortgaged  property  of  a  corporation. 
White  Mountains  R.  Co.  v.  White  Moun- 
tains (N.  H.)  R.  Co.,  50  N.  H.  50,  I  Am.  Ry. 
Rep.  146. 

t.  Rights  and  Liabilities  of  Purchasers. 

249.  In  general.— The  purchaser  of 
mortgaged  railroad  property,  under  a  de- 
cree of  the  supreme  court,  is  substituted  in 
place  of  the  mortgagee.  Youngman  v.  El- 
mira  <&-  W.  R.  Co.,  65  Pa.  St.  278. 

A  purchaser  of  a  railroad  at  a  foreclosure 
sale  is  not  entitled  to  the  net  earnings  of 
the  road  between  the  time  of  sale  and  pos- 
session by  him,  where  the  delay  in  deliver- 
ing possession  was  due  to  liis  failure  to 
comply  promptly  with  the  terms  of  sale ; 
nor  to  a  fund  that  came  to  the  hands  of  a 
receiver  by  order  of  the  court.  Osterber^  v. 
Union  Trust  Co.,  93  U.  S.  424. 

Where  railroad  property  is  bid  in  by  a 


mm 

'mi'') 


■if 


502 


MORTGAGES,  250-202. 


committee  representing  the  bondholders,  it 
is  not  necessary  that  it  appear  wlio  are  their 
princijials.  Turner  v.  Indianapolis,  li.  ilj>» 
W,  R.  Co.,  8  /iiss.  (U.  S.)  3S0. 

Wliere  the  property  and  francl)ise  of  the 
company  liad  been  sold  on  a  decree  of  fore- 
closure of  mortgages  executed  by  it  and 
purciiased  by  a  committee  of  the  bond- 
holders, and  by  sucli  committee  conveyed 
to  a  company  organized  under  tlie  general 
law  of  tiie  state  to  operate  the  road,  the 
purchaser  at  the  foreclosure  sale  and  the 
hitter  company  look  the  railway  free  from 
this  formal  contract,  especially  as  the  pur- 
chaser had  no  notice  of  the  agreement  as  to 
running  to  the  depot.  People  ex  rel.  v. 
Louisville  Sf  N.  A'.  Co.,  (III.)  25  Am.  &*  ling. 
R.  Cas.  235,  5  N.  E.  Rep.  379.— QuoTlNO 
Menaslia  v.  Milwaukee  &  N.  R.  Co.,  52 
Wis.  414. 

Where  the  immovable  property  of  a  rail- 
road is  sold,  the  interest  coupons  of  which 
are  due,  tlic  purchaser  at  sheriff's  sale  must 
apply  the  surplus  to  the  payment  pro  rata 
of  all  the  matured  interest  coupons  of  other 
bonds  of  the  same  grade  as  the  one  upon 
which  the  seizure  and  sale  was  made  which 
are  presented  and  demanded  ;  if  he  refuses, 
it  is  the  duty  of  the  sheriff  to  re-oflfer  the 
property  for  sale  the  same  day.  liranner  v. 
Hardy,  18  La.  Ann.  537. — Foli.owkd  in 
Gordon  v.  Vicksburg,  S.  &  T.  R,  Co.,  18  La. 
Ann.  550. 

250.  ItifirlitN  of  piircliiiNer  t\%  re- 
gards imyiiiciit  of  bid.— A  party  bid- 
ding at  a  foreclosure  sale  makes  himself 
thereby  a  party  to  proceedings,  and  subject 
to  the  jurisdiction  of  the  court  for  all  orders 
necessary  to  compel  the  perfecting  of  his 
purchase,  and  with  a  right  to  be  heard  on 
all  questions  thereafter  arising  affecting  his 
bid  which  are  not  foreclosed  by  the  terms 
of  the  decree  of  sale,  or  are  expressly  re- 
served to  him  by  such  decree.  Kneclandv. 
American  Z,.  &*  T.  Co.,  43  Am.  &^  Eng.  R. 
Cas.  519,  136  U.  S.  89,  10  Sup.  Ct.  Rep.  950. 
—  Following  Blossom  v.  Milwaukee  &  C. 
R.  Co.,  I  Wall.  (U.  S.)  655. 

Where  not  concluded  by  the  terms  of  the 
decree,  any  subsequent  rulings  which  deter- 
mine in  what  securities  of  diverse  value  the 
purchaser's  bid  shall  be  made  good  are 
matters  afTecting  his  interest  in  which  he 
has  a  right  to  be  heard  in  the  trial  court 
and  by  appeal  in  the  appellate  court.  Knee- 
land  V.  American  L.  <S>»  T.  Co.,  43  Am,  &* 


Eng.  R.  Cas.  519,  136   [/.  S.  89,     J  Sttp.  Ct. 
Rep.  950. 

If  mortgage  bondholders  purchase  the 
entire  property  at  a  foreclosure  sale,  they 
have  the  right,  after  paying  the  costs  and 
charges  of  the  litigation  and  of  the  trust,  to 
pay  the  residue  of  their  bid  in  bonds  so  far 
as  to  cover  their  own  proportion  of  such 
residue.  Duncan  v.  Mobile  tir*  O.  R.  Co.,  3 
Woods  ( U.  S.)  597. 

251.  Bond  fur  price,  and  liow  011- 
furve<l. —  Where  the  purchaser  of  a  railroad 
at  foreclosure  sale  executed  bonds  pursuant 
to  the  decree  of  confirmation,  which  directed 
the  commissioners  to  execute  a  deed  to  the 
purchasers,  who  "  shall  execute  to  the  afore- 
said commissioners  their  individual  bonds, 
which  shall  be  secured  by  a  lien  reserved  in 
the  conveyance,"  and  the  commissioners 
thereupon  conveyed  the  property  to  the 
purchasers,  "  under  the  name  of  tlie  W.  & 
W.  R.  Co.,"  subject  to  lien  for  the  balance 
of  the  purchase  money  as  represented  in 
the  bonds,  the  bonds  are  the  individual  ob- 
ligations of  the  grantors  thereof,  and  are 
not  the  obligations  of  the  railroad  company, 
notwithstanding  a  statute  which  declares 
that  upon  the  conveyance  of  the  properly 
of  a  company  under  a  mortgage  or  decree 
the  purchaser  "shall  forthwith  be  a  corpo- 
ration by  any  name  which  may  be  set  forth 
in  the  said  conveyance,  or  in  any  writing 
signed  by  him."  Holland  v.  Lee,  40  Am.  &* 
Eng.  R.  Cas.  379.  71  Afd.  338,  18  Atl.  Rep. 
661. 

By  the  terms  of  the  deed  it  was  stipulated 
that  the  lien  might  be  enforced  against  the 
purchaser,  "or  whoever  may  be  in  posses- 
sion of  the  property  hereby  conveyed." 
Held,  that  the  fact  that  no  demand  for  pay- 
ment was  made  upon  the  obligors  when  the 
first  bond  matured,  but  was  made  at  the 
office  of  the  railroad  company  and  notice 
of  foreclosure  was  served  upon  it  only,  is 
not  sufficient  to  show  that  the  obligors 
were  not  regarded  as  personally  liable. 
Holland  v.  Lee,  40  Am.  <S-»  Eng.  R.  Cas.  379, 
71  Md.  338.  18  Atl.  Rep.  661. 

252.  Sviiat  title  passes,  {;enernlly. 
— The  title  of  a  purchaser  at  a  foreclosure 
sale  of  a  railroad  is  not  affected  by  notice 
of  an  adverse  claim  under  an  invalid  decree. 
Central  Trust  Co.  v.  Florida  R.  &*  N,  Co., 
46  Am.  &■•  Eng.  R.  Cas.  370,  43  Fed.  Rep. 

75'- 
Where  a  company,  under  authority  of 


MORTGAGES,  2a»-2S5. 


603 


a. 


law,  executes  a  mortRaRC  or  deed  of  trust 
upon  all  its  property,  both  real  aiul  personal, 
including  its  franchise,  and  the  same  is  duly 
recorded  in  the  several  counties  through 
which  the  road  runs,  a  purchaser  of  such 
property  under  a  valid  foreclosure  of  the 
mortgage  will  take  the  same  free  of  all  sub- 
sequent liens  and  encumbrances.  The  title 
of  the  purchaser,  for  the  purpose  of  cutting 
oti  all  intervening  liens,  will  relate  back  to 
the  date  of  the  record  of  the  mortgage. 
Cooper  V.  Corbin,  13  Am,  tS-  Eng.  K.  Las, 
394,  105  ///.  224. 

Where  a  right  of  way  is  conveyed  to  a 
company,  the  easement  may  be  assigned  or 
conveyed,  and  if  there  is  no  abandonment  of 
the  use,  it  will  pass  to  the  purchaser  under 
a  foreclosure  of  a  mortgage  executed  by  the 
company,  embracing  all  of  its  rights  and 
property.  Columbus,  //.  <S«»  G.  K,  Co.  v. 
Jiitii/fH,  no  Ittd.  558,  9  West,  Rep.  193,  11 
A'.  E.  Rep.  357.  —  Reviewino  Ingalls  v, 
Byers,  94  Ind.  134. 

Under  the  statute  authorizing  a  company 
to  borrow  money  to  construct,  complete, 
improve,  or  operate  its  road,  and  to  give 
mortgages  therefor,  a  purchaser  may  ac- 
quire title  to  the  road  by  side  made  under 
a  power  conferred  in  such  a  mortgage,  or 
title  may  be  acquired  by  purchase  under 
judicial  sale  to  pay  such  indebtedness. 
After  such  a  sale  the  corporate  existence 
continues,  and  the  purchaser  becomes  in 
cfTect  a  stockholder  of  the  corporation. 
Culf,  C.  &*  S.  F.  R.  Co.  v.  Morris.  35  Am. 
&>  Eiig.  R.  Cas.  94,  67  Tex.  692,  4  S.  IF. 
Rep.  156. 

ii53.  When  piirelin8cr  gets  n  fee. 
—A  railroad  mortgage  made  to  trustees 
without  words  of  inheritance,  but  empow- 
ering the  trustees,  on  default,  to  sell  the 
mortgaged  premises,  and  to  convey  to  the 
purchaser  "all  the  estate,  ri^ht,  property, 
and  interest,  and  to  the  same  extent  as  the 
niilroad  company  had  therein  at  the  date  of 
the  mortgage,"  etc.,  will  be  rectified  so  as 
to  convey  a  fee.  The  court  may  direct  the 
trustees  to  convey  all  their  title  to  the  pur- 
chaser at  the  foreclosure  sale  in  aid  of  the 
execution.  Coe  v.  AVrt/  Jersey  .Midland  R. 
Co.,  31  N. /.  Eq.  105;  rei'ersed  in  34  N.  J. 
E</.  266. 

254.  Purchaser  of  franchise  takes 
cum  niiere. — A  railroad  was  chartered  to 
a  designated  place,  and  tlie  township  in 
which  the  place  was  situated  voted  a  tax  in 
aid  of  the  railroad.    Subsequently  the  road 


was  sold  and  defendant  became  the  owner, 
and  in  forming  a  connection  with  other 
roads  ceased  to  operate  the  last  eleven 
miles  of  the  road.  I/eld,  that  the  obliga- 
tion to  operate  the  road  to  its  terminus  was 
a  part  of  the  franchise,  and  defendant  in 
purchasing  the  road  at  a  foreclosure  sale 
took  it  burdened  with  that  obligation,  and 
it  was  proper  for  the  railroad  commission- 
ers to  order  it  to  operate  the  whole  road. 
State  V.  Central  /tmui  R,  Co.,  71    Iinua  410, 

32  A'.   /F.  AV/.  409.— UlSTINGUISHINCi  Mus- 

catine  Western  R.  Co.  v.  Horton,  38  Iowa 
33;  Covington  &  L.  R.  Co.  v.  Kenton 
County  Court,  12  B.  Mon.  (Ky.)  144. 

1255.  Purchaser  at  sale  luadc  sub- 
ject to  Ileus.— The  purchasers  of  railroad 
property,  under  a  decree  of  foreclosure  ex- 
pressly providing  that  the  purchasers  should 
take  subject  to  such  liens  as  might  be  es- 
tablished in  a  reference  to  a  master  then 
pending,  cannot  contest  the  validity  of 
such  liens  while  retaining  the  property, 
though  it  be  on  the  ground  of  fraud  dis- 
covered after  confirmation  of  the  master's 
report  fixing  the  amount  of  the  liens. 
Swann  v.  Wright,  17  Am.  &*  Fng.  R.  Cas. 
345,  no  U.  S.  590,  4  Sup.  Ct.  Rep.  235.— 
Di.STiNOUiSHEU  IN  Williams  v.  Morgan, 
1 1 1  U.  S.  684. 

Where  a  foreclosure  decree  provides  that 
the  road  shall  be  sold  subject  to  certain 
undue  receiver's  certificates,  including  prin- 
cipal and  interest,  the  purchasers  of  the 
road  cannot  insist  that  the  lien  exists  only 
to  the  amount  originally  paid  for  such  cer- 
tificates. Central  A'at.  Bank  v.  Hasard,  30 
Fed.  Rep.  484,  24  Rlatc/i/.{U.  S.)  310. 

Where  a  foreclosure  decree  constitutes 
certain  classes  of  claims  a  lien  on  the  road 
prior  to  that  of  the  mortgage  bonds,  and 
directs  a  sale  subject  to  such  lien,  a  pur- 
chaser cannot  object  to  the  payment  of  a 
claim  which  belongs  to  one  of  the  classes 
provided  for.  St,  Louis  S.  W.  R.  Co.  v. 
Stark,  55  Fed.  Rep.  758.— FuLi.owKD  IN  St. 
Louis  S.  W.  R.  Co.  7'.  Graham,  56  Fed. 
Rep.  258. 

Where  a  decree  of  foreclosure  for  the 
sale  of  a  railroad  contiiins  a  clause  that  the 
purchaser  thereunder  shall  be  liable  for 
certain  outstanding  indebtedness  or  deben- 
tures secured  by  the  mortgage  foreclosed, 
and  such  condition  is  inserted  in  the 
sheriflf's  deed  issued  in  pursuance  of  the 
sale  created  in  said  decree,  the  purchaser  is 
liable  in  personam  for  the  amount  of  in- 


■Wff 


^Ml 


m' 


504 


MORTGAGES,  250-25U. 


(lcl)tL-(lness  thus  secured,  and  tlic  action  Ih 
not  hascd  on  the  decree.  Eihimvillc  &^  /. 
A'.  Co.  V.  Frank,  3  /;/(/.  ////.  y6,  2y  A'.  A'. 
l\ip.  4iy. 

liiindholders  purcliased  a  railroad  under 
a  foreclosure  decree  providing  that  the 
|iro|ierty  should  be  taken  subject  to  tlie 
iiiterveninK  claims  then  before  the  court 
wliicli  ml^ht,  on  further  adjudication,  be 
adjudged  prior  lietis.  AincMig  the  claims 
was  one  to  reimburse  a  surety  on  an  In- 
junction bond,  given  by  the  railroad  to  en- 
join an  execution,  which  the  surety  had 
paid.  Held,  that  the  purchasers  were 
bound  to  take  notice  of  this  claim,  it  hav- 
ing been  presented  by  petition,  and  the 
property  in  their  hands  was  held  subject  to 
the  claim.  Union  Trust  Co.  v.  Morrison, 
33  /////.  (S«»  Etig.  A'.  Ctis.  33,  125  U.  S.  591,  8 
Sup.  Ct.  Rep.  1004. 

A  decree  of  foreclosure  of  a  railroad 
provided  that  the  purchasers  should  take 
the  property  subject  to  all  claims  that 
might  be  presented  in  six  months.  The 
decree  of  confirmation  made  them  liable 
for  claims,  omitting  the  six-months'  limita- 
tion. Held,  as  this  decree  was  not  objected 
to,  nor  appealed  from,  that  the  purchasers 
were  bound  for  a  claim  not  presented  in  six 
months.  Olcott  v.  Headrick,  141  U.S.  543, 
12  Sup.  Ct.  Rep.  81. 

A  defendant  in  a  foreclosure  suit  in  a 
federal  court  obtained  leave  to  establish  a 
vendor's  lien  on  the  road  in  a  state  court, 
and  the  records  in  both  courts  fully  showed 
the  proceedings  had  and  that  the  lien  was 
established.  Held,  that  the  purchaser  of 
the  road  at  a  subseqtient  foreclosure  sale 
was  charged  with  notice  of  what  was  done 
in  the  courts  touching  such  lien.  Lootnis 
V.  Davenport  &*  St.  P.  R.  Co.,  3  McCrary 
(U.  S.)  489,  17  Fed.  Rep.  301. 

250.  Piircliiisur  tit  hiiIc  iiiidvr  fore- 
closure of  junior  iiiort{;aj||i:e. — County 
bonds  issued  to  aid  a  company  were  pay- 
able upon  construction  of  the  railroad 
through*ihe  county  by  1892.  Before  that 
the  company  received  the  bonds  and  exe- 
cuted a  first  UKjrtgage  to  secure  the  county 
against  tiie  interest  and  the  bonds  in  case 
the  road  was  not  constructed  by  1892.  The 
company  hypothecated  part  of  the  bonds. 
Under  sec;)nd  and  third  mortgages  after- 
wards executed,  in  a  general  creditor's  suit, 
the  railroad  was  sold  subject  to  the  first 
mortgage.  The  proceeds  were  partly  ap- 
plied to  redeem  the   hypothecated  county 


bonds.  Held,  that  the  purchasers  arc  not 
entitled  to  the  redeemed  bonds  unless  they 
lirst  refund  t(j  the  general  creditors  as 
much  of  the  proceeds  of  the  sale  as  went  to 
redeem  them.  Was/iini^ton,  O.  &*  IV.  R. 
Co.  v.  Lewis,  30  ,-/;//.  ^^  Fuj^.  R,  Cas.  468,  83 
I' a,  24O,  2  S.  F.  Rep.  74O. 

257.  Piirclmsei  tu;(;oiiiitiiii(  with 
Nviiior  iiiortifjmee.— Where  there  is  a 
foreclosure  sale  under  .1  subsequent  mcjrt- 
gage  while  a  prior  inortj-^agee  is  in  posses- 
sion, and  the  sale  is  subj'/ct  to  the  prior 
mortgage,  the  purchaser  is  presumed  to 
have  bid  only  the  amount  actually  due  on 
the  mortgage,  and  is  entitled  to  an  account- 
ing with  the  senior  mortgagee  to  ascertain 
what  is  actually  due.  Lafayette  Co.  v.  Neely, 
17  //;;/.  (f^*  Fng.  R.  Cas.  242,  21  Fed.  Rep. 

738- 

And  in  ascertaining  the  amount  actually 
due  the  mortgagee  should  be  allowed  for 
all  pernianent  improvements  and  necessary 
expenses  during  the  time  he  was  in  posses- 
sion, and  also  the  amount  of  all  encum- 
brances paid  before  the  sale.  Lafayette  Co. 
v.  Neely,  17  Am.  &*  Fng,  R.  Cas.  242,  21 
Fed.  Rep.  738. 

258.  Pureliascr  takes  Hiibjcct  to 
lien  for  taxes. — A  purchaser  of  a  railroad 
at  a  foreclosure  sale  takes  it  subject  to  a 
lien  for  taxes  thereon,  and  cannot  demand 
payment  of  such  taxes  out  of  the  fund  in 
court.  Osterierg  V.  Union  Trust  Co. ,  g^  U, 
S.  424. 

Under  Tenn.  Act  of  1877,  ch  12,  author- 
izing purchasers  of  a  railroad  at  :\  foreclo- 
sure sale  to  form  a  new  corporation,  the 
company  thus  organized  takes  the  property 
and  franchises  subject  to  the  same  taxation 
a?  applied  to  the  former  company,  and  this 
is  so  though  the  second  company  take  addi- 
tional steps  to  perfect  the  new  organization. 
Chesapeake,  O.  .S^  .S".  W.  R.  Co.  v.  Lauder- 
dale County,  16  Lea  (Tenn.)  688,  1  S.  IV. 
Rep.  48. 

250.  How  far  piireliaser  must  take 
iiotiee  of  rights  of  landowners  alonf; 
line  of  roa<l.*— The  purchaser  of  a  rail- 
road, whether  at  a  judicial  sale  or  otherwise, 
is  bound  to  take  notice  of  the  rights  of  land- 
owners along  the  line  to  private  crossings, 
cattle-ways,  etc.,  in  use  by  them  under  con- 
tract, oral  or  otherwise,  with  the  company 

*  Liability  of  purchaser  at  foreclosure  sale 
to  compensate  landowner,  see  note,  44  Am.  & 
Eng.  R.  Cas.  72. 


~ 


MOKTGAGES,  UOO-203. 


505 


which  built  tlic  road,  and  cannot  interfere 
to  destroy  or  impair  such  rights.  Swan  v. 
iUirliiiiiton,  C.  A',  il-^  A'.  A'.  Co.,  7 2  /owii  6^0, 
34  A'.  U'.  l\ep.  457.--UiSTiNt;uisnKU  IN 
Hunter  v.  Hurliiiijton.C.  R.&  N.  U.  Co.,  76 
Iowa  490,41  N.  \V.  Kep.  305.  Fom.owko 
IN  Uock  Island  &  V.  K,  Co.  -  .  Uiniicic,  144 
III.  628. 

A  parol  agreement  made  by  the  presi- 
dent of  a  railroad  ccjmpany  to  make  a  cer- 
tain farm  crossing,  and  to  maintain  a  fence 
of  a  certain  description  through  a  tract  of 
land,  is  not  binding  on  a  subsequent  pur- 
chaser of  the  road  at  a  foreclosure  sale. 
Hunter  v.  Jiiirlin^i;ton,  C.  A'.  iS-  A'.  A".  L'o„ 
76  l<nmi  490,  41  A'.  II'.  Kep.  305,— Distin- 
guishing Swan  V.  Burlington,  C.  K.  &  N. 
R.  Co.,  72  Iowa  650. 

Where  a  right  of  way  is  granted  to  a 
railroad  company  in  consideration  of  a  free 
pass  over  the  road  ro  the  grantor,  the  con- 
sideration is  a  part  of  the  purchase  money, 
and  the  company  remains  personally  re- 
sponsible for  its  fulfilment ;  but  the  pur- 
chaser of  the  road  at  a  foreclosure  sale  is 
not  liable  in  damages  for  a  failure  to  grant 
a  free  pass,  although  the  land, may  remain 
subject  to  the  lien  to  secure  the  performance 
of  the  condition  of  the  grant.  Helton  v. 
St.  Louis,  K.  &*  N.  IV.  K.  Co.,  25  Mo. 
App.  322. 

200.  Liability  for  debts  of  iiiort- 
{;agur  company.*—  Purchasers  of  the 
property  and  franchises  of  a  railroad  at  a  fore- 
closure sale  do  not  thereby  become  liable 
for  the  debts  and  contracts  of  the  company, 
in  the  absence  of  any  law  or  decree  directly 
making  them  liable.  Hoard  v,  Chesapeake 
&^  O.  R.  Co.,  123  U.  S.  222,  8  Sup.  Ct.  Rep. 
74.— Following  Chesapeake  &  O.  R.  Co. 
V.  Miller,  114  U.  S.  176. 

Where  a  consent  foreclosure  decree  pro- 
vides that  the  purchaser  shall  "  pay,  satisfy, 
and  fully  discharge  all  debts  and  liabilities 
of  such  receivership  of  every  kind  now  re- 
maining unpaid,"  the  purchaser  is  bound  to 
discharge  a  judgment  against  the  company 
on  a  claim  for  damages  which  exists  against 
the  receiver.  Wabash  R.  Co.  v.  Stewart, 
41  ///.  App.  640. 

Mich.  Act  96  of  1859  permits  the  purchas- 
ers on  a  foreclosure  sale  of  the  track  and 
appurtenances  of  a  railway  company  to  ex- 

*  Purchasers  at  foreclosure  sale  not  liable  for 
debts  of  comp<iny,  see  notes,  30  Am.  &  Enu.  R, 
Cas.  155;  17  Id.  242. 


crcisc  the  charter  powers  of  the  corpora- 
tion on  certain  conditions,  and  frees  them 
from  liability  for  any  debts  embraced  in 
the  foreclosure.  Cook  v.  Detroit,  G.  //.  &* 
M.  R.  Co.,  9  Am.  ijf  A>/(,'.  A'.  Cas.  443,43 
Mich.  349,  5  A'.  IV.  Rep.  390. 

A  common  law  action  for  the  debt  of  a 
railway  cc^rporation  cannot  be  maintained 
against  those  who  have  obtained  control  of 
its  franchises  by  a  purchase  of  its  track  and 
appurt'jnancfson  foreclosure  of  a  mortgage 
securing  other  indebtedness.  Cook  v.  De- 
troit, G.  II.  6-  M.  R.  Co.,  9  Am.  &^  Eti);.  R. 
Cas.  443,  43  Mich.  349,  5  A'.  W.  Rep.  390. 

A  mortgagee  of  railway  property  purchas- 
ing at  his  own  foreclosure  sale,  made  under 
a  mortgage  executed  subject  to  the  provi- 
sions of  Tenn.  Act  of  1877,  in  a  proceeding 
to  which  the  claimants  given  priority  by 
that  act  weic  not  parties,  is  not  protected, 
as  an  innocent  purchaser,  against  such  pre- 
ferred claims.  Frazier  v.  East  Tenn.,  V. 
&•  G.  R.  Co.,  40  Am,  vV*  Eng.  R.  Cas.  358,  88 
Tenn.  138,  12  S.  W.  Rep.  537. 

tSOl.  Liability  as  respectH  niccliaii- 
ic(*'  iieiiH. — Where  a  party  who  has  fur- 
nished materials  to  be  used  in  the  construc- 
tion and  repair  of  a  railroad  intervenes  in 
a  foreclosure  suit  and  asks  to  t»  paid  out 
of  the  earnings  of  the  road,  but  expressly 
states  in  his  petition  that  no  mechanics' 
lien  is  claimed,  a  purchaser  at  a  foreclosure 
sale  is  not  bound  to  take  notice  of  the  claim 
for  such  lien.  Hale  v.  liurlington,  C.  R. 
&-  A'.  A".  Co.,  2  McCrary  (U.  S.)  558,  13  Fed. 
Rep.  203. 

202.  Position  of  niortKagor's  pres- 
ident as  piireliaser.— Where  property  is 
sold  at  a  public  foreclosure  sale  at  which  all 
persons  are  authorized  to  bid,  the  mere  fact 
that  the  president  of  the  company,  in  his 
individual  right,  purchases  the  property 
will  not  in  itself  create  a  trust  relation  be- 
tween him  and  bondholders  so  as  to  give 
the  bondholders  the  right  to  treat  the  presi- 
dent as  holding  as  trustee.  Credit  Co.  v.  Ar- 
kansas C.  R.  Co.,  5  McCrary  {U.  S.)  23,  15 
Fed.  Rep.  46. 

2Hn.  Itiglits  of  bondliolders  as 
piircliasers. — A  foreclosure  decree  of  a 
railroad  permitting  the  mortgage  bond- 
holders to  bid  in  the  property  and  pay  in 
their  bonds  is  not  only  allowable,  but  often 
highly  advantageous.  Such  bondholders 
may  combine  to  buy  the  property,  but  not 
to  prevent  others  from  buying.  Ketchum  v. 
Duncan,  96  U.  S.  659.— Distinguished  in 


506 


MORTGAGES,  204-266. 


South  Covington  &  C.  St.  R.  Co.  v.  Gest,  34 
Fed.  Rep.  628. 

204.  PiireliiiNer,  when  trustee  for 

ered ".tors. —When;  diiectors  of  a  road 
enter  i-ito  an  arrangement  witli  persons  to 
purchase  the  road  at  much  below  its  actual 
value,  by  which  the  directors  escape  liabil- 
ity aa  indorsers  for  the  company,  the  cred- 
itors of  tiie  company  may  liold  the  pur- 
chasers liable  as  trustees  to  the  full  value 
of  the  property  after  deducting  certain 
claims  due  to  themselves  from  the  com- 
pany ;  and  they  may  be  charged  with  in- 
terest on  any  balance  found  due  the  cred- 
itors from  the  day  of  sale  to  the  lime  a 
decree  is  entered  setting  aside  tlie  sale. 
Drury  v.  Cross,  7  Wall.  {U.  S.)  299. 

The  circumstance  that  purchasers  of  the 
effects  of  a  corporation  sold  under  fore- 
closure proceedings  have  surrendered  them 
to  another  corporation  created  with  the 
same  or  similar  powers  does  not  by  itself 
warrant  the  inference  of  an  agreement  be- 
fore the  sale  thus  to  convey  it.  AIUh  v. 
Montgomery  R.  Co.,  11  Ala.  437. 

205.  Coiiipensation  for  iiiiprove- 
iiieiits  by  purchaser  in  bad  faith.— 
In  Louisiana,  where  a  railroad,  in  a  state  of 
complete  dilapidation  and  ruin,  was  sold 
under  a  mortgage,  under  circumstances  im- 
porting some  fraud  in  the  purchasers  which 
induced  the  co^rt  to  set  the  sale  aside 
and  order  a  resale,  such  purchasers,  though 
deemed  possessors  in  bad  faitli,  are  entitled 
by  the  spirit  of  article  508  of  the  Civil  Code 
to  conipen'^ifion  for  reconstructing  and  re- 
pairing tht  r /ad  and  putting  it  in  working 
order.    Jackson  v.  Ludeling,  99  U.  S.  513. 

Whatever  question  may  exist  about  com- 
pensation for  intrusion  or  inseparable  ame- 
liorations and  improvements  made  by  a 
possessor  in  bad  faith,  there  is  no  question 
about  Ills  right  to  be  reimbursed  for  nec- 
essary repairs,  both  according  to  the  general 
civil  law  and  the  2314th  article  of  the  Civil 
Code  of  Louisiana.  Jackson  v.  Ludeling, 
99  U.  S.  513. 

It  seems  to  be  held  in  Louisiana,  contrary 
to  former  decisions,  that  compensation  will 
not  be  allowed  to  the  possessor  in  bad  faith 
for  inseparable  improvements  to  land,  such 
as  clearing  and  ditching;  but  the  recon- 
struction and  putting  in  working  order  of  a 
railroad,  thereby  restoring  it  to  its  normal 
condition,  partake  so  much  of  the  nature  of 
repairs  that  compensation  therefor  is  re- 
quired by  an  equitable  construction  of  arti- 


cle 508  of  the  Civil  Code.  Jackson  v.  Ludel- 
i>ig<  99  U.  S.  513. 

The  rule  of  compensation  in  such  a  case 
is  to  allow  .credit  to  the  possessors  for  the 
value  of  the  materials  of  the  improvements 
yet  in  existence,  and  the  cost  01  the  labor 
bestowed  thereon  ;  but  not  for  the  improve- 
ments which  have  been  consumed  in  the 
use,  and  not  to  exceed  the  value  of  the  im- 
provements when  delivered  up.  Interest 
on  the  outlay  of  the  possessors  will  also  be 
allowed  to  an  amount  not  exceeding  the 
net  earnings  or  fruits  received  froni  the 
improvements.  They  will  be  accouniable, 
however,  for  all  fruits  received  by  them 
from  the  property.  Jackson  v.  Ludeling, 
99  U.S.  513. 

For  any  balance  found  to  be  due  them  on 
such  an  accounting  the  possessors  will  have 
a  lien  on  the  property.  Jackson  v.  Ludel- 
ing,99  U.  S.  513. 

2C(0.  Uit;hts  of  purchaser  in  liti- 
gation subsequent  to  sale. — A  success- 
ful bidder  at  a  railway  foreclosure  sale  be- 
comes so  far  a  party  to  the  suit  as  to  enti- 
tle him  to  be  heard  in  matters  affecting 
his  interest  subsequently  arising.  Davis  v. 
Mercantile  Trust  Co.,  152  U.  S.  590,  14  Sup. 
Ct.  Kep.  693. 

If  the  decree  of  sale  requires  the  pur- 
chasers tc  pay  down  a  specified  sum  in  cash, 
and  to  pay  such  further  portions  of  their 
bid  in  cash  as  may  be  necessary  to  meet 
such  other  claims  as  the  court  may  adjudge 
to  be  prior  in  equity  to  the  mortgages,  the 
purchasers  have  no  interest  in  the  applica- 
tion of  tlie  sums  which  the  court  requires 
to  be  paid  in  cash,  whether  the  payments 
are  to  be  made  for  the  benefit  of  the  bond- 
holders, or  partly  for  the  benefit  of  the 
bondholders  and  partly  for  the  benefit  of  per- 
sons holding  claims  against  the  mortgagor, 
and  they  are  not  entitled  to  appeal  from  a 
decree  requiring  payment  of  a  claim  for 
rentals  and  for  tlie  purchase  price  of  rolling 
stock.  Central  Trust  Co.  v.  Grant  Loco- 
motive Works,  43  Am.  6^  Eng.  N.  Cas.  503, 
135  U.  S.  207,  10  Sup.  Ct.  A'ep.  736. 

Where  a  foreclosure  sale  is  ordered  be- 
fore the  rights  of  intervening  claimants  arc 
determined,  and  the  court  reserves  the  power 
to  determine  the  rights  of  the  parties  after 
the  sale,  and  to  declare  certain  claims  liens 
prior  to  the  mortgage,  upon  confirmation 
of  the  sale  the  purchaser  should  make  him- 
self a  party  by  filing  a  petition  of  interven- 
tion or  a  supplemental  bill ;  and  if  he  is  a 


MORTGAGES,  267. 


507 


Hid- 

:ase 

the 

pnts 

ibor 

3ve- 

tiie 

irn- 

rcst 

be 

the 

the 

tblc. 

lem 


non-resident,  he  should  appear  by  attorney  ; 
and  if  he  fail?  thus  to  make  himself  a  party, 
the  court  should  make  him  a  party  anyhow. 
Fits^erald  v.  Evans,  49  Feii.  Rep.  426,  4  U. 
S.App.  154.  1  C.  C.A.  307. 

Where  a  street  railroad  had  been  sold 
UTider  a  decree  foreclosing  a  mortgage  to 
secure  its  bonds,  and  the  decree  provided 
tiiat  tiic  bonds  as  paid  should  be  filed  in  the 
case,  the  purcliaser,  who  was  also  a  creditor, 
cannot  be  compelled,  on  motion  of  a  party 
from  whom  he  had  received  certam  bonds 
to  use  in  making  said  purchase,  but  who  was 
not  a  party,  to  produce  and  file  the  bonds 
which  said  creditor  who  made  the  motion 
had  received  back  from  the  purchaser,  and 
had  in  his  own  possession.  A  controversy 
between  the  purchaser  and  such  holder  of 
bonds  as  to  their  debit  and  credit  account 
cannot  be  settled  on  such  a  motion,  but  is  a 
subject  for  a  separate  litigation.  Euston  v. 
Peiuileton  St.  R.  Co. ,  2  Cin.  Super.  Ct.  64. 

A  purchaser  at  a  receiver's  sale  of  a  rail- 
road, on  the  ground  of  the  interest  thereby 
iicquired,  was  admitted  a  defendant  in  a  suit 
to  foreclose  a  first  inuitfjage  on  the  property 
of  the  railroad,  but  \.iih  the  right  only  to 
appet>r  at  the  taking  of  the  account  of  the 
amount  due  on  the  mortgage,  and  to  be 
notiliedof  the  taking  of  the  account.  A  de- 
cree had  been  made  that  the  complainants 
were  entitled  to  a  sale  of  the  mortgaged 
preinises  to  pay  the  amount  due  thereon. 
Before  the  master's  report  was  made  the 
purchaser  had  lost  all  his  interest  in  the 
mortgaged  premises  by  reason  of  a  sale 
thereof  under  foreclosure  of  a  second  mort- 
gai;e.  Held:  (1)  that  he  had  no  interest  in 
the  suit  to  entitle  him  to  have  the  final  de- 
cree therein  opened,  and  the  execution  set 
aside,  because  he  was  not  notified  of  the 
taking  of  th^  account ;  (2)  that  any  interest 
he  might  have  by  reason  of  his  ownership  of 
any  bonds  secured  by  complainants'  mort- 
gage COP  J  be  protected  by  proceedings  to 
prevent  injustice  in  the  distribution  by  the 
trustees  of  the  proceeds  of  sale.  U'ardv, 
Monichiir  R.  Co.,  26  i\.  /.  E,/.  260. 

a«7.  Writ  of  nHsistaiicc.  —  Where 
railroad  property  has  been  sold  under  a  fore- 
closure decree,  and  the  court  has  directed 
the  receiver  to  turn  it  over  to  an  assignee  of 
tlie  purchaser,  the  court  reserving  the  right 
to  resume  possession  if  the  assignee  should 
fail  to  pay  in  any  part  of  the  purchase  mon- 
ey, this  brings  the  assignee  within  a  rule 


of  court  proiriding  that  every  person  not  a 
party  to  a  cause  in  whose  favor  an  order  has 
been  made  shall  be  enabled  to  enforce  obe- 
dience to  such  order  by  the  same  process 
as  if  he  were  a  party  to  the  cause,  and  such 
assignee  may  have  a  writ  of  assistance 
against  anotlier  compaiiy  ".hich  refuses  to 
surrender  the  road.  Farmers'  L.  &>  T.  Co. 
V.  Chicago  &^  A.  R.  Co.,  44  Fed.  Rep.  653. 

Aftera  foreclosure  suit  had  been  instituted 
the  company  leased  to  another  company  the 
joint  use  of  a  part  of  the  road  for  a  term  of 
twenty  years;  but  the  foreclosure  decree  pro- 
vided that  the  purchaser  should  be  at  liberty 
to  disclaim  any  lease  or  contracts  entered  in- 
to by  the  company  after  the  beginning  of  the 
suit.  Held,  that  the  right  of  the  purchaser 
to  abandon  the  lease  was  not  affected  by  re- 
ceiving rent  by  the  receiver  during  the  pen- 
dency of  the  suit.  In  such  case  all  right  of 
possession  in  the  lessee  company  ceased 
when  it  was  notified  that  the  purchaser  in- 
tended to  abandon  the  lease.  Farmers'  L. 
&•  T.  Co.  V.  Chicago  &*  A.  R.  Co.,  44  Fed. 
Rep.  653. 

Soon  after  such  sale  the  purchaser  notified 
the  lessee  company  that  it  would  abandon 
the  lease  and  forbid  the  use  of  the  road  after 
thirty  days  from  the  time  of  giving  the 
notice.  Held,  that  the  receipt  of  rent  for  the 
thirty  days  was  not  such  a  consent  to  the 
lessee's  possession  as  to  constitute  it  a  ten- 
ant from  year  to  year,  especially  when  the 
rent  was  received  with  an  express  statement 
that  it  should  be  without  prejudice  to  the 
rights  of  the  purchaser.  The  case  would  not 
come  within  Ind.  Rev.  St.  1881,  §g  5207, 
5208,  providing  that  all  general  tenancies, 
where  the  premises  ijc&  occupied  with  the 
consent,  expressed  or  implied,  of  the  land- 
lord, shall  be  deemed  from  year  to  year,  and 
only  determined  on  three  months'  notice. 
Farmers'  L.  &•  T.  Co.  v.  Chicago  <S^  A.  R. 
Co.,  44  Fed.  Rep.  653. 

In  such  case,  where  the  indisputable  facts 
show  that  the  purchaser  never  waived  its 
right  to  abandon  the  lease,  a  federal  court 
which  had  jurisdiction  of  the  foreclosure 
sale  may  issue  a  writ  of  assistance  in  favor 
of  the  purchaser,  even  where  a  temporary 
injunction  has  issued  from  a  state  court  to 
restrain  the  purchaser  from  interfering  with 
the  lessee's  possession,  and  the  purchaser 
has  appeared  in  the  state  court.  Farmers' 
L.  6*  T.  Co.  v.  Chicago  <S-  A.  R.  Co.,  44  Fed. 
Rep.  653. 


W, . 


■i' 


508 


MORTGAGES,  208,  209. 


P    i 


c.  Distribution  of  Proceeds. 

208.  Ill  ueiieral.— Such  liens  on  the 
property  as  are  created  by  statute  siiould  be 
paid  in  preference  to  mortgage  bonds ;  but 
equitable  liens  payable  from  the  earnings  of 
the  property  should  be  paid  after  the  bonds. 
L'/iur  V.  5/.  Louts,  H.  <3-  A'.  A'.  Co.,  25  Fed. 
Rep.  232. 

The  trustees  in  a  railroad  mortgage  cannot 
as  against  a  noii-assenting  bond-liolder  jus- 
tify the  application  of  funds  in  their  hands 
to  the  securities  created  under  a  scheme  of 
reorganization,  upon  the  ground  that  the 
scheme  of  reorganization  was  tantamount  to 
and  took  the  place  of  a  distribution  after 
foreclosure,  and  that,  as  a  court  of  equity 
would,  on  such  distribution,  prefer  certain 
debts  and  obligations  over  the  mortgage 
bonds,  the  trustees  were  justified  in  giving  a 
similar  preference.  Hollister  v.  Stewart,  38 
Am.  &•  Eng.  R.  Cas.  599,  in  A'.  V.  644,  19 
A'.  E.  Rep.  782.— Reviewing  Dunham  v. 
Cincinnati,  P.  &  C.  R.  Co.,  i  Wall.  (U.  S.) 
254. 

Claims  against  the  receiver  of  an  insolvent 
railroad  corporation  for  moneys,  services, 
supplies,  damages,  and  necessary  expenses 
of  the  management  cannot  be  paid  out  of 
the  proceeds  of  the  mortgaged  property, 
which  were  insufficient  to  pay  the  mortgage 
debt.  Unless  specially  authorized  by  the 
court  to  contract  debts  on  the  faith  of  the 
property,  a  receiver  is  restricted  to  the  in- 
come and  profits  of  the  road.  Hand  v.  5a- 
vannah  6-  C  R.  Co.,  17  So.  Car.  219. — DIS- 
TINGUISHING Cowdrey  v.  Galveston,  H.  & 
H.  R.  Co..  I  Woods  (U.  S.)  336;  Myer  r'. 
Western  Car.  Co.,  102  U.  S.  13. 

200.  Distribution  aniuiit;  bond- 
lioldor-s,  sreiierally. — The  mortgagees  of 
a  railro:id  as  between  them  and  the  com- 
pany would  in  foreclosure  proceedings  be 
iiuthoiized  to  receive  the  proceeds  of  the 
sale,  but  the  company  would  have  the  right 
to  require  that,  upon  or  before  payment  of 
the  proportion  payable  upon  any  bond,  it 
should  be  produced,  and,  if  paid  in  full, can- 
celed, or,  if  paid  in  part,  such  payment  to  be 
credited  ;  but  any  question  as  to  the  party 
entitled  to  receive  the  money  on  a  bond,  or 
as  to  the  [  .'oportion  payable  on  any  bond 
lost  or  destroyed,  or  questions  which  may 
arise  between  the  mortgagees  and  any  bond- 
holder, need  not  be  anticipated  by  any  order 
to  be  made  in  the  action  between  the  parties 
to  the  foreclosure,  but  should  be  disposed 


of  when  they  arise  in  another  action,  or  in  a 
supplementary  proceeding;  and  an  order 
made  requiring  the  bondholders  to  prove 
their  claims,  and  state  the  amount  paid  for 
the  bonds,  was  erroneous.  Coe  v.  Colutnbus, 
P.  &*  I.  R.  Co.,  10  O/tio  St.  372.— Quoted 
IN  Lane  v.  Haughman,  17  Ohio  St.  642. 

A  railroad  company  before  its  consolida- 
tion with  another  company  issued  200  first 
mortgage  bonds.  Subsequently  the  consol- 
idated company  issued  its  bonds,  ;mri  set 
apart  200  of  them  to  be  exchaii,t;ccl  for  the 
200  bonds  issued  by  one  of  the  original  com- 
panies. The  holders  of  only  130  of  these 
bonds  agreed  to  exchange  and  did  so  ex- 
change them.  Default  having  been  made  in 
the  payment  of  interest  on  the  new  bonds, 
the  mortgage  was  foreclosed,  and  the  decree 
made  the  outstanding  seventy  of  the  first 
bonds  a  first  lien  on  the  road  or  the  proceeds 
of  the  sale.  After  the  foreclosure  six  of  the 
bonds  first  issued,  purchased  from  the  finan- 
cial agent  of  the  consolidated  company,  were 
presented  for  payment,  which  was  refused 
by  the  purchaser  of  the  road  on  the  ground 
that  they  were  a  part  of  the  130  bonds  ex- 
changed, and  were  therefore  fully  paid  and 
satisfied.  //^/</,  that,  there  being  nothing  to 
show  that  these  six  bonds  were  not  a  part  of 
the  seventy  outstanding,  or  that  the  owner 
was  not  a  bona  fide  holder,  they  are  entitled 
to  be  paid  out  of  the  proceeds  of  the  sale. 
Kitechind  v.  Lawrence,  46  Am.  &*  Eng.  /?. 
Cas.  319,  140  U.  5.209,  II  Sup.  Ct.  Rep.  786. 

The  president  of  a  railroad  company,  who 
was  not  a  stockholder,  loaned  the  company 
$81,000  to  aid  in  the  construction  of  its  road, 
and  the  board  of  directors  directed  the  treas- 
urer to  deliver  him  as  security  $810,000 
worth  of  the  company's  bonds.  Held,  that 
he  had  a  right  in  a  foreclosure  suit  to  prove 
the  full  amount  of  the  bonds,  and  share  in 
the  distribution  up  to  the  amount  of  his 
claim,  in  the  absence  of  any  proof  of  fraud 
or  of  undue  advantage,  or  of  the  insolvency 
of  the  company  at  the  time.  Duiicomb  v. 
New  York,  H.  <S-  iV.  A'.  Co.,  13  Am.  &*  Eng. 
R.  Cas.  84,  88  N.Y.  1 ;  affirmittg  23  Hun 
291,  mem. 

Such  president,  under  an  arrangement 
with  the  board  of  directors,  agreed  with  the 
contractors  to  deposit  the  bonds  with  trus- 
tees on  condition  that  the  trustees  should 
receive  other  bonds  then  held  by  a  trus- 
tee, to  be  used  in  completing  the  road,  but 
the  bonds  held  by  the  president  not  to  be 
used  until  the  others  had  been  exhausted, 


^Pliiip 


MORTGAGES,  370. 


609 


and  to  be  returned  if  the  contractors  failed 
to  fulfil  their  contract.  Held,  tiiat  the 
president  did  not  tlieieby  waive  his  claim 
to  the  bonds,  and  was  entitled  to  dividends 
on  those  not  used;  and  this  was  so  though 
the  trustee  was  ignorant  of  the  condition 
on  which  the  bonds  were  deposited.  Dun- 
comb  V.  Xeiu  York,  H.  &*  N.  li.  Co.,  13  Am. 
&*  Evg.  R.  Cas.  84,  88  N.  V.  1  ;  affirming 
23  Htin  291,  7nem. 

Such  company  borrowed  $25,000  from  an 
individual  and  pledged  $250,000  of  bonds 
as  security,  and  gave  a  note  for  another 
S6000  to  the  same  party  for  interest  and 
commissions,  which  was  secured  by  $20,000 
in  bonds,  and  indorsed  by  the  president. 
Subsequently  the  holder  gf  the  note  took 
judgment  thereon,  which  was  settled  by  the 
president  by  paying  half  the  principal  and 
the  interest,  and  taking  an  assignment  to 
himself  of  the  judgment  and  the  securities. 
Held,  that  the  president  was  entitled  to 
dividends  on  the  bonds  so  assigned  up  to 
the  full  amount  paid  by  him,  and  interest. 
Duncomb  v.  New  York,  H.  6>»  N.  R.  Co.,  13 
Am.  &•  Eng.  R.  Cas.  84,  88  N.  V.  i  ;  affirm- 
ing 23  Hun  291,  mem. 

An  agreement  was  made  among  certain 
holders  of  the  first  mortgage  bonds  of  an 
insolvent  company  to  purchase  at  a  judicial 
sale  "  for  the  benefit  of  the  first  mortgage 
bondholders,"  and  to  form  a  new  corpora- 
tion, etc.  Held,  that  all  first  mortgage 
bondholders  were  entitled  to  participate  in 
the  benefit  of  the  arrangement,  and  that  it 
was  not  confined  to  the  persons  who  had 
signed  the  power  of  attorney  given  the 
agent  who  made  the  purchase.  Walker  v. 
Il'/ielen,  4  P/iila.  (Pa.)  389. 

A.  sold  land  to  the  company ;  as  part  of 
the  consideration  he  was  to  receive  bonds 
secured  by  a  second  mortgage  to  be  issued. 
He  delivered  the  deed  ;  judgment  was  con- 
fessed by  the  company,  after  which  the 
mortgage  was  executed.  The  bonds  were 
tendered  to  A.;  he  refused  them  because  of 
tlie  judgments.  The  bonds  were  then 
otherwise  appropriated  by  the  company. 
Held:  (I )  that  the  setting  apart  of  the  bonds 
to  A.  gave  him  no  claim  for  their  amount 
in  the  distribution  ;  (2)  that  in  the  distribu- 
tion it  was  a  question  of  lien,  and  A.  had  no 
lien ;  (3)  the  mortgage  having  becii  given 
to  secure  the  bonds  and  A.  not  owning 
them,  he  had  no  lien,  equitable  or  legal, 
through  the  mortgage  for  the  purchase 
money  for  which  the  bonds  were  to  be  de- 


livered to  him.  Rice's  Appeal,  79  Pa.  St. 
168. 

After  A.'s  rejection  of  the  bonds  he  had 
no  further  claim  on  them  :  the  company 
could  dispose  of  them  as  tliey  pleased.  He 
had  only  a  right  of  action  against  the  com- 
pany for  the  purchase  money.  Rice's  Ap- 
peal, 79  Pa.  St.  168. 

In  the  distribution  of  a  fund  arising  from 
the  sale  of  a  railroad,  the  question  in  dis- 
pute was  as  to  the  ownership  of  fifteen  first 
mortgage  bonds.  Tiie  bonds  were  delivered 
to  T.  by  G.  and  D.  to  dispose  of  them  in 
certain  specified  ways  upon  the  fulfilment 
or  non-fulfilment  of  two  certain  conditions. 
T.  had  transferred  the  bonds  to  the  Penn- 
sylvania R.  Co.,  which  claimed  under  them 
in  the  distribution.  Held,  that,  on  the  fail- 
ure of  the  Pennsylvania  R.  Co.  to  show 
when  and  how  and  for  what  consideration 
they  obtained  the  bonds,  the  fund  must  go 
to  G.  and  D.,  in  accordance  with  the  pro- 
visions of  the  trust,  by  virtue  of  which  they 
were  held  by  T.,  the  other  of  the  two  con- 
tingencies not  having  occurred.  McElrath 
V.  Pittsburgh  6-  5.  R.  Co.,  15  P/iila.  (Pa.) 
236. 

270.  Holders  of  bonds  as  collat- 
eral.— Where  a  mortgage  to  secure  nego- 
tiable bonds  is  foreclosed,  persons  holding 
bonds  which  have  been  transferred  as  col- 
lateral security  may  prove  the  entire  amount 
of  bonds  held,  but  should  only  be  allowed 
to  recover  the  amount  of  the  original  debt, 
with  interest.  Aforton  v.  Neia  Orleans  &•  S. 
R.  Co.,  79  Ala.  590.  Ne7vport  (5-»  C.  Bridge 
Co.  V.  Douglass,  12  Push  (Ky.)  673,  18  Am. 
Ry.  Rep.  221.  Duncomb  v.  New  York,  H. 
&*  N.  R.  Co.,  4  Am.  &-  Eng.  R.  Cas.  293,  84 
A'.  I'.  190;  re7>ersing  23  Hun  291. — Re- 
viewed IN  Morton  v.  New  Orleans  &  S.  R. 
Co.,  79  Ala.  i^.— Rice's  Appeal,  79  Pa.  St. 
168. 

A  bank  loaning  money  to  a  railroad,  ex- 
pecting payment  from  a  sale  of  bonds,  is 
only  a  common  creditor,  and  is  not  entitled 
to  be  paid  from  a  fund  arising  from  a  fore- 
closure sale  in  preference  to  bondholders 
because  the  company  was  heavily  indebted 
at  the  time  of  the  loan,  and  used  its  current 
earnings  to  keep  down  interest  and  to  make 
permanent  improvements.  Penn  v.  Cal- 
houn, 121  U.  S.  ^l\,^  Sup,  Ct.  Rep.  90G. 

Holders  of  first  mortgage  bonds  con- 
tracted with  certain  brokers  to  sell  the 
bonds,  and,  when  only  a  portion  of  them 
had  been  delivered  to  the  brokers,  fraudu* 


I 
I 


At  I 


'  !■   If'* 


i  } 


510 


MORTGAGES,  271-275. 


lently  procured,  through  the  brokers,  the 
bonds  to  be  listed  on  a  stock  exchange, 
which,  together  with  the  standing  of  the 
brokers  and  their  representations,  gave 
them  a  fictitious  value.  Persons  who  loaned 
money  to  the  brokers  on  such  bonds  were 
afterwards  compelled  to  buy  in  the  bonds. 
Held,  that  this  was  not  such  fraud  as  en- 
titled them  to  priority  in  the  application  of 
the  proceeds  of  a  foreclosure  sale  to  satisfy 
the  bonds.  Coe  v.  East  &*  IV.  K.  Co.,  52 
J\d.  Rip.  531. 

271.  Distribution  pro  rata.— A  rail- 
road mortgage  to  secure  bondholders  was 
foreclosed,  and,  the  fund  arising  therefrom 
being  iiisutlicient  to  pay  all  the  bonds  in 
full,  the  court  ordered  a  distribution  pro 
rata  among  such  bondholders  as  had  come 
in  and  proved  their  claims.  After  some 
had  been  paid  other  bondholders  came  in, 
proved  tlieir  claims,  and  participated  in  the 
distribution  of  the  remainder  of  the  funds. 
Held,  that  this  was  error.  The  only  way  in 
wliich  the  other  bondholders  could  come  in 
was  to  recast  the  whole  account  and  to  de- 
clare a  smaller  dividend,  requiring  each  one 
who  had  been  paid  to  refund  a  pro  rata 
share.     Pinkard  v.  Allen,  75  Ala.  73. 

The  principle  which  prevails  at  law  as  to 
the  distribution  of  money  among  execution 
creditors  is  not  always  applied  m  equity. 
So  where  a  railroad  mortgage  is  foreclosed 
to  secure  first  and  second  mortgage  bond- 
holders, the  money  should  be  distributed 
pro  rata  among  the  bondholders  entitled  to 
a  first  lien,  and  the  residue  among  the 
holders  entitled  to  a  second  lien,  without 
regard  to  the  time  at  which  their  several 
liens  accrued.  Morton  v.  Ne^v  Orleans  <S~« 
S.  li.  Co.,  79  Ala.  590. 

273.  Priority  among:  coupons.— In 
directing  the  distribution  of  the  proceeds 
of  the  sale  of  a  railroad  mortgaged  to  se- 
cure registered  coupon  bonds,  unpaid  cou- 
pons or  interest  belonging  to  a  class  in 
which  a  part  of  the  coupons  or  of  the  in- 
terest had  been  paid  should  be  paid  before 
coupons  or  interest  falling  due  at  a  later 
period,  and  before  the  principal  of  any  of 
the  bonds ;  and  coupons  detached,  and  in 
the  hands  of  others  than  the  holders  of  the 
bonds  from  which  they  were  detached, 
should  be  paid  before  such  bonds.  Stevens 
v.  New  York  &*  O.  M.  K.  Co.,  13  Blatchf. 
(i/.  .9.)  412.— Reviewing  Dunham  v,  Cin- 
cinnati, P.  &  C.  R.  Co.,  I  Wall.  (U.  S.) 
254. 


273.  nioiiey  loaned  to  pay  interest 
on  coupon  bonds.— For  money  borrowed 
by  the  company  to  pay  interest  on  coupon 
bonds  the  lender  is  not  entitled  to  be  paid 
out  of  funds  in  the  hands  of  the  receiver 
appointed  at  the  instance  of  the  mort- 
gagees. As  the  lender  is  not  entitled  to 
be  treated  as  an  assignee  of  the  interest 
coupons  taken  up  with  the  money  loaned 
by  him,  he  is  not  entitled  to  be  subrogated 
to  the  rights  of  the  holder  of  such  coupons. 
Newport  &^  C.  Bridge  Co.  v.  Douglass,  12 
Bush  {A>.)  673,  18  Am.  Ry.  Rep.  221. 

274.  Secured  and  unsecured 
debts. — The  rule  charging  operating  ex- 
penses of  a  railroad,  debts  due  fronj  it  to 
connecting  lines  growing  out  of  an  inter- 
change of  business,  debts  due  for  the  occu- 
pation of  leased  lines,  and,  generally,  debts 
created  under  special  circumstances  whicV 
make  an  equity  in  favor  of  the  unsecured 
debtor  upon  the  gross  income  of  the  road 
before  a  fund  arises  for  the  payment  of  mort- 
gage interest,  is  not  applicable  to  a  fund  real- 
ized from  a  sale  of  the  road  under  foreclosure 
of  a  mortgage ;  and,  as  a  general  rule,  unse- 
cured debts  of  the  company  cannot,  in  such 
case,  take  precedence  over  debts  secured  In 
prior  and  express  liens  in  the  distribution 
of  the  proceeds  of  the  sale  of  the  mort- 
gaged property.  St.  Louis,  A.  <S-  T.  H.  R. 
Co.  V.  Ch"veland,  C,  C.  &*  I.  R.  Co.,  33  Am. 
&•  Eng.  R.  Cas.  16,  125  £/.  5.  658,  8  Sup.  Ct. 
Rep.  loi  I. —Distinguished  in  Toledo,  D. 
&  B.  R.  Co.  V.  Hamilton,  43  Am.  &  Eng.  U. 
Cas.  476,  134  U.  S.  296. 

275.  Jjlens  surrendered  under 
a{;reenient  to  pay  tlieni.— A  railroad 
receiver  agreed  to  pay  a  claim  that  was  a 
lien  on  part  of  the  road  out  of  the  proceeds 
of  a  foreclosure  sale  of  that  part  of  the 
road,  and  thereupon  the  lienor  surrendered 
his  lien.  On  a  sale  the  receiver  bid  in  the 
property  as  an  entirety.  Held,  that  it  was 
proper  to  pay  the  claim  out  of  the  proceeds 
of  the  sale  as  an  entirety.  Farmers'  L.  &* 
T.  Co.  V.  Newman,  \  27  U.  S.  649,  8  Sup.  Ct. 
Rep.  1364. 

In  such  case  a  provision  in  the  decree 
that  the  mortgage  bondholders  might  pay 
in  bonds,  instead  of  cash,  would  not  defeat 
the  right  of  the  lienor  to  payment  in  cash  ; 
and  if  payment  was  not  made  in  a  reason- 
able time,  he  could  move  to  sell  the  entire 
road  again.  Farmers'  L.  &»  T.  Co.  v.  New- 
man, 127  U.  S.  649,  8  Sup.  Ct.  Rep. 
1364. 


.  I  n,   I  [m 


MORTGAGES,  276-280. 


511 


270.  Hol(ler.s  of  preferred  stock. 

— VVliere  one  company  buys  the  road  of  an- 
other, paying  therefor  in  preferred  siocit, 
the  holders  thereof,  who  have  acquiesced  in 
tlie  sale  for  years,  and  have  received  inter- 
est on  the  stock,  are  not  entitled  to  be  paid 
first  out  of  the  proceeds  of  the  whole  road 
when  sold  to  pay  mortgages.  Branch  v. 
Atlantic  &•  G.  A'.  Co.,  3  M'ooUs  (U.  S.)  481. 

277.  Jiidgineiit  creditors  gener- 
ally.— An  insolvent  railroad  made  an  ar- 
rangement by  which  it  foreclosed  a  mort- 
gage on  rhe  road  and  sold  so  as  to  pay  the 
mortgage  debts  and  leave  sixteen  per  cent, 
to  be  paid  the  stockholders.  Held,  that  a 
judgment  creditor  of  the  company  whose 
claim  was  not  secured  had  a  right  in  equity 
to  subject  said  sixteen  per  cent,  to  payment 
of  his  judgment  whether  it  had  been  paid 
to  the  stockholders  or  not.  Chicago,  R.  I. 
&•  P.  R.  Co.  V.  Howard,  7  M\ill.  {U.S.) 
3()2.— Applied  in  Farmers'  L.  &  T.  Co.  v. 
Missouri.  I.  &  N.  R.  Co.,  17  Am.  &  Eng.  R. 
Cas.  314,  21  Fed.  Rep.  264.  Distingui.shed 
IN-  Hancock  v.  Toledo,  P.  &  W.  R.  Co.,  11 
Miss.  ( U.  S.)  148  ;  Vose  v.  Cowdrey,  49  N.  Y. 
3;,6;  People  v.  Erie  R.  Co.,  56  How.  Pr.  (N. 
Y.»  122;  Stewart's  Appeal,  72  Pa.  St.  291. 

278.  Jiidffiiieiits  for  daiiia{;cs  to 
pro|)**rty. — A  judgment  by  default  against 
a  railroad  company  for  damage  to  private 
property  adjacent  to  its  road  is  not  bind- 
ing, as  to  the  amount  of  damages,  upon  the 
mortgagees  of  the  company  and  its  bond- 
holders secured  thereby.  And  on  a  con- 
test between  the  holders  of  such  bonds  and 
the  owners  of  property  damaged  by  the 
construction  of  the  road  as  to  priority  of 
payment  out  of  the  proceeds  of  a  sale  of  the 
road  on  foreclosure,  it  is  not  error  for  the 
court  to  open  such  judgment, and  to  require 
a  reassessment  of  damages  by  the  jury. 
Penn  Mut.  L.  Ins.  Co.  v.  Heiss,  141  ///.  35. 
31  N.E.Rep.  138. 

A  railway  compt.r.y  having  but  a  part  of 
its  road  completed  gave  its  mortgage  upon 
its  entire  line,  part  of  which  was  only  pro- 
jected, to  secure  its  bonds.  The  mortgage 
recited  ti.at  the  bonds  were  to  be  issued  at 
the  rate  of  $10,000  a  mile  as  the  projected 
road  should  be  completed.  At  the  terminus 
of  the  road  the  tracks  were  laid  in  a  public 
street,  under  leave  of  the  city  authorities, 
without  the  payment  of  any  damages  to  the 
owners  of  the  lots  abutting  upon  the  street. 
Afterward  such  owners  brought  suits  against 
the  company  alone   for  damages  to  their 


lots,  in  which  they  recovered  judgments, 
the  mortgagee  and  bondholders  not  being 
made  parties.  On  bill  filed  by  the  judg- 
ment creditors  to  enforce  payment  of  the 
judgment,  the  mortgagee  and  bondholders 
filed  a  cross-bill  to  foreclose  the  mortgage, 
claiming  a  prior  lien  under  the  mortgage, 
which  had  been  recorded  long  before  the 
recovery  of  the  judgments.  The  court 
opened  the  judgment,  and  allowed  a  defense 
to  be  niade  to  the  suits  at  law.  After  trial 
and  judgment  the  court,  by  its  decree  fore- 
closing the  mortgage,  gave  the  judgment 
creditors  the  priority  in  payment.  Held, 
that  the  court  did  not  err  in  decreeing  that 
the  damages  to  the  abutting  lot  owners,  the 
plaintiffs  in  the  judgments,  should  have 
priority  of  payment  out  of  the  proceeds  of 
the  sale  of  the  road  under  the  decree  of 
foreclosure.  Penn  Mut.  L.  Ins.  Co.  v.  Heiss, 
141  ///.  35,  31  N.  E.  Rep.  138. 

A  valid  claim  for  damages  against  a  re- 
ceiver is  entitled  to  satisfaction  out  of  the 
current  receipts  applied  to  satisfy  mortgage 
creditors,  or  to  the  improvement  of  the  rail- 
way property  ;  and  the  court  appointing  the 
receiver  has  authority  to  apply  such  por- 
tion of  the  proceeds  of  the  mortgage  sale  as 
would  equal  such  applied  current  receipts, 
or  the  value  of  such  improvements,  to  sat- 
isfy such  claim  for  damages.  Ryan  v.  Hays, 
23  Am.  6-  Eng.  R.  Cas.  501,  62  Tex.  42. 

270.  Advances  to  save  property 
tVoni  sale  for  taxes. — Where  a  decree  for 
foreclosure  and  sale  provides  that  the  pro- 
ceeds shall  be  brought  into  court  to  await 
the  further  order  of  the  court  as  to  its  dis- 
tribution, saving  the  rights  of  all  persons  in 
the  fund  for  future  determination,  a  party 
may,  on  petition,  after  such  sale  and  before 
a  distribution  is  made,  have  an  order  to  pay 
him  out  of  the  fund  any  moneys  which  he 
may  have  advanced  to  save  the  mortgaged 
property  from  sale  for  taxes  due  thereon, 
which  were  a  prior  lien,  before  payment  to 
the  other  creditors.  Humphreys  v.  Allen, 
100  ///.  511. 

280.  Money  furnished  to  build  ex- 
tension of  road.  — The  receiver  was  au- 
thorized by  a  consent  order,  without  a  ref- 
erence, to  construct  an  extension  of  the 
railroad  at  a  cost  not  to  e.xceed  an  amount 
stated,  to  be  paid  for  out  of  surplus  income, 
and  the  extension  to  stand  pledged  for  such 
payment.  The  extension  was  built  at  a 
greater  cost,  and  then  sold  as  a  part  of  the 
entire  road.    Held,  that  the  receiver  acted 


I 


'•h 


m 
W 


*^l 


512 


MORTGAGES,  281-284. 


w. 


.'  { 


iS- 


only  as  agent  of  tbe  consenting  bondhold- 
ers, l)ut  that  the  extension  was  covered  by 
a  lien,  superior  to  existing  liens,  in  favor  of 
those  who  furnished  the  money  to  build  it, 
and  that  they  were  entitled  to  such  ratable 
proportion  of  the  proceeds  of  sale  as  the 
value  of  the  extension  bore  to  the  value  of 
the  (Mitire  roati,  considered  only  in  reference 
to  the  purchase  money  of  th»>  iv'M>le.  Hand 
V.  Savanna/i  &^  C.  li.  >'•».,  i;  .    .  J19. 

But  a  bondholder  refusi'  ..n       nt  to 

the  extension,  and   whose  .■a^iosL   kvas  ex- 
pressly excepted   in   the    consent  order,   is 
entitled  to   his  full  share    >'  t'  e  whole  pro- 
ceeds of  sale.     Hand  v.  Savaniti.  '  3r*  C 
C(>.,  17  So.  Car.  219. 

281.  Cliiiiiinuts  for  materials  and 
Hiipplics  fiiriiislied.— Necessary  supplies 
purchased  on  credit  by  the  receiver  of  a 
railroad,  appointed  in  foreclosure  proceed- 
ings, may  be  ordered  to  be  paid  out  of  the 
funds  arising  from  the  sale  of  the  road  in 
preference  to  the  mortgage  bondholders. 
Kneelaitd  v.  Bass  F.  &*  M.  Works,  48  Am. 
&•  Eng.  R.  Cas.  675,  140  (/.  S.  592,  11  Sup. 
Ct.  Rep.  857.— Distinguishing  Kneeland 
V.  .American  L.  &  T.  Co.,  136  U.  S.  89,  138 
U.  S.  509. 

Persons  who  furnish  materials  to  an  in- 
solvent road  have  no  specific  lien  on  the 
property,  and  are  not  entitled  to  payment 
in  preference  to  mortgage  bondholders; 
and  a  promise  of  payment  by  a  receiver 
cannot  give  a  prior  lien.  Denniston  v.  Chi- 
cago. A.  &*  St.  L.  R.  Co.,  4  Biss.(U.  5.)  414. 

282.  Costs  and  fees,  (generally.— 
Counsel  fees  and  costs  should  be  adjusted 
on  circuit.  The  costs  and  fees  of  all  the  at- 
torneys, properly  chargeable  for  successful 
services,  should  be  paid  out  of  the  common 
fund.  Hand  v.  Savannah  &^  C.  R.  Co.,  17 
So.  Car.  219. 

Where  a  decree  of  foreclosure  had  been 
obtained  by  the  bondholders,  and  a  sale  of 
the  road  had  taken  place  thereunder,  at 
wliich  a  certain  corporation  not  a  party  to 
the  foreclosure  was  the  bidder,  and  the 
transfer  of  its  bid  to  the  trustees  of  the 
bondholders  was  subsequently  approved  by 
the  court  rendering  the  decree — held,  that 
the  officer's  fees  for  the  sale  should  be  the 
same  as  if  the  execution  plaintiffs  had  been 
the  immediate  purchasers.  Gilman  v.  Des 
Moines  Valley  R.  Co.,  42  Iffwa  495. 

283.  Attorneys*  fees.  —  A  court  may 
decree  payment  of  an  attorney's  fee,  for  ser- 
vices in  protecting  the  property  and  col- 


lecting claims,  out  of  a  fund  arising  from 
the  sale  of  a  railroad,  in  preference  to  the 
debts  secured  by  mortgage  ;  but  a  claim  for 
services  for  counsel  to  officers  and  stock- 
holders not  resulting  in  benefit  to  the  mort- 
gage creditors  is  not  entitled  to  preference. 
Louisville,  E.  &»  St.  L.  R.  Co.  v.  Wilson,  138 
U.  S.  501,  II  Sup,  Ct.  Rep.  405. 

A  lawyer  who  is  retained  as  counsel  for  a 
railroad  company  at  a  fixed  salary  is  not 
entitled  to  payment  in  preference  to  the 
mortgage  bondliolders;  but  where  the  or- 
der appointing  a  receiver  directs  him  to  pay 
all  wages  due  to  employes  for  labor  and 
services  performed  within  ninety  days  of  the 
•,ip -ointment  of  the  receiver,  such  attorney 
is  an  "employe"  within  the  meaning  of 
the  order,  and  is  entitled  to  compensation 
earned  within  the  ninety  days.  Finance  Co. 
V.  Charleston,  C.  &*  C.  R.  Co.,  52  Fed.  Rep. 
526. 

The  rule  which  allows  counsel  fees  to  a 
trustee  who  sues  for  the  benefit  of  those 
whom  he  represents,  or  where  one  sues  for 
the  joint  benefit  of  himself  and  others,  does 
not  extend  to  counsel  who  represent  a  mere 
pledgee  of  bonds.  Morton  v.  New  Orleans 
&>  S.  R.  Co.,  79  Ala.  590. 

The  mortgagees  of  a  raihoad,  with  power 
to  sell,  must  be  regarded  in  nreclosure  pro- 
ceedings as  proceeding  on  that  part  of  the 
instrument  which  operates  as  a  mortgage, 
and  not  under  the  power  to  sell,  and  there- 
fore the  court  would  not  be  authorized  in 
such  action  to  charge  upon  the  proceeds 
realized  by  a  sale  an  allowance  for  the 
trouble  of  such  mortgagees,  who  acted  as 
trustees,  or  the  fees  of  their  counsel.  Coe  v. 
Columbus,  P.  6-  /.  R.  Co.,  10  Ohio  St.  372. 

d.  Proceedings  to  Restrain  or  Vacate. 

284.  Gronnds  for  settinir  aside, 
generally.— The  fact  that  a  railroad  re- 
ceiver has  filed  a  bill  against  third  parties 
to  set  aside  certain  deeds  of  lands  which 
he  claims  belong  to  the  company,  but  which 
such  third  parties  claim  as  their  own,  un- 
der a  title  adverse  to  the  company,  is  no 
ground  for  allowing  a  bondholder  to  file  a 
bill  of  review  to  set  aside  a  sale  of  the  road. 
The  title  to  the  lands  cannot  be  determined 
in  the  foreclosure  proceeding.  Farmers'  L. 
<S-  T.  Co.  v.  Green  Bay  <&-  M.  R.  Co.,  10  Biss. 
({/.S.)  203,  6  Fed.  Rep.  100. 

In  a  suit  to  foreclose  a  mortgage  upon 
railroad  property,  the  answer  set  out  the 
substance  of  an  alleged  fraudulent  contract 


MORTGAGES,  285,  286. 


513 


which  would  make  the  foreclosure  proceed- 
ings invalid,  and  this  answer  was  witlidrawn. 
A  stockholder  of  the  company,  without 
whose  knowledge  the  foreclosure  of  the 
mortgage  could  not  have  taken  place,  and 
who  by  the  exercise  of  ordinary  diligence 
would  have  discovered  the  allegations  made 
in  the  answer  thus  withdrawn,  failed  for  ten 
years  after  the  foreclosure  to  object  to  the 
operation  of  the  road  by  the  purchasers  at 
such  foreclosure  sale,  the  parties  to  the  al- 
leged fraudulent  contract  having  died  in  the 
meantime.  He  then  brought  suit  to  annul 
the  foreclosure  decree,  and  alleged  that  he 
was  ignorant  of  the  fraudulent  transactions 
until  within  a  short  time  of  bringing  his  suit. 
Held,  that  such  stockholder  was  guilty  of 
laches,  which  would  prevent  him  from  main- 
taining his  bill.  Foster  v.  Mansfield,  C.  &* 
L.  M.  K.  Co.,  57  Am.  &*  Eng.  R.  Cas.  245, 
146  U.  S.  88,  13  Sup.  a.  Rep.  28. 

In  a  case  of  this  kind,  where  the  plaintiff 
seeks  to  annul  a  long-standing  decree,  it  is 
a  circumstance  against  him  that  he  does 
not  show  a  probability  of  advantage  to  him- 
self by  the  success  of  his  suit,  as  a  court  of 
equity  is  not  called  upon  to  do  a  vain  thing, 
and  will  not  entertain  a  bill  simply  to  vin- 
dicate an  abstract  principle  of  justice,  or 
compel  the  defendants  to  buy  their  peace, 
and  the  decree  will  stand  if  it  appears  that 
the  parties  really  in  interest  wish  it  to  stand. 
Foster  v.  Mansfield,  C.  &*  L.  M.  R.  Co.,  57 
Am.  &»  Etig.  R.  Cas.  245,  146  U,  S.  88,  13 
Sup.  Ct.  Rep.  28. 

Defendant  company  leased  a  road  and 
agreed  to  pay  a  certain  lien  thereon.  Subse- 
quently the  company  acquired  the  road  as 
a  part  of  its  own  line  and  mortgaged  the 
whole  line.  Afterwards  the  road  was  placed 
in  the  hands  of  a  receiver,  who,  under 
orders  of  the  court,  contracted  to  purchase 
the  lien  on  the  leased  road,  and  to  pay 
therefor  from  the  proceeds  of  a  sale  of  the 
road.  The  claim  not  being  paid,  the  holder 
of  the  lien  applied  to  the  court  for  an  order 
to  set  aside  the  sale.  Held,  that  the  court 
was  bound  to  enforce  a  contract  made  by 
its  orders,  and  therefore  would  order  the 
sale  set  aside,  and  again  place  the  receiver 
in  possession.  Farmers'  L.  &*  T.  Co.  v. 
Burlington  &•  S.  W.  R.  Co.,  32  Fed.  Rep. 
805. 

285.  Conibiiintioiis  among  bid- 
ders.— The  creditors  of  a  mortgaged  rail- 
road may  fairly  combine  to  purchase  the 
property,  where  other  bondholders  and 
6D.  R.  D-3T 


creditors  ate  not  thereby  deprived  of  »he 
right  to  bid,  at  a  foreclosure  sale;  and  the 
fact  of  such  combination  affords  no  ground 
for  setting  aside  the  sale.  Kropholler  v.  St. 
Paul' M.  &>  M.  R.  Co.,  i  McCrary  {U.  S.) 
299,  2  Fed.  Rep.  302. 

One  of  a  number  of  bondholders  who  had 
entered  into  an  agreement  for  the  purchase 
of  the  mortgaged  premises  at  the  foreclo- 
sure sale  applied  for  an  order  setting  aside 
the  sale  (the  property  had  been  bougiii  by 
the  combination  at  the  sale)  on  the  ground 
that  the  purchasing  committee  had,  con- 
trary to  the  agreement  under  which  the 
combination  was  formed  (that  is,  after  the 
lime  limited  in  the  agreement  for  coming 
in),  let  in  other  bondholders ;  also,  that  they 
had  stifled  competition  at  the  sale  by  pur- 
chasing,' after  an  adjournment  of  the  sale 
and  before  the  sale  took  place,  for  the  ac- 
count of  a  railroad  company  which  came  in 
subsequently  and  after  the  limited  time,  the 
bonds  of  a  person  who  was  a  determined 
bidder  when  the  property  was  first  put  up 
for  sale.  Held,  that  the  objection  that  other 
bondholders  were  let  into  participation  in 
the  benefits  of  the  combination  agreement 
after  the  time  limited  therein  could  not, 
under  the  circumstances,  find  favor  in 
equity,  and  that  the  alleged  stifling  of  com- 
petition was  the  act  of  the  agents  of  the 
petitioner,  and  it  did  not  appear  that  it  had 
affected  his  interest  injuriously  in  any  way. 
Walker  v.  Montclair  &*  G.  L.  R,  Co. ,  30  A'. 
/•  Eq.  525. 

286.  Fraud  or  collusion.— Where  a 
railroad  corporation  suffers  default  in  the 
payment  of  its  bonds  secured  by  mortgage 
on  its  road  and  franchises,  and  in  conse- 
quence the  mortgage  is  foreclosed,  and 
property  sold,  the  sale  cannot  be  attacked  on 
the  ground  that  the  directors  of  the  corpora- 
tion were  actuated  by  corrupt  motives  iit 
suffering  the  default,  and  that  tjiis  was 
known  to  the  trustee,  in  the  absence  of  any 
claim  of  collusion  between  him  and  the  di- 
rectors. Harpendiitg  v.  Munson,  1 2  Am.  &* 
Eiig.  R.  Cas.  408, 91  iV.  K  650,  mem. 

The  principle  that  a  court  of  equity  will 
not  aid  parties  in  the  perpetration  or  con- 
summation of  a  fraud,  nor  give  assistance 
whereby  either  of  the  parties  connected 
with  a  betrayal  of  a  trust  can  derive  any 
advantage  therefrom,  applied  in  a  case  where 
the  receiver  of  a  road  entered  into  a  com- 
bination with  other  parties,  the  receiver  to 
furnish  information, and  the  other  parties  to 


HM 


MORTGAGES,  287-200. 


II    -P! 


l>   '(i 


buy  the  bonds  of  the  milroad  to  be  used  in 
purcliasing  tlie  road  at  a  coining  foreclosure 
sale  for  all  thus  combining,  but  which  agree- 
ment such  parties  refused  to  carry  out,  and 
the  receiver  filed  a  bill  to  compel  them  to 
allow  him  to  share  in  the  benelUs  of  the 
s:ile.  F.ir/rj'  v.  S/.  Pmil,  M.  &-  M.  R.  Co.,\ 
.)/cCr.<ry  (  U.  S.)  138,  14  I-\-ii.  Kcp.  1 14. 

A  r.iilrt)ad  company  executed  a  mortgage 
to  secure  §2.000,000  of  its  bonds,  but  less 
than  §200,000  tiiereof  was  held  by  bona 
fide  purchasers,  the  remainder  having  been 
bought  at  nominal  prices,  and  being  held 
or  controlled  by  a  new  company,  which 
had  foreclosed  for  the  non-payment  of  six 
months'  interest.  Held,  that  the  transaction 
would  be  treated  as  a  fraud  on  the  mort- 
gagor and  its  other  creditors,  and  the  sale 
would  be  set  aside,  and  the  mortgage  di- 
rected to  stand  as  security  for  the  bona  fide 
holders  of  mortgjige  bonds.  James  v.  Mil- 
waukee (S-  M.  R.  Co.,  6  JVall.  (I/.  S.)  752. 

287.  Inadequacy  «>f  price.— A  court 
will  not  reopen  a  foreclosure  sale  in  the  ;ib- 
sence  of  clear  proof  of  fraud  or  unfairness; 
and  the  fact  that  the  road  in  the  hands  of 
the  purchasers  has  become  successful  and 
profitable,  and  therefore  has  arisen  in  value, 
is  no  ground  for  setting  aside  a  sale.  Leav- 
emoorth  County  v.  Chicago,  R.  I.  &■*  P.  R. 
Co.,  22  Am.  Qr'Eng.  R.  Cas.  61,  25  Fed.  Rep. 
219. 

Mere  inadequacy  of  price  is  not  alone 
sufficient  »o  set  aside  a  sale,  and  the  expres- 
sion of  opinion,  though  well  founded,  that 
the  property  on  a  resale  would  bring  a 
much  higher  price,  is  not  sufficient.  The 
fact  that  bondholders  of  a  railway  were 
known  to  have  authorized  bids  up  to  S400,- 
000,  which  deterred  others  from  bidding,  is 
not  ground  for  setting  aside  the  sale,  though 
it  was  made  for  S-25,000  to  such  bondhold- 
ers. Fidelity  T.  &^  S.  V.  Co.  v.  Mobile  St. 
R.  Co.,  54  Fed.  Rep.  26. 

If  property  sells  at  an  inadequate  price, 
the  inadequacy  must  be  so  great  as  to  shock 
the  conscience  and  excite  the  suspicion  of 
the  court,  or  there  must  be  an  inadequacy 
of  price,  with  additional  circumstances 
against  the  unfairness  of  the  sale,  growing 
out  of  fraud,  accident,  or  some  trust  relation 
of  the  parties,  to  justify  the  court  in  inter- 
fering. Fidelity  T.  &^  S.  V.  Co.  v.  Mobile 
St.  R.  Co.,  54  Fed.  Rep.  26.  Turner  v.  In- 
dianapolis, B.  &•  IV.  R.  Co.,  8  Biss.  {If.  S.) 
380. 

And  a  sale  will  not  be  set  aside  for  inade- 


quacy of  price  unless  it  appears  that  some 
responsible  person  will  make  an.  advance 
bid  if  a  resale  is  granted.  Turner  v.  In- 
dianapolis, B.  (S-  If.  R.  Co.,  8  Biss.  {U.  S.) 
380. 

288.  Parties  to  bill  to  set  aside.— 
It  is  a  rule  in  equity  that  all  persons  who 
would  be  affected  by  a  decree  should  be 
made  parties.  So  where  certain  dissatisfied 
stockholders  and  bondholders  file  a  bill  to 
set  aside  a  foreclosure  sale  of  a  railroad, 
which  has  been  made  under  an  agreement 
between  a  majority  of  the  stockholders  and 
creditors,  the  trustees  in  the  mortgages 
should  be  made  parties ;  otherwise  the  bill 
will  be  fatally  defective.  Ribon  v.  Chicago, 
R.  I.  e^  P.  R.  Co.  16  Wall.  (U.  S.)  446,  4 
Am.  Ry.  Rep.  285.  Harwood  v.  Cincinnati 
<5-  C.  A.  L.  R.  Co.,  17  Wall.  {U.  S.)  78. 

Holders  of  second  mortgage  bonds  of  a 
railroad  cannot  maintain  a  bill  to  rescind  a 
foreclosure  sale  by  the  first  mortgage  bond- 
holders, or  have  it  declared  in  trust  for  both 
classes,  where  there  is  no  charge  of  collusion 
or  inadequacy  of  price,  and  where  it  appears 
that  complainants  might  have  intervened  in 
the  first  suit,  but  could  not  have  prevented 
the  sale.  Robinson  v.  Iron  R.  Co.,  46  Am. 
<S^  Eng.  R.  Cas.  3S3,  135  U.  S.  522,  10  Sup. 
Ct.  Rep.  907. 

280.  Sufflcieiicy  of  the  bill.— Where 
a  suit  is  brought  to  set  aside  a  decree  in  a 
former  suit  foreclosing  a  railroad  mortgage 
on  account  of  fraud,  and  the  bill  is  heard  on 
demurrer,  the  record  in  the  former  suit  can- 
not be  referred  to  where  it  is  not  made  part 
of  the  bill  ;  but  the  relief  will  be  granted  if 
the  charges  in  the  bill  are  sufficient  to  war- 
rant it.  Pacific  R.  Co.  v.  Missouri  Pac.  R. 
Co.,  Ill  U.  S.  505,  4  Sup.  Ct.  Rep.  583  ;  re- 
versing 3  Fed.  Rep.  772,  i  McCrary  (U.  S.) 
647. 

Charges  in  a  bill  by  a  corporation  to  set 
aside  a  decree  in  a  former  suit  foreclosing  a 
railroad  mortgage,  that  no  real  defense  was 
made  in  that  suit  by  reason  of  the  fraud 
and  unfaithfulness  of  the  solicitor  and  di- 
rectors, are  sufficient  to  give  a  court  of 
equity  cognizance.  Pacific  R.  Co.  v.  Mis- 
souri Pac.  R.  Co.,  Ill  U.  S.  505,  4  Sup.  Ct. 
Rep.  583. 

200.  Wlieii  tlie  remedy  is  by  mo- 
tion, not  by  bill.— Pending  the  '.  reclo- 
sure  of  a  mortgage  given  by  a  corporation 
to  secure  its  bonds,  a  receiver  was  appointed, 
and  after  due  notice  he  was  directed  to 
issue  receivers'  certificates  for  the   benefit 


'  ■  >>.m 


MORTGAGES,  201-204. 


615 


of  the  property.  At  the  foreclosure  sale 
thepioperty  sold  for  less  than  the  amount 
of  the  receivers'  certificates.  Afterwards  a 
bondholder  filed  a  bill  for  relief  against  the 
sale.  Nc/t/,  that,  if  he  had  any  remedy,  it 
was  by  application  to  the  court  rendering 
the  decree,  and  not  by  an  independent  bill.' 
AV///  V,  Lair  Superior  Ship  C.  A'.  tS-  /.  Co., 
144  U.  S.  75,  12  Sup.  a.  Rep.  650.— Fol- 
low Ki)  l.\  Farmers'  L.  &  T.  Co.  v.  Kansas 
Ciiy,  \V.  &  N.  VV.  R.  Co.,  53  Fed.  Rep.  182. 

201.  Who  may  move  to  vacate.— 
One  who  obtains  an  equitable  interest  in 
railroad  bonds  after  a  foreclosure  of  the 
mortgage  given  to  secure  them  has  not 
such  interest  as  will  allow  him  to  appear 
and  seek  to  set  aside  the  sale.  Ex  parte 
Fleming,  2  Wall.  {[/.  S.)  759. 

If  mortgage  trustees  combine  with  others 
to  defraud  the  bondholders,  or  any  of  them, 
or  if  they  do  not  act  in  good  faith,  a  bond- 
holder may,  by  a  suit  properly  broug!  t,  in 
which  the  necessary  persons  are  made  par- 
ties, correct  the  matter;  but,  as  bondhold- 
ers are  usually  represented  by  their  trus- 
tees, a  bondholder  cannot  interpose  by  a 
mere  motion  tc  set  aside  a  sale  for  the 
above  reasons.  Meyer  v.  Utah  &^  P.  V.  A*. 
Co..  3  Utah  280,  3  Pac.  Rep.  393.— Quoting 
Shaw  V.  Little  Rock  &  Ft.  S.  R.  Co.,  100 
U.  S.  605. 

202.  Waiver  of  right  to  move  to 
vacate. — Where  an  appeal  has  been  taken 
from  a  decree  foreclosing  a  railroad  mort- 
gage, and  a  motion  to  dismiss  the  appeal 
has  been  made  and  overruled,  a  motion  for 
a  mandamus  to  vacate  the  foreclosure  de- 
cree will  be  overruled  also.  Milwaukee  &■* 
Af.  R.  Co.  V.  Soutter,  2  Wall.  {U.  S.)  443,  n. 

The  supreme  court  modified  a  decree  of 
foreclosure  of  railroad  property,  giving  the 
mortgagor  the  right  to  have  an  account 
taken  against  the  party  in  possession  of  the 
road  up  to  the  date  of  the  master's  deed,  or 
up  to  the  time  of  the  rendition  of  a  new 
decree  in  case  the  sale  was  set  aside,  and 
"giving  the  mortgagor  leave  to  move  the 
court  below  to  vacate  the  sale,  and  the 
mortgagor  came  into  court  and  requested 
it  not  to  set  aside  the  sale,  but  to  have  an 
account  stated  up  to  the  time  the  master 
made  the  deed.  Held,  that  this  was  a 
waiver  of  the  right  afterwards  to  insist 
upon  a  motion  to  vacate  the  sale.  Racine 
&>  M.  R.  Co.  V.  Farmers'  L.  &>  T.  Co.,  86 
///.  187.— Quoting  Fergus  v,  Woodworth, 
44  111-  374- 


20.1.  AVIicii  JiKlKmeiit  Hhould  ho 
vacated  hefore  setting;  aside  sale.— 

A  railroad  company  took  a  mortgage  on 
certain  lands,  which  it  assigned,  and  then 
acquired  a  certain  portion  of  the  land  for  a 
right  of  way,  etc.,  which  by  a  sale  passed  to 
defendant  company.  Defendant  answered 
a  foreclosure  bill,  and  set  up  such  facts  as 
to  entitle  it  to  relief,  but  failed  to  appear 
and  prove  tiie  allegations,  and  a  decree  was 
taken  for  the  sale  of  the  whole  of  the 
premises,  and  at  a  subsequent  term  the 
company  appeared  and  moved  to  set  aside 
the  sale  as  to  its  roadbed  and  right  of  way. 
Nelii,  that  it  was  error  to  grant  the  motion 
so  long  as  the  judgment  was  not  vacated. 
Hartshorn  v.  Milwaukee  <&*  St.  P.  R.  Co., 
23  Wis.  692. 

It  was  likewise  error  to  refer  the  case  to 
a  commissioner  to  ascertain  the  value  of 
the  company's  interest  in  the  land,  exclu- 
sive of  improvement;^  put  on  it,  and  to  di- 
rect its  property  discharged  from  the  Hen 
of  the  mortgage  upon  paying  such  value. 
Hartshorn  v.  Milwaukee  dr*  St.  P.  R.  Co.,  23 
Wis.  692. 

204.  Effect  of  ladies  of  party  ag- 
grieved.*—A  bill  to  set  aside  a  foreclo- 
sure sale  of  a  railroad,  by  interested  par- 
ties, on  account  of  fraud  and  collusion  be- 
tween the  mortgage  trustee  and  others  who 
procured  the  sale,  filed  five  years  after  the 
sale,  will  not  be  entertained  where  it  ap- 
pears that  plaintiffs  had  knowledge  of 
the  facts  attending  the  sale,  and  no  excuse 
is  offered  for  the  delay,  and  where  new 
rights  and  interests  have  been  acquired 
under  the  sale.  Harwood  v.  Cincinnati  6i» 
C.  A.  L.  R.  Co.,  17  Wall.  (U.  S.)  78. 

Where  a  bill  to  set  aside  a  foreclosure 
sale  of  a  railroad,  for  fraud  and  collusion,  is 
not  filed  for  ten  years  after  the  sale,  the  de- 
lay raises  a  presumption  of  laches,  which 
plaintiff  must  rebut.  He  must  show  that 
he  was  ignorant  of  the  fraud,  and  used  rea- 
sonable diligence  to  inform  himself;  and 
especially  is  this  so  where  plaintiff  is  a 
stockholder  of  the  railroad,  and  lived  m 
the  neighborhood  of  the  alleged  fraud. 
Foster  v.  Mansfield,  C.  &•  L.  M.  R.  Co.,  57 
Am.  &•  Eng.  R.  Cas.  245,  146  U.  S.  88,  13 
Sup.  Ct.  Rep.  28. 

A  bill  by  a  stockholder  to  set  aside  a 
railroad     mortgage    and     foreclosure    was 


*  Setting  aside  sale.     Laches,    see    note,   36 
Am.  &  Eng.  R.  Cas.  297. 


§ 


516 


MORTGAGES,  205-207. 


f'.  'J 


properly  dismissed  on  demurrer  on  liie 
ground  of  laches  where  it  was  filed  four- 
teen years  after  the  making  of  the  mort- 
f;ajj;e,  ten  years  after  the  commencement  of 
the  bankruptcy  proceedings,  nine  years 
after  the  entry  of  the  decree  of  foreclosure, 
and  seven  years  after  the  foreclosure  be- 
came absolute  and  the  road  was  conveyed 
to  the  new  corporation.  Graluvn  v.  lioston, 
II.  (S-  E.  R.  Co.,  25  Aw.  &^  Eng.  A'.  C\t.t.  53, 
118  U.  S.  161,  6  Sup.  C(.  Kep.  1009;  affirm- 
ing 14  Fed.  Hep.  753,— yu(rrKD  in  St.  Paul, 
S.  &  T.  F.  R.  Co.  V.  Sage,  49  Fed.  Rep.  315, 
4  U.  S.  App.  160,  I  C.  C.  A.  256. 

After  a  railroad  mortgage  has  been  fore- 
closed and  the  sale  confirmed  bondholders 
will  not  be  allowed  to  be  made  parties  at  a 
subsequent  term  for  impeaching  the  sale  as 
fraudulent,  although  the  court  in  confirm- 
ing the  sale  expressly  reserved  the  power  to 
make  further  orders.  IVetmore  v.  St.  Paul 
6-  P.  R.  Co.,  I  McCrary  ( U.  S.)  466.  3  Fed. 
^^P-  «77.  5  Oill.  531. 

Where  all  persons  are  authorized  to  bid 
at  a  foreclosure  sale,  the  fact  that  the  prop- 
erty is  bought  by  the  president  of  the  com- 
pany in  his  individual  right  will  not  in 
itself  raise  a  trust  relation  so  as  to  make 
the  president  a  trustee  for  bondholders, 
especially  if  they  were  in  possession  of 
all  the  facts  at  the  time  of  the  sale,  and 
had  opportunity  afterwards  to  take  the 
property,  but  stood  by  until  the  purciiaser 
had  expended  money  of  his  own,  and  the 
establishment  of  certain  railroad  connec- 
tions, and  other  things,  had  made  the 
property  much  more  valuable.  Credit  Co. 
V.  Arkansas  C.  R.  Co.,  5  McCrary  ( U.  S.)  23, 
1 5  Fed.  Rep.  46. 

205.  ICestrainiiig  the  sale.— A  sec- 
ond mortgagee,  who  is  not  a  party  to  a  fore- 
closure of  a  first  mortgage  on  a  railroad, 
cannot  be  affected  by  a  sale,  and  therefore 
is  not  entitled  to  an  injunction  to  restrain  a 
sale.  Searles  v.  Jacksonville,  P.  &•  M,  R. 
Co.,  2  Woods  {U.  5.)  621. 

e.  Matters  of  Review. 

200.  Jiiri8(lictioii  on  appeal  or 
error— Amount.  —  Where  several  plain- 
tiffs claim  under  the  same  title,  and  the 
determination  of  the  cause  necessarily  in- 
volves the  validity  of  that  title,  the  supreme 
court  of  the  United  States  has  jurisdiction 
as  to  all  such  plaintifis,  though  the  individ- 
ual claims  of  none  of  them  exceed  $5000. 
So  where  a  mortgage  bondholder  files  a  bill 


(jn  behalf  of  himself  and  other  bondholders 
to  foreclose,  and  another  bondholder  inter- 
venes, and  separate  decrees  are  rendered  in 
favor  of  each,  but  for  one  of  them  in  a  sum 
less  than  $5000,  the  court  lias  jurisdiction 
as  to  both  parties.  A'<w  Orleans  I'ac.  R, 
Co.  V.  Parker,  143  U.  S.  42,  12  Sup.  Ct.  Rep, 
364;  affirming  II  Fed.  AV/.  693.— Rkvikw- 
iN(i  Rodd  V.  Heartt,  xj  Wall.  (U.  S.)  354; 
The  Connemara,  103  U.  S.  754;  Shields  v. 
Thomas,  17  How.  (U.  S.)  3. 

Mortgaged  railroad  property  was  ordered 
sold  subject  to  such  liens  for  back  pay  and 
supplies  as  might  be  established.  The  mas- 
ter reported  a  large  number  of  separate 
and  distinct  claims,  which  the  court  or- 
dered tlie  purchasers  to  pay.  J/eld,  that  the 
amount  of  each  claim  determined  the  juris- 
diction of  the  U.  S.  supreme  court,  and  no 
writ  of  error  would  lie  at  the  suit  of  the 
pu/chasers  from  the  allowance  of  any  claim 
less  than  $5000.  Partners'  L.  «S<»  T.  Co,  v. 
Waterman,  12  Am.  &^  Eng,  R.  Cas.  398,  106 
U.  S.  265,  I  Sup.  Ct.  Rep.  131. 

207.  Who  may  appeal.— Purchasers 
of  a  railroad  at  a  foreclosure  sale  may  appeal 
from  a  subequent  decree  adjudging  a  claim 
a  superior  lien  to  the  mortgage.  Louisville, 
E.  (S-  St.  L.  R.  Co.  V.  Wilson,  138  ;/.  S. 
501,  II  Sup.  Ct.  Rep.  405. 

Where  a  railroad  mortgage  is  foreclosed, 
and  the  bondholders  become  the  purchasers 
and  form  a  new  company,  a  bondholder 
who  has  become  a  stockholder  in  the  com- 
pany cannot  appeal  from  the  order  confirm- 
ing the  sale.  Crawshay  v.  Soulier,  6  Wall. 
{l/.S.)739. 

Where  railroad  property  is  sold  under  a 
mortgage  foreclosure  decree  directing  it 
sold,  subject  to  such  liens  for  back  pay  and 
supplies  as  might  be  established,  the  trus- 
tee in  the  mortgage  has  no  interest  in  a  sub- 
sequent decree  directing  the  purchasers  to 
pay  such  liens,  and  therefore  he  cannot  ap- 
peal therefrom.  Farmers'  L.  &'  T.  Co.  v. 
Waterman,  12  Am.  &*  Eng.  R,  Cas.  398,  106 
U.  S.  265,  I  Sup.  Ct.  Rep.  131. 

A  railroad  company  cannot  appeal  from 
a  decree  refusing  it  the  privilege  to  file  a 
cross-bill  in  a  suit  to  foreclose  a  mortgage 
on  its  road,  where  none  of  its  rights  are 
lost  thereby.  Such  refusal  rests  in  the  dis- 
cretion of  the  court.  Indiana  Southern  R. 
Co.  V.  Liverpool,  L.  &•  G.  Ins.  Co.,  14  Am. 
6-  Eng.  R.  Cas.  606,  109  U.  S.  168,  3  Sup. 
Ct.  Rep.  108. 

In  a  foreclosure  suit  pending  in  the  cir- 


P!F 


MORTGAGES,  208,  299. 


517 


cuit  court— the  mortgaged  property  being  in 
possession  of  its  receivers— the  state  of 
Georfria  presented  a  petition  in  which,  dc- 
clininj,'  to  become  a  party  to  the  suit,  it 
asked  that  the  receivers  be  required  to 
withdraw  from  the  possession  of  a  part  of 
the  property  in  their  liands,  upon  some  of 
which  executions  for  state  taxes  liad  been 
levied  prior  to  their  appointment.  Tliu  pe- 
tition was  denied  and  dismissed.  //M,  that 
the  action  of  the  court  could  not  be  re- 
viewed upon  the  appeal  of  the  state,  for  the 
reason,  if  there  were  no  others,  tliat  the  or- 
der did  not  conclude  any  right  it  had  in  vir- 
tue of  the  executions  or  of  the  levies  made 
thereunder.  Georgia  v.  Jcsup,  \i  Am.  iS- 
Eng.  R.  Ctis.  419,  I  o6  U.  S.  458,  i  Sup.  Ct. 
Kep.  363. 

Part  of  an  incompleted  mortgaged  rail- 
road was  sold.  Afterwards  the  mortgage 
was  foreclosed,  with  the  privilege  to  the 
purchasers  to  remove  from  the  right  of  way 
any  ties,  rails,  or  other  structures  placed 
thereon  by  them  after  they  purchased. 
The  mortgage  covered  all  the  property  of 
the  company.  Held,  that  the  company  alone 
could  not  complain  of  the  decree,  as  its  only 
effect  was  to  lessen  the  security  of  the  cred- 
itors, in  which  the  company  had  no  interest. 
Indiana  Southern  R.  Co.  v.  Liverpool,  L.  (3- 
G.  Ins.  Co.,  14  Am.  &•  Eng.  R.  Cas.  606,  109 
U.  S.  168,  3  Sup.  Ct.  Rep.  108. 

A  bondholder  filed  a  bill  tO  avoid  a  fore- 
closure sale  on  the  ground  that  the  mort- 
gage trustee  had  obtained  the  foreclosure 
for  interest  due  and  for  principal  not  due, 
in  violation  of  a  condition  of  the  mortgage 
which  required  the  written  request  of  the 
holders  of  one  third  in  amount  of  the  bonds 
to  declare  the  principal  due  for  failure  to 
pay  interest ;  but  it  appeared  that  plaintiff 
liad  appeared  before  the  master  and  had 
proved  more  tiian  one  third  in  amount  of 
all  the  Londs  issued.  Held,  that  t!ie  trustee 
might  file  a  bill  to  foreclose  for  such  interest 
due  ;  and  by  so  appearing  before  the  master 
plaintiff  ratified  the  action  of  the  trustee  as 
to  the  principal.  And  further,  that,  as  the 
court  had  jurisdiction,  a  decree  for  more 
than  was  due  was  error  which  must  be  cor- 
rected by  appeal ;  and,  as  the  error  was  that 
of  the  trustee,  it  bound  both  him  and  the 
bondholders  whom  he  represented.  Credit 
Co.  V.  Arkansas  C.  R.  Co.,  5  McCrary  (I/.  S.) 
23,  IS  Fed.  /»V/.  46.— D1.STINGUISHING  Chi- 
cago, D.  &  V.  R.  Co.  V.  Fosdick,  106  U.  S. 
47,  I  Sup.  Ct.  Rep.  10. 


20M.  Waiver  of  riiclit  to  appeal.— 

Where  the  trustee  in  a  second  mortgage 
who  is  a  party  to  a  suit  to  foreclose  the  first 
mortgage  in  which  a  decree  has  been  entered 
and  a  sale  made  executes  a  release  of  errors 
in  ilie  proceedings,  and  a  waiver  of  the  right 
">f  appeal  in  good  faith  and  at  the  request 
oi  a  majority  of  the  second  mortgfige  bond- 
holders, other  bondholders  who  are  not 
parties  to  the  suit,  and  wlio  have  declined 
to  contribute  to  the  cost  of  the  litigation, 
will  not  be  allowed  to  prosecute  an  appeal 
in  the  name  of  the  trustee.  Elwell  v. 
Fosdick,  43  Am.  Sf  E>^.  R.  Cas.  450,  134  U. 
S.  500,  10  Sup.  Ct.  Rep.  598.  — Foi.i.owKD 
IN  Farmers"  L.  &  T.  Co.  v.  Kansas  City, 
VV.  &  N.  W.  R.  Co.,  53  Fed.  Rep.  182. 

299.  Wliat  dcurecH  arc  final  and 
reviewable. — A  decree  in  a  suit  in  a  cir- 
cuit court  for  the  foreclosure  of  a  railroad 
mortgage,  fixing  the  compensation  to  be 
paid  to  the  trustees  under  the  mortgage 
from  the  fund  realized  from  the  sale,  is  a 
final  decree  within  the  meaning  of  the  law 
relating  to  appeals.  Williams  v.  Morgan, 
\7  Am.  &*  Eng.R.Cas.  217.  iii  U.S.  684, 
4  Sup.  Ct.  Rep.  638. 

A  decree  in  a  railroad  foreclosure  suit 
which  ascertains  the  amount  due,  and  di- 
rects payment  within  a  fixed  time,  and  pro- 
vides for  an  order  of  sale  if  payment  is  not 
made  in  the  time  fixed,  is  a  final  decree  for 
the  purposes  of  an  appeal.  Milwaukee  &• 
M.  R.  Co.  V.  Sautter,  2  Wall.  (U.  S.)  440. 

Where  a  decree  to  foreclose  a  railroad 
mortgage  fixes  the  priorityof  liens  b'-  classes, 
according  to  the  nature  of  the  claims,  and 
a  subsequent  decree,  after  a  sale,  adjudges 
who  are  the  holders  of  the  liens,  and  fixes 
their  amount,  the  priority  of  liens  can  be 
raised  on  appeal  from  the  latter  decree. 
Porter  v.  Pittsburg  Bessemer  Steel  Co.,  30 
Am.  &*  Eng.  R.  Cas.  472,  1 20  U.  S.  649,  7 
Sup.  Ct.  Rep.  741. 

A  decree  ascertaining  the  debts  due,  and 
ordering  them  paid  by  a  certain  time,  but 
which  does  not  settle  the  priority  of  liens, 
nor  fully  identify  the  property,  nor  provide 
for  an  order  of  sale  and  form  of  advertise- 
ment, is  not  such  a  final  order  as  to  be  ap- 
pealable. Parsons  v.  Robinson,  122  I/.  S. 
112,  7  Sup.  Ct.  Rep.  1153 

In  a  proceeding  to  foreclose  two  railroad 
mortgages  where  there  was  a  conflict  of 
claims,  the  court,  at  the  request  of  the  trus- 
tees and  a  majority  of  the  bondholders, 
decreed  a  sale  of  the  property,  leaving  the 


1 


mm 


I 


\M 


518 


MORTGAGES,  .300-304. 


tt>  > 


pri  )riiy  of  the  liens  to  be  settled  by  a  further 
dec  ree.  //</(/,  that  the  decree  was  a  final 
one  so  as  to  be  reviewed  on  appeal,  and  that 
there  was  no  error  therein,  tirst  Nat. 
Hank  V.  S/ittU,  30  .////.  &'  /itij,'^.  A'.  Las,  439, 
112  (/.  S.  74,  7  Su/).  a.  AVfi.  807. 

itOO.  Tiiiut  within  wliicli  touppcal. 
—  A  linal  foreclosure  decree  directing  the 
sale  of  a  railroad  takes  etiect  from  its  date, 
and  the  fact  that  a  commissioner  is  not 
appointed  until  some  time  afterwards  to  ex- 
ecute the  decree  wdl  not  extend  the  time 
in  wliich  an  ai)i)eal  must  be  taken.  Dutuait 
V.  Athiiilk,  M.  ij-'  O.  A'.  Co.,  4  I/i4i;/u-i  (U. 
S.\  125. 

;I01.  Wliai  will  i>en»viow«Ml  on  np- 
poal.—  In  a  suit,  for  foreclosure  of  a  railrfiad 
mi)rtnat;e.  commenced  in  a  state  court,  and 
riiiu)Vi'd  to  the  <  iicuit  court  of  the  United 
Slates,  a  motion  to  remand  the  cause  was 
made  and  overruled.  Subsequently  a  final 
decree  of  sale  was  passed.  Upon  appeal 
merely  from  the  order  confirming;  the  sale 
the  final  decree  not  disclosing,  atTirnuitively, 
a  want  of  jurisdiction,  this  court  will  not 
examine  the  record,  prior  to  such  final  de- 
cree, to  see  whether  the  petition  for  removal 
was  filed  in  proper  time,  or  whether  it  makes 
a  case  of  federal  jurisdiction  by  reason  of 
the  presence  in  the  suit  of  a  controversy 
between  citizens  of  dilTercnt  states ;  but, 
assuming  that  the  final  decree  was  within 
the  power  of  the  circuit  court  to  render, 
will  only  examine  the  decree  to  a.scertain 
whether  the  sale  was  had  in  cnntormity 
with  its  provisions.  Turner  v.  Juirmer.i'  L. 
&^  T.  Co.,vf  /{m.^*  Eng.  R.  Las.  580,  106 
U.  S.  552.  I  Snp.  Ct.  Rep.  519. 

The  supreme  court  cannot  review  a  decree 
fixing  the  amount  due  bondholders  in  a 
railroad  foreclosure  suit,  on  an  objection 
that  the  allowances  were  not  supported  by 
the  evidence,  where  the  evidence  Ilis  not 
been  sent  up,  nor  any  objection  made  in 
the  lower  court  to  any  evidence.  Indiana 
Southern  R.  Co.  v.  Liverpool,  L.  &*  G.  Ins. 
Co.,  14  .Im.  Sf  Eng.  R.  Cas.  606,  109  If,  S, 
168,  3  Su/>.  Ct.  Rep.  108. 

302.  AlHrniance.— Where  a  suit  to 
foreclose  a  railroad  mortgage  has  been  ap- 
pealed, and  is  sent  back  with  a  mandate 
that  the  complainant  shall  be  at  liberty, 
when  further  instalments  of  interest  should 
become  due  and  unpaid,  to  apply  for  an 
order  of  sale,  a  decree  entered  in  accordance 
with  this  mandate  will  be  affirmed.  Flem- 
ing V.  Sautter,  6  IVall.  (U.  S.)  747, 


:I0:J.  R«'V«'rHal.— a  bill  filed  to  fore- 
close a  mortgage  given  to  secure  bonds  al- 
leged that  the  bonds  were  |)ayablc  in  gold. 
The  decree  of  forcrlosuie  w.is  fot  payment 
in  lawful  money.  Iliid,  not  sufficient  vari- 
ance to  justify  a  reversal.  l\  'allace  v.  Loomis, 
97  U.  S.  146. 

VII.  EXTINOUIBHMENT. 

304.  In  H<*'><'''«1.— The  modification 
of  a  mortgage  does  not  extinguish  it,  nor  is 
its  lien  affected  by  the  substitution  of  a  new 
nrjte  or  bond  inr  the  original  note  or  bond 
secured  by  it.  Ames  v.  Aenv  Orleans,  M.  &* 
T.  R.  Co.',  2  Woods  (U.  S.)  206. 

A  court  of  chancery  will  uphold  a  mort- 
gage (or  the  benefit  of  a  party  who  has  ad- 
vanced money  upon  it  when  equity  requires 
it,  and  it  is  not  indispensable  for  this  pur- 
pose that  the  creditor  in  the  nxjrtgage 
should  be  a  party  to  the  agreement  that  the 
mortgage  should  be  kept  on  foot.  Miller 
v.  Rutland &*  \V.  R.  Co.,  40  Vt.  399. 

Where  a  firm  of  bankers  who  acted  as 
financial  agents  of  a  railroad  company  sur- 
rendered coupons  of  the  first  and  general 
mortgages  of  the  company,  and  received  in 
exchange  bonds  secured  by  an  income  or 
third  mortgage  of  the  road  for  sixty  per 
cent,  of  their  par  value,  which  were  guaran- 
teed to  a  certain  extent  by  a  third  and  sol- 
vent party,  and  were  issued  to  pay  the 
floating  and  accruing  indebtedness  of  the 
company,  the  transaction  operates  as  a  sat- 
isfaction of  the  coupons  surrendered,  and 
the  bankers  are  not  entitled  to  the  benefit 
of  the  lien  of  the  first  and  general  mort- 
gages. Fidelity,  I.,  T.  <S^  S.  D.  Co.  v. 
Shenandoah  Valley  R.  Co.,  38  Am.  &*  Eni,^. 
R.  Cas.  559,  86  Fa.  i,  9  6\  E.  Rep.  759. 

A  statute  authorized  a  railroad  to  sell  its 
bonds  to  raise  money  to  "assist  "  a  subsidi- 
ary road.  The  company  took  the  money 
and  bought  an  existing  mortgage  on  the 
other  road,  taking  an  assignment  to  itself. 
Held,  that  the  purchase  of  the  mortgage 
did  not  operate  as  a  gift  of  the  money  to 
the  indebted  company  so  as  to  discharge 
the  mortgage.  Grand  Trunk  R.  Co.  v.  Lees, 
9  U.  C.  C.  I'  249. 

Several  of  the  different  classes  of  credit- 
O"-"",  of  a  corporation  entered  into  a  com- 
promise agreement,  the  object  of  which  was 
to  wipe  out  all  the  debts  and  securities 
which  existed  against  it  and  substitute 
therefor  a    third    mortgage,  under  which 


sal- 
told. 

llL'Ilt 

.iiri- 
viiis. 


I 


MORTGAGES,  aor»  auu. 


Jl!) 


bonfis  were  to  be  issued  to  the  creditors 
for  ilie  iiinount  of  their  debts  respectively, 
and  thus  to  place  all,  or  substantially  all, 
the  creditors  on  a  comriion  footiiiy  as  to 
security.  /If/ii,  that  a  substantial  depart- 
ure from  tlie  terms  of  this  agreement,  in 
carrying  it  out,  absolved  signers  thereof 
from  its  obligations,  and  left  them  to  stand 
on  their  original  rights  under  the  first  mort- 
gage. M tiler  V.  Rutland  &*  W.  R.  Co.,  40 
K/.  399. 

.'I05.  CaiK'cllatioii  of  rct'onl.— The 
Ci'iiicellaiiun  of  a  mortgage  on  the  record  is 
only  prima  facie  evidence  of  its  discharge, 
and  tlie  owner  may  prove  that  the  ciincel- 
lation  was  done  by  fraud,  accident,  or  mis- 
take ;  and  if  he  d(jes  this,  liis  rights  will  not 
be  atTected  by  the  improper  cancellation  of 
It.  Cruiiilish  V.  Shenandoah  Valley  R.  Co., 
38  //;//.  iSr'  Jutg.  R.  Cas.  577,  32  !{'.  I'a.  244, 
i.)S.  E.  Rep.  180. 

An  entry  of  satisfaction  by  the  mortgagee, 
after  l.c  iiad  parted  with  liis  interest  in  the 
security,  will  not  discharge  the  mortgage  in 
favor  of  one  who  had  acquired  an  interest 
in  the  land  before  the  discharge  was  made. 
Crumlish  v.  Shenandoah  Valley  R.  Co.,  38 
y/w.  <S«  Eng.  R.  Cas.  577,  32  II'.  Va.  244,  9 
.V.  /i.  /iV/.  180. 

The  cancellation  of  the  mortgage,  as  fol- 
lows :  "  This  mortgage  has  been  canceled 
on  the  Of  I  by  til-  receipt  of  Charles 
McVea,  lupiidator,  as  far  as  the  stale  is 
concerned,"  is  not  a  cancellation  of  the 
mortgage  as  to  other  creditors.  In  making 
such  inscription  on  the  face  of  the  mort- 
gage the  liquidator  acted  only  on  behalf  of 
till:  state,  under  a  special  statute,  and  his 
act  did  not  aflect  the  other  mortgage  cred- 
itors of  the  insolvent  corporation,  which  he 
did  not  represent.  Clinton  &*  P.  //.  R,  Co. 
v.  Lee,  22  La.  Ann.  287. 

;{00.  Kxtin{;iii.s1iiiiciit  b.v  Hale.— A 
wife  was  bound  in  solido  with  her  husband 
in  a  mortgage  to  secure  a  subscription  to 
the  capital  stock  of  a  railroad  to  which 
mortgage  the  state  of  Louisiana  was  subro- 
gated. The  state  afterwards  caused  the 
property  to  be  sold  under  execution  against 
the  hi.sband  as  a  defaulting  tax  collector, 
and  the  wife,  through  the  intervention  of  a 
third  person,  became  the  purchaser  at  the 
sale.  Held,  that  such  a  sale  did  not  extin- 
guish the  mortgage  of  the  state.  Haw/cins 
V.  McVea,  14  La.  Ann.  338.  — Reviewing 
New  Orleans  Gas  Light  Co.  v.  Bennett,  6 
La.  Ann.  457. 


<'t<)7.  ^Ivi'Kfcr  oT  iiioi'tuuKV  iiiluc— 

In  equity  a  mortgage  iiuerest  does  not 
necessarily  merge  in  tlie  fee  when  th;.l  is 
iiccjuired  by  tlie  moitgagee;  but  it  will  be 
'1  Id  to  have  merged,  or  otherwise,  accord- 
11, ^,  to  the  actual  or  presumed  intention  of 
such  mortgagee.  Ai^en  v.  Milwaukee  is^ 
St.  J  .  R.  Co.,  37  Wis.  469. 

A  railroad  company  took  a  mortgage  on  a 
tract  of  land,  which  it  assigned,  but  the  as- 
signment was  not  recorded,  and  afterwards 
the  company  obtained  the  fee  to  a  |)art  of 
the  same  land,  which  it  niorlgaged,  in  con- 
nection with  its  other  property,  to  secure 
its  bonds,  and  the  mortgage  was  recorded. 
The  general  mortgage  was  foreclosed  and 
defendant  company  succeeded  to  the  pro|)- 
erty.  Subsequently  suit  was  instituted  to 
foreclose  the  mortgage  on  the  tract  of  land. 
//eld,  that  the  two  interests  never  met  in 
the  s;me  person;  therefore  there  was  no 
merger  of  the  iiiui tgage  in  the  fee.  Aihn 
v.  Milwaukee  &*  St.  /'.  R.  Co.,  37  Wis.  4(19. 
—  Foi.LowiNd  Morgan  v.  Hammett,  34  Wis. 
512.  QUDIING  Comptonv.  Oxenden,  2  Ves. 
Jr.  261  ;  Forbes  v.  MotTatt,  18  Ves.  Jr.  384. 

It  was  the  duty  of  the  grantees  in  the 
trust  deed  or  mortgage,  if  they  desired  that 
deed  to  be  unaffected  by  the  mortgage,  to 
go  beyond  the  record  and  ascertain  from 
other  sources  whether  there  had  been  a 
merger  in  fact.  Aiken  v.  A/ilivaukee  <3-»  St. 
/\  R.  Co.,  yj  Wis.  469. 

.'J08.  Pajiiieiit.— The  fact  that  certain 
of  the  Clinton  &  Port  Hudson  bonds  were 
kept  in  the  same  safe  where  the  liquidator 
of  the  company  kept  its  papers,  books,  and 
assets  did  not  operate  as  a  payment  of  the 
bonds  nor  an  extinction  of  the  mortgage. 
Clinton  <S-  P.  //.  A'.  Co.  v.  Bro7vn,  21  La. 
Ann.  248. 

Where  the  sherifl  held  an  execution  issued 
in  favor  of  the  company  directing  the  sale 
of  the  mortgaged  property,  nothing  short 
of  a  payment  into  the  sherifT's  hands  would 
operate  as  a  payment  or  satisfy  the  mort- 
gage. Clinton  &»  P.  //.  /i'.  Co.  v.  Brown,  21 
La.  Ann.  248-. 

30t>.  Release.— Where  the  release  of  a 
mortgage  states  that  it  was  recorded  in 
Book  30  when  no  such  book  existed,  but 
was  a  mistake  of  the  scrivener  for  Book  20, 
the  error  is  immaterial.  Cow.  ex  rel.  v. 
Wilmington  &>  N.  R.  Co.,  (Pa.)  17  Atl. 
Rep.  5. 

A  mortgage  was  executed  by  a  raifroad 
company  on  its  property,  to  secure  bonds  to 


I 


S 


iti; 


520 


MORTGAGES,  310,311. 


\-i 


It 


1 1 
w    i 


<|12 
I 


be  issued  thereunder,  which  provided  th;it 
upon  the  full  payment  of  all  said  bonds  at 
maturity  the  trustee  should  release  the  same. 
Before  the  maturity  of  the  bonds  they  were 
surrendered  to  the  trustee  upon  an  agree- 
ment that  other  bonds  to  be  issued  under  a 
subsequent  mortgage  should  be  substituted 
for  them.  The  trustee,  without  substituting 
sucli  other  bonds,  executed  a  release  of  the 
mortgage,  stating  therein  that  all  the  bonds 
*'  had  been  surrendered."  The  railroad  was 
not  in  a  condition  to  anticipate  the  pay- 
ment of  its  bonds,  and  had  executed  several 
mortgages  to  take  up  bonds  issued  under 
former  mortgages.  HeM,  that  these  facts 
and  circumstances  were  sufficient  to  charge 
a  subsequent  mortgagee  with  notice  of  the 
terms  and  conditions  upon  which  the  bonds 
under  said  released  mortgage  had  been  sur- 
rendered, and  he  took  subject  to  the  rights 
of  those  entitled  to  the  bonds  under  said 
agreement.  Crumlish  v.  Shenandoah  Val- 
ley R.  Co.,  38  Am.  &»  Ettg.  R.  Cas.  577,  32 
//'.  Va.  244,  9  5.  E.  Rep.  180. 

Vm.  REDEHFTION. 

310.  Jurisdiction  of  suit  to  re- 
deem.— A  company  mortgaged  its  entire 
railroad,  franchises,  and  property  to  the 
commonwealth,  under  Mass.  St.  1854,  ch. 
226,  and  i860,  ch.  202.  to  secure  the  pay- 
ment of  a  loan  made  by  the  commonwealth  ; 
and  subsequently  surrendered  the  same  to 
the  commonwealth,  under  St.  1862,  ch.  156, 
§  2,  which  provided  that  "  the  right  of  re- 
demption "  should  not  be  barred  until  a 
certain  time  after  the  completion  of  the 
road  by  the  commonwealth.  Held,  that  the 
court  had  no  jurisdiction,  either  under  Gen. 
St.  ch.  63,  §  128,  ch.  113,  §  2,  or  ch.  140,  g§ 
'3-35.  of  a  bill  in  equity  brought  by  the 
railroad  corporation  against  the  common- 
wealth to  enforce  this  right  of  redemption. 
Tpoy  i&j  G.  R.  Co.  v.  Cotn.  1 27  Mass.  43. 

311.  Right  to  redeem,  generally.— 
The  statutes  of  Illinois  giving  the  right  to 
redeem  mortgaged  lands  sold  under  de- 
cree do  not  embrace  the  real  estate  of  a 
railroad  mortgaged  in  connection  with  its 
franchises  and  personal  property.  Its  real 
estate,  personalty,  and  franchises  so  mort- 
gaged should  be  sold  as  an  entirety,  and 
without  the  r.ight  of  redemption  given  by 
statute.  The  chattel  mortgage  statute  is 
also  inapplicable  to  an  ordinary  railway 
mortgage.     Hammock  v.  Farmers'  L.  &*  T. 


Co.,  7  Am.  &^  Eiig.  R.  Cas.  465,  105  U.  S. 
77.— Explained  in  Benedict  v.  St.  Joseph 
&  \V.  R.  Co.,  14  Am.  &  Eng.  R.  Cas.  609, 
19  Fed.  Rep.  173.  Quoted  in  McFadden 
V.  May's  Landing  &  E.  H.  C.  R.  Co.,  49  N. 
J.  Eq.  176. 

The  rule  laid  down  by  the  supreme  court 
of  the  United  States  that  the  law  of  Illinois 
relating  to  foreclosure  of  mortgages  on  real 
estate  is  a  rule  of  property  in  a  circuit 
court  of  the  United  States  sitting  in  that 
state  which  gives  a  right  of  redemption 
does  not  apply  to  the  sale  of  railroad  prop- 
erty under  foreclosure  proceedings,  and 
under  the  practice  adopted  by  such  circuit 
court  no  redemption  is  allowed.  Turner  v. 
Indianapolis,  B.&^  IV.  R.  Co.,S  Biss.  ([/. 
S.)  380.— Distinguishing  Brine  v.  Hart- 
ford Fire  Ins.  Co.,  96  U.  S.  627. 

In  the  absence  of  any  statute  to  the  con- 
trary, the  foreclosure  of  a  railroad  mortgage 
cuts  ofT  all  the  rights  and  interests  of  the 
mortgagor  or  the  railroad  corporation  in 
the  mortgaged  property,  and  nothing  is  left 
for  the  general  creditors  and  stockholders 
save  their  interests  in  the  surplus  after  sat- 
isfying the  mortgage.  Vatable\.  New  York, 
L.  E.^-  ir.  R.  Co.,  17  Am.  6-  Eng.  R  Cas. 
268,  96  A'.  1'.  49;  rex'ersing  11  Abb.  N.  Cas. 
J33.— Foi.i.owEDiN  Carpenters.  New  York, 
L.  E.  &  VV.  R.  Co.,  99  N.  Y.  607. 

The  riparian  commissioners  made  a  grant 
to  a  railroad  company,  with  a  covenant  that 
if  the  state  li;id  not  power  to  vest  title  in 
case  of  a  grant  to  another  company  before 
made  the  state  would  release  to  the  railroad 
company  the  previously  granted  premises 
free  from  any  encumbrance  thereon.  The 
trustees  of  public  schools,  who  held  a  mort- 
gage given  in  part  payment  of  the  prior 
grant,  and  the  executors  of  a  surety  on  the 
bond  secured  by  the  mortgage,  asked  for  a 
sale  of  the  property.  The  railroad  company, 
one  of  the  complainants,  asked  that  the  sale 
be  restrained.  Held,  that  the  covenant  con- 
tained in  the  grant  to  the  railroad  company 
would  create  an  equity  in  the  complainants 
to  be  allowed  to  redeem  the  mortgage  and 
be  subrogated  to  the  rights  of  the  mort- 
gagees so  far  as  to  give  protection  against 
a  sale  under  a  decree  pending  the  litigation 
of  the  titles  of  the  parties  respectively,  sub- 
ject, however,  to  the  equities  of  the  per- 
sonal representatives  of  the  surety  on  the 
bond  ;  but  that  it  could  not  be  made  avail- 
able to  the  complainants  against  the  equity 
of    the   mortgagees,  and   of    the   personal 


MORTGAGES,  312-310. 


521 


representatives  of  the  surety  on  the  bond, 
to  have  the  mortgage  and  the  liability  of 
the  surety  taken  out  of  this  litigation. 
American  D.  6-»  /.  Co.  v.  Trustees,  etc.,  35 
N.J.  Eq.  181. 

312.  Uedeiiiptiou  by  Jiiiiiur  luortt 
gagee. — A  second  mortgagee  who  is  not 
a  party  to  a  foreclosure  of  a  first  mortgage 
may  redeem  at  any  time  by  payment  or  ten- 
der of  the  amount  due  on  the  first  mort- 
gage; and  if  interest  only  is  due,  he  may 
redeem  by  tendering  that  amount  only. 
Searles  v.  Jixcksonville,  P.  &*  M.  R.  Co.,  2 
Woods  (U.  S.)  621. 

S13.  Bedeiiiptiou  by  purchaser  at 
judicial  sale. — When  u  company  owning 
a  railroad  lying  in  two  different  states, 
under  charter  from  each  of  those  states, 
nortgages  the  whole  road  and  franchise, 
and  their  right  to  redeem  in  one  state  is 
sold  on  execution,  the  purchaser  of  the 
equity  is  entitled  to  redeem  the  whole  road 
from  the  mortgage.  Wood  v.  Goodwin,  49 
Me.  260. 

The  mortgagee  in  a  second  mortgage  was 
made  a  party  to  a  suit  to  foreclose  a  first 
mortgage,  but  the  decree  failed  to  foreclose 
the  lien  of  the  second  mortgage.  The  court 
held,  on  a  cross-bill  to  foreclose  the  second 
mortgage  and  to  redeem,  that  the  purchaser 
succeeded  to  the  rights  of  the  original  owner 
as  to  the  power  of  redemption.  Held,  that 
such  purchaser  had  a  direct  interest  in  the 
amount  due  upon  the  second  mortgage,  and 
was,  therefore,  entitled  to  present,  and  be 
heard  upon  all  objections  that  could  fairly  be 
made  to  the  validity  of  the  bonds  sought  to 
be  recovered  upon,  under  the  provisions  of 
the  second  mortgage.  Simmons  v.  Taylor, 
38Frt/.AV/.  682.— Distinguishing  Graham 
V.  La  Crosse  &  M.  R.  Co.,  102  U.  S.  148. — 
Quoted  in  McFadden  v.  May's  Landing  & 
E.  H.  C.  R.  Co.,  49  N.  J.  Eq.  176. 

In  such  case  tue  second  mortgage  cov- 
ered the  main  line  of  the  road  and  also  a 
division.  After  the  first  mortgage  was  fore- 
closed certain  bondholders  of  the  second 
mortgage  bonds  filed  a  bill  to  enforce  re- 
demption against  the  division ;  and  a  settle- 
ment was  effected,  in  which  the  plaintiffs  re- 
served their  rights  against  the  company  and 
Its  members,  but  released  all  claims  against 
the  purchaser  at  the  first  mortgage  sale,  or 
against  any  of  its  property,  by  reason  of  said 
second  bo:>ds,  and  subsequently  the  suit 
was  dismissed.  Held,  that  this  barreJ  the 
right  to  enforce  a  redemption  of  any  prop- 


erty which  passed  to  such  purchasers  under 
the  foreclosure  sale.  Simmons  v.  Taylor, 
38  Fed.  Rep.  682. 

The  utmost  right  that  the  second  mort- 
gage bondholders  are  entitled  to  upon  the 
failure  of  the  purchaser  company  to  pay 
the  amount  found  due  tliem  is  the  right  to 
redeem  from  the  sale  already  had,  and  on 
failure  to  redeem  within  the  time  limited  in 
the  decree  their  right  will  be  forever  barred. 
{Shiras,  J.,  dissenting.)  Simmons  \.  Taylor, 
38  Fed.  Rep.  682. 

314.  Time  within  which  to  re- 
deem.—On  a  bill  to  foreclose  for  non-pay- 
ment of  the  interest  on  mortgage  bonds,  a 
reasonable  time  will  be  allowed  for  defend- 
ants to  redeem.  Drexel  v.  Pennsylvania  &> 
N.  Y.  C.  &'  R.  Co.,  6  P/iila.  (Pa.)  503. 

By  the  laws  of  Vermont  mortgagors  are 
entitled  to  time  to  redeem  on  foreclosure, 
and  to  one  year,  unless  the  security  is  inad- 
equate, or  there  are  other  special  reasons 
why  the  time  should  be  shortened ;  and 
this  is  a  right  of  property  which  attaches  to 
a  mortgage,  which  must  be  recorded  and 
preserved  in  a  foreclosure  suit  in  a  federal 
court  sitting  in  that  state.  Jackson  &*  S. 
■Co.  V.  Burlington  &*  L.  R.  Co.,  24  B latch/. 
(Cr.  S.)  194,  29  Fed.  Rep.  474. 

315.  Parties  to  bill  to  redeem.— 
All  who  have  been  so  connected  with  ihe 
mortgage  of  a  railroad  sought  to  be  re- 
deemed as  to  render  them  liable  tor  income 
under  it  should  be  made  parties  defendant. 
Kennebec  6-  P.  R.  Co.  v.  Portland  S-  K. 
R.  Co.,  54  Me.  173. 

Where  a  bill  brought  against  a  railroad 
corporation  in  possession,  and  a  portion  of 
its  members,  to  redeem  a  railroad  from  a 
mortgage,  alleged  that  all  the  individuals 
named  as  defendants  fraudulently  combined 
together  in  all  the  tr&nsactions  set  forth  in 
the  bill,  of  which  the  plaintiffs  complain, 
and  that  they  are  all  partakers  of  the  in- 
come of  the  road  which  should  equitably 
go  in  payment  of  the  mortgage  debt,  and 
the  defendant  corporation  took  possession 
under  the  mortgage — /leld,  there  was  no 
misjoinder  of  defendants.  Kennebec  &•  P. 
R.   Co.   V.    Portland  &-  A'.  R.  Co.,  54  Me. 

'73- 

316.  Requisites  of  bill. —Where  a 

mortgagor  company  files  a  bill  against  an- 
other company  which  is  in  possession  to 
redeem  the  road  from  a  mortgage,  the  bill 
must  allege  that  the  defendant  holds  or  has 
some  title  in  the  mortgage,  or  must  aver 


\ 


I 


ft 


.«'■  ;.,V» 


J<IJ..I,!.'^I4.  J-. 


^^' 


MORTGAGES,  317,  318.~MOTIVE   POWER. 


'Mi-: 


inforniatioii  or  bcl  cf  to  t!i;it  cITlmI  ;  and  it 
must   allege   a    loniuil     oiler   to   pay   sucii 
amount  as  may  be  found  due;  and  a  mere 
prayer  asking   to  be   let  in  to  redeem   on 
payment  is  not  sufficient.     Kennebec  i3«*  /'. 
K.  Co.  V.  Portland Qi^  K.  R.  Co.,  54  Me.  173. 
;J17.  Payment  iieoessary  to  cITect 
redciiiptiou.— Where  a  railroad  is  mort- 
gaged to  secure  principal  and   interest   of 
bonds,   with   the   right   of   possession   and 
foreclosure  on  default  in  paying  either,  if 
default  is  made  in  paying  interest,  the  trus- 
tees  in  the   mortgage   or  any  bondholder 
may  file  a  bill  to  foreclose,  and  will  be  en- 
titled   to  a  decree  nisi   to  ascertain    the 
amount  of  interest  due,  and  giving  a  rea- 
sonable time  for  payment.     If  not  paid,  a 
sale  may  be  ordered  and  the  proceeds  ap- 
plied to  payment  of  both  interest  and  prin- 
cipal ;  but  the  debtor  may  redeem  at  any 
lime  before  confirmation  by  paying  the  past 
due  interest  and  costs.     Chicago,  D.  &•   V. 
Ji.   Co.  V.  Fosdick,  7  Am.  &*  Eng.  A'.  Cas. 
427,  106  U.  S.  47,  I  Sup.  a.  Rep.  ID.— Ex- 
plained IN  Com.  7K  Susquehanna  &  D.  R. 
R.  Co.,  36  Am.  &  Eng.  R.  Cas.  269,  122  Pa. 
St.  306.    Followed  in  Jackson  &  S.  Co. 
V.  Burlington  &  L.  R.  Co.,   29  Fed.  Rep. 
474,  24  Blatchf.  (U.  S.)  194.     Quoted  in 
McFadden  v.  May's  Landing  &  E.  H.  C.  R. 
Co.,  49  N.  J.  Eq.  176;  Central  Trust  Co.  v. 
New  York  C.  &  N.  R.  Co.,  33  Hun  (N.  Y.) 

5'3- 

The  provision  of  U.  S.  Rev.  St.  g  828, 
that  "  for  receiving,  keeping,  and  paying  out 
money,  in  pursuance  of  any  statutes  or  or- 
der of  the  court,"  there  shall  be  paid  to  the 
clerk  "  one  per  cent,  of  the  amount  so  re- 
ceived, kept,  and  paid,"  applies  to  a  fore- 
closure sale  in  a  federal  court,  and  a  person 
offering  to  redeem  may  be  required  to  pay 
the  one  per  cent,  to' the  clerk,  in  addition 
to  the  amount  required  to  redeem,  lilair 
V.  Chicago  &•  P.  A'.  Co.,  11  Biss.  ( U.  S.)  320. 
12  Fed.  Rep.  750. 

Defendants  having  condemned  a  part  of 
lands  covered  by  a  mortgage  without  mak- 
ing the  mortgagee  a  party,  the  latter  after- 
wards foreclosed  without  making  them  par- 
ties, bought  the  lands  for  a  price  which  left 
a  large  balance  due,  and  then  brought  suit 
to  compel  them  to  redeem.  Held,  that  they 
could  not  redeem  by  paying  a  portion  of  the 
mortgage  debt  proportionate  to  the  value 
of  their  land  to  the  whole  tract.  Mutual 
Life  Ins.  Co.  v.  Easton  &*  A.  R.  Co.,  17  Am. 
<5-  Eng.  R.  Cas.  78.  38  N.  J.  Eq.  132. 


;J18.  ProccMlnrc. — In  a  suit  to  redeem 
a  receiver  will  not  be  appointed  so  long  as 
there  is  a  balance  due  to  the  mortgagee 
unless  the  mortgagee  is  mismanaging  the 
property.  Boston  <&*  /'.  K.  Corp.  v.  New 
York  <S-  A',  E.  R.  Co.,  12  A".  /.  220. 

A  petition  by  certain  holders  of  bonds 
secured  by  mortgages  of  the  property  of  a 
railway  company  to  a  trustee  for  such  bond- 
holders to  compel  their  trustee  to  redeem 
certain  property  of  the  company,  which  had 
been  sold  undei^  prior  mortgages— denied, 
under  the  circumstances  of  the  case  ;  the 
necessities  of  the  trust  estate  not  being  re- 
garded by  the  court  such  as  to  make  it  its 
duty  to  make  the  order  ;  and  an  agreement 
which  was  the  foundation  of  the  application 
being  held  to  be  merely  executory,  essen- 
tially outside  of  the  main  issues  in  the 
cause,  and  practically  for  the  benefit  of  only 
the  parties  who  may  enter  into  it,  without 
regard  to  the  interests  of  others  interested 
in  the  trust  estate.  Williamson  v.  New 
Jersey  Southern  R.  Co.,  27  N.J.  Eq.  225. 


MOTflER. 

Right  of,  to  damages  for  causing  death  of 
child,  see  Death  by  Wrongful  Act,  4O9 
89,411. 

sue  for  injury  to  child,  see  Children, 

Injuries  to,  148. 


MOTION. 
For  change  of  venue,  see  Trial,  16-10. 

—  continuance,  see  Trial,  20-26. 

—  new  trial,  see  Mew  Trial,  t)8-103. 
in  court  below,   necessity  of,   see 

Eminent  Domain,  018. 
To  dismiss,  see  Trial,  87. 

—  make  pleading  more  definite  and  specific, 

see  Pleading,  172-174. 

—  remand  cause  after  removal,  see  Removal 

OK  Causes,  5<i-50. 

—  set  aside  foreclosure  ^ales,  see  Mortgages, 

200-294. 


MOTIVE  POWEBc 

Consent  of  abutting  owners  to  change  of,  see 
Street  Railways,  115. 

city  to  change  of,  see  Electric  Rail- 
ways, 8. 

On  "horse  railroad, "  see  Street  Railways, 
41. 

—  street  railways,  regulation  of,  by  statute, 
see  Street  Railways,  25U. 

— under  municipal  grants,  see  Street 

Railways,  17. 


Vi: 


MOTORMEN— MUNICIPAL  AND  LOCAL  AID. 


538 


Ordinances  regulating,  see  Stkkki  Railways, 

203. 
Powers  of  commissioners  as  to,  see   Rapid 

Transit  Acts,  5. 
Right  to  use  electricity  as,   see   Electric 

Railways,  0-8. 
What  to  be    used  on  street    railway,  see 

Street  Railways,  70. 


MOTORMEN. 

Duty  of,  to  slow  up  at  crossings,  see  Electric 

Railways,  38. 
Injury  to  child  invited  to  ride  by,  see  Electric 

Railways,  29. 


MOVING  CARS. 

Attempts  to  cross  in  front  ol',  see  Contribu- 
tory Negligence,  30. 

Competency  of  evidence  as  to  boarding  and 
leaving,  see  Evidence,  33. 

Contributory  negligence  in  boarding  or 
alighting  from,  see  Carriage  of  Pas- 
sengers, 377-391,  415-440;  Em- 
ployes, Injuries  to,  383-387,  740, 
741 ;  Street  Railways.  393-398, 
399-400. 

of  child  getting  on  or  off,  see  Children, 

Injuries  to,  84,  85,  98. 

Disobedience  of  rule  prohibiting  going  be- 
tween, see  Employes,  Injuries  to,  418. 

Effect  of,  on  duty  to  look  and  listen,  see 
Crossings,  Injuries,  etc.,  at,  290. 

Expulsion  of  passenger  from,  see  Ejection  of 
Passengers,  60,  117. 

trespassers  from,  see  Trespassers,  In- 
juries TO,  80-88. 

Injuries  to  employes  while  coupling,  see  Em- 
ployes, Injuries  TO,  175. 

Injury  to  passenger  getting  on,  see  Elevated 
Railways,  201. 


MULTIFARIOUSNESS. 

In  bill  in  equity,  see  Pleading,  83,  84. 
—  foreclosure  bill,  see  Mortgages,  100> 


MULTIPLICITY. 

Of  suits  as  ground  for  injunction,  see  Taxa- 
tion, 357. 


MUNICIPAL  AND  LOCAL  AID. 

Does  not  justify  unjust  discrimination,  see 
Interstate  Commerce,  02. 


Effect  of  consolidation  upon  subscriptions  in, 

see  Consolidation,  34. 
Enforcement    of  bonds    by  mandamus,   see 

Mandamus,  1J>. 
Mortgages  of  municipal  aid  bonds,  see  Mort> 

gages,  24. 
Subrogation  of  purchaser  of  the  bonds,  see 

SUBROGAIION,  O. 

Suit  to  compel  application  of  tax  to  payment 
of  bonds,  when  barred  by  lapse  of  time, 
see  LiMiiATioNs  ok  Actions,  44. 

I.  INTERPRETATION   OF  CONSTITU- 
TIONAL PROVISIONS 524 

n.  POWERS  OF  THE  LEGISLATURE...   526 

III.  CONSTITUTIONALITY      OF     STAT- 

UTES     536 

IV.  CONSTRUCTION  OF  STATUTES 554 

V.  THE  POWER  TO  SUBSCRIBE 563 

VI.  PETITION  AND  CONSENT  OF  TAX- 
PATERS 565 

1.  Petition 565 

2.  Assent  of  Taxpayers 572 

Vn.  ELECTION 576 

VIII.  VALIDITY  AND  EFFECT  OF  THE 

SUBSCRIPTION 610 

IZ.  WHAT  ROADS  MAY  BE  AIDED  ....  621 

X.  CONDITIONAL  SUBSCRIPTIONS. . .  628 

XI.  DONATIONS;  BONUSES 643 

XIL  BONDS 655 

1.  Issnittg 655 

a.  Power  to  Issue  . . .  655 

b.  Compelling     Issu- 

ance    663 

c.  Restraining     Issu- 

ance    667 

2.  Execution,  Form,  and  Con- 

tents   670 

3.  Validity 674 

4.  Ratification.   Estoppel. 

Waiver  of  Defects 684 

5.  Negotiability  atid  Rights  of 

Purchasers 688 

a.  Negotiability 688 

b.  Rights  of  .Holders 

and  Bona   Fide 
Purchasers 690 

c.  Effect  of  Recitals 

in  the  Bonds 700 

6.  Actions  to  Enforce  or  Can- 

cel.    705 

a.  To  Enforce 705 

b.  To  Cancel 710 

Xin.  TAXATION 714 

XIV.  REVIEW 743 

\.  Appeal. 743 

2.  Certiorari. 744 

3.  Mandamus 746 


.  :JS>k 


524 


MUNICIPAL  AND   LOCAL  AID,  1. 


**  "4.    ' 


I.    INTEBFRETATION    OF   C0NSTIT17TI0HAL 
PS0yiBI058. 

1.  Ill  geiiernl.* — The  decision  of  the 
highest  court  of  a  state,  construing  the 
constitution  of  the  state  relative  to  munici- 
pal bonds  in  aid  of  railroads,  is  not  binding 
upon  the  U.  S.  supreme  court  as  affecting 
liic  rights  of  citizens  of  other  states  in  liti- 
gation here,  when  it  is  in  conflict  with  pre- 
vious decisions  of  this  court,  and  when  the 
rights  which  it  affects  here  were  acquired 
before  it  was  made.  Carroll  County  v. 
Smith,  1 5  Am.  <S«»  E»g.  R.  Cas.  6o6,  \\\  U. 
S.  ^yb,\Sup.Ct,Kep.  539.— Disapproving 
Hawkins  v.  Carroll  County,  50  Miss.  735. 
Following  St.  Joseph  Tp.  v.  Rogers,  16 
Wall.  (U.  S.)  664;  Cass  County  v.  Johnston, 
95  U.  S.  360. 

An  act  of  the  legislature  authorizing  a 
city  to  subscribe  to  the  stock  of  a  railroad, 
and  to  issue  its  bonds  in  payment,  is  not  a 
general  law,  within  the  meaning  of  a  pro- 
vision of  the  state  constitution  requiring 
general  laws  to  be  published  before  taking 
etTect;  and  such  bonds  are  valid  though 
issued  before  the  statute  was  published. 
Lu.'r't[  v.  A'acine,  i  Biss.  (U.  S.)  314. 

The  city  making  such  subscription  and 
issuing  bonds  cannot  deny  the  constitu- 
tional power  of  the  legislature  to  declare, 
in  the  statute,  that  it  should  take  effect  im- 
mediately.    Luling  v.  Racine,  i  Biss.  ( U.  5.) 

3'4. 

The  provision  of  the  Illinois  constitution 
of  1870  relating  to  municipal  subscriptions 
to  railroads  or  private  corporations  took 
effect  on  July  2  of  that  year,  as  described  by 
the  supreme  court  of  tliat  state,  which  the 
U.  S.  courts  follow.      Wade  v.  Walnut,  105 

U.  S.  I.— F(JLi.owiNG  Schall  v.  Bowman, 
62  111.  321  ;  Richards  v.  Donagho,  66  111.  74; 
Wright  V.  Bishop,  88  III.  io\.— Schall  v. 
Bowman,  62  ///.  321. — Followed  in  Wade 
V.  Walnut,  105  U.  S.  i  ;  Richards  v.  Dona- 
gho, 66  111.  73;  Wade  V.  LaMoille,  112  III. 
79. — People  ex  rel.  v.   Bishop,  in   ///.  124. 

Wade  V.  LaMoille,  112  ///.  79. — Following 
Schall  V.  Bowman,  62  111.  321. 

A  county  has  a  constitutional  right  to  as- 
sist in  the  construction  of  a  railroad  within 
its  limits.     Dubuque  County  v.  Dubuque  &• 

*  Constitutional  provisions  prohibiting  mu- 
nicipal subscriptions,  see  note,  12  Am.  &  Eng. 
R.  Cas.  597. 

Special  questions  of  constitutional  provisions 
considered,  see  note,  59  Am.  Dec  785. 


/'.  R.  Co.,  4  Greene  {Iowa)  i.— Disapproved 
IN  Hanson  v.  Vernon,  27  Iowa  28.  Fol- 
lowed IN  Gelpcke  v.  Dubuque,  i  Wall. 
(U.  S.)  175.  Overruled  in  Stokes  v. 
Scott  County,  10  Iowa  166;  State  ex  rel.  v. 
Wapello  County,  13  Iowa  388. 

County  and  municipal  subscriptions  for 
stock  in  railroads  affording  peculiar  local 
benefits  to  the  people  affected  by  such  sub- 
scriptions, when  made  in  pursuance  of  leg- 
islative authority,  may  now  be  regarded  as 
of  unquestionable  constitutionality,  in  view 
of  the  numerous  and  uniform  decisions  of 
this  court  sustaining  them.  Shelby  County 
Court  V.  Cumberland  6-  0.  R.  Co.,  8  Bush 
(A'y.)  209. 

The  constitution  of  New  York,  art.  8,  g 
9,  authorizes  the  legislature  to  restrict  the 
power  of  cities  and  villages  as  to  the  power 
to  borrow  money,  contract  debts,  and  loan 
their  credit;  but  it  does  not  restrain  the 
legislature  from  conferring  upon  municipal 
authorities  the  power  to  subscribe  to  the 
stock  of  railroads  and  to  pay  the  same  by 
taxation.  BanJb  of  Rome  v.  Rome,  18  A'.  1'. 
38;  affirmittg  27  Barb.  65.— Following 
Bridgeport  f.  Housatonic  R.  Co.,  15  Conn. 
475;  Clarke  v.  Rochester,  24  Barb.  474.— 
Not  followed  in  People  ex  rel.  v.  Hul- 
bert,  59  Barb.  446.  Reviewed  in  Burnes 
V.  Mayor,  etc.,  of  Atchison,  2  Kan.  454. 

The  provision  of  Ohio  constitution  that 
"the  general  assembly  shall  never  author- 
ize any  county,  city,  town,  or  township,  by 
vote  of  its  citizens  or  otherwise,  to  become 
a  stockholder  in  any  joint  stock  company, 
corporation,  or  association  whatever,  or  to 
raise  money  or  loan  its  credit  to  or  in  aid 
of  any  such  company,  corporation,  or  asso- 
ciation "  is  not  violated  by  the  statute  of 
March  4,  1869,  which  authorizes  nninicipal 
corporations  to  make  improvements  on  their 
own  account  and  with  their  own  means. 
Walkers.  Cincinnati,  21  Ohio  St.  14,  2  Am. 
Ry.  Rep.  84.— Distinguished  in  Taylor?'. 
Ross  County  Com'rs,  23  Ohio  St.  22. 

Wis.  Const,  art.  11,  §  3,  which  makes 
it  the  duty  of  the  legislature  to  jim- 
vide  for  the  organization  of  cities  and  in- 
corporated villages,  and  to  restrict  tlu'ir 
power  of  taxation,  assessment,  borrowing 
money,  contracting  debts,  and  loaning  their 
credit,  clearly  recognizes  the  fact  that  such 
corporations  may  be  authorized  to  borrow 
money,  etc.,  as  a  power  cannot  be  restricted 
unless  it  exists.  Bushnell\,  Beloit,  10  Wis. 
'95- 


MUNICIPAL  AND   LOCAL  AID,  2-4. 


525 


2.  Inhibitions  npplic-able  to  HtntvN, 
but  not  to  counties  and  cities. — The 

prohibition  of  a  state  constitution  tliat  "  the 
credit  of  the  state  shall  not  be  given  to  or 
in  aid  of  any  individual,  association,  or 
corporation  "  applies  to  the  state,  but  not 
to  counties  or  cities.  Robertson  v.  Hock- 
ford,  21  ///.  451.— F(  LOWING  Prettyman 
V.  Tazewell  County  Sup'rs,  19  111.  406. 

That  provision  is  not  violated  by  a  law 
authorizing  municipal  subscriptions  to  rail- 
roads and  levying  taxes  to  pay  the  same. 
Dunnovan  v.  Green,  57  ///.  63.  Leaven- 
worth County  Com'rs  v.  Miller,  7  Kan,  479, 
I  Am.  Ky.  AV/.'2S9. 

The  provisions  of  Neb.  Const,  that  "  the 
state  shall  never  contract  any  debt  for 
works  of  internal  improvement,  or  be  a 
party  in  carrying  on  such  works,"  and  that 
the  debts  of  the  state  "shall  never  in  the 
aggregate  exceed  fifty  thousand  dollars," 
refer  to  the  state  alone,  and  not  to  the  mu- 
nicipal corporations,  and  do  not  prohibit 
them  from  issuing  bonds  in  aid  of  a  rail- 
road.    Hallenbeck  v.  Hahn,  2  Ned.  377. 

3.  Wlien  amendments  are  retro- 
active.— Where  the  vote  on  a  corporate 
subscription  to  a  railway  was  had  and  the 
subscription  made  prior  to  the  adoption  of 
the  present  constitution,  the  constitution 
must  govern,  although  the  bonds  were  not 
issued  until  after  the  adoption  of  the  new 
constitution.    Decker  v.  Hitg/ies,  68  ///.  33. 

The  authority  given  by  the  charter  of  the 
Laclede  &  Fort  Scott  R.  Co.  (Mo.  Laws 
1859,  p.  438)  to  a  county  to  subscribe  to 
the  capital  stock  of  said  company  without 
the  assent  of  the  majority  of  the  resident 
voters  voting  at  an  election  thereon  was  re- 
pealed by  section  2  of  the  act  of  March 
23,  1861  (Laws  1860-61,  p.  60),  and  by  the 
provisions  of  the  constitution  of  1865. 
Wilson  v.  Polk  County,  112  Mo.  126,  20  S. 
W.  Rep.  469. 

Said  repeat  was  not,  as  to  future  sub- 
scriptions, violative  of  the  provisions  of  the 
United  States  constitution  prohibiting  a 
state  from  passing  "a  law  impairing  the  ob- 
ligation of  contracts."  Wilson  v.  Polk 
County,  112  Mo.  126,  20  S.  W.  Rep.  469. 

The  Tenn.  Act  of  Feb.  8,  1870,  authoriz- 
ing a  certain  town  to  subscribe  to  the  stock 
of  a  railroad,  was  abrogated  by  the  new 
constitution  adopted  March  26.  1870,  and 
rendered  bonds  invalid  issued  under  an 
election  held  after  the  adoption  of  the  cnn- 
stitution.     Norton  v.  Brownsville,  1 29  U.  .*>". 


479,  9  .SV//.  Lt.  Kep.  322.^— Approvku  in 
Nelson  v.  Haywood  County,  38  Am.  & 
Eiig.  K.  Cas.  620,  87  Tenn.  781.  FoL- 
I.OWKU  IN  Brownsville  v.  Loague,  129  U. 
S.  493. — Nelson  v.  Haywood  County,  38 
Am.  &*  Eng.  R.  Cas.  620,  87  Tenn.  781,  11 
S.  W.  Rep.  885. —  Approving  Norton  v. 
Brownsville,  129  U.  S.  479;  Aspinwall  v. 
Daviess  County  Com'rs,  22  How.  374. — 
Aspinwall  v.  Daviess  County  Com'rs,  22 
How.  (U.  S.)  364.— Approved  in  Moran 
V.  Miami  County  Com'rs,  2  Black  (U.  S.) 
722  ;  Nelson  v.  Haywood  County,  38  Am.  & 
Eng.  R.  Cas.  620,  87  Tenn.  781 ;  Norton  v. 
Shelby  County,  118  U.  S.  425,  Followed 
in  Concord  v.  Robinson,  121  U.  S.  165.  Re- 
viewed IN  List?/.  Wheeling,  7  W.Va.  501. — 
List  V.  Wheeling,  7  W.  Va.  501.— Review- 
ing Aspinwall  v.  Daviess  County  Com'rs, 
22  How.  364. 

4.  When  amendments  are  not  re- 
troactive.— A  provision  in  a  legislative 
railway  charter  authorizing  counties  to  sub- 
scribe for  its  stock  and  issue  their  bonds  in 
payment  is  a  "  privilege  "  of  the  company, 
which  is  not  taken  away  by  a  subsequent 
constitution.  Thomas  v.  Scotland  County, 
3  Dill.  (U.  S.)  7.— Following  State  ex  rel. 
V.  Sullivan  County,  51  Mo.  522;  Smith  v. 
Clark  County,  54  Mo.  58;  State  ex  rel.  v. 
Greene  County,  54  Mo.  540. 

An  amendment,  passed  in  1859,  to  the 
charter  of  a  city  granting  to  the  mayor  and 
council  authority,  on  the  recommendation 
of  a  majority  of  citizens,  either  in  public 
meeting  or  by  public  election,  to  subscribe 
for  the  stock  of  railroads,  to  borrow  money 
on  the  faith  and  credit  of  the  city  to  pay 
the  same,  and  to  impose  a  special  tax  not 
exceeding  one  half  of  one  per  cent,  in  any 
one  year  to  meet  such  debt  created,  was  not 
repealed  by  that  provision  in  the  constitu- 
tion of  1868  which  declares  that:  "  No  law 
shall  be  passed  by  which  a  citizen  shall  be 
compelled,  against  his  consent,  directly  or 
indirectly,  to  become  a  stockholder  In,  or 
contribute  to,  any  railroad,  *  ♦  ♦  except  in 
the  case  of  the  inhabitants  of  a  corporate 
town  01  city.  In  such  cases  the  general 
assembly  may  permit  the  corporate  authori- 
ties to  take  such  stock  or  make  such  con- 
tribution *  *  ♦  after  a  majority  of  the  qual- 
ified voters  of  such  town  or  city,  voting  at 
an  election  held  for  the  purpose,  shall  have 
voted  in  favor  of  ilic  same.  I)ut  not  oilier- 
\vi«o."  An'ithcr  it'  \i  i  •<  <if  th(>  cnnstitu- 
tiiiii    cxp'cs-iy  s;i\-  s   ''i-.r   :;  ts    jtiisscd  fur 


Lt 


526 


MUNICIPAL   AND   LOCAL   AID,  5. 


the  benefit  of  cities  and  towns  not  Incon- 
sistent with  the  supreme  law  nor  witli  tlie 
constitution  itself.  Mayor,  etc.,  of  Griffin 
V.  Inman,  57  Ga.  370. 

The  III.  Constitution  of  1870,  prohibiting 
future  municipal  subscriptions  to  the  stock 
of  private  corporations,  but  saving  the 
right  to  make  such  as  had  been  authorized 
by  a  vote  "  under  existing  laws,"  did  not  de- 
prive a  city  of  the  right  to  make  a  subscrip- 
tion under  a  prior  vote  which  was  not  au- 
thorized, but  which  had  been  validated  by 
the  legislature  before  the  adoption  of  the 
constitution.  Jonesboro  v.  Cairo  <&*  St.  L, 
R.  Co.,  15  Am.  (S^*  Eni;.  A'.  Cas.  615,  no  I/. 
S.  192,  4  .?■///.  Ct.  Rep.  67. — Disapproved 
!N  Williams  v.  People  ex  rel.,  132  111.  574. 
Distinguished  in  Deland  v.  Platte  County, 
54  Fed.  Rep.  823. 

But  the  obligations  assumed  by  municipal 
corporations  under  then  existing  laws,  prior 
to  the  adoption  of  the  constitution  of  1870, 
cannot,  since  its  adoption,  be  enlarged  or 
materially  changed  either  by  the  action  of 
the  people  of  the  municipality  or  its  corpo- 
rate authorities.  Midiileport  v.  j-Etna  Life 
Ins.  Co.,  82  ///.  562.— Distinguishing  Chi- 
cago &  I.  R.  Co.  V.  Pinckney,  74  111.  277; 
Cliicago,  D.  &  V.  R.  Co.  v.  Smith,  62  111. 
268.  — Followed  in  Moultrie  County  v. 
Fairfield,  105  U.  S.  370 ;  Concord  v.  Robin- 
son, 121  U.  S.  165. 

The  saving  clause  in  the  section  of  the 
constitution  of  1870,  which  prohibits  mu- 
nicipal subscription  or  donation  to  private 
corporations,  applies  only  when  tlie  sub- 
scrijjtion  or  donation  had  been  authorized 
by  vote  under  then  existing  laws  prior  to 
the  adoption  of  that  instrument.  Lifipin- 
cott  V.  Pana,  92  ///.  24.— Followed  in 
Moultrie  County  v.  Fairfield,  105  U.  S.  370. 

The  provision  of  the  Missouri  Constitu- 
tion of  1865,  prohibiting  public  loans  or  sub- 
scriptions to  stock,  except  with  the  assent 
of  the  voters,  acts  prospectively  only  ;  _and 
the  charter  of  a  company  which  is  in  exist- 
ence before  tlie  adoption  of  the  constitution 
is  not  affected  by  it,  but  the  powers  given 
by  it  remain  as  if  no  constitution  existed. 
Callaway  County  v.  Foster,  93  U.  S.  567. — 
Approving  State  ex  rel.  v.  Cape  Girardeau 
&  S.  L.  R.  Co.,  48  Mo.  468.— Followed  in 
Scotland  County  v.  Thomas,  94  U.  S.  682  ; 
Ray  County  v.  Vansycle,  96  U.  S.  675.— 
State  ex  rel.  v.  Macon  County  Court,  41  Mo. 
453.— Distinguishing  Sv.  Joseph  &  D.  C. 
R.  Co.  V.  Buchanan  County  Court,  39  Mo. 


4S5.  FoLi.cjwiNG  Cass  V.  Dillon,  2  Ohio 
St.  607  ;  State  ex  rel.  v.  Union  Tp.,  8  Ohio 
St.  394.  Reviewing  City  &  County  of  St. 
Louis  7K  Alexander,  23  Mo.  483.— Approved 
IN  Nicolay  v.  St.  Clair  County,  3  Dill.  (U. 
S.)  163;  Huidekoper  v,  Dallas  County,  3 
Dill.  171.  Followed  in  Chillicothe  &  B. 
R.  Co.  V.  Mayor,  etc.,  of  Brunswick,  44  Mo. 
553  ;  Smitli  V.  Clark  County,  54  Mo.  58  ; 
Ray  County  v.  Vansycle,  96  U.  S.  675 ; 
Louisiana  v.  Taylor,  105  U.  S.  454;  Ralls 
County  V.  Douglass,  105  U.  S.  728.  Re- 
viewed IN  State  ex  rel.  v.  Saline  County 
Court,  51  Mo.  350. 

To  same  eflect  as  to  Minn.  Const,  as 
amended  in  1872.  State  ex  rel.  v.  Clark,  23 
Minn.  422. 

And  in  Ohio.  State  ex  rel.  v.  Union  Tp., 
8  Ohio  St.  394.— Following  Cass  v.  Dillon, 
2  Ohio  St.  607  ;  State  ex  rel.  v.  Van  Horn, 
7  Ohio  St.  327.— Followed  in  State  ex 
rel.  V.  Macon  County  Court,  41  Mo.  453; 
Knox  County  Com'rs  v.  Nichols,  14  Ohio 
,St.  260. — Knox  County  Com'rs  v.  Nichols, 
14  Ohio  St.  260. — Following  Cass  v. 
Dillon,  2  Ohio  St.  607 ;  State  ex  rel.  ii. 
Union  Tp.,  8  Ohio  St.  400.  Reviewing 
Cincinnati,  W.  &  Z.  R.  Co.  v.  Clinton 
County  Com'rs.  i  Ohio  St.  77. — Followed 
IN  State  ex  rel.  v.  Mayor,  etc.,  of  Perrys- 
burg,  14  Ohio  St.  ^J2.— State  ex  rel.  \.  Mayor, 
etc.,  of  Perrysburg,  14  Ohio  St.  472.— Fol- 
lowing Cass  V.  Dillon,  2  Ohio  St.  607 ; 
Knox  County  Com'rs  v.  Nichols,  14  Oliio 
St.  260. 

Where  the  right  of  a  company  to  munici- 
pal bonds  has  become  vested,  and  it  has 
commenced  the  construction  of  its  road, 
the  right  to  such  bonds  is  not  affected  by 
the  subsequent  adoption  of  a  new  constitu- 
tion, which  takes  away  the  power  to  issue 
such  bonds.  State  ex  rel.  v.  Lancaster 
County  Com'rs,  6  Neb.  214. 

n.  FOWEBS  OF  THE  LEOISLATUBE. 

5.  In  tfciieral.— The  question  whether 
the  legislature  possesses  the  power  to  au- 
thorize counties  to  grant  aid  to  railroad 
companies  by  subscribing  for  stock  therein, 
an.»  issuing  bonds  in  payment  therefor, 
when  it  comes  to  the  court  is  purely  a  legal 
question,  and  the  courts  have  nothing  to 
do  with  the  wisdom  or  policy  of  such  legis- 
lation. Leavenworth  County  Com'rs  v.  Mil- 
ler, 7  Kan.  479. 

Local  legislatures  were  not  restricted  by 


MUNICIPAL   AND   LOCAL   AID,  «. 


the  decree  "  Property  and  civil  rights  in  the 
F^rovince"  to  legislation  respecting  bonds 
held  therein  ;  and  where  debts  or  other  obli- 
gations are  authorized  to  be  contracted  un- 
der a  local  act,  passed  in  relation  to  a  mat- 
ter within  the  power  of  the  local  legislature, 
such  debts  may  be  dealt  with  by  subsequent 
acts  of  the  same  legislature,  notwithstand- 
ing tliat  by  a  fiction  of  law  tliey  may  be 
d(jniiciled  out  of  the  province.  Jones  v. 
Caihuia  C.  K.  Co..  46  U.  C.  Q.  B.  250. 

O.  Ill  absciive  of  coiistitiitioiial  lii- 
liil>iti<iii,  l(;$;islatiire  lius  the  iiuwer. 
— State  legislatures,  unless  prohibited  by 
some  constitutional  provision,  possess  the 
power  to  authorize  municipal  corporations 
to  aid  a  railroad  company  in  constructing 
such  an  improvement  for  the  general  bene- 
fit of  the  citizens  of  the  municipality. 
Kogers  v.  Bitrlitigton,  3  Wall.  (U.  S.)  654. — 
Followed  in  Leavenworth  County  Com'rs 
V.  Miller,  7  Kan.  479. — Queensbury  \.  Culver, 
19  Wall.  (U.  S.)  83.  Taylor  v.  Ypsilanti,  12 
Am.  &*  Ettg.  R.  Cas.  549,  105  U.  S.  60. 
Butler  V.  Dunham,  27  ///.  474.— FoLL(nv- 
ING  Prettyman  v.  Tazewell  County  Sup'rs, 
19  111.  406. — Pretty  man  v.  Tazewell  County 
Sup'rs,  19  ///.  406. — Followed  in  Rob- 
ertson 7>.  Rockford.2i  111.  451  ;  Johnson  v. 
Stark  County,  24  111.  75 ;  Butler  v.  Dun- 
ham, 27  111.  474;  Piiitt  V.  People  ex  rel., 
29  111.  54. — Leavenworth  County  Com'rs  v. 
All  Her,  7  Kan.  479,  i  Am.  Ry.  Rep.  259. 
State  ex  rel.  v.  Linn  County  Court,  44  Mo. 
504.  Hallenbeck  v.  Hahn,  2  Neb.  yj7.— 
Quoting  Thorpe  w.  Rutland  &  B.  R.  Co., 
27  Vt.  142;  Ex  parte  Selma  &  G.  R.  Co.,  45 
Ala.  696. — Reineman  v.  Ccinj^ton,  C.  &•  B. 
H.  R.  Co.,  7  Neb.  310.  People  ex  rel.  v. 
Henshaw,  61  Rarb.  (N.  Y.)  409.  Walker  v. 
Cincinnati,  21  Ohio  St.  14,  2  Am.  Ry.  Rep. 
84.— Distinguishing  Whiting  v.  Sheboy- 
gan &  F.  du  L.  R.  Co.,  25  Wis.  167 ;  People 
ex  rel.  v.  Salem  Tp.,  19  Mich.  11.  Quot- 
ing Sharpless  v.  Mayor,  etc.,  of  Phila.,  21 
Pa.  St.  147.  Reviewing  Cincinnati,  W.  & 
Z.  R.  Co.  V.  Clinton  County  Com'rs,  i  Ohio 
St.  77. — San  Antonio  v.  Lane,  32  Tex.  405. 
—Distinguishing  Henderson  v.  San  An- 
tonio &  M.  G.  R.  Co.,  17  Tex.  560.  Fol- 
lowing San  Antonio  v.  Jones,  28  Tex.  19. 
—Approved  in  Abington  v.  Cabeen,  12 
Am.  &  Eng.  R.  Cas.  581,  106  III.  200.  Fol- 
lowed IN  San  Antonio  v.  Mehaflty,  96  U.  S. 
312.  Not  followed  in  Peck  v.  San  An- 
tonio, 51  Tex.  490. — Bushnell  v.  Beloit,  10 
Wis.  195. 


They  may  be  so  authorized  because  the 
enterprise,  if  connected  with  the  municipal- 
ity, tends  to  improve  the  means  of  travel 
and  transportation,  and  consequently  to 
promote  one  of  the  primary  objects  for 
which  the  municipality  was  created.  Rogers 
V.  Burlington,  3  Wall.  {(/.  S.)  654. 

In  the  absence  of  a  constitutional  provi- 
sion making  a  distinction  between  munici- 
pal subscriptions  to  stock  of  railroads  and 
municipal  donations,  it  is  competent  for  a 
legislature  to  authorize  either  at  the  dis- 
cretion of  the  municipal  authorities.  A'eu' 
Buffalo  Tp.  V.  Cambria  Iron  Co.,  105  U.  S.  73. 

The  legislature  has  no  inherent  power, 
but  all  its  power  is  derived  from  the  peo- 
ple through  the  constitution  of  the  state. 
The  people  in  their  primary  capacity  pos- 
sess all  the  political  power  of  the  state, 
and  may  themselves  authorize  counties  to 
grant  aid  to  railroad  companies;  or  they 
may,  if  they  choose,  delegate  this  power  to 
the  hgislature,  and  allow  the  legislature  to 
grant  such  authority  to  counties.  Leaven- 
worth County  Com'rs  v.  Miller,  7  Art«.  479, 
I  Am.  Ry.  Rep.  259.— Approving  Gelpcke 
V.  Dubuque,  i  Wall.  (U.  S.)  175;  Meyer  z/. 
Muscatine,  i  Wall.  3S4 ;  Thomson  v.  Lee 
County,  3  Wall.  327  ;  Rogers  v.  Burlington, 
3  Wall.  654;  Riggs  V.  Johnson  County,  6 
Wall.  166;  Weber  v.  Lee  County,  6  Wall. 
210;  United  States  ex  rel.  v.  Council  of 
Keokuk,  6  Wall.  514;  Benbow  v.  Iowa  City, 
7  Wall.  313 ;  Lee  County  v.  Rogers,  7  Wall. 
181 ;  Stewart  v.  Polk  County  Sup'rs,  30 
lov.-a  9;  King  v.  Wilson,  i  Dill.  (U.  S.) 
555.  Disapproving  State  ex  rel.  7/.  Wapello 
County,  13  Iowa  388;  Chamberlain  r/.  Bur- 
lington, 19  Iowa  395;  McClure  v.  Owen,  26 
Iowa  243 ;  Sweet  v.  Hurlbut,  51  Barb.  (N.  Y.) 
312;  Hanson  v.  Vernon,  27  Iowa  35;  Whit- 
ing 7'.  Sheboygan  &  F.  du  L.  R.  Co.,  25  Wis. 
167  ;  People  ex  rel.  v.  Salem  Tp.,  20  Mich. 

452- 

The  power  of  the  legislature  to  pass  an 
act  granting  municipal  aid  to  railroad  com- 
panies must  be  found  in  the  general  grant 
of  legislative  power,  under  section  i,  art.  2, 
of  the  Kansas  constitution,  which  provides 
that  the  legislative  power  of  the  state  shall 
be  vested  in  the  legislature,  or  not  at  all. 
Leavenworth  County  Com'rs  \.  Miller,  7 
Kan.  479,  I  Am.  Ry.  Rep.  259. 

As  it  was  the  intention  of  the  people  that 
the  constitution  should  give  to  the  legisla- 
ture the  power  to  pass  acts  authorizing 
municipal  aid  to  railroads,  that  instrument 


4 


1 


% 


■■?- 


528 


MUNICIPAL  AND   LOCAL  AID,  7. 


must  be  so  construed  by  tlie  courts ;  ami 
the  courts  have  no  power  to  amend  it,  or 
change  any  of  its  provisions,  or  insert  any 
new  provisions  in  it,  through  the  means 
of  judicial  construction  or  interpretation. 
I.iuivenworth  County  Com'rs  v.  Miller,  7 
h'ait.  479,  I  Am.  Ay.  Kep,  259. 

Section  2  of  article  xii.  of  the  Nebraska 
constitution  is  to  be  taken  as  restrictive  only 
upon  the  exercise  of  legislative  discretion  in 
tiie  authorization  of  county  and  municipal 
indci)tedness  in  aid  of  railroads  and  other 
internal  improvements.  It  fixes  a  boundary 
beyond  which  the  legislature  cannot  go, 
but  within  which  its  authority  is  still  su- 
preme. Jieineman  v.  Covington,  C.  &*  B.  H, 
R.  Co.,  7  Neb.  310. 

Whether  the  prior  decisions  in  this  state 
holding  that  the  leg'ilature  has  power,  un- 
der the  constitution,  to  authorize  municipal 
corporations  to  subscribe  for  and  hold  stock 
in  railroad  corporations,  ano  to  issue  their 
bonds  in  payment  therefor,  were,  in  effect, 
overruled  by  the  case  of  People  ex  rel.  v. 
Batchellor,  53  N.  Y.  128,  quare  (Andrews, 
Folger,  and  Rapallo,  JJ.,  holding  that  they 
were  not;  Church, C. J., and  Allen,  J.,  hold- 
ing that  they  were,  and  that  the  power  does 
not  exist;  Miller,  J.,  not  voting).  Williams 
v.  Duanesburgh,  ()(>  N.  V.  \  29. 

Where,  however,  in  pursuance  of  legisla- 
tive enactment,  municipal  bonds  have  been 
issued  and  transferred  to  purchasers  for 
value,  prior  to  the  decision  in  People  v. 
Batchellor,  they  are  protected  by  the  earlier 
decisions,  and,  as  far  as  their  validity  depends 
upon  the  constitutional  power  of  the  legis- 
lature, will  be  sustained.  Williams  v.  Dtt- 
anesburgh,  66  A''.  Y.  1 29. 

When  the  authority  given  a  city  is  to 
construct  a  line  of  railroad  having  one  of 
its  termini  in  such  city,  it  does  not  affect 
the  question  of  power  that  the  road  when 
constructed  will  lie  mainly  outside  of  the 
state  of  Ohio.  It  is  the  corporate  interest 
of  the  municipality  which  determines  her 
right  of  taxation,  and  not  the  location  of 
the  road,  which  may  well  be  constructed 
with  the  consent  of  the  state  into  or  through 
which  it  may  pass.  Walker  v.  Cincinnati, 
21  Ohio  St.  14,  2  Am.  Ry.  Rep.  84. 

By  acts  of  assembly  a  county  was  author- 
ized to  subscribe  to  the  stock  of  a  railroad, 
to  issue  bonds  with  interest,  and  deliver 
them  to  the  company  in  payment  for  the 
stock  ;  the  company  was  authorized  to  re- 
ceive them  on  the  terms  of  paying  to  the 


county  or  its  creditors  holding  the  bonds 
interest  equal  to  the  interest  on  the  bonds. 
Held,  that  this  was  a  premium  to  induce 
the  county  to  subscribe,  and  the  legislature 
could  grant  to  both  corporations  power  so 
to  contract.  Pitt'Sburg  &*  C.  R.  Co.  v.  Alle- 
gheny County,  di  Pa.  St.  126.— Foi.LoWKO 
IN  Pittsburg  &  S.  R.  Co.  v.  Allegheny 
County,  79  Pa.  St.  210. 

7.  KxerciNc  ut'  miicIi  |io\vt>r  iiiliib- 
itvd  by  Htate  vuiiNtitiitioii.  —  Under 
Colo.  Const,  art.  11,^2,  neither  the  state,  nor 
any  county,  city,  town,  township,  or  sciiool 
district,  can  make  any  donation  or  grant  to, 
or  in  aid  of,  or  become  a  subscriber  or 
shareholder  in,  any  corporation  or  company. 
Colorado  C.  R,  Co.  v.  Lea,  5  Colo.  192. 

The  constitution  of  Iowa  confers  no  power 
upon  the  legislature  to  authorize  counties 
and  cities  to  become  stockholders  in  railroad 
corporations,  and  to  borrow  money  upon 
their  bonds  for  the  purpose  of  payment  for 
such  stock.  McClure  v.  Owen,  26  Iowa 
243. — Criticising  Gelpcke  v.  Dubuque,  i 
Wall.  (U.  S.)  202.  Following  State  ex 
rel.  V.  Wapello  County,  13  Iowa  389; 
Myers  V.  Johnson  County,  14  Iowa  47;  Mc- 
Millan V.  Boyles,  14  Iowa  107  ;  Rock  v. 
Wallace,  14  Iowa  593 ;  Smith  v.  Henry 
County,  15  Iowa  385  ;  Ten  Eyck  v.  Mayor  of 
Keokuk,  15  Iowa  486;  Chamberlain  v.  Bur- 
lington, 19  Iowa  395. — Followed  in  Han- 
son V.  Vernon,  27  Iowa  28.  Not  followed 
IN  Leavenworth  County  Com'rs  v.  Miller,  7 
Kan.  479.  Quoted  and  reviewed  in 
King  V.  Wilson,  i  Dill.  (U.  S.)  555. 

Under  the  laws  of  Michigan  the  legisla- 
ture has  no  power  to  authorize  a  municipal- 
ity to  submit  to  its  electors  a  proposition  to 
issue  bonds  in  aid  of  a  railroad.  Risley  v. 
Howell,  57  Fed.  Rep.  544.— Following  Peo- 
ple ex  rel.  v.  Salem  Tp.,  20  Mich.  452 ; 
People  ex  rel.  v.  State  Treasurer,  23  Mich. 

499- 

Said  legislature  passed  an  act  authorizing 
a  village  to  vote  bonds  to  make  "  public  im- 
provements "  in  the  village,  the  money  to 
be  expended  under  the  direction  of  the 
council  "  for  the  purpose  aforesaid."  After 
a  favorable  vote  the  council  passed  an 
ordinance  declaring  a  certain  railroad  "  a 
public  improvement  in  the  village,"  and 
directed  a  delivery  of  the  bonds  to  the  com- 
pany. Held,  that  such  action  was  unlawful, 
and  the  bonds  invalid.  Risley  v.  Howell,  5/ 
Fed.  Rep.  544. 

Each  of  said  bonds  was  marked  on  i'.3 


MUNICIPAL   AND   LOCAL  AID,  8. 


539 


m 

%■ 


face  "  Improvement  Bond,"  but  also  re- 
ferred by  date  to  the  above  ordinance  as  one 
source  of  authority  for  its  issuance. .  Ne/d, 
that  this  was  sufficient  notice  of  the  inva- 
lidity of  the  ordinance  to  render  the  bonds 
void  in  the  hands  of  innocent  purchasers. 
jRtsUjf  V.  Hmuell,  57  Fed.  Rep.  544. 

Section  6,  article  8,  of  the  Ohio  Constitu- 
tion declares  that  "the  general  assembly 
shall  never  authorize  any  county,  city, 
town,  or  township,  by  vote  of  its  citizens  or 
otherwise,  to  become  a  stockliolder  in  any 
joint  stock  company,  corporation,  or  asso- 
ciation whatever ;  or  to  raise  money  for,  or 
loan  its  credit  to,  or  in  aid  of,  any  such 
company,  corporation,  or  association."  What 
the  general  assembly  is  thus  prohibited 
from  doing  directly  it  has  no  power  to  do 
indirectly.  Taylor  v.  Ross  County  Com'rs, 
23  Ohio  St.  22. 

8.  Tu  authorize  aid  by  coiiiiticM.— 
The  legislature  has  power  to  authorize  a 
county,  as  a  body  corporate,  to  subscribe 
for  stock  in  a  railroad  company,  if  the 
people  choose  to  do  so  by  a  popular  vote  to 
that  effect.  And  for  the  payment  for  stock 
so  subscribed  the  county,  as  a  corporation, 
may  be  authorized  and  required  to  issue 
bonds  of  the  county,  a  .i  to  deliver  them  to 
the  railroad  company  in  which  the  stock  is 
so  subscribed  for,  in  the  manner  prescribed 
by  law.  Ex  parte  Selma  &*  G.  R.  Co.,  45 
Ala.  696.— Follower  in  Chambers  County 
V.  Clews,  21  Wall.  (U.  S.)  317;  Hart  v. 
Floyd,  54  Ala.  34.  Quoted  in  Hallenbeck 
V.  Hahn,  2  Neb.  377. — Richeson  v.  People 
ex  rel..  115  ///.  450,  5  A'.  E.  Rep.  121. 
Leavenworth  County  Com'rs  v.  Miller,  7 
Kan.  479,  I  Ant.  Ry.  Rep.  259.  People  ex 
rel.  V.  Mitchell,  35  A'^.  K.  551  ;  affirming  45 
Barb.  208.— Quoted  in  Duanesburgh  v. 
Jenkins,  57  N.  Y.  177.— State  ex  rel.  v. 
Chester  &*  L.  R.  Co.,  5  Am.  &»  Eng.  R.  Cas. 
220.  13  So.  Car.  290.— Distinguished  in 
Floyd  V.  Perrin,  30  So.  Car.  i. 

By  the  general  grant  of  legislative  power 
the  general  assembly  of  Indiana  is  em- 
powered to  authorize  counties  to  sub- 
scribe to  railroad  stock,  and  art.  10,  section 
6,  of  the  state  constitution  recognizes  the 
power,  but  so  limits  it  as  to  prevent  such 
subscription  unless  the  stock  be  paid  for 
in  money  at  the  time  of  the  subscription. 
A  county  cannot  subscribe  for  such  stock 
without  affirmative  legislation  authorizing 
it.  Lafayette,  M.  &*  B.  R.  Co,  v.  Geiger,  34 
Jnd.  185. 

6  D.  R.  D.-34 


Tiie  authority  granted  by  the  act  of  May 
12,  1869  (Acts  1869,  p.  93),  is  a  legitimate 
exerciseof  the  power  conferred  on  the  legis- 
lature by  the  constitution  ;  and  the  means 
provided  in  said  act  to  raise  the  money  with 
which  to  pay  for  said  slock  are  appropriate, 
plainly  conducive  to  the  end  proposed,  ajid 
not  prohibited  by  the  constitution  or  in- 
consistent with  the  letter  or  spirit  tlicieof. 
Lafayette,  M.  &*  B.  R.  Co.  v.  Geiger,  34  Ind. 
185. — Followed  in  John  v.  Cincinnati,  R, 
&  Ft.  W.  R.  Co.,  35  Ind.  539. 

The  fact  that  a  vote  of  tlie  inhabitants  of 
the  county  is  required  to  be  taken  before 
the  county  officers  shall  make  a  subscrip- 
tion does  not  affect  the  validity  of  the  law. 
Lafayette,  M.  (S>»  B.  R.  Co.  v.  Geiger,  34  Ind. 
185.— Quoted  in  Alvis  v.  Whitney,  43  Ind. 

83. 

The  general  assembly  of  Missouri  has 
authority  to  authorize  counties  to  subscribe 
to  the  stock  of  railroads  in  other  states  ter- 
minating at  or  near  the  boundaries  of  such 
counties,  even  though  the  read  terminates 
on  the  opposite  side  of  a  river  and  in  an- 
other state,  the  object  being  to  promote 
the  trade  of  the  county,  which,  in  a  frontier 
county,  is  essentially'accomplished  when 
the  road  ternjinatesat  or  near  its  boundary. 
St.  Joseph  (So  D.  C.  R.  Co.  v.  Buchanan 
County  Court,  39  Mo.  485. 

It  is  competent  for  the  legislature,  while 
authorizingthecountiesby  the  General  Rail- 
road Law  of  1853  (Laws  1853,  p.  121)  to  sub- 
scribe to  the  capital  stock  of  railroads,  and 
to  impose  special  taxes  for  the  purpose  of 
paying  such  subscription,  to  declare  wliether 
the  stock  subscribed  for  should  belong  to^ 
the  county  in  its  corporate  capacity  or  to- 
the  taxpayers.  Mastins. Pacific  R.  Ctf.,  83, 
Mo.  634. 

Nor  would  it  have  been  incompetent  for 
the  legislature  to  give  the  stock  in  such- 
case  to  the  taxpayers,  although  the  charter 
of  the  railroad  to  which  the  subscription! 
was  made  was  granted  prior  to  the  General! 
Railroad  Law  of  1853,  and  such  charter  gave 
the  absolute  ownership  of  the  stock  sub- 
scribed by  the  county  to  the  latter  in  its 
municipal  character.  Mastin  v.  Pacific  R, 
Co.,  83  Mo.  634. 

Section  10  of  article  8  of  the  Nevada  Con- 
stitution, which  prohibits  counties,  cities,, 
and  towns  from  becoming  stockholders  in 
corporations,  or  loaning  their  credit  in  aid 
of  any  corporations  except  railroad  com- 
panies, though  it  does  not  confer  any  right 


530 


MUNICIPAL  AND   LOCAL  AID,  O,  10. 


.fik>; 


upon  sucii  organizations,  cIck.'s  not  prevent 
tlie  legislature  from  authorizing  a  county  to 
aifi  a  r;iiirna(l,  titlier  by  loaning  its  crerlit, 
by  donation,  (jr  otherwise.  Gibson  v.  Mason, 
5  Xcv.  283. 

Wis.  Const,  art.  11,  ji  3,  which  authorizes 
tii;.'  legislature  to  restrict  the  powers  of 
cities  and  incorporated  villages  as  to  the 
power  of  "taxation,  assessment,  borrowing 
moiuy,  contracting  debts,  and  loaning  their 
credit,"  does  not  apply  to  counties;  there- 
fore the  legislature  may  authorize  counties 
10  subscribe  to  railroad  stock  and  to  issue 
llieir  bonds  in  payment.  Portage  County 
Siip'rs  V.  Wisconsin  C.  R.  Co.,  121  Mass.  460. 

Where  the  legislature  could  have  con- 
ferred on  the  board  of  supervisors,  in  the 
first  instance,  power  to  exchange  lands  and 
tax  certificates  of  the  county  for  capital 
stock  of  a  railroad,  for  the  purpose  of  aid- 
ing in  its  construction,  it  may,  by  a  subse- 
quent act,  legalize  the  unauthorized  act  of 
the  board  in  doing  so.  Single  v.  Marathon 
County,  38  Wis.  363. 

An  act  of  the  legislature  which  confers 
such  a  power  upon  a  single  county  does  not 
violate  article  4,  section  23,  of  the  state  con- 
stitution, which  prcArides  that  "the  legis- 
lature shall  establish  but  one  system  of 
town  and  county  government,  which  shall 
be  as  nearly  uniform  as  practicable."  Single 
V.  Marathon  County,  38  Wis.  363. 

{>.  To  aiitliorize  aid  l>y  citiuH,  vil- 
Ini^eM,  and  towiiNhipN.— The  legislature 
has  power  under  the  Missouri  Constitution 
of  1865  to  authorize  municipal  townships  to 
subscribe  to  the  stock  of  railroad  companies, 
but  subject  to  the  restrictions  contained  in 
section  14,  article  11,  which  prohibits  the 
making  of  such  subscriptions  without  the 
assent  of  two  thirds  of  the  qualified  voters. 
(By  Hough,  J.)  State  ex  rel.  v.  Brassfield, 
67  Mo.  331.  —  Followed  in  Ranney  v. 
Bader,  67  Mo.  476. 

By  N.  Y.  Const,  art.  8,  §  9,  it  is  the  duty 
of  the  legislature  to  provide  for  the  organi- 
zation of  cities  and  incorporated  villages, 
and  to  restrict  their  power  of  taxation,  as- 
sessment, borrowing  money,  contracting 
debts,  and  loaning  their  credit;  and  the 
question  whether  such  power  has  been  suf- 
ficiently restricted  is  for  the  legislature,  and 
is  not  reviewable  by  the  courts.  Bank  of 
Rome  V.  Rome,  \%  N.  V,  38;  affirming  VJ 
Barb.  65. 

An  act  of  the  legislature  which  author- 
izes the  trustees  of  a  village  to  incur  a  debt 


and  to  issue  bonds  in  payment,  provided 
two  thirds  of  the  electors  of  the  same  siiali 
approve  thereof,  is  not  unconstitutional  as 
a  delegation  of  legislative  power.  Bank  of 
Rome  V.  Rome,  18  A^.  1'.  38;  affirming  27 
Barb.  65.— Dlstinguishing  Barto  v.  Him- 
rod,  8  N.  Y.  483. 

Under  the  North  Carolina  constitution 
the  general  assembly  may  empower  a  town- 
ship, with  the  sanction  of  its  qualified  vot- 
ers, to  aid  in  the  construction  of  a  railroad 
by  levying  taxes  and  contracting  a  debt  to 
raise  money  for  that  purpose.  Brown  v. 
Hertford  County  Com'rs,  100  A'.  Car.  92,  5 
S.  E.  Rep.  178. 

A  township  has  corporate  existence,  and 
the  legislature  may  invest  it  with  pertinent 
corporate  powers,  as  to  subscribe  for  the 
capital  stock  of  a  railroad  company,  fones 
v.  Person  County  Com'rs,  107  A'.  Car.  248,  12 
S.  E.  Rep.  69. 

The  right  of  the  legislature,  with  the  con- 
sent of  the  local  authorities,  to  tax  a  par- 
ticular city  for  a  local  improvement  is  as 
clear  as  the  right  to  lay  a  general  tax  for 
any  public  purpose  whatever.  Sharpless  v. 
Mayor,  etc.,  of  Phila.,  21  Pa.  St.  147. 

In  view  of  the  former  decisions  sustain- 
ing the  power  of  the  legislature  to  au- 
thorize municipal  subscriptions  to  railroad 
stock,  and  the  pecuniary  interests  which 
are  involved  and  are  dependent  upon  such 
decisions,  such  power  is  sustained  ;  other- 
wise a  majority  of  the  court  would  not 
favor  the  power.  Phillips  v.  Albany,  28 
Wis.  340,  5  Am.  Ry.  Rep.  46.— Following 
Whiting  V.  Sheboygan  &  F.  du  L.  R.  Co., 
25  Wis.  186.— Followed  in  Rogan  v. 
Watertown,  30  Wis.  259.  Quoted  in  Law- 
son  71.  Milwaukee  &  N.  R.  Co.,  30  Wis.  597. 

10.  To  aiitli»rize  iiiiiiiicipal  aid 
wlierc  Mtate  aid  is  iiiliiliited.  —  The 
provision  of  Wis.  Const,  art.  8,  §  3,  pro- 
viding that  "the  credit  of  the  state  shall 
never  be  given  or  loaned  in  a,id  of  any  in- 
dividual, association,  or  corporation,"  and 
the  further  provision  of  section  10  that 
"  the  state  shall  never  contract  any  debt  for 
works  of  internal  improvement,  or  be  a 
party  in  carrying  on  such  works,"  only 
apply  to  the  finances  of  the  state,  and  do 
not  relate  to  towns,  counties,  and  cities. 
Bushnellw.  Beloit,  10  Wis.  195. 

Wis.  Const,  art.  9,  §  3,  authorizing  the 
legislature  "  to  provide  for  the  organization 
of  cities  and  incorp«rated  villages,  and  to 
restrict  their  power  of  taxation,  assessment, 


t; 

II 


MUNICIPAL  AND   LOCAL   AID,  11-18. 


531 


borrowing  money,  contracting  debts,  and 
loaning  their  credit,"  authorizes  the  legisla- 
ture, within  proper  limits,  to  em|)owe''  mu- 
nicipal corporations  to  levy  taxes  in  aid  of 
internal  Improvements,  wlierc  the  state  it- 
self would  be  prohibited  from  doing  so 
under  other  provisions  of  the  constitution. 
liitx/tiii-ll  \.  Iteloit,  lo  Wis.  195. 

1  1.  To  iiiitliorizu  aid  hy  huImmiI  diM- 
tricts,— Under  the  constitutif)ii  and  laws 
of  Illinois  "a  congressional  township"  ex- 
ists only  for  public  schtiol  purposes,  and,  in 
the  absence  of  a  special  grant,  has  no  power 
to  subscribe  to  the  stock  of  railroads,  or  tax 
the  people  to  pay  bonds  issued  therefor. 
Weight  man  v.  Clark,  103  U.  S.  256. 

The  constitution  of  184S,  art.  9,  ji  5,  pro- 
viding that  "the  corporate  authorities  of 
counties,  townships,  school  districts,  cities, 
towns,  and  villages  may  be  invested  with 
power  to  assess  and  collect  taxes  for  cor- 
porate purposes,"  does  not  confer  the  power 
on  the  legislature  to  authorize  a  school  dis- 
trict to  issue  bonds  and  collect  a  tax  to  aid 
in  the  construction  of  a  railroad,  such  a  tax 
not  being  for  "  corporate  purposes."  J'fo 
pU  ex  rel.  v.   Trustees  of  Schools,  78  ///.  1 36, 

12.  Tu  crciite  new  districts  for 
purpose  of  giving  siicli  aid.  —  The 
legislature  may  cre.ite  a  district  for  the 
purpose  of  taxation  or  assessment  without 
reference  to  the  existing  civil  or  political 
districts,  Shelby  County  Juili^e  v.  Shelby  /v'. 
Co.,  5  Bush  (A>.)  225. 

Hi.  To  limit  iiiiiiiicipal  powers.— 
The  legislature  may  grant  power  to  a  town 
to  subscribe  to  the  stock  of  a  railroad 
wiiich  may  be  either  general  or  special, 
and  in  granting  it  may  impose  as  many 
conditions,  limitations,  and  restrictions  as 
it  shall  deem  proper.  Duanesburgh  v. 
Jenkins,  40  Barb.  (N.  V.)  574. 

A  provision  in  a  city  charter  that  no  tax 
shall  be  levied  or  money  borrowed  beyond 
necessary  "legitimate  municipal  purposes," 
unless  sanctioned  by  a  majority  of  the  vot- 
ers, is  not  a  limitation  upon  the  city's 
power  to  levy  a  tax  or  contract  debts, 
within  the  meaning  of  Wis.  Const,  art.  11, 
§  3,  which  authorizes  the  legislature  to  re- 
strict the  power  of  municipal  corporations 
as  to  taxation,  assessment,  borrowing  mon- 
ey, or  contracting  debts.  Foster  v.  /Keno- 
sha, 12  iVis.  616. 

14.  To  compel  issuance  of  stock  to 
taxpayers.— Where  counties  in  Indiana, 
under  authority  of  the  act  of  May  12,  1869, 


have  subscribed  and  paid  for  stock  in  rail- 
roads, it  is  competent  for  the  legislature  to 
pass  a  law  requiring  certificates  of  stock  to 
issue  to  each  taxpayer  for  the  amount  of 
taxes  paid  in  purchase  of  the  stock  held  by 
the  county,  and  if  such  certificates  were  not 
claimed  by  a  certain  date,  then  they  should 
issue  for  the  benefit  of  the  school  fund,  and 
upon  the  issue  of  such  certificates  the 
stock  held  by  the  counties  should  cease. 
Tippecanoe  County  Com'rs  v.  Lucas,  93  U. 
S.  108. 

The  provision  contained  in  an  act  of  sub- 
scription that  each  taxpayer  should  receive 
a  remuneration  in  the  shape  of  stock  in  the 
railroad  company  equivalent  to  the  amount 
of  his  tax  assessment  is  not  in  conflict  with 
either  the  first  or  twenty-fourth  clause  of 
the  Florida  "  Declaration  of  Rights."  Cot- 
ten  V.  Leon  County  Com'rs,  6  Fla.  610. 

The  provision  of  the  act  which  author- 
izes the  counties  to  issue  bonds  for  the  pur- 
pose of  raising  money  to  pay  for  the  stock 
to  be  purchased  docs  not  contravene  the 
letter  or  spirit  of  the  thirteenth  clause  of 
the  thirteenth  article  of  the  constitution, 
which  prohibits  the  general  assembly  from 
pledging  the  faith  and  credit  of  the  state  to 
raise  funds  in  aid  of  corporations.  Cotten 
V.  Leon  County  Com'rs,  6  Fla.  610. 

15.  To  compel  municipalities  to 
subscribe.— The  legislature  has  the  power 
to  compel  a  county  to  subscribe  to  the  stock 
of  a  railroad  company  in  cases  where  the 
road  has  been  completed  as  well  as  where 
such  road  has  not  bee'n  built.  Napa  Valley 
A\  Co.  V.  JVapa  County  Sup'rs,  30  Cal.  435. 
—  Foi.i.mvEi)  IN  Stockton  &  V.  R.  Co.  v. 
Stockton,  41  Cal.  147. 

The  legislature  has  not  the  constitutional 
power  to  create  a  corporate  indebtedness  of 
a  county  or  city  in  favor  of  a  railway  com- 
pany by  declaring  that  an  illegal  vote  to 
subscribe  to  the  capital  stock  of  such  rail- 
way company  is  valid.  It  is  not  within  the 
power  of  the  legislature  to  compel  a  mu- 
nicipal corporation,  without  its  own  consent 
legally  expressed,  to  enter  into  or  assume 
obligations  to  others.  Choisserv.  People  ex 
rel.,  140  ///.  21,  29  N.  E.  Rep.  546.— Quot- 
ing Marshall  v.  Silliman,  61  111,  218. — Barnes 
V.  Lacon,  %\Ill.  461. 

The  provisions  of  Mich.  Const,  of  1850. 
art.  14,  §g  7-9,  which  expressly  prohibit  the 
state  from  being  a  party  to,  or  interested  in, 
any  work  of  internal  improvement,  or  from 
engaging  in  carrying  on  any  such  work  ex- 


•'ii. 


I 


MUNICIPAL   AND   LOCAL   AID,  lO-lO. 


M 


m.i 


cc'|it  ill  the  cxpcndltuie  of  (^'ratilsinadi;  to  ii. 
iii)()  fnjin  subscril)iii(<;  to,  or  being  iiitcrcsti'd 
ill,  the  stock  of  any  company,  association,  or 
Corporation,  or  loaning;  its  credit  in  aid  of 
any  person,  association,  or  corjmration,  con- 
strued to  prevent  the  state  from  requiring 
townships  lo  do  any  of  the  acts  above  enu- 
merated. People  ex  rel,  v.  State  TriUisurer, 
33  Mich.  499,  I  Am.  Ay.  I\'ef>.  9^).  — Foi,- 
LdWKi)  IN  Risley  v.  Howell,  57  Fed.  Rep. 

544. 

Municipal  corporations  exist  for  |)iil)lic 
purjioses,  and  may  be  required  by  the  legis- 
lature to  provide  for  the  construction  of  im- 
provements strictly  of  a  public  character, 
such  as  highways  ;  but  railroads  owned  and 
operated  by  corporations  for  the  benefit  of 
individual  stockholders  are  so  far  of  a  pri- 
vate character  that  a  municipal  corporation 
cannot  be  compelled  to  impose  a  tax  in  aid 
thereof  without  the  consent  of  the  taxpay- 
ers. People  ex  rel.  v.  liatchellor,  53  W  Y 
128,  5  Am.  Ky.  Rep,  25.— Appi.VlNi;  West- 
ern Sav.  Fund  Soc.  v.  Philadelphia,  31  Pa. 
St.   185;  Bailey  v.   Mayor,  etc.,  of  N.   Y., 

3  Hill  (N.Y.)  531.  Distinguishing  Olcott 
V.  Fond  du  Lac  County  Sup'rs,  16  Wall.  (U. 
S.)  678 ;  People  ex  rel.  v.  Mayor  of  Brooklyn, 

4  N.  Y.  419;  Guilford  v.  Chenango  County 
Sup'rs,  13  N.  Y.  143.  Reviewing  People 
ex  rel.  v.  Richmond  County  Sup'rs,  28  N.  Y. 
112. — Approved  in  Thompson  v.  Perrine, 
103  U.  S.  806.  Di.sriNGUiSHEU  in  Brownell 
V.  Greenwich,  114  N.  Y.  518,  22  N.  E.  Rep. 
24,  24  N.  Y.  S.  R.  6,  4  L.  R.  A.  685.  Fol- 
lowed IN  Horton  v.  Thompson,  71  N.  Y. 

5'3- 

Although  the  legislature  cannot  compel  a 
municipal  corporation  to  subscribe  for  rail- 
road stock,  and  to  issue  its  bonds  in  pay- 
ment therefor,  yet, where, under  a  mandatory 
act,  the  municipality  has  voluntarily,  and 
without  the  compulsion  of  judicial  process, 
subscribed  for  and  taken  the  stock,  and  is- 
sued its  bonds,  the  latter  are  not  invali- 
dated by  the  compulsory  character  of  the 
act ;  it  operates  as  an  authority  and  per- 
mission to  do  the  acts ;  and,  having  been 
done,  they  will  be  considered  as  having 
been  done  voluntarily.  Williams  v.  Duanes- 
burgh,  66  A^.   Y.  129. 

16.  To  bind  flitiire  legrislatiires.— 
Under  Wis.  Act  of  1872,  ch.  182,  §  11,  pro- 
viding that  "if  any  county,  town,  city,  or 
village  shall  issue  and  deliver  to  any  railroad 
company  any  bonds  ♦  *  *  it  shall  not  there- 
after issue  or  deliver  any  bondsor  incur  any 


liai)iljty  ill  aid  of  the  construction  of  the 
railroad  of  such  company  by  virtue  of  the 
authority  (jf  any  other  law  of  this  state,"  the 
words  "other  law  of  this  state  "  must  bi- 
limited  to  laws  existing  at  the  time,  as  one 
legislature  cannot  biiu!  future  Icgislaiures : 
and  a  subsequent  act  in  conflict  with  such 
chapter  would  be  construed  as  a  repeal 
thereof.  Oleson  v.  Green  lii}y  <S«»  /,.  /'.  A'. 
Co.,  36  Wis.  383. 

17.  Wlicre  inuiiii'iiml  iii<lolit<><l- 
IM'HM  is  limited  l»y  law.— A  provision  of 
law  that  a  city  shall  not  increase  its  debt 
above  §500,000  only  prohibits  the  city  from 
exceeding  that  amount  without  further  au- 
thority, but  does  not  prohibit  the  legislature 
from  authorizing  the  city  by  a  subsequent 
act  to  subscribe  to  the  stock  of  a  railrr)ad 
and  issue  its  bonds  in  paynient,  which  will 
increase  the  debt  of  the  city  above  8500,000. 
Amey  v.  Allegheny  City,  24  How.  ( U.  S.)  364. 

18.  Cuiiiiot  «M>iif(>r  iiiiliinitcd  pow- 
er ol  tnxntioii.  — An  act  of  the  legis- 
lature to  confer  upon  municipal  corporations 
unlimited  power  to  levy  taxes  and  raise 
money  for  other  objects  than  legitimate 
municipal  purposes  would  be  in  conflict 
with  art.  11,  section  3,  of  the  Wisconsin  Con- 
stitution, which  requires  the  legislature  to 
restrict  the  power  of  such  corporations  as 
to  taxation,  assessment,  borrowing  money; 
and  contracting  debts.  Foster  v.  Kenosha, 
12  IVis.  616.— Distinguished  in  Smith  v. 
Fond  du  Lac,  10  Biss.  (U.  S.)4i8,  8  F  d. 
Rep.  289. 

10.  Public  cliaracter  of  ti 
proveiiieiit.*—  The  power  of  the  sla- 
ture  to  authorize  municipal  corporate  s  to 
levy  taxes  to  aid  in  the  construction  of  Kx  al 
improvements  or  public  works  is  limited  to 
such  as  are  strictly  of  a  public  character,  and 
does  not  extend  to  aid  in  the  construction 
of  a  railroad  which  is  owned  and  operated 
by  a  private  corporation.  People  ex  rel.  v. 
Salem  Tp.,  20  Afich.  452.— Disapproved  in 
Pine  Grove  Tp.  v.  Talcott.  19  Wall.  (U.  S.) 
666 ;  Hallenbeck  v.  Hahn,  2  Neb,  377.  Fol- 
lowed IN  Risley  v.  Howell,  57  Fed.  Rep.  544. 
Quoted  but  disapproved  in  Leaven- 
worth County  Com'rs  v.  Miller,  7  Kan.  479. 
—Chamberlain  v.  Burlington,  19  Iowa  395, 
—Reviewing  Gelpcke  v.  Dubuque,  i  Wall. 
205.—  Followed  in  McClure  v.  Owen,  26 
Iowa  243.    Not  followed  in  Leavenworth 

*  Railroads  considered  as  "  a  public  use,"  }k,%- 
tifying  municipal  aid,  see  note,  14  L.  R.  A. 479. 


MUNICIPAL   AND    LOCAL   AID,  20,21. 


533 


»»(< 


I 


County  Com'rs  7'.  Miller,  7  Kan.  479.     Rk- 
VIKWKU  IN  King  IK  Wilson,  1   Dill.  (U.  S.) 

555- 

Aid  can  be  extended  to  railroad  corpora- 
tions, turnpike  companies,  etc.,  by  counties 
or  cities  only  upon  the  tliecjry  tliiit  such  in- 
tcrnal  improvements  are  for  the  local  pub- 
lic benefit,  conducive  to  the  prosperity  and 
common  welfare  of  the  local  public.  Haw- 
kins  V.  Carroll  County,  50  .!//«.  735. 

A  railroad  is  a  public  improvement  and  a 
j)roper  object  for  public  aid  ;  and  the  mere 
fact  that  private  individuals  are  to  own  it 
and  receive  the  tolls  in  no  wise  impairs  or 
(limmishes  the  advantages  to  be  derived 
from  it  to  the  public.  Gifison  v.  Mason,  5 
A'<T.  283.— QuDiiNCi  Heekman  v.  Saratoga 
&S.  R.  Co.,  3  Paige  (N.Y.)  45. 

The  legislature  cannot  delegate  to  a  town- 
ship the  power  to  tax  for  a  public  purpose 
within  its  limits  unless  the  tax  be  also  for  a 
corporate  purpose ;  but  the  legislature,  by 
the  exercise  of  its  own  power,  may  impose 
a  tax  for  a  public  purpose  aflecting  a  town- 
ship, although  such  purpose  is  not  corpo- 
rate. And  a  railroad  is  so  far  a  public  pur- 
pose as  to  a  township  through  which  it 
passes  that  the  legislature  may  impose  a 
tax  upon  the  property  of  a  township,  pro- 
vided the  legislature  is  satisfied  that  the  in- 
habitants have  consented  to  be  taxed  for 
such  purpose.  State  ex  rel.  v.  Neely,  30  So. 
Car.  587,  9  S.  E.  Rep.  664. 

The  construction  of  a  railroad  through  a 
county  or  municipal  corporation  is  a  town 
or  county  corporation  purpose  within  the 
meaning  of  Teiin.  Const,  art  2,  §  29,  confer- 
ring upon  the  legislature  "  the  power  to  au- 
thorize the  several  counties  and  incorpo- 
rated towns  of  the  state  to  impose  taxes  for 
ccmiity  and  corporation  purposes."  Louis- 
ville &•  R.  Co.  v.  Davidson  County  Court, 
I  Sneed  {Tenn.)  637.  — DiSTlNdUlSHKD  IN 
Green     v.     Dyersburg,    2     Flipp.    (U.    S.) 

477. 

A  statute  authorized  a  town  to  issue 
bonds  in  uid  of  a  railroad  upon  the  written 
assent  :  a  majority  of  the  taxpayers,  and 
It  was  objected  to  the  validity  of  such 
bonds  that  the  town  could  only  be  bound 
by  a  vote  at  a  town  meeting.  Held,  that, 
the  town  being  the  creature  of  legislation, 
and  only  existing  for  public  purposes,  it  was 
competent  for  the  legislature  to  enable  it  to 
issue  such  bonds  in  any  manner  that  the 
legislature  might  deem  fit.  First  Nat.  Rank 
V.  Concord,  50  V't.  257.— Followed  in  First 


Nat.  Bank  v.  Arlington,  16  Blatchf.  (U.  S.) 

57. 

20.  liii|>rov«>iii<>iit  ii<*t>(l  not  li«  <*ii- 
tir«>ly  witliiii  tiixiiiK  <liNtri<;t.— A  mu- 

nicipalcorporatioii  may  be  legally  authorized 
by  legislative  act  to  subscribe  to  stock  of  a 
railroad  whose  line  extends  or  whose  opera- 
tions are  carried  on  beyond  the  limits  of 
such  municipal  corporation,  or  even  outside 
the  state,  if  such  aid  be  for  the  corporate 
interest.  Bass  v.  Mayor,  etc.,  of  Columbus, 
30  Ga.  845.  Pattison  v.  Yuba  County  Sup'rs, 
13  Cal.  175. 

To  authorize  a  municipal  corporation  to 
take  s.ock  in,  or  aid  in  the  construction  of, 
a  railroad  outside  of  the  limits  of  such  cor- 
poration there  must  be  an  express  grant  of 
power.  Gibbons  v.  Mobile  i&-  C^.  A'.  R.  Co., 
36  Ala.  410. 

Bonds  were  voted  to  a  road  that  was  to 
be  built  "to"  a  town.  The  road  was  built 
to  within  a  fraction  of  a  mile  from  the  town. 
The  bonds  were  not  issued  until  after  the 
location  of  tlie  road,  and  were  delivered 
without  objection,  and  interest  paid  from 
time  to  time.  Held,  a  sufficient  compliance 
with  the  vote,  and  no  defense  to  payment 
of  the  bonds.  Johnson  County  Com'rs  v. 
Thayer,  94  U.  S.  631. 

21.  No  voHt«Ml  riglitH  till  Hiibscrip- 
tioii  In  actually  iiindc— Where  a  statute 
gives  county  authorities  power  to  donate  its 
bonds  in  aid  of  a  railroad,  upon  a  popular 
vote  in  favor  of  the  same,  but  does  not 
bind  it  to  do  so,  a  popular  vote  favoring 
the  donation,  and  thcbuilding  the  road  on 
the  faith  of  the  same,  do  not  give  the  com- 
pany such  a  vested  right  to  the  bonds  as 
will  prevent  the  legislature  from  repealing 
the  law  authorizing  their  issuance,  and  thus 
defeat  them.  Wadsworth  v.  Eau  Claire 
County  Sup'rs,  102  U.  S.  534. — APPROVED 
IN  Norton  ?'.  Shelby  County,  1 18  U.  S.  425 ; 
Nelson  v.  Haywood  County,  38  Am.  &  Eng. 
R.  Cas.  620,  87  Tenn.  781.  Followed  in 
Concord  v.  Robinson,  121  U.  S.  165. 

A  railroad  corporation  has  no  vested 
right  in  a  municipal  subscription  to  its  capi- 
tal stock  until  the  subscription  is  actually 
made  ;  and  until  that  event  occurs  the  legis- 
lature may  alter  the  method  whereby  such 
subscription  is  to  be  made  without  infring- 
ing any  vested  right.  (Hough  and  Napton, 
J  J.,  dissenting.)  State  ex  rel.  v.  Carroutte, 
67  Mo.  445.— Reviewing  Smith  v.  Clark 
County,  54  Mo.  58.— Followed  in  Wagner 
V.  Meety,  69  Mo.  150. 


5 


=^1 


> 


1 


584 


MUNICIPAL  AND   LOCAL  AID,  22. 


22.  AVIicii  invalid  Hiibseriptioii 
may  lie  cured  i>y  a  retrospective 
net.* — A  state  legislature,  when  not  re- 
stricted by  its  constitution,  may  by  subse- 
quent statute  legalize  unauthorized  acts  of 
municipal  corporations  in  subscribing  to 
the  stock  of  railroads  in  any  case  where 
such  acts  might  have  been  previously  au- 
thorized by  tlie  legislature.  Si/otte  v.  Illinois 
C.  A'.  Co.,  23  j-t»i.  &>  Ettg.  A'.  Cus.  597,  1 16 
I/.  S.  347,  6  Sup.  U.  Rep.  348.  388.  1191.— 
AlM'KOVEl)  IN  Illinois  C.  R.  Co.  v.  People, 
143  111.  434.—  Will  son  V.  Mercer,  8  Pet.  (U. 
S.)  88.— Fui.iowK.n  IN  Gelpckez/.  Dubuque, 
I  Wall.  175;  St.  Joseph  Tp.  7'.  Rogers,  16 
Willi.  644. —  Tltomsou  V.  Lee  County,'^  Wall, 
\V.  S.)  327.  -F(JLi  OWING  McMillen  v.  Lee 
County  Judge,  6  Iowa  391. — Followed  in 
St.  Joseph  Tp.  V.  Rogers,  16  Wall.  644; 
'-cavenwortli  County  Com'rs  v.  Miller,  7 
Kan.  479.— /f '///A-  U'ahr  Valley  Canal  Co. 
V.  Viilletle,  21  How.  {[/.  5.)  414. —  FoL 
LOWED  IN  Gclpcke  V.  Dubuque,  i  Wall. 
i7S.—C7elpci-e  v.  Dubuque,  I  Wall.  (U.  S.) 
175.—  Following  McMillen  v.  Boyles,  6 
iowa  305  ;  McMillen  v.  Lee  County  Judge, 
<i  Iowa  393;  Wilkinson  v.  Leiand,  2  Pet. 
627 ;  Satterlee  v.  Matthewson,  2  Pet.  380 ; 
Baltimore  &  S.  R.  Co.  v.  Nesbit.  10  How. 
395;  White  Water  Valley  Canal  Co.  v.  Val- 
Ictto,  21  How.  425;  Watson  7>.  Mercer,  8 
Pet.  ^%.St.  Joseph  Tp.  V.  R(^ers,  16  Wall, 
(C.  S.)  644,  2  Am.  Ry.  Rep.  105. -Follow- 
ing Cowgill  V.  Long,  15  111.  203;  Keiths- 
burg  V.  Frick,  34  III.  405  ;  Thomson  v,  Lee 
County,  3  Wall.  327;  Kenosha 7'.  Lamson,  9 
Wall.  477;  Watson  7>.  Mercer,  8  Pet.  iii; 
Bissell  V.  JefTersonville,  24  How.  295. — Ap- 
plied IN  Duanesburgh  ?/.  Jenkins,  57  N. 
Y.  177. —  Unity  v.  liurrage,  2  Atn.  &•  E>ig, 
R.  Cas.  560,  103  U.  S.  147.  Jonesboro  v. 
Cairo  &*  St.  L.  R.  Co.,  1$  Aw.  &*  Eng.  R. 
Cas.  615,  no  U.  S.  192,  4  Sup.  Ct.  Rep.  67. 
Otoe  County  v.  Baldwin,  1 5  Am.  <S-  Eng.  R. 
Cas.  563.  Ill  U.  S.  I,  \Sup.  Ct.  Rep.26'3. 
Grenada  County  Sup'rs  v. Broaden,  i\2  U.  S, 
261,  5  Sup.  Ct.  Rep.  125.  Anderson  v.  Santa 
Anna  Tp.,  wt,  U.  S,  356,  6  Sup.  Ct.  Re^\ 
413.— DlSTiNGULSHED  IN  Deland  v.  Platte 
County,  54  Fed.  Rep.  825.  Followed  in 
Bolles  T'.  Brimfield,  120  U.  S.  759. — Holies  v. 
Br iw field,  1 20  V.  S.  759,  7  Sup.  Ct.  Rep. 
736.— Disapproving  Marshall  v.  Silliman, 
61  111.  226.    Distinguishing  People  ex  rel. 

*  Retroactive  Atatutec   validntinK  vojd    sub- 
scriptions, ffee  note,  ij  Am.  ft  Eng.  R.  Cas.  621. 


V.  Mayor,  etc.,  of  ChicEgo,  51  III.  17  ;  People 
ex  rel.  v.  Salomon,  51  111.  37 ;  People  ex  rel. 
V.  Chicago,  51  111.  58;  Harward  v.  St.  Clair 
&  M.  L.  &  D.  Co.,  51  III.  130.  Following 
Burgess  z/.  Seligman,  107  U.  S.  33;  Carroll 
County?'.  Smith,  iii  U.  S.  563;  Anderson 
V.  Santa  Anna  Tp.,  116  U.  S.  356. — Dls- 
TINGUISHED  IN  Deland  v.  Platte  County, 
54  Fed.  Rep.  823.  Followed  in  Dows  v. 
Elmwood,  34  Fed.  Rep.  1 14.  —  Risers  v. 
Keokuk,  1 8  Law  Ed.  ( U.  S.)  74.  Quincy  v. 
Cooke,  12  Am.  6~»  Eng.  R.  Cas.  645,  107  U. 
S.  549,  2  Sup.  Ct.  Rep.  614.  Bridgeport  v. 
Housatonic  R.  Co.,  15  Ct)//«.47S. — Approved 
IN  Nichol  V.  Mayor,  etc.,  of  Nashville,  9 
Humph.  (Tenn.)  252;  Cincinnati,  W.  &  Z. 
R.  Co.  V.  Clinton  Connty  Com'rs,  i  Ohio  St. 
77.  Followed  in  McMillen  v.  Lee  County 
Judge,  6  Iowa  391  ;  Talbot  v.  Dent,  9  B. 
Men.  (Ky.)  526;  Bank  of  Rome  ;/.  Rome,  18 
N.  Y.  38.  Nor  FOLLOWED  in  Hanson  v. 
Vernon,  27  Iowa  28. — McMillen  v.  Boyles,  6 
Iowa  304.  — Followed  in  Gelpcke  v.  Du- 
buque, I  Wall.  175.  Reviewed  in  Stokes 
V.  Scott  County,  10  Iowa  166. — McMillen  v. 
Lee  County  Juilge,  6  Iowa  391.— Following 
Bridgeport  7>.  Housatonic  R.  Co.,  15  Conn. 
475.— Followed  in  Gelpcke  v.  Dubuque,  i 
Wall.  175  ;  Thomson  v.  Lee  County,  3  Wall. 
327. — Shelby  County  Court  v.  Cumberland 
<S-  O.  R.  .  ,  8  Bush  (Ry.)  209.  Steines  v. 
Eranklin  County,  48  Mo.  167.  Belo  v.  Eor- 
syt/ie  County  Com'rs,  76  A'.  Car.  489.  Redd 
v.  Henry  County  Sup'rs,  31  Gratt.  (Va.)  695. 

But  where  a  bill  is  filed  to  sustain  such 
subscription  it  ought  to  aver  such  ratifica- 
tion ;  but  an  answer  which  puts  in  issue 
such  ratification  may  supply  the  place  of 
such  averment  in  the  bill.  Putnam  v.  Xetv 
Albany,  4  Biss.  ( U.  S.)  365. 

Ratification  by  a  legislature  of  a  loan  of 
the  credit  of  a  city  in  aid  of  a  railroad  is 
equivalent  to  original  authority,  and  cures 
any  want  of  authority  that  may  have  existed 
when  the  loan  was  made.  Kenosha  v.  Lam- 
sou,  9  Wall.  {U,  S.)  477.— Followed  in 
Kenosha  v.  Lamson,  19  Law  Ed.  (U.  S.)  730; 
St.  Joseph  Tp.  V.  Rogers,  16  Wall.  (U.  S.) 
644. — National  Bank  v.  Yankton  County,  2 
Dak.  365,  1 01  U.  S.  129. 

It  is  not  necessary  that  a  subsequent  act 
of  the  legislature  validating  an  illegal  sub- 
scription to  stock  should  do  so  in  express 
terms.  It  may  be  by  implication.  Campbell 
v.  Kenosha,  5  Wall.  (U.  S.)  194. 

Where  a  city  is  authorized  to  borrow 
money  and  pledge  its  property  as  secur'.y. 


MUNICIPAL   AND   LOCAL   AID,  -23. 


535 


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to  be  expended  for  municipal  purposes,  but 
it  e  [/cnds  the  money  in  paying  for  stock  in 
a  railway,  a  subsequent  act  of  the  legislature 
which  recites  the  disposition  made  of  the 
inoiiey,  and  authorizes  another  loan,  is  a 
ratification  of  the  disposition  made  uf  the 
money.      Wt'nn  v.  Macon,  21  Gtt.  275. 

When  it  is  omitted  in  the  act  authorizing 
a  county  to  issue  bonds  ut  pay  its  subscrip- 
tion to  a  railroad,  by  whom  tlie  bonds  are 
to  be  signed  and  issued,  a  succeeding  legis- 
lature has  the  power  to  amend  the  act  in 
this  particular,  nunc  pro  tunc,  and  thus  ren- 
der valid  the  action  of  those  who  issued  the 
bonds  without  express  authority.  Alexander 
V.  McDojvell  County  Com'rs,  70  ^V.  Car. 
208. 

Where  a  state  legislature  passes  two  acts, 
one  authorizing  a  city  to  subscribe  a  limited 
amount  to  the  stock  of  a  railroad,  and  the 
other  authorizing  it  to  subscribe  an  unlim- 
ited amount,  and  the  former  act  is  constitu- 
tional, and  the  other  is  not,  and  the  city 
goes  on  and  makes  the  limited  subscription, 
but  acts  in  conformity  with  the  unconstitu- 
tional act  which  authorized  the  unlimited 
subscription,  a  subsequent  act  of  the  legis- 
lature recognizing  the  subscription  validates 
it.  Campbell  v.  Kenosha,  5  Wall.  (U.  S.) 
194. 

A  city  subscribed  for  stock  in  a  railroad, 
the  ordinance  reciting  that  it  was  made  by 
authority  of  existing  law,  and  upon  the  peti- 
tion of  three  fourths  of  the  legal  voters  of 
the  city.  After  the  subscription  was  made, 
but  before  the  bonds  were  issued,  the  su- 
preme court  of  the  state  decided  that  cities 
could  not  make  such  subscriptions.  Subse- 
quently the  legislature  passed  a  law  author- 
izing cities,  to  ratify  such  subscriptions. 
This  was  don^and  the  bonds  in  question 
were  issued,  field:  (i)  tliat  tliis  fully  au- 
thorized the  bonds;  (2)  and  it  appearing 
that  the  council  had  determined  that  the 
requisite  three  fourtiis  had  signed  the  peti- 
tion, and  so  recited  in  the  bonds,  oral  evi- 
dence was  not  admissible  to  show  that  three 
fourths  of  the  legal  voters  had  not  so  peti- 
tioned, in  a  suit  by  innocent  holders.  Rhsell 
v.  Jeffersonville.  24  Hmv.  (U.  S.)  287.— 
Approved  in  Moran  v.  Miami  County 
Com'rs,  2  Black  (U.  S.)  722.  Fdi-lowed 
IN  St.  Joseph  Tp.  7/.  Rogers,  16  Wall.  fU.  S.) 
644:  Venice  ?'.  Murdock,  92  U.  S.  494. 
QlJOTKD  IN  Lewis  v.  Bourbon  County 
Com'rs,  12  Kan.  186;  Hannibal  &  St.  J.  R. 
Co.  7'.  Marion  County,  36  *'o.  294. 


2:{.  Wlit'ii  iiiviilid  HiilKsoriiitioii 
iiiuy  not  be  viiriMl  by  ai  rotruM|ivetive 

net.  — When  a  municipal  corporation  sub- 
mits an  unauthorized  proposition  to  issue 
its  corporate  bonds  in  aid  of  a  railway  com- 
pany, wiiich  is  carried,  and  which  therefore 
imposes  no  liability  on  the  corporation,  it 
is  not  within  the  constitutional  power  of 
the  legislature  to  validate  such  vote  so  as 
t<j  compel  the  issue  of  tlie  bonds  voted. 
Ca/ro  6-  St.  L.  A'.  Co.  v.  Sparta,  77  III.  505. 
Wili-y  V.  Silliman,  62  ///.  ' , 

Where  an  election  oii  .  »e  question  of 
municipal  subscription  to  the  stock  of  a 
private  corporation  is  void,  because  called 
and  ordered  by  persons  not  authorized  to 
call  the  same,  and  consequently  not  a  valid 
authority  for  the  creation  of  corporate  in- 
debtedness or  liability,  the  legislature  is 
powerless,  under  the  constitution,  to  validate 
such  election  by  subsequent  enactment  and 
require  the  issuing  of  bonds  peremptorily. 
Gaddis  V.  Kichland  County,  92  ///.  1 19. 

An  act  professing  and  attempting  to  vali- 
date a  contract  of  a  county  to  make  a  dona- 
tion to  a  railway  company,  such  contract 
being  utterly  void  for  want  of  power  to  enter 
into  the  same,  and  thus  impose  upon  the 
county  an  indebtedness  to  which  it  has 
never  assented,  is  null  and  void,  being  in 
violation  of  the  constitution.  C/ioisser  v. 
People  ex  rel.,  140  ///.  21,  29  A'.  E.  Rep.  546. 

The  Miss.  Act  of  March  16,  1872,  to  vali- 
date municipal  subscriptions  to  the  stock  of 
the  Selma,  Marion  &  Memphis  railroad 
"  not  made  in  violation  of  the  constitution 

of  the  state  "—held,  too  vague  and  uncer- 
tain in  its  expressions  to  validate  an  issue 
of  bonds  under  an  election  held  without 
any  law  to  authorize  it.  Hayes  v.  Mayor, 
etc.,  of  Ifolly  springs,  \\\  U.  S.  120,  5  Sup. 
CI.  Rep.  785. 

The  Miss.  Constitution  of  1869.  art.  12,  § 
14,  provides  that  "the  legislature  shall  not 
authorize  any  rountv,  citv.  or  town  to  be- 
come a  stockholder  in.  or  loan  its  credit  to, 
any  company,  association,  or  corporation," 
imless  tipon  a  two-thirds  vote  of  the  quali- 
fied voters  therein.  On  April  36.  1870.  a 
town  subscribed  to  the  stork  of  a  railroad 
and  issued  bonds  without  anv  vote.  In  1872 
the  legislature  passed  a  Iriw  to  legalize  stirh 
subscriptions  to  thf  road.  Held,  that  the 
bonds  were  illegal  as  issued,  and  that  the 
lecislatiire  had  no  power  to  pass  such  an 
act.  KatsenhertTfr  v.  Aberdeen.  121  U.  S, 
\71.7  Sup.  Ct.  Rep.  947. 


# 


m 


■4; 


536 


MUNICIPAL   AND   LOCAL   AID,  34,  25. 


III.  COHSTITUTIOIfALITT  OF  STATUTES. 

tS4.  Cas«H  decided  in  federal 
eoiirt!*.*— (I )  In  j^'^iHi/u/.— A  statute  au- 
thurizint;  u  cuunty  tu  subscribe  for  stock  in 
a  railroad  upon  a  vote,  and  appointing  five 
connnissioiiers  to  issue  the  bonds,  does  not 
violate  a  provision  in  the  state  constitution 
iliiit  "all  county  officers  whose  election  or 
a|>p(>iiument  is  not  provided  for  by  the  con- 
hiiiiuion,  shall  be  elected  by  the  electors  of 
tlie  respective  counties,  or  appointed  by  the 
board  of  supervisors."  Such  commissioners 
are  not  cour.ty  officers.  Sheboygan  County 
V.  J'arker,  3  /Frf//.  (U.  S.)  93. 

Where  a  county  has  issued  its  bonds  in 
aid  o(  a  railway,  and  a  portion  of  its  ter- 
ritory is  subsequently  taken  to  form  other 
counties,  but  with  a  provision  that  the  tax- 
payers and  property  cut  off  shall  re.  >ain 
li.ihle  as  before,  an  act  which  authorizes  the 
county  court  to  issue  new  bonds  in  a  settle- 
ment with  the  bondholders,  and  to  levy  and 
collect  a  tax  on  the  whole  property  origi- 
nally in  the  county,  is  constitutional.  5/>/- 
ton  V.  Carter  County,  23  Fed.  Rep.  535 ; 
affirmed  in  120  U.  S.  517,7  Sup.  Ct.  Rep. 
6jo. 

The  fact  that  a  railroad  is  owned  by  a 
foreign  corporation,  and  terminates  in  an- 
other slate  at  a  place  froni  which  it  runs 
(mats  to  a  city,  is  no  constitutional  objection 
to  a  grant  of  power  by  the  legislature  to  the 
city  to  subscribe  to  the  stock  of  the  com- 
pany and  issue  its  bonds  in  payment.  Afoul- 
ton  V.  Evansville,  25  Fed.  Rep.  382. 

A  statute  authorizing  the  submission  of 
the  question  of  subscribins;  to  the  stork  of 
a  railroad  "  to  all  the  male  taxpavers  of  the 
roiinty "  is  not  in  conflirt  with  a  provi- 
vision  of  the  state  rnnstitution  requiring 
«nrh  questions  to  he  submitted  "  to  a  vote 
of  the  people."  on  the  ground  that  the 
power  is  thus  Helegated  to  a  class  of  the 
people  instead  of  the  whole  people.  Haiti- 
titore  &-  O.  R.  Co.  v.  Jefferson  County.  29 
Fed.  Refi.  io|;.— Foi.t.owiNn  Slack  ■».  Mays- 
ville  ft  L.  R.  Co.,  13  R.  Mon.  (Kv.)  i. 

(2'\  Laws  Impairing  tlieOhliiration  of  Con- 
tracts.—^\\erf  the  law  authorizes  a  citv  to 
subscribe  for  stock  in  a  railroad,  and  to  issue 
bonds  in  payment,  and  to  levy  a  special  tax 
to  pav  interest  and  the  principal  when  due. 
the  power  thus  given  cannot  be  withdrawn 
»mtil  the  bonds  are  paid,  and  a  subsequent 


*  See  also  f'osi,  ff  3,  subd.  (3). 


law  which  impairs  the  power  to  tax  is  void 
as  impairing  the  obligation  of  the  contract 
with  the  bondholders.  Van  Hoffman  v. 
Quincy,4  Wall.  (U.  S.)  535.— Reviewed  in 
Richmond  v.  Richmond  &  D.  R.  Co.,  21 
Gratt.  (Va.)  604. 

Where  municipal  bonds  issue  for  stock 
in  a  railroad,  a  provision  of  the  law  under 
which  they  issue,  providing  the  manner  of 
levying  and  collecting  taxes  to  pay  the 
same,  enters  into  and  becomes  a  part  of  the 
contract,  and  any  subsequent  law  making 
the  collection  less  effective  impairs  the  ob- 
ligation of  the  contract  within  the  meaning 
of  the  United  States  constitution.  Seibert 
V.  Lewis,  122  I/.  S.  284,  7  Sup.  Ct.  Rep, 
1 190.  Mobile  v.  Watson,  116  I/.  S.  289,  6 
Sup.  Ct.  Rep.  398. 

A  law  passed  after  a  county  has  issued  its 
bonds  for  stock  in  a  railroad  taking  away 
the  power  of  the  county  to  levy  taxes  to  pay 
the  same  is  unconstitutional,  and  the  courts 
by  mandamus  may  require  the  county  to 
levy  a  tax  under  the  law  in  force  when  the 
bonds  issued.  Rrlls  County  Court  v.  United 
States,  105  L'.  S.  733. 

After  municipal  bonds  have  issued  for 
stock  in  a  railroad  under  a  law  provid- 
ing for  a  tax  on  real  estate  only  to  pay  the 
same,  the  legislature  may  amend  the  law  so 
as  to  tax  personal  property  also,  and  the  law 
will  not  impair  llie  "obligation  of  a  con- 
tract" within  the  meaning  of  the  United 
States  constitution.  Ciipe  Girardeau  County 
Court,  v.  Hill,  118  U.  S.  68,  6  Sup.  Ct.  Rep. 

95'. 

It  is  not  within  the  power  o{  a  legislature 
to  repeal  a  city  charter  so  as  to  cancel  bonds 
issued  by  the  city  in  aid  of  a  railway.  Such 
legislation  would  be  in  conflict  with  that 
provision  of  the  fedeial  con^itution  which 
prohibits  laws  impairing  the  obligation  of 
contracts.  Milner  v.  J'ensacola,  2  W^oods 
(U.  S.)  632. 

25.  AInlmiiiH.  —  The  act  of  Dec.  31, 
1868.  authorizing  counties  to  subscribe  to 
the  stock  of  railroads,  and  issue  their  bonds 
in  payment— //<'A/,  constitutional.  Chambers 
County  V.  Cleivs.  21  Wall.  (U.  S.)  317.— 
FnitowiNfi  Ex  parte  Selma  ft  G.  R.  Co., 
45  Ala.  696;  Lorkhart  v.  Troy,  48  Ala.  579; 
Limestone  Conntv  Com'rs  Court  7>.  Rather, 
48  .Ma.  ^},y—Opelika  v.  Danitl,  59  Ala.  211. 

The  act  of  Feb.  8,  1858,  "  to  authorize  the 
corporate  authorities  of  Mobile  to  aid  in 
the  cf>nst ruction  of  a  railroad,  upon  a  vote 
of  the  citizens"  (Sess.  Acts  1857-58,  p.  165), 


MUNICIPAL   AND    LOCAL   AID,  2U-28. 


587 


and  the  act  supplemental  thereto,  approved 
Nov.  29,  1859  (Sess.  Acts  1859-60,  p.  294), 
are  not  violative  of  any  constitutional  pro- 
vision, being  neither  an  illegal  exercise  of 
the  taxing  power,  nor  a  taking  of  private 
property  without  just  compensation.  Gib- 
bons V.  Mobile  &*  G.  A'.  A'.  Co.,  36  ^l/a.  410. 
Following  Stein  v.  Mayor,  etc.,  of  Mobile, 
2.[  AIh.  591. 

Ill  the  Ala.  Act,  approved  Dec.  7,  1866, 
entitled  "An  act  to  authorize  the  city  of 
.Montgomery  to  aid  in  building  and  equip- 
ping the  South  and  North  Alabama  R.  R. 
from  Montgomery  to  Limekiln,"  the  failure 
to  set  out  at  length,  or  in  substance,  the 
propositions  which  had  been  agreed  on  be- 
tween the  directors  of  the  railroad  and  the 
city  council,  and  on  which  a  vote  of  the 
<'iiizens  was  to  be  taken,  under  the  provi- 
sions of  said  act,  to  ascertain  whether  aid 
should  be  extended  by  the  city  to  said  rail- 
road, does  not  aflfect  the  validity  of  the 
act,  there  being  no  constitutiotial  provi- 
sion then  in  force,  and  no  prescribed  mode 
of  legislative  procedure,  which  required 
their  insertion,  and  the  omission  not  caus- 
ing any  doubt  or  uncertainty  in  the  act  it- 
self. IVinler  v.  Mont};omery  City  Council, 
7  Am.  Sf  Eng.  A'.  Cas.  yij,  65  Ala.  403. 

2«.  Cnllloriiia.-  The  act  of  April  25, 
1863,  providing  for  a  subscription  by  the 
city  and  county  of  Sacramento  to  th  :api- 
lal  stock  of  the  Central  Pac.  R.  Co.,  u->(jn  a 
vote  by  the  electors  of  the  county  in  favor 
of  the  proposition,  is  in  its  main  features 
constitutional,  and  authorizes  the  making 
of  the  subscription  and  issuance  of  bonds 
as  therein  directed.  Robinson  v.  Bidwell, 
22  Cal.  379. 

The  proposed  Central  Pac.  railroad,  lead- 
ing from  the  city  and  county  of  Sacra- 
mento to  the  eastern  portion  of  the  state, 
is  so  far  a  public  improvement,  and  suffi- 
ciently for  the  apparent  interest  of  the  city 
and  county,  that  a  law  authorizing  the  mu- 
nicipality to  become  a  stockholder  in  the 
railroad  corporation  is  not  unconstitutional 
as  imposing  a  tax  upon  a  local  community 
for  an  improvement  in  which  it  has  no  pe- 
culiar interest.  Robinson  v.  liidwell,  22 
Cil.  379. 

The  act  of  April  22.  1863.  authorizing 
supervisors  of  the  city  and  county  of  San 
Francisco  to  subscribe  a  certain  sum  to  the 
capital  stock  of  certain  railroads,  and  ex- 
empting the  city  and  county  from  liability 
for  the  debts  of  the  companies  beyond  the 


amount  of  stock  subscribed,  is  constitu- 
tional. French  v.  Tesclumaker,  24  Cal.  518. 
— Explained  in  People  ex  rel.  v.  Coon,  25 
Cal.  635. 

The  act  of  1863,  p.  145,  authorizing  the 
county  of  Placer  to  subscribe  to  the  capital 
stock  of  a  certain  railroad,  and  which  pro- 
vides that  the  taxes  may  be  paid  by  the 
company  to  the  county  from  time  to  time, 
and  go  into  a  railroad  fund  created  by  the 
act,  is  unconstitutional  so  far  as  it  relates 
to  the  school  tax  of  the  county,  as  it  would 
exempt  the  company  from  the  school  tax, 
and  thus  violate  the  provision  of  the  con- 
stitution which  requires  taxes  10  be  equal 
and  uniform.     Crosby  v.  Lyon,  37  Cal.  242. 

The  act  of  April  i,  1870,  authorizing  the 
city  of  Stockton  to  aid  in  the  construction 
of  a  certain  railroad,  is  constitutional ;  and 
a  mandamus  is  the  proper  remedy  to  com- 
pel the  common  council  of  the  city  to  levy 
a  tax  to  pay  interest  on  the  debt  created. 
Stockton  <S»  V.  R.  Co.  v.  Stockton,  41  Cal. 
147,  3  Am.  Ry.  Rep.  102. 

27.  Couiiectiuut.— The  legislature  has 
the  constitutional  power  to  authorize  towns 
to  aid  in  the  construction  of  railroads. 
Douglas  V.  Chatham,  41  Conn.  211. 

28.  Oeoripia.— The  act  of  1855  author- 
izing the  county  of  Dougherty  to  subscribe 
to  the  stock  of  the  Georgia  &  Florida 
railroad,  and  to  issue  bonds  in  payment 
therefor,  is  constitutional  and  valid.  Pinvers 
V.  Dougherty  County  Inferior  Court,  23  Ga. 

65. 

The  Ga.  Act  of  1870  providing  for  sub- 
scription to  stock  of  railroads  by  the  city 
of  Rome,  as  amended,  by  authorizing  a  sub- 
scription to  the  stock  of  a  railroad  espe- 
cially named,  does  not  violate  the  constitu- 
tional provision  that  no  act  shall  pass 
which  refers  to  more  than  one  subject-mat- 
ter,    Rlack  V.  Cohen,  52  Ga.  621. 

Where  it  appears  from  the  whole  of  a 
legislative  act  that  the  great  purpose  and 
object  was  to  create  a  corporation  to  lay 
out  and  construct  a  railroad  between  cer- 
tain points,  any  instrumentality  authorized 
by  the  act  in  aid  of,  to  conduce  to,  and  to 
assist  the  one  great  purpose  of  the  act  is 
not  a  different  subject-matter;  and  the  act 
is  not  unconstitutional  as  containing  more 
than  one  subject-matier.  or  matter  different 
from  that  expressed  in  the  title.  Therefore 
the  inclusion  in  the  act  of  1872  to  incorpo- 
rate the  Gainesville,  J.  &  S.  railroad,  and  for 
other  purposes  therewith  connected,  of  a 


-A 


ir 


538 


MUNICIPAL  AND   LOCAL  AID,  20. 


I   ' 


provision  that  any  corporate  town  or  city 
of  this  state  interested  in  the  construction 
of  said  road  might  subscribe  to  the  capital 
stociv  of  the  company  by  an  election  to  be 
held  for  that  purpose,  and  that  the  sub- 
scription of  the  city  of  Gainesville  to  the 
Gainesville  &  Jefferson  railroad  is  legal- 
ized and  confirmed  as  a  subscription  to  the 
Gainesville,  J.  &  S.  R.  Co.,  did  not  render 
it  unconstitutional,  f/ofie  v.  Mayor,  I'/c:, 
of  Gainesville,  72  Ga.  246.  —  DoUBTlN'i; 
Board  of  Public  Education  v.  Barlow,  49 
Ga.  232.  Quoting  Union  Tp.  v.  Rader,  39 
N.  J.  L.  509.— QuoTKD  IN  Atlanta  v.  Gate 
City  St.  R.  Co.,  80  Ga.  276,  4  S.  E.  Rep. 
269. 

2U.  IIliiioiH.— (I)  In  general.— An  act 
authorizing  trustees  of  schools  to  hold 
elections,  subscribe  stock,  and  issue  bonds 
in  aid  of  a  railroad  is  unconstitutional. 
Trustees  of  Schools  v.  People  ex  rel.,  63  ///. 
299. 

The  act  of  February  18,  1857,  entitled 
"  An  act  authorizing  certain  cities,  counties, 
incorporated  towns  and  townships  to  sub-, 
scribe  to  the  stock  of  certain  railroads,"  is 
void,  no  entry  of  its  passage  appearing  on 
the  senate  journal,  and  municipal  bonds 
issued  thereunder  are  unauthorized.  South 
Ottawa  v.  Perkins,  94  U.  S.  260.— FoM.ow- 
INO  Spangler  v.  Jacoby,  14  III.  297;  Pres- 
cott  w.  Canal  Trustees,  19  III.  324;  Turley 
7.  Logan  County,  17  111.  151;  Schuyler 
County  Sup'rs  v.  People  ex  rel.,  25  111.  181 ; 
People  ex  rel.  w.  Starne.  35  111.  121:  Ryan 
V.  Lynch.  68  111.  160;  Miller  v.  Goodwin,  7 
Chicago  Leg.  News  294. 

Where  a  statute  is  void  for  no  entry  of  its 
passage  being  entered  on  the  senate  journal, 
subsequent  acts  of  the  legislature  amending 
the  law.  and  referring  to  it  as  '-in  force," 
without  directly  attempting  to  validate  it, 
is  not  such  recognition  of  the  law  as  to 
validate  bonds  issued  before  such  amend- 
ments. South  Ottawa  v.  Perkins,  94  U.  S. 
260. 

Neither  the  act  of  Feb.  25,  1867,  incor- 
porating the  Illinois  Southeastern  railway, 
and  authorizing  township  donations  thereto, 
nor  the  amendatory  act,  Feb.  24,  1869,  au- 
thorizing an  issue  of  bonds  for  the  amount 
of  such  donations,  is  in  conflict  with  the 
constitution  of  the  state.  Ronham  v. 
Needles,  103  U.  S.  648.— FOLLOWING  Harter 
V.  Kernochan,  103  U.  S.  562. 

Under  the  act  of  March  26,  1869,  a  cer- 
tain county,  in  December  of  that  year,  or- 


dered a  subscription  to  the  stock  of  a  rail- 
road, the  bonds  in  payment  to  be  issued 
when  a  certain  part  of  the  road  should  be 
open  to  travel.  In  1870  a  new  constitution 
was  adopted  which  took  away  the  power  to 
make  such  subscriptions.  The  road  was 
not  opened  and  the  bonds  delivered  until 
1873,  Held,  that  the  new  constitution  did 
not  aflect  the  bonds,  whether  the  order  of 
1869  be  considered  a  completed  subscrip- 
tion or  only  a  contract  to  deliver  bonds  in 
the  future.  Moultrie  County  v.  Rockiitg- 
ham  Ten-Cent  Sav.  Hank,  92  U.  S.  631.— 
Approvkd  in  Fiates  County  7:  Winters,  112 
U.  S.  325.  Distinguished  in  Buffalo  &  J. 
R.  Co.  V.  Falconer,  103  U.  S.  821.  Foi.- 
H)WED  in  Cass  County  v.  Gillett,  100  U.  S. 
585. 

(2)  Under  constitution  of  1848. — The  legis- 
lature has  the  constitutional  right  to  au- 
thorize counties  and  cities  to  subscribe  to 
the  stock  of  railroads.  Such  a  law  is  not 
in  conflict  with  the  constitution,  art.  3, «:  38. 
providing  that  the  credit  of  the  state  shall 
not  be  given  to  any  individual,  association, 
or  corporation;  nor  art.  13,  §  8,  providing 
that  no  one  shall  be  deprived  of  life,  liberty, 
or  property  but  by  the  judgment  of  his  peers 
and  the  law  of  the  land;  nor  art.  13,  ji  11, 
providing  that  a  citizen's  property  shall  not 
be  applied  to  public  use  without  the  consent 
of  the  legislature  nor  without  just  compen- 
sation. Johnson  v.  Stark  County,  24  ///.  75. 
—Following  Prettyman  ?'.  Tazewell  Coun- 
ty Sup'rs,  19  111.  406.— Followed  in  Per- 
kins V.  Lewis,  24  III.  208. 

The  act  of  Feb.  18,  1857,  purporting  to 
authorize  the  issue  of  certain  municipal 
bonds  for  railroad  stock,  is  of  no  force  or 
effect,  by  reason  of  its  not  appearing  by  the 
legislative  journals  to  have  been  passed  as 
required  by  the  constitution  of  1848.  Post 
V.  Kendall  County  Sup'rs,  12  .,•////.  &*  l\ng, 
K.  Cas.  546,  105  U.  S.  667.— Distinguish- 
ing Dunnovan  v.  Green.  57  III.  63;  Force 
V,  Batavia,  61  III.  99;  Illinois  C.  R.  Co.  v. 
Wren,  43  III.  77 :  Bedard  v.  Hall.  44  III.  9« ; 
Grob  V.  Cushman,  45  III.  1 19;  People  ex  rel 
V.  De  Wolf,  62  III.  253;  Binz  v.  Weber,  81 
111.  288.  Following  Ryan  v.  Lynch,  68  III 
160;  Miller  w.  Goodwin,  70  III.  659. 

An  act  entitled  "  An  act  to  amend  the 
charter  of  the  Cairo  &  St.  Louis  R.  Co.," 
which,  among  other  things,  validated  a  prior 
municipal  election  to  vote  bonds  to  the 
stock  of  the  road,  did  not  violate  the  111. 
Constitution  of   1848.  art  3,  §  23,  providing 


MUNICIPAL   AND   LOCAL   AID,  21). 


539 


that  "  no  private  or  local  law  *  '■■  ♦  shall 
embrace  more  than  one  subject,  which  shall 
be  expressed  in  the  title."  Joneshoro  v. 
Cairo  &•  St.  L.  A\  Co.,  1 5  .lift.  &^  /ui^.  A\ 
Ciis.  615,  MO  I/.  S.  192,  4  Sup.  Ct.  Kcp.  67. 
—Following  Johnson  v.  People,  83  III. 
436;  Montclairv.  Kamsdell,  107  U.  S.  147. 

The  act  of  April  i6,-  18C9,  making  it  the 
duty  of  the  auditor  of  public  accounts  to 
ascertain  the  amount  of  interest  that  will 
accrue  on  town  and  other  bonds  registered 
in  his  oflice,  and  certify  the  amount  to  the 
county  clerk,  to  be  by  him  extended  on  the 
collector's  books,  and  collected  in  the  man- 
ner state  revenue  is  collected,  is  not  viola- 
tive of  section  5,  art.  9,  of  the  constitution 
of  1848.  Dumiovan  v.  Green,  57  //V.  63. — 
DiSTlNGULSHKi)  IN  Post  V.  Kendall  County 
Sup'rs,  105  U.  S.  667. 

That  portion  of  the  act  of  Jan.  23,  1869, 
amendatory  of  the  charter  of  the  Decatur  & 
•  E.  St.  L.  R.  Co.  which  permits  a  portion  of 
each  of  several  counties  to  give  its  credit 
and  aid  to  the  corporation  is  not  in  viola- 
tion of  that  clause  of  the  constitution  of 
1848  which  forbids  the  credit  of  the  state  to 
be  given  to,  or  in  aid  of,  any  individual, 
association,  or  corporation.  Mudison  County 
Court  v.  People  ex  rel.,  58  ///.  456,  11  Am. 
Jiy.  AVp.  66. 

The  constitution  of  1848,  art.  9,  §  5,  giv- 
ing the  legislature  power  to  vest  corporate 
authorities  with  the  right  to  assess  and  col- 
lect taxes  for  corporate  purposes — /le/d,  not 
to  extend  to  an  act  attempting  to  confer  on 
parts  of  counties  the  power  to  subscribe 
to  the  stock  of  railroads.  Madison  County 
Court  V.  People  ex  rel. ,  58  ///.  456,  1 1  Am. 
Jiy.  Rep.  66. 

A  statute  which  authorizes  the  trustees 
of  schools  of  a  township,  in  a  county  not 
under  township  organization,  to  order  an 
election  for  the  purpose  of  voting  upon  a 
subscription  or  donation  to  a  railroad,  and 
to  make  such  subscription,  and  issue  bonds, 
and  to  levy  and  collect  taxes  for  the  pur- 
pose of  oaying  them,  is  in  violation  of  the 
constitution  of  1848,  art.  9,  §?  5,  7.  People 
ex  rel.  v.  Dupuyt,  71  Ill.6$\. 

The  act  of  March  17,  1874,  and  that  of 
May  29,  1877,  amendatory  of  the  former, 
which  provide  that  the  liability  of  all  coun- 
ties, cities,  townships,  towns,  or  precincts 
which  have  voted  aid.  donations,  or  sub- 
scriptions to  the  capital  stock  of  any  rail- 
road should  cease  and  determine  upon  anrl 
after  July  1.  1880,  and  that  im  bonds  should 


be  issued,  or  slock  subscribed,  to  any  rail- 
road after  that  date  upon  account  of,  or 
upon  tlie  authority  of,  any  previous  vote, 
arc  not  open  to  the  objection  that  they  im- 
pair the  obligation  of  contracts.  People 
ex  rel,  v.  Granville.  104  ///.  285. 

.■\n  act  authorizing  a  township  to  vote  to 
subscribe  for  stock  of  a  railroad,  and  to 
issue  bonds  in  payment  of  the  same,  is 
allowable  under  the  constitution  of  1848. 
Marshall  \.  Silliman,  61  ///.  218. 

Where  a  charter  to  construct  and  operate 
a  railroad  confers  power  on  counties,  cities, 
etc.,  to  subscribe  to  the  capital  stock  of  the 
company  and  issue  bonds  for  the  same, 
such  provision  is  germane  to  such  charter, 
and  does  not  constitute  a  different  subject 
from  that  of  power  to  construct  the  road,  it 
being  but  a  means  adapted  to  that  end. 
Such  a  private  law  is  not  in  violation  of  the 
constitutional  provision  in  section  23,  ar- 
ticle 3,  of  the  constitution  of  1848,  prohibit- 
ing any  local  or  private  law  from  contain- 
ing more  than  one  subject,  and  requiring 
that  to  be  expressed  in  its  title.  Virden  v. 
Allan,  107  ///.  505. 

Section  20  of  the  act  of  March  10,  1869, 
entitled  "  An  act  to  incorporate  the  St. 
Louis  &  Southeastern  R.  Co.,"  which  au- 
thorized certain  counties  through  which 
the  road  was  located  to  subscribe  to  the 
capital  stock  of  the  company  all  or  any  part 
of  any  sums  theretofore  voted  by  the  legal 
voters  to  another  railway  company,  is  void, 
as  being  in  violation  of  section  23,  article  3, 
of  the  constitution  of  1848,  which  provided 
that  "no  private  or  local  law  which  may  be 
passed  ♦  *  *  shall  embrace  more  than  one 
subject,  and  that  shall  be  expressed  in  the 
title."  People  ex  rel.  v.  Hamill,  134  ///. 
666,  17  A^.  E.  Rep.  799,  29  A'.  E.  Rep. 
2S0. 

Thai  was  a  private  or  local  act,  and  al- 
though the  subscribing  by  counties,  etc.,  to 
the  capital  stock  of  the  corporation  thereby 
created  is  germane  to  the  object  expressed 
in  the  title,  the  diversion  to  that  corpora- 
tion of  a  subscription  theretofore  author- 
ized by  a  vote  of  the  people  to  be  made  to 
a  different  corporation  is  a  wholly  diiTerent 
thing.  That,  it  is  to  be  presumed,  would 
affect  adversely  the  corporation  from  which 
the  subscription  voted  was  sought  to  be 
diverted,  and  was  therefore  clearly  not 
germane  to  the  title  of  the  act.  People  ex 
rel.  v.  Hamill.  134  ///.  666,  \T  N.  E.  Rep. 
799,  29  N.  E.  Rep.  280. 


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540 


MUNICIPAL  AND   LOCAL  AID,  30. 31. 


1*1 


30.  Indiana.— The  Indiana  statute  (3 
Ind.  St.  389)  autliorizingaid  to  theconstruc- 
lion  of  railroads  by  counties  and  townships 
taking  stock  in,  and  making  donations  to, 
railroad  companies  is  constitutional.  Petty 
\.  Myers,  49  Ind.  I.  Brocivw  v.  Gibson 
County  Com'rs,  3  Aim.  &*  Et^.  A'.  Cas.  573, 

7  5  /«"'■  543- 

The  act  of  May  12,  1869,  authorizing 
counties  and  townships  to  aid  in  tiie  con- 
struction of  railroads  by  taking  stock  there- 
in, contemplates  a  payment  for  the  stock  at 
the  time  of  subscription,  and  not  the  crea- 
tion of  a  debt  therefor ;  and  is  therefore  con- 
stitutional. John\, Cincinnati, K.^*  Ft.  M'. 
K.  Co.,  35  Ind.  539,  5  Am.  Ry.  Kep.  41.— 
Following  Lafayette,  M.  &  B.  R.  Co.  v. 
Geiger,  34  Ind.  185. —  Crawford  County 
Com'rs  V.  Louisville,  N.  A.  &•  St.  L.  A.  L. 
K.  Co.,  39  Ind.  192,  10  Am.  Ky.  Kep.  416. 

The  act  of  January  30, 1873,  supplemental 
to  the  act  of  1869,  authorizing  aid  to  rail- 
road companies,  is  not  unconstitutional  on 
the  ground  that  it  divests  rights  vested  in 
railroad  companies,  there  being  no  rights  to 
be  divested.  San  key  v.  Terre  Haute  &*  S. 
IV.  A'.  Co.,  42  Ind.  402. 

liy  the  act  approved  December  17,  1872, 
railroad  companies  which  had  received  aid 
from  counties  or  townships  by  taxation 
were  required  to  issue  stock  to  the  parties 
who  had  paid  the  taxes  to  the  amount  by 
tliL-m  respectively  paid;  and  the  act  pro- 
vided that  the  issue  of  stock  to  a  taxpayer 
should  operate  to  cancel  pro  tanto  the  stock 
hL-li)  by  any  county  or  township  under  the 
provisions  of  the  statute  of  May  12,  1869. 
Where,  pursuant  to  the  act  of  May  12,  1869, 
tiic  board  of  commissioners  of  a  certain 
county  had  levied  a  tax  in  aid  of  a  certain 
railroad  company,  and  had  subscribed  and, 
with  the  proceeds  of  the  tax,  had  paid  for  a 
certain  number  of  shares  of  the  capital 
stock  of  said  company,  and  certificates  of 
stock  therefor  had  been  issued  to  the 
county — field,  that  the  act  of  December 
17.  1872,  so  far  as  it  provides  for  divest- 
ing counties  of  stock  already  subscribed 
and  paid  for  at  the  time  of  the  passage  of 
the  act,  is  hot  unconstitutiona't.  Lucas  v. 
Tippecanoe  Count v  Com'rs,  44  Ind.  524. 

31.  Iowa.*— Under  the  constitution  the 
legislature  possesses  the  power  to  confer 
upon  counties  authority  to  issue  their  bonds 
for  a  subscription  to  the  stock  of  a  railway 

*See  also  further  Iowa  decisions /oj/,  8fl8. 


running  through  the  county.  But  unless 
the  legislature  does  confer  such  authority 
the  counties  do  not  possess  it.  Clapp  v. 
Cedar  County,  5  Iowa  15. — Followed  in 
Gelpcke  v.  Dubuque,  i  Wall,  (U.  S.)  175. 
Reviewed  in  Stokes  v.  Scott  County,  10 
Iowa  166, 

A  provision  in  the  charter  of  a  city  au- 
thorizing it  "  to  borrow  money  for  any  ob- 
ject in  its  discretion  "  authorizes  it  to  bor- 
row money  to  aid  in  the  construction  of 
railroads,  under  the  act  of  Jan.  25,  1855. 
Myer  v.  Muscatine,  i  Wall.  (U.  S.)  384.— 
Not  followed  in  Leavenworth  County 
Com'rs  V.  Miller,  7  Kan.  479.  Refekkkd 
TO  in  Davidson  v.  Ramsey  County  Comrs, 
18  Minn.  482  (Gil.  432). 

The  act  of  January  29,  1857,  entitled  "  An 
act  legalizing  the  issue  of  county,  city,  and 
town  corporation  bonds  in  the  counties  of 
Lee  and  Davis,"  is  not  in  violation  of  section 
6,  art.  I,  of  the  constitution  of  the  state. 
McMillen  v.  Lee  County  Judge,  6  Iowa  391. 

The  decisions  of  the  supreme  court  of 
Iowa  made  prior  to  1859  sustaining  the  right 
of  the  legislature  to  authorize  municipal 
corporations  to  subscribe  to  the  stock  of 
railroads  extending  beyond  the  city  or 
county,  and  to  issue  bonds,  approved  by  the 
supreme  court  of  the  United  States,  and 
followed  as  to  all  bonds  issued  and  put  upon 
the  market  during  the  time  that  those  de- 
cisions were  in  force.  The  fact  that  the 
supreme  court  of  the  state  has  since  denied 
such  power  cannot  atlect  past  transactions. 
Gelpcke  v.  Dubuque,  I  Wall.  {U.  S.)  175.— 
Disapi>rovin(J  State  ex  rel.  v.  Wapello 
County,  13  Iowa  390.  Following  Du- 
buque County  V.  Dubu  jue  &  P.  R.  Co.,  4 
Greene  (Iowa)  i  ;  State  v.  Bissell,  4  Greene 
328 ;  Clapp  V,  Cedar  County,  5  Iowa  1 5  ; 
Ri.ig  V.  {ohnson  C'junty,  6  Iowa  265 ;  Mc- 
Millen V.  Boyles.  6  Iowa  304;  Games  v. 
Robb,  8  Iowa  193 ;  State  ex  rel.  v.  Johnson 
County,  10  Iowa  157;  Stokes  7/.  Scott  County, 
10  Iowa  >66.  —  Criticised  in  McClure  v. 
Owen,  26  Iowa  243.  Quoted  in  King  %>. 
Wilson,  I  Dill.  (U.  S.)  555.  Reviewed  in 
Chamberlain  v.  Burlington,  19  Iowa  395, 

The  act  of  1868,  ch.  48,  entitled  "  An  act 
to  enable  townships  and  incorporated  towos 
and  cities  to  aid  in  the  construction  of  rail- 
roads," is  not  a  valid  or  legitimate  exercise 
of  the  taxing  power.  The  incidental  benefit 
which  may  result  to  the  community  from 
the  building  of  a  railroad  owned  and  oper- 
ated by  a  private  corporation  is  not  sufli- 


it 


i 


MUNICIPAL  AND   LOCAL  AID,  32. 


541 


cient  to  authorize  such  tax.  Hamon  v.  /  Vr- 
non,  27  Imua  28.— Disapproving  Dubuque 
County  V.  Dubuque  &  P.  R.  Co.,  4  Greene 
(Iowa)  I.  Following  State  ex  rel.  v.  Wa- 
pello County.  13  Iowa  388;  McClure  v. 
Owen,  26  Iowa  243.  Not  followinc;  Com. 
ex  rel.  v.  Allegheny  County  Com'rs,  32  Pa. 
St.  218;  Com.  ex  rel.  v.  Pittsburgh,  34  Pa.  St. 
496;  Sharpless  v.  Mayor,  etc..  of  Pliila.,  21 
Pa.  3t.  147 ;  Gooddin  -v.  Crump,  8  Leigh  (Va.) 
120;  Bridgeport  v.  Housatonic  R.  Co.,  15 
Conn.  475;  Nichol  V.  Nashville,  9  Humph. 
(Tenn.)  252;  Talbot  v.  Dent,  9  B.  Mon. 
(Ky.)  526. — Disapproved  in  Leavenworth 
County  Com'rs  v.  Miller,  7  Kan.  479;  Hal- 
lenbeck  v.  Hahn,  2  Neb.  377.  Not  fol- 
lowed IN  Stewart  v.  Polk  County  Sup'rs, 
30  Iowa  9.  Reviewed  in  King?/.  Wilson, 
I  Dill.  (U.  S.)  555. 

The  act  of  1870,  ch.  102,  providing  for 
the  taxation  of  townships  and  incorporated 
towns  and  cities  to  aid  in  the  construction 
of  railroads,  is  not  in  conflict  with  the  state 
constitution.  The  collection  of  taxes  under 
the  statute  is  not  a  taking  of  property  for 
private  use,  as  the  construction  of  railroads 
is  essentially  a  public  use.  Stewart  v.  Polk 
County  Sup'rs,  30  Iowa  9.— Not  following 
Hanson  v.  Vernon,  27  Iowa  28.  -Approvkd 
IN  Leavenworth  County  Com'rs  v.  Miller, 
7  Kan.  479.  Followed  in  McGregor  & 
S.  C.  R.  Co.  V.  Birdsall,  30  Iowa  255  ;  Ren- 
wick  V.  Davenport  &  N.  W.  R.  Co.,  47 
Iowa  511.  Quoted  in  King  v.  Wilson,  i 
Dill.  (U.  S.)  555.  Referred  to  in  Da- 
vidson V.  Ramsey  County  Com'rs,  18  Minn. 
482  (Gil.  432). 

Iowa  Act  of  1874,  ch.  123,  authorizing 
cities,  townships,  and  incorporated  towns 
to  vote  aid  to  railroads,  is  constitutional. 
(Beck,  J.,  dissenting.)  Reniuick  v.  Daveit' 
port  (S-  N.  IV.  A'.  Co.,  47  /o7ua  511.— Fol- 
lowing Stewart  v.  Polk  County  Sup'rs,  30 
Iowa  9.— Followed  in  Snell  v.  Leonard, 
55  Iowa  553. 

Chapter  123,  Laws  of  1876,  authorizing  the 
voting  of  taxes  to  aid  in  the  construction  of 
railroads,  is  constitutional.  Sfu//  v.  Leon- 
ard,  55  Iowa  553,  8  A^.  W.  Rep.  425.— Fol- 
lowing Renwick  v.  Davenport  &  N.  W. 
R.  Co..  47  Iowa  $i\.  —  Chuiigo,  M.  &*  St.  P. 
K.  Co.  V.  Shea,  67  Iowa  728.  25  N.  W.  Rep. 
901. 

32.  Kansas. — Chapter  13  of  the  Laws 
of  1865,  and  other  acts  passed  by  the  legis- 
lature authorizing  counties  and  cities  to 
subscribe  for  stock  in  railroad  companies, 


and  issue  ixjnds  in  payment  of  the  stock  so 
subscribed  for,  are  constitutional  and  valid. 
I^aviiiworth  County  Com'rs  v.  Milkr,  7 
Kan.  X19.  '  •''"'•  ^O'-  ^*'''A  259.  — Followed 
IN  State  ex  rel.  v.  NemahaCounty  Com'rs,  7 
Kan.  542  ;  Mori  is  v.  Morris  County  Com'rs,  7 
Kan.  576.  yuoTiD  in  Hallenbeckt'.  Hahn, 
2  Neb.  yj-j.— State  t  x  rel.  v.  Nemaha  County 
Com'rs,  7  Kan.  542,  1  Am,  Ry.  Rep.  319.— 
Followed  in  Morris  v.  Morris  County 
Com'rs,  7  Kan.  576. — Morris  v.  .Morris 
County  Com'rs,  7  Kan.  576.— Following 
Leavenworth  County  Com'rs  v.  Miller,  7 
Kan.  479 ;  State  ex  rel.  v.  Nemaha  County 
Com'rs,  7  Kan.  542. 

The  aid  given  to  a  railroad  company  is 
not  strictly  for  a  private  purpose,  nor  wholly 
for  a  public  purpose,  though  the  object 
intended  by  the  legislature  is  a  public  pur- 
pose. Leavenworth  County  Com'rs  v.  Miller. 
7  Kan.  479,  I  Am.  Ry.  Rep.  259. 

The  government  may  accomplish  a  pub- 
lic purpose  through  the  means  of  a  private 
agency,  a  private  individual  or  individuals, 
or  a  private  corporation.  It  is  the  ultimate 
object  to  be  obtained  which  must  determine 
whether  a  thing  is  a  public  or  a  private  pur- 
pose. The  ultimate  object  of  the  govern- 
ment in  granting  municipal  aid  to  railroads 
is  to  increase  the  facilities  for  travel  and 
transportation  from  one  part  of  the  country 
to  the  other,  which  object  is,  in  its  nature, 
a  public  purpose.  Leavenworth  County 
Com'rs  V.  Miller,  7  Kan,  479,  i  Am.  Ry.  Rep. 
259. 

The  fact  that  a  portion  of  such  an  act, 
providing  for  a  certain  disposition  of  the 
taxes  levied  upon  the  railroad  property,  is 
unconstitutional  does  not  invalidate  the 
other  portions  of  the  statute,  or  render  the 
entire  proceedings  a  nullity,  or  prevent  the 
county  commissioners  from  subscribing  to 
the  stock  and  issuing  the  bonds.  Turner 
V.  Woodson  County  Com'rs  ,  1 2  Am.  &^  Kng. 
R.  Cas.  600.  27  Kan.  314. 

The  following  proviso  contained  in  section 
i,ch.  128,  Laws  of  1887,  is  not  unconstitu- 
tional or  void  :  "  Provided,  That  no  bonds 
except  for  the  erection  and  furnishing  of 
school-houses  shall  be  voted  for  and  issued 
by  any  county  or  township,  within  one  year 
after  the  organization  of  such  new  county, 
under  the  provisions  of  this  act."  Under 
this  proviso  a  newly  organized  county  can- 
not legally  vote  for  and  issue  bonds  in  aid 
of  a  railroad  company  within  one  year  after 
the  county  has  been   organized.    State  ex 


.  4. 


IP 


I    1 


-1 


■it; 


642 


MUNICIPAL   AND   LOCAL   AID,  33. 


!■ !  It' 


/•<•/.  V.  Haskell  County  Coni'rs,  40  h'an.  65,  K) 
Pac.  Rep.  362. 

The  act  of  1873,  ch.  51,  authorizing  a  cer- 
tain townsiiipto  take  stock  in  a  manufactur- 
ing company,  and  to  issue  its  bonds  in  pay- 
ment, the  declared  purpose  of  the  company 
being  to  ptirciiase  needed  lands andconstruct 
and  maintain  a  dam  across  a  river,  and  build 
and  maintain  mills  for  manufacturing  pur- 
poses, is  unconstitutional  as  taking  property 
for  private  purposes.  Central  liranch  U. 
J'.  A'.  Co.  V.  Smith,  23  h'an.  745. 

3;i.  Kviitiivky.— The  legislature  lias 
constitutional  authority  to  grant  to  munic- 
ipal corporations  power  to  tax  their  prop- 
erty for  the  construction  of  works  of  internal 
improvement,  for  facility  of  access  to  and 
transportation  to  and  from  the  town  or 
cii\'.  Talbot  v.  Dent.  9  B.  Mon.  {Ay.)  526. 
—  FtuxowiNG  Bridgeport  w.  Housatonic  R. 
Co.,  15  Conn.  475.— Not  followed  in 
Hanson  v.  Vernon.  27  Iowa  28.  Reviewed 
IN  Cincinnati,  W.  &  Z.  R.  Co.  v.  Clinton 
County  Com'rs,  i  Ohio  St.  77. 

The  provision  of  an  amended  statute  au- 
thorizing a  tax  for  railroad  stock  is  not  a 
violation  of  the  rights  of  the  taxpayers,  but 
to.  their  advantage.  Talbot  v.  Dent,  9  D. 
Mon.  (Ay.)  526. 

An  act  of  the  legislature  authorizing 
counties  and  other  municipalities  to  sub- 
scribe to  the  stock  of  railraods,  upon  a 
majority  vote  in  favor  of  the  subscription,  is 
constitutional  and  valid ;  hence  an  act  author- 
izing a  county  to  compromise  with  holders 
of  bonds  issued  in  paymentof  such  subscrip- 
tion is  valid.  Brown  v.  Tinsley,  (A)'.)  21  S.  W. 
Rip.  535.— Following  Slack  J/.  MaysvilleA 
L.  R.  Co.,  13  B.  Mon.  (Ky.)  i. 

The  power  of  a  county  court  to  make  a 
subscription  of  stock  for  the  county,  and  to 
levy  taxes  to  meet  it,  is  conferred  by  express 
i<rant,  to  which  the  legislature  may  annex 
any  condition  not  repugnant  to  the  consti- 
tution. The  legislature  therefore  has  the 
power  to  require,  as  a  condition  precedent  to 
the  validity  of  a  subscription  of  stock  by  a 
county  court  for  railroad  purposes,  not  only 
a  majority  of  all  votes  cast  in  the  county, 
but  also  a  majority  of  those  residing  out- 
side the  limits  of  a  certain  town  in  the 
county.  Such  a  statute  does  not  confer  a 
personal  privilege  at  all,  much  less  an  ex- 
clusive privilege,  in  the  meaning  of  the 
constitution.  And  the  provision  of  the 
statute  construed  in  this  case  that  "  no  tax 
shall  be  imposed  for  said  purpose  upon  the 


property<jf  those  residing  outside  said  [town] 
limits  unless  the  votes  of  a  majority  of  the 
voters  thus  residing  outside  said  .imits  shall 
be  cast  in  favor  of  such  subscription  and 
tax  "  was  not  intended  to  cast  any  burden 
at  all  upon  those  within  the  limits  of  the 
town  in  the  event  a  majority  of  those  outside 
the  limits  should  vote  against  the  proposi- 
tion. Kentucky  Union  R.  Co.  v.  Bourbon 
County,  85  A>."98,  2  S.  H'.  Rep.eSy.—Qvirr- 
INii  Phillips  7'.  Covington  &  C.  Bridge  Co., 
2  Mete.  (Ky.)  219. 

An  act  of  the  legislature  required  a  county 
court  to  subscribe  for  a  certain  number  of 
shares  of  capital  stock  of  a  railroad  com- 
pany in  behalf  of  a  certain  precinct  in  the 
county,  and  to  issue  in  payment  therefor 
the  coupon  bonds  of  that  precinct.  Jlelil, 
that  the  act  was  constitutional,  and  that  no 
case  for  an  injunction  against  the  subscrip- 
tion was  made  out.  Allison  v.  Lou/'sT/l/e, 
N.  C.  &*  W.  a:  Co..  10  ///«//  (A>.)  1.— Dis- 
TINGUI.SHING  Allison  «/.  Louisville,  H.  C.  & 
W.  R.  Co.,  9  Bush  247. 

The  Cumberland  &  Ohio  R.  Co.,  in  the 
exercise  of  a  right  conferred  upon  it  by  its 
charter,  applied  to  the  county  court  of  Bar- 
ren county  April  5,  1872,  to  submit  to  the 
qualified  voters  of  said  county  a  proposition 
for  the  subscription  by  the  county  for  three 
hundred  and  fifty  thousand  dollars  of  the 
capital  stock  of  the  railroad  company.  The 
court  made  the  order  as  requested,  and 
the  proposition  was  voted  on  May  4,  1 872, 
and  a  majority  of  the  qualified  voters  of  the 
county  voting  at  the  election  pronounced  in 
favor  of  it.  The  county  court  made  an 
order  Jan.  3,  i873,directing  the  judge  thereof 
upon  a  given  contingency  to  subscribe  for 
and  on  behalf  of  the  county  for  the  amount 
of  capital  stock  stated.  The  legislature 
passed  an  act  March  11,  1873,  before  the 
subscription  was  actually  made,  amending 
the  charter  of  the  railroad  company  so  as  to 
impose  new  and  additional  conditions  upon 
the  issue  and  delivery  of  the  bonds  of  the 
county  to  the  company.  This  amendment 
was  rejected  by  the  company  July  10,  1873. 
Neltl,  that  the  act  of  March  1 1, 1873,  amend- 
ing the  charter  of  the  company  is  constitu- 
tional and  binding  on  the  company,  and  that 
the  company  is  not  entitled  to  demand  or 
receive  the  bonds  of  the  county  except  upon 
the  conditions  imposed  by  the  amendatory 
act  aforesaid.  Cumberlami  &*  O.  K.  A'.  Co. 
V.  Barren  County  Court,  10  Bush  (Ky.) 
604. 


MUNICIPAL   AND   LOCAL   AID,  34-»8. 


543 


:I4.  Luiiixiaiia.— The  act  of  March  i3, 
1853,"  providing  for  the  subscription  by  the 
parishes  and  nuinicipal  corporations  of  the 
state  to  the  stock  of  corporations  undertake 
ing  works  of  internal  improvement,  and  for 
the  payment  and  disposal  of  the  stock  so 
subscribed,"  is  constitutional.  Police  Jury 
V.  McDonogh,  8  La.  Ann.  341.  — Quoted 
IN  Co- ten  V.  Leon  County  Com'rs.  6  Fla. 
610. 

The  restrictions  imposed  by  articles  108 
and  109  of  the  constitution  of  1852  upon  the 
aid  which  the  state  may  grant  to  corpora- 
tions for  internal  improvements  are  no  limi- 
tation upon  the  aid  wiiicii  the  legislature 
may  authorize  the  police  juries,  etc.,  to 
grant.  Police  Jury  v.  McDonogh,  8  La. 
Ann.  341. 

The  act  of  March  6,  1876,  to  give  effect  to 
"the  premium  bond  plan  "of  funding  or 
adjusting  the  public  debt  of  the  city  of  New 
Orleans,  is  unconstitutional  so  far  as  it  at- 
tempts to  restrict  the  taxing  power  of  the 
city  so  as  to  impair  the  obligation  of  its 
contracts  with  the  holders  of  its  bonds  issued 
for  railroad  stock,  or  for  other  purposes. 
IVolJf  V.  Ne^u  Orleans,  12  Atn.  <S-  Kng.  A'. 
Ciis.  625,  103  I/.  S.  358.— FoLi.owiNc;  Von 
HotTman  v.  Quincy,  4  Wall.  (U.  S.)  535. 

After  the  state  had  issued  certain  bonds  in 
aid  of  a  railroad  the  legislature  created  a 
"  Board  of  Liquidation  "  and  authorized  it 
to  fund  all  outstanding  valid  claims  against 
the  state.  A  subsequent  act  declared  the 
bonds  void  and  forbade  the  board  to  fund 
them.  //<•/(/,  that  the  act  withdrew  from  the 
board  all  power  to  fund  the  bonds;  that  it 
did  n(jt  impair  the  obligation  of  any  con- 
tract, as  there  had  been  no  acceptance  of 
the  proposition  to  fund,  and  no  considera- 
tion passed.  Dtirkee  v.  Board  of  Liquida- 
tion. 3  Am.&*  Eng.  R.Cas.  135, 103  U.  S.  646. 

:<5.  Maine.  —  Special  Laws  1850,  ch. 
y).  authorizing  certain  cities  and  towns  to 
grant  aid  for  the  construction  of  a  certain 
railroad,  is  constitutional.  Augusta  Bank  v. 
Augusta,  49  Me.  507. 

Taxation  in  aid  of  railroads  is  taxation  for 
a  public  purpose,  and  on  this  ground  alone 
its  constitutionality  is  sustainable.  Dyar 
V.  Farmington,  70  Me,  515, 

30.  Mary  land.— The  object  of  the  act 
of  1872,  ch.  245,  was  a  loan  of  the  credit  of 
the  county,  and  within  and  subject  to  the 
constitutional  restriction  (Const,  art.  3,  § 
54).  Baltimore  <S*  D.  P.  R.  Co.  v.  Pum- 
pkrey,  74  Md.  86,  3i  Atl,  Rep,  559. 


The  act  was  not  duly  published  in  the 
newspapers  of  a  county  "  for  two  months 
before  the  next  election  for  members  of  the 
house  of  delegates."  Baltimore  &*  I).  P. 
R.  Co.  V.  Pumphrey,  74  Md.  86,  21  Atl.  Rep. 

559- 

37.  MicliiKau.— The  statutes  authoriz- 
ing municipal  aid  to  railroads  are  not  in 
conflict  with  the  constitution.  Talcott  v. 
Pine  Grove  Tp.,  1  Flipp.  (U.  S.)  120.— De- 
NVINO  People  V.  Salem  Tp.,  20  Mich.  452. 

The  act  of  March  22,  1869,  authorizing 
cities,  villages,  and  townships  to  pledge 
their  aid  to  railroads,  by  loan  or  donation, 
is  not  in  conflict  with  a  provision  in  the 
state  constitution  that  no  person  shall  be 
deprived  of  "  life,  liberty,  or  property  with- 
out due  process  of  law;"  nor  in  conflict 
with  a  provision  that  "  the  credit  of  the 
state  shall  not  be  granted  to  or  in  aid  of 
any  person,  association,  or  corporation." 
Pine  Gro7>e  Tp.  v.  Talcott,  19  Wall.  (U.  S.) 
666. 

Nor  is  it  in  conflict  with  the  provision 
forbidding  the  state  from  subscribing  to  the 
stock  of  any  corporati<jn,  or  from  being  in- 
terested in  any  work  of  internal  improve- 
ment. Taylor  V.  Ypsiliinti,\z  Am.  &»  ling. 
R.  Ciis.  549,  105  U.  S.  60.— Foi-LOWEi)  IN 
Young  V.  Clarendon  Tp.,  29  Am.  &  Eng. 
Corp.  Cas.  115,  132  U.  S.  340,  10  Sup.  Ct. 
Rep.  107. 

The  legislature  has  no  authority  to  pass 
statutes  authorizing  townships  or  cities  to 
pledge  their  credit  in  aid  of  the  construc- 
tion of  a  railroad ;  such  legislation  is  void 
both  upon  the  fundamental  principles  un- 
derlying the  taxing  power,  and  also  upon 
specific  provisions  of  our  state  constitution. 
The  fact  that  a  city  has  received  in  ex- 
change for  void  bonds  issued  under  such 
a"  enabling  act  the  bonds  of  the  railroad 
company  in  whose  favor  the  city  bonds 
were  issued  does  not  make  valid  the  unau- 
thorized obligations  of  the  city.  A  munic- 
ipal corporation  has  no  general  authority 
to  exchange  promises  with  other  corpora- 
tions or  persons;  its  contract,  to  be  valid, 
must  be  within  the  scope  of  the  authority 
conferred  upon  it  by  law,  and  for  municipal 
purposes.  Thomas  v.  Port  Huron,  rj  Mich. 
320. 

38.  Minnesota.  —  The  amendment  to 
section  2,  article  9,  of  the  constitution 
adopted  November  6,  i860,  providing  that 
"  no  law  levying  a  tax  or  making  other  pro- 
visions for  the  payment  of  interest  or  prin- 


il      : 


644 


MUNICIPAL   AND   LOCAL  AID,  39, 40. 


if!    , 


|l      H 


cipal  of  the  bonds  denominated  '  Minnesota 
state  railroad  bonds,'  shall  take  etTect  or 
be  in  f(jrce  until  such  law  shall  have  been 
submitted  to  a  vote  of  the  people  of  the 
state  and  adopted  by  a  majority  of  the 
electors  of  the  state  voting;  upon  the  same," 
impairs  the  obligation  of  the  contracts 
therein  referred  to,  and  is,  consequently, 
repugnant  to  the  clause  in  the  constitution 
of  the  United  States  that  no  state  shall 
puss  any  law  impairing  the  obligation  of 
contracts,  and  it  is  tlierefore  void.  S/n/e 
ex  rel.  V.  Yottiig,  2  /////.  &*  Kni;.  A'.  Cas.  348, 
29  A/i'mi.  474,  9  ;V.  H'.  Rep.  737. 

The  act  of  the  legislature  entitled  "  An 
act  providing  for  the  adjustment  of  the 
Minnesota  state  railroad  bonds,"  approved 
March  21,  1881,  delegates  to  judges  therein 
mentioned  legislative  power — that  is,  power 
by  the  decision  they  are  called  on  to  make 
to  determine  which  of  two  sections,  section 
4  or  section  5,  of  this  act  sliall  take  etTect 
and  be  tlie  law — and  it  is  therefore  void. 
JV/<*/t'  ex  rel.  v.  Yout^,  2  A  in.  &>  ling.  A'. 
Cas.  348,  29  Minn.  474,  9  A'.  W.  Rep.  Tyj. 

\\\  agreement  entered  into  between  a 
railway  company  and  the  authorities  of  a 
town,  upon  petition  of  a  majority  of  the 
tiixpayers,  in  pursuance  of  the  provisions  of 
section  7,  ch.  107,  Laws  of  1877,  for  the  is- 
suance of  the  bonds  of  such  town,  is  in- 
valid, and  imposes  no  legal  obligation  upon 
the  town  by  reason  of  the  unconstitutional- 
ity of  the  statute ;  and  the  latter,  in  its 
corporate  capacity,  is  not  estopped  to  resist 
the  enforcement  of  bonds  so  issued  by  the 
completion  of  a  line  of  railroad  under  the 
agreement  by  such  company.  Plainview  v. 
ilinona  «S««  St.  P.  R.  Co.,  30  Am.  (&«•  Eng. 
R.  Cas.  259,  36  Afinn.  505,  32  A'.  H'.  /iV/», 
745.  —  Following  Harrington  v.  Plain- 
view,  27  Minn.  224,  6  N.  W.  Rep.  777- 

Where  a  railroad  company  procured  ne- 
uotiable  bonds  to  be  so  issued  by  the 
officers  of  a  town,  under  the  section  of  the 
statute  referred  to,  which  were  in  form  the 
obligations  of  the  town,  and  recited  on 
their  face  that  they  were  issued  under  such 
an  agreement,  and  which  were  accepted  by 
such  company,  and  negotiated  and  trans- 
ferred by  it  for  the  full  face  value  thereof, 
and  were  subsequently  negotiated  and  sold 
to  the  citizens  of  another  state,  who,  in  an 
action  in  the  circuit  court  of  the  United 
States,  brought  against  the  town  to  recover 
overdue  interest,  and  tried  upon  the  merits, 
recovered   final   judgment  therefor,  which 


lixed  the  liability  of  the  town  for  the  whole 
amount  of  such  bonds  to  the  holders 
thereof — /le/ti,  that  the  acts  of  the  conj- 
pany  in  procuring  and  negotiating  the 
bonds  were  without  authority  of  law  and 
wrongful,  and  that,  by  reason  thereof,  a 
cause  of  action  arose  in  favor  of  the  town, 
and  against  the  company,  for  the  recovery 
of  the  amount  of  such  bonds,  with  interest. 
J'/ii/nvie-!o  V.  ll'inona  &*  S/.  /'.  R.  Co..  30 
Am.  <S-  Eng.  R.  Cas.  259,  36  .Minn.  505,  32 
A'.  //'.  Rep.  745. 

•'«>.  MiMMiNHippi.  —  The  act  of  .March 
26,  1874,  authorizing  tlie  town  of  Purant 
to  issue  bonds  in  aid  of  railroiuls,  is  con- 
stitutional. A'lW  Orleans,  St.  I..  &"  C.  R. 
Co.  V.  McDonald,  53  Mias.  240. 

40.  Missouri.  —(I)  Decisions  by  state 
courts.— \n  act  of  the  legislature  making 
previous  subscriptions  to  railroad  stock 
valid  and  binding,  if  approved  by  the  court 
making  the  subscription  jifter  the  psissage 
of  the  act,  is  constitutional,  Hannibal  Sf 
St.  /.  R.  Co.  V.  Marion  County,  36  Mo.  294. 

Bonds  issued  by  a  township  under  tlie 
act  to  '.cilitate  the  construction  of  mil- 
roads  in  Missouri  (Sess.  Acts  1868,  p.  92) 
are  not  in  any  sense  county  bonds;  and  the 
county  courts  and  counties  named  are 
merely  made  use  of  as  iigencics  to  carry 
out  tlie  object  contemplated  by  the  act. 
Hence  that  act  is  not  antagonistic  to  sec- 
tion 14,  art.  xi.,  of  the  state  constitution. 
State  ex  rel.  v.  Linn  County  Court,  44  Mo. 
504.— Followed  in  Cass  County  v.  John- 
ston, 95  U.  S.  360. 

The  act  of  1868  is  unconstitutional  and 
void  because  it  permits  a  subscription  to  be 
made  by  a  township  to  the  stock  of  a  rail- 
road company  if  two  thirds  of  the  qualified 
voters  who  vote  on  the  question  at  an  elec- 
tion are  in  favor  of  it,  whereas  the  constitu- 
tion of  1865'  requires  the  assent  of  two 
thirds  of  all  the  quiditied  voters  to  authorize 
any  tnunicipal  subscription.  ITebd  v.  Lit- 
fayette  County,  67  Mo.  353.  — Quotini;  St. 
Joseph  &  D.  C.  R.  Co.  v.  Buclianan  County 
Court,  39  Mo.  485;  Kirkbride  v.  Lafayette 
County,  decided  by  Judge  Dillon  Nov.,  1876 
(U.  %.\— State  ex  rel.  v.  lirassfield,  67  Mo. 
331.— Disapproved  in  Douglass  v.  Pike 
County,  loi  U.  S.  677. —  Ranney  v.  Bader, 
67  Mo.  476.— Following  State  ex  rel.  v. 
Brassfield,  67  Mo.  331 ;  Webb  v.  Lafayette 
County,  67  Mo.  353. 

The  above  act  is  also  unconstitutional 
because    section    5    devotes  all  the   state 


MUNICIPAL   AND   LOCAL   AIU,  40. 


543 


and  louiily  taxes  to  be  c()llettu<l  wiiiiin  any 
township  from  any  railroad  company  to 
whicii  the  township  has  subscribed  to  the 
reimbursement  of  the  township  f(jr  its  sub- 
scription, and  after  it  is  fully  reimbursed, 
then  to  school  fund  of  the  townsliip.  This 
is  indircctlv  makiny;  the  stale  extend  its  aid 
to  railroads,  in  violation  of  section  13,  art.  1 1, 
of  the  constitution  of  1865;  and  is  likewise 
niakiiig  the  county  extend  its  aid  t<j  rail- 
roads without  the  assent  of  two  thirds  of 
the  qualified  voters  of  the  whole  county,  in 
violation  of  section  14,  art.  11.  Section  5  is 
the  compensatory  section,  and  may  l>e  said 
to  sustain  to  the  whole  act  the  same  rela- 
tion that  the  consideration  clause  sustains 
to  a  contract;  hence  it  cannot  be  held  that 
tliis  section  only  is  inoperative:  the  whole 
act  is  void.  U'M  v.  Lafayi'lle  County,  67 
Mo.  353.— Al'i'ROVEU  IN  State  ex  rel.  v. 
Walker,  85  Mo.  41. 

This  act  is  also  void  because  the  legisla- 
ture had  no  power  to  authorize  municipal 
townships  to  subscribe  to  railroad  compa- 
nies. It  could  give  the  power  only  to  cor- 
porate or  quasi  corporate  bodies,  such  as 
counties,  cities,  or  towns.  M'eM  v.  I.a/av- 
ette  County,  67  Mo.  353.  — Foi.I.oweu  IN 
Ranney  v.  Bader,  67  Mf).  476. 

The  Act  of  the  General  Assembly  of 
March  19,  1881  (Laws  of  1881,  p.  189),  pro- 
viding for  the  refunding  of  said  taxes  to  the 
townships  by  the  slate,  is  unconstitutional. 
State  ex  rel.  v.   Walker,  85  Mo.  4r. 

(2)  Decisions  by  federal  courts. —  The 
Mo.  "Township  Aid  Act,"  to  authorize 
townsiiips  to  subscribe  to  the  stock  of 
railroads  upon  a  two-thirds  vote,  is  not  in 
conflict  with  a  provision  of  the  state  con- 
stitution providing  that  no  "  county,  city, 
or  town  "  shall  make  such  subscriptions 
except  upon  a  two-thirds  vote.  Cass  County 
V.  Johnston,  95  U.  S.  360 ;  affirming  3  Dill. 
185.— Following  State  ex  rel.  v.  Linn 
County  Court,  44  Mo.  504 ;  Ranney  v. 
Baeder,  50  Mo.  600;  McPike  v.  Pen,  51 
Mo.  63;  State  V.  Cunningham,  51  Mo.  479; 
Rubey  v.  Shain,  54  Mo.  207  :  State  ex  rel. 
V.  Bates  County  Court,  57  Mo.  70  ;  State  v. 
Clarkson,  59  Mo.  149;  State  v.  Daviess 
County  Court,  64  Mo.  31 ;  State  ex  rel.  v. 
Cooper  County  Court,  64  Mo.  170.  Over- 
ruling Harshman  v.  Bates  County,  92  U. 
S.  569.— Criticlsei)  in  State  ex  rel.  ri, 
Brassfield,  67  Mo.  331.  Followed  in 
Carroll  County  v.  Smith,  in  U.  S.  556. — 
Foote  v.  Johnson  County,  5  Dill.  (U.  S).  281. 
6  D.  R.  D— 35 


—  FoLLtJWiNG  (Jass  County  v.  Johnslon,  ';; 
U.  S.  360,  5  Cent.  L.  J.  506.  Nor  k>l- 
LOWING  Harshman  v.  Bates  County,  92  U. 
S.  569,  3  Dill.  150. 

The  Mo.  Act  of  March  18,  1871,  entitled 
"  An  act  to  autliorizc  cities  and  towns  to 
purchase  lands  and  donate,  lease,  or  sell  the 
same  to  railroad  c()m|)anies,"  is  in  violation 
of  the  stale  constiiution  of  1865,  an.  11,  J 
14,  providing  that  the  general  assembly 
shall  not  authorize  any  county,  city,  01  lown 
to  become  a  stockholder  in,  or  loan  its 
credit  to,  any  corporation  unless  authorized 
by  a  two  thirds  vole;  and  btinds  issued  to 
purchase  lands  to  be  donated  to  a  railroad 
are  void,  though  authorized  by  the  iwn- 
thirds  vote.  Jarrolt  v.  Molnrly,  103  U.  S. 
580;   affirming  5  Dill.  253. 

A  statute  requiring  municipal  bonds  is- 
sued for  slock  in  a  railroad  to  be  registered 
and  certified  by  the  state  auditor,  passed 
after  a  township  had  voted  stock  to  a  rail- 
road, but  before  its  bonds  were  issued,  is 
not  unconstitutional  as  inipairing  the  obli- 
gation of  a  contract,  lloff  \.  Jasper  County, 
\l  Am.  &*  Eng.  K,  Cas.  592,  no  U.  S.  53, 
3  Sup.  Ct.  Rep.  476.— Following  Anthony 
V.  Jasper  County,  loi  U.  S.  693. 

A  law  requiring  ^he  state  auditor  to  res;- 
ister  municipiil  bonds  issued  for  stock  in 
railroads,  and  to  certify  that  the  bonds  is- 
sued according  10  law,  is  not  unconstitu- 
tional as  an  attempt  to  confer  judicial 
powers  on  an  executive  officer.  Hoff  v. 
Jasper  County,  \  5  Am.  &^  Eng.  A\  Cas.  593, 
no  U.  S.  53,  3  Sup.  Ct.  Kep.  476. 

Mo.  Act  of  March  8,  1879,  relating  to  the 
levying  of  taxes  for  the  payment  of  county 
indebtedness,  is  in  conflict  with  that  pro- 
vision of  the  federal  constitution  whicli 
prohibits  laws  impairing  the  obligation  of 
contracts,  so  far  as  it  relates  to  judgments 
against  counties  upon  bonds  issued  in  aid  of 
railroads.  United  States  ex  rel.  v.  Johnson 
County,  5  Dill.  {U.  S.)  207.  //.—Quoting 
State  ex  rel.  7/.  Shortridge,  56  Mo.  126; 
Bronson  v.  Kinzie,  i  How.  (U.  S.)  3n. 

The  act  of  March  18,  1871,  entitled  "An 
act  attaching  certain  territory  to  the  town 
of  Westport  to  enable  said  town  to  take 
stock  in  a  railroad,"  is  constitutional.  It  is 
not  an  act  to  authorize  a  municipal  corpo- 
ration to  tax  for  its  own  local  purposes 
lands  lying  beyond  its  own  corporate  limits. 
Henderson  v.  Jackson  County,  2  McCrary, 
(6^.  .9.)  615,  12  Fed.  Rep.  676. 

The  above  act  is  not  unconstitutional  for 


y. 


i  pf  ^! 


64U 


MUNICIPAL   AND    LOCAL   All),  41  -i-l. 


failiii),'  to  comply  wiili  a  provisicjii  o(  the 
stiilc  coii.niiulion  that  every  law  enacted 
iliull  relate  to  one  subject,  and  that  shall 
lie  expressed  in  its  title.  //rMi/irson  v. 
J,uk.M>ii  County,  2.  MiCrary  (U.S.)  615,  12 
/•■«•(/.  lup.  670. 

The  act  of  .March  24,  1868.  entitled  "An 
;ict  to  enal)le  counties,  cities,  and  incorpo- 
rated towns  t(j  fund  their  respective  debts," 
is  in  conflict  with  the  state  constitution  of 
1865.  art.  1 1,  ^  14,  so  far  as  it  contemplates 
the  rigiit  thereafter  to  subscribe  for  stock 
and  issue  bonds  without  bein).;  authorized 
by  a  special  electi(jn.  /////  v.  Mfinp/u's, 
23  /'id.  Rep.  872. 

41.  Nohraska.— Theactof  Feb.  15, 1869, 
authurizin^r  the  county  of  Otoe  to  subscribe 
to  the  capital  stock  of  a  certain  railroad,  is 
constitutional  and  valid.  Chicago,  li.  &*  <J. 
A'.  Co,  v.  Otoe  County,  16  Wall.  (U.  S.)  667. 
a,  ^Im.  Ky.  ]\ep.  8j.— Al'l'i.iKD  i.N  Duanes- 
bur^h  7'.  Jenkins,  57  N.  Y.  177.  Fmii.i.hwkii 
IN  Pine  Grove  Tp.  v.  Talcott,  ly  Wall.  (U. 
S.)  666. 

The  act  of  February  15,  1869.  entitled 
"  An  act  to  enable  counties,  cities,  and  pre- 
cincts to  borrow  money  on  their  bonds,  or 
to  issue  bonds  to  aid  in  the  construction  or 
completion  of  works  of  internal  improve 
mcnt  in  this  state,  and  to  le^ralixe  bonds 
already  issued  for  such  purpose,"  does  nut 
violate  the  state  constitution  of  1869,  art.  2, 
^  19,  providing  that  no  bill  shall  contain 
more  than  one  subject,  which  shall  beclearly 
expressed  in  its  title.  Otoe  County  v.  //<»/</- 
ivi'n.  15  Am.  &^  f'-'ig-  />'•  (-'<».s.  563,  III  U.  .V. 
I,  4  Sup.  Ct.  Hep.  265.  Dawson'  County 
Cotii'fi  V.  McNamar,  10  Neb.  276,  4  A'.  //'. 
I\cp.  991. 

The  act  of  Feb.  15.  1869,  does  not  conflict 
with  the  provision  of  the  Kill  of  Rights 
that  "  the  property  of  no  person  shall  be 
taken  for  public  use  without  just  compen- 
sation therefor."  Hallenbeck  v.  Hahn,  2 
Neb.  377.  — DisAlM'RoviNC.  Hanson  v.  Ver- 
non, 27  Iowa  28 ;  People  ex  rel.  v.  Salem 
Tp.,  20  Mich.  452 ;  Whiting  v.  Sheboygan 

6  F.  du  L.  R.  Co.,  25  Wis.  167.  Quotino 
Leavenworth  County  Com'rs  v.  Miller,  7 
Kan.  479. 

The  act  of  Februjiry  15,  1869,  as  amended 
March  3.  1870,  and  February  17.  1875.  is  not 
in  conflict  with  section  2,  article  12,  of  the 
new  constitution,  and  is  still  in  full  force. 
lieineman  v.  Co7>inf(ton,  C,  <S-  //.  //.  A'.  Co., 

7  A'eb.  310. 

42.  NeTuda.— The  act  of  Jan.  27,  1869, 


authorizing  a  ceitain  county  to  issue  bonds 
in  aid  <jf  a  railroad  and  to  levy  taxes  to  pay 
the  same,  is  not  in  conflict  with  a  provision 
of  the  state  constitution  providing  that  no 
one  shall  be  deprived  of  his  property  with- 
out  due  process  of  law ;  nor  with  another 
provision  of  the  constitution  that  private 
|)roperty  shall  not  be  taken  for  public  use 
without  just  compensation.  Gibson  v.  Ma- 
son, 5  Xei'.  283. 

Neitliei  is  the  above  act  in  conflict  with  a 
provision  of  the  state  constitution  which 
prohibits  the  legislature  from  passing  local 
or  special  laws  upon  certain  subjects,  in- 
cluding the  a^fse^sment  and  collection  of 
taxes,  as  the  act  simply  directs  a  levy  of 
taxes,  and  in  no  way  directs  hew  they  shall 
be  apportioned  to  the  dilTerent  taxpayers, 
or  how  collected.  Ci/bson  v.  JAmi>//,  5  AVta 
283. 

4:t.  Now  llaiii|iNliirc.  The  statute 
((ien.  St.  ch.  34,  fj  16)  whicii  authorizes 
towns  to  raise  and  appropriate  money,  etc., 
to  aid  in  the  construction  of  a  railroad  is  ncjt 
in  conflict  with  the  constitution.  J'erry  v. 
hiene,  56  .\'.  //.  514.  20y/;«.  h'y.  /up.  184. 
-  RKVlKwiNt;  Concord  R.  Co.  7>.  (Jreely,  17 
N.  II.  47;  (ireat  Falls  Mfg.  Co.  v.  Fernald, 
47  N.  n.  444. 

44.  N«w  York.— New  York  Act  of  April 
12, 1851,  authorizing  the  several  railroad  cor- 
porations of  this  siatp  to  sut)scribe  to  the 
capital  stock  of  a  certain  railroad,  is  consti- 
tutional and  valid.  W/tite  v.  Syracuse  <S- 
U.  A'.  Co.,  14  H<trb.  (A'.  Y.)  ss9.-I)istin- 
cjuisHlNc;  Hartford  &  N.  H.  R.  Co.  v.  Cros- 
well,  5  Hill  (N.  Y.)  383.— Not  foi.i.owkd 
IN  Zabriskie  v.  Hackensack  &  N.  Y.  R.  Co., 
18  N.  j.  Eq.  178. 

Tlie  act  to  amend  the  charter  of  the  city 
of  Rochester,  passed  July  5,  1851,  including 
sections  285  and  291,  inclusive,  which  au- 
thorize the  city  corporation,  upon  certain 
conditions,  to  subscribe  for  and  become  the 
purchaser  of  stock  in  the  Rochester  & 
Genesee  Valley  railroad  company  to  the 
amount  of  $300,000,  to  issue  the  corporate 
bonds  for  that  sum,  to  dispose  of  the  stock 
by  sale,  and  to  raise  by  taxation  the  money 
to  discharge  the  interest  of  such  bonds,  was 
constitutionally  passed  and  is  a  valid  and 
binding  law.  C/arke  v.  /ioc/iester,  28  A'.  Y. 
605 ;  affirming  24  /iarb.  446,  5  Abt>.  Pr,  107, 
14  I/ow.  Pr.  193;  reversing  13  How.  Pr, 
204. 

The  act  of  the  legislature  authorizing  the 
towns  in  the  counties  through  which  the 


a 

Stil 

cor 

the 


MUNICIPAL  AND   LOCAL   AID,  45. 


647 


.\:i>aiiy  &  Sus(|uchaniKi  railmad  is  located 
a  III  in  progress  of  conslrui'lion  to  borrow 
III  )iiey  and  subscribe  for  and  piircliase  tin; 
stock  of  tile  company,  with  a  view  of  aidiiif; 
in  the  (-onipletion  of  the  work,  is  not  repuK- 
naiit  to  any  express  provisions  of  tlie  con- 
stitution ;  nur  is  a  prohibition  upon  the 
power  exerted  by  the  legislature  to  be  nec- 
eisarily  implied  from  the  lirovisions  of  that 
ins'.runietit.  The  power  exercised  was 
wiMiin  the  f^cncral  grant  of  legislative  au- 
thority, and  the  act  is  a  valid  and  binding 
law.  Tliiit  act  docs  not  deprive  any  citi/en 
of  his  property,  nor  take  private  pro()erty 
for  public  use,  within  the  meaning  of  the 
Constitution.  Urant  v.  Courier,  24  lUirb. 
(N.  J.)  232. 

New  York  Act  of  March  18,  1854,  author- 
izing the  city  of  Albany  to  loan  its  credit 
to  a  certain  railroad  company,  was  a  valid 
exercise  of  the  legislative  power  and  is  valicl. 
licinon  V.  Mayor,  etc, ,  of  Albany,  24  Barb. 
(.V.   J-.)248. 

New  York  Act  of  May  18,  1869,  ch.  90/, 
permitting  iniinicipal  corporations  to  aid  in 
the  construction  of  railroads,  is  constitu- 
tional. People  ex  rel.  v.  Hulbert,  59  Barb. 
(A'.  1'.)  446.  — Foi.l.owiNd  Bank  of  Rome?'. 
Rome,  18  N.  Y.  38;  Siarin  v.  Genoa,  23  N. 
Y.  439;  Gould  V.  Sterling,  23  N.  Y.  456. 

New  York  Act  of  March  29,  1869,  author- 
izing certain  towns  in  JefTerson  county  to 
subscribe  to  railroad  stock  and  to  issue 
bonds,  and  the  enabling  act  of  March  9, 
1870,  are  valid  and  constitutional.  Cumincs 
\.  Jefferson  County  Sup'rs,  63  Barb.  (:V.  Y.) 
287  ;  ajfirmed  in  ^  T.  &*  C.  296,  64  ;V.  Y. 
626. 

The  act  of  1869  does  not  appropriate  any 
of  the  public  moneys  or  property  of  the 
Slate,  and  is  therefore  not  ii;  conflict  with 
ii  jirovision  of  the  constitution  that  such 
appropriations  can  only  be  made  upon  a 
two-thirds  vote  of  the  legislature.  In  re 
Tar-Payers  of  Kingston,  40  How.  Pr,  (N, 

Y)  444- 

And  the  taking  of  stock  in  a  railroad  by 
a  town  is  not  "  lending  the  credit  of  the 
state  "  so  as  to  be  in  conflict  with  the  state 
constitution;  neither  is  it  strictly  "lending 
the  credit  "of  the  town.  When  the  town 
acquires  the  stock,  it  sustains  the  same  re- 
lation to  the  company  as  an  individual 
stockholder.  In  re  Tax^Payers  of  Kingston, 
40  How.  Pr.  (N.  Y.)  444. 

The  act  of  1874  (ch.  638,  Laws  of  1874) 
"to  ratify  and  confirm  certain  orders  of  the 


county  judge  of  the  county  tif  Steuben  an- 
poiiiting  commissioners  to  issue  lK);!ds  ♦  '  ♦ 
and  to  legalize  all  proceedings  iiniicr  and 
pursuant  to  such  orders  anri  acts  "  is  not  vjei- 
lative  of  the  constitutional  provision  (State 
Const,  art.  3,  ii  1 6) declaring  tlial  "no  private 
or  local  bill  *  *  *  shall  embrace  more  than 
one  subject,  and  that  shall  be  expressed  in 
the  title."  The  locality  is  the  territory 
composing  the  three  towns  referred  to  in 
the  act,  and  but  one  subject  is  considered. 
The  legislature  had  p<jwer  to  validate  the 
bonds  referred  to  in  the  act.  Ko^^ers  v. 
Stephens,  86  A'.  )'.  623,  niern.;  ajfirnting  21 
Hun  44.  -Following  Horton  v.  Thomp- 
son, 71  N.  Y.  513. 

New. York  Act  of  1876,  ch,  66,  ji  2,  author- 
izing niunici|>alities  holding  bonds  given  by 
the  Rochester  &  S.  L.  R.  Co.  in  exchange 
for  bonds  of  such  municipalities  to  dispose 
of  such  bonds,  is  unconstitutional  in  so  far 
as  it  authorizes  an  exchange  of  bonds  for 
stock  in  the  railroad  company,  being  in 
violation  of  N.  Y.  Constitution,  art.  8,  ^'  2, 
providing  that  no  county,  city,  town,  or 
village  shall  give  property  or  loan  its  credit 
to  any  individual,  association,  or  corpora- 
tion, or  own  stock  or  bonds  therein,  Wheat- 
land V.  Taylor,  29  Hun  (N.  K)  70. 

And  said  section  is  further  unconstitu- 
tional as  being  in  conflict  with  N.  Y.  Con- 
stitution, art.  3,  ^  16,  providing  that  no 
private  or  local  bill  shall  embrace  more 
than  one  subject,  and  that  shall  be  ex- 
pressed in  its  title.  Wheatland  v.  Taylor, 
29  Hun  (N.  Y.)  70. 

Laws  providing  securities  for  the  pay- 
ment of  railroad  aid  bonds  are  in  the  nature 
of  contracts  between  debtor  and  creditor; 
and  the  legislature  cannot,  as  in  the  case  of 
ordinary  legislation,  supersede  at  will  such 
a  law  by  a  later  act  unless  the  later  act  pro- 
vides a  full  equivalent.  Van  Tassell  v. 
Derrenbacher,  56  Hun  477,  10  A'.  Y.  Supp. 
145,  31  A'.  )'.  S.  A'.  312;  affirmed  in  123  N. 
K.  661,  mem.,  26  A'.  E.  Rep.  750,  mem. 

45.  North  C'nrolina. — A  statute  au- 
thorizing the  people  of  a  county  to  take 
stock  in  a  railroad,  and  to  raise  the  funds 
to  pay  for  it  by  themselves,  or  otherwise,  is 
not  forbidden  by  the  constitution.  Cald- 
well V.  Burke  County  fust  ices,  4  fones  Eq. 
{N.  Car.)  323.  Hill  v.  Forsythe  County 
Com'rs,  67  A^.  Car.  367. 

An  act  of  assembly  directing  '.hat  the 
county  taxes  which  might  be  lev'ed  upon 
the  property  and  franchise  of  r.  railroad 


i! 


i! 


I'' I 
I'' 


I 
1 

i 


546 


MUNICIPAL   AND   LOCAL   AID,  40,  47. 


Hm 


company  in  a  curtain  townsiiip  should  be 
applied,  as  far  as  necessary,  t>i  die  payment 
of  tli(!  interest  on  bonds  is-i-,;,c|  by  such 
iLi'>V!<sbi|)  in  aid  of  the  railruad  is  consti- 
tutional, /{/im'/i  V.  Hi-tlfotii Lounty  Com'rs, 
lOo  \.  Car.  yj,  5  -'>'■  A"-  Atp.  17S. 

The  nu've  fact  that  other  neiyliborhoods 
will  derivi'  incidental  advantages  from  such 
action  "!!  ine  part  of  a  township  is  no  ob- 
jecMon  to  leijislation  of  this  kind,  /hinon 
V.  Hertford  County  Com'rs,  \oo  A'.  t'<»/-.  92, 
5  5.  /:'.  AV/.  17S. 

Section  7  of  art.  7  of  the  constitution 
prohibits  any  county,  city,  town,  or  other 
municipal  corporation  from  contracting  any 
debt,  etc.,  without  the  atrirmativc  consent 
uf  a  majority  of  the  people  of  the  county 
who  are  qualified  to  vote.  And  the  act  of 
1S69-70,  ch.  y,  being  an  attempt  to  evade 
the  restriction  whicii  the  constitution  lias 
put  on  counties,  etc.,  to  contract  debts,  is 
unconstitutional  and  void.  Chester  &^  A. 
N.  U,  A'.  Co.  V.  Ciilduiell  County  Com'rs,  72 
A'.  Car.  486.— DiSTiN(iUi.sHiN.»;  Reiger  v. 
Ueaufurt  Com'rs,  70  N.  Car.  319. 

AW,  Oliiu.— The  act  of  Itiarch  i.  1851, 
authorizing  the  commissioners  of  the  county 
of  Clinton  to  subscribe  to  tlie  stock  «)f  a 
railroad  company,  does  not  delegate  legis- 
lative power  or  contravene  the  constitution 
of  1802  in  providing  that  the  subscription 
shall  not  be  made  until  the  assnit  of  a  ma- 
joruy  of  the  electors  of  the  county  (e.xcept 
two  townships)  is  first  obtained  at  an  elec- 
tion held  for  that  purpose.  Cincinnati.  W. 
(^  Z.  li.  Co.  V.  Clinton  County  Com'rs,  1  Ohio 
St.  77.  — Appro V INC.  Bridgeport  1:  Housa- 
tonic  R.  Co.  15  Conn.  475.  RKViKWiNr. 
Talbot  7'.  Dent.  9  R.  Mon.  (Ky.)  526.  — Foi.- 
l.owKii  IN  Steubcnville  &  I.  R.Co.  ?'.  North 
Tp..  I  Ohio  St.  105.  REViKWK.n  in  Knox 
County  Com'rs  1'.  Nichols,  14  Ohio  St.  260: 
Walker  ?'.  Cincinnati,  21  Ohio  St.  14. 
Sleubenville  &^  I.  A'.  Co.  v.  Xorth  Tp.,  1  O'lio 
.S/.  105.  — Foi.i.owiNO  Cincinnati,  W.  h  Z. 
R.  Co.  7>.  Clinton  C«)unty  Conr's,  i  Ohio 
St.  ■'•'. 

The  act  of  March  20,  1850  (48  Ohio  L.  L. 
320).  authorizing  the  county  of  Helmont,  on 
certain  conditions,  to  subscribe  for  stock  in 
the  Central  Ohio  railroad  company,  and 
amending  the  charter  of  said  railroad  com- 
pany {\f^  Ohio  L.  L.  165),  is  not  incon- 
sistent with  the  new  constitution  fi  Ohio. 
T/iom/  on  V.  Kelly,  2  Ohio  St.  647. 

The  iiit  of  April  23,  1872,  to  authorize 
counties,  townships,  and  the  municipalities 


therein  named  to  build  railroads,  etc.  (69 
Ohio  L.  84),  authorizes  the  raising  of  money 
by  taxation,  which  is  equally  applicable  to 
the  unlawful  purpose  of  aiding  railroad 
companies  and  (Jthers  engaged  in  building 
and  operating  railroads  as  it  is  to  any  law- 
ful purpose,  and  gives  to  the  olFicers  in- 
trusted with  the  control  and  application  of 
the  money  thus  raised  no  means  or  power 
of  discrimination  as  to  the  unlawfulness  of 
the  work  or  purpose  to  which  it  is  to  he 
applied,  and  is  thus  in  contravention  of  suc- 
tion 6,  article  8,  of  the  constitution,  and 
therefore  void.  Taylor  v.  A'oss  County 
Com'rs,  23  Ohio  St.  22.— DiSTiNciiisHiNi; 
Walker  7'.  Cincinnati,  21  Ohio  St.  15. 

Section  6  of  article  8  of  the  constitution 
of  Ohio  inhibits  the  combination,  in  ,iny 
form,  of  the  public  funds  or  credit  of  .iny 
county,  city,  town,  or  township  with  the 
capital  of  any  other  person  or  persons,  cor- 
porated  or  unincorpoiated,  for  the  purtiosc 
of  promoting  any  private  enterprise  what- 
ever. Hence  the  act  of  April  6,  1S80  (77 
Ohio  L.  119),  "to  authorize  certain  town 
sbi[is  to  build  railroads  and  to  lease  >>: 
operate  tl'.e  same,"  is  unconstitutional  .md 
void.  U'yseaTer  v.  Atkinson,  37  Ohio  St, 
80.  J'teasant  Tp.  v.  ^^Ctna  Life  his.  Co.,  1 3.S 
U.  S.  67,  II  Sup.  Ct.  Nep.  215.  — Follow Ki» 
IN  /Etna  Life  Ins,  Co.  v.  Pleasant  Tp.,  53 
Fed.  Rep.  214.  —  .fCtna  Life  ins.  Co.  v. 
TIeasant  Tp.,  53  Fed.  h'ep.  214.— FollowiN(J 
Pleasant  Tp.  v.  JV.Wnx  Life  Ins.  Co.,  138  U. 
S.  67,  II  Sup.  Ct.  Rep.  215. 

Suit  was  brought  on  certain  township 
bonds,  and  an  answer  set  up  certain  facts 
for  the  ()urpose  of  showing  that  the  bonds 
were  invalid.  The  trial  court  sustained  a 
demurrer  to  the  answer,  but  on  appeal  the 
judgment  was  reversed,  the  court  holding 
that  the  statute  authorizing  the  bonds  was 
unconstituti<mal.  .\fter  the  case  was  sent 
back  the  trial  court  overruled  the  demurrer 
and  the  plaintifl  replied,  alleging  the  con- 
stitutionality of  the  statute.  Held,  that  the 
defendant  could  oflcr  evidence  to  prove  ilit- 
same  fiicts  upon  which  the  court  aiiove  held 
on  demurrer  that  the  statute  was  unconsti- 
tutional. /*V//<i  Life  Ins.  Co.  v.  I'leasant 
Tp..  53  l-'ed.  Hep.  214. 

47.  IViiiiMylvniiln.— An  act  of  assem- 
bly authorizing  a  subscription  of  a  city  tu 
the  stock  of  a  railroad  ccTporation  is  not 
forbidden  by  art.  1,  section  13,  of  the  state 
constitution,  that  section  not  being  a  restric- 
tion \x\yon  the  legislative  authority  of  the 


m 


MUNICIPAL  AND   LOCAL  AID,  48. 


549 


two  houses,  but  a  bestowal  of  privilej^u  upon 
the  separate  branches.  S/iarpiess  v.  Mayof, 
etc.,of  Phila.,  21  Pa.  St.  147.— Foi.l.oWKK 
IN  Moers?'.  KuadiiiK'.  31  I'a.  St.  188.  NtH 
K(JI,I,()WKI)  IN  Hanson  7/.  Vernon,  27  Iowa  28. 
(JL'OTEIJ  IN  Walker  v.  Cincinnati,  21  Ohio 
St.  14. 

Such  an  act  does  not  impair  the  obliga- 
tions of  any  existing  contracts,  nor  does  it 
attempt  tiic  impossibility  of  creating  a  con- 
tract, but  merely  aiithori'.es  two  corpora 
tions  to  make  one  if  tlicy  shall  see  proper. 
Sliarplcsi  v.  Mayor,  eti.,  of  J'/iiia.,  21  J'a. 
St.  147. 

This  is  not  a  taking  of  private  property 
fcr  public  use  without  compensation,  con* 
trary  to  section  loofart.  9.  When  property 
IS  not  seized,  and  directly  appropriated  to 
public  use,  thougli  it  be  subjected  in  the 
haiii!s  of  the  owner  to  greater  burdens  than 
It  was  before,  it  is  not  taken.  S/iarpicss  v. 
Mayor,  etc.,  of  I'hila.,  21  /'<».  St.  147. 

It  cannot  be  saiil  that  the  plaintilis  will 
be  deprived  of  their  property,  in  violation 
of  section  9,  art.  9.  The  settled  meaning 
of  the  word  deprive,  as  there  used,  is  the 
same  as  that  of  the  word  take  in  section  lu. 
S/tiirp/tss  V.  Mayor,  etc.,  of  I'/iila.,  21  I'a. 
St.  147.  — Kkvikwei)  in  Newmeyer  7'.  Mis- 
sniiri  i&  M.  K.  Co.,  52  .Mo.  81. 

Kaili'oads  are  not  private  aliairs.  They 
are  public  improvements,  and  it  is  tlic  right 
and  <luiy  of  tiie  state  t<>  advance  tiie  com- 
ineine  and  promote  the  welfare  of  the  people 
by  milking  or  causing  them  to  be  made  at 
piiblii;  expense.  .S/iar/iicss  v.  Mayor,  etc.,  of 
J'/ii/a.,  21  J'a.  St.  147. 

The  state  may  rightfully  aid  in  the  cxe* 
cution  of  such  pulilic  works  by  delegating 
to  the  corporatiDU  the  right  of  eminent  (Id- 
main,  as  she  always  does,  or  by  an  exertion 
of  the  taxing  power,  as  she  has  done  x'cry 
often.  S/iarfitiSS  v.  Mayor,  etc.,  of  J'/iila., 
21  Pa.  St.  147. 

An  act  of  the  legislature  aiitliori/ing  a 
city  to  subscribe  to  the  rtock  of  a  railroad 
company  is  consiitutional.  Mocrs  v.  Kcaii- 
iiig,  21  Pa.  St.  188.  — Kdi.i.owinc  Sharpless 
V,  Mayor,  etc.,  of  I'hila.,  21  I'a.  St.  147. 

A  law  which  increased  the  capital  stock 
of  a  railroad,  authorized  its  oliicers  to  bor- 
row money,  and  empowered  certain  munici- 
l)alities  to  subscrib':  to  its  slock— //(■/(/.  not 
in  conflicl  with  a  provision  of  the  I'a.  Con- 
stitution of  1838,  art.  I,  ^  25,  that,  "  No  law 
hereafter  enacted  shall  create,  renew,  or 
extend  the  charter  of  more  than  one  cor- 


poration." The  law  did  not  "extend  "  the 
municipal  charters,  within  the  meaning  of 
the  constitution.  Mocrs  v.  A'cattiHjf,  21  J'a, 
.St.  i8S. 

A  law  authorizing  a  city  to  subscribe  to 
tliv>  stock  of  a  railroad  if  it  should  so  de- 
cide, and  directing  the  manner  of  holding  an 
electiiiii  to  vote  on  a  proposition  to  sub- 
scribe, is  not  void  as  an  attempt  to  delegate 
legislative  power  to  the  people.  Moers  v. 
Jicadiitx,  21  Pa.  St.  188. 

I'rior  to  the  ameiidinents  to  the  constitu- 
tion in  1857  acts  of  assembly  authorizing 
muiiii  ipal  subscriptions  to  the  stock  of 
railroad  and  other  C(jinpanies  were  consti- 
tutional. Com.  t.\-  rtl.  \.  AUcglieiiy  County 
Com'rs,  32  J'a.  St.  2!8.  — Nor  KOLLOWEU 
IN  Hanson  v.  Vernon,  27  Iowa  28. 

The  constitutionality  of  icts  of  assembly 
authorizing  inunici|>al  subscriptions  to  ilic 
stock  of  railroad  compa'.iies  is  a  settled 
(|ui'Stion,  and  no  longe:  open  to  dispute. 
Com.  v.  Taylor,  36  J'a.  St.  263.  Com.  ex  re/. 
v.  J'trAiHs,  43  J'a.  St.  400. 

The  ordinance  passed  by  the  city  councils 
of  Philadelphia  on  the  i6th  of  Feb.,  1854, 
authorizing  a  subscription  of  fifteen  thou- 
sand shares  in  the  North  Western  K.  Co.,  is 
not  in  violation  of  the  provisions  of  the 
act  of  Feb.  2,  1854,  known  as  the  Consolida- 
tion Act,  c  n  violation  of  the  vested  rights 
of  the  C';i  ;. ;  of  the  then  county  of  Phila- 
del|)liia  ;  11. ir  is  it  contrary  to  their  constitu- 
tional right  to  be  exempt  from  taxation  ex- 
cept l)y  tlieir  representatives.  A'/i/i/Zc  v. 
Philadelf'liia  &*.\.  II'.  A',  t",'.,  i  rittsl>.(J'a.) 
158. 

4H.  Hoiitli  Caroliiin.— The  city  council 
of  Charleston,  having  at  different  times 
subscribed  to  the  stock  of  railroad  compa- 
nies within  and  without  the  state,  the  legis- 
lature by  an  act  of  1854  confirmed  all  such 
subscriptions  and  declared  them  obligatory 
on  the  city  council.  ///•/</,  that  the  act  of 
1854  v.as  constitutional,  and  that  no  pro- 
ceeiiing  by  ifuo  warraiito,  in  the  name  (if  the 
state,  for  the  purpose  of  cpieslioniiig  the 
validity  of  such  subscriptions,  could  after- 
wards be  taken.  State  ex  ret.  v.  Mayor, 
etc.,  of  C/ii:r/esto)i.  10  A'/V//.  (.S'o.  Car.)  491. 

.All  act  of  the  legislature  incorporating  a 
cinipany  authorized  certaia  townships  to 
subscribe  to  the  capital  stock  of  such  com- 
pany upon  presi  ribed  conditions,  ant!  in- 
corporated these  lownsliiiis  "for  the  pur- 
pose of  this  act."  //<■/</,  that  the  act  relatei! 
to  but  one  siilijii  I,  wliiili  was  expressed  in 


§ 


Hi 


I:v. 


MUNICII'AI.   AND    LOCAL   AID,  49, 30. 


J -US 

ill 


'i 


the  title—"  An  act  to  incorporate  the  G.  & 
P.  K.  R.  Co."  -and  thai  these  townships 
were  incorporateil.  (Mr.  Justice  .Mclvcr 
duabtiii^.)  l-'lo}ti  \.  I'crrin,  jp  So.  Car.  i, 
8  .V.  A".  /r»/».  14.' 

!tut  as  the  constitution  declares  that  "  the 
corporate autiioriti'.'s of  •  ♦  ♦  townships  ♦  ♦  ♦ 
may  lie  vested  with  power  to  .issess  and 
collcj't  l.ixes  for  ('or|Hirate  purposes,"  and 
as  neither  in  this  act  nor  in  any  utiicr  act 
is  any  (hity  imposed  upon  these  townships, 
or  rij{hl  jjiven  to  then),  except  to  suhscrilie 
to  tills  railroad  and  tii  assess  taxes  to  pay 
this  siihscrijition,  the  townships  are  without 
any  corporate  purpose,  and  therefore  the 
power  to  assess  a  tax  to  pay  this  subscrip- 
tion is  violative  of  this  constiliitional  pro- 
visujii.  Art.  y,  section  8.  (Mr.  Justice  Mc- 
(lowiin  dis.sentiiin.)  I-loyii  v.  I'l-rrin,  30  So. 
Cor.  •  AS.  E.  /up.  14. -Di.STiNiit'isili.Nc; 
Stale  ex  rel.  "'.  Chester  &  L.  K.  Co.,  13  So. 
("ar.  2yo. 

This  act  having  declared  the  county  com- 
missioners t(i  be  the  corporate  agents  of  the 
townships  in  the  matter  of  the  elections, 
subscrtption,  payment  of  interest,  etc.,  the 
county  commissioners  were  not,  in  these 
matters,  constituted  a  court  before  whom 
the  taxpayers  must,  in  the  first  instance,  ob- 
ject to  the  constitutionality  of  the  act,  or  be 
thereafter  estopped  from  raising  the  ques- 
tion. Floyd  V.  Pt-rrin,  30  So,  Car.  1,  8  .V.  A". 
A'l-p.  14. 

A  township  which  posFCS.wd  no  cor|)orale 
authority  to  incur  a  debt  or  im|tosp  a  tax 
declared  its  wiHinf^ncss  to  be  taxed  to  ai(|  in 
the  construction  of  a  railroad.  HiU,  ;hat 
the  tax  was  for  a  public  purjiose,  aiul  it  was 
competent  for  the  let^islatiire  to  ii<ip.)sc 
upon  the  township  ,1  tax  to  pay  such  sub- 
scription, and  to  accept  the  bonds  which  it 
had  illegally  issued,  as  was  done  by  the  act 
of  [)ec.  22,  1888.  S/o/f  fxr./.v.  ll'/ii/isttfi's, 
30  .So.  Cir.  579,  1)  s'.  A.  AV/.  661,  3  A.  A'.  ./. 
777. 

41»,  TriiiU'HiM'r.— A  statute  authorizing 
ti  lin.itfi)  number  of  counties  of  the  state  to 
make  sub.scriptions  to  the  stork  of  certain 
railroadi-i  without  a  popular  vot<!  Is  author- 
ized I>y  a  provision  In  the  state  constitution 
that  "the  legislature  shall  have  power  to 
grant  such  charters  of  incorporation  ;is  m:iy 
be  expedient  for  the  puhiie  jjctod,"  though 
the  general  law  of  the  .state  recpiires  a  vote 
to  authorix.e  such  subscriptions,  and  another 
provision  of  the  constitution  forbids  laws 
"  for  the  beiiclit  of  individu.ils  inconsLstctU 


with  the  general  law  of  tiie  land."  Tiplon 
County  V.  A'<>i,u-r.i  /..  &*  .'A  Works,  1  Am.  C" 
Kiif^.  A'.  Cis.  517.  103  U.  S.  523. 

Tiio  act  of  March  y,  1867,  creating  a  board 
of  commissioners  for  a  certain  county  with 
|)ower  to  issue  bonds  of  the  county  for 
st(K  k  in  railroads,  having  been  declared  un- 
constitutional by  the  highest  court  of  that 
state,  the  U.  S.  supreme  court  will  consider 
that  decision  binding,  and  will  not  review 
the  question.  Xortoii  v.  S'/ii//>y  County,  1 18 
U.  S.  425,  6  Sup.  Ct.  AV/.  1121. 

The  reference  to  a  vote  of  the  people  of 
the  <|uesiion  of  subscription  or  no  sul)- 
scription  of  stock  in  a  railroad  company,  as 
prescribed  in  the  act  of  1852,  cli.  117.  does 
not  invalidate  the  act  by  bringing  it  in  con- 
flict with  the  constitution.  /.ouis~i>i7/,-  &^  X. 
A*.  Co.  V.  Ihividsoii  County  Court,  1  Sneed 
( Tenn.^  Gyj. 

The  act  of  Feb.  25,  1867,  empowering  the 
county  court  of  counties  through  which  a 
railroad  might  run  to  subscribe  to  its  capi- 
tal stock,  as  amended  Nov.  5,  1867,  is  not 
in  conflict  with  the  constitution  of  1834,  and 
the  bonds  issued  thereunder  are  valid. 
(l)eaderiek,  C.J.,  and  Turney,  J.,  dis.sent- 
ing.)  I.auderdoli  County  v.  I'arf^ason,  7  Lea 
(Tfnn.)  153. 

Monds  issued  pursuant  to  tht  act  author- 
izing them  to  bear  interest  I  iwful  .\t  the 
place  where  they  are  payable  ire  net  usu- 
rious on  their  face,  if  the  inleresi  c.iitracted 
(or  was  lawful  at  the  place  of  payment, 
though  It  be  in  excess  of  the  rate  allowed 
in  the  state,  and  such  a  law  is  not  a  partial 
law,  anri  is  constitutional,  \iison  v.  ftity- 
ti'ood County,  38  ./«/.  ill-'  A"«j^'.  A'.  t'(/i-.  620,  87 
Trnn.  7«i,  11  .V.   W.  h',p   88;. 

50.  Ti'XilM.  The  general  (luestion  of  leg- 
islative power  to  authorize  mniii('i|i.il  corpo- 
rations to  subscribe  for  stock  in  r.iilroad 
companii'S,  to  borrow  money  on  the  faith 
and  <-reilit  of  llie  corporation,  to  pay  sub- 
.scrijitions,  and  to  levy  taxes  to  pay  for  lo;ms, 
discussed,  and  authorities  died  at  length, 
and  the  <'onclusion  arrived  at  that  the  courts 
of  last  resort  have  almost  uniformly  sus- 
tai(i«-d  the  coiistitiitioni'lity  of  such  laws. 
Siin  .tntonio  v.  Jones.  28  Tex.  19.  Al'- 
I'KoVKl)  IN  San  Antonio  7'.  (lould,  34  Tex. 
4y.  F<)I.I.(»WF.I»  IN  San  .Antonio  v.  Lane, 
32  Tex.  405. — Anderson  County  v.  Houston 
^  (.'.  .y.  A'.  Co  .  52   /Vi.  2  2«. 

It  was  rompetent  foi  tlie  legislature  while 
the  constitution  of  18  15  was  in  force  to  au- 
thorize a  municipal  cor|>oratioii  tr)  subscribe 


MUNICIPAL   AND    LOCAL   AID,  51. 


to  t  c  capital  stock  of  a  railro.id  niiiipaiiy, 
aiu  '.»  issue  boiuls  and  levy  taxes  for  tlu; 
li(|Ui'laii<iii  of  its  siibscriptioti,  if  two  iliirds 
of  till'  electors  of  the  corporation  should 
vote  in  fav«)r  of  the  subscription  at  an  elec- 
iioii  to  1)0  held  for  the  purpose.  Sdii  Aii- 
tonio  V.  (Ji>u/ii,  34  7V.«-.  49.— Al'i'RoviNC.  San 
Antonio  ?'.  Jones,  28  Tex.  19;  Chiles  t. 
Drake.  2  Mete.  (Ky.)  146.  -  DisaI'I'Rovkd  IN 
Aoinfjion  ?'.  Cabeen,  12  Am.  iSi  Knu.  K.  C.is. 
5«f,  106  III.  200;  San  Antonio  v.  MehafTy, 
</<  '■    S.  312. 

In  1.S50  ilie  lejjislature  passe<l  an  act  en- 
titled "An  act  to  incorporate  the  San  An- 
tonio railroad  company."  of  which  act   all 
«)f  the  provisions  exce|)t  those  contained  in 
"'le  section  conferred  the  oniinary  and  ap- 
propriate poweis,  ri^'hts,  and  privilej.;es  in- 
cident  and    adecpiate    to  such  a  franchise. 
Mut  by  the  twelfth  section  of  the  act  it  was 
enacted  that  the  city  of  San  Antonio  and 
other  incorporated  towns  on  the  line  of  the 
road,  and  also  the  scveial  counties  through 
which  it  should  pass,  ini^lit  subscribe  to  the 
capital  stock  of  the  railroad  company,  and 
issue  bonds  or  otherwise  ple(i}j;e  their  faith 
to  pay   for    the   same,   provided    that   two 
thirds  of   their   respective   electors  shouUl 
vote  in  favor  of  the  sul)scri|)tion  at  elections 
to  be  held  for  the  purpose.    //<•/</,  that  these 
provisions  are  extraordinary  and  not  such  as 
are  necessary  to  or  usually  eiif^rafied  u|)on 
a  railroad  charter,  and  the  section  itself,  if 
rej,'ariled    as   a   separate  enactment,  would 
|)rr)perly  be  entitled  "  An  act  to  provide  the 
ui'ans  for  building  the  railroad."  and  it  was 
tin  relore  repugnant  to  :.,ection   24  of  .uliclo 
7  of  the  ouistitution  of   1845,  then  in  force 
.Hid  above  <'iteil.     Sti//  .liitonio  v.  i.ioii/if,  34 
/'/■I .  41;.      li/i/(f/ni;x  v.  S,i/i  .hi/onio,  47   7V.r. 
5(.S.       DiSAl'i'KoVKii    IN    .Abiiij.jton    v.    Ca- 
been.   12   Am.  ."i    Hii;^.  K.  Cas.  5«i.  106  111. 
::.)o :  S.ui  .\nionio  7'.  Mehalfv,  96  IT.  S.  312. 
I'oj.i.oWKi)  IN  I'eck  T.  San  Antonio,  ;i  Tex. 
.p)o. 

The  authority  sou^iit  t(»  be  j^iven  in  sec- 
lion  12  of  said  act,  upon  certain  cities 
n. lined  (to  issue  bonds,  etc.),  is  not  included 
ill  till-  caption  o!  said  act,  and  iherefore 
Conflicts  with  section  24,  article  5,  of  ilu- 
constitution,  prescribing;  that  "every  law 
•  nacled  by  the  le>;islature  shall  embrace 
but  one  object,  and  that  shall  be  expressed 
in  its  title."  ( /Vl/</'/«(,^«  v.  S,in  Aiitoiuo,  47 
/r-r.  548. 

A  petition  scekiii);  to  recover  on   bonds 
and  interest  thereon  issued  by  the  city  of 


San  .\ntonio  under  section  12  of  the  said 
act  of  September  5,  1850,  is  subject  '.i<  (ie- 
imnrer,  and  the  action  of  ihe  court  below, 
sustaining;  the  ileimirrer  and  dismissing  the 
suit,  is  athrmed.  i.iiiiiii)ii^s  v.  Sail  ^hiionio, 
47  TiX.  548. 

The  Constitution  o'  ;{<45  provided  that 
"every  law  enacted  by  the  legislature  shall 
contain  but  one  (  bject,  and  that  shall  be 
expressed  in  its  title."  A  law  was  passed 
entitled  "An  act  to  incorporate  the  San 
Antonio  railroad  company,"  one  section 
of  which  authorized  a  ciiy  to  lake  stock  in 
the  company  and  issue  bonds  or  t)therwisc 
pledge  the  faith  of  the  city  to  pay  the  ^ame. 
//(■/(/,  no  violation  of  the  constitutional  pro- 
vision. Siin  Antonio  v.  Mihnjfy,  96  I'.S. 
3i:.-^l)isAl'i'koviN(;  San  .Antonio?/. Gould, 
34  Tex.  4y ;  (ji«ldinns  ?'.  San  Antonio,  47 
T«x.  548.  Foi.l.owiNt;  San  Antonio  v. 
Lane,  32  Ttx.  405.— OlSAiTKoVKD  IN  Peck 
V.  San  Antonio,  51  Tex.  490. 

Section  32  of  art.  13  of  the  constitution 
of  1869:  "The  interior  courts  of  the  several 
c<iunties  in  »his  stale  shall  havt  the  power, 
upon  a  vote  of  two  thirds  of  the  qualified 
voters  of  the  respective  counties,  to  assess 
and  provide  for  the  collection  of  a  tax  upon 
the  taxable  property  to  aid  in  the  construc- 
tion of  internal  improvcinenis,  provided 
th.it  sucli  tax  shall  never  exceed  two  per 
<  enl.  upon  the  value  of  such  propeity,"  was 
not  designed  to  determine  the  character 
of  such  air!  or  tiie  n;aiiiier  in  which  it 
should  be  extended,  but  the  conditions  and 
extent  of  «ucli  aid.  Austin  v.  Ciulf,  t'.  &» 
S.  /•'.  A.  Co.,  45  /V.r.  234,  13  ^Ini.  Ay.  Rep. 
172. 

riie  act  of  A|)ril  12,  1871,  entitled  "An 
act  to  authorize  counties,  cities,  and  towns 
to  aid  in  the  construction  of  railroads  and 
other  works  of  internal  improvement,"  pre- 
scribed the  conditions  and  manner  of  ex- 
tendiii);  such  aid,  and  is  constitutional. 
Austin  v.  ilu//.  C.  &■'  -S'.  /•'.  A".  Co.,  45  Tix, 
234,  13  Am.  A'v.  lup.  172. 

A  county  under  such  law  can  aid  in  the 
construction  of  a  railmad  by  taking  stock 
of  the  company  enyaned  in  its  construction. 
.Uistin  V.  ilu//,  C,  vl~  .'^.  /•'.  A'.  Co.,  45  Tex. 
234,  \i.hn.  AV.  h'ip.  172. 

51.  V«M"iiioiit.  — The  Ie>.'i«lai lire  passed 
an  act  authorizing;  certain  towns  to  subscribe 
for.  purchase,  or  accpiire.  on  specilied  con- 
ditions, bonds  of  a  certain  railroad  coin- 
panv  in  New  York,  or  the  IhhuIs  or  stock  of 
any  railroad   comp4iiy  whose   road   should 


!  M 


I 


MUNICIPAL   AN!)    LOCAL   AID,  52, 53. 


m 


^    ^ 


•  m 


So  cmiiicct  with  curtain  lailroiuls  in  tin- 
sti.te  liiut  Tfin  tliruuj^ii  and  near  said  ti><viis 
as  to  atTord  coiniDuiiicatidii  witli  Nt-w  V<)rl< 
(ir  liostdii,  and  to  iiiai\0  and  isstiu  their  own 
neniiiiuwlc  bonds  for  tliat  purpose,  and  pro- 
vliliii^  that  no  such  £ul>scription  should  be 
made  "unless  the  assent  in  writing  thereto 
ol  a  majority  of  tiie  taxpayers,  botli  in 
number  and  amount  of  tax,"  sifj;ned  and 
aci\nowiedj,'ed  before  a  justice  of  the  peace 
"  by  eacii  perstjn  so  assenting,"  should  first 
be  had  upon  an  instrument  of  assent  nam- 
ing tliree  resident  citizens  and  ta-^payers  to 
be  commissioners  to  make  said  subscription, 
n(jr  iiidess  said  commissioner  siiouid  also 
first  append  to  such  instrument  their  cer- 
tificate that  such  majority  had  duly  assented, 
and  procure  such  instrunjent  and  certificate 
and  a  copy  thereof,  certified  by  the  town 
clerk,  to  be  recorded  in  the  county  clerk's 
ofiice.  //(•/(/,  not  unconstitutional  for  au- 
thorizing taxation  for  otiier  than  a  public 
purpose,  because  the  purpose  was  public ; 
nor  because  the  aid  thereby  autiionzed  en- 
ured to  the  benefit  of  a  private  cor|)oration, 
for  the  right  to  tax  depended  upon  the 
pul)lic  character  of  the  oi)ject  to  which  the 
fund  was  appropriated,  and  not  upon  that 
of  the  means  selected  to  apply  it ;  nor  be- 
catise  the  enterprise  the  towns  were  thereby 
empowered  to  aiti  was  beyond  the  scope  of 
tilt-  |iurposos  for  which  towns  arc  organized, 
for  towns  are  created  to  perform  such  gov- 
ernmental functions  as  the  stale  may  for 
convenience  devolve  upon  them;  nor  be- 
cause, the  work  being  of  a  public  character, 
the  general  publi<'  should  have  been  taxed 
in  its  aid,  for  if  the  local  public  enjoy  pecul- 
iar advantages  thereby  the  taxes  may  be 
apportioned ;  nor  because  the  power  was 
n<jt  given  to  be  exercised  only  by  consent  of 
the  towns  expressed  by  vote  in  open  town 
meeting,  for  the  towns'  consent,  although 
not  needed,  was  in  fact  procured  by  a  vole 
more  elTectiudly  guardid  than  the  one  con- 
tended for  could  have  been;  nor  because 
llie  railroad  to  be  aided  was  without  the 
slate,  for  if  the  road  ai<led  was  usefid  to  the 
public  there  was  warrant  for  llir  exercise  of 
the  power  of  taxation  in  aid  of  it,  whether 
ii  was  within  the  control  of  the  state  or  not. 
Iliiiniitjitoii  V.  Piuk.  50  /■/.  178. 

5ii.  Vil'Kiiiiii.-  A  law  which  authori/us 
a  ciiv  to  subsiril'e  to  a  joint  stock  coni|)any 
(iitaled  for  the  jjiirpose  of  o|)en!ng  com- 
niiinication  between  that  city  and  the  waters 
o\  a  navigal)le  stream),  and  to  levy  taxes  and 


l)>!ro\v  money  to  pay  said  sul)scription,  is 
constitutional.  Uodiiiii  v.  Crump,  8  Leigh 
(/'</.)  120.  —  Nor  nn.l,owi;i)  in  Hanson  ?•. 
Vernon.  27  Iowa  28. 

Tile  intent  of  Const,  an.  5,  ji  15.  was  to 
prevent  in  one  act  the  union  of  objects 
having  no  connection,  and  is  effected  where 
an  act  has  but  one  general  aim  fairly  indi- 
cated in  its  title,  as  "to  incorporate  a  rail- 
road company";  and  such  act  may  embrace 
the  necessary  details,  such  as  authorizing 
counties  to  aid  by  their  subscriptions  in  its 
construction,  and  the  like.  And  the  act 
approved  April  21.  i8cS2.  entitled  "An  act 
to  incorporate  the  A.  &  D.  U.  Co.,"  is  not 
f'-piignant  to  said  section.  l\nvi'l!\i,liruns- 
10 ilk  County  Stift'rs,  88  I'a.  707,  14  S.  E, 
Rep.  54J.  —  Al'l'KoviNd  Taylor  v.  Green- 
ville County  Sup'rs,  86  Va.  506. 

When  under  said  act  a  county  subscribes, 
it  and  its  citizens  must  be  presumed  to  have 
acted  (Ml  the  expectation  that  amendments 
to  the  charter  would  be  made  as  required 
by  the  <:ircumBtances.  Po  vt-ll  v.  Prmis- 
li'iik  Coiiiitv  Sup'rs,  88  l\t.  707,  14  i'.  E. 
A\p.  543. 

5JI.  \VIm*'«iisIii.— (I)  Decisions  in  state 
courts.— The  act  of  1867.  cli.  93,  and  statutes 
like  it,  permitting  counties  and  towns  to 
subscribe  for  tliecapit..!  stock  of  railroads, 
and  to  issue  br)iuls  and  levy  taxes  to  pay 
for  the  same,  are  constitutional.  Olcson  v. 
Green  /iav  >1~  /..  /'.  A'.  Co.,  36  Wis.  383.- 
Foi.I.oWK.n  IN  State  IX  rel.  ?'.  Jennings,  48 
Wis.  541;.  LiMiri'.K  IN  S'erriii  7>.  New  Lon- 
don, 67  Wis.  4,(>.  —  /ius//ne//  v.  lieloit,  \o 
Wis.  195. 

The  courts  will  not  declare  such  an  act 
invalid  solely  oi)  the  ground  that  it  is  not 
wise  and  wholesome,  but  is  evil  and  per- 
nicious in  its  consequences.  Ihishnell  v. 
lieloit,  10  ffV.v.  195.— I^oM.oWKH  IN  LawsoM 
V.  Milwaukee  tS;  ^s^  R.  Co.,  30  Wis.  597. 

The  act  of  1867,  ch.  448,  authorizing  llie 
supervisors  of  a  county  to  issue  county 
orders  in  airl  of  a  railroad,  and  to  levy  a  tax 
to  pay  the  same,  is  invalid,  because  not  a 
legitimate  exercise  of  the  taxing  power, 
where  the  county  does  not  become  a  stock- 
holder.     Whiting  V.  Shehoygttn  &^  /•".  </«  A. 

/\'.     Co..     25      Wis.      167.-  DiSAl'I'KOVKI)      IN 

Hallenbeck  v.  Ilahn,  2  Neb.  377;  Olcolt 
v.  Fond  (In  Lac  County  Sup'rs.  if>  Wall. 
(U.  S.I  678.  DisriNdtTisiiKli  IN  Re  Tax- 
payers of  Kingston,  40  How.  I*r.  (N.  V.)  444. 
I'Dl.l.nwiK  IN  Oliott  7'.  Fond  du  Lar 
County,   2    iJiss.    (U.   S.)    368;    Rogan    v. 


MUNICIPAL   AND    LOCAL   AID,  53. 


553 


Watertown,  30  Wis.  259;  I'liillips?'.  Albany, 
28  Wis.  340;  La'vson  v,  Sclincllfn,  33  Wis. 
2S8;  Ellis?'.  N  rthcTii  Pac.  K.  Co..  77  Wis. 
114. 

The  act  of  1S74,  cli.  7,  entitled  "An  act 
to  lc};alize  certain  acts  of  the  hoard  of  su- 
pervisors of  Marathon  county,"  and  having 
for  its  ohject  the  rciidcrinn;  valid  of  certain 
proceedinjis  of  such  supervisors  at  two 
meetiii^js  in  suhscribinj;  to  the  stoclv  of  a 
certain  railroad,  is  not  in  conflict  with  the 
state  constitution,  art  4,  ^  18,  as  failing  to 
express  the  subject-matter  thereof  in  the 
title.     SiN^U'  V.  Matat/ion  Couti/j',  38  U'/s. 

363- 

Tax  ccrtilic.ites  are  "  other  property " 
within  the  nteanin);  of  Rev.  St.  §  949,  pro- 
viding that  a  couniy  may  make  u  subscrip- 
tion to  tlie  capital  stock  ot  a  railroad  com- 
pany, "  to  be  paid  in  tiioney,  lands,  or  other 
property."  Hall  s.  liakir,  74  Wis.  118,42 
A',   /r.  Ri-p.  104. 

The  act  of  1S69,  ch.  126,  as  amended  in 
1871,  ch.  31,  provided  that  the  pro[ier  officers 
of  any  couniy  over  which  a  railroad  mij^lit 
run  mi^ht  levy  a  tax  and  Issue  bonds  to  aid 
in  the  construction  thereof,  and  for  the  pur- 
chase of  a  ri}{ht  of  way  and  depot  grounds, 
"  upon  such  terms  and  conditions  as  shall 
be  agreed  upon,"  and  that  the  company 
should  submit  a  written  proposition  of  "  the 
terms, conditions, and  C(»nsiderati<);is  "  upon 
which  the  money  or  bonds  shall  be  paid  or 
delivered,  and  thai  all  scares  of  capital  stock, 
or  bonds,  or  other  securities  mi^-ht  be  held 
by  a  county  as  by  individuals.  Held,  that 
the  statute  contemplated  a  subscription  to 
the  capital  stock,  imt  a  donation,  but  only 
authorized  the  is«ie  of  bonds  upon  lawful 
terms  and  considerations,  and  when  so  is- 
sued were  valid,  (Ryan,  C.J.,  dissenting.) 
lliiiniit  v.  Wixt-oiisiii  (.'.  A".  t<'.,  45  Wts.  543. 
—  Fi>r,i,owF.i>  IN  State  ex  rel.  ?'.  Jenninjjs, 
48  Wis.  549.  Ki'ViiWKl)  IN  Smith  ?'.  Fond 
(\h  Lac.  10  Miss.  (U.S.)  418.  8  Fed.  Kep.  289. 

12)  Dtri.sioiis  III  fiulmtl  tourts. — A  tax- 
payer cannot  take  advantage  of  a  law  pro- 
viding for  a  ta.x  on  real  estate  only  to  pav 
bonds  issued  by  a  city  for  railroad  stork, 
under  a  law  providing  for  a  tax  on  both 
real  and  personal  jiroperiy  to  pay  them,  on 
the  ground  that  the  law  exempting  per- 
sonal proptrtv  violates  the  obligation  of  a 
ontract.  The  bonilhoiders  only  can  raise 
that  question,  (.l/lui.ni  y.  Sli,/iiyjr,iii,  ,:  Hhick 
(C.  .V.I  510.  — Dim  i\<ii  ismkd  in  Musiatine 
V.  Mississippi  \-  M.  K.  Co.,  1    Dill.  (U.S.) 


536.  Hkvikwi'.I)  in  Kicliniond  v.  Richmond 
&  I).  U.  Co.,  21  Gratt.  (Va.)  604. 

A  law  providing  for  a  special  tax  on  the 
real  estate  only  (.>f  a  city,  to  pay  bonds  issued 
to  a  railroad,  where  there  is  personal  prop- 
erty liable  to  general  taxation,  is  in  conflict 
with  a  provision  in  the  Wis.  constitution 
that  "the  rule  of  taxation  shall  be  uniform, 
and  taxes  shall  be  levied  upon  such  property 
as  the  legislature  shall  prescribe."  It  would 
be  otherwise  if  the  legislature  had  exempted 
personal  property  from  taxation  for  all  pur- 
poses, i/llmiiH  v.  S/ii-boygan,  3  Hlavk  (U.  S.) 
510.— Approving  Weeks  v.  Milwaukee,  10 
Wis.  242  ;  Knowlton  v.  Rock  County  Siip'rs, 
9  Wis.  410;  Lumsden  v.  Cross,  10  Wis.  282  ; 
Attorney-General  J'.  Winnebago  Lake  &  F. 
R.  Plankroad  Co.,  11  Wis.  42. 

The  private  and  local  laws  of  1867,  ch.  93, 
authorized  a  certain  city  to  issue  bonds  to  a 
particular  railroad  "  for  such  sum  or  sums 
♦  ♦  *  as  may  be  agreed  upon  by  and  be- 
tween the  directors  of  the  railroad  company 
and  the  proper  officers  of  such  city  or  vil- 
lage." Helil,  that  this  was  a  sufficient  limi- 
tation upon  the  power  of  the  municipality  to 
issue  bonds,  within  the  meaning  of  tlie  state 
constitution,  art.  1 1,  §  3,  requiring  the  legis- 
lature to  restrict  the  power  of  villages  and 
cities  as  to  taxation,  [sorrowing  money,  and 
contracting  debts.  Lont;  v.  Xtw  London,  9 
lli'ss.  (('.  S.)  539,  5  J'l-d.  A'l-p.  559. 

A  statute  authorizing  any  municipality 
within  a  county  to  issue  bonds  in  aid  of  a 
railroad  is  prospective  in  its  operation,  and 
authorizes  a  village  subsequently  incorpo- 
rated to  issiie  bonds,  l-o"^  v.  A'i"ro  London, 
9  Hiss.  ( U.  .V.)  539,  5  I'id.  h\p.  559. 

The  act  of  March  21,  1871,  anihorizing 
cities,  towns,  and  villages  to  subscribe  to 
the  capital  slock  of  a  certain  railroad,  con- 
tained no  restrictir)n  as  to  the  amount  that 
might  be  subscribed  ;  but  it  was  provided 
that  the  amount  cf  a  proposed  sub.scri|)tion 
should  be  set  fort  1  in  a  written  prof>ositi<)n 
by  the  company,  and  submitted  to  the  peo- 
ple and  approved  by  a  popular  vole.  Ht-ld, 
a  sufficient  com|)liance  with  the  stale  consti- 
tution, art.  II,  section  3,  which  makes  it  the 
duly  of  the  legislature  to  restrict  the  power 
of  ntunicipalities  as  to  taxation,  borrowing 
money,  etc.  Smitli  v.  Fond  du  Lnc,  10  Hiss. 
(U..S.)  418,8  r.d.  AV/»,  289.— I)isri\(;t  isH- 
INC.  f-'osiert'.  Kenosha.  12  Wis.  6i,S  ;  Fisk  v. 
Kenosiia.  26  Wis.  23.  Ki  vikwinc.  Pound 
-',  Wisconsin  C.  R.  Co.,  43  Wis,  560. 

The  act  of   1883,  ch.    150.  approving  and 


t 

■i 

il 


f  *i 


t 


i 


554 


MUNICIPAL   ANU   LOCAL   AID.  r.4. 


I'.it  ifyiii}J  tlic  act  c)f  a  crrtaiii  i-ounty  in  tnii- 
vc'iii^;  certain  laiifls,  which  it  iu-ld  under 
ta  <  titles,  to  aid  \:\  the  coDstriirtion  of  a 
'ail  uad  thri)ii),'h  the  c(»iiiity,  is  valid,  as  a 
railroad  is  so  far  a  |iid)lic  IxMictit  as  to  jus- 
tify taxation  in  its  support,  tliou^di  it  is 
owned  and  operated  l)y  a  private  corpora- 
tion. XorlliffH  l\i<\  A'.  Co.  V.  h'o/iirts,  42 
Feit.  h'i/>.  734.— Not  kdi. lowing  Whilinjj 
T'.  Shciioy^an  &  F,  dii  I^.  U.  Co.,  25  Wis. 
167.  (JtJiri  iNc;  Brodiiead  7'.  Milwaukee,  19 
Wis.  658;  New  Orleans.  St.  L.  &  C.  K.  Co. 
V.  Mcr)f)nald,  53  Miss.  240. 

IV.  CONSTRUCTION  OF  STATUTES 

54.  Ill  ifJ'iUTiil.— The  Ala.  Act  of  Feb. 
17,  1854,  entitled  "An  act  to  aid  the  Ten- 
nessee and  Coosa  railroad  "  (Sess.  Acts 
1853-54,  p.  280),  is  not  void  for  uncertainty; 
tiie  portion  of  the  two  and  three  per  cent, 
funds  therein  specified  is  advanced  to  the 
railroad  conipany  as  a  loan,  and  not  as  a 
^ift ;  and  the  company  is  hound,  in  the  ab- 
sence of  subseque'it  legislation  as  to  the 
ternts  (A  |)ayment,  to  repay  the  sum  so 
loaned  in  cash  within  ten  years,  without 
interest  for  four  years,  and  with  interest  at 
five  per  cent,  per  annum  iifter  four  years. 
Tfniifsue  S^    C.  A'.  Co.  v.  Moori\  36   Alit. 

371. 

Since  the  contract  with  the  railroad  com- 
pany does  not  require  or  authorize  any 
member  of  the  board  of  aldermen  or  com- 
mon council  to  do  any  work  or  |>erforin  any 
service  for  said  corpoiate  auihoritics,  the 
ifilh  section  f)f  the  act  cif  1843,  piohibitiniL; 
contracts  for  work  or  service  between  said 
corporate  iiuthorities  and  the  i.idividuals 
composinfj  either  board,  has  no  application 
to  the  case.  iit'Mons  v.  AfuMe  &*  (7.  X.  A'. 
Co..  36  A/it.  410. 

If  said  contract  be  a  violation  of  the  of- 
ficial <ath,  as  prcjscribed  by  section  7  of  the 
act  of  1844,  »)f  those  aldermen  and  common 
councilmen  who  were  at  the  tiiix!  stock- 
holders in  said  railroad  company,  yet.  since 
the  statute  does  not  declare  the  prohibited 
act  void,  noi  impose  a  penalty  for  its  viola- 
tion, the  contract  is  nevertheless  \alid  in 
iaw.  i'l'Mous  v.  Mobilf  &*  G.  X.  A'.  Co.,  36 
.-/Ai.  410. 

The  (act  that  several  of  the  aldermen  and 
ciiinmon  counci'nien  were,  at  the  !iiiii-  tlie 
contract  was  entered  intf>.  stockliojdi-rs  in 
said  railroad  company  doi-s  not,  />rr  »>•.  in- 
validate the  contract.  (i//>fiotis  v.  .Mohil,-  <S« 
Ci,   X.    A'.    Co..   36   Ala.   410.  -  l<i:vii  wiNc. 


U.mKir  V.  (irciii  Western  K.  Co.,  27  Eng. 
L.  \-  K-i.  35- 

Where  an  ad  of  thv  lejiislature  author- 
ized tlie  city  of  Melleville  to  issue  lw)nds  to 
any  railroail,  and  in  another  section  de- 
dared  that  the  act  should  apply  and  be  in 
force  lor  the  use  and  benefit  of  the  town  of 
Mascoutah— //<■.'(/,  that  the  at  >  ave  the 
town  the  same  power  to  make  a  l-(  rporatc 
subscription  as  it  did  the  cii;.',  upon  the 
same?  terms  and  conditions.  Duker  v. 
Ilittilifs,  68  III.  33. 

The  etiect  of  the  Iowa  Act  of  Jan.  25, 
1855,  was  merely  to  attach  certain  limita- 
tions to  the  exercise  of  the  power  to  make 
municipal  subscriptions  to  railroads  where 
it  had  already  been  conferred,  not  to  ^rant 
or  extend  the  power.  Williamson  v.  Keo^ 
kuk,  44  Imva  88. 

An  act  of  the  legislature  authorized  cer- 
tain named  commissioners  to  receive  sub- 
set iptions  to  the  stock  of  the  Louisville,  H. 
C.  iS:  W.  R.  Co.,  the  shares  to  be  for  ime 
hundred  dollars  cacii,  and  mi^ht  be  sub- 
scribed lor  by  any  individual,  city,  town, 
precinct,  county,  or  corporation  ;  and  as  soon 
as  one  thousand  shares  should  be  subscribeil 
the  subscril)ers  should  thereby  become  iii- 
i-orporati'd  into  a  company.  The  act  fur- 
ther provided  '•  thiit  whenever  the  said 
railway 'ompany.  or  the  president  or  com- 
missioner thereof,  shall  request  the  county 
court  of  any  county  to  dr)  so,  such  court 
mav  forthwith  submit  to  the  rjualified  vot- 
ers of  any  desij,'nated  precinct  *  *  *  in  any 
county  the  question  whether  the  court  shall 
subscribe  to  the  capital  stock  of  said  com- 
pany, on  behalf  of  said  precinct,  the  amount 
of  stock  specified  in  the  recpiest  of  said  com- 
[)any,"  and  also  prescribed  the  manner  of 
holdinp  the  election,  and  the  levy  and  c<il- 
lection  of  the  tax  if  voted.  //<A/,  that  the 
lefjislaiiire  did  not  intend  iliai  preciiu^t  sub- 
scriptions shouM  be  incliideil  in  the  ime 
thousaiHl  sh.irc-i  of  stock  necessary  to  be 
subscrdied  to  authorize  the  company  to  or- 
ia;anlze  Jind  elect  diri'ctors,  and  until  it  was 
orj^anized  the  cpiestion  could  not  be  sub- 
mitted to  the  voters  of  any  precin(  t  wlieJJier 
the  county  court  should  subscribe  for  stock. 
Allison  V.  Louisville.  H.  C.  <*-•  II'.  A',  tit;..  <> 
Itus/t  (AV)  247.  — F)isi  iNcti.stiF.i)  IN  Atii- 
-..n  7'.  Louisville,  H.  C.  .Sr  W.  K.  Co.,  10 
Mush  (Ky.i  I. 

I'lider  Minn.  Laws  1877,  ch.  lof),  )!  7,  in 
order  to  bind  a  town  tr>  issue  bonds  in  aid 
of  a  railroad,  the  a^jreement  to  issue  bonds 


MUNICIPAL   AND   LOCAL  AID.  rtrt. 


555 


iiiiisi  be  |)frfi-(U'(l  Ix'f.iif  ilit-  > .  ii>ti  iic!  iim 
I J  tilt;  portion  of  tliu  road  the  constriK.'tioii 
ot  uriiicli  tlic  aj;reciiRMit  is  designed  t(i  aid, 
StiUi-  ex  rel.  v.  Hifihlaiiii,  25  Minn.  355. 

The  Mo.  Act  of  Fell.  16,  1S72,  fnrhid(hng, 
under  certain  penalties,  tlie  otFiccrs  <»f  a 
iniini<'ipality  in  its  liehalf  to  loan  the  credit 
thereof,  c.t  donate  to  or  suhscribe  stock  in 
any  r.'^ilroad  or  other  company,  witliout  the 
I'l-evious  assent  of  two  thirds  of  the  (lualiflcd 
voters,  is  merely  prohibitory  in  its  char- 
,11'ter,  anil  confers  no  authority  on  those 
olhctTs  when  siicli  assent  is  jjiven,  Jiirroll 
V.  Mohirly,  103  U.  S.  580, 

The  powers  conferred  by  special  charters 
i.jxin  cotinty  Courts  in  Missouri  tosubscril)e 
to  railroad  stock  without  a  vote  of  the 
people  wep-  not  repealed  by  the  prohibition 
ronlained  in  the  state  C(jnstitution  adopted 
in  1S65,  as  that  constitution  did  not  alTect 
existing  charters,  but  only  limited  the  power 
of  the  lej^islatiire  in  the  future.  Xicolny  v. 
Sl.a.iir  County,  3  Dill.  (U.S.)  163.  ~Al'- 
l'KuviN<i  Stale  fx  rel.  v.  Macon  County 
Court,  41  Mo.  453;  Chillicothe  &  \\.  K.  Co. 
V.  Mayor,  etc.,  of  Brunswick,  44  Mo.  553; 
Kansas  City.  St,  J.  &  C.  H.  R.  Co.  v.  Alder- 
man,  47  Mo.  349;  Slate  ex  rel.  7',  Sullivan 
County  Court,  51  Mo.  522;  Smith  7'.  Clark 
County  Court,  54  Mo.  58. 

The  New  Mex.  St.  of  1872  allows  a  county 
to  aid  a  railroad  which  shall  pass  through 
the  county  by  the  issue  of  bonds  not  ex- 
ceeding; 5  per  cent,  of  the  assessed  value  of 
ilie  property,  provided  a  majority  of  the  in- 
habitants vote  in  favor  of  the  proposed 
taxation,  ijok  v.  S.inta  I'i-  County  Com'rs, 
{.\.  .Mix.)  27  /'<!<•.  /up.  619. 

The  N.  \.  Acts  of  1.(63  anil  1864  made 
th'  affidavits  on  file  conclusive  evidence  of 
the  authority  and  duty  of  tli.  •ommission- 
eis  to  isstie  town  bonds,  to  the  amounts 
specified,  for  subset  iptions  to  stock  of  the 
.■\ll)any  &  Susquehan  la  K.  Co.  l\'opie  vx 
rel.  V.  .Mill hell,  35  X.  V.  551  ;  iiffirmin^  45 
Harh.  joS.  -Dim  iNiWisiiKD  in  Ca^win  v. 
Ilaniock,  5  \\\\.  &  Fuig.   K.  Cas.  150,  84  N, 

V.  532. 

.An  act  which  authorizes  a  town  to  sub- 
scribe for  the  stock  of  a  railroad  is  sutFicient 
authority  to  the  company  to  receive  the 
•subscription  and  to  exchange  its  stock  for 
the  bonds  of  the  town  Hiis/ine/l  v.  Reloit. 
10  /fV.v.  195. 

5A.  HIrirt  roiiMtriirtioii.— A  special 
law  em|io\verinn  a  municipal  1  i)rpor;ition  to 
issue  its  bonds  in  aid  of  the  construe* ion  of 


a  railroad  is  to  be  strictly  construed.  The 
power  conferred  is  not  to  lie  exlendefl  nor 
tlie  express  conditions  restricted  by  doubt- 
ful construction,  McManus  v.  Dulutli,  C. 
(S-  A'.  A'.  Co.,  51  Minn.  30,  52  A'.  \V.  h'ep. 
9S0, 

I'urchasers  of  municipal  bunds  execnii'l 
by  othcers  or  agents  must  ascertain  at  ili'  m 
peril  that  ilie  delegated  authority  assunud 
has  be»;ii  conferred.  So  if  a  defendant  town 
was  never  authorized  to  create  its  bonds,  and 
the  commissioners  who  issued  them  were 
not  the  agents  of  the  town  fortliat  purpose, 
holders  of  the  bonds  cannot  recover  upon 
tlieni.  Cincihey  v.  Citneitilea,  21  liliitilif. 
(U.  .V.)35i,  ifi  lud.  Rep.  532. 

The  authority  of  a  majority  of  the  tax- 
payers of  a  town  to  encumber  the  property 
of  a  minority  against  their  will  in  aid  of  a 
railroad  or  other  (-orporntion  is  not  coun- 
tenanced by  the  common  law  ;  and  every 
step,  therefore,  required  by  the  statute  must 
be  strictly  complied  with.  Cimulrey  v.  Cane- 
ailea,  21  lilatchf.  ( i/.  .V.)  351,  16  I-eii.  Rep, 

532- 

Under  the  above  rule  of  strict  construc- 
tion, a  proceeding  to  bond  a  town  in  aid  of 
a  railroad  must  conform  to  the  law  as  it  ex- 
ists at  the  time.  So  where  the  proceeding 
is  after  the  passage  of  New  York  Act  of 
1871,  ch.  925,  amending  the  act  of  1869,  ch. 
907,  the  bonds  are  void  if  the  proceeding  is 
had  according  to  the  act  of  1869,  Ciyiiuirey 
v.  Cixneailea.  21  Ulate/if  (U.S.)  1^,1,  \U  Fed. 
Rep.  532. 

Neither  the  Ga.  Act  of  1871  amending  the 
charter  of  the  city  of  Macon,  nt)r  the  act  of 
1874  regulating  tiie  manner  in  which  munici- 
pal corporations  shall  issue  bonds,  author- 
izes the  issue  of  any  bonds  which  said  city 
or  said  corporations  have  not  a  special  legis- 
lative autiioriiy  to  issue,  independently  of 
such  acts,     liliike  v.  Mayor,  e'c. ,  of  Macon, 

53  ''"•  '72- 

The  III,  act  entitled  "An  act  to  provide 
for  a  general  system  of  railroad  corpora- 
tions," ■ipproved  November  6,  1849,  in  so  far 
as  it  provides  for  municipal  sub.scri|)tion  to 
railroad  companies,  has  no  reference  to  vil- 
lages, but  applies  only  to  counties  and  cities. 
r it: wan  v.  I'reehirfr,  92  ///.  ill. 

The  coiiiKi!  of  a  county  adopted  llie  re- 
port of  a  ciimmittee  recommending  a  sale  of 
Ktock  held  l)y  the  (-ounty  in  a  railroad,  and 
appointed  an  agent  to  manage  or  sell  the 
stock.  Held,  that  a  transfer  of  the  stock  by 
the  agent  was  not  valid  under  a  statute  pro- 


I 


.'* 


'>^' 


li 


5M 


MUNICIPAL    AND    LOCAL   AID,  5<»-5». 


vi'iiiin  lliat  "the  council  of  every  c(juiUy 
may  pass  liy-luws  fur  olnainin^  such  real  ami 
personal  property  as  may  be  required  for  the 
iisj  (jf  tiie  corporation,  and  tor  (lispusiii(;'  of 
such  pr<)perty  when  no  longer  required." 
riic  sale  could  only  be  by  a  by-law  under  the 
lorporale  seal.  A  mere  rcpe.tl  of  the  by-law 
aii'.liori/iii);  the  subscription  'voulil  not  ratify 
I  hi-  transfer.  Craiiti  Juiution  A'.  Co.  v. 
//i(.>////i,'.v  Loiinty,  2jtirtt»/'s  t'//.  (/'.  C'.)40. 

5<(.  UclcKiitioii  «»f'  leKiHiutive  |m>w- 
<>r.  I'hc  provision  of  an  act  which  re- 
<|uires  that  a  suliscription  to  the  stock  of  a 
i.iilroad  company  by  the  county  commis- 
sioners should  depend  upon  a  vote  of  the 
(lii.diliud  voters  of  the  county  is  not  a  dcle- 
j;at;i)n  to  the  people  of  Ici^islative  powers, 
liiit  only  a  le^^itimate  mode  of  obtaining  an 
cxpressi(jn  of  the  will  of  the  constituent  as 
a  '.;uide  for  the  action  of  the  re|>rcsentativc. 
tW/t'/i  v.  Livti  County  Com'rs,  6  Fla.  610. 
.V(;/  .hitonio  v.  Jones,  28  Tex.  19. 

r>7.  At;tH  liiiiitiiiK  iiiiiiiieiiml  in- 
<l«'l»t(MliiCHH.— Ala.  Act  of  1843,^9,  pro- 
hibiting the  corporate  authorities  of  Mobile 
from  borrowing  money,  or  creating  new 
dclits,  "  for  purposes  of  profit  or  improve- 
ment," without  the  unanimous  vote  of  the 
board  of  aldermen  and  C(jmmon  council,  at 
a  full  meeting,  concurring  with  the  mayor,  is 
expressly  reserved  from  repeal  by  the  act  of 
1844  "  to  cons(jlidate  the  several  acts  of  in- 
corporation of  the  city  of  Mobile,  and  to 
alter  and  amend  the  same  "  (Sess.  Acts  1843- 
44,  p.  191,  §48),  and  is  not  repealed  or  in  any 
manner  impaired  by  the  acts  of  1858  and 
1859,  nor  is  said  section  confined  in  its  oper- 
ation to  the  powers  which  said  city  authori- 
ties were  then  authorized  to  exercise.  Hut 
the  issue  of  bonds  under  the  contract  with 
defendant  company  is  not,  within  the  mean- 
ing of  said  section,  the  creation  of  a  new 
debt  "  for  the  |)urpose  of  profit  or  improve- 
ment"; consequently  the  validity  of  said 
Contract  is  not  alTectcil  by  the  fact  tliat 
it  was  not  made  at  a  full  meeting  of  both 
said  boards,  and  with  the  unanimous  vote 
of  all  their  members,  Gilibons  v.  Mobile  &• 
(/■.  \.  A'.  Co..  36  .1/(1.  410. 

Where  an  act  incorporating  a  railroad 
company,  and  empowering  certain  towns 
and  cities  to  subscribe  for  the  capital  stock 
thereof,  was  on  its  passage  before  the  legis- 
laMiie  at  the  same  time  with  an  amendment 
'.o  the  charter  of  the  city  of  GainesviHe,  by 
which  it  was  provided  that  the  city  council 
j^hnidd  have  p<jwer   to  issue   the  boiuls  or 


notes,  or  botii.  of  said  city  for  the  purpose 
of  improving  its  streets  and  promoting  its 
growth  and  advancement  and  educational 
facilities,  and  all  the  property  of  said  ciiy 
should  be  bound  for  their  redemption,  pro- 
vided that  the  debt  of  said  city  should  at  no 
lime  exceed  $35,000,  such  acts  did  not  con- 
flict witii  each  other.  The  amendment  to 
the  city  ciiarter  in  limiting  the  debt  of  the 
city  had  reference  to  a  debt  or  debts  in- 
curred for  improving  tiie  streets,  etc.,  as 
mentioned  therein,  and  not  to  subscriptions 
to  the  corporate  stock  of  the  railroad. 
The  amendment  to  the  city  charter  having 
been  approved  the  day  after  the  charter  of 
tiic  railroad  did  not  repeal  or  render  illegal 
the  provisions  of  the  other  act.  //o/>e  v. 
Miiyor,  etc.,  of  Uiiinesville,  72  (.iti.  245. 

The  act  of  Feb.  22.  1873,  removes  all 
doubt  by  amending  the  act  limiting  the 
city's  indebtedness,  and  prcjviding  that  no 
part  thereof  should  be  construed  to  affect  in 
any  manner  the  city's  subscription  to  the 
stock  of  the  railroad.  //o/>e  v.  Mayor,  etc., 
of  Cuiinesville,  72  Ga.  246. 

Kan.  Laws  of  1885,  ch.  99,  jt  5  (Gen.  St.  of 
1889.  p.  797),  does  not  control  or  limit  tiie 
amount  of  bonds  to  be  issued  under  the 
provisions  of  chapter  67,  Laws  of  1886  (Gen. 
St.  of  1889.  p.  1305),  authorizing  cities  of 
the  first  and  second  class  to  issue  bonds  for 
the  purpose  of  aiding  railroad  companies  in 
securing  depot  grounds  and  terminal  facili- 
ties. Chicago.  K.  &•  A'.  A*.  Co.  v.  Manhat- 
tan, 45  Ka)i.  419,  25  Pac.  Rep.  879. 

58.  UoikIm  do  not  coiiNtitiitc  a  li«>ii 
on  the  rojul.  — The  Ohio  Act  of  March  20, 
1850,  whereby  the  city  of  Cincinn  iti  issued 
its  bonds  to  a  railroad  to  the  amount  of 
$600,000,  amounted  to  a  loan  of  the  bonds, 
secured  by  a  pledge  of  $1,000,000  of  the 
stock  of  the  company,  and  did  not  create  a 
lien  or  mortgage  on  the  road  and  fixtures. 
Cincinnati \.  Morgan,  3  ff'i//,  (('.  S.)  275. 

50.  When  f'(i'(l«>i'al  ctMirts  follow 
<li><'iMioiiM  of  8tat«»  voiirts.  -  -  The  de 
cisions  of  the  highest  court  of  a  state  in 
matters  growing  out  of  the  same  statute, 
relating  to  municipal  aid  to  works  of  in- 
ternal improvement,  and  upon  a  simil.ir 
state  o(  facts,  are  not  conclusive  upon  >he 
supreme  court  f)f  the  United  States.  /  'enice 
V.  Murdoik.  ()Z  V.  S.  494. 

.'\  corporation  may  be  formed  in  any 
ni;mncr  that  a  state  sees  fit  to  adopt;  and 
when  I  he  highest  cnurt  of  a  Stat.'?  decifles 
that,   by  certain   legislation,  a  corporation 


MUNICIPAL  AND   LOCAL  AID,  «0,«l. 


.)j( 


has  been  created  capable  of  receiving  iiui- 
nicipal  aid,  such  decision  concludes  not 
only  the  courts  of  the  state,  but  also  tl)osc 
of  the  United  States.  Hancock  v.  I.ouiiville 
&*  N,  R.  Co.,  145  U.  S.  40«j,  12  Sup.  Ct.  Rep. 
969. 

<(0.  CoiHlitioiiH  |>r<>ct'4U>iit  to  d(>- 
llvory  ul  ItoiidH.— Where  a  railroad  is 
cliartcred  between  desi(;natcil  tcriiiiiii,  .ind 
the  charter  aiithurizcs  countits  "iliruu^h 
which  it  may  pass"  to  subscribe  to  its 
stock,  a  county  may  subscril)e  before  tin: 
route  is  actually  located,  ll'ooi/s  v.  /.aii)- 
rencf  County,  i  Jilack  ( U.  S.)  386. 

Under  the  Cal.  Act.  of  i860  (St.  i860, 
133)  relative  tu  the  issuance  of  the  bonds  of 
liuttc  county  to  the  California  Northern  K. 
Co.  in  certain  contirjgencics,  the  basis  upon 
which  the  supervisors  arc  to  proceed  in 
estimating  the  work  done  by  the  company 
so  as  to  entitle  it  to  bonds  is  the  actual  ex- 
penditure by  the  company,  and  not  the  value 
of  the  work.  This  actual  expenditure,  con- 
nected with  proof  of  the  other  facts  re- 
quired by  the  statute,  prima  fac/r  consti- 
tutes the  company's  claim  on  the  county  for 
the  bonds.  California  Xorthern  A'.  Co.  v. 
liulle  County  Sup'rs,  1 8  Cal.  67 1 . 

The  coutity  might  refuse  to  issue  the 
bonds  if  the  expenditures  were  not  really 
made,  or  if  fraud  had  been  committed  in 
the  contracts  for  such  expenditures.  Cali- 
fornia Northern  A'.  Co.  v.  />'«//<•  County 
Sup'rs,  18  Cal.  671. 

The  board  of  supervisors  act  ministerially 
in  the  issuance  of  bonds  under  this  act,  and 
mandamus  lies  if  they  impro|)erly  refuse. 
California  Northern  R.  Co.  v.  lUitte  County 
Sup'rs,  18  Cal.  671. 

The  Ky.  Act  of  April  9,  1873,  providing 
that  before  bonds  of  any  county  in  aid  of  a 
railroad  are  issued  the  company  shall  give 
a  covenant  that  the  bonds  shall  be  honestly 
applied  to  the  object  for  which  they  were 
siib.scribed,  does  not  apply  to  the  lessee  of 
a  railroad.  Such  lessee  company  may  oper- 
ate the  road  without  giving  a  c»)venant,and 
it  does  nf)t  thereby  beconie  liable  to  in- 
dictment under  the  act  of  April  12,  1873, 
imposing  a  penalty  upon  any  corporation 
which  shall  exercise  its  corporate  powers, 
franchises,  or  privileges  without  first  giving 
bonds  under  the  laws  creating  it.  Com.  v. 
Chesapeake  &-  O.  R.  Co.,  9:  Ky.  118,  15 
S.   \V.  Rep.  53. 

The  Mien,  Act  of  March  22,  1869,  pro- 
vided that  when  municipal   bonds  should 


i:<su<'  in  aid  oi  ,1  railroad  they  should  be  de- 
lacred  to  the  t.laii'  treasurer;  that  the  rail- 
road, upon  presenting  a  certilicate  from  the 
i;oVfrn<ir  that  the  law  had  been  complied 
with,  should  receive  the  same,  with  an  in- 
dorsenient  of  the  treasurer  showing  the 
date  ,ind  to  whom  delivered.  Ilclil :  ( 1 )  that 
an  actual  delivery  loihe  treasurer  was  neces- 
sary :  I  J)  that  I  hi-  governor  alone  coidd  de- 
termine when  tlie  bonds  could  be  delivered 
to  tile  ridlroad;  and  (3)  that  the  indoise- 
inent  of  the  treasurer  was  necessary  to  tlieir 
validitv.  which  could  only  be  aiilhori/ed  by 
the  certilicate  of  the  governor.  )'oi/>it;  v. 
Clareuilon  Tp..  29  .-//;/.  &*  /''(C-  Corp.  Las. 
115.  132  ('.  .v.  340.  \oSup.  Ct.  Rep.  107. 

In  sncli  case — //<•/(/,  that  the  law  of  es- 
crows wonlil  ii|>ply  to  the  bonds  while  in 
the  hands  nf  the  state  treasurer.  Wunii;  v. 
Clarendon  I  p.,  29  Am.  &•  En;.;.  Corp.  Cas. 
115,  132  L'.  S.  340,  \o  Sup.  Ct.  Rep.  107. 

The  st;ite  courts  declared  the  above  law 
unconstitutional,  and  the  state  treasurer 
thereupon  returned  the  bonds.  Several 
years  thereafter  a  creditor  of  the  railroad 
instituted  this  suit  in  equity  against  the 
railroad  and  town,  claiming  that  the  rail- 
road had  an  equitable  title  to  the  bonds, 
which  were  liable  for  his  debt,  /felit.  that, 
as  the  suit  was  not  brought  until  after  the 
statute  would  have  barred  a  suit  at  law  by 
the  railroad  against  the  town,  the  statiitoiy 
bar  could  be  set  up  in  equity.  J'lW//;'  v. 
Clareniton  Tp.,  29  Am.&*  En^t^.  Corp.  Cas. 
115,  132  U.  S.  340,  \o  Sup.  Ct.  Rep.  107. 

<(1.  It<>|M>al  b.v  iiiiplinithiii.— Where 
a  legislature  passes  two  acts,  the  first  to 
authorize  the  towns  of  certain  counties  to 
subscribe  to  the  stock  of  a  certain  railroad, 
and  the  second  to  authorize  the  towns  of 
another  group  of  counties  to  .-subscribe  to 
another  road,  and  one  county  is  common  to 
both  groups,  the  latter  act  does  not  repeal 
the  former  as  to  that  county.  Reil  Rock  v. 
Henry,  106  U.  S.  596,  1  Sup.  Ct.  Rep.  434. 

The  Ga.  Act  of  Dec.  27.  183S.  authorizing 
the  city  of  Savannah  "to  obtain  money  on 
loan,  on  the  faith  and  credit  of  said  city, for 
the  purposes  of  contiibuting  to  works  of 
internal  improvement  "— //<•/</,  to  include. 
the  power  to  guarantee  the  bonds  of  a  rail- 
rc.id.  Said  act  was  nut  repealed  by  the  act 
of  March  4,  1856.  Sat^annah  v.  Kf/ly.  12 
Am.  iS-«  /\n^'.  R.  Cas.  679,  108  I'.  S.  1S4,  2 
Sup.  Ct.  Rep.  468. 

The  general  statute  <f  Illinois  f)f  Nov.  6. 
1849.  ill  relation  tocouniv  subscriptions  to 


•..•.s 


MUNICIPAL   AND   LOCAL  AID,  61. 


M,.. 

IL 


railro.id  stuck,  is  not  rc;>fiili'<l  us  lo  tlio 
IlliiKiiA  Soiitliciiittcrii  K.  Co,  liy  ')u;  act  of 
Ffbriiary  j6,  1867,  ,i  7,  lo  ii)cor|ioi'atc  tliat 
('i>in|iaiiy  i.e.,  hv  tlicsi;  two  acts  a  county 
IS  not  fmhidilfti  to  siil)scril)L-  to  the  capital 
stock  -IS  well  as  to  make  a  donation  to  tlie 
s:d(l  cfjMipany.  Nor  are  the  above  acts  re- 
pelled, HO  far  as  they  concern  the  said  coni- 
paiiv,  l>y  section  lu  of  tin-  amendatory  act 
of  rebrnary  24,  iHfu).  t'Aiy  County  v,  SocMy 
for  Sin'/Ht,'s,  5  ^tiii.&*  /uij;.  A'.  C1I.1.  170,  104 
/  ■.  .V.  57.> 

The  III.  Act  of  1869,  makint;  provision  for 
V'liin^  ;iid  by  counties  to  railroads,  did  not 
repeal  the  act  of  1867,  wliich  allowed  the 
city  authorities  to  issue  bonds  in  such 
amount  as  they  mif{ht  determine.  //<//- 
fhelli'r  V.  Mauoutah,  2  Fed.  Cas.  504,  7 
C/iinit^o  l.i-g.  Xtii's  230. 

Kan.  Act  of  March  3,  1877,  empswered 
counties  to  issue  bonds  to  the  amount  of 
$4iXK)  per  mile  in  aid  of  narrow  );au^e  rail- 
w.iys  and  to  exchanjje  tiiem  for  second 
mortgage  riii '.•.:>.«■  bonds,  but  expressly  pro- 
viiled  that,  it  should  not  be  construed  to 
r'-'pi'^l  or  change  any  "  existing  law  author- 
'/.'ing  counties  to  issue  bonds  in  aid  of  rail- 
roads." At  the  time  this  act  was  passed 
C'liinties  were  authorised  to  aid  railways 
without  regard,  to  their  gauge,  i)ut  could 
not  make  their  bonds  exchangeable  for 
second  mortgage  bonds.  Held,  that  the 
piiwer  of  counties  to  aid  railways  generally 
at  the  time  the  act  of  1877  was  passed  was 
not  taken  away.  K'iii^iiian  County  Coni'rs 
V.  Cornell  University,  57  Fed,  A'e/>.  149. 

The  rights  of  defendant  railway  company, 
and  the  powers  and  duties  of  the  council  of 
the  city  of  Louisville,  as  defined  by  the  com- 
pany's charter  in  1868,  were  not  aiTected  by 
the  new  city  charter  of  1870.  The  charter 
of  the  company  controls  the  charter  of  the 
city  as  to  debts  created  by  the  city  to  pay 
f  r  subscription  of  stock  in  the  company. 
I'vler  V.  Elisubethtrnvn  Cr*  P.  R.  Co.,  9  /iitsA 
iA'y.)  510. 

\i\  iic.l  of  the  general  assembly  entitled 
'•  .\ii  act  to  reduce  the  law  incorporating 
the  city  of  St.  Louis,  and  the  several  acts 
amendatory  thereof,  into  one  act,  and  to 
amend  the  same,"  apf)roved  February  8, 
184^,  contained  the  following  provision: 
'•  The  city  shall  not,  at  any  time,  become  a 
subscriber  for  any  stock  in  any  corp<jration." 
\\y  a  special  act,  approved  March  i.  1851, 
enacted  while  the  above  general  prohibition 
w.i-i  ill  force,    the   city   was  authorized   to 


subscribe  to  the  stock  of  the  Ohio  &  Mis- 
:4issippi  r.dlroad  company  any  amount  not 
exceeding  the  sum  of  $500,000.  An  amended 
city  charter,  also  entitled  "  An  act  to  reduce 
the  law  incorporating  the  city  of  St.  Louis, 
and  the  several  acts  amendatory  thereof, 
into  one  act,  and  to  amend  tiie  same."  ap- 
proved NLtrch  3,  1851,  contained  the  provi- 
sion, above  set  forth,  that  "  the  city  tiall 
not,  at  any  time,  become  a  subscriber  for  any 
stock  in  any  corporation  "  (art.  7,  section 
13,  Sess.  Acts  1851,  p.  168);  .ind  also  the  fol- 
lowing (see  art.  7,  section  25):  tliat  "all  acts 
and  parts  of  actscontrary  to  and  inconsistent 
witii  the  provisions  of  this  act,  or  with'i 
the  purview  thereof,  are  iicreby  repealed." 
These  several  acts  took  elTect  from  their 
passage,  //eld,  that  the  act  of  Marcii  3, 
1851,  did  not  repeal  the  special  enabling  act 
of  March  1,  1851,  and  that  a  subscription 
under  the  act  of  Marcli  1,  1851,  to  the  stock 
of  the  OhioiS:  Mississippi  railroad  company, 
made  by  the  city  of  St.  Louis,  was  author- 
ized by  law  and  valid,  and  that  the  i  ity 
thereby  becante  a  legal  stockholder  in  said 
company.  City  <S-  County  of  St.  Louis  v. 
/lle.\tinder,  23  Mo.  483. 

The  Neb.  Act  of  1S83  is  a  complete  act. 
covering  the  wlmle  of  the  matter  embraced 
in  the  act  of  Feb.  19,  1877,  and  repeals  the 
first-named  act  by  implication.  Sta  eex  rel. 
v.  llenton,  33  AW'.  823,  51  A'.  W.  A'ep.  140. 

In  1885  the  legislature  passed  an  act 
amending  sections  11,12,  and  i3of  ch.45of 
the  Compiled  Statutes,  which  had  been 
repealed  by  implication  by  the  act  of  1883. 
//(///.  that  the  amendatory  act  of  1885  was 
invalid.  State  e.v  rel.  v.  lieiiton,  33  Neb.  877, 
51  A'.  .'/'.  Rep.  140. 

Under  the  act  of  1883,  where  a  county 
has  issued  refunding  bonds  bearing  interest 
at  six  per  cent.,  it  may,  after  such  bonds  an 
payable,  issue  other  refunding  bonds  at  a 
lower  rate  of  interest,  as  four  and  one  ball 
per  cent.,  to  replace  them.  State  ex  rel.  v. 
lienton,  33  Wh.  823,  51  A'.  W.  Rep.  140. 

N.  Y.  Act  of  1869,  ch.  907,  as  amended  in 
1870-71,  requiring  that  all  taxes  collected 
from  a  railroad  in  a  tow  n  which  has  aided 
in  the  construction  of  the  road  by  issuing 
bonds,  except  road  and  school  taxes,  shall 
be  applied  to  the  retirement  of  such  bontls, 
is  not  repealed  by  the  act  of  1880,  ch.  28<'), 
entitled  "  An  act  fo.  the  relief  of  the  town 
of  Somerset,  to  abolish  the  office  of  railroad 
commissioner  of  said  town,  and  to  enable 
it  to  adjust  its  indebtedness  and  Issue  bonds 


MUNICIPAL   AND    LOCAL   AID,  «2-««. 


550 


therefor."  Ackftson  v.  *\V<i^'iirii  County 
Sii/>'rs.  25  A',    v.  Siipp.  196,  72  /////I  fii^). 

02.  WIk'ii  tuxpayor  Ih  ciitlthMl  to 
Ntork.— A  taxpiiyur  lius  the  exclusive  ri>,'ht 
l<>  the  stock  due  from  a  companv  uiuler  a 
suliscription  to  its  stock  made  under  the 
general  railroad  law,  and  it  can  not  \w 
issued  hy  tlie  railroad  to  any  <inc  else. 
Miistin  V,  I'iUific  A'.  Co.,  .S3  Mo.  634, 

I'liiler  tile  Pacific  railroad  acts  of  Mis- 
souri, a  taxpayer  is  not  entitled  to  have  his 
tax  ccrlilicati's  converted  into  stock  until 
the  suhscription  made  hy  the  county  in  ai<l 
of  the  road  has  heen  paid  in  full.  Sputiock 
V.  Mis.u>iiri  Piif.  />'.  Co.,  90  Mo.  199,  3  .S'.  //'. 

h'lfi.   2M). 

0:<.  IN'Kiilutini;  hoIIIiik  price  of 
ImiimIm.  'A  provision  in  a  railroad  charter 
that  counties  iniKlit  suhsrrihc  to  its  stock, 
and  issue  its  honds  in  payment,  hut  that  the 
bonds  should  not  he  sold  at  less  than  par, 
only  meant  that  they  should  not  he  so  sold 
at  the  expense  of  the  counties ;  but  after  the 
company  had  taken  them  at  par  it  was  not 
prevented  from  selling  them  at  a  discount. 
U'ooi/s  V.  /.iiuifi'/itY  County,  1  lilack  (U.  S.) 
3«6.— Imii.i.hwkh  in  Richardson  v.  Law- 
rence County,  17  Law  Ed.  (U.  S.)  558. 

Ind.  Act  of  Dec.  31,  1849,  ^6  (Local  Acts 
«)f  1849  and  1850,  p.  39),  legalized  the  stock 
subscribed  by  counties  before  its  passage, 
and  empowered  the  commissioners  to  issue 
honds  for  its  payment.  The  same  act  re- 
stricted the  railroad  company  therein 
named  from  selling  its  own  bonds  at  a 
greater  discoimt  than  ten  per  cent.,  but  did 
not  so  restrict  it  in  the  sale  of  the  bonds 
of  others,  nartholoi/tt^u  Cou><ty  Cotn'rs  v. 
lirii^ht,  18  Ind.  93. 

04.  Itf^pcal  of  law  h«for<^  siili- 
Ncriptioii  is  coiiipl<>t<Ml.  —  A  lawauthor- 
izing  counties  to  subscribe  to  the  stock  of 
radroads  upon  the  recommendation  of  a 
nr.iufl  jury  provided  that  acceptance  of  a 
subscription  by  a  company  should  be  deemed 
acceptance  of  another  act  imposing  certain 
restrictions  on  corporations.  After  a  recom- 
mendation by  a  grand  jury,  but  before  Jtc- 
ceptance,  the  law  imposing  the  restrictions 
was  repealed.  Held,  that  ihe -right  to  sub- 
scribe under  the  recommendation  ceased, 
and  that  no  subsequent  acceptance  by  the 
company,  or  subscription  by  the  county 
commissioners,  would  bind  the  coimty. 
Mercer  County  v.  Pittsburgh  &*  E.  A",  to.. 
27  Pa,  St.  389.— AiM'Riivi'.i)  N  Crawford 
County  V.  Pittsburg  &  E.  R.  Co.,  32  Pa.  St. 


141.  DrsriNdULsiiKi)  in  Mercer  County  7-. 
Hacket.  1  Wall.  (U.  S.)  83.  Exi-i.aini.i. 
IN   Stale  V.  Saline   County  C«>urt,  48  Mo. 

390- 

Where  a  county  by  u  vote  of  the  people 
thereof  obtained  the  right,  under  Kan. 
Laws  1865,  ch.  13,  and  Laws  1866.  ch.  34.  to 
subscrdx!  for  stock  in  and  issue  l)onrts  to  a 
railroad  company,  such  right  was  not  abro- 
gated hy  the  legislation  of  1868  and  1869 
((ien.  St.  1868,  p.  203,  iiji  51-54;  Id.  p.  892,  ffii 
1-4;  Id.  pp.  1 123 -II 28,  ffii  I,  2,6.8;  Laws 
1869,  pp.  108-110),  but  su(-h  right  was  con- 
tinued in  force.  Morris  v.  Morris  County 
Com'rs,  7  Klin.  576. 

4(5.  SiiliH<*riptioiiH  piiyulilo  ill 
IioimIh.— A  provision  in  the  charter  of  a 
railroad  company  requiring  live  per  cent,  of 
its  stock  to  be  paid  in  does  not  apply  to 
the  aid  extended  by  counties  in  the  con- 
struction of  the  road  by  an  exchange  of 
county  bonds  for  stock  in  the  railroad  com- 
pany. Austin  V.  liulf,  C.  &*  S.  /•'.  A'.  Co.,  45 
Te.x-.  234,  13  /////.  A>.  A'</.  172. 

Section  8  of  the  charter  of  a  railway  com- 
pany gave  power  to  municipalities  to  make 
subscriptions  to  such  company,  issue  bonds, 
and  levy  the  requisite  tax  to  pay  them,  upon 
a  vote;  section  9  provided  the  mod<-  of 
calling  an  election  to  "determine  whether 
such  subscription  should  be  made  and  su(-h 
tax  levied  "  ;  section  10  provided  that,  upf>n  a 
vote,  the  corpoiale  authorities  should  "levy 
such  tax, and  subscribe  the  amount  thereof," 
as  voted  :  and  section  1 1  provided  that  n  any 
such  municipality  should  subscribe  under 
the  provisions  of  the  charter,  and  should 
issue  its  bonds,  they  should  be  in  full  pay- 
ment of  its  subscription.  I/eld,  that  the 
several  sections,  construed  together,  only 
provides  for  subscriptions  payable  iti  bonds 
to  be  discharged  by  the  levy  of  a  tax,  and 
not  for  subscriptions  to  be  paid  in  money, 
in  the  first  instance,  previously  raised  by 
taxation,  Prairie  v.  l.loyd,  3  ////;.  il**  I'-ng- 
A'.  Cas.  58,97  ///.  179. 

iW.  C'liarf<*r  of  conipany  aiitlioriz- 
iiiprsulisrription.— A  provision  in  a  city 
charter  limiting  its  power  to  borrow  mr)ney 
to  a  certain  amount  is  taken  away  by  a 
provision  in  a  railroad  charter  which  au- 
thorizes the  several  counties,  cities,  and 
incorporated  villages  along  the  line  of  the 
road  to  sid)scribe  to  its  capital  stock  in 
sums  larger  than  the  amount  authorized  hy 
the  ritv  charter.  Robertson  v.  Rockford,  21 
III.  45<. 


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33  WBT  MAM  STtHT 

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MUNICIPAL   AND    LOCAL   AID,  67. 


! .  1  'i 


The  charter  of  the  Belleville  &  S.  I.  R. 
Co.  authorized  the  directors  to  receive 
subscriptions  to  the  capital  slock  as  might 
be  prescribed  by  their  by-laws  and  regula- 
tions, "  from  any  county,  citv-  town,  or  vil- 
lage," subject  to  the  provisions  and  restric- 
tions of  "an  act  to  provide  for  a  general 
system  of  railroad  corponitions,"  approved 
Nov.  6,  1849,  did  not  confer  [- ower  upon 
municipal  corporations  to  subscribe  to  the 
stock  of  the  companv,  nor  did  tlie  leference 
to  the  provisions  of  the  act  of  >.i',  .n large 
the  terms  of  the  ^'rtnt.  Pitzmuii  v.  Free- 
burg,  92  ///.  III. 

By  the  act  incorporating  the  Pa',  nc  lil- 
road  (Mo.  Sess.  Acts   1849,  p.  22T,  r'-e 

respective  counties  in  which  the  'ir  lad 
shall  be  located  a^e  authorized  to  si..b:)rribe 
for  the  stock  of  the  company  and  invest  the 
funds  of  th";  county  therein.  The  stock  is 
to  be  held,  o'vned,  and  treated  as  county 
property,  and  the  stock  subscribed  by  each 
county  belongs  to  and  is  owned  by  the 
countv  unless  its  title  has  been  divested  by 
acts  and  transactions  subsequent  to  the 
original  subscription.  Ridings  v.  Hall,  48 
Mo.  100. 

07.  Retrospective  operation.*— The 
Ky.  Act  of  April  9,  1873,  "for  the  protec- 
tion of  counties,  citiefe,  etc.,  subscribing 
stock  in  railroads,  turnpikes,  and  other  im- 
orovements,"  was  not  intended  as  an 
amendment  to  the  charter  of  any  corpora- 
tion, but  as  a  general  law,  and  has  no  appli- 
camjn  where  a  subscription  for  stock  in  a 
corporation  for  the  construction  of  a  rail- 
road, turnpike,  or  other  similar  public  im- 
provement had  been  fully  consummated 
before  the  passage  of  the  act.  Cumberland 
•S«»  O.  R.  Co.  V.  Washington  County  Court, 
10  Hush  {Ky.)  564. 

The  Md.  Act  of  1874,  ch.  225,  confirmatory 
of  the  act  of  1872,  ch.  245,  was  doubtlessly 
passed  under  the  assumption  that  the  pop- 
ular election  required  by  the  act  of  1872 
had  been  regularly  held  ;  and  the  conditions 
precedent  to  a  valid  confirmatory  act  not 
having  been  in  fact  complied  with,  there  was 
no  legal  or  valid  authority  conferred  and 
confirmed  by  said  acts  of  1872  and  1874. 
Baltimore  &•  D.  P.  R.  Co.  v.  Pumphrey,  74 
Md.  86,  2!  At  I.  Rep,  559. 

Where,  under  the  N.  Y.  Act  of  1869  (ch. 
907,  Laws  of  1869)  authorizing  municipal 
corporations  to  aid  in  the  construction  of 

•  See  also  ante,  22,  23. 


railroads,  and  ..prior  to  the  passage  of  the 
amendatory  act  of  1S71  (ch.  925,  Laws  of 
1871),  jjroceedings  had  been  regularly  taken 
to  bond  a  town  in  aid  of  a  railroad,  and  the 
county  judge  had  made  his  adjudication 
and  record,  and  had  appointed  conmiis- 
sioners — held,  that  the  proceedings  were 
not  invalidated  by  said  anieiidiitory  act,  ;nul 
that  the  commissioners  had  auilioriiy,  after 
its  passage,  to  subscribe  for  stock  and  issiii; 
bonds  under  and  \\\  pursuance  ol  the  judg- 
■■  :it  of  the  county  jndgc.  Syracuse  >(i-'. 
Bank  v.  Seneca  /-'alls,  7  j-lni.  &^  Hitt;.  A'.  Cas. 
216,86  A'.  Y.  317;  ajjtriiitng  21  ////;/  304. — 
FoLi.owiNc;  Angel  v.  Hume.  17  Hun  374. — 
Angel  v.  Hume,  17  Hun  (.W  J'.)  374. — Fm.- 
i.owEU  IN  Syracuse  Sav.  Bank  v.  Seneca 
Falls,  7  Am.  &  Eng.  R.  Cas.  216.  86  N.  Y. 
T,\7.  — Calhoun  v.  Delhi  G^^  M.  R.  Co.,  28  /////.• 
(A".  V.)  379,  64  Ho7a.  Pr.  291. 

The  commissioners  had  authority  to  issue 
bonds,  all  payable  at  the  expiration  of  thirty 
years  from  date;  the  provision  of  said  act  of 
1871,  amending  section  4  of  the  original  act 
by  adding  thereto  a  clause  authorizing  the 
commissioners  to  issue  bonds  payable  in  less 
than  thirty  years,  but  requiring  they  shall 
not  so  issue  them  that  more  than  ten  per 
cent,  shall  be  payable  in  any  one  year,  simply 
gave  to  the  commissioners  an  option  either 
to  make  them  all  payable  at  the  expiration 
of  thirty  years  or  to  make  them  payable  in 
a  shorter  time ;  if  they  chose  the  latter,  thev 
were  to  be  made  payable  in  instalments. 
Syracuse  Sav.  Bank  v.  Seneca  Falls,  7  Am. 
«3-»  Eng.  R.  Cas.  216,  86  A'.  K.  317  ;  affirming 
21  Hun  304. 

The  amendments  to  N.  Y.  Const,  art.  8, 
§  II,  adopted  Jan.  i,  1875,  prohibiting 
counties,  cities,  towns,  or  villages  from 
thereafter  loaning  their  money  or  credit  in 
aid  of  any  individual,  association,  or  (or- 
poration,  operate  as  a  repeal  of  all  existing 
statutes  relating  to  the  same  subject  except 
so  far  as  they  relate  to  existing  contracts  in 
force  when  the  amendments  were  adopted. 
And  no  legal  obligation  is  created  as  against 
a  town  until  the  subscription  to  the  slock  is 
actually  made.  The  judgment  of  a  county 
judge  merely  finding  that  a  majority  of  the 
taxpayers  of  the  town  has  consented  to  a 
bond  issue  does  not  create  such  right. 
Buffalo  &•  J.  R.  Co.  V.  Railroad  Com'rs,  5 
Hun  OV.  V.)  485. 

If  there  were  any  defects  or  irregularities 
in  the  proceedings  by  Oconto  county  in 
subscribing  and  paying  for  stock  of  the  St. 


'b 


MUNICIPAL   AND   LOCAL   AID,  «H-71. 


561 


f 

i 

if- 


P.,  E.  &  G.  T.  R.  Co.,  tlicy  were  cured  by  ch. 
151,  Wis.  Laws  of  1887,  and  such  proceed- 
ings were  tiiereby  rendered  valid,  even  when 
called  ill  question  in  a  suit  commenced  be- 
fore the  passage  of  that  act.  HaU  v.  Baker, 
74  H^is.  118,  42  A'.   IV.  Rep.  104. 

68.  Authority  to  reluiKl.— In  1877 
the  Nebraska  legislature  i)assed  "  an  act  to 
authorize  the  issue  of  county  bonds  in  cer- 
tain cases."  This  provided  for  issuing  re- 
funding bonds  to  replace  bonds  issued  to 
railroad  companies  or  any  work  of  internal 
improvement.  Tliis  act  was  carried  into 
Comp.  St.  1881  as  sections  11,  12,  and  13, 
ch.  45.  In  February,  1883,  the  legislature 
passed  an  act  to  authorize  counties  to  issue 
refunding  bonds,  at  not  to  exceed  si.x  per 
cent,  interest,  t<j  replace  other  bonds  previ- 
ously issued  by  the  county  and  then  pay- 
able. Held,  that  the  act  of  1883  applied  to 
all  bonds  previously  issued  by  a  county  and 
then  payable.  State  ex  rel.  v.  Benton,  33 
Neb.  823.  51  TV,  W.  Rtp.  140. 

County  bonds  issued  to  aid  in  the  con- 
struction of  works  of  internal  improvement 
can  be  refunded  only  under  the  provisions 
of  the  act  of  February  28,  1883.  State  ex 
rel.  V.  Benton,  33  Neb.  834,  51    A'.   W,  Rep. 

144- 

05).  For  coiistriictioii  of  depots 
ami  side  ti'aclis.— The  Kansas  Act  of 
March  2,  1872,  "to  aid  in  the  construction 
of  railroads  or  water  power,  by  donations 
thereto,  or  the  taking  of  stock  therein,  or  for 
works  of  internal  improvement"— /^i'/f/,  to 
authorize  bonds  to  aid  in  the  construction 
of  depots  and  side  tracks.  Rock  Creek  v. 
Strontf,  g6  U.  S.  271. 

70.  Time  of  taking  eflfect.  —  The 
Neb.  "  Act  concerning  counties  and  county 
officers,"  approved  March  7,  1879,  did  not 
take  effect  till  Sept.  i  of  that  year.  The 
provisions  of  section  26  of  that  act  have  no 
application  to  valid  county  bonds  issued  be- 
fore Sept.  I,  1879.  Burli'njs^ton  &•  M.  R.  R. 
Co.  M.Saunders  County,  17  Neb.  ^li,  22  N. 
W.  Rep.  560. 

The  Ohio  General  Act  of  May  3,  1852, 
"  to  provide  for  the  organization  of  cities 
and  incorporated  villages,"  provides  (section 
1 1 1)  that "  this  act  shall  take  effect  from  and 
after  the  fifteenth  day  of  May  next " ;  yet 
in  view  of  all  its  provisions,  and  of  the  fact, 
as  shown  by  the  legislative  journals,  that 
the  same  was  finally  passed  by  the  concur- 
rent vote  of  the  two  houses  on  the  28th  of 
April,  i8$2,  although  the  same  was  not 
6D.  R.  D.— 36 


signed  by  the  presiding  officers  of  the  *wo 
houses  until  the  3d  of  May  following,  it  is 
evident  that  the  act,  in  the  mind  of  the  leg- 
islature, spoke  from  the  28th  of  April,  1852, 
and  took  effect "  from  and  after  the  lifteenth 
day  of  May  next"  thereafter;  and  the  first 
section  of  that  act,  repealing  "  all  laws  "  then 
"  in  force  for  the  organization  or  govern- 
ment" of  municipal  corporations,  did  not 
operate  to  repeal  the  prior  local  and  special 
acts  authorizing  certain  municipal  cor[)ora- 
tions  to  subscribe  stock  in  the  Dayton  & 
Michigan  R.  Co.,  and  to  issue  bonds  in  pay- 
ment of  such  subscriptions.  Stale  ex  rel.  v. 
Perrysburg,  14  Ohio  St.  472. 

Nor  does  the  seventeenth  section  of  said 
act  (as  amended),  which  limits  the  power  of 
taxation  by  the  corporate  authorities  of 
cities  and  villages,  for  the  purpose  of  pay- 
ing the  interest  on  their  public  debt,  to  six 
mills  on  the  dollar,  operate  to  repeal  so 
much  of  said  prior  local  and  special  acts  as 
confer  the  power  and  impose  the  obligation 
to  levy  taxes,  at  a  rate  absolutely  sufficient 
to  pay  the  accruing  interest  on  the  bonds 
issued  under  said  prior  and  special  acts, 
although  the  same  may  exceed  the  rate  of  six 
mills  on  the  dollar.  State  ex  rel.  v.  Perrys- 
burg, 14  Ohio  St.  472. 

71.  Jurisdiction  of  county  jud{;c. 
—  By  N.  Y.  Act  of  1869  relating  to  the 
bonding  of  towns,  a  town  was  transformed 
from  a  mere  political  division  of  the  state, 
with  limited  corporate  powers,  into  a  mu- 
nicipal corporation,  with  power  to  borrow 
money  on  an  extensive  scale,  and  to  invest 
it  in  the  s  ck  or  bonds  of  a  railroad  com- 
pany as  a  lajority  of  the  taxpayers,  repre- 
senting a  majority  of  its  taxable  property, 
should  designate,  but  such  powers  could 
only  be  exercised  by  proper  proceedings 
before  a  county  judge.  Brmvnell  v.  Green- 
wich, 114  A'.  Y.  518,22  N.  E.  Rep,  24,  24 
N.  Y.  S.  R.  6,  4  L.  R.  A.  685.— Distin- 
ouisHiNG  People  ex  rel.  v.  Batchellor,  53  N. 
y.  128;  Horton  v.  Thompson,  71  N.  Y.  513. 
Following  Horn  v.  New  Lots,  83  N.  Y. 
100. — Followed  in  Hoag  v.  Greenwich, 
133  N.  Y.  152. 

Under  the  provision  of  the  N,  Y.  Town 
Bonding  Act  of  1869  (chap.  907,  Laws  of 
1869),  giving  to  the  judgment  of  a  county 
judge  authorizing  the  bonding  of  a  town 
and  the  record  thereof  "  the  same  force 
and  effect  as  other  judgments  and  records 
in  courts  of  record  in  this  state,"  the  usual 
legal  presumptions  attending  adjudications 


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MUNICIPAL   AND    LOCAL    AID,  72,  73. 


of  courts  of  record  attach  to  such  a  judg- 
ment, and  the  burden  of  proving  a  hick  of 
jurisdiction  in  tiie  county  judge  rests  upon 
a  party  asserting  it.  //oa^  v.  Greenwich, 
133  .V.  ]'.  152.  30  A'.  E.  Rep.  842,  44  A'.  J'. 
S.  R.  519. 

Commissioners  duly  appointed  pursuant 
to  said  act  became  by  force  of  tlie  judgment 
of  the  county  judge  tlie  agents  of  tlie  town, 
autliorized  to  borrow  the  sum  specitied,  but 
restricted  as  to  the  terms  of  credit.  Hoag 
V.  Greemvieh,  133  A^.  Y.  152,  30  A'.  E.  Rep. 
842,  44  A'.  Y.  S.  R.  519.— Distinguishing 
Gould  7'.  Sterling,  23  N.  Y.  456 ;  Horton  v, 
Thompson,  71  N.  Y.  513. 

Tlie  Tenn.  Act  of  1851-52,  ch.  117,  allows 
county  courts  in  the  respective  counties 
through  which  a  railway  or  railways  have 
been  or  shall  be  located,  etc.,  to  subscribe 
stock  in  such  railroad  companies  through 
their  chairman.  Campbell  County  v.  Kno.v- 
vtlle  <S^  A'.  R.  Co.,  6  Coldw.  {Tenn.)  598. 

V.  THE  POWER   TO  8UBSCBIBE. 

72.  In  general.* — Aid,  as  fostering  a 
public  use,  may  be  extended  to  the  con- 
struction of  a  railroad,  by  means  of  the 
power  of  eminent  domain  or  of  subscription 
to  capital  stock,  and  by  donation  made  by 
cities  and  other  political  subdivisions  of  the 
state,  under  the  authority  of  the  legislature. 
Stockton  &>  V.  R.  Co.  v.  Stockton,  41  Cal. 
147,  3  Am.  Ry.  Rep.  102. 

It  is  no  impediment  to  granting  aid  by  a 
township  that  it  includes  a  city  which  is  in 
debt  to  the  extent  permitted  by  the  consti- 
tution. 'Irwin  V.  Lowe,  89  Ind.  540. 

The  fact  that  several  of  the  aldermen  and 
common  councilmen  of  a  city  were,  at  the 
time  the  city  entered  into  a  contract  to  sub- 
scribe to  the  stock  of  a  railroad,  stockhold- 
ers in  the  railroad,  does  no\.per  se  invalidate 
the  contract.  Gibbons  v.  Mobile  &■*  G.  N.  R. 
Co.,  36  Ala.  410. 

The  power  of  a  county  to  take  stock  in  a 
company  organized  for  the  purpose  of  con- 
structing a  railroad,  or  other  public  improve- 
ments through  the  same,  having  been  rec- 
,  ognized  at  different  times  by  a  majority 
of  this  court,  it  may  be  regarded  as  settled. 
McMillen  v.  Lee  County  Judge,  6  Iowa  391. 

*  Power  of  municipalities  to  subscribe  in  aid 
of  railroads,  see  note,  15  Am.  &  Eng.  R.  Cas. 
60s. 

Consolidation,  change  of  name,  etc.,  as  affect- 
ing power  of  municipal  corporations  to  issue 
bonds  in  aid  of  railroads,  see  note,  5  L.  R.  A. 
728. 


Two  tatutcsauthoiized  the  county  courts 
of  certain  counties  to  subscribe  to  railroad 
stock,  and  to  cause  patents  to  be  issued  to 
certain  swamp  lands,  one  upon  condition 
and  the  other  without  condition.  The  sub- 
criptions  were  made,  and  the  patents  were 
issued,  reciting  the  former  act,  but  failing  to 
recite  that  the  condition  had  been  complied 
with.  Held,  tliat  the  orders  and  patents 
were,  nevertheless,  valid.  Chouteau  v.  Al- 
len, 70  Mo.  290. 

A  railroad  charter  gave  cities  the  right 
to  subscribe  to  the  stock,  and  provided  that 
the  charter  should  be  forfeited  if  the  road 
"•as  not  commenced  and  completed  in  a 
g  veil  time.  Afterwards  acts  were  passed 
e.xtending  this  time.  Held,  that  the  privi- 
lege of  subscribing  was  also  extended. 
Com.  ex  rel.  v.  Pittsburgh,  ^\  Pa.  St.  278.— 
Followed  in  Seybert  v.  Pittsburg,  i  Wall. 
(U.  S.)  272. 

73.  No  inlierent  or  implied  riglit 
to  siiliscribo.—  A  tnuiiicip^il  corporation 
possesses  no  powers  except  such  as  are  given 
expressly  or  by  necessary  implication  ;  and 
it  has  no  power,  without  express  authority, 
to  subscribe  to  the  stock  of  a  railroad  or 
plank-road  company.  Chisholm  v.  Mont- 
gomery, 2  Woods  (  U.  S.)  584.  People  ex  rel. 
v.  Mitchell,  35  N.  Y.  551  ;  affirming  \l  Barb. 
208, 

Nor  to  mcur  debts  or  borrow  money  to 
enable  such  corporation  to  become  a  sub- 
scriber to  the  stock  of  a  railway  company. 
Such  a  power  must  be  conferred  by  express 
legislative  grant.  Hancock  v.  Chicot  County, 
32  Ark.  575. 

If  empowered  so  to  do,  it  must  conform 
to  the  conditions  prescribed  in  the  law. 
The  board  of  supervisors  is  made  by  law  the 
instrumentality  of  the  county,  but  its  power 
does  not  come  into  existence  except  upon 
certain  conditions,  which  are  of  the  nature  of 
conditions  precedent.  Hawkins  v.  Carroll 
County  Stiplrs,  50  Miss.  735.  — Followku 
IN  Wells  V.  Pontotoc  County  Sup'rs,  102 
U.  S.  625. 

The  people  of  a  county,  in  their  primary 
capacity,  have  no  authority  under  the  law 
to  make  a  contract  of  subscription  binding 
upon  the  county ;  the  board  of  county  com- 
missioners, pursuant  to  the  authority  dele- 
gated by  such  vote,  must  enter  into  the 
contract  of  subscription  before  either  the 
county  is  compellable  by  mandamus  to  sur- 
render its  bonds,  or  the  railway  company  to 
deliver  its  stock.     People  ex  rel,  v.  Pueblo 


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MUNICIPAL  AND   LOCAL  AID,  74-70. 


563 


Country  Com'rs,  2  Colo.  360,  20  Am.  Ky.  Rep. 

The  Tenn.  Act  of  January  23,  1S71,  does 
not  confer  on  municipal  corporations  the 
power  to  subscribe  to  the  stock  of,  or  loan 
their  credit  to,  any  corporation,  or  to  be- 
come a  stockholder  therein  with  others. 
Kclleyv.  Milan,  127  U.S.  139,  8  Sup.  Ct. 
Rtp.  I  loi.— Followed  in  Norton  v.  Dy- 
ersburi;,  127  U.  S.  160. 

74.  Power  must  beiexpressly  c«ii- 
t«*ri"«i<l.* — The  subscription  of  a  municipal 
corporation  to  the  capital  stock  of  a  railroad 
company,  unless  authorized  by  legislative 
autliority,  is  not  valid  and  binding  on  the 
coriioration.  Mississippi,  O.  &•  A'.  R.  R.  Co. 
V.  Mayor,  etc.,  of  Camden,  23  Ark.  300. 

The  right  of  railroad  companies  to  ask 
from  local  communities  assistance  involv- 
ing the  necessity  of  taxation  will  not  be 
enlarged  by  construction.  Privileges  of 
this  character  are  in  derogation  of  individ- 
ual rights.  They  will  not  be  implied,  but 
must  be  clearly  and  unmistakably  granted. 
But  when  this  has  been  don  the  judiciary 
cannot  interfere  to  defeat  the  legislative 
will.  Tyler  v.  FJisabethtown  &'  P.  R.  Co., 
f)  lUtsh  (Ky.)  510. 

The  grant  of  power  to  a  municipality  to 
subscribe  to  the  stock  of  a  private  corpora- 
tion is  the  delegation  of  an  extraordinary 
power,  and  should  not  be  extended  beyond 
the  fair  import  of  the  words  used.  Without 
legislative  sancti  )n  the  assent  of  a  majority 
of  the  voters  will  not  authorize  a  munici- 
pality to  make  such  a  subscription.  Lewis 
v.  Bourbon  County  Com'rs,  12  Kan.  186. — 
DiSAPPROVKU  IN  Block  V.  Bourbon  County 
Com'rs,  99  U.  S.  686. 

The  county  commissioners  of  Philadel. 
phia  county  have  no  power,  without  the 
sanction  of  the  county  board,  to  subscribe 
for  stock  in  the  Sunbury  &  Erie  R.  Co. 
by  virtue  of  the  act  of  Feb.  10,  1852,  author- 
izing the  corporate  and  constituted  author- 
ities of  any  municipal  or  other  corporation 
to  subscribe  to  the  same.  Brown  v.  Phila- 
delphia County  Com'rs,  21  Pa.  St.  37, 

A  clause  in  the  charter  of  a  railroad  com- 
pany which  says,  "  It  shall  be  lawful  for  all 
persons  of  lawful  age,  or  for  the  agent  of 
any  corporate  body,  to  subscribe  to  the  cap- 
ital stock  of  s'lid  company,"  manifestly  re- 
fers to  private  corporations,  and  confers  no 

*  Power  to  issue  municipal  aid  bonds  must  be 
express,  see  note,  15  Am.  &  Eno.  R.  Cas.  621. 


power  upon  niunicipaf  corporations  to  sub- 
scribe for  such  stock.  Campbell  v.  Paris  &* 
D.  R.  Co.,  71  III.  611. — Followed  in  East 
Oakland  Tp.  v.  Skinner,  94  U.  S.  255. 

Where  a  statute  authorizes  suliscriptions 
by  a  county  to  the  stock  of  a  railroad  com- 
pany, subject  to  the  restriction,  that  the 
"amount"  should  be  designated  by  the 
grand  jury,  a  recommendation  by  the  grand 
jury  of  a  subscription  not  exceeding  a  cer- 
tain amount  confers  upon  the  commis- 
sioners no  authority  to  make  any  subscrip- 
tion whatever.  Friclc  v.  Mercer  County,  138 
Pa.  St.  523,  21  Atl.  Rep.  6. 

The  provisions  of  the  Tenn.  C-^nstitution 
of  1870,  §  29,  that  no  municipa  shall  be- 
come a  stockholder  in  any  corporation,  or 
loan  its  credit  thereto,  unless  upon  the  as- 
sent of  three  fourths  of  the  voters  thereof, 
operate  as  a  direct  prohibition  on  the  mu- 
nicipalities, but  grant  no  affirmative  power, 
or  power  to  act  without  enabling  legisla- 
tion. Norton  v.  Brownsville  Com'rs,  129 
U.  S.  479,  9  Sup,  Ct.  Rep.  322. 

A  provision  in  a  village  charter  authoriz- 
ing the  trustees,  when  in  their  opinion  the 
interests  of  the  village  require  the  expen- 
diture of  money  "  for  an  extraordinary  or 
s  lecial  purpose,"  to  submit  the  question  of 
raising  money  therefor  by  taxation  to  a  vote 
of  the  electors,  refers  only  to  strictly  mu- 
nicipal purposes,  and  does  not  authorize  the 
raising  of  money  to  aid  in  the  construction 
of  a  railway.  Perrin  v.  Ne7v  London,  67 
Wis.  416,  30  N.   W.  Rep.  623. 

A  provision  in  a  railroad  charter  provided 
that  the  corporation  should  cause  books  to 
be  opened  for  subscriptions  to  the  capital 
stock,  and  "  it  shall  be  lawful  for  all  persons 
of  lawful  age,  or  for  the  agent  of  any  corpo- 
rate body,  to  subscribe  any  amount  to  the 
capital  stock  of  said  company."  Held,  not 
to  authorize  a  municipal  subscription  to 
such  stock.  East  Oakland  Tp.  v.  Skinner,  94 
U.  S.  255.— Followed  in  Campbell  t/.  Paris 
&D.  R.  Co..  71  111.  61 1. 

75.  A  general  (fraiit  of  power  not 
limited  to  cities  then  incorporated.— 
Where  a  legislative  charter  authorizes  "  any 
incorporated  town  or  city"  in  certain  coun- 
ties to  subscribe  to  the  stock  of  the  road, 
the  power  is  not  limited  to  towns  and  cities 
then  incorporated,  Lewis  v.  Clarendon,  5 
Dill.(U.  5.)  329. 

70.  May  vote  aid  nnder  authority 
of  preneral  statute.— A  city  acting  under 
a  special  charter  may  lawfully  vote  a  tax  in 


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MUNICIPAL   AND   LOCAL  AID,  77-70. 


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aid  of  a  railroad,  notwithstanding  the  pro- 
vision of  Iowa  Laws  of  1876,  ch.  116,  that 
"  no  general  laws,  as  to  powers  of  cities 
organized  under  the  General  Incorporation 
Act,  shall  in  any  manner  be  construed  to 
iifTcct  the  charters  or  laws  of  cities  organized 
under  special  charters  unless  they  shall 
have  special  reference  to  such  cities."  Barie- 
iiifycr  V.  l\ohlfs,  71  Imua  582,  32  N.  W.  Rep. 

An  incorporated  town  in  Illinois  having 
the  usual  powers  of  municipal  corporations 
is  a  village  within  the  meaning  of  a  law  au- 
thorizing "any  village,  city,  county,  or 
township  "to  subscribe  to  the  stock  of  a 
railroad.  Enfield  \.  Jordan,  119  U.  S.  680, 
7  Si(/>.  67.  A'lp.  358.— Approving  Martin  v. 
People  ex  rel.,  87  111.  524.  Disapproving 
Welch  V.  Post,  99  111.  471. 

77.  By  wliuiii  exercised— Cities  of 
third  class.— Kan.  Comp.  Laws,  187.  §  4, 
which  provides  that  cities  of  the  third  class 
shall  remain  a  part  of  the  corporate  limits 
of  the  townships  in  which  they  are  situated, 
does  not  exclude  such  cities  from  the  power 
to  subscribe  to  railroad  stock  and  issue 
their  bonds  in  payment.  Bard  v.  Augusta, 
30  Ffd.  Rep.  906. 

And  Kan.  Laws  of  1876,  ch.  107,  as 
amended  in  1877,  by  express  provision  au- 
thorizes '•  any  city  "  to  issue  its  bonds  in  aid 
of  railways,  which  includes  cities  of  the  third 
class.     Bard  v.  Augusta,  30  Fed.  Rep.  906. 

In  1 881  a  city  of  the  third  class  had  the 
power,  under  certain  terms  and  conditions, 
and  within  certain  limitations,  to  subscribe 
to  the  capital  stock  of  a  railroad  company, 
and  to  issue  its  bonds  in  payment  for  the 
stock,  although  the  city  may  have  been  a 
portion  of  a  municipal  township,  which 
tf)wnship  had  already  subscribed  for  all  the 
stock  and  issued  all  the  bonds  in  aid  of  rail- 
roads which  it  had  the  power  to  subscribe 
for  or  issue.  Iota  v.  Merriman,  46  Kan.  49, 
26  Pac.  Rep.  485. 

An  authority  given  to  the  city  of  Pitts- 
burgh to  subscribe  for  the  stock  of  a  railroad 
company  is  properly  exercised  by  the  mayor, 
aldermen,  and  citizens  of  Pittsburgh,  which 
is  the  corporate  title  of  the  city.  Com.  ex 
rel.  V.  Pittsburgh,  34  Pa.  St.  496. 

78.  Powerofcitycoiincil  and  coun- 
ty commissioners.— When  a  city  has 
entered  into  an  agreement  with  a  railroad  to 
issue  bonds  to  aid  in  its  construction,  and  an 
ordinance   has  been    passed   in  pursuance 


thereof  and  approved  by  the  voters,  the  city 
council  cannot  wtiivc  or  alter  the  time,  terms, 
or  conditions  thereof.  Hodgmanv.  Chicago 
&^  St.  P.  R.  Co  .  20  Minn.  48  (Gil.  36). 

It  is  within  the  scope  of  the  authority  of 
the  board  of  county  commissioners  to  deter- 
mine whether  an  election  has  been  had  au- 
thorizing them  to  subscribe  stock  in  a  rail- 
road company,  and  it  is  also  within  the  scope 
of  their  authority  to  subscribe'  such  stock 
when  such  election  has  been  held,  and  to 
make  all  the  necessary  orders  with  reference 
to  the  same.  Laws  1865,  p.  41 ;  Laws  1S66, 
p.  72 ;  Laws  1867,  p.  39 ;  Gen.  St.  S92. 
State  e.v  rel.  v.  Allen,  5  Kan.  213. 

It  is  not  necessary  that  the  petition  in  this 
case  should  state  that  such  el  lion  was  ac- 
tually held,  or  that  a  niajori  _  of  the  legal 
voters  at  such  election  voted  in  favor  of  sub- 
scribing such  stock,  and  issuing  the  bonds  of 
the  county  in  payment  therefor.  The  peti- 
tion shows  that  the  board  found  or  deter- 
mined such  to  be  the  facts,  and  that  is  all 
that  is  necessary  in  the  premises.  It  was  the 
duty  of  the  clerk  to  record  these  proceed- 
ings, whether  he  considered  them  true  or 
untrue,  legal  or  illegal.  State  ex  rel.  v. 
Allen,  5  Art«.  213. 

Having  made  a  contract  of  subscription 
and  delivered  it  to  the  president  of  the  rail- 
road, the  commissioners  exhausted  their 
power,  and  had  no  authority  to  make  another 
subscription  upon  different  terms.  Danville 
v.  Montpelier  &*  St.  J.  R.  Co.,  43  Vt. 
144. 

70.  Express  power  conferred  in 
city  charter. — A  railroad  is  a  "  road  " 
withinthe  meaning  of  a  provision  in  a  city 
charter  authorizing  the  Council  "to  take 
stock  in  any  chartered  company  for  making 
roads  to  said  city."  Evansville,  I.  6^  C.  S. 
L.  R.  Co.  V.  Evansville,  15  Ind.  395. 

The  common  council  would  have  no 
power  to  subscribe  at  all  in  the  absence  of 
the  petition  provided  for  in  the  charter  ;  but 
when  the  power  to  subscribe  is  conferred  by 
the  petition,  the  mode  in  which  it  is  to  be 
exercised,  as  to  the  time  and  mode  of  pay- 
ment, must  necessarily  be  left,  in  a  measure, 
to  the  discretion  and  judgment  of  the  com- 
mon council.  Evansville,  I.  &*  C.  S.  I..  R. 
Co.v.  Evansville,  15  Ind.  395.— Approved 
IN  Venice  v.  Murdock,  92  U.  S.  494.  Dis- 
tinguished IN  Noble  V.  Vincennes,  42  Ind. 
125.  Reviewed  in  State  ex  rel.  v.  School 
Dist.  No.  4,  13  Neb.  82. 


MUNICIPAL   AND   LOCAL  AID   80,81. 


5G5 


VI.  PETITION  AND  CONSENT  OF  TAX- 
PATEHS. 

I.  Petition. 

80.  In  general. — The  president  of  the 
board  of  directo'-s  of  a  railroad  is  author- 
ized to  present  a  petition  of  voters  of  tlie 
CO  ity  to  the  board  of  Fupervisors,  request- 
ing; a  vote  on  subscribing  to  the  road,  when 
such  president  acts  under  a  resolution  of  the 
directors.  SucH  petition  is  regular,  and 
the  supervisors  cannot  refuse  it.  People 
ex  rel.  v.  Logan  County  Sitp'rs,  45  ///.  162. 

Where  a  railway  charter  provides  that 
when  ten  legal  voters  of  any  city,  county, 
or  town  shall  present  to  the  clerk  thereof  a 
written  application  requesting  an  election 
to  determine  whether  a  subscription  or  do- 
nation shall  be  made  to  the  company,  such 
clerk  shall  receive  and  file  the  application 
and  call  an  election,  it  must  appear  that  the 
application  was  delivered  to  tne  clerk  and 
was  signed  by  ten  legal  voters  Proof  that 
the  application  was  signed  by  fen  citizens  is 
not  sufficient,  as  a  citizen  may  not  be  a  legal 
voter.  People  ex  rel.  v.  OUtown  Siip'rs, 
88  ///.  202,  21  Am.  Py.  Rep.  297. 

The  proviso  in  Ind.  Act  of  1867,  §  60,  re- 
lates to  donations  by  cities  to  railroads,  and 
not  to  subscriptions  of  stock,  to  authorize 
which  a  petition  of  a  majority  of  the  resi- 
dent freeholders  is  not  necessary.  Thompson 
v.  Peru,  29  Ind.  305. 

Iowa  Code,  §  1 14,  providing  that  a  county 
judge  may  submit  at  a  regular  or  special 
election  the  question  whether  money  may 
be  borrowed  to  aid  in  the  erection  of  public 
buildings,  or  whether  the  county  will  con- 
struct or  aid  in  constructing  any  road  or 
bridge  which  tnay  call  for  an  extraordinary 
expenditure,  is  sufficiently  complied  with 
where  a  large  number  of  the  inhabitants  of 
the  county  sign  a  petition  requesting  that 
the  question  whether  the  county  will  aid  in 
building  a  railroad  shall  be  put  to  a  vote  of 
the  people,  and  the  county  judge  pronounces 
favorably  upon  the  proposition,  issues  his 
proclamation,  and  the  question  is  submitted 
to  the  voters,  all  the  proceedings  being  reg- 
ular. The  term  "  any  road,"  as  used  in  the 
statute,  is  not  restricted  to  common  roads, 
streets,  and  lanes,  but  may  embrace  rail- 
roads. Dubuque  County  v.  Dubuque  &'  P. 
R.  Co.,  4  Greene  (Iffiva)  i. 

The  N.  Y.  Act  of  May  18, 1869,  authorized 
railroad  aid  bonds  to  issue  on  the  petition 
of  a  "  majority  of  the  taxpayers."     In  1871 


this  statute  was  amended  so  as  to  provide 
for  a  petition  by  a  "  majority  of  the  tax- 
payers, not  including  those  taxed  for  dogs 
or  highway  tax  only."  Held,  that  bonds  is- 
sued after  1871,  under  the  terms  imposed  by 
the  law  of  1869,  were  void.  Rich  v.  Ments 
Tp.,  134  U.  S.  632,  10  Sup.  Ct.  Rep.  610.— 
Following  People  ex  rel.  v.  Smith,  55  N. 
Y.  135  ;  Wellsborough  v.  New  York  &  C.  R. 
Co.,  76  N.  Y.  182;  Metzger  v.  Attica  &  A. 

R.  Co.,  79N-  Y.  171- 

A  mistake  in  a  petition,  asking  for  an  ap- 
propriation for  a  railroad  by  a  county  board 
instead  of  by  a  township,  does  not^vitiate  a 
tax,  where  it  appears  that  no  one  in  interest 
was  misled  or  deceived  by  the  mistake. 
Scott  V.  Hansheer,  94  Ind.  i.  Jussen  v.  Lake 
County  Com'rs,  95  Ind.  567. 

Where  a  township  is  petitioned  to  vote  aid 
to  a  railroad,  the  tax  is  not  invalid  because 
a  city  included  within  the  township  votes, 
as  such  city  is  a  part  of  the  township  and 
is  entitled  to  vote.  Scott  v.  Hansheer,  94 
Ind.  I. 

When  a  petition  for  a  municipal  election 
upon  the  question  of  aiding  in  the  construc- 
tion of  a  railroad  describes  the  proposed 
route  of  the  road  as  "northwestwardly  to 
Anamosa  or  to  a  point  nearer,"  and  the 
notice  describes  it  as  "westwardly  to  Ana- 
mosa or  to  a  point  nearer,"  the  variance  is 
immaterial.  Bartemeycr  \.  Rohlfs,T\  Iowa 
582,  32  A^.  \V.  Rep.  673. 

Under  N.  Y.  Act  of  1869  to  bond  a  town 
to  aid  in  the  construction  of  a  railroad,  the 
petition  must  state  whether  the  money  to 
be  raised  is  to  be  invested  in  railroad  stock 
or  in  bonds.  A  mere  statement  that  it  is  to 
be  invested  in  stocks  or  bonds,  or  both,  is 
defective.  People  ex  rel.  v.  Van  Valken- 
bitrgh,  63  Barb.  {N.  K.)  105. 

81.  Knell  petitioner  ninst  sign  his 
own  name.  —  The  names  of  petitioners, 
under  N.  Y.  Act  of  1869,  ch.  907,  must  be 
personally  subscribed.  Signing  by  an  agent 
is  not  valid.  People  ex  rel.  v.  Smith,  45  A''. 
Y.  772;  affirming  3  Lans.  291. 

In  proceedings  under  said  act  of  1869  it 
must  appear  that  the  taxpayers  who  signed 
the  petition  signed  personally,  or  were  pres- 
ent when  their  names  were  signed,  or  written 
permission  to  sign  their  names  must  be 
produced.  Where  other  persons  sign  for 
the  taxpayers,  oral  authority  to  sign  proved 
by  themselves  is  not  enough.  These  are 
jurisdictional  requirements  which  are  not 
waived  by  failing  to  object  before  the  county 


w 

> : 


I 


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5CG 


MUNICIPAL    A\D    LOCAL   AID,  82-85. 


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judge,  and  an  objection  may  be  made  at 
any  step  of  the  proceedings.  People  ex  rel. 
V.  Hulbert,jfi  N.  Y.  no;  reversing;  59  Barb. 
446.  People  ex  rel.  v.  Peck,  42  How.  Pr. 
(.V.  Y.)  425. 

82.  Who  are  entitled  to  sign.— Un- 
der N.  Y.  Act  of  1869  every  ()erson  whose 
name  appears  on  tlie  assessment  roll  has 
the  riglit  to  give  his  consent  or  sign  a  peti- 
tion in  favor  of  bonding  tlie  town,  whetiier 
he  owns  any  property  in  the  town  at  the 
time  lie  signs  the  consent,  or  whether  he 
resides  at  tiie  time  in  tlie  town  or  not. 
People  ex  rel.  v.  Franklin,  5  Lans.  {N.  Y.) 
129. 

h  is  not  necessary  that  the  petitioners 
should  be  owners  of  the  property  for  which 
I'ley  are  taxed.  If  they  represent  it  in  any 
capacity,  and  are  assessed  on  the  tax  list  as 
so  .  cpresenting  it,  then  they  are  taxpayers 
and  may  become  petitioners.  People  ex  rel. 
\.Httlbert,  59  /Jarb.{JV.  Y.)  446;  reversed  on 
anoi Iter  point  in  46  N.  Y.  1 10. 

Under  Wis.  Rev.  St.  §  946,  providing  for 
the  acceptance  through  a  petition  of  the  tax- 
payers of  a  municipality  of  the  proposition 
of  a  railroad  company  for  a  subscription  to 
its  stock,  the  persons  resident  in  the  mu- 
nicipality on  the  day  when  the  petition  may 
first  be  presented,  and  whose  property  was 
assessed  for  taxation  on  the  last  assessment 
roll,  except  idiots,  insane  persons,  and  mi- 
nors, are  those  entitled  to  sign  such  petition. 
State  ex  rel.  v.  Blackstone,  63  Wis,  362,  24 
N.  IV.  Rep.  Ti. 

But  in  determining  whether  the  petition 
has  been  signed  by  a  majority  of  the  tax- 
payers so  resident,  idiots,  insane  persons,  and 
minors  are  to  be  counted.  State  ex  rel.  v. 
Blackstone,  63  Wis.  362,  24  N.  W.  Rep. 
72. 

83.  Signatures  need  not  all  be  on 
one  paper. — Under  the  N.  Y.  Act  May 
12,  i87r,  ch.  925,  a  petition  to  authorize  a 
town  to  issue  bonds  in  aid  of  the  construc- 
tion of  a  railroad,  it  is  not  required  that  the 
signatures  of  the  petitioners  nor  the  con- 
ditions imposed  should  be  stated  in  a  single 
paper  or  petition,  but  may  be  subscribed  to 
and  inserted  in  several  papers  or  petitions. 
Calhoun  v.  Delhi  &>  M.  R.  Co.,  28  Hun  {N. 
y-)  yi9<  64  Ho7v.  Pr.  291. 

The  act  does  not  require  the  signatures 
to  be  appended  to  a  single  heading,  and  the 
presentation  of  nineteen  papers  substan- 
tially the  same  at  the  same  moment  is  to 
be  deemed  the    presentation   of   a  single 


petition.     Calhoun  v.  Delhi  ^  AI.  R.  Co.,  28 
Hun  (N.  Y.)  379,  64  /Io7v.  Pr.  291. 

84.  Signatures  procured  by  fraud. 
—Signatures  of  petitioners  procured  by  a 
bribe  are  valid,  if  they  were  otherwise  en- 
titled to  sign.  People  ex  rel.  v.  Franklin,  5 
Lans.  (A'.   )'.)  129. 

But  it  might  be  otherwise  if  a  taxpayer 
should  be  induced  to  sign  by  misrepresenta- 
tion as  to  the  nature  of.  the  instrument 
signed,  or  as  to  the  company  to  be  bene- 
fited, and  has  had  no  opportunity  to  inform 
himself  of  the  contents  of  the  petition. 
People  ex  rel.  v.  Franklin,  5  Lans.  (A'.  Y.) 
129. 

Where,  in  the  course  of  the  canvassing 
and  electioneering  to  induce  a  sufficient 
number  of  freeholders  of  a  certain  town  to 
become  signers  of  a  petition,  certain  repre- 
sentations, promises,  and  inducements  were 
falsely  and  fraudulently  made  and  held  out 
by  the  railroad  company  to  such  freeholders, 
and  which  resulted  in  such  freeholders  be- 
coming signers  to  said  petition — held,  that 
such  representations,  promises,  and  induce- 
ments, although  made  at  a  time  and  meet- 
ing previous  to  the  time  at  which  said  free- 
holders became  signers,  were  nevertheless 
a  part  of  tiie  res  gesta.  Wullenivaber  v. 
Dunigan,  33  Neb.  ^TJ,  50  A^.  W.  Rep.  428. 

Where  two  agents  of  a  railroad  company 
were  engaged  in  the  common  purpose  of 
soliciting  the  freeholders  of  a  town  to  be- 
come signers  to  a  petition,  and  one  of  said 
agents  made  certain  pledges  and  promises, 
and  held  out  certain  inducements  to  said 
freeholders,  who  shortly  afterwards  were  by 
the  other  of  the  said  agents  presented  with 
said  petition  and  signed  the  same— ^t7</,  that 
such  pledges,  promises,  and  inducements 
were  a  part  of  the  res  gesta.  Wullenivaber 
V.  Dunigan,  33  Neb.  477,  50  A^.  W.  Rsp.  428. 

85.  Signatures  procured  on  Sun- 
day.— Where  a  town  board  of  supervisors 
is  authorized  by  law  to  issue  bonds  in  aid 
of  a  railroad  only  upon  presentation  of  a 
petition  therefor  signed  by  a  certain  num- 
ber of  taxpayers  of  the  town,  the  procuring 
and  affixing  of  such  signatures  on  Sunday 
is  "business,"  and  is  unlawful,  and  confers 
no  authority  upon  the  supervisors  to  issue 
such  bonds.  De  Forth  v.  Wisconsin  &^  AT. 
R.  Co.,  5  Am.  <S-  Ettg.  R.  Cas.  28,  52  IVis. 
320,  9  A^.  W.  Rep.  17,  38  Ant.  Rep.  737. 

The  fact  that  plaintiff  affixed  his  signa- 
ture on  Sunday  will  not  prevent  him  from 
obtaining  an  injunction  against  the  issue  of 


J 


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I 


MUNICIPAL   AND    LOCAL   AID,  80-88. 


507 


•:( 


the  bonds  on  the  groiiiitl  that  the  requiicd 
numbc  of  signatures  were  not  affixed  on 
any  secular  day,  where  he  did  not  on  any 
secular  day  autiiorize  the  presentation  of 
such  petition  to  the  supervisors,  and  where 
nothing  had  been  done  by  the  railr(;ad 
company  to  earn  the  bonds  before  it  was 
notified  that  plaintiff  would  resist  their 
issue  and  denied  the  validity  of  such  sij^na- 
ture.  De  Forth  v.  Wisconsin  &*  A/,  A'.  Co., 
5  //;«.  &*  Eng.  R.  Cas.  28,  52  Wis.  320,  9 
N.  W.  Ri'P.  17,  38  Am.  Rep.  737. 

8(1.  Proof  of  Mit;:iiatiircs. — Under  the 
N.  Y.  Act  of  1866,  ch.  398,  to  facilitate  the 
construction  of  the  New  York  &  Oswego 
Midland  railroad,  §  2,  making  the  affidavits 
of  the  assessors  annexed  to  the  consents 
of  taxpayers  evidence  of  the  facts  therein 
contained,  does  not  make  such  affidavits 
conclusive.  People  ex  rel.  v.  Bro^vii,  55  N. 
Y.  180.— DiSTiNGUiSHiMG  Starin  v.  Genoa, 
23  N.  Y.  439. — Applied  in  Cagwin  v.  Han- 
cock, 5  Am.  &  Eng.  R.  Cas.  1 50,  84  N.  Y. 

332. 

87.  Petition  must  sliow  that  tlie 
rvQiiiretl  proportion  of  taxpayers 
Nig:iie<l  it. — In  a  proceeding  to  bond  a 
town  to  aid  a  railroad,  the  burden  is  on  the 
petitioners  to  show  that  a  majority  of  the 
taxpayers  have  signed  the  petition,  as  re- 
quired by  the  statute.  People  ex  rel.  v.  Van 
Valkenburgh,  63  Bard.  (N.  V.)  105. 

Under  N.  Y.  Act  of  1869  a  petition  is 
fatally  defective  unless  it  states  that  tlie 
subscribers  constitute  a  majority  of  the 
taxpayers,  and  represent  a  majority  of  the 
taxable  property  as  represented  by  the  last 
assessment  roll.  People  ex  rel.  v.  Httghitt, 
5  Lans.  {N.  Y.)  89. 

Excluding  those  taxed  for  dogs  or  high- 
way tax  only.  Mentz  v.  Cook,  108  N.  Y. 
504,  15  N.  E.  Rep.  541,  II  Cent.  Rep.  319. — 
Limiting  Hills  v.  Peekskill  Sav.  Rank,  lor 
N.  Y.  490.^  Wcllsborough  v.  New  York  (S-  C. 
R.Co„76N.  Y.  182.— Following  Falconer 
V.  Buftalo  &  J.  R.  Co.,  69  N.  Y.  491.— Ap- 
plied IN  Cagwin  v.  Hancock.  5  Am.  &  Eng. 
R.  Cas.  150,  84  N.  Y.  532.  Followed  in 
Rich  V.  Mentz  Tp.,  134  U.  S.  632,  10  Sup. 
Ct.  »\ep.  610.  Rexmewed  in  Whiting  v. 
Potter.  18  Blatchf.  (U.  S.)  16$.— People  ex 
rel.  V.  Smith,  55  iV.  Y.  135.— Distinguished 
IN  Hills  7/.  Peekskill  Sav.  Bank,  loi  N.  Y. 
490,  5  N.  E.  Rep.  327.  Followed  in  Rich 
V.  Mentz  Tp  ,  134  U.  S.  632,  10  Sup.  Ct.  Rep. 
610. — Rich  V.  Ments,  19  Fed.  Rep.  725. — 
Following  Cowdrey  v.  Caneadea,  16  Fed. 


Rep.  532.  ()\  KKRUi.iNG  Rich  v.  Mentz, 
18  Fed.  Kep.  52,  21  Blatclif.  (U.  S.)  492; 
Cnaiidkr  v.  .Attica,  iS  Fed.  Rep.  299,  21 
Blatchf.  (U.  S  )  4yy. 

In  the  petitio:i  presented  to  the  county 
judge  in  proceedings  to  bond  a  town  under 
the  Town  Bonding  Act  of  1869  (ch.  907, 
Laws  of  1869),  the  petitioners  described 
themselves  as  "  renresenting  a  majority  of 
the  taxpayers  of  the  town."  The  affidavit 
of  verification  attached  to  the  petition 
stated  that  "  the  persons  signing  said  peti- 
tion are  a  majority  of  the  taxpayers."  In 
an  action  by  the  town  to  have  bonds  of  the 
town,  issued  by  the  commissioners  appoint- 
ed in  said  proceedings,  adjudged  void,  and 
that  they  be  delivered  up  and  canceled — 
held,  that  the  word  "  representing  "  did  not 
necessarily  import  that  the  majority  did  not 
themselves  sign,  but  did  it  through  agents 
representing  such  taxpayers ;  that  it  might 
be  treated  as  having  reference  to  the  term 
"  majority,"  not  to  the  persons  constituting 
it;  and,  as  it  appears  that  the  word  was 
used  in  various  places  in  the  act  in  that 
sense,  this  was  a  legislative  interpretation 
of  it  for  the  purposes  of  the  act ;  and  so 
the  statement  was  to  be  considered  as  de- 
claring that  the  subscribers  were  a  majority 
of  the  taxpayers.  Solon  v.  Williamsburg h 
Sav.  Bank,  114  N.  Y.  122,  21  A'.  E.  Rep.  168. 

Where  a  county  election  is  ordered  under 
Kan.  Act  of  1876,  ch.  107,  as  amerided  in 
1877,  for  the  purpose  of  authorizing  the 
county  to  subscribe  to  the  stock  of  a  rail- 
way, and  to  issue  bonds  in  payment,  and 
such  election  is  ordered  upon  a  petition 
which  does  not  contain  the  names,  and  is 
not  a  petition,  of  two  fifths  of  the  resident 
taxpayers  of  the  county,  an  election  held 
thereunder  is  void  for  want  of  a  sufficient 
petition,  though  the  county  board  declares 
the  petition  sufficient.  Chicago,  K.  6^  W. 
R.  Co.  V.  Chase  County  Com'rs,  43  Kan.  760, 
23  Pac.  Rep.  1064. 

88.  Last  assessment  roll  as  a  cri- 
terion.—Under  N.  Y.  Acts  of  1869,  ch.  907, 
and  1871,  ch.  925,  the  last  assessment  roll  is 
the  criterion  for  ascertaining  whether  the 
persons  petitioning  the  county  judge  there- 
for represent  a  majority  of  the  taxpayers  of 
the  town.  People  ex  rel.  v.  Hiilbcrt,  59  Barb. 
(N.  Y.)  446;  reversed  in  46  N.   Y.  1 10. 

And  where  a  petition  is  presented  to  the 
county  judge,  under  the  above  statutes  it  is 
made  his  duty  to  determine  whether  it  con- 
forms to  the  provision  of  the  statute   re- 


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563 


MUNICIPAL   AND   LOCAL   AID,  8»,  90. 


quiring  a  majority  of  the  taxpayers,  accord- 
ing to  the  last  assessment  roll,  to  sign  it. 
/V()//f  ,:v  rcl.  V.  llulbtrt,  59  Burb.  (A'.  )'.) 
446;  reversed  ill  \(y  K.  Y.  no. 

To  enable  saiii  judge  to  discharge  that 
duty,  the  original  last-c(jnipleted  assessment 
roll  must  be  produced  before  him,  or,  in  case 
this  cannot  be  done,  secondary  evidence  of 
its  contents  given.  People  ex  rel.  v.  Sujfern, 
68  A^   J'.  321  ;  ajffirming  6  Hun  304. 

An  assessment  roll  cannot  be  said  to  be 
completed,  within  tlic  meaning  of  said  act, 
until  the  assessors  have  discharged  their 
whole  duty  in  reference  thereto.  People  ex 
rel.  v.  Suffer n,bi  N.  V.  321,  affirming  6 
Hun  304. 

Where  the  assessment  roll  in  the  hands 
of  the  collector  of  a  village  incorporated 
under  N.  Y.  Act  of  1870,  ch.  291,  which  was 
pr.>duced  before  a  county  judge,  had  no  oath 
written  thereon  or  attached  thereto,  and 
there  was  no  proof  that  it  had  in  fact  ever 
been  verified — held,  that  it  was  not  a  com- 
pleted assessment  roll,  and  was  insufficient 
i(j  authorize  the  county  judge  to  act;  and 
that  a  decision  based  thereon,  that  the  req- 
\  isite  iiiimbLr  ol  taxpayers  had  signed  the 
petition,  w.is  void.  People  ex  rel.  \.  Siiffern, 
6S  A'.  J'.  321  ;  ap/iiniing  6  Hun  304. 

The  attaciiing  of  an  affidavit  after  the 
presentation  of  the  petition  did  notcure  the 
defect :  moreover,  the  fact  that  the  roll  was 
delivered  to  the  collector,  and  that  he  had 
collected  taxes  thereon,  did  not  give  it  va- 
lidity or  make  it  a  completed  roll.  People  ex 
rcl.  V.  Stiff  em,  68  N.  V.  321  ;  affirming  6 
Hun  304. 

If  the  names  on  both  the  petition  and  the 
last  assessment  roll  are  Identical,  this  is 
prima  facie  evidence  that  the  persons  are 
the  same ;  but  in  any  event  the  petitioners 
must  be  identified  as  the  persons  named  on 
the  last  assessment  roll ;  arid  where  initials 
only  are  used,  additional  evidence  of  iden- 
tity must  be  given.  People  ex  rel.  v.  Smith, 
45  A''.  Y.  772  ;  affirming  3  Lans.  291. 

The  statutes  make  non-resident  owners 
taxpayers,  and  if  their  lands  are  properly 
taxed  they  are  entitled  to  petition  ;  but  when 
the  statute  is  not  complied  with,  and  the 
lands  in  fact  are  not  taxed  as  non-resident 
lands,  the  owners  thereof  cannot  join  in  a 
petition.  People  ex  rel.  \.  Oliver,  \  T.  &^  C. 
iN.  Y.)  570. 

89.  Witlidrawal  of  iinnies  {'roiii 
petition. — Where  a  petition  asking  a  city 
to  make  a  donation  in  aid  of  the  construc- 


tion of  a  railroad  has  been  presented  to  the 
common  council  and  referred  to  a  commit- 
tee of  tlie  council,  persons  who  signed  the 
petition  may,  by  a  remoiisiiance,  withdraw 
their  names  from  the  petition  while  tlie 
same  is  in  the  hands  of  the  committee  ;  and 
if,  after  such  withdrawal,  there  is  not  a  suf- 
ficient number  of  petitioners  asking  the  do- 
nation, the  council  cannot  make  the  same. 
A'oble  V.  Fineennes,  42  /nd.  125.— DlSTlN- 
GU1.SHING  Evansville,  I.  &  C.  S.  L.  K.  Co.  t. 
Evansville,  15  Ind.  395.— Rkvikweu  in  Ad- 
ams V.  Mayor,  etc.,  of  Kokomo,  (Ind.)  12 
Am.  &  Eng.  R.  Cas.  585. 

A  taxpayer  who  has  signed  a  petition  for 
bonding  a  town  under  the  New  York  stat- 
utes may  withdraw  his  name  at' any  time 
before  a  final  submission  of  the  caso  to 
the  county  judge  ;  and  thereafter  his  name 
and  the  taxable  property  which  he  repre- 
sents cannot  be  considered.  People  ex  rel. 
V.  Sawyer,  52  N.  Y.  296.— DlSAPPROVlNCi 
In  re  Taxpayers  of  Greene,  38  How.  Pr. 
(N.  Y.)  515.  DiSTiNGUiSHiNd  Lake  On- 
tario, A.  &  N.  Y.  R.  Co.  V.  Mason,  16  N.  Y. 
4^1.— People  ex  rel  v.  Hatch,  65  Barb.  (A'. 
Y. )  430,  I  T.  &•  C.  1 1 3.  People  ex  rel.  v. 
Wai^ner,  7  Lans.  {X.  Y.)  467.  i  7'.  &^  C.  221. 
Contra,  see  J'eople  v.  J'eck\  42  How.  Pr.  {N. 
Y.)  42,.  ///  re  Taxpayers  of  Greene,  38 
How.  Pr.  (X.  1'.)  515.  People  ex  rel  v. 
Henshaw,(i\  Barb.(X.   l'.)409. 

It  is  error  to  reject  an  offer  to  have  cer- 
tain signers  ajipear  and  withdraw  their 
consent,  upon  a  general  objection  ;  and  an 
objection  that  the  petitioners  were  not  ac- 
tually produced  cannot  be  made  first  upon 
review.  People  ex  rel.  v.  Wagner,  7  Lans. 
(N.  l'.)467,  1  T.  &'C.  221. 

Taxpayers  signing  a  petition  for  the  bond- 
ing of  a  town  cannot  withdraw  their  consent 
before  presentation  of  the  petition.  People 
ex  rel.  v.  Franklin,  5  Lans.  (N.  Y.)  129. 

»0.  Verification  of  petition.  —  Un- 
der N.  Y.  Act  of  1869,  as  amended  in  1871, 
the  verification  of  a  petition  is  a  part  of  the 
petition,  and  if  the  two  together  state  all 
the  facts  required  by  the  statute,  the  county 
judge  to  whom  it  Is  addressed  acquires  jur- 
isdiction.   Whiting  v.  Potter,  2  Fed.  Rep.  5 1 7. 

The  term  "  taxpayers  "  in  such  petition 
and  verification  will  'ie  taken  to  include 
owners  of  non-resident  lands  who  are  taxed 
as  such.    Whiting  v.  Potter,  2  Fed.  Pep.  5 1 7. 

The  verification  of  a  petition  must  cover 
all  the  allegations  contained  therein.  Angel 
V.  Hume,  1 7  Hun  {N.  Y.)  374. 


^ 


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MUNICIPAL   AND    LOCAL    AID,  1H-»;I. 


569 


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01.  Must  dcMcrilH' tilt;  <;oiiiimii\  to 
be  aided.  —  A  petition  under  New  York 
stututes  for  bunding  a  town  must  designate 
the  railroad  company  to  be  aided,  winch 
must  also  be  an  existing  incorporated  com- 
pany. People  ex  rel.  v.  Franklin,  5  Lans, 
(.V.  K)  129. 

The  New  York  Act  of  April  16,  1852,  au- 
tlinrizing  the  towns  in  Cayuga  county  to 
borrow  money  to  aid  in  constructing  a  rail- 
road, which  directed  the  money  "to  be  paid 
over  to  the  president  and  directors  of  such 
railroad  company  *  ♦  *  as  may  be  expressed 
by  the  written  assent  of  two  thirds  of  the 
resident  taxpayers,"  did  not  require  the  tax- 
payers to  designate  the  company  by  name. 
"  A  railroad  connecting  Lake  Ontario  with 
the  Susquehanna  &  Cayuga  railroad,  and 
passing  through  the  city  of  Auburn  "—held, 
a  sufficient  description.  Scipio  v.  Wright, 
101  U.  S.  665. 

Under  N.  Y.  Act  of  1871  amending  the 
law  relating  to  bonding  towns  in  aid  of  rail- 
ways, a  petition  is  defective  if  it  fails  to 
stale  that  the  railroad  company  to  be  aided 
is  a  corporation  in  the  state.  /«  re  Gor- 
ham,  43  How.  Pr.  {N.  Y.)  263, 

But  the  statutes  do  not  require  that  the 
railroad  shall  be  actually  located  in  order 
to  render  proceedings  to  bond  a  town  valid, 
or  to  justify  the  county  judge  in  directing 
the  bonds  to  be  issued  in  aid  of  the  com- 
pany. All  that  is  required  is  that  the  peti- 
tion shall  show  that  the  petitioners  desire 
that  the  municipal  corporation  shall  issue 
its  bonds  to  the  amount  named,  and  invest 
them  or  their  proceeds  in  the  stock  or 
bonds  of  a  designated  railroad  company  in 
the  state.  People  ex  rel.  v.  Peck,  42  Hoiv. 
P>:(N.   K.)425. 

The  provision  of  N.  Y.  statutes  relating 
to  bonding  towns  which  requires  that  the 
petition  shall  state  what  "  railroad  com- 
[)aiiy  in  this  state"  is  desired  to  be  aided 
is  sufficiently  complied  with  where  the  pe- 
tition names  the  company  by  its  corporate 
name,  with  the  addition  "  an  association 
formed  in  said  county  and  state."  Calhoun 
V.  Delhi  6-  M.  R.  Co.,  28  Hun  (N.  Y.)  379, 
64  How.  Pr.  291. 

The  fact  that  the  petition  asks  for  an  ap- 
propriation to  a  certain  railway  company, 
"or  its  successor  by  consolidation,"  does 
not  invalidate  the  petition  or  the  proceed- 
ings thereon  ;  but  in  such  case,  in  the  event 
of  consolidation,  the  right  to  the  appropria- 
tion will  pass  to  and  vest  in  the  consoli- 


flated  compimy.  Jii^sen  v.  Lake  County 
Cotn'rs,  95  ///(/.  567. -DisTi.VGt'lSHKU  IN 
llainilt(jn  County  ComVs  v.  State,  36  Am. 
«&  Eng.  R.  Cas.  210.  115  Ind.  64. 

\Y1,  Hlioiild  speeily  the  uiiiouiit  to 
be  ai>iin»i>i'iuted.  —  A  petition  to  the 
board  of  commissioners  of  a  county  to  make 
an  appropriation  of  money,  by  levying  a 
special  tax,  to  aid  in  the  construction  of  a 
railroad,  and  the  notices  of  election  on  the 
subject  of  the  proposed  appropriation,  must 
specify  the  amount  of  money  to  be  appro- 
priated. A  certain  per  cent,  on  the  taxable 
property  of  the  county  is  not  a  specific 
amount.  (VVorden,  J.,  dissented.)  Detroit, 
E.  A".  &*  I.  P.  Co,  V.  Bearss,  39  J  mi.  598,  10 
Am.  Ry.  Rep.  382. 

A  petition  to  a  board  of  commissioners 
to  make  an  appropriation  of  money,  by  tax- 
ation of  a  certain  township,  to  aid  in  the 
construction  of  a  railroad,  and  also  the  no- 
tice of  election,  specified  a  certain  sum,  "  or 
a  sum  equal  to  two  per  centum  of  all  taxa- 
ble property  in  said  township,"  as  the  ap- 
propriation desired.  Held,  that  the  amount 
of  the  appropriation  is  set  out  with  sufficient 
certainty.  Williams  v.  Hall,  65  Ind,  129. — 
Distinguishing  Detroit,  E.  R.  &  I.  R.  Co. 
V.  Bearss,  39  Ind.  598. 

The  petitioners  for  an  appropriation  to 
aid  in  the  construction  of  a  railroad  may 
designate  in  their  petition  whether  the 
amount  appropriated  shall  be  donated  to  the 
railway  company  or  invested  in  its  capital 
stock,  but  their  failure  to  make  such  desig- 
nation will  not  vitiate  the  petition  or  any  of 
the  proceedings  had  thereon.  Jussen  v. 
Lake  County  Com'rs,  95  Ind.  567. 

f>3.  Conditions  annexed  in  peti- 
tion.— A  petition  asking  for  an  appropria- 
tion to  aid  in  the  construction  of  a  railroad 
is  not  invalid  for  the  reason  that  it  does  not 
ask  for  the  annexing  of  conditions  to  the 
appropriation.  The  act  of  March  8,  1879 
(Acts  1879,  p.  46J,  enables  petitioners  and 
voters  to  annex  conditions  to  appropriations, 
but  does  not  compel  them  to  do  so  if  they 
do  not  desire  any  conditions.  Goddard  v. 
Stockman,  5  Am.  6^  Eng.  R.  Cas.  164,  74 
Ind.  400.— Reviewing  Indiana  N.  &  S.  R. 
Co.  V.  Attica,  56  Ind.  476. 

In  a  proceeding  under  Ind.  Act  of  May 
12,  1869,  a  petition  asking  for  an  appropria- 
tion in  aid  of  the  construction  of  a  railroad, 
upon  condition  that  the  company  locate  and 
construct  a  depot  within  the  corporate  limits 
of  a  municipality,  is  not  thereby  vitiated. 


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MUNICIPAL   AND   LOCAL   AID,  l>4-«7. 


nor  the  procccdinjjs  mulcr  the  pt-tition  ren- 
dered V(jiil.  lliltitimr  V.  Hell,  65  ///</.  445. 
— Qiro'lKl*  IN  Urocaw  v.  (iihsoii  Coiiiity 
Com'rs,  3  Am.  A  En^'.  K.  Cas.  573,  73  Iml. 
54J. 

The  |)etiti()n  required  of  taxpayers  must 
l)c  absolute  in  form;  no  power  is  t;iven  to 
them  to  mal\C  their  recpiesi  conditional  upon 
tlie  location  of  the  road  upon  a  particular 
route,  and  a  request  coupled  with  such  a 
condition  is  absolutely  void,  and  renders 
tiie  bonds  void  in  the  hands  of  bona  fidi' 
iiolders.  Craig  \.  Andis,  15  //«/.  i*'  liii^. 
K.  Cas.  662,  93  N.  Y.  405. — Following 
Troy  k  B.  R.  Co.  v.  Tibbits.  18  Barb. 
(N.  Y.)  298;  People  exrel.  v.  Adirondack 
C«.,  57  Barb.  656. 

After  the  passage  of  New  York  Act  of 
1871,  ch.  925,  amending  the  town  bonding 
law  of  1869,  petitions  are  valid,  although 
made  upon  the  express  condition  that  the 
radroad  "be  made  upon  a  certain  route" 
designated,  as  such  condition  is  sanctioned 
l)y  section  2  of  the  act.  People  ex  rel.  v. 
I'eck,  42  Ho7u.  Pr.  {N.  K)  425. 

A  petition  calling  for  an  election  to  take 
a  corporate  subscription  in  a  railway  was, 
on  the  morning  of  the  election,  altered  by 
striking  out  a  clause  tliat  the  bonds  were  to 
be  delivered  as  fast  as  the  work  on  the  road 
should  progress  within  tlie  town,  leaving 
the  statutory  condition  to  apply  that  no 
bonds  sliould  be  delivered  until  the  value  of 
the  work  on  the  road  should  equal  the 
amount  subscribed.  Held,  that,  as  the  alter- 
ation worked  no  injury  to  the  town,  it  did 
not  invalidate  the  election,  nor  the  right  of 
the  company  to  have  the  bonds  issued.  Illi- 
nois Midland  R.  Co.  v.  Barnett  Sitp'rs,  85 

///.  3'3- 

04.  Law  in  force  at  date  of  appli- 
cation controls. — The  validity  of  a  pro- 
ceeding to  bond  a  town  for  railroad  purposes 
must  be  determined  by  the  law  as  it  existed 
when  the  application  was  made  ;  and  where 
the  petitions  were  mostly  subscribed  while 
the  New  York  Act  of  1869  was  in  force,  sev- 
eral months  preceding  the  application,  dur- 
ing which  time  the  law  was  changed  by  the 
act  of  1871,  the  latter  governs.  People  ex 
rel.  V.  Peck,  42  How.  Pr.  {N.  K)  425. 

05.  Company  must  first  be  incor- 
porated.— The  statutes  relating  to  these 
proceedings  contemplate  that  the  railroad 
company  shall  be  incorporated  before  they 
can  be  lawfully  taken.  But  they  contain 
nothing  requiring  that  to  be  proved  as  a 


fai;t  before  the  county  judge,  or  to  be  stated 
with  any  special  peculiarity  in  the  petition. 
What  th?y  require  is  that  it  sliould  be  a  rail- 
road company  within  this  st.lte,  and  be 
named  in  the  petition.  I'coplc  ex  rel. 
v.  I'cck.  42  //ore.  I'r.  {.W  J'.)  4:5. 

IHi.  Doiids  iiol  to  isHiM'  till  siifli- 
ciency  of  petition  is  delerniined.— 
Till!  CfJinmon  council  must  decide  u|)i,ii  pe- 
titions to  aid  railroads  before  bonds  can 
rightfully  be  issued.  Madison  v.  Smith,  83 
Ind.  502. 

<>7.  l>eterminatioii  4»f  sunicieney 
of  petition  ii«»t  open  to  collateral  at- 
tack.— The  sudkiency  of  a  petition  for  the 
bonding  a  town,  and  of  a  notice  of  hearing, 
cannot  be  raised  in  a  collateral  action 
brought  to  restrain  the  payment  of  interest 
on  bonds  issued  in  pursuance  thereof.  Cal- 
houn V.  Delhi&'  A/.  R.  Co.,  28  Hun  (N.  V.) 
379,  64  Hint).  I'r.  291. 

After  township  trustees  have  passed  upon 
the  sufficiency  of  a  petition  for  an  election 
to  decide  upon  a  tax  to  aid  a  railroad,  and 
the  election  has  been  ordered,  and  a  favor- 
able vote  taken  and  the  tax  levied,  the  valid- 
ity of  the  tax  cannot  be  assailed  on  the 
ground  that  one  third  of  the  resident  ta.x- 
payers  had  not  signed  the  petition.  The 
trustees  have  jurisdiction  to  settle  that  ques- 
tion, and  their  decision  cannot  be  collater- 
ally attacked.  Ryan  v.  Varga,  37  lo-va  78. 
—  DisTiNGUiSHKi)  IN  Slack  v.  Blackburn, 
64  Iowa  373.  FoLLowKl)  IN  Chicago  M.& 
St.  P.  K.  ("o.  V.  Shea,  67  Iowa  728.—  West 
V.  Whitaker,  37  Iowa  598. 

Where  a  petition  is  presented  to  town- 
ship trustees  under  the  Iowa  statute,  asking 
them  to  submit  to  a  vote  the  question  of 
imposing  a  tax  in  aid  of  a  railroad,  and  the 
trustees  have  found  that  the  petition  was 
signed  by  one  half  of  the  resident  freehold 
taxpayers  of  the  township,  and  cause  such 
finding  to  be  entered  of  record,  such  finding 
must  be  taken  as  true,  and  excludes  the 
presumption  that  they  found  that  it  was 
signed  by  "a  majority"  of  the  taxpayers.  w=. 
required  by  the  statute,  and  a  tax  voir.i 
thereunder  is  absolutely  void,  and  the  want 
of  jurisdiction  may  be  shown  in  an  injunc- 
tion proceeding  to  restrain  tlie  collection  of 
the  tax.  Slack  v.  Plackbnrn,  64  Inua  373,  20 
N.  W.  AV;).  478.— Distinguishing  Ryan  v. 
Varga,  37  Iowa  78. 

The  recital  in  the  entry  of  a  board  of 
couiuy  commissioners,  ordering  an  election 
in  a  township  upon  a  petition  therefor  to 


MUNICIPAL   AND    LOCAL   AID,  08,  «0. 


571 


.  I 


vote  aid  for  tlie  c<>iisliji<:lioii  of  a  railroad, 
"  and  proof  beiny  made  that  twenty-live  of 
llic  petitioners  arc  freeholders  of  Clinton 
lownstii|),"  is  snllicient  U)  show  that  such 
li(>ard  found  tiiat  tlic  |)etiti(jn  was  signed  by 
uvent\-live  freeholders  of  the  paiticular 
ti)wnshi|)  of  their  own  county,  and  the  mere 
fact  that  such  recital  was  interpolated  after 
the  other  jjarts  of  the  entry  had  been  C(jni- 
pleted  does  not  alTect  the  validity  of  the 
I  iitry  or  the  [lart  interpolated,  lloddard  \i. 
S/()i/://iii>i,  5  .//«.  &•  /i";/^'.  A'.  Cas.  164,  74 
///(/.  400, 

A  petition  osking  for  municipal  aid  in  the 
construction  oi  a  railroad,  under  New  York 
sl.itMtes,  only  stated  that  tiie  |)etiti(jncrs 
were  a  majority  ol  tlie  taxpayers  wIkjsc 
names  appeared  on  the  last  assessment  roll, 
but  did  not  state  that  they  were  a  inajoi  ity 
excluding  those  taxed  for  dogs  or  higiiway 
tax  oidy,  and  including  owners  of  non-resi- 
dent lands  taxed  as  such,  but  the  affidavit 
ol  a  petitioner  and  taxpayer  did  state  that 
the  signers  were  a  majority,  excluding  those 
taxed  for  dogs  and  highway  tax  oidy,  and 
including  those  taxed  as  non-resident  lanri- 
owncrs.  //e/<i,  that  the  petition  and  affi- 
davit were  to  be  considered  togetlier,  and  a 
judgment  of  the  county  judge  finding  tliat 
such  petitioners  were  a  majority  of  the  tax- 
payers, as  required  by  statute,  was  sulTici^nt. 
IV/iitin^  V.  J'otUr,  18  Blatchf.  ( U.  S.)  16^.— 
Rkviewing  People  ex  rel.  v,  Spencer,  55 
N.  Y.  I  ;  Wellsborough  v.  New  York  &  C. 
R.  Co.,  76  N.  Y.  182. 

08.  UvcuiiHidvratioii  of  siifllcii-iicy 
ol  petition.—  Where  the  city  council  upon 
petition  refuses  to  subbv.ribe  for  the  stock  of 
a  railroad  company,  under  Ind.  Code,  §3153, 
it  has  no  power  after  the  lapse  of  two  years 
to  again  consider  the  same  petition  and 
grant  its  prayer.  Madison  v.  Sintt/i,  83  Ind. 
502. — Rkvikwing  Clarke  County  Com'rs  v. 
State  ex  rel.,  61  Ind.  75  ;  Doctor  v.  Hartman, 
74  Ind.  221  ;  Indianapolis  v.  Patterson,  33 
Ind.  157;  Foist  7ACoppin,3S  Ind.  471;  Smith 
z/.  Chandler,  13  Ind.  513  ;  Roberts z/.  Warren, 
3  Wis.  736  ;  Covington  v.  Ludlow,  i  Mete. 
(Ky.)  295. 

Where  a  railroad  corporation  silently  ac- 
quiesces for  two  years  in  a  decision  of  a  city 
council  adverse  to  a  petition,  it  cannot  af- 
terwards revive  the  original  petition  and 
secure  a  favorable  decision.  Madison  v. 
Smith,  83  Ind.  502. 

»«.  What  Kivcs  jurisdiction  to  call 
an  election,— Where  a  sufficient  petition 


for  an  appropriati(jn  i)y  a  township  to  aid  in 
the  construction  of  a  railroad  has  been  duly 
filed  Ijcfore  the  proper  board  (jf  county  com- 
missioners, under  tiie  Ind.  Act  of  May  12, 
i86<)  (I  Rev.  St.  1.S76,  p.  736),  the  tiling  of 
tile  |iet,iion  calls  into  excic:ise  the  jurisdic- 
tion of  the  board,  and  anthori/es  that  body 
to  di'termini'  every  fact  necessary  to  the 
granting  of  the  ;  iryer  of  the  petition,  in- 
cluding thcfpiesHin  (vhetheror  not  the  rail- 
road company  sougiit  to  be  aided  has  been 
didy  organized  under  the  laws  of  this  state. 
Lawrence  <  ■  >,  itty  Com'rs  v.  // ,  /, ,  70  Ind.  469. 

Section  3153,  Ind.  \<r\- .  bt.  iStJi,  was  in 
1877,  and  still  is,  in  f  >rce,  and  by  its  provi- 
sions a  petition  by  u  majority  of  the  free- 
holders of  a  city  is  necessary  to  confer  upon 
the  common  council  power  as  well  to  sub- 
scribe for  the  stock  u{  a  railroad  company  as 
to  make  a  donation  t«  aid  it.  ocftion  3152 
is  and  w;>s  also  in  force,  and  is  not  inconsist- 
ent with  section  3153.  Madison  v.  IJniit/t, 
83  Ind.  502. 

At  least  fifty  freeholders,  residents  of  a 
township,  etc.,  must  sign  a  petition  to  the 
county  commissioners  requesting  them  to 
call  an  election  in  said  township  for  tlie 
purpose  of  voting  aid  for  a  railway.  With- 
out a  petition  so  signed  by  the  full  number 
required,  the  commissioners  have  no  juris- 
diction. Wullenwabcr  v.  Diinij^an,  yj  Neb. 
877,  47  A^.  W.  Rep.  420.  State  ex  rel.  v. 
liabcock,  21  Xeh.  187,  31  A''.   W.  Rep.  682. 

Under  N.  Y.  Act  of  1869,  ch.  907,  ;is 
amended  in  1871,  the  jurisdiction  of  the 
county  jud;;e  relating  thereto  depends  upon 
a  proper  petition  presented  to  him,  and 
if  any  fact  required  to  be  stated  therein  is 
omitted  all  subsequent  proceedings  are  void. 
It  must  be  in  the  petition  because  the  stat- 
ute requires  it,  and  the  fact  that  it  is  brought 
to  the  knowledge  of  the  judge  in  some  other 
way,  or  at  some  other  stage  of  the  proceed- 
ing, or  that  it  seems  unnecessary,  does  not 
cure  the  defect.  People  ex  rel.  v.  Spencer, 
55  A^.  Y.  I.— Reviewed  in  Whiting t/.  Pot- 
ter. 18  niatchf.  (U.  S.)  165. 

A  petition  is  fatally  defective  if  it  fails  to 
state  that  the  company  to  be  aided  is  a  rail- 
road company  in  the  state,  as  required  by 
section  i  of  the  statute.  The  mere  naming 
of  tlie  corporation  without  stating  whether 
it  is  a  foreign  or  domestic  corporation  is  not 
a  compliance  with  the  statute.  People  ex 
rel.  v.  Spencer,  55  A^.  Y.  i. 

Under  New  York  Act  of  1869,  §  i,  a  peti- 
tion must  be  presented  to  the  county  judge 


672 


MUNICIPAL   AND    LOCAL  AID,  lOO,  lOl. 


•i'^^ 


'I  ' 


vti- 


signed  by  the  requisite  number  of  taxpayers 
before  he  is  autliorized  to  make  an  order  for 
a  hearing.  People  ex  rel.  v.  Hughitt,  5  Lans, 
(.V.   r.)89. 

Under  N.  Y.  Act  of  1869,  §  2,  if  tax- 
pavers  wish  to  consent  to  tlie  bonding  of  a 
town,  but  do  not  sign  the  petition  which  is 
presented  to  thf;  county  judge,  they  must 
ap[)ear  before  hnn  at  the  time  and  place 
designated  for  the  taking  of  proof  and  then 
and  tliere  express  a  desire  to  join  in  the  pe- 
tition ;  and  the  statute  contemplates  a  per- 
sonal ap[)earance.  People  ex  rel.  v.  Hughitt, 
5  Liins.  (_N.  r.)89. 

An  expression  by  some  of  the  taxpayers 
of  their  desire  that  the  proceeds  of  the 
bonds  issued  by  the  town  should  be  invested 
in  first  mortgage  bonds  of  a  railroad  com- 
pany does  not  thereby  render  the  pe'.ition 
informal  or  insufficient.  A  first  mortgage 
bond  is  a  bond  of  the  company,  and  there  is 
no  evidence  or  presumption  that  more  than 
one  mortgage  will  ever  be  issued.  People 
ex  rel.  v.  Hughitt.  5  Lam.  (N.  Y.)  89. 

The  assessment  roll  which  is  to  furnish  the 
names  of  taxpayers  and  amounts  assessed 
is  the  last  roll  whicli  has  been  revised  and 
corrected  by  the  supervisors.  People  ex  rel. 
V.  Hughitt,  5  Lans.  {N.  F.)  89. 

Commissioners  appointed  under  the  New 
York  statute  to  subscribe  to  railroad  stock 
on  behalf  of  a  town  are  limited  to  '.i.e  au- 
tlKjrity  conferred  by  the  statute  and  the  pe- 
tition presented  to  the  county  judge;  aiid  a 
subscription  to  a  different  company,  or  for 
a  larger  amount  than  that  authorized  by  the 
petition,  is  void.  Rochester,  N.  &*  P.  R.  Co, 
V.  Cuyler,  7  Lans.  (Av  F.)  431. 

2.  Assent  of  Taxpayers. 

100.  Necessity  ofobtainingra.ssent. 

— Wiiere  the  power  of  a  town  to  subscribe 
to  railroad  stock  and  issue  its  bonds  in 
payment  is  conditioned  upon  twelve  or  more 
freehold  residents  of  the  town  applying  to 
the  county  judge  for  the  appointment  of 
commissioners,  and  upon  obtaining  the 
consent  in  writing  of  a  majority  in  number 
and  amount  of  the  resident  taxpayers  of  the 
town,  such  application  and  consent  are  con- 
ditions precedent  to  the  authority  of  the 
town  to  subscribe  foi  stock  and  to  issue 
bonds.  Dnanesburgh  \,  Jenkins,  40  Barb. 
(-V-   Y.)  574. 

If  such  town  issues  bonds  without  first 
obtaining  the  consent  of  the  required  num- 
ber of  taxpayers,  as  required  by  the  statute, 


the  bonds  are  void,  at  least  in  the  hands  of 
the  railroad  company.  Duanesburgh  v.  Jen- 
kins, 40  Barb.  (N.  F.)  574. 

Then. nhod  in  which  the  assent  of  a  town 
to  its  subscription  for  stock  and  the  issuing 
of  its  bonds  to  aid  the  construction  of  a 
railroad  may  be  given  is  in  the  discretion 
of  the  legislature.  It  may  authorize  such 
assent  to  be  expressed  by  any  officer  of  the 
town  ;  and  where  it  has  once  acted,  it  does 
not  part  with  any  portion  of  this  power. 
Where  it  has  previously  clothed  a  majority 
of  the  taxpayers  with  this  authority,  it  may 
take  it  away  and  confer  it  upon  a  town  offi- 
cer; and  it  may  also  take  away  any  condi- 
tions previously  imposed  and  give  the  officer 
unrestricted  authority  to  act,  or  it  may  im- 
pose other  and  new  conditions  at  its  pleas- 
ure. Duane'^burgh  \.  Jenkins,  57  N.  V.  177  ; 
reversing  46  Barb.  294.— QUOTING  People 
ex  rel.  v.  Mitchell,  35  N.  Y.  551. 

Under  N.  Y.  Act  of  1868,  ch.  553,  as 
amended  in  1869,  ch.  96,  the  consent  of  the 
taxable  inhabitants  is  absolutely  necessary  ; 
and  where  the  consent  does  not  specify  a 
company  in  whose  stock  the  money  is  to  be 
invested,  it  is  fatally  defective ;  and  such 
defect  is  not  cured  by  the  act  of  1871,  ch. 
809,  purporting  to  legalize  and  confirm  the 
acts  of  the  commissioners  relating  thereto. 
Horton  v.  Thompson,  7 1  A'.  F.  5 1 3 ;  reversing 
7  Hun  452. — Following  People  ex  rel.  v. 
Batchellor,  53  N.  Y.  128.— Disapproved  in 
Thompson  v.  Perrine,  103  U.  S.  806.  Dis- 
tinguished in  Solon  V.  Williamsburgh  Sav. 
Bank,  114  N.  Y.  122;  Brownell  v.  Green- 
wich, 114  N.  Y.  518,  22  N.  E.  Rep.  24,  24  N. 
Y.  S.  R.  6,  4L.  R.  A.  685;  Hoag  v.  Green- 
wich, 133  N.  Y.  152.  Followed  in  Scipio 
r  Wright,  loi  U.  S.  665 ;  Rogers  v.  Steph- 
ens, 86  N.  Y.  623. 

Under  Vt.  Act  of  Nov.  12,  1867,  it  is  not 
sufficient  merely  to  file  the  writing  contain- 
ing the  assent  and  certificate  of  a  majority 
of  the  taxpayers ;  but  it  must  be  filed  and 
recorded  as  required  by  the  statute  to  give 
the  commissioners  authority  to  make  the 
subscription.  And  such  want  of  authority 
may  be  set  up  in  a  mandamus  proceeding 
by  an  assignee  of  the  company  to  compel 
the  town  to  issue  the  bonds.  Lamoille  Val- 
ley R.  Co.  V.  Fairjield,  51  Vt.  257.— FOLLOW- 
ING Essex  County  R.  Co.  v.  Lunenburgh 
Selectmen,  49  Vt.  143. 

101.  Conditional  assent.— Taxpay- 
ers may  impose  as  a  condition  to  the  sub- 
scribing for  stock  and  to   the  delivery  of 


I 


MUNICIPAL  AND   LOCAL   AID,  102,  10;J. 


573 


I  ., 


bonds  that  the  road  shall  be  constructed 
through  a  certain  village  ;  and  when  a  con- 
dition is  thus  imposed,  the  commissioners 
appointed  to  subscribe  for  the  stock  and  to 
issue  the  bonds  are  bound  thereby.  Fal- 
coner V.  Buffalo  &*  J.  R,  Co.,  69  A'.  F.  491  ; 
affirming  7  Hun  499. 

In  a  proceeding  to  bond  a  town  the 
county  judge  appointed  three  commissioners 
to  procure  the  necessary  consent.  One  of 
the  number  declined  to  act,  and  a  fourth 
one  was  appointed  in  iiis  place.  In  obtain- 
ing the  consents  each  commissioner  used  a 
separate  paper,  and  on  two  of  them  the 
signers  consented  that  the  three  commis- 
sioners originally  appointed  might  make 
the  subscription  and  issue  bonds,  while  on 
the  third  the  signers  consented  that  two  of 
then>  might  do  so,  excluding  the  one  who 
had  resigned ;  but  the  subscription  was 
made  by  the  three  acting  commissioners. 
Held,  that  the  taxpayers  might  impose  con- 
ditions as  to  the  making  of  the  subscription,' 
but  in  this  case  the  consent  did  not  author- 
ize the  subscription.  People  ex  rel.  v.  Hut- 
ton,  18  Hun  (N.  K.)  116.— Quoting  Fal- 
coner V.  Buffalo  &  J.  R.  Co.,  69  N.  Y.  491  ; 
Adams  v.  Washington  &  S.  R.  Co.,  10  N.  Y. 

334- 
102.  Revocation  of  assent.— Under 

a  statute  authorizing  the  bonding  of  a  town 
in  aid  of  a  railway  upon  the  assent  of  the 
taxpayers  owning  more  than  one  half  of  the 
taxable  properly  of  the  town,  taxpayers 
have  a  right  to  revoke  their  consent  at  any 
time  prior  to  the  making  of  the  affidavit  by 
the  assessors  that  such  majority  lias  given 
its  consent.  People  ex  rel.  v.  Allen,  52 
A'.  Y.  538.— Applied  in  Spnngport  v.  Teu- 
tonia  Sav.  Bank,  5  Am.  &  Eng.  R.  Cas.  199, 
84  N.  Y.  403. 

After  signing  a  petition  consenting  to  the 
bonding  of  a  town  certain  of  the  taxpayers 
executed  and  acknowledged  revocations  of 
their  consent  with  the  same  formalities  as 
the  consents,  and  delivered  them  to  the 
assessors  while  they  had  the  consents  before 
them,  and  before  they  had  acted  thereon, 
which  reduced  the  numberconsentin-  below 
that  required  by  the  statute;  buttheaness- 
ors  disregarded  the  revocations  and  went 
on  and  made  the  affidavit  of  consent,  as  re- 
quired by  the  statute.  Held,  that  the  omis- 
sion to  file  the  revocations  did  not  render 
them  ineffectual,  but  that  their  delivery 
made  them  effectual,  and  withdrew  from  the 
assessors  the  authority  to  make  the  affidavit. 


Sprimiport  v.  Teutonia  Sav.  Dank,  5  Ant. 
&^  Kii!^.  A.  Cas.  199,  84  A'.  K.  403. — ,Ar- 
HLYiNc;  People  ex  rci.  v.  Allen,  52  N.  Y.  538. 

And  in  such  case  the  omission  to  tile 
the  revocations  did  not  estop  the  town 
from  suing  to  restrain  holders  of  the  bonds 
from  transferring  them  and  to  compel  their 
cancellation.  Even  assuming  that  the  tax- 
payers who  thus  consented  and  revoked 
their  assent  were  estopped  by  their  own  act, 
it  could  not  estop  the  whole  body  of  the 
taxpayers  of  the  town.  Spri/tg-port  v.  Teu- 
tonia Sav.  Bank,  5  Ant.  &>  Eng.  N.  Cas.  199, 
84  A^.  Y.  403. 

Where  a  proceeding  is  instituted  under 
the  Vermont  statute  to  bond  a  town  in  aid 
of  a  railroad,  and  after  a  majority  of  the 
taxpayers  have  given  their  assent  in  writing, 
but  before  the  commissioners  have  certified 
that  fact,  enough  of  the  taxpayers  to  destroy 
the  majority  execute  in  writing  a  with- 
drawal of  their  assent  and  send  it  to  the 
commissioners,  without  going  before  thent 
in  person,  and  the  statute  makes  no  provi- 
sion for  withdrawing  such  assent,  the  com- 
missioners may  disregard  the  withdrawal, 
and  such  withdrawal  will  not  affect  the 
validity  of  the  bonds.  First  Nat.  Bank  v. 
Dorset,  16  Blatc/if.  ((/.  S.)  62. 

103.  Want  of  assent  cured  by 
retrospective  legislation. — The  legis- 
lature may  subsequently  validate  any  act 
which  it  might  have  authorized  in  advance. 
So  the  act  of  commissioners  in  bonding  a 
town  without  first  procuring  the  consent  of 
the  taxpayers,  as  required  by  the  statute, 
may  be  subsequently  validated  by  the  legis- 
lature. Hartienbergh  v.  Van  Ketircn,  4  Abb. 
N.  Cas.  (i^V.   Y.)   43;   reversed  in   16   Hun 

A  consent  of  taxpayers  which  does  not 
specify  the  company  in  whose  stock  the 
money  to  be  raised  is  to  be  invested,  as  re- 
quired by  the  statute,  is  fatally  defective, 
but  may  be  cured  by  a  subsequent  statute. 
Hortonv.  Thompson,T\  N.  Y.  513;  reversing 
7  Hun  452.— Following  Starin  v.  Genoa, 
23  N.  Y.  439 ;  Gould  v.  Sterling,  23  N.  Y. 

459- 

A  statute  authorized  a  certain  town  to 
issue  bonds  in  aid  of  a  railroad  on  condition 
that  the  resident  taxfiayers  representing  a 
majority  of  the  taxable  property  of  the  town 
should  give  their  consent  in  writing.  The 
required  number  gave  their  consent,  but  a 
part  of  them  annexed  a  condition  that  the 
road  should  be  located  through  or  near  a 


Bj      J 


6U 


MUNICIPAL   AND   LOCAL   AID.  104,  105. 


J  t 


'1^. 


certain  village.  Subsequently  the  legisla- 
ture passed  an  act  validating  such  consent 
"for  the  purposes  for  which  it  was  author- 
ized to  be  given,"  and  providing  that  it 
sliould  not  be  invalidated  for  certain  speci- 
fied causes,  "  or  for  any  other  eiror,  irregu- 
hirity,  omission,  or  defect,"  //M,  thattliis 
cured  any  irregularity  in  annexing  tlie  con- 
dition to  the  consent  of  the  taxp)ayers, 
J'iv/>/c-  f.v  rf/.v.  Clark,  53  Barb.  (N.  Y.)  171. 

104.  Mode  of  nscvi'taiiiiiij?  the 
proportion  of  taxpayers  >ylio  as- 
8Uiit. — Wiiere  a  statute  authorizes  a  town 
to  subscribe  to  railroad  stock  upon  the 
consent  in  writing  of  a  majority  of  the  tax- 
payers "appearing  upon  the  last  assessment 
roll,"  the  last  assessment  roll  referred  to  is 
the  last  one  before  the  time  of  making  the 
subscription,  and  not  the  last  one  before 
the  passage  of  the  statute.  Duanesburgh 
v.  Jenkins,  40  Barb.  {N.  Y.)  574. 

The  last  assessment  roll  referred  to  in  the 
above  statute  means  the  last  one  completed 
at  the  time  the  subscription  is  made ;  and 
where  the  one  for  the  year  in  which  the 
subscription  is  made  is  not  complete,  the 
one  for  the  previous  year  is  to  be  used. 
P'-ople  t'x  rel.  v.  Hulbert,  59  Barb.  {N.  Y.) 
446. 

Where  a  statute  provides  that  a  town 
shall  only  subscribe  to  railroad  stock  and 
issue  its  bonds  in  payment  upon  the  assent 
of  the  owners  of  more  than  one  half  of  its 
taxable  property  according  to  the  last  as- 
sessment roll,  such  assessment  roll  means 
the  last  one  before  the  town  assessors 
niiide  affidavit  of  such  consent,  and  not 
the  last  one  before  the  bonds  are  issued. 
P kelps  V.  Lewiston,  15  Blatchf.  {U.  S.)  131. 

Where  a  statute  authorizes  corporate  sub- 
scriptions to  the  capital  stock  of  a  railroad 
and  tlie  issuing  of  bonds  in  payment  thereof 
upon  the  consent  in  writing  "  of  a  majority 
of  the  taxpayers  appearing  on  the  last  as- 
sessment roll  of  such  village  or  town,  repre- 
senting tiie  majority  of  the  taxable  property 
of  the  residents  of  such  town,"  a  canal  cor- 
poration which  owns  property  in  the  town, 
but  has  its  principal  ofiice  and  place  of 
business  elsewhere,  cannot  be  said  to  be  a 
resident  of  the  town,  and  is  not  included. 
People  v.  Sc /toon maker,  63  Barb.  (N.  V.)  44. 

The  surrounding  circumstances  leading 
to  the  enactment  of  a  law  may  be  looked  to 
to  aid  in  its  construction.  So  where  the 
above  statute  was  procured  by  a  resolution 
at   a   meeting    of   the  resident  taxpayers 


having  for  its  very  object  the  exclusion  o! 
the  canal  company  and  other  corporations 
from  voting  or  consenting  to  the  bonding 
of  the  town,  it  should  be  construed  so  i.3 
to  carry  out  the  legislative  intent.  People 
V.  Schoonmaker,  63  Barb.  {N.   Y.)  44. 

Under  N.  Y,  Act  of  1869,  ch.  907,  relating 
to  the  bonding  of  towns,  all  names  upon  the 
tax  roll  must  be  counted  in  ascertaining 
whether  a  majority  of  the  taxpayers  con- 
sented thereto,  including  persons  taxed  only 
for  dogs.  People  ex  rel.  v.  Mc Master,  10 
Abb.Pr.  N.  S.{X.  Y.)  132. 

Joint  owners  are  to  be  counted  separate- 
ly; but  under  the  amendment  of  1871  a 
partnership  is  to  be  counted  as  one  tax- 
payer. People  ex  rel.  v.  Franklin,  5  Lans. 
(N.  Y.)  129. 

And  a  person  assessed  both  individually 
and  as  guardian  or  trustee  should  be  counted 
but  once.  People  ex  rel.  v.  Franklin,  5 
Lans.  (N.  Y.)  129. 

And  names  representing  assessments 
against  the  estates  of  deceased  persons  must 
be  excluded  from  the  count,  as  such  assess- 
ments, under  the  statute,  are  illegal  and 
void.  People  ex  rel.  v,  Franklin,  5  La7is. 
{N.  K)  129. 

105.  Xeccssity  of  proviiii;  as.seiit. 
— A  plaintiff  suing  a  town  on  bonds  issued 
under  N.  Y.  Act  of  1852,  ch.  375,  authorizing 
the  several  towns  in  Cayuga  county  to  aid 
in  the  construction  of  railways,  must  show 
afrirmatively  that  the  required  assentof  tax- 
payers was  obtained  and  filed  in  the  clerk's 
office.  The  representation  of  the  town 
officers,  as  expressed  on  the  face  of  the 
bonds,  that  the  necessary  assent  had  been 
obtained  and  filed  does  not  bind  a  town. 
Star  in  v.  Genoa,  23  A^.  Y.  439 ;  reversing  29 
Barb.  442.— DISAPPROVED  IN  Venice  v. 
Murdock,  92  U.  S.  494. 

But  the  contrary  of  the  above  doctrine  is 
held  by  the  supreme  court  of  the  United 
States;  and  that  in  a  suit  by  a  bona  fide 
holder  of  such  bonds  the  town  is  estopped 
from  disputing  their  validity,  and  that  the 
plaintiff  is  not  bound  to  prove  the  genuine- 
ness of  the  signatures  of  the  written  assent 
of  the  taxpayers,  where  the  proper  town 
officers  h.id  recited  that  such  assent  had  been 
given.      Venice  v.  Murdock,  92  U.  S.  494. 

The  action  of  a  county  in  making  the 
subscription  to  the  stock  of  a  company  is 
dependent  upon  the  assent  of  the  prescribed 
majority,  to  be  ascertained  in  the  manner 
prescribed  by  law,  for  its  validity  and  bind- 


\ 


MUNICIPAL  AND   LOCAL   AID,  106. 


675 


1 


: 


ing  force.     IVinston  v.  Tennessee  &»  P.  R. 
Co.,  I  liaxt.  {'/'enn.)  6o. 

loo.  Atlldavits  of  asscHsors  as 
proof  of  assent.— An  affidavit  of  a  town 
assessor  that  two  thirds  of  the  resident  tax- 
payers of  the  town  according  to  the  last 
assessment  roll  had  given  their  assent  to 
liie  bonding  of  tiie  town  is  not  suflicient 
evidence  of  the  fact  in  the  absence  of  any 
provision  of  the  statute  making  it  such. 
Statin  V.  Genoa,  23  A^.  ]'.  439;  miersing  29 
Llarb.  442.— APPLIED  IN  Cagwin  v.  Han- 
cock, 5  Am.  &  Eng.  R.  Cas.  150,  84  N.  Y. 
532.  Distinguished  in  People  ex  rel.  v. 
Brown,  55  N.  Y.  iZo.— Gould  v.  Sterling,  23 
A'.  Y.  439;  reversing  29  Barb.  442.— Dis- 
tinguishing Bank  of  Rome  t/.  Rome,  19  N. 
Y.  20.— Disapproved  in  Venice  v.  Mur- 
dock,  92  U.  S.  494.  Distinguished  in 
Hoag  V.  Greenwich,  133  N.  Y.  152.  Fol- 
lowed IN  Horton  v.  Thompson,  71  N.  Y. 
513;  Scipio  I/.  Wright,  loi  U.  S.  665.  Not 
followed  in  People  ex  rel.  v.  Hulbert,  59 
Barb.  (N..  Y.)  446.  Quoted  in  Lewis  v. 
Bourbon  County  Com'rs,  12  Kan.  186. 

The  affidavits  of  the  towri  assessor  are  not 
made  incontrovertible  and  conclusive  evi- 
dence of  the  facts  therein  stated.  They  are 
frimafacie  evidence,  and  may  be  impeaclied 
for  falsity,  or  rebutted  by  competent  evi- 
dence. People  ex  rel.  v.  Hut  ton,  18  Hitn 
(A'.  V.)  116.  Cagivin  v.  Hancock,  5  Am.&' 
Eng.  R.  Cas.  150,  84  Al,   V.  532;  reversing 

22  Nun  201.— Applying  Starin  v.  Genoa, 

23  N.  Y.  439;  People  ex  rel.  t/.  Mead,  36  N.  Y. 
224 ;  Venice  v.  Woodruff,  62  N.  Y.  463 ;  Peo- 
ple ex  rel.  t'.  Brown,  55  N.  Y.  196;  Wellsbor- 
ough  V.  New  York  &  C.  R.  Co.,  76  N.  Y.  185. 
Distinguishing  People  ex  rel.  v.  Mitchell, 
35  N.  Y.  551 ;  Springport  v.  Teutonia  Sav. 
Bank,  75  N.  Y.  397  ;  Bank  of  Romew.  Rome, 
19  N.  Y.  20. 

The  town  is  not  precluded  by  such  affi- 
davit of  its  assessor  from  showing  that  in 
fact  the  consent  of  a  majority  of  the  tax- 
payers of  the  town  had  not  been  obtained. 
Citg7vin  V.  Hancock,  5  Am.  &*  Eng.  R,  Cas. 
150,  84  A^.  F.  532 ;  reversing  22  Hun  201. 

Where  a  statute  only  authorizes  a  town 
to  issue  its  bonds  in  aid  of  a  railroad  upon 
a  majority  of  the  assessors  making  an  affi- 
davit to  the  effect  that  a  majority  of  the 
taxpayers  in  interest  have  consented  there- 
to, and  making  such  affidavit  proof  of  such 
consent,  such  affidavit  is  in  the  nature  of  a 
judgment,  and  the  actioi.  of  the  assessors 
in  making  it  is  reviewable  upon  a  certio- 


rari.     People  ex   rel.  v.  Allen,   52   N,    Y' 

538. 

When  the  assessors  show  that  they  have 
before  them  the  assessment  roll  and  con- 
sents of  the  taxpayers,  'he  signatures  to 
which  were  proved  as  conveyances  of  real 
estate  were  required  to  be  p  oved,  they  are 
authorized,  aided  by  their  personal  knowl- 
edge of  the  taxpayers,  to  determine  whether 
the  requisite  number  had  signed  the  con- 
sents, and  such  return  is  conclusive  in  a 
certiorari  proceeding  to  review  the  pro- 
ceedings of  such  officers  in  bonding  a  town. 
People  ex  rel.  v.  Morgan,  65  Barb.  (N.  Y.) 

473- 

Where  a  statute  requires  a  majority  of 
the  taxpayers  according  to  the  last  assess- 
ment roll  of  the  town  to  consent  to  the 
bonding  of  it,  and  consents  have  been  ob- 
tained for  the  last  two  years,  an  affidavit 
which  states  that  the  number  of  consents 
have  been  obtained  according  to  the  assess- 
ment rolls  of  the  last  two  years  is  sufficient 
compliance  with  the  statute.  If  the  affi- 
davit shows  that  the  required  number  of 
consents  has  been  obtained  as  appears  by 
both  rolls,  it  necessarily  so  appears  by  the 
last  one.  Pierce  v.  Wright,  6  Lans.  {N.  V.) 
306,  45  Ho7a.  Pr.  I. 

Commissioners  acting  under  N.  Y.  Act 
of  1868,  ch.  811,  who  issue  Donds  of  a  town 
without  the  requisite  consent  of  the  tax- 
payers so  as  to  make  them  valid  obligations 
of  the  town,  are  not  necessarily  guilty  of 
official  misconduct  so  as  to  make  them  per- 
sonally liable.  Where  a  provision  of  the 
statute  makes  it  the  duty  of  assessors  to 
make  a  verified  certificate  that  such  con- 
'ient  has  been  obtained,  and  the  commis- 
sioners act  thereon  in  good  laith.  it  is  a 
complete  justification.     Ontario  v.  Hill,  99 

A^.  Y.  324. 

Where  a  statute  provides  that  commis- 
sioners may  borrow  money  on  the  faith 
and  credit  of  the  town  and  issue  bonds 
therefor,  upon  the  affidavit  of  the  assessors 
that  a  majority  of  the  taxpayers  in  interest 
have  assented  thereto,  bona  fide  holders  of 
such  bonds  before  maturity  cannot  recover 
thereon  where  the  only  evidence  of  such 
consent  is  an  affidavit  of  the  assessors 
stating  that  the  consent  of  the  requisite 
majority  has  been  obtained,  as  required  by 
the  statute,  and  stating  further  that  the 
commissioners  are  authorized  to  borrow 
money  on  the  faith  and  credit  of  the  town, 
but  without  saying  anything  about  issuing 


576 


MUNICIPAL   ^vND   LOCAL   AID,  107,  108. 


bonds,  and  without  stating  to  wliat  the  con- 
sent has  been  obtained.  Smith  v.  Ontario, 
15  niatchf.  (U.  S.)  267.  — Distinguished  in 
Irwin  V.  Ontario,  3  Fed.  Rep.  49,  18  Blatchf. 
259. 

Plaintiff,  a  town,  issued  its  bonds  under 
N.  Y.  Act  of  1869,  ch.  314,  in  aid  of  a  railway. 
Section  2  of  the  act  required  tlie  town  assess- 
ors to  certify  that  a  majority  of  the  taxpayers 
of  the  town  had  given  their  assent,  and  pro- 
vided that  such  affidavit  should  be  "  pre- 
sumptive evidence"  of  the  facts  therein 
stated.  Subsequently  the  court  of  appeals 
annulled  the  proceedings  on  the  ground 
that  the  required  consent  of  the  taxpayers 
had  not  in  fact  been  given,  though  the  con- 
sents and  affidavits  were  in  form  sufficient. 
Afterwards  the  town  commenced  an  action 
against  holders  of  the  bonds  to  have  them 
delivered  up  and  canceled.  He/d.  that  the 
defendants,  not  being  parties  to  the  former 
litigation,  were  not  estopped  from  setting 
up  the  affidavit  of  the  assessors  as  "pre- 
sumptive evidence"  of  such  consent,  thus 
making  it  incumbent  on  the  town  to  rebut 
the  presumption  afforded  by  the  affidavit. 
But  the  affidavit  was  not  conclusive  in 
favor  of  tiie  defendants,  but  might  be  dis- 
puted by  the  town.  Sprini^port  v.  Teutonia 
Sav.  Bank,  75  N.  V.  397.— DISTINGUISHING 
Venice  v.  Woodruff,  62  N.  Y.  462.— Distin- 
guished IN  Cagwin  v.  Hancock,  5  Am.&- 
Eng.  R.  Gas.  150,  84  N.  Y.  532. 

By  N.  Y.  Act  of  1867,  ch.  874,  §  2,  the 
town  assessor  was  required  to  make  an 
affidavit,  in  a  proceeding  to  bond  a  town, 
showing  that  a  majority  of  the  taxpayers 
had  consented  thereto,  which,  when  so 
made,  should  be  legal  evidence  of  the  facts 
contained  therein.  In  a  proceeding  to  com- 
pel the  commissioners  of  the  town  to  issue 
the  bonds  to  the  railroad  company  the 
assessor  testified  that  he  signed  a  paper, 
but  not  under  oath,  the  contents  of  which 
were  not  stated  to  him  and  which  he  did 
not  know,  and  that  he  had  not  taken  any 
means  of  ascertaining  whether  a  majority 
of  the  taxpayers  had  consented  or  not. 
This  affidavit  was  taken  before  one  who 
was  acting  as  attorney  for  the  company  in 
procuring  the  bonding  of  towns,  and  he 
stated  as  a  witness  that  he  read  the  affidavit 
to  the  assessor  and  swore  him  to  it ;  that 
he  told  the  assessor  that  a  majority  had 
consented  to  bonding  the  town,  but  this 
statement  was  made  without  having  the 
assessment   roll    present.     //eM,  that  the 


t, 


town  was  not  bound  by  the  affidavit,  and 
that  the  company  could  not  compel  it  to 
issue  the  bonds.  People  c.x  ret.  v.  Barrett, 
\Z  ][itn  (.V.  I'.)  206. 

107.  Rcqiiiriiij;  nssciit  not  adclo- 
laratlon  of  legislative  power.— It  is  no 
objection  to  the  exercise  of  the  power  given 
to  the  legislature  to  impose  hical  taxation 
to  carry  out  local  enterprises  that  in  the 
exercise  of  this  power  the  legislature  has 
referred  the  propriety  of  imposing  such 
taxes  on  the  taxpayers  themselves,  ;ind  pro- 
viding that  the  act  shall  not  become  a  bind- 
ing law  unless  tiieir  consent  is  given.  S/aei' 
V.  Alaysville  &•  L.  K.  Co.,  13  B.  Mon.  (Aj.) 
I.— Followed  in  Baltimore  tS:  O.  R.  Co.  7'. 
Jefferson  County,  29  Fed.  Rep.  lo^.  —  Uaitk 
of  Rome  v.  Rome,  i8  A'.  Y.  38;  affirming  27 
ZPrtriJ.  65.— Distinguishing  Barton/.  Him- 
rod,  8  N.  Y.  i,^i,— Gould  v.  Sterling,  23  N. 
y.  456.— Disapproved  in  Venice  7/.  Mur- 
dock.  92  U.  S.  494.  Distinguished  in 
Hoag  V.  Greenwich,  133  N.  Y.  152.  Fol- 
lowed IN  Horton  v.  Thompson,  71  N.  Y. 
513;  Scipio  7/.  Wright,  101  U.  S.  665.  Nor 
FOLLOWED  IN  People  ex  rel.  v.  Hulbert,  59 
Barb.  (N.  Y.)  446.  Quoted  in  Lewis  7'. 
Bourbon  County  Com'rs,  12  Kan.  186. 

VII.  ELECTION, 

108.  In  general.*— If  the  legislature 
authorizes  a  municipal  corporation  to  vote  a 
donation  or  subscription  to  secure  the  loca- 
tion and  erection  of  a  public  building,  a  vote 
authorizing  the  same  will  create  a  legal  lia- 
bility. The  courts  cannot  inquire  into  the 
propriety  or  policy  of  such  legislation. 
Hemley  Tp.  v.  People  ex  rel.,  84  ///.  544. 

Under  the  charter  of  the  Bloomington  & 
Ohio  River  R.  Co.,  §§  8,  9,  and  10,  adopted 
March  10,  1869,  power  was  conferred  on 
towns  along  the  line  of  such  road  to  vote, 
under  the  notices  therein  specified,  for  or 
against  the  issue  of  tf)wnship  bonds  as  a 
donation  in  aid  of  its  road,  and  upon  a  vote 
the  power  was  conferred  to  issue  such  bonds. 
Windsor  v.  Haflett,  3  Am.  <5>»  ling.  R.  Cas. 
76,  97  ///.  204.—  Following  Prairie  v. 
Lloyd,  97  111.  179. 

The  statute  does  not  make  the  county 
commissioners  the  canvassing  officers,  nor 
designate  the  time  and  place  of  making  the 
canvass  of  votes  cast  at  an  election  held  on 

*  Right  of  individuals  to  vnte  stock  imder  a 
county  subscription  where  each  taxpayer  be- 
comes a  stockholder,  see  52  Am.  &  Eng.  R.  Cas. 
127,  aittr. 


I 


ftXf 


MUNICIPAL   AND   LOCAL  AID,  108. 


the  qtiestion  of  subscribing  stock  in  a  rail- 
way corporation.  Lewis  v.  Bourbon  County 
Coin'rs,  12  Kan.  i86. 

A  statute  which  authori-jfs  a  town  at  any 
time  prior  to  a  day  therein  specified  to 
create  and  issue  its  bonds  in  aid  of  a  pub- 
lic enterprise  by  a  vote  of  its  supervisors,  to 
be  ratified  at  any  election  autliorized  to  be 
held  at  any  tinie  prior  to  said  day,  and 
which  also  expressly  provides  that  no  bonds 
shall  be  issued  until  after  such  ratification, 
and  that  they  shall  then  be  issued  and  dis- 
posed of  in  such  way  as  the  parties  may 
thereafter  agree  upon,  does  not  require  the 
formal  execution  and  delivery  of  such  bonds 
prior  U)  the  day  limited  for  said  ratification. 
State  ex  rel.  v.  Litke  City,  25  Minn.  404. 

Under  Tenn.  Const,  of  1834,  art.  2,  §29, 
the  legislature  has  the  power  to  submit  the 
(juestion  of  subscribing  stock  to  a  railroad 
( ompany  to  a  vote  of  the  people,  and  the 
.uiihority  given  to  the  county  by  the  legis- 
l.iuire  to  make  such  subscription  is  made 
(lipendent  for  its  exercise  on  the  result 
of  a  vote  of  the  citizens  for  f)r  against  the 
proposition.  Winston  v.  Tennessee  &*  P. 
A'.  Co.,  t  Baxt.  (Tenn.)  60. 

An  election  in  a  township  was  ordered,  to 
decide  whether  such  town  should  subscribe 
to  the  capital  stock  of  a  company  named, 
l)avable  in  bonds  issuable  when  the  com- 
pany should  have  constructed  its  shops 
uitliin  the  town  at  an  expense  of  not  less 
ih;in  $25,000.  Hetii,  that  a  vote  in  favor  of 
tlie  proposition  was  legal,  and  authorized  a 
subscription  to  the  stock  of  the  company, 
hut  not  to  aid  in  the  erection  of  shops. 
Casey  v.  People  ex  rel.,  132  ///.  546,  29  Am. 
&=  /''ntf.  Cor/,.  Cas.  168,  24  N.  E.  Pep.  570. 

The  fact  that  the  vote  was  upon  condition 
tliat  the  shops  should  be  erected  in  the  town, 
and  the  subscription  may  have  been  made 
oil  tiiat  condition,  did  not  affect  the  right 
to  subscribe  to  the  stock  of  the  company. 
Casey  v.  People  ex  rel.,  132  ///.  546,  29  Am. 
&^  ErtfT.  Corp.  Cas.  168,  24  A^.  E.  Rep.  570. 

In  section  384  of  the  Iowa  Code,  relating 
to  the  division  of  a  township  containing  a 
city  or  incorporated  town,  the  words  "  for 
election  purposes  "  refer  only  to  the  election 
of  officers  for  the  new  township ;  and  as  the 
old  township  organization  in  such  a  case 
continues  to  exist  until  the  ist  day  of  Jan- 
uary following  the  order  of  the  supervisors 
for  the  division  of  the  township,  all  other 
elections  to  be  held  before  the  ist  day  of 
January  must  be  by  the  original  township 
6  D.  R.  D.—  37 


as  it  was  before  the  division.  So  held  in  this 
case,  where  a  tax  in  aid  of  a  railroad  was 
voted  by  the  whole  original  towiislii|)  in 
December  prior  to  the  January  when  the 
division  of  the  township  previously  ordered 
took  effect  under  the  statute.  Williams  v. 
Poor,  65  Io7iia  410,  21  N.  W.  Rep.  753. 

Where  the  proposition  submitted  to  the 
vote  of  the  people  provided  for  the  issuing 
of  bonds  in  the  amount  of  $500  each— //cA/, 
that  the  fact  that  the  amount  which  could 
legally  be  issued  could  not  be  divided  ex- 
actly into  sums  of  $500  did  not  render  the 
vote  a  nullity,  or  prevent  the  county  com- 
missioners trom  issuing  the  bonds.  Turner 
V.  Woodson  County  Com'rs,  \2  Am.  &>  Eng. 
R.   Cas.  600,  27  Kan.  314. 

Minn.  Sp.  Laws  1869,  ch.  34,  authorized 
the  city  of  Hastings,  by  a  vote  of  a  major- 
ity of  its  city  council,  ratified  by  the  voters 
of  the  citv,  to  issue  bonds  in  aid  of  the 
St.  Paul  &  Chicago  R.  Co. ;  that  before 
said  bonds  should  be  issued  the  question  of 
their  issue  should  be  passed  upon  by  the 
voters  at  any  election  held  for  that  purpose 
at  any  time  prior  to  the  ist  day  of  August, 
and  if  such  issue  was  by  them  approved, 
then  that  the  bonds  should  be  issued,  and 
the  council  might  make  such  agreements  as 
they  might  deem  proper  with  the  company 
for,  or  relating  to,  the  disposal  of  the  bonds 
or  their  proceeds.  Pursuant  to  this  law  the 
council  on  May  3,  1870,  duly  adopted  an 
ordinance  authorizing  the  issue  of  a  certain 
amount  of  bonds,  and  fully  prescribing  the 
terms  and  conditions  upon  which  they 
should  be  issued,  among  which  was  one  that 
no  bonds  should  be  issued  until  after  the 
completion  of  the  railway,  as  specified  in 
the  ordinance.  This  ordinance  was  duly 
ratified  by  the  people  at  an  election  held 
May  15,  1870,  in  pursuance  of  its  provisions. 
Held,  that  the  ordinance  was  a  proper  exer- 
cise of  power  on  the  part  of  the  city  coun- 
cil under  the  law  in  question.  Warsop  v. 
Hastings,  22  Minn.  437. 

In  a  suit  against  a  town  for  the  interest 
due  upon  certain  bonds  issued  by  it  in  aid 
of  a  railroad,  and  reciting  that  they  were 
issued  pursuant  to  an  order  of  the  trustees 
"  authorized  by  a  vote  of  the  people  of  said 
town  at  a  special  election  held  for  that  pur- 
pose," where  it  appeared  that  sixteen  votes 
were  cast,  and  all  in  favor  of  the  subscrip- 
tion, but  no  testimony  indicated  when  the 
election  was  held,  or  that  there  were  any 
judges  of    the  election,  or  that  any   poll 


% 


J?' 


I 
I 


W'f 


D  lb 


MUNICIPAL   AND    LOCAL   AID,  100. 


1   i 


^  ' 


ill 


'  !'%• 


books  were  kept,  or  that  any  return  of  the 
votes  cast  had  ever  been  made  to  any  offi- 
cer or  body  authorized  to  declare  the  result, 
and  the  evidence  strongly  tended  to  show 
that  no  registration  of  the  qualified  voters 
of  the  town  had  ever  been  made,  certified, 
and  filed  as  required  by  law,  or  authenti- 
cated in  any  way,  the  issue  of  the  bonds 
was  held  unauthorized,  and  the  plaintiff  not 
allowed  to  recover.  Carpenter  v.  Lathrop, 
51  Mo.  483.— Quoting  Steines  v.  Franklin 
County,  48  Mo.  167.  Quoting  and  distin- 
guishing Knox  County  Com'rs  v.  Aspin- 
wall.  21  How.  (U.  S.)  539.  Reviewing 
Ranney  v.  Baeder,  50  Mo.  600. 

100.  Cuiiditioiis  iiroccdoiitto  cnll- 
iiif^  election. — In  order  to  render  a  v(jte 
of  the  people  upon  a  question  of  borrowing 
money  or  aiding  in  constructing  a  road  of 
any  validity,  and  to  confer  any  authority  by 
it  upon  the  county  judge,  all  the  requisites 
of  the  statute  must  be  complied  with  in 
reference  to  each  question  or  proposition 
submitted.  McMillan  v.  lioyles,  3  /owa  311. 
—  Quoted  in  Alvis  7>.  Whitney,  43  Ind.  83. 

Su|)ervisors  may  require  proof  that  per- 
sons petitioning  for  a  vote  on  subscribing  to 
the  stock  of  a  railroad  are  legal  voters ;  but 
where  such  proof  is  offered,  and  refused,  it 
must  be  regarded  as  waived.  People  ex  rel. 
V.  Logan  County  Snp'rs,  45  ///.  162. 

It  is  not  essential  to  the  validity  of  a 
popular  election,  ordered  and  held  on  the 
question  of  subscription  to  stock,  that 
there  should  be  a  final  and  definite  sur- 
vey and  location  of  the  entire  line  of  the 
company's  road.  All  that  is  required  is 
i\  substantial  location,  designating  the  ter- 
mini awA  general  direct'on  of  the  road,  and 
an  estimate  of  the  cost  of  constructing  it, 
Wilson  County  v.  Third  Nat.  Bank,  3  Atn. 
&•  Eng.  R.  Cas.  1 51,  103  i/.  5.  770.  Harwood 
<S«»  C.  F.  (Sf  M.  R.  Co.  V.  Case,  yj  Iowa  692. 

Where  a  statute  provides  that  the  people 
may  vote  upon  taking  stock  "  in  any  road 
\\  hich  passes  through  or  contiguous  to  any 
county,"  and  there  is  no  provision  requiring 
the  road  to  be  located  before  such  vote,  the 
vote  may  be  taken  before  the  location. 
Louisville  &*  A'.  R.  Co.  v.  Davidson  County 
Court,  I  Sneed  (  Tenn.)  637. 

Section  1144  of  the  Tenn.  Code  provides 
that"  before  such  application  [that  is.  to  the 
county  court  to  order  an  election]  can  be 
■inadethe  entire  line  of  the  road  in  which  the 
stock  is  proposed  to  be  taken  shall  be  sur- 
veyed by  a  competent  engineer,  and  substan- 


tially located  by  designating  the  termini  and 
approximating  the  general  direction  of  the 
road,  and  an  estimate  of  the  grading,  em- 
bankment, and  masonry  made  by  the  engi- 
neer under  oath  and  filed  with  the  applica- 
tion." Held,  that  no  election  can  be  ordered 
until  these  requirements  are  complied  with. 
Winston  v.  Tennessee  &^  P.  R.  Co.,  i  />'ri.i7. 
(7V7/«.)6o. 

The  provisions  of  the  above  section  are 
not  directory,  but  mandatory.  Winston  v. 
Tennessee  &^  P.  R.  Co.,  i  Baxt.  {Tenn.)  60. 

Under  Cal.  Act  of  Apr.  4,  1870,  aid  may 
be  granted  to  a  road  between  certain  points, 
where  the  company  is  not  incorporated  un- 
til after  the  order  is  made  calling  an  election. 
Coleman  v.   Marin  County   Sup'rs,  50  Cal. 

493- 

Before  the  board  of  county  commissioners 
of  a  county  shall  cause  a  first  election  to  be 
held  under  the  provisions  of  section  i,ch. 
183,  Kan.  Laws  of  1887  (Gen.  St.  of  1889,  p. 
1283),  to  determine  whether  a  municipal 
township  shall  be  permitted  to  subscribe  to 
the  capital  stock  of  a  railroad  company 
constructing  or  proposing  to  construct  a 
railroad  through  or  within  such  township,  a 
petition  in  writing,  signed  or  purporting  to 
be  signed  by  two  fifths  of  the  resident  tax- 
payers of  the  township  in  which  the  election 
is  to  be  held,  must  be  presented  to  the  board 
which  is  requested  to  order  such  an  election. 
Kansas  City  &^  P.  R.  Co.  v.  Rich  Tp.,  45 
Kan.  275,  25  Pac.  Rep.  595. 

Under  an  act  authorizing  a  city  to  make 
an  agreement  with  a  railroad  company  t : 
issue  its  bonds  to  aid  in  constructing  its 
railroad,  and  by  ordinance  to  provide  for  is 
suing  the  bonds,  and  providing  that  no  such 
agreement  or  ordinance  shall  take  effect  un- 
til the  ordinance  specifying  the  time,  terms, 
and  conditions  of  the  bonds  shall  be  sub- 
mitted forapproval  to  the  voters  of  the  city, 
an  agreement  must  be  entered  into  before 
the  ordinance  is  submitted,  and  submission 
before  such  agreement  is  void.  Hodgman 
v.  Chicago  &•  St.  P.  R.  Co.,  20  Minn.  4S 
{Gil.  36.) 

An  Ohio  Act  of  March  21,  1850,  as  amend- 
ed March  25,  1851,  authorized  county  elec- 
tions to  vote  on  making  subscriptions  to  tlu 
stock  of  railroads ;  but  if  a  subscriptior 
should  not  be  authorized  by  the  county 
then  a  vote  might  be  taken  by  townships 
on  the  question  of  subscriptions  by  them 
Held,  that  a  township  had  no  power  to  vot< 
or  issue  bonds  until  after  the  county  hac 


■ 


MUNICIPAL  AND    LOCAL   AID,  110-113. 


579 


refused  to  subscribe  either  by  a  direct  vote 
or  by  failure  to  call  an  election  within  a  rea- 
sonable time.  Northern  Nat.  Bank  v. 
Porter  Tp„  1 5  Am.  &■*  Kng.  R,  Cas.  575,  1 10 
C\  S.  608,  4  Sup.  Ct.  Rep.  254;  affirming  5 
Fed.  Rep.  568. 

A  law  provided  that  if  the  "corporate  au- 
thorities" of  a  city  "shall  propose  to  sub- 
scribe to  the  capital  stock  of  a  railroad  "  it 
should  be  their  duty  to  fix  a  time  for  hold- 
ing an  election  to  vote  on  the  proposition. 
Held,  that  this  did  not  require  the  corporate 
authorities  to  meet  and  propose  to  subscribe 
before  the  election  was  called.  Mocrs  v. 
Reading,  21  Pa.  St.  188. 

110.  Duty  to  call  election.— Where 
a  petition  is  properly  presented  to  the  board 
of  county  commissioners  under  the  provi- 
sions of  ch.  107,  Kan.  Laws  of  1876,  and  the 
amendments  thereto,  and  upon  being  exam- 
ined and  canvassed  the  county  is  found  to 
contain  the  requisite  number  of  legal  peti- 
tioners, it  is  the  duty  of  the  commissioners 
to  cause  an  election  to  be  held,  as  prayed 
for,  to  determine  whether  such  subscription 
shall  be  made.  State  ex  re/,  v.  Rus/i  County 
Cow'rs,  35  A'an.  150,  10  Pac.  Rep.  535. 

But  where  it  appears  that  at  the  time 
the  petition  is  presented  a  question  is  pend- 
ing whether  or  not  the  township  shall  be 
divided  into  two  townships,  and  the  county 
commissioners  refuse  to  act  upon  the  peti- 
tion for  the  election  until  after  the  question 
vviicther  the  township  shall  be  divided  or 
not  shall  be  settled  and  determined — /le/d, 
that  the  supreme  court  will  not  order  a 
peremptory  writ  of  mandamus  to  be  issued 
to  compel  the  county  commissioners  to 
order  such  an  election  until  the  question  of 
the  division  of  the  township  is  finally  set- 
tled and  determined.  Stateex  rel.  v.  Ander- 
son County  Com'rs,  28  A'an.  67. 

111.  Wlio  limy  issue  the  call.— 
VVIiere  there  is  a  city  within  the  limits  of  a 
township,  but  not  coterminous  with  the 
township,  the  township  trustees  may  order 
the  submission  of  the  question  whether  the 
township,  including  the  city,  will  vote  a  tax 
in  aid   of  the  construction   of  a  railroad. 

Young  V.  Wedster  City  &^  S.  W.  R.  Co.,  7^ 
hnva  140,  39  A^.  W.  Rep.  234. 

Where  ca'led  meetings  of  boards  of  trus- 
tees or  other  bodies  are  necessary,  it  is  not  re- 
quired m  the  case  of  the  absence  of  members 
that  the  meetings  be  deferred  until  their 
return  in  order  that  they  may  act  without 
such  notice.      So  held,  where  two  of  the 


trustees  of  a  township,  without  notice  to  the 
third  one,  who  was  absent  from  home,  in  a 
called  meeting,  ordered  an  election  upon  the 
question  of  voting  a  tax  in  aid  of  the  con- 
struction of  a  railroad.  Young  v.  Webster 
City  &'  S.  W.  R.  Co.,  7$  Iowa  140,  39  A'.  W, 
AV/.  234. 

Under  the  Ohio  Act  of  March  21, 1850,  to 
incorporate  the  Springfield  &  Mansfield  R. 
Co.  (48  Ohio  L.  294),  and  the  act  of  March 
25,  1851,  "to  authorize  special  elections  to 
decide  the  question  of  subscription  to  the 
Springfield  &  Mansfield  railroad  by  coun- 
ties and  townships  "  (49  Ohio  L  548),  the 
trustees  of  Goshen  township  were  author- 
ized to  submit  the  question  of  a  subscription 
by  said  township  to  the  capital  stock  of  said 
company  to  the  electors  of  the  township,  to 
be  voted  on  at  the  time  of  the  annual  elec- 
tion in  October,  i85t,  no  steps  having  pre- 
viously been  taken  by  the  commissioners  of 
Champaigne  county  to  procure  a  vote  of  the 
electors  of  the  county  on  the  question  of  a 
county  subscription.  State  ex  rel.  v.  Goshen 
Tp.,  14  Ohio  St.  569.— Distinguishing 
Hopple  7A  BrownTp.,  13  Ohio  St.  311. 

112.  Call  by  county  court.— Where 
a  statute  provides  for  calling  an  election  by 
the  county  court  to  vote  on  subscriptions  to 
railroad  stock,  an  election  called  by  the 
board  of  supervisors  is  void,  and  confers  no 
authority  to  make  the  subscription.  Rich- 
land V.  People  ex  rel.,  3  ///.  App.  210.  Force 
V.  Batavia,  61  ///.  99. — Distinguished  in 
Post  V.  Kendall  County  Sup'rs,  105  U.  S. 
667.  —  Gaddis  v.  Richland  County,  92  ///.  119. 

To  authorize  a  county  court  to  make  a 
subscription  in  aid  of  the  construction  of  the 
Lexington  &  Big  Sandy  railroad,  under  the 
statute  of  that  subject  (Ky.  Sess.  Acts  of 
1851-52,  p.  786),  it  was  necessary  that  the 
election  for  ascertaining  the  sense  of  the 
voters  of  the  county  as  to  the  making  of  such 
subscription  should  have  been  ordered  by 
the  county  court  on  the  application  of  the 
officers  of  the  railroad  company.  And  a 
vote  taken  in  any  other  way  did  not  author- 
ize the  subscription  by  the  county  court  of 
stock  in  said  railroad.  The  payment  by  the 
county  court  to  the  oflicers  who  held  the 
election  without  authorit-/  could  not  give 
validity  to  an  election  which  was  illegal, 
Fayette  County  Court  v.  Lexington  &^  B,  S. 
R.   Co.,\7  B.  Mon.  {Ky.)  335. 

A  provision  of  law  requiring  all  the  mem- 
bers of  a  county  court  to  be  present  when 
levying  taxes  does  not  apply  to  mere  min* 


^lll- 

wM 

'■-■'% 

■'■■  "f 

■^■■j. 

580 


MUNICIPAL   AND    LOCAL  AID,  113. 


isterial  acts  of  the  court  in  ordering  a  vote 
I  if  tlie  county  on  a  proposition  of  taxing 
tiie  county  in  aid  of  a  railway.  Loiiis7ulU' 
&^  i\.  A'.  Co.  V.  Davidson  County  Court,  i 
Sneed  (Tenn.)  637.— Distinguishku  in 
Bowling  Green  &  M.  R.  Co.  v.  Warren 
County  Court,  10  Bush  (Ky.)  711. 

Wiiere  a  county  court  is  authorized  to 
submit  a  question  of  subscribing  to  railroad 
stock  to  a  vote  of  tlie  people  of  the  county, 
and  a  favorable  vote  has  been  obtained,  the 
court  cannot  revoke  its  action  and  order 
a  second  vote.  Madison  County  Court  v. 
Kiclimond,  I.  >S-  T.  F.  R.  Co.,  80  Ky.  16. 

An  application  made  in  the  name  of  com- 
missioners appointed  by  the  legislature  to 
organize  a  company  will  not  vitiate  the  or- 
der of  the  county  court  for  an  election  to 
determine  whether  thecounty  shall  subscribe 
to  the  stock  of  the  railroad,  though  the 
directors  had  been  elected  and  were  the 
proper  agents  of  tiie  company  to  make  the 
application.  Louisville  (5^  A'.  A'.  Co.  v.  State, 
8  Heisk.  (Tenn.)  663,  19  Am.  Ky.  Rep.  107. 

Though  the  Tennessee  Act  of  1871,  ch. 
50,  requires  the  order  to  be  made  by  a  ma- 
jority of  the  justices  at  a  quarterly  term, 
yet  bonds  will  not  be  subject  to  attack  after 
issue  because  the  order  was  made  by  a  ma- 
jority of  the  justices  not  at  a  quarterly 
tern).  Louisville  &•  N.  R.  Co.  v.  State,  8 
Heisk.  (  7>««.)  663,  ig  Am.  Ry.  Rep.  107. — 
Rkviewing  Louisville  &  N.  R.  Co.  v.  Da- 
vidson County  Court,  i  Sneed  (Tenn.)  638. 

Where  a  county  court  submits  the  ques- 
tion of  subscription  to  stock  of  a  railroad 
company  to  a  vote,  of  the  people  of  the 
county,  the  question  whether  it  was  sub- 
mitted in  pursuance  of  the  law,  or,  in  other 
words,  whether  the  county  court,  under  the 
circumstances,  had  authority  to  submit  it, 
is  a  question  not  in  the  nature  of  a  contested 
election  between  candidates  for  office,  and 
the  fact  that  a  chancery  court  has  not  juris- 
diction to  hear  and  determine  such  contested 
election  does  not  prove  its  want  of  jurisdic- 
tion to  declare  a  subscription  of  stock  void 
as  a  contract,  if  made  without  authority  of 
law.  Winston  v.  Tenne\see  &*  P.  R.  Co.,  i 
Baxt.  {Tenn.)  60.— Reviewing  Nicholi  v. 
Mayor,  etc.,  of  Nashville,  9  Humph.  (Tenn.) 
252 ;  Louisville  &  N.  R.  Co.  v.  Davidson 
County  Court,  i  Sneed  (Tenn.)  640, 

The  charter  of  a  railway  company  provided 
that  when  it  should  "  request  the  county 
court  of  any  county  through  or  adjacent  to 
which  it  is  proposed  to  construct  said  rail- 


way to  subscribe,  either  absolutely  or  upon 
special  conditions,  a  specified  amount  to  the 
capital  stock  of  said  cfjmpany,  the  county 
court  so  requested  may  in  its  discretion 
order  an  election."  Held,  that  this  gave 
the  county  judge  no  autliority  to  submit 
the  question  of  taxation  or  subscription 
to  a  vote  of  the  people  without  having  asso- 
ciated with  him  a  majority  of  the  justices 
of  the  county,  Bo^vUng  Green  &•  M.  R.  Co. 
V.  Warren  County  Court,  10  Bush  (Ky.) 
711.— Distinguishing  Louisville  &  N.  R. 
Co.  V.  Davidson  County  Court,  i  Sneed 
(Tenn.)  659. 

113.  Call  by  board  of  supervisors. 
—  A  board  of  supervisors  may  call  a  speci;il 
meeting  for  the  purpose  of  calling  an  elec- 
tion to  vote  on  bonding  the  county  in  aid 
of  a  railroad,  under  Cal.  Act  of  Apr.  4,  1870. 
Coleman  v.  Marin  County  Sup'rs,   50  Cal. 

493- 

Under  Illinois  statutes  of  1857,  authorizing 
counties  to  adopt  township  organization, 
the  board  of  supervisors  of  a  county  has 
authority,  under  111.  Act  of  Nov.  6,  1849, 
authorizing  counties  to  subscribe  for  stock 
in  railroad  companies,  to  call  an  election  to 
ascertain  the  will  of  the  people  in  that  be- 
lialf.  Prettyman  v.  Tazewell  County  Sup'rs, 
19  ///.  406. 

Under  the  Illinois  statutes  the  board  of 
supervisors  of  a  county  alone  has  the 
power  to  order  an  election  to  subscribe  to 
railroad  stock ;  and  in  such  matters  as  or- 
dering the  election,  canvassing  the  vote, 
deciding  that  a  majority  has  voted  for  the 
subscription,  and  in  passing  a  resolution 
that  the  county  will  take  the  stock  and  issue 
its  bonds,  it  cannot  delegate  the  power ;  but 
after  all  this  is  done  it  may  direct  that  the 
bonds  be  signed  by  the  county  judge. 
Clarke  v.  Hancock   County  Sup'rs,   27   ///. 

305- 

And   an  election  called   by  the  county 

court  is  unauthorized,  and  bonds  issued  in 
pursuance  thereof  are  void,  even  against  an 
assignee  without  notice  taking  the  bonds 
before  due.  Marshall  County  Sup'rs  v. 
Cook,  38  ///.  44.— Disapproving  Mercer 
County  V.  Hacket,  i  Wall.  (U.  S.)  83; 
Gelpcke  v.  Dubuque,  i  Wall.  175.— Distin- 
guished in  Mercer  County  Sup'rs  v.  Hub- 
lard,  45  111.  139. 

It  is  competent  for  the  board  of  super- 
visors, under  section  986  et  seq,  of  the  Iowa 
Revision,  to  call  a  special  election  for  the 
purpose  of  submitting  to  the  voters  of  the 


■\ 


I 


MUNICIPAL  AND   LOCAL   AID,  114,  115. 


581 


■ 


county  the  question  of  the  ratification  of  a 
contract  between  the  county  and  a  railroad 
company,  under  which  the  swamp  lands  of 
the  county  are  to  be  conveyed  to  the  com- 
pany to  aid  in  the  construction  of  its  road. 
Cetiar  liapids  &^  M.  R.  R.  Co.  v.  lioone 
County,  34  loiva  45,  5  Am.  Ry.  Rep.  59. 

114.  Wlieii  call  slioiild  Ix;  made.— 
Where  a  special  election  is  held  in  a  town 
to  autiiorize  tiie  issuing;  of  bonds  in  aid  of 
a  railway,  and  it  appears  from  the  record 
that  the  election  was  not  ordered  the  num- 
ber of  days  before  it  tooit  place  that  the 
statute  required,  the  record  shows  on  its 
face  that  the  election  was  illegal,  and  an 
issue  of  bonds,  therefore,  unauthorized. 
Hillv.  Memphis,  23  Fed.  Rep.  872;  affirmed 
in  134  U.  S.  198,  \o  Sup.  Ct.  Rep.  562. 

Such  bonds  are  not  invalid  because  the 
election  to  authorize  them  was  held  in  less 
than  thirty  days  after  the  date  of  the  order 
calling  it,  contrary  to  the  statute,  where  the 
bonds  contain  a  recital  that  they  were  issued 
"  in  pursuance  of  and  in  accordance  with 
the  act  of  the  legislature."  Humboldt  Tp. 
V.  Loni;,  92  U.  S.  642. 

115.  Contents  of  the  call.— Where 
the  law  authorizing  corporate  subscriptions 
in  aid  of  a  railroad  is  silent  as  to  what  the 
petition  for  and  notice  of  the  election  shall 
contain  as  to  the  length  of  time  the  bonds 
shall  run,  and  the  election  is  called  accord- 
ing to  law,  it  will  not  be  essential  to  the 
validity  of  the  election  that  the  petition, 
notice  of  election,  and  vote  should  fix  the 
time  when  the  bonds  will  mature.  People 
ex  rel.  v.  Harp  Sup'rs,  67  ///.  62. 

A  submission  to  a  vote  of  the  question 
whether  a  county  will  subscribe  to  the  stock 
of  a  railroad  need  not  specify  the  rate  of 
interest  to  be  paid  on  the  bonds  when  is- 
sued, nor  the  time  for  the  payment  of  such 
interest ;  nor  is  it  necessary  to  state  at  what 
time  the  proposition,  if  adopted,  will  take 
effect.  Whittaker  v.  Johmcn  County,  10 
Iowa  161. 

An  article  in  a  warrant  for  a  town  meet- 
ing is  sufficient  if  it  gives  notice,  with  rea- 
sonable certainty,  of  the  subject-matter  to  be 
acted  upon.  Thus,  where  the  only  mode 
provided  in  the  charter  of  a  railroad  by 
which  towns  interested  therein  may  aid  in 
its  construction  is  a  subscription  to  its 
stock,  an  article  in  a  warrant  for  a  town 
meeting  "to  see  if  the  town  will  loan  its 
credit  to  aid  in  the  construction  of  the  " 
railroad  named  gives  reasonable  notice  that 


a  proposition  to  subscribe  for  stock  will  be 
acted  upon  and  will  authorize  such  action. 
Belfast  Sf  M.  L.  K.  Co,  v.  Brook  ;  60  Me. 
568. 

A  public  act  authorizing  town  aid  to  rail- 
roads need  not  be  noticed  in  the  article  in 
the  warrant  to  see  if  the  town  will  vote  such 
aid.     Canton  v.  Smith,  65  Me.  203. 

Under  the  Missouri  General  Railroad  Law 
an  order  of  tiie  county  court  submitting  to 
the  voters  of  the  county  a  proposition  to 
subscribe  for  stock  in  aid  of  a  railroad  is 
not  required  to  specify  the  name  of  the  cor- 
poration if  the  proposed  route  be  described 
with  requisite  certainty.  Ninth  Nat.  Bank 
v,  Knox  County,  yj  fed.  Rep.  75.— Follow- 
ing Johnson  County  Com'rs  v.  Thayer,  94 
U.  S.  631  ;  Block  V.  Bourbon  County 
Com'rs,  99  U.  S.  698. 

It  is  not  necessary  that  all  the  details  of 
the  manner  and  conditions  of  extending  aid 
be  specifically  submitted  to  a  vote  and  be 
voted  upon  ;  the  substantial  question  to  be 
voted  upon  is,  "  Shall  the  county  aid  in  the 
construction  of  the  road  in  the  manner  and 
to  the  extent  provided  ?  "  Austin  v.  Gulf, 
C.  &>  S.  F,  R.  Co.,  45  Tex.  234,  13  Am.  Ry. 
Rep.  172. 

It  is  not  necessary  that  the  order  of  the 
court  directing  a  vote  upon  a  subscription 
should  state  that  the  amount  to  be  sub- 
scribed will  not  require  an  annual  tax  in 
excess  of  twenty  cents,  or  that  it  is  not 
more  than  one  fifth  the  capital  stock  of  the 
company.  Redd  v.  Henry  County  Sup'rs,  31 
Gratt.  (Va.)  695. 

In  an  order  made  under  Va.  Act  1881-82, 
p.  467,  directing  the  submission  of  the  ques- 
tion whether  or  not  a  county  should  sub- 
scribe to  the  stock  of  a  company  proposing 
to  build  its  railroad  through  the  county, 
the  county  court  failed  to  state  the  maxi- 
mum of  subscription  and  the  number  of 
miles  the  road  was  to  be  built  through  the 
county.  Held,  that  such  failure  does  not 
invalidate  the  order  nor  the  proceedings 
under  it.  Taylor  v.  Greenville  County 
Sup'rs,  86  Va.  506,  10  S.  E.  Rep.  433. 

A  town  passed  a  resolution  to  guarantee 
the  bonds  of  a  railroad  to  a  certain  amount, 
if  the  people  of  the  town  voted  favorably, 
and  provided  that  the  vote  should  be  by' 
ballot  by  "  yes  "  or  "  no  "  ;  and  a  record  of 
a  town  meeting  subsequently  made  stated 
that  the  resolution  was  adopted.  As  a  mat- 
ter of  fact  the  vote  was  not  by  ballot,  but 
by  a  division  of  a  town  meeting ;  but  neither 


i 


J: 
'ft 


MP 


I 


S 


583 


MUNICIPAL   AND    LOCAL  AID,  110. 


the  town  nor  tiny  person  foi  it  made  any 
nitjection  for  more  than  three  years,  and  till 
long  after  the  company  had,  in  good  faitli, 
issued  the  bonds  guaranteed,  and  delivered 
tliem  to  the  directors  in  payment  of  work 
and  materials.  Held,  that  both  the  town 
iind  the  inhabitants  thereof  were  estopped 
from  claiming  that  the  vote  was  not  legal. 
Xnu  Haven,  M.  &^  W.  R.  Co.  v.  Chatham, 
42  Conn.  465,  10  Am.  Ry.  Rep.  168. —  Re- 
viEWF.i)  IN  Sawyer  v.  Manchester  &  K.  R. 
Co.,  f)2  N.  H.  135,  13  Am.  St.  Rep.  541. 

A  petition  for  a  call  of  an  election  to  sub- 
scribe for  a  specified  amount  of  stock  con- 
tained several  express  conditions.  In  the 
alternative  writ  for  a  mandamus  the  town 
supervisor  was  required  to  call  an  election 
to  vote,  not  as  petitioned  for,  but  whether 
the  town  \.ould  subscribe  to  the  stock  or 
donate  to  the  railroad,  without  stating 
amount  or  conditions,  and  where  the  peremp- 
tory writ  misrecited  the  petition  for  the  call 
of  the  election,  but  commanded  the  super- 
visor "  to  call  an  election  of  the  legal  voters 
of  tlie  town  under  the  laws  of  this  state  " — 
held,  that  tlie  peremptory  writ  was  errone- 
ous in  not  following  the  petition  for  the 
call  of  an  election.    People  ex  rel.  v.  Brooks, 

57  ///.  142- 

While  Mass.  Sts.  of  1870,  ch.  325,  and  of 
1872,  ch.  S3,  were  in  force,  a  warrant  for  a 
town  meeting  contained  the  followiiifj  arti- 
cles :  "  To  see  if  the  town  will  vote  to  sub- 
scribe for  and  hold  shares  in  the  capital 
stock  of"  a  certain  railroad  corporation  to 
be  formed  under  the  St.  of  1872,  ch.  53,  for 
the  purpose  of  building  a  railroad  from  that 
town  to  another ;  "to  see  if  the  town  will 
vote  to  become  an  associate  for  the  forma- 
tion of  "  the  railroad  ;  and  "to  see  what  ac- 
tion the  town  will  take  in  regard  to  raising 
money  to  aid  in  building  "  the  railroad.  At 
the  meeting  held  in  pursuance  of  this  war- 
rant the  town  voted  to  subscribe  for  the 
stock  of  the  railroad  corporation  to  a  cer- 
tain amount,  and  to  become  an  associate  for 
the  formation  of  the  corporation  ;  and,  in 
order  to  pay  this  subscription,  voted  to  au- 
thorize its  treasurer  to  borrow  a  sum  not 
exceeding  that  subscribed,  "  in  .miounts  as 
may  be  required  by  the  directors,"  and  to 
give  therefor  the  notes  or  bonds  of  the  town, 
payable  to  a  certain  amount  in  each  year. 
Bonds  were  issued  in  pursuance  "^f  this  vote, 
and  taxes  were  levied  in  each  year  to  meet 
the  bonds  falling  due.  Held,  in  an  action 
to  recover  back  such  taxes  paid  under  pro- 


test, that  the  warrant  was  sufficient,  and 
that  the  votes  of  the  town  thereunder  were 
valid.  Kittredge  v.  North  Brookfield,  138 
Mass.  286. 

1  lU.  Power  to  call  a  Nocoiid  elec- 
tion.— Where  the  question  of  a  county  sub- 
scription to  railroad  stock  is  submitted  to 
a  vote,  which  is  in  the  negative,  if  there  is 
nothing  in  the  statute  to  prohibit  it,  a  sec- 
ond vote  may  be  had,  and  if  it  is  favorable,  a 
subscription  may  be  made  ;  and  this  is  so 
tliough  the  statute  speaks  of  "an  election." 
Calhoun  County  Sup'rs  v.  Galbraith,  99  U. 
S.  214.— Ckiticiseu  in  Woodrud  v,  Oko- 
lona,  57  Miss.  806. 

A  second  election  under  the  last  proviso 
of  section  i,  chapter  183,  Laws  of  1887  (Kan. 
Gen.  St.  1889,  p.  1283),  can  only  be  held 
for  the  same  purpose  for  which  the  propo- 
sition was  submitted  at  the  first  election. 
If  the  second  proposition  is  materially  dif- 
ferent from  the  first  as  to  the  amount  of 
stock  to  be  subscribed,  the  route  of  the 
railroad,  the  location  of  one  of  its  depots, 
and  the  time  for  its  final  completion,  it  wifl 
give  no  authority  for  a  subscription  under 
the  last  proviso  of  said  section  and  cliapter. 
Kansas  City  5^  P.  R.  Co.  v.  Rich  Tp.,  4^ 
Kan.  275,  25  Pac.  Rep.  595. 

Minn,  Sp.  Laws  1875,  ch.  132,  simply  pro- 
vide for  a  special  meeting  to  vote  upon  the 
question  of  issuing  bonds  in  aid  of  a  rail- 
way "whenever  ten  freeholders  shall  peti- 
tion the  proper  authorities  '  therefor,  and 
there  is  nothing  in  the  act  to  prevent  more 
than  one  election,  or  more  than  one  issue 
of  bonds.  Coe  v.  Caledonia  (5~»  M.  R.  Co., 
27  Minn.  197,  6  A'.   \V.  Rep.  621. 

A  favorable  vote  by  a  municipality  under 
the  above  statute  is  a  standing  ofler  to  sub- 
scribe, but  the  company  is  not  bound  to 
accept  it.  It  may  expressly  refuse,  or  im- 
pliedly do  so  by  some  act  inconsistent  with 
an  acceptance  or  amounting  to  a  waiver; 
but  may  procure  in  lieu  of  a  rejected  offer 
another  vote.  Coe  v.  Caledonia  6^  M.  R. 
Co..  27  Minn.  197,  6  N.  W.  Rep.  621. 

Under  the  charter  of  the  Western  North 
Carolina  R.  Co.,  passed  in  1855,  and  the 
amendment  at  the  next  session — held,  that 
the  justices  of  any  of  the  county  courts  of 
the  counties  along  the  line  of  the  road  are 
authorized  to  determine  on  an  amount  to 
be  subscribed  by  such  county  to  the  stock 
of  such  company,  and  to  submit  the  same 
for  the  approval  of  the  voters  of  such 
county,  notwithstanding  a  former  proposi- 


' 


, 


1 


: 


..^ 


MUNICII'AL   AND    LOCAL   AID,  117. 


683 


tion  to  subscribe  may  have  bctMi  submitted 
to  them  and  rejected.  Held,  fuitlier,  that 
such  subscriptions  may  be  made  tolics 
quolies,  as  the  emergencies  of  the  uiuier- 
takinj;  require.  (Pearson.  C.J.,  dissenting.) 
CaUiwcil  V.  Burke  County  Justices,  4  Jones 
Eg.  (N.  Car.)  323. 

Under  the  act  of  April  23,  1872  (69  Ohio 
L.  p.  84),  at  least  twelve  months  must  in- 
tervene between  special  elections  held  by 
the  same  municipal  autlwirity  for  or  against 
the  construction,  leasing,  and  operating  of  a 
proposed  railroad,  whether  the  elections 
have  relation  to  the  same  proposed  road  or 
to  other  and  different  roads.  Steisjart  v. 
Norivalk  Trustees,  22  Ohio  St.  323. 

A  city  empowered  to  loan  its  bonds  to  a 
railroad  upon  the  consent  of  two  tliirds  of 
its  electors  held  three  elections  at  which 
two  thirds  did  not  consent.  Held,  that 
the  city  was  not  estopped  to  hold  a  fourth 
election,  and  tlie  requisite  vote  being  then 
obtained  the  bonds  issued  were  valid. 
Society  for  Savings  v.  New  London,  2^  Conn. 
174. — Approved  in  Venice  v.  Murdock,  92 

U.  S.  494. 

117.  Notice  of  election.— (I)  Illinois. 
—Where  the  election  in  pursuance  of  which 
a  subscription  is  claimed  to  liave  been  made 
'  is  a  special  election,  authorized  by  law  to  be 
held  for  the  specific  purpose  of  deierniining 
whether  and  upon  what  conditions  the  sub- 
scription should  be  made,  the  act  prescribing 
the  notice  which  should  be  given,  the  ques- 
tion lies  at  the  foundation  of  the  power: 
and  if  it  is  not  shown  that  the  notice  was 
properly  given,  as  required  by  the  statute, 
there  will  be  no  inferences  in  favor  of  the 
validity  of  the  election,  and  the  power  will 
fail.  In  this  the  rule  is  different  from  that 
which  prevails  in  cases  of  elections  held 
under  the  general  election  law,  where  the 
time  of  holding  the  election  is  fixed  by 
statute.  People  ex  rel.  v.  Jackson  County 
Sup'rs.  92  ///.  441,  Williams  v.  People  ex 
rel.,  132  ///.  574,  24  N.  E.  Rep.  647. 

The  validity  of  town  bonds  does  not 
depend  upon  the  town  clerk  keeping  a 
proper  record  of  the  proceedings  authoriz- 
ing them  ;  but  where  it  appears  that  no  town 
ordinance  was  ever  passed  requiring  the 
town  clerk  to  give  a  notice  of  the  election 
to  determine  whether  the  subscription 
should  be  made,  and,  if  so,  on  what  terms 
and  conditions,  bonds  issued  in  pursuance 
of  such  an  election  are  void.    Jacksonville, 


.V.  W.  <S-  S.  E.   A\  Co.  V.  Virden,   104  ///. 
339- 

While  some  of  the  provisions  of  the  "act 
to  incorporate  tlie  Cairo  and  Vincenncs  R. 
Co.  .ue  repugnant  to  certain  provisions  in 
t'le  r,cneral  railroad  act,  there  is  no  sucL 
re;;  ignancy  between  the  two  acts  as  to 
justify  the  conclusion  that  the  requirement 
of  thirty  days'  notice  in  the  latter  act  was 
repealed  l)y  imi)lication  by  the  former  act. 
Williams  v.  People  ex  rel.,  132  ///.  574,  24  A', 
E.  Rep.  647. 

Where  the  charter  of  a  company  vested 
in  the  coiinty  court  the  discretionary  power 
to  call  an  election  to  vote  on  subscribing  to 
the  capital  stock  of  a  company,  but  failed 
to  prescribe  any  notice  to  be  given  of  the 
election — //(•/(/,  the  general  statute  applied, 
requiring  thirty  days'  notice.  Williams  v. 
People  ex  rel.,  132  ///.  574,  24  A'.  E.  Pep.  647. 
A  statute  authorized  any  county  through 
which  a  railroad  might  pass  to  subscribe  to 
Its  capital  stock  to  a  limited  amount  upon  a 
favorable  election,  and  required  thirty  days' 
notice  to  be  given.  A  later  act  authorized 
subscriptions  under  other  limitations,  which 
required  a  vote  of  the  people  "  in  such 
manner  as  the  county  authorities  may  de- 
termine," but  did  not  fix  any  time  for  which 
the  notice  of  election  should  be  given. 
Held,  that  the  latter  act  did  not  repeal  the 
prior  one  as  to  the  thirty  days'  notice  of  an 
election.  The  words  "  in  such  manner  as 
the  county  authorities  may  determine"  did 
not  necessarily  refer  to  the  time  of  notice, 
but  to  the  conditions  to  be  inserted  therein 
as  to  the  amount  of  the  subscription,  the 
time  the  bonds  are  to  run,  and  the  rate  of 
interest.  Harding  v.  Rockford,  R.  I.  tS-  .SV. 
L.  R.  Co.,  6s,  111.  90. 

But  even  if  the  county  authorities  had 
the  power  to  fix  the  time  of  the  notice  of 
the  election,  it  could  only  be  done  by  an 
order  or  resolution  entered  of  record,  and 
It  was  not  sulTicient  to  merely  direct  that 
an  election  should  be  "conducted  according 
to  law."  Even  if  the  former  act  was  re- 
pealed, the  general  statute,  which  required 
thirty  days,  would  govern,  and  an  election 
held  without  such  notice  was  invalid. 
Harding  v.  Rockford,  R.  I.  &^  St.  L.  R.  Co.. 
65  ///.  90. 

When  the  law  required  that  twenty  Icg;d 
voters  might  petition  a  town  to  call  an  clei; 
tion  to  vote  stock  to  a    railroad,  and  that 
notice  should  be  posted  at  least  t  venty  days. 


; 


n 


) 


I 


1 

5 


531 


MUNICIPAL   AND   LOCAL   AID,  117. 


hut  the  petition  was  signed  tiy  only  twelve 
lrj{ai  voters  and  llu!  notice  posted  for  only 
ten  I  lays-  //<■/»/,  that  theclection  was  a  nullity, 
and  conferred  nf)  power  to  stihs'  rihe  to  said 
stock  and  issue  bonds;  that  such  bonds  are 
invalid  in  the  hands  of  /lona  fidi'  holders, 
Williams  v.  liohiris,  88  //Air,  21  Am.  Hy, 
Hep.  268. 

Under  a  law  providing  for  a  vote  whether 
a  township  shall  issue  bonds  in  aid  of  a 
railroa<l  which  requires  the  town  clerk, 
upon  n-cciving  the  jjroper  petition,  to  "  im- 
mediately jjive  the  notice  recpiircd  by  law 
|.>r  an  election, "etc. — //<•/(/,  that  three  notices 
weri!  all  that  were  required  to  be  posted  of 
the  time  and  place  of  the  election,  the  same 
as  of  an  annuid  town  meeting,  and  not  five, 
as  the  law  then  required  in  case  of  a  special 
town  meeting.  Windsor  v.  Hallelt,  3  Ant, 
&*  EiifT.  A'.  Las.  76,  97  ///.  204. 

(2)  Indiamx. — Immediate  notice  is  a  Gon- 
dii ion  precedent.  In  case  it  be  not  given 
the  sherifT  is  to  give  such  notice  for  an 
election  at  another  time.  State  v.  liipley 
County  Com'rs,  9  Ind.  310. 

(3)  louui.~\n  view  of  the  fact  that  taxes 
in  aid  of  railroads  must  be  levied  by  the 
county  supervisors,  and  the  further  fact 
that  the  city  of  Davenport  is  coterminous 
with  the  civil  township  in  whicli  it  is  sit- 
uated— held,  that  a  variance  between  the 
petition  for  an  election  upon  the  question 
of  voting  a  tax  in  aid  of  a  railroad  and  the 
notice  of  such  election — the  petition  being 
for  a  tax  on  the  "assessed  value  of  the 
property  in  said  city,"  and  the  notice  being 
of  a  tax  "upon  the  assessed  value  according 
to  the  county  valuation"— was  immaterial, 
since  the  supervisors  could  not  be  presumed 
to  know  anything  of  any  valuation  except 
the  county  valuation,  liartemeyer  v.  Kohlfs, 
7 1  Imva  582,  32  A'.   W.  Rtp.  673. 

The  statute  does  not  require  that  notice 
of  an  election  upon  the  question  of  a  tax  in 
aid  of  a  railroad  shall  be  published  ten  days 
before  the  election.  It  is  sufficient  if  it  is 
<lone  "  immediately  "  after  the  petition  is 
tiled ;  that  is,  as  soon  as  the  newspaper 
selected  by  the  township  trustees  is  pub- 
lished. Johnson  v.  Kessler,  76  Iowa  411,  41 
N,  W.  A'ep.  57.  — Rkvikwino  Peoria  &  R. 
I.  R.  Co.  V.  Preston,  35  Iowa  115. 

A  notice  for  a  special  election  to  vote  on 
the  qut  stion  of  aiding  a  railroad  by  taxa- 
tion, which  fails  to  state  to  what  point  the 
road  shall  be  completed  before  the  tax  shall 
become  payable,  is   insuflic.ent  under  the 


.statute.  And  where  the  notice  provides 
only  that  fifty  miles  of  the  road  shall  be 
built  through  the  township,  and  the  cars 
running  thereon,  before  the  tax  shall  be  due, 
the  tax  voted  thereon  is  void.  Kteise  v. 
iialusha,  78  hnva  310,  43  A'.  W.  h'ep.  217.— 
DisriNciMsiiiM;  Hartemeyer  ?'.  Rohlfs,  71 
Iowa  582;  Hiirges  71.  Mabin,  70  Iowa  636. 
Imji.i.owini;  AlUird  v.  Gaston,  70  Iowa  731. 

(4)  J//>/«<.s('A».— The  posting  of  notices  on 
the  13th  day  of  a  iiKJiitii,  of  an  election  to  be 
held  on  the  23d  day  of  the  same  month,  to 
vote  town  aid  to  a  railroad  is  a  sufficient 
compliance  with  a  provision  of  a  statute  re- 
quiring such  notices  to  be  posted  "  at  least 
ten  days  prior "  to  the  election.  Coe  v. 
Caledonia  &*  M.  A'.  Co.,  27  Minn.  197,  6  N. 
W.  Hep.  621. 

An  ordinance  designated  the  15th  day  of 
May  as  the  day  for  holding  an  election,  and 
directed  the  city  clerk  to  give  ten  days 
notice  thereof  by  publication.  The  ordinance 
was  first  published  May  5,  when  it  took 
effect.  The  notice  of  election  was  given 
simultaneously  with  the  publica:ion  of  the 
ordinance.  Held,  sufficient.  Warsop  v. 
Hastings,  22  Minn.  437. 

(5)  Nebraska. — Wlicrc  a  county  board 
calls  a  special  election  in  a  township  of  the 
county,  under  the  provisions  of  Comp.  St. 
1887,  ch.  45,  §§  14-17.  and  gives  notices  of 
the  election  in  a  newspaper  published  in  the 
county,  the  county  is  liable  for  the  expenses 
of  publishing  the  notice  for  the  special  elec- 
tion. Kearney  County  v.  Stein,  26  Neh.  132, 
4t  N.  W.  Hep.  1071.— Distinguishing 
Center  Tp.  t.  Gilmore,  31  Kan.  675. 

In  giving  the  notice  and  causing  the  same 
to  be  published,  issuing  the  bonds  and  col- 
lecting the  tax,  the  county  board  acts  as  the 
officers  of,  and  on  behalf  of,  the  county,  and 
not  as  the  agents  of  the  township.  Kearney 
County  V.  Stem,  26  Neb.  132,  41  N.  W.  Hep, 
107 1. 

(6)  Ne^v  York. — The  provision  of  the  act 
of  1867  authorizing  the  villages  of  Sandy 
Hill  and  Fort  Edward  to  issue  bonds  to  aid 
in  the  construction  of  a  railroad  (§  5,ch.  953, 
Laws  of  1867).  which  requires  that  a  notice 
of  a  special  election  by  the  taxable  inhabi- 
tants of  cither  of  said  villages,  to  be  held  for 
the  purpose  of  voting  upon  the  question  of 
issuing  bonds  of  the  village,  shall  be  pub- 
lished "  for  -.a  least  two  weeks  previous  to 
the  time  .pnointed  for  such  election,"  is  not 
inconsisicnt  with,  and  was  not  repealed  by, 
the  amendatory  act  of  1868  (ch.  317,  Laws 


' 


. 


; 


i 


MUNICIPAL  AND   LOCAL   AID,  118. 


fi85 


of  1868).  People  ex  rvl.  v.  /•'/.  Edward,  70 
A'.  V.  28. 

Saul  provision  required  that  at  least  two 
weeks  should  intervene  between  the  pub- 
liciition  of  the  notice  and  the  election. 
Therefore  when  the  first  publication  of  the 
notice  was  upon  April  24,  1868,  for  a  meet- 
ing held  May  5,  1868— //fA/,  that  this  was 
not  a  compliance  with  the  statute,  and  that 
there  was  no  valid  election.  People  ex  rel.  v. 
Ft.  Edward,  70  N.   V.  28. 

(7)  Tennessee. — A  (allure  to  give  the  notice 
required  by  a  statute  of  an  election  to  au- 
thorize county  courts,  under  the  Tennessee 
statute,  to  take  stock  in  a  railroad  cannot 
prejudice  persons  who  vote  In  the  negative, 
.ind  they  cannot  take  advantage  thereof; 
and  as  such  piovision  is  only  directory,  a 
failure  to  give  tlie  notice  will  not  vitiate  an 
election  and  a  subscription  made  in  pursu- 
ance thereof.  Hard  v.  Kogersville  &*  J.  K. 
Co.,  3  Head (Tenn.)  208. 

118.  CoiitvatM  of  iiotiuo  of  elec- 
tion.—Where  persons  petition  the  super- 
visor to  call  an  election  and  name  a  number 
of  conditions  of  subscription,  and  the  super- 
visor gives  a  notice  without  specifying  any 
conditions,  and  the  vote  results  in  favor  of 
subscription,  the  omission  to  specify  the 
conditions  in  the  notice  will  not  invalidate 
the  bonds.  Marshall  v.  Silliman,  61  ///. 
2r8.— Followed  in  Quincy  v.  Cooke,  12 
Am.  &  Eng.  R.  Cas.  645.  107  U.  S.  549.  2 
Sup.  Ct.  Rep.  614. 

A  railroad  charter  authorized  towns  to 
subscribe  stock  to  the  amount  of  $35,000  on 
twenty  days'  notice  of  an  election.  After 
notices  were  posted  the  legislature  author- 
ized subscriptions  of  $100,000,  but  no  new 
ni)tices  were  posted.  Held,  that  the  vote 
only  authorized  a  subscription  of  $35,000. 
IVi'ley  V.  St'll/man,  62  ///.  170. 

VVlu-re  the  petition  filed  with  the  town 
rierk  for  an  election  upon  the  question  of 
donating  bonds  in  aid  of  a  railroad  stated 
the  time  the  bonds  were  to  run  and  the  in- 
terest they  were  to  bear — /leld,  that  an 
omission  in  the  notice  of  the  election  to 
state  these  facts,  when  the  notice  recited 
that  the  petition  was  filed  in  the  clerk's 
office,  would  not  vitiate  the  election.  C/it- 
catfo  &•  I.  R.  Co.  V.  Pinckney,  74  ///.  277. 

Under  the  Ind.  Act  of  May  12,  1869,  au- 
thorizing counties  and  townships  to  aid  in 
the  construction  of  railroads,  the  notice 
given  by  the  county  auditor  must  specify 
the  sum  to  be  appropriated ;  otherwise  the 


election  and  all  8ubse(|uent  proceedings  will 
be  v(jid.  Crooke  v.  Dainess  County,  36  Ind. 
320. 

Notice  of  the  election  which  specifics  the 
name  of  the  company,  and  that  the  aid 
voted  is  to  be  expended  by  sairl  company 
in  "the  construction  of  its  road  within 
Waterloo  and  Cedar  Falls  townships  on  the 
west  side  of  the  Cedar  river  above  Fllack 
Hawk  creek  in  said  county,"  is  sullicieiitly 
specific  as  to  the  line  of  the  road.  West  v. 
Whitakcr,  37  lo^va  598. 

A  tax  voted  in  aid  of  a  railroad,  under 
Iowa  Laws  of  1876,  ch.  123,  is  invalid  where 
the  notice  of  the  election  does  not  state  to 
what  point  the  road  must  be  completed  be- 
fore the  tax  shall  become  due.  Allard  v. 
Gaston,  70  Iowa  731,  29  A^.  W.  A'ep.  752. — 
FoLi.owKi)  IN  Klcise  v.  Galusha,  78  l(jwa 
310,  43  N,  W.  Rep.  217. 

A  notice  of  an  election  of  a  city  to  vote 
aid  to  a  railroad,  which  describes  the  road 
as  commencing  at  a  particular  place  in  the 
city,  to  run  thence  in  a  certain  direction  to 
a  designated  point  in  another  county,  "or 
to  a  point  nearer"  so  as  to  connect  with 
another  railroad,  is  sufficient  to  satisfy  the 
requirements  of  Iowa  Act  of  1884,  ch.  159, 
requiring  a  point  to  be  named  to  which  the 
road  shall  be  completed.  liartemeyer  v. 
Rohlfs,  71  Iowa  582,  32  A'.  W.  Pep.  673.— 
Distinguished  in  Kleise  v.  Galusha,  78 
Iowa  310,  43  N.  W.  Rep.  217. 

Where  the  notice  of  election  on  the  ques- 
tion of  voting  a  tax  in  aid  of  a  railroad  provid- 
ed :  "  One  half  of  said  tax  to  be  levied  and 
collected  in  the  year  1887  and  the  other  half 
in  the  year  1888,"  and  the  election  was  held 
on  the  25th  of  September,  1886,  and  the 
levy  made  on  the  29th  of  the  same  month — 
held,  that  the  levy  was  valid,  and  that  the 
notice  should  be  construed,  not  as  requir- 
ing the  tax  to  be  levied  and  collected  the 
same  year,  which  the  law  does  not  permit, 
but  to  be  so  levied  that  it  might  be  lawfully 
collected  one  half  in  the  year  1887  and  the 
other  half  in  the  year  1888.  liartemeyer  v. 
Rohlfs,  71  Iowa  582,  32  A'.  W.  Rep.  673, 

It  is  not  necessary  that  the  notice  under 
the  above  statute  should  state  the  date 
upon  which  the  work  shall  be  done  to  en- 
title the  company  to  the  tax.  It  is  sufficient 
if  it  provides  that  the  tax  shall  be  payable 
when  a  specified  amount  of  the  work  is 
done.  Bartemeyer  v.  Rohlfs,  71  Iowa  582, 
32  A^.   W.  Rep.  673. 

The  provision  of  Iowa  statute  requiring 


IT 


I 


586 


MUNICIPAL   AND    LOCAL   AID,  119,  120. 


it  to  be  stated  that  the  road  should  be 
••  fully  completed  "  to  a  designated  point,  to 
entitle  the  company  to  a  tax  voted,  only 
means  that  the  road  should  be  constructed 
and  the  cars  running  thereon  for  the  pur- 
pose of  carrying  passengers  and  freij^ht. 
Tiierefore  a  notice  requiring  that  the  com- 
pany should  have  its  road  ironed  and  cars 
running  thereon  to  a  specified  point  by  a 
fixed  date  is  sufficient.  Yarish  v.  Cedar 
Rapids,  I.  F.  &^  N.  VV.  li.  Co.,  72  Iowa  556, 
34  -V.   W.  Rep.  417. 

The  condition  on  which  a  tax  was  voted 
to  aid  ill  the  construction  of  defendant's 
road  was  stated  in  the  notice  to  be  that  the 
road  should  be  built  from  a  given  point  to 
some  point  of  intersection  with  another 
road,  so  that  there  would  be  a  continuous 
line  of  road  to  a  named  station  on  such 
other  road.  Held,  that  this  did  not  require 
that  defendant  should  build  a  continuous 
line  of  road  from  the  given  point  to  such 
station,  but  that  it  was  sufficient  that  such 
station  might  be  reached  by  a  continuous 
line  by  the  use  of  the  line  of  such  other 
roi  d  from  the  point  of  intersection  to  such 
station.  Young  v.  Webster  City  &*  S.  W. 
R.  Co.,  75  Iowa  140,  39  A'.  \V.  Rep.  234. 

110.  Proof  of  {riving:  notice.— The 
certificate  of  the  sheriff  that  he  has  posted 
notices  of  election  in  ten  public  places  in 
the  township  is  not  defective  for  not  speci- 
fying the  places,  and  such  certificr.te  is 
prima  facie  evidence  that  notices  have  been 
posted  in  ten  public  places  in  said  township. 
If,  in  fact,  notices  of  an  election  be  not 
posted  in  ten  public  places,  as  prescribed 
bv  the  statute,  the  electioi.  will  be  invalid. 
Detroit,  E.  R.  &^  I.  R.  Co.  v.  Rearss,  39  Ifid. 
598,  10  Am.  Ry.  Rep.  382. 

120.  Ketristration  of  voters.— At  an 
election  in  a  township  for  and  against  sub- 
scribing stock  to  a  railroad  under  the  char- 
ter, which  does  not  require  a  registry  of  the 
voters,  tlie  registry  law  of  1865  does  not 
apply,  the  presumption  being  that  this 
should  be  held  like  other  township  elec- 
tions.    Dunnovan  v.  Green,  57  ///.  63. 

At  a  county  election  to  subscribe  to  the 
capital  stock  of  a  railroad  the  regular  judges 
of  electioi.  in  two  townships  failed  to  act, 
and  those  who  were  selected  and  acted  in 
their  places  failed  to  use  the  registry  of 
voters.  Held,  that  the  carelessness  or  fraud 
of  acting  judges  in  not  using  the  registry 
list  could  not  be  held  to  deprive  the  elec- 
tors of  their  right  of  suffrage,  and   such 


neglect  of  duty  alone  did  not  invalidate  the 
election,  it  not  being  shown  that  any  illegal 
votes  were  cast  in  consequence  thereof. 
People  ex  rel.  v.  Logan  County  Sup'rs,  63 

HI-  374- 

The  provisions  of  the  Iowa  registry  law 
(ch.  171,  Laws  of  1868)  are  mandatory  and 
imperative.  An  election  without  registra- 
tion of  voters  is  void.  Nefzger  v.  Daven- 
port 6^  St.  P.  R.  Co.,  36  Iowa  642. 

While  the  provisions  of  the  Mo.  Constitu- 
tion of  1865  in  reference  to  the  registration 
of  voters,  and  the  statutes  enacted  in  pur- 
suance thereof,  >vere  in  force,  those  persons 
only  were  qualified  voters  whose  names 
were  placed  on  the  registration  books. 
This  was  the  final  qualifying  act,  ami  no 
matter  if  a  citizen  possessed  every  other 
qualification,  if  not  registered  he  was  not  a 
qualified  voter.  The  registration  books 
furnished  the  test  of  the  number  of  quali- 
fied voters  in  a  township.  State  ex  rel.  v. 
Drassfield,  67  Mo.  331.— DISTINGUISHING 
State  ex  rel.  v.  Mayor  of  St.  Joseph,  37  Mo. 
272 ;  State  v.  Binder,  38  Mo.  450. 

The  registration  books  of  the  voters  are 
admissible  in  evidence  to  determine  the 
number  of  qualified  voters  in  the  county. 
State  V.  Harris,  96  Mo.  29,  8  S.  W.  Rep. 

794. 

An  election  in  the  city  of  Wilmington 
upon  a  proposition  to  subscribe  to  the  cap- 
ital stock  of  the  Wilmington,  O.  &  E.  C.  R. 
Co.  should  be  held  and  determined  by  the 
registration,  properly  revised,  made  bienni- 
ally as  prescribed  in  its  charter,  for  city 
elections.  The  mayor  and  aldermen  have 
no  power  to  cause  a  new  registration  to  be 
made.  Smith  v.  Wilmington,  98  N,  Car, 
343,  4  S.  E.  Rep.  489. 

In  an  action  brought  to  have  an  election 
to  ratify  tlie  issue  of  bonds  to  a  railroad 
declared  void  and  to  restrain  the  issuing  of 
the  bonds,  it  was  made,  prima  facie  at  least, 
to  appear  that  the  election  was  not  called 
in  accordance  with  law ;  that  no  notice  of 
the  election  was  given;  that  no  opportu- 
nity was  given  for  registration  to  such  per- 
sons as  had  become  qualified  since  the  last 
election  ;  that  as  a  matter  of  fact  a  majority 
of  the  qualified  voters  did  not  vote  for  the 
measure;  and  that  there  were  various  other 
grave  irregularities.  Held,  that  an  injunc- 
tion until  the  hearing  should  be  granted  to 
restrain  all  action  under  and  in  pursuance 
of  the  election.  McDowell  v.  Massachusetts 
iS«   .S\    Constr.    Co.,  96    N.    Car.    514,    2    5. 


'1    ;- 


MUNICIPAL  AND   LOCAL  AID,  121-124. 


587 


E.   /iVA  351.— Followed    in  Goforth  v. 
Ruiherlord  R.  Constr.  Co.,  96  N.  Car.  535. 

121.  Opuuiiif;  polls.  —  Where  there 
are  two  voting  precincts  in  a  township,  an 
election  for  public  aid  to  construct  a  rail- 
road, when  the  polls  are  not  opened  in  both 
precincts,  is  void  under  Ind.  Rev.  St.  1881, 
§  4048,  and  in  such  case  no  tax  for  aid  can 
be  levied.  State  v.  Madison  County  Com'rs, 
92  Ind.  1 33. 

122.  The  ballots.  -Where  the  statute 
prescribe  !  that  the  ballots  used  should  con- 
tain the  words,  "  For  the  railroad  appropria- 
tion," and  at  the  election  a  large  portion 
of  the  ballots  cast  and  counted  contained 
only  the  words  "  For  the  railroad  " — held, 
that  the  casting  and  counting  of  such  bal- 
lots was  an  irregu'arity  which  would  not 
allect  the  validity  of  the  election.  Detroit, 
E.  A\  &^  I.  R.  Co.  V.  Bearss,  39  Ind.  598,  10 
Am.  Ky.  Rep.  382. 

The  form  of  the  vote  is  sufficiently  ex- 
plicit when  it  reads :  "  For  the  Lyons  rail- 
road." or,  "  Against  the  Lyons  railroad." 
State  V.  Bissell,  4  Greene  (Iowa)  328. 

The  notice  specified  that  "  those  in  favor 
of  aiding  in  the  construction  of  said  rail- 
road will  have  written  or  printed  on  their 
ballots  '  Taxation,' and  those  opposed  there- 
to •  No  Taxation."  "  Held,  that  ballots  hav- 
ins;  on  them  the  word  "  T.  ..tion "  were 
properly  counted  and  returned  as  "  For  Tax- 
ation."     West  V.  W.'iitaker,  37  loiva  598. 

When  the  trustee^'-  prescribed  that  the 
ballots  should  have  writton  upon  them  the 
words,  "  For  Taxation,"  or.  "  Against  Taxa- 
tion," and  certain  electors  cast  ballots  bear- 
ing the  words,  "  Against  taxation  for  the 
benefit  of  railroad  companies  or  any  other 
monopolies  to  the  indebtedness  of  the  poor 
man  "—held,  that  such  ballots  should  be 
counted  the  same  as  if  they  were  in  the  form 
p  escribed  by  the  trustees.  Cattell  v.  l.owry, 
45  hnva  478. 

123.  All  qualified  electors  may 
vote. — An  act  authorized  niunicipalities  to 
subscribe  for  railway  stock  after  submitting 
the  question  to,  and  being  approved  by,  "  the 
inhabitants."  Held,  that  "  inhabitants " 
meant  legal  voters.  Walnut  v.  Wade,  3 
Am.  iS^  Eng.  R.  Cas.  36,  103  U.  S.  683. 

Const  uing  the  amended  charter  and  the 
Ga.  constitution  together,  and  making  them 
harmonize  in  spirit  and  meaning,  the  proper 
mode  of  taking  the  sense  of  the  citizens  in 
1 87 1  on  the  question  of  subscribing  for  a 
gi\  en  amount  of  stock  in  a  certain  railroad 


was  to  order  a  public  election  by  all  the 
qualified  voters  of  the  city,  with  the  privi- 
lege to  each  and  every  qualified  voter  to 
vote  for  or  against  the  proposed  subscrip- 
tion. Mayor,  etc.,  of  Griffin  v.  Inman,  57 
Ga.  370. 

The  votes  of  a  majority  voting  at  such 
election,  though  a  majority  of  the  whole 
number  of  qualified  voters  did  not  vote  at 
all,  were  sufficient  to  warrant  the  mayor 
and  council  in  making  the  subscription. 
Mayor,  etc.,  of  Griffin  v.  Inman,  57  Ga.  370. 

When  the  question  is  whether  a  township 
ohall  aid  in  the  construction  of  a  railroad 
by  voting  a  tax,  all  the  voters  of  the  town- 
ship, including  such  as  reside  within  an  in- 
corporated town  which  lies  wholly  or  in 
part  within  the  township,  may  lawfully  vote 
at  such  election.  Chicago,  M.  &•  St.  P.  R. 
Co.  V.  Shea,  67  Iowa  728,  25  A'.  W.  Rep. 
901.— Following  Ryan  v.  Varga,  37  Iowa 
80. 

Where  a  proposition  to  subscribe  to  the 
stock  of  a  railroad  is  submitted  to  the  legal 
voters  of  a  city,  the  mistake  of  the  mayor 
in  instructing  the  election  office's  that  the 
payment  of  a  poll  tax  was  not  necessary  to 
entitle  persons  to  vote  at  that  election,  and 
the  receiving  of  illegal  voles  under  such  in- 
struction, does  not  render  the  submission 
of  the  question  illegal  and  the  election  void. 
Woollcy  V.  Louisville  S.  R.  Co.,  93  Ky.  223, 
19  .S.  W.  Rep.  595. 

Under  the  Minn,  constitution  it  is  not 
competent  for  the  legislature  to  authorize 
any  person  or  class  of  persons  other  than 
the  electors  or  the  officers  chosen  by  the 
electors  of  a  town  to  determine  what  ac- 
tion requiring  local  taxation  the  town 
will  take  in  any  particular  case.  There- 
lore  Minn.  Laws  1877,  ch.  106,  §  7,  which 
assumed  to  empower  a  majority  of  the  resi- 
dent taxpayers,  without  regard  to  whether 
they  were  electors  or  not,  to  bind  a  town 
to  issue  its  bonds  in  aid  of  a  railroad,  is 
unconstitutional  and  void.  Harrington  v. 
Plainview,  27  Mtnn.  224,6  A'.  W.  Rep.  777. 

1 24.  Liniitiii{7  riglit  to  vote  to  t'ree- 
iiolders.— Where  a  statute  authorizes  a 
county  to  subscribe  to  the  stock  of  a  rail- 
road company  upon  condition  that  the 
holders  of  the  real  estate  therein  should,  by 
a  majority,  vote  (or  such  subscription,  and 
the  question  is  submitted  by  the  county 
court  tf)  all  the  voters  of  the  county,  the 
levy  of  a  tax  (or  that  purpose  is  invalid. 
Bullock  V.  Curry,  2  Mete.  (,Ky.)  171. 


688 


MUNICIPAL   AND    LOCAL   AID,  125,  126. 


hi 


mi'" 


The  act  "to  authorize  the  citv  of  Mont- 
gomery to  aid  in  the  construction  of  the 
Soutii  and  North  Aiab.ima  niilroad,"  ap- 
proved Feb.  24,  i860,  whicli  authorizes  the 
corporate  authorities  of  said  city,  "  in  such 
manner  as  tliey  may  deem  expedient,  to 
take  the  sense  of  the  holders  of  real  estate 
in  said  city  upon  the  proposition  to  raise 
by  tax  upon  real  estate  "  a  specified  sum  to 
be  invested  in  stock  of  said  railroad  com- 
pany, requires  that  the  sense  of  all  the 
liolders  of  real  estate  in  the  city  shall  be 
ascertamed  by  an  expression  of  their  wishes 
pt!r  capita  before  the  proposed  tax  can  be 
levied  ;  and  an  election  held  under  an  ordi- 
nance of  the  corporate  autliorities,  by  which 
it  is  provided  that  the  vote  shall  be  taken 
pro  rata  according  to  ti)e  value  of  the  real 
estate  owned  by  the  respective  voters,  "  each 
voter  being  allowed  one  vote  for  every  hun- 
dred dollars  of  assessed  real  estate  owned 
by  him,"  is  not  a  compliance  with  the 
terms  of  the  act ;  and  although  it  appears, 
from  the  register  kept  by  the  manager  of 
the  election,  that,  of  all  the  persons  who 
voted  at  such  election,  a  majority  in  num- 
ber voted  for  the  tax,  this  does  not  cure 
the  defect  in  holding  the  election  on  illegal 
priliciples,  which  may  have  prevented  per- 
sons from  voting.  Montgomery  City  Coun- 
cil V.  State  ex  rel.,  38  Ala.  162. 

125.  A  majority  vote,  g^eiierally.* 
— Bonds  issued  upon  less  than  a  majority 
vote  are  illegal.  Onstott  v.  People  ex  rel., 
1 23  ///.  409,  \^  N.  E.  Rep.  34. 

Where  a  Missouri  statute  directs  a  county 
to  subscribe  for  railroad  stock  after  a  ma- 
jority of  the  voters  of  the  county  vote  in 
favor  of  it,  the  consent  of  a  majority  of  such 
voters  favorable  to  the  subscription  is  nec- 
essary to  its  validity ;  and  such  consent 
must  be  obtained  after  the  statute  takes 
effect,  which  is  ninety  days  in  that  state 
after  its  passage.  City  &*  County  of  St. 
Louis  v.  Alexander,  23  Mo.  483. — CRITI- 
CISED IN  State  ex  rel.  v.  Garroutte,  67  Mo. 
445.  Followed  in  Osage  Valley  &  S.  K. 
R.  Co.  V.  Morgan  County  Court,  53  Mo. 
156.  Reviewed  in  State  v.  Little  Rock, 
M.  R.  &  T.  R.  Co.,  31  Ark.  701 ;  State  ex 
rel.  V.  Macon  County  Court,  41  Mo.  453 ; 
Steines  v.  Franklin  County,  48  Mo.  167. 

Where  ten  persons  signed  a  petition  for  a 
town  vote  on  the  question  of  subscription 

*  Elections.  Majority  of  voters,  see  note,  15 
Am.  f:  Eno.  R.  Cab.  613. 


to  a  railroad,  but  three  were  not  legal  voters 
as  required  by  law,  and  there  was  a  major- 
ity of  one  against  subscription  after  reject- 
ing certain  illegal  votes  of  which  the  com- 
pany had  knowledge — held,  that  the  town 
could  not  be  compelled  to  make  the  sub- 
scription. People  ex  rel.  v.  Cline,  63  ///. 
394,  7  Am.  Ky.  Rep.  373.— Distinguishing 
Houston  V.  People  ex  rel.,  55  111.  398. 

In  case  of  a  tie  in  voting  on  a  municipal 
by-law  granting  debentures  in  aid  of  a  rail- 
way, there  is  no  authority  to  the  returning 
officer  to  give  a  casting  vote,  section  152, 
R.  S.  O.  1877,  ch.  174,  not  applying  to  such 
a  vote.  Canada  Atl.  R.  Co.  v.  Cambridge 
Tp.,  15  Can.  Sup.  Ct.  219;  affirming  14  Out. 
App.  299 ;  reversing  1 1  Ont.  392. 

120.  A  iiiiijority  of  the  votes  cast. 
— By  the  constitutional  provision  that  a 
majority  of  the  legal  voters  of  a  municipal 
corporation  must  vote  to  authorize  a  sub- 
scription to  stock  of  a  railroad  is  meant  a 
majority  of  those  voting  at  the  election. 
Black  V.  Cohen,  52  Ga.  621.  St.  Joseph  Tp. 
V.  Rogers,  16  Wall.  (U.  S.)  644.  2  Am.  Ry. 
Rep.  105.  Dunnavan  v.  Green,  57  ///.  63. 
People  ex  rel.  v.  Harp  Sup'rs,  67  ///.  62. 
Louisville  &*  N.  R.  Co.  v.  State,  8  Heisk. 
(7'enn.)  663,  19  Am.  Ry.  Rep.  107. 

Where  a  majority  of  those  voting  at  an 
election  for  the  issue  of  bonds  in  aid  of  a 
railroad  vote  in  favor  of  the  same,  whether 
as  a  subscription  or  donation,  for  the  pur- 
pose of  registration  it  will  be  presumed  that 
such  majority  was  a  majority  of  all  the  legal 
voters  in  the  municipality.  And  where  the 
authorities,  acting  upon  such  presumption, 
have  admitted  the  bonds  to  registration, 
and  the  municipality  has  treated  them  as 
properly  registered  by  paying  taxes  for  the 
payment  of  accruing  interest,  and  the  bonds 
have  passed  into  the  hands  of  innocent 
holders,  nothing  but  the  clearest  and  most 
satisfactory  proof  will  authorize  a  court  to 
enjoin  the  collection  of  a  tax  levied  on  ac- 
count of  such  bonds,  on  the  ground  that  the 
majority  voting  for  such  subscription  or  do- 
nation did  not  constitute  a  majority  of  the 
legal  voters.  Prairie  v.  Lloyd,  3  Am.  &^ 
Eng.  R.  Cas.  58,  97  ///.  179.— Following 
Melvin  v.  Lisenby,  72  111.  63. — Melvin  v. 
Lisenby,  72  ///.  63.— Followed  in  Prairie 
V.  Lloyd,  97  111.  179. 

A  law  provided  that  no  bonds  should  be 
issued  to  a  railroad  unless  a  majority  of  all 
the  legal  voters  of  the  county  should  vote 
for  the  same,  and  that  a  majority  of  the 


MUNICIPAL  AND    LOCAL   AID,  127,  128. 


589 


legal  voters  at  the  election  should  be  con- 
sidered a  majority  of  the  legal  voters  of  the 
county.  A  vote  was  had  at  a  regular  county 
election  at  whicii  3210  votes  were  cast,  1278 
favoring  the  subscription,  and  1275  against 
it.  Held,  that  the  vote  did  not  authorize  a 
subscription,  it  not  receiving  a  majority  of 
all  votes  cast  at  the  election.  Chest  nutwood 
v.  Hood,  68  ///,  132.— Distinguishing  Hol- 
conib  V.  Davis,  56  111.  413. 

127.  A  iiiujority  of  the  qiialitied 
voters. — Where  the  notice  of  an  election 
to  vote  bonds  to  a  railroad  contained  the 
condition  that  they  should  be  such  as  to 
entitle  them  to  registration  under  the  act 
of  1869  requiring  a  majority  of  all  the  legal 
voters  of  the  township — held,  that  a  ma- 
jority of  the  votes  cast,  but  less  than  a  ma- 
jority of  the  votes  in  the  township,  did  not 
authorize  the  issue  of  the  bonds.  Mc  IVhor- 
ter  V.  People  ex  rel.,  65  ///.  290. — FOLLOWED 
IN  People  ex  rel.  v.  Chapman,  66  III.  137. — 
People  ex  rel.  v.  Chapvian,  66  ///.  137. — 
Following  McWhorter  v.  People,  65  111. 
290. — Springfield  &*  I,  S.  E.  R.  Co.  v.  Cold 
Spring  Tp.  Sitp'rs,  72  ///.  603.  Onstott  v. 
People  ex  rel.,  123  ///.  489,  \i  N.  E.  Rep.  34. 

Under  the  act  of  1869,  §  7,  it  is  unlawful 
to  register  bonds  with  the  auditor  of  state 
until  the  railroad  in  aid  of  which  they  have 
been  voted  shall  be  completed  near  or  into 
the  limits  of  the  corporation,  and  cars  are 
running  thereon;  and  none  of  the  benefits 
of  the  act  can  be  claimed  unless  the  sub- 
scription or  donation  creating  the  corporate 
debt  was  first  submitted  to  an  election  of 
the  legal  voters  within  the  corporation, 
under  provisions  of  laws  of  the  state,  and  a 
majority  of  the  legal  voters  living  therein 
were  in  favor  of  such  aid,  subscription,  or 
donation.  Held,  that,  where  any  of  these 
requirements  are  wanting,  the  language  of 
the  act  being  imperative,  the  auditor  has  no 
power  to  make  the  assessment  of  the  tax, 
and  the  courts  will  enjoin  its  collection, 
Duniiovan  v.  Green,  57  ///.  63. 

But  when  the  bonds  are  once  registered, 
it  will  be  presumed  they  were  rightfully 
registered,  and  the  burden  of  establishing 
the  contrary  rests  upon  the  party  affirming 
it.  Prairie  v.  Lloyd,  3  Am.  &*  Eng.  R.  Cas. 
58,  97  ///.  179. 

The  Kansas  Curative  Act  of  Feb.  25,  1868 
(Gen.  St.  892),  was  intended  to  cure  irregu- 
larities in  the  proceedings  had  in  any  county, 
on  the  question  of  county  subscription  to 
railroads,  and  to  remove  all  technical  hin- 


drances to  the  carrying  into  effect  of  the 
will  of  the  majority.  It  was  not  designed, 
and  did  not  have  the  effect,  to  legalize  il- 
legal votes,  or  to  authorize  a  county  sub- 
scription of  stock  and  issue  of  bonds  with- 
out the  vote  of  a  majority  of  the  qualified 
electors  of  the  county  voting  upon  the  ques- 
tion. Atchison,  T.  (S^  .V.  /".  R.  Co.  \.  Jeffer- 
son County  Covt'rs.,  17  Kan.  29. — Approving 
Lewis  V.  Bourbon  County  Com'rs.,  12  K:in. 
186. 

The  provision  of  the  N.  V.  Act  of  1868, 
§  I,  providing  that  the  taxable  inhabitants 
"  may  at  such  meeting  by  a  majority  vote  " 
decide  as  to  raising  a  sum  for  the  purposes 
of  the  act,  required  a  majority  of  all  the 
taxable  inhabitants,  not  a  majority  of  the 
votes  cast.  People  ex  rel.  v.  Ft.  Edward,  70 
N.  Y.  28. 

It  is  essential  to  the  validity  of  bonds  is- 
sued in  aid  of  railroads  or  other  similar 
enterprises  by  counties,  townships,  and 
other  municipal  organizations  that  the 
proposition  shall  have  first  had  the  assent 
of  a  majority  of  the  qualified  voters  in  the 
territory  affected,  to  be  duly  ascertained  by 
an  election  regularly  held  for  that  purpose. 
Lynchburg  &>  D.  R.  Co,  v.  Person  County 
Com'rs.,  109  A'.  Car.  159,  13  S.  E.  Rep.  763. 

Where  the  returns  of  such  an  election 
ascertained  only  that  "  a  majority  of  the 
votes  cast  was  in  favor  of  subscription,"  and 
a  declaration  to  that  effect  was  made  by 
the  county  commissioners — held,  that  the 
constitutional  requirement  had  not  been 
observed,  and  a  mandamus  to  compel  the 
issue  of  the  bonds  so  alleged  to  be  author- 
ized was  properly  refused.  Lynchburg  &^ 
D.  R.  Co.  v.  Person  County  Com'rs.,  109  N. 
Car.  159,  13  S.  E.  Rep.  783. 

128.  Two-thirds  iiiiijorit.y.— In  or- 
der to  authorize  a  subscription  by  a  town  to 
the  stock  of  a  railroad  company  under  Me. 
Pub.  Laws  1867,  ch.  119,  not  only  the  vote 
to  raise  the  necessary  funds  and  to  use  them 
in  aid  of  the  road,  but  also  that  directing 
the  particular  method  of  affording  assist- 
ance (whether  by  loan,  or  by  subscribing  (or 
stock,  or  in  some  other  manner),  must  ap- 
pear to  have  been  carried  by  the  assent  of 
two  thirds  of  the  voters  present  and  voting 
at  the  town  meeting  at  which  the  subject 
was  acted  upon.  Portland  &>  O.  R.  Co.  v. 
Standish,  65  Me.  63,  10  Am.  Ry.  Rep.  in. — 
Distinguished  in  Lane?'.  Embden,  72  Me. 

354- 
Where  the  law  requires  the  assent  of  a 


690 


MUNICIPAL   AND    LOCAL   AID,   139. 


•i. 


m' 


15^ 

I'  ( 


■1 


n 


town  to  be  indicated  by  a  two-thiids  vote,  a 
niaiority  of  the  voters  may  recall  such  as- 
sent before  it  lias  become  binding  by  ac- 
ceptance of  the  town's  proposal  by  the 
party  to  whom  it  is  made.  If  there  is  any 
doubtful  question  under  such  a  provision,  it 
is  whether  a  minority  even,  comprising  more 
than  one  third  of  the  legal  voters  present, 
cannot  withdraw  or  rescind  the  former  vote. 
Ih'l/ast  &•  M.  L.  R.  Co.  v.  Unity,  62  Me.  148. 

The  maxim  "  omnia  prastimttntnr  rite*  *  * 
acta,"  etc.,  cannot  be  held  so  applicable  to 
such  a  state  of  facts  as  to  authorize  an  in- 
ference that  two  thirds  of  the  voters  at  the 
meeting  were  in  favor  of  the  subscription  ; 
but  it  is  rather  to  be  supposed  that  it  was 
not  thought  necessary  to  ascertain  anything 
more  tnan  that  it  received  the  assent  of  a 
majority  of  tliose  acting  upon  the  subject. 
PortlanU  &*  O.  A'.  Co.  v.  Standis/i,  65  Me. 
63,  10  Am.  Ry^  Rep.  iii.  —  Foi.KOWED  IN 
Stevens  v.  Anson,  73  Me.  489. 

A  town  meeting,  called  to  vote  aid  to  a 
railroad,  under  a  statute  which  requires  a 
two-thirds  vote,  may  adjourn  by  a  majority 
vote ;  and  the  adjourned  meeting  is  the  con- 
tinuation of  the  original  meeting.  Canton 
V.  Smith,  65  Me.  203. 

A  town  meeting  is  called  for  the  purpose 
of  each  and  every  article  in  the  warrant, 
though  one  article  requires  a  majority  vote, 
and  another  a  two-thirds  vote.  Canton  v. 
Smith,  65  Me.  203. 

Under  Miss.  Const,  art.  12,  §  14,  the  au- 
thority of  the  legislature  is  necessary  to  en- 
able a  county,  city,  or  town  to  become  a 
stockholder  in  a  corporation,  or  lend  its 
credit  thereto,  and  this  authority  cannot  be 
granted  unless  two  thirds  of  the  qualified 
voters  of  such  municipality,  by  a  vote,  shall 
assent  thereto.  Hawkins  V.  Carroll  County 
Siip'rs,  50  Miss.  735.  —  Disapproved  in 
Carroll  County  v.  Smith,  in  U.  S.  556. 

A  provision  in  the  Miss,  constitution  that 
the  legislature  shall  not  authorize  a  county 
to  lend  its  aid  to  a  corporation  unless  two 
thirds  of  the  qualified  voters  shall  assent 
tliereto  does  not  require  an  assenting  vote 
of  two  thirds  of  the  whole  number  enrolled 
as  qualified  to  vote,  but  only  two  thirds  of 
those  actually  voting.  Carroll  County  v. 
Smith,  IS  Am.  &•  Etig.  R.  Cas.  606,  iii  U. 
S.  556,  4  Sup.  Ct.  Rep.  539.— Reconciling 
Williams  v.  Cammack,  27  Miss.  209. — Mo- 
bile Sav.  Bank  v.  Oktibbeha  County  Sup'rs,  24 
n;f.  Rep.  no. 

r':e  Mo.  Constitution  of  1865   provides 


that  the  legislature  shall  not  authorize  "  any 
county,  city,  or  town  "  to  become  a  stock- 
holder in,  or  to  loan  its  credit  to,  any  cor- 
poration or  company  "  unless  two  thirds  of 
the  qualified  voters  of  such  county,  city,  or 
town  *  *  *  shall  assent  thereto."  Jhld,  to 
include  townships;  and  bonds  voted  a  rail- 
road by  a  township  under  the  "  Township 
Aid  Act  "  of  1868,  which  requires  only  two 
thirds  of  the  votes  cast  to  be  in  favor  of 
such  subscription,  are  unauthorized  and  in- 
valid. Harshman  v.  Rates  County,  92  U.  S. 
569.— Approved  in  State  ex  rel.  v.  Brass- 
field,  67  Mo.  331.  Not  followed  in  Foote 
V.  Johnson  County,  5  Dill.  (U.  S.)  281. 
Overruled  in  Cass  County  v.  Johnston,  95 
U.  S.  T,6o.— State  ex  rel.  v.  Harris,  96  Mo. 
29,  8  S.   W.  Rep.  794. 

Tlie  General  Railroad  Law  of  Mo..  1866,  § 
17,  empowered  incorporated  towns  to  loan 
their  credit  to  railroads  and  issue  bonds. 
The  act  of  March  24,  1868,  enabled  counties, 
cities,  and  towns  to  fund  their  debts.  Tlie 
state  constitution  of  1865,  art.  n,  declares 
that  "the  general  assembly  shall  not  au- 
thorize any  county,  city,  or  town  to  become 
a  stockholder  in,  or  to  loan  its  credit  to, 
any  company "  unless  authorized  by  two 
thirds  of  the  qualified  voters.  Held,  that 
the  provisions  of  neither  act  can  be  carried 
out  until  the  vote  has  been  had,  as  required 
by  the  constitution.  Hill  v.  Memphis,  134 
U.  S.  198,  10  Stip.  Ct.  Rep.  562. 

Under  N.  H.  Gen.  St.  ch.  34,  §  16,  a  two- 
thirds  vote  at  a  legal  meeting  is  necessary 
to  appropriate  the  money  raised,  as  much  as 
it  is  to  raise  the  money  to  aid  in  the  con- 
struction of  a  railroad.  Monadnock  R.  Co. 
v.  Peterborough,  49  A'.  H.  281. 

Before  any  burden  can  be  imposed  upon 
a  town  under  this  statute  it  mwst  be  made 
to  appear  affirmatively,  not  only  that  the 
money  has  been  raised,  but  that  it  has  been 
appropriated  to  a  particular  road,  by  a  two- 
thirds  vote  of  the  legal  voters  of  the  town 
present  and  voting  at  a  legal  meeting  of  such 
town.  Monadnock  R.  Co.  v.  Peterborough, 
49  N.  H.  281. 

120.  Three  -  fourths  majority.  — 
A  municipality  passed  an  ordinance  to  issue 
bonds  in  aid  of  a  railroad,  if  approved  by 
the  people,  under  a  statute  which  only  re- 
quired a  majority  vote  therefor,  but  before 
the  election  was  held  and  the  bonds  issued 
a  new  constitution  of  the  state  was  adopted 
which  required  a  three-fourths  vote,  but  the 
town  went  on  and  issued  the  bonds,  recit- 


MUNICIPAL  AND   LOCAL  AID    130-132. 


591 


ing  that  tJiey  were  issued  under  the  former 
statute.  The  election  was  unanimous  in 
favor  of  the  bonds.  Held,  that  the  constitu- 
tion abrogated  th'^  provision  of  the  statute, 
;md  tiie  bonds  were  not  authorized.  Norton 
V.  Browns^iille  Taxing  Dist.,  36  Fed.  Rep.  99. 

130.  Failure  to  vote.  —  Where  a 
county  lias  contracted  to  convey  certain 
.<:\vamp  lands  in  aid  of  a  railway,  and  has 
submitted  the  ratification  of  such  contract 
to  a  vote  of  the  people  of  the  county,  it  is 
no  objection  that  it  was  not  submitted  to  all 
of  the  qualified  voters,  because  some  were 
absent  in  the  military  service  of  the  United 
States.  Cedar  Rapids  <S>»  M.  R.  R.  Co.  v. 
Boone  County,  34  Iowa  45,   5  Am-  /■''     Rep. 

59 

Unless  the  law  under  which  the  vote  is 
taken  intends  otherwise,  the  ballot  is  the 
test  of  the  number  of  electors  and  that  those 
who  refrain  from  voting  acquiesce  in  what 
the  majority  voting  do.  This  is  so  because 
of  the  insuperable  difficulty  of  getting  any 
other  mode.  Hawkins  v.  Carroll  County 
Sup'rs,  50  Miss.  735. 

The  "assent  "  of  the  qualified  voters  re- 
quired by  section  14,  art.  1 1,  of  the  Mo.  Con- 
stitution of  1865,  before  a  municipal  sub- 
scription could  be  made  to  the  stock  of  a 
corporation,  was  an  affirmative,  positive  act. 
Mere  inaction  of  the  voters  by  failing  to 
vote  did  not  express  assent  within  the 
meaning  of  that  section.  State  ex  rel.  v. 
Hrassfield,  67  Mo.  331.— APPROVING  Harsh- 
man  V.  Bates  County.  92  U.  S.  56^,  Criti- 
cising THE  PREVAILING  OPINION,  BUT  AP- 
PROVING    DKSSENTING     OPINION,     IN     CaSS 

County  V.  Johnston,  95  U.  S.  360.  Review- 
ing AND  APPROVING  State  V.  Sutterfield,  54 
Mo.  392. 

131.  DcteriniimtUtn  as  to  required 

majority.— Where,  under  an  act  in  pur- 
suance of  section  14,  art.  12,  of  the  Miss. 
Constitution  which  prohibits  the  legislature 
from  authorizing  any  county  to  subscribe  to 
the  capital  stock  of  any  corporation  unless 
two  thirds  of  the  qualified  voters  assent 
thereto,  the  board  of  supervisors  is  consti- 
tuted the  tribunal  to  determine  whether, 
at  an  election  held  for  that  purpose,  the 
requisite  majority  has  been  given ;  and 
after  such  determination,  and  the  issuance 
of  bonds  reciting  a  compliance  with  prelim- 
inary conditions,  the  county  is  estopped  as 
against  innocent  purchasers  for  value  to 
deny  the  validity  of  the  bonds  upon  the 
ground  that,  as  a  matter  of  fact,  less  than 


two  thirds  of  the  qualified  electors  voted  for 
the  subscription,  and  that  the  registration 
lists  of  the  county  show  this.  Madison 
County  Sup'rs  v.  Brown,  29  Am  &-•  Eng. 
Corp.  Cas.  157,  67  Miss.  684,  7  So.  Rep.  516. 

Although  it  is  a  constitutional  require- 
ment that  the  subscription  shall  not  be  made 
except  upon  a  two  thirds  vote,  the  legislature 
is  not  prohibited  from  designating  a  tribu- 
nal which  is  to  determine  the  essential  fact 
as  to  a  proper  majority.  Nor  does  the  con- 
stitution prescribe  the  evidence  upon  which 
such  tribunal  is  to  act.  It  does  not  make  a 
variable  registration  list  a  record,  importing 
verity,  from  which  alone  this  determination 
is  to  be  made.  It  is  to  be  made  by  the  board 
of  supervisors  upon  investigation,  ascertain- 
ment, and  the  exercise  of  judgment.  There- 
fore, regardless  of  what  the  registration  lists 
show,  the  decision  of  the  board  as  to  the 
fact  of  a  two-thirds  majority  is  conclusive 
against  the  county  in  any  controversy  with 
bona  fide  holders  of  the  bonds.  Madison 
County  Sup'rs  v.  Brown,  29  Am.  &*  Eng. 
Corp.  Cas.  157,  67  Miss.  684,  7  So.  Rep.  516. 
—Following  Mayor,  etc.,  of  Vicksburg  v. 
Lombard,  51  Miss,  iii  ;  Cutler  z>.  Madison 
County  Sup'rs,  56  Miss,  115;  Madison 
County  Sup'rs  7/.  Paxton,  57  Miss.  701. 

By  section  5  of  the  Tex.  Act  of  April  12, 
1871,  a  special  meeting  of  the  county  court 
shall  be  held  on  the  first  Monday  after  the 
return  day  of  such  an  election,  when  the 
court  shall  ascertain  and  record  the  result  of 
the  election  ,  and  if  two  thirds  of  the  quali- 
fied voters  of  the  county  shall  have  voted  in 
favor  of  the  proposition  at  such  election, 
then  it  shall  be  the  duty  of  the  court  to  make 
such  orders  and  adopt  such  regulations  as 
will  give  practical  effect  to  the  proposition 
so  voted  for.  Under  this  authority  the 
county  court  had  authority,  and  it  was  the 
duty  of  the  court,  to  ascertain  whether  or 
not  two  thirds  of  the  qualified  voters  had 
voted  for  the  proposition ;  to  do  this  it  had 
authority  to  use  the  appropriate  means  of  in- 
forming itself  so  that  a  correct  conclusion 
could  be  reached,  and  it  had  the  right  to  re- 
vise the  list  of  registered  voters  of  the  county 
and  drop  from  the  count  names  it  had  ascer- 
tained should  be  dropped  from  the  list. 
Austin  V.  Gulf,  C.  &•  S.  F.  R.  Co..  45  Tex. 
234,  13  Am.  Ry.  Rep.  172. 

132.  Certiflcate  of  clerk  of  elec- 
tion.— The  certificate  of  the  canvassing 
officer  as  to  the  result  of  an  election  to  sub- 
scribe to  railroad  stock  is  f>r-ma  facie  f  vi. 


1 


3 


*  '  ^«  »  m  «  ^«  ». 


593 


MUNICIPAL  AND   LOCAL  AID,  133. 


1.0 


-  4X 


ii 


dence  of  its  fairness,  but  may  be  impeached 
for  fraud  in  a  proper  case.  Preityiiian  v. 
Taziivell  County  Stip'rs,  19  ///.  406. 

If  the  certificate  of  the  clerlts  of  election 
required  by  Iowa  Laws  of  1870,  ch.  102,  is 
reasonably  susceptible  of  a  construction 
which  will  show  a  compliance  with  the  pro- 
visions of  the  statute,  such  construction 
will  be  given  it  notwithstanding  any  im- 
perfections in  form.  Casady  v,  Lowry,  49 
Iowa  523. 

The  certificate  of  the  clerk  of  election  re- 
quired to  be  executed  to  the  county  auditor 
by  ch.  123,  Iowa  Laws  of  1876,  before  the 
levy  of  a  tax  voted  under  its  provisions  is 
authorized,  must  contain  all  the  particulars 
enumerated  in  said  chapter,  in  addition  to  a 
copy  of  the  notice  under  which  the  election 
was  held  ;  a  reference  to  such  notice  for  any 
of  the  conditions  of  the  tax  is  not  a  sufficient 
compliance  with  the  statute.  Minnesota  (S-» 
/;  S.  R.  Co.  V.  Hiams,  53  Iowa  501,  5  ^V.  W. 
Rep.  703.— Distinguished  in  Chicago,  M. 
&  St.  P.  R.  Co.  V.  Shea,  67  Iowa  728 ;  Barte- 
meyerz/.  Rohlfs, 71  Iowa  582,  32  N.  W.  Rep. 

673- 

Under  the  Ala.  statute  the  managers  of 
an  election  were  appointed  by  the  mayor, 
and  were  required  by  the  act  to  certify  to 
him  the  result  of  the  election  ;  but  they  were 
not  constituted  a  special  tribunal  clothed 
with  the  exclusive  power  of  determining  the 
result,  nor  was  their  certificate  the  only  evi- 
dence of  the  result  which  the  city  council 
could  receive,  and  upon  which  they  could 
act.  Hence  their  failure  to  make  such  cer- 
tificate, or  the  failure  of  the  record  of  the 
proceedings  of  the  city  council  to  show  that 
•'  io,  does  not  invalidate  the  pro- 

t  ad  lyi  .  it  city  council,  nor  affect  the 
...   n  tv  o:  ax  levied  in  accordance  with 

tl  i,  x/-~i\\i  •){  •'-..-  Heciion.  Winter \.  Mont- 
go..  ;  .'  '.  Hcil,  7  Am.  (S«»  Eng.  R.  Cas. 
307,  65  .iU.  .,c;,. 

133.  Evidential  value  of  returns, 
poll  books,  etc.— Poll  books  are  admis- 
sible in  evidence  to  show  that  a  municipal 
subscription  to  the  stock  of  a  railroad  was 
ratified  by  a  vote  of  the  taxpayers.  So  are 
the  proceedings  of  the  city  council  showing 
the  result  of  the  election,  and  a  resolution 
of  the  council  instructing  the  mayor  to 
issue  the  bonds.  Hannibal  v.  Fauntleroy, 
105  U.  S.  408. 

When  it  is  proven  by  the  returns  of  an 
election  that  a  majority  of  the  taxpayers 
voted  in  favor  of  a  municipal  subscription 


to  the  stock  of  a  railroad,  it  is  not  necessary 
to  prove  that  the  persons  voting  for  the 
subscription  were  all  taxpayers  and  entitled 
to  vote.  Hannibal  v.  Fauntleroy,  105  U.  S. 
408. 

Where  the  issue  is  as  to  the  regularity  of 
a  municipal  subscription  to  railroad  stock 
and  the  election  authorizing  it,  a  certified 
co[)y  of  the  poll  book,  which  seems  to  be 
made  out  with  reasonable  conformity  with 
the  statute,  and  is  signed  by  the  judge  and 
clerk  of  the  election,  and  has  been  properly 
filed  in  the  clerk's  office  of  the  county,  and 
by  him  certified,  under  the  seal  of  the  court, 
to  be  a  true  copy,  is  admissible  in  evidence. 
Piatt  V.  People  ex  rel.,  29  ///.  54. 

Where  a  corporate  subscription  to  a  rail- 
road was  only  authorized  upon  a  favorable 
vote  by  a  majority  of  taxpayers,  and  a  call 
for  an  election  was  general,  but  a  large  ma- 
jority of  the  votes  cast  were  in  lavor  of  a 
subscription,  and  an  ordinance  of  the  town 
recited  that  the  vote  was  by  the  legal  voters, 
and  the  sworn  certificate  of  the  president  so 
stated — held,  on  a  bill  to  enjoin  a  tax  to 
pay  interest  on  the  bonds,  that  did  not  nega- 
tive the  legality  of  the  vote,  that  it  would 
be  presumed  that  a  majority  of  taxpayers 
did  vote  for  it.    Deker  v.  Hughes,  68  ///.  33. 

Where  the  commissioners  omit  to  pre- 
scribe by  order  the  time  and  place  of  mak- 
ing the  canvass,  and  where  a  majority  of  the 
votes  cast  are  against  the  proposition,  a 
canvass  made  by  the  commissioners  which 
shows  a  majority  in  favor  of  the  proposition, 
when  the  canvass  appears  upon  its  face  to 
be  partial,  and  not  to  include  the  returns 
from  some  townships,  does  not  conclude  the 
county  as  to  the  vesting  of  authority  in  the 
commissioners,  and  is  notice  sufficient  to 
put  every  one  on  inquiry  as  to  the  actual 
state  of  the  vote;  and  when  the  returns 
from  the  uncounted  townships  are  filed  in 
the  county  clerk's  office  on  the  very  day  of 
the  canvass,  and  are  placed  with  the  other 
retmnsand  so  remain,  every  one  is  charged 
with  notice  of  the  actual  result  of  the  elec- 
tion. Lewis  V.  Bourbon  County  Com'rs,  12 
Kan.  186. 

Where  returns  are  made  of  an  election 
voting  aid  to  a  railroad  declaring  that  the 
majority  of  the  legal  votes  were  in  favor  of 
the  subscription,  it  will  be  presumed  that  the 
majority  did  so  vote  until  it  is  shown  to  be 
otherwise.  IVoolley  v.  Louisville  Southern 
R.  Co.,  93  Ky.  223,  19  .S.  IV.  Rep.  595. 

Where   the  town  clerk's    record  of  the 


• 


^ 


MUNICIPAL  AND   LOCAL  AID,  134-130. 


593 


the 


doings  at  a  town  meeting,  after  mentioning 
tiie  state  of  the  vote  upon  the  proposition 
to  aid  in  the  construction  of  a  railroad  to 
tiic  amount  indicated,  declares  that  it  was 
voted  that  sucii  sum  be  liired  and  iippro- 
priatcd  to  pay  for  a  specilied  numljer  of 
shares  without  saying  by  what  majority  this 
vote  was  carried,  no  implication  of  law 
arises  that  ilie  proportion  of  legal  voters 
present,  and  voting  upon  this  proposition 
necessary  for  its  adoption  by  tiie  meeting, 
were  in  its  favor.  Portland  &-  O.  A'.  Co.  v. 
Stan<iis/i,6l  Me.  63,  \o  Ant.  Ry.  Rep.  in. 

134.  Proof  of  coiit<>iit!4  of  lost  re- 
turns.— Where  the  rec(jrd  of  a  notice  of 
an  election  to  vote  on  the  county  subscrib- 
ini,'  to  a  railroad,  and  of  the  result  of  such 
election,  is  lost,  it  is  competent  to  prove 
siicli  facts  by  parol.  Maxcy  v.  Williamson 
County,  72  ///.  207. 

Where  the  application  for  an  election  in  a 
town  to  vote  upon  a  donation  to  a  railroad, 
iind  the  notice  of  the  election  by  the  town 
clerk,  are  shown  in  writing,  and  the  return 
of  the  election  is  lost  or  cannot  be  produced, 
the  holding  of  the  election  and  the  returns 
showing  the  result  may  be  shown  by  parol 
evidence  to  sustain  the  validity  of  bonds  is- 
sned  under  such  election.  Prairie  v.  Lloyd, 
3  Avi.  &•  Eng.  R.  Cas.  58,  97  ///.  179. 

135.  Curative  acts.— The  legislature 
is  powerless  by  subsequent  enactment  to 
v;ilidate  a  void  election  of  a  town,  under  the 
lownsliip  system,  to  vote  aid  to  a  railroad. 
Williams  v.  Roberts,  ^'i  III.  11,21  Am.  Ry. 
Rep.  268. 

The  Kan.  Act  of  Feb.,  1868,  to  cure  de- 
f'cts  in  elections  to  vote  municipal  bonds  in 
ail!  of  railroads  and  to  authorize  the  bonds 
•(1  issue  includes  bonds  issued  prior  to  its 
passage.  Johnson  County  Com'rs  v.  Thayer, 
94  U.  S.  631. 

An  act  amending  a  railroad  charter  pro- 
vided that  incorporated  towns  or  townships 
along  the  line  of  the  road  might  vote  stock 
in  the  road  and  issue  bonds  in  payment,  and 
that  where  a  favorable  vote  had  already 
been  taken  the  bonds  so  voted  should  be 
issued  and  the  stock  subscribed  for.  Held, 
that  this  would  make  valid  bonds  issued 
under  such  prior  vote.  St.  Joseph  Tp.  v. 
Rogers,  16  Wall.{U.  5.) 644,  2  Am.  Ry.  Rep. 
105.— Followed  in  Carroll  County  v. 
Smith,  III  U.  S.  556. 

130.  RctroHpective  operation  of 
proliibitory  constitutional  amend- 
nioiitH.— ( I)  Mississippi.— W^^s,.  Const.  §  14. 
6  D.  R.  D.— 38 


ratified  Dec.  i,  1869,  which  declares  that 
"  the  legislature  shall  not  authorize  any 
county,  city,  or  town  to  become  a  stock- 
holder in,  or  to  lend  its  credit  to,  any  com- 
pany, association,  or  corporation  unless  two 
thirdsof  the  qualified  voters  of  such  county, 
city,  or  town,  at  a  special  election,  or  a  reg- 
ular election  to  be  held  therein,  shall  assent 
thereto,"  is  wholly  prospective.  It  does  not 
abrogate  previous  acts  of  the  legislature 
conferring  authority  to  subscribe  for  stock. 
Calhoun  County  Sup'rs  v.  Galbraith,  99  U. 
S.  214. 

(2)  Missouri. —  Railroad  charters  existing 
when  the  new  constitution  of  Missouri  of 
1865  was  adopted,  which  authorized  coun- 
ties to  subscribe  to  railroad  stock  and  issue 
their  bonds  in  payment  without  a  vote  of 
the  people,  were  not  affected  by  the  provi- 
sion of  the  constitution  requiring  a  two- 
thirds  vote.  Huidtkoper  v,  Dallas  County, 
2,  Dill.  (U.  S.)  171.— Approving  State  ex 
rel.  V.  Macon  County  Court,  41  Mo.  453 ; 
Smith  V.  Clark  County.  54  Mo.  58. — Ray 
County  V.  Vansycle,  96  U.  S.  675. — Follow- 
ing State  V.  Macon  County  Court,  41  Mo. 
453 ;  State  v.  Greene  County,  54  Mo.  540 ; 
State  ex  rel.  7>.  Sullivan  County  Court,  51 
Mo.  522 ;  Callaway  County  v.  Foster,  93 
U.  S.  570;  Scotland  County  t/.  Thomas,  94 
U.  S.  682 ;  Henry  County  v.  Nicolay,  95  U. 
S.  619. — Louisiana  v.  Taylor,  105  U.  S.  454. 
— Following  States.  Macon  County  Court, 
41  Mo.  453 ;  Smith  v.  Clark  County,  54  Mo. 
58. — Scotland  County  v.  Hill,  132  U.  S.  107, 
10  Sup.  Ct.  Rep.  26;  affirming  25  Fed.  Rep. 
395.  Schuyler  County  v.  Thomas,  98  U.  S. 
169. — Followed  in  Benton  County  z/.  Rol- 
lens,  26  Law.  Ed.  (U.S.)  213. —Ralls 
County  V.  Douglass,  7  Am.  &*  Eng.  R.  Cas. 
212,  105  U.  S.  728.— Following  State  v. 
Macon  County  Court,  41  Mo.  453;  Kansas 
City,  St.  J.  &  C.  B.  R.  Co.  ii.  Alderman,  47 
Mo.  349;  Statew.  Sullivan  County  Court,  51 
Mo.  522.— Followed  in  Dallas  County  v. 
McKenzie,  no  U.  S.  686. — Dallas  County  v. 
McKenzie,  15  Am.  &•  Ettg.  R.  Cas.  622,  no 
U.  S.  686i  4  Sup.  Ct.  Rep.  184.— Disapprov- 
ing State  ex  rel.  v.  Dallas  County  Court, 
72  Mo.  329.— Following  Ralls  County  v. 
Douglass,  105  U.  S.  728. — Scotland  County  V. 
Thomas,  94  W.  S.  682. — Following  State 
ex  rel.  v.  Sullivan  County  Court,  51  Mo. 
522;  State  ex  rel.  v.  Greene  County,  54  Mo. 
540 ;  Callaway  County  v.  Foster,  93  U.  S. 
567.— Followed  in  Ray  County  v.  Van- 
sycle, 96  U.    S.  675 ;    Benton    County    v. 


59-t 


MUNICIPAL  AND   LOCAL   AID,  137. 


i 


mMii  f 


■m 


,,  ,(• 


Rollens,  26  Law.  Ed.  (U.  S.)  21  y— Macon 
County  V.  Shores,  97  U.  S.  272. 

Where  a  railnjad  chartered  in  Missouri 
prior  to  1865  was  authorized  to  build 
branches,  and  counties  were  authorized  to 
subscribe  tliereto,  sucii  subscriptions  are 
not  subject  to  'he  provisions  of  the  state 
constitution  of  1865,  providing  that  author- 
ity to  make  municipal  subscriptions  to  rail- 
roads shall  not  be  given  except  upon  a  two- 
thirds  vote,  although  such  brancii  be  un- 
dertaken as  an  independent  enterprise  under 
a  statute  passed  after  the  adoption  of  the 
constitution.  Henry  County  v.  Nieolay,  95 
U.  S.  619.  Cass  County  v.  Giliett,  \oo  U,  S, 
585. — Following  Henry  County  v.  Nico- 
lay,  95  U.  S.  6ig.— State  ex  rel.  v.  Sullivan 
County  Court,  51  Mo.  522,  3  Am.  Ay.  Rep.  178. 
—  DiSTiNGUisHiNO  State  v.  Saline  County 
Court,  51  Mo.  350. — Approved  in  Nicolay 
V.  St.  Clair  County,  3  Dill.  (U.  S.)  163. 
Followed  in  Thomas  v.  Scotland  County, 
3  Dill.  (U.  S.)  7  ;  Smith  v.  Clark  County,  54 
Mo.  58;  Cooper  v.  Sullivan  County,  65  Mo. 
542 ;  Scotland  County  v.  Thomas,  94  U.  S. 
6S2 ;  Ray  County  v.  Vansycle,  96  U.  S.  675 ; 
Halls  County  v.  Douglass,  105  U.  S.  728. 

The  charter  of  the  Louisiana  &  Missouri 
River  R.  Co.,  which  was  granted  in  1859, 
autliorized  it  to  construct  a  railroad  by  a 
<:ertain  designated  route  "to  the  Missouri 
river  at'the  most  eligible  point,"  and  pro- 
vided that  it  should  be  "  lawful  for  the 
county  court  of  any  county  in  which  any 
put  of  the  route  of  said  railroad  "  might  be 
to  subscribe  to  the  stock  of  the  company. 
The  new  constitution  of  Missouri,  which 
went  into  effect  in  July,  1865,  provided  th-il 
tiie  general  assembly  should  "  not  authorize 
any  county,  city, or  town  to  become  a  stock- 
iiolder  ^n,  or  to  loan  its  credit  to,  any  com- 
pany, *  *  ♦  unless  two  thirds  of  the  quali- 
fied voters  of  such  county,  city,  or  town  at 
a  regular  or  special  election  "  should  assent 
tliereto.  In  1868  the  legislature  passed  an 
act  claimed  to  have  the  effect  of  amending 
the  original  charter,  and  authorizing  the  ex- 
tension of  the  road  to  a  point  beyond  the 
Missouri  river,  through  counties  south  of 
the  river  not  on  the  route  of  the  road  as 
originally  chartered.  Held,  that  even  if  the 
act  of  1868  was  valid  and  authorized  such 
extension,  yet,  as  the  counties  through  which 
the  extended  part  of  the  route  lay  were  not 
on  the  route  as  designated  in  the  original 
charter,  they  were  bound  by  the  provision 
qu'ited  of  the  constitution,  and  could  not 


subscribe  to  the  road  without  first  submit- 
ting the  question  to  a  vote  of  the  people. 
State  ex  rel.  v.  Saline  County  Court,  5 1  Afo. 
350,  3  Atn.  Jiy.  Rep,  149.  — REVIEWING  State 
ex  rel.  7'.  Macon  County  Court,  41  Mo.  453. 

(3)  New  York. — Where  the  meeting  was 
properly  called  and  a  majority  vote  duly  re- 
ceived, the  constitutional  amendment  which 
went  into  effect  January  i,  1875  (art.  8,  Jl 
II),  providing  that  no  village,  etc.,  shall 
"give  any  money  or  property  or  loan  its 
money  or  credit "  to  any  individual  or  cor- 
poration, prevented  further  action  and  ren- 
dered all  prior  proceedings  null  and  void  ; 
and  therefore  a  mandamus  could  not  there- 
after issue  to  compel  the  issuing  of  village 
bonds.  People  ex  rel.  v.  Ft.  Edward,  70 
N.  V.  28.-F0LLOVVING  Buffalo  &  J.  R.  Co. 
V.  Weeks,  69  N.  Y.  491. 

(4)  Tennessee. — After  the  adoption  of  the 
Tenn.  Constitution  of  1870,  prohibiting  any 
county  from  aiding  or  becoming  a  stock- 
holder in  any  corporation  unless  authorized 
by  three  fourths  of  the  voters  thereof, 
county  authorities  have  no  power  to  .ratify 
previously  issued  void  railroad  aid  bonds 
without  a  vole  of  the  people.  Norton  v. 
Shelby  County,  1 18  i/.  5.  425,  6  Sup.  Ct.  Rep. 
1 121.— Reaffirming  Aspinwall  v.  Daviess 
County  Com'rs,  22  How.  (U.  S.)  365  ;  Wads- 
worth  V.  Eau  Claire  County  Sup'rs,  102  U.  S. 

534. 

137.  Vote  taken  before  adoption 
of  prohibitory  constitntional  amend- 
ment.— Under  the  III.  Constitution  of  1870 
corporate  subscriptions  to  railroad  compa- 
nies may  be  mafle  where  the  same  have  been 
authorized  by  a  vote  before  the  adoption  of 
the  constitution.  People  ex  rel.  v.  Logan 
County  Sup'rs,  63  ///.  374.— DISTINGUISH- 
ING People  ex  rel.  v.  Tazewell  County 
Sup'rs,  22  111.  147;  Aspinwall  v.  Daviess 
County  Com'rs,  22  How.  (U.  S.)  367. 

A  municipal  subscription  in  aid  of  a  cor- 
poration not  authorized  by  vote  prior  to 
July  2,  1870,  IS  void,  and  the  burden  is  on 
those  asserting  the  validity  of  such  bonds 
to  show  they  were  issued  under  a  vote  prior 
to  that  time.  Wright  v.  Bishop,  88  ///.  302, 
21  Am.  Ry.  Rep.  301, 

A  county  or  other  municipal  corporation 
has  no  right  to  take  stock  in  a  railway  com- 
pany and  issue  its  bonds  in  payment  thereof 
except  when  the  same  has  been  voted  for 
in  pursuance  of  law  before  the  adoption  of 
the  constitution  of  1870,  and  not  then  ex- 
cept upon  the  terms  and  conditions  speci- 


mx 


MUNICIPAL  AND   LOCAL    AID,  137. 


595 


fied  in  the  vote  of  tlic  people.  Oiistott  v. 
jUvpleex  rel.,  123  ///.  489,  15  A'.  E,  Rep.  34. 
The  saving  clause  in  the  proviso  of  sepa- 
rate section  2  oi  the  constitution  of  1870,  in 
regard  to  municipal  subscriptions,  to  the 
effect  that  the  section  shall  not  affect  the 
rii^ht  to  make  such  subscriptions  where  the 
same  have  been  authorized  "  under  existing 
laws,  under  a  vote  of  the  people,"  etc.,  prior 
to  the  adoption  of  tiic  constitution  refers  to 
and  embraces  subscriptions  that  had  been 
authorized  by  a  vote  of  the  people  under 
laws  existing  at  the  time  the  vote  was 
taken.  Williams  v.  People  ex  rel.,  132  III. 
574,  24  A'.  E.  Rep.  647.— Disapproving 
Jonesboro  City  z/.  Cairo  &  St.  L.  R.  Co.,  no 
U.  S.  192. 

That  section  of  the  constitution  of  1870 
which  prohibits  municipal  subscriptions  to 
railroads  or  private  corporations  except 
upon  a  vole  of  the  people  of  the  munici- 
palities had  prior  to  ttie  adoption  of  the 
constitution  operates  to  prohibit  any  such 
subscription  unless  the  prior  vote  in  refer- 
ence thereto  was  had  under  an  existing  law. 
A  mere  voluntary  vote,  even  though  it  was 
directed  by  an  ordinance  of  a  city  in  which 
the  proposition  was  pending,  will  not  avail 
to  remove  the  restriction.  Qnincy,  M.  &^ 
P.  R.  Co.  V.  Morris,  84  ///.  410,  16  Am.  Ry. 
Rep.  494.  —  Quoting  Johnson  v.  Stark 
County,  24  111.  88.— Followed  in  Quincy 
V.  Cooke,  12  Am.  &  Eng.  R.  Cas.  645,  107 
Ij.  S.  549,  2  Sup.  Ct.  Rep.  614. 

Under  section  24  of  the  schedule  of  the 
constitution  of  1870,  exempting  the  city  of 
Quincy  from  the  prohibition  mentioned  so 
far  as  the  people  of  that  municipality  had 
voted  for  such  purpose  prior  to  the  13th 
day  of  December,  1869 — held,  that  a  vote 
on  the  subject  of  municipal  subscription 
had  by  the  people  of  that  city  in  pursuance 
of  an  ordinance  thereof,  but  not  under  any 
then  existing  law,  was  valid  and  effectual 
for  the  purpose  of  such  subscription. 
Quincy,  M.  &*  P.  R.  Co.  v.  Morris,  84  ///. 
410,  16  Am.  Ry.  Rep.  494. 

A  subscription  by  the  city  of  Quincy  to 
the  capital  stock  of  the  Quincy,  Missouri  & 
Pacific  R.  Co.,  made  after  the  adoption  of 
the  constitution  of  1870,  in  pursuance  of  a 
vote  of  the  people  of  that  city  had  on  the 
7th  day  of  August,  1869,  not,  however,  un- 
der any  existing  law,  was  a  valid  and  bind- 
ing subscription,  and  the  city  was  author- 
ized to  issue  its  bonds  therefor  according 
to  the   conditions    upon   which    the    sub- 


scription was  made,  and  this  without  ref- 
erence to  the  validity  of  that  portion  of 
the  statute  which  took  effect  on  the  ist  day 
of  July,  1871,  purporting  to  legalize  the 
election  mentioned.  Quincy,  M.  (S-*  /'.  R. 
Co.  V.  Morris,  84  ///.  410,  16  Am.  Ry.  Rep. 

494- 

The  last  clause  of  section  24  of  the 
schedule  of  the  constitution  of  1870  left  the 
power  in  the  legislature  to  authorize  the 
city  of  Quincy  to  make  the  subscription 
precisely  as  it  was  under  the  constitution 
of  1848,  under  which  the  subscription  could 
have  been  authorized  without  any  vote  on 
the  subject  by  the  people,  and  that  author- 
ity was  conferred  by  the  act  in  force  July  i, 
187 1.  Quincy,  M.  &^  P.  R.  Co.  \.  Morris, 
84  ///.  410,  16  Am.  Ry.  Rep.  494. 

111.  Act.  of  1869,  intended  to  cure  any  ir- 
regularities which  might  have  intervened 
in  ail  election  previously  held  for  the  pur- 
pose of  voting  subscriptions  by  municipal- 
ities to  ri'ilroad  corporations,  was  repealed 
by  the  new  constitution  of  1870,  which 
prohibited  such  subscriptions  except  when 
made  in  pursuance  of  an  election  held  prior 
to  the  adoption  of  the  constitution,  and  the 
right  to  issue  bonds  in  such  cases  depends 
upon  the  validity  of  the  election,  and  not 
upon  the  act  of  1869.  People  ex  rel.  v.  /nel- 
son County  Sup'rs,  92  ///.  441. 

Section  2  of  article  14  of  Illinois  Constitu- 
tion, which  went  into  operation  on  July  2, 
1870,  did  not  invalidate  township  bonds 
'issued  in  aid  of  a  railroad  pursuant  to  an 
election  held  on  that  day,  at  an  hour  prior 
to  the  closing  of  the  polls  of  the  general 
election,  at  which  the  people  voted  on  the 
adoption  of  the  constitution,  the  bonds  so 
issued  to  be  applied  in  discharge  of  a  dona- 
tion voted  in  1868,  to  be  paid  by  special 
tax.  Louisville  v.  Portsmouth  Sav.  Bank,  1 2 
Am.  6-»  Eftg.  R.  Cas.  589,  104  U.  S.  469. — 
Approving  Harter  v.  Kernochan,  103  U.  S. 
563.— Distinguished  in'  People  ex  rel.  v. 
Bishop,  ill  III.  124. 

Where  a  township  election  was  duly  called 
in  pursuance  of  a  statute  in  June,  1870,  upon 
the  question  of  a  donation  of  $10,000  in  aid 
of  a  railway  company,  to  be  paid  in  bonds 
when  the  railroad  should  be  completed  to  a 
certain  place,  and  the  election  was  set  for 
and  held  on  July  2,  1870,  the  same  day  the 
constitution  and  the  separate  article  pro- 
hibiting municipal  aid  to  railroads  or  pri- 
vate corporations  were  submitted  to  the 
people,  the  election  officers  using,  however. 


596 


MUNICIPAL   AND    LOCAL   AID,  i;i8-140. 


:•  L 


a  separate  ballot  box,  and  boll'  polls  were 
closed  at  the  same  time,  about  sunset — /le/if, 
that  it  could  not  be  said  the  vote  for  the 
donation  was  had  prior  to  the  adoption  of 
the  article  of  the  constitution  prohibitinj^ 
such  donations.  People  ex  rel,  v.  IWs/iop, 
1 1 1  ///.  1 24. 

In  determining  whether  the  election  in 
respect  to  tiie  proposed  municipal  aid  to 
the  railroad,  held  under  such  circumstances, 
was  or  was  not  prior  in  point  of  time  to  the 
adoption  of  the  separate  article  prohibiting 
such  aid,  the  court  declined  to  enter  upon 
the  inquiry  as  to  the  difTerence  in  time  be- 
tween sunset  at  the  particular  locality 
where  tlie municipal  election  was  held  and 
sunset  at  other  voting  places  in  the  state 
west  of  that  locality,  holding  that  the  term 
"sunset,"  as  used  in  the  schedule  to  the 
constitution,  requiring  the  polls  to  be  kept 
open  on  the  day  of  the  election  in  respect 
to  the  adoption  or  rejection  of  that  instru- 
ment, and  the  separate  article,  until  that 
time,  was  not  used  in  the  precise,  mathe- 
matical sense,  but  rather  in  a  more  practical 
sense,  requiring  only  a  reasonable  approxi- 
mation to  that  time.  People  ex  rel.  v. 
Bishop,  III  III,  124. 

Under  an  act  to  incorporate  a  railway 
company  passed  in  1867,  the  county  court 
submitted  a  proposition  to  the  voters  to 
subscribe  $100,000  to  the  stock  of  the  com- 
pany, but  gave  no  notice  of  such  submis- 
sion to  be  voted  on  by  the  people.  In  1869 
an  act  was  passed  declaring  all  elections 
held  under  the  act  of  1867  valid  and  bind- 
ing. After  the  constitution  of  1870  had 
taken  effect  the  county  court  directed  its 
clerk  to  make  the  subscription  voted.  Held, 
that  the  court  having  failed  to  exercise  the 
authority  conferred  upon  it  by  the  curative 
act  of  1869,  prior  to  the  adoption  of  the 
constitution,  the  authority  itself  was  re- 
voked by  that  instrument,  and  that  the  sub- 
scription and  bonds  issued  in  payment 
thereof  were  void.  Williams  v.  People  ex 
rel.,  132  ///.  574,  24  N.  E.  Rep.  647. 

1H8.  Required  to  be  beld  under 
general  election  law. — A  law  provided 
that  an  election  to  vote  aid  to  a  railroad 
should  be  conducted  in  the  manner  pro- 
vided by  law  for  general  elections.  Held, 
that  an  election  conducted  as  an  ordinary 
town  meeting,  without  any  registration  of 
voters,  and  without  judges  or  clerks,  con- 
ferred no  authority  to  make  a  subscription. 
People  ex  rel.  v.  Santa  Anna,  67  ///.  57. — 


Followed  in  People  ex  rel.  v.  Laenna,  67 
111.65.  QuoTKU  IN  Lippincott  7'.  Pana,  92 
III.  2^.— People  ex  rel.  v.  I.netma,  67  /' .  65. 
—  Foi.i.owiNO  People  ex  rel.  7/.  Santa  Anna, 
67  III.  ^-j.— Lippincott  v.  J'ana,  92  ///.  24; 
affirming  2  III.  App.  466,— yuoTiNc;  People 
V.  Santa  Anna,  67  111.  57  ;  People?/.  Laenna, 
67  III.  6s.—CAieajfO  &^  /.  A'.  Co.  v.  Maliory, 
S  Am.  Sf  Eng.  R.  Las.  139,  loi  ///.  -S3. 

Where  a  law  authorizing  a  municipal  sub- 
scription to  a  railway  upon  vote  provided 
that  "  no  vote  shall  be  taken  unless  at  a  reg- 
ular election  for  town  and  county  officers  " 
— /leld,  that  a  liberal  construction  of  the  act 
authorized  a  vote  at  an  election  for  either 
town  or  county  officers,  and  that  a  vote  at  a 
regular  election  for  county  officers  was  a 
substantial  compliance  with  the  law.  Ed- 
7iiards  V.  People,  88  ///.  340. 

Where  a  law  authorizing  municipal  sub- 
scriptions to  a  railroad  by  towns  in  counties 
under  township  organization  required  the 
elections  therefor  to  be  held  and  conducted, 
and  returns  thereof  made,  "  as  in  case  of  an- 
nual elections  "—held,  that  the  term  "  an- 
nual elections  "  did  not  mean  town  meet- 
ings, but  general  elections,  and  that  notice 
of  the  election,  under  the  general  election 
law,  was  sufficient.  Prairie  v.  Lloyd,  3  Am. 
&•  Eng.  R.  Cas.  58,  97  ///.  179. 

13J).  No  manner  of  eonductingr 
election  preHcribed.— Where  tlie  act  of 
the  legislature  is  silent  as  to  the  manner 
of  holding  and  conducting  an  election, 
then  it  may  be  conducted  in  the  manner 
prescribed  by  the  law  of  the  organization  of 
the  body  in  which  it  is  held.  People  ex  rel. 
V.  Laenna,  67  ///.  65.  People  ex  rel.  v. 
Butcher,  56  ///.  144,  4  Am.  Ry.  Rep.  103. 

140.  Elections  beld  prematurely. 
— County  bonds  in  aid  of  a  railroad  are  not 
invalid  by  reason  of  a  vote  being  taken  be- 
fore the  passage  of  the  law  authorizing  it, 
where  the  law  authorizes  the  adoption  of 
such  vote.  Leavenworth  County  v.  Barnes, 
94  U.  S.  70. 

An  election  held  after  the  passage  of  an 
act  by  the  legislature  authorizing  municipal 
aid  to  railroads,  but  before  such  act  goes 
into  efTect,  is  a  nullity.  State  v.  Little  Rock, 
M.  R.  (S-  T.  R.  Co.,  31  Ark.  701. 

The  taxpayers  of  a  county  may  maintain 
a  bill  in  equity  impeaching  the  validity  and 
continued  operations  of  proceedings  and 
resolutions  of  the  board  of  county  commis- 
sioners taken  professedly  under  acts  of  as- 
sembly authorizing  a  subscription  by  said 


.      / 


l^F 


MUNICIPAL  AND   LOCAL  AID,  141,  142. 


brt 


board  to  the  capital  stock  of  a  railroad  com- 
pany. The  popular  election  required  by 
Md.  Act  of  1872,  ch,  245,  should  have  been 
held  on  tiie  fourth  Monday  of  April,  1873, 
and  the  election  held  on  the  fourth  Monday 
of  April,  1872,  was  a  year  in  advance  of  the 
prn[)cr  time,  /ia/Z/i/iorf  1^  D.  P.  A\  Co.  v. 
Pumphrcy,  74  Mii.  86.  21  At  I.  Rep.  559. 

A  ciiy  charter  provided  that  the  council 
niiylit  submit  to  the  lej^al  voters  the  ques- 
tion of  subscribing  for  railroad  stock  by 
giving  in  some  newspaper  published  in  the 
city  at  least  ten  days'  notice  of  the  time 
and  place  of  the  election.  If  a  majority  of 
the  votes  cast  were  in  favor  of  taking  stock, 
then  the  council  should  authorize  the  mayor 
to  subscribe  for  the  stock,  and  the  council 
should  have  power  to  issue  bonds  therefor, 
and  to  levy  a  special  tax  to  pay  such  bonds, 
principal  and  interest.  The  charter  fur- 
ther provided  that  no  ordinance  of  the 
council  should  be  in  force  until  published. 
Held,  that  an  election  was  not  irregular  or 
illegal  because  the  ordinance  authorizing 
the  submission  and  the  notice  of  tho  elec- 
tion were  both  published  at  the  same  time 
and  in  the  same  newspaper.  Clark  v.  Jaties- 
VI lie,  10  Wis.  136. 

Hut  on  a  second  appeal  and  amended 
pleadings  it  appeared  that  the  council  sub- 
mitted the  question,  the  people  voted  affirm- 
atively, the  subscription  was  made,  and 
bonds  issued  before  the  city  charter  was 
published  so  as  to  become  operative.  Held, 
that  after  it  took  effect  the  council  could 
not  make  the  subscription  or  issue  bonds 
without  again  submitting  the  question  to 
the  people;  neither  could  it  ratify  the  sub- 
scription already  made.  Clark  \.  /anesville, 
13  IVts.  414. 

A  resolution  of  the  supervisors  of  a  town 
to  subscribe  for  railroad  stock  was  passed, 
and  a  notice  of  an  election  was  given  after 
the  passage  of  a  statute  authorizing  such 
.subscription,  but  before  it  went  into  effect; 
but  it  was  in  force  before  the  day  of  the 
election.  Held,  that  the  objection  to  the 
ref^ularity  of  the  preliminary  proceedings 
was  not  sufficient  to  justify  a  court  of  equity 
to  cancel  the  bonds  at  the  instance  of  a  sin- 
gle taxpayer.  Saner  her  in^r  v.  Iron  R/djfe  &^ 
M.  A'.  Co.,  25  JV/s.  447. 

141.  Discretion  of  iiiiinicipnl  offl- 
cors  after  election. — Where  an  act  of 
thelegislature  simply  declares  thatacounty 
board  "  shall  have  power  "  to  issue  bonds 
in  aid  of  a  railroad  "  if  a  majority  of  the 


ballots  cast "  at  an  election  be  favorable 
thereto,  it  is  still  left  to  the  discretion  of 
the  board  whether  it  will  issue  such  bonds 
or  not.  Wadsjvorth  v.  St.  Croix  County,  4 
Fed.  liep.  378.  St.  Joseph  <S-  D  C.  R.  Co. 
V.  Puchanan  County  Court,  39  Mo.  485. 

The  proposition  submitted  to  a  vote  of 
the  citizens  at  an  election  was  whether 
the  city  should  issue  its  bonds  in  aid  of  a 
railroad  "to  an  amount  not  exceeding  one 
million  dollars";  and  the  election  having 
resulted  in  favor  of  the  proposition,  the  city 
council  had  a  discretionary  power  as  to  the 
amount  of  bonds  to  be  issued,  not  exceed- 
ing one  million  dollars,  and  might  confine 
the  issue  to  five  hundred  thousand  dollars. 
Winter  v.  Moiitf^oinery  City  Council,  7  Am, 
<S-  Eng.  R.  Cas.  307,  65  Ala.  403. 

A  vote  at  a  town  meeting,  called  to  vote 
upon  the  question  of  subscribing  stock  to  a 
railroad,  requiring  a  bond  to  be  given  for 
the  completion  of  the  road,  "  in  all  respects 
to  the  acceptance  of  the  selectmen,"  gives 
them  discretionary  power,  not  only  as  to 
the  obligors  of  the  bond,  but  also  as  to  its 
form  and  substance.  Canton  v.  Smith,  65 
Me.  203. 

Wis.  Acts  of  1867,  ch.  93  (under  which  a 
contract  was  made  to  deliver  town  bonds 
to  a  railroad  in  exchange  for  stock)  did  not 
confer  upon  the  town  officers  any  discretion 
as  to  issuing  the  bonds  after  a  submission 
by  them  of  a  proposition  by  the  company 
to  a  vote  of  the  electors,  and  an  acceptance 
thereof  by  such  vote;  but  the  agreement 
spoken  of  in  the  act  between  such  officers 
and  the  railroad  company  was  preliminary 
to  the  submission,  and,  when  made,  was  a 
contract  between  the  town  and  company, 
with  an  affirmative  vote  of  the  town  as  a 
condition  precedent.  State  ex  rel.  v.  Jen- 
nings, 48  Wis.  549,  4  A^.  W.  Rep.  641. 

142.  A8  to  vcHtcd  rights  in  result 
of  election. — Until  the  board  of  county 
commissioners  subscribe  to  the  stock  of  a 
railway  company,  and  authorize  the  payment 
thereof  in  the  bonds  of  the  county,  the  vote 
of  the  legal  electors  of  the  county  authoriz- 
ing such  subscription  to  be  mside  goes  for 
nothing.  People  ex  rel.  v.  Pueblo  County 
Com'rs,  2  Colo.  360,  20  Am.  Ry.  Rep.  237. 

The  provisions  of  a  charter  authorizing 
the  county  court  to  make  a  subscription 
for  the  stock  of  a  company  upon  the  vote 
of  a  majority  of  the  qualified  voters  of  the 
county  conferred  a  power  upon  the  county 
court  as  a  civil  institution  of  government. 


if  * . 


R98 


MUNICIPAL   AND   LOCAL   AID,  143,  144. 


which  could  be  modilk-fl,  chanjjcfl,  cnhiryed, 
or  rt'Straincd  hy  the  k'f,'islativc  autliority. 
The  mere  vote  to  8iil)scril)e  did  not  of  it- 
self form  siicii  a  contract  with  the  railroad 
company  as  wo\dd  be  protected  by  article  i, 
scctif)n  lo,  of  the  constitution  of  the  United 
States,  as  until  the  subscription  was  actually 
made  the  contract  was  unexecuted.  Cmii- 
hirland  Hr'  O.  A'.  Co.  v,  liarren  County  Court, 
lo  Hush  (Ky.)  604. 

Where  a  railroad  company  submits  a  prop- 
osition to  a  town  that  it  will  build  its  road 
thrf)ui^h  the  town  if  it  will  subscribe  so 
much  stock,  and  the  proposition  has  been 
submitted  to  a  vote,  which  was  favorable, 
and  the  bonds  have  been  issued  and  placed 
in  the  hands  of  a  trustee  to  be  htdd  until 
the  road  is  built,  after  it  is  built  the  pro- 
ceedings become  a  contract  mutually  bind- 
ing, which  cannot  be  rescinded  by  the 
people,  nor  aflfected  by  the  adoption  of  a 
constitutional  amendment  wliich  restricts 
the  power  of  municipalities  in  such  matters. 
Hound  v.  Wisconsin  C.  A'.  Co.,  45  IFis.  543. 

143.  Am  a  voiidltioii  prticcdciit  to 
Hiibscriptioii.  —  Before  a  county  court 
can  subscribe  stock  in  the  name  of  the 
county  an  alcction  must  be  held  by  the 
sheriff  of  the  county  after  giving  thirty 
days'  notice  of  the  same,  and  specifying  the 
amount  of  stock  proposed  to  be  taken,  and 
when  payable,  and  the  name  of  the  com- 
pany in  which  the  stock  is  proposed  to  be 
taken.  If  a  majority  of  the  votes  polled  be 
for  the  subscription  then  the  chairman  shall 
subscribe  the  amount  of  stock   so  voted. 

,A11  these  requisites  must  be  complied  with 
to  authorize  the  subscription  of  stock  by 
the  chairman.  Campbell  County  v.  Kno.x- 
villc  1^  K.  R.  Co.,  6  Coldw.  {Tenn.)  598. 
Bullock  V.  Curry,  2  Mete.  (Ky.)  17  r. 

Where  a  vote  of  the  taxpayers  is  made 
a  condition  precedent  to  the  power  of  a 
county  to  subscribe  to  railroad  stock,  and 
to  issue  its  bonds,  it  has  no  power  to  i-ssue 
such  bonds  until  such  vote  is  taken.  Lcdv- 
enivorth  &^  D.  M.  R.  Co.  v.  Platte  County 
Court.  42  .)/(>.  171.— Reviewed  in  Steines  v. 
Franklin  County,  48  Mo.  167.— Le^vis  v. 
Bourbon  County  Com'rs,  12  Kan.  186.— 
Quoting  Knox  County  Com'rs  v.  Aspin- 
wall,  21  How.  (U.  S.)  539— Approved  in 
Atchison.  T.  &  S.  F.  R.  Co.  v.  Jefferson 
County  Com'rs,  17  Kan.  29. 

144.  SpecitViii^r  tlio  aniniint.  — In 
order  to  obtain  the  necessary  assent  of  the 


voters  f)f  a  county  to  tin-  incurring  of  an  in- 
debtedness they  must  be  informed  of  the 
amount  of  such  indebtedness;  and  when 
neither  in  the  order  of  the  county  court 
calling  the  election,  the  notice  of  the  same, 
the  ballots  cast  thereat,  nor  in  tiie  order 
of  the  county  court  made  thereafter,  such 
amount  is  specified,  the  l  es  levied  to  pay 
such  indeirtedne is  are  void,  St.  Louis  iS««  .S'. 
/•".  A'.  Co.  v.  App'-rson,  97  Mo.  300,  10  ,S'. 
W.  Rep.  478. 

A  law  expressly  provided  that  the  sub- 
scription should  not  be  made  unless  a  ma- 
jority of  the  taxpayers  shouhl  vote  for  it, 
"  specifying  the  aujount."  The  order  of  the 
county  court  submitting  the  question  to 
the  people  called  on  them  lo  vote  for  or 
against  an  amount  "  not  exceeding  $70,000," 
leaving  the  precise  aniount  undetermined. 
The  entry  in  the  records  of  the  county 
court. subsequent  to  the  vote  declared  that 
the  election  resulted  "  in  favor  of  levying  a 
tax  of  $70,000."  In  mandamus  against  the 
court  to  compel  the  issue  of  the  bonds,  and 
levy  of  tax  for  their  payment — held,  that  such 
entry  was  not  a  conclusive  finding  of  the 
court  of  the  fact  that  the  taxpayers  voted 
to  subscribe  the  specific  sinn  of  $70,000, 
but  that  under  a  fiiir  interpretation  of  the 
record  it  showed  merely  that  the  question 
submitted  had  received  a  majority  of  the 
votes.  The  bonds  of  a  county  can  be  made 
valid  only  by  a  substantial  compliance  with 
the  law  that  authorizes  their  issue  ;  and  the 
failure  of  voters  to  specify  their  amoimt  in 
the  case  at  bar  rendered  bonds  issued  in 
pursuance  of  such  vote  invalid.  State  ex 
rel  V.  Saline  County  Court,  45  Mo.  242. — Dis- 
tinguished IN  State  V.  Saline  County 
Court,  48  Mo.  390. 

An  order  of  the  board  of  supervisors  of  a  , 
county  directing  an  election  "  whether  the 
board  of  supervisors  of  this  county  shall 
subscribe  to  the  capital  stork  of  said  rail- 
way company  the  simi  of  $3500  per  mile" 
is  sufficient  under  a  statute  which  author- 
izes subscriptions  "  to  an  amount  not  ex- 
ceeding thirty-five  hundred  dollars  per  mile, 
for  each  and  every  mile  of  railroad  the 
company  might  build  within  the  countv," 
without  stating  the  maximum  amount  to  be 
subscribed,  or  stating  length  of  road  in 
the  county,  so  that  it  might  be  ascertained 
therefrom.  Taylor  v.  Greenville  Countv. 
Sup'rs,  86  Va.  506,  29  Avt.  &^  Ens;.  Corp. 
Cas.  187,  10  S.  E.  Rep.  433. 


MUNICIPAL     iND   LOCAL   AID,  145-147. 


699 


145.  Itoiuls  ill  the  IiiiikIs  oi' bona 
fl<l«  lu»hlvr».*— Merc  iirt'i^ularitics  in  an 
election  to  vote  bonds  forsioiik  in  a  railroad 
cannot  l)c  taken  advantage  of  as  against  hona 
Jidf  holders  of  the  bonds,  where  the  bonds 
rt'cile  on  tiieir  face  tliat  an  election  was 
held  as  recjuired  by  law.  ]\ina  v.  lUnulcr, 
12  Am.  e^•  A>/<,'.  A'.  Cas.  563,  107  U.  S.  529, 
2  .SV//.  C'/.  A'f/>.  704. 

In  siicii  case  tlie  U.  S.  snprenie  court  will 
form  an  independent  judgment  as  to  the 
validity  of  the  btjnds,  and  will  not  feel 
bound  by  an  adverse  decision  of  a  state 
court  holding  them  voifl  for  the  irregulari- 
ties in  the  election.  J'tuia  v.  Jiowier,  12 
Am.  &•'  ling.  A'.  Gi.f.  563.  107  (/.  S.  529,  2 
.SV//1.  C/.  l\<p.  704. 

Where  municipal  bonds  for  stock  in  a 
r.iilroad  issue  in  good  faith,  atid  there 
•s  no  irregularity  in  their  consideration,  a 
•ncrt;  irr'igularity  in  the  election  voting  them 
will  not  throw  upon  a  holder  the  burden  of 
showing  tliat  he  acquired  the  bonds  for 
value.  Pana  v.  liffwlcr,  12  Am.  &*  Eng.  K, 
Las.  563,  107  U.  S.  529,  2  Sit/>.  U.  lii'p.  704. 

Under  the  law  a  two-thirrls  majority  of 
the  votes,  at  an  election  lield  for  that  pur- 
pose, is  necessary  to  authorize  the  loan  to  the 
railroads.  But  if  tiie  constituted  aiithori- 
tiesof  a  city^are  vested  with  exclusive  power 
and  duty  to  determine  tliiit  fact,  to  canvass 
tile  votes  and  declare  the  result,  then  their 
decision,  officially  promidgated,  that  there 
wMs  a  two-thirds  majority  in  favor  of  the 
loan  estops  the  city  from  setting  up  against 
\\  bona  fiiie\w\Acx  \.\\c  plea  that  the  official 
declaration  of  the  result  is  false.  This  ob- 
jection is  only  available  to  prevent  tlie  issu- 
ance of  the  bonds.  Mayor,  etc..  of  Vickshurg 
V.  Lombard.  51  Miss.  1 1 1.— Followed  in 
Madison  County  Sup'rs  v.  Rrown,  29  Am. 
.S;  ning.  Corp.  Cas.  157,  67  Miss.  684,  7  So. 
Rep.  516. 

An  111.  statute  provided  that  if  a  majority 
of  the  voters  favored  a  municipal  subscrip- 
t  ion  to  a  railroad  "  no  mistake  in  the  giving 
of  the  notice,  or  in  the  canvass  or  return  of 
votes,  or  in  the  issuing  of  the  bonds,  shall 
in  anv  way  invalidate  the  bonds  so  issued." 
An  election  was  held  on  a  call  of  twelve 
taxpayers,  when  the  statute  said  twentv; 
and  only  ten  days'  notice  of  the  election  was 
given,  when  the  statute  said  twenty.  Sub- 
sequently the  legislature  legalizod  thebonds 
issued  under  this  election.     Held,  that  the 


*  See  vXsQ  post.  351-376. 


bonds  were  valid  in  the  hands  of  bona  fide 
purcliaseis  indi'ij,  niicntly  of  the  act  to  vali- 
date lliem.     Nobirls  v.  Holies.  101  U.  S.  1 19. 

DisAi'i'KoviNi;  Williams  7'.  Kobirts,  88 
111.  II. 

(I'er  Napton,  Judge.)  The  Mo.  Act  of 
1855,  and  tin:  anu-ndmeiits  thereto,  required 
a  popular  V(Hc  to  authorize  the  issue  of 
Clark  county  railroad  bonds;  and  the  bonds 
recited  that  tliey  were  issued  as  authorized 
by  the  act.  lield,  that  the  holder  would 
have  a  right  to  presume  that  the  acts  had 
been  complied  with;  and  in  suit  on  the 
bond  by  a  hona  fide  holrler  without  actual 
notice  of  the  facts  the  defense  that  no  such 
popular  vote  hafl  been  taken  would  be  una- 
vailing. Smitii  V.  Clarl;  County,  54  Mo.  58. 
-QuoTiNd  Lexington  v.  Butler,  14  Wall. 
(U.S.)  2S3  ;  Flagg  v.  Mayor,  etc.,  of  Palmyra, 
33  Mo.  440;  Wood  V.  Allegheny  County,  3 
Wall.  Jr.  267.  Kki'K.krino  to  Steines  v. 
Franklin  County,  4S  Mo.  167.  Revikwing 
Grand  Chutew.  Winegar,  15  Wall.  355  ;  Pen- 
dleton V.  Amy,  13  Wall.  297.— Followed 
IN  Ralls  County  v.  Douglass,  105  U.  S.  728, 
Reviewed  in  State  ex  rel.  v.  Garroutte,  67 
Mo.  445. 

14<(.  ProviiKMt  of  l(>Ki»^latiiru  to 
r«>{;iilatc  <*h'cr<loii,— In  the  absence  of 
any  ronstitutional  restrictions  it  is  compe- 
tent for  the  legislature  to  prescribe  the  req- 
uisite majority  to  carry  a  measure  of  aid, 
and  unless  such  majority  vote  for  the  meas- 
ure it  fails.  liaiclciiis  \.  Carroll  County 
Sup'rs,  50  Miss.  735. 

An  act  regulating  the  manner  of  voting  in 
a  particular  county  in  "  all  votes  of  sub- 
scription and  taxation  therefor  for  railroad 
purposes"  applies  to  votes  where  the  ques- 
tion submitted  is  "whether  or  not  stock 
shall  be  subscribed."  and  not  merely  to 
votes  where  the  question  of  levying  a  tax 
is  submitted,  and  must  be  regarded  as  an 
amendment  to  a  railroad  charter  authorizing 
the  submission  of  the  question  "  whether 
or  not  stock  shall  be  subscribed."  Kentucky 
Union  R.  Co.  v.  Jiourbon  County,  85  Ky.  98, 
2  S.   jr.  Kep.  687. 

147.  Coiulitloiis  iiiipoNcd  by  vot- 
ers.—Where  a  statute  does  not  prohibit  it, 
it  is  competent  for  the  voters  of  a  village  in 
voting  aid  to  a  railroad  to  impose  such  con- 
ditions upon  the  issue  of  bonds  as  they  deem 
best,  provided  they  are  not  in  violation  of 
any  provision  of  the  statute,  and  not  pro- 
hibited by  any  rule  of  public  policy.  So  it  is 
competent  to  impose  as  a  condition  that  a 


GOO 


MUNICIPAL   AND   LOCAL   AID,  148. 


depot  shall  be  located  at  a  particular  place. 
C<>f  V.  Caltuionia  &^  M.  A\  Co.,  27  Minn. 
197.  6  A'.  W.  Kep.  621.— Followed  in 
Hoyt  V.  Braden,  27  Minn.  490. 

148.  SiibiiiisMioii  of  two  or  more 
|)ro|M>sitioiis  at  one  election.— It  is 
iires^ular  to  submit  propositions  for  ^b- 
scrii)ti()ns  to  more  than  one  railway  com- 
jiany  at  the  same  time  and  as  a  single  prop- 
osition, so  that  a  voter  must  vote  for  all  or 
none.  Williams  v.  People  ex  rel.,  132  ///. 
574,  24  A'.  E.  Rep.  647. — People  ex  rel.  v. 
liise^Lull  County.  22  ///.  147.— FOLLOWING 
Fulton  County  Sup'rs  v.  Mississippi  &  VV. 
R.  Co.,  21  111.  ^i^.— Fulton  County  Sup'rs  v. 
Mississippi  &^  IV.  N.  Co.,  21  ///.  33S.  — DIS- 
TINGUISHED IN  Shelby  County  Court  v. 
Cumberland  &  O.  R.  Co..  8  Bush  (Ky.)  209; 
Union  Pac.  R.  Co.  v.  Merrick  County,  3 
Dill.  (U.  S.)  359.  Followed  in  People 
ex  rel.  v.  Tazewell  County,  22  111.  147. 
Quoted  in  Alvis  v.  Whitney  43  Ind.  83; 
Lewis  V.  Bourbon  County  Com'rs,  12  Kan. 
i^6.  —  Garrii^us  v.  Parke  County  Com'rs,  39 
/nd.  66 —Followed  in  Indianapolis,  B.  & 
W.  R.  Co.  V.  Fountain  County  Com'rs,  39 
Ind.  215;  Bronenberg  7>  Madison  County 
Com'rs,  41  Ind.  502.  Quoted  in  Alvis  v. 
Whitney,  43  Ind.  83. — Bronenberg  v.  Madi- 
son County  Com'rs,  41  Tnd.  502. — F.^LLOW- 
ING  Garrigus  v.  Parke  County  Com'rs,  39 
Ind.  66. — Lewis  v.  Bourbon  County  Com'rs, 
12  Kan.  186. — Quoting  Fulton  County 
Sup'rs  V.  Mississ'Dpi  &  W.  R.  Co  ,  21  111. 
373;-  McMillan  7/,  .^  -e  County,  3  Iowa  311 ; 
Gelpcke  v.  Dubuque,  i  Wall.  (U.  S.)  175. 
— Christian  County  Court  v.  Smith,  (Ky.)  12 
S.  W.  Rep.  1 34.  Goforth  v.  Rutherford  R. 
Const r.  Co.,  96  N.  Car.  535,  2  5.  £".  Rep.  361. 

A  county  may  be  restrained  from  issuing 
bonds  in  pursuance  of  such  a  vote,  but 
when  issued  they  are  not  necessarily  void 
in  the  hands  of  a  bona  fide  holder.  Clarke 
V.  Hancock  County  Sup'rs,  27  ///.  305. 
Finney  v.  Lamb,  54  Ind.  i . 

Tiie  mere  fact  that  there  wasa  submission 
of  three  several  propositions  at  the  same 
time  to  the  vote  of  the  people,  all  other 
steps  being  regular,  would  not  of  itself  ren- 
der invalid  tiie  proceedings  under  such  sub 
mission.  McMillan  v.  Boyles,  3  Iowa  311.— 
QuoiED  IN  Lewis  V.  Bourbon  County 
Com'rs,  12  Kan.  186. 

When  the  county  judge  submitted  to  a 
vote  of  the  people  tliree  propositions  to  aid 
tiirce  several  railroads  by  subscribing  stock 
a:;!  issuing  bonds,  and  required  the  electors 


to  vote  on  each  proposition  separately,  and 
also  submitted  at  the  same  time  "  wiiether 
in  addition  to  the  usual  taxes  an  annual  tax 
of  not  exceeding  one  per  centum  *  *  ♦  from 
year  to  year  should  be  levied,  to  be  applied  to 
the  liquidation  of  the  principal  and  interest 
of  the  bonds  " — hild.  that  this  general  pro- 
vision for  a  tax  applied  to  all  three  was  not 
sutticieiit ;  that  each  proposition  should  be 
complete  in  itself  not  only  as  to  the  money 
to  be  borrowed,  but  also  as  to  the  tax  to  re- 
pay it.     .McMillan  v.  Boyles,  3  Lowa  311. 

Where  a  county  judge  submitted  three 
propositions  to  a  vote  of  the  people  to  aid 
three  several  railroads  by  subscribing  stock 
and  issuing  bonds,  and  stipulated  in  the 
proposition  and  notice  to  the  electors  that  a 
majority  of  the  votes  given  for  each  prop- 
osition should  be  considered  as  an  adop- 
tion of  the  same,  but  that  the  subscription 
should  not  be  made  to  either  unless  there 
should  be  a  majority  of  the  votes  cast  in 
favor  of  each  and  all  of  them — held,  that 
this  latter  clause  rendered  the  vote  illegal ; 
that  under  the  law  two  or  more  questions 
could  not  be  connected,  nor  could  the 
adoption  of  one  depend  upon  the  adoption 
of  all,  nor  could  any  condition  be  imposed 
to  defeat  a  proposition  adopted  by  a  ma- 
jority.    McMillan  v.  Boyles,  3  Iowa  311. 

Ky.  Act  of  March  17,  1870,  providing, 
among  other  things,  that  not  more  than  one 
question  for  taxation  shall  be  submitted  to 
the  voters  at  any  one  election,  is  not  re- 
pealed by  Ky.  Gen.  St.  art.  17,  eh.  28,  §  2, 
providing  the  manner  in  which  questions  of 
subscription  to  the  capital  stock  of  railroads 
is  to  be  submitted  to  a  vote.  Christian 
County  Court  v.  Smith,  (Ky.)  12  5.  W.  Rep. 

134- 

Where  an  election  on  a  proposition  to 
subscribe  to  the  stock  of  one  railroad  is 
void  on  account  of  being  voted  on  at  the 
same  time  that  a  proposition  is  voted  on  to 
subscribe  to  another  road,  which  is  prohib- 
ited under  the  statute,  the  subscription  to 
both  roads  is  not  thcrebv  void.  Christian 
County  Court  v.  Smith,  (Ky.)  12  S.   IV.  Rep. 

'34. 

Where  a  notice  was  given  that  a  vote 
would  be  had  for  and  against  subscribing 
$35,000  to  the  stock  of  a  railroad,  and  sub- 
sequently another  notice  was  given  for  an 
election  on  the  same  day  for  another  sub- 
scription to  the  same  road  for  anotlier  sum, 
both  elections  were  legal.  But  the  law  hav- 
ing limited  the  subscription  to  $35,000,  the 


MUNICIPAL   AND    LOCAL   AID,   149-151. 


601 


I 


i 


vote  of  the  town  meetirifj  was  wholly  unau- 
thorized. Marshall  v.  StlliDian,  6i  III.  218. 
—Followed  in  Wiley  v.  Siiliman,  62  111. 
170. 

A  proposition  submitted  to  the  legal 
voters  of  a  county  for  the  issuance  and 
donation  of  $36,000  of  its  bonds  to  aid  in 
constructing  the  railroad  therein  named, 
containing  a  provision  that  the  county  com- 
missioners should  be  authorized  by  a  two- 
thirds  vote  of  the  legal  voters  of  the  county 
to  issue  and  give  $36,000  of  its  bonds  to  aid 
in  constructing  such  railroad,  and  also  be 
authorized  by  a  similar  vote  of  the  legal 
voters  of  the  precincts  to  which  said  line  of 
road  should  be  located  to  issue  and  give 
$39,000  to  aid  in  such  construction,  such 
amount  of  precinct  bonds  to  be  made  up, 
etc. — /lelJ,  to  vitiate  the  election,  and  that 
the  issuance  and  delivery  of  the  bonds  voted 
thereon  would  be  enjoined.  Jones  v.  Hurl- 
btirt.  13  Nib.  125,  13  A'.  W.  Hep.  5.— Re- 
viewing AND  QUOTING  Monadnock  R.  Co. 
V.  Peterborough,  49  N.  H.  281. 

So  held,  also,  where  the  proposition  sub- 
mitted to  the  several  precinctsof  the  county 
was  whether  the  county  commissioners 
should  be  authorized  to  issue  bonds  to  a 
certain  aniount  to  the  A.  Co.  or  the  B.  Co. 
on  condition  that  they,  or  either  of  them, 
should  build  a  line  of  railroad  between  cer- 
tain specified  points.  Jones  v.  Hurlburt,  13 
Neb.  125.  13  A'.  IV.  Rep.  5.— FOLLOWED  IN 
Stiite  ex  rel.  v.  Roggen,  22  Neb.  118. 

149.  Bribery  of  voters.— If  a  ma- 
jority of  the  electors  of  a  municipal  cor- 
poration vote  in  favor  of  a  proposition  for 
the  corporation  to  subscribe  to  the  capital 
stack  of  a  railroad  company,  under  a  law 
directing  such  subscription  to  be  made  if 
such  majority  vote  is  obtained,  the  munici- 
pal iiuthorities,  011  proceedings  to  compel 
them  tf>  make  such  subscription,  have  a 
rigiit  to  alli  ,e  and  show  that  the  election 
was  not  fairly  conducted,  but  was  influenced 
by  bribery  and  corruption  practised  and 
perpetrated  by  the  railroad  con.panyand  its 
employes.  People  v.  San  Francisco  Sup'rs, 
27  Ciil.  655. 

In  a  complaint  attempting  to  set  aside  an 
election  to  vote  city  aid  to  a  railroad  on  the 
ground  of  illegal  or  bribed  votes,  an  averment 
"tbat  the  majority  of  those  voting  in  favor 
of  the  subscription  were  not  unbribed  "  is 
not  the  equivalent  of  averring  that  a  ma- 
jority of  the  voters  were  bribed.     Woolley  v. 


Louisville  Southern  R,  Co.,  93  Ky.  223,  19  S. 
\V.  Rep.  595. 

An  averment  "that  a  large  number  of 
voters "  were  bribed  will  not  be  construed 
to  mean  that  a  majority  of  those  voting  in 
favor  of  the  subscription  were  bribed.  Wool- 
ley  V.  Louisville  Southern  R.  Co.,  93  Ky.  223, 
195.  W.  Rep.  595. 

If,  pending  an  election,  prominent  citizens 
of  a  county  enter  into  an  agreement  with 
the  citizens  of  a  civil  district  to  subscribe  an 
amount  equal  to  the  tax  of  that  distr.fct,  to 
improve  the  public  road  leading  from  that 
district  to  the  terminus  of  the  railroad,  upon 
condition  that  the  proposition  to  take  stock 
receives  a  majority  of  the  votes  of  such  dis- 
trict, such  agreement  is  not  in  the  nature  of 
a  bribe,  does  not  contravene  public  policy, 
and  will  not  vitiate  any  of  the  proceedings. 
Horil  V.  Roger sville  &*  J.  R.  Co.,  3  Head 
( Tenn.)  208. 

150.  Fraud  in  election. — A  party 
complaining  of  fraud  in  a  municipal  election 
voting  aid  to  a  railroad  must  do  so  in  apt 
time.  If  fraud  existed,  he  is  supposed  to 
have  known  it,  and  should  have  proceeded 
at  once  to  enjoin  proceedings.  It  is  too 
late  to  delay  proceedings  for  four  months, 
until  rights  have  been  acquired  and  liabili- 
ties incurred  on  the  faith  of  the  subscrip- 
tion. Prettyman  v.  Tazewell  County  Sup'rs, 
19  ///.  406.    Butler  V.  Dunham,  27  ///.  474. 

151.  Cliange  of  route  after  elec- 
tion.—After  a  corporation  has  proposed  to 
build  a  road  upon  a  certain  route,  and  the 
people  of  the  county  have  voted  to  grant 
aid  thereto,  the  board  of  supervisors,  after 
accepting  a  proposition  to  grant  the  aid, 
may  authorize  the  corporation  to  diverge 
from  the  proposed  route  in  part.  Coleman 
V.  Marin  County  Sup'rs,  50  Cal.  493. 

After  a  township  had  voted  aid  to  a  rail- 
road, which  was  to  be  constructed  on  a 
designated  line,  a  law  was  passed  giving  the 
company  the  right  to  change  its  route,  and 
providing  that  the  taxpayers  of  the  town- 
ship might  vote  as  to  whether  the  bonds 
previously  issued  should  be  used  in  con- 
structing the  road  on  the  new  route.  The 
company  decided  not  to  change  the  route, 
and  was  pushing  the  work  to  completion 
on  the  old  route  when  an  election  was  or- 
dered. Held,  that  the  county  officers  were 
properly  enjoined  from  calling  the  election. 
Murfreesboro  R.  Co.  v.  Hertford  County 
Com'rs,  108  N.  Car.  56,  12  S.  E.  Rep.  952. 


I 


602 


MUNICIPAL  AND   LOCAL  AID,  152,  153. 


»-!;t 


r& 


1 1 


f 


152.  A  vote  to  subscribe  does  not 
iiiitboi-ize  SI  ifiil.— A  county  voted  to 
siil)scribe  jdoo.ooo  to  the  stock  of  a  railroad 
and  tt)  issue  its  bonds  therefor ;  but  before 
tlie  bonds  were  issued  the  county  authori- 
ties af;;reed  to  sell  the  stock  to  the  company 
for  $5000  in  bonds.  As  a  matter  of  fact 
the  county  only  issued  $95,000  in  bonds, 
and  received  back  no  stock.  JJi/d,  that  the 
transaction  amounted  to  a  gift,  and,  as  both 
the  statute  and  the  vote  contemplated  a 
subscription,  the  bonds  were  not  authorized, 
and  were  therefore  void.  Pos(  v.  Ptdaski 
County,  49  Fell.  Rep.  628,  9  U.  S.  App.  i ,  i 
C.  C.  A.  405  ;  affirmtttg  47  Fed.  Kep.  282  ; 
petition  for  certiorari  denied  in  145  U.  S. 
650,  12  Sup.  Ct.  Rep.  986.  —  Following 
Choisser  v.  People  ex  rel.,  140  111,  21,  29  N. 
E.  Rep.  546. 

And  such  bonds,  being  issued  without 
authority,  could  not  be  validated  by  a  sub- 
sequent act  of  the  legislature.  Post  v.  Pu- 
laski  County,  49  Fed.  Rep.  628,  9  U.  S.  App. 
t.  I  C»  C.  A.  405  ;  affirming  47  Fed.  Rep.  282  ; 
petition  for  certiorari  denied  in  145  U,  S. 
650,  12  Sup.  Ct.  Rep.  986. 

153.  When  a  popular  vote  is  not 
required.— The  legislature  may  authorize 
municipal  corporations  to  subscribe  to  the 
stock  of  railroads  without  a  previous  vote. 
So  bonds  issued  under  an  act  to  validate 
an  election  and  to  authorize  the  municipal 
authorities  to  issue  bonds  were  good,  inde- 
pendent of  the  power  of  the  legislature  to 
legalize  the  election.  Keithsburg  v.  Frick, 
34  ///.  405.— Followed  in  St.  Joseph  Tp, 
V.  Rogers,  16  Wall.  (U.  S.)  644;  Quincy  v. 
Cooke,  12  Am.  &  Eng.  R.  Cas.  645,  107  U. 
S.  549,  2  Sup.  Ct.  Rep.  614;  SchaefTer  v. 
Bonham,  95  111.  ^6^.— Perry  v.  Keene,  58  A'^, 
H.  40.  Howard  v.  Crawford  County,  i 
Pitt  sly.  (Pa.)  531. 

Under  the  111.  Constitution  of  1848  a  city 
council,  and  not  the  voters  thereof,  are  its 
"  corporate  authorities  "  for  the  purpose  of 
making  a  subscription  to  railroad  stock,  and 
may  be  authorized  to  make  such  subscription 
without  a  vote.  Quincy  v.  Cooke,  12  Am.  &^ 
Eng.  R.  Cas.  645,  107  [/.  S.  549,  2  Sup.  Ct. 
Rep.  614.— Following  Quincy,  M.  &  P.  R. 
Co.  V.  Morris,  J4  III.  410 ;  Keithsburg  v. 
Frick,  34  111.421;  Marshall  v.  Silliman, 
61  111.  225 ;  Williams  v.  Roberts,  88  111. 
21. 

Where  an  act  of  the  legislature  revised  the 
charter  of  the  city  of  Vicksburg,  defining  its 
limits,  creating  a  board  of  mayor  and  alder- 


men, and  making  them  successors  to  the 
mayor  and  council,  and  vesting  them  with 
extraordinary  power,  such  as  right  to  issue 
a  large  number  of  bonds,  anc,  lurther  pro- 
viding for  an  election  to  be  held  at  a  future 
day  named,  for  the  officers  in  the  act  named, 
and  repealed  all  other  acts,  but,  nevertheless, 
provided  that  said  act  take  elTect  after  its 
passage  —  /le/d,  that  an  election  was  not 
necessary  to  put  the  act  into  effect,  but  tliiit 
the  charter  went  at  once  into  operation,  ;itid 
that  the  powers  conferred  by  the  act  were 
not  restricted  to  the  board  of  mayor  and 
aldermen  thereafter  "  to  be  elected,"  l)iit 
might  legally  have  been  exercised  by  thj 
board  of  mayor  and  aldermen  who,  undtr 
the  general  law  for  filling  vacancies,  were 
appointed  for  the  interim  between  the 
date  of  the  passage  of  the  act  and  the  date 
of  the  election  thereafter  directed  to  be  held. 
Mayor,  etc.,  of  Vicksburg  v.  Lombard,  51 
Miss.  III. 

The  power  of  certain  counties  in  Missouri 
to  subscribe  to  the  stock  of  a  railroad  con- 
ferred by  Mo.  Act  of  March  10,  1859,  with- 
out a  vote  of  the  people  was  not  taken 
away  as  to  defendant  county  by  the  act  of 
March  24, 1868.  Foster  v.  Calliiway  County, 
3  Dill.  {U.S.)  200.— Reviewed  in  Merri- 
wether  v.  Saline  County,  5  Dill.  265.— 
Howard  County  v.  Paddock,  1 5  Am.  &>  Eng. 
R.  Cas.  621,  110  [/.  S.  384,  4  Sup.  Ct.  Rep. 
24. — Following  Callaway  County  7/.  Foster, 
93  U.  S.  567. 

The  action  of  the  directors  of  the  Kansas 
City  &  Cameron  railroad,  formerly  the  Kan- 
sas City,  Galveston  &  Lake  Superior  railroad 
in  determining  to  build  a  branch  railroad 
in  accordance  with  the  act  of  March  21, 
1868,  and  the  charter  «f  the  Kan.  C.  Gal.  & 
L.  Sup.  railroad  and  the  acts  amendatory 
thereto,  followed  by  the  partial  building 
thereof,  and  followed  by  their  own  consoli- 
dation with  the  Hannibal  &  St.  J.  railroad, 
did  not  deprive  such  branch  road  of  the 
privilege  of  subscriptions  from  county 
courts  of  the  counties  along  the  line  of  the 
road  without  a  prior  vote  of  the  pe()|)le 
therein,  such  privilege  being  contained  in 
the  original  charter  of  the  Kan.  C,  Gal.  & 
L.  Sup.  railroad ;  such  branch  road  was 
authorized  by  and  was  built  in  conformity 
to  the  provisions  of  the  original  charter, 
and  under  the  act  of  March  21,  1868,  though 
nominally  a  branch,  was  in  reality  a  distinct 
and  separate  road  from  the  Han.  ^  St.  (. 
railroad.     .'<t:ite  ex  rrl  v.  dr-iiie  County,  54 


MUNICIPAL  AND   LOCAL  AID,  154-156. 


603 


! 


^fo.  S40.— Followed  in  Scotland  County 
V.  Thomas,  94  U.  S.  682. 

A  by-law  of  a  county  council  in  aid  of  a 
railway  to  the  extent  of  $20,000  wliich  had 
been  submitted  to  the  ratepayers  under  the 
Municipal  Institutions  Acts  of  1866  was,  on 
that  ground,  quashed.  Clement  v.  Went- 
•worth  Cmtnty,  22  If.  C.  C.  P.  300. 

154.  Sub.scriptioii  without  election 
is  \oid. — Municipal  corporations  have  the 
power  to  make  a  subscription  to  the  stock 
of  a  railroad  company,  payable  in  the  bonds 
of  the  municipality,  upon  such  terms  and 
conditions  with  reference  to  the  prosecution 
of  work  on  the  railroad  as  may  be  deemed 
desirable,  to  provide  against  loss,  but  the 
board  of  county  commissioners  has  no 
power  to  make  such  subscription  in  behalf 
of  tlie  county  witliout  the  approval  of  the 
legal  voters  expressed  at  an  election  called 
pursuant  to  law.  Packard  v.  Jefferson 
County  Com'rs,  2  Colo.  338.  Carpenter  v. 
nuena  Vista  County,  5  Dill.  {U.  S.)  556. 
State  ex  rel.-v.  Garroutte,  67  A/o.  445. 
Winston  v.  Tennessee  &•  P.  K.  Co.,  i  Baxt. 
( Tenn.)  60. 

And  where  it  is  admitted  by  the  pleadings 
that  there  was  not  a  majority  of  the  legal 
votes  cast  at  the  election  in  favor  of  sub- 
scription, the  board  of  supervisors  can  nei- 
ther make  a  valid  subscription,  nor  make 
statements  or' pass  resolutions  to  bind  their 
county.  People  ex  rel.  v.  Logan  County 
Sup'rs,  63  ///.  374. 

The  supervisor  elected  in  a  particular 
town  and  the  town  clerk  thereof  are  not 
such  corpoiateauthorities  as  may,  under  the 
constitution,  be  authorized  by  the  legisla- 
ture to  create  a  corporate  debt  without  the 
consent  of  the  people  to  be  affected,  and  es- 
pecially is  that  the  rule  in  regard  to  super- 
visors who  do  not  even  reside  in  the  town 
or  vote  therein.  Schaeffer  v.  Ronham,  95 
///.  368.— Following  Middleport  v.  M\.x\2i 
Life  Ins.  Co.,  82  111.  562;  Keithsburg  v. 
Frick,  34  111.  420. 

The  provision  in  the  charter  of  a  Miss, 
town  that  the  mayor  and  selectmen  should 
have  the  power  to  contract  with  a  rail- 
road company  and  to  subscribe  to  its  stock 
on  "  such  terms  and  conditions  as  they  may 
stipulate  and  agree  upon  " — held,  not  to  au- 
thorize the  mayor  and  selectmen  to  issue 
bonds  for  a  subscription  made  without  a 
previous  vote  of  the  taxpayers.  Katzen- 
berger  v.  Aberdeen,  121  U.  S.  172,  7  Sup.  Ct. 
Kep.  947. 


In  all  cases  where  bonds  purport  to  have 
been  issued  by  a  delegated  power,  and  they 
could  not  have  been  issued  without  such 
power,  it  devolves  upon  a  holder  thereof  su- 
ing upon  the  same  to  show  that  the  power 
has  been  conferred  before  he  can  recover, 
even  though  there  be  no  plea  filed  denying 
the  execution  of  the  bonds.  Plaintiff's  evi- 
dence must  show  tha'  authority  to  issue  the 
bonds  has  been  given  by  an  election  con- 
forming to  the  law  which  was  favorable  to 
such  issue.     Carpenter  v.  Lathrop,  51  Mo. 

483- 

Mo.  Act  of  March  23,  i86i,§  2,  providing 
that  "  it  shall  not  be  lawful  for  the  county 
court  of  any  county  to  subscribe  to  the  cap- 
ital stock  of  any  railroad  company  unless 
the  same  has  been  voted  for  by  a  majority  of 
the  resident  voters  who  shall  vote,"  repeals 
the  power  given  by  the  act  of  Jan.  11. 1869, 
to  county  courts  to  subscribe  to  the  stock  of 
a  certain  company  without  a  previous  vote. 
State  ex  rel.  v.  Dallas  County  Court,  3  Am. 
&^  Eitg.  li.  Cas.  122,72  Mo.  329.— Disap- 
proved IN  Dallas  County  v.  McKenzie,  no 
U.  S.  686. 

155.  Power  cannot  be  delegated 
to  a  committee. — A  town  cannot  dele- 
gate its  power  to  any  committee  to  elect 
which  of  two  or  more  railroads  shall  be 
aided  by  the  town  by  the  appropriation  of 
money  raised  to  aid  in  the  construction  of 
a  railroad  under  the  statute.  Monadnock 
P.  Co.  V.  Peterborough,  49  N.  H.  28 1. — Re- 
viewed AND  QUOTED  IN  ones  7'.  Hurl- 
burt,  13  Neb.  125. — Spurck  v.  Lincoln  <S-  N. 
W.  A\  Co.,  14  A'^eb.  293,  15  N.  W.  Pep.  701. 
—Followed  in  State  ex  rel.  v.  Roggen,  22 
Neb.  118. 

What  the  statute  requires  to  be  done  by  a 
town  at  a  legal  meeting  cannot  be  done  by 
a  committee.  Monadnock  K.  Co.  v.  Peter- 
borough, 49  N.  H.  281. 

15C  Ratification  of  former  elec'* 
tion. — A  town  was  authorized  by  the  leg- 
islature to  guarantee  to  a  certain  amount 
the  second  mortgage  bonds  of  a  railroad 
company  on  the  town's  voting  at  a  meet- 
ing legally  called  for  the  purpose  to  give 
such  guaranty.  The  town  at  a  meeting 
illegally  warned  voted  to  authorize  its 
treasurer  to  guarantee  the  bonds  in  its 
name  on  certain  conditions,  one  of  which 
was  that  the  other  towns  on  the  road 
should  vote  to  guarantee  a  certain  amount 
of  like  bonds,  and  another  that  the  com- 
pany's bonds  of  the  siime  kind  to  twice  the 


I 
! 


»»— <ll»«l»». 


604 


MUNICIPAL  AND   LOCAL  AID,  157-169. 


^■r. 


i      i 


hi  ! 


amount  should  be  delivered  n  the  town  as 
collateral  security.  A  year  later,  at  a  meet- 
inn;  regularly  warned  and  held,  the  town 
voted  "  to  let  the  conditions  of  the  vote  of 
the  town  to  "guarantee  the  second  mortgage 
bonds  of  the  N.  H.,  M.  &  W.  Railroad  Co. 
remain  as  they  now  stand."  Ne/i/,  not  to 
be  a  ratification  of  the  former  invalid  vote, 
nnr  to  constitute,  by  reference  to  it,  a  vote 
to  guarantee  the  bonds.  Brooklyn  Trust 
Co.  V.  Hebron,  51  Conn.  22. 

157.  Second  election  to  modify 
result  of  former.  —  An  election  was 
held  under  the  Kan.  Acts  of  1865  and  1866 
authorizing  a  subscription,  and  the  issu- 
ing of  bonds  to  a  railroad  company  upon 
certain  conditions ;  and  another  election 
was  held  under  the  laws  as  they  existed 
on  the  22d  of  May,  1S69,  for  the  purpose 
of  changing  in  some  respects  such  condi- 
tions. Held,  that  said  second  election  was 
valid.  Morris  v.  Morris  County  Com'rs,  7 
Kan.  576. 

158.  Vote  for  subscription  as  an 
implied  vote  for.  taxation.— Where  the 
question  of  issuing  bonds  to  any  railroad 
conipany  is  submitted  to  the  people  of  a 
county,  but  without  accompanying  the  same 
by  a  proposition  to  levy  a  tax  to  meet  the 
liability  incurred — held,  that  bonds  issued 
in  pursuance  of  such  vote  are  void.  Ham- 
lin v.  Meadville,  6  Neb.  227. 

But  it  is  not  requisite  under  the  law  that 
there  should  be  a  distinct  provision  for 
levying  a  tax  separate  from  the  question  of 
borrowing.  McMillan  v.  Boyles,  3  Iowa  311. 

In  voting  aid  to  works  of  internal  im- 
provement, it  is  not  necessary  that  the 
proposition  shall  contain  a  provision  for  the 
levy  of  a  tax  to  pay  the  principal  of  the 
bonds,  but  simply  to  pay  the  interest  as  it 
falls  due.  As  to  the  principal,  it  is  made 
the  duty  of  the  proper  officers  to  levy  taxes 
to  pay  it  independently  of  any  vote  on  that 
subject ;  but  this  cannot  be  done  until  after 
the  year  1880.  Fremont  Bldg.  Assoc,  v. 
S/ierwin,  6  AVi5.  48.  —  Distinguished  in 
Cook  V.  Beatrice,  32  Neb.  80. 

A  railway  charter  provided  for  calling  an 
election  to  determine  whether  a  subscription 
should  be  made  to  a  railroad  company, 
and  a  tax  levied,  and  the  notice  to  be  given 
of  such  election,  and  in  a  subsequent  sec- 
tion empowered  the  several  towns,  etc., 
through  or  near  which  the  road  should  be 
located  to  "  make  donations  and  to  issue 
bonds  for  the  same  in  the  manner"  therein- 


before provided  for  to  such  railroad  for  the 
construction  of  the  same.  Held,  that  as  to 
donations  the  failure  to  submit  a  formal 
proposition  to  the  electors  for  authorizing 
the  levy  of  a  tax  would  not  render  the 
bonds  issued  under  the  election  void,  and 
that  the  people  in  voting  the  donation  of 
bonds  impliedly  voted  for  the  levy  of  the 
requisite  tax  to  pay  them.  Prairie  v.  Lloyd, 
2,Am.  &*  Eng.  K.  Cas.  58,  97  ///.  179. 

151).  Contesting:  election.  —  While 
the  Indiana  law  for  contesting  elections  is 
not  applicable  to  elections  held  for  the  pur- 
pose of  voting  aid  for  the  construction  of  a 
railroad,  yet  the  board  of  county  commis- 
sioners has  the  right  to  go  behind  tlie  can- 
vass of  the  vote  and  inquire  into  the  truth 
of  the  return  made  by  the  canvassers ;  and 
any  individual  interested  may  appear  before 
the  board  and  contest  the  result  of  the 
election,  and  if  aggrieved  at  their  decision 
may  appeal  to  the  circuit  court,  and  in  this 
way  the  validity  of  the  result  of  such  elec- 
tion, as  to  the  legality  of  the  votes  cast, 
may  be  contested,  but  not  by  a  suit  to  en- 
join the  collection  of  the  tax  levied  in  pur- 
suance thereof.  Goddard  v.  Stockman,  5 
Am.  &*  Eng.  A'.  Cas.  164,  74  /nd.  400. 

In  a  proceeding  brought  by  an  elector 
under  Kan.  Laws  1871,  ch.  79,  to  contest  an 
election  held  for  the  purpose  of  voting  the 
bonds  of  a  county  to  aid  in  tht  construction 
of  a  railroad,  and  to  be  issued  in  payment 
for  the  stock  of  the  railroad  company,  the 
plaintiff  must  conform  strictly  to  the  pro- 
visions of  that  statute,  and  cannot  bring 
any  one  as  a  defendant,  or  proceed  against 
any  person,  other  than  the  officers  named 
in  the  statute ;  nor  can  any  matter  be  liti- 
gated in  such  special  proceeding  except 
the  mere  question  o^  the  validity  of  such 
election.  Chicago,  K.  6«'  W.  R.  Co.  v. 
Evans,  41  Kan.  94,  21  Pac.  Rep.  216.  — FOL- 
LOWKU  IN  Watts  r/.  Wichita  County  Com'rs, 
41  Kan.  402,  22  Pac.  Rep.  313. 

A  county  court  has  no  jurisdiction  of  a 
contest  of  an  election  held  within  a  city  of 
the  county  on  the  question  of  voting  aid 
to  a  work  of  internal  improvement.  Fox- 
worthy  v.  Lincoln  6f  F.  R.  Co.,  13  X^-b.  398, 
14  A'.   W.  Pep.  394. 

In  any  case  where  the  question  of  the  ob- 
ligation of  a  contract  of  subscription  is  to 
be  settled  because  of  the  want  of  authority 
on  the  part  of  the  county  to  make  it,  for 
want  of  proper  assent  on  the  part  of  the 
people  of  the  county,  the  question  of  the 


^p-i'llW) 


MUNICIPAL  AND   LOCAL  AID,  160,  161. 


605 


result  of  what  is,  by  accommodation  in  the 
use  of  terms,  called  an  election  must  neces- 
sarily be  investigated,  not  under  the  idea 
of  contestinjj  an  election,  but  for  the  pur- 
))0.ie  of  ascertaining  whether  the  contract 
of  subscription  made  has  been  authorized 
according  to  law,  and  so  binding  on  the 
county.  Winston  V.  Tennessee  &^  P.  A'.  Co., 
I  littxt.  (  Tenn.)  6o. 

160.  Iliinlcii  of  proof.— The  burden 
of  proof  rests  upon  parties  claiming  the 
right  to  issue  municipal  bonds  in  aid  of  rail- 
roads or  other  private  corporations,  or  to 
comptl  the  issuing  of  such  bonds,  or  assert- 
ing the  validity  of  such  bonds  issued  'or 
such  purposes  since  the  adoption  of  tlie 
present  constitution,  to  show  affirmatively 
thai  they  were  authorized  by  a  vote  of  the 
municipality,  under  then  existing  laws,  prior 
to  the  adoption  of  the  constitution.  People 
ex  rel.  v.  Bishop,  in  ///.  124.— Distin- 
guishing Louisville  v.  Portsmouth  Sav. 
Bank,  104  U.  S.  ^6g.— People  ex  rel.  v.  Jack- 
son County  Sup'rs,  92  ///.  441. 

And  where,  in  such  proceeding,  it  appears 
that  the  county  court,  at  a  time  subsequent 
to  the  adoption  of  the  new  constitution,  en- 
tered an  order  reciting  that  the  election 
previously  held  was  duly  held  in  pursuance 
of  law,  and  directing  the  subscription  to  be 
made,  such  finding  in  respect  to  the  alleged 
validity  of  the  election  could  not  operate  to 
estop  the  county  from  denying  that  the 
election  was  properly  held,  or  relieve  the 
party  claiming  the  benefit  of  the  subscrip- 
tion from  the  burden  of  showing  it  was  so 
held.  People  ex  rel.  v.  Jackson  County 
Sup'rs,  92  ///.  441. 

The  record  of  the  county  board  relating 
to  the  issue  of  county  bonds  to  a  railway 
company  contained  no  recital  or  finding 
showing  the  giving  of  notice  of  the  elec- 
tion to  vote  on  the  proposition  of  a  cor- 
porate subscription,  and  the  county  clerk, 
the  custodian  of  rhe  records  of  the  county 
court,  testified  that  he  had  made  diligent 
and  thorough  search  of  the  records  and 
files  of  his  office,  and  was  unable  to  find 
any  paper  or  record  indicating  that  any  no- 
tice of  such  election  was  ever  given.  Held, 
that,  as  the  burden  of  proof  of  the  giving 
of  notice  of  the  election  was  upon  the 
party  asserting  the  validity  of  the  bonds, 
such  issue  should  have  been  found  against 
him.  Choisser  v.  People  ex  rel.,  140///.  21, 
9  N.  E.  Rep.  546. 

In  a  suit  on  a  town  bond  issued  in  aid  of 


a  railroad,  it  devolves  upon  the  plaintiff  to 
show  with  reasonable  certainty  that  author- 
ity to  issue  the  bonds  has  been  conferred  by 
a  legal  election  ;  that  the  vote  has  been 
properly  preserved,  and  lias  been  canvassed 
by  the  proper  persons  authorized  to  decide 
whether  the  vote  is  favorable  to  a  subscrip- 
tion or  not.  Carpenter  v.  Lathrop,  51  Mo. 
483. 

161.  Designation  of  oonipany  to 
be  aided. — It  is  essential  to  the  validity 
of  proceedings  under  the  Kan.  law  of  1865 
that  some  corporation  be  named  as  the  re- 
cipient of  the  proposed  subscription  and 
bonds,  and  a  vote  to  aid  in  the  construction 
of  a  railroad  along  a  certain  route  gives  no 
authority  to  the  commissioners  to  subscribe 
stock  or  issue  bonds  to  any  corporation. 
Missouri  River,  Ft.  S.  &•  G.  R.  Co.  v. 
Miami  County  Coni'rs,  12  Kan.  230. — Fol- 
lowing Lewis  V.  Bourbon  County  Com'rs, 
12  Kan.  186.— Distinguished  in  Johnson 
County  Com'rs  v.  Thayer,  94  U.  S.  631. 

As  there  was  nothing  in  an  order  of  the 
county  court,  or  in  the  notice  for  an  elec- 
tion, or  even  in  the  election,  that  author- 
ized a  subscription  of  stock  to  either  the 
Lexington  or  Knoxville  R.  Co.,  or  to  tlie 
Kiioxville  &  Kentucky  R.  Co.,  the  action  of 
the  county  court  and  tlie  election  held  in 
pursuance  thereof,  and  subsequent  order  of 
the  county  court  directing  the  chairman  10 
issue  bonds  to  the  Knoxville  &  Kentucky 
R.  Co.,  were  unauthorized  by  the  act  of 
1851-52.  Campbell  County  Justices  v.  Knox- 
ville &-  K.  R.  Co.,  6  Coldw.  (Tenn.)  598. 

A  proposition  submitted  to  the  voters  of 
a  county  in  Nebraska  in  which  it  is  pro- 
posed to  vote  the  bonds  of  such'  county  to 
a  railroad  company  must  designate  the 
donee.  A  proposition  in  the  alternative  to 
issue  to  a  certain  corporation  named  or  to 
another  designated  corporation  is  ineffec- 
tual to  authorize  the  issuing  of  bonds,  even 
if  adopted  by  the  legal  voters.  State  ex  rel. 
v.  Roggen,  22  Neb.  i  .8,  34  N.  IV.  Rep.  108. — 
Following  Jones  w.  Hurlburt,  13  Neb.  125  ; 
Spurck  V.  Lincoln  &  N.  W.  R.  Co.,  14  Neb. 

293- 

A  vote  in  favor  of  a  subscription  by  a 
county  to  railroad  stock  is  not  vitiated  by 
being  in  the  alternative,  that  is,  voting  upon 
a  proposition  to  subscribe  a  certain  amount 
to  one  company  on  condition  that  it  sub- 
mit to  certain  requirements  as  to  the  loca- 
tion of  the  road  and  the  time  of  completing 
it,  and,  if  not,  then  to  make  the  subscrip- 


I 


f. 


11 


606 


MUNICIPAL  AND   LOCAL  AID,  103-105. 


i  • 


tion  to  another  company.  Louisville  &* 
.V.  A'.  Co.  V.  Davidson  County  Court,  i 
Snccd  (Tenn.)  637.  — Kevik.wkd  in  Winston 
'.'.  Tennessee  «&  P.  K.  Co.,  i  B.i.xt.  (Tenn.) 
60  ;  Louisville  &  N.  R.  Co.  v.  State,  8  Heisk. 
(Tenn.)  663 ;  Humphreys  County  v.  McAdoo, 
7  Heist:.  585. 

Wliere  the  law  under  wliich  a  vote  was 
taken   on   the  question   of  corporate  sub- 
scription   did  not  require  the   same  to  be 
taken  in  reference  to  any  paaicui 
but  to  any  railroad  leading  to  u.  f         '... 
town,  a  vote  for  railroad  subscript!    !■       .' 
out    designating  any   particular  road   was 
held  to  authorize  a  corporate  sii>,^rintion 
to  a  road  which  passed  through  the  tov  ■ 
Decker  v.  Hughes,  68  ///.  33. 

Where  a  town  was  authorized  to  vote  a 
subscription  to  any  company  whose  road 
should  lead  to  or  from  it,  a  vote  was  had  on 
the  question  for  or  against  railroad  appro- 
priation in  a  certain  amount,  which  carried, 
and  under  which  the  corporate  authorities 
subscribed  the  sum  named  to  the  stock  of  a 
railway.  Held,  that,  although  the  scope  of 
the  vote  was  larger  than  was  warranted  as 
justifying  a  donation,  yet,  as  the  sum  voted 
was  appropriated  as  a  subscription  to  stock, 
it  would  be  sustained.  Decker  v.  Hughes, 
68  ///.  33. 

A  vote  of  bonds  to  the  "  Mattoon,  Sulli- 
van &  Decatur  R.  Co."  when  the  true  name 
was  the  "  Decatur,  Sullivan  &  Mattoon  R. 
Co."  will  not  invalidate  the  bonds  or  the 
election  when  there  is  no  doubt  about  the 
road  that  was  intended.  Moultrie  County  v. 
Fairfield,  7  Am.  <&*  Ettg.  R.  Cas.  194,  105  U. 
S.  370. 

102.  Suits  to  enjoin  holding  of 
elections. — Where  a  municipality  has  le- 
gally a  right  to  pass  a  by-law  granting  a  sum 
of  money  as  a  bonus  to  a  railway,  it  would 
seem  premature  to  apply  to  restrain  the  by- 
law being  submitted  to  the  ratepayers,  as 
they  might  refuse  to  approve  the  by-law. 
Vickers  v.  Shuniah,  22  Grant's  Ch.  (U.  C.) 
410.— Distinguishing  Helmt/.  Port  Hope, 
22  Grant's  Ch.  (U.  C.)  273. 

Where  the  corporation  of  the  town  of 
Port  Hope  was  about  submitting  to  the 
vote  of  the  ratepayers  a  by-law  authorizing 
the  harbor  commissioners  of  that  town  to 
issue  debentures  to  the  amount  of  $75,000 
to  aid  in  completing  a  railway,  but  which 
debentures  the  corporation  had  not  legally 
the  power  of  directing  to  be  issued,  the 
court  restrained  the  corporation  from  pro- 


ceeding to  take  such  vote.     Hehn  v.  PtV"/ 
Hope,  22  Grant's  Ch.  (U.  C)  273. 

103.  PnrticH  to  .suit  to  eiijoin  pro- 
cccdiiiifH. — The  railroad  company  is  not 
a  necessary  party  defendant  in  an  action 
brought  by  a  municipal  township  against 
the  board  of  county  commissioners  and  the 
county  clerk  to  perpetually  enjoin  them  as 
agents  of  the  township  from  subscribing  to 
the  capital  stock  of  the  railroad  company, 
and  executing  bonds  of  the  township  in 
payment  therefor,  under  the  pretended  au- 
thority of  a  special  election  held  to  take  the 
sense  of  the  electors  of  the  township  upon 
the  subscription  of  stock  and  the  issuing  of 
b-  where  the  petition  alleges  tiiat  the 
cond'tions  precedent  to  the  power  of  the 
county  b(jard  to  call  the  election  and  make 
any  subscription  were  not  complied  with. 
Dixon  Tp.  V.  Sumner  County  Com'rs,  25 
Kan.  519.— Reconciling  State  v.  Ander- 
son, 5  Kan.  90. 

104.  Who  may  question  rcg:uhir- 
ity  of  election.— Under  the  III.  Act  of 
1859  incorporating  the  Western  Air-Line 
railroad,  if  a  municipal  vote  be  in  favor  of 
a  subscription  to  the  stock  of  said  road,  a 
supervisor,  acting  only  as  a  ministerial  offi- 
cer in  issuing  the  bonds,  canno'  question 
the  regularity  of  the  election.  Piatt  v. 
People  ex  rel.,  29  ///.  54. 

The  town  clerk  has  duties  only  of  a  min- 
isterial character,  and  it  seems  that  when 
the  supervisor,  under  an  election,  makes  a 
subscription  to  a  railroad,  and  executes  the 
bonds  of  the  town  in  pursuance  thereof, 
the  town  clerk  has  no  authority  to  question 
the  legality  of  the  act  or  refuse  to  counter- 
sign them  and  make  a  record  thereof,  it  not 
being  his  duty  to  defend  the  interests  of  his 
town.  People  ex  rel.  v.  Cline,  63  ///.  394,  7 
Am.  Ry.  Rep.  373. 

105.  Estoppel.— Where  the  people  of 
a  county  vote  in  favor  of  a  subscription  to 
the  stock  of  any  company  that  would  build 
a  railroad  between  designated  points,  and 
the  proper  authorities  declare  the  vote  to 
be  in  favor  of  the  subscription,  and  so  enter 
it  of  record,  and  the  bonds  are  issued,  the 
county  is  estopped,  after  the  road  is  built, 
from  asserting  that  in  fact  a  majority  did 
not  vote  in  favor  of  the  subscription.  Block 
V.  Bourbon  County  Com'rs,  99  U.  S.  686. 

The  taxpayers  of  a  county  voted  to  fund 
its  bonds  issued  to  a  railroad  under  a  stat- 
ute authorizing  municipal  corporations  to 
fund  their  bonds,  "  which  are  now  binding 


MUNICIPAL  AND   LOCAL  AID,  166,  167. 


607 


or  subsisting  lepal  obligations."  Held,  that 
tlie  vote  recognized  the  old  bonds  as  valid, 
and  that  the  county  was  estopped  from 
setting  up,  in  a  sui .  on  the  new  bonds,  an 
irregularity  in  issuing  the  old  ones.  Jasper 
County  V.  Ballon,  3  Am,  &*Eng.  R.  Las.  47, 
103  cr.  S.  745. 

Where  a  ta.\  of  five  per  cent,  to  aid  in  the 
construction  of  a  railroad  was  voted  by 
a  majority  of  all  the  electors  in  a  town- 
ship, and  the  railroad  company  thereupon 
constructed  the  road  through  the  township 
at  an  expense  of  more  than  double  the 
amount  of  the  tax,  the  citizens  making  no 
objection  to  tlie  legality  of  the  vote  until 
after  the  completion  of  the  road — /uM,  that 
tlie  taxpayers  were  estopped  from  then 
objecting  to  the  validity  of  the  notice  of 
election.  (Beck,  J„  dissenting.)  Burling- 
ton, C.  R.  (S-  M.  R.  Co.  V.  Stewart,  39  Iowa 
267,  20  Am.  Ry.  Rep.  89. — Followed  in 
Lamb  v.  Burlington,  C.  R.  &  M.  R.  Co.,  39 
Iowa  333. 

A  canvass  of  the  votes  of  a  county  showed 
a  majority  in  favor  of  subscription  to  a 
railroad,  and  on  the  faith  of  the  vote  the 
company  constructed  its  road.  Held,  that 
the  county  was  not  estopped  from  setting  up 
the  illegality  of  the  vote  by  not  asserting 
the  illegality  before  the  road  was  built, 
where  tlie  company  knew  of  the  illegality. 
People  ex  rel.  v.  Logan  County  Sup'rs,  63 
///.  374.  People  ex  rel.  v.  Cline,  63  ///.  394, 
7  Am.  Ry.  Rep.  373. 

Where  an  election  to  subscribe  to  the 
stock  of  a  railroad  is  illegal  and  void,  be- 
cause not  conducted  by  the  proper  officers, 
and  the  supervisor,  after  such  election, 
makes  the  subscription,  after  the  building  of 
the  road,  the  town  is  not  estopped  from 
denying  the  validity  of  the  same.  People 
ex  rel.  v.  Santa  Anna,  67  ///.  57. — Fol- 
lowed IN  People  ex  rel.  v.  Laenna,  67  III. 
65. 

The  fact  that  after  such  an  election  the 
county,  township,  or  other  municipal  organ- 
ization in  which  the  election  was  held  ap- 
pointed an  agent,  who  made  a  subscription 
of  stock  on  behalf  of  his  principal,  that  the 
organization  acted  and  was  recognized  as 
a  stockholder  in  the  corporation  in  aid  of 
which  the  bonds  were  to  be  issued,  and 
that  the  latter  made  contracts  with  third 
parties,  relying  upon  the  validity  of  the 
transaction,  will  not  operate  as  an  estoppel, 
such  acts  being  ultra  vires.  Lynchburg  &* 
D.  R.  Co.  V.  Person  County  Com'rs,  109  N. 


Car.  159,  13  S.  E.  Rep.  783.— DISTINGUISH- 
ING Jones  V.  Person  County  Com'rs,  107  N. 
Car.  248. 

166.  Power  grniited  in  cliartcr  of 
one  ooniimny  doe^  not  nutliorize  nicl 
to  anotlier.— An  act  for  the  incorporation 
of  a  company  authorized  counties  to  vote 
on  the  question  of  their  subscription  to  the 
company.  Held,  that  such  act  did  not  au- 
thorize the  county  court  to  submit  a  propo- 
sition for  voting  a  subscription  to  "  any  " 
railroad  company  which  would  build  an- 
other road  within  five  years  between  certain 
points  named.  Williams  v.  People  ex  rel., 
132  ///.  574,  24  A'.  E.  Rep.  647. 

167.  Acts  limiting'  amount  of  sub- 
scription.—Under  Ind.  statutes  townships 
are  not  authorized  to  raise  by  taxation  for, 
or  to  appropriate  to,  railroad  purposes  to 
exceed  two  per  cent,  on  the  taxables  of  the 
township  in  any  one  period  of  two  years. 
Upon  a  proper  petition  of  freeholders  of 
the  township  the  proper  county  board  must 
order  an  election  to  be  held  in  the  town- 
ship without  regard  to  the  number  of  such 
elections  previously  held  unless  it  appears 
that  the  township,  within  the  period  of  two 
years,  has  raised  by  taxation  for,  or  appro- 
priated to,  railroad  purposes  a  sum  or  sums 
in  excess  of  two  per  cent,  on  the  taxables  of 
the  township,     Bis/t  v.  Stout,  77  Ind.  255. 

Chapter  90,  Kan.  Laws  of  1870,  does  not 
control  or  limit  the  amount  of  bonds  to  be 
voted  for  under  elections  granted  in  accord- 
ance with  the  provisions  of  chapter  107, 
Laws  of  1876,  and  the  amendments  thereto. 
State  ex  rel,  v.  Rush  County  Com'rs,  35  Kan. 
150,  10  Pac.  Rep.  535. 

Me.  Rev.  St.  ch.  51,  §  80,  authorizes 
any  town  to  grant  aid  to  a  railroad  not  to 
exceed  five  per  cent,  of  its  valuation.  By 
a  special  statute  of  1868,  ch.  622,  §  i,  de- 
fendant town  was  authorized  to  raise  not 
to  exceed  $100,000  to  aid  a  certain  railroad. 
Held,  that  each  statute  was  separate  and 
independent,  and  authorized  the  sums 
therein  named.  Sterens  v.  Anson,  73  Me. 
489.— Following  Portland  &  O.  R.  Co.  v. 
Standish,  65  Me.  66. 

As  the  law  stands  in  Nebraska  there  is 
no  warrant  for  creating  a  county  indebted- 
ness in  aid  of  internal  improvements  ex- 
ceeding in  the  aggregate  ten  per  cent,  of 
the  assessed  value  of  the  taxable  property 
within  the  county.  And  even  this  must 
have  been  authorized  by  at  least  two  thirds 
of  all  the  votes  cast  on  the  proposition  to 


r  It 


I 
i 


608 


MUNICIPAL  AND   LOCAL   AID,  168,  169. 


HI 


extend  such  aid.  Reineman  v.  Cori/ijf/iw, 
C.  iT-  /A  //.  A'.  Co.,  7  X,-/>.  310.— Approved 
IN  Dixon  County  v.  Field,  iii  U.  S.  83. 
Distinguished  in  State  ex  rel.  v.  Bab- 
cock,  19  Neb.  230.  Reviewed  in  State  ex 
rel.  7K  Wilkinson,  20  Neb.  610. 

Where  a  county  votes  aid  to  a  railroad 
company  in  excess  of  the  amount  authorized 
l>v  1 IV,  it  is  simply  a  void  act,  conferring  no 
Mi  ity  on  the  county  commissioners  to 
issue  the  bonds  of  the  county  in  any 
amount  whatever.  ,Reineman  v.  Covington, 
C.  &•  R.  H.  R.  Co.,  7  .Xeb.  310. 

1«8.  Trifliii);  Irregularities.— Mere 
informalities  in  the  returns  of  an  election 
voting  aid  to  a  railroad  which  cannot  pos- 
sibly prejudice  any  substantial  right,  or  a 
failure  to  conform  to  any  requirement  of 
the  statute  which  is  directory  only,  or  an 
error  which  is  clearly  clerical,  are  not  suf- 
ficient to  defeat  the  appropriation  voted. 
Irwin  V.  Lowe,  89  Ind.  540. 

So  field  of  a  failure  to  close  an  election 
at  five  o'clock  in  the  evening,  as  the  statute 
directs,  unless  it  is  made  to  appear  that  votes 
were  cast  after  that  time  which  would 
change  the  result.  Piatt  v.  People  ex  rel.,  29 
///.  54. 

And  of  an  agreement  between  voters  to 
"  pair  "  where  the  parties  on  one  side  vio- 
late the  agreement  and  vote.  Such  agree- 
ment is  illegal.     Piatt  v.  People  ex  rel.,  29 

///.  54. 

Where  the  construction  of  a  railroad  is 
secured  by  a  pledge  made  at  the  ballot  box 
by  the  legal  voters  of  a  town  to  deliver  to 
the  company  the  bonds  of  the  town  when 
tiie  road  is  so  constructed,  the  bonds  should 
be  delivered  unless  the  law  was  In  a  sub- 
stantial manner  disregarded  in  the  election. 
Chicago,  D.  <S-»  V.  R.  Co.  v.  Coyer,  79  ///.  373. 

At  a  meeting  attended  by  a  majority  of 
ihe  legal  voters  of  a  town  the  question  of 
calling  an  election  for  the  purpose  of  voting 
aid  to  a  railroad,  the  names  of  freeholders 
who  were  willing  to  sign  a  petition  for  such 
im  election  were  called  for  and  publicly  an- 
nounced, and  a  committee  appointed  to  pre- 
pare the  petition.  The  committee  prepared 
the  petition,  and  signed  the  names  of  the 
freeholders  whose  names  had  been  so  an- 
nounced. Held,  that,  such  freeholders  hav- 
ing made  no  objection,  their  silence  must 
be  construed  as  an  express  assent  that  their 
names  should  be  signed  by  the  committee. 
Chicago,  D.  &*  V.  R.  Co.  v.  Coyer,  79  ///,  373, 

A  town  election  to  vote  aid  to  a  railroad 


in  111.  under  the  act  of  March  30,  1869,  §  6, 
providing  that  it  "be  held  and  conducted, 
and  return  thereof  made,  as  is  provided  by 
law,"  which  is  presided  over  by  a  moderator, 
and  not  by  judges  of  election,  is  a  sufficient 
compliance  with  the  law,  that  being  the 
method  of  electing  town  officers.  Oregon 
V.  Jennings,  1 1 9  d/.  .S'.  74,  7  .Sup.  Ct.  Rep.  1 24. 

It  was  objected  that  an  election  was  il- 
legal, for  the  reason  that  the  judges  of  the 
election  were  not  present  in  holding  it  in 
two  townships.  Other  persons  acted  as 
judges,  but  it  was  not  shown  that  any  essen- 
tial requirement  of  the  statute  was  omitted 
in  their  selection  and  qualification.  Hclif, 
that  the  objection  was  without  force ;  tliat, 
as  the  statute  authorized  the  electors  pres- 
ent, in  case  the  judges  failed  to  attend,  to 
select  others  in  their  place,  it  would  be  pre- 
sumed that  the  acting  judges  were  legally 
selected  until  shown  that  they  were  intruders 
acting  without  color  of  office,  and  even  were 
this  shown  it  seems  very  doubtful  whether  it 
could  be  allowed  to  disfranchise  the  voters 
of  the  townships.  People  ex  rel.  v.  Logan 
County  Sup'rs,  63  ///.  374. 

An  election  was  held  in  four  townships  in 
a  certain  county  on  the  same  day  on  the 
subject  of  each  township  making  an  appro- 
priation to  aid  a  railroad,  and  the  inspect- 
ors of  the  several  townships  organized  them- 
selves into  a  board  of  canvassers.  One  of 
the  townships  had  only  one  voting  precinct, 
and  under  the  revised  statutes  of  the  state 
the  inspector  and  judges  thereof,  or  any 
two  of  them,  should  constitute  the  board  of 
canvassers ;  but  the  inspectors  of  each  town- 
ship met  jointly  with  the  county  auditor 
and  canvassed  the  vote  of  each  township. 
Held:  (i)  that  neither  the  election  nor  the 
tax  voted  was  invalidated  by  such  irregular 
canvass ;  (2)  that  the  fact  that  the  inspect- 
ors of  the  other  elections  aided  in  canvass- 
ing the  vote  of  the  township  where  there 
was  only  one  voting  precinct  did  not  invali- 
date the  canvass,  but  it  stood  as  if  made  by 
the  proper  inspector,  aided  by  the  county 
auditor  as  his  clerk.  (Biddle,  J.,  dissenting.) 
Mustard  v.  Hoppess,  69  Ind.  324. 

169.  Election  witliuut  authority 
of  law  is  a  nullity. — A  popular  vote  in 
favor  of  a  municipal  subscription  cast  at  an 
election  held  without  authority  of  law  dr.? ; 
not  bind  the  municipality  nor  confer  the 
power  to  make  the  subscription.  Allen  v. 
Louisiana,  2  Am.  <&*  Eng.  R.  Cas.  599,  103 
(/.  S.  80.     Barnes  v.  Lacon,  84  ///.  461. 


MUNICIPAL  AND   LOCAL  AID,  170-172. 


609 


And  the  legislature  cannot  by  any  subse- 
quent act  legalize  the  same.  Barnes  v. 
Lac.^n,  84  ///.  461. 

The  charter  of  a  railroad  authorized  mu- 
nicipalities to  subscribe  to  its  capital  stock, 
and  a  vote  was  taken  to  subscribe  to  a  cer- 
tain division  of  the  road.  Held,  that  the 
vote  was  unauthorized,  and  the  company 
could  not  compel  the  subscription.  Me- 
IV/tor/i-r  v.  People  ex  rel. ,  65  ///.  290. 

By  tiie  charter  of  the  Dixon,  P.  <St  H.  R. 
Co.  of  March  $,  1867,  each  town  and  town- 
ship through  which  the  road  might  be  lo- 
cated was  authorized  to  subscribe  and  take 
stock  of  the  company  not  exceeding  §35,000, 
upon  a  vote  of  the  people  in  favor  of  the 
same.  Under  this  law  an  election  was  held 
in  the  township  of  Elmwood  upon  two 
propositions  for  subscription,  the  first  for 
§35,000,  and  the  other  for  $40,000  additional 
to  the  first,  both  of  which  were  carried  and 
the  bonds  of  the  township  issued.  Held,  on 
bill  to  enjoin  the  collection  of  taxes  to  pay 
the  interest  of  the  bonds,  that  the  subscrip- 
tion of  §35,000  was  valid,  t)ut  as  to  the  $40,- 
000  the  election  and  subscription  were  void. 
Wiley  V.  Si'llt'man,  62  III.  170,— FOLLOWING 
Marshall  v.  Silliman,  61  111.  218. 

A  city  \yas  authorized  to  subscribe  to  the 
capital  stock  of  h  railway  company,  upon  an 
aflirmaiive  vote  of  the  people,  to  be  paid 
for  in  corporate  bonds  to  run  not  exceeding 
ten  years,  and  to  bear  not  exceeding  ten 
per  cent,  interest.  Held,  that  a  proposal  sub- 
mitted and  voted  that  the  bonds  to  be  is- 
sued should  be  made  payable  in  not  less 
than  twenty  years,  and  bear  interest  at  the 
rate  of  eight  per  cent,  per  annum,  was  ma- 
terially variant  from  that  authorized  by  law 
in  respect  to  the  time  they  had  to  run  be- 
fore due ;  and  that  the  submission  was  in 
excess  of  the  power  conferred,  and  the  vote 
thereon  without  any  binding  authority ;  and 
that  the  issue  of  the  bonds  voted  could  not 
be  coerced.  Cat'ro&^Sl.  L.  R.  Co.  v.  Spar  la, 

77  III-  505. 

170.   Statute  of  limitatioiiH.  —  An 

action  was  commenced  by  certain  taxpayers 
in  behalf  of  themselves  and  others,  among 
other  purposes,  to  declare  void  an  election 
held  to  allow  certain  townships  to  subscribe 
stock  to  a  railroad  company,  on  account  of 
irregularities.  Held:  (i)  the  action  could  be 
brought,  being  equitable  in  its  nature,  even 
though  no  remedy  was  given  by  statute  ;  (2) 
while  no  statute  of  limitations  is  applicable, 
still  such  action  should  be  brought  within 
6  D.  R.  D.— 39 


reasonable  time,  and  before  the  rights  of  in- 
nocent third  parties  have  intervened,  lones 
v.  Person  County  Com'rs,  107  A'.  Car.  24S, 
12  S.E.  Rep.  69.— DiSTiNGUisfiED  IN  Lynch- 
burg &  D.  R.  Co.  V.  Person  County  Com'rs, 
109  N.  Car.  159. 

171.  Who  aiitlioriztMl  to  siil>.sorilio 
and  isHiic  boiulM.— After  the  voters  of  a 
town  in  Illinois  have,  at  an  election  held  pur- 
suant to  law,  voted  in  favor  of  a  donation  to 
aid  in  the  construction  of  a  railroad,  tiie  su- 
pervisor and  clerk  are  the  proper  authori- 
ties to  subscribe  for  the  stock  and  issue  the 
bonds  of  the  township  therefor.  Walnut 
V.  Wade,  3  A/n.  &^  Kitt^.  R.  Cas.  36,  103  U, 
S.  683. 

Where  a  county  court  is  authorized  by 
legislative  act  to  subscribe  to  the  stock  of  a 
railroad  and  issue  bonds  in  payment  there- 
for when  the  people  of  the  county  shall 
vote  in  favor  of  siicli  subscription,  when  the 
election  has  been  duly  held  and  the  result 
entered  upon  the  minutes  of  the  court,  its 
authority  to  make  the  subscription  is  com- 
plete without  any  further  entry  or  order  of 
the  court  that  it  will  make  the  subscription. 
Floyd  County  Com'rs  v.  Shorter,  50  Ga.  489. 

A  county  judge  who  has  si^jned  a  petition 
as  a  taxpayer  asking  for  the  issuing  of  town 
bonds  is  not  thereby  disqualified  for  count- 
ing the  votes  and  ascertaining  whether  a 
majority,  in  numher  and  amount  of  taxable 
property  represented,  has  been  given  for  the 
bonding  of  the  town  or  not.  If  such  ma- 
jority has  been  given,  the  county  judge  has 
no  power  in  the  premises  except  to  obey  the 
statute,  which  makes  it  his  duty  in  such 
case  to  appoint  three  commissioners  to  is- 
sue the  bonds.  ^People  ex  rel.  v.  Hulbert, 
59  Rarb.  (N.   Y.)  446. 

172.  Special  laws  not  repealed  h.v 
subsequent  {general  laws.— A  provision 
in  the  charter  of  a  railroad  company  author- 
izing county  courts  to  subscribe  stock  id 
such  railroad  without  a  vote  of  the  people 
is  not  repealed  by  subsequent  general  laws, 
nor  by  the  subsequent  adoption  of  the  pres- 
ent constitution.  State  ex  rel.  v.  Greene 
County,  54  Mo.  540.— Following  Smith  v. 
Clark  County, S4M0. 58.— Followed  iNRay 
County  V.  Vansycle,  96  U.  S.  675;  Thomas 
V.  Scotland  County,  3  Dill.  (U.  S.)  7. 

The  power  conceded  to  counties  or  other 
municipal  bodies  by  a  railroad  charter  to 
take  and  subscribe  stock  in  such  railroad 
was  intended  as  a  privilege  to  the  railroad. 
State  ex  rel.  v.  Greene  County,  54  Mo.  540.  — 


i 

s 


010 


MUNICIPAL   AND   LOCAL   AID,  173. 


Fill, LOWING  Smith  ?■.  Clark  Cmintv,  54  Mo. 

Section  14  of  tlie  North  Mo.  K.  charter 
i>(  1851  authorized  counties  .  loiij.-  the  line  of 
liie  road  to  subscribe  thereto  witiiout  the 
sittiction  of  a  popular  vote.  Section  10  of 
tlie  act  of  1857  creating  the  Alexandria  & 
Hloonitield  K.Co.  (Sess.  Acts  1856-57,  p.  94) 
made  said  section  14  a  part  of  the  latter 
charter.  Hild :  ( 1 )  that  the  rij^ht  of  subscrip- 
tion conferred  by  section  14  was  not  exclu- 
sively that  of  tiie  counties,  but  was  a  privi- 
lege of  the  railroads,  and  might  be  trans- 
ferred by  section  10  aforesaid  t(j  the  A.  &  13. 
K.  Co.; '(2)  that  bonds  issued  in  1865  by 
the  county  court  of  Clark  county  in  aid  of 
the  A.  &  B.  R.  Co.,  under  the  authority  con- 
ferred by  the  charter  of  1857,  were  valid, 
notwithstanding  the  inhibition  of  the  act  of 
March  23,  1861  (Sess.  Acts  1861,  p.  To,  ji  i). 
The  last  named,  being  a  general  act,  did  not 
re[)eal  the  former  and  special  one.  Smith  v. 
Clark  County,  i\  Mo.  58.— Foli.owincj  Kan- 
sas City,  St.  J.  &  C.  13.  R.  Co.  V.  Alderman, 
47  Mo.  349  ;  State  ex  rel.  v.  Sullivan  County 
Court,  51  Mo.  522;  State  ex  rel.  v.  Macon 
County  Court,  41  Mo.  453.  — Appkovku  in 
Huidekoper  7'.  Dallas  County,  3  Dill.  (U. 
S.)  171.  Pom. OWED  in  Thomas t^  Scotland 
County,  3  Dill.  7 ;  State  ex  rel.  v.  Greene 
County,  54  Mo.  540 ;  Louisiana  v.  Taylor, 
105  U.  S.  454. 

VIII.  VALIDITT  AND  EFFECT  OF  THE  SUB- 
SCRIPTION. 

173.  In  Koeral.*— The  act  of  1859 
having  expressly  empowered  the  corporate 
authorities  of  Mobile  to  aid  in  the  construc- 
tion of  the  Mobile  &  Great  Northern  rail- 
road, by  virtue  of  the  vote  of  the  citizen? 
taken  under  the  act  of  1858,  the  failure  of 
said  corporate  authorities,  in  taking  the  vote 
of  the  citizens,  to  comply  with  the  terms  of 
the  said  act  of  1858  does  not  aflfect  the 
validity  of  their  contract  with  said  company. 
Gibbons  v.  Mobile  6-  G.  N.  R.  Co.,  36  Ala. 
410. 

Nor  is  the  validity  of  said  contract  affect- 
ed by  the  fact  that  the  aggregate  amount  of 
the  bonds  issued  by  said  corporate  authori- 
ties, with  the  interest  thereon  accruing  up 
to  the  time  when  they  respectively  fall  due, 

'Subscriptions  of  municipal  corporations  to 
stock  of  railroads,  in  K^ncrat,  see  notes,  59  Am. 
Dec.  782;  2  Am.  St.  Rep.  ioi;  5  L.  R.  A.  727. 


exceeds  one  million  of  dollars,  the  sum 
specified  in  said  acts  as  the  maximum  of  aid 
to  be  extended  to  said  railroad  company. 
Gibbons  v.  Mobile  &*  G.  N.  A'.  Co.,  36  Alu. 
410. 

Nor  is  the  validity  of  said  contract  at  all 
impaired  by  the  failure  to  require  stock  in 
said  railroad  comjjany  to  be  issued  to  the 
assignee  or  appointee  of  tlie  city  for  the  in- 
terest it  may  pay  on  said  bontls.  Gibbons  v. 
Mobile  (S^•  (7.  N.  A'.  Co.,  36  Ala.  410. 

If  the  city  received  more  favorable  terms 
as  to  time  of  payment  than  other  sub- 
scribers, it  does  not  lie  in  her  mouth,  in 
order  to  defeat  the  subscription,  to  say  that 
other  stockholders  were  thereby  defrauded. 
Evansville,  I.  &»  C.  S.  L.  R.  Co.  v.  Kvans- 
ville,  15  hul.  395.  — OvKRRULED  IN  Snyder 
V.  Studebaker,  19  Ind.  462. 

The  act  of  1865  (Ind.  Rev.  St.  1881)  was 
enacted  upon  the  theory  that,  where  a  rail- 
road company  hd  longer  owns  the  railroad, 
by  reason  of  a  judicial  sale,  as  provided  in 
that  act,  an  unpaid  subscripti(Jn  to  its  stock 
ought  not  to  be  coerced,  for  the  reason  that 
the  subscribers  cannot  acquire  an  interest 
in  the  railway  nor  have  a  voice  in  its  man- 
agement. Hamilton  County  Com'rs  v.  .State, 
36  Am.  &•  Enir.  R.  Cas.  210,  115  ///</.  64,  4 
A'.  E.  Rep.  589,  17  N.  E.  Rep.  855. 

Where  a  township  votes  bonds  in  aid  of 
a  railroad  to  be  built  between  designated 
j)oints,  and  th<!  statute  limits  the  amount  to 
$4000  per  mile  of  track  laid,  the  company  is 
entitled  to  bonds,  not  to  exceed  the  statu- 
tory limit  for  all  the  main  line  and  side 
tracks  built  which  are  necessary  for  the 
efficient  operation  of  the  railroad  between 
the  points  designated.  Atchison,  C.  &>  P.  R. 
Co.  v,  Phillips  County  Com'rs,  4  Am,  &*  Eng. 
R.  Cas.  326,  25  Kan.  261. 

A  proposition  by  a  railroad  company  that 
a  county  make  a  subscription  to  its  capital 
stock,  to  be  paid  by  conveying  to  the  com- 
pany all  the  lands  which  the  county  owned 
and  which  were  not  occupied  for' public 
purposes  when  the  proposition  should  be 
accepted,  and  by  transferring  all  the  tax 
certificates  which  the  county  then  owned 
and  which  should  come  to  its  possession  be- 
fore the  completion  of  the  road,  is  suffi- 
ciently definite  as  to  the  property  and  its 
value,  though  no  lands  or  tax  certificates 
are  specifically  described.  Hall  v.  Baker, 
74  Wis.  118,  42  N.  IV.  Rep.  104. 

A  by-law  to  take  stock  in  the  Bytown  & 
P.    R.   was  quashed  :     (i)  because  it  ap. 


^^^f) 


MUNICIPAL   AND   LOCAL   AID,   174,175. 


Gil 


pcared  not  to  have  been  concurred  in  by 
a  majority  of  the  assessed  inhabitants,  as 
required  by  13  &  14  Vict.  c.  132;  (2)  be- 
cause no  sufficient  rate  was  imposed  for  the 
piiyment  of  ttie  dei)t  and  interest,  as  re- 
quired by  12  Vict.  c.  81.  In  r,'  liilliin^s,  10 
U.  C.  (J.  li.  273. 

The  defendants  did  not  support  their  b^' 
law,  and  the  court  refused  to  liear  counsel 
on  behalf  of  the  railwjiy  company,  as  the 
rule  was  not  directed  to  them.     /;/  re  liill- 
///i;S.  10  U.  C.  (J.  li.  273. 

Under  the  cfiarter  of  a  railroad  company 
uliic.li  authorized  counties  to  subscribe  for 
si'.ck,  and  provided  that  the  company 
should  allow  to  all  holders  of  stock  "  in- 
terest on  tile  same  from  tiie  time  of  payinjj 
for  said  stock  up  to  thet  ime  of  makinj;  the 
first  dividend,  and  to  issue  to  the  holder 
stock  therefor,"  the  railroad  company,  by 
declaring  a  stock  dividend  of  one  fourth 
of  one  per  cent.,  did  not  acquire  the  right 
to  stop  the  running  of  interest  on  stock 
subscribed  and  held  by  a  county.  The 
"dividend"  intended  by  the  charter  was  a 
cash  dividend.  Hnrdin  County  \.  LoiiisvUL' 
«S-yV.  N.  Co..  g2  A>.  412,  17  .S".  I!'.  AV/.  860. 

VVarrants  issued  by  the  board  of  school 
commissioners  to  a  railroad  company  ap- 
plying for  a  loan  are  conclusive  that  it  has 
done  the  work  required  by  law,  and  is  free 
from  any  adverse  lien.  But  they  are  not 
conclusive  that  the  road  is  one  of  those  au- 
thorized by  law  to  apply  for  the  loan.  Hoiis- 
ton  Tap  &>  li.  R.  Co.  v.  Randolph,  24  Tex. 

3I7- 

A  railroad  company  executed  a  bond  and 
mortgage  to  a  city  which  had  issued  bonds 
in  aid  of  the  railroad,  and  the  mortgage 
conditioned  "that  the  company  would  pay 
the  interest  and  principal  of  all  said  bonds 
as  the  same  should  become  payable  and  ma- 
ture, and  would  save  and  hold  the  city  harm- 
less fron.  the  issue  of  the  same."  The  com- 
pany was  unable  to  keep  this  engagement, 
and  the  city  obtained  legislative  authority 
to  issue  new  bonds  for  the  balance  due  in 
renewal,  specially  providing  that  the  prior- 
ity and  security  of  the  lien  of  the  city 
should  not  be  thereby  impaired.  Held,  that 
the  city  was  not  bound  to  accept  payment 
offered  by  the  company  before  the  bonds 
were  mature,  and  when  the  rate  of  interest 
was  below  six  per  cent.;  neither  could  the 
company  apply  money  to  a  sinking  fund 
authorized  by  the  act  of  1868,  ch.  601,  such 
an  application  of  the  money  not  being  pro- 


vided for  by  the  act.     Portland  v.  Atlantic 
&-  St,  L.  R.  Co.,  74  ^'/f.  241. 

Where  an  act  authorizing  a  county  to 
subscribe  to  the  stock  of  a  railroad  pro- 
vided "that  the  net  profits  or  dividends 
upon  the  stock"  should  "  stantl  pledged  for 
the  payment  of  the  indebtedness  and  in- 
terest which  may  become  demandable  from 
the  county  under  this  act  "—held,  upon  suit 
brought  to  compel  payment  of  the  price  at 
wliicli  defendant  had  purchased  a  portion 
of  said  stock  from  the  cf)unty,  that  the  statu- 
tory pledge  of  the  profits  and  dividends  was 
intended  as  a  security  to  the  holders  of  the 
county  bonds  issued  in  payment  of  the  sub- 
scription ;  and,  in  the  absence  of  any  asser- 
tion by  them  of  rights  under  the  statutory 
pledge,  the  purchaser  could  not  invalidate 
his  contract  of  purchase  on  the  ground  that 
its  terms  impaired  the  obligations  of  tlie 
bondholders'  contract.  Knox  County  Com'rs 
V.  McCoinb,  19  Ohio  St.  320. 

174.  Wlieru  voiiipaiiy  l>ccoiiu>M  in- 
solvent.—Where  a  railway  to  whose  capital 
stock  a  county  had  made  an  absolute  and 
unconditional  subscription  had  its  franchise 
and  road  sold  under  a  deed  of  trust,  and 
abandoned  its  organization,  becoming  insol- 
vent, and  the  franchise,  by  act  of  the  legis- 
lature and  sale,  was  transferred  to  a  new 
company,  which  completed  the  xooA—hehi, 
that  the  county  had  no  power  to  donate  and 
deliver  a  portion  of  its  bonds  to  the  new 
company  as  against  creditors  of  the  old 
company,  and  that  such  could  not  be  done 
even  under  legislative  authoii),  as  they 
were  trust  funds  for  the  payment  of  debts 
A f origan  County  v.  Thomas,  76  ///.  1 20. 

175.  Failure  to  build  whole  of 
road. — The  people  of  a  certain  county  voted 
authority  to  the  board  of  supervisors  to 
issue  bonds  in  aid  of  a  railroad  to  a  certain 
amount  "  for  every  mile  of  track  that  shall 
be  actually  constructed."  A  proposition 
submitted  to  the  people  specified  the  ter- 
mini of  the  proposed  road  ;  but  it  was  only 
constructed  over  a  portion  of  the  distance 
between  the  points  named.  Held,  that  the 
board  was  authorized  to  issue  bonds  to  an 
amount  corresponding  to  the  completed 
portion  of  the  road,  and  they  were  valid. 
(Myrick,  McKee,  and  Thornton,  JJ.,  dissent- 
ing.)   Nevada   Bank  v.  Steinmitz,  64  Cal. 

301  • 

If  a  railway  company,  after  the  issue  of 
bonds  by  a.  town  in  payment  of  stock  sub- 
scribed, gives  its  obligation  that  if  it  does 


i 


C12 


MUNICIPAL   AND    LOCAL   AID,  176-170. 


not  complete  its  roari  by  a  yiven  time  it 
will  pay  the  town  tlie  sum  realized  by  sale 
of  tiie  boMfls,  witli  the  interest  thereon, 
iip(  n  tender  of  the  slock  issued  to  the  town, 
ih(  contract  will  be  ref^arded  as  one  for  the 
sa'e  and  purchase  of  the  slcjck,  anri  the 
siirretulfr  of  the  stock  will  be  a  sulTicicnt 
(-oiisideration  for  the  undertaking  of  the 
com|)any,  and  the  recitals  in  the  af^rccmcnt 
of  matters  of  inducement  will  form  no  part 
of  the  real  consideration.  Chicago,  P.  (Sf 
S.  H^.  A'.  Co.  V.  Marsi'iUes,  84  ///.  145,  16 
.  ////.  Ky.  Nip.  442. 

170.  Wlioii  iiiiiiiieiimlity  <>iititU>(l 
to  stock  v«rtili«'at('H.  —  A  county  is 
released  from  its  obligation  to  complete  the 
[lerformance  of  its  contract  by  an  adjudica- 
tion that  co\intif'S  are  not  authorized  to 
hcrome  subscribers  to  the  capital  stock  of 
railways,  but  it  does  not  thereby  become 
entitled  to  insist  that  the  company  should 
issue  to  it  certificates  of  stock  for  the 
anmiint  already  subscribed  in  contravention 
(jf  tin-  terms  of  the  subscription.  Wapello 
County  V.  Hnr  ling  ton  &*  M.  li.   A'.  Co.,  44 

l07VH    585. 

177.  Equitable  lien  of  iniiiiiciiml- 
ity.  The  equitable  lien  or  charge  in  favor 
of  a  county  which  has  loaned  its  bonds  to  a 
railroad  exists  and  is  enforcible  not  only 
against  the  funds  in  the  hands  of  the  re- 
ceiver of  the  aided  road,  but  against  the 
purchaser  under  the  decree  of  foreclosure 
theretofore  rendered,  and  against  whomso- 
ever may  hold  the  property  or  have  custody 
of  its  earnings.  Ketchum  v.  St.  Louis,  101 
U.  S.  306. 

Missouri  Act  of  January  7, 1865,  is  of  such 
character  that  all  purchasers  of  bonds  issued 
under  mortgages  subsequently  executed  and 
all  purchasers  of  the  propeity,  in  whatever 
mode,  were  bound  to  take  notice  of  its  provi- 
sions.    Ketchum  v.  ,SV.  Louis,  loi  U.  S.  306. 

178.  Governed  by  law  in  force 
when  HiiliHcription  In  made.— The  va- 
lidity of  a  municipal  subscription  to  railroad 
stock  is  determined  by  the  law  in  force 
when  it  is  actually  made,  and  not  by  a 
change  in  the  law  that  may  be  made  be- 
tween the  time  of  making  the  subscription 
and  a  formal  delivery  of  bonds.  Callaway 
County  V.  Foster,  93  U.  S.  567. — Followed 
IN  Howard  County  v.  Paddock,  1 10  U.S. 384. 

1 79.  Duties  of  agrents  or  coininis- 
Hioners  appointed  to  subscribe.— 
Where  commissioners  are  appointed  to  issue 
bonds  of  a  town,  and  are  charged  with  seeing 


that  the  proceeds  are  applied  to  the  con- 
struction of  the  road,  their  act  in  disposing 
of  the  bf)nds  is  sufricieiu  to  give  a  bona  fide 
purchaser  good  title  thereto ;  and  where 
such  commissioners  deliver  the  bonds  to 
contractors  in  payment  for  work  on  the 
road,  and  receive  credit  therefor  on  the 
town's  subscription,  they,  in  doing  so,  act 
within  their  authority,  Footc  \.  llaiuock, 
15  niatchf.  (U.  S.)  343. 

A  county  board  of  commissioners  before 
it  can  act  must  be  convened  in  legal  st;s- 
sion,  either  regular,  adjourned,  or  special  ; 
and  a  casual  meeting  of  two  out  of  the  three 
commissioners  does  not  create  a  legal  ses- 
sion. So  where  tsvo  ^A  the  commissioners 
meet,  without  notilying  the  third,  in  special 
session,  and  where  it  appears  that  notice  to 
the  third  member  was  purposely  withheld, 
a  resolution  directing  a  subscription  to  rail- 
road stock  is  not  binding  on  the  county; 
and  it  may  maintain  an  action  to  have  can- 
celed bonds  delivered  in  pursuance  of  such 
resolution.  Paola  &^  /•'.  A'.  A'.  Co.  v. 
Anderson  County  Com'rs,  16  Kan.  302. 

Where  a  statute  empowers  the  county 
court  to  subscribe  to  railroad  stock,  which 
it  has  actually  done  by  an  order  entered  of 
record,  it  may  then  appoint  an  agent  to 
make  the  entry  on  the  company's  books, 
and  receive  the  certificates  of  stock.  Han- 
nibal &*  St.  J.  R.  Co.  V.  Marion  County,  36, 
Mo.  294. 

Agents  who  are  appointed  to  carry  out 
the  provisions  of  law  relating  to  municipal 
subscriptions  to  railroad  stock  have  no 
power  to  make  any  agreement  not  expressly 
authorized  by  the  statute  under  which  they 
act.  So  commissioners  who  aru  appointed 
to  issue  town  bonds  for  stock  in  a  railroad 
have  no  right  to  enter  into  an  agreement 
that  the  proceeds  of  the  bonds  should  be 
used  in  purchasing  ties  for  the  road,  which 
should  remain  the  property  of  the  commis- 
sioners until  actually  placed  in  the  com- 
pleted road,  and  that  a  portion  of  the  road 
should  be  completed  within  a  specified  time. 
Joslyn  V.  Dow,  19  Hun  (N.   Y.)  494. 

And  where  the  company  has  failed  to 
comply  with  the  above  conditions  it  is  not 
estopped  from  insisting  on  the  invalidity  of 
such  contract,  but  may  tender  the  stock 
and  insist  on  a  delivery  of  the  bonds.  Joslyn 
V.Dow,  igHun  (N.  K) 494.— Distinguish- 
ing Bissell  V.  Michigan  S.  &  N.  I-.  R.  Co., 
22  N.  Y.  258  ;  Whitney  Arms  Co.  v.  Barlow, 
63  N.  Y.  62, 


MUNICIPAL   AND   LOCAL   AID,  180-18U. 


(113 


And  the  principal  agreement  in  such  case 
between  the  commissioners  and  the  com- 
pany being  unauthorized  and  void,  a  guar- 
anty of  the  aKn-eincnt  by  a  third  person  is 
void  also.  Jos/vn  v.  Dmc,  19  Hun  (N.  V.) 
494.  Ai'l'lYINti  McGn'^,'(jr  7/.  Deal  &  I).  R. 
Co.,  16  Eng.  L.  &  Kq.  180. 

Commissioners  appointed  by  a  town  to 
make  a  subsciiplion  of  railroad  stoci<  are 
tiic  agents  of  the  town,  and  of  no  otiicr  party 
in  that  business,  and  are  responsible  to  no 
other  party  for  the  manner  in  whicli  it  is 
e.xccule(i,  even  though  they  incorporate 
conditions  in  their  contract  of  subscription 
beyond  what  is  required  in  the  instrument 
of  assent  by  wliicli  they  receive  their  ap- 
pomtniciit  and  authority.  Dimvilk  v,  Mont- 
pclicr  ^'^  St.  J.  A'.  Co.,  43  I't.  144. 

The  insertion  of  a  condition  is  an  unau- 
tliorized  act  on  the  part  of  the  commission- 
ers, but  is  not  a  void  act  unless  tiie  town 
chooses  to  avoid  it,  and  without  rcpudi.i- 
tion  an  adoption  and  ratification  will  be 
presumed  as  to  the  town.  Danville  v. 
Moiitpelier  &>  St.  J.  A'.  Co.,  43  Vt.  144. 

IHO.  What  coiistit  ut«M  a  valid  con- 
tract of  subscription. — Where  a  county 
court  passes  a  resolution  reciting  that  it 
does  thereby,  in  the  name  of  the  county, 
subscribe  a  certain  amount  to  the  capital 
stock  of  a  railroad,  and  this  resolution  is 
presented  to  the  company  and  accepted,  and 
the  court  notified  of  the  acceptance,  the 
contract  of  subscription  is  complete,  and 
the  parties  are  bound  thereby.  Bates  County 
V.  Winters,  \12  U.  S.  325,  5  Sup.  Ct.  Hep. 
157.  —  Approving  Nugent  v.  Putnam 
County  Sup'rs,  19  Wall.  (U.  S)  241  ;  Moul- 
trie County  V.  Rockingham  Ten-Cent  Sav. 
Biink,  92  U.  S.  fii\.— Davis  v.  Kendallville, 
5  lUis.  ( U.  S.)  280.  Chicago,  K.  <V  W.  R. 
Co.  V.  Osai^e  County  Com'rs,  38  A'lw.  597,  16 
JW.  Rep.  828. 

An  actual  manual  subscription  on  the 
books  of  the  company  is  not  necessary  to 
bind  the  county  as  a  subscriber,  or  to  en- 
title it  to  the  stock.  Cass  County  v.  Gil- 
Ictt,  100  U.  S.  585.— Following  Moultrie 
County  V.  Rockingham  Ten-Cent  Sav.  Bank, 
92  U.  S.  62,1.— Nelson  v.  Haywood  County, 
38  Am.  (S-  Eng.  R.  Cas.  620,  87  7V««.  781. 
u  5.  W.  AV/».  8S5. 

181.  Power  to  modify  a  subscrip- 
tion after  it  is  made.— Where  a  county 
votes  to  subscribe  a  certain  amount  to  the 
stock  of  a  railroad  under  a  statute  which 
authorizes    tlic    subscriptiDH,    the    county 


board  has  no  power  to  alter  the  subscription 
voted,  nor  to  compromise  a  dispute  with 
the  company  for  a  less  amount,  /fell  v. 
A/oMe  iir'  O.  R.  Co.,  4  H'a/l.  {('.  S.)  598.-- 
'•'oi.l.oWKi)  IN  Putnam  v.  New  Albany,  4 
I'ss,  (U.  S.)365. 

1H2.  IrrcKUlarltles  cured  by  sub- 
sequent IcKlslatlon.*— If  there  be  any 
irregularity,  in  taking  the  votes  of  tiie  elec- 
tors or  otherwise,  in  issuing  city  bonds,  it 
may  be  remedied  by  legislation.  Gelpcke  v. 
Dubuque,  I    Wall.  (U.  S.)  175. 

A  railroad  company  was  authorized  to 
submit,  and  a  county  to  accept  by  popular 
vote,  a  provisiiiii  for  the  sale  of  its  stock  to 
the  county,  signed  by  its  president  or  secre- 
tary, and  under  its  common  seal.  A  prop- 
osition was  made,  signed  by  its  vice-presi- 
dent, and  under  its  common  seal;  and  this 
proposition  was  accepted.  Afterwards  a 
statiuc  w.is  |)assrd  providing  that  no  defects 
or  irregularities  in  any  of  the  proceedings 
preliminary  to  the  acceptance  should  in- 
validate such  agreement.  Held,  that  the 
defect  of  form  in  signing  the  proposition 
did  not  invalidate  the  contract.  Portage 
County  Sup'rs  v.  Wisconsin  C.  R,  Co.,  121 
Mass.  460. 

183.  Substantial  compliance  with 
statute. — Subscriptions  of  stock  in  corpo- 
rations by  county  courts  must  be  made  in 
substantial  conformity  to  the  mode  pre- 
scribed in  the  law  authorizing  the  subscrip- 
tion. Mercer  County  Court  v.  Kentucky 
River  A'av.  Co.,  8  lius/i  (A'y.)  300. 

Substantial  compliance  with  the  law  in 
every  essential  feature  is  all  that  is  neces- 
sary. Redd  V.  Henry  County  Sup'rs,  31 
Gratt.  {Va.)  695. 

The  failure  to  comply  strictly  with  the 
provisions  of  the  statute  which  are  not 
mandatory,  but  merely  directory,  will  not 
vitiate  the  proceedings  so  as  to  render  the 
subscription  invalid.  Redd  v.  Henry  County 
Sup'rs,  31  Gratt.  (  Va.)  695. 

A  subscription  of  stock  by  a  municipal 
corporation,  made  in  substantial  compliance 
with  the  terms  of  the  statute,  cannot  be 
held  invalid,  nor  a  tax  levied  to  pay  the  in- 
terest on  its  bonds  enjoined,  at  the  suit  of 
citizens  and  taxpayers,  on  account  of  irreg- 
ularities, not  fraudulent,  in  any  of  the  pro- 
ceedings preceding  the  subscription  which 


ii* 


« 

i 

5 


*  Ratification  by  legislature  of  unauthorized 
act,  see  note,  15  Am,  &  Eng.  R.  Cas.  575.  See 
aho  ante.  22,  23. 


i 


Wh 


'*  v;r^ 


614 


MUNICIPAL  AND  LOCAL  AID,  184,  185. 


P! 


M 


were  not  objected  to  before  the  subscrip- 
tion was  made  and  the  bonds  issued  ;  such, 
for  instance,  as  an  informality  in  the  propo- 
sition of  the  railroad  company,  or  tlie  want 
of  an  exact  conformity  between  the  propo- 
sition-and  tiie  subscription,  or  the  failure  of 
the  municipal  authorities  to  enter  their  ac- 
tion on  their  minutes  within  ten  days,  or  to 
hold  the  election  within  thirty  days.  Fielder 
V.  Montgomery  <3-  E.  R.  Co.,  51  Ala.  178. 

Proceedings  preparatory  to  issuing.'  the 
bonds  must  as  substantially  comply  \.  ith 
the  law  as  in  levying  a  tax  for  the  payment 
of  the  debt,  although  in  suits  brought  on 
such  bonds  by  innocent  holders  the  court 
rejects  proof  of  errors  in  or  about  the  elec- 
tion, or  in  issuing  the  bonds.  Objections 
made  by  taxpayers  before  the  bonds  are  is- 
sued are  in  time.  Goedgen  v.  Manitowoc 
County  Sup'rs,  2  Hiss.  ( U.  S.)  328. 

The  fact  that  one  grand  jury  requested 
the  commissioners  to  subscribe  twenty  thou- 
sand shares  to  the  capital  stock  of  a  rail- 
road company  and  the  commissioners  sub- 
scribed but  fifteen  thousand,  in  no  way 
invalidated  the  subscription  made.  Com. 
ex  ret.  v.  Perkins,  43  Pa.  St.  400. 

A  statute  authorized  a  county  to  issue  its 
bonds  in  payment  of  a  subscription  to  "  pre- 
ferred stock  in  a  railroad  company,"  and 
further  provided  that  the  county  should 
receive  preferred  stock  to  the  amount  of 
the  bonds,  which  should  bear  interest  at  the 
rate  of  seven  per  cent,  per  annum.  Held, 
that  the  term  "  preferred  stock,"  as  thus 
used,  meant  capital  stock,  and  only  differed 
from  other  stock  in  the  matter  of  prefer- 
ence as  to  the  seven  per  cent,  dividend. 
State  ex  rel.  v.  Cheraiv  &-•  C.  A\  Co.,  9  Am. 
&•  Eng.  R.  Cas.  631,  16  So.  Car.  524. 

And  where  a  certificate  of  such  stock  is 
tendered  by  the  company  which  simply 
sets  forth  that  the  county  is  entitled  to  the 
stated  amount,  but  impliedly  declares  that 
it  is  not  capital  stock,  it  is  not  sufficient, 
and  a  writ  of  mandamus  may  be  awarded 
requiring  a  certificate  in  substantial  com- 
pliance with  the  terms  of  the  statute.  State 
e.v  rel.  v.  C/teraw  &-  C.  R.  Co.,  9  Am.  &* 
Eng.  R.   Cas.  631.  16  So.  Car.  524. 

184.  Strict  pursiiniice  of  statutory 
requirements.— A  municipal  corporation 
cannot,  without  special  authority,  subscribe 
stock,  and  issue  bonds  in  payment  of  it,  in 
a  railroad  corporation.  But  such  authority 
may  be  conferred  upon  a  city,  when  it  is 
expedient ;  and  when  it  is  given  by  statute. 


in  any  case  it  must  be  executed  as  pre- 
scribed in  the  grant,  if  executed  at  all.  The 
terms  of  the  grant  cannot  be  legally  de- 
parted from  or  exceeded.  Aurora  v.  IVest, 
22  Ind.  88.  Harding  v.  Rockford,  R.  /.  Sr' 
St.  L.  R.  Co.,  65  ///.  90.  Shelby  County 
Court  v.  Cumberland  <5-»  O.  R.  Co.,  8  Bush 
(A/.)  209. — Distinguishing  Fulton  County 
Sup'rs  V.  Mississippi  &  VV.  R.  Co.,  21  111. 
338 ;  People  ex  rel.  v.  Tazewell  County,  22 
111.  147.—  Winston  v.  Tennessee  &»  P.  R.  Co., 
I  Ba.vt.  ( Tenn.)  60. 

If  the  act  of  the  legislature  authorize 
bonds  to  be  issued  of  a  certain  denomina- 
tion and  bearing  a  certain  rate  of  interest, 
the  municipal  corporation  has  no  author- 
ity to  issue  bonds  for  a  greater  denomina- 
tion and  an  increased  rate  of  interest.  Milan 
Tax-Payers  v.  Tennessee  C.  R.  Co.,  11  Lea 
(7V««.)  329.— Followed  in  Kelley  t/.  Milan, 
127  U.  S.  139. 

Where  the  statute  of  a  state  prescribes  the 
manner  in  which  a*  special  meeting  of  the 
board  of  supervisors  of  a  county  shall  be 
called,  a  special  meeting  held  without  ob- 
serving these  requirements  is  not  legal,  and 
has  no  authority  to  initiate  a  proceeding  to 
subscribe  for  stock  in  a  railroad  company 
and  issue  bonds  in  payment  therefor,  and 
proceedings  based  upon  the  action  of  such 
a  meeting  will  be  enjoined.  Goedgen  v, 
Manitowoc  County  Sup'rs,  2  Hiss.  ( U.  S.) 
328. 

The  forms  of  proceedings  in  the  submis- 
sion of  the  question  of  subscribing  stock 
and  issuing  bonds  to  a  railroad  corporation 
are  designed  as  a  protection  to  the  tax- 
payer, and  a  due  observance  of  these  forms 
is  essential  to  valid  action.  Lewis  v.  Bour- 
bon County  Com'rs,  12  Kan.  186.— DISTIN- 
GUISHED IN  Johnson  County  Com'rs  v. 
Thayer,  94  U.  S.  631. 

An  act  authorized  counties  to  subscribe 
to  the  stock  of  railroads  after  the  same  had 
been  "  recommended  by  a  grand  jury  and 
the  amount  of  the  subscription  ordered  and 
designated."  Held,  that  this  vested  ex- 
clusively all  discretionary  power  touching 
subscriptions  in  the  grand  jury,  both  as  to 
whether  a  subscription  should  be  made 
and  it  amount.  Therefore  a  recommenda- 
tion by  the  grand  jury  that  the  county  sub- 
scribe "  not  to  exceed  "  $150,000  was  not  a 
compliance  with  the  law.  Mercer  County 
V.  Pittsburgh  <S-  E.  R.  Co.,  27  Pa.  St.  389. 

185.  Ultra  vires  contracts.— A  cor- 
poration which  acts  through  its  agents  and 


MUNICIPAL  AND   LOCAL  AID,  186-188. 


(>15 


then  recognizes  the  acts  of  such  agents  and 
accepts  the  benefits  thereof  cannot  after- 
wards repudiate  such  acts  as  ultra  vires. 
So  where  a  county  through  its  commission- 
ers accepts  preferred  stocit  in  a  railroad 
company  for  bonds  which  it  has  voted  the 
company,  it  canrot,  after  the  road  is  built, 
clain'  that  the  acceptance  of  the  stock  was 
unauthorized  because  made  before  the  road 
was  built.  Lancaster  County  v.  Cheraw  &* 
C.  K.  Co.,  28  So.  Car.  134,  5  .V.  E.  Rep.  338, 
—Quoting  Ohio  &  M.  R.  Co.  v.  McCarthy, 
96  U.  S.  258. 

A  county  contracted  with  a  company  to 
take  stock  to  be  paid  for  by  bonds,  and 
the  directors  covenanted  that  the  company 
should,  during  the  time  the  bonds  had  to 
run,  pay  interest  on  the  stock  to  the  per- 
sons who  might  hold  the  bonds  in  discharge 
of  their  interest.  The  act  of  incorporation 
did  not  authorize  the  company  to  pay  in- 
terest on  stock.  Held,  that  the  contract 
with  the  county  was  ultra  vires.  The  di- 
rectors, in  contracting  for  a  bonus  to  the 
county  on  its  subscription,  were,  inderen- 
dently  of  the  act  of  assembly,  acting  with- 
out authority,  and  the  corporation  was  not 
bound.  Pittsburg  &^  S.  R.  Co.  v.  Allegheny 
County,  7()  Pa.  St.  210.— Following  Pitts- 
burg &  C.  R.  Co.  V.  Allegbciiy  County,  63 
Pa.  St.  126. 

186.  Election  called  hywrj>i!g  of- 
ficers.— Wiiere,  after  the  adoption  of  town- 
ship organization  by  a  county,  a  law  is 
passed  authorizing  the  county  court  of 
that  and  other  counties,  through  which  a 
railroad  is  located,  to  call  an  election  upon 
the  question  of  corporate  subscription  to  its 
capital  stock,  and  upon  a  favorable  vote  to 
issue  bonds,  these  acts  cannot  be  exercised 
by  the  board  of  supervisors  of  ^uch  county, 
and  the  subscription  so  made  and  bonds  is- 
sued are  void.  Scliuyler  County  Sup'rs  v. 
People  ex  rel.,  25  ///.  181.— DISTINGUISHED 
IN  Clarke  v,  Hancock  County  Sup'rs,  27 
111.  305.  Followed  in  South  Ottawa  v. 
Perkins,  94  U.  S.  260.  Quoted  in  Abing- 
ton  V.  Cabeen,  12  Am.  &  Eng.  R.  Cas.  581. 
106  111.  200. 

187.  Acceptance  by  the  company. 
— A  proposition  to  issue  bonds  to  a  railway 
company  is  in  the  nature  of  a  contract,  upon 
the  acceptance  of  which  botli  parties  are 
bound  by  the  agreement.  Wullenwaher  v. 
Dunigan,  30  Net.  877,  47  A'.  W.  Ref>.  420. 

The  county  court  of  Greene  county.  Mo., 
without  a  vote  of  the  people,  by  order  of 


June  20,  1870,  subscribed  $400,000  to  the 
capital  stock  of  Kansas  City  &  Memphis  R. 
Co.  Order  modified  October  4,  1870,  so  as 
to  make  subscription  to  Hannibal  &  St.  Jo- 
seph R.  Co.,  to  aid  in  building  the  K.  C.  & 
M.  R.  April,  1871,  order  made  rescinding 
former  orders,  and  in  July,  1871,  order  re- 
scinding the  rescinding  order  of  April,  1871, 
and  bonds  issued,  payable  to  the  H.  &  St. 
J.  R.  Co.,  or  bearer.  Held,  that,  as  there 
was  no  acceptance  by  the  latter  company  of 
the  subscription,  there  was  neither  a  con- 
tract nor  a  consideration  for  one,  and  that 
it  was  incompetent  for  the  K.  C.  &  M.  R. 
Co.  to  accept  the  subscription.  State  e.x 
rel.  V.  Garroutte,  67  Mo.  445.— Followed 
IN  Weil  v.  Greene  County,  69  Mo.  281. 

The  amendatory  act  of  March  23,  1861 
(Sess.  Acts  i860  and  1861,  p.  60,  §  2),  pro- 
hibited such  subscription  after  its  passage 
without  such  vote  to  any  railroad  company, 
whether  it  had  a  pre-existing  charter  au- 
thorizing a  subscription  by  counties  or  not. 
St.  Louis  V.  Alexander,  23  Mo.  483,  stron<>Iv 
criticised  and  condemsied.  (PerSlierwooi!, 
C.J.)     State  ex  rel.  v.  Garroutte,  67  Mo.  445. 

188.  ExerclMe  of  privileges  as  a 
stockholder.  —  The  Indiana  statute  au- 
thorizing townships  to  aid  railway  com- 
panies by  way  of  taking  stock  therein  con- 
templates that  the  township,  by  being  a 
stockholder,  may  have  such  an  interest  in 
the  property  of  the  corporation  as  shares  of 
stock  usually  represent,  and  such  an  influ- 
ence in  the  management  of  its  affairs  as  any 
other  holder  of  a  like  amount  of  stock  usu- 
ally has.  Hamilton  County  Coni'rs  v.  State 
ex  rel.,  36  Am.  &^  Eng.  R.  Cas.  210,  115  /«</. 
64,  4  A'.  E.  Rep.  589,  17  A^.  E.  Rep.  855.— 
Distinguishing  State  ex  rel.  v.  Delaware 
County  Com'rs,  92  Ind.  499. 

A  district  or  portion  of  a  county  empow- 
ered by  the  charter  of  a  railroad  company 
to  vote  a  subscription  of  stock  to  aid  in  the 
construction  of  the  road,  and,  through  the 
county  judge,  to  issue  its  bonds  in  its  name 
and  under  its  seal  or  ,scroll  in  payment  of 
the  subscription,  was  thereby  created  a  cor- 
poration ;  and,  the  subscription  having  been 
voted  and  the  bonds  issued,  no  other  pro- 
vision was  required  to  enable  the  taxing 
district  to  become  a  stockholder  in  the  rail- 
road company,  with  the  power  to  vote  its 
stock  and  receive  dividends  thereon.  The 
district,  however,  will  be  deprived  of  its 
right  to  vote  the  slock  or  receive  the  divi- 
dends to  the  extent  that  the  principal  of  the 


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MUNICIPAL   AND    LOCAL   AID,  180-194. 


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bonds  may  be  reduced  by  the  taxpayers. 
Kreiger  v.  Shelby-  R.  Co.,  84  Ky.  66. 

189.  Stock  iiiny  not  lie  surren- 
dered to  c*oni|mny. — Where  a  township 
is  authorized  to  subscribe  for  stock  in  a 
railroad,  it  cannot  agree  to  surrender  to  the 
company  the  stock  subscribed  for;  and  a 
contract  of  subscription  containing  such  a 
provision  is  void.  State  ex  rel.  v.  Brass- 
field, (yj  Mo.  ii\. 

VVliere  a  county  subscribed  to  the  stock 
of  a  railroad,  to  be  paid  in  bonds,  and  the 
county  agreed  to  transfer  such  stock  to  the 
company  on  payment  of  $1  on  each  $10,000 
of  Slock — held,  that  such  agreement  was  a 
fraud  per  se,  and  that  a  tender  of  certifi- 
cates of  stock  and  a  demand  of  the  bonds 
by  the  company  was  not  good  when  made 
on  condition  that  said  certificates  be  at 
once  traireferred  back  to  the  company, 
Macoupin  County  Court  v.  People  ex  rel., 
58  ///.  191,  II  Am.  Ry.  Rep.  98.— Fol- 
lowed IN  Madison  County  Court  t/.  People 
ex  rel.,  58  111.  456. — Madison  County  Court 
V.  People  ex  rel.,  58  ///.  456,  11  Am.  Ry. 
Rep.  66.— Following  Macoupin  County 
Court  V.  People  ex  rel.,  58  111.  191. 

190.  Power  to  sell  stock.—  It  was 
the  intention  of  N.  Y.  Act  of  1867,  ch.  747, 
relating  to  an  extension  of  the  time  for 
completing  the  Albany  &  Susquehanna  rail- 
road, to  authorize  the  supervisor  of  a  town 
to  recover  any  ?'oney  received  on  sale  of 
railroad  stock  belonging  to  the  town  which 
the  railroad  commissioners  should  wrong- 
fully neglect  or  refuse  to  account  for ;  and 
where  an  action  has  been  commenced,  it  is 
not  necessary  for  the  continuance  of  the 
action  to  substitute  a  successor  in  office  of 
the  original  plaintifl.  Griggs  v.  Griggs,  56 
N.  Y.  504  ;  affirming  66  Barb.  287. 

And  such  commissioners  are  properly 
chargeable  with  interest  on  the  amount  of 
any  funds  which  they  have  retained  and 
undertaken  to  appropriate  to  their  own  use. 
Griggs  V.  Griggs,  56  A'.  Y.  504;  affirming 
66  Barb.  287. 

The  Ohio  Act  of  1852,  by  necessary  im- 
plication, repealed  the  limitation  imposed 
by  the  act  of  1846  on  the  power  of  sale  of 
railroad  stock  subscribed  for  by  counties. 
h'nox  County  Com'rs  v.  McComb,  i'}  Ohio  i^t. 
320. 

191.  Bxelinnge  for  stock  ot' other 
companies. — Where  certain  commission- 
ers are  given  authority  by  statute  to  sub- 
scribe, in  the  name  of  the  citv,  to  the  stock 


of  a  railroad,  and,  under  certain  condi- 
tions, to  sell  the  same,  the  power  to  sell 
does  not  include  the  power  to  dispose  of 
the  stock  by  barter  or  by  exchange  for  the 
stock  of  another  company.  Cleveland  v. 
State  Bank,  i6  Ohio  St.  236. 

Where  a  special  statute  constitutes  cer- 
tain persons  named  therein  commissioners 
for  a  municipal  corporation,  and  confers  on 
them  power  to  subscribe,  in  the  name  of  the 
city,  to  the  stock  of  a  railroad,  a  following 
clause  authorizing  them  "to  do  whatever 
else  may  be  necessary  to  secure  and  advance 
the  interests  of  the  city  in  the  premises  " 
does  not  work  an  enlargement  of  the  powers 
specifically  granted,  but  the  phrase  *'  in  the 
premises"  limits  the  discretion  conferred 
to  the  manner  of  the  execution  of  the 
special  grants  of  power,  and  they  have  no 
power  to  exchange  the  stock  for  stock  in 
another  company.  Cleveland  w.  State  Bank, 
16  Ohio  St.  236. 

192.  Issuance  of  stock  certiflcutes 
to  individual  taxpayers.— Section  30  of 
the  Mo.  Act  of  Feb.,  1853,  authorizing  the 
formation  of  railroad  associations  (Sess. 
Acts  1853,  p.  121),  has  in  view  subscriptions 
made  after  the  passage  of  said  act — not 
subscriptions  made  prior  thereto.  Section 
33  of  that  act.  which  authorizes  the  levy 
of  a  special  tax  to  pay  interest  on  bonds 
theretofore  issued,  and  to  provide  a  sinking 
fund  to  pay  the  principal,  grants  no  stock 
rights  to  individual  taxpayers.  The  stock 
subscribed  prior  to  the  passage  of  this  act, 
under  the  authority  of  section  14  of  the  act 
of  1849  (Sess.  Acts  1S49,  p.  222),  belonged 
to  the  co!j,ity  subscribing  it  and  contracting 
to  pay  for  it,  notwithstanding  it  may  have 
been  paid  for  by  the  proceeds  of  special 
taxes  levied  under  section  33  of  the  act  of 
1853,  above'quoted.  Ridings  v.  //all,  48 
A/o.  100. 

193.  Void  ill  part.— VV'h»re  a  power 
created  by  statute  has  been  fully  executed, 
and  something  not  authorized  by  the  statute 
has  been  added,  but  which  is  clearly  distin- 
guishable from  the  rightful  execution,  the 
execution  of  the  power  is  good  sf)  far  as  au- 
thorized by  the  statute,  and  void  only  as  to 
the  excess.  So  held  where  county  commis- 
sioners in  issuing  bonds  in  aid  of  a  railroad 
added  a  clause  not  authorized  by  their  au- 
thority. A'nox  County  Com'rs  v.  Nichols, 
14  Ohio  St.  260. 

194.  Mode  of  payment  for  stock.— 
Where  a  city  is  authorized  to  issue  bunds 


MUNICIPAL  AND   LOCAL  AID,  195-197. 


G17 


f 


to  raise  money  to  pay  for  stock  in  a  railroad, 
the  bonds  may  be  used  directly  in  paying 
for  the  stoci<.    Meyer  v.  Muscatine,  i  Wall. 

(£/.  5.)384. 

The  company  may  taice  the  bonds  them* 
selves  at  par  in  exchange  for  stock.  Decker 
V.  Hughes,  68  ///.  33. 

An  act  of  assembly  authorized  a  cou.ity 
to  subscribe  for  stock  in  a  railroad  com- 
pany, and  to  pay  for  it  in  the  bonds  of  the 
county,  bearing  interest,  to  be  issued  for 
that  purpose,  the  county  to  make  provision 
for  the  payment  of  interest  as  in  other 
cases  of  its  bonds,  and  the  railroad  company 
to  receive  bonds  at  par  as  cash.  Held, 
that  the  act  contemplated  an  exchange  of 
the  stock  as  a  full  equivalent  for  the  bonds, 
and  that  the  county  should  occupy  no  better 
position  than  other  stockholders.  Pittsburg 
<S<»  .S.  R.  Co.  V.  Allegheny  County,  79  Pa.  St. 
210. 

195.  Elfect  of  division  of  iiiuiiici- 
pality. — That  portion  of  a  town  which  has 
been  separated  from  the  remainder  and  cre- 
ated a  new  township  will  be  liable  for  its 
share  of  the  indebtedness  upon  bonds  sub- 
sequently issued  for  a  subscription  to  rail- 
road stock,  in  accordance  with  a  vote  passed 
by  the  original  town  prior  to  such  division, 
and  this  indebtedness  exists  at  the  time  the 
vote  is  taken.    Hensley  Tp.  v.  People  ex  rel., 

84  ///.  544. 

196.  Acts  which  work  an  estoppel. 

— Where  a  county  is  authorized  to  subscribe 
for  railroad  stock,  and  passes  a  resolution 
reciting  that  the  subscription  has  been 
made,  and  the  bonds  have  been  issued  and 
delivered,  and  the  county  has  accepted  the 
stock,  and  has  voted  the  same,  and  has 
levied  a  tax  to  pay  interest  on  the  bonds,  it 
is  estopped  from  denying  the  validity  of  the 
subscription.  Nugent  v.  Putnam  County 
Suft'rs,  19  Wall.  (U.  S.)  241 ;  reversing  3 
/iiss.  105. — Approved  in  Bates  County?/. 
Winters,  112  U.  S.  325. 

Where  a  county  is  authorized  to  subscribe 
for  railroad  stock,  and  it  receives  the  stock 
to  be  issued  when  the  road  is  completed,  if 
it  retains  the  stock  it  will  be  estopped  from 
denying  that  the  road  is  completed.  Lan- 
caster County  V.  Cheraw  &•  C.  A\  Co.,  28  So. 
Oir.  134,55.  E.A'ep.  338. 

A  certificate  of  preferred  stock  was  dated 
Jan.  I,  1881,  and  bore  interest  from  that 
date,  but  was  not  delivered  until  the  fall  of 
1882.  Held,  that  tiie  stock  should  be  re- 
garded as  the  accepted  substitute  as  of  its 


date    for    the    county's  bond.      Lancaster 
County  V.  Cheraw  &*  C.  K.  Co.,  28  So.  Car. 

134,  S  •!>■•  E-  l^ep-  338. 

A  county  subscribed  $50,000  to  the  stock 
of  a  railroad,  tlie  bona  fides  of  which  was 
never  questioned.  Afterwards  a  statute 
was  passed  declaring  such  subscription  valid 
and  binding.  The  county  acted  on  it  for  a 
number  of  years  and  paid  in  on  calls  $15,- 
000.  Held,  that  all  defects  in  the  original 
subscription  were  cured.  Grand  Junction 
E.  Co.  V.  Hastings  County,  25  Grant's  Ch. 
(I/.  C.)40. 

197.  Contract  to  subscribe  as  well 
as  vote  essential. — All  the  acts  of  county 
commissioners  and  of  the  voters  of  a  county 
in  taking  steps  to  raise  money  to  take  stock 
in  an  incorporated  company  are  between 
themselves,  one  the  principal  and  the  other 
the  agent ;  there  is  no  contract  with  the  in- 
corporated company,  nor  has  it  any  right 
in,  or  control  over,  the  matter  until  the 
money  is  raised  and  the  stock  taken. 
Craivford  County  Coni'rs  v.  Louisville,  N.  A. 
&^  St.  L.  A.  L.  R.  Co.,  39  /nd.  192,  10  Aw. 
Ky.  Rep.  416. 

The  simple  voting  of  the  aid  by  the  town- 
ship is  not  a  subscription  to  the  stock  ;  but 
the  subscription  is  to  be  made  by  the  county 
board,  which  for  that  purpose  acts  as  the 
agent  of  the  township,  and  until  it  exe- 
cutes that  power  and  authority  there  is  no 
perfected  subscription.  Hamilton  County 
Com'rs  V.  State  ex  rel. ,  36  Am.  &*  En^.  R. 
Cas.  210,  115  Ind.  64,  4  A'.  E.  Rep.  589,  17 
A^.  E.  Rep.  855.  State  ex  rel.  v.  Roscoe,  25 
Minn.  445.  . 

And  it  makes  no  difference  that  the  vote 
of  the  county  is  to  subscribe  for  the  stock 
and  issue  bonds  upon  certain  conditions, 
which  conditions  the  railway  company  after- 
wards performs.  Land  Grant  R.  &-  T.  Co. 
v.  Davis  County  Com'rs,  6  Kan.  256. 

Where  the  stock  has  not  been  subscribed 
for,  and  no  express  contract  is  made  by  the 
county  to  subscribe  therefor,  the  county  is 
not  bound  to  issue  the  bonds  upon  tender 
of  the  stock  by  the  railway  company  to  the 
county.  Land  Grant  R.  &*  T.  Co.  v.  Davis 
County  Com'rs,  6  A'an.  256. 

An  order  of  a  county  court  directing  the 
county  judge  to  subscribe  for  stock  upon 
contingencies  therein  named  does  not  of 
itself  amount  to  a  subscription.  The 
county  judge's  voting  the  amount  of  stock 
proposed  to  be  subscribed  for  in  meetings 
of  the  stockholders  of  the  company  does  not 


1- 

a? 


IX 


:i; 


G18 


MUNICIPAL  AND   LOCAL  AID,  198-201. 


^! 


bind  the  county  to  tlie  subscription  asl)y  a 
ratification  or  estoppel.  Cumberland  i&>»  O. 
li.  Co,  V.  Barren  County  Court,  lo  Hush  (A)'.) 
604.  Mercer  County  Court  v,  Kentucky  River 
Nav.  Co.,  8  lius/i  (Ay.)  300. 

108.  Municipal  ofllccrs  stockliohl- 
ers  of  coiiiimiiy.— A  municipal  subscrip- 
tion to  the  capital  stock  of  a  railroad,  made 
in  pursuance  of  an  act  of  assembly,  is  not 
invalid  because  made  on  the  representations 
of  persons  interested  in  the  company.  Law- 
rence County  V.  North- Western  K.  Co.,  32 
Pa.  St.  144. 

Where  the  action  of  the  common  council 
in  voting  aid  tea  railroad  company  depends 
upon  discretion,  councilmen  who  are  stock- 
holders in  the  railroad  company  are  not 
competent  to  act,  and  a  grant  of  aid  carried 
by  their  votes  will  not  be  valid.  Madison 
V.  Smith,  83  Ind.  502. 

109.  Eft'ect  of  release  of  private 
subscribers.— A  municipal  subscription 
to  the  stock  of  a  railroad  company  that  had 
previously  released  its  private  subscribers 
from  their  subscriptions  is  not  valid  ;  and  a 
rescission  of  the  contract  will  be  decreed  on 
a  bill  filed  for  the  purpose.  Crawford 
County  v.  Pittsburgh  Sf  E.  R.  Co. ,  32  Pa. 
St.  141. — Approving  Mercer  County  v. 
Pittsburgh  &  E.  R.  Co.,  27  Pa.  St.  405. — 
Followed  in  Lawrence  County  v.  North- 
western R.  Co.,  32  Pa.  St.  144. 

Where  a  township  municipality  advanced 
a  large  sum  of  money  to  a  railway  company 
under  the  provisions  of  the  Consolidated 
Municipal  Loan  Fund  Act,  and  some  of  the 
stockholders  of  the  company  were  after- 
wards released  from  their  liability  by  an  act 
of  the  legislature,  passed  nearly  eighteen 
months  after  the  works  on  the  road  were 
stopped  for  want  of  funds,  and  new  com- 
panies were  formed  under  that  and  subse- 
quent acts  of  the  legislature  which  released 
the  new  corporation  from  the  construction 
of  the  original  line  of  road  until  a  new  line 
had  been  constructed,  and  it  appeared  that 
there  was  no  immediate  prospect  of  such 
a  result — held,  that  the  mimicipality  was 
not  released  from  liability  to  the  crown. 
Norwich  v.  Attorney-General,  2  Up,  Can. 
E.&'A.  541. 

200.  Elfect  of  anicndiiig  coiiipn- 
iiy's  charter.  —  Subscriptions  to  a  com- 
pany's capital  stock  are  not  released  by 
unactedupon  amendments  to  its  charter. 
Taylor  v.  Greenville  County  Sup'rs,  29  Am, 


&^  Eng.  Corp,  dxs.  187.  86  Va,  506,  10  5'. 
E,  Rep.  433,  13  I' a.  L.  J .  802. 

201.  N<>};lcct  to  piLSs  iiiiiiiicipal  or- 
(liiiaiive. — No  ordinance  was  passed  by  the 
city  council,  but  on  motion  the  proposition 
of  a  railroad  company  to  have  a  vote  of  the 
people  taken  for  a  subscription  to  the  stock 
of  the  company  to  the  amount  of  $300,000 
was  referred  to  the  mayor  with  authority  to 
order  an  election.  This  could  not  be  done. 
Therefore  the  acts  of  the  mayor  in  the  mat- 
ter were  unauthorized  and  illegal,  and  could 
not  impose  any  duty  or  obligation  on  the 
officers  of  the  municipal  corporation.  State 
ex  rel.  v.  Shreveport,  27  La.  Ann.  623. 

A  proposition  submitted  to  the  voters  of 
a  county  at  an  election  properly  called  was 
legally  carried,  and  duly  declared  carried  by 
the  board  of  county  commissioners.  Upon 
the  day  of  the  canvass  of  the  votes,  and  after 
the  proposition  had  been  declared  carried, 
the  county  clerk  asked  one  of  the  members 
of  the  board  in  the  presence  of  all  the  other 
members,  while  the  board  was  in  session  for 
the  transaction  of  business,  if  it  was  his 
duty  now  to  subscribe  for  the  stock  at  the 
proper  time ;  said  member,  in  the  presence 
of  the  other  members,  answered  that  it 
was.  No  objection  was  made  to  this  direc- 
tion by  any  member  of  the  board  ;  the  clerk 
understood  the  answer  to  be  an  order  from 
the  board  for  him  to  go  ahead  and  subscribe 
the  stock  ;  the  chairman  of  the  board  heard 
the  clerk  ask  the  question  concerning  the 
subscription  of  stock,  and  the  order  given 
him,  and  also  understood  thereby  that  the 
board  directed  the  clerk  to  subscribe  the 
stock.  The  order  for  the  subscription  w;is 
not  entered  of  record  in  the  proceedings  of 
the  board.  Soon  afterwards  the  county 
clerk  subscribed  the  stock  as  directed,  in  the 
name  of  the  county.  In  an  action  against 
the  county  upon  its  subscription  to  compel 
the  county  to  issue  its  bonds  therefor,  it  was 
contended  on  the  pan  of  the  county  that 
there  was  no  subscription,  as  no  resolution 
or  order,  in  writing  or  otherwise,  had  been 
adopted  authorizing  the  subscription  made 
by  the  county  clerk.  Held:  (i)  that  it  was 
competent  to  prove  by  parol  evidence  tha.t 
the  county  clerk  was  directed  by  the  board 
of  county  commissioners  to  subscribe  the 
stock,  and  that  the  evidence  of  one  of  the 
commissioners  that  he  did  not  hear  the  order 
or  direction  given  to  the  clerk  did  not  ren- 
der the  order   invalid ;  (2)    that   upon  the 


Mim 


MUNICIPAL   AND    LOCAL   AID,  202,  203. 


619 


' 


facts  testified  to.  ilie  suhscripiinn  miule  in 
tlie  name  of  the  county  was  valid.  Chicago, 
K.  iSr'  W.  A'.  Co.  V.  Stafford  County  Com'rs, 
36  Kan.  121,  12  Pac.  Rep.  593. 

202.  Kescissloii  of  contract  ofsiib- 
scriptiuii. — Where  a  county  has  subscribed 
to  railroad  stock,  tlie  individual  taxpayers  of 
the  county  have  n,i*  such  a  vested  right  in 
such  subscription  as  to  prevent  the  legisla- 
ture from  authorizing  its  withdrawal,  and  a 
release  of  the  stock.  People  v.  Coon,  25  Cat. 

635. 

When  the  city  of  Troy  had  made  a  valid 

subscription  of  $50,000  to  the  A.  &  N.  R. 

Co.,  and  had  issued  $25,000  of  its  bonds  in 

payment  of  one  half  the  subscription — helti, 

that  It  could  make  a  valid  contract  whereby, 

in  consideration  of  its  stock  in  the  company 

and  $6000  in  five  annual  payments,  it  was 

relieved  of  any  liability  for  the  remaining 

$25,000  of  bonds.     Troy  v.  Atchison  &*  N. 

A',  Co.,   II  /Can.  519.     Troy  v.  Atchison  <&>• 

N.  A'.  Co.,  13  A'an.  70. 

Where  a  county  issued  bonds  in  payment 
of  a  subscription  to  the  capital  stock  of  a 
railroad  under  an  act  of  assembly  which 
provided  that  they  should  not  be  sold  under 
par,  and  the  company  disposed  of  a  large 
quantity  of  such  bonds  at  sixty- four  per 
cent. — heM,  that  the  county  was  entitled  to 
rescind  the  subscription,  to  have  a  return  of 
the  bonds  remaining  in  the  hands  of  the 
company,  and  to  be  paid  the  par  value  of 
those  disposed  of.  Laivrence  County  v. 
North-  Western  A\  Co.,  32  Pa.  St.  144. 

The  parties  to  whom  such  bonds  have 
been  disposed  of  at  less  than  par  arc  not 
necessary  parties  to  a  bill  to  rescind  the 
contract  of  subscription,  nor  are  they  with- 
in the  original  jurisdiction  of  this  court. 
Lawrence  County  v.  North-  Western  A'.  Co., 
32  Pa.  St.  144.  —  Following  Crawford 
County  V.  Pittsburgh  &  E.  R.  Co.,  32  Pa. 
St.  141. 

Bonds  issued  by  counties  in  payment  for 
stock  were  prohibited  by  the  statute  from 
being  sold  at  less  than  par;  the  company 
increased  the  stipulated  prices  for  the  work 
of  the  contractors  36  per  cent,  and  paid  in 
bonds  at  par.  Ne/d,  that  this  was  a  fraud 
on  the  counties,  and  entitled  them  to  rescis- 
sion of  the  contract  for  the  stock.  Law- 
rence County's  Appeal,  67  Pa.  St.  87. 

The  supervisors  of  a  county  having  re- 
solved to  "subscribe  the  sum  of  $100,000  on 
condition  that  the  town  of  D.  subscribed 
$50,000,    that    subscription    cannot   subse- 


quently be  rescinded  by  them,  and  a  resolu- 
tion by  them  to  this  effect  was  invalid.  And 
the  town  of  D.  having  made  the  subscription 
of  $50,000,  the  supervisors  may  carry  out 
their  subscription  of  $100,000  and  direct  the 
issue  of  the  bonds  of  the  county  therefor  in 
the  mode  prescribed  by  the  statute.  Redd 
V.  Henry  County  Siip'rs,  31  Gratt.  (  Va.)  695. 

A  city  subscribed  a  large  amount  to  the 
capital  stock  of  a  railroad,  but  owing  to  liti- 
gation which  largely  destroyed  the  value  of 
the  bonds  it  became  entirely  unable  to 
build  the  road.  Meanwhile  the  company 
had  pledged  $80,000  of  the  bonds  as  collat- 
eral to  secure  a  loan  of  $30,000.  The  com- 
pany was  imable  to  redeem  the  pledge,  and 
the  holders  were  demanding  payment,  and 
threatening  to  sell  the  bonds.  Held,  tliat 
the  city  had  the  right  to  compromise  with 
the  company  for  a  surrender  of  the  bonds 
upon  paying  the  amount  of  the  cofiipany's 
loan  bv  the  city.  Ne7v  Albany  v.  Purhe,  1 1 
Wall\u.  5.)  96. 

203.  Liability  of  iiiiiiiicipality  for 
debts  of  coiiipaiiy.— (I)  In  general.— \n 
act  of  the  legislature  authorizing  a  municipal 
corporation  to  subscribe  for  stock  of  a  rail- 
road company,  the  subscription  to  be  made 
upon  the  condition  that  the  municipal  cor- 
poration shall  not  be  liable  for  the  debts  of 
the  company,  and  that  the  provision  as  to 
said  liability  be  made  a  part  of  and  be  stipu- 
lated in  all  contracts  made  by  the  railroad 
company  for  the  construction  and  equipment 
of  its  road,  does  not  exempt  the  municipal 
corporation  from  liability  for  the  debts  of 
the  railroad  company  further  than  such  ex- 
emption can  be  secured  by  persons  contract- 
ing with  the  railroad  company  expressly 
stipulating  in  their  contracts  to  waive  all 
claims  against  the  municipal  body  for  pay- 
ment of  the  debt.  French  v.  Teschemaker, 
24  Cal.  518. 

Where  the  county  court  of  a  county 
makes  an  unconditional  subscription  to  the 
capital  stock  of  a  railway  under  legal  au- 
thority, the  contract  will  be  complete,  and 
creditors  of  the  company  may  rely  upon  it 
for  payment  of  their  debts  as  upon  any  other 
assets  of  the  company,  although  the  com- 
pany may  subsequently  abandon  all  pro- 
ceedings under  its  charter  on  account  of  its 
insolvency.  .Morgan  County  v.  Thomas,  76 
///.  120.    ' 

The  president  of  a  railway  has  no  author- 
ity, by  virtue  of  his  office,  to  consent  that  a 
subscription  to  the  company  which  is  abso- 


\\W 


I 


620 


MUNICIPAL   AMJ    LOCAL   AID,  203. 


lute  and  unconditional  sliall  be  changed  so 
as  to  become  conditional,  to  the  prejudice 
of  the  company  or  its  creditors.  Morgan 
County  V.  Thomas,  76  ///.  1 20. 

Wiiere  a  city  votes  aid  to  secure  the 
building  of  a  certain  part  of  a  railroad,  a 
creditor  of  the  company  cannot  trustee  the 
town  and  hold  it  for  a  debt  not  incurred  in 
tlie  building  of  that  part  of  the  road  for 
which  the  aid  was  granted.  Pike  v.  Bangor 
l'^  C.  S.  L.  R.  Co.,  68  Me.  445,  20  Am.  Ky. 
Kep.  407, 

A  county  subscription  for  stock  in  a  rail- 
road company,  under  Tenn.  Code,  §§  1142, 
1 143,  rests  wholly  upon  these  statutory  provi- 
sions, by  which  the  county  court  is  limited 
to  the  assessment  and  collection,  by  taxa- 
tion, of  the  specific  amount  of  the  subscrip- 
tion, and  the  company  restricted  to  the 
remedy  of  mandamus,  specially  awarded,  for 
the  enforcement  of  its  assignment  and  col- 
lection. Deferred  instalments  of  the  sub- 
scription are  not  upon  the  footing  of  past 
due  indebtedness  bearing  interest.  Hum- 
p/ireys  County  v.  McAdoo,  7  Heisk.  {Tenn.) 
585.— Reviewing  Louisville  &  N.  R.  Co.  v. 
Davidson  County  Court,  i  Sneed  (Tenn.) 
688. 

It  is  not  competent  for  a  railroad  creditor 
to  subject  an  unpaid  balance  of  county  sub- 
scription to  the  satisfaction  of  his  claim 
against  the  company,  by  attachment,  and 
decree  over  against  the  county,  to  be  made 
effectual  through  process  of  the  chancery 
court  to  compel  the  assessment  and  collec- 
tion of  the  necessary  taxation,  these  being, 
as  stated,  compellable  only  by  mandamus ; 
but  the  creditor  may,  by  attachment  and  in- 
junction, fasten  a  lien  upon  the  unpaid  bal- 
ance of  the  subscription,  and  have  secured 
to  him  by  decree  the  right  of  the  company 
to  apply  to  the  circuit  court  to  compel  the 
assessment  and  collection  bv  the  county  of 
the  necessary  tax.  and  its  payment  to  him- 
self when  collected ;  or  the  chancellor  may 
carry  out  by  decree  any  arrangement  be- 
tween the  creditor  and  the  company  for 
securing  to  the  former  a  preference  over  the 
other  creditors  of  the  latter.  Humphreys 
County  V.  McAdoo,  7  Heisk.  ( Tenn.)  585. 

(2)  Illustrations. — After  the  making  of  an 
unconditional  subscription  by  a  county  to 
a  railway,  and  the  issue  of  its  bonds  and 
placing  them  in  the  hands  of  a  depositary, 
I  lie  company  gave  an  order  for  $2000  of 
them  to  a  bona  fide  creditor,  w.io  transferred 
his  order  to  a  third  person.    Held,  not  ma- 


terial whether  the  delivery  to  the  deposi- 
tary was  upon  conditions  or  not,  as  the 
order  operated  as  an  equitable  assignment 
of  $2000  of  the  subscription  which  the 
county  could  not  disregard  after  notice  of 
the  claim.  If  the  bonds  were  delivered  un- 
conditionally in  payment  of  the  subscrip- 
tion, the  holder  was  entitled  to  the  bonds 
called  for,  in  the  order,  from  the  depositary, 
but  if  not  so  delivered  the  county  was  still 
bound  on  its  subscription.  Morgan  County 
V.  Thomas,  76  ///.  1 20. 

Where  a  contractor  for  building  a  railroad 
had  agreed  to  take  the  bonds  of  a  county 
which  had  made  an  unconditional  subscrip- 
tion, and  that  they  should  be  applied  to 
payment  of  work  done  in  that  county  alone, 
and  upon  the  representation  of  this  fact  the 
county  authorities  issued  their  bonds  and 
placed  them  in  the  hands  of  a  third  party, 
and,  the  contractor  having  abandoned  tiie 
work  the  company,on  settlement  with  him, 
gave  him  an  order  on  the  depositary  for 
$2000  of  these  bonds,  which  was  for  work 
done  out  of  the  county — held,  that  after 
the  contract  was  abandoned  the  contractor 
was  no  longer  bound  by  it,  and  had  a  right 
to  look  for  payment  to  any  assets  of  the 
company,  and  was  not  estopped  from  taking 
an  order  for  a  portion  of  the  county  bonds 
for  what  was  owing  him  for  work  done  else- 
where than  in  the  county.  Morgan  County 
v.  Thomas,  76  ///.  1 20. 

An  order  of  a  county  court  for  the  issue 
and  delivery  of  bonds  in  payment  of  a  sub- 
scription to  a  railway  recited  that  the  pres- 
ident of  the  company  had  certified  to  the 
court  that  the  company  had  placed  its  road 
contract,  to  be  completed  by  a  given  day 
from  a  point  in  an  adjoining  county  to  a 
point  in  the  county  of  the  court,  and  that 
it  was  provided  in  the  contract  for  con- 
struction of  the  road  that  the  bonds  of  such 
county  should  be  expended  for  work  done 
in  that  county,  and  not  elsewhere,  etc.,  and 
being  satisfied, etc., concluded  :  "It is, there- 
fore, ordenid  that  there  be  delivered  to 
the"compr.ny  "the  amount  of  $50,000  in 
bonds  of  this  state."  Held,  that  such  order 
was  not  qualified  with  any  conditions  that 
the  bii.^ds  should  be  expended  in  construct- 
ing that  part  of  the  road  in  the  county. 
Morgan  County  v.  Thomas,  76  ///.  3  20. 

PlaintifT  sued  a  railroad  company  and 
issued  trustee  process  against  a  city  which 
had  subscribed  to  the  company's  stock,  and 
claimed  to  charge  the  city,  as  trustee,  for 


MUNICIPAL   AND    LOCAL   AID,  204. 


631 


two  assessments  on  the  stock  of  the  com- 
pany. Held,  that  the  city  was  not  liable  for 
an  assessment  made  before  its  subscription 
was  made;  and  under  the  charter  of  thje 
company,  which  authorized  the  directors 
"to  make  equal  assessments"  on  all  of  the 
shares  of  corporations,  the  city  was  not 
liable  on  the  other  assessment,  which  was 
against  stock  held  by  towns  and  cities  only, 
not  including  individual  ubscripiions.  Pike 
V.  Battgor  &•  C.  S.  L.  N.  Co.,  68  Me.  445,  20 
Am.  Ry,  Rep.  407. 

Two  counties  each  subscribed  to  the 
stock  of  a  railroad,  on  the  same  terms, 
about  the  same  time,  and  under  the  same 
act  of  assembly.  Held,  that  there  was  no 
joint  liability  by  the  two  counties,  nor  a 
liability  to  contribute  to  each  other's  losses. 
Neither  could  one  appeal  from  the  adjudica- 
tion of  a  question  affecting  the  other.  Law- 
rence County's  Appeal,  67  Pa.  St.  87.— Dis- 
tinguishing In  re  Cork  &  Y.  R.  Co.,  L.  R. 
4  Ch.  748 ;  Henderson  v.  Royal  British 
Bank.  7  El.  &  Bl.  356. 

To  a  declaration  under  14  &  15  Vict. 
c.  57,  §  '9.  by  judgment  creditors  of  a 
railway  company  against  a  municipality  as 
shareholders  defendants  pleaded,  in  sub- 
stance, that  they  subscribed  for  the  stock 
under  a  by-law  which  provided  that  their 
debentures,  payable  in  1877,  should  be  issued 
for  the  sum  subscribed  as  the  same  should 
become  payable,  and  that  the  company 
should  take  such  debentures  at  par;  and 
that  the  plaintiff  knew  this  before  he  be- 
came a  creditor.  Held,  on  demurrer,  a  good 
defense.  Higgins  v.  Whitby,  20  U.  C.  Q.  B. 
296. 

The  19th  clause  of  the  statute  does  not 
apply  in  the  case  of  a  subscription  under  the 
1 8th  unless  such  subscription  is  made  in 
the  ordinary  manner.  Higgins  v.  Whitby, 
20  U.  C.  Q.  B.  296. 

In  an  action  under  the  statute  by  judg- 
ment creditors  of  a  railway  company  against 
a  municipal  corporation  as  shareholders,  it 
appeared  that  the  contractors  for  a  portion 
of  the  road  had  received  a  lease  from  the 
railway  company  of  that  part  for  999  years 
at  a  nominal  rent,  and  as  an  inducement 
to  the  defendants  and  two  other  municipal- 
ities to  take  stock  they  had  mortgaged  their 
lease  to  trustees  to  secure  payment  to  such 
municipalities  of  six  per  cent,  on  the  sums 
subscribed  by  them.  This  mortgage,  to 
which  the  railway  company  was  a  party, 
provided  for  the  payment  by  the  municipal- 


ities of  the  amount  of  stock  taken  by  eacli 
to  the  contractors  as  tlie  work  progressed 
upon  the  estimiitcs  of  the  company's  engi- 
neer, and  the  full  amount  of  defendants' 
subscription  had  been  thus  paid.  Held,  that 
tills  was  a  payment  of  defendants'  stock  as 
against  the  plaintiffs,  who  therefore  could 
not  recover.  Woodruff  v.  Petcrborouq;h,  22 
U.  C.  (J.  />'.  274. 

IX.  WHAT  BO&DS  KAY  BE  AIDED. 

204-.  Ill  general.— .A  statute  authoriz- 
ing a  town  to  vote  bonds  in  aid  of  two  rail- 
roads empowers  it  to  vote  the  aid  to  either 
one.  P'irst  Nat.  Bank  v.  Concord,  50  Vt.  257. 

A  railroad  running  through  is  a  railroad 
running  to  a  city ;  and  if  a  city  is  authorized 
to  subscribe  slock  to  a  railroad  running  to 
it,  and  it  is  not  made  a  point  in  the  charter 
of  such  road,  it  can  only  be  made  so  by  sub- 
sequent action  of  the  directors  of  the  rail- 
road corporation,  and  until  such  action  has 
been  had  no  al)solute  subscription  of  stock 
in  sucii  corporation  can  be  made  by  such 
city.    Aurora  v.  West,  22  Ind.  88. 

Where  a  tax  was  voted  in  aid  of  the  con- 
struction of  a  railroad,  and  a  narrow  gauge 
road  was  constructed,  the  township  trustees 
were  guilty  of  no  fraud  in  certifying  to  the 
fact  that  a  railroad  had  been  constructed 
as  contemplated  in  the  notice  of  election. 
Meader  v.  Lowry,  45  Iowa  684. — Followed 
IN  Sioux  City  &  P.  R.  Co.  v.  Herron,  46 
Iowa  701. 

A  municipality  authorized  by  the  legisla- 
ture to  take  stock  in  a  company  incorpo- 
rated for  the  construction  of  a  line  of  rail- 
road particularly  defined  by  the  act  is  not 
bound  to  issue  debentures  to  a  company  not 
incorporated  to  construct  that  specific  line. 
a  subscription  to  its  stock  list  by  the  warden 
being  ultra  vires  and  a  nullity.  Ex  parte 
Nt-iv  Brunswick  R.  Co.,  15  Ne^u  Brun.  78. 

A  railroad  company  was  chartered  and 
organized  under  the  laws  of  the  territory  of 
Kansas,  which  provided  that,  after  $50,000 
had  been  subscribed  to  its  capital  stock, 
and  ten  per  cent,  actually  paid,  and  a  certifi- 
cate thereof  filed  in  the  office  of  the  secre- 
tary of  state,  the  corporators  might  organize 
and  "  open  books  for  further  subscriptions, 
requiring  payments  or  instalments  from 
time  to  time."  Held,  that  such  corporation 
had  the  right  to  accept  the  benefits  of  the 
provisions  of  chapter  90,  Laws  of  1870,  enti- 
tled "  An  iict  to  enable  municipal  townships 
to  subscribe  for  st'>ck  in  anv  railroad,  and 


"^1 


G23 


MUNICIPAL  AND   LOCAL  AID,  205-207. 


iil    ! 


til 


Sir, 


I    '• 


to  provide  for  the  payment  of  tlie  same," 
notwithstanding  this  subscription  was  to  be 
paid  in  the  bonds  of  the  township,  and  not- 
withstanding the  bonds  were  not  to  be  is- 
sued until  the  railroad  should  have  been 
completed  ihrougli  the  township  voting 
the  bonds,  or  to  such  point  in  the  township 
lis  might  be  agreed  upon  in  the  terms  of 
submission  to  the  voters.  Atchison,  T.  &^ 
S.  /'".  A'.  Co.  V.  Jefferson  County  Coin'rs,  21 
Kitn.  309. 

An  act  of  the  legislature  of  Arkansas, 
passed  in  1868,  authorizes  any  county  to 
subscribe  to  the  stock  of  any  railroad  com- 
pany in  that  state,  provided  the  subscription 
shall  not  exceed  $100,000,  and  the  consent 
thereto  of  the  inhabitants  of  the  county 
shall  first  be  obtained  at  an  election  held 
for  that  purpose.  At  an  election  held  under 
that  act  the  voters  of  a  county  voted  to  sub- 
scribe $100,000  each  to  the  stock  of  two 
different  companies.  Held:  (i)  the.':  the  act 
does  not  restrict  the  county  to  a  single  sub- 
scription ;  (2)  that  the  power  to  subscribe  is 
general,  limited  only  by  the  subscription  of 
$100,000  to  the  stock  of  any  one  company. 
Chicot  County  v.  Leivis,  3  Am.  6^  Eng.  R. 
Cas.  137,  103  U.  S.  164. 

205.  Change  of  name  of  road.— A 
subscription  to  a  railroad  is  not  forfeited  by 
an  amendment  to  the  charter  changing  the 
name  of  the  road,  where  the  officers  and 
road  otherwise  remain  the  same.  Retuiing 
v.  IVetUer,  66  ///.  80.  Com.  ex  rel.  v.  Pitts- 
burgh Councils,  41  Pa.  St.  278. 

A  condition  upon  which  a  county  was  to 
take  stock  in  a  railroad  to  pass  through  the 
county,  and  connect  Knoxville  with  Dan- 
ville or  Lexington,  Ky.,  was  that  the  charter 
was  to  be  obtained  at  the  meeting  of  the 
legislature  in  1853.  On  the  i8th  of  Febru- 
ary, 1854,  the  legislature  amended  the  charter 
of  the  Lexington  &  K.  R.  Co.,  by  which  the 
name  was  changed  to  that  of  the  Knoxville 
&  K.  R.  Co.  Held,  that  this  change  of  name 
of  the  road  was  not  even  a  substantial  com- 
pliance with  the  conditions  of  the  proposed 
subscription,  and  conferred  no  authority  to 
issue  the  bonds  of  the  county  except  upon 
the  conditions  prescribed  by  the  act  of  1851- 
52.  While  the  act  of  Feb.,  1854,  may  have 
made  valid  the  action  of  the  county  court 
in  ordering  the  election,  and  the  election 
held  in  pursuance  thereof,  it  did  not  confer 
upon  the  chairman  of  the  county  court  the 
power  to  do  other  acts  unauthorized  by  law, 
or  to  issue  the  bonds  as  proposed  by  the 


relator.  Campbell  County  v.  Knoxville  &• 
a:  y»'.  Co.,  6  Cold7v.  {Tenn.)  598. 

20W.  CunNoIidatioii  before  8iib- 
^eriptiou  conipletcil.— Commissioners 
appointed  to  subscribe  to  the  stock  of  a  cer- 
tain railroad  have  no  power  to  subscribe  to 
stock  of  a  company  formed  by  the  consoli- 
dation of  that  company  with  another,  un- 
der a  different  name  and  with  different  ter- 
mini, and  a  court  cannot  compel  them  to  do 
so.  Rochester,  A\  <S«  /'.  R.  Co.  v.  Cuyler,  7 
Lans.  {X,  F.)  431. 

Where  bonds  were  authorized,  and  the 
company  to  which  they  were  voted  consoli- 
dated with  another,  and  the  bonds  were  is- 
sued to  the  new  or  consolidated  company, 
the  extinction  of  the  company  to  which  the 
subscription  was  voted  revoked  the  power 
to  subscribe.  Harshman  v.  Bates  County, 
92  U.  S.  569.— Criticised  in  Livingston 
County  V.  First  Nat.  Bank,  128  U.  S.  102. 
Distinguished  in  Scotland  County  v. 
Thomas,  94  U.  S.  682;  Wilson  w.  Salamanca 
Tp.,99U.  S.  499.  Reviewed  in  State  ex 
rel.  V.  Garroutte,  67  Mo.  445. — State  ex  rel. 
V.  Nemaha  County  Com'rs,  10  Kan.  569. — 
Distinguished  in  Chicago,  K.  &  W.  R. 
Co.  V.  Stafford  County  Com'rs,  36  Kan.  121. 

A  Missouri  town  voted  to  subscribe  to 
the  stock  of  a  railroad.  The  county  court 
then  passed  an  order  that  the  sum  voted 
"  be  and  is  hereby  subscribed  "  to  "  the  said 
road,"  and  appointed  an  agent  to  make  the 
subscription  on  certain  conditions.  The 
agent  failed  to  complete  the  subscription,  so 
reported,  and  his  report  was  approved  by 
the  court.  Afterward  the  road  consolidated 
with  another,  and  the  court,  without  any 
new  election,  made  the  subscription  to  the 
consolidated  company.  Held,  that  the  sub- 
scription to  the  original  company  never  waS 
complete,  notwithstanding  the  order  of  the 
court  that  the  sum  voted  "  be  and  is  hereby 
subscribed, '  and  that  the  subscription  to 
the  consolidated  company  was  unauthorized. 
Bates  County  v.  Winters,  97  U.  S.  83. — 
Criticised  in  Livingston  County  v.  First 
Nat.  Bank,  128  U.  S.  102. 

207.  Consolidation  after  Hiibscrip- 
tion  completed.— Where  the  charter  of 
a  company  authorizes  it  to  consolidate  with 
other  companies,  and  a  municipal  subscrip- 
tion is  made  with  knowledge  that  it  is  liable 
to  be  transferred  to  another  company,  and 
a  subsequent  transfer  takes  place  to  another 
company,  for  the  purpose  of  securing  the 
construction  of  the  road  and  the  forming  of 


MUNICIPAL  AND   LOCAL   AID,  208,  ao«. 


688 


a  continuous  line,  it  is  lawful  to  deliver  the 
bonds  to  the  new  company.  Kast  Lincoln 
V.  Davenport,  ^\  U.  S.  8oi.— Followed  in 
Livingston  County  v.  First  Nat,  Bank,  128 
U.  S.  102. —  Chickaming  Tp.  v.  Carpenter, 
106  U.  S.  663,  I  Sup.  Ct.  Rep.  620.— Fol- 
lowing New  Ruflalo  v.  Cambria  Iron  Co., 
105  U.  S.  Ti.—New  Buffalo  v.  Cambria  Iron 
Co.,  105  U.  S.  '/3. — Followed  in  Living- 
ston County  V.  First  Nat.  Bank,  128  U.  S. 
102. — /iates  Count}'  v.  Winters,  \\2  U.  S. 
325,  5  Sup.  Ct.  Rep,  157.— Followed  in 
Livingston  County  v.  First  Nat.  Bank,  128 
U.  S.  \o2.— Illinois  Midland  R.  Co.  v. 
Bar  net  t  Sup'rs,  85  ///.  313.  Edwards  v. 
People,  88  ///.  340.  Atchison,  C.  &•  P.  R. 
Co.  V.  Phillips  County  Cotn'rs,  4  Am.  &^ 
E>tg.  R.  Cas.  326,  25  Kan.  261. 

Such  bonds  are  not  invalidated,  after  a 
vote  according  to  law,  by  being  issued  to 
another  company  with  which  the  road  to 
which  they  were  voted  has  consolidated 
under  a  law  existing  at  the  time  of  the  vote. 
Wilson  V.  Salamanca  Tp.,  99  C/.  S.  499.  — 
Disiinguishing  HarshmanT'.  Bates  Coun- 
ty, 92  U.  S.  569.  Following  Scotland 
County  V.  Thomas,  94  U.  S.  682.— Approved 
IN  Menasha  f.  Hazard,  102  U.  S.  81.  FoL- 
L<iwED  IN  Li^ringstr  <  County  v.  First  Nat. 
Bank,  128  U.  S.  102. 

Where  a  consolidation  takes  place  after  a 
county  has  subscribed  to  the  stock  of  one 
of  the  companies,  bonds  issued  to  the  con- 
solidated company  are  illegal  and  invalid. 
Nugent  V.  Putnam  County,  3  Biss.  (U.  S.) 
105;  reversed  in  19  Wall.  241. — Review- 
ing Clearwater  v,  Meredith,  i  Wall.  25. 

The  supervisors  had  no  authority  to  issue 
the  bonds  after  the  consolidation.  Nugent 
V.  Putnam  County  ,  3  Biss.  {U.  S.)  105  ;  re- 
versed in  19  Wall.  241. 

The  bonds  are  not  made  valid  by  making 
tlieni  payable  to  the  original  company,  nor 
by  a  provision  in  its  charter  allowing  it  to 
consolidate.  Nugent  v.  Putnam  County,  3 
Biss.  (U.  S.)  105;  reversed  in  19  Wall.  241. 

208.  Subscription  after  cousolida- 
ti«ni.— A  railroad  consolidated  with  other 
lines  under  authority  of  law  before  bonds 
were  voted  to  it.  I/eld,  that  at)  issue  and 
delivery  of  the  bonds  to  the  consolidated 
company  was  lawful.  Menasha  v.  Hazard, 
102  U.  S.  81.— Approving  Scotland  County 
V.  Thomas,  94  U.  S.  682 ;  Wilson  v.  Sala- 
manca Tp.,99  U.  S.  499.— Followed  in 
Livingston  County  v.  First  Nat.  Bank,  128 
U.  S.  102. 


A  railroad  was  chartered  in  Missouri  with 
a  provision  that  it  should  be  lawful  for  the 
county  court  to  subscribe  to  the  stock  of 
the  road  in  any  county  in  which  a  part  of  the 
road  might  be.  The  general  law  of  the  state 
reserved  the  right  to  alter  or  amend  the  char- 
ter. Afterwards  the  company,  by  authority 
of  law,  consolidated  with  an  Iowa  company 
which  enjoyed  the  same  rights,  //eld,  that 
the  power  of  the  counties  to  subscribe  under 
the  original  charter  passed  to  the  consoli- 
dated company.  Scotland  County  V.  Thomas, 
94  (J.  S.  682;  affirming  3  /)ill.  7. — Appr(jv- 
ing  State  ex  rel.  v.  Greene  County,  54  Mo. 
540.  Distinguishing  Harshman  w.  Bates 
County,  92  U.  S.  569.  — Approved  in 
Menasha  v.  Hazard,  102  U.  S.  81.  Fol- 
lowed in  Wilson  V.  Salamanca  Tp.,  99  U. 
S.  499;  Livingston  County  v.  First  Nat. 
Bank,  128  U.  S.  102. 

Where  an  act  authorizes  the  issuanx:e  of 
bonds  to  one  road  upon  twenty  days'  notice 
of  election,  and  after  the  notice  has  begun 
to  run,  and  before  the  election  day,  an  act 
is  passed  authorizing  the  issuance  tp  a  con- 
solidated road,  the  bonds  issued  to  such 
consolidated  road  are  valid.  Nelson  v. 
//aywood  County,  38  Am.  &*  Eng-  R.  Cas. 
620,  87  Tenu.  781,  II  S.  W.  Rep.  885. 

Where  a  statute  authorizes  a  town  to  sub- 
scribe a  stated  amount  to  each  of  two  rail- 
roads, and  they  subsequently  consolidate, 
the  new  company  is  only  entitled  to  such 
subscription  as  the  town  could  have  made 
to  either  of  the  former  companies.  Pana 
V.  Li/pincott,  2  ///.  App.  466. 

The  charter  of  an  Illinois  railroad  pro- 
vided that  "any  incorporated  town  or  town- 
ship in  counties  acting  under  township 
organization  along  the  route  of  said  road 
may  subscribe  to  the  capital  stock  of  said 
company  in  any  sum  not  exceeding  $250,. 
000."  A  certain  town  subscribed  $50,000, 
Afterwards  the  road  was  consolidated  with 
another,  and  the  town  subscribed  $25,000  to 
the  consolidated  company,  //eld,  that  the 
second  subscription  was  legal.  Empire  Tp. 
V,  Darlington,  \o\  U.  S.  87. 

200.  Koads  outside  of  taxing  dis- 
trict.— The  creation  of  municipal  indebt- 
edness in  the  subscription  to  the  capital 
stock  of  a  railroad  lying  wholly  in  another 
state  is  for  a  corporate  purpose;  as  in  the 
case  of  the  city  of  Quincy,  situated  upon 
the  western  border  of  the  state,  subscribing 
to  the  stock  of  a  railroad  to  be  constructed 
from  a  point  on  the  Mississippi  river  oppo- 


.-•  ^''M 


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dK^JMBKlWMHl 


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m 


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m 


MUNICIPAL  AND   LOCAL   AID,  210,211. 


I 


11 


site  that  city,  in  thu  state  of  Missouri,  to  a 
point  westwc'  in  Nebraska.  Qut'ncy,  M. 
&*  P.  A'.  Co.  V.  Morris,  84  ///.  410,  16  Am. 
Ky.  Rep.  494. 

Wlien  aid  is  ({iven  by  a  township  for  the 
construction  of  a  railroad  through  the  same, 
the  money  need  not  necessarily  be  expended 
on  that  part  of  tiie  road  within  the  limits  of 
tiie  townsiiip,  but  it  may  be  expended  on 
tiie  road  outside  its  limits.  lirocatv  v. 
Gibson  County  Com'rs,  3  //;;/.    &^  Eng.   R. 

Cas.  573.  73  /«''•  543- 

No  law  of  Missouri,  either  constitutional 
or  statutory,  in  force  in  1871  authorized  tiie 
city  of  Louisiana  in  that  state  to  subscribe 
to  tiie  stock  of  the  Quincy,  Alton  &  St. 
Louis  railroad,  an  Illinois  corporation.  Al- 
len V.  Louisiana,  2  Am.  &•  Eng.  R.  Cas,  599, 
103  U.  S.  80. 

Under  the  New  York  statute  of  May  18, 
1869,  a  county  has  no  autliority  to  issue 
bonds  to  aid  in  the  construction  of  a  rail- 
road where  the  corporation  to  be  aided  has 
no  authority  to  build  a  road  in  the  county. 
It  is  not  enough  tliat  the  corporation  is  or- 
ganized to  build  a  road  in  other  counties, 
and  is  given  tlie  right  to  procure  amend- 
ments  to  its  charter  so  as  to  build  in  the 
county  voting  the  aid.  It  cannot  receive 
such  aid  until  it  has  actually  procured  the 
amendment.  People  ex  rel.  v.  Adirondack 
Co.,  57  Barb.  (,N.  Y.)  656;  affirmed  in  6  Alb. 
L.  J.  174.— Followed  in  Craig  v.  Andes, 
15  Am.  &  Eng.  R.  Cas,  662.  93  N.  Y.  405 ; 
People  ex  rel.  v.  Van  Valkenburgli,  63 
Barb.  105. 

The  city  council  of  Charleston  has  the 
power,  under  its  charter,  to  subscribe  to 
the  stock  of  railroad  companies  within  and 
without  the  state,  and  to  tax  the  inhabitants 
of  the  city  for  the  purpose  of  paying  the 
subscriptions.  State  ex  rel.  v.  Mayor,  etc., 
of  Charleston,  10  Rich.  (So.  Car.)  491.  Ga£-e 
v.  Charleston,  3  So.  Car.  491. 

A  by-law  to  aid  the  North  S.  R.  Co.  by 
a  bonus  of  $100,000,  reciting  that  the  city  of 
Toronto  was  interested  in  securing  a  railroad 
connection  with  the  townships  through 
which  the  line  would  pass,  was  introduced 
on  a  proper  petition  and  read  twice  in  the 
council;  but  on  motion  to  go  into  commit- 
tee on  the  by-law  it  was  resolved,  by  a  vote 
of  fourteen  to  seven,  that  it  would  be  un- 
wise, in  view  of  the  large  increase  of  the 
city  debt,  to  incur  further  liability  to  aid  a 
railroad  totally  disconnected  with  the  city 
and  more  than  sixty  miles  from  it,  and  that 


the  council,  in  the  interest  of  the  citizens, 
felt  it  to  be  their  duty  to  refuse  to  submit  it 
to  the  ratepayers,  //eld,  that  the  council 
sliould  not  be  compelled  to  submit  the  by- 
law ;  and  a  rule  nisi  for  a  mandamus  was 
discharged,  with  costs.  ///  re  Xorth  Simcoe 
R.  Co.,  36  U.  C.  (J.  /i.  io[. 

210.  CoiHimiiyaiitlioi'lztMlto  carry 
on  other  Im^liM'SH.-VVIiere  a  (.orpor.i- 
tif)n  is  organized  with  all  the  usual  powei  s 
of  building  and  operating  a  railroad,  it  is  no 
objection  to  its  reci'ivin<r  inuiiiclpal  sub- 
scription to  its  stock  that  its  charter  au- 
thorizes it  to  carry  on  other  branches  of 
business  also.  A'andolph  County  v,  I'ost,  93 
U.  S.  502. 

A  court  cannot  say  that  an  operating 
railroad  is  less  a  railroad,  or  less  valuable 
to  a  county  through  which  it  passes,  because 
the  company  proposes  to  mine  and  trans- 
port coal,  to  manufacture  and  transport 
flour,  to  carry  on  iron  foundries,  to  dig  or 
buy  raw  materials,  and  to  employ  men  to 
manufacture  them  into  articles  of  use,  than 
if  it  confined  itself  strictly  to  railroad  busi- 
ness. Randolph  County  v.  Post,  93  (/.  S. 
502. 

211.  Coiiiicctiiig:  lilies.— A  railroad 
charter  provided  that  any^ounty  through 
which  the  road  might  run,  "and  every 
county  through  whicli  any  other  railroad 
may  run  with  which  this  road  may  be 
joined,  connected,  or  intersected,"  might  aid 
such  road.  Held,  that  a  road  which  was  char- 
tered to  be  built  through  several  counties 
and  terminating  where  the  first  road  com- 
menced was  within  the  provision  of  the 
statute,  when  the  first  company  undertook 
its  construction,  and  aid  might  be  granted 
accordingly.  Kenicott  v.  Wayne  County 
Sup'rs.  16  Wall.  (I/.  S.)  452,  4  Am.  A'y. 
Rep.  93. 

A  city  ordinance  providing  for  issuing 
bonds  to  a  railroad  contained  a  provision 
that  the  bonds  should  not  be  issued  or  de- 
livered until  the  railroad  should  be  con- 
structed from  a  designated  point  by  a  cer- 
tain route  "to  some  point  of  connection 
with  a  railroad  leading  to  Milwaukee  and 
Chicago,"  on  or  before  a  given  date,  //eld, 
that  the  words  "a  railroad  leading  to  Mil- 
waukee and  Chicago  "  embraced  not  only  a 
railroad  whose  line  reaches  those  cities,  but 
a  railroad  connecting  either  directly  or  in- 
directly with  a  railroad  whose  line  reaches 
those  cities.  State  ex  rel,  v.  //astings,  24 
Minn.  78. 


fti 


WW 

'■v.: 


MUNICIPAL  AND   LOCAL   AID,  212,  21». 


C25 


isioii 

de- 
con- 

cer- 
ection 

and 
Held> 

Mil- 
nly  a 
s,  but 
or  in- 
aches 
mgs,  24 


212.  L«(;iil  iiicoriioratioii  of  cotii- 
paiiy  >i  JiiriNdivtioiial  fact.  —  Umlcr 
New  York  Act  of  May  iS,  1869.  a  county 
judge  cannot  bond  a  town  in  aid  of  a  rail- 
road except  there  be  a  valid,  legal  corpora- 
tion. The  legal  existence  of  ilie  corpora- 
tion is  a  jurisdictional  fact.  J'eopie  ex  rcl. 
V.  Van  Valkenburi^h,  63  liarb.  (A'.  Y.)  105. 
— Following  People  ex  rel, z/.  Adirondack 
Co..  57  Barb.  (N.  Y.)66i. 

A  subscription  to  railroad  stock  ordered 
by  a  county  court  before  the  company's  ar- 
ticles of  association  have  been  filed  with 
the  secretary  of  state  is  void  ;  but  the  rem- 
edy of  a  taxpayer  is  to  stop  the  illegal  sub- 
scription, and  not  an  action  to  recover  back 
a  tax  that  lias  been  levied  and  paid  on  the 
subscription.  Rubey  v.  S/iain,  54  Mo.  207. 
— Distinguished  in  Cass  County  r/.  John- 
ston, 95  U.  S.  360. 

The  Allegheny  Valley  R.  Co.  is  an  exist- 
ing corporation,  capable  of  receiving  sub- 
scriptions from  the  city  of  Pittsburgh,  and, 
of  course,  from  the  county  of  Allegheny. 
Coin,  e.v  rel.  v.  Perkins,  43  Pa.  St.  400. 

21:1.  Or(;aiiizatioii  of  voiiipaiiy  aH 
a  c'OiHlition  precedent.  —  A  railroad 
company  incorporated  under  the  Ala.  act 
entitled  "An  act  to  provide  for  the  creation 
and  reguliition  of  railroad  companies  in  the 
state  of  Alabama,"  approved  Dec.  29,  1868 
(Pamph.  Acts,  p.  462),  is  not  in  acondiiion  to 
make  a  proposition  for  county  subscriptions 
to  the  capital  stock  of  said  company  until 
ten  per  cent,  of  its  capital  stock  has  been 
subscribed,  and  a  board  of  directors  elected 
by  the  stockholders,  and  qualified,  as  pro- 
vided by  the  ninth  section  of  said  act. 
Trammell  v.  Pennington,  45  Ala.  673. 

A  proposition  made  by  the  original  cor- 
porators named  in  the  certificate  f)f  incor- 
poration of  such  company,  and  nof  by  the 
president  and  directors  of  said  company 
elected  and  qualified  as  aforesaid,  is  not  a 
proposition  made  in  substantial  compliance 
with  the  first  section  of  the  act  entitled  "  An 
act  to  authorize  the  several  counties  and 
towns  and  cities  of  the  state  of  Alabama  to 
subscribe  to  the  capital  stock  of  such  rail- 
roads throughout  the  state  as  they  may 
consider  most  conducive  to  their  respective 
interests,"  approved  December  31,  1868 
(Pamph.  Acts,  p.  514).  And  such  a  propo- 
sition so  made  does  not  confer  on  the 
commissioners'  court  of  a  county  any  juris- 
diction or  authority  to  order  an  election 
for  such  proposition  to  the  qualified  electors 
6  D.  R.  D— 40 


of  said  county,  for  their  acceptance  or  re- 
jection.    Trainntill  v.  Pennington,  45  Ala. 

673- 

An  order  made  on  such  proposition    is 

voifi,  and  an  election  held  under  such  an 
order  is  invalid,  and  gives  to  the  commis- 
sioners' court  no  authority  to  make,  in  be- 
half of  said  county,  a  subscription  to  the 
capital  stock  of  the  railroad  compiiny  by 
whom  such  proposition  is  made,  nor  to  de- 
liver and  issue  to  such  railroad  company, 
in  payment  of  such  subscription,  the  "  bonds 
of  the  county,"  as  provifled  by  the  sixth 
section  of  said  act  of  December  31,  kS68. 
Trammell  v.  Pennington,  45  ///if.  673. 

Where  the  judge  of  probate  and  two  of 
the  commissioners  of  a  county  meet  at  the 
court  house  without  the  notice  required  by 
section  830  of  the  Revised  Code,  and  call 
such  meeting  together  as  a  special  term  of 
tlie  commissioners'  court,  and  make  an 
order  to  submit  a  proposition  of  a  railroad 
company,  for  a  subscription  by  said  county 
10  the  capital  slock  of  said  company,  to 
the  qualified  electors  of  said  county,  for 
their  acceptance  or  rejection,  such  an  order 
is  made  without  jurisdiction,  is  coram  non 
judice  and  void,  and  an  election  under 
such  an  order  is  invalid,  and  confers  on  the 
commissioners'  court  no  authority  to  sul)- 
scribe  to  the  capital  stock  of  said  company, 
or  to  issue  the  bonds  of  the  county  in  pay- 
ment of  stock  so  subscribed.  Trammell  v. 
Pennington,  45  Ala.  673, 

A  proposition  made  by  the  original  cor- 
porators of  a  railroad  company,  and  not  by 
the  president  and  directors,  and  an  order 
made  by  the  judge  of  probate  and  two  of 
the  commissioners,  etc.,  as  aforesaid,  and 
an  election  held  under  such  an  order,  arr 
not  "acts  and  things  done  and  performed 
insubstantial  compliance"  with  the  provi- 
sions of  the  said  act  of  Dec.  31,  1868  ;  and 
therefore  are  not  legalized,  ratified,  and 
confirmed  by  the  act  entitled  "  An  act  to 
legalize,  ratify,  and  confirm  all  acts  and 
things,  of  every  kind,  heretofore  done  and 
performed  in  this  state,  in  substantial  com- 
pliance with  an  act  of  the  general  assembly 
of  Alabama  entitled  'An  act  to  authorize 
the  several  towns  and  counties  and  cities  of 
the  state  of  Alabama  to  subscribe  to  the 
capital  stock  of  such  railroads  throughout 
the  state  as  they  may  consider  conducive 
to  their  respective  interests,' "  approved 
March  i,  1870  (Pamph.  Acts  1869-70,  p. 
286).     The  said  act  of  March  i,  1870,  as  it 


i^ff>i;>4i 


«3fl 


MUNICIPAL   AND   LOCAL   AID,  214-210. 


only  Ic'i^alizcs,  ratifies,  and  cotifirnis  "  acts 
atiil  tliiiii^s"  (lone  and  performed  in  sub- 
lanlial  compliance  with  the  said  act  of  Dec. 
31.  r8^j8,  is  not  imconstittitional  and  void. 
'Iraiinnill  \\  J'i-ii>iin^ton,  45  A/,i.  673. 

214.  I<]tl<><'t  of  usNitriiiiH'iit  of  ronil 
or  fraii(*liiH(>N.-  \  company  appointed  u 
committee  to  take  cliarge  of  the  construc- 
tion of  a  branch  road,  and  to  solicit  sub- 
scriptions thereto.  Subsequently  tlic  com- 
pany assi)j;ncd  a  portion  of  its  franchise  to 
another  company.  Held,  that  such  assign- 
ment would  not  invalidate  a  subscription 
made  thereto.  Cass  County  v.  Gillett,  100 
U.  S.  585. 

A  county  voted  a  subscription  to  a  rail- 
road, imposing  the  conditions  that  the  road 
should  be  completed  and  operated  in  the 
county  "  by  lease  or  otherwise,"  and  that 
the  conditions  imposed  should  be  taken  as 
a  covenant  binding  upon  the  company, 
"its  lessees  or  assigns."  Held,  that  the 
right  to  lease  or  assign  the  road  must  have 
been  contemplated,  and  a  subsequent  agree- 
ment to  sell  the  road  after  it  was  completed, 
in  order  to  obtain  money  for  its  construc- 
tion, did  not  discharge  the  county  from 
payment  of  its  subscription.  Southern  Kan. 
&•  P.  A'.  Co.  V.  Tojoner,  41  A'</«.  72,  21  J'ac. 
Rep.  221. 

An  agreement  between  two  railroad  com- 
panies whereby  the  former  agreed  to  "  sell, 
transfer,  and  assign  "  to  the  latter,  among 
other  things,  "all  gifts,  donations,  bounties, 
or  aid,  in  any  form  or  shape,  which  have 
been  or  may  liereafter  be  made  or  given  by 
any  person,  corporation,  municipality,  or 
state  to  aid  in  the  construction  of  said 
railway,"  is  sufficient  to  comprehend  the 
right  of  the  former  to  avail  itself  of  a  stand- 
ing offer  made  to  it  by  a  city  of  bonds  to 
aid  in  the  construction  of  the  railway, 
which  were  to  be  delivered  upon  the  per- 
formance of  certain  conditions,  none  of 
which  had  been  performed  at  the  time  of 
the  transfer  and  assignment.  State  ex  rel. 
■v.  Mastitis,  24  Minn.  78.  —  Approved  in 
Missouri  Pac.  R.  Co.  v.  Tygard,  84  Mo. 
263,  54  Am.  Rep.  97. 

An  agent  representing  a  company  to 
which  bonds  of  a  city  had  been  voted  de- 
manded the  same,  and,  the  matter  being 
brought  before  the  council,  the  mayor  was 
instructed  to  notify  the  agent  that  the 
council  declined  to  issue  the  bonds.  In 
transmitting  this  information  the  mayor 
wrote  that  the  council  instructed   him    to 


say  that"  the  city  should  decline  to  issue 
the  bonds,  claiming  that  all  questions  had 
not  been  decided  by  llie  sujireme  court," 
referring  to  certain  litigation  regarding  the 
bonds.  //<•/(/.  that  this  amounted  to  a 
waiver  of  any  other  objection  as  to  the 
sufficiency  of  the  demand.  State  ex  rel.  v. 
Jlastin^s,  24  Minn.  78. 

When'  the  evidence  shows  that  town 
authorities,  tlitr  railroad  company,  and  the 
people  who  voted  bonds  to  the  company 
all  understood  that  the  road  might  be  built 
by  an  assignee  of  the  company,  and  the 
original  contract  between  the  town  and  the 
company  provides  that  the  aid  should  be 
given  to  that  one  of  two  companies  which 
should,  "by  itself  or  its  assignee,"  first 
complete  the  road,  the  right  of  the  com- 
pany to  the  bonds  is  not  afTected  by  the  fact 
that  the  road  was  built  by  another  company. 
Lynch  v.  Eastern,  L.  F.  &^  M.  A'.  Co.,  12 
/1»i.  &*  Enf;.  A'.  6VU.652,  57  IVis.  430.  I5;V. 

IV.  A\/>.  743.  825. 

215.  Iloiul  to  -bo  ni«lc<l  iiiiiHt  l>u 
iiiuimmI.  — Under  the  act  of  1866,  an  exist- 
ing corporation  must  be  named  as  the  re- 
cipient of  the  proposed  subscription  and 
bonds,  and  a  submission  of  the  question  of 
issuing  bonds  "  to  any  corporation  now  or- 
ganized or  that  may  hereafter  be  organized  " 
that  shall  construct  a  certain  line  of  road 
is  unauthorized  and  void.  Litvis  v.  Hour- 
ion  County  Com'rs,  12  A'an.  186.— Fol- 
lowed IN  Missouri  River,  Ft.  S.  &  G.  R. 
Co.  V.  Miami  County  Com'rs,  12  Kan.  21" 

One  railroad  company  cannot  accept 
scriptions  or  receive  bonds  issued  for 
benefit  of  another  railroad  company,     li  ,,/ 

V.  Greene  County,  69  Mo.  281.— Following 
State  ex  rel.  v.  Garroutte,  67  Mo.  445. 

Where  the  line  to  which  aid  was  author- 
ized to  be  extended  by  the  constitution  was 
part  of  a  state  system,  having  its  several 
termini  at  points  within  the  state,  a  line  of 
railway  embracing  a  part  of  the  system,  but 
having  one  of  its  terminal  points  on  the 
boundary  line  of  another  state,  looking  to  a 
connection  with  the  ports  of  another  state, 
is  a  line  of  railway  essentially  and  funda- 
mentally differing  from  the  line  to  which 
aid  was  authorized  to  be  extended.  Hol- 
land v.  State,  i^Fla.  455. 

21G.  Roads  already  built.— Town- 
ships have  no  right  to  vote  aid  to  railroads 
already  constructed.  Brocaw  v.  Gibson 
County  Com'rs,  3  Am,  6-  Eng.  K.  Cas.  573, 
73  Ind.  543- 


MUNICIPAL  AND   LOCAL  AID,  iS17-221. 


C27 


The  authority  to  make  such  subscriinion 
ceases  as  soon  as  the  ro.ifl  is  complctud 
through  the  to\vnshi|>,  iliou^jh  the  people 
had  voted  to  subscribe  before  tlie  road  was 
built.  State  ix  rrl.  v.  Hatts  County  Conrt, 
57  .)/().  70.— FoM.oWKi)  IN  Cass  County  JA 
Johnston,  95  U.  S,  360. 

t2l7.  Coni|iaiiivM  iiicor|u»nit(>il  ul- 
t«'r  aiitlKirity  K»'>*"t«<l»— ^^  '"^'"'^  •'  '*'^'"^- 
utc  authorizes  municipal  aid  to  a  certain 
railroad,  and  to  "  any  other  railroad  com- 
pany duly  incorporated  and  or>,'anized  for 
llif  purpose  of  constructing  railroads,"  both 
the  company  then  in  existence  and  such  as 
might  be  thereafter  duly  incorporated  and 
organized  were  included,  James  v.  il//7- 
"uuiidee,  i6  Wall.  (U.  S.)  159.  Steblu'iis  v, 
I'liebUt  County  Coin'rs,  2  McCrary  (U.  S.) 
196,  4  /•"('(/.  h'ep.  282, 

Under  Mass.  St.  1870,  ch.  325,  §  3,  a  town 
within  the  limits  therein  prescribed  may 
subscribe  for  the  stock  of  a  railroad  cor- 
poration to  be  organized  under  St.  1872, 
cli.  53,  and  become  an  associate  in  its  for- 
mation. Kittredge  v.  North  Urookfield,  138 
M    s.  286. 

218.  NvKl«(;tto  build  a  portion  of 
ilue.— It  appeared  that  the  Montpelier  & 
St.  Johnsbury  R.  Co.  abandoned  the  build- 
ing of  a  part  of  the  line  of  road  included  in 
its  charter,  having  built  only  that  part  lying 
between  St,  Johnsbury  and  West  Danville, 
hut  it  did  not  appear  but  that  the  bonds 
trom  which  the  coupons  in  question  were 
taken  had  been  already  issued.  The  Essex 
County  R.  Co.  was  authorized  to  build  a 
road  from  the  Connecticut  river  to  St.  Johns- 
bury, one  of  the  termini  of  the  former  road. 
Held,  that  as  none  of  that  enterprise  to 
which  aid  was  subscribed  had  been  aban- 
doned, and  as  there  was  no  condition  in  the 
siibscrip  )n  that  the  Montpelier  &  St, 
Johnsbniy  railroad  should  be  built,  the 
subscription  was  not  avoided  by  such  aban> 
domuent.     First  Nat.  Bank  v.  Concord,  50 

i't.  257. 

2 It).  ('Iiaiif^e  of  route.— An  amend- 
ment t'  the  charter  of  a  railroad  changing 
the  route  will  not  extinguish  the  power 
granted  by  the  original  charter  to  certain 
counties  to  subscribe  to  its  stock.  Benton 
County  v,  Kollens,  26  Law.  Ed.  {U.  i\ )  2 1 3.  — 
Following  Scotland  County  v.  Thomas, 
94  U.  S,  682 ;  Schuyler  County  v.  Thomas, 
98  U.  S,  169. 

220.  Municipality  may  select  com- 
pany to  be  aided.— Under  the  act  of 


April  2S,  1857,  authorizing  the  supervisors 
of  Yuba  county  to  take  slock  in  a  railroad 
company,  the  stock  may  be  taken  in  any 
railroad  by  which  a  connection  shall  be 
formed  between  Marysville  and  Henicia,  or 
any  point  on  the  Sacramento  river,  at  or 
near  Knight's  Ferry.  The  company  in  which 
the  stock  is  taken  need  not  be  constituted 
for  the  express  and  only  purpose  of  such 
connection,  provided  the  ellect  of  the  work 
is  to  make  the  connection.  J'attison  v. 
Yuba  County  .Sufi'rs,  13  Cat.  175. 

Where  the  only  object  of  the  electors  of 
a  town  in  granting  aid  to  a  railway  company 
is  to  procure  the  construe  lion  of  a  railway 
from  a  certain  point  to  such  town,  the  ques- 
tion may  be  submitted  to  them  in  such  a 
form  as  to  provide  that  the  aid  shall  be 
given  to  that  one  of  two  companies  which 
shall  first  complete  its  road  between  such 
points.  Lynch  v.  Eastern,  L.  F.  &*  M.  K. 
Co.,  12  Atn.  Sf  F.ng.  K.  Cas.  652,  57  His.  430, 
iSiV.  H^.A'e/>.  743.825. 

Where  a  contract  for  the  issuance  of  bonds 
in  aid  of  a  railway  company  did  not  limit 
the  time  within  which  the  road  should  be 
completed,  and  no  notice  is  given  by  the 
town  that  unless  it  be  completed  within  a  rc.t- 
sonable  time  the  aid  would  not  be  furnished, 
the  company  does  not  lose  its  rights  under 
the  contract  by  lapse  of  time,  or  by  the 
statute  of  limitations.  Lynch  v.  Eastern, 
L.  F.  <Sm  M.  1\.  Co.,  12  Am.  <&*  Etig.  A'.  Cas. 
652,  57  IVis.  430,  15  A^.  ;r.  A'e/>.  743,  825. 

It  was  urged  that  an  order  for  an  election  to 
vote  municipal  aid  to  a  railroad  was  invalid 
because  no  corporation  was  named  as  the 
proposed  recipient  of  the  subscription. 
Held,  that  it  is  sufficient  if  the  route  is  des- 
ignated, leaving  it  to  the  county  authori- 
ties to  select  the  particular  corporation  to 
receive  the  subscription.  A'nox  County  v. 
Ninth  Nat.  Bank,  147  U.S.^x,  \iSup.  Ct. 
Rep.  267, 

221.  Company  to  wliicli  aid  was 
first  voted. — When  the  board  of  county 
commissioners  is  authorized  by  a  favorable 
vote  of  the  electors  of  a  township  to  sub- 
scribe on  behalf  of  said  township  in  the  full 
amount  that  the  township  is  authorized  by 
law  to  subscribe  to  the  capital  stock  of  a 
railroad  company  that  purposes  to  build  its 
line  through  said  township,  on  the  terms 
and  conditions  prescribed  in  the  vote,  and  a 
subscription  is  duly  made  and  accepted  in 
writing  by  the  railroad  company,  the  sub- 
scription aad  its  acceptance  create  a  con- 


628 


MUNICIPAL   AND   LOCAL   AID,  3143-224. 


i!| 


tract  binding  on  the  township;  and  wiien 
the  railroad  company  performs  all  the  terms 
and  conditions,  it  is  entitled  to  the  bonds 
of  tlie  township  in  preference  to  another 
railroad  to  whose  capital  stock  a  subsequent 
subscription  was  made,  but  which  first  com- 
[)lied  with  the  terms  and  conditions  of  such 
subsequent  subscription.  Chicago,  K.  Sf^ 
If.  A'.  Co.  V.  Osdjfe  County  Com'rs,  38  Kan. 
597,  16  Pac.  Kep.  828. 

333.  Fur  coiiMtriictloii  of  bniiich 
routl. — The  vote  of  a  subscription  and  the 
issuance  of  corporate  bonds  to  a  particular 
and  short  division  of  a  railroad  will  not  con- 
fer any  authority  to  issue  bonds  in  aid  of 
the  construction  of  the  entire  line  of  the 
road,  and  payable  to  the  company  represent- 
ing the  whole  of  the  proposed  road.  Big 
Grove  v.  Wells,  65  ///.  263. 

Under  the  Mo.  Act  of  March  21,  1868, 
entitled  "  An  act  to  aid  in  the  building  of 
branch  railroads,"  township  bonds  voted  to 
the  "  Pacific  Railroad,"  but  issued  10  the 
"  Pleasant  Hill  and  Lawrence  Branch  of  the 
Pacific  Railroad,"  are  valid,  it  appearing 
that  the  latter  is  a  branch  of  the  former. 
Cass  County  v.  Jordan,  95  U.  S.  373. 

333.  ]>ivi8loii  of  roart.  — Where  a 
company  is  chartered  to  build  a  road  of  con- 
siderable length,  but  subsequently  the  legis- 
lature divides  it  into  three  parts  or  divisions, 
creating  each  a  new  corporation,  a  previous 
vote  by  a  county  to  issue  bonds  to  the  orig- 
inal company  will  not  authorize  the  issuing 
of  them  to  one  of  the  divisions  or  new  cor- 
porations. Afarsh  v.  Fulton  County,  10 
Wa/l.  (U.  5.) .676.— Followed  in  Kelley  v. 
Milan,  127  U.  S.  139.  Reviewed  in  State 
ex  rel.  V.  Garroutte,  67  Mo.  445. 

X.  CONDITIONAL  BUBBCBIPTIONS. 

234.  In  ffeneral.*— Where  a  paper  is 
circulated  among  electors,  with  the  consent 
of  a  majority  of  the  directors  of  a  railway 
company  for  which  a  tax  is  about  to  be 
voted,  with  the  corporate  seal  attached,  and 
signed  by  the  president,  the  conditions  in 
such  paper  are  binding  on  the  company. 
Meeker  v.  Ashley,  56  Iowa  188, 9  A^.  W.  Rep. 
124. 

Where  a  county  subscription  is  made  to 
railroad  stock  with  certain  conditions  at- 
tached, any  citizen  and  taxpayer  of  the 
county  may  maintain  a  suit  for  an  injunc- 

*  Conditional  subscriptions  to  stock  of  railroad 
mmpanies,  see  note,  44  Am.  &  Eng.  R.  Cas.  256. 


tion  to  prevent  the  company  from  receiving 
the  bonds  before  it  has  complied  with  the 
conditions  imposed,  and  to  compel  a  sur- 
render and  cancellation  of  any  that  may 
have  been  issued.  Wagner  v.  Meety,  69 
Mo.  150. 

To  a  complaint  by  an  assignee  of  a  sub- 
scription to  payor  donate  noney  toaid  in 
the  construction  of  a  railroad,  the  money  to 
be  paid  on  certain  conditions,  an  answer  al- 
leging that  the  assignor  of  the  suhscrii)tion 
refused  and  declined  to  accept  it  or  act  on 
it,  and  publicly  abandoned  the  enterprise,  is 
good.     Smith  v.  Davidson,  45  Ind.  396. 

The  courts  will  not  engraft  a  condition 
upon  a  contract  in  contravention  of  the  ex- 
pressed intention  of  the  parties  (suit  upon 
railroad  subsidy  notes  made  payable  as  the 
work  progressed),  and  t  .^  court  below 
erred  in  holding  that  the  failure  of  the  rail- 
road company  to  maintain  its  depot  as  origi- 
nally located  worked  a  forfeiture  of  the  right 
of  recovery  upon  the  note  sued  upon.  \\  'ill- 
iams  V.  Ft.  Worth  «S-  A'.  O.  R.  Co.,  82  Tex. 
553.  18  S.  W.  Rep.  206. 

Plaintiff  executed  its  negotiable  coupon 
bonds,  which,  by  their  terms,  bore  interest  at 
the  rate  of  six  per  cent.,  and  deposited  them 
in  escrow,  to  be  delivered  to  the  defendant 
only  upon  the  performance  of  certain  condi- 
tions. Defenf^ant  wrongfully  got  possession 
of  the  bonds  '-.thout  having  performed  the 
conditions,  and  sold  them.  Held,  that  the 
measure  of  plaintiff's  damages  (the  bonds 
still  outstanding)  was  the  amount  of  the 
bonds  at  the  time  of  the  recovery,  interest 
being  computed  at  six  per  cent.,  upon  the 
principal  of  the  bonds  to  the  date  of  judg- 
ment, and  also  upon  coupons  maturing  be- 
fore the  judgment  at  the  legal  rate  of  seven 
percent,  from  their  maturity  until  judgment. 
Winona  v.  Minnesota  R.  Constr.  Co.,  29 
Minn.  68,  1 1  N.   W.  Rep.  228. 

A  town  voted  to  subscribe  to  railroad 
stock  and  to  issue  its  bonds  in  payment, 
upon  certain  specified  conditions,  and  the 
court  appointed  three  commissioners  to 
make  the  subscription,  two  of  which  acted 
and  made  the  subscription  absolute  in 
form,  but  upon  the  belief,  induced  by  repre- 
sentations of  the  company,  that  they  could 
not  be  compelled  to  deliver  the  bonds  until 
an  agreement  was  entered  into,  as  author- 
ized by  N.  Y.  Act  of  1870,  ch.  507.  The 
company  never  performed  the  conditions 
imposed.  Held,  that  making  the  subscript 
tion  without  the  conditions  annexed  did  not 


MUNICIPAL   AND   LOCAL   AID,  225, 226. 


629 


'I'X. 


esiop  the  commissioners  from  objecting  or 
que.  ..loning  the  use  to  be  made  of  the  pro- 
ceeds, and  from  denying  the  right  of  the 
company  to  demand  an  absolute  delivery; 
therefore  the  company  was  not  entitled  to  a 
mandamus  to  compel  their  delive;y.  Peo- 
pie  ex  rel.  v.  Hitchcock,  2T.&'  C.  {N.  Y.)  134. 

It  was  objected  tliat  a  statute  was  invalid 
for  the  reason  that  it  attempted  to  author- 
ize any  town  or  incorporated  village,  whether 
immediately  on  tlie  line  of  a  railroad  or  not, 
to  subscribe  for  and  take  stock  in  the  com- 
pany. Held,  that  the  objection  could  not 
be  raised  by  taxpayers  of  a  town  whicli  had 
subscribed,  where  boiii  the  charter  of  the 
company  and  the  conditions  imposed  in 
making  the  subscription  required  that  the 
road  should  run  through  the  town.  Law- 
son  V.  Milwaukee  &'  A'.  A'.  Co.,  30  M'is. 
597,  7  Aiu.  Ky.  Rep.  270.  —  Following 
Clark  V.  Janesville,  10  Wis.  136;  Bushnell 
V.  Beloit,  10  Wis.  196.  Quoting  Phillips  z/. 
Albany,  28  Wis.  340. 

225.  Cuiiditioiis  imposed  by  stat- 
ute.—Under  the  111.  Act  of  Feb.,  1855,  in- 
corporating the  Mount  Vernon  R.  Co.,  it 
was  not  required  that  the  road  be  actually 
built  to  authorize  counties  to  vote  aid  to  it. 
Kenicott  v.  Wayne  County  Sup'rs,  16  Wall. 
(U.  S.)  452.  4  Am.  Ay.  Rep.  93, 

A  proviso  in  a  statute  authorizing  a  mu- 
nicipal subscription  to  a  railroad  that  the 
bonds  shall  not  be  delivered  until  an  amount 
of  work  shall  have  been  done  on  the  railroad 
in  the  town  equal  in  value  to  the  amount  of 
the  bonds,  will  be  construed,  not  as  referring 
to  earthwork  alone  but  will  embrace  all 
that  enters  into  the  construction  of  the  road- 
bed complete  for  the  cars.  Illinois  Mid- 
land R.  Co.  V.  Harnett  Sup'rs,  85  /A'.  313. 

Ind.  Rev.  St.  of  1881,  §  4062,  providing 
for  an  absolute  forfeiture  of  a  municipal 
subscription  or  donation  to  a  company  un- 
less its  road  was  completed  within  three 
years,  is  repealed  by  the  act  of  1873,  as 
amended  in  1875,  and  carried  into  Rev.  St. 
of  1881,  §  4069,  authorizing  the  county  com- 
missioners to  cancel  such  subscription,  if 
the  company  has  not  expended  on  its  road 
wiihin  five  years  an  amount  equal  to  the 
tax.    Sellers  v.  Beaver,  97  Ind.  in. 

Under  N.  Y.  Act  of  1866,  ch.  398,  entitled 
"  An  act  to  facilitate  the  construction  of  the 
New  York  &  Oswego  Midland  railroad,  and 
to  authorize  towns  to  subscribe  to  the  capi- 
tal stock  thereof,"  and  which  specially  au- 
thorizes the  directors  to  construct  branches 


through  certain  counties  when,  in  the  judg- 
ment of  the  directors,  the  same  shall  be  for 
the  interest  of  the  company,  to  sustain  the 
jurisdiction  of  a  town  to  issue  bonds  it  must 
appear  that  the  directors  had  established  a 
branch  through  the  county  before  the  bonds 
were  issued.  People  ex  rel.  v.  Morgan,  55 
N.  V.  587  ;  reversirg  65  Batb.  473,  i  7".  Sr* 
C.  loi. — Ahplieu  in  Thomas  7/.  Lansing,  14 
Fed.  Rep.  618.21  Blatchf.  (V.  S.)  119.  Fol- 
lowed IN  Purdy  7>.  Lanj.u(,  128  U.  S.  557. 

22U.  Kit^lit  of  miiiiiir  pality  to  im- 
pose conditions. — (i)  In  ge/ieral.— Au- 
thority to  a  municipal  corporation  to  sub- 
scribe to  stock  in  a  railroad  includes  author- 
ity to  make  the  subscription  conditional. 
Jacks  v.  Helena,  41  Ark.  213.  Brocaw  v. 
Gibson  County  Com'rs,  3  Am,  &*  Ettg.R.  Cas. 
573.  73  li"i-  543.— Quoting  Bittinger  v. 
Bell,  6$  Ind.  445. 

And  the  supervisors  would  have  no  power 
in  making  the  subscription  to  disregard 
such  conditions,  nor  would  the  company 
have  any  right  to  demand  that  they  should. 
People  ex  rel.  v.  Dutcher,  56  ///.  144,  4  Am. 
Ky.  Rep  .103.— APPROVED  IN  People  ex  rel. 
V.  Cass  County,  ^]^  III.  438.  Distinguished 
IN  Oregon  z/.  Jennings,  119U.  S.  74. — Riche- 
son  v.  People  ex  rel.,  1 1 5  ///.  450.  5  A'.  E, 
Rep.  121. 

The  constitution  of  1870  prohibits  munici- 
pal corporations  from  making  subscriptions 
or  donations  to  any  railroad  or  private  cor- 
poration except  when  authorized  under 
prior  laws  by  a  vote  of  the  people,  and  when 
so  authorized  the  subscription  must  be  in 
accordance  with  the  conditions  upon  which 
it  was  voted.  After  the  adoption  of  the 
constitution  the  conditions  upon  which  such 
a  subscription  was  voted  cannot  be  changed, 
and  a  subscription  made  upon  other  and 
different  conditions.  Richeson  v;  People  ex 
rel.,  115  ///.  450,  5  N.  E.  Rep.  121. 

Although  the  law  authorizing  a  municipal 
subscription  to  a  railway  may  be  silent  on 
the  subject,  yet  the  municipality  may  impose 
conditions  upon  which  the  subscription  is 
to  depend,  and  until  such  conditions  are 
complied  with  the  courts  will  not  compel 
the  issuing  and  delivery  of  the  bonds  by 
mandamus.  People  ex  rel.  v.  Glann,  70  ///. 
232. 

An  arrangement  entered  into  by  a  town 
supervisor  with  a  railroad  by  which  he  is- 
sued one  half  of  the  amount  of  b  )nds  voted 
for  upon  assurances  of  the  completion  of 
the  road,  and  withheld  the  remainder  until 


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MUNICIPAL   AND    LOCAL   AID,  226. 


the  road  was  completed,  is  fully  within  his 
power,  and  does  not  release  that  portion  of 
a  town  which  has  been  set  apart  and  created 
a  new  township  from  any  portion  of  its 
liability  upon  the  bonds.  Hensley  Tp.  v. 
People  ex  rel.,  84  ///.  544. 

Under  N.  Y.  Act  of  1870,  ch.  507,  as 
amended  in  1871,  ch.  925,  commissioners 
appointed  by  a  county  judge  to  subscribe 
for  railroad  stock,  and  to  issue  the  bonds  of 
a  town  in  payment,  have  no  authority  to 
require  the  road,  or  anyone  acting  for  it,  to 
enter  into  an  a^'reement  that  the  road  shall 
be  finislied  through  the  town,  and,  if  not, 
that  the  bonds  shall  be  delivered  up  and  the 
town  saved  harmless ;  and  such  a  contract 
is  void  and  incapable  of  enforcement. 
Wayne  v.  Sherwood,  14  Hun  (N.  V.)  423, 
affnmed  in  76  A'.    Y.  599,  mem. 

(2)  Itluxtrations. — Conditions  annexed  to 
the  proposition  to  subscribe  for  $400,000 
stock  in  the  Cumberland  &  Ohio  R.  Co., 
submitted  to  and  voted  by  a  majority  of  the 
qualified  voters  of  a  county,  were  as  fol- 
lows, to  wit :  First,  that  the  road  should 
pass  through  or  within  six  hundred  yards 
of  the  corporate  limits  of  Shelbyville.  Sec- 
ond, that  the  subscription  should  not  be 
made  until  it  should  be  made  clearly  to  ap- 
pear to  the  county  court  that  said  company 
had  secured  a  bona  fide  subscription  to  its 
capital  stock  sufficient  with  that  to  procure 
the  right  of  way,  grade,  and  execute  the 
masonry  of  the  road  from  its  northern  ter- 
minus to  the  Tennessee  line.  Third,  that 
the  stock  taken  by  Shelby  county  should, 
as  far  as  necessary,  be  used  in  that  county 
in  procuring  the  right  of  way,  in  grading, 
and  the  necessary  masonry  for  the  roadbed. 
Fourth,  that  before  said  subscription  should 
be  made  by  the  county  court,  or  the  bonds 
delivered  in  payment  thereof,  the  president 
and  directors  of  said  company  should  by  an 
order  of  its  board  direct  the  county  court 
to  issue  and  deliver  one  hundred  thou- 
sand dollars  of  said  bonds  to  the  Shelby 
County  railroad,  to  be  used  in  Shelby 
county  in  extending  the  Shelby  railroad 
east  of  Shelbyville.  In  a  proceeding  to 
compel  the  Shelby  county  court  by  man- 
damus to  issue  bonds  in  pursuance  of  the 
popular  vote  of  said  county  on  the  con- 
ditions set  forth  in  the  submission — held, 
if  it  be  true  that  t'le  adoption  of  either  of 
said  four  conditions,  which  were  mainly 
intended  as  safeguards,  could  prejudicially 
affect  the  rights  of  any  citizen   of  Shelby 


county,  they  were  nevertheless  legal  and 
authorized  by  the  charter  unless  rendered 
illegal  by  some  other  cause  than  that  now 
under  consideration ;  and  especially  so  as 
the  conditions  are  consistent  with  the  gen- 
eral object  and  purposes  of  the  corporation, 
and  not  expressly  or  impliedly  inconsistent 
with  any  of  the  provisions  of  its  charter. 
The  proposition  under  the  fourth  condition 
above  was  not  a  double  proposition  for  a 
subscription  by  the  county  for  stock  in  each 
of  the  two  railroads,  but  for  a  single  sub- 
scription of  four  hundred  thousand  dollars 
stock  in  the  Cumberland  &  Ohio  R.  Co. 
Its  acceptance  involved  a  pledge  to  invest 
one  hundred  thousand  dollars  of  it  in  stock 
in  the  Shelby  railroad,  which  it  was  author- 
ized to  do  under  its  charter  independent  of 
said  condition.  Shelby  County  Court  v. 
Cumberland  &•  O.  A\  Co. .  8  Hus/t  (Ay.)  209. 

Where  a  township  through  which  a  rail- 
road might  be  located  was  by  a  statute 
"  authorized  to  subscrib'^  to  the  stock  of 
said  railroad  "—held,  that  while,  under  such 
an  authority,  the  contract  of  subscription 
might  contain  terms  and  conditions  affect- 
ing its  subject-matter,  and  the  consideration 
to  be  paid  and  received,  the  making  a  sub- 
scription and  paying  money  for  stock  could 
not  be  made  a  consideration  to  sustain  a 
contract  giving  the  township  a  claim  to 
control  the  general  conduct  and  discretion 
of  the  directors  of  the  railroad  company  in 
matters  involving  the  pecuniary  interests 
of  the  company  and  its  stockholders  to  an 
amount  far  exceeding  the  subscription  of 
the  township.  It  was  not  the  intention  of 
the  legislature  to  authorize  the  township  to 
obtain  by  its  contract  such  a  claim,  or  the 
directors  of  the  compi.ny  for  the  time  being 
so  to  limit  the  power  and  discretion  of  fu- 
ture boards  of  directors.  Port  Clinton  A'. 
Co.  v.  Cleveland  6-  7'.  A\  Co.,  13  Ohio  St. 
544- 

Where  two  railroad  companies  in  their 
agreement  for  consolidation  inserted  an  arti- 
cle to  provide  for  the  completion  and  run- 
ning of  the  route  of  one  of  the  companies, 
and  the  directors  of  the  consolidated  com- 
pany failed  to  comply  with  such  provisions — 
//f/(/,  that,  if  the  duty  thus  created  was  owing 
to  all  the  stockholders,  one  of  the  stockhoM- 
ers  could  not  sustain  an  action  against  the 
directors  to  enforce  a  compliance  therewith  ; 
and  that,  if  the  duty  was  owing  to  a  class  of 
stockholders,  having  in  respect  to  the  mat- 
ter an  interest  or  right  distinct  from  another 


MUNICIPAL   AND   LOCAL   AID,  227, 228. 


631 


class,  any  proceeding  to  oht.iin  relief,  for  .i 
refusal  or  neglect  on  the  part  oi  tlic  direc- 
tors to  discharge  the  duty,  must  iirinj;  before 
the  court  not  only  the  directors  of  the  com- 
pany, but  the  two  classes  of  stockholders. 
Port  Clinton  A\  Co.  v.  Clevflami  &^  T.  K. 
Co.,  13  0/iio  St.  544. 

227.  CoiHlitions  precedent.— Where 
a  municipal  subscription  to  railroad  stock 
is  made  on  condition  that  tlie  road  be  lo- 
cated through  a  certain  town  "  satisfactory 
to  the  selectmen  of  said  town,"  such  location 
is  a  condition  precedent  to  the  right  to  re- 
cover against  ilie  town  on  the  subscription. 
It  is  not  enough  for  tlie  company  to  allege 
and  prove  that  liie  road  was  "  wisely,  pru- 
dently, and  judiciously"  located.  It  must 
appear  that  the  location  was  satisfacto'/  to 
the  selectmen.  Bucksport  &•  li.  R.  Co.  v. 
Brewer,  67  Me.  295,  16  Am.  /i>.  Rep.  344. 

Railroad  aid  bonds  were  voted  by  a  town- 
ship with  a  condition  precedent  to  their 
delivery  that  the  road  should  not  only  be 
in  running  order,  but  an  equivalent  amount 
of  the  company's  stock  should  be  delivered 
to  the  township  treasurer,  but  before  this 
was  done  a  new  township  was  set  off  from 
the  one  which  voted  the  bonds.  Held,  that 
until  this  exchange  there  was  no  contract 
relation  with  the  company,  and  that  even 
if  the  bonds  had  been  valid  a  judgment 
against  the  old  township  for  tin  amount 
could  not  bind  the  new  township.  Pierson 
Tp.  V.  Reynolds  Tp.  Board,  49  Mich.  224,  13 
N.  IV.  Rep.  525. 

The  vote  by  which  city  bonds  were  to 
be  issued  in  aid  of  a  railroad  provided  that 
the  bonds  were  to  be  delivered  to  certain 
commissioners  in  escrow,  to  be  by  them 
delivered  to  the  railroad  only  if  the  road 
be  completed  by  a  certain  date.  Held,  that 
the  completion  of  th<?  road  by  the  time 
specified  was  a  condition  precedent,  and  on 
failure  to  comply  therewith  the  company 
did  not  become  entitled  to  the  bonds.  Mc- 
Maniis  V.  Duliith,  C.  &*  N.  R.  Co.,  51  Minn. 
30.  52  N.  IV.  Rep.  980. 

It  being  necessary  for  the  railroad  to  cross 
the  lands  and  railroad  of  another  company, 
the  proper  steps  should  have  been  season- 
ably taken  to  secure  the  right  of  way  ;  and 
delay  in  the  construction  resulting  from 
neglect  to  do  so  is  to  be  attributed  to  the 
fault  of  the  railroad  company.  McManus 
v.  Dtiluth,  C.  &*  N.  R.  Co.,  SI  Minn.  30,  52 
yV.  IV.  Rep.  980. 

Minn.  Sp.  Laws  of  1889,  ch.  205,  providing 


for  a  popular  vote  on  a  proposition  to  is- 
sue bonds  in  aid  of  railroads,  did  not  give  to 
the  bond  coininissioiiers  liic  ])ower  of  deter- 
mining conclusively  the  fact  as  to  whether 
the  conditions  upon  which  the  bonds  were 
voted  had  been  complied  with.  McManus 
V.  Dulxth,  C.  &*  N.  R.  Co.,  51  Minn.  30,  52 
A'.  \V.  Rep.  980. 

Where  a  subscription  to  the  stock  of  a 
railroad  company  on  behalf  of  a  city  is  au- 
thorized by  ordinance,  to  be  made  on  cer- 
tain conditions  precedent,  the  subsequent 
issue  of  bonds  in  payment  of  the  subscrip- 
tion proves  the  conditions  to  have  been 
either  complied  with  or  waived  by  the  city. 
Com.  ex  rel.  v.  Pittsburgh,  43  Pa.  St.  391. 

A  city  subscribed  $1000  per  mile  to  the 
stock  of  a  railroad,  the  bonds  to  be  deliv- 
ered as  the  track  was  laid  and  the  cars  run- 
ning on  each  section  of  not  less  than  ten 
miles,  but  specially  providing  that  the  east- 
ern terminus,  general  offices,  and  headquar- 
ters of  the  road  should  be  in  the  city.  The 
company  never  built  any  road  itself,  but  had 
its  general  offices,  nominally  at  least,  in  the 
city  ;  but  it  arranged  with  another  company 
to  build  sixty-three  miles  of  road,  which  were 
operated  from  its  general  offices  and  head- 
quarters in  another  city.  Held,  that  this 
did  not  constitute  a  compliance  with  the 
condition.  State  ex  rel.  v.  Minneapolis,  32 
Minn.  501,  21  A'.  W.  Rep.  722. 

Under  the  above  condition,  the  operating 
headquarters  and  general  offices  of  the  road, 
after  constructicw.  should  be  established 
and  permanently  maintained  in  the  city.  It 
is  the  nature  both  of  a  condition  precedent  to 
the  issue  of  the  bonds,  and  also  a  continuing 
obligation  on  the  company  after  their  issue, 
and  contemplates  that  these  general  offices 
shall  be  established  in  the  city  before  the 
bonds  are  issued  and  maintained  there  af- 
terwards. State  ex  rel.  v.  Afinneapolis,  32 
Minn,  501,  21  A'.  IV.  Rep.  722. 

228.  CoiulitioiiH  siibHeqiiciit.— In  a 
vote  of  a  town  for  the  issue  of  certain  bonds 
to  a  railroad  company  conditions  were  made 
that  the  bonds  should  be  delivered  to  the 
railroad  company  in  specified  amounts  as 
the  work  upon  the  roadbed  progressed  ; 
and,  further,  that  the  subscriptions  to  said 
capital  stock  should  be  void  and  of  no  effect 
unless  an  agreement  by  the  railroad  com 
pany  with  responsible  parties  should  V.e 
macle  for  its  iron  and  rolling  stock.  These 
were  held  not  to  be  conditions  prerequisite 
to  the  making  of  the  subscriptions  and  the 


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MUNICIPAL   AND    LOCAL   AID,  220. 


issuing  of  the  bonds,  but  only  that  the  sub- 
scriptions and  tlic  bonds  were  to  be  subject 
to  tiie  conditions.  Ettg/e  v.  h'o/in,  84  ///. 
292. 

A  proposition  submitted  contained  a  pro- 
vision that  the  amount  subscribed  be  ex- 
pended only  in  the  event  of  the  railroad 
being  constructed,  and  running  centrally 
ilirout>h  the  county.  He/d,  that  the  con- 
si  luction  of  the  road  was  not  a  condition 
precedent  to  the  issuance  of  the  bonds,  for 
that  the  language  might  mean  "  constructed 
and  running  centrally  through,"  etc.,  since 
this  was  the  construction  placed  thereon  by 
the  county  judge  by  his  act  of  issuing  the 
bonds.     Clapp  v.  Cedar  County,  5  Iowa  15. 

A  railroad  company  chartered  under  the 
territorial  law,  which  prescribes  how  com- 
panies may  be  chartered  and  organized,  and 
how  subscriptions  to  the  capital  stock  may 
be  made  and  collected,  may  accept  the  ben- 
efits of  Kan.  Act  of  1870,  ch.  90,  enabling 
townships  to  subscribe  for  railroad  stock, 
and  providing  for  payment  in  bonds,  which 
are  not  to  be  issued  until  the  railroad  shall 
have  been  completed  through  the  township, 
or  to  such  point  as  may  be  agreed  upon. 
Atchison,  T.  (S^  S.  F.  K.  Co.  v.  Jefferson 
County  Coin'rs,  21  Kan.  309. 

Under  the  above  statute,  where  a  town- 
ship favors  a  subscription  to  railroad  stock 
by  a  three-fifths  vote,  and  the  subscription 
is  made,  it  is  valid,  and  the  county  commis- 
sioners are  bound  to  issue  bonds  after  a 
full  compliance  on  the  part  of  the  company 
with  the  terms  and  conditions  of  the  vote, 
notwithstanding  that  the  proposition  to 
submit  to  a  vote  contains  a  condition  to  be 
perform iid  on  the  part  of  the  township,  re- 
lating to  ii  transfer  of  its  stock,  which  is 
a  nullity  when  the  condition  is  subsequent 
to  the  !  ubscrij)tion.  Atc/u'son,  T.  &*  S.  F. 
Ji.  Co.  \.  Jrfferson  County  Com' rs,  21  Kan. 

309- 

Where  a  proposition  by  a  township  to  vote 
to  take  stock  in  a  railroad  contains  a  condi- 
tion that  if  the  county  becomes  a  stockholder 
in  the  same  company,  or  issues  bonds  to  aid 
in  a  subscription,  then  the  subscription  of 
the  town  shall  be  null  and  void,  the  township 
subscription  is  not  avoided  by  an  effort  of  tiie 
company  to  enforce  a  pretended  subscrip- 
tion on  the  county,  when,  on  hnal  hearing, 
such  pretended  subscription  is  held  invalid, 
and  no  i)onds  arc  obtained  thereunder. 
Atchison.  T.  &•  .S".  /•'.  A'.  Co.  v.  Jefferson 
County  Com'rs,  21  Kan.  309. 


A  provision  in  the  subscription  of  a  town 
to  railroad  stock  that  the  road  shall  be  built 
"  through  the  town  on  the  line  as  run  by  the 
engineer,  with  a  suitable  depot,"  constitutes  a 
condition  subsequent,  and  will  not  defeat  an 
action  to  recover  the  amount  of  the  sub- 
scription, although  the  condition  had  not 
been  performed  when  the  action  was  com- 
menced. Belfast  &•  At.  L.  R.  Co.  v.  Broods, 
bo  Me.  568.— Distinguished  in  Memphis, 
K.  &  C.  R.  Co.  V.  Thompson,  i  Am.  &  Eng. 
R.  Cas.  331,  24  Kan.  170. 

Where  subscriptions  are  made  to  the  cap- 
ital stock  of  a  projected  railroad  company 
on  condition  that  the  road  take  a  certain 
designated  route,  and  on  the  faith  of  those 
subscriptions  a  charter  is  granted  to  the 
company,  the  subscriptions  are  binding  and 
the  condition  void.  Pittsburgh  (S>»5.  K.  Co. 
v.  lVoodro7o,  I  Pittsb.  (Pa.)  450.— Quoting 
Kennedy  v.  Erie  &  W.  Plank-Road  Co., 
25  Pa.  St.  224.  Reviewing  Cumberland 
Valley  R.  Co.  v.  Baab,  9  Watts  (Pa.)  458. 

A  county  court  does  not  exceed  its  au- 
thority in  delivering  bonds  for  the  first  five 
miles  upon  the  completion  of  that  part  of 
the  roa<l  because  it  had  not  been  "  equipped 
and  operated  by  steam  for  travel,"  etc. 
This  has  reference  to  the  character  of  the 
construction  of  the  road,  and  its  operation 
was  n(Jt  a  prerequisite  to  the  power  of  the 
county  court  in  delivering  the  authdrized 
•  bonds  on  the  conipk-tion  of  the  first  section 
of  the  road,  as  required  by  its  charter.  Aus' 
tin  v.  Gulf,  C.  &>  S.  F.  K.  Co.,  45  Tex.  234, 
13  Am.  l\y.  Pep.  172. 

22».  Walvor  of  rttiiditioiis.— Where 
a  county  subscribes  to  railroad  stock  with 
a  condition  requiring  the  road  to  be  com- 
pleted within  a  certain  time,  and  the  county 
subsequently,  through  its  officers,  agrees  to 
extend  the  time  fof  completing  the  road, 
and  before  the  expiration  of  the  extended 
time  the  county  declares  the  road  completed 
to  its  satisfaction,  delivers  its  bonds,  and  re- 
ceives certificates  of  stock  in  the  company, 
this  constitutes  a  waiver,  and  estops  the 
county  from  objecting  that  the  road  was 
not  completed  in  time.  Randolph  County 
v.  PoU,  93  U,  S.  502. —Distinguished  in 
Clark  V.  Rosedale,  70  Miss.  542. 

If  county  authorities  issue  and  deliver  the 
bonds  of  the  county  to  a  railroad  company 
before  performance  of  the  conditions  upon 
which  they  were  to  be  issued  and  delivered, 
this  will  be  a  waiverof  the  conditions  by  the 
county.   Chinii]uy  v.  People  ex  rel.,  78  ///.570. 


MUNICIPAL   AND    LOCAL   AID    230,231. 


633 


230.  Conditions  n(»t  hiiidiiit;  on 
piirciinsorH  tit  fort'i-losuru  sale.  —  A 

railway  corporation  which  succeeds  to  the 
ownership  of  the  property  and  franchises  of 
another  company  by  purchase  under  fore- 
closure will  owe  a  county  which  has  made 
a  conditional  subscription  to  the  company 
no  duty  not  imposed  by  law,  and  will  take 
the  road  and  its  property  absolutely  dis- 
cliarged  from  the  contract  between  the 
county  and  the  original  railway  company, 
as  well  as  the  conditions  imposed  by  the 
vote  of  the  people.  People  ex  rel.  v.  Louis- 
ville <5-  A'.  R.  Co.,  1 20  ///.  48,  10  N.  E.  Rep. 
657. 

A  certain  town  subscribed  to  the  stock  of 
a  company  on  condition  that  the  road  be 
built  to  the  town  and  that  its  machine 
shops  be  located  there,  which  conditions 
were  complied  with  and  the  subscrip- 
tion paid.  Subsequently  a  different  com- 
pany bought  the  road  with  its  property 
and  franchises,  and  removed  the  shops  to 
another  point.  Held,  that,  as  no  lien  was 
retained  on  the  road  to  secure  the  condi- 
tions in  the  hands  of  purchasers,  the  town 
had  no  cause  of  action  for  the  removal 
of  the  shops.  Elizabethtofwn  v.  Chesapeake, 
O.  <S-  S.  IV.  R.  Co.,  {Ky.)  22  S.  IV.  Rep. 
609. 

Conditions  in  a  subscription  to  a  railroad, 
e.  g.,  that  the  road  run  by  a  certain  town  or 
on  a  certain  route,  etc.,  are  valid,  and  must 
be  complied  with  by  the  company  to  render 
the  subscriptions  binding.  Jacks  \.  Helena, 
41  Ark.  213. 

231.  Conditions  part  of  the  con- 
tract of  subscription. — Where  a  town 
as^rees  to  take  stock  in  a  railroad  and  issue 
its  bonds  when  the  road  has  complied  with 
certain  conditions,  after  the  company  has 
fully  complied  with  the  conditions  a  law 
forbidding  the  bonds  is  unconstitutional, 
Nid  Rock  v.  Hemy,  106  t/.  S.  596,  i  Sup. 
CI.  Rep.  434. 

Where  county  commissioners  make  a 
conditional  subscription  to  the  stock  of  a 
railroad,  and  the  terms  and  conditions  em- 
bodied in  a  resolution  of  subscription  are 
accepted  by  the  railroad  company,  they  form 
part  of  the  contract  between  them ;  and 
the  railroad  company  cannot  in  good  faith 
raise  the  objection  that  none  but  an  uncon- 
ditional subscription  was  authorized  by  the 
act  of  1C72.  lialtimore  &*  D.  P.  R.  Co.  v. 
Pumphrey,  74  Md.  86.  21  All.  Rep.  559. 

Although  the  commissioners  could  add 


no  condition  to  their  subscription  that  was 
in  conflict  or  inconsistent  witli  the  terms 
prescribed  by  the  act  of  the  legislature, 
there  was  nothing  in  the  act  to  negative 
their  right  to  add  such  terms  and  condi- 
tions as  would  consist  with  the  terms  of  the 
power,  and  were  proper  for  the  protection 
and  security  of  the  rights  and  interests  of 
the  community  that  they  represented.  Hal- 
timore  iS>«  D.  P.  R.  Co.  v.  Pumphrey,  74  Md. 
86,  21  All.  Rep.  559. 

Assuming  that  the  Maryland  Acts  of  1872 
and  1874  are  free  of  all  constitutional  ob- 
jection, the  conditional  subscription  of  the 
commissioners  was  a  valid  contract,  and  as 
such  exhausted  the  power  of  the  commission- 
ers to  make  any  further  subscription.  Bal- 
timore 6-  D.  P.  R.  Co.  V.  Pumphrey,  74  A/d. 
86,  21  All.  Rep.  559. 

When  in  1880,  before  any  of  the  more  im- 
portant conditions  of  the  subscription  had 
been  complied  with  by  the  railroad  com- 
pany, the  latter  applied  for  and  obtained  an 
amendment  of  its  charter  (act  of  1880.  ch. 
200),  and  accepted  the  same,  extending  the 
time  for  the  completion  of  the  road,  with  the 
condition  that  it  should  not  in  any  way  be 
so  construed  as  to  bind  the  county  for  its 
subscription  unless  the  county  commis- 
sioners should  give  their  consent  to  the 
continuation  thereof,  the  railroad  company 
thereby  in  effect  released  the  subscription. 
Baltimore  &*  D.  P.  R.  Co.  v.  Pumphrey,  74 
Md.  86,  21  Atl.  Rep.  559. 

The  county  commissioners  never  having 
given  their  consent  to  a  continuation  of  the 
original  subscription  as  made,  and  having 
no  power  so  to  do,  the  power  conferred  hav- 
ing been  exhausted,  an  attempt  by  them  to 
make  a  new  subscription  on  the  21st  of  Jan., 
1890,  on  different  and  conflicting  terms  and 
conditions,  was  simply  a  nugatory  act.  Bal- 
timore <S-  D.  P.  R.  Co.  V.  Pumphrey,  74  Md. 
86,  21  Atl.  Rep.  559. 

The  contract  for  a  city  subscription  to 
railroad  stock  provided  that  the  bonds  is- 
sued by  the  city  should  be  left  in  escrow,  and 
delivered  to  the  company  when  certain  con- 
ditions should  be  performed,  among  which 
was  one  requiring  a  railroad  truss  bridge  to 
be  constructed  across  a  river  opposite  the 
city,  which  the  road  crossed,  within  three 
years,  the  bonds  to  be  returned  to  the  city 
if  the  bridge  should  not  be  constructed 
within  the  time.  Held,  that  nothing  but  a 
railroad  truss  bridge  would  meet  the  re- 
quirements of  the  contract,  even   though 


1 


»  if 


634 


MUNICIPAL  AND   LOCAL  AID,  232,  233. 


u 


anuther  bridge  iiii^lii  !jc  as  ^uod  as,  ur  uvcii 
better  than,  sucli  a  bridge  fui  ilic  use  in- 
tended. U'inona  v.  Minnesota  A'.  Loititr, 
Co.,  27  Minn.  415,  6  ^\'.  //'.  Kep.  795,  8  A'. 
IV.  Kep.  148. 

And  where  the  city  sues  to  obtain  a  re- 
turn of  the  bonds,  the  company  cannot  have 
tlie  benefit  of  a  defense  tliat  the  city  has  ac- 
cepted and  acquiesced  in  the  kind  of  bridge 
built,  unless  si;ch  fact  be  set  up  in  an  answer 
and  sustained  by  proof.  Where  no  issue  of 
the  kind  is  made  in  the  trial  court,  the  su- 
preme court  will  not  consider  evidence, 
though  strong,  tending  to  show  such  ac- 
quiescence and  acceptance.  Winona  v. 
Minnesota  K.  Constr.  Co.,  27  Minn.  415,6  N. 
\V.  Kef>.  795,  8  A'.  W.  Hep.  148, 

232.  Cuiiditluii  tliat  other  iiiiiiiici- 
palities  Hubscrilie.— Where  a  town  sub- 
scription to  railroad  stock  is  contingent 
upon  other  towns  making  like  subscriptions, 
the  fact  that  the  other  towns  cannot  legally 
subscribe  will  invalidate  the  subscription ; 
but  such  fact  is  no  ground  for  an  injunction 
to  prevent  an  issue  of  bonds,  where  there  is 
notiiing  to  show  that  there  is  any  intention 
to  issue  them  except  in  strict  compliance 
with  the  terms  of  the  subscription.  Phillips 
V.  Albany,  28  Wis.  340,  5  Am.  Ry.  Rep.  46. 
— Approved  in  Lawson  v.  Schnellen,  33 
Wis.  288. 

233.  Condition  tliat  road  be  built 
and  ruiinini;  at  Htated  time.— (1)  Gen- 
eral rules. — Under  the  III.  Act  of  April 
16,  1869,  providing  for  municipal  subscrip- 
tions to  railroads,  a  county  has  the  right  to 
impose,  in  a  vote  on  a  proposition  to  sub- 
scribe, a  condition  that  the  bonds  shall  not 
issue  unless  the  road  be  commenced  and 
completed  within  certain  fixed  dates.  Ger- 
man Sav.  Bank  v.  Franklin  County,  128  U. 
S.  526,  9  Sup.  Ct.  Rep.  1 59. 

There  is  no  fraud  upon  the  people  in  the 
giving  of  a  written  guaranty  by  he  presi- 
dent of  a  railroad  that  if  the  vote  of  a  town 
results  in  favor  of  a  subscription  the  bonds 
shall  not  be  called  for  until  satisfactory  as- 
surances shall  be  given  of  the  completion  of 
the  road.  Hensley  Tp.  Sup'r  v.  People  ex 
rel.,  84  ///.  544. 

To  entitle  a  railroad  company  to  receive 
tie  money  appropriated,  the  road  need  not 
be  perfect  in  every  respect,  but  it  must  be 
so  far  completed  that  it  may  be  properly 
•ind  regularly  used  for  the  purpose  of  trans- 
p<>rtini{  freight  and  passengers,     lirocaw  v. 


Gibson  CouiUy  Coin'rs,  3  Am.  &>  Eng,  JR.  Cas, 
573.  7i  litil.  543. 

When  a  peiiiiou  f(,r  aiil  is  upon  coM.ii- 
tions,  expressed  in  the  petition,  that  the 
road  shall  be  completed  through  the  town- 
ship and  a  depot  erected  thereon  by  u  day 
named,  a  failure  to  perform  the  condit-ons 
forfeits  the  aid  voted,  under  tho  provisions 
of  the  statute,  Iiid.  Rev.  St.  1881,  j^  4045 
and  4062 ;  and  after  such  forfeiture  the  aid 
so  voted  will  be  no  obstacle  to  voting  aid  to 
another  railroad  upon  proper  petition  under 
g  4045.     Irwin  v.  Lffive,  89  InU,  540. 

Where  a  township  votes  to  subscribe  to 
railroad  stock  on  condition  that  the  road 
be  built  within  a  specified  time,  a  sale  of  the 
road  at  its  completion,  the  company  reserv- 
ing the  right  to  complete  the  road  and  to 
collect  the  tax,  does  not  defeat  its  right  to 
collect  the  subscription  after  the  road  is 
completed,  even  though  the  sale  be  under 
such  conditions  as  to  work  a  voluntary  dis- 
sblution  of  the  corporation.  Muscatine 
Western  R.  Co.  v.  Norton,  38  Io7i'a  33. — 
D1STINGUI.SHED  IN  Manning  v.  Mathews, 
66  Iowa  675;  State  v.  Central  Iowa  R.  Co., 
71  Iowa  410, 32  N.W.  Rep. 410.  Reviewed 
IN  Harwood  v.  Quinby,  44  Iowa  385. 

The  act  of  township  trustees  in  issuing  to 
a  railroad  company  a  certificate  of  com- 
pliance with  the  conditions  upon  which  the 
tax  was  voted  is  judicial,  and  they  arc  not 
liable  in  damages  for  a  refusal  to  issue  it 
unless  they  act  wilfully  or  corruptly.  .!//«- 
catine  Western  R.  Co.  v.  H or  ton,  38  Iowa  33. 

When  a  city  agrees  to  issue  bonds  in  aid 
of  a  railroad  provided  it  is  completed  to  a 
certain  city  within  a  cert  \in  time,  the  com- 
pany does  not  comply  wi  h  the  agreement 
where  there  is  a  break  in  the  road  of  about 
a  mile,  one  third  of  which  is  river  and  the 
remainder  bottom  Ip.ids  on  either  side,  and 
over  which  passengers  and  freight  have  to 
be  hauled  in  wagons  and  ferried.  Hodgntan 
V.  Chicago  6-  St.  P.  R.  Co.,  20  Minn.  48 
{Gil.  36). 

Where  a  county  court  makes  an  order  for 
the  subscription  of  stock  to  a  railroad  com- 
pany upon  condition  that  the  road  shall  be 
built  within  a  specified  time,  it  is  in  the 
power  of  the  county  court,  by  a  subsequent 
order,  to  suspend  the  delivery  of  bonds  of 
the  county,  issued  in  payment  of  the  sub- 
scription, and  remaining  in  the  hands  of  a 
trustee,  when  it  appears  that  the  road  has 
not  been  built  within  the  time  specified. 


MUNICIPAL  AND   LOCAL  AID,  233. 


G35 


The  recitals  in  the  order,  however,  lik'c  ;i:iy 
other  declarations  made  by  one  pariy  to  a 
contract,  do  not  conclude  the  other  party. 
Cooper  V.  Sullivan  County,  65  Mo.  542. 

A  condition  in  a  vote  of  a  municipal  cor- 
poration granting  aid  in  the  construction  of 
a  railroad  that  it  shall  be  payable  when  the 
road  is  completed  for  use  is  complied  with 
when  the  road  is  constructed  so  as  to  be 
reasonably  safe,  fit,  and  convenient  for  the 
public  use  and  accommodation,  as  new  rail- 
roads are  ordinarily  used  in  similar  local- 
ities. Manchester  &•  K.  /v'.  Co.  v.  Keene,  62 
N.  H.  81. 

A  promise  to  pay  a  railroad  company  a 
sum  of  money  when  it  shall  have  constructed 
the  road  from  L.  to  V.  and  kept  the  same  in 
operation,  conveying  passengers  and  freight 
between  said  points  for  the  period  of  one 
year,  is  for  a  valuable  consideration  and 
binding.  Rose  v.  San  Antonio  &*  M.  G.  R. 
Co.,  31  Tex.\<). 

(2)  Illustrations.— Atown'issued  its  bonds 
in  aid  of  a  railroad,  payable  on  condition 
that  the  road  be  constructed  to  the  town. 
Subsequently  a  statute  was  passed  fixing  the 
time  within  which  the  road  should  be  com- 
pleted, but  naming  a  time  before  the  ma- 
turity of  the  bonds.  I/elt/,  that  the  time 
thus  fixed  should  be  taken  as  the  time  \.  ;liiii 
which  the  condition  should  be  performed. 
Green  v.  Dyersburg,  2  Flipp.  (U.  S.)  477. 

In  an  agreement  between  a  town  and  a 
railroad  company  by  which  the  railroad 
binds  itself  to  pay  to  the  town  the  proceedsof 
bonds  issued  to  it  by  the  town  upon  failure 
of  the  railroad  from  any  cause  to  construct 
the  road  through  such  town,  a  recital  that 
the  company  had  entered  into  a  contract 
with  one  P.  by  which  he  had  agreed  to  con- 
struct that  portion  of  the  road  within  the 
following  year  was  construed  to  fix  the 
time  within  which  the  company  should  pay 
the  money  if  the  road  were  not  completed. 
Chicago,  P.  &'  S.  IV.  R.  Co.  v.  Marseilles, 
84  ///.  145.  16  Am.  Ry.  Rep.  442- 

Where  a  township  voted  a  subscription 
to  a  railway  to  be  paid  in  bonds,  not  to  be 
delivered  until  the  road  was  completed  and 
in  operation  between  two  points,  within  five 
years,  and  the  road  was  completed  within 
three  years  to  its  terminus  except  about  a 
mile,  but  by  arrangements  with  another 
company  it  operated  its  trains  to  its  termi- 
nus, supplying  all  the  wants  of  the  public, 
when  it  tendered  stock  and  demanded  the 


subscription,  which  was  refused,  which  re- 
fusal prevented  the  completion  of  the  road 
within  the  five  years— Aelil,  that  the  town- 
ship couM  not  be  excused  from  issuing  its 
bonds  after  the  entire  completion  of  the 
road,  even  after  the  lime  limited.  People 
e.r  rel.  v.  Houhn,  82  ///.  93. 

Defendants,  i  s  a  committee  acting  in  be- 
half of  the  citizens  of  P..  entered  into  an 
undertaking  to  furnish  the  right  of  way, 
depot  grounds,  and  cattle  yards,  and  "  to 
obtain  subscriptions  fo;  the  Des  Moines 
Valley  K.  Co.,  in  accordance  with  the  blank 
notes  furnished  by  the  company  for  that 
purpose,  to  -«n  amount  of  at  least  $10,000, 
provided  said  companyrun  its  track  through 
P."  Defendants  obtained  a  large  amount  • 
of  subscriptions  in  tne  form  of  notes  con- 
ditioned to  be  paid  as  soon  as  trains  were 
running  from  K.  to  P.,  and  containing  a. pro- 
viso that  they  were  to  be  void  if  the  trains 
were  not  thus  running  on  or  before  a  cer- 
tain date.  The  road  was  not  completed  to 
P.  until  about  two  and  a  half  months  after 
this  date.  In  an  equitable  proceedim;  by 
the  company  to  require  defendants,  upon 
their  refusal,  to  make  known  the  name  of 
each  subscriber,  the  amount  of  each  sub- 
scription, and  to  deliver  the  notes  thus  held 
by  them  over  to  the  company — held,  on 
demurrer  to  the  petition  containing  these 
averments,  that  the  facts  alleged  entitled 
plaintifTs  to  the  relief  asked,  and  that  the 
defendants  were  mere  trustees  in  holding 
the  subscription  notes,  and  not  entitled  to 
interpose  the  defense,  which  properly  be- 
longed to  the  subscribers  or  makers  of  the 
notes,  and  which  they  might  not  desire  to 
avail  themselves  of ;  that  the  notes  wet< 
void  because  the  road  was  not  completed  to 
P.  at  the  dale  stipulated.  Des  Moines  Val- 
ley R.  Co.  v.  Grajj^.  27  /"wi  99.— Quoted  in 
Siraughan  v,  Indianapolis  &  St.  L.  R.  Co., 
38  Ind.  185. 

Where  a  condition  of  a  tax  voted  in  aid 
of  a  railroa.1  was  that  the  road  should  be 
"  constructed  and  operated  "  to  a  depot  at 
a  certain  place  by  a  given  time— held,  that  it 
was  sufficiently  complied  with  by  the  con- 
struction of  the  road  to  the  given  point  by 
the  time  named,  and  the  continuous  opera- 
tion of  it  thereafter,  even  though  the  road 
was  not  fully  completed,  and  the  depot  was 
only  a  temporary  one.  .md  the  service  was 
not  first  class.  Chicatfo,  M.  &•  St.  P.  R. 
Co.  V.  Shea,  67  Iowa  728,  25  N.  W.  Rep.  901. 


A; 

i 


C3G 


MUNICIPAL   AN^   LOCAL   AID,  234. 


t 


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Muscatine  Western  A".  ( \\  \\  //orton,  38 
J:>:ua  33. 

A  city  contracted  to  subscribe  to  railro<id 
stock,  and  to  issue  its  bonds  therefor  on 
condition  that  they  should  not  be  issued 
until  the  road  should  be  constructed  be- 
twien  designated  points,  according  to  the 
terms  of  a  contract,  and  further  providing 
tliat  tiicy  should  not  issue  at  all  unless 
tile  roarl  was  constructed  and  in  operation 
between  the  points  on  or  before  a  cer- 
tain (late.  Held,  that  the  latter  provision 
was  of  the  essence  of  the  contract,  and 
the  company  was  bound  to  have  its  road 
substantially  completed  on  or  before  the 
time  fixed  to  earn  the  bonds  in  payment  of 
the  subscription.  The  mere  fact  that  a 
track  was  laid  and  trains  running  over  it 
was  not  necessarily  a  compliance  with  the 
conditions.  Memphis,  A'.  <3^  C.  A'.  Co,  v. 
Thompson,  i  Am.  &*  £nif-  A'.  Cns.  331,  24 
A'an.  170.— Distinguishing  Ashtabula  & 
N.  L.  R.  Co.  V.  Smith.  15  Ohio  St.  328; 
Chamberlain  v.  Painesville  &  H.  R.  Co.,  15 
Ohio  St.  225  ;  Warner  v.  Callender,  20  Ohio 
St.  197 ;  Belfast  &  M.  L.  R.  Co.  v.  Brooks. 
60  Me.  568;  Woonsocket  Union  R.  Co.  v. 
Sherman,  8  R.  I.  564;  Swartwout  f .  Michi- 
gan Air  Line  R.Co.,  24  Mich.  389;  McMillan 
V.  Maysville  &  L.  R.  Co.,  15  B.  Mon.  (Ky.) 
21S;  Miller  ?'.  Pittsburgh  &  C.  R.  Co.,  40 
Pa.  St.  237 ;  North  Mo.  R.  Co.  v.  Winkler, 
29  Mo.  318.  — Distinguished  in  Southern 
Kan.  &  P.  R.  Co.  v.  Towner,  41  Kan.  72,  21 
Pac.  Rep.  221. 

And  as  time  was  made  the  essence  of  the 
contract,  a  completion  of  the  road  after  the 
day  fixed  would  not  entitle  the  company  to 
the  bonds,  although  the  company  had  failed 
to  complete  it,  owuig  to  unusual  wet  weath- 
er and  an  extraordinary  rainfall.  Memphis, 
K.  &*  C.  A'.  Co.  v.  Thompson,  i  Am,  <S>*  Jinj,': 
A\  Ciis.  331,  24  A'lin.  170. 

A  town  voted  to  subscribe  to  railroad 
stock  and  issue  its  bonds  in  payment  of  the 
stock  "at  such  lime  "  as  the  radroad  should 
be  built  to  a  certain  place,  but  providing 
that  it  should  be  completed  to  the  place  and 
the  cars  running,  transporting  freight  and 
passengers,  on  or  before  a  j;ivcn  date  ;  other- 
wise the  subscription  would  be  void.  //eM, 
that  the  bonds  could  not  be  demanded  un- 
til the  road  was  completed  and  cars  running 
thenMin.  J'ortlanti  &^  O.  C.  R.  Co.  \.  Hart- 
font,  58  Me.  23. 

Under  the  requisite  legislative  authority 
conferred  by  Minn.  Sp.  Laws  1869,  ch.  46, 


the  town  of  Lime  duly  adopted  a  resolution 
"authorizing  and  directing  its  supervisors 
and  their  successors  in  office  to  issue  and 
deliver  to  the  Minnesota  &  Northwestern 
R.  Co.  (the  relator  herein)  the  bonds  of 
said  town,  with  interest  coupons  attached, 
to  the  amount  of  $4000,  ♦  *  ♦  one  half  of 
said  bonds  to  be  delivered  to  said  company 
whenever  it  shall  have  graded  and  bridged 
its  road  from  the  city  of  Mankato  for  twelve 
miles  in  a  southerly  direction,  and  the  other 
half  to  be  delivered  when  the  said  rail- 
road is  completed  to  Wells,  ♦  *  ♦  the  iron 
laid,  and  the  cars  running  thereon.  Pro- 
vided, that  said  last  instalment  of  bonds 
shall  never  be  delivered  unless  said  thirty- 
nine  miles  of  railroad  is  so  completed  be- 
fore the  first  day  of  August,  A.  D.  1872." 
Held:  (I)  the  adoption  of  this  resolution 
created  a  statutory  obligation  binding  tlic 
town  to  issue  the  bonds,  in  accordance  with 
its  terms  and  conditions,  upon  performance 
thereof  by  said  company.  No  written  agree- 
ment nor  formal  acceptance  was  necessary 
on  the  part  of  the  company  to  give  effect 
and  validity  to  the  resolution.  It  was  in 
the  nature  of  a  standing  ofTer,  of  which  the 
company  could  avail  itself,  by  entering  upon 
the  construction  of  the  road,  at  any  time 
before  it  was  rescinded  or  withdrawn.  (2) 
that  said  company  was  entitled  to  receive 
the  instalment  of  bonds  therein  first  speci- 
fied upon  the  grading  and  bridging  of  the 
first  twelve  miles  of  road  from  Mankato. 
though  such  work  was  not  all  done  prior  ii> 
said  first  day  of  August,  1872.  State  ex  rel. 
V.  Lime  Sup' rs,  23  Minn.  521. 

A  proposition  for  precinct  bonds  to  a 
railroad  company  provided  that  they  should 
be  issued  "  when  said  road  shall  be  graded, 
lied,  and  ironed,  and  completed  ready  for 
the  running  of  trains,  and  trains  running 
thereon,  etc.,  on  or  before  the  ist  day  of 
January,  1880."  Held,  that  the  company, 
on  compliance  with  these  conditions  within 
the  time  specified,  was  entitled  to  the  bonds. 
Townsend  \.  Lamb,  14  A'eb.  324,  15  N.  If. 
A'ep.  727. 

2:<4.  Location  of  route  and  ter- 
mini.—Where  a  statute  authorizes  a  com- 
pany to  build  a  branch  starting  from  a  given 
point  "or  from  any  point  on  the  existing 
road  easterly  or  southerly "  from  such 
point,  and  to  end  at  "any  point "  on  a  cer- 
tain lake  or  river,  thus  giving  an  option 
over  a  wide  extent  of  country,  "  upon  such 
route  and  location,  and  through  such  coun- 


MUNICIPAL   AND   LOCAL   AID,  235. 


63^ 


ties  as  the  board  of  diri;ct')rs  shall  dtjein 
most  feasible,"  and  auiliori/es  any  tnwu, 
village,  or  county  through  or  near  wiiicli 
the  road  may  pass  to  subscribe  to  its  stock, 
t'lo  route  of  the  whole  extension  must  be 
located  by  the  directors,  and  the  two  Ar- 
;///>;/■  fixed,  before  a  town  can  subscribe  and 
issue  its  bonds.  Thomas  v.  Lansing,  14 
FciL  Rep.  618.  21  lUatchf.  (U.  S.)  119.— 
h<.M.owiNO  Marsh  v.  Fulton  County,  10 
Wall.  (U.  S.)  676.— Mellen  v.  Lmnin^,  19 
lUaUhf.  (U.  S.)  512,  II  /Vr/.  /u/.  820.— 
DlsriNUUlSHlNU Smith?/.  Yates,  15  Ulatchf. 
89. 

And  such  location  must  be  determined  by 
the  directors,  and  not  the  town  commis- 
sioners appointed  to  subscribe  to  the  stock, 
and  the  county  judge  cannot  apiioiiit  sucli 
commissioners  until  after  the  directors  have 
designated  the  municipality  to  vote  the  aid. 
Thomas  v.  Lansing,  14  Fed.  Rep.  618,  21 
Blatchf.  (U.  S.)  119. 

And  under  the  above  statute  towns  have 
no  power  to  issue  bonds  until  the  directors 
of  the  company  shall  first  fix  the  location 
of  the  road ;  and  where  bonds  have  been  is- 
sued without  this  requirement  bcin^  cdtn- 
plied  with,  a  dona  fide  holder  thereof  can- 
not recover  on  them,  though  the  town  has 
been  paying  interest  thereon.  Mt/Isu  v. 
Lansing,  1 1  Fed.  Rep.  829,  20  Blatchf.  ( U.  S.) 
278. 

Under  Kan.  Act  of  Feb.  10,  1865,  author- 
izing counties  to  subscribe  to  railroad  stock, 
it  is  not  necessary  tliat  the  aitiial  location 
of  the  road  be  made  before  an  election  is 
held  to  vole  upon  the  question  of  the  sub- 
scription. It  is  sufficient  if  the  proposition 
shows  the  route  and  terminus  of  the  road 
in  general  language.  Johnson  County  Com'rs 
V.  Thayer,  ^\  U.  5.  631.— DlSTlNGUISHlNU 
Lewis  V.  Bourbon  County  Com'rs,  12  Kan. 
186,  Missouri  River,  Ft.  S.  &  G.  R.  Co.  v. 
Miami  County  Com'rs,  12  Kan.  234. 

£0  also  under  N.  Y.  Act  of  April  19,  1869, 
ch.  241,  authorizing  any  town  in  Orleans 
county  situate  along  the  route  of  a  certain 
railroad  to  aid  in  the  building  of  the  road 
by  issuing  its  bonds.  Smith  v.  Yates,  15 
lilatchf.  {U.  5.)  89.— Distinguished  in 
Mellen  v.  Lansing,  19  Blatchf.  512,  11  Fed. 
Rep.  820. 

Under  the  N.  Y.  Act  of  1871,  municipal 
bonds  issued  for  stock  in  the  New  York  & 
Oswego  Midland  railroad  before  the  com- 
pany has  designated  all  the  counties  through 
which  the   uad  will  pass  are  unauthorized. 


.111(1  ciiiiKit  I  0  :lie  loundation  of  a  judgment 
ai.;ainst  the  town  issuing  them.  Piirdy  v. 
y.iin.i/ni,',  128  [/.  .\  557,  (J  Sup.  Lt.  Rep.  172. 
—  FoM.DWiNc.  Mellen?'. Laiisin;,',  20  Mlatclif. 
(U.  S.)  27S ;  I'eople  ex  rel.  71.  Morgan.  55 
N.  Y.  587;  Mellen  -'.  Lansing,  19  Blatchf. 
512:  Thomas  v.  Lansin);,  21    Blatchf.   119. 

It  is  competent  f(jra  railroad  company,  in 
submitting  to  a  municipality  a  proposition 
for  aid,  to  define  therein,  as  a  part  of  tiie 
proposition,  tie  line  of  the  proposed  road. 
Tlattii'ille  v.  Galena  &*  S.  W.  R,  Co.,  43 
Wis.  493,  17  .////.  Ry.  Rep.  i. 

Where  a  town  was  authorized  to  subscribe 
to  the  capital  stock  of  a  railroad,  upon  con- 
dition that  It  should  pass  through  such  town, 
and  voted  such  subscription  to  a  company 
whose  charter  was  subsequently  amended, 
changing  the  name  of  tin-  ronipany,  and  re- 
quired tlie  road  to  run  from  one  county  to 
another  without  fixing  any  definite  points, 
and  the  bonds  were  issued  and  made  pay- 
able to  the  company  by  its  new  name,  ii  was 
conien<led  that  the  company  could  not  con- 
struct its  road  through  the  town.  Held, 
that,  as  the  court  could  see  by  reference  to 
a  map  of  the  state  that  the  road  could  be 
built  on  a  straight  line  so  as  to  run  through 
the  township,  the  objection  that  the  town 
was  not  authorized  to  make  the  subscription 
was  not  well  taken.  Reading  v.  Wedder,  66 
///.  So. 

Where  a  county  by-law  was  passed  agree- 
ing to  subscribe  $80,000  to  aid  in  the  con- 
struction of  a  railway  and  issue  debentures 
therefor  under  the  authority  of  the  clause 
of  the  Municipal  Acts  of  1873,  then  in  force 
the  debentures  to  be  delivered  when  a  com- 
pany should  have  begun  upon  the  construe 
ti(jn  of  the  road  and  expended  seventy-five 
per  cent,  of  the  amount  of  the  debentures, 
a  mandamus  will  not  be  granted  to  compel 
delivery  of  the  debentures,  the  company  not 
iiaving  filed  their  plans  and  surveys,  as  re- 
quired by  the  Railroad  Act  (C.  S.  C.  ch.  66), 
without  which  they  had  no  authority  to  be- 
gin their  work,  and  were  bound  to  no  par- 
ticular route,  lor  they  had  not  legally  located 
their  line,  had  no  power  to  begin  work  as 
they  had  done,  and  had  not  done  so  in  good 
faith.  In  re  Stratford C''  H.  R.  Co..  38  C. 
C.  Q.  D.  112.— APPRovti)  IX  Re  Langdon 
&  A.  J.  R.  Co.,  45  U.  C.  y.  B.  47-  Rk- 
viEWED  IN  Grand  Junction  R.  Co.  v.  Peter- 
borough County,  6  Out.  App.  339. 

2:<5.  Itond  iiiiiMt  be  Itiiilt  011  l«M*n' 
tiiMi  proimstMl.— Wherea  town  is  author- 


%. 


ti88 


MUNICIPAL  AND   LOCAL   AID,  235. 


ize<i  to  subscribe  for  railroad  slock  on  con- 
dition that  the  road  be  built  tlirougli  a  town- 
ship witliin  half  a  mile  of  a  certain  court 
house,  and  terminate  at  or  near  a  certain 
city,  the  construction  of  tlie  road  across  one 
corner  of  tlit  township,  and  terminating 
nine  miles  from  the  designated  city,  is  not 
such  a  substantial  compliance  with  the  con- 
ditions as  to  authorize  an  issue  of  bonds, 
and  if  issued  they  are  invalid,  and  a  tax  can- 
not be  imposed  to  pay  them,  or  the  interest 
thereon,  even  when  held  by  innocent  pur- 
chasers.    ParkiT  V.  Smith,  3  ///.  App.  356. 

Where  neither  the  vote  of  a  county  to  is- 
sue- iionds  to  a  railroad  nor  its  charter  re- 
quires the  road  to  be  constructed  on  any 
one  route,  but  where  the  board  of  supervi- 
sors imposes  a  condition  as  to  location  of 
the  road,  and  makes  the  delivery  of  the 
bonds  dependent  on  the  same,  the  company 
by  accepting  such  conditions  is  bound  by 
them.  Alley  v.  Adams  County  Sup'rs,  76  ///. 
101. 

Where  by  the  terms  of  a  county's  sub- 
scription the  permanent  location  of  the 
road  by  a  certain  route  was  an  indispen- 
sahle  prerequisite  to  the  delivery  of  the  first 
ten  per  cent,  of  the  county  bonds,  and  the 
company  represented  and  certified  to  the 
permanent  location  of  its  road  as  contem- 
plated in  the  conditions  of  the  subscription, 
and  on  the  faith  of  it  obtained  ten  per  cent, 
of  the  bon's — held,  that  this,  as  against 
the  right  of  the  company  to  demand  the 
remaining  bonds,  would  be  taken  as  the 
permanent  location  of  the  road,  and  if  the 
company  afterwards  relocated  its  road  upon 
a  materially  diflferent  route,  it  could  have 
no  claim  for  the  delivery  of  the  remaining 
bonds,  not  having  performed  the  condi- 
tions on  which  the  subscription  was  de- 
pendent. Alley  V.  Adams  County  Sup'rs,  76 
///.   lOI. 

In  such  case  the  company  was  estopped 
by  its  receipt  of  county  bonds,  according  to 
the  terms  of  a  certificate  of  its  officers,  from 
denying  that  the  road  was  permanently 
located  on  a  particular  route,  as  therein 
represented.  Alley  v.  Adams  County  Sup'rs, 
76  ///.  101. 

Where  a  statute  provided  for  the  issuance 
of  the  bonds  of  Lyon  county  to  the  V.  &  T. 
R.  Co.  upon  its  building  a  first-class  railroad 
from  Virginia  City  to  Carson,  running 
within  twelve  hundred  feet  west  of  Trench's 
mill  m  Silver  City  (St.  Nev.  1869.  62)— held, 
that  the  building  of  a  first-class  railroad  be- 


tween the  cities  named,  but  running  twenty- 
four  hundred  feet  west  of  Trench's  mill, 
though  a  branch  was  built  up  to  within 
four  hundred  feet,  was  not  a  compliance 
v.'ith  the  condition  of  the  statute,  and  would 
not  authorize  the  issuance  of  the  bonds,  al- 
though an  actual  compliance  was  impracti- 
cable, and  the  road  as  built  was  of  more 
benefit  to  the  people  of  the  county  than  if 
constructed  as  prescribed.  Virginia  iS-  T. 
K.  Co.  V.  Lyon  County  Com'rs,  6  A'(W.  68. — 
DisriNOUisHKU  IN  Stockton  &  V.  R,  Co. 
V.  Stockton,  51  Cal.  328. 

An  act  provided  that  the  county  commis- 
sioners of  any  county  through  or  in  which 
a  railroad  might  be  located  by  a  company 
should  be  authorized  to  subscribe  to  the 
capital  stock  of  the  company,  and  issue 
negotiable  bonds  in  payment  of  such  sub- 
scription. An  alternative  mandamus  was 
awarded  to  require  the  commissioners  to 
levy  a  lax  to  pay  bonds  purporting  on  t^eir 
face  to  have  been  issued  in  payment  of  such 
a  subscription,  and  to  be  payable  to  bearer, 
and  which  were  stated  to  be  held  by  the  re- 
lator as  a  bona  fide  holder.  The  answer  to 
the  writ  state  that  the  road  had  never 
been  located  through  or  in  the  county. 
Held,  on  demurrer,  to  be  a  sufficient  de- 
fense, as  showing  that  the  bonds  had  been 
issued  illegally  and  without  authority  of  law. 
State  ex  rel.  v.  Hancock  County  Com'rs,  1 1 
Ohio  St.  183.— Reviewing  Pearce  r/.  Madi- 
son &  I.  R.  Co.,  21  How.  (U.  S.)  441.— Ap- 
proved IN  Hopple  V.  Brown  Tp.,  13  Ohio 
St.  311. 

A  company  authorized  to  construct  a 
T/iilroad  through  Wisconsin  from  the  Illi 
nois  line  to  intersect  the  M.  &  P.  du  C.  R. 
Co.,  west  of  Monroe,  made  a  proposition 
to  the  plaintiff  town,  stating  that  it  had 
surveyed  and  located  a  line  of  its  road 
through  certain  sections  in  that  town,  to  a 
point  designated  in  the  village  of  Platte- 
ville,  and  proposed  to  build  the  road  "on 
the  route  indicated  "  from  Galena  to  the 
Wisconsin  river;  and  it  asked  aid  of  the 
town  to  build  the  road  "  on  the  route  indi- 
cated." The  town  accepted  the  proposi- 
tion, and  issued  its  bonds.  Held,  that  while 
the  proposition  does  not  disclose  a  survey 
and  location  of  the  line  of  the  road  northward 
beyond  the  point  designated,  yet  it  bound 
the  company  to  build  a  continuous  line  of 
road  from  Galena,  over  the  surveyed  line, 
described  in  the  proposition,  to  the  point 
designated,  and  from  that  point  to  the  Wis- 


MUNICIPAL   AND    LOCAL    AID,  2:<0-2:i8. 


631) 


consin  river.     Plattmille  v.   Giilciui  &*   S. 
If.  A'.  Co.,  43  ir/i.  493,  17  Aw.  Ay.  Kep.  1. 

2:i<l.  UoihIh  to  \w  dclitprcd  upon 
('xpciiditiire  of  a  kIvcii  niiiii.  -Where 
a  township  voted  a  suhscription  of  $50,000 
to  the  capital  stock  of  a  railway  comi)any,  to 
be  paid  in  bonds,  and  the  condition  of  the 
vote  was  that  the  bonds  were  to  be  de- 
livered when  work  was  done  irj  the  town- 
sliip  to  the  amount  of  such  bonds— Z/*"/^/, 
that  the  building  of  the  road  through  the 
town  at  a  cost  of  only  $30,000  or  even  $41,- 
000  was  not  a  substantial  compliance  with 
the  conditions,  and  that  the  court  would 
not  compel  the  issue  of  the  bonds.  People 
ex  rel.  v.  /i  'ayttesvtl/e  Stip'r,  88  ///.  469,  2 1 
Am.  Ay.  A'ep.  339. 

Where  a  charter  authorizing  the  voting 
of  municipal  subscriptions  for  stock  con- 
tained a  proviso  that  the  bonds  should  not 
be  issued  nor  any  payment  made  until  an 
amount  of  work  should  be  done  on  the  rail- 
road in  the  town,  or  on  such  part  of  the  line 
of  the  road  as  the  authorities  of  the  town 
should  designate,  equal  in  value  to  the 
amount  of  the  bonds  to  be  issued —//<•/</, 
that  the  charter  required  any  deviation 
from  the  conditions  therein  prescribed  to 
be  submitted  to  the  voters,  and  at  the  same 
election  at  which  the  subscription  was 
voted.  People  ex  rel.  v.  Wayneri'tlle  Sup'r, 
88  ///469,  21  Am.  Ry.  Rep.  339. 

2.17.  That  a  Ntatioii  be  hiiilt  at  a 
certain  place— a  vote  by  a  county  to 
issue  bonds  to  a  given  railroad  company 
whose  line  runs  to  the  county  seat  is  not 
rendered  invalid  by  a  condition  that  a  de- 
pot of  the  company  shall  be  located  within  a 
specified  distance  of  tlie  county  seat,  nor  by 
a  condition  that  the  railroad  bridge  over  a 
large  stream  in  the  county  shall  be  so  con- 
structed that  it  may  be  used  as  a  free  wagon 
bridge.   Union  Pac.  R.  Co.  v.  Merrick  County, 

3     Dill.     (U.     S.)     359.  —  DiSTINGUISHINO 

Fulton  County  Sup'rs  v.  Mississippi  &  W. 
R.  Co.,  21  111.  338. 

In  a  contract  between  a  railroad  company 
and  a  township  which  stipulated  "  that 
said  company  will  not,  and  shall  not,  be  en- 
titled to  draw  out  of  the  hands  of  the  treas- 
urer any  money  collected  out  of  said  tax 
until  said  company  shall  have  erected  a 
depot  within  one  mile  of  the  village  of  New 
.  Hampton,  in  New  Hampton  township," 
the  words  in.  New  Hampton  township" 
are  merely  descriptive.  It  is  a  compliance 
with  the  contract  if  the  depot  be  erected 


within  one  mile  of  New  Hampton  village. 
Mtiirexor  yf*  H.  C.  R.  Co.  v.  Foley,  38  Jmva 
588. 

One  of  the  conditions  in  an  agreement  to 
be  performed  by  a  railroad  company  upon 
which  a  corporation  whs  to  issue  its  bonds 
in  its  aid  was  "  to  construct  at  or  near  the 
corner  of  certain  streets  in  Toronto  a 
freight  and  passenger  station  with  all 
necessary  accommodations,  connected  by 
switches,  sidings,  or  otherwise  with  said 
road,"  upon  the  council  of  the  town  passing 
a  bylaw  granting  a  necessary  right  of  way. 
Jlelil,  that  such  condition  was  not  complied 
with  by  the  erection  of  a  station  building 
not  used,  nor  intended  to  be  used,  and  for 
which  proper  officers,  such  as  station  master, 
ticket  agent,  etc.,  were  not  appointed.  Hick- 
ford  V.  Chatham,  16  Can.  Sup.  Ct.  235 ; 
t/ismissint;  appeal  from  14  Out.  App.  32, 
lohich  affirms  10  Ont.  257. 

Tlic  conditions  agreed  upon  were  that 
defendants  should  grant  and  continue  to 
three  other  roads  equal  privileges  as  to 
working  and  using  defendants'  railway ; 
that  defendants  should  have  a  siding  and 
flag  station  at  or  near  two  named  villages 
on  their  line,  and  should  cause  or  procure 
one  of  the  other  roads  to  erect  a  station  at 
or  near  a  named  point  of  intersection.  Held, 
that  these  conditions  were  all  legal  and 
valid,  and  that  defendants,  having  received 
the  debentures  for  the  bonus,  could  not  ob- 
ject that  such  agreement  was  ultra  vires. 
Haldimand  County  v.  Hamilton  &•  N.  W, 
R.  Co.,  27  U.  C.  C.  P.  228. 

2!)8.  Promises  by  otiiccrs  of  com- 
pany.—Where  the  petition  for  an  election 
to  vote  a  subscription  by  a  town  for  a  rail- 
road provided  only  that  the  road  should 
run  through  the  town,  without  fixing  any 
more  definite  line, evidence  that  the  officers 
of  the  company  at  the  election  made 
speeches  declaring  that  the  road  would  be 
located  through  the  center  of  the  town, 
when,  in  fact,  it  was  subsequently  located 
through  the  town  on  one  side,  without  any 
offer  to  prove  that  such  declarations  were 
not  made  in  good  faith  at  the  time,  and 
were  relied  on  by  a  sufficient  number  of 
voters  to  have  changed  the  result,  is  properly 
excluded.  Hlinois  Midland  R.  Co.  v.  Bur- 
nett Sup'rs,  %s  HI.  313. 

A  proposition  made  by  a  representative 
of  the  railroad  that  he  desired  that  the  citi- 
zens of  a  town  should  procure  for  the  com- 
pany the  right  of  way  through  the  town  and 


V  .-^  " 


C40 


MUNICIPAL   AND    LOCAL   AID,  2»U,  240. 


i^ 


m 


I 


1141 


county  and  the  necessary  ground  in  tlie  city 
for  depot  purposes,  and  also  tlio  sum  of 
$75,000,  which  he  said  was  but  a  portion  of 
the  extra  cost  to  run  the  road  into  town  and 
tint  a^ain  ;  and  also  the  right-of-way  bonds 
whicli  the  citizens  executed,  were  to  bo  all 
considered  as  entering  into  and  forinin;^  an 
inducement  for  the  contract.  It  became 
the  duty  of  the  railroad  under  the  contract 
to  survey  and  establish  a  route  to  a  point 
within  the  city  limits  witltin  half  a  mile  of 
the  court  house,  and  to  select  and  mark  out 
the  necessary  grounds  for  depot  purposes, 
which,  when  done,  devolved  the  duty  upon 
the  citizens  to  secure,  by  purchase  or 
condemnation,  the  .titles  to  the  property, 
and  that  the  company  in  failing  to  do  this, 
and  by  runningtheroad  around  to  the  north 
line  of  the  city  limits,  then  deflecting  so  as 
just  to  enter  the  city  limits,  and  running  on 
that  line  a  few  hundred  yards,  and  thence 
deflecting  again  out  of  the  limits  of  the 
city  and  running  several  hundred  yards  to 
a  point  where  the  company  estai)lished  a 
depot  on  a  tract  of  land  owned  by  itself, 
acted  in  bad  faith  with  the  citizens,  and 
therefore  the  court  declined  to  enforce  the 
obligations  executed  as  a  part  of  the  sub- 
sidy. M/i/er  V.  Gil//,  C.  <S-  S.  F.  h\  Co.,  24 
Am.  &•  En^.  K.  Cas.  1 58,  65  7V.r.  659. 

239.  Written  prupoHalH  of  compa- 
ny uccouipanyiiiff  petition.— Under  the 
Miss.  Act  of  1890  (Laws,  p.  690).  empower- 
ing a  town  through  its  oflicials  to  subscribe 
for  the  stock  of  a  railroad  company  and  to 
issue  bonds  in  payment  when  authorized  by 
a  vote  ordered  on  petition  of  freeholders, 
whore  in  case  of  election  there  is  such  a 
petition,  accompanied  by  a  written  proposal 
on  the  part  of  the  railroad  company  that  its 
line  will  be  completed  within  a  certain  time, 
such  stipulation,  though  not  in  the  peti- 
tion of  freeholders  or  the  order  for  the  elec- 
tion or  notice  thereof,  becomes  a  part  of  the 
contract,  and  on  failure  to  complete  the 
road  within  the  time  fixed  the  town  so  sub- 
scribing may  sue  on  the  bond  given  by  the 
railroad  company  as  a  guaranty  that  the  con- 
tract will  be  complied  with,  or  may  have 
cancellation  of  its  bonds  in  the  hands  of  the 
company,  dark  v.  Rosedale,  70  Miss.  542, 
12  So.  Rep.  600.  —  Distinguishing  Ran- 
dolph County  V.  Post,  93  U.  S.  502. 

240.  Subscription  to  be  paid  upon 
completion  of  road.— (i)  General  rules. 
— Where  county  bonds  are  issued  to  a  rail- 
road, to  be  delivered  only  when  the  road  is 


built  through  the  county,  a  new  company 
succL-eding  to  all  tlie  riglits,  privileges,  and 
franchises  (jf  the  company  to  which  the 
bonds  issued,  upon  dr^itig  the  work,  is  en- 
titled to  the  l)ond8.  Tlioinas  v.  Morgan 
County,  59  ///.  479. 

An  adjudication  to  the  elTcct  that  a  rail- 
road company  or  its  iissigiiecs  \v<'re  not  cii- 
tiiled  to  county  bonds  because  work  had 
not  been  done  in  the  county,  as  ri(niirt'd  by 
the  condition  for  their  delivery,  is  not  a 
bar  to  their  recovery  after  the  work  has 
been  done.  T/ioinas  v.  Morgan  Ci>un{y,  59 
///.  479- 

Wliere  money  is  raised  for  the  purpose  of 
taking  stock  in  a  railroad  company,  the 
company  cannot  have  any  of  the  money 
until  it  has  fully  constructed  the  road  so 
that  cars  shall  pass  over  the  same,  and  no 
one  but  a  petitioner  or  a  taxp.iyer  can  have 
a  mandate  to  compel  the  payment  of  the 
money.  Craivford  County  Com'rs  v.  Louis- 
ville, A'.  A.  &*St.  L.  A.  A.  li.  Co.,  39  Ind. 
192,  10  Am.  Ry.  Rep.  416. 

A  township  subscription  to  railroad  stock 
is  not  void  because  it  is  ccjnditional  upon 
the  completion  of  the  road  through  the 
township,  and  through  or  adjoining  a  large 
and  growing  village  therein,  and  the  erec- 
tion of  a  depot  at  or  near  such  village, 
where  it  is  manifest  that  the  condition  is  in 
furtherance  of  the  interests  both  of  the  cor- 
poration and  the  public.  Atchison,  T,  &*  .s", 
f.  R.  Co.  V.  Jefferson  County  Com'rs,  21  Kan. 
309. 

A  condition  imposed  in  a  municipal  sub- 
scription that  the  bonds  should  be  issued 
only  when  the  road  was  built  of  standard 
gauge  and  "  completed  as  first  class,  and  in 
operation,"  does  not  require  the  road  to  be 
perfect  in  every  respect,  but  so  far  com- 
pleted that  it  may  be  properly  and  regularly 
used  for  the  transportation  of  freight  and 
passengers.  Southern  Kan.  &*  P.  R.  Co,  v. 
Towner,  41  Kan.  72,  21  Pac.  Rip,  221. 

(2)  Illustrations.— A  town  voted  to  guar- 
antee the  bonds  of  a  railroad  company  to  a 
certain  amount  "  to  be  used  111  the  comple- 
tion of  the  road  on  and  after  such  time  as 
the  road  should  be  graded,  and  cars  run 
upon  it  between  "  designated  places.  Held, 
that  this  only  had  the  affect  of  fixing  a  time 
for  guaranteeing  the  bonds,  and  they  might 
be  used  in  the  completion  of  the  road  be-, 
fore  that  time.  Douglas  v.  Chatham,  41 
Conn.  211. 

A  company  incurred  a  debt  on  account  of 


MUNICIPAL   AND   LOCAL   AID,  2A1. 


041 


work  done  upon  the  ruaJ,  and  in  |)aynu>nt 
guve  an  order  upon  the  custodian  of  honds 
for  a  sufficient  amount  of  tliein  to  satisfy 
tlic  same,  whicii  order  was  assigned  to  a 
tiiird  person,  f)ut,  l)y  reason  of  then-  havinjj 
been  no  work  done  u|ion  the  road  wiiliin 
the  county,  there  was  no  ohlii^ation  to  de- 
liver the  bonds.  Ilvlii,  that  if  the  work  was 
subsequently  done  witiiin  the  county  ly  the 
successors  of  such  company,  so  as  to  com- 
|)iy  with  the  condition  upon  which  the  bonds 
wen;  to  be  delivered,  tlicn  tlie  order  issued 
by  the  original  company  woidd  oper.ite  as 
an  efpiitable  transfer  to  the  hoiiler  thereof, 
of  so  much  of  the  county  subscription  rep- 
resented i)y  the  boiuls,  as  was  embraced  in 
thi!  order.  Thomas  v.  Morgan  Coiiiitv,  59 
■//.  479. 

In  such  case,  where  the  custodian  of  the 
bonds,  under  the  direction  of  the  county  au- 
thorities, refused  to  deliver  the  bonds  called 
for  by  the  order  of  the  company,  the  holder 
has  his  remedy  In  chancery  to  compel  their 
delivery  to  him  without  hrst  proceedinjj  at 
law  against  the  company  as  for  a  debt  due 
from  them  to  him  as  the  assignee  of  their 
order.  Thomas  v.  Motxan  Couttty,  59  ///. 
479.  — FoM.owKD  IN  Morgan  County  %>. 
Allen,  103  U.  S.  498. 

In  an  action  upon  a  written  contract  to 
])ay  money  upon  the  completion  of  the 
"  Delphos,  liluflton  and  Frankfort"  railroad 
to  the  town  of  Decatur,  it  is  competent  for 
the  |)romisor  to  prove  the  route  and  termini 
of  the  road,  but  he  cannot  vary  the  c  ontract 
by  panjl  evidence  that  the  agreement  was 
that  the  road  shouldbe  extended  to  Toledo, 
and  a  connection  secured  with  other  roads 
leading  to  that  city.  Lirw  v.  Studabaker, 
1 10  I  mi.  57,  10  ;V.  A".  Kep.  301. 

In  such  case  the  complaint  to  enforce 
payment  of  the  money  is  not  sufTicient  if  it 
does  not  aver  that  the  railroad  designated  in 
the  contract  was  completed  to  the  point 
sti|)idated  therein,  and  where  the  complaint 
is  bad  there  is  no  available  error  in  overrul- 
ing a  demurrer  to  a  had  answer.  Low  v. 
Stiuiabaker,  no  Ind.  57,  10  -V.  E.  Rep.  301. 

Where  the  issuing  of  township  bonds  or 
warrants  to  a  railroad  company  is  depend- 
ent upon  the  condition  that  the  company 
shall  build,  or  cause  to  be  built,  and  have  in 
operation,  with  cars  running  thereon,  by 
lease  or  otherwise,  its  railroad,  from  a  cer- 
tain city  therein  named,  at  or  near  the  de- 
pot of  another  railroad  company  in  the  city 
—held,  that  the  building  of  its  road  within 
6  D.  R.  D.— 41 


mi  feet  of  the  limits  of  the  city,  and  dn  ar- 
rangement by  it  with  the  other  railroad  com- 
pany, wlu)se  road  It  intersects  at  that  point, 
for  the  running  of  its  trains  over  the  ro.id 
from  Its  iiitei section  to  its  <lepot  witliiii  the 
;  itv,  and  the  operation  of  tlie  road  from  the 
dipoi  in  the  city  over  its  entire  line,  will  be 
regarded  as  a  substantial  compliance  with 
the  conilitioii.  Chicai^o,  A'.  *l-~«  //'.  A'.  Co.  v. 
Makepeace,  44  Kan.  byb,  24  i'lic.  Rep.   1 104. 

A  city  agreed  to  issue  its  bonds  in  aiil  of 
a  railnjad  on  condition  that  the  C()ni|>aiiy 
should  "  fully  construct,  equip,  and  put  into 
successful  operation  "  a  railroad  into  the 
city  before  receiving  the  bonds.  Held,  that 
this  did  not  necessarily  require  the  company 
to  budd  a  railroad  bridge  across  an  interven- 
ing river.  Tlic  condition  was  satisfied  if  it 
provided  such  facilities  for  passing  the  river 
as,  at  the  time  of  making  the  contract,  were 
usual  and  customary  in  railroad  transporta- 
tion across  the  river,  and  as  were  adequate 
and  reasonably  convenient  for  such  mode 
of  transit,  Hodginan  v.  St.  Paul  tS>»  C,  R. 
Co.,  23  Minn.  153. 

A  county  judge  in  New  York  on  a  peti- 
tion of  taxpayers  of  a  town  appointed  com- 
missioners to  subscribe  for  stock  in  a  rail- 
road when  it  should  be  constructed  through 
a  certain  village.  Held,  that  the  building  of 
the  road  was  a  condition  precedent,  and  that 
the  commissioners  had  no  power  to  make  a 
contract  to  deliver  bonds  before  the  road  was 
built.  Buffalo  &^  J.  R.  Co.  v.  Falconer,  3 
Am.  &*  Eng.  R.  Cas.  593,  103  U.  S.  821. 

A  contract,  under  such  circumstances,  by 
the  commissioners  whereby  they  agreed  in 
advance  of  the  building  of  the  road  to  sub- 
scribe and  deliver  bonds  when  the  road  was 
constructed  is  ultra  %>ires,  and  therefore  no 
valid  contract  existed  that  could  be  impaired 
by  the  amendment  to  the  state  constitution 
of  Jan.  I,  1875.  prohibiting  municipal  aid  to 
railroads.  Buffalo  &'J.  R.  Co.  v.  Falconer, 
2  Am.  &^  Eng.  /'.  Cas.  593,  103  U.  S.  821.— 
Distinguishing  Moultrie  County  ?'.  Kock- 
ingham  Ten-Cent  Sav.  Bank,  92  U.  S. 
631. — Approved  in  Nelson  v.  Haywood 
County,  38  Am.  &  Eng.  R.  Cas.  620,  87 
Tenn.  781. 

U41.  BoiiiIn  to  be  issued  fur  work 
(lone  ill  tlie  county.— Where  the  bonds 
of  a  county,  issued  in  payment  of  a  sub- 
scription to  a  railroad  stock,  are  delivered 
to  bankers  upon  an  understandinjL'  that  they 
are  to  be  applied  in  payment  for  vork  done 
upon  the  road  in  that  county,  and  not  other- 


.^1 


I 


'■H' 


642 


MUNICIPAL  AND   LOCAL  AID,  242. 


It 


m 


wise,  such  understanding  is  hindin}r  upon 
all  persons  alTectefi  wiili  n<»ticc  tlicrcof,  and 
us  tu  them  iIil-  bonds  cannot  be  applied  to 
any  other  purpose.  Thomas  v.  Morgan 
Coi'riiy,  39  ///.  49C). 

In  such  a  ciise  an  assignment  of  part  of 
the  bonds  to  a  third  party  for  work  not  in 
the  county  la-  not  bindin)|r  on  the  county. 
Tiie  party  tal<i't^t!ie  assignment  is  put  upon 
iiKjuiry  as  t;>  the  conciition.  Thoituis  v. 
A/ 01  gnu  County,  39  ///.  496. 

The  fact  that  the  county  voted  as  a  stock- 
holder of  the  company,  and  paid  two  years' 
interest  on  the  bonds,  will  not  be  taken  as  a 
waiver  of  the  condition,  or  thai  the  deposit 
in  bank  was  absolute.  Thonuis  v.  Mori^aii 
County,  yylll.  496.  —  ['oi-l.DWKD  IN  Morgan 
County  V.  Allen,  103  U.  S.  498. 

Such  a  deposit  of  bonds  docs  not  mean 
that  th»?  identical  bonds  should  pay  for  the 
work,  but  if  tiie  work  was  done  the  bonds 
should  be  delivered.  Thomas  v.  Morgan 
County,  59  ///.  479. 

242.  SiiliHeqiKMit  iiiodittcatioii  of 
sti|Milatutl  cuiiditioiiM.  -Whore  a  coun- 
ty submitted  the  question  of  taking  stock, 
subject  to  conditions,  in  a  railroad,  the  con- 
ditions may  be  removed  by  a  second  sub- 
mission of  the  entire  cpiestion  to  the  people. 
Mercer  County  Su/i'rs  v.  llubbani,  45  ///. 

139 

Till*  conditii  ns  upon  wliich  a  municipal 
subscri;'Mon  is  voted  to  a  railroad  cannot  be 
changed  by  a  subsequent  vote  except  by 
express  st;itutor\  authority.  People  ex  ret. 
V.  W'ovnesi'ille  ^^up'r,  88  ///.  469,  21  Am. 
Ky.  AV/».  339. 

A  subscription  !)y  a  city  to  the  capital 
stfck  of  a  railway  company  prior  to  the  time 
the  ill.  Constitution  of  1870  took  etlect  is 
subject  to  the  conditions  upon  which  the 
snine  was  voted  by  the  people  of  suv,li  city. 
/•.■</7"  v.  People  ex  rel.,  127  ///.  428,  20  A'. 
E.  Rep.  83. 

After  the  present  constitution  took  cPfeci 
a  municipal  corporation  had  no  power  to 
ir.ikc  anv  new  contract  in  respect  to  a  cor- 
porate subscription  in  aid  of  a  railway  com- 
pany, or  to  waive  any  condition  upon  which 
such  subscription  was  voted  before  the  con- 
stitution was  adopted,  or  to  extend  the  same 
for  ilie  performance  of  a  material  condition. 
Kility  V.  People  ex  rel.,  127  ///.  428,  20  ,\  K, 
A'ep.  83.  Falconer  v.  liuffalo  &-  J.  R  Co., 
69  A'.  Y.  491,  18  Am.  Ry.  Rep.  46;  affirm- 
ing 7  Ilun  499.— Distinguished  in  Cherry 
Creek  v.  Becker,  123  N.  Y.  161.    Followed 


IN  People  ex  rel.  v.  Ft.  Edward,  70  N.  Y. 
28:  VVellsborough  v.  New  York  &  C.  K. 
Co..  76  N.  Y.  182.  yuDTED  IN  People  ex 
rel.  7'.  Hutton,  18  Hun  (N.  Y.)  116;  Negus 
V.  Brooklyn,  10  .Xbb.  N.  Cas.  (N.  Y.)  180, 
I  Civ.  Pro.  471,  62  How.  Pr.  291, 

Where  a  county  has  voted  on  a  proposi- 
tion to  lid  in  the  construction  of  a  railroad, 
and  certain  conditions  have  been  submitted 
to  the  voters,  the  company  and  the  board 
of  county  commissioners  cannot  afterwards 
materially  modify  such  conditions.  Doug- 
las County  \.  Walbn'ttge,  38  IVis.  179. 

An  extension  of  time  to  complete  the 
road,  granted  by  the  municipal  hoard,  is  of 
no  validity,  because  of  its  want  of  power  to 
materiijlly  vary  the  contract  authorized  by 
the  vote.  Clark  v.  Roseilale,  70  Miss.  542, 
1 2  So.  Rep.  600. 

In  voting  municipal  aid  to  a  railroad  the 
power  of  the  voters  isexhi'.usted  when  they 
vote,  and  any  subsequent  action  on  their 
part  has  no  validity.  Therefore,  when  aid 
is  voted  a  company  on  certain  conditions 
imposed,  it  is  no  excuse  that  the  c<imi)any 
failed  to  comply  with  the  conditions  "  at  tlie 
request  and  desire  "of  the  inhabitants  of 
the  town.  State  ex  rel.  v.  Daviess  County 
Court,  64  Mo.  30.  — Foi.LowKiJ  in  Cass 
County  7'.  Johnston,  95  U.  S.  360. 

Under  N.  Y.  Act  of  1871,  ch.  925,  towns 
in  voting  subscriptions  to  railroad  stock 
may  impose  terms  as  conditions  precedent 
to  making  the  subscription  and  issuing 
bonds,  such  as  that  the  road  should  be  lo- 
cated and  constructed  through  the  town  ; 
and  where  such  conditions  are  imposed,  the 
commissioners  making  the  subscription  can- 
not substitute  other  conditions.  Falconer 
V.  liuffalo  *-  y.  R.  Co.,  69  A'.  Y.  491,  18 
Am.  Rv.  Rep.  46 ;  ofiirming  7  Hun  499. 

The  provision  o(  the  N.  Y.  Act  of  1870  (ch. 
507,  Laws  of  1870)  authr>rizing  a  railroad 
company  and  commissioners  to  enter  into 
a  written  agreement  as  to  the  delivery  of 
bonds  and  the  purposes  for  which  they 
were  to  he  used  gave  the  commissioners  no 
authority  after  the  act  of  1871  went  into 
effect  to  make  any  such  agreement,  where 
such  a  condition  precedent  had  been  im- 
posed, until  it  was  cotnplied  with.  Fal- 
coner V.  Buffalo  «S-  /.  A'.  Co.,  69  N.  Y.  491, 
18 //w.  Ry.  Rep.  46;  affirming  7  Hun  499. 

Prior  to  the  auoption  of  the  III.  Constitu- 
tion of  1870  a  proposition  to  subscribe 
(100,000  to  the  stock  of  a  railway  company, 
upon   condition   that  the  company's  road 


MUNICIPAL   AND   LOCAL   AID,  24a,  244. 


648 


should  be  located  ilirou^h  thu  county,  and 
its  construction  conuncnced  within  nine 
months  and  completed  by  the  first  day  of 
June,  1872,  was  submitted  tu  a  vote  of  the 
people  of  the  county  and  carried.  In  Feb., 
1871,111c  county  board,  by  an  order,  extend- 
ed the  time  for  commencing  the  work  on  the 
road  10  Jan.  1,  1874.  On  Nov.  12,  1877,  the 
county  board  made  another  order,  under 
which  t!ic  bonds  were  issued,  hut  the  work 
on  the  road  was  not  commenced  before  Jan., 
1877,  and  not  comple'.od  before  Nov.  i, 
1879.  //<■/</,  that  the  county  l)oar(l  had  no 
authority  to  extend  tlie  time  of  commencing 
and  completing  the  road,  and  that  the 
botuls  so  issued  upon  the  county's  subscrip- 
tion were  void,  and  a  tax  levied  to  pay  in- 
terest on  them  illegal,  /■iic/ifson  v.  I'eople 
ex  rel.  ,115  ///.  450,  5  A'.  E.  Kifi.  121.  luiiiy 
v.  People  ex  rel.,  127  ///.  418,  20  X.  E.  Hep. 

24:i.  U.seof'otli(>r  roiul  tocoiiiph'te 

line.— Where  the  real  object  of  a  city  siib- 
sci  iption  to  railroad  stock  is  to  obtain  rail- 
road connection  between  certain  towns,  the 
company  does  not  forfeit  the  subscription 
by  adopting  a  section  of  another  road 
already  built,  nor  by  making  a  change  in 
the  route,  for  a  few  miles,  from  the  one 
originally  proposed.  Slocklon  \jf  /'.  N.Co. 
v.  Stockton,  51  Ctil.  328,  12  Am.  Ky.  /I'l/.  85. 
—  UisTiN(iuisHiN(;  Virginia  &  T.  K.  Co. 
V.  Lyon  Gjunly  Com'rs,  6  Nev,  71.  -Al'- 
l>RovKi)  IN  Missouri  I'ac.  R.  Co.  r.  Tygard, 
84  Mo.  263.  54  Am.  Rep.  97.  Di.stin- 
<iUi.siiKi>  IN  Lamb  v.  Anderson,  54  Iowa  190. 

A  township  voted  a  subscription  to  a  rail- 
way with  a  condition  that  it  was  not  to  be 
paid  until  the  company  should  run  its 
first  locomotive  "  over  its  projected  line  of 
road,  and  from  Pekin,  III.,  or  from  Morris, 
111.,  through  Clayton  township."  I/ehl,  that 
the  running  of  the  company's  trains  over 
tlie  road  oi  another  company  for  the  dis- 
tance of  five  or  six  miles,  under  a  lease  from 
siich  other  company,  liable  to  be  terminated 
upon  one  year's  notice,  and  by  that  means 
connecting  the  townshij)  with  Pekin,  is  not 
a  substantial  compliance  with  the  condition 
of  the  subscription.  People  ex  rel.  v.  Clay- 
ion.  88  ///.  45.  21  Am.  hy.  Rep.  281. 

Where  atax  is  voted  payable  on  conditio') 
that  the  road  is  runstructcd  to  a  certain 
point,  surh  condition  is  not  fulfilled  by  con- 
structing a  part  and  purchasing  the  re- 
maimler.  Meeker  v.  Ashley,  5^  Im>a  188,  y 
A'.  W.  Rep.  1 24. 


A  condition  in  a  subscription  by  a  city  to 
railroad  stock  requiring  the  road  to  be  com- 
pleted, ii'oned,  ati<l  ecjuipped  by  a  certain 
time  to  the  city,  and  to  have  the  same  open 
for  transportation  of  passengers  and  freight, 
is  substantially  complied  with  by  completing 
the  road  to  a  certain  point  on  another  road, 
and  contracting  for  the  use  of  the  otiier 
road,  by  which  it  runs  its  trains  regularly  to 
the  city.  State  ex  rel.  v.  Clark,  23  Minn. 
422.  Vount,^  V.  U'e/ister  City  &^  S.  IV.  R. 
Co.,  75  Itnua  140,  39  N.  W.  Rep.  2y\. 

XI.  DONATIONS;  BONVaES. 

244.  In  (r«iicral.*-The  provisions  in 
the  charter  of  the  Illinois  Southeastern 
railroad  that  no  town  could  donate  to  the 
company  an  amount  exceeding  $30,000  was 
removed  by  the  amendatory  act  ol  Feb.  24, 
i86y.  Pana  v.  Bowler.  12  Am.  &*  t'-tig.  R. 
Cas.  563,  107  I/.  S.  529,  2  Slip.  Ct.  Rep.  704. 

In  ascertaining  the  amount  of  donations 
al.a'ady  made  by  a  county  to  railroads  or 
other  works  of  internal  improvement,  for 
the  purpose  of  seeing  whether  another  pro- 
|>osed  donation,  aggregated  with  those  al- 
ready made,  would  be  within  the  limit,  un- 
paid interest  due  on  such  previous  donation 
should  not  be  considered.  Jones  v.  Hurl- 
hurt,  13  Neb.  125,  ^3  A'.  //'.  Rep.  5. 

The  T'-':;.  Act  of  April  12,  1871,  which 
cmpo  'n  c.l  municipal  corporations  to  make 
donations  to  railway  companies,  practically 
became  a  part  of  the  charters  of  cities  and 
towns  which  were  granted  prior  to  the  pas- 
sage of  that  jict.  Matlry  v.  Cox,  73  Tex. 
538,  II  5.  IV.  Rep.  541. 

Subsection  4  of  section  471  of  36  Vict.  c.  48 
must  not  be  construed  as  authorizing  aid 
only  to  such  railroads  as  are  mentioned  in 
subsection  r  of  that  section.  Canada  Atl. 
R.  Co.  V.  Ottawa,  8  Ont.  183. 

At  a  meeting  of  a  township  council  the 
reeve,  who  was  in  the  chair,  refused  to  put 
a  nu>tion  which  had  been  duly  made  and 
seconded  to  authorize  a  bonus  of  $50,000  to 
a  railway,  whereupon  the  members  voted 
on  the  motion  without  its  being  put  by  the 
the  chairman,  and  a  majority  were  in  favor  of 
the  motion.  I/ehl,  that  the  reeve  had  no 
right  to  refuse  to  put  the  motion,  and  that 
the  vote  was  proper  and  effectual.  lirock  v. 
Toronto  &»  A'.R.  Co.,  17  Grant's  Ch.  (C.  C.) 
425- 


*  Donations  or  loans  of  credit  by  municipal 
corporations  to  railroads,  in  general,  see  note, 
59  Am.  Dkc.  783. 


(.41 


MUaICIPAL   and    local   aid,  245,240. 


:!1 


- 


U|)nii  the  petitiot)  of  the  freclioMers  of  a 
township  to  the  hoard  of  countj'  commis- 
sioners, seitiiif;  fortli  that  a  certain  railroad 
company  was  duly  orj^anized,  that  the  line 
of  the  railroad  of  the  company  ran  through 
the  township,  and  the  construction  of  the 
railroad  would  be  of  great  Ijeiielit  to  the 
township. and  praying  a;;  appropriation  of  a 
certain  sum  of  money,  not  exceeding  two 
l)er  cent.  (»f  the  taxable  property  of  the 
township,  to  aid  in  the  construction  of  the 
railroad,  the  said  board  ordered  an  election 
for  the  purpose  of  taking  the  votes  of  the 
legal  voters  of  the  township  upon  the  sub- 
ject of  ai)propriaiing  said  sii'.  by  said  town- 
ship to  aid  in  the  construciion  of  said  rail- 
road ;  anfl,  n[)on  the  election  so  ordered 
resulting  in  favor  of  the  appropriation,  the 
board,  at  the  session  at  which  it  determined 
tlie  amount  to  be  charged  for  county  pur- 
poses for  the  year  1873,  ordered  that  a  tax 
be  levied,  of  a  certam  per  cent.,  to  be  col- 
lected on  all  taxable  property  of  the  town- 
ship, in  all  respects  as  other  taxes  are  col- 
Iccieil  for  state  and  county  purposes.    Held: 

( 1 )  thai,  the  intention  being  manifest  to  raise 
the  money  before  the  subscription  or  dona- 
tion should  be  made,  the  action  of  thet)oard 
was  not  111  violation  of  section  6,  article  10,  of 
the  Ind.  constitution,  prohibiting  subscrip- 
tions unless  the  same  be  paid  for  at  the  time ; 

(2)  that  it  sufficiently  appeared  by  the  peti- 
tion that  the  aid  was  to  be  given  forthe  con- 
struction of  the  railroad  in  the  township 
(^//<^f;v,  whether  money  given  by  a  township 
111  aid  of  the  construction  of  a  railrf)ad  must 
be  expended  upon  that  part  of  the  road 
lying  in  that  township) ;  (3)  that,  although 
the  road  was  already  constructed  tlirough 
the  township  and  the  cars  were  running 
thereon,  if  the  road  was  not  thoroughly 
ballasted,  and  it  did  not  appear  that  the  full 
amount  of  aid  proposed  was  not  required  to 
complete  the  road  througli  the  township, 
the  question  was  not  raised  whether  or  not 
the  aid  was  authorized  for  the  construction 
of  the  road  in  the  township.  (4)  that  the 
praver  of  the  petition  was  in  conformity 
with  the  statute  requiring  the  vote  "  to  be 
taken  upon  the  subject  of  appropriating 
money  by  such  <;ouniy  or  by  such  township 
for  the  purpose  of  aiding  in  the  construction 
of  such  railroad  as  prayed  lor  in  said  peti- 
tion," and  that  the  mode  of  the  appropria- 
tion of  the  money,  by  subscription  or  by 
donation,  need  not  be  specified  in  the  peti- 
tion or  the  order  of  the  board,  or  be  sub- 


mitted to  the  vote ;  (5)  that  the  intention  was 
sufficiently  expressed  to  levy  the  tax  for  the 
year  1873.     Petty  v.  Myers,  49  Ind.  1. 

245.  Public  c'liariU'tcr  «tt  eiiter- 
I»rls««.— In  the  eye  of  the  law  railroads  are 
modern  public  highways,  created  to  serve 
public  uses,  and.  for  public  purposes,  enjov 
privileges  and  franchises  which  partake  of 
the  nature  of  sovereignty.  A  donation  of 
money  or  b(mds  for  the  purpose  of  securing 
the  construction  of  a  railroad  is  a  donation 
for  a  public  purpose,  and  the  legislature  may 
authorize  a  municipal  corporation  to  issue 
its  bonds  to  a  company  for  such  a  purpose 
and  to  levy  and  collect  taxes  to  pay  the  same. 
Davidson  v.  Ramsey  County  Coni'rs,  18 
Minn.  482  (Gil.  432).— Kkkkrring  to 
Gelpcke  7'.  Dubuque,  1  Wall.  (U.  S.)  175; 
Meyer  ?'.  Muscatine,  i  Wall.  384 ;  Stewart 
V.  Folk  County  Siip'rs,  30  Iowa  9. 

Where  a  railroad  is  owned  by  a  private 
corporation,  with  the  right  of  eminent  do- 
main, the  "  public  use"  consists  in  the  right 
of  the  public  to  the  carriage  of  persons  and 
pro[)orty  for  a  proper  consideration,  and  in 
the  power  of  the  state  to  control  the  fran- 
chise and  limit  the  tolls.  Miit  such  "  public 
use  "  will  not  support  taxation  to  enable  a 
county  to  make  a  donation  to  such  a  cor- 
poration. Whiting  V.  Sliehoyi^au  &*  /'.  dtt 
L.  A'.  Co.,  25  Wis.  167.— DisAi'PJ.ovF.ii  in 
Leavenworth  County  Com'rs  ?'.  Mil'e;  7 
Kan.  479.  Not  followed  in  Nort'iern 
Pac.  R.  Co.  7'.  Roberts,  42  Fed.  Rep.  734. 
Quoted  in  Attorncv-General  7'.  Chicago  & 
N   W.  R.  Co.,  35  Wis.  425. 

240.  l>oiintioii  of  Kwaiiip  lnii<lH.— 
The  charter  of  the  Mt.  Vernon  R.  Co., 
passed  Feb.  15,  1855.  provided  that  any  coun- 
ty through  which  that  road  might  run,  and 
every  county  through  which  any  other  rail- 
road might  run  with  which  the  Mt.  Vernon 
railroad  might  be  joined,  connected,  or  in- 
tersected, were  authorized  to  aid  in  the  con- 
struction of  the  same.  In  1859  the  company 
issued  certain  construction  bonds,  to  secure 
which  the  county  of  Wayne  conveyed  its 
swamp  and  overflowed  lands  in  trust.  The 
railroad  did  not,  and  could  not  under  its 
charter,  run  through  Wayne  county,  nor  did 
any  other  railroad  run  through  that  county 
with  which  that  road  wa*!  ioined.  connected, 
or  intersected,  //eld,  that  the  condition 
upon  which  the  county  might  aid  in  the 
construction  of  the  railroafl  did  not  exist, 
and  the  deed  of  trust  executed  for  that 
purpose  was  made  without  power  or  author- 


R. '.NICIPAL   AND   LOCAL   AID,  247. 


645 


t 

:t;'  'I 


ity,  and  was  therefore  void.  (Dickey,  J., 
dissenting.)     Scaler  v.  King,  no  ///.  456. 

A  county  and  a  railroad  company  entered 
int<j  a  contract  reciting  that  the  county  sold 
10  tlic  company  its  svvunip  lands  at  tlie  price 
of  S>-3  per  acre,  that  a  deed  of  the  lands 
to  the  company  had  been  placed  m  escrow, 
that  the  ('oinpany  proposed  to  do  certain 
work,  to  drain,  reclaim,  and  protect  said  land 
fnr  a  sum  equivalent  to  the  price  of  the  land, 
and  th.it  said  proposed  work  would  open  up 
lot  settlement  antl  cultivation  a  large  por- 
tion of  the  southern  part  of  the  county,  and 
also  promote  the  health  of  the  county  by  a 
drainaj^e  of  said  lanils.  The  contract  fur- 
ther provided  that,  m  consideration  of  the 
;>reniises  and  other  valuable  considerations, 
liie  county  agreed  to  pay  the  company  the 
price  of  the  lands  so  sold,  and  that  a  deed 
therefor  had  been  phiced  in  escrow,  to  be 
delivered  to  the  company  on  the  completion 
ol  the  work.  The  company  on  its  part 
agreed  to  build  a  levee  across  the  swamp  of 
a  si)ecil"ied  width  and  to  operate  a  railroad 
thereon,  and  also  to  open  ct^ntinuous 
ditches  along  said  levee  on  both  sides,  if 
necessary  to  drain  the  land,  the  company  to 
have  the  right  to  leave  openings  in  the  em- 
bankment wherever  it  saw  fit,  putting  tres- 
tle-work in  place  thereof,  and  agreeing  to 
dram  tlie  surface  water  when  necessary  into 
the  places  where  it  erected  tresile-wj)rk. 
//«•/(/,  that  the  contract  was  nierely  a  dona- 
lion  o'  the  iands  to  the  company  in  consid- 
eration of  building  and  operating  its  road, 
and  not  a  contract  to  (teed  swamp  laiuls  as 
payuient  for  reclaiming  tiiem.  Oipe  Gi- 
ranieitii  S.  //'.  A".  Co.  v.  Hatton,  102  }1/<>.  45, 
14  .s'.  ;»'.  Rep.  763. 

l!-i7.  l>('l<>t;Htioii  of  uiitlMirity  by 
U'P:islatiir(>.  Subscripiions  for  stoi.1: 
eini.il  with  donations  are  outside  of  the  oi- 
dmarv  purposes  of  inuiii(i[)al  corporation."., 
and  the  design  of  both  is  ilie  same.  It  is  to 
aid  lilt"  construction  of  a  public  highw/ay, 
and  the  jnomotion  of  ;i  public  use.  The  m- 
liiicenK'iit  to  make  a  subscription  may  be 
greater  than  the  inducement  to  make  the 
<ioiiaiioii,  but  ill  both  the  warrant  for  the 
exercise  of  the  power  is  the  same.  While 
it  is  not  competent  (or  the  legislature  to 
pass  a  mandatory  statute  ie(iiiiring  a  munic- 
ipal corpor.ition  to  contribute  to  the  con- 
struction of  a  railroad,  a  merely  enabling 
act  which  authorizes  liie  issue  and  donation 
of  bonds,  if  ajjpioved  by  a  popular  vote,  is 
lint  open  to  this  objection,  and  is  a  eonsiitu- 


tional  exercise  of  the  legislative  power. 
(Jui-fiisliiny  V.  Culver,  19  Wall.  {(/.  S.)  83.— 
Rkakkirmino  Chicago,  B.  &  Q.  R.  Co.  7/. 
Otoe  County,  16  Wall.  667  ;  Olcott  v.  Fond 
du  Lac  County  Sup'rs,  16  Wall.  678.— 
Harlir  Tfi.  v.  KePtwch.-.A,  3  //;;/.  tS-  ling. 
J\.  Cas.  &2.  103  {'  .s".  562.  Olco/l  v.  Fu^til 
du  Lac  County  Sup'rs,  16  Wall.  (U.  S.) 
678.  — l)i.sAi'i'Kt)"i.NG  Whiting  v.  Sheboy- 
gan &  F.  du  L.  R.  Co.,  25  Wis.  188.— Ap- 
PLIKD  i.\  Duanesbiirgh  v.  Jenkins,  57  N.  Y. 
177.  DisTiNUUlsHKi)  IN  People  ex  rel.  v. 
Batchcllor,  53  N.  Y.  12S.  Foi-H)WKU  in 
Pine  Grove  Tp.  v.  Talcoit,  19  Wall.  666. 
Reakkirmku  in  Queensbury  7/.  Culver,  19 
Wall.  83. 

Counties,  cities,  towns,  and  townships 
might,  under  the  ill.  Constitution  of  1848, 
be  empowered  by  general  law,  by  their 
charters,  or  the  charters  of  railroad  com- 
panies, to  subscribe  for  stock  in  such  com- 
panies, or  even  to  make  donations  to  aid  in 
constructing  railroads.  I'iniin  v.  Allan, 
107  ///.  505. 

A  legislative  grant  of  power  to  a  town- 
ship to  make  donations  to  railroads  and  to 
issue  bonds  for  the  same  is  not  invalid  be- 
cause it  fails  to  pnjvide  for  determining  the 
amount  and  terms  of  tiic  donation,  or  the 
aniount  of  bonds  to  be  issued,  their  terms, 
<.nd  the  manner  of  their  execution.  Xn'an- 
/,'<■  Sa7'.  Hank  v.  Douglas,  5  ///.  App.  579. 

IJniler  the  Ind.  Act  of  May  4,  1869,  "to 
enable  cities  to  aid  in  the  construction  of 
railroads,"  etc.  u  Rev.  St.  1876,  p.  299),acity 
incr)rp(jrated  under  the  general  laws  of  the 
state  may,  upon  the  petition  of  a  majority 
of  resident  freeholders,  make  a  donation  of 
bonds  of  the  city  to  a  railroad  company,  to 
aid  the  latter  in  constructing  its  railroad 
through  or  into  the  corporate  limits  of  such 
city.     Wilkinson  v.  Peru,  61  Ind.  r. 

Where  a  city  has  donated  bonds  in  aid  of 
a  railway,  under  Ind.  .'\ct  of  1869,  on  a  pe- 
tition <  f  a  majority  of  its  resident  freehold- 
ers, and  a  tax  is  levied  to  pay  interest  on  the 
bonds  and  to  create  a  sinking  fund  to  pay 
the  principal,  a  taxpayer  can  only  enjoin 
the  collection  of  the  tax  on  grounds  consti- 
tuting a  valid  legal  defen--.(?  to  the  payment 
of  the  bonds  ill  the  hands  >>■  the  present 
lujlders.      Wilkinson  v.  /'<•>•«,  61  /nd,  i. 

The  term  "donation,"  as  tise<l  in  the 
above  statute,  means  an  absolute  gift  or 
grant  made  without  condition  or  •■onsidera- 
tion.      Wilkinson  v.  /'eru,  61  /nil.  i. 

A  city  has  authority  under  the  Neb.  stat- 


I 


s 


11  • 


G46 


MUNICIPAL  AND   LOCAL  AID,  248. 


is 


me  to  I  fjnate  to  one  or  more  railroads  or 
othci  work'*  of  internal  improvement  its 
bonds  not  to  exceed  in  the  agjjrejjate  ten 
per  cent,  of  the  assessed  valu;ition ;  and 
bonds  issued  for  waterworks  owned  by  the 
city  or  other  purposes  are  not  to  be  com- 
puted in  making  up  the  aggregate  winch 
the  city  may  donate.  State  ex  rel.  v.  Bah- 
cock,  19  A'eb.  230.  27  N.  IV.  Rep.  y8.— Dis- 
tinguishing Keineman  v.  Covingtoii,  C.  & 
U.  H.  R.  Co..  7  Neb.  310.  Following 
Union  Pac.  R.  Co.  v.  Colfax  County 
Coin'rs,  4  Neb.  450. 

The  authority  for  a  city  to  issue  bonds  to 
.  aid  in  the  construction  of  railroads  or  other 
works  of  internal  improvement  is  expressly 
conferred  by  section  i,ch.  45,  Neb.  Comp. 
St.  The  word  "  aid  "  as  used  in  the  statute 
may  include  donations.  State  ex  rel.  v. 
Jiabcock,  19  Neb.  230,  27  N.  IV.  Rep.  98. 

One  section  of  a  railroad  charter  provided 
that  towns,  cities, and  counties  might  either 
subscribe  or  donate  money  to  the  roar  md 
issue  bonds.  The  next  section  provided 
that  a  certain  county  might  subscribe  not 
to  exceed  $80,000,  but  said  nothing  about 
donations.  The  county  subscribed  $80,000 
and  donated  $75,000.  Held,  in  an  action  on 
coupons  from  the  donated  bonds,  that  the 
county  had  authority  to  i.ssue  them ;  but  if 
it  be  conceded  it  had  not,  the  coupons  were 
collectable  where  it  appeared  that  the  dona- 
tion was  authorized  before  the  subscription. 
Moultrie  County  v.  Fairfield,  7  Am.  i^  Eiig. 
R.  Las.  194,  105  17.  S.  370. 

The  charter  of  a  railroad  company  au- 
thorized the  raising  by  towns  of  money  by 
tax  and  subscription  to  the  capital  stock  of 
the  corporation,  and  issuing  bonds  in  pay- 
ment of  the  same,  upon  an  alFirmative  vote, 
and  a  subsequent  section  of  the  charter  pro- 
vided that  donations  might  be  made  and 
bonds  issued  in  the  manner  "  hereinbefore 
provided."  //eld,  that  the  preceding  sec- 
tions relating  to  subscriptions  were  re- 
ferred to  and  adopted  as  the  proper  mode 
for  making  a  donati(jn,  and  that  the  statute 
was  to  be  regarded  as  meaning  the  same 
thing  as  if  the  p{)wer  \.o  make  donations 
had  been  inserted  in  the  preceding  sections 
rc'liiting  to  subscriptions.  /hiUi^las  v.  Xian- 
tic  Sav.  luiuk.  3  Am.  &»  /'."««.'•  /»'•  Cas.  54, 
97  ///.  22S.  " 

24 H.  Fowur  to  itiakc  donation 
iuu«t  be  «'xiH'««Mly  pranted. — T!u-  rule 
i-.;  well  settled  that  there  is  no  mliereiit 
power  in  municipal  orporations  tu  aid  in 


the  construction  of  railroads,  either  by  be- 
coming subscribers  to  the  capital  stock  of 
the  railroad  company  or  by  making  dona- 
tions to  such  company  of  money  or  bonds, 
but  such  power  can  be  given  only  by  ex- 
press legislative  provision,  and  the  author- 
ity, when  conferred,  must  be  strictly  pur- 
sued.    Choisser  v.  People  ex  rel..  140  ///.  21, 

29  X.  A".  Rep.  546.  //arney  v.  Jitdiaiiapolii, 
C.  &^  /).  R.  Co.,  32  //id.  244. 

Where  a  subscription  by  a  county  of  $100,- 
000  to  the  capital  stock  of  a  railroad  com- 
pany is  authorized  Ijy  a  vote  of  the  people, 
if  the  company  enters  into  a  contract  with 
the  county  board  by  which  the  latter  sells 
its  sock  to  the  company  for  S^o.csoo  of  its 
bonds,  and  "ssucs  only  $70,000  of  bonds,  this 
will  amount  to  a  donation  by  the  county 
of  $70,000  of  it:;  bonds  to  the  railroad  com- 
pany, and  such  bonds,  as  between  the 
county  and  the  railroad  company,  will  be 
void.     Sampson  v.  /'eople  ex  rel.,  140  ///.  466, 

30  N.  E.  Rep.  689.  Choisser  \ .  People  ex 
rel.,  140  ///.  21,  29  A.  /:.  /\ep  546.— FoL- 
LOWKl)  IN  Poit  V.  Pulaski  County,  49  Fed. 
Rep.  628,  9  U.  S.  App.  I,  I  C.  C.  A.  405. 

A  statute  empowered  a  city  to  loan  its 
credit  to  a  railr<»ad  company  by  issuing 
bonds.  Subsequently  the  statute  was 
amended  so  as  to  authorize  the  mayor  and 
city  council  to  execut-i  and  deliver  the 
whole  or  any  part  of  the  bonds  which  had 
been  voted  to  the  company,  "  upon  such 
terms  as  may  be  agreetl  on  by  the  parlies." 
//eld,  that  this  did  not  authorize  a  donation 
of  the  bonds,  but  merely  gave  the  munici- 
pal officers  unlimited  riiscretion  in  fixing 
the  terms  upon  which  the  bonds  should  be 
delivered.  /\Oi;an  v.  IVatertoion,  30  ///.». 
259, 8 /Iw. />.  Rep.  20,— Following  Wliii- 
ing  7'.  Sheboygan  &  F,  du  L.  R.  Co.,  2:, 
Wis.  167. 

An  act  incorporating  a  municipality  gave 
It  all  the  powers  of  towiisliips  under  the 
general  municipal  law,  and  in  other  sections 
authorized  the  rnuncil  to  make  assessments 
for  necessary  expenses,  and  for  ilu;  estab- 
lishment of  a  loi  k-up  house,  iind  the  salary 
of  a  constable.  Held,  thiit  this  language 
did  not  prohii)it  the  council  from  |)a.ssing  a 
bylaw  granting  a  bonus  to  a  railway  com- 
pany, as  the  right  of  doiiif,'  so  when  ex- 
ercised rendered  the  payments  under  it 
necessary  expenses.  The  fact  that  the  1  lil- 
way  intended  to  be  benefited  was  not  named, 
and  was  really  not  in  existence  when  the 
vote  on  the  question  was  to  be  taken,  con- 


MUNICIPAL    AND    LOCAL   AID,  240^252. 


Ot^ 


Rtituted  no  objection  to  the  piissinji  of  a  l)y- 
law  for  the  purpose.  I'iikus  v.  S/iuitia/i, 
22  Grant 's  C/t.  ( U.  C. )  410. 

24!>.  Stilt nt«»ry  proviMioiiH  to  liw 
Htrii'tly  pursued.— Under  a  charter  of  a 
railway  authonziii;^  any  town  to  donate  any 
sum  not  exceed inj{  $30,000  upon  an  alfirnia- 
tive  vole,  and  providing  that  no  election 
should  be  held  until  the  company  should 
tile  with  the  county  and  town  clerks  a  prop- 
osition to  the  inhabitants  of  the  town,  and 
publish  the  same,  such  (iroposition  is  a  nec- 
essary preliminary  step  to  calling  an  elec- 
tion, and  without  such  initiatory  step  the  do- 
nation could  not  \<c  sustained.  Lippincott 
V.  Pana,  92  /'/.  24.— Foi.i.owK.i)  IN  Fairfield 
7'.  (Jallatin  County,  100  U.  S.  47. 

j{y  the  111.  Constitution  of  1870 all  munici- 
pal subscriptions  and  donations  arc  abso- 
lutely prohibited  except  such  as  were  au- 
tlioiized  under  prior  laws  by  a  vote  of  the 
p< Dpie,  and  these  must  be  executed  strictly 
a.:cording  to  the  terms  in  which  they  are 
authorized.  It  must  be  upon  the  terms  and 
conditions  as  voted.  A  vote  authorizing  a 
subscription  will  not  authorize  a  donation 
of  municipal  bonds.  C/ioissi-r  v.  People  ex 
rel.,  140  Hi.  21,  29  .\'.  K.  l\ep.  546. 

The  effect  of  the  statute  34  Vict.  c.  48 
(f)).  apart  from  any  elTcct  it  migl't  have  of 
recognizing  the  existence  of  ilie  (Jrand 
junction  railway  company,  was  not  to  legal- 
ize the  by-law  of  Peterborou);h  granting  a 
bonus  in  favor  •)f  the  company,  but  was 
merely  to  make  the  by-law  .; ,  valid  as  if  it 
had  been  read  a  third  time,  and  as  if  the 
municipality  had  had  power  to  give  a  bonus 
to  the  company  ;  and,  there  being  certain 
other  defects  in  the  said  by-law  not  cured  by 
the  said  statute,  the  appellants  could  not 
recover  the  bonus  from  the  defendants. 
Grand  Junction  A'.  Co.  v.  Petir/ioroiit^/i 
Coi/nty.a  Ciin.  Sup.  Ct.  76;  ojffirminii;  h  Out. 
App.  339.  C,viiii!<i  At/.  A'.  Co.  V.  O/tmifa,  8 
Out.  183.  See  also,  Canada  All.  A".  Co.  v. 
O/tawa,  12  Can.  .'<up.  Ct.  365;  affirniint;  12 
(';//.  .///.  234,  w/i/t/i  ajfirnis  8  Ont.  201. 

tS50.  I>onatioii  not  iiutlioriKoil  !>>- 
|»o\vt>r  to  sulisrrilM'.  — .\  statute  or  char- 
ter (if  a  railroad  company  authorizing  the 
< ouiities,  cities,  etc.,  through  or  near  wliirh 
tlie  railroad  may  run  to  subscribe  to  the 
I'apital  stock  of  such  company  on  certain 
i(.strictif)ns  and  conrlitions  will  not  iiiitlior- 
ize  a  donation  by  a  municipal  corporation 
ti  aid  in  the  construction  of  a  railroad. 
'Ill'-  power  to  aid  in  building  a  railroad  by 


subscribing  for  a  part  of  its  capital  stock 
doe.s'  not  include  or  even  imply  tin;  power 
to  make  a  donation.  C/iotsser  v.  People  ex 
rel. ,  1 40  ///.  21,29  ^V.  E.  Rip.  546. 

Where  a  vote  of  the  people  of  a  county 
authorized  the  county  commissioners  to 
subscribe  for  stock  in  a  railroad  company — 
//t/(/,  that  such  authority  did  not  empower 
the  commissioners  to  donate  the  bonds  of 
the  county  to  a  railroad  company.  Hamlin 
V.  Meadville,  6  Xeh.  227. 

251.  Clioieu  lM>tw<><Mi  doiintion 
ami  Mulwrrlptloii.— Under  the  statutes  of 
Indiana,  the  mere  fact  that  the  inhabitants 
of  a  township  have  subscribed  to  stock  in 
aid  of  the  construction  of  a  railway  does  not 
entitle  the  company  to  demand  the  money 
subscribed  as  a  donation  ;  but  the  taxpay- 
ers have  a  right  to  determine,  by  their  peti- 
tion and  their  votes,  whether  the  aid  voted 
shall  be  by  way  of  taking  .stock  in  the  com- 
pany or  by  way  of  donation.  Hamilton 
County  Com'rs  v.  State  e.v  rel,,  36  Am.  &* 
Eng.  K,  Cas.  210,  115  /nil.  64,  4  A'.  E.  Pep. 

5S9,    17   A'.    E.  Pep.    855.— DlSTINOUISIIlNG 

Scott  T'.  Hansheer,  94  Ind.  i  ;  Jussen  7>. 
Lake  County  Com'rs,  95  Ind.  567;  Marion 
County  Com'rs  v.  Center  Tp.,  105  Ind.  422; 
Mount  Vernon  ?'.  VIovey,  52  Ind.  563. 

252.  Constitutional  iniiiliitiouM 
and  rc'strlrtlons.— Under  the  Colo.  Con- 
stitution,  art.  11  ^  2,  neither  the  state,  nor 
any  county,  city,  town,  township,  or  school 
(li:trict,  can  make  any  donation  or  grant  to, 
or  in  aid  of,  or  become  a  subscriber  or  share- 
holder in  any  corporation  or  company. 
Colorado  C.  K.  Co.  v.  Lea,  5  Colo.  192. 

The  111.  Constitution  of  1870  took  away 
the  power  of  municipalities  to  issue  bonds 
in  aid  of  railroads.  A  power  granted  in 
1867  to  make  .1  donatiou  to  a  railroad  was 
taken  away  by  the  constitution  of  1870.  and 
bonds  issued  after  the  l.itter  date  are  void. 
Concord  v.  Portsinoutli  S.n'.  lt',in/,\  92  I'.  .S". 
625.— OVKKKII.K.I.  l\  I'airlicld  7'.  Ciallatin 
County,  100  U.  S.  47  ;   Kniield  7'.  Jordan,  1 19 

u.  s.  r)So. 

The  object  of  the  proviso  to  the  .section 
of  the  new  constitution  •■elating  to  munici- 
pal subscriptions  was  to  save  such  subr.crip- 
tions  and  donations  voted  in  aifl  of  rail- 
roads and  private  corpoiaiions  prior  to  its 
adoption.  The  saving  clause,  by  constinc- 
tion,  embraces  donations  as  well  as  sub- 
scriptions, and  places  them  upon  the  sanu; 
footing.  C/iicago  &^  I.  P.  Co.  v.  /''inckmy. 
74    ///.    277.— DlSTINGULSfKU    IN    MMdle- 


CAS 


MUNICIPAL  AND   LOCAL   AID,  233. 


port  V.  i^tna  Life  Ins.  Co..  82  III.  562.  Foi.- 
l.oWKD  IN  Fairfield  7'.  Gallatin  County,  100 
U.  S.  47;  Moultrie  County  ?'.  Fairfield,  105 
U.  S.  370. 

The  provision  in  the  Neb.  constitution 
r  -quiring  the  secretary  and  auditor  of  state 
to  'nilorse  on  bonds  issued  as  a  donation  to 
a  railroad  or  other  work  of  internal  im- 
provement that  such  bonds  were  "  issued 
|)ursuant  to  law  "  requires  no  legislation  to 
carry  it  into  effect,  but  it  is  the  iluty  of  such 
olficers  in  a  proper  case  to  make  such  in- 
dorfiemc-it.  The  provision  applies  to  all 
b(>nds  issued  for  that  purpose,  and  not  alone 
to  the  five  per  cent,  in  excess  of  tlie  ten  per 
cent,  first  issued.  S/(t/i'  e.v  rcl.  v.  liabcock, 
19  i\fb.  230,  27  i\\  VV.  Rep.  98. 

A  conveyance  of  its  land  by  a  county  as  a 
donation  to  a  railroad  company  is  void  ;  and 
the  VVisco.  sin  legislature,  havir<r  no  power 
to  authorize  such  donation  in  the  first  in- 
stance, cannot  by  a  subsequent  statute  vali- 
date the  conveyance.  Ellis  v.  Northern  Pac. 
K.  Co.,  77  Wis.  114,  45  A'.  W.  Rep.  811.— 
Following  Whiting  v.  Sheboygan  &  F.  du 
L.  R.  Co.,  25  Wis.  167. 

The  latest  decision  of  a  state  supreme 
court,  holding  that  the  citizen  might  con- 
stitutionally be  ta.\ed  and  the  proceeds 
given  as  a  gratuity  or  donation  to  aid  in 
the  building  of  the  roads  of  private  railway 
companies,  will  be  followed  in  the  federal 
courts,  although  that  decision  overrules  a 
long  and  settled  course  <if  adjudication  by 
the  same  tribunal  the  other  way,  and  the 
prior  decisions  are  regarded  as  sound  expo- 
sitions of  the  constitution  of  the  state.  AV//^ 
V,  Wilson.  I  J)ill.(U.  S.)  555.— QuoTiN<; 
Smitii  7>.  Henry  County.  15  Iowa  385; 
Gelpcke  7'.  Dubuque,  i  Wall.  (U.  S.)  175; 
Stewart  ?'.  Polk  County  Sup'rs,  30  Iowa  9. 
QuoTiNC.  ANP  KKVii-.wiNC  McClure  7>. 
Owen.  26  I.  iva  243.  Rk.vif.WINC.  Ten  Kyrk 
7'.  Keokuk.  15  Iowa  4S''> ;  Chamberlain  v. 
liuilington.  19  Iowa  y)^;  Hanson  7'.  Ver- 
non. 27  Iowa  28,— APPROVKD  IN  Leaven- 
worth Count',-  (^iin'rs?'.  Miller,  7  Kan.  479 

.\  sta'c  constiJinlon  provided  that  coim- 
ties  mi:;'l't  'iMike  <lon.itions  to  railroads  not 
to  excec.  10  per  -rent,  of  their  property  on 
a  in.jority  vtc,  and  not  to  exceed  15  jier 
cert,  on  a  twi -thirds  vote.  The  statutes  of 
the  slate  pro\  ided  that  such  donation  inii;lit 
be  voted  not  to  exreed  10  percent.  //<•/</. 
that  the  consiitution  did  not  authorize  a 
lonation  of  over  to  per  cent,  without  legis- 
lative  authority,  even   though    the   people 


gave  the  constitutional  two-thirds  vote  in 
favor  of  the  same.  Dixon  County  v.  Field, 
1 5  Am.  «S-  Evj;.  A'.  Cas.  595,  \\\  U.  S.  83.  4 
Sup.  C/.  TiV/i.  315.— Approving  Reineman 
V.   Covington,  C.  &  B.  H.  R.  Co.,  7   Neb. 

3'0- 
ii«"j;i.    Pu|Milni*    vt.'Ui     iiecossnry.— 

Donations  mav  be  ma(\'  by  counties  and 
other  municipalities  in  Illinois  to  railroads, 
after  the  adoption  of  the  constitution  of 
1870,  where  the  same  had  been  authorized 
by  a  statute  and  a  vote  of  the  people  before 
the  adoption  of  said  constitution.  Fair- 
fields.  Gallatin  County,  too  t/.  5.*47,2t  .,•/;;/. 
Ry.  Rep.  438— Following  Middleport  v. 
.^tna  Life  Ins.  Co.,  82  111.  562;  Lippincott 
V.  Pana,  92  III.  24;  Chicago  i  I.  R.  Co.  v. 
Pinckncy,  74  III.  277.  Overruling  Con- 
cord 7'.  Portsmouth  Sav.  Bank,  92  U.  S. 
625.  — Foi.LowKi)  IN  Moultrie  County  v. 
Fairfield,  105  U.  S.  370;  Enfield  v.  Jordan, 
119  U.  S.  680. 

A  provision  in  the  III.  Constitution  of  1870 
takes  av.ay  the  power  of  a  municipal  corpo- 
ration to  sui)scribe  or  donate  moneys  to 
the  stock  of  railroads  except  "  subscrip- 
tions "  already  authorized  by  a  vote.  Held, 
following  the  state  court,  that  the  word 
"  subscriptions  "  embraced  also  "  donations." 
FHfiiid\.  Jordan.  119  d/.  5.  680,  7  Sup.  Ct. 
Rep.  358.— Following  Fairfield  v.  Gallatin 
County.  100  U.  S.  47.  Overruling  Con- 
cord V.  Portsmouth  Sav.  Bank,  92  U.  S. 
6:.- 

In  order  to  enable  a  city  council  in  In- 
diana to  make  a  donation  to  a  railroad 
comjtany  it  is  a  necessary  condition  prece- 
dent that  a  majority  of  all  the  resident  free- 
holders of  the  city,  without  limitation  or 
exception,  should  sign  the  petition  for  that 
purpose.  Adams  v.  Mayor,  etc.,  of  Kokomo, 
(hid.)  12  //;//.  (5-  Eni^.R.  Cas.  585. 

The  signitig  of  such  a  petition  by  a  ma- 
jority of  all  the  resident  freeholders,  not 
including  minors,  id.ots,  insane  persons,  and 
married  women,  is  not  .'i'lllicient  to  author- 
ize the  city  council  to  voti-  such  a  donation. 
Adams  V.  Mayor.  itt\,  of  Kokotno.  (Iiid.)  12 
.4ni.  &^  Ena^.  R.  Cas.  585. —  Revikwinc  Nr)- 
ble  7'.  Vincennes,  42  Ind.  125, 

Under  our  law,  pui)lir  donations  to  aid  in 
the  building  of  iiilroads  can  be  made  only 
by  tlif  people  themselves,  by  means  of  an 
election  properly  railed  and  held.  Spur  k 
v.  Lincoln  Z"  A'.  W.  R.  Co.,  14  A'efi.  293,  15 
A'.   If.  Rep.  701. 

In  an  action  to  enjoin  the  issuing  of  cer- 


MUNICIPAL  AND   LOCAL  AID,  254, 355. 


649 


k 


;5-.iv 


tain  bonds  of  a  city,  to  be  donated  to  a  rail- 
road company  upon  completion  of  its  road, 
it  appeared  that  the  whole  question  had  not 
been  submitted  to  the  electors  of  the  city, 
(ind  that  no  vote  had  been  submitted  or 
adopted  for  the  payment  of  the  principal  at 
any  time.  J/M,  that  an  injunction  was 
properly  i^ranted.     Cooi'  v.  Beatrice,  32  A'eb. 

80.   48   A'.     W.    Kt-p.   828.— UlSTINGUlSHlNU 

Fremont  Bldg.  Assoc,  v.  Sherwin,  6  Neb.  48. 

254.  Power  to  iiinko  voiKlitioiial 
doiiiitiuiiM. — Under  a  statute  which  au- 
thorizes a  municipality  to  pledge  its  aid  to 
a  railroad  "by  loan  or  donation,  with  or 
without  conditions,"  a  resolution  of  a  city 
voting  aid  on  condition  that  if  any  of  its 
citizens  should  subscribe  and  pay  for  any 
stock  of  the  railroad  the  latter  should  de- 
liver to  such  persons  the  bonds  of  the  city 
to  that  amount,  *  ♦  ♦  and  that  its  citizens 
should  have  the  right  to  subscribe  to  its 
stock  for  a  certain  time,  is  a  loan  or  dona, 
tion  within  the  meaning  of  the  statute. 
Taylor  v.  Ypsilanti,  \z  Am.  Sf  l^'tg-  A'.  Cas. 
549.  105  V.  S.  60. 

A  statute  which  grants  to  a  city  rights 
and  powers  unknown  to  the  common  law, 
as  power  to  donate  the  corporate  funds  in 
aid  of  a  railroad,  should  be  strictly  con- 
strued. Indiana  A',  &'S.  R.  Co,  v.  Attica,  56 
Ind.  476.— Distinguished  in  Bittinger  v. 
Bell,  65  Ind.  445. 

Ind.  Act  of  May  4,  1869,  authorized  cities 
to  aid  in  the  construction  of  railroads, 
either  by  subscribing  to  their  stock  or  by 
making  a  don^'tion  thereto.  The  term 
"  donation  "  as  used  in  the  statute  means 
an  absolute  gift  or  grant,  without  any  con- 
dition or  consideration.  Under  w  a  city  is 
not  authorized  to  make  a  contract  to  aid  a 
con'pany  by  delivering  to  it  a  certain  sunt  in 
money  or  bonds,  in  consideration  that  the 
company  agrees  to  erect  and  maintain  its 
machine  shops  in  or  near  the  city.  Such 
a^'ieenient  is  ultra  vires,  and  cannot  be  en- 
forced by  the  company,  even  after  it  has 
i)iiiit  its  road  on  the  faith  of  such  agree- 
ment. Indiana  N.  Z—  S.  A'.  Co.  v.  Attica, 
56  /«(/.  476.  — Rk.vikwkd  I.-.  Goddard  v. 
Stockman,  74  Ind.  400. 

Under  an  article  in  the  warrant  for  a 
town  meeting  "  to  see  what  sum  the  town 
will  vote  to  raise  and  appropriate  as  a  gratu- 
ity to  "  a  railriiad.  "said  road  to  be  com- 
pleted on  or  before "  a  day  named,  the 
town  may  lawfully  vote  a  gratuity  upon 
condition  that  the  road  be  comp;::ted  in  a 


reasonable  time.     Sawyer  v.  Manchester  Sr* 
K.  R,  Co.,  62  A'.  H.  135,  \iAm.  St.  Rep.  541. 

By  33  Vict.  c.  36,  {I  7,  municipalities  were 
authorized  to  aid  a  railroad  by  way  of  bonus, 
subject  to  such  restrictions  and  conditions 
as  might  be  mutually  agreed  upon  between 
the  municipality  and  the  directors  of  the 
railroad;  and  by  34  Vitt.  c.  41,  amending 
this  act,  the  county  was  authorized  on  the 
petition  of  certain  townships  and  villages  of 
the  county  to  grant  such  aid,  and  issue  the 
debentures  of  the  county,  payable  by  special 
rates  and  assessments  in  such  townships. 
Held,  that  the  powers  given  by  the  first  act 
to  agree  as  to  the  conditions  on  which  such 
aid  should  be  granted  would  apply  to  aid 
granted  under  the  subsequent  act.  Haldi- 
niand  County  v.  Hamilton  &•  N,  W.  R,  Co. , 
J7  U.  C  C,  P.  228. 

255.  Elt'et't  of  performance  of  coii- 
ditiooiM. — Where  a  donation  by  a  county 
to  a  railroad  had  been  voted  and  the  dona- 
tion made  on  the  books  of  the  railroad 
previous  to  1870,  and  the  company  had  by 
that  time  partly  done  the  work  required  by 
the  county  asa  condition,  thiscreated  a  con- 
tract between  the  railroad  and  the  county  ; 
and  the  bonds  issued  after  1870  to  carry 
out  that  contract  are  not  invalidated  by  the 
provisions  of  the  Illinois  Constitution  of 
1870  forbidding  such  subscriptions.  Clay 
County  v.  Society  for  Savings,  5  Ant.  &- 
Eng.  R.  Cas.  170.  104  I/.  S.  579.  To  same 
effect  see  State  ex  re/,  v.  Lake  City,  25 
Minn.  404. 

A  railroad  company  having  obtained  a 
bonus  from  the  plaintiffs  upon  condition 
that  its  machine  shops  should  be  "  located 
and  maintained"  within  the  city  limits  did 
so  erect  and  maintain  them  for  some  years, 
until,  authorized  by  legislation,  it  amalga- 
mated with  and  lost  its  identity  in  another 
company,  all  the  engagements  and  agree- 
ments of  the  amalgamated  com[)anies  being 
preserved.  The  amalgamated  railroad  was 
afte.-wards  leased  in  perpetuity  to  a  much 
larger  railroad  company,  who  removed 
the  shops  outside  the  city  limits.  Held, 
that,  although  all  engagements  and  agree- 
ments made  by  the  original  company  were 
preserved,  the  amalgamation  and  leasing  in 
perpetuity  by  the  larger  company  of  the 
smaller  under  the  authority  of  parliament 
imposed  new  relations  upon  the  amalga- 
mated road  which  worked  a  change  in  the 
policy  as  to  the  site  and  size  of  the  machine 
shops,  and  that  the  engagement  had  been 


-■■:•? 


650 


MUNICIPAL  AND   LOCAL  AID,  256-258. 


satisfied  by  the  maintenance  of  the  said 
sliops  by  the  uri^inal  company  (hiring  its 
ii)d< -pcniicnt  existence.  Toronto  v.  Ontario 
&^  Q.  A'.  Co.,  22  OfU.  344.-  yi'uriNti  Notta- 
\vasa(i;a  Tp.  7'.  Hamilton  &  N.  \V.  R.  Co., 
|6  Ont.  App.  67;  Texas  &  I*.  R.  Co.  v. 
Marshal!,  136  U.  S.  393.  Rkvik.win»j 
Wallace  Tp.  7'.  (iieat  Western  R.  Co..  3 
Ont.  App.  44;  Geauyeuu  j>.  Great  Western 
R.  Co.,  3  Ont.  ,\pp.  412. 

25(t.  Cdiiiplt'tioii  of  roiul  uh  u  con- 
dition precedent.*— A  (general  order  of 
the  hoard  of  commission<:rs  to  invest  a  do- 
nation voted  to  aid  in  the  construction  of  a 
railroad  in  the  stock  of  such  company,  and 
the  a|>proval  hy  sai<l  board  of  an  assi^^nment 
of  ail  unpaid  balance  of  such  donation, 
operate  as  u  sub.scription  to  the  stock  of 
the  company.  State  v.  Diiaware  County 
Coni'rs,  92  /ntf.  499.  — DtsriNdUISHED  IN 
Hamilton  County  Com'rs  7'.  State  ex  rel., 
36  Am.  &  En^'.  R.  Cas.  310,  1 1 5  Ind.  64. 

The  failure  of  such  railroad  company  to 
complete  its  road  within  three  years  from 
the  time  such  donation  is  made  does  not 
work  a  forfeiture  of  such  donation,  in  the 
absence  of  an  order  of  the  county  commis- 
sioners made  in  pursuance  of  the  act  of 
March  11.  1875.  Stati- v.  Jh/aware  County 
Coni'rs,  92  hut.  499. 

VV'liere  a  donation  was  voted  by  a  town- 
ship under  the  Ind.  .\c\  of  1869,  to  aid  in 
the  construction  of  a  railruad,  and  there  was 
no  forfeiture  under  section  18  of  that  act, 
nor  under  the  act  of  1873  by  which  such 
section  was  repealed,  nor  under  any  subse- 
quent act,  the  railroad  company  is  entitled 
to  the  money  donated,  altiioii(;'h  its  road 
was  not  completed  until  1880.  Marion 
County  Coni'rs  v.  Center  Tp.,  105  Ind.  422,  2 
\.  E.  Rep.  368,  7  X.  /•;.  Rep.  189.— DlSllN- 
(it'isiiKD  IN  Hamilton  County  Com'rs  v. 
Stall'  ex  rel.,  36  Am.  &  Enjj,  R.  Cas.  210, 
1 15  Inil.  64. 

Wlierea  municipality  passes  a  by  law  pro- 
vidinjj;  that  upon  the  completion,  etc.,  of  a 
certain  railway  in  a  certain  manner  within  a 
certain  time  the  city  would  yive  the  com- 
pany a  certain  bonus— //<■/</,  that  the  certifi- 
cate of  the  engineer  of  the  substantial  com- 
pletion, etc.,  of  the  works  specified  by  the 
bylaw  «'stablished  a  suiricient  performance 
to  satisfy  the  requirements  of   the  by  law, 

•  Contract  i"  make  a  dnnati<in  upon  the  com- 
pletinn  <>t  a  niilroail.  How  far  the  tumplftionis 
a  conilitifin  precedent,  lee  34  A.M.  &  [Cnc.  R. 
Cas.  350.  iibsir. 


coupled  with  the  fact  that  the  road  is  actu- 
ally running,  lUckforit  v.  Chatham,  14  Ont, 
App,  32;  ajfirniiu^  10  Ont.  257  ;  appeal  dis- 
missed in  16  Can,  Sup.  Ct.  235. 

257.  Hpecitic  perl'orintiiice  of  coii- 
ditionM.— A  town  agreed  to  pass  a  by-law 
granting  a  bonus  to  a  company  subject  to 
the  performance  <>f  certain  S|)ecified  condi- 
tions. The  bv-law  subsecpiently  a|)|)roved 
by  the  ratepayers  and  passed  by  the  town 
council  did  not  contain  all  the  conditions  of 
the  agreement.  In  an  action  to  com|)el  the 
delivery  of  debentures  for  the  amount  of 
the  bonus  the  town  pleaded  non-perform- 
ance of  the  conditions,  and  prayed  specific 
performance  thereof  by  the  plaintiffs.  //«■/</, 
per  Ritchie,  C.J.,  Strong,  Fournier.  und 
Henry,  JJ.,  Taschereau  and  Gwynne,  |J., 
contra,  that  the  title  to  the  debentures  de- 
pended upon  prior  performance  of  the 
conditions  in  the  by-law  alone,  and,  they 
having  been  complied  with,  the  debentures 
should  issue;  but.  jwr  Ritchie,  C.J.,  Strong 
and  Henry,  JJ.,  Ft)urnier,  J.,  contra,  that 
specific  performance  was  not  an  appropriate 
remedy  in  such  a  case,  and  the  (lefendants 
could  only  claim  damages  for  non-perform- 
ance, liickford  V.  Chatham,  16  Can.  Sup. 
Ct.  235;  dismissing:;  appeal  from  14  Ont. 
App.  32,  which  affirms  10  Ont.  257.-IJ1S- 
TiNct/i.sHlNf.  Wilson  7>.  Northampton  &  IJ. 
J.  R.  Co.,  9  Ch.  279. 

The  act  incorporating  the  railroarl  com- 
pany contained  provisions  respecting,  bo- 
nuses  granted  to  it  by  municipalities  not 
found  in  the  Municipal  Act.  J/eld,  t!iat 
such  special  act  was  not  restrictive  of  the 
Municipal  Act,  and  it  was  only  necessary 
that  the  provisions  of  the  latter  should  be 
followed  to  pass  a  valid  by-law  granting 
such  ;i  bonus,  liickford  v.  Chatham,  16 
Can.  Sup.  Ct.  235;  disniissin^r  appeal  from 
14  Ont.  App.  32,  tvhich  affirms  10  Ont.  257. 

25M.  llNhiK:  roiid  of  anittlier  coin- 
imiiy.-  A  donation  note  was  j^iven  to  a 
company  in  consideration  of  and  <'oiiditiont'd 
upon  the  proposed  construct  ion  from  Toledo, 
Ohio,  tr)  Marshall,  Michigan,  and  the  erec- 
tion of  repair  shops  at  the  liisi-nanied  city. 
The  coinjiany  built  its  roa<l  to  Diiiulee.  and 
secured  the  riglr.  to  use  the  track  of  another 
road  from  Dundee  to  Toledo  in  common 
with  the  owner.  The  road  over  wliicli  mk  h 
rights  were  thus  seciirerl  was  to  remain  in 
the  possession  anr!  under  the  control  ni  its 
owner,  anrl  all  persons  c-inployed  by  cither 
road  were  to  be  under  the  direction  of,  and 


MUNICIPAL  AND   LOCAL   AID,  23U-202. 


651 


subject  to  suspension  or  dismissal  by,  such 
(iwncr,  etc.  HeU,  that  wiiile  it  was  not 
necessary  that  tlie  payee  in  the  note  should 
literally  build  the  road  to  Toledo,  it  was 
evidently  expected  that  it  should  have  a  road 
under  its  own  control  covering  the  entire 
distance,  and  its  repair  shops  at  Marshall  for 
the  whole  road, the  iniprovenjentbeinK con- 
templated as  a  permanent  one.  Unncn  v. 
Dibblf,  30  Am.  «S-  Eitg.  li.  Las.  241. 65  Mic/f 
520.32  A'.  »r.  AV/).  656. 

Defendant  jjave  a  donaticjn  note  "  pay- 
able one  day  after  the  grading  shall  be  done 
and  the  ties  on  the  ground  sufficient  for  the 
roadbed  of  the  Owosso  and  Northwestern 
railroad,  between  Owosso  and  Elsie."  This 
road  was  not  built  but  afterwards  another 
company  built  a  railroad  between  the  points 
named,  "  partly  on  the  old  line,  and  partly 
on  a  shorter  and  more  direct  line,"  and  the 
payees,  who  were  contractors  on  said  old 
road,  sued  on  the  note.  //</</,  that  the  con- 
struction of  the  roadbed  mentioned  in  the 
note  was  a  material  part  of  the  contract, 
without  which  the  deferulant  was  not  liable, 
and  judgment  should  have  passed  in  his 
favor.  .Siiiils  v.  ^itiiiiisoit,  63  Mufi.  421, 
30A'.  //'.  AV/.  78.  -DlSTINCflsHING  Toledo 
iV  A.  A.  R.  Co.  7/.  Johnson,  55  Mich.  456. 

:£50.  KoiiiiN  to  N4M'iiro  11  depot.— 
The  legislature  of  Mississippi  has  power — 
subject  to  the  constitutional  re8tri<;tion  that 
two  thirds  of  the  cpialilied  voters  of  a  town 
in  the  state,  at  a  s|)pcial  election  or  regular 
election  to  be  held  in  such  town,  shall  as- 
sent- to  authorize  a  town  to  aid  a  railroad  ; 
and  such  aid  may  be  given  by  issuing  and 
delivering  interest-bearing  bonds,  as  a  dona- 
tion, to  secure  the  permanent  location  in 
the  town  of  a  <lepot  of  the  road.  AV7<'  Or- 
/lutns,  S/.  L.  Sr'  C.  A'.  Co.  v.  McDonald.  53 
.)//.vf.  240.-  yi;oTKl)  IN  Northern  Pac.  R. 
Co.  7'.  Roberts,  42  Fed.  Rep.  734. 

lilJO.  I'rociii'tMl  l»5  lirllM'ry  ot'votorH. 
-  Where  a  by-law  granting  a  bonus  to  a  rail- 
w.iy  <()n<|)any  has  been  carried  by  the  elec- 
tors, a  municipal  council  may  refuse  finally 
to  |)iss  the  same  because  the  passage  of  the 
by-law  has  been  procured  by  bribery,  and 
m;iv  set  up  such  bribery  in  answer  to  an  ap- 
plication for  a  mandamus.  /;/  /<•  I.aiif^iton 
^  .\.J.  A'.  <■-'.,  45  r.  C.  (>.  /.'  47. 

Si-iiiblt\  that  a  mandamus  should  not  be 
granted  at  the  instance  of  any  railway  com- 
|)aiiy  or  person  to  be  benefited  by  such  by- 
law, where  a  single  art  of  bribery  or  corrup- 
ti  )n  h  s  bi'cii  bronglit  Imme  to  the  applicant. 


In  re  Lan^don  &>  A.J.  R.  Co.,  45  V.  C.  Q. 
li.  47.— Ai'i'RoviNt;  In  re  Stratford  &  H.  R. 
Co.,  38  U.  C.  y.  H.  113. 

liW.  Lofiitioii  of  roiifl  within  iiiii« 
iiifipai  hoMinlari«'M.— The  order  of  the 
board  of  commissioners  placing  a  special 
tax  on  the  duplicate  is  conclusive  as  to  the 
fact  of  the  location  of  the  road  within  the 
township,  and  cannot  be  questioned  in  a 
proceeding  for  an  injunction.  Nixon  v. 
Campbell,  24  Am.  &^  A//^'.  A'»  Cas.  605,  106 
/nd.  47,  4  A'.  /•:.  A't/>.  296,  7  A'.  F.  Hep.  258. 

The  legislature  of  Nebraska  has  power  to 
authorize  counties  to  donate  money  to  a 
railroad  outsi<le  of  the  county  or  state,  or  to 
donate  the  money  directly  to  the  railroad. 
t'///ivf<,'<^  //.  tS-  Q.  A".  Co.  V.  Utoe  County,  16 
irali.  (U.  .v.)  667.4  .///;.  A>.  AV/.  82.— 
QuoTKlJ  IN  Hamlin  v.  Meadville,  6  Neb. 
227.  Rkafkikmki)  IN  yueensbury  v.  Cul- 
ver, 19  Wall.  83. 

302.  Fort'eitiiro  of  donation.— The 
Indiana  statute  provides  that  "a  failure  on 
the  part  of  the  railroad  company  to  com- 
mence work  upon  the  railroad  in  said 
county  within  one  year  from  the  levying 
of  such  special  tax,"  etc.,  "shall  forfeit 
the  rights  of  such  company  to  such  do- 
nation." Held,  that  the  company  njust 
commence  work  in  good  faith,  with  the 
honest  purpose  of  constructing  the  road 
within  a  reasonable  time,  taking  into  con- 
sideration the  extent  and  character  of  the 
work  to  be  done ;  and  that  to  do  work 
manifestly  to  evade  forfeiture  is  not  "to 
commence  work  "  within  the  meaning  of 
the  statute.  Detroit,  E.  A".  Sf'  I.  R.  Co.  v. 
liearss,  39  Ind.  598,  \oAm.  Ry.  Rep.  382. 

Ind.  Act  of  1869,  so  far  as  it  relates  to  a 
forfeiture  of  a  donation  which  has  been 
voted  to  a  railroad  by  a  failure  to  complete 
the  road  within  three  years,  is  repealed  by 
the  act  of  Jan.  30.  1873,  providing  a  differ- 
ent cause  of  forfeiture  and  the  manner  of 
taking  advantage  of  the  same.  Marion 
County  Com'rs  v.  Center  7p.,  105  /nd.  422,  2 
A'.  E.  Rep.  36S,  7  X.  E.  AV/.  189.-  Al'l'RovKt) 
AND  I'oi.i.owEtj  IN  Nixon  V.  Cainpliell.  24 
Am.  iS:  Eng.  R.  Cas.  605,  106  Ind.  47. 

Under  Ind.  Act  of  Jan.  30,  1873,  there  can 
only  be  a  forfeiture  when  the  county  board, 
on  the  application  of  twenty-five  freeholders 
and  after  notice,  makes  an  order  canceling 
the  donation.  Marion  County  Com'rs  v. 
Center  7/.,  105  ///</.  422.  2  A'.  E.  Rep.  368, 
7  A'.  E.  Rep.  189. 

Such  an  order  cannot  be  made  until  after 


653 


MUNICIPAL   AND    LOCAL   AID,  2UU  ^UU, 


the  i-xpiratiun  of  three  years  from  the  plac- 
ing of  the  tax  ii|M>ti  th<;  <hi[)licate,  aiitl,  if 
before  that  time  the  coin|)any  should  ex- 
pend in  the  construetion  of  its  road  in  the 
township  a  sum  equal  lo  tlie  donation,  there 
can  he  no  forffiliire.  Mixrion  County  Com'rs 
V.  Center  Tft.y  105  liid.  422,  2  i\.  K.  J\'t/>. 
3r..S.  7  A'.  /•>.  AVA  i8y. 

Tile  mere  faiUire  to  locate,  within  u  pre- 
scribed time,  a  railroad  to  which  a  pnlilic 
donation  has  been  made  is  not,  under  ex- 
isting; statutes,  a  cause  for  forfeiture  of  tht; 
ri^'hi  to  such  donation,  and  where  the  road 
has  actually  been  hjcated  and  the  required 
amount  of  money  expended  in  its  construc- 
tion within  the  township,  the  collection  of 
thi>  S|)ecial  tax  cannot  be  enjoined.  A't'xon 
V.  CiUnpbill,  24  Am.  &*  ling.  A",  du.  605, 
I  of)  Ind.  47,  4  ^V.  A',  lii'p.  2y6,  7  A'.  E.  Nep. 
358.— ,\pi'R(iviNU  AND  KoLi.t)WiN(;  Marion 
County  Conj'rs  v.  Center  Tp.,  105  Ind.  422. 

24i:{.  CoiiMulitlutioii  attur  duiiiitioii 
vot«!«l.— The  common  council  of  a  city  in- 
corporated under  the  Indiana  general  law 
for  the  incorporation  of  cities,  upon  peti- 
tion of  a  majority  of  the  resident  freehold- 
ers of  the  city,  made  an  order  for  the  dona- 
tion of  a  certain  amount  in  the  bunds  of  the 
city  to  a  railroad  company,  incorporated  un- 
der the  laws  of  the  state,  to  aid  in  the  con- 
s; ruction  of  its  railroad  running  into  said 
city.  Hefore  the  bonds  had  been  actually 
issued  the  company  was  consolidated  with 
another  company,  incorporated  under  the 
laws  of  an  adjoining  state,  the  consolidated 
company  taking  a  nev  name;  and  after- 
wards, without  further  petition  or  further 
order  of  donation,  the  bonds  of  the  city  so 
ordered  were  issued  and  delivered  to  the 
consolidated  com|)any,  being  made  payable 
to  bearer,  and  reciting  that  tVey  were  is- 
sui'd  by  authority  of  the  act  of  March  14, 
1867.  and  in  pursuance  of  the  proper  peti- 
tion and  order  of  the  common  council  of 
said  ( iiy,  of  a  given  date,  making  a  sub- 
scription in  f)onds  of  said  city  to  aid  the 
railroad  named  in  said  petition  and  order, 
"  now  consolidated  with  and  forming  a 
part  of"  saifl  consolidated  company,  giv- 
ing its  name;  anfl  afterwards  said  bonds 
were  sold  to  a  purchaser  without  notice, 
and  the  city  for  some  years  regularly 
paid  the  interest  thereon.  In  a  suit  by  a 
tax-payer  of  sai<l  city  for  an  injunction,  to 
\cstrain  the  collection  of  a  certain  amount  of 
tax  assessed  against  him  for  the  payment  of 
the  interest  on  said  bonds  and  to  create  a 


^inking  fund  for  the  payment  of  the  princi- 
pal, no  irregularity  in  the  petition  of  the 
freeholders  or  in  said  order  of  the  commo!'. 
council  making  the  donation  was  shown, 
and  no  irregularity  in  the  consolidation  of 
said  railroad  companies  was  claimed.  /A'.V, 
that  an  injunction  would  not  lie.  Mount 
Vernon  v.  Iliwey,  52  InU.  563.  —  DisriN- 
(ii;i.siiKI>  IN  liatnilton  County  Com'rs  v. 
State  ex  rcl.,  36  Am.  &  Eng.  K.  Cas.  210, 
115  Ind.  64. 

In  1874  a  county  gave  a  bonus  of  $6$,ooo 
t(^  be  u.sed  in  the  construction  of  a  railway 
u|M)n  the  condition  that  the  company 
should  remain  "  independent  "  for  twenty- 
one  years.  In  1888  the  company  became  in 
ertect  merged  in  the  Cirand  Trunk  K,  Co. 
and  ceased  to  be  an  independent  line. 
Held,  that  there  had  been  a  breach  of  the 
condition  entitling  the  plaintitTs  to  recover 
the  whole  amount  <if  the  bonus  as  liqui- 
dated damages.  Ilalton  County  v.  Grand 
Trunk  A'.  Co.,  19  (hit.  App.  252. 

2(14.  Alteration  uf  route— Altera- 
tions in  the  line  of  a  road  which  do  not 
change  the  terminal  points  nor  materially 
affect  the  general  route  will  not  defeat  the 
right  of  the  company  to  a  donation.  Marion 
County  Com'rs  v.  Center  Tp.,  105  Ind.  422,  2 
A'.  E.  Rep.  368,  7  N.  E.  Rep.  189. 

20ff.  Liability  ot'dlHtriotH  aunt  x<'d 
to  uiunivipaiity  attur  donation.— The 
donation  made  by  the  town  of  Honham  in 
1873  to  the  Texas  h  Pacific  railroad  on  a 
vote  of  its  citizens,  under  the  act  of  April 
12.  1871,  is  valid  and  binding  on  the  town. 
It  was  fur  the  legislatu  e  to  determine 
whether  afterwards,  when  the  f^wn  was  in- 
cor|)orated  as  a  city,  its  limits  shoidd  be 
extended  by  charier,  and  this  without  re- 
gard to  the  wishes  of  those  included  by 
the  extension.  The  property  thus  included 
by  the  extended  limits  becomes,  in  the  ab- 
sence of  legislation  to  the  contrary,  subject 
to  taxation  for  all  municipal  indebtedness 
existing  before  the  limits  of  the  municipal 
government  were  extended.  Madry  v.  Ci'.i-, 
73  7V.r.  538,  1 1  .S-.  W.Rep.  541. 

liMS.  Iiig;lit  to  pay  ooiiatioii  in 
lioiuiN. — When.'  a  statute  authorizes  the 
flonation  of  money  by  a  miniicipal  corpora- 
tion to  aid  in  the  construction  of  a  railroad, 
and  provides  for  levying  a  tax  to  raise  the 
amount  to  be  donated,  the  officers  of  the 
muni^•ipality  cannot  adopt  any  other  mode 
of  payment.  Bonds  issued  by  them  for  the 
l)ufp<>se  are  void.    Middleport  v.  .Etna  Lif,' 


MUNICU'AL   AND   LOCAL  AID,  2««. 


6fl8 


Ins.  Co.,Z2  I/l,  562.  — EXI'I.AINK.II  IN  Abiiijj- 
ti)ii  7'.  Culjccn,  IJ  Am.  &   Kii^.  U.  Cas.  5S1, 

\(/i  III.  3CX). 

Where  llic  voters  of  a  town  vote  ii>  tuakc 
H  (Iniiatioii  in  aiil  uf  a  railroad,  for  wliicli  a 
tax  IS  to  be  levied  and  the  inuncy  paid  to 
the  company,  it  is  a  proposition  entirely  dis- 
tinct from  one  to  create  a  debt  in  respect  t(j 
such  donation,  and  a  vote  uf  that  character 
will  not  be  construed  to  autborixe  the  issue 
of  the  bonds  of  the  town  fcjr  the  amount  so 
voted.  Scliiii'ffir  V.  Jion/iiun,  95  ///.  36S. 
MiMli-port  V.  .F.tiui  Uft  Ins.  Co.,  82  ///.  562. 
—  I'oi.i.uWKIt  IN  ScliaelTer  t.  Doniiam,  95 
III.  36X;  Fairfield  v.  Gallatin  County,  100 
U.  S.  47. 

A  railway  charter  authorized  any  incor- 
porated city  or  town  on  the  line  of  the  pro- 
posed road  to  make  donations  to  the  com- 
pany, not  exceeding  $10,000,  to  l>e  paid  by 
immcdi.itc  taxation,  |{ivin(r  no  power  to  is- 
sue bonds  in  payment,  and  an  amendment 
to  the  charter  named  villages,  counties,  and 
townships  as  corporations  to  which  power 
was  f(ivcn,  on  a  vote  of  the  people,  to  make 
donations  to  tiic  proposed  railroad,  and  to 
issue  interest-bearing  bonds  in  payment 
thereof.  //</</,  that  bonds  issued  by  an  in- 
corporated  town  after  the  passage  of  the 
amendatory  act  of  ^69,  u|)on  a  vote  for  a 
donation  to  the  company,  were  illegal  and 
void,  being  issued  without  sanction  of  law. 
The  word  town,  being  omitted  from  the  act 
autiiorizing  the  issue  of  bonds,  cannot  be 
supplied  by  judicial  construction,  li'ekh 
v.  i\ost,  5  Ani.  &*  Eng.  A'.  Las.  1 58,  99  ///. 
471.' 

Under  an  authority  to  a  town  to  vote  a 
donation  in  aid  of  a  railroad,  and  to  levy 
and  collect  taxes  to  pay  the  same,  or  to  vote 
such  aid  and  to  borrow  money  to  pay  the 
same,  and  to  issue  interest-bearing  bonds  to 
pay  such  loans,  the  company  cannot  be 
compelled  to  take  bonds  of  the  town  in  pay- 
ment, nor  can  it  compel  the  town  authori- 
ties to  issue  bonds  to  it.  Chicago,  D.  &*  V. 
A.  Co.  v.  S/.  ^him;  101  ///.  151. 

County  bonds  in  payment  of  a  donation 
to  a  railroad,  authorized  in  1869,  were  not 
invalidated  by  the  III.  Constitution  of  1870. 
taking  away  the  power  of  municipalities  to 
subscribe  or  donate  money  to  railroads,  but 
saving  the  right  to  issue  bonds  "authorized 
under  existing  laws  by  a  vote  of  the  peo- 
ple." Moultrie  County  \.  Fairfield,  7  Am. 
«S-  Eng.  A'.  Cas.  194,  105  U.  S.  370.— Fol- 
lowing Chicago  &  I.  R.  Co.  v.  Pinckney, 


74  III.  277;  Middleport  v.  >Ftna  Life  Ins. 
Co.,  .S2  III.  5^2;  Lippincott  7A  I'ana,  92  III. 
34;  Fairfield  t.  Ci.dhitin  Cnunty,  loo  LI.  S. 

47. 

An  Illinois  town  on  Nov,  30  1869,  voted 
a  donation  to  a  railroad,  but  said  nothing 
about  issuing  bonds.  In  1870  a  new  con- 
stitution was  adopted  taking  away  the 
pjjwer  of  municipalities  to  subscribe  or 
make  <lonatioiis  to  railroads,  except  tiiat 
sid)scriptions  or  donations  already  voted 
inigiit  be  completed.  In  1871  the  town  made 
the  donation  and  issued  its  bonds  for  tliu 
amount.  JMtl,  that  if  it  ever  possess«;d  the 
power  t<j  issue  bonds  it  was  taken  away  by 
the  new  constitution,  as  the  vote  did  not 
autliorize  the  issue  of  bonds.  ContoPii  v. 
A'oliinson,  121  i'.  .*>.  165,  7  Sup.  Ct.  /»'</.  937. 
—  FoiLuwiNc;  .Middleport  v.  /I'.lna  Life 
Ins.  Co..  82  111.  568;  Aspinwall  v.  Daviess 
County  Com'rs,  22  How.  (U,  S.)  364;  Wiids- 
worlh  V.  Eau  Claire  County  Sup'rs,  103  U.  S. 

534. 

In  an  action  by  the  state,  on  the  relation 
of  the  president  of  a  railroad  company, 
against  the  mayor  and  common  council  of 
a  city,  for  a  mandate  compelling  the  issue 
and  delivery  to  such  company  of  a  certain 
amount  in  bonds  of  such  city,  the  c(^m- 
plaint  alleged  that  a  petition  was  presented 
to  defendants  by  a  majority  of  the  resident 
freeholders  of  such  city  representing  that 
such  company  had  been  organized  for  the 
purpose  of  constructing  a  railroad  from  a 
certain  point  to  such  city  and  asking  the 
common  council  "to  make  a  donation  to 
said  company  of"  a  sum  specified,  to  aid 
"  in  the  construction  of  said  railroad,  to  be 
paid  in  the  bonds  of  said  city,  within  such 
time,  and  at  such  rate,  of  interest,  as  "  the 
common  council  should  "deem  proper"; 
that,  upon  the  report  of  a  committee  of  the 
common  council  that  a  majority  of  such 
freeholders  had  signed  the  petition,  but 
without  adopting  such  report,  a  resolution 
was  adopted  by  the  common  council,  declar- 
ing that  such  donation  should  be  matle,  and 
directing  that  an  ordinance  making  the  same 
should  be  prepared ;  that  such  ordinance 
had  been  defeated ;  and  that  such  railroad 
had  been  completed.  A  copy  of  the  petition, 
and  also  of  the  proceedings  of  the  council, 
were  made  exhibits.  Held :  (i)  that  the  com- 
plaint showed  'A  prima  facie  case  for  allow- 
ing a  writ  of  mandate ;  (2)  that,  no  terms 
upon  which  such  bonds  should  issue,  and 
no  rate  of  interest  thereon,   having  been 


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specified  in  the  petition,  it  might  be  con- 
strued as  asking  tlie  issue  of  a  single  bond 
for  the  whole  amount  without  interest,  the 
council  having  no  power  to  fix  a  rate  of  in- 
terest. Mayor,  etc.,  of  Kokonw  v.  State  ex 
rcL,  57  Ind.  152. 

Tlie  fact  that  at  the  time  such  petition 
was  presented,  and  thence  until  the  com- 
mencement of  the  action  for  a  n.andate,  one 
of  the  members  of  the  common  council  had 
been  a  stockholder,  director,  a'^'^  ffficer  of 
such  railroad  company  did  r  'isqualify 
him  to  act  upon  the  petition,  or  the  common 
council  to  pass  an  ordinance  maU'  'g  the 
donation,  and  constitutes  no  defer'  t'  ^ne 
action.  Mayor,  etc.,  of  Kokomo  \ .  .i  cX 
rel.,  57  Ind.  152. 

The  action  of  the  common  counc'l  in 
adopting  a  resolution  declaring  that  the  do- 
nation petitioned  for  should  be  made  does 
not  estop  the  defendants  in  such  action  from 
denying  that  sucii  petition  had  been  signed 
by  a  majority  of  the  resident  freeholders. 
Mayor,  etc.,  of  Kokomo  v.  atate  ex  rel.,  57 
Ind.  i  52. 

The  defendant  in  such  action  answered 
that  the  signatures  to  such  petition  had 
been  procured  by  fraud,  in  that  the  petition 
had  been  signed  in  blank  as  to  the  amount 
to  be  donated  upon  the  representation  of 
the  person  circulating  the  petition  for  sig- 
natures that  the  blank  would  be  filled  by 
inserting  an  amount  much  less  than  had 
been  afterward  actually  inserted.  IIeld,l\\a.x. 
the  answer  was  insufficient.  By  so  signing 
in  blank  petitioners  conferred  upon  the 
person  to  whom  the  petition  was  by  them 
intrusted  an  implied  authority  to  fill  such 
blank.  And  as,  under  such  petition,  the 
city  would  be  entitled  to  receive  no  stock  in 
such  company,  false  representations  as  to 
the  amount  of  stock  to  be  received  by  the 
city  were  immaterial.  Mayor,  etc.,  of  Koko- 
mo V.  State  ex  rel,,  57  Ind.  152. 

Kan.  Act  of  Feb.  28,  1868,  authorized  a 
city  to  issue  $25,000  in  bonds  for  the  pur- 
pose of  procuring  a  right  of  way  through 
the  city  for  a  railroad  and  other  necessary 
grounds  to  be  donated  to  the  company.  In- 
stead of  procuring  the  grounds  and  donat- 
ing them  the  city  authorities  donated  the 
bonds.  Held,  that  they  were  binding  on 
the  city.  Converse  v.  Ft.  Scott,  92  U.  S.  503. 

207.  By-laws  douatiuer  municipal 
debentures. — A  railway  charter  provided 
that  on  receiving  certain  petitions  the  cor- 
poration of  the  county,  etc.,  should  submit 


to  the  electors  a  by-law  to  aid  the  company 
by  a  bonus,  and  should  deliver  to  trustees 
the  debentures  for  any  such  bonus  when 
granted.  The  company,  as  an  inducement 
to  the  passing  of  such  a  by-law,  gave  a  bond 
conditioned  to  build  the  road  within  a  cer- 
tain time,  and  to  repay  the  bonus  to  the 
county  in  the  event  of  ceasing  within 
twenty-one  years  to  be  an  independent  com- 
pany. Held,  that  a  mandamus  would  not 
be  granted  to  compel  the  corporation  to 
hand  over  the  debentures  to  the  trustees 
appointed  to  receive  them,  there  being 
ground  for  apprehension,  owing  to  the  de- 
lay, that  the  bond  could  not  be  performed. 
In  re  Hamilton  &^  N.  M^.  A'.  Co.,  39  U.  C. 
Q.  B.  93. 

A  by-law  was  passed  by  a  county  grant- 
ing a  bonus  of  $50,000  to  a  railroad  com- 
pany, and  authorizing  debentures  of  the 
county  to  be  issued  therefor,  to  be  pro- 
vided for  by  a  rate  levied  upon  the  town 
of  Woodstock  and  the  township  of  North 
Norwich.  Tiiis  by-law  was  legalized  by  37 
Vict.  c.  57,  §  26,  O,  which  provided  tiuit 
the  company  should  indemnify  the  town- 
ship to  the  extent  of  $10,000  against  any  ex- 
cess above  two  Jifths  of  said  debentures, 
and  should  give  a  bond  securing  such  in- 
demnity, which  bond  had  been  given.  Held, 
that  the  liability  of  the  township  under  this 
by-law  was  a  debt  of  the  township,  although 
secured  by  debentures  of  the  county,  and 
within  the  power  of  the  arbitrators  to  dis- 
pose of  as  well  as  the  bond.  In  re  North 
Norwich  Tp.,  44  U.  C.  Q.  B.  34. 

It  was  awarded  as  to  the  bond  thait  the 
village  should  be  interested  in  it  to  the  ex- 
tent of  $10,009,  '^^^  ^i'c  township  to  the 
extent  of  $8991  for  each  $10,000  thereof, 
and  so  in  like  proportion  for  any  greater  or 
less  amount  payable  in  respect  thereof,  and 
as  to  the  money  payable  under  the  by-law 
that  the  village  should  pay  $1  and  the  town- 
ship $8  for  each  $6  thereof.  Held,  that  this 
mode  of  disposition  was  authorized,  and  un- 
objectionable. In  re  North  Norwich  Tp., 
44  U.  C.  Q.  3.  34. 

The  award  purported  to  be  made  "  with 
the  consent  of  the  parties."  Held,  that 
such  consent  referred  to  the  matter  being 
disposed  of,  and  not  to  the  mode  of  disposi- 
tion. In  re  North  Norwich  Tp.,  44  U.  C. 
Q.  B.  34. 

A  municipal  corporation  having  passed  a 
by-law  giving  a  certain  sum  in  debentures 
by  way  of  bonus  to  a  railroad,  the  company 


■1 


MUNICIPAL  AND   LOCAL  AID,  268,  269. 


655 


executed  a  bond  to  the  township  reciting 
that  the  townsliip  had  iij^reed  to  give  the 
bonus  on  coudiiion,  amongst  (jther  things, 
that  sixty  continuous  miles  of  tlie  road 
siiould  be  built  within  two  years,  that  the 
debentures  sliould  not  be  disposed  of  by 
the  company  until  the  contracts  had  been 
let  and  the  work  commenced,  and  that  if 
tiie  road  were  not  commenced  and  built  as 
mentioned  the  debentures  should  be  re- 
turned to  the  municipality;  and  the  condi- 
tion of  the  bonds  was  that  in  case  of  failure 
the  company  would  on  demand  pay  over  to 
the  township  the  sum  of  $50,000,  or  return 
the  debentures.  The  contracts  having  been 
let  and  work  commenced  as  stipulated — 
held,  in  view  of  the  whole  instrument,  that 
the  company  should  not  be  restrained  from 
disposing  of  the  debentures  before  the  com- 
pletion of  the  work.  Brock  v.  Toronto  &• 
N.  R.  Co.,  17  Grant's  Ch.  {U.  C)  425. 

A  proposed  by-law  for  granting  to  a  rail- 
road company  a  bonus  of  $44,000  was  as- 
sented to  by  the  ratepayers  of  a  township  ; 
and  to  induce  the  council  afterwards  to 
ratify  the  by-law  the  company  entered  into 
a  bond,  undertaking  that  if  certain  other 
townships  should  deliver  to  the  company 
certain  debentures  expected  from  them  the 
company  would  give  to  said  township 
$6000  of  preferential  bonds  of  the  company, 
the  company  having  a  limited  statutory 
authority  to  issue  preferential  bonds  "  for 
raising  money  to  prosecute  the  undertak- 
ing." One  of  the  townships  failed  to  give 
the  debentures  expected  from  it,  and  the 
company,  instead  of  giving  its  preferential 
bonds,  gave  an  ordinary  bond  for  the  $6000. 
Held,  that  the  company  had  no  authority  to 
give  its  preferential  bond?,  for  the  purpose 
of  carrying  out  its  bargain  with  the  munici- 
pal council.  Eldon  Tp.  v.  Toronto  &*  N. 
A\  Co.,  24  Grant's  Ch.  {U.  C.)  396. 

The  default  of  one  of  the  other  townships 
to  give  the  debentures  expected  from  it  dis- 
entitled plaintiff  township  to  demand  pref- 
erential bonds  from  the  company  even  if  the 
company  had  had  authority  to  grant  them. 
Eldon  Tp.  V.  Toronto  <S<«  A^.  A\  Co.,  24  Grant's 
Ch.  {U.  0396. 

The  giving  of  thoi  bond  which  the  com- 
pany did  give  was  no  waiver  of  the  objec- 
tion as  an  answer  to  the  municipality's 
demand  of  preferential  bonds.  Eldon  Tp. 
V.  Toronto  <S-  N.  R.  Co.,  24  Grant 's  Ch.  {U. 
C.)'396. 


XII.   BONDS. 

I.  Issuing, 
a.  Power  to  Issue. 

268.  The  power  wholly  denied.*— 

The  counties  of  a  state  have  no  power  to 
borrow  money  or  subscribe  stock  to  aid  in 
the  construction  of  railroads ;  and  the  issu- 
ing of  bonds  by  the  counties  or  the  transfer 
of  them  by  the  corporations  to  whom  they 
are  issued  may  be  restrained  by  injunction. 
(Woodward,  J.,  dissenting.)  Stokes  v.  Scott 
County,  10  /o7i/a  166.— OVERRULING  Du- 
buque County  V.  Dubuque  &  P.  R.  Co.,  4 
Greene  (Iowa)  i.  Reviewing  State  v.  Bis- 
sell,  4  Greene  328;  McMillan  v.  Boyles, 
3  Iowa  3x1 ;  Clapp  I/,  Cedar  County,  5  Iowa 
15;  Ring  V.  Johnson  Coimty,  6  Iowa  265; 
McMilien  v.  Boyles,  6  Iowa  304. — Fol- 
lowed IN  State  ex  rel.  v.  Wapello  County, 
13  Iowa  388.  Reaffirmed  in  Smith  7/. 
Henry  County,  15  Iowa  385. — Myers  v.  John- 
son County,  14  /oTua  47. — Following  State 
ex  rel.  v.  Wapello  County,  13  Iowa  388. — 
Followed  in  McClure  v.  Owen,  26  Iowa 
243. — Chamberlain  v.  Burlington,  19  Iowa 

395- 

269.  No  implied  power— Express 
grant  neeessary. — A  municipal  corpora- 
tion cannot  subscribe  to  the  capital  stock 
of  a  railroad  company,  and  issue  its  bonds 
in  payment  of  such  subscription,  unless  the 
power  so  to  do  has  been  expressly  conferred 
by  law.  Lewis  v.  Clarendon,  5  Dill.  (U.  S.) 
329.  New  Orleans,  M.  Or'  C.  R.  Co.  v.  Dunn, 
51  Ala.  128.  Duanesburgh  v.  Jenkins,  40 
Barb.  (,N.  F.)  574. 

Til.'  rule  does  not  require  that  the  law 
confei  ing  the  power  siiould  be  construed 
as  strictly  as  a  penal  law.  Leavenworth,  L. 
&*  G.  R.  Co.  V.  Douglas  County  Com'rs,  18 
Kan.  169,  15  Am.  Ry.  Rep.  256. 

To  render  municipal  securities  issued  in 
aid  of  a  railroad  valid  there  must  be  legisla- 
tive authority,  either  express  or  implied, 
authorizing  their  issuance;  but  the  legisla- 
ture may,  by  a  curative  act,  remedy  irregu- 
larities and  such  other  defects  as  might 
have  been  provided  for  in  the  original  grant 
of  power.  The  power  of  the  city  of  Aber- 
deen, Miss.,  either  under  its  charter  or 
under  the  curative  act  of  1872,  to  make  such 
a  subscription  is  denied.  Katzenberger  v. 
Aberdeen,  16  Fed.  Rep.  745.— Following 
Knox  County  Com'rs  v,  Aspinwall,  21  How. 

*See  also  ante,  31» 


I 

a 


jjt ; 


656 


MUNICIPAL  AND   LOCAL  AID,  270-272. 


(U.  S.)  539 ;  Wells  7'.  Pontotoc  County 
Sup'rs,  I02  U.  S.  625. 

270.  When  iiiiplu'd  from  otiivr 
powers  expressly   «raiite<l.— Where  a 

county  is  given  authority  to  issue  its  bonds 
to  pay  a  subscription  to  the  stock  of  a  rail- 
road, this  is  sulficient  authority  to  issue 
negotiable  bonds ;  and  where  such  bonds 
have  been  issued,  and  tlie  county  is  given 
power  to  compromise  its  indebtedness  by 
issuing  to  its  creditors  otlier  obligations  of 
the  county,  it  may  issue  other  negotiable 
bonds.  Carter  Comity  v.  Sinton,  120  17.  S. 
517,  7  Sup.  Ct.  Rep.  650. 

The  charter  of  the  city  of  Mobile  confers 
no  express  power  on  the  corporate  author- 
ities to  issue  bonds  of  the  city  in  aid  of  a 
railroad  to  enable  it  to  purchase  certain 
swamp  lands  within  the  city,  either  as  a 
gratuity  or  in  consideration  of  the  location 
by  the  company  of  its  machine  shops  and 
workshops  on  the  lands;  nor  is  such  power 
necessarily  implied  in  the  grant  of  general 
police  powers,  or  in  any  of  the  special 
powers  expressly  conferred ;  nor  can  the 
issue  of  such  bonds  be  supported  by  any 
considerations  of  supposed  benefit  to  the 
city,  or  to  the  health  of  its  inhabitants, 
arising  from  the  reclamation,  drainage,  and 
improvement  of  the  lands.  New  Orleans, 
M.  &>  C.  K.  Co.  V.  Dunn,  51  Ala.  128. 

271.  Wlieii  implied  from  power  to 
borrow  money.— Where  the  charter  of  a 
city  authorizes  it  to  borrow  money  for  pub- 
lic purposes,  and  a  statute  provides  that 
when  any  railroad  company  shall  receive  the 
bonds  of  any  city  or  county  upon  subscrip- 
tions to  stock  they  shall  bear  interest,  and 
"  may  be  sold  by  the  company,"  the  city 
has  power  to  subscribe  to  stock  and  issue 
valid  bonds  in  payment.  Gelpcke  v.  Du- 
buque, I   \Vall.(,U.  5.)  220. 

Unrestricted  power  to  a  municipal  corpo- 
ration "  to  borrow  money  for  any  public 
purpose  "  gives  it  undoubted  ,  uthority  to 
grant  material  aid  to  a  railroad  as  a  way  for 
trav£l  and  transportation,  and  for  that  pur- 
pose it  may  purchase  stock  and  pay  for 
the  same,  or  it  may  issue  bonds  as  a  means 
of  accomplishing  the  same  object.  Rogers 
V.  Burlington,  3  Wall.  {U.  S.)  654. 

Bonds  issued  under  such  authority  may  be 
sold  by  the  corporation  to  raise  the  money, 
or  be  delivered  to  the  railroad  company  for 
the  same  purpose ;  and  in  either  mode  the 
transaction  as  between  the  municipal  corpo- 
ration and  purchasers  of  the  bonds  is  a  con- 


tract of  borrowing  money  widiin  the  terms 
of  the  charter.  Rogers  v.  Burlington,  3 
Wall.  (  U.  S.)  654.  V 

Power  given  a  city  council  to  borrow 
money  on  the  credit  of  the  city  and  issue  its 
bonds  therefor  of  itself  does  not  confer 
authority  to  subscribe  to  the  stock  of  rail- 
roads and  issue  bonds  in  payment  thereof. 
Jonesboro  v.  Cairo  &-  St.  L.  R.  Co.,  i^Am. 
&*  Eng.  R.  Cas.  615,  wo  U.  S.  ig2,  4  Sup. 
Ct.  Rep.  67. 

The  grant  of  power  to  the  trustees  of  a 
township  to  borrow  money  for  the  purpose 
of  paying  the  amount  subscribed  by  the 
township  to  the  stock  of  a  railroad  carries 
with  it  the  necessary  incidental  power  of 
exjcutingand  delivering  such  evidences  of 
mdebtedness  as  are  sanctioned  by  the  known 
usages  of  business  in  such  cases;  and  it  is, 
therefore,  competent  for  tlie  trustees  to  is- 
sue the  negotiable  bonds  of  the  township  in 
payment  for  the  stock  subscribed,  and  it  is 
no  ground  of  objection  that  such  bonds 
were  delivered  direct  to  the  compay,  at  par, 
by  way  of  making  such  payment.  State  ex 
rel.  v.  Goshen  Tp.,  14  Ohio  St.  569. — AP- 
PROVING Com.  ex  rel.  v.  Allegheny  County 
Com'rs,  37  Pa.  St.  237.  Reviewing  Coe  v. 
Columbus,  P.  &  I.  R.  Co.,  10  Ohio  St.  372. 

272.  When  power  to  subscribe, 
ete.,  includes  power  to  issue  honds. 
— Where  a  statute  authorizes  municipal  of- 
ficers "  with  the  consent  of  a  majority  of  the 
corporation  comprising  said  city  "  to  sub- 
scribe money  to  a  railroad,  and  to  borrow 
money  to  pay  the  same,  the  power  is  there- 
by conferred  upon  such  officers  to  issue 
bonds  to  pay  the  subscription.  Milner  v. 
Pensacola,  2  Woods  {U.  S.)  632.  Major, 
etc.,  of  Griffin  v.  Inman,  57  Ga.  370.  Adams 
v.  Lawrence  County,  2  Pittsb.  (Pa.)  60.  Go- 
shorn  V.  Ohio  County  Sup'rs,  i  W.  Va.  308. 
—Approving  Baltimore  &  O.  R.  Co.  v. 
Gallahue,  12  Gratt.  (Va.)  655. 

Where  a  charter  provides  that  the  pay- 
ment of  a  municipal  subscription  to  stock 
shall  be  made  upon  such  terms  and  in  such 
manner  as  the  company  and  tiie  county 
may  agree  upon,  an  agreement  to  pay  in 
coupon  bonds  is  binding,  and  the  bonds  are 
valid  securities.  Woods  v.  Lawrence  County, 
I  Black  {U.  S.)  386.— Followed  in  Ells- 
worth V.  St.  Louis,  A.  &  T.  H.  R.  Co.,  98 
N.  Y.  553- 

A  statute  authorizing  a  town  to  subscribe 
to  the  stock  of  a  street  railroad,  and  to  tax 
the  property  of  a  certain  district  to  pay  the 


f 


' 


' 


-'fmmmia 


MUNICIPAL   AND    LOCAL   AID,  273,  274. 


C57 


same,  and  providing  that  in  making  the 
subscription  and  in  votinj^  the  taxes  tlie 
district  shall  be  governed  "  by  the  law  reg- 
ulating the  subscription  to  railroad  com- 
panies of  municipal  townships,"  and  the  law 
referred  to  authorizes  municipalities  to  issue 
bonds,  includes  the  authority  to  issue  bonds 
and  to  vote  a  tax  to  pay  the  same.  Ni'/i- 
ifcTson  V.  Jackson  County,  z  McCrary  (C/.  S.) 
615,  12  /•>(/.  A'fp.  676. 

Where  a  city  is  authorized  to  subscribe 
for  railroad  stock  "  as  fidly  as  any  individ- 
ual," and  the  statute  gives  an  individual  the 
right,  by  agreement  with  a  company,  to  give 
his  bond  in  payment  of  a  subscription,  the 
city  may  do  the  same.  Co/n.  ex  rcl.  v.  Pitis- 
burgh  Councils.  41  Pa.  Si.  278. 

A  statute  authorizing  a  city  to  subscribe 
to  the  stock  of  a  railroad  provided  that  the 
subscriptions  should  be  paid  in  "certificates 
of  loan."  Held,  that  the  city  had  the  power 
to  issue  in  payment  what  is  ordinarily  called 
•'  i)onds,"  negotiable  and  payable  to  bearer, 
with  interest  coupons.  "  Certificates  of 
loan  "  and  "bonds  "  are  ter-  s  meaning  the 
same  when  applied  to  such  obligations- 
Ainey  v.  Mayor,  etc.,  of  Allegheny  City,  24 
How.  {C/.  S.)  364.— Followed  in  Com.  ex 
rel.t/.  Allegheny  County  Com'rs.  40  Pa.  St. 
348. 

273.  Power  to  isNiiR  bonds  not 
implied  from  power  to  Kiilt.seribc. — 
To  enable  a  municipality  to  subscribe  to 
the  stock  of  a  r'ilroad  or  other  corporation 
the  power  must  be  expressly  conferred  by 
the  legislature  ;  and  the  power  to  subscribe 
does  nr)t  carry  with  it  the  power  to  issue 
negotiable  bonds  in  payment  of  the  sub- 
scription. That  power  must  be  conferred 
expressly  or  by  reasonable  implication  of 
the  statute.  Kelley  v.  Milan,  127  U.  S.  139, 
%  Sup.  Ct.  Rep.  I  loi.— Following 'Pulaski 
V.  Gilmore,  21  Fed.  Rep.  870;  Milan  Tax- 
Payers  z/.  Tennessee  C.  R.  Co.,  1 1  Lea  (Tenn.) 
330;  Marsh  v.  Fulton  County,  10  Wall.  (U. 
S.)  676;  Wells  V.  Pontotoc  County  Sup'rs, 
102  U.  S.  625  ;  Ottawa  v.  Carey,  :o8  U.  S. 
1 10;  Daviess  County  7'.  Dickinson,  117  U.  S. 
657.--Followf,d  in  Norton  v.  Dyersburg, 
127  U.  S.  160. — Concord \.  Kobinson,  \2i  U. 
S.  165,  7  Sup.  Ct.  Rep.  f)yj. — Following 
Claiborne  County  v.  Brooks,  1 11  U.  S.  400 ; 
Wells  V.  Pontotoc  County  Sup'rs,  102  U.  S. 
625;  Ogden  V.  Daviess  County,  102  U.  S. 
634.—  Wells  V.  Pontotoc  County  Sup'rs,  2  Am. 
iS~»  ICiig.  A\  Cas.  605,  102  U.  S.  625. — Ap- 
I'KoviNG  Lynde  v.  Winnebago  County,  16 
0  D.  R.  D.— 42 


Wall.  (U.  S )  6.  Following  Beaman  v. 
Leake  County,  42  Miss.  247  ;  Hawkins  t'. 
Carroll  County,  50  Miss.  762.— Followku 
IN  Kiitzenberger  t'.  Aberdeen,  16  Fed.  Rep. 
745;  Concord  v.  Robinson,  121  U.S.  165; 
Kelley  7-.  Milan,  127  U.  S.  1 39.  —  AV/i,V«//  v. 
Chicot  County,  26  Ark.  454.  Hill  v.  Mem- 
phis, 134  U.  S.  198.  10  Sup.  Ct.  Rep.  562. 
Oelrich  v.  Pittsburgh,  i  Pittsb.  (I'a.)  522. 
Campbell  County  v.  A'no.vville  £->  A'.  A'.  Co.,  6 
Coltlw.  (Tenn.)  59S.  Milan  Tax-Payers  v. 
Tennessee  C,  P.  Co.,  11  Lea  (Tenn.)  329. 
Green  v.  Dyersburg,  2  Flipp.  (U.  S.)  477. — 
DisriNGUiSHiNG  Louisville  &  N.  R.  Co.  v. 
Davidson  County  Court,  1  S' "  :d  (Tenn.) 
637. 

A  provision  in  a  law,  authorising  munici- 
palities to  subscribe  to  the  stock  of  railroads, 
that  the  money  should  be  paid  as  soon  as 
the  road  was  constructed  is  inconsistent 
with  the  idea  that  the  subscription  could 
be  paici  in  negotiable  bonds.  Concord  v. 
Robinson,  121  U.S.  165,  7  Sup.  Ct.  Rep.  f^yj. 

The  Missouri  Act  of  Jan.  4,  i860,  author- 
izing the  inhabitants  of  a  certain  "  strip  of 
country  "  to  subscribe  to  the  slock  of  a 
railroad  passing  through  it,  and  to  levy  a 
tax  to  pay  the  subscription,  does  not  author- 
ize the  issuing  of  bonds  to  pay  such  sub- 
scription by  so  anticipating  the  tax.  Ogden 
v.  Daviess  County,  5  Am.  &^  Eng.  R.  Cas. 
145,  102  U.  S.  634. — Followed  in  Deland 
7/.  Platte  County,  54  Fed.  Rep.  823 ;  Con- 
cord V.  Robinson,  121  U.  S.  165. 

Neither  the  Mo.  Act  of  March  3,  1868, 
amended  March  24,  1870,  authorizing  "  mu- 
nicipal townships"  to  pay  former  subscrip- 
tions to  railroad  stock  in  bonds,  nor  the  act 
of  March  24,  1868,  authorizing  "counties, 
cities,  and  towns"  to  do  the  same,  author- 
izes the  issue  of  bonds,  as  these  acts  apply 
only  to  such  public  corporations  as  entire- 
ties, and  not  to  a  "  strip  of  country  "  con- 
taining the  aggregation  of  many  parts  of 
such  townships,  etc.  Ogden  v.  Da'; less 
County,  5  Am.  &•  Eng.  R.  Cas.  145,  102  (/. 
S.  634. 

274.  Power  to  aid  railroad  does 
not  give  power  to  become  stock- 
holder.— A  statute  authorizing  a  town  to 
borrow  money  on  its  bonds  and  apply  the 
same  in  aid  of  a  railroad  does  not  authorize 
the  town  to  become  a  stockholder  in  the 
railroad,  and  a  purchaser  of  such  bonds,  with 
notice  of  their  exchange  for  stock,  cannot 
recover  on  them.  Scipio  v.  Wright,  io\  U. 
S.  665.— Distinguishing  Gould  v.  One- 


i^^ 


Gj8 


MUNICIPAL   AND    LOCAL   AID,  276-278. 


i 


onta,  71  N.  Y.  298.  Fom.owing  Gould  v. 
Sterling,  23  N.  Y.  456;  Starin  v.  Genoa, 
23  N.  Y.  ^39;  People  ex  rel.  7>.  Mead,  24  N. 
Y.  114;  Horton  7/.  Thompson,  71  N.  Y.  513. 
— Foi.i.ovvKD  IN  Thompson  7'.  Fenine,  103 
U.  S.  S06. 

275.  Power  to  sell  bonds  not 
power  to  excliaiiy:e  tlicni  for  stock.— 
A  statute  (Mupowcring  a  town  to  borrow 
money  on  its  bonds,  and  to  pay  the  money 
to  a  railroad  company  in  exchange  for  an 
equal  amount  of  railroad  stock,  does  not  au- 
thorize the  town  to  pass  the  bonds  to  the 
company  and  take  the  proper  amount  of 
stock,  and  the  bonds  are  void  in  the  hands 
of  one  who  bought  from  the  company  with 
notice  of  the  facts.  Starin  v.  Genoa,  23  A'. 
K.  439;  reversing  2<)Baib.  442. — Followed 
IN  Scipio?'.  Wright,  loi  U.  S.  665 ;  Horton 
f. Thompson,  71  N.Y.  513.  Nor  followed 
IN  People  ex  rel.  71.  Hulbert,  59  Barb.  446. 

270.  When  power  to  issue  bonds 
authorizes  ney:otisible  bonds.  —  Au- 
thority to  a  town  to  issue  bonds  in  aid  of  a 
railroad  carries  with  it  the  incidental  power 
to  issue  them  in  a  negotiable  form,  and  to 
give  them  that  character  usually  belonging 
to  this  class  of  securities.  Bushnell  v.  Be- 
loil.  10  Wis.  195. 

The  power  in  a  municipal  incorporation 
to  make  contracts  and  expenditures  carries 
with  it  the  implied  power  to  incur  indebted- 
nes.,  and  to  issue  proper  obligations  there- 
for. But  such  implied  power  does  not  con- 
fer upon  it  authority  to  issue  commercial 
security  bearing  all  the  incidents  of  com- 
mercial paper.  Hoppt-r  v.  Ccn'ington,  4 
Am.  (T-  En^.  A\  Ois.  251,  8  Fed.  Kep.  777, 
10  Biss.  {U.  .S-.)488. 

277.  Power  to  issue  not  power  to 
.sell  bonds  below  par. — A  power  to  bor- 
row money  on  the  bonds  of  a  town  at  a  cer- 
tain interest  does  not  confer  authority  to 
sell  them  bearing  that  interest  at  less  than 
par.  Starin  v.  GenO(t.2T,  y.  ]'.  439:  revers- 
ing 29  Barb.  442.  AteJiison  v.  Ihitclier,  3 
Kan.  104. 

Wiicre  a  county  subscribes  a  certain 
amount  to  the  stock  of  a  railroad,  and  is 
authorized  to  issue  its  bonds  to  that  amount 
in  pavtiient.  it  has  no  power  to  sell  the 
bonds  at  a  discount,  and  issue  bonds  to  a 
greater  amount  than  tl'.e  amount  of  the 
subscription,  and  bon^ls  issued  in  excess 
of  the  amount  of  the  subscri|ition  arc  in- 
valid. Daviess  County  v.  Ho7uard,  13  Bush 
(A>.)  101. 


278.  Powers  of  unort^nnized  ntu- 
nieipalities  and  portions  of  town- 
ships.—  A  township  not  under  township 
organization  has  no  power  to  become, 
through  the  trustees  of  schools,  a  stock- 
holder in  a  railroad  company,  with  power 
to  issue  bonds,  and  levy  and  collect  taxes 
on  the  property  in  Jie  township  to  pay  the 
bonds.  People  ex  rel.  v.  Dupuyt,  71  ///. 
651. 

Mo.  Act  of  Jan.  4,  i860,  authorizing  "any 
strip  of  country,"  not  to  exceed  ten  miles 
on  either  side  of  a  certain  railroad,  to  vote 
a  subscription  thereto,  and  authorizing  the 
county  court  to  levy  a  special  tax  to  be 
paid  to  the  company,  does  not  authorize 
the  court  to  issue  bonds  of  the  county  on 
behalf  of  such  strip.  D,  'nd  v.  Platte 
County,  54  Fed.  Kep.  823.-  jllowing  Og' 
den  V.  Daviess  County,  102  U.  S.  634. — 
Dodge  V.  Platte  County,  2  Am.  &^  Eng.  K. 
Cas.  583,  82  iV.  F.  218;  reversing  16  Hun 
285. 

A  provision  in  a  statute  authorizing  the 
inhabitants  of  a  "strip  "  along  a  railroad  to 
vote  a  subscription  to  the  railroad  is  not 
sufficiently  complied  with  by  a  record  of  the 
county  court  which  levies  a  tax  to  pay  the 
subscription  which  merely  recites  that  "  the 
taxable  inhabitants  aforesaid  voted,"  etc., 
without  any  recital  as  to  whether  a  major- 
ity voted  in  favor  of  the  subscription.  De- 
land  V.  Platte  County,  54  Fed.  Pep.  823. — 
Dlstinguishing  Lynde  7/.  Winnebago 
County,  16  Wall.  (U.  S.)  6.  Quoting 
Gause  v.  Ciarksville,  5  Dill.  (U.  S.)  172. 

Mo.  Act  of  March  23,  1868,  entitled  "  An 
act  to  facilitate  the  construction  of  railroads 
in  the  state  of  Missouri,"  and  authorizing 
county  courts  to  make  subscriptions  to  the 
capital  stock  of  railroads,  and  to  issue  bonds 
therefor  on  belialf  of  the  townships  of  the 
county,  relates  only  to  such  townships,  as 
such,  and  does  not  authorize  bonds  on  be- 
half of  a  portion  of  a  township.  Dclandw 
Platte  County,  54  Fed.  Rep.  823.  J)odge  v. 
Platte  County,  2  /hn.  &^  Fng.  A.  Cas.  583, 
82  A'.   V.  218  ;  re-.-ersing  16  ////;/  285. 

Mo.  Act  of  March  23,  186S,  as  amended 
March  24,  1870,  providing  that  "  in  all  cases 
where,  by  the  provisions  of  the  charter  tjf 
any  railroad  company,*  *  *  the  taxable  in- 
habitants of  a  portion  of  a  niunici[)al  town- 
ship of  any  comity  in  this  state  have  voted, 
or  may  hereafter  vote,  to  take  stock  in  such 
railroad  company  they  are  hereby  declared 
entitled  to  all   the   pri-vileges,  rights,  and 


MUNICIPAL   AND    LOCAL   AID,  279. 


659 


benefits  conferred  upon  coimiics  or  town- 
siiips,"  IS  in  conflict  v.iili  the  state  constitu- 
tion, art.  I,  s  28,  pr(jiiii)iiiii^  retrospective 
laws,  so  far  as  it  relates  to  votes  already 
taken.  DeUind  v.  I'UiUe  Couiify,  54  Fed. 
Rep.  S23.  —  D1STINGUI.SHINU  Anderson  v. 
Santa  Anna  Tp.,  116  U.  S.  356,  6  Sup.  Ct. 
Rep.  413  ;  BollesTA  Brirnfield,  120  U.  S.  759, 
7  'up.  Ct.  Rep.  736;  Jonesboro  I'.  Cairo  & 
Si.  L.  R.  Co.,  iioU.  S.  192,  4  Sup.  Ct.  Rep. 
67.  Following  St.  Louis  v.  Clemens,  52 
Mo.  133. 

And  the  above  statute  is  not  relieved  of 
its  retrospective  character  by  the  constitu- 
tion of  1865,  art.  4,  §  27,  which  declares  that 
"  the  general  assembly  shall  not  pass  any 
local  or  special  law  legalizing,  except  as 
aj,'ainst  the  state,  the  unauthorized  or  in- 
valid acts  of  any  officer  "  ;  nor  by  the  consti- 
tution of  1875,  art.  4,  §  53,  which  declares  that 
"  the  general  assembly  shall  not  pass  any 
local  or  special  law  legalizing  the  unauthor- 
ized acts  of  any  officer  or  agent  of  the  state, 
or  of  any  county  or  municip.'  authority." 
Delami  v.  Platte  County,  54  Fed.  Rep.  823. 

A  city  created  by  the  Nebraska  Act  of 
March  i,  1879,  out  of  a  village  possessed  of 
a  president  and  board  of  trustees  may,  until 
the  election  of  a  mayor  and  council,  exercise 
tiie  ordinary  powers  of  a  city  of  the  second 
class,  including  the  ordering  of  an  election 
to  vote  bonds  and  the  issuing  of  bonds  duly 
voted,  through  the  instrumentality  and 
agency  of  the  said  president  and  trustees. 
State  ex  rel.  v.  Babcock,  25  Neb.  709,  41  N. 
IV.  Rep.  654. 

Under  N.  Y.  Act  of  1874,  cli.  296.  sub- 
jecting a  certain  railroad  10  taxation,  and 
providing  that  county  taxes  collected  npon 
tlie  property  of  the  company  used  or  held 
by  it  in  any  of  the  towns  or  municipalities 
which  have  issued  bonds  in  aid  of  the  road 
shall  be  appropriated  to  and  paid  over  by 
thoni  to  be  applied  in  payment  of  such 
bonds,  a  village  which  has  issued  bonds  is 
entitled  to  the  county  taxes  '-"llected  upon 
the  property  of  the  company  within  the  mu- 
nicipality, alth(jugh  no  tax  for  coimty  pur- 
poses is  levied  upon  tlie  village  as  distinct 
from  the  town  of  which  it  is  a  part,  and  it 
lias  no  scjiarate  relation  to  the  treasurer  in 
the  payment  of  the  county  taxes.  Oneida 
\.  Madison  County  Siip'rs,  49  A\  Y.  S.  R. 
344,  136  A'.  \ '.  269,  32  A'.  K.  Rep.  852  ;  affirm- 
inir  40  A^.   Y,  S.  R.  985. 

A  statute  authorizing  "  any  town  or  in- 
(oiporaied  city  or  village  in  any  county" 


through  which  a  certain  railroad  might  run 
to  issue  its  bonds  in  aid  thereof  applies  to 
cities  incorporated  after  the  passage  of  the 
statute,  and  while  the  railroad  is  in  process 
of  construction  ;  but  where  the  charter  of  a 
village  forbids  it  to  incur  any  debt  in  any 
year  greater  than  the  taxes  for  such  year 
will  pay,  and  no  authority  is  given  it  to 
raise  money  by  taxation  to  pay  bonds  is- 
sued to  a  railroad,  such  village  is  taken  out 
of  the  purview  of  the  statute.  Perrin  v. 
New  London.  67  Wis.  416,  30  N.  JV.  Rep, 
623.— Limiting  Oleson  v.  Green  Bay  &  L. 
P.  R.  Co.,  36  Wis.  383. 

270.  Powers  of  ofliccrs  in  i.ssiiiii{r 
the  bonds.— Where  a  statute  provides  that 
town  bonds  are  to  be  signed  by  the  chairman 
of  the  board  of  supervisors,  and  counter- 
signed by  the  town  clerk,  the  presumption 
is  that  they  were  issued  under  the  authority 
of  the  board  of  supervisors  where  they  seem 
to  conform  strictly  to  the  statute.  Burleigh 
v.  Rochester,  5  Fed.  Rep.  667. 

It  was  competent  for  the  justices  of  the 
superior  court  of  Cook  county,  Ga.,  author- 
ized to  issue  bonds  in  payment  of  a  subscrip- 
tion by  the  county  to  railroad  stock,  to  issue 
such  bonds  when  they  were  not  regularly 
in  session  as  a  court  Coni'rs  of  Roads,  etc., 
V.  Shorter,  50  Ga.  489. 

Under  the  Illinois  statutes,  after  a  favor- 
able vote  on  a  proposition  to  issue  bonds  in 
aid  of  a  railroad,  the  municipal  authorities 
are  not  compelled  to  issue  the  bonds,  but 
may  exercise  their  discretion  in  the  matter. 
People  ex  rel.  v.  Tazewell  County,  22  ///.  147. 
— DiSTiNGUiSHK.n  IN  Shelby  County  Court 
V.  Cumberland  &  O.  I^.  Co.,  8  Bush  (Ky.)  209. 
Followed  in  Cairo  v.  Zane,  149  U.  S.  122. 
Quoted  in  Alvis  v.  Whitney,  43  Ind.  83. 

When  the  authority  to  issue  municipal 
bonds  upon  the  performance  of  certain  con- 
ditions precedent  is  conferred  by  statute 
upon  a  particular  tribunal,  such  tribunal  has 
the  sole  power  to  determine  the  fact  whether 
the  conditions  have  been  performed  or  not. 
Belo  V.  Forsvthe  County  Coni'rs,  76  A'^.  ''ar. 
489. 

Where  a  proclamation  directing  a  vote 
upon  a  proposition  to  issue  bonds  in  aid  A 
a  railroad  contains  a  stipulation  that  they 
shall  he  issued  only  in  the  event  of  the  road 
being  constructed  and  running  centrally 
through  the  county,  the  county  judge  has  a 
right  to  issue  the  bonds  on  being  satistied 
tha'  the  road  will  be  so  built.  Stale  ex  rel. 
V.  Bissell,  4  Greene  {/o7va)  328, — Followed 


i 


660 


MUNICIPAL   AND    LOCAL   AID,  280-283. 


I  !  - 


IN  Gelpck'j  V.  Dubuque,  i  Wall.  (U.  S.)  175. 
Kevikwki)  in  StoUcs  v.  Scott  County,  to 
Iowa  166. 

When  authority  is  fjiven  to  the  officers  of 
a  public  corporation  by  an  election  or  other- 
wise to  issue  a  certain  amount  <jf  the  bonds 
of  the  corporation,  the  officers  have  the 
power  and  the  right,  whenever  there  is  a 
sufficient  reason  tlierefor,  to  issue  a  less 
amount  of  the  bonds  of  the  corporation. 
C/iiago,  K.  G^  IV.  A'.  Co.  v.  Osarl-  Tp.,  46 
Kivt.  415,  26  Pac.  Rep.  710.  —QUOTING 
Leavenworth  County  Com'rs  v.  Miller,  7 
Kan.  528. 

A  statute,  in  providing  that  county  bonds 
should  not  be  delivered  by  the  commis- 
sioners until  a  sufficient  sum  had  been  pro- 
vided by  stock  subscriptions  or  otherwise  to 
complete  a  specified  railroad,  and  imposing 
upon  them  the  duty  of  delivering  the  bonds 
when  said  provision  has  been  made,  without 
indicating  any  person  or  tribunal  to  deter- 
mine that  fact,  necessarily  delegates  that 
power  to  the  commissioners ;  and  if  they, 
acting  in  good  faith  and  with  reasonable 
prudence  and  caution,  should  decide  that 
such  provision  has  been  made,  and  deliver 
the  bonds,  the  bonds  will  not  be  invali- 
dated, if  it  should  subsequently  appear  that 
the  means  were  wholly  insufficient.  Knox 
County  Com'rs  v.  Nichols,  14  Ohio  St.  260. — 
Approved  in  Venice  v.  Murdock,  92  U.  S. 
494. 

1£80.  Re-issiiiiig  canceled  or  de- 
stroyed bonds.— Where  a  city  has  issued 
valid  bonds,  it  has  power  to  enter  into 
negotiations  to  have  them  delivered  up  and 
canceled  and  new  bonds  issued  in  exchange 
without  any  special  grant  of  authority 
therefor.  Rogan  v.  IVatertown,  30  Wis. 
259,  8  Am.  Ry.  Rep.  20. 

Where  a  county  has  subscribed  to  railroad 
stock  so  as  to  create  a  debt,  and  the  county 
court  prepares  bonds,  but  after  holding 
them  for  several  years,  uncalled  for,  orders 
them  to  be  burned,  the  court  may  subse- 
quently re-issue  said  bonds  at  the  request  of 
the  company.  Matthews  v.  Blount  County, 
^Lea  {Tenn.)  120. 

281.  Constitutional  limitations.— 
A  constitutional  limitation  upon  counties 
from  giving  bonds  in  aid  of  railroads  be- 
yond a  certain  amount  does  not  forbid  a 
municipality  within  the  county  from  givinq; 
its  bonds  in  addition  to  the  maximum 
amount  of  bonds  allowed  to  be  given  by  the 
county  proper.    State  ex  rel.  v.  Lancaster 


CcHHiy   Com'rs,   6   Xcb.   214. —QUOTED  IN 
Jones  v.  Hurlburt,  13  Neb.  125. 

On  January  i,  1875,  when  the  constitu- 
tional amendment  look  effect  whicii  pro- 
hibits any  town  from  loaning  its  money  or 
credit  in  aid  of  any  corporation,  or  from  be- 
coming tlie  owner  of  any  slock  or  bonds  of 
a  corporation,  all  action  on  the  part  of  any 
town  to  issue  its  bonds  in  aid  of  a  railroad 
not  then  completed  at  once  became  nuga- 
tory, unless  wlieie,  by  operation  of  law,  or 
by  some  valid  agrcemciii,  there  had  been 
created  prior  to  that  time  a  right  to  have 
such  action  perfected  hy  the  issuing  of 
bonds.  Falconer  v.  Buffalo  &•  /.  R.  Co.,  69 
N.  V,  491,  18  Am.  Ry.  Rep.  46;  affirming  7 
Hun  499. 

282.  Statutory  conditions,  and 
limitations  of  the  power.— The  legisla- 
ture, in  granting  permission  to  a  municipal- 
ity to  issue  its  bonds  in  aid  of  a  railroad, 
may  impose  such  conditions  as  it  may 
choose, and  such  legislative  permission  does 
not  carry  with  it  authority  to  execute  nego- 
tiable bonds  except  subject  to  restrictions 
and  conditions  of  the  enablingact.  Barnum 
V.  Okolona,  148  U.  S,  393,  13  Sup.  Ct.  Rep, 
638. 

A  charter  of  a  railroad  company  author- 
izing townships,  corporate  towns,  and  cities 
along  its  line  to  subscribe  to  the  capital 
stock  of  such  company  does  not  limit  the 
operation  of  the  general  laws  of  the  state 
authorizing  counties  to  subscribe  for  stock 
in  the  company  and  to  issue  bonds  therefor. 
Kankakee  County  v.  jEtna  Life  Ins.  Co.,  106 
U.  S.  668. 

283.  Interpretation  of  particular 
statutes.— (I )  Arkansas.— 1)at.  charter  of 
the  city  of  Helena  authorized  the  city  coun- 
cil to  levy  taxes  for  the  payment  of  stock 
subscribed  by  the  city  on  behalf  of  railroads. 
On  Feb.  6,  1867,  an  act  was  passed  authoriz- 
ing the  issue  of  bonds  in  payment  of  any 
stock  which  the  city  had  or  might  subscribe 
to  a  certain  railroad.  On  April  9,  1869,  in 
pursuance  of  a  new  constitution  adopted  in 
1868,  the  legislature  passed  a  general  act  for 
the  incorporation,  classification,  and  gov- 
ernment of  cities  and  towns,  and  repealed 
all  acts  then  in  force  for  the  organization  or 
government  of  municipalities,  but  especially 
provided  that  "  such  repeal  shall  not  destroy 
or  bar  any  right  of  property,  action,  or  prose- 
cution which  may  be  vested  or  exist  at  the 
time  this  act  takes  effect,"  and  it  contained 
no  provision  expressly  limiting  or  denying 


MUNICIPAL   AND    LOCAL   AID,  283. 


G61 


to  i)re  existing  corporations  special  powers 
theretofore  conferred  by  special  acts.  Held, 
iliat  'lie  power  which  the  city  possessed 
iiiider  the  act  of  1869  was  not  repealed  or 
tiii<L'n  away.    Bubcock  v.  Helena,  34  Ark.  499. 

(2)  Illinois. — The  act  of  Feb.  26,  1869,  was 
only  intended  to  legalize  certain  municipal 
siibstripiions  to  the  stock  of  the  Chicago, 
Danville  &  Vincennes  railroad  made  prior 
to  its  passage,  and  has  no  reference  to 
bonds  issued  in  1871.  Concord  w.  Robinson, 
121  U.  S.  165,  7  Sup.  Ct.  Rep.  937. 

(3)  Mic/iigan. — A  provision  in  a  statute 
that  a  township  should  issue  its  bonds 
"  within  60  days  after  the  question  of  aid  is 
determined  "  is  permissive  only,  and  bonds 
issued  after  the  60  days  are  not  tiiereby 
rendered  invalid.  Chickaming  Tp.  v.  Car- 
penter, 106  U.  S.  663,  I  Sup.  Ct.  Rep.  620. 

(4)  Mississippi. — llic  act  of  1854,  §  5,  in- 
corporating the  town  of  Cf)lumbus,  consti- 
tuted the  mayor  and  aldermen  a  body  pol- 
hic,  and,  among  other  enumerated  powers, 
gave  them  power  to  levy  taxes  on  property. 
Held,  that  this  did  not  authorize  them  to 
issue  bonds  in  aid  of  a  railroad.  Sykes  v. 
Mayor,  etc.,  of  Columbus,  55  Miss.  115. 

And  such  bonds  could  not  be  validated 
by  the  act  of  1872,  which  declared  that  sub- 
scriiJtions  to  the  capital  stock  of  a  certain 
railroad  "not  made  in  violation  of  the  con- 
stitution "  should  be  "  legalized,  ratified, 
and  confirmed,"  as  the  constitution  tiien  in 
force  prohibited  such  bonds  unless  author- 
ized by  two  thirds  of  the  qualified  voters. 
Sykes  v.  Mayor,  etc.,  of  Columbus,  55  Miss. 
115. 

(5)  Missouri. — Under  the  act  of  March 
24,  1868,  entitled  "  An  act  to  enable  coun- 
ties, cities,  and  incorporated  towns  to  fund 
their  respective  debts,"  a  county  court  that 
had  the  management  of  the  business  of  the 
county  passed  an  order  to  issue  "  county 
funding  bonds  "  for  the  benefit  of  certain 
townships  that  had  voted  stock  in  a  railroad, 
and  for  the  purpose  of  retiring  bonds  issued 
in  pursuance  thereof.  Held,  that  such  ac- 
tion made  the  funding  bonds  the  debt  of 
the  county  whether  the  original  debt  was  or 
not.     G  s  County  v.  Shores,  95  U.  S.  375. 

A  statute  of  Missouri  authorized  county 
courts  to  subscribe  on  behalf  of  townships 
to  the  stock  of  any  railroad  building  or  to 
be  built  "  into,  through,  or  near  such  town- 
ship." Held,  that  a  road  at  its  nearest  point 
nine  miles  from  the  township,  was  "  near  "  it, 
within   the   meaning   of    the  statute,   and 


authorized  an  issue  of  bonds,  which  should 
be  held  valid  in  the  hands  of  bona  fide 
holders,  especially  after  interest  had  been 
paid  thereon  for  three  years.  Kirkbridge 
V.  Lafayette  County,  108  U.  S.  208,  2  Sup. 
Ct.  Rep.  501. 

(6)  At"Zf  Jersey. — The  authority  of  Mont- 
clair  townsiii(),  Essex  county,  to  issue  bonds 
to  be  exchanged  for  bonds  of  the  Montclair 
railroad  company  sustained.  Montclair  v. 
Ramsdell,  107  U.  S.  147,  2  Sup.  Ct.  Rep.  391, 
— Followed  in  Jonesboro  v.  Cairo  &  St. 
L.  R.  Co.,  no  U.  S.  192. 

(7)  Pennsylvania. — Under  the  act  of  Feb. 
9,  1853,  the  commissioners  of  defendant 
county  were  authorized  to  subscribe  to  the 
stock  of  the  Northwestern  railroad  com- 
pany, and  to  issue  bonds,  and  to  bind  the 
county  to  pay  them.  Curtis  v.  Butler  Coun- 
ty, 2\  How,  {U.  S.)  435;  affirming  i  Pittsb. 
(Pa.)  516. 

(8)  Tennessee. — Under  the  Code  of  1857- 
58,  §§  1 142-61,  municipal  corporations  have 
no  power  to  issue  regular  negotiable  bonds 
in  payment  of  subscriptions  to  the  stock  of 
railroads.  Kelley  v.  Milan,  127  U.  S.  139, 
8  Sup.  Ct.  Rep.  1 101. 

The  county  court  of  Wilson  county  had, 
under  the  act  of  Dec.  16,  1867,  after  certain 
preliminary  proceedings  were  taken,  lawful 
authority  to  subscribe,  on  behalf  of  the 
county,  for  stock  in.the  Tennessee  &  Pacific 
R.  Co.,  and  to  issue  bonds  of  the  county  in 
payment  therefor.  IVilson  County  v.  Third 
Nat.  Bank,  3  Am.  &*  Eng.  R.  Cas.  151,  103 
U.  S.  770. 

The  act  of  March  23,  1872,  only  conferred 
on  certain  cities  and  towns  the  power  to 
fund  their  matured  debts  by  issuing  bonds, 
and  had  no  application  to  a  case  where  a 
vote  to  subscribe  to  a  railroad  and  to  issue 
bonds  in  payment  of  the  subscription  was 
taken  at  the  same  time,  Kelley  v.  Milan, 
127  U.  S.  139,  8  Sup.  Ct.  Rep.  iioi. 

(9)  Wisconsin. — A  provision  in  the  char- 
ter of  a  village  forbidding  it  to  incur  any 
debt  or  liability  in  any  year  greater  than 
the  amount  of  the  tax  allowed  by  the  char- 
ter to  be  raised  in  such  year,  and  conferring 
no  authority  to  raise  money  by  taxation  to 
pay  bonds  issued  in  aid  of  a  railroad,  takes 
the  village  out  of  the  purview  of  ch.  93,  P. 
&  L.  Laws  of  1867,  and  it  had  no  authority 
in  1872  to  issue  its  bonds  in  aid  of  the  rail- 
road therein  mentioned,  Perrin  v.  New 
London,  67  Wis.  416,  30  N.  W.  Rep. 
623. 


1 


602 


MUNICIPAL   AND   LOCAL   AID,  284-286. 


b.  Compelling  Issuance. 


284.  Riiflit  ot'tMiiiiimiiy  to  <loiiinn<l 
tli«  lioinls. — Where  an  election  has  been 
held  in  a  township  authorizing  a  subscrip- 
tion to  the  amount  of  $i8,ooo,  and  author- 
izing the  issuing  of  a  like  amount  of  town- 
ship bonds  to  the  company  in  payment  for 
'such  stock,  but  three  days  piior  to  the 
election  it  was  agreed  between  a  portion  of 
the  electors  of  the  township  and  certain 
agents  of  the  company  that  if  the  election 
should  be  in  the  affirmative  the  amount  of 
the  subscription  and  of  the  bonds  to  be 
issued  should  be  only  $io,ooo,  and  the  elec- 
tion resulted  in  an  affirmative  vote,  author- 
izing a  subscription  to  be  made  and  bonds 
to  be  issued  in  the  amount  of  $i8,ooo,  but 
inunediately  afterwards,  in  a  proceeding  in- 
stituted by  a  taxpayer  and  an  elector  of  the 
townsliip,  the  officers  and  the  company 
were  enjoined  from  receiving  a  subscription 
or  issuing  an  amount  of  bonds  exceeding 
§io,ooo,  and  the  subscription  was  then  made 
for  $  10,000,  and  the  company  accepted  the 
subscription  and  relinquished  all  claim  to 
an  amount  of  bonds  above  that  amount, 
and  afterwards  the  railroad  was  built  and 
all  the  other  conditions  imposed  upon  the 
company  by  the  proposition  voted  upon 
were  complied  with  and  fulfilled  by  the 
company  in  pursuance  of  such  election  and 
subscription,  the  comprny  is  entitled  to  the 
bonds  of  tiie  township  to  the  amount  of 
$10,000.  Chicago,  K.  &*  IV.  A'.  Co.  v.  Ozark 
Tp.,  46  Kan.  415,  26  Pete.  Rep.  710. 

Such  agreement  that  if  the  election  should 
result  favorably  to  the  subscription  and  the 
issuing  of  the  bonds  the  amount  should  be 
only  $10,000  instead  of  $18,000  is  not  in 
effect  or  tantamount  to  a  bribe  to  the  vot- 
ers, and  will  not  necessarily  render  the  elec- 
tion wholly  invalid.  Chicago,  K.  &"  IV.  K. 
Co.  V.  Ozark  Tp.,  46  Kan.  415,  26  Pac.  Rep. 
710. 

Capitol  precinct  at  an  election  held  Oct. 
16,  1875,  voted  bonds  to  the  A.  &  N. 
R.  Co.  to  aid  in  an  extension  of  its  line. 
The  bonds  were  to  be  placed  in  the  hands 
of  a  trustee  until  the  company  had  so  far 
completed  its  road  as  to  be  entitled  to  them. 
The  company  immediately  made  a  prelimi- 
nary survey  of  its  line,  and  the  same  was 
completed  prior  to  Nov.  i,  1875.  Held,  that 
the  rigiit  of  the  company  to  the  bonds  in 
question  had  become  vested  at  the  time 
the  constitution  of  1875  ^ooV.  effect  to  such 


an  extent  that  the  company  could  require 
tiic  bonds  to  be  issued,  as  provided  in  the 
proposition,  and  placed  in  the  hands  of  the 
trustee  to  await  the  final  action  of  the  com- 
pany, titate  ex  rcl.  v.  Lancaster  County 
Com'rs,  6  Ned.  214. 

285.  tliiriMdictioii  ut'cqiiity  to  com- 
pel iMsiiiiiicu  uimI  (Ivlivvry  of  bonds. 
—A  court  of  chancery  has  no  jurisdiction 
to  entertain  a  bill  to  compel  the  authorities 
of  a  town  to  issue  and  deliver  bonds  in  pur- 
suance of  a  vote  to  aid  a  railroad.  The 
proper  remedy  is  by  mandamus.  •Chicago 
D.  &■'  V.  a:  Co.  v.  St.  Anne,  101  ///.  151. 

280.  When  niandanuiM  will  lie.— 
A  proposal  of  a  railroad  comjiiiny  made  in 
proper  form  to  the  county  commissioners 
for  the  county  to  take  stock  in  the  road 
will  give  the  court  jurisdiction  to  submit 
the  matter  to  the  voters  of  the  county  ;  and 
if  the  vote  be  favorable,  the  court  is  author- 
ized to  subscribe  and  to  issue  bonds  of  the 
county,  and  if  it  refuses  to  do  so,  it  may  be 
compelled  to  act  by  mandamus.  Ex  parte 
Sehna  &•  G.  K.  Co.,  46  Ala.  230.  Ex  parte 
Selma  &•  G.  Ji.  Co.,  45  Ala.  696.  People  ex 
rel.  V.  Logan  County  Sttp'rs,  63  ///.  374. 
People  ex  rel.  v.  Harp  Snp'r,  67  ///.  62. 
Cincinnati,  W.  &^  Z.  K.  Co.  v.  Clinton 
County  Com'rs,  i  Ohio  St.  y^.  Com.  ex  rel. 
V.  Perkins,  43  Pa.  St.  400. 

But  if  such  proposal  contains  another 
proposal,  as  to  build  a  passenger  and 
wagon  bridge  across  a  river  in  the  county 
free  of  toll,  such  proposal  will  not  confer 
jurisdiction  on  the  court  to  submit  it  to  a 
vote ;  and  an  order  of  the  court,  and  an 
election  held  under  it,  will  be  invalid,  and 
will  not  give  the  court  authority  to  sub- 
scribe or  issue  bonds  ;  and  a  mandamus  in 
such  case  will  be  refused.  Ex  parte  Selma 
&•  G.  A'.  Co.,  46  Ala.  230. 

It  is  a  rule  of  construction  that  where  a 
public  body  or  officer  lias  been  empowered 
to  do  an  act  wliicli  concerns  the  public  in- 
terest the  execution  of  the  power  may  be 
insisted  on  as  a  duty,  and  the  subscription 
by  a  county  to  the  stock  of  a  railroad  is  a 
nntter  of  public  interest.  A'apa  Valley  K. 
Co.  V.  /vapa  County  Sup'rs,  30  Cal.  435. 

Where  a  subscription  is  voted  in  favor  of 
a  railroad  by  a  town,  under  a  law  which 
leaves  no  disc.etion  in  its  officers  but  to 
make  the  subscription  without  unnecessary 
delay,  a  mandamus  may  be  awarded  to  com- 
pel the  issue  and  delivery  of  the  bonds  of 
the  town,  although  no  formal  subscription 


MUNICIPAL   AND    LOCAL   AID    287, 2H8. 


663 


liiis  been  made  upon  the  books  of  the  com- 
pany. Illinois  Midlmtii  /i*.  Co.  v.  liaruett 
Sup'rs,  8  s  ///.  313. 

287.  When  iiiuiHlaiiiiiH  will  bv  rc- 
I'lisvil. — If  the  vote  of  a  county  is  in  favor 
of  a  subscription  to  a  railway,  under  a  cliar- 
ler  autliori/ing  a  subscription  in  like  man- 
ner and  witli  tlie  like  eflect  as  is  provided 
in  the  III.  "act  to  provide  for  a  j^eneral  sys- 
tem of  railroad  incorporations,"  approved 
Nov.  5,  1849,  and  acts  amendatory  thereof, 
the  county  authorities  will  have  a  discretion 
either  to  make  or  withhold  tlie  subscrip- 
tion, and  they  cannot,  by  mandamus,  be 
compelled  to  make  the  subscription.  Peo- 
ple ex  rel.  v.  Cass  County,  77  ///.  438.— Ap- 
I'RoviNC.  People  ex  rel.  v.  Dutcher,  56  111. 
145.  Distinguishing  People  ex  rel.  v. 
L  ifjan  County,  63  III.  377. 

Where  a  statute  leaves  it  to  the  discretion 
nf  a  court  as  to  the  amount  that  shall  be 
subscribed  by  a  county  to  the  stock  of  a 
railroad  not  to  exceed  a  specified  limit,  and 
the  naked  proposition  is  submitted  to  a  vote 
as  to  whether  the  taxpayers  favor  a  sub- 
scription, without  specifying  any  amount,  a 
favorable  vote  does  not  give  the  company 
any  vested  right  that  will  prevent  tiie  legis 
lature  from  repealing  the  statute  after  the 
vote  is  taken,  and  before  the  bonds  are 
issued  ;  and  in  such  case  a  mandamus  to 
compel  the  court  to  issue  the  bonds  is 
l)roperly  refused.  Cirvington  <&*  /-.  R.  Co.  v. 
Kenton  County  Court,  12  />'.  Mon.  (A/.)  144. 
—Distinguished  in  State  v.  Central  Iowa 
K.  Co..  71  Iowa  410,  32  N.  W.  Rep.  410. 

In  such  cases  the  legislature  has  the  right 
to  repeal  the  statute  at  any  time  before  tlie 
privilege  of  subscribing  has  been  so  far  ex- 
ercised as  to  give  vested  rights.  Covington 
6»  L,  R.  Co.  v.  Kenton  County  Court,  1 2  B. 
Mon.  (Ky.)  144. 

Where  there  is  danger  of  a  misapplication 
of  funds  subscribed  by  a  county  in  aid  of  a 
corporation,  a  court  of  equity,  and  also  a 
court  of  law,  should  refuse  to  enforce  the 
subscription  until  the  corporation  properly 
secures  the  appropriation  of  the  bonds  or 
their  proceeds  in  accordance  with  the  terms 
of  the  subscription.  Cumherland  &^  O.  R. 
Co.  V.  Washington  County  Court  Judge,  10 
Bush  (Ky.)  564. 

Where  a  township  issues  bonds  in  aid  of 
a  railroad,  to  be  held  by  a  third  party  until 
the  road  is  completed,  to  be  determined  by 
a  certificate  of  the  engineer,  indorsed  by 
the  chairman  of  the  county  commissioners 


and  attested  by  the  clerk,  and  the  act  under 
wiiicli  the  b(jiuls  were  issued  is  declared  iiii- 
constiiutional,  a  maiulaiiius  will  not  issue 
to  compel  such  chairman  and  clerk  to  in- 
dorse and  attest  the  certificate.  State  ex 
rel.  v.  ll'/iilesides,  30  .S'o.  Car.  579,  3  /,.  A'. 
--/•  777.  y  -*»'■  /'••  A'c/.  661. 

V*88.  Time  to  apitly  for  tin;  writ.-- 
Under  Cal.  .■\ct  of  i860,  §  2,  any  taxpayer 
has  a  right  to  institute  proceedings  in  the 
district  court  to  review  the  action  of  the 
board  of  supervisors  in  refusing  to  issue 
bonds  in  aid  of  a  railroad  within  ten  days 
from  the  time  of  its  decision  upon  the  esti- 
mate of  expenditures  presented  by  the  com- 
pany; and  during  that  time  no  proceeding 
can  be  taken  by  the  company  against  the 
board  for  such  refusal.  California  Northern 
R.  Co.  V.  Butte  County  Sup'rs,  18  Cal.  671. 

Where  a  mandamus  to  compel  the  issue 
of  town  bonds  to  a  railroad  company  in 
exchange  for  its  stock  was  not  asked  for 
until  nearly  six  years  after  the  relator's 
right  accrued — held,  that  in  exercising  the 
discretion  of  the  court  in  reference  to  the 
writ  the  delay  would  not  be  treated  as 
laches,  in  the  absence  of  any  evidence 
that  the  town  was  injured  thereby,  espe- 
cially as  the  contract  was  mutual,  and  it 
had  been  at  all  times  since  the  relator's 
road  was  built  in  the  power  of  the  town  to 
enforce  an  exchange  of  its  bonds  for  stock 
of  the  company.  State  ex  rel.  v.  Jennings, 
48  Wis.  549,  4  N.   JV.  Rep.  641. 

There  is  no  presumption  that  if  the  rela- 
tor had  compelled  a  delivery  of  the  bonds 
before  a  certain  act  was  passed  incorporat- 
ing a  city  which  included  a  part  of  the  ter- 
ritory of  the  defendant  town  the  legisla- 
ture would  have  required  siicii  city  to  pay 
part  of  the  bonded  debt  of  the  town,  even 
if  it  had  power  to  do  so.  State  ex  rel.  v. 
Jennings,  48  Wis.  549,  4  X.  W.  Rip.  641. 

A  town,  on  July  24,  iS6g,  voted  a  subscrip- 
tion of  $30,000  to  a  railroad,  to  be  paid  by 
the  issue  of  bonds,  and  the  line  of  the  road 
was  permanently  located  through  said  town 
Oct.  15,  1S75,  and  the  road  constructed 
through  the  same  on  Aug.  i,  1880,  and  on 
Apr.  12,  1870,  the  town  did  subscribe  $10,- 
000,  $6000  of  which  was  paid  by  the  issue 
of  bonds  of  the  town,  and  on  Nov.  i,  1871, 
the  balance  of  the  bonds  voted  were  de- 
posited with  a  trustee,  but  were  afterwards 
withdrawn  by  the  consent  of  the  company 
in  1875  and  destroyed,  the  supervisor  and 
town  clerk  giving  their  obligation  that  the 


I 


G04 


MUNICIPAL   AND   LOCAL   AID,  28U-2U3. 


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Ml 

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town  shnulfl  execute  to  ilic  company  bonds 
In  the  amount  of  824.0CKJ  u|)on  llic  coniple- 
tiiin  of  its  road.  Application  was  made  for 
a  mandamus  in  1881  to  compel  llie  issue  of 
sucii  bonds.  //<•/</,  tiiai  llie  case  came 
within  the  ex[)ress  provisions  of  tiie  acts  of 
1874  and  1877  limiting;  the  time  for  tlic 
enforcement  of  such  liabilities.  People  fx 
rel.  V.  Granville,  104  ///.  285. 

I'rior  to  the  passage  of  the  act  of  1874 
bonds  of  a  townsiiip  voted  in  aid  of  a  rail- 
road company  were  deposited  in  the  hands 
of  a  trustee,  to  i)e  delivered  to  the  company 
at  a  subsequent  time.  liut  in  1875  tlie 
bonds  were  given  up  to  tiie  town  by  the 
assent  of  tiie  company  and  destroyed,  so 
that  at  the  passai^e  (jf  the  amendatory  act 
of  iS,/,  or  afterward-, tliere  was  no  such  de- 
posit with  a  trustee.  Held,  tliat  tlie  case 
would  not  fall  within  tlie  exceptions  iti  a 
similar  proviso  in  the  latter  act.  And  the 
fact  that  on  the  return  of  the  bonds  the 
supervisor  and  clerk  of  the  town  gave  their 
sealed  obligation  to  the  company  that  the 
town,  upon  the  completion  of  the  road, 
should  execute  to  the  company  bonds  to 
the  amount  of  $24,000,  which  remained  with 
the  trustee,  will  not  bring  tlie  case  within 
such  exception,  <is  such  obligation  was  but 
the  individual  one  of  the  supervisor  and 
clerk.  People  ex  rel.  v.  Granville,  104  ///.  285. 

289.  Deiiiaiid  and  tender  of  hiiI>- 
8cri|>tion  book  or  cortificates. — 
Tliough  a  county  be  compelled  by  law  to 
subscribe  to  the  stock  of  a  railroad,  yet  the 
company  cannot  have  a  writ  of  mandamus 
to  compel  it  to  do  so  until  it  tenders  its 
books  to  tlie  officers  of  the  county  and  de- 
mands the  subscription.  Oroville  (S>»  V.  R. 
Co.  V.  Plumas  County  Sup'rs,  37  Cal.  354. 

An  information  for  a  writ  of  mandamus 
to  compel  a  county  judge  to  issue  the  ixjiiris 
of  his  coimty  recited  as  one  of  the  ti  rms 
upon  which  the  subscription  was  made 
"that  said  county  was  to  receive  for  each 
as  issued  a  certificate  for  the  same  amount 
of  stock  in  said  company."  Held:  (i)  that 
an  actual  tender  of  the  certificate  of  stock 
was  not  a  condition  precedent  to  the  issue 
or  delivery  of  the  county  bonds  ;  (2)  that 
in  an  information  for  a  writ  of  mandamus 
it  is  only  necesrary  on  the  pint  of  the  relator 
to  allege  a  readiness  and  willingness  to  is- 
sue tiie  certificate  when  the  bonds  are  de- 
livered. Slate  ex  rel.  v.  Wapello  County,  9 
Io7va  28S.  Illinois  Midland  P.  Co.  v.  Par- 
net  t  Sup'rs,  8  J  III.  313. 


21)0.  I'artic'M. — A  county  was  divided 
after  it  had  issued  its  negotiable  bonds  in 
aid  of  a  railroad,  the  statute  making  pro- 
vision for  an  apportionment  (jf  the  liability. 
Subse(|uently  a  statute  was  passed  authoiiz- 
ing  the  county  to  compromise  its  indebted- 
ness, and  to  issue  new  bonds,  acting  f(jr 
itself  and  the  territory  that  liafi  been  taken 
oil.  Held,  that  in  suing  on  the  nev  bonds 
it  was  not  necessary  to  make  the  parts  of 
the  new  counties  taken  ofT  defendants,  as 
the  original  county  was  made  the  repre- 
sentative of  all.  Carter  County  v.  Sinton, 
120  U.  S.  517,  7  Sup.  Ct.  Pep.  650.  Colum- 
bia County  Coin'rs  v.  Kin^,  13  I'la.  451. 

m>l.  Petition. — Where  a  town  votes 
to  guarantee  840,000  of  the  bonds  of  a  rail- 
road, to  be  secured  by  a  mortgage  on  the 
road,  making  the  guaranty  and  taking  the 
security  are  intended  as  one  transaction,  and 
the  town  authorities  cannot  be  compelled 
to  act  upon  separate  demands  by  holders  of 
a  part  of  the  amount  of  the  bonds.  In 
such  a  case,  where  a  holder  of  but  a  part  of 
the  bonds  applies  for  a  mandamus  to  com- 
pel the  town  officers  to  discharge  their 
duty,  it  is  properly  refused  where  he  prays 
in  his  petition  only  for  a  mandamus  to 
compel  the  officers  to  guarantee  the  partic- 
ular bonds  held  by  him.  Douglas  v.  C/iat- 
ham,  41  Conn.  211. 

202.  Itit^lit  to  pnt  in  a  dcfcoNe.— 
In  a  mandamus  proceeding  to  compel  a 
county  to  subscribe  to  the  stock  of  a  rail- 
road, after  a  vote,  where  the  question  of  the 
legality  of  the  vote  was  in  issue,  the  board 
of  supervisors  had  a  right  to  appoint  a  com- 
mittee of  their  number  to  employ  counsel, 
prepare  evidence,  and  appoint  other  agents 
for  the  purpose  of  defending  the  interests 
of  the  county.  Gillett  v.  Logan  County 
Sup'rs,  67  ///.  256. 

The  county  judge  has  power  to  bind  the 
county  by  employing  counsel  to  resist  an 
application  of  a  railroad  company  for  a 
mandamus  to  compel  him  to  subscrilie  for 
its  stock,  and  to  .issue  the  bonds  of  the 
county  to  pay  the  subscription,  and  ii  is 
the  duty  of  the  county  levy  court  to  make 
provision  for  the  payment  of  a  reasonable 
compensation  to  such  counsel  for  the  ser- 
vices   rendered    under    such    employment. 

Washington  County  Court  v.  Thompson,  13 
Bush  (A'f.)  239. 

21>;$.  ifetiirn  or  answer.— The  only 
proper  return  to  a  peremptory  writ  of  man- 
damus is  a  certificate  of  compliance  with  its 


MUNICIPAL   AND    LOCAL    All),  l-".»4. 


(ii;5 


requisitions,  without  furtlier  excuse  or  de- 
la\'.     People  ex  rel.  v.  Harnett,  91  ///.  422. 

Wlicre  ii  |)erempti>ry  writ  of  nuiiulainus 
lias  liceii  granted  to  compel  a  town  to  issue 
iis  corporate  bonds,  it  is  too  late  to  object  to 
the  rate  of  interest  required  and  tlic  time 
the  bonds  are  to  run.  Such  questions 
should  have  been  presented  and  determined 
before  the  writ  was  issued.  People  ex  rel, 
V.  liarnetl,  91  ///,  422. 

A  willingness  expressed  to  execute  and 
tlcliver  the  bonds  in  pursuance  of  a  writ  of 
mandamus  upon  receipt  of  a  certificate  of 
stock,  and  a  refusal  to  give  such  certificate, 
/'/  serins,  will  excuse  the  town  from  obeying 
the  mandariH"-  rntil  the  company  is  ready 
to  give  the  certificate;  but  where  no  such 
olTi  I  's  made,  nor  any  willingness  expressed 
to  deliver  the  bonds,  a  failure  of  the  com- 
pany to  tender  the  stock  will  furnish  no  ex- 
cuse for  not  obeying  the  writ.  People  ex 
rel.  V.  liaritett,  91  ///.  422. 

A  return  to  a  mandamus  to  compel  a 
county  to  issue  bonds  to  a  railroad  is  good 
on  demurrer  that  states  that  the  apparent 
majority  vote  in  favor  of  the  subscription 
was  made  up  entirely  of  illegal  votes,  with- 
out stating  wherein  the  votes  were  illegal. 
People  ex  rel.  v.  Logan  County  Sitp'rs,  63  ///. 

374. 

Where  a  petition  for  a  mandamus  to  com- 
pel township  olhcers  to  subscribe  to  the 
capital  stock  of  a  railroad  company  and  '  - 
sui;  corporate  bonds  sets  out  the  conditions 
u|>oii  whicli  the  township  voted  the  sub- 
!;cri|)tion,  aixi  avers  performance  of  them, 
if  the  answer  of  the  defendants  substantially 
<!enies  the  performance  of  such  conditions, 
stating  wherein  they  have  not  been  per- 
formed, it  will  be  good  on  general  demurrer, 
although  it  may  contain  unnecessary  aver- 
nieiits  and  irrelevant  matter.  People  ex  rel. 
V.  1 1  olden,  gi  ///.  446. 

t2t>4r.  Uiisivailalilc  (lefeiLscs. — Where 
a  municipality  has  become  legally  bound  to 
subscribe  to  railroad  stock  and  to  issue  its 
bonds  in  payment,  and  a  compromise  is  ef- 
fected afterwards  whereby  it  is  agreed  that 
it  may  issue  a  less  amount  of  bonds,  the  de- 
livery of  the  less  amount  is  not  a  donation; 
nor  is  the  fact  that  the  road  does  not  touch 
the  municipality,  and  is  not  one  of  local 
interest,  a  good  defense  in  an  action  to 
compel  it  to  issue  the  bonds  under  the  com- 
promise. People  ex  rel,  v.  San  Francisco 
Sup'rs,  27  Cal.  655. 

Upon  an  application  for  a  mandamus  to 


compel  a  town  clerk  to  countersign  bonds 
which  had  been  e.xoculed  by  the  town  su- 
pervisor, the  clerk  cannot  set  up  matters 
atlecting  the  legality  of  the  steps  recjuired 
by  law  to  be  taken  before  the  bonds  could 
pro|)erly  issue  as  a  reason  for  refusing  to 
countersign  them,  his  signing  being  but  a 
ministerial  act.  Houston  v.  People  ex  rel., 
55  ^11-  398,  I  yliH.  /»>.  Pep,  104.  — DisTiN- 
uuisHKi)  IN  IV)  I  lie  ex  rel.  v.  Cline,  63  III. 

394. 

The  fact  that  a  company  has  encumbered 
its  road,  or  given  a  lease  thereon,  so  as 
to  lessen  t'  value  of  stock,  ur  issued  a 
large  amouiiL  of  stock  to  another  company, 
the  lessee  of  the  r<  d,  affords  no  defense 
against  an  applicaticu  to  compel  a  C(jirity 
to  subscribe  a  sum  autliorized  by  a  vote  of 
its  citizens  at  a  legal  election.  People  ex 
rel.  v.  Logan  County  Sup'rs,  63  ///.  374. 

It  cannot  be  urged  in  defense  to  ;i  petition 
for  a  mandamus  for  the  issue  of  corporate 
bonds  voted  that  the  company  suing  had 
purchased  another  railroad  or  exchanged 
stock  with  such  oiher  company,  where  there 
is  no  such  defense  alleged  in  the  answer, 
but  only  a  consolidation  with  such  company 
is  averred.  Illinois  Midland  K.  Co.  v.  Bar- 
neit  Sup'rs,  85  ///.  313. 

A  decree  enjoining  county  commissioners 
from  issuing  certain  bonds,  made  in  an  ac- 
tion to  which  the  persons  claiming  a  right 
to  them  are  not  parties,  is  no  bar  to  an  ac- 
tion by  such  parties  to  compel  the  issue  of 
those  bonds.  Atchison,  T,  &^  S.  F.  R.  Co. 
V.  Jefferson  County  Com'rs,  12  fCan.  127, 

On  mandamus  to  compel  a  county  to 
make  a  si^bscription  to  a  railroad  in  pursu- 
ance of  a  vote,  the  return  showed,  as  cause 
against  the  remedy  sought,  that  the  rlirec- 
tors  of  the  company,  in  building  the  road, 
gave  to  the  contractors  too  large  a  sum. 
Held,  no  defense;  that  the  directors  had 
the  power  to  make  contracts  binding  on 
the  stockholders.  People  ex  rel.  v.  Logan 
County  Sup'rs,  63  ///.  374.— Quoted  in  Gil- 
man,  C.  &  S.  R.  Co.  V.  Kelly.  77  HI-  426. 

A  municipal  township  voted  bonds  to  aid 
a  railroad  on  an  agreed  line  through  the 
township,  and  made  a  subscription  to  the 
capital  stock  of  the  company,  and  received 
and  retained  the  certificates  of  stock  is- 
sued to  it.  The  proceedings  of  the  board  of 
county  commissioners  affirmatively  showed 
that  all  the  requirements  of  the  statute  au- 
thorizing such  vote  and  empowering  such 
subscription   had   been   duly  observed,  the 


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MUNICIPAL   AND   LOCAL   AID,  295-207. 


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11 


.railroatl  having  been  constructed  through 
the  towiisliip  in  all  respects  in  strict  compli- 
ance with  the  terms  of  the  subscription,  and 
regularly  operated.  //(7r/,  in  an  action  to 
compel  the  issue  and  delivery  of  the  bonds 
voted,  that  it  is  estopped  from  asserting 
that  the  petition  presented  to  the  board 
of  county  commissioners  requesting  an 
election  to  be  called  at  which  to  vote  the 
bonds  was  not  signed  by  two  fifths  of  the 
resident  taxpayers  of  the  township,  the 
board  of  county  commissioners  having  found 
and  determined  at  the  time  of  its  presenta- 
tion that  it  was  so  signed  and  was  legal  in 
all  other  respects,  and  the  railroad  having 
been  constructed  through  the  township  on 
the  faith  that  all  the  statutory  requirements 
had  been  complied  with,  as  shown  by  the 
journal  of  the  county  board.  Hutchinson 
&^  S.  A'.  Co.  V.  Kingman  County  Covi'rs,  48 
.Kan.  70,  28  Pac.  Rep.  1078. 

205.  Burden  of  proof— Evidence. 
— In  a  suit  by  a  railroad  company  to  enforce 
the  issuing  of  bonds  by  a  municipality  for 
its  use,  the  burden  of  proof  is  upon  the 
railroad  company  to  show  affirmatively  that 
tlie  issue  of  the  bonds  was  authorized  by  a 
vote  of  the  people,  had  pursuant  to  a  law 
providing  therefor,  prior  to  the  adoption  of 
the  present  constitution,  and  the  law  under 
which  the  election  is  held  must  be  substan- 
tially complied  with,  or  the  election  will 
confer  no  authority.  Chicago  6>»  /,  K.  Co. 
v.  Mallory,  5  Am.  (^^  Eng.  R.  Cas,  139,  101 

///.  583- 

A  town  voted  to  guarantee  the  bonds  of 
a  railroad  company  to  a  certain  amount,  to 
be  secured  by  a  second  mortgage  on  the 
road.  The  bonds  were  issued  and  known 
as  second  mortgage  bonds,  but  the  mort- 
gage in  fact  was  a  third  mortgage,  a  second 
mortgage  having  been  executed,  which  had 
been  released  by  a  vote,  but  no  release  exe- 
cuted. Nclti,  that  it  was  competent  to 
show  by  parol  evidence  that  the  bonds  in 
question  were  known  as  second  mortgage 
bonds,  and  were  the  ones  intended  when 
the  town  voted  on  the  guaranty.  Doug/as 
v.  Chatham,  41  Conn.  211. 

2!><(.  Disobedience  and  piinisli- 
incnt  therefor.— In  a  proceeding  by  at- 
tachment to  compel  a  town  to  obey  a  man- 
damus requiring  it  to  issue  its  bonds  to  a 
railroad  company,  it  is  no  concern  of  the 
town  for  whose  use  the  suit  may  be  prose- 
cuted, or  to  whom  the  bonds  may  go  when 
issued  ;  the  fact  that  the  road  has  gone  into 


the  hands  of  a  receiver  is  no  defense,  if  the 
receiver  makes  no  objection  ;  nor  the  fact 
that  the  affairs  of  the  company  have  been 
fraudulently  managed.  People  ex  rel.  v. 
Barnett  Sup'rs,  91  ///.  422. 

A  court  of  equity  will  not  punish  an 
officer  who  is  being  used  as  a  mere  instru- 
ment by  which  a  court  of  law  is  enforcing 
its  judgment.  So  where  a  railroad  com- 
pany obtains  a  mandamus  against  the  judge 
of  a  county  court  to  compel  him  to  issue 
county  bonds  in  payment  of  a  subscription 
to  its  stock,  and  before  he  has  complied 
certain  taxpayers  enjoin  him  from  issuing 
the  bonds,  but  do  not  enjoin  the  com[,i:iny 
from  enforcing  the  writ,  the  court  issuing 
the  mandamus  had  the  right,  and  could  not 
refuse,  to  compel  obedience  to  it,  and  the 
injimclion  interposed  no  legal  obstacle  to 
its  enforcement.  Cumberland  &*  0.  R.  Co. 
v.  Washington  County  Court  Judge,  10  Rush 
(Ky.)  564.— Quoting  Ex  parte  Fleming,  4 
Hill  (N.  Y.)  582. 

297.  Canadian  cases.  —  A  writ  of 
mandamus  to  compel  the  issue  of  deben- 
tures by  a  municipal  corporation  under  a 
by-law  in  aid  of  a  railway  will  not  be 
granted  upon  motion,  but  the  applicant 
must  bring  his  action,  /n  re  Canada  Atl. 
R.  Co.,  3  Ont.  291.— Following  Grand 
'Junction  R.  Co.  f.  Peterborough  County, 
6  Ont.  App.  339. — In  re  London,  H.  i&->  B. 
R.  Co.,  36  U.  C.  Q.  B.  93. 

The  corporation  of  the  county  of  Ottawa 
under  the  authority  of  a  by-law  undertook 
to  deliver  to  the  Montreal,  O.  &  W.  R.  Co., 
for  stock  subscribed  by  it,  2000  deben- 
tures of  the  corporation  of  $100  each,  and 
subsequently,  without  any  valid  cause  or 
reason,  refused  to  issue  said  debentures. 
In  an  action  by  the  company  against  the 
corporation  solely  for  damages  for  its 
refusal — held,  that  the  corporation,  apart 
from  its  liability  for  the  amount  of  the  de- 
bentures and  interest  thereon,  was  liable 
under  arts.  1065,  1073,  1840,  and  1841,  C.  C, 
for  damages  for  breach  of  the  covenant. 
Ottaiua  County  v.  Montreal,  O.  <S>'  IV.  R.  Co., 
14  Can.  Sup.  Ct.  193;  affirming  i  Montr.  L. 
R.  46,  which  affirms  26  L.  C.  Jur.  148. 

A  township  corporation  passed  a  by-law 
that  the  reeve  should  make  out  debentures 
not  exceeding  S5000,  which  should  be 
sealed  by  the  corporate  seal,  and  signed  by 
him  and  the  treasurer;  and  that,  provided 
the  grading  of  defendant's  railway  should 
be  completed  to  a  certain  point  by  a  day 


MUNICIPAL  AND   LOCAL  AID,  208-300. 


667 


■m 


mentioned,  the  reeve  should  subscribe  for 
shares  in  defendant's  company  to  the  ex- 
tent of  $5000011  behalf  of  the  corporation, 
and  deliver  said  debentnres  to  the  com- 
pany in  payment  therefor.  By  36  Vict.  98, 
O,  the  by-law  was  confirmed.  On  applica- 
tion for  a  mandamus  to  the  reeve  to  make 
such  subscription  and  delivery— //^A/,  un- 
necessary to  show  an  agreement  by  the 
municipality  to  take  the  stock,  or  a  written 
sul)scription,  or  to  make  the  treasurer  or 
the  corporation  parties  to  the  application, 
and  a  mandamus  was  granted  with  costs. 
///  re  Canada  C.  li.  Co.,  35  U.  C.  Q.  B.  390. 

The  Grand  J.  R.,  being  a  local  work  of 
the  province  of  Ontario,  the  act  of  33  Vict, 
c.  53,  was  ultra  vires  of  the  dominion 
parliament,  and  the  company  was  therefore 
not  in  existence  when  the  defendants 
}i;r<inted  the  bonus,  or  when  tiie  act  34  Vict, 
c.  48,  validating  the  by-law,  was  passed  ;  and 
as  yj  Vict.  c.  43,  O,  which  was  the  first  act 
by  a  legislature  having  power  to  incorporate 
ihein,  did  not  legalize  the  by-law  in  favor 
o^  the  plaintiffs,  they  were  not  entitled  to  a 
mandamus  to  compel  the  delivery  of  the 
debentures.  Grand  Junction  R.  Co.  v.  Peter- 
ooroui!;h  County,  6  Out.  App.  339 ;  reversing 
43  U.  C.  Q.  li.  302. — Distinguishing  To- 
ronto &  L.  H.  R.  Co.  V.  Crookshank,  4 
U.  C.  Q.  B.  309 ;  Smith  v.  Spencer,  12  U.  C. 
C.  P.  277. 

c.  Restraining  Issuance. 

298.  When  un  action  will  lie,  s^n- 
erally.— Where  a  bill  was  filed  for  an  in- 
junction to  restrain  county  officers  from 
issuing  bonds  to  a  railroad,  and  the  proof 
showed  that  they  had  been  issued  and  de- 
livered before  the  commencement  of  the 
suit,  the  bill  w,>s  properly  dismissed,  as  the 
court  was  powerless  to  grant  the  relief 
sought.     Menard  V.  Hood,  63  ///.  i2r. 

Where  an  election  was  held  in  1883  for 
the  purpose  of  obtaining  authority  to  issue 
bonds  in  aid  of  a  railroad  corporation,  which 
the  commissioners  declared  to  hav  been 
ratified  by  a  majority  of  the  qualified  voters, 
but  It  was  not  attempted  to  issue  the  bonds 
until  i886~/tetd,  that  an  actio.i  brought  to 
attack  the  finding  of  the  commissioners 
when  they  attempted  to  issue  the  bonds 
was  not  barred.  McDowell  v.  Massachu- 
setts &^S.  Constr.  Co.,g6  N.  Car.  514,  2  5.  E. 
Rep.  351.— Distinguished  in  Jones  z/.  Per- 
son County  Com'rs,  107  N.  Car.  248. 


200.  When  a  citizen  or  taxpayer 
may  sue. — It  requires  express  affirmative 
legislati(jn  to  autliorize  an  appropriation  by 
a  county  to  aid  in  the  construction  of  a 
railroad,  and  f)onds  of  the  county  issued  for 
such  purpose  witliout  such  authority  are 
void,  and  an  injunction  will  lie.  at  the  suit 
of  a  citizen  and  taxpayer  of  the  county,  in 
his  own  right,  to  prevent  the  issuing  and 
selling  of  such  bonds.  Delaxvare  County 
Com'rs  v.  McClintock,  51  Ind.  325.  C/iest- 
nutivood  V.  Hood,  68  ///.  132.  Allison  v. 
Louisville,  H.  C.  <S^•  W.  R.  Co.,  9  Bush 
{Ky.)  247.  Curtenius  v.  Hoyt,  yj  Mich.  583. 
—Distinguishing  Miller  v.  Grandy,  13 
Mich.  540. — Ayers  v.  Lawrence,  59  ^V.  Y. 
192,  \  T.  &»  C.  add.  5 ;  rex'ersing  63  Barb. 
454.- Followed  in  Metzger  v.  Attica  & 
A.  R.  Co.,  79  N.  Y.  \7\.— Lynch  v.  Eastern, 
L.  F.  &>  M.  R.  Co.,  12  Am.  &■*  Eng.  R.  Cas. 
652,  57  IVis.  430,  15  A^.  M^.  Rep.  743,  825. 

Where  he  has  no  adequate  remedy  at  law, 
a  taxpayihg  property  holder  has  a  right,  in 
his  own  name,  to  resort  to  equity  to  restrain 
by  injunction  a  municipal  corporation  and 
its  officers  from  illegally  creating  debts 
which  will  increase  his  burden  of  taxation. 
Hoiigman  v.  Chicago  iS>«  St.  P.  R.  Co.,  20 
Minn.  48  {Gil.  36). 

A  taxpayer,  for  sufficient  cause,  can  inter- 
vene in  apt  time  and  enjoin  the  issuing  of 
municipal  bonds,  but  this  must  be  done 
before  the  bonds  are  issued  and  negotiated 
and  pass  into  circulation  as  commercial 
securities.  Belo  v.  Forsythe  County  Com'rs, 
76  .V.  Car.  489. 

A  court  of  equity  has  jurisdiction  upon  a 
bill  filed  by  fifteen  or  more  citizens  and  tax- 
payers of  a  county  or  corporation  to  enjoin 
the  issuance  of  bonds  of  the  county  or  cor- 
poration in  payment  of  a  subscription  to 
railroad  stock,  if  the  proceeding  has  not 
been  properly  conducted,  notwithstanding 
the  fact  that  a  statute  provides  a  method 
whereby  the  votefs  may  contest  an  election 
to  vote  such  subscription.  Redd  v.  Henry 
County  Sup'rs,  31  Gratt.  (Va.)  695. 

Where  a  company  has  made  such  a  ma- 
terial change  in  the  route  of  its  road  as  to 
release  subscribers  to  its  stock,  taxpayers  of 
a  town  that  has  subscribed  may  maintain  an 
action  against  the  town,  its  officers,  and  the 
company  to  restrain  the  issuing  of  bonds 
in  payment  of  the  subscription.  Nwsen  v. 
Port  Washington,  37  Wis.  168. 

300.  anil,  when  not.— New  York 

statutes  under  which  a  county  judge  acts  in 


■  i 


I 


'M^ 


.■;;,i;.;ii.: 


i'^ 


fiGS 


MUNICIPAL   AND    LOCAL   AID,  301. 


114 


appointing  commissioncr.s  to  bond  a  town 
in  aid  of  a  railroad  constitute  liim  a  judicial 
tribunal  to  hear  and  determine  the  ques- 
tions presented  by  the  petition,  and  pro- 
vide that  his  determination  shall  have  the 
same  eflect  as  any  judgment  of  a  court  of 
record,  and  errors  of  the  judjite  in  regard  to 
matters  which  he  has  the  right  to  determine 
cannot  be  corrected  in  an  equitable  action 
by  taxpayers  against  the  commissioners  and 
the  company  to  restrain  the  issuance  of  the 
bonds,  ^lyres  v.  Lawrence,  6t,  Barb.  {N.  V.) 
454;  re^iersed  in  59  A^.   Y.  192. 

Taxpayers  of  a  town  cannot  restrain  an 
issue  of  such  bonds  on  the  ground  that 
they,  if  issued,  will  probably  increase  the 
taxes  of  the  town  at  some  future  time, 
when  it  is  not  shown  that  they  have  any  in- 
terest except  such  as  is  common  to  all  tax- 
payers of  the  town,  Ayres  v.  Lawrence,  63 
Barb.  {N.  Y.)  454;  reversed  in  59  A^.  Y.  192. 

301.  When  an  iiijiiiietioii  will  be 
granted.— A  statute  authorizing  a  city  to 
subscribe  for  stock  in  railroads  and  to  issue 
bonds  to  pay  for  the  same  does  not  author- 
ize It  to  contribute  to  a  railroad  by  indorsing 
its  bonds,  and  upon  the  complaint  of  a  tax- 
payer or  citizen  of  the  corporation  a  court 
of  equity  will  enjoin  such  indorsement. 
Blake  v.  Macon,  53  Ga.  172. 

VVMiere  a  statute  provides  two  modes,  one 
valid  and  the  other  invalid,  for  authorizing 
the  officers  of  a  municipal  corporation  to 
issue  bonds  of  the  corporation,  inasmuch  as 
the  bonds  when  issued  need  recite  only  that 
they  were  issued  under  the  statute,  without 
specifying  in  which  of  the  two  modes  the 
officers  were  authorized  to  issue  them,  and 
as  there  might  be  bona  fide  holders  of  bonds 
so  issued,  an  action  for  an  injunction,  at  the 
instanceof  a  proper  party,  will  tie  to  restrain 
the  issuance  of  the  bonds  by  the  municipal 
officers  under  the  invalid  mode  provided  by 
the  statute.  Harrinj^ton  v.  PLiinvie^u,  27 
Minn.  224,  6  A'.  \V.  Rep.  Jjj. 

It  IS  competent  for  the  state  at  common 
law,  through  its  officers,  to  maintain  pro- 
ceedings by  injunction  to  restrain  public 
corporations  from  doing  acts  in  violation  of 
the  constitution  and  laws  of  the  state.  Sec- 
tion 24  of  the  Mo.  statute  concerning  in- 
junctions (Wagn.  St.  1032),  which  provides 
that  "the  remedy  by  injunction  or  prohibi- 
tion shall  exis.  in  all  cases  where  injury  to 
real  or  personal  property  is  threatened,  and 
to  prevent  the  doing  of  any  legal  wrong 
whatever,  whenever,  in  the  opinion  of  the 


court,  an  adequate  remedy  cannot  l>e  en- 
forced by  an  action  for  dama<j;es,"  also  ap- 
plies to  such  cases.  So  held,  where  an  in- 
junction was  prayed  to  restrain  a  county 
court  from  issuing  bonds  to  pay  a  subscrip- 
tion illegally  made  to  the  capital  stock  of  a 
railroad.  State  ex  rcl.  v.  Saline  County 
Court,  51  Mo.  350,  3  Am.  Ky.  Rep.  149.— 
Reviewing  Davis  v.  Mayor,  etc.,  of  N.  Y., 
2  Duer  (N.  Y.)  663 ;  Attorney-General  v. 
Great  Northern  R.  Co.,  i  Drew.  &  Sm.  154; 
Attorney-General  v.  Mid-Kent  R.  Co.,  L. 
R.  3  Ch.  100;  Stockport  Dist.  Waterworks 
Co.  V.  Manchester,  9  Jur.  N.  S.  266;  At- 
torney-General V.  West  Hartlepool  Imp. 
Com'rs,  L.  R.  10  Eq.  152;  Attorney-General 
V.  Salem,  103  Mass.  140.  Reviewing  and 
CRITICISING  People  7/.  Miner,  2  Lans.(N.  Y.) 
396.  Reviewing  and  distinguishing 
State  V.  Parkville  &  G.  R.  R.  Co.,  32  Mo. 
496. — Followed  in  State  ex  rel.  v.  Sander- 
son, 54  Mo.  203. 

A  court  should  grant  an  injunction  pen- 
dente lite  to  restrain  officers  of  a  town  from 
issuing  bonds  in  aid  of  a  railroad,  where  it 
is  alleged  that  the  petition  presented  by  the 
taxpayers  was  so  defective  as  not  to  give 
the  town  a  right  to  issue  bonds.  And  in 
such  case  the  certificate  of  the  county  clerk 
is  not  conclusive  evidence  of  such  authority. 
Rochester  v.  Davis,  44  How.  Pr.  {N.  Y.)  95. 

Where  a  county  has  made  an  unauthor- 
ized subscription  of  stock  to  a  railroad  com- 
pany, parties  who  have  an  interest  to  defeat 
it  need  not  wait  for  the  bonds  of  the  county 
to  be  called  for  by  the  company,  nor  for 
their  issuance,  or  attempt  to  issue  them,  nor 
for  the  assessment  of  a  tax  to  pay  the  sub- 
scription, but  may  file  their  bill  at  once,  and 
obtain  an  injunction.  Winston  v.  Tennes- 
see &^  P.  R.  Co.,  I  Ba.xt.  {Tenn.)  60. 

The  authority  to  the  three  commissioners 
appointed  is  joint  to  them  all,  and  must  be 
jointly  executed,  not  by  a  majority,  as  in 
case  of  a  board  of  public  officers,  a  major- 
ity of  whom  may  act  for  the  whole  under 
the  statute.  Therefore  a  second  subscrip- 
tion, executed  by  two  only  of  said  commis- 
sioners, varying  from  the  first  in  terms,  is 
of  no  effect  as  a  subscription  for  the  town, 
and  the  first  one  is  the  only  one  remaining 
in  force ;  and  where  the  selectmen  and  treas- 
urer of  the  town  intend  to  deliver  the  bonds 
of  the  town  to  the  railroad  company  in  ac- 
cordance with  the  second  subscription,  and 
in  violation  of  the  conditions  of  the  first, 
which    were    important,    an    injunction    is 


^'"s'':#': 


MUNICIPAL  AND   LOCAL  AID,  302, 303. 


6i9 


properly  granted  restraining  said  officers 
from  so  doing.  Damiille  v.  Montpelier  &* 
St.  J.  R.  Co.,  43  Vt.  144. 

An  injunction  is  the  proper  remedy  to 
prevent  the  execution  and  delivery,  by  its 
officers,  of  tlie  negotiable  bonds  of  a  town 
or  other  municipal  corporation,  wliere  it 
appears,  upon  tiie  complaint  of  a  taxpayer 
likely  to  suffer  pecuniary  loss,  that  tiie  offi- 
cers threaten  such  execution  and  delivery 
ill  contravention  of  tlie  authority  given 
them  by  law,  or  in  violation  of  the  trust 
reposed  in  them  by  the  legislature  or  by 
the  taxable  inhabitants  of  the  municipality. 
Lmvsonv.Schnellen,  33  Wis.  288.  —  APPUOV- 
iNG  Phillips  V.  Albany,  28  Wis.  340.  Fol- 
lowing Judd  V.  Fox  Lake,  28  Wis.  583; 
Whiting  V.  Sheboygan  &  F.  du  L.  R.  Co., 
25  Wis.  167. 

In  an  action  for  specific  performance  of  a 
contract  of  defendant  town  to  issue  bonds 
in  payment  of  its  subscription  to  the  stock 
of  the  M.,  M.  &  G.  B.  !?.  Qo.—held,  tiiat  the 
subscription  was  not  binding,  because  a  ma- 
terial change  of  route  invalidates  subscrip- 
tion of  a  non-assenting  subscriber,  and  that 
defendants  are  entitled  to  positive  relief  by 
injunction  restraining  all  persons  claiming 
under  the  company  or  the  plaintiff  from  as- 
serting any  claim  against  said  town  by  rea- 
son of  such  stock  subscription.  Perkins  v. 
Port  Washington,  37  Wis.  177. — Follow- 
ing Noesen  v.  Port  Washington,  37  Wis. 
168. 

302.  When  the  writ  will  be  re- 
fused.— The  issue  of  bonds  by  a  county 
to  a  railroad  company  will  not  be  restrained 
where  the  requirements  of  the  statute  au- 
thorizing* the  issue  have  been  complied  with. 
Union  Pac.  li.  Co.  v.  Merrick  County,  3  Dill. 
(^.5.)  359. 

Where  a  complaint  by  a  taxpayer  of  a 
town  alleges  that  the  railroad  company  is 
duly  created  and  organized,  he  cannot  re- 
strain the  delivery  of  town  bonds  to  the 
officers  of  the  company  on  the  ground  that 
they  were  not  legally  elected,  where  it  ap- 
pears that  they  are  at  least  de  facto  officers. 
Sauerhering  v.  Iron  Ridge  &«•  M.  K.  Co.,  25 
Wis.  447. 

Where  it  is  understood  at  the  time  that  a 
town  votes  to  issue  bonds  in  aid  of  a  rail- 
road that  the  road  might  be  built  by  an  as- 
signee of  the  company,  a  taxpayer  of  the 
town  cannot  enjoin  the  delivery  of  the 
bonds  simply  because  ^he  road  was  com- 
plated  by  an  assignee.    In  such  case  the 


company  is  not  required  to  complete  the 
r<jad  itself  in  order  to  earn  the  bonds.  (Lyon 
and  Oiioii,  JJ.,  dissenting.)  Lynch  v.  East- 
ern, L.  F.  &•  M.  A'.  Co.,  12  Am.  Si^  Eng. 
K.  Cas.  652,  57  Wis.  430,  1 5  ^V.  W.  Rep.  743, 
825. 

Under  the  Kan.  Act  of  February  26, 
1876,  a  township  voted  to  take  stock  in  a 
railroad  company  to  the  amount  of  $27,000, 
and  to  issue  bonds  of  the  township  in  pay- 
ment therefor.  The  amount  thus  voted 
was  §614.45  in  excess  of  the  an\ount  of 
bonds  which  the  township  might  legally 
issue.  Held,  that  this  vote  was  not  a  nullity 
except  as  to  the  sum  of  $614.45,  and  that 
the  commissioners  could  not  be  restrained 
from  issuing  the  remainder  of  such  bonds. 
Turner  \.  Woodson  Comity  Com' rs,  iz  Am. 
(S>»  Eng.  R.  Cas.  600,  27  A'an.  314. 

Under  the  New  York  statutes  it  is  made 
the  duty  of  town  assessors  to  make  an  affi- 
davit that  a  majority  of  the  taxpayers  of 
the  town  have  consented  in  writing  to  an 
issue  of  town  bonds  in  aid  of  a  railroad. 
f/eld,  that,  if  the  assessors  proceed  accord- 
ing to  law,  and  make  a  regular  affidavit,  the 
supreme  court  cannot  restrain  the  comi-"-  • 
sioners  from  issuing  the  bonds  of  the  town 
on  the  ground  that  the  assessors  have  pred- 
icated their  affidavit -upon  facts  failing  to 
warrant  it.  Corwin  v.  Campbell,  45  Ho^v. 
Pr.  {N.  K.)  9. 

303.  Parties  defendant. — In  an  ac- 
tion to  restrain  the  issuance  of  railroad  aid 
bonds  the  company  to  which  the  bonds 
are  to  be  issued  is  a  necessary  party.  Pat- 
terson V.  Yuba  County  Sup'rs,  12  Cal.  106. 
People  ex  rel.  v.  Clark,  nBarb.  (^V.  Y.)  171. 

The  company  to  be  aided  is  not  bound 
by  the  judgment  in  the  injunction  suit  by 
merely  being  named  as  a  defendant  in  the 
summons  and  pleadings.  People  ex  rel.  v. 
Clark,  53  Barb.  {N.  Y.)  171. 

In  an  action  by  injunction,  when  the  peti- 
tion alleges  that  a  county  court  had  made 
an  unlawful  subscription  to  a  railroad,  and 
had  delivered  a  quantity  of  bonds  issued  to 
pay  such  subscription  into  the  hands  of  an 
agent  to  be  negotiated,  and  had  levied  a  tax 
to  pay  said  bonds  and  the  interest  thereon, 
and  the  petition  prays  that  the  subscription 
be  canceled,  and  that  the  county  court  and 
the  justices  thereof  and  said  agent  be  re- 
strained from  the  commission  of  said  acts — 
held,  that  the  railroad  and  the  agent  for 
the  negotiation  of  the  bonds  as  well  as  the 
county  court  and  its  justices  a<-e  proper  par- 


I 


oro 


MUNICIPAL   AND   LOCAL  AID,  a04-»0U. 


I-  i 


ties  to  the  action.  Stale  ix  rcl.  v.  CaUatvay 
County  Court,  51  Mo.  395,  3  Am,  Ky.  Kcp. 
172. 

;J04.  The  bill  or  petition — Where  a 
taxpayer  of  a  town  seeks  to  enjoin  commis- 
sioners from  issuing  bonds  of  a  town,  the 
complaint  must  show  that  they  are  the  offi- 
cers of  the  town  havinfj  autliority  to  issue 
the  bonds.  It  is  not  sufficient  to  allege  that 
lliey  "are  or  claim  to  be"  such  commis- 
sioners, or  that  plaintiff  is  not  informed  and 
is  not  able  to  say  whether  they  have  been 
duly  appointed  or  not.  If  they  have  no  au- 
thority *to  act,  bonds  issued  by  them  would 
be  a  nullity,  and  an  injunction  is  unneces- 
sary. Pierce  v.  Wright,  6  Lans.  {N.  Y.)  306. 
45  Himi.  I'r.  I. 

Where  the  statute  makes  affidavits  and 
consents  of  taxpayers,  acknowledged  and 
filed  as  required,  evidence  of  the  facts  there- 
in contained,  such  facts  may  not  be  attacked 
collaterally,  the  remedy  in  case  of  inaccu- 
racy being  by  proceeding  to  correct  the  rec- 
ord or  set  it  aside.  Pierce  v.  I1'rig/it,  6 
Lans.  ( ^V.   Y.)  306,  45  Ho^v.  Pr.  i . 

A  bill  to  enjoin  the  supervisor  of  a  town 
from  issuing,  and  a  railroad  from  receiving, 
bonds  charged,  "  on  information  and  belief, 
that  said  company  will  soon  demand  of  the 
supervisor  of  said  town  all  or  a  part  of  said 
bonds,  and  that  there  is  danger,  unless  said 
supervisor  is  enjoined  from  issuing  said 
bonds,  and  the  said  company  restrained  from 
receiving  the  same,  that  Siiid  bonds  will  be 
issued  and  registered."  Held,  that  this  was 
a  specific  and  positive  charge  that  there  was 
danger  that  the  bonds  would  be  issued  and 
registered  unless  the  supervisor  was  re- 
strained fruni  issuing,  and  the  company 
from  receiving,  the  bonds,  and  clearly  enti- 
tled complainant  to  an  answer.  Campbell  \. 
Paris  &>  I).  A\  Co.,  71  ///.  611. 

2.  Execution,  Form,  and  Contents. 

;)05.  Wliat  officers  tiiay  execute 
tlie  bonds. — Where  a  county  in  Illinois  is 
organized  under  the  "Township  Act,"  the 
supervisors  are  the  proper  officers  to  issue 
CDunty  bonds  in  aid  of  a  railroad.  Kanka- 
kee County  v.  .Ktna  Life  Ins.  Co.,  106  U.  S. 
66S,  2  .Sup.  Ct.  Rep.  80. 

Wiiere  a  railroad  charter  provides  that  if 
a  majority  vote  at  an  election  on  a  proposi- 
tion that  a  town  subscribe  or  donate  money 
to  the  company  to  aid  in  the  construction 
of  its  road,  the  town,  by  its  proper  corpo- 
rate authorities  shall   subscribe  and    issue 


its  bonds  for  the  amount  voted,  the  bonds 
will  be  properly  executed  by  its  supervisor 
and  town  clerk,  though  the  expression  "  cor- 
porate authorities"  does  not  ordinarily,  in 
its  application  to  townships,  signify  the  su- 
pervisor and  town  clerk.  Prairie  v.  Lloyd, 
3  Am.  &>  Eng.  K.  Cas.  58,  97  ///.  179.  Wind- 
sor V.  Hallett,  i  Am.  &^  E!njf.  A'.  Cas.  76,  97 
///.  204.  Douglas  V.  Niantic  Sav.  Hank,  3 
Aw.  &^ Eng.  R.  Cas.  S4»97  /H.  228. 

iiOa.  Sig:natui'e.— Bonds  of  a  county 
issued  in  aid  of  a  railroad  signed  by  two  out 
of  three  commissioners  are  valid  and  bind- 
ing upon  tlie  county.  Curtis  v.  Butler  County, 
24  Now.  {U.  S.)  435. 

After  a  precinct  had  regularly  voted  bonds 
to  a  company  and  the  road  had  been  built 
in  strict  conformity  to  the  proposition,  and 
before  the  bonds  had  been  issued,  the  county 
commissioners  became  apprehensive  that 
they  might  be  enjoined,  but  before  any  writ 
had  been  issued  or  served,  and  without 
knowledge  on  their  fiart,  or  of  the  company, 
that  an  injunction  had  been  allowed,  they, 
with  the  deputy  clerk,  went  to  an  adjoining 
county,  where  the  bonds  were  signed  by  the 
chairman  and  the  seal  attached.  Upon 
their  return  to  their  county,  and  before  the 
bonds  had  been  delivered,  an  injunction 
was  served  on  them.  Held,  that  the  bonds 
were  earned  when  the  road  was  completed 
according  to  the  contract,  and  the  company 
was  entitled  to  them.  Jones  v.  Hurlburt,  13 
Keb.  135,  13  A'.  W.  Rep.  5.— Kevik.wing 
AND  QUOTING  Weyauwega  z'.  Ayling,  99  U. 
S.  112. 

A  statute  which  authorized  towns  to  issue 
bonds  in  aid  of  railroads  provided  that  they 
should  be  issued  by  "  the  proper  officers  "  of 
the  town.  The  bonds  were  signed  by  the 
chairman  of  the  board  of  supervisors  and 
the  town  clerk,  the  signatures  being  litho- 
graphed, and  were  delivered  by  the  chair- 
man to  the  cotnpany.  The  town  made  de- 
fense to  a  suit  on  the  bonds  by  a  bona  fide 
holder  for  value,  after  maturity,  that  the 
bonds  in  fact  were  not  issued  until  after  their 
date,  at  which  time  the  clerk  had  censed  to 
be  an  officer,  and  his  successor  had  Ijeen 
elected  and  qualified.  Held :  (i)  that  the 
town  was  estopped  from  denying  that  the 
bonds  were  not  properly  dated  ;  (2)  that  it 
must  be  assumed  that  the  bonds  were  deliv- 
ered by  the  chairman,  with  the  assent  of  the 
clerk  who  was  in  office  at  the  time,  and, 
therefore,  issued  by  the  "proper  officers," 
within  the  meaning  of  the  statute.      Wey- 


MUNICIPAL   AND   LOCAL   AID,  307, 308. 


671 


awwega  v.  Aylhig,  99  U.  S.  1 12.  — Rkviewed 
AND  QUOTED  IN  JiJiies  V.  Hurlburi,  13  Neb. 
125. 

The  municipal  authorities  of  Statesville 
were  authorized  by  the  N.  Car.  Act  of  1861, 
ch.  176.  sul)iect  to  a  vote  of  the  qualified 
voters  of  the  town,  to  issue  certain  coupon 
bonds,  witii  a  provision  that  they  sliall  be 
signed  by  tlie  town  magistrate,  treasurer, 
and  commissioners  thereof.  After  a  vote 
approving  the  same  tlie  bonds  were  issued, 
but  signed  only  by  tlie  town  magistrate  and 
treasurer.  Hi/ii,  that  the  act  was  directory, 
and  tlie  omission  of  the  commissioners  to 
sign  the  bonds  was  not  fatal  to  a  recovery 
upon  them.  Bank  of  Statesville  v.  States- 
ville, 7  Am.  &^  Eng.  R.  Cas.  178,  84  A".  Car. 
169. 

A  municipal  by-law  for  issuing  deben- 
tures to  a  railway  which  had  been  submitted 
to  the  ratepayers  and  approved  by  them 
contained  a  clause  stating  that  the  deben- 
tures were  to  be  signed  by  the  reeve.  Held, 
tliat  the  council  had  power  to  appoint 
another  person  to  sign  the  debentures  in 
place  of  the  reeve  on  his  refusal.  Brock  Tp. 
V.  Toronto  H^  jV.  R.  Co.,  17  Grant's  Ch.  {U. 

C.)  425- 

307.  Seal. — Where  a  statute  authorizes 
a  town  to  subscribe  to  the  capital  stock  of  a 
railroad  and  to  issue  bonds  to  pay  for  such 
subscription,  and  prescribes  that  the  sub- 
scription shall  be  made  by  commissioners, 
who  are  to  execute  the  bonds  under  their 
hand  and  seal,  a  failure  to  affix  seals  to 
the  bonds  does  not  invalidate  them,  the  re- 
quirement as  to  seals  being  merely  directory 
and  a  matter  of  form,  not  of  substance. 
Draper  v.  Spriugpoi  t,  5  Am.  &->  Eng.  R.  Cas, 
205,  104  U.  S.  501.  San  Antonio  w.  Ale/taffy, 
96  U.  S.  312. — Approving  Thomas  v.  Rich- 
mond, 12  Wall.  (U.  S.)  354;  Oneida  Bank 
V.  Ontario  I5ank,  21  N.  Y.  496. 

In  such  a  case  equity  will  restrain  the  town 
fioni  setting  up  the  want  of  seals  as  a  de- 
fense at  law  to  a  suit  on  the  bonds  by  a  pur- 
ciiaser  in  good  faitii  who  bought  without 
noticing  tlie  lack  of  seals.  Bernards  Tp.  v. 
Stcbbins,  15  Am.  &^l'.Hg.  R.  Cas.  634,  109  (/. 
S.  341,  3  Sup.  Ct.  Rep.  252. 

Where  it  appears  that  the  commissioners 
iiiteiuled  properly  and  ellectually  10  execute 
the  ijoiids,  and  the  omission  (jf  the  seal  was 
\>\  misutulerstandiiig,  mistake,  or  iiiadvcr- 
tiMue,  a  court  of  equity  might  afTord  relief 
to  a  person  justly  eiitiiled  to  the  benefit  of 
ilic    instrument.     Solon   v.    Williauisbtirgh 


Sav.  Bank,  114  N.  Y.    122,  21  N.  E.  Rep. 
122. 

Where  officers  issuing  town  bonds  sign 
them,  but  neglect  to  affix  seals,  as  required 
by  law,  the  bonds  are  not  rendered  invalid 
because  a  stranger  afterwards  affixes  wafer 
seals  thereto.  Armfield  v.  Solon,  ig  N.  V. 
Stipp.  44,  45  A'.  )'.  .S'.  A'.  905,  64  Hun  633, 
mem.;  modified  in  136  N.  Y.  663,  49  A^.  Y, 
S.  R.  848,  32  A',  E.  Rep.  1063. 

With  respect  to  the  mode  in  which  corpo- 
rations aggregate  may  execute  contracts,  a 
broad  distinction  is  tat'-en  and  maintained  by 
the  authorities  between  trading  and  munici- 
pal corporations.  The  former  are  permitted 
to  incur  many  liabilities  without  using 
their  common  seal  which  the  latter  are  not 
otherwise  permitted  to  incur;  and  notwith- 
standing that  the  rule  of  the  common  law 
on  this  subject  has  received  many  modifica- 
tions in  this  country,  yet  no  case  has  been 
found  in  which  a  municipal  corporation  has 
beer,  permitted,  otherwise  than  by  its  com- 
mon seal,  to  issue  its  negotiable  bonds  for 
the  liquidation  of  its  subscription  to  the 
stock  of  a  company.  San  Antonio  v.  Gould, 
34  Te.x.  49. 

A  statute  authorizing  a  town  to  issue 
bonds  in  aid  of  the  construction  of  a  rail- 
road provided  that  they  should  be  under  the 
hands  and  seals  of  commissioners.  They 
issued  coupon  bonds  which  were  not  sealed, 
although  their  wording  showed  that  sealing 
was  intended,  and  the  coupons  were  not 
sealed.  Held,  in  a  suit  on  the  coupons,  that 
the  bonds  and  coupons  were  void.  Avery 
v.  Springport,  14  Blatchf.  {U.S.)  272. 

308.  Couiitersisiiinjf  by  county 
clerk  «»r  treasurer.  —  The  signature  of 
the  county  clerk  is  essential  to  the  validity 
of  township  bonds  issued  in  aid  of  railroads, 
under  Kan.  Laws  of  1870,  ch.  90,  providing 
that  when  such  bonds  have  been  author- 
ized the  county  commissioners  shall  order 
the  county  clerk  to  issue  the  same,  "  to  be 
signed  by  the  chairman  of  the  board,  and 
attested  by  the  clerk,  under  the  seal  of  the 
county."  Bissill  V.  Spring  Valley  Tp.,  15 
Am.  iS»  Eng.  R.  Cas.  585,  no  U.  S.  162,  3 
Sup.  Ct.  Rep.  555. 

I3ut  the  clerk  is  not  in  default  for  not 
countersigning  the  bonds  until  the  board  of 
supervisors  directs  him  to  countersign  the 
samn  or  aflfords  him  an  opportunity  to  do 
so  in  its  jiresencc,  and  he  refuses.  People 
ex  rcl.  v.  San  Fraiteisco  Snp'rs,  27  Cal.  655. 

Where  bonds  of  a  ci^unty  are  legally  au- 


I 
i 

t 


«■ 


era 


MUNICIPAL   AND   LOCAL   AID,  300-312. 


tliorizcd,  and  the  law  provides  that  the 
bonds  sliall  be  countersigned  l)y  the  treas- 
urer of  the  county,  the  omission  of  the 
treasurer  to  countersign  the  bonds  is  a 
mere  defect  in  the  execution  of  them  which 
u  court  of  equity  will  supply,  and  an  injunc- 
tion restraining  the  collection  of  taxes  for 
the  payment  of  such  bonds  should  not  be 
allowed..    Mclvin  v.  Liicnby,  72  ///.  63. 

300.  Naiiiiii{;  the  parties.— Where  a 
statute  authorizes  a  county  to  subscribe  to 
railroad  stock  and  to  issue  its  bonds  in  pay- 
ment, to  be  made  payable  "  to  the  president 
and  directors  of  the  company,  and  their 
successors  and  assigns,"  bonds  issued  pay- 
able to  the  company  or  bearer  are  not  in- 
valid. Such  provision  as  to  whom  payable 
is  o;ily  directory.  Calhoun  County  Sup'rs 
V.  Galbraith,  99  U.  S.  214. 

The  issuing  of  bonds  in  the  name  of  "the 
town  of  Perrysburg,"  instead  of  in  the  name 
of  "  the  incorporated  village  of  Perrysburg," 
its  proper  legal  designation,  is  merely  a  mis- 
nomer, which  does  not  aflect  the  validity  or 
obligation  of  such  bonds.  State  ex  rel.  v. 
Perrysburg,  14  O/iio  St.  472, 

Where  a  statute  autliorizes  the  mayor 
and  council  of  a  city  to  "  execute  bonds 
running  to  and  for  the  benefit  of  said  com- 
panv,  in  such  form  and  denominations  as 
they  may  direct,"  bonds  executed  and  de- 
livered to  and  accepted  by  the  company  are 
not  void  because  made  payable  to  an  individ- 
ual by  name,  "  or  bearer,"  instead  of  to  the 
company  or  bearer.  Kogan  v.  Watertown, 
30  Wis.  259,  8  Am.  Ky.  Rep.  20. 

3 10.  Aiiioiiiit  and  flciioiiiinations. 
— The  court  of  county  commissioners  may 
cause  bonds  to  be  executed  in  such  de- 
nominations as  may  be  agreed  upon  by  it 
and  the  railroad  company,  provided  the 
total  amount  for  which  they  are  issued 
does  not  exceed  that  set  forth  in  the  proposal 
accepted  by  the  vote  of  the  qualified  elec- 
tors of  the  county.  Green  County  v.  Daniel, 
3  Am.  6-  Eng.  R.  Cas.  105,  102  U.  S.  187. 

311.  Stating  plaee  of  payment. — 
Where  the  statute  designates  no  place  of 
payment  of  municipal  bonds  issued  for  rail- 
road stock,  it  is  competent  for  the  officers 
to  make  them  payable  in  New  York.  Cal- 
houn County  Sup'rs  v.  Galbraith,  99  U.  S. 
214.  Austin  V.  Gulf,  C.  6-  S.  F.  R.  Co.,  45 
Tex.  234,  13  Am.  Ry,  Rep.  172. 

Cdunties  and  cities  in  Illinois  have  not 
the  right  to  make  bonds  issued  in  aid  of 
railroads  payable  in  the  city  of  New  York. 


They  should  be  made  payable  at  the  munic- 
ipal treasury.  People  ex  rcl.  v.  Tazai.<til 
County.zzlll.  147.  — Distixc;uishin(j  Pretty- 
man  V.  Tazewell  County  Sup'rs,  19  111.  406. 
— Pretty  man  v.  Tazewell  County  Sup'rs,  19 
///.  406.— Distinguished  in  People  ex  rcl. 
V.  Tazewell  County,  22  111.  147. — Cairo  v. 
Zane,  149  U.  S.  122,  13  Sup.  Ct.  Rep.  803.— 
Following  People  v.  Tazewell  County,  22 
111.  147  ;  Johnson  v.  Stark  Couiiiy,  24  111. 
75;  Sherlock  v.  Winnetka,  68  111.  530. 

In  theabsenceof  any  statutory  regulation, 
municipal  bonds  issued  for  railroad  stock 
are  not  void  for  being  payable  at  another 
place  than  the  municipal  treasury  ;  and  be- 
ing payable  at  another  place  is  not  sufficient 
to  put  a  purchaser  on  inquiry  as  to  their 
validity,  or  of  a  prior  judgment  declaring 
them  illegal.  Enfield  v.  Jordan,  119  U.  S 
680,  7  Sup.  Ct.  Rep.  358. 

A  bond  issued  by  a  county  in  Virginia 
which  mentions  on  its  face  no  place  of  pay- 
ment either  as  to  principal  or  interest  is 
payable  in  the  county  by  which  it  is  issued; 
and,  if  made  in  Virginia,  delivered  to  a 
company  incorporated  by  Virginia  as  ob- 
ligee, and  payable  in  Virginia,  it  is  not  af- 
fected by  a  custom  of  New  York,  if  there  be 
such  custom,  which  treats  such  a  bond,  hav- 
ing such  a  power  of  attorney  for  its  transfer 
or  a  "  registered  bond  "attached,  as  negotia- 
ble. Custom  cannot  make  that  which  is 
essentially  non-negotiable  negotiable  be- 
yond the  locality  in  which  the  custom  pre- 
vails. Cronin  v.  Patrick  County,  4  Hughes 
{U.S.)  524. 

312.  Rate  of  interest,  and  \io\\ 
payable.— Where  a  statute  authorizes.  :: 
court  to  issue  county  bonds  in  payment  o,' 
a  subscription  to  railroad  stock,  and  no  rate 
of  interest  is  fixed,  any  rate  may  be  fixed 
that  is  not  illegal.  Beattiev,  Andrew  Coun- 
ty, 56  Mo.  42. 

Where  a  statute  authorizes  a  city  to  issue 
bonds  bearing  six  per  cent,  interest,  bonds 
issued  bearing  ten  per  cent,  interest  are 
valid  to  the  extent  of  the  principal  and  six 
per  cent,  interest.  Lewis  v.  Clarendon,  5 
Dill.  (  U.  S.)  329. 

Where  a  statute  authorized  bonds  in  aid 
of  a  railroad  "  drawing  interest  at  the  rate 
of  ten  percent,  per  annum,"  a  vote  to  issue 
bonds  at  a  rate  "  not  to  exceed  ten  per  cent, 
interest " — held,  to  authorize  the  issue  of 
bonds  bearing  the  statute  rate  of  ten  per 
cent.  People  ex  rel.  v.  Ford  County  Sut)'r.i. 
63  ///.  142. 


■ 


MUNICIPAL  AND   LOCAL  AID,  aia,  314. 


678 


The  interest  of  authorized  bonds  may  be 
made  payable  in  gold.  Pollard  v.  Pleasant 
ililL  I  Dill.  (U.  S.)  195. 

:M;I.  Certiflcjitu  of  regularity.— A 

iiolder  of  municipal  bonds  issued  in  Mis- 
souri in  aid  of  a  railroad  cannot  maintain 
an  action  thereon  unless  they  are  indorsed 
by  tiie  state  auditor,  and  bear  his  certifi- 
cate tiiat  tlie  conditions  of  the  law  have 
been  complied  with,  as  required  by  the  act 
of  Marcii  30,  1872.  Anthony  v.  Jasper 
County,  101   U.  S.  693. 

Where  bonds  of  a  county  issue  to  the 
stock  of  a  railroad  for  a  sum  greater  tlian 
authorized  by  law,  the  county  is  not  es- 
topped from  denying  the  validity  of  the  over- 
issue by  a  certificate  on  the  back  of  the 
bonds  by  the  county  jiidj;e  to  the  effect  that 
they  were  duly  authorized.  Daviess  County 
V.  Dickinson,  \\^  U.  S.  657,  6  Sup.  Ct.  Rep. 
S97. 

The  certificate  of  township  trustees  that 
a  railroad  has  been  constructed  as  contem- 
plated in  a  notice  of  election  to  vote  a  tax 
in  aid  thereof  is  not  invalidated  by  the  fact 
that  it  was  signed  in  a  place  outside  the 
township.     Meader  v.  Lozury,  45  Iowa  684. 

Bonds  issued  by  a  county  in  Nebraska  as 
a  donation  to  a  railroad  company  are  invalid 
unless  they  have  indorsed  thereon  a  certifi- 
cate signed  by  the  secretary  and  auditor  of 
state  showing  that  they  were  issued  pursu- 
ant to  law.  State  ex  rel.  v.  Roggen,  22  Neb. 
118,  34  A'.   W.  Rep.  108. 

The  Tenn.  Act  of  1871,  providing  that  the 
credit  of  a  county  shall  not  be  given  or 
loaned  to  or  in  aid  of  any  company,  except 
upon  the  consent  of  a  majority  of  the  jus- 
tices, and  upon  an  election  held  by  the 
voters  of  the  county  at  which  three  fourths 
of  the  voters  shall  consent,  is  sufficiently 
complied  with  where  bonds  are  issued  in  aid 
of  a  railroad  with  an  indorsement  thereon 
under  the  hand  and  seal  of  the  chairman  of 
the  county  court  stating  that  the  credit  of 
the  county,  under  and  by  virtue  of  said  act, 
is  pledged  to  the  payment  of  the  boi)ds  and 
coupons  attached,  in  accordance  with  an 
order  of  said  court  passed  on  a  day  named, 
and  approved  by  the  people  at  an  election 
held  on  another  day  named.  Shelby  County 
\.  Jarnagin  (Tenn.),  16  S.   W.  Rep.  1040, 

{J  14.  Itcgistratioii.  —  Where  the  \&\<! 
requires  municipal  bonds  issued  for  railroad 
stock  to  be  registered  in  the  office  of  the 
auditor  of  state,  and  so  certified,  the  bonds 
are  valid  in  the  hands  of  bona  fide  holders, 
6  D.  R.  D.—  43 


though  there  be  no  actual  registration,  if 
the  auditor's  certificate  duly  appears  on  the 
bonds.  Rock  Creek'  Tp.  v.  Strong,  96  I/.  S.' 
271. 

The  provision  of  the  111.  Act  of  April  16, 
1869,  providing  for  registering  municipal 
railroad  bonds  in  the  office  of  the  state  au- 
ditor, does  not  require  that  the  auditor  shall 
inquire  into  their  validity,  or  certify  that 
they  were  regularly  or  legally  issued  ;  and 
the  mere  act  of  registration  will  not  estop 
the  municipality  from  denying  their  valid- 
ity. German  Sav.  Bank  v.  Franklin  County, 
1 28  U.  S.  526,  9  Sup.  Ct.  Rep.  1 59. 

It  was  objected  to  the  certificate  of  the 
president  of  a  town,  made  to  entitle  the 
bonds  of  the  town  to  be  registered,  that  it 
was  not  sufficient,  for  the  reason  that  it  was 
not  positive,  but  to  the  best  of  the  officer's 
knowledge  and  belief.  Held,  that,  as  the 
certificate  was  required  to  be  made  under 
oath,  it  was  sufficient.    Decker  v.  Hughes, 

e^-ni.  33. 

The  Kan.  Act  of  March  2,  1872,  provid- 
ing for  the  registration  of  municipal  and 
county  bonds,  is  not  a  curative  act  in  the 
sense  that  it  takes  away  any  valid  defense 
which  the  city  or  county  would  otherwise 
have  to  bonds  theretofore  issued.  January 
V.Johnson  County,  3  Dill.  (U.  S.)  392. 

County  commissioners  may  provide  for 
paying  the  interest  on  county  bonds  issued 
to  railroad  companies,  although  such  bonds 
have  not  been  registered  with  the  auditor 
of  state,  as  provided  in  the  Minn.  Act  of 
March  6,  1871.  St.  Louis  County  Coin'rs  v. 
Nettleton,  22  Minn.  356. 

The  Mo.  Act  of  March  30,  1872,  entitled 
"  An  act  to  provide  for  the  registration  of 
bonds  issued  by  counties,  cities,  and  incor- 
porated towns,  and  to  limit  the  issue  there- 
of," applies  to  bonds  issued  to  railroads 
under  the  "Township  Aid  Law"  of  i868. 
Anthonys.  Jasper  County,  loi  U.  S.  693. — 
Followed  in  HofJ  v.  Jasper  County,  no 
U.  S.  53. 

A  statute  authorized  a  town  to  subscribe 
to  railroad  stock  and  to  issue  its  bonds  upon 
the  assent  of  a  majority  of  the  taxpayers, 
but  provided  for  an  "  instrument  of  assent " 
signed  and  acknowledsjed  by  each  person 
assenting,  and  setting  forth  the  conditions 
on  which  the  subscriptions  should  be  made, 
and  that  the  commissioners  who  were  to 
make  the  subscription  should  add  thereto  a 
certificate  stating  that  such  assent  had  been 
signed  and  acknowledged  by  a  majority, 


>■     w 


1  : 1  *•: 


674 


MUNICIPAL   AND   LOCAL   AID,  ',il5,iim. 


i 


and  should  cause  sucii  instrument  and  cer- 
tificate to  be  filed  and  recorded  in  the 
town  clerk's  office,  and  a  copy  lodged  and 
recorded  in  tlie  county  clerk's  office,  and 
tiiat  the  commissioners  should  not  proceed 
to  miike  the  subscription  until  such  records 
siiould  be  made,  //^/if,  that  tlie  commis- 
sioners had  no  autiiority  to  make  a  sub- 
scription in  any  form  without  causing  such 
assent  and  certificate  to  be  both  filed  and 
recorded ;  that  filing  alone  was  not  suffi- 
cient ;  therefore  a  mandamus  would  not  lie 
to  compel  the  town  officers  to  execute  and 
deliver  the  notes  or  bonds  of  the  town. 
Essex  County  K.  Co.  v.  Lunenbiirgh,  49  Vt, 
143.— Followed  in  Lamoille  Valley  R. 
Co.  V.  Fairfield,  51  Vt.  257. 

3.    Validity. 

315.  Ill  general.*— Where  a  statute 
only  requires  a  grand  jury  to  fix  the  amount 
of  a  municipal  subscription,  and  to  approve 
it,  it  is  not  necessary,  in  a  suit  to  recover 
interest,  that  the  plaintitl  show  that  the 
grand  jury  fixed  the  manner  and  terms  of 
paying  for  the  stock ;  nor  is  it  a  defense  for 
the  county  to  show  that  the  grand  jury 
failed  to  do  so.  Woods  v,  Lawrence  Coun- 
ty. I  Black  (U.  S.)  386. 

Under  Iowa  statutes  authorizing  coun- 
ties to  aid  in  public  improvements,  bonds 
signed  by  the  proper  officers,  and  under 
seal,  made  payable  to  bearer,  and  reciting 
that  tiiey  are  issued  pursuant  to  a  vote  of 
the  people,  are  prima  facie  valid,  though 
they  fail  to  state  the  purpose  for  which  they 
were  issued.  Carpenter  v.  Buena  Vista 
County,  5  Dill.  {U.  S.)  556. 

It  IS  the  settled  policy  of  Kansas  to  toler- 
ate the  issue  by  municipalities  of  bonds  in 
aid  of  railroads,  and  bonds  so  issued,  if 
issued  in  pursuance  of  express  authority 
and  in  accordance  with  the  prescribed 
forms,  are  valid.  Leavenworth,  L.  &*  G.  Ji. 
Co.  v.  Douglas  County  Com'rs,  18  Kan.  169, 
15  Am.  By.  Rep.  256. 

When  a  county  issues  its  bonds  to  a  rail- 
road, if  there  is  reasonable  certainty  in 
the  manner  of  voting  and  ordering  the  sub- 
scription, and  the  subscription  is  made  to 
the  road  authorized,  and  the  other  provi- 
sions of  the  statute  are  complied  with,  such 
bonds  are  valid.    Ranney  v.  Baeder,  50  Mo. 

*  Validity  of  municipal  bonds  in  aid  of  rail- 
roads, see  notes,  5  Am.  &  Eng.  R.  Cas.  241  ; 
iS  Am.  Rep.  259. 


600,  3  Am.  Ry.  Rep.  141.— Followed  in 
Cass  County  v.  Johnston,  95  U.  S.  360.  Re- 
viewed IN  Carpenter  v.  Lathrop,  51  Mo, 

483. 

A  condition  unauthorized  omitted  to  be 
printed  upon  the  bonds  does  not  impair 
their  validity,  whether  the  holder  had  notice 
or  not.  Howard  v.  Crawford  County,  i 
Pittsb.  (Pa.)  531, 

3 10.  Validity  (leteriiiiiiecl  by  law 
ill  force  at  time  of  iM.sue  or  sale.— 
Where  county  bonds  issued  in  aid  of  a  rail- 
road have  been  sold  upon  the  faith  of  deci- 
sions of  the  supreme  court  of  the  state  de- 
claring their  validity,  the  fact  that  the  court 
afterwards  overrules  its  decision  does  not 
invalidate  those  previously  purchased  in 
good  faith  and  before  maturity.  United 
States  ex  rel.  v.  Lee  County  Sup'rs,  2  Biss. 
( U.  S.)  77.  Marshall  v.  E^in,  3  McCrary 
(U.  S.)  35.8  Fed.  Rep.  782.  Green  County 
v.  Conness,  109  U.  S.  104,  3  Sup.  Ct.  Rep.  69. 
—Approving  State  ex  rel.  v.  Garroutte,  67 
Mo.  445  ;  State  ex  rel  v.  Dallas  County 
Court,  72  Mo.  329.  Following  Callaway 
County  V.  Foster,  93  U.  J:  567 ;  Scotland 
County  V.  Thomas,  94  U.  S.  682 ;  Henry 
County  V.  Nicolay,  95  U.  S.  619;  Schuyler 
County  V.  Thomas,  98  U.  S.  169;  Cass 
County  V.  Gillett,  100  U.  S.  585  ;  Louisiana 
V.  Taylor,  105  U.  S.  454;  Ralls  County  v. 
Douglass,  105  U.-S.  728.  Quoting  Doug- 
lass V.  Pike  County,  loi  U.  S.  687. — 
Columbia  County  Com'rs  v.  King,  13  Fla. 
451.  Harmon  v.  Auditor  of  Public  Ac- 
counts, 123  ///.  122,  13  A^.  E.  Rep.  161. — 
Quoted  in  Willoughby  v.  Chicago  J.  R.  & 
U.  S.  Co.,  50  N.  J.  Eq.  6^6.— State  ex  rel. 
V.  Chester  &*  L.  N.  G.  R.  Co.,  5  Am.  6-  Eng. 
R.  Cas.  220,  13  So.  Car.  290. 

The  repeal  of  Cal.  Act  of  April  4,  1870, 
which  authorized  the  issuing  of  bonds  in 
aid  of  railroads  in  certain  cases,  did  not  af- 
fect the  validity  of  bonds  issued  under  a 
contract  which  was  made  and  partially  per- 
formed prior  to  the  passage  of  the  repeal- 
ing act.  Nevada  Bank  v.  Steinmitz,  64  Cal. 
301. 

Town  bonds  were  executed  some  time  be- 
fore they  were  negotiated,  and  between  the 
time  of  their  execution  and  the  time  of  their 
negotiation  the  statute  under  which  they 
were  issued  was  changed  as  to  the  time 
that  bonds  should  run.  Held,  that  the 
bonds  were  not  legally  issued  until  they 
were  negotiated,  and  it  was  sufficient  if  they 
v.onformed  to  the  law  existing  at  the  time 


WW"  I  "Hill 


MUNICIPAL   AND    LOCAL   AID,  317, 318. 


076 


of  their  negotiation  as  to  ihe  lime  that  they 
should  run.  Brmviiell  v.  Greenwich,  8  A'^ 
Y.  S.  K.  737  ;  affirmed  in  \  14  N.  Y.  518,  24 
N.  Y.  S.  a:  6.  22  N.  E.  Rep.  24.  — Distin- 
guishing Potter  2/.  Greenwich,  26  Hun  (N. 
Y.)  326. 

The  Wis.  constitution  provides  that  "  no 
general  law  shall  be  in  force  until  pub- 
lished." A  statute  provides  that  all  laws 
shall  be  divided  into  two  classes,  and  pub- 
lished in  separate  volumes,  the  first  to  in- 
clude "  all  laws  of  a  general  nature  " ;  the 
second,  all  not  included  in  the  first.  The 
legislature  passed  a  law  authorizing  a  county 
to  subscribe  for  stock  in  a  railroad  and  to 
issue  bonds.  The  law  was  classed  as  a  local 
law,  but  not  published  until  after  a  vote  had 
been  taken  and  the  bonds  issued.  After- 
wards the  supreme  court  of  the  state  de- 
cided that  such  statutes  are  general  laws. 
Held,  that  the  rights  of  the  holders  of  such 
bonds  were  to  be  determined  by  the  law  as 
construed  at  the  time  they  were  issued,  and 
that  the  action  of  the  executive  officers  of 
the  state  in  classing  the  act  as  a  local  law 
must  control  their  validity.  Havemeyer  v. 
Iowa  County  Com'rs,  3  Wall.  (I/.  S.)  294. — 
Following  Gelpcke  v.  Dubuque,  i  Wall. 

'75- 

317.  Change  in  coustitutiou  after 
valid  subscription  will  not  invali- 
date the  bonds.  —  Where  a  town  has 
voted  to  issue  bonds  in  aid  of  a  railway,  as 
was  allowable  under  the  then  existing  con- 
stitution of  the  state,  and  the  bonds  are 
not  issued  until  after  the  adoption  of  a  new 
constitution,  the  new  constitution  can  in  no 
wise  affect  the  bonds.  Bale/teller  v.  Afas- 
coutah,  2  Fed.  Cas.  504,  7  Chicago  Leg.  News 
230.  People  ex  rel.  v.  Hatnill,  134  ///.  666, 
17  N.  E.  Rep.  799,  29  N.  E.  Rep.  280.  Pur- 
cell  v.  Bear  Creek,  138  ///.  524,  28  N.  E.  Rep. 
1085.  Cherry  Creek  v.  Becker,  123  N.  Y. 
161 ,  33  N.  Y.  S.  R.  41 1,  25  A^.  E.  Rep.  369  ; 
affirming  18  N.  Y.  S.  R.  485,  2  N.  Y.  Supp. 
514.  Nelson  v.  Haywood  County,  38  Am.  &- 
Eng.  R.  Cas.  620,  87  Tenn.  781,  11  S.  IV. 
Rep.  815.— Approving  Wadsworth  v.  Eau 
Claire  County  Sup'rs,  102  U.  S.  534 ;  Buffalo 
&  I.  R.  Co.  V.  Falconer,  103  U.  S.  826. 

But  in  such  a  case  the  burden  rests  upon 
those  affirming  the  validity  of  the  bonds  to 
show  that  they  were  lawfully  issued  pur- 
suant to  a  vote  of  the  people.  Eddy  v.  Peo- 
ple ex   rel.,   127   ///.   428,  20  A^.  E.   Rep. 

318.  Federal  courts  follow  law  as 


declared   by   state   courts   at    time 
bonds  were  put  on  the  market.— The 

U.  S.  supreme  court  decides  the  validity  of 
municipa.  bonds  according  to  'he  law  as 
construed  when  the  bonds  weio  ssued, 
without  reference  to  subsequent  state  decis- 
ions. Kenosha  v.  Lamson,  9  Wall.  (U.  S.) 
477.  —  Disapproving  Foster  v.  Kenosha, 
12  Wis.  616. — Gelpcke  v.  Dubuque,  i  Wall. 
{U.  S.)  175.  —  Fi)i,l.owiNG  Knox  County 
Com'rs  V.  Aspinwall,  21  How.  (U.  S.)  539; 
Royal  British  Bank  v.  Turquand,  6  El.  &  Bl. 
327  ;  Farmers'  L.  &  T.  Co.  v.  Curtis,  7  N.  Y. 
466;  Stoney  t.  American  Life  Ins.  Co.,  11 
Paige  (N.  Y.)  635;  Morris  C.  &  B.  Co.  v. 
Fisher,  9  N.  J.  Eq.  667  ;  Willmarth  v.  Craw- 
ford, !o  Wend.  (N.  Y.)  343;  Allegheny  City 
V.  McClurkan,  14  Pa.  St.  83. — Approvkd  in 
Lee  County  v.  Rogers,  7  Wall.  181.  Dis- 
approved IN  Marshall  County  Sup'rs  v. 
Cook,  38  111.  44.  Followed  in  Meyer  v. 
Muscatine,  i  Wall.  384  ;  Havemeyer  v.  Iowa 
County,  3  Wall.  294;  Rogers  w.  Keokuk,  18 
Law.  Ed.  (U.  S.)  74;  Mineral  Point  v.  Lee, 
18  Law.  Ed.  456 ;  Kenicott  v.  Wayne  County 
Sup'rs,  16  Wall.  452,  Not  followed  in 
Leavenworth  County  Com'rs  v.  Miller,  7 
Kan.  479.  Quoted  in  Columbia  County 
Com'rs  V.  King,  13  Fla.  451  ;  Lewis  v.  Bour- 
bon County  Com'rs,  12  Kan.  186.  Re- 
ferred 10  in  Davidson  v.  Ramsey  County 
Com'rs,  18  Minn.  482  (Gil.  432). —  Thompson 
V.  Lee  County,  3  Wall.  {U.  S.)  327.  Lee 
Coimty  V.  Rogers,  7  Wall.  {U.  S.)  181.— Ap- 
proving Gelpcke  v.  Dubuque,  I  Wall.  176. — 
Followed  in  Leavenworth  County  Com'rs 
V.  Miller,  7  Kan.  479. — Block  v.  Bourbon 
County  Com'rs,  99  U.  S.  686.— DISAPPROV- 
ING Lewis  V.  Bourbon  County  Com'rs,  12 
Kan.  186.  —  Douglass  v.  Pike  County,  loi 
U.  S.  677. — Followed  in  Foote  v.  Pike 
County,  loi  U.  S.  688,  n. ;  Darlington  v. 
Jackson  County,  loi  U.  S.  688,  «. ;  Green 
County  V.  Conness,  109  U.  S.  104. —  Taylor 
V.  Ypsilanti,  1 2  Am.  &*  Eng.  R.  Cas.  549, 
105  U.  S.  60.— Followed  in  New  Buffalo 
Tp.  V.  Cambria  Iron  Co.,  105  U.  S.  73. — 
A^ew  Buffalo  Tp.  v.  Cambria  Iron  Co.,  105 
U.  S.  73.— Following  Taylor  v.  Ypsilanti, 
105  U.  S.  60. — Green  County  v.  Conness,  15 
Am.  &•  Eng.  R.  Cas.  613,  109  U.  S.  104,  3 
Sup.  Ct.  A'^/.  69.— Following  Ralls  County 
V.  Douglass,  105  U.  S.  728;  Douglass  v. 
Pike  County,  loi  U.  S.  687. — Anderson  v. 
Santa  Anna  Tp.,  116  U.  S.  356.  6  Sup.  Ct. 
Rep.  413.  Eoote  v.  Johnson  County,  5  Dill. 
{U.  S.)  281. 


"h 


C7G 


MUNICIPAL   AND   LOCAL  AID,  . '11 0,  320. 


Tlie  decision  of  the  supreme  court  of 
Mic:iil(>an  against  the  val.dity  of  such  bonds 
is  (>|)|)usud  to  an  overwh^l.ning  weight  of 
decisions  in  other  states  with  constitutions 
similar  to  that  of  Michigan.  Hcfurc  tiic 
constitution  of  Michigan  was  adopted  in 
1850  tlic  validity  of  bonds  of  this  character 
had  been  settled  in  states  w'tli  similar  con- 
stitutions. In  adopting  its  own  constitution 
Miciiigan  must  be  presumed  to  have 
adopted  the  practical  and  judicial  construc- 
ti<jn  of  other  like  constitutions.  Talcott  v. 
Pine  Grove  Tp.,  i  Fli/if>.  (U.  S.)  120. 

.\  New  York  statute  provided  that  after 
certain  preliminary  steps  the  county  judge 
should  a[ipoint  commissioners  to  issue 
bonds,  whose  duty  it  was  to  proceed  "  with 
all  reasonable  dispatch."  After  such  com- 
missioners were  appointed  the  action  of  the 
county  judge  was  taken  on  certiorari  to  the 
supreme  court,  the  commissioners  not  being 
made  parties,  and  while  the  matter  was 
pending  in  that  court  the  commissioners 
made  the  subscription  and  issued  the  bonds. 
The  action  of  the  county  judge  was  sustained 
by  the  supreme  court,  but  after  the  bonds 
were  issued  was  reversed  by  the  court  of 
appeals  on  the  ground  that  the  petition  did 
not  contain  the  required  number  of  legal 
signatures.  Held,  that  the  judgment  of  the 
county  judge  and  of  the  supreme  court  was 
binding  until  reversed,  and  that  bona  fide 
holders  were  entitled  to  recover  on  the 
bonds.  Orleans  v.  Piatt,  99  U.  S.  676. — 
.Approving  Warren  County  v.  Marcy,  97 
U.  S.  96. — Approved  in  Lyons  v.  Munson, 
99  U.  S.  684. 

319.  Must  be  isNiied  to  subserve  a 
public  purpose— What  is  a  public 
purpose. — An  attempted  grant  of  public 
aid  to  an  individual  or  a  private  corporation 
cannot  be  sustained  unless,  upon  the  face 
of  the  law  or  record,  it  appears  that  the 
grant  is  to  subserve  some  public  purpose. 
The  silence  of  the  law  as  to  the  purpose  of 
the  grant  makes  against  its  validity.  Cen- 
tral Ihanch  U.  P.  R.  Co.  v.  Smith,  23  Kan. 

745- 

Where  a  bond  purports  upon  its  face  to 
be  issued  under  authority  of  a  special  act, 
it  will,  as  a  rule,  be  invalid  if  that  act  is 
unconstitutional;  and  where  it  is  sought  to 
upiiold  the  bond  by  virtue  of  authority 
given  in  some  other  law,  it  must  appear,  to 
Mi-siain  the  bond  even  in  the  hands  of  a  bona 
ji  .'■■  iiolder,  that  the  terms  of  said  second 
\.i  X  iKive  in  fact  been  complied  with,  and 


that  the  bond  is  in  fact  legal  and  valid,  as 
issued  in  aid  of  some  public  and  authori/.cd 
purpose.  Central  liranch  U,  P.  A'.  Co.  v, 
Suiit/i,  23  A'an.  745. 

Bonds  issued  under  legislative  authority 
in  Missouri  to  aid  a  railroad  company  in 
erecting  "  machine  shops "  are,  //  stetns, 
bonds  issued  for  a  public  purpose,  Jarrott 
V.  Moberly,  5  Dill.  (U  S.)  253. 

County  bonds  issued  for  the  purpose  of 
erecting  a  public  bridge  over  the  Platte 
river,  conforniable  in  all  respects  to  the  laws 
of  the  state  authorizing  the  issuance  of 
bonds  in  aid  of  works  of  internal  improve- 
ment, are  valid.  Union  Pac.N.  Co,  v.  Colfax 
County  Coin'rs,  4  A'eb.  450. 

Such  a  bridge  is  a  work  of  internal  im- 
provement, and,  from  the  course  of  legisla- 
tion in  Nebraska,  it  is  clear  that  aid  may  be 
granted  in  its  erection  by  the  issuance  of 
county  bonds,  by  grant  from  the  state,  do- 
nations, or  by  two  counties  bordering  on  the 
river  uniting  in  the  enterprise.  It  was  not 
the  legislative  intention  to  restrict  the  aid 
authorized  to  works  of  internal  improve- 
ment in  which  the  county  has  no  interest. 
The  question  in  determining  what  consti- 
tutes a  work  of  internal  improvement  must 
be  determined  by  the  benefits  to  be  derived 
by  the  public,  and  not  by  its  extent  or  cost. 
Union  Pac.  K.  Co.  v.  Col/ax  County  Com'rs, 
4  Neb.  450.— FOLLOWKD  IN  State  ex  rel.  v. 
Keith  County,  16  Neb.  508;  State  ex  rel.  v. 
Babcock,  19  Neb.  230;  State  ex  rel.  v.  Bab- 
cock,  23  Neb.  179.  Quoted  in  South  Platte 
Land  Co.  v.  Buffalo  County,  7  Neb.  253. 

320.  Mere  irregularities  are  not 
fatal  to  the  bonds.— The  substitution  of 
a  municipal  subscription  to  railroad  stock 
by  consent  in  the  stead  of  a  subscription  of 
private  citizens  does  not  invalidate  the 
municipal  subscription  or  its  bonds  issued 
thereunder,  unless  there  has  been  some 
trick  whereby  the  citizens  were  deceived,  or 
the  matter  has  been  so  Arranged  that  the 
citizens  voted  or  petitioned  for  the  subscrip- 
tion under  a  misconception  of  facts,  but 
not  if  the  facts  were  well  known  and  under- 
stood by  all  the  parties.  Davis  v.  Kendall~ 
ville,  5  Biss.  {U.  S.)  280. 

Bonds  are  not  invalid  because  issued  in 
full  of  the  subscription  while  the  stock  is 
payable  in  future  instalments,  nor  because 
the  interest  is  made  payable  semi-annually. 
Bridgeport  v.  Housatonic  R.  Co.,  1 5  Conn.  475. 

Where  county  bonds  upon  subscription 
to  a  railroad  have  been  issued  and  got  into 


MUNICIPAL  AND   LOCAL   AID,  :Jai,  »aa. 


677 


circulation,  all  reasonable  presumptions  will 
be  indulged  in  favor  of  their  regularity  un- 
til rebutted,  and  if  irregularities  are  shown 
tlicy  will  not  invalidate  the  bonds  unless 
ihcy  go  to  the  power  of  the  court  to  issue 
tliL'in.  Maxcy  v.  Williamson  County,  Ti  III, 
207.— Fu  I, LOW  ED  IN  Oregon  v.  Jennings,  119 
U.  S.  7^,— Clay  V.  Htiivkins  County  Justices, 
5  Lea  (J'enn.)  137.  Louisville  iit'  N.  A'.  Co. 
V.  State,  8  HeisK,  ( Tenn.)  663, 19  Am.  Ky.  Hep, 
107. 

Signing  bonds  in  blank  by  township  otB- 
cers,  and  leaving  them  with  others  to  hold 
until  the  conditions  of  the  vote  are  complied 
with,  and  afterwards  filling  up  the  blanks, 
are  mere  irregularities  which  do  not  affect 
the  bonds  in  the  hands  of  bona  fide  pur- 
chasers for  value,  without  notice.  Aianlic 
Sav.  Bank  v.  Douglas,  5  ///.  App,  579. 

The  act  authorizing  the  issue  of  bonds  by 
the  city  of  Palmyra  (Mo.  Acts  1857,  p.  431) 
provided  that  the  bonds  issued  in  payment  of 
the  subscription  to  a  railroad  should  be  "  pay- 
able twenty  years  after  date,"  etc.  On  the  face 
of  the  bonds  it  appeared  that  the  ordinance 
of  the  city  directing  a  subscription  to  the 
slock  was  passed  after  the  date  of  the 
bonds,  showing  that  the  bonds  had  been  an- 
tedated. Held,  to  be  no  substantial  objec- 
titjn  to  the  bonds.  Flagg  v.  Mayor,  etc.,  of 
Palmyra,  33  Mo,  440. 

.'121.  Jurisdictional  <lefccts  patent 
on  the  record.— Where  want  of  jurisdic- 
tion in  a  proceeding  by  a  town  to  issue  its 
bonds  in  aid  of  a  railroad  is  patent  upon  the 
f;ice  of  the  record,  bonds  issued  thereunder 
are  void  in  the  hands  of  the  company. 
Afigelv.  Hume,  17  Hun  (N,  ]'.)  374. 

Under  the  above  rule,  where  the  statute 
requires  the  petition  in  such  proceeding  to 
be  verified,  the  verification  must  extend  to 
every  material  fact  alleged  in  the  petition  to 
fjive  the  court  jurisdiction ;  and  if  it  fails 
to  state,  among  other  things,  that  the  com- 
pany to  be  aided  is  a  corporation  of  the 
state,  as  required  by  statute,  it  is  defective, 
and  confers  no  jurisdiction.  Afigel  v.  Hume, 
17  Hun  {N,  Y,)  374. 

!)22.  Departure  ft*om  statute  as  to 
time  1>oii<Im  are  to  run.— Where  the 
statute  authorizes  an  issue  of  municipal 
bonds  in  aid  of  a  railroad  to  run  not  more 
than  thirty  years,  the  bonds  are  not  invalid 
because  made  payable,  according  to  their 
date,  in  seventt  .1  days  over  the  thirty 
years,  but  where  there  is  no  excess  over 
the  thirty  years  from  the  time  the  bonds 


arc  actually  executed,  issued,  and  delivered. 
Marion  County  Coin'rs  v.  Clark,  94  U,  S. 
278.— Imji.ldwku  in  Rock  Creek  Tp.  v. 
Strong,  96  U.  S.  271,— Rock  Creek  Tp,  v. 
Sif^ng,  1)6  U,  S,  271.  — FoLLOWiNO  Marion 
Coui.  V  Coin'rs  v,  Clark,  94  U.  S.  278. — DlS- 
TINCVISHEU  IN  Woodruff  7>,  Okolona,  57 
Mis;.  806.  FoM.owKl)  in  Dows  v.  Elm- 
wood,  34  Fed.  Rep.  114. 

Where  a  statute  authorizes  bonds  payable 
at  any  time  "  not  exceeding  twenty  years 
from  dale,"  bonds  dated  April  27,  but  recit- 
ing that  they  ran  twenty  years  from  July  i 
following,  are  not  void,  the  interval  between 
the  two  dates  being  only  a  reasonable  lime 
for  putting  them  on  the  market.  JJo7as  v. 
Ehnwood,  34  Fed,  Kep.  114;  appeal  dismissed 
in  136  U.  S.  651,  10  Sup.  Ct,  Kep.  1074.— 
F"ollovving  Rock  Creek  Tp.  v.  Strong,  96 
U.  S.  271. 

Where  a  statute  authorizes  an  issue  of 
municipal  bonds  in  aid  of  a  railroad  not  to 
run  more  than  ten  years,  bonds  having  more 
than  ten  years  to  run  are  void  in  the  hands 
of  purchasers  for  value  before  maturity. 
Barnum  v.  Okolona,  148  17.  S,  393,  13  Sup. 
Ct.  Kep.  638.— Approving  Woodruff  v. 
Okolona,  57  Miss.  806. 

Where  the  statute  requires  bonds  to  be 
paid  in  ten  years,  a  vote  authorizing  them  to 
run  twenty  years  is  such  a  material  depart- 
ure from  the  statute  as  to  authorize  a  court 
to  enjoin  the  issue  of  the  bonds.  Union 
Pac,  K,  Co.  v.  Lincoln  County,  3  Dill,  {U.  S,) 
300.  Woodruff  V.  Okolona,  57  Miss,  806. — 
Approving  Knox  County  Com'rs  v.  Aspin- 
wall,  71  How.  (U.  S.)  539.  Criticising 
Calhoun  County  Sup'rs  v,  Galbraith,  99  U. 

5.  214.  Distinguishing  Marion  County 
Com'rs  V.  Clark,  94  U.  S.  278 ;  Rock  Creek 
Tp.  V,  Strong,  96  U.  S.  271.— Apptioved  in 
Barnum  v,  Okolona,  148  U.  S.  393. 

A  town  bond  in  aid  of  a  railroad  issued 
under  N.  Y.  Laws  of  1869,  ch.  907,  and  made 
payable  in  twenty  instead  of  thirty  years,  is 
void  on  its  face,  and  cannot  be  reformed 
by  the  court  even  at  the  instance  of  a  pur- 
chaser for  value.  Potter  v.  Greenwich,  92 
N.  Y.  662  ;  affirming  26  Hun  326.— Distin- 
guished in  Brownell  v.  Greenwich,  114 
N.  Y.  518,  22  N.  E.  Rep.  24,  i\  N.  Y.  S.  R. 

6,  4  L.  R.  A.  685. 

Bonds  issued  by  a  town  in  pursuance  of 
Laws  1869,  ch.  907,  being  simply  its  promise 
to  pay,  could  not  be  sold  by  it;  they  ac- 
quired no  vitality  as  securities  capable  of  a 
sale  until  they  had  obtained  a  valid  incep- 


I 


678 


MUNICIPAL  AND  LOCAL  AID,  323. 


m 


tion  in  the  hands  of  the  first  holder,  and 
tlic  considerution  described  as  paid  by  him 
was  simply  a  loan  of  the  sum  specified  to 
the  l<jwn.  J/oiijf  V.  Greenwich,  133  N.  V, 
152,  30  yV.  E.  Rip.  842,  44  N.  Y.  S.  A'.  519. 

In  voting  town  bonds  nider  Minn.  Sp. 
Laws  1875,  ch.  132,  in  aid  of  a  railroad,  it  is 
competent  for  the  town  to  stipulate,  as  a 
condition  precedent  to  issuing  the  Ix^nds, 
that  the  same  shall  be  made  payable  at  a 
place  (IcsiKnated,  and  on  or  before  the  expi- 
ration of  twenty  years,  at  the  option  of  the 
town.  Such  a  condition  is  not  repugnant 
to  a  clause  in  the  statute  providing  that  the 
bonds  "  shall  be  payable  in  not  less  tiian 
ten  or  more  than  twenty  years."  Hoyt  v, 
lirathn,  27  Minn.  490,  8  A^.  IV.  A'ep.  591.— 
Following  Coe  v.  Caledonia  &  M.  R.  Co., 
27  Minn.  197. 

Neither  of  the  Tenn.  Acts  of  Dec.  16, 
1871,  Feb.  26,  1869,  or  Feb.  8,  1870,  author- 
ized town  bonds  for  stock  in  railroads  pay- 
able in  ten  years.  Norton  v.  Dyersburg, 
127  U.  S.  160,  8  Sup.  Ct.  Rep.  iiii. 

A  statute  authorized  a  city  to  issue  its 
bonds  in  aid  of  a  railroad,  and  provided 
that  they  should  be  payable  in  twenty  years 
with  interest.  The  bonds  were  ncjt  issued 
for  more  than  a  month  after  the  passage  of 
the  statute,  but  they  bore  date  from  its 
passage,  and  were  made  payable  in  twenty 
years  therefrom.  Several  years  afterwards, 
in  a  suit  to  recover  interest,  the  objection 
was  interposed  that  the  bonds  did  not  run 
for  twenty  years,  nor  allow  one  full  year  for 
the  first  year's  interest  to  run.  Held,  that, 
as  this  was  not  a  suit  for  the  principal  of  the 
bonds  nor  for  the  first  year's  Interest,  the 
objection  could  not  be  made.  Luling  v. 
Racine,  i  Hiss.  (U.  S.)  314. 

Where  a  town  is  authorized  by  statute  to 
subscribe  to  the  capital  stock  of  a  railroad 
company,  and  is  required  to  pay  the  sub- 
scription in  "not  exceeding"  six  annual 
instalments,  and  is  further  authorized  to 
anticipate  the  collection  of  taxes  by  issuing 
"  short  bonds  "  bearing  six  per  cent,  interest 
—held,  that  the  proper  construction  of  the  act 
requires  the  bonds  to  mature  at  a  date  not 
longer  than  the  assessments  of  taxes  are 
due  and  payable,  and  that  bonds  payable 
in  ten  years  and  bearing  seven  per  cent,  in- 
terest are  unauthorized  by  the  act.  These 
requirements  are  not  directory  only,  but 
imperative,  and  must  be  complied  with  by 
the  town.  The  bonds  on  their  face  shi')w 
non-compliance  with  the  statute,  and  there 


can  be  no  bona  fide  holder  for  value  of  such 
bonds.    Green  v.  Dyersburg,  2  J'lipp.  (U.  S.) 

Ml- 

Commissioners  appointed  under  N.  Y.  Agt 
of  1869,  ch.  907,  issued  bondsc^f  the  town  pay- 
able in  twenty  years  instead  of  thirty,  as  le- 
quired  by  the  act.  Held,  that  the  bonds  were 
void  as  such,  but  that,  as  the  commissioners 
had  authority  to  borrow  the  money  which 
the  bonds  were  meant  to  secure,  they  by 
doing  so  bound  tiie  town  to  repay  it ;  and,  it 
appearing  that  the  parties,  both  borrower 
and  lender,  acted  in  good  faiili  and  with  tlie 
intention  to  comply  with  the  statute,  thai  a 
promise  on  the  part  of  the  town  to  repay 
the  loan  at  the  time  and  in  the  manner  pre- 
scribed by  the  statute  would  be  implied, 
and  an  action  thereon  against  the  town  was 
maintainable.  Hong  v.  Greenwich,  133  A'. 
r.  1 52, 30  A^.  E.  Rep.  842, 44  A'.  Y.  S.  R.  5 1 9. 

Certain  of  the  bonds  by  their  terms  made 
payable  in  twenty  years  were  issued  after  the 
passage  of  the  act  of  1871  (ch.  925,  Laws 
of  1871),  whicli  requires  (section  6)  bonds  to 
be  made  payable  in  not  to  exceed  thirty 
years,  and  that  not  more  than  ten  per  cent, 
of  the  total  authorized  debt  shall  be  made 
payable  in  any  one  year.  Held,  that  said 
bonds  were  valid  and  enforceable.  Hoiig\. 
Greenwich,  133  A'.  1'.  152,  30  A^.  E.  Rep. 
842,  44  A'^,  Y.  S.  R.  519.— Following 
Brownell  v.  Greenwich,  114  N.  Y.  518. 

Where  the  legislature  at  the  same  sesaion 
passes  two  acts  authorizing  municipal  sub- 
scriptions in  aid  of  a  railroad,  in  the  first  of 
which  the  amount  of  subscription  is  lim- 
ited and  the  bonds  are  to  mature  in  thii  ty 
yeirs,  while  in  the  second  there  is  no  limi- 
tation as  to  the  amount  and  the  bonds  are 
to  mature  in  twenty  years,  the  latter  act,  by 
implication,  repeals  the  prior  one,  as  to  the 
limitation  of  the  amount  of  subscription, 
and  as  to  the  length  of  tiine  the  bonds  mav 
run.  Hixrdins;  v.  Rockford,  R.  I.  &^  St.  L. 
R.  Co..  65  ///.  90. 

323.  CoiiditioiiM  sis  to  funds  from 
wliicli  imyablo.— It  is  essential  to  the 
validity  of  bonds  issued  by  a  municipal  cor- 
poration that  the  ordinance  creating  the 
debt  represented  by  them  shoidd  provide 
the  means  for  paying  the  principal  and  in- 
terest of  the  same.  Knox  v.  Baton  Rouge, 
36  La.  Ann.  427. 

Nor  is  this  requirement  met  by  the  fact 
that  the  bon'ls  were  issued  in  lien  of  a  cash 
subscription  for  stock  in  a  railroad,  which 
suby(  li  iiion  was  to  be  paid  by  means  of  a 


^ 


MUNICIPAL  AND  LOCAL  AID,  324. 


070 


Bpecinl  tax.  The  prnvisif)n  for  the  payment 
of  tl)u  stock  is  not  availahlc  for  that  of  the 
bonds.     Knox  v.  lUiton  Rouf^e,  36  La.  Ann. 

427. 

Nor  flofs  the  consent  of  the  qualified 
voters  of  tiie  town  or  jity  to  tiic  issuing  of 
tlie  bonds  dispense  with  this  i(.'(|iiireinent, 
where  tlie  ordinance  under  wliich  they 
issued,  defective  with  respect  totiie  recjuire- 
luent,  was  never  submitted  to  tiie  voters  for 
ratification.  Knox  v.  Ihxton  Kouge,  36  La. 
Ann.  427. 

Where  a  statute  provides  that  a  county 
iiavinn  or  controlling  an  internal  improve- 
ment fund  i;ranted  by  the  state  may  sub- 
scribe to  the  capital  stock  of  railroads, 
counties  have  no  general  autliority  to  sub- 
scribe, but  aie  limited  to  the  internal  im- 
provement fund,  and  bonds  issued  must  be 
on  the  credit  of  that  fund.  Bonds  issued 
upon  the  credit  of  the  county  generally, 
independent  of  such  fund,  are  unauthorized 
and  void  in  the  hands  of  subsequent 
holders  for  value.  Hancock  v.  L'/iicot 
County,  32  Ark.  575. 

Under  the  III.  Constitution  of  1848  the 
legislature  could  prcjperly  confer  upon  a  city 
the  power  to  incur  indebtedness  and  issue 
its  bonds  for  a  corporate  purpose  without 
any  vote  of  the  people,  but  it  could  not 
compel  a  city  or  incorporalefi  town  to  incur  a 
<lcbt  unless  the  legislative  department  of  the 
city  or  town  saw  proper  to  do  so.  So  where 
an  act  conferring  power  upon  a  city  council 
to  incur  an  indebtedness  and  issue  its  bonds 
therefor  is  silent  in  regard  to  the  time  when 
the  bonds  shall  be  made  payable,  and  in  re- 
gard to  the  terms  anrl  conditions  upon 
which  they  shall  be  payable,  such  matters 
will  be  left  to  the  city  and  the  person  to 
whom  the  bonds  are  to  be  issued  to  be 
settled,  and,  when  ac^recd  to,  the  city  may 
make  the  payment  of  such  bonds  depend 
upon  conditions  mutually  assented  to.  C/ii- 
cat^'o,  n.  &^  Q.  R.  Co.  V.  Aurora,  5  Am.  &• 
Kug.  R.  Cas.  191,  99  ///.  205. 

The  city  of  Aurora,  under  an  act  of  the 
le^islaiure  authorizing  it  to  issue  its  bonds 
as  a  donation  to  a  railroad  company  to 
secure  the  location  of  its  machine  shops  in 
the  city,  passed  an  ordinance  for  the  issue 
of  such  bonds,  to  be  conditioned  that  both 
the  principal  and  interest  should  be  paid 
out  of  moneys  to  be  raised  by  special  tax, 
to  be  levied  and  collected  of  property  in  the 
east  division  of  the  citv,  and  that  if  such  a 
tax  could  not  be  legally  assessed  the  obli- 


gees should  procure  the  passage  of  a  law 
authorizing  the  levy  of  such  a  special  tax, 
and  that  if  any  of  the  conditions  wire  not 
fulfilled  the  bonds  should  !>e  void.  Under 
this  ordinance  the  city  issued  its  bonds, 
conditioned  as  the  ordinance  required.  It 
was  contended  by  the  holder  of  the  bonds 
that,  the  condition  being  void,  for  the  reason 
that  the  city  could  not,  under  the  constitu- 
tion, levy  and  collect  a  S|>ecial  tax  e^re|>t 
over  its  entire  territory,  therefore  the  bonds 
were  payable  as  though  there  was  no  condi- 
tion. //M,  that  the  conditions  were  such 
as  the  city  had  the  right  to  impose,  anri,  it 
being  the  intention  of  the  pr.rties  that  they 
should  r.ot  be  obligatory  if  the  conditions 
could  not  be  performed,  the  bonds  were  not 
collectable.  C/ii'caxo,  />'.  6-  Q.  R.  Co.  v. 
^■lurora,  5  AnLQi^  Kng.  R.  Cas.  191,  <.)()  111. 
205.— DisTiNiiuisiiiNO  Butler  v.  VVigge,  i 
Saund.  65  ;  Mauievercr  v.  Hawxby,  3  Saund. 

78. 

A  city  issued  bonds  when  there  was  no 
tax  limit  imposed  upon  it,  and  subsequent- 
ly issued  other  bonds  when  it  could  only 
impose  a  two  per  cent,  tax,  and  a  city  or- 
dinance, providing  that  the  interest  on  the 
latter  bonds  should  be  paid  by  a  general  or 
special  tax,  was  approved  by  the  legislature. 
Subse(|uently  the  city  was  limited  to  a  one 
per  cent,  tax  in  paying  its  indebtedness,  and 
was  authorized  to  fund  its  debt,  and  could 
only  levy  a  tax  sutlicient  to  pay  interest 
thereon.  Juflgment  was  taken  against  the 
city  on  the  latter  bonds  before  its  former 
bonds  were  all  paid.  Held,  that  the  legisla- 
tion was  inoiierative  so  far  as  it  impaired 
existing  contracts;  that  the  hoKler  of  the  • 
judgment  was  entitled  to  have  a  tax  im- 
posed up  to  the  constitutional  limit,  and 
after  payment  of  the  current  expenses  of  the 
city  was  entitled  to  share  pro  rata  in  the 
riioney  raised  with  other  creditors  who  did 
not  have  a  specific  lien  on  the  ta.\cs.  Sibley 
v.  Mobile,  3  Woods  {U.  S.)  535. 

But  in  such  case  bonds  issued  when  there 
was  no  limitation  on  the  power  of  the  city 
to  impose  taxation  could  not  be  affected 
by  any  subsequent  law  limiting  such  power. 
Sibley  \.  Mobile.  3  Woods  (U.  S.)  535. 

;J24.  Klt'cet  «f  provisions  as  to  pay- 
ment of  interest. — It  is  no  objection  to 
the  validity  of  municii)al  bonds  issued  in 
aid  of  a  railroad  that  the  interest  is  made 
payable  at  a  commercial  city  in  another 
state  instead  of  at  the  treasury  of  the  city 
issuing  the  bonds.     Meyer  v.  Muscatine,   i 


680 


MUNICIPAL   AiND   LOCAL   AID,  323-329. 


ir.i//.  {U.  S.)  384. — Followed  in  Mineral 
Point  V.  Lee.  18  Law.  Ed.  (U.  S.)  456. 

Neither  is  it  any  (objection  to  the  validity 
of  such  bonds  that  the  interest  is  made  pay- 
ai)le  semi-annually  at  the  rate  of  ten  per 
cent,  per  annum,  when  the  vote  authorizing 
such  bonds  limited  the  rate  of  interest  to 
■'  not  higher  than  ten  per  cent."  Payment 
of  the  prescribed  rate  senn-annually  does  not 
create  usury.  Meyer  v.  Muscatine,  i  Wall. 
(  U.S)  384.     Marion  County  Coin'rs  v.  Clark, 

94  U.  S.  278.  Mobile  Sav.  Bank  v.  Oktibbeha 
County  Sup'rs,  24  Fed.  Rep.  1 10. 

A  statute  authorized  a  town  to  subscribe 
for  railroad  stock,  :md  required  it  to  pay 
the  subscription  in  not  exceeding  six  aimual 
paynients,  but  authorized  it  to  anticipate  the 
collection  of  taxes  by  issuing  "  short  bonds  " 
bearing  six  per  cent,  interest.  Held,  that  the 
requirements  of  the  statute  were  imperative, 
and  bonds  issued  at  seven  per  cent,  to  run 
for  ten  years  were  unauthorized  and  void  in 
the  hands  of  innocent  purchasers.  Greenv. 
Dyersburg,  2  Flipp.  (I/.  S.)  477. 

325.  Effect  of  irregular  or  fraudu- 
lent incorporation  of  railway  com.- 
paiiy. — Township  bonds  are  not  invalid  be- 
cause the  railroad  company  to  which  they 
were  voted  was  not  incorporated  until  the 
day  of  the  election.    Cass  County  \i.  Johnston, 

95  U.  S.  360. — Distinguishing  Rubey  v. 
Shain,  54  Mo.  207.— Reaffirmed  :n  Doug- 
lass V.  Pike  County,  loi  U.  S.  677. 

Under  the  N.  Y.  Town  Bonding  Act  of 
1869  (ch.  907,  Laws  of  1869),  the  existence  of 
a  railroad  corporation  having  power  to  issue 
bonds  or  stock,  and  to  construct  the  road  to 
be  aided,  lies  at  the  foundation  of  the  power 
to  issue  the  nunicipal  bonds,  and  bonds  of 
a  town  issued  for  the  stock  of  a  pretended 
corporation  fraudulently  orj^anized  are  in- 
valid save  in  the  hands  of  bona  fide  holders. 
Far n ham  v.  Benedict,  107  N.  V.  159,  13 /V." 
/:.  l\ep.  7S4,  1 1  N.  V.  S.  A'.  450 ;  reversing 
39  Hun  22. 

32«.  Eftcct  of  transfer  of  com- 
pany's francliise  after  Hubscription, 
but  before  issue. — Where  a  county  has 
agreed  to  subscribe  to  railroad  stock,  the 
fact  iiiat  the  company  sells  and  assigns  a 
portion  of  its  route  and  all  the  franchises 
connected  therewith  after  the  subscription 
is  made,  but  before  the  bonds  are  issued, 
does  not  affect  the  validity  of  the  bonds. 
The  franchise  was  not  extinguished,  but 
only  trarsierred ;    but    had    the    company 


ceased  to  exist,  it  would  make  nodifTerence. 
Henry  County  v.  Xicolay,  95  U.  S.  619. 

327.  Effect  of  delivery  to  company 
for  unauthorized  use. — The  appropria- 
tion of  the  bonds  of  a  railway  company,  by 
its  president  and  general  manager,  to  the 
payment  of  the  debts  of  other  corporations, 
from  which  the  railway  company  derives  no 
practical  benefit,  is  a  breach  of  trust,  and  il- 
legal and  void  as  to  the  railway  company, 
and  such  bonds  will  be  void  in  the  hands  of 
all  persons  acquiring  them  with  notice  of 
the  facts  showing  the  illegality  of  their  de- 
livery for  unauthorized  purposes.  Chicago 
V.  Cameron,  1 20  ///.  447,  1 1  A'^.  £■.  Rep.  899. 

328.  Effect  of  sale  of  bonds  below 
par. — Where  a  railroad  company  receives 
bonds  of  a  city  at  their  par  value  in  payment 
of  stock,  their  validity  is  not  affected  by  a 
sale  by  the  railroad  below  par,  Meyer  v. 
Muscatine,  i  IVall.  ( U.  S.)  384, 

Where  an  act  of  assembly  authorizes  a 
county  to  subscribe  to  the  capital  stock  of  a 
railroad  company,  and  provides  that  the 
bonds  to  be  issued  in  payment  therefor  shall 
not  be  sold  under  par,  the  county  is  bound 
to  provide  for  the  accruing  interest  on  such 
bonds,  notwithstanding  that  they  have  been 
disposed  of  below  par,  in  violation  of  the 
statute,  and  although  there  might  be  a 
remedy  in  equity  as  to  a  part  of  the  princi- 
pal. Com.  ex  rel.  v,  Allegheny  County 
Com'rs,  32  Pa.  St.  218.  Adams  v.  Lawrence 
County,  2  Pittsb.  {Pa.  60. 

329.  Bonds  issued  without  author- 
ity of  law  are  void.— Municipal  bonds  is- 
sued in  aid  of  a  railroad  without  legislative 
authority  are  void  in  the  hands  of  bona  fide 
holders,  and  no  municipal  ratification  with- 
out legislative  sanction  will  validate  them, 
Lewis  V,  Shreveport,  12  Am.  <S^  Eng.  R.  Cas. 
683,  108  U.  S.  282,  2  Sup.  Ct.  Rep.  634.  Sher- 
rardv.  Lafayette  County,  3  Dill.  {U.  5.)  236. 
Kankakee  County  v.  ^Etna  Life  Ins.  Co.,  106 
U.  S.  668.  2  Sup.  Ct.  Rep.  80.  Williamson 
v.  Keokuk,  44  Iowa  88.  Sykes  v.  Mayor,  etc., 
of  Columbus,  55  Miss.  115. 

And  the  collection  of  taxes  levied  to  pay 
the  interest  on  the  same  m:iy  be  enjoined. 
People  ex  rel.  v.  Hamill,  134  ///.  666,  17  N.  E. 
Rep.  799,  29  A'.  E.  Rep.  280. 

Where  a  town  has  statutory  authority  to 
subscribe  for  stock  in  a  railroad  company, , 
but  not  to  issue   negotiable  bonds  in  pay- 
ment, such  bonds  are  void,  and  no  suit  can 
be  maintained  on  them  as  non-negotiable  in- 


4 


MUNICIPAL  AND   LOCAL  AID,  330. 


681 


by  a 


struments.    Dodge  v.  Memphis,  5 1  Fed.  liep, 
165. 

Bonds  issued  by  the  city  of  Shreveport, 
Louisiana,  wliich  appear  on  their  face  to 
have  been  issued  "  in  aid  of  the  Texas  & 
Pacific  R.  Co.,"  but  which  were  in  fact  used 
to  buy  lands  to  be  donated  to  the  railroad 
company  as  a  site  for  depots  and  machine 
shops,  are  void.  Lewis  v.  Shreveport,  12 
Am.  &•  Eug.  K.  Cas.  683,  108  U.  S.  282,  2 
Sup.  a.  Kep.  634. 

The  act  incorporating  a  railroad  provided 
that  any  county  through  which  it  was  lo- 
cated could,  by  a  vote  of  its  qualified  voters, 
empower  its  county  commissioners  to  sub- 
scribe to  t'.ie  stocit  of  the  road  any  sum  not 
exceeding  $50,000,  and  if  the  county  failed 
to  autliorize  a  subr.cription,  then  any  town- 
ship therein  through  which  the  road  was 
located  might  subscribe  any  sum  not  ex- 
ceeding $5o,oooand  provide  for  tiie  payment 
thereof  by  the  issuance  of  township  bonds. 
The  act  further  provided  that  the  total 
amount  subscribed  by  any  county  and  the 
townships  therein  should  not  exceed  $100,- 
000.  The  electors  of  Delaware  county  au- 
thorized a  subscription  of  $50,000,  and  after- 
wards the  electors  of  Brown  township,  in 
the  same  county,  authorized  a  subscription 
of  $17,000,  and  issued  bonds  the  same. 
On  mandamus,  on  the  motion  of  a  bona  fide 
holder  of  some  of  the  bonds,  to  compel  the 
township  trustees  to  levy  a  tax  to  pay  the 
interest  thereon — held,  that,  the  county  com- 
missioners having  been  authorized  to  sub- 
scribe stock,  the  contingency  upon  which 
the  township  m!ght  subscribe  did  not  arise, 
and  that  the  proceedings  of  tiic  voters  of 
the  township  and  of  the  township  trustees 
were  without  authority  of  law,  and  the  writ- 
ings purporting  to  be  the  bonds  of  the  town- 
si'ip  were  void,  and  created  no  obligation  in 
tlic  hands  of  the  company  or  of  the  present 
holder.  Hopple  v.  Brown  Tp.,  13  Ohio  St. 
311.— Approving  Treadwell  v.  Hancock 
County  Com'rs,  11  Ohio  St.  191;  Goshen 
Tp.  V.  Springfield,  Mt.  V.  &  P.  R.  Co..  12 
Ohio  St.  624.  Distinguishing  State  ex 
rel.  V.  Van  Home,  7  Ohio  St.  332.— Distin- 
guished IN  State  ex  rel.  v.  Goshen  Tp.,  14 
Ohio  St.  569. 

Certain  individuals,  in  order  to  secure  a 
favorable  vote  of  a  township  on  a  proposi- 
tion to  subscribe  to  railroad  stock,  agreed 
to  indemnify  the  township, and  executed  an 
indemnity  bond  with  a  mortgage  to  secure 
it.    Subsequently  it  was  decided   that  the 


bonds  were  unauthorized  and  void.  Held: 
(I)  that  the  company  could  not  be  allowed 
to  claim  that  it  dealt  with  the  township  as 
an  agent  for  the  mortgagors,  as  it  had  full 
knowledge  of  the  facts;  (2)  that  the  town- 
ship was  not  estopped  from,  denying  the 
validity  of  its  bonds.  Hopple  v.  Hippie,  33 
Ohio  St.  116. 

The  necessary  steps  required  by  a  statute 
in  issuing  town  bonds  were  complied  with, 
and  the  bonds  were  regularly  issued,  ex- 
cept that  the  proceedings  were  had  and  the 
bonds  issued  before  the  statute  had  been 
published  so  as  to  take  effect.  They  recited 
that  they  were  issued  in  pursuance  of  the 
statute.  Held:  (i)  that  the  bonds  were  is- 
sued without  authority  of  law,  and  were  void 
in  the  hands  of  innocent  purchasers  without 
notice,  except  such  as  appeared  on  the  face 
of  the  bonds ;  {2)  that  the  supervisors  could 
not  ratify  the  bonds  by  any  subsequent  act, 
such  as  appointing  commissioners  to  vote 
the  stock ;  (3)  that  a  failure  of  the  taxpayers 
to  restrain  the  issuance  or  negotiation  of  the 
bonds  did  not  operate  as  an  estoppel  in 
pais.     Rochester  v,  Alfred  Bank,  13    Wis. 

432- 

330.  Bonds  issued  in  excess  of 
statutory  autliority.— Town  bonds  in 
aid  of  the  construction  of  a  railroad  issued 
beyond  the  amount  assented  to  by  the  tax- 
payers are  void.  Thompson  v.  Mamakating, 
yj  Hun  (N,  V.)  400.  Daviess  County  v. 
Dickinson,  117  U.  S.  6$7,6Sup.  Ct.  Rep.  897. 
—  Followed  in  Kelley  w.  Milan,  127  U.  S. 

>39- 

Where  a  county  has  issued  railroad  aid 
bonds  in  excess  of  its  authority,  the  holders 
thereof  cannot  confer  jurisdiction  on  a 
court  of  equity  by  an  offer  to  surrender  such 
excess,  and  by  asking  the  court,  when  such 
excess  is  ascertained,  to  declare  the  re- 
mainder valid  and  enter  a  decree  for  their 
enforcement.  Hedges  v.  Dixon  County,  150 
U.  S.  182, 14  Sxtp.  Ct.  Rep.  71. — Reviewing 
Reineman  v.  Covington,  C.  &  B.  H.  R.  Co., 
7  Neb.  310. 

If  bonds  be  issued  without  authority  of 
law,  the  fact  that  the  holders  paid  full  value 
for  them  will  not  remedy  a  failure  to  com- 
ply with  the  statute ;  but  where  there  may 
be  a  doubt  as  to  the  true  construction  of 
the  statute,  the  doubt  should  be  resolved  in 
favor  of  bona  fide  holders  of  the  bonds ;  and 
if  the  statute  be  susceptible  of  two  construc- 
tions, then  that  construction  should  be 
given  which  would  carry  out,  in  good  faith. 


68^ 


MUNICIPAL  AND   LOCAL  AID,  331-333. 


the  contract  between  the  parties.  Aroma 
V.  State  Auditor,  1 5  Fed.  Rtp.  843. 

Town  bonds  issued  in  aid  of  a  railroad 
may  be  regarded  as  an  "  investment,"  so  as 
to  bring  the  vote  of  the  town  within  the 
authority  conferred  by  a  statute  wliich  lim- 
its the  amount  that  a  town  may  guarantee 
to  the  amount  "  invested  "  in  the  railroad. 
Douglas  v.  Chatham,  41  Conn.  211. 

331.  Bunds  issued  under  an  un- 
constitutional law.— Bondsof  a  munici- 
pal corporation  issued  under  an  unconsti- 
tutional law  are  absolutely  void,  no  matter 
in  whose  hands  they  may  be ;  but  if  the 
legal  power  or  authority  to  issue  them  ex- 
isted, but  was  defectively  or  irregularly  ex- 
ecuted, they  are  only  voidable,  and  an  in- 
nocent holder  may  collect  them.  Where 
they  are  void,  no  subsequent  act  or  recog- 
nition of  their  validity  by  the  municipal 
authorities  can  estop  the  taxpayers  from 
denying  their  legality.  Ryan  v.  Lynch,  68 
///.  160.— Followed  in  South  Ottawa  v. 
Perkins,  94  U.  S.  260;  Post  v.  Kendall 
County  Sup'rs,  105  U.  S.  667. — Plamview  v. 
Winona  &•  St.  P.  R.  Co.,  30  Am.  &*  Eng.  R. 
Cas.  259,  36  Minn.  505,  32  N.  IV.  Rep. 
745.  Webb  V.  Lafayette  County, dT  Mo.  353. 
—Reviewing  State  v.  Linn  County  Court, 
44  Mo.  504.— Disapproved  in  Douglass  v. 
Pike  County,  loi  U.  S.  677. 

Where  a  law  creating  county  commission- 
ers to  issue  bonds  of  the  county  for  stock 
in  railroads  is  declared  unconstitutional, 
the  commissioners  are  not  even  de  facto 
officers  so  as  to  give  validity  to  their  acts. 
Norton  v.  Shelby  County,  118  U.  S.  425,  6 
.S'«^  Ct.  Rep.  1121. 

Municipal  bonds  of  a  town  were  voted  on 
August  6,  1870,  after  the  new  111.  Const, 
took  effect,  and  issued  in  aid  of  a  railroad 
corporation.  Held,  in  a  suit  on  the  same, 
that  all  previous  laws  that  had  authorized 
municipal  corporations  to  vote  aid  to  rail- 
road or  other  private  corporations,  by 
donation  or  subscription,  had  ceased  and 
become  inoperative  before  the  vote  was 
taken,  and  that  the  bonds  so  issued  were 
void  even  in  the  hands  of  innocent  holders 
for  value,  and  no  recovery  could  be  had. 
Wade  V.  LaMoille,  1 1 2  ///.  79. 

33i2.  Bunds  issued  witliout  per- 
formance ofcunditiuns  precedent.— 
Whoever  deals  in  municipal  bonds  must  be 
presumed  to  know  what  powers  the  corpo- 
ration lias  under  the  enabling  laws  of  the 
state  to  issue  the  securities  in  which  he  is 


making  investments.  Such  authority,  if 
any  exists,  is  to  be  found  in  public  laws 
equally  accessible  to  all,  and  if  bonds  are 
issued  without  performance  of  conditions 
precedent  they  are  void  even  in  the  hands 
of  purchasers  who  have  paid  full  value  for 
them.  Middleport  v.  /Etna  Life  Ins.  Co., 
82  ///.  562. 

The  111.  Act  of  April  16,  1869,  giving 
towns  the  right  to  prescribe  the  conditions 
upon  which  bonds  or  subscriptions  for  rail- 
road stock  should  be  made,  and  declaring 
that  such  bonds  or  subscriptions  "shall  not 
be  valid  and  binding  until  such  conditions 
have  been  complied  with,"  is  peremptory  in 
declaring  that  the  bonds  shall,  to  a  certain 
extent,  be  not  valid  or  binding,  or,  in  other 
words,  void,  and  this  illegality  will  affect 
them  even  in  the  hands  of  innocent  hold- 
ers without  notice.  Eagle  v.  Kolui,  84  ///. 
292. 

A  statute  authorized  subscriptions  by 
counties  and  townships  to  stock  of  rail- 
roads, but  prohibited  townships  from  sub- 
scribing where  the  people  had  voted  to  au- 
thorize a  county  subscription.  Held,  that 
bonds  issued  by  a  township  were  void  in 
the  hands  of  bona  fide  purchasers,  where  a 
vote  of  the  county  had  previously  author- 
ized a  county  subscription.  Northern  Nat. 
Bank  v.  Porter  Tp.,  5  Fed.  Rep.  568;  af- 
firmed  in  no  U.  S.  608,  4  Sup.  Ct.  Rep. 
254. 

Where  a  petition  presented  to  the  county 
judge  provided  that  the  town  bonds  should 
be  issued  on  the  condition  that  the  road  be 
constructed  through  the  town,  a  certain 
portion  when  the  road  was  located,  another 
portion  when  it  was  graded,  and  the  re- 
mainder when  it  was  completed,  and  the 
whole  amount  of  bonds  were  issued  when 
the  road  w~.s  completed  through  the  town, 
but  when  a  small  portion  thereof  outside  of 
the  town  remained  to  be  constructed— //^/</, 
that  there  was  a  substantial  compliance 
with  the  condition  ;  but.  if  not  fully  com- 
plied with,  that  this  did  not  invalidate  the 
bonds  in  the  hands  of  a  bona  fide  holder. 
Cherry  Creek  v.  Decker,  123  A'.  Y.  161,33  '^• 
Y.  S.  R.  411,  25  N.  E.  Rep.  369;  affirming 
18  N.  Y.  S.  A'.  485,  2  N.  Y.  .Supp.  514  — 
Distinguishing  Falconer  v.  Buffalo  &  J. 
R.  Co..  69  N.  Y.  491. 

333.  Bunds  issued  in  lieu  uf  pre- 
existing-; bunds.— After  a  county  had  sub- 
scribed to  railroad  stock  and  had  issued  its 
bonds  a  township  was  cut  off  and  attached 


MUNICIPAL  AND   LOCAL  AID,  334. 


68a 


by 


to  another  county.  Subsequently  the  county 
was  authorized  to  fund  its  debt  and  to  issue 
new  bonds,  differing  as  to  the  amount  and 
rate  of  interest,  but  all  changes  beneficial  to 
the  county.  Held,  that  the  new  bonds  were 
chargeable  to  all  the  territory  originally  in 
the  county  in  like  manner  as  the  original 
tonds.  Marion  County  Coni'rs  v.  Harvey 
County  Cotn'rs,  26  Kan.  181. 

In  an  action  by  a  taxpayer  of  the  town  of 
A.  to  have  certain  bonds  issued  by  said 
town  adjudged  illegal  and  void,  it  appeared 
that  the  town,  acting  in  supposed  accord- 
ance with  statutory  provisions  (ch.  907,  N. 
Y.  Laws  of  1869,  as  amended  by  ch.  925, 
Laws  of  1 87 1),  issued  its  bonds  to  pay  for 
stock  of  a  railroad  corporation,  which 
passed  into  the  hands  of  innocent  holders. 
The  bonds  were  claimed  by  the  town  to 
have  been  illegally  issued,  and  so  invalid. 
While  suits  were  pending  to  enforce  them, 
said  town,  under  the  act  of  1880  (ch.  146, 
Laws  of  1880)  authorizing  it  "  to  issue  new 
bonds  pursuant  to  the  provisions  of  chapter 
75,  Laws  of  1878,"  and  its  amendments,  to 
the  amount  and  extent  of  its  bonded  in- 
debtedness, issued  the  bonds  in  question  in 
exchange  for  and  to  retire  the  outstanding 
bonds,  the  new  bonds  drawing  a  lower  rate 
of  interest  than  the  old  ones.  Said  town  at 
the  time  had  no  other  "  bonded  indebted- 
ness" than  the  original  bonds  issued  as 
above  stated.  Held,  that  the  action  was  not 
maintainable ;  that  the  town,  having  elect- 
ed to  compromise  rather  than  to  contest 
the  validity  of  the  old  bonds,  was  estopped 
from  thereafter  questioning  it.  Hills  v. 
Pcekskill  Sav.  Dank,  loi  i\.  V.  490,  5  N.  E. 
Kep.  327  ;  reversing  26  Hun  161. — Limited 
IN  Mentz  V.  Cook,  108  N.  Y.  504,  15  N.  E. 
Rep.  541,  II  Cent.  Rep.  319. 

The  words  "  bonded  indebtedness,"  as 
used  in  said  acts  of  1878  and  1880,  are  not 
limited  to  bonds  in  all  respects  legal  and 
valid,  but  the  acts  authorize  the  refunding 
of  "  all  municipal  bonds,  save  such  as  "  have 
been  adjudged  invalid  by  the  final  determi- 
nation of  a  competent  court,  which  are  ex- 
cluded from  their  operation  by  ch.  317, 
Laws  of  1878.  Hills  V.  Peekskill  Sav.  Bank, 
10 1  A'.  V.  490,  5  A^.  E.  Rep.  327  ;  reversinir 
26  Hun  161. 

The  act  of  1878  first  mentioned  as  thus 
construed  is  not  violative  of  the  constitu- 
tional provision  (State  Const,  art  8,  §  11) 
prohibiting  municipal  corporations  from 
incurring     indebtedness     for     other    than 


"county,  city,  town,  or  village  purposes." 
The  said  act  does  not  authorize  the  incur- 
ring of  an  indebtedness,  but  the  payment  of 
an  acknowledged  debt,  and  the  constitu- 
tional provision  does  not  deprive  such  cor- 
porations of  the  riglit  to  compromise  claims 
wliicli  they  dispute.  Hills  v.  Peekskill  Sav. 
Bank,  101  N.  Y.  490,  5  A".  E.  Rep.  327 ;  re- 
versin^  26  Hun  161. 

The  defect  alleged  in  the  proceedings 
under  which  the  original  bon.'s  were  issued 
was  that  to  the  averment  in  the  petition  that 
"  the  signers  were  a  majority  of  the  taxpay- 
ers of  the  town  "  was  not  added  the  words 
"  not  including  those  taxed  for  dogs  or  high- 
way tax  only."  Held,  that  the  defect  did 
not  render  the  bonds  so  absolutely  void  as 
matter  of  law  but  that  there  might  be  rea- 
sonable question  pending  an  adjudication  ; 
and  enough  of  doubt  to  justify  the  legislature 
in  authorizing,  and  tlie  town  In  effecting,  an 
amicable  settlement.  Hills  v.  Peekskill  Sav. 
Bank,  loi  .^V.  Y.  490,  5  A^.  E,  Rep.  327  ; 
reversittg  26  Hun  161.— DISTINGUISHING 
People  ex  rel.  v.  Smith,  55  N.  Y.  135  ;  Metz- 
ger  V.  Attica  &  A.  R.  Co.,  79  N.  Y.  171. 

334.  WIicu  void  except  in  the 
ImiulH  of  bona  flde  holders.— A  proj^o- 
sition  "  to  issue  and  give  to  the  L.  &  N.  R. 
Co.,  or  the  B.  V.  &  N.  R.  Co.,  one  hundred 
thousand  dollars  of  the  coupon  bonds  of 
said  P.  county,"  etc.,  was  submitted  to  the 
voters  of  the  county  and  adopted  by  the 
requisite  majority,  and  the  bonds  issued, 
duly  certified,  and  delivered  to  the  L.  &  N. 
R.  Co.,  which  built  the  proposed  railroad. 
Held,  that  while  the  issuing  and  delivering 
of  bonds  voted  under  an  alternative  propo- 
sition would  be  enjoined  if  timely  applica- 
tion was  made  for  that  purpose,  yet,  as  by 
the  terms  of  the  proposition  the  commis- 
sioners were  authorized  to  issue  and  deliver 
the  bonds  to  the  one  of  the  companies 
named  which  should  build  the  road,  and 
having  complied  with  such  apparent  au- 
thority, their  action  in  the  premises  was 
voidable,  and  not  void.  In  other  words,  the 
bonds  were  liable  to  be  set  aside  at  any 
time  before  they  were  duly  certified  and  had 
passed  into  the  hands  of  an  innocent  pur- 
chaser (or  value.  North  v.  Platte  County, 
29  Xeb.  447,  45  A^.   W.  Rep.  692. 

The  articles  of  association  were  filed  in 
1870;  no  movement  was  made  to  begin  the 
construction  of  the  road  within  five  years 
thereafter,  as  required  by  the  N.  Y.  Act  of 
1S67  (ch.  775,  Laws  of  1867).     Held,  that, 


I 


684 


MUNICIPAL  AND   LOCAL  AID,  335-337. 


assuming  the  corporation  had  a  lei;al  exist- 
ence as  a  corponiiion,  and  that  the  bonds 
were  lawfully  issued  and  delivered  to  it,  the 
default  in  beginning  tlie  construction  caused 
its  corporate  powers  to  cease  and  terminate, 
and  deprived  the  stock  issued  to  the  town 
of  any  value,  and  therefore  that,  as  the  con- 
sideration for  the  bonds  had  failed,  they 
were  void  except  in  the  hands  of  bona  fide 
holders.  Farnham  v.  Benedict,  \Qrj  N.  Y. 
1 59.  1 3  iV.  E.  Rep.  784,  1 1  A'.  Y.  S.  R.  450 ; 
reversing  39  Hun  22. — FOLLOWING  In  le 
Brooklyn,  W.  &  N.  R.  Co.,  72  N.  Y.  245; 
In  re  Brooklyn,  W.  &  N.   R.  Co.,  75  N.  Y. 

335- 

335.  Effect  of  omission  to  register 
tlie  bonds. — Outstandingmunicipal bonds 
issued  for  stock  in  railroads  in  Kansas  are 
not  valid  unless  the  act  of  1872,  ch.  68,  §  15, 
has  been  complied  with,  which  provides 
that  it  shall  be  the  duty  of  the  state  auditor, 
upon  the  registration  of  such  bonds,  "  with- 
in ten  days  thereafter  to  notify  the  officers 
issuing  the  same  of  such  registration,  which 
fact  shall  be  entered  by  such  officers  in  a 
book  wherein  the  record  of  such  bonds  is 
kept."  Bissell  v.  Spring  Valley  Tp.,  1 5  Am. 
df  Eng.  R.  Cas.  585,  no  I/.  S.  162,  3  Sup. 
a.  Rep.  555. 

A  provision  in  a  Vermont  statute  that 
the  bonds  should  be  registered  in  the  office 
of  the  town  clerk  was  held  to  be  directory 
merely,  and  a  want  of  compliance  with  such 
provision  was  held  not  to  affect  the  validity 
of  the  bonds.  Eirsl  Nat.  Bank  v.  Arling' 
ton,  16  Blatchf.KU.  S.)  57. 

336.  Validity  of  bonds  issued  un- 
der particular  statutes. — Bonds  issued 
by  Morgan  county,  111.,  under  the  act  of 
1853,  to  the  stock  of  the  Illinois  River  rail- 
road are  valid,  and  binding  upon  the  county, 
and  constitute  a  part  of  the  asset§  of  the 
company  to  which  its  creditors  can  resort 
for  payment.  A/organ  County  v.  Allen,  3 
Am.  &•  Eng.  R.  Cas.  92,  103  (/.  S.  498. — 
Following  Thomas  v.  Morgan  County,  39 
III.  498;  Morgan  County  v.  Thomas,  76  111. 
141  ;  Thomas  v.  Morgan  County,  59  111.  480. 

The  bonds  issued  by  defendant  town, 
under  N.  Y.  Act  of  1869,  ch.  907,  in  aid  of  a 
certain  railroad  are  valid  and  binding  obli- 
gations. Williamsburg k  Sav.  Bank  v.  Solon, 
47  N.  Y.  S.  R.  496.  20  A^.  Y.  Supp.  27 ; 
modified  in  136  A^.  Y.  465,  49  A'.  Y.  S.  R. 
840,  32  N.  E.  Rep.  1058.  —  Following 
Solon  V.  Williamsburgh  Sav.  Bank,  35  Hun 
(N.  Y.)  I. 


Under  N.  Y.  Act  of  Feb.  17,  1881,  en- 
titled "  An  act  for  the  relief  of  the  towns  of 
Newfane,  Wilson,  and  Lewiston,  to  abolish 
the  office  of  railroad  commissioners  of  said 
towns,  and  to  enable  each  of  said  towns  to 
adjust  its  indebtedness  and  issue  bonds 
therefor,"  which  specially  authorized  the 
supervisor  and  justices  of  the  peace  or  "any 
three  of  such  officers "  to  issue  bonds,  the 
supervisor  is  included ;  but  bonds  issued  by 
four  of  the  officers  without  the  supervisor 
are  valid.  Currie  v.  Lewiston,  1 5  Fed.  Rep, 
yn,  21  Blatchf.  (U.S.)  236.— Following 
Phelps  V.  Lewiston,  15  Blatchf.  131. 

The  bonds  issued  by  Marshall  county, 
Tenn.,  in  payment  of  its  subscription  to  the 
capital  stock  of  the  Duck  River  Valley  Nar- 
row Gauge  railroad  are  valid.  Williams 
V.  Duck  River  Valley  N.  G.  R.  Co.,gBaxt. 
( Tenn.)  488. 

Tenn.  Act  of  1851-52,  ch.  117,  authorizing 
Hawkins  and  certain  other  counties  to  sub- 
scribe for  railroad  stock  and  to  issue  bonds, 
is  not  repealed  by  the  Code,  §  41 ;  and  bonds 
issued  thereunder  are  valid.  Clay  v .  Hawk- 
ins County  Justices,  5  Lea  {Tenn.)  137. 

Bonds  issued  by  a  city  under  Wis.  Act  of 
1853,  ch.  123,  in  aid  of  the  Watertown  & 
Madison  railroad,  by  previous  litigation 
have  been  held  valid  and  cannot  now  be 
questioned.  Regan  v.  Watertown,  30  Wis. 
259, 8  Am.  Ry.  Rep.  20.— Following  Phil- 
lips V.  Albany,  28  Wis.  340. 


4.  Ratification. 


Estoppel, 
feels. 


Waiver  of  De- 


337.  Power  of  legislature  to  ratify 
invalid  issue. — Municipal  bonds  issued 
without  authority  of  law,  and  therefore 
void,  may  be  validated  by  an  act  of  the  leg- 
islature passed  for  that  purpose,  if  the  legis- 
lature of  the  state  could  authorize  the 
issuing  of  similar  bonds.  Deyo  v.  Otoe 
County,  37  Fed.  Rep.  246.  Duanesburgh  v. 
Jenkins,  57  A'^.  Y.  177 ;  reversing  46  Barb. 
294.— Applying  St.  Joseph  Tp.  v.  Rogers, 
16  Wall.  (U.  S.)644;  Chicago.  B.  &  Q.  R. 
Co.  -v.  Otoe  County,  16  Wall.  667  ;  Olcott  v. 
Fond  du  Lac  County  Sup'rs,  16  Wall.  678. 
—  Williams  v.  Duanesburgh,  66  N.  Y.  129. 

The  legislature  may  cure  defects  in  the 
organization  of  a  railroad  so  as  to  make 
available  bonds  issued  for  stock  where  the 
company  had  a  de  facto  organization  at  the 
time  the  subscription  was  made,  and  where 
the  bonds  were  not  void  in  themselves. 
niinois  G.  T.  R.  Co.  v.  Cook,  29  ///.  237.— 


~ 


MUNICIPAL  AND   LOCAL  AID,  338,339. 


680 


Followed  in  Goodrich  v.  Reynolds,  31 
III.  490. 

\.  Y.  Act  of  Marcli,  1868,  cli.  45,  entitled 
"All  act  in  relation  to  the  Wallkill  Valley 
railroad,  and  the  town  bonds  issued  in  aid 
of  its  construction,"  and  which  embraces 
piovisioiis  validating  town  bonds  previously 
issued,  is  not  in  violation  of  N.  Y.  Const, 
art.  3,  i5  16,  providing  that  no  private  or 
local  bill  sliall  embrace  more  than  one  sub- 
ject, and  that  shall  be  expressed  in  the  title. 
Hardenbergh  v.  Van  Keuren,  4  Abb.  N.  Cas. 
(iV.  K.)  43  ;  reversed  in  16  Hun  17. 

Where  the  only  irregularity  in  the  issue 
of  city  bonds  is  that  they  were  issued  before 
the  statute  authorizing  them  had  been  pub- 
lished so  as  to  take  effect,  th.^  :_gislature 
may  subsequently  ratify  them  and  declare 
them  valid.  Knapp  v.  Grant,  27  IVis.  147. 
—Distinguishing  Fisk  v.  Kenosha,  26 
Wis.  23. 

338.  Effect  of  validating  or  cura- 
tive 8taV:iite.s. — Bonds  issued  u/ira  vires 
are  not  legalized  by  Iowa  Act  of  1857,  ch. 
258,  which  seeks  simply  to  cure  the  effect 
of  irregular  submission  of  the  question  of 
their  issuance  to  a  vote  of  the  people.  IVi'U- 
iamson  v.  Keokuk,  44  Iowa  88. 

The  Kan.  Act  of  March  9,  1874.  §7  (Laws 
1874,  p.  45),  was  intended  to  change  the 
mode  of  levying  and  collecting  taxes  to  pay 
municipal  bonds,  and  not  to  validate  and 
make  binding  upon  municipalities  bonds 
which  would  otherwise  be  void.  January 
V.  Johnson  County,  3  Dill.  {U.  S.)  402. 

Where  a  statute  authorizes  jonds  in  aid 
of  a  railroad  bearing  interest  payable  annu- 
ally, but  the  supervisors  of  the  county  issue 
them  with  interest  payable  semi-annually, 
the  legislature  may  subsequently  pass  an 
act  to  cure  the  defect  so  as  to  make  the 
bonds  valid  in  the  hands  of  bona  Jide  pur- 
chasers. Cutler  v.  Madison  County  Sup'rs, 
56  Miss.  1 1 5.— Followed  in  Madison  Coun- 
ty Sup'rs  V.  Brown,  29  Am.  &  Eng,  Corp. 
Cas.  157,  67  Miss.  684,  7  So.  Rep..  516. 

Where  commissioners  appointed  under 
the  New  York  statute  to  make  a  municipal 
subscription  to  railroad  stock  make  the 
subscription,  but  the  corporation  becomes 
merged  in  a  new  one  before  the  bonds  are 
issued,  and  subsequently  the  legislature 
provides  that  all  debts  due  to  the  old  cor- 
poration should  vest  in  the  new,  and  after 
the  bonds  are  issued  a  special  act  is  passed 
ratifying  them  and  declaring  them  binding, 
the  town  is  liable  on  the  bonds  or  upon 


interest  coupons.  Gray  w.  York,  il  BlatchJ. 
{U.S.)  335. 

A  South  Carolina  statute  authorized 
townships  to  issue  bonds  in  aid  of  a  rail- 
road, and  after  they  were  issued  and  held 
by  a  third  person,  to  be  delivered  when  the 
road  was  completed,  the  supreme  court  of 
the  state  decided  that  they  were  void,  but 
subsequently  the  legislature  passed  an  act 
recognizing  the  bonds  as  a  township  del)t 
and  authorizing  a  tax  to  pay  them.  Held, 
that  the  company  was  entitled  to  the  bonds 
after  it  had  completed  its  road.  Massa- 
chusetts &•  S.  Constr.  Co.  v.  Cherokee  Tp., 
42  Fed.  Kep.  750. 

The  debt  represented  by  the  bonds  is  in- 
curred at  the  date  of  such  curative  act. 
Massachusetts  &•  S.  Constr.  Co.  v.  Cane 
Creek  7>>.,  45  Fed.  Rep.  336. 

So.  Car.  Act  of  Dec,  1888  (20  St.  at  L.  12), 
declaring  all  township  bonds  theretofore 
issued  in  aid  of  a  railroad  to  be  a  debt  of 
the  township,  authorizing  the  levy  of  a  tax 
to  pay  it,  and  providing  that  the  bonds 
mignt  be  used  as  evidence  of  the  amount 
and  character  of  such  debt,  impressed  such 
debt  on  the  township  propria  vigore,  and  it 
is  liable  therefor,  although  the  act  authoriz- 
ing the  bonds  was  unconstitutional  and  the 
bonds  void.  Grannis  v.  Cherokee  Tp.,  47 
Fed.  Rep.  427. 

339.  Ratification  by  municipality. 
— Where  the  supervisors  of  a  county  have 
not  the  original  power  to  issue  bonds  of  the 
county  for  stock  in  a  railroad,  they  cannot 
give  validity  to  bonds  issued  without  au- 
thority by  subsequently  ratifying  them. 
Marsh  v.  Fulton  County,  10  Wall.  (U.  S.) 
676.— Distinguished  in  Milner  v.  Pensa- 
cola,  2  Woods  (U.  S.)  632. 

Bonds  issued  and  signed  by  the  last  chair- 
man of  the  county  court,  after  the  adoption 
of  the  present  constitution  abolishing  that 
court,  in  payment  of  the  county's  subscrip- 
tion to  the  capital  stock  of  a  railtoad  com- 
pany made  by  a  former  chairman  according 
to  law,  which  bonds  were  countersigned  by 
the  clerk  of  that  court,  and  sealed  with  the 
county  seal,  and  a'^cepted  by  the  president 
of  the  road  in  payment  of  the  county  sub- 
scription, are  proper  subjects  of  ratification, 
and  when  such  bonds  are  ratified  they 
are  valid,  Alexander  v.  McDowell  County 
Com'rs,  70  N.  Car.  208. 

Proof  that  a  city  council  was  proceeding  to 
levy  a  tax  to  pay  bonds  which  it  had  issued, 
and  that  it  resisted  an  action  by  piaintii! 


I 

i 


C8G 


MUNICIPAL   AND   LOCAL   AID,  340. 


lo  restrain  them  from  imposing  such  tax,  is 
sutlicient  evidence  of  ratirication  by  tiie  city 
of  the  bonds.     Knappv.Grant,  27  Wis.  147. 

340.  Acts  of  rceotfiiitioii  that  will 
estop  the  iiiuiiieiimlity.  —  A  township 
may  be  estopped  by  its  course  of  dealing  with 
a  railroad  company  to  interpose  a  defense  of 
irregularity  in  the  exercise  of  the  power  of 
issuing  bonds  in  payment  of  a  subscription 
made  upon  a  majority  vote  of  the  qualified 
electors  of  the  township,  Kansas  City  <S>» 
P.  R.  Co.  V.  Rich  Tp.,  45  Kan.  275,  25  Pac. 
Rep.  595. 

Acts  of  subsequent  acquiescence  and  rati- 
fication will  estop  a  townsliip  from  object- 
ing to  the  validity  of  bonds  issued  by  it  in 
aid  of  a  railroad,  when  they  have  come  into 
the  hands  of  an  assignee  for  value,  who  has 
taken  them  on  the  faith  of  such  acquies- 
cence, on  account  of  any  irregularities  at- 
tending their  execution  and  issuing,  short 
of  such  an  absence  of  power  or  such  an  il- 
legality as  would  render  them  absolutely 
void,  and  notice  of  such  irregularities  on 
the  part  of  the  assignee  will  not  defeat  the 
estoppel.  State  ex  rel.  v.  Goshen  Tp.,  14 
Ohio  St.  569.  Eminence  v.  Crasser,  81  Ky, 
52.  Hannibal  (S>»  St.  J.  R.  Co.  v.  Marion 
County,  36  Afo.  294.— Quoting  Bissell  v. 
Jefifersonville,  24  How.  (U.  S.)  287.— Re- 
viewed IN  Steines  v.  Franklin  County,  48 
Mo.  167. — Bennington  v.  Park,  50  Vi.  178. 

Where  a  town  has  knowledge  through  its 
otlicers  that  its  selectmen  and  treasurer  are 
issuing  bonds  in  aid  of  a  railroad,  but  takes 
no  steps  to  prevent  them,  it  cannot  urge  the 
objection  that  they  were  prematurely  issued, 
as  against  a  bona  fide  holder  of  the  bonds  for 
value.  First  Nat.  Bank  v.  Concord,  50  Vt. 
2i;7. 

.i    '         'lining  the  validity  of  bonds  issued 

y  .  t.'.  I..V    ^iior  a  vote  of  the  electors  au- 

u   >:-7'nn  issne,  it  is  a  circumstance  of 

gii'a!,  w  '   h     ":::  for  a  period  of  more  than 


fOU2 


^rties  interested  in  the  matter 


recogni;«ed  tiic  validity  of  the  bonds,  and  the 
authority  of  the  board  of  supervisors  to  issue 
them.  Nevada  Bank  v.  Sieinmitz,  64  Cal. 
301. 

j2««rr^,  whether  citizens  who  have  remained 
silent  at  the  time  a  subscription  to  railroad 
stock  was  made  by  a  municipal  corporation, 
and  its  bonds  therefor  issued,  will  not  be 
afterwards  estopped  from  questioning  their 
validity  when  the  bonds  have  passed  into  the 
hands  of  innocent  holders.  Black  v.  Cohen, 
53  Ga.  621. 


Prior  to  1865  a  county  had  subscribed  to 
the  stock  of  a  railroad.  In  1865  a  new  con- 
stitution was  adopted  providing  that  such 
subscriptions  should  not  be  authorized  un- 
less upon  a  two-thirds  vote.  The  road  never 
was  built,  and  in  1868,  by  consent  of  the 
company  to  which  the  subscription  was 
made,  the  county  court  without  a  vote  trans- 
ferred the  subscription  to  another  company, 
that  built  the  road  and  received  the  county's 
bonds.  The  statute  made  it  the  duty  of  the 
county  court  to  take  proper  steps  to  protect 
the  interest  of  the  county.  Held,  that  if 
any  doubt  existed  as  to  the  power  of  the 
court  to  make  the  transfer  the  taxpayers 
should  not  be  allowed  to  set  i:  up  against  a 
suit  by  bona  fide  holders  of  the  bonds,  as 
the  action  of  the  court  was  in  good  f.iiih  to 
protect  their  interest.  Ray  County  v.  Van- 
sycle,  96  U.  S.  675. 

On  January  i,  1876,  a  county  issued  to  a 
railroad  company  its  negotiable  tf*n  per  cent, 
coupon  bonds  for  $95,000,  that  being  more 
than  ten  per  cent,  of  the  assessed  valuation 
of  the  county.  These  bonds  were  duly 
registered  and  certified  by  the  county  clerk, 
and  by  the  secretary  and  auditor  of  state. 
Afterwards  the  county  refused  to  pay  inter- 
est, and  an  action  was  instituted  to  collect 
interest  due  on  coupons.  The  defense  of 
the  illegality  of  the  bonds,  owing  to  the  ex- 
cessive issue,  was  interposed,  but  the  bonds 
were  held  valid  in  the  hands  of  bona  fide 
purchasers  for  value.  No  proceedings  in 
error  or  by  appeal  were  then  taken.  The 
county  board  then  agreed  with  the  holders 
of  the  bonds  to  execute  to  them  twenty-year 
six  per  cent,  refunding  bonds  to  be  substi- 
tuted for  the  bonds  of  1876,  under  the  pro- 
visions of  the  act  of  February  28, 1 883.  The 
refunding  bonds  were  executed  and  regis- 
tered and  certified  by  the  county  clerk,  but 
the  secretary  and  auditor  of  state  refused  to 
register  them  or  to  certify  that  they  were 
lawfully  issued,  alleging  that  such  was  not 
the  fact.  The  county  then  applied  to  the 
supreme  court  for  a  peremptory  writ  of  man- 
damus to  compel  action  by  the  state  officers, 
and  judgment  was  obtained  in  favor  of  the 
county,  awarding  the  writ  and  compelling 
the  certification  and  registry.  After  they 
were  certified  and  registered  the  county  ex- 
changed them  for  the  original  bonds  of  1876 
and  the  interest  accrued  thereon,  and  de- 
stroyed the  original  bonds.  In  an  action  to 
enforce  payment  of  the  interest  accrued  on 
the  refunding  bonds — held,  that  the  county 


I  46^ 


MUNICIPAL  AND   LOCAL  AID,  341-343. 


C87 


was  estopped  to  deny  their  validity  in  the 
hands  of  bona  fide  holders  for  value.  State 
ex  rel.  v.  Wilkinson,  20  Neb.  610,  31  A^.  W, 
Kep.  376.— Reviewing  Kieneman  v.  Cov- 
inij;toii,  C.  &  B.  H.  R.  Co., 7  Neb.  310. 

341.  Waiver  by  city  of  irre{;iilari- 
ties  ill  the  iHSiie. — Frequent  acts  of  rec- 
ognition on  the  part  of  county  authorities 
of  bonds  issued  for  railroad  stock,  such  as 
voting  for  directors  and  paying  interest,  will 
be  taken  as  waiving  any  irregularities  in  the 
issue  of  the  bonds.  Johnson  v.  Stark  County, 
24  ///.  75.  Barrett  v.  Schuyler  County  Court, 
44  Mo.  197. 

3412.  Elfectof  payment  of  interest 
or  levying  tax.— After  a  town  has  ac- 
cepted the  railroad  stuck  for  which  it  issued 
coupon  bonds,  and  after  it  has  paid  interest 
on  the  bonds  for  a  number  of  years,  it  is 
estopped  from  questioning  their  validity  as 
against  bona  fide  holders.  Whiting  v.  Pot- 
ter. 6  Blatchf.  {U.  S.)  165,  2  Fed.  Kep.  517. 
First  Nat.  Bank  v.  Wolcott,  19  Blatchf. 
(U  S.)  370,  7  Fed.  Rep.  892.— Following 
Irwin  V.  Ontario,  18  Blatchf.  259. 

It  cannot  urge  any  mere  irregularities  in 
the  proceedin<;s  authorizing  the  bonds. 
Mercer  County  Sup'rs  v.  Hubbard,  45  ///.  1 39. 
—Approved  in  Roberts  v.  Bulles,  loi  U. 
S.  119. —  Clay  County  v.  Society  for  Savings, 
5  Am.  5-  Eng.  R.  Cas.  170,  104  I/.  S.  579. 
Keithsburg  v.  Frick,  34  ///.  405.  Nelson  v. 
Haywood  County,  38  Am.  &*  E^'^K-  ^'  ^''•'• 
620,87  Tenn.  781,  If  5".  W.  Rep.  885. 

Or  a  lack  of  authority  in  the  officers  who 
issued  them.  Ray  County  v.  Vansycle,  96 
U.  S.  675.  Leavenworth,  L.  &•  G.  R.  Co.  v. 
Douglas  County  Com'rs,  18  Kan.  169,  15  Am. 
Ry.  Rep.  256.  Brownell  v.  Greenwich,  8  A^. 
Y.S.  R.  737;  affirmed  in  \\\N.  Y.  518, 
24  A^.   Y.  S.  R.  6.  22  N.  E.  Rep.  24. 

Or  that  the  election  to  vote  the  subscrip- 
tion was  called  by  the  county  court  instead 
of  the  board  of  supervisors.  Marshall 
County  Sup'rs  v.  Schenck,  5  Wall.  (U.  S.) 
772. 

While  the  payment  of  interest  will  not 
validate  a  municipal  bond  issued  without 
authority  of  law,  yet,  where  the  objection  is 
not  a  want  of  power  to  issue,  but  of  compli- 
ance with  a  condition,  in  respect  to  which 
there  may  be  an  estoppel  by  recital  or 
other  acts  of  the  city  officials,  payment  of 
interest  on  the  bonds  ought  to  have  great 
weight.  Moulton  v.  Evansville,  25  Fed.  Rep. 
582. 

Where  county  bonds  are  issued   under 


proceedings  that  are  not  warranted  by  law, 
they  are  void ;  but  where  there  has  only 
been  an  irregularity  in  the  proceedings,  the 
bonds  may  be  rendered  valid  in  the  hands 
of  innocent  purchasers  by  acquiescence  on 
the  part  of  the  people,  and  by  the  county  in 
levying  a  tax  and  paying  interest  thereon. 
Clarke  v.  Hancock  County  Sup'rs,  27  ///.  305. 
—Distinguishing  Schuyler  County  Sup'rs 
V.  People  ex  rel.,  25  111.  163.  —  Distin- 
guished in  Shelby  County  Court  v.  Cum- 
berland &  O.  R.  Co.,  8  Bush  (Ky.)  209. 

Bonds,  issued  to  a  railroad,  void  for  irreg- 
ularity in  their  issue  will  not  be  validated 
by  levying  a  tax  and  paying  interest  there- 
on. Marshall  County  Sup'rs  v.  Cook,  38  ///. 
44. 

Payment  of  interest  for  a  time  by  a  coun- 
ty on  the  whole  amount  of  bonds  issued  for 
rnilroad  stock  does  not  amount  to  a  ratifi- 
cation of  those  issued  beyond  the  amount 
authorized  by  law.  Daviess  County  v.  Dick- 
inson, 117  U.  S.  657,  6  Sup.  Ct.  Rep.  897. 

343.  DecisioiiH  against  validity  ot 
ratified  bonds  not  followed  in  fed- 
eral courts. — A  legislature  may  ratify 
bonds  where  it  might  originally  have  au- 
thorized them,  and  when  so  ratified  a  fed- 
eral court  will  sustain  their  validity,  not- 
withstanding subsequent  state  decisions  to 
the  contrary.  Do7vs  v.  Elmwood,  34  Fed. 
Rep.  \\\;  appeal  dismissed  in  136  U.  S.  651, 
10  Sup.  Ct.  Rep.  1074.— Following  BoUes  v. 
Brimfield,  120  U.  S.  759,  7  Sup.  Ct.  Rep. 
736. 

Where  a  state  legislature  has  affirmed  the 
validity  of  municipal  bonds  by  strong  im- 
plication, the  U.  S.  supreme  court  will  not 
follow  subsequent  state  decisions  declaring 
them  invalid.  Pine  Grave  Tp.  v.  Talcott,  19 
Wall.  {U.S.)  666.— Disapproving  People 
ex  rel.  v.  Salem  Tp.,  20  Mich.  452  ;  Bay  City 
V.  State  Treasurer,  23  Mich.  499.  Follow- 
ing Chicago,  B.  &  Q.  R.  Co.  v.  Otoe 
County,  16  Wall.  (U.  S.)  667;  Olcott  v. 
Fond  du  Lac  County  Sup'rs,  16  Wall.  678. 
—Reviewed  in  Louisville  &  N.  R.  Co.  v. 
Gaines,  2  Flipp.  (U.  S.)  621,  3  Fed.  Rep.  266. 

Where  a  county  issues  its  bonds  in  aid  of 
a  railroad  payable  to  bearer,  and  the  su- 
preme court  of  the  state  afterwards,  but  be- 
fore the  bonds  are  due,  declares  the  law 
authorizing  them  to  be  constitutional,  all 
persons  holding  the  bonds  may  consider  the 
question  settled,  and  it  cannot  be  reopened 
so  as  to  aflect  them.  Smith  v.  Tallapoosa 
County,  2  Woods  {U,  S.)  574. 


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4 


Hi: 


(ibS 


MUNICIPAL   AND    LOCAL   AID,  344,  343. 


ml 


I  s  Hi 


5.  Negotiability,  and  Rights  of  Purchasers, 
a.   Negotiability.* 

344.  Uuilwtiy  ni<l  bonds  are  iicgo- 
tiabl<t  iiisti'iiiiUMit.s.— Bonds  and  the  cou- 
pons attached  issued  by  municipalities  pay* 
able  to  bearer  possess  nil  the  qualities  of 
commercial  paper.  Ditrant  v.  Iowa  County, 
Woolw.  (U.S.)  69.  Getpcke  v,  Dubuque,  I 
Wall. (U.S.)  175.  — Reviewed  in  Corcoran 
V.  Chesapeake  &  O.  Canal  Co.,  i  MacArth. 
(D.  C.)  iiZ.— Thomson  v.  Lee  County,  3 
Wall.  (U.  S.)  327.  Le.vington  v.  liutler.  14 
Wall.  ( U.  S.)  282.  Humboldt  Tp.  v.  Long,  9? 
U.  S.  642.— Followed  in  Moultrie  County 
71.  Fairfield,  105  U.  S.  370;  Dallas  County  7'. 
McKenzie,  no  U.  S.  686. — Marion  County 
Com'rs  V.  Clark,  94  U.  S.  278.— Di.STlN- 
GUISHED  IN  Woodruff  V.  Okolona,  57  Miss. 
806.— Roberts  Tp.  v.  Dolles,  loi  U.  S.  119.— 
Approving  Johnson  v.  Stark  County,  24  111. 
75;  Mercer  County  Sup'rs  v.  Hubbard,  45 
111.  139. — Mount  Vernon  v.  Hovey,  52  Ind. 
563.  Barrett  v.  Schuyler  County  Court,  44 
Mo.  197. — Following  Moran  v.  Miami 
County  Com'rs,  2  Black  (U.  S.)  722. — Alvord 
V.  Syracuse  Sav.  Bank,  98  N.  V.  599;  affirm 
ing  34  Hun  143.  San  Antonio  v.  Lane,  32 
Tex.  405. 

While  the  non-performance  of  conditions 
will  be  a  good  defense  against  the  railroad 
company,  it  would,  irrespective  of  the  111. 
Act  of  April  16,  1869,  be  unavailing  against 
innocent  holders  for  value.  Eagle  \.  Kohn, 
84  ///.  292. 

Under  Iowa  Code  of  1851,  §950,  which 
provides  that  all  instruments  shall  have  the 
incidents  of  negotiability  when  such  intent 
of  the  maker  is  manifest,  but  that  the  words 
"order"  or  "bearer" will  not  alone  mpr.ifest 
such  intent,  a  county  bond  issued  to  a  raf.- 
road  company  "  or  its  assigns,"  payable  at  a 
bank  in  tlie  city  of  New  York,  and  specify- 
ing that  it  is  issued  in  part  payment  of  a 
subscription  for  stock,  sufficiently  manifests 
the  intent  of  negotiability  and  is  negotiable. 
Clapp  V.  Cedar  County,  5  Io7va  1 5. 

Express  power  is  not  essential  to  confer 
the  authority  to  give  municipal  bonds  a  ne- 
gotiable and  commercial  form  and  charac- 
ter. It  may  be  inferred  from  the  intent  of 
the  act,  indicated  by  its  purpose  and  scope. 
Reference  may  be  had,  in  aid  of  this  con- 
struction, to  the  prevailing  usage  and  cus- 

*  Negotiability  nf  municipal  railway  aid  cou> 
pon  bonds,  and  detached  coupons,  see  note,  i  L. 
R.  A.  299. 


tom  in  money  cenfrs  in  rej;ard  to  the  form 
and  incidents  of  bonds  necessary  to  their 
highest  availability  for  the  purpose  to  be 
accomplished  and  the  greatest  benefit  to  the 
city.  Authority  to  issue  interest-bearing 
municipal  bonds,  having  lung  maturities,  to 
supply  means  to  make  costly  improvements, 
or  in  aid  of  railroads,  justifies  tlie  inference 
that  they  were  intended  by  the  legislature 
to  be  sold  in  the  market  as  commercial  and 
negotiable  securities.  It  may  be  safely  as- 
sumed that  the  legislature  intended  that 
the  exercise  of  the  power  conferred  should 
be  made  in  a  mode  to  promote  the  best  in- 
terests of  the  city — to  enliance  the  market 
value  of  bonds  by  divesting  them  of  equities 
and  making  them  negotiable.  Mayor,  etc., 
of  Vicksburg  \.  Lombard,  51  Miss.  iii. 

345.  Such  boiulM  deetiied  not  ne- 
gotiable.—  Bonds,  not  being  promises  to 
pay  money  absolutely,  are  not  negotiable, 
and  are  therefore  open,  in  the  hands  of 
any  holder,  to  defenses  which  would  have 
been  available  against  the  payee.  Merri- 
"wether  v.  Saline  County,  5  Dill.  (U.  S.)  265. 

A  bond  under  seal  payable  to  an  obligee 
or  "  assigns"  and  containing  on  its  face  no 
words  importing  negotiability  is  not  nego- 
tiable, and  can  pass  only  by  assignment. 
Cronin  v.  Patrick  County,  4  Hughes  ( U.  S.) 
524. 

Attaching  to  such  bond,  on  the  same  sheet, 
the  form  of  an  irrevocable  power  of  attorney, 
containing  a  blank  for  the  name  of  the  at- 
torney who  for  value  received  it  to  sell,  as- 
sign, and  transfer  it  as  a  "  registered  bond  " 
of  the  corporation  issuing  it,  and  signed 
under  seal  by  the  obligee,  does  not  make 
the  bond  negotiable,  but,  on  the  contrary, 
fixes  its  character  as  a  "  registered,"  non- 
negotiable  bond.  Cronin  v.  Patrick  County, 
4  Hughes  {U:S.)  524. 

The  fact  that  such  a  bond,  with  such  an 
annex,  is  issued  by  a  county  to  a  railroad 
company  does  not  affect  its  essential  char- 
acter so  as  to  convert  it  from  a  non-negotia- 
ble into  a  negotiable  instrument.  Cronin  v. 
Patrick  County,  4  Hughes  ( U.  S.)  524. 

County  bonds  issued  in  payment  of  a 
county  subscription  for  railroad  stock  have 
not  the  quality  of  commercial  paper  in  Penn- 
sylvania ;  they  are  but  bonds,  and,  even  in 
the  hands  of  innocent  and  remote  purchas- 
ers, they  are  subject  to  the  equities  existing 
against  them,  when  in  the  hands  of  the  first 
purchasers  from  the  company.  The  inter- 
est coupons  are  subject  to  the  same  equi- 


*',;- 
sm 


^^ww 


MUNICIPAL  AND   LOCAL  AID,  340-340. 


680 


ties.  Dfimond\.  /.aTvu/ue  County,  37  Pit. 
St-  353.— DiSAPPROVKi)  IN  Mercer  County 
V.  Hackct,  I  Wall.  (U.  S.)  83.  Distin- 
(lUiSHKD  IN  Carpenter  <'.  Kommcl,  5  Pliiia. 
('^a.)  34.  EXPI.AINKI)  iSi  Biairiard  v.  New 
York&  H.  R.Co.,  25N.  Y.  496. 

340.  Siic'li  ImuhIm  not  aceoiiiinofla- 
tloii  paper. — An  accommodation  bill  or 
note  is  one  to  which  the  accomnnidating 
party  lias  put  his  name,  vvitliout  considera- 
tion, for  the  purpose  of  accommodating 
some  otiier  party  who  is  to  use  it  and  is 
expected  to  pay  it.  The  definition  is  ana- 
lyzed and  applied  in  this  case  in  consider- 
ing the  character  of  certain  bonds  issued  by 
tlie  plaintiti  counties  to  the  defendant  cor- 
poration, in  part  payment  for  a  subscription 
to  the  corporation  stock,  pursuant  to  con- 
tracts supposed  at  tiie  time  to  be  valid,  but 
afterwards  adjudged  to  be  ultra  vires  ;  and 
tlie  bonds  are  held  not  to  be  accommoda- 
tion paper.  Jefferson  County  v.  'Burlington 
&-  M.  R.  K.  Co..  66  /owa  385,  16  A'.  IV. 
Rep.  561,  23  N.  W.  Rep.Z^. 

Several  counties  each  agreed  to  subscribe 
a  certain  amount  to  tlie  stock  of  a  railroad, 
and  issued  their  negotiable  bonds  for  a  pay- 
ment of  a  part  of  the  bonds,  which  were 
adjudged  valid  in  the  hands  of  innocent 
holders,  and  the  counties  paid  the  same; 
but  subsequently  it  was  adjudged  that  the 
subscription  was  ultra  vires,  and  no  further 
bonds  were  issued ;  and  it  was  further  ad- 
judged that  the  contracts  were  entire,  and 
that  the  counties  could  not  demand  certifi- 
cates of  stock  on  the  partial  payments. 
The  counties  then  sued  to  recover  from  the 
company  the  money  paid  on  the  bonds  on 
tiie  ground  that  they  were  accommodation 
paper,  which  made  the  company  primarily 
liable.  Held,  that  if  the  counties  had  any 
right  of  action  it  accrued  immediately  on 
the  delivery  of  the  bonds,  and  not  upon 
their  payment ;  and  that  the  action  would 
bebiirred  in  five  years  from  the  delivery  of 
the  bonds.  (Berk,  C.J..  and  Adams.  J.,  dis- 
senting.) Jefferson  County  \.  Burlington  &* 
M.  R.  R.  Co.,  66  Io7ua  385,  16  A'.  W.  Rep. 
561,  23  A^,  W.  Rep.  899. 

347.  Failure  to  pay  Interest  does 
not  affect  negotiability..— Failure  to 
pay  interest  or  bonds  issued  by  a  county 
to  aid  in  the  construction  of  a  railroad  does 
not  affect  their  negotiability.  Coler  v. 
Santa  Fi  County  Com'r»,  (N.  Mex.)  vj  Pac. 
Rep.  619. 

6  D.  R.  D.— 44 


•348.  Kfl'ect  4»f  r«>t'itnlM  upon  ne{;o- 
tlabillty.— .\  county  bond  issued  to  a  rail- 
road company  or  its  assigns  in  payment  of 
irs  subscription  of  stock  is  negotiable  ;  at 
least  such  an  instrument  is  assignable  or 
transferable  by  indorsement  or  by  delivery. 
Such  a  bond,  although  it  may  contain  re- 
citals of  the  facts  whereb)  authority  for  its 
issue  is  shown,  and  also  contain  a  provision 
that  tlie  holder  may,  at  his  election,  have 
an  equal  amount  of  shares  in  the  capital 
stock  of  said  railroad  in  lieu  of  the  money, 
is  not  thereby  rendered  non  negotiable. 
Clapp  V.  Cedar  County.  5  hmia  1 5. 

A  bond  of  a  township  which  recites  that 
it  is  to  be  converted  and  exchanged  for 
bonds  of  a  county  whenever  a  certain  in- 
junction should  be  dissolved  is  not  nego- 
tiable, and  no  action  will  lie  thereon  after 
the  consideration  has  failed.  Merriwether 
V.  Saline  County,  s  Dill.  {U.  S.)  265.— Re- 
viewing Foster  v.  Callaway  County,  3  Dill. 
200;  State  ex  rel.  v.  Linn  County  Court,  44 
Mo.  504. 

Municipal  bonds  which  recite  that  they 
are  not  payable  until  the  road  is  in  running 
order,  and  the  trains  running  thereon  to  a 
certain  place,  are  not  negotiable.  Black- 
man  V.  Lehman,  63  Ala.  547,  35  Am.  Rep. 
57.— Distinguished  in  Reid  v.  Bank  of 
Mobile,  14  Am.  &  Eng.  R.  Cas.  554,  70  Ala. 
199. 

340.  Indorsement  and  its  effect.— 
Although  a  bond  issued  by  a  city  for  sub- 
scription to  railroad  stock  may  not  be  com- 
mercial paper  in  the  sense  of  the  law  mer- 
chant, yet  it  is  negotiable  by  indorsement 
or  delivery.  Where  it  bears  on  its  face 
evidence  of  genuineness,  and  there  is  noth- 
ing to  excite  suspicion,  the  person  who 
takes  it  bona  fUle,  in  the  course  of  business, 
can  enforce  payment,  though  it  be  not  valid 
as  between  tlie  original  parties.  Maddo.v  v. 
Graham,  2  Mete.  {Ky.)  56. 

Where  municipal  bonds  are  made  payable 
to  the  railroad  company  or  assigns,  and  the 
company  transfers  them  by  unqualified  in- 
dorsement, it  is  bound  as  indorser,  if  the 
municipality  fails  to  pay  after  maturity,  and 
proper  steps  have  been  taken  to  charge  the 
company  as  indorser.  Bonner  v.  New  Or- 
leans, 2  Woods  {U.  S.)  135. 

An  indorsement  of  county  bonds  issued 
to  the  Alabama  R.  Co.  by  its  president  is  suf- 
ficient to  pass  the  title  to  the  bonds,  which 
were  issued  for  the  purpose  of  negotiation. 


a 


C90 


MUNICIPAL   AND    LOCAL  AID,  350-352. 


IB 


.^:':f:., 


notwithstanding  tlie  diartcr  of  ilie  road  rc- 
■^(iiircs  a  ditlerent  mode  of  making  onlinary 
contracts.  C'ow'rs  of  Roads  v.  Shorter,  50 
till.  489. 

JlrtO.  TraiiHler  by  delivery. -Making 
bonds  on  their  face  payable  to  bearer 
amounts  to  a  direction  that  the  bonds  shall 
be  transferable  by  delivery,  like  a  bank-note 
or  a  bill  of  exchange.  Com.  ex  rel.  v.  Al- 
le^'/ieny  County  Coi/t'rs,  37  /'a.  St.  237. 

d.  Kights  of  Holflers  and  Bona  Fide  Pur- 
chasers.* 

351.  I8N110  being  authorized,  piir- 
cliiiNur'M  title  iM  eoniplete.— A  county 
j  idge  in  New  York  has  jurisdiction  to  decide 
upon  an  application  by  taxpayers  for  an 
issue  of  county  bonds  in  payment  of  rail- 
road stock,  and  his  judgment  unreversed  is 
final,  and  cannot  be  attacked  collaterally  in 
a  suit  on  the  bonds  by  a  dona  fide  holder. 
Lyons  v.  Munson,  99  U.  S.  684.— Approving 
Orleans  v.  Piatt,  99  U.  S.  676. 

A  city,  in  payment  of  valid  debts  against 
it,  issued  bonds  in  the  similitude  of  bank- 
bills,  in  violation  of  statutes  of  the  state. 
Afterwards  the  city  called  in  and  canceled 
these  bonds,  and  issued  in  their  place  other 
bonds,  which  were  unobjectionable  in  form. 
Held,  that  the  city  was  liable  on  the  latter 
bonds  to  holders  thereof  who  had  not  par- 
ticipated in  the  issue  of  the  illegal  bonds, 
although  they  had  notice  of  all  the  facts. 
Merchants'  Nat,  Bank  v.  Littie  Hock,  5  Dill. 
( [j.  S.)  299. 

352.  Irrc{(iilarities  in  or  prior  to 
Imsiic  no  defense  against  innocent 
pii rclia.se r.  —  (i)  General  rules.  —  Objec- 
tions whicii  relate  only  to  the  regularity  in 
the  making  and  issue  of  municipal  bonds  in 
aid  of  a  railroad  company,  and  not  to  the 
power  to  issue  the  same,  cannot  prevail 
against  dona' fide  holders.  Douglas  v.  Nt- 
antic  Sav.  Bank,  3  Am.  &*  Etig.  R.  Gas,  54, 
97  ///.  228.  Rogers  v.  Keokuk,  18  Law.  Ed. 
(U.  S.)  74.  Rogers  v.  Burlington,  3  Wall. 
<t/.  5.)  654.— Followed  in  Mineral  Point 
V  Lee,  18  Law.  Ed.  456. — Brownell\.  Green- 
wich. 1 14  A',  r.  518,  22  N:  E.  Rep.  24,  24  A^. 

Y.  S.  R.  6,  4  L.  R.  A.  6S5.— Distinguish- 
ING  Potter  V.  Greenwich,  92  N.  Y.  662,  26 
Hun  yid.— Clark  V.  Janesville,  10  Wis.  136. 
—  Followed  in  Bushnell  v.  Beloit,  10  Wis. 
195;  Lawson  v.  Milwaukee  &  N.  R.  Co.,  30 

*  Bona  fide  holders  of  municipal  aid  bonds, 
see  note,  30  Am.  &  Eng.  R.  Cas.  267. 


Wis.  %0)T.— Goodman  v.  Simonds,  20  How. 
(U.  .s.)  343.- Ftii.i.oWKD  IN  Mineral  Point 
V.  Let',  iS  Liiw.  Fd.  456. 

Under  tin;  settU.-d  decisions  of  the  courts 
of  Missouri,  county  bonds,  in  pay;  .:nt  of 
stock  in  a  railroad,  issued  by  a  de  facto 
court,  under  seal,  cannot  be  impeached 
in  the  hands  of  an  innocent  holder  by 
showing  that  the  president  who  signed 
them  was  not  a  de  jure  officer.  Ralls 
County  v.  Douglass  7  Am.  &*  Eng.  R.  Cas. 
212,  105  U.  S.  728.— Following  State  v, 
Douglass,  50  Mo.  595 ;  flarbaugh  z/.  Winsor. 
38  Mo.  327. 

Where  bonds  of  a  township  were  voted 
to  a  railroad  which  subsequently  consoli- 
dated with  another  road,  and  the  records  of 
the  township  show  that  the  bonds  were  di- 
rected to  be  issued  and  delivered  to  the 
consolidated  company,  the  township  is  es- 
topped from  denying  their  validity  as 
against  a  bona  fide  holder  for  value.  Har- 
ter  Tp,  V.  Kernochan,  3  Am.  <S>»  Eng.  R, 
Cas.  82,  103  U,  S.  562. 

Where  county  bonds  were  issued  to  a  rail- 
road, and  no  steps  were  taken  for  two  and 
one  half  years  to  enjoin  them,  the  time 
between  the  election  and  the  time  when  the 
company  parted  with  them,  and  the  county 
having  paid  interest  thereon  for  ten  years, 
the  county  is  estopped,  as  against  a  bona  fide 
holder  for  value,  from  setting  up  want  of 
proper  notice  of  the  election  to  authorize 
them.  Anderson  County  v.  Beal,  113  U.S. 
227,  5  Sup.  Ct.  Rep.  433.  — FoLLCWEr  IN 
Au  V.  New  York,  L.  E.  &  W.  R.  Co.,  29  Fed. 
Rep.  72. 

Where  a  statute  of  the  state  provides  for 
the  registry  of  municipal  bonds  and  a  cer- 
tificate thereof,  such  certificate  should  be 
held  sufficient  evidence  to  a  purchaser  of 
the  existence  of  the  facts  upon  which  alone 
the  bonds  could  be  registered.  Cairo  v. 
Zane,  149  U.  S.  122,  13  Sup.  Ct.  Rep.  803. 

Where  a  city  has  already  issued  bonds,  if 
it  is  proceeding  to  issue  other  bonds  which 
are  unauthorized,  and  which  will  interfere 
with  the  payment  of  the  first  bonds,  the 
holders  of  the  first  bonds  may  restrain  the 
city  from  issuing  them,  if  they  apply  in 
time ;  but  if  they  remain  silent  until  the 
second  bonds  are  issued  and  in  the  hands 
of  bona  fide  holders,  it  is  too  late  for  them 
to  set  up  a  claim  that  the  bonds  are  invalid, 
and  that  the  holders  have  no  rights  as 
against  them  or  the  city.  Ranger  v.  Nevf 
Orleans,  2  Woods  (I/.  S.)  128. 


■        '   •■'"J;"  .W. 


:;UNICIPAL   AND    LOCAL   AID,  .'Wa. 


601 


And  the  holders  of  such  first  honds  have 
n.)  r'liihl  to  insist  th:it  their  bonds  shall  be 
paid  in  preference  to  the  second  issue  out 
of  moneys  not  specially  collected  by  the 
<;ity  for  that  purpose,  even  though  their 
lioiids  arc  due  and  the  others  are  not. 
RiUijier  V.  Neiu Orleam,  2  ll'oo(is(U.  S.)  128. 

Wliere  municipalities  arc  authorized  by 
statute  to  fund  their  existing  bonded  in- 
debtedness, and  a  funding  bond  is  regularly 
issued  in  lieu  of  one  taken  up,  payment  can- 
not be  denied  a  6ona  fide  holder  upon  the 
ground  of  an  irregularity  in  issuing  the 
original  bond,  such  as  that  it  was  issued  by 
county  supervisors  instead  of  by  the  county 
court.  Ballon  V.  Jasper  County,  3  Fed.  Rep. 
620. 

Where  bonds  are  issued  under  New  York 
statutes  which  require  a  majority  of  the 
taxpayers  to  assent  thereto,  and  the  town  as- 
sessor to  make  an  affidavit  tliat  such  tax- 
payers have  assented,  such  aflidavit  is  con- 
clusive in  favor  of  bona  fide  purchasers  of 
the  bonds,  and  they  need  not  show  that  the 
taxpayers  did,  in  fact,  give  their  consent ; 
and  a  federal  court  is  not  bound  by  a  de- 
cision of  the  highest  state  court  to  the  con- 
M.iry  rendered  after  such  purchasers  had 
acquired  rights.  McCall  v.  Hancock,  10 
Fed.  Rep.  8,  20  Dlatchf.  (U.  S.)  344.— F(jl- 
LowiNG  Fooie  V.  Hancock,  15  Blatchf.  343; 
Venice  v.  Murdock,  92  U.  S.  494.  Nor 
FOLLOWING  Cagwin  v,   Hancock,  84  N.  Y. 

532. 

Where  a  city  is  authorized  to  issue  its 
bonds  in  aid  of  a  railroad  if  a  majority  of 
its  citizens  vote  in  favor  thereof,  individual 
citizens  and  taxpayers  may  enjoin  the  issue 
and  negotiation  of  the  bonds  if  a  majority 
fails  to  vote  in  favor  of  the  proposition,  if 
they  act  in  proper  time;  but  if  the  bonds 
are  issued,  regular  on  their  face  and  negoti- 
able in  form,  after  they  have  passed  into  the 
hands  of  purchasers  for  value  without  no- 
tice taxpayers  cannot  enjoin  a  collection  of 
a  tax  to  pay  interest  on  them.  State  ex  rel. 
V.  AtoHtgoiiiery,  74  Ala.  226. 

The  fact  that  disqualified  persons  were 
allowed  to  vote  at  an  election  upon  a  prop- 
osition to  issue  bonds  in  aid  of  a  railroad 
is  not  a  valid  defense  to  an  action  on  the 
bonds  by  bona  fide  holders  thereof.  State 
ex  rel.  v.  Sanderson,  54  Mo.  203. 

(2)  Illustrations.  —  A  special  act  was 
passed  authorizing  a  city  to  subscribe  for 
stock  in  a  railroad.  The  city  council  passed 
an  ordinartce  to  issue  the  bonds,  and  they 


WLMc  issued  and  regularly  sold.  It  was  ob- 
jected that  the  bonds  were  void  because 
the  (jrdinance  was  not  recorded,  as  required 
by  the  city  charter.  A  section  of  the  char- 
ter provided  that  all  ordinances  authorized 
by  a  certain  other  section  should  be  void  if 
not  recorded  in  thirty  days,  but  that  section 
did  not  provide  for  an  ordinance  to  make 
such  a  subscription.  Held,  that  the  pro- 
vision for  recording  ordinances  did  not 
apply  ,  but  even  if  it  did  the  defect  could 
not  be  set  up  against  a  bona  fide  holder  of 
the  bonds.  Ainey  v.  Mayor,  etc.,  of  Alle- 
g/ieny  City,  24  J  low.  {U.  S.)  364. 

A  city  voted  to  issue  its  bonds  for  $100,- 
000  for  a  like  amount  of  railroad  stock. 
Afterwards  it  was  agreed  that  the  city  should 
issue  the  whole  amount  of  the  bonds  and 
sell  them  for  $5000  in  railroad  stock  and  a 
return  of  a  like  amount  of  the  city  bonds. 
This  arrangement  was  carried  out,  and  the 
bonds  were  certified  to  the  state  auditor  for 
registration  as  an  issue  of  $95,000.  Held, 
that  the  bonds,  being  regularly  issued,  were 
not  vitiated  in  the  hands  of  bona  fide  hold- 
ers by  the  subsequent  agreement  to  sell 
them  at  a  great  discount.  Cairo  v.  Zane, 
149  U.  S.  122,  13  Sup.  Ct.  Kep.  803. 

A  New  York  statute  authorizing  towns  to 
subscribe  to  railroad  stock  required  an  affi- 
davit of  the  town  assessor  that  a  majority 
of  the  taxpayers  had  given  their  consent, 
and  provided  that  the  affidavit  should  be 
proof  of  the  fact  for  the  action  of  the  com- 
missioners in  making  the  subscription  and 
issuing  bonds.  Held,  that  a  town,  when 
sued  upon  the  bonds,  could  not  contradict 
any  of  the  statutory  facts  contained  in  the 
affidavit,  where  the  suit  was  by  bona  fide 
holders  of  the  bonds.  Irwin  v.  Ontario,  3 
Fed.  Rep.  49,  18  Blatchf,  (U.  S.)  259.— Dis- 
tinguishing Smith  V.  Ontario,  15  Blatchf. 
267.  Following  Phelps  v.  Lewiston,  15 
Blatchf.  131. 

Under  authority  of  law  a  township  voted 
to  subscribe  to  railroad  stock  and  to  issue 
its  bonds  in  payment;  and  the  various  pre- 
liminary steps  were  complied  with,  the 
bonds  issued  and  negotiated,  and  several 
years'  interest  paid,  when  the  county  treas- 
urer refused  to  pay  over  a  tax  to  pay  in- 
terest to  the  township  treasurer  on  the 
ground  that  the  road  was  not  located  per- 
manently through  the  township  until  after 
the  election  and  subscription.  Held,  that  it 
was  too  late  to  raise  such  an  objection. 
State  ex  rel.  v.  Van  Home,  7  Ohio  St.  327. 


I 


s 


699 


MUNICII'AL    AND    LOCAL   AID,  ao:i.354. 


If 


—  DisTiNc.uiSHF.n  in  Hopple  v.  Hiown  Tp  , 
13  Oliiu  St.  311.  Foi.i.owKi)  rs  State  ex 
rel.  7'.  Union  Tp.,  8  Ohio  St,  394. 

:i5:i.  Fniinl  iiimI  iiiiNt'oiidiict  of 
ottli*4*i'H  no  il«it'<'iiH«'.— County  bonds  reg- 
ular on  their  face  and  authorize*!  by  law  are 
valid  in  the  hands  of  hoitii  fide  holders  for 
value.  Proof  of  fraud  on  the  part  of  tlic 
railroad  10  which  they  were  issued,  and  that 
tiiey  were  nej^otiated  at  less  than  their  par 
value,  cannot  defeat  a  recovery.  Mercer 
County  V.  Hacketl,  1  Wall.  {U.  S.)  83.— 
DisAl'J'KOViNt;  Mercer  County  v.  Pittsburg 
&  E.  K.  Co.,  27  Pa.  .St.  389.  DiSTiNiiuiSH- 
IN(;  Diamond  ?'.  Lawrence  County,  37  Pa. 
St.  353.— DiSAi'i'ROVKD  IN  Marshall  County 
Sup'rs  V.  Cook,  38  III.  44.  Explainkd  in 
State  V.  Saline  County  Court,  48  Mo.  390. 
Followed  in  Mineral  Points.  Lee,  18  Law. 
Ed.  (U.  S.)  456;  Venice  v.  Murdock,  92  U. 
S.  494;  Ellsworth  V.  St.  Louis.  A.  &  T.  H. 
R.Co.,98N.  Y.  553. 

Bona  fide  purchasers,  before  maturity,  of 
municipal  bonds  cannot  be  prejudiced  by 
want  of  compliance  with  the  forms  of  law, 
or  fraud,  in  the  agents  intrusted  with  issu- 
ing them.  Grand  Chute  v.  Winegar,  15 
Wall.  (U.  5.)  355.— Followed  in  Kenicott 
V.  Wayne  County  Sup'rs,  16  Wall.  452.  Re- 
VIEWED  IN  Smith  V.  Clark  County,  54  Mo. 
\^.— Kenicott  v.  Wayne  County  Sup'rs,  16 
Wall.  ( U.  S.)  452, 4  Am.  Ry.  Rep.  93.— Fol- 
lowing Grand  Chute  v.  Winegar.  15  Wall. 
355;  Knox  County  Com'rs  v.  A.spinwall,  21 
How,  (U.S.)  539;  Gelpcke  v.  Dubuque,  i 
Wall.  203 ;  Moran  v.  Miami  County  Com'rs, 
2  Black  (U.  S.)  722  ;  Marsh  r*.  Fulton  County, 
10  Wall.  676. — Macon  County  v.  Shores,  97 
U.  S.  272.  Maxcy  v.  Wtlliamson  County,  72 
///.  207. 

The  possession  of  negotiable  bonds  carries 
with  It  the  title  to  the  holder,  and  where  the 
purchaser  of  such  paper  pays  a  full  con- 
.sideration,  the  facts  that  the  seller  was  an 
officer  of  the  railroad  which  issued  them, 
was  not  the  owner  of  the  bonds,  but  held 
tliem  merely  for  the  railroad  company,  and 
that  the  company  never  received  the  pro- 
ceeds of  the  sale,  will  not  afllect  the  position 
of  a  bona  fide  purchaser  for  value.  Indiana 
&*  I.  C.  R.  Co.  V.  Sprague,  2  Am.  &*  Eng. 
R.  Cas.  532,  103  U.  S.  7^6. 

Where  a  village  obtains  legislative  au- 
thority to  issue  bonds,  professedly  for  the 
purpose  of  making  public  improvements  in 
tlie  village,  but  with  intent  to  use  them  to 
secure  the  construction  of  a  railroad  through 


the  village,  and  such  bonds  pass  into  the 
hands  of  innocent  purchasers  for  value, 
equity  will  not  entertain  a  bill  by  the  cnni- 
mon  council  of  the  village  which  seeks  to 
have  such  bonds  declared  void,  hut  will 
leave  the  parties  where  it  finds  them.  Ced.ir 
.Springs  v.  Schlich,  81  iMich.  405.  45  A',  IT. 
Rep.  994. 

An  act  authorizing  counties  to  subscribe 
to  the  stock  of  a  railroad  and  i.ssue  negotia- 
ble bonds  in  payment  *'  ereof  provitlcd  that 
all  bonds  "issued  and  negotiated"  by  the 
commissioners,  "and  regular  on  the  face 
thereof,"  shall,  "  in  the  hands  of  any  bona 
fide  holders,  be  deemed  and  taken  in  all 
courts  and  elsewhere  as  conclusive  evidence 
of  the  regularity  of  everything  required  by 
this  act  preliminary  to  the  issue  and  negotia- 
tion "  of  the  bonds.  Held,  that  where  bonds 
regular  on  their  face  were  issued  and  deliv- 
ered to  the  company,  ostensibly  in  payment 
of  a  subscription  of  stock  and  for  the  pur- 
pose of  being  put  into  circulation,  and  were 
afterwards  put  into  circulation  and  passed 
into  the  hands  of  a  bona  fide  holder,  they 
must,  as  to  such  holder,  be  regarded  as 
issued  and  negotiated  within  the  meaning 
of  the  act;  and  that  the  payment  of  bonds, 
regular  on  their  face,  and  thus  issued  and 
negotiated,  and  in  the  hands  of  a  bona  fide 
holder,  cannot  be  disputed  on  the  ground 
of  a  fraudulent  combination  between  the 
railroad  company  and  county  commis- 
sioners to  make  a  formal  but  not  real  loca- 
tion of  the  railroad,  and  a  subscription, 
osteiisibly  for  the  benefit  of  that  company, 
but  really  for  the  benefit  of  another  com- 
pany, to  aid  which,  by  a  subscription  of  its 
capital  stock  or  by  a  loan  of  credit,  there 
was  no  legal  authority.  State  ex  rel.  v. 
Hancock  County  Com'rs,  12  Ohio  St.  596. 

354.  What  tlie  piircliuNer  may 
preNiime. — When  a  corporation  has  power 
under  any  circumstances  to  issue  negotiable 
securities,  a  bona  fide  holder  has  a  right  to 
presume  they  were  issued  under  circum- 
stances which  give  the  requisite  authority, 
and  they  are  no  more  liable  to  be  impeached 
for  any  infirmity  in  the  handsof  such  holder 
than  any  other  commercial  paper.  Gelpcke 
v.  Dubuque,  i  Wall.  (I/.  S.)  175.  Lexington 
v.  Butler.  14  Wail.  {I/.  S.)  282. 

Bona  fide  holders  will  be  held  to  a  knowl- 
edge of  the  law  authorizing  the  issue  of 
bonds  by  the  town,  but  they  will  not  be 
held,  in  the  absence  of  actual  notice,  to  in- 
quire into  the  fulfilment  of  all  the  formal 


:;!Sa 


w 


MUNICIPAL  AND   LOCAL  AID,  355, 350. 


«M 


prerequisites  to  the  issue.  The  i&smn^  of 
the  bonds  autliorizes  tlie  receiver  or  pur- 
chaser to  suppose  all  the  things  required  by 
law  to  have  been  done  in  the  time,  form, 
ami  substance  required  by  law.  J''/<ij,x  v. 
M,iyor.  ttc,  of  Palmyra,  33  Mo.  440. — 
yioiKU  IN  Smith  V.  Clark  County,  54  Mo. 
^^.—  Uv/o  V.  Forsythc  County  Com'rs,  76  N, 
Car.  489. 

'I'iie  record  of  a  proceeding  in  relation  to 
suliscribing  stock  to  a  railroad,  although 
awkwardly  drafted  and  ungrammatically 
oiiiposed,  which  contains  the  substantial 
matter  uf  the  proposition  to  subscribe,  the 
issue  of  bonds,  the  tax  to  meet  them,  the 
form  and  manner  of  vote  adopting  it,  is 
suUicieiit  to  protect  an  innocent  purchaser 
of  such  bonds ;  he  has  a  right  to  presume 
pro[)er  notice  from  such  record.  Clapp  v. 
Cedar  County,  5  Iffiva  1 5. 

It  constitutes  no  objection  to  a  recovery 
upon  a  bond  issued  by  a  county  to  a  rail- 
road company  that  the  record  does  not 
show  that  the  county  actually  subscribed 
for  the  stock;  such  fact  would  not  be  of 
record,  and  the  purch.iser  of  the  bond  may 
presume  it  from  the  fact  of  the  issue  of 
such  bond.     Clapp  v.  Cedar  County,  5  Iowa 

IS- 

355.  Duty  toiiiiiuirc. — Purchasers  of 
municipal  bonds  must  always  take  the  risk 
of  the  genuineness  of  the  official  signatures 
and  character  of  those  issuing  them.  So 
where  bonds  of  a  township  issued  to  a  rail- 
road were  dated  in  March,  and  signed  by 
one  as  presiding  justice  of  the  county  who 
did  not  come  into  office  until  the  following 
0(  tober — held,  that  a  purchaser  bought  at 
his  own  risk.  Anthony  v.  Jasper  County, 
101  U.  S.  693. 

One  who  buys  negotiable  municipal  se- 
curities from  litigating  parties,  with  actual 
notice  of  a  pending  suit  by  the  municipality 
to  test  their  validity,  does  so  at  his  peril, 
and  must  abide  the  result  of  the  litigation, 
the  same  as  parties  from  whom  he  buys. 
Under  such  circumstances  it  is  bad  faith  or 
wilful  ignorance  to  fail  to  make  further  in- 
quiry. Lytle  V.  Lansing,  147  U.  S.  59,  13 
Sttp.  Ct.  Rep.  254. 

Where  city  authorities  issue  bonds  in  aid 
of  a  railroad,  payable  to  bearer,  and  pay  in- 
terest thereon  for  several  years,  and  the  city 
elects  commissioners  to  hold  and  vote  the 
stock  in  the  railroad  company,  it  thereby 
affirms  their  validity,  and  a  bona  fide  holder 
need  not  make  further  inquiry.     Luling  v. 


Racine,  i  Hiss.  {I/.  S.)  314.  —  APPLVINO 
Knox  County  Com'rs  z/.  Aspinwall,  21  How. 
(U.  S.)  539. 

A  purchaser  of  municipal  bonds  is  bound 
to  ascertain  if  the  municipality  has  authority 
to  issue  them,  and  no  recital  contained  in 
the  bunds  can  cure  such  a  defect  as  an  utter 
want  of  power  in  the  municipality  to  exe- 
cute the  bonds.  CoJ^n  v.  Kearney  County 
Com'rs,  57  Fed.  Rep.  137.— Following  Dix- 
on County  V.  Field,  11 1  U.  S.  83,  4  Sup.  Ct. 
Rep.  315. 

As  a  general  rule,  no  person  can  acquire 
rights  under  a  void  instrument,  and  such  is 
the  case  with  forged  paper,  and  public  se- 
curities issued  without  authority.  If  county 
bonds  arc  issued  in  payment  of  a  subscrip- 
tion to  a  railway  company  without  authority 
of  law,  they  are  void,  and  an  innocent  pur- 
chaser before  their  maturity  acquires  no 
rights  under  them  to  be  protected.  Sucli 
purchaser  must  look  to  the  authority  under 
which  they  purport  to  have  been  issued. 
Gaddis  V.  Richland  County,  92  ///.  1 1 9. 

A  purchaser  of  nunicipal  bonds  issued 
for  stock  in  a  railroad  is  charged  not  only 
with  notice  of  the  law  under  which  they 
issued,  but  also  with  notice  of  the  construc- 
tion of  the  law  as  made  by  the  highest 
court  of  the  state  prior  to  the  issue  of  the 
bonds.  German  Sav.  Bank  v.  Franklin 
County,  128  U.  S.  526,  9  Sup.  Ct.  Rep.  159. 

A  purchaser  of  a  county  bond  issued  in 
payment  of  a  subscription  of  stock  to  a  rail- 
road company  is  not  obliged  to  look  behind 
the  county  records,  nor  is  he  bound  to  look 
to  it  that  such  records  are  true.  If  the 
records  show  sufficient  authority  for  its 
issue,  this  will  justify  htm  in  purchasing, 
and  he  may  recover  thereon.  Clapp  v.  Ce- 
dar County,  5  Iowa  1 5. 

A  purchaser  is  not  bound  to  look  beyond 
the  official  action  of  those  to  whom  the  law 
has  confided  the  authority  to  ascertain  and 
determine  whether  the  requirements  of  the 
law  necessary  to  the  loan  have  been  satis- 
fied in  the  vote  taken.  Mayor,  etc.,  of 
Vicksburg  v.  Lombard,  5 1  Miss.  ill. 

Persons  receiving  bonds  issued  by  towns 
are  presumed  to  know  the  law,  and  are 
bound  at  their  peril  to  ascertain  whether 
the  statute  authorizing  tiieir  creation  has 
been  complied  with.  Duanesburgh  v.  Jen- 
kins,  40  Barb.  (N.  Y.)  574. 

350.  What  will  put  piircliaser  on 
inquiry. — Where  bonds  purporting  to  have 
been  issued  by  a  county  contain  no  recitals 


t 

i 


694 


MUNICIPAL  AND   LOCAL  AID,  357. 


Ih'-l 


m 


of  an  election,  or  of  proceedings  and  orders 
of  tlie  county  board,  but  are  nai<ed  promises 
to  pay,  every  purchaser  and  holder  of  these 
securities  is  charj^eable  with  notice  of  what- 
ever appears  up(jii  the  face  of  the  county 
records.  If  in  such  case  it  appears  upon 
the  fac^  of  the  county  records  that  the  com- 
missioners had  no  authority  to  issue  the 
bonds,  the  county  may  avail  itself  of  that 
want  of  authority  as  a  defense  to  an  action 
even  of  a  b^nafide  holder.  Lewis  v.  Bour- 
bon County  Com'rs,  12  Kan.  186. — Quoting 
Marsii  V.  Fulton  County,  10  Wall.  (U.  S.) 
676 ;  Floyd  Acceptances,  7  Wall.  676 ;  Bis- 
sell  V.  Jeflfersonviile,  24  How.  (U.  S.)  287 ; 
Clarlv  w.  Des  Moines,  19  Iowa  199;  Gould 
V.  Sterling,  23  N.  Y.  456. 

Where  a  municipal  corporation  issues  its 
bonds  to  a  corporation  the  corporate  name 
of  which  indicates  that  it  is  organized  for 
manufacturing  purposes,  purchasers  of  such 
bonds  must  take  notice  whether  the  cor- 
poration is  organized  for  such  pi.rpose  so 
as  to  be  a  private  corporation  and  not  au- 
thorized to  receive  such  bonds.  Central 
Branch  U.  P.  R.  Co.  v.  Smith,  23  Kan.  745. 

Where  a  statute  limits  the  rate  of  taxa- 
tion tliat  may  be  imposed  to  pay  county 
bonds,  one  who  takes  such  bonds  is  charge- 
able with  knowledge  of  the  limitation,  and 
the  county  court  cannot  be  compelled  to 
appropriate  other  funds  to  the  payment  of 
such  bonds,  though  the  specific  fund  pro- 
vided for  is  inadequate,  and  the  bonds  have 
been  reduced  '  judgment.  State  ex  rel.  v. 
Macon  County  Court,  68  Mo.  29.  — REVIEW- 
ING Campbell  v.  Polk  County,  49  Mo.  214; 
Pettis  County  v.  Kingsbury,  17  Mo.  479; 
Kingsberry  v.  Pettis  County,  48  Mo.  208. 

Where  municipal  bonds  are  issued  in  aid 
of  a  railroad,  under  a  statute  providing  that 
they  shall  not  be  sold  for  less  than  par,  and 
the  bonds  on  their  face  refer  to  the  statute, 
a  purchaser  thereof  is  charged  with  notice, 
and  the  rule  of  commercial  law  protecting 
innocent  purchasers  of  negotiable  paper  does 
not  apply.  Armstrong  County  v.  Brinton, 
47  Pa.  St.  367. 

Where  coupon  bonds,  issued  under  the 
provisions  of  an  act  of  assembly  by  a  mu- 
nicipal corporation  for  stock  in  a  railroad 
company,  are  in  the  possession  of  the  presi- 
dent, and  the  fact  that  he  is  the  president 
of  the  company  is  shown  by  the  bonds  them- 
selves, his  possession  is //•/;«<»/■««>  evidence 
that  they  belong  to  the  company,  and  con- 
structive notice  of  their  title  to  one  about 


to  take  them  as  collateral  security  for  a 
private  debt  owed  by  the  president.  Tiie 
fact  that  time  for  the  payment  of  such  debt 
is  given  in  consideration  of  the  transfer  of 
such  bonds  as  collateral  security  is  imma- 
terial where  the  creditor  has  constructive 
notice  of  the  company's  title.  The  giving 
of  time  cannot  divest  or  impair  the  title  of 
the  company.  Pittsburgh  <S«»  C.  li.  Co.  v. 
Garrard,  i  Pittsb.  {Pa.)  378. 

The  mere  fact  that  interest  coupons  upon 
municipal  bonds  are  overdue  and  unpaid  is 
not  of  itself  sufficient  to  dishonor  tiie 
bonds,  which  are,  under  the  commercial  law, 
negotiable  paper,  or  to  charge  a  purchaser 
with  notice  of  any  defenses  to  the  payment 
of  the  bonds,  and  especially  where  the  pay- 
ment of  the  coupons  had  been  enjoined,  but 
which  had  been  finally  dissolved.  Preble  v. 
Portage  County  Sup'rs,  8  Biss.  (U.  S.)  358. 

357.  Wliere  issue  was  unauthor- 
ized, purchaser  takes  subject  to 
equities. — Where  municipal  bonds  issue 
to  a  railroad  without  authority,  subsequent 
purchasers  cannot  claim  protection  on  the 
ground  that  they  are  innocent  purchasers 
without  notice.  The  protection  given  to 
holders  of  negotiable  paper  cannot  cover  a 
lack  of  authority  to  issue  the  paper.  Marsh 
V.  Pulton  County,  10  Wall.  (U.  S.)  676.— 
Followed  in  Kenicott  v.  Wayne  County 
Sup'rs,  16  Wall.  (U.  S.)  452;  Thomas  ?'. 
Lansing,  14  Fed.  Rep.  618,.  21  Blatchf.  (U. 
S.)  119.  Quoted  in  Stater/.  Little  Rock, 
M.  R.  &  T.  R.  Co..  3!  Ark.  701  ;  Lewis  v. 
Bourbon  County  Com'rs,  12  Kan.  186. — 
Pana  v.  Lippincott,  2  ///.  App.  466. 

There  can  be  no  estoppel  in  ascertaining 
the  existence  of  a  law.  So  one  suing  on 
municipal  bonds  issued  for  railroad  stock 
cannot  insist  that  he  is  a  bona  fide  holder, 
and  therefore  the  town  issuing  the  bonds  is 
estopped  from  showing  that  the  law  under 
which  they  issued  was  void  for  no:;  being 
entered  on  the  senate  journal.  South  Otta- 
wa V.  Perkins,  94  U.  S.  260. 

A  bona  fide  holder  for  value  of  municipal 
bonds  issued  in  aid  of  a  railroad  is  protected 
against  irregularities,  or  even  fraud,  or  an 
unfounded  assumption  of  authority  on  the 
part  of  the  officers  or  agents  charged  with 
the  duty  of  issuing  them,  but  not  against 
an  entire  want  of  authority  to  issue  them. 
Dallas  County  v.  MacKemie,  94  U.  S.  f>6o. 

A  statute  of  Missouri  (Laws  of  1872,  p. 
56)  provided  that  "  before  any  bond  here- 
after issued  by  any  county  shall  obtain  valid. 


MUNICIPAL   AND   LOCAL   AID,  352, 360. 


695 


ity  or  be  negotiated  "  it  must  be  first  reg- 
istered by  tiie  state  auditor,  who  shall  certify 
thereon  that  all  conditions  precedent  re- 
quired by  law,  and  by  the  contract  under 
which  the  bonds  were  issued,  liave  been 
complied  with.  Subsequent  to  the  passage 
of  this  statute  certain  bonds  were  issued 
by  a  county  court  to  a  railway  company, 
the  company  not  having  fully  complied  with 
the  conditions  upon  which  the  issue  of  the 
bonds  had  been  authorized  by  a  vote  of  the 
people.  In  order  to  evade  the  statute  the 
bonds  were  antedated  to  a  date  prior  to  the 
passage  of  the  act.  Held,  that  they  were 
void  even  in  the  hands  of  an  innocent 
holder,  and  that  the  coutity  was  not  es- 
topped to  set  up  this  defense.  Anthony  v 
Jasper  County,  4  Dill.  {U.  S.)  136. 

358.  Notice  of  equities  or  fraud.— 
Where  a  purchaser  of  bonds  has  notice  that 
the  bonds  had  been  the  subject  of  litigation, 
and  that  his  vendor  held  $192,000  of  them 
with  ten  years'  unpaid  interest  at  eight  per 
cent,  for  a  debt  of  §40,000,  he  cannot  be 
deemed  a  bona  fide  holder  thereof.  Trask 
V.Jacksonville,  P.  &^  M.  A\  Co.,  124  (/.  S. 
515,8  5k/.  a.  /^ep.  574. 

A  town  voted  to  subscribe  to  railroad 
stock  and  to  issue  its  bonds  payable  in 
twenty  years,  with  the  option  to  pay  them 
in  ten  years.  By  mistake  the  bonds  were 
printed  without  the  option  clause,  and  were 
signed  by  the  town  officers  without  noticing 
the  error,  and  in  that  form  they  were  nego- 
tiated. Held,  that  purchasers  with  full 
knowledge  of  the  facts  could  not  contest  a 
suit  by  the  town  to  reform  the  bonds,  and  a 
delay  of  two  years,  after  the  ten  years  had 
expired,  in  instituting  the  suit  would  not 
alter  the  case.  (Park,  C.J. ,  and  Carpenter, 
J.,  dissenting.}     Essex  v.  Day,  5.1  Conn.  483. 

A  purchaser  of  town  bonds  issued  in  New 
York  in  ai''  of  a  railroad,  who  has  notice 
that  they  v  re  exchanged  for  stock  of  the 
company,  in  violation  of  the  statute  under 
which  they  issued,  which  directs  that  they 
sliall  be  sold  at  par  for  cash,  is  not  a  />ona 
fide  liolder,  and  cannot  enforce  payment 
against  the  town,  but  the  legislature  by  sub- 
sequent act  may  ratify  and  legalize  the  same. 
Thompson  v.  Perrine,  3  Am.  Sf'  Jini(.  R.  Cas, 
140,  103  v.  S.  806.— Approving  People  ex 
rel.  V.  Batchellor,  53  N.  Y.  131.  Disapprov- 
ing Horton  v.  Thompson,  71  N,  Y.  520. 
Following  Scipio  v.  Wright,  loi  U.  S. 
676. 

Certain  railroad  bonds  were  fraudulently 


issued  by  means  of  a  covinous  coHspiracy 
formed  between  two  of  the  justices  of  the 
county  court,  the  prosecuting  attorney,  and 
others,  and  upon  a  division  of  the  bonds 
one  of  the  conspirators  received  $55,000 
thereof,  whicli,iwi)  days  thereafter,  he  sold 
to  a  banking  firm,  under  circumstances 
which  showed  that  the  firm,  as  well  as  G., 
who  afterwards  bought  them  of  the  firm, 
had  such  notice  of  the  fraud  perpetrated 
as  should  have  forbidden  purchase.  In  an 
action  by  the  county  against  G.,  to  enjoin 
sale  and  cancel  the  bonds — held:  (i)  that, 
although  the  evidence  of  such  knowledge 
was  not  of  a  direct,  positive  character,  it 
was  sufficient  if  it  established  the  fact  of 
knowledge  by  reasonable  inferences  deduced 
from  facts  which  were  proven  ;  (2)  that,  al- 
though primarily  the  presumption  favors  the 
holder  of  paper  acquired  before  maturity, 
such  presumption  must  dwindle  into  insig- 
nificance under  the  circumstances  of  this 
case;  (3)  that,  the  bonds  having  been  fraud- 
ulently issued,  tlie  burden  of  showing  that 
they  were  acquired  in  good  faith  devolved 
on  the  defendant ;  (4)  that,  the  banking  firm, 
as  well  as  G.,  being  chargeable  with  notice, 
G.  could  not  successfully  invoke  the  doctrine 
which  permits  even  a  purcliaser  with  notice 
to  purchase  from  one  without  notice;  (5)tl)at 
the  presumption  arising  from  the  fact  that 
G.,  although  conducting  the  trial  and  hav- 
ing his  own  deposition  read  tiiereat,  failed 
to  explain  certain  statements  tending  to 
prove  his  lack  of  good  faith  derived  addi- 
tional strength  in  the  form  of  procedure  and 
tlie  nature  and  organization  of  the  court 
wherein  the  bona  fides  of  the  transaction  was 
questioned  ;  (6)  that,  as  one  to  wlioni  G.,  tiie 
next  day  after  the  injunction  Wtis  served 
upon  him.  had  transfer!  ed  tlie  bonds  was  not 
complaining,  G.  would  not  be  heard  vicari- 
ously to  complain  ;  (7)  that  the  bonds,  al- 
though invalid,  being  apparently  good,  G.'s 
concealment  of  them  and  threat  to  transfer 
them  constituted  a  ground  for  jquitable  in- 
terference, analogous  to  that  for  removal  of 
a  cloud  on  title.  Cass  County  v.  Green,  66 
Mo.  498. 

351>.  Noii-iiicor|ioratioii  ot  town 
i.ssiiiii;;  tiie  boiulM.  — .\  town  cannot  set 
up  as  a  defense  to  an  action  by  bona  fide 
holders  of  bonds  which  it  has  issued  that  it 
was  not  duly  incorpoiated  wlien  tliey  were 
issued,  where  it  acted  as  a  corporation  in 
issuing  the  bonds,  and  h;is  continued  so  to 
act.     Aller  v.  Cameron,  3  Dill.  {U.  S.)  198. 


'  ■*). 


t 

i 


M 


696 


MUNICIPAL  AND   LOCAL  AID,  360-363. 


i^^Bfft 


m 


ill 


300.  Iiicnpncity  of  railway  com- 
pany to  contract. —  Where  a  railroad 
company  is  a  iiV  facto  corporation  at  tiie 
time  tiie  county  issues  its  bonds  to  it,  it  is 
no  defense  lliat  the  company  did  not  organ- 
ize within  the  time  fixed  by  its  charter. 
Macon  County  v.  Shores,  97  U,  S.  272. — FoL- 
i.owKu  IN  Dallas  County  ?'.  Huidekoper,  25 
Law.  Ed.  (U.  S.)  974 ;  Kails  County  v.  Doug- 
lass, 105  U.  S.  728. — Darliiif^ton  v.  LaClede 
LoHiity,  4  Dill.  (U.  S.)  200.  Kails  County  v. 
JX>ui;lass,  7  Am.  &^  Eng.  R.  Cas.  212,  105 
U.  S.  728.  —  Following  State  Bank  v. 
Merchants*  Bank,  10  Mo.  123;  Kayser  v. 
Bremen,  )6Mo.  88  ;  Smith  v.  Clark  County, 
54  Mo.  58  ;  St.  Louis  v.  Shields,  62  Mo.  247 ; 
Macon  County  v.  Shores,  97  U.  S.  277. — 
Followed  in  Green  County  v.  Conness, 
109  U.  S.  104. 

Where  the  people  of  a  county  vote  in  fa- 
vor of  a  subscription  to  railroad  stock,  and 
the  county  court  makes  the  subscription  and 
issues  county  bonds,  and  continues  to  exer- 
cise the  rights  of  a  stockholder  after  the 
road  is  built,  such  bonds  are  not  invalid  in. 
the  hands  of  bona  fide  holders  for  value  be- 
cause the  company  was  not  created  accord- 
inji|  to  law  at  the  time  of  tiie  election.  Da- 
viess County  V.  Huidekoper,  98  U.  S.  98. 

Where  a  town  has  authority  for  issuing 
its  bonds  to  a  railroad  as  a  donation  or  sub- 
scription, and  the  bonds  are  executed  in 
proper  forni  and  made  payable  to  the  proper 
company,  but  are  delivered  to  the  secretary 
of  a  new  company,  and  there  is  nothing  per- 
taining to  them,  or  which  could  have  been 
ascertained  from  the  record,  indicating  their 
delivery  to  one  not  entitled  to  receive  them, 
the  bonds  cannot  be  held  invalid  by  reason 
of  such  delivery  after  tiiey  have  passed  into 
the  hands  of  innocent  holders.  Prairie  v. 
Lloyd,  3  Am.  <S-  F.ng.  R.  Cas.  58,  97  ///. 
179. 

361.  Subsequent  insolvency  and 
disHolntion  of  railway  company.— 
The  fact  that  a  railroad  company  subsequent 
to  the  issue  of  county  bonds  to  it  and  its  ne- 
goiiation  tiiereof  lias  become  insolvent  and 
tlien  dissolved  will  constitute  no  defense  to 
an  action  by  an  innocent  indorsee  of  such 
bonds.     CLipp  v.  Cedar  County,  5  Iowa  1 5. 

'MVl.  Violation  of  c«»ii(litionN  pre- 
cedent to  lawful  issue.  —  Where  a 
county  has  authority  to  issue  bonds  in  aid 
of  a  railroad,  and  they  as  issued  recite  that 
they  were  issued  in  pursuance  of  law,  bona 
fide  holders,  without  notice  that  certain  con- 


ditions precedent  have  not  been  complied 
with,  are  not  affected  thereby.  Mobile  Sav. 
Bank  v.  Oktibbeha  County  Sup'rs,  24  Fed. 
Rep.  1 10, 

If  a  county  in  its  contract  for  issuing 
bonds  imposes  conditions  other  than  those 
fixed  by  the  legislature  which  are  to  be 
complied  with  by  the  railroad  company  be- 
fore the  bonds  are  to  be  delivered,  it  cannot 
assert,  as  against  an  innocent  holder  of  such 
bonds,  that  its  officer  charged  with  the  duty 
of  passing  upon  the  fulfilment  of  the  condi- 
tions and  of  delivering  the  bonds  issued 
them  without  the  conditions  being  complied 
with.  Nelson  v.  Haywood  County,  38  Am.  6«» 
Etig.R.  Cas.  620,87  Tenn.  781,  11  5.  W.  Rep. 
885. 

A  special  act  authorized  a  county  to  sub- 
scribe to  the  stock  of  any  railroad  if  a  ma- 
jority of  its  taxpayers  should  vote  therefor. 
Subsequently  a  railroad  charter  authorized 
it  to  receive  subscriptions  to  stock  without  a 
vote,  and  a  subscription  was  made  by  the 
county,  the  bonds  reciting  that  they  were 
issued  by  authority  of  the  company's  char- 
ter. Held,  that  the  legislature  had  the 
power  to  except  the  company  from  the  pro- 
visions of  the  special  act,  and  the  bonds 
were  valid  in  the  hands  of  innocent  pur- 
chasers without  the  vote  as  a  condition 
precedent  to  the  right  to  issue  them,  as  re- 
quired by  the  special  act.  Burr  v.  Chariton 
County,  2  McCrary  {(/.  S.)  603,  12  Fed.  Rep. 
848. 

Bonds  having  passed  into  the  hands  of 
innocent  holders,  it  is  enough  if  the  power 
to  issue  them  existed  either  under  the  char- 
ter or  special  act.  The  question  whether 
the  statute  has  been  complied  with  is  for 
the  authorities  of  the  county  to  determine. 
Burr  v.  Chariton  County,  2  McCrary  ( (/.  S.) 
603,  1 2  Fed.  Rep.  848. 

303.  Issue  ill  excess  of  authority 
or  for  unauthorized  amount. — The 
fact  that  city  authorities  transcend  their 
delegated  powers,  in  issuing  bonds  and  cou- 
pons without  having  obtained  the  assent  of 
the  required  number  cf  voters,  does  not 
affect  the  validity  of  the  bonds  in  the  hands 
o(  bona  fide  holders  for  value,  as  they  have 
a  right  to  presume  that  every  condition  pre- 
cedent to  the  issuance  of  the  bonds  has  been 
complied  with.  San  Antonio  v.  Lane,  32 
Tex.  405. 

Judgment  bonds  of  a  county  cannot  be 
defeated  in  the  hands  of  innocent  holders 
for  value  without  notice   by  showing  that 


MUNICIPAL  AND   LOCAL  AID,  364, 365. 


69'; 


the  judgments  were  rendered  upon  warrants 
issued  in  excess  of  a  constitutional  limita- 
tion, and  that  tlic  supervisors  fraudulently 
omitted  to  interpose  the  defense  when  the 
warrants  were  sued.  Sioux  City  &•  5/..  P. 
A\  Co.  V.  Osceola  County,  45  Iowa  168. — 
Followed  in  Sioux  City  &  St.  P.  R.  Co. 
V.  Osceola  County,  52  Iowa  26. — Sioux 
City  iS"  St.  P.  R.  Co.  v.  Osceola  County,  52 
lo^U'.i  26.  2  N.  W.  Rep.  593.  — Following 
Sioux  City  &  St.  P.  R.  Qo.v.  Osceola  Coun- 
ty, 45  Iowa  168. 

Town  bonds  issued  in  Kansas  in  aid  of  a 
railroad,  under  the  acts  of  Feb.  25, 1870,  and 
March  2,  1872,  are  valid  in  the  hands  of 
bona  fide  holders  for  value  without  notice  of 
the  fact  that  the  amount  of  the  bonds  issued 
bore  a  greater  proportion  to  the  taxable 
property  of  the  town  than  was  authorized 
by  said  acts.  Wilson  v.  Salamanca  Tp.,  99 
U.  S.  499.— Following  Marcy  v.  Oswego 
Tp.,  92  U.  S.  637.— Followed  in  Dallas 
County  V.  McKenzie,  1 10  U.  S.  686. 

Under  the  law  of  New  Jersey  a  purchaser 
of  negotiable  municipal  railroad  bonds  may 
rely  on  the  decision  of  commissioners  ap- 
pointed to  issue  them  that  no  more  were 
issued  than  allowed  by  law,  and  an  over- 
issue in  the  hands  of  purchasers  can  be  col- 
lected. New  Providence  v.  Halsey,  117  U. 
S.  336,  6  Sup.  Ct.  Rep.  764. 

The  purchasers  of  bonds  issued  by  munic- 
ipalities under  authority  of  laws  which  limit 
the  amount  of  bonds  to  be  issued  to  a  cer- 
tain percentage  of  the  assessment  rolls,  or 
to  a  given  rate  of  taxation  based  on  such 
rolls,  are  charged  with  notice  of  the  assess- 
ment rolls,  and  of  the  amount  of  bonds 
which  can  be  validly  issued  based  on  such 
assessment.  So  where  one  buys  at  one  pur- 
ciiase  more  bonds  than  were  authorized  by 
statute,  he  is  chargeable  with  notice,  and 
the  municipality  issuing  them  is  not  es- 
topped from  pleading  an  overissue.  Fran- 
cis V.  //award  County,  54  Fed.  Rep.  487 ; 
affirming  50  Fed.  Rep.  44. 

304.  Sale  of  bonds  at  less  than  par. 
— The  fact  that  a  railroad  negotiated  mu- 
nicipal bonds  issued  to  it  at  less  than  par, 
contrary  to  the  statute  authorizing  them, 
will  not  defeat  a  recovery  by  a  subsequent 
holder.  /Richardson  v.  I^nivrence  Cottnty,  \^ 
Law.  F.d.  (U.  S.)  558. — Following  Woods 
7>.  Lawrence  County,  i  IJlack  (U.  S.)  386. 

But  the  county  may,  by  proceeding  in 
equity,  compel  the  holder  to  receive,  in  sat- 
isfaction of  the  bonds,  the  sum  paid  by  the 


first  purchaser,  with  interest  thereon.   Arm- 
strong County  V.  Brinton,  47  Pa.  St.  367. 

365.  Pendency  of  litit^ration  re- 
speetinf;  the  bonds.— The  facts  that  a 
suit  is  pending  to  restrain  a  transfer  of  coun- 
ty bonds  in  aid  of  a  railway,  and  a  decree 
therein  directing  them  to  be  delivered  up 
to  be  canceled,  are  not  binding  upon  a  bona 
fide  holder  of  bonds  for  value  without  no- 
tice ;  but  if  he  has  actual  knowledge  of  the 
litigation  when  he  becomes  a  purchaser,  he 
is  concluded  by  the  decree.  Durant  v, 
Iowa  County,  Woolw.  {U.  S.)  69.  Macon 
County  V.  S/iores,  97  U.  S.  272.  Cass  County 
v.  Gillctt,  100  U.  S.  585. — Following  War- 
ren County  V.  Marcy,  97  U.  S.  107. — Scotia,  d 
County  V.  Hill,  112  I/.  S.  183,  5  Sup.  Ct.  /iep. 
93.— Distinguishing  Scotland  County  v. 
Thomas,  94  U.  S.  682.  Following  War- 
ren County  V.  Marcy,  97  U.  S.  96.— Fol- 
lowed IN  Hill  V.  Scotland  County,  34  Fed. 
Rep.  2oZ.—P/telps  v.  Lewiston,  15  Blatc/tf. 
{U.  S.)  131.  //ill  V.  Scotland  County,  34 
Fed.  Rep.  208.— FOLLOWING  Scotland  Coun- 
ty V.  Thomas.  94  U.  S.  682 ;  Scotland  Coun- 
ty z/.  Hill,  112  U.  S.  185.  sSup.  Ct.  Rep.  93; 
Warren  County  v.  Marcy,  97  U.  S.  96. 

The  holder  of  municipal  bonds  issued  in 
aid  of  a  railroad  is  not  bound  by  a  decree 
declaring  the  bonds  void  where  he  is  not 
served  with  process,  does  not  appear,  and 
the  only  effort  at  service  is  a  published  no- 
tice addressed  to  the  "  unknown  owners  and 
holders"  of  the  bonds.  Empire  Tp.  v. 
Darlington,  \o\  U.  S.  87.  Carroll  County  v. 
Smitli,  1 5  Am.  6-  Eng.  R.  Cas.  606,  ii i  i^. 
S.  556,  4  Sup.  Ct.  Rep.  539. 

Where  a  decree  is  rendered  enjoining  the 
collection  of  taxes  to  pay  interest  accruing 
on  municipal  bonds,  the  bondholders  not 
being  made  parties,  such  decree  is  not  con- 
clusive against  a  bondholder,  or  res  judicata 
as  to  him ;  but  it  does  not  follow  that  such 
party  may  ignore  such  decree,  and  require 
the  collector  to  collect  the  tax,  in  violation 
of  the  injunction.  If  the  bondholder  can 
show  that  the  bonds  are  valid,  he  may  file 
a  bill  of  review  making  the  parties  to  the 
former  proceeding  defendants,  challenging 
that  decree  upon  the  ground  that  he  was  not 
a  party  thereto,  and  have  the  question  of 
the  validity  of  the  bonds  adjudged  de  no7'o. 
Mail  V.  Maxwell,  107  ///.  554. 

The  pendency  of  a  suit  between  a  county 
and  a  railroad  company  in  regard  to  bonds 
issued  by  the  county  in  payment  of  its 
subscription  to  the  stock  of  the  company 


ft 
I 

s 


m 


698 


MUNICIPAL  AND   LOCAL   AID,  36G-36tf. 


ii 


is  notice  to  all  the  world  of  the  facts  alleged 
in  the  pleadings  therein.  The  purchaser  of 
such  a  bond  from  the  company  pendente  lite 
and  all  subsequent  purchasers  are  affected 
by  the  decree  of  the  court  in  the  suit  pend- 
ing at  the  time  of  the  purchase.  Diamond 
V.  I^iwrence  County,  37  Pa.  St.  353. 

3UO.  Contracts  and  ney^utiatioii.s 
between  tliirU  parties  do  not  att'ect 
the  imrcliaser. — A  contract  between  a 
company  and  a  county  that  the  former 
sliouid  pay  the  interest  on  bonds  until  the 
road  should  be  completed  does  not  affect 
the  holder  of  the  bonds,  nor  prevent  him 
from  recovering  interest  from  the  county. 
Com.  ex  rel.  v.  Allegheny  County  Coin'rs,  37 
Pa.  St.  237.  Cotn.  ex  rel.  v.  Pittsburgh,  34 
Pa.  St.  496.  Com.  ex  rel.  v.  Perkins,  43  Pa. 
St.  400. 

Bonds  issued  by  a  township  in  aid  of  a 
railroad  were,  by  their  terms,  payable  to  the 
company  or  its  assignees,  and  a  stipulation 
was  added  reserving  to  the  township  the 
right  to  require  the  company  to  take  the 
stock  subscribed  by  the  township,  and  to  re- 
deem the  bonds  so  issued.  Held,  that  this 
reservation  was  a  contract  between  the 
township  and  company  alone,  which  could 
not  affect  the  right  of  a  iona  fide  assignee  of 
the  bonds  for  value  to  require  payment  of 
the  bonds  by  the  township.  State  ex  rel.  v. 
Goshen  Tp.,  \i,  Ohio  St.  569. 

3«7.  Nor  will  letters  and  declai-a- 
tions  of  third  i>artie.s  affect  liinA.— 
Letters  written  by  third  oarties  who  are 
charged  as  forming  "  a  ring  "  by  which  a 
county  was  defrauded  of  its  bonds,  or  of 
the  proceeds,  none  of  them  being  written  by 
the  bondholders,  but  by  various  persons 
who  had  some  connection  with  the  bonds  or 
their  negotiation,  are  not  binding  on  bona 
fide  bondholders  unless  some  connection  is 
shown  between  them  and  the  letters.  Ken- 
nitott  V.  Wayne  County  Sup'rs,  6  Biss.  ( U.  S.) 

138. 

What  third  parties,  who  represented 
themselves  as  agents  of  the  company,  said, 
such  as  assurances  that  the  road  would  be 
built,  as  an  inducement  to  a  county  to  issue 
its  bonds  is  not  admissible  in  evidence 
nfru'mst  a.  bona  fide  purchaser  of  the  bonds. 
Wh  if  taker  v.  Johnson  County,  10  loiva  i6r. 

3C(8.  Presumption  tliat  holder  is  a 
bona  fide  purclia.scr. — Where  municipal 
bonds  are  purchased  in  the  market,  it  is  pre- 
sumed that  the  purchase  was  before  the 
bonds  were  due,  and  that  a  valuable  consid- 


eration was  paid,  and  that  the  purchaser 
had  no  notice  of  defects  or  irregularities 
attending  their  issue  which  would  render 
them  invalid.  Lexington  v.  Butler,  14  Wall. 
(U.  S.)  282.— Followed  in  Moultrie  Coun- 
ty V.  Fairfield,  105  U.  S.  370.  Quoted  in 
Smith  V.  Clark  County,  54  Mo.  58. 

In  a  suit  on  municipal  bonds  issued  in  aid 
of  a  railroad,  if  the  execution  of  the  bonds 
he  not  put  in  issue,  the  production  of  the 
bonds,  being  regular  on  their  face,  estab- 
lishes plaintiff's  case,  and  raises  a  presump- 
tion that  he  is  a  holder  for  value  before  ma- 
turity, without  notice.  Chambers  County  v. 
Clews,  21  Wall.  {U.  S.)  317.  Kennicott  v. 
Wayne  County  Sup'rs,  6  Biss.  ( U.  S.)  1 30. 

It  is  a  presumption  of  law  that  a  holder 
of  municipal  bonds  issued  for  railroad  stock 
is  the  bona  fide  owner,  but  where  this  is 
made  an  issue  in  the  pleadings  the  plaintiff 
has  a  right  to  meet  it  by  direct  affirmative 
proof.  Macon  County  v.  Shores,  97  U.  S. 
272. 

300.  Who  is  not  deemed  a  bona 
fide  purchaser. — Where  a  city  is  author- 
ized to  subscribe  to  railroad  stock  and  to  is- 
sue its  bonds,  the  proceeds  of  which  shall 
be  expended  in  the  county,  and  the  bonds 
are  issued  upon  a  guaranty  that  the  pro- 
ceeds shall  be  so  expended,  but  are  not,  as 
between  the  city  and  the  company  or  its 
assignee,  the  bonds  cannot  be  enforced. 
And  the  same  rule  applies  to  one  who  pur- 
chases the  bonds  at  a  foreclosure  sale  of 
the  property  of  the  company.  Poote  v. 
Mount  Pleasant,  i  McCrary  {U.S.)  loi. 

Kan.  Act  of  1872,  ch.  68,  g  11,  requires 
municipal  officers  subscribing  to  a  work  of 
internal  improvement  upon  the  issuance  of 
the  bonds  to  deliver  the  same,  together 
with  the  original  or  a  copy  of  the  subscrip- 
tion, to  the  state  treasurer,  to  be  held  by 
him  in  escrow  until  the  conditions  in  the 
terms  of  the  subscription  are  complied  with. 
Held,  that  the  object  of  the  law  is  to  pro- 
tect taxpayers  against  an  issue  of  bonds 
without  a  compliance  with  the  conditions 
required;  and  it  is,  therefore,  competent 
for  the  legislature  to  make  the  negotiability 
of  such  bonds  depend  upon  their  delivery 
by  the  state  treasurer.  Lewis  v.  Barbour 
County Com'rs,  i  McCrary  {U.  S.)  458. 

And  a  purchaser  of  such  bonds,  which 
show  upon  their  face  that  they  were  issued 
under  such  statute,  cannot  claim  to  be  a 
bona  fide  purchaser  without  notice  where 
they  were  fraudulently  issued  without  ever 


MUNICIPAL  AND   LOCAL  AID,  370-376. 


699 


being  delivered  to  the  state  treasurer.  Lnvis 
V.  Harbour  County  Coin'rs,  i  McCrary  {U. 
S.)  458. 

370.  When  liuUler  iiiiiMt  hIiuw  a 
IMircliiise  ill  gootl  faith.— Where  such 
fraud  or  illegality  in  the  making  of  mu- 
nici|)al  bonds  issued  in  aid  of  a  railroad 
as  to  render  them  void  between  the  original 
holders  is  shown,  an  indorser  ciinnot  recover 
unless  he  shows  that  he  or  some  inter- 
mediate purchaser  is  a  bona  fide  holder. 
Stf7vart  V.  Lansing,  7  Am.  &*  I'-ng.  A'.  Cas. 
225,  104  (/,  S.  505. — Following  Smith  v. 
Sac  County,  11  Wall.  (U.  S.)  147.— Ly//e  v. 
Lansing,  147  I/.  S.  59,  13  Sup.  Ct.  Kep.  254. 

The  holder  of  a  negotiable  municipal 
railroad  security  is  presumed  to  have  ac- 
quired it  in  good  faith  and  for  value ;  but  If, 
in  a  suit  upon  it,  the  defense  be  such  as  to 
require  plaintiff  to  show  that  value  was  paid, 
it  is  not  always  essential  to  prove  that  he 
paid  value,  for  if  any  intermediate  holder 
bciweeii  him  and  the  defendant  gave  value, 
such  intervening  consideration  will  sustain 
his  title.  Montclair  Tp.  v.  Ramsdell,  107 
U.  S.  147.  2  Sup.  Ct.  Rep.  391. 

371.  Tlie  N<'W  York  rule.— Bonds 
issued  by  commissioners  under  the  pro- 
visions of  the  acts  authorizing  towns  to 
bond  themselves  to  aid  in  the  construction 
of  railroads  must  be  conformable  to  the 
law,  or  they  are  invalid,  and  cannot  be  col- 
lected of  the  town,  and  the  holder  is  charged 
witii  knowledge  of  any  defects.  There  is 
no  such  thing  as  a  bona  fide  holder  of  such 
bonds.  Jiro7vnell  v.  Grcenioich,  44  Hun  61 1, 
8  .V.  Y.  S.  R.  737;  affirmed  in  114  iV.  Y. 
518,  24  N.  Y.  S.  R.  6,  22  .V.  E.  Rep.  24. 
Cagiuin  v.  Hancock,  5  Am.  <&>•  Eng.  R.  Cas. 
150,  84  N.  Y.  532;  reversing  22  Hun  201. 
— Applied  in  Lyons  v.  Chamberlain,  89  N. 
Y.  578. 

.\  county  judge  acting  under  the  New 
York  statute  appointed  commissioners  to 
make  a  town  sub«v;ription  to  railroad  stock 
and  to  execute  bonds  therefor.  Before  the 
bonds  were  delivered  to  the  company  the 
proceeding  was  removed  on  certiorari  to  the 
sui)rcme  court,  where  the  proceeding  was 
reversed  and  set  aside.  At  the  time  the 
commissioners  issued  and  delivered  the 
bonds  to  tiie  company  both  they  and  the 
company  had  full  knowledge  of  the  writ  of 
certiorari,  and  the  commissioners  took  an 
indemnity  bond  from  the  company.  Sub- 
sequently an  action  was  commenced  against 
a  transferee  of  the  bonds  to  compel  their 


surrender  and  cancellation.  He/d,  that  the 
burden  was  on  the  defendant  to  show  that 
either  he  or  some  one  under  whom  he 
claimed  was  a  bona  fide  holder  for  value. 
Lansing  v.  Lytle,  38  Fed,  Rep.  204. 

372.  Piii'chaHe  of  boiuLs  aft«r  ma- 
turity.— Municipal  bonds  unpaid  at  ma- 
turity are  dishonored  like  other  commer- 
cial paper,  and  a  purchaser  after  maturity 
holds  them  subject  to  all  defects  which 
would  invalidate  them  in  the  hands  of  the 
original  holder.  Belo  v.  Forsythe  County 
Conirs,  76  A^.  Car.  i,t<). 

The  purchaser  of  overdue  municipal  bonds 
issued  for  railroad  stock  is  bound  by  a  de- 
cree rendered  before  the  [  urchase  declaring 
them  void.  Louis  v.  Brawn  Tp.,  15  Am.  &^ 
Eng.  R.  Cas.  630,  109  (/.  S.  162,  3  Sup.  Ct. 
Rep.  92. 

373.  Talcing:  in  payinent  of  an  an- 
tecedent (lelit. — The  fact  that  municipal 
bonds  were  taken  in  payment  of  a  pre-exist- 
ing debt  does  not  render  the  holder  any  the 
less  a  bona  fide  holder  for  value.  Mobile 
Sav.  Hank  v.  Oktibbeha  County  Sup'rs,  24 
Fed.  Rep.  1 10. 

The  delivery  of  bonds  by  commissioners 
to  a  contractor  for  building  a  railroad  in 
payment  for  work  thereon  makes  such  con- 
tractor a  purchaser  of  the  bonds  for  value, 
though  he  took  them  for  an  antecedent  debt, 
if  he  took  them  bona  fide.  Foote  v.  Han- 
cock, 15  Blatchf.  {U.  S.)  343. 

374.  Ri(;hts  of  i>iireha.ser  from 
bona  flde  purchaser. — It  is  a  well-set- 
tled rule  of  commercial  law  that  title  to  a 
negotiable  instrument  created  by  a  sale  ot 
the  same  to  an  innocent  person  for  value 
and  before  maturity  is  a  title  upon  which 
any  subsequent  holder  can  recover,  notwith- 
standing he  may  have  notice  of  infirmities 
of  title,  or  of  equities  or  defenses  that  exist 
between  the  original  parties;  and  the  above 
rule  applies  to  a  purchaser  of  county  bonds 
from  an  innocent  holder  with  notice  ot  the 
pendency  of  a  suit  10  test  their  validity. 
Hill  V.  Scotland  County,  34  F'ed.  Rep.  208. 
Scotland  County  v.  Hill,  132  U.  S.  107,  10 
Sup.  Ct.  Rep.  26  ;  affirming  25  Fed.  Rep. 
395. — Following  Douglas  County  Com'rs 
V.  Bolles,  94  U.  S.  104. — Foote  v.  Hancock, 
11  Blatchf.  {U.  S.)iM. 

375.  Rights  of  purchaser  of  stolen 
bonds. — One  who  takes  negotiable  paper 
before  due  in  good  faith  for  a  valuable 
consideration  holds  it  by  a  valid  title  as 
against  all  the  world.     And  this  is  true  of 


I 
I 


Iff 


roo 


MUNICIPAL   AND   LOCAL  AID,  370,377. 


> 


negotiable  bonds  thai  liave  been  stolen. 
Murray  v.  Lurditer,  2  Wall.  (U.  S.)  no. — 
Followed  in  Mineral  Point  v.  Lee,  18 
Law.  Ed.  (U.  S.)  456. 

37(K  Kxteiit  of  purchaser's  recov- 
ery.— A  bona  fide  liolder  of  negotiable 
bonds,  without  notice,  and  for  value,  may 
recover  their  full  value,  and  is  not  restricted 
to  the  amount  which  he  paid  for  the  bonds. 
Grand  Kapids  &^  I.  K.  0>.  .  S,'>  rrrs,  17 
Hi/n  (A\  V.)  552  ;  m'crsing  54  //  214. 

All  purchasers  of  such  bona  .  .)i  j  id 
to  take  notice  of  the  law  unde.  w.ncli  tuey 
were  issued.  The  court  will  enforce  the 
payment  of  the  bonds  to  the  s  stent  of  the 
money  which  they  brought  totheco.,  ?ny, 
ami  no  further.  Remote  purchasers  hav." 
no  greater  rights  than  the  first  purchasers 
from  the  company.  Diamonds.  Lawrence 
County,  37  Pa.  St.  353. 

c.  ElTect  of  Recitals  in  the  Bonds."* 

377.  Bonds  reciting  an  authorized 
i.ssue  are  valid  in  the  hands  of  bona 
fide  liolders. — When  a  municipal  corpo- 
ration has  power,  under  any  circumstances, 
to  issue  negotiable  securities,  a  bona  fide 
holder  of  them  has  a  right  to  presume  that 
they  were  issued  under  the  circumstances 
which  gave  the  requisite  authority.  He  is 
not  bound  to  look  further,  when  they  on 
their  face  import  a  compliance  with  the 
law  under  which  they  were  issued.  Miller 
V.  Berlin,  iiBlatchf.  (U.  S.)  245.  Moranx. 
Miami  County  Com'rs,  2  Black  (U.  S.)  722. 
— Approving  Bissell  v.  Jeflfersonville,  24 
How.  (U.  S.)  287  ;  Knox  County  Com'rs  v. 
Wallace,  21  How.  (U.  S.)  546  ;  Aspinwall  v. 
Daviess  County  Com'rs,  22  How.  364. — 
Followed  in  Kenicott  v.  Wayne  County 
Sup'rs,  16  Wall.  (U.  S.)  452;  Barrett  v. 
Schuyler  County  Court,  44  Mo.  197. — Lynde 
V.  Wiiimhago  County,  16  Wall.  {[/.  S.)  6. 
—.Approved  in  Wells  v.  Pontotoc  County 
Sup'rs,  102  U.  S.  625.  Distinguished  in 
Deland  r'.  Platte  County,  54  Fed.  Rep.  823. 
Followed  in  Moultrie  County  v.  Fairfield, 
105  U.S.  370. — Henry  County  v.  Nicolay,  95 
U.  S.  619.— Followed  in  Ray  County  t/. 
Vansycle,  96  U.  S.  675 ;  Cass  County  v. 
Gilleti,  100  U.  S.  l%l.—Pompton  '•.  Cooper 

*  Effect  of  recitals  in  municipal  aid  bonds, 
see  notes,  15  Am.  &  Eng.  R.  Cas.  5S4;  \2  Id. 
624. 

Doctrine  of  United  States  courts  regarding 
recitals  in  municipal  aid  bonds,  see  note,  15  Am. 
&  Eng.  R.  Cas.  675. 


Union,  loi  U.S.  196.  Bonhain  v.  Xctdls, 
103  U.  S.  648.  Oregon  v.  /enniiii(s.  119  i'. 
S.  74,  7  Sup.  Ct,  Kep.  124.— DiSTlNUUisiiiNi; 
People  ex  rel.  v.  Dutcher,  56  111.  144.  Fol- 
lowing American  Life  Ins.  Co.  v.  Bruce, 
105  U.  S.  328. — Foote  V.  Hancock,  1 5  Blatchf. 
( U.  5.)  343.  Nicolay  v.  St.  Clair  County,  3 
Dill.  (U.  S.)  163.  Jordan  v.  Cass  County,  3 
Dill.  (  U.  S.)  245.  Mobile  Sav.  Bank  v.  Ok- 
tibbeha  County  Sup'rs,  24  Fed.  Rep.  no. 
Smith  V.  Tallapoosa  County,  2  Woods  (U. 
S.)  574.  Clapp  V.  Cedar  County,  5  Iowa  \  5. 
Shurtleff  v.  Wiscasset,  74  Me.  130.  Aber- 
deen V.  Sykes,  59  Miss.  236.  Belo  v.  For- 
syt/te  County  Com'rs,  76  N.  Car.  489. 

The  facts  which  a  municipal  corporation 
i  buiiK,  bonds  in  aid  of  a  railroad  is  not 
permitted,  against  a  bona  fide  holder,  to 
question,  in  face  of  a  recital  in  the  bonds  of 
their  existence,  are  those  connected  with  or 
growing  out  of  the  discharge  of  the  ordi- 
nary duties  of  such  of  its  officers  as  were  in- 
vested with  authority  to  execute  them,  and 
which  the  statute  conferring  the  power 
made  it  their  duty  to  ascertain  and  deter- 
mine before  the  bonds  were  issued.  North- 
ern  Nat.  Bank  v.  Porter  Tp.,  15  Am.  &• 
Eng.  K.  Cas.  575,  1 10  U.  S.  608,  4  Sup.  Ct. 
Hep.  254 ;  affirming  5  Fed.  Rep.  568.  Marcy 
V.  Oswego  Tp.,  92  U.  S.  637.  Davis  v.  A't'w- 
dallville,  5  Biss.  {U.  S.)  280.  Deming  v. 
Houlton,  64  Me.  254.  Lane  v.  Embden,  72 
Me,  354.— Distinguishing  Portland  &  O. 
R.  Co.  V.  Standish,  65  Me.  63. 

There  is  no  distinction,  in  this  respect, 
between  bonds  issued  by  officers  of  the  mu- 
nicipality having  general  powers  to  repre- 
sent it  in  its  fiscal  transactions,  and  bonds 
issued  by  officers  acting  under  a  special 
power  in  the  particular  transaction.  Miller 
V.  Berlin,  13  Blatchf.  (U.  S.)  245. 

Where  county  bonds  in  III.  in  aid  of  a 
railroad  recite  that  the  subscription  was 
made  in  1869,  when  the  county  had  power 
to  subscribe,  when  sued  by  a  bona  fide 
holder,  the  county  cannot  set  up  as  a  de- 
fense that  the  subscription  was  not  made 
until  after  the  adoption  of  a  new  constitu- 
tion in  1870  that  took  away  the  power. 
Moultrie  v.  Rockingham  Ten-Cent  Sav. 
Bank,  92  U.  S.  63 1 . 

Municipal  bonds  id  aid  of  a  railroad  regu- 
larly issued  are  valid  in  the  hands  of  bona 
fide  holders,  though  a  recital  on  the  bonds 
refers  to  a  wrong  statute  as  authorizing 
their  issuance.  Johnson  County  Com'rs  v. 
January,  94  U.  S.  202. 


MUNICIPAL  AND   LOCAL   AID,  378. 


701 


A  purchaser  is  not  presumed  to  have 
notice  of  everytiiing  that  takes  phice  before 
tlie  issuing  of  the  bonds  ;  and  an  averment 
tliat  tlie  proceedings  of  lh"e  city  council 
wi-re  spread  upon  the  records  of  the  city  is 
not  sufficient  to  charge  iiim  with  notice ; 
ictual  knowledge  should  be  charged.  Duvis 
V.  KcHiiallville,  5  Biss.  {U.  S.)  280. 

Where  bonds  recite  that  tliey  were  issued 
in  pursuance  of  a  certain  statute  and  an 
amendment  tliereto,  and  the  amendment  Is 
invalid,  a  purchaser  of  tiie  bonds  without 
notice  may  presume  that  the  lequirements 
of  tlie  original  statute  were  complied  with, 
Moulton  V.  Kvansville,  25  Fed.  Rep.  382. 

A  purchaser  of  coupons  has  a  right  to  rely 
upon  the  truth  of  a  recital  in  city  bonds  in 
respect  to  the  purpose  for  which  they  were 
made,  that  purpose  being  authorized  by 
law,  and  is  not  bound  to  inquire  whether  or 
n(jt  there  has  been  a  diversion  from  that 
purpose,  nor  to  take  notice  of  what  the 
records  of  the  city  council  show  in  that  re- 
spect. Portland  Sav.  Bank  v.  Evansville, 
25  Fed.  liep.  389.— Quoting  Portsmouth 
Sav.  Bank  v.  Springfield,  4  Fed.  Rep.  276. 

:t78.  Recital  that  Ntatiitory  coiidi- 
tioiLs  have  been  perfurnie<l  cou- 
eliides  and  estop.s  the  niiiuicipality. 
— A  bona  fide  holder  of  municipal  bonds,  or 
coupons  therefrom,  which  have  been  pur- 
chased for  a  valuable  consideration  without 
notice  of  any  defense  which  could  be  set  up 
against  them  is  under  no  obligation  to  look 
farther  than  to  see  if  there  is  legislative  au- 
thority for  the  issuance  of  the  bonds,  and 
that  the  condition  upon  which  it  was  al- 
lowed to  be  exercised  has  been  fulfilled.  If 
there  was  such  authority  and  the  precedent 
conditions  have  been  performed,  the  bonds 
and  coupons  are  valid.  Bourbon  County 
Coin'rs  V.  Block,  99  U.  S.  686. 

Recitals  in  municipal  bonds  of  a  compli- 
ance with  conditions  precedent  to  their  is- 
suance are  conclusive  of  such  facts  as  be- 
tween the  municipality  and  bona  fide  holders 
of  the  bonds  for  value,  where  the  bonds  ar6 
issued  by  the  officers  whose  duty  it  is  to  de- 
cide whether  such  conditions  have  been 
complied  with ;  and  such  holder  is  not 
bound  to  look  beyond  the  recitals,  except  as 
to  the  legislative  authority  given  to  issue 
the  bonds.  Douglas  County  Com'rs  v.  Bolles, 
94  U.  S.  104.  —  Followed  in  Scotland 
County  V.  Hill,  132  U.  S.  107. —  Warren 
County  V.  Marcy,  97  U.  S.  96.— Approved 
IN  Orleans  v.  Piatt,  99  U.  S.  676.     Fol- 


lowed IN  Cass  County  v.  Gillett,  100  U.  S. 
585. — Clay  County  v.  Society  for  Savings,  5 
Am.  St*  Eng.  R.  Cas.  170,  104  if.  S.  579. 
Phelps  v.  Le^viston,  15  Blaiclif.  {U.  S.)  131. 
Footf  V.  Hancock,  15  Blatclif.  (U.  S.)  343.— 
Following  Venice  v.  Murdock,  92  U.  S. 
494.— Followed  in  McCall  ta  Hancock,  10 
Fed.  Rep.  8,  20  Blatchf.  344. —//(»//«•  v. 
Covington,  4  Am.  &>  Eng.  R.  Cas.  251,  8  /•'<•</. 
Rep.  777,  10  Biss.  (U.  S.)  488.  Pollard  v. 
PUasant  Hill,  3  Dill.  (U.  S.)  195.  M,uv/iall 
V.  Elgin,  3  McCrary  {U.  S.)  35,  8  Fed.  Rip. 
783.  Lewis  V.  Barbour  County  Com'rs,  12 
Am.  &•  Eng.  R.  Cas.  615,  105  U.  S.  739. 
Washington  Tp.  v.  Coler,  51  Fed.  Rep.  362, 
4  U.  S.  App.  622,  2  C.  C.  A.  272.  Madison 
County  Sup'rs  v.  Brown,  29  Am.  &*  Eng. 
Corp.  Cas.  1 57,  67  A/iss.  684,  7  So.  Rep.  5 1 6. 
State  V.  Saline  County  Court,  48  A/o.  390. — 
Explaining  Mercer  County  v.  Pittsburgh 
&  E.  R.  Co.,  27  Pa.  St.  389;  Mercer  County 
V.  Hacket.  i '  Wall.  (U.  S.)  83.  Quoting 
AND  criticising  Knox  Countv  Com'rs  v. 
Aspinwall,  21  How.  (U.  S.)  545.— /V/t7/j  v. 
Vates,  16  Blatchf.  (U.  S.)  192. 

A  recital  in  a  bond,  purporting  to  have 
been  issued  by  a  town  under  the  New  York 
Act  of  1869  (Laws  of  1869,  ch.  907),  in  aid  of 
a  railroad  company,  to  the  effect  that  Sail 
the  necessary  legal  steps  have  been  taken  to 
comply  with  the  statute  does  not  estop  the 
town  from  questioning  the  validity  of  the 
bond  even  in  the  hands  of  a  bona  fide 
holder,  Craig  v.  Andes,  1 5  Am.  &*  Eng.  R. 
Cas.  662,  93  N.  V.  405.— Distinguishing 
Calhoun  v.  Delhi  &  M.  R.  Co.,  28  Hun  (N. 
Y.)  380. 

A  town  subscribed  for  railroad  stock  and 
issued  its  bonds,  reciting  that  they  "shall  be 
valid  when  it  is  thereon  duly  certified  that 
the  conditions  upon  which  they  were  voted, 
issued,  and  deposited  by  said  town  have  been 
performed."  The  certificate  In  effect  was 
"  that  the  conditions  upon  whicli  the  bonds 
were  voted,  issued,  and  deposited  by  said 
town  had  been  performed."  //^/rf,  a  sufficient 
ronipliance  with  the  condition,  and  that 
the  town  was  estopped  from  denying  the 
validity  of  the  bonds  in  a  suit  by  a  bonafida 
purchaser  before  maturity.  Alenasha  v. 
Hazard,  2  Am.  &*  Eng.  K.  Cas.  571,  102  U. 
S.  81. 

County  bonds  recited  that  they  were  is- 
sued to  a  certain  railway  company  by  vir- 
tue of  certain  statutes,  cited  by  title  and 
date,  and  that  all  the  provisions  and  re- 
quirements of  the  statutes,  and  the  condi- 


I 


T?ai 


ros 


MUNICIPAL  AND   LOCAL  AID,  379, 380. 


i 


'  :H    111 


tions  precedent  to  making  tlie  subscrip- 
tion, and  liic  lawful  issuance  of  the  bunds 
liad  "  been  in  all  respects  fully  and  com- 
pletely complied  with."  Hc/ii,  that  the 
county  could  not  set  up  the  plea  of  u/ira 
vires,  based  upon  the  fact  that  the  company 
was  only  authorized  to  build  a  narrow  gauge 
road,  whereas  the  bonds  were  issued  on 
condition  that  it  be  of  standard  gauge,  as 
against  a  bona  fide  purchaser  for  v.-.uc  on 
the  faith  of  such  recitals.  Kingman  County 
Coin'rs  V.  Cornell  University,  57  Feii.  A'ep. 
149. 

Minn.  St.  of  1878,  ch.  34,  authorized 
municipal  subscriptions  to  railway  stock, 
and  provided  two  modes  for  reaching  an 
agreement  between  the  municipality  and 
the  company.  In  1879  the  statute  was 
amended  so  as  to  allow  but  one  mode.  Af- 
ter the  amendment  the  town  issued  bonds 
upon  an  agreement  reached  according  to 
the  mode  provided  by  the  statute  which  had 
been  repealed,  but  the  bonds  issued  recited 
that  they  were  issued  under  the  statute,  and 
that  all  the  conditions  required  had  been 
complied  with.  Held,  that  the  town  was 
estopped,  as  against  a  bona  fide  holder  for 
value,  from  denying  the  validity  of  the 
bbnds.  Kimball  v.  Lakeland,  41  Fed.  Rep. 
289. —  Quoting  Fulton  v.  Riverton,  42 
Minn.  395,  44  N.  W.  Rep.  257. 

370.  Effect  of  such  recital  to  shut 
off  inquiry  into  ret;ularity  of  tlie 
election. — Where  legislative  authority  has 
been  given  tea  municipality,orto  its  officers, 
to  subscribe  for  the  stock  of  a  railroad  com- 
pany, and  to  issue  municipal  bonds  in  pay- 
ment, but  only  on  some  precedent  condition, 
such  as  a  popular  vote  favoring  the  subscrip- 
tion, and  where  it  may  be  gathered  from 
the  enactment  that  the  officers  of  the  mu- 
nicipality were  invested  with  power  to  de- 
cide whether  that  condition  has  been  com- 
plied with,  their  recital  that  it  has  been, 
made  in  the  bonds  issued  by  them  and  held 
by  a  bona  fide  purchaser,  is  conclusive  of  the 
fact,  and  binding  upon  the  municipality. 
The  recital  is  itself  a  decision  of  the  fact 
.  by  the  appointed  tribunal.  Coloma  v.  Eaves, 
92  U.  S.  484.— Followed  in  Walnut  v. 
Wade,  103  U.  S.  683. — Knox  County  Com'rs 
v.  Aspinwall,  21  How.  ( U.  5.)  539.— APPLIED 
IN  Luling  v.  Racine,  i  Biss.  (U.  S.)  314. 
Approved  in  Moran  x>.  Miami  County 
Com'rs,  2  Black  (U.  S.)  722 ;  Woodruflf  v. 
Okolona,  57  Miss.  806.  Followed  in 
Gelpcke  v.  Dubuque,  i  Wall.  (U.  S.)   175 ; 


Kenosha  v.  Lamson,  19  Law.  Ed.  (U,  S.)  730; 
Kenicott  v.  Wayne  County  Sup'rs,  16  Wall. 
452;  Knox  County  Com'rs  v.  Wallace,  21 
How.  546 ;  Venice  v.  Murdock,  92  U.  S. 
494;  Katzenberger  v.  Aberdeen,  16  Fed. 
Rep.  745.  Quoted  in  Lewis  v.  Bourbon 
County  Com'rs,  12  Kan.  186;  Beaver  Coun- 
ty V.  Armstrong,  44  Pa.  St.  63.  Quoted 
ANU  criticised  IN  State  V.  Saline  County 
Court,  48  Mo.  390.  Quoted  and  distin- 
guished IN  Carpenter  v.  Lathrop,  51  Mo. 
483.  Reviewed  in  Milner  v.  Pensacola,  2 
Woods  (U.  S.)  632 ;  Phelps  v.  Lewiston,  15 
Blaichf.  (U.  S.)  \i\.—Rock  Creek  Tp.  v. 
Strong,  96  U.  S.  271.  San  Antonio  v. 
Meluiffy,  96  U.  S.  312.  Northern  Nat.  Bank 
V.  Porter  Tp.  15  Am.  6^  Eng.  A'.  Cas.  575, 
1106^.  S.  608, 4  Sup.  Ct.  A'ep.  254 ;  affirming 
S  Fed.  Rep.  568.— Followed  in  Carroll 
County  V.  Smith,  i ii  U.  S.  556. — Huidekoper 
V.  Buchanan  County,  3  Dill.  (U.  S.)  175. — 
Approving  Smith  v.  Clark  County,  54  Mo. 
58. —  IVestermann  v.  Cape  Girardeau  County, 
5  Dill.  {I/.  S.)  112.  Milner  \.  Pensacola, 
2  Woods  {U.  S.)  632.— Distinguishing 
Marsh  v.  Fulton  County,  10  Wall.  676.  Re- 
viewing Knox  County  Com'rs  v.  Aspin- 
wall.  21  How.  545. — State  v.  Saline  County 
Court,  48  Mo.  390.— Distinguishing  State 
ex  rel.  v.  Saline  County  Court,  45  Mo.  242. 

A  statement  in  county  bonds  in  aid  of  a 
railroad  that  the  bonds  issued  "  in  pursuance 
to  the  vote  of  the  electors"  is  equivalent  to 
a  statement  that  the  vote  was  one  lawful 
and  regular  in  form,  and  such  as  the  law  re- 
quired, though  followed  by  a  recital  of  the 
wrong  statute.  Anderson  County  Com'rs  v. 
Beal,  li^U.  S.  227,  5  Sup.  Ct.  Rep.  433. 

380. or  of  proceedings  to  ob- 
tain the  consent  of  taxpayers.— Where 
a  city  subscribes  to  railroad  stock  and  issues 
its  bonds,  which  recite  that  they  are  in  pur- 
suance of  an  act  of  the  legislature,  and  an  or- 
dinance of  the  city  council  passed  in  pursu- 
ance thereof,  the  city  is  concluded  thereby 
as  to  any  irregularity  in  making  the  sub- 
scription or  issuing  the  bonds,  and  cannot 
set  up  that  the  required  number  of  free- 
holders did  not  petition  the  council  to  make 
such  subscription.  Moulton  v.  Evansville, 
25  Fed.  Rep.  382.  Van  Hosirup  v.  Madison 
City,  I  Wall.  {U.  S.)  291.— Followed  in 
Mineral  Point  v.  Lee,  18  Law.  Ed.  (U.  S.) 
^$6.— Venice  v.  Murdock,  92  I/.  S.  4  >>  — 
Approving  Society  for  Savings  v.  New 
London,  29  Conn.  174;  Evansville,  L  &  C.  S. 
L.  R.  Co.  V.  Evansville,  15  Ind.  395;   Knox 


MUNICIPAL  AND   LOCAL  AID,  381, 382. 


703 


County  Com'rs  v.  Nichols,  14  Ohio  St.  260. 
DiSAPPROViNc;  Starin  v.  Genoa,  23  N.  Y. 
439;  Gould  V.  Sterling,  23  N.  Y.  456.  Fol- 
lowing Bissell  V.  Jeffersonville,  24  How. 
(U.  S.)  287;  Knox  County  t/.  Aspinwall,  21 
How.  539;  Mercer  Couniy  v.  Hacket,  i 
Willi.  83.— Followed  in  Foote r/.  Hancock, 
15  Bliitchf.  (U.  S.)  343;  McCall  v.  Hancock, 
10  Fed.  Rep.  8,  20  Blatchf.  i\4,.— Miller  s. 
Berlin,  13  lUatchf.  (U.  S.)  245.  Phelps  v. 
Lewiston,  \iBlatchf.  (U. S.)  131.— Quoting 
Marion  County  Com'rs  v.  Clark,  94  U.  S. 
278.  Reviewing  Knox  County  Com'rs  v. 
Aspinwall,  21  How.  544.— Followed  in 
Irwin  V.  Ontario,  3  Fed.  Rep.  49,  18  Blatchf. 
259;    Currie    v.    Lewiston,    15    Fed.    Rep. 

377- 

A  town  is  not  estopped  from  denying  that 
the  assent  of  the  taxpayers  had  been  pro- 
cured by  the  act  of  the  supervisor  and  com- 
missioners in  executing  bonds  asserting 
upon  their  face  that  the  requisite  assent 
had  been  obtained  and  filed.  Such  a  repre- 
sentation is  as  to  the  very  existence  of  the 
power  of  the  agents,  and  is  not  binding 
upon  their  principal.  Gould  v.  Sterling,  23 
N.  Y.  456.— Disapproved  in  Venice  v. 
Murdock,  92  U.  S.  494.  Dlstinguished  in 
Hoag  V.  Greenwich,  133  N.  Y.  152.  Fol- 
lowed IN  Horton  v.  Thompson,  71  N.  Y. 
513  ;  Scipio  V.  Wright,  loi  U.  S.  665.  Not 
followed  in  People  ex  rel.  v.  Hulbert,  59 
Barb.  (N.  Y.)  446.  Quoted  in  Lewis  v. 
Bourbon  County  Com'rs,  12  Kan.  186. 

381.  Such  recital  preveut.s  raLsiiig 
the  qiie.stioii  of  overissue.  —  Where 
municipal  bonds  issued  in  aid  of  a  railroad 
show  their  regularity  on  their  face  and  the 
authority  under  which  they  were  issued,  a 
bona  fide  \io\A^x  is  not  bound  to  look  further 
and  inquire  whether  the  limit  in  amoimt 
had  been  exceeded.  Moultrie  County  v.  Fair- 
field, 7  Am.  &*  Eng.  R.  Cas.  194,  105  U.  S. 
370.  —  Following  Lynde  v.  Winnebago 
County,  16  Wall.  (U.  S.)  6;  Lexington  v. 
Butler,  14  Wall.  282 ;  Marcy  v.  Oswego  Tp., 
92  U.  S.  637;  Humboldt  Tp.  v.  Long,  92  U. 
S.  642. —  Walnut  v.  Wade,  3  Am.  &-  Eng. 
li.  Cas.  36,  103  U.  S.  683. — Following 
Coloma  V.  Eaves,  92  U.  S.  484 ;  Marcy  v. 
Oswego  Tp.,  92  U.  S.  639. — Dallas  County 
V.  McKenzie,  1 5  Am.  Sf  Eng.  R.  Cas.  622, 
110  17.  S.  686,  4  Sup.  Ct.  Rep.  184.— Fol- 
lowing Marcy  v.  Oswego  Tp.,  92  U.  S. 
637 ;  Humboldt  Tp.,  v.  Long,  92  U.  S.  642 ; 
Wilson  V.  Salamanca  Tp.,  99  U.  S.  504. 

But  where  the  bonds  are  issued  in  excess 


of  the  limit  fixed  by  the  state  constitution, 
a  recital  in  the  bonds  that  all  the  provisions 
of  a  certain  statute  have  been  fully  com- 
plied with,  and  such  statute  recites  the 
constitutional  limitation,  the  county  is  not 
thereby  estopped  from  denying  the  validity 
of  the  bonds.  Sutliff  v.  Lake  County,  47  Fed. 
Rep.  106. 

:)82.  Effect  uf  omission  to  recite 
conditions  precedent  to  issue. — \  city 
which  has  by  a  local  statute  the  right  to 
make  a  subscription  on  condition  in  aid  of 
a  railroad  cannot,  when  its  officers  have  is- 
sued its  bonds  containing  no  notice  in  their 
recitals  of  any  condition,  set  up,  as  against 
a  bona  fide  holder,  that  the  bonds  are  void 
for  non-compliance  with  certain  conditions, 
even  though  the  statute  authorizing  their 
issue  expressly  provides  that  they  shall  not 
be  valid  till  such  conditions  are  complied 
with.  American  Life  Ins.  Co.  v.  Bruce,  12 
Am.  &•  Eng.  R.  Cas.  610,  105  U.  S.  328.— 
Distinguishing  Eaijle  w.  Kohn,  84  ill.  292. 
— Followed  in  Oregon  v.  Jennings,  119 
U.  S.  74. 

Where  a  town  subscribes  to  railroad  stock 
and  issues  its  bonds,  which  recite  that  they 
are  issued  by  virtue  of  authority  contained 
in  the  charter  of  the  company,  and  after  a 
vote  of  the  electors  of  the  town,  such  reci- 
tals will  preclude  subsequent  inquiry  as  to 
whether  an  election  was  held  and  the  vote 
authorized  the  subscription  ;  but  it  does  not 
preclude  inquiry  as  to  whether  a  condition 
was  performed  after  the  bonds  were  issued, 
such  as  the  building  of  the  road  through  the 
town,  and  to,  or  near,  a  certain  city,  as  the 
III.  Act  of  April  16,  1869,  §  7,  expressly  au- 
thorizes municipalities  to  impose  conditions 
in  making  such  subscriptions,  and  provides 
that  they  shall  not  be  binding  until  such 
conditions  are  complied  with.  Parker  v. 
Smith,  3  III.  App.  356. 

A  county  court  in  Tennessee  subscribed 
to  railroad  stock  under  a  statute  requiring 
the  bonds  to  fall  due  in  not  less  than  ten  nor 
more  than  thirty  years,  and  ordered  the  is- 
suance of  coupon  bonds  payable  in  thirty 
years  with  semi-annual  interest,  as  the  law 
required,  but  provided  by  their  order  that 
the  whole  of  the  bonds  should  be  paid  in 
six  annual  instalments  ;  but  this  last  provi- 
sion was  not  incorporated  in  the  bonds. 
Held,  that  the  bonds  were  not  thereby  ren- 
dered void  in  the  hands  of  innocent  holders 
after  the  county  had  recognized  them  and 
paid  interest  thereon  for  sixteen  years.  State 


I 


M 


£ 

! 

i 

B 

T^ 

ro4 


MUNICIPAL   AND   LOCAL  AID,  383, 384. 


a' ' ' 


iH 


"I 


ex  rel.  V.  Anderson  County,  8  //<i47.  (Ti/i/i.) 
249. 

383.  Wliurv  tlicre  Ih  no  |iow<;r  to 
iHMii<>,  r«H'italH  will  not  protect  piir- 

cliiiMcr.— Evoii  u  l>o)ia  fide  holder  of  mu- 
nicipal iionds  issued  for  stock  in  a  railroad 
cannot  recover  where  the  recitals  on  the 
face  of  the  bonds  show  that  they  were  un- 
authorizcfi.  Hates  County  v.  Winters,  ofj  U. 
S.  83.  Xiijreiit  V.  Putnam  County,  3  Hiss.  ( U. 
S.)  105;  nnicrsed  in  19  Wall.  241.  Dod^e 
V.  Platte  County,  2  Am.  &'  En^.  A'.  Cas.  583, 
82  /V.   K.  218;   reversing  16  Hun  285. 

In  such  case  the  position  of  the  holder  is 
dilTerent  from  where  the  power  existed,  but 
was  irregularly  exercised,  fhoinas  v,  Lan- 
sing, 14  Fed.  Hep.  618,  21  Hlatclif.  (U.  S.) 
119. — Applying  People  ex  rel.  v.  Morgan, 
55  N.  Y.  587. 

Municipal  bonds  issued  for  stock  in  a  rail- 
road under  an  election  not  authorized  by 
law  are  void  in  the  hands  of  bona  fide 
holders,  notwithstanding  recitals  on  their 
face,  and  subsequent  acts  in  pais  claimed  to 
operate  by  way  of  estoppel.  Hayes  v. 
Mayor,  etc.,  of  Holly  Springs,  \i\  U.  S.  120, 
5  Sup.  Ct.  Hep.  785.  Carroll  County  v. 
Smith,  15  Am.  <S>»  Eng.  H.  Cas.  606,  ml/. 
S.  556,  4  Sup.  Ct.  Hep.  539.— Following 
Northern  Nat.  Bank  v.  Porter  Tp.,  no  U. 
S.  608;  Dixon  County  r/.  Field,  in  U.S. 
83;  School  Dist.  V,  Stone,  106  U.  S.  183. 

As  all  persons  are  bound  to  know  the  lawi 
a  county  is  not  estopped  by  a  recital  on  its 
bonds  issued  in  aid  of  a  railroad  that  is  a 
mere  conclusion  of  law.  So  where  bonds 
issued  without  authority  of  law,  the  county 
is  not  bound  by  a  recital  stating  certain  facts, 
and  then  stating  as  a  conclusion  based  on 
these  facts  that  the  bonds  were  lawfully  is- 
sued, and  the  county  may  set  up  the  want 
of  authority  as  a  defense  to  a  suit  by  an  in- 
nocent holder  of  the  bonds.  Dixon  County 
V,  Field,  1 5  Am.  iS»  Ettg.  H,  Cas.  595,  1 1 1 
I/.  S.  83,  4  Sup.  Ct.  Hep.  315. — Followed 
IN  Coffin  V.  Kearney  County  Com'rs,  57  Fed. 
Rep.  137;  Carroll  County  v.  Smith,  in  U. 

S.  556. 

Neither  the  constitution  nor  statutes  of 
Tennessee  in  force  in  1873  authorize  munic- 
ipalities to  issue  bonds  in  aid  of  a  railroad, 
and  a  recital  in  such  bonds  that  they  were 
issued  "  in  pursuance  of  law  "  does  not 
estop  the  municipality  from  showing  that  it 
did  not  have  the  re{;ular  number  of  inhab- 
itants to  authorize  it  to  issue  bonds  in  pay- 
ment of  "  matured  liabilities,"  as  authorized 


by  a  statute ;  neither  is  it  estopped  from 
denying  the  validity  of  the  bonds  by  a  de- 
cree entered  in  pursuance  of  a  compromise 
with  a  railroad  company  and  the  bi^nd- 
holders  whereby  the  town  should  issue  its 
bonds  for  a  certain  amount  uf  stuck,  and 
the  court  should  decree  them  valid.  A'elly 
V.  Milan,  21  Fed.  Hep.  842. 

384.  When  rccitalM  put  piircliuNM' 
on  inquiry.— The  general  rule  is  that  mu- 
nicipalities are  not  estop|)ed  by  recitals  in 
bonds  issued  by  them  unless  the  recitals  re- 
late to  matters  of  fact  which  it  may  fairly 
be  presumed  that  the  officers  of  the  munic- 
ipality were  left  to  determine ;  and  the  la- 
ter federal  decisions  hold  that  recitals  can- 
not be  relied  upon  as  an  estoppel  where  the 
facts  recited  are  matters  of  public  record, 
and  are  open  to  the  inspection  of  every  one 
who  is  disposed  to  make  inquiry.  Coj^n  v. 
/Kearney  County  Com'rs,  57  Fed.  Hep.  137. — 
Foi.LOWiNG  Sutlilf  V.  Lake  County  Com'rs, 
147  U.  S.  230,  13  Sup.  Ct.  Rep.  318. 

Where  bonds  contain  sufficient  recitals 
on  their  face  to  put  a  purchaser  on  inquiry 
as  to  their  validity,  he  cannot  recover  there- 
on if  they  were  issued  without  authority  of 
law.  Harshman  v.  Bates  County,  92  U.  S. 
569. 

Where  county  railroad  subscription  bonds 
contain  on  their  face  a  reference  to  the  law 
under  which  they  were  issued  and  the  vote 
authorizing  them,  a  purchaser  thereof  is 
chargeable  with  notice  of  a  condition  of  the 
vote  that  the  bonds  should  not  issue  unless 
the  road  was  commenced  and  completed 
within  certain  fixed  dates.  German  Sav. 
Bank  V.  Franklin  County,  128  U.  S.  526,  9 
Sup.  Ct.  Hep.  1 59. 

A  recital  on  the  face  of  bonds  issued  by  a 
town  in  aid  of  a  railroad  that  the  bonds  are 
issued  "  by  virtue  of "  a  certain  act  of  the 
legislature  may  be  a  correct  statement,  al- 
though there  has  been  no  compliance  with 
the  act.  First  Nat.  Bank  v.  IVolcolt,  19 
Blatchf.  {U.  S.)  370.  7  Fed.  Hep.  892. 

A  recital  in  county  bonds  that  they  were 
issued  pursuant  to  an  order  of  the  county 
court  puts  whoever  conies  into  possession 
of  the  bonds,  even  if  purchased  for  value  in 
the  open  market,  upon  inquiry  as  to  the 
terms  of  the  order.  Post  v.  Pulaski  County, 
49  Fed.  Hep.  628,  9  [/.  S.  App.  i,  i  C.  C.  A. 
405 ;  affirming  47  Fed.  Hep.  282. 

Where  a  railroad  charter  requires  a  ma- 
jority of  the  taxable  inhabitants  to  vote  for 
a  subscription,  the  record  of  a  county  court 


MUNICIPAL  AND   LOCAL   AID,  a85-U80. 


ro5 


which  only  recites  tiiat  "  tlic  taxable  inhab- 
itants aforesaid  voted  in  (avor  of  such  sub-' 
scripiion  "  is  not  sufficient,  where  tliere  is 
no  further  statement  liiat  a  majority  of 
such  inhabitants  voted  for  tiic  subscrip- 
tion ;  and  sucii  defect  is  uoi  cured  Ijy  a  re- 
cital in  the  bonds  that  they  were  issued  "  in 
pursuance  of  an  election  by  tlie  taxable  in- 
habitants of  Camden  Point,"  where  it  fails 
to  state  that  a  majority  voted  for  the  su' 
scription,  and  where  the  election  petitioned 
for  and  held  was  for  part  of  a  township, 
and  Camden  Point  was  only  the  voting 
place  tlierein.  Deland  v.  I'latte  County,  54 
Fed.  Kep.  823. 

385.  Eftct't  of  rvuitalM  t»  cNtop 
holder.  —  Although  bonds  on  their  face 
recite  that  they  were  issued  under  Mo.  gen- 
eral act  of  1855  for  the  formation  of  rail- 
roads, and  that  act,  as  amended  by  the  acts 
of  1S60  and  1861,  require  a  popular  vote  to 
authorize  the  issue  of  the  bonds,  sucli  re- 
citals will  not  estop  an  innocent  holder 
from  showing  that,  in  point  of  fact,  the 
bonds  were  issued  under  the  special  act  of 
1857.  Smith  v.  Clark  County,  54  Mo.  58. — 
Approved  in  Nicolay  v.  St.  Clair  County, 
3  Dill.  (U.  S.)  163;  Huidekoper  v.  Bu- 
chanan County,  3  Dill.  175. 

6.  Actions  to  Enforce  or  Cancel. 
a.  To  Enforce. 

380.  Ill  general.— An  action  may  be 
maintained  upon  municipal  bonds  issued  in 
aid  of  a  public  improvement,  where  the  ob- 
ligation to  pay  is  unconditional,  notwith- 
standing they  were  issued  under  Colo.  Act 
of  Jan.  10,  1868,  providing  for  the  payment 
of  such  bonds  through  the  territorial  or 
state  officers  instead  of  by  the  municipality. 
Toothaker  \.  Boulder,  13  Colo.  219,  22  Pac. 
Kep.  468. 

A  town  in  Vermont  issued  bonds  under 
seal  in  aid  of  a  railroad  with  interest  cou- 
pons attached  not  under  seal.  Each  coupon 
contained  an  express  promise  by  the  town  to 
pay,  and  was  payable  to  bearer,  and  was 
signed  by  the  proper  officer.  Held,  that 
assumpsit  was  a  proper  form  of  action  on 
the  coupons.  First  Nat.  Bank  v.  Benning- 
ton, 16  Blatchf.  (I/.  S.)  53. 

387.  Jurisdiction  offederal  courts. 

— Under  the  provision  of  the  Judiciary  Act 

that  no  district  or  circuit  court  shall  have 

cognizance  of  any  suit  to  recover  the  con- 

6  D.  R.  D.— 45 


tents  of  any  proniissory  note  or  chose  in 
action  in  favor  of  an  assignee  unless  a  suit 
might  have  been  prosecuted  in  such  couit 
if  no  assignment  luid  been  made,  an  as- 
signee of  a  railroad  boiul  under  seal,  given 
by  a  city  to  a  railroatl  in  the  same  state, 
cannot  sue  in  the  federal  courts.  Clarke  v. 
Janesville,  1  Biss.  ( U.  S.)  98. 

And  the  same  rule  applies  to  interest 
coupons  from  such  bonds,  tliougii  they  be 
payable  to  bearer.  Clarke  v.  Jancsvillt\  i 
Biss.  {(/.  S.)  9S. 

A  county  in  Arkansas  may  be  sued  in  a 
United  States  circuit  court  by  a  noii-rcsi- 
dent  upon  bonds  which  it  has  issued  in  aid 
of  a  railroad  notwithstanding  the  act  of  tiiat 
state  of  Feb.  27,  1879,  prohibiting  actinns 
against  counties,  and  requiring  demands 
against  the  counties  to  be  presented  to  the 
county  courts  for  allowance,  and  provifling 
for  an  appeal  from  the  judgment  of  such 
courts.  Chicot  County  v.  Sherwood,  148  U. 
S.  529,  13  Sup.  Ct.  Kep.  695. 

388.  Demand  before  suit.  —  Where 
a  court  of  county  commissioners  in  Ala- 
bama, pursuant  to  the  act  of  Dec.  31,  1868 
(P.  L.  1868,  p.  514),  subscribed  for  stock  in 
a  railroad  company,  and  issued  the  bonds  <  i 
the  county  in  payment  therefor,  the  holder 
of  them,  or  of  the  coupons  thereto  attached, 
is  not  required  to  present  tlieni  when  due 
to  that  court  for  allowance  before  com- 
mencing suit  to  enforce  their  payment, 
Greene  County  v.  Daniel,  3  Atn.  6«»  En^^.  A'. 
Cas.  105,  102  U.  S.  187.— Following  Shin- 
bone  V.  Randolph  County,  56  Ala.  183. 

A  demand  of  payment  of  a  n'.unicipal  aid 
bond  made  on  the  town  treasni-'r  is  a  suffi- 
cientdemand.  Leach  v.  Fayetteville  Com  'rs, 
84  A^.  Car.  829. 

389.  Who  may  sue.— If  the  holder  of 
valid  municipal  bonds  surrenders  them  to 
the  municipality,  and  receives  in  exchange 
therefor  other  bonds  which  the  municipality 
had  not  the  lawful  right  to  issue,  he  is  not 
thereby  divested  of  his  title  to  the  bonds  so 
surrendered,  and  such  owner  and  holder  of 
the  bonds  so  surrendered  may  maintain  an 
action  thereon  after  the  same  mature. 
Deyo  V.  Otoe  Co\tnty,  yj  Fed.  Rep.  246.— Fol- 
lowing Plattsmouth  v.  Fitzgerald,  10  Neb. 
401,  6  N.  W.  Rep.  470. 

The  plaintiff  purchased  coupons  from 
municipal  bonds  issued  in  aid  of  a  railroad 
at  the  suggestion  of  those  who  formerly 
owned  them,  with  a  view  to  collecting  them 
m  the  U.  S.  circuit  court  when  it  was  sup- 


I 
I 


TOO 


MUNICIPAL   AND    LOCAL   AID,  »ftO,3»l. 


posed  a  recovery  could  not  be  obtained 
upoti  them  in  the  state  courts.  Tiie  former 
owners  guaranteed  the  collection  of  the 
coupons.  The  plaiiititT  was  pnjtected  from 
costs  if  he  was  defeated,  and  he  was  not  to 
pay  for  the  coupons  until  two  years  and  a 
h.ilf  after  the  lime  of  the  purchase.  Ilelii, 
that  hecould  maintaina  suit  against  the  town 
on  the  coupons,  being  tlie  owner  of  them, 
and  that  his  intent  in  acquiring  tliem  was 
immaterial.  McCall  v.  Ilancock,  20  lUatchf, 
(U.S.)  344.  10  Fed.  l\i'p.  8.— Ai'i'koviNc; 
Osborne  v.  Brooklyn  City  R.  Co.,  5  Ulatchf. 
366. 

:)»0.  I>arti<>H  dc'l'ciidaiit.  —  Where  u 
municipal  corporation  is  dissolved  and  a 
new  one  created,  which  succeeds  to  the  pub- 
lic property  of  the  old  corporation,  and  lias 
the  same  general  powers,  and  includes  tlie 
same  persons  and  property,  only  in  reduced 
territorial  limits,  it  will  be  deemed  the  legit- 
imate successor  of  tiie  former,  and  will  be 
liable,  among  other  things,  for  bonds  issued 
by  the  old  organization  for  stock  in  a  rail- 
road. Mobile  \.  Watson,  116  U.  S.  289,  6 
Su/>.  a.  Rep.  398. 

On  a  bill  in  equity  to  compel  the  first  pur 
chaser  of  municipal  bonds  in  aid  of  a  rail- 
road to  receive  in  payment  only  the  sum 
Oiiid  for  them,  where  they  had  been  sold  be- 
low par,  contrary  to  the  statute  authorizing 
their  issuance,  it  is  not  necessary  to  make 
the  railroad  a  party  defendant.  But  other- 
wise if  the  suit  be  against  a  second  or  any 
subsequent  purchaser.  Armstrong  County 
V.  Ihiuton,  47  Pa.  St.  367. 

A  statute  authorized  a  city  to  issue  its 
bonds  for  stock  in  a  railroad,  and  provid- 
ed that  the  stock  should  remain  '•  forever 
pledged  for  the  redemption  of  said  bonds," 
and  made  no  further  provision  for  the  pay- 
ment of  the  bonds,  but  provided  for  a  special 
tax  to  pay  the  interest  annually.  Ne/ii,  that 
the  pledge  only  created  a  collateral  security 
:for  the  payment  of  the  bonds,  and  did  not 
release  the  city  from  its  primary  liability; 
that  a  bondholder  was  not  bound  to  look  to 
that  security,  but  might  proceed  directly 
against  the  city.  IVo/Jf  v.  Mayor,  etc.,  of 
New  Orleans,  12  Am.  &*  Eff^.  K.  Cas.  625, 
103  U.  S.  358. 

A  certain  precinct  in  Nebraska  voted 
bonds  in  aid  of  a  railway  under  the  act  of 
Feb.  15,  1869,  as  amended  March  3,  1870,  to 
enable  counties,  cities,  and  precincts  to  bor- 
row money  for  internal  improvements,  and 
providing   that   the  bonds   of   a  precinct 


shall  be  issued  by  the  county  commission- 
ers. I/elil,  that  where  such  bonds  are  issued 
anfl  sued  on  the  county  is  the  proper  de- 
fendant. A'enia/ia  County  v.  Frank,  120  U, 
S.  41,  7  Sup.  Ct.  Kep.  395.— Foi.i.owiNC. 
Davenport  f.  Dodge  County,  105  U.  S.  237; 
Blair  v.  Cuming  County,  in  U.  S.  363,  4 
Sup.  Ct.  Uep.  449. 

iilM.  DtM-lurutioii  or  iiotitioii.— In 
an  acii(jn  on  municipal  bunds  in  aid  of  a 
railroad  issued  l)y  authority  of  law,  plainiitT 
need  only  declare  on  the  bonds.  If  any 
lequisite  necessary  to  give  them  validity  has 
been  omitted,  it  is  matter  of  defense.  Lin- 
coln v.  Cambria  Iron  Co.,  103  U.  S.  412. 
liurlin^^ton  ii-  M.  R.  Co.  v.  Otoe  County,  1 
Dili.  (U.S.)  11%. 

Where  the  power  of  a  county  to  subscribe 
to  railroad  stock  and  issue  its  bonds  in  pay- 
ment is  derived  from  a  general  law,  in  suing 
on  the  bonds  such  power  need  not  be  set 
out  in  the  declaration.  Ring  v.  Johnson 
County,  6  Men  265.— Foi.l.oWKD  in  (Jeli)cke 
V.  Dubuque,  i  Wall.  (U.S.)  175.  Revii;wki> 
IN  Stokes  z/.  Scott  County,  10  Iowa  166. 

A  declaration  upon  county  bonds  sliould 
show  by  avernjent,  or  by  recital  in  the  bonds 
made  part  thereof,  that  the  bonds  were  is- 
sued for  some  authorized  purpose  or  object. 
Thayer  v.  Montgomery  County,  3  Dill.  ( U. 
S.)  389. 

Where  a  declaration  in  an  action  on  town 
bonds  avers  all  the  facts  required  by  the 
law  to  make  the  bonds  valid,  it  is  not  de- 
murrable because  there  is  filed  with  it  a 
certificate  of  the  town  clerk  which  is  not 
sufficient  to  show  such  facts,  as  such  certifi- 
cate is  only  evidence  of  the  facts  contained 
in  the  declaration,  and  may  be  treated  as 
mere  surplusage.  Pierce  v.  .SV.  Anne,  30 
Fed.  Rep.  36. 

A  person  who  is  the  legal  owner  of  such 
bonds  is  entitled  to  sue  thereon,  and  a  dec- 
laration which  shows  that  the  plaintiff  is 
the  legal  owner  is  not  demurrable  because  it 
further  shows  that  other  parties  have  an 
equitable  interest  in  the  bonds.  Pierce  v. 
St.  Anne,  30  Fed.  Rep.  36. 

In  a  suit  on  obligations  issued  under  the 
N.  J.  "act  to  authorize  certain  towns  in  the 
counties  of  Somerset,  Morris,  Essex,  and 
Union  to  issue  bonds  and  take  stock  in  the 
Passaic  Valley  and  Peapack  railroad  com- 
pany," approved  April  9,  1868,  the  decla- 
ration must  show  that  the  conxmissioners 
who  issued  the  bonds  were  appointed  and 
had  given  security  in  the  manner  required 


SSUCfl 


MUNICIPAL   AND  LOCAL  AID,  :I02,  .'iO.'l. 


707 


by  the  act,  and  that  the  cunsent  of  such  a 
proportion  of  the  taxpayers  of  the  townsliip 
had  been  jjiven  and  evidenced  in  ilie  man- 
ner required  by  the  act  fortlic  issuing  of  the 
obi ijjat ions,  and,  in  i;eneral,  must  sliow  the 
jiower  of  the  roiiiinissioners  to  issue  liie 
obligations.  Cotton  v.  AVw  rrtniitifnce,  47 
A'.  /,  A.  401,  I  Atl.  h'fp,  253.  — F()i,i,()WiN(i 
Morrison  7'.  Bernards  Tp.,  36  N.J.  L.  219. — 
Koi.l.oWKK  IN  New  Providence  ?'.  Ualsty, 
117  U.  S.  336. 

A  declaration  on  the  coupons  of  such  ob- 
b^jalions  requires  the  same  averments  of 
authority  as  a  dechiration  on  the  obli^ja- 
lioMS.  Cotton  V.  At"7f  Pnrvidence,  47  N,  J, 
L.  401.  2  ////.  I\ep.  253. 

An  act  authorizing  a  county  to  issue 
bonds  ill  aid  of  a  railroad  provided  that 
bonds  issued  and  negotiated  by  the  commis- 
sioners, and  reguhir  on  tlic  face  tliereof, 
sliould,  in  the  hands  of  the  company  or  of 
any  Imnafide  holder  thereof,  be  deemed  and 
taken  in  all  courts  and  elsewhere  as  con- 
clusive evidence  of  the  regularity  of  every- 
thing required  by  the  act  to  be  done  pre> 
liminary  to  the  issuing  and  negotiation  of 
such  bonds.  Held,  that  to  make  bonds  reg- 
ular on  the  face  thereof  such  conclusive  evi- 
dence, and  an  estoppel  to  a  defense  showing 
a  want  of  power  in  the  commissioners,  there 
must  be  an  averment  that  they  had  been 
•'  issued  and  negotiated  by  the  commis- 
sioners." Sttxte  ex  rel.  v.  Hancock  County 
Coin'rs,  II  0/1  to  St.  183. 

3»3.  Plea  or  answer.  —  Where  a 
county  pleads  the  general  issue  to  a  suit  on 
its  bonds  in  aid  of  a  railroad,  the  county 
cannot  object  that  there  was  no  evidence  of 
its  authority  to  issue  the  bonds,  nor  that  the 
seal  attached  was  the  seal  of  the  county, 
when  the  law  of  the  state  provides  that  the 
due  execution  of  a  written  instrument  can- 
not be  denied  except  by  a  sworn  plea. 
Chambers  County  v.  Clews,  21  Wall.  (U.  S.) 
3'7. 

:)03.  Matters  oi  defense.— (1)  Gen- 
erally.—S.  county  cannot  set  up  as  a  defense 
to  a  mandamus  to  compel  payment  of  a 
judgment  against  it  for  interest  on  its  bonds 
issued  in  aid  of  a  railroad  that  it  had  once 
raised  the  money  by  taxation  which  had 
been  lost  before  paid  over.  Ralls  County 
Court  V.  United  States,  105  U.  S.  733. 

Where  a  county  issues  bonds  in  aid  of  a 
railroad,  and  afterwards  files  a  bill  against 
the  company  and  its  trustee  to  restrain  the 
negotiation  of  the  bonds,  and  the  case  is  de- 


cided against  the  county,  it  is  estopped  'rr.m 
setting  up,  against  subsequent  purcli.'.s.r.s 
of  such  bonds,  any  ground  of  illegality 
which  might  have  been  set  up  in  the  hill. 
Vrehle  v.  Portage  County  Sup'rs,  8  lUss.  ( U. 

.'■•.)  35«. 

Bonds  of  a  county  arc  ascertained  claims. 
II.  •  county  board  has  no  power  to  audit 
or  allow  them,  or  to  disallow  them.  They 
are  to  be  paid  upon  presentation  to  the 
treasurer.  Therefore  an  order  of  a  county 
board  directing  the  treasurer  not  to  pay 
certain  bonds  issued  by  the  county,  and  for 
which  money  is  in  his  hands,  and  which  it 
is  his  duty  to  pay,  is  a  nullity,  and  would  be 
no  defense  to  an  action  against  the  treas- 
urer  for  the  pa\  inent  of  such  money.  State 
v.  AlcCrillus,  4  h'an.  250. 

A  change  in  the  route  of  the  railroad  or 
a  failure  to  build  the  road  gives  no  exemp- 
tion from  payment  of  the  bonds  issued  by 
appellant.      Eminence  v.  Grasser,  81  Ky.  52. 

Railroad  commissioners  of  a  town  who 
have  received  from  the  collector  of  the 
town  moneys  raised  by  tax  to  pay  interest 
coupcjns  on  bonds  of  the  town,  issued  in 
payment  of  a  subscription  to  the  capital 
stock  of  a  railroad,  cannot  draw  in  question 
the  validity  of  the  bonds  to  justify  them  in 
refusing  to  pay  over  the  moneys  to  the 
owners  of  the  coupons.  First  Nat.  Bank  v. 
Wheeler,  72  N.   K  201. 

The  fact  that  the  commissioners  resist 
payment  and  defend  an  action  against  them 
by  the  holder  of  such  coupons,  pursuant  to 
a  resolution  of  a  town  meeting,  and  under 
a  promise  of  indemnity  from  the  town,  does 
not  make  the  invalidity  of  the  bonds  a  de- 
fense to  the  action.  First  Nat.  Bank  v. 
Wheeler,  72  N.  K.  201. 

Where  an  act  of  assembly  authorized 
county  commissioners  to  subscribe  to  the 
stock  of  a  railroad  company,  and  made  it  a 
condition  precedent  that  the  grand  jury 
recommend  the  subscription,  It  is  no  valid 
objection  to  the  bonds  issued  in  payment 
of  the  subscription  that  the  officers  of  the 
company  were  admitted  to  the  grand  jury 
room,  and  permitted  to  urge  the  subscrip- 
tion. Nor  Is  it  any  defense  to  the  bonds  in 
the  hands  of  an  Innocent  purchaser  that 
the  recommendation  of  the  subscription 
was  obtained  by  unfair  and  corrupt  means. 
Com.  ex  rel.  v.  Allegheny  County  Com'rs,  yj 
Pa.  St.  237.— Approved  in  State  ex  rel.  v. 
Goshen  Tp.,  14  Ohio  St.  569. 

The  substitution  of  smaller  bonds  for  one 


I 


708 


MUNICIPAL  AND   LOCAL   AID,  393. 


bond  of  the  full  amount  of  the  subscription 
is  simply  changing  the  evidence  of  indebt- 
edness, and  is  no  valid  objection  to  the 
bonds  so  substituted.  Com.  ex  rel.  v.  Al- 
legheny County  Com'rs,  37  Pa.  St.  zyj. 

(2)  Ultra  vires.  —  Where  the  charter  of  a 
city  authorizes  it  to  subscribe  for  railroad 
stock,  and  to  issue  its  bonds  in  payment,  it 
cannot  defeat  an  action  on  the  bonds  on  the 
ground  that  the  charter  of  the  company  did 
not  authorize  it  to  receive  the  bonds  in 
payment  for  stock.  Power  to  the  city  to 
issue  bonds  carries  with  it  power  to  the 
company  to  receive  them,  and  issue  stock 
therefor.      Clark  \.  Janesville,  10  Wis.  136. 

A  county  issued  its  bonds  in  payment  of 
railroad  stock,  in  compliance  with  all  legal 
X  formalities,  with  u  condition  that  the  coun- 
ty build  a  standard  gauge  road  through 
the  county,  which  was  done.  Held,  that 
the  county  could  not  set  up  a  plea  of  ultra 
vires  as  a  defense  to  an  action  on  the 
bonds,  in  that  the  company  was  only  au- 
thorized to  build  a  narrow  gauge  road. 
Kingman  County  Com'rs  v.  Cornell  Uni- 
versity, 57  Fed.  Rep.  149. 

(3)  Irregular  organization  of  railway  com- 
pany.— Where  a  county  has  issued  bonds 
for  railroad  stock,  and  after  several  years 
sold  the  stock  by  authority  of  an  act  of  the 
legislature,  it  is  estopped  from  setting  up 
an  irregularity  in  the  organization  of  the 
company  in  defense  to  a  suit  on  the  bonds. 
Leavenworth  County  Com'rs  v.  Barnes,  94 
U.  S.  70. 

A  county  cannot  defend  an  action  against 
it  on  its  bonds  issued  for  railroad  stock  on 
the  ground  that  the  charter  expired  before 
the  company  was  organized.  The  question 
of  the  existence  of  the  charter  can  only  be 
questioned  by  the  state,  especially  where 
the  corporation  at  the  time  is  in  the  exer- 
cise of  all  its  chartered  franchises.  Dallas 
County  V.  Huidekoper,  25  Law.  Ed.  {U.  S.) 
974.— Following  Smith  v.  Clark  County, 
54  Mo.  59  ;  Macon  County  v.  Shores,  97  U. 
S.  276.— Followed  in  Dallas  County  v. 
Davol.  25  Law,  Ed.  (U.  S.)  974. 

In  suit  on  a  bond  given  by  a  county  court 
in  aid  of  a  subscription  for  a  railroad,  the 
question  whether  the  corporation  had  a 
legal  existence  cannot  be  raiseci.  The  only 
proper  way  to  test  this  question  would  be 
by  guo  warranto  on  the  part  of  the  state. 
Smith  v.  Clark  County,  54  Mo.  58.— Fol- 
lowed IN  Dallas  County  v.  Huidekoper,  25 
Law.  Ed.  (U.  S.)  974. 


(4)  City  unhvM/ully  incorporated. — Where 
a  city  in  Missouri  is  sued  on  coupons  from 
its  bonds  issued  in  aid  of  a  railroad,  a  de- 
fense is  not  good  that  avers  that  the  act 
incorporating  the  city  was  unconstitutional 
because  the  subject-matter  of  the  act  was 
not  expressed  in  its  title,  as  the  constitu- 
tional provision  does  not  relate  to  tlie 
incorporation  of  cities.  Neither  is  the 
defense  that  the  legislature  could  not  con- 
stitutionally amend  the  charter  so  as  to 
create  a  city  out  of  a  town,  nor  that  the 
city  did  not  have  the  required  population. 
Judson  V.  Plattsburg,  3  Dill.  (U.  S.)  181.— 
Approving  State  ex  rel.  v.  Cape  Girardeau 
&  St.  L.  R.  Co.,  48  Mo.  468. 

(5)  Objections  to  petition  of  taxpayers. — 
In  a  proceeding  under  N.  Y.  Act  of  1869, 
ch.  907,  as  amended  in  1871,  ch.  925,  to 
bond  a  town  in  aid  of  a  railway,  the  peti- 
tion to  the  county  judge  must  be  by  a  ma- 
jority of  the  taxpayers,  excluding  those 
taxed  only  for  dogs  or  highways,  and  the 
county  judge  has  no  jurisdiction  unless 
such  fact  appears  by  the  petition,  and  a 
defect  in  this  particular  may  be  set  up  as  a 
defense  to  an  action  on  the  bonds  by  a  bona 
fide  purchaser.  Wilson  v.  Caneadea,  15 
Hun(N.  K)2i8. 

(6)  Irregularity  or  fraud  in  election. — 
Where  the  people  vote  in  favor  of  an  issue 
of  bonds  to  a  railroad,  and  they  are  regu- 
larly issued,  the  city  issuing  them  cannot 
set  up  as  a  defense  when  sued  thereon  a 
lack  of  good  faith  in  the  city  officials  in  issu- 
ing the  call  for  the  election.  Meyer  v.  Mus- 
catine, I   Wall.  (U.S.)  384. 

Where  city  bonds  recite  that  they  were 
authorized  by  a  vote,  bona  fide  holders 
thereof  for  value  without  notice  cannot  be 
aflected  by  a  failure  to  have  a  special  regis- 
tration of  the  voters,  even  if  that  is  neces- 
sary. Judson  V.  Plattsburg,"^  Dill.  (U.S.) 
181. 

A  county  set  up  the  defense  to  a  suit  on 
its  bonds  issued  to  a  railroad  that  the 
election  purporting  to  authorize  their  is- 
suance was  a  sham,  "  as  shown  by  papers 
filed  with  the  clerk,"  and  reciting  various 
irregularities  "  which  would  appear  by  ref- 
erer-.e  to  certified  papers  sent  in  "  from  the 
votmg  precincts,  and  concluding  that  there 
was,  in  fact,  no  election  held.  Held,  bad  on 
demurrer;  the  answer  presented  no  issua- 
ble questions.  Chicot  County  v.  Sherwood, 
148  (/.  S.  529,  13  Sup.  Ct.  Rep.  695. 

(7) or  in  issuing  the  bonds. — It  is  no 


MUNICIPAL  AND   LOCAL  AID,  394, 395. 


ro9 


^There 
from 
a  de- 
e  act 
tional 
t  was 
stitu- 
o  tlie 
the 
>t  con- 
as  to 
It  the 
atton. 
i8[.— 
rdeau 


good  defense  to  a  suit  on  bonds  issued  to 
pay  for  stociv  suijscribed  for  by  a  county 
in  a  railroad  that  the  agent  authorized  to 
malie  such  subscription,  instead  of  sub-' 
scribing  for  tlie  stocic  himself,  purchased 
the  same  from  a  third  person.  Nor  is  it  a 
valid  defense  that  the  county  issued  its  own 
bonds  to  pay  such  subscription  instead  of 
negotiating  a  loan,  as  empowered  to  do  by 
the  statute.  Street  v.  Craven  County  Coin'rs, 
70  N.  Car.  644. 

The  111.  statute  providing  that  if  any  fraud 
or  circumvention  be  used  in  obtaining  the 
making  of  any  instrument  in  writing  for 
the  payment  of  money  or  property,  such 
fraud  may  be  pleaded  to  any  action  brought 
on  such  writing — held,  not  to  apply  where  it 
was  set  up  as  a  reason  for  ndt  paying  mu- 
nicipal railroad  aid  bonds,  that  the  company 
had  fraudulently  procured  the  appointment 
of  a  town  officer  to  fill  a  vacancy,  who 
signed  the  bonds  just  before  an  election. 
Oregon  v.  Jennings,  \\<)U.  S.  74,  7  Sup.  Ct. 
Rep.  124.— Following  Latham  v.  Smith, 
45  III.  25;  Shipley  v.  Carroll,  45  111.  285: 
Elliott  V.  Levings,  54  111.  213;  Maxc>  v. 
Williamson  County,  72  111.  207. 

(8)  Limit  of  taxation  exceeded. —  It  is  no 
defense  to  a  suit  on  bonds  issued  in  aid  of  a 
railroad  that  the  payment  of  the  same  will 
.'equire  the  levy  of  a  tax  greater  than  the 
state  constitution  allows,  even  if  the  con- 
stitutional limit  applies  to  the  case  at  bar, 
as  to  which  the  corrt  expresses  no  opinion. 
Moultrie  County  v.  Fairfield,  7  Am.  <&*  Efig. 
K.  Cas.  194,  105  [/.  S.  370.— Distinguish- 
ing Citizens'  S.  &  L.  Assoc,  v.  Topeka,  20 
Wall.  (U.  S.)  655. 

(9)  Inability  to  pay.  —  \\.  is"  no  defense  to 
the  payment  of  a  judgment  on  municipal 
bonds  that  the  city  issuing  them  is  deeply 
in  debt  and  cannot  afford  to  pay  all,  but  is 
willing  to  compromise  and  pay  a  per  cent, 
of  the  debt.  Neither  is  it  any  defense  that 
at  the  time  the  bonds  were  issued  it  was 
expected  that  the  railroad  to  which  they 
issued  would  pay  them,  but  it  became  insol- 
vent and  could  not  do  so.  liees  v.  Water- 
town,  19  Wall.  {U.  S.)  107. 

304.  Evidence. — Where  a  bank  sues 
on  town  bonds  issued  in  aid  of  a  railroad, 
evidence  is  not  admissible  on  the  part  of 
the  defense  to  show  that  the  president  of 
the  bank  was  a  director  of  the  railroad 
company,  and  had  a  controlling  interest 
therein,  and  said  in  addressing  a  public 
meeting  of  taxpayers  that  if  they  did  not 


assent  he  would  tear  up  the  track  which 
ran  through  the  town,  which  induced  some 
to  assent.  First  Nat.  Bank  v.  Arlington, 
16  Blatc/tf.  (U.S.)  57. 

Where  the  bonds  sued  on  purport  to  have 
been  assigned  to  plaintiff  by  the  vice-presi- 
dent and  secretary  of  the  company  by  order 
of  the  board  of  directors,  evidence  showing 
that  there  was  no  meeting  of  the  board  at 
the  time  at  which  it  was  alleged  the  bonds 
were  assigned  is  irrelevant  and  inadmissible. 
W/tittaker  V.  Johnson  County,  10  Iowa  161. 

Evidence  showing  that  the  consideration 
paid  by  the  holder  of  the  bonds  issued  by  a 
county  to  a  railroad  company  had  failed  is 
inadmissible  when  the  title  of  his  assignor 
is  not  impeached  by  the  pleadings.  W/iit- 
taker  v.  Johnson  County,  10  Iowa  161. 

395.  Biirdeu  of  proof. — If  in  a  suit 
on  county  bonds  issued  for  public  purposes 
any  proof  of  fraud  or  illegality  is  made,  the 
burden  is  on  the  holder  to  show  that  he 
gave  value.  Smith  v.  Sac  County,  1 1  Wall. 
{[/.  S.)  139.  —  Followed  in  Stewart  v. 
Lansing,  7  Am.  &  Eng.  R.  Cas.  225,  104 
U.  S.  505. 

Under  the  Missouri  practice,  in  a  suit  on 
county  bonds  issued  for  railroad  stock,  if 
the  due  execution  of  the  bonds  be  not 
denied  on  oath,  it  is  not  necessary  to  prove 
the  order  of  the  county  court  authorizing 
their  execution.  /■!alls  County  v.  Douglass, 
7  Am.  <S>»  Fng.  A'.  Cas.  212,  105  C/.  S.  728. 

The  rule  that  it  devolves  on  the  maker  of 
a  bond  to  show  the  want  of  power  to  issue 
it  has  no  application  where  the  maker  is  a 
trustee.  In  all  cases  where  the  bond  or 
other  instrument  purports  to  have  been 
issued  by  delegated  power,  and  where  it 
could  not  be  issued  without  such  delegation 
of  power,  it  devolves  upon  the  holder  to 
show  that  such  power  has  been  conferred 
before  he  can  recover.  Carpenter  v.  La- 
throp,  51  Afo.  483. 

In  an  action  upon  a  town  bond  issued 
under  N.  Y.  Act  of  1852,  ch.  375,  it  is  in- 
cumbent upon  the  plaintiff  to  show  affirnia- 
tively  that  the  written  assent  of  the  tax- 
payers, required  to  be  obtained  by  the  act, 
had,  in  fact,  been  obtained.  Starin  v.  Genoa, 
23  A',  l'.  439;  reversitig  29  Barb.  (A'.  Y.) 
442.— Disapproved  in  Venice  v.  Murdock, 
92  U.  S.  494.  Distinguished  in  Hoag  v. 
Greenwich,  133  N.  Y.  152.  Followed  in 
Horton  v.  Thompson,  71  N.  Y.  513;  Scipio 
V.  Wright,  loi  U.  S.  665.  Not  followed 
IN  People  ex  rel.  v.  Hulbert,  59  Barb.  446. 


*   I 


i"!. 
h 


710 


MUNICIPAL  AND   LOCAL  AID,  396, 397. 


A') 


I.  i'i 

n 

'3; 


Quoted    in    Lewis   v.    Bourbon    County 
Com'rs,  12  Kan.  i86. 

Plaintiff  brought  assumpsit  against  M. 
county  upon  certain  county  bonds,  part  of 
a  series  issued  to  a  railroad  company  on  a 
subscription  by  the  county  to  the  company's 
stoclc,  authorized  by  the  Pa.  Act  of  April  21, 
1846  (P.  L.  1850,  812),  and  its  supplemen- 
tary act  of  May  4,  1852  (P.  L.  605).  The 
defendant  pleaded  non-assumpsit.  Held: 
<i)  the  plaintiff,  having  presented  in  his  case 
in  chief  precisely  the  same  facts  before  the 
court  in  Mercer  County  v.  Pittsburgh  &  E. 
R.  Co.,  27  Pa.  St.  389,  wherein  said  bonds 
were  adjudged  illegal  and  void,  he  was  not 
entitled  to  recover,  in  the  absence  of  evi- 
dence that  he  was  an  innocent  purchaser  of 
the  bonds  for  value  and  without  notice  of 
their  illegality.  (2)  the  position  of  the  plain- 
tiff was  the  same  as  if  he  had  merely  made 
out  a  prima  facie  case  entitling  him  to  a 
verdict,  and  the  defendant  had  then  proved 
the  facts  upon  which  this  court,  in  the  case 
cited,  held  that,  under  the  recommenda- 
tion of  the  grand  jury,  the  county  commis- 
sioners had  no  authority  to  issue  the  bonds. 
Frick  V.  Mercer  County,  138  Pa,  St.  523,  21 
Atl.  Rep.  6. 

396.  Eiiforcenieiit  of  jiidgiiient.— 
The  taxes  and  public  revenues  of  a  city 
cannot  be  seized  on  execution  by  holders  of 
bonds  issued  by  the  city  in  aid  of  a  railroad, 
although  it  is  in  debt  and  has  no  means 
of  payment  oxcept  the  taxes  which  it  is 
authorized  tu  collect.  Peterkin  v.  New 
Orleans,  2  Woods  {U,  S.)  100. 

The  place  or  manner  in  which  the  rev- 
enues of  the  city  are  kept,  such  as  deposit- 
ing them  in  bank,  does  not  divest  them  of 
their  public  character  or  subject  them  to  be 
diverted,  at  the  suit  of  creditors,  from  the 
purposes  for  which  the  law  authorized  them 
to  be  collected.  Peterkin  v.  A'ew  Orleans, 
2  Woods  ( U.  S.)  100. 

After  judgment  on  a  mandamus  against  a 
municipal  corporation,  to  compel  payment 
of  railroad  aid  bonds  and  the  issuing  of  a 
peremptory  writ  commanding  the  defendant 
to  maKe  provisions  for  the  payment  of  the 
relator's  claim,  the  corporate  officers  have 
no  discretion  ;  their  only  duty  is  obedience 
to  the  process  of  the  court.  Com.  v.  Taylor, 
36  Pa.  St.  263. 

b.  To  Canct:! 

397.  When   an   action  will   lie.— 

Where  a  subscription  by  a  town  to  a  rail- 


road is  void  for  being  unauthorized  by  law, 
a  subsequent  act  of  the  legislature  cannot 
validate  the  same,  nor  authorize  certain 
officers  to  make  the  subscription ;  and  a  tax 
to  pay  interest  on  the  bonds  may  be  en- 
joined, and,  if  the  bonds  have  not  been 
negotiated,  the  company  may  be  required 
to  surrender  them.  Marshall  v,  Silliinan, 
61  ///.  218.— Distinguishing  Cowylll  v. 
Long,  15  111.  202. — Disapproved  in  Bolles 
V.  Brimfield,  120  U.  S.  759.  Quoted  in 
Choisser  v.  People  ex  rel.,  140  III.  21. 

Where  treasurers  have  in  their  possession 
moneys  belonging  to  a  county,  which,  unless 
restrained,  they  will  pay  to  the  holders  of 
bonds  of  such  county  issued  without  war- 
rant of  law,  and  void  in  the  hands  of  the 
holders,  equity  will  interfere  at  the  suit  of 
the  county  to  restrain  such  payment.  Mis- 
souri River,  Ft.  S.  &^  G.  R.  Co.  v.  Miami 
County  Com'rs,  12  Kan.  230. 

Where  a  county  board  issues  bonds  of  the 
county  without  being  properly  assembled, 
as  where  only  two  of  the  three  members 
meet  in  a  special  session  without  notice  to 
the  third,  the  county  may  maintain  an  action 
to  have  the  bonds  canceled.  Anderson 
County  Com'rs  v.  Paola  <S^  F.  R.  Co.,  20 
Kan.  534,  20  Am.  Ry.  Rep.  315  ;  adhering  to 
16  Kan.  302. 

A  township  issued  its  bonds  in  aid  of  a 
railroad,  and  with  the  consent  of  the  com- 
pany deposited  them  in  a  bank,  to  be  sur- 
rendered only  upon  the  joint  order  of  tlie 
township  trustee  and  a  contractor  of  the 
road  to  whom  they  were  to  be  paid;  and  the 
contractor  agreed  with  the  trustee  that 
the  bonds  were  not  to  be  delivered  until  all 
debts  foi'  labor  and  supplies  had  been  p;iid. 
The  contractor  failed  to  pay  all  such  debts, 
and  the  bonds  were  assigned,  and  the  as- 
signee filed  a  bill  to  compel  their  delivery. 
Held,  thai  the  assignee  obtained  no  title 
until  the  conditions  on  which  they  were 
deposited  were  complied  will;,  and  he  could 
not  compel  a  delivery.  Wilson  v.  Union 
Sav.  Assoc,  42  Fed.  Rep.  421. 

In  such  case  the  bonds  exceeded  the 
amount  which  the  township  was  authorized 
to  issue,  and  the  state  treasurer,  with  whom 
they  were  required  to  be  deposited,  was  in- 
duced to  surrender  them  upon  a  false  cer- 
tificate made  by  the  township  trustee  to  the 
effect  that  the  conditions  imposed  had  been 
complied  with,  the  railroad  company  having 
knowledge  of  the  fraud,  giving  a  receipt 
therefor  at  the  time,  and  consenting  that 


MUNICIPAL  AND   LOCAL  AID,  308. 


711 


thfiy  should  be  delivered  to  the  contractor. 
Held,  that  this  did  not  constitute  the  con- 
tractor an  innocent  purchaser,  and  the  town- 
ship was  entitled  to  have  tlie  bonds  sur- 
rendered and  canceled.  Wilson  v.  Union 
Sav,  Assoc,  42  Fed.  Rep.  421. 

308..   and   when    not.— After  a 

county  in  Kansas  had  voted  its  bonds  to  a 
railroad  for  stock  in  the  company  it  agreed 
to  sell  to  the  company  a  certain  part  of  the 
stock  if  the  latter  would  complete  the  road 
in  a  shorter  time  than  required.  Held,  a 
valuable  consideration  for  the  sale,  and  in 
the  absence  of  anything  to  prevent  the 
county  from  selling  and  the  company  from 
buying  the  stock  it  was  a  valid  transaction, 
and  nothing  in  it  to  work  a  cancellation  of 
an  equal  amount  of  the  county  bonds. 
Johnson  County  Comrs  v.  Thayer,  94  U.  S. 
631. 

Defendant  was  a  bona  fide  purchaser  for 
a  valuable  consideration  of  the  bonds  in 
question.  When  they  came  to  its  hands, 
seals  had  been  aflixed,  covering  the  scrolls 
on  them  when  issued.  This  it  appeared  had 
been  done  after  they  had  been  transferred 
by  the  railroad  company,  to  whom  they 
\v?re  delivered  by  the  commissioners,  and 
before  they  came  to  the  hands  of  defendant. 
Held,  that,  conceding  the  presumption  was 
that  the  seals  were  affixed  by  some  party 
interested,  and  that  the  burden  of  proof 
would  be  upon  the  one  seeking  to  enforce 
the  bonds  to  explain  the  alteration,  that  rule 
was  not  applicable  in  an  equitable  action  to 
have  the  security  canceled  because  of  the 
alteration  when  it  appeared  defendant  was 
in  no  sense  chargeable  with  mala  fides ;  that 
the  bonds  were  not  necessarily  invalidated 
by  the  addition  of  the  seals,  treating  it  as  a 
material  alteration,  and  it  could  not  be  pre- 
sumed that  the  alteration  was  fraudulently 
made ;  and  that  upon  the  facts  appearing  it 
did  not  entitle  plaintifl  to  the  relief  sought. 
Solon  v.  Williamsburgh  Sav.  Bank,  1 14  A^. 
Y.  122,  21  N.  E.  Rep.  168. 

After  the  amount  of  bonds  authorized 
was  issued  to  the  president  of  the  railroad 
company  he  surrendered  a  portion  of  them 
to  the  commissioners,  and  they  in  place 
thereof  delivered  to  him  a  like  amount  of 
bonds  of  larger  denominations  and  made 
payable  in  a  different  place,  of  which  those 
held  by  defendant  are  a  part.  The  returned 
bonds  were  destroyed  by  the  commissioners. 
Held,  that,  assuming  the  power  of  the  com- 
missioners  to  issue  bonds  was  exhausted 


with  the  original  issue,  yet,  as  they  repre- 
sented the  town  and  were  in  some  sense  its 
agents,  and  as  it  appeared  that  the  town  had 
for  several  years  paid  the  interest  coupons 
upon  them,  there  was  no  equity  to  support 
an  action  for  their  cancellation  against  a 
bona  fide  holder  who  had  purchased  in  re- 
liance upon  the  authority  with  which  the 
commissioners  were  lawfully  clothed.  Solon 
V.  Williamsburg h  Sav.  Bank,  114  A'.  Y, 
122,  21  .^V.  E.  Rep.  168.— Distinguishing 
Horton  v.  Thompson,  71  N.  Y.  513. 

Where  a  town  has  issued  bonds  in  aid  of 
the  construction  of  a  railroad,  and  the  ac- 
tion of  the  town  commissioners  in  reference 
thereto  has  been  reported  to  the  taxpayers, 
and  no  questions  raised  until  interest  has 
been  paid  upon  the  bonds  by  the  town,  for 
six  years  or  more,  to  holders  who  have  pur- 
chased them  in  good  faith,  and  in  ignorance 
of  any  defect  in  the  proceedings  under 
which  they  were  issued,  it  may  not  invoke 
the  aid  of  a  court  of  equity  to  procure  the 
cancellation  or  setting  aside  of  the  bonds, 
but  will  be  left  to  its  remedy  by  defense  to 
an  action  at  law  upon  the  bonds.  Cherry 
Creek  v.  Becker,  123  N.  Y.  161,  25  N.  E. 
Rep.  952,  33  N.  Y.  S.  R.  411  ;  affirming  18 
N.  Y.  S.  R.  485.  2  A^.  Y.  Supp.  514. 

Where,  in  proceedings  under  the  N.  Y. 
town  bonding  acts  (ch.  907,  Laws  of  1869; 
ch.  925,  Laws  of  1 87 1)  to  bond  a  town  in  aid 
of  a  railroad,  the  county  judge  acquired 
jurisdiction  to  determine  the  question  as  to 
whether  the  petition  presented  to  him  was 
signed  by  a  majority  of  the  taxpayers  of  the 
town — //^/</,  that  his  decision  thereon,  so  long 
as  the  same  has  not  been  reversed  for  error 
or  set  aside  for  irregularity,  is  conclusive,  and 
may  not  be  questioned  in  an  action  by  the 
town  to  have  its  bonds  set  aside  or  canceled. 
Cherry  Creek  v.  Becker,  123  A^  Y.  161,  25  A'. 
E,  Rep.  952,  33  A^.  Y.  S.  R.  411  ;  affirming 
18  N.  Y.  S.  R.  485,  2  A'.  Y.  Supp.  514. 

The  jurisdiction  of  a  county  judge  in  such 
proceedings  is  not  affected  by  the  fact  that 
the  judgment  rendered  by  him  was  based 
upon  two  separate  and  distinct  petitions,  so 
long  as  the  aggregate  amount  of  bonds  is 
not  to  exceed  the  statutory  limit.  Cherry 
Creek  v.  Becker,  123  A^.  K.  161,  25  A^.  £. 
Rep.  952,  33  A'.  Y.  S.  R.  411 ;  affirmittg  18 
A^.  Y.  S.  R.  485,  2  A^.   Y.  Supp.  514. 

Conceding  that  a  distinct  and  separate 
judgment  should  have  been  rendered  upon 
each  petition,  this,  at  most,  is  an  error  or 
irregularity  to   be  corrected   by  review  or 


Mir' 


712 


MUNICIPAL  AND   LOCAL  AID,  399, 400. 


motion.  Cherry  Creek  v.  Becker,  123  N.  Y. 
161,  25  N.  E.  Rep.  952,  33  A'.  J'.  S.  R.  411  ; 
affirming  \Z  N.  Y.  S.  R.  485,  2  A'.  Y.  Supp. 

514- 

The  plaintiiTs  filed  a  petition  showing  that 
under  certain  acts  of  the  general  assembly, 
and  upon  certain  conditions  prescribed  in 
those  acts,  the  trustees  of  Goshen  township 
ui-re  authorized  to  subscribe  for  stock  in  a 
railroad  company.  The  petition  stated  the 
mode  in  which  a  subscription  was  in  form 
made,  and  paid  for  in  bonds  of  the  town- 
ship, but  alleged  that  these  acts  were  not  in 
pursuance  of  the  law,  but  illegal,  and  created 
no  obligation  on  the  township.  It  appeared 
that  the  bonds  had  been  delivered,  and  had 
been  assigned  by  the  railroad  company,  with 
a  guaranty  of  their  payment,  and  that  the 
interest  accruing  upon  them  for  several 
years  had  been  paid  without  objection. 
Tliere  was  no  charge  of  fraud  against  the 
defendants.  Held,  that,  under  these  cir- 
cumstances, the  plaintiffs  were  not  in  a 
position  to  ask  the  affirmative  relief  of  a  re- 
scission of  the  contract  and  the  cancellation 
of  the  instruments  they  had  issued.  Goshen 
T/>.  v.  Springfield,  Mt.  V.  &•  P.  R.  Co.,  12 
Ohio  Sf.  624.— Approved  in  Hopple  v. 
Brown  Tp.    13  Ohio  St.  31 1. 

399.  Jurisdiction.— While  it  may  be 
that  a  court  of  chancery  has  no  jurisdiction 
to  declare  municipal  bonds  void  which  are 
held  by  non-residents  who  do  not  appear  in 
the  suit,  yet  the  court  has  jurisdiction  as  to 
any  such  holder  who  appears  and  contests 
the  bill  on  its  merits,  and  also  to  enjoin  the. 
local  officers  from  the  collection  of  taxes  to 
pay  such  bonds  or  the  interest  thereon. 
Welch  V.  Post,  5  Am.  &'  Ettg.  R.  Cas.  1 58, 

99///.  471. 

When,  by  the  laws  of  Michigan,  municipal 
bonds  deposited  with  the  state  treasurer  in 
aid  of  private  corporations  are  void,  a  suit  to 
have  them  given  up  to  be  canceled  will  not 
be  affected  by  proceedings  commenced  in 
a  court  of  the  United  States  by  a  stock- 
holder of  such  corporation  to  obtain  them 
for  the  corporation,  when  the  corporation 
itself  could  not  lawfully  sue  the  makers  or 
depositary  in  any  but  a  rtate  court,  and 
would  not  there  be  permitted  to  recover 
such  bonds.  Such  proceedings  are  a  mere 
evasion  of  jurisdiction,  and  it  will  not  be 
assumed  that  any  court  will  sanction  them. 
People  ex  rel.  v.  State  Treasurer,  24  Mich. 
468,  4  Am.  Ry.  Rep.  1 16. 


400.  Wlio  may  sue.— A  taxpayer  can 
maintain  a  suit  in  equity  to  annul  illegal 
acts  of  a  county  court  when  such  acts  will 
increase  the  taxation,  and  the  state  is  not  a 
necessary  party  to  such  suits.  So  held,  on  a 
petition  filed  by  certain  taxpayers  to  set 
aside  an  order  of  the  county  court  making  a 
subscription  to  the  capital  stock  of  a  rail- 
road. Newmeyer  v.  Missouri  &*  M.  R.  Co., 
52  Jfo.  81,  3  Am.  Ry.  /iV;>.  187.— Reviewing 
Sharpless  v.  Mayor,  etc.,  of  Phila..  21  Pa. 
St.  147;  Mayor,  etc.,  of  Baltimore  v.  Gill, 
31  Md.  375. 

Where  town  bonds  are  issued  in  aid  of  a 
railroad  by  commissioners  appointed  in  a 
proceeding  instituted  under  N.  Y.  Act  of 
1869,  ch.  907,  and  the  judgment  appointing 
the  commissioners  is  void  for  want  of  juris- 
diction, a  taxpayer  of  the  town  may  main- 
tain an  action,  under  the  act  of  1872,  ch. 
161,  to  restrain  the  negotiation  or  payment 
of  the  bonds,  and  to  compel  them  to  be  sur- 
rendered and  canceled.  Aletzger  v.  Attica 
&•  A.  R.  Co.,  79  A'.  Y.  171.— Following 
Ayersz/.  Lawrence,  59  N.  Y.  192. — Distin- 
guished IN  Hills  V.  Peekskill  Sav.  Bank, 
101  N.  Y.  490,  5  N.  E.  Rep.  327.  Followed 
in  Rich  V.  Menu  Tp.,  134  U.  S.  632,  10  Sup. 
Ct.  Rep.  610.  Reviewed  in  Calhoun  v. 
Millard,  121  N.  Y.  69,  24  N.  E.  Rep.  27,  30 
N.  Y.  S.  R.  759- 

Whether  a  single  taxpayer  may  maintain 
an  action  againsi  a  raihoad  company  in  his 
own  behalf  and  that  of  other  taxpayers  sim- 
ilarly interested  to  have  a  subscription  by 
his  town  to  the  stock  of  a  railroad  adjudged 
void,  and  tlie  bonds  issued  by  the  town  in 
payment  of  such  subscription  canceled,  not 
decided.  Round  v.  Wisconsin  C.  R.  Co.,  ^^ 
Wis.  543. 

A  county  had,  under  a  by-law  passed  in 
pursuance  of  35  Vict.  c.  66,  §  15,  issued 
debentures  to  the  amount  of  $300,000  to 
aid  in  the  construction  of  a  railway,  but  by 
reason  of  the  neglect  of  the  company  to 
commence  the  construction  of  the  railway 
within  the  time  limited,  their  charter  had 
become  forfeited,  and  the  by-law  under 
which  the  debentures  had  been  issued  had 
therefore  become  void,  whereupon  one  of 
the  townships  which  had  joined  in  the  pe- 
tition for  the  passing  of  the  by-law  filed  a 
bill  against  the  railway,  the  county,  and 
trustees  of  the  debentures,  seeking  to  re- 
strain the  trustees  from  selling  or  parting 
with  the  debentures  and  to  have  the  same 


1 


■ra 


MUNICIPAL  AND   LOCAL   AID,  401,402. 


713 


handed  back  to  the  county.  Held :  (i)  that 
the  township  had  not  any  interest  to  main- 
tain such  a  suit :  (2)  that  tiie  corporation 
of  the  county  was  tlie  proper  party  to  insti- 
tute proceedings.  West  Gwillitnbury  v. 
Hamilton  &•  N.  IV.  A'.  Co.,  23  Grant 's  C/i. 

401.  Parties  defendant.— Municipal 

aid  bonds  deposited  with  the  state  treas- 
urer under  a  law  held  unconstitutional  are 
in  his  official  custody  until  delivered  up, 
and  he  is  responsible  for  their  safe  keeping 
and  return  to  the  makers  when  demanded. 
People  ex  rel.  v.  State  Treasurer,  24  Mich. 
468,  4  Am.  Ry.  Rep.  116. 

The  president  of  a  railroad  company  who 
receives  county  bonds  which  have  been  is- 
sued in  violation  of  law  cannot  claim  to  be 
an  innocent  purchaser  after  he  has  passed 
them  to  a  creditor  with  notice  and  has  taken 
them  back  as  an  individual  purchaser;  and 
the  board  of  supervisors  may  maintain  a 
bill  to  enjoin  him  from  negotiating  then'., 
and  to  compel  liim  to  deliver  them  to  be 
canceled.  Madison  County  Sup'rs  v.  Pax- 
ton,  57  Miss.  701. — Followed  in  Madison 
County  Sup'rs  v.  Brown,  29  Am.  &  Eng. 
Corp.Cas.  157,  67  Miss.  684,  7  So.  Rep.  516. 

In  a  suit  by  taxpayers  of  a  county  to  an- 
nul proceedings  of  the  county  court  author- 
izing the  issuance  of  bonds  of  the  county, 
and  to  enjoin  the  collection  of  taxes  to  pay 
interest  on  such  bonds,  the  bondholders  are 
necessary  parties.  Board  v.  Texas  Sf  P.  R. 
Co.,  46  Tex.  316,  13  Am.  Ry.  Rep.  259. 

The  allegation  that  county  bonds  had 
been  fraudulently  issued  and  delivered  to 
the  railroad  company,  and  by  it  had  been 
passed  to  parties  with  full  notice  of  the 
fraud,  will  not  obviate  the  necessity  of 
bringing  the  bondholders  before  the  court 
as  parties.  Board  v.  Texas  &*  P.  R.  Co., 
46  Tex.  316,  i^  Am.  Ry,  Rep.  259. 

To  confer  power  to  annul  such  bonds,  the 
liolders  should  be  parties,  and  the  instru- 
ments brought  under  the  control  of  the 
court  so  as  to  await  its  action  upon  their 
validity,  etc.  Courts  do  not  sit  to  deter- 
mine abstract  principles,  but  to  decide  prac- 
tical issues  and  to  settle  issues  ia  which 
the  litigants  have  a  substantial  or  imme- 
diate interest.  Board  v.  Texas  6-  P.  R.  Cot, 
46  Tex.  316,  13  Am.  Ry.  Rep.  259. 

Nor  will  the  court  as  against  the  railroad 
annul  the  bonds  as  against  the  county,  and 
adjudge  that  payment  therefor  be  provided 
by  the  railroad  ;  such  action  would  impair 


the  rights  of  the  bond  liolders.  Board  v. 
Texas  &•  P.  R.  Co.,  46  Tex.  316,  13  Aui.  Ry. 
Rep.  259. 

It  was  charged  that  a  railroad  company 
had  procured  fraudulently  a  note  secured 
by  a  mortgage,  and  had  transferred  it  to  a 
city  to  secure  the  latter  against  an  issue  of 
bonds  in  aid  of  the  road.  A  bill  was  filed 
charging  that  the  bonds  were  invalid,  and 
asking  tliat  the  note  and  mortgage  be  deliv- 
ered to  the  maker  to  be  canceled,  but  it 
appeared  that  the  bonds  were  negotiable, 
underdue,  and  in  the  hands  of  non-resident 
purchasers  in  good  faith  without  notice. 
Held,  that,  in  order  to  make  the  proceed- 
ings effectual  to  protect  the  city,  the  hold- 
ers of  the  bonds  must  not  only  be  parties  in 
a  general  sense,  but  the  court  must  have 
jurisdiction  of  their  persons,  so  that  any 
judgment  of  the  court  might  be  enforced. 
Bur  hop  V.  Roosevelt,  20  Wis.  338. 

40a.  Plea«ling.— Under  Texas  Act  of 
April  12,  i87i,the  county  court  is  made  the 
judicial  tribunal  to  determine  the  result  of 
an  election  ;  and  where  such  court  officially 
declares  tiiat  a  railroad  company  has  com- 
plied with  the  terms  of  a  proposition  to  is- 
sue county  bonds  thereto,  it  acts  as  an  agent 
of  the  county  in  doing  so,  and  after  col- 
lecting a  tax  for  the  payment  of  such  bonds 
an  allegation  that  the  company  has  not 
complied  with  such  proposition  is  no  ground 
for  canceling  the  bonds.  Anderson  County 
V.  Houston  &*  G.  N.  R.  Co.,  $2  Tex.  228. 

An  action  was  commenced  by  a  town  to 
compel  the  surrender  and  cancellation  of 
certain  bonds  which  the  town  had  issued  in 
aid  of  a  railroad,  and  the  defendants  in- 
sisted that  the  want  of  notice  of  any  defect 
in  the  bonds  and  of  good  faith  in  the 
purchase  being  set  up  in  the  answer,  in 
response  to  allegations  in  the  complaint, 
and  no  proof  being  given  on  the  subject, 
it  must  be  taken  as  true,  and  the  defend- 
ants treated  as  dona  fide  holde-s  without 
notice.  Held,  that  this  rule  of  pleading 
does  not  apply  in  the  practice  adopted  by 
the  New  York  Code.  The  allegations  of 
the  answer  are  to  be  treated  either  as  a  de- 
nial of  the  allegations  of  th^  complaint  or 
as  a  matter  of  affirmative  defense.  Venice 
V.  Breed,  65  Barb.  (,N.  Y.)  597,  i  T.  &*  C. 
130. 

In  such  case,  if  the  allegation  in  the  com- 
plaint is  not  proved,  the  defendant  gets  the 
benefit  of  the  denial  by  forcing  the  plain- 
tiff to  attempt  proof  of  the  fact  alleged,  and 


I 

9 


1 


714 


MUNICIPAL  AND   LOCAL  AID,  403-405. 


if  it  is  not  made,  the  (iefendant  has  the  rigiit 
to  claim  that  his  allegation  is  established. 
When  the  answer  sets  up  matter  by  way  of 
affirmative  defense,  he  must  prove  it,  or  he 
gets  no  benefit  from  it.  Venice  v.  Breed, 
65  Barb.  (iV.  Y.)  597,  i  T.  &-  C.  130. 

40:i.  Burden  of  proof.— The  county 
commissioners  having  determined  that  the 
conditions  precedent  to  a  railroad  subscrip- 
tion had  been  complied  with,  and  having 
issued  to  the  railroad  company  county 
bonds  in  payment  therefor,  in  an  action  by 
taxpayers  of  the  county  to  compel  the  can- 
cellation of  these  bonds  upon  the  ground 
that  the  conditions  precedent  had  not  been 
complied  with,  the  burden  of  proof  is  upon 
the  plaintiffs.  They  must  show  in  such 
action  that  the  county  commissioners  acted 
wiiiiout  authority  or  exceeded  it.  Connor 
V.  Green  Pond,  IV.  &'  B.  R.  Co.,  23  So.  Car. 
427. 

404.  Effect  of  laches  on  part  of 
coiiiplaiuaut. — The  equitable  remedy  for 
cancellation  of  town  bonds  may  be  refused 
by  reason  of  long  delay  and  acquiescence 
on  the  part  of  the  town  and  its  taxpayers, 
accompanied  by  frequent  acts  recognizing 
their  validity,  although  the  delay  in  bringing 
the  action  has  not  continued  for  the  full 
statutory  period  of  equitable  actions.  Cal- 
houn  v.  Millard,  \z\  N.  V.  69,  24  A''.  E.  Rep. 
27,  30  A'.  Y.  S.  R.  759;  affirming  16  N.  Y. 
S.  A'.  46,  48  Hun  617,  w<?/«.— Reviewing 
Metzger  v.  Attica  &  A.  R.  Co.,  79  N.  Y.  171. 

Where  no  attempt  is  made  to  enforce  the 
payment  of  bonds  of  a  railway  company 
wrongfully  delivered  for  other  than  a  cor- 
porate purpose,  a  delay  of  eleven  and  a 
half  years  in  the  bringing  of  a  suit  by  stoclc- 
holders  to  cancel  and  set  aside  such  bonds 
and  the  deed  of  trust  given  to  secure  their 
payment  is  not  a  bar  to  the  relief  sought. 
Chicat;o  v.  Cameron,  1 20  ///.  447,  11  A'.  E. 
Rep.  899. 

A  county  judge  found  that  a  majority  of 
the  taxpayers  of  a  town  had  signed  a  peti- 
tion asking  that  bonds  be  issued  in  aid  of  a 
railroad,  and  the  bonds  were  issued  to  run 
for  thirty  years,  and  passed  into  the  hands 
of  bona  fide  purchasers.  For  more  than 
nine  years  the  town  collected  a  tax  and 
paid  the  interest  on  the  bonds,  and  also 
voted  a  tax  to  retire  a  part  of  the  bonds, 
took  steps  towards  the  sale  of  its  stock  in 
the  road,  but  took  no  steps  to  deny  their 
validity  for  more  than  ten  vf^ars.  The  road 
was  never  built,  though  thv.  company  spent 


more  than  the  amount  of  the  bonds  in  grad- 
ing, and  it  was  finally  sold  at  a  foreclosure 
sale.  Held,  that  the  action  of  the  town  was 
an  affirmance  of  the  validity  of  the  bonds, 
and  a  bill  filed  to  have  such  bonds  delivered 
up  and  canceled  was  properly  dismissed. 
Calhoun  v.  Millard.  121  A'.  Y.  69,  24  A'.  E. 
Rep.  27.  30  A'.  Y.  S.  R.  759;  affirming  16 
A'.  Y.  S.  R.  46.  48  Hun  617,  mem. 

Zm.  TAXATIOR. 

405.  Decisions  of  federal  courts. 

— (i)  The  power  to  tax. — A  railroad  is  so 
far  for  a  public  use  as  to  authorize  a  state 
to  impose  taxes  for  its  use,  a  i  to  allow  it 
to  exert  the  right  of  eminent  domain, 
though  it  be  owned  by  a  private  corpora- 
tion. Olcott  V.  Fond  du  Lac  County  Sup'rs, 
16  Wall.  (I/.  S.)  678,  2  Am.  Ry.  Rep.  115.— 
Quoted  in  People  v.  New  York  C.  &  H. 
R.  R.  Co..  9  Am.  &  Eng.  R.  Cas.  i,  3  Civ. 
Pro.  (N.  Y.)  II.  2  McCar.  345. 

(2)  Such  power  implied  from  power  to  sub- 
scribe and  issue  bonds. — When  the  legislature 
confers  the  power  on  a  municipal  corpora- 
tion to  subscribe  for  stock  in  railroads,  and 
to  issue  its  bonds  therefor,  the  power  to 
levy  and  collect  taxes  to  pay  the  bonds  is 
also  conferred,  unless  the  law  conferring 
the  power,  or  some  general  law,  clearly 
shows  the  contrary.  Ralls  County  Court  v. 
United  States,  105  U.  S.  733.— Distin- 
guishing United  States  v.  Macon  County, 
99  U.  S.  591.  Following  Citizens'  S.  & 
L.  Assoc.  V.  Topeka,  20  Wall.  (U.  S.)  655  ; 
United  States  v.  New  Orleans,  98  U.  S.  381. 
—Followed  in  Scotland  County  Court  v. 
United  States  ex  rel.,  140  U.  S.  41  .—Citizens' 
S.  &*  L.  Assoc,  v.  Topeka,  20  Wall.  (U.  S.) 
655.— Distinguished  in  Moultrie  County 
V.  Fairfield,  105  U.  S.  370.  Followed  in 
Ralls  County  Court  v.  United  States,  105 
U.  S.  Til.— Black  v.  Cohen,  52  Ga.  621. 
Kentucky  Union  R.  Co.  v.  Bourbon  County, 
85  Ky.  98,  2  S.  W.  Rep.  687. 

A  law  giving  a  county  the  right  to  sub- 
scribe to  the  stock  of  a  railroad,  and  issue 
bonds  th'jrefor,  "  and  to  take  proper  steps 
to  protect  the  interest  and  credit  of  the 
county."  i  uplies  the  authority  to  levy  taxes 
to  pay  the  bonds  and  interest,  though  it  ex- 
ceed the  regular  tax  rate  fixed  by  the  gen- 
eral law  of  the  state.  Scotland  County  Court 
V,  United  States  er  rel.,  i^o  U.  S.\\,i\  Sup. 
Ct.  Rep.  697.  — Following  Ralls  County 
Cou.t  V.  United  States,  105  U.  S.  733. 


MUNICIPAL   AND   LOCAL  AID,  406. 


715 


(3)  Construction  of  statutes.  —  Wlicre  a 
statute  authorizes  a  municipality  to  levy  u 
special  tax  each  year  to  pay  interest  on  its 
bonds,  it  authorizes  a  tax  to  pay  interest 
for  any  time  that  the  bonds  may  run  after 
they  are  due,  as  well  as  to  pay  the  annual 
interest  before  they  are  due.  Peterkin  v. 
New  Orleans,  2  Woods  (U.  S.)  100. 

A  charter  of  a  railroad  company  author- 
ized municipalities  to  subscribe  to  its  stock 
and  to  issue  bonds  in  payment,  and  author- 
ized a  levy  of  a  tax  of  not  more  than  one 
twentieth  of  one  per  cent,  per  annum  on 
the  property  of  the  municipality  to  pay  the 
same.  Subsequently  an  act  was  passed 
which  authorized  such  subscriptions,  and 
provided  generally  how  they  might  be  made, 
but  contained  no  provision  limiting  the 
taxes  to  be  levied.  Ne/d,  that  where  bonds 
were  issued  to  the  road  under  tlie  latter  act, 
a  levy  of  a  tax  necessary  for  the  purpose 
must  be  made.  United  States  ex  rel.  v. 
Howard  County  Court,  i  McCrary  (U.  S.) 
218,  2  Fed.  Rep.  i. 

(4)  Railroad  property  taxable. — One  rail- 
road company  may  be  taxed  to  assist  in 
paying  aid  voted  to  anothet-  company,  al- 
though when  the  statute  was  passed  author- 
izing the  aid  the  other  company  was  exempt 
from  taxation  for  such  purpose,  where  the 
statute  making  the  exemption  has  been  re- 
pealed. Baltimore  &*  O.  R.  Co.  v.  Jefferson 
County,  29  Fed.  Rep.  305. 

(5)  Collection  and  payment. —  A  sheriff 
who  is  a  tax  collector,  and  whose  duty  it  is 
to  collect  a  tax  which  has  been  imposed  by 
county  authorities  for  the  benefit  of  a  rail- 
road company,  has  no  right  to  decide 
whether  the  tax  has  been  properly  levied  or 
not,  nor  to  settle  disputes  between  taxpay- 
ers, the  county,  and  the  company.  If  he  is 
directed  by  the  proper  authorities  to  pay 
over  the  money,  it  is  his  duty  to  do  so. 
Bell  V.  Mobile  &*  O.  R.  Co.,  4  Wall.  (  U.  S.) 
598. 

(6)  W/ten  resort  may  be  had  to  the  general 
tax  fund. — A  county  issued  its  bonds  in 
payment  of  stock  in  a  railroad  under  a  law 
providing  for  a  tax  to  pay  them  of  one 
twentieth  of  one  per  cent,  of  the  taxable 
property  of  each  year.  Held,  that  the  hold- 
ers of  bonds  were  entitled  to  have  paid  from 
the  general  funds  of  the  county  any  balance 
remaining  after  exhausting  the  special  tax. 
United  States  ex  rel.  v.  Clark  County  Court, 
96  U.  S.  211.— Distinguishing  Carroll 
County  Sup'rs  v.  United  States,  18  Wall. 


(U.  S.)  71 ;  State  ex  rel.  v.  Shortridge,  56 
Mo.  129.— Adhered  10  in  Knox  County 
Court  V.  United  States  ex  rel.,  15  Am.  & 
Eng.  R.  Cas.  624,  109  U.  S.  229,  3  Sup.  Ct. 
Rep.  131.  Disapproved  in  State  ex  rel.  v. 
Macon  County  Court,  68  Mo.  2q.  Fol- 
lowed IN  Macon  County  v,  Huidekoper, 
134  U.  S.  HZ.— Macon  County  v.  Huidekopir, 
134  U.  S.  332,  10  Sup.  Ct.  Rep.  491.— ['"oL- 
LovviNG  United  States  v.  Clark  County,  96 
U.  S.  211 ;  Knox  County  Court  v.  United 
States  ex  rel.,  109  U.  S.  229. 

(7)  Diversion  of  proceeds  of  tax. — Where  a 
city  is  required  to  levy  an  annual  tax  to  pay 
interest  on  bonds  which  it  has  issued  in  aid 
of  a  railway,  and  has  levied  and  collected 
the  tax,  it  has  no  right  to  divert  the  fund  to 
other  purposes,  and  a  bondholder  may  en- 
join it  from  doing  so.  Ranger  v.  New  Or- 
leans, 2  Woods  {U.  S.)  128. 

And  when  a  portion  of  such  tax  for  cer- 
tain years  is  in  arrears,  an  injunction  to  pre- 
vent the  corporation  from  receiving  pay- 
ment in  scrip  of  the  city  should  be  refused, 
where  it  appears  that  the  taxes  cannot  be 
collected  at  all  unless  the  scrip  is  taken. 
Ranger  v.  New  Orleans,  2  Woods  ( U.  S.)  128. 

400.  Alabama.— Although  the  acts  of 
1858  and  1859  only  authorized  city  authori- 
ties to  aid  a  railroad  company  in  one  of  two 
ways,  i.  e.,  either  Dy  liiiect  taxation  or  by 
the  issue  of  city  bonds,  as  might  he  deter- 
mined by  the  vote  of  the  citizens,  and  not 
in  both  ways,  yet  said  city  authorities  were 
thereby  clothed  with  the  implied  power,  in 
the  event  that  the  citizens  voted  in  favor  of 
the  issue  of  bonds,  to  levy  a  special  tax  to 
provide  for  the  payment  of  the  bonds  with 
interest  as  they  fell  due,  and  this,  moreover, 
was  expressly  enjoined  on  them  as  a  duty  by 
the  13th  section  of  the  act  of  1843.  Gibbons 
V.  Mobile  &•  G.  N.  R.  Co.,  36  Ala.  410. 

Where  a  statute  (under  which  a  county 
issued  bonds  a  series  of  which  fell  due  an- 
nually for  a  period  of  ten  years)  provided 
that,  "  as  soon  as  "  certain  prescribed  condi- 
tions were  complied  with,  "  and  annually 
thereafter  for  a  period  of  ten  years,"  the 
court  of  county  commissioners  should  levy 
and  assess  a  tax  sufficient  to  pay  the  series 
falling  due  each  year,  the  failure  to  assess 
and  collect  the  tax  within  the  time  pre- 
scribed did  not  thereafter  limit  or  destroy 
the  power  to  collect  and  levy  the  tax,  but 
that  power  existed  as  long  as  the  legal  obli- 
gation to  pay  the  debt  subsisted.  Limestone 
County  Com'rs  Court  v.  Rather,  48  Ala.  433, 


I' 
V, 


,1       I 


■^ 


S  «1 


^n^^miiiv 


716 


MUNICIPAL   AND    LOCAL   AID,  407-400. 


M 


Moneys  collected  by  the  county  treasurer 
l)y  way  of  taxes  lo  pay  the  interest  on  rail- 
road bonds  issued  by  the  county  under  the 
general  law  approved  December  31,  1868,  by 
which  counties,  cities,  and  towns  were  au- 
thorized to  subscribe  to  the  capital  stock  of 
railroad  companies  (Sess.  Acts  1868,  p.  $14), 
are  moneys  belonging  to  the  county,  which 
it  is  his  duty  to  receive,  keep,  and  disburse, 
according  to  law,  and  the  sureties  on  his  of- 
ficial bond  are  liable  for  any  default  in  re- 
gard to  such  moneys.  Lewis  v.  Lee  County, 
66  Ala.  480. 

The  county  treasurer  is  not  entitled  to 
commissions  on  the  funds  so  collected,  nor 
can  he  claim  that  the  money  should  pass 
through  his  hands.  Barbour  County  v. 
Clark,  50  Ala.  416. 

The  grant  of  power  to  the  city  council, 
the  election  having  resulted  in  favor  of  aid 
to  the  railroad,  "  to  levy  su.h  tax  as  may  be 
necessary  upon  the  real  and  personal  prop- 
erty in  said  city  "  is  a  grant  of  legislative 
or  governmental  power,  rather  th.m  corpo- 
rate power;  and  if  it  be  held  to  require  the 
imposition  of  a  tax  on  all  the  property  in 
tlie  city,  both  real  and  personal,  without  any 
discretionary  power  to  discriminate  between 
them,  a  tax  levied  on  real  estate  alone 
would  not  be  void :  the  omission  or  failure 
to  tax  personal  property  also  equally  with 
real  property  would  be  a  mere  error  or  ir- 
regularity, for  which  a  taxpayer,  if  thereby 
injured,  would  have  an  adequate  remedy  by 
mandamus  before  payment  of  the  taxes  as- 
sessed against  him.  Winter  v.  Montgomery 
City  Council,  7  Am.  <S«»  Eng.  R.  Cas,  307,  65 
Ala.  403.  Winter  v.  Montgomery  City 
Council,  79  Ala.  48 1 . 

Where  a  county  had  subscribed  to  a  rail- 
roiid  under  the  law  of  1868,  and  judgment 
has  been  obtained  against  it  by  a  holder  of 
its  bonds,  the  collection  of  taxes  for  general 
state  and  county  purposes  is  to  be  made  as 
under  former  laws,  while  another  remedy, 
less  prompt  and  effective,  is  provided  for 
the  collection  of  the  special  railroad  tax;  and 
hence  sections  404-407  of  the  Code,  in  their 
application  to  a  county  which  liad  become 
liable  on  its  subscription  to  a  railroad  prior 
to  their  adoption,  are  unconstitutional,  and 
the  tax  collector  cannot  claim  the  right  to 
give  a  bond  conditioned  for  the  collection 
of  the  general  taxes  only.  Edwards  v. 
Williamson,  16  Am.  Sf  Eng.  K.  Cas.  668,  70 
Ala,  145. 

407.    Arkansas.  —  Where    municipal 


bonds  are  issued  under  a  statute  authorizing 
the  imposition  of  a  tax  to  pay  the  same,  the 
law  becomes  a  part  of  the  contract,  and  it 
is  protected  by  that  provision  of  the  con- 
stitution of  the  United  States  which  pro- 
hibits the  slates  from  enacting  any  law 
which  would  impair  the  obligation  of  con- 
tracts,    lirodie  v.  McCabe,  33  Ark.  690. 

The  bondholder  is  entitled  to  look  to  the 
taxing  provision  as  part  of  his  security,  and 
may  demand  that  it  shall  be  exercised  in  his 
favor,  and  the  measure  of  his  right  is  de- 
termined by  the  constitutional  limit  upon 
the  power  to  authorize  taxation,  lirodie  v. 
McCabe,  33  Ark.  690. 

408.  Cnlil'uruia.— The  charter  of  the 
city  of  Placerville  (St.  1859,  77)  does  not 
authorize  the  authorities  of  the  city  to  levy 
and  collect  a  tax  for  making  a  survey  of  a 
railroad  route  from  that  city  to  Folsom. 
The  argument  that  a  railroad  extending 
from  or  to  the  city  is  as  much  a  means  of 
municipal  benefit  as  a  street  in  the  city,  gas, 
or  waterworks,  and  that  the  length  or  ex- 
tent of  the  road  is  not  important  in  this  re- 
spect, the  municipal  character  of  the  work 
depending  on  its  adaptation  to  the  benefit 
of  the  municipality,  is  conclusively  met  by 
the  fact  that  whether  this  be  a  municipal 
work  or  not,  it  is  not  a  work  authorized  by 
the  charter,  neither  expressly  nor  by  neces- 
sary implication.  Douglas  \.  Mayor,  etc.,  oj 
Placerville,  18  Cal.  643. 

The  balance  of  the  railroad  interest  tax  col- 
lected under  section  6  of  the  act  of  April  25, 
1863,  remaining  after  payment  of  the  inter- 
est on  bonds  given  by  the  city  and  county 
of  Sacramento  for  subscription  to  the  stock 
of  the  Central  Pacific  railroad  must  be  ap- 
plied to  the  redemption  of  such  bonds,  as 
required  by  the  act,  and  such  balance  could 
not  in  any  case  be  transferred  to  the  re- 
demption fund  until  all  such  bonds  had 
been  redeemed.  Crocker  v.  Wolson,  30  Cal. 
663. 

401).  Floritla. — When  a  county  issues 
its  bonds  under  a  statute  which  provi<ics 
the  time  and  manner  of  discharging  tliem, 
as  by  levying  a  special  tax,  the  legislature 
cannot,  by  repealing  the  act  or  changing  it, 
limit  the  amount  of  taxes  to  be  levied  to  a 
rate  insufficient  to  raise  the  amount  neces- 
sary' to  meet  tlie  obligation  unless  other 
adequate  means  are  provided.  Such  a  law 
impairs  the  nblination  of  the  contract.  Co- 
luml/iit  Count V  Loiii'rs  v.  King,  13  Fla.  451. 
— QUOTINC  Gclpcke  r-.  Dubuque,  i    Wall. 


"m 


MUNICIPAL   AND   LOCAL  AID,  410. 


717 


(U.  S.)  I7S  ;  Ohio  L.  I.  &  T.  Co.  v.  Debolt, 
i6  How.  (U.  S.)  432.  Reviewing  State  ex 
rel.  V.  Wapello  County,  13  Iowa  390. 

The  depreciation  of  the  railroad  stock  in 
the  possession  of  Columbia  or  Bradford 
county  since  1861,  for  the  purchase  of  which 
the  original  bonded  indebtedness  was  cre- 
ated, constitutes  no  valid  reason  for  the  re- 
fusal on  the  part  of  Baker  county  to  pay  its 
proportion  of  the  indebtedness.  Catiova  v. 
State  ex  rel.,  18  Fla.  512. 

4 10.  Illluoi!*.— (i)  Power  to  tax,  a>ul 
•who  may  exercise  it. — Taxes  levied  by  town- 
ship authorities  to  aid  in  the  construcMon 
of  a  railroad  are  for  a  corporate  purpose, 
and  in  this  respect  the  distinction  between 
a  donation  in  aid  of  a  railroad  and  a  sub- 
scription to  the  capital  stock  of  the  corpora- 
tion is  more  shadowy  than  real.  The  power 
is  granted  in  consideration  of  the  public 
benefits,  and  these  are  as  great  in  one  case 
as  in  the  other.  Chicago,  D.  Sf  V.  R.  Co. 
V.  Smith,  63  ///.  268,6  Am.  Ry.  Rep.  221.— 
Quoting  Taylor  v.  Thompson,  42  111.  9. 

Where  bonds  have  been  issued  by  a 
township  to  a  railroad  company,  under  an 
election  held  without  authority  of  law, 
neither  the  state  nor  the  local  oflicers  have 
authority  to  cause  a  tax  to  be  levied  for  the 
payment  of  the  principal  or  interest  of  such 
bonds,  and  they  •  iy  be  enjoined  from  do- 
ing so.     Rutz  V.  Calhoun,  100  ///.  392. 

Railroad  bonds  of  a  town  due,  and  inter- 
est on  the  same  or  on  other  like  bonds,  are 
claims  against  the  town  with  which  a  town 
meeting  has  nothing  to  do,  and  for  the  pay- 
ment of  which  it  has  no  authority  to  order 
a  tax  levied.  St.  Louis,  R.  I.  &•  C.  R.  Co.  v. 
People  ex  rel.,  147  ///.  9,  35  N.  E.  Rep.  228. 

Town  officers,  under  the  township  system, 
making  an  appropriation  to  a  railroad,  in 
pursuance  of  law,  upon  a  vote,  are  "  corpo- 
rate authorities  "  of  a  municipal  corporation, 
who  are  authorized  to  levy  taxes  under  the 
constitution  of  1848.  Chicago,  D.  &*  V.  R. 
Co.  V.  Smith,  62  ///.  268,  6  Am.  Ry.  Rep.  221. 
—Distinguished  in  Middleport  v.  JEtna. 
Life  Ins.  Co.,  82  111.  562. 

The  state  auditor  has  the  rightful  au- 
thority under  both  the  old  and  the  new 
constitutions  to  levy  and  certify  the  taxes 
of  municipal  corporations  to  meet  the  in- 
terest on  their  bonds  which  are  duly  regis- 
tered in  his  office  under  the  act  of  April  16, 
1869.    Decker  v.  Hughes,  68  ///.  33. 

(2)  Construction  of  statutes.  —  The  new 
constitution,  art.  9,  §  8,  which  prohibits  any 


county  from  levyiiij^  a  lax  exceeding  seven- 
ty-live cents  oii  ilie  one  hundred  dollars* 
valuation,  does  not  apply  to  a  tax  levied  to 
pay  interest  on  bunds  given  in  aid  of  a  rail- 
way voted  before;  the  ado|)tion  of  that  in- 
strument, although  the  subscription  and 
the  issue  of  the  bonds  occuired  after  its 
adoption.  Chiniquy  v.  People  ex  rel.,  78  ///. 
570. 

Where,  prior  to  the  adoption  of  the  pres- 
ent constitution,  a  county  was  authorized 
by  law  to  issue  its  bonds  in  aid  of  the  con- 
struction of  railways,  bearing  interest,  with 
power  to  levy  such  taxes  as  were  necessary 
to  pay  the  accruing  interest  and  the  princi- 
pal when  due,  and  did  issue  such  bonds,  a 
subsequent  limitation  of  the  taxing  power 
of  the  county  which  would  operate  to  de- 
prive it  of  the  means  to  meet  its  obligations 
would,  as  to  such  outstanding  indebtedness, 
be  void,  as  impidring  the  obligation  of  con- 
tracts. Peoria,  D.  &•  E.  R.  Co.  v.  People 
ex  rel.,  116  ///.  401,  6  A'.  E.  Rep.  497. 

(3)  Enforcement,  generally.  —  Where  the 
bonds  of  a  county  are  shown  to  have  been 
delivered  in  payment  of  a  subscription  of 
the  county  to  the  capital  stock  of  a  railroad 
company,  or  as  a  donation  to  such  compa- 
ny, to  aid  in  the  construction  of  a  railway, 
in  1873,  but  nothing  is  shown  as  to  the  dis- 
position of  them  on  application  for  judg- 
ment in  1891  for  taxes  of  1890  levied  to  pay 
interest  on  such  bonds,  it  will  be  presumed 
that  such  bonds  are  still  in  the  hands  of  the 
railway  company,  and  that  there  were  no 
rights  of  innocent  purchasers  to  be  pro- 
tected. Choisser  v.  People  ex  rel,,  140  ///.  21, 
29  N.  E.  Rep.  546. 

(4)  Rights  of  taxpayers. — The  payment  of 
taxes  levied  to  meet  accruing  interest  upon 
bonds  issued  in  the  name  of  a  municipality 
will  not  estop  taxpayers  of  the  municipality 
from  alleging  a  want  of  power  to  create  the 
debt.     Schaeffer  v.  Ronham,  95  ///.  368. 

Where  a  town,  without  authority  of  law, 
voted  to  issue  bonds  to  a  railroad,  and  sub- 
sequently the  legislature  created  a  new  town, 
including  the  old  one,  and  authorized  it  to 
issue  bonds  under  the  prior  vole— held, 
that  after  such  bonds  had  been  registered 
in  the  auditor's  office,  and  a  tax  levied  on 
the  property  of  the  town  by  direction  of  the 
state  officers  to  pay  same,  a  taxpayer  could 
enjoin  the  same.     Flack  v.  Hughes,  67  ///. 

384- 

Where  a  bill  was  filed  by  certain  taxpayers 
of  a  town,  on  behalf  of  themselves  and  the 


\1\ 


*«< 


718 


MUNICIPAL   AND   LOCAL   AID,  411. 


other  taxpayers,  against  a  railway  conipiiny, 
the  town,  and  the  supervisor  and  town  clerk 
thereof,  lo  enjoin  sucli  town  and  its  olFicers 
from  issuiti^  I)  is  of  tiie  town  to  tlic  rail- 
way company  in  pursuance  of  a  vote  at  a 
special  town  meeting,  and  the  same  was 
dismissed  by  the  court,  on  appeal,  for  want 
of  equity,  the  court  holding  that  there  were 
no  sufficient  grounds  shown  for  the  relief 
sought — held,  that  the  obligation  resting 
upon  the  town  to  issue  the  bonds  was  just 
as  binding,  by  reason  of  the  decision  of  the 
court,  as  though  judgment  had  been  ren- 
dered in  a  mandamus  proceeding  or  in  a 
suit  on  the  bonds.  Harmon  v.  Auditor  of 
Public  Accounts,  123  ///.  122,  13  N.  E.  Rep. 
161. 

VVliere,  in  such  suit,  the  liability  of  the 
town  to  issue  its  bonds  in  aid  of  a  railway 
company  is  adjudged  against  tiie  town  un- 
der a  bill  denying  such  liability,  other  tax- 
payers and  citizens  of  the  town  will  be  con- 
cluded by  the  decree,  and  they  cannot,  by 
another  bill  to  prevent  the  collection  of  a 
tax  to  pay  such  bonds  when  issued,  dispute 
their  validity  upon  any  of  the  grounds  which 
were  or  could  have  been  litigated  in  the 
prior  suit,  Harmon  v.  Auditor  of  Public 
Accounts,  123  ///.  122,  13  N.  E.  Rep.  i5i. 

(5)  Diversion  of  tax  fund. — Taxes  levied 
by  town  authorities  to  pay  off  certain  mu- 
nicipal bonds  issued  in  aid  of  a  railway 
constitute  a  special  trust  fund,  and  cannot 
lawfully  be  used  for  any  other  purpose  even 
if  such  bonds  are  void.  Aurora  v.  Chicago, 
B.  Sr'  Q.  R.  Co.,  1 19  ///.  246,  10  A^.  E.  Rep. 
27  ;  affirming  19  III.  App.  360. 

Where  a  special  tax  is  levied  by  a  town 
to  pay  void  bonds  issued  in  aid  of  a  railway, 
and  the  supervisor  is  directed  to  pay  over 
such  taxes  to  the  commissioners  of  high- 
ways to  be  used  as  a  bridge  fund,  a  taxpayer 
may  enjoin  such  application  of  the  fund  as 
to  the  amount  of  such  taxes  paid  by  him. 
Sr.ch  taxpayer  will  have  the  right  to  have 
the  taxes  paid  by  him  appropriated  for  the 
purpose  for  which  they  were  levied  and  col- 
lected. Aurora  v.  Chicago,  B.  &*  Q.  R.  Co., 
1 19  ///.  246,  10  N.  E.  Rep.  27  ;  affirming  19 
///.  App.  360. 

411.  Imliaiia.— (i)  The  power  to  tax. 
— After  a  township  had  voted  to  make  a 
subscription  to  railroad  stock,  the  boundary 
line  of  the  township  was  changed  so  as  to 
take  in  an  additional  strip  half  a  mile  wide 
from  an  adjoining  township,  and  the  rail- 
road was  located  and  built  upon  such  strip, 


wiihout  touching  the  township  as  it  existed 
at  the  time  of  the  vote.  Held:  (1)  that  the 
vote  did  not  authorize  a  tax  to  aid  the  road 
as  located  and  built ;  (2)  that  the  road  must 
be  built  in  the  township  as  it  existed  at  the 
time  of  the  vote  in  order  to  autliorizea  lax. 
Alvis  v.  W'hitmy.  43  Ind.  83.— yiJoiiNt; 
Lafayette,  M.  &  U.  K.  Co.  7/.  Geiger,  34  Ind. 
185 ;  Garrigus  v.  Parke  County  Com'rs,  39 
Ind.  66;  Fulton  County  Su|)'rs  v.  Missis- 
sippi &  W.  K.  Co.,  21  III.  338;  People  v. 
Tazewell  County,  22  111.  147;  McMillan  z/. 
Uoyles,  3  Iowa  311;  Leavenworth  County 
Com'rs  V.  Miller,  7  Kan.  536. 

A  township  voted  an  a|>propriation  of 
$30,000  in  aid  of  a  railroad,  that  sum  being 
less  than  two  per  cent,  of  the  taxubles  for 
the  preceding  year,  1879.  In  i88otliecoun- 
ty  board  levied  a  tax  of  one  per  cent,  on 
such  taxables,  but,  owing  to  the  shrinkage 
in  the  value  thereof,  this  levy  produced  less 
than  one  half  of  the  appropriation.  In 
1881  the  board  levied  the  entire  remainder 
of  the  appropriation,  which  required  1  f^^ 
per  cent.  Held:  (1)  that  under  Rev.  St. 
1 88 1,  §g  4056,  4057,  the  board  had  no  power 
to  order  a  levy  exceeding  two  per  cent,  in 
any  one  period  of  two  years,  and  that  the 
collection  of  the  excess  could  be  enjoined 
by  paying  or  tendering  the  part  of  the  tax 
legally  due;  (2)  that  if  a  levy  of  two  per 
cent,  in  two  years  would  not  have  produced 
the  required  amount,  by  reason  of  the 
shrinkage,  an  additional  levy  for  the  defi- 
ciency might  have  been  ordered  in  the  suc- 
ceeding year.     Miles  v.  Ray,  100  Ind.  166. 

(2)  Construction  of  statutes. —  That  part 
of  the  act  of  May  12,  1869,  §  18.  which  pro- 
vides that  the  failure  of  a  company  to  com- 
plete its  road  within  three  years  from  the 
levy  of  a  special  tax  for  its  benefit  shall 
work  a  forfeiture  of  the  right  of  the  com- 
pany to  the  tax,  and  the  provision  of  the 
act  of  Dec.  24,  1872,  that  the  taxpayers 
shall  be  released  from  the  payment  of  levies 
upon  such  failure,  are  both  repealed  by  the 
act  of  Jan.  30,  1873,  which  gives  the  com- 
missioners the  power,  in  their  discretion,  to 
cancel  a  subscription  made  by  a  township 
to  a  railroad.  Wilson  v.  Hamilton  County 
Com'rs,  68  Ind.  ^orj. 

Under  Ind.  Act  of  May  12, 1869,  only  two 
per  cent,  of  the  assessed  value  of  the  taxa- 
ble property  of  a  township  as  shown  by  the 
tax  duplicate  of  the  preceding  year  can  be 
levied  at  one  time  upon  one  petition  and 
in  any  one  period  of  two  years ;  but  other 


ijj- 


MUNICIPAL   AND   LOCAL   AID,  411. 


719 


of 


on 


appropriations  may  be  made  at  otiier  times 
and  upon  different  petitions.  Brocaw  v. 
Gibson  County  Coin'rs,   3  Am.  &^  A"«c.  A'. 

C<«J.  573.  73  ^'"'-  543- 

Wiicrc  a  townslii|>  votes  aid  to  a  railroad 
under  tlie  above  statute,  the  money  need 
not  necessarily  be  expended  wit.iin  the 
limits  of  the  townsliip.  Jirocaw  v.  Gibson 
County  Com'rs,  3  Am.  &*  iCng.  A'.  Cas.  573, 
73  Intl.  543. 

The  provisions  of  the  laws  whereby  the 
auditor  and  treasurer  are  required  to  sus- 
pend the  collection,  and  to  carry  the  tax 
forward  until  the  road  has  been  located  and 
the  money  expended,  etc.,  have  reference  to 
levies  w)iich  have  gone  upon  the  duplicate 
before  the  inhibition  against  |)lacing  the  tax 
on  the  duplicate  until  the  road  has  been 
located  was  enacted.  Peed  v,  Millikan,  79 
Ind.  86. 

Ind.  Act  of  May  I3,  1869,  ji  18,  and  ilie 
act  of  1872,  §  3,  concerning  the  forfeiture  of 
municipal  aid  to  railroads,  apply  only  to 
donations,  and  not  where  a  subscription  to 
stock  has  been  made.  Nor  do  they  apply 
where  a  portion  of  the  tax  levied  has  been 
collected  and  paid  to  the  company.  Tipton 
County  Com'rs  v.  Indianapolis,  P.  <&<•  C.  R. 
Co.,  12  Am.  &*  Eng.  A'.  Cas.  636,  89  /nd.  101; 
former  appeal  70  Ind.  385. 

Sections  4060  and  4062,  R.  S.  1881  (sec- 
tions 16  and  18,  Acts  of  1869,  p.  92),  relating 
to  public  aid  to  railroads,  have  been  re- 
pealed by  subsequent  legislation.  Nixon  v. 
Campbell,  24  Am.  &*  Eng.  R.  Cas.  605,  106 
Ind.  47,  4  A^.  E.  Rep.  296,  7  N.  E.  Rep.  258. 
Caffyn  v.  State  ex  rel.,  91  Ind.  324. 

(3)  Property  taxable. — For  the  purpose  of 
a  tax  in  aid  of  a  railroad,  an  incorporated 
town  within  a  township  is  part  of  the  town- 
ship.    Reynolds  v.  Far  is,  80  Ind,  14. 

If,  in  making  the  levy  for  a  donation,  cer- 
tain taxable  property  of  the  township  be 
omitted  from  the  assessment,  the  tax  upon 
all  other  property  that  has  been  assessed  is 
not  thereby  rendered  invalid.  Goddard  v. 
Stockman,  5  Am.  &*  Etig.  R.  Cas.  164,  74 
Ind.  400. 

The  board  of  commissioners  of  a  county, 
at  the  June  session,  1882,  ordered  that  a  tax 
be  levied  on  all  the  taxable  property  within 
a  certain  township  in  said  county,  to  aid  in 
the  construction' of  a  proposed  railroad,  an 
election  held  in  said  township  having  re- 
sulted in  favor  of  such  appropriation.  At 
the  time  said  tax  was  ordered  to  be  levied, 
all  of  the  appellant's  property  in  said  county 


was  situated  and  assessed  for  taxes  in  a 
township  A'hicli  had  voted  agiiinsi  an  ap- 
propriation for  said  railroad.  The  board  of 
commissioiicis,  in  March,  1883,  changed  the 
boundaries  of  said  t(jwnship,  and  by  such 
change  the  properly  of  the  appellant  in  said 
county  was  transferred  to  the  townsliip 
which  had  voted  in  favor  of  the  appropria- 
tion. Held:  (I)  thai  the  property  of  the 
appellant  so  transferred  after  the  order  for 
the  levy  was  made,  but  before  the  tax  was 
in  fact  levied,  was  liable  for  its  proportion 
of  the  same;  (2)  that  no  notice  is  required 
of  the  levying  of  a  tax  authorized  or  di- 
rected by  law.  Lake  Shore  &•  M.  S.  R.  Co. 
V.  Smith,  131  Ind.  512,  31  N.  E.  Rep.  196. 

(4)  Enforcement,  generally. —lYic  act  en- 
titled "An  act  to  authorize  aid  10  the  con- 
struction of  railroads  by  counties  and  town- 
ships laking  stock  in  and  making  donations 
to  railroad  companies,"  §  18  (3  Ind.  St.  389), 
requires  the  company  to  which  an  appropri- 
ation has  been  made  to  commence  work 
upon  its  road  in  the  county,  in  good  failli, 
within  one  year  from  the  time  of  the  levy 
of  the  tax  therefor,  unless  additional  time 
has  been  given.  State  ex  rel.  v.  IVheadon, 
39  Ind.  520. 

Where  a  company  fails  to  ccjmmence 
work  in  good  faith  upon  its  road  within 
one  year  from  the  levy  of  the  tax,  taxpayers 
are  discharged  from  their  obligatic^n  to  pay 
ihe  tax,  and  no  proceeding  will  lie  to  re- 
quire the  auditor  to  place  the  tax  upon  the 
duplicate,  or  take  any  other  steps  to  collect 
it.     State  ex  rel.  v.   IVheadon,  39  Ind.  520. 

The  time  within  which  the  company  must 
commence  work  in  order  to  avail  iiself  of 
a  county  appropriation  commences  from 
the  time  when  the  order  levying  the  tax  is 
made  by  the  county  commissioners,  and  not 
from  the  time  when  the  levy  is  placed  on 
the  tax  duplicate.  Merely  acquiring  a  right 
of  way  or  letting  construction  contracts  is 
not  a  commencing  of  work  within  the 
meaning  of  the  statute.  State  ex  rel.  v. 
IVheadon,  39  Ind.  520. 

The  rule  that  the  payment  of  a  less  sum 
will  not  discharge  a  greater  only  applies 
where  the  sum  is  liquidated,  and  is  due 
upon  contract.  It  cannot  apply  to  a  claim 
founded  upon  a  statutory  proceeding  as- 
sessing a  tax  in  aid  of  a  railroad  corpora- 
tion. Huntington  County  Com'rs  v.  State  ex 
rel.,  109  Ind.  596,  10  N.  E.  Rep.  625. 

(5)  The  levy,  and  proceedings  to  obtain  it. 
—Under  "an  act  to  authorize  aid  to  the 


790 


MUNICIPAL   AND   LOCAL  AID,  411. 


I 


construction  of  railroads  i)y  counties  and 
townships  takiiiff  stock  in  and  making  do- 
nations to  railroad  companies, "  3  Iiid.  St. 
389,  tlic  petition  to  the  l)uai'd  of  county 
coniinissioners,  and  tlie  notice  of  election 
issued  by  the  auditor,  must  s|)ecify  the 
amount  to  be  appropriated,  and  iKit  a  per 
cent,  upon  the  taxable  property  ;  and,  wlicre 
the  petition  does  not  specify  tlie  ain(junt, 
but  asks  a  certain  per  cent,  upon  tliu  tax- 
able property  ^i  the  county  to  be  appro- 
priated, the  action  of  the  board  of  commis- 
sioners, an<l  the  proceedings  thereunder  to 
levy  a  tax,  are  void,  and  may  be  enjoitied 
at  the  suit  of  a  taxpayer  of  tlie  county,  and 
nn  appeal  from  the  action  of  the  hoard  is 
unnecessary.  Cincinnati,  It',  ii^  M.  A'.  Co. 
V.  Wells,  39  Ind.  539,  10  Am.  Ry.  Kip.  372. 
-  Distinguished  in  Williams  v.  Hall,  65 
Ind.  129. 

Where  the  proceedings  of  the  board  of 
commissioners  contain  no  formal  order 
granting  the  prayer  of  a  petition  for  a  rail- 
road aid  tax,  an  entry  of  the  tax  in  the  tax 
list  of  the  township  petitioning  for  it  is  sufFi- 
cient  to  show  that  it  was  assessed.  Hill  v. 
Probst,  120  Ind.  528.  22  A^.  E.  Kip.  664. 

The  recital  in  the  record  of  the  order  of 
the  board  of  commissioners  making  such  an 
appropriation  that  "  it  is  hereby  ordered 
that  a  special  tax  of  one  per  cent.  ♦  ♦  *  be 
and  the  same  is  hereby  levied  ♦  ♦  ♦  for  the 
purpose  of  raising  one  half  of  the  amount 
specified  in  said  petition"  is  a  sufficient 
granting  of  the  prayer  of  the  petition  God- 
dard  V.  Stockman,  5  Am.  &*  Eftg.  K.  Cas. 
164,  74  Ind.  400. 

An  order  by  county  commissioners  direct- 
ing the  county  auditor  to  levy  one  half  of 
the  amount  voted  by  a  township  to  aid  a 
railroad,  but  not  specifying  what  per  cent, 
of  a  levy  should  be  made,  is  valid,  as  it  is 
a  mere  matter  of  calculation  to  ascertain 
what  per  cent,  will  be  required.  Mustard 
V.  Hoppess,  69  Ind.  324. 

The  levy  of  a  tax  in  aid  of  a  railroad  com- 
pany is  not  void  because  made  in  the  shape 
of  a  percentage  instead  of  a  gross  sum. 
Peed  V.  Millikan,  79  Ind.  86. 

A  taxpayer  has  the  right  to  compel  an  ad- 
ditional levy  sufficient  to  pay  the  amount 
voted  to  a  railroad  company,  or  he  may 
petition  the  board  of  commissioners  to  or- 
der the  necessary  assessment.  Williams 
V.  Lawrence  County  Com'rs,  121  Ind.  239, 
23  N.  E.  Rep.  76. 

(6)   Time  of  levy. — Though  the  law   re- 


()uiiis  a  levy  in  favor  of  a  railroad  company 
to  he  made  at  the  June  sessi(jn  next  after 
the  vote,  the  duty  to  make  it  is  absolute,  and 
coiisc(|uently  the  power  to  make  it  is  not 
lost  by  failure  to  exercise  it  at  the  ri^lit 
time.  /'<•<■(/  V.  MilNlcan,  79  Ind.  86.  Lake 
Shore  &*  M.  .V.  A'.  Co.  v.  Smith,  131  Ind. 
512,  31  X.  E.  A'c/'.  1  i-p. 

Uniler  i  Ind.  Kiv.  St.  1876,  p.  735.  the 
provisicjn  that  a  tax  levinl  in  aid  of  a  r.iil- 
road  shall  not  be  placed  ujioii  the  iiu[)licatc 
tax  list  until  the  road  has  been  permanently 
located  is  mandatory,  and  the  collection  of 
the  tax  may  be  enjoined  and  the  levy  or- 
fiered  stricken  from  the  duplicate  for  a 
failure  t<i  comply  with  the  statute  even 
where  the  road  has  since  been  located. 
reed  V.  Millikan,  79  ///,/.  86. 

A  township  haviiif,'  voted  aid  to  a  railroad 
company,  the  county  board  ordered  one  half 
the  necessary  tax  to  be  levied  and  collected 
at  once,  and  the  other  half  at  a  time  speci- 
fied. The  first  half  was  duly  levied,  but 
more  than  a  year  elapsed  after  the  time 
fixed  for  the  levy  of  the  second  half  without 
anything  being  done.  At  length  the  county 
board  passed  a  resolution  that  the  remain- 
ing half  be  levied  and  collected,  the  com- 
pany having  been  permanently  h^cated  and 
put  in  operation  in  the  township,  and  hav- 
ing spent  more  upon  its  road  than  the  total 
amount  of  aid  subscribed,  f/eld,  that  the  rail- 
road was  entitled  to  have  such  second  half 
of  the  necessary  tax  levied  and  collected, 
and  that  a  taxpayer  could  not  by  injunc- 
tion restrain  the  collection  of  the  same. 
Norton  v.  Milner,  12  Am.  &*  Eng.  R,  Cas 
639,  89  Ind.  1 97. 

(7)  Enjoining  collection  or  payment  or. 
An  order  made  by  a  board  of  commissi) 
at  a  special  session  not  legally  conve>  1, 
grar.ling  the  prayer  of  a  petition  for  an 
election  in  a  township  to  vote  aid  to  a  rail- 
road, under  Indiana  statute  of  May  12,  1869, 
is  illegal  and  void,  and  the  collection  of  a 
tax  levied  pursuant  to  such  order  and  elec- 
tion may  be  enjoined  at  the  suit  of  a  tax- 
payer. Columbus,  C.  Sr*  I.  C,  R.  Co.  v.  Grant 
County  Com'rs,  65  Ind.  427.  Harney  v.  In- 
dianapolis, C.  &•  D.  R.  Co.,  32  Ind.  244. 

It  is  not  necessary  in  such  case  for  the 
taxpayer  to  appeal  from  such  void  action 
of  the  board  of  commissioners.  Harney  v. 
Indianapolis,  C.  &*  D.  R.  Co.,  32  Ind.  244. 

Where  the  amount  of  the  appropriation 
asked  by  such  petition  exceeds  two  per 
cent,  of  the  assessed  value  of  the  taxable 


■:  'i»vi 


MUNICIPAL   AND   LOCAL   AID,  411. 


721 


property  of  the  townslii|),  the  levy  aiul  as- 
sessment pursuant  thereto  arc  illegal  and 
void,  and  tlie  collection  may  be  enjoined  by 
a  taxpayer.  Columbus,  C.  df^  /,  C.  A'.  Co.  v. 
Grunt  County  Coin'rs,  65  Iml,  427. 

Tiic  collection  of  taxes  assessed  in  either 
of  the  above  cases  upon  a  railroad  belonj;- 
ing  to  one  company  and  leased  to  another, 
under  an  agreement  thiit  all  taxes  legally 
assessed  on  the  property,  and  paid  by  the 
lessee,  shall  be  chargeable  to  the  lessor, 
may  be  enjoined  by  the  lessor  company. 
Columbus,  C.  &*  I.  C.  A',  Co.  v.  Grant  County 
Com'rs,  65  /m(1.  427. 

And  after  a  proceeding  has  been  com- 
menced to  enjoin  the  collection  of  such 
illegal  tax,  it  is  not  competent  for  the  legis- 
lature to  legalize  it,  or  to  declare  it  valid, 
as  such  action  is  an  invasion  of  the  province 
of  the  judiciary.  Columbus,  C.  tS-  /.  C.  A". 
Co.  v.  Grant  County  Com'rs,  65  Ind.  427. 
—Quoting  Denny  7-.  Mattoon,  2  Allen 
(Mass).  361. 

Where  a  railroad  company  to  which  an 
appropriation  to  build  its  road  had  been 
voted  by  a  county  and  placed  upon  the 
duplicate  more  than  three  years  prior  to 
the  passage  of  Ind.  Act  of  March  11,  1875, 
had  failed  during  all  that  time  either  to 
complete  its  road  or  to  obtain  further  time, 
such  appropriation  became  forfeited,  and 
the  collection  of  such  tax  could  be  enjoined 
at  the  suit  of  a  taxpayer.  Indianapolis,  P. 
&>  C.  R.  Co.  V.  Tipton  County  Com'rs,  70 
hut.  385  ;  furthi'7  'y/f>eal  12  Am.  &*  Eng.  K. 
Cas.  636,  89  Ind.  lor. 

The  insolvency  of  a  railroad  company,  or 
its  inability  to  comple.e  its  road,  does  not 
furnish  sufficient  ground  to  enjoin  the  col- 
lection of  a  tax  which  has  been  voted  it,  at 
the  suit  of  taxpayers.  Neither  will  an  in- 
junction lie  to  prevent  the  collection  of 
such  tax  upon  the  ground  that  its  collec- 
tion h;is  not  been  ordered  for  the  purpose 
of  app  priating  the  same  to  the  object  for 
which  it  was  assessed.  Wilson  v.  Hamilton 
County  Com'rs,  68  Ind.  507. 

.An  injunction  will  not  lie  to  restrain  the 
collection  of  a  township  tax  in  favor  of  a 
railroid  because  it  is  slightly  in  excess  of 
the  amount  voted,  where  the  excess  on  each 
taxpayer  is  so  infinitesimal  as  to  come 
within  the  maxim  de  minimis  non  curat 
lex;  nor  because  the  claim  to  the  tax  has 
been  assigned  by  the  company.  Faris  v. 
Reynolds,  70  Ind.  359. 

That  the  property  and  franchises  of  a  rail- 
6  D.  R.  D.— 46 


road  company  are  owned  by  a  foreign  cor- 
poration, that  there  was  a  prior  existing 
levy  on  the  township  to  aid  the  same  r^ad, 
or  that  proper  notices  of  election  concern- 
ing the  levy  of  the  tax  were  not  given,  are 
matters  which  must  have  been  decided  by 
the  board  of  commissioners  before  granting 
the  prayer  of  the  petition,  and  that  decision 
can  only  be  reviewed  upon  a  direct  appeal, 
and  cannot  be  questioned  by  a  suit  to  en- 
join the  collection  of  the  tax.  Rrynoli/s  v. 
Faris,  80  Ind.  14. 

That  the  railroad  company  had  not  done 
work  in  the  township  equal  to  the  amount 
of  the  tax  is  a  matter  necessary  to  be  fic- 
cided  by  the  board  of  commissioners  before 
ordering  the  collection  of  the  tax,  and,  that 
order  having  been  granted,  the  question  is 
settled  as  against  a  collateral  attack.  Rfy- 
nolds  V.  Faris,  80  Ind.  14. 

The  order  of  the  board  of  county  commis- 
sioners directing  the  levy  of  a  tax  to  aid  in 
the  construction  of  a  railroad  cannot  be 
attacked  collaterally,  in  a  suit  to  enjoin  the 
collection  of  a  tax,  for  any  cause  which  was 
available  when  the  order  was  made,  not 
even  for  want  of  the  notice  required  by  law, 
unless  the  record  shows  affirmatively  that 
there  was  no  notice  whatever.  Hilton  v. 
Mason,  92  Ind.  1 57. 

Unless  there  is  an  adjudication  by  the 
board  of  commissioners,  in  the  manner 
prescribed  by  existing  statutes,  declaring  a 
forfeiture  because  of  a  failure  to  make  the 
expenditure  required,  or  to  complete  the 
road  within  the  time  prescribed,  the  collec- 
tion of  the  special  tax  cannot  be  enjoined. 
Nixon  V.  Campbell,  24  Am.  «S»  Eng.  R.  Cas. 
605,  106  Ind.  47,  4  A'.  E.  Rep.  296,  7  i\.  E. 
Rep.  258. 

The  appearance  of  a  railroad  aid  tax  upon 
the  tax  duplicate  creates  the  presumption 
that  it  was  levied  by  the  board  of  commis- 
sioners. The  validity  of  the  election  author- 
izing it  is  necessarily  reviewed  in  making 
the  levy,  and  cannot  be  attacked  in  an  in- 
junction proceeding.  Hill  v.  Probst,  120 
Ind.  528,  22  A'.  E.  Rep.  664. 

Where  the  collection  of  a  tax  levied  in  a 
township  in  aid  of  the  construction  of  a 
railroad  had  been  enjoined,  some  of  the 
persons  taxed  having  voluntarily  paid  to 
the  railroad  company  the  amount  assessed 
against  them,  and  taken  from  the  company 
stipulations  that  they  should  be  released 
from  an  equal  amount  that  might  there- 
after be  levied  against  them— //<■/</,  that  a 


"^ 


''M 


'Mi 


1: 


732 


MUNICIPAL  AND   LOCAL  AID,  412. 


tax  thereafter  levied  upon  new  proceedings 
was  not  thereby  vitiuted  as  against  persons 
who  did  not  so  pay  to  the  company;  and 
that  the  company  had  no  legal  right  to  the 
money  tiius  paid,  as  the  stock  had  not  been 
subscribed  for  nor  the  donation  made. 
/V/Zy  V.  A/j>fts,  49  /fuf.  i. 

To  secure  votes  in  favor  of  a  township 
subscription  a  company  circulated  among 
the  voters  notice  of  an  agreement  which  it 
had  entered  into  with  another  company 
about  to  build  a  road  through  the  town- 
siiip  that  if  both  roads  were  built  each  one 
should  have  one  half  of  the  amount  voted, 
and  if  but  one  was  built  that  one  half  of 
the  amount  should  be  returned  to  the  town- 
ship. //<•/</,  no  ground  for  an  injunction  at 
the  suit  of  taxpayers.  If  such  agreement 
was  legal  and  valid,  then  the  voters  could 
not  be  imposed  upon  thereby ;  and  if  it  was 
illegal,  they  must  be  presumed  to  have 
known  it.    B/'s/i  v.  S/ou/,  77  /ntf.  255. 

(8)  Parties  to  suits  to  enjoin. — Where  a 
suit  is  brought  by  taxpayers  to  enjoin  the 
collection  of  a  tax  in  aid  of  a  railroad,  it  is 
error  to  admit  the  directors  of  the  company 
as  defendants,  as  the  company  has  no  inter- 
est in  the  tax  until  it  is  collected,  and  where 
such  directors  have  been  improperly  made 
parties,  an  appeal  taken  by  them  will  be 
dismissed.    Jager  v.  Doherty,  61  Ind,  528. 

In  an  action  by  a  taxpayer  against  a 
county  treasurer  to  enjoin  the  collection  of 
a  tax  levied  as  an  appropriation  voted  by  a 
township  to  aid  a  railroad,  thetownsiiip  is  a 
necessary  party  defendant,  but  the  company 
and  the  board  of  county  commissioners  are 
not ;  neither  are  the  petitioners  for  the  ap- 
propriation, where  their  interests  are  not 
affirmatively  shown  by  the  complaint  to  be 
adverse  to  the  plaintiff's.  Bittinger  v. 
Pfll,  65  Ind.  445.— Distinguishing  Indi- 
ana N.  &  S.  R.  Co.  V.  Attica,  56  Ind.  476.  ' 

But  where  a  taxpayer  of  the  township 
alleges  himself  in  favor  of  the  appropria- 
tion, and  that  the  defendant  is  not  a  tax- 
payer of  the  township,  he  should  on  proper 
application  be  alloved  to  appear,  answer,  and 
defend  the  action.     Bittinger  v.  Bell,  65  Ind. 

445- 

(9)  Evidence  in  suits  to  enjoin.— On  the 
trial  of  an  action  by  a  taxpayer  to  enjoin  the 
collection  of  a  tax,  it  appearing  that  the 
sum  specified  was  exactly  two  per  cent,  of 
the  assessed  taxable  property  of  the  town- 
ship, it  was  harmless  to  allow  evidence  by 
the  defendant  of  unassessed  property  sub- 


ject to  taxation  in  tliat  township.  Williams 
V.  Hall,  6i)  Ind.  129.— Distinguishing  Cin- 
cinnati, W.  &  M.  R.  Co.  -,'.  Wells,  39  Ind. 
539;  Detroit,  E.  R.  &  I.  R.  Co.  v.  Bearss, 
39  Ind.  598. 

In  a  proceeding  to  enjoin  the  collection  of 
a  tax  levied  for  the  construction  of  a  rail- 
road, it  is  not  competent  .0  inquire  into 
questions  pertaining  to  tlie  organization  of 
the  railroad  company,  they  having  been  de- 
termined by  the  board  of  commissioners  as 
jurisdictional  matters.  Brocaiv  v.  Gibson 
County  Cofn'rs,  3  Ant.  <S»  Eng.  K.  Cas.  573, 

73  /««'•  543- 

(10)  Right  to  fund  after  forfeiture  by  rail- 
way company. — The  fund  in  the  hands  of  a 
county  treasurer  arising  from  a  tax  voted  by 
a  township  to  aid  a  railroad,  where  the  com- 
pany has  forfeited  all  rij^  .ii  to  the  same, 
undersection  t8  of  the  Railroad  Act  of  May 
12,  1869  (i  Rev.  St.  1876,  p.  736),  and  sec- 
tions I  and  2  of  the  Supplemental  Act  of 
December  24,  1872  (Acts  1872,  p.  56),  it  not 
having  been  diverted  into  the  township 
funds,  belongs  to  the  township  unless  it  has 
been  demanded  by  the  taxpayers  of  the 
township  within  two  years  after  the  passage 
of  the  act  of  1872,  or  within  two  years  after 
the  forfeiture  thereof  by  the  railroad  com- 
pany, and  such  demand,  being  matter  of  de- 
fense, need  t-ot  be  negatived  in  the  com- 
plaint in  ar  "vicion  by  a  township  against  a 
county  to  recover  a  tax  voted  by  the  town- 
ship. Centre  Tp.  v.  Marion  County  Com'rs, 
70  Ind.  562. 

413.  Iowa.  —  (r)  The  statutes.  —  The 
county  treasurer  cannot  refuse  to  pay  over 
a  tax  in  his  hands  petitioned,  voted  for, 
and  collected  under  the  act  of  1868  enabling 
townships  and  cities  to  aid  in  the  construc- 
tion of  railroads,  on  ihe  ground  that  such 
tax  was  levied  and  collected  under  an  un- 
constitutional law.  Said  act  is  constitu- 
tional. McGregor  &*  S.  C.  R.  Co.  v.  Bird- 
sail,  30  Iowa  255.— Following  Stewart  v. 
Polk  County  Sup'rs,  30  Iowa  9. 

Bonds  issued  by  counties  under  the  pro- 
visions of  chapter  87,  Laws  of  1872,  are  pay- 
able in  all  respects  as  is  provided  in  chapter 
I,  title  iv.,  of  the  Code.  It  is  the  duty  of 
the  board  of  supervisors  to  levy  the  bond 
tax  as  there  provided  for  their  payment,  and 
such  tax  is  not  limited  by  section  840  of  the 
Code  to  three  mills.  Sioux  City  &*  St.  P. 
R.  Co.  V.  Osceola  County,  52  Iowa  26,  2  N. 
W.  Rep.  593. 

The  aggregate  amount  of  tax  that  can  t4 


MUNICIPAL   AND   LOCAL   AID,  412. 


723 


voted  and  levied  by  any  city,  town,  or  town- 
ship in  aid  of  railroads,  under  the  Act  of  the 
Sixteenth  General  Assembly,  ch,  123,  is  five 
pet  cent,  of  the  assessed  value  of  the  prop- 
erty therein,  and  when  that  amount  has  been 
levied  and  collected  the  power  conferred  by 
the  statute  is  exhausted.  Dumpiiy  v.  Hum- 
boldt County  Sup'rs,  58  Iowa  27  j,  1 2  A^,  M^. 
Rep.  306.  —  Explained  in  Williams  v. 
Poor,  65  I0WU410. 

But  in  estimating  such  aggregate  the  fact 
that  a  similar  tax  has  been  imposed  under 
the  Act  of  the  Thirteenth  General  Assembly, 
ch.  102,  is  not  to  be  considered,  though  it 
contains  a  like  limitation.  Such  limitation 
in  the  earlier  statute  does  not  afTect  the 
power  of  the  legislature  to  enact  the  later 
statute,  which  must  be  construed  with  refer- 
ence to  its  own  terms.  Scott  v.  Union 
County,  63  Iffwa  583,  19  A^.  W.  Rep.  667. 

Where  in  1877  a  certain  township  voted  a 
five  percent,  tax  in  aid  of  a  certain  railroad, 
which  was  duly  levied  by  the  supervisors, 
and  entered  on  the  tax  books,  and  in  De- 
cember, 1878,  the  electors  of  the  township 
voted  another  five  per  cent,  tax  in  aid  of  an- 
other railroad,  and  in  May,  1879,  the  direc- 
tors of  the  first  railroad  company  rescinded 
and  abandoned  the  tax  voted  in  its  favor, 
and  in  June  following  the  supervisors  can- 
celed said  tax,  and  in  September  following 
levied  the  tax  in  aid  of  the  second  railroad 
—held,  that  the  second  tax  was  not  void 
as  being  in  violation  of  the  provision  of 
the  statute  (ch.  123,!  3,  Laws  of  1876)  to 
the  effect  that  the  aggregate  of  such  tax 
"  to  be  voted  or  levied  "  should  not  exceed 
five  per  cent,  of  the  assessed  value  of  the 
property  of  the  township,  because,  constru- 
ing the  statute  with  reference  to  its  pur- 
pose, the  word  "  or  "  in  the  quoted  clause 
siiould  be  construed  as  and,  anu  before  the 
second  tax  was  voted  and  levied  the  first 
levy  had  been  set  aside.  (Adams,  J.,  dis- 
senting.) IVilliams  v.  Poor,  65  Iinva  410,  21 
A'.  W.  Rep.  753.— Explaining  Dumphy  v. 
Humboldt  County  Sup'rs,  58  Iowa  273. 

(2)  What  property  taxable.  —  Farming 
lands  situated  within  the  limits  of  a  city  are 
liable  for  a  tax  voted  to  aid  in  the  construc- 
tion of  a  railroad.  Such  a  tax  is  not  a  mu- 
nicipal tax  within  the  meaning  of  that 
phrase  as  used  in  Morford  v.  Unger,  8  Iowa 
82,  and  cases  following  it.  Stars  v.  Ifftva 
Midland  R.  Co.,  39  I<nua  417. 

The  municipal  taxes  from  which  farm 
property  is  exempt  are  li.nited  to  those 


which  are  required  for  purposes  strictly  mu- 
nicipal and  from  which  such  property  de- 
rives no  benefit.  Sears  v.  Iowa  Midland R. 
Co..  39  Iowa  417. 

(3)  Assessment,  how  made  and  returned. — 
Under  Laws  of  1872,  ch.  2,  §  50,  it  is  the 
duty  of  township  trustees,  after  a  tax  has 
been  voted  to  aid  a  railroad,  and  the  en- 
gineer's estimates,  together  with  an  order 
of  the  president  of  the  company,  has  been 
presented,  showing  that  the  statute  has 
been  complied  with,  and  ''nt  the  company 
has  expended  more  than  'ie  amount  of  the 
tax  in  the  township,  to  certify  the  fact  to 
the  county  treasurer.  Harwood  v.  Quinby, 
44  Iowa  385. 

That  the  certificate  of  compliance  by  a 
company  with  the  conditions  of  a  tax  voted 
in  aid  of  its  construction  was  not  executed 
in  accordance  with  any  order  of  the  trustees 
made  at  a  meeting  thereof  will  not  invali- 
date the  tax,  the  certificate  having  been  duly 
signed.    Merrill  \.  IVelsher,  ^o  Iowa  6\. 

It  is  not  necessary  that  the  clerk  of  the 
board  of  supervisors  should  attach  to  the 
list  furnished  the  treasurer  a  warrant  requir- 
ing him  to  collect  the  taxes  therein  levied. 
Harwood  v.  Brownell,  48  Iowa  657. — Dis- 
tinguishing Chicago,  D.  &  M.  R.  Co.  v. 
Olmstead,  46  Iowa  316. 

Where  the  township  clerk  files  with  the 
county  auditor  all  the  record  proceedings 
relating  to  u  tax  voted,  and  a  certificate  that 
the  election  was  held  on  the  proper  day,  and 
that  a  majority  of  the  votes  cast  were  in 
favor  of  the  tax,  this  is  a  substantial  com- 
pliance with  the  requirement  that  tiie  clerk 
shall  certify  the  rate  per  cent,  of  the  tax 
voted.    Shontz  v.  Evans,  40  Iowa  139. 

In  a  proceeding  respecting  the  validity  of 
a  tax  voted  to  aid  a  railroad,  it  appeared 
that  the  election  was  held  on  March  30, 
1869;  that  on  the  next  day  the  trustees 
made  an  order  levying  a  tax  upon  the  tax- 
able property  of  the  township,  and  ordered 
the  cleric  of  the  township  to  certify  to  the 
board  of  supervisors  a  tax  list  of  said  tax 
according  to  the  valuation  of  the  property 
for  that  year;  that  the  township  assessor 
returned  the  assessment  book  to  the  town- 
ship clerk  on  April  12,  and  it  was  delivered 
to  the  county  auditor  on  May  18,  the  tax 
list  certified  to  the  clerk  of  the  board  of 
supervisors  in  September  and  October  of 
that  year,  and  then  placed  in  the  hands  of 
the  treasurer  for  collection.  Held,  that  the 
tax  was  not  invalid  on  the  ground  that  it 


'V 

i, 


'V. 


%. 


lit! 
1.1 


724 


MUNICIPAL  AND   LOCAL   AiD,  412. 


=!i 


W  ' 


was  levied  upon  an  assessment  not  made 
and  returned  at  the  time  the  tax  was  voted. 
Parsons  v.  Chillis,  36  Imva  108. 

(4)  Suffuieiuy  and  validity  of  the  levy. — 
County  commissioners  have  no  power  to 
levy  a  tax  in  aid  of  railroads  at  any  other 
time  than  at  one  of  their  regular  meetings 
appointed  by  the  statute,  or  a  special  meet- 
ing called  as  the  statute  directs.  So  where 
the  board  adjourns  without  a  day  fixed,  and 
the  second  day  afterwards  meets  again  at  the 
suggestion  of  the  auditor  and  levies  such 
tax,  it  is  void.  Scott  v.  Union  County,  63 
Imua  583,  19  A'.  W.  Kep.  66/. 

The  levy  of  a  tax  described  as  "  railroad 
tax  five  mills  "  is  sufficiently  explicit,  when 
the  purpose  and  object  of  the  tax  and  the 
beneficiary  corporation  can  be  ascertained 
aliunde.    Shontz  v.  Evans,  40  Iowa  1 39. 

A  levy  for  "all  loans  for  city  purposes, 
district  tax,  railroad  tax  that  has  been  cer- 
tified according  to  law,"  is  sufficient.  Cas- 
ady  V.  Lmury,  49  Iowa  523. 

Where  the  railroad  to  be  aided  by  a  tax 
voted  is  completed  before  the  tax  is  levied, 
the  omission  to  state  in  the  levy  the  time 
when  the  road  is  to  be  completed  is  not 
a  vital  defect  which  will  defeat  the  tax. 
Burges  :.  Mabin,  70  Iowa  633,  27  A'.  W. 
Rep.  464. 

The  Act  of  the  Thirteenth  General  Assem- 
bly, ch.  159,  requires  that  the  clerk  of  an 
election  shall  certify  to  the  county  auditor 
the  result  of  the  election,  the  rate  per  cent, 
of  the  tax  voted,  and  "  the  time,  terms,  and 
conditions  upon  which  the  same,  when  col- 
lected, is  to  be  paid  to  the  railroad  com- 
pany." Held,  that  a  failure  of  the  board  of 
supervisors  in  levying  a  tax  to  pay  such  ap- 
propriation to  state  in  their  order  the  con- 
ditions upon  which  the  tax  was  to  be  paid 
to  the  company  would  not  invalidate  the 
levy.  Bartemeyer  v.  Rohlfs,  71  Iowa  582.  32 
N.  W.  Rep.  673.— Dlstinguishing  Minne- 
sota &  I.  S.  R.  Co.  v.  Hiams.  53  Iowa  501. 

(5)  Company  when  entitled  to  the  tax. — 
The  certificate  of  the  trustees  reciting  that 
the  company  has  so  complied  with  the  act 
as  to  be  entitled  to  the  tax  should  recite  a 
compliance  in  all  respects  with  the  statutes. 
Casady  v.  Lowry,  49  Iowa  523. 

The  certificate  of  the  township  trustees 
that  a  company  is  entitled  to  receive  the 
tax  is  not  authority  for  its  collection,  the 
only  object  of  such  certificate  being  to  au< 
th6rize  the  treasurer  to  pay  to  the  company 
the    amount   collected  and  in   his  hands. 


Lamb  v.  Anderson,  54  lo^va  190,  3  iV.  W.  Rep, 
416,  6  A.  W.  Kep.  268.—  Reviewed  in 
Southern  Kaii:  &  P.  R.  Co.  v.  Towner,  41 
Kan.  72,  21  Pac.  Rep.  221. 

The  fact  that  a  corporation  is  authorized 
to  construct  and  operate  both  railroad  and 
telegraph  lines  will  not  invalidate  taxes 
voted  to  aid  in  the  construction  of  its  road. 
Snellv.  Leonard,  55  Iowa  553,  8  A'.  W.  Rep. 
425. 

Where  a  tax  has  been  voted  to  aid  a  rail- 
road, and  the  company,  relying  upon  the  tax, 
has  expended  large  sums  in  constructing  its 
road,  a  subsequent  repeal  of  the  statute  au- 
thorizing the  aid  does  not  deprive  the  com- 
pany of  its  right  to  the  tax,  although  it  may 
not  be  levied  until  after  the  repeal.  (See- 
vers  and  Reed,  J  J.,  dissenting.)  Burges  v. 
Mabin,  70  Iowa  633,  27  A^.  IV.  Rep.  464.— 
Distinguished  in  Barthel  v.  Meader.  72 
Iowa  125,  33  N.  W.  Rep.  446. —  Cantillon  v. 
Dubuque  <S-  A^.  W.  R.  Co.,  78  Iowa  48,  42  N. 
IV.  Rep.  613. 

A  tax  in  aid  of  a  railroad  was  voted  on 
condition  that  the  road  be  completed  "  from 
the  south  line  of  the  county  of  Hancock, 
via  Garner,  to  a  connection  with  the  M.  & 
St.  L.  railroad."  Neld,  that  this  specified 
with  sufficient  explicitness  the  route  of  the 
railroad  and  the  points  to  which  it  should 
be  completed  before  the  tax  was  payable. 
Burges  v.  Mabin,  70  Iowa  633,  27  A^.  W. 
Rep.  464.— Distinguished  in  Kleise  v. 
Galusha,  78  Iowa  310,  43  N.  W.  Rep.  217. 

A  tax  voted  to  aid  a  railroad  is  collect- 
ible if  the  road  constructed  be  of  narrow 
gauge,  unless  it  be  shown  unable  to  do  the 
business  of  the  country  through  which  it 
passes.     Casady  v.  Lowry,  49  Iowa  523. 

The  articles  of  incorporation  of  a  railroad 
company  stated  its  object  to  be  to  acquire, 
maintain,  and  operate  a  railroad  through 
certain  designated  points,  of  which  the 
town  of  N.  was  one.  Held,  that  the  con- 
struction of  the  road  to  N.  was  essenti.il  to 
entitle  the  company  to  the  tax  voted  in  its 
aid  in  that  township.  Lamb  v.  Anderson, 
54  lonva  190,  3  A^.  W.  Rep.  416,  6  A'.  W. 
Rep.  268. 

The  building  of  the  road  to  a  point  with- 
out the  township,  and  the  purchase  of  an- 
other road  from  such  point  to  the  town, 
will  not  authorize  the  collection  of  the  tax, 
the  construction  of  a  road  being  the  only 
object  for  which  such  tax  can  be  legally 
voted  or  expended  under  the  statute.  Lamb 
v.  Anderson,   54  Iowa   190,   -^  N.   IV.  Rep, 


MUNICIPAL  AND   LOCAL  AID,  412. 


785 


416,  6  A'.  tV.  Rep.  268.— Distinguishing 
Stockton  &  V.  R.  Co.  v.  Stockton.  51  Cal. 

328. 

Where  by  the  conditions  of  a  tax  voted  it 
is  not  to  be  payable  until  the  road  is  con- 
structed between  specified  points,  the  con- 
struction of  a  portion  of  the  line  and  the 
purchase  of  the  remaining  portion  will  not 
render  the  tax  payable,  although  the  con- 
structed portion  extends  through  the  town- 
sh  p  in  which  the  tax  is  voted.  Imva,  M. 
&*  N.  P.  K.  Co.  V.  Schenck,  7  Am.  &•  Eng. 
R.  Cas.  324,  56  Iowa  628.  10  A^.  W.  Rep. 
215. 

(6)  Estoppel  to  deny  validity  of  tax. — 
Where  tax  to  aid  a  railroad  is  voted  in  Jan- 
uary, 1872,  and  the  railroad  completed  upon 
the  faith  of  the  tax  within  the  year,  and  the 
taxpayers  remain  silent  until  all  the  benef.is 
to  accrue  therefrom  are  secured,  they  will 
be  estopped  from  denying  the  validity  of 
the  tax.  Lamb  v.  Burlington,  C.  R.  &*  M. 
R.  Co.,y)Iotva  333.— Following  Burling- 
ton, C.  R.  &  M.  R.  Co.  V.  Stewart,  39  Iowa 
267. 

When  a  railroad  company  expends  large 
sums  in  the  construction  of  a  railroad,  tax- 
payers, having  before  the  completion  of  the 
road  made  no  objection  to  a  tax  voted  in 
its  aid,  are  estopped  from  denying  its  valid- 
ity. Johnson  v.  Kessler,  76  Iowa  411,  41  N. 
iv.  Rep.  57. 

Where  it  does  not  appear  that  •■  person 
resisting  a  railroad  tax  upon  the  ^»ith  of 
which  the  road  was  constructed  knew  that 
expenditures  were  made,  he  is  not  estopped 
to  deny  the  validity  of  such  tax.  Truesdell 
V.  Green,  7  Am.  &*  Eng.  R.  Cas.  369,  57 
Itnm  215, 10  A'.  H^.  Rep.  630. 

(7)  Enforcing  payment  to  company. — 
While  a  tax  voted  to  aid  a  railroad  cannot 
be  collected  in  instalments,  yet,  if  the  com- 
l)any  has  not  expended  enough  in  the  city 
or  township  to  entitle  it  to  the  whole,  it 
may  be  entitled  to  the  part  earned  in  lieu 
of  the  whole.     Ctsady  v.  Loivry,  49  laiva 

523- 

Where  a  county  treasurer  fails  during  his 
term  of  office  to  pay  over  on  demand  to  a 
railroad  company  the  taxes  voted  to  the 
company,  and  he  does  not  turn  over  the 
money  to  his  successor,  and  it  is  never 
passed  to  the  credit  of  the  county,  ncitlier 
his  successor  nor  the  county  is  liable  there- 
for. His  failure  is  a  breach  of  his  official 
bond  for  which  he  and  his  sureties  are 
liable  ;  and  the  company  is  the  proper  party 


to  bring  an  action  on  his  bond.  Cedar 
Rapids,  I.  F.  (S-  A'.  W.  R.  Co.  v.  Cowan,  77 
Iffwa  535,  42  A^.   W.  Rep.  436. 

In  an  action  to  compel  the  treasurer  of  a 
county  to  levy  and  collect  a  tax  voted  to 
aid  a  railroad,  an  allegation  that  the  plain- 
tifl  lias  made  the  required  proof  of  compli- 
ance with  all  the  conditions  upon  which  the 
tax  is  to  be  paid  is  good  on  demurrer. 
Burlington,  C.  R.  <S-  M.  R.  Co.  v.  Stewart, 
39  Iowa  267,  20  Am.  Ry.  Rep.  89. 

(8)  Forfeiture  by  failure  to  comply  with 
conditions. — A  taxpayer  cannot  defeat  a  tax 
voted  in  aid  of  a  railroad  under  chapter  159, 
Laws  of  1884,  on  the  ground  that  the  com- 
pany has  failed  to  comply  with  the  condi- 
tions of  the  notice  of  the  election,  and  to 
complete  the  road  in  the  time  therein  pre- 
scribed. Taxpayers  are  in  such  case  to  be 
regarded  as  in  the  same  situation  as  sub- 
scribers to  the  stock  of  the  company,  fohn- 
son  V.  Kessler,  76  Iowa  411,  41   A^.  IV.  Rep. 

57- 

A  tax  to  aid  in  the  construction  of  a  rail- 
road was  voted  in  the  township  of  K.,  to  be 
expended  in  that  and  two  other  townships 
specified.  Double  the  amount  of  the  tax 
was  expended  by  the  company  in  construct- 
ing the  road  through  K.,  but  nothing  was 
expended  in  either  of  the  other  townships. 
Held,  that  the  three  townships  should  be 
regarded  as  a  unit,  and  that  the  tax  was  not 
forfeited  by  the  failure  to  expend  any  part 
of  it  in  either  of  the  other  townships  speci- 
fied.    Merrill  V.  Welsher,  so  Iowa  61. 

The  survey  of  a  line  of  a  railroad  before 
voting  a  tax  to  aid  in  its  construction  does 
not  constitute  a  representation  respecting 
the  location  of  the  line  of  the  road  which  is 
binding  upon  the  company,  or  upon  which 
the  taxpayer  is  authorized  to  rely.  Merrill 
v.  IVelsher,  50  Io7t>a  61. 

A  suspension  of  work  upon  a  road  for 
nearly  four  years— held,  not  to  work  a  for- 
feiture of  a  tax  voted  in  aid  of  the  road. 
Merrill  v.   IVelsher,  50  Iowa  61. 

And  the  company  is  not  estopped  to  col- 
lect the  tax  because  it  advised,  when  the 
work  temporarily  ceased,  that  the  collection 
of  the  tax  should  be  suspended.  Merrill  v. 
IVelsher,  50  Iowa  61. 

Under  section  7  of  page  1 10  of  the  Laws 
of  1876,  providing  that  taxes  voted  in  aid 
of  any  railroad  which  remain  in  the  treas- 
ury for  more  than  two  years  after  the  same 
have  been  collected  shall  be  considered  for- 
feited—//c/</,  that  where  a  portion  of  a  levy 


\ 


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■] 


726 


MUNICIPAL  AND   LOCAL  AID,  412. 


Ill    ' 


for  such  purpose  Jiad  been  paid  to  the 
county  treasurer  and  held  by  him  for  four 
years  without  the  knowledge  of  the  railroad 
company  in  whose  favor  the  tax  had  been 
voted,  and  it  was  believed  furtlier  by  the 
company  that  a  decision  of  the  courts  that 
the  company  was  not  entitled  to  a  second 
instalment  of  the  tax  voted  but  not  yet 
levied  affected  the  whole  tax,  the  right  to 
the  taxes  held  by  the  treasurer  was  for- 
feited. Cetiar  Kapuis,  I.  F.  &*  N.  IV.  R. 
Co.  v.  Eheffcr,  84  I&tva  510,  51  A'.  W.  Rep.  27. 

The  above  statute  is  not  repealed  by  chap- 
ter 192  of  the  Laws  of  1880,  providing  for  a 
forfeiture  of  such  taxes  when  work  upon 
the  railroad  to  which  aid  has  been  voted 
shall  not  have  been  comtvenced  within  the 
township  within  two  years,  or  such  railroad 
company  shall  have  neglected  for  six  months 
to  comply  with  the  terms  of  the  notice  and 
petition  under  which  such  taxes  have  been 
voted.  Cedar  Rapids,  I.  F.  <S-  N.  W.  R.  Co. 
v.  Elseffer,  84  /owa  510,  51  A^.  W.  Rep.  27. 

A  company  was  chartered  to  build  a  road 
from  a  point  in  the  state  through  an  ad- 
joining state,  and  to  a  point  in  a  third  state  ; 
and  a  town  voted  aid  to  it,  but  did  not 
make  it  conditioned  upon  the  road  being 
constructed  according  to  the  charter.  Held, 
that  the  fact  that  the  road  was  never  built 
to  its  charter  limits  would  not  invalidate 
the  subscription.  Cantillon  v.  Dubuque  &* 
N.  W.  R.  Co.,  78  Iffwa  48,  43  A'.  W.  Rep. 
613. 

(9)  by  alienation  of  road. — When  a 

railroad  company  to  which  a  tax  has  been 
voted  has,  upon  the  faith  thereof,  con- 
structed its  road  and  put  it  in  operation,  the 
company  becomes  thereby  entitled  to  the 
tax,  and  this  right  is  not  forfeited  or  lost  by 
the  subsequent  alienation  of  the  railroad  to 
another  company.  Parsons  v.  Childs,  36 
louHX  108. 

A  tax  voted  in  aid  of  a  railroad  is  not 
forfeited  by  a  perpetual  lease  of  the  road 
made  in  good  faith  to  another  company. 
Chicago,  M.  iS-  St.  P.  R.  Co.  v.  Shea,  fyj  Iowa 
728,  25  N.  W.  Rep.  901.— Quoting  Man- 
ning V.  Mathews,  66  Iowa  675. 

Under  Code,  §  1302,  where  a  railroad  is 
sold,  and  consolidated  with  that  of  another 
company,  whose  stock  is  equal  to  or  of 
greater  value  than  that  of  the  company  to 
which  a  tax  is  voted,  and  the  purchasing 
company  is  ready  to  give  to  the  taxpayer 
the  same  amount  of  stock  in  the  consoli- 
dated company  as  he  would  have  been  en- 


titled to  in  the  other  company,  it  has  a 
right  to  such  taxes,  and  their  collection 
cannot  be  restrained  by  reason  of  the  sale 
or  consolidation.  Cantillon  v.  Dubuque  &* 
N,  IV.  R.  Co.,  78  Iowa  48,  42  A'.   If.   Rep. 

613. 

A  tax  voted  by  a  township  in  aid  of  a 
railroad,  under  ch.  123,  Laws  of  1876,  is  for- 
feited by  the  alienation  of  the  road  before 
its  completion  ;  and  in  such  case  llie  town- 
ship trustees  may  be  enjoined,  at  the  in- 
stance of  a  taxpayer,  from  certifying  to  the 
county  treasurer  that  the  conditions  of  the 
vote  have  been  complied  with,  and  the  treas- 
urer may  be  enjoined  from  collecting  and 
paying  over  the  tax.  Alann/njf  v.  Alathev/s, 
66  Iowa  675,  24  A^.  \V.  Rep.  271.— DISTIN- 
GUISHING Muscatine  Western  R.  Co.  v. 
Horton.  38  Iowa  33.— Followed  in  Dren- 
nan  v.  Graham,  67  Iowa  161  ;  Mathews  v. 
Winchell,  67  Iowa  149;  Blunt  v.  Carpenter, 
68  Iowa  265.  Quoted  in  Chicago,  M.  & 
St.  P.  R.  Co.  V.  Shea.  67  Iowa  728. 

(10)  Void  taxes— Enjoining  collection. — 
Where  the  voters  of  a  township  are  induced 
by  fraudulent  representations  to  vote  a  tax 
in  aid  of  a  railroad,  the  collection  of  the  tax 
cannot  be  enforced.  Sinnett  v.  Moles,  38 
Iowa  25.— Adopted  in  Curry  v.  Decatur 
County  Sup'rs,  13  Am.  &  Eng.  R.  Cas.  80, 
61  Iowa  71. 

A  railroad  tax  that  is  procured  to  be 
voted  upon  representations  that  it  will  not 
be  enforced  except  as  against  non-resident 
property  holders  will  not  be  upheld.  Trues- 
dell  V.  Green,  7  Am.  &*  F.ttg.  R.  Cas.  369,  57 
Iowa  215,  10  A^.   \V.  Rep.  630. 

Where  the  citizens  of  a  town  appoint  a 
committee  to  work  up  the  voting  of  a  rail- 
road aid  tax  in  another  township  of  the 
county,  and  the  railroad  company  afterwards 
employs  one  of  the  same  committee  to  do  the 
same  thing  on  its  behalf,  and  he  induces 
men  to  vote  for  the  tax  by  offering  to  pay 
them  fifty  cents  on  the  dollar  for  the  certifi- 
cates of  taxes  paid  by  them,  the  tax  so  voted 
is  void  on  account  of  the  undue  influence 
so  brought  to  bear  upon  the  voters.  Chicago, 
At.  «S-  .SV.  P.  R.  Co.  v.  Shea,  67  Iowa  728, 
25  A'.  IV.  Rep.  901. 

A  court  of  equity  has  jurisdiction  to  re- 
strain by  injunction  the  collection  of  a  tax 
which  has  been  certified  by  mistake  by  the 
clerk  to  have  been  voted  in  aid  of  a  railroad, 
when  in  fact  the  proposition  for  the  levy  of 
the  tax  was  defeated.  Catlell  v.  Lowry,  45 
louia  478. 


m 


MUN  '^IPAL  AND   LOCAL  AID,  412. 


r27 


4 


Where  one  of  the  condit  tjiis  of  a  tax 
voted  in  aid  of  a  railroad  is  tiiat  it  should 
not  be  collectible  unless  the  company  should 
construct,  and  maintain,  and  have  in  opera- 
tion by  a  time  named,  a  first-class  railroad 
to  a  good  and  sufficient  depot  to  be  erected 
at  a  specitied  place,  the  condition  is  not 
sufficiently  complied  with  by  the  construc- 
tion of  a  road  and  depot  in  such  an  incom- 
plete and  imperfect  manner  that  the  ordi- 
nary business  of  a  railroad  cannot  be  trans- 
acted at  the  place  in  question.  Cox  v. 
Forest  City  &*  S.  A'.  Co.,  66  Iffwa  289,  23  A'. 
W.Rep.  672. 

Taxes  voted  to  a  corporation,  under  cli. 
123,  Laws  of  1876,  to  aid  in  the  construction 
of  a  railroad,  after  the  corporation  has 
transferred  its  road  in  pursuance  of  a  pur- 
pose entertained  from  the  beginning,  of 
which  public  notice  was  given  to  the  voters 
before  the  election,  cannot  be  collected,  and 
their  collection  may  be  enjoined,  notwith- 
standing the  taxpayers  remained  silent  while 
they  saw  the  road  built  by  the  company  to 
which  it  was  so  transferred,  knowing  that 
such  company  was  building  it  in  reliance  up- 
on the  payment  of  the  taxes.  To  allow  the 
taxes  to  be  collected  under  such  circum- 
stances would  be  to  disregard  the  terms  of 
the  statute,  and  would  work  gross  injustice 
to  the  minority  who  voted  against  the  tax. 
Blunt  V.  Carpenter,  58  loum  265,  26  N.  IV. 
Rep.  438.— Following  Manning  7/.  Math- 
ews, 66  Iowa  675. 

Where  a  tax  was  voted  in  aid  of  a  proposed 
railroad,  but  the  statute  under  which  it  was 
voted  was  repealed  before  the  levy  was  made, 
and  the  company  in  whose  favor  the  tax 
was  voted  had  not,  prior  to  the  repeal,  ex- 
pended any  money  in  reliance  upon  the  tax 
ill  constructing  the  road,  and  never  did  con- 
struct it,  but  transferred  it  by  a  perpetual 
lease  to  another  company,  which  did  con- 
struct it,  but  there  was  no  a'ssignment  or 
transfer  of  the  tax  to  such  otlier  company, 
and  it  does  not  appear  that  such  company 
constructed  the  road  relying  upon  the  tax  — 
held,  that  the  collection  of  the  tax  was  prop- 
erly enjoined.  Harthel  v.  Meatier,  72  Iowa 
•25,33  ^-  ^^-  l<''P-  446.— DrSTINGUISHING 
Burges  v.  Mabin,  70  Iowa  633. 

(II)  When  an  injunction  ivili  be  refused.  — 
The  collection  of  a  tax  will  not  be  enjoined 
on  the  ground  of  irregularity  in  the  levy 
when  the  purpose  to  levy  the  tax  and  have 
it  collected  is  plainly  manifest,  and  substan- 


tially in  the  niaifner  provided  by  law.  West 
V.  W'hitaker,  y]  Lnva  598. 

The  collection  of  a  railroad  tax  cannot  be 
defeated  by  a  change  in  the  location  of  the 
road  after  the  tax  is  voted,  when  it  violates 
no  condition  of  the  vote.  S/tontz  v.  Evans, 
40  Iowa  1 39. 

Where  a  tax  has  been  voted  to  aid  a  rail- 
road, the  fact  that  a  narrow  gauge  road  is 
constructed  is  not  sufficient  ground  for  re- 
straining the  collection  of  the  tax.  Aleader 
V.  Lowry,  45  Iou<a  684. 

Where  a  township  has  voted  aid  to  a 
railroad,  and  the  certificate  made  by  the 
township  clerk  to  the  county  auditor  does 
not  show  all  the  conditions  upon  which 
the  tax  was  voted,  as  required  by  the  stat- 
ute, except  by  reference  to  a  copy  of  the 
notice  of  the  election  which  was  attached 
to  the  certificate,  after  the  road  is  built  ac- 
cording to  the  terms  of  the  vote  the  collec- 
tion of  a  tax  will  not  be  enjoined  because 
the  certificate  is  not  sufficient  in  itself  to 
show  such  fact.  Chicago,  M.  &•  St.  P.  R, 
Co.  V.  SIiea,67  Iowa  728,  25  A',  ir.  Rep.  901. 
—Distinguishing  Minnesota  &  I.  S.  R. 
Co.  7'.  Hiams,  53  Iowa  501. 

(12)  Recovery  0/ money  paid  under  illegal 
tax. — While  the  provisions  of  ch.  171,  Laws 
186S,  requiring  a  registration  of  voters,  are 
mandatory  and  imperative,  and  a  tax  voted 
at  an  election  where  the  voters  hiive  not 
registered  is  illegal,  yet  an  action  will  not 
lie  to  compel  the  county  treasurer  to  re- 
fund the  amount  of  the  tax  after  it  has  been 
collected  and  paid  over  to  the  railroad  com- 
pany. Butler  V.  Fayette  County  Sup'rs,  46 
/07t/a  326.  —  Distinguishing  Lauman  v. 
Des  Moines  County,  29  Iowa  310;  Tallant 
7/.  Burlington,  39  Iowa  543;  Isbell  v.  Craw- 
ford County,  40  Iowa  102;  Dubuque  &  S. 
C.  R.  Co.  V.  Webster  County  Sup'rs,  40 
Iowa  16. 

Where  taxes  to  aid  a  railway  are  voted 
in  two  or  more  townships  in  a  county,  in 
one  of  which,  after  a  part  of  the  taxes  have 
been  collected,  the  tax  is  declared  illegal, 
the  treasurer  is  not  authorized  to  refund 
the  taxes  illegally  collected  out  of  the  taxes 
lawfully  collected  from  the  other  townships, 
and  a  mandamus  will  lie  to  compel  him  to 
pay  the  latter  over  to  the  company.  Des 
Moines  &*  M.  R.  Co.  v.  Lorory,  5 1  /owa  486, 
I  A^.   W.  Rep.  782. 

One  who  has  paid  to  the  county  treasurer 
a  tax  in  aid  of  a  railroad,  which  is  after- 


I 


%'*    / 


IT- 

k 


728 


MUNICIPAL   AND   LOCAL   AID,  412. 


wards  declared  ille),'al  and'iion-collectiblc, 
is  iKJt  eiitilled,  in  an  action  against  the 
county,  to  a  judgint-nt  in  tiie  nature  of  an 
onlcr  requiring  tlie  county  to  direct  the 
treasurer  to  repay  tlie  tax  out  of  the  fund 
remaining  in  his  liands,  or  to  direct  the 
supervisors  to  issue  an  order  to  the  treas- 
urer to  that  eflect;  but  his  remedy  is  by 
ii)and;inius  against  the  treasurer  or  super- 
visor, or  both,  to  compel  them  to  do  tlieir 
duty  and  return  the  tax  illegally  collected. 
Eyerly  w.  Jasper  County,  72  liwa  149,  33  A'. 
iV.  Rep.  609. 

Where  money  is  paid  into  the  county 
treasury  under  the  provisions  of  the  law 
for  voting  taxes  in  aid  of  the  construction 
of  railroads,  such  money  in  the  hands  of 
the  treasurer  is  a  trust  fund,  and  the  tax- 
pay-T  and  the  railroad  company  are  both 
beneficiaries.  Eytrly  v.  Jasper  County 
Sup'rs,  77  lorva  470,  42  A'.   W.  Rep.  374. 

Where  taxes  voted  in  aid  of  the  construc- 
tion of  a  railroad  were  paid,  and  soon  there- 
after a  suit  was  begun  by  the  payers  and 
others  against  the  railroad  company  to  test 
the  validity  of  the  tax,  and  it  was  subse- 
quently decreed  to  be  invalid — held,  that 
while  such  action  was  pending  the  statute 
of  limitations  did  not  run  against  the  action 
of  mandamus  to  compel  the  supervisors  of 
the  county  to  order  a  refunding  of  the  tax 
so  paid.  Eyerly  v.  Jasper  County  Sup'rs, 
77  Iowa  470,  42  A'.  IV.  Rep.  374. 

(13)  or  upon  forjeiture  by  company, — 

A  county  acquires  no  beneficial  interest  in 
taxes  voted  in  aid  of  a  railroad  and  paid  to 
the  county  treasurer,  and,  cannot  be  held 
responsible  for  their  repayment  when  for- 
feited by  the  railroad  company.  Barnes  v. 
Marshall  County,  56  Iowa  20. 

A  county  is  in  no  way  interested  in  the 
voting  of  tuxes  in  its  various  townships  in 
aid  of  railroads,  and  cannot  be  required  to 
pay  any  part  of  the  expense  thereby  in- 
curred. MiliriUe  v.  Hardin  County.  7  Ant. 
&»  EuiT.  R,  Cas.  221,  58  Iowa  219,  lu  A'.  W. 
Rep.  247. 

In  an  action  against  a  county  to  recover 
a  portion  of  railroad  aid  taxes  collected  by 
the  treasurer,  which  was  retained  by  him 
and  passed  into  the  general  county  fund, 
the  county  cannr)t  set  up  the  fact  that  the 
companies  for  which  the  taxes  were  levied 
had  sold  and  conveyed  all  their  property 
and  franchises  before  the  taxes  were  due 
and  collectible,  although  such  defense  might 
have  been  a  good  one  for  the  taxpayers  in 


resisting  the  payment  of  the  tax.  Merrill 
V.  Marshall  County,  74  Iowa  24,  36  N.  IV. 
Rep,  778. 

Korean  the  county  defeat  a  recovery  in 
such  case  on  the  ground  that  the  taxes 
have  been  forfeited  by  being  permitted  to 
remain  in  the  treasury  more  than  two  years 
(Laws  of  1876,  ch.  123.  g  7),  where  it  appears 
that  the  roads  for  which  tlie  ta?:cs  were 
voted  were  built,  and  the  taxeb,  except  tlie 
per  cent,  in  controversy,  were  paid  in  in- 
stalments to  the  persons  entitled  thereto, 
and  that  there  was  a  continuing  demand 
by  them  for  the  portion  withheld.  Merrill 
V.  Marshall  County,  74  Iowa  24,  36  A".  VV. 
Rep.  778. 

Where  a  railroad  aid  tax  in  dispute  has 
been  placed  in  the  general  county  fund,  and 
has  been  expended  in  paying  the  county's 
ordinary  indebtedness,  a  judgment  therefor 
is  properly  rendered  against  the  county. 
Merrill  v.  Marshall  County,  74  Iowa  24,  36 
A'.  //'.  yiV/.  778.— Distinguishing  Barnes 
V.  Marshall  County,  56  Iowa  20. 

(14)  Penalties  Jor  delinquency.— Though 
the  statute  restricts  taxation  in  aid  of  rail- 
roads to  live  per  cent,  of  the  taxable  prop- 
erty of  a  county,  still  delinquents  may  be 
compelled  to  pay  a  penalty  for  a  delay  in 
makin<j  payment  in  addition  to  the  five  per 
cent,  tax  ami  interest  thereon.  Chicago,  M. 
&•  .S/.  /'.  R.  Co.  V.  Hartshorn,  30  Fed.  Rep. 
541.  To/'in  V.  Hartshorn,  69  Iowa  648,  29 
A'.   //' .  Rep.  764. 

And  a  statute  repealing  a  former  one 
which  autliorizes  townships  to  vote  aid  to 
railroads  docs  not  repeal  the  penalties 
against  such  delinquent  taxpayers  which 
have  accrued  at  the  time  of  the  repealing 
act.  Chicago,  M.  6-  St.  P. . .'.  Co.  v.  Harts 
horn,  30  Fed.  Rep.  541. 

For  the  failure  to  pay  a  tax  voted  in  aid 
of  a  r.ilroad  under  ch  123,  Laws  of  1876, 
the  penalties  provided  by  section  866  of  the 
Code  were  incurred  ;  but,  as  the  statute  first 
named  was  repealed  by  ch.  159,  Laws  of 
1884,  which  took  eflect  April  9,  1884,  the 
penalties  then  ceased  to  accrue,  although 
those  which  had  accrued  were  not  affected 
by  the  repeal  of  the  statute  (Code,  §  45. 
par.  i).  And,  as  the  penalty  for  the  month 
of  April,  1884,  had  accrued  when  the  stat- 
ute was  repealed,  and  was  payable  May  ist 
following,  the  amount  for  which  the  tax- 
payer was  thereafter  liable  was  the  sum  of 
the  taxes  and  accrued  penalties  with  inter- 
est thereon  at  six  per  cent,  per  annum  from 


MUNICIPAL  AND   LOCAL  AID,  413. 


729 


i^:!' 


May  1 ,  1 884.  Tobin  v.  Hartshorn,  69  Iowa 
648.  29  iV.  W.  Kt-p.  764. 

The  penalty  provided  to  enforce  the  pay- 
ment of  u  tax  in  aid  of  a  railroad  under  cli. 
123,  Laws  of  Iowa  1876,  was  but  a  remedy, 
in  which  the  corporation  had  no  vested 
right  except  so  far  as  tiie  penalty  had  al- 
ready accrued,  and  it  was  in  the  power  of 
the  legislature  to  cut  olT  its  further  opera- 
tion as  to  u  tax  already  voted  by  repealing 
the  statute.  Tobin  v.  Hartshorn,  69  Iowa 
648.  29  A'.   W.  Kep.  764. 

(15)  Sale  of  lands  for  non-payment, — 
Plaintitl's  land  was  sold  for  delinquent  state 
and  county  taxes  at  a  time  when  certain 
taxes  voted  in  aid  of  a  railroad  were  also 
delinquent  and  a  lien  upon  the  land.  After- 
wards the  land  was  again  sold  for  the  rail- 
road  tax,  and  after  this  plaintif!  redeemed 
from  the  first  sale,  and  brought  an  action 
to  set  aside  the  second  sale  as  void  on  ac- 
count of  the  first  sale,  relying  upon  section 
871  of  the  Code,  which  provides  that  a  sale 
fur  delinquent  taxes  "  shall  be  made  for,  and 
in  payment  of,  the  total  amount  of  taxes, 
interest,  and  costs  due  and  unpaid  on  such 
property."  Held,  that  the  word  "  taxes  "  in 
said  section  must  be  construed  to  mean 
state  and  county  taxes  only,  and  not  railroad 
taxes,  and  that  the  second  sale  for  the  rail- 
road taxes  must  be  sustained.  Crowell  v. 
Merrill,  60  Iowa  53, 14  N.  IV.  Rep.  81. — Re- 
viewing Dennison  v.  Keokuk,  45  Iowa  366. 

4i;i.  KuiiHii!*.— The  localities  along  the 
line  of  a  railroad  may  be  taxed  to  aid  its 
construction  and  operation  if  they  choose 
to  take  stock  therein  and  issue  bonds  there- 
to ;  and  a  fair  rule  of  apportionment,  of  which 
tile  taxpayers  cannot  complain,  is  to  allow 
the  localities  to  be  taxed  the  privilege  of 
say  ins;  how  much  the  benefit  of  the  im- 
provements is  worth  to  them  and  for  what 
amount  they  are  willing  to  be  taxed.  Leav- 
emvorth  County  Com'rs  v.  Miller,  7  Kan. 
479.  I  Atn.  Ky.  Kfp.  259.— Quoted  in  Alvis 
V.  Whitney,  43  Ind.  83;  Chicago,  K.  &  W. 
R.  Co.  V.  Ozark  Tp.,  46  Kan.  415. 

The  proviso  of  Comp.  Laws  of  1885,  §  i, 
is  a  limitation  of  the  amount  to  be  sub- 
scribed by  a  township  in  aid  of  railroads, 
whether  it  extends  to  one  or  to  several 
roads.  Up  to  this  limit  it  may  be  voted  to 
one  company  or  it  may  be  divided  among 
several,  but  the  sum  of  %\  5,000,  and  five  per 
cent,  additional  of  the  assessed  value  of  the 
property  of  the  township,  is  all  that  can  be 
legally    voted    undet     any    circumstances. 


Chicago,  K.  &•  IV.  A'.  Co.  v.  Osage  County 
Com'rs,  38  Kan.  597,  16  Pac.  Rep.  828. 

An  invalid  attempted  incorporation  of  a 
city  and  separation  of  it  from  a  township 
will  not  release  its  taxable  inhabitants  from 
liability  on  railroad  aid  bonds  which  they 
assisted  in  voting  upon  the  township,  nor 
from  liability  on  funding  bonds  issued  by 
the  township  to  cancel  and  satisfy  the 
bonds  originally  issued,  although  the  people 
of  the  city  took  no  part  in  the  funding 
operations.  Oswego  Tp.  v.  Anderson,  44 
Kan.  214,  24  Pac.  Rep.  486.— FOLLOWING 
Brown  v.  Milliken,  42  Kan.  769. 

A  contract  between  the  city  officers  and 
the  township  officers,  to  which  the  holders 
of  the  bonds  were  not  parties,  adjusting 
the  bonded  debt  between  the  city  and 
the  township,  and  stipulating  that  upon 
payment  of  a  certain  sum  of  money  by  the 
citjrto  the  township  the  city  will  be  released 
from  the  lien  of  such  bonds,  and  from  taxa- 
tion to  pay  the  same,  is  unauthorized  and 
void,  and  will  not  prevent  a  levy  of  taxes 
upon  the  property  of  the  entire  territory 
subject  to  taxation  for  the  payment  of  such 
bonds  in  accordance  with  law.  Oswego  Tp. 
v.  Anderson,  wKan.  214,  2^  Pac.  Rep.  486. 

The  city  of  Atchison,  under  section  30  of 
its  charter,  had  power  to  subscribe  for  rail- 
road stock,  to  issue  bonds  therefor,  and  to 
pay  the  principal  and  interest  thereon  by  a 
tax  upon  real  and  personal  property  within 
the  limits  of  the  city  (though  the  road  was 
without),  the  object  of  the  power  being  le- 
gitimate— to  build  up  the  material  interests 
of  the  city.  The  provision  for  submitting 
the  tax  to  a  vote  does  not  invalidate  the 
law,  but  the  general  tax  for  purposes  includ- 
ing that  cannot  exceed  the  charter  limits  of 
one  per  cent,  of  the  assessed  value  of  the 
real  and  personal  property.  Humes  v.  Mayor, 
etc.,  of  Atchison,  2  Kan.  454. — Distinguish- 
ing Barto  V.  Hiinrod,  8  N.  Y.  483.  Re- 
viewing Bank  of  Rome  v.  Rome,  18  N.  Y. 

38. 

The  legislature  detached  from  Sedgwick 
county  a  portion  of  its  territory  and  at- 
tached it  to  the  new  county  of  Harvey.  It 
declared  that  this  detached  territory  should 
continue  liable  for  a  certain  proportion  of 
the  railroad  bonded  indebtedness  of  Sedg- 
wick county,  and  that  the  county  clerk  of 
Harvey  county  should  annually  apportion 
on  the  property  of  this  territory  the  amount 
of  taxes  necessary  to  pay  such  proportion  of 
the  indebtedness.     Upon  the  failure  of  the 


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MUNICIPAL  AND   LOCAL  AID,  414. 


^  i  : 


clerk  of  Harvey  county  to  make  this  appor- 
tionment the  board  of  county  commis- 
sioners of  Sedgwick  county  are  proper 
parties  plaintifT  in  a  proceeding  by  man- 
damus against  him  to  compel  him  to  per- 
form sucii  duty.  Sttifrii'ick  County  Com'rs  v. 
Bailey,  ri  Kan.  631. 

414.  Kentucky.— (1)  T/ie  statutes.— 
If  the  taxing  power  exist  and  a  tax  be  right- 
fully levied,  it  is  not  rendered  invalid  by  a 
provision  in  the  law  for  its  repayment  or 
partial  repayment  to  the  taxpayer  by  a  pro- 
portional share  of  the  stock  subscribed  by 
the  city,  by  which  he,  perhaps,  may  be,  in 
the  end  at  least,  partially  remunerated  for 
the  payment  of  his  tax,  or  because  the  benefit 
might  not  be  equal  in  its  operation.  Talbot 
V.  Dent,  9  B.  Mon.  {Ky.)  526. 

Under  the  act  of  Feb.  24,  1868,  amending 
the  charter  of  the  Elizabethtown  &  Paducah 
railroad,  a  county  judge  alone,  without  the 
justices  of  the  county,  may  levy  a  tax  to  pay 
a  judgment  on  coupons  of  bonds  issued  for 
stock  in  said  road.  Meriwether  v.  Aluhlen- 
burg  County  Court,  1 20  U.  S.  354,  7  Sup.  Ct, 
Rep.  563. 

The  Shelby  railroad,  chartered  in  1852, 
was  partially  graded,  but,  by  the  exhaus- 
tion of  funds  subscribed  by  the  stockhold- 
ers  entitled  to  conditional  interest  on  their 
stock,  the  work  was  hopelessly  suspended 
until  an  amended  charter  was  granted  in 
1869  at  the  instance  of  citizens  of  that  por- 
tion of  the  county  in  which  the  road  Is 
located.  This  amendment  authorized  a 
subscription  of  as  much  as  $300,000  addi- 
tional stock  by  the  citizens  within  a  defined 
boundary  of  the  section  of  the  county 
through  which  the  road  runs,  and  also  pro- 
vided that  the  original  stockholders  should 
not  have  the  conditional  interest  on  their 
stock,  as  provided  in  the  original  charter. 
A  majority  within  that  boundary  voted  for 
a  subscription  of  $300,000.  The  county 
judge,  in  that  event,  was  directed  by  the 
amended  charter  to  subscribe  the  amount 
voted  for,  to  be  collected  by  a  tax  on  the 
taxpayers  witliin  the  prescribed  boundary, 
to  be  levied  as  their  revenue  taxation  Is 
levied.  The  county  judge  refused  to  make 
the  subscription,  and  appealed  from  the 
judgment  of  the  circuit  court  requiring  him 
to  do  soon  mandamus.  Held,  that  so  much 
of  the  amendment  as  required  the  former 
stockholders  to  waive  Interest  was  constitu- 
tional, and  that  the  tax  on  only  a  section  of 
the  county  was  constitutional,  as  the  legisla- 


ture may  create  a  district  for  the  purpose  of 
taxation  or  assessment  without  reference  to 
existing  civil  or  |>oiiticai  districts.  Shelby 
County  J  uiige  v.  Shelby  A'.  Co.,  5  Bush  (Ky.). 
225. 

Under  Ky.  Act  of  March  15,  1851,  in- 
corporating the  Shelby  railroad  company,, 
authorizing  a  certain  county  to  subscribe 
for  stock  therein,  and  to  levy  taxes  to  piiy 
the  same,  and  the  subsequent  amendments 
thereto  of  Feb.  3,  1869,  and  Marcii  11,  1870,. 
which  authorize  a  part  of  the  county  tO' 
subscribe,  individual  taxpayers  are  entitled 
to  a  certificate  of  stock  for  the  taxes  paid, 
which  they  may  vote  as  stocklxjlders ;  but 
taxes  paid  merely  to  discharge  interest  on 
the  bonds  do  not  entitle  the  taxpayers  ta 
such  certificates  of  stock,  though  the  county, 
or  a  part  of  the  county,  voting  the  bonds  is 
entitled  itself  to  vote  the  amount  of  the 
stock  represented  by  the  bonds  still  out- 
standing. Hancock  v.  Louisville  «S-  A'.  R. 
Co.,  145  U.  S.  409,  12  Sup.  Ct.  Rep.  969. 

(2)  What  property  is  taxable,  generally .— 
Farming  lands  In  the  city  of  Henderson 
exempted  from  taxation  by  the  city  council 
for  city  purposes  are  also  exempted  from 
taxation  for  the  payment  of  subscriptions  of 
stock  to  the  Evansvllle,  Henderson  &  Niish- 
vllle  R.  Co.  But  such  exempted  farming 
lands  are  subject  to  taxation  for  school  pur- 
poses under  the  provisions  of  the  act  of 
March  15,  1869.  The  act  of  Feb.  11.  1867, 
extending  the  corporate  limits  of  the  city  of 
Henderson,  but  expressly^exempting  one 
hundred  and  two  acres  of  farming  land  be- 
longing to  L.  from  city  taxation,  and  the  act 
of  March  9,  1867,  authorizing  taxation  for 
the  payment  of  subscriptions  of  stock  in  the 
Evansville,  Henderson  &  Nashville  R.  Co., 
were  passed  at  the  same  session  of  the  legis- 
lature, and  in  so  far  as  they  directly  relate 
to  the  same  subject  — i.e.,  of  taxation  in  the 
city  of  Henderson — they  must  be  construed 
as  one  entire  act ;  and  to  make  a  later  pro- 
vision repeal  a  former  there  must  be  an 
express  declaration  of  that  intention,  or  an 
absolute  Inconsistency  between  them.  Hen- 
derson V.  Lambert,  8  Bush  {Ky.)  607. 

The  Deposit  Rank  of  Eminence,  having 
Its  place  of  business  in  the  town  of  Emi- 
nence, which  had  subscribed  stock  In  the 
Cumberland  &  Ohio  R.  Co.  and  had  issued 
bonds  to  pay  for  it  under  the  ciarter  of  snid 
railroad  company,  authorizing  said  town  to 
levy  and  collect  a  tax  upon  such  taxable 
property  in  the  town  as  Is  listed  and  taxed 


I'^rl 


MUNICIPAL  AND   LOCAL  AID,  414. 


731 


(A>.) 


in- 


under  the  revenue  laws  of  liie  state,  is  not 
liable  under  such  charter  to  be  taxed  on 
the  amount  of  its  capital  stock.  Eminence 
V.  Deposit  Rank,  12  Bush  (Ky.)  538. 

The  bank  must  be  regarded  as  residing 
in  the  town  in  which  it  has  its  place  of  busi- 
ness, and  whatever  it  owns,  such  as  its 
banking  house  and  other  tangible  property 
in  the  town,  is  subject  to  taxation  under  the 
railroad  charter,  but  the  capital  stock  of  the 
bi<nk  is  a  liability  for  which  the  bank  is  a 
debtor  to  its  stockholders.  Eminence  v. 
Deposit  Hank,  1 2  Bush  (A>.)  538. 

Legislative  judgment  and  discretion  con- 
trol in  establishing  tax  dii^tricts  and  in 
determining  the  objects  to  be  taxed  to  aid 
in  the  construction  of  railroads  through 
such  districts.  Whether  the  lands  of  par- 
ticular individuals  located  in  the  district 
defined  by  the  legislature  receive  any  direct 
benefits  from  the  railroad  is  not  a  question 
to  be  inquired  into  by  the  courts.  McEer- 
ran  v.  Alloway,  14  Bush  (Ky.)  580.— Re- 
viewed IN  Henderson  Bridge  Co.  v.  Hen- 
derson', 90  Ky.  498. 

Six-mile  Island,  in  the  Ohio  river,  lying 
within  and  composing  part  of  Harrod's 
Creek  precinct,  in  Jefferson  county,  is  sub- 
ject to  oe  taxed  for  the  payment  of  the 
bonds  of  said  precinct  issued  to  aid  in  the 
construction  of  a  narrow  gauge  railroad 
through  said  precinct,  although  the  owner 
of  said  island  may  not  derive  any  direct 
benefit  from  said  railroad.  McFerran  v. 
Alloway,  14  Bush  (Ky.)  5S0. 

(3)  Railroad  property,  when  taxable.  — A 
railroad  cannot  to  any  extent  be  liable  to 
be  taxed  by  a  county  to  pay  the  subscrip- 
tion of  such  county  for  the  purpose  of 
completing  the  construction  of  the  road. 
The  object  of  such  a  county  tax  would  be 
inconsistent  with  the  obligation  of  the 
county  to  pay  a  speciQc  sum  for  stock  in 
the  railroad  to  cid  other  stockholders  to 
make  and  equip  the  road.  Appleffate  v. 
Ernst,  3  Bush  (Ky.)  648.— DiSTlNC.uiSHED 
IN  Lincoln  County  Court  7>.  Louisville  &  N. 
R.  Co.,  (Ky.)  7  Am.&  Eng.  R.  Cas.  320.— 
Louisville  &»  N.  N.  Co.  v.  Com.,  41  Am.  &■• 
Eng.  A\  Cas.  595,  89  A>.  531,  12  5.  IV.  Rep. 
1064. 

This  rule  does  not  fully  apply  when  the 
road  has  been  purchased  by  and  become 
the  property  of  a  new  company  to  which 
the  county  does  not  sustain  the  relation  of 
stockholder  or  joint  owner.  In  such  a  case 
whenever  the  new  company  has  made  an 


addition  or  accession  to  the  property  pur- 
chased, whether  consisting  in  completing 
an  unfinished  road  or  increasing  the  capac- 
ity for  business  and  advantages,  and  conse- 
quently the  value  of  the  road  already  com- 
pleted, what  is  thus  added  or  annexed  is 
not  exempt,  because  the  county  neitiier 
contributes  to  nor  has  any  interest  in  it. 
Louis%'illc&'  N.  R.  Co.  v,  Hopkins  County,  yj 
Ant.  Sf  Ent;.  R.  Cas.  400,  87  A'r.  603, 9  i'.  //'. 
/iV/. 497.— Criticising  Ray?/.  Bank  of  Ky., 
3  B.  Mon.  (Ky.)  510.  Distinouishino  Ap- 
plegate  v.  Ernst,  3  Bush  (Ky.)  648.  Quot- 
ing Clark  County  Court  7'.  Elizabethtown, 
L.  &  B.  S.  R.  Co.,  M.  S.  opinion  ;  Under- 
wood V.  Brocktnan,  4  Dana  (Ky.)  309. 

After  a  county  had  issued  bonds  in  iiid  of 
a  railroad  it  procured  a  special  enactment 
authorizing  it  to  compromise  with  bond- 
holders, the  act  further  providing  for  a  r^^- 
\i\at  atl  valorem  tax  levifl  annually  "accord- 
ing to  the  assessment  lists  reported  by  the 
assessor."  Under  the  existing  law  jit  the 
time,  railroad  property  was  assessed  by  a 
board,  and  not  by  a  local  assessor,  //ehi, 
that  the  act  contemplated  that  the  property 
of  the  railroad  as  well  as  all  other  property 
in  the  county  should  he  assessed  and  bear 
its  iust  proportion  of  the  tax.  Elizabeth- 
to7on,  L.  &*  B.  S.  R.  Co.  v.  Carter  County, 
(Ky.)  18  .S'.  W.  Rep.  370.  —  Following 
Louisville  &  N.  R.  Co.  v.  Hopkins  County, 
87  Ky.  605.  9  S.  VV.  Rep.  497. 

A  company's  right  to  be  exempted  from  a 
tax  to  pay  a  county  subscription  is  not 
affected  by  the  fact  that  the  road  before  its 
completion  was  leased  to  another  company, 
which  under  its  contract  completed  the 
road.  If  the  lessee  had  purchased  the  road 
and  completed  it,  a  different  case  would  be 
presented.  Louisville  iS~«  A'.  R.  Co.  v.  Com., 
41  Am.  &*  Eng.  R.  Cas.  595,  89  Ky.  531,  12 
S.  W.  Rep.  1064. 

Where  the  legislature  has  by  consent  of 
all  the  stockholders  merely  divided  a  rail- 
road company  into  two  distinct  companies, 
and  the  county  has,  by  virtue  of  the  charter 
of  the  original  company  and  the  subse- 
quent legislation,  become  a  stockholder  of 
one  of  such  companies  under  a  subscrip- 
tion in  aid,  the  equity  which  the  old  com- 
pany had  to  exemption  from  taxation  to 
pay  the  subs(  ription^to  it  passes  to  the  new 
company.  Louisville  &»  A'.  R.  Co.  v.  Com., 
41  /////.  (S-  Eng.  R.  Cas.  595,  89  Ky.  531,  12 
S.   IV.  Rep.  1064. 

(4)  Po7vers  of  collector,  and  liability  of 


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MUNICIPAL   AND   LOCAL   AID,  415,410. 


A/s  sureties,— \  special  tax  collector  ap- 
pointed by  law  to  collect  a  tax  to  pay  county 
subscriptions  to  tbe  stock  of  a  road,  which 
appointment  empowers  liim  to  collect  the 
taxes  in  the  same  manner  as  sheriffs  in  i\\6 
collectiDii  of  ordinary  state  taxes,  has  by 
im[>licaiion  tiie  power  to  appoint  deputies 
to  assist  iiini  in  such  collection.  PnUer  v. 
Sir  other,  (A>.)  13  .V.   W.  Rep.  252. 

A  bond  was  executed  by  the  sheriff  of 
F^ourbon  county  on  Jan.  i,  1855  (at  the 
time  he  qualified  as  sheriff),  for  the  collec- 
tion and  payment  of  "  the  county  levy  and 
public  dues  "  of  the  county  for  that  year. 
Held,  that  it  embraced  taxes  levied  by  the 
county  court  in  October,  1854,  to  be  collected 
in  1 85 J,  to  pay  tiie  interest  on  bonds  pre- 
viously issued  by  the  county  to  the  Mays- 
ville  &  Lexington  and  Covington  &  Lex- 
ington railroad  companies.  The  sheriH,  by 
virtue  of  his  office,  had  complete  legal  au- 
thority to  collect  said  railroad  tax,  and  his 
sureties  in  the  bond  were  liable  for  his  fail- 
ure to  pay  over  the  same.  Taylor  \,Nunn, 
2  Mete.  {Ky.)  199. 

The  fact  that  the  county  court  by  a  sub- 
sequent order  made  in  June,  1855,  before 
any  of  the  railroad  tax  was  collected,  ap- 
pointed the  sheriff  collector  thereof  for  that 
year  (who  thereupon  executed  bond  with 
security)  did  not  supersede  him  as  collector 
in  the  capacity  of  sheriff,  nor  annul  or  revoke 
the  official  authority  with  which  he  was  al- 
ready invested  by  law,  and  which  .could 
have  been  revoked  only  by  the  appoint- 
ment of  some  other  person  as  collector  of 
the  special  tax.  Taylor  v.  Nunn,  2  Mete. 
KKy.)  199. 

( 5)  Enjoiniitg  collection. — The  county  court 
acts  ministerially,  and  not  judicially,  in  mak- 
ing a  subscription  of  stock  on  behalf  of  the 
county  ;  and  the  circuit  court  has  power  to 
dt.-clare  such  a  subscription  void  when  made 
without  authority  of  law,  and  to  enjoin  the 
collection  of  a  tax  to  pay  it.  Kentucky 
Union  R.  Co.  v,  Bourbon  County,  85  Ky,  98, 
2  S.  ir.  Rep.  687.— Distinguishing  Shelby 
County  Court  7'.  Cumberland  &  O.  R.  Co., 
8  Bush  (Ky.)  209. 

415.  LoiiiNiniia.— Where  a  parish  tax 
is  levied  to  pay  subscriptions  of  stock  in 
corporations,  the  expenses  of  collecting  such 
tax  must  be  borne  by  the  parish,  and  not  by 
the  corporation.  Boutte  v.  Bryant,  10  La, 
Ann.  659. 

An  injunction  will  not  issue  at  the  in- 
stance of  the  taxpayers  of  a  municipal  cor- 


poration to  prevent  the  ofTicers  of  that 
corporation  from  holding  an  election,  under 
the  authority  of  a  legislative  act,  to  enable 
the  citizens  of  the  corporation  to  vote  to 
levy  or  not  levy  a  certain  tax  on  themselves. 
The  action  is  premature ;  no  right  of  the 
plaintiffs  is  as  yet  invaded,  and  the  danger 
they  seek  to  shun  is  too  remote  and  con- 
tingent to  warrant  the  issuance  of  an  in- 
junction. Roudanez  v.  Mayor,  etc.,  of  New 
Orleans,  29  La.  Ann.  271.— Quoting  Miller 
V.  Grandy,  13  Mich.  548. 

Notwithstanding  a  private  corporation  is 
organized  for  the  double  purpose  of  building 
a  railway  and  erecting  a  cotton  compress, 
the  former  a  public  improvement  and  the 
latter  a  private  enterprise,  a  special  tax 
voted  in  its  behalf  in  aid  of  the  construction 
of  the  former  alone  is  valid.  MacKenzie  v. 
Wooley,  39  La.  Ann.  944,  3  .So,  Rep,  128. 

A  tax  of  five  mills,  voted  a  number  of 
years  since,  to  aid  in  the  construction  of  n 
railroad,  which  afterward  allowed  the  time 
to  lapse  within  which  to  commence  the 
work,  and  has  never  taken  any  steps  toward 
complying  with  the  condition  of  the  con- 
templated contract,  will  not  be  considered  in 
determining  whether  defendants  exceeded 
their  power  '  .  having  a  special  tive-mill  tax 
levied  and  collected.  Reynolds  &*  //.  Constr. 
Co.  V.  Police  Jury,  44  La.  Ann.  863,  1 1  So. 
Rep.  236. 

An  agreement  relieving  a  corporation 
from  the  payment  of  the  five-mill  special 
tax  for  a  consideration  is  not  in  contraven- 
tion of  art.  203  of  the  constitution  so  long 
as  no  injury  arises  therefrom.  The  police 
jury  is  without  authority  to  question  the 
validity  of  the  special  tax  on  the  ground 
that  a  corporation  has  been  released  by  it 
from  its  payment.  Reynolds  &•  H.  Constr. 
Co.  V.  Police  Jury,  44  La.  Ann.  863,  1 1  So. 
Rep.  236. 

4 10.  MicliiKtlif.— There  is  no  mode  in 
which  aid  to  a  railroad  running  through 
many  municipalities  can  be  given  by  the 
taxation  of  all,  consistently  with  any  recog- 
nized theory  of  taxation,  without  an  appor- 
tionment of  the  burden,  by  some  rule  or 
upon  some  basis,  among  them  all ;  and  this 
would  be  impossible  under  a  system  by 
which  one  township  might  tax  itself  ten  per 
cent,  of  its  valuation,  another  equally  bene- 
fited by  the  same  object  refuse  to  pay  but 
one,  and  the  third  decline  altogether  to  bear 
any  share  of  the  common  burden.  People 
ex  rel,  v.  State   Treasurer,  23  Mich.  499,  i 


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MUNICIPAL  AND   LOCAL  AID,  417, 418. 


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rier 
ible 

to 

vcs. 
the 
iger 


iller 


Am.  Ry,  Rep,  96.— Disapprovkd  in  Piiic 
Grove  Tp.  v.  Talcott.  ly  Wall.  (U.  S.)  666. 

417.  Ml8HiMHi|>|»i.— The  act  of  Matrh 
15,  1873,  empowers  the  auditor  to  levy  the 
tax  when  the  authorities  of  the  county  neg- 
lect or  refuse  so  to  do,  and  such  neglect  or 
refusal  is  not  on  account  of  any  sufficient 
cause  or  in  consequence  of  pending  and  un- 
decided litigation.  It  does  not  contemplate 
a  legal  controversy  with  the  auditor  to  de- 
termine the  validity  of  the  indebtedness  of 
the  county,  as  no  provision  is  made  for  giv- 
ing notice  to  the  county,  the  real  party  in 
interest ;  nor  is  any  mode  devised  for  in- 
vestigating disputed  issues.  It  implies  that 
litigation  must  be  with  the  boards  of  super- 
visors, for  it  makes  a  pending  litigation  one 
of  the  good  reasons  for  the  board  declining 
to  act.  If  the  liability  of  the  county  has 
been  determined  by  a  court  of  competent 
jurisdiction,  or  if  the  board  of  supervisors 
has  no  valid  objection  to  the  debt,  but  de- 
clines to  tax  merely  to  shield  the  county 
from  its  burden,  then  the  auditor  may  be 
required  to  make  the  assessment.  Musgrm'e 
v.  Vicksburg  &*  N.  R.  Co.,  50  A/t'ss.  677. 

The  act  of  April  6,  1874,  which  repealed 
the  above  act  of  March  15,  1872,  put  an  end 
to  proceedings  against  the  auditor  to  com- 
pel the  levy  of  a  tax,  but  did  not  destroy  or 
impair  any  vested  right  to  which  the  com- 
pany may  have  been  substituted.  Musgrme 
V.  Vicksburg  &*  N.  R.  Co..  50  Miss.  677. 

418.  Missouri.— (I)  The  statutes. —1\\c 
extraordinary  indebtedness  incurred  by  a 
county  in  issuing  bonds  to  pay  a  railroad 
subscription  is  not  one  of  the  "  expenses  of 
the  county  "  within  the  meaning  of  Wagn. 
St.  §  165,  p.  1 193,  and  cannot  be  paid  out  of 
the  fund  raised  by  taxation  under  that  sec- 
tion. State  ex  rel.  v.  Macon  County  Court, 
68  Mo.  29. 

The  fifth  section  of  the  act  of  1868  to  fa- 
cilitate the  construction  of  railroads  (Laws 
1868,  p.  93)  being  unconstitutional  and  void, 
can  furnish  no  valid  authority  to  a  town- 
ship which  has  subscribed  to  a  railroad  to 
retain  the  taxes  collected  from  such  railroad, 
and  they  are  properly  paid  into  the  state 
treasury,  and,  being  so  paid,  the  general 
assembly  cannot  refund  them  to  the  town- 
ship. State  ex  rtl.  v.  Walker,  85  Mo.  41.— 
Approving  Web  >  v.  Lafayette  County,  67 
Mo.  353. 

A  county  cour  cannot  levy  taxes  to  pay 
interest  on  railn  ad  bonds  except  in  con- 
formity to  the  previsions  of  Rev.  St.  §  6799. 


.Stall'  ix  >tl.  V.  .Missouri  l\ic.  R.  Co.,  92  Mo. 
137,0  .V.   W.  I<cf>.  .SOJ. 

Kcviscil  Staiuics  1879,  ^  6790  et  seq.,  re- 
quiring an  order  of  the  circuit  court  or 
judge  to  authorize-  the  county  court  to  make 
a  tax  levy  to  pay  township  railroad  aid 
bonds,  being  unconstitutional  as  applied  to 
a  levy  to  pay  bonds  antedating  the  enact- 
ment of  said  statute,  such  an  order  is  un- 
necessary in  case  of  a  levy  by  the  county 
court  to  pay  such  prior  bouds.  Slate  c.v 
rel.  V.  Hannibal  &*  St.  /.  A'.  Co.,  1 1 3  Mo, 
297,  21  S.  IV.  Rep.  14.— yuoTi.NG  State  ex 
rel.  V.  Wabash,  St.  L.  &  P.  R.  Co.,  97  Mo. 
297. 

Where  in  an  action  to  collect  such  taxes 
there  is  nothing  in  the  evidence  to  show 
the  date  of  the  bonds,  the  court  may  pre- 
sume they  were  issued  prior  to  the  enact- 
ment of  said  section  6790  et  seq.  Slate  ex 
rel.  V.  Hannibal  &*  St,  J,  R.  Co.,  1 1 3  Mo. 
297,  21  S.  W.  Rep,  14. 

The  charter  of  a  railroad  company  author- 
ized any  city,  town,  or  county  to  subscribe  to 
the  stock  of  a  railroad,  and  to  levy  a  tax  to 
pay  the  same,  not  to  exceed  one  twentieth 
of  one  per  cent,  upon  the  taxable  value 
thereof  in  any  one  year.  Subsequently  the 
Mo.  Gen.  St.  of  1866,  ch.  63,  §  17,  was  en- 
acted, authorizing  such  subscriptions  upon 
a  two-thirds  vote,  but  contained  no  limita- 
tion as  to  the  amount  of  taxes  that  might 
be  imposed.  After  the  passage  of  this  stat- 
ute, in  pursuance  of  a  vote,  a  county  made 
a  subscription.  Held,  that  the  subscription 
would  be  deemed  as  made  under  the  general 
statute,  and  therefore  the  powers  of  the 
county  as  to  the  rate  of  taxation  were  not 
limited.  Knox  County  v.  Ninth  Nat.  Bank, 
147  U.  S.  91,  13  Sup.  Ct,  Rep,  267. 

(2)  Va.idity.  —  A  tax  levied  to  pay  the 
bonds  of  a  county  given  in  payment  of  a 
subscription  to  railroad  stock  is  a  county 
tax,  although  the  bonds  can  only  be  pairl 
out  of  a  tax  levied  for  the  special  purpose. 
State  ex  rel.  v.  Hannibal  6-  St,  J,  R.  Co., 
(Mo.)  39  Am.  <S-  Eng.  R.  Cas.  547,  11  S,  IV. 
Rep,  746. 

The  state  courts  having  held  the  Missouri 
"  Township  Aid  Act "  to  be  unconstitu- 
tional, while  the  federal  circuit  court  has  sus- 
tained the  constitutionality  of  the  act,  bonds 
issued  pursuant  to  such  act  are  proper  sub- 
jects of  compromise  under  the  act  of  April 
12,  1877,  and  a  tax  levied  for  the  payment . 
of  bonds  issued  in  terms  of  a  compromise 
is  valid.     State  e.v  rel.  v.  Hannibal  &*  St.  J. 


^' ' 


i 


-VjI 


mmm 


784 


MUNICIPAL   AND    LOCAL   AID,  418. 


r 


i; 


4 


A'.  Co.,  (A/o.)  39  Am.  &*  Eti^.  A',  du.  547,  1 1 

s.  ir.  AV/».  746. 

When  stutuies  direct  pruccedinfjs  to  be 
done  in  u  certain  way  or  at  a  certain  tinu-, 
and  a  strict  compliance  vvitli  tliese  pruvi- 
sioiis  of  time  and  form  docs  not  appear  to 
the  judicial  mind  as  essential,  the  proceed- 
ings will  be  held  valid,  tliou(;h  tlie  com- 
mand ol  the  statute  is  disregarded  or  dis- 
obeyed. This  rule  applied  to  supiwrt  a  levy 
of  taxes  to  pay  railroad  aid  bonds  made 
subsequent  to  the  time  mentioned  in  the 
statute.  S/ii/n  ex  rd.  v.  J/annibal  &*  St.  J, 
A'.  Co.,  113  AU.  297,  21  .S'.  W.  Rep.  14.— Al'- 
I'kuviNc.  Perry  County  7/.  Selma,  M.  &  M. 
R.  Co.,  65  Ala.  394. 

Sections  7653  and  7654,  of  Rev.  St.  of  i88y, 
requiring  levies  for  special  taxes  to  pay 
railroad  aid  bonds  to  be  made  only  on  the 
order  of  the  circuit  court  or  of  the  judge  in 
vacation,  do  not  apply  to  levies  to  pay  bonds 
issued  prior  to  tlieir  enactment.  State  tx 
rel.  V.  Ewing,  116  Mo.  129,  22  i'.  //'.  Hep. 
476. 

(3)  Estoppel  to  deny  iniUility.  —  Payment 
of  town  taxes  for  a  period  of  five  years  by 
the  owners  of  land  not  legally  liable  to  such 
taxation,  submission  for  a  like  |>criod  to  the 
exercise  of  jurisdiction  by  the  town  author- 
ities  in  other  matters,  and  participation  in 
an  election  at  which  a  subscription  to  a  rail- 
road company  was  voted  by  the  town,  in 
payment  of  which  bonds  were  subsequently 
issued,  are  not  sufncient  in  themselves  to 
estop  such  persons  from  disputing  the  legal- 
ity of  such  taxation.  Cameron  v.  Stephen- 
son,  69  AIo.  372. 

(4)  Assessment  of  railroad  property.— T\i^ 
provision  in  the  act  to  facilitate  the  con- 
struction of  railroads  (Sess.  Acts  1868,  p.  92, 
§  2)  requiring  that  the  taxes  for  the  pay- 
ment of  bonds  issued  for  that  purpose  shall 
be  based  exclusively  on  real  estate  is  more 
in  the  nature  of  an  assessment  for  benefits 
than  general  taxation.  The  lands  are  ad- 
judged to  be  benefited  by  the  improvements 
and  are  taxed  in  proportion  to  the  amount 
of  such  benefit,  and  the  whole  tax  and  ex- 
pense is  levied  upon  them.  And  the  princi- 
ple applies  in  its  fullest  extent  to  railroads. 
Section  16.  art.  11,  of  the  constitution, 
against  exempting  property  from  taxation, 
has  reference  only  to  ordinary  and  gen- 
eral taxation  for  the  purposes  of  revenue, 
and  assessments  of  taxes  under  section  2  of 
the  above  act  are  not  such  taxation  as  is 
contemplated  by  the  general  terms  of  the 


constitution.  State  ex  rel.  v.  Linn  County 
Court,  44  Mo.  504.— Reviewki)  in  Mcrri- 
wether  V.  Saline  County,  5  Dill.  (U.  S.)  265; 
Webb  V.  Lafayette  County,  67  Mo.  353. 

Compromisu  or  funding  bonds  Issued 
under  Rev.  St.  1879,  p.  849,  for  bonds  orig- 
inally issued  under  the  Townshi|>  Aid  Act 
of  March  23,  186S,  are  valid.  State  ex  rel. 
v.  Hannibal  &*  St.  /.  A'.  Co.,  4 1  Am.  6-  En/,'^. 
A'.  Cas.  581.  101  .\lo.  136.  13  i'.  //'.  A'ep.  505. 
—  Imh.i.owinu  State  v.  Holladay.  72  Mo. 
499;  Dallas  County  7'.  Merrill,  77  Mo.  573. 

Taxes  levied  to  pay  said  township  fund- 
ing bonds  arc  not  "county  taxes"  within 
the  meaning  of  the  charter  provisions  ex- 
empting the  Hannibal  &  St.  Joseph  rail- 
road from  the  payment  of  county  taxes. 
State  ex  rel.  v.  Hannibal  Sr*  St.  J.  A'.  Co.,  41 
Aw.  &*  luig.  A'.  Cas.  581,  101  Mo.  136,  13  S. 
W.  Rep.  505.  State  ex  rel.  v.  Hannibal  »S- 
.SV.  /.  R.  Co.,  113  Mo.  297.  21  S.  ir.  Rep.  14. 
—Following  State  ex  rel.  7/.  Hannibal  & 
St.  J.  R.  Co.,  101  Mo.  149. 

(5)  J'ayment  to  company. — A  county  court 
levied  a  tax  for  the  amount  of  its  subscrip- 
tion to  a  railroad  company,  and  appointed 
an  agent  to  receive  the  money  collected, 
and  to  pay  it  over  "  when  ordered  by  the 
court."  Held,  that  the  railroad  company 
had  no  specific  or  other  lien  on  money  col- 
lected and  in  the  hands  of  the  agent,  but 
not  ordered  to  be  paid  over.  The  money 
could  be  recalled  from  the  agent  at  any 
time  before  paynient  to  the  company.  And 
for  refusal  to  restore  the  money  on  call  the 
agent  became  liable  to  his  principal.  Henry 
County  V.  Allen,  50  Mo.  231,  3  Am.  Ry.  Rep. 
146. 

(6)  Enjoining  collection.— \n  a  suit  to  en- 
join the  collector  from  collecting  taxes 
levied  to  pay  the  interest  on  bonds  (alleged 
to  be  illegal)  issued  to  a  railroad,  the  county 
court,  which  issued  the  bonds  and  levied 
the  taxes,  and  the  railroad,  should  be  made 
parties.  The  state  through  its  proper  offi- 
cers can  bring  such  suits.  State  ex  rel.  v. 
Sanderson,  54  Mo.  203.— Following  State 
ex  rel.  v.  Saline  County  Court,  51  Mo.  350. 

When  a  county  court,  acting  in  obedience 
to  a  mandate  from  a  federal  court,  and  in 
conformity  with  the  laws  of  the  state  au- 
thorizing the  levy  of  taxes  to  pay  county 
indebtedness,  has  levied  a  tax  for  the  pur- 
pose of  paying  a  judgment  of  the  federal 
court  against  the  county,  the  courts  of  the 
state  will  not  interfere  to  prevent  its  collec- 
tion on  the  ground  that  the  judgment  was 


MUNICIPAL  AND   LOCAL   AID,  4n)-41Sl. 


735 


■5' 


rendered  on  bonds  whicli  are  void.  The 
judgment  of  the  federal  court  will  be  held 
conclusive  of  their  validity.  S/nte  ex  ret.  v. 
Raiiuy,  7  Am.  <S-  En^.  A'.  Cas.  183,  74  Mo. 
329. 

(7)  Kecovtry  of  money  paid  under  ilii'^al 
lax.  —  A  c{)unty  subscription  to  railroad 
stock  made  before  the  company's  articles  of 
association  are  filed  with  the  secretary  of 
state  is  illegal  and  void ;  but  where  the 
county  court  orders  the  levy  of  a  tax  to  pay 
the  subscription,  and  the  tax  collector  is 
proceeding  to  collect  it,  the  remedy. of  a 
taxpayer  is  a  proceeding,'  to  arrest  the  exe- 
cution of  the  subscription,  and  not  an  action 
to  recover  back  the  taxes  after  they  are  col- 
lected. J\ubey  V.  S/iai'n,  54  A/o.  207.— Fol- 
lowed IN  Ranney  z/.  Bader,  67  Mo.  476. 

(8)  Liability  of  county  commissioners. — A 
county  commissioner  who  is  charged  with 
the  ministerial  duty  under  the  statutes  of 
levying  a  tax  to  pay  interest  on  municipal 
bonds  issued  in  aid  of  a  railroad  is  liable  to 
be  sued  in  another  state  by  a  holder  of  such 
bonds  who  has  been  injured  by  reason  of 
the  commissioner's  failing  to  levy  such  tax. 
St.  Joseph  /•'.  &*  M.  Ins.  Co.  v.  Leland,  90 
Mo.  \Ti,  2  ^'.  W.  Rep.  431.— Approving 
Dennick  v.  Central  R.  Co.,  103  U.  S.  18. 
Distinguishing  Vawter  v.  Missouri  Pac. 
R.  Co.,84  Mo.  679. 

The  fact  that  the  holder  of  such  bonds 
has  obtained  a  judgment  in  the  U.  S.  court 
for  the  amount  of  interest  due  thereon  and 
a  mandamus  to  compel  the  levy  of  a  tax  to 
pay  the  same,  but  which  the  commissioner 
has  failed  to  obey,  will  not  bur  an  action 
against  the  commissioner  in  another  state 
for  damages  for  the  failure  to  perform  his 
duties.  St.  Joseph  F.  &*  M.  Ins.  Co.  v.  Le- 
land, 90  Mo.  177,  2  .S'.  \V.  Rep.  431. 

41f>.  NebrttHka. — County  commission- 
ers, after  the  exhaustion  of  the  levy  in  the 
years  1876  and  1877,  allowed  claims  against 
the  county  to  the  amount  of  $22,000,  and 
issued  certificates  of  indebtedness  therefor, 
and  levied  a  sinking  fund  tax  of  five  mills 
on  the  dollar  valuation  for  their  payment. 
Held,  that  the  tax  was  illegal  and  void, 
under  Gen.  St.  ch.  13,  §  24,  providing  that 
"  it  shall  not  be  lawful  for  any  warrants  to 
be  issued  for  any  amount  exceeding  '"'*■* 
the  amount  levied  •  *  *  for  the  current 
year."  Union  Pac.  R.  Co.  v.  Buffalo  County 
Com'rs,  9  Neb.  449,  4  A'.  IV.  Rep.  53.— Fol- 
lowed IN  Union  Pac.  R.  Co.  v.  York 
County.  10  Neb.  612;  Burlington  &  M.  R.  R. 


Co.  V.  Clay  County,  13  Neb.  -tftT,-  Burling- 
ton &•  M.  R.  R.  Co.  V.  Clay  County,  1 3  .Wb. 
367,  13  A'.  //'.  Rep.  628.— DisriNGUisHED 
IN  State  ex  rel.  7'.  Lincoln  County  Com'rs, 
18  Neb.  283. 

In  an  action  to  enjoin  certain  taxes  levied 
to  pay  interest  on  bonds  issued  to  a  railroad 
company  and  to  raise  a  sinking  fund  under 
the  act  of  1875,  an  injunction  was  denied 
as  to  the  interest,  but  granted  until  the  fur- 
ther order  of  the  court  as  to  the  sinking 
fund,  as  the  court  desired  to  hear  further 
argument  on  the  question  of  a  limitation  of 
the  taxing  power  under  the  state  constitu- 
tion. Burlington  &*  M.  R.  R.  Co.  v.  Saun- 
ders County,  16  Neb.  123,  19  A'.  W.  Rep. 
698. 

Where  bonds  are  issued  by  a  county  in 
favor  of  works  of  internal  improvement, 
they  become  a  charge  against  the  county, 
the  principal  and  interest  to  be  paid  by  a 
levy  upon  the  property  therein  whether 
such  property  was  in  the  county  when 
the  bonds  were  voted  or  was  afterwards 
brought  in.  And  where  additional  terri- 
tory has  been  added  to  a  county  after  the 
voting  of  such  bonds,  the  taxable  prop- 
erty in  such  additional  territory  is  liable, 
like  other  property  in  the  county,  to  taxa 
tion  for  the  payment  of  said  obligations. 
Chicago,  St.  P.,  M.  &•  O.  R.  Co.  v.  Cuming 
County,  31  Neb.  374,  47  A^.  IV.  Rep.  1121. 

420.  NevJMla.— Under  the  act  author- 
izing the  issuance  of  the  bonds  of  Ormsby 
county  in  aid  of  the  Virginia  &  Truckee 
railroad  company  (St.  1869,  43),  the  county 
commissioners  of  that  county  before  the  is- 
suance of  the  bonds  levied  a  tax  for  the 
purpose  of  meeting  interest.  Held,  that  the 
levy  was  not  premature,  any  more  than  a 
levy  would  be  for  any  other  anticipated  lia- 
bility.    Gibson  V.  Mason,  5  Nev.  283. 

421.  New  York.  — (I)  Validity  and 
operation  of  the  statutes,  generally.  —  The 
provisions  of  N.  Y.  Act  of  1869,  ch.  907, 
providing  generally  for  bonding  towns  in 
aid  of  railroads,  and  providing  specially  in 
section  4  for  the  application  of  taxes  as- 
sessed in  any  town,  city,  or  village  toward 
the  redemption  of  the  bonds  issued,  are 
applicable  to  any  municipality  having  out- 
standing bonds,  and  are  not  limitrd  to  rail- 
roads constructed  under  the  statute.  Clark 
V.  Sheldon.  106  N.  Y.  104,  12  N.  E.  Rep. 
341,  8  A'.  Y.  S.  R.  537.  7  Cent.  Rep.  923. 

The  provisions  of  section  4  are  nofin  con- 
flict with  any  provision  of  the  st^tc  constU 


!? 


i    M 


-Si- 


^w 


786 


MUNICIPAL  AND   LOCAL  AID,  421. 


«; 


i; 


tution.  C/arl'  v.  S/tMofi,  io6  .\'.  }'.  104,  13 
A'.  £.  A'l-p.  341.  8  .v.  )^  S.  A.  537.  7  CW//. 
A'l-p.  y23.    /«  r^  Tax-Payers  0/  Kingston,  40 

//<«</.     /v.    (iV.     K.)    444. — DlSTINUUISHINU 

Wliitinjj  V.  Slieboygan  &  F.  du  L.  R.  Co., 
2j  Wis.  .'67 ;  Sweet  v.  Hulbert,  51  Harb. 
(N.  Y.)  316. 

N.  Y.  Act  of  1869,  ch.  907,  as  amended 
in  1870  and  1871.  specially  providing  that 
all  railroad  ;a"es  collected  in  the  munici- 
pality p!;.iil  be  paid  to  the  county  treasurer 
to  be  applied  in  payment  of  bonds  issued, 
is  not  repealed  by  the  act  of  1880,  ch.  286, 
as  amended  in  1881,  chs.  13,  197,  authoriz- 
ing towns  to  issue  bonds  to  take  up  out- 
standing obligations  which  might  be  in  dis- 
|)utc,  and  providing  for  a  tax  necessary  to 
pay  the  same.  Bcjth  statutes  are  in  force, 
the  former  merely  requiring  an  application 
of  the  railroad  tax  to  the  dischage  of  such 
bonds,  and  ^he  latter  requiring  an  applica- 
tion of  taxes  levied  only  to  such  bonds  as 
fall  due  during  the  ensuing  year.  Ackcrson 
V.  Niagara  County  Sup'rs,  18  A'.  }'.  Siipp. 
219;  affirmed  in  72  Hun  616,  55  A'.  K.  S. 
A'.  277,  25  A^.  y.  Supp.  196. 

Under  the  provision  of  the  Railroad  Act, 
as  amended  in  1871  (section  i,ch.  283,  Laws 
of  1871),  which  provides  that  taxes  "col- 
lected for  the  next  thirty  years,"  on  the  as- 
sessed "aluation  of  any  railroad  in  any 
town,  village,  or  city  which  "  has  issued  or 
shall  issue  bond!,  to  aid  in  the  construction 
of  saii'i  railroad  '  shall  be  paid  over  to  the 
county  treasurer  to  be  applied  to  purchase 
said  bonds  for  cancellation  or  to  be  invested 
as  a  sinking  fund  for  the  redemption  and 
payment  of  the  be  nds,  a  municipality  which 
has  issued  such  bonds  is  not  entitled  to  any 
portion  of  taxes  paid  by  the  railroad  com- 
pany after  the  bonds  have  matured  and 
been  paid  in  full  by  the  municipr'ity,  al- 
though within  the  thirty  years,  l^eople  ex 
rel.  v.  Cayuga  County  Sup'rs,  136  A'.  K.  281, 
32  A^.  E.  Rep.  854,  49  A^.  V.  S.  h\  340;  re- 
v>-rsing  45  A'.  Y.  S.  A'.  89,  18  A^.  1'.  Supp. 
808. 

The  r.eaning  of  the  provision  is  that  the 
taxes  shall  be  paid  as  directed  during  the 
period  of  the  running  of  the  bonds  to  ma- 
turity, and  the  purpose  was  to  aid  munici- 
palities only  during  a  period  not  exceeding 
thirty  years  when  the  bonds  were  outstand- 
ing and  by  the  terms  of  the  act  not  pay  ible. 
The  same  purpose  is  to  be  attributed  ',.0  the 
act  when  applying  its  provisions  to  bonds 
issued  under  special  acts  and  payable  with- 


in thirty  years.  People  ex  rel.  v.  Cayugit 
County  Sup'rs,  136  A'.  K.  281,  32  N.  E.  Nep. 
854,  49  .v.  Y.  S.  A'.  340 ;  re^iersing  45  A'.  }'. 
S.  A'.  89,  18  A^.   Y.  Supp.  808. 

The  fact  that  a  municipality  neglected  to 
enforce  the  right  given  to  it  by  the  act  for 
more  than  six  years  after  the  l&si  taxes  wore 
collected  to  the  application  of  whicii  it  was 
entitled,  furnishes  n)  ground  for  the  ap|)li- 
calion  of  ihe  principle  of  siil)rng:ition  l'ii>- 
pic  ex  rel.  v.  Cayuga  County  Sup'rs.  '36  .\'. 
J'.  281,32  A'.  E.  A'ep.  854,49  X.  )'.  .V.  A'. 
340;  retvrsing  45  .V.  Y.  S.  A'.  89.  18  A'.  )'. 
Supp.  808. 

Under  t''.e  provisions  of  the  act  of  1874 
(ch.  296,  Laws  of  1874),  subjecting  the  jjrop- 
erty  of  the  N.  Y.  &0.  M.  R.  Co.  to  taxation, 
which  provide  that  county  taxes  collected 
upon  property  of  said  company  used  or 
held  by  it  in  any  of  the  towns  or  munici- 
palities which  have  issued  bonds  in  aid  of. 
the  construction  of  the  company's  road, 
shall  be  appropriated  to  and  paid  over  to 
them  respectively,  to  be  applied  in  payment 
of  said  bonds,  "a  village  which  has  issued 
such  bonds  is  entitled  to  the  county  taxes 
assessed  and  collected  upon  the  property  of 
the  companv  within  the  municipality,  al- 
though no  tax  for  ':ounty  purposes  is  levied 
upon  the  villafre  as  distinct  from  the  town 
of  which  it  is  a  part,  and  it  has  no  separate 
relation  to  the  county  treasurer  in  the  pay- 
ment of  county  taxes."  Oneida  v.  A/ad  son 
County  Sup'rs,  1 36  A'.  Y.  269,  32  A'.  E.  A'ep. 
852.  49  .v.  Y.  S.  A'.  344. 

The  purpose  of  the  act  is  to  give  any  mu- 
nicipality that  has  issued  such  bonds  the 
benefit  of  the  taxes  arising  upon  property  of 
the  company  within  it.  Oneida  v.  Madison 
County  Suprs,  1 36  A'.  Y.  269,  32  N.  E.  Rep. 
852,  49  A'.  Y.  S.  A'.  344. 

Where  county  taxes  collected  upon  prop- 
erty of  a  railroad  company  in  a  village  have 
been  paid  over  to  the  county  treasurer  and 
by  him  paid  out  for  general  county  purposes, 
an  action  is  properly  brought  by  the  vil- 
lage against  the  board  of  supervisors  of  the 
county  to  recover  the  sums  so  paid.  In 
such  action  the  county  is  not  entitled  to 
question  the  validity  of  the  village  bonds. 
Oneida  v.  Madison  County  Sup'rs,  1 36  A'.  Y. 
269,  32  A'.  E.  A'ep.  852,  49  A'.  Y.  S.  R.  344. 
See  also  IVoods  v.  Madison  County  Sup'rs, 
136  A'.  Y.  403,  y.  N.  E.  Rep.  loi  i,  49  A'.  K. 
.V.  R.  685. 

(2)  Powers  and  duties  of  the  collector. — 
Tiie  act  of  1866,  ch.  398,  relating  to  the  con- 


y 


^^ 


MUNICIPAL  AND   LOCAL  AID,  -521. 


737 


:ted  to 

act  (or 

L's  were 

it  Wiis 

f  appli- 

'3f'  -v. 
>■.  A". 
A'.  }'. 

)f  r874 


Ktruction  of  the  New  York  &  Oswego  Mid- 
hind  railroad,  §  4,  which  provides  for  tlie 
payment  of  any  taxes  collected  from  rail- 
roads to  railroad  coniniissioncrs  <>f  any 
town  which  has  issued  bonds  in  aid  of  the 
railroad,  is  an  aniendtnent  or  quulitication 
of  I  Rev.  St.  396,  ji  37,  which  prescribes  a 
form  for  tax  collector's  warrants,  and  the 
warrant  should  direct  the  collector  to  pay 
the  money  directly  to  the  railroad  commis- 
sioners instead  of  to  the  town  supervisor. 
People  ex  rel.  v.  linwn,  55  A'.  1'.  180. 

A  tax  collector  cannot  question  the  valid- 
ity of  the  proceedings  by  which  the  town 
issued  its  bonds  to  the  railroad,  nor  dispute 
the  right  of  the  railroad  commissioners  to 
such  taxes.  People  ex  rel.  v.  linwii,  55  i\'. 
Y.  180. 

(3)  Investment  of  tax  moneys — Sinking 
/««</.— Under  the  act  of  1869,  ch.  907,  §  4, 
as  amended  in  1871,  providing  that  all  rail- 
road taxes  shall  constitute  a  sinking  fund 
for  the  payment  of  any  bonds  which  a  town 
may  iiave  issued  in  aid  of  a  railroad,  the 
taxes  must  be  applied  to  the  sinking  fund 
although  the  name  of  the  company  has  been 
changed.  Van  Tassell  v,  Ihrrenbacher,  56 
Htm\77,  31  N.  V.  S.  A'.  312.  10  A'.  V.  Supp. 
145  ;  affirmed  in  123  .V.  )'.  661,  mem.,  26  A. 
E.  Hep.  750,  mem. 

And  the  provisions  of  the  above  statute 
relating  to  the  sinking  fund,  and  to  the  se- 
curity that  shall  be  given,  have  not  been 
superseded  by  the  amendment  of  1870,  ch. 
762.  Van  Tassell  V.  Derrenbacher,  56  llun 
4/7.  31  -V.  Y.  S.  A'.  312,  10  A'.  Y.Supp.  145  ; 
affirmed  in  123  N.  Y.  661,  mem.,  26  A'.  E. 
A'fp.  750,  mem. 

And  the  sinking  fund  provided  for  in  the 
above  statute  includes  the  payment  of  bonds 
issued  by  a  town  in  renewal  of  other  bonds 
formerly  issuefl.  Van  Tassell  v.  Derren- 
bacher, 56  Hun  477, 31  .V.  Y.  S.  R.  312,  10  A'. 

Y.  Supp.  145;  affirmed  in  123  A^.  Y.  661, 
num.,  26  A'.  E.  Rep.  750,  mem.  Hurnum  v. 
Sullivan  County  Sup'rs,  137  A'.  Y.  179,  33 
.V.  E.  Rep.  162,  50  A'.  )'.  .S".  R.  381 ;  affirm- 
ing 62  Hun  190,  41  N.  Y.  S.  R.  845,  16  N. 

Y.  Supp.  513.— Following  Kilbourne  v. 
Sullivan  County  Sup'rs,  137  N.  Y.  170. 

Where  a  taxpayer  makes  application  to 
compel  a  county  treasurer  to  execute  the 
provisions  of  the  statute  relating  to  paying 
over  the  railroad  .ax,  and  it  appears  that  .ne 
taxes  imposed  upon  railroads  in  the  town 
for  the  year,  after  deducting  school  and  road 
taxes,  are  much  more  than  the  sum  specified 
6  D.  R.  D.—  47 


ill  the  petition  as  the  amgunt  of  such  taxes 
paid  to  the  county  treasurer,  it  is  no  defense 
tliat  the  petitioner  has  not  piayed  for  a  suf- 
ficient amount.  The- treasurer  caniKJi  cou)- 
plain  of  this,  or  of  an  order  re(|uiring  him 
to  set  aside  a  less  sum  than  the  statute  re- 
quires. Clark  \.  Sheldon,  106  A".  J'.  104,  13 
.V.  E.  Rep.  341.  8  A'.  Y.  S.  R.  S37.  7  ten.'. 
Rep.  923. 

Nor  is  It  any  answer  on  the  part  of  the 
county  treasurer  in  such  proceeding,  that  if 
he  sets  aside  the  taxes  as  required  by  the 
statute  there  will  be  a  deficiency  in  other 
funds.  The  law  having  appropriated  such 
taxes  f(jr  a  speciilc  purpose,  it  is  liis  duty  so 
to  apply  them.  ClarA  v.  Sheldon,  106  N.  Y. 
104.  12  X.  E.  Rep.  341,  8  A^.  )'.  A".  R.  537,  7 
Cent.  Rep.  923. 

And  it'makcs  no  difference  as  to  the  duty 
of  the  county  treasurer  that  such  taxes  were 
not  expressly  collected  and  paic'  over  to  him 
for  the  purpose  of  liquidating  such  bonds. 
Clark  v.  Sheldon,  106  A'.  1'.  104,  12  A'.  E. 
Rep.  341,  8  .V.  }'.  S.  R.  537,  7  Cent.  Rep.  923. 

A  town,  by  bonding  itself  in  accordance 
with  the  statute  and  causing  a  railroad  to 
be  built,  creates  a  new  and  additional  prop- 
erty, which  becomes  the  subject  of  taxation ; 
the  remainder  of  the  county  is,  for  the  time 
being,  deprived  of  the  benefit  to  be  derived 
from  the  taxaiinn  thereof,  so  that  the  town 
may  reap  the  benefits  by  having  the  taxes 
app'if  I  i  -i  satisfaction  of  its  bonded  indebt- 
edncLf,  ;:iid  thus  the  sinking  fund  provided 
for  by  the  statutes  (ch.  907.  Laws  of  1869, 
as  amended)  is,  up  to  the  time  the  bonds 
become  due  and  payable,  a  fund  which  the 
town  has  an  absolute  right  to  have  applied 
in  payment  of  its  bonds.  Crowninshield  v. 
Cayuga  County  Sup'rs,  1 24  A'.  Y.  583,  27  A'. 
E.  Rep.  242,  37  A'.   )',  S.  R.  96. 

The  act  of  1874.  ch.  296,  repealed  a  former 
statute  which  exempted  the  New  York  & 
Oswego  Midland  railroad  from  taxation, 
and  provided  that  all  moneys  collected  from 
the  road  for  county  taxes  should  be  appro- 
priated tothe  towns  which  had  issued  bonds 
in  aid  of  the  road,  and  should  be  paid  over 
to  the  railroad  commissioners;  but  it  did 
not  repeal  the  provision  of  the  act  of  1869, 
ch.  907,  which  required  all  railroad  taxes 
collected  in  any  municipality  which  had 
granted  aid  to  the  road  to  be  paid  over  to 
the  county  treasurer,  and  constitute  a  sink- 
ing fund  for  ihe  payment  of  the  municipal 
bonds  issued.  Under  the  latter  act  a  town 
has  a  right  to  have  both  state  and  county 


k 


.t 


I 


I 


738 


MUNICIPAL   AND   LOCAL   AID,  431. 


r  1.' 


}■ 


1- 


taxes  from  railroad  pruperty  applied  to  such 
siiilcinK  fund.  Ktlbourne  v.  Sullwan  Coun- 
ty Sup'rs,  41  X.  }'.  .V.  A".  838,  62  //««  210.  16 
^V.  J'.  Supp.  507  ;  ii^rmed  in  137  i\'.  }'.  170, 
33  N.  E.  Kep.  159.  50  A'.  Y.  S.  li.  yjt. 

Where acoiiniy  treasurer  fails  to  pay  over 
sucii  moneys  for  the  benetit  of  the  sinking 
fund,  a  cause  of  action  arises  whenever  he 
has  inisap|)roprlated  the  funds,  and  the 
statute  of  limitations  begins  to  run  from 
iliat  lime;  but  there  cannot  be  said  to  be  a 
misappropriation  so  long  as  he  h  ^  in  his 
liands  moneys  raised  during  tlic  current 
year,  from  whicii  he  might  pay  the  required 
amount.  Kilbourne  v.  Sullivan  County 
Suprs.^x  N.  v.  S.  li.  838.62  Hun  210,  16 
A'.  )'.  Supp.  507  ;  affirmed  in  1 37  i\'.  Y.  1 70, 
33  A^.  I-:.  Rep.  159.  50  .\'.  }'.  .v.  A'.  376. 

And  where  the  action  is  to  compel  the 
proper  authorities  to  levy  and  collect  a  sum 
equal  to  that  whicli  lias  been  misappropri- 
ated by  the  treasurer,  the  action  is  an  equi- 
table one,  and  may  include  moneys  misappro- 
priated both  before  and  after  the  action  was 
commenced.  Kilbourne  v.  Sullivan  County 
Snp-rs,  41  N.  Y.S.  A'.  838,62  Nun  210,  16  M 
Y.  Supp.  507  ;  affirmed  in  137  N.  Y.  170,  33 
A'.  K.  Kep.  159,  50  i\.  Y.  S.  A*.  376. 

Where  the  supervisors  of  a  county  levy  a 
tax  tu  pay  the  interest  on  bonds  which  a 
city  has  issued  in  aid  of  the  construction  of 
a  railroad,  pursuant  to  the  act  of  1866,  ch. 
433,  the  money  must  be  paid  to  the  railroad 
commissioners.  People  ex  rel.  v.  Stupp,  18 
N.  Y.  S.  K.  500, 49  //««  544,  2  A'.   Y.  Supp. 

537- 

Under  the  act  of  i869,ch.  907,  as  amended 
in  1871,  ch.  283,  a  county  treasurer  receives 
such  taxes  in  trust,  and  cannot  plead  the 
statute  of  limitations  when  sued  therefor; 
but  where  the  county  has  applied  the  taxes 
to  general  purposes  and  is  sued  therefor,  it 
may  plead  the  six-year  statute  of  limita- 
tions, which  commences  to  run  from  the 
time  the  money  is  appropriated;  and  the 
case  does  not  coinc  within  the  provision 
of  the  statute  thai  tlie  limitation,  in  cases  of 
fraud,  shall  only  begin  to  run  from  the  time 
that  the  fraud  is  discovered.  Wood  v. 
Monroe  County  Sup'rs,  50  /lun  i,  l&  JV.  Y. 
S.  A'.  671,  2  .V.    Y.  Supp.  369. 

(4)  Purchase  of  bonds  with  tax  money. — 
Whore  a  county  appropriates  to  its  own  use 
taxes  which  have  been  collected  from  a  rail- 
road, instead  of  investing  them  in  a  sinking 
fund,  or  in  the  purchase  of  bonds  which 
have  been  issued  in  aid  of  the  road,  as  re- 


quired by  N.  Y.  Act  of  1869,  ch.  907,  as 
amended  in  1871,  the  town  may  pursu'.: 
either  a  common  law  or  an  equitable  rem- 
edy to  recover  the  same;  and  it  is  not  bound 
to  i)r()ceed  by  petition  before  the  county 
judge,  as  provided  by  the  latter  act.  Wood 
v.  Monroe  County  Sup'rs,  50  l/un  i,  18  A'.  }'. 
S.  li.  671,  2  N.  Y.  Supp.  369. 

And  wliere  a  county  converts  taxes  which 
should  have  been  used  in  the  purchase  of 
such  bonds,  or  invested  in  the  sinking  fund, 
an  action  against  it  may  be  brought  in  the 
name  of  the  tow  supervisor,  instead  of  in 
the  name  of  the  town.  Wood  v.  Monroe 
County  Sup'rs,  50  Hun  \,\%  N.Y.  S.  li.  67 J, 
2  N.  Y.  Supp.  369. 

And  his  complaint  need  not  explicitly 
aver  that  "  all  "  the  taxes  collected  had  been 
paid  over  to  the  treasurer.  Handw,  Colum- 
bia County  Sup'rs,  31  //////  (A'.   I'.)  531. 

(5)  liemedics  for  diversion  of  tax  money. 
—Under  the  Railroad  Act  of  1869,  ch.  907, 
Si  4,  as  amended  by  ch.  283  of  1871,  making 
it  the  duty  of  the  county  treasurer  to  pur« 
chase  with  such  taxes  the  bonds  of  the  town 
or  to  otherwise  invest  the  same  and  hold 
the  investment  as  a  sinking  fund  for  the  re- 
demption of  said  bonds,  a  county  treasurer 
in  his  relation  to  these  taxes  is  not  the  agent 
of  the  county  or  the  town,  but  holds  them  as 
>»  trust  fund,  lor  the  purpoac  expressed  in 
the  act,  and  any  action  that  diverts  it  from 
that  purpose  is  illegal.  Clark  v.  Sh.ldon, 
134  A'.  ]'.  333,  32  A'.  E.  Rep.  23,48  V.  )'. 
S.  a.  279 ;  affirming  10  A'.  Y.  Supp.  357. 

State  and  county  taxes  which  a  town  col- 
lects from  a  railroad,  and  which  should 
have  gone  into  a  sinking  fund  to  pay  the 
tov/n  bonds,  under  the  statute,  but  which 
are  diverted  to  other  purposes  by  the  coun- 
ty supervisors,  may  be  recovered  back  in  a 
suit  by  the  town  supervisors.  V\'ood  v. 
Monroe  County  Sup'rs,  9  A'.  Y.  Supp.  699, 
56  J  lun  643,  num.,  30  A'.  Y.  S.  R.  706;  af- 
firmed  in  1 24  A'.  Y.  676,  mem. ,  27  A'.  A". 
Rep.  855.  wfw.  — Foi.i.owiNc;  Strough  v. 
Jefferson  County  Sup'rs,  119  N.  Y.  212,  23 
N.  E.  Rep.  552. — Croitminshield  v.  Cayuga 
County  Sup'rs,  124  A'.  Y.  583.  27  A'.  E.  Rep. 
242,  37  N.  Y.  S.  R.  96.— DisTiN(ii;isniNG 
Spaulding  v.  Arnold,  34  N.  Y.  S.  \\.  980, 125 
N.  Y.  194.— FoM.(jWKD  IN  Wood  v.  Monroe 
County  Sup'rs,  124  N.  Y.  676. 

A  county  is  not  entitled  to  have  the 
stock  of  the  railroad  company  received  by 
the  town  in  exchange  for  its  bonds  sold  and 
the  proceeds  applied   in  payment  of  said 


MUNICIPAL  AND   LOCAL  AID,  421. 


r39 


bonds;  the  town  has  the  absolute  right  to 
have  the  sinking  fund  provided  fur  by  law 
applied  in  payment  uf  tlie  bonds  without  re- 
gard to  the  stock.  Lrowninshield  s .Cayu};a 
Count Y  Sup'rs,  124  A'.  V.  583,  27  A^.  E.  Kep. 
242,  37  ;V.   }'.  S.  K.  96. 

In  such  a  case  tlie  town  lias  an  equitable 
(  ause  of  action  against  the  board  of  super- 
visors of  the  county  to  compel  the  levying 
and  collection  of  a  tax  upon  the  taxable 
property  of  the  county  for  the  amount  so 
iiiis.ippropriuted,  to  be  paid  to  the  treasurer 
and  usfd  as  required  by  the  act.  Kilbourne 
v.  'i/livan  County  Sup'rs,  137  ^V.  Y.  170,33 
.\-.  A.  /u-p.  159. 

The  fact  that  the  municipality  has  pre- 
sented its  claim  to  the  board  and  demanded 
the  levying  and  collection  of  the  tax,  and 
!'iat  the  demand  has  been  refused,  does  not 
.online  the  remedy  of  the  claimant  to  a 
certiorari  to  review  the  action  of  the  board, 
or  a  mandamus  to  compel  a  compliance 
with  the  demand.  Kilbourne  v.  Sullivan 
County  Sup'rs,  137  A^  Y.  170,  33  A'.  E.  Kep. 
159. 

The  exception  of  school  taxes  from  the 
requirement  of  said  act  does  not  include 
that  part  of  the  state  taxes  collected  from 
the  railroad  company  which  is  to  be  paid  to 
the  state  treasurer  for  school  purposes. 
The  school  taxes  excepted  are  those  col- 
lected in  the  municipality  for  local  school 
purposes.  Kilbourne  v.  Sullivan  County 
Sup'rs,  I-,:  N.  Y.  170,  33  A^.  E.  Rep.  159. 

Such  a  cause  of  action  arises  when  the 
county  treasurer  appropriates  the  money  to 
the  payment  of  county  obligations,  and 
where  the  statute  of  limitations  is  pleaded 
as  ii  bar,  the  burden  is  upon  defendant  to 
show  that  the  money  was  so  misappropri- 
ated more  than  six  years  before  the  com- 
nv;ncement  of  the  action.  Where,  therefore, 
an  action  was  commenced  December  24, 
1888,  to  recover  for  a  tax  of  1881  which,  it 
appeared,  was  paid  to  the  county  treasurer 
early  in  1882.  but  there  was  no  evidence  to 
show  when  the  county  treasurer  misappro- 
priated w—held,  that  the  defense  of  the 
statute  was  not  sustained.  Kilbourne  v. 
Sullivan  County  Sup'rs,  137  A'.  Y.  170,  33 
A'.  E.  Rep.  159. 

Plaintiff's  recovery  included  the  tax  of 
1887 ;  this  was  paid  to  the  county  treasurer 
before,  but  was  not  misappropriated  until 
shortly  after,  the  commencement  of  the  ac- 
tion. Helt*,  that,  as  the  action  was  an  equi- 
table one,  said  tax  was  properly  included. 


Kilbourne  v.  Sullivan  County  Sup'rs,  1 37  A'. 
1 '.  1 70,  33  A'.  E.  Kep.  1 59. 

This  action  was  brought  to  recover  the 
state  taxes  collected  in  the  town  of  Liberty 
assessed  upon  the  property  uf  the  N.  Y. 
&  O.  M.  K.  Co.  and  its  successor  in  that 
town,  which,  prior  to  1874,  was  exempt  from 
taxation.  A  previous  ac;.iuii  was  brought, 
based  upon  the  acr  of  1874,  ch.  296,  which 
removed  the  exemption,  made  the  property 
of  the  company  liable  to  taxation,  and  re- 
quired the  county  taxes  collected  from  its 
property,  in  a  municipality  which  had 
issued  its  bonds  to  aid  in  the  construction 
of  its  road,  to  be  paid  over  to  the  railroad 
commissioners.  The  recovery  in  that 
action  was  limited  to  the  county  taxes  (92 
N.  Y.  570).  Held,  that  the  former  judg- 
ment was  not  a  bar  to  a  recovery  herein. 
Kilbourne  v.  Sullivan  County  Sup'rs,  1 37  A^. 
Y.  170,  33  A'.  E.  Kep.  159.— Reviewing 
Woods  V.  Madison  County  Sup'rs,  136  N. 

Y-  403- 

Where  a  town  sues  a  county  and  its  treas- 
urer for  failing  to  apply  railroad  taxes  to  the 
purchase  of  bonds,  or  place  them  in  a  sink- 
ing fund,  as  required  by  the  statute,  it  is  no 
defense  that  such  taxes  went  to  defray  town- 
ship expenses,  and  that  the  county  treasurer 
in  fact  never  received  them.  Ackerson  v. 
Niagara  County  Sup'rs,  25  A'.  Y.Supp.  196, 
7-  Hun  616,  55  A^.  Y.  S.  R.  277 ;  affirming 
:%N.  Y.  Supp.  219. 

(6)  Action  by  taxpayer  to  restrain  payment 
10  company. — Where  the  court  of  appeals 
declares  town  bonds  isiiued  in  aid  of  a  rail- 
road void,  a  taxpayer  of  the  town  may  re- 
strain the  collection  of  a  tax  which  the 
board  of  supervisors  has  directed  to  pay 
interest  on  the  bonds,  and  to  prevent  the 
collector  from  paying  over  any  moneys  in 
Ills  hands,  arising  from  such  tax,  to  the  rail- 
road commissioners.  Newton  v.  Keec/i,  9 
/fun  (N.  Y.)  355.— Distinguishing  Kil- 
bourne V.  St.  John,  59  N.  Y.  21.  Follow- 
ing Mooers  v.  Smedley,  6  Johns.  Ch.  (N. 
Y.)  30;  Ayres  v.  Lawrence,  63  Barb.  (N.  Y.) 

454. 

(7)  OtAer  remedies  of  taxpayer  or  town.— 
Where  a  statute  creates  a  right,  and  no 
mode  is  specified  for  its  enforcement,  it  is 
enforceable  by  any  remedy  then  known  to 
the  law.  So  under  the  act  01  .  869  providing 
that  railroad  taxes  collected  in  a  town  that 
has  given  aid  to  the  road  shall  be  invested 
in  a  sinking  fund,  or  be  used  in  the  purchase 
of  such  bonds,  the  town  has  a  right  to  such 


no 


MUNICIPAL  AND   LOCAL   AID,  421. 


H       <| 


i.  m 


'is 


taxes,  but,  as  the  statute  prescribes  no  mode 
f.)r  its  enforcement,  a  town  may  bring  an  vc- 
i<(n\  a(j;ainst  the  board  of  supervisors  of  the 
CDUiity  lor  tailini;  to  pay  over  sucli  taxcb. 
/  ■/>//<;«  V.  Cattantgus  County  Sufi'rs,  1 8  A'. 
Y.  S.  A\  435.  2  A^.  y.  Supp.  367. 

And  the  remedy  by  petition  provided  for 
in  tlie  amendatory  acts  of  1870,  cli.  789,  and 
of  1871,  ch.  283,  are  but  cumulative,  and  an 
ajjijrieved  town  has  its  election  to  proceed 
cither  by  action  or  by  petition.  Vinton  v. 
Cat  tar  at;  us  County  Sup'rs,  18  A'.  Y.  S.  K. 
435.  2  N.  Y.  Supp.  367. 

A  taxpayer  of  a  town  cannot  maintain  an 
action  against  railroad  commissioners  of  the 
town  to  restrain  them  from  paying  out 
moneys  in  their  hands,  paid  to  them  by  the 
collector  by  direction  of  his  warrant  to  pay 
interest  on  bonds  claimed  to  have  been  is- 
sued  on  behalf  of  the  town,  to  aid  in  the 
construction  of  a  railroad,  but  which  were 
alleged  in  the  complaint  to  have  been  ille- 
gally issued,  and  void.  Kilbourne  v.  St. 
John,  59  A^.  Y.  21.— Distinguished  in 
Newton  v.  Keech,  9  Hun  (N.  Y.)  3,^. 

In  an  action  by  a  taxpayer  to  restrain  the 
collection  of  a  tax  for  the  payment  of  cer- 
tain bonds  issued  by  some  of  the  defend- 
ants as  commissioners  of  a  town  to  pay  for 
railroad  stock,  a  preliminary  order  of  injunc- 
tion was  vacated  on  the  grounds  that  the 
plaintitT  himself  had  taken  part  in  the  issue 
of  the  bonds,  that  it  did  not  appear  that 
the  town  desired  to  contest  them,  and  that 
the  bondholders  had  no  opportunity  to  be 
heard.  Held,  that,  even  if  there  was  any 
supposable  case  where  this  court  would  re- 
view the  discretion  of  the  court  below  in 
refusing  or  vacating  a  temporary  order  of 
injunction,  this  was  not  one.  Young  v. 
Campbell,  75  A'.   Y.  525. 

In  proceedings  under  the  General  Kail- 
road  Act,  as  amended  in  1869  and  1871  (§4, 
ch.907.  Laws  of  1869;  ch.  283.  Laws  of  1871), 
by  a  taxpayer  of  a  municipality,  which  had 
issued  its  bonds  in  aid  of  the  construction  of 
a  railroad,  to  compel  the  county  treasurer 
to  comply  with  the  provisions  of  said  act 
requiring  him  to  invest  and  hold  as  a  sink- 
ing fund,  for  the  payment  of  said  bonds,  the 
taxes  collected  on  the  assessed  valuation 
of  the  railroad  in  the  municipality  and  paid 
over  to  said  county  treasurer,  it  appeared 
that  during  the  years  in  question  there  was 
an  account  on  the  said  treasurer's  books 
called  a  general  fund,  in  which  was  carried 


items  of  money  not  otherwise  especially  a|)- 
propriaicd.  and  that  there  was  in  said  fund 
at  all  times  since  the  taxes  in  question  'lad 
been  collected  a  greater  ><uni  than  the  total 
amount  of  said  taxes.  It  did  not  appear 
that  any  portion  of  the  moneys  so  collecletl 
and  paid  over  had  ever  been  paid  out. 
Held,  that  it  was  not  necessary  that  the  par- 
ticular moneys  paid  by  the  railroad  com- 
pany should  be  identified;  that  the  presump- 
tion was  they  still  remained  in  the  hands 
of  the  county  tre.isurer  and  were  part  of 
the  general  fund  ;  and  that  an  order  requir- 
ing their  investment,  as  prescribed  by  the 
statute,  was  proper.  Spaulding  v.  Arnold, 
125  A'.  Y.  194.  26  A'.  E.  Rep.  295 ;  affirming 
6  A'.  Y,  Supp.  336.— DisriNuuisHED  IN 
C  )wninshicldz/.  Cayuga  Countv  Sup'rs,  124 
N.  Y.  5?3. 

As  there  was  a  continuing  duty  in  the 
county  treasurer  to  make  the  application 
required,  the  statute  of  limitations  did  not 
apply.  Spaulditig  v.  Arnold,  125  yV.  Y.  194, 
26  A'.  E.  Kip.  295 ;  affirming  6  A'.  Y,  Supp. 
336.— Distinguishing  Strough  v.  Jefferson 
County  Sup'rs,  119  N.  Y.  2  2. 

It  is  nor  material  that  tue  county  treas- 
urer defendant  did  not  receive  all  the 
moneys  directly  from  the  railroad  company, 
but  that  a  portion  thereof  was  received  by 
his  predecessors  in  office,  the  same  having 
been  paid  over  to  and  being  now  held  by 
him  as  treasurer.  Spaulding  v.  Arnold,  125 
N.  Y.  194,  26  A'^.  E.  Kep.  295 ;  affirming  6 
A'.  Y.  Supp.  336. 

It  seems  that,  as  the  taxes  so  collected 
are  specifically  appropriated,  the  question  is 
not  affected  by  the  fact  that  the  objects  in 
each  year  for  which  the  taxes  of  the  year 
were  raised  did  not  include  the  creation  of 
a  sinking  fund.  Spaulding  v.  Arnold,  125 
A^.  Y.  194,  26  A'.  E.  Rep.  295 ;  affirming  6 
A^  Y.  Supp.  336. 

A  bondholder  sued  a  town  on  bonds 
which  it  had  issued  in  aid  of  a  railroad  in 
the  United  States  circuit  court,  and  recov- 
ered judgment,  which  was  affirmed  in  the 
supreme  court  of  the  United  States.  The 
county  board  of  supervisors  proceeded  to 
levy  a  tax  to  pay  the  judgment,  but  a  tax- 
payer applied  for  an  injunction.  Held, 
that  the  judgment  was  conclusive,  and  that 
the  taxpayer  could  not  contest  the  levy  of 
the  tax  ;  that  the  act  of  1881,  ch.  531,  was 
only  intended  to  prevent  fraudulent  recov- 
eries of  judgments  by  default  or  by  coUu- 


mm 


MUNICIPAL   AND   LOCAL  AID,  422-424. 


741 


>;  1 


sion,  and   had  no  application  to  the  case. 
Lfe  V.  Jefferson    County  Sup'rs,   62    Hew. 
Pr.  (A'.  Y.)  201. 
422.  Nurlli  C'nroliiia.— Wlieii.  by  the 

act  authurizin>r  a  county  to  subscribe  for 
stock  in  a  railroad,  it  i^i  provided  that  such 
county  may  "  levy  sucli  taxes  annually  as 
niiiy  be  sutTicient  tij  pay  the  amount  of  such 
loan  and  interest  thereon,"  the  board  of 
coniinissiuners  of  the  county  have  the 
pon-cr  to  lay  a  tax  of  $2  on  every  $100  of 
properly.  Street  v.  Craven  County  Co/n'rs, 
70  A'.  Car.  644. 

A  county,  prior  to  the  adoption  of  the 
present  constitution,  contracted  a  debt  for 
which  it  issued  Oonds,  and  since  that  con- 
stitution went  into  effect  the  board  of  coin- 
missiuners  i^^sued  other  bonds  in  exciuinge 
for  tlie  'irst,  uirder  an  act  of  the  general 
•issembly  which  provided  that  such  "bonds 
shall  be  deemed  and^  held  to  be  a  contin- 
uation of  the  liability  created  by  the  county  " 
fur  the  original  bonds.  /YeM.  that  all  tlie 
securities  and  remedies  which  attached  to 
the  bonds  first  issued  entered  into  and  be- 
came a  part  of  the  new  obligation,  and  that 
the  limitations  upon  the  rate  of  taxation 
contained  in  tlie  constitution  of  1868  did 
not  apply  to  them.  BUmton  v.  McDowell 
County  Com'rs,  101  ^V.  Car.  532,  8  S.  E. 
Rep.  162. 

A'l'A.  Olilo.— Taxation  can  o"!/  be  au- 
thorized for  public  purposes.  Where,  there- 
fore, a  statute  authorizes  a  city,  township, 
or  municipality  to  levy  taxes  not  above  a 
given  per  cent,  on  the  taxable  |)roperty  of 
the  locality  for  the  purpose  of  building  so 
much  of  a  railroad  as  can  be  built  for  that 
anmunt,  and  the  part  of  a  railroad  so  to  be 
biiiii  can  be  of  no  public  utility  unless  used 
to  accomplish  an  unconstitutional  purpose, 
such  tax  is  illegal  and  cannot  be  imposed. 
Taylor  v.  Noss  County  Com'rs,  23  Ohio  St. 

Taxes  levied  by  the  city  of  Cincinnati  for 
payment  of  interest  on  Southern  railroad 
bonds  issued  by  the  city  are  included  in  the 
•'HK^'-Ri'te  of  sixteen  mills  on  the  dollar  to 
which  cities  of  her  class  are  limited  by  sec- 
tion 648  of  the  municipal  code,  as  amended 
May  2,  1871  (vol.68,  p.  135),  and  a  levy  by  the 
t'iiv  in  any  one  vear  of  an  aggregate 
amount  greater  than  sixteen  mills  on  the 
dollar,  including  such  tax  for  interest,  and 
excluding  state,  county,  school,  and  school- 
hoiisc  taxes,  is  iinauthorized  by  law.  State 
V.  Itiimphriys.  25  Ohio  St.  320. 


The  act  of  April  10,  1880,  "to  authorize 
certain  townships  to  build  railroads  and  to 
lease  and  operate  the  same  "  (77  Ohio  L. 
16s),  being  unconstitutional,  a  taxpayer 
may  maintain  an  action  (Rev.  St.  §§  5848- 
5851)  to  restrain  the  collection  of  a  lax 
levied  for  the  payment  of  bonds  issued 
under  the  act,  and  the  fact  that  the  bonds 
were  issued  and  the  money  arising  from  the 
sale  thereof  was  ext)endcd  by  the  trustees, 
with  the  knowledge  of  the  plaintiff,  in  the 
construction  of  a  railroad  in  the  township, 
which  enhanced  the  value  of  the  property 
therein,  including  that  of  the  plaintiff,  and 
was  otherwise  useful  to  the  citizens  of  the 
township  generally,  and  that  the  plaintiff 
did  not  commence  an  action  to  restrain  the 
issue  or  negotiation  of  the  bonds  or  prose- 
cution of  the  work,  is  not  sufficient  to  estop 
the  plaintiff  from  maintaining  such  action 
to  restrain  the  enforcement  of  such  tax. 
Counterman  v.  Dublin  Tp. ,  38  Ohio  St.  5 1 5. 
424.  FeiiiiHjiviiiiiu.  —  A  municipal 
corporation,  under  a  power  to  make  such 
by-laws  as  shall  be  necessary  "  to  promote 
peace,  good  order,  benefit  and  advantage 
of  the  borough,"  and  to  assess  such  taxes 
as  jhall  be  necessary  for  carrying  the  same 
into  effect,  is  not  authorized  to  levy  a  tax 
for  the  paynien*.  of  part  of  the  expense  of 
a  railroad  company  in  bringing  its  road 
nearer  to  the  town  than  originally  located, 
McDermond  v.  Kennedy,  Bright.  N.  P.  (Pa.) 

332- 

Bonds  bearing  on  their  face  the  unquali- 
fied promise  of  the  county  to  pay  the  prin- 
cipal and  interest,  and  the  object  and  inten- 
tion being  clearly  to  make  them  negotiable 
in  the  market,  it  follows  that  "  the  author- 
ity to  create  the  debt  implies  an  obligation 
to  pay  it,  and  where  no  special  mode  of 
doing  so  is  provided,  it  is  also  implied  that 
it  is  to  be  done  in  t.'ie  ordinary  way,  by  the 
levy  and  colU'ction  of  taxes."  Com.  ex  rel.  v. 
Perkins,  43  Pa.  St.  .,00. 

The  act  of  1843  authorizing  subscriptions 
by  Allegheny  county,  among  others,  to  >lie 
stock  of  Pittsburgh  «&  Cornellsville  K.  Co., 
and  the  act  of  April  6,  1853,  giving  au- 
thority to  borrow  nn'/iey  to  pay  subscrip- 
tions, and  to  make  provisions  for  the  pay- 
ment of  the  princi  )al  .ind  interest  of  ihe 
money  so  borrowei',  as  in  other  cases  of 
loans  of  said  counties,  repeal  the  prosiso  of 
1834  limiting  assessments,  so  tar  as  it  con- 
flicts with  their  prov'sions,  and  empower 
the  commissioners  to  levy  taxes  suthcient 


"JO 
l-ifi 


MUNICIPAL  AND   LOCAL  AID,  425, 420. 


w. 


to  meet  the  obligation  incurred  under  said 
authority.  Com,  ex  rel.  v.  Allegheny  County 
Com'rs,  40  Pa.  St.  348.— Following  Amey 
V.  Mayor,  -^tc.  of  Allegheny,  24  How.  (U. 
S.)  364. 

425.  South  Curolliin.— A  tax  voted 
by  the  people  of  a  township  to  aid  in  the 
construction  of  a  railroad  is  nut  a  state, 
county,  or  municipal  tax,  and  therefore  a 
manufacturing  company  paying  such  tax  is 
not  entitled  to  have  it  refunded  under  the 
act  of  1873  directing  manufacturing  com- 
panies to  be  repaid  tho  amount  of  their 
state,  c'unty,  and  municipal  taxes.  Caro- 
lina, C.  G.  &*  C.  K.  Co.  V.  Tribble,  25  So, 
Car.  260. 

If  the  manufacturing  company  were  en- 
titled to  such  rep.  ymeiit,  it  could  not  be 
made  out  of  the  money  raised  to  pay  the 
railroad  subscription,  for  by  the  terms  of 
the  act  authorizing  this  subscription  the 
moneys  so  raised  were  to  be  paid  over  to 
the  railroad  company.  Carolina,  C.  C  f** 
C.  K,  Co.  v.  Tribble,  25  So,  Car.  260. 

A  county  treasurer,  by  public  advertise- 
ment, called  (or  the  payment  of  a  railroad 
subscription  tax,  and  threatened  to  enforce 
its  collection  by  levy  and  sale.  Under  this 
call  a  taxpayer  paid  under  protest  the 
amount  demanded  of  him,  and  then  brought 
action  for  its  recovery  under  the  provisions 
of  "an  act  to  facilitate  the  collection  of 
taxes"  (16  St.  785).  At  the  trial  the  county 
treasurer  testified  that  he  had  been  forbid- 
den by  the  comptroller-general  to  enter 
these  railroad  subscription  assessments 
upon  the  tax  duplicate,  and  tliai  lie  col- 
lected only  as  agent  for  the  railroad  com- 
pany. Held,  that  the  presiding  judge  erred 
in  uranting  a  nonsuit.  CaJe  v.  J'errin,  14 
So.  Car.  1. 

420.  TeiineHSOP.— The  act  of  1851-52, 
ch.  117,  §  5,  making  it  the  duty  of  the 
county  co.4rt,  when  stock  is  taken  in  a  rail- 
road company,  to  provide  for  its  payment 
by  levying  a  tax  upon  the  taxable  !iro|)erty, 
privileges,  and  persons  by  law  liable  to  tax- 
ation within  the  county,  whicii  tax  stiall  be 
levied  and  paid  ujjon  the  principle  of  levy- 
ing the  state  and  county  tax,  is  only  in- 
tendetl  to  restrict  the  county  court  in  levy- 
inf,  this  tax  to  the  principle  that  all  prop- 
e/ty  siioi)I<!  be  taxed  according  to  value; 
l)ut  it  does  not  limit  the  court  in  taxing 
privileges  to  the  amount  and  mode  of  tax- 
ation for  state  and  county  purposes,  /ivni 
v.  lulls/on,  3  Heail (  Tenn.)  477. 


The  constitution,  art.  2,  §  29,  provides 
that  the  legislature  shall  have  power  to 
authorize  counties  and  incorporated  towns 
to  impose  taxes  for  "county  and  corpora- 
tion purposes."  This  clause  authorizes  the 
imposition  of  taxes  by  an  incorporated 
town,  under  legislative  authority,  for  the 
execution  of  regulations  for  the  support  of 
good  order,  for  the  opening  and  preserva- 
tion of  highways,  streets,  and  alleys,  the 
erection  of  market  houses  and  hospitals, 
supplying  the  town  with  water,  etc.  It  also 
authorizes  the  imposition  of  taxes  for  the 
construction  of  canals  and  roads,  and  for 
the  improvement  of  rivers,  provided  such 
improvements  begin  at  or  near,  or  pass  by, 
such  incorporated  town  so  as  to  increase 
its  commercial  facilities.  Nfi'w/v.  Mayor, 
etc.,  of  Nashville,^  Humph.  (Tenn.)  252. — 
Api'Kovinu  Bridgeport  v.  Housatonic  R. 
Co.,  15  Conn.  475. 

The  legislacure  hi  saying  that  tax  receipts 
or  cer>'(icatrs  issued  to  the  taxpayer  under 
the  act  authorizing  county  subscriptions 
"may  be  traded,  assigned,  or  transferred, 
and  shall  be  receivable  in  payment  of  either 
freight  or  passage  on  any  road  on  which 
such  subscription  may  have  been  expended," 
intended  to  make  these  receipts  a  kind  of 
liK'id  currency,  and  this  object  was  accom- 
|»)ished  by  making  tlicm  transferable  or  as- 
signable "iilier  by  written  indorsement  or 
by  mct^  delivery.  Mobile  &^  O.  A".  Co.  v. 
Wisdom,  5  Ht-isk.  {Tenn.)  125,  I  Am.  liy. 
Ri'p.  107.— Exi'l.AiNKi)  IN  State  ex  rel.  7'. 
Nashville.  C.  &  St.  I..  R.  Co.,  7  Lea  (Tenn.) 

The  receipts,  though  dated  1854.  and  not 
demanded  to  be  received  until  after  comple- 
tion of  the  railroad,  and  the  date  of  the 
completion  not  appearing,  the  court  cannot 
assume  that  the  petitioner  has  delayed  un- 
reasonably long  the  assertion  of  his  rights. 
Mobile  C"  O.  A'.  Co.  v.  Wisdom,  5  /leisk. 
(Tenn.)  125.  i  Am.  h'y.  A'e/>.  107. 

Where  a  county  has  made  an  unauthor- 
ized subscription  of  stock  to  a  railroad  com- 
pany, any  taxpayer  of  the  county  as  such 
has  such  an  interest  in  the  contract  as  en- 
ables him  to  tile  a  hill  to  have  the  subscrip- 
tion declared  void,  and  to  restrain  ilic  issu- 
ance of  bonds  with  whu  li  to  pay  it,  and  the 
assessment  and  collection  of  taxes  to  pav 
the  jirincipal  and  interest  on  tin;  bf)nds,  and 
this  without  being  a  stockholder  in  the 
railroad  company.  Winston  \.  Tennessie C-^ 
/'.  A'.  Co,  I  liaxt.  {Tenn.)  60. 


MUNICIPAL   AND   LOCAL  AID,  427-420. 


r43 


A  county  or  curporatioii  as  such,  so  far  as 
it  uses  the  funds  ur  means  gathered  from 
the  taxpayers,  is  a  trustee  to  a  certain  extent, 
at  least  in  using  these  funds,  ur  cullecting 
them  fur  purposes  authurizcd  by  law ;  and, 
having  only  authurity  su  tu  use  them  or  col- 
lect them  fur  buch  use,  such  trustee  will  not 
be  allowed  tu  misapply  such  funds  to  an 
unauthorized  purpose,  nor  to  create  an  un- 
authorized liability  upon  the  corporation  or 
taxpayers.  Winston  v.  Tennessee  &-  P.  R. 
Co.,  I  /Am/.  (7V««.)6o. 

427.  TcxitM.— In  a  suit  by  injunction  to 
restrain  the  collection  of  a  tax  imposed  by 
tlie  police  court  of  Colorado  county,  No- 
vember 26,  1867,  on  the  people  and  property 
holders  uf  the  town  of  Columbus,  to  pay 
for  the  redemptiijn  of  the  bonds  of  the  town 
of  Columbus,  to  the  amount  of  $12,000,  is« 
sued  and  negotiated  by  the  town,  under  the 
authority  and  direction  of  the  police  court 
of  Colorado  county,  to  aid  in  the  con^ruc- 
tion  of  a  railroad  bridge  over  the  Colorado 
river  at  Columbus— //<■/</,  that  such  tax  could 
be  collected.  Htxrcourt  v.  Good,  39  Tex.  455. 
—Approving  People  ex  rel.  v.  Salem  Tp., 
30  Mich.  453. 

Such  tax  may  be  enforced  even  though 
the  election  was  held  only  in  ihc  town  of 
Columbus,  was  ordered  by  the  police  court, 
and  held  under  ordinance  10,  passed  by  the 
convention  of  1866  under  the  general  elec- 
tion laws  at  the  time.  Harcourt  v.  Good,  39 
Tex.  455. 

Ti'xas  Act  of  March  10,  1875,  was  in- 
tended to  relieve  the  International  railroad 
from  taxation  for  the  time  specified  except 
as  to  county  taxes  in  such  counties  as  had 
voted  bonds  in  aid  of  the  railroad,  and  a 
(°(>unty  which  had  donated  no  bonds  to  the 
road  could  not  tax  the  road  even  after  it  was 
consolidated  and  became  part  of  a  system 
under  another  name.  lnt<rni\tional  &*  G. 
X.  A'.  Co.  V.  .IndersoH  County.  59  Tex.  654. 
— Foi.i.owKi)  IN  Internati(mal  &  G.  N.  R. 
Co.  ?'.  Smith  County.  <>5  Tex.  21.  Quotf.d 
IN  Cainplx'll  7'.  \Vim.jins,  2  Tex.  Civ.  App.  i. 

428.  WiMCOliHiii.  -.\n  .ict  of  the  legis- 
lature which  is  an  unlimited  grant  of  power 
to  the  common  council  of  a  city  to  levy 
and  collect  special  taxes,  or  borrow  money 
on  the  credit  of  the  city,  for  any  purpose 
whatever  which  may  be  considered  essential 
to  pr.)mote  the  common  interest  of  the  city, 
is  in  confli<  I  with  Const,  art.  11,  §  3,  which 
provides  that  it  shall  be  the  duty  of  the 
legislature  to  restrict  the  power  of  cities  as 


to  "  taxation,  assessment,  borrowing  money, 
contracting  debts,  and  loaning  their  credit," 
and  a  subscription  made  bv  the  city  in  aid 
of  a  railroad  under  such  statute  is  unauthor- 
ized, and  the  collection  of  a  tax  to  pay  the 
same  should  be  restrained,  Foster  v.  Ke- 
nosha, 12  Wis.  616.  — IJISAPPROVKU  IN  Ke- 
nosha V,  Lamson,  9  Wall.  (U.  S.)  477. 

XIV.  BIVIEW. 

I.  Appeal. 

420.  When   an  appeal  will  lie.— 

Where  in  Indiana  a  tax  has  been  levied  on 
the  taxable  property  of  a  township  to  en- 
able it  to  aid  a  railroad  company  by  sub- 
scribing to  its  stock,  and  certain  of  the 
taxes  so  assessed  are  in  the  treasury  of  the 
towi.ship,  and  the  board  of  commissioners 
on  petition,  after  deliberation,  refuse  to 
subscribe  to  the  stock,  an  appeal  lies  from 
said  board  to  the  circuit  court.  White 
County  Com'rs  v.  Karp,  13  Am.  &*  Eng.  R. 
Cits.  642,  90  liid.  336. 

The  judgment  of  the  county  judge,  in 
proceedings  under  the  N.  Y.  statute  of  1869, 
to  bond  a  town  may  be  questioned  for  want 
of  jurisdiction.  Craig  v.  Andes,  15  Am.  &* 
Eng.  R.  Cas.  663,  93  /V,  Y.  405. 

The  only  effect  of  the  provision  of  said 
statute  giving  to  such  judgment  and  record 
"the  same  force  and  effect  as  other  judg- 
ments and  records  in  courts  of  record  "  is 
to  relieve  the  holders  of  bonds  issued  under 
it  from  proving  the  proceedings  prior  to  the 
judgment,  and  to  impose  upon  the  town  the 
burden  of  proving  want  of  jurisdiction. 
Craig  V.  Andes,  1 5  Am.  <^  Eng.  R.  Cas.  662. 
93  A'.  1'.  405.  — Foi.l.owKi)  IN  Calhoun  v. 
Millard.  I3i  N.  Y.  69.  24  N.  E.  Kep.  27,  30 
N.  Y.  S.  R.  759- 

Jurisdiction  can  only  be  conferred  under 
said  act  by  the  presentation  of  a  petition 
confor.ning  to  its  requirements;  it  confers 
no  jurisdiction  upon  the  county  judge  to 
pass  conclusively  upon  the  form  of  the  pe- 
tition, and  its  sufficiency  is  always  <»pcn  to 
inquiry.  Craig  v.  chides,  15  Ant.  &•  Eng. 
R.  Cas.  663,  93  A'.    )'.  405. 

The  action  of  a  county  judge  in  a  pro- 
ceeding under  the  New  York  statutes  to 
bond  a  town  in  which  he  determines  that 
the  persons  signing  the  petition  are  a  ma- 
jority of  the  taxpayers  of  the  town  is  con- 
clusive evidence  of  the  fact,  and  such  judg- 
ment can  only  be  reversed  or  modified  by 
an  i'ppeal  taken,  as  prescribed  by  the  stat- 


.4 


:u 


MUNICIPAL   AND    LOCAL   AID,  430-4»3. 


ute.  and  cannot  he  attacked  collaterally. 
Calhoun  v.  Pel/ii  &^  M.  A'.  Co.,  28  //««  (A'. 
Y.I  379.  64  //tm'  /'/■.  291. 

4:10.  Who  limy  ii|i|H<ial.— A  town  sub- 
scribeU  $4o.cxx)  to  the  capital  stock  of  a  rail- 
mad  and  issued  its  bonds  therefor,  vvhicli 
were  sold  by  the  raihoad.  Of  the  bonds 
$10,000  were  adjudged  illegal.  Tlieholderof 
tlie  bonds  then  liled  his  bill  a^^ainst  tlie  town 
and  the  company,  and  obtained  a  decree 
directing  a  surrender  of  the  illegal  bonds, 
and  a  transfer  to  him  of  $10,000  of  the  valid 
railroad  stock  held  by  the  town.  //M,  tliat 
the  railroad  alone  had  no  appealable  interest 
in  the  decree.  Illinois  (/'.  7".  A*.  Co.  v. 
Wade,  140  U.  S.  65,  11  Sn/i.  Ct.  /\',fi.  709.— 
DisTi.NCUlsniNd  /Ktna  Life  Ins.  Co.,  v. 
Middle|)ort,  124  U.  S.  534.  — Foi.i.owku  in 
Illinois  G.  T.  R.  Co.  v.  Wade.  140  U.  S.  70. 

431.  What  (|(i«HtioiiH  art;  ii|>  for 
review. — On  appeal  from  an  order  of  the 
county  commissioners  levying  a  tax  to 
meet  an  appropriation  in  aid  of  a  railroad, 
the  questions  to  be  tried  are  those  only 
which  have  been  put  in  issue  before  the 
board.  Ir-vin  v.  Ijnve,  89  Ind.  540.  Com- 
pare Gin'in  v.  Ihcatur  County  Coni'rs,  I3 
Am.  &>  Kn^.  R.  Cas.  685.  81  Ind.  480. 

AWl.  lieverNal,  and  itH  eft'ect.— 
Where  a  county  judge  made  an  order  for 
the  issue  of  certain  bonds,  assuming  to  act 
under  a  state  law,  and  on  appeal  by  the  tax- 
payers this  order  was  reversed,  such  judg- 
ment between  the  original  parties  to  the 
bonds  was  equivalent  to  a  refusal  to  make 
the  original  order,  and  the  bonds  issued 
under  it  are  invalid  as  between  such  parties. 
Steivart  v.  Lansint^,  7  Am.  &^  Eng.  R.  Cus. 
225.  104  U.  S.  505. 

A  taxpayer  of  a  town  brought  an  ac- 
ii<»ii  to  restrain  the  town  officers  from  issu- 
in-;  bonds  in  aid  of  a  railroad,  judgment 
was  entered  for  the  defendants  and  the 
plaintiff  api)ealed.  The  defendants  moved 
to  dismiss  the  appeal  on  the  ground  that, 
since  the  entry  of  the  judgment  appealed 
from,  the  bonds  had  been  issued,  and  that, 
therefore,  the  question  whether  the  defend- 
ants ought  t  )  issue  them  had  become  a 
mere  abstract  one.  11,'ld.  that  the  motif)n 
should  piivail  were  it  not  that  the  judg- 
ment is  also  for  costs  against  the  plaintiff. 
In  such  case  he  has  the  right  to  have  the 
judgment  examined  to  determine  whether 
it  was  correct,  and  if  not,  to  require  the  de- 
fendants to  pay  the  costs,  lliurington  v. 
Plainvtnv.  27  Afinn.  224,  6  A'.  If.  A'./.  777. 


— FoLLowKD  IN  Plainvicw  v.  Winona  A 
St.  P.  K.  Co.,  30  Am.  iSf  Eng.  R.  Cas.  259, 
36  Minn,  505,  32  N.  W.  Rep,  745. 

2.    Cfrtiorari. 

433.    When  certiorari    will   lie.- 

Proceedings  having  been  had  to  authorize 
the  issue  of  bonds  of  a  municipal  cor|H>- 
ration  to  aid  in  the  construction  of  a  rail- 
road, under  the  act  of  1869  requiring  the 
county  judge  to  determine  certain  facts  and 
render  judgment  thereon  (Laws of  1869,  ch. 
907,  p.  2303),  a  writ  of  certiorari  may  prop- 
erly issue  to  such  county  judge  lor  the  pur- 
pose of  a  review  of  his  proceedings  by  the 
supreme  court,  notwithstanding  his  deter- 
mination has  been  entered  of  record.  /Vc- 
ple  ex  rel.  v.  Smilh,  45  .\'.  )'.  772  ;  i^ffirm- 
ing  3  I.ans.  291.— Di.sriNUUlsHiNO  l'eo|)le 
V.  Com'rs  of  Highways,  30  N.  Y.  72. 

A  fcertiorari  may  be  brought  to  review 
the  proceedings  of  a  county  judge  either  by 
one  who  petitions  for  bonding  a  town  for 
railroad  purposes  or  by  the  town.  People 
e.x  rel.  v.  Wagner.  7  Lans.  (A'.  K.)  467,  i 
7'.  <S-  C.  221. 

A  taxpayer  cannot  maintain  an  equitable 
action  to  set  aside  proceedings  to  bond  his 
town  in  aid  of  a  railroad,  and  cannot  main- 
tain a  legal  action  to  protect  himself  against 
an  unlawful  issue  of  bonds  ;  but  he  may  re- 
view the  proceedings  by  certiorari  to  de- 
termine whether  the  required  number  of 
taxpayers  had  given  their  consent,  as  de- 
cided by  the  assessors.  People  ex  rel.  v. 
Morgan,  65  liarb.  (A'.  l'.)47j;  overruled  in 
18  Hun  116;  rei'etsfd  in  IS  N.  Y.  587 

A  certiorari  only  lies  to  bring  up  for  re- 
view a  final  detetniination  or  judgment  ; 
but  where  town  assessors  have  considerer 
and  decided  that  the  required  number  of 
taxpayers  have  consented  to  the  bonding  of 
the  town,  and  nothing  remains  but  the 
action  of  the  commissioners  in  preparing 
the  bonds  and  making  the  subscription,  the 
action  of  the  assessors  is  so  far  final  as  to 
authorize  a  certiorari.  People  v.  Morgan, 
65  Hark  (A'.   V.)  473- 

Proceedings  under  New  York  Act  of 
1869,  and  its  ainendmciits,  known  as  the 
"  bonding  acts,"  have  always  been  rcvieweii 
on  certiorari,  and  all  objections  affecting 
the  legality  of  the  proceedings  or  the  juris- 
diction of  the  county  judge  are  avail. ible 
on  such  review.  Besides,  express  authority 
for  thus    reviewing  tliLin  is   given    l)y   the 


MUNICIPAL  AND   LOCAL  AID,  434-437. 


745 


amendment  of  1871,011.925,  §  4.  Ajfrfs  v. 
l.,m>rime,  f>3  liarb.  (N.  Y.)  454  ;  rtversed  in 
59  .V.  )'.  lyj. 

434.  Tiiiio  to  apply  for  the  writ.— 
If  a  writ  of  ccrtiurari  is  allowable  at  all  to 
review  the  action  of  town  assessors  in  cer- 
tifyin^r  that  a  majority  of  the  taxpayers  of  a 
town  have  consented  to  bonding;  the  town 
in  aid  of  a  railway,  such  writ  may  be  ob- 
tained as  soon  as  the  assessors  make  an 
iitndavit  of  the  above  facts;  but  if  taxpayers 
remain  silent  and  sutler  the  subscription  to 
lie  made,  and  the  bonds  to  be  issued  and 
put  in  circulation,  and  the  proceeds  used  for 
the  construction  of  the  road  through  the. 
town,  they  cannot  apply  for  such  writ  more 
tiian  two  years  after  such  affidavit  is  made, 
and  if  it  is  granted  it  should  he  dismissed. 
Paopie  ix  rel.  v.  /////.  65  liarb.  (A'.  1'.)  435  : 
apptal dismissed  in  53  A'.   J'.  547. 

43A.  To  whom  thu  writ  Mhoiihl  he 
illr««t«<i.— The  office  of  a  town  commis- 
sioner under  the  acts  authorizing  the  bond- 
ing of  certain  towns  in  aid  of  the  Lake  On- 
tario Shore  R.  Co.  (ch.  811,  Laws  of  1868,  as 
amended  bycli.  241,  Litwsof  1869)  is  strictly 
ministerial,  and  the  title  to  office  of  commis- 
sioners appointed  under  said  act  cannot  be 
determined,  nor  can  their  proceedings  lie 
reviewed,  upon  a  certiorari  directed  to 
them ;  to  review  the  appointment  of  the 
commissioners  the  writ  should  be  directed 
to  the  county  judge  making  the  appoint- 
ment. A  return,  therefore,  by  such  com- 
missioners to  a  writ  directed  to  then)  brings 
up  nothing  for  review.  People  ex  rel.  v. 
H'aller,  68  N,  V.  403;  re7>ersing  2  Hun 
385,  4  T.^*  C.  638.  Compare  People  ex  rel. 
V.  Phillips,  67  A*,  r.  582. 

Tiie  jurisdiction  of  assessors  under  said 
statute  may  be  inquired  into  upon  return  to 
a  itTtiorari,  brought  before  their  action  has 
liuen  consummated,  and  put  beyond  their 
recall  or  the  power  of  the  court,  directed 
to  them,  and  which  is  not  vitiated  by  being 
united  with  other  writs  in  the  same  pro- 
ceeding directed  to  other  officers,  lint 
where  the  duties  of  the  assessors  have  fieen 
f.ully  performed,  and  the  commissioners, 
aciing  upon  their  determinalinn.  have  is- 
sued and  delivered  the  bonds  of  the  town 
ill  exciiange  for  stock  of  the  railroad  coi- 
poration.  a  writ  thereafter  i.^sued  directed 
to  the  assessor  is  fiiiilless  and  inefTectual. 
and  should  be  (]iiiislied.  People  ex  rel.  v. 
Walter,  68  A'.  1'.  403 ;  reversing  2  Hun  385, 
4  /'.  &•  ( ■.  638. 


43<l.  Thi;  n'tiirn.— To  justify  an  af- 
firmance of  proceedings  to  bond  a  town  the 
return  of  a  county  judge  to  a  writ  of  certio- 
rari must  sliow  affirmatively  that  he  had 
jurisdiction,  :ind  the  proof  of  the  jurisdic- 
tioniil  f.ict  >i:'  aid  he  returned  to  enable  the 
higlier  coiiit  ii>  deterniinu  whether  the  fact 
was  established.  It  should  at  least  appear 
that  those  whose  iiiimes  were  affixed  t(j  the 
petition  by  others  were  present  at  the  time 
of  signing,  and  authorized  it,  or  that  the  one 
who  affixed  the  signature  had  written  au- 
thority so  to  do,  which  authority  was  an- 
nexed to  the  petition  and  presented  to  the 
county  judge.  People  ex  rel.  v.  Knowles,  47 
A',  r.  415. 

So  where  a  county  judge  does  not  return 
the  evidence  before  him  to  prove  the  iden- 
tity of  the  petitioners  and  their  signatures, 
but  simply  returns  that  it  was  proven  that 
"  eiicl'  name  subscribed  to  the  petition  was 
written  by  or  upon  the  request  of  the  per- 
sons so  named,"  without  showing  how  many 
signed  personally,  the  return  is  insufficient. 
People  ex  rel.  v.  Knowles,  47  A'.  K.  41 5. 

437.  What  qiivHtloiiH  are  open,— 
Upon  the  return  to  a  writ  of  certiorari  to 
review  proceedings  before  a  county  judge 
to  bond  a  town  the  court  is  not  limited  to 
the  inquiry  whether  jurisdiction  of  the 
parties  and  subject-matter  was  acquired, 
but  should  examine  the  evidence,  and  de- 
termine whether  there  was  any  competent 
proof  of  the  facts  necessary  to  authorize  the 
adjudication  made,  and  whether,  in  making 
it,  any  rule  of  law  affecting  the  rights  of  the 
parties  had  been  violated.  People  ex  ret.  v. 
Smith,  45  A^.  Y.  772  ;  affirming  3  Lans.  291. 

It  is  not  competent  for  the  relators  to 
question  the  eligibility  of  the  persons 
whom  the  county  judge  has  appointed  as 
commissioners  to  make  thu  subscription 
and  issue  the  bonds,  where  no  such  question 
is  raised  by  the  complaint  on  which  the  cer- 
tiorari issued,  is  not  required  by  the  writ, 
and  the  return  fails  to  show  anything  on  the 
subject,  except  that  the  record  shows  that 
tliey  are  freeholders,  taxpayers,  and,  resi- 
dents of  the  tov'ns.  People  ex  rel.  v.  //«/- 
bt-rt.  59  litxrb.  (A*.  Y.)  446;  reversed  on 
another  point  in  46  A'.  J'.  1 10. 

Under  New  York  Act  of  1871,  ch.  925.  § 
4,  where  the  judgment  of  a  county  judge  in 
a  proceeding  to  bond  a  town  is  reversed  on 
certiorari,  discretion  is  given  the  court  to 
dismiss  the  proceeding  or  send  it  back  for 
correction  ;  but  where  a  new  assessment  roll 


^^f 


w 


r4G 


MUNICIPAL  AND   LOCAL  AID,  438, 430. 


li 


s ;) 


'M 


ii 


and  tax  list  have  been  made  in  the  mean- 
time, the  proceeding  will  be  dismissed.  Peo- 
pU-  ex  rel.  v.  Smith,  45  A'.  )'.  772 ;  affirming 
3  Lans.  291.  I'eople  ex  rel.  v.  liulbert,  46 
.\.  Y.  no;  reversing  y)  liarh.  \tl^.  People 
ex  rel.  v.  Knmvles,  47  A'.  J '.  415. 

4:iH.  Ktl'cft  of  tlic  writ  while  pi'iul- 
iiiK,— A  cuuniy  jiid(;e  decided  in  favor  of 
bonding  a  town  in  aid  of  a  railroad,  and  ap- 
pointed commissioners  to  make  tlie  sub- 
scription and  issue  the  bonds.  The  matter 
was  taken  by  certiorari  to  the  general  term 
of  the  supreme  court,  where  the  decision  of 
the  county  judge  was  aiiirmed,  but  on  ap- 
peal it  was  reversed  by  the  court  of  appeals. 
After  the  certiorari  was  taken,  but  before 
the  order  of  affirmance  in  the  supreme 
court,  the  commissioners  issued  the  bonds, 
and  the  same  were  received  and  used  by 
the  company.  Held,  that  the  commissioners 
might  act  on  the  judgment  of  the  county 
judge  until  it  was  reversed,  and  if  it  was  de- 
sired that  they  should  not  issue  the  bonds 
they  should  iiave  been  restrained.  Mitchell 
v.  Slrough,  35  Hun  (A'.  Y,)  83. 

3.  Mandamus.* 

430.   United   StuteH   courts.  —  (i) 

When  lies. — A  mandamus  is  the  proper  rem- 
edy 10  compel  a  levy  of  a  tax  to  pay  a  judg- 
ment against  a  county  on  bonds  issued  for 
stock  in  a  railroad,  where  the  law  specially 
provides  for  such  a  tax,  though  the  public 
jiroperty  of  the  county  might  be  sold  on 
execution.  Knox  County  Com'rs  v.  Aspin- 
tvatl,  24  How.  ( U.  S,)  376. 

And  this  notwithstanding  subsequent  leg- 
islation attempting  to  restrict  the  taxing 
power  of  the  city.  Wolff  v.  Ne7v  Orleans, 
12  Am.  &•  Eng,  A\  Cas.  625,  103  U.  S.  358. 
—  Distinguishing  Meriwether  t.  Garrett, 
102  U.  S.  472. 

And  if  the  cotmty  officers  make  no  return 
to  the  writ  or  refuse  to  obey  it  an  attach- 
ment may  issue.  United  States  ex  rel,  v. 
Lee  Count}'  Sup'rs,  1  Hiss.  ( U.  S.)  77. 

If  the  amount  already  in  the  county 
treasury  is  applicable  to  such  debts,  a  man- 
damus may  issue  to  compel  the  county  court 
to  draw  a  warrant  to  pay  the  judgment. 
United  States  ex  rel.  v.  Buchanan  County,  5 
Dill.  (U.S.)  285. 


•  Mandamus  to  enforce  payment  of  municipal 
aid  bonds,  see  note,  15  Am.  &  Eng.  R,  Cas.  629; 
12  /(/.  609. 


Where  a  circuit  court  of  the  United  States 
determines  that  certain  municipal  bonds  is- 
sued in  aid  of  a  railroad  are  valid  and  en- 
ters judgment  against  the  town  thereon,  the 
court  will  enforce  payment  by  mandamus, 
though  the  town  officers  had  been  enjoined 
by  a  state  court  before  the  judgment  was 
obtained.  }iawley  v.  Fairbanks,  108  U.  S. 
543,  2  Sup,  Ct.  h'ep.  846.  United  States 
ex  rel,  v.  Johnson  County  Sup'rs,  6  Wall. 
(U.  S.)  166.— FoLl.oWKi)  IN  United  States 
ex  rel.  v.  Keokuk  City  Council,  6  Wall.  (U. 
S.)  514. 

Where  the  debt  of  a  municipal  corpora- 
.tion  on  bonds  issued  to  a  railroad  has  been 
reduced  to  judgment,  and  the  judgment 
creditor  has  no  other  remedy  to  enforce  the 
payment,  the  remedy  in  the  supreme  court  of 
the  state  is  mandamus  to  compel  the  proper 
officers  of  the  municipality  to  levy  and  col- 
lect a  tax  for  that  purpose.  Having  no  other 
remedy,  the  relator  is  entitled  to  the  same 
remedy  in  the  circuit  court  where  he  recov- 
ered his  judgment.  United  States  ex  rel.  v. 
Keokuk  City  Council,  b  Wall,  (U.  S.)  514.— 
Not  foli.owf.d  in  Leavenworth  County 
Com'rs  V.  Miller,  7  Kan.  479. 

The  United  States  supreme  court  has  not 
the  power  to  direct  a  tax  to  be  levied  to  pay 
a  judgment  against  a  city  rendered  on  its 
bonds  issued  to  a  railroad.  The  proper  rem- 
edy is  by  mandamus,  which  may  be  'epeated 
as  often  as  necessary.  But  if  that  remedy 
fails,  this  court  has  no  power  to  appoint  a 
marshal  to  levy  and  collect  a  tax.  A'ees  v. 
Watertffivn,  19  Wall.  {U.  S.)  107.  —  Di.s- 
APPRoviNG  Welch  V.  St.  (Jenevieve,  i  Dill. 
(U.S.)  130.  Distinguishing  Lee  County 
V.  Rogers,  7  Wall.  175 ;  United  States  v. 
Muscatine  County  Trtas'.rer  2  .Ahh.  (U.  S.) 
53.— yuoTEi)  IN  McLean  County  7;  De- 
posit Rank,  81  Ky.  254. 

(2)  When  does  not  lie. — Where  a  statute 
authorizes  a  county  to  subscribe  for  railroad 
stock  and  to  issue  its  bonds  in  payment,  but 
limits  its  power  to  impose  a  tax  of  more 
than  one  twentieth  of  one  per  cent,  per  an- 
num to  pay  the  same,  in  the  absence  o( 
other  legislation  a  mandamus  will  not  issue 
to  com|)el  the  levy  of  i  tax  beyond  the 
amount  s|)ecified.     United  .States  v.  Macon 

County,  99  U.    S.    582.  — DiSTINGUISHKI)   IN 

Ralls  County  Court  i>.  United  States,  105  U. 
S-  733.  yuoTKP  IN  United  Statesex  rel.  v. 
Lincoln  County  Court,  5  Dill.  (U.  S.)  184. 

A  mandamus  will  not  be  awarded  to  com- 
pel a  town  to  levy  a  tax  to  pay  a  judgmeni 


MUNICIPAL  AND   LOCAL  AID,  430. 


747 


against  it  where  the  judgment  is  based  on 
bonds  issued  for  stock  in  u  railroad  which 
have  been  adjudged  void.  Hr<m<ns,villt 
L'om'rs  v.  Loague^  129  U,  S.  493,  9  Sufi.  Ct. 
Kep.  327. 

(3)  Necfisity  of  judgmtnt.  —  Xn  case  of 
non-payment  a  mandamus  will,  by  tlie  hiws 
of  the  state,  lie  against  the  county  court  to 
compt;!  the  assessment  and  levy  of  ihc  nec- 
essary taxes,  but  the  holder  who  resorts  to 
the  courts  of  the  United  States  must  there 
reduce  the  bonds  or  the  coupons  to  judg- 
ment before  he  is  entitled  to  that  remedy, 
Grten  County  v.  Daniel,  3  Am.  6-  Eng,  R, 
Cn.  105,  102  U.  S,  187. 

In  such  proceedings  federal  courts  can 
only  require  state  officers  to  enforce  state 
laws.  Uniled  Stales  ex  rel.  v.  Knox  County 
Court,  5  McCrary  (U.  S.)  76. 

(4)  Parties.— h  single  writ  of  mandamus 
will  lie  against  the  various  county  officers  to 
compel  them  to  levy  and  collect  a  tax  to  pay 
a  judgment  on  municipal  railroad  aid  bonds. 
Eacli  officer  may  be  joined  whose  duty  it  is 
in  any  way  to  assist  in  providing  the  means 
of  paying  the  judgment,  though  their  several 
duties  be  individual  and  distinct.  Labette 
County  Co'n'rs  s.  United  Slates  ex  rel.,  112 
U.  S.  217,  5  Sup.  Ct.  Hep.  108. 

(5)  Defenses. — Where  a  bondholder  has 
obtained  judgment  on  coupons  from  county 
bonds  issued  in  aid  of  a  railroad,  and  makes 
application  for  a  writ  of  mandamus  to  com- 
pel the  county  commissioners  to  levy  a  tax 
to  pay  the  judgment,  no  matter  can  lie  set 
up  in  defense  which  was  properly  used  as  a 
defense  to  the  recovery  of  the  judgment. 
Clews  V.  Lee  County,  2  Woods  {(/.  S.)  474. 

But  the  fact  that  the  county  commission- 
ers have  been  enjoined  by  a  state  court  from 
the  assessment  and  collection  of  such  tax 
is  no  defense  to  the  issuance  of  the  writ. 
Lilies  V.  Lee  County,  2  Woods  (U.  S.)  474. 

The  power  of  a  city  to  issue  bonds  in  pay- 
ment of  railroad  stock  implies  the  power 
to  levy  taxes  to  pay  the  same,  and  it  is  no 
defense  to  a  proceeding  to  compel  it  to  do 
so  after  the  bonds  have  passed  into  judg- 
ment that  the  stock  itself  was  by  law  for- 
ever pledged  to  payment  of  the  bonds,  and 
that  the  law  made  no  provision  for  a  tax 
to  pay  tiie  bonds.  The  pledge  of  the  stock 
is  only  as  collateral  security  for  the  bonds, 
and  docs  not  prevent  the  holder  from  pro- 
ceeding directly  against  the  city.  St.  Louis, 
L  M.  &*  S.  A'.  Co.  V.  Loftin,  98  C/.  S.  559. 

Where  the  {xiwcr  of  a  city  as  to  taxation 


is  limited,  and  it  has  neglected  to  levy  and 
collect  enough  taxes  to  pay  interest  on  cer- 
tain bonds  as  it  falls  due,  it  cancn  defend  an 
application  for  a  mandamus  to  compel  it  to 
levy  taxes  to  pay  interest  on  later  bonds, 
issued  in  aid  of  a  railroad,  by  showing  that 
the  payment  of  back  interest  on  the  older 
bonds  would  exhaust  its  tax  rate,  especially 
where  it  alleges  no  purpose  to  levy  such  ta.x. 
Sibley  V.  Mobile,, 3  Woods  iU.  S.)  535. 

A  county  that  was  authorized  to  levy  50 
cents  on  the  $100  for  county  taxes  levied 
30  cents,  whereupon  the  holders  of  the 
county's  railroad  bonds  brought  a  man- 
damus to  compel  a  further  levy.  J/eld,  that 
the  county  could  not  set  up  as  a  defense 
that  it  had  levied  30 cents  and  the  townships 
hnd  levied  20  cents,  where  the  county  and 
township  taxes  com|M)aed  funds  for  inde- 
pendent purposes.  Macon  County  v.  Uuide- 
koper,  134  U.  S.  332,  10  Sup.  Ct.  Rep.  491. 

(6)  Questions  involved. — Suit  was  brought 
on  county  bonds  which  recited  that  they 
were  issued  under  the  charter  of  the  railroad 
company,  which  limited  the  power  of  taxa- 
tion to  pay  them  to  one  twentieth  of  one 
per  cent,  per  annum  ;  but  the  complaint 
tiled  stated  that  they  were  issued  under  the 
general  statutes  of  the  state,  which  did  not 
impose  any  limit  upon  the  tax  rate.  The 
bonds  were  tiled  in  the  case  and  judgment 
was  taken  by  default.  Mandamus  proceed- 
ings were  then  instituted  to  enforce  the 
judgment ;  and  the  return  to  the  writ  set 
up  that  the  bonds  were  issued  under  the 
charter  of  the  company, and  the  limit  upon 
the  tax  rate  was  relied  upon.  Held,  that  the 
court  would  look  to  the  bonds  to  determine 
the  limit  of  taxation  imposed,  and,  in  the 
absence  of  evidence  that  such  recitals  were 
the  result  of  mistake  or  inadvertence,  they 
would  be  rleemed  true.  Uniled  Stales  v. 
Knox  County  Court,  5  McCrary  ( U.  S. )  76. 

(7)  Punishtnent  for  disobedience.— yihere 
a  board  of  county  commissioners  in  Ala- 
bama, when  ordered  by  njandamus  to  levy 
and  cause  to  be  collected  a  tax  to  pay  their 
railroad  bonds,  held  a  meeting,  levied  the 
tax,  ordered  the  tax  collector  to  collect  it, 
and  so  far  set  the  machinery  of  collection  in 
motion  that  it  depended  on  the  tax  collector 
alone  to  collect  it,  and,  on  his  failure  so  to 
do,  informed  the  governor  of  the  state  of 
the  fact,  the  duties  imposed  on  them  by  the 
state  statutes  were  fully  performed  ;  an  or- 
tier  committing  them  for  contempt  for  not 
causing  the  collection  of  the  tax  was  coram 


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MUNICIPAL  AND   LOCAL   AID,  440-444. 


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non  judice  and  void,  and  a  habeas  corpus 
was  granted  to  release  tliem  from  imprison- 
ment. Ex  parte  Rowland,  5  Am.  &^  Eng. 
R.  Cas.  208,  104  C/.  S.  604. 

440.  Alalmuiii.— When  the  validity  and 
amount  of  coupons  annexed  to  bonds  issued 
by  a  county  in   aid  of  a  railroad  company 
are  definitely  fixed  by   the  statute   under 
which  the  bonds  are  issued,  so  that  their 
presentment  to  the  commissioners'  court  fi.-- 
allowance  is  not  necessary,  if  that  cou-    .e 
fuses  to  levy  a  tax  for  their  payment,  r.-.n- 
damus  lies  to  compel  it.     Shinbonev.  Ran- 
dolph County,  56  Ala.  1S3.— Followed  kv 
Greene  County  v.  Daniel,  102  U.  S.  187.- 
Limestone  County  Com'rs  Court  v.  Railu. 
48  Ala.  433.  —  Followed   in    Chamber.. 
County  V.  Clews,  21  Wall.  (U.  S.)  317. 

441.  Califuruit),.— Where  the  court  is 
satisfied  from  the  record  that  the  conditions 
precedent  upon  which  a  company  was  en- 
titled to  have  bonds  issued  to  it  have 
all  been  performed  before  the  cor;,  nence- 
ment  of  the  action,  it  is  entitled  to  a  man- 
damus to  compel  county  authorities  to  issue 
and  deliver  the  bonds.  Santa  Cruz  R,  Co. 
v.  Santa  Cruz  County  Sup'rs.  62  Cal.  239. 

A  mandamus  will  not  be  granted  to  com- 
pel the  loan  commissioners  of  the  county  of 
Santa  Clara  to  satisfy,  in  gold  coin,  the 
bonds  issued  under  the  act  of  April  9,  1861, 
to  authorize  the  board  of  supervisors  of 
said  county  to  subscribe  to  the  capital  stock 
of  the  San  Francisco  &  San  Jose  railroad, 
where  the  only  fund  under  their  charge 
applicable  to  the  discharge  of  said  bonds 
consists  of  legal  tender  notes.  People  ex  rel. 
V.  Cook,  39  Cal  658. 

442.  Florida.— A  county  was  divided 
after  it  had  issued  its  bonds  in  payment  of 
a  subscription  to  railroad  stock,  and  a  new 
county  was  organized,  the  act  providing 
that  the  commissioners  of  the  old  county 
should  make  a  "  fair  division  "  of  the  stock 
between  the  counties,  and  that  the  new 
county  should  execute  bonds  to  the  old 
county  for  the  amount  of  the  stock  trans- 
ferred, which  was  done.  Held,  that  the  as- 
signment of  the  proper  number  of  shares  to 
the  new  county  transferred  the  ownership 
thereof,  and  that  it  was  immaterial  that  it 
did  not  have  a  transfer  made  on  the  books 
of  the  company.  It,  being  the  real  owner, 
might  be  compelled  by  mandamus  to  levy 
a  tax  to  pay  the  bonds  ;  and  it  was  no  de- 
fense that  the  old  county  had  compro- 
mised its  indebtedness   after   the  division. 


State  ex  rel.  v.  Suwannee  County  Com'rs,  21 
Fla.  I. 

Where  a  mandamus  issues  to  compel  a 
county  to  levy  a  tax  to  pay  railroad  aid 
bonds,  and  distinct  defenses  are  set  up,  one 
or  more  may  be  demurred  to  and  issue 
taken  on  the  others.  State  ex  rel,  v.  Suwan- 
nee County  Co/n'rs,  21  Ela.  i. 

Issues  uf  fact  in  such  cases  are  tried  by 
the  court,  and  not  by  a  jury.  State  ex  rel. 
V.  Suwannee  County  Com'rs,  21  Fla.  i. 

443.  Illiuois.— Under  the  laws  of  Illi- 
nois, where  the  facts  attending  an  issue  of 
b'-  vis  by  a  town   in  aid  of  a  railroad,  and 

ic  liability  of  the  town  for  their  payment, 
^■;ve  passed  into  judgment,  no  certificate 
worn  any  town  officer  is  required  to  compel 
a  county  clerk  to  levy  a  tax  to  pay  the  judg- 
ment. Hawley  v.  Fairbanks,  108  U.  S.  £43, 
2  Sup.  Ct.  Rep.  846. 

When  the  law  requires  the  trustees  of  a 
township  to  certify  the  result  of  an  election 
on  the  question  of  a  donation  to  a  railroad 
to  the  county  clerk,  a  petition  for  a  man- 
damus to  compel  the  county  clerk  to  extend 
a  tax  to  pay  such  donation  which  alleges 
that  a  majority  of  the  votes  cast  were  in 
favor  of  such  donation,  and  that  that  fact 
was  certified  by  the  town  clerk,  and  that  the 
town  clerk  was  the  proper  officer  so  to  cer- 
tify, is  bad  on  demurrer.  Springfield  &*  I. 
S.  E.  R.  Co.  v.  Wayne  County  Clerk,  74  ///. 
27. 

Where  the  petition  shows  that  two  propo- 
sitions were  submitted  to  the  people  of  a 
town  upon  the  question  of  a  donation  to  a 
railroad  company,  one  for  the  levying  of  a 
lax  and  the  other  for  issuing  bonds  to  pay 
such  donation  if  made,  and  that  a  majority 
of  the  votes  cast  were  in  favor  of  "said 
proposition,"  a  mandamus  to  compel  the 
county  clerk  to  extend  the  tax  mentioned 
in  the  first  proposition  will  not  be  awarded. 
Springfield  <S>»  /.  S.  E.  R.  Co.  v.  Wayne 
County  Clerk,  74  ///.  27. 

444.  Iiidiaiin.  —  A  company  cannot 
have  a  mandamus  to  compel  a  county  to 
pay  over  money  which  it  has  raised  by  taxa- 
tion for  the  purpose  of  taking  stock.  Under 
the  state  constitution  a  county  cannot  take 
stock  in  a  company  without  paying  the 
money  down,  and  the  company  has  no  con- 
trol over  the  matter  until  the  stock  is  taken. 
But  a  taxpayer  may  sue  out  a  mandamus 
for  such  purpose.  Crawford  County  Comers 
V.  Louisville  N.  A.  &-  St.  L.  A.  L.  R.  Co., 
39  Ind.    192,   10  Am.   Ry.    Rep.    416. — Re- 


lii 


MUNICIPAL  AND   LOCAL   AID,  445. 


749 


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VIEWED  IN  Sankey  v.  Terre  Haute  &  S.  W. 
R.  Co.,  42  Ind.402. — Sankey  v.  Terre  Haute 
&*  S.  W.  R.  Co.,  42  Ind.  402.— Reviewing 
Crawford  County  Com'rs  v.  Louisville,  N. 
A.  t%  St.  L.  A.  L.  R.  Co.,  39  Ind.  192. 
— Hamilton  County  Com'rs  v.  State  ex  re  I., 
36  Am.  &>  Eng.  R.  Cas.  210,  115  Ind.  64,  4 
a:  E.  Rep.  589,  17  A'.  E.  Rep.  855. 

A  township  which  had  voted  aid  to  a  rail- 
road, for  two  years  levied  a  tax  of  one  per 
cent,  upon  the  property  of  the  township,  as 
the  statute  provided,  but,  owing  to  a  shrink- 
age in  the  value  of  the  taxable  property,  the 
levies  did  not  produce  sufficient  revenue  to 
pay  the  sum  as  fast  as  it  fell  due.  Held ; 
(i)  that  a  mandamus  would  lie  to  compel 
the  county  commissioners  to  make  an  addi- 
tional levy ;  (2)  that  a  taxpayer  of  the  town- 
ship was  a  proper  relator  to  prosecute  the 
suit;  Decatur  County  Com'rs  v.  State  ex  rel„ 
12  Am.  <S>»  Eng.  R.  Cas.  604,  86  Ind.  8. 

It  is  not  the  duty  of  the  board  of  county 
commissioners  to  cause  a  tax  levied  in  aid 
of  a  railroad  company  to  be  placed  upon 
the  tax  duplicate,  and  mandamus  will  not 
lie.  State  ex  rel.  v.  Knox  County  Com'rs, 
loi  Ind.  398. 

In  an  alternative  writ  of  mandate  to  com- 
pel the  auditor  to  place  on  the  duplicate 
taxes  levied  in  aid  of  a  railroad,  it  is  suffi- 
cient  to  aver  as  a  fact  that  the  railroad  has 
been  permanently  located  in  the  township 
without  alleging  that  the  fact  has  been 
judicially  determined.  Caffyn  v.  State  ex 
rel.,  91  Ind.  324. 

A  proper  record  of  a  county  board,  ap- 
propriating money  to  aid  a  railroad  named 
therein,  and  showing  all  the  facts  necessary 
to  give  jurisdiction,  is  sufficient  evidence  of 
the  appropriation  and  of  the  corporate  ex- 
istence of  the  company  in  a  proceeding  by 
mandate  to  have  the  tax  put  upon  the  du- 
plicate. So  that  the  railroad  has  been  per- 
manently located  is  sufficiently  shown  by 
the  map  and  profile  filed  in  the  clerk's 
office,  with  proof  of  the  actual  construction 
of  the  road  accordingly.  Caffyn  v.  State 
ex  rel.,  91  Ind.  324. 

A  petition  to  obtain  the  levy  of  a  tax  in 
pursuance  of  an  appropriation  voted  in  aid 
of  a  railroad  may  be  first  presented  to  the 
board  of  commissioners,  ana  in  the  event  of 
an  adverse  decision  an  appeal  will  lie  ;  but 
if  the  board  should  refuse  to  act,  mandamus 
is  the  appropriate  remedy.  Knox  County 
Com'rs  V.  Montgomery,  106  Ind.  ^17,  6  N.  E. 
Rep.  915. 


The  delay  of  the  board  of  commissioners 
in  acting  upon  the  petition  at  the  time  re- 
quired by  law  will  not  prejudice  the  rights 
of  the  petitioner.  Knox  County  Com'rs  v. 
Montgomery,  106  Ind.  517,  6  N.  E.  Rep.  915. 

Tjie  decision  of  the  board  of  commission- 
ers is  conclusive  upon  all  questions  essential 
to  the  validity  of  the  judgment  pronounced 
by  it,  and  they  cannot  again  be  litigated 
except  in  case  of  a  direct  attack  upon  the 
judgment.  Knox  County  Com'rs  v.  Mont- 
gomery, 106  Ind.  517,  6  TV.  E.  Rep.  915. 

Upon  a  petition  for  a  mandate  to  compel 
county  commissioners  to  reinstate  on  the 
duplicate  taxes  assessed  in  favor  of  a  rail- 
road company,  a  return  showing  that  in  a 
prior  proceeding  the  beneficiaries  of  the  tax 
had  agreed  to  accept  a  certain  sum,  if  paid 
within  sixty  days,  in  full  satisfaction  of  all 
claims  on  account  of  such  tax,  and  that 
each  taxpayer  who  should  pay  his  propor- 
tion of  such  sum  should  be  entitled  to  a 
receipt  in  full,  and  further  showing  that 
such  per  cent,  had  been  collected  from  all 
who  paid  within  sixty  days,  and  from  all 
others  the  full  amount  assessed  against 
them,  which  had  been  paid  over  to  the  bene- 
ficiaries, excepting  only  the  expenses  of  the 
election,  is  good  even  though  the  withhold- 
ing of  the  election  expenses  was  wrongful. 
Huntington  County  Com'rs  v.  State  ex  rel., 
109  Ind.  596,  10  N.  E.  Rep.  625. 

445.  Iowa.  —  The  public  property  of 
counties  in  the  state  of  Iowa  is  exempt 
from  execution,  and  the  property  of  private' 
citizens  can  in  no  case  be  taken  to  pay  the 
debts  of  counties.  Therefore  the  proper 
remedy  for  o  °  holding  a  judgment  against 
the  county  c  i  bonds  issued  for  railroad 
stock,  whether  recovered  in  a  U.  S.  circuit 
court  or  in  a  state  court,  is  a  mandamus  to 
the  proper  county  officers  to  compel  them 
to  levy  a  tax  to  pay  the  same.  Weber  v. 
Lee  County,t  Wall.  {U.  S.)  210.— Not  fol- 
lowed IN  Leavenworth  County  Com'rs  v. 
Miller,  7  Kan.  479. —  United  States  \.  John- 
son County,  6  Wall,  ( U.  S.)  166. 

But  mandamus  will  not  issue  to  compel 
county  oflScers  to  levy  a  special  tax  to  pay 
a  judgment  for  ordinary  expenses  of  the 
county.  Carroll  County  Sup'rs  v.  United 
States,  18  Wall.  {U.  S.)  71.  — Distin- 
guished IN  United  States  v.  Clark  County 
96  U.  S.  211.  Quoted  in  State  ex  rel.  z/. 
Macon  County  Court,  68  Mo.  29. 

Mandamus  may  be  properly  invoked  to 
compel  the  treasurer  to  pay  over  a  tax  col- 


1 


w^ 


750 


MUNICIPAL  AND   LOCAL  AID,  446-449. 


lected  to  a  railroad  company  entitled  there- 
to under  the  law.  McGre^iior  &>  S,  C,  R. 
Co.  V.  Birdsall,  30  Iowa  255. 

But  a  company  cannot  enforce  this  duty 
by  mandamus  until  it  shows  itself  fully  en- 
titled to  the  tax  by  presentinjj  to  the  treas- 
urer an  order  of  the  president  or  managing 
director  accompanied  by  certified  estimates 
of  the  engineer  showing  that  an  amount 
equal  to  the  tax  has  been  expended  by  the 
company  within  the  county.  Until  this  is 
done  the  tax  does  not  become  delinquent. 
Hiirwood  &*  C.  F.  &*  M.  R.  Co.  v.  Case,  37 
Iowa  692. 

Under  the  act  of  1872  the  same  steps 
must  precede  the  right  to  the  compulsory 
collection  of  the  tax  that  under  the  act  of 
1868  preceded  the  right  to  have  the  tax 
paid  over.  Harwood  &•  C.  F.  &*  M,  R.  Co. 
V.  Case,  yj  Iowa  692, 

Mandamus  will  not  lie  to  compel  the 
board  of  supervisors  to  levy  a  tax  voted  to 
aid  a  railroad  or  to  compel  the  county 
treasurer  to  collect  such  tax,  until  his  re- 
fusal to  do  so,  made  after  the  tax  lists  have 
been  placed  in  his  hands.  Chicago,  D.  &^ 
M.R.  Co.\.  Olinstead,  <\.6  Iowa  316.— Dis- 
tinguished IN  Harwood  v.  Brownell,  48 
Iowa  657. 

Mandamus  to  compel  a  county  treasurer 
to  enter  upon  the  tax  books  a  tax  voted  in 
aid  of  a  railway  in  1868,  but  which  was  not 
certified  up  by  the  township  trustees  until 
1876,  will  not  be  barred  by  the  statute  for 
three  years  after  such  certificate  was  made. 
Whether  or  not  tlie  statute  of  limitations 
would  at  any  time  operate  to  bar  such  a  pro- 
ceeding, quate.  Harwood  v.  Brownell,  48 
Iowa  657. 

446.  Kansas. — Mandamus  is  the  usual 
and  appropriate  if  not  the  only  remedy  to 
compel  the  issue  by  a  county  of  its  bonds 
in  payment  of  a  subscription  to  capital 
stock  of  a  corporation.  Atchison,  T,  &*  6, 
F.  R.  Co.  V.  Jefferson  County  Com'rs,  12 
Kan.  127. 

A  mandamus  will  lie  against  county  offi- 
cers to  compel  them  to  levy  and  collect  a 
tax  to  satisfy  a  judgment  against  a  town- 
ship for  interest  on  bonds  issued  in  aid  of  a 
railroad,  the  county  ofiicers  being  charged 
with  the  duty  under  the  law  of  providing 
the  means  of  paying  the  bonds.  Labette 
County  Com'rs  v.  United  States  ex  rel.,  1 1 2 
6^.  5.  217,  S  Sup.  a.  Rep.  108. 

County  commissioners  are  not  relieved 
by  a  vacancy  in  the  office  of  township  trus- 


tee of  any  township  in  the  county,  from  the 
duty  imposed  upon  them  by  the  statute  of 
levying  and  collecting  taxes  in  such  town- 
ship. Cherokee  County  Com'rs  v.  Wilson,  1 5 
Am.  &•  Eng.  R.  Cas.  625,  109  U.  S.  621,  3 
Sup.  Ct.  Rep.  352. 

447.  Kentucky.  —  Mandamus  is  the 
appropriate  remedy  in  proceedings  against 
a  county  court  to  compel  the  issue  of  bonds 
in  pursuance  of  county  subscriptions.  Shelby 
County  Court  v.  Cumberland  &>  O.  R.  Co.,  S 
Bush  {Ay.)  209.— Distinguished  in  Ken- 
tucky Union  R.  Co.  v.  Bourbon  County,  85 
Ky.  98,  2  S.  W.  Rep.  687. 

After  the  subscriptions  are  made,  a  man- 
damus will  lie  against  a  county  judge  to  com- 
pel him  to  levy  an  annual  tax  to  pay  the  in- 
ter .'St  thereon,  and  to  see  that  the  same  is 
collected,  but  nothing  beyond  this.  Bass 
v,  Ta/t,  137  17.  S.  458,  II  Sup.  Ct.  Rep.  154. 

448.  Maine.  —  Whether  mandamus 
would  be  a  proper  remedy  for  a  railroad 
company  to  compel  the  issuing  of  bonds  of 
a  town  in  case  the  condition  of  the  vote 
had  been  complied  with  by  the  railroad 
company,  quare.  Portland  &'  0.  C.  R.  Co. 
V.  Hartford,  58  Me.  23. 

440.  Mi».souri.— A  mandamus  will  is- 
sue to  a  municipal  corporation  requiring  it 
to  levy  taxes  for  the  purpose  of  paying  in- 
terest upon  bonds  issued  by  it  in  payment 
of  its  subscription  to  the  stock  of  a  railroad 
company.  Flagg  v.  Mayor,  etc.,  of  Pal- 
myra, 33  Mo.  440. 

Bondholders  who  have  recovered  judg- 
ments on  bonds  issued  by  counties  in  Mis- 
souri in  aid  of  railroads  are  entitled  to  a 
mandamus  to  compel  the  county  courts  to 
levy  a  special  tax  where  it  is  necessary  to 
pay  such  judgments.  United  States  ex  rel. 
v.  Lincoln  County,  5  Dill.  (U.  S.)  184.— 
Quoting  United  States  v.  Macon  County, 
99  U.  S.  $82.— Jordan  v.  Cass  County,  3  IJill. 
(U.  S.)  185.  Cass  County  v.  Johnston,  95 
U.  S.  360. 

And  where  such  bonds  are  issued  when 
the  power  of  the  county  courts  was  abso- 
lute and  unconditional,  and  the  duty  simply 
ministerial  and  capable  of  direct  enforce- 
ment by  a  writ  of  mandamus,  a  subsequent 
statute,  like  the  Mo.  Act  of  March  8,  1879, 
known  as  the  "  Cottey  Act,"  which  takes 
away  from  the  county  court  such  power, 
and  only  authorizes  it  to  act  upon  the  order 
of  the  circuit  court,  is  in  conflict  with  the 
provision  of  the  United  States  constitution 
which  prohibits  laws  impairing  the  obliga- 


MUNICIPAL  AND   LOCAL  AID,  450, 451. 


751 


621,  3 

s   tlie 

igainst 

bonds 

Shelby 

Co..  S 

Ken- 

nty,  85 


lion  of  contracts.  United  States  ex  rel.  v. 
Lincoln  County,  5  Dill.  ( U.  S. )  1 24. 

But  as  federal  courts  do  not  have  original 
jurisdiction  in  mandamus,  a  bondholder 
cm  only  enforce  such  riglit  by  first  recover- 
ing a  judgment  on  his  bonds  and  then  en- 
forcing it  by  mandamus.  Jordan  v.  Cass 
County,  3  Dill.  (U.  S.)  185. 

A  circuit  court  may  disregard  a  prayer  in 
a  petition  for  a  mandamus  to  compel  a 
county  to  deliver  bonds  in  payment  of  a 
subscription  to  railroad  stock  and  conform 
its  final  order  to  the  facts  alleged  and  estab- 
lished. Osa£-e  Valley  <S-  S.  K.  R.  Co.  v. 
Morgan  County  Court,  n  Mo.  156. — Over- 
ruled IN  State  ex  rel.  v.  Kansas  City,  St. 
J.  &  C.  B.  R.  Co.,  77  Mo.  143. 

County  bonds  were  authorized  in  1871  to 
issue  for  stock  in  a  Missouri  railroad.  The 
bonds  were  prepared  with  interest  coupons 
for  1872  and  1873,  but  in  fact  were  not  exe- 
cuted and  delivered  until  Jan.  i,  1874.  Held, 
that  tltey  only  became  the  debt  of  the 
county  from  the  time  of  delivery,  and  the 
holders  were  not  entitled  to  a  mandamus  to 
compel  a  levy  of  a  tax  to  pay  ini  .-est  for 
1872  and  1873.  United  States  v.  Clark 
County,  95  U.  S.  769. 

In  mandamus  to  compel  the  county  court 
of  Macon  county  to  levy  a  tax  to  meet  the 
indebtedness  of  the  county  on  railroad 
bonds  issued  for  the  Missouri  &  Mississippi 
R.  Co. — held,  that,  under  section  15  of  the 
charter  of  the  company  (Sess.  Acts  1863,  p. 
86),  said  county  court  had  no  power  "to  levy 
in  one  year  a  tax  of  more  than  one  twen- 
tieth of  one  per  cent,  upon  the  assessed 
value  of  the  taxable  property  in  the  county. 
County  courts  have  only  such  powers  as  are 
granted  by  statute ;  they  can  have  no  im- 
plied right  to  levy  taxes.  State  ex  rel.  v. 
Sliortridge,  56  Mo.  126. — DISTINGUISHED 
IN  United  States  v,  Clark  County,  96  U.  S. 
211.— Quoted  in  United  States  ex  rel.  v. 
Johnson  County,  5  Dill.  (U.  S.)  207. 

450.  New  York.— Any  taxpayer  of  a 
town  may  apply  to  the  county  judge  for  an 
order  compelling  the  county  treasurer  to 
execute  the  law  in  case  of  his  refusal  so  to 
do,  and  this  order  it  is  the  duty  of  the 
county  judge  to  grant.  Clark  v.  Sheldon, 
134  N.  V.  333,  32  A^.  E.  Rep.  23.  48  N.  V. 
S.  R.  279;  affirming  10  N.   Y.  Supp.  357. 

It  is  no  defense  t »  the  proceeding  that 
the  county  treasurer  has  paid  over  the  fund 
to  an  officer  of  the  town,  or  that  the  town 
has  had  the  benefit  of  it  for  other  town 


purposes.  Clark  v.  Sheldon,  134  A^.  Y.  333, 
32  A^.  E.  Rep.  23,  48  A^.  Y.  S.  R.  279 ;  af. 
firming  10  A^.  Y.  Supp.  357.  People  ex  rel. 
v.  Brown,  55  A^.  Y.  180. 

The  first  order  of  a  county  judge  dismissed 
the  proceedings ;  before  it  was  made  the 
county  treasurer  had  settled  with  the  town 
collector,  receiving  from  him  receipts  of 
county  officers  for  the  fund  in  lieu  of  the 
money ;  said  order  was  subsequently  re- 
versed. It  was  claimed  by  the  treasurer  that 
this  order  operated  as  a  prohibition  against 
the  investment  of  the  fund  as  directed  by 
the  statute.  Held,  untenable.  Clark  v. 
Sheldon,  134  N.  Y.  333,  32  A^.  E.  Rep  23, 48 
A^.  Y.  S.  R.  279;  affirming  10  N.  Y.        bp. 

357- 

451.  Ohio.— Commissioners  of  Clmton 
county  issued  negotiable  bonds,  to  a  railroad, 
with  interest  warrants  attached,  under  Ohio 
Act  of  March  i,  1851.  Held,that  the  hold- 
ers of  the  bonds  were  entitled  to  interest 
from  the  county,  and  that  the  county  must 
look  to  the  company  to  be  reimbursed.  It 
was  the  duty  of  the  county  commissioners, 
in  case  the  company  did  not  provide  for 
payment  of  the  interest,  to  assess  a  tax  suf- 
ficient to  meet  it,  and,  in  default  thereof,  a 
holder  of  a  bond,  as  relator,  could  enforce 
the  du»/  of  the  county  commissioners  by 
mandamus.  State  ex  rel.  v.  Clinton  County 
Com'rs,  6  Ohio  St.  280. 

A  railroad  charter  provided  that  a  county 
through  which  the  railroad  passed  could, 
through  its  commissioners  and  on  authori- 
zation by  a  majority  of  its  qualified  voters, 
subscribe  any  sum  not  exceeding  $50,000  to 
the  capital  stock  of  the  company  and  borrow 
money  to  pay  the  same,  and  upon  failure  of 
such  county  to  subscribe,  any  township 
therein  through  which  the  road  passed 
might,  through  its  trustees,  duly  authorized 
by  a  majority  of  its  qualified  voters,  sub- 
scribe any  sum  not  exceeding  $50,000,  and 
provide  for  its  payment  in  the  same  manner 
that  the  county  commissioners  were  author- 
ized. An  act  was  subsequently  passed  au- 
thorizing any  county  through  which  the 
road  passed,  or  any  township  or  city  in  such 
county,  to  subscribe  to  the  stock  under  the 
provisions  of  the  act  incorporating  the  com- 
pany. A  county  subscribed  $12,500,  and 
subsequently  a  township  in  the  same  county 
authorized  a  subscription  and  issued  certifi- 
cates of  indebtedness  to  the  same  amount. 
On  proceedings  in  mandamus,  on  the  rela- 
tion of  a  bona  fide  assignee  and  holder  of  a 


r52 


MUNICIPAL   AND    LOCAL   AID,  452-455. 


^'    m 


portion  of  sucli  certificates,  to  compel  the 
township  to  levy  a  tax  for  th  j  payment  of 
the  principal  and  interest  due  thereon  — 
AM,  that  the  trustees  of  the  township  were 
not  authorized  to  suhscribe  after  a  subscrip- 
tion had  been  duly  made  by  tlie  county,  and 
that  tlie  acts  of  the  trustees  imposed  no 
liability  upon  the  township.  Sia/e  i:v  rcl. 
V.  Union  Tp.,  15  Ohio  St.  437. 

452.  Pellll^iylvnlliu.  —  Mandamus  is 
the  proper  and  appropriate  writ  to  compel 
a  municipal  corporation  to  make  provisions 
for  the  payment  of  interest  due  upon  bonds 
issued  by  it  in  payment  of  a  subscription  to 
tlie  stock  of  a  railroad  company,  by  the  as- 
sessment and  collection  of  the  necessary 
taxes.  Com.  ex  rel.  v.  Select  <S»  C.  Councils 
of  Pittsburgh,  34  Pa.  St.  496. 

453.  South  Carolina.  —  Mandamus 
will  not  lie  to  compel  a  county  treasurer  to 
pay  out  money  on  a  coupon  of  a  railroad  aid 
bond,  when  the  only  constitutional  law  that 
recognizes  such  bond  and  its  coupons  as  a 
debt  declares  that  no  tax  shall  be  levied  to 
pay  interest  on  such  debt  until  the  railroad 
has  been  completed,  and  that  all  taxes  here- 
tofore collected  for  such  purpose  shall  be  re- 
funded to  the  taxpayers,  and  where  no  tax 
has  been  or  could  have  been  collected  since 
the  railroad  was  completed.  State  ex  rel. 
V.  Neely,  30  So.  Car.  587,  9  S.  E.  Rep,  664. 

454.  Tennessee.— In  mandamus,  by  a 
bona  fide  holder  of  its  bonds,  against  a 
county  to  compel  it  to  levy  a  tax  to  pay  in- 
terest coupons,  whose  title  accrued  before 
maturity,  the  county  cannot  show  by  way  of 
defense,  if  the  legal  authority  to  issue  the 
bonds  is  clear,  a  want  of  compliance  on  its 
part  with  formalities  required  by  the  law 
authorizing  their  issuance,  or  show  fraud  in 
its  own  agents  in  issuing  them.  Where  the 
county  has  received  the  consideration  for 
the  bonds,  it  is  thereby  estopped  from  im- 
peaching their  validity,  except  by  showing 
a  want  of  authority  to  issue  them.  State 
ex  rel,  v.  Anderson  County,  8  Baxt.  ( Tenn.) 
249. 

455.  Wisconsin.— On  the  hearing  of 
an  order  to  show  cause  why  a  peremptory 
mandamus  should  not  issue  to  enforce  the 
levy  and  collection  of  a  tax  to  pay  interest 
upon  bonds  of  a  city,  the  validity  of  the 
bonds  was  questioned  by  the  city,  and  vari- 
ous questions,  both  of  law  and  of  material 
facts  affecting  their  validity,  were  raised. 
Held,  that  it  was  error  to  grant  the  writ  be- 
fore the  relator  had  established  his  right  in 


an  ordinary  action  at  law.  State  ex  rel.  v. 
Mayor,  etc.,  of  Manitowoc,  53  Wis.  423,  9 
N,  IV.  Rep.  607. 


MUNICIPAL  AID  BONDS. 

Negotiability  of,  see  Bonds,  18. 

MUNICIPAL  C0N3ENT. 
Effect  of,  on  right  of  abutting  owner  to  in- 
junction,  see    Streets    anu    Highways, 
223. 


MUNICIPAL  CORPORATIONS. 

Appointment  of  directors  by,  see  Directors, 

ETC,  4. 

Construction  of  statutes  limiting  indebted- 
ness of,  see  Municipal  and  Local  Aid,  57. 

Effect  of  division  of.  in  railway  aid  a  es,  see 
Municipal  and  Local  Aid,  lOr 

Estoppels  against,  see  Esioppi.l,  4. 

Joint  construction  of  railroad  by  state  and, 
see  Government  Railroads,  8. 

Judicial  notice  of  existence  and  location  of, 
see  Evidence,  103. 

Liability  of,  for  debts  of  company  aided,  see 
Municipal  and  Local  Aid,  203. 

License  tax  for  privilege  of  doing  business 
in,  see  iNrERSTATE  Commerce,  211. 

Mandamus  to  municipal  officers^  seat  Man- 
damus, 24. 

Occupation  of  streets  by  steam  roads  under 
grants  of,  see  Streets  and  Highways, 
«1-105. 

Power  of  legislature  to  compel  subscriptions 
by,  to  railway  stock,  see  Municipal  and 
Local  Aid,  15. 

to  grant  franchise  to  private  railroads, 

see  Private  Cars,  2. 

issue  bonds  in  aid  of  railways,  see 

Municipal  and  Local  Aid,  268-283. 

Ratification  of  irregular  railway  aid  bonds 
by,  see  Municipal  and  Local  Aid,  33U. 

Regulation  of  hacks  at  stations  by,  see 
Hacks  and  Hack  Lines,  4. 

speed  by,  see  Negligence,  28-31. 

steam  roads  in  streets  by,  see  Streets 

and  Highways,  290-35U. 

Right  of,  to  impose  conditions  on  subscrip- 
tion in  aid,  see  Municipal  and  Local  Aid, 
226. 

select  company  to  be  aided,  see  Mu- 
nicipal and  Local  Aid,  220. 


I.  IN  OEHEBAL 752 

II.  PABTICULAB  MUKICIPALITIEB 758 

I.  IK  OENBBAL. 

1.  What  acts  are  within  the  corpo- 
rate   powers,  generally.  —  There  can 


MUNICIPAL  CORPORATIONS,  2-4. 


753 


752 
758 


ordinarily  be  no  judicial  restraint  or  inter- 
ference with  municipal  corporations  in  the 
Av/(i  fide  exercise  of  powers  lejjislative  or 
discretionary  in  their  nature,  provided  pri- 
vate rights  are  not  violated.  But  wiien  the 
corporation  has  fuliilled  its  legislative  func- 
tions, and  exercised  its  legislative  discre- 
tion, and  is  about  to  carry  its  legislation 
into  effec*,  if  vested  rights  are  violated,  or 
irreparal.e  wrong  will  be  inflicted,  the 
courts  may  interverie.  Cape  May  &*  S.  L, 
R.  Co,  V,  Cape  May,  9  Am.  &^  En^.  R.  Cas. 
474.  35  ^-  J-  Eq.  419.— DISTINGUISHING 
Paterson  &  P.  H.  R.  Co.  t.  Mayor,  etc.,  of 
Patersion,  24  N.  J.  Eq.  15S.— QUOTED  IN 
Platte  &  D.  C.  &  M.  Co.  v.  Lee,  2  Colo. 
A  pp.  184. 

A  municipal  corporation  may  own  prop- 
erty, to  and  over  which  the  legislature  has, 
while  said  corporation  exists,  no  right  or 
control  in  opposition  to  or  independently  of 
the  will  or  consent  of  the  corporation.  New 
Orleans,  M.  <S^  C  K.  Co.  v.  New  Crleans, 
26  La.  Ann.  478. 

Where  a  city  has  subscribed  to  railroad 
stock  and  issued  its  bonds  in  payment,  and 
the  company  is  financially  unable  to  build 
the  road  to  the  city,  and  the  stock  is  there- 
fore greatly  depreciated  and  likely  to  be- 
come worthless,  an  agreement  between  the 
city  and  a  corporation  to  complete  the  road 
is  not  ultra  vires.  Mayor,  etc. .of  Athens  v. 
Camak,  75  (Jrt.  429.— Following  Semmes 
V.  Mayor,  etc.,  of  Columbus,  19  Ga.  471. 

2.  What  are  not. — The  indorsement 
of  the  bonds  of  a  street  railroad  by  the  city 
authorities  is  not  within  the  ordinary  admin- 
istrative powers  of  the  corporation,  and  re- 
quires a  special  legislative  grant.  Blake  v. 
Mayor,  etc.,  of  Macon,  53  Ga.  172. 

The  purchase  of  land  by  a  town  for  the 
use  of  a  railroad  for  right  of  way,  though 
ostensibly  for  a  public  street,  is  ultra  vires, 
and  the  purchase  price  cannot  be  collected 
by  one  having  knowledge  of  the  facts  and 
aiding  in  the  transaction.  Stralian  v.  Mai- 
vern,  tj  Iowa  454,  42  ^V.  W.  Rep.  369. 

A  city  of  the  first  class  cannot  extend  its 
limits  so  as  to  include  implatted  territory  of 
over  five  acres  against  the  protest  of  the 
owner  thereof  unless  tht  same  is  circum- 
scribed by  platted  territory  that  is  taken 
into  said  city.  Union  Pac.  R.  Co.  v.  Kansas 
City,  42  Kan.  497,  22  Pac.  Rep.  633. 

Tex.  Const,  art.  11,  §  3,  prohibits  a  city 
or  a  town  from  appropriating  its  revenues 
or  using  its  credit  to  obtain  a  right  of  way 
6  D.  R.  D.— 48 


or  depot  grounds  for  a  road  ;  and  the  sec- 
tion is  not  modified  in  this  particular  by  art. 
10,  §  9,  requiring  companies  projecting  a 
road  within  three  miles  of  a  county  seat  to 
run  through  it,  "  provided  such  town  or  its 
citizens  shall  grant  the  right  of  way  through 
its  limits  and  sufficient  ground  for  ordinary 
depot  purposes."  Cleburne  v.  Gulf,  CGr-  S. 
/•".  R.  Co.,  25  Am.  6-  Eng.  R.  Cas.  130,  66 
Tex.  457,  I  S.   W.  Rep.  342. 

An  agreement  of  a  city  to  refund  the 
money  paid  out  by  a  con)pany  for  a  right  of 
way  and  depot  grounds  contemplates  an 
appropriation  which  is  prohibited  by  the 
above  section  3.  Cleburne  v.  Gulf,  C.  &'  S. 
F.  R.  Co.,  25  Am.  &>  Eng.  R.  Cas.  130,66 
Tex.  457,  I  S.  \V.  Rep.  342. 

3.  Municipal  grants.— A  city  by-law 
granting  $1000  to  an  individual  in  consid- 
eration of  his  having  at  the  instance  of  the 
corporation  advanced  the  amount  in  aid  of 
a  railway — held,  not  within  the  powers  of 
the  corporation,  for  it  was  not  a  grant  to  a 
railway,  and  it  had  not  been  assented  to  by 
the  electors.     In  re  Bate,  23  U.  C.  C.  P.  32. 

4.  Aliinicipal  power  to  tax.*— Mu- 
nicipal corporations  are  mere  auxiliaries  of 
the  government,  established  for  the  more 
effective  administration  of  justice;  and  the 
power  of  taxation  confideu  to  them  is  a  del- 
egated trust.  Richmond  \.  Richmond  &>  D, 
R.  Co.,  21  Gratt.  (,Va.)  604. 

A  city  charter  is  not  a  contract  between 
the  state  and  the  city,  securing  to  the  city 
the  absolute  power  of  taxation  beyond  the 
control  or  modification  of  the  legislature. 
Richmofid  v.  Richmond  &^  D.  R.  Co.,  21 
Gratt.  ( Fa.)  604. 

Though  it  is  true  that  laws  conferring  the 
power  of  taxation  upon  municipal  corpora- 
tions are  to  be  construed  strictly,  it  is  also 
true  that  exemptions  from  taxation  are  to 
be  construed  strictly  ;  and  where  the  power 
has  once  been  conferred,  it  is  not  to  be 
crippled  or  destroyed  by  strained  interpre- 
tations of  subsequent  laws.  Orange  &~'  A. 
R.  Co.  V.  Alexandria  City  Council,  17  Gratt.. 
(P'a.)  176. 

Although  a  municipal  corporation  may 
be  divested  of  its  corporate  powers,  and 
they  are  in  no  sense  vested  rights  as  against 
the  state,  yet  it  may  not  lawfully  be  de- 
prived of    its  right  to  collect  taxes  which 

*  Legislative  restrictions  on  power  of  munici- 
pal taxation  as  affecting  existing  contracts,  see 
note,  16  Am.  &  Eng.  R.  Cas.  677. 


I 


r54 


MUNICIPAL  CORPORATIONS,  5,  6. 


1 


have  been  legall /  levied.  Dubuque  v.  Illi- 
nois C.  R.  Co.,  39  Iowa  56. 

An  action  at  law  can  be  maintained  by  a 
city  for  tlie  recovery  of  municipal  taxes 
upon  tiie  property  of  a  railroad,  notwith- 
standing the  legislature  has  provided  a 
special  remedy  therefor.  Burlington  v. 
Burlington  &-  M.  A\  A'.  Co.,  41  Io7va  134.— 
Following  Dubuque  v.  Illinois  C.  R.  Co., 
39  Iowa  56;  Davenport  ?'.  Chicago,  R.  I. 
&  P.  K.  Co.,  38  Iowa  633. 

5.  Contract  to  exempt  from  taxa- 
tion void.— A  city  cannot  exempt  partic- 
ular property  from  municipal  taxation,  when 
the  general  law  requires  it  to  levy  annually 
an  equal  and  uniform  tax  upon  all  real  and 
personal  property  within  the  city.  Ndw 
Orleans  V.  St.  Charles  St.  R.  Co.,  28  La.  Ann. 

497- 

In  Missouri  municipal  corporations  have 
no  I  ower  to  grant  a  commutation  of  taxes 
to  a  railroad  company  or  others,  and  a  con- 
tract to  do  so  is  void.  State  v.  Hannibal &• 
St.  J.  R.  Co.,7e,  Mo.  208. 

O.  License  taxes.* — (i)  In  general. — 
The  constitution  of  California  does  not  pro- 
hibit the  legislature  from  taxing  occupa- 
tions, nor  from  authorizing  municipal  cor- 
porations to  tax  them,  for  the  purpose  of 
revenue.  San  Josi  v.  San  Josi  &>•  .S".  C.  R. 
Co.,  53  Cal.  475. 

Where  the  charter  of  a  municipal  corpo- 
ration authorizes  it  "  to  license  and  regu- 
late" occupations,  in  determining  whether 
this  includes  the  power  to  tax  occupations 
for  revenue  purposes,  the  whole  chr.rter  and 
the  general  laws  of  the  state  relating  to  the 
snbject  must  be  considered.  San  Josi  v. 
San  Josi&*  S.  C.  R.  Co.,  53  Cal.  475.— Dis- 
tinguished IN  Santa  Cruz  v.  Santa  Cruz 
R.  Co.,  56  Cal,  143- 

A  municipal  authority  cannot,  under  its 
power  to  license,  regulate,  and  tax  an  occu- 
pation or  business,  tax  the  property  en- 
gaged in  such  business.  Denver  City  R.  Co, 
V.  Denver,  2  Colo.  App.  34,  30  Pac.  Rep.  1048. 

(2)  Railroad  companies.— kn  ordinance 
by  a  county  requiring  a  railroad  company  to 
take  out  a  license  to  continue  its  business 


*  See  also  Interstate  Commerce,  208- 
214. 

License  tax  on  foreign  corporations,  see  note, 
45  Am.  &  Eng.  R.  Cas.  8. 

When  a  municipal  license  tax  on  each  com- 
pany entering  corporate  limits  is  not  a  tax  on 
interstate  commerce,  see  37  Am.  &  Eng.  R. 
Cas.  378,  abstr. 


of  carrying  persons  or  freight  for  hire  in  the 
county  is  void,  when  the  charter  and  fran- 
chise of  the  company  are  derived  by  grant 
of  the  congress  of  the  United  States.  San 
Benito  County  v.  Sottthern  Pac.  R.  Co.,  37 
Am.  &*  Eng.  R.  Cas.  374,  77  Cal.  518,  igPac, 
Rep.  827.— Distinguishing  Thomson  v. 
Union  Pac.  R.  Co.,  9  Wall.  (U.  S.)  579; 
Union  Pac.  R.  Co.  v.  Peniston,  i8  Wall.  5. 
Following  California  v.  Central  Pac.  R. 
Co.,  127  U.  S.  I.  Not  following  Central 
Pac.  R.  Co.  V.  State  Board,  60  Cal.  35  ;  Los 
Angeles  v.  Southern  Pac.  R.  Co.,  61  Cal. 
59;  Santa  Clara  County  z/.  Southern  Pac.  R. 
Co.,  66  Cal.  642, 

(3)  Express  companies. — The  city  ordi- 
nance of  Mobile  of  1866  requiring  any  ex- 
press company  whose  business  extends  out 
of  the  state  to  pay  an  annual  license  of  S500 ; 
"if  within  the  limits  of  the  state,  $100"; 
and  "if  within  the  limits  of  the  city  of 
Mobile,  S50,"  is  valid.  Southern  Exp.  Co.  v. 
Mayor,  etc.,  of  Mobile,  49  Ala.  404. — Fol- 
lowing Osborne  v.  Mayor,  etc.,  of  Mobile, 
44  Ala.  493. — Osborne  v.  Mobile,  16  Wall. 
{U.  S.)  479,  4  Am.  Ry.  Rep.  364;  affirming 
44  Ala.  493.— Approved  in  State  v.  Cum- 
berland &  P.  R.  Co.,  40  Md.  22.  DiSTiN- 
GUiSHKD  IN  Pickard  v.  Pullman  Southern 
Car  Co.,  :i7  U.  S.  34. — But  see  Leloup  v. 
Port  of  Mobile,  127  U.  S.  640,  8  Sup.  Ct.  Rep. 
1380. 

The  city  of  Montgomery  has  authority 
under  its  charter  to  levy  and  collect  a  spe- 
cific tax  on  all  e.xpress  companies  doing 
business  within  its  corporate  limits,  and 
this  power  is  not  taken  away  as  to  the 
Southern  Express  company  by  that  provi- 
sion of  the  act  in  relation  to  said  company, 
approved  February  26, 1872,  which  declares: 
"  Nor  shall  any  municipal  corporation  levy 
any  percentage  tax  upon  the  receipts  of  said 
company,"  nor  by  any  other  provision  of 
said  act.  Montgomery  City  Council  v.  Shoe- 
maker, 51  Ala.  114. — Reviewing  Orange  & 
A.  R.  Co.  V.  Alexandria  City  Council,  17 
Gratt.  (Va.)  176. 

While  as  to  useful  trades  and  employ- 
ments the  power  of  a  municipal  corporation 
to  license  does  not  ordinarily  include  the 
power  to  tax,  yet  where  useful  occupations 
are  in  this  regard  placed  upon  the  same 
footing  as  those  which  serve  for  amusement 
only,  and  the  municipal  charter  provides 
that  in  granting  such  licenses  the  common 
council  "  shall  charge  such  sum  or  sums  of 
money  as  they  shall  deem  fit  and  reason- 


MUNICIPAL  CORPORATIONS,  7-». 


765 


able,"  they  are  authorized  to  use  the  power 
to  license  as  a  means  of  taxation  if  they  see 
proper  to  do  so  Adams  Exp,  Co.  v.  Owens- 
boro,  85  Ky.  365,  3  S.  W.  Kep,  370. 

A  city  which  is  authorized  by  its  charter 
to  license,  tax,  and  regulate  merchants, 
agents,  express  companies,  insurance  com- 
panies, etc.,  has  power  to  impose  an  ad  va- 
lorem tax  upon  tlie  gross  annual  receipts  of 
an  express  company  from  its  business  done 
in  the  city;  and  such  tax  does  not  violate 
the  constitutional  requirement  of  uniform- 
ity and  equality  because  different  from  that 
imposed  upon  merchants.  That  require- 
ment is  complied  witii  if  all  persons  en-' 
gaged  in  the  same  business  are  taxed  alike. 
American  Union  Exp.  Co.  v.  St.  Joseph,  66 
Mo.  675. 

A  tax  imposed  by  city  ordinance  upon  the 
gross  receipts  of  an  express  company  as  a 
compensation  for  the  transaction  of  its  busi- 
ness in  the  city  is  properly,  collected  from 
the  gross  earnings  without  deduction  for 
expenses  incurred  in  conducting  the  busi- 
ness. If  a  part  of  the  gross  receipts  has 
been  paid  out  to  other  companies  as  their 
pro  rata  for  carrying  freight,  although  in 
strictness  the  amount  so  paid  may  not  be 
liable  to  taxation  under  the  ordinance,  yet 
v?hen  such  part  is  embraced  in  the  return 
marie  by  the  company  itself,  and  the  tax  has 
been  paid  on  the  whole,  though  under  pro- 
test, it  cannot  be  recovered  back.  American 
Union  Exp.  Co.  v.  St.  Joseph,  66  Mo.  675. 

Foreign  express  companies  being  ex- 
empted by  statute  from  local  taxation  by 
the  payment  of  a  state  tax  for  the  privilege 
of  doing  business,  a  provision  in  the  charter 
of  a  city  authorizing  it  to  impose  a  license 
tax  upon  "each"  express  company  cannot 
be  held  to  apply  to  foreign  companies. 
Adams  Exp.  Co.  v.  Lexington,  83  Ky.  657. 
—Quoting  Elizabethtown  &  P,  R.  Co.  v. 
Elizabethtown,  12  Bush  (Ky.)  233. — Fol- 
lowed IN  Adams  Exp.  Co.  v.  Owensboro, 
85  Ky.  265. 

7.  Validity  of  tax  for  local  im- 
provement.*— An  ordinance  which  shows 
on  its  face  an  attempt  to  subject  property  to 
special  taxation  t  pay  for  an  improvement, 
which  property  will  in  no  way  be  benefited 
by  such  improvement,  will  not  justify  pro- 
ceedings for  the  levy  of  such  taxes.  Spe- 
cial taxes  for  local  improvements  are  justi- 
fied only  on  the  ground  that  the  subject  of 

*  See  also  Strrbts  and  Highways,  341«359. 


the  tax  receives  an  equivalent.  Bhomington 
V.  Chicago  Sf  A.  R.  Co.,  134  ///.  451,  26  N, 
E.  Kep.  366. 

Corporate  authorities  of  cities  and  vil« 
lages  may  not  arbitrarily  provide  by  ordi- 
nance that  an  improvement  within  their 
limits  shall  be  treated  as  a  local  improve- 
ment, to  be  paid  for  by  special  taxation  of 
abutting  property  without  reference  to  bene- 
fits, without  having  their  action  reviewed  by 
the  courts.  Bloomington  v.  Chicago  &•  A.. 
A\  Co.,  134  ///.  45'.  26  A'.  E.  Rep.  366. 

Cities  and  towns  are  only  empowered  to 
lay  out,  ooen,  and  improve  streets  for  such 
public  use  as  that  persons  and  property 
within  the  municipality  may  be  legitimately 
assessed  or  taxed  for  payment  therefor,  and 
persons  and  property  within  the  same  can- 
not be  legitimately  assessed  or  taxed  for 
the  right  of  way  or  for  making  and  improv- 
ing a  street  for  railway  purposes  alone. 
Ligare  v.  Chicago,  1 39  ///.  46,  28  A^.  E.  Rep. 

934- 

8.  Validity  of  assessmeuts  for  lo- 
cal iniproveiiieiits.*— Under  an  author- 
ity to  a  municipal  corporation  to  curb  and 
pave  a  public  highway,  and  to  file  liens  for 
the  expense  thereof  against  the  lots  of 
ground  "fronting  thereon,'  a  lien  cannot  be 
supported  against  a  lot  which  is  separated 
from  such  highway  by  a.  railway  running 
side  by  side  tlierewith.  Philadelphia  v. 
Eastwick,  35  Pa.  St.  75. 

A  city  assest,ed  a  railroad  company  for 
the  cost  of  paving  a  street  along  its  track, 
and  the  company  filed  a  bill  to  restrain  the 
assessment  on  the  ground  that  the  resolu- 
tion ordering  the  paving  to  be  done  was  not 
adopted  by  a  majority  of  the  council,  as  re- 
quired by  the  city  charter.  The  council 
consisted  of  eight  members  and  the  mayor, 
who  was  the  presiding  officer  and  only  en- 
titled to  a  vote  when  there  was  a  tie.  At 
the  meeting  passing  the  resolution  there  was 
a  tie,  and  the  mayor  voted  in  favor  of  it,  and 
declared  it  adopted.  Held,  that  the  resolu- 
tion was  legally  adopted.  Lake  Shore  &•  M. 
S.  R.  Co.  V.  Dunkirk,  48  A'.  Y.  S.  R.  208,  65 
Hun  494,  20  N.  Y.  Supp.  596. 

9.  Vacatiii{r  and  restraining  assess- 
ments for  local  improvements.— It  is 
well  settled  that  where  proceedings  upon 
an  assessment  are  void  upon  their  face  a 


*  Liability  of  railroad  property  to  assessment 
for  local  improvements,  see  notes,  7  Am.  &  ENOt 
R.  Cas.  Vib ;  13  Jd.  417. 


'  V  f      1 


I 


756 


MUNICIPAL   CORPORATIONS,  10-15. 


court  of  chancery  has  no  jurisdiction  to  in- 
terfere and  set  aside  the  assessment,  or  to 
restrain  the  corporation  from  proceeding  to 
sell  the  land  assessed,  on  the  j,'round  that 
the  ci)nii)lainant  has  a  perfect  remedy  at 
Inw.  Sixi/i  A7>e.  A\  Co.  v.  Alayor.etc.,  of  A'. 
v.,  43  iV.  K  S.  A'.  759,  63  //««  271,  17  A". 
y.  Supp.  903. 

But  as  to  New  York  city  such  action  is 
specially  forbidden  by  the  Consolidation 
Act,  §  897,  providing  that  "no  suit  or  ac- 
tion in  the  nature  of  a  bill  in  equity  or 
otherwise  shall  be  commenced  for  the  vaca- 
tion of  any  assessment  in  said  city  or  to  re- 
move a  cloud  upon  title,  but  owners  of 
property  sliall  be  confined  to  their  remedies 
in  such  cases  to  the  proceedings  "  provided 
for  by  the  act.  Sixth  Ave.  K.  Co.  v.  Mayor, 
etc.,  of  N.  Y.,  1J3  .V.  Y.  S.  li.  759.  63  Hun 
271,  17  A^.  Y.  Supp.  903. 

10.  Determining  validity  of  ordi- 
nances.—An  ordinance  must  not  conflict 
with  any  constitutional  law  upon  the  statute 
books  or  be  unreasonable,  Philadelphia  v. 
Empire  Pass.  K.  Co.,  7  Phila.  (Pa.)  321. — 
Reviewing  Northern  Liberties  Com'rs  v. 
Northern  Liberties  Gas  Co.,  12  Pa.  St.  318. 

The  validity  of  city  ordinances  once 
passed  and  recorded  cannot  be  affected  by 
subsequent  unauthorized  alterations  or  in- 
terlineations. Houston  &•  T.  C.  K.  Co.  v. 
Odum,  2  Am.  &*  Eng.  R.  Cas.  503.  53  Tex. 

343- 

If  an  ordinance  is  based  upon  a  general 
power,  and  its  provisions  are  more  detailed 
than  the  expression  of  power  confers,  the 
court  may  look  into  its  reasonableness. 
The  presumption  is  that  it  is  reasonable, 
and  the  burden  is  upon  the  party  who  de- 
nies the  validity  of  the  ordinance.  State 
v.  Trenton,  53  N.J.  L.  132,  20  Atl.  Rep. 
1079. 

11.  Publication— Recording.— Iowa 
Code,  §  492,  provides  that  all  city  ordi- 
nances shall,  as  soon  as  may  be,  be  recorded 
in  a  book  kept  for  that  purpose,  and  be  au- 
thenticated by  the  signature  of  the  presid- 
ing officer  of  the  council  and  the  clerk,  and 
that  such  ordinances  shall  take  effect  at  the 
expiration  of  five  days  after  they  have  been 
published.  Held,  in  an  action  against  a 
railroad  company  for  violating  an  ordi- 
nance, that  the  record  provided  for  by  the 
statute  is  not  sufficient  proof  of  the  ordi- 
nance, but  when  objected  to  by  the  company 
the  burden  was  on  the  city  to  show  that  the 
ordinance  had  been  duly  published.    Lar- 


kin  V.  Burlington,  C.  K.  &*  N.  R.  C(?., 85  Iowa 
492,  52  A'.  W.  Rep,  480. 

12.  Force  and  effect  of  ordinanccH. 

— A  valid  ordinance  of  a  city  stands  on  the 
same  footing  as  a  statute ;  therefore  it  is 
error  to  leave  it  to  the  jury  to  determine  the 
applicability  of  an  ordinance,  relating  to 
running  trains  on  the  streets,  to  tlie  cir- 
cumstances and  its  legal  effect.  It  presents 
a  question  of  law.  Pennsylvania  Co.  v. 
Frana,  13  ///.  App.  91. 

A  city  passed  an  ordinance  submitting  to 
the  voters  the  question  of  taking  stock  in  a 
railroad  company,  but  before  tlie  election 
the  law  under  which  the  city  was  acting  was 
amended,  but  the  amendment  neither  con- 
flicted with  nor  superseded  the  provisions 
of  the  ordinance.  Held,  that  the  rule  pre- 
scribed by  the  legislature  that  "  the  provi- 
sions of  any  statute,  so  far  as  they  are  the 
same  as  those  of  any  prior  statute,  shall  be 
construed  as  a  continuance  of  such  provi- 
sion, and  not  as  a  new  enactment,"  was  ap- 
plicable. Troy  V.  Atchison  &•  N.  R,  Co.,  \  i 
Kan.  519. 

13.  Construing  two  ordinances 
together. — Where  two  ordinances  for  the 
widening  of  a  part  of  a  street  are  passed  on 
the  same  day,  and  the  last  one  expressly 
refers  to  and  is  by  its  terms  dependent  upon 
the  adoption  and  enforcement  of  the  first, 
and  requires  that  the  entire  expense  of  en- 
forcing both, and  all  damages  which  maybe 
adjudged  against  the  city,  shall  be  paid  by 
certain  railway  companies  in  whose  interest 
the  ordinances  are  passed,  they  will  be 
treated  as  two  parts  of  a  single  and  entire 
scheme  the  same  as  if  both  were  embodied 
in  one  ordinance.  Ligare  v.  Chicago,  139 
///.  46.  28  N.  E.  Rep.  934. 

14.  Ratifying  former  invalid  or- 
dinance.— A  city  council  passed  an  ordi- 
nance attempting  to  grant  a  corporation 
certain  exclusive  privileges  which  was  void 
for  want  of  authority,  but  subsequently  it 
adopted  and  ratified  the  invalid  ordinance. 
Held,  that  the  ratifying  ordinance  was  not 
invalid  because  it  provided  that  ordinances 
granting  privilec^ps  should  not  be  enlarged 
thereby.  ihe  proper  meaning  was  that 
they  should  not  be  enlarged  beyond  their 
original  intention.  Des  Moines  St.  R.  Co. 
V.  Des  Moines  B.  6.  St.  R.  Co.,  32  Am.  &* 
Efig.  R.  Cas.  209,  73  Iowa  513,  33  A^.  W. 
Rep.  610,  35  N.  W.  Rep.  602. 

15.  Enjoining  enforcement  of  or- 
dinances.— Ordinances  of  towns  and  citie» 


MUNICIPAL  CORPORATIONS,  10-20. 


757 


1.,  8$  Iowa 

inaiiecH. 

ds  on  the 
•fore  it  is 
rniine  the 
ilating  to 
o  the  cir- 
t  presents 
Wi'ti   Co,    V. 

mittinp  to 
stock  in  a 
e  election 
actinj;  was 
ther  con- 
provisions 
!  rule  pre- 
the  provi- 
ey  are  the 
:e,  sliall  be 
Lich  provi- 
"  was  ap- 
A'.  Co.,  11 

dliiaiiccs 

ces  for  the 
passed  on 
expressly 
ident  upon 
)f  the  iirst, 
ense  of  en- 
ich  may  be 
be  paid  by 
)se  interest 
ey  will  be 
and  entire 
;  embodied 
/ttca^o,  139 

iralid    or- 

;d  an  ordi- 
:orporation 
h  was  void 
equently  it 
ordinance, 
ce  was  not 
ordinances 
le  enlarged 
;  was  that 
yond  their 
S/.  A\  Co. 
32  j4m.  <S» 
.  33  ^'  ^' 

nt  of  or- 

s  and  cities 


for  the  protection  of  persons  and  property 
and  preservation  of  peace  and  good  order, 
and  proceedings  under  them,  althougii  civil 
in  form,  to  recover  a  penalty,  are  quasi 
criminal  in  character.  And  a  court  of 
i(l',iity  will  not  interfere,  by  injunction,  to 
rcstr.iin  their  enforcement  in  the  appro- 
priati;  courts  upon  the  ground  that  such  or- 
dinances are  oHej^ed  to  bo  illegal,  or  be- 
cause of  the  alleged  innocence  of  the  party 
charged.  Nor  will  that  court  enjoin  such 
proceedings  for  the  purpose  of  determining 
the  validity  (if  thu  ordinance  in  a  court  of 
law,  when  the  defendant  has  an  adequate 
remedy  at  law  for  any  injury  he  may  sus- 
tain. Poyer  v.  Des  Plaincs,  123  ///.  m,  13 
;\'.  E.  Rjp.%\(). — Followed  in  Chicago,  B. 
&  y.  U.  Co.  V.  Ottawa,  47  111.  App.  73. 

1<(.  Itcpual  of  ordiiiaiic«M.— The  re- 
peal of  an  ordinance  will  not  operate  to  dis- 
turb private  rights  vested  under  it.  Cape 
May  i3^  S.  L.  R.  Co.  v.  Cape  May,  9  Am.  &> 
Eng.  R.  Cas.  474,  35  A'.  /.  £f.  419. 

17.  Ordiiiaiice.s  cliaii{;iiitr  grade  of 
streets. — If  an  ordinance,  which  is  intend- 
ed to  change  the  grade  of  a  street  so  as  to 
carry  it  over  an  intersecting  railroad  by 
means  of  a  bridge  and  approaches,  contains 
a  clause  vacating  a  part  of  tiie  street  on 
which  the  approach  is  to  rest,  it  thereby  de- 
feats its  main  object,  and  it  will  be  set  aside 
as  unreasonable.  Read  v.  Camden,  54  N.J. 
L.  347,  24  Atl.  Rep.  549;  reversing  53  N.J. 
L.  322,  21  Atl.  Rep.  565. 

18.  Ordinances  to  prevent  nui- 
sances.— The  legislature  may,  for  public 
purposes,  prescribe  the  limits  of  municipal 
bodies,  enlarging  or  contractin<;;  them  at 
pleasure,  and  give  them  power  to  pass  or- 
<iinances  to  prevent  nuisances  to  operate 
beyond  their  boundaries.  Chicago,  P.  «5>»  P. 
Co.  V.  Chicai^o,  88  ///.  221.— APPLIED  IN  Al- 
lerton  v.  Chicago,  9  Biss.  (U.  S.)  552. 

A  city  or  incorporated  town  has  no  au- 
thority to  provide  by  ordinance  for  the 
pimishment  by  fine  of  persons  guilty  of  the 
crime  of  nuisance.  KnoxviUe  v.  Chicago, 
n.  (S-  Q.  R.  Co.,  83  Iowa  636,  50  N.  IV. 
Rep.  61. 

A  railroad  track  is  not  a  lot,  street,  dock, 
wharf,  or  pier,  within  the  meaning  of  the 
ciiarter  of  Jersey  City ;  it  is  a  public  high- 
way, created  under  the  authority  of  the  leg- 
islature. State  V.  Jersey  City,  29  N.  J.  L. 
170. 

1 0.  Ordinances  relative  to  ice  and 
snow.— An  ordinance  requiring  all  persons 


to  keep  tiicir  sidewalks  free  from  ice  im- 
poses a  purely  public  duty,  and  persons  in- 
jured by  slipping  on  the  ice  cannot  bring 
private  actions  against  the  owners  of' the 
premises.  Taylor  v.  Lake  Shore  &*  M.  S. 
R.  C>.,  9  Am.  <S>»  Eng.  R.  Cas.  127,  45  Mich. 
74.  •'   '\  li'.  Rep.  728. 

Br  u^ches  of  public  duty  must  be  punished 
in  some  form  of  public  prosecution,  and 
njt  by  way  of  individual  recovery  of  dam- 
ages; though  when  the  duty  imposed  is  for 
the  protection  and  benefit  of  a  particular 
individual  or  class,  as  well  as  for  that  of 
the  public,  there  maybe  an  individual  right 
of  action  for  individual  injury,  as  well  as  a 
public  prosecution.  Taylor  v.  Lahe  Shore 
&•  M.  S.  R.  Co.,  9  Am.  &>•  Eng.  R.  Cas.  127, 
45  Mich.  74,  7  A^.   IV.  Rep.  728. 

When  a  municipal  charter  empowers  the 
common  council  to  regulate  the  care  of 
sidewalks  for  the  public  benefit,  and  pro- 
vides that  lot  owners  shall  be  liable  to  the 
city  for  all  damages  which  the  city  may  be 
compelled  to  pay  for  the  default  in  neglect- 
ing to  observe  such  regulations,  no  action 
against  a  lot  owner  can  arise,  if  at  all,  until 
after  the  city  has  been  held  liable  in  a  suit 
against  it.  Taylor  v.  Lake  Shore  &»  M.  S. 
R.  Co.,  9  Am.  (S»  Eiig.  R.  Cas.  127, 45  Mich. 
74,  7  A'.  IV.  Rep.  728. 

20.  Municipal  officers.— A  city  is  li- 
able in  damages  for  a  trespass  committed 
by  the  city  officers  and  men  employed  by 
them  in  removing  a  railroad  depot.  Pont- 
chartrain  R,  Co.  v.  New  Orleans,  27  La. 
Ann.  162. 

A  mayor  has  the  same  jurisdiction  and 
powers  within  the  city  limits  as  a  justice  of 
the  peace,  and  by  statute  the  jurisdiction  of 
justices  is  confined  to  their  own  townships; 
but,  as  a  rule,  an  action  may  be  brought  be- 
fore a  mayor  upon  a  contract  made,  or  for 
a  tort  committed,  without  the  city,  if  the 
defendant  lives  in  the  city.  Wabash,  St.  L. 
S-  P.  R.  Co.  V.  Lash,  103  Ind.  80,  2  ^V.  E. 
Rep.  250. 

The  mayor  of  an  incorporated  city  secretly 
contracted  to  purchase,  at  a  discount  of 
;^io,ooo,  a  large  amount  of  debentures  of 
the  city  which  were  expected  to  be  issued 
under  a  future  by-law  of  the  city  council  for 
stock  of  a  railroad,  and  was  himself  an  ac- 
tive party  afterwards  in  procuring  and  giv- 
ing effect  to  the  by-law,  which  was  sub- 
sequently passed.  Neltl,  that  he  was  a 
trustee  for  the  city  of  the  profit  he  derived 
from  the  transaction.     Ttronto  v.  Bowes,  4 


I 


758 


MUNICIPAL  CORPORATIONS,  21-25. 


i  J 


Grant's  Ch.  {U.  C.)  489;  affirmed  in  6 
(J  rant's  CIt,  i. 

A  inunicipul  corporation  is  not  estopped 
to  set  up  a  defense  to  a  judgment  licid 
against  it  by  an  assignee,  altli<iugli  its  offi- 
cers—e.  g.,  its  treasurer  or  attorney — repre- 
sented to  such  assignee  when  about  to  pur- 
chase tlie  judgment  that  it  would  be  settled 
or  funded,  if  sucli  representation  was  made 
in  good  faith  and  without  knowledge  or 
culpable  ignorance  of  the  defense,  or  as 
mere  expression  of  opinion,  or  was  made 
without  express  authority  of  the  city  coun- 
cil. Taylor  v.  Nashville  &*  C.  A'.  Co.,  86 
Te»n.  228,  6  5.  IV.  Kep.  393. 

A  city  solicitor  is  not  authorized  to  begin 
a  suit  on  behalf  of  the  city  by  virtue  of  the 
inherent  power  of  his  office.  Where,  how- 
ever, he  has  assumed  to  act  by  virtue  of 
such  authority  in  filing  a  bill  for  an  injunc- 
tion on  behalf  of  the  city,  in  a  proper  care 
the  court  will  hold  the  bill  until  the  city 
councils  have  an  opportunity  to  ratify  the 
suit  and  authorize  it  to  be  proceeded  with. 
Lebanon  v.  Lebanon  &*  A.  St.  R,  Co.,  i  Pa. 
Dist.  563. 

A  board  of  public  works  of  a  city  is  not 
justified  in  refusing  to  supply  water  for  the 
use  of  the  engines  of  a  railroad  being  oper- 
ated by  a  receiver  under  the  direction  of 
the  court  on  the  ground  that  certain  water 
rents,  which  were  due  when  the  railroad 
was  declared  insolvent,  are  unpaid.  Coe  v. 
Neiv  Jersey  Midland  li.  Co.,  30  N.  J.  Eq. 
440.— Following  Dayton  v.  Quigley,  29 
N.  J.  Eq.  n. 

II.  FABTICULAB  HUNICIFALITIES. 

21.  Athens.— The  city  has  no  power 
under  its  ciiarter  to  make  a  contract  with  a 
railroad  company  promising  to  secure  for 
it  a  right  of  way  through  the  city,  together 
with  certain  lots  of  land  therein.  Such 
power  is  not  conferred  by  the  authority 
granted  in  the  charter  to  pass  ordinances 
relating  to  the  opening  and  laying  out  of 
streets,  the  same  having  no  reference  to 
the  roadbed  of  a  railroad  company.  Cov- 
ington (Sr*  M,  R.  Co.  V,  Mayor,  etc.,  of  Athens, 
85  Ga.  367,  \i  S.  E.  Rep.  663. 

Money  expendea  in  fulfilment  of  buch 
contract,  and  on  the  faith  of  the  promise,  is 
not  due  for  purely  charitable  purposes,  but 
for  the  interest  and  purposes  of  the  railroad 
company;  and  even  were  it  shown  that 
the  city  received  any  benefit  from  the  con- 


tract, the  same  is  void  as  contrary  to  public 
policy.  Covington  &*  M.  R.  Co.  v.  Mayor, 
etc.,  0/ Athens,' »s  G"-  367.  n  ^.  E.  Rep.  663. 

22.  AiiKiiNtii.— The  act  of  1856  which 
permits  the  city  council  to  authorize  the 
connection  by  common  depots,  tracks,  or 
otherwise,  of  all  railroads  in  ihe  city,  or  of 
any  of  them,  upon  such  terms  and  condi- 
tions as  n)ay  be  fixed  and  agreed  on  be- 
tween tile  city  council  and  them,  coniers 
a  discretionary  power  upon  the  municipal 
authorities,  but  does  not  compel  them  to 
allow  such  connections.  Augusta  City 
Council  v.  Port  Royal  <S«»  A.  R,  Co.,  74  Ga. 
658. 

23.  Biiltiiiiorc.— The  ordinance  of  the 
mayor  and  city  council  entitled  "An  ordi- 
nance to  provide  for  raising  the  sum  of  one 
million  of  dollars  by  the  mayor  and  citv 
counril  of  Baltimore,  by  means  of  the  hy- 
pothecation of  such  number  of  sharesof  the 
cai)ital  stock  of  the  Baltimore  and  Ohio  R. 
Co.  as  may  be  necessary  for  that  purpose ; 
and  for  investment  of  said  sum  of  money  in 
the  bonds  of  the  Western  Maryland  R.  Co., 
to  be  secured  by  a  mortgage,  next  in  prior- 
ity after  the  mortgages  already  executed  by 
said  company,"  is  within  the  scope  and  pur- 
view of  the  provision  contained  in  the  Md. 
Const,  of  1867,  art.  11,  §  7,  which  declares 
that  "  no  debt  shall  be  created  by  the  mayor 
and  city  council  of  Baltimore  unless  it  be 
authorized  by  an  act  of  the  general  assembly, 
and  by  an  ordinance  of  the  inayor  and  city 
council  of  Baltimore,  submitted  to  the  legal 
voters  of  the  city,  and  approved  by  a  major- 
ity of  the  votes  cast,"  and  the  same  not  hav- 
ing been  so  authorized  and  approved,  is 
null  and  void.  Mayor,  etc.,  of  Baltimore  v. 
G"///,  31  JA/.375.— DiSTiNCJUiSHKi)  IN  West- 
ern Md.  R.  Co.  V.  Patterson,  37  Md.  125. 
Revikwed  in  Newmeyer  7/.  Missouri  &  M. 
R.  Co..  52  Mo.  81. 

24.  Bsuij^or. — The  city  council  is  a 
body  entirely  distinct  and  different  from  the 
mayor  and  aldermen,  and  the  assent  of  the 
former  to  the  construction  of  a  railroad 
across  a  street  in  that  city  is  nugatory  and 
confers  no  authority  for  that  purpose.  Vea- 
zie  v.  Mayo,  45  Me.  560. 

2/7.  Bayoiiiie. — A  resolution  passed  by 
the  common  council  authorizing  a  person, 
at  his  own  expense,  to  grade  a  portion  of  a 
street  and  build  a  bridge  therein  across  a 
private  canal  is  invalid.  Such  authorization 
should  have  been  by  ordinance.  State  {Ber- 
gen Neck  R.  Co.,  Pros.)  v.  Bayonne,  54  N.J. 


MUNICIPAL   CORPORATIONS,  '2r,  :JO. 


/-.  474,  24  .f//.  A'l'P.  448.— Foi.i.owiNfi  Story 
7'.  Hayonne,  35  N.  J.  L.  335 ;  Parkard  v. 
MerKen  Neck  K.  Co.. 48  N.  J.  Eq.  281.  Rk- 
viKWiNG  Hunt  V.  Lambcrtville,  45  N.  J.  L. 
279. 

20.  Brooklyn.— New  York  Act  of  1876, 
ch.  187,  specially  authorizing  the  Atlantic 
Avenue  R.  Co.  and  the  Long  Island  R.  Co., 
as  les.see  of  the  f(jrnier,  to  use  steam  power 
on  Atlantic  avenue,  is  valid,  notwithstand- 
ing that  under  the  act  of  1859,  ch.  484,  the 
company  had,  among  other  things,  agreed, 
for  a  consideration,  to  relinquish  the  use  of 
steam  power  within  the  city.  Such  contract 
would  not  prevent  the  lrt;islature  from  again 
conferring  upon  the  Lwiiipany  the  right  to 
use  steam  power.  People  v.  Long  hhxnd  R. 
Q).,  60  //ow.  /v.  (A^.  y.)  395,  9  A6i>.  JV.  Cas. 
r8i. 

It  was  not  within  the  power  of  said  com- 
pany by  contract  to  bind  itself  to  a  particu- 
lar mode  of  propelling  its  trains  in  the 
absence  of  a  statute  authorizing  it,  and  re- 
gardless of  the  interest  of  the  people.  Peo- 
ple V.  Lo>tg  Island  A".  Co.,  60  H&iv.  Pr.  (A'. 
y)  395.  9  Abb.  N.  Cas.  181. 

And  the  above  act  of  1876  is  not  in  con- 
flict with  that  provision  of  the  constitution 
of  the  United  States  which  provides  that  no 
person  shall  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law ;  neither 
is  it  in  conflict  with  the  provision  of  the 
state  constitution  which  prohibits  the  legis- 
lature from  passing  any  private  or  local 
bill  granting  to  any  corporation,  associa- 
tion, or  individual  the  right  to  lay  down 
railroad  tracks,  or  from  granting  any  corpo- 
ration any  exclusive  privilege,  immunity,  or 
franchise.  People  v.  LoHi^  Islai..!  R.  Co.,  60 
How.  Pr.  {N.   Y.)  395,  9  Abb.  N.  Cas.  181. 

27.  Buffalo.— N.  Y.  Act  of  1892,  ch. 
466,  entitled  "  An  act  to  authorize  the  city 
of  BufTiilo  to  take  and  improve  lands  for 
park  purposes, '  does  not  authorize  it  to  take 
land  already  in  actual  use  for  railroad  pur- 
poses. In  re  Buffalo,  72  Hun  422,  25  A^.  Y. 
Supp.  218. 

Neither  can  said  city  take  land  already 
used  for  railway  purposes  ff>r  park  purposes, 
under  a  statute  which  ?jthorizes  the  exten- 
sion of  highways  over  the  right  of  way  of 
railroads.  In  re  Buffalo,  72  Hun  422,  25  A^. 
Y.  Supp.  218. 

28.  Cliica(;o.  —  As  riparian  owner  of 
grounds  fronting  on  Lake  Michigan,  the 
city  h:is  the  power  to  maintain  wharves  at 
the  end  of  streets,  and  to  maintain  break- 


waters to  protect  the  shore  ;  and  it  may  del- 
egate the  duty  to  erect  such  breakwaters  to 
a  railroad  company,  as  a  consideration  for 
allowing  the  road  to  enter  the  city.  Illinois 
V.  Illinois  C.  R.  Co.,  33  Jud.  Rep.  730 ;  tnodi- 
fii'd  and  affirmed  in  146  U.  S.  387,  13  Sup. 
CI.  Rep.  1 10. 

When  such  breakwater  is  erected  and  the 
intermediate  space  brtween  it  and  the  edge 
of  the  water  is  reclainiti!  ly  tilling  in,  the 
land  thus  reclaimed  bL>loiii;s  to  the  city. 
Illinois  V.  Illinois  C.  R.  Co.,  33  Fed.  Rep. 
730;  modified  and  aff'rnied  in  146  U,  S.  387, 
1 3  Sup.  Ct.  Rep.  II. 

29.  Coliiiiilui!*.  — Under  thi,  act  incor- 
porating the  city,  the  fet.  in  lic  streets  is  in 
the  state  and  the  u.se  i  1  iIk-  public  ;  and  the 
municipal  authorities  have  no  power  to  au- 
thorize any  obstructions  to  he  placed  in  the 
streets,  legislative  action  being  iiecctsiuy 
for  that  purpose.  The  act  of  1857  authoi- 
ized  the  connection  of  the  Muscogee  R. 
with  the  Opelika  Branch  R.  and  the  Mobile  & 
Girard  R.  at  Columbus  by  extending  their 
roads  through  the  city  commons  and  streets, 
with  such  side  tracks,  turnouts,  and  sheds 
as  might  be  necessary  for  the  convenience 
of  freights  and  passengers,  provided  they 
first  obtained  the  consent  of  the  people  of 
the  city  upcjn  such  terms  as  might  be  agreed 
on  and  should  be  satisfactory  to  them.  But 
wl'cre  the  municipal  authorities,  by  resolu- 
tio.i,  proposed  to  the  people  to  vote  "  con- 
nection "  or  "  no  connection,"  only  submit- 
ting the  question  of  allowing  a  connection 
by  a  single  track,  and  tiic  vote  w  ,  in  favor 
of  "  connection,"  this  action,  wui.out  more, 
did  not  authorize  the  laying  of  side  tracks 
in  the  street,  nor  could  the  mayor  and  coim- 
cil,  without  further  authority,  gnint  such 
power.  Kaimnai^/i  v.  Mobile  &^  (.?.  R.  Co., 
32  Am.  &*  Eng,  R.  Cas.  267,  78  Ga.  271,  2  .V. 
E.  Rep.  636. 

30.  Coviiij^toii.  —  A  provision  in  the 
charter  of  a  railway  company  that  it  "  may 
construct,  openite,  and  maintain  a  railway 
from  any  point  over  the  line  of  its  railway  to 
the  cities  of  Newport,  Covington,  or  either 
of  them,"  does  not  confer  upon  the  com- 
pany power  to  operate  and  maintain  its 
railway  upon  any  street  of  the  city  of  Cov- 
ington with  or  without  the  sanction  of  the 
city  council,  the  power  to  use  a  street  for 
such  purpose  being  only  capable  of  being 
conferred  by  express  enactment,  or  by  the 
use  of  language  which  necessarily  implies 
the  power.     Ruttles  v.  Covitigton,  {Ky.)  38 


i 


J 


i-ty 


760 


MUNICIPAL  CORPORATIONS,  31-30. 


f:  I 


A»i.  <S-  Eu^.  K.  Cas.  408,  10  5.    W.  Rep. 
644. 

31.  Denver.  —  In  1873  and  1874  the 
city  could  not  grant  to  individuals  or  a  cor- 
poration a  special  privilege  or  franchise  of 
constructing  and  operating  a  railway  in  the 
public  streets  of  the  city,  because  the  legis- 
lative assembly,  from  which  the  city  received 
its  authority,  had  not  at  thai  time  any  such 
power,  and  in  the  general  power  over  the 
streets  of  the  city  which  was  conferred  by 
the  charter  of  1866  no  such  aiitiiority  is 
given.  And  if  the  charter  of  1874  was  in- 
tended to  confer  such  power,  the  legislative 
assembly  exceeded  its  authority,  and  the 
act  is  in  that  particular  void.  Denver  ^3^'  5. 
R.  Co.  V.  Denver  City  R.  Co.,  2  Colo.  673,  20 
Am.  Ry.  Rep.  339.  Denver  Circle  R.  Co.  v. 
Nestor,  10  Colo.  403,  15  Pac.  Rep.  714.  See 
also  Denver  Circle  R.  Co.  v.  Wiggins,  10 
Colo.  \z6,  15  Pac.  Rep.  lid.  Denver  Circle 
R.  Co.  V.  Clark,  10  Colo.  427,  15  Pac.  Rep. 
726.  Denver  Circle  R.  Co.  v.  Bigler,  10 
Colo.  428, 1 5  Pac.  Rep.  726.  Denver  Circle  R. 
Co.  V.  Martin,  10  Colo.  428,  15  Pac.  Rep.  726. 

Under  Colo.  Rev.  St.  1868,  p.  619,  §  5,  the 
city  only  acquired  a  qualified  fee  in  streets 
of  an  addition  to  the  city  platted  in  May, 
1876,  and  could  only  hold  them  in  trust  for 
ordinary  public  purposes ;  and  it  had  no 
authority  to  authorize  railroad  tracks  on 
such  streets  so  as  to  prevent  an  abutting 
owner  from  recovering  damages.  Denver 
Circle  R.  Co.  v.  Nestor,  10  Colo.  403,  15  Pac. 
Rep.  714.  See  also  Denver  Circle  R.  Co. 
V.  Wiggins,  10  Colo.  426,  15  Pac.  Rep.  726. 
Denver  Circle  R.  Co.  v.  Clark,  10  Colo.  427, 
1 5  Pac.  Rep.  726.  Denver  Circle  R.  Co.  v. 
Bigler,  10  Colo.  428.  15  Pac.  Rep.  726.  Den- 
ver Circle  R.  Co.  v.  Martin,  10  Colo.  428,  1 5 
Pac.  Rep.  726. 

33.  l>etroit.— The  citv,  under  its  char- 
ter as  existing  in  1885,  cannot  build  a  bridge 
for  a  crossing  over  a  railroad  track  in  a 
public  street  in  tiie  city,  and  plaintiflf  prop- 
erly recovered  damages  for  injuries  sustained 
bv  him  as  an  abutting  landowner  through 
the  building  of  such  a  bridge.  (Campbell, 
J.,  Sherwood,  C.J.,  and  Morse.  J.,  qualify- 
ing.) Schneider  v.  Detroit,  72  Mich.  240,  40 
N.   W.  Rep.  329. 

33.  Dnbnqne.— Bayous  and  sloughs  of 
the  Mississippi  river  which  are  not  required 
to  be  preserved  for  the  purposes  of  naviga- 
tion are  subject  10  state  or  municipal  con- 
trol ;  therefore  the  city  is  authorized  to  fill 
a  slo^h  in  the  river  at  that  place,  and  to 


authorize  railroad  tracks  to  be  built  thereon. 
Ingraham  v.  Chicago,  D.  <&*  M.  R.  Co.,  34 
loTiva  249,  5  Am.  Ry.  Rep.  99. 

34.  E;vst  St.  Louis.— Section  20  of  the 
charter  of  the  city,  authorizing  the  city 
council  to  make  any  contract  or  arrange- 
ment with  any  street  or  horsf-railroad  com- 
pany for  the  use  of  any  street,  etc.,  provided 
the  consent,  in  writing,  of  the  owners  of 
three  fourtiis  of  the  property  per  lineal  foot 
fronting  on  such  streets,  etc.,  be  first  ob- 
tained, applies  exclusively  to  the  street  or 
horse  railroads  strictly  so  called,  and  has 
no  application  to  railroads  contemplated  in 
the  General  Railroad  Law.  Wiggins  Ferry 
Co.  V.  East  St.  Louis  Union  R.  Co.,  20  Am. 
(^  Eng.  R.  Cas.  9,  107  ///.  450. 

35.  Elniiru.— The  N.  Y.  canal  board 
having  declan'd  abandoned  by  the  state  cer- 
tain land,  part  of  the  Chemung  canal,  in  the 
city,  the  legislature  in  1872  (ch.  785,  Laws 
of  1872)  conferred  upon  the  city  authority 
to  convert  the  abandoned  land  into  a  street ; 
this  was  accepted  by  the  city.  Previous  to 
this  the  state  had  granted  letters  patent  (or 
a  portion  of  the  land  to  an  individual.  In 
1878  an  act  was  passed  (ch.  171,  Laws  of 
1878)  by  the  terms  of  which  the  state  re- 
leased and  transferred  to  the  city  the  aban- 
doned land  "  for  the  use  and  purposes  of  a 
street "  on  condition  that  it  pay  to  the 
claimants  under  the  letters  patent  a  sum 
specified  "  for  the  title  and  interests  of  the 
state  and  of  said  defendants,"  the  same  to 
be  raised  by  assessment  upon  the  lands  to 
be  benefited  by  changing  the  canal  into  a 
street.  Tlie  payment  was  made  by  the  city 
and  accepted  by  the  claimants.  By  act  of 
1881  (ch.  482,  Laws  of  1881)  plaintifTs,  who 
ow  led  lots  adjoining  said  street,  acquired 
whatever  title  then  remained  in  the  state, 
to  the  center  of  the  street  opposite  their 
lots.  In  an  action  to  restrain  defendant,  a 
street  railroad  corporation,  from  laying  its 
tracks  on  that  portion  of  the  street— //^/r/, 
that  by  the  act  of  1878  the  city  acquired  not 
merely  the  easement  but  all  the  title  of  the 
state  then  outstanding,  to  be  held  in  trust 
for  the  public  use  as  a  street ;  and  so,  that 
plaintiffs  had  no  title  and  the  action  was 
not  maintainable.  De  Witt  v.  Elmira 
Transfer  R.  Co.,  134  A'.  Y.  495,  32  N.  E. 
Rep.  42,  48  N.  Y.S.  R.  320;  affirming  55 
Hun  612,  29  A^.  Y.  S.  R.  613,  5  Silv.  Sup. 
Ct.  568,  9  A'.  Y.  Supp.  149- 

30.  Hemlersoii.— A  bridge  across  the 
Ohio  river  from  the  city  to  a  point  on  the 


^IP 


MUNICIPAL   CORPORATIONS,  37-42. 


761 


20  of  the 
the    city 

arrange- 
oad  corn- 
provided 
)wiiers  of 
i Ileal  foot 

first  ob- 
street  or 

and  has 
plated  in 
ins  Ferry 

20  Am. 


Indiana  shore  is  subject  to  taxation  by  the 
city  for  school  and  railroad  purposes,  under 
an  act  of  the  legislature  authorizing  the  city 
to  impose  such  a  tax  upon  real  estate  with- 
in its  limits,  the  limits  of  the  city  extending 
to  low-water  mark  011  the  Indiana  shore. 
Henderson  Bruise  Co.  v.  Henderson,  90  Ky. 
498,  14  5.  W.  Rep.  493- 

37.  Hobokeu. — The  power  to  regulate 
and  grade  streets,  and  to  declare  what  shall 
be  nuisances,  must  be  exercised  by  ordi- 
nance, and  not  by  resolution.  State  v. 
Mayor,  etc.,  of  Hoboken,  35  N.  J.  L.  205. — 
Following  State  v.  Bergen,  33  N.  J.  L.  72. 
— Followed  in  State  (Halsey,  Pros.)  v. 
Mayor,  etc.,  of  Newark,  54  N.  J.  L.  102. 

38.  Hudson.— The  supplement  to  the 
cliarter  of  the  city  of  March  15,  1861,  au- 
tliorizing  the  common  council  to  grant  per- 
mission to  any  persons  or  corporations  to 
lay  railroad  tracks  through  the  streets  and 
rim  cars  on  them,  under  such  licenses  and 
conditions  as  said  council  should  think 
proper,  and  subject  to  be  revoked  at  pleas- 
ure— held,  to  be  prospective,  and  not  to 
affect  existing  rights.  State  {Hoboken  <S>» 
W.  H.  R.  Co.,  Pros.)  v.  Mayor,  etc.,  of  Ho- 
boken, 30  N.J.  L.  225. 

39.  Jatuaieu. — The  village  passed  an 
ordinance  prohibiting  the  loading  or  un- 
loading of  manure  along  the  line  of  any 
railroad,  or  allowing  any  car  so  loaded  to 
be  left  standing  on  the  track,  in  the  village. 
Subsequently,  in  1866.  the  legislature  passed 
an  act  creating  a  metropolitan  sanitary  dis- 
trict and  board  of  health  therein,  which  in- 
cluded said  village.  Held,  that  the  statute 
supersede-?  the  ordinance,  and  prohibited 
any  action  under  the  ordinance  by  the  vil- 
lai;e.  Jamaica  v.  Long  Island  R,  Co.,  37 
How.  Pr.  (N.  Y.)  379. 

And  independent  of  the  statute  the  ordi- 
nance was  void,  and  ccald  not  be  enforced, 
where  it  was  so  broad  as  to  interfere  with 
the  rights  and  privileges  conferred  by  gen- 
eral laws  upon  railroad  companies.  Jatnaica 
V.  Long  Island  R.  Co.,  37  How.  Pr.  {N.  Y.) 
379- 

40.  Jefferson.  —  After  the  passage  of 
Mo.  Aqt  of  March  10,  1871,  prescribi.ig  a 
method  of  taxing  railroads,  the  city  had  no 
power  under  its  charter  to  collect  taxes 
from  railroad  property  within  the  city  lim- 
its ;  and  the  act  prohibited  the  collecting  of 
such  taxes  in  the  year  1871.  Pacific  R.  Co. 
V.  IVatson,  61  Mo.  57.— Quoted  in  State  ex 


rel.  V.  St.  Louis,  K.  C.  &  N.  R.  Co.,  9  Mo. 

App.  532. 

41.  Levis. —  Under  44  &  45  Vict.  c. 
40,  §  2  (P.  Q.)  passed  on  petition  of  the 
Quebec  Central  R.  Co..  the  town  passed 
a  by-law  guaranteeing  to  pay  the  whole 
cost  of  expropriation  for  the  right  of  way 
for  the  extension  of  the  railway  to  deep 
water  on  the  St.  Lawrence  river  over  and 
above  $30,000.  Certain  ratepayers  of  the 
town  obtained  an  injunction  to  stay  fur- 
ther proceedings  on  the  by-law  on  the 
ground  of  illegality.  The  proviso  in  sec- 
tion 2  of  the  act  under  which  it  was  con- 
tended that  the  by-law  was  authorized 
was,  "  Provided  that  within  thirty  days 
from  the  sanction  of  the  present  act  the 
corporation  of  the  town  of  Levis  furnishes 
said  company  with  its  said  guaranty  and 
obligation  to  pay  all  excess  over  $30,000  of 
the  cost  of  expropriation  for  the  right  of 
way."  By  the  act  of  incorporation  of  the 
town  no  power  or  authority  is  given  to 
the  corporation  to  give  such  guaranty. 
The  statute  44  &  45  Vict.  c.  40  was  passed 
June  30,  1881,  and  the  by-law  forming  the 
guaranty  was  passed  July  27  following. 
Held,  that  the  statute  in  question  did  not 
authorize  the  corporation  of  the  town 
to  impo*se  burdens  upon  the  municipality 
which  were  not  authorized  by  their  acts  of 
incorporation  or  other  special  legislative 
authority,  and  therefore  the  by-law  was  In- 
valid, and  the  injunction  must  be  sustained. 
Quebec  Warehouse  Co.  v.  Levis,  1 1  Can.  Sup. 
Ct.  666. — Reviewing  Manchester,  S.  &  L. 
R.  Co.  V.  Worksop  Local  Board  of  Health, 
3  Jur.  N.  S.  304;  Carlisle  v.  South-Eastern 
R.  Co.,  I  Mc.N.  &  G.  689 :  Winch  v.  Bir- 
kenhead, L.  &  C.  J.  R.  Co.,  16  Jur.  1035. 

42.  Los  Angeles. — The  city  has  power 
to  impose  a  license  tax  "  for  every  steam 
railroad  company  having  a  depot  in  the 
city,"  and  the  fact  that  the  business  of  the 
company  extends  beyond  the  city  limits 
does  not  prevent  the  imposition  of  such  tax ; 
and  the  city  is  empowered  to  prescribe  either 
an  ordinary  action  for  the  recovery  of  such 
license  tax,  or  a  penalty  for  non-payment,  or 
both.  Zj)s  Angeles  v.  Southern  Pac,  R.  Co. 
61  Cal.  59.- Distinguishing  Santa  Cruzw. 
Santa  Cruz  R.  Co.,  56  Cal.  151.  Not  fol- 
lowed in  San  Benito  County  v.  Southern 
Pac.  R.  Co.,  37  Am.  &  Eng.  R.  Cas.  374,  77 
Cal.  518,  19  Pac.  Rep.  827. 

The  fact  that  plaintifl  city  granted  a  right 


MUNICIPAL   CORPORATIONS,  43-47. 


iit'j 


.1- 


lii 


of  way  to  a  railroad  company  "  free  of  any 
claim  for  damages  or  other  compensation," 
does  not  prevent  it  from  subsequently  im- 
posing a  license  tax  on  all  railroads  alike. 
Los  Angeles  v.  Southern  Pac.  R.  Co. ,  67  Cal. 
433.  7  -Z^*^-  li^P'  819.— Distinguishing  Los 
Angeles  v,  Los  Angeles  Water  Co.,  61  Cal. 
65. 

43.  Lynclibur{ir.— Section  5  of  the  city 
charter,  (granting  authority  to  impose  a  li- 
cense tax  upon  persons  engaged  in  certain 
enumerated  callings,  and  "  upon  any  other 
person  or  employment  which  it  may  deem 
proper,  whether  such  person  or  employment 
be  herein  specially  enumerated  or  not,"  does 
not  empower  the  city  to  impose  such  tax 
upon  a  railroad  corporation,  which  is  nei- 
ther a  person  nor  an  employment  within 
the  ordinary  acceptation  of  tliose  words. 
Lynchburg  v.  Norfolk  5-  W.  R.  Co.,  80  Va. 

■in- 

The  provisions  of  the  charter  empower- 
ing the  council,  when  water  mains  are  laid 
in  the  street,  to  levy  an  annual  special  as- 
sessment on  the  real  estate  on  both  sides  of 
such  street  to  meet  expenses  of  the  water 
works,  and  further  authorizing  it  to  exempt 
from  such"  assessment  any  property  to  which 
water  is  supplied  anc'  water  rates  charged, 
are  not  repugnant  to  the  state  constitution. 
Richmond &'  A.  R.  Co.  v.  Lynchburg,  81  Va. 

473 

44.  Macon.— The  Georgia  Southern  & 
Florida  R.  Co.  is  not  authorized  to  appro- 
priiite  streets  set  apart  for  public  use  by 
that  ci.iJse  in  its  charter  permitting  it  to 
build  a  railroad  from  Macon  to  Homwrsville, 
that  clause  only  conferring  the  privilege  of 
entering  the  city  by  condemning  its  right  of 
way  ;  nor  by  the  provisions  of  the  act  trans- 
ferring to  it  all  the  rights  and  privileges  of 
the  Central  Railroad  &  Banking  Co.;  under 
the  act  of  Feb.  11,  1850,  the  latter  company 
is  expressly  required  to  compensate  in  dam- 
ages the  owners  of  the  property  through 
u'liich  it  may  pass.  Daly  v.  Georgia  S.  <&>• 
/•".  A'.  Co.,  36  Am.  &*  Eit^.  R.  Cas.  20,  80  Ga. 
793,  7  S.  E.  Rep.  146. 

The  fee  to  the  streets  is  in  the  state,  and 
they  cannot  be  appropriated  to  the  use  of 
a  railroad  without  a  legislative  grant.  Daly 
v.  Georgia  S.  <&*  F.  R.  Co.,  36  Am.  &*  Eng. 
R.  Cas.  20,  80  Ga.  793,  7  S.  E.  Rep.  1 46. 

The  return  of  te  .  acres  of  land  formerly 
donated  by  the  corporation  to  the  railroad 
company  on  condition  that  large  encroach- 
ments upon  its  streets  shall  be  granted  is 


not  a  compliance  with  a  statute  requiring 
a  "  fair  and  reasonable  compensation  in 
money."  Daly  v,  Georgia  S.  &*  F.  R.  Co., 
36  Am.  &>  Eng.  R.  Cas.  20,  80  Ga.  793,  7 
S.  E.  Rep.  146. 

The  act  of  the  legislature  of  Dec.  17, 1888, 
authorizing  the  city  to  grant  to  the  railroad 
company  a  permanent  encroachment  on  Fifth 
street  of  eighty  feet  or  less,  adjoining  lots 
Nos.  I  and  8  in  block  57,  and  extending  from 
Plum  to  Pine  street  in  front  of  and  adjoin- 
ing lands  now  owned  by  the  railroad  com- 
pany on  Fifth  street,  was  not  intended  to 
authorize  the  closing  of  a  public  alley  run- 
ning between  lots  i  and  8  into  Fifth  street, 
nor  the  closing  of  Fifth  street  at  the  mouth 
of  me  alley.  Georgia  S.  &*  F.  R.  Co.  v. 
Harvey,  84  Ga.  372,  10  5.  E.  Rep.  971. 

46.  Memphis.  —  The  United  States 
ceded  to  the  mayor  and  aldermen  seventy- 
five  acres  of  land  lying  within  the  corpo- 
rate limits  for  the  benefit  of  the  city.  The 
mayor  and  aldermen  mortgaged  the  land  to 
aid  a  railroad,  one  of  whose  termini  was  on 
the  east  bank  of  the  Mississippi,  opposite 
the  city.  Held,  that  this  was  a  proper  cor- 
poration purpose,  and  for  the  benefit  of  the 
city.  Adams  v.  Memphis  &-  L.  R.  R.  Co., 
2  Coldw.  ( Tenn.)  645. 

40.  New  Albany.— The  city  having 
made  a  subscription  to  the  stock  of  a  rail- 
road company  and  issued  bonds  therefor, 
suit  was  brought  by  B.  and  T.,  individuals, 
against  the  city  and  the  railroad  company 
to  enjoin  the  collection  of  taxes  to  pay  the 
interest  on  the  bonds.  A  compromise  was 
agreed  upon  between  the  city  and  the  com- 
pany by  which  the  bonds  were  to  be  sur- 
rendered and  the  subscription  canceled  ;  in 
consideration  of  which  the  city,  by  ordi- 
nance, agreed,  among  other  thin<;s,  to  pay 
all  costs  of  the  suit,  and  also  the  fees  of  the 
attorneys  of  the  plaintiffs,  "  as  agreed  be- 
tween them  and  their  said  attorneys,  and 
said  city  and  attorneys  of  said  railroad  com- 
pany." Held,  that  the  ordinance  did  not 
bind  the  city  to  pay  the  fees  of  the  attor- 
neys of  the  railroad  company.  New  Albany 
V.  Smith,  16  Ind.  215. 

47.  New  Orleans.  —  A  compromise 
fairly  entered  into  between  the  city  author- 
ities and  a  railroad  company,  respecting  the 
right  to  use  certain  alluvion  in  front  of  tiie 
city  known  as  the  "  Batture,"  is  authorized 
by  tile  general  powers  conferred  upon  such 
authorities,  notwithstanding  La.  Act  of 
1880  creating  a  board  of  liquidation  of  the 


w 


MUNICIPAL  CORPORATIONS,  48-50. 


763 


debt  of  the  city.  Board  of  Liquidation  v. 
Louisville  &>  N.R.  Co..  109  U.  S.221,  zSup. 
a.  Rep.  144. 

The  civil  government  of  the  city  cannot 
be  permitted  10  deny  the  rights  derived  by 
the  relators  in  this  case  from  their  contract 
with  said  city  on  the  ground  that  it  was 
under  military  authority  at  the  time,  when, 
after  the  cessation  of  that  military  author- 
ity, those  rights  have  been,  in  part,  fre- 
quently recognized  and  ratified  by  its  ordi- 
nances. Tiiatcontiact  was  an  entirety.  The 
city  had  no  right  to  sever  its  obligations  so 
as  to  ratify  one  part  of  tiie  contract  and  re- 
ject another.  State  ex  rel.  v.  Cockrem,  25 
La.  Ann.  356, 

An  ordinance  of  the  city  enacted  before 
the  passage  of  Act  133  of  1888,  and  which 
becomes  a  part  of  a  contract  between  said 
city  and  a  railroad  corporation,  requiring 
notice  to  be  given  to  said  corporation  of 
certain  repairs  to  be  done  on  the  streets, 
must  be  complied  with  before  the  city  can 
invoke  the  remedy  by  mandamus  as  pro- 
vided in  said  Act  133  of  1888.  State  ex  rel. 
V.  New  Orleans  &•  C.  R.  Co.,  44  La.  Ann. 
1026,  1 1  So.  Rep.  "jog. 

48.  New  Roclielle. —  The  village  is 
not  a  necessary  party  to  a  proceeding  to 
foreclose  a  railroad  mortgage  because  it  has 
taken  a  bond  from  the  railroad  company, 
conditioned  that  it  shall  indemnify  the  vil- 
hige  against  all  damages,  as  a  condition  to 
consenting  to  the  construction  and  ope- 
ration of  the  road  in  the  village,  and  because 
it  has  already  commenced  suit  on  the  bond. 
The  village  is  only  a  general  creditor  of  the 
road,  and  cannot  be  made  a  party  under  N. 
Y.  Code,  §  452.  Farmers'  L.  &*  T.  Co.  v. 
Ne^v  Rochelle  &*  P.  R.  Co.,  32  A^.  Y.  S.  R. 
714,  57  Hun  376,  10  .V.  K  Supp.  810;  af- 
firntid  in  126  A^.  Y.  624,  mem.,  27  A^.  E. 
Rep.  410,  mem.,  36  A^.  Y.  S.  R.  1012. — Fol- 
lowing Herring  v.  New  York,  L.  E.  &  W. 
R.  Co.,  105  N.  Y.  340,  7  N.  Y.  S.  R.  547- 

49.  New  York. — The  fee  to  the  streets 
of  the  city  existing  at  the  time  that  the 
island  was  acquired  by  the  English  from  the 
Dutch  vested  in  the  city,  but  such  tenure 
is  not  absolute,  but  is  for  the  public  use  of 
the  inhabitants  of  the  island  ;  but  the  state 
so  far  lost  the  control  of  such  streets  as  to 
be  unable  to  authorize  their  use  for  railroad 
purposes  without  compensation  to  those 
who  maybe  iniured.  Carter  v.  Neru  York 
El.  R.  Co,\\  N.  Y.  S.  R.  859. 

The   legislature  has  the  right   to   make 


grants  of  railroad  privileges  and  franchises 
over  the  streets  and  avenues ;  and  when  the 
power  is  exercised,  it  is  superior  to  and  ex- 
clusive of  any  power  which  previously  re- 
sided in  the  local  authorities.  People  v. 
New  York  &*  H.  R.  Co.,  26  Hov-   Pr.  (N. 

y.)  44. 

The  city  has  no  right  to  grant  railroad 
privileges  or  establish  railroads  independ- 
ent of  legislative  action  and  approval. 
People  V.  New  York  6-  N.  R.  Co.,  26  How. 
Pr.  {N.  K)44- 

The  permission  which  was  given  to  the 
New  York  &  Harlem  R.  Co.  to  build  a  road 
in  the  city  and  to  lay  a  double  track  meant 
permission  to  lay  two  tracks  essentially 
upon  the  same  location,  and  not  two  essen- 
tially different  routes  through  different  av- 
enues or  streets,  especially  when  one  of  the 
roads  would  be  on  streets  and  avenues  ex- 
pressly reserved  by  the  legislature,  with  the 
right  to  grant  it  to  another  company.  Peo' 
pie  V.  New  York  &>  H.  R.  Co..  26  How  Pr. 
{N.  F.)44. 

By  N.  Y.  Act  of  April  6,  1832,  the  com- 
pany was  authorized  to  extend  its  road 
south  on  Fourth  avenue  to  Fourteenth 
street,  and  then  through  such  other  streets 
as  the  city  authorities  might  from  time  to 
time  permit.  Held,  that  this  power  was  not 
spent  by  a  single  grant  or  permission  to  ex- 
tend its  road,  but  might  be  repeatedly  ex- 
ercised according  to  the  public  needs.  And 
the  extension  authorized  by  the  act  of  1832 
was  to  be  longitudinal  in  a  southern  direc- 
tion, and  not  lateral,  but  not  necessarily  pur- 
suing the  precise  direction  that  the  existing 
portion  of  the  road  'id,  but  should  have 
the  s.me  general  direction,  and  not  a  direc- 
tion to  opposite  or  widely  divergent  points 
of  the  compass.  People  v.  Ne7u  York  &*  H, 
R.  Co.,  26  How.  Pr.  {N.  F.)  44. 

50.  Ottawa.  —  The  city  passed  reso- 
lutions providing  for  a  lease  of  right  of 
way  to  a  company  over  lands  expropri- 
ated by  the  city  for  waterworks  purposes, 
under  35  Vict.  c.  80  (O).  Held,  that, 
thouf^h  prima  facie  the  only  right  intended 
to  be  conferred  on  a  company  is  that  of  ex- 
propriating the  private  property  of  individ- 
uals or  corporations,  and  not  property  al- 
ready devoted  to  public  uses,  or  already 
expropriated  under  other  acts,  yet  under 
some  circumstances  the  right  to  make  such 
expropriation  might  exist,  and  if  so,  then 
the  city  would  have  the  cf)rresponding  power 
to  convey.     /«   re  Bronson,  i    Ont.   415. — 


ft 
I 


^r^ 


764 


MUNICIPAL  CORPORATIONS,  61-63. 


Criticising  North-Eastem  R.  Co.  v. 
Payne,  8  Rich.  (So.  Car.)  177.  Quoting 
Union  Pac.  R.  Co.  v.  Hall,  91  U.  S.  343. 
Reviewing  Morris  &  E.  R.  Co.  v.  Central 
R.  Co.,  31  N.  J.  L.  205;  In  re  Boston  &  A. 
R.  Co.,  53  N.  Y.  574,  5  Am.  Ry.  Rep.  92 ; 
Queen  v.  South  Wales  R.  Co.,  19  L.  J.  Q.  B. 
272. 

51.  Parkdale. — A  special  statute  in 
Ontario  (46  Vict.  c.  45)  authorized  the  mu- 
nicipalities of  the  city  of  Toronto  and  the 
village  of  Parkdale,  jointly  or  separately, 
and  the  railway  companies  whose  lines  of 
railway  ran  into  the  city  of  Toronto,  to 
agree  togetlier  for  the  construction  of  rail- 
way subways.  The  municipalities  not  be- 
ing able  to  agree,  Parkdale  and  the  railway 
coMi[)anies  entered  into  an  agreement  to 
have  a  subway  constructed  at  their  joint  ex- 
pense, but  under  the  direction  of  the  mu- 
nicipality and  its  engineer,  and  on  applica- 
tion to  the  privy  council  of  Canada,  pur- 
porting to  be  made  under  46  Vict.  c.  24(D), 
an  order  was  obtained  authorizing  the  work 
to  be  done  according  to  the  terms  of  such 
agreement.  The  municipality  of  Parkdale 
then  contracted  with  one  G.  for  the  con- 
struction of  the  subway,  and  a  by-law  pro- 
viding for  the  raising  of  Parkdale's  share  of 
the  cost  of  construction  was  submitted  to 
and  approved  of  by  the  ratepayers  of  that 
municipality.  In  an  action  by  the  owner 
of  property  injured  by  the  vf ork— held, 
that  the  work  was  not  done  under  the  spe- 
cial act,  nor  merely  as  agent  of  the  railway 
companies,  and  the  municipality  was  there- 
fore liable  as  a  wrong-doer.  IVest  v.  Park- 
dale,  12  Can.  Sup.  Ct.  250;  reversing  12  Ont. 
^pp.  393,  which  reverses  8  Ont.  59,  7  Ont. 
270. 

52.  Passaic— The  charter  of  the  village 
provided  for  the  assessment  of  the  cost  of 
grading  streets  upon  the  lands  fronting  upon 
theimprovement,in  proportion  to  the  benefit 
to  be  received  by  each  lot  or  parcel  thereof. 
Held,  that  the  legislature  intended  by  the 
language  "  in  proportion  to  the  benefit  to  be 
received  "  not  only  ratio  of  assessment,  but 
limitation  also,  and  by  implication  to  have 
limited  the  assessment  to  the  amount  of 
benefit.  It  is  a  necessary  implication  from 
the  language  of  the  provision  that  the  as- 
sessment must  be  confined  to  those  whose 
lands  are  benefited  by  the  improvement, 
because  the  ratio  is  based  on  the  benefit  re- 
ceived.   Passaic  v.  State  {^Delaware  L.  &* 


W.  A\  Co.  Pros.),  37  N./.  L.  538 ;  affirmitig 
37  N.  J.L.  137. 

It  is  essential  to  the  validity  of  an  assess- 
ment made  under  the  provisions  of  the  vil- 
lage charter  for  the  cost  of  grading  streets 
tliat  it  athrmatively  and  unequivocally  ap- 
pear that  the  assessment  does  not  exceed 
the  benefits.  Passaic  v.  State  (Delaware 
L.  &^  PV.  A'.  Co.  Pros.),  37  N./.  L.  538,  af- 
firming  yj  N.J.  L.  137. 

5JJ.  Pliiladelpliia.— The  city  has  not 
the  power  to  invest  its  stocks,  money,  or 
credit  directly  or  indirectly  in  aid  of  a  steam- 
sliip  line  between  the  city  and  foreign  ports 
without  the  authority  of  a  special  act  of 
assembly.  The  passage  of  an  ordinance 
authorizing  the  retention  of  a  part  of  the 
dividends  due  to  the  city  stock  of  the  Penn- 
sylvania R.  Co.  held  by  it  for  the  purpose 
of  aiding  in  the  establishment  of  an  ocean 
steamship  company  is  in  violation  of  the 
constitutional  amendment  of  1857,  and  void. 
Pennsylvania  R,  Co.  v.  Philadelphia,  47  Pa. 
St.  189. 

In  respect  to  the  care,  regulation,  and 
control  of  the  highways  within  its  corpo- 
rate limits,  the  city  exercises  a  portion  of 
the  power  of  the  commonwealth,  subject 
only  to  a  higher  control  of  the  state  and  the 
use  of  the  public,  and  therefore  a  written 
license,  granted  by  the  city  for  a  valuable 
consideration,  authorizing  the  holder  to 
connect  his  property  with  the  city  railroad 
by  a  turnout  and  track  is  not  such  a  con- 
tract as  will  prevent  the  city  from  abandon- 
ingor  removingsaid  railroad  whenever  in  the 
opinion  of  its  authorized  authorities  such 
action  will  tend  to  the  benefit  of  the  public. 
Branson  v.  Philadelphia,  47  Pa.  St.  329.-7- 
FoiLOWiNG  Southwark  R.  Co.  v.  Philadel- 
phia, 47  Pa.  St.  320;  Barter  v.  Com.,  3  P. 
&  VV.  (Pa.)  259;  Case  of  Philadelphia  &  T. 
R.  Co.,  6  Whart.  (Pa.)  25:  Susquehanna 
Canal  Co.  v.  Wright,  9  Watts  &  S.  (Pa.)  9; 
—  Followed  in  Philadelphia  z/.  Philadel- 
phia &  R.  R.  Co.,  58  Pa.  St.  253.    ' 

By  various  acts  of  assembly  the  city  was 
authorized  to  culvert  Cohocksink  creek  ;  by 
a  subsequent  act  the  North  Pa.  R.  Co.  was 
authorized  to  construct  a  railroad  from  any 
point  north  of  Vine  street,  etc.  Held,  that 
this  last  act  gave  no  exclusive  right  to  any 
street,  and  that  the  city  could  remove  com- 
plainant's railroad  in  order  to  build  the  cul- 
vert. North  Pa.  R.  Co.  v.  Stone,  3  Phila. 
(Pa.)  421. 


MUNICIPAL  CORPORATIONS,  54-66.— MUNICIPAL  GRANTS.  765 


w 


mtttg 


The  Fairmount  Park  commissioners  have 
the  power  to  use  the  name  of  the  city  in 
any  proceeding  at  law  or  in  equity  that 
may  be  necessary  to  carry  into  effect  the 
obj'.'cts  for  wiiich  they  are  created  ;  and 
tiierefore  they  may  use  the  name  of  the 
city  in  a  proceeding  to  prevent  a  railroad 
company  from  grading  or  interfering  with 
the  grounds  or  avenues  within  the  park,  or 
from  constructing  or  maintaining  a  railroad 
therein.  Philadelphin  v.  Germantown  Pass, 
K.  Co.,  lo  P/iila.  (Pa.)  165. 

34.  Savannah. — Under  the  charter  of 
the  city,  the  mayor  and  aldermen  have  no 
power  to  grant  to  a  railroad  company  the 
privilege  of  appropriating  a  portion  of  any 
street  from  end  to  end,  and  by  excavations 
and  embankments,  preclude  all  other  uses 
of  such  portion.  Savannah,  A.  &•  G.  R.  Co. 
V.  S/i/f/s,  33  Ga.  601. 

The  mayor  and  aldermen  of  the  city  have 
no  such  property  in  the  streets  and  squares 
of  the  city,  under  the  act  of  1760,  or  any  act 
amendatory  thereof,  as  entitles  them  to  pe- 
cuniary compensation  for  the  additional 
servitude  consisting  of  running  a  railroad 
thereon.  Savannah  &>  T.  P.  Co.  v.  Mayor, 
etc.,  of  Savannah,  45  Ga.  602,  3  Am.  Py. 
Pep.  36. 

55.  Schenectady.— N.  Y.  Act  of  1884, 
ch.  137,  authorized  the  council  of  the  city 
to  discontinue  a  portion  of  a  street  to  be 
used  as  a  site  for  a  railroad  depot.  By  tiie 
act  of  1884,  ch.  546,  §  2,  the  above  act  is 
amended,  and  it  is  provided  that  the  street 
shall  not  be  closed  without  compensation 
to  property  owners,  to  be  ascertained  as 
provided  in  the  city  charter.  Held,  that  it 
was  not  the  intention  of  the  legislatur'e  to 
make  the  charter  a  part  of  the  latter  act, 
and  it  was,  therefore,  not  unconstitutional 
for  failing  to  embrace  the  terms  of  the 
charter.  Weinckie  v.  New  York  C.  &*  H. 
P.  P.  Co.,  15  iV.  Y.  Supp.  689,  61  Hun  619, 
mem.,  39  A^.  Y,  S.  P.  584;  affirmed  in  133 
N,  Y.  656,  mem.,  31  A''.  E.  Pep.  625,  mem. 

Neither  is  the  act  of  1884  in  conflict  with 
the  state  Const,  art.  3,  §  18,  which  prohibits 
the  legislature  from  passing  any  local  act 
"discontinuing  any  road,  highway,  or  alley." 
VVeinckie  v.  New  York  C.  &>  H.  P.  R.  Co., 
\^  N.  Y.  Supp.  689,61  Hun  619,  mem.,  y)N. 
Y.  S.  P.  584;  affirmed  in  133  N.  Y.  656, 
mem.,  31  A^.  E.  Pep,  625,  mem. 

Neither  is  the  above  act  in  conflict  with 
that  provision  of  the  state  constitution 
which  prohibits  local  acts  granting  any  cor- 


poration the  right  to  lay  down  tracks,  or 
granting  to  any  private  corporation  an  ex- 
clusive privilege,  immunity,  or  francliise. 
Weinckie  v.  New  York  C.  &'  H.  P.  P.  Co., 
15  N.  Y.  Supp.  689,  61  Hun  619,  tnem.,  39 
N.  Y.  S.  P.  584;  affirmed  in  133  ^V.  Y,  656, 
mem.,  31  ^V.  E.  Pep.  625,  metn. 

The  provision  in  such  statute  authorizing 
the  council  to  close  a  portion  of  a  street 
to  the  passage  of  "  vehicles,  horses,  and  cat- 
tle "  is  sufficient  to  authorize  it  to  empower 
the  company  to  close  the  surface  of  the 
street  entirely  by  a  fence,  after  providing  a 
foot  bridge  for  persons  walking.  U^einckie 
V.  New  York  C.  &-  H.  P.  P.  Co.,  15  A^.  Y, 
Supp,  689,  61  Hun  6ig;mem.,  39  A^.  Y.  S.P. 
584 ;  affirmed  in  133  A''.  Y.  656,  mem.,  31  N. 
E.  Pep.  625,  mem. 

In  such  case  it  is  immaterial  that  the  de- 
pot proper  was  not  placed  on  the  discontin- 
ued portion  of  the  street,  where  it  appears 
that  it  is  needed  for  depot  purposes,  and  a 
portion  of  the  depot  sheds  extends  over  it. 
Weinckie  v.  Ne'M  York  C.  &•  H.  P.  P.  Co., 
15  A^.  Y.  Supp.  689,  61  Hun  619,  mem.,  39  N. 
Y.  S.  P.  5S4;  affirmed  in  133  A^.  Y.  656, 
mem.,  31  N.  E.  Pep.  625,  mem. 

An  ordinance  of  said  city  confirming  a 
report  of  commissioners  awarding  damages 
to  property  owners  for  closing  such  street 
is  sufficient,  under  1  N.  Y.  Rev.  St.  p. 
555.  §  27,  when  passed  by  a  majority  vote. 
Weinckie  v.  New  York  C,  &>.  H.  P.  P.  Co., 
15  M  Y.  Supp.  689, 61  Hun  619,  mem.,  39  N. 
Y.  S.  P.  584;  affirmed  in  133  A^.  Y.  656, 
mem.,  31  A^.  E.  Pep.  625,  mem. 

56.  Seattle. — Where  the  city  has  laid 
out  a  street  over  tide  land,  and  granted  a 
railway  company  the  right  to  lay  tracks 
thereon  by  virtue  of  provisions  contained 
in  the  charter  conferred  upon  the  city  by 
the  territorial  legislature,  and  its  acts  in 
exercising  such  power  have  been  subse- 
sequently  confirmed  by  the  provision  of  the 
state  constitution  authorizing  cities  to  ex- 
tend their  streets  over  tide  lands,  the  city 
is  estopped  to  dispute  the  validity  of  the 
franchise  granted  the  railway  company  on 
the  ground  of  want  of  authority  in  the 
city.  Seattle  v.  Columbia  &*  P.  S.  P.  Co.,  6 
Wash.  379,  33  Pac.  Pep.  1048. 


MUNICIPAL  GRANTS. 

Right  to  construct  and  operate  street  rail- 
way under,  see  Street  Railways,  16-57* 


766 


MURDER— NAME   OF   RAILROAD,  1. 


MURDER. 
Prosecutions  for,  see  Criminal  Law,  30> 

MUTUALITY. 

Of  contracts,  see  Contracts,  10 ;  Specific 
Performance,  4. 


—  matters  sought  to  be  offset,  see  Set-off, 

ETC.,  2. 


MUTUAL  NEGLIGENCE. 
Rule  as  to,  see    Contributory  Negligence, 
6-8. 


N 


NAME  OF  RAILROAD. 

Change  in,  when  releases  subscriber  to  stock, 
see  SuBSCRii'TiONS  to  Stock.  1123. 

Of  road  aided,  effect  of  change  of,  see  Mu- 
nicipal AND  Local  Aid,  ti05. 

1.  Chaiigro  of  name.*— A  change  in 
the  name  of  a  corporacion  can  only  be  ef- 
fected by  changing  the  articles  of  incorpora- 
tion, and  the  best  evidence  of  this  change 
is  the  articles  themselves.  Chicago,  D.  &* 
M.  R.  Co.  V.  Keisel,  43  Iowa  39. 

Where  the  name  of  a  corporation  has 
been  changed  by  an  amendatory  act,  and 
suit  is  brought  by  it  in  its  hrst  name,  it  is 
not  necessary  that  the  corporation  should 
show  that  the  amendatory  act  has  been  re- 
jected by  its  stockholders.  Beene  v.  Ca- 
haivba  &^  M.  li.  Co.,  3  Ala.  660. 

A  finding  that  a  resolution  for  the  change 
of  name  of  a  railway  company  was  adopted 
by  a  two-thirds  vote  of  the  stockholders, 
and  that  the  required  certificates  of  the 
change  were  filed  in  the  proper  offices,  will 
be  sufficient  to  show  a  prima  facie  com- 
pliance with  the  statute.  Illinois  Midland 
R.  Co.  v.  Barnett  Sufi'rs,  85  ///.  313. 

Minn.  Special  Act  of  1867,  ch.  i,  permit- 
ting the  St.  Paul  &  Pacific  R.  Co.  to  change 
its  name,  and  that  of  any  of  its  branches  or 
divisions  of  the  road,  did  not  authorize  it  to 
create  a  separate  corporation  of  any  of  its 
branches,  and  suits  thereafter  must  be  in 
the  name  of  the  company,  and  not  of  any 
of  the  branches.  Morris  v.  St.  Paul  <&*  C. 
A'.  Co.,  i^  Minn.  528  (Gil.  459),  10  Am.  Ry. 
Rep.  289. 

It  is  only  where  the  court  is  satisfied  that 
there  is  no  reasonable  objection  to  a  pro- 
posed change  in  a  corporate  name  that  it  is 
empowered  to  make  an  order  authorizing 
the  alteration,  under  N.  Y.  Act  of  1870,  ch. 

*  Consolidation,  change  of  name,  etc.,  as  af- 
fecting power  of  municipal  corporations  to  issue 
bonds  in  aid  of  railroads,  see  note,  5  L.  R.  A. 
718. 


322;  and  where  there  is  a  strongly  indicated 
intent  to  imitate  the  name  of  an  existing 
corporation  as  closely  as  might  be  without 
actually  appropriating  it,  the  application 
will  be  denied.  In  re  United  States  M.  R. 
&'  C.  Assoc,  22  N.  V.  S.  R.  494,  52  Nun  61 1, 
mem.;  appeal  dismissed  in  115  A^.  V.  176,  21 
JV.  E.  Rep.  1034,  24  A^.  F.  5.  R.  548. 

While  a  corporation  lias  probably  no  right 
to  change  its  name  without  legislative  au- 
thority, it  seems  that  by  doing  so,  and  doing 
business  under  the  new  name,  it  does  not 
forfeit  its  franchises  or  the  title  to  its  prop- 
erty. Com.  v.  Pennsylvania  &•  W,  R.  Co., 
17  Phila.(Pa.)  609. 

A  court  of  equity  may,  upon  objection 
made  to  the  organization  of  a  corporation 
by  a  specific  name  on  the  ground  that  an- 
other corporation  has  already  adopted  the 
proposed  name  or  one  so  near  like  it  as  to 
lead  to  confusion,  require  a  sufficient  modi- 
fication of  the  name  to  obviate  objection. 
Ex  parte  IValker,  1  Tenn.  Ch.  97. 

Where  the  name  of  a  railway  is  changed 
pending  an  action  against  it,  and  a  motion 
is  afterwards  made,  a  suggestion  should  be 
entered  of  the  change  of  name  and  the  affi- 
davits entitled  in  the  new  name.  Hibble- 
thwaite  v.  Leeds  &*  T.  R.  Co.,  15  Jur.  1015, 
ix  L.J.  Ex.  yj. 

A  deed  to  defendant  company  described 
it  by  its  original  name,  ^.-hen  in  fact  its 
name  had  then  been  changed.  Held,  a 
sufficient  descriptio  persona  to  enable  the 
company  to  take,  though  it  might  not  be 
sufficient  to  sue  in.  Grand  /unction  R.  Co. 
V.  Midland  R.  Co.,  7  Ont.  App.  681. 

An  incorporated  railroad  company  has  no 
power  to  change  its  name  without  authority 
of  the  legislature.  Where  property  is  con- 
veyed to  a  company  under  the  name  by 
which  it  is  afterwards  incorporated,  but 
which  had  no  legal  existence  at  the  time, 
nothing  passes  by  the  conveyance.  Lloyd  v. 
European  &■*  N.  A.  R.  Co.,  18  New  Brun. 
194- 


NAME   OF   RAILROAD,  2, 3. 


I*' I*  *< 


By  Colorado  Act  of  Feb.  5,  1866,  certain 
persons  were  incorporated  as  the  "  Holladay 
Overland  Mail  and  Express  Company," 
with  the  privilege  and  power  of  changing 
its  name  by  "order"  of  its  directors  "ap- 
proved "  by  the  stockholders.  The  bill  al- 
leged that  the  stockholders,  in  pursuance  of 
said  act,  duly  clianged  the  name  of  the  cor- 
poration to  "Wells,  Fargo  &  Co.,"  which 
change  was  approved  by  the  legislature  by 
the  act  of  January  26,  1872.  J^dM:  (i)  that, 
until  the  contrary  appears,  it  should  be 
presumed  that  the  final  action  of  the  stock- 
holders was  had  in  pursuance  of  the  orders 
of  the  directors;  (2)  that  the  essential  act 
ill  the  proceeding  was  the  vote  of  the  stock- 
holders, to  which  the  order  of  the  board 
was  only  preliminary,  and  Uiercfore  that 
portion  of  the  act  providing  for  such  order 
ought  to  be  considered  merely  directory; 
(3)  that  the  act  of  1872  approving  the 
change  is  not  in  conflict  with  Rev.  St.  § 
1889,  forbidding  the  legislature  from  grant- 
ing "  private  charters  or  especial  priv- 
ileges." IVe//s  v.  Oreiron  K.  &*  N.  Co.,  8 
Sawy.  (U.  S.)  600,  15  Fed.  Rep.  561.— DIS- 
TINGUISHING Newby  v.  Oregon  C.  R.  Co., 
Deady  (U.  S.)  609.— Followed  in  Ex  parte 
Koehler,  21  Am.  &  Eng.  R.  Cas.  52,  23  Fed. 
Rep.  529. 

Wis.  Act  of  1874,  ch.  273,  classifying  rail- 
roads, placed  a  road  in  a  certain  class,  and 
referred  to  it  as  the  "  Milwaukee  &  St.  Paul 
Railway  Company."  The  same  year  a  gen- 
eral statute  was  passed  providing  for  changes 
of  corporate  names,  and  the  name  of  the 
company  was  changed  to  Chicago,  Milwau- 
kee &  St.  Paul  railway  company,  and  no 
other  company  of  the  first  name  had  ever 
been  chartered  in  the  state.  Held,  tliat  the 
provisions  of  the  first  act  so  far  as  they  re- 
late to  the  company  must  be  regarded  as 
referring  to  the  company  underthe  changed 
name.  Attorney-General  v.  Chicago  &*  N. 
W.  R.  Co.,  35  Wis.  425. 

2.  Misnomer,  and  its  effect. — Where 
a  corporate  name  consists  of  several  words, 
a  mere  transposition  of  the  words  in  con- 
tracting with  it  is  unimportant  so  long  as 
there  is  no  doubt  what  corporation  is  meant. 
So  held,  where  a  note  was  payable  to  the 
Rock  Island  &  Alton  railroad  company, 
when  the  true  name  of  the  company  was 
Alton  &  Rock  Island  railroad  company. 
Chadsey  y.  McCreery,  27  ///.  253. 

Where  a  contract  is  made  with  a  corpora- 
tion about  the  time  its  name  is  changed, 


but  the  contract  uses  the  old  name,  an  as- 
signee may  sue  thereon  where  the  complaint 
avers  that  the  name  of  the  corporation  was 
changed  from  the  one  used  in  the  contract 
to  the  name  by  which  the  company  is  sued 
about  the  time  of  making  the  contract. 
Racine  County  Bank  v.  Ayres,  1 2  Wis.  5 1 2. 

An  act  creating  a  railroad  company  styled 
it  "  The  Wabash  Railroad  Company,"  but 
the  secretary  of  state,  in  preparing  the  act 
for  publication,  in  the  title  of  the  act  styled 
the  company  "  The  Wabash  Valley  Railroad 
Company."  Held,  that  the  insertion  of  the 
word  "  valley  '  did  not  affect  the  legal  name 
of  the  corporation.  Peake  v.  Wabash  R. 
Co.,  18  ///.  88. 

Upon  an  application  by  the  purchaser  of 
stock  at  a  sheriff's  sale  for  mandamus  to 
compel  a  railway  company  to  register  a 
transfer  of  stock  in  the  company,  it  appeared 
that  the  stock  had  been  sold  under  an  exe- 
cution against  "  the  mayor,  aldermen,  and 
commonalty  of  the  city  of  Ottawa,"  and 
by  U.  C.  .Con.  St.  c.  54.  the  name  of  the 
corporation  was  changed  to  "  the  corpora- 
tion of  the  city  of  Ottawa."  Held,  that  the 
writ  properly  followed  the  judgment  as  re- 
covered, and  was  sufficient,  the  corporation 
being  formerly  known  by  the  name  therein 
given.  Goodwin  v.  Ottawa  &•  P.  R,  Co.,  13 
U.  C.  C.  P.  254. 

3.  How  luisuomers  luiist  be  plead- 
ed.— Misnomer  of  a  plaintiff  corporation 
can  be  taken  advantage  of  only  by  a  plea  in 
abatement,  and  will  be  considered  waived 
by  a  plea  to  the  merits.  Baltimore  &*  P.  R, 
Co.  v.  Fifth  Baptist  Church,  137  U.  S.  568, 
II  Sup.  Ct.  Rep.  1 85. 

When  sued  by  the  wrong  name,  the  de- 
fendant must  disclose  his  true  name  in 
making  objection  to  the  misnomer  by  plea 
in  the  nature  of  a  plea  in  abatement  or 
otherwise.  If  the  plea,  answer,  or  objection 
to  the  misnomer  does  not  disclose  the  true 
name,  and  judgment  is  rendered  against 
the  defendant  in  the  name  in  which  he  was 
sued  for  the  want  of  a  sufiicien:  answer,  the 
judgment  will  not  be  reversed  because  of 
the  alleged  misnomer.  Louisville  &•  N.  R. 
Co.  V.  Hall,  12  Bush  (Ay.)  131. — Quoted  in 
Heckman  v.  Louisville  &  N.  R.  Co.,  85  Ky. 
631. 

A  corporation  may  be  known  by  several 
names,  and  can  only  take  advantage  of  a 
misnomer  by  a  pica  in  abatement,  and  no 
defense  on  this  ground  is  admissible  after  a 
step  in  the  cause  recognizing  the  identity  of 


I 


^1 


768 


NAME   OF   RAILROAD,  4.— NAVIGABLE   WATERS. 


:,n 


the  corpoFfition  sued  with  the  corporation 
defending.  Loiiisvilk,  N,  &^  G,  S.  A'.  Co.  v. 
KiidmonU,  i^  A>/t.  &^  ting.  R.  Las.  515,  11 
Lfti  (TiHit.)  205. — Applying  East  Tenn.  & 
G.  R.  Co.  7'.  Evans,  6  Heisk.  (Tenn.)  607, 

4.  Curing  iiiisiionierH  by  aiiieiid- 
inuiit.  —  VVhere  a  corporation  has  been 
brought  into  court  under  a  wrong  name,  the 
court  has  power  to  amend  the  process  by 
striking  out  that  name  and  inserting  the 
rijj;ht  one.  Lane  v.  Seaboard  <S^  K,  R,  Co.,  5 
JoHcs  (N.  Car.)  25. 

In  an  action  against  a  railroad  company, 
tlic  summons  and  complaint  maybe  amend- 
ed by  substituting  the  word  "railway"  for 
"  railroad  "  as  a  part  of  the  defendant's 
corporate  name.  Georgia  Pac.  R.  Co.  v. 
J'ropst,  83  ,Ua.  518,  ■i'so.  Rep.  764.  East 
Tenn.,  V.  &•  G.  R.  Co.  v.  Mahoney,  89  Tenn. 
311.  15  S.  W.  Rep.  652.  Parks  v.  West 
Side R.  Co.,  50  Am.  &*  Eiig.  R.  Cas.  616,  82 
Wis.  219,  52  N.  W.  Rep.  92. 

VVhere,  in  an  action  against  a  railroad 
corporation,  the  plaintiff  in  his  narr.,  through 
an  inadvertence  caused  by  a  change  in  the 
name  of  the  corporation,  makes  an  error,  the 
court  may  permit  an  amendment  after  ver- 
dict so  as  to  make  the  narr.  conform  to  the 
true  name  of  the  corporation.  Pittsburgh, 
B.  <S-  W.  R.  Co.  V.  Rohrnian,  {Pa.)  12  Am. 
&-  Eng.  R.  Cas.  1 76. 

In  an  action  against  a  railroad  corpora- 
tion described  in  the  original  summons  and 
complaint  as  the  "Atlanta  &  West  Point 
Railroad  and  Western  Railway  of  Alabama 
Company,  a  foreign  corporation  incorpo- 
rated under  the  laws  of  Georgia,"  an  amend- 
ment cannot  be  allowed  (Code,  §  2833) 
changing  the  name  to  the  "Western  Rail- 
way of  Alabama  Company,  a  corporation  in- 
corporated under  the  laws  of  Alabama." 
Western  R.  Co.  v.  McCall,  89  Ala.  375,  7 
So.  Rep.  650. 

Where  suit  is  brought  against  "  the  Cen- 
tral Railroad  and  Banking  Company,"  and  a 
motion  is  made  to  dismiss  on  the  ground 
that  there  is'  no  such  corporation,  an 
amendment  adding  the  words  "  of  Georgia" 
to  the  name  of  the  defendant  should  be  al- 
lowed.   Johnson  v.  Central  R.  Co.,  74  Ga. 

397- 

Amendment  of  a  declaration  against  the 
Chattanooga,  Rome  &  CarroUton  railroad 
company  by  substituting  "  Columbus  "  for 
"  Carrolkon,"  so  as  to  give  the  defendant  its 
proper  corporate  name,  is  not  adding  a  new 
party,  but  simply  correcting  a   misnomer. 


Chattanooga,  R.  <S>«  C.  R.  Co.  v.  Jackson,  86 
Ga.  676,  \iS.E.  Rep.  109. 

After  the  allowance  of  the  amendment  it 
is  not  error  to  require  the  defendant  to  go 
to  trial,  its  counsel  not  stating  that  they 
were  less  prepared  for  trial,  nor  giving  any 
reason  why  the  trial  should  not  proceed  ex- 
cept that  a  new  party  had  been  entered  as  to 
which  this  was  the  appearance  term,  and  it 
appearing  from  the  record  that  defendant's 
counsel  recognized  that  the  true  defendant 
had  been  sued  and  served  by  acknowledging 
service  on  its  behalf  and  filing  pleas  of 
abatement  in  its  name.  Chattanooga,  R. 
&*  C.  R.  Co.  \.  Jackson,  86  Ga.  676,  13  S.  K. 
Rep.  109. 

Where  a  suit  is  brought  against  the  "  Mer- 
chants' Despatch  Company,"  and  afterwards 
it  is  amended  by  leave  so  as  to  style  de- 
fendants the  "  Merchants'  Despatch  Trans- 
portation Company,"  it  is  no  ground  for  ex- 
clusion of  a  deposition  taken  before  the 
amendment.  Merchants'  Despai'h  Transp, 
Co,  V.  Leysor,  89  ///.  43. 

A  company  was  sued  as  "  The  West  Side 
Railroad  Company,"  and  after  judgment 
and  execution  returned  unsatisfied  it  was 
within  the  power  of  the  court  to  allow  the 
papers  in  the  suit  from  the  summons  to  the 
execution  to  be  amended  so  as  to  make  the 
corporate  name"  The  West  Side  &  Yonkers 
Railroad  Company."  Tasker  \.  Wallace,  6 
Daly^N.  Y.)i<a\. 

But  where  the  sheriff  simply  returns  t' e 
execution  indorsed  "  no  property  found," 
it  is  not  necessary  to  amend  the  return  by 
showing  that  the  execution  was  against  the 
company  under  the  amended  name.  Tasker 
V.  Wallace,  6  Daly  (A'.  1'.)  364. 


NAMES. 
Of  beneficiaries  alleging  in   complaint,    see 
Death  «v  Wkongfui.  Act,  l^iO. 

—  parties  in  process,  see  Process,  4-6. 

—  passengers,  failure  to  sign  on  ticket,  see 

Ejection  of  Passengers,  37. 
Removal  of,  from  list  of  shareholders,   see 

Stock,  85. 
Right  of  receiver  to  sue  in  his  own  name,  see 

Receivers,  118. 


NAVIGABLE  WATERS. 

Bridges  over,  see  Bridges,  etc.,  59-88. 

Crossing  over,  under  charter  provisions,  see 
Charters,  GO. 

Loss  of  access  to,  as  the  measure  of  dam- 
ages, see  Eminent  Domain,  124'J. 


NAVIGATION— NEGLIGENCE. 


76d 


Title  to  Led  of  navigable  stream,  see  Ripa- 
rian RiniiTs,  il. 
See  Waters  and  Watercourses,  1-8. 


NAVIGATION. 

Action  for  damages  for  obstruction  of,  see 
Eminent  Domain,  nU4. 

Liability  for  obstructing,  in  construction  of 
roads,  sec  Cons  i  ruction  ok  Railways,  8. 

Obstruction  of,  by  bridges,  see  Bridges,  etc., 
82-88. 

—  to,  as  an  element  of  land  damages,  see 
Eminent  Domain.  715. 

when  deemed  a  nuisance,  see  nui- 
sance, 1 1 . 

Prosecutions  for  obstructing,  see  Criminal 
Law,  3;f. 

Remedies  for  obstruction  of,  see  Riparian 
Rights,  », 

Validity  of  state  laws  regulating,  see  Com- 
merce, O,  10. 


NEBRASKA. 
Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 371. 

Constitutionality  of  statutes  of,  as  to  mu- 
nicipal aid  for  railways,  see  Municipal 
AND  Local  Aid,  41. 

tax  laws  of,  see  Taxation,  37. 

Constitutional  provisions  in,  relative  to  con- 
demnation of  land,  see  Eminent  Domain, 
15. 

Deductions  for  benefits  under  condemnation 
laws  of,  see  Eminent  D(jmain,  743. 

Duty  to  locate  station  under  statutes  of,  see 
Stations  and  Depots,  lO. 

Grants  by,  to  railroads,  see  Land  Grants, 
122. 

Jurisdiction  of  district  court  in,  see  Juris- 
diction, 18. 

Mechanics'  lien  law  of.  see  Liens,  1 1. 

Statutes  of,  relative  to  distribution  of  dam- 
ages for  causing  death,  see  Death  by 
Wrongful  Act,  63. 

—r  intersection    of    railways,    see 

Crossing  of  Railroads,  12. 

Statutory  duty  of  company  in  construction 
of  street  crossing  railway,  see  Crossing 
OF  Streets  and  Highways.  02. 

to  fence  in,  see  Fences,  30. 

—  regulation  of  grade  crossings  in,  see 
Crossing  OF  Streets  and  Highways,  89. 

Taxation  in  aid  of  railways  in,  see  Munici- 
pal AND  Local  Aid,  419. 

—  of  land  grants  in,  see  Taxation,  121. 


'   NECESSITY. 
Condemnation  of  railway  property  must  be 
founded  on,  see  Eminent  Domain,  1 10, 
111. 

6  D.  R.  D.— 49 


For  condemnation  of  franchises,  see  Eminent 
Domain.  103. 

—  corroboration  of  witnesses,  see  Witnesses, 

43. 
Of  assessment  or  call  on  stock,  see  SuBsit)  - 
TioNs  TO  Stock,  45,  40. 

—  bond  or  undertaking  on  appeal,  see  E.mi- 

NENr  Domain,  941. 

—  condemnation  proceedings  to  acquire  right 

to  use  streets,  see  Sirekts  and    High- 
ways, lOO,  107,  111. 

—  describing  property   sought  to    be    con- 

demned, see  Eminent  Domain,  314. 

—  effort  to  agree  with  landowner,  sec  Emi- 

nent DoMAiij,  274-270. 

—  exercise  of  right  of  eminent  domain,  sec 

Eminent  Domain,   3,  01,   ,321,  340, 
300,  554,  791,  820,   1089. 

—  instructions  to  jury  on    assessment    of 

land  damages,    see    Eminent    Domain, 
577. 

—  making    or    securing    compensation    for 

lands  condemned,  see  Eminent  Domain, 
371-423. 

—  motion  for  new  trial  in  court  below,  see 

E.minent  Domain,  918. 

—  municipal  consent  to  occupation  of  street 

by  steam  roads,  see  Streets  and  High- 
ways, 01-08. 

—  notice  of  appeal  in  condemnation  proceed- 

ings, see  Eminent  Domain,  938. 

—  objections  on  trial,  see  Trial,  52. 

—  payment,  to  the  passing  of  title  for  lands 

condemned,  see  Eminent  Domain,  852. 

—  pleading  in  condemnation  proceedings,  $ee 

Eminent    Domain,   305,    306,    350- 
352. 

—  prayer  for  instructions,  see  Eminent  Do- 

main, 917;  Negligence,  112;  Trial, 

159. 
Receivers'  certificates  should  be  issued  only 

in  cases  of,  see  Receivers.  98. 
Ways  of,  see  Private  Ways,  3. 


NEGATIVE  EVIDENCE. 

Competency  of,  see  Evidence,  50. 

In  stock  killing  cases,  see  Animals,  Injuries 
to,  406. 

Questions  to  witness  calling  for,  see  Wit- 
nesses. 59. 

Weight  and  sufficiency  of,  see  Evidence, 
290-299. 


NEGLIGENCE. 

As  a  defense  to  action  on  insurance  policy, 
see  Accident  Insurance,  9-12. 

—  towards  trespassers,  what  amounts  tOr 
see  Trespassers,  Injuries  to,  31. 


1 


.iM:., 


w 


'i 


770 


NEGLIGENCE. 


n       ^ 


lii 


1:1 


At  crossings,  how  pleaded,  se^  Crossings, 

I.NJIRIKS,  KTC,  AT,  ;i:i4,  33iV 

Averment  of,  in  actions  agaJnst  carriers,  see 

Cakkiac.kok  Mkrchandise,  725. 
Burden  ot  proof  as  to,  see  Limitation  op  Lia- 

HII.II  Y,  40. 

to  disprove,  when  on  carrier,  see 

Cakriackok  Mkrchanuisk,  IRH;  Death 
BY  Wroni.kui,  Act,  23«;  Fires,  288, 
280. 

when  on  plaintiff  to  prove,  see  Car- 

RiAUK  ()i°  Mkrchandise,  1o2. 

Causing  loss  by  fire,  liability  of  company 
for,  see  Fires.  lO-lOl. 

Evidence  under  the  pleadings  in  actions  for, 
see  I'i.eadinc,  107-112. 

Exemplary  damages  in  cases  of,  see  Dam- 
AOKs,  27,  28. 

Facts  constituting,  must  be  set  out  in  com- 
plaint,   see    Death    by   Wronckui.  Act, 

i:$8,  i.3». 

Failure  of  traveler  at  crossing  to  look  and 
•     listen,  see  Crossings,  Injuries,  etc.,  at, 
250-253. 

—  to  adopt  rules,  when  deemed  to  be,  see  Em- 

N.OVKS,  Injuries  to.  20-22. 

block  frogs,  when  deemed  to  be,  see 

Emi'i.oyes,  Injuries  to,  05,  06. 

give  signals  is,  see  Crossings,  Injuries, 

ETC.,  AT.  1,')0-13J3. 

How  alleged  in  action  against  carrier  of  pas- 
sengers, see  Carriage  of  Passengers, 
S42,  544-540. 

In  destruction  of  property  by  iire,  presump- 
tive evidence  of,  see  Fires,  201-270. 

—  expelling    passenger    from    train,    how 

pleaded,  see  Ejection  of  Passengers,  87. 

—  retaining  incompetent  servant,  burden  of 

proof  to  show,  see  Feli.ow-servants, 
493. 

—  selection  of   servants,   allegation  of,  see 

Fellow-servants,  454. 

—  setting  fire,  weight  of  evidence  to  show, 

see  Fires,  24O-250. 

—  starting  train,  competency  of  evidence  of, 

see  Evidence,  05. 

—  unloading,  liability  of  consignee  for,  see 

Carriage  ok  Merchandise,  245. 
Injuries  at  station  caused  by,  see  Stations 
AND  Depot»,  58-145. 

—  caused  by,  in  streets  and  highways,  liabil- 

ity   for,    see     Streets   and    Highways, 
360-402. 
liability  of  tramways  for,  see  Tram- 
ways, 6. 

—  to  passengers  on  cable  cars  caused  by, 

see  Cable  Railways,  8-13. 
Instructions  a*  to  the  different  degrees  of, 
see  Death  by  Wrongful  Act,  31o. 

—  OB  questions  of,  see  Trial,  123-129, 

148-154. 


Liability  of  agent  to  principal  for,  see 
AcKvcv   31. 

I  lectric  railway  for  injuries  caused  ty, 

sfc  I'j.i-.i  iRjc  Railways,  H>-38. 

mine  owner  for  personal  injuries  caused 

by,  see  Mines,  etc.,  11. 

principal  for  negligent  acts  of  agent, 

see  Agency,  83-85. 

receiver  for,  see  Receivers,  69. 

street-car  company  for  injuries  caused 

by,  see  Street  Railways,  31i)-531. 

warehousemen    for,  see    Carriage    ok 

Merchandise,  328. 

Limitation  of  liability  for,  see  Bills  ok  Lad- 
ing, 62-72;  Carriage  OF  Live  Stock, 
65,  67,  72-79?  Carriage  ok  Mer- 
chandise, 458—2^84;  Carriage  ok  Pas- 
sengers, 333,  334;  Employes,  In- 
juries TO,  179-181. 

Limiting  liability  for,  as  respects  baggage, 
see  Kaggage,  101. 

Loss  by  fire,  when  raises  a  presumption  of, 
see  Carriage  ok  Merchandise.  151. 

Necessity  of  proof  of.  in  stock  killing  cases, 
see  Animals.   Injuries  to,  29-32. 

Obeying  order  of  superior,  when  constitutes, 
see  Empi.oyks,  Injuries  to,  434-437. 

Of  another  company  as  a  defense,  see  Fires, 
196. 

—  auxiliary  companies,  who  liable  for,  see 

Auxiliary  Companies,  1. 

—  car  company,  lie.bility  of  railroad  company 

for,  see  Sleeping,  etc..  Companies,  37. 

—  carrier  as  regards  duty  to  passenger,  see  ^^ 

Street  Railways.  338-372. 

of  cattle,  presumption  of,  see  Carriage 

OF  Live  Stock,  147. 

live   stock,    see  Carriage  ok  Live 

Stock,  39,  44. 

passengers,  see  Carriage  of  Pas- 
sengers, 126-341. 

passengers,    burden   of    proof    to 

show,  see  Carriage  ok  Passengers, 
592. 

sufficiency  of  evidence  to  show,   see 

Carriage  ok  Merchandise,  756 ;  Car- 
riage OF  Passengers,  572,  574. 

—  company,    admissibility    of   evidence    to 

show,  see  Fires,  203-207. 

allegation  of,   in  action    for   injuries 

caused  by  fire,  see  Fires.  176-189. 

—  suit  for    injury  to   employe, 

see  Employes,  Injuries  to,  517-538. 

as  to  speed  near  crossings,  see  Cross- 
ings. Injuries,  etc.,  at.  187-189. 

—  —  at    crossing,   evidence    to  show,   see 

Crossings,     Injuries,    etc.,   at,    342- 

349. 
burden  on  plaintiff  to  show,  see  Fires, 

280-280. 
contributory  negligence  where  peail  is 


F 


NEGLIGENCE. 


771 


occasioned  by,  see  Emplovks,   Injukiks 

T(j,  :i3'2-ii'.iii.- 

Of  company  does  not  excuse  contributory 
negligence  of  person  injured,  sec  Ckoss- 
iN(i.s,  Inji'riks,  etc.,  at,  321. 

duty  to  look  and  listen  as  affected  by, 

see  Crossinc.s,  Injukies,  ktc,  ap,  2413.* 

evidence  to  disprove,  see  Fikes,  !22Si- 

in  management  of  turntables,  evidence 

of,  see  CuiLDRKN,  Injuries  io,  iW-tili, 
selecting  fellow-servants  of  employe 

injured,    see    Fellow -servan is,     lliii- 

1U2,487. 
instrictions    relative    to,    see    Fires, 

204-302. 
questions  as  to,  when  for  the  jury,  see 

Emi'loyks,    Injuries    to,    UUO-703; 

Fellow  -  servants,   507-rtlO;    Fikes, 

313-;J2.3. 
sufficiency  of  evidence  of,  see  Animals, 

Injuries  ti>,  447-4U8;   Employes,  In- 
juries TO,  361-571,  004-017. 
towards  employes,  as  the  proximate 

cause  of  injury,  see  Employes,  Injuries 

TO.  15-17. 
when  presumed  in  actions  for  injury 

to  employe,  see  Employes,  Injuries  to, 

«25-<l27. 

—  connecting  carrier,  right  to  limit  liability 

for,  see  Carriage  or  Merchandise,  077. 

—  contractors,  liability  of  company  for,  see 

Construction  of  Railways,  14. 

—  defendant,  how  alleged,  see  Animals,  In- 

juries TO,  342-345. 

must  be  affirmatively  proved,  see  Dam- 
ages, 85 ;  Death  by  Wrongful  Act, 
234,  238 ;  Employes,  Injuries  to, 
500-504. 

presumption  of,  see  Death  by  Wrong- 
ful Act,  232. 

when  question  of   fact  for  jury,    see 

Death  by  Wrongful  Act.  21)2,  293. 

—  employe,    burden  of  proof  to  show,   see 

Evidence,  141. 

—  employes,  in  the  manner  of  using  tools, 

see  Employes,  Injuries  to,  351. 

operation  of  trains,  use  of  ma- 
chinery, etc.,  see  Employes,  Injuries  to, 
341-395. 

injuries  to  passengers  caused  by,  see 

Sleeping,  etc..  Companies,  18. 

liability  of  mortgage  trustees  for,  see 

Mortgages,  153. 

—  fellow-servants,  as  a  defense  to  action  for 

causing  death,  see  Death  by  Wrongful 
Act.  166. 

rule  of  nonliabili.^  for,  see  Fellow- 
servants.  1-72. 

when  must  be  negatived  in  conplaint, 


see  Contributory  Negligence,  73;  Em- 
ployes, Injuries  to,  540. 
Of  fellow-servants,  whether  sole  cause   of 
injury  a  question  of  fact,   see  Fellow- 

SERVAlvTS,  517. 

—  independent  contractor  or  his  servants, 

liabilii.y  fir,  see   Independent  Contrac- 
tors, 7. 

—  initial  carrier,  when  presumed,   see  Car- 

riage ok  Merchandise,  509. 

—  injured  child,  when  question  of  fact  for 

jury,  see  Children,  Injuries  to,  103, 
104. 

employe  as  a  defense,  see  Employes, 

Injuries  to,  290-450. 

—  lessee,  liability  of  lessor  for,  see  Leases, 

etc.,  40,  111. 

—  managers  of  government  railroads,  when 

binds  the  government,  see  Government 
Railroads,  13. 

—  original  companies,  liability  of  consolida- 

ted company  for,  see  Consolidation,  40. 

—  plaintiff,  as  affecting  right  to  damages, 

see  Fires,  331. 
in  actions  for  injuries  caused  by  fire, 

defense  of,  see  Fires,  102-135. 
necessity  of  averring,  in  answer,  see 

Employes,  Injuries  to.  540. 

—  public  agents,  liabilities  of,  ^ee  Agency. 

119. 

—  railway    company,    liability   of  express 

company  for,  see  E.\press  Companies,  34. 

—  receiver's  servants,  liability  of  company 

for,  see  Receivers,  179-183. 

—  servants,  compensatory  damages  for,  see 

Damages,  20. 

—  shipper,  when  excuses  carrier,  see  Car- 

riage of  Merchandise,  180-189. 

—  station  agents,  liability  of  company  for, 

see  Station  Agents,  9. 

—  street-railway  companies,  as  regards  chil- 

dren, see  Children,  Injuries  to,  42-0O. 

—  superintendent,   when   binds   company, 
see  Superintendent,  3. 

—  third  persons,  liability  of  carrier  for,  see 

Carriage  of  Passengers,  133. 

—  vice-principal,  allegation  of,  see  Fellow- 

servants,  450. 
liability  of  company  for,  see   Fellow- 
servants,  73-105. 

—  union  depot  company,  liability  of  railroad 

company   for,    see    Union    Depot    Com- 
panies, 8. 

—  watchmen  at  crossings,  liability  for,  see 

Crossings,  Injuries,  etc.,  at,  88,  89. 
Power   to   limit    liability  for,  see    Express 

Companies,  65,  66. 
Presumption  of,  see  Animal:;,   Injuries  to, 

84,  480;  Carriage  op  Merchandise, 

173,  178;  Evidence,  125. 


i 


■ 

■  i 

H 

H 

•!f'l 

m 


m 


'I  ■ 


II 

IJ 

tl 

772 


NEGLIGENCE,  1. 


Preiumption  of,  from  time  of  exiitence  of 
defect  in  fence,  see  Fencks,  89. 

in  caeet  of  limited  liability,  see  Car- 

RiACK  OK  Mkkciiandisk,  405,  4(tO. 

Prima  facie  proof  of,  see  Animals,  Injurirs 
TO,  484-4H». 

Proof  of,  by  circumatantial  evidence,  see  Ani 
MAi.s,  Injukiks  to,  452. 

in  actions  for  injuriea  caused  by  colli- 
sion, see  Collisions,  12. 

Prosecution  for  criminal,  see  Criminal  Law, 
lU. 

Statement  of  cause  of  action  in  actions  for, 
see  Pleauin.;,  23-20. 

Stipulations  against  liability  for,  see  Limita- 
tion OK  Liability,  27-37. 

Sufficiency  of  evidence  to  show  loss  by,  see 
Carkiack  ok  Mkkciiandisk,  354. 

—  —  proof  of  in  action  for  causing  death, 

see  Death  bv  Wrongkul  Act,  253, 
270. 

Use  of  defective  track,  when  not  deemed  to 
be,  see  Employes,  Injuries  to,  54. 

Variance  between  pleading  and  proof  in  ac- 
tions for,  see  Fi.KADiNc,  135-142. 

What  will  rebut  presumption  of,  see  Animals, 
Injuries  to,  400-404. 

When  a  question  of  fact  for  the  jury,  see 
Animals,  Injuries  to,  530-542  ;  Car- 
riage of  Live  Stock,  133;  Carriage 
OF  Merchandise,  185;  Trial,  lOl. 

law,  see  Animals,  Injuries  to, 

535. 

mixed  question  of  law  and  fact,  see 

Trial,  114. 

—  presumed  in  cases  of  collision  between 

street-cars,  see  Collisions,  20. 
See  also  Comparative  Negligence  ;  Contrib- 
utory Negligence  ;  Flying  Switch; 
Imputed  Negligence. 

I.  WHAT    CONSTITUTES 772 

1.  In  General 772 

2.  What  Acti  Amount  to  Neg' 

ligence 782 

3.  What  Acts  do  Not  Amount 

to  Negligence 788 

4.  Proximate  Cause 793 

U.  QUESTIONS  OF  LAW  AND   FACT....  799 

1.  Questions  of  Law  for  the 

Court 799 

2.  Questions  of  Fact  for  the 

Jury 802 

3.  Mixed  Questions  of  Law  and 

Fact 813 

XXL    AOTIOHS  FOB    NEOUOEHOE 815 

1.  Ri^ht  of  Action — Parties — 

Defenses.... 815 

2.  Pleadim; 818 


3.  Evidence — Presumptions — 

liurdtH  of-  Proof 831 

4.  Instructions 837 

I.  WHAT  CONSTITUTES. 
I.  In  General, 

1.  ••NcBrllBCiico"  detliiod.*- Negli- 
gence is  a  relutive  term,  and  implies  the 
non-observance  of,  or  omission  to  perform, 
a  duty  prescribed  by  law,  or  it  arises  from 
the  situation  of  the  parties  and  the  circum- 
stances surrounding  tlie  transaction.  K'llley 
V.  Michigan  C.  A'.  Co.,  28  Am.  &•  Eng.  A'. 
Cas.  633,65  A/ich,  186,  31  A'.  M^.  Rep.  904. 
Shumacher  v.  St.  Louis  &*  S.  F.  R.  Co.,  39 
Fed.  Rep.  174,  17  Wash.  L.  Rep.  550. 
Roddy  V.  Missouri  Pac.  R.  Co.,  104  Mo.  234, 
15  S.  W.  Rep.  1 1 12.  —  Quoting  Heaven 
V.  Pender,  L.  R.  11  Q.  B.  D.  503,  17  Rep. 
511. —  Warner  v.  Railroad  Co.,  6  Phila. 
(Pa.)  537. 

Negligence  is  the  failure  to  use  ordinary 
care — that  is,  such  care  as  a  person  of  com- 
mon prudence  would  exercise  under  the  cir- 
cumstances. Miller  v.  Union  Pac.  R.  Co., 
5  McCrary  {U.  S.)  300,  17  Fed.  Rep.  67. 
Gravelle  v.  Minneapolis  <&«•  St.  L.  R.  Co.,  3 
McCrary  {U.  S.)  352,  10  Fed.  Rep.  711. 
Harris  v.  Union  Pac.  R.  Co.,  4  McCrary 
(U.  S.)  454,  13  Fed.  Rep.  591.  fackson- 
ville  St.  R.  Co.  V.  Chappell,  28  Am.  &* 
Eng.  R.  Cas.  227,  21  Fla.  175.  Kennedy  v. 
North  Mo.  R.  Co.,  36  Mo.  351.  O'Brien 
v.  Philadelphia,  W.  6^  B.  R.  Co.,  3  Phila. 
{Pa.)  76  Carter  v.  Columbia  6-  G.  R.  Co., 
15  Am.  «&-  £>ig.  R-  Cas.  414,  19  So.  Car.  20, 
45  Am.  Rep.  754.  Johnson  v.  Chicago  &^  N. 
W.  R.  Co.,  I  Am.  &-  Eng.  R.  Cas.  155,  49 
Wis.  529,  5  N.  W.  Rep.  886.— Quoting 
Mangam  v.  Broolclyn  R.  Co.,  38  N.  Y.  455. 

Negligence  is  the  omission  to  do  some- 
thing which  a  reasonable  man,  guided  by 
those  circumstances  which  ordinarily  regu- 
late the  conduct  of  human  affairs,  would  do, 
or  doing  something  which  a  reasonable  and 
prudent  man  would  not  do.  Jamison  v.  San 
Josi  Of  S.  C.  R.  Co.,  3  Am.  <S-  Eng.  R.  Cas. 
350.  55  Cal.  593.  Not  Springs  R.  Co.  v. 
Newman,  36  Arh.  607.  Galloway  v.  Chicago, 
R.  I.  &*  P.  R.  Co.,  58  Am.  <S-  Eng.  R.  Cas. 
245, 87  loiva  458,  54  A^.  H^.  Rep.  447.  Phila- 
delphia, W  &*  B.  R.  Co.  V.  Kerr,  25  Md. 
52 ».  Wilkins  V.  St.  Louis,  I.  M.  &»  S.  R. 
Co.,  Id  Mo.  o'„  135.  W.  Rep.  893.     Omaha 


*  Aative  ^nd  passive  negligence,  see  note,  34 
Am.  &  r.-^G.  R.  Cas.  31. 


NEGLIGENCli,  1 


773 


MS — 


831 

837 


-Negli- 

iplics  the 

3  perform , 

rises  fiom 

le  circuin- 

on.   Killey 

'  Eny;.  K. 

Rep.  904, 

A'.  Co.,  39 

Rep.    550. 

>4  Mo.  234, 

lU  Heaven 

3,  17  Rep. 

6    Phila. 

e  ordinary 
on  of  coni- 
der  the  cir- 
'ac,  ti.  Co., 
d.  Rep.  67. 
L.  R.  Co.,  3 
Rep.  711. 
McCrary 
JacksoH' 
8  Am.  «&* 
Kennedy  v. 
t.  O'Brien 
0.,  3  Phila. 
-  G.  R.  Co., 
So.  Car.  20, 
icago  &»  N. 
:as.  155.  49 
—Quoting 
N.  Y.  455- 
o  do  some- 
guided  by 
narily  regu- 
5,  would  do, 
onable  and 
tisonv.  San 
'.ng.  R.  Cas. 
s  R.  Co.  V. 
V.  Chicago, 
Ing.  R.  Cas. 
Ji,T.  Phila- 
rr,  25  Md, 
\I.  Sf  S.  R. 
)3.    Omaha 

see  note,  34 


S/.  R.  Co.  V.  Craig.  58  Am.  &•  Zing.  R.  Cas. 
208,  39  Xel>.  601,  58  X.  ir.  Rep.  209.  Afo70- 
riy  V.  Cenhiil  City  R.  Co.,  66  /iar/>.  u\.  Y.) 
43;  'Affirmed  in  51  X.  Y.  666,  mem.  R'st  v. 
Missouri Pac.  R.  Co.,  76  Pex.  168,  12  ^S.  IV, 
Rep.  1 1 3 1 . 

All  action  for  negligence  will  only  lie 
wiiere  the  defendant  was  under  some  duty 
to  tlic  plaintiif  which  he  has  omitted  to 
perform.  Evansville  &*  T.  H.  R.  Co.  v. 
Griffin,  loo  Ind.  221,  50  Am.  Rep.  783. 

Unless  there  is  some  contract,  duty,  or 
service  whicli  a  party  is  bound  to  fultil  there 
can  be  no  negligence,  fault,  or  breach  of  the 
obligiition.  McAlpin  v.  Powell,  55  Ho^v, 
Pr.  (A'.  Y.)  163. 

Negligence  may  consist  cither  in  a  viola- 
tion of  some  duty  imposed  by  the  general 
law  or  of  some  duty  imposed  by  some  more 
definite  enactment.  Kenneyv.  Hannibal  &* 
St.  J.  R.  Co.,  105  Mo.  270,  15  S.  IV.  Rep. 
983,  16  S.  IV.  Rep.  837. 

As  a  general  rule,  where  an  obligation  is 
imposed  by  a  statute,  it  is  negligence /^r  se 
to  disregard  the  obligation  thus  imposed, 
and  if  injury  is  thereby  inflicted,  the  party 
disregarding  the  statute  is  liable.  This  rule 
has  peculiar  application  to  the  management 
of  railroads  and  railroad  trains.  Indiana, 
P.  &•  ir.  R.  Co.  V.  Barnhart,  115  Ind.  399, 
13  West.  Rep.  431,  16  A'.  E.  Rep.  121. 

Before  an  act  can  be  deemed  as  negligent 
per  se  it  must  either  have  been  done  in  vio- 
lation of  a  statutory  duty,  or  must  in  its 
nature  be  so  violative  of  common  prudence 
that  without  doubt  no  prudent  man  would 
have  committed  it.  Gulf,  C.  6-»  S.  F.  R.  Co. 
V.  Gasscamp,  34  Am.  &*  Eng.  R.  Cas.  6,  69 
Tex.  545,  7  S.  IV.  Rep.  227. 

It  is  of  the  essence  of  negligence  that  the 
party  charged  should  have  knowledge  that 
liiere  was  a  duty  for  him  to  perform,  or  he 
must  have  omitted  to  inform  himself  as  to 
what  his  duty  was  in  a  given  case.«  Knowl- 
edge is  presumed  in  a  great  number  of 
cases,  and  tiie  party  will  not  be  permitted 
to  prove  that  he  had  not  knowledge  of  his 
duty.  Every  man  is  presumed  to  know  the 
law ;  and  hence,  when  the  law  imposes  a 
duty  on  a  man,  it  presumes  that  he  knew 
of  it,  and  it  will  not  permit  him  to  prove 
that  he  did  not.  When  the  specified  duty 
is  not  imposed  by  either  the  statute  or  the 
common  law,  the  party  alleging  negligence 
must  show  that  the  accused  was  cognizant  of 
the  duty  he  is  charged  with  having  neg- 
ected.    Slier  man  v.  Western  Transp.  Co., 


6:  Barb.  (X.  Y.)  150.  — FOLLOWING  Olm- 
sted V.  Waterlown  &  K.  R.  Co.,  unre- 
ported. 

No  fixed  rule  of  duty  appliL.able  to  all  cases 
can  be  established.  When  the  standard  of 
duty  shifts,  not  according  to  any  certain 
rule,  but  with  the  facts  and  circumstances 
developed  at  thelriul,  what  constitutes  neg- 
ligence cannot  be  determined  by  the  court, 
but  must  be  submitted  to  the  jury.  When 
a  duty  is  defined,  a  failure  to  perform  it  is 
negligence,  and  may  be  so  declared  by  the 
court.  Pennsylvania  R.  Co.  v.  Coon,  :ii 
Pa.  St.  430,  3  Atl.  Rep.  234.— Foi  lowed 
IN  Pennsylvania  R.  Co.  v.  Peters,  30  Am. 
&  Eng.  R.  Cas.  607,  116  Pa.  St.  206. 

The  term  "  negligence  "  embraces  acts  of 
omission  as  well  as  of  commission  in  its 
legal  signification,  and  "  diligence"  implies 
action  as  well  as  forbearance  to  act ;  iience 
the  result  of  a  mere  accident  may  constitute 
a  good  cause  of  action.  Grant  v.  Moseley, 
2^  Ala.  302. 

Negligence  is  the  failure  to  exercise  the 
care  required  by  law.  Negligence  cannot 
exist  where  the  duty  enjoined  is  omitted,  or 
the  act  done  is  required  to  be  forborne,  and 
the  act  of  omission  or  commission  is  the 
result  of  wilfulness,  fraud,  or  intention. 
Chicago,  B.  &*  Q.  R.  Co.  v.  Dougherty,  12 
///.  App.  181.— Quoting  Baltimore*  P.  R. 
Co.  V.  Jones,  95  U.S.  439. 

Where  the  teri.^  "negligence"  is  used 
without  any  qualifying  word,  it  will  be  gen- 
erally understood  that  "  ordinary  negli- 
gence" is  meant.  Kansas  Pac.  R.  Co.  v. 
Pointer,  14  A'i«.  37. 

Negligence  or  carelessness  signifies  want 
of  care,  caution,  attention,  diligence,  or  dis- 
cretion in  one  having  no  positive  intention 
to  injure  the  person  complaining  thereof. 
The  words  "recklessness,"  "  indifTerent," 
"careless,"  and  "  wanton  "  are  never  under- 
stood to  signify  positive  will  or  intention 
unless  when  joined  with  other  words  which 
show  that  they  are  to  receive  an  artificial  or 
unusual,  if  not  an  unnatural,  interpretation. 
Lexington  v.  Lewis,  10  Bush  (Aj'.)  677. 

"  Carelessness  "  and  "  negligence  "  in  law 
are  synonyms,  and  so  too  are  "  wilfully  " 
and  "  intentionally,"  but  "  carelessness  " 
and  "  wilfulness  "  are  not  equivalents,  the 
one  of  the  other,  in  any  legal  sense ;  itiey 
are  repugnant  and  inconsistent  in  their  sig- 
nification and  meaning.  Bindbeutal  v. 
Street  R.  Co.,  43  Mo.  App.  463. 

In  an  action   based  on   the  carelessness 


I 


r 


m 


NEGLIGENCE,  2,3. 


IM 


!    •! 

i  I 


and  negligenceof  an  engineer,  an  instruction 
telling  the  jury  tiiat  the  terms  "  careless," 
"  reckless,"  and  "  negligent "  do  not  imply 
a  lack  of  skill  or  capacity,  but  simply  a  wil- 
ful disregard  of  ordinary  prudence,  and  the 
engineer  was  wilfully  careless,  negligent,  and 
reckless,  etc.,  does  not  change  the  action 
and  permit  a  recovery  for  the  wilfulness  of 
the  engineer.  There  maybe  a  wilful  negli- 
gence without  an  intention  to  injure. 
Holmes  v.  Atchison,  T.  &- S.  F.  R.  Co.,  48 
Mo.  App.  79. — Distinguishing  Bindbeutal 
V.  Street  R.  Co.,  43  Mo.  App.  463. 

Negligence  is  not  ordinarily  criminal,  yet 
it  implies  culpability — an  intentional  disre- 
gard or  violation  of  the  duties  due  to  others. 
And  it  should  not  be  imputed  unless  there 
is  cai)acity  to  perform  the  duty  under  the 
circumstances  surrounding  the  person  at 
the  time  tlie  duty  devolves  upon  him.  Mow- 
rey  v.  Central  City  R.  Co.,  66  Bard.  (N.  V.) 
43  ;  affirmed  in  i\  N.  Y.  666,  mem. 

In  determining  whether  a  party  is  or  is 
not  chargeable  with  negligence,  regard 
must  be  had  to  his  moral,  intellectual,  and 
physical  capacity.  Capacity  up  to  manhood 
is  properly  measured  by  the  years  one  has 
lived.  A  man  of  full  age  and  mature  judg- 
ment will  be  presumed  to  act  with  care  and 
caution  proportioned  to  the  emergency  and 
the  necessity  for  their  exercise.  One  of 
less  age  and  experience  might  act  very  differ- 
ently. Mowrey  v.  Central  City  R.  Co.,  66 
Barb.  (N.  K)  43;  affirmed  in  51  A'.  V.  666, 
mem. 

Negligence  is  an  omission  of  care  and 
caution  in  what  we  do.  But  '.he  duty  to  be 
act'^ely  cautious  and  vigilant  is  relative, 
and  where  that  duty  has  no  existence  be- 
tween particular  parties  there  can  be  no 
such  thing  as  negligence  in  the  legal  sense 
of  the  term.  Morris  v.  Brorun,  \<)  N.  Y.  S. 
y»'.  355  ;  reversing  4  N.  Y.  S.  R.  832. 

Negligence  can  be  attributed  to  a  railroad 
company  only  when  it  has  notice  of  the 
emergency  in  time,  by  the  use  of  ordinary 
diligence,  the  means  being  at  hand,  to  avoid 
the  accident.  Rigler  v.  Charlotte,  C.  <S^  A, 
R.  Co.,  26  Am.  <&*  Eng.  R.  Cas.  386,  94  N. 
Car.  604.— Quoting  Wilson  v.  Norfolk  & 
S.  R.  Co.,  90  N.  Car.  69. 

When  a  person  inadvertently  omits  or 
fails  to  do  some  act  required  in  the  dis- 
charge of  a  legal  duty  to  another,  whether 
such  duty  arises  from  contract  or  from  the 
nature  of  the  employment  in  which  the  per- 
son is  engaged,  such  omission  constitutes 


actionable  negligence,  if  as  an  ordinary  and 
rational  sequence  it  produces  damages  to 
another.  Galveston  C.  R.  Co,  v.  Hewitt,  67 
Tex.  473.  3  S-  ^V-  i^ep.  705. 

2.  Ditt'creut  kinds  uiid  degrees  of 
netfligeiice.  —  Refinement  of  distinction 
as  to  different  degrees  of  negligence  is  often 
difficult  of  application  in  the  administration 
of  justice.  What  facts  will  constitute  that 
degree  of  diligence  which  the  law  requires, 
and  from  the  absence  of  which,  when  injury 
results,  damages  should  be  recovered,  must 
depend  on  the  circumstances  of  each  case. 
The  greater  the  hazard  and  danger  to  others 
involved  in  the  business  pursued  the  more 
complete  must  be  the  exercise  of  care.  Gal- 
veston C.  R.  Co.  V.  Hewitt,  67  Tex.  473,  3  S. 

W.  Rep.  705. 

What  may  be  gross  negligence  in  one 
case  may  not  be  so  under  the  particular 
facts  of  another;  and  ordinary  care  in  one 
case  may  be  very  gross  negligence  in  an- 
other and  a  different  case.  Northern  C. 
R.  Co.  V.  State,  29  Md.  420.— Reviewed  in 
Baltimore  &  O.  R.  Co.  v.  State,  36  Md.  366. 
— Louisville  &■*  N.  R.  Co.  v.  Boivler,  9  Heisk. 
(Tenn.)  866,  20  Am.  Ry.  Rep.  65.— Quoting 
Louisville  &   N.  R.  Co.  v.  Collins,  2   Duv. 

(Ky.)n4. 

A  state  of  facts  which  would  show  ordi- 
nary negligence  in  case  of  injury  of  a  person 
who  has  arrived  at  years  of  maturity  might 
in  case  of  a  child  establish  gross  negligence. 
Sabine  <S-  E.  T.  R.  Co.  v.  Hanks,  73  Tex. 
323,  1 1  S.  W.  Rep.  yj7. 

There  are  no  degrees  in  negligence  as  ap- 
plied in  the  courts  of  New  York.  Baxter 
V.  Second  Ave.  R.  Co.,  3  Robt.  (N.  Y.)  510,  30 
How.  Pr.  219. — Following  Wilds  v.  Hud- 
son River  R.  Co.,  24  N.  Y.  430. 

In  relation  to  the  liability  of  a  railroad 
company  to  third  persons  for  wrongful  acts, 
there  is  no  such  thing  as  "  corporate  negli- 
gence," as  distinguished  from  the  negligence 
of  employ6s  of  the  corporation,  since  as  to 
such  third  person  the  corporation  can  only 
act  through  its  employes  or  agents.  Kan- 
sas City,  M.  <S-  B.  R.  Co.  v.  Sanders.  58  Am. 
&•  Etig.  R.  Cas.  140,  98  Ala.  293,  13  So.  Rep. 

57. 

3.  "Gross  negligence"  defined.— 

Gross  negligence  is  a  relative  term.  It  is 
doubtless  to  be  understood  as  meaning  a 
greater  want  of  care  than  is  implied  by  the 
term  ordinary  negligence.  But,  after  all,  it 
means  the  absence  of  the  care  that  is  re- 
quired  under  the  circumstances.      Kansas 


NEGLIGENCE, 


775 


iinary  and 
aniuges  to 
Hewitt,  67 

egrees  of 

distinction 
ice  is  often 
inistration 
titute  tliut 
w  requires, 
■lien  injury 
ered,  must 
each  case. 
;r  toothers 
i  the  more 
care.  Gal- 
"c-  473.  3  S. 

ce  in  one 
particular 
ire  in  one 
nee  in  an- 
orthern  C. 
/lEWED  IN 
}6  Md.  366. 
r,  9  Ihisk. 
-Quoting 
ns,  2   Duv. 

show  ordi- 
of  a  person 
arity  might 
negligence. 
':s,  73   Tex. 

ence  as  ap- 

k.     Baxter 

Y.)  510.30 

ds  V.  Hud- 

a  railroad 
)ngfui  acts, 
irate  negli- 
negligence 
since  as  to 
)n  can  only 
nts.  A'r«- 
'ers,  58  Am. 
1 3  So.  Rep. 

lefined.— 

erm.  It  is 
meaning  a 
ilied  by  the 
after  all,  it 
that  is  re- 
i.      Kansas 


Pac,  R.  Co.  '■  'essler,  18  Kmt.  523,  15  Am. 
Ry.  Rep.  338.— Quoting  Milwaukee  &  St. 
P.  R.  Co,  V.  Anns,  91  U.  S.  489;  Western 
Union  Tel.  Co.  v.  Eyser,  91  U.  S.  495,  «. 

If  the  occupation  or  employment  be  one 
requiring  skill,  the  failure  10  exert  that 
needful  skill,  either  because  it  is  not  pos- 
sessed or  from  inattention,  is  gross  negli- 
gence. Ah  \.  New  York,  L.  E.  &^  W.  R. 
Co.,  zg  Fed.  Rep.  72.— Following  Randall 
7/.  Baltimore  &  O.  R.  Co.,  109  U.  S.  478, 
3  Sup.  Ct.  Rep.  322 ;  Metropolitan  R.  Co. 
7>.  Jackson,  3  App.  Cas.  193;  Marshall  v. 
Hubbard,  117  U.  S.  415,  6  Sup.  Ct.  Rep. 
806;  Anderson  County  ComVs  v.  Beal,  113 
U.  S.  227,  5  Sup.  Ct.  Rep.  433. 

Gross  negligence  on  the  part  of  a  carrier 
includes  the  want  of  that  reasonable  skill, 
care,  and  expedition  which  may  reasonably 
be  expected.  Beal  v  South  Devon  R.  Co.,  3 
H.  .S^•  C.  337,  12  IV.  R.   1115,  II  L.  T.  184. 

Ill  the  management  of  a  railroad  or  any 
department  thereof  gross  neglect  is  the  fail- 
ure to  take  such  care  as  a  person  of  common 
sense  and  reasonable  skill  in  like  business, 
but  of  careless  habits,  would  observe  in 
avoiding  injury  to  his  own  person  or  life 
under  circumstances  of  equal  or  similar 
danger.  LouiivUfe  &*  N,  R.  Co.  v.  McCoy, 
15  Am.  &*  Eng.  R.  Cas.  277,  Si  Ky.  "   . 

Gross  negligence  is  a  technical  term.  It 
is  the  omission  of  that  care 'which  even 
inattentive  and  thoughtless  iien  never  fail 
to  take  of  their  own  property  " — it  is  a  vio- 
lation of  good  faith.  It  implies  malice  and 
evil  intention.  Hence  in  all  questions  of 
punitive  or  vindictive  damages  the  inten- 
tion of  the  defendants  is  a  material  co:!sid- 
eration.  Bannon  v.  Baltimore  6^  O,  R,  Co., 
24  Md.  108. 

Gross  negligence  is  that  entire  want  of 
care  which  would  raise  a  presumption  of 
a  conscious  indifference  to  consequences. 
Such  indifference  is  morally  criminal,  and, 
if  it  leads  to  actual  injury,  may  well  be  re- 
garded as  criminal  in  law.  Southern  C.  P. 
Sf*  M.  Co.  V.  Bradley,  52  Tex.  587.  Missouri 
Pac.  R.  Co.  V.  Shuford,  37  Am.  &>  Eng.  R. 
Cas.  194,  72  Tex.  165,  10  5.  W.  Rep.  408. 
Missouri  Pac.  R.  Co.  v.  Lawler,  3  Tex.  App. 
{Civ.  Cas.)  38. 

Neither  intentional  wrong  nor  the  impli- 
cation of  bad  faith  necessarily  belongs  to 
the  proper  definition  of  gross  neglect.  A 
person  may  be  guilty  of  gross  neglect  with- 
out intending  to  do  wrong  to  others,  or  to 
act  in  bad  faith,  in  the  performance  of  a 


duty.  It  is  not  equivalent  to  fraud  or  mal- 
ice, although  it  may  "  furnish  evidence  of 
fraud  "  or  may  tend  to  show  malice.  Louis- 
^ville  &*  N.  R.  Co.  v.  McCoy,  15  Am.  &•  Eng. 
R.  Cas.  277,  81  Ky.  403.— Disappkoving 
Louisville  &  N.  R.  Co.  v.  Robinson,  4  Bush 
509;  Maysville  &  L.  R.  Co.  z/.  Herrick,  13 
Bush  127.  —  Criticised  in  Downey  v. 
Chesapeake  &  O.  R.  Co.,  28  W.  Va.  732. 

Gross  neglect  is  either  such  an  intentional 
or  reckless  disregard  of  security  and  right 
as  to  imply  bad  faith,  and  therefore  squints 
at  fraud,  and  is  tantamount  to  the  magna 
culpa  of  the  civil  law,  which  in  some  re- 
spects is  quasi  criminal.  Louisville  St»  N. 
R.  Co.  V.  Robinson,  4  Bush  {Ky.)  507.— Over- 
ruled in  Louisville  &  N.  R.  Co.  v.  McCoy, 
81  Ky.  403. 

Where  a  passenger  is  injured  owing  to  a 
derailment  caused  by  a  broken  rail,  evidence 
that  the  cross  ties  at  the  point  of  derailment 
were  "  unsound,"  "  decayed,"  "  rotten,"  and 
that  the  rail  which  was  broken  was  an  "  old 
rail,"  tends  to  show  such  gross  negligence, 
implying  recklessness  and  wantonness  on 
the  part  of  the  company,  as  to  authorize  a 
jury  to  return  a  verdict  for  exemplary  dam- 
ages. Alabama  G.  S.  R.  Co.  v.  Hill,  44  Am. 
&*  Eng.  R.  Cas.  441.  90  Ala.  71,8  So.  Rep. 
90. 

Gross  negligence  in  Illinois  is  simply  a 
want  of  the  use  of  ordinary  care ;  and  or- 
dinary care  is  all  that  is  required,  which 
varies  with  circumstances  and  the  different 
situations  under  which  the  injury  may  oc- 
cur;  but  under  all  circumstances  one  must 
act  as  a  reasonable,  prudent  person  would 
act,  which  is  ordinary  care.  Chicago,  IV, 
&•  V.  Coal  Co.  v.  Peterson,  39  ///.  App.  1 14. 

Gross  negligence  is  not  a  term  which, 
grammatically  at  least,  and  apparently  not 
in  law,  though  frequently  so  applied,  is  a 
subject  of  comparison,  as  it  would  be  ab- 
surd to  say  "  gross  gross,  grosser  gross,  and 
grossest  gross."  Illinois  C.  R.  Co.  v.  Beard, 
49  ///.  App.  232. 

Gross  negligence  of  itself  is  not  in  law  a 
design  and  intention  of  mischief,  although 
it  may  be  cogent  evidence  of  such  fact.  Il- 
linois C.  R.  Co.  V.  Beard,  49  ///.  App.  232. 

Gross  negligence  evidencing  wilfulness 
or  wantonness  is  such  gross  want  of  care 
and  regard  for  the  rights  of  others  as  to 
justify  the  presumption  of  wilfulness  or 
wantonness,  or  to  imply  a  disregard  of  con- 
sequences, or  a  willingness  to  inflict  injury. 
Lake  Shore  &*  M.  S.  R.  Co.   v.   Bodemer,  54 


I 


"I?  a 


776 


NEGLIGENCE,  4,5. 


II 


Am.  &>  Enj,^.  A\  Gis.  1 77,  1 39  ///,  596,  29  A'. 
E.  Rep.  692 ;  affirming  33  ///.  .///>.  479. — 
Quoting  Illinois  C.  R.  Co.  v.  Godfrey,  71 
III.  500 ;  Harlan  v.  St.  Louis.  K.  C.  &  N.  R. 
Co.,  65  Mo.  22. 

4.  "Wilful  iiegli{;eiice"  defined.— 
VVl'.at  degree  of  evidence  the  law  considers 
equivalent  to  a  wilful  or  wanton  act  is  as 
hard  to  detine  as  negligence  itself,  and  in 
the  nature  of  things  is  so  dependent  upon 
tlie  particular  circumstances  of  each  case  as 
not  to  be  susceptible  of  a  general  statement. 
Illinois  C.  li.  Co.  v.  Beard,  49  ///.  App.  232. 

Where  an  intent,  either  actual  or  con- 
structive, to  commit  an  injury  exists  at  the 
time  of  its  commission,  such  injury  ceases 
to  be  a  merely  negligent  act  and  becomes 
one  of  violence  or  aggression.  Pennsylvania 
Co.  V.  Sinclair,  62  Ind.  301. 

Wilful  negligence,  in  the  meaning  of  the 
statute,  is  such  conduct  as  evidences  reck- 
less indifference  to  the  safety  of  the  public, 
or  is  an  intentional  failure  to  perform  a 
plain  and  manifest  duty,  in  the  performance 
of  which  the  public  and  the  party  injured 
had  an  interest.  Eskridge  v.  Cincinnati, 
N.  O.  &-  T.  P.  A'.  Co.,  42  Am.  6-  Eng.  A'. 
Cas.  176,  89  ATy.  367.  12  S.  W.  Rep.  580. 
Louisville  &'  N.  R.  Co.  v.  Filbern.  6  Bush 
(A'y.)  574.  Louisville  &•  P.  Canal  Co.  v. 
Murphy,  9  Bush  {Ky.)  522.  Cla.vton  v. 
Lexington  i5-  B.  S.  R.  Co.,  13  Bush  (Ky.) 
636,  17  Am.  Ry.  Rep.  12.  Kentucky  C.  R. 
Co.  V.  Gastineau,  83  Ky.  1 19. 

Recklessness  reaching  in  degree  to  an 
utter  disregard  of  consequences  may  supply 
the  place  of  a  specific  intent,  and  be  suffi- 
cient to  establish  wilfulness.  Cincinnati,  I., 
St.  L.  (S-  C.  R.  Co.  V.  Cooper,  120  Ind.  469, 
22  A^.  E.  Rep.  340,6  L.  R.  A.  241.  Shu- 
macher  v.  St.  Louis  &^  S.  F.  R.  Co. ,  39  Fed. 
Rep.  174,  17  Wash.  L.  Rep.  530. 

Slight  neglect  may  be  culpable,  ordinary 
and  gross  neglect  are  always  culpable,  but 
wilful  is  intentional  neglect  or  such  as  im-, 
plies  actual  malice,  as  in  the  case  of  knowl- 
edge, express  or  necessarily  implied  from 
the  surrounding  circumstances,  of  the  peril- 
ous character  of  the  work  and  the  voluntary 
or  intentional  failure  to  provide  the  ordi- 
nary means  of  security.  Lexington  v.  Lewis, 
10  Bush  (Ky.)  677. 

"  Wilful "  is  not  to  be  taken  as  synony- 
mous with  "gross,"  a  word  which,  when 
applied  to  negligence,  has  a  well-defined 
meaning.  Hansford  v.  Payne,  1 1  Bush  (Ky.) 
380. 


5.  The  cnrc  reqii  ircd  from  the  com- 
pany, {feiieraliy.* — (^ne  engaged  in  the 
prosecution  of  a  lawful  work  is  bound  to  use 
such  care  and  caution  in  carrying  it  on  as 
will  reasonably  enable  others  by  the  practice 
of  ordinary  prudential  care  to  avoid  per- 
sonal hurt,  and  prevent  injury  to  their 
property.  Myers  v.  Snyder,  Bright.  N,  P. 
(Pa.)  489. 

The  liability  to  make  reparation  for  an 
injury  by  negligence  is  founded  upon  an 
original  moral  duty  enjoined  upon  every 
person  so  to  conduct  himself  or  exercise 
his  own  rights  as  not  to  injure  another. 
Blaine  v.  Chesapeake  <S^  O.  R.  Co.,  9  W.  Va. 
252, 

In  general,  if  a  voluntary  act  lawful  in  it- 
self may  naturally  result  in  the  injury  of 
another  or  the  violation  of  his  legal  rights, 
the  actor  must  at  his  peril  see  to  it  that  such 
injury  or  such  violation  does  not  follow,  or 
he  must  expect  to  respond  in  damages 
therefor,  and  this  is  true  regardless  of  the 
motive  or  the  degree  of  care  with  which 
the  act  is  performed.  Georgetown,  B.  <S«»  L, 
R.  Co.  V.  Eagles,  30  A/n.  &»  Eng.  R.  Cas, 
228,  9  Colo.  544,  13  Pac.  Rep.  696.— QUOTING 
Milwaukee  &  St,  P.  R.  Co.  v.  Kellogg,  94 
U.  S.  469. 

There  is  no  distinction  between  railroads 
and  ordinary  hinhways  in  regard  to  the  de- 
gree of  care  which  the  law  requires  on  the 
part  of  those  who  have  the  direction  or 
management  of  vehicles  upon  them.  Beers 
V.  Housa tonic  R.  Co.,  19  Conn.  566. 

The  degree  of  care  to  be  exercised  by  a 
railroad  company  in  preventing  the  destruc- 
tion of  property  or  other  injuries  must  be 
proportioned  to  the  dangerous  nature  of  the 
means,  and  instruments  employed  by  it. 
Gorman  v.  Pacific  R.  Co.,  26  iJ/t?.  441.  Gerke 
V.  California  Steam  Nav.  Co.,  9  Cal.  251. — 
Reviewing  Rood  v.  New  York  &  E.  R.  Co., 
18  Barb.  (N.  Y.)  80. — Pennsylvania  R.  Co.v. 
Righter,  2  Am.&^  F-"g-  A.  Cas.  220,  42  N.J. 
L.  180.  Houston  dr*  T.  C.  R.  Co.  v.  Boozer, 
34  Am.  &^  Eng.  R.  Cas.  63,  70  Tex.  530,  8 
S.  W.  Rep.  119.— Reviewed  in  Artusy  v. 
Missouri  Pac.  R.  Co.,  37  Am.  &  Eng.  R.  Cas. 
288,  73 Tex.  191,  II  S.  W.  Rep.  177. 

But  the  duty  is  not  imposed  upon  it  of 
using  every  possible  contrivance  that  hu- 
man ingenuity  might  provide,  but  it  should 


*  Amount  of  care  railroad  companies  must 
exercise  to  avoid  injuring  others,  see  note,  75 
Am.  Dec.  383. 


w^. 


NEGLIGENCE,  6. 


777 


be  vigilant  in  maliing  use  of  every  reason- 
able safeguard  which  the  nature  uf  its  busi- 
ness will  admit,  to  avoid  unjust  interference 
with  others.  BaUiiiiore  <S««  O.  A'.  Co.  v.  S/ate, 
29  A/(i.  252. 

Where  both  parties  stand  on  an  equality 
as  to  the^  means  uf  avoiding  an  accident, 
and  both  are  engaged  in  a  lawful  employ- 
ment, no  more  than  ordinary  diligence  can 
be  demanded  of  either.  Brand  v.  Sc/te- 
nectiuiy  &*  T.  R.  Co.,  8  Barb.  (_N.  J'.)  368. 

The  liability  of  the  New  York  &  Erie  R. 
Co.  to  damages  for  injuries  resulting  from 
carelessness,  negligence,  or  want  of  proper 
conduct  on  its  part  does  not  result  from  New 
Jersey  Act  of  March  14,  1853,  which  enacts 
that  it  shall  be  liable  for  damages  arising 
from  its  operating  certain  roads  specified. 
Austin  V.  New  York  &*  E.  R.  Co.,  2^  N.  J. 
L.  381. 

It  seems,  that  the  fact  that  a  railroad  com- 
pany has  complied  with  the  requirements 
of  the  statute  in  the  running  and  manage- 
ment of  it  trains  does  not  necessarily,  and 
in  all  cases,  relieve  it  from  liability  for  neg- 
ligence ;  the  care  necessary  to  be  observed 
is  not  in  all  cases  confined  to  the  statutory 
requirements,  but  depends  upon  circum- 
stances. Cordell  v.  New  York  C.  <S-  //.  R. 
R.  Co.,  70  N.  Y.  119,  18  Am.  Ry.  Rep.  511.— 
Followed  in  Salter  v.  Utica  &  B.  R.  R. 
Co..  8  Am.  &  Eng.  R.  Cas.  437,  88  N.  Y.  42. 

While  a  railroad  company  as  a  carrier  of 
passengers  owes  a  duty  to  its  passengers  and 
also  to  its  employes  of  active  diligence  to 
guard  them  from  danger,  as  to  a  stranger, 
it  owes  him  no  such  duty,  either  to  guard 
him  from  danger  or  in  any  way  to  antici- 
pate and  so  avoid  the  consequences  of  his 
own  negligence.  A'eiv  York,  L.  E.-Sr*  IV. 
R.  Co.  v.  Atlantic  Refining  Co.,  49  Am.  &* 
Eng.  R.  Cas.  131,  129  A'^,  Y.  597,  29  A'.  E. 
Rep.  829,  42  A^.  Y.  S.  R.  346 ;  reversing  36 
A^.   Y.  S.  R.  658,  13  A^.  Y.  Supp.  ^66. 

O.  "  Ordinary  care  "  deflnecl.— "  Or- 
dinary care  "is  altogether  a  relative  term,  and 
the  want  of  it  means  the  failure  to  use 
those  precautions  which  a  just  regard  to  the 
persons  and  property  of  others  demands 
should  be  used  under  the  circumstances  of 
each  particular  case.  Steamboat  Farmer  v. 
McCraw,  26  Ala.  1 89.  Fletcher  v.  Boston  &* 
M.  R.  Co.,  I  Allen  (Mass.)  9.  Elmborg  v. 
St.  Paul  City  R.  Co.,  51  Minn.  70,  52  A^.  IV. 
Rep.  969. 

The  terms  "ordinary  care"  and  "dili- 
gence," which  railroad  companies  are  bound 


to  exercise^  when  applied  to  the  manage- 
ment of  engines  and  cars  in  niui  luii,  must  be 
understood  to  import  all  the  care  and  cir- 
cumspection, prudence  and  discretion,  which 
the  peculiar  circumstances  of  the  place  or 
caution  reasonably  required  of  such  com- 
pany or  its  servants  ;  and  this  will  be  in- 
creased or  diminished  according  as  the 
ordinary  liability  to  danger  to  others  is 
increased  or  diminished  in  the  movement 
or  operation  of  them.  Parvis  v.  Phila- 
delphia, W.  &•  B.  R.  Co.,  {Del.)  17  At  I. 
Rep.  702.  Jacksonville,  T.  6-  K.  W.  R.  Co. 
v.  Peninsular  L.,  T.  &^  M.  Co.,  49  Am.  &* 
Ettg.  R.  Cas.  603,  27  Fla.  1,9  So.  Rep.  661. 
Murphy  v.  Chicago,  R.  I.  &<•  P.  R.  Co.,  38 
Iffwa  539. — Distinguished  in  Farley  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  56  Iowa  337. — 
Brand  v.  Schenectady  &*  T.  R.  Co.,  8  Barb. 
(A'.   K)368. 

Ordinary  care  is  that  degree  of  care  which 
a  person  of  ordinary  prudence  is  presumed 
to  use,  under  the  particular  circumstances, 
to  avoid  injury,  and  should  be  in  proportion 
to  the  danger  to  be  avoided  and  the  fatal 
consequences  involved  in  its  neglect.  To- 
ledo iS-  H^.  R.  Co.  V.  Goddard,  25  Ind.  185. 
Chicago  &*  A,  R.  Co.  v.  Adler,  39  Am.  &* 
Eng.  R.  Cas.  666,  129  ///.  335,  21  N.  E.  Rep. 
846  ;  affirmifig  28  ///.  App.  102.  Tethenrw 
v.  St.  Joseph  «S-  D.  M.  R.  Co.,  98  Mo.  74,  1 1 
S.  W.  Rep.  310.  Stanley  v.  Union  Depot 
R.  Co.,  114  Mo.  606,  21  S.  W.  Rep.  832.— 
Quoting  Frick  v.  St.  Louis,  K.  C.  &  N.  R. 
Co.,  75  Mo.  ^91.— State  v.  Manchester  &■*  L. 
R.  Co.,  52  A'.  H.  528.  Lamline  v.  Houston, 
W.  S.  (S-  P.  F.  R.  Co.,  14  Daly  {N.  Y.)  144. 
Houston  Sf  T.  R.  Co.  v.  Oram,  49  Tex.  341. 
—Quoted  in  Texas  &  P.  R.  Co.  v.  Gor- 
man, 2  Tex.  Civ.  App.  144. — Houston  &^  G. 
N.  R.  Co.  V.  Parker,  50  Tex.  330.— AP- 
PROVED IN  Ohio  &  M.  R.  Co.  V.  Thillman, 
143  111.  127.— Norjolk  &-  P.  R.  Co.  v.  Orms- 
by,  27  Gratt.  (Va.)  455,  17  Am.  Ry.  Rep 
321.* 

It  is  going  too  far  to  require  that  degree 
of  care  which  any  of  such  persons  wouM 
take  of  "  his  family  "  placed  under  like  cir- 
cumstances. Louisville  &-  N.  R.  Co.  v. 
McCoy,  15  Am.  &•  Efig.  R.  Cas.  277,  81  Ay. 

403- 

But.  as  the  nature  of  the  subject  of  the 
required  care  and  the  danger  to  which  it  is 
exposed  are  the  main  considerations  in  de- 
termining ordinary  or  any  other  degree  of 

*  See  also  post,  l>. 


■;i.'      5 


m 


NEGLIGENCE,  7-9. 


W: 


cire  in  a  given  case,  it  results  that  what 
would  be  ordinary  care  in  one  iiind  of  busi- 
ness wojild  be  gross  negligence  in  another. 
Louisville  &*  N.  K.  Co.  v.  McCoy,  1 5  Am. 
&*  Etig.  A'.  Ctis.  277,  81  A>.  403. 

A  charge  of  the  court  is  erroneous  which 
instructs  the  jury  that  ordinary  care  or  pru- 
dence is  "  just  such  care  as  one  of  you  sim- 
ilarly employed  would  have  exercised  under 
such  circumstances  "  as  those  which  sur- 
rounded plaintiff.  Ordinary  care  is  that 
degree  of  care  which  a  man  of  ordinary 
prudence  would  have  exercised  ;  not  that 
care  which  any  particular  man  or  set  of 
men  would  have  exercised.  Louisville  &^ 
N.  R.  Co.  V.  Gffwer,  31  Am.  &*  Eng.  K. 
Cas.  168,  85  Tenn.  465,  3  S.   W.  Rep.  824. 

7.  More  than  ordinary  care  and 
skill. —  Persons  having  control  01  steam- 
boats and  locomotive  engines  must  employ 
more  than  ordinary  skill  and  diligence  to 
prevent  disasters.  They  are  required  to  be 
skilled  in  their  particular  departments,  but 
infallibility  is  not  required  of  them.  Mobile 
(S-  M.  R.  Co.  v.  Blakely,  59  Ala.  47 1-— 
Following  Grey  t'.  Mobile  Trade  Co.,  55 
Ala.  387  ;  Tanner  v.  Louisville  &  N.  R.  Co., 
60  Ala.  621  ;  South  &  N.  Ala.  R.  Co.  v.  Sul- 
livan, 59  Ala.  272. 

8.  Reasonable  care  and  diligence. 
— Railroad  companies  are  not  placed  under 
the  same  degree  of  obligation  as  to  care  and 
diligence  to  guard  against  injuries  to  stran- 
gers as  they  are  to  those  with  whom  tliey 
have  contract  relations.  To  the  former 
their  obligation  is,  upon  considerations  of 
humanity  and  justice,  to  conform  their  con- 
duct as  to  the  rights  of  others,  and,  in  the 
prosecution  of  their  lawful  business,  to  use 
every  reasonable  care  and  precaution  to 
avoid  injury.  O'Connor  \.  Illinois  C.  R.  Co., 
44  La.  Ann.  339,  10  So.  Rep.  67S. — Apply- 
ing Hearn  v.  St.  Charles  St.  R.  Co.,  34  La. 
Ann.  160;  Reary  w.  Louisville,  N.  O.  &  T. 
R.  Co.,  40  La.  Ann.  32  ;  Snyder  v.  Natchez, 
R.  R.  &  T.  R.  Co.,  42  La.  Ann.  302;  Lott 
V.  New  Orleans  City  &  L.  R.  Co.,  37  La. 
Ann.  337 ;  Hoag  v.  Lake  Shore  &  M.  S.  R, 
Co., 85  Pa.  St.  293  ;  Caulcy  v.  Pittsburg,  C.  & 
St.  L.  R.  Co.,  98  Pa.  St.  498.  Distinguish- 
ing Westerfield  7>.  Levis,  43  La.  Ann.  67. 
—Holmes  v.  Central  R.  6-  B.  Co..  37  Ga. 
593.— Distinguished  in  Georgia  R.  Co.  v. 
Williams,  74  Ga.  723 ;  Ransom  v.  Chicago, 
St.  P..  M.  &0.  R.  Co..  19  Am.  &  Eng.  R, 
Cas.  16,  62  Wis.  178,  51  Am.  Rep.  7  \8. 

One    who    undertakes    to    do    u   Ching, 


whether  for  a  reward  or  for  his  own  pur- 
pose, must  use  reasonable  care  that  no  in- 
jury results  to  another  from  the  manner  of 
doing  it.  Slein  v.  Union  Depot  Co.,  1 1  Mo. 
App.  599. 

The  owner,  lessee,  or  occupant  of  premises 
is  bound  to  use  reasonable  care  in  conduct- 
ing his  business  so  as  not  to  injure  persons 
lawfully  upon  such  premises.  Ingalls  v. 
Adams  Exp.  Co.,  44.  Minn.   128,  46  N.  IV. 

Rep.  325- 

N.  H.  Gen.  St.  ch.  264,  §  14,  makes  no 
distinction  between  negligence  and  gross 
negligence,  and  does  not  require  less  than 
reasonable  care  on  the  part  of  the  proprie- 
tors of  a  railroad,  nor  more  than  reasonable 
care  in  their  servants.  State  v.  Boston  &* 
M.  R.  Co.,  58  N.  H.  408. 

O.  Sncli  care  as  prudent  men  would 
use  under  like  circumstances.*— Rail- 
way  companies  are  required  in  moving  their 
trains  to  use  such  care  and  diligence  as  or- 
dinarily prudent  men  would  use  to  prevent 
injury  under  the  circumstances  of  the  par- 
ticular cases  under  investigation.  Gulf,  C. 
&'S.  F.  R.  Co.  V.  Ho(^es,  76  Tex.  90,  13  5. 
W.  Rep.  64.  Parrot  v.  IVells,  15  IVall. 
{U.  S.)  524.  0/iio  <S-  M.  R.  Co.  V.  Shanefelt, 
47  ///.  497.  Bannon  v.  Baltimore  <S«»  O.  R. 
Co.,^\Md.  108.— Reconciled  IN  Baltimore 
&  O.  R.  Co.  V.  State,  30  Md.  XI.— Northern 
C.  R.  Co.  V.  State,  29  Md.  420.  Austin  &* 
N.  IV.  R.  Co.  v.  Beatty,  73  Tex.  592,  1 1  S. 
W.  Rep.  858. 

They  are  only  held  to  a  high  degree  of 
care, and  are  not  insurers  of  their  passengers. 
Simms  v.  South  Carolina  R.  Co.,  30  Am.  &» 
Eng.  R.  Cas.  571,  27  So.  Car.  268,  3  .S".  E. 
Rep.  301.  —  Quoting  Renneker  v.  South 
Carolina  R.  Co.,  20  So.  Car.  219. — Criti- 
cised IN  Madden  v.  Port  Royal  &  W.  N.  C. 
R.  Co.,  52  Am.  &  Eng.  R.  Cas.  286,  35  So. 
Car.  381, 

Nor  are  they  required  to  use  every  possi- 
ble precaution  to  avoid  injury,  nor"  extreme 
vigilance."  Schmidt  v.  Steinway  &*H.P.  R. 
Co.,\Silv.App.  {N.  Y.)  119. 

A  common  carrier  who  employs  steam  as 
his  motive  power  must  bring  to  the  service 
"  that  degree  of  diligence  which  very  care- 
ful and  prudent  men  take  of  their  own 
affairs."  Grey  v.  Mobile  Trade  Co.,  55  Ala. 
387. — Followed  in  Tanner  v.  Louisville  & 
N.  R.  Co.,  60  Ala.  621.— Cook  v.  Central  R. 
&>  B.  Co.,  67  Ala.  533.     Alabama  G,  S.  R. 

''^  See  also  ante,  O. 


NEGLIGENCE,  10-13. 


779 


Co.  V.  McAlpine,  22  Am.  &•  /fwj,'.  R.  Cas. 
602,  75  Ala.  113.— Following  Grey  w.  Mo- 
bile Trade  Co.,  55  Ala.  387  ;  Tannery.  Louis- 
ville &  N.  R.  Co.,  60  Ala.  621  ;  Alabama  G. 
S.  R.  Co.  V.  McAlpine,  71  Ala.  545, 

10.  Bxtrnordiiiary  <lili{feiice.— The 
law  requires  those  who  use  dangerous  agen- 
cies in  the  prosecution  of  their  business  to 
observe  the  greatest  care  in  the  custody  and 
use  of  them.  Pittsburg,  C,  &*  St.  L.  A'.  Co. 
V.  Shields,  44  Am.  &*  Etig.  R.  Cas.  647,  47 
Ohio  St.  387,  8  L.  R.  A.  464,  24  .^V.  E.  Rep. 
658. 

In  the  employment  of  steam  as  a  motive 
power  railroad  companies  are  held  to  the 
exercise  of  extraordinary  diligence  ...at 
degree  of  diligence  which  very  careful  and 
prudent  men  exercise  in  the  conduct  of  their 
own  affairs,  and  this  requires  that  they  shall 
employ  very  careful  and  prudent  men,  and 
that  the  persons  employed  by  them  shall 
exercise  such  care  and  diligence  as  very 
careful  and  prudent  men  exercise  in  the 
conduct  of  their  own  private  interests  and 
important  enterprises.  Tanner  \.  Louisville 
»S-  N.R.  G?.,6o^i/<i.  621.— Following  Grey 
V.  Mobile  Trade  Co.,  55  Ala.  387.— Fol- 
lowed IN  Mobile  &  M.  R.  Co.  v.  Blakely,  59 
Ala.  471  ;  Alabama  G.  S.  R.  Co.  v.  McAlpine, 
22  Am.  &  Eng.  R.  Cas.  602,  75  Ala.  113. 

11.  Utmost  care  and  diligence.— 
A  railroad  company  is  bound  to  manage  its 
road  and  machinery  with  the  utmost  care 
and  vigilance  ;  and  the  freedom  from  negli- 
gence which  is  required  of  a  plaintiff  is  only 
that  ordinary  prudence  and  attention  which 
sensible  men  are  accustomed  to  give  in  sim- 
ilar cases.  Cook  v.  New  York  C.  R.  Co.,  i 
Abb.  App.  Dec.  (N.  Y.)  432,  3  Keyes  476. 

The  rights  and  liabilities  of  railroad  com- 
panies in  regard  to  accidental  injuries  to 
persons  or  property  as  they  existed  at  com- 
mon law  have  generally  been  merged  in 
certain  statutory  regulations  by  which  those 
rights  and  liabilities  are  clearly  defined. 
They  are  held  to  just  such  an  extraordinary 
degree  of  diligence  as  their  capacity  for 
mischief  renders  essential  to  the  public  pro- 
tection, and  for  every  accident  which  results 
in  injury  to  an  individual  which  might  have 
been  prevented  by  the  utmost  care  and 
caution  they  are  liable.  East  Tenn.  Or*  G. 
R.  Co.  V.  St.  John,  5  Sneed  ( Tenn.)  524. 

The  terms  "  the  utmost  care  and  dili- 
gence," and  "the  highest  degree  of  care  and 
diligence,"  are  expressions  to  measure  the 
care  and  diligence  which  a  prudent  man 


would  exert  under  like  circumstances. 
Heucke  V,  Milwaukee  City  R.  Co.,b^  Wis, 
401,  34  A'.  W.  Rep.  243. 

12.  Care  required  flroin  engineer. 
— An  engineer  in  charge  of  a  running  train 
should  always  be  on  the  lookout  for  obstruc- 
tions, and  when  an  obstruction  is  discovered, 
no  matter  when  or  where,  should  promptly 
resort  to  all  means  within  his  power  known 
to  skilful  engineers  to  avert  the  threatened 
injury  or  danger;  less  than  this  \s  not  due 
diligence.  South  &' N.  Ala.  R.  Co.  v.  JVill- 
iams,  65  Ala.  74.  Wabash,  St.  L.  &*  P.  R. 
Co.  V.  Krough,  13  ///.  App.  431. 

The  law  imposes  upona  railroad  engineer 
the  exercise  of  judgment,  skill,  and  diligence 
in  running  his  engine,  and  though  he  may 
have  the  right  of  way  on  the  track,  he  ought 
not  to  run  his  train  as  if  no  other  train  were 
on  the  road,  nor  to  close  his  eyes  to  the 
hazards  of  delayed  trains,  open  switches, 
and  like  matters  incidental  to  the  operation 
of  railroads.  Smith  v.  Missouri  Pac.  R.  Co., 
1 13  Mo.  70,  20  S.  W.  Rep.  896. 

If  an  engine,  train,  and  appliances  be  in 
good  condition,  and  the  engineer  in  the  dis- 
charge of  his  duty  is  suddenly  confronted 
with  difficulty  and  danger  impossible  to  an- 
ticipate, he  is  only  required  to  act  with  ref- 
erence to  what  he  sees  and  knows.  The 
company  is  not  liable  for  his  failure  in  such 
emergency  to  exercise  cool  and  unembar- 
rassed judgment.  If  he  does  the  best  he 
can  situated  as  he  is,  nothing  more  can  be 
required.  Brookhaven  L.  &*  M.  Co.  v.  ////- 
nois  C.  R.  Co.,  68  Miss.  432,  10  So.  Rep. 
66. 

13.  Care  required  in  streets  and 
public  places.* — Railroad  companies,  ow- 
ing to  the  dangerous  character  of  the  busi- 
ness they  engage  in,  are  held  to  greater  care 
in  the  operation  of  their  machinery  and 
machines,  especially  in  running  through 
towns.  Little  Rock  ^  Ft.  S.  R.  Co.  v. 
Barker,  33  Ark.  350.  Indianapolis  Union 
R.  Co.  V.  Boettcher,  131  Ind.  82,  28  A'^,  E. 
Rep.  551.  Galveston,  H.  S'  S.  A.  R.  Co.  v. 
Matula,  79  Tex.  $77,  1 5  S.  W.  Rep.  573. 

And  this  whether  running  through  the 
densely  peopled  portion  of  a  town  or  its 
suburbs.  Hughes  v.  Galveston,  H.  &*  S.  A. 
R.  Co.,  34  Am,  iS"-  Eng.  R.  Cas.  66,  67  Tex. 
595,  4  .!).  W.  Rep.  219. 

A  person  in  the  lawful  use  of  a  street  is 


i 


•See  also  Streets  and    Highways,  369- 
371. 


7»f> 


NEGLIGENCE,  14-18. 


U 


entitled  to  protecttbii  us  against  any  negli- 
gent act  of  a  company  operating  cars  on 
the  street,  and  it  is  the  duty  of  the  company, 
in  the  exefcise  of  its  franchises,  to  use  all 
necessary  caution,  care,  and  diligence  to 
prevent  injury  to  persons  or  property. 
Maker  V.  Manhattan  li.  Co.,  53  Hun  506,  26 
N.  Y.  S.  A'.  742,  6  N.  y.  Supp.  309. 

14.  Care  due  toward  sick,  weak, 
mid  iiifirin  persons.— The  duty  of  care 
and  of  alpstaining  from  unlawfully  injuring 
another  applies  to  the  sick,  weak,  and  in- 
firm as  fully  as  to  the  strong  and  healthy. 
Lapleine  v.  Morgan's  L.  &r*  T.  A\  6-  S.  Co., 
37  Ai/t.  <S-  Ef'g.  A'.  Cas.  348,  40  La.  Ann. 
661, 1  L.  A\  A.  378, 4  So.  Kep.  875.— Doubt- 
ing Pullman  Palace  Car  Co.  v.  Barker,  4 
Colo.  344. 

15.  Condition  of  tracks.— A  com- 
pany by  accepting  its  ciiarter  assumes  the 
obligation  to  keep  its  tracks  in  safe  condi- 
tion for  the  operation  of  trains.  This  is  a 
duty  it  owes  to  all  persons  who  are  permit- 
ted by  it  to  travel  upon  or  operate  trains 
over  it.  Trinity  &*  S.  R.  Co.  v.  Lane,  79 
Tex.  643,  1 5  S.  IV.  Rep.  477. 

The  company,  being  the  owner  of  the 
road  as  well  as  of  the  cars,  is  bound  to  the 
same  care,  diligence,  and  skill  as  to  the  con- 
dition and  construction  of  the  road  as  it  is 
in  regard  to  the  cars.  Hanley  v.  Harlem 
R.  Co.,  I  Edm.  Sel.  Cas.  (N.  V.)  359. 

10.  Adoption  of  best  appliances.— 
It  is  the  duty  of  railroad  companies  to 
adopt  the  best  precautions  against  danger 
which  are  in  use,  and  to  procure  and  em- 
ploy good  and  safe  machinery  and  appli- 
ances, such  as  are  most  in  use,  and  approved 
by  tiie  skilful  a.rr*.  experienced  in  the  oper- 
ation '  :  nd  in  the  management  of 
:  Miiision  of  this  duty  is  at 
.gligence.  Alabama  G. 
.  Im.  &*  Eng.  R.  Cas. 
;e/lo  v.  Syracuse,  B.  &* 
65  iJdib.  (N.  F.)  92;  appeal 
dismissed  {?)  55  A'.   Y.  641,  vievi. 

It  is  the  duty  of  a  company  to  supply 
wants  and  adopt  improvements  in  its  con- 
struction as  such  wants  and  improvements 
may  be  known  and  their  importance  become 
manifest.  Gulf,  C.  &*  S.  F.  R.  Co.  v.  Mc- 
Gowan,  73  Tex.  355,  11  S.  IV.  Rep.  336. 

And  the  duty  of  a  company  to  use  all 
known  improvements  in  its  machinery  is 
not  confined  to  passenger  trains.  Costello 
V.  Syracuse,  B.  &>  X.  Y.  R.  Co.,6s  Barb.  (A'. 
Y.)  92;  appeal  dismissed  (.?)  55  A^.  Y.  641, 


rail'  1 

:S 

UKi    ^ 

Ic. 

r  1  e 

S.  K.  • 

./'. 

1, .    '"- ■ 

549.7' 

^i< 

A     '.: 

Al.   Y. 

R. 

Co.,  b 

;/w;/.— Following  Smith  v.  New  York  & 
H.  K.  Co.,  19  N.  Y.  127. 

If  they  are  obliged  to  have  some  brake, 
the  public  safety  requires  that  it  should  be 
the  best  in  use.  They  cannot  use  an  old 
brake  which  will  not  stop  a  train  in  less 
than  1000  feet,  when  running  ten  miles  per 
hour,  when  other  companies  use  brakes  that 
will  stop  a  train  in  500  feet,  running  at  the 
same  rate  of  speed.  Costello  v.  Syracuse, 
B.  &>  N.  Y.  R.  Co.,  65  Barb.  (N.  Y.)  92 ; 
appeal  dismissed  (?)  55  A'.  Y.  641,  mem. 

17.  Judgment  and  skill  in  selec- 
tion and  use  of  machinery.— Railroad 
companies  must  provide  good  and  sa(e  ma- 
chinery, constructed  of  proper  materials, 
and  free,  so  far  as  known  and  well-recog- 
nized tests  can  determine,  from  defects ; 
and  must  exercise  care  and  vigilance  in  ex- 
amining it,  and  keeping  it  in  proper  repair 
and  safe  condition  ;  and  must  employ  skilful 
and  experienced  servants.  And  they  are 
responsible  for  injuries  that  result  from  a 
failure  to  exercise  judgment  and  skill  in  the 
selection  of  material  in  the  construction  of 
their  machinery,  or  in  the  use  of  it  upon 
their  roads.  Illinois  C.  R.  Co.  v.  Phillips, 
49  ///.  234.— Distinguished  in  Pennsylva- 
nia Co.  V.  Lynch,  90  111.  333. — Houston  &» 
T.  C.  R.  Co.  v.  O'Hare,  64  Tex.  600. 

In  an  action  against  a  railway  company 
for  an  injury  alleged  to  have  been  caused  by 
its  negligence  in  using  machinery  with  a 
defect  which  should  have  been  discovered, 
the  question  is  whether,  practically,  and  by 
the  use  of  ordinary  care,  and  not  according 
to  evidence  of  a  scientific  nature,  the  defect 
ought  to  have  been  observed.  Stokes  v. 
Eastern  Counties  R.  Co.,  2  F.  6^  F.6<ji. 

18.  Tests  of  due  care  and  negli- 
gence.— What  constitutes  due  care  or, 
conversely,  amounts  to  negligence  depends 
in  every  case  on  the  circumstances  surround- 
ing the  party  whose  conduct  is  the  subject 
of  inquiry ;  and  while  he  is  required  to 
make  all  reasonable  efforts  to  ascertain  his 
environments,  he  may  then  safely  act  on 
appearances,  although  the  actual  facts  may 
be  different.  Highland  Ave.  &*  B.  R.  Co.  v. 
Donovan,  52  Am.  6-  Etig.  R.  Cas.  568,  94 
Ala.  299,  10  So.  Rep.  139.  Grand  Trunk  R. 
Co.  V.  Ives,  144  U.  S.  408,  12  Stip.  Ct.  Rep. 
679.— Followed  in  Vallance  v.  Boston  & 
A.  R.  Co.,  55  Fed.  Rep.  364.  Quoted  in 
Illinois  C.  R.  Co.  7/.  Foley,  53  Fed.  Rep. 
459.  lo  U.  S.  App.  537,  3  C.  C.  A.  589.— 

IVheaton  v.  North  Beach  &•  M.  R.  Co.,  36 


NEGLIGENCE,  i'J. 


T«l 


|ork& 

rake, 
Id  be 
n  old 
less 
es  per 
sthat 
at  the 
acitse, 
)92: 


Cal,  590.  Chicago,  B.  &*  Q.  K.  Co.  v.  OtvcH, 
2 1  ///.  App.  339.  Illinois  C.  R.  Co.  v.  Beard, 
49  111.  App.  232.  Philadelphia,  IV.  &^  B.  A\ 
Co.  V.  Kerr,  2^  Md.  521.  h' or  them  C.  R. 
Co.  V.  State,  29  Md.  420.— Reviewing 
Warren  v.  Fitchburg  R.  Co.,  8  Allen  (Mass.) 
227;  McGrath  v.  Hudson  River  R.  Co.,  32 
Barb.  (N.  Y.)  1^7.— Baltimore  &•  O.  R.  Co. 
V.  Keedy,  49  Am.  &*  Eng.  R.  Cas.  124,  75 
J/d.  320.  23  All.  Rep.  643.— Quoting  Balti- 
more &  O.  R.  Co.  V.  Fitzpatrick,  35  Md.  32. 
— Dickson  v.  Missouri  Pac.  R.  Co.,  104  Mo. 
491,  i65.  W.  Rep.  381.  Henry  v.  Grand  Ave. 
R.Co.,  Ill  Mo.  s^s,2iS.  IV.  Rep.  214.  New 
Jersey  Exp.  Co.  v.  Nichols,  33  N.  J.  L.  434 ; 
affirming  yi  N.  J.  L.  166.  Craven  v. 
Philadelphia  &*  R.  R.  Co.,  19  Phila.  (Pa.) 
409.  Simkins  v.  Columbia  &•  G.  R.  Co., 
19  Am.  &»  Eng.  R.  Cas.  467,  20  So.  Car. 
258.  Davis  V.  Columbia  <S>»  G.  R.  Co.,  28 
Am.  &•  Eng.  R.  Cas.  440,  21  So.  Car.  93. 

What  is  prudence  and  proper  care  under 
some  circumstances  may  be  negligence  in 
others,  and  so  negligence  in  danger  under 
some  circumstances  rtiay  be  regarded  as 
prudence  under  others.  Each  case  must 
depend  largely  on  its  own  facts,  IVabash, 
St.  L.  &»  P.  R.  Co.  V.  Wallace,  19  Am.  &• 
Eng.  R.  Cas.  359,  no  ///.  114. 

Negligence  cannot  be  imputed  to  one  who 
is  deceived  by  appearances  calculated  to  de- 
ceive an  ordinarily  prudent  man.  Chicago 
&^  E.  I.  R.  Co.  V.  Hedges,  25  Am.  &>  Eng. 
R.  Cas.  550,  105  Ind.  398,  7  A^.  E.  Rep.  801. 

The  standard  by  which  to  test  the  ques- 
tion of  negligence  vel  non  is  the  common 
experience  of  mankind,  and  implies  gener- 
ally the  want  of  that  care  and  diligence 
which  ordinarily  prudent  men  would  use  to 
prevent  injury  under  the  circumstances  of 
the  particular  case.  Southern  C.  P.  &*  M. 
Co.  v.  Bradley,  52  Tex.  587.  Gulf,  C.  <§>•  S. 
F.  R.  Co.  V.  Hodges,  76  Tex.  90,  13  S.  W. 
Rep.  64.— Quoting  Southern  C.  P.  &  M. 
Co.  V.  Bradley,  52  Tex.  599. 

The  question  of  negligence  is  to  be  de- 
termined by  the  consideration  whether  or 
not  a  party  has  guarded  against  those  things 
which  he  might  reasonably  have  cause  to 
anticipate.  Baltimore  &*  O.  R.  Co.  v.  Wheel- 
ing, P.  Sf  C.  Transp.  Co.,  32  Ohio  St.  1 16.— 
Quoting  Smith  v.  London  &  S.  W.  R.  Co., 
L.  R.  6  C.  P.  14. 

The  question  what  a  reasonable  man 
might  foresee  is  of  importance  in  deter- 
mining  the  question  of  negligence:  but 
when  the  act  complained  of  is  negligent 


per  se,  the  person  guilty  of  it  is  equally  lia- 
ble (or  its  lonsequences  whether  he  could 
have  foreseen  them  or  ncjt.  Seileck  v.  Lake 
Shore  tS^  M.  S.  R.  Co.,  93  Mich.  375,  53  N. 
W.  Rep.  556. 

In  order  to  impose  a  liability  on  a  railroad 
company  for  the  consequences  resulting 
from  the  omission  of  an  act  by  one  of  its 
employes,  the  test  is  not  whether,  had  the 
act  been  done,  the  accident  would  not  have 
occurred,  but  whether  the  act  omitted  was 
one  which  it  was  the  duty  of  the  employer 
to  perform.  I'relsen  v.  Southern  Pac.  Co., 
44  Am.  (S>*  Eng.  R.  Cas.  319, 42  Zd.  Ann.  673, 
7  So.  Rep,  800. 

The  rules  regulating  the  rights  and  duties 
of  persons,  natural  and  artificial,  to  each 
other  must  be  uniform;  they  cannot  vary 
according  10  the  years  or  degree  of  intellect 
of  natural  persons  without  producing  an 
uncertainty  in  the  law  destructive  of  all 
principle.  Bannon  v.  Baltimore  &>  O.  R. 
Co.,  24  Md.  108. 

The  terms  ordinary  and  reasonable  care 
are  relative  and  dependent,  and  whether 
such  care  has  been  used  can  only  be  deter- 
mined by  considering  the  age  and  capacity 
of  the  person  injured.  Baltimore  &•  O.  R. 
Co.  V.  State,  30  Md.  47. 

An  injury  arising  from  the  careless  and 
unskilful  management  of  an  animal  or  other 
personal  chattel  cannot  be  distinguished  in 
an  action  for  negligence  from  an  injury  re- 
sulting from  the  negligent  management  of 
fixed  real  property,  unless,  perhaps,  in  case 
of  a  nuisance.  Reedie  v.  London  &*  N.  W. 
R.  Co.,  6  Railw.  Cas.  184,  4  Ex.  244,  13  Jur. 
659,  20  L.  /.  Ex.  65. 

10.  Accidents  that  could  not  I>c 
foreseen— Unknown  dang:er8  or  de- 
fects.— A  person  in  control  of  premises  is 
responsible  for  such  defects  in  them  as 
would  be  likely  to  injure  any  one  properly 
using  them,  of  which  defects  he  had  notice, 
or  in  the  exercise  of  reasonable  care  would 
have  had,  but  he  is  n6  insurer.  The  duty 
is  to  exercise  reasonable  care.  Chicago 
Con.  Bottling  Co.  v.  Mil  ton,  41  ///.  App.  154. 
— Following  Borman  v.  Sandgren,  37  111. 
App.  160. 

An  injury  that  could  not  have  been  fore- 
seen or  reasonably  anticipated  as  the  prob- 
able result  of  an  act  of  negligence  is  not 
actionable.  Chicago.  St.  P.,  M.  &*  O.  R.  Co. 
v.  Elliott,  55  Fed.  Rep.  949. 

Railroad  companies  are  not  liable  for 
casualties  which   human    sagacity  cannot 


7HO 


78 


NEGLIGENCE,  20. 


:1 
■if 


:Si 


l|- 


foresee,  and  against  which  the  utmost  pru- 
dence cannot  guard.  Kentucky  C.  J\'.  Co.  v. 
Thomas,  79  Ky.  160.— Quoting  Smith  v. 
New  Yorit  &  N.  H.  R.  Co..  19  N.  Y.  127.— 
Sellars  v.  Kkhmond  &»  D.  R.  Co.,  25  Am.  &* 
Eiti,'.  A'.  Cits.  451,  94  N.  Car.  654.— Review- 
INO  Hardy  v.  North  Carolina  C.  R.  Co., 
74  N.  Car.  734 ;  Battle  v.  Wilmington  &  W. 
R.  Co.,  66  N.  Car.  343. 

A  distinction  should  be  observed  in  cases 
where  defective  conditionscausing  an  injury 
are  incident  to  the  original  construction, 
and  those  in  which  such  conditions  iiave 
arisen  afterward.  In  a  case  of  tiie  first  class 
notice  of  the  dangerous  condition  is  not  re- 
quired, while  in  a  case  of  the  other  class  a 
railroad  company  cannot  be  held  negligent 
and  liable  unless  it  had  reasonable  time  to 
discover  the  defect,  or  had  been  notified 
and  failed  to  repair  before  the  injury  oc- 
curred. Chicago,  B.  <&«•  Q.  K.  Co.  v.  Finch, 
42  ///.  App.  90. 

If  one  be  deaf  or  otherwise  deficient  in 
his  faculties  so  as  to  render  him  unconscious 
of  tiie  impending  danger,  knowledge  of  that 
infirmity  must  be  brought  home  to  those  in 
charge  of  the  train  before  they  or  the  rail- 
road company  can  be  made  liable  for  a  fail- 
ure to  check  the  train.  Johnson  v.  Louisville 
&•  N.  A\  Co.,  {Ky.)  13  Am.  &•  Eng.  R.  Cas. 
623. 

A  defendant  cannot  be  held  liable  for  the 
negligently  unsafe  condition  of  a  scuttle- 
hole  in  a  sidewalk  unless  he  knows  or  might 
have  known  thereof.  Benjamin  v.  Metro- 
politan St.  R.  Co.,  50  Mo.  App.  602. 

Where  the  agents  of  a  railway  company 
are  not  negligent  and  an  accident  is  caused 
by  the  act  of  a  trespasser,  of  which  act  the 
agents  had  no  knowledge,  the  company  is 
not  liable,  and  the  fact  that  a  trespass  has 
been  so  committed  imposes  no  obligation 
on  the  company  to  anticipate  a  second  or 
third  trespass.  Ebright  v.  Mineral  R.  &» 
M.  Co.,  {Pa.)  IS  All.  Rep.  709. 

■ 

2.   IVAat  Acts  Amount  to  Negligence. 

20.  Ill  general.*— It  is  negligence  as 
a  matter  of  law  for  railway  companies  not 

*  Negligence  in  the  use  of  wood  as  fuel  in  en- 
gines, see  note,  38  Am.  &  Eng.  R.  Cas.  348. 

Negligence  of  company  in  not  extinguishing  a 
fire,  see  38  Am.  &  Eng.  R.  Cas.  372,  ahitr. 

Not  knowing  of  washouts  and  warning  en- 
gineer, see  44  Am.  &  Ef<G.  R.  Cas.  505,  abstr. 

Running  train  without  sufficient  number  of 
brakemen,  see  note,  15  Am.  &  Eng.  R.  Cas.  486. 


to  use  the  precautions  for  safety  at  public 
crossings  definitely  prescribed  by  statute  or 
valid  municipal  ordinance.  Westtrn  &*  A. 
R.  Co.  V.  Youtig,  37  Am.  &•  Eng.  R.  Cas. 
489,  81  Ga.  397,  7  S.  E.  Rep.  912. 

TheGa.  Act  of  January  22,  1852,  imposing 
fines  for  the  non-performance  of  certain  re- 
quirements in  regard  to  blow  posts,  speed  at 
crossings,  etc.,  though  penal,  nevertheless  is 
so  far  applicable  to  a  civil  suit  for  a  personal 
injury  in  that  it  indicates  what  shall  consti- 
tute negligence  on  the  part  of  the  road. 
Augusta  &^  S.  R.  Co.  v.  AAElmu/ry,  24  Ca. 

75- 

It  is  negligence  for  persons  engaged  in 
loading  cars  on  a  track  to  put  a  cur  in  mo- 
tion without  making  provision  for  stopping 
it,  or  examining  to  see  whecher  the  brakes 
are  in  order,  or  whether  any  person  is  on  or 
about  other  cars  on  the  same  track ;  and  if 
injury  results  to  one  who  is  guilty  of  no  neg- 
ligence himself,  the  parties  putting  the  car 
in  motion  will  be  liable.  Xoble  v.  Cunning- 
ham,  74  ///.  5 1 . 

It  is  negligence  to  run  a  train  when,  be- 
cause of  the  coldness  of  the  weather,  all  the 
employes  on  the  train  are  upon  the  engine, 
and  the  only  means  used  for  checking  or 
stopping  the  train  are  such  as  can  be  com- 
manded and  used  by  the  engineer.  St.  Louis 
<S-  S.  E.  R.  Co.  v.  Mathias,  50  Ind.  65, 8  Am. 
Ry.  Rep.  381. 

A  detached  car  having  been  set  in  rapid 
motion  on  a  down  grade,  it  is  as  much  the 
duty  of  some  servant  of  the  company  to  be 
in  a  position  to  give  warning  of  its  approach 
and  to  control  its  movements  as  if  it  had 
been  attached  to  a  train  or  an  engine. 
Shelby  v.  Cincinnati,  N.  O.  &•  T.  P.  R.  Co., 
85  Ky.  224,  3  S.  W.  Rep.  157. 

The  negligence  of  the  company  as  to  the 
person  in  danger  is  imputable  to  the  com- 
pany with  respect  to  one  who  attempts  a 
rescue,  and  if  the  company  is  not  guilty  of 
negligence  as  to  such  person  in  danger,  then 
it  isonly  liable fornegligence  occurring  with 
regard  to  the  rescuer  after  the  attempt  to 
rescue  began.  Donahoe  v.  Wabash,  St.  L. 
&•  P  R.  Co..  83  .]fo.  560,  53  Am.  Rep.  594.— 
Approving  Eckert  v.  Long  Island  R.  Co., 
43  N.  Y.  502:  Linnehiin  v.  Sampson,  126 
Mass.  506 ;  Government  St.  R.  Co.  v.  Han- 
Ion,  53  Ala.  70.  Explaining  Evansville  & 
C.  R.  Co.  V.  Hiatt,  17  Ind.  102. 

It  is  negligence  on  an  engineer's  part  to 
back  his  train  against  wrecked  cars,  thereby 
injuring  platntifl,  though  he  may  not  have 


NEGLIGENCE,  21,  22. 


783 


seen  plaintiff's  signals  to  stop  nur  have  been 
intoxicated  at  the  time.  Williams  v.  Mis- 
souri Pac,  R.  Co.,  109  Mo.  475,  18  S.  W. 
Rep.  ioq8. 

The  rule  that  every  person  violating  an 
express  statute  is  a  wrong-doer,  and  as  such 
is  ex  necessitate  negligent  in  the  eye  of  the 
law,  and  that  every  innocent  person  who  is 
injured  thereby  is  entitled  to  a  civil  remedy 
for  such  injury,  notwithstanding  any  redress 
which  the  public  may  iiave  also,  applies  to 
railroad  companies  that  violate  a  statute  in 
the  manner  of  running  cars  on  a  street. 
Jetter  v.  A'ew  York  &>//.  R.  Co.,  2  Abb.  App. 
Dec.  {N.  J'.)  458.  2  Keyes  154.— Explained 
IN  Beisegel  v.  New  York  C.  R.  Co.,  14  Abb. 
Pr.  N.  S.  (N.  Y.)  29.  Quoted  in  Correll  v. 
Burlington,  C.  R.  &  M.  R.  Co.,  38  Iowa 
120. 

It  is  culpable  negligence  in  an  engineer 
after  seeing  a  person  in  a  dangerous  position 
on  the  track  to  back  down  upon  him  with- 
out looking  again  to  see  if  he  is  out  of  the 
way.  German  v.  Suburban  Rapid-Transit 
Co.,  13  N.  y.  Supp.  897 ;  affirmid  in  128  N. 
Y.  681,  mem.,  29  A^.  E.  Rep.  149,  mem. 

For  an  engineer  to  sleep  at  his  post  when 
on  a  siding  or  otherwise  is  itself  negligence. 
Com.  V.  Griffin,  7  Phila.  {Pa.)  679. 

Where  a  company  provides  a  single  track, 
and  makes  a  rule  that  trains  behind  time 
must  not  leave  a  station  without  sending  a 
flagman  ahead  and  running  slowly,  a  failure 
10  send  forward  a  flagman  is  sufficient  neg- 
ligence to  render  the  company  liable  for  an 
accident  that  results.  Texas  Sr'P.  R.  Co.  v. 
Mallon,  65  Tex.  1 1 5. 

in  an  action  against  a  railroad  for  a  per- 
sonal injury,  an  instruction  that,  if  the  com- 
pany undertook  to  manage  and  conduct  the 
running  of  its  trains  by  telegraph,  it  was 
bound  to  have  suitable  lines  and  operators, 
or  be  liable  for  injuries  occasioned  thereby, 
is  correct.  Grand  Trunk  R.  Co.  v.  Walker, 
25  Law.  Ed.(U.  S.)  977. 

21.  Defects  iu  track. — It  is  the  duty 
of  railroad  companies  to  keep  their  works 
and  all  portions  of  their  tracks  in  such  repair 
and  so  watched  and  tended  as  to  insure  the 
safety  of  all  who  may  lawfully  be  upon  them, 
whether  passengers  or  servants  or  others. 
And  if  they  fail  to  do  so,  they  will  be  held 
liable.  Lewis  v.  St,  Louis  &*  I.  M.  R.  Co., 
59  Mo.  495,  8  Am.  Ry.  Rep.  450.— Distin- 
guished IN  Smith  V.  St.  Louis,  K.  C.  &  N. 
R.  Co.,  69  Mo.  32. 

Companies  are  liable  for  all  defects  of 


which  they  have  knowledge,  or  which,  by 
the  use  of  reasonable  care  and  diligence, 
they  might  ascertain.  Lewis  v.  St.  Louis  &• 
/.  M.  R.  Co.,  59  Mo.  495,  8  Am.  Ry.  Rep. 
450. 

Where  the  evidence  tends  to  show  that 
an  accident  resulted  from  a  defective  track, 
and  does  show  that  the  contraction  and  ex- 
pansion of  rails  in  extremes  of  heat  and 
cold  is  from  three  fourths  to  one  inch  to  the 
rail,  and  that  defendant's  were  laid  down 
with  only  one  fourth  of  an  inch  between 
them,  it  is  sutlicient  evidence  of  negligence 
to  justify  a  jury  in  finding  against  the  com- 
pany. Reed  v.  New  York  C.  R.  Co.,  56  Barb. 
(A'.  Y.)  493 ;  reversed  in  45  A'.  Y.  575. 

Where  an  accident  is  the  result  of  the  de- 
railment of  an  engine,  and  the  evidence 
tends  to  show  that  there  was  a  depression 
in  the  track  which  caused  such  a  rocking 
and  swaying  of  trains  passing  over  it  as  to 
alarm  the  passengers,  and  that  the  defect 
had  existed  for  at  least  three  days,  and  that 
a  conductor  had  called  the  attention  of  the 
section  boss  to  it,  it  is  sutHcient  evidence  to 
support  a  verdict  finding  the  company  neg- 
ligent. W or  den  v.  Humeston  &•  S.  R.  Co., 
76  Iowa  310,  41  A^.  W''.  Rep.  26. 

An  accident  occurred,  caused  by  the 
breaking  of  a  rail  on  a  curve.  The  evi- 
dence showed  that  the  broken  rail  was  in- 
side the  curve,  and  that  it  was  old  and  very 
much  worn  and  battered  ;  that  it  was  a  "  U  " 
rail  next  to  a  "  T,"  and  that  the  train  was 
going  not  over  twenty  miles  an  hour.  Held, 
that  the  use  of  such  rail  was  sufficient  to 
show  gross  negligence  on  the  part  of  the 
company,  though  it  offered  some  evidence 
tending  to  show  that  the  break  was  caused 
by  a  hidden  defect  in  the  rail.  Taylor  v. 
Grand  Trunk  R.  Co.,  48  A^.  H.  304. 

22.  ObstriictioiM  on  the  track.— 
One  company  may  be  liable  to  another  for 
negligently  leaving  cars  on  a  side  track  so ' 
that  cars  cannot  pass  on  the  main  track  of 
the  other  company  without  causing  a  col- 
lision. Montgomery  &•  E.  R.  Co.  v.  Cham- 
bers, 79  Ala.  338. 

The  presence  of  a  freight  car  in  the  night- 
time in  the  way  of  an  approaching  train, 
with  no  explanation  except  that  it  was 
moved  from  a  side  track  by  the  force  of  the 
wind,  is  some  evidence  of  the  negligence  of 
the  railroad  company.  Webster  v.  Rome, 
W.  «S-  O.  R.  Co.,  115  A^.  Y.  112,  21  A^.  E. 
Rep.  725,  23  A^.  Y.  S.  R.  778 ;  affirming  40 
Hun  161. 


I 


•  84 


NEGLIGENCE,  23-25. 


23.  UHiiiiJp    defective   eiiKiiicM    or 

carN. — A  company  is  liable  in  damages  for 
injury  to  person  tir  property  caused  by  con- 
tinuing to  use  a  defective  engine  after  tiie 
defect  is  known  to  its  employes.  The  fact 
that  the  engine  became  out  of  repair  or  de- 
fective on  the  road  where  there  were  no  re- 
pair shops  or  facilities  for  repairing  it  will 
afford  no  excuse  if  its  use  was  persisted  in, 
whereby  injury  resulted.  It  should  be 
stopped  at  the  first  station  or  depot  after 
the  defect  rendering  its  use  dangerous  is 
discovered.  Texas  &^  /',  A'.  Co.  v.  Tankers- 
ley,  63  Tex.  57. 

It  is  negligence  on  the  part  of  a  company 
in  running  accommodation  trains  through 
a  city  to  a  fair  ground  in  the  suburbs,  where 
large  numbers  of  people  congregate  around 
the  station,  to  use  an  inferior  locomotive, 
run  by  a  fireman  instead  of  a  skilled  engi- 
neer, and  to  run  its  trains  at  a  dangerous 
speed  in  approaching  the  station.  Peyton 
V.  Texas  &*  P.  R.  Co.,  41  Am.  <S-  Etig.  A'. 
Cas.  550,  41  La.  Ann.  86i,  6  So.  Rep.  690. 

If  any  certain  and  satisfactory  test  of  the 
machinery  used  by  a  company  in  transpor- 
tation is  known  which  is  within  the  reach 
of  the  company  it  should  be  applied,  and  it 
is  negligence  in  the  company  to  rely  upon 
a  test  which  is  clearly  insufficient.  Texas 
&*  P.  R.  Co.  V.  Hamilton,  26  Am.  &•  Eng. 
R.  Cas.  182.66  Tex.  92. 

Permitting  the  use  of  a  hand-car  not  sup- 
plied with  the  most  efficient  brakes  will, 
where  an  injury  proximately  results  there- 
from, constitute  ordinary  negligence.  John- 
son V,  Gulf,  C.  &-  S.  F.  R.  Co.,  2  Tex.  Civ. 
App.  139,  21  S.  W.  Rep.  274. 

A  company  was  sued  for  injuring  stock 
on  the  track,  and  the  evidence  tended  to 
show  that  the  train  was  running  twenty-five 
miles  per  hour,  and  could  not  have  been 
stopped  in  less  than  120  yards,  and  that  the 
headlight  would  not  enable  the  engineer  to 
see  more  than  sixty  yards  ahead.  //>/</, 
that  it  was  negligence  in  the  company  not 
to  use  a  headlight  that  would  enable  the 
engineer  to  see  ahead  the  distance  in  which 
the  train  might  be  stopped.  Alabama  G. 
S.  R.  Co.  V.  Jones,  15  Am.  &*  Etig.  R.  Cas. 
549,  71  Ala.  487.— Followed  in  Alabama 
G.  S.  R.  Co.  V.  Moody,  92  Ala.  279. 

24.  Failure  to  give    signals.*— It 

•  See  also  Crossings.  Injuries,  etc,  at,  91- 
163;  Streets  and  H  igh ways,  332-335. 

Negligence  of  company  in  not  giving  signals, 
see  note,  49  AM.  &  Eng.  R.  Cas.  473. 


is  negligence  on  the  part  of  an  engineer 
running  a  train  to  omit  to  give  warning  by 
sounding  the  whistle  at  the  distance  •'e- 
quired  by  the  rules  of  the  company.  Bwion 
V.  Texas  &*  P.  R.  Co.,  42  La.  Ann.  350,  7 
So.  Rep.  682.  —  Approving  Continental 
Imp.  Co.  7K  Stead,  95  U.  S.  161. 

The  failure  to  ring  the  bell  is  negligence 
perse.  Gratiot  v.  M/ssoioi  I'ac.  A".  Co.,  55 
Am.  &*  Eng.  R.  Cas.  108,  1 16  Mo.  450,  21  .V. 
//'.  Rep.  1094. 

Under  Tex.  Rev.  St.  1879,  ait.  4232,  im- 
posing a  penalty  on  railroad  companies  for 
failure  to  ring  a  bell  or  sound  a  whistle  at 
road  and  street  crossings,  and  making  com- 
panies liable  for  all  damages  sustained  by 
reason  of  a  failure  to  comply  with  the  stat- 
ute, evidence  of  a  failure  to  comply  with 
these  requirements,  at  a  point  where  a  per- 
son is  injured,  is  prima  facie  evidence  of 
negligence,  and  makes  the  company  liable 
if  the  party  injured  was  without  fault.  Gulf, 
C.  <S-  S.  F.  R.  Co.  v,  Breitling,  (7Vm.)  12  S. 
IV.  Rep.  1 121. 

25.  Inefficient  lookout.*— The  look- 
out upon  a  locomotive  must  be  as  efficient 
as  the  circumstances  require,  and  especially 
so  when  the  chances  of  access  to  the  track 
are  greater  than  usual.  Marcott  v.  Mar- 
quette, //.  6-  O.  R.  Co.,  4  Am.  6-  Eng.  R. 
Cas.  548,  47  Mich,  i,  10  A'.   W.  Rep.  53. 

In  Mississippi  it  seems  that  an  engineer 
or  others  engaged  in  running  a  train  are  not 
required  to  keep  a  lookout  to  see  if  there  is 
any  one  on  the  track  except  at  public  cross- 
ings, in  incorporated  cities  or  towns,  and  at 
stations.  Farve  v.  Louisville  &*  JV.  R.  Co., 
42  Fed.  Rep.  441. 

Under  Tenn.  Code,  §  1166,  requiring 
every  company  to  keep  the  engineer,  fire- 
man, or  some  other  person  upon  the  loco- 
motive always  upon  the  lookout  ahead, 
a  trial  court  is  justified  in  instructing  the 
jury  that  "  it  is  the  duty  of  all  who  are  en- 
gaged in  running  trains,  in  whatever  de- 
partment they  may  be  employed,  to  give 
the  entire  energies  of  their  bodies  and 
minds  to  bring  into  requisition  all  means  at 
their  command  to  stop  the  train  as  soon  as 
possible  and  prevent  the  accident."  Louis- 
ville <S-  N.  R.  Co.  v.  Connor,  9  Heisk,  ( Tenn.) 
19,  19  Am.  Ry.  Rep.  368. 

A  slight  increase  of  danger  to  passengers 
is  no  excuse  for  not  following  the  positive 

•See  also  Crossings,  Injuries,  etc.,  at, 
104  167;  Streets  and  Highways,  338. 


NEGLIGENCE,  20,  27. 


786 


engineer 
irning  by 
tance  ••e- 
/>';  t-wn 
It.  350.  7 
iitiiieiilal 

enli>?ence 
A'.  Co.,  55 
+50.  21  .V. 

4:32,  im- 
)aiiies  for 

iiistle  at 
ciii>{  coni- 
tained  by 

the  stat- 
iply  with 
ere  a  per- 
idence  of 
any  liable 
till.  Gulf, 
'ex.)  12  5. 

The  look- 
s  efficient 
especially 
the  track 
t  V.  Mar- 
••  Eng.  A'. 

fp-  53- 

n  engineer 

ain  are  not 

if  there  is 

iblic  cross- 

vns,  and  at 

N.  A'.  Co.. 

.  requiring 
jineer,  fire- 
i  the  loco- 
)ut  ahead, 
ructing  the 
fho  are  en- 
latever  de- 
:d,  to  give 
>odies  and 
ill  means  at 
I  as  soon  as 
It."  Louis- 
'isk.(Tenn.) 

I  passengers 
the  positive 

S,     ETC.,     AT, 

AYS,  338. 


mandates  of  the  statute.  Nor  will  em- 
ployes be  heard  to  excuse  themselves  from 
obeying  its  positive  requirements  by  a  tnere 
expression  of  opinion  that  to  do  so  would 
endanger  the  passengers.  The  nature  and 
extent  of  the  danger  must  be  clearly  shown. 
Louisville  &*  N,  A'.  Co.  v.  Connor,  9  Heisk. 
(Tenn.)  19,  19  Am.  Ay.  Acp.  368. 

2U.  Fiiiluru  to  use  due  euro  alter 
(liMvuvcry  of  iiiiiieiidliiK:  danger.  — 
Reasonable  prudence  on  the  part  of  the  com- 
pany after  the  discovery  of  Impending  dan- 
ger will  not  relieve  from  liability,  where  it 
has  contributed  directly  to  bring  about  the 
danger  by  negligence.  Grand  Rapids  <S>«  /. 
A.  Co.  V.  Ellison,  39  Am.  &*  Eng.  A.  Cas. 
480.  117  Ind.  234,  20  i\.  E.  Rep.  135. 

In  a  suit  for  injury  caused  by  the  negli- 
gent running  of  a  train— //t/(/,  that  if,  after 
the  impending  danger  became  known  to  de- 
fendant, it  failed  to  use  such  ordinary  care 
as  would  have  prevented  the  injury,  and 
injury  resulted  as  a  consequence  thereof, 
it  was  liable.  This  liability  would  be  in- 
creased if,  under  such  circumstances,  the 
injury  was  inflicted  wilfully  and  wantonly 
in  a  manner  showing  a  reckless  disregard 
of  life  or  property.  Houston  &*  T.  C.  A. 
Co.  V.  Smil/i,  52  Tex.  178. 

27.  Uiiiiiiiii{;  at  e.\cessive  speed, 
fjeiierally.* — A  company  is  liable  for  any 
casualty  which  may  occur  from  running 
with  greater  speed  than  is  prudent,  or  on 
account  of  collisions  with  obstructions 
which  the  engineer  or  conductor  saw  or 
might  have  seen,  or  which  he  might  have 
avoided  by  the  most  skilful  and  prompt 
use  of  all  the  means  in  his  power.  Nash- 
ville (S>»  C.  R.  Co.  V.  Messino,  i  Sneed  ( Tenn.) 
220. 

A  company  is  liable  if  an  accident  could 
have  been  avoided  by  the  use  of  ordinary 
care  had  the  engine  been  running  at  a  law- 
ful rate  of  speed.  Sullivanw.  Missouri Pac. 
A.  Co.,  117  Mo.  214,  23  S.  JV.  Rep.  149. 

Wher*^  the  evidence  shows  that  a  freight 
tram  was  run  at  an  excessive  speed,  the 
conclusion  is  justified  that  it  was  negli- 
gence, and  the  proximate  cause  of  a  colli- 
sion with  a  hand-car  running  over  the  road 
in  advance  of  the  train.  Slel/e  v.  Great 
Northern  R.  Co..  53  Mitm.  341,  55  N.  IV. 
Rep.  137. 

*  See  also  Crossings,  Injuries,  etc,  at, 
108-180. 

Speed  of  trains  as  bearincr  on  the  subject  of 
negligence,  see  note,  8  AM.  &  Eng.  R.  Cas.  381. 
6  D.  R.  D.— 50 


It  is  negligence  not  to  slacken  the  speed 
of  a  train  so  that  it  can  be  stopped  if  neces- 
sary, if  the  engineer  has  seen  an  object  on 
the  track  a  long  way  off,  and  cannot  tell 
what  it  is.  Keyser  v.  Chicago  «S-  G.  T.  A. 
Co.,  19  Am.  (S-  Eng.  A.  Cas.  91,  56  Mich. 
559,  56^/;//.  Aep.  405,  23  A'.  W.  Aep.  311. 

A  train,  going  much  faster  than  its  rules 
permitted  on  approaching  a  bridge,  and 
failing  to  sound  a  whistle,  .is  required,  ran 
down  a  hand-car,  injuring  plaintiff.  Held, 
that  there  was  negligence,  and  that  failure 
of  the  hand-car  to  send  back  a  flagman  was 
immaterial.  International  &*  G.  A'.  A.  Co. 
v.  Gray,  27  Am.  &'  Eng.  A.  Cas.  31 8,  65 
Tex.  32. 

It  is  gross  and  criminal  negligence  in  a 
company  to  run  a  train  througli  a  village  at 
night  at  a  high  rate  of  speed,  without  head- 
lights or  other  signal  of  its  approach.  In- 
dianapolis (S-  St.  L.  R.  Co.  v.  Galbreath,  63 
///.  436,  7  Am.  Ay.  Rep.  128.  —  Distin- 
OUISHEU  IN  Illinois  C.  R.  Co.  v.  Hetliering- 
ton,  83  111.  $io.~Beche  v.  Missouri  Pac.  R. 
Co.,  45  Am.  &*  Eftg.  R.  Cas.  174,  102  Mo. 
544,  135.  IV.  Rep.  1053. 

Under  Miss.  Code  1880,  §  1047,  limiting 
the  rate  of  speed  at  which  trains  may  run 
through  incorporated  places,  a  company  is 
liable  for  an  accident  which  results  by  run- 
ning a  locomotive  at  a  greater  rate  of  speed 
than  the  limit  fixed,  although  it  is  checked 
just  before  the  accident,  and  the  collision 
occurs  when  the  train  is  not  exceeding  the 
limit.  New  Orleans,  M.  tS-  T.  R.  Co.  . 
Toulmi,  59  Miss.  284. 

A  railroad  company  may  be  chargeable 
with  negligence  in  running  its  train  through 
a  city  at  a  rate  of  speed  greater  than  that'- 
permitted  by  a  city  ordinance,  although  be- 
fore the  passage  of  the  ordinance  the  road 
was  built  on  a  grade  and  curve  which  ren- 
der it  Impracticable  to  comply  with  the 
ordinance.  Neier  v.  Missouri  Pac.  R.  Co., 
1 2  Mo,  App.  25. 

A  company  was  sued  for  causing  an  acci-- 
dent  by  improperly  running  a  freight  tniin 
past  a  station,  and  in  defense  gave  evidence 
that  the  engineer  attempted  to  stop  the 
train  on  approaching  the  station  by  revers- 
ing the  lever  and  shutting  off  the  steam, 
but  was  temporarily  disabled  by  a  blow  re- 
ceived from  the  lever,  which  slipped  from 
its  position  and  struck  him.  Expert  evi- 
dehce  was  given  tending  to  show  that  such 
accident  could  not  occur  if  the  lever  was 
properly  reversed   unless  there  was  some 


i 


786 


NEGLIGENCi::,  28,  2». 


II 


.'ill 

I 


m' 


m 


defect  in  the  lever  or  appliances.  //•■/•/,  not 
milficient  to  excuse  the  company  from  the 
cliurfje  of  nenliKence.  J'ursoiis  v,  .Xaw  ]'tiri' 
C.  *3-  //.  A",  a:  Co.,  113  N.  )'.  355.  21  A'.  K 
Kep.  145.  22  ;V.  Y.  S.  A'.  697,  3  L.  A'.  A.  683 ; 
affirming  48  Hun  615.  15  A'.   J'.  S,  A'.  1016, 

28.  irr<'M|>cc*tiveot'Mtateor  mii- 

iiiciiml  rt'tiriilatioii.'*'— It  is  the  duty  of  u 
railroad  company  whose  road  runs  through 
a  city  or  village  to  run  its  trains  therein  at 
such  a  rate  of  speed  as  to  have  them  under 
control,  and  be  able  to  avoid  injury  to  per- 
sons or  property,  though  there  is  no  ordi- 
nance of  such  village  on  the  subject ;  and  if 
It  fail  to  do  so.  it  is  guilty  of  negligence. 
Chicago  <S-  A.  A'.  Co.  v.  EngU,  84  ///.  397. 
16  Atn.  Ky.  Rep.  490.  Barley  v.  Chicago  &• 
A.  R.  Co.,  4  Biss.  (U.  S.)  430.  Elgin,  J.  <S- 
E.  R.  Co.  V.  Raymond,  148  ///.  241.  35  iV.  E. 
Rep.  729. 

If  ordinary  care  and  prudence  and  due 
regard  for  the  safety  of  third  persons  re- 
quire engines  and  trains  to  be  run  at  a  less 
rate  of  speed  than  that  limited  by  an  ordi- 
nance of  the  city,  the  company  must  observe 
such  care  and  prudence.  Shaber  v.  St.  Paul, 
M.  <S-  M.  R.  Co.,  2  Am.  &•  Eng.  R.  Cas. 
185,  28  Minn.  103.  9  A^.  n\  Rep.  575.— Dis- 
tinguished IN  Loucks  V.  Chicago,  M.  & 
St.  P.  R.  Co.,  19  Am.  &  Eng.  R.  Cas.  305,  31 
Minn.  126.— Chicago,  B.  5-  Q.  R.  Co.  v. 
Dougherty,  \2  III.  App.  181.  Chicago,  St. 
L.  Sf*  P.  R.  Co.  V.  Spilker,  55  Am.  &*  Eng. 
Ji.  Cas.  200.  134  Iitti.  380,  33  ^-  £•  i^ep-  280. 
Alabama  &*  V.  R.  Co.  v.  Phillips,  70  Miss. 
14.  II  So.  Rep.  602. 

Railway  companies,  in  the  absence  of 
statute  or  ordinance,  are  bound  by  the  rules 
of  the  common  law  to  exercise  their  fran- 
chises with  a  due  regard  to  the  interests, 
welfare,  and  safety  of  the  public.  They  are 
not  at  liberty  to  adopt  the  same  rates  of 
speed  in  a  densely  settled  city  as  in  the 
country.  Chicago  &>  N.  W.  R.  Co.  v.  Dun- 
leavy,  39  Am.  &*  Eng.  R.  Cas.  381.  129  ///. 
1 32,  22  A^.  E.  Rep.  1 5 ;  affirmitig  27  ///.  App. 
438.     Meyer  v.  Midland  Pac.  R.  Co.,  2  Neb. 

A  railway  company  may  not  run  its  trains 
in  a  populous  city  at  the  same  rapid  rate  of 
speed  it  may  in  the  country  and  escape  liabil- 
ity on  the  ground  that  it  may  run  such  trains 
at  any  rate  it  chooses.  Cleveland,  C,  C.  &* 
I.  R.  Co.  V.  Harrington,  49  Am.  &*  Eng.  R. 


*  See  also  post,  42. 


Cas.  358,  131  Ind.  426,  30  A'.  E.  Rep.  yj. 
St.pp  V.  Chictigo,  R.  1.  i5-  P.  R.  Co.,  85  Mo. 
229. 

Where  a  train  is  run  through  a  populous 
city  at  an  unusual  hour,  it  is  incumbent  on 
its  employes  to  take  unusual  precautions  to 
avoid  accidents,  and  a  failure  to  do  so  will 
authorize  a  jury  to  infer  negligence.  Karle 
V.  Kansas  City,  St.  J.  &*  C.  B.  A'.  Co.,  55  Mo. 
476. — Followed  in  Uowma.  v.  Chicago  & 
A.  R.  Co.,  85  Mo.  533.  yuoTED  in  Stone- 
man  v.  Atlantic  &  P.  R.  Co.,  58  Mo.  503; 
Zimmerman  v.  Hannibal  &  St.  J.  R.  Co., 
2  Am.  Ik.  Eng.  R.  Cas.  191,  71  Mo.  476. 

Nothing  will  justify  or  excuse  running  a 
train  at  a  high  rate  of  speed  when  the  track 
is  known,  or  might,  by  the  exercise  of 
proper  care,  skill,  and  diligence,  be  known, 
to  be  in  a  dangerous  condition.  Chicago,  P. 
**  St.  L.  R.  Co.  V.  Lewis,  145  ///.  67, '33  A'. 
E.  Rep.  960. 

In  the  absence  of  any  statute  or  ordinance 
regulating  the  speed  of  trains  in  villages,  it 
cannot  be  said  as  a  question  of  law  that 
there  is  nr>  law  imposing  a  rule  as  to  the  rate 
of  speed  of  trains.  What  is  a  proper  rate 
of  speed  is  for  the  jury,  varying  with  the 
circumstances  of  each  case.  McDonald  v. 
International  «S-  G.  N.  R.  Co.,  (Tex.  Civ. 
App.)  20  .V.  W.  Rep.  847. 

What  the  limit  is  depends  on  circum- 
stances very  largely,  such  as  the  condition 
of  the  roadbed,  the  weight  and  strengtii  of 
the  rails,  and  the  character  and  condition  of 
the  rolling  stock.  Chicago,  P.  <S-  St.  L.  A*. 
Co.  v.  Lewis,  48  ///.  App.  TTji,. 

A  company  should  regulate  its  own  rate  of 
speed  as  regards  others  than  passengers,  and 
in  so  regulating  it  there  must  not  only  be  a 
careful  regard  for  passengers  and  trains,  but 
also  a  proper  regard  for  human  life  and 
property  in  running  through  towns  and 
cities  even  where  there  are  no  public  cross- 
ings. Pry  or  v.  St.  Louis,  K.  C.  &>  N.  R.  Co., 
69  Mo.  215. 

29.  Biiiining  at  proliiblted  rate  of 
speed  within  city  liinits  is  negligence 
per  se.* — Running  a  train  through  the  cor- 
porate limits  of  a  city  at  a  greater  rate  of 
speed  than  that  prescribed  by  statute  or  the 
city  ordinance,  where  the  ordinance  is  not 
shown  to  be  unreasonable,  is  per  se  culpable 
negligence.  South  &*  N.  Ala.  R.  Co.  v. 
Donovan,  36  Am.  &*  Eng.  R.  Cas.  151,  84 
Ala.  141.  4  So.  Rep.  142.— FOLLOWING  Got- 

*  See  also  post,  41 . 


lHv 


NEGLIGENCE,  30,  31. 


w 


I  rate  of 
rliffcnce 

1  thecor- 
!r  rate  of 
ite  or  the 
ce  is  not 
f  culpable 
R.  Co.  V. 
s.  151.  84 
nuG  Got- 


hard  v.  Alabama  G.  S.  R.  Co.,  67  Ala.  113. 
—L'one//v.  liioiinjitoit.  C.  A",  t^  .1/.  A'.  Co., 
38  /o7va  120.— DiSAHPKOViNii  Brown  v, 
Hudalo  &  S.  L.  R.  Co.,  23  N.  Y,  191.  Foi.- 
LOW  I  NO  Dodge  ^'.  UiirlinKton,C.  R.&M.R. 
Co.,  u  Jow»  276.  yutniNO  Jotter  v.  New 
Y(.ik"&  H.  R.  Co.,  2  Kcyt's  (N.  Y.)  154.- 
I)IM'IN(IUISHKI)  IN  Lynch  z/.  Metropolitan 
.St.  K.  Co.,  112  Mo.  420.  QU(nKi>  IN  Den- 
ver, T.  &  G.  R.  Co.  V,  Robbing,  2  Colo.  .App. 
313. — AV/'///  V.  Union  A'.  »!r*  7'.  Ci;.,  90  Afo, 
314,  2  ..v.  //'.AV/.  427.— Followed  IN  Eswin 
V,  Si.  Louis,  1.  M.  Si  S.  R.  Co.,  35  Am.  & 
Eng.  R.  Cas.  390,  96  Mo.  290,  9  S.  W.  Rep. 
577. —  ll'ibcr  V.  Kansas  City  Cable  A'.  Co.,  41 
^lin.  &*  J£>fg.  A'.  Cas,  117,  100  Mo.  194,  12  S. 
W.  AV/.  804,  13  .v.  /F.  AV/.  587,  7  Z.  A\  A. 
819.     Kellny  v.  Missouri  Pac.  A'.  t'<;.,  43  /!«/. 

&-  EhjT.K.  Cas.  186,  101  j/tf.  67,  13  i'.  ;r. 

AV/.  806.  Gratiot  v.  Missouri  Pac.  A'.  Co., 
55  ///«.  6-  /i/^^.  P.  Cas.  108,  116  il/<>.  450,  21 
.V.  ff.  AV/.  1094.  Texas  6-  />.  A'.  Co.  v. 
Cockrdl,  2  TtU".  .,'///.  (tVz/.  CWf.)  629.  yz/tr 
V.  Chicago,  M.  i^  St.  P.  R.  Co.,  77  Wis. 
247,  46  N.  IF.  Rep.  165. 

VVliere  there  are  limitations  by  statute  or 
local  ordinance,  a  rate  of  speed  greater  than 
that  prescribed  is  gross  negligence.  Klanow- 
skiv.  Grand  Trunk  R,  Co.,  21  Am.  &•  Eng. 
R.  CVjJ.648,  57  Mich.  525,  24  N.  W.  Rep.  801. 
Chicago  Sf'  A.  R.  Co.  v.  Becker,  84  ///.  483. 

And  if  any  one  is  injured  in  consequence 
of  such  negligence  without  being  himself 
guilty  of  contributory  negligence,  he  may 
recover  damages.  Pennsylvania  Co.  v.  Hor- 
ton.  132  Ind.  189,  31  A^.  E.  Rep.  45. — Fol- 
lowing St.  Louis  &  S.  E.  R.  Co.  v.  Mathias, 
50  Ind.  65;  Pennsylvania  Co.  v.  Hensil,  70 
liul.  569;  Pennsylvania  Co.  v.  Stegemeier, 
iiS  ind.  305. 

And  the  negligence  of  the  company  will 
be  considered  as  the  direct  cause  of  the  in- 
jury. Gratiot  v.  Missouri  Pac.  R.  Co.,  {Mo.) 
49  Am.  &•  Eng.  R.  Cas.  398,  16  S.  W.  Rep. 
384.  Schlereth  v.  Missouri  Pac.  R,  Co.,  96 
Mo.  509,  10  S.   W.  Rep.  66. 

It  is  negligence  in  a  company  to  run  its 
trains  in  a  city  in  violation  of  an  ordinance 
requiring  light  upon  cars,  etc.,  moving  at 
night,  and  regulating  their  speed.  Easley 
V.  Missouri  Pac,  R.  Co.,  113  Mo.  236,  20  S. 
W.  Rep.  1073. 

Whether  the  violation  of  a  municipal  or- 
dinance regulating  the  rate  of  speed  is,  as 
matter  of  law,  negligence,  quare.  Massoth 
V.  Delaware  &■»  H.  Canal  Co.,  64  A';  Y.  524 ; 
affirming  6  Hun  314.— OVERRULING  Brown 


V.  Buffalo  &  5.  L.  R.  Co.,  22  N.  Y.  191. 
Revikwino  Ncwson  v.  New  York  C.  R.  Co., 
29  N.  Y.  383;  Beisegel  v.  New  York  C.  R. 
Co..  14  Abb.  Pr.  N.  S.  (N.  Y.)  29;  McGrath 
V.  New  York  C.  &  H.  R.  R.  Co.,  63  N.  Y. 
522. 

UO.  ItiiuuiiiK  lit  iiiiiiMiinl  or  pro- 
liibituU  rtitu  of  Mpeed  it*  cvideneo  of 
"vtrlitfeiice.— Some  authorities  hold  that 
the  running  of  trains  within  the  limits  of  a 
city  at  a  speed  greater  than  is  allowed  by 
ordinance  is  negligence /fr  se,  but  the  better 
and  more  generally  accepted  rule  is  that 
such  an  act  on  the  part  of  the  company  is 
to  be  construed  by  the  jury  as  a  circum- 
stance from  which  negligence  may  be  in- 
ferred. Grand  Trunk  R.  Co.  v.  Ives,  144  U, 
S.  408,  1 2  Sup.  Ct,  Rep.  679.  Chicago  6-  A'. 
W.  R.  Co.  V.  Duiileavy,  39  Am.  &*  Eng.  R. 
Cas.  381.  129  ///.  132,  22  A',  E.  Rep.  15;  af- 
firming 27  ///.  App.  438.  Arts  V.  Chicago, 
R.  I.  &-  P.  R.  Co.,  44  Iowa  284. 

Running  an  engine  at  a  rate  of  speed 
prohibited  by  ordinance  is  evidence  of  neg- 
ligence. Mahan  v.  Union  Depof  S.  R.  &^  T. 
Co.,  34  Minn.  29,  24  A'.  W.  Rep,  293.  Mc- 
Leod  V.  Ginther,  80  Ky.  399.  —  Distin- 
guished IN  Louisville  &  N.  R.  Co.  v. 
Marriott,  (Ky.)  19  Am.  &  Eng.  R.  Cas.  509. 

The  violation  of  a  municipal  ordinance 
limiting  the  rate  of  speed  is  evidence  of 
negligence  when  the  ordinance  is  not 
pleaded,  though  in  such  case  it  does  not 
amount  to  negligence  per  se.  Windsor  v. 
Hannibal  &•  St.  J.  R.  Co.,  45  Mo.  App.  123. 
—Applying  Robertson  v.  Wabash,  St.  L. 
&  P.  R.  Co..  84  Mo.  119. 

While  failure  of  a  train  to  comply  with 
statutory  requirements  as  to  speed,  etc., 
does  not  necessarily  make  the  railroad  liable 
for  an  injury,  yet  it  constitutes  a  prima  facie 
case.  Augusta  6>»  S.  R.  Co.  v.  McElmurry, 
24  Ga.  75. 

It  is  some  evidence  of  negligence  to  show 
that  a  company  ran  its  engine  through  the 
streets  of  a  city  at  a  speed  prohibited  by  a 
city  ordinance,  although  the  ordinance  pre- 
scribes only  a  penalty  for  its  violation.* 
Beisegel  v.  New  York  C.  R.  Co.,  14  Abb.  Pr. 
N.  S.  (N.  Y.)  29.— Explaining  Jetterv. 
New  York&  H.  R.  Co.,  2  Keyes  (N.  Y.)  154. 
Overruling  Brown  v.  Buffalo  &  S.  L.  R. 
Co.,  22  N.  Y.  191. — Reviewed  in  Massoth 
V.  Delaware  &  H.  Canal  Co.,  64  N.  Y.  524. 

31.  Unusual,  improper,  or  prohib- 
ited rate  of  speed  at  crossings.— When 
no  restriction  by  statute  exists,  an  unusual 


iH 


^H1     iifij 


I  i 


M'    tl 


■ 


i 


788 


NEGLIGENCE,  33. 


rate  of  speed  at  crossings  must  be  held  to 
impose  upon  the  company  increased  vigi- 
lance as  well  as  increased  liability.  Klaiiow- 
skiw.  Grand  Trunk  Ji.  Co.,  21  Am.  &<•  Eng. 
Ji.  Cas.  64S,  5/  Mu/i.  525, 24  N.  W.  Rep.  80:. 
— Disapproving  McKonkey  v.  Chicago,  B. 

6  Q.  R.  Co.,  40  Iowa  206.  Distinguishing 
Grand  Rapi(^s  &  I.  R.  Co.  v.  Huntley,  38 
Mich.  540. 

The  giving  of  the  signals  required  by  law 
upon  a  train  approaching  a  street  crossing 
does  not,  under  aM  circumstances,  render  the 
company  free  from  negligence.  Where  the 
evidence  tends  to  show  that  the  train  was 
being  run  at  an  undue,  improper,  and  highly 
dangerous  rate  of  speed  through  a  city  or 
village,  the  question  of  negligence  is  for  the 
jury.  Thompson  v.  New  York  C.  &"  H.  R. 
R.  Co.,  1 10  N.  v.  636,  2  S//V.  App.  82,  17  N. 
E.  Rep.  690,  13  Cent.  Rep.  240,  16  ^V^.  Y.  S. 
R.  869;  reversing  33  Htm  16. — Applied  in 
Miller  v.  New  York  C.  &  H.  R.  R.  Co.,  20 
N.Y.  Supp.  163. 

While  running  a  train  at  a  prohibited  rate 
of  speed  without  warning  or  signals  over  a 
public  crossing  may  be  only  simple  negli- 
gence, yet,  if  there  is  evidence  that  such 
train  was  run  backward  at  a  speed  of  twenty- 
five  or  thirty  miles  per  hour  without  signal 
or  warning  over  a  street  crossing  much  fre- 
quented by  the  public  in  a  populous  city,  an 
ordinance  of  which  pronibited  trains  from 
backing  at  a  greater  speed  than  four  miles 
an  hour,  which  circumstances  were  known 
to  those  in  charge  of  the  train,  and  injury 
resulted  therefron  t  is  properly  submitted, 
to  the  jury  to  dec.^i ;  whether  such  conduct 
is  the  equivalent  of  intentional  wrong. 
Louisville  6-  N.  R.  Co.  v.  lVeM,g7  Ala.  308, 
12  So,  Rep.  374. 

3.    What  Acts  do  Not  Amount  to  Negligence, 

32.  Ill  general.— A  railroad  company 
having  the  rigiit  to  run  its  engines  by  steam 
is  not  liable  for  damages  accruing  in  the 
exercise  of  its  legal  rights  unless  such  dam- 
ages are  caused  by  the  company's  negli- 
gence, the  burden  of  proving  the  negligence 
being  on  the  plaintiff.  Bernard  v.  Rich- 
mond, F.  &-  P.  R.  Co.,  85  Va.  792,  8  5.  E. 
Rep.  785.  Williams  v.  Michigan  C.  R.  Co., 
2  Mich.  259.— Criticising  Griffin  t;.  Martin, 

7  Barb.  (N.  Y.)  297.  FOLLOWING  Tona- 
wanda  R.  Co.  v.  Munger,  5  Den.  (N.  Y., 
255.— Disapproved  in  Jackson  v.  Rutland 
&  B.  R.  Co.,  25  Vt.  150. 


The  use  of  appliances  which  are  in  uni- 
versal and  common  use  for  the  same  purpose 
cannot  be  said  to  be  negligence.  Wer- 
bowlsky  V.  Ft.  Wayne  &•  E.  R.  Co.,  86  Mich. 
236,  48  A^.  W.  Rep.  1097.  La/Jiin  v.  Buffalo 
&>  S.  W.  R.  Co.,  30  Am.  »S^»  E/ig.  R.  Cas.  596, 
106  N.  Y.  136,  7  Cent.  Rep.  793,  12  N.  K. 
Rep.  599.  8  N.  Y.  S.  R.  596 ;  reversing  36 
Hun  638,  mem. 

The  mere  constructing  of  a  railwiiy  in 
close  proximity  to  a  highway  is  not  of  itself 
an  ;\ct  of  negligence.  Such  increase  of  dan- 
ger is  iiecfjssarily  incident  to  and  attendant 
upon  this  in-proved  mode  of  transportation. 
Beatty  v.  Central  Iowa  R.  Co.,  8  Am.  Sf* 
Eng.  R.  Cas.  210,  58  /owa  242,  ,12  N.  W. 
Rep.  332. 

The  reversal  of  an  engine  in  switching 
and  in  making  up  trains  is  not  negligence 
per  se,  and  negligence  is  never  presumed 
without  proof,  but  in  all  cases  must  be 
proved.  Jackson  v.  Kansas  City,  L.  &>  S. 
K.  R.  Co.,  15  Am.  &r'  Eng.  R.  Cas.  178,  31 
/Can.  761,  3  Pac.  Rep.  501. 

The  mere  act  of  running  a  train,  after  a 
severe  storm,  by  the  engineer  and  the  de- 
ceased did  not  constitute  negligence  on 
their  part.  Stoher  v.  St.  Louis,  I.  M.  &>  S. 
R.  Co.,  105  Mo.  192,  J  6  S.  W.  Rep.  591. — 
Applying  McPherson  v.  St.  Louis,  I.  M.  & 
S.  R.  Co.,  97  Mo.  255. 

It  is  not  negligence /^-r  se  for  a  railroad  to 
have  three  freight  trains  reach  a  station  at 
one  time,  at  which  station  a  passenger-train 
with  right  of  way  is  about  to  pass,  provided 
proper  precautions  are  taken  for  the  safety 
of  the  employes  and  passengers.  Smith  v. 
Missouri  Pac.  R.  Co.,  113  Mo.  70,  20  .S".  W. 
Rep.  896, 

The  mere  fact  that  a  car  of  a  railroad 
company  in  the  city  of  New  York  is  pro- 
ceeding upon  the  left-hand  track  will  not, 
of  itself,  charge  the  company  with  fault  and 
subject  it  to  damages  resulting  from  an  ac- 
cident. Altreuler  v.  Hudson  River  R.  Co.,  2 
E.D.  Smith  (N.  Y.)  151. 

Where  a  company  lays  its  tracks  on  its 
own  land,  it  may  decide  on  which  one  it 
will  run  trains,  and  running  them  on  the 
track  nearest  the  house  of  an  adjacent 
owner  is  no  evidence  of  negligence.  Flinn 
V.  New  York  C.  &»  H.  R.  R.  Co.,  34  A^.  Y. 
S.  R.  451,  58  Hun  230,  12  A''.  Y.  Supp.  341. 

In  an  action  for  a  personal  injury  based 
on  the  alleged  negligence  of  the  defendant 
in  building  a  switch  too  near  to  a  cattle- 
guard — held,  that  the  mere  fact  that  another 


'^'W 


NEGLIGENCE,  33-35. 


r89 


ire  in  uni- 
ne  purpose 
;e.  If  Vr- 
).,  86  Mu/t. 
V.  Buffalo 
i.  t'as.  596, 
1 2  A'.  E. 
'vcrstnt^  36 

railway  in 
ot  of  i  ISC  If 
ase  of  dan- 
i  attendant 
sportaiion. 
8  Am.  &» 
.12  ^V.    W. 

switcliing 
negligence 
r  presumed 
:s  must  be 
V,  L.  ^  S. 
las.  178,  31 

•ain,  after  a 
md  the  de- 
;ligence    on 

/.  M.  &*  S. 

Rep.  591. — 
)uis,  I.  M.  & 

1  railroad  to 
a  station  at 
isenger-train 
iss,  provided 
)r  the  safety 
s.  Smith  V. 
ro,  20  S.  W. 

f  a  railroad 
ifork  is  pro- 
\ck  will  not, 
ith  fault  and 
;  from  an  ac- 
iver  R.  Co.,  2 

;racks  on  its 
vhich  one  it 
:hem  on  the 

an  adjacent 
ence.  Flinn 
:o.,  34  N.  V. 
Y.Supp.  341. 

injury  based 
he  defendant 
r  to  a  cattle- 

that  another 


switch  at  the  same  station  was  farther  from 
the  cattle-guard  did  not  tend  to  prove  that 
there  was  negligence  in  building  and  main- 
taining the  tirst  one  so  near.  Robinson  v. 
Chicago,  R.  I.  &»  P.  R.  Co.,  71  Iowa  102, 
32  A'.  W.  Rep.  193. 

Where  a  freight  train  is  obstructed  by  a 
snowstorm  so  that  the  conductor  must 
leave  a  part  of  the  cars,  he  is  not  chargeable 
with  negligence,  nor  bound  as  a  matter  of 
law  to  take  forward  a  car  that  he  knows 
contains  articles  which  will  be  injured  by 
freezing  rather  than  other  cars  of  whose 
contents  he  is  ignorant.  Swetland  v.  Bos- 
ton &*  A.  R.  Co.,  102  ^lass.  276. 

33.  Failure  to  use  best  luetliods  of 
avoitliug:  accidents.— If  a  railroad  cor- 
poration in  the  administration  of  its  atlairs, 
conforms  to  the  rules  adopted  or  in  general 
use  by  prudently  conducted  railroads,  it  is 
free  from  blame  unless  it  violates  or  disre- 
gards some  positive  requirement  of  the  law 
and  thereby  inflicts  an  injury.  Alabama  G. 
S.  R.  Co.  v.  Arnold,  ^^  Am.  &^Eng.  R.  Cas. 
466,  84  Ala.  1 59,  4  So.  Rep.  359,  5  Am.  St. 
Rep.  354. — Following  Louisville  &  N.  R. 
Co.  V.  Allen,  78  Ala.  494  ;  Georgia  Pac.  R. 
Co.  V.  Propst,  83  Ala.  518.  Reviewing 
Lafflin  v.  Buffalo  &  S.  W.  R.  Co.,  106  N.  Y. 

136. 

Omission  of  precautions  against  a  casualty 
so  improbable  as  to  be  beyond  the  range  of 
reasonable  apprehension  is  not  actionable 
negligence.  Robinson  v.  Manhattan  R.  Co., 
5  Misc.  209,  25  A^.  Y.  Sitpp.  91,  54  A'.  Y.  S. 
R.  792. 

An  inspection  of  a  car  may  be  insufficient 
to  detect  a  particular  defect  therein,  yet 
sufficient  to  discharge  the  duty  which  the 
company  owes  to  those  who  are  not  pas- 
sengers. .Schneider  v.  Second  Ave.  R.  Co., 
4  Silv.  App.  (A^  J'.)  :32. 

Where  a  company  is  not  charged  with  any 
other  negligence  e^-'ept  failing  to  block  the 
joint  of  a  switch.  ..nd  the  evidence  tends 
to  show  that  the  blocking  of  switches  is  yet 
but  an  experiment,  the  trial  court  is  not  jus- 
tified in  instructing  the  jury  in  effect  that 
such  failure  is  in  itself  negligence.  Chicago, 
R.  I.  &*  P.  R.  Co.  V.  Lonergan,  28  Am.  &* 
Eng.  R.  Cas.  491,1 18  ///.  4«.  7  N.  E.  Rep. 

55- 

A  company  is  not  chargeable  with  negli- 
gence merely  because  it  delays  for  any 
length  of  time  to  repair  a  broken  car  while 
it  remains  unused  and  not  so  situated  as  to 
create  danger ;  nor  merely  because  it  moves 


such  car  to  its  shops  for  repairs,  and  does 
not  make  such  repairs  at  the  place  where 
the  car  was  injured  ;  nor  merely  because  it 
puts  such  car  in  a  train  with  others  in  order 
to  take  it  to  the  repair  shops.  Flanagan  v. 
Chicago  &»  N.  W.  R.  Co.,  4$  W'm.  98. 18  Am. 
Rj'.  Rep.  73. 

A  company  was  sued  for  an  injury  result- 
ing from  a  train  stopping  on  a  grade  and 
then  suddenly  backing,  due  to  a  brake  giv- 
ing way  and  the  slippery  condition  of  the 
track.  The  company  contended  that  the 
accident  was  the  result  of  inevitable  cas- 
ualty, and  that  it  was  not  chargeable  with 
negligence.  Held,  that  the  fact  that  a 
skilled  mechanic  connected  with  the  road 
afterwards  devised  a  patent  to  prevent  such 
accidents  does  not  tend  to  show  negligence 
on  the  part  of  the  company  unless  by  rea- 
sonable diligence  it  could  have  discovered 
the  new  device  before  the  accident  hap- 
pened. Carter  v.  Kansas  City  Cable  R.  Co., 
42  Fed.  Rep.  37. 

34.  Absence  of,  or  defects  in, 
bralces.  —  Where  a  company  furnishes 
freight  cars  to  be  propelled  by  pushing,  it  is 
not  negligence  to  fail  to  supply  them  with 
brakes  or  other  means  of  controlling  their 
movement.  Miller  v.  Union  Pac.  R.  Co.,  5 
McCrary  {U.S.)  300,  17  Fed.  Rep.  67. 

A  car  with  defective  brakes  is  not  such 
an  imminently  dangerous  instrument  as  to 
render  the  railroad  company  liable  to  one 
injured  thereby,  in  the  absence  of  any  con- 
tractual or  other  relationship.  Roddy  v. 
Missouri  Pac.  R.  Co.,  104  Mo.  234,  15  5.  JV. 
Rep.  II 1 2. 

35.  Blovvini;  whistle— Letting  off 
steam. — Blowing  a  steam  wnistle  and  let- 
ting off  steam  are  not  per  se  acts  of  negli- 
gence or  evidence  of  wrongful  conduct  on 
the  part  of  those  in  charge  of  a  train.  But 
when  those  acts  are  done  carelessly,  heed- 
lessly, and  without  any  necessity  therefor, 
they  become  acts  of  negligence,  and  the 
company  will  be  responsible  for  injuries 
caused  thereby.  Cuip  v.  Atchison  &*  N.  R. 
Co.,  17  Kan.  475. 

Where  it  appears  that  the  automatic  safe- 
ty valve  is  the  best  thing  that  has  been  de- 
vised for  the  safety  of  a  locomotive  and  for 
the  protection  of  life,  it  is  not  negligence  to 
allow  steam  to  escape  in  the  legitimate  use 
of  such  contrivance,  since  the  law  in  confer- 
ring the  right  to  use  an  element  of  danger 
does  not  accompany  such  right  with  a  pen- 
alty ;  but  an  abuse  of  the  right  conferred 


790 


NEGLIGENCE,  36-41. 


\3 


i 

Is 


would  be  construed  as  negligence.  Louis- 
ville, N.  A.  &•  C.  Ji.  Co.  V.  Schmidt,  55  Am. 
&»  Eftg.  li.  Cas.  128,  134  Ind.  16,  33  ^V,  E. 
Rep.  774. 

30.  Inefficient  lookout. —The  stat- 
ute requiring  "the  engineer,  fireman,  or 
some  other  person  upon  the  locomotive  "  of 
a  moving  train  to  be  constantly  on  the 
lookout  "ahead"  has  no  application  to  the 
movement  by  impetus  or  gravitation  of  cars 
detached  from  the  locomotive.  But  upon 
common  law  principles  the  company  may 
be  held  for  injury  done  by  detached  cars 
moving  upon  its  track  by  impetus  or  gravi- 
tation where  it  fails  in  its  duty  to  keep  a 
proper  lookout  for  persons  upon  the  track 
in  front  of  the  c;irs,  or  to  use  all  possible 
means  to  prevent  accident  upon  discovery 
of  the  person.  The  statute  is  but  a  decla- 
ration of  common  law  principles.  The  dis- 
tinction between  cases  under  the  statute 
and  at  common  law  is  that  contributory 
negligence  may  defeat  a  recovery  altogether 
in  the  latter,  but  can  only  mitigate  the  dam- 
ages in  the  former.  Patton  v.  East  Teiin., 
V.  &*  G.  A\  Co.,  4.8  Am.  6-  Efig.  H.  Cas.  581, 
89  Tenn.  370,  155.  IV.  Rep,  919. 

37.  Failure  to  give  signals.— Where 
at  the  time  and  place  where  the  accident 
occurred  there  was  no  obligation  on  the 
part  of  the  company  to  give  signals,  negli- 
gence cannot  be  imputed  to  the  defendant 
if  they  were  not  given.  Northern  C.  R.  Co. 
V.  State,  6  Am.  &•  Eng.  R.  Cas.  66,  54  Md. 
113.— Distinguished  in  Philadelphia,  W. 
&  B.  R.  Co.  V.  Fronk,  32  Am.  &  Eng.  R. 
Cas.  31,  67  Md.  339,  9  Cent.  Rep.  64,  10  Atl. 
Rep.  307. 

It  is  not  unlawful  for  railway  companies 
to  propel  cars  by  pushing  them  in  advance 
of  the  locomotive  by  which  they  are  pro- 
pelled when  the  exigencies  of  their  business 
require  it.  But  if  they  do  so  under  circum- 
stances which  increase  the  risk  of  injury  to 
persons  or  property,  they  must  give  timely 
and  suitable  notice  or  warning,  in  some 
manner,  of  what  they  are  doing.  Bohan  v, 
Milwaukee,  L.  S.  &*  IV.  R.  Co.,  15  Am.  &- 
Eng.  R.  Cas.  374,  58  IVis.  30,  15  A^.  IV.  Rep. 
801. 

38.  Failure  to  sto;>  train.— The  evi- 
dence showed  that  plaintifT's  intestate  either 
fell  or  jumped  from  a  train  and  lay  near  an 
adjoining  track,  but  so  that  a  train  on  that 
track  might  have  passed  without  injuring 
him  if  he  had  not  moved,  but  when  the 
train  was  nearly  past  he  threw  his    legs 


under  the  wheels  and  received  the  injuries 
from  which  he  died,  //eld,  that  evidence 
that  the  deceased  was  seen  near  the  track  is 
not  sufficient  to  make  the  company  guilty 
of  negligence  in  not  stopping  the  train. 
McKenna  v.  New  York  C.  &^  //.  A'.  /\\  Co.,  9 
Daly  {N.  Y.)  262.— Distinguished  in  Mal- 
lard V.  Ninth  Ave.  R.  Co.,  15  Daly  376,  7 
N.  Y.  Supp.  666,  27  N.  Y.  S.  R.  801. 

30.  Obstructing  view  of  crossing. 
— It  is  not  negligence  per  se  for  a  company 
to  leave  cars  upon  a  side  track  in  the  thickly 
settled  portion  of  a  city  so  as  to  obstruct 
the  view  of  persons  who  have  to  cross  the 
track ;  but  where  a  jury  finds  that  it  was 
negligence,  their  finding  will  not  be  dis- 
turbed when  supported  by  evidence,  //ous- 
ton  &»  T.  C.  R.  Co.  V.  Stewart,  (7V.r.)  17  S. 
IV.  Rep.  33. 

40.  Unavoidable  or  pure  accident.* 
— If  in  the  prosecution  of  a  lawful  act  an 
accident,  which  is  purely  an  accident,  arises, 
no  action  can  be  maintained  for  an  injury 
resulting  therefrom.  Walsh  v.  Virginia  &* 
T.  R.  Co.,  8  Nev.  no.  Mitchell  v.  Chicago 
&'G.  T.  R.  Co.,  12  Am.  &•  Eng.  R.  Cas. 
163,  51  Mich.  236.  16  A^.  IV.  Rep.  38S,  47 
Am.  Rep.  566. 

An  injury  that  is  the  result  of  many  for- 
tuitous circumstances,  no  one  of  which  can 
be  fairly  said  to  have  been  its  proximate 
cause,  is  an  accident  and  is  not  actionable. 
Chicago,  St.  P.,  M.  <&<•  O.  R.  Co.  v.  Elliott, 
55  Fed.  Rep.  949,  \2  U.  S.  App.  381,  5  C  C. 

A-  347. 

The  negligence  charged  against  the  driver 
of  a  street-car  was  in  not  stopping  the 
horses  before  they  ran  over  a  child.  There 
was  no  evidence  which  tended  to  show  that 
at  any  time  the  child  was  at  a  place  wliere 
the  driver  could  have  seen  him,  and  then 
have  managed  the  horses  so  that  he  would 
not  have  been  knocked  down ;  and  it  was 
consistent  with  the  testimony  that  the  child 
came  in  contact  with  the  horses  at  the  side, 
and  so  suddenly  that  the  accident  was  una- 
voidable, //eld,  not  sufficient  to  show  neg- 
ligence, and  a  nonsuit  was  properly  ordered. 
Cords  V.  Third  Ave.  R.  Co..  .'4  /.  6-  5.  319, 
4  A'.  Y.  Supp.  439.  21  A^.   Y.  S.  R.461. 

41.  Rapid  speed  not  negligence 
per  .se.f- A  high  rate  of  speed,  if  the  con- 
ditions of  the  railway  track  and  machinery 
will  permit  it  without  increasing  the  peril 

*  See  also  Strekts  and  Highways,  373. 
f  See  also  ante,  20. 


■■~p«7 


NEGLIGENCE,  41. 


791 


to  the  passengers,  will  not  be  negligence. 
Chicago,  P.  <S^  St.  L.  R.  Co.  v.  Lewis,  145 
m-  67,  33  A^.  E.  Rep.  960.— Applying  In- 
dianapolis, B.  &  VV.  R.  Co.  V.  Hall,  106  111. 
371. — Peoria,  D.  iS^  E.  R.  Co.  v.  A  ten,  43 
///.  App.  68.  Grows  v.  Maine  C.  R.  Co.,  67 
Ale.  100,  16  Am.  Ry.  Rep.  326.  Grand  Rap- 
ids «S-  /.  R.  Co.  V.  Huntley,  38  Mich.  537.— 
Distinguished  in  Klanowski  v.  Grand 
Trunk  R.  Co.,  57  Mich.  525.— /"ryt?/-  v.  iV. 
Louis,  K.  C.  <3-  A^.  R.  Co.,  69  i»/t?.  215.— 
Following  Maher  v.  Atlantic  &  P.  R.  Co., 
64  Mo.  267.—  Wallace  v.  St.  Louis,  I.  M.  &^ 
S.  R.  Co.,  74  Mo.  594.  Barber  v.  Richmond 
&•  D.  R.  Co.,  34  So.  Car.  444;  1 3  5.  E.  Rip. 
630.— Applying  Zeigler  v.  Northeastern  R. 
Co.,  7  So.  Car.  402. 

A  train's  mere  speed  of  motion  is  not  per 
se  evidence  of  negligence,  nor  is  the  fact  that 
the  train  is  "  behind  time."  Norfolk &*  IV. 
R.  Co.  V.  Ferguson,  79  Va.  241.  Ne7u  York, 
P.  &*N.  R.  Co.  V.  Kellam,  32  Am.  &*  Eng.  R. 
Cas.  114,  83  Trt.  851,  3  5.  iS".  Rep.  703. 

Where  the  speed  of  railway  trains  is  not 
regulated  by  statute  unless  in  exceptional 
cases,  the  existence  of  a  high  rate  of  speed 
does  not  argue  a  fault  on  the  part  of  the 
company.  The  reasonable  rule  is  that  the 
iiighest  rate  of  speed  consistent  with  the 
safety  of  the  passengers  is  proper  and  legiti- 
mate. Houston  V.  Vicksburg,  S.  <S>»  P.  R. 
Co.,  34  Am.  6f*  Eng.  R.  Cas.  76,  39  La.  Ann. 
796,  2  So.  Rep.  562.  Chicago,  R.  I.  &*  P.  R. 
Co.  V.  Givens,  18  ///.  App.  404.  McKonkey 
\.  Chicago,  B.  &*  Q.  R.  Co.,  40  Iowa  205,  8 
.////.  Ry.  Rep.  406.  — DISAPPROVED  IN  Klan- 
owski V.  Grand  Trunk  R.  Co.,  57  Mich.  525. 
~ Maher  v.  Atlantic  «&*  P.  R.  Co.,  64  Mo.  267. 
-Followed  in  Pryor  v.  St.  Louis,  K.  C. 
A  N.  R.  Co.,  69  Mo.  215.  Reviewed  in 
I'rewitt  V.  Eddy,  115  Mo.  ziy— Powell  w. 
Missouri  Pac.  R.  Co.,  8  Am.  &»  Eng.  R.  Cas. 
40/,  76  Mo.  80. —  Followed  in  Main  v. 
Hannibal  &  St.  J.  R.  Co.,  18  Mo.  App.  388. 
—  Young  V.  Hannibal  &•  St.  J.  R.  Co.,  19 
Am.  &*  Eng.  R.  Cas.  512,  79  Afo.  336. 
Lord  V.  Chicago,  R.  /.  &^  P.  R.  Co.,  S2  Afo. 
139.  Main  v.  Hannibal  <S-  St.  J.  R.  Co., 
18  Mo.  App.  388.— Following  Powell  v. 
Missouri  Pac.  R.  Co..  76  Mo.  80;  Wallace 
V.  St.  Louis,  L  M.  &  S.  R.  Co.,  74  Mo.  594. 
—Potter  V.  Hannibal  6-  St.  J.  R.  Co.,  18 
Mo.  App.  694.  Nutter  v.  Chicago,  R.  I. 
S-  P.  R.  Co.,  22  AIo.  App.  328. 

The  running  of  a  train  through  the  streets 
of  a  city  at  a  speed  prohibited  under  a  pen- 
alty is  not  per  se  negligence.   Brown  v.  Buf- 


falo Qr- S.  L.  R.  Co.,  22  N.  Y.  191.— Com- 
mented  on  and  not  followed  in  Grey 
V.  Mobile  Trade  Co.,  55  Ala.  387.  Disap- 
proved IN  Union  Pac.  R.  Co.  v.  Rassmus- 
sen,  25  Neb.  8lo,  41  N.  W.  Rep.  778;  Correll 
V.  Burlington,  C.  R.  &  M.  R.  Co.,  38  Iowa 
120.  Overruled  in  Massoth  v.  Delaware 
&  H.  Canal  Co.,  64  N.  Y.  524;  Beisegel  v. 
New  York  C.  R.  Co.,  14  Abb.  Pr.  N.  S.  (N. 
Y.)  29.  Reviewed  in  Burlington  &  M.  R. 
R.  Co.  V.  Wendt,  12  Neb.  76. 

Unless  plaintiff  shows  that  the  injury 
would  not  liave  occurred  but  for  the  viola- 
tion of  the  provision  of  the  ordinance. 
Philadelphia,  IV.  &^  B.  R.  Co.  v.  Stebbing, 
1 9  Am.  &•  Eng.  R.  Cas.  36,  62  Aid.  504. 

The  mere  running  of  a  train  at  a  greater 
rate  of  speed  than  that  allowed  by  ordi- 
nance will  not  constitute  an  injury  done  to 
a  person  walking  along  the  track  an  act  of 
wanton  or  wilful  negligence.  (Walker  and 
Dickey,  JJ.,  dissenting.)  Illinois  C.  R.  Co. 
v.  Hetherington,  83  ///.  510. — Quoted  in 
Wabash,  St.  L.  &  P.  R.  Co.  v.  Weisbeck, 
14  111.  App.  525. 

Negligence  will  not  always  be  presumed 
where  a  railroad  violates  an  ordinance  or 
statute  by  running  ai  too  great  a  rate  of 
speed  in  a  town  or  city  ;  and  especially 
where  there  is  no  evidence  of  such  ordi- 
nance or  statute,  or  where  it  is  not  shown 
ihat  the  accident  occurred  in  a  -populous 
part  of  a  city,  or  at  a  time  when  so  many 
persons  were  walking  on  the  track  as  to 
prevent  one  from  readily  seeing  a  moving 
train,  where  it  is  shown  that  the  persons 
walking  on  the  track  could  easily  secure 
their  safety  by  stepping  aside.  Syme  v. 
Richmond  &>  D.  R.  Co.,  113  iV.  Car.  558,  18 
5.  E.  Rep.  Wit. 

Except  so  far  as  limited  by  statute  the 
whole  matter  of  regulating  the  speed  of 
trains  is  left  to  the  sound  discretion  of  the 
municipal  authorities.  Lake  View  v.  Tate, 
39  Am.  <5-»  Eng.  R.  Cas.  703,  130  ///.  247,  6 
L.  R.  A.  268,  22  N.  E.  Rep.  791. 

The  necessity  of  running  railroad  cars 
with  regularity  and  uniformity  is  not  a  mat- 
ter of  convenience  merely,  but  the  business 
cannot  be  done  at  all  unless  calculations  are 
made  upon  the  movements  of  trains.  The 
risks  attendant  upon  a  disturbance  of  that 
regularity  are  risks  of  human  life,  and  not 
mere  business  delays,  and  it  would  be  in  the 
highest  degree  dangerous  to  make  the 
movements  of  the  cars  vary  with  the  wind 
and  weather.    Hagan  v.  Chicago,  D.  &*  C, 


792 


NEGLIGENCE,  42. 


if' 


m 


G.  T.  /.  R.  Co.,  49  Am.  &>  Eiir.  K.  Cas.  670, 
86  Mich.  615,  49  jV.   /r.  /vV/.  509. 

The  engineer  and  fireman  in  managing  a 
train  are  at  liberty,  and  it  is  their  duty,  to 
run  their  train  as  nearly  on  time  as  possi- 
ble, and  in  case  of  a  way  freight,  whose 
length  of  stops  at  the  stations  is  necessa- 
rily irregular,  they  are  not  to  be  considered 
negligent  by  reason  of  using  natural  and 
reasonable  means  to  make  time.  Hagan  v. 
Chicago,  D.  &'  C.  G.  T.  J.  A'.  Co.,4g  Am.  &' 
Eiig.  R.  Cas.  670,  86  M/cA.  615,  49  N.  IV. 
Rep.  509. 

It  must  be  conceded  that  in  operating  a 
railroad  it  becomes  necessary,  at  times,  to 
make  time  between  given  points,  and  the 
running  of  a  freight  train  at  the  rate  of  forty 
n)iles  an  hour  for  this  purpose  is  not  in  it- 
self negligence.  Hagan  v.  Chicago,  D.  &* 
C.  G.  T.  J.  R.  Co.,  49  Am.  &-  Eng.  R.  Cas. 
670,  86  Mic/t.  615,  49  N.  IV.  Rep.  509. 

The  running  of  a  mail  train  at  the  rate  of 
thirty  or  thirty-five  miles  per  hour  past  a 
station  is  not  of  itself  unlawful ;  nor  can 
negligence  be  imputed  to  the  railroad  com- 
pany from  that  fact  alone  so  as  to  make  it 
liable  for  an  injury  resulting  from  the 
throwing  of  a  mail  bag  from  such  train. 
Muster  v.  Chicago,  M.  &*  St.  P.  R.  Co.,  18 
Am.  &'  Eng.  R.  Cas.  113,  61  IVis.  325,  21  N. 
W.  Rep.  223,  50  Am.  Rep.  141. 

Running  a  passenger  tram  at  the  rate  of 
thirty  miles  an  hour  on  a  straight  track  is 
not  gross  negligence  within  the  Pub.  St.  ch. 
112,  §  212.  Merrill  v.  Eastern  R.  Co.,  139 
Mass,  238,  52  Am.  Rep.  705,  i  A^.  E.  Rep. 
548. 

The  running  of  a  train  at  the  rate  of 
twenty-five  miles  an  hour  in  a  village  may 
be  negligence,  but  not  of  itself  enough  to 
show  a  reckless  or  wanton  disregard  of  the 
safety  of  the  public  or  a  wilful  attempt  to 
injure  the  plaintiflf,  especially  where  there  is 
no  ordinance  prohibiting  it.  Garland  v. 
Chicago  &•  N.  IV.  R.  Co.,  8  ///.  App.  571. 

Fifteen  miles  per  hour  is  not  reckless  or 
dangerous  speed  for  a  train  between  stations 
outside  of  cities  and  towns.  Benson  v.  Cen- 
tral Pac.  R.  Co.,  54  Am.  &*  Eng.  R.  Cas. 
126,  98  Cal.  45,  32  Pac.  Rep.  809,  33  Pac.  Rep. 
206. 

Approaching  a  stopping  place  on  a  railroad 
where  two  roads  branch,  and  where  a  crowd 
of  persons  are  waiting  for  the  approaching 
train,  at  the  rate  of  seven  or  eight  miles  an 
hour  cannot  be  assumed  to  be  reckless, 
when  it  is  shown  that  the  train  was  drawn 


by  a  dummy  »ngine,  and  could  be  stopped 
within  fifteen  or  twenty  feet.  Ensley  R.  Co. 
V.  Chewning,  50  Am.  (S-  Eng,  R,  Cas.  46,  93 
Ala.  24,  9  So.  Rep.  458. 

Evidence  that  those  in  charge  of  a  train 
discovered  a  wagon  box  and  seat  near  the 
track  shortly  before  reaching  the  deceased 
and  his  team  does  not  tend  to  show  that 
they  knew  some  one  was  on  the  track  ahead 
of  them,  or  that  they  were  guilty  of  gross 
negligence  in  proceeding  at  the  usual  rate 
of  speed.  McDonald  v.  Chicago,  M.  &*  St. 
P.  R.  Co.,7S  li'is.  «2i,43  A'.   IV.  Rep.  744. 

42.  Coiniiaiiy  may  adopt  its  own 
rate  of  .speetl  iiiiless  restrained  by 
statute  or  ordinance.*— A  company  has 
the  riglit  to  run  its  trains  at  any  speed 
deemed  proper  except  it  be  in  an  incorpo- 
rated city  or  town  or  when  crossing  a  public 
street  or  highway.  Farve  v.  Louisville  &• 
A^.  R.  Co.,  42  Fed.  Rep.  441. 

Where  the  general  law  of  the  state  im- 
poses no  restraint  upon  railway  companies 
as  to  the  rate  of  speed  their  trains  may  be 
run  and  they  are  not  prohibited  by  municipal 
regulations,  they  may  adopt  such  rate  of 
speed  as  they  may  desire,  provided  always 
that  it  is  reasonably  safe  to  the  passengers 
being  transported.  Chicago,  B.  &*Q.  R.  Co. 
V.  Lee,6S  III.  576.— Quoted  in  Wabash,  St. 
L.  &  P.  R.  Co.  7'.  Hicks,  13  111.  App.  407; 
Chicago.  B.  <!i:  O.  R.  Co.  v.  Florens,  32  III. 
App.  365.  Rkvif.wf.o  in  W^abash,  St.  L, 
&  P.  R.  Co.  V.  Neikirk.  13  111.  App.  387.— 
Indianapolis,  /.'.  6-  \V.  R.  Co.  v.  Hall,  12 
Am.  (S-»  Eng.  R.  Cas.  146,  106  ///.  371. — AP- 
PLIED IN  Chicago,  P.  &  St.  L.  R.  Co.  v. 
Lewis,  145  111.  67.  Not  followed  in 
Louisville.  N.  A.  &  C.  R.  Co.  v.  Jones,  28  Am. 
&  Eng.  R.  Cas.  170,  108  Ind.  $^l.— Wabash, 
St.  L.  iS-  P.  R.  Co.  v.  Neikirk,  13  ///.  .App. 
387.— Reviewing  Chicago.  B.  &  Q.  R.  Co. 
V.  Lee.  68  111.  ^d.— Wabash,  St.  L.  (^  P.  R. 
Co.  V.  Neikirk,  15  ///.  App.  172. 

Such  companies  may  run  their  trains  at 
such  speed  as,  under  all  the  circumstances, 
shall  comport  with  the  rule  of  law  which 
requires  them  to  exercise  a  high  degree  of 
care  for  the  safety  of  passengers,  and 
whether  a  given  rate  of  speed  is  dangerous 
or  not  is  to  be  determined  by  the  surround- 
ing circumstances,  such  as  condition  of  the 
track,  fencing  of  right  of  way.  etc.  Indian- 
apolis, B.  <S-  W.  R.  Co.  V,  Hall,  12  Am.  &* 
Eng.  R.  Cas.  146,  106  ///.  371. 


*  See  also  ante,  28« 


NEGLIGENCE,  43. 


793 


topped 
R.Co. 
46.93 

la  train 
ar  the 
iceased 
iw  that 
ahead 
'f  gross 
al  rate 
&>  St. 

'■  744. 

own 
led  by 

|any  has 
speed 
iicorpo- 
i  public 
vil/e  &- 


4.  Pr0ximate  Cause. 


43.  Defendant's   neglitrence  niu8t 
be  the  proximate  cause  of  the   in- 
jury.*—Tlie   mere   concurrence  of    negli- 
gence and  injury  does  not  make  defendant 
liable  unless  the  negligence  was  the  proxi- 
mate cause  of  the  injury.    Reed  v.  Missouri 
I'ac.  R.  Co.,  50  Mo.  App.  504.    Nashville,  C. 
&^  St,  L.  R.  Co.  V.  Hembree,  38  Am.  <S-  Etig. 
R.  Cas.   300,  85  Ala.  481,  5   So.  Rep.  173. 
Jacksonville,   T.  <S>»  K.  W,  R.  Co.  v.  Penin- 
sular L.,  T.  &*  M,  Co.,  49  Am.  &*  Eng.  R. 
Cas.  603,  27  Fh.  1 , 9  So.  Rep.  661 .  Mac  Veagh 
V.  Atchison,  T.  &«•  S.  F.  R.  Co.,  18  Am.  &* 
Eng.  R.  Cas.  651.  3  iV.  Mex.  205,  5  Pac.  Rep. 
457.  —  Approving    Hoadley    v.    Northern 
Transp.  Co.,  115  Mass.  304;  Memphis -%  C. 
R.  Co.  V.  Reeves,  10  Wall.  (U.  S.)  176.— 
Mitchell  V.  Chicago  &*  G.  T.  R.  Co.,  1 2  Am. 
&-  Eng.  R.  Cas.  163,  51  Mich.  236, 16  N.  IV. 
Rep.  388,  47  Am.  Rep.  566.     Harlan  v.  St. 
Louis,  K.   C.  Or'  N.  R.  Co.,   65   Mo.    22,— 
Distinguishing  Hicks  v.  Pacific  R.  Co..  64 
Mo.  i^jp.—Stepp  V.  Chicago,  R.  I.  <S«.  P.  R. 
C.3.,  85  Mo.  229.    Hicks  V.  Missouri  Pac.  R. 
Co.,  46  Mo.  App.  304.      Williams  v.  Dela- 
ivare,L.  &^  W.R.  G7..39  Hun(N.  Y.)  430.— 
Applying  Mott  v.  Hudson  River  R.  Co.;  i 
Robt.  (N.  Y.)  586;  Ryan  v.  New  York  C.  R. 
Co.,  35  N.  Y.  210;  Hofnagle  v.  New  York  C. 
&  H.  R.  R.  Co.,  55  N.  Y.  609;  Scheflfer  v. 
Washington  Citv.  V.  M.  &  G.  S.  R.  Co.,  105 
U.  S.  249;  Selleck  v.  Lake  Shore  &  M.  S. 
R.  Co.,  58  Mich.  195.— Dkstinguished  in 
Eades  v.   Clark,    23   J.  &   S.  (N.  Y.)   132. 
Quoted  in  Mars  v.  Delaware  &  H.  Canal 
Co.,  54  Hun  dz^.—Boss  v.  Northern  Pac. 
R.  Co.,  2  N.  Dak.  128,  49  N.   W.  Rep.  655. 
-Distinguishing  West  Mahanoy  Tp.  v. 
Watson,  116  Pa.  St.  344,  9  Atl.  Rep.  430; 
South  Side  Pass.   R.  Co.  v.  Trich,  117  Pa. 
St.  390.  II  Atl.  Rep.  627.    Quoting  Hoag 
V.  Lake  Shore  &  M.  S.   R.  Co.,  85  Pa.  St. 
293:  Milwaukee  &  St.  F,  R.  Co.  v.  Kellogg, 
94  U.  S.  469;  Atkinson  v.  Goodrich  Transp. 
Co.,  60  Wis.  141,  18  N.  W,  Rep.  76^.~Glcnn 
V.  Columbia  <S-  G.  R.  Co..  2\  So.  Car.  466. 

A  person  is  answerable  for  his  negligence 
only  so  far  as  it  is  the  natural  and  proximate 


Proximate  and  not  remote  cause  to  be  re- 
Rarded  in  determining  liability  for  nejrlJBence 
see  note,  7  L.  R.  A.  131.  *  b        . 

Proximate  and  remote  cause  in  cases  involv- 
inff  wroHRful  acts,  see  note,  36  Am.  St.  Rf.p.  808. 

Proximate  and  remote  cause  as  applied  to 
personal  injuries,  see  notes,  47  Am.  Rep.  381:  8 
L.  R.  A.  82;  13  U.  733.  13.0 


cause  of  the  injury,  and  not  when  the  con- 
sequences arise  from  a  conjunction  of  his 
f^ult  with  circumstances  of  an  extraor- 
dinary nature.  Moore  v.  Etiison  Elec.  Il- 
luminating Co.,  43  La.  Ann.  792,  9  So.  Rep. 
433- 

Failure  of  the  engineer  to  blow  on  brakes 
will  not  render  the  railroad  company  liable 
for  an  injury  which  is  not  the  result  of  such 
failure.  Ailktns  v.  Atlanta  &*  C.  A.  L.  R. 
Co.,  31  Am.  <&-  Eng.  R.  Cas.  281,  27  So.  Car. 
71,2  S.E.  Rep.  849. 

Violations  by  a  railroad  train  of  a  city 
ordinance  as  to  the  rate  of  speed,  head- 
lights, and  bell  ringing,  although  amounting 
to  negligence /.ir  se,do  not  render  the  com- 
pany liable  for  damages  not  caused  thereby. 
Karle  v.  Kansas  City,  St./.  &■•  C.  B.  R.  Co.,  55 
Mo.  476.- Reviewed  in  Wyatt  v.  Citizens' 
R.  Co.,  55  Mo.  485;  Wilburn  v.  St.  Louis,  L 
M.  &  S.  R.  Co.,  36  Mo.  App.  zo'i.—Lake 
Shore  &>•  M.  S.  R.  Co.  v.  Parker,  41  Am.  <S- 
Eng.  R.  Cas.  339,  131  ///.  557,  23  A'.  E.  Rep. 
237 ;  affirming  33  ///.  App.  405.  Evans  &^ 
H.  Fire  Brick  Co.  v.  St.  Louis  &*  S.  F.  R. 
Co.,  1 7  Mo.  App.  624. 

If  negligence  be  the  proximate  cause  of 
the  injury,  it  is  of  no  consequence  whether 
it  be  omission  or  commission.  Harriman 
V.  Pittsburgh,  C.  &-  St.  L.  R.  Co.,  32  Am.  &^ 
Eng.  R.  Cas.  37,  45  Ohio  St.  11,  12  N.  E. 
Rep.  451.— Following  Davis  v.  Chicago  & 
N.  W.  R.  Co.,  58  Wis.  646. 

Where  the  act  of  negligence  complained 
of  as  causing  the  injury  is  at  most  but  the 
remote  cause,  there  can  be  no  recovery 
therefor.  Stanley  v.  Union  Depot  R.  Co., 
114  Mo.  606,  21  .S".  W.  Rep.  832.  Meyer  v. 
Midland  Pac.  R.  Co.,  2  Neb.  319. 

The  complaint  in  an  action  for  negligence 
must  show  that  the  plaintiflF's  injury  was 
caused  or  occasioned  by  the  negligence  al- 
leged. It  is  not  enough  to  charge  the  de- 
fendant with  a  negligent  act  or  omission  ; 
it  must  also  be  shown  with  reasonable  cer- 
tainty that  such  act  or  emission  was  the 
direct  or  proximate  cause  of  the  injury,  or 
the  complaint  will  be  bad  on  demurrer. 
Ohio  &-  M.  R.  Co.  V.  Engrer,  4  Ind.  App. 
261,  30  A'.  E.  Rep.  924. 

A  demurrer  to  the  complaint  is  properly 
sustained  where  it  shows  on  its  face  that 
the  negligence  complained  of  was  not  the 
proximate  cause  of  the  injury.  Kistner  v. 
Indianapolis,  too  Ind.  210. 

Where  a  person  claims  damages  from 
a   railroad  company  for  injuries  received 


r 


r'94 


NEGLIGENCE,  44-46. 


■■f  I 


y=i 


through  alleged  negligence,  the  burden  is 
upon  him,  not  only  to  show  negligence  on 
the  part  of  the  company,  but  also  that  su<jh 
negligence  produced  the  injury  complained 
of.  Kehey  v.  Jewett,  28  Hun  (N.  V.)  51.— 
Applying  Lamb  v.  Camden  &  A.  E<.  &  T. 
Co.,  46  N.  Y.  271.  Following  Held  w.  New 
York  C.  &  H.  R.  R.  Co.,  12  N.  Y.  Wkly. 
Dig.  163.  — Hctfv.  Minneapolis  <&*  St.  L.  R. 
Co..  4  McCrary(U.  S.)  622,  14  Fe,f.  7M  ^^Z. 
Coy  V.  Utica  &^  S.  A'.  CV.,  23    Bar;  .' ) 

643.  Chrystal  v.  Troy  &*  B.  R.  C  •  ',  i  '. 
V.  519,  26  N.  E.  Rep.  1 103  ;  form  -  ..f.p,Aii. 
105  N.  V.  164,  1 1  JV.  E.  Rep.  380,  36  yV.  K. 
5,  R.  699  ;  reversing  52  //««  55,  :■.  /'*'.  K.  5. 
R.  384.  yirtav/M  V.  Atlanta  &-  C.  .4.  L.  '■' 
Co.,  31  Am.  &*  Eng.  R.  Cas.  281,  27  So.  C  %r, 
71,  2  5.  E,  Rep.  849.— Reviewing  Glenn  v. 
Columbia  &  G.  R.  Co.,  21  So.  Car.  466. 

Mere  surmise  and  conjecture  that  the 
negligence  was  the  proximate  cause  of  the 
injury  are  insufficient.  Larson  v.  St.  Paul 
&'  D.  R.  Co.,  43  Minn.  488,  45  N.  IV.  Rep. 
1096. 

The  instinct  of  self-preservation  on  plain- 
tiiT's  part  cannot  supply  the  place  of  proof ; 
yet,  where  there  is  any  evidence  from  which 
the  jury  might  legally  infer  a  causal  con- 
nection between  the  negligence  and  the  in- 
jury, the  question  should  be  submitted  to 
them.  Bromley  v.  Birmingham  Mineral  R. 
Co.,  95  Ala.  397,  u  So.  Rep.  341. 

44.  Whether  the  ueglleent  act 
must  be  the  sole  ciiiise  of  injury. — 
The  injury  must  be  solely  caused  by  the 
negligence  of  the  defendant.  It  is  not 
enough  that  it  should  be  essentially  so 
caused.  Louisville  &*  N.  R.  Co.  v.  Yniestra, 
29  Am.  &*  Eng.  R.  Cas.  297,  21  Fla.  700. 
Grippen  v.  New  York  C.  R.  Co.,  40  A^.  V. 

34. 

Negligence  may  be  the  proximate  cause 
of  an  injury  of  which  it  is  not  the  sole  or 
immediate  cause.  Houston  &*  T.  C.  R.  Co. 
v.  McDonoi^h,  i  Tex.  App.  (Civ.  Cas.)  354. 
Western  R.  Co.  v.  Sistrunk,  85  Ala.  352,  5 
So.  Rep.  79. 

Where  a  physical  injury  is  the  natural 
result  of  the  negligence  of  a  defendant, 
although  it  proceeds  from  and  is  the  result 
of  a  mental  shock  caused  directly  by  the 
negligent  act,  the  defendant  is  liable  if  the 
jury  find  from  the  evidence  that  the  shock 
caused  the  injury.  Mitchell  v.  Rochester  R. 
Co.,  25  A^.  Y.  Supp.  744,  4  Misc.  575,  30  Abb. 
N.  Cas.  362  ;  affirmed  in  77  Hun  607,  mem. 


—Reviewing  Lowery  v.  Manhattan  R.  Co., 
99  N.  Y.  1 58,  1  N.  E.  Rep.  608. 

45.  Nct;Ii|;euec  in  absence  of  which 
injury  would    not  have   resulted.— 

When  one  is  injured  by  an  actof  negligence, 
that  act  proximately  contributes  to  the  in- 
jury when  without  it  the  injury  would  not 
have  been  inflicted.  International  &*  G.  N. 
R.  Co.  V.  Ormond,  27  Am.  &*  Eng.  R.  Cas. 
139,  64  Tex.  485.— Quoted  in  Murray  v. 
Gulf,  C.  &  S.  F.  R.  Co.,  38  Am.  &  Eng.  R. 
Cas.  177,  73  Tex.  2,  11  S.  W.  Rep.  125. 

When  the  act  of  God  is  the  cause  of  a 
loss,  it  is  not  enough  to  sliow  that  defend- 
ant has  been  guilty  of  negligence.  The  case 
1  •  go  further  and  show  that  such  negli- 
gemewa?  an  active  agent  in  bringing  about 
the  loss,  without  which  agency  the  loss 
would  not  have  occurred.  Coleman  v.  Kan- 
sas City,  St.  J.  6-  C.  B.  R.  Co.,  36  Mo.  App. 
476.— Quoting  Baltimore  &  O.  R.  Co.  v. 
Sulphur  Spring  I.  S.  Dist.,  96  Pa.  St.  65. 
Reviewing  Rogers  w.  Central  Pac.  R.  Co.^ 
67  Cal.  607. 

It  is  not  necessary  in  order  to  charge  a 
common  carrier  with  a  liability  that  it  be 
guilty  of  great  negligence.  It  is  enough  if 
the  accident  be  caused  solely  by  any  negli- 
gence on  its  part,  however  slight,  if  by  the 
exercise  of  the  strictest  care  or  precaution 
reasonably  within  its  power  the  injury 
would  not  have  been  sustained.  Potts  v. 
Chicago  City  R.  Co.,  33  Fed.  Rep.  610. 

46.  Injury  which  is  the  natural 
and  probable  consequence  of  defend- 
ant's negligence.— To  render  the  defend- 
ant liable  the  injury  must  be  the  natural  and 
probablij  consequence  of  the  negligence, 
such  as  under  the  circumstances  ought  to 
have  been  foreseen  by  the  wrong-doer  as 
the  natural  consequence  of  his  act.  Sellars 
v.  Richmond  &*  D.  R.  Co.,  25  Am.  &•  Eng. 
R.  Cas.  45'.  94  N.  Car.  654.  Pullman  Pal- 
ace Car  Co.  V.  Laack,  143  ///.  242,  32  A'.  E. 
Rep  285.— Approving  Kean  v.  Baltimore 
&0.  R.Co.,  61  Md.  154:  Milwaukee*  St.  P. 
R.  Co.  v.  Kellogg,  94  U.  S.  469;  Terre  Haute 
&  I.  R.  Co.  v.  Buck,  96  Ind.  346;  Miller?/. 
St.  Louis,  I.  M.  &  S.  R.  Co.,  90  Mo.  389; 
Kellogg  v.  Chicago  &  N.  W.  R.  Co.,  26  Wis. 
223  ;  Smith  v.  London  &  S.  W.  R.  Co.,  L.  R. 
6  C.  P.  21.— Hoag  v.  Lake  Shore  &•  M.  S. 
R.  Co.,  85  Pa.  St.  293.  Baltimore  &-  O.  R. 
Co.  V.  Sulphur  Spring  /.  S.  Dist.,  2  Am.  &* 
Eng.  R.  Cas.  166,  96  Pa.  St.  65,  42  Am.  Rep. 
529.— Following  Pittsburg,  Ft.  W.  &  C. 


NEGLIGENCE,  47. 


795 


R.  Co.T/.  Gilleland,  56  Pa.  St.  445.— Quotku 
IN  Coleman  v.  Kansas  City,  St.  J.  &  C.  B. 
R.  Co.,  36  Mo.  App.  476. —  West  Mahanoy 
Tp.  V.  Watson,  116  Pa.  St.  344,  9  /M.  Rep. 
430.  Mack  V.  Lombard  &>  S.  St.  Pass.  A. 
Co.,  20  P/t:7a.  (Pa.)  207.  Sea/e  v.  Gu//,  C.  &> 
S.  F.  A\  Co.,  65  Tex.  274,  57  yl;«.  AV;>.  602. 
Johnson  v.  G«^,  C  <^  i*.  F.  R.  Co.,  2  Tex. 
Civ.  App.  139,21  .S".  W.  Rep.  274.— Quoting 
Milwaukee  &  St.  P.  R.  Co.  v.  Kelloyg,  94 
U.  S.  475. — In  re  Merrill,  11  Am.  &«•  En^;. 
R.  Cas.  680,54  Vt.  200.  Atkinson  v.  Good- 
rich Transfi.  Co.,  60  Wis.  141,  18  A'.  W. 
Rep.  764.— Distinguishing  Toledo,  W.  & 
W.  R.  Co.  V.  Muthersbaugh,  71  H'.  572.— 
Quoted  in  Boss  v.  Northern  Pac.  R.  Co.,  2 
N.  Dak.  128. 

It  is  not  necessary  to  a  defendant's  liabil- 
ity, after  his  negligence  has  been  established, 
to  sliow  in  addition  thereto  that  the  conse- 
quences of  his  negligence  could  have  been 
foreseen  by  him  ;  it  is  sufficient  if  the  in- 
juries are  the  natural,  though  not  the  neces- 
sary or  inevitable,  result  of  the  negligent 
fault — such  injuries  as  are  likely  in  ordinary 
circumstances  to  ensue  from  the  act  or 
omission  in  question.  Miller  v.  St.  Louis, 
I.  M.  <S-  S.  R.  Co.,  29  Am.  &•  Eng.  R.  Cas. 
254,  90  Mo.  389,  2  S.  W.  Rep.  439.— Ap- 
proved IN  Pullman  Palace  CarCo.  v.  Laack, 
143  111.  242. 

Where  an  employe  sues  for  an  injury,  and 
the  evidence  wholly  fails  to  show  that  the 
injury  was  the  natural  or  probable  conse- 
quence of  defendant's  omission  to  employ  a 
sufficient  number  of  brakemen,  as  charged, 
or  that  the  accident  would  not  have  hap- 
pened but  for  such  omission,  plaintiff  can- 
not recover.  Williams  v.  Delaware,  L.  &* 
W.  R.  Co.,  39  Hun  {N.  Y.)  430. 

47.  Rule  where  there  are  two  or 
more  concurrent  proximate  causes. 
— If  the  injury  is  the  result  of  the  negligence 
of  the  defendant  and  that  of  a  third  person  ; 
or  of  the  defendant,  and  an  inevitable  acci- 
dent ;  or  an  inanimate  thing  has  contributed, 
with  the  negligence  of  the  defendant,  to 
cause  the  injury,  the  plaintiff  may  recover, 
if  the  negligence  of  the  defendant  was  an 
efficient  cause  of  the  injury.  Pullman  Pal- 
ace Car  Co  V.  Laack,  143  ///.  242.  32  N.  E. 
Rep.  285.  Lapleine  v.  Morgan's  L.&'T.  R. 
6-  S.  Co.,  37  Am.  &*  Eng.  R.  Cas.  348,  40 
La.  Ann.  661,  i  L.  R.  A.  378.  4  So.  Rep.  875. 
Brehm  v.  Great  Western  R.  Co.,  34  Barb.  (N. 
V.)  256.  —  Reviewing  Chapman  7/.  New 
Haven  R.  Co.,  19  N.  Y.  341.— Phillips  v. 


A'tw  York  C.  &^  H.  R.  R.  Co.,  127  A'.  Y.  657. 
3  Silv.  App.  467,  27  ^V.  E.  Rep.  978,  38  A'.  Y. 
S.  R.  675  ;  affirming  53  Hun  634.  mem.,  25  N. 
Y.  S.  R.  91.  3  Silv.  Sup.  CI.  5, 6  A^.  Y.  Supp. 
62 1 .  East  Tenn. ,  V.&*  G.  R.  Co.  v.  Fain,  1 9 
Am.  &•  Eng.  R.  Cas.  102,  12  Lea  ( Tenn.\  35. 
—Approving  Nashville  &  C.  R.  Co.  v.  Car- 
roll, 6  Heisk.  (Tenn.)  347.— Followed  in 
East  Tenn.,  V.  &  G.  R.  Co.  v.  Guiley,  17 
Am.  &  Eng.  R.  Cas.  568,  12  Lea  46. 

Where  the  negligence  of  two  independ- 
ent persons  results  in  injury  to  a  ti)ird,  and 
neither  is  sufficient  in  itself,  both  will  be 
treated  in  combination  as  the  proximate 
cause  of  the  injury.  Pullman  Palace  Car 
Co.  V.  Laack,  143  ///.  242,  32  A^.  E.  Rep.  285. 

The  negligence  of  one  for  whose  acts  the 
plaintiff  is  not  responsible,  however  much  it 
may  have  contributed  to  the  injury  for 
which  the  plaintiff  sues,  is  no  defense  in  be- 
half of  a  defendant  whose  negligence  is  the 
proximate  cause  of  such  injury.  The  fact 
that  both  the  defendant  and  such  stra.iger 
are  each,  on  account  of  his  own  negligeice, 
liable  to  the  plaintiff  is  no  defense  to  either 
such  defendant  or  stranger.  Jacksonville, 
T.  <S-  K.  W.  R.  Co.  V.  Peninsular  L.,  T.  i5- 
M.  Co.,  49  Am.  &*  Eng.  R.  Cas.  603,  27  Fla. 
I,  g  So.  Rep.  661. 

Where  two  causes  combine  to  produce  an 
injury,  both  of  which  causes  are  proximate 
in  their  character,  the  one  being  the  result 
of  culpable  negligence  and  the  other  an 
occurrence  to  which  neither  party  is  at 
fault,  the  negligent  party  is  liable,  provided 
that  the  injury  would  not  have  been  sus- 
tained but  for  such  negligence.  Grimes  v. 
Louisville.  N.  A.  &-  C.  R.  Co.,  3  Ind.  App. 
m<y>^-  E.  Rep.  200.  Johnson  V.  Northwest- 
ern Tel.  Exch.  Co.,  48  Minn.  433,  51  A^.  W. 
Rep.  225.  Boggs  V.  Missouri  Pac.  R.  Co.,  18 
Mo.  App.  274.— Quoting  Nagelw.  Missouri 
Pac.  R.  Co.,  75  Mo.  653.— Reviewed  in 
Morrison  v.  Kansas  City,  St.  J.  &  C.  B.  R. 
Co.,  27  Mo.  App.  a,\^.— Houston  6-  T.  C.  R. 
Co   V.  McDonough,  i    Tex.  App.  (Civ.  Cas.) 

354. 

The  innocent  or  culpable  act  of  a  third 
person  may  be  the  immediate  cause  of  the 
injury,  and  still  an  earlier  wrongful  act  may 
have  contributed  so  effectually  to  it  as  to  be 
regarded  as  the  efficient  act,  or  at  least  the 
concurrent  and  responsible  cause.  And 
.while  it  is  true,  generally,  that  where  the 
wrongful  act  of  one  party  affords  only  the 
occasion  for  the  wrongful  act  of  another  it 
is  too  remote  as  to  the  first  wrong-doer,  yet 


I 


NEGLIGENCE,  48. 


I 


I 
I 


this  rule  is  always  subject  to  the  qualifica- 
tion unless  the  injury  thus  ensuing  was 
sucli  as  was  likely,  according  tu  the  general 
experience,  to  happen  fron)  such  conduct, 
or  where  the  misconduct  offering  such  op- 
portunity consists  in  the  omission  of  some 
precaution  it  was  the  defendant's  duty  to 
take  aj^ainst  such  loss  as  has  occurred. 
Morrison  v.  Kansas  City,  St.  J.  &*  C.  B,  A. 
Co.,  27  Mo.  App.  418.— Quoting  Nagel  v. 
Missouri  Pac.  R.  Co.,  75  Mo.  653.  Rhview- 
ING  Boggs  f.  Missouri  Pac.  R.  Co.,  18  Mo. 
App.  274. 

Where,  in  an  action  to  recover  damages 
for  personal  injuries  alleged  to  have  been 
caused  by  the  negligence  of  the  defendant, 
it  appears  that  there  were  two  or  more  pos- 
sible causes  of  the  injury,  for  one  or  more 
of  which  the  defendant  was  not  responsible, 
the  plaintiff  in  order  to  recover  must  show 
by  evidence  that  the  injury  was  wholly  or 
partly  the  result  of  a  cause  for  which  the 
defendant  is  responsible.  If  the  evidence 
leaves  it  just  as  probable  that  the  injury  was 
the  result  of  one  cause  as  of  the  other,  the 
plaintiff  cannot  recover.  Grant  v.  Pennsyl' 
iiania  &«•  A'.  Y.  C.  <&<•  ^i".  Co.,  133  N.  V.  657. 
31  N.  E.  Rep.  220,  45  N.  V.  S.  A'.  305  ;  re- 
versi'njT  59  Hun  616,  tnein.,  35  N.  V,  S,  R. 
999.  14  A^.  Y.  Supp.  948. 

Plaintiff  was  crossing  a  street  when  de- 
fendant's horse  became  frightened  at  a  pass- 
ing elevated  train  and  shied  against  plaintiff, 
producing  the  injury  complained  of.  The 
evidence  tended  to  ohow  negligence  in  the 
manner  of  driving  the  horse.  Held,  that  if 
the  passing  train  and  the  driver's  negli- 
gence were  concurrent  causes,  equally  effi- 
cient in  producing  the  result,  the  accident 
was  attributed  to  both  or  either,  and  it  was 
for  the  jury  to  determine  which  was  the 
proximate  cause.  Van  Houten  v.  Fleisch- 
mann,  20  N.  Y.  Supp.  643,  i  Misc.  130,48 
A^.  Y.  S.  R.  763 ;  affirmed  in  142  N.  Y.  624, 
37  JV.  E.  Rep.  565,  60  A^.  Y.  S.  R.  867. 

48.  Effect  of  ail  iuterieiiiiig  cause 
of  injury.* — In  determining  what  is  the 
proximatecauseof  an  injury  one  of  the  most 
valuable  of  the  criteria  is  to  ascertain 
whether  any  new  cause  has  intervened  be- 
tween the  facts  accomplished  and  the  al- 
leged cause.  Denver,  T.  &*  G.  R.  Co.  v. 
Robbins,  2  Colo.  App.  313,  30  Pac.  Rep.  261. 
—Quoting  Milwaukee  &  St.  P.  R.  Co.  v. 


*  Liability  for  neRligence   where  there  is  an 
intervening  cause,  see  note,  8  L.  R.  A.  84. 


Kellogg,  94  U.  S.  470.  Reviewing  Billman 
V.  Indianapulis,  C.  &  L.  R.  Co.,  76  Ind.  166. 
—  West  Ma/ianoy  Tp.  v.  Watson,  1 1 2  Pa.  St. 
574,  9  ////.  Rep.  430,— Distinguished  in 
Boss  V.  Northern  Pac.  R.  Co.,  2  N.  Dak. 
1 2i.— Bunting  v.  Hog  sett,  48  .,'/;/*.  &•  Eng.  R. 
Cas.  87,  139  Pa.  St.  363,  21  Atl.  Rep.  31. 

To  entitle  a  party  to  recover  damages  of 
a  railroad  company  on  account  of  the  negli- 
gence of  its  agents,  it  should  appear  that 
the  negligence  was  the  natural  and  proxi- 
mate cause  of  the  injury  ;  for  should  it  ap- 
pear that  the  negligence  of  the  railroad 
company  would  not  have  damaged  the 
party  complaining  but  for  the  interposition 
of  a  separate  independent  agency,  over 
which  the  railroad  company  neither  had  nor 
exercised  control,  then  the  party  complain- 
ing cannot  recover.  Perry  v.  Central  R. 
Co.,  66  Ga.  746. — Distinguished  in  Geor- 
gia R.  &  B.  Co.  V.  Friddell,  79  Ga.  489.— 
Chicago,  St.  P.,  M.  6-  O.  R.  Co.  v.  Elliott, 
55  Fed.  Rep.  949.  Wright  v.  Chicago  &•  jV. 
W.R.  Co.,  27  ///.  App.  200.  Clari'  v.  M^il- 
mington  Sr*  W.  R.  Co.,  48  Am.  &*  Eng.  R. 
Cas.  546,  109  A^.  Car.  430,  14  S.  E.  Rep.  43. 
Scale  V.  Gulf,  C.  &-  S.  F.  R.  Co.,  65  Tex. 
274,  57  Am.  Rep.  602. 

An  intervening  sufficient  cause  is  a  new 
and  independent  force,  which  breaks  the 
causal  connection  between  the  original 
wrong  and  the  injury,  and  it  becomes  the 
direct  and  immediate— i.  e..  the  proximate 
— cause  of  the  injury.  The  test  is,  was  it  a 
new  and  independent  force,  acting  in  and 
of  itself  in  causing  the  injury,  and  supersed- 
ing the  original  wrong  so  as  to  make  it 
remote  in  the  chain  of  causation  ?  Pullman 
Palace  Car  Co.  v.  Laack,  143  ///.  242,  32  A^. 
E.  Rep.  285. 

Any  number  of  causes  and  effects  may  in- 
tervene between  the  first  wrongful  cause  and 
the  final  injurious  consequence,  and  if  they 
are  such  as  might  with  reasonable  diligence 
have  been  foreseen,  the  last  result,  as  well 
as  the  first  and  every  intermediate  result,  is 
to  be  considered  in  law  as  the  proximate 
result  of  the  first  wrong  cause.  Wright  v. 
Chicago  &*  N.  W.  R.  Co.,  27  III  App.  200. 
—Quoting  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Stanford,  12  Kan.  354. — Pullman  Palace 
Car  Co.  V.  Laack.  41  ///.  App.  34. — Quot- 
ing Milwaukee  &  St.  P.  R.  Co.  v.  Kellogg, 
94  U.  S.  469. — Harriman  v.  Pittsburgh,  C. 
&'  St.  L.  R.  Co.,  32  Am.  <S-  Eng.  R.  Cas. 
37,  45  Ohio  St.  II,  12  N.  E.  Rep.  451.— 
Following  Lynch  v.  Nurdin,  i  Q.  B,  29.— 


^p 


NEGLIGENCE,  40. 


797 


Seale  v.  Gulf,  C.  &*  S.  F.  R.  Co.,  65  Tex. 
274,  57  Am.  Rep.  602. 

In  an  action  for  damages  resulting  from 
negligence  there  must  be  a  direct  connection 
between  the  negligent  act  and  the  injury. 
Furthermore,  there  must  be  such  nearness 
in  the  connection  that  it  must  be  the  pri- 
mary cause.  And  if  there  be  the  concur- 
rence of  some  other  immediate  agency  in 
producing  the  injury, "  that  event  must  have 
been  the  effect  of  the  act  coinphiined  of,  or 
within  the  range  of  probable  occurrences 
to  persons  of  ordinary  comprehension  while 
engaged  in  the  act."  Gillilami  v.  Chicago 
&*  A.  R.  Co.,  19  Mo.  App.  41 1. 

The  ruie  that  the  causal  connection  be- 
tween the  negligent  act  and  the  injury  may 
be  broken  by  the  interposition  of  a  respon- 
sible human  agency  will  not  be  applied  to 
relieve  one  of  liability  for  a  negligent  act 
by  interposing  another  also  committed  by 
himself.  Burger  v.  Missouri  Pac.  R.  Co., 
112  Mo.  238,  20  S.  VV.  Rep.  439. 

The  direct  or  proximate  consequences  of 
a  wrongful  act  are  those  which  occur  witli- 
out  any  intervening  independent  cause ;  and 
the  fact  that  the  injuries  chiefly  complained 
of  were  caused  immediately  by  the  act  of 
plaintiffs  in  walking  from  the  place  where 
they  left  the  cars  to  the  next  station  will 
not  relieve  defendant  from  liability  therefor 
where  it  appears  that  the  plaintiffs'  act  in 
so  walking  was  rendered  apparently  neces- 
sary by  defendant's  wrongful  act,  and  was 
not  negligent.  Brozvn  v.  Chicago,  M.  &*  St. 
P.  R.  Co.,  3  Am.  &»  Eng.  R.  Cas.  444,  54 
Wis.  342,  \l  N.  W.  Rep.  356,  911,  41  Am. 
Rep.  41. — Disapproving  Pullman  Palace 
Car  Co.  V.  Barker,  4  Colo.  344.  Quoting 
Milwaukee  &  St.  P.  R.  Co.  v.  Kellogg.  94 
U.  S.  475.  Reviewing  Indianapolis,  B.  & 
W.  R.  Co.  V.  Birney,  71  111.  391 ;  Francis  v. 
St.  Louis  Transferee,  5  Mo.  App.  7.— Fol- 
lowed in  Atkinson  v.  Goodrich  Transp. 
Co.,  60  Wis.  141. 

Where  the  evidence  tends  strongly  to 
show  that  the  injury  complained  of  was 
the  result,  not  of  defendant's  negligence, 
but  of  an  ordinary  cut,  aggravated  by  a  de- 
praved condition  of  plaintiff's  system,  the 
court  properly  instructed  that  plaintiff  could 
not  recover  if  the  jury  found  that  plaintiff's 
injury  occurred  by  reason  of  the  impurity 
of  his  blood.  Kitteringham  v.  Sioux  City 
<S-  P.  R.  Co.,  18  Am.  6-  Eng.  R.  Cas.  14,  62 
Iowa  285,  17  N.  IV.  Rep.  585. 

Plaintif!  was  navigating  a  boat  down  a 


rivor  in  charge  of  a  heavy  tow  on  a  strong 
current.  As  he  neared  defendant's  railroad 
bridge  he  signaled  the  draw  to  open,  which 
was  not  obeyed,  and  when  near  the  bridge 
he  attempted  to  swing  the  boat  and  tie  to 
the  shore  before  reaching  the  bridge,  but  a 
chain  broke  and  the  boat  drifted  against 
the  bridge  and  was  injured.  He/ti,  that 
even  if  the  breaking  of  the  chain  was  the 
immediate  cause  of  the  injury,  still  the 
company  was  liable  if  its  negligence  in  fail- 
ing to  open  the  draw  was  the  cause  of  iis 
breaking  by  reason  of  a  stronger  pressure 
on  it  in  trying  to  swing  the  boat  against  the 
current.  A'ing  v.  Ohio  &•  M.  R.  Co.,  25  Feti. 
Rep.  799.— Following  King  v.  Ohio  &  M. 
R.  Co.,  24  Fed.  Rep.  335. 

49.  What  will  be  dcciiicd  to  be  tlio 
proximate  cause  of  an  injury."^— A 
proximate  cause  is  that  which  stands  next 
ill  causation  to  the  effect,  not  necessarily  in 
time  and  space,  but  in  causal  relation. 
Pullman  Palace  Car  Co.  v.  Laack,  143  ///. 
242,  32  N.  E.  Rep.  285.  Union  Pac.  R.  Co. 
v.  Callaghan,  56  Fed.  Rep.  988,  12  U.S. App. 
541,  6  C.  C.  A.  205.— Quoting  Chicago,  St. 
P.,  M.  &  O.  R.  Co.  V.  Elliott,  55  Fed.  Rep. 
949;  Milwaukee  &  St.  P.  R.  Co.  v.  Kellogg, 
94  U.  S.  469. 

If  the  negligence  of  a  defendant  puts  in 
motion  the  destructive  agency,  and  the  re- 
sult is  directly  attributable  thereto,  and 
there  is  no  intervention  of  a  new  force  or 
power  of  itself  sufficient  to  stand  as  the 
cause  of  the  mischief,  the  negligence  of  the 
defendant  must  be  considered  as  the  proxi- 
mate cause  of  the  injury.  Pullman  Palace 
Car  Co.  v.  Laack,  143  ///.  242,  32  A^  E.  Rep. 
285. 

An  act  is  the  proximate  cause  of  an  in- 
jury when  the  injury  is  the  natural  and 
probable  consequence  of  the  negligence  or 
wrongful  act,  and  which,  in  the  light  of  at- 
tending circumstances,  should  have  been 
foreseen.  Eames  v.  Texas  &•  N.  O.  R.  Co., 
22  Am.  <S»  Eng.  R.  Cas.  540,  63  Tex.  660. 
Jacksonville,  T.  <S«»  K.  IV.  R.  Co.  v.  Peninsu- 
lar L.,T.&-  M.  Co.,  49  Atn.  &•  Eng.  R.  Cas, 
603,  27  Fla.  I,  9  So.  Rep.  661. — FOLLOWING 
Fent  V.  Toledo,  P.  &  W.  R.  Co.,  59  111.  349. 
—Handelun  v.  Burlington,  C.  R.  &•  N.  R. 
Co.,  72  Iowa  709,  32  N.  W.  Rep.  4. — FoL- 

*  What  is  and  what  is  not  proximate  cause,  see 
note,  8  Am.  &  Eng.  R.  Cas.  62. 

Various  illustrations  of  doctrine  of  proximate 
and  remote  cause,  see  nutes,  50  Am.  Rep.  569; 
7  L.  R.  A.  132. 


I 


798 


NBGLIOBNCE,  50. 


m 


r  s 


LOWING  Crowley  v.  Burlington,  C.  R.  &  N. 
R.  Co..  65  Iowa  6li.— Baltimore  City  Pass. 
Ji.  Co.  V.  McDonnell,  43  Md.  534, 14  Am.  Ky. 
Rep.  272. 

If  an  injury  results  from  a  negligent  act 
of  a  defendant,  sucii  act  will  be  deemed  the 
proximate  cause  unless  the  consequences 
are  so  unnatural  and  unusual  that  they  could 
not  have  been  foreseen  and  provided 
against  by  the  highest  practicable  care. 
LoHis7>ille,  N.  A.  &^  C.  A'.  Co.  v.  Lucas,  119 
/mi.  583.  21  N.  E.  Rep.  968. 

A  [iroxiniate  cause  is  therefore  a  probable 
cause,  and  a  remote  cause  an  improbable 
cause.  Jackson  v.  Nas/iville,  C.  <S-  St.  L.  R. 
Co.,  19  Am.  &*  Eng.  A'.  Cas.  433,  13  Lea 
( Tenn.)  491,  49  Am.  Rep.  663. 

Where  plaintiff  was  struck  and  injured 
while  walking  along  a  path  by  the  side  of  a 
railroad  track  by  a  cow  which  was  thrown 
from  the  track  by  the  engine,  and  which  fell 
against  plaintiff  after  striking  the  ground, 
the  injury  is  the  proximate  consequence  of 
the  engine  striking  the  cow.  Alabama  G. 
S.  R.  Co.  V.  Chapman,  31  Am.  &^  Kng.  R. 
Cas.  394,  80  Ala.  61 5,  2  So.  Rep.  738  \  further 
appeal,  83  Ala.  453,  3  So.  Rep.  813. 

The  failure  of  an  engineer  to  use  the 
means  possessed  at  the  tin>s  and  adequate 
to  prevent  an  injury  is  the  proximate  cause 
of  an  accident.  Bell  v.  Hannibal  &*  St.  J. 
R.  Co.,  Zd  Mo.  599. 

The  fact  of  a  plate  of  a  frog  being  out  of 
repair  having  caused  an  employe  to  stumble, 
the  defective  plate  must  be  regarded  as  the 
proximate  cause  of  the  injury.  Waldhier 
V.  Hannibal  <3-  St.  J.  R.  Co.,  87  Mo.  yj. 

If  one  who  enters  upon  the  track  of 
a  railway  when  no  train  is  in  sight  should, 
from  providential  cause,  become  insensible 
while  there,  and  in  that  condition  be  run 
over  and  injured  by  a  train  while  lying  in 
open  view,  the  company  would  be  liable  in 
damages  on  account  of  that  negligence  on 
the  part  of  its  agents  in  not  discovering  the 
helpless  man  which  was  the  proximate  cause 
of  the  injury.  Houston  &>•  T.  C.  R.  Co.  v. 
Sympkins,  6  Am.  &*  Etig.  R.  Cas.  1 1,  54  Tex. 
615. 

A  town  is  liable  to  one  who  is  injured 
while  attempting  to  extricate  his  horse  that 
had  broken  through  a  bridge  that  the  town 
was  required  to  keep  in  repair.  The  cause  of 
the  injury  is  sufficiently  proximate.  Stick- 
ney  v.  Maidstone,  30  Vt.  738.  — DISTIN- 
GUISHED IN  Pike  V.  Grand  Trunk  R.Co.,  38 
Am.  &  Eng.  R.  Cas.  336,  39  Fed.  Rep.  255. 


Plaintif!  was  riding  with  others  on  an 
elevated  train,  when  a  blockade  prevented 
the  train  reaching  a  station,  and,  at  the  in- 
vitation of  the  conductor,  they  got  out  to 
walk  on  the  boards  at  the  side  of  the  track. 
Before  reaching  the  station  the  train  moved 
up,  and  in  the  general  panic  that  ensued 
plaintifl  fell  to  the  street  below.  The  com- 
pany contended  that  the  fall  was  caused  by 
other  passengers,  who  where  entering  at 
the  station,  who  pushed  or  jostled  plaintiff. 
Held,  tliat  if  the  accident  was  caused  as  the 
company  claimed  there  could  be  no  recov- 
ery; but  it  was  for  the  jury  to  determine, 
under  the  evidence,  what  was  the  proximate 
cause  of  the  injury.  McCabe  v.  Manhattan 
El.  R.  Co.,  2$  N.  y.  S.  R.  631,  53  Hun  636, 
3  Silv.  Sup.  Ct.  324,  6  A'.  V.  Supp.  418. 

50.  Wliut  caiiHCM  of  injury  ure  too 
remote* — Negligence  in  starting  a  train 
without  giving  a  signal  does  not  make  the 
company  liable  to  one  who  is  injured  by 
stumbling  and  falling  in  the  way  of  the 
train,  as  such  falling  is  the  immediate 
cause  of  the  injury.  Barkley  v.  Missouri 
Pac.  R.  Co.,  96  Mo.  367,  9  i^   \V.  Rep.  793. 

Negligence  of  a  railway  company  that, 
causes  separation  of  the  cars  of  a  moving 
train  is  not  the  proximate  cause  of  an  in- 
jury sustained  by  a  person  who  subsequently 
came  upon  the  track  in  front  of,  and  was 
struck  by,  the  detached  cars,  which  were 
moving  by  impetus  and  gravitation. /"a/Z^j/jv. 
East  Tenn.,  V.  fi-  G.  R.  Co.,  48  Am. &^  Eng. 
R.  Cas.  581, 89  Tenn.  370,  15  5.  fF.  Rep.  919. 

Defendant  left  a  "  live  "  engine  on  a  side 
track  two  tracks  from  the  main  track  in 
charge  of  an  employe,  but  during  the  night 
he  left  it,  and  some  one  unknown  pushed  it 
to  the  main  track  and  started  it  at  full  speed 
without  any  light,  and  it  ran  into  an  incom- 
ing train,  producing  the  injury  sued  for. 
Held,  that  the  act  of  the  company  in  leav- 
ing the  engine  where  it  did  was  not  the 
proximate  cause  of  the  injury,  as  such  a  re- 
sult could  not  be  reasonably  expected  to 
occur  or  be  foreseen  by  ordinary  forecast. 
Mars  V.  Delaware  &*  H.  Canal  Co.,  54  Hun 
625.  28  A^.  y.  S.  R.  228,  8  A^.  y.  Supp.  107. 
— Applying  Ryan  v.  New  York  C.  R.  Co., 
35  N.  Y.  210;  Lowery  w.  Manhattan  R,  Co., 
99  N.  Y.  158  ;  Pollett  v.  Long,  56  N.  Y.  200; 

*  Various  illustrations  of  the  doctrine  of 
"  proximate  and  remote  cause "  as  applied  to 
causes  of  injury  and  damages  in  case  of  neg- 
ligence, see  notes,  52  Am.  Rep.  157;  7  L.  R.  A. 
133- 


NEGLIGENCE,  51,ft2. 


799 


Hofnagle  v.  New  York  C.  &  H.  R.  R.  Co., 
55  N.  Y.  608.  Quoting  Williams  v.  Dela- 
ware. L.  &  W.  R.  Co.,  39  Hun  434. 

A  company  left  a  car  on  its  track  very 
near  a  street-car  track,  but  so  that  street- 
cars could  pass  with  safety  when  driven  in 
the  usual  manner.  A  street-car  was  being 
driven  at  an  unusual  rate  of  speed,  causing 
it  10  sway  more  than  wlien  properly  driven; 
it  collided  with  the  car  and  injured  a  pas- 
senger. Heiil,  that  leaving  the  car  so  near 
llie  track  was  only  the  remote  cause  of  the 
injury,  and  the  railroad  company  was  not  li- 
able to  the  passenger.  Texas  &•  P.  A'.  Co. 
v.  Do/wrty,  4  Tex.  App.  (Civ.  Cas.)  231,  15 
.S".  H".  Rcf).  44. 

II.   QDESTIOKS  OF  LAW  AND  FACT. 

I .  Questions  of  Law  for  the  Court. 

51.  Ill  geiiernl.*  —  What  amounts  to 
negligence  is  a  question  of  law.  Herring 
V.  Wilmington  6-  A'.  A".  Co.,  10  Ireii.  (/V. 
CVi*-.)  402.— Rkviewkd  in  Doggett  7/.  Rich- 
mond &  D.  R.  Co..  81  N.  Car.  ^19-— fleas- 
ants  V.  A'a/ei^'/t  &•  A.  A.  L.  R.  Co.,  95  A^, 
Car.  195. 

The  existence  of  negligence,  upon  a  given 
state  of  facts,  is  generally  to  be  ascertained 
and  declared  by  the  court ;  but  cases  may 
occur  where  facts  are  so  inseparably  mixed 
in  giving  a  complexion  to  the  result  as  to 
require  submission  to  the  jury.  Sellars  v. 
Richmond  &*  D.  R.  Co.,  2$  Am.  &>  Eng.  R. 
Cas.  451,  94  A'^,  Car.  654. 

Whether  there  is  any  evidence  tending  to 
establish  the  negligence  charged  is  a  ques- 
tion of  law  for  the  court.  O'Malley  v. 
Missouri  Pac.  R.  Co.,  53  Am.  &^  Eng.  R. 
Cas.  280,  113  Mo.  319.  20  .S".  IV.  Rep.  1079. 

There  are  cases  where  the  question  of 
negligence  may  be  properly  one  of  law  for 
the  court ;  but  such  cases  always  present 
some  prominent  and  decisive  act.  not  de- 
pendent upon  surrounding  circumstances 
for  its  quality,  and  in  regard  to  the  effect 
and  character  of  which  no  room  is  left  for 
ordinary  minds  to  differ.  Baltimore  &*  O. 
R.  Co.  V.  Fitzpatrick,  35  Md.  32.— Quoted 
IN  Baltimore  &  O.  R.  Co.  v.  Keedy,  75  Md. 
320. 

Where  there  has  been  an  omission  of 
some  act  of  duty,  or  where  there  is  some  act 
of  imprudence  which  no  reasonably  careful 

*  Functions  of  court  and  of  jury  in  negligence 
cases,  see  note,  i;  L.  R.  A.  332. 


man  would  ccjmmit,  if  any  accident  is 
caused  thereby,  the  court  as  matter  of  law 
declares  the  party  in  default  as  negligent 
and  denies  him  a  recovery.  But  in  ordi- 
nary cases  the  question  of  negligence  must 
be  decided  by  the  jury.  Baltimore  &*  O.  R. 
Co.  v.  Owings,  28  Am.  6h  En^.  R.  Cas.  639, 
65  Md.  502.  5  Atl.  Rep.  329.— QuoriNU 
Cu  iberland  Valley  R.  Co.  v.  Maugans,  61 
Nlj.  53. 

The  question  of  negligence  is  to  be  de- 
cided by  all  the  evidence  in  the  case;  and 
it  is  not  proper  to  separate  a  few  facts  from 
others,  and  ask  the  court  to  instruct  the 
jury,  as  a  conclusion  of  law,  that  they  would 
constitute  negligence.  Baltimore  &*  O.  R. 
Co.  V.  Boteler,  38  Md.  568,  \o  Am.  Ry.  Rep. 
506. 

Unless  there  is  something  in  the  proof, 
taken  as  a  whole,  which,  if  believed  by  the 
jury,  would  establish  a  failure  to  perform  a 
legal  duty,  or  to  use  reasonable  care  and 
prudence  in  what  is  done,  the  question  of 
negligence  should  not  be  submitted  to  them. 
Heaney  v.  Long  Island  R.  Co.,  37  Am.  &^ 
Eng,  R,  Cas.  529,  112  A^.  F.  122,  19  A'.  E. 
Rep.  422.  20  N.  y.  S.  R.  296;  reversing  9 
A',  v.  S.  R.  707.  —  Quoting  Grippen  v. 
New  York  C.  R.  Co.,  40  N.  Y.  34. — Distin- 
guished in  McNamara  v.  New  York  C.  & 
H.  R.  R.  Co..  136  N.  Y.  650. 

52.  StaiHlnrd  of  duty  flxcd  by  law. 
—  The  conception  of  negligence  involves 
the  idea  of  a  duty  to  act  in  a  certain  way 
towards  others  and  a  violation  of  that  duty 
by  acting  otherwise.  It  involves  the  exist- 
ence of  a  standard  with  which  the  given 
conduct  is  to  be  compared  and  by  wiiich  it 
is  to  be  judged.  Where  this  standard  is 
fixed  by  law.  the  question  whether  the  con- 
duct in  violation  of  it  is  negligence  is  a 
question  of  law.  And  where  the  standard 
is  fixed  by  the  general  agreement  of  men's 
judgments,  the  court  will  recognize  and 
apply  the  standard  for  itself.  Farrell  v. 
Waterbury  Horse  R.  Co.,  46  Am.  <S-  Eng.  R. 
Cas.  207,  60  Conn.  239.  21  Atl.  Rep.  675,  22 
Atl.  Rep.  544. 

While  negligence  is  always  a  question  of 
fact  when  the  law  is  silent  touching  the 
specific  act  done  or  left  undone,  yet  where 
a  statute  expressly  enjoins  an  act,  the  act  is 
then  within  all  degrees  of  diligence,  even 
the  very  lowest,  and  its  omission  is  negli- 
gence as  matter  of  law.  Central  R.  <S-»  B. 
Co.  v.  Smith,  34  Am.  &*  Eng.  R.  Cas.  i.  78 
ixtt.  694,  3  S.  E.  Rep.  397.    Empire  Transp. 


I 


^ 


m 


NEGLIGENCE,  53. 


Co.  V.  U'amsutta  O.  K.  &*  M.  Co.,  63  Pa.  St. 
14.  Pittsburgh,  O.  &•  E.  L.  Pass.  A'.  Co.  v. 
A'anf,  (Pa.)  6  A//.  Rep.  845. 

So  when  tliere  is  such  an  obvious  dis- 
regard of  duty  and  safety  as  amounts  to 
misconduct;  but  where  the  measure  of  duty 
varies,  and  both  the  duty  and  extent  of  its 
performance  are  to  be  ascertained  from 
facts,  the  jury  alone  can  ascertain  whctlier 
the  negligence  has  been  proved.  Chicago 
6-  E.  I.  A'.  Co.  v.  n/ton,  29  ///.  .///.  95 ; 
denying  rehearing  from  26  ///.  App.  362. 

li'A,  FtivtH  uiieuiitrovi>rt4sl  iiiid 
only  one  infi'treiiL'c  to  l>v  Urawii.— 
When,  on  the  undisputed  evidence,  aided 
by  the  legitimate  inferences  which  may 
reasonably  be  drawn  from  it,  the  injury  to 
the  plaintiff  was  caused  by  his  own  negli- 
gence, or  by  accident  without  fault  on  the 
part  of  the  defendant,  the  court  is  not  re- 
quired to  submit  the  question  of  negligence 
to  the  jury,  but  may  give  the  general  aflir- 
mative  charge  in  favor  of  tlie  defendant. 
Smith  v.  Georgia  Pac.  R.  Co.,  41  Am.  Sr* 
Eng.  R.  Cas.  143,  88  Ala.  538,  7  So,  Rep.  1 19. 
Flemming  v.  IVestern  Pac.  R.  Co.,  49  Cal. 
253,  7  Am.  Ry.  Rep.  265.  —  Followed  in 
Fernandes  v.  Sacramento  City  R.  Co.,  52 
Cal.  45.  Reviewed  IN  Bunting  z/.  Central 
Pac.  R.  Co.,  14  Nev.  351. — Colorado  C.  R. 
Co.  V.  Holmes,  8  Am.  &*  E^ng.  R.  Cas.  410,  5 
Colo.  197 ;  see  5  Colo.  516.  Louisville  6-  N.  R, 
Co.  V.  Eves,  I  /fid.  App.  224,  27  A^.  E.  Rep. 
580.  Kansas  Pac.  R.  Co.  v.  Butts,  7  Kan.  308, 
2  Am.  Ry.  Rep.  477.  Louisville  &•  P.  Canal 
Co.  V.  Murphy,  qBush  {Ky.)  522.  Baltimore 
&>  P.  R.  Co.  v.  State,  54  Md.  648.  Under  hill 
v.  Chicago  <S-  G.  T.  R.  Co.,  81  Mich.  43,45  N. 
W.  Rep.  508.  Fletcher  v.  Atlantic  (S-  P.  R. 
Co.,  64  Mo.  484,  1 7  Am.  Ry.  Rep.  303.  State 
V.  Grand  Trunk  R.  Co.,  65  A^.  H.  663,  23 
Atl.  Rep.  525.  Gonzales  v.  New  York  &*  H. 
R.  Co. ,  38  N.  V.  440 ;  reversing  39  Now.  Pr. 
407,  6  Ro6t.  93,  297 ;  affirming  \  Sweeny  506. 
—Distinguished  in  Gillespie  w.  Newburgh, 
54  N.  y.  468;  Boss  V.  Providence  &  W.  R. 
Co.,  15  R.  I.  149, — Biles  V.  Holmes,  11  Ired. 
(N.  Car.)  16.— Quoted  in  Emry  v.  Raleigh 
&  G.  R.  Co.,  109  N.  Car.  589.— 5"w////  v. 
Richmond  &>  D.  R.  Co.,  34  Am.  &*  Eng.  R. 
Cas.  557,  99  N.  Car.  241,  5  S.  E.  Rep.  896.— 
Quoting  Tuff  v.  Warman,  5  C.  B.  N.  S. 
573;  Turrentine  v.  Richmond  &  D.  R.  Co., 
92  N.  Car.  638;  Owens  v.  Richmond  &  D. 
R.  Co.,  88  N.  Car.  502.— 5w///  v.  Newbttry, 
36  Vt.  355.— Quoting  Todd  v.  Old  Colony 
&  F.  R.  R.  Co..  3  Allen  (Mass.)  \%.— Wool- 


wine  V.  Chesapeake  <S-  O.  R.  Co.,  36  W,  Va, 
329,  15  i*.  E.  Rep.  81.  Delaney  v.  Milwaukee 
&*  St.  P.  R.  Co.,  33  Wis.  67.— Quoted  in 
Solen  V,  Virginia  (ST.  R.  Co.,  13  Nev.  106.— 
Goldstein  v.  Chicago,  M.  &^  St.  P.  R.  Co.,  46 
li'is.  404,  21  Am.  /^y.  A'cp.  391. 

Where  the  case  made  by  the  evidence 
is  such  that  reasonable  men  unatTected  by 
bias  or  prejuflice  would  be  agreed  concern- 
ing the  presence  or  absence  of  due  care,  the 
court  would  be  jiistiliod  in  saying  that  the 
law  deduced  the  conclusion  accordingly;  if 
the  facts  are  uiiamhi^uoiis,  and  there  is  no 
room  for  two  honest  and  ap[)arenily  reason- 
able ronclusioiis,  the  court  should  not  be 
compelled  to  submit  the  qu'jstion  of  negli- 
gence to  the  jury  as  one  in  dispute.  John- 
son  v.  Baltimore  &^  O.  R.  Co.,  25  W.  I'a.  570. 
Northwestern  Fuel  Co.  v.  Danielson,  57  Fed. 
y»V/.  915.  Ttr re  Haute  &^  L  R.  Co.  v.  I'oel- 
ker,  39  Am.  &-  Eng.  R.  Cas.  615,  129  ///.  540, 
22  A'.  E.  Rep.  20;  affirming  31  ///.  App. 
314.  Lake  Shore  &*  M.  S.  R.  Co.  v.  Pinchin, 
31  Am.  »&*  Eng,  R.  Cas.  428,  112  Ind.  592, 
1 1  West  Rep.  247,  13  N.  E.  Rep.  677.  Dcwald 
v.  Kansas  City,  F't.  S.  &»  G.  R.  Co.,  47  Am, 
&*  Eng.  R.  Cas.  557,  44  Kan.  586,  24  Pac. 
Rep.  iioi.  Sadowski  V.  Michigan  Car  Co., 
84jUich.  ioo,47iV.  W.  Rep.  598.  Tetherow 
v.  St.  Joseph  Or*  D.  M.  R.  Co.,  98  Mo.  74,  11 
S.  W.  Rep.  310.  Becke  v.  Missouri  Pac.  R. 
Co.,  45  Am.  &*  Eng.  R.  Cas.  174,  102  Mo.  544, 
13  S.  W.  Rep.  1053.— Quoting  Tabler  v. 
Hannibal  &  St.  J.  R.  Co.,  93  Mo.  79;  Barry 
V.  Hannibal  &  St.  J.  R.  Co.,  98  Mo.  62.- 
O'Mellia  v.  Kansas  City,  St.  J.  <S-  C.  B.  R. 
G».,  115  Mo.  205,  21  5.  W^.  Rep.  503.  Worth- 
ington  V.  Central  Vt.  R.  Co.,  52  Am.  &^  Eng. 
R.  Cas.  384,  64  Ft.  107,  23  Atl.  Rep.  590,  1 5 
L.  R.  A.  326. — Approving  Filer  ?'.  New 
York  C.  R.  Co.,  49  N.  Y.  47.  Reviewing 
Hunter  z/.  Cooperstown  &  S.  V.  R.  Co..  112 
N.  Y.  371  ;  Morrison  v.  Erie  R.  Co.,  56  N.  Y. 
302 ;  Solomon  v.  Manhattan  R.  Co.,  103  N. 
Y.  437 ;  Gavett  v.  Manchester  &  L.  R.  Co., 
16  Gray  (Mass.)  501 ;  Todd  v.  Old  Colony 
&  F.  R.  R.  Co.,  3  Allen  (Mass.)  18;  Indian- 
apolis &  St.  L.  R.  Co.  V.  Watson,  1 14  Ind.  20 ; 
Seefeld  v.  Chicago,  M.  &  St.  P.  R.  Co.,  70 
Wis.  2 16.— Followed  in  Germond  v.  Cen- 
tral Vt.  R.  Co.,  6sVt.  126. 

So  also  where  the  jury  have  agreed  upon 
and  returned  a  special  verdict  setting  forth 
the  principal  contested  facts,  it  is  the 
province  of  the  court  to  settle  the  question 
of  negligence  as  a  question  of  law.  Conner 
V.  Citizens'  St.  R.  Co.,  26  Am.  6-  Eng.  R. 


NEGLIGENCK,  04  57. 


80  J 


36  IK  Va. 
Milwaukee 
)UOiEl)  IN 
Nev.  106. — 
K.  Co.,  46 

e  evidence 
effected  by 
:(l  concern- 
je  care,  the 
i;  tli.it  the 
)r(lingly  ;  if 
R'li;  is  110 
Illy  reason- 
iikl  not  be 
n  of  ncfjli- 
11  tc.  Jo/lit- 
'{'.  I'ti.  570. 
wn,  57  l-'fd. 
Co,  V.  Voel- 
129  ///.  540, 

1  ///.  Af>p, 
V.  Pine  It  in, 

2  Ind.  592, 
77.  Dtivald 
Co.,  47  Am, 
;86.  24  Ptic. 
an  Cap-  Co., 

Tethcrow 
8  Mo.  74,  1 1 
utri  Pac.  li, 
102  Mo.  544, 
j  Tabler  v. 
).  79;  Barry 
8  Mo.  62.- 
<S-  C.  B.  R. 
;o3.  Worth- 
Am.  &^  Kng. 
Rep.  590.  1 5 
iler  V.  New 
Reviewing 

R.  Co..  112 
:o.,  56  N.  Y. 

Co.,  103  N. 
\  L.  R.  Co.. 
Old  Colony 

18;  Indian- 
,  114 Ind. 2o; 
'.  R.  Co.,  70 
lond  V.  Cen- 

agreed  upon 
setting  forth 
,  it  is  the 
the  question 
aw.  Conner 
.  &•  Eng.  R, 


Cas.  210,  105  /;/</.  62,  55  Am.  Rep.  177,  4  X. 
A.  Rep.  441. 

.And  so  where  the  f;icts  are  admitted  by 
the  pleadings,  the  quest  ion,  Is  the  plaintilT 
entitled  to  any  recovery  .>  is  submitted  to 
the  court.  Dun  v.  Seaboard  c^*  A'.  A',  Co.,  ■(> 
Am.  L~  A'/((,'.  R.  Cas.  363,  78  Va.  645,  49 
Am.  Rep.  388. 

Still,  unless  an  act  or  combination  of  acts 
are  denijunced  by  statute  as  ne},'ligcnce, 
courts  have  rarely  felt  authorized  to  with- 
draw from  the  jury  the  decision  of  the  en- 
tin:  facts  whetiici  they  constitute  ne:;li- 
gence.  Texas  &*  P.  R.  Co.  v.  Hill,  71  Te.\. 
45  r,  ^)S.  //'.  Rep.  351. 

54.  Evidence,  on  the  whole, 
clearly  CHtabliishliii;:  iie)(li)(ence.— The 
question  of  negligence  vel  non  is  a  qies- 
tioii  of  law  for  the  decision  of  the  court 
"only  when  the  case  is  so  free  from  doubt 
that  the  inference  of  negligence  to  be  drawn 
from  the  facts  is  clear  and  certain";  in  all 
other  cases  it  is  a  question  of  fact  for  the 
(letermmation  of  the  jury.  East  Tenn.,  V, 
&*  G.  R.  Co.  V.  Bayliss,  19  Am.  «S-  Ew^,  R. 
Cas.  480,  74  A/a.  1 50, 

Even  if  there  be  controversy  in  the  evi- 
dence as  to  some  facts,  yet,  if  those  that  are 
uncontroverted  clearly  and  indisputably  es- 
tablish negligence,  it  is  still  a  question  of 
law  for  the  court.  Abbett  v.  Chicago,  M.  &* 
St.  P.  R.  Co.,  30  Minn.  482.  16  A'.  W.  Rep. 
266.— Approved  and  quoted  in  Mares  z/. 
Northern  Pac.  R.  Co.,  17  Am.  «i  Eng.  R. 
Cas.  620,  3  Dak.  336.  Followed  in  Rog- 
stad  V.  St.  Paul,  M.  &  M.  R.  Co.,  14  Am.  & 
Kng.  R.  Cas.  648.  31  Minn.  208;  Bennett  v. 
Syndicate  Ins.  Co.,  39  Minn.  254,  39  N.  \V. 
Kep.  488;  Giermann  v.  St.  Paul.  M.  &  M. 
R.  Co.,  42  Minn.  $—Dun  v.  Seaboard &*  R. 
R.  Co.,  16  Am.  &>  Eng.  R.  Cas.  363.  78  Fa. 
645,  49  Am.  Rep.  3S8. 

~*ii.  Plain  till''8  evidence  eqnally 
consistent  witli  absence  an  witli  ex- 
istence ol'ne(;Iif;ence.— It  is  not  enough 
I'  I  sen''  a  case  to  a  jury  to  show  that  by  some 
possibility  the  injury  might  have  been 
caused  by  defendant's  negligence.  It  must 
be  shown  that  defendant  committed  some 
nei^tigent  act  or  omitted  some  duty,  and 
that  such  act  or  omission  caused  the  injury. 
Where  the  facts  are  as  consistent  with  due 
care  as  with  want  of  it,  no  recovery  can  be 
had.  McCaffrey  v.  Twenty  third  St.  R.  Co., 
47  Hun  404,  14  A'.  Y.  S.  R.  521.— APPLV- 
INO  Baulec  V.  New  York  &  H.  R.  Co..  59 
N.  Y.  356;  French  v.  Buflalo  &  E.  R.  Co., 
6  D.  R,  D.— 51 


2  Abb.  App.  Dec.  \cfi.—Baulec  v.  A'tW  Vor,'- 
&^  H.  R.  Co.,  59  X.  V.  356,  48  How.  Pt. 
y)).  7  .////.  a;  .  Rep.  114;  affirming  62  Bar  <. 
^'-J'  -yuoTiNt;  Toomey  v.  London,  B.  «i 
S.  C.  R.  Co.,  3  C.  B.  N,  S.  146. 

rr.  Where  verdict  lor  plaintift' 
wonid  l>e  ,set  aside  as  against  evi- 
«lt'nce.-  If  the  evidenct;  is  of  such  a  con- 
clusive character  that  the  court,  in  the  ex- 
ercise of  a  sound  judicial  discretion,  would 
be  bound  to  set  aside  a  verdict  returned  in 
t)pposition  to  it,  it  is  his  duty  to  direct  a 
verdict  for  the  proper  party.  .Xorthwestern 
Euel  Co.  V.  Daniilson,  57  Fed.  Rep.  915. 
Sehierhold  v.  Xoith  Reach  c<~»  M.  R.  Co.,  40 
C,r/.  447.  — Rkvikwi  11  IN  Soleii  v.  Virginia 
&  T.  R.  Co.,  13  N<  V.  \o(t.— Chicago &*  A.  R. 
Co.  V.  Adley,  39  Am.  dt*  Eng,  R.  Cas.  666, 129 
III.  335,  21  A'.  E.  Rep.  846  ;  affirmtng  28  ///, 
App.  102.  Filers.  A'ew  Yorl:  C.  R.  O.,  49 
A'.  V.  47.  S  Am.  Ry.  Rep.  466.  — APPLIED 
IN  Morrison  v.  Erie  R.  Co.,  56  N.  Y.  302. 
Approved  in  Worthington  v.  Central  Vt. 

R.    Co.,    64    Vt.     107.       DlSTINGUI.SHEI)     IN 

Pittsburgh,  C.  &  St.  L.  R.  Co.  v,  Krouse,  30 
Ohio  St.  222.  Quoted  in  St.  Louis,  I.  M. 
&  S.  R.  Co.  V.  Rosenberry,  45  Ark.  256. 

57.  Mere  surmise,  or  scintilla  of 
evidence. — Where  the  proof  of  negligence 
on  the  part  of  the  defendant  is  so  slight  and 
inconclusive  in  its  nature  as  to  demand 
from  the  court  an  instruction  as  to'  its  legal 
insufliciency  to  prove  negligence,  such  in- 
struction may  be  given  in  order  to  prevent 
the  jury  from  indulging  in  wild  speculation 
or  irrational  conjecture.  Baltimore  &*  O. 
R.  Co.  V.  Shipley,  31  Md.  368. 

In  such  a  case  it  is  not  only  the  right 
but  the  duty  of  the  court,  when  appealed  to 
for  that  purpose,  to  instruct  the  jury  that 
there  is  no  evidence  before  them  to  warrant 
their  finding  the  fact  so  sought  to  be  estab- 
lished. Lewis  V.  Baltimore  &^  O.  R.  Co.,  38 
Md.  588,  10  Am.  Ry.  Rep.  521. 

It  is  not  enough  to  authorize  the  submis- 
sion of  the  question  to  a  jury  that  there  is 
some  evidence  of  negligence.  A  scintilla  of 
evidence  or  a  mere  surmise  that  there  may 
have  been  negligence  on  the  part  of  defend- 
ant will  not  justify  the  court  in  leaving  the 
case  to  the  jury.  Poivers  v.  New  York  C. 
&*  H.  R.  R.  Co.,  60  Hun  19,  38  A^.  Y.  S. 
H.  558,  14  A^.  Y.  Supp.  408  ;  affirmed  in  128 
N.  Y.  659,  mem.,  29  N.  E.  Rep.  148,  mem., 
40  A^.  Y.  S.  R.  979.— Applying  Sutton  v. 
New  York  C.  &  H.  R.  R.  Co.,  66  N.  Y.  243. 
Quoting  Ban  lee  v.  New  York  &  H.  R.  Co., 


1 
I 


m 


8018 


NEGLIGENCE,  58-61. 


'■:  *!^ 


59  N.  Y.  356 ;  Toomey  v.  London,  B.  &  S. 
C.  R.  Co..  3  C.  B.  N.  S.  146;  Hyatt  v. 
Johnston,  91  Pa.  St.  200. — Baltimore  <S>»  O. 
R.  Co.  V.  State,  71  Md.  590,  xZAtl.Rep.  969. 
Galveston,  H.  &^  S.  A.  A'.  Co.  v.  Faber, 
77  Tex.  153,  8  S.  IF.  Rep.  64.— Quoting 
Toomey  v.  London,  B.  &  S.  C.  R.  Co.,  3  C. 
B.  N.  S.  146. 

58.  Pruxiiiiiitc  aud  remote  cause. 
— When  the  facts  are  not  in  dispute,  it 
is  for  the  court  to  determine  whether  or 
not  an  injury  was  the  natural  and  proxi- 
mate consequence  of  the  negligence  com- 
plained of,  a  consequence  likely  to  flow 
from  the  negligent  act.  Biintinif  v.  Hogsett, 
48  Am.  iS-  Eng.  R.  Cas.  87,  139  Pa.  St.  363, 
21  Atl.  Rep.  31.  Henry  v.  St.  Louis,  K.  C. 
&»  N.  R.  Co..  12  Am.  (3-  Eng.R.  Cas.  136,76 
Mo.  288,  43  Am.  Rep.  762. 

When  the  fact  is  undisputed  in  the  evi- 
dence that  the  injury  received  was  inflicted 
by  an  intervening  agency  over  which  the 
defendant  had  no  control,  the  question  of 
remote  or  proximate  cause  must  be  deter- 
mined by  the  court  and  the  jury  instructed 
accordingly.  South  Side  Pass.  R.  Co.  v. 
Trich,  34  Am.  &*  Ettg.  R.  Cas.  549,  117  Pa. 
St.  390,  10  Cent.  Rep.  367,  11  Atl.  Rep.  627, 
20  W.  N.  C.  324.— Distinguished  in  Boss 
V.  Northern  Pac.  R.  Co..  2  N.  Dak.  128. 

50.  When  the  court  may  direct  a 
verdict.*— If  from  the  evidence  no  reason- 
able inference  of  negligence  on  the  part  of 
the  defendant  causing  the  injury  can  be 
drawn,  or  there  is  but  one  reasonable  in- 
ference, to  the  effect  that  the  plaintiff's  neg- 
ligence contributed  to  the  injury,  then  it  is 
the  duty  of  the  court,  on  request,  to  direct 
the  jury  to  return  a  verdict  in  favor  of  the 
defendant.  Rush  v.  Coal  Bluff  M in.  Co., 
131  Ind,  135,  30  N.  E.  Rep.  904.  Goshorn 
v.  Smith,  92  Pa.  St.  435. 

It  is  reversible  error  to  submit  a  case  to 
tlie  jury  where  the  evidence  fails  to  estab- 
lisii  negligence  on  the  part  of  the  defendant 
company.  Schmidt  v.  Steinway  &*  H.  P.  R. 
Co.,  4  Siiv.  App.  (N.  Y.)  1 19. 

But  the  court  cannot  take  the  case  from 
the  jury  unless  it  is  prepared  to  say,  as  a 
matter  of  law,  that  the  company  was  not 
guilty  of  negligence.  Ridings  v.  Hannibal 
&^  St.  J.  R.  Co.,  33  Mo:  App.  527. 

00.  Various  applications  of  the 
rule. — Plaintiff  was  ridmg  on  defendant's 

*  Right  of  court  to  direct  a  verdict  in  actions 
tiased  upon  negligence,  see  note,  4  L.  R.  A.  778. 


Street-car  when  a  brake  chain  broke,  and  the 
car  ran  down  a  grade  and  collided  with  an- 
other car,  which  caused  the  injury  sued  for. 
Held,  that  it  was  error  to  submit  the  ques- 
tion of  the  driver's  negligence  to  the  jury 
where  there  was  no  evidence  tending,  even 
remotely,  to  show  a  want  of  care  or  skill  in 
the  management  of  the  car,  but  where,  on 
the  contrary,  the  evidence  was- overwhelm- 
ing and  uncontradicted  that  the  driver  did 
everything  that  one  could  do  to  prevent  the 
accident  from  the  time  the  chain  broke. 
Wynn  v.  Central  Park,  N.  &*  E.  R.  R.  Co., 
133  N.  V.  575,  mem.,  4  Silv.  App.  214,  44  N. 
Y.  S.  R.  673,  30  N.  E.  Rep.  721;  reversing 
14  N.  Y.  Supp.  172,  38  N.  Y.  S.  R.  181. 

Plaintiff  was  trying  to  start  a  balky  horse 
attached  to  a  street  passenger-car.  There 
were  two  tracks  on  the  street.  Defendant 
was  driving  on  the  clear  track,  and  when 
passing  the  balky  horse,  the  latter  suddenly 
started,  and  the  plaintiff,  in  stepping  back 
to  avoid  injury,  was  struck  by  defendant's 
wagon  and  injured.  The  only  question  in 
dispute  was  the  speed  of  the  wagon.  Held, 
that  there  was  no  evidence  of  negligence  by 
defendant,  and  the  case  should  not  have 
been  submitted  to  the  jury ;  the  speed  of 
the  wagon  was  not  a  factor  in  the  case,  as 
the  action  of  plaintiff  would  have  resulted 
in  injury  had  the  wagon  been  going  with 
less  speed.     Goshorn  v.  Smith,  92  Pa.  St.  435. 

The  rule  as  to  when  signal  posts,  fences, 
and  other  structures  placed  in  dangerous 
proximity  to  the  track  constitute  negligence 
as  a  matter  of  law  and  fact  stated.  Murphy 
v.  Wabash  R.  Co.,  115  Mo.  1 11,  21  5.  W. 
Rep.  862.— Reviewing  McKeez/.  Chicago, 
R.  L  &  P.  R.  Co.,  83  Iowa  616,  50  N.  W. 
Rep.  209 ;  Johnson  v.  St.  Paul,  M.  &  M.  R. 
Co.,  41  Am.  &  Eng.  R.  Cas.  293,  43  Minn. 
53;  Hall  V.  Union  Pac.  R.Co.,  16  Fed.  Rep. 
744 ;  Chicago  &  L  R.  Co.  v.  Russell,  91  111. 
300 ;  Georgia  Pac.  R.  Co.  v.  Davis,  92  Ala. 
300,  9  So.  Rep.  252.  Reviewing  and  dis- 
tinguishing Wabash,  St.  L.  &  P.  R.  Co.  v. 
Locke,  112  Ind.  404. 

2.  Questions  of  Fact  for  the  Jury. 

61.  Tiie  general  rule.*— If  there  is 
any  f   idence  from  which  negligence  or  con- 

*  When  question  of  negligence  should  be  left 
to  jury,  see  note,  13  L.  R.  A.  738.  See  also  53 
Am.  &  Eng.  R.  Cas.  106,  absir. 

When  negligence  and  contributory  negligence 
are  for  the  jury,  see  37  Am.  &  Eno.  R.  Cas.  93, 
abstr. 


NEGLIGENCE,  61. 


803 


e,  and  the 
1  with  an- 

sued  for. 
the  ques- 

the  jury 
iing,  even 
>r  skill  in 
where,  on 
rerwhelm- 
driver  did 
revent  the 
lin  broke. 
A".  A'.  Co., 
214,  44  -^• 

reversing 
?.  i8i. 
alky  horse 
ir.  There 
Defendant 
and  when 
r  suddenly 
)ping  back 
iefendant's 
[uestion  in 
on.  Held, 
fligence  by 

not  have 
e  speed  of 
he  case,  as 
re  resulted 
going  with 
Pa.  St.  435- 
ists,  fences, 

dangerous 
;  negligence 
d.  Murphy 
:.  21  S.  W. 
V,  Chicago, 
,  50  N.  W. 
M.  &  M.  R. 
3.  43  Minn. 
6  Fed.  Rep. 
issell,  91  Ill- 
avis,  92  Ala. 

IG   AND  DIS- 

P.  R.  Co.  V. 


he  Jury. 

-If  there  is 
;ence  or  con- 
should  be  left 
See  also  53 

jry  neRligence 
G.  R.  Cas.  93, 


tributory  negligence  is  legally  inferable,  the 
c^use  must  be  submitted  to  the  jury  for  the 
determination  of  those  questions.  Clay  v. 
Chicago  &*  A.  Ji.  Co.,  24  Mo.  App.  39.  Rich- 
tnondv.  Sacramento  Valley  R,  Co.,  18  Cal.  351. 
McNamara  v.  North.  Pac.  R.  Co.,  50  Cal. 
581,  12  Am.  Ry.  Rep.  190.  Marsh  v.  South 
Carolina  R.  Co.,  56  Ga.  274.     Georgia  R.  &^ 

B.  Co.  v.  Neely,  56  Ga.  540.— Followed  in 
Lavier  v.  Central  R.  Co.,  71  Ga.  222. — Kil- 
lian  v.  Augusta  &*  K.  R.  Co.,  79  Ga.  234,  4 
S.  E.  Rep.  165.  Myers  v,  Indianapolis  &* 
St.  L.  R.  Co.,\\i  III.  386,  I  A^.  E.  Rep.  899. 
Peoria,  D.  &*  E.  R.  Co.  v.  Reed,  17  ///.  App. 
413.  Chicago  &*  N.  IV.  R.  Co.  v.  Trayes,ii 
III.  App.  307.— Quoting  Galena  &  C.  U.  R. 
Co.  V.  Yarwood,  17  111.  509;  Lake  Shore  & 
M.  S.  R.Co.  V.  Brown,  123  III.  162.— Chicago 
City  R.  Co.  V.  Van  Vleck,  40  ///.  App.  367. 
Cincinnati,  W.  &•  M.  R.  Co.  v.  Peters,  6  Am. 
&'Eng.  R.  Cas.  126,80  Ind.  168.   Pittsburgh, 

C.  &»  St.  L.  R.  Co.  V.  Wright,  6  Am.  &^ 
Eng.  R.  Cas.  1 14,  80  Ind.  236.  Marquette 
V.  Chicago  &•  N.  JV.  R.  Co.,  33  Iowa  562. 
Ray  burn  v.  Central  Iowa  R.  Co.,  74  Iowa  637, 
35  N.  IV.  Rep.  606,  38  N.  IV.  Rep.  520. 
Cumberland  S^  P.  R.  Co.  v.  State,  44  Md. 
283,  45  Md.  229.  State  v.  Philadelphia.  IV. 
<S-  B.  R.  Co.,  47  Md.  76.  18  Am.  Ry.  Rep. 
253.  Baltimore  &*  P.  R.  Co.  v.  State,  54 
Md.  648.  Detroit  &*  M.  R.  Co.  v.  Van 
Steinburg,  17  Mich.  99. — QUOTED  IN  Atchi- 
son &  N.  R.  Co.  V.  Bailey,  10  Am.  &  Eng. 
R.  Cas.  742,  1 1  Neb.  332 ,  Boss  v.  Provi- 
dence &  W.  R.  Co.,  21  Am.  &  Erg.  R.  Cas. 
364,  15  R.  I.  149.  Reviewed  in  Williams 
V.  Northern  Pac.  R.  Co.,  11  Am.  h  Eng.  R. 
Cas.  421,  3  Dak.  168. — Hassenyerv.  Michi- 
gan C.  R.  Co.,  6  Am.  &»  Eng.  R.  Cas.  59,  48 
Mich.  205,  12  A^.  W.  Rep.  155,  42  Am.  Rep. 
470.  Thomas  v.  Chicago  6-  G.  T.  R.  Co.,  86 
Mich.  496,  49  A''.  W.  Rep.  547.  Kennedy  v. 
North  Mo.  R.  Co..  36  Mo.  351.  McPheeters 
V.  Hannibal  &*  St.  J.  R.  Co.,  45  Mo.  22. 
Union  Pac.  R.  Co.  v.  Mertes,  35  Neb.  204, 
52  A^.  W.  Rep.  1099.  Union  Pac.  R.  Co. 
V.  Porter,  58  Am.  Sf  Eng.  R.  Cas.  289,  38 
Neb.  226,  56  N.  W.  Rep.  808.  Paine  v. 
Grand  Trunk  R.  Co.. 63  A^  H.  623,  3  Atl.  Rep. 
634.  Pendrilv.  Second  Ave.  R.  Co.,  43  How. 
Pr.  (N.  V.)  399.  Matteson  v.  New  York 
C.  R.  Co.,  62  Barb.  (N.  V.)  364.  Armstrong  v. 
New  York  C.  &*  H.  R.  R.  Co.,  66  Barb.  {N. 
Y.)  437;  affirmed  in  64  A'^.  Y.  635,  mem. 
Crissey  v.  Hestonville,  M.  &*  F.  Pass.  R. 
Co.,  75  Pa.  St.  83.  Mutvey  v.  Rhode  Island 
Locomotive  Works,  14  R.  I.  204.    Rogers  v. 


Florence  R.  Co.,  39  Am.  &»  Eng.  R.  Cas.  348, 
31  So.  Car.  378,  9  S.  E.  Rep.  1059.  Riley  v. 
IVest  Virginia  C.  &-  P.  R.  Co.,  27  IV.  Va. 
145.— Quoting  Washington  v.  Baltimore  & 
O.  R.  Co.,  17  W.  Va.  igo.—Bessex  v.  Chicago 
(S-  N.  W.  R.  Co.  45  Wis.  477,  18  Am.  Ry. 
Rep.  58.— Quoting  Ewen  v.  Chicago  &  N. 
W.  R.  Co.,  38  Wis.  6ii.—  TownUy  v.  Chica- 
go, M.  <&*  St.  P.  R.  Co.,  4  Am.  6-  Eng.  R. 
Cas.  562,  53  Wis.  626,  II  N.W.  Rep.  55.  Nel- 
son v.  Chicago,  M.  &*  St.  P.  R.  Co.,  22  Am. 
&*  Eng.  R.  Cas.  391,  60  Wis.  320,  19  A'^,  W. 
Rep.  52. 

Whether  there  was  negligence  or  want  of 
care,  in  whatever  degree,  in  either  of  the 
parties  is  a  question  of  fact,  to  be  deter- 
mined by  the  jury ;  and  whether  the  cir- 
cumstances attending  the  transaction  con- 
stitute such  negligence  or  want  of  care  will 
not,  though  admitted,  be  decided  by  the 
court,  as  matter  of  law,  but  will  be  left  to 
the  jury,  as  evidence  for  them  to  pass  upon. 
Beers  v.  Housatonic  R.  Co.,  19  Conn.  566. — 
Quoted  in  Richmond  v.  Sacramento  Val- 
ley R.  Co.,  i8  Cal.  351.  Reviewed  in  Al- 
ger v.  Mississippi  &  M.  R.  Co.,  10  Iowa  268 ; 
Zemp  V.  Wilmington  &  M.  R.  Co.,  9  Rich. 
(So.  Car.)  84. 

Questions  as  to  negligence  and  reasona- 
ble skill  and  care,  in  every  description  of 
business,  are  necessarily  questions  of  fact, 
and  belong  to  the  jury ;  th^  court  can  do 
nothing  more  than  give  the  rule  by  which 
they  are  to  be  tried.  Saltonstall  v.  Stock- 
ton, Taney  (U.  S.)  11.  Baltimore  &•  O.  R. 
Co.  V.  Shipley,  31  Md.  368. 

Negligence  in  one  sense  is  a  quality  de- 
pendent upon,  and  arising  out  of,  the  duties 
and  relations  of  the  parties  concerned,  and 
is  as  much  a  fact  to  be  found  by  the  jury  as 
the  alleged  acts  to  which  it  attaches  by  vir- 
tue of  said  duties  and  relations.  Texas  &* 
P.  R.  Co.  V.  Murphy,  46  Tex.  356,  13  Am. 
Ry.  Rep.  319.— Quoted  in  Townley  v.  Chi- 
cago, M.  &  St.  P.  R.  Co.,  4  Am.  &  Eng.  R. 
Cas.  562,  S3  Wis.  6a6. — Rowland y/.  Murphy, 
66  Tex.  534,  I  S.  W.  Rep.  658.— Quoting 
Texas  &  P.  R.  Co.  v.  Murphy,  46  Tex.  366. 

In  an  action  based  upon  alleged  neg- 
ligence of  the  defendant,  it  is  not  allowable 
to  prove  by  a  witness  that  the  act  com- 
plained of  was  not  negligent  nor  objectiona- 
ble. It  is  for  the  jury  to  say,  from  all  the 
facts  and  circumstances,  whether  an  act 
constitutes  negligence.  Petmsyhania  Co.  v. 
Stotike,  8  Atn.  &»  Eng.  R.  Cas.  523,  104  lU. 
201. 


I 


804 


NEGLIGENCE,  62,  63. 


U,  ■' 


Whethera  street-car  company  is  negligent 
in  allowing  its  car  to  lurch  from  the  track 
rrA  Strike  a  bridge  so  as  to  throw  down  and 
injure  a  passenger  is  a  question  of  fact  for 
the  jury.  Griffith  v.  Utica  6-  M.  R.  Co., 
43  ^V.  Y.  S.  R.  835,  63  Hun  626,  \T  N.  Y. 
Supp.  692;  affirmed  in  137  N.  Y.  566,  mem., 
33  N.  E.  Rep.  339,  mem.,  50  A^.  Y.  S.  R.  933. 
—Quoting  Maverick  v.  Eighth  Ave.  R. 
Co.,  36  N.  Y.  381 ;  Lehr  v.  Steinway  &  H. 
P.  R.  Co..  118  N.  Y.  556.  30  N.  Y.  S.  R.  i. 

PlaintifT,  a  boy  of  thirteen,  caught  on  to 
the  forward  end  of  the  caboose  of  a  moving 
freight  train,  from  which  he  fell,  causing 
one  knee  to  be  crushed  under  a  wheel. 
Plaintiff's  evidence  tended  to  prove  that 
his  fall  was  caused  by  an  employe  throwing 
water  in  his  face.  Heid,  that  it  was  a  ques- 
tion for  the  jury  whether  the  act  of  the  em- 
ploy6  caused  the  injury.  Clark  v.  -New 
York,  L.  E.  &*  IV.  R.  Co.,  2  N.  Y.  S.  R. 
249;  affirmed  in  113  N.  Y.  670,  mem.,  21  N. 
E.  Rep.  1 1 16,  mem.,  23  N.  Y.  S.  R.  994. 

62.  Sufficiency  of  evidence  to  es- 
tablish negligence. —  Where  the  facts 
and  circumstances  in  evidence  tend  to 
establish  the  negligence  complained  of, 
the  testimony  should  be  submitted  to 
the  jury,  who  are  the  sole  judges  of  its 
sufficiency.  Sheldon  v.  Flint  &•  P.  M. 
R.  Co.,  59  Mich.  172,  26  N.  IV.  Rep.  507. 
Louimille,  C.  &•  L.  R.  Co.  v.  Mahony, 
7  Bush  (Ky.)  T'lS.— Quoted  in  Needham  v. 
Louisville  &  1..  R.  Co..  85  Ky.  423.  3  S.  W. 
Rep.  797  ;  Paducah  &  E.  R.  Co.  v.  Letcher, 
(Ky.)  12  Am.  &  Eng.  R.  Cas.  di.— Burger  v. 
Missouri  Pac.  R.  Co.,  1 1 2  Mo.  238.  20  .S".  IV. 
Rep.  439.  O'Malley  v.  Missouri  Pac.  R.  Co., 
S3  Am.  &»  Eng.  R.  Cas.  280,  113  Mo.  319.  20 
5.  W.  Rep.  1079.  Malay  v.  New  York  C.  R. 
Co.,  58  Barb.  {N.  Y.)  182.— Quoted  in 
Solen  V.  Virginia  &  T.  R.  Co.,  13  Nev.  106. 

Negligence  in  injuries  inflicted  by  rail- 
road trains  upon  individuals  is  a  question 
that  depends  upon  the  circumstances,  and 
can  rarely,  if  ever,  be  absolutely  defined  as 
matter  of  law  ;  and  in  determining  whether 
there  has  been  negligence  all  the  circum- 
stances must  be  considered  together.  Mar- 
cott  V.  Marquette,  H.  d-  O.  R.  Co.,  4  Am.  <&«• 
Eng.  R.  Cas.  548.  47  Mich,  i,  10  A^.  W.  Rep. 
53.— Explaining  Marquette,  H.  &  O.  R. 
Co.  V.  Marcott,  41  Mich.  433.— Followed 
IN  Keyser  v.  Chicago  &  G.  T.  R.  Co.,  56 
Mich.  559. 

The  questions  of  negligence  and  con- 
tributory negligence  are  for  the  jury,  where 


there  is  any  evidence  tending  to  show 
either.  Fitts  v.  Cream  City  R.  Co.,  15  Am. 
&'  Eng.  R.  Cas.  462,  59  IVis.  323,  18  A^.  IV. 
Rep.  186.  Allender  v.  Chicago,  R.  !.  <&-  P. 
R.  Co.,yj  Iowa  264,  8  Am.  Ry.  Rep.  115. 
Gerke  v.  California  Steam  Nav.  Co.,  9  Cal. 
25 1. —Quoting  Huyett  v.  Philadelphia  & 
R.  R.  Co..  23  Pa.  St.  373. 

Though  the  evidence  of  negligence  in  a 
given  case  be  slight,  and  though  it  may 
affect  the  court  differently  from  the  way  in 
which  it  affected  the  jury,  still  the  court 
will  not  be  at  liberty  to  say  that  there  was 
not  sufficient  evidence  to  go  to  the  jury. 
Moore  v.  Metropolitan  R.  Co.,  2  Mackey 
{D.  C.)  437. 

Where  it  is  conceded  that  a  party  charged 
with  negligence  has  failed  to  perform  a 
legal  duty,  or  if  it  be  conceded  that  the 
plaintiff  did  not  exercise  that  degree  of  care 
and  caution  which  ordinarily  cautious  and 
prudent  men  would  observe  under  like  cir- 
cumstances, the  court  will  be  required  to 
state,  as  a  matter  of  law.  that  the  party  fail- 
ing to  perform  his  legal  duty,  or  failing  to 
observe  such  degree  of  care,  has  been  guilty 
of  negligence.  But  so  long  as  the  question 
remains  whether  the  party  has  performed 
the  legal  duty,  or  has  observed  that  degree 
of  care  and  caution  imposed  upon  him  by 
law.  and  the  determination  of  the  question 
involves  the  weighing  and  consideration  of 
evidence,  the  question  must  be  submitted 
as  one  of  fact.  Chicago,  St.  L.  &*  P.  R.  Co. 
V.  Hutchinson,  32  Am.  &*  Eng.  R.  Cas.  82, 
120  ///.  587.  II  N.E.  Rep.  855. 

63.  Right  of  court  to  charge  what 
facts,  if  found,  will  amount  to  negli- 
gence.— It  is  error  to  charge  the  jury  that 
certain  facts.if  proved,  constitute  negligence. 
Montgomery  &•  IV.  P.  R.  Co.  v.  Boring,  5 1 
Ga.  582.  Pennsylvania  Co.  v.  Frana,  112 
///.  398.  Pennsylvania  Co.  v.  Hensil,  6  Am. 
&•  Eng.  R.  Cas.  79, 70  /«./.  569,  36  Am.  Rep. 
188.— Followed  in  Pennsylvania  Co.  v. 
Horton.  132  Ind.  189. — Huelsenkampv.  Citi- 
zens' R.  Co.,  34  Mo.  45.— Disapproved  in 
Barton  v.  St.  Louis  &  1.  M.  R.  Co.,  52  Mo. 
253  —  IVhite  v.  Augusta  &•  K.  R.  Co.,  30  So. 
Car.  218,  gS.  E.  Rep.  96.  Calhoun  v.  Gulf. 
C.  &*  S.  F.  R.  Co.,  84  Tex.  226.  19  S.  IV. 
Rep.  341.  Gulf,  C.  &-  S.  F.  R.  Co.  v.  Bag- 
ley,  3  Tex.  Civ.  App.  207.  22  S.  W.  Rep.  68. 
—Following  Garteiser  v.  Galveston,  H.  & 
S.  A.  R.  Co.,  a  Tex.  Civ.  App.  230. 

The  only  exception  to  this  rule  is  where 
the  law  makes  a  thing  negligence  in  express 


'■■,<:if^' 


NEGLIGENCE,  63. 


805 


to  show 
.,  15  A/n. 
18  N.  W. 
!.  &*  P. 
Kep.  115. 
:<?..  9  Cal. 
elphia  & 

ence  in  a 
h  it  may 
he  way  in 
the  court 
there  was 
the  jury. 
Mackey 

y charged 
jerform  a 
that  the 
ee  of  care 
itious  and 
:r  like  cir- 
:quired  to 
party  fail- 
failing  to 
)een  guilty 
question 
performed 
hat  degree 
on  him  by 
e  question 
deration  of 
submitted 
-  P.  R.  Co. 
R,  Cos.  82, 

irge  irtaat 
;  to  negli> 
le  jury  that 
negligence. 
Boring,  51 
Frana,  112 
ensil,  6  Am. 
16  Am.  Rep. 
inia  Co.  V. 
amp  V.  Citi- 
>PROVED   IN 

Co.,  52  Mo. 
?.  Co.,  30  So. 
oun  V.  Gulf, 
6.  19  5.  W. 
Co.  V.  Bag- 
W.  Rep.  68. 
reston,  H.  & 
230. 

ule  is  where 
ce  in  expreM 


terms,  in  which  case  the  court  may  instruct 
the  jury  that  its  omission  is  negligence. 
Central  R.  Co.  v.  Thompson,  76  Ga.  770. 
Texas  <&*  P.  R.  Co.  v.  Murphy,  46  Tex.  336, 
\lAm.  Ry.  Rep.  319.— FOLLOWED  IN  Hous- 
ti)ii  &  G.  N.  R.  Co.  V.  Parker,  50  Tex.  330. 
Quoted  in  Rowland  v.  Murphy.  66  Tex. 
534;  Houston  &  G.  N.  R.  Co.  t/.  Miller,  51 
Tex.  270 ;  Dillingham  v.  Parker,  80  Tex. 
^•J2.  —  Houston  &*  G.  N.  R.  Co.  \.  Parker, 
50  Tex.  330.— Following  Texas  &  P.  R. 
Co.  V.  Murphy,  46  Tex.  ■^16—  Houston  i5«»  G. 
A'.  R.  Co.  V.  Miller,  51  Tex.  270.— Quoting 
Texas  &  P.  R.  Co.  v.  Murphy.  46  Tex.  356. 
—  Galveston,  H.  &•  S.  A.  R.  Co.  v.  Porfert,  37 
Am.  &*  Eng.  R.  Cas.  540,  72  Tex.  344,  10  S. 
IV.  Rep.  207.  Dillingham  v.  Parker,  So 
Tex.  572.  16  S.  IV.  Rep.  335.— Following 
Gulf.  C.  &  S.  F.  R.  Co.  V.  Greenlee,  70  Tex. 
553.  Quoting  Texas  &  P.  R.  Co.  v.  Mur- 
phy, 46  Tex.  2$6.— Garteiser  v.  Galveston, 
H.  &*  S.  A.  R.  Co.,  2  Tex.  Civ.  App.  230,  21 
S.  W.  AV/.- 631.— Followed  in  Gulf,  C.  & 
S.  F.  R.  Co.z/.  Bagley,  3  Tex.  Civ.  App.  207. 

An  instruction  is  properly  refused  which 
tells  the  jury,  as  a  matter  of  law,  that  certain 
facts/^r  J*  constitute  negligence.  By  this  it 
is  not  meant  that  the  definition  of  negligence 
is  one  of  fact,  to  be  determined  by  the  jury. 
Pennsylvania  Co.  v.  Conlan,  6  Am.  Sr*  Eng. 
R.  Cas.  243,  101  ///.  93.  Chicago  &*  N.  W. 
R.  Co.  V.  Bouck,  33  ///.  App.  123.  Aigen  v. 
Boston  &•  M.  R.  Co.,  6  Am.  &*  Eng.  J\'.  Cas. 
426,  132  Mass.  423.  International  &^  G.  A'. 
R.  Co.  V.  Eckford,  71  Tex.  274,  8  S.  W. 
Rep.  679. 

It  is  only  when  the  conclusion  of  negli- 
gence necessarily  results  from  the  statement 
of  fact  that  the  court  may  be  called  upon 
to  say  to  the  jury  that  a  fact  establishes 
negligence  as  a  matter  of  law.  Chicago  City 
R.  Co.  V.  Robinson,  36  Am.  St*  Eng.  R.  Cas. 
66,  127  ///.  9,  4  L.  R.  A.  126,  18  A^.  E.  Rep. 
772;  affirming  27  ///.  App.  26.  Chicago  »S~» 
E.  I.  R.  Co.  V.  O'Connor,  119  ///.  586,  9  A'. 
E.  Rep.  263;  affirming  19  ///.  ////.  591. — 
DiSTiNdUiSHiNO  Lake  Shore  &  M.  S.  R. 
Co.  V.  Hart,  87  111.  534.— Quoted  in  Terre 
Haute  &  I.  R.  Co.  v.  Voelker,  39  Am.  «St 
Eng.  I^.  Cas.  615,  129  111.  540,  22  N.  E.  Rep. 
10.— Chicago  &•  I.  R.  Co.  v.  Lune,  130  ///. 
116,  22  N.  E.  Rep.  513;  affirming  10  III. 
^PP'  437-  Chicago  &•  A.  R.  Co.  v.  Fisher, 
141  Ill.6\j^,ii  N.  E.  Rep.  406 ;  affirming  38 
///.  App.  33. 

The  existence  of  negligence  should  be 
proviil  and  passed  upon  by  the  jury  as  any 


other  fact.  It  is  improper  to  state  to  the 
jury  a  circumstance  or  group  of  circum- 
stances as  to  which  there  has  been  evidence 
on  the  trial,  and  instruct  that  such  fact  or 
group  of  facts  amounts  to  negligence />^rj^. 
At  most  the  jury  should  be  duly  instructed 
that  such  circumstances,  if  established  by 
a  preponderance  of  the  evidence,  are  prop- 
erly to  be  considered  in  determining  the 
existence  of  negligence.  Missouri  Pac,  R. 
Co.  V.  Baier,  37  Neb.  235,  55  A''.  W.  Rep.  913. 

What  is  negligence  and  what  is  reasona- 
ble diligence  are,  when  the  facts  are  ascer- 
tained, questions  of  law,  to  be  declared  by 
the  court.  When  the  facts  are  involved  in 
conflicting  evidence,  the  court  should  sub- 
mit the  testimony  to  the  jury,  with  instruc- 
tions that  if  they  found  a  state  of  facts  to 
be  true,  it  was  in  law  negligence  or  vice 
versa.  Emry  v.  Raleigh  Sr*  G.  R.  Co.,  109 
N.  Car.  589,  14  S.  E.  Rep.  352.— Distin- 
guishing Farmer  v.  Wilmington  &  W.  R. 
Co.,  88  N.  Car.  564;  Gunter  v.  Wicker,  85 
N.  Car.  310;  Turrentine  z/.  Richmond  &  D. 
R.  Co.,  92  N.  Car.  638 ,  Owens  v,  Richmond 
&  D.  R.  Co.,  88  N.  Car.  502;  Aycock  v. 
Raleigh  &  A.  A.  L.  R.  Co.,  89  N.  Car.  321 ; 
Troy  V.  Cape  Fear  &  Y.  V.  R.  Co.,  99  N. 
Car.  298  ;  McAdoo  v.  Richmond  &  D.  R. 
Co.,  105  N.  Car.  140;  Deans?/.  Wilmington 
&  W.  R.  Co.,  107  N.  Car.  689.  Quoting 
Biles  z/.  Holmes,  11  Ired.  16;  Heaihcock  ?'. 
Pennington,  11  Ired.  640;  Woodward  v. 
Hancock,  7  Jones  384;  Smith  v.  North 
Carolina  R.  Co.,  64  N.  Car.  235.  —  Tarwater 
v.  Hannibal  (S>»  St.  J.  R.  Co.,  42  Mo.  193. 
Yarnall  v.  St.  Louis,  K.  C.  &*  N.  R.  Co.,  10 
Am.  (S-  Eng.  R.  Cas.  726,  75  Mo.  575. — 
Reviewed  in  Scaling  v.  Pullman  Palace 
Car  Co.,  24  Mo,  App.  29. — Goodwin  v.  Chi- 
cago, R.  I.  &^  P.  R.  Co.,  II  Am.  &*  Eng.  R. 
Cas.  460,  75  Mo.  73.— Reviewed  !N  Scaling 
V.  Pullman  Palace  Car  Co.,  24  Mo.  App.  29. 
— Ravenscra/t  v.  Missouri  Pac.  R.  Co.,  27 
Mo.  App.  617.  Knight  v.  Albemarle  &-  R.  R. 
Co..  1 10  N.  Car.  58,  14  S.  E.  Rep.  650.  Weil 
V.  Express  Co.,  7  Phila.  {Pa.)  245.— Quot- 
ing Ryder  v.  Wombwell,  L.  R.  4  Ex.  32; 
Tooiney  v.  London,  B.  &  S.  C.  R.  Co.,  3  C. 
B.  N.  S.  150;  Wheeltoii  v.  Hardisty,  8  El. 
&  Bl.  262. 

It  is  improper  for  a  court,  by  an  instruc- 
tion, to  inform  the  jury  that  it  is  not  a  want 
of  ordinary  care  for  a  train  of  cars  to  ap- 
proach a  highway  crossing  at  its  usual  speed, 
although  there  is  a  team  approaching,  neg- 
ligence being  a  question  for  the  jury.     So 


■■in-' 


806 


NEGLIGENCE,  64. 


If! 


an  instruction  that  the  engineer  had  a  right 
to  presume  that  a  team  approaching  the 
crossing  would  stop  'i:  prope.Iy  refused.  Il- 
linois C.  li.  Co,  V.  Slater,  139  ///.  190,  28  N. 
E.  Rep.  830 ;  affirming  39  ///.  App.  69. 

It  is  a  well-settled  rule  of  law  that  the  ab- 
sence of  any  particular  precaution  in  the 
management  of  trains,  not  required  by  law, 
is  not  necessarily  negligence  of  itself,  and 
it  is  error  to  charge  the  jury  to  the  contrary. 
Wright  V.  Third  Ave.  R.  Co.,  27  N.  V.  S. 
R.  523.  5  N.  Y.  Supp.  707. 

In  a  case  where  a  question  of  negligence 
as  to  the  conduct  of  an  employe  of  a  rail- 
road company,  and  as  to  the  conduct  of  an 
engineer  having  the  supervision  of  said  em- 
ploye, is  in  dispute,  it  would  not  be  proper 
for  a  court,  taking  certain  of  the  facts  apart 
from  the  others  and  the  surrounding  cir- 
cumstances, such  facts  not  having  in  law 
any  conclusive  and  definite  effect,  to  say  to 
a  jury  that  they  did  constitute  negligence. 
Jenkins  v.  Little  Miami  R.  Co.,  2  Disney 
(Ohio)  49. 

When,  by  statute,  a  specific  duty  is  im- 
posed on  a  railway  company  in  regard  to 
the  running  and  management  of  its  train, 
a  bread  of  such  duty  by  which  one  re- 
ceives personal  injury  may  be  declared,  in 
a  charge  of  the  court,  as  matter  of  law,  to 
be  wrongful  or  negligent.  Texas  &^  P.  R. 
Co.  V.  Murphy,  46  Tex.  356,  i^Am.  Ry.  Rep. 
319— Quoted  in  Kansas  &  G.  S.  L.  R.  Co. 
V.  Dorough,  72  Tex.  loS,  10  S.  W.  Rep.  711. 

A  court  may  properly  declare  the  use  of 
cars  negligence  when  the  facts  stated  in 
plaintiff's  petition  in  reference  to  their  de- 
fects, tlieir  use,  and  the  wreck  caused 
thereby  are  admitted  by  defendant.  East 
Line  &*  R.  R.  R.  Co.  v.  Smith,  65  7 ex.  167. 

When  the  court  instructs  a  jury  tliat  the 
omission  to  do  an  act  which  may  constitute 
negligence  is  or  is  not  suflicient  to  estab- 
lish it,  it  necessarily  passes  upon  tlie  weight 
to  be  given  to  the  fact  tiiat  the  omission 
occurred  when  it  might  have  been  avoided. 
Such  a  charge  is  violative  of  tlie  statute. 
Costley  V.  Galveston  City  R.  Co. ,  70  Tex.  1 1 2, 
8  5.   W.  Rep.  114; 

The  neglect  by  a  railway  company  of  a 
statutory  duty  whereby  injury  results  to  an- 
other is  negligence  as  matter  of  law,  and  it 
is  proper  that  a  court  should  so  charge ;  but 
it  is  improper  to  charge  upon  the  effect  of 
isolated  facts  in  evidence  as  constituting 
negligence  or  not.  Concerning  tliese  the 
jury  determine  from  a  considcnition  of  all 


the  surrounding  circumstances  in  evidence 
before  them.  International  &*  G.  N.  R.  Co. 
v.  Kuehn,  35  Am,  <S>»  Eng.  R,  Cas.  421,  70 
Tex.  582,  8  S.  W.  Rep.  484. 

64.  Where  the  evidence  of  negli- 
gence is  of  a  iloiibtfiil  character.— 
Where  the  evidence  on  a  question  of  negli- 
gence is  doubtful  and  presents  qualifymg 
circumstances,  and  the  inferences  to  be 
drawn  from  the  facts  are  uncertain,  it  is  the 
province  of  the  jury  to  decide.  Kansas 
Pac.  R.  Co.  V.  Richardson,  6  Am.  &•  Eng.  R. 
Cas,  96,  25  Kan.  391.  Hathaway  v.  East 
Tenn.,  V.  &>  G.  R,  Co.,  29  Fed.  Rep,  489. 
Barton  v.  St.  Louis  &-  I.  M.  R.  Co.,  52  Mo. 
253.— Disapproving  Huelsenkampz/.  Citi- 
zens' R.  Co.,  34  Mo.  54.  Distinguishing 
Devitt  V,  Pacific  R.  Co.,  50  Mo.  302.  Quot- 
ing Keller  v.  New  York  C.  R.  Co.,  24  How. 
Pr.  (N.  y.)  172.  Reviewing  Pittsburgh  & 
C.  R.  Co.  V.  McClurg,  56  Pa.  St.  300. — 
Quoted  in  Behrens  v.  Kansas  Pac.  R.  Co., 
8  Am.  &  Eng.  R.  Cas.  184,  5  Colo.  400. — 
Keller  v.  New  York  C.  R.  Co.,  2  Abb.  App. 
Dec.  {N.  Y.)  480,  24  How.  Pr.  172;  affirm- 
ing 17  How.  Pr.  102.  Thurber  v.  Harlem 
Bridge,  M.  6-  F.  R.  Co.,  60  N.  Y.  326,  10 
Am.Ry,  Rep,  126.— Following  Bcmhard 
V.  Rensselaer  &  S.  R.  Co.,  i  Abb.  App.  Dec. 
131 ;  Helton  v.  Baxter,  58  N.  Y.  411  ;  Hack- 
ford  V.  New  York  C.  &  H.  R.  R.  Co.,  53  N. 
Y.  654. — Distinguished  in  Scott  v.  Third 
Ave.  R.  Co.,  36  N.  Y.  S.  R.  838,  59  Hun 
456,  13  N.  Y.  Supp  344.  Quoted  in 
Atwater  v.  Veteran,  26  N.  Y.  S.  R.  945 ; 
Mallard  v.  Ninth  Ave.  R.  Co.,  15  Daly  376, 
7  N.  Y.  Supp.  666,  27  N.  Y.  S.  R.  801.— 
McGrath  v.  Hudson  River  R.  Co.,  19  How. 
Pr.  {N.  Y.)  211,  32  Barb.  144.  Anderson  v. 
North  Pac.  Lumber  Co.,  21  Or  eg.  281,  28 
Pac.  Rep.  5. 

If  the  conclusion  of  negligence  under  the 
facts  stated  may  or  may  not  result,  or 'shall 
depend  on  other  circumstances,  the  question 
is  one  of  fact  for  the  jury.  Chicago  (S^*  /.  R. 
Co.  V.  Lane,  130  ///.  116,  22  A'.  E.  Rep.  513; 
affirming  30  ///.  App.  437. 

Though  all  the  witnesses  may  testify  that 
there  was  no  negligence  on  the  part  of  the 
defendant,  the  jury  may  nevertheless  find 
that  there  was  negligence  if  tiie  physical 
facts  of  the  case  and  the  manner  of  the  in- 
jury raise  a  necessary  inference  to  that  ef- 
fect. Hunt  V.  Missouri  R.  Co.,  14  Mo.  App. 
160 ;  revrsed  on  other  grounds  in  89  Mo.  607. 

Notwithstanding  that  the  damage  diargcd 
as  the  result  of  defendant's  negligence  may 


NEGLIGENCE,  05,66. 


80'< 


evidence 

A^.  A".  Co. 
s.  421,  70 

>f  negli- 
actcr. — 

of  negli- 
lualifying 
:s    to    be 

1,  it  is  the 
Kansas 

<•  £»!£■.  a. 
)f  V.  East 
Rep.  489. 
».,  52  Mo. 
ip  V.  Citi- 
GUISHINO 

2.  QUOT- 

,  24  How. 
tsburgh  & 
St.  300.— 
ic.  R.  Co., 
)lo.  400. — 
Abb.  Afp. 
2 ;  affirm- 
V.  Harlem 
Y.  326,  10 
Bcrnhard 
A  pp.  Dec. 
,1 1  ;  Hack- 
Co.,  S3  N. 
tt  V.  Third 
S,  59   Hun 

UOTKD     IN 

i.  R.  945; 
5  Daly  376, 
.  R.  801.— 
£?.,  19  How. 
Inderson  v. 
<:g.   281,   28 

;  under  the 
It,  or 'shall 
le  question 
go  <&«•  /.  R. 
:.  Rep.  513; 

testify  that 
part  of  the 
heless  find 
le  physical 
•  of  the  in- 
to that  cf- 
4  Mo.  App. 
89  Mo.  607. 
ige  oliargcd 
igence  may 


be  complicated  with  other  causes  for  which 
defendant  would  not  be  liable,  and  that  it 
would  be  difficult  for  the  jury  to  separate  the 
different  causes  of  injury,  yet  it  is  a  ques- 
tion that  must  be  submitted  to  the  judg- 
ment of  the  jury.  Jones  v.  Chicago  &*  A. 
R.  Co.,  28  Mo.  App.  28^.— Quoting  Sturgeon 
V.  St.  Louis.  K.  C.  &  N.  R.  Co..  65  Mo.  569. 

Whether  certain  prec."'tions  talien  were 
sufficient  under  the  evidence,  or  whether 
under  it  there  were  ever  promulgated  or 
established  any  precautions  designed  to 
meet  the  exigency  and  dangers  of  the  situa- 
tion, as  well  as  the  care  exercised  by  the 
plaintiff  at  the  time  of  the  injury,  are  ques- 
tions of  fact  for  the  jury  to  determine  under 
all  the  circumstances  of  the  case.  Wild  v. 
Oregon  S.  L.  <S<«  U.  N.  R.  Co..  21  Oreg.  159, 
27  Pac.  Rep.  954. 

Where  the  plaintiff  in  an  action  for  per- 
sonal injuries  gives  evidence  of  negligence 
on  the  part  of  the  defendant,  and  also  evi- 
dence which  may  or  may  not  be  considered 
as  amounting  to  contributory  negligence, 
the  case  should  be  left  to  the  jury.  Brown 
v.  Great  Western  R.  Co.,  52  L.  T.  622. 

05.  Cases  where  the  standard  of 
duty  is  not  flxe«L— In  a  case  where  the 
law  furnishes  no  definite  rule  as  to  what  a 
party  should  do  in  particular  circumstances, 
and  the  general  rule  of  law  is  alone  applica- 
ble, the  law  necessarily  leaves  the  two  ques- 
tions, What  would  a  man  of  ordinary  pru- 
dence have  done  in  the  circumstances?  and. 
Was  the  conduct  of  the  party  that  of  such  a 
man  ?  to  the  decision  of  the  triers.  And  if 
the  facts  upon  wliich  their  decision  is  based 
are  properly  found,  the  decision  is  final  and 
cannot  be  reviewed  by  the  court.  Andrews 
v.  New  York  &^  N.  E.  R.  Co.,  60  Conn.  293, 
22  Atl.  Rep.  566. — Following  Farrell  v. 
Waterbury  Horse  R.  Co.,  60  Conn.  239. — 
Farrell  v.  Waterbury  Horse  R.  Co.,  46  Am. 
&*  Eng.  R.  Cas.  207,  60  Conn.  239,  21  Atl. 
Rep.  675,  22  Atl.  Rep.  544.  Pennsylvania 
R.  Co.  V.  Piters,  30  Am.  &•  Eng.  R.  Cas. 
607,  1 16  Pa.  St.  206,  8  Cent.  Rep.  408.  9  Atl. 
Rep.  317,  19  W.  A\  C.  418.— Following 
Schuni  V.  Pennsylvania  R.  Co.,  107  Pa.  St. 
8;  Pennsylvania  R.  Co.  v.  Coon,  in  Pa. 
St.  430;  Pennsylvania  R.  Co.  v.  White,  88 
Pa.  St.  327. — Dargan  v.  Pullman  Palace 
Car  Co.,  (Tex.)  26  Am.  <S««  Eng.  R.  Cas.  149. 
Barber  v.  Esse.v,  27  Ft.  62. 

00.  Cases  of'confliPtiiiK  testimony. 
—  Although  in  many  cases  where  the  facts 


from  which  negligence  is  to  be  inferred  are 
undisputed  the   question   of    negligence  is 
one  of  law,  to  be  passed  upon  by  the  court, 
yet,  if  the  factsare  disputed  and  the  evidence 
conflicting,  the  question  sliould  always  be 
left  to  the  jury.     Owens  v.  Hannibal  &»  St. 
J.  R.  Co.,  s&  Mo.  3S6,g  Am.  Ry.  Rep.  19. 
Chicago  City  R.  Co.  v.  Brady,  35  ///.  App. 
460.    Jy!eed  v.  Chicago,  St.  P.,  M.  6-  O.  R. 
Co.,  74/owa  188,37  JV.  W.  Rep.  149.  Theis- 
senv.  Belle  Plaine,  81   Iowa  118,46  N.  W. 
Rep.  854.     Louisville  &*  N.  R.  Co.  v.  Collins, 
2  P)uv.  (A)'.)  114. — Followed  in  Louisville 
&  N.  R.  Co.  V.  Sheets,  (Ky.)  41  Am.  &  Eng. 
R.  Cas.  470,  13  S.  W.  Rep.  248.  Quoted  in 
Needham  v.  Louisville  &  N.  R.  Co.,  85  Ky. 
423,  3  S.  W.  Rep.  797 ;  Paducah  &  E.  R.  Co. 
V.  Letcher,  (Ky.)  12  Am.  &  Eng.  R.  Cas.  61. 
—Baltimore  &'  O.  R.  Co.  v.  State,  36  Md. 
366.— Distinguishing  Baltimore  City  Pass. 
R.  Co.  V.  Wilkinson,  30  Md.  226.    Review- 
ing Baltimore  &  O.  R.  Co.  v.  Fitzpatrick,  35 
Md.  32. — O'Hare  v.  Chicago  &*  A.  R.  Co., 
95  Mo.  662,  15  West.  Rep.  427,  9  5.  W.  Rep. 
23.     Foster  v.  New  York  C.  &•  H.  R.  R.  Co., 
2  How.  Pr.  N.  S.  {N.  Y.)  416.     Brown  v. 
Seventy-third  St.  R.  Co..  2\  N.  Y.  S.  R.  475, 
4  A^.  Y.  Supp.  192,  24/.  (S-  S.  356 ;  affirmed 
in  \2i  N.   Y.  667,  mem.,  24  A'^  E.  Rep.  1094, 
mem.      Pennsylvania   R.    Co.   v.    Ogier,  35 
Pa.  St.  60.— Distinguished   in   Behrens 
V.   Kansas' Pac.    R.  Co.,  8  Am.   &  Eng.  R. 
Cas.  184,  5  Colo.  400;  Ormsbee  v.  Boston 
&  P.  R.  Co.,  14  R.  I.  102,  51  Am.   Rep.  354. 
Reviewed   in   Bcisiegel  v.  New  York  C. 
R.   Co.,  34    N,  Y.   622;    Ernst    7/.  Hudson 
River  R.  Co.,  35  N.  Y.  9,  32  How.   Pr.  61. 
—  Texas  Sr'  P.  R.  Co.   v.   Levi,  13  Am.  &* 
Eng.  R.  Cas,  464,  59  Tex.  674.    St.  Louis  &* 
S.  F.  R.  Co.  v.  McClain,  80  Tex.  85,  15  S. 
W.  Rep.  789. 

Wliere  there  is  great  discrepancy  in  the 
evidence,  the  question  whether  plaintiff's 
injury  was  inflicted  by  the  negligent  acts 
charged  is  for  the  jury.  Totten  v.  Pennsyl- 
vania R.  Co.,  II  Fed.  Rep.  564. 

It  is  the  province  of  the  jury,  when  the 
evidence  of  negligence  is  circumstantial,  to 
determine  the  facts  and  all  proper  infer- 
ences from  them;  and  the  verciict  will  not 
be  set  aside  unless,  in  the  judgment  of 
reasonable  men,  no  such  deduction  as  that 
expressed  therein  could  be  properly  drawn 
from  the  evidence.  McDermott  v.  San 
Francisco  &>  N.  P.  R.  Co.,  68  Cal.  33.  8  Pac. 
Rep.  519. 


i 


1 


f 


808 


NEGLIGENCE,  67. 


ti 


■i 


'4' 
•I 


Where  on  a  question  of  fact  tlie  evidence 
is  conflicting,  the  jury  mus'  decide,  no  mat- 
ter wliat  may  be  the  opinion  of  the  judge  as 
to  the  value  of  the  evidence.  Dublin,  W. 
&*  IV.  A'.  Co.  V.  Slattiry,  L.  K.  3  App.  Cas. 
1 1 55,  27  IV.  K.  191.  39  L.  T.  365. 

The  evidence  bemg  conflicting,  it  is 
proper  to  instruct  the  jury  that  the  court 
leaves  it  to  them  "  as  a  question  of  fact 
whether  there  was  negligence  in  the  plam- 
tiff  that  invited  or  contributed  to  the  injury 
complained  of."  Louisiiille,  N.  A.  &*  C.  R. 
Co.  v.  Richardson,  66  Ind.  43. 

It  is  the  province  of  the  jury,  where  there 
is  conflicting  evidence,  to  determine  whether 
an  engineer,  keeping  a  proper  lookout,  could 
have  stopped  his  train  or  so  slackened  its 
speed  as  to  diminish  the  dangers  of  a  col- 
lision. Hinkle  v.  Richmond  &*  D.  R.  Co., 
109  N.  Car.  472,  13  S.  E.  Rep.  884. 

Where  it  appeared  that  plaintiff,  upon 
approaching  the  crossing,  stood  up  in  the 
wagon  and  listened  about  a  minute  for  ap- 
proaching trains,  and  then,  driving  ahead, 
was  injured  by  a  train,  and  that  no  bell  or 
whistle  was  sounded — this  latter  fact,  how- 
ever, being  contradicted  by  the  defendant — 
held,  that  the  question  of  negligence  on 
the  part  of  the  company  was  for  the  jury. 
Smith  v.  Rio  Grande  Western  R.  Co.,  9 
Utah  141,  33  Pac.  Rep.  626. 

PlaintifT  while  crossing  a  track  at  night 
was  struck  by  a  train  of  gravel  cars  pushed 
in  front  of  the  locomotive.  There  was  no 
light  on  the  foremost  car,  but  there  was  a 
strong  headlight  on  the  locomotive.  He 
testified  that  before  starting  to  cross  he 
looked  up  and  down  the  track,  but  did  not 
see  the  train  nor  the  headlight.  Held,  that 
the  question  of  the  company's  negligence 
was  for  the  jury.  Bohan  v.  Milwaukee,  L. 
S.  (S-  W.  R.  G>.,  IS  Am.  &*  Eng.  R.  Cas. 
374.  58  IVis.  30,  15  N.  IV.  Rep.  801. 

M7«  Where  the  facts  are  in  dispute 
niid  more  than  one  inference  may  be 
drawn. — Where  the  facts  are  disputed, 
negligence  is  a  question  of  fact  for  the  jury  ; 
where  the  facts  are  undisputed,  and  but  one 
deduction  is  to  be  drawn  from  them,  it  pre- 
sents a  question  of  law  for  the  court ;  but 
where  the  facts  are  undisputed,  but  are  of 
sucii  a  nature  that  different  minds  will  draw 
different  conclusions  from  them  as  to  the 
reasonableness  and  care  of  a  party's  conduct, 
it  is  a  proper  question  for  the  determination 
<if  a  jury.  Kansas  Pac.  R.  C  v.  Pointer, 
14  Kan.   37.     Grand  Trunk  R.  'Jo.  v.  Ives, 


144  U.S.  408,  12  Sup.  Ct.Rep.  679.  O'Neill 
V.  Chicago  &•  N.  IV.  R.  Co.,  i  McCrary  ( U. 
S.)  505.— Reb-erred  to  in  Lockhart  v.  Little 
Rock  &  M.  R.  Co.,  40  Fed.  Rep.  631.— 
Louisville  &*  N.  R.  Co.  v.  Alien,  28  Am.  &* 
Eng.  R.  Cas.  514,  78  Ala.  494.  Benson  v. 
Central  Pac.  R.  Co..  54  Am.  &*  Eng.  R.  Cas. 
126,  98  Cal.  4S,  32  Pac.  Rep.  809.  33  Pac. 
Rep.  206.— Adopting  Wilson  v.  Southern 
Pac.  R.  Co.,  62  Cal.  172.— Lake  Shore  &*  M. 
S.  R.  Co.  V.  Johnsen,  135  ///.  641,  26  A'^.  E. 
Rep.  510;  affirming  35  ///.  App.  430.  Ohio 
6-  M.  R.  Co.  V.  Collarn,  5  Am.  &»  Eng.  R.  Cas. 
554, 73  Ind.  261,  38  Am.  Rep.  134.— Quoting 
Sioux  City  &  P.  R.Co.w.  Stout,  ^  Wall.  (U. 
S.)  6(,7.— Baltimore  &»  O.  &*  C.  R.  Co.  v. 
Walborn,  127  Ind.  142,  26  N.  E.  Rep.  207. — 
Reviewing  Sioux  City  &  P.  R.  Co.  v.  Stout, 
17  Wall.  (U.  S.)  6s7—R»sh  v.  Coal  Bluff 
Min.  Co.,  131  Ind.  135,  30  N.  E.  Rep.  904. 
De  Paww  v.  Stubblefield,  132  Ind.  182,  31  A^. 
E.  Rep.  796.  Whitsett  v.  Chicago,  R.  I.  &• 
P.  R.  Co.,  22  Am.  <S-  Eng.  R.  Cas.  336,  67 
Iowa  150,  25  A'^.  W.  Rep.  104.  Rebelsky  v. 
Chicago  &*  N.  W,  R.  Co.,  79  Iowa  55,  44  A^. 
W.  Rep.  536.  State  v.  Baltimore  6-  O.  R. 
Co.,  35  Am.  &>  Eng.  R.  Cas.  412,  69  Md. 
339,  14  At  I.  Rep.  688,  12  Cent.  Rep.  890. 
Crosby  v.  Detroit,  G.  H.  <S-  M.  R.  Co.,  58 
Mich.  458,  25  ^V.  W.  Rep.  463.  Ashman  v. 
Flint  &*  P.  M.  R.  Co.,  53  Am.  &*  Eng.  R. 
Cas.  80,  90  Mich.  567,  51  A^.  IV.  Rep.  645. 
Bennett  v.  Syndicate  Ins.  Co.,  39  Minn.  254, 
39  A'^.  IV.  Rep.  488.— Following  Abbett 
V.  Chicago,  M.  &  St.  P.  R.  Co.,  30  Minn. 
482. — Mississippi  C.  R.  Co.  v.  Mason,  51 
Miss.  234.  Bell  V.  Hannibal  &»  St.  J.  R. 
Co.,  4  Am.  Gr*  Eng.  R.  Cas.  580,  72  Mo.  50. 
Barry  v.  Hannibal  fi-  St.  J.  R.  Co.,  98  Mo. 
62,  II  5.  W.  Rep.  308.— Quoted  in  Bccke 
V.  Missouri  Pac.  R.  Co.,  102  Mo.  ^AA.~Huhn 
V.  Missouri  Pac.  R.  Co.,  31  Am.  &*  Eng.  R. 
Cas.  221,  92  Mo.  440,  10  West.  Rep.  405,4  S. 
W.  Rep.  937.  Tabler  v.  Hannibal  &•  St.  J. 
R.  Co.,  31  Am.  &*  Eng.  R.  Cas.  185,  93  Mo. 
79,  II  West  Rep.  458,  5  S.  W.  Rip.  810.— 
Quoted  in  Becke  71.  Missouri  Pac.  R.  Co., 
102  Mo.  544. — Lynch  v.  Metropolitan  St.  R. 
Co.,  112  Mo.  420,  20  S.  W.  Rep.  642. 
O'Mellia  v.  Kansas  City,  St.  J.  &*  C.  B.  R. 
Co.,  115  Mo.  205,  21  S.  W.  Rep.  503. — 
Quoting  Grand  Trunk  R.  Co.  v.  Ives,  144 
U.  S.  408,  12  Sup.  Ct.  Rep.  67<).— Gratiot  v. 
Missouri  Pac.  R.  Co.,  55  Am.  &^Eng.  R.  Cas. 
108,  116  Mo.  450,  21  5.  W.  Rep.  1094.  Fu- 
sili  V.  Missouri  Pac.  R.  Co.,  45  Mo.  App.  535. 
Wilbur n  v.  St.  Louis,  I.  M.  &•  S.  R.  Co.,  48 


-TTTTW^ 


NEGLIGENCE,  68-70. 


809 


Mo.  App.  224.  Johnson  v.  Missouri  Pac. 
K.  Co.,  23  Am.  &*  Eng.  R.  Cas.  429,  18 
A'ed.  690.  26  A''.  IV.  Hep.  347.  Omaha  St. 
a:  Co.  v.  Craig,  58  Am.  &>  Eng.  li.  Cas.  ao8, 
39  Neb.  601,  58  A^.  W.  Rep.  209.  Barrett  v. 
r/z/r^  Ave.  R.  Co.,  8  /i/J*.  Pr.  N.  S.  (N.  Y.) 
205  ;  affirmed  in  45  N.  V.  628.  Maloy  v. 
AVw  r<>r/J  C  A'.  Ctf.,  40  How.  Pr.  {N.  K) 
274.  58  Barb.  182.  y<y«^  v.  Troy  <S-  i!?.  /f. 
Co.,  6  ^;«.  (S-  £•;(§-.  R.  Cas.  54,  83  A'.  Y.  572. 
—Applied  in  Jones  v.  Utica  &  B.  R.  R. 
Co.,  36  Hun  (N.  Y.)  115.  Distinguished 
IN  McPhillips  V.  New  York.  N.  H.  &  H.  R. 
Co.,  12  Daly  (N.  Y.)  365.  Quoted  in  New- 
ell V.  Ryan,  40  Hun  286. — Downey  v.  Inman 
<S-  /.  Steamship  Co.,  18  N:  Y.  S.  R.  1017. 
Sweeney  v.  New  York,  N.  H.  <&*  H.  R.  Co., 
ztj.  <S-  S.  223,  32  N.  Y.  S.  R.  416,  10  A^,  Y. 
Sttpp.  305.  Deans  v.  Wilmington  &*  W. 
R.  Co.,  45  y4;«.  <S-  Eng.  R.  Cas.  45,  107  A'. 
Car.  686,  12  5.  E.  Rep.  77.  7V.irrtj  <S-  P.  R. 
Co.  V.  Anderson,  2  Tex.  App.  {Civ.  Cas.) 
161.     Vinton  v.  Schwab,  32  t'/.  612. 

But  this  rule  is  subject  to  the  qualifica- 
tion that  the  inference  of  negligence  must 
be  a  reasonable  one ;  where  it  is  impossible 
to  infer  negligence  from  the  established 
facts  without  reasoning  irrationally,  and  con- 
trary to  common  sense  and  the  experience 
of  average  men,  it  is  not  a  question  for  the 
jury,  and  the  court  should  direct  a  verdict 
for  the  defendant.  (Maxwell,  C.J.,  dissent- 
ing.) Chicago,  B.  &*  Q.  R.  Co.  v.  Landauer, 
54  Am.  &*  Eng.  R.  Cas.  640,  36  Neb.  642,  54 
JV.  IV.  Rep.  976. 

08.  Whether  there  was  gross  neg- 
ligence. —  Whether  the  defendant  was 
guilty  of  gross  neglect  is  a  question  for  the 
jury.  Louisville  Southern  R.  C^.  V.  Minogue, 
90  Ky.  369.  14  S.  W.  Rep.  357. 

Gross  negligence  does  not,  in  construction 
of  law,  amount  to  fraud,  but  is  evidence  to 
be  left  to  the  jury,  from  which  they  may  in- 
fer fraud  or  the  want  of  bona  fides.  Wilson 
v.  York  &*  M.  L.  R.  Co.,  11  Gill  &*  T.  {Md.) 
58. 

00.  Question  of  safety  orunsafety. 
— Whether  proper  care  has  been  used  in  the 
construction  of  a  railroad  is,  in  general,  a 
question  of  fact,  and  the  sudden  giving  away 
of  part  of  its  structure  is,  if  unexplained, 
some  evidence  of  negligence  in  its  construc- 
tion. Stoher  v.  St.  Louis,  I.  M.  &*  S.  R. 
Co.,  31  Am.  &•  E>^.  R.  Cas.  229, 91  Mo.  509, 
10  West.  Rep.  54,  4  S.  W.  Rep.  389. 

Where  the  question  whether  or  not  a  rail- 
r  i.irf  company  has  been  negligent  depends 


upon  the  distinction  between  that  which  is 
reasonably  safe  and  that  which  is  not  so,  it 
is  a  question  exclusively  for  the  jury,  and 
the  court  will  not  disturb  their  finding  on 
the  ground  that  there  was  no  evidence  of 
negligence.  Leishm'ann  v.  London,  B.  &*  S. 
C.  R.  Co.,  23  Z.  r.  712,  19  W.  R.  106. 

70.  Whether  given  rate  of  speed 
is  excessive.— Whether  the  rate  of  speed 
at  which  a  train  was  running  constituted  an 
element  of  negligence  is  a  question  of  fact 
for  the  jury  under  all  the  circumstances  of 
the  case,  and  not  a  question  of  law  for  the 
court.  Louisville,  N.  A.  6*  C.  R.  Co.  v. 
Stommel,  126  Ind.  3$,  2$  N.  E.  Rep.  863. 

Whether  the  speed  of  the  train  in  ques- 
tion was  usual  and  proper  under  the  circum- 
stances is  for  the  jury  to  determine  from 
the  evidence.  Beems  v.  Chicago,  R.  I  &»  P. 
R.  Co.,  67  Iowa  435,  25  A';  W.  Rep.  693. 
Taylor  v.  St.  Louis,  I.  M.  <S-  S.  R.  Co.,  83 
Mo.  386.  Miller  v.  New  York  C.  «S-  //.  R. 
R.  Co.,  20  N.  Y.  Supp.  163,  6s  Nun  623, 
mem.,  48  N.  Y.  S.  R.  23.— Applying  Salter 
V.  Utica  &  B.  R.  R.  Co..  88  N.  Y.  42 ;  Thomp- 
son  V.  New  York  C.  &  H.  R.  R.  Co.,  1 10  N. 
Y.636,  17  N.  E.  Rep.  690;  Coleman  v.  New 
York  C.  &  H.  R.  R.  Co.,  17  N.  Y,  Supp. 
596. — Morse  v.  Rutland  &•  B.  R.  Co.,  27 
Ft.  49. 

But  their  finding  must  not  be  without 
evidence,  nor  so  palpably  against  the  evi- 
dence as  to  evince  passion,  or  prejudice,  or 
to  show  that  they  have  been  misled  and 
done  manifest  injustice.  Wabash,  St.  L.  &* 
P.  R.  Co.  V.  Hicks,  13  ///.  App.  407.— Quot- 
ing Chicago.  B.  &  Q.  R.  Co.  v.  Lee.  68  III. 
582  :  Peoria,  D.  &  E.  R.  Co.  v.  Miller,  1 1  111. 
App.  375- 

The  law  not  having  fixed  the  rate  of 
speed  at  which  cars  may  be  run  upon  a 
railroad  in  and  across  the  streets  of  a  city, 
it  is  generally  a  question  of  fact  in  each 
case  whether  the  actual  rate  is  excessive  or 
dangerous.  Whether  it  is  so  or  not  will 
depend  to  some  extent  upon  the  safeguards 
which  are  adopted  to  prevent  accidents. 
Wilds  V.  Hudson  River  R.  Co.,  2gN.  K  315, 
—Criticised  in  Cleveland,  C,  C.  &  I.  R, 
Co.  V.  Newell,  8  Am.  &  Eng.  R.  Cas.  377, 
75  Ind.  $42.— Grant  v.  C/nion  Pac.  R.  Co., 
45  Fed.  Rep.  673.  Frick  v.  St.  Louis,  A'.  C. 
<S-  A^.  R.  Co.,  8  Am.  <S-  Eng.  R.  Cas.  280.  75 
Mo.  595.  Louisville  (S-  N.  R.  Co.  v.  Milam, 
13  Am.  <S-  E>tg.  R.  Cas.  507,  9  Lea  (Tenn.) 
223.— Quoting  Massoth  v.  Delaware  &  H. 
Canal  Co.,  64  N.  Y.  531. 


i 


810 


NEGLIGENCE,  71,  72. 


It  is  not  correct  to  say  that  in  every  case 
where  a  fault  in  this  respect  is  alleged  the 
question  must  be  submitted  to  the  jury.  If 
it  be  clearly  shown  that  on  the  occasion  in 
question  the  velocity  was  not  greater  than 
that  which  had  been  Usually  practised  be- 
fore with  the  tJicit  consent  of  the  commu- 
nity and  without  accident,  it  should  not  be 
considered  an  open  question  whether  run- 
ning at  that  rate  was  negligent  and  unlaw- 
ful. Wildsv.  Hudson  Ktver  R.Co.,2^  N.  Y. 
315.— Criticised  in  Cleveland,  C,  C.  &  I. 
R.  Co.  V.  Newell,  8  Am.  &  Eng.  R.  Cas.  377, 
75  Ind.  542.  Die'  INGUISHED  in  Solen  v. 
Virginia  &  T.  R.  Co.,  13  Nev.  \o6,—Lock- 
wooitw.  Chicago  &*N.  W.  Ji,  Co.,  6  Am.  &* 
Eng.  R.  Cas.  151,  55  Wis.  50, 12  iV.  W.  Rep. 
401. 

Negligence  is  a  question  for  the  jury 
alone ;  and  for  the  judge  'o  instruct  them 
that  if  the  law  provides  that  the  trains  shall 
run  at  a  certain  speed,  and  they  were  run- 
ning above  that  speed,  it  was  negligence, 
is  error.  Western  &*  A.  R.  Co.  v.  King, 
19  Am.  &*  Eng.  R.  Cas.  255,  70  Ga.  261. 
— Following  Wright  v.  Georgia  R.  &  B. 
Co..  34  Ga.  337. 

Whether  there  was  not  a  want  of  ordinary 
care  on  the  part  of  the  defendant  in  running 
a  freight  train  backward  within  the  city 
limits  at  the  rate  of  seven  or  eight  miles  an 
hour,  with  many  pedestrians  passing  along 
the  side  of  its  track,  with  a  beam  projecting 
a  foot  and  a  half  beyond  the  side  of  the  car, 
without  brakemen,  lookout,  or  signal  to  give 
warning,  was  a  question  properly  submitted 
to  the  jury.  Kansas  Pac.  R.  Co.  v.  V/ard, 
4  Colo.  30, 

The  question  of  the  negligence  of  a  rail- 
road company  in  running  a  passenger-train 
at  too  high  a  rate  of  speed  over  a  defective 
track  is  for  the  jury.  Andrews  v.  Chicago, 
M.  6-  St.  P.  R.  Co.,  52  Am.  6-  Eng.  R.  Cas. 
252,  ^6  Iowa  677,  53  N.  W.  Rep.  399. 

A  jury,  having  all  the  facts  as  to  the  con- 
dition of  the  track  before  them,  are  the 
proper  judges  as  to  whether  any  rate  of 
speed  is  dangerous.  Meloy  v.  Chicago  &* 
N.  W.  R.  Co.,  {Iowa)  33  Am.  &*  Eng.  R. 
Cas.  358,  37  A^.   W.  Rep.  335. 

It  is  a  question  for  the  jury  whether  a 
special  train  can  be  run  without  negligence 
at  such  a  speed  as  to  make  it  difficult  to 
check  its  speed  within  a  reasonable  time 
and  distance.  Marcott  v.  Marquette,  H.  &* 
O.  R.  Co.,  4  Am.  &»  Eng.  R.  Cas.  548,  47 
Mich.  I,  10 TV.  W.  Rep.  53. 


Whether  it  is  negligence  on  the  part  of  a 
company  to  run  a  regular  train  rapidly  over 
a  track  between  an  apparent  station  and  an 
excursion  train  which  has  stopped  tempo- 
rarily to  allow  the  regular  train  to  pass, 
without  giving  warning  to  the  e.\cursionists, 
is  a  question  of  fact  for  the  jury.  Wandell 
V.  Cor  bin,  38  Hun  (N.  Y.)  391. 

Where  an  injury  results  from  a  train  col- 
liding with  plaintiff's  buggy  on  the  street  of 
a  city,  the  question  whether  the  train  was 
running  at  an  improper  rate  of  speed  is 
properly  left  to  the  jury.  Richardson  v. 
New  York  C.  <S-  H.  R.  R.  G;.,  15  A'.  Y.  Supp. 
868,  61  Hun  624,  mem.,  40  A^.  Y.  S.  R.  616; 
affirmed  in  133  N.  Y.  563,  mem.,  30  A^.  E. 
Rep.  1148,  mem. 

Where  an  injury  results  from  a  street-car 
colliding  with  a  wagon,  the  question  whether 
the  car,  under  the  circumstances,  was  driven 
too  fast  is  for  the  jury.  White  v.  Milwaukee 
City  R.  Co.,  18  Am.  &*  Eng.  R.  Cas.  213,  61 
Wis.  536,  21  A^.  W,  Rep.  524,  50  Am.  Rep. 
154. 

Plaintiff  was  injured  by  being  struck  by 
an  engine  in  a  city  where  an  ordinance 
limited  its  speed  to  eight  miles  an  hour. 
The  testimony  as  to  the  speed  of  the  engine 
gave  varied  estimates  of  from  four  to  fifteen 
miles  per  hour.  Held,  that  whether  the 
engine  was  going  faster  than  eight  miles  an 
hour  or  not,  it  was  for  the  jury  to  say 
whether,  under  the  circumstances,  it  was 
going  at  an  improper  speed.  Finklestein  v. 
New  York  C.  &•  H.  R.  R.  Co.,  ^\  Hun  34, 
2  A^.  Y.  S.  R.  680. 

71.  Whether  the  presumption  of 
negligence  has  been  rebutted.— 
Whether  or  not  the  presumption  of  negli- 
gence, which  section  3033  of  the  Ga.  Code 
provides  shall  in  all  cases  be  against  a  rail- 
road company,  has  been  removed  is  a  ques- 
tion of  fact  for  the  jury,  and  not  one  of  law 
to  be  determined  by  the  court.  Central  R. 
Co.  V.  Hubbard,  86  Ga.  623,  12  S.  E.  Rep. 
1020.— Followed  in  Savannah  &  W.  R. 
Co.  V.  Phillips,  90  Ga.  829. — Savannah  &* 
W.  R.  Co.  V.  Phillips,  90  Ga.  829.  17  S.  E. 
Rep.  82.— Following  Central  R.  Co.  v. 
Hubbard,  86  Ga.  623. 

7*2.  Proximate  and  remote  cause. 
— Ordinarily  the  question  of  what  was  the 
proximate  cause  of  an  injury  is  one  for  the 
jury,  and  not  for  the  court.  Denver,  T.  &* 
G.  R.  Co.  V.  Robbins,  2  Colo.  App.  313,  30  Pac. 
Rep.  261.— Following  lilyihe  v.  Denver  & 
R.  G,  R.  Co.,  15  Colo.  333.    Quoting*  Le- 


NEGLIGENCE,  73. 


811 


high  Valley  R,  Co.  v.  McKeen,  90  Pa.  St. 
122. — Pullman  Palace  Car  Co.  v.  Laack,  143 
111.  242,  32  A^.  E.  Rep.  285.— Disapprov- 
ing Ryan  v.  New  York  C.  R.  Co..  35  N.  Y. 
210.  Following  Feiit  v.  Toledo.  P.  &  W. 
R.  Co.,  59  111.  349;  Toledo.  P.  &  W.  R.  Co. 
V.  Pindar,  53  111.  451 ;  Toledo.  W.  &  W.  R. 
Co.  V.  Muthersbaugh,  71  111.  $72.— Adams 
V.  Missouri  Pac.  R.  Co.,  41  Am.  <S-  En^.  R. 
Cas.  105,  100  Afo.  555,  12  5.  IV.  Rep.  637,  13 
S.  VV.  Rep.  509.  Ebright  V.  Mineral  R.  &* 
M.  Co.,  {Pa.)  15  All.  Rep.  709.  Vallo  v. 
United  Slates  Exp.  Co.,  ^M  Pa.  5/.  404,  23 
Atl,  Rep.  594.  Atkinson  v.  Goodrich  Transp. 
Co.,  60  Wis.  141,  18  N.  W.  Rep.  764.— 
Approving  Perley  v.  Eastern  R.  Co.,  98 
Mass.  414 ;  Pent  v.  Toledo,  P.  &  W.  R.  Co., 
59  111.  349;  Annapolis  &  E.  R.  Co.  v.  Gantt, 
39  Md.  115;  Vaughan  v.  Taff  Vale  R.  Co.,  3 
H.  &  N.  743 ;  Smith  v.  London  &  S.  W.  R. 
Co.,  L.  R.  5  C.  P.  98 ;  Collins  v.  Middle 
Level  Com'rs,  L.  R.  4  C.  P.  279 ;  Sneesby'v. 
Lancashire  &  Y.  R.  Co..  L.  R.  9  Q.  B.  263. 
Disapproving  Ryan  v.  New  York  C.  R. 
Co.,  35  N.  Y.  210;  Pennsylvania  R.  Co.  v. 
Xerr,  62  Pa.  St.  353.  Following  Kellogg 
V.  Chicago  &  N.  W.  R.  Co.,  26  Wis.  223; 
Brown  v.  Chicago,  M.  &  St.  P.  R.  Co.,  54 
Wis.  342.  Quoting  Milwaukee  &  St.  P.  R. 
Co.  V.  Kellogg,  94  U.  F    169. 

And  must  be  submitted  to  the  jury  under 
proper  instructions  from  the  court.  Pielke 
V.  Chicago,  M.  6f  St.  P.  R.  Co.,  38  Am.  <S- 
Eng.  R.  Cas.  349,  5  Dak.  444,  41  A'^.  W.  Rep. 
669.— Applying  Doggett  v.  Richmond  & 
D.  R.  Co.,78  N.  Car.  305. 

Where  the  character  of  the  facts  are  such 
that  different  conclusions  may  be  drawn 
from  them.  Dunn  v.  Cass  Ave.  iS>«  F.  G.  R. 
Co.,  21  Mo.App.  188. 

But  where  the  facts  are  undisputed,  and 
the  intervening  agency  is  manifest,  it  is  not 
error  for  the  court  to  withhold  the  evidence 
from  the  jury.  Hoag  V.  Lake  Shore  &*  Af. 
S.  R.  Co.,  85  Pa.  St.  293,  18  Am.  Ry.  Rep. 
405.— Explaining  Pennsylvania  R.  Co.  v. 
Hope,  80  Pa.  St.  373;  Raydure  v.  Knight, 
2  W.  N.  C.  (Pa.)  713.— Applied  in  O'Con- 
nor V.  Illinois  C.  R.  Co.,  44  La.  Ann.  339. 
Disapproved  in  Kuhn  v.  Jewett,  32  N.  J. 
Eq.  647.  Explained  in  Lehigh  Valley  R. 
Co.  V.  McKeen,  90  Pa.  St.  122.  Quoted 
IN  Boss  V.  Northern  Pac.  R.  Co.,  2  N.  Dak. 
128.—  IVcst  Mahanoy  Tp.  v.  Watson,  1 16  Pa. 
St.  344,  9  Atl.  Rep.  430. 

Where  a  company  interferes  with  a  turn- 
pike in  constructing  its  road,  and  the  law 


requires  it  to  restore  it  to  its  required 
width,  if  it  fails  to  do  so,  or  operates  its 
road  without  a  screen  between  the  two 
roads,  or  other  precautions  necessary  to 
prevent  frightening  teams,  it  is  liable  for 
any  injury  that  results ;  but  whether  the 
company  has  been  negligent  in  constructing 
its  road  too  near  the  turnpike,  or  in  failing 
to  provide  such  screens,  and  whether  such 
negligence  was  the  proximate  cause  of  an 
injury,  are  questions  for  the  jury  or  the 
referee,  as  the  case  may  be.  Moshier  : , 
Utica  6-  S.  R.  Co.,  8  Barb.  (N.  Y.)  427. 

73.  Due  diligence,  or  due  care.— 
What  constitutes  due  diligence  is  a  ques- 
tion for  the  jury,  and  the  burden  of  proof 
is  on  the  plaintiff  to  show  negligence.  Najf 
V.  Minneapolis  <S-  St.  L.  R.  Co. ,  4  McCrary 
{U.  S.)  622, 14  Fed.  Rep.  558.  Chicago  Sr* 
A.  R.  Co.  V.  Adler,  39  Am.  &•  Eng.  R.  Cas. 
666,  129  ///.  335,  21  N.  E.  Rep.%\6;  affirm- 
ing 28  ///.  App.  102.  Baltimore  fi-  0.  R. 
Co.  V.  Mull^an,  45  Md.  486.  Lesinsky  v. 
Great  Western  Dispatch,  13  Mo.  App.  575. 
Merrill  x.  American  Exp.  Co.,  62  A'^.  H.  514. 

It  is  a  question  for  the  jury  to  determine 
what  facts  constitute  due  care,  the  want  of 
which  is  culpable  negligence.  This  must 
depend  upon  the  circumstances  of  the  case, 
an  important  item  of  which  is  the  suscepti- 
bility to  injury  of  the  property  exposed. 
The  danger  and  probable  extent  of  injury, 
in  case  it  should  occur,  regulate  or  fix  the 
degree  of  care  that  is  required.  King  v. 
American  Transp.  Co.,  i  FUpp.  {U.  S.)  i. 

Even  though  the  facts  are  undisputed,  it 
is  for  the  jury  and  not  for  the  judge  to  de- 
termine whether  proper  care  was  exercised 
or  whether  negligence  appears  whenever, 
upon  the  facts  in  evidence,  different  minds 
might  honestly  draw  different  conclusions 
from  such  evidence.  Williams  v.  Northern 
Pac.  R.  Co.,  1 1  Am.  &>  Eng.  R.  Cas.  421,  3 
Dak.  168,  14  A'.  W.  Rep.  97,— Reviewing 
Mangam  v.  Brooklyn  R.  Co.,  38  N.  Y.  455 ; 
Detroit  &  M.  R.  Co.  v.  Van  Steinburg,  17 
Mich.  99. 

But  courts  are  bound  to  see  that  the  fact 
when  found  by  the  jury  rests  upon  evidence. 
Illinois  C.  R.  Co.  v.  Brookshire,  3  ///.  App. 

221). 

And  it  is  for  the  court  to  determine 
whether  the  proof  is  sufRcient  to  authorize 
the  jury  to  find  due  care.  Wormell  v. 
Maine  C.  R.  Co.,  31  Am.  &•  Eng.  R.  Cas. 
272,  79  Me.  397,  4  N.  Efig.  Rep.  692,  10  Atl. 
Rep.  49. 


I 


813 


NEGLIGENCE,  74. 


Though  an  injured  person  may  have 
been  guilty  of  ne'»lij;cnce,  still  the  question 
whether  the  c  jndant  might  have  pre- 
vented the  injury  by  the  exercise  of  rea- 
sonable care  and  diligence  is  for  the  jury. 
O' Flaherty  v.  Union  R.  Co.,  45  Mo.  70. 

74.  Various  applications  of  the 
ruic— The  question  as  to  whether,  in  any 
given  case,  there  has  been  negligence  on 
the  part  of  the  owner  of  property  in  the 
niiiintenance  thereon  of  dangerous  machin- 
ery is  a  question  of  fact  for  the  jury,  to  be 
decided  in  view  of  the  situation  of  the  prop- 
erty and  the  attendant  circumstances.  Bar- 
ren V.  Southern  Pac.  Co.,  48  Am.  &*  Eng. 
R.  Cas.  532,  91  Cal.  296,  27  Pac.  Rep.  666. 

A  railroad  company  is  only  bound  to  man 
its  trains  with  brakemen  to  meet  the  ordi- 
nary demands  of  the  road,  unless  they  have 
reason  to  believe  that  an  unusual  exigency 
will  arise  that  will  require  more  than  are 
usually  necessary,  and,  it  being  the  province 
of  the  jury  to  determine  the  question  of 
negligence,  it  is  a  question  for  them  to 
determine  whether  there  were  brakemen 
enougii  on  a  train  for  ordinary  purposes. 
Schmidt  V.  Chicago  <S-  A^.  W.  R.  Co.,  83  ///. 
405. 

Whether  it  is  negligence  to  detach  cars 
from  a  train  and  to  permit  them  to  proceed 
along  the  track  and  over  a  highway  cross- 
ing without  an  engine  attached  must  de- 
pend upon  the  circumstances  of  the  particu- 
lar case.  The  facts  may  be  of  such  a 
character,  shown  by  undisputed  evidence, 
that  the  conduct  of  the  company  may  be 
said  to  be  negligent  per  se,  but  usually  it 
will  be  a  question  for  the  jury  under  proper 
instructions.  Ohio  «S-  M.  R.  Co.  v.  Mc- 
Daneld,  5  Ind.  App.  108.  31  N.  E.  Rep.  836. 
— Quoting  Pennsylvania  Co.  v.  State,  61 
Md.  108;  Illinois  C.  R.  Co.  v.  Baches,  55 
111.  379;  Illinois  C.  R.  Co.  v.  Hammer,  72 
111.  347.  Reviewing  Ferguson  7/.  Wiscon- 
sin C.  R.  Co.,  19  Am.  &  Eng.  R.  Cas.  285, 
63  Wis.  145 ;  Kay  v.  Pennsylvania  R.  Co., 
65  Pa.  St.  269 ;  Howard  v.  St.  Paul,  M.  & 
M.  R.  Co.,  19  Am.  &  Eng.  R.  Cas.  283,  32 
Minn.  214. 

Knowledge  on  the  part  of  a  servant  of  a 
defect  in  a  railroad  track  which  caused  the 
injuries  for  which  he  sues  is  a  matter  for 
the  jury  where  different  conclusions  might 
be  drawn  from  the  evidence  on  such  ques- 
tion. Mahaney  v.  St.  Louis  tS-  H,  R.  Co., 
108  Mo.  191,  18  S.  IV.  Rep.  895. 
It  IS  the  duty  of  a  party  who  receives  a 


personal  injury  to  take  proper  care  of  the 
injured  member,  and  not  aggravate  the  in- 
jury by  improper  remedies ;  but  the  jury 
are  the  judges  of  w'lat  are  proper  and  what 
improper  remedies.  Maloy  v.  New  York  C. 
R.  Co.,  40  How.  Pr.  (N.  V.)  274,  58  Barb. 
182. 

The  negligence  of  a  person  having  charge 
of  an  infant  at  the  time  it  is  injured,  and 
of  a  company  injuring  it,  are  questions  for 
the  jury.  Akersloot  v.  Second  Ave.  R.  Co., 
27/.  &*S.(N.  K)  555;  affirmed  in  133  A'. 
Y.  676,  mem.,  31  N.  E.  Rep.  626,  mem. 

Where  the  action  is  by  an  employe  to  re- 
cover for  personal  injuries,  it  is  error  to 
submit  the  case  to  the  jury  to  find  a  verdict 
for  the  plaintiff  on  the  sole  ground  that  the 
injury  was  caused  by  a  failure  to  block  a 
guard  rail.  Ireland  v.  Gardner,  4  Silv.  Sup. 
Ct.  119,  26  A'.  Y.  S.  R.  895,  7  A'.  Y.  Supp. 
609.— Following  Appel  v.  Buffalo,  N.  Y. 
&  P.  R.  Co.,  Ill  N.  Y.  550. 

Whether  it  was  negligence  on  the  part  of 
a  railroad  company  to  construct  or  permit 
the  continuance  of  its  roadbed  with  an  open 
ditch  under  its  track  is  a  question  of  fact 
for  the  jury.  So  also  is  the  question 
whether  a  plaintiff,  having  been  injured  by 
such  ditch,  contributed  to  the  injury  by  his 
negligence.  Houston  &»  G.  N.  R.  Co.  v. 
Randall,  50  Tex.  254. 

The  question  of  the  negligence  of  the 
railroad  company  in  not  keeping  a  proper 
lookout  in  the  direction  in  which  the  train 
was  moving  is  ordinarily  to  be  submitted 
to  the  jury.  Johnson  v.  Chicago  &^  N.  IV, 
R.  Co.,  56  Wis.  274,  14  A'.  IV .  Rep.  181. 

Evidence  that  a  rescuing  engine  with  a 
snow  plow  attached  approached  a  stalled 
engine  during  a  snowstorm,  without  check- 
ing its  speed,  and  ran  into  the  train 
and  killed  a  person,  is  sufficient  to  go  to 
the  jury  on  the  question  of  gross  negligence 
of  the  company's  employes.  Annas  v.  Afil- 
waukee  &*  N.  R.  Co.,  27  Am.  &■•  Eng.  R. 
Cas.  102,  67  Wis.  46,  30  A'.  W.  Rep.  282,  58 
Am.  Rep.  848. 

A  railroad  company  left  a  loaded  car, 
coupled  with  two  empty  cars,  standing  on  a 
switch  which  inclined  towards  their  main 
track,  the  same  being  secured  by  their 
brakes  and  a  railroad  tie  placed  under  the 
wheels  of  the  loaded  car  ;  the  cars  got  upon 
the  main  track,  and  thereby  an  accident  oc- 
curred, the  plaintiff  being  injured.  Held, 
the  company  was  no*  irresponsible,  as  a 
matter  of  law,  even  the  ugh  the  cars  could 


NEGLIGENCE,  76. 


813 


not  have  got  on  the  main  track  but  for  tlie 
wn)ii(i;(ul  act  of  a  stranger.  Smith  v.  \'exv 
York,  S.  *•  W.  li.  Co..  i8  Am.  ^  AV/i', 
A.  Cas.  399,  46  A'.  /.  L.  7. 

Plaintiff's  intestate  was  killedonas'ormy 
murning  by  a  passing  engine  wliile  shovel- 
ing snow  from  defendant's  track.  Plain- 
tiff's evidence  tended  to  show  that  the  en- 
gineer in  charge  had  on  various  previous 
occasions  run  engines  across  the  street 
without  notice,  which  was  known  to  the 
superintendent  and  train  dispatcher,  and 
was  known,  or  ought  to  have  been  known, 
to  the  other  officers  of  the  company.  NM, 
that  it  was  proper  to  submit  the  case  to  the 
jury.  IVa/i  v,  Delaware,  L.  &*  W.  Ji.  Co., 
28  A'.  Y.  S.  A\  132,  7  A^.  V.  Supp.  709,  54 
Hun  454;  affirmed  in  125  A'.  Y.  727,  mem., 
26  A^.  E.  Rep.  757,  mem. 

There  was  no  brake  at  the  rear  end  of  the 
last  car.  The  brakeman  on  the  last  car, 
seeing  the  track  clear  a  few  minutes  before 
the  accident,  went  to  the  front  end,  and  the 
plaintiff,  then  attempting  to  cross,  was  in- 
jured. Held,  evidence  of  negligence  to  go 
to  the  jury.  Levoy  v.  Midland  N.  Co.,  15 
Am.  &*  Eng.  R.  Cas.  478,  3  On/.  623.— 
Quoting  Stokes  v.  Eastern  Counties  R. 
Co.,  2  F.  &  F.  691. 

3.   Mixed  Questions  of  Law  and  Fact. 

75.  Relative  functions  of  court 
nu.d  jury.— The  question  of  negligence  is 
a  mixed  question  of  law  and  fact,  including 
two  questions :  (t)  Whether  a  particular  act 
has  been  performed  or  omitted,  and  (2) 
whether  the  performance  or  omission  of 
this  act  was  the  breach  of  a  legal  duty.  The 
first  of  these  is  a  pure  question  of  fact,  the 
second  a  pure  question  of  law.  Baltimore 
&>  O.  R.  Co.  V.  McKenzie,  24  Am,  (S>»  Eng. 
R.  Cas.  395.  81  Va.  71.  Chicago  &*  A.  R. 
Co.  V.  Dillon,  17  ///.  App.  355. 

When  the  facts  are  not  disputed,  and  the 
deductions  or  Inferences  to  be  drawn  from 
them  are  indisputable,  or  when  the  stand- 
ard and  measure  of  duty  are  fixed  and  de- 
fined by  law,  and  the  same  under  all  circum- 
stances, the  question  is  for  the  decision  of 
the  court;  but  if  the  facts  are  disputed,  or, 
if  not  disputed,  if  the  existence  of  negli- 
gence  is  an  inference  which,  as  mere  matter 
of  discretion  and  judgment,  may  or  may  not 
be  drawn  from  them,  the  question  must  be 
submitted  to  the  jury.  Alabama  G.  S.  R. 
Cc.  V.  /ones,  1 5  Am.  &»  Eng.  R.  Cas.  549, 
71  Ala.  487.— Following  Memphis  &  C. 


R.  Co.  V.  Lyon,  62  Ala.  71.— Wilson  v. 
Louisville  &*  N.  R.  Co.,  85  Ala.  269.  4  So. 
Rep.  701.  Mau  v.  Morse,  3  Colo.  App.  359. 
Nolan  V.  Neiv  York,  A'.  H.  &^  H.  R.  Co.,  25 
Am.  (S-  Eng.  R.  Cas.  342,  53  Conn.  461,  4 
At  I.  Rep.  10(3.  Gaggv.  Fetter,  41  Ind.  228. 
Chicago  &•  E,  /.  R,  Co.  v.  Ostrandcr,  32  Am. 
&*  Eng.  R.  Cas,  361,  116  /nd.  259,  12  M'est 
Rep.  718,  I  <i  N.  E.  Rep.  227.  19  A^.  E.  Rep. 
1 10.  Greenleaf  v.  Illinois  C.  R.  Co.,  29  Imva 
14.— Reviewing  Todd  v.  Old  Colony  &  F. 
R.  R.  Co.,  3  Allen  (Mass.)  22.  —  FoL- 
LOWEU  IN  Greenleaf  v.  Dubuque  &  S, 
C.  R.  Co.,  33  Iowa  52.  —  Greenleaf  v. 
Dubuque  «S~«  S.  C.  R.  Co.,  33  Iowa  52. — Fol- 
lowing Greenleaf  v.  Illinois  C.  R.  Co., 
29  Iowa  14.— Louisville  &»  P.  Canal  Co.  v. 
Murphy,  9  Bush  (A/.)  522. — Reviewed  in 
Louisville,  C.  &  L.  R.  Co.  v.  Case,  9  Bush 
728.— A'eedham  v.  Louisville  &•  N.  R.  Co., 
85  Ky.  423.  3  S.  W.  Rep.  797.  n  S.  IV.  Rep. 
306.  —  Quoting  Louisville  &  N.  R.  Co. 
V.  Collins,  2  Duv.  115;  Louisville,  C.  &  L. 
R.  Co.  V.  Mahony,  7  Bush  237 ;  Claxton  v. 
Lexington  &  B.  S.  R.  Co.,  13  Bush  642. — 
Newport  A'eivs  &*  M.  V.  Co.  v.  Dent  eel,  91 
Ky.  42,  14  5.  W.  Rep.  958.  Lake  Shore  &» 
M.  S.  R.  Co.  v.  Miller,  25  Mich.  274,  5  Am. 
Ry.  Rep.  478.— Distinguishing  Detroit  & 
M.  R.  Co.  V.  Van  Steinburg,  17  Mich.  99. 
Reviewing  Ernst  v.  Hudson  River  R.  Co., 
35  N.  Y.  g.— Minor  v.  Clark,  5  5/77'.  Sup. 
Ct.  358,  28  N.  Y.  S.  R.  184,  8  A^.  Y.  Supp. 
616.  Jenkins  v.  Little  Miami  R.  Co.,  2 
Disney  (Ohio)  49.  Dun  v.  Seaboard  &^  R. 
R.  Co..  16  Am.  6-  Eng.  R.  Cas.  363.  78  Va. 
645,  49  Am,  Rep.  388.  Nash  v.  Richmond 
6-  F.  R.  Co.,  82  Va.  55.  Johnson  v.  Balti- 
more &>  O.  R.  Co.,  25  IV.  Va.  570.— Quot- 
ing Washington  v.  Baltimore  &  O.  R.  Co., 
17  W.  Va.  190.— Pool  V.  Chicago,  M.  &*  St. 
P.  R.  Co.,  8  Am.  <S-  Eng.  R.  Cas.  360.  56 
tVis.  227,  14  A^.  IV.  Rep.  46.  Hogan  v. 
Chicago,  M.  &-  St.  P.  R.  Co.,  15  Am.  &* 
Eng,  R.  Cas.  439,  59  Wis.  139,  17  A^.  W. 
Rep.  632. 

It  is  the  duty  of  the  jury  to  determine 
whether  negligence  exists  in  a  given  case ; 
but  it  is  the  duty  of  the  court  first  to  deter- 
mine whether  there  is  sufficient  evidence  to 
justify  a  submission  to  the  jury,  and  a  mere 
scintilla  of  evidence  will  not  justify  such 
submission.  Powers  v.  Netv  York  C.  6-  H. 
R.  R.  Co.,\\  N.  Y.  Supp.  408,  60  Hun  19,  38 
N.  Y.  S.  .A".  558 ;  affirmed  in  128  A^.  Y.  659, 
mem.,  29  A'.  E.  Rep.  148,  mem.,  40 N.  Y.  S. 
R.  979,  mem.  —  Quoting  Baulec  v.  New 


814 


NEGLIGENCE,  70,  77. 


I! 


..Hi 


York  &  H.  R.  Co.,  59  N.  Y.  356;  Toomcy 
V.  London.  B.  &  S.  C.  R.  Co..  3  C.  B.  N.  S. 
146.  — Uh ton  /'<ic.  A'.  Co,  V.  A'o///>is,  5  A'an. 
167.  Latrcmoiiilk  v.  liennington  iS-  li.  A'. 
Co.,  48  W/«.  <^  Eng.  R.  Cits.  265,  63  n. 
336,  22  ////.  A'efi.  656.  Quihell  v.  f/«/tf«  /'<!<:. 
yv'.  Co.,  7  £//«//  122,  25  /\ir.  A'»/.  734. 
Metropolitan  R.  Co.  v.  Jackson,  I..  R.  3 
.,4//.  Gw.  193,  »,,  L.J.  C.  P.  303,  37  L.  T. 
679,  26  /f.  A'.  175;  reversinii  L.  R.  10  C.  P. 
49  /..  R.  2  C.  P.  D.  125,  46  L.J.  C.  P.  376. 
36  Z,.  r.  485,  25  rr.  A'.  661. 

Where  the  negligence  charged  is  a  failure 
to  perform  a  statutory  duty,  the  only  ques- 
tion for  the  jury  is  whether  there  has  been 
such  failure;  and  when  the  jury  finds  that 
there  has  been  a  failure,  negligence  must  be 
declared  by  the  court.  ^SV.  Louis,  A.  &*  T. 
H.  R.  Co.  V.  Hiiggins,  20  ///.  App.  639. 

It  is  not  reversible  error  to  submit  the 
question  of  negligence  to  the  jury  when 
the  facts  are  undisputed,  if  the  jury  decides 
the  law  correctly.  Besides,  there  is  no  ab- 
solute rule  as  to  what  constitutes  negli- 
gence. When  the  question  involves  both 
law  and  facts,  it  should  be  left  to  the  jury. 
Patten  v.  Chicago  (S-  A'.  W.  R.  Co.,  32  Wis. 
524.— Reviewed  in  Duflfy  v.  Chicago  &  N. 
W.  R.  Co..  34  Wis.  188. 

70.  The  question  is  for  the  Jury 
subject  to  instructions  as  to  tlie 
law.  —  Where  the  facts  and  inferences 
therefrom  are  not  disputed,  the  question  of 
negligence  is  one 'of  law;  but  where  the 
facts  are  disputed,  the  question  is  one  of 
mixed  law  and  fact,  to  be  submitted  to  the 
jury  under  instructions  from  the  court. 
Pittsburgh,  C.  «S-  St.  L.  R.  Co.  v.  Spencer, 
2!  Am.  &*  Eng.  R.  Cas.  478,  98  Ind.  186. 
Terre  Haute  &*  I.  R.  Co.  v.  Jenuine,  16  ///. 
App.  209.  Memphis  &•  C.  R.  Co.  v.  Whit- 
field, 44  Miss.  466.  Smith  v.  North  Carolina 
R.  Co.,  64  N.  Car.  235.— Applied  in  Wal- 
lace V.  Western  N.  C.  R.  Co.,  98  N.  Car. 
494.  Quoted  in  Emry  v.  Raleigh  &  G.  R. 
Co.,  109  N.  Car.  t,i<).— Pittsburgh.  C.  &-  St. 
L.  R.  Co.  V.  Fleming,  30  Ohio  St.  480. 
Cleveland,  C.  &»  C.  R.  Co.  v.  Crawford,  24 
Ohio  St.  631,  7  Am.  Ry.  Rep.  172.  Penn- 
sylvania Co.  V.  Rathgeb,  32  Ohio  St.  66. 
Baltimore  &*  O.  R.  Co.  v.  Wheeling,  P. 
6-  C.  Transp.  Co.,  32  Ohio  St.  1 16.  Bam- 
berg v.  South  Carolina  R.  Co.,  9  So.  Car. 
61.  Bowers  v.  Union  Pac.  R.  Co.,  4  Utah 
215.  7  Pac.  Rep.  251.  East  Tenn.,  V.  &• 
G.  R.  Co.  V.  Fain,  19  Am.  &•  Eng.  R.  Cas. 
102,  12  Lea  (Tenn.)  35.     Trow  v.  Vermont 


C.  R.  Co.,  24  Vt.  487.      Langhojff  v.  Mil-  , 
waukee  &*  P.  du  C.  R.  Co.,   19  Wis.  489.— 
Followed  in  Sioux  City  &  P.  R.  Co.  v. 
Stout,  17  Wall.  (U.  S.)657. 

Whether  it  is  negligence  for  an  engineer 
to  run  his  train  at  a  stated  number  of  miles 
per  hour  is  generally  a  mixed  question  of 
law  and  fact,  dependent  upon  many  con- 
trolling circumstances,  such  as  the  condi- 
tion and  structure  of  the  road,  its  grade, 
straightness  or  curvature,  the  character  and 
capacity  of  the  brakes,  etc;  and  when  there 
is  no  evidence  as  to  any  of  tliese  controlling 
facts,  it  is  properly  left  to  the  jury  to  decide 
whether  he  was  guilty  of  negligence  in  run- 
ning his  train  at  the  rate  of  thirty-five  or 
forty  miles  per  hour  at  the  time  of  the  acci- 
dent. East  Tenn.,  V.  <S-  G.  R.  Co,  v.  Bay- 
liss,  19  Atn.  &*  Eng.  R.  Cas.  480,  74  Ala.  1 50. 

77.  What  the  Jury  should  bo  told 
to  consider. — The  question  of  negligence 
is  a  mixed  one  of  law  and  fact,  in  the  de- 
termination of  which  it  is  to  be  considered 
whether  an  act  has  been  done  or  omitted, 
and  also  whether  the  doing  or  omission  of 
it  was  a  breach  of  legal  duty.  Little  Rock 
<S-  Ft.  S.  R.  Co.  v.  Dujey,  4  Am.  (J-  Eng.  R. 
Cas.  637,  35  Ark.  602. 

In  decidmg  whether  any  party  has  been 
negligent,  if  there  is  any  conflict  in  the  tes- 
timony, and  ordinarily  when  there  is  not,  all 
the  facts  and  circumstances  of  the  case 
should  be  submitted  to  the  jury  with  in- 
structions that,  in  deciding  whether  the 
party  was  in  the  exercise  of  ordinary  care, 
or  was  grossly  negligent,  they  are  to  con- 
sider the  position  of  the  party,  his  busines 
his  duties  and  responsibilities,  and  that  th^ 
same  act  or  omission  which  under  some 
circumstances  would  not  show  any  degree 
of  negligence  might  under  others  show 
want  of  ordinary  care,  and  under  still  dif- 
ferent circumstances  might  show  gross  neg- 
ligence ;  and  the  question  should  be  settled 
by  the  jury  as  a  question  of  fact,  not  by  tiie 
court  as  a  question  of  law.  State  v.  Man- 
chester &•  L.  R.  Co.,  52  A^.  H.  528. 

If  the  evidence  upon  an  issue  of  negli- 
gence isdirect,  leaving  nothing  to  inference, 
and,  if  believed,  establishes  the  fact  sought 
to  be  proved,  the  judge  may  instruct  che 
jury  that  if  they  believe  the  witness  they 
are  to  find  for  the  plaintifT  or  defendant,  as 
the  case  may  be  ;  but  where  the  testimony 
is  in  conflict  and  capable  of  different  inter- 
pretations, it  should  be  submitted  to  the 
jury  with  appropriate  instructions  to  con- 


^■^ 


NEGLIGENCE,  78-81. 


815 


V.  Mil- 
489.- 
Co.  V, 


sidcr  all  the  circumstances  in  arriving  at  a 
verdict.  McQuay  v.  Nichmond  &•  D.  A'.  Co., 
109  JV,  Car.  585,  13  .S".  /•;.  /iV/.  944. 

78.  Binding  iiiHtriictiuiiN.  —  What 
constitutes  nc(;hgence  usually  is  a  mixed 
question  of  law  and  fact,  and  sometimes 
negligence  is  of  a  character  so  gross  on  the 
part  of  a  plaintiff  that  a  judge  may  well  in- 
struct a  jury  that  he  is  not  entitled  to  re- 
cover. A/t//s  v.  Orange,  A.  &-  M,  R.  Co.,  2 
AfacArth.  (D.  C)  314. 

III.  ACTIONS  FOB  KEOLIOENCE. 

I.  Kight  of  Action — Parties — Defenses. 

70.  The  rlglit  of  action.*— An  injury 
that  is  the  natural  and  probable  consequence 
of  an  act  of  negligence  is  actionable.  Ciii- 
cago,  St.  P.,  At.  (S-  O.  A'.  Co.  v.  E//ioti,  55 
/>(/.  A'ep.  949,  12  I/.  .V.  Afi/i.  381.  5  C.  C.  A. 
347.— Quoted  in  Union  Pac.  R.  Co.  v. 
Callaghan,  56  Fed.  Rep.  988. 

Where  the  party  inflicting  the  injury,  by 
proper  care,  might  have  avoided  the  conse- 
quences of  the  negligence  of  the  party  in- 
jured, or  where  the  latter  could  not  avoid 
the  c  nsequences  of  the  former's  negligence, 
an  action  will  lie.  Northern  C.  R.  Co.  v. 
State,  31  Md  357. 

A  plaintiff  who,  by  reason  of  his  and  the 
defendant's  negligence,  has  been  compelled 
to  pay  damages  to  another  may  recover  in- 
demnity, although  but  for  his  own  negli- 
gence the  injury  would  not  have  happened, 
if  at  the  time  it  occurred  he  could  not,  and 
the  defendant  could,  have  prevented  it  by 
ordinary  care.  Nashua  I.  &*  S.  Co.  v. 
Worcester  &*  N.  R.  Co.,  62  A^.  H.  159. 

Every  person  who  violates  an  express 
statute  is  a  wrong-doer,  and  as  such  is  ex 
necessitate  negligent,  and  if  he  has  done  the 
wrong  with  respect  to  an  innocent  person 
the  latter  is  his  remedy  for  full  indemnity. 
Graham  \ .  Delaware  &*  H.  Canal  Co.,  46 
Hun  386,  12  A^.  Y.  S.  R.  390. 

Bare  negligence  unproductive  of  damage 
to  another  will  not  give  a  right  of  action ; 
negliger  I-  causing  damage  will  do  so.  Gulf, 
C.  <S>»  S.  .  R,  Co.  V.  Levy,  12  Am.  &*  Eng. 
R.  Cas.  90,  96,  59  Tex.  542,  46  Am.  Rep.  269. 
—Reviewing  New  Orleans.  J.  &  G.  N.  R. 
Co.  V.  Hurst,  36  Miss.  667. 

Where,  in  an  action  against  a  railroad 
company  for  injuries  received  by  the  plain- 
tifl  from  the  alleged  carelessness  of  one  of 

*  Liability  for  injuries  caused  by  negligence, 
tee  note,  8  L.  R.  A.  83. 


the  defendant's  employes,  the  evidence  dis- 
closes no  omission  of  duty  or  wrongful  act 
on  the  part  of  the  servant  whereby  such  in- 
juries resulted,  the  company  cannot  be  held 
liable,  the  plaintiff  alone  being  in  fault. 
Chicago  &»  A.  R.  Co.  v.  AlcLaughlin,  47  ///. 
265. 

The  fact  that  the  plaintiff  was  hurt  with- 
out his  own  fault  or  negligence  does  not  of 
itself  entitle  him  to  recover,  as  it  must  fur- 
ther appear  that  the  defendant  is  legally 
chargeable  with  the  injury.  Henry  v.  Lake 
Shore  <**  At.  S.  R.  Co.,  8  Am.  &*  Eng.  R.  Cas. 
1 10.  49  Afich.  495, 13  A^.  IV.  Rep.  832. 

No  action  can  be  maintained  for  injuries 
resulting  to  individuals  from  acts  done  by 
persons  in  the  execution  of  a  public  trust 
and  for  the  public  benefit,  acting  with  due 
skill  and  caution,  and  within  the  scope  of 
their  authority;  but  this  principle  does  not 
apply  to  a  private  corporation  authorized  by 
the  legislature  to  construct  works  of  public 
improvement  by  private  capital  for  private 
emolument.  Tinsman  v.  Pelvidere  Del.  R. 
Co..  26  A^.  /.  L.  148.— Distinguished  in 
Eaton  V.  Boston,  C.  &  M.  R.  Co.,  51  N.  H. 
504.  Quoted  in  McAndrews  v.  Collerd, 
42  N.  J.  L.  189. 

80.  Who  may  sue.— Where  an  act  of 
negligence  is  eminently  dangerous,  the  neg- 
ligent party  is  liable  to  any  person  who  is 
injured  thereby  whether  any  privity  exists 
between  them  or  not ;  but  where  the  act  is 
not  eminently  dangerous,  the  negligent  party 
is  only  liable  to  parties  with  whom  he  sus- 
tains some  contract  relation.  Burke  v.  De- 
Castro  &*  D,  Sugar  Refining  Co.,  1 1  Hun  (N 

V.)  354. 

81.  Who  is  liable  and  may  be  made 
defendant. — Where  a  person  is  bound  to 
perform  an  act  as  a  duty,  he  intrusts  its 
performance  to  another  at  his  peril,  and 
upon  failure  of  such  person  to  perform  it, 
whether  he  stood  in  the  relation  of  con- 
tractor or  of  servant,  the  person  on  whom 
the  duty  rests  is  liable  for  such  failure  or 
neglect.  Houston  &*  G.  N.  R.  Co.  v.  Afea- 
dor,  50  Tex.  77.— Distinguished  in  At- 
lanta &  F.  R.  Co.  V.  Kimberly,  87  Ga.  161. 
Quoted  in  Cunningham  ?/.  International 
R.  Co.,  51  Tex.  503. 

Artificial,  like  natural,  persons  arc  liable 
in  damages  for  acts  of  negligence  imputable 
to  them  whereby  injuries  result  to  third 
persons.  A  corporation  acts  through  its 
officers  and  employes,  who,  in  the  exercise 
of  their  respective  functions,  and  to  that 


& 


816 


NEGLIGENCE,  82-84. 


|l    ■?■ 


;     *>.: 


1  '  ■ 


■i 


extent,  represent  the  corporation.  Denver, 
S.  F.  &•  P.  R.  Co.  V.  Conway,  8  Colo,  i ,  54 
Am.  Rep.  537,  5  /^<ii-.  Rep.  142. 

When  injury  results  from  the  negligence 
or  unlawful  operation  of  a  railroad,  whether 
by  the  corporation  to  which  tiic  franchise 
is  granted,  or  by  anotiier  coporation,  or  by 
individuals  whom  tlie  owner  authorizes  or 
permits  to  use  its  tracks,  the  company  own- 
ing the  railway  and  franchise  will  be  liable. 
Pennsylvania  Co.  v.  Ellett,  42  Am.  <&«•  Eng. 
R.  Cas.  64,  132  ///.  654,  24  A'.  E.  Rep.  559. 

There  is  no  good  reason  why  a  company 
operating  trains  upon  a  road  owned  by  an- 
other company  should  not  be  liable  for 
negligence  in  running  its  trains.  The  pro- 
tection of  the  public  requires  that  such 
company  should  be  liable  the  same  as  the 
one  that  owns  the  road.  Leonard  v.  New 
York  C.  <&-  H.  R.  R.  Co.,  10/.  &*  S.  (N.  Y.) 
225.— Following  McGrath  v.  New  York 
C.  &  H.  R.  R.  Co.,  63  N.  Y.  522.— Fol- 
lowed IN  Leonard  v.  New  York  C.  &  H. 
R.  R.  Co.,  12  J.  &  S.  575. 

Defendants  will  be  liable  for  any  injury 
sustained  by  third  persons  in  consequence 
of  negligence  in  drifting  a  raft,  where  it  is 
shown  that  they  had  purchased  and  paid  for 
tlie  raft,  and  that  it  had  been  delivered  to 
their  agent.  Nor  will  proof  that  theiragent 
took  upon  himself  the  risk  of  its  safe  trans- 
portation exonerate  them  as  owners  from 
liability  to  third  persons.  Taylor  v.  Mexi- 
can Gulf  R.  Co.,  2  La.  Ann.  654. 

Plaintiff  was  injured  by  the  breaking  of 
the  rope  of  a  derrick  while  assisting  in 
discharging  ore  from  his  boat  to  the  de- 
fendant's cars.  It  did  not  appear  that  the 
derricks  were  used  for  defendant's  benefit, 
that  its  officers  had  any  control  over  them, 
or  that  it  furnished  the  rope.  It  appeared 
that  for  a  long  time  the  derrick  was  under 
the  control  of  M.  &  Co.,  who  employed  the 
men  who  discharged  the  cargo.  Held,  that 
defendant  was  not  liable.  Derrenbacher  v. 
Lehigh  Valley  R.  Co.,  4  Am.&*Eng.  R.  Cas. 
624,  ^7  A\  Y.  636,  mem.  ;  reversing  21  Hun 
612,  59  How.  Pr.  283. —Distinguishing 
King  v.  New  York  C.  &  H.  R.  R.  Co..  72  N. 
Y.  607,  mem. 

82.  Joint  and  sevcrnl  liability.— 
Where  the  negligence  of  two  is  in  combina- 
tion the  proximate  cause  of  an  injury, 
either  or  both  may  be  held  responsible  for 
the  consequences  resulting  from  their  com- 
bined negligence.  Pullman  Palace  Car  Co. 
V.  Laack,  143  ///.  343,  33  N.  E.  Rep.  385.— 


Applying  Wabash.  St.  L.  &  P.  R.  Co.  v. 
Shacklet.  105  111.  364;  Union  R.  &  T.  Co. 
V.  Shacklet,  119  111.  232.  —  Quill  v.  New 
York  C.  (3-  H.  R.  R.  Co.,  16  Daly  313,  32 
A';  Y.  S.  R.  fi\2,\\N.  Y.  Supp.  80 ;  affirmed 
in  126  A'.  Y.  629.  mem.,  36  N.  Y.  S.  R.  1012. 
;;/^;«.— Approving  Booth  v.  Boston  -%  A.  R. 
Co.,  73  N.  Y.  38;  Webster  V.  Hudson  River 
R.  Co.,  38  N.  Y.  260. — Schmidt  v.  Steinway 
&'  H.  P.  R.  Cc'..  55  Hun  496,  29  A'.  Y.  S.  R. 
201.  8  A'.  Y.  Supp.  664,  9  N.  Y.  Supp.  939. 
— Applying  Colegrove  v.  New  York  &  N. 
H.  R.  Co..  20  N.  Y.  ^^2.— Boss  v.  Northern 
Pac.  R.  Co.,  2  A^.  Dak.  128.  49  A^.  W.  Rep. 
655. —Approving  Delaware.  L.  &  W.  R. 
Co.  V.  Salmon.  39  N.  J.  L.  299. 

While  joint  tort  feasors  are  severally  lia- 
ble for  the  injuries  inflicted,  yet  to  hold 
them  jointly  liable  they  eith  ..  must  have 
acted  in  concert  or  the  act  of  one  must  have 
been  of  such  a  character  as  to  have  naturally 
resulted  in  causing  the  act  of  the  other. 
Stanley  v.  Union  Depot  R.  Co.,  114  Mo.  606, 
21  5.  W.  Rep.  832. 

Persons  who  act  separately,  each  causing 
a  separate  injury,  cannot  be  made  jointly 
liable,  even  though  the  injuries  thus  com- 
mitted are  all  inflicted  at  one  time,  and  pre- 
cisely similar  in  character.  Mooney  v.  Third 
Ave.  R.  Co.,  2  City  Ct.  (N.  Y.)  366. -Quot- 
ing Marble  v  Worcester.  4  Gray  (Mass.) 

395- 

Where  two  companies  operate  parallel 
roads,  but  there  is  no  connection  between 
them  in  the  ownership  or  use  of  the  respec- 
tive tracks,  they  cannot  be  made  jointly 
liable  because  their  flagmen  each  watched 
the  movements  of  the  other,  which  brought 
about  an  accident  Chicago  &*  E.  I.  R.  Co. 
V.  Conners,  30  ///.  App.  307. 

83.  Joinder  of  defendantM.— If  an 
injury  is  caused  by  the  combined  acts  of 
negligence  of  two  corporations,  a  joint  ac- 
tion may  be  maintained  for  the  entire  in- 
jury against  both.  Bryant  v.  Bigelow  Car- 
pet  Co.,  7  Am.  &*  Eng.  R.  Cas.  72, 131  Mass. 
491.  Starts  V.  Pennsylvania  &*  N.  Y.  C. 
<S-  R.  Co.,  42  A'.  Y.  S.  R.  457, 16  A'.  Y.  Supp. 
810;  affirmed  in  136  A'.  Y.  639.  mem.,  32 
A^.  E.  Rep.  1014,  mem.,  49  A^.  Y.  S.  R.  914, 
mem. 

84.  Defenses,  generally.— If  a  de- 
fendant, having  acquired  by  contract  with 
plaintiff  the  right  to  the  possession  and  use 
of  a  side  track  for  its  own  purposes,  em- 
ploys a  third  person  to  unload  its  cars,  and 
the  injury  is  caused  by  tlie  negligence  of 


rfi^^^!\ 


NEGLIGENCE,  84. 


817 


such  third  person  or  his  servants  in  tlie 
performance  of  the  work,  this  does  not  re- 
lieve the  defendant  of  Uability.  Montgomery 
Gasl.tght  Co.  V.  Montgomery  &*  E.  A*.  Co., 
86  Ala.  372.  5  So.  h\/>.  735. 

When  tlie  evidence  sliows  negligence 
gross  and  reckless  on  the  part  of  a  railroad, 
resulting  in  serious  injury  to  plain^Irt,  proof 
that  plaintiff,  while  under  the  influence  of 
great  pain  and  his  mind  coiifused,  if  not  un- 
settled, by  the  injury,  said  that  no  one  was 
to  blame  will  not  excuse  the  company. 
Even  if  the  declaration  was  made  delib- 
erately and  the  whole  evidence  shows  that 
pia.wtifl  was  mistaken,  ii  will  not  relieve  tiie 
company.  Chicago  &*  A.  K.  Co.  v.  IVilson, 
63  ///.  167. 

Notwithstanding  liie  negligence  of  an  in- 
jured party,  a  defendant  company  is  liable 
for  injuring  him  if  ordinary  care  was  not 
exercised  by  its  employes  after  they  knew 
(if  such  negligence ;  and  the  fact  that  the 
injured  party's  foot  was  caught  between  the 
rails  so  that  he  could  not  get  of!  the  track 
would  not  afTect  the  company's  liability  if 
its  cars  were  negligently  run  on  him  after 
his  position  was  known.  Beemsv.  Chicago, 
R.  I.  S^P.  A".  Co.,  10  Aw.  (S-  Eng.  A\  Cas. 
658,6  Am.  <S-  Eng.  A'.  Cas.  222,  58  foTva  150, 
12  N.  W.  Hep,  222. 

The  fact  that  the  accident  was  one  of  fre- 
quent occurrence  on  railroads  affords  no 
excuse,  but,  on  the  contrary,  demands  addi- 
tional care  and  foresight  to  guard  against  it. 
Oliver  v.  Ne^v  York  &*  E.  R.  Co.,  i  Edin, 
Sel.  Cas.  (N.  V.)  589. 

One  who  is  injured  by  the  negligence  of 
another  is  bound  to  use  ordinary  care  to 
effect  his  cure  and  restoration  ;  but  he  is 
not  responsible  for  a  mistake,  and  when  he 
acts  in  good  faith  and  under  the  advice  of  a 
competent  physician,  even  if  it  is  erroneous, 
the  error  will  not  shield  the  wrong-doer. 
Lyons  v.  Erie  R.  Co.,  57  N.  V.  489.  7  Am. 
Ry.  Rep.  63.— Followed  in  Sauter  v.  New 
York  C.  &  H.  R.  R.  Co .  66  N.  Y.  50.  23 
Am.  Rep.  18. 

Therefore  where,  in  an  action  to  recover 
damages  for  injuries  alleged  to  have  been 
sustained  by  defendant's  negligence,  defend- 
ant had  given  evidence  tending  to  show 
that  exercise  taken  by  plaintiff  might  have 
tended  to  retard  recovery,  and  that  quiet 
would  have  been  better— Mil,  that  evidence 
that  plaintiff  was  advised  by  his  physician 
that  it  was  right  and  beneficial  to  exercise 
6  D.  R.  D.— S3 


was  proper.     Lyons  v.  Erie  R.  Co.,  57  N.  Y, 
489,  7  Am.  Ry.  Rep.  63. 

The  fact  that  plaintiff  at  the  time  she  was 
injured  was  picking  up  coals  in  a  street  not 
fully  opened  and  occupied  for  public  travel, 
but  which  had  been  actually  improved  and 
used  to  some  extent,  will  not  prevent  her 
recovery  against  a  railroad  company  for 
negligence.  Pennsylvania  Co.  v.  Allen,  3 
Pennyp.  {Pa.)  170. 

In  an  action  against  a  corporation  to  re- 
cover damages  occasioned  b"  the  negligence 
of  its  employes,  it  is  no  c.  ..ense  to  show 
that  the  act  from  which  the  mjury  resulted 
was  not  authorized  by  the  charter,  if  the 
corporation  in  any  clear  and  explicit  man- 
ner recognized  the  act  as  done  in  its  busi- 
ness, as  by  employing  agents  to  superintend 
it  or  receiving  the  profits  arising  from  it. 
Hutchinson  v.  IVestern  &*  A.  R.  Co. .  6  Heisk. 
(Tenn.)  634,  12  Am.  Ry.  Rep.  16. — QUOTING 
AND  DISTINGUISHING  Pearce  V.  Madison  & 
I.  R.  Co..  21  How.  (U.  S.)  444. — Followed 
IN  New  York,  L.  E.  &  W.  R.  Co.  v.  Haring. 
2!  Am.  &  Eng.  R.  Cas.  436,  47  N.  J.  L.  137. 

The  consent  given  to  the  construction  of 
a  road  does  not  relieve  the  railroad  company 
from  the  duties  touching  inclosures  pre- 
scribed by  the  statute  granting  it  a  right  of 
way.  Houston  &•  G.  N.  R.  Co,^  v.  Meador, 
50  Tex.  77. 

It  is  doubtful  whether  in  any  case  in  which, 
in  the  absence  of  a  contract  expressed  or 
implied,  negligence,  as  an  element,  is  the 
foundation  of  a  right,  custom  may  be  set 
up  for  the  purpose  of  showing  that  negli- 
gence does  or  does  not  exist.  It  would 
seem  that  whether  negligence  did  or  did 
not  exist  must  be  determined  in  the  very 
case  in  which  its  existence  is  charged.  Gulf, 
C.  &*  S.  F.  R.  Co.  V.  Evansich,  61  Tex.  3. 

When  one  by  accident  or  misadventure 
falls  upon  a  railway  track  without  fault  on 
his  part,  and  is  then,  through  the  negligence 
of  the  company's  agents  who  manage  the 
train,  injured,  the  negligence  of  the  com- 
pany is  not  excused.  International  &•  G. 
N.  R.  Co.  V.  Ormond,  27  Am.  <S-  Ei^.  R. 
Cas.  139.  64  Tex.  485. 

The  statute  14  Geo.  III.  c.  78.  §  86.  which 
is  an  extension  of  6  Anne.  c.  31,  g§  6  and  7, 
is  in  force  in  the  province  of  Ontario  as 
part  of  the  law  of  England  introduced  by 
the  Constitutional  Act  31  Geo.  III. c.  31,  but 
has  no  application  to  protect  a  party  from 
legal  liability  as  a  consequence  of  negii- 


818 


NEGLIGENCE,  85-87. 


m 


I 


I  ■' 


"h 
W 


gence.  Canada  Southern  R.  Co.  v.  Phelps, 
35  Am.  &*  Eng.  R.  Cas.  207,  14  Can.  Sup. 
Ct.  132. 

The  court  refused  to  charge  at  defendant's 
request  "  that  proof  had  been  given  that 
the  notice  required  by  the  General  Railroad 
Act  was  posted  in  the  car  in  which  the  acci- 
dent to  plaintiff  happened,  and  that  plaintiff 
w;is  riding  upon  the  front  platform  and  was 
upon  the  step  of  the  car  when  injured." 
Held,  no  error,  as  defendant  had  not 
pleaded  the  facts  which  would  entitle  it  to 
ihe  exetnption  which  it  claims  that  the  act 
in  question  allows.  Weymouth  v.  Broad- 
way  <S-  S.  A.  R.  Co.,  51  ^V.  V.  S.  R.  612,  22 
N.  V.  Supp.  1047,  2  Misc.  506;  affirmed  in 
142  N.  Y.  681,  mem.,  37  N.  E.  Rep.  825,  mem. 

85.  Uiiforeseeu  or  inevitable  aeci- 
ileiit. — A  company  is  not  liable  for  an  ac- 
cident which  happens  by  reason  of  a  latent 
defect  in  appliances  used,  and  which  could 
not  have  been  discovered  by  any  degree  of 
skill  or  care.  Anthony  v.  Louisville  Sf 
N.  R.  Co.,  27  Fed.  Rep.  724. 

Where  an  unforeseen  event  concurrent  in 
point  of  time  with  an  act  of  negligence  co- 
operates with  the  latter  to  produce  an  in- 
jury, it  will  not  excuse  the  negligence.  Mc- 
Dermott  v.  Hannibal  <S-  St.  J.  R.  Co.,  28 
Am.  &*  Eng.  R.  Cas.  528,  87  Afo.  285. 

.\  company  cannot  excuse  itself  as  for  in- 
evitable accident  by  showing  that  the  cars 
were  thrown  off  the  track  by  accidentally 
running  over  a  man,  if  it  also  appears  that  the 
man  was  a  drover  attending  to  cattle  on  the 
train,  and  that  he  fell  off  because  no  proper 
place  was  provided  for  such  attendants,  and 
he  was  compelled  to  stand  on  the  bumpers, 
and  this,  though  the  man  fell  off  by  his  own 
carelessness,  the  company  having  no  right 
to  put  him  in  such  a  position.  Goldey  v. 
Pennsylvania  R.  Co.,  30  Pa.  St.  242. 

80.  Coiiciirrciit  iicglijjreiico  of  an- 
other.— If  an  accident  occurs  from  two 
causes,  both  due  to  negligence  of  different 
persons,  but  together  the  efficient  cause, 
then  all  the  persons  whose  acts  contribute 
to  the  accident  are  liable  for  an  injury  re- 
sulting, and  the  negligence  of  one  furnishes 
no  excuse  for  the  negligence  of  the  other. 
Gtd/,  C.  &•  S.  F.  R.  Co.  V.  Ate  Whirter,  77 
Tex.  356.  14  S.  W.  Rep.  26.  Louisville,  N. 
A.  &»  C.  R.  Co.  V.  Lucas,  119  Ind.  583,  21 
A'.  E.  Rep.  968.  Atkinson  v.  Goodrich 
Transp.Co.,(yo  Wis.  141,  18  A'.  W.  Rep.  764. 

If  a  result  happens  jointly  from  two 
causes,  and  the  defendant  is  chargeable  with 


one  of  the  causes,  but  not  with  the  other,  he 
is  not  liable  for  an  injury  which  results,  if  it 
would  have  occurred  without  the  cause  for 
which  he  is  liable.  Alurtaitghv.  New  York 
C.  <S>.  H.  R.  R.  Co.,  49  Hun  (N.  Y. )  456.— 
Quoting  Ring  v.  Cohoes,  yj  N.  Y.  83. 
Reviewing  Cone  v.  Delaware,  L.  &  W.  R, 
Co.,  81  N.  Y.  206;  Searles  v.  Manhattan  R. 
Co.,  101  N.  Y.  661. 

2.  Pleading. 

87.  Neg:ligeiice  niu8t  be  averred.— 

In  all  common  law  actions  the  basis  of 
which  is  the  negligence  of  the  defendant, 
negligence  or  its  equivalent  must  be  directly 
averred,  or  such  facts  must  be  stated  that 
a  prima  facie  presumption  of  negligence 
arises.  Pennsylvania  Co.  v.  Alarion,  27 
Am.  &^  Eng.  R.  Cas.  132,  104  /nd.  239,  3  A^. 
^■./vV/.  874.— Distinguished  in  Hammond 
V.  Schweitzer,  112  Ind.  246,  11  West  Rep. 
661,  13  N.  E.  Rep.  869. 

The  complaint  must  not  only  charge  the 
defendant  with  the  negligent  acts,  whether 
of  omission  or  commission,  but  must  also 
show,  with  reasonable  certainty,  that  such 
acts  were  the  direct  or  proximate  cause  of 
the  injury.  Pittsburgh.  C.  &*  St.  L.  R.  Co. 
V.  Conn,  104  Ind.  64,  3  A^.  E,  Rep.  636. 

A  declaration  in  an  action  for  injury  sus- 
tained by  plaintiff  through  the  negligence  of 
the  defendant  which  does  not  show  that 
the  negligence  contributed  in  some  degree 
to  the  injury  complained  of  is  bad  on  de- 
murrer. AfcGanahan  v.  East  St.  Louis  &* 
C.  R.  Co..  72  ///.  557. 

A  complaint  to  recover  damages  for  an 
injury  siiould  proceed  upon  a  definite  theory, 
either  for  a  wilful  injury  or  for  one  caused  by 
negligence,  and  it  will  be  judged  from  its 
general  scope  and  tenor.  Gregory  v.  Cleve- 
land, C,  C.  «S-  /.  R.  Co.,  J I  Am.  &*  Eng.  R. 
Cas.  440,  112  Ind.  385,  14  A^.  E.  Rep.  228. 

The  question  of  negligence  and  its  degree 
must  depend  generally  upon  the  facts  of  th* 
case,  and  if  it  consists  of  an  omission  to 
perform  a  duty  which  devolves  on  the  person 
charged  with  negligence,  it  must  be  consid- 
ered with  reference  to  the  character  of  busi- 
ness in  which  such  person  is  engaged.  It  is 
not  necessary  to  allege  that  certain  facts 
pleaded  constitute  negligence  if  the  con- 
clusion of  negligence  may  be  drawn  from 
them.  San  Antonio  St.  R.  Co.  v.  Cailloutte, 
79  7'e.r.  341.  15  .s;   //'.  Rep.  390 

A  plaintiff  whose  demand  is  based  upon 
tlie  nculigence  of  the  defendant  must  sue 


,,yf.m 


NEGLIGENCE,  88,  89. 


819 


upon  the  negligence.  He  cannot  allege 
an  implied  contract  to  pay  damages  for  the 
negligence.  Krause  v.  Pennsylvania  li.  Co., 
\c,P/ttla.  (/'<!.)  436. 

In  an  action  to  recover  damages  against  a 
railway  company  for  injuries  resulting  from 
its  failure  to  construct  its  road  as  required 
by  Tex.  Rev.  St.  art.  41 71,  negligence  and 
want  of  skill  in  its  construction  need  not  be 
alleged  in  tolidem  verbis,  if  the  petition  con- 
lain  distinct  averments  from  which  the  de- 
duction would  necessarily  follow  that  such 
negligence  or  want  of  skill  existed.  Sabine 
<j^  E.  T.  K.  Co.  V.  Hadnot,  30  Am.  dr*  Ettg, 
R.  Cas.  197.  67  ZV.r.  503.  4  5.   W.  Rep.  138. 

88.  What  is  a  Hufllcient  allegation 
«f  iiegligeiic'c. — A  complaint  in  an  action 
for  negligence  which  alleges  facts  sufficient 
to  show  negligence  on  the  part  of  the  de- 
fendant, and  avers  that  there  was  no  con- 
tributory negligence  on  the  part  of  the 
phiintifl,  is  sufficient  unless  it  affirmatively 
appears,  notwithstanding  these  allegations, 
tiiat  tliere  was  an  absence  of  negligence  on 
tile  defendant's  part,  or  the  presence  of 
i)c<;ligence  on  the  part  of  the  plaintiff. 
I.oiiis'i'ille,  N.  A.&'  C,  R.  Co.M.Stommel,  126 
Iiitt.  35.  25  A^.  E.  Rep.  863. 

.\  petition  charging  negligence  in  a  rail- 
road company  in  conducting  and  running  its 
train,  where  the  negligence  complained  of  is 
that  of  the  engineer  in  managing  it  at  ti-^ 
time  of  the  casualty,  is  sufficiently  specift-^. 
Kll.t  v.  St.  Louis,  K.  C.  6-  A^.  R.  Co.,  12 
A'n.  3-  AV{f.  R.  Cas.  183,  76  Afo.  518.— FoL- 
I  (iwi.i>  IN  Ely  v.  St.  Louis,  K.  C.  &  N,  R_ 
L.I..  16  Am.  &  Eng.  R.  Cas.  342,  77  Mo.  34. 

.\n  allegation  that  the  plaintiff  was  in- 
jured by  the  defendant's  servants  negligently 
propelling  the  car  in  which  he  was  against 
aiioilier  car  with  great  velocity,  thereby 
throwing  down  upon  him  a  part  of  the 
I'cigiit  in  the  said  car,  is  a  good  allegation 
of  negligence.  C/ay  v.  Chicago  &*  A.  R. 
Co.,  17  Mo.  App.  629. 

An  averment  that  the  injury  complained 
of  was  caused  by  the  negligence  of  "  the  de- 
fendant, its  agents  and  employes,"  is  suffi- 
cient without  specifying  the  particular  agent 
or  employe  guilty  of  the  negligence,  that  be- 
ing a  fact  in  this  case  peculiarly  within  the 
knowledge  of  the  defendant.  Texas  &*  P. 
R.  Co.  V.  Easton,  2  Tex.  Civ.  App.  ^78,  21  S. 
IV.  Rep.  575. 

Where  the  separation  of  a  railway  train 
was  accidental,  a  plaintiff  seeking  to  hold  the 
company  for  injury  done  by  the  detached 


cars,  upon  the  ground  that  a  proper  lookout 
for  persons  upon  the  track  was  not  kept, 
must  aver  that  servants  of  the  company 
were  left  upon  the  detached  cars,  and  had 
time  before  the  accident  to  assume  a  proper 
position  for  observation.  Patton  v.  East 
Tenn.,  V.  &»  C.  R.  Co.,  48  Am.  &*  Eng.  R. 
Cas.  581,  89  Tenn.  370,  155.  IV.  Rep.  919. 

89.  Scttiii;;  out  facts  conHtitiiting 
negligence.— Where  the  action  is  based 
upon  negligence,  it  is  sufficient  if  the  com- 
plaint sets  forth  generally  that  the  accident 
was  the  result  of  defendant's  negligence, 
and  it  is  not  necessary  to  set  out  the  partic- 
ulars constituting  such  negligence.  Clark 
v.  Chicago,  B.  &-  Q.  R.  Co.,  4  McCrary  (U. 
5.)  360,  1 5  Fed.  Rep.  588.  Andrew  v.  Chi- 
cago 6-  A^.  W.  R.  Co.,  45  ///.  App.  269.  St. 
Louis  Sr*  S.  E.  R.  Co.  v.  Mathias,  50  Ind. 
65,  8  Atn.  Ry.  Rep.  381.  Pittsburgh.  C.  <S- 
St.  L.  R.  Co.  V.  Nelson,  5 1  Ind.  1 50.  Louis- 
ville, N.  A.  &>  C.  R.  Co.  V.Jones,  28  Am.  &- 
Eng.  R.  Cas.  170,  108  /nd.  551,  9  ^V.  iE".  Rep. 
476.  Ohio  &*  Af.  R.  Co.  V.  IValAer,  32  Am. 
&•  Eng.  R.  Cas.  121,  113  Ind.  196,  15  A^.  E. 
Rep.  234,  12  West  Rep.  731.  Louisville  &* 
N.  R.  Co.  V.  Wolfe,  80  Ky.  82.  Otto  v.  St. 
Louis,  I.  AI.  <S-  S.  R.  Co.,  12  Mo.  App.  168. 
— Distinguishing  Waldhierv.  Hannibal  & 
St.  J.  R.  Co.,  71  Mo.  514;  Edens  v.  Hanni- 
bal &  St.  J.  R.  Co.,  72  Mo.  212;  Price  v.  St. 
Louis,  K.  C.  &  N.  R.  Co.,  72  Mo.  414.— £•/- 
dridge  v.  Long  Island  R.  Co.,  i  Sandf.  {N. 
Y.)  89.  Contra,  see  Devino  v.  Central  Vt.  R. 
Co.,  63  Vt.  98,  20  Atl.  Rep.  953. 

A  general  allegation  of  negligence,  with- 
out stating  the  acts  constituting  negligence, 
is  good  against  a  demurrer.  Gulf,  C.  &^  S. 
F.  R.  Co.  V.  Washington,  49  Fed.  Rep.  347, 
4  U.  S.  App.  121, 1  CCA.  286,  Cleveland, 
C,  C.  (So  /.  R.  Co.  V.  Wynant,  100  Ind,  160. 
Hammond  v.  Schweitzer,  1 1 2  Ind.  246,  1 1 
West.  Rep.  661,  13  A'.  E.  Rep.  869.— Dis- 
tinguishing Pennsylvania  Co.  v.  Marion, 
104  Ind.  zy).— Louisville,  N.  A.  &*  C  R. 
Co.  V.  Cauley,  119  Ind.  142,  21  A^,  E.  Rep. 
546.  Ohio  &•  AI.  R.  Co.  V.  AlcCartney,  121 
Ind.  385,  23  N.  E.  Rep.  258.  Ohio  &•  M.  R. 
Co.  V.  Craycraft,  5  Ind.  App.  335,  .-•?  N.  E. 
Rep.  2<fj. 

But  where  the  pleader  sees  fit  to  specify 
the  grounds  of  negligence, he  will  be  confined 
in  his  proofs  to  the  facts  thus  specified. 
Ravenscraft  v.  Alissouri  Pac.  R.  Co.,  27  AIo. 
App.  617.  Schneider  v.  Afissouri  Pac.  R. 
Co.,  75  Afo.  295.— Distinguishing  Wald- 
hier  v.  Hannibal  &  St.  ].  R.  Co.,  71  Mo. 


Mi 


i^        ■': 


820 


NEGLIGENCE,  «0. 


514.— Reviewed  in  Jacksonville,  T.  &  K. 
W.  R.  Co.  T.  Garrison,  30  Fia.  557. — A/c/ti- 
^on  V.   Chicaso,  R.  I.  «S-  P.  R.  Co.,  80  Mo. 

213- 

An  allegation  in  a  pleading  that  the  party 
complained  against  negligently  committed 
the  particular  act,  or  negligently  omitted  to 
do  a  particular  thing,  vvliich  led  to  the  in- 
jury for  wiiich  redress  is  sought,  is  sufficient 
ivithout  pleading  all  the  facts  and  circum- 
stances from  which  negligence  could  be  in- 
ferred. Chicago,  St.  L.  &•  P.  R.  Co.  v. 
Barnes,  2  Itid.  App.  213,  28  N.  E.  Rep.  328. 
Mack  v.  St.  Louis,  K.  C.  <S-  A^.  R.  Co.,  77 
Mo.  232.— Approved  in  Crane  v.  Missouri 
Pac.  R.  Co.,  25  Am.  &  Eng.  R.  Cas.  440,  87 
Mo.  i%?,.—Hill  V.  Missouri  Pac.  R.  Co.,  49 
Mo.  App.  520.— Appi-VING  Kendigi/.  Chi- 
cago, R.  I.  &  P.  R.  Co.,  79  Mo.  207;  Wal- 
lace V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  74  Mo. 
594.  Criticising  HofTman  v.  Missouri 
Pac.  R.  Co.,  24  Mo.  App.  546,  Welch  z/. 
Hannibal  &  St.  J.  R.  Co.,  20  Mo.  App.  477. 

But  the  act  which  is  characterized  by 
negligence  must  be  stated.  Ohio  &»  M.  R. 
Co.  V.  Engrer,  4  Ind.  App.  261.  30  A'^.  E, 
Rep.  924.  Wills  V.  Cape  Girardeau  S.  W, 
R.  Co.,  ^Mo.  App.  51.— Following  Buf- 
fington  V.  Atlantic  &  P.  R.  Co.,  64  Mo.  246. 
Qualifying  Waldhier  v.  Hannibal  &  St.  J. 
R.  Co.,  71  Mo.  514;  Current  v,  Missouri 
Pac.  R.  Co.,  86  Mo.  62.—  Woodward  v.  Ore- 
gon R.  &^  N.  Co.,  18  Oreg.  289,  22  Pac.  Rep. 
1076.— Quoting  Meyer  z/.  Atlantic  &  P.  R. 
Co.,  64  Mo.  542;  Field  ?'.  Chicago,  R.  I.  & 
P.  R.  Co.,  76  Mo.  614.  Reviewing  Wald- 
hier 7/.  Hannibal  &  St.  J.  R.  Co.,  71  Mo. 
514  Edens  z/.  Hannibal  &  St.  J.  R.  Co.,  72 
Mo,  212;  Chicago,  B.  &  Q.  R.  Co.  v.  Har- 
wcod,  90  111.  425 ;  Thomas  v,  Georgia  R.  &  B. 
Co.,  40  Ga.  23!  ;  Ohio  &  M.  R.  Co.  v.  Selby, 
47  Ind.  471.— Distinguished  in  Parker  v. 
Providence  &  S.  Steamboat  Co.,  17  R.  I. 
376. — Missouri  Pac.  R.  Co.  v.  Hennessey,  42 
Am.  &'  Eng.  R.  Cas.  225,  75  Tex.  155,  12  5. 
H^.  Rep.  608.— Applied  in  Gulf,  C.  &  S. 
F.  R.  Co.  V.  Wilson,  79  Tex.  371.  Re- 
viewed IN  Parker  v.  Providence  &  S. 
Steamboat  Co.,  17  R.  I.  376. 

In  a  special  verdict,  however,  the  particu- 
lar facts  proved  under  such  a  pleading 
should  be  set  out.  Evansville  S*  T.  H.  R. 
Co.  V.  Taft,  2  Ind.  App.  237,  28  A'.  E.  Rep. 

443- 

A  declaration  which  alleges  that  plaintifl 
was  on  a  railroad  track  by  consent  of  the 
company  and  was  injured  by  the  running  of 


cars  unusually  loaded,  with  timbers  project- 
ing seven  feet  beyond  the  track,  and  that 
he  was  injured  while  standing  that  distance 
from  the  track,  at  night,  supposing  that  he 
was  at  a  safe  distance,  states  facts  sufficient 
to  entitle  plaintifl,  when  established  by  evi- 
dence, to  have  the  case  submitted  to  the 
jury,  and  it  is  error  to  dismiss  the  complaint 
on  demurrer.  Raston  v.  Georgia  R.  Co.,  60 
Ga.  335.— Distinguished  in  Central  R. 
Co.  V.  Brinson,  19  An:.  &  Eng.  R.  Cas.  42, 
70  Ga.  207.  Quoted  in  Western  &  A.  R. 
Co.  V.  Meigs,  74  Ga.  857. 

A  petition  in  an  action  against  a  railroad 
company  for  personal  injury  growing  out 
of  the  alleged  negligence  of  the  servants  of 
the  company  must  show  to  which  servant 
or  servants  of  the  company  negligence  is 
imputed,  and  fully  and  definitely  state  what 
acts  or  omissions  of  such  servants  consti- 
tute the  negligence  complained  of.  Atchi' 
son,  T.  5-  S.  F.  R.  Co.  v.  O'Neill,  49  Kan. 
367,  30  Pac.  Rep.  470. 

A  declaration  for  negligent  injury  must 
aver  the  fact  and  the  manner  of  negli- 
gence, and  plaintiff  should  be  confined  to 
what  is  set  forth  in  his  declaration.  Mar- 
quette, H.  <S-  O.  R.  Co.  V.  Marcott,  41  Mic/i. 
433. —Distinguished  in  McDonald  v. 
Chicago  &  N.  W.  R.  Co..  51  Mich.  628. 

In  actions  on  the  case  for  negligence  the 
plaintifl  is  bound  to  set  out  in  his  declara- 
tion the  combination  of  material  facts  relied 
on  as  a  cause  of  action,  and  to  follow  up 
the  allegation  by  evidence  pointing  out  and 
proving  the  same  combination  of  circum- 
stances, in  order  to  apprise  the  parties  and 
the  court  of  the  precise  subject  of  the  con- 
troversy. Denman  v.  Johnston,  85  Mich. 
387,  48  A^.  W.  Rep.  565. 

00.  Cliaracterizin{ir  the  degree  of 
negligence.— Under  a  general  charge  of 
negligence,  evidence  may  be  given  of  any 
and  every  degree  of  negligence.  Negligence 
must  be  charged  in  the  complaint,  but  it  is 
the  province  of  the  evidence  to  show  in 
what  it  consisted.  Pennsylvania  Co.  v. 
Krick,  47  Ind.  368.  Shumacher  v.  St.  Louis 
&-  S.  F.  R.  Co.,  39  Fed.  Rep.  174.  17  Wash. 
L.  Rep.  550.  Louisville  <S-  A'.  K.  Co.  v. 
Mitchell.  87  A>.  327.  8  S.  W.  Rep.  706. 

A  plaintifl  who  has  simply  averred  negli- 
gence Where  there  is  proof  of  contributory 
negligence  may  prove  gross  negligence  in 
defendant  and  recover  under  such  declara- 
tion. Rockford,  R.  I.  6-  St.  L.  R.  Co.  v. 
Phillips,  66  ///.  $48.     LouisvilU  &*  N.  R. 


N  /3LIGENCE,  Ul-03. 


821 


Co.  V.  Mitchell,  87  Ky.  327,  8  S.  IV.  Rep, 
706. 

Where  a  complaint  charges  negligence  on 
tiie  part  of  the  defendant  and  due  care  on 
liic  part  of  the  plaintiff,  the  gravamen  of 
the  action  will  be  regarded  as  simply  negli- 
i,'(nce,  though  it  be  charged  that  the  injury 
was  "wanton,  wilful,"  and  "with  the  inten- 
tion to  injure  plaintifT."  Cleveland,  C,  C.  &* 
I.  A'.  Co.  V.  Asbury,  120  Ittit.  289,  23  N.  E. 
Rep.  140. 

Tlie  allegation  of  wilful  negligence  in  an 
action  against  a  railroad  company  includes 
all  the  inferior  grades,  and  the  jury  must 
determine  from  the  proof  whether  recovery 
is  to  be  had,  if  at  all.  under  the  first  or  the 
third  section  of  Ky.  Act  of  March  10,  1854, 
and  then  assess  the  damages  according  to 
the  provisions  of  the  act  itself.  Louisville, 
C.  &>  L.  Ji.  Co,  V.  Case,  9  Hush  (A>.)  728. 

An  averment  in  a  complaint  that  the  . 
plaintiff  was  injured  through  defendant's 
"  gross  negligence  "  will  not  limit  plaintiff's 
riyht  of  recovery  (if  otherwise  entitled)  to 
an  injury  inflicted  by  the  wilful  or  inten- 
tional act  of  another,  but  he  may  recover 
for  any  lesser  degree  of  negligence.  Hays 
V.  Gainesville  St,  A',  Co. ,  34  Am.  <S-  En^-.  A'. 
Cas,  97,  70  Tex,  602,  8  S,   IV,  Kep.  491. 

3.  Evidenct — Presumptions — Burden  of 

Proof. 
0 1 .  When  evidence  is  adniissibie.* 

—  Proof  that  an  act  charged  to  have  been 
negligently  done  was  done  in  an  unusual 
manner  is  proper,  as  going  to  show  that  it 
was  not  necessary  to  do  it  as  it  was  done. 
Sttffi-nson  V.  Chicago,  M.  &*  St.  P,  Ji,  Co., 
51  Minn,  531.  53  A'.  W.  AV/.  800. 

Where  a  person  is  charged  with  negli- 
gently doing  or  omitting  an  act,  and  the 
evidence  is  conflicting,  it  is  competent  to  * 
show  that  he  had  performed  or  omitted  the 
same  act  in  the  same  way  before,  as  tend- 
in";  to  show  that  he  did  or  omitted  the  act 
at  tiie  lime  in  question.  Stale  v.  Man- 
cluster  <S-  L,  A\  Co.,  52  JV.  H.  528.— Not 
Koi.i.DWKD  N  Savannah,  F.  &  W.  R.  Co. 
V.  Klannagan,  39  Am.  &  Eng.  R.  Cas.  661, 
82  Ga.  579,  9  S.  E.  Rep.  471. 

Where  cars  leave  a  track  through  alleged 
defects  therein,  proof  that  the  track  was  in 
ha(l_condition  at  other  places  in  the  vicinity 
of  the  accident   is  admissible  for  the  piir- 

*  Admissibility  of  evidence  of  absence  of  flag- 
man from  station  as  tending  to  prove  negligence, 
see  note,  17  .Am.  Rep.  363. 


pose  of  show^ing  negligence  on  the  part  of 
the  company.  Reed  v.  New  York  C,  R.  Co,, 
56  liat-6.  {N,  V,)  493;    reversed  in  45  N.  Y. 

575- 

Where  a  passenger  is  injured  through  an 
alleged  defect  in  a  car,  evidence  of  a  defect 
in  the  car  prior  to  the  accident  is  competent 
to  show  negligence  on  the  part  of  the  com- 
pany in  not  taking  effectual  steps  to  remedy 
it ;  and  evidence  of  various  previous  acci- 
dents from  the  same  cause  is  competent  as 
illustrating  the  character  of  the  defect. 
Chase  v.  Jamestown  St.  R.  fo.,  38  N.  Y.  S. 
R,  954,  60  Nun  582,  mem.,  1$  N,  Y.  Supp. 
35  ;  affirmed  in  133  A^.  Y,  619,  mem,,  30  A'. 
E,  Rep,  1 1 50,  44  A^.   Y,  S.  R.  931,  mem. 

In  a  suit  growing  out  of  the  alleged  negli- 
gent management  of  a  train,  a  brakeman  of 
defendant  was  asked  :  "  Did  you  omit  to  do 
anything  you  could  have  dono  to  prevent 
this  accident?"  Neld,  that  it.  was  com- 
petent to  prove  all  the  witness  had  done, 
but  it  was  for  the  jury  to  decide  whether  by 
acts  done  or  duties  omitted  he  had  been 
guilty  of  negligence.  North  Pa,  R,  Co,  v. 
A'iri;  i  Am.  6-  Eng.  R,  Cas,  45,  90  Pa.  St, 

02.  Wiiut  evidence  is  inadmissible. 

— It  is  not  error  to  overrule  an  offer  by 
defendants  to  prove  what  instructions  were 
given  by  them  to  their  servants  relative  to 
the  care  of  a  stove  and  other  contents  of  an 
oil  house,  where  the  ground  of  plaintiff's 
case  IS  the  negligence  of  the  servants.  Read 
v.  Pennsylvania  R.  Co,,  44  A^.  /.  L,  280. 

The  claim  of  negligence  on  the  part  of 
defendant,  the  H..  W.  S.  &  P.  F.  R.  Co  .was 
an  insufficient  inspection  of  the  running 
gear  of  its  car,  a  brake  rod  of  which  broke 
because  of  a  defect  in  the  iron,  and  so  pre- 
vented the  stopping  of  the  car.  After  a 
witness  on  its  part  hiid  testified  as  to  the 
mode  of  inspection,  a  witness  called  by  the 
other  defendant  testified  that  this  mode  o^ 
examination  would  not  discover  a  latent  de- 
fect. Upon  cross-examination  by  plaintifT 
the  witness  was  permitted  to  testify,  under 
objection  and  exception  on  the  part  of  the 
S.  A.  R.  Co..  that  such  mode  of  examina- 
tion was  not  a  proper  one.  field,  error. 
Schneider  v.  Se-ond  Ave.  R,  Co.,  133  A^.  Y, 
583.  30  A^  E.  Rep.  752.  44  A'.  K.  S,  R,  680; 
reversing  in  part  27  /.  &•  S.  536,  39  A'.  Y, 
S.  R.  370.  IS  N.  Y.  Supp.  556. 

fKI.  Evidence  must  correspond 
with  ne{r|lffeiice  alleged.— In  actions 
for  negligence  the  evidence  should  corre- 


Hi 


800 


NEGLIGENCE,  04-l?7. 


spond  to  the  specific  neglect  charged. 
Nar/y  v.  S/.  Louts,  I.  M.  6-  S.  R.  Co.,  95 
Mo.  368, 14  West.  Rep.  760,  8  5.  W.  Rep.  56.-. 
Where  the  negligence  in  proof  at  the  trial 
is  not  the  negligence  alleged  in  the  petition 
as  a  ground  of  recovery,  it  is  inadmissible. 
Conway  v.  Hannibal  (S-  St.  J.  R.  Co.,  24  Mo. 
App.  235. 

04.  Plaf  ittiff  need  not  prove  all  liis 
nveriiieutH. — Where  the  action  is  biised 
on  negligence,  the  plaintiff  is  not  required 
to  establish  by  proof  all  the  material  aver- 
ments in  the  SQ^eral  counts  of  the  declara- 
tion. He  may  recover  if  he  proves  the  ma- 
terial averments  of  one  count  only.  Peoria, 
D.  &*  E.  R.  Co.  V.  Johns,  43  ///.  App.  83. 

Immaterial  acts  of  negligence,  though 
alleged,  need  not  be  proved.  Thayer  v. 
Flint  Sf  P.  M.  R.  Co.,  93  Mich.  150,  53  N. 

IV.  Rep.  216.— Distinguishing  Wormsdorf 

V.  Detroit  City  R.  Co.,  75  Mich.  472. 
Where  a  complaint  for  negligence  states 

two  or  more  grounds,  in  only  one  of  which 
it  charges  knowledge  on  defendant's  part,  it 
is  not  necessary  to  prove  knowledge  in 
order  to  recover.  Louisville  &'  N.  R.  Co.  v. 
Coulton,  86  Ala.  1 29,  5  So.  Rep.  458. 

05.  Evidence  of  custoiii  to  show 
iieKligrence  or  absence  of  iicg;!!- 
(fence.*— Proof  of  a  general  custom  as  to 
the  running  of  extra  trains  is  competent,  as 
alTecting  the  question  whether  it  is  negli- 
gence so  to  operate  them.  Larson  v.  St. 
Paul,  M.  &*  M.  R.  Co.,  44  Am.  <S-  En^.  R. 
Cas.  529,  43  Minn.  423,  45  N.  IV.  Rep.  722. 

90.  Kvideiiee  in  defense,  generally. 
— To  rebut  the  charge  of  negligence  which 
may  be  put  in  issue  by  the  general  denial, 
or  by  specially  pleading  matters  negativing 
negligence,  it  is  competent  to  show  that  the 
act  complained  of  was  of  inevitable  neces- 
sity, act  of  God,  etc.  Galveston,  H.  Sf  S.  A. 
R.  Co.  V.  Daniels,  1  Tex.  Civ.  Apt.  695,  20 
S.  \V.  Rep.  955. 

97.  Sulficfency  of  evldencj,  gen- 
erally.— Negligence  must  be  atlii  maiively 
proved ;  but,  like  other  facts  it  may  be 
shown  by  irresistible  inference  from  circum- 
stances. Alpern  v.  Churchill,  53  Mich.  607, 
19  A'.  \V.  Rep.  549.  Jacksonville,  T.  &*  K. 
11'.  R.  Co.  V.  Peninsular  L.,  T.  &"  M.  G>.,49 
Am.  iT-*  Rh^^.  R.  Cas.  603.  27  Fla.  i,  9  .So.  Rep. 
661.  Garrett  v.  Chica<:;o  iS»  A'.  W.  R.  Co., 
36  /oTva  121.     JCiMf  V.  Chicago  &»  A.  R.  Co., 

*  Evidence  of  custom  inadmissible  hs  bearing 
on  negligence,  see  note,  23  Am.  &  E.nu.  K.  Cas. 
34f>- 


41  Am.  &*  Eng.  R.  Cas.  555,  too  Mo.  228, 
12  5.  W.  Rep.  640.  Squire  v.  Central  Park, 
N.  &-  E.  R.  R.  Co.,  4/.  <S-  5.  (A^.  V.)  436. 

Negligence  must  be  determined  by  what 
was  known  before  and  at  the  time  of  the 
accident,  and  not  by  subsequent  facts;  in 
other  words,  it  must  be  decided  upon  the 
facts  as  they  existed  at  the  time  of  the  in- 
jury. Schmitt  V.  Dry  Dock,  E  ii.  &•  B.  R. 
Co.,  2  City  Ct.  (N.  Y.)  359. 

A  jury  cannot  arbitrarily  infer  negligence, 
but  the  evidence  must  affirmatively  estab- 
lish circumstances  from  which  the  inference 
fairly  arises  that  the  accident  resulted  from 
the  want  of  some  precaution  which  the  de- 
fendant ought  to  have  taken.  Wabash,  St. 
L.  &*  P.  R.  Co.  V.  iMcke,  112  Ind.  404,  11 
West  Rep.  877,  14  A^.  E.  Rep.  391. 

Evidence  which  is  insufficient  to  sustain 
a  finding  of  the  lower  degree  of  culpability 
is  (I /(W/<7/'/ insufficient  to  sustain  a  finding 
of  the  higher.  Magnin  v.  Dinsmore,  Sy.&* 
S.  OV.  V.)  612. 

Proof  that  an  injury  was  unintentional 
will  not  establish  the  fact  that  it  was  not 
negligent.  Joyner  v.  South  Carolina  R.  Co., 
29  Am.  <S«»  Et^.  R.  Cas.  258,  26  So.  Car.  49, 
I  S.  E.  Rep.  52. 

In  a  suit  against  a  railroad  company  for 
damages  for  an  injury  to  the  person  from 
negligence,  to  entitle  the  plaintiff  to  re- 
cover, it  is  not  enough  that  the  evidence 
shows  that  the  injured  person  did  only  what 
a  prudent  person  would  have  done  under 
the  same  circumstances,  but  it  must  like- 
wise show  that  the  defendant  committed 
some  fault  or  was  guilty  of  some  negligence 
which  contributed  to  \.\w  injury.  Gulf,  C. 
5-  S.  F.  R.  Co.  V.  Wallen,  16  Am.  &^  Fng.  R. 
Cas.  219,  65  Tex.  568. 

In  order  to  recover  fo  negligence  it  is 
not  suthcient  to  show  chat  the  defendant 
has  neglected  some  'Juty  or  obligation  ex- 
isting at  common  law  or  imposed  by  statute, 
but  it  must  be  shown  that  the  defendant 
has  neglected  a  duty  or  obligation  which  it 
owes  to  him  who  claims  damages  for  the 
neglect.  Williams  v.  Chicago  &•  A.  Vv'.  Co., 
135  ///.  491,  26  A'.  E.  Rep.  661 ;  affirming  32 
///.  App.  339- 

Evidence  showing  that  the  cross-tics  on 
the  railroad  at  and  near  the  scene  of  the 
accident  were  in  a  rotten  and  unsafe  condi- 
tion establishes  simple  negligence  only, 
when  it  is  not  also  shown  that  the  defendant 
had  knowledge  of  their  defective  and  dan- 
gerous condition  ;  and  the  fact  that  the  de> 


NEGLIGENCE,  08,90. 


«23 


fects  had  existed  for  two  weeks  does  not 
import  knowledge  as  matter  of  law,  though 
knowledge  may  be  inferable  from  it  by  the 
jury.  Richmond  &»  D.  K.  Co.  v.  Vance,  93 
Ala.  144,  9  So.  Rep.  574.  —  Following 
Georgia  Pac.  R.  Co.  v.  Lee,  93  Ala.  262. 
Qualifying  Alabama  G.  S.  R.  Co.  v.  Hill, 
90  Ala.  71. 

Where,  in  an  action  for  personal  injuries 
caused  by  the  negligence  of  a  railroad, 
the  physician  who  examined  plaintiff  after 
the  accident  testified  that  he  found  evi« 
dence  of  compression  of  the  chest  and  pneu- 
monia arising  from  the  compression  which 
involved  both  lungs,  and  where  it  appears 
that  the  malady  from  which  plaintiff  suffered 
both  before  and  at  the  trial  was  superin- 
duced by  the  pneumonia  arising  from  the 
injuries,  such  evidence  was  sufficient  to  au- 
thorize the  finding  of  the  jury  that  plaintiff's 
malady  was  caused  by  the  injuries  received 
in  the  accident.  Hanlon  v.  Missouri  Pac. 
R.  Co.,  104  Mo.  381,  16  S.  jr.  Rep.  233. 

Plaintiff  was  injured  while  riding  on  a 
switchback  railway,  operated  by  the  owner 
at  defendant's  pleasure  resort,  by  tlie  derail- 
ing of  the  car,  caused,  as  she  claims,  by  a 
chip  having  gotten  upon  the  rail  through 
the  negligence  of  defendant's  carpenters, 
wiio  were  working  near  the  place  of  the 
accident.  A  witness  for  plaintiff  testi- 
fied to  seeing  one  chip  by  the  side  of  the 
track  at  the  place  of  the  accident  with  the 
shape  of  the  car  wheel  upon  it,  and  other 
witnesses  testified  to  seeing  chips  alongside 
of  and  on  the  track.  There  was  uncontra- 
dicted testimony  that  an  hour  before  the 
accident  a  son  of  the  owner  of  the  switch- 
back was  at  work  with  an  adz  trimming  off 
the  center  in  between  the  tracks  at  the  very 
point  of  the  accident.  //</</,  that  the  jury 
were  not  warranted  in  finding  that  the  acci- 
dent wasoccasioned  by  reason  of  the  careless- 
ness or  negligence  of  defendant's  servants  in 
allowing  the  track  to  be  obstructed.  Knott- 
nerus  v.  North  Park  St.  R.  Co.,  93  Mich. 
348,  53  A':  //'.  Rep.  529.— Distinguishing 
Conrailt  v.  Clauve,  93  liui.  476. 

The  plaintiff  was  injure'  while  riding 
upon  a  hand-car  which  was  running  unusu- 
ally fast,  and  a  temporary  foot  rest  im- 
provised for  the  occasion  gave  way,  causing 
the  plaintiff  to  fall  in  front  of  the  car,  from 
which  he  received  injury.  Held,  that  the 
evidence  was  sufficient  to  justify  a  finding 
that  the  accident  was  caused  fioin  the 
failure  of   the   company's   servants  to  use 


ordinary  care.     International  &*  G.  N.  R, 
Co.  v.  Prince,  44  Am.  &*  Eng.  R.  Cas.  294, 
77  Tex.  560,  14  S.  IV.  Rep.  171. 
08.  Prcpoiiilcruiicc  of  evidence— 

In  order  to  recover  a  plaintiff  must  estab- 
lish by  a  fair  preponderance  of  evidence  the 
negligence  of  ihe  defendant,  and  that  the 
injury  resulted  from  that  negligence.  or,.as 
the  law  puts  it,  tha»  the  negligence  was  the 
proximate  cause  of  the  injury,  //arris  v. 
Union  Pac.  A*.  Co.,  4  McCrary  (U.  S.)  454, 
13  Fed.  Rep.  591.  Quai/e  v.  Chicago  &•  N. 
W.  R.  Co.,  48  Wis.  513,  33  Am.  /iep.  821,  4 
N.  IV.  Rep.  658.— Reviewed  in  Hartwig 
V.  Chicago  &  N.  W.  R.  Co.,  i  Am.  &  Eng. 
R.  Cas.  65,  49  Wis.  358. 

Where  a  complaint  sets  out  certain  acts 
of  negligence,  as  that  the  train  approached 
without  signals  at  a  place  where  there  was 
a  heavy  growth  of  weeds  and  bushes  which 
shut  off  the  view,  and  that  the  train  was 
otherwise  negligently  operated,  plaintiff 
must  prove  such  allegations  by  a  prepon- 
derance of  evidence  in  order  to  recover. 
/'itltoH  County  JV.  G.  R.  Co.  v.  Butler,  48  ///. 
App.  301. 

00.  When  ne};li{;ciico  will  he  pre- 
HUined.'" — The  happening  of  a  railroad  ac- 
cident is  prima  facie  proof  of  negligence. 
Patti-e  V.  Chicago,  M.&'St.  P.  R.  Co.,  34  Am. 
6-  Zi/ftf.  R.  Cas.  399,  5  DaJt.  267,  38  A'.  IV. 
Rep.  435.— Quoting  Spaulding  v.  Chicago 
&  N.  W.  R.  Co.,  33  Wis.  582. 

But  this  rule  only  obtains  where  the  cir- 
cumstances attending  the  accident  do  not 
themselves  rebut  the  presumption  of  negli- 
gence. Chicago  City  A'.  Co.  v.  Lewis,  5  ///. 
App.  242. 

•  When  occurrence  of  accident  raises  pre- 
sumptiun  of  negligence,  see  notes,  44  Am.  & 
Em;.  R.  Cas.  351;  30  Id.  621;  16  Id.  314;  6  /d. 
418;  75  Am.  Dk.c.  267;  83  Id.  58();  50  Am.  Rep. 
553;  20  A.M.  St.  Rkp.  490;  30  Id.  736 

Presumpiion  of  neglii;eiice  where  Injuries  re- 
sult from  defects  in  train,  see  note,  13  L.  R.  A. 
35- 

F^resuniption  of  negligencp  where  Injury  is 
shown,  but  where  there  is  noevidenic  as  to  who 
was  at  fault,  see  note,  6  Am.  Sr.  RkI'.  792. 

Proof  of  injury  to  passenger,  when  frima  fade 
evidence  of  negligence,  see  notes,  43  Am.  Dec. 
363;  02  Id.  6S0;  4-i  Am.  Rh-.  73;  15  L.  R  A.  37. 
See  also  47  Am.  &  Eng.  R.  Cas.  492,  abstr.;  53 
Id.  249,  alistr. 

Killing  of  stuck  by  trai.i,  when  raises  a  pre- 
sumption of  negligem  e,  see  notes,  I  L.  R.  A.  448; 
15  Id.  39- 

Presumption  of  negligence  in  action  for  the 
destruciiiin  of  property  by  fire,  see  notes,  45  Am. 
&  E.Ni;.  R.  Cas.  563;  15  L.  R  A.  40.  See  also 
43  Am.  &  Eno  R.  Cas.  27,  abstr.;  35  /d.  243, 
abstr.;  S4  id.  535,  abstr. 


i  4i 


824 


NEGLIGENCE,  100. 


SI    ■-- 


Where  one  is  injured  by  the  running;  of  a 
car  and  engine  of  a  railroad  company,  the 
law  presumes  tliui  sucii  injury  was  the  re- 
sult of  negligence  on  the  part  ot  the  com- 
pany, and  to  relieve  itself  of  such  presump- 
tion it  must  show  tiiai  it  used  all  ordinary 
care  and  diligence  to  prevent  the  injury.  It 
is  not  enough  for  it  to  insist  that  it  does 
not  know  how  the  accident  occurred,  and 
that  it  is  impossible  to  find  out.  Central 
A'.  Co.  V.  Sanders,  27  Atn.  &*  Eng.  A'.  Cas, 
300,  73  Ga.  5 1 3.  Columbus  &*  11 '.  J\\  Co.  v. 
Kenneily,  31  Am.  &■*  En^.  K.  Cas.  92,  78  Ga. 
646.  3^.  E.  Rep.  267. — EXPLAINRI)  IN  Rich- 
mond &  D.  R.  Co.  V.  White.  88  Ga.  805. 

Whenever  property  is  injured  by  the  run- 
ning of  locomotives,  earn,  or  other  mnrhin- 
ery  of  a  railroad  company,  a  presumption 
of  negligence  arises  against  the  company, 
but  this  presumption  may  be  rebutted  by 
showing  that  at  the  time  the  injury  oc- 
curred its  agents  were  exercising  all  ordi- 
nary and  reasonable  care  and  diligence. 
Georgia  R.  Sr*  B.  Co.  v.  IVilhoit,  78  Ga.  714. 
3  S.  E.  Kep.  698. 

The  running  of  a  train  ofT  the  track  is 
prima  facie  evidence,  though  slight,  of  neg- 
ligence on  the  part  of  the  railroad  or  its 
employes.      Yonge  v.  Kinney,  28  Ga.  in. 

Proof  that  a  locomotive  engineer  sud- 
denly let  oflf  a  jet  of  steam,  just  as  defend- 
ant drove  his  horse  alongside  of  the  engine, 
on  a  city  street,  is  prima  facie  evidence  of 
negligence.  Stamm  v.  Southern  R.  Co.,  i 
Abb.  N.  Cas.  (N.  V.)  438.  . 

As  a  general  thing,  where  the  action  is 
(or  injuries  committed  by  immediate  force, 
it  is  enough  to  prove  the  act  of  the  defend- 
ant and  a  resulting  injury,  which  constitute 
prima  facie  evidence  that  the  act  was  wjl- 
ful  or  negligent.  Galpin  v.  Chicago  &•  N. 
IV.  R.  Co.,  19  Wis.  604.— Following  Dan- 
ner  v.  South  C.irolina  R.  Co.,  4  Rich.  (So. 
Car.)  334. 

The  failure  of  a  company  to  introduce  the 
testimony  of  its  employes  who  were  on 
the  train  at  the  time  of  the  accident  raises 
a  presumption  of  negligence  against  the 
company.  /),iv  v.  A'eic  Orleans  Pac.  R.  Co., 
35  l.a.  Ann.  C)94. 

100.  WluMi  no  iirosiiiiiptioii  of 
iiCKli»:t'ii<'«>  arisi's.*— Actual  negligence 
must  he  proved ;  it  will  not  be  implied  nor 


*  When  mere  happfninf;  of  accident  does  not 
establish  a  presiinipiioii  of  ncgiiccnce,  see  note, 
2  I.    R.  A.  S.'(. 


presumed.  Grand  Rapids  Sf  I.  R.  Co.  v. 
Huntley,  38  Mich.  537.  Brown  v.  Congress 
&^  B.  St.  R.  Co.,  8  /////.  ij^  Eng.  R.  Cas.  383, 
49  Mich.  153.  13  N.  IV.  Rep.  494.— Al'- 
PKovKl)  IN  Kchdrick  v.  Towle,  60  Mich. 
363,  1  Am.  St.  Rep.  526,  27  N.  W.  Rep.  567. 
—Heivitt  v.  Flint  ^  P.  M.  R.  Co.,  31  Am. 
&*  Eng.  R.  Ciis.  249,  67  Mich.  61,  11  West 
Rep.  148,  34  ^V.  //'.  Rep.  659.  Paine  v. 
Grand  Trunk  R.  Co.,  58  ;V. //.  611.  Knox 
V.  A\ii>  Vorl;  L.  E.  &*  IV.  R.  Co.,  52  A'.  Y. 
S.  R.  730,  69  Hun  93,  23  N.  Y.  Supp.  198. 

Negligence  cannot  be  presumed  in  an  ac- 
tion for  personal  injury  if  the  company  does 
nothing  outside  of  tlie  usn^l  course  of  its 
business,  unless  that  course  of  business  is 
itself  improper,  or  special  circumstances  re- 
quire particular  caution.  Mitchell  v.  Chi- 
cago &*  G.  T.  R.  Co.,  12  Am.  &*  Eng.  R. 
ciis.  163,  51  Mich.  236,  16  JV.  W.  Rep.  388, 
47  Aw.  Rep.  566.— Distinguished  in  Van 
Ostran  v.  New  York  C.  &  H.  R.  R.  Co.,  35 
Hun  (N.  Y.)  l^.— Grand  Rapids  <S-  /.  A*. 
Co.  V.  Judson,  34  Mich.  506.  Guffey  v.  Han- 
nibal&'St.f.  R.  Co.,  53  Mo.  App.  462. 

Negligence  will  not  be  presumed  from  the 
r.iere  fact  of  accident,  which  is  as  consistent 
with  the  presumption  that  it  was  unavoid- 
able as  it  is  with  negligence,  and  there 
should  be  some  evidence  that  it  could  have 
been  avoided  with  proper  diligence  and 
precaution.  Stern  v,  Michigan  C.  R.  Co., 
76  Mich.  591,  43  A^.  W.  Rep.  587.  Wer- 
bowlsky  v.  Ft.  Wayne  &-  E.  R.  Co.,  86 
Mich.  236,  48  A'.  W.  Rep.  1097.  Toomey  v. 
Eureka  I.  &*  S.  Works,  89  Mich,  249,  50  A^. 
W.  Rep.  850.  Yarnell  v.  Kansas  City,  Ft.  S. 
&*  M.  R.  Co.,  113  Mo.  570.  21  S.  W.  Rep. 
I.  Bahr  v.  Lombard,  53  N. /.  L.  233.  21 
Atl.  Rep.  190.  23  ////.  Rep.  167.  Barrett  v. 
Smith,  27  f.  &*  S.  250.  14  A'.  Y.  Supp.  307, 
38  A'.  Y.  S.  R.  526:  reversed  in  128  ;V.  Y. 
607,  28  A'.  E.  Rep.  23 ;  see  also  135  A^.  Y.  659, 
32  A^  E.  Rep.  648. 

Where  an  event  tak»s  place  the  real 
cause  of  which  cannot  be  traced,  or  is  at 
least  not  apparent,  it  ordinarily  belongs  to 
that  class  of  occurrences  designated  as 
purely  accidental,  and,  there  being  no  pre- 
sumption of  nc.^ligcnco  in  such  cases, 
the  party  who  assorts  negligence  must  show 
enough  to  exclude  the  rase  from  the  class 
mentioned.  Wabash,  St,  L.  &•  P.  R.  Co. 
v.  Locke,  112  Ind,  404,  11  West  Rep.  877, 
14  .V.  E.  Rep.  391. 

Railroad  trains  are  liable  to  be  detained 
by  various  causes  without  any  fault  of  the 


NEGLIGENCE,  101. 


825 


company,  and  negligence  cannot  be  imputed 
to  the  company  fruni  tlic  fuct  that  a  train 
may  be  beliind  the  usual  time.  State  v. 
Philadelphia,  W.  &*  13.  R.  Co.,  47  Md.  76, 
18  //;;/.  />>.  Rep.  253. 

The  provision  of  Miss.  Code  of  1880,  § 
1059,  that  "in  all  actions  against  railroad 
companies  for  damage  done  to  persons  or 
properly  proof  of  injury  inflicted  by  the 
runnii-^  of  locomotives  or  cars  shall  be 
prima  facie  evidence  of  the  want  of  reason- 
able skill  and  care  "  is  limited  to  suits  for 
direct  injuries  to  persons  or  property,  and 
does  not  apply  to  actions  arising  ex  con- 
tractu by  persons  who  are  neither  shippers 
nor  passengers.  Chicago,  St.  L,  &*  N.  O.  R. 
Co.  V.  Trotter,  60  Miss.  442. 

Proof  of  injury  inflicted  by  the  running  of 
trains  is  prima  facie  evidence  of  the  want 
of  skill  and  care,  but  where  the  circum- 
stances attending  the  injury  arc  shown  by 
the  evidence,  the  case  must  be  determined 
upon  the  proven  facts,  not  upon  any  pre- 
sumption of  negligence.  New  Orleans  &*  N. 
K.  R.  Co.  V.  Bourgeois,  66  Miss.  3,  5  So.  Rep. 
639. 

Where  the  testimony  which  proves  the 
occurrence  by  which  the  plaintitT  was  in- 
jured discloses  circumstances  from  which 
the  negligent  conduct  of  the  defendant  is  a 
reasonable  inference,  a  case  is  presented 
which  calls  for  a  defense.  If,  however,  the 
plaintifT's  case  shows  him  to  be  possessed 
of  material  but  undisclosed  evidence,  the 
mere  proof  of  the  occurrence  of  an  accident 
raises  no  presumption  of  negligence,  to  re- 
but which  tlie  defendant  can  be  called  upon 
toofler  testimony.  Rahrv.  Lombard,  53  A', 
y.  L.  2J3,  21  Atl.  Rep.  190,  23  Atl.  Rep. 
167. 

Wliere  an  injury  happens  at  a  highway 
crossing,  the  jury  has  a  right  to  consider  a 
statute  requiring  railroad  companies  to  ring 
a  i)ell  or  blow  a  whistle  at  such  places  in 
<leterinining  whether  the  company  operated 
its  train  with  due  care ;  but  the  mere  fact 
that  the  statute  was  not  complied  with  does 
not  necessarily  imply  ncj;ligencc.  Van 
A'aden  v.  Xcw  York,  N.  H.  S^  //.  R.  Co.,  56 
//«;/  96,  30  .V.   )'.  S.  R.  300,  8  A',  v.  Supp. 

914- 

101.  How  tlin  prcsiiiiiptioii  may 
b«  r«lnitlecl.— Where  an  injury  is  com- 
mitted by  a  railroad,  the  presumption  is 
always  against  the  road,  yet  it  may  rebut 
that  presumption  by  showing  that  its  agents 
have  exercised  all  ordinary  and  reasonable 


care  and  diligence  to  avoid  the  injury  ;  or 
that  the  damage  was  caused  by  the  plain- 
tifT's own  negligence ;  or  that  the  plaintiff, 
by  ordinary  care,  could  have  avoided  the 
injury  to  himself,  although  caused  by  the 
road's  negligence.  Central  R.  Co.  v.  lirin- 
son,  8  Am.  &*  ling.  R.  Cas.  343,  64  Ga.  475. 
—Distinguished  in  Savannah,  F.  &  W. 
U.  Co.  V.  Stewart,  71  Ga.  427. — Ellis  v. 
Portsmouth  &•  R.  R.  Co.,  2  /red.  (/V.  Car.)  1 38. 
—  Di.sTiN(;ui.SHED  JN  Scott  V.  Wilmington 
&  R.  K.  Co.,  4  Jones  (N.  Car.)  432.  FoL- 
i.owKD  IN  Home  7'.  Memphis  &  C).  R.  Co., 
I  Coldw.  (Tenn.)  Ji.  N«)T  followed  in 
Gandy  t.  Chicago  &  N.  W.  R.  Co.,  30  Iowa 
420.  Quoted  in  Hull  v.  Sacrainento  Valley 
R.  Co.,  14  Cal.  3S7;  Aycock  v.  Raleigh  & 
A.  A.  L.  R.  Co., 89  N.  Car.  331.  Reviewed 
IN  Smith  V.  Hannibal  &  St.  J.  R.  Co.,  37 
Mo.  287;  Herring  v.  Wilmington  «S  R.  R. 
Co.,  10  Ired.  402 ;  Danner  v.  South  Carolina 
R.  Co.,  4  Rich.  (So.  Car.)  ^2^. —Herring  v. 
Wilmington  <S-  R.  R.  Co.,  10  fred.  (N.  Car.) 
402. — Explained  in  Aycock  z/.  Raleigh  & 
A.  A.  L.  R.  Co.,  89  N.  Car.  321.  Fol- 
LOWED  IN  Scott  V.  Wilmington  &  R.  R. 
Co.,  4  Jones  432.  Overruled  in  Deans  v. 
Wilminyion  &  W.  R.  Co.,  107  N.  Car.  686. 
Quoted  in  Hull  v.  Sacramento  Valley  R. 
Co.,  14  Cal.  387.  Reviewed  in  Zemp  v. 
Wilmington  &  M.  R.  Co.,  9  Rich.  84. 

Proof  of  the  bursting  of  a  boiler  raises  a 
presumpti(jn  of  negligence,  but  this  pre- 
sumption may  be  overcome  by  proof  of  care 
in  applying  every  test  recognized  as  neces- 
sary by  experts,  and  it  is  not  necessary  to 
show  that  every  test  known  to  experts  was 
applied.  Robinson  v.  A'ew  York  C.  &•  H.  R. 
R.  Co.,  20  lilatchf.  {U.  S.)  338.  9  Fed.  Rep. 

877. 

If  a  car  is  overturned  and  a  passenger 
thereby  injured  or  killed,  a  presumption 
arises  that  the  casualty  was  the  result  of 
negligence,  but  this  presumption  may  be  re- 
butted by  the  company  by  showing  that  the 
accident  was  such  that  human  prudence 
and  foresight  could  not  have  guarded 
against  it.  Denver,  S.  P.  &*  P.  R.  Co.  v. 
Woodward,  4  Colo,  i .  See  also  Denver.  S. 
P.  &*  P.  R.  Co.  V.  Woodward.  4  Colo.  162. 

To  rebut  a  presumption  ot  negligence 
arising  against  a  company  upon  proof  of  an 
injury  to  a  passenger,  it  is  not  necessary 
that  the  company  explain  how  the  accident 
happened.  It  is  sufficient  for  it  to  show 
that  it  employed  the  utmost  skill  and  pru- 
dence   practicable,  and   that  the   accident 


826 


NEGLIGENCE,  102. 


could  not  reasonably  have  been  discovered 
and  guarded  against.  Lvuisville,  A'.  A.  &» 
C.  A'.  Co.  V.  /ones,  28  /tw.  &*  Eng,  A'.  Cas. 
170.  108  I  mi.  551,  9  vV.  E.  Rep.  476. 

Under  tiie  Mississippi  statute  proof  of  an 
injury  by  a  railroad  \%  prima  facie  evidence 
of  a  want  of  skill  or  care,  and  entitles  the 
plaintid  to  a  verdict;  but  where  both  sides 
introduce  evidence,  then  the  rule  prescribed 
by  the  statute  does  not  apply,  and  the  case 
IS  to  be  decided  upon  the  evidence.  Farve 
V.   Louisville  ^  N.   Ji.  Co.,  42  Fed.    Rep. 

Under  Ga.  Code,  §  3033,  railroad  com- 
panies are  made  liable  for  any  damage  done 
to  persons  or  property  by  the  running  of 
locomotives  or  cars,  and  the  presumption  of 
negligence  is  against  the  company;  and 
this  presumption  is  not  rebutted  by  proof 
that  an  engineer,  through  a  spirit  of  re- 
venge, blew  a  whisJeon  purpose  to  frighten 
plaintiff's  horse.  Georgia  R.  Co.  v.  New- 
some,  60  Ga.  493. 

102.  Burden  of  proof,  when  on 
plalutift*. — He  who  seeks  a  recovery  for 
an  injury  caused  by  the  alleged  negligence 
of  the  defendant  must  prove  not  only  that 
he  has  suffered  loss  by  the  defendant's  act 
or  omission,  but  also  that  the  act  or  omis- 
sion was  a  violation  of  duty  required  of  him. 
Hot  Springs  R.  Co.  v.  Newman,  36  Ari:  607. 
Belirens  v.  Kansas  Pac.  R.  Co.,  8  Am.  &* 
Eng,  R.  Cas.  184,  5  Colo.  400.  Case  v.  C/ii- 
cago.  A'.  /.  (S-  P.  R.  Co. ,  69  Io7ua  449,  29  IV. 

IV.  Rip.  596;  affirming  64  Io7ca  762.  Stale 
V.  Philadelphia,  IV.  (S^  P.  R.  Co.,tsAm.  &* 
Eng.  R.  Cas.  481,60  A/d.  555.  Witting  v. 
St.  Louis  (S-  S.  F.  R.  Co.,  45  Am.  S-  Efig.  R. 
Cas.  369,  loi  ilfo.  631,  14  S.  VV.  Rep.  743. 
O'Malley  v.  Missouri  Pac.  R.  Co.,  53  Am.  &* 
Eng.  R.  Cas.  280,  113  A/o.  319,  20  S.  IV. 
Rep.  1079.  Leduke  v.  St.  Louis  &•  /.  M. 
R.  Co.,  4  A/o.  App.  485.  Alyers  v.  Snyder, 
Bright.  N.  P.  (/'<i.)  489.  Norfolk  &-  W.  R. 
Co.  V.  Ferguson.  79  Va.  241.  —  Quoting 
Dun  V.  Seaboard  &  R.  R.  Co.,  78  Va.  645.— 
Quoted  and  followed  in  Sheeler  v. 
Ciiesapeakeot' O.  R.Co.,  81  Va.  \%%.— Sheeler 

V.  Chesapeake  ^^  0.  R.  Co.,  81  Va.  188.-- 
Quoting  and  following  Norfolk  &  W. 
R.  Co.  V.  Ferguson,  79  Va.  248. — Richmond 
&•  D.  R.  Co.  V.  A/of, It.  88  Va.  785.  14  S.  E. 
Rep.  370.  Stiffen  v.  Chicago  .2-  A^.  IV.  R. 
Co.,  46  Wis.  359,  21  Am.  Ry.  Rep.  385. 

And  for  this  purpose  he  'iiust  show  the 
circumstances  under  which  it  occiiin-d.  If 
from  the  circumstances  it  appears  iliat  the 


fault  was  mutual,  or  that  contributory  neg- 
ligence  is  fairly  imputable  to  him,  he  has  by 
showing  them  disproved  his  right  to  recover. 
Denver,  S.  P.  &*  P.  R.  Co.  v.  Pickard,  18 
Am.  6-  Eng.  R.  Cas.  284,  8  Colo.  163,  6  Pac, 
Rep.  149. 

The  onus  probandi  with  respect  to  some- 
thing more  than  simple  negligence  is  upon 
the  plaintifT,  and  there  should  therefore  be 
made  apparent  something  more  than  a 
mere  conjectural  probability  of  the  commis- 
sion of  the  wrong  imputed  :  there  must  be 
some  element  of  moral  certainty  and  exclu- 
sion of  reasonable  doubt.  Atagnin  v.  Dins- 
more,i  J.  &*  S.  (.V.  V.)  512.— Following 
Payne  v.  Forty-Second  St.  R.  Co.,  8  J.  &  S. 

If  the  evidence  shows  that  the  injury 
may  have  resulted  from  one  of  two  causes, 
only  one  of  which  was  due  to  defendant's 
negligence, and  the  inference  that  the  injury 
resulted  from  the  one  cause  is  no  stronger 
than  that  it  resulted  from  the  other,  the 
plaintifl  has  failed  to  make  out  his  case, 
and  it  is  not  competent  for  the  court  to 
leave  the  question  to  the  jury.  Hughes  v. 
Cincinnati  Southern  R.  Co.,gi  Ay.  526,  16 
S.  W.  Reji.  275.  —Quoting  Cotton  v. 
Wood,  8  C.  B.  N.  S.  568;  Hayes  7/.  Ferry  R. 
Co.,  97  N.  Y.  259. 

Where  the  evidence  leaves  the  cause  of 
an  injury  unproved,  it  cannot  be  attributed 
to  defendant's  negligence  or  fault.  Sauer 
V.  Union  Oil  Co.,  43  La.  Ann.  699,  9  So, 
Rep.  566, 

The  burden  of  proof  is  upon  the  plaintifl 
to  show  that  he  was  exercising  ordinary 
care  and  diligence  at  the  time  of  the  acci- 
dent, and  he  is  required  to  prove  that  fact 
by  a  preponderance  of  the  evidence.  North 
Chicago  St.  R.  Co.  v,  Louis,  138  ///.  9,  27  N. 
E.  Rep.  451  ;  reversing  35  ///.  App.  477. 

The  burden  is  upon  plaintifl  to  show  not 
only  that  he  was  in  the  exercise  of  due  care, 
but  that  defendant  was  guilty  of  a  want  of 
care.  Chicago  City  R.  Co.  v.  Lewis,  5  /// 
App.  242. 

Where  the  charge  of  negligence  is  a  gen- 
eral one,  the  particular  act  of  negligence 
leading  to  the  injury  is  a  mait»";r  of  proof. 
Allcnder  v.  Chicago,  R.  I.  &••  P.  R.  Co. ,  37 
/o^oa  264,  8  Am.  Ry.  Rep.  1 1 5. 

It  is  not  incumbent  on  the  plaintiff  after 
proving  an  accident  which  implies  nejili- 
gencc  to  go  further  and  to  show  what  the 
particular  negligence  was  when  from  tin; 
ciicunislanv;'.;s  it  is  not  in   iiis  power  to  do 


rr- 


NEGLIGENCE,  10»,  104. 


827 


80.  Gulf,  C.  &-  S.  F.  R.  Co.  V.  Smith,  74 
Tex.  276,  1 1  5.  W.  Kefi.  1 104. 

Where  it  does  not  appear  from  the  plead- 
ings and  evidence  tiiat  the  car  by  which 
plaintiff  was  injured  was  in  use  by  defend- 
ant, and  where  it  is  nut  shown  that  the  car 
was  running  on  defendant's  railway,  and 
v'here  the  connection  between  defendant 
and  those  in  charge  of  the  car  is  not  shown, 
plaintifl  cannot  recover.  Edmunds  v.  St. 
Louis  li.  Co.,  3  Mo.  App.  602. 

Where  a  passenger  sues  for  a  personal  in- 
jury, it  is  not  always  enough  to  prove  the 
injury  alone,  but  it  devolves  upon  him  to 
siiow  negligence  on  the  part  of  the  com- 
pany, unless  the  injury  results  from  a  cause 
which  ordinarily  exists  only  by  reason  of 
negligence.  So  where  a  passenger  attempts 
to  enter  a  train  at  night  which  is  standing 
still,  and  is  injured  by  walking  off  the  car 
platform  by  reason,  as  alleged,  of  it  not 
being  sufficiently  lighted,  proof  of  these 
facts  alone  is  not  sufficient,  as  the  court 
cannot  say  that  such  accidents  are  ordinarily 
caused  only  by  negligence.  C/iicai^o,  St.  L. 
&*  X.  O.  A'.  Co.  v.  Trotter.  60  Miss.  442. 

lO^I.  Burden  of  proof,  wlioii  011 
dct't'iidaiit.  —  When  plaintiff  has  shown 
injury  to  himself  without  fault  on  his  part, 
it  is  incumbent  on  defendant  to  show  tliat 
the  injury  did  not  result  from  the  want  of 
ordinary  and  reasonable  care  and  diligence 
on  the  part  of  its  servants  and  agents. 
Central  A*.  Co.  v.  DeBray.  7 1  Ga.  406. 

After  proof  of  an  accident  and  a  resulting 
injury  the  burden  of  proof  is  upon  the  de- 
fendant, and  to  relieve  it  from  liability  it  is 
incumbent  upon  the  company  to  show  that 
the  accident  happened  from  causes  over 
which  it  had  no  control.  Keedw.  Acnj  York 
C.  A'.  Co.,  56  /,\irt>.  (A'.   V.)  493. 

The  court,  among  other  pertinent  instruc- 
tions, told  the  jury  that  if  the  plaintiff's 
"  injury  was  occasioned  by  an  act  which, 
with  proper  care,  or  by  machinery  wjiich, 
with  |)roper  use  and  care,  would  not  ordi- 
narily produce  damage,"  tlicn  the  burden 
was  on  the  defendant  to  prove  that  it  was 
not  chargeable  with  negligence.  J/e/d,  that 
this  was  clearly  sufFicient  and  in  harmony 
with  numerous  decisions  of  this  court. 
li'nntt  V.  lia/iii^'/t  &^  G.  K.  Co.,  1 08  N.  Car. 
462.  13  S.  E.  Rep.  209. 

Under  Tenn.  Code,  "  1167,  where  a  com- 
pany is  sued  for  an  accident  on  us  road,  the 
burden  is  on  the  company  to  show  tiiat  the 
precautions   required    by   the   statute  ha\c 


been  observed ;  and  the  inquiry  is  not 
whether  the  accident  was  produced  through 
a  failure  to  observe  such  precautions,  but 
whether  the  company  was  observing  the 
precautions  at  the  time  of  tlie  accident. 
Smith  v.  Nashville  &»  C.  R.  Co.,  6  Coldw. 
(Tenn.)  589.— Disapproved  in  Louisville 
&  N.  R.  Co.  V.  Conner,  2  liaxt.  (Tenn.)  382. 

When  a  party  is  confessedly  guilty  of 
legal  negligence,  or  when  it  is  so  proved  by 
the  evidence,  the  burden  devolves  upon  him 
to  bring  himself  within  some  recognized  ex- 
ception to  the  legal  presumption.  Carrico 
v.  West  rirj;inia  C.  (S-  /^  R.  Co.,  $2  Am. 
&'  Eng.  R.  Cts.  393.  35  IV.  Va.  389,  14  S. 
E.  Rep.  12. 

The  burden  is  first  on  the  plaintiff  to 
prove  the  defendant's  negligence,  and,  the 
evidence  of  this  being  offered,  the  burden 
is  then  on  the  defendant  to  prove  the  con- 
tributory negligence  of  the  plaintiff.  Erech 
V.  Philadelphia,  lV.&*n.  R.  Co.,  39  Md.  574, 
10  Am.  Ry.  Rep.  474.  State  v.  Baltimore  &* 
P.  R.  G».,  1 5  Atn.  &*  Eng.  R.  Cas.  409,  58  Md. 
482.  Thompson  v.  North  Mo.  R.  Co.,  5 1  Mo. 
190,  3  Am-  Ry.  Rep.  492.— Approvku  in 
Crane  v.  Missouri  Pac.  R.  Co.,  25  Am.  & 
Eng.  R.  Cas  440,  87  Mo.  588,  Gram  v. 
Northern  Pac.  R.  Co.,  1  N.  Dak.  252.  Fol- 
lowed IN  Loyd  V.  Hannibal  &  St.  J.  R. 
Co.,  53  Mo.  500  Pettv  V.  Hannibal  &  St. 
J  R.  Co.,  88  Mo.  lod.—Stepp  v  Chicaj,ro,  R. 
/  &-  P.  R.  Co.,  85  Mo.  229.  Murray  v. 
Missouri  Pac.  R.  Co.,  loi  Mo.  236,  135.  IV. 
Rep.  817.  Bluedornv.  Missouri  Pac.  R.  Co., 
io8  Mo.  439,  18  5.  H\  Rep.  1103. 

4.  iAstructions. 

104.  Duty  of  tliu  court  nH  to  in- 
Ktructioiis. — The  instructions  in  an  ac- 
tion for  negligence  should  confine  the  jury 
to  the  negligence  alleged  in  the  petition. 
Dahlstrom  v.  .SV.  Louis,  I.  M.  &*  S  R.  Co., 
35  .•////.  &*  Ent:.  '''"•  Cas.  387,  96  Mo.  99.  8  .9. 
W.  Rep.  777,  15  West.  Rep.  85.  Schlereth  v. 
Missouri  Pac.  R.  Co.,  96  Mo.  509,  10  S.  W. 
Rep.  66. 

The  evidence  on  the  part  of  the  plaintiff 
must  be  directed  to  the  proof  of  the  facts 
alleged,  and  the  instructions  of  the  court 
must  be  confined  to  the  allegations  and 
proofs.  It  is  the  law  arising  upon  those  al- 
legations and  upon  the  evidence  offered  to 
sustain  them  which  the  court  is  to  give 
to  the  jury.  It  is  the  facts  thus  ascer- 
tained and  the  law  applicable  to  them  that 
will   aiitlioMze   a   verdict.       Woodward    v. 


'V^;!k 


628 


NEGLIGENCE.  lOff. 


it 


I 


Oregon  R.  &*  N.  Co.,  iS  Oreg.  289.  22  Pac. 
Rep,  1076. 

Where  the  declaration  sets  forth  several 
particulars  in  respect  tu  which  it  aile(>;es 
ncKli(j;ence,  the  court  in  charging;  the  jury 
may  confine  its  instructions  to  those  par- 
ticulars on  which  the  plaintifT  insists  at  the 
tri:tl,  and  upon  which,  according  to  the  evi- 
dence, the  merits  o(  the  case  depend,  and 
may  treat  the  others  as  not  involved  in  the 
controversy.  Crawford  v.  Georgia  Pac.  R. 
Co.,  86  Ga.  5,  12  S.  E.  Rep.  176. 

Where  the  evidence  is  conflicting,  and  the 
negligence  charged,  if  proved  at  all,  is  a  fact 
strongly  disputed  by  the  proof  on  behalf  of 
defendant,  instructions  should  not  only 
state  the  hiw  accurately,  but  should  also  be 
applicable  to  the  evidence.     Peoria,  D.  &* 

E.  R.  Co.  V.  Wagner,  18  ///.  App.  598. 

It  is  not  the  province  of  the  judge  to  ask 
the  jury  to  say  whether  this  or  that  omis- 
sion in  itself  constituted  negligence,  but  to 
instruct  them  to  determine  from  all  the  evi- 
dence, and  under  the  circumstances  dis- 
closed, whether  defendant  has  been  negli- 
gent. Morsemann  v.  Manhattan  R.  Co.,  32 
N.  y.  S.  R.  61.  10  N.  Y.Supp.  105. 

It  is  error  in  charging  the  jury  on  the 
question  of  negligence  not  to  define  what 
negligence  would  and  what  would  not  render 
the  company  liable.  Pittsburgh,  Ft.  W.  6- 
C.  R.  Co.  V.  Evans,  53  Pa.  St.  250.— Quoted 
IN  Stone  V.  Oregon  Citv  Mfg.  Co.,  4  Oreg. 

52. 

It  is  not  proper  for  a  trial  judge  in  charg- 
ing a  jury  to  attempt  to  define  duties,  neg- 
lect of  which  would  be  negligence,  in  the 
absence  of  a  statutory  definition  of  duties 
which,  when  disregarded,  arc  negligence  as 
a  matter  of  law.  The  judge  siiould  inform 
the  jury  as  to  the  degree  of  care  or  skill 
whici)  the  law  demands  of  the  party  and 
what  duty  it  devolves  on  him,  and  the 
province  of  the  jury  is  to  find  from  the 
facts  in  ( vidence  whether  that  duty  has 
beerj  done.  Missouri  Pac.  R.  Co.  v.  Lee,  35 
Am.  &*  Eng.  R.  Cas.  364,  70  Tex.  496,  7  S. 
IV  Rep.  857.— Followed  in  Gulf,  C.  &  S. 

F.  R.  Co.  V.  Anderson,  42  Am.  &  Eng.  R. 
Cas.  160,  76  Tex.  244,  13  S.  W.  Rep.  196. 

In  an  action  for  wilful  or  gross  negli- 
gence in  which  the  court  directs  only  a 
special  verdict,  the  failure  of  the  court  to 
instruct  the  jury  as  to  what  is  ordinary 
and  what  is  wilful  or  gross  neglect  is  no  er- 
ror, because  when  all  the  facts  are  found  by 
the  jury  this  is  a  question  of  .law  properly 


reserved  by  the  court  under  section  317  of 
the  Cofle.  U  'itty  v.  Chesapeake,  O.  <S-  S.  W. 
R.  Co.,  83  A>.  21. 

ion.  Wiiiit  iii8triietiuiiH  nre  prop- 
er.— (I)  General  rules. — In  an  action  to  re- 
cover for  injuries  received  by  reason  of  the 
negligence  of  defendant,  in  a  case  where  the 
liitter  should  exercise  the  highest  degree  of 
care,  the  jury  may  properly  be  instructed 
that  defendant  should  liave  exercised  ex- 
traordinary care,  as  that  does  not  differ  from 
the  phrase  greatest  care — utmost  care,  high- 
est degree  of  care.  Toledo,  IV.  &•  IV.  R. 
Co.  v.  Baddeley,  54  ///.  19. 

It  is  no  objection  to  an  instruction  that  it 
fails  to  define  what  might  or  might  not  con- 
stitute negligence  under  certain  claimed 
theories  of  proof,  where  no  fundamental 
principle  or  indispensable  condition  to  a  re- 
covery is  omitted.  Neither  is  it  error  in 
such  an  instruction  to  omit  matters  merely 
suppletory  in  their  character  which  might 
properly  be  presented  in  a  separate  instruc- 
tion. Peoria  6-  P.  U.  R.  Co.  v.  Clayberg, 
IS  Am.  <S-  Eng.  R.  Cas.  356,  107  ///.  644. 

Where  an  instruction  merely  lays  down 
the  general  principles  relating  to  the  care 
that  railroad  employes  must  exercise  to 
avoid  injuries  to  others,  it  is  not  error  to 
fail  also  to  state  the  amount  of  care  that  the 
plaintiff  must  exercise.  Chicago  &•  A,  R. 
Co.  V.  Woolrii^e,  32  ///.  App.  237. 

Under  Miss.  Code,  §  1059,  proof  of  an 
injury  by  the  operation  of  a  locomotive  or 
cars  raises  a  presumption  of  negligence ; 
but  where  all  of  the  facts  attending  the  in- 
jury are  in  evidence,  it  is  proper  to  instruct 
the  jury  that  they  are  to  decide  the  question 
of  negligence  from  the  evidence.  Vicks- 
burg  S^  M.  R.  Co.  v.  Phillips,  64  Miss.  693, 
2  So.  Rep.  537. 

Where  there  is  no  evidence  of  negligence, 
it  is  not  error  for  the  court  to  instruct  the 
jury  to  that  effect.  Dunn  v.  Cass  Ave.  &^ 
F.  G.  R.  Co.,  98  Mo.  652,  1 1  S,  W.  Rep.  1009. 
— Dlstinouishing  Winkler  v.  St.  Louis,  I. 
M.  &  S.  R.  Co.,  21  Mo.  App.  99. 

In  charging  the  jury  that  the  evidence  to 
establish  contributory  negligence  on  the 
part  of  the  plaintifT  must  be  clear  and  con- 
vincing, there  was  no  appealable  error  on 
the  judge's  part  in  failing  to  add  that  the 
evidence  to  establish  negligence  against  de- 
fendant must  also  be  clear  and  conclusive. 
White  V.  Augusta  &»  K.  R.  Co.,  30  So.  Car. 
218.  9  5.  £.  Rep.  96. 

(a)  Illustrations.  —  One  of  the  instruc- 


NEGLIGENCE,  105. 


889 


tions  given  was  that  "  it  is  not  for  the  court 
to  .select  from  the  evidence  a  statu  of  (acts 
and  circuiiistanccs,  and  instruct  tiie  jury 
tiiat  the  existence  of  these  constitute  ne^h- 
j{<iice,  or  the  absence  of  them  dilif;ence," 
and  lliat  negligence  or  diligence  was  a  (|ues- 
tion  of  tact  for  the  jury.  Helii,  not  error, 
where  the  instruction,  taken  in  connection 
with  others,  must  be  construed  to  mean 
that  the  jury  were  the  judges  of  whether  de- 
fendant had  exercised  due  care  or  had  been 
negligent.  Central  R.^r*  B,  Co.s.  Nasli,^\ 
Gil.  5S0,  7  S.  E.  Hep.  808. 

The  court  charged  that  "  proof  of  other 
acts  of  negligence  will  not  authorize  a  re- 
covery unless  the  jury  be  satisfied  fror.i  •he 
evidence  that  the  negligence  charged  lias 
been  proved  ;  or,  if  several  acts  of  negligence 
be  charged,  that  one  or  more  of  them  has 
been  proved  and  shown  to  have  occasioned 
the  disaster."  Defendant  objected  on  the 
ground  that  it  told  the  jury  that  other  acts 
of  negligence  than  those  ciiarged  would 
authorize  a  recovery.  Held,  that  the  word- 
ing of  tlic  instruction  is  not  to  be  recom- 
mended, but  it  is  not  open  to  the  objection 
made.  Central  K.  &*  B.  Co.  v.  Nash,  81  Ga. 
580,  7  S.  E.  Rep.  808. 

The  court  in  some  of  its  instructions  put 
the  case  that,  if  the  accident  happened  with- 
out "  fault "  on  the  part  of  plaintiff,  etc.  It 
was  urged  that  the  words  "ordinary  care" 
should  have  been  used  in  place  of  tlie  word 
fault.  Held,  that  the  word  used  did  not 
change  the  sense  or  meaning  of  the  instruc- 
tions, and  did  not  make  them  erroneous. 
Chicago  &*  A".   IV.  B.  Co.  v.  Bjfan,  70  ///. 

31  I. 

The  court  instructed  the  jury  that  certain 
omissions  on  the  part  of  the  defendant,  if 
found  from  the  evidence,  were  "  culpable  " 
negligence.  Held,  no  error,  as  the  word 
"  culpable  "  was  used  in  the  sense  of  "  blam- 
able."  Peoria  &"  P.  U.  R.  Co.  v.  Clayberg-, 
15  Am.&'  Eng.  R.  Cas.  356.  107  ///.  644. 

Plaintiff  sued  for  injuries  to  his  team  by 
colliding  with  an  engine.  The  court  in- 
structed the  jury  that  they  should  find  for 
the  plaintiff  if  the  engineer,  by  the  exer- 
cise of  ordinary  care,  might  have  seen  the 
horses  in  time  to  have  avoided  the  injury. 
It  was  objected  that  this  instruction  as- 
sumed that  it  was  the  duty  of  the  engineer 
to  keep  a  lookout  regardless  of  his  other 
duties.  Held,  that  the  term  "ordinary 
care"  in  keeping  a  lookout  would  mean 
such  as  the  engineer  could  exercise  in  con- 


nection with  his  other  duties,  and  was. 
therefore,  correct,  /ll/noi's  C.  B.  Co.  v. 
Burns,  32  ///.  ////.  ic/i. 

The  court  instructed  the  jury  that 
"where  there  has  been  mutual  negligence," 
etc.,  the  plaintilT  cannot  recover.  It  was 
urged  by  the  defendant  that  the  wotd 
"mutual"  as  thus  used  was  erroneous  in 
that  it  referred  to  the  degree  of  ne^'linciui-. 
Held,  otherwise,  and  that  it  simplv  ex- 
pressed the  idea  of  reciprocal  or  contnlni- 
tory  negligence.  Hamilton  v.  Hts  .Moines 
Valley  R.  Co.,  36  Iinva  31. —  Fdi.i.owinc. 
Haley  v.  Chicago  &  N.  \V.  R.  Co.,  21  Iowa 

'5- 

A  court  instructed  a  jury  that  negli- 
gence, like  other  facts,  may  be  established  by 
showing  facts  and  circumstances  bearing, 
more  or  less  directly,  upon  the  fact  of  neg- 
ligence. Held,  that  the  instruction  defined 
the  character  of  the  evidence  rather  titan 
its  weight  and  effect,  and,  when  taken  in 
connection  with  other  instructions  given, 
was  not  erroneous.  Baker  v.  Chicago,  B, 
&-  Q.  R.  Co.,  73  Iowa  389,  35  N.  W.  Rep. 
460. 

The  court  charged  the  jury  (1)  that  the 
burden  of  proof  was  on  plaintiff  to  show 
that  defendant  was  negligent ;  (2)  that 
such  negligence  caused  the  injury;  (3)  that 
the  fact  that  an  accident  occurred  is  not 
negligence  unless  the  nature  of  the  accident 
is  such  that  it  could  not  have  happened 
without  negligence  ;  (4)  that  if  it  appeared 
that  the  accident  might  have  happened 
from  some  cause  which  the  company  could 
not  guard  against,  then  it  was  for  the  plain- 
tiff to  show  that  it  did  not  happen  from 
such  cause,  but  from  the  negligence  of  de- 
fendant. The  court  further  charged  that 
the  burden  was  on  the  defendant,  and  to  re- 
lieve it  from  liability  it  must  show  that  the 
accident  happened  from  causes  over  which 
it  had  no  control.  Held,  that  the  charge  as 
a  whole  was  as  favorable  to  the  defendant  as 
it  was  entitled  to,  under  the  law.  Reed  v. 
New  York  C.  R.  Co.,  56  Barb.  (A'.  Y.)  493. 

Defendant  company  was  repairing  its 
elevated  track,  when  a  crowbar  fell  and  in- 
jured plaintiff,  who  was  on  the  street  below. 
The  court  charged  the  jury  that  "you  must 
say  whether  the  railroad  company  has  used 
ordinary  and  reasonable  care  in  performing 
this  work.  Has  it  neglected  the  precau- 
tions which  reasonable  and  prudent  people 
would  have  taken  to  prevent  an  accident 
similar  to  the  one  upon  which  you  have  to 


\l 


ill 


830 


NEGLIGENCE,  I06. 


jniss  ?  "  Held,  that  this  was  not  objcctiona- 
hlc  as  inviting  the  jury  to  make  allirniative 
sui;)4csti()ns  as  to  possible  safeguards  wliich 
niiglit  liave  been  supplied.  Morieiiuxnn  v. 
MaiiliiUtan   l\\   Co.,  i6  Daly  249,  10  A'.  J'. 

Supp.  105.  33  ;>/.  Y.  s.  a:  61. 

A  moving  tr:\in  siri'cit  a  cart  and  threw 
it  forward  againf'i  plain  .itT's  intestate,  who 
was  standing  on  tiic  sfeet,  but  in  a  position 
not  to  be  injured  i>y  the  train  itself,  causing 
iiis  death.  //M,  that  it  was  proper  to 
charge  the  jury  that,  if  a  sudden  jind  in- 
stinctive edort  on  the  part  of  the  driver  of 
tlie  cart  to  escape  impending  danger  re- 
sulted in  the  accident,  and  there  was  not 
time  to  form  an  intelligent  and  deliberate 
judgment  as  to  the  best  means  of  escaping, 
then  negligence  was  not  imputable  to  him. 
t/..'//  V.  New  ]'orjt  C  <S-7/.  A'.  A\  Co.,  11  A\ 
y.  Siipf>.  80.  16  Daly  313.  32  A':  )'.  5.  A'. 
612;  affirmed  in  126  A'.  Y.  629,  tnem.,  27  N. 
E.  Rep,  410,  mcin.,  36  A'.  Y.  S.  A'.  1012, 
mem. 

It  is  not  error  to  charge  a  jury  that  "a 
railroad  company  contracts  that  the  road  is 
equipped  and  run  according  to  the  f)resent 
state  of  the  art.  They  are  liable  if  the  in- 
jury miglit  have  been  avoided  by  the  ut- 
most care  and  skill  on  the  part  of  their  ser- 
vants. If  the  injury  occurred  by  running 
faster  than  a  prudent,  skilful  conductor 
would  then  have  run,  or  from  an  obstruc- 
tion which  the  conductor  saw,  or  might 
have  seen  if  he  had  looked  in  the  proper 
direction,  or  might  have  avoided  by  the 
most  skilful  and  prompt  use  of  all  the 
means  in  his  power,  the  company  would  be 
liable."  Nashville  &•  C.  A'.  Co.  v.  Alessino,  i 
Sneed  ( Tenn. )  220. 

100.  What  iiiHtriictions  are  im- 
proper.—(«)  General  rules. — An  instruc- 
tion is  erroneous  which  attempts  to  defi.ie 
the  character  and  degree  of  negligence 
which  would  authorize  a  recovery  for  an 
injury,  but  omits  the  essential  qualification 
that  the  negligence  upon  which  a  recovery 
must  b'^  based  is  such  only  as  contributed 
to  the  injury.  Chicago  «S-  A'.  IV.  K,  Co.  v. 
Carroll,  1 2  /.'/.  Afip.  643. 

Where  one  instruction  is  given  authorize 
ing  a  recovery  against  a  railroad  company 
for  injuries  caused  by  negligence  of  its  ser- 
vants which  contains  no  requirements  of 
care  or  caution  on  the  part  of  the  injured 
party,  the  error  will  not  be  cured  by  other 
instructions  wtiich  do  contain  such  require- 
ment.   Peoria  &•  P.  U.  K.  Co.  v.  O'Brien, 


18  ///.  App.  28.— Following  Chicago,  B. 
&  g.  R.  Co.  V.  Harwood,  80  111.  88. 

Where  a  complaint  is  filed  in  an  arcion 
for  negligently  causing  death,  and  it  states 
negligence  on  several  dilTcrent  grounds,  it 
is  error  for  the  court  in  charging  the  jury 
substantially  to  copy  the  petition  as  to  the 
charges  of  negligence.  The  grounds  of 
negligence  should  be  pointed  out  morn 
spccitically,  and  the  jury  directed  to  inquire 
as  to  these  only.  Gorman  v.  Minneapolis 
«S-  St.  L.  R.  Co.,  78  Iowa  509,  43  A^.  IV. 
Kep.  303. 

An  instruction  whose  efTect  is  to  declare 
that  the  happening  of  an  accident  under 
given  circumstances  is  conclusive  evidence 
of  negligence  is  erroneous.  Clay  v.  Chi- 
cago &>  A.  A'.  Co.,  17  Mo.  App.  629. 

Where  injury  is  caused  by  a  failure  of  the 
railroad  company  to  use  ordinary  care  in 
moving  its  trains  or  cars,  it  is  liable  unless 
there  be  contributory  negligence  by  the 
person  injured.  Hence  it  is  error  to  charge 
the  jury  that  the  company  is  liable  only  for 
gross  negligence,  where  it  may  have  been 
understood  by  the  jury  that  this  term  was 
used  as  the  equivalent  of  fraud  or  inten- 
tional wrong,  and  not  as  meaning  the  want 
of  the  ordinary  care  required  under  all  the 
circumstances  of  the  case.  Meei  v.  Pennsyl- 
vania Co.,  13  Am.  S-  Eng.  A'.  Cas.  643,  38 
Ohio  St.  632.— Quoted  in  Cogswell  v.  ^Vest 
St.  &  N.  E.  Elec.  R.  Co.,  5  Wash.  46. 

If  the  headlight  of  a  train  running  -M. 
night  is  so  obscured  by  rain  or  other  nat- 
ural causes  that  the  "  lookout "  cannot  see 
ahead,  there  being  no  defect  in  the  head- 
light or  fault  on  the  part  of  those  in  charge 
of  the  train,  it  is  error  to  instruct  the  jury 
that  the  company  is  without  doubt  more 
liable  for  all  the  consequences  because  of 
running  the  train  on  such  a  night.  Louis- 
ville &•  N.  R.  Co.  v.  Melton,  2  I.ea  {Tenn.) 
262.— Quoted  in  Memphis  City  R.  Co  v. 
Logue,  1 3  Lea  32.     . 

It  is  error  to  give  a  charge  which  in  effect 
asserts  that  it  is  negligence  for  a  porter  on 
a  railway  train  to  close  the  doors  of  the 
company's  cars  without  giving  warning  of 
his  intention  to  do  so  in  advance.  Galves- 
ton, H.  &*  S.  A.  R.  Co.  V.  Davidson,  21  Am. 
&•  Etig.  R.  Cas.  431,  61  Tex.  204. 

While  a  custom  among  raihvay  companies 
as  to  the  crew  put  in  charge  of  a  train  is 
competent  evidence,  it  seems  to  be  error 
to  charge  the  jury  so  that  they  may  believe 
a  departure  from  such  custom  is  negligence. 


NEGLIGENCE,  107. 


831 


Whether  negligence  exists  should  be  deter- 
mined by  the  jury  upon  the  facts  lound  also 
by  thcni.  Giil/,  C.  &•  S.  /•".  A'.  Co.  v.  Comp- 
ton,  44  Am.  &*  Kng.  R.  Cas.  637,  75  Tex, 
667,  13  .S".  ir.  Nip.  667. 

(2)  Ulustralions.  — In  an  action  by  a  fe- 
male passenger  to  recover  lor  injuries  re- 
ceived in  alighting  from  a  train,  the  court 
instructed  the  jury  to  find  for  plaintifi 
if  they  found  that  she,  without  negligence 
on  her  part,  was  injured  through  the  fault 
or  negligence  of  the  company.  Helit,  that 
the  instruction  was  objectionable  as  being 
too  general.  It  should  have  called  atten- 
tion to  the  specific  acts  of  negligence 
charged  in  the  declaration.  .SV.  Lou.-'s,  A, 
&•  T.  H.  R.  Co.  V.  Herder,  9  ///.  A  pp.  341. 

Where  the  declaration  alleged  that  the 
plaintif!,  through  defendant's  negligence, 
fell  and  received  injuries  to  he  arm  and 
shoulder,  and  does  not  charge  any  abnor- 
mal change  of  condition,  or  any  more  than 
might  happen  from  any  serious  injury  to  a 
sick  or  well  person,  and  raises  no  inference 
that  plaintiff  before  the  injury  was  robust 
or  weak,  sound  or  unsound,  and  the  evi- 
dence shows  that  the  injury  occurred  as 
alleged,  an  instruction  that  if  the  jury  be- 
lieve that  plaintifT's  arm  nd  shoulder  were 
weak  and  disabled  before  the  accident  as 
the  result  of  sickness,  and  that  she  cannot 
recover  under  the  declaration  for  such  dis- 
ahiiity  or  any  aggravation  of  the  same  pro- 
duced by  the  accident  in  question,  is  properly 
refuset',  although  defendant  has  introduced 
evidence  tending  to  show  that  phiintiflF, 
when  a  child,  suffered  a  severe  illness  which 
left  her  right  arm  and  shoulder  disabled  and 
intirm.  Canfield  v.  CliKago&'W.  Af.  R.  Co., 
41  Am.  <S-  Eng.  R.  Cas.  566,  78  .\fh/i.  356,  44 
JV.  IV.  Rep.  385.— DlSTlNGUlsHlNc,  Wilkin- 
son V.  Detroit  3.  &  S.  Works,  73  Mich.  405. 

A  charge  which  permits  the  jury  in  a 
negligence  case  to  infer  malice  on  the  part 
of  the  defendant  toward  plaintifT's  employer 
in  setting  a  car  in  motion  on  defendant's 
own  land,  which  ran  against  cme  which 
piainttfT  was  unloading  and  injured  him, 
from  the  fact  that  defendant  belirved  at  the 
time  of  the  accident  that  plaintiff's  em- 
ployer was  owing  him  for  rent,  to  recover 
which  he  afterwards  commenced  a  suit, 
cannot  be  susti'ined.  McCalhtm  v.  David- 
SON,  95  A/icA.  382.  54  ;/.   U^.  Rtp.  952. 

Plaintifi  sued  forthedestructioiiof  abuild- 
ing  by  sparks  from  an  engine,  and  charged 
the  company  with  negligence  in  overloading 


its  trains,  whereby  they  often  stalled  on  an 
up  grade  opposite  the  building,  and  in  the 
effort  to  move  the  trains  great  showers  ot 
sparks  were  thrown  out.  Held,  that  an  in- 
struction which  allowed. the  jury  to  predi- 
cate negligence  on  the  fact  alone  that  the 
trains  were  sometimes  heavy  and  stalled 
was  erroneous.  Flinn  v.  Neiu  York  C.  &* 
H.  R.  R.  Co.,  34  A',  y.  S.  R.  451.  58  Hun 
230,  12  N.  Y.  Sitpp.  341. 

A  charge  of  the  court  which  first  as- 
sumed a  certain  state  of  facts  as  constituting 
ordinary  negligence,  and  which  then  in- 
structed the  jury  that  "gross  negligence  is 
a  greater  or  higher  degree  of  negligence 
than  ordinary  negligence  " — held,  error,  as 
coiitaining  no  definition  of  gross  neg.igence. 
Southern  C.  P.  &*  M.  Co.  v.  Bradley,  52  Tex. 
587.— Quoted  in  Texas  &  P.  R.  Co.  v. 
Gorman,  2  Tex.  Civ.  App.  144. 

Plaintiff,  an  employe,  was  injured  while 
attempting  to  get  on  a  moving  train  which 
carried  him  from  place  to  place.  Held,x.\vaX 
it  was  error  to  give  the  jury  an  instruc- 
tion which  in  effect  made  the  liability  of 
the  company  depend,  not  upon  the  negli- 
gence of  the  one  in  charge  of  the  train,  but 
v.pon  the  terror  or  fright  of  plaintiff  from  a 
real  or  apparent  danger,  after  he  had  caui^ht 
hold  of  the  hand-rail  of  the  coach,  but  was 
unable  to  pull  himself  up ;  and  this  without 
reference  i.z  t.-  whether  the  terror  was  justi- 
fied by  \h<  ^icts  and  circumstances,  and 
whether  the  one  in  charge  of  the  train  was 
guilty  of  negligence  in  producing  such  ter- 
ror. Austin  &*  JV.  IV.  R.  Co.  v.  Beatty.  73 
Tex.  592,  1 1  5.  W.  Rep.  858. 

1 07.  Instruction  bromler  tlinn  tliu 
picadinpt.— A  plaintiff  is  confined  to  the 
acts  of  negligence  specified  in  his  declara- 
tion, and  It  is  orror  to  instruct  the  jury  that 
he  may  recover  for  other  negligence.  Chi- 
cago,  B.  <S-  Q.  R.  Co.  v.  Wells,  42  ///.  App. 
26. 

Where  the  only  negligence  averred  in  a 
suit  against  a  railroad  company  is  that  it 
ran  its  train  carelessly,  it  is  error  to  instruct 
the  jury  that  if  defendant  was  negligent  in 
its  failure  to  use  air  brakes  or  other  proper 
machinery  plaintifi  is  entitled  to  recover. 
Toledo,  W.  (S-  IV.  R.  Co.  v.  Foss,  88  ///. 
551,  21 .4m.  Ry.  Rep.  368. 

When  there  is  no  proof  of  any  other  neg- 
ligence than  that  nlleged  in  the  declaration, 
an  instruction  stating  what  is  negligence  is 
not  erroneous  in  not  confining  the  right  of 
recovery  to  the  negligence  alleged   in  the 


832 


NEGLIGENCE,  108-110. 


fVt- 


declaration.  Chicago,  B.  &-  Q.  A'.  Co  v. 
Avery.  17  Am.  «S-  Etig.  A'.  Cat.  649,  109  ///. 
314,  afi:  ititng  \o  111.  App.  210. 

lOb.  IiiHtriictioiiH  not  •Mippor  etl 
by  tilt?  evidence.— It  is  error  to  insi  .uct 
the  jury,  in  an  action  for  negligence  and 
consequent  injury,  that  if  they  beheve,  Irom 
the  evidence,  that  the  plaintiff  was  injured 
bv  the  negligence  ol  the  defendant,  as 
charged  in  the  declaration,  and  that  the 
plalritifl  was  at  the  time  in  the  exer  >e  of 
ordinary  care  and  prudence,  the  plaintiff  is 
entitled  to  recover  for  such  injury  if  tlierc 
IS  no  conflict  in  the  evidence,  which,  taken 
as  a  whole,  does  not  tend  to  show  a  right 
of  recovery.  Joliet,  A.  &•  N.  R.  Co.  v. 
Velie,  140  ///.  59,  29  A^.  E.  Rep.  706 ;  affirm- 
ing 36  ///.  App.  450. 

lOU.  Instructions  asHuniing  facts 
in  issue.— Where  the  question  of  negli- 
gence is  controverted,  it  is  error  for  the 
court  in  instructing  the  jury  to  assume  it  as 
a  f».ct.  Lakt  Shore  &-  M.  S.  R,  Co.  v.  Elson, 
1 5  ///.  App.  80.  Chicago  6-  N.  W.  R.  Co, 
V.  Snyder,  28  Am.  &*  Eng,  R.  Cas,  611,117 
///.  376.  7  N.  E.  Rep.  604,  reversing  18  ///, 
App.  640. 

An  instruction  which  in  efTect  decides  the 
question  of  defendant's  negligence  as  a 
question  of  law,  and  withdraws  the  case 
from  the  jury,  which  leaves  nothing  for 
them  to  do  but  to  sign  a  verdict  for  the  de- 
fendant, is  erroneous.  The  general  rule  is 
that  negligence  is  a  question  of  fact,  and 
not  of  law.  Davis  v.  Utah  Southern  R,  Co., 
3  Utah  218.  2  Fac.  Rep.  521. 

An  instruction  that  "if  the  jury  believe 
from  the  evidence  that  the  plaintifl,  while  in 
the  exercise  of  ordinary  care,  was  injured 
by  or  in.  conuequence  of  the  negligence,  us 
charged  in  the  declaration  or  either  one  of 
the  counts  thereof,  then  you  will  find  the 
defendant  guilty,"  does  not  assume  that  the 
defendant  was  guilty  of  negligence,  as  the 
qualifying  words  "  if  the  jury  believe  from 
the  evidence  "  apply  to  the  whole  sentence. 
Chicago  &*  /I.  R.  Co.  v.  Fisher,  141  ///.  614, 
31   N.  E.  Rep.  406  ;  affirm ip^  38  ///.  App. 

33- 

The  court  did  not  assume  negligence  in 
its  instructions  to  the  jury  by  telling  them 
that  if  they  believed  the  defendant  "  negli- 
gently "  did  certain  things,  and  the  plaintiff 
was  injured  thereby,  they  must  find  for 
plaintifl.  The  omission  of  the  word  "neg- 
ligently "  would  have  assumed  negligence. 
South  Covington  &-  C.  St.  R.  Co.  v.  IVart,  27 


Aw.  (&«•  Eng.  R.  Cas.  206,  84  A>.  267,  1  5. 
JT.  Rfp.  493. 
110.      Instructions      relative     to 

speed.— The  rate  ol  speed  at  which  a  train 
is  run  through  the  streets  of  a  city  may  be 
an  important  fact  in  determining  the  ques- 
tion of  negligence,  and  an  instruction  to 
the  contrary  is  properly  refused.  Pacific  R. 
Co.  V.  Houts,  1 2  Kan.  328. 

In  an  action  for  personal  injuries  it  is  not 
error  to  retuse  to  instruct  the  jury  broadly 
that  "  a  railroad  company  has  a  right  to 
propel  its  trams  over  its  road  at  a  reason- 
able rate  of  speed,  and  when  its  track  is  in 
a  good  and  safe  condition,  and  the  cars 
properly  equipped  and  in  safe  condition,  ex- 
cept as  to  latent  defects  which  by  the  high- 
est degree  of  skill  and  care  could  not  be  dis- 
covered. It  would  not  be  negligence  per  se  to 
run  the  train  at  a  rate  of  speed  of  forty 
miles  an  hour."  Pennsylvania  Co.  s .  Ne^u- 
meyer,  52  Am.  &•  Eng.  R.  Cas.  454,  129  /«</. 
401,  28  A'.  E.  Rep.  860. 

Under  n  petition  stating  the  specific  act 
of  negligence  to  have  been  the  high  rate  of 
speed  of  the  defendant's  train,  it  is  not  im- 
proper to  instruct  as  to  the  question  whether 
the  defendant  after  discovering  the  danger 
could,  by  exercising  reasonable  care,  have 
avoided  the  injury.  Neier  v.  Missouri  Pac. 
R.  Co.,  12  Mo.  App.  35. 

It  was  error  to  charge  that  if  the  train 
was  runi.'iiig  at  such  a  speed  thiit  it  ould 
not  be  stopped  within  the  distance  the  nead- 
liglit  would  discover  objects  upon  the  said 
road  the  jury  might  find  the  company 
guilty  of  recklessness,  notwithstanding  all 
the  prescribed  precautions  were  observed. 
Louisville  &*  X.  R.  Co.  v.  Milam,  13  Am.  &* 
Eng.  R.  Cas.  507,  9  Lea  (Tenn.)  223. 

It  is  error  to  instruct  that  the  fact  of  run- 
ning a  tram  at  a  greater  speed  than  is  per- 
mitted by  the  rules  of  the  company  is  of  it- 
self negligence,  as  this  contravenes  the  rule 
forbidding  the  trial  court  to  say  in  the  ab- 
sence of  statutory  declaration  that  any 
particular  act  or  omission  constitutes  negli- 
gence. Ft.  Worth  &*  D.  C.  R.  Co.  v. 
Thompson,  2  Tex.  Civ.  App.  170,  21  5.  W. 
Rep.  137. 

The  court  charged  in  substance  that  dC" 
fendant  had  a  right  to  travel  over  its  road 
at  pleasure,  and  at  such  rate  of  speed  as  it 
saw  fit,  but  that  circumstances  might  make 
the  exercise  of  such  right  an  element  of 
negligence ;  that  great  speed  was  not  neces- 
sarily negligence,   but  in   connection  with 


'f 


I  *'   'I 


NEGLIGENCE,  111-114. 


833 


267.  I  5. 

ivo     to 

:li  a  train 
y  may  be 
the  ques- 
ictioii  to 
Pacific  R. 

s  it  is  not 
y  broadly 

right  to 
a  reason- 
•aCk  IS  in 

the  cars 
lilion.ex- 
the  high- 
lot  be  dis- 
e  per  se  to 
i  of  forty 

V.  Naif- 
\,  129  /;/(/. 

pccific  act 

igh  rate  of 
is  not  im- 

)n  whether 
he  danger 
care,  have 

ssouri  J'lic. 

'  the  train 
lit  it   ould 

0  thp  nead- 
m  the  said 
;  company 
tanding  all 
^  observed. 
,  13  Am,&* 

223- 

fact  of  run- 
han  is  per- 
iny  is  of  it- 
lesthe  rule 

1  in  the  ab- 
1  that  any 
tutc'3  negli- 

H.   Co.   V. 
3,  21  S.  IV. 

ice  that  de- 
ver  its  road 
speed  as  it 
nigiit  make 
element  of 
s  not  neces- 
lection  with 


other  facts  and  circumstances  might  tend 
to  establish  it.  HeM,  no  error.  Salter  v. 
Utica  &'  B.  A'.  A\  Co..  8  /tw.  iS-  /:>/<,'.  A'.  Cas. 
437.  88  A\  y.  42  ;  affirming  14  Hun  494.— 
Following  Massoih  v.  Delaware  &  H. 
Canal  Co.,  64  N.  V.  531  ;  Cordcll  v.  New 
York  C.  &  11.  R.  R.  Co.,  70  N.  Y.  124.— 
.Xi'Pl.lKD  IN  Miller  V.  New  York  C.  &  H.  R. 
K.  Co.,  20  N.  Y.  Supp.  163. 

In  an  action  for  a  personal  injury  on  the 
(rrnund  of  negligence  in  running  and  opcr> 
ating  artrain  and  running  the  train  at  a  high 
:ii)(l  dangerous  rate  of  s|)ee<l,  the  court  on 
1)1  Ija.  nf  the  plainiifl  instructed  the  jury 
that,  "  I  f  such  train  was  being  run  by  the  em- 
ployes of  the  defendant  at  a  high  and  dan- 
gerous rate  of  speed,  such  ^peed  being  so 
^igll  and  dangerous  as  to  become  a  negli- 
p/  'It  nianagenieni  of  the  train,  and  that  such 
ii;'ci«leiit  resulted  in  conse«iucnce  thereof, 
the  jury  will  find  the  issues  for  the  plaintilT." 
The  proof  showed  iliat  the  train,  at  the  time 
of  the  accident,  was  running  at  the  rate  of 
forty  miles  an  hour,  and  upon  a  straight 
line,  on  which  an  animal  on  the  track  might 
have  been  seen  in  ample  time  to  have 
checked  the  train.  Held,  that  the  instruc- 
tion was  not  liable  to  the  objection  that  it 
announced  that  a  given  hi;;h  rate  of  speed 
for  a  passenger-train  was  a  dangerous  raie, 
which  would  of  itself  render  the  company 
liable  for  damages  arising  from  accident. 
ImiianapoJis,  li.  &*  IV.  R.  Co.  v.  Hall,  12 
Am.  &»  Eng.  R.  Cas.  146,  106  ///.  371. 

111.  Mi.Hlnuiiiif;  or  obHtriiri'  iii- 
NtriictioiiH.— An  instruction  "that  slight 
negligence  is  not  a  slight  want  of  ordinary 
care,  but  a  want  of  extraordinary  care,  and 
the  law  does  not  require  such  care  of  the 
person  injured  by  the  negligence  of  another 
as  a  condition  precedent  to  his  recovery,"  is 
erroneous  as  being  ohscuie,  and  calculated 
to  mislead  tlie  jury.  Ai/lle  Rod;  M.  R.  »&«• 
T.  R.  Co.  V.  //ay>ies,  28  Am.  iS^  Eng.  R.  Cas. 
572.  47  ArA:  497.  '  •S'-  "^.  A'</.  774. 

Such  expressions  is  "  slight  negligence  " 
•md  "slight  want  of  orciinary  care  "  should 
never  be  used  in  instructions  to  juries,  as 
such  expressions  tend  to  obscure  and  con- 
fuse what  should  be  stated  in  plain  and  con- 
cise language.  Omaha  St.  R.  Co.  v.  Craig, 
58  Am.  <S-  Etig.  R.  Cas.  208,  39  Neb  601,  58 
N.   IV.  Rep.  2c>9. 

It  is  misleading  and   erroneous   for  the 

court  to  instruct  the  jury  that  negligence 

remotely  co  .tribnting  to  the  injury  is  not 

material,  when  in  fact,  if  there  was  any  ncg- 

()  D.  R.  I)  —53 


ligence  at  all,  it  was  clearly  direct  and  proxi- 
mate, and  not  remote  or  far  removed  from 
the  injury.  Atchison,  T.  &■*  S.  F.  R.  Co.  v. 
Plunkctt,  zAm.  iS-  Eng.  R.  Cas.  127,  25 
Kan.  188. 

An  instruction  declaring  it  to  be  the  duly 
of  those  operating  a  train  to  keep  a  vigilant 
watch  of  the  track  ahead  that  they  might 
discover  persons  on  the  track  in  time  to 
avoid  injuring  them  is  not  objectionable  as 
being  calculated  to  mislead  the  jury  on  the 
ground  that  it  appears  from  the  evidence 
that  there  were  two  parallel  tracks  near  to- 
gether, and  that  they  w(juld  not  understand 
which  track  it  was  declared  to  be  the  duty 
of  the  trainmen  to  watch.  Pope  v.  Kansas 
City  Cable  R.  Co.,  43  Am.  >>  Eng.  R.  Cas. 
290,  99  A/o.  400,  12  S.   IV.  Rep.  891. 

112.  Necessity  of  pruyor  lor  lii- 
stnictloiis.— A  carrier  was  sued  for  the 
loss  of  goods,  and  there  was  some  evidence 
of  a  delay  in  the  shipment,  and  plaintifT 
claimed  that  the  delay  was  due  to  negli- 
gence and  should  have  been  submitted  to 
the  jury,  but  made  no  request  that  it  be  so 
submitted.  Held,  that,  in  orde."  to  have  the 
benefit  of  such  failure,  he  should  have  made 
a  distinct  request  that  the  question  be  sub- 
mitted. Stedman  v.  Western  Transp.  Co., 
48  /iarb.  (.v.   l'.)97. 

llil.  Wliiit  prayers  hIioiiIiI  I>o 
gruiited. —  In  an  action  for  damages  from 
gi3ss  negligence  of  the  servants  and  em- 
ployes of  a  railway  company  it  devolves 
upon  the  plaintifl,  in  cder  to  recover,  to 
establish  such  degree  or  character  of  negli- 
gence, and  it  is  error  in  the  court  to  refuse 
to  inst'  uci  the  jury  that  unless  gross  neg- 
lect, defining  it,  be  established  the  plaintilT 
cannot  recover.  Texas  &^  P.  R.  Co.  v.  /////, 
71   Tex.  4^1,9  S.  IV.  Rep.  351. 

The  use  of  the  word  "  accident  "  in  an  in- 
struction embodying  the  rule  of  law  that  no 
presumption  of  negligence  arises  from  the 
breaking  of  a  chain  would  not  justify  the 
court  in  refusing  the  instruction,  lirymer 
v.  Southern  Pac.  Co.,  90  Cal.  496,  27  Pac, 
Rep.  371. 

114.  What  prnycrs  may  be  properly 
rel'ilHcd.— A  charge  instructing  the  jury 
that,  if  they  believe  from  the  evidence  that 
the  defendant's  servants  in  charge  of  the 
train  at  the  time  plaintifT's  intestate  was 
killed  "were  a',  the  time  operating  the 
train  in  a  reckless  manner,  that  is,  without 
regard  to  consequences,  they  may  find  that 
the  injury  was  produced  by  wanton,  or  reck- 


I 


ir 


834 


NEGLIGENCE,  114. 


ri    •■- 


^^i   •i 


less,  or  intentional,  negligence  of  defcnfl- 
ant,"  is  properly  refused,  because  arj^uinen- 
'ative  merely.  Cnrr/ttj^fon  v.  Louisville  &* 
N.  /V.  Cu.,  4:  Am.  &*  Eng.  R.  Cas.  543,  88 
Alu.  472,  6  So.  Kep.  910. 

In  providing  against  accidents  resulting 
from  the  act  of  God,  ordinary  care  and  dili- 
gence is  all  the  law  requires  of  a  common 
carrier.  It  is  not  error,  therefore,  to  refuse 
to  charge  the  jury  that  the  defendant  carrier 
must  exercise  extreme  care  and  diligence  to 
avoid  the  consequences  of  such  an  event. 
GUesoH  V.  Virginia  Midland  A*.  Co.,  28  Am, 
«S-  Eng.  K.  Cas.  202,  5  Macl'iy  (D.  C.)  356. 

An  instruction  is  properly  refused  which 
singles  out  an  isolated  fact,  saying  that  it 
alone  does  not  constitute  wilfi  i  or  wanton 
negligence,  especially  when  the  question 
does  not  hinge  on  such  fact  alone,  and  the 
instruction  does  not  assume  to  be  predicated 
upon  the  evidence.  Pennsylvania  Co.  v. 
Conlan,  6  Am.  &•  Eng.  A'.  Cas.  243,  loi  ///. 

93- 

It  is  not  proper  to  separate  a  few  of  many 
facts  from  their  connection  with  ol..ers  by 
which  their  force  and  meaning  are,  or  may 
be,  materially  modified,  and  ask  the  court  to 
instruct  the  jury  that  these  enumerated 
facts  are  evidence  to  show  a  want  of  ordi- 
nary care  on  the  part  of  the  plaintilT  in 
avoiding,  and  the  exercise  of  due  care  by 
the  defendant  in  preventing,  the  accident  by 
which  the  plaintiff  was  injured.  lialtimore 
€"  O.  K.  Co.  V.  lioteler,  38  Md.  568,  10  Am. 
I\y.  Rep.  506 

It  is  not  error  for  the  court  to  refuse  an 
instruction  asked  by  the  defendant  declar- 
ing that  the  burden  is  on  the  plaintilT  to 
prove  his  case  as  alleged  in  the  declaration, 
and  that  plaintifT  must  make  and  establish 
Ills  case  by  a  preponderance  of  the  evidence, 
wiien  the  same  principle  or  rule  is  not 
stated  in  other  instructions  given.  North 
Chicago  St.  R.  Co.  v.  Louis,  138  ///.  9,  27  N. 
E.  Rep.  451;  rei'ersing  35  ///.  App.  Ml.— 
Reviewing  Dyer  v.  Talcott,  16  111.  300; 
Kepperly  v.  Rainsden.  83  111.  354. 

An  instruction  to  the  effect  that  the  engi- 
neer and  fireman  of  the  train  inflicting  the 
injury  were  personally  liable  to  the  defend- 
ant for  any  negligence  which  the  jury  might 
believe  was  committed  by  them  at  the  time 
mentioned  in  the  case,  and  for  all  damages, 
if  any,  which  should  be  allowed  by  the  jury 
on  account  of  such  negligence,  is  properly 
refused.  Pennsyhntnia  Co.  v,  Keane,  143  ///. 
17  a,  32  v.  E.  Rep,  260. 


The  jury  having  been  instructed  thai 
plaintiff  could  not  recover  unless  the  act  of 
defendant  was  negligent,  it  is  not  error  to 
refuse  an  instruction  to  the  effect  that  he 
cannot  recover  if  the  injury  was  the  result 
of  unavoidable  accident.  Mascheck  v.  St. 
Louis  R.  Co.,  3  A/o.  App.  600. 

Where  the  action  is  for  personal  injuries, 
it  is  proper  for  the  court  10  tell  the  jury 
i.hat  "  it  is  for  you  to  determine  from  the 
evidence  whether  the  injuries  were  or  were 
not  caused  by  this  accident,"  and  to  refuse 
to  charge,  at  the  request  of  the  company, 
that  there  is  no  evidence  which  shows,  to  a 
reasonable  certainty,  that  the  condition  of 
plaintiff's  body  was  caused  by  the  accident. 
Heath  v.  Broadway  c**  S.  A.  R.  Co.,  1 5  A'. 
J  Supp.  142,  39  A'.  V.  S.  A*.  378  ;  affirmed 
in  133  A"    Y.  526,  mem.,  30  A^.  E.  Rep.  1148. 

Defendant's  train  struck  a  cart  and  threw 
it  against  r^laintiff's  intestate,  inflicting  in- 
juries from  which  he  died.  Held,  that  it 
was  proper  to  charge  that  there  could  be  no 
recover;  if  tlie  accident  was  caused  exclu- 
sively by  the  negligence  of  t'le  drive""  of  the 
cart,  and  to  refuse  to  chs  rge  th.it  there 
could  be  no  recovery  if  the  negligence  of 
the  driver  caused  the  accident.  Quill  v. 
Nnv  York  C.  <S-  //.  R.  R.  Co.,  i\  N.  Y. 
Supp.  80,  16  Daly  313,  32  A',  Y.  S.  R.  612; 
affirmed  in  126  X.  Y.  629,  mem..  27  A^.  E. 
Rep.  410,  mem.,  36  A'.  Y.  S.  R.  1012. 

Where,  in  an  action  for  injuries  caused  by 
negligence  of  defendant,  it  appeared  that 
plaintiff  was  herself  a  practising  physician, 
and  immediately  after  tlie  accident  went  to 
see  a  patient,  that  she  had  not  been  kept  at 
home  nor  carried  her  arm  in  a  sling,  but 
continued  to  practise  her  profession  as  a 
physician  and  to  drive  with  her  injured 
hand,  it  was  not  error  to  refuse  a  special  in- 
struction "  that  plaintiff  did  not  use  the 
proper  means  for  restoring  herself  to  health," 
and  could  not  recover  for  the  injury  caused 
by  her  own  neglect,  when  the  question  of 
such  neglect  had  already  been  left  to  the 
jury  under  a  proper  charge.  Alexander  v. 
Richmond  &•  D.  R.  Co.,  ill  N.  Car.  720.  16 
S.  E.  Rfp.  896. 

Where  a  projection  from  a  car,  if  a  defect, 
is  an  obvious  one,  which  defendant  was 
bound  to  remedy,  there  is  no  error  in  refus- 
ing to  charge  the  jury  that  if  the  car  became 
thus  defective  after  it  was  first  put  in  use 
by  defendant  (several  years  before  the  acci- 
dent) the  latter  was  not  liable  unless  it  had 
notice<of  the  defect.      Wecfgwoods.  Chicago 


'3f 


NEGOTIABILITY— NEW   JERSEY. 


835 


cted  that 
the  act  of 
t  error  to 
ct  that  he 
the  result 
eci'  V.  .SV. 

\\  injuries, 
1  tlie  jury 

from  the 
ire  or  were 

Co  refuse 

company, 

liows,  to  a 

mdition  of 

e  accident. 

Co.,  15  N. 

;  affirmed 

licp.  1148. 

and  ilirew 

flicting  in- 

dd,  that  it 

ould  be  no 

ised  exchi- 

river  of  the 

tl1.1i  there 

^ligcnce  o' 

Quill  V. 

II  N.  Y. 
.S.R.  612; 
..  27  N.  E. 

013. 

s  caused  by 
>carcd  that 
;  physician, 
ent  went  to 
)een  kept  at 
a  sling,  but 
Fession  as  a 
her  injured 
a  special  in- 
lot  use  the 
If  to  health," 
ijury  caused 
question  of 
left  to  the 
Uexander  v. 
Car,  720,  16 

r,  if  a  defect, 
endant  was 
ror  in  refus- 
>  car  became 
t  put  in  use 
ore  the  acci- 
inless  it  had 
7</v.  Chi(af(0 


&»  N.  W.  R.  Co.,  44  Wis.  44,  19  Am.  Fy. 
Rep.  393.— Following  Smith  v.  Chicago. 
M.  &  St.  P.  R.  Co.,  42  Wis.  520. 


NEGOTIABILITY. 

or  bills  of  lading^,  seu  Hills  of  Lading,  108- 
114. 

—  commercial  paper,  see  Bills,  etc,  2,  3. 

—  corporate  bonds,  see  Bonds,  10-21. 

—  coupons,  see  CouruNs,  4,  A. 

—  railway  aid    bonds,  sec    Municipal   and 

L.cAi,  All),  a44-.3no. 

—  receivers'     certificatrs,     bee    Receivers, 

104. 

—  stock  certificates,  see  Stock,  30. 

NEGOTIABLE  PAPER. 

Made  or  received  by  agents,  see  Auencv,  70. 

See  iiii.i.s,  NoTKs,  a.nu  Checks. 


NEVADA. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion. 272. 

Constitutionality  of  statutes  of,  as  to  munic- 
ipal aid  for  railways,  sec  Mu.Nit:ii'AL  and 
Local  Aid,  42. 

Deductions  for  benefits  under  condemnation 
laws  of,  see  Eminknt  Domain,  744. 

Operation  of  statute  of,  giving  right  of  action 
for  causing  death,  see  Dkatii  by  Wkonu- 
1 1:1.  Act,  20. 

Taxation  in  aid  of  railways  in,  see  Municu-al 
AND  Local  Aid,  420. 

—  of  land  grants  in,  see  Taxation,  122. 


NEW  HAMPSHIRE. 

Assessment  and  levy  of  taxes  in,  see  Taxa* 
tion,  273. 

Constitutionality  of  statutes  of,  as  to  munici- 
pal aid  for  railways,  see  MuNicirAL  and 
Local  Aid,  43. 

— relative  to  condemnation  of  land, 

sec  Eminent  Domain,  38. 

tax  laws  of,  see  Taxation,  38. 

Constitutional  provisions  in,  relative  to  con- 
demnation of  land,  see  Eminent  Domain, 
10. 

Crossing  of  streets  and  highways  under  stat- 
utes of,   sec   CKosstN(i   OK    Stkkeis   and 

Hlt.llWAVS,  rt. 

Deductions  for  benefits  under  condemnation 
laws  of,  sei'  Eminent  Domain,  74ff. 

Occupation  of  streets  by  steam  roads  under 
legislative  grants  of.  seu  Streets  and 
liu.iiwAVs,  m. 

Plaintiff's  pleadings  need  not  negative  con- 
tributory negligence  in,   see   Contkiiut 

TOIJV  Nf.OI  lOKNCK,  01. 


Posting  and  publishing  rates  under  statutes 

of,  Fee  ClIAKdHS,  08. 

Rule  as  to  imputed  negligence  in,  see  Im- 
puted Nkci.icenck,  17. 

Statute  of,  regulating  liability  for  injuries 
caused  by  fire,  see  Kikes,  13. 

Statutory  duty  to  fence  in.  see  Fences,  31. 

—  provisions  in,  limiting  amount  recoverable 
for  causing  death,  see  Death  uv  Wrong- 
KOi.  Act,  300. 

Taking  land  for  streets  and  laying  out  roads 
in,  see  Sikee  s  and  Hiuhwavs,  23. 


NEW  JERSEY. 
Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 274. 
Conditions  exempting  carrier  from  liability 

to  person  riding   on  free  pass  in,  see 

Passes,  25. 
Constitutionality  of  statutes  of,  relativr  to 

condemnation  of  land,  see  Eminent  Do- 
main, 30. 

tax  laws  of,  see  Taxation,  30. 

Crossing  of  streets  and  highways  under  stat- 
utes of,   see  CkossiNii  oK  Streets    and 

lliiiiiWAVs,  4. 
Deduction  for  benefits  under  condemnation 

laws  of,  see  Eminent  Domain,  740. 
Doctrine  of  comparative  negligence  denied 

in,  see  Comparative  Nkc.i.ic.ence.  30. 
Duty  to  give  signals   near  crossing  under 

statute  of,  see  Ckossinus,  Injuries,  kic, 

at,  128. 
Grants  by.  to   railroads,  see   Land  Grants, 

1 23. 
Injuries  to  animals  running  at  large  in,  sec 

Animals,  I nj cries  to,  271. 
Jurisdiction  of  chancery  court  of,  see  Juris- 

niciioN,  12. 
Laying  out  streets   across  railways  under 

statutes  of,  see  Ckossinc  ok  Strkets  and 

IIkihwavs,  47. 
Local  assessments  upon  steam  railways  in, 

for  repairs,  paving,  etc.,  see  Sirkkts  and 

llic.invAVs,  351. 
Occupation  of  streets  L>y  steam  roads  under 

legislative  grants  by,   see  Streets  and 

Hiuhwavs,  S2. 
Rule  as  to  imputed  negligence  in,  ste  Im- 

PC  I  ED  Nkc.licence,  18. 
Statutes  of,  relative  to  connecting  lines,  see 

Connectino  Lines,  2. 
relative  to  distribution  of  damages  for 

causing  death,  sec  Deai  11  iiv  Wronukul 

Act,  04. 
Statutory  regulation  of  grade  crossings  in, 

see  Crossing  ok  Streets  and  Highways, 

i>0. 
Taking  land  for  streets  and  laying  out  roads 

in,  sec  Streets  and  Hu.iiways,  24, 


i 


886 


NEW   MEXICO— NEW  TRIAL,  1. 


[■lit 


i  ^ 


.'lA: 


NEW  MEXICO. 

Attettment  and  levy  of  Uxei  in,  see  Tax- 
ation, 27rt. 

Operation  of  statute  of,  giving;  right  of  action, 
for  causi>:g  death,  see  Death  hy  Wkonu* 
KUL  Act,  27. 


NEW  ORLEANS. 

Decisions  particularly  applicable  to,  see  Mu> 

MCII  AL  CORI'DRATIONS,  47. 

Joint  use  of  street-car  tracks  in,  see  Street 
Kaii.wavs,  247. 

Power  of  city  to  grant  use  of  streets  for  rail- 
way, see  Street  Railways,  18,40. 

NEW  PARTIES. 

Bringing  in,  generally,  see  Parties  to  Ac- 
tions, 14,  2  t. 

in  condemnaiion  proceedings,  see  ^...ii- 

nent  Domain,  2U1. 

NEW  SERVITUDE. 

Must  be  compensated  for,  see  Imminent  Do- 
main, 1«2. 

Use  of  street  fot  electric  road  is  not,  see 
Electric  Railways,  18. 

NEW  TRIAL. 

Appeal  from  orders  granting  or  denying,  see 

AiTEAL  AM.  Error,  2:<,  24. 
For  inconsistency  between  general  verdict 

and  special  findings,  see  Trial,  220. 
In  ejectment,  see  Ejectment,  !t2. 
Necessity  oi    motion    for,  see   Appeal    and 

Error,  lOli;  Eminent  Domain,  UIH. 
Ordering  on  appeal,  see  Appeal  and  Error, 

145. 
Remanding  cause  for,  see  Animals  Inji'ries 

TO,  038;  Certiorari,  12. 

I.  OBOUNDB 836 

1 .  Error  oh  the  Trial S36 

2.  Disqualification  or  Miscon- 

duct 0/ Jurors 841 

3.  Verdict     at^ainst     Law     or 

Evidence  ;    Defective  Ver- 
dict  843 

4.  Excessive  Damages 850 

a.  \\\  General 850 

b.  Instances  of  Verdicts 

Claimed  to  be  Ex- 
cessive   856 

c.  Remittitur      of     the 

Excess 868 

K.  Inadequate  Damages 871 

6.  Ne^uly  Discovered  Evidence  872 

7.  Surprise 874 

U.  THE  APPLICATION   AlTD   HOW  DU- 

POSEDOF 875 


I.  OBOUNDB. 

I.  Error  on  the  Trial. 

1.  In  sreiierai.  —  Tiie  mere  fact  that 
three  successive  juries  in  three  trials  have 
found  for  plaintifT,  though  with  dilTerent 
damages  and  upon  somewhat  difTercnt  facts, 
does  not  deprive  defendant  of  his  right  tu  a 
new  trial  when  substantial  error  has  hct-n 
committed.  Browns.  Atchison,  T.  &*S.  /■'. 
R.  Co.,  ID  Am.  &*  Eng.  K.  Cas.  739,  29  A',ni. 
186 ;  further  appeal,  1 5  Am.  iS-  Eng.  R.  C'li.v. 
271,  31  Kan.  I. 

After  the  introduction  of  plaintifT's  testi- 
mony to  a  jury  impaneled  to  try  a  personal 
injury  cause,  the  court  has  no  authority  <•> 
dismiss  a  case  and  discharge  the  jury  with- 
out a  verdict  upon  the  merits.  If  the  evi- 
dence so  introduced  tends  ii.  any  degree  to 
sustain  plaintifT's  petition,  a  new  trial  will 
be  ordered.  Smith  v.  Sioux  City  Sr*  I'.  R. 
Co.,  15  Neb.  583,  19  A'.  IV,  Rep.  638.- 
QuoTED  IN  Johnson  v.  Missouri 'Pac.  K. 
Co.,  23  Am.  &  fing.  R.  Cas.  429,  18  Neb. 
690. 

VV'iiere  the  verdict  is  for  the  plaintiff,  it  is 
error  to  grant  a  new  trial  on  grounds  upon 
which  his  right  of  recovery  does  nut  de- 
pend. So  held,  where  the  action  was  to  re- 
cover damages  for  falling  through  a  bridge 
in  entering  a  car,  where  the  motion  was 
granted  on  the  ground  that  plaintitl  had 
entercvi  the  car  without  consent,  and  before 
it  reached  the  place  where  passengers  were 
received,  a.  'd  therefore  assumed  the  risk,  but 
where  his  right  of  recovery  did  not  depend 
upon  such  question.  Bellman  v.  N£W  York 
C.  ^  H.  R.  R.  Co.,  5  A'.  K.  S.  R.  153;  af- 
firmed in  \12  N.  K  671,  num.,  26  A'.  E.  Rep. 
755,  mem. 

In  an  action  for  negligently  causing  the 
death  of  in  employe,  the  evidence  tended 
to  show  that  the  deceased  had  equal  knowl- 
edge of  the  risk  with  the  company  and  as- 
sumed it,  but  the  court  offered  to  submit 
the  question  to  the  jury  on  conditif>n  that 
plaintifT  would  stipulate  that  in  case  he  w^is 
successful  the  verdict  might  be  set  aside 
and  judgment  entered  as  of  nonsuit,  to 
which  plaintifT  agreed  on  condition  that  he 
stand  in  the  same  position  as  if  a  nonsuit 
had  been  regularly  gr  inted.  'It  Id,  that  it 
was  reversible  error  to  grant  a  new  trial 
without  regard  to  the  stipulation.  Doi/ii,- 
v.  New  York,  O.  ■**  W.  R.  Co..  43  A'.  }'.  .V. 
A'.  820,  63  Hun  676,  17  A'.    »'.  .Sm>*/>.  r)K(,. 

The  allegations  of  the  declar.uinM  iciu; 


"f^ 


NEW   TRIAL,  2-5. 


837 


»r.uiiin   I'c'iict 


ambiguous  and  uncertain  as  to  whether  the 
negligence  intended  to  be  complained  of 
was  only  the  failure  to  warn  the  plaintiff 
};cnerally  that  going  under  the  engine  and 
aiding  in  removing  the  eccentric  was  dan- 
gerous, or  the  further  failure  to  warn  him 
specially  of  the  result  of  unfastening  the 
eccentric  and  the  consequences  thereof 
when  the  fireman  was  about  to  remove  the 
bolt,  and  it  Ir  ing  very  doubtful  whether  it 
was  negligent  at  all  to  fail  to  give  plaintitT 
the  general  warning  indicated,  and  the  evi- 
dence of  negligence  upon  the  theory  that 
the  special  warning  was  not  given  being 
vague  and  uncertain,  and  it  being  apparent 
that  it  can  be  cleared  up  and  made  more 
satisfactory  so  as  to  show  the  cause  to  which 
the  injury  was  really  attributable,  the  ends 
of  justice  require  a  new  trial,  Georgia  A'. 
&^  /{.  Co.  v.  Miller,  90  Ga.  571,  \t  S.  E.  Rep. 

939- 
2.  liiipropcriuliiiiHHioii  of  evidence. 

—A  new  trial  will  not  be  granterl  on  the 
ground  that  improper  evidence  was  ad- 
mitted, when  there  is  no  conflict  in  the  evi- 
dence, if  the  fact  sought  to  be  proved  is  am- 
ply shown  by  other  evidence,  and  it  is  plain 
that  the  jury  were  not  misled.  Pensacola 
&•  A.  K.  Co.  V.  Anderson,  26  Flu.  435,  8  So. 
Kip.  127. 

In  an  action  against  a  carrier  for  failing 
to  deliver  goods,  the  admission  of  evidence 
that  his  servant  requested  the  person  from 
whom  he  received  thcin  to  make  out  a  bill 
<>(  the  goods  "  said  to  have  H':cn  lost  "  is  no 
ground  for  granting  the  carrier  a  new  trial. 
htt^lidew  V.  Sort  hern  R.  Co.,  7  Gray  {A/ass.) 
86. 

;i.  10\eliiHioii  ofevlcleuce.— The  com- 
pany olTered  in  evidence  flags  similar  to  the 
one  used  by  a  flagman  at  the  time  of  *hc 
a<  cident.  //</</.  that  the  exclusion  of  suth 
fl.igs  and  the  testimony  relating  to  them 
(lid  not  constitute  error  such  as  to  entitle 
defendant  to  a  new  trial.  Oui'll  v.A\nv  ]'ori' 
C.&^  //.  R.  R.  Co.,  II  A'.  1'.  Supp.  80,  16 
/)aly  313,  32  A'.  )'.  .v.  />'.  612;  affirmed  in 
m(i  A',  v.  629,  mem.,  27  .V.  E.  Rep.  410, 
iiiein.,  36  A'.    1'.  .S.  A*.  1012. 

4.  Krrurs  iiicoiiiiM«>r,s  ai'Kiiiiieiit  to 
tin*  jur>.*  —  WliLTc  III  an  eiiiployt'-'s  ac- 
iioM  for  personal  injuries  plaintiff'saltorney 
ill  his  argument  to  tlic  jury  ap|>eals  to  their 

•Misconduct  of  ccunsrl  in  addressing  the 
inry.  Anprnpf:  f"  i-xcitc  prejiiclice  uKHini't  rail- 
ways iiiul  ((irpiiiaii'ins,  see  46  Am.  &  Kno.  R. 
Cas.  ivi,  iilih. 


prejudices  and  inflames  their  passions  by 
reference  to  matters  not  in  the  record  and 
statements  not  warranted  by  the  testimony, 
urging  upon  the  jury  that  the  defendant  was 
a  powerful  and  wealthy  railroad  corporation, 
and  by  the  exercise  of  superior  power  and 
the  use  of  corrupt  and  unlawful  means  had 
procured  plaintiff's  indictment  for  the  pur- 
pose of  impeaching  his  testimony,  he  is 
guilty  of  such  misconduct  as  will  entitle  de- 
fendant to  a  new  trial.  Henry  v.  Sioux  City 
&•  P.  R.  Co.,  70  Iowa  233.  yj  N.  «'.  Rep. 
630. 

A  verdict  will  not  be  disturbed  for  ex- 
travagances of  counsel  in  summing  up  and 
urging  inferences  from  facts  in  evidence 
unless  the  trial  court  has  plainly  allowed 
them  to  mislead  the  jury.  Staal  v.  Grand 
Rapi.'<  &'  I.  R.  Co.,  57  Mieh.  239.  23  A'.  W. 
Rep.  795. 

The  court  may  interfere  and  stop  the  ar- 
gument of  counsel,  when  he  is  discussing 
matters  outside  of  the  case,  without  objec- 
tion or  suggestion  from  opposing  counsel ; 
and  such  action  will  be  sustained  unless 
there  be  a  gross  abuse  of  discretion.  But  a 
failure  on  the  part  of  the  court  to  interfere, 
when  o|)posing  counsel  are  present  and  do 
not  ask  the  interposition  of  the  court  or  ob- 
ject to  the  line  of  argument  pursued,  will 
rot  entitle  the  party  represented  by  such 
opposing  counsel  to  a  new  trial.  St.  Louis 
&*  S.  E.  R.  Co.  V.  Myrtle,  51  Ind.  566.— 
Quoting  Tucker  v.  Henniker,  41  N.  H, 
3'7- 

Improper  statements  made  by  counsel  in 
argument  which  the  presiding  judge  did 
not  hear,  and  to  which  his  attention  was 
not  called  either  then  or  afterwards  during 
the  progress  o'  the  trial,  not  even  by  any 
request  to  charge  the  jury,  will  not  require 
or  justify  the  granting  of  a  new  trial.  Au- 
frusta  R.  Co.  V.  Glozvr,  58  Am.  <S«»  Enj;.  R. 
Cas.  269,92  Ga.  132,  18  5.  E.  l\'ep.  406. 

An  improper  remark  of  counsel  in  dis- 
cussing the  question  of  punitive  damages, 
although  objected  to  at  the  time  and  not 
rebuked  by  the  court,  where  all  considera- 
tion of  punitive  damages  was  excluded  by 
the  judge's  charge  to  the  jury,  is  not  a  suffi- 
cient ground  for  a  new  trial,  iuist  Tenn., 
V.  &*  G.  R.  Co.  V.  Gurley,  17  .,-////.  &*  En,^. 
R.  Cas.  568,  12  Lea  (  Tenn.)  46. 

n.  What  erroFN  in  iiiMtnictioiiMwill 
warrant  a  n«'\v  trial.— in  General  >uies. 
— In  an  action  for  injuries  received  by  being 
run   over   by   a   tram,  a    new  trial  will    be 


i 

i 


li 


i 


m 


838 


NEW  TRIAL,  5. 


granted  if  the  charge  tenrled  to  give  the 
jury  the  impression  that  they  miglit  go  be- 
yond the  general  inquiry  as  to  reasonable 
care  and  establish  some  particular  standard 
of  their  own.  SpriHj,nfiitn  v.  lialtitttore  &* 
P.  a:  Co..  5  A/iicJtey  {/).  C.)  i. 

Where,  in  an  action  for  personal  injury, 
the  charge  as  to  the  measure  of  damages 
for  partial  or  total  permanent  disability  is 
so  ol)Scurc,  inaccurate,  and  incomplete  as  to 
render  it  possible,  if  not  probable,  that  the 
jury  were  misled,  a  new  trial  will  be  granted, 
especially  where  a  very  large  verdict  is  ren- 
dered for  the  plaintifl.  C/ialtiinooga,  /»'.  «S«» 
C.  h'.  Co.  V.  Owen,  90  Ga.  265,  1 5  S.  E.  Rep. 

853- 

Where  the  action  is  for  injuring  plaintiff 
at  a  crossing,  it  is  ground  for  a  new  trial  to 
insii  net  the  jury  that  they  may  give  exem- 
plary damages  if  they  believe  that  the  in- 
jury was  wilful  or  reckless,  where  there  is 
no  evidence  of  gross  negligence,  or  of  wil- 
fulness or  recklessness.  Kennedy  v.  North 
Mo.  A*.  Co.,  36  Mo.  351.— Distinguished 
IN  Ohio  &  M.  R.  Co.  V.  Dickerson,  59  Ind. 
317.  Reviewed  in  Scaling  v.  Pullman 
Palace  Car  Co.,  24  Mo.  App.  29. 

The  trial  court  has  the  power,  and  it  is 
its  duty,  to  rectify  its  errors ;  and  where  it 
has  improperly  declared  the  law,  and  its  at- 
tention is  called  thereto  in  a  motion  for 
new  trial,  and  it  orders  a  n<>w  trial,  this 
court  will  not  reverse  its  action.  And  with 
or  without  such  motion  the  court  might, 
and  ought,  to  order  a  rehearing  where  it  at 
the  time  discovers  its  error.  Wight  v.  Mis- 
souri  I'ac.  R.  Co.,  20  Ato.  App.  481.— Ex- 
plaining Braxton  v,  Hannibal  &  St.  J.  R. 
Co.,  77  Mo.  455. 

A  party  is  entitled  to  a  full  and  fair  hear- 
ing before  the  jury ;  and  when  that  right 
has  been  denied  him  by  some  word  or  act 
of  the  trial  judge,  although  without  intend- 
ing to  prejudice  his  rights  in  the  minds  of 
the  jury,  it  is  not  an  iibuse  of  discretion  to 
correct  it  by  granting  a  new  trial.  Cant' 
panello  v.  A'ew  York  C.  .S-  H.  R.  R.  Co.,  39 
A',  r.  S.  R.  445.  «5  ^V.  y.  Supp.  670; 
affirmed  in  136  ^V.  Y.  644,  mem.,  32  A'.  E. 
Rep.  1015,  49  iV.   Y.  S.  R.  914. 

Where  the  issues  submitted  to  the  jury 
arc  confused  and  calculated  to  mislead  the 
jury,  a  new  trial  will  be  directed.  Bottoms 
V.  .Seaboard  C-^  R.  R.  Co..  109  A'.  Car.  72,  13 
S.  E.  Rep.  738. 

A  charge  which  consists  mainly  of  ex- 
tracts    from    i>|>inii)ns    in    reported    cases 


having  no  special  reference  to  the  circum- 
stances of  the  case  on  trii^l  is  objectionable; 
and  where,  from  the  consideration  of  the 
whole  evidence,  it  is  reasonable  to  suppose 
the  jury  may  have  been  misled  by  such 
charge,  a  new  trial  ought  to  be  granted. 
Marietta  &*  C.  R.  Co.  v.  Picksley,  24  Ohio 
St.  654.  7  Am.  Ry.  Rep.  186. 

Where  the  action  is  for  personal  injuries 
received  through  negligence,  it  is  error  for 
the  court  in  instructing  the  jury  to  assume 
that  the  company  was  negligent  in  a  cer- 
tain particular,  where  the  evidence  relating 
thereto  is  contradictory,  and  to  ignore  other 
evidence  tending  to  establish  certain  facts. 
Powell  \.  Wilmington  <S-  W.  R.  Co.,6i  N. 
Car.  395. 

(2)  Illustrations.— \n  an  action  by  a  father 
for  causing  the  death  of  a  colored  girl  about 
sixteen  years  old,  the  jury  returned  a  verdict 
of  $2$o.  The  question  was  in  issue  whether 
the  family  was  domiciled  in  the  state  where 
the  trial  was  had,  where  a  female  became  of 
age  at  twenty-one,  or  in  an  adjoining  state, 
where  she  was  of  age  at  eighteen.  On  a 
motion  for  a  new  trial  the  court  was  of 
opinion  that  the  verdict  was  suflicient  if  the 
domicile  was  in  the  latter  state,  but  not  if 
the  domicile  was  in  the  former  state  ;  and 
was  further  of  the  opinion  that  the  instruc* 
tions  given  the  jury  were  not  sufficiently 
definite,  and  granted  a  new  trial,  daither 
V.  Kansas  City,  etc.,  R.  Co.,  27  Fed.  Rep. 
544.— Following  Lett  v.  St.  Lawrence  & 
O.  R.  Co.,  21  Am.  &  Eng.  R.  Cas.  165,  11 
Ont.  App.  I  ;  Little  Rock  &  Ft.  S.  R.  Co. 
V.  Barker,  39  Ark.  491 ;  St.  Louis,  I.  M.  & 
S.  R.  Co.  7'.  Freeman,  36  Ark.  41. 

The  circuit  judge  charged  the  ju.y  as  fol- 
lows; "If  you  believe  from  the  evidence 
that  it  was  apparent  to  the  car  driver  that 
the  plaintifl  when  he  entered  the  car  was  in 
a  crip|)led  condition,  having  to  use  a  cane 
or  crutches  to  aid  him  in  moving  about, 
then  it  was  the  duty  of  the  driver  to  use  a 
greater  degree  of  care  than  in  a  common 
case  of  an  apparently  well  and  sound  pas- 
senger." I/eld,  error,  there  being  no  testi- 
mony showing  that  it  was  so  apparent. 
Jacksonville  St.  R.  Co.  v.  Chappell,  28  Am. 
&*  Eng.  R.  Cas.  227,  21  Fla.  175. 

The  damages  found  being  extreme,  if  not 
excessive,  the  error  of  the  court  in  charging 
the  jury  on  that  branch  of  the  case  is  cause 
for  a  new  trial ;  the  error  being  in  referring 
the  jury  to  certain  eUtni'iits  of  damage  as 
to  which  there  was  no  evidence,  such  as 


■■)i'l- 


NEW  TRIAL,  6. 


839 


habits,  avocation,  money  made  by  labor, 
prospect  of  increased  earnings,  prospects  of 
obtaining  steady  and  remunerative  umploy- 
nicnt,  etc.,  the  person  injured  being  a  ciiild 
nine  years  of  age.  ll'i'stern  &>  A.  A'.  Co.  v. 
l'i»««(,s  43  ///«.  iS-  /Cn^'.  /»'.  Ciis,  135,  83  Git. 
512.  10  S.  E.  Ri'p.  \yT,  former  appeal,  81 
Ct'I.  397.  7  •*>"•  li.  liep.  912. 

PlaintilT  hired  a  carriage  at  a  livery  stiibie, 
with  a  driver,  and  was  injured  by  a  train  in 
crossing  defendant's  track.  It  was  admitted 
that  tiie  negligence  of  the  driver  cotdd  not 
l)e  imputed  to  plaintifT ;  and  from  the  evi- 
dence the  jury  might  have  found  that  l)oth 
the  driver  and  the  company  were  ncglijjcnt. 
Held,  that  it  was  ground  for  a  new  trial  to 
refuse  to  submit  the  question  to  the  jury 
whether  each  was  negligent,  and  therefore 
jr>intly  negligent.  Collins  w.  l^yng  Island  K. 
Co.,  29/.  iS^S.  154,  18  X.  y.  Supp.  779.46 

A',  y.  s.  a:  252. 

The  circuit  judge,  in  a  personal  injury 
case,  upon  the  jury's  report  that  they  could 
not  agree  upon  a  verdict,  said  "  that  it 
seemed  to  be  a  very  diilicult  matter  for  ju- 
ries at  the  present  term  of  court  to  decide 
questions  of  fact  submitted  to  them;  that 
it  seemed  to  the  court  that  nearly  every  jury 
had  returned  and  said  they  could  not 
agree  "  ;  and  "  that  they  ought  to  agree  and 
decide  cases,  for  they  had  to  be  decided  by 
juries,"  and  "that  he  had  no  idea  of  dis- 
cliarging  them,  but  would  keep  them  to- 
getlier  on  the  case  during  the  entire  term, 
if  it  lasted  three  weeks,  unless  they  sooner 
agrcetl  ujjon  it."  Xc.\tday  the  jury  returnea 
a  verdict,  //eld,  reversible  error.  C/iisa- 
peake,  O.  <Sr'  S.  If.  A'.  Co.  v.  liar  low,  86 
Tcnn.  537,  8  .V.  W.  AV/».  147. 

A  section  master  going  on  a  hand-car  to 
load  scrap  iron  allowed  plaintitT  to  go  along 
if  he  would  assist.  On  the  return  the  hand- 
car collided  with  a  train,  injuring  plaintifT, 
who  sued  the  company.  The  court  in- 
structed the  jury  that.  "  the  court  being 
of  opinion  that  it  could  not  be  fairly  in- 
fcrreil  from  the  testimony  that  plaintiff  was 
cither  a  passenger  or  an  employe  of  the 
company,  n  was  fairly  inferable  that  he  was 
aware  of  the  rules  of  the  company  prohibit- 
ing persons  from  riding  on  hand-cars." 
Held,  such  an  invasion  of  the  province  of 
the  jury  as  entitled  plaintitT  10  a  new  trial. 
Tyler  v.  Cliesapeake  &*  O.  A'.  Ck,  88  Va.  389, 
1 3. v.  E.  A\p.  975. 

I'liiiiitin  sued  Ills  company  for  wages  due, 
and  the  (-onipanv  made  defense  that  it  had 


assumed  and  become  liable  for  a  board  bill 
of  the  plaintifT.  The  evidence  was  con- 
flicting as  to  whether  there  was  any  arrange- 
ment or  agreement  by  which  the  company 
became  liable  for  the  board,  //eld,  that  it 
was  error  for  the  court  to  instruct  the  jury 
that  there  was  no  satisfactory  evidence  that 
any  such  ariangement  had  been  m.ide,  or 
that  no  liability  therefor  existed  on  the 
part  of  the  company;  it  should  have  been 
left  to  the  jury,  //unkins  v.  Milwaukee  &* 
S/.  P.  R.  Co.,  30  Wis.  559. 

O.  ErrurH  in  iiiMtriictioiiH  not  wiir- 
riiiitiiiyr  new  trial.— Where  the  action  is 
for  a  personal  injury  caused  by  negligence, 
and  the  instructions  are  as  favorable  as 
plaintifT  is  entitled  to,  and  there  is  nothing 
to  indicate  that  the  jury  were  actuated  by 
passion  or  prejudice,  the  verdict  will  be 
sustained.  Reese  v.  T/iird  Ave.  A\  Co.,  16 
Fed.  Rtp.  368. 

Where  the  evidence  shows  the  loss  to 
plaintifT,  in  respect  of  certain  damage  to 
his  property,  to  have  been  trifling— about 
$i$— the  appellate  court  will  not  grant  a 
new  trial  because  that  element  of  injury 
was  erroneously  excluded  from  the  consid- 
eration of  the  jury.  Neiisey  v,  lialtimore 
Sf  /-.  A'.  Co.,  26  Am.  Sf  Eng.  R.  Cas.  553, 
5  Mackey{D.  C.\  34. 

A  new  trial  will  not  be  granted  because  a 
certain  instruction  standing  alone  might 
bear  an  interpretsition  prejudicial  to  the 
right  of  the  plaintifT,  but  which  when  taken 
in  connection  with  the  other  instructions 
and  the  charge  of  the  court  appears  to  be  a 
fair  statement  of  the  law.  Gleeson  v.  Vir- 
ginia Midland  R.  Co.,  38  Am.  &*  Eng.  R. 
Cas.  202,  5  Mackey  (A  C.)  356. 

A  new  trial  should  not  be  granted  in  an 
action  by  a  passenger  for  personal  injuries 
because  the  court  gave  in  ciiarge  to  the 
jury  section  3034  of  the  Ga.  Code,  there 
being  testimony  from  which  the  jury  might 
find  both  parties  were  at  fault,  and  it  ap- 
pearing also  that  the  court  gave  in  charge 
se'  tion  2972.  Western  &*  A.  R.  Co.  v. 
Abbott,  74  Ga.  851. 

It  is  not  error  to  charge  a  jury  that  the 
law  requires  extraordinary  diligence  on  the 
part  of  railroads  in  transporting  passen- 
gers, ind  that  they  are  liable  for  slight  neg- 
ligence :  but  an  encomiutii  upon  the  wisdom 
of  such  a  law  is  unnecessary,  if  not  one- 
sided, unless  it  be  passed  also  upon  the  law 
that  imposes  care  ami  diligence  upon  the 
passenger;  yet  this  error  will  not  warrant  a 


I 


ri'- 


i 


S40 


NEW  TRIAL,  7,  8. 


J 


ni 


■A 


new  trial.     Central  A'.   Co.    v.    T/ioinpson, 
76  (;<».  770. 

A  char(;e  to  the  jury  which  is  abstractly 
incorrect,  but,  uiulur  the  peculiar  circum- 
stances of  the  case  cannot  injure  any  one, 
is  not  ground  for  a  new  trial.  Ross  v.  IVesI 
Phila.  /'ass.  A'.  Co.,  17  J'/i//a.  (/'<».)  361. 

A  char(>e  should  not  indicate  the  limit  of 
dama^'os  claimed,  but  such  error  is  not 
ground  for  reversal  where  from  the  amount 
of  the  verdict  and  other  circumstances  it 
appears  to  liavc  been  harmless.  Texas  &» 
J'.  A\  Co.  V.  Huffman,  83  Tex.  286,  18  S. 
If.  K,-/>.  741. 

A  conductor  whose  contract  of  service 
was  made  in  Geoi'gia  was  injured  in  South 
Carolina  by  reason  of  a  defective  ladder,  and 
the  negligence  charged  was  a  failure  to  in- 
spect the  ladder  before  the  train  left  Geor- 
gia. It  appeared  that  the  law  of  South 
Carolina  was  more  stringent  as  to  the  duty 
of  a  master  to  furnish  safe  machinery  and 
appliances  than  that  of  Georgia,  and  the 
case  was  submitted  to  the  jury  under  in- 
structions morj  favorable  than  if  the  South 
Carolina  law  liad  been  applied.  //<■///,  that 
a  verdict  for  plaintiiT  would  not  be  set 
asi('o  and  a  new  trial  granted  even  if  it  be 
assumed  that  the  South  Carolina  law  fur- 
nished the  rule  for  determining  the  com- 
pany's liability.  Atlanta  &*  C.  A.  L.  J\\ 
Co.  V.  Tanner,  68  Ga.  384. 

7.  K(!t'iiHal  of  ru«|itt!NtM  to  cliurt;o.— 
Where  the  action  is  for  personal  injuries, 
and  contributory  negligence  is  relied  upon 
as  a  defense,  and  there  is  substantial  evi- 
dence tending  to  establish  it,  it  is  error  for 
the  court  to  ignore  this  defense  in  charging 
the  jury,  especially  when  attention  is  spe- 
cially directed  to  it.  Geor^/a  A'.  Co.  v. 
Thomas,  68  Ga.  744.  —  Distin(;uishin(; 
(jcorgia  K.  &  B.  Co.  v.  Neoly,  56  Ga.  543.— 
Rkvikwku  IN'  Western  &  A.  K.  Co.  v. 
Hloomingdale,  74  Ga.  604;  Savannali,  F.  & 
W.  R.  Co.  V.  Stewart,  71  (ia.  427. 

Where  the  action  is  for  wrongfully  caus- 
ing death,  the  law  of  the  case  must  be  given 
to  the  jury  to  the  e.Meiit  of  covering  the 
substantial  issues  made  by  the  evidence, 
whether  reqiiestfil  or  not,  or  whether  the 
attention  of  the  court  be  called  thereto  or 
not;  otherwise  the  verrlict  will  be  set  aside 
and  a  new  trial  granted.  Cfiilral  A'.  Co.  v. 
Jltirr/s,  76  Ga.  501. 

Whore  a  jjiirty  sues  for  damages  resulting 
from  necliiii'iice  and  <alls  but  one  witness, 
who  cllec  u.illy  disproves  tiic  charge  ol  neg- 


ligence, it  is  error  for  the  trial  court  to  re- 
fuse to  instruct  the  jury  that  plaintifl  has 
whollv  failed  to  prove  the  charge,  and  a 
new  trial  should  be  granted.  Underhill  v. 
Xew  York&^H.  A'.  Co.,  21  /lard.  (M.  }'.) 
489. 

Notwithstanding  the  discretion  which  is 
given  to  the  jury  under  New  Y<irk  Act  of 
1847,  as  amended  in  1849,  giving  a  right  of 
action  for  wrongfully  causing  death,  it  is 
the  duty  of  the  court  to  give  definite  in- 
structions as  to  what  may  be  taken  into 
consideration  in  estimating  the  damages, 
and  if  explicit  instructions  are  asked  for 
and  refused  it  is  ground  for  a  new  trial. 
Green  v.  Iluilson  Kiver  A',  Co.,  32  Hard, 
{X.  r.125. 

Wiiere  a  verdict  for  the  plaintiff  may  have 
been  rendered  upon  either  of  two  causes  of 
action,  but  it  does  not  appear  upon  which, 
a  refusal  to  give  a  pro|)er  instruction  on  be- 
half of  the  defendant  as  to  either  cause  of 
<iction  will  entitle  him  to  a  new  trial.  Penn- 
svh'ania  Co.  v.  Miller,  35  Ohio  St.  541.  /tooth 
V.  /iost.in  &-  A,  A'.  Co. .  67  A'.  }',  593,  mem. 
—  Rkkk.kkinc;  m  Tlike  t.  IJoston  &  A.  R. 
Co.,  53  N.  Y.  549;  Sprung  v.  Boston  &  A.  R. 
Co.,  58  N.  Y.  56. 

8.  VAYvvi  on'ailiiiv  to  olijcct  at  the 
trial.— When  t  u-  rule  of  damages  adopted 
on  the  tii.il  IS  fuii(i,iinentaily  erroneous,  the 
veriiict  ma\,  i  1  sume  cases,  be  set  a^'de,  al- 
though III)  olijiM'tion  was  made  to  the  intro- 
duction rif  the  evidence  on  which  such  rule 
was  foiiiuUd.  /lalftilil  v.  Central  A'.  Co.,  33 
A'.  J.  A.  231.  — Rkc(jxcii.kI)  i.\  Scott  v.  In- 
dianapolis i%  V,  R.  Co.,  (Ind.)  10  Am.  & 
Hug.  R.  Cas.  189. 

Where  the  jury  were  told  upon  an  appeal 
from  the  award  of  land  damages  by  the  rail- 
road omimissioners  that  the  law  in  relation 
to  highways  applied  generally  to  railroads, 
and  the  court  was  not  at  the  time  asked  to 
make  the  instructions  more  definite — lield, 
that  it  was  not  sufficient  to  sot  aside  the 
verdict.  March  v.  /'ortsmoiit/t  6f  C.  A'.  Co., 
19  A'.  //.  372. 

A  female  passenger  entered  a  car  before 
the  train  was  made  up  and  was  injured  by 
aiKJther  car  being  kicked  against  the  one 
she  hail  entered.  The  company  relied  upon 
the  defense  that  she  had  improperly  entered 
the  car  before  tlie  train  was  made  up,  and 
gave  C()nsi(loral)le  evidence  as  to  public 
notice  given  on  the  car  platforms,  proliibit- 
ing  passengers  enienng  <ars  until  the  train 
was  made  u|»;  but  no  e.\ceplions  were  taken 


f 


NEW  TRIAL,  O-ia. 


841 


to  the  charge,  and  no  request  was  made  to 
charge  that  plaintitT  liad  the  burden  of  proof 
of  slio\vin}{  that  she  had  no  notice  not  to 
enter,  and  was  rightfully  in  the  car.  Held, 
that  such  ({uestions  could  not  he  considered 
on  motion  for  a  new  trial.  Root  v.  Catikill 
Ml.  A",  ijo.  33  Fed.  Reft.  858. 

it.  C'liHVH  wht^r«>  MiiliHtiiiitiiil  JiihUcu 
liiLH  luH'ii  done— Suhstanlial  justice  hav- 
ing hecn  done  by  the  verdict  rendered,  a  new 
trial  is  properly  refused,  though  the  motion 
therefor  contains  grounds  which,  technically 
considered,  have  some  merit.  Western  &* 
A.  A*.  Co.  V.  Lewis,  84  t»<i.  211.  10  i".  E.  Hep. 

736- 

Where  two  companies  are  jointly  liable 
for  their  negligence,  one  of  them  has  no 
right  t()  a  new  trial  because  of  the  failure 
of  justice  against  the  other,  l.oekhtxrt  v. 
l.itlU  Rock  &»  M.  R.  Co.,  40  Fed.  Rep.  631. 

2.  PisqUiilification  or  Stiiconduct  of  Jurors. 

10.  l>iN(|iialillviitiuii  <ir  iiicoiiipc- 
tt'iivy  orjurorH.— The  fact  that  the  fore- 
man of  a  jury  was  uncle  of  the  treasurer 
of  defendant  corporation,  who  was  also  a 
stockholder  and  a  witness  on  the  trial,  is 
not  sulFicient  ground  for  setting  aside  the 
verdict,  when  ddigence  has  not  been  used 
to  ascertain  the  juror's  disqualification,  and 
objection  is  not  made  before  tlie  verdict. 
J/iirrint;ton  v.  Alanehester  <S«>  L.  R.  Co.,  63 
A-.  //.  77. 

A  new  trial  will  not  be  granted  in  an  ac- 
tion against  a  railway  company  on  the 
ground  tliat  a  shareholder  of  the  company 
sat  (jn  the  jury.  WHluims  v.  Ureat  Western 
R.  Co.,  3  //.  &•  X.  869,  28  /..  J.  Ex,  2. 

The  court  will  not  grant  a  new  trial  be- 
cause one  of  the  jurors  has  not  been  sworn 
where  no  injustice  is  done  thereby.  So  held, 
in  an  action  by  a  husband  for  the  death  of 
Ins  wile.  Goose  v.  iirand  Trunk  R.  Co.,  17 
Out.  72i.-yu()TiN(J  Williams  v.  Great 
Western  K.  Co..  3  H.  &  N.  869. 

I  1.  MiNtMMMliK't  or  JiirorN,  gviiur- 
ally.  Where  ii  is  sought  to  set  aside  a 
verdict  on  the  ground  of  misconduct  of  a 
juror,  the  test  is  whether  the  misconduct 
was  such  as  to  make  it  probable  that  the 
juror's  iiiind  was  intluenced  by  it  so  as  to 
render  him  unfair  and  preju<liced.  Roo/e  v. 
C/i/i;ixo.  />'.  >>  Q.  R.  Co.,  2  AhCrary  (if.  .S.) 
-'51.  6  Red.  Re  p.  844. 

The  argument  that  the  court  ought  not  to 
set  aside  a  verdict  because  of  the  misbe- 
havior of  a  juror,  where  the  successful  party 


is  not  at  fault,  and  when  there  is  no  prej- 
udice to  the  losing  party — i.  e.,that  the  ver- 
dict is  clearly  right^cannoi  be  sustained. 
The  losing  party  is  entitled  to  a  fair  trial 
by  the  jury,  and  not  by  the  court.  Poole  v. 
Chicago,  li.  &»  Q.  R.  Co.,  2  McCrary  (  U.  S.) 
251.6  Red.  Rep.  844. 

Where  one  01  the  principal  questions  in- 
volved is  the  amount  of  damage  done  to  a 
hedge  by  fire  caused  by  defendant,  and  the 
evidence  is  conflicting,  and  one  of  the 
jurors  during  the  deliberations,  and  before 
they  have  fully  agreed  upon  their  verdict, 
states  to  the  other  members  that  he  had 
about  the  same  amount  and  kind  of  hedge 
burned  by  defendant,  and  that  defendant 
had  paid  him  $1.50  a  rod  as  damages  there- 
for, and  this  amount  is  greater  than  the 
amount  of  plaintifl's  damages,  as  shown  by 
the  evidence,  and  the  verdict  is  in  favor  of ' 
plaintifT  for  a  larger  sum  tlian  it. probably 
would  have  been  but  for  the  statement — 
field,  that  the  siatement  of  the  juror  may 
have  influenced  the  verdict,  and  is  sufficient 
to  require  a  new  trial.  Atchison,  T.  &*  S. 
F.  R.  Co.  V.  Hayes,  42  Kan.  609,  22  Pac.  Ref>. 
741. 

During  the  second  trial  of  a  negligence 
case  the  news|>apers  of  the  city  published 
an  item  stating  the  amount  of  the  verdict 
recovered  by  plaintifT  on  the  first  trial,  which 
was  read  by  members  of  the  jury ;  where- 
upon defendant's  counsel  requested  the 
court  to  arrest  the  progress  of  the  trial  and 
grant  a  new  trial.  Held,  not  ground  for  a 
new  trial.  Sherwood  v.  Chicago  «S-  W.  M. 
R.  Co.,  88  Mich.  108,  50  A'.   W.  Rep.  101. 

12.  Driiikiiiit:  of  litiiior  by  Jurors. 
— The  mere  fact  that  a  juror  in  a  civil  case 
drank  intoxicating  liquor  during  an  ad- 
journment of  the  court  while  the  trial  was 
in  progress  is  not  a  sufficient  reason  for 
granting  a  new  trial  unless  there  be  reason 
to  suspect  that  it  may  have  had  some  in- 
fluence on  the  final  result  of  the  case.  Pitts- 
hmg,  C.  <&*  St.  L.  R.  Co.  v.  Porter,  32  Ohio 
Stiy.&. 

Where  it  appears  that  during  the  prog- 
ress of  a  trial  the  prevailing  party  or  his 
attorney  has  furnished  intoxicating  liquors 
to  a  juror,  this  is  a  good  ground  for  a  new 
trial,  unless  it  is  clearly  shown  that  it  was 
not  intended  to  influence  his  action  in  the 
case,  and  that  it  had  no  influence  on  his 
inin<l  as  a  juror.  Pittsburg,  C.  &*  St.  L.  R. 
Co.  V.  Porter,  32  Ohio  St.  328. 

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quantity  of  intoxicating  liquors  for  medic- 
inal purposes  at  night.  Ne/ti,  that  this  did 
not  constitute  ground  for  granting  a  new 
trial.  O'Nt'i/I  v.  /Ceoiid-  &>  D.  M.  R.  Co., 
45  Iowa  546. 

18.  Coiiiiniiuications  with  outside 
parties. — Where  a  juryman  in  an  action 
for  wrongfully  causing  death  talks  outside 
of  the  jury  room  about  the  case  before  it  is 
decided,  he  thereby  gives  the  clearest  evi- 
dence that  he  is  not  an  i  ,a  iul  and  un- 
biased juror.  The  very  ai-.a'ssion  of  any 
matter  by  a  juror  elsewhere  than  in  the 
jury  room  tends  to  the  formin;^  if  false  im- 
pressions and  prejudgment.  v.  Chi- 
cago, B.  &*  Q.  R.  Co.,  2  McCrc.  J.  5'.)  251, 
6  Fed.  Rep.  844. 

Wliere  tlie  natural  tendency  of  v»hat  such 
a  juror  does  or  says  or  willingly  listens  to 
from  others  is  to  bias  his  mind,  or  where 
his  misconduct  evinces  a  prejudgment  of 
the  case,  or  ill  will  or  passion  against  the 
losing  party,  the  inferev^e  of  prejudice  in- 
evitably follows,  and  the  verdict  cannot  be 
said  to  be  the  result  of  a  fair  trial.  Poole 
V.  Chicago,  D.  &*  Q.  R.  Co.,  2  McCrary{U. 
5.)  251,  6  Fed.  Rep.  844. 

A  communication  by  the  successful  party 
to  jurors  pending  the  trial  if  casually  made, 
without  any  intent  to  influence  the  verdict, 
and  if  the  court  can  clearly  see  that  it  could 
not  have  had  any  effect  on  the  minds  of  the 
jurors,  is  not  ground  for  a  new  trial.  Oswald 
V.  Minneapolis  &*  N.  W.  R.  Co. ,  29  Minn. 
l,iiN.  W.  Rep.  112. 

Any  attempt  on  the  part  of  the  prevailing 
party  or  his  attorney  to  corrupt  a  juror, 
though  it  is  not  shown  to  be  successful,  is 
good  ground  for  a  new  trial.  Pittsburg,  C, 
&^  St.  L.  R.  Co.  V.  Porter,  yi  Ohio  St.  328. 

A  trial  against  a  railroad  company  for 
maliciously  bringing  a  civil  suit  against 
plaintiff  was  adjourned  from  one  day  until 
the  next,  and  the  jurors  instructed  not  to 
talk  to  any  one  about  the  case,  and  not  to 
accept  the  hospitality  of  either  party.  Af- 
ter the  adjournment  some  of  the  jurors 
asked  plaintiff  to  entertain  them  for  the 
night,  which  he  declined  to  do,  and  nothing 
was  said  about  the  trial.  Held,  not  suffi- 
cient ground  for  setting  aside  a  verdict  in 
favor  of  plaintiff,  and  granting  a  new  trial. 
Southwestern  R.  Co.  v.  Mitchell,  80  Ga.  438, 
5  S.  E.  Rep.  490. 

While  a  jury  was  deliberating  on  their 
verdict  one  of  the  jurors  was  ill,  but  was 
able  to  participate  in  the  active  considera- 


tion of  the  case,  and  after  a  general  ver- 
dict for  plaintiff  was  agreed  upon  he  was, 
with  the  consent  of  defendant,  treated  by  a 
physician.  Held,  that  defendant  was  not 
on  such  account  entitled  to  a  new  trial. 
Wesley  V.  Chicago,  St.  P.  &"  K.  C.  R.  Co., 
Z\Ioava  441,  51  TV.  \V.  Rep.  163. 

14.  View  of  locus  in  quo  by  jurors. 
— The  fact  that,  in  an  action  for  personal 
injuries  occasioned  to  plaintiff's  intestate 
by  being  struck  by  a  locomotive,  the  jury 
took  a  view  of  the  place  where  the  accident 
occurred  will  not  warrant  the  inference  that 
they  acquired  knowledge  of  material  facts 
which  were  not  put  in  evidence,  and  which 
might  have  influenced  their  verdict,  espe- 
cially if  the  view  was  taken  more  than  two 
years  after  the  accident  and  at  a  different 
season  of  the  year ;  or  that  they  rejected  as 
incorrect,  from  their  own  observations,  the 
testimony  of  a  civil  engineer  who  made 
measurements  of  certain  distances  in  tae 
vicinity  of  the  place  of  the  accident.  Tull/ 
v.  Fitchburg  R.  Co.,  \\'Am.Qr* F.ng.  R.  Cas. 
6&2,  1 34  Mass.  499. 

At  the  trial  of  a  proceeding  to  conden-n 
land  for  a  right  of  way,  two  of  the  juiors 
after  the  evidence  was  in,  but  betore  argu- 
ment, went  upon  the  land  and  examined  it 
without  permission  from  the  court.  Held, 
such  misconduct  as  to  authorize  a  new  trial. 
Ortman  v.  Union  Pac.  R.  Co.,  \^  Avi.  &* 
Eng.  R.  Cas.  136,  32  R'an.  419,  4  Pac.  Rep. 
858. 

At  the  hearing  of  a  motion  for  a  new  trial 
of  an  action  for  personal  injuries  occasioned 
by  a  collision  of  plaintiff's  team  with  de- 
fendant's car,  on  the  ground  of  misconduct 
of  one  of  the  jurors,  it  appeared  that  after 
the  arguments  had  been  made,  and  before 
the  charge  of  the  judge  had  been  given,  the 
juror  went  alone  to  view  the  premises  where 
the  accident  happened,  and  made  inquiries 
of  persons  there  concerning  the  accident, 
and  also  asked  one  who  had  been  a  witness 
in  the  case  where  he  stood  at  the  time  of 
the  accident,  and  the  place  was  pointed  out 
to  him.  The  jury  had  taken  a  view  of  the 
premises  previously  by  direction  of  the 
court.  Held,  that  the  judge  in  the  exercise 
of  his  discretion  properly  granted  a  new 
trial.  Harrington  v.  Worcester,  L.  &>  S. 
St.  R.  Co.,  157  Mass.  579,  32  AK  E.  Rep.  955. 

The  juror  was  asked  by  defendant,  "  Did 
you  see  or  hear  anything  at  the  time  you 
viewed  the  premises  alone  that  influenced 
your  mind  fuie  way  or  the  other  in  relation 


■H 


NEW  TRIAL,  15-17. 


843 


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. 


to  this  case,  or  anything  that  influenced 
your  mind  against  plaintiffs  or  tlieir  cause 
in  any  degree  ?  "  NM,  that  the  question 
was  properly  excluded.  Harrington  v. 
Worcester,  Z.«S-  5.  St.  R.  Co.,  157  Mass.  5.79, 
32  A'.  E.  Rep.  955. 

15.  Irregular  mode  of  arriving  at 
verrtict. — In  a  damage  suit  the  fact  that 
the  jury  arrived  at  the  measure  of  damages 
by  dividing  by  twelve  the  aggregate  of  the 
several  amounts  which  each  had  privately 
jotted  down  is  not  a  ground  for  a  new 
trial  where  the  amount  thus  ascertained  is 
freely  assented  to  by  each  juror.  Miller  v. 
St.  Louis  R.  Co.,  5  Mo.  App.  471. 

Affidavits  to  the  effect  that  the  jury 
reached  a  verdict  by  aggregating  twelve 
different  sums  and  dividing  by  twelve,  the 
quotient  corresponding  with  the  verdict,  are 
not  sufficient  to  impeach  the  verdict.  St. 
Clair  V.  Missouri  Pac.  R.  Co. ,  29  Mo.  App. 
76. 

3.  Verdict  against  Law  or  Evidence; 
Defective  Verdict. 

16.  Verdict  against  law  or  the  iii- 
striictioiLs  of  the    court.— When   the 

verdict  of  the  jury  is  contrary  to  the  instruc- 
tions of  the  court  announcing  the  law  cor- 
rectly, or  is  not  properly  supported  by  the 
proof,  the  court  should  set  it  aside.  New 
Orleans,  J.  &*  G.  N.  R.  Co.  v.  Enochs,  42 
Miss.  603.— Following  Mississippi  C.  R. 
Co.  V.  Miller,  40  Miss.  45. — Followed  in 
Memphis  &  C.  R.  Co.  v.  Orr,  43  Miss.  279. 

The  refusal  of  the  court  to  do  so,  upon 
proper  application,  is  reversible  error. 
Omaha  <3-  R.  V.  R.  Co.  v.  Hall,  33  Neb.  229, 
50  N.  W.  Rep.  10. 

A  verdict  will  be  set  aside,  notwithstand- 
ing the  presumption  of  law  that  an  accident 
was  caused  by  the  negligence  of  the  rail- 
road, when  four  unimpeached  and  uncontra- 
dicted witnesses  have  testified  that  the 
accident  was  unavoidable.  Brunsrvick  &^ 
A.  R.  Co.  V.  Gale,  56  Ga.  322. 

The  action  being  for  injuries  to  plaintiff, 
who  was  struck  by  a  train  when  crossing  a 
track,  if  it  clearly  appears  from  plaintiffs 
evidence  that  he  could  have  avoided  the 
injuries  by  the  use  of  ordinary  care,  a  new 
trial  should  be  granted  after  verdict  in  his 
favor,  whether  the  railroad  company  was 
negligent  or  not.  Atlanta  &*  IV.  P.  R.  Co. 
V.  Lo/tin,  86  Ga.  43,  12  S.  E.  Rep.  186. 

17.  Verdict  uiiHupported  bj*  evi- 
dence—New trial  granted.— A  new  trial 


will  be  ordered  upon  a  question  of  fact 
where  the  verdict  has  nothing  to  sustain  it, 
and  is  therefore  capricious.  McNair  v. 
South  Carolina  R.  Co.,  10  Rich.  {So.  Car.) 
284. 

A  new  trial  may  be  awarded,  although  the 
verdict  be  supported  by  some  evidence, 
where  it  appears  that  the  evidence  is  insuf- 
ficient to  justify  the  verdict.  Pederson  v. 
Seattle  Con.  St.  R.  Co.,  6  IVash.  202,  33  Pac. 
Rep.  351,  34  Pac.  Rep.  665. 

Negligence  cannot  be  presumed,  but  must 
be  affirmatively  proven;  and  when  the  testi- 
mony fails  to  show  that  defendant,  in  an 
action  for  damages  for  injury  caused  by 
it,  was  negligent,  and  that  its  negligence 
caused  the  injury,  a  new  trial  will  be  grant- 
ed. Jacksonville  St.  R.  Co.  v.  Chappell, 
28  Am.  &•  Eng.  R.  Cas.  227,  21  Fla.  175. 

The  court  may  set  aside  a  verdict  for  the 
plaintiff  in  an  action  for  personal  injury  on 
the  ground  of  insufficiency  of  the  evidence 
to  show  that  there  was  no  contributory  neg- 
ligence, notwithstanding  the  preponderance 
of  evidence  in  his  favor  on  the  question  of 
negligence.  Breen  v.  Railway  Transfer  Co., 
51  Minn.  4,  52  N.  W.  Rep.  975. 

A  new  trial  will  be  granted  for  want  of 
evidence  to  support  a  special  finding  of 
facts  by  the  jury  in  answer  to  interrogato- 
ries, only  when  it  would  be  granted  for  in- 
sufficiency of  evidence  to  support  the  gen- 
eral verdict.  Indianapolis  &^  St.  L.  R.  Co. 
V.  Stout,  53  /nd.  143. 

A  verdict  against  evidence  will  not  be 
pMmitted  to  stand  because  it  is  the  third 
ti  le  that  the  case  has  been  submitted  to  a 
ju  y.  The  court  should  set  aside  a  verdict 
if  100  juries  insist  on  depriving  a  suitor  of 
his  property  without  evidence,  no  matter 
how  great  or  how  small  the  wrong  may  be. 
Lot^e  V.  Railroad  Co.,  10  Phila.  (Pa.)  153. 

Plaintiff  having  testified  that  he  could 
easily  have  avoided  injury,  and  having 
failed  to  explain  why  he  omitted  to  do  so, 
and  his  declaration  alleging  that  he  was 
injured  after  he  discovered  that  the  danger 
was  imminent,  a  new  trial  should  be  award- 
ed. Chattanooga,  R.  &*  C.  R.  Co.  v.  Hug- 
gins,  52  Am.  &•  Eng.  R.  Cas.  473,  89  Ga. 
494,  1 5  S.  E.  Rep.  848. 

Where,  in  executing  interrogatories  for  a 
witness,  in  an  action  against  a  company  for 
damages  caused  by  fire  from  an  engine,  the 
witness  was  made  to  say  that  he  "  saw  the 
fire  burning  about  fifty  feet  of  the  road," 
when  he  had  in  fact  testified  that  he  "saw 


I 


844 


NEW  TRIAL,  18,  19. 


ft:. 


i^i 


tlie  fire  burning  about  fifty  feet  off  the 
road,"  and  it  also  being  exceedingly  doubt- 
ful ihat  the  verdict  was  warranted  by  the 
evidence,  a  new  trial  was  granted.  Georgia 
R.  &^  n.  Co.  V.  Clark,  90  Ga.  4,  155.  E.  Rep. 
786. 

Where  the  action  is  for  an  injury  at  a 
crossing,  and  the  negligence  relied  upon  is 
a  failure  to  ring  a  bell  or  sound  a  whistle, 
and  the  plaintiff  and  another  witness  swear 
that  they  did  not  hear  either,  and  the  con- 
ductor swears  positively  to  having  sounded 
the  whistle,  and  another  witness  that  he 
heard  it,  there  is  not  sufficient  evidence  to 
sustain  a  verdict  for  plaintiff,  and  a  new 
trial  should  be  awarded.  Seibert  v.  En  ii 
Co.,  49  Barb.  (N.  K)  583. 

In  an  action  by  a  conductor  against  the 
company  for  the  loss  of  two  fingers,  the 
evidence  showed  that  he  continued  in  the 
employment  of  the  company  for  two  years 
after  the  accident,  and  received  higher 
wages  than  before,  until  he  was  discharged 
for  neglect  of  duty,  but  that  at  the  time  of 
bringing  suit  he  was  receiving  lower  wages 
for  other  work.  Held,  that  a  new  trial  was 
properly  granted  on  motion  of  the  company 
on  the  ground  that  the  evidence  did  not 
show  that  the  plaintiff's  earning  capacity 
was  diminished  by  the  accident.  Kane  v. 
Savannah,  F.&'W.R.  Co.,  85  Ga.  858,  11  S. 
E.  Rep.  493. 

Plaintiff  sued  to  recover  damages  to  his 
land  by  the  building  of  defendant's  road,  and 
alleged  in  one  paragraph  of  his  complaint 
that  the  company  had  agreed  to  pay  him  a 
certain  amount,  which  was  not  paid.  An- 
other paragraph  alleged  that  he  instituted 
proceedings  against  the  company,  and  that 
while  the  sanje  were  pending  on  appeal 
the  company  agreed  to  pay  him  the  same 
amount  to  have  a  hearing  postponed.  At 
the  trial  he  first  testified  that  the  amount 
atjreed  to  be  paid  was  to  >rocure  postpone- 
ment only,  but  afterwards,  on  cross-exami- 
nation, admitted  that  it  was  to  include  dam- 
ages for  a  right  of  way  across  his  premises. 
Held,  that  a  verdict  in  his  favor  awarding 
the  amount  claimed  for  a  postponement 
of  the  litigation  should  be  set  aside.  Nutting 
V.  Kings  County  El.  R.  Co.,  42  N.  Y.  S.  R. 
621,  62  Hun  621,  16  \\  V.  Supf>.  673. 

18.  new  trial  refused.— The  ap- 
pellate court  will  not  disturb  a  verdict  on  the 
sole  ground  that  in  its  opinion  the  proof 
was  not  sutficient  to  support  it,  when  it  ap- 
pears tuat   iliero  was   lawful  evidence  on 


which  to  base  such  verdict.  International 
&^  G.  N.  R.  Co.  v.  Dawson,  62  Tex.  260. 
Richmond  &^  D.  R.  Co.  v.  Green,  73  Ga. 
814. 

The  fact  that  a  verdict  in  a  damage  suit 
rests  wholly  upon  inference  to  be  drawn 
from  the  evidence  and  upon  expert  testi- 
mony, and  that  no  one  can  affirm  witii  cer- 
tainty that  it  is  right,  is  no  ground  for  set- 
ting it  aside.  Estill  v.  New  York,  L.  E.  <&>• 
W.  R.  Co.,  41  Fed.  Rep.  849. 

A  third  verdict  for  plaintiff  in  a  personal 
injury  case  should  not  be  set  aside  unless 
the  evidence  is  clearly  insufficient  to  sustain 
it,  or  error  otherwise  clearly  appears.  Har- 
rigan  v.  Savannah,  F.  &*  W,  R,  Co.,  84  Ga. 
793,  11  S.  E.  Rep.  965. 

Plaintiff  was  assistant  yardsman  for  de- 
fendants, his  duty  being  to  marshal  and 
couple  cars  subject  to  the  orders  of  the  con- 
ductor of  a  shunting  engine, to  whose  orders 
the  engine  driver  was  also  subject.  Accord- 
ing to  his  evidence,  while  attempting  to 
carry  out  specific  instructions  received  from 
the  conductor,  which  the  latter  denied,  as 
to  coupling  certain  cars,  the  conductor  neg- 
ligently allowed  the  cars  to  be  backed  up, 
thus  driving  them  together  and  injuring 
him.  Plaintiff  had  for  a  long  time  been  in 
defendants' employment,  was  thoroughly  ex- 
perienced in  his  duties,  had  never  received 
specific  instructions  before,  and  knew  be- 
fore he  went  in  between  the  cars  that  the 
engine  was  in  motion  backing  up,  and  only 
eight  feet  distant.  On  a  motion  to  set 
aside  a  verdict  for  plaintiff  the  court,  though 
not  satisfied  with  the  verdict,  was  of  opin- 
ion that  there  was  evidence  for  plaintiff  to 
be  submitted  to  the  jury,  and  therefore  re- 
fused to  interfere  either  by  granting  a  non- 
suit or  a  new  trial.  IVeegar  v.  Grand 
Trunk  R.  Co,,  23  Ont.  436. 

]f>.  Verdict  founded  on  indefinite 
and  unsatisfactory  evidence.— A  ver- 
dict will  be  set  aside  where  proof  of  dam- 
age as  presented  in  the  statement  of  facts 
is  indefinite,  general,  and  unsatisfactory. 
International  &^  G.  N.  A'.  Co,  v.  Jordan,  i 
Tex.  App.  {Civ.  Cas.)  494. 

Where  the  evidence  cfvicerning  an  injury 
is  very  loose,  and  no  medical  witnesses  are 
called,  the  jury  returning  a  verdict  for 
$2000,  a  new  tria!  will  be  granted  on  pay- 
ment of  costs.  Watson  v.  Northern  R.  Co., 
24  U.  C.  Q.  B.  98. 

Wlien  plaintiff's  declaration  alleges  that 
her  husband  was  killed  in  a  specified  way 


NEW   TRIAL,  20,  21. 


845 


tonal 
260. 
Ga. 

suit 
ravvn 
esti- 
cer- 
set- 


' 


by  the  negligent  running  of  a  particular 
train  or  engine,  and  the  proof  shows  that  lie 
was  liilled  by  another  engine  of  tiic  com- 
pany, and  in  a  manner  different  from  that 
alleged,  and  the  evidence  is  such  that,  in 
any  view  of  the  case,  plaintiff's  right  to  re- 
cover is  very  doubtful,  a  verdict  in  her 
favor  should  be  set  aside.  Central  K.  Co. 
V.  Hubbard,  86  Ga.  623,  12  S.  E.  Kep.  1020. 
—Criticising  Port  Royal  &  A.  R.  Co. 
V.  Tompkins,  83  Ga.  759.  Foi.i  owing 
Georgia  R.  &  B.  Qo.'v.  Oaks,  52  Ga.  410; 
Mayor,  etc.,  of  Montezuma  z/.  Wilson,  82  Ga. 
206.  Reviewing  Central  R.  &  B.  Co.  v. 
Avant,  80  Ga.  195. 

Plaintiff  was  engaged  as  a  bridge  watch- 
man and  claimed  to  be  injured  by  a  passing 
train  which  threw  him  from  a  trestle.  The 
only  evidence  to  support  this  theory  was 
that  of  three  witnesses  who  visited  the 
place  several  hours  afterwards  and  swore 
that  they  found  blood  at  the  foot  of  an  em- 
bankment some  thirty  to  fifty  feet  from  the 
top  of  the  trestle,  i^'laintiff  was  rendered 
unconscious,  and  when  he  recovered  knew 
nothing  of  the  details  of  the  accident.  The 
evidence  of  thetrainmen  and  two  passengers 
was  to  the  effect  that  he  was  struck  v  hile 
sitting  at  the  end  ok  the  bridge  on  or  near 
the  trac<,  and  that  he  was  picked  up  at  the 
top  of  the  embankment.  Held,  that  a  ver- 
dict for  plaintiff  was  not  sustained  by  the 
evidence.  Pike  v.  Chicago  &*  A.  R.  Co.,  41 
Fed.  Rep.  95. 

20.  Verdict  against  weig^Iit  of  evi- 
dence—General rules.— To  warrant  the 
setting  aside  of  a  verdict  in  a  negligence 
case  as  against  the  weight  of  evidence,  the 
preponderance  must  be  so  great  as  to  evince 
that  the  jury  were  unable  to  understand,  or 
in  fact  misapprehended,  the  law  or  the  evi- 
dence, or  that  they  were  influenced  by  par- 
tiality, prejudice,  or  other  improper  motive. 
Housatonic  R.  Co.  v.  Knowles,  30  Conn.  313. 
—Following  Daley  v.  Norwich  &  W.  R. 
Co.,  26  Conn.  591. — Pike  v.  Chicago  iS-  A. 
R.  Co.,  41  Fed.  Rep.  95.  Empey  v.  Grand 
Ave.  Cable  Co.,  45  Mo.  App.  422.  Texas 
Pac.  R.  Co.  V.  Buckelew,  3  Tex.  Civ.  App. 
272,  22  S.  W,  Rep,  994. 

But  a  preponderance  of  evidence  does 
not  necessarily  depend  upon  the  number  of 
witnesses,  especially  where  some  of  defend- 
ant's witnesses  corroborate  a  straightfor- 
ward, consistent  story  detailed  by  the  plain- 
tiff. Redlien  v.  Long  Island  R.  Co.,  7  N.  Y. 
S,  R.  263,  43  Hnn  639. 


A  fair  preponderance  in  this  connection 
means  evidence  of  such  character  and 
weight  as  will  carry  conviction  to  the  minds 
of  the  jurors  of  the  existence  of  the  facts 
sought  to  be  proven.  Schick  v.  Brooklyn 
City  R.  Co.,  32  N.  Y.  S.  R.  245,  10  N.  Y. 
Supp.  528. 

A  new  trial  should  be  allowed  when  it  is 
clear  tiiat  material  uncontradicted  evidence 
has  been  disregarded  by  the  jury,  and 
which,  if  considered  and  given  due  weight, 
would  have  required  a  ditlerent  verdict 
from  that  returned.  Chicago,  B.  «S^  Q.  R. 
Co.  V.  Landauer,  S4  A  &"  Eng.  R.  Cas. 
640,  36  Neb.  642,  54  N.       .  Rep.  976. 

Where  the  verdict  is  against  the  weight 
of  evidence  on  one  of  the  essential  questions 
of  fact  submitted  to  the  jury,  a  new  trial 
will  be  granted.  Good  v.  New  York,  L.  E. 
&"  IV.  R.  Co.,  18  A'.  K  S.  R.  772,  50  Hun 
601,  2  N.   Y.  Supp.  419. 

A  mere  preponderance  of  e\ridence  against 
a  verdict  will  not  authorize  the  supreme 
court  to  reverse  a  judgment  entered  there- 
on when  the  evidence  in  favor  of  it,  taken 
by  itself,  is  sufficient  to  sustain  it.  Houston 
&^  T.  C.  R.  Co.  V.  Larkin,  64  Tex.  454. 

Where  the  question  of  contributory  neg- 
ligence has  been  fairly  submitted  to  the 
jury,  and  they  have  found  the  facts  against 
the  railroad,  the  court  will  not  disturb  this 
finding  unless  it  be  clearly  against  the 
weight  of  the  evidence.  Chicago,  B.  <5>»  Q. 
R.  Co.  V.  McLallen,  84  ///.  109,  16  Am.  Ry. 
Rep.  425. 

21.  discretionary  power  of  the 

court. — Where  a  trial  court  is  of  opinion 
that  a  verdict,  although  supported  by  some 
evidence,  is  against  the  weight  of  evidence, 
it  may  be  justified  in  setting  it  aside,  and 
submitting  the  case  to  a  second  jury,  when 
the  court  would  not  feel  warranted  in  dis- 
turbing a  second  verdict,  although  rendered 
on  the  same  evidence.  Buenemann  v.  St. 
Paul,  M.  &*  M.  R.  Co.,  18  Am.  &•  Eng.  R. 
Cas.  1 53,  32  Minn.  390,  20  A'.  IV.  Rep.  379, 

The  discretion  to  award  a  new  trial  be- 
cause the  verdict  is  against  the  weight  of 
evidence  is  not  confined  to  the  trial  court, 
but  may  and  should  be  exercised  by  the  ap- 
pellate tribunal  when  it  is  clear  that  justice 
has  not  been  done,  and  it  is  probable  that  a 
new  trial  will  result  differently.  Vincent  v. 
Chicago  &*  N.  IV.  R.  Co.,  29  Iowa  592. 

While  the  supreme  court  will  not  exer- 
cise so  great  a  discretion  m  granting  a  new 
trial  as  sliould  the  district  judge  whf)  hears 


fh. 


S46 


NEW  TRIAL,  22. 


m 

m 


the  evidence,  yet  when  the  record  shows 
tliat  there  is  a  deficiency  of  evidence  to 
support  the  action,  and  it  is  manifest  that 
the  verdict  is  clearly  contrary  to  the  evi- 
dence, it  has  never  felt  wanting  in  power 
to  reverse  a  judgment  based  on  such  a  ver- 
dict. Houston  &^  T.  C.  K.  Co.  v.  Schmidt, 
21  Am.  &^  Eng.  R.  Cas.  345,  6 1  Tex.  282. 

22.  wlicii  u  new  trial  Nlioiild 

be  {yrsiHtecl.— (i)  In  general.  —  Where  a 
company  is  sued  for  causing  the  death  of 
one  of  its  employes  from  the  alleged  im- 
proper construction  of  a  switch  track,  a  ver- 
dict for  plaintiff  should  be  set  aside  where 
it  is  proven  by  experts  that  the  switch 
tracks  were  properly  constructed  and  in 
good  condition.  St.  Louis  Bridge.  Co.  v. 
F'-llrnvs,  39  ///.  App.  456. 

A  finding  of  the  jury  in  favor  of  plaintiflf, 
and  directly  in  conflict  with  his  own  testi- 
mony, indicates  that  the  jury  were  in- 
fluenced by  passion  in  arriving  at  their  ver- 
dict. Jeffrey  v.  Keokttk  &^  D,  M.  R.  Co.,  51 
Joiua  439. 

Where  the  evidence  clearly  shows  that 
tliere  was  no  negligence  on  the  part  of  de- 
fendant, and  that  plaintiff  did  not  exercise 
due  care,  a  verdict  for  plaintiff  will  be  set 
aside.  PulltUro  v.  Delaware,  L.  &^  IV.  R. 
Co.,  39  A^.  V.  S.  R.  293.  15  iV.  v.  Supp.  783. 
Cawley  v.  Winnifrede  R.  Co.,  31  W.  Va. 
116,  55.  £".  Rep.  318. 

A  verdict  against  a  street-railway  com- 
pany for  killing  a  boy  will  be  set  aside  as 
against  the  weight  of  evidence  where  but 
two  witnesses  for  the  plaintiff  testify  that 
the  death  was  caused  by  the  conductor 
shoving  the  boy  off  the  car,  one  of  whom  is 
a  girl  of  thirteen  and  susceptible  of  influence, 
and  both  make  confused  and  contradictory 
statements ;  and  where  the  conductor  and 
four  others  testify  positively  that  the  con- 
ductor did  not  touch  the  boy,  but  that  he 
let  go  and  fell  off  upon  seeing  the  con- 
ductor coming  towards  him.  Heusner  v. 
Houston,  W.  S.  6-  P.  F.  R.  Co.,  27  N.  Y. 
Supp.  365,  57  N.   Y.  S.  R.  528,  7  Misc.  48. 

A  third  verdict  in  a  damage  suit  will  be 
set  aside  where  it  is  clearly  against  the 
weight  of  evidence,  although  there  has  been 
two  previous  concurring  verdicts,  Carlin 
V.  Chicago,  R.  I.  6-  P.  R.  Co.,  37  Iowa  316, 
8  Am.Ry.  Rep.  141. 

Although  after  two  trials,  with  a  like 
finding  by  the  jury,  the  court  would  not  set 
aside  a  verdict  merely  because  tlie  evidence 
IS  deemed  greatly  preponderating  against  it 


upon  a  question  of  negligence,  yet  the  fact 
that  the  jury  has  also  found,  on  a  question 
of  damages,  in  decided  opposition  to  the 
views  of  the  court  upon  the  testimony, 
forms  a  coincidence  which  strengthens  tlie 
apprehension  of  h'as  and  partiality,  and 
may  require  interference  even  where,  upon 
either  ground  alone,  it  might  have  been  re- 
fused. Gilligan  v.  New  York  Of  H.  R.  Co., 
I  E.  D.  Smith  (yV.  K)  453. 

(2)  Illustrations.  —  When  the  evidence 
shows  conclusively  that  the  servants  of  a 
railroad  company  used  all  ordinary  and 
reasonable  care  and  diligence  to  prevent 
killing  a  cow,  a  verdict  in  favor  of  the 
owner  for  the  value  of  the  animal  is  con- 
trary to  law  and  the  evid-  je,  and  should 
be  set  aside.  Georgia  R.  <V  B.  Co.  v.  Walk- 
er, 87  Ga.  204,  135.  E.  Rep.  511. 

Plaintiff  had  his  eye  put  out  while  being 
ejected  from  defendant's  freight-car,  and  on 
his  part  there  was  no  evidence  except  his 
own  as  to  how  the  injury  occurred,  while 
the  evidence  for  defendant  sliowed  that  it 
was  the  result  of  his  own  fault.  Held,  that  a 
verdict  for  plaintiff  should  be  set  aside  as 
against  the  weight  of  evidence.  Finney  v. 
Northern  Pac.  R.  Co.,  12  Am.  6f  Eng.  R. 
Cas.  17,  3  Dak.  270,  16  A'.   W.  Rep.  500. 

The  evidence  showing  that  a  shipment  of 
mules  was  made  on  a  valid  special  contract, 
at  a  reduced  rate  of  freight,  and  the  finding 
of  the  jury  being  upon  the  basis  of  general 
liability,  irrespective  of  the  special  contract, 
the  verdict  was  contrary  to  law  and  the  evi- 
dence, and  the  court  erred  in  not  granting 
a  new  trial.  Georgia  R.  &*  B.  Co.  v.  Reid, 
55  Am.  <S>»  E>tg.  R.  Cas.  363,  91  Ga.  277<  17 
S.  E.  Rep.  934. 

Upon  a  motion  for  a  new  trial,  in  an 
action  where  plaintiff  obtained  a  verdict  for 
injuries  received  by  means  of  an  alleged  de- 
fective car,  it  appearing  that  the  overwhelm- 
ing weight  of  evidence  was  in  favor  of  a 
sound  car,  that  plaintiff's  account  of  the 
manner  of  his  injury  was  improbable,  and 
his  admissions  to  others,  before  the  action 
was  brought,  differing  therefrom — held,  that 
the  jury  must  have  been  influenced  by  some 
improper  motive  in  rendering  a  verdict  for 
plaintiff,  and  a  new  trial  should  be  ordered. 
Roberts  v.  Boston  <S-  AI.  R.  Co.,  83  Me.  298, 
22  Atl.  Rep.  174. 

Plaintiff  testified  that  while  he  was  a  pas- 
senger the  conductor  and  other  passengers 
said  to  him  and  in  his  presence  that  they 
intended  to  tie  his  hands,  rob  him,  and  then 


NEW  TRIAL,  23. 


847 


'alk- 


throw  him  from  the  car  window,  which  he 
believed,  and  which  so  frightened  him  that 
he  jumped  from  the  moving  train  and  was 
injured.  By  the  company  it  was  proven 
that  lie  had  been  drmking,  and  the  evidence 
tended  to  show  that  he  was  suffering  from 
delirium  tremens  or  some  other  disorder  of 
the  mind,  and  the  story  about  threatening 
to  rob  him  was  emphatically  denied  by  the 
conductor.  Held,  that  a  verdict  for  a  large 
sum  for  plaintifF  should  be  set  aside  and  a 
new  trial  granted.  Spohn  v.  Missouri  Pnc. 
R.  Co.,  26  Am.  <S-  En^.  R.  Cas.  252,  87  Mo. 
74.  —  Followed  in  Duggan  v.  Wabash 
Western  R.  Co.,  46  Mo.  App.  266. 

Plaintiff  sued  a  street-car  company  for 
personal  injuries,  and  proved  by  himself  and 
two  otiier  witnesses  negligence  on  the  part 
of  the  company,  and  due  care  on  his  own 
part.  One  of  these  witnesses  lived  in  the 
house  with  plaintiff,  and  the  other  was  a 
relative,  and  the  similarity  of  their  evidence 
was  such  as  to  excite  suspicion.  They  were 
directly  contradicted  by  five  witnesses  on 
the  part  of  the  company,  four  of  whom 
were  disinterested,  and  none  of  them  im- 
peached or  their  evidence  shaken  on  cross- 
examination.  Held,  that  the  verdict  for 
plaintiff  was  against  the  weight  of  evidence 
and  should  be  set  aside.  McCarthy  v. 
Christopher  &»  T.  St.  R.  Co.,  10  Daly  I^N.  F.) 
540.— Applied  in  Shultz  v.  Third  Ave.  R. 
Co.,  15  Daly  95,  2  N.  Y.  Supp.  693,  19  N.  Y. 
S.  R.  917. 

In  a  suit  against  a  street-car  company  for 
running  over  a  boy  a  little  more  than  three 
years  old,  it  was  sought  to  establish  negli- 
gence on  the  part  of  the  driver  in  that  he 
was  sitting  instead  of  standing,  ti.at  the  car 
was  moving  at  an  excessive  rate  of  speed, 
and  that  he  did  not  promptly  apply  the 
brakes ;  but  the  evidence  on  the  part  of  the 
company  tending  to  negative  these  several 
charges  greatly  outweighed  plaintiff's  evi- 
dence. Held,  that  a  verdict  for  plaintiff 
should  be  set  aside  and  a  new  trial  granted. 
Trotcky  v.  Forty-second  St.  &>  G.  S.  F.  R. 
Co.,  72,  Hun  26,  57  N.   V.  S.  R.  155. 

23.  when  a  new  trial  should  bo 

refused. — The  supreme  court  will  not 
award  a  new  trial  on  the  mere  weight  of  the 
evidence.  Terre  Haute  <S<«  /.  A'.  Co.  v.  fack- 
son,  95  Ind.  594. 

A  new  trial  in  a  personal  injury  case  will 
not  be  granted  for  a  verdict  against  evidence 
unless  the  verdict  is  so  manifestly  against 
the    evidence    as    to    show  that  the  jury 


adopted  some  wrong  principle  in  their  de- 
liberations, or  that  their  minds  were  not 
open  to  reason  and  conviction,  or  that  in 
some  way  they  were  improperly  and  unduly 
influenced.  Daley  v.  A'orivich  &'IV.R.  Co., 
26  Conn.  591.— Followed  in  Housatonic  R. 
Co.  V.  Knowles,  30  Conn.  313. 

Diligence  and  the  want  of  it  are  questions 
of  fact  to  be  determined  by  the  jury  under 
the  evidence  and  the  charge  of  the  court, 
and  a  new  trial  ought  not  to  be  granted  by 
the  trial  judge  unless  the  jury  find  strongly 
and  decidedly  against  the  weight  of  testi- 
mony.     H'^al/ace  v.  Clayton,  42  Ga.  443. 

In  a  civil  action  triable  by  jury  as  a  mat- 
ter of  right,  if  there  be  evidence  tending  to 
establish  plaintiff's  cause  of  action  in  sub- 
stance as  alleged,  the  verdict  will  not  be 
disturbed  merely  on  the  ground  that  there 
is  evidence  of  an  opposite  tendency.  Colo- 
rado Midland  R.  Co.  v.  O'Brien,  48  Aw.  &* 
Eng.  R.  Cas.  235,  16  Colo.  219,  27  Pac.  Rep. 
701.  Allen  V.  Chicago,  M.  6-  St.  P.  R.  Co., 
44  Minn.  165,  46  N.  IV.  Rep.  306. 

A  new  trial  ought  not  to  be  granted  on 
the  ground  that  the  verdict  is  against  the 
weight  of  evidence  unless  the  verdict  is  one 
which  a  jury  viewing  the  whole  of  the  evi- 
dence reasonably  could  not  properly  find. 
Metropolitan  R.  Co.  v.  Wright,  1 1  App.  Cas. 
152.— Applied  in  How  v.  London  &  N.  W. 
R.  Co.,  [1892]  I  Q.  B.  391. 

In  a  suit  against  a  carrier  for  the  loss  of  a 
trunk  where  the  shipper  placed  a  value  upon 
the  trunk  at  the  time  of  shipment  much  less 
than  the  amount  of  the  verdict  in  favor  of 
the. plaintiff,  a  new  trial  will  not  be  granted 
at  his  instance,  especially  where  the  verdict 
is  not  decidedly  against  the  weight  of  evi- 
dence.    Green  v.  Southern  Exp.  Co.,  45  Ga. 

305- 

Where  in  a  suit  for  the  killing  of  a  mule 
only  the  engineer  was  sworn  for  defendant 
to  show  the  use  of  all  ordinary  and  reason- 
able care,  although  he  testified  that  tlie  fire- 
man was  engaged  in  firing  at  the  time,  and 
where  there  was  a  difference  cf  opinion 
about  the  distance  at  which  the  mule  could 
have  been  seen,  and  there  was  some  conflict 
between  the  testimony  of  the  engineer  and 
the  statements  testified  by  other  witnesses 
to  have  been  made  by  him  as  to  reversing 
the  engine  and  blowing  on  the  brakes,  there 
was  no  abuse  of  discretion  in  refusing  a  new 
trial  on  the  ground  that  the  verdict  was 
contrary  to  law  and  evidence.  East  Tenn., 
V.  &•  G.  R.  Co.  V.  Culler,  75  Ga.  704.— Dis- 


I 


848 


NEW   TRIAL,  24. 


U'i 


TINGUISHED  IN  Savannah.  F.  &  W.  R.  Co. 
V.  Gray,  77  Ga.  440,  3  S.  E.  Rep.  158. 

It  appearing  that  plaintiff  was  absent  from 
her  home  wlien  a  fire  began,  for. causing 
which  she  brought  suit,  and  it  not  appear- 
in};  that  she  had  any  part,  or  lot  in  it,  a 
ground  for  new  trial  that  the  jury  failed  to 
consider  the  contributory  negligence  on 
her  part  is  not  tenable.  For/  Royal  &^  IV. 
C.  A\  Co.  V.  Gr/^n,  86  Ga.  172, : 2  S.  E.Rep. 

303 

Where  a  general  verdict  is  returned  for 
plaintiff,  whicii  is  correct  if  either  one  of 
three  several  facts  exist,  and  special  ques- 
tions are  submitted  to  the  jury  as  to  exist- 
ence of  these  facts,  and  all  answered  in  the 
affirmative,  the  verdict  will  not  be  set  aside 
as  iigainst  the  evidence  if  one  of  these  an- 
swers is  supported  by  the  testimony,  al- 
though the  second  answer  is  clearly  and  the 
third  probably  against  the  evidence.  MiS' 
souri,  K,  &•  T.  R.  Co.  v.  Weaver,  16  Kan. 
456. 

Where  the  evidence  taken  on  the  hearing 
of  a  petition  for  a  new  trial  in  an  action  for 
personal  injury  tends  to  show  that  the  in- 
jury was  committed  in  a  somewhat  different 
manner  from  that  testified  to  by  some  of 
the  witnesses  on  the  trial,  but  does  not  neg- 
ative the  commission  of  the  injury,  it  is  in- 
sufficient to  justify  the  vacating  of  the  judg- 
ment. Omaha,  N.&^B.H  R.  Co.  v.  O'Don- 
nell,  24  Neb.  753,  40  iV.  W.  Rep.  298. 

Where  plaintiff  sues  for  damages  sus- 
tained in  a  collision,  ard  the  proof  is  that 
he  had  left  his  seat  and  gone  to  the  plat- 
form, and  was  the  only  person  injured,  but 
the  jury  find  that  he  was  free  from  negli- 
gence, this  being  a  question  within  their 
province  to  decide,  the  court  will  not  set 
aside  the  verdict  as  being  against  the  weight 
of  evidence.  Collins  v.  Albany  &^  S.  R.  Co., 
12  Barb.  (N.  Y.)  492.— Distinguished  in 
South  Western  R.  Co.  v.  Paulk,  24  Ga.  356. 

Where  every  question  in  a  damage  suit  is 
closely  contested,  and  the  case  is  submitted 
to  the  jury  on  proper  instructions,  a  ver- 
dict for  plaintiff  will  be  permitted  to  stand, 
where  the  evidence  is  sufficient  to  sustain 
it,  if  found  true  by  the  jury.  Brennan  v. 
New  York  C.  &'  H.  R.  R.  Co.,  30  A^.  Y.  S. 
R.  378,  55  Hun  611,  8  A^.  Y.  Supp.  716. 

Plaintiff  testified  that  he  was  injured  while 
riding  on  the  platform  of  a  street-car ;  but  he 
was  contradicted  by  the  driver  of  the  car  and 
another  witness  who  testified  that  he  was 


riding  on  the  guard  rail.  Held,  that  a 
verdict  in  his  favor  was  not  against  the 
weight  of  evidence,  as  the  jury  had  a  right 
to  believe  his  evidence  rather  than  th;it  of 
the  two.  Hourney  v.  Brooklyn  City  R.  Co.,  27 
A'.  Y.  S.  R.  49,  7  N.  Y.  Supp.  602  ;  affirmed 
in  130  A^.  K.  641,  mem.,  29  A^.  E.  Rep.  1033, 
41  N.   Y.  S.  R.  950. 

24.  Application  oftlie  rule  to  eases 
of  conflicting:  evidence. —  As  a  rule, 
wliere  there  is  a  conflict  of  testimony,  the 
preponderance  must  be  overwhchning  to 
induce  a  court  to  disturb  a  verdict.  Cheney 
V.  New  York  C.  &>  H.  R.  R.  Co.,  16  Htm 
{N.   F.)4i5- 

In  an  action  against  a  railroad  for  negli- 
gence where  the  evidence  is  conflicting,  and 
no  exceptions  are  taken  to  the  charge,  the 
verdict  will  not  be  disturbed.  King  v.  New 
York,  L.  E.  &•  W.  R.  Co.,  50  A'.  Y.  S.  R. 
103,  66  Hun  636,  21  A^.  Y.  Supp.  829. 

In  an  action  for  personal  injuries,  where 
there  is  a  conflict  of  evidence,  the  appellate 
court  will  not  interfere  with  the  verdict. 
Chicago  VV.  D.  R.  Co.  v.  Bolton,  37  ///.  App. 
143.  Wayt  V,  Burlington,  C.  /'.  &*  M,  R. 
Co.,  45  Iowa  217.  Vautrain  v.  St.  Louis,  I. 
M.  &*  S.  R.  Co. ,  78  Afo.  44 ;  affirming  on 
other  grounds  8  Mo.  App.  538. 

Where  the  action  is  based  on  negligence, 
and  the  evidence  is  conflicting,  the  court 
will  not  set  aside  a  verdict  even  where  it 
would  have  been  satisfied  if  the  verdict  had 
been  for  the  other  party.  Hardy  v.  AHn^ 
neapolis  &^  St.  L.  R.  Co.,  36  Fed.  Rep.  657. 
Leopold  V.  Delaware  &^  H.  Canal  Co.,  49  A'^ 
Y.  S.  R.  459,  66  Hun  628,  21  A^.  F.  Supp. 
100. 

Where  conflicting  evidence  on  the  ques- 
tions of  the  negligence  of  a  railroad  com- 
pany in  operating  its  trains  on  the  one  part, 
and  of  contributory  negligence  and  want  of 
ordinary  care  on  the  part  of  the  person  who 
is  injured,  is  submitted  to  a  jury,  their  ver- 
dict and  findings  thereon  are  conclusive. 
Interstate  C.  R.  T.  R.  Co.  v.  Fox,  39  Am. 
&^  Eng.  R.  Cas.  318,  41  Kan.  715,  21  Fac. 
Rep.  797.  Murray  v.  Washington  6f*  G.  R. 
Co.,  2  MacArth.  {D.  C.)  195. 

Where  suit  is  brought  against  a  railroad 
company  for  damages  done  to  certain  ma- 
chinery, and  the  evidence  as  to  the  amount 
of  the  damage  is  conflicting,  that  on  behalf 
of  plaintiff  sustaining  the  finding  of  the  jury, 
there  is  no  error  in  refusing  to  grant  a  new 
trial  on  the  ground  that  the  verdict  was 


NEW   TRIAL,  25,  26. 


94g 


ir  negli- 
ig.and 
;e,  the 
'.  New 
.  S.  Ji. 


contrary  to  law  and  without  evidence  to 
jupport  it.  If'csfern  &^  A.  A'.  Co.  v.  Ma- 
//t/s,  77  Oil.  488.  2  S.  E.  Rep.  692. 

A  conflict  of  evidence  should  not  restrain 
trial  courts  from  granting  a  new  trial  when- 
ever they  believe  substantial  justice  has  not 
been  done  between  the  parties.  Dewey  v. 
Chicago  &^  N.  H''.  K.  Co.,  31  Iowa  373,  2  Am. 
Ry.  Rep.  369.— Followed  in  Stutsman  v. 
Burlington  &  S.  W.  R.  Co..  53  Iowa  760. 
Quoted  in  Johnson  v.  Chicagj,  R.  I.  & 
P.  R.  Co.,  8  Am.  &  Eng.  R.  Cas.  206.  58 
Iowa  348. 

The  general  rule  is,  the  jury  arc  the  judges 
of  the  credibility  of  the  witnesses,  but  where 
they  capriciously  disregard  tlie  testimony  of 
five  un impeached  witnesses,  and  rely  solely 
upon  the  testimony  of  two  little  boys,  aged 
seven  and  eleven  years,  simply  because  they 
desire  to  find  a  verdict  in  accordance  with 
their  testimony,  a  new  trial  should  be 
granted.  Chicago,  B.  &^  Q.  R.  Co.  v.  Stumps, 
69  ///.  409.— Following  Chicago,  B.  &  y. 
R.  Co.  V.  Stumps,  55  111.  367. 

Under  the  amendment  to  the  federal  con- 
stitution that  "  no  fjict  tried  by  a  jury  shall 
be  re-examined  otherwise  than  according  to 
the  rules  of  the  common  law,"  a  verdict  for 
defendant,  a  street-railway  company,  will 
not  be  set  aside  where  the  evidence  as  to 
defendant's  negligence  is  conflicting.  Stc~iv- 
art  V.  Sixth  Ave.  R.  Co. ,  45  Fed.  Rep.  21. 

If  physicians  disagree  as  to  the  nature 
of  the  injuries  sustained  by  plaiiuiti,  this 
will  not  be  sufficient  to  set  aside  the  ver- 
dict on  the  ground  that  the  evidence  does 
not  show  that  lie  suffered  any  physical  in- 
jury, when  they  all  agree  as  to  his  physical 
suffering.  Texas  6«»  St.  L.  R.  Co.  v.  Suggs, 
21  Am.  &*  Eng.  R.  Cas.  475,  62  Tex.  323. 

In  an  action  against  a  railroad  by  a  pas- 
senger for  being  rudely  treated  and  thrown 
from  the  train  by  the  conductor  and  other 
employes  of  the  company,  a  motion  for  a 
new  trial  on  the  ground  that  the  verdict  is 
contrary  to  the  evidence  sliould  not  be 
granted  where  there  is  a  conflict  of  evi- 
dence ;  neither  should  a  new  trial  be  granted 
or,  die  ground  of  newly  discovered  evidence 
where  the  affidavits  show  that  the  new  evi- 
dence is  only  cumulative.  East  Line  <3-»  R. 
R.  A'.  Co.  V.  Boon.  (Tex.)  i  S.   IV.  Rep.  632. 

Where  the  evidence  is  contradictory  as  to 
whether  coupling  apparatus  was  unusually 
dangerous,  and  as  to  the  knowledge  by 
plaintiff  of  the  defect,  and  there  being  tes- 
timony if  believed  to  sustain  a  recovery  by 
6  D.  R.  D.  —54' 


plaintiff,  the  verdict  will  not  be  set  aside  as 
without  or  in  conflict  with  the  testimony. 
Bonner  v.  Bean,  80  Tex.  152,  15  S.  IV.  Rep. 
798. 

In  a  suit  to  recover  for  an  injury  to  a 
child  there  was  ample  evidence  to  support 
a  finding  of  the  master  that  the  train  was 
moving  at  an  excessive  rate  of  speed,  and 
that  the  trainmen  failed  to  keep  such  look- 
out as  the  ordinances  of  the  city  required  at 
the  place.  Held,  that  the  court  will  noi  set 
it  aside  on  the  ground  of  conflicting  testi- 
mony. Central  Trust  Co.  v.  Wabash,  St. 
L.  Sr-  P.  R.  Co..  31  Fed.  Rep.  246. 

25.  Eft'ect  of  anibiKiiity  or  iiiiccr- 
taiiity  in  verdict.— Where  the  action  is 
against  a  carrier  for  goods  lost,  and  there  is 
no  evidence  of  negligence,  and  the  jury  fails 
to  find  whether  the  loss  occurred  before  or 
after  the  goods  reached  the  company's  ware- 
house, a  verdict  for  plaintiff  should  be  set 
aside  and  a  new  trial  granted.  Jackson  v. 
Sacramento  Valley  R.  Co.,  23  Cal.  269. 

The  rule  absolving  companies  from  lia- 
bility for  injury  to  animals  coming  on  the 
track  through  gates  in  fences  is  applicable 
only  to  gates  erected  at  farm  crossings;  and 
where  the  verdict  is  ambiguous  and  uncer- 
tain as  to  whether  there  was  a  farm  cross- 
ing for  the  convenience  of  the  adjacent 
farm  owner  at  the  place  where  the  gate  was 
erected,  a  motion  for  a  venire  de  novo  should 
be  sustained.  Louisville,  N.  A.  &^  C.  R, 
Co.  V.  Thomas,  i  /nd.  A  pp.  131,  27  jV.  E. 
Rep.  302. 

20.  Errors  in  special  findings.— 
Where  the  special  questions  submitted  to  the 
jury  are  evasively  and  unfairly  answered, 
and  some  of  the  findings  mad"  thereon  are 
unsupported  by  the  testimony,  it  is  the  duty 
of  the  trial  court,  upon  application,  to  grant 
a  new  trial.  St.  Louis  &•  S.  F.  R.  Co.  v. 
Clark,  55  Am.  &•  Eng.  R.  Cas.  367,48  Kan. 
321,  29  Pac.  Rep.  312. 

Where  the  findings  on  the  issues  are  con- 
tradictory, a  new  trial  wUl  be  granted.  So 
where  in  response  to  one  issue  the  jury 
found  that  there  was  no  contributory  negli- 
gence, but  in  response  to  another  they 
found  that  the  plaintiff's  intestate  knew  of 
the  reckless  character  of  his  fellow-servant 
by  whose  negligence  the  injury  occurred,  a 
new  trial  should  be  granted.  (Smith,  C.J., 
dissenting.)  Porter  v.  Western  N.  C.  R. 
Co.,  97  N.  Car.  66,  2  Am.  St.  Rep,  272,  2  S, 
E.  Rep.  580. 

Where  the  special  findings  of  fact  of  a 


1 


F 


350 


NEW   TRIAL,  27,  23. 


i^i 


jury  in  eminent  domain  pn-ceedings  repeat 
the  sttnie  element  of  damages  severiil  times, 
the  verdict  should  l)e  set  aside  and  a  new 
trial  granted.  Ellsworth,  }[.  P.,  N.  &•  S. 
E.  R.  Co,  V.  Ma.x^ucll,  39  Kan.  651,  iS  l\\c. 
Rep.  819.  — For.i.owiNG  Minneapolis  Har- 
vester Works  Co.  V.  Cuminings,  26  Kan.  367. 

Where  the  general  verdict  is  perfect  and 
complete  in  every  particular,  a  venire  tie 
novo  ought  not  to  be  granted  merely  be- 
cause the  answers  of  the  jury  to  interrtjga- 
tories  submitted  to  them  are  "  irregular,  in- 
definite, improper,  and  uncertain."  Pilts- 
Imr^^h,  C.  iSx  St.  L.  R.  Co.  v.  Hixon,  32  Am. 
&>  Eng.  R.  Cas.  374,  110  /«</.  225,  11  N.  E. 
Rep.  285. 

The  fact  that  a  special  verdict  contains  no 
finding  upon  particular  matters  of  fact  in 
issue  is  not  sufficient  ground  for  a  venire  tie 
novo.  To  require  a  venire  de  novo  the  ver- 
dict must  be  so  defective  that  a  judgment 
cannot  be  rendered  on  it.  Evansi'ille  &*  T. 
H.  R.  Co.  v.  Tuft,  2  Ind.  App.  237,  28  N. 
E.  Rep.  443. 

In  exa'mininga  specinl  verdict  under  a  mo- 
tion for  a  venire  de  novo,  mere  conclusions 
of  law,  mere  evidence  and  findings  outside 
the  issues  will  be  disregarded  ;  and  if,  when 
stripped  of  such  improper  matters,  the  ver- 
dict is  sufficient  to  sustain  a  judgment  for 
either  party,  a  venire  de  novo  will  not  be 
granted.  Evansville  *S»  T.  H.  R.  Co.  v. 
Taft,  2  Ind.  App.  lyj,  28  A^.  E.  Rep.  443. 

In  an  action  for  the  killing  of  cattle  at  a 
crossing,  the  engineer  testified  that  as  soon 
as  he  saw  the  cattle  on  the  track  he  put  on  the 
air  brakes  and  reversed  the  engine,  stopping 
the  train  within  300  yards,  which,  he  testi- 
fied, was  the  quickest  a  train  of  the  kind 
going  at  the  rate  of  speed  at  which  his  train 
was  going  could  be  stopped.  The  jury 
found  for  the  plaintiff, and  as  a  special  find- 
ing of  fact  that  the  train  could  have  been 
stopped  within  350  or  375  feet.  There  was 
no  evidence  to  support  this  finding.  Held, 
that  the  jury  had  no  right  so  to  find  and 
that  a  new  trial  would  be  ordered.  Union 
Pac,  R.  Co.  V.  Shannon,  19  Am.  <&*  Eng.  R. 
Cas.  500,  33  Kan.  446,  6  Pac.  Rep.  564. 

In  an  action  for  an  injury  occasioned  by 
negligence  a  special  verdict,  after  reciting 
facts,  stated  that  the  plaintiiT  was  not  guilty 
of  contributory  negligence,  and  that  the  in- 
jury was  the  result  of  negligence  on  the  part 
of  the  defendant.  Held,  that  such  findings 
as  to  negligence  were  conclusions  of  law, 
which  the  jury  could  not  make,  and  that 


they  must  be  disregarded  on  a  motion  for  a 
venit  L  de  novo  assigning  them  as  the  ground 
thereof.  Indianapolis,  P.  &*  C.  R.  Co,  v. 
Bush,  loi  Ind.  582. 

PlaintifT,  a  passenger,  alighted  at  a  station, 
and,  the  train  having  started  before  he  had 
re-entered  it,  endeavored  to  jump  on  while 
it  was  in  motion,  and  in  doing  so  was  in- 
jured. There  was  evidence  of  an  invitation 
by  the  conductor  to  jump  on  while  it  was  in 
motion,  and  the  jury  found  that  there  was 
such  invitation  ;  that  plaintiff  used  a  rea- 
sonable degree  of  care  in  endeavoring  to  get 
on,  and  that  he  was  injured  while  trying  to 
get  on  in  pursuance  of  the  request  of  the 
conductor.  It  was  argued  by  defendants 
that  the  danger  to  plaintiff  was  so  patent 
and  obvious  that  he  had  no  right  to  act  on 
the  conductor's  invitation  or  to  attempt  to 
get  on.  Held,  that  this  was  a  matter  which 
should  have  been  submitted  to  the  jury; 
that  the  questions  involved  in  the  action 
could  not  be  determined  upon  the  findings, 
and  that  there  should  be  a  new  trial.  Curry 
V.  Canadian  Pac.  R.  Co.,  17  Ont.  65. 

27.  Iiicoiisistciicy  between  spccinl 
fludiu;;!*  and  general  verdict.— A  gen- 
eral verdict  wliich  is  clearly  inconsistent 
and  in  conflict  with  a  special  finding  of  fact 
submitted  to  the  jury  in  the  same  case 
should  be  set  aside  on  motion.  Omaha  &* 
R.  V.  R.  Co.  V.  Hall,  33  Neb.  229,  50  N.  IV, 
Rep.  10. 

In  an  action  for  an  injury  received  by 
collision  with  a  train  while  crossing  a  rail- 
road track,  the  evidence  of  defendant's  neg- 
ligence being  weak,  and  the  special  findings 
bearing  upon  the  question  of  plaintiff's  neg- 
ligence being  inconsistent,  the  refusal  of 
the  circuit  court  to  grant  a  new  trial  is  er- 
roneous. Burns  v.  North  Chicago  Rolling 
Mill  Co.,  19  Am.  &*  Eng.  R.  Cas.  iii,\2,  60 
Wis.  541,  19  A^.  W.  Rep.  380. 

4.  Excessive  Damages, 

a.  In  General. 

2i$.  When  the  verdict  should  be 
set  aside.*— A  failure  to  estimate  damages 
by  any  correct  legal  principle  is  good  ground 


*  Excessive  damages  in  actions  for  personal  in- 
juries not  resulting  in  death.  Various  illustra- 
tions of  what  are  and  what  are  not  excessive 
damages,  see  notes,  46  Am.  &  Eng.  R.  Cas. 
667  ;  44  Id.  440  :  2  Am.  St.  Rep.  40  ;  14  L.  R. 
A.  677.  See  also  41  Am.  &  Eng.  R.  Cas.  368, 
abs.r. 


NEW   TRIAL,  20. 


861 


for  setting  aside  the  verdict.  Elhiuorth  v. 
Central  R.  Co.,  34  N.  J.  L.  93.— Distin- 
guished IN  St.  Louis  &  S.  E.  R.  Co.  v.  Myr- 
tle, 51  Ind.  566. 

Wliere  a  verdict  appears  to  be  palpably 
and  manifestly  excessive,  it  is  tlie  duty  of 
the  court  to  set  it  aside  and  send  the  case  to 
another  jury;  and  on  it  being  made  to  ap- 
pear, on  appeal,  that  the  court  below  erred 
in  refusing  to  do  so,  the  case  will  be  re- 
versed and  remanded.  /louston  &■*  G.  N. 
A\  Ce.  V.  Randall,  50  Tex.  254.— Followed 
IN  Houston  &  T.  C.  R.  Co.  ik  Pinto,  15  Am. 
&  Eng.  R.  Cas.  286,  60  Tex.  516;  Saldana  v. 
Galveston,  H.  &  S.  A.  R.  Co.,  43  Fed.  Rep. 
862. 

When  the  damages  found  by  the  jury  are 
either  so  large  or  so  small  as  to  force  upon 
the  mind  of  every  man  familiar  with  tiie 
circumstances  of  the  case  the  conviction 
that,  by  some  means,  the  jury  have  acted 
under  the  influence  of  a  perverted  judgment, 
it  is  the  duty  of  the  court,  in  the  exercise  of 
.a  sound  judicial  discretion,  to  grant  a  new 
trial.  Clapp  v.  Hudson  River  R.  Co.,  19 
Barb.  (M.  Y.)  461.  Mobile  &•  M.  R.  Co.  v. 
Ashcraft,  48  Ala.  15. 

Courts  will  not  always  set  aside  verdicts  in 
damage  suits  where  they  areeitiier  larger  or 
smaller  than  they  ought  to  be,  but  in  a  per- 
sonal injury  action  where  the  verdict  is  ab- 
normally large,  and  it  appears  that  this  may 
have  been  brought  about  by  improper  re- 
marks of  counsel,  the  verdict  will  be  set 
aside.  C,  T.  &>  N.  IV.  R.  Co.  v.  Hancock,  2 
Tex.  Unrep.  Cas.  301. 

Wliere  the  case  is  one  for  only  compensa- 
tory damages,  the  rule  which  restrains  courts 
from  setting  aside  verdicts  for  e^jcessive 
damages  is  not  so  rigid  as  in  cases  calling 
for  punitive  or  exemplary  damages.  Florida 
R.  &>  N.  Co.  V.  Webster,  25  Fla.  394,  5  So. 
Rep.  714.— Followed  in  Florida  Southern 
R.  Co.v.  Hirst,  30  Fla.  i. 

Where,  according  to  the  weight  of  evi- 
dence, there  is  grave  doubt  whether  plain- 
tiff ought  to  recover  anything,  the  court  be- 
low is  warranted  in  granting  a  new  trial, 
even  a  second  new  trial,  if  the  damages  found 
are  extreme  or  excessive.  Smith  v.  Savan- 
nah, F.  &*  W.  R.  Co.,  42  Am.  <^  Eng.  Ji. 
Cas.  105,  84  Ga.  698,  11  S.  E.  Rep.  455. 

When  the  injury  is  the  result  of  unavoid- 
able accident,  not  of  wilful  negligence  or 
gross  carelessness,  damages  will  be  regarded 
excessive  wliere  awarded  to  the  full  extent 
allowed  by  law  where  death  ensues,  where 


the  evidence  shows  that  the  loss  of  a  foot,  as 
in  this  case,  would  not  necessarily  shorten 
life  n(jr  wholly  incapacitate  one  for  business. 
Kennon  v.  Gilmer,  5  Mont.  257,  5  Pac.  Rep. 
847.— Quoting  Union  Pac.  R.  Co.  v.  Hand, 
7  Kan.  393. 

Wherever  it  is  apparent  that  juries,  either 
from  passion  or  prejudice  against  incorpo- 
rate companies, have  rendered  verdicts  which 
are  grossly  excessive,  the  appellate  court  will 
not  hesitate  to  set  them  aside  and  grant  a 
new  trial.  The  legal  and  equitable  rights  of 
incorporate  companies  are  to  be  measured 
by  the  same  standard  in  the  rendition  of 
the  verdicts  of  juries  as  those  of  natural 
persons.  Greene  v.  Southern  Exp.  Co.,  41 
Ga.  515. 

In  a  case  where  intrinsic  circumstances 
may  properly  be  introduced  to  aid  in  the 
construction  of  a  deed,  a  new  trial  should  be 
granted  when  it  appears  such  circumstances 
were  not  fully  before  the  court  and  jury,  and 
the  damages  awarded  by  the  jury  were  ex- 
cessive.     Morris  &*  E.  R.  Co.  v,  Bonnell,  34 

A'.y.  Z.474- 

Though  a  personal  injury  be  very  serious, 
such  as  will  shorten  life,  still  a  verdict  for 
double  the  amount  of  damages  which  could 
be  awarded  if  death  had  ensued  will  gener- 
ally be  deemed  excessive  and  set  aside. 
Collins  V.  Albany  <S-  S.  R.  Co.,  12  Barb.  (N. 
Y.)  492.— Reviewed  in  Belknap  v.  Boston 
&  M.  R.  Co.,  49  N.  H.  358 ;  Murray  v.  Hud- 
son River  R.  Co.,  47  Barb.  196. 

29.  Wlieii  it  slioiiltl  not  be.— A  ver- 
dict in  damages  will  not  be  set  aside  as  ex- 
cessive where  there  is  nothing  before  the 
court  to  show  in  what  respect  it  is  so. 
Washiiigton  Fifth  Baptist  Church  v.  Balti- 
more iS«  P.  R.  Co.,  5  Mac  key  {D.  C.)  269. 

Unless  at  first  blush  the  damages  seem 
excessive,  the  court  should  not  disturb  the 
verdict.  Indianapolis  <&>•  V.  R.  Co.  v.  Mc- 
Lin,  8  Am.  &*  Eng.  R.  Cas.  237,  82  Ind.  435. 
Ohio  &*  M.  R.  Co.  V.  /udy,  1 20  Ind.  397,  22 
N.  E.  Rep.  252. 

A  new  trial  will  not  be  granted  because 
the  .  'idence  is  conflicting  and  the  damages 
are  apparently  extreme  where  the  verdict  is 
not  so  excessive  as  to  warrant  the  court  in 
setting  it  aside.  So  held,  where  plaintiff  re- 
covered a  large  verdict  for  injuries  received 
while  driving  in  a  large  city,  by  being  run 
into  by  a  dummy  engine  negligently  oper- 
ated by  the  men  in  chargei  Metropolitan 
St.  R.  Co.  V.  Pffwelt,  89  Ga.  601.  16  S.  E. 
Rep.wZ. 


I 


'  r 


1 

j 

1 

1 

i 

1 

1 

1 

1 

i 

852 


NEW   TRIAL,  30. 


Where  the  action  is  for  personal  injuries, 
and  the  plaintiff  has  twice  obtained  a  ver- 
dict, and  the  trial  court  after  hearinj^  tlic 
evidence  has  permitted  the  second  verdict 
to  stand,  the  appellate  court  will  not  inter- 
fere upon  tlie  ground  that  the  damages  are 
excessive.  Peoria,  D.  &*  E.  A'.  Co.  v.  A'/cr, 
46  ///.  A/>p.  60. 

Where  the  verdict  of  a  jury  establishes  the 
fact  that  the  deceased,  at  the  time  of  the 
accident,  was  deceived  and  misled  by  the 
negligence  of  a  railroad  company  in  leaving 
its  gates  open  at  a  time  when  they  sliould 
have  been  closed,  the  court  refused  to  set 
aside  tlie  verdict.  Hooper  v.  Boston  &*  M, 
A'.  Co.,  9,1  Me.  260,  17  Atl.  Rep.  64. 

A  verdict  considerably  lower  than  the 
outside  range  of  the  testimony  would  war- 
rant is  not  excessive.  lialch  v.  Grand  Rapids 
Gr-  I.  R.  Co.,  78  Mic/i.  654.  44  A,  W.  Rep. 
151.  .SV.  Louis,  A.  &^  T.  R,  Co.  v.  Turner, 
I   Tex.  Civ.  App.  625.  20  5.   W.  Rep.  1008. 

Where  the  question  is  a  mere  matter  of 
damages,  and  different  minds  might,  and 
probably  would,  arrive  at  different  results, 
and  nothing  inconsistent  with  an  honest 
exercise  of  judgment  appears,  the  court 
should  not  disturb  the  verdict.  Memphis  &^ 
C.  R.  Co.  v.  Whitfield,  44  Miss.  466. 

In  actions  for  personal  injuries  damages 
are  not  to  be  weighed  in  a  very  delicate 
scale ;  and  it  is  not  enough  to  warrant  the 
court  in  granting  a  new  trial  that  it  would 
l.'ave  preferred  a  diflerent  admeasurement  of 
damages.  Collins  v.  Albany  &•  S.  R.  Co.,  12 
£ar6.  (JV.   v.)  492. 

Courts  are  more  reluctant  to  grant  new 
trials  for  excessive  damages  in  actions  for 
personal  injury  than  in  any  other  class  of 
cases.  Quinn  v.  South  Carolina  R.  Co.,  yj 
Am.  &*  Eng.  R.  Cas.  166,  29  So.  Car,  381,  7 
5.  E.  Rep.  614,  I  L.  R.  A.  682. 

A  new  trial  will  not  be  granted  after  ver- 
dict because  the  amount  of  damages  as- 
sessed by  the  verdict  exceeds  the  amount 
claimed  in  the  writ,  but  not  the  amount  laid 
in  the  declaration.  Roderick  v.  Baltimore 
&•  O.  R.  Co.,  7  W.  Va.  54. 

80.  Bias,  prejudice,  or  mistake  on 
part  of  iury  iiiiist  appear.— A  court 
cannot  interfere  with  a  verdict  on  the 
ground  of  excessive  damages  unless  such 
damages  are  so  excessively  large  and  dis- 
proportionate as  to  warrant  the  inference 
that  the  jury  were  swayed  by  prejudice,  pref- 
erence, partiality,  passion,  or  corruption. 
Shumacher  v.  St.  Louis  &*  S,  F.  R.  Co.,  39 


I'td.  Rep.  174,  17  IViisli.  L.  A'lp.  550.  Dwyer 
V.  .sy.  Louis  &^  S.  I'.  R.  Co.,  52  Led.  Rep.  87. 
Wheaton  v.  North  Reach  &^  M.  R.  Co.,  36 
Cal.  590.  Macon  &*  \V.  R.  Co.  v.  ll'inn,  26 
6'a.  250.  Chicago  >S~»  A.  R.  Co.  v.  Pondrom, 
51  ///.  333.  Chicago,  R.  LUr'P.  R.  Co.  v. 
Otto,  52  ///.  416.  Ohio  <Sr-  M.  R.  Co.  v.  Col- 
lam,  5  /l>n.  ^S^»  Eng,  R.  Cas.  ',54,  73  /nd. 
,261.  38  /hn.  Rep.  134.  L.ouisville,  A".  ./.  is^ 
C.  R.  Co.  V.  Wood,  1 1 3  /nd.  544,  1 2  //  'est. 
Rep.  314,  14  A'.  E.  Rep.  572,  16  N.  E.  Rep. 
197.  Missouri,  M.  <S^•  T.  R.  Co.  v.  Weaver, 
16  Kan.  456.  Louisville  &^  A'.  A'.  Co.  v.  Fo.v, 
II  Rush  (A/.)  495,  14  Am.  Ry,  Rep.  374. — 
Quoting  Louisville  &  N.  R.  Co.  v.  Sickings, 

5  liush  1 ;  Fair  v.  London  &  N.  W.  R.Co., 
21  L.  T.  326.  RiiViEWiNG  Louisville  &  P. 
R.  Co. 7/.  Smith,  2  Duv.  (Ky.)  556  ;  Louisville 

6  N.  R.  Co.  V.  Collins,  2  Duv.  114;  Louisville 
&  N.  R.  Co.  V.  Robinson,  4  Bush  508;  Shaw 
V.  Boston  &  W.  R,  Co.,  8  Gray  (Mass.)  45. 
■—Louisville  &•  N.  R.  Co.  v.  Mitchell,  S;  Ky. 
327,  8  S.  W.  Rep.  706.  Du  Laurans  v.  St, 
Paul  &*  P.  R.  Co.,  15  Minn.  49  (OV/.  29). 
Mississippi  C.  R.  Co.  v.  Carutli,  51  Miss.  77, 
Kennedy  v.  North  Mo.  R.  Co.,  36  Mo  351. 
Graham  v.  Pacific  R.  Co.,  66  Mo.  536,— Fol- 
lowing Kennedy  v.  North  Mo.  R.  Co.,  36 
Mo.  III.— Parsons  w.  Missouri  Pac.  R.  Co., 
94  Mo.  286,  12  West.  Rep.  618,  6  5.  W.  Rep. 
464.  Tennessee  C.  6-  R.  Co.  v,  Roddy,  31 
Am.  Sf'  Eng.  R.  Cas.  340,  85  Tenn.  400,  5  i\ 

W.  Rep.  286.— Criticising  Nashville,  C.  & 
St.  L.  R.  Co.  7'.  Foster,  10  Lea  (Tenn.)  366. 

Or  so  large  as  to  justify  the  inference  of 
gross  mistake.  Central R.  iSr'B.  Co.  v.  Roach, 
70  Ga.  434.  Whipple  v.  West  Phila.  Pass. 
R.  Co.,  II  Phila.  (Pa.)  345.— Reviewing 
Caldwell  r.  Catawissa  R.  Co.,  8  Phila.  30, 
Williams  r/.  Philadelphia,  8  Phila.  30;  Penn- 
sylvania R.  Co.  V.  Allen,  53  Pa.  St.  276. — 
Texas  (S-  P.  A'.  Co.  v.  Johnson,  2  Tex.  App. 
{Civ.  Cas.)  154. 

Or  a  clear  misapprehension  by  tfie  jury  of 
their  duty  and  the  facts  of  the  case.  Terre 
Haute,  A.  &>  St.  L.  R.  Co.  v.  Vanatta,  21  ///. 
188. 

When  the  damages  found  by  a  jury  are 
either  so  large  or  so  small  as  to  force  the 
conviction  that  by  some  means  the  jury 
have  acted  under  the  influence  of  a  pervert- 
ed judgment,  it  is  the  duty  of  the  court, 
in  the  exercise  of  a  sound  discretion,  to 
grant  a  new  trial.  Clapp  v.  Hudson  River 
K.  Co.,  i<)  Barb.  (N.  K)  461.— Following 
Collins  V.  Albany  &  S  R.  Co.,  12  Barb  492. 
—Reviewed  in  Bell«iap  v.  Boston  &  M. 


NEW  TRIAL,  31-34. 


868 


R.  Co.,  49  N.  II.  358  ;  Murray  7>.  Hudson 
River  R.  Co.,  47  Barb,  n/),— Missouri,  A'. 
&'  T.  A'.  Co.  V.  U'lixver,  16  A'an.  456. 
Louisville  Soul/urn  A'.  Co.  v.  Afiiio^ui;  90 
A>.  369,  14  S.  IV.  Ai'P.  357.  Matthews 
V.  Missouri  Pac.  R.  Co.,  26  Mo.  App.  75. 
Wills  V.  Cape  Girardeau  S.  IV.  A'.  Co.,  44 
Mo.  App.  51.  lielknap  v.  Host  on  &*  M.  A\ 
6V.,  49  A'.  //.  358.  — E.\i'i,AiNl.N(;  niack  v. 
Carrollton  R.  Co.,  10  La.  Ann.  33.  Rk- 
viF.wiNd  Collins  7'.  Albany  &  S.  R.  Co.,  12 
Barb.  492;  Clapp  ?'.  Hudson  River  R.  Co., 
19  Barb.  461. — Cot  Hits  v.  Albany^  S.  A\  Co., 
\i  Harb.  (N.  )'.)  492.— Foi.i.owKD  in  Clapp 
V.  Hudp  ^n  Kiver  R.  Co.,  19  Barb.  461. 

While  the  case  of  a  railroad  train  running 
ri  ;;ardlcss  of  law  demands  at  the  hands  of 
the  jury  something  more  in  the  way  of 
damages  than  a  mere  individual,  and  this 
for  the  protection  of  the  public,  yet  the 
verdict  should  not  be  so  excessive  as  to 
show  a  vengeful  feeling  towards  the  defend- 
ant or  favor  towards  the  plaintiff.  Chicago 
<S-  K.  I.  R.  Co.  V.  McA'ean,  40  ///.   218. 

Where  some  of  the  material  findings  of 
the  jury  are  against  the  evidence,  and  oth- 
ers are  unsatisfactory,  and  it  appears  there- 
by that  the  findings  have  been  given  under 
the  influence  of  passion  or  prejudice,  or  at 
least  that  the  jury  have  not  intelligently  or 
fairly  considered  the  evidence,  a  new  trial 
must  l)e  granted.  Southern  Kan.  R.  'o.  v. 
Michaels,  49  A'an,  388,  30  /'ac.  Rep.  408. 

When  a  verdict  is  rendered  for  $200  ac- 
tual damages  and  §10,000  exemplary  dam- 
ages, the  'lisproportion  is  so  great  as  to 
manifest  that  character  of  passion,  preju- 
dice, or  partiality  in  the  jury  which  requires 
a  reversal.  Internauoital  &^  G.  JV.  R.  Co. 
V.  Telephone  &^  T.  Co.,  69  Tex.  277,  5  S. 
W.  Rep.  517.— Quoting  Railroad  Co.  v. 
Nichols,  Tex.  (1882). 

31.  Ett'ect  of  approval  of  verdict 
by  trial  judfjc— Where  there  is  nothing 
involved  but  a  question  of  fact,  and  the  evi- 
dence justifies  the  verdict  rendered,  and 
the  trial  court  has  refused  to  set  it  aside, 
the  supreme  court  will  not  interfere  on  the 
ground  that  the  damages  are  excessive. 
Illinois  C.  R.  Co.  v.  Hays,  19  ///.  166.  See 
also  Richmond  &»  D.  R,  Co.  v.  Williams, 
88  Ga.  16,  14  S.  ,E.  Rep.  120.  Dugan  v. 
Chicago,  St.  P.,  M.  &-  O.  A'.  Co.,  85  Wis. 
609,  55  A'.  W.  Rep.  894. 

32.  Permanent  Injuries.— The  court 
does  not  err  in  refusing  to  set  aside  a  ver- 
dict as  excessive  w  hcrj  the  evidence  tends 


to  show  that  the  injury  is  serious,  and  it  \t 
uncertain  when,  if  at  all,  the  plaintilT  will 
fully  recover.  Brusch  v.  St,  Paul  City  R. 
Co.,  52  Minn.  512,  55  A'.  W.  Rep.  57.  — Koi,- 
l.owiNO  Johnson  v.  Northern  Pac.  R.  Co. 
47  Minn.  430,  50  N.  W.  Rep.  473. 

:i3.  Injury  to  plaintitf'M  wife.- In 
an  action  l)y  a  husband  to  recover  ff)r  inju- 
ries to  his  wife,  the  eviflence  showed  that 
siie  did  the  Iujh:  rwork  before  the  injury  for 
her  liiKband  and  ilirec  children,  assisted  in 
a  store,  and  sometimes  eanu'd  by  sewing  as 
niucli  as  '";:o  a  wrek.  J/el  f.  that  'i  verdict 
for  8250^  iliould  not  bo  ^ct  aside  as  exces- 
sive. Cregin  v.  Hrooklyn  Cross-Tmon  R. 
Co.,  i8//nn(.V.  1.)  368.— yuoTiNO  Sloan 
r.  New  York  C.  &  H.  R.  R.~Co.,  i  Hun  543. 

Where  plaintifT's  wife  was  thrown  down 
upon  leaving  a  car,  fracturing  her  shoulder 
so  as  to  become  permanei.''y  disabled,  a 
verdict  in  favor  of  the  husband  for  [jccun- 
iary  loss  of  S3000  is  not  excessive  Al/tn 
v.  Manhattan  R.  Co.,  42  A^.  Y.  S,  R.  227, 17 
A'.  )'.  Supp.  187. 

A  verdict  for  $5000  is  not  excessive  in  an 
action  for  personal  injuries  to  plaintiff's 
wife  which  produced  a  miscarriage,  caused 
her  great  pain,  and  resulted  in  perma- 
nent disorders  of  her  spine  and  womb,  ren- 
dering her  an  invalid.  Missouri  Pac.  R.  Co. 
V.  White,  48  Atn.  i&-  Kng.  R.  Cas.  206,  80 
Tex.  202,  I  s  .S".  If'.  Rep.  808. 

Where  it  appears  that  the  husband  ex- 
pended over  SSoo  in  the  necessary  treat- 
ment and  care  oi  his  wife  to  the  time  of  the 
trial,  and  since  the  injury  she  has  been 
wholly  disabled  from  doing  any  household 
duty,  or  from  being  of  any  aid  or  assistance 
to  the  husband,  a  verdict  for  S5000  will  not 
be  interfered  with  in  the  supreme  court  as 
excessive.  Furnish  v.  Missouri  Pac.  R. 
Co.,  \o^  Mo.  669,  15  S.   W.  Rep.  315. 

34.  Injury  to  cliild.*— A  verdict  in 
favor  of  a  widowed  mother  for  $1027  for 
loss  of  service  of  her  minor  son  for  more 
than  nineteen  months  will  not  be  set  aside 
as  excessive  where  the  evidence  showed 
that  he  lived  with  his  mother,  who  received 
his  wages,  and  that  lie  was  earning  at  the 
time  $60  a  month.  Mauerman  v.  St.  Louis. 
I.  M.  &^  S.  R.  Co.,  41  Afo.  App.  348. 

A  boy  eleven  years  old  was  so  injured  as 
to  necessitate  the  amputation  of  his  foot 
and  a  portion  of  his  leg.     Held,   that  the 


*.See   also  Ciiii.ouEN,    I.NjinuES    to,   192, 
193. 


■■•■iH 


854 


NEW  TRIAL,  35,  36. 


''}}■ 


■•_  it- 
'-i  ■-.'■' 


*1? 


!•  •  .* 


jury  might  consider  not  only  the  loss  of  ser- 
vice, but  the  increased  care  and  expense  of 
bringing  up  the  crippled  child,  and  a  ver- 
dict in  favor  of  the  father  for  $1500  was  not 
excessive.  Lan^  v.  Nejt/  York,  L.  E.  &»  W. 
R.  Co.,  51  Hun  603,  22  A'.  Y.  S.  A\  no,  4 
TV.  Y.  Supp.  565;  affirmed  in  123  A^.  Y. 
656,  mem.,  33  A\  Y.  S.  A\  1030. 

Where  a  mother  is  entitled  to  recover  for 
injuries  to  her  minor  child,  a  verdict  for 
S5000  will  not  be  disturbed  as  excessive 
where  the  jury  is  authorized  to  consider 
both  the  loss  of  service  and  the  extra  care 
and  expense  that  the  mother  has  been  put 
to,  though  the  child  has  already  recovered 
$10,000  in  its  own  right.  Cummin^  v.  Brook- 
lyn  City  A\  Co..  24  .V.  Y.  S.  A\  718,  52  Hun 
613,  I  Sih>.  Sup.  Ct.  327,  5  N.  Y.  Supp.  476. 

A  widowed  mother  who  was  poor  sued  for 
the  killing  of  heronly  son,  five  years  old,  who 
was  smart,  healthy,  intelligent,  large  of  his 
age,  and  obedient.  The  physician's  bill  and 
funeral  expenses  amounted  to  $290.  On 
the  first  trial  the  jury  returned  a  verdict  of 
§4500.  On  the  second  trial  they  returned  a 
verdict  for  $3500,  of  which  S1235  was  re- 
mitted. Held,  that  the  court  would  not 
grant  another  trial  on  the  ground  that  the 
damages  were  excessive.  Little  Rack  <S>»  Ft. 
S.  R.  Co.  V.  Barker,  19  Am.  (S^  Eng.  R.  Cas. 
195.  39  ^^^-  49>.— Followed  in  Gaither 
V.  Kansas  City,  etc.,  R.  Co.,  27  Fed.  Rep. 

544- 
So.  Injuries  to  pas.seiigcrs.*— Where 

a  female  passenger  is  thrown  down  on  leav- 
ing a  train,  and  has  her  dress  torn  off  and 
her  side  injured,  from  which  she  suflFers 
from  nervousness  and  insomnia,  a  verdict 
in  her  favor  for  ^750  should  not  be  dis- 
turbed. Hoffkins  v.  Manhattan  R.  Co  25 
A^.  ]'.  S.  R.  160,  53  Hun  634,  2  Silv.  Sup. 
Ct.  588,  6  A^.   Y.  Supp.  953. 

Proof  that  a  passenger  was  carried  250 
yards  past  his  station  and  put  ofl  in  the 
night-time  in  mud  half-way  to  his  boot  tops 
will  not  support  a  verdict  of  $300  against 
the  company,  where  it  is  not  shown  that 
he  suflered  any  inconvenience  other  than 
the  walk  back  to  the  station  and  having  to 
clean  his  boots  the  next  morning.  Te.xas 
Pac.  R.  Co.  V.  Florence,  4  Tex.  App.  {Civ. 
Cas.)  58,  14  S.   IV.  Rep.  1070. 

Proof  that  a  street-car  passenger  through 

*  Excessive  damages  for  injuries  to  passengers, 
see  note,  30  Am.  &  Enc.  R.  Cas.  543.  See 
also  Caruiagk  oi-   I'assi-.ngkrs,  040-051. 


the  negligence  of  the  driver  was  thrown 
down  and  "dazed,"  that  his  lip  was  cut, 
anol  that  he  paid  $5  for  having  his  lip 
treated,  and  lost  part  of  a  day,  will  not  sup- 
port a  verdict  for  $200.  Te.vas&'  P.  R.  Co. 
V.  Doherty,  4  Tex.  App.  {Civ.  Cas.)  231,  15 
S.  IV.  Rep.  44. 

A  passenger  paid  for  transportation  to  a 
certain  mile  post.  The  conductor  engaged 
to  stop  there  and  put  him  off.  On  nearing 
the  point  the  passenger  left  the  car,  and 
took  his  position  on  the  steps  ready  to  land. 
The  speed  of  the  train  was  but  slightly 
checked  ;  and  while  the  passenger  was  upon 
the  step  and  somewhat  encumbered  with 
baggage,  the  train  being  in  rapid  progress, 
a  sudden  jar  took  place  by  some  movement 
of  the  cars,  and  he  lost  his  footing  and  fell 
to  the  ground.  He  was  painfully  and  per- 
manently injured.  The  jury  gave  him  a 
verdict  for  over  $2000.  The  court  granted  a 
new  trial.  On  the  facts  in  the  record  the 
appellate  court  could  not  say  that  the  court 
abused  its  discretion.  Delane'v.  Central  R. 
&*  B.  Co.,  59  Ga.  633. 

36.  lyectioii  of  im.sseiiger.*— Where 
a  passenger  has  surrendered  his  ticket  and 
holds  a  conductor's  check  for  the  trip,  and 
is  delayed  by  a  wreck  on  the  road  and 
compelled  to  take  another  train,  and  the 
check  IS  refused,  and  the  passenger  is  ejected 
because  he  refuses  to  pay  the  extra  fare 
demanded  when  tickets  are  not  purchased 
before  entering  the  train,  he  is  entitled  to 
recover  something  more  than  for  his  loss 
of  time— enough,  at  least,  to  compensate 
him  for  his  humiliation  and  mortification  of 
being  ejected — yet  $2500  is  excessive.  Louis- 
ville &>  N.  R.  Co.  v.  U'^ilsey,  {Ky.)  12  S.  W. 
Rep.  275.— Reviewing  Louisville  &  N.  R. 
Co.  V.  Ballard,  8r  Ky.  307,  3  S.  W.  Rep. 
530. 

Where  a  passenger  is  ejected  from  a  car 
under  circumstances  for  which  he  can  only 
recover  compensatory  damages,  and  the 
only  unnecessary  force  used  is  seizing  him 
and  pulling  him  while  he  i^  holding  on  to 
the  rail  cf  the  {platform,  whereby  one  finger 
was  so  injured  that  a  felon  resulted,  a  ver- 
dict for  $3000  is  excessive,  and  should  be 
set  aside.  Cox  v.  New  York  C.  &>  H.  R.  R. 
Co.,  II  Hun{N.  Y.)  621. 

*  Various  illustrations  of  excessive  damuges 
for  ejecting  passenger,  see  note,  47  Am.  &  Eng. 
R.  Cas.  643.  See  also  39  Am.  &  Eng.  R.  Cas. 
420,  abstr.;  Ejection  of  Passknceks,  124- 
136. 


PI 


NEW   TRIAL,  37. 


855 


thrown 

was   cut, 

liis   lip 

not  sup- 

P.  R.  Co. 

)  231.  IS 

;ion  to  a 

engaged 

Hearing 

car,  and 

to  land. 

slightly 

was  upon 

■ired  with 


Damages  for  $600  against  a  railroad  com- 
pany for  putting  a  female  passenger  off  a 
train  after  midnight  are  excessive  where  it 
appears  that  she  was  put  off  with  others 
three  fourths  of  a  mile  from  the  station  ; 
that  the  only  inconvenience  suffered  was 
getting  her  feet  wet,  and  having  to  walk 
back  to  the  station,  and  carry  her  hand  bag- 
gage. Howe  V.  Oliver,  {Tex.  Civ.  App.) 
22  S.  W.  Kep.  828. 

Two  hundred  dollars  damages  are  not  ex- 
cessive for  the  humiliation  suffered  by  a 
passenger  whose  ticket  has  been  wrongfully 
refused  by  the  conductor,  and  who  was 
forced  to  pay  an  additional  fare  in  order  to 
avoid  expulsion  from  the  train.  Chicago 
&■*  E.  I.  R.  Co.  V.  Conley,  6  Ind.  App.  9,  32 
N.  E.  Rep.  865. 

The  facts  that  plaintiff  only  had  his  hands 
slightly  pinched  in  being  ejected  from  a 
train,  and  that  he  had  a  verdict  for  $350, 
contrary  to  a  strong  intimation  from  the 
court,  is  not  sufficient  to  show  that  the  jury 
were  actuated  by  passion  or  prejudice,  where 
the  evidence  was  conflicting,  and  the  jury 
had  a  right  to  consider  plaintiff's  injured 
feelings.  Hamilton  v.  Third  Ave.  R.  Co.,  8 
/.  <S-  S.  {N.  V.)  376. 

Where  a  street-car  passenger  is  ejected  on 
a  false  charge  of  being  intoxicated,  $400 
damages  is  not  so  large  as  to  evince  preju- 
dice, passion,  or  corruption  on  the  part  of 
the  jury,  and  a  judgment  thereon  will  not 
be  set  aside  as  e.xcessive.  Regncr  v.  Glens 
Falls,  S.  H.  &>  Ft.  E.  St.  R.  Co. ,  74  Hun  202, 
26  N.  V.  Supp.  625,  56  \\  V.  S.  R.  300. 

A  verdict  of  $50  damages  in  favor  of  a 
passenger  who  has  been  ejected  from  a  train 
for  refusal  to  pay  fare,  at  a  place  where  there 
was  no  station,  and  had  been  inconsequence 
compelled  to  walk  three  and  a  half  miles  to  ' 
her  home,  is  not  excessive.  Diirfec  v.  Union 
Pac.  R.  Co.    9  Utah  213,  33  Pac.  Rep.  944. 

A  verdict  for  S300  for  an  unlawful  expul- 
sion at  a  desolate  place  some  distance  from 
a  station  where  passage  could  be  procured 
is  not  excessive,  where  it  appears  that  the 
passenger  was  forcibly  ejected  in  such  a 
manner  as  to  excite  the  ridicule  t  the  other 
passengers.  Phettiplace  v.  Northern  J\ic. 
R.  Co.,  58  A»i.  &"  Eng.  R.  Cas.  61,  84  IVis. 
412,  54  N.  IV.  Rep.  io9i.— Following 
Wightman  v.  Chicago  &  N.  W.  R.  Co.,  73 
Wis.  169. 

Plaintiff,  a  passenger,  presented  a  valid 
tidket,  which  the  conductor  rudely  refused 
;.!id  told  p!;L::!ti!l  lie  \(on!ii  have  to  pay  or 


get  off.  To  avoid  being  ejected  he  got  off, 
but  again  entered  the  car  and  paid  his  fare. 
Held,  that  a  verdict  in  his  favor  for  $500 
should  be  set  aside.  McGinnis  v.  Missouri 
Pac.  R.  Co.,  21  Mo.  App.  399. 

A  lady  traveling  with  her  aunt  purchased 
first-class  tickets,  but  upon  entering  the  car 
platform  the  aunt  was  permitted  to  enter 
the  ludies'  car,  but  a  brakeman  refused  to 
allow  the  other  lady  to  enter  the  car,  and  . 
pushed  her  against  the  iron  railing,  hurt  her 
side,  and  forced  her  to  enter  and  travel  in 
the  smoking  car,  where  no  other  women 
were,  but  wliere  there  were  intoxicated  and 
boisterous  men,  one  of  whom  addressed  her 
with  improper  familiarity.  Held,  that  a 
verdict  in  her  favor  for  $650  damages  was 
authorized.  Texas  &'  P.  R.  Co.  v.  Johnson, 
2  Tex.  App.  {Civ.  Cas.)  154. 

A  verdict  for  S7000  in  favor  of  one  in- 
jured in  being  brutally  and  cruelly  removed 
from  a  train  was  held  not  excessive.  Mar- 
ion V.  Chicago,  R.  I.  &*  P.  R.  Co.,  64  Iowa 
568.  21  N.  W.  Rep.  86. 

a7.  Injury  to  property  ofabiittiiigr 
owner.* — Where  an  abutting  owner  sues 
a  railroad  for  damages  to  his  property  by 
reason  of  depreciation  in  its  value,  caused 
by  putting  in  additional  switches  in  front  of 
it,  a  verdict  of  $2000  will  not  be  set  aside 
as  excessive  where  plaintiff's  evidence  shows 
that  before  the  switches  were  put  in  his 
property  was  worth  $6000 ;  that  it  had  de- 
preciated nearly  fifty  per  cent,  since  by 
reason  of  the  soot,  smoke,  and  cinders 
thrown  in  and  about  his  house,  and  by  the 
necessary  obstruction  to  the  passage  to  and 
from  it,  and  the  disturbing  noises,  both  day 
and  night,  caused  by  the  increased  number 
of  trains  on  the  switches.  Gulf,  C.  (5^  S.  F. 
R.  Co.  V.  Necco,  {Tex.)  15  S.  IV.  Rep.  1102. 

A  ''erdict  for  $800,  in  an  action  to  recover 
for  the  depreciation  in  the  value  of  two  lots, 
caused  oy  the  construction  and  operation  of 
a  railroad,  will  be  set  aside  as  excessive 
where  the  proof  shows  that  the  lots  before 
the  railroad  was  built  were  worth  not  more 
than  8625.  Gulf,  C.  &-  S.  F.  R.  Co.  v.  Fink. 
{Tex.)  18  S.  IV.  Rep.  492. 

Plaintiff  brought  action  against  defendant 
company  for  taking  her  land  and  construct- 
ing its  road  thereon.  A  special  interroga- 
tory was  submitted  to  the  jury  whether  de- 
fendant entered  the  premises  as  a  trespasser, 

*  Injuries  to  abutting  property  caused  by  con- 
struction of  railroad.  Ks-rcssive  damages,  see 
52  Am.  &  Eno  R.  Cas.  33,  nOsir, 


I 


1' 


856 


NEW   TRIAL,  38-40. 


11 


rf    > 


I 


which  was  answered  in  the  negative.  The 
evidence  showed  the  value  of  tiie  land  to  be 
$ioo.  The  jury  gave  a  verdict  for  $250. 
HM,  that  as  defendant  was  not  a  trespasser 
the  verdict  was  clearly  excessive.  Kilter- 
man  V.  Chicago,  M.  «>  St.  P.  R.  Co.,  27  Am. 
&^  Etig.  K.  Cas.  432,  69  Iowa  440,  30  I\'.  IV. 
Rep.  174. 

JI8.  Injury  to  personal  property.— 
In  an  action  for  damages  both  to  land  and 
growing  crops  thereon  where  the  proof 
shows  that  the  damages  to  the  crops  could 
not  be  estimated  at  more  than  $400  or  a 
very  little  more,  and  failed  to  establish  any 
particular  sum  for  damages  as  to  the  land, 
a  verdict  for  $500  in  all  is  not  supported  by 
the  evidence.  St.  Louis,  A.  &'  T.  R.  Co.  v. 
Graham,  55  Ark.  294,  18  5.   W.  Rep.  56. 

Where  the  alleged  value  of  a  folding  ma- 
chine is  $600,  but  it  had  been  used  for  two 
years  after  its  shipment,  with  only  $37.50 
rei)airs,  a  verdict  against  the  carrier  for 
damages  and  injuries  to  it,  while  being  car- 
ried, fpr  $137  was  not  supported  by  the  evi- 
dence, though  the  owner  at  the  time  of  the 
trial  testifies  that  it  is  worthless.  Missouri 
Pac.  R.  Co.  V.  Breeding,  4  Tex.  App.  (Civ. 
Cas.)  217,  16  5.  IV.  Rep.  184. 

Defendant  company  fas:ened  a  telegraph 
wire  to  the  wall  of  a  building  occupied  by 
plaintiff,  which  caused  a  part  of  it  to  fall 
during  a  storm,  whereby  his  rooms  were 
flooded  by  water.  The  evidence  showed 
that  the  whole  value  of  the  property  in- 
jured was  $475,  and  that  it  could  have  been 
sold  for  $30  after  it  was  flooded.  HeM, 
that  a  verdict  for  the  whole  value  of  the 
property  was  excessive.  Gu//,  C.  (.'?«•  S.  F. 
R.  Co.  V.  Johnson,  71  Tex.  619,  i  L.  R.  A. 
730,  9  S.  IV.  Rep.  602. 

In  an  action  to  recover  damages  resulting 
from  a  team  of  horses  colliding  with  a  train 
the  evidence  showed  that  but  one  horse  was 
killed,  and  failed  to  show  that  the  other  was 
so  injured  as  to  be  worthless.  A  verdict 
was  rendered  for  a  sum  equal  to  the  highest 
value  placed  on  both  horses.  Held,  that 
the  verdict  was  not  supported  by  the  evi- 
dence. Texas  C.  R.  Co.  v.  Ascue,  {Tex.)  4 
5.  Jr.  Re/>.  13. 

In  an  action  for  damages  to  a  carriage  it 
appeared  that  it  was  once  worth  §500;  that 
it  had  been  twice  run  into  by  trains,  the 
damages  for  the  first  injury  (estimated  at 
from  $50  to  a  total  loss)  being  laid  in  the 
complaint  at$5o,  and  forthe  second  collision 
at  $450.    It  was  found  that  the  railroad 


company  was  not  liabK^  for  the  first  injury. 
The  jury  gave  a  verdict  of  $400.  He/d,  that 
as  there  was  nothing  to  show  that  the  jury 
did  not  take  into  consideration  the  danjages 
for  the  first  collision  the  verdict  should  be 
set  aside.  Missouri  Pac.  R.  Co.  v.  Peaj>, 
{Tex.)  20  5.    IV.  Rep.  57. 

39.  Killing  or  iiijiiringr  animals.* 
— It  is  not  error  in  a  trial  court  to  refuse  to 
set  aside  a  verdict  in  an  action  to  recover 
for  damages  to  cattle  while  being  carried, 
on  the  ground  that  the  verdict  is  excessive, 
where  the  evidence  is  conflicting,  but  the 
verdict  is  supported  by  evidence.  Galves- 
ton, H.  &^  S.  A.  R.  Co.  V.  Johnson,  {Tex.) 
19  S.  W.  Rep.  867. 

Plaintiff  sued  for  negligently  killing  a 
well-bred  English  mastiff  dog.  He  proved 
by  a  witness  who  made  a  practice  of  raising 
and  training  dogs,  and  knew  their  value, 
that  a  mastiff  trained  to  watch  was  worth 
from  $ioQ  to  $200.  and  this  evideitce  was 
uncontradicted.  Held,  that  a  verdict  for 
§96.83  should  not  be  sti  aside  as  excessive. 
Meisch  v.  Rochester  Elec.  R.  Co.,  25  N.  Y. 
Supp.  244,  55  iV.  Y.  S.  R.  146,  72  Hun  604. 

Plaintiff  sued  to  recover  $200.  the  value 
of  a  jack  killed  on  the  track,  and  recovered 
a  verdict  and  judgment  of  $125.  He  testi- 
fied that  he  valued  the  animal  at  $200  and 
had  so  valued  him  for  taxation,  but  that  he 
had  boui;ht  liim  for  $12.50.  It  was  shown 
that  the  animal  was  a  small  one,  known  as 
a  "  prairie  jack,"  and  that  the  person  from 
whom  plaintiff  had  bought  had  purchased 
him  for  §7  50,  and  that  the  previous  owner 
had  hougiit  him  for  $5  and  a  pocket  knife. 
Four  other  witnesses  testified  that  the  ani- 
mal was  not  worth  over  $15  in  the  market. 
Held,  that  the  verdict  was  so  manifestly 
against  the  weight  of  evidence  as  to  be  set 
aside.  Texas  &*  P.  R.  Co.  v.  Taylor,  2  Tex. 
App.  {Civ.  Cas.)  368. 

6.  Instances  of  Verdicts  Claimed  to  be 
Excessive. 

40.  Verdict  lor  $150.— Plaintiff  was 

thrown  from  his  carriagfe  by  a  collision  and 
suffered  a  fracture  of  both  arms.  Held,  that 
a  verdict  for  $150  did  not  mdicate  passion 
or  prejudice  on  the  part  of  the  jury,  though 
there  was  some  conflict  of  evidence,  and 
the  greater  number  of  witnesses  testified 

*See  also  Animals,  Injuries  to,  503, 
594. 


^pppp 


NEW   TRIAL,  41-45. 


857 


for  the  defendant.  Volk  v.  Livingston,  31 
N.  V.  S.  A\  668,  10  A'.  V.  Supp.  211. 

41.  $300.  —  Plaintiff's    evidence 

showed  that  he  was  so  injured  that  his  eyes 
were  closed,  or  partly  closed,  and  wholly 
useless  (or  several  weeks,  during  which 
time  he  was  sick  and  disabled,  and  suffered 
great  pain,  and  at  the  time  of  the  trial, 
nearly  three  years  afterward,  was  still  suffer- 
inj;.  Held,  that  a  verdict  for  $300  was  not 
excessive.  Schuler  v.  Third  Ave.  R.  Co., 
44  A^.  Y.  S.  K.  774.  «7  A',  y-  Snpp.%i\; 
affirmed  in  48  N.  V.  S.  A'.  663,  i  Misc.  351, 
20  A^.  K.  Supp.  683. 

42.  $350.  —  A  verdict  for  $350  is 

not  excessive  where  plaintiff  was  thrown 
out  of  his  buggy  and  was  confined  to  his 
bed  for  three  weeks.  Roberts  v.  Chicago  &* 
A.  W.  R.  Co.,  35  Wis.  679. 

The  uncontradicted  evidence  of  plaintiff 
sliowed  that  he  was  a  married  man,  a  tailor, 
and  worked  for  himself;  that' he  was  hurt 
about  his  ankle,  and  that  his  leg  was 
broken ;  that  he  was  taken  to  a  hospital, 
where  he  remained  about  eight  weeks,  suf- 
fering much  pain,  and  still  suffered  at  the 
time  of  the  trial,  and  was  unable  to  work. 
Held,  that  a  verdict  for  $350  was  not  exces- 
sive. Schapierer  v.  Third  Ave.  R,  Co.,  39 
N.   y.  S.  R.  209.  14  A^.   V.  Supp.  921. 

43.  $800.— Plaintiff,  a  female,  fell 

in  alighting  from  acar,  and  received  a  slight 
briiise  or  scratch  on  her  arm,  which  she 
claimed  resulted  in  a  sore  which  stiffened 
her  arm  and  incapacitated  her  to  labor  for 
three  months.  The  court  was  inclined  to 
the  opinion,  from  other  evidence,  that  the 
sore  resulted  from  bad  blood  rather  than 
from  the  fall,  yet  it  refused  to  set  aside  p 
verdict  for  $800,  a  medical  witness  having 
testified  that  the  fall  caused  the  sore,  which 
was  not  disproved  by  the  defendant.  Corri- 
gan  V.  Dry  Dock.  E.  li.  &•  B.  R.  Co.,  14  Daly 
120,  6  A^.  V.  S.  R.  243. 

44.  $1000.— Plaintiff  with  her  two 

children  was  carried  past  the  station  to 
wliicii  she  was  bound.  The  conduct  of  the 
conductor  was  courteous  and  respectful. 
Held,  that  a  verdict  for  ^1000  was  exces- 
sive. Trigg  V.  .9/.  Louis,  K.  C  ^^  N.  R. 
Co.,  6  Aui.  &^  ^"g-  ^i'-  Cas.  345,  74  Mo.  147, 
41  Am.  Rep.  305. 

For  an  injury  to  the  hip  and  sciatic  nerve 
which  has  caused  continuous  suffering  for 
more  than  five  years,  and  which  will  proba- 
bly be  permanent,  a  fi;.  Mug  of  damages  m 
the  sum  of  S'ooo  will   not  be  declare;!  ex- 


cessive. Winkler  v.  St.  Low's,  ..M.&»S. 
Ji.  Co.,  21  Mo.  App.  99. 

A  verdict  for  $1000  was  sustained  in  favor 
of  a  negro  boy,  sixteen  years  old,  injured 
while  working  as  brakeman.  Gulf,  C.  &*  S. 
F.  R.  Co.  v.  Jones,  76  Tex.  "350,  135.  W. 
Rep.  374. 

A  verdiGt  of  $1000  was  not  excessive  for 
injuries  suffered  by  a  colored  passenger 
through  the  conductor's  failure  to  protect 
him  from  molestation  and  humiliation  at 
the  hands  of  drunken  men  on  the  same 
train.  Richmond  (S^  D.  R.  Co.  v.  Jefferson, 
52  Am.  Sr'  Eiig.  R.  Cas.  438,  89  Ga.  554,  16 
S.  E.  Rep.  69. 

A  female  passenger  sued  for  being  ejected 
from  a  train,  and  tlie  evidence  showed  her 
entitled  to  recover  something.  At  the  first 
trial  she  received  a  verdict  for  $1000,  which 
was  set  aside,  and  a  second  verdict  was 
rendered  for  $500,  which  was  set  aside.  At 
the  third  trial  she  obtained  a  verdict  for 
$1000.  Held,lhat  the  limit  of  the  court's  dis- 
cretion had  been  reached  and  the  verdict 
could  not  be  interfered  with.  Johnson  v. 
Northern  Pac.  R.  Co.,  46  Fed.  Rep.  347. 

Plaintiff  testified  that  she  was  stru"'*  by 
a  street-car  and  severely  bruised  about  the 
hip  and  leg ;  that  she  suffered  great  pain 
and  required  medical  attention  for  four 
months,  during  which  time  she  was  unable 
to  attend  to  her  household  duties,  and  was 
still  suffering  at  the  time  of  the  trial.  Her 
physician  testified  that  he  found  her  suffer- 
ing from  severe  contusions  of  the  hip  and 
lower  part  of  the  back  ;  that  she  suffered 
exceedingly  in  moving  one  leg,  and  that 
rheumatic  fever  resulted,  and  that  she  was 
still  suffering.  Held,  that  a  verdict  for 
$1000  was  not  excessive.  O'  Toole  v.  Central 
Park,  N.  <S-  E.  R.  R.  Co.,  12  N.  Y.  Supp. 
347,  58  Hun  609,  35  A^.  Y.  S.  R.  591  ;  af- 
firmed in  128  A'^  Y.  597,  mem.,  28  A'^,  E. 
Rep.  251. 

45.  $1500.— A  verdict  for  $1500 

for  a  severe  permanent  injury  to  a  woman 
twenty-seven  years  old  will  not  be  disturbed 
where  it  appears  that  the  trial  was  so  con- 
ducted as  not  to  arouse  passion  or  prejudice 
against  defendant,  and  the  jury  were  told 
to  return  such  a  verdict  as  would  simply 
compensate  plaintiff  for  the  injuries  re- 
ceived. Mitchell  V.  Broadway  Sr'  S.  A.  R. 
Co.,  70  Hun  (N.   y-)  387- 

Fifteen  hundred  dollars  damages  are  not 
excessive  where  a  more  aggravated  case  of 
hernia  was  produced  than   had  before  ex- 


I 


vi 


I    If) 

pi 

hi 


I'- 
ll 


858 


NEW   TRIAL,  4G-51. 


isted,  caused  by  defendant's  cars  running  oflf 
the  track  and  shocking  the  nervous  system 
of  plaintifT.  Houston  &^  T.  C.  A\  Co.  v. 
Shafer,  6  Am.  &-  Eng.  R.  Cas.  421,  54  Tex. 
641. 

Plaintiff  was  a  working  girl  and  received 
injuries  which  confined  her  to  her  bed  for 
a  month,  and  it  was  a  year  before  she  was 
able  to  earn  anything,  during  which  time 
she  suflfered  more  or  less.  At  the  time  of 
the  injury  she  was  receiving  wages  and 
board  worth  $30  a  month,  and  her  medical 
attendance  cost  her  $205.  Held,  that  a 
verdict  for  $'500  should  not  be  ^et  aside  as 
excessive.  Fowler  v.  Broadway  &^  S.  A. 
R.  Co.,  36  A^.  V.  S.  R.  806,  59  Hun  623,  13 
N.  Y.  Supp.  453. 

46. $  1 000.— PlaintiflE  was  a  farmer 

about  sixty-two  years  of  age  when  injured. 
Prior  thereto  he  was  healthy  and  strong, 
and  able  to  do  regular  work.  The  evidence 
tended  to  show  that  his  injuries  were  per- 
manent and  would  probably  disable  him 
for  the  remainder  of  his  life.  Held,  that  a 
verdict  for  $1600  should  not  be  disturbed. 
Duffy  V.  Chicago  Or*  N.  IV.  R.  Co.,  34  IV/s. 
188,  8  Am.  Ry.  Rep.  i. — Reviewing  Goodno 
V.  Oshkosh,  28  Wis.  300 ;  Spicer  v.  Chicago 
&  N.  W.  R.  Co.,  29  Wis.  580;  Patten  v,  Clii- 
cago  &  N.  W.  R.  Co.,  32  Wis.  524. — Distin- 
guished IN  Kittner  v.  Milwaukee  &  N.  R. 
Co.,  "Jl  Wis.  1. 

47.   $1650.  —  Plaintiff,   a    hotel 

waiter,  was  sent  by  a  hotel  keeper  as  was 
the  daily  custom,  to  take  dinner  to  a  con- 
ductor, who  told  him  to  put  the  dinner  upon 
the  desk  in  the  cab  car  and  then  commanded 
him  to  leave  the  car,  which  was  moving 
rapidly,  and  threatened  that  if  he  did  not 
jump  from  the  car  he  would  kick  bin;  off ; 
and  plaintiff  then  left  the  car  and  was 
thrown  upon  the  track,  jerked  under  the 
wheels,  and  had  one  of  his  feet  cut  off.  Held, 
that  the  evidence  warranted  a  verdict  for 
$1650  against  the  company.  Savannah,  F. 
&*  W.  R.  Co.  v.  Watson,  89  Ga.  110,  14  i^ 
E.  Rep.  890. 

48.  $1840.— Where  tlie  evidence 

shows  that  [ilaintiff's  leg  was  broken,  and 
that  she  was  unable  to  walk  for  four  months, 
and  suffered  great  pain,  and  was  put  to 
considerable  expense,  the  court  will  not  set 
aside  a  verdict  for  $1840.  Sheff  v.  Hunt- 
ington, 16  W.  Va.  307. 

49.  $2000.— A  verdict  for  $2000 

in  favor  of  a  brakeman  for  an  injury  which 
necessitated  amputation  of  the  left  thumb 


at  the  second  joint  will  be  set  aside  as  ex- 
cessive. Louisville  &•  N.  R,  Co.  v.  Law, 
(A>.)2t  S.  IV.  Rep.  6j^8. 

A  verdict  of  $2000  for  damages  to  a 
married  woman  by  being  thrown  from  the 
steps  of  a  car  while  dismounting  will  not  be 
set  aside  as  excessive  wiiere  the  evidence 
shows  that  she  was  so  seriously  injured  as 
practically  to  lose  the  use  of  one  arm. 
Little  Rock  &•  Ft.  S.  R.  Co.  v.  Harkey, 
(Ark.)  155.   W.  Rep.  456. 

Where  the  evidence  shows  that  plaintilT's 
injuries  consisted  of  a  bad  sprain  of  tlie 
ankle  and  a  rupture  or  great  sprain  of  the 
ligaments  of  the  ankle  joint,  the  court  will 
not  set  aside  a  verdict  for  $2000,  though  it 
seems  to  the  court  large.  Dimmittx.  Han- 
nibal &-  St.  J.  R.  Co.,  40  Mo.  App.  654. 

When  a  bodily  injury  of  a  permanent  char- 
acter is  sustained,  inflicting  great  bodily 
pain  when  it  was  received  and  for  a  long 
time  afterwards,  a  verdict  for  $2000  is  not  so 
excessive  as  to  require  a  reversal.  Texas  &* 
P.  R.  Co.  V.  Lowry,  61  Tex.  149.  See  also 
Lmwc  v.  Minneapolis  St.  R.  Co.,  37  Minn. 
283.  34  A^.  W.  Rep.  33. 

Plaintiff  was  a  shoemaker  and  earning 
$25  a  week  prior  to  his  injuries.  He  was 
confined  to  his  bed  for  ten  days,  and  was 
prevented  from  doing  his  work  for  some 
five  weeks.  His  earning  power  was  reduced 
from  $25  per  week  to  %j  or  $8  per  week. 
Held,  that  a  verdict  for  $2000  was  not  ex- 
cessive. Miller  v.  Manhattan  R.  Co.,  73 
Hun  512,  26  N.  V.  Supp.  162.  56  A'^.  V.  S.  AV 
189. — Following  Strohm  v.  New  York, 
I .  E.  &  W.  R.  Co.,  96  N.  Y.  305. 

50.  $2250.— A  car  in  which  plain- 
tiff was  riding  was  derailed  and  turned 
over,  and  she  had  the  leaders  of  her  hand 
cut,  from  which  her  hand  was  stiffened  and 
crippled,  and  from  which  she  suffered  severe 
pain  and  anguish.  Medical  witnesses  testi- 
fied that  her  fingers  were  permanently  dis- 
abled. Held,  that  a  verdict  for  $2250  was 
large,  but  did  not  so  plainly  show  passion 
or  prejudice  on  the  part  of  the  jury  as  to 
justify  the  court  in  setting  it  aside.  Honey- 
cut  t  V.  St.  Louis,  I.  M.  &^  S.  R.  Co.,  40  Mo. 
App.  674. 

51.    $2500. —  Where    evidence 

tended  to  show  that  plaintiff's  spine  was 
seriously  and  permanently  injured  so  as  to 
render  him  forever  incapable  of  performing 
ordinary  manual  labor,  and  subjecting  him 
to  constant  pain,  a  verdict  for  $2500  dam- 
ages was  not  excessive.     Macy  v.  St.  Paut 


w 


NEW   TRIAL,  53-54. 


85d 


as  ex- 
r,  LaTV, 


&*  D.  Ji.  Co.,  35  Mtntt.  200,  28  .V.  I!'.  Rep. 
249. 

Where  the  evidence  tends  to  prove  a 
severe,  and  probably  permanent,  injury  to 
plaintiff's  hand  and  wrist,  a  verdict  for 
$2500  ought  not  to  be  set  aside  as  excessive. 
Malay  v.  Nexu  York  C.  A'.  Co.,  58  Bard.  (JV. 
y.)  182,  40  How.  Pr.  274. 

A  verdict  for  $2500  in  favor  of  a  female 
passenger  will  not  be  set  aside  as  excessive 
where  it  appears  that  she  required  medical 
attendance  for  some  time,  and  that  the  in- 
iuries  were  permanent,  and  that  she  will  be 
more  apt  to  suffer  from  other  ailments  than 
if  she  had  not  been  injured.  Crank  v. 
Forty- second  St.  &-  St.  N.  A.  li.  Co.,  25  N.  V, 
S.  A'.  53,  6  A'.  V.  Siipp.  229,  53  Hun  425  ; 
affirmed  in  127  A'.  Y.  648,  viem.,  27  N.  E. 
Rep.  856. 

Where  a  car  is  derailed  and  a  passenger 
is  greatly  cut  and  bruised  by  its  turning 
over,  and  the  evidence  shows  that  his  in- 
juries are  severe,  a  verdict  (or  $2500  will  not 
be  set  aside  as  excessive,  though  there  is 
some  conflict  as  to  the  nature  of  the  in- 
juries by  the  medical  witnesses  testifying. 
Gulf,  C.  Or*  S.  F.  R.  Co.  V.  Smith,  74  Tex. 
276,  II  5.  W.  Rep.  1 104. 

A  lady  aged  sixty-two  was  unintentionally 
injured  by  having  an  arm  broken,  which 
resulted  in  a  protracted  effort  at  cure,  with- 
out success,  so  tliat  siie  could  never  again 
perform  her  usual  domestic  duties.  Held, 
that  a  verdict  for  $2500  damages  was  not  so 
excessive  as  to  justify  a  new  trial.  Pitts- 
burgh, C.  (S^  St.  L.  R.  Co.  v.  Sponicr,  S  Am. 
iS>»  Eng.  R.  Cas.  453,  85  Ind.  165. 

52-  $2726.— The  injuries  received 

by  plaintiff  produced  pains  in  her  back,  loss 
of  memory  to  some  extent,  paralysis  in  one 
side  for  three  or  four  weeks,  and  some 
hemorrhage,  with  a  tendency  to  miscar- 
riage, and  she  still  suffers  at  times  from 
pams  in  her  sides  and  lower  limbs,  and 
cannot  use  one  arm  in  lifting  as  before  the 
accident.  Held,  that  a  verdict  (or  §2725  was 
not  excessive.  Rrown  v.  Hannibal  &•  St. 
/  R.  Co.,  42  Am.  &*  Eng.  R.  Cas.  87,  99  Jl/o. 
310.  12  .S".  rr.  Rep.  655. 

53.   $3000.— Where   the   plaintiff 

recovered  a  judgment  for  $3000  as  the  per- 
sonal representative  of  a  deceased  minor, 
who  at  the  time  of  his  death  was  eleven 
years  and  eight  months  old,  and  was  also 
intelligent,  healthy,  and  promising,  and  le(t 
surviving  him  a  (ather,  who  was  a  poor 
man,  working  as  an  engineer  ot  steam  ma- 


chinery, and  having  a  wife  and  three  chil- 
dren— held,  not  so  grossly  excessive  as  to 
require  a  reversal.  Union  Pac.  R.  Co.  v. 
Dunden,  34  Am.  &^  Eng.  R.  Cas.  88,  37  Kan. 
I,  14  Pac.  Rep.  501. 

Plaintiff  was  thrown  to  the  ground  by  a 
sudden  start  on  leaving  a  train.  A  bruise 
on  her  head  swelled  up  to  the  size  of  an  egg 
and  left  a  depression  in  the  skull.  Her 
rigiit  side  was  injured  from  her  waist  to  her 
feet,  one  knee  swelled  and  remained  larger 
than  the  other  to  the  time  o(  the  trial,  and 
she  was  lame  and  sometimes  could  not 
walk.  Her  physician  testified  that  the  de- 
pression in  the  skull  and  the  enlargement  of 
the  knee  were  permanent.  Held,  that  a  ver- 
dict for  $3000  was  not  excessive.  Mont- 
gomery V.  Long  Island  R.  Co.,  25  N.  Y.  S.  R. 
159.  53  ffun  633,  6  A^.  Y.  Supp.  178. 

In  an  action  by  a  husband  to  recover 
pecuniary  loss  resulting  from  an  injury  to 
his  wife,  the  evidence  showed  that  she  (ell 
from  defendant's  train,  which  caused  a  frac- 
ture of  the  scapula  o(  the  left  shoulder 
which  never  united,  and  which  le(t  her  per- 
manently disabled  in  her  shoulder  and  ^rm. 
The  injury  was  claimed  to  be  incurable,  and 
she  was  compelled  to  wear  an  iron  (rame  to 
support  her  shoulder,  and  even  then  could 
make  no  exertion  without  pain.  Held,  that 
a  verdict  for  $3000  would  not  be  disturbed, 
as  the  jury  had  a  right  to  consider,  in  addi- 
tion to  the  direct  loss,  the  loss  o(  society 
and  companionship,  Allen  v.  Manhattan 
R.  Co.,  28/.  <S-  S.  230,  17  A^.  Y.  Supp.  187, 
42  A'.  Y.  S.  R.  22J,  viem.;  affirmed  in  137 
A^.  F.  561.  33  N.  E.  Rep.  338. 

A  verdict  o(  $3000  is  not  excessive  where 
the  evidence  tends  .to  show  that  plaintiff's 
injuries  were  of  a  permanent  character  and 
seriously  impaired  his  ability  to  perform  the 
manual  labor  to  which  he  was  accustomed 
before  the  accident.  Wesley  v.  Chicago, 
St:  P.  &*  K.  C.  R.  Co.,  84  Iowa  441.  51  A^. 
IV.  Rep.  .163. 

54.  $3200 A  child  two  and   a 

half  years  old  was  run  over  by  a  street-car, 
and  the  attending  physicians  testified  that 
the  larger  bones  o(  the  le(t  leg  were  laid 
bare  (rom  below  the  knee  to  the  ankle;  that 
there  was  a  complete  (racture  o(  the  large 
bone  above  the  ankle  joint  and  a  diagonal 
splint  o(  the  bone  two  or  three  inches  long; 
that  the  foot  sagged  to  the  outer  side  and 
hung  down ;  that  the  bone  when  healed 
would  be  slightly  shorter,  and  that  the  de- 
formity would  be  slightly  increased  as  the 


8C0 


NEW   TRIAL,  55-00. 


child  became  older,  and  tliat  she  would 
probably  not  be  able  to  touch  her  heel 
readily  when  walking.  Held,  that  a  verdict 
for  $3200  was  not  excessive.  Hyland  v. 
Yonkers  N.  Co.,  4  N.  Y.  Supp.  305.  51  Hun 
643,  22  N.  Y.  S.  R.  100 ;  affirmed  in  1 19  /V. 
Y.  612,  num.,  23  A'.  E.  Rip.  1 143,  mem. 

55.  $3500.— A  verdict  for  $3500 

in  favor  of  a  woman  whose  hip  was  per- 
manently injured,  the  leg  being  shortened 
one  inch,  and  who  suffered  much  pain  and 
other  inconveniences  likely  to  be  permanent, 
was  not  so  excessive  as  to  warrant  the  in- 
terference of  the  court.  McDonald  v.  Ash- 
land, 78  Wis.  251,  47  N.  IV.  Rep.  434.— 
Distinguishing  Goodno  v.  Oshkosh,  28 
Wis.  300. 

Plaintiff,  a  woman  sixty-four  years  old, 
healthy,  a  good  worker,  and  earning  $1.25, 
'per  (lay,  was  injured  in  the  head,  lost  three 
toes,  suffered  great  pain,  was  seven  weeks  in 
the  hospital,  and  has  earned  nothing  since. 
Held,  that  a  verdict  for  $3500  was  not  ex- 
cessive. Larkin  v.  New  York  &•  N.  R. 
Co.,  46  N.  Y.  S.  R.  658. 19  TV.  Y.  Supp.  479  \ 
affirmed  in  138  A'.  Y.  634,  mem.,  51  N.  Y. 
5.  A'.  935,  mem.,  33  N.  E.  Rep.  1084. 

50.  $3050.— A  verdict  for $3650 as 

damages  for  severe  injuries  sustained  by  an 
employe  in  consequence  of  the  unsafe  con- 
dition of  the  track,  and  of  unsafe  appliances 
furnished  by  the  company — held,  not  exces- 
sive. Gorham  v.  Kansas  City  &*  S.  R.  Co., 
113  Mo.  408,  20  S.   W.  Rep.  1060. 

57.  $4000.— Where  a  jury  finds 

upon  conflicting  evidence  that  plaintiff's 
spine  was  permanently  injured,  a  verdict  in 
his  favor  for  $4000  should  not  be  disturbed 
as  excessive.  Reed  v.  New  York  C.  R.  Co., 
56  Barb.  {N.  Y.)  493- 

Where  the  evidence  shows  that  a  female 
passenger  fell  in  gettingon  a  car  and  injured 
her  spine,  causing  pain  in  walking,  and  also 
bringing  on  prolapsus  uteri,  which  her  phy- 
sician testified  mi^'ht  cause  her  life-long 
suffering,  a  verdict  for  $4000  should  not  be 
set  aside  as  excessive.  Valentine  v.  Broad- 
loav  <S-  S.  A.  R.  Co.,  14  Daly  540.  4  A^  Y. 
Supp.  481,  16  N.  Y.  S.  R.  602.  Fitton  v. 
Brooklyn  City  R.  Co.,  25  N.  Y.  S.  R.  94S,  5 
N.  Y.  Supp.  641  ;  affirmed  in  127  N.  Y.  650, 
mem.,  27  .V.  E.  Rep.  856. 

58.  $4500.  —  Plaintiff,   a    grain- 

stower,  recovered  S4500  for  the  fracture  of 
his  arm  by  being  run  over  by  a  street-car, 
the  only  proof  of  tlie  lasting  character  of  the 
injurv  beinv^  ihat  of  nl:iiiitiff  and  a  fellow- 


laborer,  from  which  injury  it  was  claimed  he 
could  not  do  the  work  of  an  able-bodied 
man.  Held,  that  the  damages  were  exces- 
sive. Chicago  IV.  D.  R.  Co.  v.  Hughes,  87 
///.  94. 

In  an  action  for  an  injury  to  plaintiff's 
five-year-old  son,  resulting  in  the  loss  of  a 
leg  and  the  toes  of  the  other  foot,  where 
the  testimony  is  to  the  effect  that  the  boy's 
services  would  be  worth  one  hundred  dol- 
lars per  year  from  his  tenth  or  twelfth  year 
until  he  attained  his  majority,  a  verdict  of 
$4500  is  excessive.  Hurt  v.  St,  Louis,  I.  M. 
jS^  S.  R.  Co.,  34  Am.  cS-  Eng.  R.  Cas.  422, 
94  Mo.  255,  13  M'est.  Rep.  233,  237,  7  S.  IV. 
Rep.  I.— Quoting  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Brown,  26  Kan.  458 ;  Little  Rock  i 
Ft.  S.  R.  Co.  7/.  Barker,  33  Ark.  369. 

50.  $4750.  —  Plaintiff  was  em- 
ployed as  a  section  foreman,  and  was  in- 
jured when  thirty-two  years  old.  He  was 
cotifined  to  his  bed  eight  weeks,  suffered 
much  pain,  his  leg  was  permanently  short- 
ened, and  his  nervous  system  affected. 
Held,  that  a  verdict  for  $4750  was  not  ex- 
cessive. Dougherty  v.  Rome,  W.  <&»  O.  R. 
Co.,  45  N.  Y.  S.  R.  154,  18  N.  Y.  Supp.  841, 
64  Hun  633,  mem. ;  affirmed  in  1 38  N.  Y. 
641,  53  N.  Y.  S.  R.  929,  34  N.  E.  Rep.  512. 

Plaintiff's  evidence  tended  to  show  that 
previous  to  the  accident  she  had  been  in 
reasonably  good  health,  but  by  the  accident 
she  was  bruised  in  different  parts  of  her 
body,  and  that  she  suffered  pain  in  her 
hands,  arms,  legs,  and  back  to  the  time  of 
the  trial,  and  was  unable  to  do  anything  o" 
follow  her  occupation  of  nurse.  The  jury 
returned  a  verdict  for  $4750.  The  comp.mv 
gave  evidence  tending  to  show  that  she  was 
addicted  to  the  use  of  quinine  and  morphine 
and  was  suffering  from  a  wound  received  in 
childhood,  all  of  which  was  denied  by  plain- 
tiff and  her  medical  witnesses.  Held,  that 
the  question  of  whether  her  condition  re- 
sulted from  the  accident  was  for  the  jury, 
and  that  the  court  would  not  interfere  with 
the  verdict.  Haviland  v.  Manhattan  R. 
Co.,\i  N.  Y.  Supp.  898,  40  N.  Y.  S.  R.  77 ^ ; 
affirmed  in  1 31  N.  K.  630, /«t';«.,  30  N.  E. 
Rep.  864. 

00.  $5000.— A  verdict  for  $5000  in 

favor  of  a  brakeman  for  loss  of  two  fingers 
is  so  grossly  excessive  as  to  justify  the  ap- 
pellate court  in  setting  it  aside.  Louisville 
£>•  iV.  R.  Co.  v.  Foley,  94  Ry.  220,  21  S.  IV. 
Rep.  866. 

Plaintiff  was  in  her  sixty-ninth  year  when 


NEW   TRIAL,  «0. 


861. 


intiff's 
s  of  a 
where 
:  boy's 
d  dol- 
h  year 
iict  of 

/.  M. 

.  422, 

S.  W. 

F.  R. 

lock  S: 


injured.  She  was  a  confirmed  invalid,  and 
earned  an  average  of  $6  a  week  in  washing 
and  scrubbing.  She  received  a  scalp  wound 
which  in  itself  was  neither  painful  nor  seri- 
ous, and  if  it  resulted  in  anything  serious  it 
was  due  to  her  condition.  Held,  that  a  ver- 
dict for  $5000  was  excessive,  and  a  new  trial 
would  be  ordered  unless  she  stipulated  to 
remit  one  half  of  the  amount.  Anderson  v. 
Manhattan  K.  Co.,  49  N.  V.  S.  A'.  233.  i 
Mt'sc.  504,  21  A^.  V.  Supp.  I. 

When  the  proof  shows  that  at  the  time  of 
the  injury  plaintilT,  an  employe,  was  forty- 
seven  years  old  and  earning  $50  per  month, 
and  that  the  fracture  of  his  ankle  was  very 
painful  and  would  probably  result  in  a  per- 
manent disability,  a  verdict  for  $5000  dam- 
ages will  not  be  disturbed  as  excessive. 
Richmond  &*  D.  R.  Co.  v.  Farmer,  97  Ala. 
ii,\.\z  So.  Rep.  86. 

Evidence  that  plaintiff  had  several  ribs 
broken,  a  hip  contused,  his  nose  broken 
and  disfigured,  a  permanent  case  of  catarrh 
superinduced  and  the  sense  of  smell  im- 
paired, as  results  of  an  injury,  will  justify  an 
award  of  $5000  as  damages.  Fordyee  v. 
Jackson,  56  Ark.  594,  20  S.  W.  Rep.  528, 

597. 

Though  it  is  apparent  that  plaintifT  con- 
tributed to  the  injury,  this  court  cannot  be 
certain,  on  the  facts  in  evidence,  that  the 
damages  were  excessive,  the  injury  being 
immeasurable  by  a  court  as  to  pain  and  suf- 
fering, and  the  damages  found  being  S5000. 
Metropolitan  St.  R.  Co.  v.  Moore,  41  Am. 
&^  Eng.  R.  Cas.  240,  83  Ga.  453,  10  5.  E. 

Rep.  730- 

Plaintiff  was  about  twenty-one  years  of 
age  when  injured  and  was  earning  $45  a 
month.  He  fell  fifty-two  feet,  the  train  be- 
ing upon  a  trestle,  was  unconscious  several 
days  and  in  bed  over  a  month,  suffered  great 
pain  for  a  long  time,  and  became  generally 
debilitated.  Held,  that  $5000  damages  were 
not  excessive.  Georgia  Pac.  R.  Co.  v.  Hud- 
son, 89  Ga,  558,  16  S.  E.  Rep.  70. 

A  verdict  for  $5000  damages  for  personal 
injuries  to  a  healthy,  active  woman  seventy 
years  old  which  permanently  destroyed  the 
use  of  one  of  her  limbs  is  not  excessive. 
Hinton  v.  Cream  City  R.  Co.,  65  Wis.  323,  27 
N.  IV.  Rep.  147- 

The  evidence  showed  that  plaintiff's  inju- 
ries were  serious  and  permanent.  His  thigh 
bone  was  fractured,  which  rendered  him  a 
cripple  for  life,  and  he  received  other  inju- 
ries.  Held,  that  the  court  regarded  a  verdict 


for  §5000  as  hiffh.  Snt  not  so  excessive  as  to 
justify  a  reversal.  Chicago  City  R.  Co.  w 
Mumford,  3  Am.  &- Eng.  R.  Cas.  312,  97 
///.  560, 

Plaintiff  was  thirty-five  years  old  at  the 
time  of  his  injury ;  his  right  eye  was  en- 
tirely destroyed,  the  other  eye  was  affected 
whenever  he  took  cold,  and  he  could  not 
do  more  than  half  the  work  he  could  before 
the  accident.  Held,  that  a  verdict  for  S5000 
was  not  excessive.  Johnson  v.  Missouri  Pac. 
R.  Co.,  96  Mo.  340.  9  .S".  W.  Rep.  yep. 

A  verdict  for  $5000  damages,  where  plain- 
tiff sustained  a  fracture  of  the  thigh  bone, 
followed  by  pain,  permanent  after-effects, 
etc.,  is  not  sufficiently  large  to  justify  a  re- 
versal. O'Coniiell  V.  St.  Louis  C.  &*  IV.  R. 
Co.,  106  Mo.  482,  17  S.  W.  Rep.  494. 

Plaintiff's  wrist  was  sprained  and  his  right 
leg  injured  so  that  he  suffered  constant 
pain,  was  confined  to  his  room  for  some 
time,  and  has  been  unable  to  attend  to  liis 
outside  business.  His  physicians  testified 
tiiat  the  injury  to  his  leg  was  irreparable, 
which  was  denied  by  those  for  defendant. 
Held,  that  the  question  was  for  the  jury,  and 
that  a  verdict  of  $5000  should  not  be  inter- 
fered with.  Kellow  v.  Long  Island  R.  Co., 
42  N.  Y.  S.  R.  813.  62  Hun  620,  16  N.  V. 
Supp.  676. 

As  plaintiff  was  entering  defendant's  ele- 
vated train  a  brakeman  forcibly  swung  a 
gate  against  her,  striking  her  a  severe  blow, 
which  was  immediately  followed  by  pains, 
and  ultimately  by  a  miscarriage.  Held,  that 
a  verdict  for  $5000  should  not  be  disturbed 
as  excessive.  Butler  v.  Manhattan  R.  Co., 
52  A'.  Y.  S.  R.  498,  30  Abb.  N.  Cas.  78,  3 
Misc.  453,  23  A^.  Y.  Supp.  163;  affirmed  in 
60  A^.  Y.  S.  R.  873,  mem.,  143  A^.  Y.  630, 
mem.,  yj  N-  E.  Rep.  826. 

Plaintiff  was  confined  from  two  to  three 
weeks  to  his  bed,  but  did  not,  when  quiet, 
suffer  greatly.  After  that  period  he  began 
to  walk  about,  though  with  great  difficulty, 
but  did  not  resume  business  for  three 
months.  At  the  time  of  the  trial,  thirteen 
months  after  the  accident,  he  was  still  feel- 
ing some  pain  and  inconvenience.  Held,  if 
such  temporary  confinement  and  pain  were 
the  only  consequences  of  the  injury,  that  a 
verdict  of  $5000  was  excessive.  But  there 
being  evidence  from  which  the  jury  might 
find  plaintiff  would  never  entirely  recover, 
the  attending  physician  and  two  others  tes- 
tifying that  in  their  opinion  any  imprudence 
or  unusual   exposure   might  lead  to   very 


862 


NEW  TRIAL,  01-04. 


nv-i 


serious  tind  even  fatal  results,  a  verdict  for 
that  amount  was  not  disturbed.  Pittsburg, 
C.  6*  St,  L.  K.  Co.  V.  Thorn f  son,  56  ///.  138, 
3  Am.  Ry.  Rep.  454. 

01.  #5500.— VViierc  tiie  evidence 

justifies  tlie  jury  in  finding  that  plaintiff's 
injuries  are  permanent,  and  will  unfit  him 
for  the  business  for  which  he  has  been 
reared,  and  upon  which  he  relied  for  a  sup- 
port for  himself  and  family,  or  for  any  la- 
borious employment,  and  that  he  will  be 
subject  to  pain  and  suffering  during  his 
life,  a  verdict  for  $5500  will  not  be  set  aside 
as  excessive.     Karasich  v.    Hasbrouck,   28 

Wis.  569. 

F'laintiff  had  two  ribs  broken  and  the 
pleura  of  the  left  lung  was  lacerated,  and 
according  to  tile  testimony  of  his  physician 
it  was  reabonpbly  certain  that  there  would 
be  permanent  adhesion  of  the  pleura  to  the 
lung  tissue.  Previous  to  the  accident  he 
had  been  able  to  do  full  work,  and  had  been 
earning  from  $2.50  to  S3  per  day.  After 
the  accident  he  was  not  able  to  work  at  all 
for  six  months,  and  at  no  time  had  been 
able  to  work  more  than  a  few  days  in  the 
week.  He  was  fifty-five  years  old.  Held, 
that  a  verdict  for  $5500  was  not  excessive. 
Germann  v.  Suburban  Rapid  Transit  Co.,  37 
N.  v.  S.  R.  360,  13  iV.  V.  Supp.  897 ;  affirmed 
in  128  A^.  Y.  681,  mem.,  29  A'^.  E.  Rep.  149, 
40  A'.  Y.  S.  R.  980,  >«<?/«.— Distinguished 
IN  Hayden  v.  Brooklyn  El.  R.  Co.,  44  N.  Y. 
S.  R.  377,  17  N.  Y.  Supp.  352. 

02.  $5875.— Plaintiff  was  a  farm- 
er, and  while  driving  his  team  was  injured 
at  a  crossing.  He  suffered  pecuniary  loss 
by  injuries  to  his  team  and  expense  of 
medical  attendance  and  nursing  amounting 
to  $575  to  $600.  He  lost  the  toes  of  his 
left  foot.  Held,  that  a  verdict  for  $5875 
was  excessive  and  should  be  set  aside. 
Chicago  Sf  R.  I.  R.  Co.  v.  McKean,  40  ///. 
218.— Distinguishing  Chicago,  B.  &  Q. 
R.  Co.  V.  Triplett,  38  111.  482. 

03.  $0000.— A  verdict  for  $6000 

in  a  personal  injury  case  is  not  excessive 
where  plaintiff  was  earning  $1 1 50  a  year,  and 
had  expended  $400  for  medical  treatment, 
and  was  in  part  paralyzed  by  reason  of  the 
injury.  Mellor  v.  Missouri  Pac.  R.  Co.,  47 
Am.  &*  Eng.  R.  Cas.  450,  105  Afo.  455,  16  S. 

W.  Rep.  849. 

A  verdict  of  $6000  in  favor  of  a  brakeman 
for  a  personal  injury  will  not  be  set  aside  as 
excessive  where  the  evidence  shows  that  he 
was  twenty-seven  years  of  age  and  earning 


$60  to  $75  per  month,  and  where  the  acci- 
dent reduced  his  capacity  for  labor  one 
half.  Houston  &-  T.  C.  R.  Co.  v.  Lowe, 
{Tex.)  II  S.  W.  Rep.  1065. 

Plaintiff  had  his  hand  and  wrist  severely 
injured,  by  which  he  lost  three  fingers,  and 
during  the  following  eight  months  his  hand 
was  sore  and  needed  treatment  and  frequent 
operations,  various  bones  being  removed 
from  the  hand  and  wrist ;  he  suffered  great 
pain,  and  the  injury  left  him  in  a  nervous, 
excitable,  and  somewhat  delirious  condi- 
tion. He  was  a  married  man  with  one 
child,  and'was  receiving,  at  the  time  of  the 
accident,  Si. 50  per  day.  Held,  that  a  verdict 
for  $6000  was  not  excessive.  Murtaugh  v. 
Ne^u  York  C.  &^  H.  R.  R.  Co.,  23  A'.  Y.  S. 
R.  636,  3  A^.  F.  Supp.  4S3,  49  Hun  456.— 
Quoting  Curtis  v.  Rochester  &  S.  R.  Co., 
18  N.  Y.  534. 

Plaintiff,  a  female  passenger,  fell  and 
broke  her  knee-pan.  She  was  taken  to  a 
hospital,  where  she  remained  between  three 
and  four  months,  during  which  time  she 
underwent  great  pain.  Her  attending  sur- 
geon testified  that  there  was  some  stiffness 
of  the  knee  and  swelling,  but  there  was  no 
reason  to  believe  that  it  would  be  perma- 
nent ;  that  she  might  be  lame  for  some  time, 
but  in  two  years  at  the  farthest  she  would 
have  a  good  joint.  She  had  been  engaged 
in  doing  crayon  work  or  in  coloring  photo- 
graphs. For  the  latter  she  received  about 
$9  a  week,  and  for  the  crayon  work  higher 
pay  for  the  time  employed,  but  the  work 
was  not  so  regular  ;  she  was  prevented  from 
doing  the  work  after  the  accident.  Held, 
that  a  verdict  for  $6000  was  excessive  and 
ground  for  a  new  trial.  Langley  v.  Sixth 
Ave.  R.  Co.,  16  /.  6f  S.  (N.  Y.)  542,  mem.; 
affirmed  {?)  99  JV.  Y.  662,  mem, 

04.  $0500.  —  Plaintiff,  a  female, 

who  was  fifty-five  years  old,  was  thrown  to 
the  ground  on  leaving  a  car  and  injured  so 
that  she  could  not  use  her  right  arm»  Held, 
that  a  verdict  for  $6500  was  not  excessive. 
Vredenburgh  v.  New  York  C.  &>  H.  R.  R. 
Co.,  34  A^.  Y.  S.  R.  953,  58  Hun  607,  12  N. 
Y.  Supp.  18;  affirmed  in  134  A''.  Y.  597, 
mem.,  31  A^.  E.  Rep.  629,  mem. 

Plaintiff  was  tweniy-nine  years  old  when 
injured,  and  earning  $2.30  a  day  as  a  flag- 
man. He  lost  a  hand  and  found  it  difficult 
then  to  get  work  at  which  he  could  earn 
one  dollar  a  day.  Held,  that  a  verdict  of 
$6500  was  not  excessive.  Wooster  v.  litest- 
em  N.  Y.  &*  P.  R.  Co.,  40  A^.  Y.  S.  R.  844. 


NEW   TRIAL,  65,  60. 


8G3 


597. 


6l  Hun  023,  16  N.   Y.  Supp.  764 ;  n£flr»ied 
in  48  .\'.  Y.  S.  /7.  929. 

At  tlie  time  of  the  accident  plaintiff 
was  a  healthy,  vigorous  man,  forty-four 
years  of  age,  and  accustomed  to  hard  labor. 
Me  was  stunned  by  the  fall  and  his  eye  was 
injured.  Although  eighteen  months  had 
cK-pscd  at  the  time  of  the  trial,  he  had  not 
recovered,  and  there  was  evidence  to  the 
effect  that  ills  eye  was  permanently  injured, 
tiiat  he  would  ultimately  lose  it,  and  that 
this  might  affect  the  sight  of  liis  other  eye; 
that  three  of  his  vertebrae  were  out  of  line, 
and  that  this  injury  was  not  curable,  but  was 
likely  to  result  in  his  becoming  a  hunchback 
and  in  paralysis.  Tiiere  was  also  testimony 
to  the  effect  that  plaintiff  was  suffering  from 
a  slight  paralysis  of  the  lower  limbs.  J/M, 
that  a  verdict  for  $6500  was  not  excessive. 
Dallas  <3>»  G.  R.  Co.  v.  Able,  37  Am.  &^  Kiig. 
A\  Cas.  453,  72  Tex.  150,  9  S.  IV.  Kcp.  S71. 
See  also  Drain  v.  St.  Louis,  I.  M.  &•  S.  A'. 
Co.,  86  Mo.  574;  reversing  10  Mo.  App.  531. 

Where  the  injury  and  loss  to  plaintiff'  are 
merely  the  loss  of  a  thumb  and  forefinger 
of  his  right  hand,  and  the  consequent  suffer- 
ing and  inconvenience  from  such  loss  a 
nominal  sum  paid  for  medicines,  and  some 
loss  of  time  while  the  wound  was  being 
cured,  a  verdict  for  $8000  is  so  excessive  as 
to  show  passion  or  prejudice  on  the  part  of 
the  jury;  anH  even  where  plaintiff  remits 
$1500  and  takfs  a  judgment  for  $6500  the 
amount  is  still  so  grossly  excessive  that 
the  judgment  should  not  be  allowed  to 
stand.  Kansas  Pac.  R.  Co.  v.  Peavey,  34 
Kan.  472,  8  Pac.  Rep,  780. 

65.  $7000,— A  verdict  of  $7000  in 

favor  of  a  passenger  who  was  injured  is  not 
excessive  where  the  evidence  shows  that 
plaintiff  was  a  man  forty-six  years  old  and 
capable  of  earning  $100  per  month,  that  he 
incurred  expenses  of  $400  for  medical  treat- 
ment, and  that  he  was  so  injured  that  he 
was  rendered  incapable  of  performing  labor, 
and  still  suffered  severe  mental  and  physical 
pain.  Atchison,  T.  &-  S.  F.  R.  Co.  v.  Frier, 
(Tex.  Civ.  App.)  22  S.   IV.  Rep.  6. 

Plaintiff,  a  female  passenger,  fell  while 
leaving  defendant's  car  and  received  injuries 
which  resulted  in  the  shortening  of  one 
limb,  attended  with  great  pain, and  she  still 
remained  unable  to  attend  to  her  household 
duties  or  to  dress  herself  without  assistance  ; 
and  the  evidence  showed  that  she  would 
never  be  free  from  pain  nor  have  free  use 
of  her  limbs.    Held,  that  a  verdict  for  $7000 


was  not  excessive.  Fttr7i  v.  lifoadivay  (S>» 
S.  I.  R.  Co.,  26/.  &-  S.  575,  32  N.  Y.  S.  R. 
376,  10  A".  1'.  Supp.  225. 

Plaintiff  recovered  judgment  for  $7000 
for  injuries  to  his  right  knee  from  which  he 
wiis  still  suffering  at  the  time  of  the  trial, 
and  was  apparently  incapacitated  from 
following  his  vocation  of  carper.ter.  The 
evidence  was  conflicting  as  to  whether  the 
injury  would  prove  permanent  or  not.  The 
actual  damage  suffered  by  plaintiff  was 
Siooo  for  loss  of  time  and  $300  for  medical 
services  and  nursing.  Held,  that,  in  con- 
sideration on  the  one  side  of  the  possi- 
bility of  further  trouble  with  plaintiff's  knee, 
and  on  the  other  side  that  he  is  not  inca^ 
pacitated  from  performing  labor  in  many 
other  vocations  of  life  than  that  of  a  carpen- 
ter, a  judgment  of  $5000  would  be  ample 
compensation.  Cogswell  v.  West  St.  iS"*  A^ 
F..  Flee.  R.  Co.,  52  Am.  <S-  Eng.  R.  Cas.  500. 
5  ll'as/t.  46,  31  Pac.  Rep.  411. 

06.  $7600.- Before   plaintiff  was 

injured  he  was  a  robust  man  weighing  170 
pounds  and  capable  of  enduring  great  hard- 
ship. One  of  his  shoulders  was  bruised  and 
lamed,  besides  other  injuries,  and  he  had  not 
fully  recovered  at  the  time  of  the  trial,  more 
than  four  years  afterwards,  and  he  was  not 
able  to  labor  more  than  half  the  time,  and 
was  reduced  to  140  pounds.  Held,  that  a 
judgment  for  $750x3  will  not  be  set  aside  as 
excessive.  Hallack  v.  Johnson,  12  Colo.  244, 
20  Pac.  Rep.  700. 

A  verdict  of  $7500  in  favor  of  a  passenger 
on  a  street-car — ^d^/</,  not  excessive  when  his 
injuries  were  painful,  severe,  and  lasting ; 
when  he  was  confined  in  the  hosiiital  for 
three  months  under  treatment,  and  will 
always  be  lame,  with  one  leg  permanently 
shortened.  Vail  v.  Broadway  R.  Co.,  6 
Misc.  20,  26  A'.  Y.  Supp.  59,  58  N.  Y.  S.  R. 
124.— Disapproving  Morris  v.  Eighth  Ave. 
R.  Co.,  68  Hun  (N.  Y.)  39. 

Plaintiff  was  a  brakeman,  and  was  so  in- 
jured that  he  lost  his  entire  foot  except  the 
stub  of  the  heel.  Two  operations  were  nec- 
essary, and  at  the  time  of  the  trial,  nine 
months  after  the  injury,  his  foot  had  not 
entirely  healed,  and  his  leg  was  scarred  and 
shriveled  nearly  to  the  knee.  Held,  that  a 
verdict  for  $7500  would  not  be  set  aside  as 
excessive.  Texas  Pac.  R.  Co.  v.  Overheiser, 
76  Tex.  437,  13  S.  IV.  Rep.  468. 

A  verdict  of  $7500  in  favor  of  a  passenger 
for  a  personal  injury  will  not  be  set  aside  as 
excessive  where  two  physicians  testify  that 


864 


NEW  TRIAL,  67-71. 


l?i 


his  collar  bone  was  broken,  that  his  shoul- 
der was  badly  bruised,  that  certain  liga- 
ments of  the  joints  were  strained,  and  tiiat 
probably  his  injuries  were  permanent;  the 
plaintiff  himself  testifying  that  he  was  a 
carpenter  by  trade  and  was  so  injured  as  to 
have  to  give  up  the  business,  that  he  had 
suffered  a  great  deal,  had  lost  nine  months' 
time,  and  was  still  weak  from  the  injuries. 
Galveston,  H.  &*  S.  A.  li.  Co.  v.  Wesch,  ( Tex. 
Civ.  App.)  21  S.  IV.  Rep.  313;  affirmed  in 
21  S.  W.  Rep.  1014. 

07. $8000.— Plaintiff  was  a  cooper 

by  trade,  but  at  the  time  of  the  injury  was 
employed  as  a  teamster.  The  injury  re- 
sulted in  the  loss  of  a  hand.  There  was 
some  evidence  tending  to  show  that  he  was 
not  free  from  fault  himself ;  and  he  offered 
but  little  evidence  of  his  capacity  for  labor 
or  of  his  earnings,  and  none  as  to  the  extent 
of  his  suffering  or  as  to  whether  he  was  then 
in  good  health.  Held,  that  a  verdict  for 
$8000  was  excessive,  and  a  new  trial  would 
be  ordered  unless  he  stipulated  to  reduce 
the  damages  to  $6000.  Murray  v.  Hudson 
River  R.  Co.,  47  liarb.  {N.  Y.)  196  ;  affirmed 
ina,ZN.  Y.6ss,(>Alb.L.J.  19S.— Review- 
ing Collins  V,  Albany  &  S.  R.  Co.,  12  Barb. 
492;  Clapp  V.  Hudson  River  R.  Co.,  19 
Barb.  461  ;  Hegeman  v.  Western  R.  Corp., 
16  Barb.  353. 

In  the  case  of  a  personal  injury  caused  by 
gross  and  reckless  negligence,  in  its  nature 
culpable,  and  such  as  to  authorize  punitive 
damages,  when  plaintiff  in  consequence  of 
the  injury  lost  his  hand  and  was  thereby 
rendered  incapable  of  performing  on  a  mu- 
sical instrument  necessary  in  his  profession 
as  a  teacher  of  music,  and  compelled  to  em- 
ploy an  assistant,  and  to  submit  to  a  greatly 
reduced  income,  and  incurred  about  $1000 
debt  in  board,  physicians'  bills,  and  attend- 
ants, and  was  unable  to  attend  to  business  for 
about  six  months,  a  verdict  of  $8000  is  not 
excessive.  Chicago  &^  A.  R.  Co.  v.  Wilson, 
63  ///.  167. 

Plaintiff,  a  woman  thirty-five  years  old, 
earning  $30  a  month,  received  injuries  likely 
to  be  permanent,  which  considerably  affected 
her  general  health,  and  she  had  suffered 
pain.  Held,  that  a  verdict  for  $8000  should 
not  be  set  aside  as  excessive.  Harold  v. 
New  York  C.  &•  H.  R.  R.  Co.,  13  £>aly{N. 
y-)  378 ;  affirmed  in  108  N.  Y.  664,  mem., 
15  A'.  E.  Rep.  445,  13  A^.  Y.  S.  /i'.903.— Re- 
VIEWINO  Hegeman  v.  Western  R.  Corp.,  16 
Barb.  (N.  Y.)  359. 


Wlierc  a  girl  of  thirteen  receives  injuries 
which  result  in  curvature  of  the  spine,  and 
she  becomes  a  chronic  invalid,  a  verdict  for 
$8000  is  not  excessive.  Renuett  v.  Xe7u 
York  C.  (S-  //.  R.  R.  Co..  40  X.  Y.  S.  R.  948, 
16  A'.  Y.  Siipp.  JG^;  affirmed  in  133  .V'  1'. 
563,  num.,  30  A^  E.  Rep.  1149.  4J.  A^   Y.  S. 

R.  930- 

Damages  assessed  at  §Sooo  lor  an  injury 
which  rendered  a  healthy,  vigorous,  and 
strong  man  diseased,  feeble,  and  heli)less 
for  life  are  nc^t  excessive.  Cumniim^s  v. 
National  Eitrnace  Co.,  Go  Jl'is.  603,  18  .\'. 
IV.  Rep.  742,  20;V.  IV.  AV/i.  665.— yuoTlNO 
Scott  z/.  London  &  St.  K.  Docks  Co..  3  H.  & 

C.  596. 

08.  $8250.  —  Plaintiff,    a  farmer 

sixty-five  years  old,  was  so  injured  through 
defendant's  negligence  that  several  of  his 
ribs  were  broken  in  such  a  manner  that  they 
punctured  his  lung.  Six  months  afterwards 
he  could  not  raise  his  left  arm  above  his 
head,  and  he  injuries  seemed  to  be  perma- 
nent. Held,  that  a  verdict  of  $8250  could 
not  be  interfered  with  on  appeal  as  being 
excessive.  Reed  v.  Chicai^o,  St.  P.  J/.  &* 
O.  R.  Co.,  74  Iowa  188,  37  N.  IV.  Rep.  149. 

00.  $8525.— Where  the  evidence 

is  sufTi  lent  to  warrant  the  jury  in  finding 
that  plaintiff,  a  married  woman,  sustained 
an  injury  to  her  spine  of  a  very  serious 
nature,  from  which  she  was  still  suffering 
at  the  time  of  the  trial,  a  verdict  for  $8525 
will  not  be  set  aside  as  excessive.  Stouter 
V.  Manhattan  R.  Co.,  6  A^.  Y.  Sitpp.  163,  3 
Silv.  Sup.  Ct.  413,  25  A'.  Y.  S.  R.  683:  af- 
firmed in  127  N.  Y.  661,  3  Silv.  App.  472,  38 
A^.   Y.  S.  R.  162,  27  A^.  E.  Rep.  805. 

70. $8800 — Plaintiff  when  injured 

was  about  fifty-eight  years  of  age,  a  book- 
keeper, earning  about  $70  a  month.  After 
the  accident  he  was  unable  to  work,  suffered 
great  pain,  since  the  injury  was  steadily 
under  medical  treatment  for  an  incurable 
progressive  spinal  disease,  and  was  bedrid- 
den for  several  months  before  the  trial 
Held,  that  a  verdict  of  $8800  was  not  exces- 
sive. Cooper  v.  St.  Paul  City  R.  Co.,  58 
Am.  &^  Eug,  R.  Cas.  598,  54  Minn.  379,  56 
A^.  W.  Rep.i,2. 

71.  $9000.  —  Plaintiff  had   been 

employed  as  a  mason's  tender  at  $2  per  day 
when  he  was  able  to  secure  work.  His 
right  leg  was  crushed  so  as  to  require  am- 
putation near  the  ankle.  Held,  that  a  ver- 
dict of  $9000  was  excessive,  and  would  be 
set  aside  unless  reduced  to  $5000.  (O'Brien, 


NEW   TRIAL,  72. 


8r,3 


J.,  dissenting.)    Af orris  v.  Eighth  Ave.  R. 
Co.,  52  A'.  }'.  S.  A\  61,  22  A',   y.  Siipp.  666. 

A  boy  of  sixteen  who  was  earning  §8  a 
week  was  so  injured  wlule  a  passenger  as  tc 
be  able  to  earn  l)iit  very  Utile  thereafter. 
Held,  that  $gocx)  (hiniages  was  not  excess! vi'. 
Richmond  v.  Second  Ave.  R.  Co.,  27  A'.  )  . 
Su/>p.  7S0. 

Where  plaintilT  was  a  strong,  active  nian, 
engaged  in  the  management  of  a  large 
farm,  and  had  ills  leg  broken  in  two  places, 
from  whicii  lie  was  confined  to  his  bed  for 
three  mouths,  sulTcred  great  pain,  and  was 
permanently  injured,  one  leg  being  shorter 
than  the  other  and  the  Unec  stiff,  a  verdict 
for  S'jooo  will  not  be  set  aside  as  excessive. 
Grifith  V.  Missouri  Piic.  R.  Co.,  98  Mo.  16S, 
II  5.  IV.  Rep.  559. 

73. $  lO,00« A  verdict  of  $10,000 

damages  in  favor  of  one  severely  injured  by 
negligence  of  a  company,  when  plainiifl  was 
only  a  day  laborer,  and  not  wholly  disabled, 
and  the  negligence  was  not  reckless,  is  ex- 
cessive. But  a  remittitur  of  $6000  having 
been  entered,  and  judgment  entered  for 
S4000 — held,  that  this  was  not  so  excessive 
as  to  justify  a  reversal.  Illinois  C.  R.  Co.  v. 
Ebert,  74  ///.  399. 

In  an  action  for  injuries  to  the  person 
where  the  sole  permanent  disability  is  the 
loss  of  a  hand,  and  where  there  was  neither 
lengthened  sickness  nor  extraordinary  suf- 
fering, a  verdict  for  $10,000  is  excessive. 
Union  Pac.  R.  Co.  v.  MilUken,  8  Kan.  647,  5 
Am.  Ry.  Rep.  406.  See  also  Green  v.  South- 
ern Exp.  Co.,  41  Ga.  515.  Adams  v.  Mis- 
souri Pac.  A'.  Co.,  41  Am.  <5-  Eng.  R.  Cas. 
105,  100  Mo.  555,  12  S.  W.  Rep.  637,  13  S. 
IV.  Rep.  509.  Taylor  v.  Missouri  Pac,  R. 
Co.,  (Mo.)  16  S.  W.  Rep.  206. 

Where  the  jury  disregarded  the  charge 
and  found  for  the  defendant  in  error,  and 
assessed  the  damages  at  $10,000,  although 
the  deceased  had  been  guilty  of  very  gross 
negligence,  the  judgment  was  reversed,  the 
verdict  indicating  passion  or  prejudice. 
Nashville  &>  C.  R.  Co.  v.  Smith,  6  Heisk. 
(Tenn.)  174. 

Plaintiff,  a  man  seventy  years  old,  was 
knocked  down  by  a  street-car  and  injured. 
He  was  confined  to  his  bed  for  several 
months  from  injuries  consisting  of  some 
serious  impairment  of  the  bones  of  his  left 
hip,  causing  .  shortetiingof  his  leg  between 
one  and  two  inches  and  rendering  him  per- 
manently lame.  There  was  nothing  in  the 
case  to  allow  the  recovery  of  more  than 
6  D.  R.  D.-55 


compensatory  damages,  /feld,  that  a  ver- 
dict for  $10,000  was  excessive.  Chicago  II'. 
J).  R.  Co.  v.  Haviland,  12  ///.  A  pp.  561. 

Where  plaintilT's  attending  (ihysician  tes- 
tifies that  plaintiff's  injuries  are  severe  and 
oermanent,  that  he  is  a  physical  wreck,  anrl 
that  death  will  evidently  result,  a  verdict 
for  $10,000  is  not  excessive,  Dalsell  v.  Long 
Island  R.  Co..  25  A'.  1'.  S.  R.  166,  53  Ilun 
633.  mem.,  i  Silv.Sup.Cl.  582,6  A'.  1'.  Supp. 
167;  appeal  dismissed  in  119  A'.  V.  626, 
mem.,  2  Sih>.  App.  531,  23  A'.  E.  Rep.  487,  28 
N.  Y.  S.  R.  946. 

Plaintiff,  a  boy  seven  years  old,  received 
an  injury  necessitating  the  amputation  of 
his  leg  at  the  thigh.  Held,  that  a  verdict 
for  $10,000  was  i.ot  excessive.  Garoni  v, 
Compagnie  A'at.  de  A'avigation,  14  A'.  Y. 
Supp.  797,  39  A'.  Y.  S.  R.  63  ;  affirmed  ''n 
131  A'.  1'.  614,  mem.,  30  A'.  E.  Rep.  865.  Ft. 
Worth  iT-  D.  C.  R.  Co.  v.  Robertson,  (Te.v.) 
16  5.  \V.  Rep.  1093. 

It  is  the  province  of  the  jury  to  estimate 
the  damages  for  a  personal  injury  ;  and  where 
the  respondent  was  lamed  and  deformed  in 
one  leg  for  life  and  permanently  disabled  in 
one  shoulder,  so  that  he  was  rendered  un- 
able to  perform  manual  labor,  and  suffered 
unnecessarily  in  mind  and  body,  he  having 
been  neglected  for  more  than  two  days 
before  his  wounds  were  dressed,  a  verdict 
for  $10,000  damages  will  not  be  disturbed. 
Daniels  v.  Union  Pac.  R.  Co.,  6  Utah  357,  23 
Pac.  Rep.  762.  See  also  Foster  v.  Missouri 
Pac.  R.  Co.,  IIS  ^to.  165,  21  S.  IV.  Rep. 
016. 

There  were  three  verdicts — the  first  for 
$10,000,  the  second  for  $12,000,  and  the 
third  (or  $10,000.  Held,  that  the  appellate 
court  could  with  no  propriety  say  that  the 
latter  verdict  was  excessive.  Porter  v.  Han- 
nibal <&-  St.  J.  R.  Co.,  2  Am.  &*  Eng.  R.  Cas. 
44,  71  Mo.  66,  id  Am.  AV/.  454. — Rk.viewed 
IN  Dougherty  v.  Missouri  R.  Co.,  34  Am.  & 
Eng.  R.  Cas.  488  (see  also  37  Am.  &  Eng. 
R.  Cas.  206),  97  Mo.  647,  15  West.  Rep. 
235,  8  S.  W.  Rep.  900,  II  S.  W.  Rep.  251. 

Up  to  the  time  of  the  injury  plaintiff  had 
been  a  healthy  girl,  and  was  engaged  in 
business.  Her  injuries  were  incurable,  and 
she  was  deprived  of  the  power  of  making  a 
livelihood,  and  at  the  time  of  the  trial  was 
still  under  treatment  and  supported  by 
friends.  Held,  that  a  verdict  for  $io,ooa 
was  not  excessive.  Koetter  v.  Manhattan 
R.  Co.,  \iN.  Y.  Supp.  458,  59  Hun  623,  36 
N.  Y.  S.  R.dw,  affirmed  in  129  A^.  Y.  668, 


i 


86« 


NEW  TRIAL,  7a,  74. 


B?' 


1;  ^)■ 


^-SS^ 


I 


tnem,,  30  N.  E.  Kef).  65.— QirmiNO  Walker 
V.  Eiic  R.  Co.,  63  Harl).  (N.  V.)  260. 

The  iiijiiiics  to  plaititifl,  a  boy  ten  years 
old,  were  of  the  most  serious  cliaractcr,  in- 
cluflingtlie  loss  of  an  arm  and  other  painful 
and  permanent  injuries.  Hi'ld,\.\\\\\.  a  verdict 
for  810,000  was  n(Jt  so  excessive  as  to  justify 
a  new  trial.  Texas  <S-  /*.  A'.  Co.  v.  Garcia, 
21  Am.  &*  Eng.  K.  Cas.  384,  62  TV-.r.  285. 

PlaintKT  was  employed  at  the  time  of  his 
injury  in  operatinj;  machinery  owned  by 
defendant.  The  injury  entirely  deprived 
him  of  health  and  ability  to  labor  for  life. 
NM,  that  averdict  for  $10,000  was  not  ex- 
cessive. Columbia  &*  P.  S.  A'.  Co.  v.  Haw- 
thorne, 3  Wash.  T.  353.  19  Pac.  Rep.  25. 

Piiysicians  who  examined  plaintifl  a  short 
time  after  he  was  injured  testified  that  they 
thought  his  injuries  were  slight  and  that  he 
would  soon  recover.  Another  physician 
testified  tiiat  the  symptoms  indicated  spinal 
injuries;  that  in  jjlaintilT's  legs  there  was 
loss  both  of  moti(m  and  of  sensation  ;  that 
when  such  injuries  were  slight  they  resulted 
in  s|)ecdy  recovery,  and  the  fact  that  six 
months  had  passed  without  material  im- 
provement indicated  that  the  injuries  were 
serious  and  permanent,  and  liable  at  any 
time  to  terminate  in  paralysis.  Plaintifl 
testified  that  he  had  not  recovered  ;  that  he 
dragged  his  right  leg  in  walking,  could  not 
lie  on  his  right  side  or  back,  that  he  had 
lost  in  weight,  and  suffered  continually  from 
headaclie,  to  which  he  had  not  before  been 
subject.  Held,  that  the  testimony  of  the 
pliysicians  who  saw  plaintiff  only  a  short 
time  after  the  injury  was  not  necessarily  in 
conflict  with  the  evidence  of  plaintiff  and 
of  the  physician  who  saw  him  at  a  later  pe- 
riod, and  that  a  verdict  for  plaintiff  for 
$10,000  actual  damages  was  not  so  excessive 
as  to  authorize  a  reversal.  Missouri  Pac.  R, 
Co.  v.  Johnson,  37  Am.  &*  Etig.  R.  Cas.  128, 
72  Tex.  95,  10  S.  W.  Rep.  325. 

73.    $11,000. —The    injury    to 

plaintiff,  a  female,  consisted  in  breaking  the 
fibula  above  the  ankle,  which  confined  her 
to  the  house  for  two  months,  after  which 
siie  went  on  crutches.  The  injury  does  not 
affect  her  earning  capacity,  although  the 
ankle  will  be  weak  for  a  long  time,  and  per- 
haps always.  Held,  that  a  verdict  for  $11,- 
cxx)  is  excessive,  and  will  be  set  aside  unless 
reduced  to  $5000.  Branson  v.  Forty-second 
^t„  M.  &*  St.  N.  A.  R.  Co.,  50  A^.  Y.  S.  R. 
740,  67  Hun  649,  21  A^.  V.  Supp.  695. 

Plaintiff  was  injured  when  advanced  in 


yrars,  but  still  engaged  in  business.  His 
injurits  were  of  the  most  serious  character, 
entailing  confinement  to  the  house  and  bed 
for  a  long  period,  great  suffering  of  body 
and  anxiety  of  mind,  expensive  surgical 
treatment,  besides  ordinary  attendance  of 
physicians,  and  the  amputation  of  a  large 
portion  of  one  foot.  Heli/,  that  a  judgment 
for  $11,000  shoulfl  not  be  reversed  simply 
because  nlaintiff  was  advanced  in  years. 
Jordan  v.  Nenu  York  6-  //.  R.  Co..  16  /)<fly 
130,  9  A^.   )'.  S////i.  506,  30  A'.   Y.  S.  R.  670. 

74.  $12,000.— Where  a   party  is 

ejected  from  a  street-car  by  the  conductor, 
but  receives  no  injuries  that  prevent  Ills 
going  about  antl  working  as  usual,  and  there 
Is  no  permanent  injury  that  will  disable 
liim  from  earning  a  livelihood,  $i2,ooodam- 
ages  arc  rrrossly  excessive  Chicago  City 
R,  Co.  V.  Henry,  62  ///.  142,  6  Am.  Ry.  Rep. 

365- 

Twelve  thousand  dollars  damages  are 
excessive  for  the  loss  of  a  foot  where  the 
employe  injured  was  twenty  years  of  age 
and  earning  $60  a  month  Kroener  v.  Chi- 
cago, M.  &*  St.  P.  R.  Co.,  88  Io7va  16,  55  A^. 
W.  Rep.  28.— DiSTiNGUlSHiNc;  I'unston  v. 
Chicago,  R.  I,  &  P.  R.  Co.,  61  Iowa  452,  16 
N.  W.  Rep.  518.  Reviewing  Belalr  v.  Chi- 
cago &  N.  W.  R.  Co.,  43  Iowa  662  ;  Collins 
V.  Council  Bluffs,  32  Iowa  324. 

A  verdict  for  $12,000  for  injuries  causing 
death  is  excessive  where  the  deceased  was  a 
man  fifty-seven  years  of  age,  in  declining 
health,  suffering  from  partial  paralysis,  and 
had  very  limited  expectation  of  life,  and  little 
and  decreasing  capacity  for  labor,  and  where 
he  died  of  apoplexy  without  extraordinary 
mental  or  physical  suffering,  and  where 
there  is  no  evidence  of  wanton  or  grossly 
negligent  conduct  on  the  part  of  defendant, 
and  there  is  proof  of  contributory  negli- 
gence on  the  part  of  the  deceased.  Louis- 
ville &*  N.  R.  Co.  V.  Stacker,  86  Tenn.  343, 6 
Am.  St.  Rep.  840,  6  5.  W.  Rep.  737. 

A  verdict  for  $12,000  is  not  excessive 
where  It  is  shown  that  plaintiff  was  Injured 
by  the  overturning  of  a  car  in  which  he  was 
employed  as  a  postal  clerk,  that  he  was 
twenty-one  years  of  age  and  was  earning 
$1 150  a  year,  and  that  his  Injuries  were  very 
great.  Richmond  &*  D.  R.  Co.  v.  Allison, 
89  Ga.  567,  16  5.  E.  Rep.  116. 

A  vc-'NcL  for  $12,000  in  favor  of  an  infant 
for  -Jir  loss  of  a  leg  and  the  suffering  con- 
ne:t,;d  therewith  is  not  excessive.  Akers- 
loot  v.  Second  Ave.  R.  Co.,  27  /.  &-  S.  555, 


NEW   TRIAL,  76-77. 


867 


40  A'.  K.  5.  A".  231.  15  A'.  V.  Supp.  864; 
a  firmed  in  133  A'.  )'.  676,  num.,  31  N.  R, 
Rtp,  b2(->,  mem. 

I'laiiitifT  was  in  business  when  injured, 
and  rarniuK  81000  per  annum.  He  was 
confined  to  his  bed  for  six  weeks,  suffering 
({icat  p.iiii,  and  unable  to  attend  to  business 
for  several  months,  and  was  left  permanent- 
ly lame,  and  had  to  pay  from  $1200  to$i5oo 
for  physician's  fees  and  other  expenses. 
Held,  that  a  verdict  for  $12,000  was  not  ex- 
cessive. Rockrvellw  Third  Ave.  li.  Co.,  64 
/,'arfi.  (N.  y.)  438  ;  affirmed  in  53  A'.  Y,  625, 
mem. 

Plaintiflf  was  a  plumber  before  he  was 
injured.  Mis  left  thi^li  bone  was  badly 
fractured,  one  knee  joint  entirely  stiffened, 
and  he  was  coni])eIled  to  gf)  on  crutches, 
and  was  entirely  unfitted  for  following  his 
trarle  or  doing  any  other  manual  labor  which 
required  tlie  active  use  of  his  limbs.  He 
.still  suffered  great  pain,  which  could  only 
be  remedied  by  a  surgical  operation  result- 
ing in  great  risk  to  life.  Held,  that  a  ver- 
dict for  $12,000  would  not  be  set  aside  as 
excessive,  especially  where  a  former  jury 
had  returned  a  verdict  for  substantially  the 
same  amount.  Texas  Mex.  R.  Co.  v.  Doug- 
lass, 73  Tex.  325.  II  .V.   IV.  Rep.  333. 

An  employe  thirty-nine  years  of  age,  in 
good  health,  who  was  serving  as  fireman  on 
a  locomotive,  had  his  leg  and  foot  crushed, 
making  amputation  necessary,  and  causing 
great  and  protracted  suffering,  impairing 
his  general  health,  and  after  a  lapse  of  more 
than  two  years  the  injury  occasions  him 
consifierable  nervous  irritation  and  pain, 
which  will  probably  increase  and  continue 
during  his  lifetime,  is  by  the  jury  awarded 
damages  in  the  amount  of  $12,000.  Held, 
that  the  verdict  is  not  so  excessive  as  to 
leafl  to  a  conclusion  that  the  jury  were  ac- 
tuated by  passion,  prejudice,  or  improper 
influences,  nor  to  justify  the  appellate  court 
in  setting  the  verdict  aside.  Missouri  Pac. 
R.  Cg.  V.  Mackey,  22  Am.  &•  Eng.  R.  Cas. 
306,  33  Kan.  298,  6  Pac.  Rep.  291. 

75.  $12,500 — A  verdict  for  $12.- 

500  cannot  be  said  to  be  excessive  where  it 
is  in  favor  of  an  engineer,  twenty-three 
years  of  age,  in  good  health,  and  earning 
from  $500  to  $600  a  year,  who  was  so  in- 
jured by  the  negligence  of  his  company  as 
to  require  the  amputation  of  one  leg  above 
the  knee,  and  the  amputation  of  the  toes 
of  the  other  foot,  and  had  his  heel  split 
open,  his  hip  dislocated,  and  his  chest  in- 


jured. Kentucky  C.  R.  Co.  v.  Ryle,  (A>.)  18 
S.  ir.  Rep.  938. 

70.  1|14,000.— Plaintiff  was  under 

treatment  in  a  hospital  14$  days.  At  the 
time  of  the  trial,  twenty-one  numths  after 
the  accident,  dead  bone  was  still  working 
out  of  the  wound.  His  leg  was  partially 
stiffened,  and  was  shorter  than  the  other 
leg,  and  he  was  disabled  for  life.  It  had 
been  broken,  large  pieces  of  skin  were  torn 
from  the  flesh,  and  he  was  bruised  in  many 
places.  Held,  that  a  verdict  of  $14,000  was 
not  so  excessive  as  to  require  the  court  to 
set  it  aside.  Galveston,  H.  &*  S.  A.  R.  Co. 
V.  Porfert,  37  Am.  &*  Eng.  R.  Cas,  540,  72 
Tex.  344,  10  .V,  IV.  Rep.  207. 

77.  $15,000.-Plaintiff,a  practis- 
ing attorney,  before  the  accident  earned 
from  $1200  to  $1500  per  year.  His  injuries 
almost  totally  disabled  him,  and  after  the 
accident  he  could  earn  but  $200  or  $300  per 
year.  He  incurred  much  expense  and  suf- 
fered great  pain  in  consequence  of  his  in- 
juries. Held,  x.\\A\.  a  verdict  for  $15,000 
would  not  be  disturbed.  Pence  v.  Chicago, 
R.  I.  S-  P.  R.  Co.,  42  Am.  &*  Eng.  R.  Cas. 
1 26,  79  /oTva  389,  44  N.  W.  Rep.  686. 

Plaintiff  was  a  house  painter,  earning  $3 
per  day,  and  was  so  injured  as  to  render 
him  unable  to  stand  erect,  and  left  him 
physically  deformed  and  incapacitated  for 
labor  for  life.  Held,  that  a  verdict  for  $15,- 
000  was  not  excessive.  Schneider  v.  Second 
Ave.  R.  Co.,  15  A'.  Y.  Supp.  556,  39  A^.  Y. 
S.  R.  370,  27/.  &*  S.  536;  affirmed  in  133 
N.  Y.  583. 44  A^.  Y.  S.  R.  680,  30  A'.  E.  Rep. 

752- 

Plaintiff,  an  unmarried  woman  twenty- 
seven  years  of  age,  sustained  a  multiple 
fracture  of  the  lower  third  of  the  bones  of 
one  leg,  which  resulted  in  its  shortening 
and  a  stiffening  ofthe  ankle.  The  injuries 
were  severe  and  permanent,  and  she  would 
continue  to  suffer  great  pain,  and  paid  out 
$1000  for  medical  attendance.  Held,  that  a 
verdict  for  $15,000  would  not  be  set  aside 
as  excessive.  Mitchell  v.  Broadway  &*  S. 
A.  R.  Co.,  54  A^.  Y.  S.  R.  1 16,  70  Hun  387, 
24  A^.  Y.  Supp.  32. 

A  man  forty-two  years  of  age,  whose 
business  yields  him  a  profit  of  $3000  or 
$4000  a  year,  who  is  so  injured  by  the  neg- 
ligence of  a  railroad  company  as  to  lose  his 
right  leg  at  the  knee,  to  suffer  a  fracture  of 
three  ribs  (causing  pleurisy),  and  a  fracture 
of  the  right  arm  (causing  permanent  in- 
jury)   may  properly  receive  compensation 


868 


NEW  TRIAL,  78-82. 


:  / 


^'1' 


;)u . , 


hi  ;-:i 


from  the  defendant  in  the  sum  of  $15,000. 
Specht  V.  Pennsylvania  R.  Co.,  19  P/til^. 
(Pa.)  365. 

A  verdict  of  $15,000  in  favor  of  an  engi- 
neer, thirty-four  years  old,  in  good  health, 
endowed  with  a  vigorous  constitution,  and 
earning  from  $165  to  $195  per  month,  is  not 
excessive  wlien  the  effect  of  the  injury  has 
been  to  incapacitate  him  for  any  useful  or 
profitable  labor,  and  to  deprive  him  of  the 
sense  of  hearing.  Texas  Pac.  J\.  Co.  v. 
Johnson,  42  Am.  &*  Eng.  R.  Cas.  7,  76  Tex. 
421,  13  5.   IV.  Rep.  463. 

78.  $18,000 A  verdict  for  $18,- 

000  in  favor  of  a  man  so  injured  in  the  prime 
of  life  as  to  require  amputation  of  one  leg 
and  the  loss  of  the  use  of  an  arm  is  not  ex- 
cessive. Murray  v.  Brooklyn  City  R.  Co.,  27 
N.  Y.  S.  R.  280,  7  N.  Y.  Supp.  900.— At- 
PLYING  Ransom  v.  New  York  &  E.  R.  Co., 
15  N.  Y.  415;  Alberti  v.  New  York,  L.  E.  & 
W.  R.  Co..  43  Hun  421  i  Dyke  v.  Erie  R. 
Co.,  45  N.  Y.  113;  Hickinboitom  v.  Dela- 
ware. L.  &  W.  R.  Co..  15  N.  Y.  S.  R.  II ; 
Voss  V.  Third   Ave,  R.  Co.,  17  J.  &  S.  535. 

79.  $25,000.  —  The    injuries    to 

plaintiff  w^re  of  a  serious  and  permanent 
character,  rendering  him  a  cripple  for  life ; 
he  suffered  great  pain  and  anguish,  and  was 
involved  in  a  large  expenditure  of  money, 
but  the  evidence  failed  to  disclose  any  wan- 
tonness or  wilfulness  on  the  part  of  defend- 
ants. Held,  that  a  verdict  for  $25,000  was 
grossly  excessive.  Chicago  &*  N.  W.  R. 
Co.  v.  Fillmore,  57  ///.  265, 10  Am.  Ry.  Rep. 
462. 

When  a  child  eiglit  years  old,  injured  in 
a  railroad  accident,  is  completely  crippled 
and  rendered  helpless,  both  his  eyes  burned 
out,  both  ears  burned  off,  and  his  hands 
burned  almost  to  a  crisp,  a  verdict  for  $25,- 
000  damages  is  not  excessive.  Dunn  v. 
Burlington,  C.  R.  &*  N.  R.  Co.,  35  Minn.  73, 
27  N.  IV.  Rep.  448.  See  also  Halt  v.  Chi- 
cago,  B.  <S-  N.  R.  Co.,  46  Minn.  439,  49  A^ 
IV.  Rep.  239. 

A  verdict  for  $25,000  in  favor  of  a  child, 
a  boy  three  and  a  half  years  old,  for  the  loss 
of  his  leg  is  not  excessive.  Ehrman  v. 
Brooklyn  City  R.  Co.,  38  A':  K.  S.  R.  990,  60 
Htn  580,  14  A'.  Y.  Supp.  336 ;  affirmed  in 
III  N.  Y.  576,  mem.,  42  A'.  Y.  S.  R  948.  30 
A'.  E.  Rep.  67. 

80.  $26,000.  —  Though  there  be 

gross  negligence  in  injuring  a  passenger,  yet 
a  verdict  of  $26,000  is  excessive  where  the 
evidepcu  does  not  show  that  his   injuries 


are  of  a  permanent  nature  Louisville  &* 
A'.  R.  Co  V  Long.  (Ky.)  22  S.  IV.  Rep.  747. 

81.   $30,000 The    evidence    of 

medical  experts  being  conflicting  as  to  the 
extent  and  permanency  of  plaintiff's  injury, 
and  there  being  evidence  to  show  that  it 
was  less  serious  than  plaintiff  contended,  a 
verdict  for  $30,000  is  excessive.  Fisher  v. 
Southern  Pac.  R.  Co.,  89  Cal.  399,  26  Pac. 
Rep.  894. 

Plaintiff,  a  strong,  well  man  forty  years 
old.  received  a  concussion  of  the  spine, 
causing  clironic  inflammation  of  the  mem- 
branes enveloping  the  spinal  cord,  besides 
other  injuries  ,  his  faculties  had  already  be- 
come impaired,  and  paralysis  and  prema- 
ture death  would  probably  result.  Held, 
that  a  verdict  for  $30,000  was  not  excessive. 
Harrold  v.  New  York  El.  R.  Co.,  24  Hun 
{N.  K)  184.— Not  FOLLOWED  IN  Furnish  z/. 
Missouri  Pac.  R.  Co.,  :o2  Mo.  438, 

c.  Remittitur  of  the  Excess. 

82.  Powerof  court  to  allow  or  or- 
der a  release  of  excessive  damages.* 

— A  verdict  for  excessive  damages  may  be 
cured  by  release  of  tJie  excess  in  actions  for 
torts  as  well  as  in  actions  on  contracts. 
Little  Rock  (S-  Ft.  S.  R.  Co.  v.  Barker,  19 
Am.  <S»  Eng.  R,  Cas.  195,  39  Ark.  491. — 
Quoting  Collins  v.  Albany  &  S.  R.  Co.,  12 
Barb.  (N.  Y.)  492  ;  Clapp  v.  Hudson  River 
R.  Co.,  19  Barb.  461.  Reviewing  Rose  v. 
Des  Moines  Valley  R.  Co..  39  Iowa  246 ; 
Thompson  v.  Butler.  95  U.  S.  694. — Lim- 
ited in  St.  Louis.  L  M.&S.  R.  Co.  W.Hall.  42 
Am.  &  Eng.  R.  Cas.  208.  53  Ark.  7. — Collins 
V.  Albany  6-  .S".  R.  Co.,  12  Barb.  (N.  Y.)  492. 
—Disapproved  in  Nudd  v.  Wells.  11  Wis. 
407.  Quoted  in  Little  Rock  &  Ft.  S.  R. 
Co.  V.  Barker.  39  Ark.  \^\.—Gulf,  C.  (S>»  S. 
F.  R.  Co.  V.  Redeker,  41  Am.  <S>»  Eng.R.  Cas. 
296.  75  Tex.  310.  12  S.  IV.  Rep.  855.— Re- 
viewing Gulf,  C.  &  S.  F.  R.  Co,  V.  Coon, 
69  Tex.  710.— Houston  &*  T.  C.  R.  Co.  v. 
Maddox,  21  Am.  &*  Eng.  R.  Cas.  625, 2  Tex. 
Unrep.  Cas.  312. 

While  the  court  has  no  right  to  substitute 
its  own  estimate  of  the  damages  for  that  of 
the  jury,  yet  it  has  the  right  to  determine 
the  amount  beyond  which  there  is  no  evi- 
dence, upon  any  reasonable  view  of  the 
case,  to  support  the  verdict,  and  to  order  a 
new  trial  unless  plaintiff  will  consent  to  re- 

*  Reducing  verdict  for  tort  by  remittitur,  see 
note,  \<)  Am.  &  Eng.  R.  Cas.  313. 


lisville  &* 

Rep.  747. 

idence    of 

as  to  the 

ff's  injury, 

)w  that  It 

itended,  a 

Fisher  v. 

9,  26  Pac. 

orty  years 
the  spine, 
the  meni- 
■d,  besides 
ilready  be- 
nd preina- 
ilt.  Held, 
;  excessive. 
o. ,  24  Hun 
Furnish  v. 
8. 

:ss. 

»w  or  or- 
aiiiages.* 

(es  may  be 
actions  for 
contracts. 
Barker,  19 
Irk.  491. — 
.  R.  Co..  12 
dson  River 
NG  Rose  V, 
Iowa  246 ; 
694.— LlM- 
y.v.  Hall,  42 
7. — Collins 
N.  K)492. 
lis,  II  Wis. 
k  Ft.  S.  R. 
!f,  C.  &-  S. 
Eng.K.  Cas. 
:  855.— Re- 
3.  V.  Coon, 
.  Ji.  Co.  V. 
625,2  Tex. 

o  substitute 
;  for  that  of 
>  determine 
;  is  no  evi- 
'iew  of  the 
to  order  a 
nsent  to  re- 

;mittitur,  see 


■  i'  1,1 


NEW  TRIAL,  83. 


ducf  *^ «!  verdict  to  such  amount.  Hutchins 
V.  St.  Paul,  M.  (S-  M.  R.  Co.,  44  Minn.  5,46 
N.  W.  Rep.  79.  Gregg  v.  San  Francisco  &^ 
N.  P.  R.  Co.,  59  Cal.  312.  Davis  v.  Southern 
Pac.  A*.  Co.,  98  Cal.  13,  32  Pac.  Rep.  646. 
Sinclair  v.  Washington  <S>*  G.  R.  Co.,  Mac- 
Art  h.  (S-  M  {D.  C.)  13.  Belknap  v.  Boston 
&^  M.  R.  Co.,  49  N.  H.  358.  Pendleton  St. 
R.  Co.  V.  Rahinann,  22  0/«t;  St.  446. 

Where  it  appears  that  the  verdict  is  too 
large,  by  reason  of  error  of  the  court  in  its 
rulings,  or  of  the  jury,  and  there  is  nothing 
necessarily  implying  passion  or  prejudice  in 
the  jury,  the  court  may,  where  it  can  be 
done,  ascertain  from  the  evidence  the 
amount  of  such  excess,  and  may,  on  a  re- 
mittitui  of  the  same  being  entered,  affirm 
the  judgment  as  modified.  Cleveland  <S>» 
Jif.  R.  Co.  V.  Himrod  Furnace  Co.,  37  Ohio 
St.  434. 

The  rule  that  a  remittitur  of  part  of 
the  damages  assessed  by  a  jury  will  not 
be  allowed  must  be  confined  to  cases  in 
which  the  amount  of  an  excessive  verdict 
evinces  a  disregard  of  the  evidence  by  the 
jury  and  shows  that  prejudice  influenced 
their  verdict ;  to  allow  a  remittitur  in  such 
cases  would  be  to  permit  the  court  to  usurp 
the  province  of  the  jury.  But  when  in  view 
of  all  the  evidence  the  verd'"'  for  damages 
is  clearly  warranted  by  the  evidence,  and 
the  plaintiff  remits  a  portion  of  it,  judgment 
may  properly  be  rendered  for  the  remainder. 
International  <S>»  G.  N.  R.  Co.  v.  Wilkes,  34 
Am.  €^  Eng.  R.  Cas.  331,  68  Tex.  617,  5  S. 
W.  R-p.  491. — Following  Texas  Cotton 
Press  Co.  v.  Crowley,  Gal.  Term  1886  (un- 
reported). Reviewing  Lake  Erie  &  W.  R. 
Co.  V.  Fix,  1 1  Am.  &  Eng.  R.  Cas.  icp.  88  Ind. 
381;  International  &  G.  N.  R.  Co,  v.  Gilbert, 
64  Tox.  536;  International  &  G.  N.  R.  Co. 
V.  Smith,  Tyler  Term  1886;  Thomas  v. 
'iVomack,  13  Tex.  580 ;  Hardeman  v.  Morgan, 
48  Tex.  103  ;  Hughes  v.  Brooks,  36  Tex.  379 ; 
Heidenheimer  v.  Schlett,  63  Tex.  395 ; 
Hoskins  v.  Huling,  4  Tex.  Law  Rev.  183. 

But  the  court  should  not  require  plaintiff 
to  remit  a  portion  of  damages,  and  at  the 
same  time  deprive  defendant  of  the  benefit 
of  the  refluction  unless  he  shall  submit  to 
onerous  terms  ;  as  by  directing  judgment,  to 
be  entered  for  plaintiff  for  the  wliole  amount 
of  the  verdict  upon  his  filing  a  stipulation 
that  if  defendant  shall,  vvitliin  sixty  days, 
pay  him  a  certain  smaller  sum,  witli  the 
costs,  lie  will  enter  a  full  satisfaction  of 
the  judgment.     Schnltz  v.   Chicago,  M.  &^ 


St.  P.  R.   Co.,  48  Wis.  375,  4  N.  W.  Rep. 

399- 

A  jury  stated  the  items  of  damages  which 
they  found  for  plaintiff,  and  the  finding 
on  one  of  those  items  was  iir.proper.  Held, 
that  the  error  did  not  vitiate  the  entire  ver- 
dict, but  tliat  a  remittitur  should  be  per- 
mitted for  the  amount  of  the  objectionable 
item.  Hartman  v.  Louisville  <&>•  7V^.  A'.  Co., 
48  Mo.  App.  619. 

In  a  suit  against  a  railroad  for  personal 
injuries  plaiiitiff  had  a  verdict  for  $25,000. 
The  court  overruled  a  motion  to  set  it  aside 
as  excessive  on  condition  that  plaintiff  re- 
lease $15,000  of  the  amount.  Held,  lo  be 
within  the  discretion  of  the  court.  North- 
ern Pac.  R.  Co.  V.  Herbert,  24  Atn.  6f  Eng. 
R.  Cas.  407,  116  U.  S.  642,  6  Sup.  Ct.  Rep. 
590. 

83.  The  power  denied.— In  an  ac- 
tion wherein  the  damages  are  incapable  of 
measurement  by  an  exact  money  standard, 
such  as  actions  for  personal  injuries,  the 
defendant's  right  to  object  to  the  verdict  as 
excessive  cannot  be  obviated  by  a  remittitur 
by  the  plaintiff  of  a  part  of  the  damages  as- 
sessed. Zurfluh  V.  People's  R.  Co.,  46  Mo. 
App.  636. — Reviewing  Gurley  v.  Missouri 
Pac.  R.  Co.,  104  Mo.  211,  16  S.  W.  Rep.  11, 

The  judge  cannot  thus  invade  the  prov- 
ince of  a  jury  by  measuring  the  damages 
for  which  they  should  have  returned  a  ver- 
dict. Gulf,  C.  Gf  S.  F.  R.  Co.  V.  Coon,  69 
Tex.  7JO,  7  6"".  W.  Rep.  492.— REVIEWED  IN 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Redeker,  41  Am. 
&  Eng.  R.  Cas.  296,  75  Tex.  310. 

Where  the  court  regards  the  amount  of 
damages  as  excessive,  it  may  grant  a  new 
trial  unless  plaintiff  reduces  the  amount  as 
specified ;  but  it  is  error  to  overrule  the 
motion  for  a  new  trial  unless  the  defendant 
will  agree  to  accept  the  reduced  amount 
and  not  appeal.  The  court  lias  no  right 
thus  to  force  a  compromise.  Nashville,  C. 
&*  St.  L.  .V.  Co.  v.  Foster,  1 1  Am.  &-  Eng.  R. 
Cas.  180,  10  Lea  (Tenn.)  351. — CRITICISED 
IN  Tennessee  C.  &  R.Co.  v.  Roddy,  31  Am. 
&  Eng,  R.  Cas.  340,  85  Tenn.  400,  5  S.  W. 
Rep.  286. 

In  an  action  for  negligence,  unless  it  ap- 
pears that  the  verdict  was  the  result  of 
passion  or  prejudice,  or  reached  by  an  utter 
disregard  of  the  principles  of  law  as  laid 
down  by  the  trial  judge,  the  courts  will  not 
interfere  to  reduce  the  damages  given. 
I 'ail  V.  liroadway  R.  Co.,  6  Misc.  20,  26  A'. 
V.  Supp.  59,  58  .\'.   Y.  S.  R.  124. 


870 


NEW   TRIAL,  84-86. 


I  i 


Where  the  verdict  of  a  jury  is  so  erro- 
neous as  clearly  to  indicate  prejudice,  par- 
tiality, passion,  or  corruption  in  arriving  at 
their  conclusions,  defendant  is  entitled  to  a 
new  trial,  and  it  is  error  to  allow  plaintiff  to 
elect  to  take  a  less  sum  suggested  by  the 
court  when  there  are  no  data  before  the 
court  by  which  said  smaller  sum  can  be 
rightly  and  definitely  ascertained,  but  which 
is  fixed  by  the  discretion  of  the  court  un- 
aided by  evidence.  Unfriedv.  Baltimore 
(S-  O.  A'.  Co.,  34  IV.  Va.  260,  12  S.  E.  Rep. 
512.— Following  Nudd  v.  Wells,  11  Wis. 

415- 

A  wife  sued  a  company  to  recover  for 
personal  injuries  which  subsequently  re- 
sulted in  the  death  of  her  husband,  and  ob- 
tained a  verdict  of  $4000.  The  court  re- 
garded this  as  excessive,  and  required  her 
to  take  judgment  for  $2500,  otherwise  a  new 
trial  would  be  granted.  Held,  error  as  to 
both  parties.  If  the  company  was  enti- 
tled to  a  new  trial,  it  should  have  been 
granted  v^iithout  imposing  any  terms ;  if  not, 
plaintiff  should  have  had  judgment  for  the 
full  amount  of  the  verdict.  Louisville  Qf^N. 
R.  Co.  v.  Earl.  94  Ky.  368,  22  S.  W.  Rep. 
607. 

Verdict  for  $7500  for  personal  injuries. 
On  appeal  the  judgment  below  was  reversed 
on  the  ground  of  the  improper  admission  of 
the  opinion  of  plaintiff  as  to  his  expenses 
being  $750  or  $800.  On  motion  for  rehear- 
ing in  the  court  of  civil  appeals,  the  appellee 
offered  to  remit  $800,  and  asked  judgment 
for  the  balance.  Held,  that  as  the  testimony 
to  the  amount  of  expenses  occasioned  by  the 
injuries  may  have  impressed  the  jury  as  to 
the  extent  of  the  injuries,  and  thus  have  in- 
creased the  general  verdict,  such  remittitur 
could  not  be  allowed  to  cure  the  error  of 
admitting  the  illegal  testimony.  Galveston, 
H.  &•  S.  A.R.  Co.  V.  Wesch,  85  Tex.  593,  22 
S.  IV.  Rep.  957. 

84.  Effect  of  remission  of  the  ex- 
cess.— After  a  motion  is  made  for  a  new 
trial  on  the  ground  that  the  damages 
awarded  are  excessive,  the  plaintiff  may  re- 
lease enough  of  the  damages  to  bring  them 
within  the  evidence,  and  it  is  proper  then  to 
refuse  a  new  trial.  (Jackson,  C.J. ,  dissent- 
ing.) Central  R.  Co.  v.  Crosby,  74  Ga.  737. 
—  Distinguishing  Savannah,  F.  &  W.  R. 
Co.  V.  Harper,  70  Ga.  119. —  Union  Rolling 
Mill  Co.  V.  Gillen,  100  ///.  52.  Williams  v. 
Baltimore  &•  O.  R.  Co.,  9  IV.  Va.  33. 

Where  the  circuit  court,  deeming  a  verdict 


excessive,  announces  that  it  will  set  it  aside 
and  award  a  new  trial  unless  a  remittitur  is 
entered,  whereupon  plaintifl  remits,  but  ex- 
cepts to  the  action  of  the  court  as  coercive, 
he  is  concluded  by  his  election,  and  cannot 
assign  the  action  of  the  court  for  error. 
Alabama  (S^  V.  R.  Co.  v.  Davis,  69  Miss. 
444,  13  So.  Rep.  693. 

Where  a  remittitur  is  filed,  it  is  only  an 
admission  that  the  verdict  was  excessive  in 
the  amount  remitted.  Union  Pac.  R.  Co.  v. 
Byrne,  2  Wyom.  109. 

85.  New  trial  granted  on  appeal 
notwithstanding  reinittitnr.—  Where 
the  court  grants  a  railroad  company  a  new 
trial  unless  plaintiff  will  write  off  a  portion 
of  the  verdict,  and  in  the  judgment  of  the 
supreme  court  the  grant  of  the  new  trial 
ought  to  have  been  unconditional,  plaintiff 
cannot  complain  that  the  verdict  was  re- 
duced by  the  court.  The  unconditional 
grant  of  the  new  trial  by  the  supreme  court 
of  course  operates  to  set  aside  the  entire 
verdict,  and  all  modifications  thereof.  Cen^ 
tral  R.  Co.  v.  Moore,  61  Ga.  151. 

Where  a  verdict  for  plaintiff  in  an  action 
of  tort  has  been  declared  by  the  trial  judge 
so  excessive  in  amount  as  to  indicate  pas- 
sion or  prejudice  on  the  part  of  the  jury, 
and  the  supreme  court  concurs  in  that  opin- 
ion, a  new  trial  will  be  granted  by  the  su- 
preme court,  notwithstanding  the  trial  judge 
refused  it  upon  remittitur  of  the  excess, 
where  the  plaintiff  entered  the  remittitur  at 
the  court's  suggestion,  but  did  so  under  pro- 
test, reserving  exception.  Massadillo  v. 
Nashville  &>  K.  R.  Co.,  46  Avt.  <S^  Eng.  R. 
Cas.  666,89  ^''««-  661,  15  .S".    IV.  Rep.  445. 

A  remittitur  "  under  protest"  should  not 
be  received  by  the  court,  and  will  be  re- 
jected, if  entered,  in  the  consideration  of 
the  motion  for  new  trial.  Massadillo  v. 
Nashville  &»  K.  R.  Co,  46  Am.  &•  Eng.  R. 
Cas.  666,  89  Tenn.  661,  15  5.   H^.  Rep.  445. 

8G.  Vnrions  applications  of  tlie> 
rule. — A  verdict  for  810,000  in  favor  of  a 
stout,  healthy  woman  for  a  broken  limb,  a 
dislocated  arm,  and  back,  shoulder,  and  side 
so  injured  that  she  had  not  fully  recovered 
two  years  afterwards,  was  reduced,  when 
presented  by  intervention  as  a  claim  against 
the  receiver  of  the  company,  to  $5000. 
Missouri  Pac.  R.  Co.  v.  Te.vas  Pac.  R.  Co., 
42  Am.  <5^  Eng.  R.  Cas.  34,  41  Eed.  Rep.  311. 

Where  a  passenger,  seeking  to  enter  a 
car  reserved  for  ladies,  was  ejected  with 
violence,  whereby  he  suffered  severe  bodily 


set  it  aside 
mittitur  is 
its,  but  ex- 
s  coercive, 
nd  cannot 
for  error, 
f,  69  Miss. 

is  only  an 
xcessive  in 
c.  K.  Co.  V. 

II  appeal 

•.—  Where 
lany  a  new 

a  portion 
ent  of  the 

new  trial 
al,  plaintiff 
ct  was  re- 
:onditional 
erne  court 
the  entire 
reof.     Cen- 

I  an  action 
trial  judge 
licate  pas- 
[  the  jury, 

that  opin- 
by  the  su- 
trial  judge 
he  excess, 
mittitur  at 
under  pro- 
%sadillo  V. 
f*  Eng.  R. 
'iep.  445. 
should  not 
k'ill  be  re- 
eration  of 
xssadillo  v. 
r*  £»g.  /v'. 
\'ep.  445. 
i  of  tlitv 
favor  of  a 
en  limb,  a 
r,  and  side 

recovered 
ced,  when 
im  against 

to  $5000. 
tc.  A'.  Co., 
'.  Rep.  311. 
to  enter  a 
cted  with 
•ere  bodily 


NEW  TRIAL,  87,  88. 


871 


injuries  and  recovered  a  judgment  against 
the  company  for  $12,000— //<?/</,  that  the 
amount  should  be  reduced  to  $7000.  Mc- 
Kinley  v.  Chicago  <&>•  A".  W.  R.  Co.,  44  Iowa 

3'4. 

If  the  actual  value  of  the  animals  killed  is 
fixed  by  the  witnesses  at  sums  varying  from 
$500  to  $650,  a  verdict  for  $7 50  is  not  cured 
by  a  remittitur  of  $100,  where  the  jury  were 
erroneously  instructed  that  they  might 
allow  exemplary  damages,  but  the  judgment 
will  be  affirmed  on  remitting  in  the  supreme 
court  all  in  excess  of  $500.  Chicago,  St.  L. 
<&*  A^.  O.  R.  Co.  V.  Jarrett.  1 1  Am.  <S>»  Eng. 
R.  Cas.  455,  59  Miss.  470. 

In  an  action  for  injuries  to  land,  trees, 
grass,  and  live  stock,  resulting  from  an 
overflow  caused  by  the  negligent  manner  in 
which  the  track  was  constructed,  plaintiff 
received  a  judgment  for  $721 .30.  This  find- 
ing was  supported  by  the  evidence  except  as 
to  the  sum  of  $62.60.  Held,  that  the  judg- 
ment should  stand  upon  the  plaintiff's  en- 
tering, within  ten  days,  a  remittitur  of  the 
$62.60.  Sabine  &•  E.  T.  R.  Co.  v.  Johnson, 
{Tex.)  7  S.  W.  Rep.  yjZ;  former  appeal,  65 
Tex.  389. 

In  an  action  for  negligently  carrying 
plaintiff,  defendants  withdrew  their  plea  of 
not  guilty,  and  the  jury,  after  plaintiff's  evi- 
dence, assessed  damages  at  ;^6i78.  Upon 
motion  for  a  new  trial  for  excessive  dam- 
ages, the  court,  on  the  ground  that  it  did 
not  appear  that  the  jury  had  exercised  a 
sound  and  reasonable  discretion,  made  the 
rule  absolute  upon  payment  of  costs,  and 
upon  payment  of  ;£5oo  into  court,  with  leave 
to  plaintiff  to  accept  it  without  prejudice, 
etc.  Baichelor  v.  Buffalo  <&«•  B.  R.  Co.,  5  [/. 
C.  C.  P.  470- 

5.  Inadequate  Damages. 

87.  New  trial,  when  granted.— A 

verdict  in  plaintiff's  favor,  clearly  inade- 
quate, under  the  evidence,  as  respects  the 
amount  of  damages,  may  be  set  aside  on 
that  ground.  Henderson  v.  St.  Paul  &*  D. 
R.  Co..  52  Minn.  479.  55  ^^'-  ^V.  Rep.  53. 

Where  a  statute  fi.xes  the  amount  of  dam- 
ages for  wrongfully  causing  death,  and  the 
jury  is  properly  instructed  as  to  the  law,  a 
verdict  for  a  little  more  than  half  the 
amount  should  be  set  aside.  Rafferty  v. 
Missouri  Pac.  R.  Co.,  15  J/o.  App.  559. 

A  plaintiff  suing  for  personal  injuries  who 
is  not  entitled  to  recover  at  all  has  no  right 


to  have  a  verdict  in  his  favor  set  aside  on 
the  ground  of  inadequacy.  O'Malley  v. 
Chicago  City  R.  Co.,  30  ///.  App.  309.— FOL- 
LOWING Garland  v.  Chicago  &  N.  W.  R.  Co., 
8  111.  App.  571  i  Hubbard  f.  Mason  City,  64 
Iowa  245. 

In  an  action  for  a  personal  injury  a  new 
trial  will  be  granted  to  the  plaintiff  if  it  ap- 
pears that  the  damages  are  so  inadequate 
that  tlie  jury  must  have  failed  10  consider 
some  of  the  proper  elements  of  damage. 
Phillips  v.  London  &*  S.  w^.  A*.  Co.,  L.  R.  4 
Q.  B.  D.  406,  48  L.  J.  Q.  B.  D.  693,  40  L.  T. 
813,  ^7  W.  R.  797  ;  affirmed  in  L.  R.  5  Q.  B. 
D.  78,  41  L.  T.  121,  28  W.  R.  10. 

To  justify  interference  with  a  verdict 
awarding  damages  for  personal  injuries  on 
the  ground  that  such  damages  are  inade- 
quate, it  must  appear  that  they  are  so  gross- 
ly disproportionate  to  the  injuries  that  in 
awarding  them  the  jury  must  liave  been  in- 
fluenced by  a  perverted  judgment.  Mc- 
Dermott  v.  Chicago  6^  N.  14^.  R.  Co.,  8s  ^"• 
102, 55  N.  IV.  Rep.  179.— Following  Robin- 
son V.  Waupaca,  77  Wis.  544. 

88.  Illii8tration.s.— Plaintiff,  a  female, 
was  injured  when  she  was  twenty  years  old, 
in  good  health,  and  dependent  upon  her 
own  labor,  and  earning  $4  a  week.  Sue  in- 
curred expenses  on  account  of  the  injury 
amounting  to  $3000;  the  evidence  showed 
that  she  had  suffered  great  pain  from  the 
time  of  the  injury  to  the  time  of  the  trial, 
three  years  afterwards,  and  was  yet  so  weak 
as  to  be  unable  to  sit  up  in  bed,  and  that  her 
injuries  were  permanent.  Held,  that  a  ver- 
dict for  $1000  should  be  set  aside  as  inade- 
quate. Smith  V.  Dittman,  \  i  N.  V.  Supp, 
769,  34  A'.   Y.  S.  R.  303,  16  Daly  427. 

Plaintiff,  an  abutting  owner,  sued  an  ele- 
vated railroad  for  damages  to  liis  property, 
and  proved  by  competent  witnesses,  who 
were  uncontradicted,  that  his  light  had 
been  greatly  interfered  with,  and  that  he  had 
suffered  an  actual  loss  of  rents.  Held,  that 
a  verdict  for  six  cents  damages  should  be 
set  aside  as  inadequate.  Jones  v.  Metro- 
politan El.  R.  Co.,  27  J.  <S-  S.  437,  14  .V.  y. 
Supp.  632,  39  A'.   y.S.R.  177. 

Plaintiff  sued  for  personal  injuries,  and 
proved  by  uncontradicted  evidence  that  he 
was  so  injured  that  he  remained  insensible 
for  a  day,  and  could  not  move  his  feet  for 
ten  or  twelve  days,  and  was  disabled  for 
nearly  five  months,  being  confined  to  his 
bed  most  of  tliat  time.  Held,  that  a  verdict 
for  six  cents  should  be  set  aside  as  inade- 


iS 


872 


NEW  TRIAL,  81>,  90. 


ft  ' 


quale,  and  a  new  trial  granted.  Kobbins  v. 
Hudson  Niver  N,  Co.,  7  Bos'm.  (N.  Y.)  i. 

In  an  action  to  recover  damages  to  horses 
while  being  carried,  plaintill  proved  posi- 
tively by  four  witnesses  that  tlie  horses 
were  damaged,  and  by  one  or  more  witnesses 
that  some  of  the  injuries  were  of  a  perma- 
nent character,  the  damage  being  assessed 
at  from  $16  to  $75  on  each  of  six  horses. 
The  company  introduced  but  one  witness, 
who  merely  said  that  he  did  not  notice  that 
any  of  the  horses  were  much  bruised  or 
hurt  when  unloaded,  but  admitted  that  he 
could  not  describe  the  appearance  of  any 
of  the  horses  when  unloaded.  Held,  that  a 
verdict  of  $2. 12J  in  favor  of  plaintiff  was 
insufTicient  and  against  the  weight  of  evi- 
dence. Eggleston  v.  Gulf,  C.  &-  S.  F.  K. 
Co.,\  Tex.  App.  (Ctv.  Cas.)  501,  \%  S.  W. 
Kep.  137. 

An  award  of  $1000  for  serious  injuries, 
which,  however,  the  jury  might  have  found 
not  to  be  permanent,  will  not  be  disturbed 
as  inadequate.  McDermott  v.  Chicago  &• 
N.  IV.  A\  Co.,  85  IVts.  102,  55  N.  IV.  Rep. 
179. 

80.  Determining  the  question  of 
inadequacy.— In  determining  the  ques- 
tion of  the  inadequacy  of  damages  it  will 
be  assumed  that  the  jury  found  every  fact 
going  to  mitigate  or  reduce  the  damages 
which  they  could  properly  find  from  the 
proofs.  McDermott  v.  Chicago  &*  N.  IV. 
R.  Co.,  85  Wis.  102,  55  N.  W.  Rep.  179.— 
Following  Robinson  v.  Waupaca,  ^^  Wis. 
344- 

6.  Newly  Discovered  Evidence. 

00.  What  newly  discovered  evi- 
<lence  will    warrant    a   new  trial.— 

Plaintiff  subscribed  for  certain  bonds  of  de- 
fendant company  and  for  certain  shares  of 
stock  on  condition  that  100  of  such  bonds 
sho  lid  be  subscribed  for  "on  like  terms." 
Suit  was  brousilit  on  the  subscription,  the 
<:ompany  averring  that  the  100  had  been 
subscribed  for,  when  in  fact  only  92  had 
lieen  subscribed  for;  but  plaintiff,  believing 
the  statement  of  the  company's  officers,  did 
not  discover  the  truth  for  a  year  or  more 
iifter  judgment.  Held,  a  proper  case  where 
equity  would  grant  relief  by  awarding  a 
new  trial.  Ennor  v.  Galena  &» S.  II'.  A'.  Co., 
14  ///.  App.  327;  reversed  in  1 16  ///.  55,4 
N.  E.  Rep.  762. 

Plaintiff,  who  sued  for  personal  injuries, 
claimed  that  he  had  suffered  from  fits  by 


reason  of  the  injury.  On  motion  for  a  new 
trial  the  company  offered  affidavits  that 
certain  persons  would  testify  that  plaintiff 
had  suffered  from  the  fits  before  the  injury. 
Held,  not  good  ground  for  a  new  trial 
where  the  persons  themselves  filed  affidavits 
denying  the  fact,  or  that  they  would  so  tes- 
tify. Griffith  V.  Baltimore  &•  O.  R.  Co.,  44 
Fed.  Rep.  574. 

On  a  motion  for  a  new  trial  the  question 
is  not  whether  a  jury  might  be  induced  t<^ 
give  a  different  verdict,  but  whether  the 
legitimate  effect  of  the  new  evidence  would 
be  to  require  a  different  verdict.  Omaha, 
N.  &^  B.  H.  R.  Co.  V.  O'Donnell,  24  Neb. 
753,  40  N.   IV.  Rep.  298. 

In  an  action  for  the  destruction  of  grow- 
ing timber  by  fire,  evidence  that  when  the 
foliage  came  out  in  the  spring  after  the 
trial  it  appeared  that  very  little  of  the  tim- 
ber nad  been  killed,  and  that  this  fact  could 
not  have  been  so  easily  and  definitely  ascer- 
tained or  positively  proved  when  the  case 
was  tried,  because  forest  leaves  had  then 
fallen,  is  not  such  newly  discovered  evidence 
as  to  warrant  a  new  trial.  Austin  v.  North- 
ern Pac.  R.  Co.,  34  Minn.  351,  25  N.  IV. 
Rep.  798. 

Evidence  newly  discovered,  relevant,  and 
material,  which  appears  not  to  have  been 
undiscovered  through  the  appellant's  laches 
or  negligence,  consisting  of  a  letter  and 
also  a  written  agreement  in  respondent's 
possession  during  the  trial  at  law,  consti- 
tutes ground  sufficient  for  staying  proceed- 
ings on  the  judgment  obtained  at  law  and 
for  ordering  a  retrial.  Cairo  &•  F.  R.  Co. 
V.  Titus,  32  N.  J.  Eq.  397 ;  reversing  30 
A^.  J.  Eq.  502. 

In  an  action  by  a  brakeman  against  a 
railroad  to  recover  for  personal  injuries,  he 
testified  that  he  received  the  injuries  while 
in  the  discharge  of  his  duties.  His  physi- 
cians testified  that  he  told  them  that  he  re- 
ceived the  injuries  by  jumping  from  the 
train.  In  rebuttal  the  plaintiff  testified  that 
if  he  made  such  statements  to  the  physi- 
cians he  was  not  in  his  right  mind  at  the 
time.  At  the  time  the  company  was  not 
prepared  to  prove  the  state  of  his  mind, 
but  afterwards  discovered  evidence  to  prove 
his  sanity.  Held,  that  this  was  such  after- 
discovered  evidence  as  to  entitle  it  to  a 
new  trial.  Missouri  Pac.  R.  Co.  v.  Walker, 
(Tex.)  7  S.   W.  Rep.  791. 

The  right  to  grant  a  new  trial  on  the 
ground  of  newly  discovered  evidence  does 


NEW  TRIAL,  91-93. 


878 


not  rest  exclusively  within  the  trial  court. 
The  appellate  court  will  revise  tlie  action 
of  the  lower  court  when  the  newly  discov- 
ered evidence,  when  considered  in  connec- 
tion with  the  facts  developed  on  the  trial, 
is  clearly  material  to  the  issue,  and  might 
probably  produce  a  different  result  on  an- 
other trial.  Houston  &>  T.  C.  A'.  Co.  v. 
Forsyth,  ^^  Tex.  171. 

91.  The  diligence  required.— Where 
a  new  trial  is  claimed  on  the  ground  of 
newly  discovered  evidence,  and  it  appears 
that  the  evidence  could  with  proper  dili- 
gence have  been  produced  at  the  trial,  the 
motion  for  a  new  trial  is  properl'  refused. 
Houston  &*  T.  C.  Ji.  Co.  v.  Devatny,  63 
Tex.  172. 

A  witness  testified  to  declarations  made 
at  the  wreck  by  the  general  manager  of  the 
railway  reprimanding  an  employe,  the  sec- 
tion foreman,  for  not  going  over  the  track 
in  the  morning  before  the  wreck  occurred. 
On  a  motion  for  new  trial  it  was  shown  that 
the  general  manager  would  deny  said  testi- 
mony. It  was  also  shown  that  the  manager 
was  out  of  the  state,  so  that  after  knowing 
of  the  materiality  of  his  testimony  it  could 
not  be  obtained.  Held,  that  a  new  trial 
should  have  been  granted,  and  its  refusal  is 
ground  for  reversal.  Texas  &*  P.  R.  Co.  v. 
Barron,  78  Tex.  421,  14  5.  W.  Rep.  698. 

A  motion  for  a  new  trial  because  of  newly 
discovered  evidence  is  properly  overruled 
where  no  proper  diligence  wab  ised  to  learn 
what  the  evidence  of  the  absent  witnesses 
would  be.  Missouri  Pac.  R.  Co.  v.  White, 
48  Am.  6^  Eng.  R.  Cas.  206,  80  Tex.  202,  1 5 
S.   IV.  Rep.  808. 

92.  EflTcct  of  laches.— In  an  action 
for  killing  animals  a  new  trial  on  the  ground 
of  newly  discovered  evidence  was  properly 
refused  defendant  when  the  witnesses  re- 
lied upon  to  secure  a  new  trial  lived  in  a 
situation  wliich  would  have  enabled  them, 
if  any  one,  to  know  of  the  horses  being  in 
the  highway,  as  claimed  by  defendant,  and 
yet  they  were  not  applied  to  for  informa- 
tion until  after  the  trial,  and  the  only  reason 
assigned  for  not  interviewing  them  being 
that  defendant  had  no  reason  to  believe 
they  knew  anytiiing  about  the  case,  and, 
further,  that  said  parlies  had  agreed  with 
each  otiier  to  conceal  their  information 
from  defendant,  and  it  would  have  been 
useless  to  have  consulted  them.  There 
was  an  utter  lack  of  diligence  shown.  It 
cannot  be  presumed  in  order  to  relieve  de- 


fendant from  the  imputation  of  negligence 
that  the  parties,  if  consulted,  would  have 
wilfully  falsified  respecting  the  occurrence. 
Chicago  &*  E.  I.  R.  Co.  v.  McKeehan,  5  Ind. 
App.  124,  31  N.  E.  Rep.  831. 

In  a  suit  for  personal  injuries  the  com- 
plaint alleged  that  plaintiff  had  sustained 
severe  injuries,  and  claimed  $5000  damages. 
After  a  verdict  for  plaintiff  defendant 
moved  for  a  new  trial  because  of  newly  dis- 
covered evidence  relating  to  the  extent  of 
plaintiff's  injuries.  It  did  not  appear  that 
before  the  trial  defendant  had  made  any 
investigation  as  to  the  character  or  extent 
of  those  injuries.  The  motion  was  denied. 
Rose  V.  Stephens  &"  C.  Transp.  Co.,  20 
Blatchf.  {U.  S.)  465.  19  Fed.  Rep.  808. 

A  new  trial  will  not  be  granted  on  the 
ground  of  newly  discovered  evidence  where 
the  alleged  newly  discovered  evidence  was 
known  to  the  party  long  before  the  trial, 
and  was  not  offered  because  of  a  belief 
that  it  was  unnecessary  for  the  purposes  of 
the  defense.      Van  Tassell  v.  New  York,  L. 

E.  &^  IV.  R.  Co.,  I  Misc.  312,  20  JV.  V. 
Supp.  715.  48  A^.  Y.  S.  R.  782. 

93.  The  evidence  must  be  mate- 
rial.— Where  the  evidence  of  an  eye-witness 
shows  that  the  animal,  the  killing  of  which 
is  complained  of,  was  killed  without  fault 
or  negligence,  and  where  the  testimony  of 
the  plaintiff  given  at  a  former  trial  tends  to 
confirm  that  evidence,  and  the  eye-witness 
stands  unimpeached,  new  evidence  as  to 
tracks  made  by  the  animal  which  can  be 
reconciled  with  all  the  other  facts  without 
imputing  perjury  to  any  witness  adds  no 
strength  to  the  plaintiff's  case.  It  follows 
that  the  plaintiff  could  not  recover  at  the 
second  trial,  and  that  a  second  verdict  m 
his   favor  should  be  set  aside.     Savannah, 

F.  &'  W.  R.  Co.  v.  Gray,  85  Ga.  825.  ii  S. 
E.  Rep.  1022. 

Where  a  civil  engineer  sues  a  railroad  for 
salary,  claiming  to  have  been  hired  at  a 
fixed  monthly  compensation,  which  is  de- 
nied by  the  company,  a  verdict  for  plaintiff 
will  not  be  set  aside  on  the  ground  of  after- 
discovered  evidence,  consisting  of  a  bill  for 
specific  services  made  out  and  presented  by 
plaintiff,  which  is  inconsistent  with  a  gen- 
eral hiring,  when  such  bill  was  found  after 
the  trial  in  the  papers  of  the  company. 
Cook  V.  St.  Louis  &-  K.  R.  Co.,  56  Mo.  380. 
— Quoted  in  Iron  Mountain  Bank  v.  Arm- 
strong, 92  Mo.  265. 

In  an  action  for  personal  injuries  plaintiff 


g 


874 


NEW  TRIAL,  94-07. 


.III 

I. 
It 


* 


gave  evidence  as  to  her  age.  On  a  motion 
for  a  new  trial  the  company  claimed  to  have 
discovered  evidence  that  plaintiiT  was  some- 
thinfj  like  two  years  older  than  claimed. 
NeM,  that  such  difference  oujjht  not  to  vary 
the  finding,  and  in  all  human  probability 
would  not  i  therefore  a  new  trial  was  prop- 
erly refused.  Georgia  R.  Co,  v.  Kicklighter, 
63  Ga.  708. 

A  new  trial  will  not  be  granted  on  the 
ground  of  newly  discovered  evidence  unless 
it  be  so  decisive  in  character  that  it  will  be 
productive  on  another  trial  of  an  opposite 
result.  Schultz  v.  Third  Ave.  R.  Co.,  \^J. 
&>  S.  {A',   y.)  285. 

A  new  trial  should  not  be  granted  on  the 
ground  of  newly  discovered  evidence  unless 
the  legitimate  effect  of  such  evidence,  when 
considered  in  connection  with  that  pro- 
duced on  the  trial,  ought  to  result  in  a 
different  verdict  or  finding.  The  rule  of 
practice  on  this  subject  was  not  substantially 
changed  by  section  297  of  Ohio  Code  of 
Civil  Procedure.  Cleveland,  C,  C.  &*  I,  R. 
Cu.  V.  Long,  24  Ohio  St.  1 33. 

94.  Rule  as  to  cumulative  evi- 
dence.— The  fact  of  the  discovery  of  new 
evidence  which  is  only  cumulative  is  not 
ground  for  a  new  trial ;  but  cumulative  evi- 
dence is  additional  evidence  of  the  same 
kind,  and  it  is  not  cumulative  when  it  is 
of  a  different  character,  and  merely  tends 
to  prove  the  former  proposition  by  proof  of 
a  new  and  distinct  fact.  Houston  6r^  T,  C. 
R.  Co.  V.  Forsyth,  49  Tex.  1,71. 

While  in  rate,  exceptional  cases  a  new 
trial  may  be  granted  upon  newly  discovered 
evi'enre  t'iat  is  merely  cumulative,  it  should 
i  •  .  lione  unless  such  evidence  would  in 
liiL  r.  1)11  of  the  court  certainly  remove 
;  !    d<  and  lead   to  a  different  result. 

L.' "/-/(.  .'  O.  6f*  T.  R.  Co.  V.  Cray  ton,  69 
.]■/•>    ■   ..,    J,  So.  Rep.  27 \. 

Ai.  a  L.iui  for  personal  injuries  plaintiff 
offered  evidence  that  his  hip  was  crushed, 
and  that  it  was  impossible  for  him  to  do 
manual  work,  and  that  his  injuries  were 
permanent,  winch  was  uncontradicted,  and 
plaintiff  obtained  a  verdict.  Defendant 
moved  for  a  new  trial  on  the  ground  of 
newly  discovered  evidence,  and  offered  af- 
fidavits that  plaintiff  soon  after  the  trial 
had  engaged  in  physical  labor.  This  was 
in  the  main  denied  by  plaintiff,  and  that 
what  labor  he  had  done  was  from  necessity 
and  under  great  pain.  The  inntioii  was  de- 
nied, but  It  was  suljsi  (iiicnily  renewed  and 


additional  affidavits  filed  stating  that  after 
the  first  motion  plaintiff  had  performed 
physical  feats,  requiring  severe  exercise,  for 
the  amusement  of  a  crowd,  and  had  admitted 
that  he  had  recovered  his  usual  health  and 
strength.  Held,  that  this  evidence  was  not 
merely  cumulative,  but  was  proper  ground 
for  a  new  trial.  Cole  v.  Fall  Brook  Coal  Co., 
16  N.  Y.  Stifip.  789.  40  N.  V.  S.  R.  834,  61 
Hun  623,  mem. 

95. evidence  to  inipeacli  a  wit- 
ness.—A  new  trial  will  not  be  granted  on 
the  ground  of  newly  discovered  testimony 
the  only  effect  of  which  is  to  impeach  the 
credibility  of  a  witness.  Moore  v.  Chicago, 
St.  L.  &-  JV.  O.  R.  Co.,  9  Am.  <&»  Eng.  R. 
Cas.  401,  59  Miss.  243.  Houston  City  St.  R. 
Co.  V.  Sciacca,  80  Tex.  350,  \6  S.  IV.  Rep. 

A  new  trial  will  not  be  granted  on  ac- 
count of  newly  discovered  evidence  where 
the  object  of  such  testimony  is  merely  to 
contradict  or  impeach  the  credit  of  a  wit- 
ness who  testified  upon  the  trial.  But  this 
objection  is  inapplicable  where  the  testi- 
mony goes  to  prove  facts  material  to  the 
issue  in  the  case,  though  it  m'ay  also  tend  to 
contradict  or  lessen  the  credit  of  opposing 
witnesses.  Houston  &»  T.  C.  R.  Co.  v, 
Forsyth,  ^g  Tex.  171. 

A  new  trial  will  not  be  granted  upon  the 
ground  of  newly  discovered  testimony  im- 
peaching the  experience  and  competency  of 
one  of  plaintiff's  witnesses  as  a  locomotive 
engineer,  and  to  testify  as  an  expert  as  to 
the  distance  within  which  a  train  might  be 
stopped.  Hooker  v.  Chicago,  M.  Sf  St.  P. 
R.  Co.,  41  Am.  (S-  Eng.  R.  Cas.  498,  76  Wis. 
542,  44  N.  IV.  Rep.  1085. 

7.  Surprise, 

96.  New   trial,   when   ordered. — 

Where  a  sufficient  showing  is  made  that 
the  prevailing  party  introduced  false  testi- 
mony upon  a  material  issue,  wliich  the  de- 
feated party  could  not  then  contradict,  but 
could  upon  a  new  trial  prove  to  be  false,  a 
new  trial  is  properly  granted.  First  Nat. 
Bank  v.  Wabash,  St.  L.  <S-  P.  R.  Co.,  61 
Iowa  700,  1 7  N.  W.  Rep.  48. 

97.  when  refused.— In  an  action 

against  a  carrier  for  a  delay  in  delivering 
freights,  plaintiff's  evidence  was  confined 
almost  entirely  10  the  question  of  negligence, 
and  the  court  ruled  that  no  contract  had 
been  established   between  the  parties,  and 


NEW  TRIAL,  98,  00. 


875 


submitted  the  case  to  the  jury  on  the  ques- 
tion of  negligence.  Held,  that  the  defend- 
ant was  in  no  rjspect  surprised  or  misled 
thereby,  and  had  no  cause  to  complain  of 
the  action  of  the  court.  Watte  v.  New 
York  C.  .S-  H.  H.  A\  Co.,  2  Silv.  App.  85, 
no  A^.  Y.  635,  mem.,  17  A''.  E.  Rep.  730,  17 
N.  Y.  S.  R.  162 ;  affirming  39  Hun  655, 
mem, 

A  passenger  injured  in  alighting  from  a 
train  sued  both  the  company  and  its  con- 
ductor. Plaintiff  and  the  conductor  were 
both  examined  as  witnesses,  and  the  interest 
of  each  was  discussed  in  the  argument  to 
the  jury.  Upon  the  jury  retiring  plaintiff 
dismissed  as  to  the  conductor.  This  was 
not  known  to  counsel  for  the  company. 
There  was  nothing  tending  to  show  that  the 
conductor  was  made  a  party  for  the  purpose 
of  affecting  his  standing  as  a  witness.  Held, 
that  the  company  could  not  complain  of 
such  dismissal,  and  it  was  no  ground  ior  a 
new  trial.  Texas  &>  P.  R.  Co.  v.  Miller,  79 
Tex.  78, 155.  W.  Rep.  264.— Followed  in 
Boggs  V.  Brown,  82  Tex.  41. 

That  a  witness  for  the  losing  party  testi- 
fied at  the  trial  in  a  way  to  be  misunder- 
stood is  no  cause  for  a  new  trial  if  the  mis- 
understanding could  have  been  prevented 
by  due  diligence  in  consulting  with  the 
witness  and  conducting  his  examination. 
Crawford  v.  Georgia  Pac.  R.  Co.,  86  Ga.  5, 
\2S.E.  Rep.  176. 

A  new  trial  will  not  be  granted  on  the 
ground  of  surprise  because  a  party  assumes 
that  a  witness  knew  more  of  a  transaction 
than  his  testimony  discloses.  Van  Tassell 
v.  A'(W  1  'ork,  L.  E.  &>  IV.  'R.  Co.,  i  J/ise. 
312,  20  N.   V.  Supp.  715,  48  A^  Y.  S.  R.  782. 

A  complainant  sought  to  obtain  a  new 
•  trial  in  equity  on  tiie  ground  that  the  at- 
torney of  the  plaintiffs  in  the  suit  at  law 
(defendants  in  this  court)  fraudulently  con- 
cealed a  written  agreement,  which,  it  was 
insisted,  materially  affected  the  plaintiffs' 
claim  to  the  great  advantage  of  the  defend- 
ant. It  appeared  that  before  the  suit  was 
commenced  plaintiffs'  attorney  handed  the 
agreement  to  defendant's  attorney  (not  the 
counsel  who  tried  the  cause  for  it,  how- 
ever) for  examination.  It  appeared,  also, 
ih.it  the  person  who  negotiated  the  transac- 
tion (an  advance  of  money)  which  resulted 
in  the  agreement,  and  who  made  the  agree- 
ment, and  who  professed  to  have  been  act- 
ing therein  as  the  agent  of  defendant,  was 
a   witness    for    plaint  itif>;  that    lie  was   ac- 


cessible to  defendant  and  its  counsel,  both 
before  and  at  the  time  of  the  trial,  but  it 
did  not  examine  him  on  the  subject  of  the 
existence  of  the  agreement,  or  of  any  such 
agreement.  Such  examination  was  to  be 
expected,  because  defendant  claimed  that 
in  the  transaction  the  witness  acted  for 
himself,  and  not  for  defendant.  It  appeared, 
also,  that  there  was  no  concealment  on  the 
part  of  plaintiffs  of  the  character  of  their 
demand.  Held,  that  complainant  had  no 
claim  to  relief.  Cairo  &>  F.  R.  Co.  v.  Titus, 
30  N.  J.  Eg.  502 ;  reversed  in  32  A^.  /.  Eg. 

397. 

Where  a  party  has  a  defense  to  an  action 
arising  out  of  the  testimony  in  the  case,  and 
omits  to  present  it  to  the  jury,  but  relies 
upon  a  defense  involving  a  different,  if  not 
inconsistent,  conclusion  from  the  testimony, 
a  new  trial  will  not  be  granted  to  enable 
him  to  submit  the  case  to  another  jury  upon 
this  untried  question  unless  it  clearly  ap- 
pears from  the  evidence  that  he  is  entitled 
to  a  verdict  on  that  ground,  and  then  only 
upon  the  payment  of  the  costs  of  the  first 
trial.  McCune  v.  Northern  Pac:  R.  Co.,  15 
Am.  &>  Eng.  R.  Cas.  172,  9  SaTvy,  {U.  S.) 
SSL  iS  Fed.  Rep.  87s. 

II.  TEE  ATPLICATION,  AND  HOW  DISPOSED 
OF. 

98.  Jurisdiction— Place  to  move. 

— That  the  verdict  of  the  jury  is  not  sus- 
tained by  the  evidence  is  a  wrong  which 
the  appellate  court  has  no  power  to  redress, 
the  only  remedy  therefor  being  a  motion 
for  a  new  trial  in  the  primary  court.  Ala- 
bama G.  S.  R.  Co.  V.  Powers,  ig  Am.&'  Eng. 
R.  Cas.  502,  73  Ala.  24.). 

If  there  is  no  conflict  in  the  evidence, 
then  its  sufficiency  becomes  a  question  of 
law  to  be  determined  by  the  court,  and  may 
be  considered  on  a  motion  for  a  new  trial, 
which  should  be  granted  if  the  evidence  is 
found  insufficient ;  and  it  is  not  necessary 
to  have  raised  the  point  at  the  trial,  either 
by  a  motion  to  dismiss  or  by  directing  the 
jury  to  find  a  verdict  for  the  complaining 
party.  Halpin  v.  Third  Ave.  R.  Co.,ZJ. 
&sS.  {N.  F.)  175- 

99.  Power  to  grant— Second  and 
third  new  trials.— The  controversy  being 
one  of  fact  only,  a  third  verdict  for  the 
plaintiff  not  being  excessive  in  amount,  and 
the  evidence,  takinti;  it  in  its  utmost  force, 
letter,  and  spirit,  in   favor  of  the  plaintiff. 


g 


876 


NEW  TRIAL,  100-102. 


\m 


being  sufficient  to  warrant  a  recovery,  a 
fourth  trial  should  be  denied.  Savatnux/i, 
F.  (S-  W.  A".  Co.  V.  Smith,  86  Ga.  229,  12  5. 
E.  Rep.  579. 

The  supreme  court  dismissed  an  appeal, 
for  want  of  jurisdiction,  from  the  refusal  of 
the  trial  judge  to  grant  a  new  trial,  in  an 
action  against  a  railroad  company,  taken 
upon  the  ground  tliat  the  verdict  was  for 
excessive  damages.  A  succeeding  circuit 
judge  granted  an  application  for  a  new 
trial  based  upon  the  same  ground.  Held, 
that  he  had  no  power  to  do  so.  Steele  v. 
Charlotte,  C.  (S>«  A.  A\  Co.,  14  So.  Car.  324, 

A  trial  judge  may  grant  a  new  trial  of  a 
case  tried  by  his  predecessor  on  the  ground 
of  insufficient  evidence,  whether  the  in- 
structions to  the  jury  were  correct  or  not, 
although  tlie  evidence  was  substantially 
conflicting,  and  the  court  Which  granted 
the  new  trial  had  not  heard  the  evidence. 
iVilson  v.  California  C.  A'.  Co.,  55  Am.  &* 
Eng.  R.  Cas.  625,  94  Cal.  166,  29  Pac.  Rep. 
861. 

Tiie  Tenn.  statute  providing  that  "  not 
more  than  two  new. trials  shall  be  gran*»d 
to  the  same  party  in  an  action  at  law,  or 
upon  trial  by  jury  of  an  issue  of  fact  in 
equity,"  deprives  the  trial  judge  of  any 
power  to  set  aside  a  third  verdict  upon  the 
sole  ground  that  the  evidence  is  insufficient 
to  support  it,  where  two  former  verdicts  in 
tlie  same  case  have  been  set  aside  upon 
motion  of  the  same  party  for  that  cause 
alone.  But  this  statute  has  no  application 
10  a  case  in  which  there  is  no  evidence  to 
support  the  verdict,  and  in  such  cas<*  the 
trial  judge  may  set  aside  even  a  third  or 
iiny  subsequent  verdict  in  the  same  case 
and  upon  motion  of  the  same  party.  East 
Tenn.,  V.  &*  G.  R.  Co.  v.  Mahoney,  89  Tenn. 
311,  155.   W.  Rep.  652. 

100.  SiifHcicncy  of  movingr  afllda- 
vlts. — Where  objection  is  made  to  the  rul- 
ing of  a  trial  court  in  the  giving  or  refusmg 
to  give  instructions  to  the  jury,  the  instruc- 
tions given  or  refused  must  be  pointed  out 
i:i  tlie  motion  for  a  new  trial  in  some  way, 
cithei  by  ntmiber  or  other  means  of  identi- 
fying the  same.  Weir  v.  Burlington  &>  M. 
R.  R.  Co.,  19  Neb.  212,  26  A^.  IV.  Rep.  627. 
—Following  Hastings  &  G.  I.  R.  Co.  v. 
Iiigalls,  15  Neb.  129. 

To  support  a  motion  for  a  new  trial  on 
the  ground  of  newly  discovered  evidence, 
and  to  show  negligence  on  the  part  of  the 
defendant  in  the  breaking  of  certain  rods 


on  an  engine,  plaintifT  filed  affidavits  of  two 
section  men  that  on  the  day  of  the  accident 
they  picked  up  the  broken  pieces,  but 
neither  they  nor  plaintifif,  who  examined 
them,  described  their  condition  at  the  time, 
but  only  after  being  exposed  to  the  air  and 
dirt  for  several  months.  Held,  that  a  new 
trial  was  properly  refused,  lieery  v.  Chi- 
cago &•  N.  W.  R.  Co.,  72  ^^is.  197, 40  A^.  W. 
Rep.  687. 

101.  Jiii'orH*  nffldnvits  and  testi- 
mony.— An  affidavit  by  a  juror  that  a  ver- 
dict was  arrived  at  by  each  juror  setting 
down  the  amount  he  regarded  as  just,  and 
aggregating  them,  and  then  dividing  by 
twelve,  it  having  been  agreed  that  the 
amount  so  ascertained  should  be  the  ver- 
dict, ought  not  to  be  received  or  considered 
on  a  motion  for  a  new  trial.  Chesapeake  &* 
O.  R.  Co.  V.  Patton,  9  W.  Va.  648. 

Although  the  practice  of  admitting  affi- 
davits of  jurors  to  impeach  their  verdict  is 
not  to  be  favored  or  extended,  yet  it  is  fre- 
quently the  only  means  by  which  the  court 
can  be  apprised  of  the  misconduct  of  the 
jury ;  and  such  affidavits  will  be  considered 
where  it  appears  therefrom  that  the  fairness 
and  purity  of  the  jury  trial  has  been  tainted 
by  such  methods  as  gambling  verdicts. 
East  Tenn.  &^  W.  N.  C.  R.  Co.  v.  Winters, 
85  Tenn.  240,  i  S.  W.  Rep.  790. 

What  is  done  in  the  jury  room,  and  what 
is  known  to  all  the  jury  to  exist,  and  what 
relates  to  matters  not  connected  with  their 
individual  consciences  in  arriving  at  or  de- 
termining their  verdict,  may  be  testified  to 
by  a  juror;  but  where  it  is  sought  to  show 
the  reasons  for  a  verdict,  or  any  of  the  ele- 
ments which  go  to  make  up  a  verdict,  or 
the  particular  ideas  of  a  juryman  in  deter- 
mining the  verdict,  these  are  beyond  the' 
province  of  inquiry.  Leroy  iS»  W.  R.  Co.  v. 
Anderson,  41  Kan.  528,  21  Pac.  Rep.  588. 

Affidavits  of  jurors  will  not  be  received  for 
the  purpose  of  impeaching  or  avoiding  their 
verdict  in  respect  to  a  matter  which  essen- 
tially inheres  in  the  verdict  itself.  Ccwles 
V.  Chicago,  R.  I.  &'  P.  R.  Co.,  32  Iowa  515, 
10  Am.  Ry.  Rep.  36.— Following  Stewart 
t'.  Burlington  &  M.  R.  R.  Co.,  11  Iowa  62. 

102.  The  lieariiiK,  and  what  will 
be  considered. — Where  a  motion  is  made 
for  a  new  trial  on  the  ground  of  excessive 
damnges,  the  fact  that  a  former  jury  award- 
ed the  same  damages  has  no  force  in  sus- 
taining the  verdict,  where  it  appears  thai 
the  former  jury  were  authorized  to  award 


NEW  TRIAL,  10:i.— NEW  YORK. 


877 


exemplary  damages,  which  was  denied  the 
second  jury  under  the  instructions  of  the 
court,  /hiss  V.  Chicago  &*  N,  VV.  K.  Co., 
39  IFi's.  636,  13  ^Im.  Ay.  Rep.  414. 

103.  lie  view  of  motion  in  appel- 
late court.— When  a  motion  is  made  for 
a  new  trial  because  of  the  insufficiency  of 
tiie  evidence,  and  the  testimony  is  conflict- 
int;,  the  granting  or  refusing  a  new  trial  is 
largely  in  the  discretion  of  the  trial  court, 
and  its  acts  will  not  be  overruled  unless 
there  is  a  clear  abuse  of  discretion.  White 
V.  Union  Pac.  R.  Co.,  8  Utah  56,  29  Pac. 
Rep.  1030. 

Where  a  motion  for  a  new  trial  does  not 
allege  that  the  damages  are  excessive,  such 
/  objection  cannot  be  urged  on  appeal.  Peo- 
ria, D.  &*  E.  R.  Co.  V.  Booth,  1 1  ///.  App. 

358- 

Where  plaintiff's  testimony  is  material 
upon  the  question  whether  his  view  of  the 
track  was  obstructed  by  cars  standing  on 
the  side  track,  and  by  reason  of  his  piiys- 
ical  disability  he  is  unable  to  submit  to 
cross-examination,  whereupon  his  direct 
examination  is  stricken  out  on  motion  of 
defendant's  attorney,  and  the  jury  in  an- 
swer to  a  special  question  find  that  there 
were  no  cars  standing  on  said  side  track  at 
the  time  of  the  accident,  which  finding  is 
claimed  to  conflict  with  their  general  ver- 
dict in  favor  of  plaintiff,  and  a  motion  for 
juagment  in  favor  of  defendant  on  such 
special  finding  is  denied,  and  judgii:ent  ren- 
dered on  the  general  verdict,  after  which 
plaintiff  is  granted  a  new  trial  upon  affida- 
vits of  his  physicians  giving  assurance  that 
he  would  be  able  to  give  his  testimony  on  a 
second  trial,  there  is  no  abuse  of  discretion 
in  granting  such  new  trial.  Chicago  <&*  G. 
T.  R.  Co.  V.  Newton,  89  Mich.  549,  50  N.  IV. 
Rep.  879. 

The  first  grant  of  a  new  trial  will  not  be 
reversed  unless  it  plainly  and  manifestly  ap- 
pears that  there  was  an  abuse  of  discretion 
by  the  court  below,  and  the  supreme  court 
will  not  closely  scrutinize  the  facts  in  evi- 
dence or  endeavor  to  balance  with  great  ex- 
actness the  testimony  on  both  sides  with  a 
view  to  detecting  an  abuse  of  discretion  by 
the  trial  judge.  The  exercise  of  that  dis- 
cretion in  favor  of  granting  new  trials 
should  be  encouraged.  So  held,  in  an  action 
against  a  railroad  for  personal  injury.  Geor- 
gia M.  &*  G.  R.  Co.  V.  Curry,  90  Ga.  250, 
15  S.  E.Rep.  751. 

There  being  sufficient  evidence  to  uphold 


the  verdict,  and  the  new  trial  judge  being 
satisfied  therewith,  his  discretion  in  refus- 
ing a  new  trial  will  not  be  interfered  with. 
So  held,  in  an  action  against  a  railroad  by  a 
brakeman  for  injury  resulting  from  a  de- 
fective brake  wheel  East  Tenn.,  V.  &*  G. 
R.  Co.  V.  Smith,  90  Ga.  558,  i6  5.  E.  Rep. 
950. 

The  trial  judge  has  a  right  to  use  his  dis- 
cretion in  setting  aside  a  verdict  where  lie 
believes  a  verdict  to  be  the  result  of  mis- 
taken sympathy  for  a  poor  man.  McGunigal 
V.  Grand  Trunk  R.  Co.,  33  U.  C.  Q.  B.  194. 


NEWLT  DISCOVERED  EVIDENCE. 

As  ground  for  new  trial,  see  New  Trial,  90- 
05. 


NEW  TORE. 

Aid  to  railways  by  the  state,  see  State  Aid, 
27. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 270. 

Conditions  exempting  carrier  from  liability 
to  person  riding  on  free  pass  in,  see 
Passes.  20. 

Consent  of  city  to  use  of  steam  power  in 
streets,  see  Streets  and  Highways,  08. 

Constitutionality  of  statutes  of,  as  to  mu- 
nicipal aid  for  railways,  see  Municipal 
AND  Local  Aid,  44. 

relative  to  condemnation  of  land, 

see  Eminent  Domain,  40. 

tax  laws  of,  see  Taxation,  40. 

Crossing  of  streets  and  highways  under  stat- 
utes of,  see  Crossing  of  Streets  and 
Highways,  5. 

Decisions  particularly  applicable  to  city  of, 
see  Municipal  Corporations,  49. 

Deductions  for  benefits  under  condemnation 
laws  of,  see  Eminent  Domain,  747. 

Duty  to  locate  station  under  statutes  of,  see 
Stations  and  Depots,  20. 

Examination  of  parties  before  trial  in,  see 
Discovery,  etc,  8. 

Grade  crossings  under  statutes  of,  see  Cross- 
ings of  Railroads,  08. 

Grants  by,  to  railroads,  see  Land  Grants, 
124. 

Injuries  to  animals  running  at  large  in,  see 
Animals,  Injuries  to,  272. 

Laying  out  streets  across  railways  under 
statutes  of,  see  Crossing  of  Streets  and 
Highways,  48. 

Liability  of  company  to  laborers  employed  by 
contractors  in,  see  Construction  of  Rail- 
ways, 98 


I 


3 
I 


878 


NEXT   OF   KIN— NOMINAL  DAMAGES. 


m 


m  i? 


4\ 


I  III 


Local  assessment  upon  steam  r  ilways  in, 
for  repairs,  paving^,  etc.,  see  Stkkkts  and 
Highways,  :*5a. 

Occupation  of  streets  by  steam  roads  under 
legislative  grants  of,  sec  Sikkets  and 
IIkuiways,  nii. 

Operation  of  statute  of,  giving  right  of  action 
for  causing  death,  sec  Dkaiii  uy  Wuung- 
Kiii.  Act,  28. 

Plaintiff's  pleadings  need  not  negative  con- 
tributory negligence  in,  see    Cuntkibu- 

TORY  NeGLICENCE,  (t2. 

Power  of  city  to  grant  use  of  streets  for  rail- 
way, see  Street  Railways,  11),  20, 
40. 

Review  of  town  bonding  proceedings  by  man* 
damus  in,  see  Municipal  and  Local  Aid, 
450. 

Right  to  sue  in,  for  causing  death  in  foreign 
state, see  Death  hyWrongful  Act,  121. 

Rule  as  to  imputed  negligence  in,  see  Imputed 
Negligence,  lO. 

—  in,  allowing  liability  for  negligence  to  be 

limited,   see  Carriage  ok   Live  Stock, 

7S,   70 ;    Carriage  of    Merchandise, 

475-477;    Express   Companies,    06; 

Limitation  of  Liahility,  IIJI. 
as  to  measure  of  damages  for  causing 

death.sce  Death  by  Wrongful  Act,J387. 
preliminary  payments  for  stock, 

see  SuBSCKiPTioNs  to  Stock,  140. 
Statutes  of,  against  riding  on  platform,  see 

Street  Railways,  41U. 
as  to  stoves  and  furnaces  in  cars,  see 

Carriage  of  Passengers,  lOO. 

—  —  regarding  flagmen  at  crossings,  see 
Crossings,  Injuries,  etc.,  at,  83. 

relative  to  condemning  right  of  way 

through  streets,  see  Streets  and  Hish- 
WAYS,   118. 

connecting  lines,  see  Connect- 
ing Lines,  2. 

distribution  of  damages  for  caus- 
ing death,  see  Death  by  Wrongful  Act, 
05. 

intersection    of    railways,     see 

Crossings  of  Railroads,  13. 

Statutory  duty  to  fence  in,  see  Fences,  32. 

—  provisions  in,  limiting  amount  recoverable 

for  causing  death,  see  Death  by  Wrong- 
ful Act.  370. 

relative  to  abandonment  of  stations, 

see  Stations  and  Depots,  53. 

—  regulation  of  grade  crossings  in,  see  Cross- 

ing OF  Streets ;vnd  Highways,  91. 
Taking  land  for  streets  and  laying  out  roads 

in,  see  Streets  and  Highways,  25. 
Taxation  in  aid  of  railways  in,  see  Municipal 

and  Local  Aid,  421. 
When  negligence  of  parent  is  imputable  to 

child  in,  see  Children,  Injuries  to,  125. 


NEXT  OF  KIN. 

Pleading  damage  to,  see  Death  by  Wr  /Ngful 

Act.  135. 
Right  of,  to  sue  for  damages  for  causing 

death,  see  Death  by  Wrongful  Acr,  52. 


NIGHT  WATCHMEN. 

As  fellow-servants  of  foreman,  see  Fellow- 
servants,  320. 

Liability  of  company  for  false  imprisonment 
by,  see  False  Imprisonment,  O. 


NITRO-OLTCERINE. 

Assumption  of  extra  risk  from  car  loaded 
with,  see  Emplovks,  Injuries  to.  273. 

Carelessness  in  use  of,  see  Employes,  Inju- 
ries TO,  317. 

Liability  in  case  of  explosion  of,  see  Explo- 
sions, 5. 


NOISE. 


As  an  element  of  damages,  see  Elevated 
Railways,  143;  Eminent  Domain, 
720;  Streets  and  Highways,  287. 

Caused  by  steam  railway  in  street,  damages 
for,  see  Streets  and  Highways,  255. 

Consequential  damages  for,  see  Elevated 
Railways,  102. 

Duty  to  look  and  listen  as  affected  by,  see 
Crossings,  Injuries,  etc.,  at,  1^75. 

Evidence  of  damages  by,  see  Eminent  Do- 
main, 012;  Streets  >nd  Highways, 
270. 

Measure  of  damages  for,  see  Eminent  Do- 
main, 1107. 

When  deemed  a  nuisance,  see  Nuisance,  5. 


NOMINAL  DAMAGES. 

Generally,  see  Damages,  10. 

In  actions  against  carriers,  see  Carriage  of 
Merchandise.  704,  780;  Carriage  of 
Passengers,  015. 

for  causing  death,  see  Death  by  Wrong- 
ful Act,  424-420. 

ejection  of  passengers,  see  Ejection 

of  Passengers,  104. 

flowing  lands,  see  Flooding  Lands, 

SO. 

injuries  at  station,  see  Stations  and 

Depots,  144. 

caused  by  fire,  see  Fires,  337. 

to  children,  see  Children,  Inju- 
ries to,  187. 

—  elevated  railway  cases,  see  Elevated 
Railways,  135. 

To  abutters,  see  Streets  and  Highways, 
205. 


NON-DELIVERY— NORTH  CAROLINA. 


870 


/NGFUL 


NON-DELIVERY. 

Of  goods  by  carrier,  liability  for,  see  Car- 
KiAc.K  OK  Mkkciiandisk,  281>-i}02. 

—  telegram,  liability  for,  see  Telegraph,  etc., 
Lines,  7-10. 


NONJOINDER. 

Of  defendants,  see  Parties  to  Actions,  13. 

—  husband  or  wife  as  parties,  see  Husuano 

AND  vviKK,  an. 

—  parties,  effect  of,   see  Eminent  Domain, 

2U0. 


NONPAYMENT. 

Of  damages,  injunction  for,  see  Eminent  Do- 
main, io;)4'. 

—  subscription,  forfeiture  for,  see  Subscrip- 

tions TO  Stock,  180-188. 

—  taxes,  sale  of  lands  for,  see  Taxation, 

320-330,  388. 


NON-PERFORMANCE. 

By  company,  as  a  defense  to  action  on  sub- 
scription, see  Subscriptions  to  Stock, 
157. 

Forfeiture  of  construction  contract  for,  see 
Government  Railroads,  lO. 


NONPREJUDICIAL. 

Errors,  disregarding  in  pleadings,  see  Plead- 
ing. 170. 

on  appeal,  see  Appeal,  etc.,  50-66; 

Eminent  Domain,  002-008. 

Instructions,  see  Death  by  Wrongful  Act, 
307;  Eminent  Domain,  007;  Fires, 
200. 


NON-RESIDENCE. 

Of  defendant,  as  ground  of  abatement,  see 
Abatement,  13. 

—  mortgage    trustee    vacates    office,    see 
Mortgages,  133. 

—  officers  and  directors,  as  ground  of  for- 

feiture of  franchise,  see  Charters,  80. 


NON-RESIDENTS. 

Property  of,  when  exempt  from  taxation,  see 

■  Taxation,  184. 
Right  of,  to  sue  for  causing  death,  see  Death 

BY  Wrongkll  Act,  53. 
foreign  corporations,  see  Foreign 

Corporations,  24. 
When  may  sue  or  be  sued  in  attachment,  see 

Attachment,  etc.,  7, 


NONSUIT. 

Compulsory,  on  ground  of  contributory  negli- 
gence, see  CoNTRiDuroRV  Negligence, 
88;  CRossiNcis,  Injuries,  etc.,  at.  210. 

Conclusiveness  of  judgment  of,  see  Judgment, 
20. 

On  trial  of  stock-killing  cases,  see  Animals, 
Injuries  to,  531. 

When  granted  in  action  for  injury  at  cross- 
ing, see  Crossings,  I.njuries,  etc.,  at, 
350. 

—  proper  generally,  see  Trial,  02-83. 

—  properly  ordered  in  action  for  injury  to 

passenger,  see  Street  Railways,  435. 


NON-USER. 

As  evidence  of  abandonment  of  road  or  street, 
see  Eminent  Domain,  073;  Streets  and 
Highvvay.s,  32. 

Extinguishment  of  easement  by,  see  Ease- 
ments, O. 

Of  franchise,  forfeiture  for,  see  Dissolution, 

ETC.,  7. 


NORTH  CAROLINA. 

Aid  to  railways  by  the  state,  see  State  Aid, 
28. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 277. 

Constitutionality  of  statutes  of,  as  to  mu- 
nicipal aid  for  railways,  see  Municipal 
AND  Local  Aid,  45. 

tax  laws  of,  see  Taxation,  41 

Constitutional  provisions  in,  relative  n- 

demnation  of  land,  see  Eminent  Do  ..^in, 
17. 

Deductions  for  benefits  under  condemnation 
laws  of,  see  Eminent  Domain,  748. 

Injuries  to  animals  running  at  large  in,  see 
Animals,  Injuries  to,  253,  273. 

Local  assessment  upon  steam  railways  in, 
for  repairs,  paving,  etc.,  see  Streets  and 
Highways.  353. 

Mechanics'  lien  law  of,  see  Liens,  12. 
.Plaintiffs  pleadings  need  not  negative  con- 
tributory negligence   in,   see   Contribu- 
tory Negligence,  03. 

Statutes  of,  imposing  penalty  for  failure  to 
forward  goods  promptly,  see  Carriage  of 
Merchandise,  40. 

relative  to  connecting  lines,  see  Con- 
necting Lines,  2. 

distribution  of  damages  for  caus- 
ing death,  see  Death  by  Wrongful  Acr, 
00. 

Taxation  in  aid  of  railways  in,  see  Munici- 
pal AND  Local  Aid,  422. 


5! 


g 


NORTH    DAKOTA— NORTHERN   PAC.    R.   CO.,  1-3. 


NORTH  DAKOTA. 

Constitutionality  of  tax  laws  of,  see  Taxa- 
■iioN.  42. 

Contributory  negligence  need  not  be  nega- 
tived in,  see  Kiu'.s,  1112. 


II 

> 


1 


NORTHERN  TAC.  R.  CO. 
Federal   grants  to,  sec  L/.ni>  Grants,  70- 

1.  Construction  iindcft'cct  «>f'cliiir- 
tcr. — The  charter  of  the  company,  ob- 
tained from  the  general  government,  does 
not  exempt  its  right  of  way  from  the  opera- 
tion of  the  laws  of  the  state  of  Minnesota, 
and  forhid  a  railroad  company  organized 
under  tiie  general  law  of  the  slate  to  exer- 
cise the  right  of  eminent  domain.  North- 
ern J'ac.  A'.  Co.  V.  .SV.  /',iu/,  M.  &^  M.  A: 
Co.,  I  /l/n.  &•  Eng.  R.  Cas.  12,  i  McCrary 
(U.  S.)  302,  3  Fed.  Rep.  702. 

2.  of  a«tN  of  eoii{;rcs8,  gener- 
ally.—The  act  of  congress  granting  public 
lands  to  aid  in  the  construction  of  the  road 
was  a  conveyance  of  said  lands  which  took 
eflcct  upon  the  location  of  the  line  of  the 
road,  and  after  such  location  the  company 
could  sell  the  lands  and  protect  its  posses- 
sion of  the  same  by  actions  of  ejectment. 
Northern  Pac.  R.  Co.  v.  Lilly,  24  Am.  &* 
En^.  R.  Cas.  111,6  Mont.  6$,  c)  Pac.  Rep. 
116.— Distinguishing  Northern  Pac.  R. 
Co.  7\  Majors,  5  Mont.  iii. 

The  railroad  having  been  made  a  United 
States  government  and  post  road  by  act  of 
congress,  its  franchise  carries  with  it  every- 
thing useful  and  necessary  to  its  operation  ; 
and  an  office  safe  at  one  of  its  depots,  in 
which  daily  receipts  of  money  and  valuable 
papers  ;ire  kept,  cannot  be  seized  on  execu- 
tion, whether  a  law  of  the  territory  author- 
izes such  seizure  or  not.  Northern  Pac.  R. 
Co.  v.  Shimmell,  24  Am.  &•  Eng.  R.  Cas.  i , 
6  Mont.  161.  9  Pac.  Rep.  889. 

3.  act  of  July  2,  1804.— Under 

the  original  Act  of  Congress  of  July  2, 
1864,  the  company  is  not  authorized  to  con- 
struct a  branch  from  its  main  line  via  Co- 
lumbia river  valley  to  Portland  and  thence 
to  Puget  sound,  and  by  locating  such 
branch  the  company  acquired  no  right  to 
government  lands  along  the  road  ;  but  un- 
der the  resolution  of  May  31,  1870,  author- 
izing it  to  locate  and  construct  its  main 
road  to  some  point  on  Puget. sound  via  the 
valley  of  Columbia  river,  with  a  right  to 
locate    its  branch   from   some    convenient 


point  on  its  main  line  across  the  Cascade 
mountains  to  Puget  sound,  it  did  acquire 
a  right  to  such  lands,  but  did  not  acquire 
the  right  to  lands  which  had  been  disposed 
of  after  the  act  of  1864.  United  States  v. 
Northern  Pac.  R.  Co..  152  ^'.  .V.  284,  i4.S///>. 
Ct.  Rep.  598.  -  yuoTiNG  St.  I'aul  iS:  P.  K. 
Co.  V.  Northern  Pac.  U.  Co.,  139  U.  S.  1. 

Act  of  Congress  o*  July  2,  1864,  incor|)o- 
rating  the  company,  and  the  acts  amenda- 
tory thereof,  are  a  grant  by  the  public  to  a 
private  corporation,  and  must  therefore  be 
construed  most  strictly  against  the  latter,  so 
that  no  authority,  right,  or  privilege  can  be 
held  to  pass  thereby  unless  the  same  is 
therein  plainly  ex[)resscd  or  clearly  implied. 
Hughes  V.  Northern  Pac.  R.  Co.,  1 3  Am.  iS>» 
Eng.  R.  Cas.  157,9  Sawy.  {U,  S.)  313, 18 Eed. 
Rep.  106. 

Plaintiffs  based  their  title  to  the  land 
in  controversy,  for  which  they  brought 
ejectment,  upon  a  deed  from  the  company. 
That  corporation,  it  was  claimed,  had  ac- 
quired its  title  by  virtue  of  a  selection  of 
certain  lands  (in  which  the  tract  in  dispute 
was  included),  and  the  entry  and  acceptance 
thereof  by  the  United  States  land  olFice  at 
Bozeman,  Montana,  //eld,  under  the  Act  of 
Congress  of  July  2,  1864,  ^  3,  relating  to  the 
Northern  Pacific  railroad  company,  that, 
until  the  selection  of  the  lands  aforesaid 
had  been  examined  and  approved  by  the 
secretary  of  the  interior,  through  the  land 
office  at  Washington,  D.  C,  no  title  to  said 
land  could  vest  in  the  company,  and  that 
therefore  plaintiffs  could  not  recover.  El-, 
ling  V.  Thexton,  7  Mont.  330,  16  Pac.  /iep. 

93'- 

The  company  was  authorized  by  said  acts 
"  to  lay  out,  locate,  construct,  furnish,  main- 
tain, and  enjoy  a  continuous  railway"  from 
Lake  Superior  to  Portland,  Oregon,  "  with 
all  powers,  privileges,  and  immunities  nec- 
essary to  carry  into  effect  the  purpose"  of 
said  acts,  the  same  "  to  be  constructed  in  a 
substantial  and  workmanlike  manner,  with 
all  the  necessary  draws,  *  ♦  *  bridges,  etc., 
*  *  *  equal  in  all  respects  to  railways  of  the 
first  class."  It  was  necessary  to  cross  the 
VVallamet  river  with  such  road  in  order  to 
reach  Portland  from  the  eastward,  //eld, 
that  the  right  of  the  company  to  build  and 
maintain  a  drawbridge  across  said  river  or 
other  navigable  waters  without  causing  any 
unnecessary  injury  or  obstruction  to  the 
usefulness  thereof  is  clearly  implied,  but 
that,  congress  not  having  prescribed  the  ex- 


NORTH IvKN    PAC.    R.   CO.,  4.— NOTICE. 


881 


act  location  or  particular  character  of  said 
bridge,  tlic  rinlil  of  tlic  corporation  to  con- 
struct it  is  subject  to  the  juflnnieiit  of  tlie 
proper  court  as  to  wluiher  it  is  beinj;  con- 
structed without  umiecessary  injury  to  the 
navi^jability  of  sucli  water,  ujjon  the  com- 
phiint  of  any  one  specially  injured  thereby 
or  likely  to  be.  llii^i^lus  v.  Xorlhcrn  Pac. 
A'.  Co.,  13  /Im.  &^  Eiik;;.  I\.  C,i.s;  157,9  S,ni>j'. 
(U.  S.)  313.  18  iu;/.  Kfp.  rof).-  Ukvikwinu 
Union  Pac.  K.  Co.  v.  Hall,  91  U.  S.  343. 

4.  net  ot  31iiy  .'n,  I870.-Actof 

Congress  of  May  31,  1870,  authorizin}^  the 
company  to  locate  and  construct  under  the 
pn^visions,  and  with  the  privilej^es  and 
((rants,  provided  in  its  act  of  incorporation 
of  July  2,  1864,  its  main  line  t<>  I'u^jet 
sound  via  the  Columbia  1  ivcr  is  an  approval 
and  confirmation  of  the  loca'.icju  of  its  line 
theretofore  made  by  the  company  from 
Lake  Superior  via  the  Columbia  river  and 
Portland  to  Fugct  sound.  United  States  w. 
Northern  Pac.  A'.  Co.,  14  Sa70j/,  (C/.  S.)  401, 
41  /V</.  A'ep.  842. 


NOTES. 
Taking,    in    payment,     see     Paymknt,    3 ; 
Stock,    18;    Suuscriptio.ns    to    Stock, 
21,22,  134. 

See  Bills,  Notes,  and  Checks. 


NOTICE. 

At  railway  crossings,  see  Turnpikes,  4. 
Before  granting  right  to  lay  railroad  tracks 
in  streets,  see  Street  Railways,  21. 

—  suit,  see  Actions,  R;  Fires,   142;   Nui- 

sance, HO. 

By  initial  carrier,  of  second  carrier's  refusal 
to  receive  goods,  see  Carriage  ok  Mer- 
chandise, 505. 

to  second  carrier,  see  Carriage  of 

Livestock,  102. 

—  passenger,  of  possession  of  valuables,  see 

Si.EKi'iNC,  Ere,  Companies,  30. 

Competency  of  evidence  of,  see  Evidence, 
73. 

Constructive,  of  consolidation,  see  Consoli- 
dation, 30. 

Disclaiming  liability,  effect  of,  see  Sleeping, 
Eic,  Companies,  28,  21). 

Effect  of  record  of  deed  as.  see  Deeds,  8. 

Entry  by  company  without,  trespass  for,  see 
Eminent  Domain,  1057. 

Evidence  of  declarations  showing,  see  Evi- 
dence, 211>. 

Failure  to  act  oa.  when  contributory  negli- 
gence, see  Employes,  Injuries  to,  300. 
6  D.  R.  D.— 56 


Judicial,    see    Animals,   Injckikh   to,   407; 
r.VlliEM'K,  08-1  15. 

Objection  to  want  of,  how  to  be  taken,  si-e 

I'.MiNKNi  Domain,  Oil. 
Of  accident,  penalty  for  failure  to  give,  sec 

I'KNAI.TIES,  4. 

to    insurance  company,  see    Accident 

Insurance,  8. 

—  allotment  of  stock,  necessity  of,  see  Suii- 

SCRinioNS   TO  SI'OCK,    1  I. 

—  amendment,  to  adverse  parties,  see  I'i.eah- 

iNo,  H13. 

—  appeal,  SVC  Appeal  and  Ekrok,  131;  Emi- 

nent Domain,  038-040;  Justice  ok  tiik 
I'eace,  15. 

—  application    for  change  of  route,  sec  Lo- 

cation OK  RouiE,  22« 
receiver,  see  Mortgages,  218;  Rk- 

Ci'.IVEKS,  23. 

to  set  aside   report  of  commissioners 

in  condemnation  proceedings,   sec   Emi- 
nent Domain,  813. 

—  appraisement    by  viewers,  see    Eminent 

Domain,  478. 

—  arrival  of  goods  shipped,  sec  Carriage  op 

Merchandise.    221-235,  330-338 ; 
Express  Comtanies,  41. 

waiver  of,  see  Bills  ok  Lading, 

101. 

—  assessment   on  subscriptions   to    stock, 

see  SuuscRiprioNs  to  SrocK,  <MI-72. 

—  attorneys'  lien,  see  Attorneys,  18. 

—  carriers'  rules,  see  Carriage  ok   Passen- 

gers, 05-08. 

—  claim  before  suit,  see   Animals,  Injuries 

TO,     307-312;     Carriage    ok     Live 

Stock,  81-84. 

for  laborers'  lien,  see  Liens,  40-51. 

mechanics'    lien,   see    Liens,   31- 

37. 
overcharge,   under  Texas  statute, 

see  Charges.  50. 
time  within  which   to  give,  see  Car- 
riage OK  Merchandise,  485-4O0. 
under    English    compulsory    purchase 

laws,    see     Eminent     Domain,    1133- 

11 30. 

—  condemnation  proceedings,  see   Elevated 

Railways,  33;  Eminent  Domain,  281- 
300. 

—  consent  of  city  to  use  of  street,  see  Street 

Railways,  lOO. 

—  construction  of  street  crossing,  service  of, 

on  station  agent,  see  Crossing  ok  Streets 
AND  Highways,  71. 

—  contents  of  parcels,  see   Express  Compa- 

NIES,  27. 

—  defective  coupling  apparatus,  effect  of,  see 

Employes,  Injuries  to,  399-401. 

—  defects,  allegation   of  want  of,   see  Em- 

ployes, Injuries  to,  543* 


S 


g 


882 


NOTICE. 


7^ 


1)1 

.'III 


Of  Defects,  contributory  negligence  in  re- 
maining in  service  after,  when  question 
for  jury,  see  Employes,  Injuries  to,  740- 
750. 

in  bridge,  see  Bpinr.Ks,  etc.,  34. 

fence,  see  Fences,  88. 

machinery,  duty  to  repair  after,  see 

EMPi.uYlis,  Injuries  TO,  140-148. 

or  danger,  assumption  of  risk  after,  see 

Employes,  Injuries  to,  223-24)),  70». 

instructions  as  to,  see  Employes, 

Injuries  to,  053. 

—  delay,   duty  of  carrier  to  give,  see  Car 

RiAGE  OK  Merchandise,  137. 

—  directors'  meetings,  see  Directors,  etc., 

18. 

—  election  of  directors, $  "_■  Directors,  etc., 8. 
on  question  of  aiding  railway,  see  Mu- 
nicipal AND  Local  Aid,  1 17-1 11>. 

—  employe's    minority,    see    Employes,    In- 

juries TO,  458. 

—  equities,     purchasing     stock     with,    see 

SrocK,  70. 

or  fraud,  effect  of,  on  rights  of  bona  fide 

purchaser  of  bonds,  see  Municipal  and  Lo- 
cal Aid,  358. 

—  foreclosure,  see  Mortgages,  180. 

—  hazard,  as  a  defense  to  action  for  injury 

to  employe,  see  Employes,  Injuries   to, 
554. 

—  hearing   before    supreme  court    commis- 

sioners, see  Elevated  Railways,  22. 

—  increase    of   stock,  to    stockholders,  see 

Stock,  23. 

—  infirmity  in  corporate  bonds,  see  Bonds, 

4S). 

—  intention  to  alter  a  charter,  see  Charters, 

34. 
sui m  m  jury,  see  Eminent  Domain, 

1180. 
take  lands  under  Canadian  statutes, 

see  Eminent  Domain,  1210,  1220. 
work  mi.ies.  see  Mines,  etc.,  4,  5. 

—  lien  by  material-men,  see  Liens,  35. 

—  location  of  route,  see  Location  of  Route, 

13. 

—  loss  by  fire,  see  Fire  Insurance,  7. 

—  motion  to  confirm  report  of  commissioners, 

see  Eminent  Domain,  71)0. 

—  necessity    for    highway    crossings,    see 

Crossing  of  Streets  and  Highways,  13. 

—  obstruction  of  private  ways,  see  Private 

Ways,  14. 

—  payment  of  dividends,  see  Dividends,  5. 

—  sale  of  stock  for  failure  to  pay  assessment, 

see  Subscriptions  to  Stock,  188. 

—  seizure  of  goods,  duiy  of  carrier  to  give, 

see  Carriage  of  Merchandise,  207. 

—  stockholders'  meeting,  see  Stockholders 

it. 

—  suits  pending,  see  Lis  Pendens. 


Of  time  and  place  of  deposit  of  land  damages, 

see  Emine-n"?  Domain,  3U2. 
place,  and  cause  of  injury  to  employe, 

sec  Empi.oyks,  Injuries  to,  501,  5 lO. 

—  value  of  goods  shipped,  see  Express  Com- 

panies, 28. 

On  ticket  limiting  liability  for  baggage,  effect 
of,  see  Baggage,  t)8. 

Possession  as  constructive,  see  Deeds,  f). 

Posting  about  stations,  effect  of,  see  Bag- 
gage, lOO;  Carriage  of  Merchandise, 
420. 

Power  to  limit  liability  by,  see  Carriage  of 
Live  Stock,  03  ;  Carriage  of  Merchan- 
dise, 432 ;  Carriage  of  Passengers, 
331  ;  Express  Companies,  03  ;  Limita- 
tion of  Liauilii y.  1  1-14. 

Printed  on  bill  of  lading,  effect  of,  see  Bills 
OK  Lading,  45,  40. 

Rule  requiring  consignee  to  remove  goods 
without,  see  Carriage  of  Merchandise, 
300. 

Rules  must  be  brought  to  notice  of  employe, 
see  Employes,  Injuries  to,  424. 

Sufficiency  of  service  of,  a  question  of  law, 
see  Animals,  Injuries  to,  534. 

To  agent,  when  notice  to  principal,  nee 
Agency,  31>-41. 

—  carrier,  of  dangerous  character  of  goods, 

see  Carria(;e  of  Merchandise,  194- 
108. 

intention  to  exercise  right  of  stop- 
page in  transitu,  see  Carriage  of  Mer- 
chandise, 4{)4. 

value  of  live  stock,  sec  Carriage  of 

Live  Stock,  27. 

that  goods  were  for  the  market,   see 

Carriage  of  Merchandise,  782. 

special  damages  will  be  claimed  for 

loss  of  goods,  see  Carriage  of  Merchan- 
dise, 800. 

—  company,  of  defective  appliance,  duty  of 

employe  to  give,  see  Emi-loves,  Injuries 

TO,  137,  138. 
restoration     of    highway,    see 

Streets  and  Highways,  187. 
defects,  allegation  of,  see  Employes, 

Injuries  to,  535-539. 
in  fences,  see  Animals,  Injuries 

TO.  142-144. 
incompetency  of  co-employe,   see 

Employes,  Injuries  to,  539 ;  Fellow- 
servants,  153-156. 

—  conductor,  by  employe,  of  collision,   see 

Collisions,  34. 

—  consignee,  of  arrival,   necessity  of,  see 

Carriage  of  Merchandise,  82. 

—  consignor,  of  storage  of  C.  O.  D.  goods, 

see  Carriage  of  Merchandise,  308. 

—  debtor,  of  assignment,  see   Assignment, 

19. 


d  damages, 

:o  employe, 
iOl,  510. 

Ll'RESS  COM- 

gage,  effect 

F.EDS,  f>. 

f,  see    Bag- 

I^KCHANDISE, 
ARRIAGE  OF 

F  Merciian- 
Passengers, 
3 ;  LiMiTA- 

)f,  see  Bills 

nove  goods 

SRCHANDISE, 

Df  employe, 

24. 

ion  of  law, 

4. 

indpal,    see 

Er  of  goods. 
3ISE,    194- 

l^ht  of  stop- 

GE   OK   MEK- 

Carriage  of 

narket,  see 
83. 

claimed  for 
F  Merchan- 

ice,  duty  of 

is,  Injuries 

;hway,    see 

e  EMPLoyfes, 

s,  Injuries 

nploye,  see 
> ;   Fellow- 

)llision,  see 

lity  of,  see 

I.  D.  goods, 
E,  .')»8. 
Assignment, 


NUISANCE,  1. 


883 


Of  defendant,  alleging,  in  action  on  stock 
subscription,  see  Subscriptions  to  Stock, 
Ol. 

—  directors,  when  imputable  to  corporation, 

see  Directors,  etc.,  IJ1>. 

—  employe,      of    rules    of    company,    see 

Employes,  Injuries  to,  25. 

when  notice  to  company,  see  Employes, 

Injuries  to,  139. 

—  garnishee,  of  assignment  of  debt,  see  At- 

tachment, etc..  55. 

—  intermediate  carrier,  of  arrival  of  goods, 

see  Carriage    ok    Merchandise,  507* 

—  mortgage  trustee,   effect  of,    see   Mort- 

gac-.es,  148. 

—  occupant,  before  condemning  right  of  way 

through  street,  see  Strekts  and  High- 
ways, 127. 

—  one  partner,  when  binds  firm,  see   Part- 

nership, 5. 

—  owner,   of  claim    for  laborers'    lien,   see 

Liens,  50. 

subcontractor's  claim  of   lien,   see 

Liens,  iiii. 

—  perform  contract,  see  Contracts,  09. 

—  persons  sought  to  be  bound  by  a  custom, 

see  Customs,  3. 

—  principal  debtor,  of  attachment,  see  At- 

tachment, ETC.,  43. 

—  produce    best    evidence,    see    Evidence, 

154. 

—  quit  as  a  prerequisite  to  bringing  ej'ect- 

ment,  see  Eminent  Domain,  1025. 
service  of,  in  ejectment  suits,  see  Eject- 
ment, 21. 

—  railway  company,  to  defend  action  against 

city  or  town,  see  Streets  and  Highways, 
397. 

—  servant,  of  incompetency  of  fellow- servant, 

duty  to  quit  service  after,   see  Fellow- 
servants,  159,  lOO. 

—  town,  of  intention  to  make  grade  cross- 

ing, see  Crossing  of  Streets  and  High- 
ways, 107. 

—  treat,  under  English  compulsory  purchase 

laws,      ee    Eminent    Domain,     1124- 
113*i.. 

—  vice-principal   is  notice  to  company,  see 

Fellow-servants,  83. 

not  notice  to  subordinate  servant,  see 

Fkllow-servants,  84. 


NUISANCE. 

Abatement  of,  see  Bridges,  etc.,  88  |  Ele- 
vated Railways,  Ol,  173;  Flooding 
Lands,  52. 

Action  for,  by  abutting  owner,  see  Streets 
and  Highways,  219. 


Action  for  damages  for  creation  of,  see  Emi- 
nent Domain,  991. 

Breach  of  duty  to  restore  highway  is,  see 
Streets  AND  Highways,  183. 

Cattle  yards,  when  deemed  to  be,  see  Stock 
Yards,  5. 

Created  by  independent  contractor,  liability 
for,  see  Indeiendkni  Contractors,  14. 

Culverts,  when  deemed  to  be,  see  Culverts, 
17. 

Drawbridges  are  not,  see  Bridges,  etc.,  72. 

Embankments,  when  deemed  to  be,  see  Em- 
bank.ments,  5. 

Enjoining  road  in  street  as,  see  Streets  and 
Highways,  232. 

Evidence  under  the  pleadings  in  actions  for, 
see  Pleading,  lOl. 

Obstruction  of  streets  by  hacks,  see  Hacks 
and  Hack  Links,  5. 

On  city  streets,  liability  for  creating,  see 
Streets  and  Highways,  174. 

Ordinances  to  prevent,  see  Municipal  Corpo- 
rations, 18. 

Prosecutions  for,  see  Criminal  Law,  31. 

Right  of  abutting  owner  to  enjoin,  see  Ele- 
vated Railways,  70. 

Road  constructed  without  authority  is  a,  see 
Elevated  Railways,  53. 

When  limitation  begins  to  run  in  actions 
for,  see  Limitations  of  Actions,  30, 

I.  WHAT  CONSTITUTES  A  NUISANCE.        883 

1.  /«  Genera/. 883 

2.  Particular  Instances 886 

3.  Continuance  of  Nuisance 892 

n.  REMEDIES 893 

1 .  In  General. / . . .  893 

2.  Injunction 894 

3.  Action  for  Damages 897 

L  WHAT  CONSTITUTES  A  NUISANCE. 

I.  In  General. 

1.  Power  to  declare  what  is  a  nui- 
sance."'— Under  provisions  in  a  town  char- 
ter giving  the  board  of  trustees  the  control 
and  supervision  of  highways,  streets,  alleys, 
public  grounds,  and  pari<s  within  its  limits, 
and  power  "  to  define  and  declare  what  shall 
be  deemed  nuisances,  and  to  prevent  and 
abate  the  same,  and  to  provide  for  the  pun- 
ishment of  offenders  against  any  order  or 

*  Le.nislalure  may  authorize  business  which 
would  otherwise  be  nuisance,  sec  note,  9  L.  R. 
A.  713. 

How  far  legislative  authorization  will  exempt 
from  liability  to  suit  for  creating  nuisance,  see 
note,  36  Am.  &  Eng.  R.  Cas.  558. 


i 


g 


^ 


884 


NUISANCE,  2. 


w 


i     i 

it    ?■ 
Hi  I 


■'II 


ill!! 


ordinance  passed  concerning  tlie  same,  by 
fine  or  impiisonnient,  or  both,"  the  town 
authorities  are  warranted  in  passing  an  ordi- 
nance declaring  the  use  of  steam  as  a  motive 
power  to  propel  any  street-car  or  other 
vehicle  upon  any  stieet  or  horse  railway  in 
the  town  to  be  a  nuisance,  and  to  prohibit 
under  penalties,  for  the  violation  of  such  an 
oidinaiicc,  in  the  absence  of  any  legislative 
grant  authorizing  it,  tiie  use  of  steam  as  a 
motive  power  in  propelling  street-cars. 
North  Chicago  City  K.  Co.  v.  Lake  View,  1 1 
Am.  Sr*  Eng.  K.  Cas.  42,  105  ///.  207. 

The  power  to  declare  nuisances  and  pro- 
vide for  their  removal  does  not  include  the 
doing  of  an  act  which  may  be  a  nuisance.  It 
is  confined  to  stationary  nuisances,  such  as 
can  be  removed.  State  v.  Mayor,  etc.,  of 
Jersey  City,  29  N.  J.  L.  170. 

An  ordinance  declaring  the  running  of 
any  locomotive  or  train  in  the  city  at  a 
greater  rate  than  one  mile  in  six  minutes, 
or  declaring  the  stopping  of  a  train  upon  the 
track  of  a  railroad  authorized  by  law,  where 
the  track  does  not  cross  a  street  or  public 
square,  a  removable  nuisance,  is  not  a  fair 
or  legal  exercise  of  the  power  to  declare 
nuisances  and  provide  for  their  removal. 
State  V.  Mayor,  etc.,  of  Jersey  City,  29  N.  J.  L. 
170. — Reconciled  in  Bluedorn  v.  Missouri 
Pac.  R.  Co.,  108  Mo.  439. 

The  common  council  may  not  declare 
anything  a  nuisance  which  cannot  be  detri- 
mental to  the  health  of  the  city,  or  danger- 
ous to  its  citizens,  or  a  public  inconvenience, 
as  stop'ping  a  train  for  one  moment  on  a 
track  where  it  does  not  cross  a  street  or 
public  square,  and  even  then  not  where  the 
thing  complained  of  is  expressly  authorized 
by  the  legislative  power  of  the  state.  State 
v.  Mayor,  etc.,  of  Jersey.  City,  29  N.  J.  L,  170. 

A  municipal  coi'poration  cannot  treat  a 
particular  thing  as  a  nuisance  without  gen- 
eral legislation  declaring  all  things  of  its 
kind  to  bs  such.  Laviosa  v.  Chicago,  St. 
L.  &•  A'.  O.  R.  Co.,  (La.)  4  Am.  &-  Eng.  H. 
Cas.  128. 

Whether  the  construction  of  a  railroad  in  a 
street  will  operate  beneficially  or  injuriously 
to  the  public  right  of  way,  and  whether  it 
will  prove  a  public  benefit  or  a  public  nui- 
sance, are  questions  to  be  determined  by 
the  legislature  and  by  the  city  council.  If 
the  road  prove  an  obstruction  to  the  street, 
and  a  public  inconvenience  and  injury,  it  is 
not  punishable  as  a  nuisance  if  constructed 
as  prescribed  by  the  charter.    Hinchman  v. 


Pater  son  Horse  R.  Co.,  17  N.  J.  Eq.  75. — 
Followed  in  Fogg  v.  Nevada  C.  O.  R.  Co., 
43  Am.  &  Eng.  R.  Cas.  105,  20  Ncv.  429,  23 
Pac.  Rep.  840.  Quoted  in  Morris  &  E.  R. 
Co.  V.  Prudden,  20  N.  J.  Eq.  530;  Morris  & 

E.  R.  Co.  V.  Hudson  Tunnel  R.  Co.,  25  N.  J. 
Eq.  384. 

2.  What  may  be  (Iccnied  a  iini- 
saiice. — (i)  Generally.  —  The  construction 
and  maintenance  of  a  street  railway  by  an 
individuiil  or  corporation  without  legislative 
authority  constitute  a  i)ublic  nuisance,  and 
subject  such  individual  or  corporation  to  an 
action  in  favor  of  any  person  sustaining  spe- 
cial injury.  Fanning  v.  Osborne,  25  Am.  &• 
Eng.  R.  Cas.  252,  102  N.  V.  441,  7  N.  E. 
Rep.  yyj,  2  ^V.  Y.  S.  R.  64 ;  affirming  in 
part  34  Hun  121.     Forty-second  St.  (S^  G.  S. 

F.  R.  Co.  v.  Thirty-fourth  St.  R.  Co..  20  /. 
Sir*  S.  {N.  Y.)  252 ;  appeal  dismissed  in  102 
N.  Y.  691,  «/<»;«.— Following  Davis  v. 
Mayor, etc.,  of  N.  Y.,  14N.  Y.  506;  Milhaur/. 
Sharp,  27  N.  Y.  611. — Attorney-General  v. 
Lombard  &»  S.  St.  Pass.  R.  Co.,  10  Phila, 
{Pa.)  352. 

But  a  private  individual  cannot  maintain 
an  action  to  abate  an  unauthorized  act  as  a 
nuisance  unless  he  is  specially  injured  there- 
by. Astor  V.  New  York  Arcade  R.  Co.,  3  A'. 
Y.  S.  R.  188. 

A  nuisance,  in  legal  phraseology,  is  a 
term  applied  to  that  class  of  wrongs  that 
arise  from  the  unreasonable,  unwarrantable, 
or  unlawful  use  by  a  person  of  his  property, 
real  or  personal.  Every  enjoyment  by  him 
of  his  own  property,  which  violates  the 
rights  of  another,  is  a  nuisance.  George  v. 
Wabash  Western  R.  Co.,  40  aMo.  App.  433. 

Where  a  person  or  corporation  is  vested 
with  authority  by  the  legislature  to  do  an 
act,  it  will  be  protected  from  all  responsi- 
bility, and  liable  to  no  suit  at  law  or  in  equity, 
provided  what  it  is  authorized  to  do  is  done 
carefully  and  skilfully,  though  without  such 
authority  it  would  have  been  a  nuisance; 
but  if  done  carelessly  and  unskilfully,  and 
damages  result  from  such  carelessness  and 
want  of  skill,  it  will  be  responsible.  Taylor 
V.  Baltimore  &*  O.  h.  Co.,  39  Am.  &•  Eng, 
R.  Cas.  259,  33  W.  Va.  39,  10  S.  E.  Rep. 
29.— Quoting  Spencer  v.  Point  Pleasant  & 
O.  R.  Co.,  23  W.  Va.  427. 

A  company  is  liable  to  an  action  as  for  a 
nuisance  for  using  its  rights  so  as  to  injure 
a  neighboring  landowner  where  it  might 
use  them  without  such  injury.  Nor  on  v. 
London  6-  A'.  W.  R.  Co.,  9  Ch.  £,.  623,  47 


NUISANCE,  3. 


885 


.  Eq.  7S.- 
O.  R.  Co., 

cv.  429,  23 
|ris&  E.  R. 

;  MQrris  & 
|,o.,  25  N.  J. 

(I   a   iiiii- 

onstructiijii 
ilway  by  an 
t  legislative 
isaiice,  and 
ration  to  an 
taining  spe- 
25  Am.  &r* 
41,  7  TV.  E. 
ffirming  in 
St.  &0  G.  S. 
!.  Co..  20  /. 
isseii  in  102 
Davis  V. 
Milhau  V. 
'-General  v. 
?.,  10  Phila. 

lot  maintain 
ized  act  as  a 
jured  there- 
in. Co.,  3  A'. 

;eology,  is  a 
wrongs  that 
warrantable, 
his  property, 
nent  by  him 
violates  the 
;.  George  v. 
.  App.  433- 
on  is  vested 
ire  to  do  an 
all  responsi- 

or  in  equity, 
Lo  do  is  done 
without  such 

a  nuisance; 
skilfully,  and 
lessness  and 
ible.  Taylor 
4m,  &•  Eng. 
)  S.  E.  Rep. 
It  Pleasant  & 

tion  as  for  a 
)  as  to  injure 
;rc  it  might 
.  Nor  on  v. 
h.  L,.  623,  47 


L.  /.  Ch.  D.  859,  13  Ch.  D.  268,  3  Ry.  &•  C. 
T.  Cas.  xxix. 

It  seems  that  the  powers  granted  to  rail- 
road corporations  are  to  be  exercised  in 
strict  conformity  to  private  rights,  and  under 
the  same  responsibility, save  in  some  excep- 
tional cases,  as  if  the  acts  done  in  execution 
of  such  powers  were  done  by  an  individual. 
Bool  A  V  Rome,  IV.&^O.  T.  R.  Co.,  140  A^.  V. 
267,  jS  A^.  Y.  S.  R.  656,  35  A^.  E.  Rip.  592  ; 
mersing  44  A^.  Y.  S.  R.  9. — FOLLOWING 
Cogswell  V.  New  York.  N.  H.  &  H.  R.  Co., 
103  N.  Y.  10.  Not  following  Bellinger 
V.  New  York  C.  R.  Co.,  23  N.  Y.  42. 

(2)  Illustrations, — A  coal  shed  for  the 
loading,  unloading,  and  storing  of  coal  by 
the  use  of  machinery,  though  not  a  nuisance 
per  se,  may  be  such  from  the  particular  lo- 
cality in  which  it  is  situated,  as  in  a  thickly 
populated  part  of  a  city.  IVylie  v.  Elwood, 
134  ///.  281,  25  A.  E.  Rep.  570. 

It  is  the  duty  of  a  railroad  company  to 
cause  signals  to  be  given  where  the  safety 
-  of  travelers  on  intersecting  roads  demands 
tiiat  a  warning  should  be  given  of  approach- 
ing trains,  and  a  habitual  failure  to  give 
such  signals  or  warnings  is  an  offense 
against  the  public,  an  indictable  nuisance. 
Louisville  &*  N.  R.  Co.  v.  Com,,  13  Bus/i 
(Ay.)  388.— Followed  in  Louisville,  C.  & 
L.  R.  Co.  V.  Com.,  14  Am.  &  Eng.  R.  Cas. 
613.  80  Ky.  143,  44  Am.  Rep.  468.  Re- 
viewed IN  Grand  Trunk  R.  Co.  f.  Ives,  144 
U.  S.  408. 

Branches  of  trees  standing  upon  land  ad- 
joining a  right  of  way  of  a  company,  which 
overhang  it  to  such  an  extent  as  to  obscure 
the  view  of  its  engineers  in  maintaining  a 
lookout,  area  nuisance  which  may  be  abated 
by  the  company  by  trimming  the  branches 
off  to  the  line  of  the  division  fence  without 
notice  to  the  landowner.  Hickey  v.  Mich- 
^'<in  C.  R.  Co.,  96  Mich.  498.  55  N.  IV,  Rep. 
9S9.— Quoting  Earl  of  Lonsdale  v.  Nelson, 
2  H.  &  C.  302. 

The  fact  that  the  company's  road-master 
offers  the  landowner  $10  to  remove  the  trees, 
which  he  refuses  to  accept,  will  not  confer 
upon  him  the  right  to  exact  further  no- 
tice before  the  removal  of  the  overhanging 
branches  by  the  company.  Hickey  v.  Mich- 
igan C,  R.  Co.,  96  Mich.  498,  55  N,  W.  Rep. 
989. 

Wiiere  a  company  has  constructed  an 
errihankment  in  sncli  a  way  as  to  be  a  nui- 
sance, a  subsequent  statute  which  nitifies 
and  confirms  "  the  location  "  of  the  railroad 


"  as  actually  laid  out  and  constructed  "  does 
not  relieve  the  company  from  liability  for 
the  nuisance  already  created.  Salem  v. 
Eastern  R.  Co.,  98  Mass.  431. 

The  power  granted  to  the  city  of  St. 
Louis  by  its  charter  to  regulate  the  use  of 
streets  extends  to  public  uses  only,  and  does 
not  authorize  an  ordinance  permitting  a  pri- 
vate corporation  to  build  a  track  and  run 
trains  on  the  streets  for  the  transaction  of 
private  business ;  and  such  track  constitutes 
a  public  nuisance.  Glaessner  v.  Anhenser 
Busch  Brew.  Assoc,  100  Mo.  508.  13  S.  W. 
Kep.  joy,  —  Distinguishing  Porter  v. 
North  Mo.  R.  Co.,  33  Mo.  128;  Randle  v. 
Pacific  R.  Co.,  65  Mo.  325  ;  Cross  v.  St. 
Louis,  K.  C.  &  N.  R.  Co.,  77  Mo.  318. 

Defendant  corporation  maintained  and 
operated  a  street  railway  since  1875  for  the 
transportation  of  freight  in  connection  with 
its  private  business  under  a  contract  with  a 
street-railway  company  which  had  formerly 
operated  said  railway  as  a  branch  line. 
Held,  that  the  contract  is  no  defense  to  an 
action  by  an  abutting  property  owner,  and 
that  the  transfer  of  the  franchise  of  the 
street-railway  company  as  a  common  carrier 
for  the  purposf  of  enabling  the  grantee  to 
operate  the  road  for  private  purposes  was 
invalid.  Fanning  v.  Osborne,  25  Am,  &• 
Eng,  R.  Cas.  252,  102  A'^,  Y.  441,  7  N.  E. 
Bep.  307,  2  A';  Y.  S,  R.  64  .  ffirming  in 
part  34  Hun  121. 

Defendant  company  erectec  an  engine 
house  and  coal  bins  for  its  road  on  a  lot 
adjoining  plaintiff's  dwelling  house.  The 
smoke,  soot,  cinders,  and  coal  dust  filled 
plaintiff's  house,  rendering  the  air  offensive 
and  unwholesome  and  the  house  untenant- 
able. Held,  that  the  engine  house  as  used 
was  a  nuisance,  and  that  the  authority  con- 
ferred upon  the  company  by  N.  Y.  Act  of 
1848,  ch.  143,  §  6,  to  run  its  trains  over  the 
Harlem  railroad  was  not  a  legislative  sanc- 
tion to  the  committing  of  such  a  nuisance. 
Cogswell  v.  New  York,  N.  H.  &•  H.  R.  Co., 
103  N.  r.  10.  3  A^.  Y.  S.  R.  56,  8  IV.  E.  Rep. 
537  ;  rei'ersing  \6  /.  &^  S.  t,\. 

li.  Wlint  isiiot  aiiiiLsaiicc— (!)  Gen- 
erally.— A  public  nuisance  must  be  occa- 
sioned by  acts  done  in  violation  of  law.  A 
work  which  is  authorized  by  law  cannot  be 
a  nuisance.  Hinchman  v.  Paterson  Horse 
R.  Co.,  \7  N.  J.  Eq.JS-  New  Albany  &*  S. 
R.  Co.  v.  Higman,  18  Ind.  77.  Payne  v. 
Kansax  City,  St.  J.  &^  C.  li.  R.  Co.,  1 1 2  Mo. 
6,  20  S.  VV.  Rep.  322.     Attorney-General  ex 


I 

I 


886 


NUISANCE,  4. 


I 


rd.  V.  New  York  <S-  L.  B.  R.  Co.,  24  N.J. 
Eq.  49.  Sargent  v.  Ohio  (&«•  M.  R.  Co.,  i 
Handy  (Ohio)  52.  /^/rj/  Baptist  Church  v. 
Utica  (S^•  5.  R.  Co.,  6  i5rt/-^.  (A'.  K)  313. 
5/^///  Avenue  R.  Co.  v.  Gilbert  El.  R.  Co.,  11 
J.  <3-  5.  (.V.  Y.)  292.  3  /iiJ(fi.  iV.  Cas.  372 ; 
reversing  <)  J.&r*  S.  489.  Carson  v.  Central 
R.  Co.,  35  CVj/.  325, 

A  railroad  is  not  a  public  nuisance,  and 
no  right  of  action  can  arise  against  the  com- 
pany until  by  negligence  or  improper  man- 
agement it  does  or  suffers  to  be  done  some- 
tliing  injurious  to  the  abutting  proprietor 
which  the  permission  to  occupy  the  street 
would  not  justify.  Grand  Rapids  &*  I.  R. 
Co.  V.  Heisel,  38  Mich.  62. 

A  railroad  company  has  not  such  property 
in  its  workmen,  or  in  their  services,  that  it 
can,  under  the  ordinary  jurisdiction  of  the 
court  of  chancery,  maintain  a  suit,  as  for  a 
nuisance,  against  a  saloon  keeper  at  whose 
place  the  men  voluntarily  buy  intoxicating 
liquors  and  thereby  get  so  drunk  as  to  be 
unfit  for  work ;  and  tliere  is  nothing  in  the 
provisions  of  the  Code  of  Washington  Ter- 
ritory which  enlarges  the  equitable  jurisdic- 
tion in  this  respect.  Northern  Pac.  R.  Co, 
V.  Whalen,  149  U.  S.  157,  13  Sup.  Ct.  Rep. 
822. 

PlaintifT  commenced  suit  to  restrain  de- 
fendant company  from  using  a  lot  adjoining 
his  dwelling  house  for  depot  purposes  in  a 
city.  It  was  found  as  a  fact  that  defendant's 
use  of  the  lot  interferes  with  the  beneficial 
use  of  plaintiff's  house,  and  is  a  disturb- 
ance and  injury  thereto;  bi;t  it  was  also 
found  that  such  use  is  confined  entirely  to 
the  ordinary  operation  and  maintenance  of 
a  depot  for  passengers  and  freight,  and  a 
yard  fot  tlie  accommodation  of  incoming 
and  outgoing  trains,  and  to  such  drilling 
operations  as  are  absolutely  necessary  to  the 
proper  transaction  of  its  business  and  to 
none  other  ;  that  proper  skill  and  care  had 
been  observed,  having  a  due  regard  to  the 
neighboring  property.  Held,  that  he  was 
not  entitled  to  the  relief  sought  on  the 
ground  that  it  constituted  a  nuisance. 
Briesen  v.  Long  Island  R.  Co.,  31  Hun  {N. 
Y.)  112, — Disapproving  Bellemont  &  O. 
Co.  V.  Fifth  Baptist  Church,  27  Alb.  L.  J. 
488. 

(2)  Nuisance  per  se. — A  railroad  through 
a  populous  village  or  city  is  not  per  se  a 
nuisance.  Hentz  v.  Long  Island  R.  Co.,  13 
Barb.  (N.  Y.)  646.— Following  Drake  v. 
Hudson  Kiver  R.  Co.,  7  Barl).  508. — Ander- 


son V.  Rochester,  L.  &*  N.  F.  R.  Co.,  9  How- 
Pr.  {N.  K)  553.— Approving  Hamilton  v. 
New  York  &  H.  R.  Co.,  9  Paige  (N.  Y.)  171 ; 
Lexington  &  O.  R.  Co.  v.  Applegate,  8  Dana 
(Ky.)  289 ;  Drake  v.  Hudson  River  R.  Co., 
7  Barb.  508. — Geiger  v.  Filor,  8  Fla.  325. 
Peterson  v.  Navy  Yard,  B.  S.  &^  F.  R.  Co., 
5  Phila.  {Pa.)  199. 

An  authorized  railroad  in  a  city  is  not 
per  se  a  nuisance.  But  it  is  otherwise  when 
the  railroad  is  constructed  without  requisite 
authority.  Wetmore  v.  Story,  22  Barb.  {N. 
F.)  414.  Randle  v.  Pacific  R.  Ct».,  65  Mo. 
325.— Distinguishing  Fitch  v.  Pacific  R. 
Co.,  45  Mo.  322. — Distinguished  in  Cross 
V.  St.  Louis,  K.  C.  &  N.  R.  Co.,  14  Am.  & 
Eng.  R.  Cas.  123,  •]"]  Mo.  318  ;  Glaessner  w. 
Anheuser-Busch  Brew.  Assoc,  100  Mo.  508, 
13  S.  W.  Rep.  707. 

The  annoyance  arising  from  the  necessary 
use  of  a  railroad  is  not  a  nuisance  per  se. 
Bell  V.  Ohio  &*  P.  R.  Co.,  2$  Pa.  St.  161. 

The  construction,  by  a  railroad  corpora- 
tion, whose  road  crosses  a  higliway  below 
grade,  of  a  bridge  of  less  width  than  the 
highway,  is  not  per  se  a  nuisance.  People  v. 
New  York,  N.  H.  &«•  H.  R.  Co.,  \o  Am.  &* 
Eng.  R.  Cas.  230,  89  N.  Y.  266. 

Prior  to  the  passage  of  New  York  Act  of 
1891,  ch.  367,  which  prohibits  barbed  wire 
railroad  fences,  such  a  fence  along  a  railroad 
track  was  not /^r  i'^  a  nuisance.  It  would 
depend  upon  the  circumstances  and  facts  of 
the  case.  Guilfoos  v.  New  York  C.  <S-»  H.  R. 
R.  Co.,  69  Hun  593,  53  N.  Y.  S.  R.  538, 

A  railroad  is  noX-per  se  a  nuisance.  Nor 
is  the  use  of  a  street  in  a  city,  for  a  railroad 
track,  in  such  a  manner  as  not  to  abridije 
or  obstruct  the  right  of  passage  and  repas- 
sage  for  other  purposes,  such  an  exclusive 
ap[)ropriation  of  the  street  as  to  amount  to 
a  nuisance  or  a  purpresture.  Drake  v. 
Hudson  River  R.  Co.,  7  Barb.  (N.  Y.)  508. — 
Approved  in  Anderson  v.  Rochester,  L.  & 
N.  F.  R.  Co.,  9  How.  Pr.  (N.  Y.)  553.  Fol- 
lowed in  Hentz  v.  Long  Island  R.  Co.,  13 
Barb.  646. 

2.  Particular  Instances. 

4.  Tilings  obiiuxioiis  to  comfort, 
generally. — Where  the  use  of  steam  en- 
gines to  draw  trains  over  the  streets  of  a 
city  is  authorized  by  the  legislature  and  by 
the  ordinances  of  tiie  city,  the  running  of 
trains  cannot  be  abated  as  a  public  nuisance 
under  Georgia  Code,  even  though  it  tend 


NUISANCE,  O. 


887 


o.,  9  ffoiv- 
iniilton  V. 

^.Y.)i7i: 
te,8  Dana 
rer  R.  Co., 
F/a.  325. 
F.  A'.  Co., 

ity  is  not 
wise  when 
t  requisite 
Bar6.  (JV. 
o.,  65  A/o. 
Pacific  R, 
D  IN  Cross 
14  Am.  & 
aessner  v. 
>o  Mo.  508, 

necessary 
ice  pfr  se. 
Si.  161. 
d  corpora- 
way  below 
than  the 
People  V. 
to  .^/«.  <S» 

orit  Act  of 
irbed  wire 
J  a  railroad 

It  would 
nd  facts  of 
C.  6-  //,  A'. 
V.  538. 
nee.  Nor 
a  railroad 
to  abri(l!j;e 
md  repas- 

exclusive 

amount  to 

Drake    v. 

Y.)  508.— 

:sier,  L.  & 

153-  F01-- 
R.  Co.,  13 


Bomfort, 

steam  en- 
reets  of  a 
re  and  by 
unning  of 
:  nuisance 
h  it  tend 


to  the  immediate  annoyance  of  the  citizens 
in  general.  Vason  v.  South  Carolina  R,  Co., 
42  Ga.  631. 

The  power  to  a  company  to  build  its  road 
into  a  city  and  to  construct  such  works  as 
are  necessary  for  the  completion  and  main- 
tenance of  its  road— //^/<^,  not  to  confer  the 
right  to  construct  shops  so  as  to  interfere 
with  and  disturb  the  enjoyment  of  others 
in  their  property.  Baltimore  &-  P.  R.  Co., 
V.  Fifth  Baptist  Church,  1 1  Am.  &*  Eng.  R. 
Cas.  15,  108  U.  S.  317,  2  Sup.  Ct.  Rep.  719. 
—Approved  in  Cogswell  v.  New  York,  N. 
H.  Ac  H.  R.  Co.,  3  N.  Y.  S.  R.  56.  Quoted 
IN  O'Brien  v.  Baltimore  Belt  R.  Co.,  74 
Md.  363. 

Detendant  was  a  tramway  company,  em- 
powered to  construct  two  lintJ  of  tramway 
according  to  deposited  plans,  together  with 
the  works  and  conveniences  connected 
therewith.  The  act  gave  no  compulsory 
power  for  taking  lands,  and  made  no  special 
mention  of  building  stables.  Defendant 
built  large  blocks  of  stables  near  plaintiff's 
house  for  the  horses  employed  in  drawing 
the  cars.  Plaintiff  complained  of  the  smell 
caused  by  the  stables,  and  brought  an  in- 
junction to  restrain  defendant  from  using 
the  stables.  Held,  that  although  horses 
were  necessary  for  the  working  of  the  tram- 
ways, the  company  was  not  justified  in  using 
tlie  stables  so  as  to  be  a  nuisance  tu  its 
neighbors,  and  that  it  was  no  sutlicient  de- 
fense to  say  that  it  had  taken  all  reasonable 
caie  to  prevent  it.  Rapier  v.  London  Tram- 
ways Co.,  [1893]  2  Ch.  588. 

5.  Dust,  iioiso,  odors,  smoke,  etc.* 
— (I)  Generally.  —  At  common  law,  mere 
noise  in  the  immediate  vicinity  of  the  premi- 
ses, and  especially  of  the  dwelling  house  of 
the  landowner,  may  be  of  such  a  character 
as  to  constitute  an  actionable  nuisance, 
remediable  by  an  action  on  the  case  for 
damages,  or  by  injunction.  Chicago,  Af.  &• 
St.  P.  R.  Co.  V.  Darke,  148  ///.  226,  35  N.E. 
Rep.  750. 

A  railroad  corporation,  having  a  chartered 
righ'  to  run  its  trains,  has  necessarily  the 
right  to  make  all  reasonable  and  usual 
noises  incident  thereto,  whether  occasioned 
by  the  escape  of  steam,  rattling  of  the  cars, 
or  other  causes.  IVhitntj  v.  Mtiine  C.  K. 
Co.,  69  Me.   208. — QuoTKi)   IN  Stanton  v. 


*  When  conduct  of  business  is  nuisance  ; 
emission  of  smoke,  soot,  cinders,  coal  dusl,  etc., 
ste  note,  9  L.  R.  A.  712. 


Louisville  &  N.  R,  Co.,91  Ala.  382.— i]/i?r- 
gan  V.  Norfolk  Southern  R.  Co.,  98  N.  Car. 
247,  3  S.  E.  Rep.  506.  Abbot  v.  Kalbus,  39 
Am.  <&*  Eng.  R.  Cas.  594.  74  Wis.  504,  43 
N.  W.  Rep.  367.  Moshier  v.  Utica  &•  S.  R. 
Co.,  8  Barb.  {JV.  V.)  427.  Miimford  v.  Ox- 
ford, W.  6-  VV.  R.  Co.,  I  H.  &*  N.  34.  25 
L.  J.  Ex.  265.  ay  lie  V.  Elwood,  134  ///. 
281,  25  iV.  E.  Rep.  570. 

Although  noise  may  amount  to  a  nui- 
sance, and  is  also  actionable,  yet  it  must  be 
a  very  special  case  in  which  real  estate  can 
be  injured  by  a  mere  noise,  so  as  to  sustain 
an  action  for  the  injury.  (Per  Hand,  J.) 
First  Baptist  Church  v.  Utica  &•  S.  R.  Co., 
d  Barb.  {N.  Y.)  313. 

It  is  only  where  railroad  employes  make 
unusual  and  unnecessary  noises  in  the  run- 
ning of  trains  that  the  company  is  liable  for 
injuries  resulting  therefrom.  Morgan  v. 
Central  R.  Co.,  77  Ga.  788.— DounTED  AND 
DISTINGUISHED  IN  East  Tenn.,  V.  &  G.  R. 
Co.  V.  Markens,  88  Ga.  60. 

Injuries  which  are  unavoidable  in  the 
operation  of  a  railroad  in  the  transaction  of 
its,  business,  such  as  the  sounding  of  whis- 
tles, the  emission  of  smoke  and  sparks  from 
locomotives,  the  noise  and  vibrations  inci- 
dent to  the  moving  of  trains,  annoyances 
from  the  character  or  condition  of  freight 
transported,  and  the  like,  are  the  necessary 
concomitants  of  the  use  of  the  franchises 
granted.  Costigan  v.  Pennsylvania  R.  Co., 
54  N.J.L.  233,  23  Atl.  Rep.  810.— Approv- 
ing Beseman  v.  Pennsylvania  R.  Co.,  50  N. 
J.  L.-235.  Reviewing  Bordentown  &  S.  A. 
Turnpike  Road  v.  Camden  &  A.  R.  &  T. 
Co.,  17  N.  J.  L.  ^x^,— Parrot  v.  Cincinnati, 
H.  <S-  D.  R.  Co.,  10  Ohio  St.  624.  Smith  v. 
Midland  R.  Co.,  37  L.  T.  224.  Norton  v. 
London  .S«  A'.  IV.  R.  Co.,  9  Ch.  D.  623,  47 
L.J.  Ch.  D.  S59,  3  Ry.  &•  C.  T.  Cas.  xviii. 

The  emission  of  smoke  and  no.xious 
vapor  during  the  operations  of  cleaning  the 
engines  and  relighting  the  engine  fires,  an- 
noying the  owiie-  of  a  mansion  house  ad- 
joining the  railway  tracks,  is  not  a  neces- 
sary evil  to  the  proper  working  of  the  line, 
or  a  reasonable  user  for  the  purposes  of  the 
railway  within  the  Railways  Clauses  Act, 
1S45,  atui  such  a  nuisance  will  be  enjoined. 
Smith  \.  Midland  R.  Co.  yj  L.  T.  224,  25 
IV.  A'.  861. 

If  the  engines  of  a  railway  company  are 
constructed  on  the  principle  of  consuming 
their  own  st.iokc,  as  required  by  section  114 
of  the  Railways  Clauses  Act,  1841;.  the  com- 


5 


888 


NUISANCE,  6. 


in  'f,: 


[MA 


hS- 


n 


pany  is  not  liable  for  the  failure  of  the  en- 
gines to  consume  their  smol;e,  caused  by 
the  negligence  of  employes.  Manchester, 
S.  6-  L.  R.  Co.  V.  Wood,  6  ///;-.,  N.  S.  70,  29 
L.  J.  M.  C.  29.  2  El.  &-  El.  344. 

(2)  Illustrittioits.—hn  en^\nQ  liouse  erect- 
ed t)y  a  company  adjacent  to  plaintiff's 
dwelling  house,  and  so  used  as  practically 
to  deprive  him  of  the  use  of  the  house  as  a 
residence,  and  by  filling  It  with  smoke  and 
dust,  and  corrupting  tin    air  •  "nsive 

gases,  making  life  therein  un.c  'W<.\  md 
unsafe,  is  a  nuisance,  for  wl:'  u  .1.1  attion 
for  damages  will  lie,  and  a  court  of  equity 
will  enjoin  the  same.  Coj^uorll  v.  Ncv 
York,  N.  H.  Sir'  H.  R.  Co.,  27  Am.  ■  En^ 
R.  Cas.  376,  103  A'.  Y.  10.  8  N.  E.  Rep.  537. 
4  Cent.  Rep.  225  ;  reversing  16/.  (3^  S.  31. — 
Approving  Baltimore  &  P.  R.  Co.  v.  Fifth 
Baptist  Church,  loS  U.  S.  317.  Quoting 
Radcliff  7'.  Mayor,  etc.,  of  Brooklyn,  4  N.  Y. 
195.  Reviewing  Bellinger  7>.  New  York 
C.  R.  Co..  23  N.  Y.  42.— Applied  in  Aben- 
droth  V.  Manhattan  R.  Co.,  19  Abb.  N.  Cas. 
(N.  Y.)  247,  22  J.  &  S.  417.  Followed  in 
Li\\\TV.  Metropolitan  El.  R.  Co.,  104  N.  Y. 
268.  10  N.  E.  Rep.  528,  4  N.  Y.  S.  R.  340. 
Quoted  in  Morton  v.  Mayor,  etc.,  of  N.  Y., 
65  Hun  (N.  Y.)  32 ;  Hudson  River  Tel.  Co. 
V.  Watervliet  T.  &  R.  Co.,  48  N.   Y.  S.  R. 

417. 

Maintaining  a  power  house  to  propel  cable 
cars  on  a  lot  adjoining  plaintiff's  dwelling 
whereby  it  is  constantly  sliaken  and  injured, 
and  the  premises  covered  with  soot,  and  the 
inhabitants  annoyed  by  the  continuous 
noise,  constitutes  a  nuisance  notwithstand- 
ing the  fact  that  the  road  to  be  so  operated 
is  licensed  by  the  municipality.  7'uebnerv. 
California  St.  R.  Co.,  19  Am.  &^  Eng,  R, 
Cas.  147,  66  Ca/.  171,4  /'ac.  Rep.  11 62. 

If  one  is  injured  in  the  enjoyment  of  his 
residence  in  a  populous  part  of  a  city  from 
tiie  erection  and  operation  of  a  large  coal 
shed,  by  noises  from  tiie  use  of  machinery, 
and  the  grinding  of  coal  in  being  moved, 
loaded,  or  unloaded,  and  from  deposit  of 
(lust,  etc.,  he  may  have  an  action,  and  it  is 
no  defense  to  show  that  the  same  act  in- 
flicts a  like  injury  upon  many  others.  Wylie 
v.  Elwood,  1 34  ///.  281,  2  5  N.  E.  Rep.  570. 

Railroad  repair  shops  and  engine  houses 
erected  so  near  a  church  edifice  that  the 
smoke,  noise,  and  odors  therefrom  render 
the  church  unc()mfortal)le  and  quite  unen- 
durable, and  less  valuable  as  a  place  of  wor- 
ship, is  a  niiisaiue,  rendering  tiie  company 


liable  in  damages.  Baltimore  &*  P.  R.  Co. 
v.  Fifth  Rapt  is  t  Church.  11  Am.&*  Eng.  R. 
Cas.  15,  108  (/.  5.  317,  2  Sttp.  Ct.  Rep.  719. 
—Approved  in  Cogswell  v.  New  York,  N. 
H.  &  H.  R.  Co.,  103  N.  Y.  10,  8  N.  E.  Rep. 
537.  4  Cent.  Rep.  225.  Reviewed  in  Cum- 
berland T.  &  T.  Co.  V.  United  Elec.  R. 
Co.,  43  Am.  &  Eng.  R.  Cas.  194,  42  Fed. 
Rep.  273. 

An  action  may  be  maintained  for  a  nui- 
sance caused  by  running  cars  and  engines, 
ringing  bells,  blowing  off  steam,  etc.,  in  the 
neighborhood  of  a  church  during  public 
worship,  where  the  noises  annoy  and  molest 
the  congregation  worsliiping  there,  so  as 
^reatly  to  depreciate  tlie  value  of  the  house, 
Qnd  •  jnder  the  same  unfit  for  religious  wor- 
ship. Eirst  Baptist  Church  v.  Schenectady 
6-  T.  R.  Co.,  5  Barb.  (N.  Y.)  79.— Re- 
ferred  to  in  First  Baptist  Church?/.  Utica 
&  S.  R.  Co.,  6  Barb.  313. 

And  an  action  to  abate  such  nuisance 
may  be  brought  by  the  church  in  its  cor- 
porate capacity,  and  not  by  the  individuals 
worshiping  therein,  and  against  the  railroad 
company  in  its  corporate  capacity,  and  not 
its  agents  who  operate  the  road.  First 
Baptist  Church  v.  Schenectady  &•  T.  R.  Co., 
5  Barb.  {N.  Y.)  79. 

O.  Tilings  dangerous  to  liealtli, 
generally.  —  (i)  Diverting  or  pollutittg 
water. — If  a  railroad  company  contributes 
essentially  to  the  creation  of  a  nuisance,  as 
by  the  erection  of  a  dam  which  renders 
water  stagnant,  or  produces  its  overflow  so 
as  to  cause  it  to  gather  in  pools  and  become 
stagnant,  or  by  raising  it  so  as  to  cause  the 
decay  of  vegetable  matter,  whereby  unwhole- 
some gases  are  developed,  the  company  is 
liable,  although  natural  causes  combine  to 
produce  the  result.  Ft.  Worth  <S-  D.  C.  R. 
Co.  V.  Scott,  2  Tex.  A  pp.  (Civ.  Cas.)  137. 

Plaintiff  complained  that  defendant  com- 
pany had  constructed  pits  or  ditches  along 
its  road,  which  filled  with  water  and  in  hot 
weather  became  stagnant  and  offensive, 
creating  a  nuisance  which  impaired  the 
rental  value  of  his  adjoining  lands,  and  pre- 
vented sales  of  lands  for  building  purposes. 
The  company  claimed  that  a  nuisance  was 
ry«t  created,  inasmuch  as  there  was  no  house 
on  the  land  occupied  by  plaintiff  or  others. 
//(•/(/,  that  this  would  only  render  the 
measurement  of  damages  more  difficult,  but 
would  not  impair  the  right  to  abate  the 
nuisance.  Busch  v.  Xew  York,  /,.  Sr'  W. 
R.  Co.,  34  N.   Y.  S.  /'.  7,  12  A".    Y.  Siipp.  85. 


NUISANCE,  7. 


889 


The  fact  that  defendant  opened  a  culvert 
wliereby  the  water  was  carried  from  one 
side  of  its  riglit  of  way  to  the  otiier  will 
not  render  it  liable  unless  by  so  doing  the 
volume  of  water  which  would  run  into 
plaintiff's  pond  would  be  thereby  increased. 
It  appearing  that  such  was  not  the  fact,  but 
that,  by  reason  of  the  nature  of  the  ground, 
the  water  would  have  found  its  way  into  the 
pond  if  the  culvert  had  not  been  built,  a 
nonsuit  was  properly  awarded.  Brimberry 
V.  Savannah,  F.  &*  W.  R.  Co.,  ;8  Ga,  641,  3 
S.  E.  Rep.  274.— Distinguishing  Smith  v. 
Atlanta,  75  Ga.  no;  Central  R.  Co.  v.  Eng- 
lish, 73  Ga.  366. 

A  railway  bridge  over  a  highway  which 
collects  rain-water  and  allows  it  to  drip  on 
persons  passing  underneath  is  not  a  nui- 
sance injurious  to  health  within  the  meaning 
of  18  &  19  Vict.  c.  13!,  §  8,  and  the  justices 
are  wrong  in  ordering  its  abatement.  Great 
Western  R.  Co.  v.  Bishop,  L.  R.  7  Q.  B.  550, 
41  L./.  M.  C.  120,  20  W.  R.  969,  26  L.  T. 
.905.— Considered  in  Malton  Board  of 
Health  v.  Malton  Farmers  M.  &  T.  Co.,  L. 
R.  4  Ex.  D.  302,  49  L.  J.  M.  C.  90,  44  J.  P. 
155.  Distinguished  in  Bishop  Auckland 
Local  Board  v.  Bishop  Auckland  I.  &S.Co.. 
L  R.  10  Q.  B.  D.  138,  52  L.  J.  M.  C.  38,  48 
L.  T.  223,  31  W.  R.  288,  47  J-  P.  389. 

(2)  Dead  animals. — When  an  animal  is 
killed  on  the  right  of  way,  it  is  the  duty  of 
the  company,  acting  through  its  agents,  to 
make  such  a  disposition  of  the  carcass  as 
will  not  constitute  a  public  nuisance.  Bax- 
ter v.  Chicago,  R.  I.  df  P.  R.  Co.,  87  Iowa 
488,  54  N.  IV.  Rep.  350. 

Where  a  railroad  company  is  sued  for 
creating  a  nuisance  by  throwing  dead  ani- 
mals in  a  stream  whence  plaintifl  obtained 
his  water,  he  is  not  guilty  of  contributory 
negligence  in  failing  to  lessen  the  effect  of 
the  nuisance  by  removing  the  animals,  and 
especially  is  this  so  where  the  animals  are 
on  lands  belonging  to  the  company.  Gu//, 
C.  i^  S.  F.  R.  Co.  V.  Reed,  (Tex.  Civ.  App.) 
22  S.  W.  Rep.  283. 

In  an  action  for  a  nuisance  created  by 
leaving  the  carcass  of  an  animal  insuffi- 
ciently buried  on  premises  adjacent  to  those 
of  plaintiff,  the  loss  of  health  and  comfort 
of  plaintiff  and  his  family  by  reason  thereof 
are  items  of  damages.  That  plaintiff  might 
have  abated  the  nuisance  and  did  not  will 
not  prevent  his  recovery,  and  will  not  nec- 
essarily mitigate  his  damages.  Jarvis  v.  St. 
Louis,  I.  M.  &*  S.  R.  Co.,  26  Mo.  App.  253. 


Where  a  company  kills  an  animal  in  the 
operation  of  its  trains  and  allows  it  to  re- 
main on  Its  right  of  way  %o  near  a  dwelling 
house  as  to  cause  sickness  to  the  occupants, 
it  thereby  creates  a  private  nuisance  and 
becomes  liable  to  the  persons  occupying 
the  house.  And  where  a  husband  is  in  pos- 
session he  may  recover  for  sickness  of  his 
wife;  but  if  he  dies  the  cause  of  action  does 
not  survive  to  the  wife.  Ellis  v.  Kansas 
City,  St.  J.  &*  C.  B.  R.  Co.,  63  Mo.  131,  20 
A/n.  Ry.  Rep.  411. 

The  yard  master  at  a  neighboring  station 
in  employ  of  defendant  company  caused  car- 
casses of  dead  cattle  to  be  cast  into  a  bayou 
near  the  residence  of  plaintiff,  thereby 
polluting  the  water  and  the  atmosphere. 
//eld,  that  defendant  is  responsible  for 
actual  damages,  but  in  the  absence  of  proof 
of  authority  or  ratification  it  is  not  liable 
•  for  exemplary  damages.  Gulf,  C.  &-  S.  F, 
R.  Co.  V.  Reed,  48  Am.  &*  Eng.  R,  Cas.  423, 
80  Tex.  362,  15  .!>.  W.  Rep.  1105. 

Tex.  Penal  Code,  art.  390,  makes  any  one 
polluting  a  watercourse  guilty  of  an  offense 
punishable  by  fine  not  exceeding  $500.  //eld, 
that  the  servant  would  be  liable  both  civilly 
and  criminally,  the  master  only  civilly  and 
for  actual  damages.  Gulf,  C.  &*  S.  F.  /i. 
Co.  V.  Reed,  48  Am.  <S»  Eng.  R.  Cas.  423,  80 
Tex.  362,  155.   IV.  Rep.  1105. 

7.  Cattle  pens  and  stock-yards.*— 
Where  a  company  erects  Cc':le  pens  upon 
its  right  of  way,  it  should  keep  them  clean, 
and  if,  by  reason  of  negligence,  they  are 
suffered  to  become  a  nuisance,  rendering  the  • 
homes  of  those  in  the  vicinity  uncomforta- 
ble and  unwholesome,  the  company  must  re- 
spond in  damages,  /llinois  C.  R.  Co.  v.  Gra- 
bill,  50///.  241.— Approved  in  Rosenthal  v. 
Taylor,  B.&H.  R.  Co.,  79 Tex.  325.  Quoted 
IN  Chicago,  R.  I.  &  P.  R.  Co.  v.  Joliet,  79 
III.  25. 

Stock-yards  are  not  of  themselves  nui- 
sances, yet,  under  some  circumstances,  even 
when  well  kept  and  cared  for,  they  would 
be  so  considered,  as  where  they  are  located 
and  operated  alongside  of  plaintiff's  resi- 
dence, and  necessarily  produce  much  dis- 
comfort and  quite  destroy  the  reasonable 
enjoyment  of  his  property.  Bielman  v. 
Chicago,  St.  P.  &>  K.  C.  R.  Co.,  50  Mo.  App. 
'5'- 

•  Liability  of  railroad  companies  for  maintain- 
ing nuisances  in  the  form  of  coal  sheds,  stock- 
yards, machine  shops,  etc.,  see  46  Am.  &  Eng. 
R.  Cas.  521,  abstr. 


I 


■9^ 


890 


NUISANCE,  8,  9. 


;?»&; 


D -fendant  erected  stock-yards  so  near  to 
pliiiiUifT's  dwelling,  and  so  kept  them  that 
the  odors  tlierefrom  were  not  only  an  an- 
noyance, but  were  unwholesome,  threaten- 
ing the  health  of  plaintill  and  his  family. 
Held,  that  defendant  could  not  escape  lia- 
bility on  the  ground  that  the  yarJs  were 
necessary  to  the  operation  of  its  railroad, 
and  that  the  odors  could  not  be  avoided, 
there  being  no  showing  of  si  ch  facts  in  de- 
fense. Shively  v.  Cedar  Kaptds,  I.  F.  <&>»  A'. 
IV.  R.  Co.,  74  /oTi/a  169,  7  A/,t.  Si.  Kep.  471, 
37  ;V.  \V.  Rep.  133.— Distinguishing  Duns- 
more  V.  Central  Iowa  R,  Co.,  72  Iowa  182. 

Plaintiff  alleged  that  he  was  the  owner 
and  occupier  of  a  certain  hotel,  and  that  de- 
fendant company  had  erected  and  main- 
tained cattle  pens  adjoining,  wherein  a 
large  number  of  cattle  and  hogs  were  con- 
fined, and  that  the  same  were  kept  in  a 
filthy  condition,  and  that  the  noises  there-  • 
from  and  the  filthy  condition  injured  the 
comfort  and  health  of  plainiifl  and  his  fam- 
ily and  guests,  and  thereby  destroyed  his 
business  and  the  use  and  enjoyment  of  his 
property.  Held,  on  demurrer,  that  this  was 
sufficient  to  constitute  a  nuisance,  and  to 
give  a  cause  of  action.  Ohio  Sr*  M,  R.  Co.  v. 
Simon,  40  Ind.  278. 

A  company  was  authorized  among  other 
things  to  carry  cattle,  and  also  to  purchase 
any  lands  not  exceeding  fifty  acres,  in  such 
places  as  should  be  deemed  eligible,  for  the 
purpose  of  additional  stations,  yards,  and 
other  conveniences  for  receiving,  loading,  or 
keeping  any  cattle,  goods,  or  things  con- 
veyed ;  or  to  sell  such  additional  lands  and 
to  purcha"se  in  lieu  thereof  other  lands  which 
it  should  deem  more  eligible  for  said  pur- 
poses. Tlie  act  contained  no  provision  for 
compensation  in  respect  of  lands  so  pur- 
chased by  agreement.  Under  this  power 
the  company  bought  land  adjoining  one  of 
its  stations  and  used  it  as  a  yard  or  dock  for 
cattle  traffic.  To  the  occupiers  of  houses 
near  the  station  the  noise  of  the  cattle  and 
drovers  was  a  nuisance  which,  but  for  the 
act,  would  have  been  actionable.  There 
was  no  negligence  in  the  mode  in  which  the 
company  conducted  the  business.  Held, 
that  the  purpose  for  which  the  land  was  ac- 
quired being  expressly  authorized  by  the 
act,  and  being  incidental  and  necessary  to 
the  authorized  use  of  the  railway  for  the 
cattle  traffic,  the  company  was  autliorized  to 
do  what  it  did,  and  was  not  bound  to  choose 
a  site  more  convenient  to  other  persons ; 


and  that  the  adjoining  occupiers  were  not 
entitled  to  an  injunction.  London,  B.  &*  S. 
C.  R.  Co.  v.  Truman,  25  Am.  &^  Eng.  R. 
Cas.  116,  L.  R.  II  App.  Cas.  45;  reversing 
25  Ck.  D.  423.— Distinguishing  Metropoli- 
tan Asylum  Dist.  v.  Hill,  L.  R.  6  App.  Cas. 

193- 
8.  Things  (Iniigenius  lii  character. 

— Where  the  legislature  grants  a  right  of 
way  to  a  railroad  through  a  small  town,  and 
afterwards  when  the  population  and  business 
of  the  town  have  materially  increased,  there- 
by increasing  the  danger  from  moving  cars, 
a  court  of  equity  will  not  for  such  cause  en- 
join the  further  running  of  trains  thereon  as 
a  nuisance.  Chicago,  R.  I.  Sf  P.  R.  Co.  v. 
Joliet,  79  ///.  25.— Quoting  Illinois  C.  R. 
Co.  V.  Grabill,  50  111.  244. 

The  keeping  of  explosives  unsafely  guard- 
ed in  such  quantities  as  to  be  dangerous  to 
persons  and  property,  in  such  a  place  and 
under  such  circumstances  as  to  threaten 
calamity  to  the  persons  and  property  of 
others,  the  consequence  being  an  explosion 
which  causes  damage  to  the  person  or  prop- 
erty of  another,  gives  a  right  of  action. 
Wright  v.  Chicago  6-  A^.  IV.  R.  Co.,  27  ///. 
App.  200.— Quoting  AND  distinguishing 
Toledo,  W.  &  W.  R.  Co.  v.  Muthersbaugh, 
71  111.  573- 

O.  Obstructions  in  streets  and 
liilfhways.*— Where,  in  front  of  a  lot  in  a 
city,  there  is  a  public  street  in  a  condition 
to  be  used  as  such,  and  an  obstruction  is 
placed  on  the  street  by  which  its  use  as  a 
highway  is  impeded,  and  which  prevents  the 
owner  of  the  lot  from  having  free  access  to 
the  street,  he  may  maintain  an  action  to 
ab.ite  it  as  a  nuisance  and  to  recover  dam- 
ages. And  it  is  not  material  by  whom  the 
street  was  improved,  whether  by  the  public 
or  by  private  persons.  Schulte  v.  North 
Pac.  Transp.  Co.,  50  Cal.  592. — Distin- 
guishing George  v.  North  Pac.  Transp. 
Co.,  50  Cal.  589. 

The  obstruction  of  access  to  private 
property  by  a  public  road  need  not  be  ex 
advcrso,  but  it  must  be  proximate  and  not 
remote  or  indefinite  to  entitle  the  owner  of 

*  Railroads  in  streets  as  nuisances,  see  note, 
36  Am.  &  Enc!.  R.  Cas.  37. 

Abutting  owner  cannot  enjoin  the  .orstruc- 
tion  of  a  private  railroad  in  the  street,  wi<.'Ugh  it 
be  a  nuisance,  see  25  Am.  &  Eng.  R.  Cas.  257, 
abstr. 

Nuisance  caused  by  embankment  in  highway. 
Damages  for  depreciation  of  property,  see  46 
Am.  &  Eng.  R.  Cas.  51,  ab^tr. 


NUISANCE,  10. 


891 


the  property  to  compensation  for  the  loss 
of  it.  It  is  a  question  wliether  a  mere 
change  of  gradient  alone  would  be  a  proper 
subject  for  compensation.  Caiedouuin  R. 
Co.  V.  IValker.  6  Am.  &•  Eng.  R.  Qts.  518, 
L.  R.  7  j4pp.  Cas.  259.— Distinguishing 
Caledonian  R.  Co.  v.  Ogilvy,  2  Macq.  H.  L. 
Cas.  229.  Following  Metropolitan  Board 
of  Works  V.  McCarthy.  L.  R.  7  H.  L.  Cas. 
243.  Reviewing  Chamberlain  v.  West  End 
of  London  &  C.  P.  R.  Co.,  2  B.  &  S.  617; 
Beckett  v.  Midland  R.  Co.,  L.  R.  3  C.  P.  82 ; 
Ricket  V.  Metropolitan  R.  Co.,  L.  R.  2  H. 
L.  Cas.  175  ;  Hammersmith  &  C.  R.  Co.  v. 
Brand,  L.  R.  4  H.  L.  Cas.  171. 

The  placing  of  a  permanent  obstruction 
in  any  street  of  an  incorporated  city  with- 
out proper  authority  creates  a  public  nui- 
sance, and  courts  of  equity  have  power  to 
enjoin  such  a  work.  Savannah,  A.  &•  G. 
R.  Co.  V.  Sht'els,  33  Ga.  601. 

If  a  heap  of  earth  placed  in  a  highway  is 
of  such  a  nature  as  to  be  dangerous  by  caus- 
ing horses  passing  on  the  highway  to  shy, 
it  is  a  public  nuisance.  Brown  v.  Eastern 
&*  M.  R.  Co.,  37  Am.  &•  Eng.  R.  Cas.  558, 
22  Q.  B.  D.  391. 

Wliere  a  railway  company  gains  lawful 
possession  of  private  land  as  a  right  of  way, 
the  land  being  located  outside  a  municipal 
corporation,  the  subsequent  annexation  of 
such  land  to  a  city  does  not  render  the 
company's  possession  unlawful,  nor  does 
the  subsequent  acceptance  of  such  land  as 
a  public  street  or  highway  by  the  city  ren- 
der the  occupation  and  possession  of  said 
street  by  the  company  a  nuisance  subject  to 
be  abated  by  mere  resolution  of  the  city 
council.  Dem'er  v.  Denver  &*  S.  F.  R.  Co., 
17  Colo.  583,  31  Pac.  Rep.  338.— Approving 
Omaha  &  N.  N.  R.  Co.  v.  Redick,  16  Neb. 

3'3. 

.  By  virtue  of  Me.  Rev.  St.  of  1857,  ch.  51, 
§  15,  a  railroad  crossing  not  made  in  the 
"  manner  determined  in  writing  by  thecoun- 
ty  commissioners  "  is  a  nuisance.  State  v. 
Portland,  S.  &-  P.  A*.  Co.,  58  A/e.  46. 

An  allegation  of  negligence  on  the  part 
of  defendants  in  the  operation  and  manage- 
ment of  a  train,  whicii  the  complaint  alleges 
caused  the  special  injury^  is  not  necessary,  as 
the  unauthorized  and  continuous  obstruc- 
tion of  the  highway  is  a  public  nuisance, 
and  a  person  sustaining  a  special  injury 
therefrom  is  entitled  to  recover  damaijes, 
irrespective  of  the  question  of  negligence  ;it 
the  time  of  the   injury.     Lamming  v.  (Ja- 


/us/ia,  135  JV.  V.  239,  31  N.  £.  Rep.  1024, 47 
A^.  Y.  S.  R.  831 ;  reversing  63  Hun  32,  3e 
Civ.  Pro.  16,  43  A^.  Y.  S.  R.  592,  17  A^.  K 
Snpp.  328. 

A  canal  excavated  by  a  corporation  with- 
out lawful  authority  in  a  street  shown  upon 
a  defectively  executed  plat  is  a  private  nui- 
sance to  owners  of  lots  abutting  on  such 
street  who  had  purchased  according  to  the 
defective  plat,  and  had  at  least  a  private  way 
over  the  street,  and  there  can  be  no  pre- 
scription for  such  nuisance.  Taylor  v. 
Chicago,  M.  &•  St.  P.  R.  Co.,  83  Wis.  636, 
S3  N.  W.  Rep.  853. 

A  city  passed  an  ordinance  granting  a 
company  the  right  to  own  and  operate  a 
railway  on  certain  streets  for  a  time  extend- 
ing beyond  the  corporate  life  of  the  com- 
pany. Afterwards  an  ordinance  was  passed 
limiting  the  time  to  the  lifetime  of  a  new 
corporation  which  had  succeeded  to  the 
property.  Held,  that  the  company  was  lia- 
ble as  for  a  public  nuisance  if  it  continued 
to  use  the  streets  after  the  time  fixed,  and 
might  be  restrained  by  injunction.  Detroit 
V.  Detroit  City  R.  Co.,  56  Fed.  Rep.  867. 

A  railroad  company  which  places  large 
quantities  of  cotton  on  a  public  street  in  a 
city  in  such  a  manner  as  to  obstruct  the 
street  and  to  expose  surrounding  property 
to  the  danger  of  fire  is  guilty  of  creating  a 
nuisance,  although  the  street  is  used  solely 
by  travelers  on  foot,  and  a  passage  is  left 
for  their  use.  Marine  Ins.  Co.  v.  St.  Louis, 
I.  AL  &^  S.  R.  Co.,  43  Am.  <&*  E/tg.  R.  Cas. 
79,  41  Fed.  Rep.  643. 

A  railroad  company  using,  for  the  pur- 
poses of  a  terminal  yard,  a  portion  of  a  street 
over  which  it  has  only  a  right  of  way  is  re- 
sponsible for  any  nuisances,  public  or  pri- 
vate, thereby  created.  Pennsylvania  R.  Co. 
v.  Angel,  26  Am.  &'  Eng.  R.  Cas.  559,  41  iV. 
/.  Ef.  316, 7  Atl.  Rep.  432,  56  Am.  Rep.  1. — 
Distinguished  in  Beseman  v.  Pennsylva- 
nia R.  Co.,  33  Am.  &  Eng.  R,  Cas.  lor,  50 
N.  J.  L.  235. 

10.  Obstructlo  118  in  public 
grroiiiids.  —  A  railroad  unlawfully  con- 
structed in  a  public  park  is  a  purpresture; 
and  if  it  unlawfully  obstructs  the  free  pas- 
sage or  its  use  in  the  customary  manner  by 
the  public,  it  is  a  nuisance  and  may  be 
abated  by  a  court  of  equity.  If  it  is  not  a 
nuisance,  the  remedy  is  not  by  the  people, 
who  are  not  injured,  but  by  the  holder  of 
the  legal  title.  People  v.  Par/t  &*  O.  R.  Co., 
76  Cat.  156,  18  Piu:  Rep.  141. 


Ik 
3 


898 


NUISANCE,  11,12. 


r 


K  '. 


L'i 


H 


m 

'm 

m 


Is 


A  city  leased  to  defendant  for  "  depot 
purposes"  f^round  dedicated  to  the  general 
public,  but  reservintj  a  rijiht  of  way  to  and 
over  a  bridge  at  tlie  nioutli  of  a  river  ;  also 
the  right  to  use  so  much  of  said  grounds  as 
may  be  necessary  in  the  repair  of  the  same 
or  for  rebuilding  the  bridge;  the  right  to 
provide  by  resolution  for  the  necessary  re- 
pair and  good  condition  of  the  road  leading 
to  the  bridge,  and  to  provide  that  the  same 
shall  be  kept  in  good  repair  and  c(jndition 
by  the  railroad  company  for  public  travel. 
Defendant  built  a  round  house  and  turn- 
table on  the  ground  in  such  a  way  as  to  in- 
terfere with  the  customary  travel  over  said 
ground  to  plaintiffs'  place  of  business.  Held, 
that  it  was  the  intent  of  the  city  that  de- 
fendant and  the  general  public  should  joint- 
ly use  and  occupy  the  grounds  for  highway 
purposes,  and  that  the  round  house  and 
turntable  constituted  a  nuisance  for  which 
plaintiffs  were  entitled  to  damages,  and 
which  the  court  properly  ordered  to  be  re- 
moved. Piatt  V.  Chicago,  B.  &*  Q.  /i,  Co., 
74  /owa  127,  37  A^.  IV.  Rep.  107. 

11.  ObstriictiouN  to  navigation.— 
The  obstruction  of  a  navigable  stream  by  a 
railroad  bridge  is  a  public  nuisance.  South 
Carolina  K.  Co.  v.  Moore,  28  Ga.  398. 

The  extension  of  a  railroad  across  an  arm 
of  the  sea  which  is  constantly  used  by 
schooners,  small  boats,  and  other  vessels 
for  purposes  of  trade  and  commerce  is  a 
public  nuisance.  O'Brien  v.  Norwich  &* 
W.  R.  Co.,  17  Conn.  372. 

"  Healy  slough,"  a  branch  of  the  Chicago 
river.  Is  not  a  navigable  stream,  in  the  sense 
in  which  the  term  is  used  in  the  law.  So 
the  public  has  not  an  easement  over  it  of 
a  character  to  render  a  railroad  bridge  over 
the  same  a  public  nuisance.  Joliet  &*  C.  R. 
Co.  v.  Hcaly,  94  ///.  416. 

The  shores  of  navigable  rivers  and  streams 
and  the  lands  under  the  waters  thereof  be- 
long 10  the  state  within  whose  territorial 
limits  they  lie  ;  it  may  authorize  the  con- 
struction of  bridges,  piers,  wharves,  or  other 
obstructions  in  navigable  waters,  and  when 
such  obstructions  are  not  obnoxious  to  the 
regulations  of  congress  and  do  not  conflict 
with  the  paramount  authority  of  the  United 
States,  they  are  not  nuisances.  Kerr  v. 
West  Shore  R.  Co.,  127  ^V.  }'.  269,  27  N.  E. 
AV-  833.  37  ^V.  Y.  S.  R.  913;  affirming  53 
Hun  634,  25  A'.  Y.  S.  R.  1036,  6  A'.  1'.  Supp. 
958. 

The  state  may  also  grant  or  confer  an  ex- 


clusive privilege  in  tide  water  provided  it 
does  not  trench  upon  the  powers  granted  to 
congress.  A'err  v.  14'est  Shore  R.  Co.,  127 
A^.  Y.  269.  27  A^.  E.  Rep.  833,  37  A'.  Y.  S.  R. 
913;  affirming  53  Hun  634,  25  A^.  Y.  S.  R. 
1036,  6  N.  Y.  Supp.  958. 

A  dam  erected  in  a  floatable  stream  to 
furnish  power  to  ojjerate  a  mill  useful  to  the 
public,  under  authority  from  acounty court, 
is  not  a  i)ublic  nuisance,  though  without 
sluice,  and  though  it  obstruct  navigation  ; 
and  a  railroad  company  which,  by  an  un- 
lawful act  in  the  construction  of  its  road, 
inflicts  injury  upon  the  mill  cannot  excuse 
itself  for  the  wrong  by  the  plea  that  such 
dam  is  a  public  nuisance.  Watts  v.  Norfolk 
&•  W.  R.  Co.,  57  Am.  &*  Eng.  R.  Cas.  694,  39 
W.  Fa.  196,  195.  E.Rep.  521. 

A  party  who  suffers  injury  from  a  public 
nuisance — e.  g.,  in  having  his  raft,  boat,  or 
barge  stopped  by  the  building  of  a  radroad 
bridge  across  a  navigable  stream — may  have 
his  action  against  the  nuisancer  for  dam- 
ages. Little  Rock,  M.  R.  6-  T.  R.  Co.  v. 
Brooks,  17  Am.<&-  Eng.  R.  Cas.  152,  39  Ark. 
403- 

3.  Continuance  of  Nuisance. 

12.  Generally. — A  party  in  whose  pos- 
session and  control  a  railroad  is  placed  with 
power  to  continue  its  use  is  equally  liable 
with  the  original  owner  for  a  nuisance  aris- 
ing from  the  manner  of  its  construction. 
Tate  v.  Missouri,  K.  &*  T.  R.  Co.,  64  Mo. 
149,  17  Am.  Ry.  Rep.  191. 

Where  a  party  is  not  the  original  creator 
of  a  nuisance,  he  must  have  notice  of  it  and 
be  requested  to  abate  it  before  he  may  be 
made  liable  by  reason  thereof.  Central 
Trust  Co.  V.  Wabash,  St.  L.  <S-  P.  R.  Co.,  58 
Am.  (3-  Eng.  R.  Cas.  642,  57  Fed.  Rep.  441. 

But  to  make  a  lessee  company  liable 
for  continuing  a  nuisance  erected  by  the 
lessor  it  is  not  necessary  to  show  that  tlie 
former  was  notified  of  the  nuisance  and 
requested  to  abate  it.  It  is  sufficiciit  if  it 
appears  that  it  knew  of  the  nuisance.  Dick- 
son V.  Chicago,  R.  I.  &*  P.  R.  Co.,  2  Am.  <S- 
Eng.  R.  Cas.  538,  71  Mo.  575.— Following 
Pinney  v.  Berry,  6t  Mo.  359.  N(JT  fol- 
lowing Penruddock's  Case,  5  Coke  100. 

Where  the  grantee  of  an  easement  dis- 
covers a  nuisance  in  connection  therewith 
and  abates  it,  but  afterwards  permits  it  to 
arise  again,  he  is  liable  without  notice  to 
abate  it,  even  though  it  was  created  origi- 
nally by  his  grantor.     Drake  v.  Chicago,  R. 


NUISANCE,  13,  14. 


893 


/.  &-  P.  /?.  Co.,  17  Am.  &-  Eng.  R.  Cas.  45, 
63  /(Kiui  302,  50  //;«.  A'f^.  746,  19  A'.  11^. 
A't-fi.  215.  — DiSTINUUISIIINd  Siiglil7/.  Gutz- 
liilT,  35  Wis.  6/5. 

li  is  not  necessary  in  order  to  maintain 
nn  action  for  a  nuisance  wliicli  luis  been 
enicted  hy  tlic  predecessor  of  defentiant  to 
allej;c  tliat  defendant  liad  knowledjje  ■  no- 
tire  of  tiic  nuisance.  It  is  not  neccss.iry  to 
allege  or  prove  that  notice  of  the  nuisance 
lias  been  f(iven  providing  you  aliej^e  and 
prove  knowledge  of  its  continuing  existence. 
McCimt/tin  v.  Missouri  Pac.  A\  Co.,  23  Jl/o. 
AJ>p.  203. 

leaking  an  excavation  under  a  railroad 
track,  and  thereby  diverting  the  waters  of  a 
creek  and  emptying  them  upon  land  there- 
tofore dry  and  tillable,  constitutes  a  nui- 
sance, and  the  maintenance  of  said  excava- 
tion and  its  results  is  a  continuing  nuisance. 
Ueort^e  v.    IVitbash   M'esiern  A'.  Co.,  40  Mo, 

Apfi.  433- 

Plaintiff  brought  an  action  to  recover 
damages  to  his  crops  caused  by  defendant 
company  in  maintaining  certain  piles  and 
trestle  work  so  as  to  cause  water  to  over- 
flow plaintiff's  land.  Held,  that  if  the  tres- 
tle was  improperly  and  unlawfully  con- 
structed, then  its  continuance  constituted  a 
breach  of  duty,  and  each  injury  resulting 
therefrom  constituted  a  new  cause  of  action. 
St.  Louis  A.  &'  T.  H.  A'.  Co.  v.  Brow/i,  34 
///.  Apfi.  552.— Quoting  Ohio  &  M.  R.  Co. 
7'.  Wachter,  123  111.  440;  Chicago,  B.  &  Q. 
R.  Co.  7'.  Schaffer,  124  111.  112. 

i;i.  Works  no  prescriptive  right 
to  maintain. — There  is  no  such  thing  as 
a  prescriptive  right  or  any  other  right  to 
maintain  a  public  nuisance.  Philadelphia, 
IV.  6-  B.  A'.  Co.  V.  Sla/g,  20  A/d.  157. 
Louisville  &*  N.  R.  Co.  v.  Hays,  14  Am.  &* 
Eiig.  R.  Cas.  284,  II  Lea  (Ti-iin.)  382,  47 
Am.  Rep.  291.  Werges  v.  St.  Louis,  C.  &• 
N.  O.  R.  Co.,  35  La.  Ann.  641. 

A  right  to  maintain  a  strictly  private 
nuisance  upon  the  land  of  another  may  be 
ac(iuired  by  prescription,  and  the  time 
necessary  to  perfect  a  prescriptive  right  in 
Indiana  is  twenty  years.  Sherlock  v.  Louis- 
ville. N.  A.  &-  C.  R,  Co.,  115  Ind.  22,  14 
West.  Rep.  843,  17  N.  E.  Rep.  171. 

Prescription  may  transfer  what  was  origi- 
nally a  nuisance  into  a  right ;  but  the  use 
must  be  adverse,  continuous,  and  iminter- 
rupted  and  with  the  acquiescence  of  the 
owner  for  ten  years,  and  bringing  suits  for 
damages  for  such   use    shows    sufficiently 


the  want  of  acquiescence.  Bwtten  v.  Chi- 
cax'o,  R.  L  C-^  P.  R.  Co.,  50  Jt/o.  Afip.  414.— 
DisTiN(;ui.siiiN(;  Bird  7/.  Hannibal  &  St.  J. 
R.  Co.,  30  Mo.  .\pp.  365. 

Noiicqiiii'sceiuL'  short  of  twenty  years  will 
bar  one  from  coiuplaining  of  a  nuisance,  un- 
less by  sonic  act  or  omission  he  has  induced 
the  party  causing  the  nuisance  to  incur 
large  ex|)eiiditures,  or  to  take  sonic  action 
ujioii  which  an  estoppel  may  be  based.  So 
held,  where  plaintiff  sued  to  recover  dam- 
ages, and  for  equitable  relief  aj;ainst  the 
operation  of  an  elevated  railroad  in  the 
street  in  front  of  his  property,  and  where 
the  company  relied  upon  the  ordinary  stat- 
ute of  limitations  as  a  defense.  Knox  v. 
Metropolitan  El.  R.  Co.,  58  Hun  517,  36  ^\'. 
Y.  S.  R.  2,  1 2  N.  Y.  Supp.  848 ;  afirmed  in 
128  .V.  J'.  625,  mem.,  40  .V.  Y.  S.  R.  157.  28 
A^.  E.  Rep.  485.— Distinguishing  Heiitz 
V.  Long  Island  R.  Co.,  13  Barb.  655; 
McAulay  v.  Western  Vt.  R.  Co.,  33  Vt.  31 1  ; 
Goodin  v.  Cincinnati  &  W.  Canal  Co.,  i8 
Ohio  St.  169. 

And  in  such  case  the  plaintiff  is  not  pre- 
vented from  recovering  damages  because 
the  structure  is  authorized  by  law;  but  he 
must  rely  upon  a  failure  of  the  company  to 
offer  him  due  compensation,  or  to  condemn 
his  property  under  the  right  of  eminent  do- 
main. Knox  V.  Metropolitan  El.  R.  Co.,  58 
Hun  517.  36  .V.  Y.  S.  R.  2,  12  A'.  ]'. 
Supp.  848;  affirmed  in  \2%N.  Y.  625,  vicni., 
40  N.  Y.  S.  R.  157,  28  A^.  E.  Rep.  485. 

n.  SEHEDIEB. 
I.  In  General. 

14.  Abatement  l>y  public  officers. 

— Under  Mass.  Gen.  St.  ch.  26,  §  8,  an  or- 
der of  a  board  of  health  to  a  railroad  com- 
pany for  the  removal  of  a  nuisance  reciting 
that  the  company,  by  filling  up  parts  of  a 
certain  pond  without  supplying  suitable 
culverts  or  other  means  of  drainage,  have 
created  and  are  maintaining  a  nuisance  suf- 
ficiently informs  the  company  of  the  nature 
and  locality  of  the  nuisance.  Salem  v. 
Eastern  R.  Co.,  98  Mass.  431. 

New  Jersey  Act  of  March  12,  1880,  mak- 
ing animals  with  contagious  or  infectious 
diseases  common  nuisances,  and  authoriz- 
ing their  destruction  by  certain  officials, 
and  the  further  act  of  March  12,  1884,  mak- 
ing horses  affected  by  glanders  common 
nuisances,  and  authorizing  their  destruction, 
are  within  the  police  powers  of  the  state; 
and  are  not  within  tlie  fourteenth  amend- 


Shi 


894 


NUISANCE,  15-18. 


;"iS: 


U 

<;»i2<> 


nicnt  of  the  federal  constitution,  granting 
equal  protection  uf  tlic  law,  because  tliey 
authorize  tlic  abatement  of  such  nuisances 
in  advance  of  a  judicial  determination  of 
the  fact  of  the  nuisance.  So  Itelii,  where  a 
street-railway  company  sued  for  tiie  killing 
of  certain  horses  belonging  to  it.  A'livark 
&^  S.  O.  Horse  Car  A'.  Co.  v.  Hunt,  50  ;V.  /. 
L,  308.  II  Cint.  Kcp.   219,  12  At  I.  Rep,  697. 

15.  Action  to  almto.— A  private  indi- 
vidual cannot  maintain  an  action  to  abate 
an  alleged  nuisance  caused  by  obstructing  a 
navigable  stream,  uidcss  he  sutlers  some 
damaj^es  peculiar  to  himself,  and  .dilVering 
from  tlie  damages  sulTered  by  the  public 
generally.  Jarvis  v.  Santa  Clara  Valley  li. 
Co.,  52  Cal.  438.  Inni'sw,  Cedar  Kapids,  I. 
F.  &*  N.  W.  N.  Co..  7G  Iowa  165,  2  /,.  A".  A. 
282,  40  N,  W.  Rep.  701. 

A  public  nuisance  cannot  be  tolerated 
on  the  ground  that  the  community  may 
rcali/.o  some  advantages  from  its  existence. 
W  orks  v.  Junction  R.  Co.,  5 McLean  (U.  S.) 
425.— FoLLowiNO  Wheeling  Bridge  Case,  9 
Western  L.  J.  535. 

An  abutting  owner  who  expressly  assents 
to  the  occupancy  of  a  street  cannot  main- 
tain an  action  for  the  abatement  of  a  nui- 
sance  by  the  removal  of  a  railroad  track. 
Jiurkam  v.  Ohio  &*  M.  R.  Co.,  43  Am.  (S>» 
En^.  K.  Cas.  153, 122  /nd.  344,  23  JV.  E.  Rep. 

799- 

Where  plaintiff  files  a  bill  to  prevent  the 
continuance  of  a  nuisance  in  allowing  cars 
loaded  with  cattle  to  stand  an  unreasonable 
time  on  the  street  in  front  of  his  house,  an 
averment  in  the  company's  answer  that 
plaintill's  house  was  built  after  the  tracks 
were  laid  should  be  stricken  out  as  itnnia- 
terial.  Angel  v.  Pennsylvania  R.  Co.,  17 
Am.  Sm  Eng.  R.  Cas.  128,  38  N.  J.  Eq.  58. 

10.  Ejectment.— A  city  cannot  main- 
tain an  action  against  a  railroad  company 
as  for  a  nuisance  caused  by  driving  piles  in 
ground  claimed  as  a  street,  but  which  the 
company  claims  is  not  a  street,  but  which 
it  owns  in  fee.  The  proper  remedy  is  eject- 
ment. Cimington  v.  Chesapeake  &^  O.  R. 
Co.,  (Ey.)  20  S.  W.  Rep.  538. 

1  7.  Indictment. — A  declaration  stated 
that  defendant,  in  constructing  its  railway, 
built  a  bridge  across  a  river  so  as  to  impede 
navigation  ;  that  plaintifT  owned  land  on  the 
river  above  the  bridge,  and  by  reason  there- 
of was  entitled  to  the  free  use  of  the  river; 
that  vessels  had  been  accustomed  to  pass 
u;)  and  d'l'AM  tn  his  land,  but  could  no  longer 


do  so ;  and  that  the  trade  of  the  river  had 
been  destroyed,  and  his  land  in  consequence 
diminished  in  value.  Held,  that  it  did  not 
state  any  mjury  peculiar  to  plaintifT  which 
would  entitle  him  to  maintain  an  action. 
The  proper  remedy  is  by  itidictment.  Small 
V.  Grand  Trunk  R.  Co.,  15  U.  C.  Q.  B.  283, 

2.  Injunction. 

18.  Jiiri8<li('lion   <»t'  equity,   Hr<^n- 

crally.— Under  Mass.  (3en.  St.  cli.  145,  § 
16,  the  remedy  by  application  for  leave  to 
fdc  an  information  in  the  nature  of  a  <]u9 
ViV  Kiinto  to  redress  an  injury  to  private 
rights  or  interests  by  the  exercise  by  a  pri- 
vate corporation  of  a  franchise  or  privilege 
not  conferred  by  law  d(jes  not  deprive  the 
supreme  court  of  its  jurisdiction  in  equity 
in  case  of  a  private  nuisance.  J'all  River 
Iron  Works  Co.  v.  Old  Colony  6-  F.  R.  R. 
Co.,  5  Allen  (Mass.)  221. 

A  court  of  equity  has  jurisdiction  to  a 
certain  extent  in  cases  of  public  nuisances, 
although  it  has  rarely  been  exercised.  At- 
torney-General v.  New  Jersey  R.  &*  T.  Co., 
3  N.  J.  Eq.  136.— QuoTKD  IN  Attorney- 
General  V.  Chicago  &  N.  W.  R.  Co.,  35  Wis. 
425. 

An  individual  may  come  into  an  equity 
court  if  he  is  about  to  be  injured  by  a  pub- 
lic nuisance,  and  obtain  an  injunction  to 
prevent  it,  but  the  court  must  be  satisfied 
that  it  will  be  a  public  nuisance  or  it  will 
not  interpose.  Gilbert  v.  Morris  C.  &*  li. 
Co.,  %  N.J.  Eq.  495. 

Except  for  special  and  urgent  reason 
equity  will  not  interfere  to  redress  a  public 
nuisance  where  the  object  sought  may  be 
as  well  attained  in  the  ordinary  tribunals ; 
and  where  the  grievance  is  a  misdemeanor, 
subject  to  indictment,  equity  will  interfere 
with  great  reluctance,  even  though  its  inter- 
vention be  sought  by  the  attorney-general, 
and  then  only  to  prevent  a  very  serious 
public  injury.  Raritan  Tp.  v.  Port  Read- 
ing R.  Co.,  50  Am.  &^  Eng.  R.  Cas.  169, 
49  N.J.  Eq.  II,  23  At  I.  Rep.  127. 

If  the  use  of  a  railroad  in  the  streets  of 
a  city  becomes  a  nuisance,  or  the  aggression 
proves  to  be  permanent  and  without  any 
adequate  remedy  at  law,  then  the  court  will 
administer  its  equitable  relief  by  injunction 
to  prevent  its  continuance,  or  for  its  re- 
moval. But  a  strong  case  must  be  pre- 
sented, and  the  impending  danger  must  be 
imminent  and  impressive,  to  justify  an  in- 
juncti.m  as  a  precautionary  and   preventive 


NUISANCE,  10,20. 


remedy.  Dtake  v.  Hudson  /\'/>w  R  Co.,y 
Barb.  {N.Y.)  508.— yuoTK.D  IN  VVetniDre  v. 
Story,  22  Harb.  (N.  Y.)  414. 

10.  Wlivii  equity  will  ciijoiii  n 
|Uil>liu  iiuImuiico.— Equity  will  not  intcr- 
poHi!  to  restrain  a  public  nuisance  on  t  '. 
ajipiication  of  a  private  individual,  unless  he 
sustains  special  and  material  damage  there- 
from beyond  what  the  public  at  large  may 
sustain  Sargent  v.  Ohio  &•  M.  A'.  Co.,  i 
Handy  {Ohio)  12.  H'i/cirn  v.  \l'tst  lirooklyn 
K.  Co.,  I  N.  v.  Supp.  791,  49  //////609, 17  A'. 
Y.  S.  A'.  054.  Asior  v.  A'tw  York  Arcade  R. 
Co..  3  A',  v.  S.  a:  188.  Gates  v.  Kansas 
City.  It.  6-  r.  li.  Co.,  Ill  Mo.  28,  195.  W. 
Kcp.  y57. 

Where  the  court  has  already  found  that 
ihc  extension  of  a  railroad  on  certain  city 
streets  is  a  public  nuisance,  the  people  are 
entitled  to  an  injunction  without  proof  of 
damages.  People  v.  Third  Ave.  R.  Co.,  45 
liarb.  {N.  Y.)  63,  30  Htm.  Pr,  121;  af- 
firmed (?)  3!  Ho7u.  Pr.  637. 

But  in  such  case  an  attempt  on  the  part 
of  the  company  to  exercise  a  franchise  which 
is  not  authorized  by  law  is  sufficient  proof 
of  damage  to  uphold  a  perpetual  injunc- 
tion. People  V.  Third  Ave.  R.  Co.,  45  Barb, 
(N.  Y.)  63,  30  Ho^ii).  Pr.  121  ;  affirmed  {f)  31 
Ho^o.  Pr.  637. 

Where  a  complaint  charges  a  company 
with  maintaining  a  railroad  on  a  street  with- 
out right,  a  demurrer  admits  that  the  com- 
pany is  maintaining  the  road  without  au- 
thority, and  it  follows  that  such  occupation 
of  the  street  is  a  nuisance,  and  any  one 
specially  injured  thereby  may  have  a  remedy 
for  its  abatement.  Wilcken  v.  West  Brook- 
lyn R.  Co.,  I  A^.  Y.  Supp.  791,  49  Hun  609, 
17  N.  Y.  S.  R.  654. 

Where  a  corporation  for  purely  private 
purposes  enters  upon  land  used  for  a  wharf 
and  begins  the  construction  of  a  log-way 
and  raised  platform,  and  threatens  to  use  a 
steam  engine  in  the  prosecution  of  its  busi- 
ness, one  who  lives  in  the  immediate  vicin- 
ity of  the  wharf  may  enjoin  such  a  use  of 
the  wharf,  his  complaint  showing  injury  to 
the  use  and  enjoyment  of  his  dwelling  house 
therefrom  and  consequent  depreciation  in 
its  value,  and  the  interference  of  its  com- 
fortable enjoyment  by  dust,  smoke,  and  of- 
fensive odors.  The  common  council  of  a 
city  cannot  authorize  such  an  obstruction  of 
the  wharf.  Adams  v.  Ohio  Falls  Car  Co., 
131  Ind.  375,  31  A'.  E.  Rep.  57. 

In  such  case  it  is  not  necessary  to  a  right 


of  action  that  plaintiff's  dwelling  house  will 
be  injured  by  the  |)roj)08ed  use  of  the  wharf, 
but  if  its  comfortable  enjoyment  will  be  es- 
sentially interfered  with,  relief  by  injunction 
will  be  awarded,  Adams  v,  Ohio  Falls  Car 
Co.,  131  Ind.  375,  31  A'.  K.  Rep.  57. 

Plaintid  has  no  riglitof  action  on  account 
CI  the  del)rivation  of  the  right  which  he  in 
common  with  the  general  public  has  to  use 
and  drive  over  that  part  of  the  wharf  occu- 
pied by  the  obstruction.  Adams  v.  Ohio 
Falls  Car  Co.,  131  Ind.  375,  31  N.  E.  Rep.  57. 

Where  it  does  not  ap|)ear  in  the  com- 
plaint that  plaintiff's  taxation  will  be  in- 
creased either  directly  or  indirectly  by  the 
alleged  wr  ngful  use  and  obstruction  of  the 
wharf,  there  is  nothing  to  show  that  he  will 
sufTer  injury  as  a  taxpayer  on  that  account. 
Adams  v.  Ohio  Falls  Car  Co.,  131  Jnd.  375, 
y.  N.  E.  Rep.  57, 

iO.  hikI  when  not.— A  court  of 

equity  will  not  enjoin  an  offense  against  the 
public  at  the  instance  of  an  individual,  un- 
less he  suffers  some  private,  direct,  and  ma> 
terial  damage  beyond  the  public  at  large,  as 
well  as  damage  otherwise  irreparable.  Mere 
diminution  of  the  value  of  his  property  by 
the  nuisance,  without  irreparable  mischief, 
will  not  furnish  any  foundation  for  equita- 
ble relief.  Morris  &*  E.  R.  Co.  v.  Prudden, 
20  N.  /.  Eg.  530.— Quoting  Attorney-Gen- 
eral V.  New  Jersey  R.  Co.,  3  N.  J.  Eq.  136; 
Hinchman  v.  Paterson  Horse  R.  Co.,  17  N. 
J.  Eq.  75. — Followed  in  Black  v.  Delaware 
&  R.  Canal  Co.,  22  N.  J.  Eq.  iy>.—Astor  v. 
New  York  Arcade  R.  Co.,  3  A^.  Y.  S.  R.  188. 

A  steam  railway  in  a  street  which  is.  not 
occupied  by  complainant  company,  although 
in  itself  a  public  nuisance,  and  intended  for 
carrying  passengers  in  the  manner  pursued 
by  complainant,  is  not  a  special  injury  to 
complainant's  road  which  equity  will  enjoin. 
Denver  &>  S,  R,  Co.  v,  Denver  City  R.  Co., 
2  Colo.  673,  20  Am.  Ry.  Rep,  339. 

Plaintiffs  who  own  lands  abutting  on  a 
public  street  are  not  entitled  to  an  action 
for  a  nuisance  caused  by  the  obstruction  of 
another  portion  of  the  same  street  not  on 
or  opposite  their  lands,  and  by  which  access 
to  such  lands  is  not  cut  ofl.  Barnum  v. 
Minnesota  Transfer  R,  Co.,  33  Minn.  365,  23 
A'.  W.  Rep.  538.— Following  Shaubut  v. 
St.  Paul  &  S.  C.  R.  Co..  21  Minn.  502. 

Where  the  charter  of  a  city  empowers  it 
to  direct  and  control  the  construction  of 
bridges,  the  erection  in  a  street  of  a  pier 
authorized  by  the  city  is  not  a  nuisance 


I 

Hi 


^ 

? 


^ 


« «  "^ 


8d9 


NUISANCE,  21-23. 


m 


ffe; 


::!< 


which  can  be  enjoined  by  an  owner  whose 
property  abuts  on  the  street.  Ga/es  v.  A'an- 
s.is  City  B.  &»  T.  R.  Co.,  in  Mo.  28,  19  S. 
W.  Rep.  937- 

The  court  refused  to  interfere  by  way  of 
Injunction  at  the  suit  of  a  neighboring  land- 
owner to  restrain  a  railway  company  from 
depositing  on  a  siding  manure  which  was 
occasionally  not  proper  manure,  and  which 
the  company  occasionally  allowed  to  remain 
longer  than  it  ought.  Swaine  v.  Great 
Northern  R.  Co.,  J^  De  G.,J.  &^  S.  2\i. 

Where  the  proceeding  is  to  abate  the  use 
of  steam  engines  in  drawing  trains  on  the 
streets  of  a  city,  the  question  whether  the 
court  will  restrain  the  unreasonable  exercise 
of  the  privilege  granted  by  the  legislature 
to  use  such  engines,  and  whether  property 
holders  upon  the  street  who  are  damaged 
may  recover  damages  cannot  be  passed  upon. 
Vason  V.  South  Carolina  R.  Co.,  42  Ga.  631. 

In  determining  upon  the  right  to  injunc- 
tive relief  against  nuisances  the  court  will 
be  infl-ienced  against  ordering  an  abatement 
by  the  facts  that  the  structure  from  which 
the  nuisance  arises  is  useful  to  defendant 
and  the  public,  and  the  injury  to  plamtiH 
trifling.  Brown  v.  Carolina  C.  R.  Co.,  83  N. 
Car.  128. 

A  special  injunction  to  restrain  the  erec- 
tion of  an  abattoir  and  slaughtering  house 
on  railroad  land  will  not  .be  granted  where 
the  affidavits  do  not  establish  the  fact  that 
they  will  be  a  nuisance ;  proper  filters,  basins, 
or  equivalent  appliances  being  used.  Sellers 
V.  Pennsylvania  R.  Co.,  10  Phila.  (Pa.)  319. 

Where  it  is  the  duty  of  a  street-railway 
company  to  keep  the  streets  on  which  its 
track  is  laid  in  repair,  but  it  fails  to  do  so, 
the  municipal  authorities  may  stop  the  run- 
ning of  cars  in  order  to  make^the  repairs,  and 
neither  the  company  nor  private  individuals 
who  live  near  the  road  and  depend  upon  it 
as  a  means  of  travel  have  any  standing  in  a 
court  of  equity  to  restrain  the  interference 
by  injunction.  Philadelphia  <S>*  G.  F.  Pass, 
R.  Co.  V.  Philadelphia,  II  Phila.  (Pa.)  358. 

21.  When  equity  will  eiijoiu  a  pri- 
vate nuiHaiice.  —  A  private  nuisance 
which  equity  will  abate  by  injunction  must 
be  one  occasioning  a  constantly  recurring 
grievance  from  its  nature  and  not  suscepti- 
ble of  adequate  compensation  in  damages. 
Brown  v.  Carolina  C.  R.  Co.,  83  N.  Car.  128. 
—  Reviewing  Raleigh  &  A.  A.  L.  R.  Co. 
V.  Wicker,  74  N.  Car.  220. 

To  iustify  an  injunction  to  restrain  the 


erection  of  a  nuisance,  or  to  abate  it  after  it 
is  erected,  it  must  appear  not  only  tliat  com- 
plainant's rights  are  clear,  but  that  the  thing 
sought  to  be  enjoined  is  prejudicial  to  his 
rights.  The  fact  of  the  nuisance  must  be 
clearly  established.  Delaware  fi»  R.  Canal 
Co.  v.  Camden  &•  A.  R.  Co.,  16  N. /.  Eq. 
321. 

Where  a  railway  company  owning  a  reser- 
voir holds  a  regatta  with  aquatic  sports 
thereon,  and  runs  cheap  excursion  trains 
thereto,  so  that  a  great  crowd  is  collected, 
who  trespass  on  the  park  of  an  owner  ad- 
joining the  reservoir,  and  injure  his  reserved 
right  of  fishing  and  sporting  over  it,  the 
company  is  guilty  of  maintaining  a  nuisance, 
and  will  be  enjoined  from  holding  further 
regattas.  Bostock  v.  North  Staffordshire  R. 
Co.,  I  De  G.&^  S.  584. 

22.  aiul   wlicii  not.  —  Where  a 

complaint  fails  to  state  a  cause  of  action  in 
equity,  a  general  den)urrer  thereto  will  be 
sustained  notwithstanding  it  may  contain 
allegations  which,  if  standing  by  themselves, 
would  constitute  a  cause  of  action  at  law. 
So  where  an  action  is  brought  to  perpetual- 
ly enjoin  a  company  from  diverting  a  stream 
of  water  from  its  course  so  as  to  overflow 
land  in  the  possessir)n  of  plaintiff,  and  for 
general  relief,  and  the  complaint  merely 
alleges  possession  in  plaintii?  under  a  con- 
tract of  sale,  and  is  silent  as  to  wliat  title 
the  company  has,  it  does  not  constitute 
facts  sufficient  for  equitable  relief,  and  is 
therefore  demurrable,  though  the  facts 
stated  might  give  relief  at  law.  Dennerv. 
ChicaiTo,  M.  <S-  St.  P.  R.  Co.,  1 1  Am.  &*  Etig. 
R.  Cas.  503,  57  Wis.  218.  15  iV.  W.  Rep.  158. 

23.  Matters  of  defense.  —  That  a 
building  was  erected  after  a  railroad  was 
laid  out  and  constructed,  is  no  impediment 
to  relief  against  any  nuisance  arising  from 
operating  the  road.  The  owner  of  a  lot 
does  not  lose  the  right  of  using  it  for  any 
lawful  purpose,  by  reason  of  any  erection 
on  adjoining  property,  or  any  ujc  to  which 
tiie  same  was  put  while  the  lot  was  vacant. 
King  v.  Morris  <S-  E.  R.  Co.,  18  N.  J.  Eq. 

397- 

A  railroad  company  cannot  justify  a  con- 
dition of  things  which  directly  renders  a 
-  .veiling  house  in  the  neighborhood  unfit 
for  a  place  of  residence,  upon  the  ground 
that  the  nuisance  necessarily  results  from 
the  convenient  transaction  of  the  company's 
lawful  business,  and  such  a  nuisance  will  be 
prohibited  by  injunction.     Pennsylvania  R. 


pp 


NUISANCE,  24-27. 


897 


te  it  after  it 
y  tliatcom- 
at  the  thing 
licial  to  his 
ce  must  be 
A'.  Canal 
6  N.J.  Eq. 

ing  a  reser- 
latic  sports 
rsion  trains 
is  collected, 

owner  ad- 
his  reserved 
over  it,  the 

a  nuisance, 

ing  further 
Tordshire  Ji. 

—  Where  a 
of  action  in 
reto  will  be 
nay  contain 
themselves, 
tion  at  law. 
o  perpetual- 
ng  a  stream 
to  overflow 
itiiT,  and  for 
aint  merely 
under  a  con- 
o  what  title 
t  constitute 
elief,  and  is 
the  facts 
.  Denner  v. 
Am.&*  Eng. 
v.  Rep.  158. 
!.  —  That  a 
railroad  was 
impediment 
irising  from 
iier  of  a  lot 
y;  it  for  any 
jny  erection 
se  to  which 
was  vacant. 
8  A^.  /.  E^. 

ustify  a  con- 
y  renders  a 
rhood  unfit 
the  ground 
-estilts  from 
e  company's 
ance  will  be 
<tsylvanta  K. 


Co.  V.  Angel,  26  Am.  &*  Eng.  R.  Cas.  559, 
4t  N.  J.  Eq.  316,  7  Atl.  Rep.  432,  56  Am. 
Rep.  I.— Followed  in  Pennsylvania  R. 
Co.  V.  Thompson,  45  N.  J.  Eq.  870. 

An  individual  who  maintains  a  brid<;e  for 
his  own  private  business  over  a  railroad 
track  cannot  avoid  liability  to  a  brakeman 
who  is  injured  thereby,  by  showing  that  the 
company  consented  to  the  construction  of 
the  bridge,  where  it  further  appears  that 
the  company,  before  the  accident,  had  noti- 
fied the  owner  tnat  the  bridge  was  danger- 
ous and  must  be  removed.  Dukes  v.  East- 
ern Distilling  Co.,  51  Hun  605,4  A^.  Y.  Supp. 
562. 

24.  The  relief  grunted.  —  A  decree 
declaring  a  private  railroad  a  nuisance,  and 
enjoining  its  furtiier  operation,  cannot  be 
avoided  by  getting  aciiarterand  organizing 
a  company  with  the  usual  powers,  where 
the  only  stock  in  tlic  company  is  held  by 
the  former  owner  of  the  private  road,  and 
paid  for  by  a  transfer  of  the  road.  Mc 
Candless's  Appeal,  70  Pa.  St.  210. —  Distin- 
GUISHKD  IN  Western  Pa.  R.  Co.'s  Appeal, 
104  Pa.  St.  399. 

Where  the  nuisance  complained  of  is  in 
part  the  loading  and  unloading  of  freight 
cars  in  a  street  from  a  side  track,  it  is  proper 
to  grant  an  injunction  to  restrain  such  load- 
ing and  unloading  in  the  street  generally, 
including  the  main  track  as  well  .^s  the  side 
track.  Kavanagh  v.  Mobile  &*  G.  R.  Co.,  78 
Ga.  803,  4  S.  E.  Rep.  113. 

25.  Excuses  for  ilisobcdience.  — 
Where  a  railroad  company  is  directed  to 
abate  a  nuisance,  the  court  of  chancery  will 
not  entertain  the  excuse  that  its  agents  and 
servants  have  disobeyed  the  instructions 
given  them  to  remove  it.  The  company 
must  obey  the  order  of  the  court  even  if  it 
has  to  discontinue  the  running  of  trains 
upon  its  road.  Until  the  injunction  is  modi- 
tied  or  removed,  the  company  must  con- 
form to  it.  Pennsylvania  R.  Co.  v.  Thomp- 
ton,  49  N.  J.  Eq.  318,  24  Atl.  Rep.  544; 
reversitig  48  N.  J.  Eq.  105,  21  Atl.  Rep.  182. 
— Rkviewing  Spokes  v.  Banbury  Board  of 
Health.  L.  R.  i  Eq.  42. 

But  if  the  employ6  of  the  company  exer- 
cises his  authority  in  good  faith,  with  an 
intention  and  purpose  to  the  best  of  his 
ability  to  enforce  obedience  to  the  order  of 
the  coi.rt,  he  will  not  be  in  contempt.  Penn- 
sylvania R,  Cc.  V.  Thompson,  49  A'.  J.  Eq. 
318,  24  Atl.  Rep.  544;  reversing  48  A^.  /. 
Eq.  105,  21  Atl.Rep.i%2. 
6  D.  R.  D.— 57 


3.  Action  for  Damages. 


2G.  When  au  uctiuu  will  lie. — It  is 

the  general  rule  that  a  private  action  does 
not  lie  for  a  public  injury  ;  but  it  also  is  a 
firmly  established  doctrine  tiiat  he  who  suf- 
fers from  a  common  nuisance  some  special 
injury  different  from  that  sustained  by  the 
rest  of  the  public,  shall  have  his  remedy 
therefor.  Mehrhof  Bros.  Brick  Mfg.  Co.  v. 
Delaware,  L.  &>  IV.  R.  Co.,  51  A^.  /.  L.  56, 
16  Atl.  Rep.  12.  Piatt  v.  Chicago,  B.  &-  Q. 
R.  Co.,  74  lo^va  127,  37  A'.  W.  Rep.  107.— 
Following  Park  v.  Chicago  &  S.  W.  R. 
Co. ,  43  Iowa  636. 

Where  the  injuries  sustained  by  reason  of 
a  nuisance  consist  in  the  destruction  of 
crops  from  year  to  year,  plaintiff  will  not  be 
limited  to  a  single  action,  but  may  sue  from 
time  to  time  as  often  as  the  damage  occurs. 
Dickson  v.  Chicago.  R.  I.  «S^■  P.  R.  Co.,  2  Am. 
6-  Eng.  R.  Cas.  538,  71  Mo.  575. — Follow- 
ing Van  Hoozier  v.  Hannibal  &  St.  J.  R. 
Co.,  70  Mo.  145.  Not  following  Stodg- 
hill  7/.  Chicago,  B.  &  Q.  R.  Co.,  53  Iowa 
341,  5  N.  W.  Rep.  495. 

An  unguarded  excavation  in  a  street 
where  a  track  is  below  the  surface  is  a  nui- 
sance, the  continuing  of  which  will  render 
receivers  of  the  road  liable  to  pay,  out  of  the 
fund  in  their  hands,  damages  for  a  personal 
injury  of  which  it  is  the  proximate  cause. 
Morgan  v.  Illinois  &*  St.  L.  Bridge  Co.,  5 
Dill.{U.S>,^. 

27.  When  no  action  will  lie.— To 
enable  individual  property  owners  to  re- 
cover damages  for  the  erection  of  railroad 
tracks  so  as  to  be  a  nuisance,  it  must  appear 
that  they  have  sustained,  or  will  sustain,  a 
special  and  peculiar  injury,  irreparable  in  its 
nature,  and  different  in  kind  from  that  sus- 
tained by  the  public  generally.  Fog'g  v. 
Nevada  C.  O.  R.  Co.,  43  Atn.  &*  Eng.  R. 
Cas.  105,  20  A'ev.  429,  23  Pac.  Rep.  Sjo. 
W/titsett  V.  Union  D.  Sm  R.  Co.,  10  Co/o. 
243,  1 5  Pac.  Rep.  339.  Shaubut  v.  St.  Paul 
&*  S.  C.  R.  Co.,  21  Minn.  502,  19  Atn.  Ry. 
Rep.  223.  McLauchlin  v.  Charlotte  6-  .V.  C. 
R.  Co.,  5  Rich.  {So.  Car.)  583.  Nottingham 
V.  Baltimore  &*  P.  R.  Co.,  3  MacArth. 
(Z>.  Q  517. 

A  person  whose  lot  does  not  abut  on  the 
right  of  way  of  a  railroad,  and  whose  dwell- 
ing house  is  ninety-three  feet  from  a  coat 
chute  on  the  right  of  way,  cannot  recover 
damages  of  the  railway  company  on  account 
of  the  annoyance  occasioned  to  him  by  duit 


^ 


898 


NUISANCE,  28. 


m 


m 


i«*»IIM 


■■''■•»■< 

1  if."'"'- 

f 


I 


and  smoke  from  the  coal  chute  blowing 
upon,  in,  and  around  his  house,  and  by  the 
noises  arising  from  the  operation  of  the 
ciiute,  tiiere  being  no  complaint  that  the 
chute  is  carelessly  constructed  or  improper- 
ly operated.  Dunsniore  v.  Central  Iowa  R. 
Co.,  72  loim  182,  33  A'.  IV.  I\ep.  456.— DIS- 
TINGUISHED IN  Sliively  7/.  Cedar  Rapids.  I. 
F.  &  N.  W.  R.  Co..  74  Iowa  169,  7  Am.  St. 
Re]).  471.  37  N.  W.  Rep.  133. 

Where  a  statute  requires  railroad  compa- 
nies to  maintain  bridges  over  navigable  riv- 
ers so  that  boats  may  pass,  and  makes  them 
liable  for  any  expense  which  a  steamboat 
may  incur  in  lowering  its  smokestack  so  as 
to  enable  it  to  pass,  and  a  steamboat  com- 
pany sues  to  recover  for  a  special  injury  re- 
sulting from  the  bridge  as  an  obstruction, 
the  special  remedy  provided  by  the  statute 
is  not  available.  South  Carolina  Steamboat 
Co.  V.  South  Carolina  R.  Co.,  30  So.  Car.  539, 
4  L.  R.  A.  209,  9  S.  E.  Rep.  650. 

28.  Who  may  sue.— A  tenant  may 
maintain  an  action  for  injuries  resulting 
from  a  nuisance.  Lockett  v.  Ft.  Worth  &» 
R.  G.  R.  Co.,  78  Tex.  211,  14  5,  W.  Rep. 
564. 

The  lessee  of  a  hotel  and  grounds  adjoin- 
ing a  railroad  may  recover  damages  for  the 
unlawful  management  of  the  road,  and  for 
obstructing  a  road  which  furnishes  access 
to  the  grounds,  and  which  is  appurtenant 
thereto.  Avery  v.  New  York  C.  &•  H.  R.  R. 
Co.,  26  A.  Y.  S.  R.  279,  7  N.  Y.  Supp.  341 ; 
reversed  in  121  N.  Y.  649,  mem.,  24  N.  E. 
Rep.  24. 

Any  person  having  the  right  of  posses- 
sion but  not  the  absolute  ownership  of  real 
estate  may  maintain  an  action  for  personal 
annoyances  resulting  from  a  nuisance  com- 
mitted in  an  unlawful  use  of  the  public 
street  upon  which  the  property  abuts.  Hofi- 
kins  v.  Baltimore  &*  P.  R.  Co.,  6  Mackey 
(D.  C.)  311.— Reaffirmed  in  Glickw.  Bal- 
timore &  O.  R.  Co.,  8  Mackey  412. 

A  tenant  rented  certain  land  for  the  year 
1877  knowing  that  a  railroad  company 
maintained  a  nuisance  thereon  in  the  shape 
of  a  pond  of  water,  which  affected  the  health 
of  his  family.  With  this  knowledge  he 
rented  the  place  for  the  year  1878,  when  it 
became  n)ore  sickly,  so  much  so  that  he 
was  unable  to  gather  his  crops  ;  and  an  ac- 
tion was  brought  against  the  railroad.  Held, 
that  the  landlord  had  the  right  to  use  and 
occupy  the  place,  and  under  his  lease  the 
tenant  had  the  same  right,  and   he  could 


presume  that  the  cu.npany  r/ould  abate  the 
nuisance.  The  law  did  not  require  him  to 
move  away,  but  did  require  the  company  to 
abate  such  nuisance  ;  and  it  was,  therefore, 
not  error  to  refuse  to  charge  that  if  plaintiff 
could  have  avoided  the  injury  to  himself 
he  could  not  recover.  Central  R.  Co.  v.  Eng- 
lish, 29  Am.  &*  Eng.  R.  Cas.  530,  73  Ga.  366. 
— Distinguished  in  Brimberry  v.  Savan- 
nah, F.  &  W.  R.  Co..  78  Ga.  641,  3  S.  E. 
Rep.  274. 

Persons  who  suffer  special  damages  by  the 
obstruction  of  a  navigable  river  by  a  railroad 
company,  different  from  that  sustained  by 
the  rest  of  the  public,  may  maintain  an  ac- 
tion against  the  company.  Mehrhof  Bros. 
Brick  Mfg.  Co.  v.  Delaware,  L.  <S-  IV.  R. 
Co.,t,i  N.J.  L.  56,  16  Atl.  Rep.  12. 

An  action  may  be  maintained  by  a  rever- 
sioner for  the  mere  maintenance  of  an  erec- 
tion of  a  permanent  character  prejudicial  to 
the  right  of  the  reversioner,  although  no 
actual  damage  has  been  sustained  by  loss  of 
tenants  or  diminution  of  rents.  Tinsman  v. 
Belvidere  Del.  R.  Co.,  25  N.  J.  L.  255. 

New  York  Code  of  Civ.  Pro.  §  448,  pre- 
serves the  old  chancery  rule  that  where  the 
question  is  one  of  a  common  or  general  in- 
terest of  many  persons,  or  where  the  per- 
sons who  might  be  made  parties  are  very 
numerous,  and  it  may  be  impracticable  to 
bring  them  all  before  the  court,  one  or  more 
may  sue  for  the  benefit  of  all.  Astor  v.  New 
York  Arcade  R.  Co.,  3  N.  Y.  S.  R.  188. 

In  an  action  by  the  trustees  of  a  religious 
society  against  a  railroad  company,  the  dec- 
laration alleged  that  the  society  had  been 
disturbed,  during  divine  worship,  in  the 
church  edifice,  by  the  noise  made  by  de- 
fendant in  the  use  of  its  road,  by  which  the 
property  had  become  very  much  depreciated 
in  value  and  rendered  unfit  for  use  as  a 
church  or  house  01"  religious  warship,  and 
claimed  damages  therefor.  Held:  (i)  on  de- 
murrer, that  although  the  injuries  com- 
plained of  might  amount  to  a  public  nui- 
sance, yet  no  action  could  be  sustained  by 
plaintiffs,  as  owners  of  the  building,  for  the 
depreciation  in  the  value  thereof,  the  con- 
sequences being  too  remote  i  (2)  that  if 
plaintiffs  could  not  recover  on  account  of 
the  depreciation  of  their  property  they 
could  not  recover  at  all,  the  congregation  or 
society  worshiping  in  the  church,  and  not 
plaintiffs,  being  the  persons  molested.  First 
Baptist  Church  v.  Utica  &*  S.  R.  Co.,  6 
Bard.  {N.  Y.)  313.— APPROVED  in  Chapman 


NUISANCE,  39-31. 


899 


abate  the 
fe  him  to 
)mpany  to 
therefore, 
if  plaintiff 
;o  himself 
7o.  V.  Eng- 
73  Ga.  366. 
V.  Savan- 
p,  3  S.   E. 

Lgesby  the 
a  railroad 
itained  by 
ain  an  ac- 
•hof  Bros. 
<S-  IV.  Ji. 
2. 

by  a  rever- 
of  an  erec- 
judicial  to 
though  no 
1  by  loss  of 
Tt'nsman  v. 

255- 

§  448,  pre- 
where  the 
general  in- 
e  the  per- 
is are  very 
cticable  to 
ne  or  more 
star  V.  New 
/?.  188. 
a  religious 
ly,  the  dec- 
y  had  been 
ip,  in  the 
ade  by  de- 
which  the 
lepreciated 
>r  use  as  a 
irship,  and 
.•  (i)  on  de- 
uries  corn- 
public  nui- 
istained  by 
ing,  for  the 
f,  the  con- 
(2)  that  if 
account  uf 
perty  they 
negation  or 
h,  and  not 
!Sted.  First 
'.  R.  Co.,  6 
N  Chapman 


V.  Albany  &  S.  R.  Co.,  10  Barb.  360.  Re- 
viewed IN  Hatch  V.  Vermont  C.  R.  Co.,  25 
Vt.  49. 

20.  Parties  defendant.  —  The  fact 
that  a  railroad  company  issues  through 
bills  of  lading  in  exchange  for  the  receipts 
of  a  compress  company  for  cotton  stored  in 
the  sheds  of  the  compress  company  or  in 
the  street  does  not  render  it  liable  for  a 
nuisance  resulting  from  the  manner  in  which 
the  cotton  is  kept  by  the  compress  com- 
pany ;  neither  does  it,  by  so  issuing  bills  of 
lading,  take  possession  of  the  cotton,  nor 
make  the  compress  company  its  agent  to 
hold  it.  Si.  Louis,  I.  M.  &•  S.  Ji.  Co.  v. 
Commercial  Union  Ins.  Co. ,  49  Am.  &*  Eng. 
li.  Cds.  137,  139  U.  S.  223,  II  Sup.  Ct.  Hep. 

554. 

Where  the  nuisance  consists  of  a  work  or 
erection  which  is  permanent  and  necessa- 
rily injurious,  the  whole  injury  arises  gen- 
erally upon  its  completion,  and  the  entire 
damage,  present  and  prospective,  accrues 
at  once,  and  is  the  subject  of  a  single 
action,  which  must  be  brought  within  the 
period  of  limitations ;  but  if  such  erection 
is  on  one's  own  land,  and  does  not  of  itself 
work  the  injury  when  erected,  then  the  lim- 
itation will  not  begin  to  run  until  the  first 
injury  happens,  and  he  who  owns  or  main- 
tains it  at  that  time  will  be  liable.  Bunten 
V.  Chicago,  R.  I.  <S-  P.  R.  Co.,  50  Mo.  App. 
414. 

A  former  company  diverted  water  from 
a  stream,  which  caused  the  channel  off  the 
right  of  way  to  fill  up  and  overflow  land. 
Held,  that  if  at  the  time  defendant  became 
owner  of  the  property  the  removal  of  ob- 
structions on  its  right  of  way  would  not 
have  relieved  such  filling  of  the  channel  of! 
us  right  of  way  it  would  not  be  liable  for 
any  injury  resulting  from  such  obstructed 
channel,  but  its  predecessor  alone  would  be 
liable  therefor.  Bunten  v.  Chicago,  R.  I.  &* 
P.  R.  Co.,  50  Mo.  App.  414. 

30.  Notice  or  deniniid.— Where  one 
company  erects  a  nuisance,  and  its  road  is 
subsequently  leased  to  another  company, 
which  continues  to  maintain  such  nuisance, 
if  the  owner  of  the  property  on  which  it  is 
situated  notifies  the  president  and  officers 
of  the  lessee  company  of  it,  and  his  tenant 
also  notifies  the  section  master>  this  is  suf- 
ficient notice  and  demand  for  abatement, 
and  the  tenant  can  bring  an  action  for  inju- 
ries resulting  to  him  without  more.  Notice 
of  the  nuisance  is  sulficient.     Central  R,  Co. 


v.  English,  29  Am,  &•  Eng.  R.  Cas.  530,  73 
Ga.  366. 

In  order  to  render  a  company  liable  for 
maintaining  an  embankment  and  bridge 
which  were  erected  by  a  company  previously 
owning  the  road  so  as  to  constitute  a 
nuisance,  it  is  necessary  to  show  that  the 
present  company,  before  the  beginning  of 
the  action,  had  notice  of  the  existence  of 
the  nuisance,  but  it  is  not  necessary  to  prove 
a  request  to  abate  it.  Conhocton  Stone  Road 
V.Buffalo,  N.  Y.  &*  E.  R.  Co.,  St  N  1'.  573. 
10  Am.  Rep.  646;  reversing  52  Barb.  390. — 
Explaining  Brown  v.  Cayuga  &  S.  R.  Co., 
12  N.  Y.  486;  Irvine  v.  Wood,  51  N.  Y.  224. 
—Reviewed  in  Woran  v.  Noble,  i  N.  Y.  S. 
R.  499- 

A  company  is  not  liable  for  maintaining 
a  dam  built  by  another  company  so  as  10 
create  a  nuisance,  before  defendant  acquired 
title,  in  the  absence  of  notice  and  a  request 
to  abate  the  same,  unless  it  has  done  some- 
thing to  increase  it,  which  of  itself  is  a  fresh 
nuisance.  Fenter  v.  Toledo,  St.  L.  &*  K.  C. 
R.  Co.,  29  ///.  App.  250. 

31.  Pleading. — An  action  cannot  be 
maintained  by  an  individual  for  any  obstruc- 
tion of  a  public  highway  unless  special  dam- 
ages are  alleged.  A  declaration  must,  there- 
fore, show  that  the  way  is  private,  or  the 
damage  is  special.  Lamphier  v.  Worcester 
&•  N.  R.  Co.,  33  A^.  H.  495. 

Where  an  action  is  brought  for  damage 
to  crops  for  three  successive  years  because 
of  the  negligent  construction  of  a  railroad 
bridge,  the  destruction  of  each  crop  consti- 
tutes a  separate  cause  of  action,  and  if  united 
in  the  same  petition  should  be  separately 
stated.  Bunten  v.  Chicago,  R.  I.  &•  P.  R. 
Co.,  50  Mo.  App.  414. 

A  statement  of  a  claim  for  damages 
against  a  railway  company  for  depressing 
streets,  thereby  injuring  the  approach  to  de- 
fendant's store,  stating  that  the  work  was 
"unlawfully,  negligently,  and  wrongfully" 
done,  is  sufficient,  because  it  alleges  that 
the  work  was  negligently  done,  and  thus 
gives  a  cause  of  action,  though  the  work 
itself  may  have  been  lawful.  Quillinan  v. 
Canada  Southern  R.  Co.,  20  Am.  &•  Eng.  R. 
Cas.  31,  6  Ont.  567. 

The  obstruction  of  a  navigable  river  is  a 
public  nuisance;  but  an  individual  cannot 
maintain  an  action  to  recover  damages  un- 
less he  alleges  and  proves  some  special  in- 
jury to  himself,  independent  of  the  general 
injury  to  the  public.    Alabama  S.  R.  Nav, 


I 

S 


% 


000 


NUISANCE,  32-37. 


♦•■^ 


it- 


1^ 


Co.  V.  Georgia  Pac.  R.  Co.,  87  y^A».  1 54,  6  5(;. 
yi'('/>.  73.  South  Carolina  Steamboat  Co.  v. 
South  Carolina  R.  Co.,  30  So.  Car.  539,  4  Z. 
R.  A.  209,  9  5.  E.  Rep.  650.  C7(»r^'  v. 
Chicago  &•  N.  W.  R.  Co.,  70  ]Vis.  593.  36 
A^.  IV.  Rep.  326. 

32.  Defenses. — It  is  no  objection  to  an 
action  by  a  reversioner  that  tlie  act  com- 
plained of  is  also  an  injury  to  the  tenant  in 
possession,  nor  is  it  an  answer  that  the  cause 
of  the  alleged  injury  may  by  possibility  be 
removed,  or  the  nuisance  abated,  before  the 
determination  of  the  tenancy  for  years. 
Tinsman  v.  Belvidere  Del.  R.  Co.,  25  A\J. 
L.  255. 

33.  What  evidence  is  adniissilile. 
— In  a  suit  for  damages  for  creating  a  nui- 
sance in  the  vicinity  of  a  dwelling  house, 
evidence  of  the  difference  between  its  rental 
value  during  the  existence  of  the  nuisance 
and  prior  to  it  is  proper  for  the  jury.  Illi- 
nois C.  R.  Co.  v.  Grabill,  50  ///.  248. 

In  an  action  to  recover  damages  from  the 
operation  of  a  coal  shed,  and  the  handling 
of  coal  by  machinery  propelled  by  steam,  in 
a  populous  part  of  a  city,  many  owners  and 
occupants  of  buildings  in  the  vicinity  were 
adn.'..ted  to  testify  that  they  also  were  an- 
noyed and  injured  by  the  noise  and  dust. 
Held,  admissible  to  show  the  character  and 
extent  of  plaintiff's  injury,  and  as  tending 
to  prove  that  the  nuisance  was  capable  of 
inflicting  the  injury  complained  of.  Wylie 
V.  Elwood,  11^  III.  281,  25  A^.  E.  Rep.  570.— 
Following  Cooper  w.  Randall,  59  III.  317. 

In  an  action  for  a  nuisance  for  unlawfully 
constructing  and  operating  a  railroad  over 
defendant's  land,  proof  that  it  increased  the 
danger  of  fire  to  plaintiff's  buildings  is 
proper.  Harrington  v.  St.  Paul  &■*  S.  C.  R. 
Co.,  17  Minn.  215  {Gil  188),  4  ^/«.  Rjf.  Rep. 
216,  8  Am.  Ry.  Rep.  247. 

Where  the  nuisance  is  permanent,  wit- 
nesses are  permitted  to  give  their  opinion 
as  to  the  value  of  the  property  just  before 
and  just  after  the  creation  of  the  nuisance. 
Wallace  v.  Kansas  City  &•  S.  R.  Co.,  47  Mo. 
App.  49 1- 

34.  Wliat  evidence  is  inadinissilile. 
— Evidence  of  the  damage  to  adjoining 
property  by  a  side  track  and  turnout  is 
irrelevant,  in  a  suit  to  abate  such  track  as  a 
nuisance  and  recover  damage,  until  it  be 
shown  that  such  track  is  not  necessary,  and 
consequently  is  not  authorized  by  law  and 
constitutes  a  private  nuisance.  Carson  v. 
Central  R.  Co.,  35  Cal.  325. 


Wlieie  the  action  is  to  recover  special 
damages  for  erecting  a  nuisance  in  the 
street-ojiposite  plaintiff's  residence,  and  the 
damages  are  limited  to  those  which  oc- 
curred before  the  suit  is  brought,  evidence 
that  plaintiff's  land  would  sell  for  less  on 
account  of  the  nuisance  is  not  admissible. 
Hopkins  v.  Western  Pac.  R.  Co.,  50  Cal.  190, 
12  Am.  Ry.  Rep.  176. 

In  such  case  the  measure  of  damages  is 
the  decreased  market  value  of  plaintiff's 
property,  and  it  is  error  to  admit  evidence 
of  the  decreased  value  of  the  property  "  as 
a  family  residence."  Hopkins  v.  Western 
Pac.  R.  Co.,  50  Cal.  190,  12  Am.  Ry.  Rep. 
176. 

35.  Burden  of  proof.— Where  a  rail- 
road track  is  on  a  public  street,  owners  of 
property  in  the  vicinity,  to  sustain  a  com- 
plaint for  constructing  and  maintaining  it, 
must  establish  that  it  is  a  public  nuisance, 
and  that  they  have  sustained  special  dam- 
age. Black  V.  Philadelphia  <&-  R.  R.  Co.,  58 
Pa.  St.  249.  Dilley  v.  Wilkes-Barre  <S-  K. 
P.  R.  Co.,  2  Pa.  Dist.  91. 

3G.  Instructions.—  A  nuisance  grow- 
ing out  of  acts  not  authorized  by  law  must 
be  presumed  to  be  of  a  temporary  charac- 
ter, because  there  is  a  legal  mode  of  remov- 
ing it.  It  is  not  error  therefore  to  refuse  an 
instruction  based  upon  the  theory  of  the 
permanent  depreciation  of  plaintiff's  prop- 
erty by  such  a  nuisance.  Neitsey  v.  Balti- 
more <S-  P.  R.  Co.,  26  Am.  &»  Eng.  R.  Cas. 
553,  5  Mackcy  (D.  C.)  34. 

37.  Damages  recoverable,  gener- 
ally.—Annoyances  caused  by  the  shouting 
and  noises  made  by  those  having  charge  of 
stock  in  pens  cannot  be  regarded  as  an 
element  of  damages  in  an  action  against  a 
railroad  for  a  nuisance,  such  persons  not 
being  in  a  position  to  be  controlled  by  the 
company  or  its  agents,  nor  being  supposed 
to  be  encouraged  by  them.  Illinois  C.  R. 
Co.  V.  Grabill,  50  ///.  241.  Illinois  C.  R.  Co 
V.  Grabill,  50  ///.  248. 

When  the  injuries  are  the  result  of  causes 
which  may  be  removed,  or  a  nuisance  which 
may  be  abated,  the  measure  of  damages  is 
not  the  difference  in  the  value  of  the  land 
before  and  after  the  injury,  but  its  compar- 
ative productiveness.  Adams  v,  Durham 
&-  N.  R.  Ca.,  no  N.  Car.  325,  14  S.  E.  Rep. 

857. 

Ill  an  action  by  a  religious  society  against 
a  railroad  for  maintaining  a  nuisance  near 
its  church  edifice,   the  damages  are  not 


er  special 
:e  in  tiie 
c.  and  tl)e 
which  oc- 
,  evidence 
or  less  on 
dmissible. 
o  Cal.  190, 

damages  is 

plaintiff's 

evidence 

)perty  "  as 

Western 

Ky.  Kep. 

lere  a  rail- 
owners  of 
ain  a  com- 
itaining  it, 
c  nuisance, 
tecial  dam- 
'.  R.  Co.,  58 
arre  &>  K. 

ince  grow- 
y  law  must 
ary  charac- 
e  of  reniov- 
to  refuse  an 
ory  of  the 
itifl's  prop- 
ey  V.  Balii- 
ng.  K.  Cas. 

e,  geiicr- 

ie  shouting 
g  charge  of 
rded  as  an 
n  against  a 
lersons  not 
illed  by  the 
g  supposed 
linois  C.  R. 
is  C.  R.  Co 

lit  of  causes 
sance  which 
damages  is 
)f  the  land 
its  compar- 
V,  Durhavi 
\  S.  E.  Rep. 

iety  against 
isance  near 
es  are  not 


NUISANCE,  38-40. 


901 


limited  to  the  depreciation  of  the  property, 
but  may  include  damages  for  the  discomfort 
to  the  congregation  when  assembled.  Bal- 
timore &*  P.  R.  Co.  V.  Fifth  Baptist  Church, 
II  Am.  (S-  Eng.  R.  Cas.  15.  108  U.  S.  317, 
1  Sup.  Ct.  Rep.  719,— Applied  in  Lahrx/. 
Metropolitan  El.  R.  Co..  104  N.  Y.  268,  10 
N.  E.  Rep.  52S.  4  N.  Y.  S.  R  340.  Distin- 
guished IN  Besei  iH  V.  Pennsylvania  R. 
Co.,  33  Am.  &  Eng.  R.  Cas.  107,  50  N.  J.  L. 
235.  Followed  in  Fifth  Nat.  Bank  v. 
New  Yori<  El.  R.  Co.,  28  Fed.  Rep.  231,  118 
U.  S.  608,  7  Sup.  Ct.  Rep.  23.  Quoted  in 
Pennsylvania  R.  Co.  v.  Angel,  41  N.  J.  Eq. 
316. 

And  the  jury  cannot  consider,  for  the 
purpose  of  reducing  the  damages,  former 
judgments  recovered  for  the  same  nuisance 
at  earlier  periods.  Baltimore  &"  P.  R.  Co. 
V.  Fifth  Baptist  Church,  137  U.  S.  568,  11 
Sup.  Ct.  Rep.  185 —Following  Troy  v. 
Cheshire  R.  Co.,  23  N.  H.  83 ;  Warner  v. 
Bacon,  8  Gray  (Mass.)  397;  Fowle  v.  New 
Haven  &  N.  Co.,  107  Mass.  352,  112  Mass. 

334- 

38.  Depreciation  in  value  of  prem- 
ises.—The  depreciation  in  the  market  value 
of  land  arising  from  a  permanent  injury 
thereto  resulting  from  a  nuisance  is  the 
proper  measure  of  damages  to  the  owner. 
Kankakee  &»  S.  R.  Co.  v.  Horan,  41  Am.  &* 
Eng.  R.  Cas.  13.  131  ///.  288.  23  N.  E.  Rep. 
621  ;  ajfirming  30  ///.  App.  552.  Baugh  v. 
Texas  &*  N.  O.  R.  Co.,  46  Am.  (S-  Eng.  R. 
Cas.  105,  80  7V.r.  56,  15  5.  IT.  Rep.  587. 

Where  the  evidence  shows  that  plaintifT 
was  actually  endeavoring  to  sell  his  prop- 
erty, and  at  that  time  tliere  was  a  certain 
market  price  for  it  were  the  obstruction 
removed,  but  with  it  remaining  only  a  cer- 
tain lower  price,  the  jury  may  render  their 
verdict  for  the  difference  between  the  two 
prices,  with  legal  interest  from  the  time 
plaintiff  was  so  deprived,  subject  to  the 
statute  of  limitations.  Hetzel  v.  Baltimore 
6-  O.  R.  Co.,  6  Mackey  (D.  C.)  i. 
,  But  an  essential  element  of  this  method 
of  measuring  the  damages  is  that  the  jury 
shall  find  not  only  that  an  attempt  to  sell 
was  made  and  defeated,  but  the  time  when 
it  was  so  defeated  ;  for  otherwise  they  can- 
not determine  the  extent  to  which  plain- 
tiff has  been  deprived  of  the  enjoyment  of 
the  difference  of  prices.  Hetzel  v.  Balti- 
more (S-  O.  R.  Co.,  6  Mackey  (D.  C.)  i. 

The  right  to  recover  for  the  diminution 
of  the  value  of  the  use  of  one's  premises  on 


account  of  a  nuisance  permitted  on  an  ad- 
joining lot  must  be  limited  to  the  time  dur- 
ing which  the  nuisance  has  existed.  Quinn 
V.  Chicago,  B.  (S-  Q.  R.  Co.,  17  Am.  (S-  Eng. 
R.  Cas.  63,  63  Iowa  510,  19  N.  W.  Rep.  336. 
The  measure  of  damages  to  a  dwelling 
house  caused  by  a  temporary  nuisance  is 
the  depreciation  in  rental  value  during  the 
time  the  nuisance  is  maintained.  Shively 
v.  Cedar  Rapids,  I.  F.  &*  N.  IV.  R.  Co.,  74 
foTva  169,  7  Am.  St.  Rep.  471,  37  JV.  W.  Rep, 

'33. 

In  estimating  the  damages  resulting  from 
a  nuisance  in  maintaining  unwholesome 
cattle  pens,  it  is  proper  to  consider  the  de- 
preciation in  the  value  of  plaintiff's  property 
occasioned  thereby,  and  in  addition  the  in- 
jury and  annoyance  to  plaintiff  while  oc- 
cupying the  premises.  Illinois  C.  R.  Co.  v. 
Grabill,  50  ///.  241.— Not  followed  in 
Carl  V.  Sheboygan  &  F.  du  L.  R.  Co.,  46 
Wis.  625. 

30.  Future  and  eousequential 
damages.— Under  Minn.  Gen.  St.  1878, 
ch.  75,  §  44,  plaintiff  may  recover  damages 
arising  from  a  nuisance  both  direct  and  con- 
sequential. If  necessary  to  a  complete  and 
effectual  abatement  of  the  nuisance,  an  in- 
junction against  its  continuance  may  prop- 
erly be  adjudged  for  that  purpose.  Colstrum 
V.  Minneapolis  &*  St.  L.  R.  Co.,  33  Minn, 
516,  24  N.  W.  Rep.  255. 

An  adjoining  owner  cannot  recover  pros- 
pective damages  for  the  continuance  of  a 
nuisance  which  consists  of  a  railroad  which 
has  been  abandoned,  and  a  building  which 
has  burned  down.  Advance  E.  &*  W,  Co. 
V.  Eddy.  23  ///.  App.  352. 

40.  Damages,  wlien  limited  to 
comiiieiieemeiit  of  suit.— Where  dete- 
rioration of  the  value  of  land  is  occasioned 
by  a  nuisance  created  by  the  construction 
of  a  railroad,  such  nuisance  is  a  permanent 
one,  so  that  all  damage  for  ppst  and  future 
injury  to  the  property  may  be  recovered  in 
one  suit.  Kankakee  &*  S.  R.  Co.  v.  Horan, 
41  Am.  &*  Eng.  R.  Cas.  13,  131  ///.  288,  23 
N.  E.  Rep.  621  i  affirming  22  ///.  App.  145. 

Where  a  nuisance  is  permanent  and  con- 
tinuing the  damages  resulting  from  it  should 
all  be  litigated  in  one  suit,  but  when  it  is 
not  permanent,  but  depends  upon  accidents 
and  contingencies,  so  that  it  is  of  a  transient 
character,  successive  actions  may  be  brought 
for  injury  as  it  occurs  ;  and  an  action  for 
such  injury  would  not  be  barred  by  the 
statute  of  limitations  unless  the  full  peiiud 


fe 


I 
I 


902 


NUISANCE,  41.— OBJECTIONS. 


m 

If"" 


of  the  statute  had  run  against  the  special 
injury  before  the  siiii.  Austin  &^  N,  W,  N. 
Co.  V.  Anderson,  79  Tex.  427,  1 5  S.  IV.  Rep. 
484.— QuoTiNO  Houston  Water  Wori<s  v. 
Kennedy,  70  Tex.  233. 

Where  the  action  is  to  recover  special 
damages  for  erecting  a  nuisance  in  the 
street  in  front  of  plaintiff's  property,  the 
company  is  liable  only  for  the  damages  ac- 
tually sustained  prior  to  the  commence- 
ment of  the  suit;  and  every  injury  caused 
by  the  continuance  of  the  nuisance  affords 
a  new  cause  of  action.  Hopkins  v.  Western 
Pac.  R.  Co.,  50  Cal.  190,  12  Am.  Ry.  Rep. 
176. 

If  a  railroad  company  lawfully  located 
upon  a  street  in  a  city,  under  its  charter  and 
by  permission  of  its  local  government,  uses 
the  street  beyond  what  is  necessary  for  the 
proper  running  of  its  trains,  and  this  sub- 
stantially destroys  the  easement  of  way  and 
of  ingress  and  egress  appurtenant  to  an 
abutting  lot,  the  owner  of  such  lot  can 
maintain  successive  actions  for  such  nui- 
sance, recovering  the  damages  that  have 
accrued  up  to  the  time  each  action  was 
brought ;  and  a  recovery  in  one  action  will 
not  bar  a  subsequent  one  brought  for  a  con- 
tinuance of  such  wrongs.  Harmon  v.  Louis- 
ville, N.  O.  <S-  T.  R.  Co.,  87  Tenn.  614,  11  S. 
W.  Rep.  703. —Quoting  Uline  v.  New 
York  C.  &  H.  R.  R.  Co.,  loi  N.  Y.  98. 

When  nuisances  complained  of  are  of  a 
temporary  character,  such  as  may  be  volun- 
tarily removed  or  avoided  by  the  wrong- 
doer, or  such  as  the  injured  party  may  cause 
to  be  abated,  only  such  damages  as  have 
accrued  up  to  the  trial  can  be  recovered. 
For  such  damages  depreciation  in  the  value 
of  the  property  affected   is  not  the  meas- 


ure. Baugh  v.  Texas  Sf  N.O.  R.  Co.,  46 
Am.&r*  Eng.  R.  Cas.  105,  80  Tex.  56,  15  S. 
W.  Rep.  587. 

Judgments  refer  to  the  situation  ot  the 
parties  at  the  commencement  of  the  suit, 
and,  as  a  general  rule,  damages  are  allowed 
in  personal  actions  only  to  that  date.  In 
the  case  of  continuing  injuries,  as  here,  from 
destruction  of  a  lot  owner  s  right  of  way, 
compensation  for  subsequent  loss  must  be 
sought  in  another  suit  after  the  damage  is 
sustained.  Brewster  v.  Sussex  R.  Co.,  40 
N.J.  L.  57. 

41.  Judguieiit,  and  order  of  abate- 
iiieiit. — The  court  in  an  action  for  nui- 
sance rendered  judgment  on  the  verdict 
for  damages,  and  on  motion  ordered  the 
nuisance  abated.  Although  the  verdict  did 
not  necessarily  determine  the  continued  ex- 
istence of  the  obstruction,  it  was  conceded 
on  the  trial.  Held,  that  the  order  of  re- 
moval was  not  erroneous.  Piatt  v.  C/tica^o, 
B.  &•  Q.  R.  Co..  74  /oTva  127,  37  N.  IV.  Rep. 
107.— Following  Miller  v.  Keokuk  &  D. 
M.  R.  Co.,  63  Iowa  680. 


NUMBER. 
Of  directors  of  corporations,  see  Directors, 

ETC.,   1. 

—  jurors,  see  Eminent  Domain,  535 ;  Trial, 

28. 

—  shares  to  be  definitely  fixed  before  assess- 

ment levied,  see  Subsckiptiuns  to  ^'iTock, 
49. 

—  witnesses,  limiting,  see  Witnesses,  52. 


NURSING. 

Allowance  in  damages  for,  see  Children,  In- 
juries to;  184. 
Proof  of  expenses  of,  see  Damages,  00« 


O 


OATH. 

To  arbitrators  in  Canadian  expropriation 
proceedings, see  Eminent  Domain,  1257. 

—  commissioners,  jurors,  and  viewers,  to 
assess  land  damages,  see  Eminent  Do- 
main, 47  7»  504,  545,  913. 


OBJECTIONS. 

Allowing  witness  to  answer  without,  effect 

of,  see  Witnesses,  03. 
Construction  of  road  wi^'  >ut,  effect  on  land 

owner's  right  to  sue  <u  ejectment,  see 

Ejectment.  5. 


Disregarding  objections  not  properly  taken 
below,  see  Appeal  and  Error,  90-107. 

Effect  of  failure  to  make,  at  trial,  see  New, 
Ti.iAL.  8. 

For  defect  of  parties,  see  Parties  to  Actions, 
IG. 

How  to  be  taken  at  trial,  see  Eminent  Do- 
main, 90U-019 ;  Justice  of  the  Peace, 
23 :  Trial,  52-50. 

Necessity  of  making,  at  trial,  see  Elevated 
Railways,  193. 

To  defect  in  pleading,  waiver  by  failure  to 
make,  or  by  delay,  aee  PL£ADl^o  177* 
178. 


H.  Co.,  46 
.  56.  '5  S. 

on  of  the 
:  the  suit, 
re  allowed 
date.  In 
here,  from 
ht  of  way, 
3s  must  be 
damage  is 
•A'.  Co.,  40 

of  abate- 

n  for  nui- 
he  verdict 
rdered  the 
verdict  did 
itinued  ex- 
>  conceded 
rder  of  re- 
V.  C/tica^o, 
V.  IV.  Rep. 
)kuk  &  D. 


Directors, 
35;  Trial, 
fore  assess- 

S   TO  liTOCK, 

sssEs,  52. 

riLDREN,  In- 
s.  90. 


perly  taken 
,  00-107. 

il,  see  New, 

ro  Actions, 

MINENT  Do- 
THE  Peace, 

:  Elevated 

r  failure  to 
UNO    177, 


OBSTRUCTIONS. 


903 


To  evidence,  waiver  of,  see  Appeal  and  Er- 
ror, 07. 

—  jurisdiction,  see  Jurisdiction,  lO. 

—  questions  to  experts,  form  of,   see  Ele- 

vated Railways,  1  lO. 

—  regularity  of  condemnation  proceedings, 

see  Eminent  Domain,  341-301. 

—  report  of  commissioners  in  condemnation 

proceedings,  time  to  make,  see  Eminent 
Domain,  812. 

—  verdict  on  assessment  of  damages,  see 

Eminent  Domain,  829-841. 

Waiver  of,  by  going  on  with  hearing,  see 
Eminent  Domain,  301. 

When  may  be  made  for  the  first  time  on  ap- 
peal, see  Appeal  and  Error,  100»  107* 


OBSTEU€TIONS. 

Failure  to  discover,  when  contributory  negli- 
gence, see  Employes,  Injuries  to,  355. 

In  public  ground,  when  deemed  nuisances, 
see  Nuisance,  lO. 

—  street,  at  night,  unlighted,  see  Crossings. 

Injuries,  etc.,  at,  35. 
Near  track,  alleging  the  existence  of,  see 

Employes,  Injuries  to,  523. 
contributory  negligence  in  being  struck 

by,  see    Employes,   Injuries   to,  357- 

361. 
effect  of  notice  or  knowledge  of,  see 

Employes,  Injuries  to,  228. 
on  duty  to  look  and  listen,   see 

Crossings,  Injuries,  etc,  at,  295. 
negligence  in  allowing,  a  question  for 

jury,  see  Employes,  Injuries  to,  074- 

G80. 
Of  access  to  eating  house,  see  Refreshment 

Rooms,  3. 

highway,  see  Bridges,  etc,  47. 

premises,  as  an  element   of  land 

damages,   see  Eminent    Domain,   713- 

716. 
by  embankments,  see  Embank- 
ments, 3. 
measure   of  damages   for,  see 

Eminent  Domain,  1190. 

—  bridges  and  waterways,  when  limitation 

begins  to  run  in  actions  for,  see  Limita- 
tions DF  Actions,  30. 

—  flow  of  surface  water,  see  Flooding  Lands, 

33-39 1     Waters  and    Watercourses, 
28. 
water,  see  Bridges,  etc.,  48. 

—  highways,  as  an  element  of  land  damages, 

see  Emineni'  Domain,  718. 
at  railway  crossings,  see  Crossing  of 

Streets  and  Highways,  09. 
prosecution  for,  see  Criminal  Law,  32. 

—  navigation,  see  Hridges,   etc.,  82-88; 

Construction  of  Railways.  8 ;  Criminal 


Law,  33  ;  Eminent  Domain,  994  ;  Nui- 
sance,   11  {  Riparian    Rights,   9;  Wa- 
ters AND  Waiekcourses,  4,  5. 
Of  passage  between  train  and  station,  see 
Carriage  of  Passengers,  279-281. 

—  private  ways,  see  Private  Ways,  9-17. 
action  for  damages  for,  see  Eminent 

Domain,  995. 

prosecution  for,  see  Criminal  Law, 

34. 

—  shore  front,   remedies  for,  see  Riparian 

Rights,  lO. 

—  sidewalks,  by  express  companies,  see  Ex- 

press Co.mpanies,  3. 

—  street-cars  by  business  in  street,  see 
Street  Railways,  237. 

—  streets  and  highways,  action  for  damages 

for,  see  E.minent  Domain,  990. 

as  nuisances,  see  Nuisance,  9. 

prosecutions  for,  see   Criminal 

Law.  30. 
statement  of  cause  of  action  in 

actions  for,  see  Pleading,  22. 
as  an  element  of  damages  to  abutting 

owner,  see  Streets  and  Highways,  288. 

—  by  cars,    ordinance    forbidding,    see 

Streets  AND  Highways,  309. 
hacks,  see'HACKS  and  Hack  Lines, 

5. 
throwing   snow    from   track,    see 

Street  Railways,  174. 
liability  for,  see  Streets  and  Highways, 

108-175,403-412. 

—  the  mail,  prosecutions  for,  see  Criminal 

Law,  37. 

—  tracks,  arrests  for,  see  Arrest,  4. 

liability  of  lessee  for  injuries  caused 

by,  see  Leases,  etc,  109. 

of  street  railway  by  teams,  see S ireet 

Railways,  210. 

prosecution  for,  see  Criminal  Law,  30. 

when  amount  to  negligence,  see  Neg- 
ligence, 22. 

—  view  at  crossing,   effect  of.   on  duty  to 

look  and  listen,  see  Crossings,  Injuries, 
etc,  at.  280-307. 
when  not  negligence,  see  Negli- 
gence, 39. 

—  watercourses,   liability    for,  see  Waters 

AND  Watercourses,  13. 

On  or  near  track,  assumption  of  risk  as  to, 
see  Emi'Lov6s,  Injuries  to,  190. 

liability  of  carrier  of  passengers 

for  injuries  caused  by,  see  Carriage  of 
Passengers,  178. 

company  to  employe  in- 
jured by,  see  Employes,  Injuries  to,  80- 
92. 

—  side  track,  assumption  of  risk  as  to,  ques- 

tion for  jury,  see  Employes,  Injuries  to, 
711. 


S 


s 


s 


1-^ 


904 


OCCUPANCY— OFFICERS. 


Stumbling  over  by  passenger,  when  contrib- 
utory negligence,  see  Carriage  of  Pas- 
sengers, 440. 


r-    '!>] 


?.i  n 


I 


'm 


iP.'ai<«> 

it'? ' ' 

at  v.*!"* 

181 


1^: 


OCCUPANCY. 

Of  adjoining  premises  by  plaintiff,  allegation 
of,  see  Animals,  Injuries  to,  340. 

—  land,  when  constitutes  a  taking,  see  Emi- 

nent Domain,  1S7. 

—  street,  by  steam   road,    nature   of,  see 

Streets  and  Highways,  124. 

OFFER. 

By  carrier  to  deliver  goods,  liability  after, 
see  Carriac.e  ok  Mrrciiandisk,  i{48. 

Of  compensation,  effect  of,  on  right  to  costs, 
see  Eminent  Domain,  1 144,  1228. 

—  employment  after  injury,  competency  of 
evidence  of,  see  Evidence,  01» 

—  proof,  see  Trial,  40. 

To  allow  judgment,  effect  of,  on  right  to 
costs,  see  Costs,  2;  Eminent  Domain, 
771. 

—  compromise  claims  for  lost  baggage,  see 

Baggage,  110. 
competency  of  evidence  of,  see   Evi- 
dence, OO,  221. 

—  purchase  or  sell,  evidence  of,  see  Elevated 

Railways,  112. 

proof  of  value  by,  see  Eminent 

Domain,  024,  025. 

—  sell  at  a  given  price,  competency  of  evi- 

dence of,  see  Evidence,  20. 

—  subscribe  is  not  a  contract,  see  Subscrip- 

tions TO  Stock,  4. 

OFFICERS. 

Bills  and  notes  executed  by,  see  Bills,  etc., 
12. 

payable  to.  see  Bills,  etc.,  13. 

Burden  of  proof  as  to  authority  of,  see  Evi- 
dence, IIJO. 

By  whom  railway  aid  bonds  may  be  exe- 
cuted, see  Municipal  and  Local  Aid, 
.'t05. 

Competency  of,  as  witnesses,  s;e  Witnesses, 
7,8,  14. 

evidence  of  authority  of,  see  Evidence, 

1 8,  52. 

Custody  by,  of  property  attached,  see  At- 
tachmknt,  ei'c,  48. 

Declarations  of,  while  acting  within  scope  of 
power,  si'c  EviDKNCK,  203. 

Dissolution  for  failure  to  elect,  see  Dissolu- 
tion, Eic,  !i. 

Estoppel  by  acts  of,  see  Estoppel,  31. 

Executions  against  defaulting,  see  Western 
&  ATL.VNTIC  R.  Co.,  4. 


Exemption  from  liability  for  negligence  of, 
see  Passes,  35. 

Fraud  and  misconduct  of,  no  defense  against 
innocent  purchaser  of  bonds,  see  Munici- 
pal AND  Local  Aid,  353. 

Illegality  of  contracts  to  influence  elections 
of.  see  Contracts,  05. 

Mandamus  to,  see  Mandamus,  23,  24. 

Mismanagement  by,  as  ground  for  receiver, 
see  Rkceivers,  18. 

Non-residence  of,  when  forfeits  franchise, 
see  Charters,  80. 

Of  cities,  see  Municipal  Corporations,  20. 

—  company,  admissions  by,  as  evidence,  see 

Evidence,  103. 

when  may  be  appointed  receivers,  see 

Receivers,  lO. 

—  construction  companies,  rights  and  pow- 

ers of,  see  Construction  of  Railways, 
122. 

—  government    railroads,    liability  of,    see 

Government  Railroads,  O. 
limitation  of  suits  against,  see  Gov- 
ernment Railroads,  14. 

—  land  department,  authority  of,  see  Public 

Lands,  1. 

—  new  company,  relation  to  creditors  of  old 

company,  see  Consolidation,  41. 

Peril  occasioned  by  acts  of,  see  Employ£s, 
Injuries  to,  333. 

Power  of  directors  to  appoint,  see  Directors, 
ETC.,  35. 

Powers  of,  in  effecting  arrests,  see  Arrest, 
5. 

issuing  railway  aid  bonds,  see  Mu- 
nicipal AND  Local  Aid,  270. 

Presiding  over  jury  in  assessment  of  dam- 
ages, functions  and  duties  of,  see  Eminent 
Domain,  540. 

Public  utterances  of,  when  release  sub- 
scriber to  stock,  see  Subscriptions  to 
Stock,  140. 

Reports  of,  admissibility  of,  in  evidence,  see 
Carriage  of  Passengers,  508 ;  Evi- 
dence, 243. 

Right  of,  to  contract  for  construction  of 
road,  see  Construction  ok  Railways, 
18. 

Salaries  of,  when  may  be  reached  in  attach, 
ment,  see  Atiachment,  etc.,  30. 

Temporarily  in  state,  service  of  process  on, 
see  Process,  20. 

Validity  of  contracts  made  by,  see  Con- 
tracts, 3,  4. 

Warrant,  how  far  protects,  see  Taxation, 
298. 

Weight,  as  evidence,  of  certificates  of,  see 
Evidence,  205. 

I.  IN  GENERAL 905 

n.  PARTICULAR  OFFICERS 907 


OFFICERS,  1-4. 


005 


I.  IH  OEHZBAL. 

1.  Election.— Under  i  N.  Y.  Rev.  St. 

603,  §  5,  authorizing  any  person  who  "  may 
be  aggrieved  by,  or  may  complain  of,  any 
election  "  of  directors  of  a  corporation  to 
make  application  to  the  supreme  court  to 
compel  a  new  election,  only  some  person 
whose  rights  have  been  infringed  and  who 
IS  justly  entitled  to  complain  may  institute 
the  proceedings.  In  re  Syracuse,  C.  <S-  N. 
V.  A\  Co.,  91  ^V.   v.  I. 

Where  application  is  made  under  the 
above  statute  for  a  new  election  by  one  who 
was  not  a  stockholder  at  the  time  of  the 
election  complained  of,  but  who  has  subse- 
quently received  a  certificate  of  stock  from 
one  who  took  part  therein,  he  does  not  oc- 
cupy such  a  position  as  to  authorize  the 
court  to  interfere.  /«  re  Syracuse,  C.  &*JV. 
v.  A\  Co..  91  N.  V.i. 

ii.  Po\ver»,genepaIly.— An  officer  of  a 
railroad  company  has  no  power  by  virtue  of 
his  otiice  simply  to  let  a  contract  on  behalf 
of  the  company  for  the  construction  of  a 
portion  of  its  road,  when  the  same  is  in- 
cluded in  a  part  already  being  constructed 
by  other  parties  under  a  contract  made 
with  the  board  of  directors.  Blanding  v. 
Davenport,  I.  Sf  U.  R.  Co.,  57  Am.  &•  Eng. 
R.  Cas.  428,  88  Iowa  225,  55  N.  W.  Rep.  81. 

There  is  nothing  to  prevent  an  officer  of 
a  railroad  company  from  being  trustee  in 
a  mortgage  executed  by  the  company  to  se- 
cure Its  bonds,  and  from  taking  and  holding 
title  to  the  property.  Ellis  v.  Boston,  H.  &* 
E.  R.  Co.,  107  Mass.  i. 

The  managing  officers  of  a  company  have 
power  to  employ  attorneys  without  any 
special  authorization  to  that  effect  from 
their  board  o(  directors.  Turner  v.  Chilli- 
cothe  Sf  D.  C.  R.  Co.,  51  Mo.  501,  3  Am.  Ry. 
Rep.  248. 

Where  a  statute  authorizes  a  company  to 
appoint  a  committee  of  three  as  commis- 
sioners ot  a  sinking  fund,  and  authorizes 
them  to  excnange  old  bonds  for  new  ones, 
in  effecting  such  exchange  all  three  must 
act  together,  and  an  e-xchange  made  by  two 
without  consultation  or  concurrence  of  the 
other  member  is  utterly  void.  North  Caro- 
lina R.  Co.  v.  Stvepson,  71  A^.  Car.  350. 

An  officer  of  a  railroad  cannot  without 
authority  of  law  bind  the  state  in  regard  to 
the  boundary  of  a  right  of  way  granted  to 
the  state  for  the  use  of  the  railroad,  such 
boundary  having  been  definitely  tixed,  by 


any  agreement  or  negotiation  with  a  pur- 
chaser of  a  part  of  such  right  of  way. 
Dougherty  v.  Western  <S-  A.  R.  Co.,  53  Ga. 
304. 

Where  an  officer  of  a  railroad  company 
loans  funds  belonging  to  the  company 
which  It  IS  unable  to  collect,  and  which  it 
charges  to  such  officer  and  assigns  the  de- 
mand to  him,  this  will  not  enable  him  to  sue 
for  it  under  i  N.  Y.  Rev.  St.  603,  §  4,  pro- 
hibiting the  assignment  or  transfer  of  cor- 
porate property  to  officers  thereof,  if  the 
loan  was  made  in  the  company  s  business, 
or  in  aid  of  a  work  auxiliary  thereto. 
Cheever  v.  Gilbert  El.  R.  Co..  ii/.  &*S.  (N, 

y.)  478. 

A  railway  company  being  indebted  to  a 
bank,  the  officers  of  the  company  arranged 
that  the  bank  sh6uld  garnish  certain  debts 
due  to  the  oompany,  the  costs  of  which  as 
between  attorney  and  client  the  railway 
company  was  to  pay.  HeM,  that  the  officers 
of  the  company  had  authority  without  a 
resolution  of  the  directors  to  enter  into  such 
an  agreement,  and  that  the  same  need  not 
be  under  the  corporate  seal.  Hamilton  &* 
P.  D.  R.  Co.  V.  Gore  Bank,  20  Grant  s  Ch. 
(U.  C.)  190. 

3.  Fiduciary  relation  with  com- 
pany.*—An  officer  of  a  corporation  can- 
not bind  the  latter  where  he  professes  to 
represent  only  himself,  and  to  deal  with  the 
company  as  if  he  had  no  official  relation  to 
it.  Winchester  v.  Baltimore  &*  S.  R.  Co.,  4 
Md.  231. 

The  officers  of  a  railroad  corporation  are 
directly  responsible  to  its  stockholders  upon 
the  general  principles  of  equity  for  losses 
and  defalcations  occasioned  as  well  by  their 
neglect  as  by  their  positive  misconduct  and 
breach  of  trust.  Shea  v.  Knoxville  &»  K, 
R.  Co.,  6  Baxt.  (Tenn.)  277. 

4.  Acts  of,  when  bind  corpora- 
tion.!—Neither  the  reports  of  officers  of  a 
corporation  made  to  its  stockholders,  nor 
reports  made  to  its  directory,  in  which  cer- 
tain claims  for  which  the  corporation  is  not 

*  Fiduciary  relations  of  officers  and  directors, 
see  note,  I  Am,  &  Eng.  R.  Cas.  435. 

Fiduciary  capacity  of  officers  ;  contracts  with 
corporations,  see  notes,  13  Am.  &  Eng.  R.  Cas. 
93,  119. 

Officer  making  fraudulent  use  of  position,  see 
note,  16  Am.  &  Enu.  R.  Cas.  569. 

Officers  of  corporations  dealing  with  company, 
see  notes,  4  Am.  &  Eng.  R.  Cas.  306;  16  /</.  93. 

t  Authority  of  railroad  officers  and  employes 
to  bind  company  for  medical  services,  see  notes, 
44  Am.  &  Eng.  R.  Cas.  461;  11  /</.  30. 


i 


90G 


OFFICERS,  6,6. 


i 


r  j- 


S4  t         >'■ 


bound  are  estimated  as  liabilities  of  the  cor- 
poration 11  bind  the  corporation  to  pay 
either  principal  or  interest  of  debt,  or  pre- 
vent It  from  changinj;  its  purpose  with  re- 
gard thereto.  Haii  v.  Mobile  &*  M.  A'.  Co., 
58  A/a.  10. 

Where  suit  is  brought  in  the  name  of  a 
railroad  corporation  by  an  executive  ofhcer 
without  authority,  and  the  corporation  with 
knowledge  fails  to  object  within  a  reasona- 
ble time,  it  will  be  bound  by  the  act  of  the 
officer.  And  any  evidence  is  admissible 
which  tends  to  prove  either  a  previous  au- 
thority or  a  subsequent  ratification.  West' 
brook's  Appeal,  57  Conn.  95,.  16  All.  Rep.  724. 

The  promises  of  officers  of  a  company  to 
pay  for  land  occupied  by  the  company  cannot 
be  received  in  evidence  to  bind  the  com- 
pany without  proof  of  tl'eir  authority  to 
maice  tliem.  James  v.  Indianapolis  &*  Si.  L, 
R.  Co..  91  ///.  554. 

5.  Wlieii  i>cr.suiinlly  liable.  —  The 
evidence  showed  that  pluiiitifl,  as  an  officer 
of  a  railroad  company,  made  a  false  certifi- 
cate to  the  effeet  that  ten  per  cent,  of  the 
capital  stock  of  the  company  had  been  sub- 
scribed and  paid  in.  A  statute  of  the  state 
of  Illinois,  where  the  company  was  organ- 
ized, provided  that  if  any  officer  of  sucli 
company  made  a  false  certificate  or  report 
he  should  be  liable  for  the  debts  of  the 
company  contracted  while  he  was  an  officer. 
The  company  became  indebted  to  plaintiff 
for  salary,  which  he  was  unable  to  collect 
directly,  and  brouf^ht  suit  against  defend- 
ant, a  subscriber  to  the  stock  of  the  com- 
pany. Held,  that  the  prohibition  of  the 
statute  applied  and  prevented  his  collecting 
the  amount.  Wait  v.  Ferguson,  14  Abb. 
Pr.  (N.   Y.)  379. 

Plaintiff  and  a  railroad  company  a<;reed 
to  arbitrate  certain  litigation,  and  that  both 
should  abide  by  the  award  ;  whereupon  cer- 
tain officers  of  tlie  company  guaranteed  tiie 
performance  of  the  contract  on  tlie  part  of 
the  company.  Held,  iliat  they  were  liable 
for  a  breach  of  the  contract,  and  were  es- 
topped from  denying  the  existence  of  the 
corporation.     Mason  v.    Nichols,   22    Wis. 

376- 

«.  Official  bomls.*— Suit  was  brought 
on  the  bond  of  a  railroad  official,  dated  in 

»  Notice  of  default,  see  note,  16  Am.  &  Eng. 
R.  Cas   5^4. 

Official  bonds  ;  liability  of  surety  where  there 
is  increase  of  capital  stock,  business,  etc.,  see 
note,  26  Am.  &  Eno.  R.  Cas.  94. 


1857,  and  it  was  alleged  in  the  declaration 
that  the  bond  had  been  broken  by  the  fail- 
ure of  the  official  to  account  before  and  up 
to  the  time  of-  his  death,  which  took-  place 
in  1868.  On  the  calling  of  the  case  defend- 
ant moved  to  dismiss  l)ecause  the  affidavit 
was  not  filed  as  to  the  payment  of  taxes. 
Held,  that  it  did  not  appear  that  the  debt 
sued  on  was  contracted  or  implied  before 
June  I,  1865.  Sirrine  v.  South  Western  R. 
Co.,  43  Ga.  280. 

Though  the  officer  of  a  railroad  is  bound 
to  know  the  by-laws  of  the  corporation,  it 
does  not  follow  that  the  sureties  to  his  bond 
are  |)resumed  to  know  them  unless  there  be 
a  reference  to  them  in  the  bond.  The  obli- 
gation of  the  sureties  is  confined  to  the 
words  of  their  bond,  and  cannot  be  extend- 
ed beyond  them.  Atlantic  &*  N,  C,  R.  Co, 
V.  Cowles,  69  N.  Car.  59. 

The  sureties  on  the  bond  of  a  railroad 
official  who  is  elected  for  one  year  are  not 
liable  where  he  is  continued  beyond  the 
time  without  a  new  bond,  and  for  a  default 
after  the  expiration  of  the  one  year,  not- 
withstanding the  provision  of  Tenn.  Code, 
§  148,  that  officers  of  a  private  corporation 
shall  hold  until  the  election  and  qualifica- 
tion of  their  successors.  Cincinnati,  C.  G. 
<S-  C.  R.  Co.   V.  Murrell,  11  Heisk.  (Tenn.) 

715- 

The  securities  on  the  bond  of  an  officer 
of  an  incorporated  company  for  the  faith- 
ful performance  of  his  duties  are  not  re- 
lieved from  liability  by  the  fact  that  the 
officer  was  already  a  defaulter  when  the 
bond  was  given,  provided  the  officers  of  the 
corporation  had  no  knowledge  of  the  def- 
alcation. Mere  negligence  in  them  in  fail- 
ing to  detect  the  fraud  will  not  relieve  the 
securities.  Bennett  v.  .S".  A.  R.  E.  B.  &*  L, 
Assoc,  S7  7V.I-.  72.— DisriNtiuisHiNt;  Graves 
V.  Lebanon  Nat.  Bank,  10  Bush  (Ky.)  23. 

A  local  agent  of  a  railroad  company  de- 
livered freights  without  collecting  the 
charges,  which  was  known  to  the  president 
of  the  company.  He  did  not  settle  Ins  ac- 
counts promptly,  and  the  deficit  grew  for 
eighteen  months,  wlien  he  was  dismissed. 
Tiiere  was  no  fraudulent  concealment  of 
these  facts  by  the  officers  (>(  the  company, 
though  the  sureties  of  the  agent  were  not 
informed.  Held,  that  the  sureties  were  not 
released  from  their  liability.  Richmond  &* 
P.  R.  Co.  V.  Kascy,  30  Graft.  (  Va.)  218. 

The  rules  and  regulations  of  a  corpora- 
tion, made  for  the  government  of  the  con- 


leclaration 
y  the  fail- 
re  and  up 
ook.  |)Iace 
sc  defend- 
e  atFidavit 
of  taxes. 
t  the  debt 
ied  before 
Vestern  Ji. 

1  is  bound 
)oration,  it 
o  his  bond 
3S  there  be 
The  obli- 
led  to  the 
be  extend- 
.  C.  Ji.  Co. 

a  railroad 
ear  are  not 
cyond  the 
r  a  default 

year,  not- 
enn.  Code, 
lorporation 
qualifica- 
\nati,  C.  G. 
'si;  (Tenn.) 


:  an  officer 
-  the  faith - 
ire  not  re- 
:t  that  the 

when  the 
icers  of  the 
of  the  def- 
em  in  fail- 
relieve  the 
/:.  JJ.  5-  L. 
I  NO  Graves 
(Ky.)  23. 
)inpany  de- 
eding the 
i;  president 
;tlii;  his  ac- 
it  grew  for 

dismissed, 
ealment  of 
t  company. 
It  were  not 
es  were  not 
ichmond  &* 
[.)  218. 

a  corpora- 
of  the  con- 


OFFICERS,  7-10. 


907 


duct  of  its  officers,  do  not  become  terms 
and  conditions  of  the  bond  of  its  officers, 
unless  such  an  intention  is  expressed  on 
the  face  of  the  bond.  liichmo'ul  ^  P.  A'. 
Co.  V.  A'tLuy,  30  Gratt.  (Va.)  218. 

7«  ConipciiMatlon.  —  A  railroad  com- 
pany may  pay  its  officers  without  violating 
any  principle  of  public  policy.  McDotvell 
V.  New  YorkSf  S.  B.  A'.  Co..  12  N.  Y.  S. 
A'.  877,  w<r«;. ,  46  //««  680. 

The  salary  allowed  the  president  of  a  cor- 
poration is  presumed  to  be  for  services  to 
be  performed ;  and  where  ail  the  property 
business,  and  franchises  of  the  corporation 
are  sold,  with  his  co-operation,  so  that  he 
has  no  further  services  to  perform,  the  con- 
tract as  to  salary  will  be  treated  as  canceled 
although  the  corporation  itself  is  not  dis 
solved,  /^ofijj-  Island  Ferry  Co.  v.  Terbell 
^%  N.   K  427. 

An  officer  of  a  corporation  cannot  recover 
salary  or  compensation  for  services  ren- 
dered unless  such  salary  or  compensation 
has  been  fixed  by  the  proper  corporate  au- 
thorities in  some  authorized  manner  ante- 
rior to  the  performance  of  the  services. 
Austin  City  A\  Co.  v.  Siais/ier,  1  Tex.  App. 
(Civ.  Cas.)  33. 

This  principle  is  not  affected  by  a  subse- 
quent resolution  agreeing  to  pay  for  such 
past  services.  A  recovery  at  law  cannot  be 
hafi  on  such  agreement.  Austin  City  K.  Co. 
v.  Swisher,  i   Tex.  App.  (Civ.  Cas.)  33. 

II.  PABTICULAS  OFnCEBB.* 

8.  Auditor.  —  Under  the  Companies 
Clauses  Act  1845,  §  91,  auditors  cannot  re- 
cover any  other  remuneration  than  tiiat 
fixed  at  a  general  meeting  of  the  company. 
Pa^^e  v.  Eastern  &*  M.  R.  Cos.,  1  C.&'E.  280. 

W.  Cjisliler.— The  rules  of  a  company 
requiicd  from  the  cashier  monthly  reports 
and  payments ;  the  bond  of  the  cashier  and 
his  securities  was  conditioned  that  he  should 
faithfully  discharge  his  duties  as  required 
by  the  rules,  "a  copy  of  whicii  he  acknowl- 
edged to  have  received."  He  neglected  to 
account  and  pay  over  for  six  montlis,  when 
he  was  dismissed,  and  the  sureties  were  not 
notified  of  his  default  for  three  months 
afterwards.  Held,  that  they  were  not  dis- 
charged. Pittsburg,  Ft  W.  ^^  C.  K.  Co.  v. 
Shaeffer.  59  J'a  St.  350. 


*  General  powers  of  president  and  vice-presi- 
dent of  corporations,  see  note,  14  L.  R.  A.  356. 


10.  Chief  engineer.— (i)  In  general.— 
The  office  of  chief  engineer  of  a  radroad  is 
not  a  public  office.  The  true  test  of  a  pub- 
lic office  is  that  it  is  parcel  of  the  adminis- 
tration of  government,  civil  or  military,  or 
is  itself  created  directly  by  the  law-making 
power,  and  only  an  information  in  the  na- 
urc  of  a  quo  warranto  will  lie  to  recover  the 
same.  Eliason  v.  Ccleman,  9  Am.  iS^  Eu};. 
K.  Cas.  433,  86  N.  Car.  235. 

Where  the  charter  and  by-laws  of  a  rail- 
road company  provide  that  the  chief  en- 
gineer could  only  be  appointed  by  the  presi- 
dent and  directors,  but  the  vice-president 
and  superintendent  were  charged  with  the 
management  of  the  affairs  of  the  corpora- 
tion— held,  that  they  had  the  implied  au- 
thority to  employ  an  engineer  where  there 
was  no  chief  engineer  and  the  services  of 
an  engineer  were  necessary  for  the  proper 
conduct  of  the  business.  Lewis  v.  Albe- 
marle &*  A'.  A'.  Co.,  95  .^V.  Car,  179. 

(2)Po7ver  to  contract. — It  is  not  within  the 
scope  of  the  authority  of  a  chief  engineer 
of  a  railway  company  to  enter  into  con- 
tracts on  behalf  of  his  employer  with  subor- 
dinate agents  or  servants  in  respect  to  their 
wages.  Gillis  v.  Wilmington,  O.  &*  E.  C. 
K.  Co.,  108  X.  Car.  441,  13  S.  E.  Rep.  11, 
215.  Willis  v.  Toledo,  A.  A.&'  N.M.  R. 
Co.,  72  Mich.  160,  40  N.  IV.  Rep.  205. 
Eijton  v.  European  &•  N.  A.  R,  Co.,  59  Me. 
520. 

No  presumption  can  arise  of  any  power 
in  the  chief  engineer  of  a  railroad  company 
which  is  constructing  its  road  to  make  a 
contract  for  building  depots,  the  defi:  ite 
location  of  which  is  one  of  the  most  im- 
portant duties  of  the  company,  and  belongs 
to  its  board  of  directors  unless  clearly  dele- 
gated elsewhere.  Bond  v.  Pontiac,  O.  (5-  /'. 
A.  R.  Co.,  zd  Am.  &«•  Eitg.  R.  Cas.  571,  62 
Mich.  643.  29  A'.  W.  Rep.  482. 

A  railroad  company  will  be  liable  to  an 
engineer  for  services  performed  under  a 
contract  with  the  company's  chief  engineer, 
where  the  contract  was  entered  into  and 
the  services  performed  without  any  knowl- 
edge tiiat  the  chief  engineer  did  not  have 
power  to  employ  assistants.  Gillis  v.  Du- 
luth,  N.  S.  Or'  S.  W.  R.  Co.,  34  Minn.  301, 
25  A'.  W.  Rep.  603. 

Plaintiff,  who  was  employed  by  a  con- 
tractor on  a  railroad,  proposed  to  discon- 
tinue work  on  account  of  the  contractor's 
inability  to  pay  him.  Thereupon  an  engi- 
neer of  the  company  stated  that  if  the  men, 


I 


*> 
■? 


s 


908 


OFFICERS,  11-13. 


II 


including;  plnintilT,  would  ro  on  and  coni- 
|>l(;tc  tlie  work  the  company  would  sec 
tlictn  paid.  //<•/</,  there  heing  notliing  to 
><liow  that  tlie  engineer  was  authorized  to 
make  such  promise,  tiiat  an  action  ai^ninst 
the  com|)any  will  not  lie  thereon.  Pirwrie 
V.  h'linuis  Pac.  A'.  Co.,  i  C'i>/o.  529. 

A  railroad  "ompany  directed  its  engineer 
to  procure  the  signatures  of  certain  con- 
tractors to  a  contract  for  work  that  they 
liad  proposed  to  do.  The  advertisements 
for  bids  011  the  work  provided  that  the  con- 
tractors should  be  required  to  enter  into 
contract  and  commence  the  "  work  without 
delay,"  but  no  particular  time  was  fixed  for 
the  execution  of  the  contract,  and  no  spe- 
cial limitation  as  to  time  was  imposed  upon 
the  engineer.  The  engineer  agreed  to  a 
delay  of  three  or  four  weeks.  NM,  that 
this  was  within  his  power,  and  that  the 
company  could  not  repudiate  the  contract. 
Pru//  V.  Hudson  River  li.  Co.,  21  N.  Y.  305. 

A  chief  engineer  of  a  railroad  company 
cannot  be  made  the  possessor  by  delegation 
of  the  double  power  of  locating  and  con- 
tracting for  the  erection  of  depot  buildings 
(if  he  can  be  at  all)  without  the  authority 
of  the  board,  on  which  the  law  imposes  the 
duty  of  conducting  the  corporate  business, 
winch  cannot  be  derived  from  anything  but 
their  concurrent  doings  ;  and  no  one  has  a 
right  to  rely  on  the  statements  of  an  agent 
concerning  his  own  authority.  Bond  v. 
Pontiac,  O.  &*  P.  A.  J\.  Co.,  26  Am.  <S-  Eng. 
Ji.  Ctis.  $71,62  M/c/i.  643,  29  A^.  /r. /»V/.  482, 

11.  Geucral  iiianuger.— Part  payment 
by  order  of  the  managing  officer  of  a  cor- 
poration of  a  claim  of  one  of  its  officers  for 
salary  for  service  previously  rendered  is  an 
acknowledgment  of  liability  on  the  part  of, 
and  binding  upon,  the  corporation.  5/. 
Louis,  I'l.  S.  (S>»  W.  K.  Co.  v.  Tiernan,  40 
Am.  &^  Eng.  li.  Ctis.  525,  37  A'an.  606,  15 
Pac.  Rep.  544. 

12.  Paymaster.— The  paymaster  of  a 
railway  company,  whose  duty  it  was  to  re- 
ceive and  pay  out  large  sums  of  money, 
gave  a  bond  conditioned  that  he  would 
faithfully  perform  the  duties  required  of 
him,  "  and  pnjmptly  p.iy  over  and  account 
for  all  moneys  behjiiging  to  the  company," 
and  deliver  to  the  company  all  property 
belonging  to  it  when  required.  Held,  that 
the  clause  relating  to  faithful  performance 
covered  the  whole  ground,  and  that  which 
followed  was  nothing  more  than  a  mere 
specification  of  tlie  piincipal  duties  of  his 


employment,  and  did  not  make  him  insurer 
of  the  moneys  in  his  hands  against  tlielt  01 
robbery  without  his  fault  or  negligence. 
Chicago,  li.  &^  Q.  R.  Co.  v.  /iar/Mt,  1 2C  A.'. 
603,  II  X.  E.  Rep.  867,  9  West.  Rep.  465  , 
affirntini^  20  ///.  App.  96. 

So  where  the  company  required  such' 
paymaster  lo  keep  the  moneys  in  a  roon' 
not  properly  protected  against  thieves  01 
burglars,  and  which  was  occupied  by  othei 
employes  jointly  with  such  paymaster,  one 
of  whom  had  access  to  the  safe,  and  a  iargc 
sum  was  stolen  during  the  absence  of  the 
paymaster,  without  any  negligence  or  want 
of  care  on  his  part,  he  was  not  liable  on  hi? 
bond  to  the  company.  Chitago,  B.  &*  Q,  A. 
Co.  V.  Bartlett,  120  ///.  603,  11  A^.  E.  Rep. 
867,  9  West.  Rep.  469 ;  affirming  20  /A. 
App.  96. 

The  office  of  a  traveling  paymaster  of  a 
railway  company  is  simply  to  pay  the  in- 
debtedness specified  upon  the  roll,  which 
limits  his  authority,  and  he  has  no  power 
to  contract  for  his  principal ;  he  cannot  ac- 
cept orders  drawn  upon  it.  Stebbins  v. 
Union  Pac.  R,  Co.,  2  Wyom.  71. 

13.  PiircIiaHiiig  agent.  —  The  by- 
laws of  defendant  provided  that  "  the  pur- 
chasing agent  shall,  under  the  direction  of 
the  executive  committee  or  some  one  au- 
thorized by  them,  buy  all  materials  and 
supplies  in  general  use  in  every  department 
of  the  service,  excepting  such  articles  or 
materials  the  purchase  of  which  may  be 
specially  entrusted  to  other  parties, 
shall  order  for  and  furnish  supplies 
various  departments  on  written  r  .1- 
tions  of  the  heads  thereof  or  such  ler 
off.:ers  of  the  company  as  may  be  desig- 
nated by  the  president  or  first  vice-presi- 
dent. Such  requisition  to  be  examined  and 
approved  by  the  auditing  committee,  to 
whom  he  shall  certify  all  bills  for  purchases 
made  by  him."  Held,  that  the  purchasing 
agent  had  authority  to  make  contracts  to 
supply  defendant  wi!.h  all  blank  books  and 
printed  blanks  that  it  would  require  in  its 
business.  Levey  v.  New  York  C.  <S»  //.  R. 
R.  Co.,  53  N.  Y.  S.  R.  579,  4  Misc.  415 ;  af- 
firmed in  144  A'.   Y.  649,  39  A'.  E.  Rep.  493. 

Following  the  usual  method  of  business, 
plaintiff's  assignor  put  in  bids  both  for  the 
supply  of  blank  books  and  printed  blanks 
as  above  stated,  which  were  accepted  by 
the  chief  clerk  of  the  purchasing  agent. 
The  jury  found,  on  sufficient  evidence,  thiit 
the  relations  of  the  chief  clerk  to  the  pur- 


Ir 


OFFICERS,  14. 


900 


chasing  agent  were  such  ns  to  make  his 
action  in  Ic^ai  eflfect  tlie  purchasing  ajjcnt's. 
Held,  tiiat  a  verdict  for  plamtid  fur  an  un- 
disputed hrcach  of  tiie  contract  by  fiefend- 
ant  siiuuld  be  afhrmed.  Levey  s,  AVk'  York 
C.  A-  H.  A\  A\  Co.,  53  A'.  V.  S.  A\  579.  4 
aU/'sc,  415  ;  ajfirmed  in  144  N,  Y.  649,  39  N. 
E.  Rfp.  493. 

14.  SoiTetary.— (I)  In  general.— IXv^ 
office  of  secretary  of  a  railroad  company 
confers  no  authority  upon  tlic  incumbent  to 
bind  the  company  by  a  paper  evidencing  on 
its  face  a  liability  on  the  part  of  the  com- 
pany to  a  third  person  for  the  construction 
of  part  of  its  road  which  is  already  under 
contract  b  its  board  of  directors.  liland- 
ing  V.  Davenport,  I.  &*  D.  A'.  Co.,  57  Am. 
(S^-  /Oig.  A'.  Cits.  428,  88  /o7va  225,  55  jV.  W. 
Rep.  81.  — Reviewing  St.  Louis,  I.  M.  &  S. 
R.  Co  V  Camden  Bank,  47  Ark.  541,  i  S. 
W.  Rep.  704. 

Where  the  secretary  of  a  company  is  au- 
thorized by  a  board  of  directors  to  execute 
a  mortgage  to  secure  a  specific  debt,  lie  has 
not  the  power  to  insert  a  provision  in  the 
mortgage  agreeing  to  pay  in  addition  to 
the  debt  an  attorney's  fee,  and  a  ratifica- 
tion of  the  mortgage  will  not  be  deemed  a 
ratification  of  this  provision  where  it  ap- 
pears that  the  directors  had  no  special 
knowledge  of  its  contents,  but  acted  on 
their  former  vote  authorizing  it.  Pacific 
Rolling  Mill  Co.  v.  Dayton,  S.  <S-  G.  R.  K. 
Co.,  7  Sawy.  (I/.  S.)  61,  5  Fed.  Rep.  852. 

PlaintilT  sued  for  the  conversion  of  a  note 
and  mortgage  which  he  had  executed  to  a 
railroad  company,  and  which  he  testified 
that  he  delivered  in  escrow  either  to  defend- 
ant or  the  secretary  of  the  company.  Held, 
that  if  he  delivered  it  to  the  secretary  it 
wp  a  delivery  to  the  company.  Patterson 
V.  llidl,  19  Wis.  243. 

The  secretary  of  a  railroad  company 
bought  a  set  of  books  with  his  own  funds, 
and  entered  in  them  the  minutes  of  the  pro- 
ceedings of  the  corporators  and  received 
1  tlicin  the  subscriptions  of  stock.  Held, 
that  the  possession  of  the  secretary  was  the 
possession  of  the  company ;  that  in  going  out 
of  otrice  he  had  no  right  to  the  books;  that  he 
had  no  lien  on  tiiem  either  for  the  purchase 
money,  or  for  his  services  as  secretary,  or 
for  the  use  and  occupation  of  his  premises 
by  the  company  while  he  was  secretary; 
and  that  the  company  was  entitled  to  a 
peremptory  mandamus.  State  ex  rel.  v. 
Goll,  32  N.  /.  L.  285. 


Knowledge  possessed  by  the  secretary  of 
a  corporation  touching  his  business  and 
coining  within  the  scope  of  his  duties  as 
such  secretary  is  the  corporation's  knowl- 
e(l;,'e.  That  such  secretaiy,  for  his  private 
gain,  and  wiliioiit  collusion  with,  or  the 
l<iiowledgc  of,  the  per.son  dealing  with  him, 
fiiils  to  impart  his  knowledge  to  the  corpo- 
ration is  immaterial  in  an  action  against 
lilt;  corporation.  Carroll  w.  People's  R.  Co., 
14  i]/t>.  .,-///.  490.— FoM.»jWEU  IN  Meaj^her 
V.   People's  &  T.  G.   R.  Co.,   14  Mo.  App. 

499- 

A  decree  foreclosing  a  lien  of  the  state  on 
a  roa<l  reserved  the  right  of  the  company 
to  collect  certain  claims  against  the  secre- 
tary for  a  defalcation  while  acting  as  finan- 
cial agent  of  the  contractor  constructing 
the  road  and  to  apply  the  proceeds  to  the 
debts  of  the  company.  Held,  that  a  bill  in 
the  name  of  the  company  against  the 
secretary  will  lie,  and  the  company  will  be 
deemed  a  trustee  for  the  benefit  of  the  cred- 
itors of  the  company.  Cincinnati,  C.  G.  &•» 
C.  R.  Co.  V.  Murrell,  11  Heisk.  (Tenn.)  715. 

Under  an  agreement  between  a  railroad 
company  and  its  contractors,  the  company 
was  to  retain  a  certain  per  cent,  of  the  cost 
of  the  work  until  completion.  During  the 
progress  of  the  work  the  contractors  ap- 
plied to  plaintifls  fora  loan  on  the  security  of 
the  money  so  retained.  Plaintifls  addressed 
an  inquiry  to  the  railroad  company  as  to  the 
amount  of  money  retained,  and  was  an- 
swered by  its  secretary  that  there  was  a  cer- 
tain amount  retained  which  wouUl  be  pay- 
able on  completion  of  the  work,  whereas 
in  fact  the  amount  stated  had  not  been  re- 
tained. The  loan  was  made  on  the  faith  of 
the  statement  made  by  the  secretary,  but 
there  was  no  evidence  that  he  had  authority 
to  make  such  statement.  Held,  in  an  action 
against  the  railroad  company,  that  it  was 
not  within  the  scope  of  the  secretary's  au- 
thority to  make  such  statement,  and  that 
the  company  was  not  estopped  from  denying 
that  the  amount  of  money  represented  by 
him  was  due  the  contractors,  or  those 
claiming  under  them.  Harnett  v.  South 
London  Tramways  Co.,  L.  R.  iS  Q. /}.  D.  81 5. 

A  bank  having  executions  against  a  rail- 
way company  in  the  hands  of  the  sheriff,  its 
secretary  signed  a  letter  agreeing  that  the 
bank,  out  of  moneys  of  the  company  coming 
to  their  hands  from  certain  garnishee  pro- 
ceedings, might  retain,  after  paying  the  gar- 
nishee's oebis,  "  the  surplus,  if  any,  to  apply 


I 


s 


s 


910 


OFFICERS,  15. 


^ 


«: 


m, 


m 


to  your  executions  against  us."  This  letter 
was  signed  without  authority  from  the 
board  of  directors,  although  two  members 
were  aware  of  it,  and  one  of  them,  tiie  vice- 
president  of  the  company,  authorized  it. 
Hflii,  that  this  was  not  such  an  act  as  the 
officers  of  the  company  were  authorized 
to  perform,  and  that  although  the  bank 
granted  the  ttme  asked  for  it  could  not  en- 
force payment  of  the  amounts  stipulated  for. 
Hamilton  &•  P.  D.  R.  Co.  v.  Gore  Bank,  20 
Grant 's  Ch.  (U.  C.)  190. 

(2)  Salary  of. — The  value  of  the  services 
of  a  clerk  of  a  corporation  is  not  to  be  de- 
termined by  the  value  of  the  mere  clerical 
services  he  renders  in  keeping  so  many  pages 
or  folios.  Where  the  compensation  of  such 
officer  is  not  fixed  by  law  or  by  contract,  he 
may  recover  such  sum  as  he  may  prove 
that  his  services  are  worth.  Missouri  River 
R.  Co.  v.  Ricjiards,  8  Kan.  loi, 

A  person  who  has  personal  knowledge  of 
the  services  rendered  by  such  clerk,  and  has 
knowledge  of  the  value  of  the  services  and 
what  is  usually  paid  for  such  services,  is 
competent  to  testify  as  to  what  they  are 
worth,  though  he  may  not  know  the  estab- 
lished price  of  such  services  in  the  vicinity 
where  rendered.  Missouri  River  R.  Co.  v. 
Richards,  8  Kan.  loi. 

When  the  by-laws  of  a  corporation  pro- 
vide that  the  officers  shall  receive  such  com- 
pensation as  the  board  of  directors  shall  fix, 
and  the  board  has  not  fixed  any  compensa- 
tion, a  clerk  or  secretary  who  has  rendered 
services  is  entitled  to  recover  what  they  are 
worth,  unless  there  was  an  understanding 
that  they  were  to  be  rendered  without  com- 
pensation. Missouri  River  R.  Co,  v.  Ric/i- 
urds,  8  Kan.  loi. 

Plaintif!  was  elected  secretary  and  treas- 
urer of  a  company  at  a  salary  fixed  by  a 
by-law,  and  discharged  the  duties  of  that 
office  until  his  successor  was  chosen.  Held, 
in  an  action  to  recover  his  salary,  that  plain- 
tiff is  not  required  to  show  that  such  ser- 
vices as  appertained  to  the  office  were  per- 
formed, where  the  answer  of  defendant 
admits  that  the  duties  were  discharged  and 
offers  no  evidence  to  support  any  objection 
to  the  manner  and  kind  of  service  rendered. 
Abbott  v.  Georgia  &-  N.  C.  R.  Co.,  90  A^.  Car. 
462. 

The  by-law  constitutes  the  contract  be- 
tween the  parties,  and  under  a  stipulation 
contained  therein  the  compensation,  though 
measured  by  the  day,  is  continuous  during 


the  term  of  service,  and  not  dependent  upon 
each  day's  work.  AbbUt  v.  Georgia  &*  N. 
C.  R.  Co.,  90  iV.  Car.  462. 

To  enJlle  a  person  appointed  secretary  of 
a  corporation,  who  is  not  a  director  or 
stockholder,  to  charge  a  reasonable  com- 
pensation for  his  services,  it  is  not  essential 
that  a  rate  of  compensation  should  be  agreed 
upon,  or  that  there  should  be  an  express 
agreement  to  pay  a  compensation.  Smith 
V.  Long  Island  R.  Co.,  102  N.  Y.  190,  6  j\. 
E.  Rep.  yyj,  i  N.  Y.  S.  R.  403 ;  reversing  in 
part  32  Hun  38. 

It  is  a  necessary  conclusion  from  the  fact 
of  the  election  by  the  board  of  directors  of 
the  corporation,  the  acceptance  of  the  office 
and  the  discharge  of  its  duties,  that  the  ser- 
vices were  rendered  at  the  'equest  of  the 
corporation,  and  these  circumstances /r//;;<i 
facie  raise  an  implied  obligation  on  the  part 
of  the  corporation  to  make  compensation  ; 
and  to  rebut  that  presumption  there  should 
be  clear  evidence  that  the  services  were  to 
be  gratuitous.  Smith  v.  Long  Island  R.  Co., 
102  ,^V.  Y.  190,  6  A'.  E.  Rep.  397,  i  A^.  Y.  S. 
R.  403 ;  reversing  in  part  32  Hun  38. 

Under  8  &  9  Vict.  c.  16,  §  91,  it  is  no  an- 
swer to  an  action  by  the  secretary  of  a  com- 
pany for  his  salary  that  no  determination 
as  to  such  salary  had  ever  been  exercised  at 
any  genera'  i-neeting  of  the  company.  Bill 
V.  Parent 'c  ^'alley  R.  Co.,  i  H.  &•  N.  305,  2 
Jiir.  N.  S.  595.  26  L.f.  Ex.  81. 

15.  Treasurer. — (i)  In  general. — 
Money  of  a  company  deposited  by  its  treas- 
urer as  such  is  the  money  of  the  corporation 
in  the  hands  of  the  banker.  Penrose  v.  Erie 
Canal  Co.,  3  Phila.  {Pa.)  198. 

Where  the  treasurer  of  a  railroad  com- 
pany fraudulently  issues  stock  to  a  party 
fur  whom  he  acts  as  agent  in  a  pretended 
purchase,  knowledge  of  the  fraud  cannot  be 
imputed  to  the  company,  allien  v.  South 
Boston  R.  Co.,  150  Mass.  200,  5  L.  R.  A.  716, 
22  A'.  E.  Rep.  917.— Distinguished  in 
Fariington  v.  South  Boston  R.  Co.,  150 
Mass.  406. 

A  payment  by  the  treasurer  of  a  corpora- 
tion of  a  foreign  state,  dependent  for  its  va- 
lidity upon  the  laws  of  that  state,  will  not 
be  held  a  violation  of  his  duty  and  the 
amount  thereof  set  off  against  his  claim  for 
salary,  where  the  laws  are  not  put  in  evi- 
dence, in  an  action  in  Massachusetts  for 
such  salary.  Sears  v.  Kings  County  El.  R. 
Co.,  156  Mass.  440,  31  A'.  E.  Rep.  490. 

Plaintif!  was  elected  treasurer  of  defenu- 


OFFICERS,  16. 


911 


ant,  which  was  incorporated  as  an  associa- 
tion for  tiie  purpose  of  leasing  and  operating 
'tiiroads;  but  after  Ins  election  the  leased 
roads  consolidated  with  others  and  a  new 
corporation  was  formed,  and  plaintifT  was 
made  assistant  treasurer  at  an  increased 
salary,  after  which  the  labor  required  as 
treasurer  of  defendant  was  but  small.  Held, 
that  he  was,  nevertheless,  entitled  to  the 
stipulated  salary  as  treasurer.  Rodney  v. 
Southern  R.  Assoc,  14  Daly  70,  3  N.  Y.  S. 
R.  564. 

The  treasurer  of  a  corporation  received 
moneys  belonging  to  the  company,  but  by 
entries  on  the  books  made  it  appear  that 
his  liabilityto  the  company  was  extinguished 
and  that  it  was  indebted  to  him.  Held,  un- 
der such  circumstances,  that  it  was  not  nec- 
essary to  make  a  demand  on  him  for  the 
money  before  bringing  suit.  East  N.  Y,  &* 
/.  R.Co.  V.  Elmore,  5  Hun  (N.  Y.)  214. 

(2)  Power  to  make  contracts.  —  The  by- 
laws of  a  corporation  did  not  authorize  its 
treasurer  to  borrow  money  and  to  sign  notes 
for  the  corporation  by  himself  as  treasurer, 
but  for  a  number  of  years  he  had  been  al- 
lowed to  do  so,  some  of  the  obligations 
being  indorsed  by  the  directors  and  passed 
into  circulation.  Held,  that  so  far  as  the 
public  was  concerned  the  directors  had 
made  the  treasurer  the  fiscal  agent  of  the 
company  with  authority  to  make  and  in- 
dorse notes.  Page  v.  Fall  River,  IV.  &'  P. 
R.  Co.,  31  Fed.  Rep.  257. 

The  purchase  of  bonds  and  the  paying  for 
them  were  within  the  ordinary  business  of 
defendant.  Its  treasurer  was  authorized  to 
make  such  purchases  for  defendant  and  to 
make  payment.  Held,  that  he  was  also  au- 
thorized to  determine  the  amount  unpaid, 
even  to  the  extent  of  compromising  a  dis- 
pute in  regard  to  it.  Gafford  v.  American 
M.  (S-  /.  Co.,  77  Iowa  736,  42  A^.  W.  Rep. 
550. 

In  an  action  on  drafts  accepted  on  behalf 
of  defendant  by  its  treasurer  where  there 
was  prima  facie  evidence  that  defendant's 
records  gave  the  treasurer  authority  to  ac- 
cept the  drafts,  which  record  was  not  dis- 
puted— held,  that  the  testimony  of  a  witness 
for  defendant  that  he  found  nothing  of 
record  in  the  books  of  defendant  to  show 
that  the  treasurer  had  such  authority  was 
properly  stricken  out.  Gafford  v.  Ameri- 
can M.  &>  I.  Co.,  77  Iowa  736,  42  N.  IV.  Rep. 

550- 
Wliatever  may  be  true  of  trading  corpo- 


rations, there  is  nothing  in  the  nature  of 
•  the  business  of  a  horse-railroad  company, 
or  of  the  duties  of  the  treasurer  thereof, 
which  implies  that  he,  by  virtue  of  his 
office,  is  authorized  to  borrow  money  for 
the  company  and  give  its  notes  therefor. 
Craft  V.  South  Boston  R.  Co.,  1 50  Mass.  207, 
28  Am.  Sf  Eng.  Corp.  Cas.  579,  22  N.  E. 
Rep.  920,  5  L.  R.  A.  641, 

The  treasurer  of  such  company  borrowed 
money  from  plaintifT  and  gave  a  note  in  the 
name  of  the  companv  signed  by  him  alone 
as  treasurer.  As  a  u  "ter  of  fact  the  treas- 
urer could  not  sign  notes  of  the  company 
except  as  the  directors  might  require,  when 
they  should  be  countersigned  by  the  presi- 
dent ;  but  plaintifT  was  ignorant  of  this  and 
acted  in  good  faith.  At  the  time  the  treas- 
urer was  a  defaulter,  and  used  the  money  to 
pay  debts  of  the  company  to  cover  his  own 
default.  Held,  that  plaintifT  could  not  re- 
cover from  the  company,  either  upon  the 
note,  or  for  money  had  and  received.  Craft 
v.  South  Boston  R.  Co.,  150  Mass.  207,  28 
Am.  &*  Eng.  Corp.  Cas.  579,  22  A'^.  E.  Rep. 
920,  5  L.  R.  A.  641. 

An  officer  of  a  corporation,  such  as  a 
treasurer  or  assistant  treasurer,  who  does 
not  possess  the  power  directly  to  create  a 
debt  against  his  corporation  cannot  do  so 
indirectly,  as  by  sending  out  statements  of 
accqunts  showing  a  balance  due  the  per- 
sons to  whom  they  are  sent.  Hat^ey  v. 
West-Side  El.  R.  Co.,  13  Hun  {N.  Y.)  392. 

One  who  is  treasurer,  secretary,  and  trans- 
fer agent  of  a  street-railway  company,  and 
is  authorized  to  sign,  countersign,  and  seal 
certificates  of  stock,  may  bind  the  company 
by  issuing  a  spurious  but  apparently  gen- 
uine certificate  of  stock,  he  acting  at  the 
time  within  the  apparent  scope  of  his  au- 
thority. Hellman  v.  Forty-second  St.  &*  G. 
S.  F.  R.  Co.,  74  Hun  529,  26  A^.  Y.  Supp. 
S53.  57  A',  y.  S.  R.  223. 

10. his  bond    and   liability  of 

8ureticM.  —  A  condition  of  a  treasurer's 
bond  that  he  "  shall  faithfully  discharge  the 
duties  of  the  office, and  well  behave  therein," 
only  binds  him  to  an  honest,  diligent,  and 
competently  skilful  effort  to  keep  the  money. 
Hence,  where  he  deposits  the  money  of  the 
company  to  his  credit  as  such  in  a  bankirg 
house  which  was  at  the  time  in  good  stand- 
ing and  credit,  and  considered  by  the  com- 
munity a  safe  place  of  deposit,  he  and  his 
suretie*  are  not  reponsihie  for  its  loss  by 
thv  sudden  and  unexpected  failure  of  the 


I 


4  -   X 


s 


s 


912 


OFFICERS,  17. 


Si 

41; 


It 


(^  ft 


» 

f 


bank.    Atlantic  &*  N.  C.  li.  Co.  v.  CowUs, 
69  iV.  Car.  59. 

Defendant  was  described  in  a  bond  as 
treasurer  of  a  railroad  company,  and  signed 
it  with  the  word  "  treasurer  "  aflixed  to  his 
name.  The  court  below  found  that  there 
was  no  evidence  that  he  had  any  power  to 
bind  the  company,  and  then  added,  "  I  find 
that  he  had  no  such  power."  Held,  that  it 
was  not  to  be  inferred  that  the  court  found 
the  want  of  power  merely  from  the  absence  of 
evidence  that  he  had  it,  as  there  might  have 
been  no  evidence  to  show  affirmatively  such 
power,  while  at  the  same  time  there  might 
have  been  much  evidence  to  negative  its 
existence.  .Etna  Nat.  Bank  v.  Hollister,  55 
Conn.  1 88,  \o  Atl.  Rep.  550. 

No  formal  vote  of  a  corporation  accepting 
its  treasurer's  bond  needs  to  be  shown  in 
order  to  entitle  it  to  maintain  an  action 
upon  it.  Lexington  «S-  W.  C.  R.  Co.  v.  El- 
well,  8  Allen  (AJFass.)  371. 

An  indorsement  by  the  treasurer  of  a  cor- 
poration, upon  notes  signed  by  himself,  and 
running  to  the  corporation,  is  sufficient 
evidence  to  render  the  sureties  upon  his 
bond  liable  for  the  amount  indorsed,  as  for 
moneys  received  by  him  in  his  official  capac- 
ity, without  any  further  evidence  of  actual 
payments  of  money.  Lexington  &-  IV.  C. 
R.  Co.  V.  Elwell,  8  Allen  (A/ass.)  371. 

If  the  treasurer  of  a  corporation  appro- 
priates to  his  own  use  money  received  from 
a  certain  source  during  the  time  covered  by 
his  official  bond,  and  other  sums  received 
from  the  same  source  after  the  bond  has  ex- 
pired, and  he  afterwards  enters  upon  the 
books  a  sum  as  received  from  that  source, 
and  such  sum  is  not  in  fact  received  at  the 
date  of  the  entry,  and  there  is  nothing  to 
show  when  the  same,  or  the  items  of  which 
it  was  composed,  should  have  been  entered, 
It  is  proper,  in  an  action  upon  the  bond,  to 
apply  one  half  of  it  to  the  time  covered  by 
the  bond.  Lexington  &*  IV.  C.  R.  Co.  v. 
Ehvell,  8  Allen  (JAmj.)  371. 

A  corporation  is  not  estopped  to  maintain 
an  action  upon  its  treasurer's  bond  by  hav- 
ing accepted  a  report  of  an  auditing  com- 
mittee who  had  approved  his  accounts,  nor 
by  making  a  report  founded  thereon  to  the 
legislature.  Lexington  &*  IV.  C.  R.  Co.  v. 
Ehvell,  8  Allen  (Afasx.)  37 1 . 

The  sureties  on  the  bond  of  a  treasurer, 
the  condition  of  which  provides  for  his  faith- 
ful discharge  of  the  duties  of  the  office 
"during  his  continuance  in  office,  during 

r 


the  present  year,  and  for  such  further 
periods  as  he  may  from  time  to  time  be 
elected  to  said  office,"  are  not  liable  for  de- 
faults which  occur  after  an  omission  to  re- 
elect him  at  a  regular  meeting,  and  after 
such  further  time  as  may  be  reasonably  suf- 
ficient for  the  election  and  qualification  of 
his  successor,  although  he  continues  to  act 
as  treasurer,  and  is  re  elected  at  the  next 
regular  meeting  thereafter ;  but  they  are  not 
discharged  from  their  liability  by  a  vote  of 
the  corporation  postponing  for  five  weeks 
the  time  of  the  regular  meeting  for  the  elec- 
tion of  officers,  and  the  consequent  post- 
ponement of  an  election  for  that  period,  nor 
by  the  corporation's  assuming  the  entire 
management  of  the  railroad  after  having 
leased  it  to  another  corporation.  Lexington 
&^  IV.  C.  R.  Co.  v.  Elwell,  8  Allen  (Mass.) 

371. 

IT.  Vice-prcHldeiit.  —  As  a  general 
rule,  in  the  absence  of  the  president,  or 
where  a  vacancy  occurs  in  the  office,  the 
vice-president  may  act  in  his  stead  and  per> 
form  the  duties  wl.lch  devolved  upon  the 
president.  Where  a  charter  did  not  men- 
tion a  vice-president  as  an  officer  of  the 
company,  but,  after  providing  for  certain 
officers,  it  authorized  the  company  to  create 
other  officers,  and  the  company,  in  its  by- 
laws, declared  there  should  be  a  vice-presi- 
dent and  prescribed  hisduties— ^//</,  that  he 
might  perform  the  duties  imposed  upon  the 
president  as  though  his  office  had  been 
created  by  the  charter.  Smith  v.  Smith,  62 
///.  493- 

A  board  of  directors  by  a  resolution 
directed  the  president  of  the  company  to 
sell  a  tract  of  land  and  to  execute  the  neces- 
sary deed  therefor  under  the  corporate  seal, 
but  the  president  re 'used  to  act.  The  vice- 
president  assumed  to  discharge  the  duties 
of  president,  and,  in  accordance  with  the 
resolution,  conveyed  the  land,  signing  as 
vice-president  and  acting  president  of  the 
company,  but  the  deed  was  not  counter- 
signed by  the  secretary,  as  required  in  the 
by-laws  of  the  company.  Heltl,  that  the 
deed  was  well  executed  and  sufficient  to 
convey  the  title  of  the  company.  Smith  v. 
Smith,  62  ///.  493. 

A  jury  will  be  warranted  in  finding  that  a 
vice-president  had  authority  toemployplain- 
tifT.for  his  company  on  proof  showing  that 
he  was  employed  through  the  vice-president 
to  operate  certain  electric  lights  for  the  pur 
pose  of  examining  baggage  at  night  and  for 


OFFICIAL   BONDS— OPINIONS. 


913 


ch  further 
to  time  be 
ible  for  de- 
sion  to  re- 
,  and  after 
onably  suf- 
ification  of 
lues  to  act 
it  the  next 
liey  are  not 
y  a  vote  of 

five  weeks 
jr  the  elec- 
|uent  post- 
period,  nor 
the  entire 
ter    having 

Lexington 
^len  (Mass.) 

a  general 
resident,  or 

office,  the 
ad  and  per> 
1  upon  the 
1  not  men- 
ficer  of  tiie 
for  certain 
ny  to  create 
',  in  its  by- 
i  vice-presi- 
held,  that  he 
;d  upon  the 
:  had  been 
I.  Sinit/i,  62 

resolution 
company  to 
e  the  neces- 
•porate  seal. 

The  vice- 
:  the  duties 
ce  with  the 
,  signing  as 
dent  of  tiie 
ot  coiintcr- 
lired  111  tlie 
'<i,  that  tiie 
sufficient  to 
r.     Smtt/t  V. 

tiding  that  a 
mploy  plain- 
iiowing  that 
ce-president 
for  the  pur 
light  and  for 


other  purposes,  the  fact  that  lie  engaged  in 
the  services  under  the  contract  being  notori- 
ous, and  that  bills  sent  in  by  him  for  such 
services  had  been  paid  by  tlie  company  after 
being  certified  by  tlie  vice-president.  Shim- 
melw.  Erie  A\  Co.,  5  Da/y  (JV.  V.)  396. 


OFFICIAL  BONDS. 

Generally,  see  Officers,  O. 
Of  treasurer,  see  Officers,  Id. 


ONTARIO. 

Operation  of  statute  of,  giving  right  of  action 
for  causing  death,  see  Death  by  Wrong- 
ful Act,  30. 

Statutes  of,  relative  to  damages  for  injuries 
to  employes,  see  Emtloyes,  Injurie;;  to, 
734. 

—  drains,  see  Drains,  4. 

Statutory  regulation  of  grade  crossings  in, 
see  Crossing  OF  Streets  a.nu  Highways, 
05. 


OHIO. 


Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 278. 

Constitutionality  of  statutes  of,  as  to  condem- 
nation of  land,  see  Eminent  Domain,  41. 

municipal  aid  for  railways, 

see  Municipal  and  Local  Aid,  46. 

removal  of  causes,  see  Re- 
moval OF  Causes,  J{. 

tax  laws  of,  see  Taxation,  43. 

Constitutional  provisions  in,  relative  to  con- 
demnation of  land,  see  Eminent  Domain, 
18. 

Deductions  for  benefits  under  condemnation 
laws  of,  see  Eminent  Domain,  740. 

Injuries  to  animals  running  at  large  in,  see 
Animals,  Injuries  to,  254,  274. 

Local  assessment  upon  steam  railways  in 
for  repairs,  paving,  etc.,  see  Streets  and 
Highways.  354. 

Mechanics'  lien  law  of,  see  Liens,  \  3. 

PlaintifTs  pleadings  need  not  negative  con- 
tributory negligence  in,  see  Contributory 
Negligence,  04. 

Review  of  town  bonding  proceedings  by 
mandamus  in,  see  Municipal  and  Local 
All),  451. 

Rule  as  to  imputed  negligence  in,  see  Im- 
puted Negligence,  20. 

Sttitutes  of,  relative  to  distribution  of  dam- 
ages for  causing  death,  see  Death  bv 
Wrongful  Act,  08. 

Statutory  duty  to  fence  in,  see  Fences,  33. 

Taking  land  for  streets  and  laying  out  roads 
in,  see  Streets  and  Highways,  20. 

Taxation  in  aid  of  railways  in,  see  Municipal 
AND  Local  Aid,  423. 


OIL  CAE8. 
Patents  for,  see  Patents  for  Invemtions,  44. 


OPEN  AND  CLOSE. 

Discretion  of  judge  as  to  right  to,  see  Emi- 
nent Domain,  572. 

Right  to,  as  respects  argument  to  jury,  see 
Trial,  04. 

—  —  on  hearing  before  commissioners  to 
assess  damages,  see  Eminent  Domain, 
512. 


OPINION  EVIDENCE. 

Improper,  when  not  ground  for  reversal,  see 
Appeal  and  Error,  03. 

In  actions  against  carriers,  see  Carriage  of 
Merchandise,  740. 

for  failure  to  build  or  repair  cattle- 
guards,  see  CATTLE-GUARDi,  20. 

injuries  caused  by  fire,  see  Fires, 

214. 

to  children,  see  Children,  Inju- 
ries to,  170. 

employes,  see  Employes,  In- 
juries to,  585,  580. 

—  elevated    railway    cases,   see    Elevated 

Railways,  115-120. 

—  proceedings  for  the  intersection  of  rail- 

ways, see  Crossing  of  Railroads,  35. 

—  stock-killing  cases,  see  Animals,  Injuries 

TO.  413-421. 


OKLAHOMA. 

Homesteads  in  public  lands  in,  see  Public 
Lands,  O. 
6  D.  R.  D.— 58 


OPINIONS. 
As  to  amount  of  damages,  see  Eminent  Do« 

MAIN,  030. 

incompetency  of   fellow-servants,  see 

Fellow-servants,  481. 

sufficiency  offences,  see  FeT<ces,  80. 

—  —  value  of  land  taken,  see  Eminent  Do- 

MAIN,  033-030. 
on  question  of  damages,  see  Fires, 

357. 
Certificate  of  division  of,  see  Federal  Courts, 

22. 
Conjectural  and  speculative,  see  Elevated 

Railways,  123. 
Expressions  of,  in  instructions,  see  Death  bt 


I 


! 


•81 

I 


914 


OPTIONS— ORDINANCES. 


Wrongful  Act,  328  ;  Trespassers,  In- 
juries to,  12.*$;  Trial.  121,  140. 

Mete  expressions  of,  not  fraud,  sec  Slhscrip- 
TioNs  TO  Stock,  145. 

Of  experts  based  on  testimony  of  other  wit- 
nesses, see  Witnesses,  154, 193,  194. 

concerning  admitted  facts,  see  Wit- 
nesses, 153. 

generally,  see  Witnesses,   131-198. 

in  stock- killing  cases,  see  Animals,  In- 
juries to,  418-421. 

—  jurors,  challenge  for,  see  Trial,  32. 

—  non-experts,  see  Witnesses,  56. 

—  real  estate  experts,  see  Elevated  Rail- 

ways, 119. 

—  witnesses  generally,  see  Witnesses,  94- 

130. 


OPTIONS. 

Illegality  of  contracts  for,  see  Contracts,  55. 

To  declare  forfeiture  or  sue  on  subscription, 
see  Subscriptions  to  Stock,  181. 

—  go  over  or  under  tracks  with  street  cross- 
ing, see  Crossing  op  Streets  and  High- 
ways, 04. 


ORAL  AOREEMENTS. 

Contemporaneous  with  written  evidence,  ad- 
missibility of,  see  Evidence,  179. 

For  right  of  way,  see  Eminent  Domain,  224. 

Merger  of,  into  written  contracts,  see  Car- 
riage of  Merchandise,  400. 

Of  corporations,  validity  of,  see  Contracts,  O. 

Parol  evidence  of  subsequent,  see  Evidence, 
181. 


ORDERS. 

Assumption  of  extra  risk  in  obeying,  see  Em- 
ployes, Injuries  to,  270-284. 

Contributory  negligence  in  obeying,  a  ques- 
tion for  the  jury,  see  Employes,  Injuries 
TO,  733,  7JI4. 

Directing  deposit  of  land  damages,  validity 
of,  see  Eminent  Domain,  391. 

In  condemnation  proceedings,  what  are  final 
and  appealable,  see  Eminent  Domain, 
884,  885. 

when  appealable  to  court  of  last 

resort,  see  Eminent  Domain,  889,  890. 

Instructions  touching  employes'  obedience  or 
disobedience  of,  see  Employes,  Injuries 
TO.  «54. 

Liability  for  tost  of  agent  acting  contrary  to, 
see  Ac.ENCY,  74-77. 

Negligence  in  issuing  dangerous,  a  question 
for  jury,  see  Employes,  Injuries  to,  701. 

Obedience  or  disobedience  of,  when  consti- 
tutes contributory  negligence,  see  Em- 
FLOTis,  Injuries  to,  423-450. 


Of  appointment  of  commissioners  to  assess 
land  damages,  see  Eminent  Domain,  501. 
receiver,  see  Receivers,  30,  31. 

—  commissioners,   remedy  to   enforce,  see 
Railway  Commissioners,  29-37. 

—  confirmation  of  report  of  commissioners, 

see  Eminent  Domain,  798. 

—  foreman,  contributory  negligence  in  dis- 

obeying, see  Employes,  Injuries  to,  390. 

—  Interstate    Commerce    Commission,   en- 

forcement of,  sec  Interstate  Commerce, 
149. 

—  railway  commissions,  enforcement  of,  see 

Charges,  124,  125. 

—  vice-principal,  liability  of  company  for, 

sec  Fellow-servants,  90,  91. 
To  employes,  see  Carriage  of  Passengers, 
71. 

—  pay  over  deposit  of  land  damages  to  land- 

owner, see  Eminent  Domain,  390. 
When  appealable,  see  Appeal  and  Error,  9- 
13. 


ORDINANCES. 

Admissibility  of  proof  of  violation  of,  by 

company,  see  Fires,  215. 
As  to  gates  at  crossings,  violation  of,  see 

Crossings,  Injuries,  etc.,  at,  50. 
manner  of  driving  teams  over  cross- 
ings, see  Crossings,   Injuries,   etc.,   at, 

222. 
rate  of  speed,  construction  and  validity 

of,  see  Streets  and    Highways,   321- 

329. 
right  of  way  through  streets,  validity 

and  effect  of,  see  Streets  and  Highways, 

82-80. 
Authorizing    construction    of  bridges,    see 

Bridges,  etc.,  03. 
Fixing  compensation  for  joint  use  of  tracks, 

see  SiREET  Railways,  254. 
Forbidding   signals,  duty   of    company   in 

cases  of,  see  Crossings,   Injuries,  etc., 

AT,    114. 

Granting  leave  to  lay  steam  railway  tracks, 
see  Streets  and  Highways,  144. 

—  use  of  street,  revocation  of,  see  Streets 
and  Highways,  102-105. 

How  pleaded,  see  Animals,  Injuries  to,  302. 

Injuries  occasioned  by  violation  of,  see 
Streets  AND  Highways,  370-379. 

Judicial  notice  of,  see  Evidence,  109. 

Negligence  in  violation  of,  see  Street  Rail- 
ways, 300. 

Obstruction  of  highway  by  cars  in  violation 
of,  see  Streets  and  Highways,  4iO, 
411. 

Power  to  pass,  alter,  and  amend,  see  Struts 
AND  Highways,  301. 


to  assess 

AIN,  601* 

O,  31. 

iforce,   see 

17. 

lissioners, 

ce  in  dis- 

5T0,a«0. 

ssion,  en- 

::OMMERCE, 

ent  of,  see 
ipany  for, 

ASSKNGERS, 

es  to  land- 
too. 
Error,  O- 


ion  of,  by 

ion  of,  see 

50. 

jver  cross- 

i,    ETC.,    AT, 

ind  validity 
AYS,    331- 

:ts,  validity 
Highways, 

ridges,    see 

e  of  tracks, 

ompany   in 

UKIES,    ETC., 

way  tracks, 
144. 

see  Streets 

ES  TO,  »oa. 

ion    of,    see 

l»-37». 

lOO. 

I'REET   RAIL> 

in  violation 

iVAYS,    410» 

,  ice  Strbbts 


OREGON— OVERISSUE. 


915 


Proof  of,  see  Streets  and  Highways,  300. 

Ratification  of,  void,  see  Strket  Railways, 
55. 

Regarding  stationing  of  flagmen  at  cross- 
ings, see  Crossings,  Injuries,  etc.,  at, 
74. 

Regulating  speed,  liability  for  violation  of, 
see  Crqssings,  Injuries,  etc.,  at,  173; 
Tkksi'assers,  Lnjukies  to,  35. 

—  steam  roads  in  streets,  see  Streets  and 

Highways,  .')01-340. 

—  street    railways,  see    Street    Railways, 

360-277. 
Regulation  of  cable  railways  by,  see  Cable 

Railways,  O. 

fares  by,  see  Tickets  and  Fares,  113. 

Requiring  bell  to  be  rung  in  cities,  see  Streets 

AND  Highways,  3312. 

—  change  of  grade  of  street,  see   Streets 

AND  Highways,  150. 

—  payment    of   damages    for    constructing 

steam    railway  in   streets,   see  Streets 
AND  Highways,  !251. 

—  use  of  bell  or  whistle  near  crossings,  see 

Crossings,  Injuries,  etc.,  at,  1.57. 
Validity  and  effect,  see  Municital  Corpora- 

IIONS,    10-lt>. 

When  admissible  in  evidence,  see  Children, 
Injuries  to,  lOO;  Death  by  Wrongful 
Act,  243 ;  Evidence,  234 ;  Streets 
and  Highways,  300. 

—  create  estoppel,  see  Estoppel,  10. 


OREOON. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 270. 

Deductions  for  benefits  under  condemnation 
laws  of,  see  Eminem  Domain,  750. 

Doctrine  of  comparative  negligence,  how  far 
applied  in,  see  Comtarative  Negligence, 

2:t. 

Homesteads  in  public  lands  in,  see  Public 
Lands,  lO. 

Injuries  to  animals  running  at  large  in,  see 
Animals,  Lnjukies  to,  255. 

PlaintifTs  pleadings  need  not  negative  con- 
tributory negligence  in,  see  Contribu- 
tory Negligence,  04. 

Statutei  of,  relative  to  distribution  of  dam- 
ages for  causing  death,  see  Death  by 
Wrongful  Act,  07. 

Taking  land  for  streets  and  laying  out  roads 
in,  see  Streets  and  Highways,  27. 

Taxation  of  land  grants  in,  see  Taxation, 
123. 


OSOANIZATIOH. 

Assessment  on  stock  prior  to,  invalid,  see 
Suhscripi'ions  to  Stock,  47. 


Averment  us  to,  in  action  on  stock  subscrip- 
tion, sec  Si'iiscRU'TioNs  to  Stock,  88. 

Burden  of  proof  to  show,  see  Eminent  Do- 
main, 305. 

Objections  to,  as  a  defense  to  actions  on  sub- 
scriptions to  stock,  see  Subscriptions  to 
Stock,  105. 

Of  company,  as  a  condition  precedent  to  re- 
ceiving aid,  see  Municipal  and  Local 
Aid,  213. 

Proof  of,  see  Public  Lands,  43. 

Subscription  before,  when  deemed  absolute, 
see  Subscriptions  to  Stock,  O,  222. 

Validity  of  conditional  subscriptions  made 
prior  or  subsequent  to,  see  Subscriptions 
to  Stock,  200,201. 

contracts  made  prior  to,  see  Contracts, 

2. 

See  also  Incorporation,  etc.,  2. 


OVERCHARGES. 

Action  for,  when  barred  by  lapse  of  time,  see 
Limitations  of  Actions,  37. 

Actions  to  recover,  see  Railway  Commission- 
ers, 30. 

Costs  in  actions  to  recover  for,  see  Costs,  1 1. 

In  frei'^hts  and  fares,  see  Penalties,  O. 

—  passenger  fares,  see  Tickeis  and  Fares, 
130-135. 

Penalty  for,  see  Street  Railways,  307. 

Under  Railway  and  Canal  Traffic  Act,  see 
Carriage  of  Merchandise,  531. 
See  also  Charges;  Interstate  Commerce. 


OVERFLOW 

Of  water,  as  an  element  of  damages  to  abut- 
ting owner,  see  Streets  and  Highways, 
28U. 

See  also  Flooding  Lands  ;  Waters  and 
Watercourses. 


OVERHEAD  BRIDGE. 

Alleging  defective  condition  of,  see  EmplovAs, 
Injuries  to,  522. 

Contributory  negligence  In  going  under,  see 
Employes,  Injuries  to.  305. 

Duty  to  employes  as  to  safety  of,  see  Em- 
ployes, Injuries  to,  57. 

Negligence  as  to  safety  of,  question  for  jury, 
see  Employes,  Injuries  to,  072. 


OVERISSUE. 
Of  corporate  bonds,  see  Bonds,  30. 
—  receive :.-9'  certificates,  remedy  for,  see  Ri- 
cbivkrs,  107. 


s 


I 


916 


OVERLOADING— PAIN. 


3 


1^. 


OVERLOADING. 

Of  cattle  on  cars,  liability  for,  see  Cak^iage 
OF  Live  Stock,  20. 

—  hogs,  causing  suffocation,  see  Carriage  of 

Live  Stock,  48. 

—  street-car,  when  negligence,  see  Street 

Railways,  353. 


OVERPATMENT. 

Recovery  of  excess,  see  Payment,  6. 

To  contractors,  liability  to  company  for,  see 

CONSTRUCriON  OF  RAILWAYS,  48. 


OVERVALTTATION 

Of  property  to  be  taxed,  as  ground  for  injunc* 
tion,  see  Taxation,  350. 


OWNER. 

Necessity  of  a  direc:  contract  with,  to  main* 
tain  mechanic's  lien,  see  Liens,  21. 

Notice  to,  of  claim  for  laborer's  lien,  see 
Liens,  50. 

—  —  —   subcontractor's  claim  of  lien,  see 

Liens,  33. 
Of  easement,  when  entitled  to  land  damages, 
see  Eminent  Domain,  430. 

—  goods  carried,  when  may  sue  carrier,   see 

Carriage  ok  Merchandise,  705-717. 
Work  must  be  done  under  contract  with,  to 
give  lien  to  laborer,  see  Liens,  46. 


OWNERSHIP. 

Averment  and  proof  of,  in  actions  against 
carriers  of  goods,  see  Carriage  of  Mer- 
chandise, 726,  740. 


Of  adjoining  premises  by  plaintiff,  allegation 
of,  see  Animals,  Injuuiksto,  340,  623. 

—  animal  killed,  burden  of  proof  to  show, 

see  Animals,  Injuries  to,  I>01. 

presumption  as  to,  see  Animals,  In- 
juries to,  47  1. 

sufficiency  of  evidence  to  show,  see 

Animals,  Injuries  to,  44!>. 

—  fee  by  company,  as  a  dciense  to  action  for 

flooding  land,  see  Floodino  Lands,  58. 
in  street,  see  Streets  and  Highways, 

130-143. 
immaterial  to  abutting  owner's 

rights,  see  Elevated  Railways,  57,  65. 

—  land,  after  removal  of  station,  see  Sta- 

tions, 50. 

taken,  sufficiency  of  description  of,  in 

judgment,  see  Eminem-  Domain,  846. 

—  plaintiff,  evidence  to  disprove,  see  Fikes, 

221. 

—  property  burned,  averment  of,  see  Fires, 

165. 

evidence  to  show,  see  Fires,  201, 

243. 

—  road,  allegation  of,  in  action  for  killing 

stock,  see  Animals,  Injuries  to,  330. 
presumption  as  to,  see  Animals,  Inju- 
ries TO,  470. 

—  —  sufficiency  of  evidence  to  prove,  see 

Animals,    Injuries    to,    446 ;    Fires, 
244. 

—  shares,  duty  to  keep  record  of,  see  Stock, 

80. 


"OWNER'S  RISK." 

Liability  for  goods  shipped  at,  see  Carriage 
OF  Merchandise,  450. 


PACIFIC  RAHROAOS. 

Federal  grants  to,  see  Land  Grants,  63- 
05. 


PACKAGES. 

Carrying,   on  stveet-car,  see  Street  Rail- 
ways, 300,  310. 


PAIN. 


Admissibility  of  evidence  of,  see  Evidence, 

74. 
As  an  element  oi  siimages,  see  Children, 

Lnjuries  to,  185. 
for  injury  to  employe,  see  Em- 

I'LOYfts,  Injuries  to,  757. 
Complaints  of,  when  deemed  part   of    res 

gesta,  see  Evidence,  177. 


Damages  for  future,  see  Damages,  44. 

Declarations  of,  to  Attendant  physician,  see 
Evidence,  20'J. 

Excessive  damages  for,  see  Carriage  of 
Passengers,  640. 

Expressions  indicating  present,  evidence  of, 
see  Evidence,  211. 

—  of,  when  hearsay,  see  Evidence,  166. 

Measure  of  damages  for  infliction  of,  see 
Damages,  70. 

Necessary  averments  respecting,  see  Dam- 
ages, 81* 

Of  deceased  as  an  element  of  damages  in 
action  for  causing  death,  see  Death  by 
Wrongful  Act,  377. 

Proof  of,  on  question  of  damages,  see  Dam- 
ages, 80. 

Sufficiency  of  evidence  to  prove,  see  Car- 
riage UF  Passengers.  570. 


allegation 
40,  02:{. 

to  show, 

L. 

NIMALS,  IN- 

>  show,  see 
9  action  for 

LNUS,  5H. 
HlliHWAYS, 

\g  owner's 
s.  r»7,  05. 

1,  see   Sta- 

ption  of,  in 
N,  840. 

,  see  Fires, 

see  Fires, 

IRES,  201, 

for  killing 
ro,  330. 

IMALS,  InJU- 

prove,  see 
:6  ;    Fires, 

,  see  Stock, 


!e  Carriage 


44. 

ysician,  see 

arriagk  of 

ividence  of, 

e,  100. 
tion  of,  see 

S,  see  Dam- 

damages  in 
t  Death  by 

■,  see  Dam- 

e,  see  Car- 


palace  GARS— PARALLEL  AND  COMPETING  LINES,  1-3.     917 


When  an  element  of  damages,  see  Carriage 
OF  Passengkks,  018. 


PALACE  GARS. 

When  subject  to  taxation,  see  Interstate 
CoMMERCK,  100-104  ;  Taxation,  94. 


PANEL. 
Challenge  to  the,  see  Trial,  30. 


PARALLEL  AND  COMPETING  LINES. 

Discrimination  between,  see  Discrimination, 

22-24. 
Judicial  notice  of,  see  Eviuencf.,  lOO. 
Leases  of,  see  Leases,  etc.   30. 

1.  What  arc— Where  a  new  road  par- 
allels an  existing  one  (or  only  a  short  dis- 
tance, in  determining  whether  the  two  roads 
are  parallel  or  competing  lines,  a  traffic  con- 
tract between  the  existing  road  and  another 
road  whereby  the  existing  road  virtually 
extends  its  line  may  be  taken  into  consid- 
eration. Pennsylvania  K,  Co.  v.  Com.,  (Pa.) 
29  Am.  &*Et^.  A\  Cas.  145,  7  Ail.  Kip.  368. 

The  phrase  "a  parallel  or  competing  line" 
as  used  in  Pennsylvania  constitution  and 
statutes  includes  a  projected  road,  surveyed, 
laid  out,  and  in  process  of  construction, 
which  when  completed  and  in  operation 
would  actually  compete  with  the  other  road. 
Before  completion  it  is  a  parallel  road,  and 
when  completed  it  is  a  competing  road. 
Pennsylvania  K.  Co.  v.  Com.,  (Pa.)  2g  Am. 
&*  Ettg.  R.  Cas.  145,  7  ////.  Rep.  368. 

Mo.  Rev.  St.  §  2569,  prohibiting  railroads 
within  the  state  from  owning,  operating,  or 
managing  parallel  or  competing  roads,  only 
applies  where  both  the  roads  are  within  the 
state,  and  the  competition  must  be  such  as 
to  have  an  appreciable  effect  on  the  rates. 
Kimball  v.  Atchison,  T.  &*  S.  F.  R.  Co.,  46 
I'.ii.  Rep.  888. 

Railway  companies  by  reason  of  their  re- 
lation with  or  control  or  management  of 
otiier  lines  than  their  own  may  becoaie 
within  the  meaning  of  the  law  competing 
lines,  though  the  railways  owned  by  them 
may'not  in  fact  connect.  East  Line  &•  R. 
R.  R.  Co.  V.  State,  40  Am.  &>  Eng.  R.  Cas. 
574,  75  Te.x.  434,  12  S.  IV.  Rep.  690. 

The  question  whether  any  two  railroads 
are  parallel  or  competing  is  a  mixed 
question  of  law  and  fact.  The  Lehigh 
Valley  and  the  Philadelpiiiii  &  Reading  rail- 
roads are  not  so  clearly  parallel  or  compet- 


ing that  the  court,  on  motion  for  a  pre- 
liminary injunction,  can  at  once  reach  a 
conclusion  to  that  effect.  Gummere  v.  Le- 
high Valley  R.  Co.,  i  Pa.  Dist,  585.— DIS- 
TINGUISHING Pennsylvania  R.  Co.  z/.  Com.. 
4  Cent.  Rep.  495. 

2.  Purchase  of  coinpeting  road.— 
Under  Ga.  Constitution  of  1877,  art.  4,  §  2, 
par.  2,  which  forbids  one  corporation  to 
make  any  contract  with  another  tending  to 
defeat  or  lessen  competition  in  their  re- 
spective businesses,  the  purchase  by  defend- 
,?nt  of  a  road  which  ran  parallel  to  its  own 
read  IS  illegal  and  void.  Hamilton  v.  Sa- 
vannah, F.  &*  IV.  R.  Co.,  52  Am.  &^  Eng. 
R.  Cas.  \io,\()Fed.  AV^  412.— Following 
Central  Transp.  Co.  v.  Pullman  Palace  Car 
Co.,  139  U.  S.  24,  II  Sup.  Ct.  Rep.  478. 

The  president  of  defendant  road  entered 
into  a  contract  with  the  president  of  a  com- 
peting road  by  which  the  latter  road  was  to 
be  put  into  the  hands  of  persons  named  by 
defendant's  president,  bonds  therefor  to  be 
given  and  guaranteed  by  defendant.  The 
evidence  showed  that  the  contract  was  for 
the  benefit  of  defendant.  Held,  that  defend- 
ant would  be  considered  as  the  real  party  to 
the  contract,  and  therefore  it  is  in  violation 
of  Pa.  Const,  art.  17,  §  4,  prohibiting  one 
road  from  controlling  another  parallel  or 
competing  road.  Pennsylvania  R.  Co.  v. 
Com.,  (Pa.)  29  Am.  &•  Eng.  R.  Cas.  145,  7 
Atl.  Rep.  368. 

Such  contract  provided  that  the  stock  as- 
signed by  the  competing  company  should 
be  sufficient  "  to  insure  the  control  of  the 
corporation,"  and  that  all  the  directors  and 
officers  of  the  company  should  resign,  to  be 
succeeded  by  other  persons  to  be  named  by 
defendant's  president.  Held,  that  the  con- 
tract would  have  the  effect  of  giving  de- 
fendant "  control  "  of  the  company  within 
the  meaning  of  the  above  provision  of  the 
constitution,  and  the  position-  taken  by  de- 
fendant that  the  control  of  the  majority  of 
the  stock  did  not  give  control  of  the  cor- 
poration could  not  be  sustained.  Pennsyl- 
vania R.  Co.  V.  Com.,  (Pa.)  29  Am.  &*  Eng. 
R.  Cas.  145,  7  .•///.  Rep.  368. 

3.  or  of  stock  therein  — The 

purchase  by  defendant,  an  existing  road,  of  a 
controlling  interest  in  another  road  which 
competes  with  roads  leased  by  defendant 
is  in  violation  of  Pa.  Const,  art.  17,  §  4,  pro- 
hibiting one  road  from  controlling  a  com- 
peting road,  and  will  be  enjoined,  although 
the  assi<:;nmcnt  of  stock  is  fii  the  name  of 


§ 


s 


918 


PARALLEL  AND  COMPETING  LINES,  4. 


■ir 


a  third  person,  where  the  purchase  is  con- 
fessedly for  the  interest  of  defendant.  Penn- 
sylvania A*.  Co.  V.  Com.,  (Pa.)  29  Am.  &• 
Eng.  R.  Cas.  1 54,  7  Atl.  Rep.  374. 

The  right  of  stocitholders  to  sell  their 
stock  cannot  be  exercised  so  as  to  prevent  a 
court  from  granting  an  injunction  to  pre- 
vent one  company  from  securing  a  control- 
ling interest  in  another,  in  violation  of  the 
above  provision  of  the  state  constitution. 
Pennsylvania  R,  Co.  v.  Com.,  {Pa.)  2gAm.&» 
Eng.  R.  Cas.  145.  7  All.  Rep.  368. 

4.  Rit;lit  to  construct— Enjoining 
consti'iiftlon.  —The  terminal  points  of  a 
railroad  company  ciiartered  under  the  gen- 
eral law  (Ga.  Code,  §  1689)  being  Macon  in 
Bibb  county  and  Dublin  in  Laurens  county, 
and  the  terminal  points  of  another  railroad 
company  subsequently  chartered  under  the 
same  law  being  Sofkee  in  Bibb  county  and 
Savannah,  and  the  former  not  having  con- 
structed Its  roadbed  by  about  thirteen  miles, 
it  is  error  to  enjoin  the  latter  from  con- 
structing Its  railroad  within  ten  miles  of  the 
former.  The  legislative  intention  in  the 
above  section  is  to  apply  the  same  to  a  new 
railroad  where  there  is  another  railroad 
which  had  already  been  constructed  at  the 
time  of  the  passage  of  the  act,  and  the 
words  "  now  constructed  "  and  "  already 
constructed  "  in  that  section  mean  the  same 
thing.  Macon  &^  A.  R.  Co.  v.  Macon  &*  D. 
R.  Co.,  47  Am.  6-  Eftg.  R.  Cas.  315,  86  Ga. 
83.  iiS.E.Rep.  157. 

Under  the  laws  of  III.  an  existing  railway 
corporation  cannot  enjoin  another  such  cor- 
poration, organized  under  the  same  general 
railroad  act,  from  building  a  rival  road  be- 
tween the  same  termini  and  parallel  with 
the  track  of  the  former,  although  its  main 
and  lateral  tracks  and  switches  may  be  in- 
tersected and  crossed  by  the  proposed  new 
road,  no  continuous  portion  of  its  track 
being  sought  to  be  taken.  The  fact  that  the 
construction  of  the  new  road  may  damage 
the  business  of  the  old  one,  and  cause  delay 
in  operating  its  trains,  affords  no  ground  for 
enjoining  it.  Legal  damages  assessed  as  is 
provided  by  law  will, afford  the  old  company 
an  adequate  remedy  for  all  the  injury  it  may 
sustain.  East  St.  Louis  Connecting  R.  Co. 
v.  East  St.  Louis  Union  R.  Co.,  17  Am.  &> 
Ettg.  R.  Cas.  163,  108  ///.  265. 

A  clause  in  a  charter  rendering  the  con- 
sent of  the  company  necessary  to  legalize 
the  construction  of  a  competing  road  can- 
not affect  the  validity  of  the  law  as  an  act 


of  legislation.  Its  assent  is  no  part  of  leg- 
islation. It  does  not  create  the  liiw,  but 
merely  avoids  the  constitutional  objection 
to  its  validity.  Delaware  &*  R.  Canal  Co. 
v.  Camden  &*  A.  R.  Co.,  \6  N.  J.  Eq.  321. 

Even  if  the  exclusive  privilege  also  ex- 
tend to  way  business,  still  a  competing  route 
for  local  business  is  not  a  nuisance  unless  so 
near  the  route  of  complainant's  road  as  ma- 
terially to  affect  or  take  away  its  custom. 
Delaware  <S>»  R.  Canal  Co.  v.  Camden  &*  A. 
R.  Co.,  \6N.J.  Eq.  321. 

A  state  has  the  exclusive  control  over  the 
construction  and  maintenance  of  railroads 
and  other  internal  improvements  within  her 
own  domain.  The  right  to  build  and  use  a 
railroad  for  the  public  use  is  a  franchise, 
the  right  to  which  can  be  derived  from  the 
sovereign  only.  Such  franchise,  in  its  na- 
ture and  in  the  absence  of  express  provi- 
sion, is  exclusive  except  against  the  govern- 
ment, so  that  a  competing  road  established 
without  legislative  authority  will  be  en- 
joined. Raritan  &•  D.  B.  R.  Co.  v.  Dela- 
ware &*  R.  Canal  Co. ,  18  N.  /.  Eq.  546 ; 
modifying  idN.J.Eq.  356.— Followed  in 
Pennsylvania  R.  Co.  v.  National  R.  Co.,  23 
N.  J.  Eq.  441;  Citizens  Coach  Co.  v.  Camden 
Horse  R.  Co.,  i  Am.  &  Eng.  R.  Cas.  190, 
33  N.  J.  Eq.  267.  36  Am.  Rep.  542.  Quot- 
ed IN  Black  V.  Delaware  &  R.  Canal  Co., 
22  N.  J.  Eq.  130;  McGregor  v.  Erie  R. 
Co.,  35  N.  J.  L.  8^.— Pennsylvania  R.  Co. 
V.  National  R.  Co.,  23  N.  J.  Eq.  441. 

Any  railroad  over  the  state,  wherever 
built,  if  built  for  and  adapted  to  be  part  of 
a  through  competing  line  between  the  cities 
of  New  York  and  Philadelphia  is  unlawful 
and  liable  to  be  enjoined  unless  authorized 
by  legislative  enactment.  Pennsylvania  R. 
Co.  V.  National  R.  Co.,  23  N.J.  Eq.  441. — 
Following  Raritan  &  D.  B.  R.  Co.  v.  Dela- 
ware &  R.  Canal  Co.,  18  N.  J.  Eq.  546. 
Quoting  Erie  R.  Co.  v.  Delaware,  L.  &  W. 
R.  Co.,  21  N.  J.  Eq.  286.  Reviewing  New- 
burgh  &  C.  Turnpike  Co.  v.  Miller,  5  Johns. 
Ch.  (N.  Y.)  112;  Auburn  &  C.  Plank-Road 
Co.  v.  Douglass,  9  N.  Y.  454. 

No  authority  is  conferred  by  any  or  all  of 
the  charters  together  of  the  several  New 
Jersey  corporations,  co-defendants  with  the 
National  railway  company,  to  build  a  road 
across  the  state,  to  be  used  for  part  of  a 
competing  line  between  the  above  cities, 
and  the  attempt  by  defendants  to  build  such 
road  is  in  fraud  of  the  rights  of  complain- 
ants, and  will    be  enjoined.     Pennsylvaniit 


PARALLEL  AND  COMPETING   LINES,  5, 6. 


919 


part  of  leg- 
he  liivv,  but 
\l  objection 

Canal  Co. 

Eq.  321. 
cge  also  ex- 
peting  route 
ice  unless  so 
road  as  ma- 
lts custom. 
Ill  den  &*  A. 

rol  over  the 
of  railroads 
s  within  her 
Id  and  use  a 
a  franchise, 
ed  from  the 
e,  in  its  na- 
press  provi- 
the  govern- 
established 
will  be  en- 
Co.  V.  Dela- 
J.  Eq.  546; 
)LLOWED  IN 

il  R.  Co.,  23 
I.  V.  Camden 

R.  Cas.  190, 
\\1.  QUOT- 
\.  Canal  Co., 

V.  Erie  R. 
ania  K.  Co. 

441. 

e,  wherever 
to  be  part  of 
en  the  cities 

is  unlawful 
3  authorized 
Hsylvania  R. 
.  Eq.  441.— 
Co.  V.  Dcla- 

J.  Eq.  546. 
ire.  L.  &  W. 
EWING  New- 
ler,  5  Johns. 
Plank- Road 

any  or  all  of 
several  New 
nts  with  the 
}uild  a  road 
Dr  part  of  a 
above  cities, 
0  build  such 
)f  complaln- 
^ennsylvaniii 


R.   Co.  V.   National  A'.  Co.,  23  X.  /.   Eq. 

441. 

Where  a  railroad  in  process  of  construc- 
tion crosses  or  parallels  an  existing  railway, 
it  must  accommodate  itself  to  the  estab- 
lished way  of  the  latter,  and  cannot  be  so 
constructed  as  to  overlap  the  e.xisting  track 
or  right  of  way  longitudinally,  so  that  either 
track  cannot  be  operated  when  the  other  is 
in  'jse.  Sea/lie  &*  M.  R.  Co.  v.  State,  7 
Wash.  150,  34  Pac.  Rep.  551. 

5.  Validity  of  uuiitracts  between 
parallel  roads.— A  contract  between  par- 
allel roads  for  a  division  of  territory  within 
which  each  shall  prosecute  the  work  of  ex- 
tending branch  lines  without  interference 
from  the  other  is  not  void  as  against  pub- 
lic policy.  Ives  V.  Siiitt/i,8  N.  Y.  Supp.  \f), 
55  Hun  606,  28  A^.  Y.  S.  R.  917;  ajftrming 
3  A^.  Y.  Supp.  645. 

Provided  the  rates  charged  are  not  above 
a  reasonable  standard.  Manchester  &*  L. 
R.  Co,  V.  Concord  R.  Co.,  66  X.  II.  100,  20 
Atl.Rep.  383.— Following  Harew.  London 
&  N.  W.  R.  Co..  2  Johns.  &  H.  80. 

All  contracts  for  leasing  or  controlling 
competing  lines  are  void  under  N.  H.  Act  of 
July  5,  1867.  Manchester  &*L.  R.  Cp.  v.  Con- 
cord R.  Co.,  66  A^.  //.  100.  20  All.  Rep.  383. 

The  illegality  of  a  contract  of  consolida- 
tion between  two  competing  lines  is  of  no 
avail  as  a  defense  to  a  bill  for  an  account- 
ing and  a  return  of  property,  etc.,  passed 
under  the  contract.  Manchester  &*  L.  R. 
Co.  V.  Concord  R.  Co.,  66  A'.  //.  100,  20  At  I. 
Rep.  383. 

Where,  under  contract,  one  railway  com- 
pany uses  the  track,  equipments,  etc.,  of  an- 
other road  for  thirty  years,  ultra  vires  can- 
not be  set  up  as  a  defense  to  a  bill  for  an 
accounting  and  a  return  of  the  property. 
Manchester  &*  L.  R.  Co.  v.  Concord  R.  Co., 
66  X.  II.  100,  20  Atl.  Rep.  383. 

The  act  of  congress  (16  U.  S.  St.  578) 
granting  land  to  the  Texas  Pacific  R.  Co. 
and  forbidding'  discrimination  by  it  against 
any  connecting  or  intersecting  road,  and 
the  Texas  Act  of  May  2,  1873,  forbidding 
the  company  to  enter  into  any  combination 
with  any  other  road  parallel  with  it  so  as 
to  give  the  latter  control  of  its  rates,  are 
both  violated  by  a  pooling  and  traffic  ar- 
rangement with  another  road  which  has 
two  hundred  miles  of  track  paralleling  it 
within  said  state.  .Missouri  Pac  R.  Co.  v. 
Texas  &*  P.  R.  Co.,  28  Aw.  &*  Eng.  R.  Cas. 
I.  30  Fed.  Rep.  2.— FOLLOWED  IN  Cutting 


V.    Florida   R.  &    N.    Co..  43    Fed.    Rep 

747- 
«.  Parallel  street  railwaj's.  —  Mo. 

Act  of  Jan.  16,  i860,  §  3,  providing  that  "  no 
street  railroad  shall  hereafter  be  constructed 
in  the  city  of  St.  Louis  nearer  to  a  parallel 
road  than  the  third  |)arallel  street  from  any 
road  now  constructed,  or  which  may  here- 
after be  constructed,  except  the  roads  here- 
inbefore mentioned,"  prevents  the  construc- 
tion of  any  parallel  lines  in  the  city  within 
three  blocks  of  each  other  except  as  to  the 
three  companies  named.  They  may  con- 
struct their  roads  within  that  distance  of 
each  other,  but  not  of  the  roads  of  any 
other  companies.  St.  Louis  R.  Co.  v.  North- 
western St.  L.  R.  Co.,  69  Mo.  65;  reversing 
2  Mo.  App.  69.— Quoting  Com.  v,  Pitts- 
burgh &  C.  R.  Co.,  24  Pa.  St.  160. 

In  determining  what  are  parallel  roads 
within  the  meaning  of  the  above  statute, 
neither  the  relative  location  of  the  termini 
nor  the  general  direction  of  the  entire  line 
of  the  roads  can  be  regarded  as  controlling 
circumstances;  nor  is  it  necessary  that 
every  part,  or  even  the  greater  part,  of  the 
roads  shall  be  parallel.  Two  roads  the 
gentral  direction  o\  which  are  substantially 
the  same  for  two  and  a  half  miles  will  be 
deemed  parallel,  though  their  termini  are 
wide  apart,  and  the  general  direction  of  the 
two  is  not  the  same.  St.  Louis  R.  Co,  v. 
Northwestern  St.  L.  R.  Co.,  69  Mo.  65  ;  re- 
versint^  2  Mo.  App.  69. 

Where  one  company  is  proceeding  to 
build  in  violation  of  the  above  statute,  an- 
other company  may  enjoin  it  without  proof 
of  damage.  St.  Louis  R.  Co.  v.  North- 
7ve stern  St.  L.  R,  Co.,  69  Mo,  65  ;  reversing 
2  Mo.  App,  69. 

The  above  statute  has  never  been  re- 
pealed, and  the  municipal  assembly  of  the 
city  of  Si.  Louis  has  not  the  power  to  repeal 
it.  St.  Louis  R.  Co.  v.  South  St,  Louis  R. 
Co.,  72  Mo,  67.— Reviewed  in  St.  Louis  v. 
St.  Louis  R.  Co.,  26  Am.  &  Eng.  R.  Cas. 
534,  89  Mo.  44. 

I^a.  Const,  art.  17,  §  4,  providing  that 
"  no  railroad,  canal,  or  other  corporation 
*  *  *  siiall  consolidate  *  *  *  with,  or 
lease  or  purchase  the  works  or  franchises 
of,  or  in  any  way  control,  any  other  railroad 
or  canal  corporation  owning  *  *  *  ^  par- 
allel or  competing  line,"  is  not  applicable 
to  street-railway  companies.  Gyger  v.  Phila- 
delphia  City  Pass.  R.  Co. ,  1 36  Pa,  St,  96,  -o 
Atl,  Rep,  399. 


i 


•* 
^ 


4 


920 


PARALLEL  LINES— PAROL   EVIDENCE. 


li: 


The  passenger  travel  over  parallel  streets 
of  cities  is  not  ni'Cc's.sarily  a  cc)in|)eling 
travel,  and  it  is  quite  clear,  tliercfore,  that 
the  sense  of  "coinpitiii;^'."  which  is  the  es- 
sential sense  of  the  proliibitioii  of  the  above 
section,  is  not  applicable  to  the  travel  upon 
the  streets  of  cities  and  towiis  over  street 
passenger-railways.  0}[i;er  v.  PltHiidelphia 
City  Pass.  A'.  Co..  136  Pa.  6V.  96,  20  A//. 
Rep.  399. 

N.  V.  Act  of  1884,  ch.  252,  §  14,  prohibit- 
ing a  horse-railroad  company  fro(,u  laying 
its  tracks  on  "  that  portion  of  any  street " 
occupied  by  another  company  is  not  re- 
stricted to  that  part  of  the  street  actually 
occupied  by  the  track,  but  extends  to  the 
space  on  each  side  of  the  track  to  the  whole 
width  of  the  street.  Forty-cecond  St.  &^  G. 
.V.  P.  A'.  Co.  v.  Thirty  fourth  St.  A'.  Co.,  20 
/.  &•  S.  {N.  }'.)  252;  appeal  dismissed  in 
102  A'.  V.  691,  mem. 


PARALLEL  LINES. 

Horse  and  cable  railways,  see  Cable  Rail- 
ways, 7. 


PARALLEL  RAILWAY. 
Duty  to  fence  in  cases  of,  see  Fences,  02t 


PARCEL  RATES. 
When  deemed  excessive,  see  Charges,  28- 
30. 


PARCEL  ROOMS. 
Deposit  of  baggage  in,  see  Kaugage,  128. 


PARCELS. 

Evidence  of  damages  where  land  lies  in  two 
or  more  divisions  or,  see  Eminknt  Do- 
main, 507. 

Notice    of  contents    of,   see    Express    Com- 

I'ANIKS,  li7. 

Sale  in  mass  or  in,  sec  Moktcacfs,  241. 
Several,  when  treated  as  part  of  one  tract, 
see  Eminent  Domain,  4J>0,  457. 


PARENTS. 

Consent  of,  to  employment  of  minor  child, 
see  EMri.DVfts,  Injukiks  id.  450,  4U5. 

Contributory  negligence  of  child  as  affecting 
right  of.  to  recover  for  loss  of  services, 

sec  ClIll.DKIA-,   InJI'KII  S  In,   78. 

Excessive  damages  in  actions  fjr  death  of, 
sec  Dkaiti  hv  Wmi.scKi  I.  Act.  4:iO. 


Instructions  as  to  damages  to  child  for  death 

of,  sec  Dkaiii  iiv  Wkongkiu.  Acr,  325< 
for  death  of  child,  see  Death 

iiv  Wkonc.kui,  Act,  .'i24. 
Measure  of  damages  for  causing  death  of, 

sec    Death   uv   Wrongeui,    Act,    388- 

3U2. 
to.  for  death  of  child,  see  Death  iiv 

Wronckul  Act,  403-412. 
Of  injured  child,  contributory  negligence  of, 

see  Children,  Injuries  id,  1  14-140. 
Release  of  claim  by,  for  damages  to  child, 

see  EMi'i.oYfes,  Injukies  to,  400. 
Right  of,  to  sue  for  causing  death  of  child, 

see  Death  by  VVroncful  Act,  87-89. 


PARI   DELICTO. 

Rule  that  equity  will  not  interfere  between 
parties  in,  !>ee  Equity,  3. 


PARI  MATERIA. 

Construction  of  statutes  in,  see  Animals,  In- 
juries to,  14  ;  Statutes,  40. 


PARKDALE. 
Decisions  particularly  applicable  to,  see  Mu- 

NICH'AI,  CoKI'tlKAITONS,   rtl. 

Ordinance  requiring  fences  where  road 
passes,  see  Sikkkis  and  Highways, 
312. 

PARKS. 

Condemnation  of,  for  railway  purposes,  see 
Eminent  Domain,  127. 


PARLIAMENTARY  DEPOSITS. 
Disposal  of.  on  winding  up,  see  Dissolution, 

ETC.,  31. 

tramway,  see  Tramways,  8. 


PAROL. 

Appointment    of    agent,     validity   of,    see 

Ackncy,  2. 
License  to  flood  land  by,  see  Flooding  Lands, 

r»». 

Proof  of  book   entries   by,    see  Evidence, 

150. 
Rules  of  company,  when  provable  by,  see 

Evidence,  140. 


PAROL  CONDITIONS. 

In  subscriptions  to  stock,  see  Subscriptions 
to  Stock,  202. 


PAROL  EVIDENCE. 

In  actions  on  stock  subscriptions,  see  Sub- 
scriptions to  Siock.  111. 


d  for  death 
LT,  .'125. 

sec  Dkatii 

;  death  of, 
ci,    U88- 

Dkatii  by 

ligence  of, 

4-140. 

s  to  child, 

iU. 

i  of  child, 

87-80. 


e  between 


NIMALS,  In- 


:o,  see  Mu- 

here   road 

Highways, 


rposes,  see 
)SITS. 

ISSOLUTION, 
ilWAYS,  8. 

ty    of,    see 

>ING  Lands, 

Evidence, 

>le  by,  see 

JSCRIPTIONS 


s,  see  Sub- 


partial  DELIVERY-PARTIES. 


931 


Of  oral  agreement,  notwithstanding  written 
contract,  sl-c  Cakkiace  i>I'  Livk  Stock, 
t>8. 

To  contradict,  vary,  or  explain  bill  of  lading, 

see  Itll.I.S  UK  I.ADINC,  4U-44. 

—  explain  or  contradict  writings,  see  Car- 

KiAOK  OK  Mkkciiandisk,  747* 

—  show  real  contract,  notwithstanding  ex- 

istence of  passenger-ticket,  see  Tickets 

AND  FaKKS,  is, 

—  vary  agreement  to  issue  free  pastes,  see 

Passes,  2. 
or  explain  bill  of  lading,  see  Bills  of 

Lading,  12* 
writings  generally,  see  Evidence, 

178-100. 
shipping   contract,  see    Carriage  of 

Mkrciiandisk,  401. 


PARTIAL  DELIVERT. 
Effect  of,  on  carrier's  lien  for  charges,  see 

ClIARGKS,    70. 

lien  for  charges,  see  Carriage  of 

Mkrciiandisk,  mtii. 
Right  to  charges  in  cases  of,  see  Charges, 

70. 


PARTIAL  LEGISLATION. 

Validity  of,  see  Sta  1  utks,  9. 


PARTIAL  LOSS. 
Rights    of  consignee  in    cases  of,  see  Car- 
riage uk  Merchandise,  113. 


PARTIES. 

Admissions  by,  as  evidence,  see  Evidence, 
1»!2. 

Amendments  in  respect  to,  see  Pleading, 
14». 

Credibility  of,  see  Witnksses,  20. 

Death  of,  as  ground  of  abatement,  see  Abate- 
ment, (I. 

Depositions  of  opposing,  as  evidence,  see 
Evidence,  2U2. 

Designating,  in  petition  in  condemnation 
proceedings,  see  Kminent  Domain,  rtlJl. 

Entitled  to  compensation  under  English  com- 
pulsory purchase  laws,  see  Eminent 
Domain,  1  l5o-l  105. 

Examination  of,  before  trial,  see  Discovery, 

ETC.,  8    10. 

In  actions  against  carriers  of  passengers,  see 

CaKKIAGE  UK  rA-SSENiJEKS,  5JII-530. 

for  assault,  see  Assaiii.i,  1. 

injuries  to  children,  see  Children, 

Injuries  to,  J  till,  154. 
injury  to  the  person,  or  property  of 

married  women,  see  IIusiiand  and  Wife, 

»i-:i5. 


In  actions  for  personal  injuries  at  station,  see 

SlAIIuNh  AMI  DeI'OTS,    128,   12U. 

—  attachment  suits,  see  Atiachmknt,  etc., 

n-ii». 

—  ejectment,  see  IIjkctment,  2:1. 

—  mandamus  cases,  see  Mandamcs,  28,  2i>. 

—  proceedings  before  Interstate  Commerce 

Commission,  see  Intkhhtaik  Commerce, 

i«n. 

—  quo  Warranto,  see  Quo  Warranto,  7. 

—  stock-killing  cases,  see  Animals,  Injuries 

Tu,  :u:i-.'i25. 

—  suits  against  consolidated  companies,  see 

Consolidation,  47. 

by  assignees,  see  Assignment,  20,  21 . 

for  taxes,  see  Taxation,  ill 4. 

trespass,  see  Trespass,  8,  lO,  11, 

211. 

to  enforce  stockholders'  liability  to 

creditors,  see  Stockholders,  <(1. 

foreclose  railway  mortgages,   see 

Mortgages,  1 75- 1 88. 

Jurisdiction  as  dependent  upon  diverse  citi- 
zenship of,  see  Federal  Cour is,  U,  4. 

residence  of,  see  Jurisdiction,  4. 

Multifariousness  as  to,  in  equity,  see  Pi.ead- 

INC,  8:1. 

Named  and  described  in  equity  pleading,  see 
Pleading,  81. 

Naming  in  process,  see  Process,  4-0. 

Notice  of  amendments  to  adverse,  see  Plead- 
ing. io». 

On  appeal,  see  Appeal  and  Error,  132) 
Eminent  Domain,  t>31-1>33. 

Pleading  defect  of,  see  Pleading,  42. 

Right  of  stockholders  to  be,  in  suits  against 
corporation,  see  Stockholders,  80,  81. 

Substitution  of  new  parties,  see  Abatement, 
17. 

To  actions  against  foreign  corporations,  see 
Foreiun  Cukpurations,  23,  24. 

—  —  at  law  by  abutter  for  injury  sustained 

by  railway  in  street,  see  Streets  and 

Highways,  2.*t5. 
for  causing  death,  see  Death  by  Wrong- 
ful Act,  8(M>4. 

conversion,  see  Trover,  3-8. 

damages  caused  by  fire,  sec  Fikes, 

143-1 03. 
for  interference  with  property, 

see  Eminent  Domain,  1003. 
nuisances,  see  Nuisance,  28, 

2». 

dividends,  see  Dividends,  13. 

flowing  lands,  see  Flooding  Lands, 

03-07. 
loss  of  baggage,  see  Baggage,  107, 

108. 
negligence,   see  Negligence,   80- 

83. 


16 

3 


% 

^ 


s 


922 


PARTIES  TO  ACTIONS,  1. 


3 


To  Actiona  for  tpecific  performance  of  con- 
tract for  right  of  way,  see  IIminkm  Dti- 

MAIN,  ts'jn. 

on  construction  contracts,  see    Cun- 

sTRUfiKiN  (IK  Railways,  lOrt. 

contracts,  sec  Con  ik acts,  1M>-1>2. 

coupons,  see  Coupons,  lO,  17, 

upon  covenants,  see  Covknants,  10. 

leases,  sec  Lkasks,  kic,  104> 

—  an  accounting,  see  A(  coi  ntinc,  1,2. 

—  application  for  receiver,   see   Keckivkrs, 

24. 

—  bill  in  equity,  sec  E(j(;itv,  27. 

to  enjoin  railway  in  street,  sec  Stkeets 

AND  IllCIIWAVS,  245. 

redeem  from  mortgage,  see  Mort- 

GACKS,  llin, 

set   aside    foreclosure    sales,    see 

MoKTOACRS,  2M8. 

—  condemnation  proceedings,   see  Eminent 

Domain,  25:<-27:I- 

—  creditors'  suits,  sec  Ckkihtors'  Hill,  7. 

—  deeds,  see  Deeds,  I. 

—  foreclosure  of  mechanics'  lien,  see  Liens, 

—  judgments,  rules  relative  to,  see  Juno- 

MKNI,  2. 

—  proceedings    for   construction  of    grade 

crossing,  see  Crossing  uk  Streets  and 
Highways,    108. 

to  compel  issue  of  railway  aid  bonds, 

see  Municipal  and  Local  Aid,  2UO. 

condemn  crossing  of  railway,  see 

Crossincs  op  Railroads,  20. 

dissolve  corporation,  see  Dissolu- 
tion, ETC.,   lil-Kt. 

enforce  laborers'  lien,  see  Liens,  58. 

—    lay  out   street  over  railway,  see 

Crossing  OF  Streets  and  Highways,  72. 

—  —  under  Interstate  Commerce  Law,  see 

Interstate  Commerce,  1(11. 

—  suits  against  carrier,  see  Carriage  of 
Merciiandise,  705-722. 

carriers  of  cattle,  see  Carriage  of 

Live  Stock,  l.tO. 
elevated   railways,   see   Elevated 

Railways,  77-05. 

—  —    —    express  companies,  see  Express 

Companies,  81. 

by  and  against  corporations,  see  Cor- 
porations, 11>. 

counties,  see  Coun  i  ies,  4. 

—  —    —    stockholders,   see  Stockholders, 

123,  124. 

—  —  competency  of,  as  witnesses,  see 
Witnesses,  U,  lO. 

for  injuries  to  crops,  etc.,  from  failure 

to  fence,  see  Fences.  105-107. 

employes,  see    Employes,  In- 
juries TO,  502. 
libel  or  sLmder.  s<r  I.ihki,  kh-.  ,  O,  7. 


To  proceedings  for  loss  of  goods  carried,  see 
Cakriack  ok  Mkri  handisk,  122 

personal  injuries  at  or  near  bridges, 

see  Kridoes,  etc.,  54. 

specific  performance,  see  Specific 

l'EI<Kr)KMAN(:E,  2il. 

on  commercial  paper,  sec  Bills,  etc., 

20. 

corporate  bonds,  see  Bonds,  5.'I,  55. 

debentures,  see  Debentures,  15. 

fire  policies,   see   Fire   Insuranck, 

17,  18. 

to  cancel  railway  aid  bonds,  see  Mu- 
nicipal and  L<)(  ai.  Aid,  400,  401. 

enforce  railway  aid  bonds,  see  Mu- 

Ni(  IPAL  AND  Local  Aid,  !I80,  HW}, 

subscriptions  to  stock,  see  Sub- 
scriptions TO  Stock,  8JI-80. 

enjoin  construction  of  street  rail- 
ways, see  Si  reet  Railways,  207. 

—  —   —   —    railway  aid  proceedings,   see 

Municipal  AND  Local  Aid,  KCI. 

—  —  —  —  unlawful  taxes,  see  Taxaiion, 

;i58. 

foreclose  deeds  of  trust,  see  Deeds 

OF  Trust,  1«,  17. 
restrain  issue  of  railway  aid  boads, 

see  Municipal  and  Local  Aid,  iWH, 

—  trespass  by  landowner  for  wrongful  inter- 

ference with  property,  see  Eminent  Do- 
main, 1004,  1005. 

—  trover  against  carrier  of  goods,  see  Car- 

riage OK  Merchandise,  :t08. 
Who  entitled  to  damages  for  land  taken,  see 
Eminent  Domain,  424-447. 

—  may  appeal,  see  Appkai.  andEkror,  1-4. 
in    condemnation   proceedings,   see 

Eminent  Domain,  871-880. 

Apply  for  certiorari,  see  Certiorari,  O. 

attack    conveyance  as  fraudulent,  see 

Fraudulent  Conveyances,  ii. 

intervene,  see  Intervention,  1,  3. 

sue  for  interference  with  private  ways, 

see  i'RiVATE  Ways,  12,  i:t. 

misdelivery  of  goods,  see  Car- 
riage of  Merchandise,  274. 

—  generally,  see  Actions,  it. 

in  partition,  see  Pari ition,  1,  3. 


I. 
II. 


PARTIES  TO  ACTIONS. 

AT  LAW 

IK  EQUITY 


922 
930 


I.  AT  LAW. 

1.  Who   may   Hiie,  {rciicrully.— If  a 

duty  exists  from  defendant  to  plaintifl  and 
is  neglected,  to  the  injury  of  plaintiff,  lie  has 
a  right  to  sue  for  damages,  and  it  is  not 
necessary  that  such  duty  should  have  arisen 


PARTIES  TO  ACTIONS,  1. 


923 


carried,  see 
22 

'HT  bridges. 

ec  Sprcipic 
Bills,  etc., 

>s,  n.'i,  55. 

KKS,   15. 
Insuranck, 

dt,  si-e  Mil- 

401. 
d»,  see  Mu- 

.'lUO. 

k,  see  Sub- 

• 

street  rail- 
SOT. 
edings,   lee 

Taxation, 

,  see  Dkrds 

'  aid  boada, 

ingful  inter- 

MINENT   Du- 

Is,  see  Car- 
i  taken,  see 

KKOK,    1-4. 

edings,   see 

m 

TIOKAKI,  O. 

idulent,  see 

'.  1,  2. 

Ivate  ways, 

Is,  see  Car- 

I. 

•N,  1,  3. 


rs. 


922 


ully.— If  a 

aintifl  and 
itiflT.  lie  lias 
i  it  is  not 
lave  arisen 


out  of  a  contract  between  tho  imrtn-s.  ('i>/- 
ttti  V.  London  6-  A'.  W.  N.  Co.,  16  (J.  /,'.  984, 
1 5  /iir.  1053,  20  /..  /.  2.  //.  41 1. 

Where  one  company  lenses  its  road  to 
another  in  consideration  that  the  lessee 
covenants  to  pay  certain  mortRaKC  bonds 
issued  l)y  the  lessor,  parties  holdin^r  such 
bonds  have  a  right  to  use  the  name  of  the 
lessor  in  suing  on  the  hotirls.  Mississippi 
C.  A'.  Co.  V.  SoulAern  H.  Assoc,  8  P/iHa.  (/'.i ) 
107. 

Where  an  erection  in  a  watercourse  is  the 
immediate  cause  of  injury  to  the  possession, 
and,  without  further  interference  by  the  act 
of  man,  would,  in  the  ordinary  course  of 
things,  continue  to  be  so  on  the  determina- 
tion of  the  tenancy,  the  reversioner  has  a 
right  of  action  on  the  ground  that  the  en- 
croachment on  the  inheritance  may,  by  lapse 
of  time,  ripen  into  a  right,  where  he  has 
notice  or  knowledge  of  it.  Tinsman  v. 
Belvidere  Del.  A'.  Co.,  25  N.  J.  L,  255. 

The  trustee  under  a  trust  deed  which 
gave  to  one  C.  for  life  the  possession  and 
use  of  a  tract  of  land  cannot,  during  C.'s 
lifetime,  recover  from  a  railroad  company  a 
strip  of  land  granted  to  it  by  C.  for  a  road- 
bed until  C.'s  right  of  possession  has  been 
adjudged  forfeited,  which  can  only  be  done 
in  a  case  to  which  he  is  a  party.  Tutt  v. 
Port  lioyal&'  A.  R.  Co.,  20  //;«.<S-  Eng.  A'. 
Cas.  367,  20  So.  Car.  1 10. 

A  contract  l)etween  a  city  and  certain  of 
its  citizens  with  a  railway  company  whereby 
the  latter  agreed  for  a  dcsigiUited  considera- 
tion to  locate  and  |)ermaiiently  keep  in  oper- 
ation its  main  machine  shops,  if  sought  to 
be  enforced  against  the  company,  should  be 
brought  by  the  municipality  or  by  such  of 
its  citizens  as  participated  in  furnisiiing  the 
consideration,  and  who  thus  have  a  pecun- 
iary interest  in  the  enforcement  of  the  con- 
tract. S/.  Louis,  A.  &>  T.  K.  Co.  v.  Harris, 
73  Tex.  375,  II  S.  W.  Rep.  405. 

In  the  absence  of  proof  that  a  suit  brought 
in  the  name  of  a  corporation  is  not  autlioi- 
ized  by  it,  its  assent  will  be  presumed,  al- 
though the  corporation  is  but  a  nominal 
party.  Bangor,  O.  &-  AI.  R.  Co.  v.  Smith,  47 
Me.  34. 

A  civil  action  cannot  be  maintained  in  the 
name  of  the  people  for  the  redress  of  private 
wrongs ;  these  are  remediable  only  at  the 
suit  of  the  parties  injured.  The  neople 
cannot  intervene  except  upon  the  a- v^ertion 
of  a  distinct  right  on  the  part  of  the  public 
in    respect  to  the  subject-matter  litigatetl. 


Prop/,-  v.  Albany  (J*  S.  R.  Co.,  n  N.  Y.  161. 
f)  ^h/i.  Ry.  AV/.  73;  rei'i-rsing  55  /larl>.  344, 
2  Lans.  459.  7  .U'li.  /'r.  N.  S.  265,  5  Lans.  25, 
I  Lans.  308,  38  Iltni'.  Pr.  228,  57  Harh.  204, 
8  Abb.  Pr.  N.  S.  122,  39  /Aw.  Pr.  49.- 
QuoTH)  IN  People  V.  New  York,  L.  E.  & 
W.  R.  Co.,  63  How.  I»r.  291. 

A  transfer  was  made  by  a  partnersliii)  to 
defendants  of  tiieir  rriad,  franchises,  Imrses, 
harness,  etc..  "  subject  to  tlic  ()aynient  of  ail 
the  money  which  the  |>artnership  was  iionnd 
to  pay  on  account  of  sewers,"  etc..  which 
transfer  was  accepted  by  defendants  in  writ- 
ing. Held,  that  a  party  having  a  claim  on 
account  of  sewers,  as  specified,  could  main- 
tain an  action  against  defendants,  and  was 
entitled  to  recover  from  them  the  amount 
due  to  him  from  the  partnership.  Dingel- 
dein  v.  Third  Ave.  R.  Co.,  yj  N.  Y.  575;  re- 
versing 9  Rosw.  79.  — DiNTiNGUiSHiNc;  Bel- 
mont V.  Coman,  22  N.  V.  438. 

An  officer  of  the  post-office  department 
whom  a  railway  company  .  is  bound  by 
statute  to  carry,  and  who  is  injured  owing 
to  its  negligence,  may  maintain  an  action 
for  damages,  although  he  sustains  no  con- 
tract relation  towards  the  company.  Collett 
V.  London  &*  N.  IV.  R.  Co..  16  Q.  B.  984,  15 
Jur.  1053.  20  L.  /.  Q,  />'.  411. 

Parties  having  the  control  of  whale  oil 
taken  from  vessels  at  Panama  delivered  it 
to  the  Panama  R.  Co.  for  transportation  by 
that  company  and  the  Pacific  Mail  Steam- 
ship Co.  to  New  York.  The  parties  deliver- 
ing the  oil  (or  transportation  were  also  the 
consignees,  but  there  was  evidence  that  cer- 
tain seamen  had  an  interest  in  the  oil.  Held, 
in  an  action  against  the  carriers  to  recover  _ 
damages  for  negligence  in  the  transporta- 
tion of  the  oil,  that  the  contracting  parties 
must  be  assumed  to  have  sufficient  title  and 
right  to  maintain  the  action  ;  there  being  no 
evidence  that  the  seamen  were  either  part- 
ners or  joint  owners  with  the  plaiiititT,  they 
were  not  necessary  parties  to  the  action. 
Swift  V.  Pacific  Mail  Steamship  Co.,  30 
Am  <S-  Eng.  R.  Cas.  105,  106  A^.  K.  206,  12 
A^.  E.  Ri'P.  583,  8  A'.  Y.  S.  R.  602 ;  a^rm- 
ing  36  Hun  643,  mem. 

The  owner  of  a  ship  sued  a  connecting 
railway  carrier  for  the  detention  of  his  vessel 
at  the  railway's  terminal  wharf  in  conse- 
quence of  the  latter's  alleged  suspension  in 
the  receipt  of  such  ship'-?  cargo,  and  dis- 
closed by  his  declaration  that  such  ship  was 
under  charter  with  a  tiiird  person,  not  a 
party  to  the  suit,  to  deliver  her  cargo  to  de- 


5 


5 
I 


s 


994 


PARTIES   TO   ACTIONS,  2, 3. 


53! 


#  ■*•••■ 


R^'H^^PB'^ 


fenHant  railway  company,  and  that  the  rail- 
way company  was  under  contract  with  such 
third  person  tliere  to  receive  such  cargo  and 
t"  carry  the  same  further.  //»•/</,  thai  de- 
fendant railway  company  s  duty  to  receive 
rind  carry  the  cargo  was  due  directly  and 
primarily  *o  such  third  (Mirson,  the  char- 
terer of  the  snip,  and  that  he  alone  could 
[iropeily  siit  for  the  breach  of  such  duty. 
Fritman  v.  Loui'ville  &-  N.  K,  Co.,  32  Fla. 
420,  13  So.  I\y/>.  892. 

v..  I.iiiln  rcqiiiriiiK  rcnl  pnrty  in  in- 
ter»!Ht  to  Hlic— A  reversioner  is  not  en- 
titled to  maintain  an  iiction  for  a  nuisance 
unless  his  reversionary  interest  is  affected. 
Muui/ord  V.  Oxford,  IV.  &•  H".  A\  Co.,  i  H. 
&*  A'.  34.  25  L.  J.  Ex.  265. 

A  niiistcr  cannot  sue  for  an  injury  to  his 
servant  while  a  passenger  unless  he  was  a 
party  to  the  contract  under  which  the  ser- 
vant was  carried.  Alton  v.  .Midland  R.  Co., 
19  C.  li.  N.  ..'.  213,  II  Jnr.  \\  S.  672,  34  L. 
J.  C.  P.  292,  13  H^.  A'.  918.  12  L.  '/'.  joy 

A  servant  may  sue  for  tlic  loss  of  his  lug- 
gage, although  his  master  paid  his  fare  and 
took  the  ticket,  the  action  being  founded  on 
a  breach  of  duty  and  rot  on  a  contract. 
Marshall  s.  York,  N.  &^  B.  R.  Co.,\\  C.  li. 
653,  16  /ur.  124,  21  L.  /.  C.  /'.  34. 

A  certificate,  issued  and  signed  by  the 
chief  engineer  of  a  railroad  company,  "  that 
the  sum  of  $1000  is  due  to  A.  B.  from  the 
Ala.  &  Miss.  Rivers  R.  Co."  is  a  contract 
for  the  payment  of  money  within  the  mean- 
ing of  Ala.  Code,  §2129,  requiring  an  action 
to  be  brought  in  the  name  of  the  party 
really  interested.  Alabama  &*  M.  R.  R. 
Co.  V.  Sandford,  36  Ala.  703. 

Defendant  was  indebted  to  a  railroad 
company  and  g&ve  his  note  therefor  to  the 
treasurer  of  the  company,  designated  by 
n.tine  and  as  treasurer.  It  was  the  usage  of 
tlic  company  to  make  such  obligations  pay- 
able to  its  treasurer,  and  this  note  was  sent 
to  him  as  treasurer  to  hold  for  payment. 
Held,  that  suit  tiiereon  was  properly  brought 
in  his  name.  Hynur  v.  /jams,  56  Md. 
470 

On  a  written  order,  made  f  ir  a  considera- 
tion ino. ing  from  a  railroad  company,  to 
deiiver  property  to  "  J.  S.,"  presiilent  of  the 
company,  tile  company  may  sue  in  its  own 
naiuo.  Easttrn  li.  Co.  v.  ISeitedut,  5  Ciray 
(.Mass  )  561.  —  Distinguishing  Stackp<  le 
7'.  .Arnold,  1 1  Mass.  27. 

I'lainiitI,  who  carried  on  business  in  her 
own    iiami',    having    possession    of    ceiiiiin 


gooils,  claiming  to  own  them,  delivered 
lliein  to  defendant's  agent  t<i  be  transported. 
Htld.  in  an  action  for  the  loss  of  the  goods, 
that  plaintifl  was  entitled  to  recover,  al- 
though some  third  person  might  have  an 
interest  in  her  business,  as  the  legal  interest 
in  the  contract  resided  in  her.  Mayall  v. 
Boston  (S«»  M.  R.  Co.,  19  A'.  //.  122. 

Where  the  cause  of  action  relates  to 
property  and  property  rights  belonging  to 
a  corporation  as  the  absolute  owner,  vested 
with  the  legal  title,  such  corporation  is  the 
real  parly  in  interest  to  prosecute  the  action. 
It  is  no  defense  to  such  action  that  another 
party  has  become  the  owner  "  of  the  sole 
beneficial  interest  in  the  rights,  property, 
and  immunities"  of  the  corporation,  and 
an  averment  of  that  character  in  the  answer 
may  be  stricken  out  as  immaterial  and 
irrelevant.  U'/nona  &*  St.  P.  R.  Co.  v.  St. 
Paul  &*  S.  C.  R.  Co.,  23  Minn.  359. 

Xi.  TriiHtcu  of  an  cxprcHH  triiHt.  — 
A.  executetl  a  duly  recorded  trust  deed  on 
his  mule,  which  remained  in  his  possession 
even  after  maturity  and  non-payment  of  the 
debt,  and  while  so  in  his  possession  was 
k'lled  by  the  negligence  of  a  railroad  com- 
pany. Hild,  that  a  settlement  by  A.  with 
the  company,  which  was  ignorant  of  the 
trust  deed,  and  was  not  in  collusion  with 
A.,  was  a  bar  to  a  suit  by  the  trustee.  Loeb 
V.  Chicago,  St.  Z..  <^  A'.  O.  R,  Co.,  60  Miss. 

933- 

Plaintiff,  having  sold  land  as  agent  and 
received  the  purcliase  money  delivered  the 
latter  to  an  express  company  for  transporta- 
tion to  the  owner.  It  was  lost  in  transit. 
Hild.  liiat  plaintifT  could  maintain  an  action 
for  its  recovery.  He  was  the  "  trustee  of 
an  express  trust,"  within  the  meaning  of 
Mo.  Rev.  St.  1879,  S  3463.  Snider  v.  Adams 
Exp.  Co.,  16  Am.  <3-  Eng.  R.  Cas.  261,77 
Mo.  523. 

One  with  Vhom  a  contract  for  the  car- 
riage of  goods  is  made,  and  who  is  described 
thert-in  as  the  consignor,  consignee,  and 
sole  owner,  may  maintain  an  action  to  re- 
cover an  overcharge  exacted  by  the  carrier, 
althoiigli  he  was  not,  in  fact,  the  owner, 
and  <lid  not  |)crsonally  furnish  and  pay  the 
overcliart,'f.  I'laintilT  in  such  case  is  "  a 
trustee  <if  an  express  trust,"  within  the 
meaning  of  Wis.  Rev.  St,  §  2607.  Jt'attr- 
iiiaii  v.  Cliidigo,  M  &^  St.  P.  R.  Co.,  18  „-/;«. 
&^  I'.ng.  R.  Cas.  4.S6,  61  Wis.  464,  21  A'.  /('. 
Rtf<.  611.— yuoTiNO  Hooper  f.  Chicago  <i 
N.  W.  R.  Co.,  27  Wis.  91. 


PARTIES  TO   ACTIONS,  4,  rt. 


■P 


4.  HeirH  or  persoiinl   ro|>rcsoiit>i- 

tives.— Heirs  and  rlcvisces  who  have  taken 
possession  of  the  deceased's  lands,  and  not 
the  executor,  arc  entitled  to  maintain  an 
action  to  recover  compensation  for  land 
taken  after  the  ancestor's  death,  and  dam- 
ages arising  therefrom,  although  the  execu- 
tor has  not  been  discharged  at  the  time 
the  action  is  brought.  Ori^'nn  v.  Memphis 
&^  L.  N.  A\  Co..  39  //«/.  (S-  Zf//^'.  A\  Las.  75, 
51  Ark.  235,  II  S.  U^.  Rep.  96. 

Where  a  lot  is  injured  or  damaged  by 
the  construction  or  operation  of  a  railroad 
in  the  street  in  front  thereof,  a  right  of  ac- 
tion will  accrue  to  the  owner  of  the  lot  as 
soon  as  the  railroad  is  put  into  operation, 
and  on  the  death  of  such  owner  the  right  of 
action  will  pass  to  his  personal  representa- 
tive, and  not  to  his  heir  or  devisee,  such 
right  not  being  assignable.  Penn  Mitt.  /,. 
Ins.  Co.  V.  Heiss,  141  ///.}$,  31  A'.  E.  Rep. 
138. 

After  a  railway  company  htid  entered 
upon  land  without  acquiring  title  or  with- 
out having  damages  assessed  the  (^wner 
thereof  died.  Nothing  was  d(jne  in  his  life- 
time to  work  a  conversion  of  the  realty  into 
money.  Held,  that  the  heirs,  and  not  the 
administrator,  were  the  proper  parties  to 
maintain  an  action  of  ejectment.  Olhur  v. 
Pittsburgh,  V.  &•  C.  R.  Co.,  44  Am.  &^ 
Ene;.  R.  Cas.  175,  131  Pa.  St.  408.  19  .///. 
Rep.  47. 

A  cause  of  action  to  an  abutting  owner  for 
permanent  obsiructioiis  to  a  highway  by  a 
legally  authorized  railway  arises  on  the 
creation  of  the  obstructions,  and  passes, 
not,  with  the  fee  of  the  land,  to  successive 
owners,«but  to  the  personal  representatives 
of  the  one  fir^t  suffering  damage.  Greene 
V.  dWi'.'  York  C.  &*  If.  R.  R.  Co.,  65  //,m>. 
Pr.  {X.  Y.)  154,  12  Abb.  N.  Cas.  i24.~Ai'- 
PMKi)  iN'Uline  V.  New  York  C.  &  H.  K.  K. 
Co..  23  Am.  &  Eng.  R.  Cas.  3,  101  N.  Y.  98, 
4  N.  E.  Rep.  536. 

5,.  €oiiNi((iior  or  coiiNiKiice.  *  — 
(1)  IV/ten  the  consignor  should  sue. —  The 
consignors  and  owners  of  goods  sent  by 
common  carriers  are  the  proper  parties  to 
sue  for  negligence  in  the  transportation. 
Sanford  v.  Housatonic  R.  Co.,  1 1  Cush. 
(Mass.)  155.  Price  v.  Powell,  3  N.  Y  322. 
Coombs  V.  lirirtol  &»  E.  R.  Co.,  ^  H.  ir*  N. 
510,  27  L.J.  Ex.  401. 


*  See  «Iio  Cakriauk  ok  MiiKcuANDisE,  705- 
722. 


The  ronsicrnor  is  the  proper  party  to  sue 
a  carrier  for  nci^liiicntly  injiiriiig  live  stock 
ship|)ed,  whether  lie  be  the  owner  of  the 
stock  or  n«)t.  .itchison  v.  Chicago,  R.  I.  &» 
P.  R.  Co.,fioAro.  213. 

Plaintiff  contracted  a  debt  and  remitted 
the  money  to  pay  the  same  by  express,  but 
the  company  never  delivered  it,  and  plain- 
tiff paid  the  debt  with  otiier  r.ioney.  lle/il, 
that  he  was  the  proper  party  to  sue  the  com- 
pany for  the  loss.  Southern  ,C.xp.  C<*.  v. 
Craft,  49  Miss.  480, 

A  consignor  of  goods  may  sue  the  carrier 
in  his  own  name  for  failing  safely  to  carry 
them.  If  it  appears  that  he  is  not  per- 
sonally interested,  lie  may  recover  for  the 
benefit  of  the  consignee  or  actual  owner. 
Illinois  C.  R.  Co.  v.  Schwarts,  13  ///.  App. 
4(X>-— yuo'i'iN'"'  Diinlop  7'.  Lambert,  6  C.  <S: 
F.  610.-  OuoTK.K  IN  Illinois  C.  R.  Co.  v. 
Miller,  32  III.  Ap().  259. 

Where  the  contract  for  the  sale  of  goods 
is  executory,  and  the  consignee  is  only  to 
pay  for  them  after  delivery,  the  consignor 
is  the  owner  until  the  goods  are  delivered, 
and  is  the  proper  person  to  sue  the  carrier 
for  failing  to  deliver  the  same;  and  he  is 
tiic  proper  party  to  sue  the  carrier  for  un- 
usual delay,  or  neglect  to  take  proper  care 
of  the  goodc  ■•.vhiie  in  store  before  sliipment. 
E'tit  Tenn.  6^  G.  R.  Co.  v.  Nelson,  1  Coldw. 
(":>  t  :,  272. 

U)  H'lien  the  consignee  should  sue.  — A 
ronsijjnec  to  whom  goods  are  shipped  who 
is  to  pay  the  freight  and  sell  the  same  on 
commission  has  sucli  a  special  property 
therein  as  to  enable  him  to  maintain  an  ac- 
tion against  the  carrier  for  the  detention  of 
the  same,  and  he  may  recover,  not  only  his 
own  flamages,  but  such  as  have  accrued  to 
the  general  owners.  Boston  &*  M.  R,  Co. 
V.  Warrior  Aftnver  Co.,  76  Me.  251. 

Where  goods  are  shipped  under  an  agree- 
ment by  which  the  consignee  is  to  pay  the 
freight,  and  apply  the  proceeds  of  the  sale 
of  the  goods  in  payment  r>f  advances  already 
made,  he  is  the  proper  party  to  sue  third 
parties  for  wrongfully  attaching  the  goods 
in  the  hands  of  the  carrier.  Wetzel  v. 
Pmver,  5  Mont.  214,  2  Pac.  Rep.  338. 

A  factor  wlio  has  accepted  a  draft  for 
goods  consigned  to  him  may  maintain  an 
action  against  a  carrier  for  a  delay  in  <arry- 
ing  the  same,  though  the  d(>lay  is  directed 
by  the  CDnsignor  after  shi|)ntcnt.  Ober  v. 
Indianapolis  ij^  St.  L.  R.  Co.,  1 3  Mo.  App. 


Ik 

s 


•4 


s 


i.l 


026 


PARTIES  TO   ACTIONS,  6. 


4  Hi 

■  i  s 


[','. 


;a?^ 


Wherpthe  consignor  of  goods  sold  to  the 
roiisignce  pays  for  their  carriage  to  an  in- 
IcTmodiate  station,  where  a  second  line  '.ai<C9 
them  and  delivers  ilieni  to  the  con?  gnce, 
who  pays  tiie  ciiarges  on  that  line,  tl' j  con- 
signet  may  sue  for  damage  done  in  transit 
over  such  hnc.  Mead  v.  Soutli-Eastern  R. 
Co.,  1 3  W.  R.  735. 

<l.  tl<»iii(l4'r  of  plaintiffs.— (I)  When 
joindfr  is  /r^'/tv. --  Persons  wlio  iiave  a 
joint  interest  in  tiie(hiniagcsrecoven)''' j  for 
destroying  property  may  join  in  an  action, 
tiiougii  they  are  not  joint  owners  of  the  wiiole 
of  the  property.  So  two  persons  in  posses- 
sion of  a  huiiding  used  as  a  mill  whicli  be- 
longs to  one  of  thctn  may  unite  in  an  action 
against  tlie  company  for  negligently  destroy- 
ing tlie  building  and  its  contents.  Cieaveland 
V.  Graiiii  Trunk  A'.  Co.,  42  /7.  449.  — Re- 
viKWKD  IN  I^aird  ?'.  Connecticut  &  P.  R.  R. 
Co..  43  Am.  &  Eng.  K.  Cas.  63,62  N.  H. 
254. 

And  the  same  rule  applies  where  suit  is 
brought  against  a  railroad  company  by  sev- 
eral plaintiffs  jointly  to  recover  damages  for 
the  destruction  of  grass,  turf,  rails,  pastur- 
age, hay,  and  cotton.  Missouri  Pac.  R.  Co. 
V.  Wise,  3  Tex.  App.  (Civ.  Cas.)  461. 

And  where  one  owns  a  wharf,  and  two 
others  furnish  money  to  improve  it  for  the 
benefit  of  all,  all  may  join  in  an  action  for  an 
injury  thereto.  Ashhy  v.  Eastern  R.  Co.,  5 
Mete.  (Mass.)  368. 

Damage  sustained  alike  by  all  the  indi- 
vidualsof  a  large  class  furnishes  no  founda- 
tion for  an  action  on  the  part  ul  a  single 
individual  of  the  class.  Currier  v.  West 
Side  El.  Patent  K.   Co.,  6  lUatchJ.  (U.  S.) 

487- 

The  fact  that  the  owners  of  riparian  lands 
have  agreed  to  divide  ihein,  but  to  hold 
the  riparian  rights  in  common,  docs  not 
prevent  them  from  maintaining  a  joint  ac- 
tion against  a  railroad  (ompany  for  inter- 
ference with  the  ripa'i.in  rights.  OrjiiiiH  V. 
Memphis  &^  /..  A'.  A'.  Co.,  39  Am.  &>  /'-ujf- 
R.  Cas.  75,  i;i  Ari:  235.  n  S.   W.  Rep.  9^). 

Separate  owners  «»f  articles  contained  in  a 
box  delivered  for  carriage  for  them  jointly 
may  jointly  sue  for  the  loss  of  the  goods, 
although  the  box  is  directed  to  one  of  them 
who  pays  the  freight,  Metcalfe  v.  London, 
/)'.  &*  S.  C.  R.  Co.,  4  C.  li.  N.  S.  318,  4  Jur. 
N.S.i,'6T,zi  L.J.C.P.  333. 

Where  the  owner  of  the  property  de- 
stroyed and  several  insurers  have  rights  of 
action  for  dilTercnt   portions  of  the  value, 


all  arising  out  of  the  same  wrongful  act, 
they  may  join  in  a  single  action  against  the 
wrong-doer.  Swarthout  v.  Chicago  &^  17. 
W.  R.  Co..  49  U'is.  625.  6  N.  IV.  Rep.  314. 
21  ^hn.  Ry.Rep.  153. 

The  presumpt.on  will  be  indulged  that  a 
wife  and  children  arc  properly  made  plain- 
tiffs to  a  suit  instituted  during  the  life  of  a 
deceased  husband  and  father  to  recover 
damages  for  an  injury  inflicted  on  the  wife, 
when  the  cause  of  action  survives.  Fordyce 
v.  Dixon,  70  Tex.  694,  8  .S'.  W.  Rep.  504. 

(2)  When  //('/.— Where  several  parties 
expend  money  in  organicing  a  railroad  un- 
der an  agreement  that  the  company  shall 
bear  the  expense  thereof,  each  party  so  ex- 
pending money  may  bring  an  action  against 
the  company  without  joining  the  others. 
Cataxvissa  R.  Co.  v.  Titus,  49  Pa.  St,  277. 

Two  or  more  parlies  owning  separate 
tracts  of  land  cannot  unite  in  the  same  ac- 
tion to  recover  damages  against  a  company 
f(jr  injuring  the  same.  To  enable  plaintitTs 
to  join  in  one  suit  they  must  have  a  com- 
munity of  interest.  Norfolk  S-  W.  R.  Co. 
V.  Smoot,8i   J 'a.  495. 

A  person  who  has  contracted  with  a  rail- 
road company  for  the  issue  of  a  large  num- 
ber of  excursion  tickets,  and  who  has  re- 
sold a  large  number  of  the  tickets  at  an  ad- 
vani.c,  can  maintain  an  action  and  recover 
the  full  aiiiount  of  damages  caused  by  the 
company's  breach  of  its  contrait  wiJioul 
joining  his  sub-purchaser  as  a  party  plain- 
tiff. Houston  <S-  T.  C.  R.  Co.  v.  Hill,  34 
.,'//;/.  6^  l'-*K>^-  R-  Cas.  363,  70  Tex.  51,7  S, 
W.  A',p.  659. 

Where  land  is  in  possession  of  a  life  ten- 
ant, the  reversioners  are  not  entitled  to 
damages  for  a  breach  of  a  Covenant  on  the 
part  of  a  railroad  company  to  construct  a 
certain  passage  under  its  track  during  the 
existence  of  the  life  tenancy,  and  therefore 
the  life  tenant  and  such  reversioners  are  not 
jointly  interested  in  the  damages.  Murt- 
feldt  V.  A'rw  York,  W.  S.  »S-  P.  R.  Co..  I 
Silv.  App.  93,  102  A^.  1'.  703.  mem.,  7  N.  E. 
Rep.  404,  2  A^.  y.  S.  R.  444  ;  affirming  34 
Hun  632.  mem. 

In  a  suit  against  a  railway  company  by  a 
tenant  for  damage  to  growing  crops,  it  is 
not  necessary  for  the  landlord  to  be  joined 
in  the  suit.  Texas  &*  P.  R.  Co.  v.  Payliss, 
C2  Tex.  570. 

Plaintiffs  were  the  surviving  obligees  of 
a  bond  executed  to  their  by  a  railway  com- 
pany to  secure  to  those  who  had  contrib- 


M 


.'f.'-lfn,; 


PARTIES   TO   ACTIONS,  7,8. 


927 


uted  money  to  the  road  return  of  it  in  the 
event  the  road  was  not  completed  to  a  cer- 
tain place*  in  a  certain  time.  /Mi/,  that  the 
oblijjecs,  acting  as  trustees  for  all  the  sub- 
scribers, could  sue  without  making  tlie  rep- 
resentatives of  one  of  tlieir  number,  who 
had  died,  parties.  A'ed  River,  S.  &*  W. 
A'.  Co.  V.  Blount.  3  Tex.  Civ.  App.  282,  22 
S.   ir.  Kep.  930. 

In  such  suit  plaintifis  arc  entitled  to  re- 
cover the  entire  amount  subscribed  and 
paid  by  the  citizens  to  the  company,  inciud- 
in);  that  subscribed  and  paid  by  the  de- 
ceased trustee.  Red  River.  S.  <S-  W.  R.  Co. 
V.  lilouni,  3  Te.x.  Civ.  App.  282,  22  S.  W. 
Rep.  930. 

Hill's  Greg.  Code,  §  381,  providing  that 
"  if  the  consent  «)f  any  one  who  should  have 
been  joined  as  |>laintitT  cannot  be  obtained, 
he  may  be  made  a  defendant,  the  reason 
thereof  being  stated  in  the  complaint,"  does 
not  apply  to  actions  at  law.  State  Ins.  Co. 
V.  Oregon  R.  &•  N.  Co..  20  Orejf.  563,  26 
/"itc.  Rep.  838. 

Suit  was  brought  against  a  line  of  steam- 
ers, a  copartncrshij)  composed  of  an  indi- 
vidual and  a  railroad  company,  which,  un- 
der its  charter,  had  no  power  to  form  such 
a  partnership.  Held,  tiiat  the  action  was 
demurrable.  There  was  nothing  in  it  to 
amend  by,  and  it  was  proper  to  refuse  an 
amendment  by  which  it  was  sought  to  sue 
the  ni>:  ural  person  and  the  company  as  in- 
dividual tort  feasors  united  in  a  common 
venture  as  carriers.  Ledsint^er  v.  Central 
Line  Steamers.  75  (7a.  567.  -  FoLI.owiNO 
Guim  7'.  Central  \i.  il'  H.  Co.,  74  Ga.  509. 

7.  Wlio  imay  bu  niiciI,  t;(>iu>riilly.— 
An  anion  of  contract  for  the  use  of  a  rail- 
road cannot  be  maintained  by  the  owner 
against  persons  who  do  not  recognize  his 
title,  but  use  tlie  railroad  adversely  to  him, 
under  a  bona  fide  claim  of  right,  by  virtue  of 
a  lease  from  another  person.  Kittredge  v. 
Peaslee,  3  Allen  (Mass.)  235. 

The  Western  railroad  being  the  succes- 
sor both  of  the  rights  and  liabilities  of  the 
Montgomery  &  West  Point  R.  Co.,  suit 
is  properly  brc.j^rht  against  it  for  a  personal 
injury.  Montgomery  &*  IV.  P  R.  Co.  v. 
Jloring,  51  (la.  582. 

Where  a  person  owning  a  bridge  franchise 
made  a  contract  with  a  railroad  for  the 
building  of  a  bridge  by  which  the  company 
passed  its  freights  and  passengers  over  free 
nnd  he  collected  toll  from  all  other  persons 
using  such  bridge,  an  action  for  an  injury 


to  a  person  using  the  bridge  and  paying  toll 
is  properly  brought  against  such  owner. 
Ti/t  V.  J'oivns,  53  Cta.  47. 

riaintilT  suefl  for  erecting  an  embank- 
ment in  'he  highway  in  front  of  his  property. 
The  evidence  showed  that  the  embankment 
was  erected  in  the  construction  of  a  road  in 
the  name  of  a  company  not  sued,  bu'  that 
defendant  company  had  the  use  of  such 
road,  and  that  its  officers  owned  the  greater 
part  of  the  stock  therein,  and  that  the  cm- 
l)imkment  was  authorized  by  defendant's 
directors,  and  paid  for  by  defendant,  and 
that  the  engineer  in  charge  received  his  in- 
structions from  defendant  or  its  officers, 
and  was  in  its  employ.  I/eld,  that  defend- 
ant was  the  proper  party  to  be  sued.  Grand 
Trunk  R.  Co.  v.  Fitzgerald,  19  Can.  Sup. 
Ct.  359. 

8.  or  Joined  us  dcfviidaiitH.'*— 

Both  a  railroad  company  and  its  servant 
n)ay  be  sued  in  a  joint  action  fo*-  the  tort  of 
the  servant  while  acting  in  the  discharge  of 
his  duty ;  and  this  is  so  though  the  duty 
might  have  been  performed  without  com- 
mitting the  wrong.  He^vett  v.  Swift,  3 
Allen  (Mass.)  420. — Foi,L.)\yiNG  Moore  v. 
Fitchburg  R.  Corp.,  4  Gray  (Mass.)  465. — 
I/ussey  v.  Norfolk  Southern  R.  Co.,  98  A'^, 
Car.  34,   2  Afn.  St.  Rep.  312,  3  S.  £.  Rep. 

923. 

If  a  passenger  is  injured  by  the  concur- 
rent negligence  of  two  parties,  one  of  whom 
at  the  lime  is  the  common  carrier,  both 
tort  fci'.sors  are  liab'c  jointly  and  severally. 
Ihtntin)^  v.  Hogsett,  48  Am.  ir*  Eng.  R.  Cas. 
87, 139  /'a.  St.  363,  21  Atl.  Rep.  31.— DlSTiN- 
GUiSHiNc;  Lockhait  7'.  Lichtentlialer.  46  Pa. 
St.  151  ;  Philadelphia  &  R.  R.  Co.  v.  Boyer, 
97  Pa.  St.  91.  Following  Dean  v.  Penn- 
sylvania R.  Co.,  129  Pa.  St.  $20.— Patterson 
V.  li'afias/t.  St.  L.  Sr*  P.  R.  Co.,  18  Atn.  &* 
Eng.  R.  Cas.  130,  54  Mich.^i,  19  A'.  W. 
Rep.  761. 

Plaintiff  sued  a  railway  company  for  per- 
sonal injuries  resulting  from  its  erecting 
an  "engineer-stake  "  in  a  street,  over  which 
plaintifT  fell.  Held,  that  the  wrong  com- 
plained of  was  the  personal  act  of  those  en- 
gaged in  running  the  line  for  the  proposed 
road,  and  in  law  the  act  of  those  by  whose 
authority  the  work  wa«s  done,  and  that 
plaintiff  had  the  right  to  sue  one  or  more  of 
them  alone.     Gudger  v.   Western  N.  C.  R. 

*As  to  mainiaining  joint  or  several  actions 
against  two  or  more  persons  ncKliRently  caus- 
ing injury,  see  note,  16  Am.  St.  Rei-.  250. 


I 


•4 


928 


PARTIES  TO   ACTIONS,  0-12. 


Co.,  19  Am.  &*  Eng.  R.  Cas.  144,  87  A'.  Car. 

325- 

PlaintiiT  shipped  goods  l)y  the  Graiu! 
Trunk  K,  Co.,  which  delivered  them  to  iho 
Great  VV.  R,  Co.,  which  carried  them  to  the 
consifjnee,  but  they  arrived  in  a  da;naged 
state.  Plaintiff,  being  in  doubt  as  to  which 
company  was  liable,  there  having  been  a 
separate  contract  with  cacii,  joined  both  as 
defendants.  He/il,  that  the  case  came  with- 
in rule  94,  and  that  plaintifT  had  a  right  to 
make  both  companies  parties.  Harvey  v. 
Grand  Trunk  A\  Co.,  7  On/  App.  715  ;  af- 
firming  9  Ont.  Pr.  80.— Revif.wino  Hon- 
duras R.  Co.  V.  Lefevre,  2  E.\.  U.  306. 

O.  Who  are  iiecessariv  part  tea  <lc- 
feiiduut.*— Where  the  action  is  by  a  stock- 
holder for  an  alleged  conversion  or  misap- 
propriation of  corporate  property,  the  cor- 
poration itself  is  a  necessary  party.  Cr eaves 
v.  Gotige,  52  How.  Pr.  (/V.  Y.)  58 ;  ajfirming 
49  Hovf.  Pr.  79 ;  affirmed  in  69  \'.  V.  1 54, 
54  Hovf.  Pr.  272.  — FoLl.owiNi;  Gardner 
V.  Pollard,  10  Bosw.  (N.  Y.)  67  Ques- 
tioning Crook  V.  Jewett,  12  How.  Pr.  19. 

A  complaint  alleged  the  depositing  of 
certain  bond&  with  defendant  for  the  pur- 
pose of  forming  a  new  company,  and  the 
giving  him  a  certificate  which  would  en- 
title him  to  stock  therein  ;  that  the  new 
company  was  never  formed,  and  in  certain 
litigation  which  followed  defendant  was  di- 
rected to  sell  the  bonds  "  to  create  a  fund 
for  the  costs  and  expenses  of  the  action, 
and  the  surplus  after  paying  such  costs  was 
thereby  directed  to  be  distributed  among 
the  actual  owners  of  the  trust  certificates  "  ; 
that  other  funds  were  used  to  pay  costs  and 
expenses,  and  plaintiff  demanded  the  pro- 
ceeds arising  from  the  sale  of  the  bonds. 
Held,  that  the  complaint  was  demurrable, 
as  it  failed  to  state  the  amount  of  costs  and 
expenses,  or  what  share  should  be  paid  out 
of  the  proceeds  of  the  bonds.  Carman  v. 
Farmers'  L,  <S-»  T.  Co.,  70  Hun  283,  53  A'.  Y. 
S.  R.  824,  24  A'.   Y.  Sitpp.  39. 

10.  Proper,  if  not  necessary,  par- 
ties.—  Where  preferred  stockholders  sue  to 
compel  thepaymentof  dividends,  and  charge 
that  funds  which  were  applicable  to  the  pay- 
ment of  such  dividends  have  been  diverted 
to  improvements  of  the  road,  the  common 
stockholders  are  not  necessary  but  may  be 

*  Necessary  parties  to  actions  to  enforce  stat- 
utory liability  of  stockholders  (or  corporate 
debts,  fee  note,  •?  Am.  St.  Rep.  857. 


proper  parlies  defendants.  Thompson  v. 
Eric  R.  Co.,  45  A'.  Y.  468.— EXPLAINED  IN 
Chase  v.  Vandt-rliilt,  62  N.  Y.  307. 

Where  time-checks  are  issued  by  sub- 
contractors to  laborers,  an  assignee  suing 
on  the  same  lu'ed  not  make  the  subcon- 
tractors defendants,  where  the  company  and 
the  contractors  are  joined,  and  the  facts 
show  that  the  debt  is  primarily  th.it  of  the 
contractors,  tian  Antonio  &>• .-/.  /'.  R.  Co. 
v.  Coekrill,  72  Te.v.  613,  10  .s'.  W.  Rep.  702. 

In  a  proceeding  on  the  part  of  iIk;  state 
to  forfeit  the  charter  of  ;i  railroad  company 
on  account  of  a  sale  of  its  corporate  fran- 
chises, rights,  and  privileges  to  a  r.iilway 
company  chartered  by  another  stal<'.  the 
purchasing  compauy  is  not  a  necessary 
party.  East  Line  &'  R.  R,  R.  Co,  v.  .State, 
40  A.m.  <&-•  Efg.  R.  Cas.  574,  75  Tex.  434,  12 
S.  IV.  Rep.  090. 

Suit  for  land  over  which  a  railroad  was 
constri'.cted  was  brought  by  the  owner. 
Pending  the  suit  the  road  was  placed  in  the 
handsi  of  receivers,  who  were  made  parties. 
Held,  that  they  are  prope  if  not  necessary 
parties.  San  Antonio  &'  A.  J'.  R.  Co.  v. 
Rufiy.So  Tex.  172    15  .V.  W.  Rep.  1040. 

1 1.  Improper  partie.s  defendant.— 
It  is  well  settled  that  a  receiver  is  not  per- 
sonally liable  for  a  contract  made  while  in 
office ;  so  he  is  not  a  necessary  party  after 
his  discharge  to  an  action  ba^ed  upon  aeon- 
tract  made  by  him  while  receiver  agreeing 
to  give  a  rebate.  Bayles  v.  Kansas  Pat.  R. 
Co.,  40  Am.  &•  Etig.  R.  Cas.  42,  13  Colo.  181, 
5  L.  R.  A.  480,  2  Int.  Com.  Rep.  643,  22 
Pac.  Rep.  341. 

When  the  corporation  itself  is  made  a  de- 
fendant, it  is  improper  to  add  the  trustees 
or  directors  as  parties  when  no  personal 
claim  or  judgment  is  asked  against  them. 
Allen  V,  New  Jersey  Southern  R.  Co. ,  49 
Hmu.  Pr.  {N.  K.)  14. 

Where  the  superintendent  of  a  road  is 
merely  holding  possession  under  mortgage 
trustees  for  the  benefit  of  creditors,  and 
does  not  claim  any  possession  or  control  in 
his  own  right,  and  docs  not  cUiim  tci»have 
anything  to  do  with  the  agr°ement  under 
which  possession  was  obtained,  he  is  not  a 
proper  party  to  a  proceeding  to  recover 
possession  of  the  road.  Ogdensburgh  iS-  C. 
R.  Co.  v.  Vermont  <&*  C.  R.  Co.,  16  AM.  Pr. 
N.  S.  (N.  Y.)  249;  affirmed  in  4  Hun  712. 

12.  Mi^foinder  ot  delendantM.— 
Where  an  action  is  brought  against  a  railroad 
corporation  and  its  conductor  jointly  for  an 


PARTIES  TO   ACTIONS,  13-16. 


939 


hompson  v. 

LAINF.D   IN 

7. 

.'(i  by  suu- 
ifjiiee  suing 
lie  sul)con- 
iinpnny  and 
I  the  facts 
tli:it  i)f  the 
.  /'.  /i'.  Co. 
.  /u-/>.  702. 
>f  ilic  state 
(I  company 
orate  fran- 
>  a  r.iilway 
'  stale,  the 
necessary 
Co.  V.  S/a/e. 
n.r.  434,  12 

ailroad  was 
the  owner, 
laced  in  the 
ade  parties. 
)t  necessary 
".  A'.  Co.  V. 
'.  1040. 
eiidniit.— 

is  not  per- 
de  while  in 

party  after 

uponacon- 
er  agreeing 
tsas  /'ill.  A'. 

3  Co/o.  181, 
iV/».    643.  22 

I  made  ade- 
the  trustees 
10  personal 
;ainst  tlicm. 
A'.   Co.,  49 

>f  a  road  is 
!r  mortgajje 
ditors,  and 
tr  control  in 
lim  tikhave 
ment  under 
,  he  is  not  a 

to  recover 
6urj[A  iS-  C, 
16  'A/'f>.  Pr. 

Hun  712. 
'iidaiitH.— 
St  a  railroaJ 
lintlv  for  an 


assault  committed  by  the  latter  on  a  passen- 
ger, and  a  verdict  is  returned  ag.inisl  the 
corporation,  and  in  favor  of  the  conductor, 
the  joinder  of  <lefcndaiits  is  no  (ground  of 
exceptions  by  the  corporation.  .Moore  v. 
I'itchhurt:;  A".  Corp.,  4  (/'/./r  (iJA»w.)  465. — 
Fi)M.()WKi)  in  Hcweit  v.  Swift,  3  Allen 
(Mass.)  420;  Hiokaw  v.  New  Jersey  K.  & 
T.  Co..  32  N.  J.  I..  32S. 

The  complaint  was  against  five  dcfond- 
ai.ts  as  common  cariiers,  and  the  proof 
tended  to  estahlisli  .1  cause  of  iictionaj^ainst 
two  of  them,  and  there  was  no  proof  what- 
ever that  the  other  tlirre  were  liable  j(<intlv 
or  otherwise.  ///■/</,  that  although  plaintilT 
had  joined  with  the  two  who  were  liable, 
others  against  whom  no  liability  was  shown, 
it  was  not  i'rror  in  the  judge,  upon  the 
request  of  Me  two.  to  refuse  to  direct  a 
verdict,  or  order  juili,'ment  in  their  favor. 
.Mcintosh  V.  Kiis(t;ii,  28  .\'.  J'.  169. 

I'laintitT  sued  a  construction  Cv)mpanyfor 
excavating  on  land  near  his,  whereby  the 
tides  weie  allowed  to  come  in  ind  injure 
plaintiff's  land.  Afterwards  he  fiU;d  a  sup- 
plemental petition  allegmg  that  a  railroad 
company  had  succeeded  to  the  property  of 
the  construction  company  and  that  both  to- 
gether were  continuing  the  excavations, 
and  asked  tiiat  the  milroad  company  be 
m.ide  a  defendant.  Held,  that  the  railroad 
company  would  not  be  liable  for  the  past 
acts  of  the  construction  company  simi)ly 
because  it  acquired  its  i>roperty.  The  ac- 
quisition of  such  property  would  not  be  a 
ratification  by  the  railroad  company  of  the 
previous  wrongs  of  the  construction  com- 
pany so  as  to  make  the  former  liable,  and 
the  supplemental  petition  was  demurrable 
for  a  misjoinder  of  parties.  Afextcan  Xat. 
Cons/r.  Co.  v.  .MiMlei^^t^e,  75  Tex.  634,  13  S. 
W.  Hep.  257. 

Itt.  N«»ii-ioiiid(>r  of  dol'ciidaiitN.— 
Under  the  Missouri  statute  requiring  rail- 
road companies  to  erect  waiting  rooms 
where  their  roads  cross  each  other,  and 
tixing  a  penalty  for  a  violation  of  the  stat- 
ute, each  company  failing  is  separately  liable 
for  the  penalty,  and  when  one  is  sued  it 
cannot  set  up  a  defect  of  parties  in  that  the 
other  company  was  not  joined.  Slate  v. 
A',ins,ix  Cily  It.  S.  &*  G.  A\  Co..  32  J-eii. 
A'l-p.  722. 

14.    IlriiiKiiit;    in    iivw    parties.— 

Where  suit  is  brought  for  injuries  by  reason 

of  a  negligent  act  of  defendant,  defendant 

cannot,   by  setting   up  in    his  answer  that 

6  D.  R.  D.— 59 


there  arc,  in  relation  to  such  alleged  wrong- 
ful act,  other  joint  tortfeasors,  compel 
plaintiff  to  make  them  parties.  Hoosie'r 
Stone  Co.  v.  McCain,  133  Ind.  231,  31  X.  E. 
A',/.  956. 

In  a  suit  by  heirs  to  recover  damages  for 
injury  to  land  the  defendant  may,  by  proper 
plea,  have  the  father,  in  whom  is  vested  a 
life  estate  to  one  third  of  the  pro|)erty, 
made  a  party.  Faihng  in  this,  he  may  by 
instruction  limit  the  lecuveryto  the  iiueii'st 
of  the  mmors.  ll  the  plaintiff  be  the  father 
of  the  minors,  and  he  alleges  ownership  in 
them,  he  is  estopped  from  afterwards  re- 
covering danuiges  to  his  life  estate,  ami  a 
judgment  for  damages  to  the  entire  estate 
will  not  be  disturbed.  Ft.  Wort/t  &"  N. 
O.  A".  Co.  V.  I'earce,  75  Tex.  281,  12  .V.  W. 
Kep.  .S64. 

15.  HiibHtitiltioii.  — In  an  action  for 
personal  injuries  it  was  shown  by  verified 
petition  tiiat  after  the  commencement  of 
the  suit  the  then  flefendant  corporation, 
with  certain  other  raiiioad  corporations,  !iau 
<:onsolidated  their  respective  rights  and 
franchises,  and  had  formed  a  new  corpora- 
tion, which  had  succeeded  to  all  the  rights 
and  assumed  all  of  the  liabilities  of  all  the 
original  corporations,  including  the  liabili- 
ties for  the  appellee's  cause  of  action.  Held, 
that  it  was  proper  to  substitute  the  consoli- 
dated corporation  in  place  of  the  orig.nal 
defendant.  Louiwille.  E.  c^  St.  L.  Con.  R. 
Co.  v.  Summers,  131  Ind.  241,  30  .^V.  E.  Kep. 

873- 

The  discharge  of  a  receiver,  and  the  res- 
toration of  the  property  to  the  control  of 
its  owner,  do  not  abate  an  action  against 
the  receiver.  The  owner  may  be  substi- 
tuted as  a  partv,  and  the  action  prosecuted 
against  him.  linriun  v.  Gay,  42  .////.  >S>»  Eng. 
A'.  Cas.  23,  76  /'e.v.  444,  13  .S".  W.  Kep.  472. 

A  suit  for  damages  caused  by  neglig<>nce 
brought  against  a  nceiver,  within  twelve 
months  after  the  injury,  may  be  prosecuted 
against  the  company  by  making  it  a  party 
to  the  suit  after  the  discharge  of  the  re- 
ceiver. Such  proceedings  constitute  but 
one  suit.  No  new  cause  of  action  is  alleged 
in  making  the  company  a  party.  Texas  &* 
P.  K.  Co.  V.  Cof'istor/.;  83  Tex.  537,  18  S.  II'. 
Kep.  946. 

10.  01>J<>ftioiiM  for  defV^et  of  parties. 
— In  an  action  .-.i  delicto  the  non-ioinder  of 
a  party  who  ought  to  have  been  niadc  plain- 
tiff can  be  taken  advantage  of  only  by  plea 
in  abatement,  or  by  way  t^'  apport*.  unient  oi 


^ 

I 


ft 

•4 


Q 

S 


f 


\ 


980 


PARTIES  TO   ACTIONS,  17-20. 


dani.iRCS.  Cooper  v.  Grand  Trunk  R.  Co., 
49  .\'.  //.  209. 

An  objection  to  the  non-joinder  of  a  hus- 
baiul  as  a  plaintiff  in  an  action  by  a  wife  to 
recover  for  injuries  to  her  person  is  waived 
unless  raised  by  deinurret  or  answer.  It 
cannot  f)e  taken  advantage  of  on  motion  for 
nonsuit,  /la/itwin  v.  Siuomi St.  Cable  A'.  Co., 
77  C'li/.  300,  19  Ptic.  /\e/>.  644 

In  such  ;iction  the  wife  is  a  necessary 
party  plaintiff,  and  no  recovi'ry  can  l)e  liad 
unless  slie  is  joined.  Balihvin  v.  Second 
St.  Cable  A'.  Co.,  77  Cal.  390, 19  I'ac.  AV/.644. 

II    INEQUITY. 

17.  Who  may  hih',  (j«'"<*«*"tly'— The 

holder  of  a  portion  of  the  bonds  secured  by 
(lecil  of  trust  niven  by  a  railway  company 
in  order  to  |)r()tect  the  niortgajned  property 
or  fund  securing;  his  and  others'  i>(>nds  may 
file  a  bill  in  his  own  behalf  and  in  behalf  of 
all  other  holders  of  such  bonds,  his  interest 
and  that  of  the  others  bein^  identical  .t;id 
inseparable.      Carter  v.  Kodewald,   108  ///. 

35'- 

A  township  caunot  maintain  an  action  to 

enjoin  the  collection  of  an  illegal  tax  levied 
on  ta.xable  property  belonj^iny  to  private  in- 
dividuals of  such  township.  Such  an  ac- 
tion can  be  maintained  only  by  the  individ- 
uals themselves.  Center  Tf>.  v.  Hunt,  lo 
Kan.  430. 

Wlure  a  suit  is  necessary  to  obtain  from 
the  directors  or  olhcers  of  an  incorporated 
Company  an  account  of  their  dcalinj^s  with 
tile  company,  or  to  recover  from  them  or 
any  other  person  property  or  money  of  the 
corporation,  the  only  proi)ei  pl.iiniilV  is  the 
conip.iny  itself.  MeMiirr.iy  v.  Northern  R. 
Co.,  2:  Cn-iiiil's  CIi.  (C.  C. )  476. 

IH.  All  pai'tii's  ill  iiitt>r<'st  to  l>i> 
joiii«><l  citlu'i'  us  |ilaiii(ill>i  or  4|<>IV>ihI- 
aiiti*— Under  N.  V.  Code  Civ.  I'ii>.  ff.i  446, 
447,  and  452,  all  persons  iiitertsU'il  in  the 
siiDJect-matier  'if  ,1  suit  in  ecpiity  must  be 
made  parties,  citlier  as  plaintiffs  or  defend- 
ants, in  order  to  prevent  a  multipliciiv  of 
suns,  and  l"  seciirc  a  linal  detennmalion  of 
♦  Iicir  rights.  I'm  lur  v.  Midland  R.  Co.,  i 
.\ .   r  .V.  A'.  219. 

In  tlie  forerlosnre  of  a  >lee(l  of  trust  the 
Ci sill IX  i;iie  hustiiil  as  well  as  the  trustee 
shoulii  I'C  matle  |)ariies.  Mm  win  re  the 
beneticiarics  arc  very  numerous,  mwl  they 
arv'  rei>reseiited  by  their  tnisli-c,  tlicv  need 
ti'il  all  be  niadi'  parlies;  the  impiaci  n  .ibility 
«j(  making  all  the  pcr-ons  interested  partii<« 


is  a  sufTicient  ground  for  dispensing  with 
them.  Chicago  &^  G.  W.  R.  Land  Co.  v. 
Reck,  1 1 2  ///,  408. 

A  lease  in  which  several  railroads  are  in- 
teresti'd  will  not  be  declared  altogether  void 
as  against  roads  not  made  parties  to  the 
suit  Dinsmorc  v.  Atlantic  &*  /'.  R.  Co..  46 
//07t>.  J'r.  (.y.    )',)  193. 

A  committee  was  appointed  to  reorgan- 
ize a  railroad  and  to  issue  new  bonds  in- 
stead of  old  ones,  Plaintiff  held  certain 
bonds,  and  by  direction  of  the  committee 
he  deposited  them  with  a  trust  company, 
but  later,  when  lie  applied  for  new  bonds,  he 
was  refused  on  the  4;round  that  a  third  per- 
son claimed  the  bonds.  Held,  that  the  re- 
organized company,  the  trust  company,  and 
such  third  person  were  all  necessary  parties 
to  an  action  to  enforce  the  trust  in  order  to 
save  a  multiplicity  of  suits.  Turner  v. 
Midland  R.  Co.,  1  A'.    V.  .S".  A'.  219. 

Such  third  person  was  a  proper  party  both 
because  he  claimed  an  interest  in  the  bonds 
and  because  the  company  was  entitled  to 
protection  as  against  the  two  claimants. 
Turner  v.  .Midland  R.  Co.,  1  A'.  Y.  S.  R. 
219. 

10.  •l«»iiHler  ot  luirticM  coniplaiii- 
aiit.  The  owners  of  separate  lots  abutting 
on  a  s.i-.-ct  may  join  in  a  bill  to  restrain  the 
construe  ion  of  a  street  railway  therein 
without  payment  of  the  damages  thereby 
sustained,  which  damages  are  not  recover- 
able in  such  suit,  but  in  condemnation  pro- 
ceedings. Taylor  v.  Jiay  City  St.  R.  Co.,  43 
,////.  .S-"  ling.  R.  Cas.  335,  80  Mich.  77.  45 
.\-.   11:  A\/>.  335- 

One  of  several  joint  contractors  having 
diefl  during  the  progress  of  work,  a  bill  was 
hied  b\  the  surviv(jrs  to  enforce  a  claim 
under  ''xc  contract,  lle^d,  that  the  person. il 
rei)resentatives  of  the  deceased  [)arliicr 
should  have  been  made  parlies,  the  rule 
respecting  the  rij^lits  of  surviving  |)aitneis 
to  sue  alone  not  applying  to  suits  in  equity. 
Syke\  V.  lirockville  &*  O.  R.  Co.,  g  Grant's 
Ch.  iU.  C.)  <). 

20.  >li.sioiiMl<'r  oi' 4-oiii|ilaiiiaiit.s.— 
Where  a  re(  eivir  brings  suit  to  compel  the 
pa\ineni  of  one  half  of  one  per  cent,  on 
bonds  i>sncil  by  a  '  ompany,  ii.s  provided  by 
the  riorida  IniDrov  i  meiil  .Act  of  J. 111.  6, 
i.Sjij,  boniJIioMers  should  not  be  joined  as 
jilaintitTs.  Doci^iiett  w  llcrida  Laud  Co.,  <)n 
(•.S.72. 

A  portion  of  the  stockholders  cannot  join 
with  their  company  in  .1   bill  to  redeem  the 


PARTIES  TO  ACTIONS,  21. 


081 


ensing  with 
Land  Co.  v. 

oads  are  in- 
)geilier  void 
rlics  to  tlie 
".  K.  Co.^t 

to  reorgan- 

:w  bonrls  in- 

iclri   certain 

;  coniiiiittee 

St  company, 

w  tx^nds,  lie 

a  third  per- 

ihat  tiic  re» 

jinpany,  and 

ssary  panics 

,t  in  order  to 

Turner  v. 

'9- 
er  party  both 

n  the  bonds 
3  entitled  to 
J    claimants. 

A',  y.  S.  A\ 

com  plain- 
lots  abutting 
)  restrain  the 
Iway  therein 
ages  thereby 
not  recover- 
in  nation  pro- 
S/.  A\  Co.,  43 
Aftc/i.  77.  45 

iciors  having 
•rk,  a  bill  was 
force  a  claim 
the  |)ers()ii.il 
used  partner 
tics,  the  rule 
fing  |)ariiicrs 
lits  in  c(iiiily. 
Jo.,  9  (iront  '.v 

ilaiiiaiits.— 

to  ((imjiul  the 

per  cent,  on 

i  provided  iiy 

ct  of  J. in.  (>. 

be  joined  as 

/.and  Co.,  <)') 

Tscann')t  join 
to  redeem  the 


road  from  a  mortgage  where  tliere  is  no 
allegation  that  the  company  has  been  guilty 
of  any  violation  ot  its  trust.  Kennebec  <S- 
P.  Ji.  Co.  V.  Portland  &*  A'.  A".  Co.,  54  Me. 

173- 

Where  the  fee  of  a  street  to  the  centre 
thereof  is  vested  in  the  abutting  proprietors, 
the  interest  of  each  proprietor  in  the  same 
is  separate  and  individual,  and  a  complaint 
in  wiiicli  several  proprietors  are  joined  as 
plaintitTs,  and  which  seeks  to  enjoin  the 
construction  of  a  railroad  upon  such  street 
on  the  ground  that  it  has  not  legally  ac- 
quired the  right  to  do  so,  nor  made  com- 
pensation therefor,  is  open  to  demurrer  for 
misjoinder  of  parties.  Fogg  v.  Nevada  C. 
O.  A'.  Co.,  43  Aw.  &>•  Eng.  A'.  Cas.  105,  20 
AV?'.  429,  23  Pac.  Rep.  840.— Following 
Hinchman  v.  Paterson  Horse  R.  Co.,  17  N, 
J.  Eq.  83. 

2 1 .  Necessary  parties  defciidaiit.— 
Where  mortgage  trustees  file  a  bill  against 
a  corporation  mortgagor  to  foVecIose,  none 
of  the  bondholders  secured  by  the  mortgage 
need  be  made  parlies.  Shaw  v.  Norfolk 
County  K.  Co.,  5  Cray  {.Mass.)  162.— Ah- 
PR(JVED  IN  Hall  V.  Sullivan  R.  Co.,  Brun. 
C(j1.  Cas.  (U.  S.)  613.  QuoTKD  iN  Sac- 
ramento &  P.  R.  Co.  7'.  San  Francisco 
Superior  Court,  55  Cal.  453. 

Where  stockholders  sue  to  have  a  fore- 
closure sale  of  the  corporate  property  set 
aside,  and  the  mortgage  declared  null  and 
void,  and  the  property  restored  to  the  com- 
pany, the  company  is  a  necessary  party. 
Siiwuilv.  Holladay,  U'ooht'.  {U.  S.)  400. 

Where  a  com|)any  executes  a  mortg.'ige  to 
a  trust  company  to  sojure  its  bonds,  and 
places  the  bonds  in  the  hands  of  the  trust 
company  to  be  used  in  the  construction  of 
the  road,  and  certain  stockholders  I'le  a  bill 
to  prevent  the  trust  company  from  deliver- 
iii,.j  the  bonds,  aiul  asking  that  they  be 
canceled,  tlie  trust  company  is  a  necessary 
party.  Mayer  v.  Ifenver,  T.  *5-  /•"/.  W.  A\ 
Co  ,41  Fed.  Rep.  723. 

Where  a  railroaii  company  d.iims,  under 
a  grant,  lanrl  which  ciriairi  individuals  are 
scekiiit;  t  >  pie-enipt,  and  t Ik?  company  files 
a  l)ill  t  ■  enjoin  the  United  Slates  land  com- 
mis-<ioiur  from  |)i>KX'eiling  to  take  proofs 
or  iM  complete  the  entry,  tlie  individuals 
seeUinu;  to  i)r''-empl  are  iiecessarv  parlies. 
SioDx  City  Z'-'  SI.  P  A'.  Co.  v.  United  .S/ates, 
34  /•■,',/.  A'e/>.  8  ^5. 

Wlu'ie  ii  aidliolilers  sue  for  an  accounting 
of    the   earnings  of  a  roaii,  and  i;  appears 


that  the  road  is  leased,  but  is  controlled  hy 
a  third  company,  and  the  relief  sought  in- 
cludes an  injunction  and  a  niscission  of  the 
lease,  all  three  of  the  companies  must  be 
made  defendants.  Port  Royal  Sr*  A.  R.  Co. 
v.  liranch,  78  Ga.  113. 

Where  property  owners  seek  to  restrain 
the  building  of  a  street  railroad  on  the 
ground  that  the  franchise  is  valuable,  and 
has  been  granted  by  the  city  without  suffi- 
cient consideration,  in  violation  of  its  char- 
ter, the  city  in  its  corporate  capacity  is  a 
necessary  party ;  and  the  officers  who,  it  is 
charged,  have  abused  their  power  in  grant- 
ing the  franchise,  should  be  made  parties 
also.  People  v.  Laiv,  34  Barb.  (N.  K.)  494, 
22  //o7i'.  Pr.  109. 

A  bill  to  enforce  the  lease  of  a  railroad 
Jiowed  that  the  lease  was  made  for  forty 
years,  but  that  the  lessee  in  turn  leased  its 
road  to  a  third  company  for  twenty  years, 
the  lessee  agreeing  to  assume  the  first  lease. 
It  is  charged  that  the  second  lease  had  ex- 
pired, and  that  the  second  lessee  refused  to 
pay  the  rent.  J/eld,  that  the  first  lessee 
should  be  made  a  party,  and.  the  fact  that  it 
is  no  longer  exercising  its  rights  and  fran- 
chises is  no  excuse.  Jessup  v.  Illinois  C.  Ji, 
Co.,  36  Fed.  Refi.  735. 

The  bondholders  are  necessary  parties  to 
a  suit  to  adjudge  void  a  mortgage,  and  the 
bonds  secured  thereby,  given  by  a  corpora- 
tion. Service  of  process  on  trustees  is  not 
sufficient  to  bind  them.  Appeal  of  Harris- 
burg  &*  F.  R.  Co.,  (/'(I.)  36  Am.  &*  Eng.  R. 
Cas.  249.   15  At  I.  Rep.  459. 

A  corporation  is  a  necessary  defendant 
to  a  i)ill  to  enforce  a  judgment  against  it 
by  compelling  contril)iilion  from  its  stock- 
holders. .  "  the  stockholders  are  likewise 
proper  parties,  if  they  apply  to  be  heard,  to 
the  end  that  each  may  be  assessed  his  equi- 
t.?l)le  share  only.  W'alshs,  Memphis,  C.  &* 
A'.  \y.  R.  Co.,  2  McCtary  (,U.  S.)  156.  6 
Fed.  Rep.  "nyj. 

Where  a  non-consenting  stockholder  files 
a  bill  lo  have  a  consolidation  of  his  cor|)o- 
raiion  with  others  declared  void,  and  fur- 
ther proceedings  under  the  consolidation 
enjoined,  the  presi(h'iit  and  din^ciors  of  the 
consoli(lat';d  company  are  necessary  de- 
feiid.ints.  Tyson  v.  Virginia  &•  T.  R.  Co., 
I  /In,: lies  {  U.  .V.)  80. 

Where  a  bill  seeks  to  recover  projierty  of 
a  railroad  company  from  the  hands  of  jiar- 
ties  who  are  accciiiitahle  tlierefor  to  the 
company,  and  seeks  to  have   the  property 


I 

It 

s 


4 


8 


932 


PARTIES  TO  ACTIONS,  22. 


f  ■ 


'^jtSVt! 


,.S:         V 


applied  to  the  satisfaction  of  a  judjjimeiit 
ii^jaiiisl  the  comi)any,  tiie  company  is  a  nec- 
essary party,  lirii^liivn  v.  l.uddington,  12 
lilatilif.  (  U.  S. )  237. 

*11.  l*ro|H'r  tlioiifrli  not  iic<*oNNary 
(IcIeiKliiiitN. — (I)  Federal  diCisions.  —  \ 
mortgage  trustee  is  not  a  necessary  party  to 
a  suit  in  equity  by  a  holder  of  the  income 
l)()nds  of  a  radroad  corporation,  ajjainst  it, 
to  have  the  amount  justly  tlue  for  interest 
on  the  bonds  ascertained  and  paid.  Sfiiea 
V.  Chicago  &^  K.  I.  A'.  Co.,  24  lUatclif.  ( U. 
S.)  280,  32  J-'ed.  Kep.  713.— Distinguishing 
Morgan  v.  Kajisas  Pac.  R.  Co.,  21  Hlatchf. 
134;  Barry  7'.  Missouri,  K.  &  T.  R.  Co.,  22 
Fed.  Rep.  631. 

Persons  or  corporations  interested  may 
be  made  parties,  especially  where  the  object 
of  the  bill  cannot  be  attained  without  seri- 
ously aflecting  the  interests  of  such  persons 
or  corporations.  Northern  Ind.  K.  Co.  v. 
Michigan  C.  /\\  Co.,  5  McLean  (U.  .V.)444. 

A  state  is  not  a  necessary  party  to  a  pro- 
ceeding to  foreclose  a  railroad  mortgage 
because  it  has  iiulorsed  the  bonds  secured 
by  the  mortgage.  Young  v.  Montgomery  Sf 
E.  li.  Co.,  2  Woods  (U.  S.)  606. 

Persons  belonging  to  a  class  represented 
in  the  suit,  such  as  mortgage  creditors  of  a 
railroad,  represented  by  the  trustees  of  the 
mortgage,  are  regarded  as  ^»<i.f/ parties,  and 
mav  be  lieard  on  petition.  Anderson  v. 
lacksonville,  P.  6^  M.  A'.  Co.,  2  lVoods{U. 
S.)  628.  — FoLi.owKU  IN  Fidelity  T.  &  S.  V. 
Co.  V.  Mobile  St.  R.  Co.,  53  Fed.  Rep.  850. 

in  a  bill  in  equity,  plamtifTs  alleged  that 
they  were  promoters  of  a  railroad  company  ; 
that  they  entered  into  a  contract  with  McC. 
&  Co.  for  the  construction  of  the  road,  un- 
der which  contract  they  conveyetl  to  McC. 
&  Co.  the  company's  franchises,  right  of  way, 
etc.,  in  consideration  of  which  McC.  &  Co. 
were  to  pay  plaintiffs  a  cash  consideration 
and  certain  stock  and  first  mortgage  bonds 
of  the  road  ;  that  McC.  &  Co.,  upon  obtain- 
ing control  of  all  the  capital  stock  and  prop- 
erty of  the  company,  proceeded  to  elect  a 
board  of  directors  composed  of  themselves 
and  others,  and,  without  attempting  to  con- 
struct the  road,  sold  out  the  whole  property 
to  defendant,  a  competing  company.  They 
alleged  further  that  the  competing  railroad 
tooktheproperty  with  full  knowledge  and  no- 
tice of  plaintiffs'  rights.  The  bill  prayed  that 
the  transaction  between  McC.  &  Co.  and  de- 
fendant might  be  held  void,  and  defendant 
declared    trustee    for    plaintiffs,    etc.,   but 


sought  no  alTirmativc  relief  against  McC,  & 
Co.  //eld,  that  McC.  it  Co.  were  not  indis- 
pensable parties,  l/ainillon  v.  Saiannah, 
/•'.  &>  W.  A'.  Co.,  52  Am.  i!~  A//-,'.  A'.  Cas.  130, 
i,<^)l'ed.  A'<'/.4i2.— DisiiNCiJisiiiNC  Central 
R.  Co.  V,  Mills,  113  U,  S.  256,  5  Sup.  Ct. 
Rep.  456. 

(2)  State  decisions. — In  a  bill  to  enjoin  a 
telegraph  company  from  erecting  its  line 
along  the  right  of  way  of  a  railroail,  another 
telegraph  company  having  a  contract  with 
the  road  for  the  exclusive  use  of  such  right 
of  way  to  maintain  and  operate  its  own  line 
of  telegraph  is  a  proper  party  to  the  extent 
of  its  interest.  Southwestern  A'.  Co.\.  Soutlt- 
ern  &•  A.  Tel.  Co.,  46  (Ja.  43. 

In  an  action  against  a  trustee  to  set  aside 
a  trust  rleed  made  by  a  company,  the  cestuis 
que  trustent  are  not  necessary  parties,  but  if 
facts  exist  to  justify  it,  they  may,  in  the  dis- 
cretion of  the  court,  be  admitted  to  defend. 
Win  slow  V.  Minnesota  &»  /'.  A'.  Co.,  4  Minn. 
313  (.Gil.  230). 

When  the  title  to  bonds,  claimed  by  both 
parties  to  the  bill  by  different  assignments 
from  the  same  person  making  no  claim  to 
the  bonds,  is  in  dispute,  it  is  not  necessary 
to  join  the  assignor  as  a  party.  J/ale  v. 
A'ashua  6«»  L.  A'.  Co.,  60  A'.  //.  333. 

Where  a  turnout  has  been  constructed  at 
the  request  of  the  owners  of  a  warehouse  to 
connect  a  railroad  therewith,  the  owners 
are  necessary  parties  to  a  suit  to  compel  the 
removal  of  the  turnout.  Philadelphia  v, 
/iiver  /""ront  A'.  Co.,  43  Am.  &•  /ing.  A'.  Cas. 
'67,  133  /'a.  St.  134.  19  All.  /iep.  356. 

Under  N.  V.  Code  of  Civ.  Pro.  ^§  446, 
447,  and 452,  requiring  all  persons  interested 
in  the  subject-matter  of  suits  f)  be  made 
parties,  where  a  party  sues  to  compel  a  rail- 
road company  to  deliver  him  certain  bonds 
of  which  he  claims  to  be  the  owner,  it  is 
proper  to  make  a  third  party  who  holds  a 
certificate  and  claims  to  be  entitled  to  the 
bonds  a  defendant.  Turner  v.  Conant,  18 
Abb.  N.  Cas.  (A'.   Y.)  160. 

A  railroad  company  assigned  its  prop- 
erty to  a  trustee  as  preliminary  steps  to  a 
complete  sale  and  transfer  to  a  new  com- 
pany, the  consideration  being,  inter  alia,  the 
payment  of  the  debts  of  the  old  company. 
A  few  days  after  the  assignment  plainiifl 
obtained  a  judgment  against  the  company. 
Some  twelve  years  afterward  suit  was  brought 
against  the  trustees  and  the  new  company 
to  enforce  the  judgment.  The  trustees 
made  no  answer,  but  the  company  filed  an 


^TST^ 


St  McC.  & 
not  indis- 
SttTitnnafi, 
V.  itis.  130, 
\<!  Co  lit  nil 
5  Sup.  Ct, 

n  enjoin  u 
)|T  its  line 
id,  another 
iitract  with 
sucli  li^ht 
s  own  line 
the  extent 
o.  V.  Soiith- 

o  set  aside 
the  fistiiis 

rties,  hut  if 
in  tiie  dis- 
to  defend. 

■<».,  4  Minn. 

ed  by  both 
ssignnicnts 

0  claim  to 
:  necessary 

Hale  V. 

structed  at 
iiiehouse  to 
the  owners 
compel  the 
luielphiii  V. 
.ng.  R.  Ciis. 

356. 

'ro.  g§  446, 
s  interested 
:')  be  made 
mpcl  a  rail- 
rtain  bonds 
jwner,  it  is 
vho  holds  a 
tied  to  the 
ConanI,  18 

d  its  prop- 
steps  to  a 

1  new  com- 
ler  tt/i'ii,  the 
d  company. 
;nt  plaintid 
;  company, 
.vas  brought 
w  company 
ic  trustees 
iny  filed  an 


PARTIES  TO   ACTIONS,  23,  24. 


933 


answer  charging,  in  general  terms,  that  the 
debts  of  the  old  company  of  the  same  class 
of  plaintiff's  exceeded  its  assets,  and  that 
plaintiff  could  not  be  entitled  to  more  than 
a  /r<>  rafa  distribution.  //</</,  tiiat  from 
tiie  lapse  of  time  a  presumption  arose  that 
:dl  the  other  debts  had  been  satisfied,  and 
lIuMcfore  the  single  debt  of  plainlitf  might 
l)e  enforced  without  attempting  to  make 
dtiuT  possible  creditors  parties.  Gaheston, 
11.  6-  .v.  A.  A'.  Co.  V.  lUiller,  9  Am.^  Eng. 
K.  Cas.  552,  56  Ti'x.  506.  —  Kf.vif.wino 
Galveston,  H.  &  S.  A.  K.  Co.  v.  McDonald', 
53  Tex.  JIG.— Foi.l.oWKM  IN  Galveston,  H.& 
S.  A.  K.  Co.  V.  Hume,  jy  Tex.  47. 

In  an  action  by  a  preference  shareholder 
to  restrain  a  railway  company  from  paying 
a  dividend  on  the  common  stock  before 
paying  an  arrear  of  dividend  on  the  prefer- 
ence sliares,  it  is  sutficient  as  a  matter  of 
]>le<iding  to  name  one  of  the  holders  of  the 
common  stock  to  re|)resent  tin;  common  in- 
terest of  his  associates.  Smith  v.  Cork  Is* 
li.  A\  Co.,  5  /r.  F.q.  65. 

A  railway  com|Kiny  paid  to  the  executors 
of  a  tenant  for  life  the  sum  iiayable  for  the 
fee  simple  of  lands  taken  by  the  company 
for  tlie  purposes  of  their  road,  and  sub- 
sequently the  remainderman  filed  a  bill 
against  the  company  and  the  representa- 
tiv(!s  of  the  tenant  for  life  seeking  to  obtain 
payment  from  the  company  of  the  pr  ipor- 
tion  of  purchase  money  payable  to  the  re- 
mainderman. Held,  that  the  e.xecutors 
were  properly  made  parties  with  a  view  to 
the  company  obtaining  relief  over  against 
them  in  the  event  of  the  company  being 
coni|)ellcd  to  make  good  the  money  in  the 
fust  instance.  OwUon  v.  Grand  Trunk  A'. 
Co.,  28  Gr.in/  's  Cli.  (  T.  f.)  431. 

tiit.  liiipro|M'r  |iarti<*M  ilt>f«'iMlaiit.— 
Wlien  a  bill  is  filed  by  a  crt-ditor  against  a 
<:i>iporation, its  directors  and  ofrucrs,  against 
wiioiii  no  relief  is  prayed,  and  against  wiioni 
III)  fraud,  conspiracy,  or  breach  of  trust  is 
ciuiiged,  cannot  be  joined  as  defendants 
lor  the  sole  purpose  of  discovery.  .\'orwood 
V.  Mt'iiifiliis  S'^  C.  l\.  Co.,  72  ///•/.  563. 

Ill  a  I'Diiiest  as  to  the  riijlit  and  authority 
of  one  company  to  lease  the  rfiafi  c)f  anotiier, 
the  state,  not  i)eiiig  a  sinckholdcr  in  either 
coinpaiiy,  is  not  a  proper  p.irty  to  a  bill  to 
enjoin  the  e.xeriition  o(  tln'  lease;  nor  is  a 
<iiy  which  only  sues  on  Ix-half  of  its  citi- 
zens a  proper  party  to  the  bill.  Cnlral  A', 
c**  //.  Co.  v.  Mayor,  etc.,  of  Macon,  43  Ga. 
605. 


Where  a  corporation  issues  a  certificate 
of  shares  in  its  capital  stock  upon  the  sur- 
render of  a  former  certificate  for  the  same, 
accompanied  by  a  transfer  under  a  forged 
power  of  attorney,  neither  the  person  acting 
under  such  power,  nor  the  person  to  whom 
the  certificate  is  issued,  is  a  necessary  party 
to  a  bill  by  the  true  owner  against  the  cor- 
poration to  compel  it  to  procure  a  like 
number  of  shares  of  its  capital  stock,  to  re- 
cord and  issue  to  him  a  certificate  thereof, 
and  to  pay  him  the  dividends  thereon. 
Pratt  v.  lioston  <S-» .,-/.  A'.  Co.,  1 26  Mass.  443. 

A  corporation  deposited  certain  securities 
with  agents  for  the  purpose  of  sale  or  as 
the  basis  of  a  loan.  The  agents  disposed 
of  the  securities  to  a  number  of  different 
persons,  in  violation  of  their  trust,  the  trans- 
fers  beii  g  by  different  transactions  and  the 
holders  in  no  way  connected.  Held,  that  it 
was  error  to  unite  all  of  the  transferees  as 
defendants  in  an  action  by  the  company 
seeking  to  have  the  transfers  set  aside.  The 
proper  prcxeeding  was  a  suit  against  each 
transferee,  making  the  agents  defendants  in 
all.  Lexington  &»  li.  S.  K,  Co.  v.  Goodman, 
5  A/>6.  Pr.  (N.  V.)  493,  25  Barli.  469,  15 
Him.  Pr.  85. 

Where  a  corporation  sues  to  have  >:ertain 
shares  of  spurious  stock  which  its  officers 
had  issued  declared  void,  the  holders  of 
genuine  stock  are  not  proper  parties.  New 
York  &>  N.  H.  K.  Co.  v.  Schuyler,  8  Abb. 
Pr.  (N.   Y.)  239. 

24.  Ilriiiginiir  iii  new  parties.— 
After  final  decree  in  a  foreclosure  suit  by 
a  mortgagee  against  the  corporation,  the 
court  will  not  give  a  stockholder  leave  to 
become  a  defendant,  and  allow  him  to 
make  answer  and  defense,  bat  he  might  be 
allowed  to  be  made  a  party  for  the  purpose 
of  allowing  him  to  prosecute  an  appeal.  Ex 
parte  Bro^wn,  58  Ala.  536,  21  Am.  l\y.  Rep. 
101. 

A  complainant  cannot  be  compelled  to 
add  new  parties  to  his  bill  if  he  chooses  to 
take  the  responsibility  of  their  not  being 
made  [jarties.  Searles  v.  Jaiksonville,  P.  &* 
M.  R.  Co.,  2  Woods  (U.  S.)  621. 

Where  the  liolrler  of  one  or  more  of  a 
series  of  railroad  mortgage  bonds  institutes 
foierlosure  proceedings,  he  is  bound  to  act 
for  all  standing  in  a  similar  position,  and 
not  finly  to  permit  other  bondholders  to  in- 
tervene, but  to  see  that  their  rights  arc  pro- 
tected ill  the  final  decree.  Xe^o  (>r/eans 
Pac.  R.  Co.  v.  Parker,  143  V,  S.  42,  12  Sup, 


§ 

s 


934 


PARTIES  TO   ACTIONS,  25.— PARTITION,  1-5. 


^9Fi' 


C/.  AV/.  364.— Quoting  Naslivillc  &  D.  R. 
Co.  7'.  Orr,  18  Wall.  (U.  S.)  471. 

25.  Itiilc  iiM  to  partirs  livyoiul  tlin 
JurlMilit'tloii.— Plainlilf  compaeiy  sued  in 
a  federal  court  in  Miclii){an  to  restrain  dc- 
feiKlant  con>|)any,  a  Mi<liinaii  corporation, 
from  building  and  operating  a  road  in  In- 
diana, under  a  charter  granterl  to  a  company 
in  that  state,  on  the  ground  that  it  would 
interfere  with  plaintiff's  road,  /Mi/,  that 
the  Indiana  company  owning  the  charter 
was  a  necessary  i»arty.  In  such  c.isc  tl>c 
Act  of  Congress  of  1839,  providing  for  the 
nonjoinder  of  parties  who  arc  not  inhabi- 
tants of  the  district,  does  not  apply.  Xorf/i- 
frn  /»</.  A'.  Co.  v.  A/ti-/i/i;ti»  C.  A'.  Co. ,  1 5 
//(W.  {C/.  S.)  233. 

Act  of  Congress  1889  (5  St.  at  L.  p.  34,  § 
I )  and  rule  47  for  the  equity  practice  for  the 
circuit  court,  passed  in  pursuance  thereof, 
relieve  the  plaintiff  in  equity  from  making 
persons  in  interest  parties  when  the  effect 
of  their  joinder  would  oust  the  court  of 
jurisdictim.  But  notwithstanding  the  above 
act  the  court  can  make  no  decree  between 
the  parties  before  the  court  which  involves 
the  right  of  such  omitted  |)arty.  //txmilton 
V.  SavannaA,  /•'.  &*  //'.  A'.  Co.,  52  //w.  &' 
fCn^.  A'.  Cas.  130,49  Fei/.  AV/.  412.  Sec  also 
/irigham  v.  Ludiiinglon,  i  2  /Hatch/.  ( U.  S.) 
237. 


PARTITION. 

1.  Who  may  sue.  —  A  railroad  com- 
pany owned  an  undivided  half  interest  in  a 
lot  in  fee,  and  appropriated  a  life  estate  in 
tlie  otiicr  half,  and  held  it  during  the  life 
estate.  //»/</,  that  ilie  owners  of  the  re- 
mainder, who  were  heirs  of  ilie  life  tenant, 
might  maintiiin  a  bill  in  ei|uity  for  partition, 
and  they  were  not  restricted  to  the  special 
remedy  at  l.iw  provided  by  Vt.  Gen.  St. 
447.  Atist/n  V.  I\iittanii  l\.  Co.,  17  /■>(/,  /\</>. 
466,  21  /iliUchf.  (U.  .S',)  35«.  — DisriNctJisH- 
INt;  Austin  7>.  Ruiland  N.  Co.,  45  Vt.  215; 
McAulay  v.  Western  Vt.  U.  Co.,  33  Vt.  31 1  ; 
Knapp  7'.  McAuley,  39  Vt.  27^;  Troy  &  H. 
R.  Co.  V.  Potter,  42  Vt.  265. 

.\  raiiroiid  corporation  having  purchased 
from  another  company  an  iiiulividcd  inii-r- 
cst  in  liie  hitter's  railrf)ad,  under  Ohio  Act 
of  April  7,  1863,  in  relation  to  insolvent 
railroad  ronipanies,  which  authorizes  such 
sale  iiiuier  certain  coiiditintis,  if  tlie  s:(me 
can  lie  made  without  impairing  the  useful- 
ness of  the  road  to  the  veiidnr   <iin|i.iny, 


whereby  a  tenancy  in  common  is  created 
between  the  parties,  cannot  compel  parti- 
tion of  the  common  property  either  under 
the  statute  in  relation  to  partition  or  in 
equity.  /'itlsburi,',  C.  &'  St.  /..  A'.  Co.  v. 
Central  Ohio  li.  Co.,  9  Am.  &*  /Ing.  A'.  Cas. 
535,  38  Ohio  St.  614. 

2.  Staying  otliur  |>rov(>(Mliii|;H.— 
Proceedings  under  a  petition  by  some  of 
the  co-tenants  for  compensation  for  a  right 
of  way  over  the  common  projierty  will  be 
suspended  until  partition  can  be  had  un- 
der an  action  instituted  for  that  purpose. 
Charleston,  C.  &*  C.  A'.  Co.  v.  /.etch,  43  Am. 
Sr'  lui^.  A".  Cas.  588,  33  So.  Car.  175,  11  S. 
E.  A',/.r.3i. 

;i.  l*arti<'H  (Ict'tMidaiit.  —  A  railroad 
cor|)oration  is  not  a  necessary  or  pro[)cr 
I)arty  to  a  process  for  partition  in  conse- 
({ucnce  merely  of  having  laid  out  and  con- 
structed its  road  over  lands  owned  by  ten- 
ants in  common.  IViston  v.  /•'oster,  7  Mete. 
{Mass.)  297. 

4.  (JoiiiiiiiNNloiicrH.— A  company  hold- 
ing a  grant  of  a  right  of  way  from  one  ten- 
ant in  common,  the  other  tenants  in  com- 
mon filed  a  petition  for  compensation. 
Thercu|)on  the  company  instituted  action 
to  require  its  grant(»r  and  the  other  tenants 
to  make  partition,  and  it  was  o  decreed. 
/Mil,  that  the  partition  sr>  ordered  was 
properly  committed  to  five  commissioners 
under  the  practici;  prescribeil  bv  statute. 
Charleston,  C.  c<~»  C.  A'.  Co.  v.  /.tech,  35  So, 
Car,  146,  14  .S".  /i.  A'i/>.  730. 

The  |)artition  was  ordered  between  de- 
fendants at  the  instance  of  the  company, 
but  it  was  really  not  a  party,  and  therefore 
the  judge  properly  treated  the  grantor  of  the 
right  of  way  as  plainiilT  in  the  sense  of  the 
statute,  and  gave  to  her,  and  not  to  the 
coinpaiiy,  the  right  to  name  the  commis- 
sioners (fii  the  part  of  the  "  [ilaintiff,"  guard- 
ing in  his  order,  in  every  way  practicable, 
the  rii'h"  :  of  the  company  against  its  grant- 
or a.id  her  co-tenants.  Charleston,  C.  &*  L. 
A*.  Co.  v.  /.ii(h,  35  .s',>.  Car.  146,  14  S.  I'., 
/iep.  730. 

5.  Owi'lty  of  partition. —Commis- 
sioners who  arc  appointed  to  partition  land 
are  not  .iiilliori/ed  to  set  off  to  one  owiiit, 
against  his  will,  more  than  his  |>ro|)oition- 
ate  share,  and  require  him  to  jiay  the  dif- 
ference in  iiioiiey.  Me.  Rev.  St.  cli.  KS,  ;? 
17,  only  provides  that  when  land  cannoi  be 
divided  without  great  inconvenience  "  ii 
may  Ijc  iissit^ned  to  one  party,"  but  it  can- 


PARTITION,  O.— PARTNERSHIP,  1. 


035 


is  created 
i|)cl  parli- 
licr  under 
tion  or  ill 
A'.  Co.  V, 
Hj,".  A'.  C'tis, 

(MlillKN.— 

y  some  of 
for  a  ri^ht 
ty  will  he 
ic  had  un- 
it purpose. 
//,  43  Am. 
175.  '«  ^' 

\  railroad 
or  pr()|)cr 
1  in  conse- 
nt and  con- 
ned by  tcn- 
hr,  7  A/i-/c. 

ipaiiy  hold- 
>m  one  ten- 
its  in  com- 
iipcnsation. 
it(;d  action 
licr  tenants 
o  decreed, 
rdercd  was 
iiniissioners 
l)v  statute. 
.lYc/i,  35  So. 

)ctween  dc- 
;  company, 
id  therefore 
uitor  of  tiic 
ensc  of  tlic 
not  to  the 
le  commis- 
tiU,"  (,'uard- 
praciicable. 
it  Its  fjraiit- 
on,  C".  (If-  C, 

>,  14  s.  /■:. 

— Commis- 
rtition  land 
one  owner, 
proportion- 
ly  tile  (lif- 
l.  ch.  XS,  if 

cannot  lie 
nieiicc   "  it 

but  it  can- 


not be  done  apfninst  his  a  ill.  ll'ilion  v. 
lutropean  tS-  ,V.  //.  A'.  Ok,  62  Me.  1 1 2. 

((.  Voliiiitury  partition.— A  volun- 
tary partition  of  land  between  the  owners 
thereof  is  not  binding  upon  tile  holders 
of  existing  liens  upon  the  property  unless 
they  consent  thereto.  Unilid  X.  /.  A',  tlr* 
C.  Co.  V.  AfW/x"-  Doci:  Co.,  42  .\'.  /.  /:'(/,  547,  7 
CfH/.  Kip.  920.  1;  .  ///.  lit'p.  586. 

Two  out  of  five  tenants  in  common  con- 
veyed a  rinht  of  way.  The  interest  of  the 
other  tenants  In  common  in  the  ri^iit  of 
way  is  now  sued  for.  |}y  partition  between 
them,  made  after  the  sale  of  the  ri^ht  of 
way,  the  tenants  in  common  equally  divided 
betwt-iMi  them  the  remainder  of  the  tract 
out  of  which  the  ri^ht  of  way  had  been 
sold.  //('/(/,  that,  having  by  their  subse(|ueiu 
partition  put  it  out  of  their  power  to  have 
any  other  partition  with  the  railway  com- 
pany, iliey  could  not  recover.  Cook  v.  In- 
ternational &*  (J.  iV.  A'.  Co.,  3  Tex.  Civ. 
App.  125,  22  S.   W.  I\ep.  1012. 

PlaintitTs  having'  put  it  out  of  their  power 
to  have  such  partition  with  defendant  as 
would  rccot;nize  its  ri^lit  to  h.ive  the  land 
in  controversy  set  apart  to  it.  such  proceed- 
iii);s  must  be  deemed  equivalent  to  a  recog- 
nition of  the  right  of  defendant  to  have  tlie 
land  set  apart  to  it,  because  all  the  rest  of 
the  land  has  been  ap|>r()priated.  Cook  v. 
Inttrnational  &'  Ci.  X.  A'.  Co.,  3  TV.f.  Civ. 
App.  125,  22. S".    W.  Kip.  1012. 

PARTNERS. 

As  parties  to  condemnation  proceedings,  see 

Kminkni  Domain.  Ii7  !• 
In  goods  shipped,  when  may  sue  carrier,  see 

(AKKIAliKIlK   M|:R(  IIAMilSK,    717. 

Liability  of  connecting  carriers  as,  sec  Cak- 

KIAtiK  OK  MkKI'IIAMUSI',  «>40,  547. 

When  entitled  to  land  damages,  sec  Eminknt 
Domain,  4:tO. 


PARTNERSHIP. 

Between  connecting  carriers,   see  Carriack 

OK  I'ASsKNiiKKS,  .118. 

—  —  lines,  si-c  (>>NM.(  I  im;  Links,  4. 
When   stockholder  is   liable  to  creditor  as 
partner,  sec  SrocKiicii.nKKs,  40. 

1.  Wiiat  <'oiislllnt«>s.*      .An  .iss.Mia- 

tion    ainonj^    r^iilioad    cimiiianies    loi    tlic 

*  RiiiUvav  partitersliips  .mil  fa>-t  IicIkIii  liiiis, 
see  iiotf,  2  1  Am.  \'  V.sc..  K.  c'as.  3. 

CaniiectluK  liius.  I.i.iliiliiv  .is  parincrs,  sec 
note,  55  Am,  k  1"n>;.  K.  <'as.  .114. 


transportation  of  through  freights,  and  a 
division  of  the  receipts  in  presiiibed  pr<j- 
portioii,  does  not  constitute  a  partiurshi|), 
nor  render  the  earners  jointly  liable  for 
loss  or  injury  o('<  iirring  to  goods  trans- 
ported, Hot  .s/; ///j.'^i  A',  Co.  V.  Trippe,  18 
Am.&^  luif^.  I\.  Cif.v,  5^12.  42  Atk.  465,48 
Am.  Kip.  65.  -.Ai'i'i.viNi;  Converse  x>.  Nor- 
wuh  A  N.  Y,  'I'ransp.  Co,.  33  Conn.  166. 
yuoriNi;  A.Mi  Ai'i'i.viNd  Uarliiig  7'.  Hoston 
&  VV.  R.  Co.,  II  Allen  (Ma.ss,)  295. 

All  express  company  organized  as  a  joint 
stock  company  under  the  laws  of  New  York 
as  enaeted  in  1849,  ch.  258,  and  amended  in 
1851  and  1853,  is  but  a  copartnership,  and 
not  a  corporation,  and  the  members  may  be 
sued  as  partners.  lioston  &^  y/.  A'.  Co.  v. 
Pearson,  128  JArtv,  445. 

Certain  persons  resolved  to  organize  them- 
selves and  such  others  as  might  unite  with 
them  into  a  joint  stock  as.sociation,  and  to 
do  business  as  an  express  (-xiipany,  under 
the  above  statutes.  They  signed  the  arti- 
cles of  association  and  ado|ited  a  form  of 
subscription,  which,  among  other  things, 
authorized  the  secretary  to  sign  the  names 
of  other  sub.scribcrs  to  the  articles  of  asso- 
ciation. //«■///,  thatone  subscribing  to  the 
stock  and  paying  in  a  percentage  thereby 
became  a  member,  and  liable  as  a  partner. 
Jioston  &*  A.  K,  Co.  v.  /'ear.ion,  128  Mass. 

445- 

A    railroad  corporation    leased    a    house 

owned  by  it  to  an  individual,  who  paid  a 
certain  sum  annually  aiul  "  half  the  net 
proceeds  arising  from  keeping  said  house  as 
a  hotel,"  and  kept  an  account  ojicn  tn  its 
inspection,  and  gave  his  own  tiini;  and  at- 
tention, and  had  free  passes  over  tlie  rail- 
road for  himself  and  all  persons  employed 
and  a!l  arlii'ies  used  by  him  in  carrying  on 
the  house.  //('/(/,  tliat  the  rorporatioii  and 
such  individual  did  not  thereby  become 
partners,  even  as  to  third  |)ersons,  in  the 
business  of  keeping  ilu'  house.  Holmes  \. 
Olii  Colony  A'.  Co.,  5  (.hoy  {Mass.)  58. 

I'laiiuifrs  were  coiiiractcirs  to  build  a  rail- 
road, and  shared  the  profit  and  loss  of  the 
contract.  Held,  that  tliev  were  partners, 
and  that  an  atlidavit  in.-ide  by  one  of  them 
on  a  mortgage  of  |ierscinal  proiicrly  was 
snincirnt.     lie/knap  v.    Wendell.  21    A'.   //. 

'75. 

11  .A.  and  M.,  who  have  a  contract  for 
building;  a  railroad,  agree  to  pay  to  C  one 
third  i>f  the  profits  of  the  contract  in  con- 
sideiatiuii  of  his  si-rvices  in  procuring  the 


C 

I 

s 


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9 


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IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


1.1 


lii|2B 


115 


2.0 


yiU^lii 


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FholDgraphic 

Sciences 

Carporatian 


23  WIST  MAIN  SIMIT 

VniSTIR,N.Y.  14SM 

(7U)t7a-4S03 


c\ 


:V 


> 


^^ 


936 


PARTNERSHIP,  2-4. 


Ir 


contract  and  the  benefit  of  his  skill  and 
experience  in  coiistriictinij  a  railroiid,  it 
floes  not  constitute  C.  a  partner,  and  maUe 
liini  liable  for  labor  and  niaierials  used  in 
buildiiif;  the  road.  Voor/wcs  v./ofit's,  29  A'. 
/.  /..  270. 

If  A.  and  R.  contract  with  a  railroad 
•  company  to  build  its  road,  and  aftertvards 
sell  and  assign  to  C.  ard  D.  a  part  of  the 
contract,  so  that  C.  and  D.  shall  be  equally 
interested  with  A.  and  H.  in  the  profits  of 
the  contract,  C.  and  .  '  come  ])artners 
and  jointly  liable  with  > ,  and  B.  for  work 
done  on  the  road ;  and  where  a  note  is 
given  for  labor  or  materia'.*  .  gni-d  "  A.  and 
B.,"C.  and  D.  will  be  liabl  uch  note  as 

partners.      Voor/ifts  v.  /.  zrj   A'.  J.  L. 

270. 

2.  Valulity  of  tliepartiit'i'sllip  con- 
tract.—The  power  to  form  a  partnership 
is  not  one  of  the  powers  common  to  all 
corporations ;  and  where  the  charter  of  a 
railroad  corporation  confers  no  such  powei 
upon  it,  it  has  no  authority  to  enter  into  a 
partnership  with  a  natural  person  to  run  a 
line  of  boats  and  carry  passengers,  and  its 
contracts  pertaining  to  such  business  are 
invalid  as  against  the  corporation,  and  it 
is  not  liable  for  a  tort  committed  while  car- 
rying on  such  business.  Gtoin  v.  Central 
li.  Co.,  74  Ga.  509.— Followed  in  Led- 
singer  v.  Central  Line  Steamers,  75  Ga.  567  ; 
Central  R.  &  B.  Qo.v.  Smith,  76  Ala.  572, 

Contract  for  partnership  to  engage  in  the 
business  of  buying  up  soldiers'  claims  for 
land  warrants,  under  act  of  February  u, 
1847 — Illegality  of- -When  managing  part- 
ner compelled  to  account,  see  Brooks  v. 
Martin,  2  Wall.  {U.  S.)  70.— EXPLAINED  IN 
Texas  &  P.  R.  Co.  v.  Southern  Pac.  R.  Co., 
40  Am.  &  Eng.  R.  Cas.  475,  41  La.  Ann. 
970,  6  So.  Rep,  SS8. 

:t.  Ui{(lits  aiHl  liabilities  of  part- 
ners.*—Corporators  or  partners  associated 
for  a  special  purpose  specified  in  their  arti- 
cles of  partnership  cannot  change  that  pur- 
pose without  the  consent  of  all  the  corpora- 
tors or  partners.  Zahriskie  v.  Hackensack 
&•  N.  v.  A'.  Co..  iS  X.  J.  Eq.  178.— Approv- 
ing Stevens  v.  Rutland  &  B.  R.  Co.,  29  Vt. 
548,1  Am.  Law  Reg.  1 54.— Approved  in 
Snook  V.  Georgia  Imp.  Co.,  38  Am.  &  Eng. 
R.  Cas.  492.  S3  Ga.  61,  9  S.  E.  Rep.  1104; 
Bhick  T'.  Delaware  &  R.  Canal  Co.,  24  N.  J. 

*  WliLMi  persons  iiciins;  :is  a  de  facto  corpora- 
tidii  will  1)0  liublc  iis  partners,  see  note,  29  AM. 
St.  Kki'.  60;. 


Eq.  455.  Limited  in  Black  v.  Delaware  & 
R.  Canal  Co.,  22  N.  ].  Eq.  130.  Reviewed 
IN  New  Jersev  Midland  R.  Co.  z/.  Strait,  35 
N.  I.  L.  322.    ' 

4.  Power  of  one  partner  to  bind 
the  firm- Katifieation.  —  One  of  two 
partners  entered  into  a  contract  in  his  own 
name  with  a  railroad  for  the  transportation 
of  property  belonging  to  the  firm.  Tlie 
parties  had  no  particular  way  of  signing  the 
firm  name,  signing  sometimes  in  the  name 
of  both  partners,  and  sometimes  in  the  name 
rjf  one  or  the  other  of  them  individually. 
Held,  that  a  suit  could  be  maintained  in  the 
names  of  both  partners  for  a  breach  of  the 
contract,    lllmois  C.  K.  Co.  v.  Owens,  53  ///. 

39'- 

The  main  business  of  a  general  partner- 
ship was  the  catching,  packing,  transporta- 
tion, and  selling  of  oysters,  but  it  was  proved 
that  the  partners  formerly  owned  a  line  of 
wagons,  that  they  purchased,  held,  and  sold 
real  estate  in  their  joint  names,  owned  vessels 
which  they  employed  in  the  coasting  trade, 
and  subscribed  for  and  purchased  and  sold 
stock  in  railroads  and  other  companies. 
Held,  that  from  this  evidence  it  was  compe- 
tent for  the  jury  to  find  that  a  particular 
subscription  for  stock  in  a  railroad  com- 
pany made  by  one  partner  in  the  name  of 
the  firm  was  within  the  scope  of  the  part- 
nership and  in  the  course  of  its  business. 
Maltby  v.  Northwestern  Va.  R.  Co.,  16  Md. 
422. 

Under  Mo.  Rev.  St.  1889,  §  2207,  provid- 
ing that  a  judgment  may  be  given  for  or 
against  one  or  more  of  several  co-plaintifTs, 
it  is  proper  to  permit  one  partner  to  prose- 
cute to  final  judgment  for  an  injury  to  firm 
property  while  being  shipped,  after  the  other 
partner  has  signed  a  release  and  asked  that 
the  cause  be  dismissed.  Hoover  v.  Missouri 
Pac.  R.  Co.,  (Mo.)  16  5.  IV.  Rep.  480.— Fol- 
lowing Asher  v.  St.  Louis,  1.  M.  &  S.  R. 
Co.,  89  Mo.  1 16,  I  S.  W.  Rep.  123  ;  State  v. 
Philips,  97  Mo.  340.  10  S.  W.  Rep.  855  ; 
Spurlock  7'.  Sproule,  72  Mo.  503. 

Where  one  of  a  firm  subscribes  for  stock 
in  a  corporation  by  consent,  the  subscrip- 
tion may  be  transferred  to  the  firm,  making 
it  liable  for  the  subscription.  Weinman  v. 
Wilkinsl>iiri,r  &-  E.  L.  Pass.  R.  Co.,  uS  Pa. 
.St.  192,  II  Cent.  Rep.  54,  12  Afl.  Rep.  288, 
20  W.  A'.  C.  455. 

One  partner  cannot  make  himself  the 
agent  of  his  firm  to  subscribe  stock  to  a 
railroad  company,  the  building  of  railroads 


.-j'ljiif; 


PARTNERSHIP,  5-9.— PASSENGER  AGENT. 


937 


not  being  within  the  scope  of  the  partner- 
sliip.  Liviiiirston  v.  Pittslntrgh  &»  S.  R. 
Co  ,  2  Grant 's  Cas.  (Pa.)  219. 

To  enable  a  railroad  company  to  recover 
against  a  firm  for  stock  subscribed  by  one 
of  its  partners,  plaintifl  must  prove  the  as- 
sent of  all  the  partners.  Livingston  v. 
Pittsburgh  &*  S.  P.  Co.,  2  Grant 's  Cas.  (Pa.) 
219. 

Where  one  partner  subscribes  in  the  name 
of  a  firm  to  the  stock  of  a  railroad  com- 
pany, if  the  other  partner  has  knowledge  of 
the  subscription  and  the  payments  thereon 
by  the  firm  and  does  not  dissent,  it  is  strong 
evidence  of  assent,  which,  if  given  either 
before  or  after  the  subscription,  ratifies  it 
forever.  Livingston  v.  Pittsburgh  &*  S.  P. 
Co.,  2  Grant 's  Cas.  (Pa.)  219.— FOLLOWED  IN 
Pittsburgh  &  S.  R.  Co.  v.  Proudfit,  2  Pittsb. 
{Pa.)  85. 

5.  Notice  to  one  partner,  when 
binds  firm. — A  member  of  a  partnership 
who  was  also  a  director  in  a  railroad  com- 
pany purchased  certain  bonds  in  behalf  of 
his  firm  at  less  than  their  par  value,  and  in 
violation  of  the  statute  of  the  state  prohib- 
iting a  director  from  purchasing  such  bonds. 
HM,  that  the  knowledge  of  the  member  as 
to  the  invalidity  of  the  purchase  bound  all  of 
the  members,  though  the  bonds  were  trans- 
ferred after  a  dissolution!  of  the  firm,  but  in 
winding  up  its  business.  Marietta  Sf  C.  R. 
Co.  v.  Mowry,  28  Hun  (N.  V.)  79.— Quot- 
ing Duncomb  v.  New  York,  H.  &  N.  R. 
Co.,  84  N.  Y.  190. 

G.  Dissolution  l)y  death  of  partner. 
— A  contract  made  by  a  partnership  for  the 
construction  of  a  railroad  will  be  canceled 
by  the  death  of  any  of  the  parties  unless 
the  other  parties  coisent  that  the  work 
shall  be  continued  by  the  heirs  of  the  de- 
ceased, or  by  others  employed  by  them  for 
that  purpose.  A  refusal  to  give  such  con- 
sent will  not  subject  the  party  refusing  to 
damages.  He  is  only  bound  to  pay  to  the 
heirs  the  value  of  the  work  already  done, 
and  of  the  materials  already  prepared,  pro- 
portionably  to  the  price  agreed  on,  in  case 
such  work  and  materials  may  be  useful  to 
him.  McCord  v.  West  Feliciana  R.  Co.,  3 
La.  Ann.  285. 

7.  Powers  of  surviving  partner.— 
Where  a  sale  of  railway  stock  and  bonds  is 
effected  by  a  partnership,  a  mortgage  being 
taken  back  to  secure  part  of  the  purchase 
money,  and  one  of  the  partners  subsequently 
dies,  the  right  to  enforce  payment  of  the  un- 


paid purchase  money  remains  in  the  surviv 
ing  partner,  whether  the  subject  of  sale  be 
treated  as    realty   or   goods  and  chattels. 
Bokkoiuw.  Foster,  24  Grant 's  Ch.  ( [/.  C.)  333. 

It  was  held  on  rehearmg  that  the  right 
to  enforce  payment  of  the  unpaid  purchase 
money  remained  in  the  surviving  partner, 
and  that  the  representative  of  the  deceased 
partner  was  an  unnecessary  party  to  the 
bill.  Bolckow  V.  Foster,  25  Grant's  Ch.  (U. 
C.)  476. — Approving  Sykes  v.  Brockville  & 
O.  R.  Co.,  9  Grant's  Ch.  9. 

8.  Riglits  of  retiring  partner.— 
A  railroad  was  built  over  a  leased  colliery, 
held  by  two  partners.  One  partner  bought 
the  interest  of  the  other  in  the  colliery, 
"  and  all  property  real  and  personal  there- 
with connected."  Afterwards  the  railroad 
paid  $10,000  damages  for  the  location  of 
the  road.  Held,  that  the  retiring  partner 
was  entitled  to  his  share  thereof.  Blackis- 
ton's  Appeal,  81*  Pa.  St.  339. 

O.  Individual  liability.  —  Where  a 
partr\ershin  owns  stock  in  an  insolvent  cor- 
poration, a  member  of  the  firm  will  be  liable 
to  an  execution  against  himself  individually 
as  a  stockholder,  upon  the  motion  of  a  cred- 
itor of  the  corporation,  in  all  cases  where 
the  firm  would  be  subject  to  such  liability. 
Bray  v.  Seligtnan,  9  Am.  &>  Eng.  R.  Cas, 
653.  7S  Mo.  31. 

PARTNERSHIP  IIABILITT. 

Of   stockholders  to    creditors,    see    Stock- 
holders, 48-50. 


PART  PERFORMANCE. 

By  parties  to  lease,  estoppel  by,  see  Leases, 

ETC.,  80,  81. 
Effect  of,  to  take  contract  out  of  statute  of 

frauds,    see   Contracts,    20  ;    Specific 

Performance,  O. 
Of  construction  contracts,  recovery  for,  see 

Construction  of  Railways,  41. 
—  contract,  effect  of,  see  Contracts,  73. 


PASSAGEWAYS. 

At  stations,  liability  for  injuries  caused  by, 
see  Stations  and  Dki'ots,  lOO. 


PASSAIC. 

Decisions  particularly  applicable  to,  see  Mu> 
NiciFAL  Corporations,  62. 


PASSENGER  AGENT. 
Service  of  process  on,  see  Process,  20. 


M  ' 


I   ) 


d38 


PASSENGERS. 


PASSENGERS. 


i-^' 


3 


•891 
i*S3K 


I 


B  i 


Accidents  to,  causing  death,  liability  for,  see 
Dkatii  hy  Wkoncitl  Act,  75. 

Action  for  carrying  beyond  destination,  when 
barred  by  lapse  of  time,  see  Limitations 
OK  Actions,  {$8. 

Arrest  of,  at  instance  of  passengers,  see  Ar- 
Ri:sT,  ti. 

Assault  by  one  passenger  upon  another,  see 
Assault,  O. 

Assaults  upon,  see  Assauli',  2-10. 

by  employes,  see  Agency,  1)6. 

Authority  of  conductor  to  carry  on  construc- 
tion train,  see  CoNnucroR,  3. 

Carriage  of,  on  land-grant  roads,  see  Land- 
Grant  Railroads,  O. 

Classification  of,  see  Carriage  of  Pas  >  .<'gers, 
72. 

Compelling  carriage  of,  see  Mandamus,  15. 

Contributory  negligence  of,  see  Electric 
Railways,  30. 

as  a  defense,  see  Carriage  of  Pas- 
sengers, 842-408. 

— —  —  —   for    causing    death,    see 

Death  by  Wrongful  act,  182-11)1. 

to  action  for  lost  baggage, 

see  Baggage,  120. 

Costs  in  actions  for  ejection  of,  see  Costs,  7. 

Custody  of  baggage  by,  see  Baggage,  79- 
87. 

Doctrine  of  comparative  negligence  in  actions 
for  injuries  to,  see  GoMrARATivE  Negli- 

GKNCE,    7. 

Drovers  traveling  on  cattle  trains  are,  see 
Carriage  of  Live  Stock,  125. 

Duty  of  sleeping  and  palace  car  companies  to, 
see  Sleeping,  etc..  Companies,  5-8. 

to  call  for  baggage,  see  Baggage,  04- 

«7. 

disclose  value  and  nature  of  bag- 
gage, see  Baggage,  88-J)0. 

—  required  from  company  to,  distinguished 

from  that  due  to  employes,  see  Employes, 
Injuries  to,  lO. 

—  to  awaken,  see  Sleeping,  etc.,  Companies, 

O. 
distinguished  from  duty  to  trespassers, 

see  Trespassers,  Injuries  to,  24. 

fence  for  protection  of,  see  Fences,  70. 

inquire  as  to  rules  of  carrier,  see  Car- 

riac.e  of  Passengers,  GO. 

—  towards  friends  and  relatives  of,  see  Sta- 

tions and  Depots,  74, 
Effect  of  non-compliance  by,  with  carriers' 

rules  as  respects  baggage,  see  Baggage, 

11. 
Employes,  when  deemed  to  be,  see  Carriage 

OF  Passkngers,  55-51). 
English  statutes  prohibiting  sales  of  liquor 

to,  see  Intoxicaiing  Liquors,  O. 


Excessive  damages  for  injuries  to,  see  New 
Trial,  ;J5,  tUi. 

Expulsion  of,  from  street-cars,  see  Street 
Railways,  510-53I. 

train,  see  Ejection  ok  Passengers. 

sick  or  insane,  see  Ejection  ok  Passen- 
gers, 45,  46. 

Injuries  to,  at  or  near  bridges,  see  Bridges, 

E  TC.  ,51. 

—  —  by  collision,  see  Collisions,  28. 

derailment,  see  Derailment.  1-7. 

independent  contractor,  liability  for, 

see  Independent  Contractors,  25. 

children  on  train,  see  Children,  Inju- 
ries to,  13-11). 

while  riding  as,  in  street-cars,  see 

Childken,  Injuries  to,  42-40. 

in  boarding  or  alighting  from  cable  car, 

see  Cable  Railways,  11,  13. 

from    failure    to    build    and  maintain 

fences,  see  Fences,  102. 

—  insufficiency  of  culverts,  see  Cul- 
verts, 11). 

on  cable  cars,  see  Cable  Railways,  8- 

13. 

Instructions  in  actions  for  injuries  to,  see 
Trial,  124,  141). 

Intoxication  of,  see  Carriage  of  Passengers, 
37. 

Liability  for  injuries  to,  see  Electric  Rail- 
WAV.s,  25-31;  Street  Railways,  325- 
447. 

injury  to,  by  strikers,  see  Strikes,  4. 

money  on  person  of,  see  Baggage,  84. 

personal  injuries  to,  see  Sleeping,  etc., 

Companies,  15-23. 

—  of  company  where  baggage  arrives  ahead 

of,  see  Baggage,  72. 
elevated  railways  for  injuries  to,  see 

Elevated  Railways,  11)9-215. 
ferrymen  as  carriers  of,   see   Ferries, 

11. 
lessee  road  for  injuries  to,  see  Leases, 

etc.,  61. 
lessor  for    personal    injuries    to,    see 

Leases,  etc.,  43. 

—  to,   distingruished  from  liability  to  tres- 

passer on  train,  see  Trespassers,  Inju- 
ries to,  83. 

Libel  in  admiralty  for  death  of,  see  Admi- 
ralty, 3. 

Misconduct  of,  see  Carriage  of  Passengers, 
36. 

Nonsuit  in  suits  for  injuries  to,  see  Trial, 
66,  76. 

On  one  train,  baggage  on  another,  liability 
of  company,  see  Baggage,  13-16. 

Opinions  of,  on  question  of  speed,  see  Wit- 
nesses, 129. 

Ordinance  limiting  number  of,  see  Street 
Railways,  272. 


PASSENGER  TRAINS— PASSES,  1,2. 


939 


Ordinances  as  to  safety  of  platforms  for,  see 
Streets  and  Highways,  314. 

Protection  of,  duty  of  company  as  to,  see 
Carriage  of  Passengers,  301-320. 

Questions  of  fact  in  actions  for  injuries  to, 
see  Trial,  108. 

Releases  by,  for  injuries  received,  see   Re- 

LKASE,   17-21. 

Rights  and  liabilities  of  carriers  of,  see  Car- 
riage OF  Passengers. 

—  of  colored  persons  as,  see  Colored  Per- 

sons, 5-14. 

persons  accompanying,  see  Carriage 

of  Passengers,  OO,  Ol. 

Robbery  of,  liability  of  company,  see  Bag- 
gage, 85. 

Rules  regulating  conduct  of,  see  Carriage 
OF  Passengeks,  85. 

—  requiring  first-class  ticket,  see  Sleeping, 

ETC.,  Companies,  12. 

Rule  to  stop,  look,  and  listen  does  not  apply 
to,  see  Crossings,  Injuries,  etc.,  at, 
237. 

Safety  of,  paramount  to  that  of  animals  on 
track,  see  Anim'  s;  Injuries  to,  OO. 

Slaves,  when  regarded  as,  see  Carriage  of 
Slaves,  1. 

Statement  of  cause  of  action  in  actiors  for 
injuries  to,  see  Pleading,  25. 

suits  on  contracts  for  car- 
riage of,  see  Pleading,  15. 

Stopping  over,  rights  of,  as  regards  baggage, 
see  Baggage,  87. 

Variance  between  pleading  and  proof  in  ac- 
tions for  injuries  to,  see  Pleading,  140. 

Violation  of  rules  by,  as  a  defense,  see  Death 
UY  Wrongful  Act,  173. 

Voluntary  bailment  of  baggage  by,  see  Bag- 
gage, 71. 

When  bound  by  limitation  of  liability  for  ar- 
ticles left  in  cloak  room,  see  Baggage, 
131. 


PASSENGER   TRAINS. 


Carrying  goods  on, 
chandise,  5. 


see  Carriage  of  Mer- 


FASSES. 

Evidence  as  to  value  of,  see  Evidence,  7. 
Injunction  by  stockholder  to  restrain  grant- 

inp;  of  see  Stockholders,  $)4. 
Persot-S  riding  on,  when  deemed  passengers, 

see  Carriage  of  Passengers,  IJ). 
Prohibition  of,  by  Interstate  Commerce  Law, 

see  Interstate  Commerce,  OO. 
To  drovers  on  cattle  trains,  see  Carriage  of 

Livestock,  118-124. 


I.  CONTBACTS  TO  ISSUE 939 

II.  ISSUANCE,   EXPIRATION.   AND   RE- 
NEWAL   940 

III.  COHPANT'S   DUTY   AND   LIABIIITT 

TO  ONE  RIDING  ON  A  PASS 940 

IV.  CONDITIONS  EXEMPTING  CARRIER 

FROM  LIABILITY 94^ 

I.  CONTRACTS  TO  ISSUE 

1.  Interpretation. —  Where  a  deed 
provides  that  "  the  said  grantor  and  his 
family  shall  have  and  enjoy  the  right  of 
free  passage  "  in  the  r  pany's  cars  over  a 
railroad  "  so  long  as  l  land  and  appurte- 
nances hereinbefore  described  shall  continue 
to  be  used  "  for  railroad  purposes  under  its 
charter,  grandchildren  after  ceasing  to  be 
members  of  such  grantor's  household  are 
not  entitled  to  a  free  pass  over  the  railroad 
as  one  of  his  family.  Dodge  v.  Boston  Gr*  P. 
K.  Corp.,  51  Am.  6f  E>tg.  P.  Cas.  388,  154 
A/ass.  299,  28  N.  E.  Rep.  243. 

In  consideration  of  the  conveyance  of  a 
right  of  way  defendant  agreed  to  "carry" 
G.  and  wife  and  any  of  their  children 
"  free  of  charge "  in  its  passenger-cars. 
Plaintiff  is  one  of  the  children  mentioned. 
Held,  that  plaintifl  was  entitled  to  be  carried 
free.  The  fact  that  his  father  purchased 
and  paid  for  this  right  of  free  carriage  is 
not  important.  Plaintiff's  right  is  as  com- 
plete as  if  he  had  purchased  and  paid  for 
it  himself,  and  its  infringement,  whether 
tortious  or  otherwise,  is  a  wrong  to  him  for 
which  he  has  his  action.  As  a  reasonable 
regulation  defendant  might  have  provided 
plaintifl  with  a  pass,  and  required  him  to 
exhibit  it  to  conductors ;  but  plaintiff  was. 
under  no  obligation  to  apply  for  one,  and 
if  none  was  furnished  him  he  had  the  right 
to  be  carried  without  one.  If  defendant 
made  it  a  rule  to  issue  no  passes,  then  it 
was  its  duty  to  inform  the  conductors  of 
plaintiff's  rights,  and  instruct  them  to  allow 
them.  Grimes  v.  Minneapolis,  L.  &^  M.  R. 
C^.,  31  Am,  &*  Eng.  R.  Cas.  123,  37  Minn. 
66,  33  N.  W.  Rep.  33. 

Where  a  company  contracts  with  a  firm 
"  in  consideration  of  a  ticket  entitling  either 
member  of  the  firm,  but  only  one  on  any 
train,  to  a  seat  on  its  passenger  trains, "  the 
firm  is  entitled  to  only  one  ticket,  to  be 
presented  when  any  one  member  takes  pas- 
sage. Knopf  v.  Richmond,  F.  &^  P.  R.  Co. , 
37  Am.  &•  Eng.  R.  Cas.  140,  85  Va.  769,  8 
S.  E.  Rep.  787. 

2.  Parol  «»videncc  to  vary.—PIaintiff 


2 
1: 


m 


'  ».*■■ 


940 


PASSES,  3-9. 


'4l 


9m 


11 


,   f  KM* 

fiSS 


(»*: 


II! 


accepted,  in  part  ser.tlement  of  a  suit,  free 
passes  for  ten  years  over  defendant's  line 
for  liiniself  and  wife  with  the  express 
written  stipulation  that  each  should  be  used 
by  the  person  to  wlioni  it  was  issued  and  no 
other.  The  pass  issued  to  plaintiff's  wife  was 
on  one  occasion  loaned  to  her  daughter. 
The  c(jmpany  refused  to  issue  passes  for  the 
ensuing  year  unless  plaintiff  made  restitu- 
tion for  the  wrong  done  the  company  the 
previous  year.  This  he  refused  to  do,  and 
brought  an  action  against  the  company  for 
breach  of  contract,  claiming  that  there  was 
a  distinct  parol  agreement  that  any  member 
of  his  family  should  be  allowed  to  use  the 
pass.  HM,  that  parol  evidence  of  antece- 
dent or  contemporaneous  verbal  agreements 
was  inadmissible  to  cotUradict,  vary,  or  add 
to  the  terms  of  the  written  contract.  Bal- 
/I wort-  ^S^•  O.  A\  Co.  V.  Bran',  17  ///.  A/>p. 
151. 

3.  A''aIi<Uty  and  enforceiiient.— A 
contract  based  upon  a  good  consideration 
to  grant  a  life  pass  is  valid  and  binding 
upon  the  company,  and  for  its  refusal  to 
perform  the  same  it  may  be  held  liable  in 
damages.  ErA-  &*  P.  A'.  Co.  v.  Douthet,  88 
Pa.  St.  243,  32  Ani.  Rep.  451. 

An  agreement  between  a  railway  com- 
pany and  a  shipper  whereby  the  shipper  is 
to  have  a  free  pass  on  the  payment  of  a 
nominal  sum  in  consideration  of  shipping 
all  his  goods  by  the  railway  cannot  be 
specifically  enforced  in  equity  against  the 
company.  Sturge  v.  Midland  R.  Co.,  4jur. 
N.  S.  273. 

A  covenant  in  a  lease  of  bridge  privileges 
providing  for  the  issuing  of  passes  to  the 
lessor's  otlicers  and  directors  is  valid  and 
will  be  enforced.  Niagara  Falls  Int.  Bridge 
Co.  V.  Great  Western  R.  Co.,  25  U.  C.  Q.  B. 

3'3. 

4.  damages.— In  an  action  against  a 

railroad  for  refusing  to  furnish  pkiintiflfand 
his  family  a  pass  for  life,  as  contracted,  in 
estimating  the  damages  it  is  proper  for  the 
jury  to  consider  plaintiflf's  age  and  circum- 
stances, and  the  number  and  station  of  his 
family.  Erie  &>  P.  R.  Co.  v.  Douthet,  88 
Pa.  St.  243. 

II.  ISSUANCE,  EFXFIRATION,  AND 
RENEWAL. 

5.  Issuniice  ot  passes  as  aff'ected  by 
the  Interstate  Cuinnieree  Act.* — For 

*  See  also  iNTEKSTATIi  COMMKRCE,  UO. 


provisions  against  issuing  free  passes  under 
the  Interstate  Commerce  Act,  see  Ex  parte 
Koi'hier,  29  Avi.  &*  Eng.  R.  Cas.  44,  i  Int. 
Com.  Rep.  3 1 7.  Slater  v.  Northern  Pac,  R. 
Co.,  2  Int.  Com.  Com,  359.  Griffee  v.  Burl- 
ington &^  M.  R.  R.  Co.,  2  Int.  Com.  Com. 
30 1.  Hamcy  v.  Louisville  &*  N.  R.  Co.,  3 
Int.  Com.  Rep.  793. 

O.  Revocation.— A  pass  for  life,  given 
without  valid  consideration,  may  be  re- 
voked, notwithstanding  it  was  issued  in 
pursuance  of  a  vote  of  the  stockholders  of 
the  company.  New  York  (3^  N.  H.  R.  Co. 
v.  Ketchum,  27  Conn.  170. 

Receivers  of  a  railroad  cannot  nake  an 
agreement  for  a  free  life  >ass  which  will  bind 
subsequent  owners  of  e  road.  Martin  v. 
New  York,  S.  &^  W.  R.  Co.,  12  Am.  &- 
Eng.  R.  Cas.  448,  36  N.  J.  Eg.  109. 

7.  affected    by   lease   of    the 

road.* — A  free  pass  is  revoked  by  the  leas- 
ing of  the  railroad  to  another  company. 
Turner  v.  Richmond  Sr'  D.  R,  Co.,  70  N. 
Car.  1. 

8.  Renewal  after  expiration.  —  A 
railway  company  by  contract  issued  to 
plaintiff  an  annual  pass.  On  its  expiration 
plaintiff  applied  for  and  secured  a  renewal. 
On  its  expiration  he  did  not  apply  for 
another.  Held,  that  it  is  a  question  for  the 
jury  whether  it  was  the  duty  of  the  com- 
pany to  issue  a  renewal  without  application. 
Knopf  V.  Richmond,  F.  «&*  P.  R.  Co.,  yj  Am. 
&*  Eng.  R.  Cas.  140,  85  Va.  769,  8  S.  E.  Rep. 
787. 

III.  COMPANT'S   DTTTT    AND   LIABILITY  TO 
ONE  RIDING  ON  A  PASS. 

9.  Generally.!— A  passenger  on  a  pass 
given  for  a  valuable  consideration  has  the 
same  rights  as  a  passenger  for  hire.  Gris- 
woldv.  New  York  &*  N.  E.  R.  Co.,  26  Am. 
&*  Eng.  R.  Cas.  280,  53  Conn.  371,  55  Am. 
Rep.  1 1 5,  4  At  I.  Rep.  261. 

A  passenger  on  a  vessel  carried  free  be- 
cause he  is  a  "  steamboat  man  "  is  entitled 
to  the  same  protection  as  other  passengers. 
Steamboat  Neiu  M 'or Id  v.  King,  16  IIo7v.  (il, 
S.)  469.— Approved  in  Lemon  v.  Chanslor, 
68   Mo.  340.    Quoted   in  Jacobus  v.  St. 


*  Agreements  for  pass  over  road  in  considera. 
tioii  of  grant  of  right  of  wny.  Road  changing 
hands,  see  51  Am.  &  Eng.  R.  Cas.  391,  aistr. 

f  Traveler  with  pass  as  gratuity  passenger, 
see  note,  13  Am.  &  Eng.  R.  Cas.  27. 

Rights  of  passengers  traveling  on  passes,  set 
note,  5  L.  R.  A.  820. 


PASSES,  10-12. 


941 


i  under 
parte 
I  Int. 

Pac.  R. 
Bttrl- 
Com. 
Co.,  3 


Paul  &C.  R  Co.,  2o  Minn.  125  (Gil.  no); 
Micliij^an  5.  &  N.  I.  R.  Co.  v.  Heaton,  37 
Infi.  448;  Union  Pac.  R.  Co.  v.  Rollins,  5 
Kan.  167;  State  7/.  Western  Md.  R.  Co.,  21 
Am.  &  Eng.  R.  Cas.  503,  63  Md.  433. 

Wliert;  a  passenger  who  is  riding  free  sues 
for  a  pers(jiial  injury,  tlie  action  cannot  be 
maintained  upon  the  basis  of  a  contract, 
either  expressed  or  implied.  It  must  rest 
exclusively  upon  that  obligation  which  the 
law  always  imposes  upon  every  one  who  at- 
tempts to  do  anything,  even  gratuitously,  for 
another  to  exeicise  some  degree  of  care 
and  skill  in  the  performance  of  what  he  has 
undertaken.  Nolton  v.  Western  R.  Co...  15 
A',  y.  444;  affirming  10  Hmv.  Pr.  97.— Dis- 
tinguishing Winterbottom  v.  Wright,  10 
M.  &  \V.  109.  Following  Coggs  v.  Ber- 
nard, 2  Ld.  Raym.  909.— Distinguished 
IN  Higley  v.  Gilmer,  3  Mont,  go.— Prince  v. 
International  &•  G.  N.  R.  Co.,  21  Am.  &* 
Eng.  R.  Cas.  1 52,  64  "^ex.  144, 

10.  Degree  of  care  cleinaiicled.*— 
The  same  degree  of  oare  on  the  part  of  the 
carrier  is  required  in  case  of  one  carried 
gratuitously  as  in  case  of  one  carried  for 
hire.  Jacobus  v.  St.  Paul  &^  C.  R.  Co.,  20 
Minn.  125  {Gil.  1 10).— Quoting  McLean 
V.  Burbank,  11  Minn.  288.— Approved  in 
Bryan  v.  Missouri  Pac.  R.Co.,  32  Mo.  App. 
228.— 5/rt/^v.  Western  Md.  R.  Co.,z\  Am. 
&^  Eng.  R.  Cas.  503,  63  Md.  433.  Water- 
bury  V.  New  York  C.  &•  H.  R.  R.  Co.,  21 
Blatchf.  (t/.  5.)  314,  17  Fed.  Rep.  671.— Ap- 
proving Todd  V.  Old  Colony  &  F.  R.  R. 
Co.,  3  Allen  (Mass.)  18.  Quoting  Austin 
V.  Great  Western  R.  Co.,  L.  R.  2  Q.  B.  442. 
— Quoted  in  State  v.  Western  Md.  R.  Co., 
21  Am.  &  Eng.  R.  Cas.  503.  63  Md.  433. 
Reviewed  in  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Headland,  18  Colo.  All-— Gulf,  C.  &>  S. 
F.  R.  Co.  V.  McGown,  26  Am.  &>  Eng.  R. 
Cas.  274,  65  Tex.  640.— Quoting  Philadel- 
phia &  R.  R.  Co.  V.  Derby,  14  How.  (U.  S.) 
486.— 0/«V7  <&*  M.  R.  Co.  V.  Selby,  47  Ind. 
471,  8  Am.  Ry.  Rep.  177. 

A  railroad  company  is  bound  to  exercise 
a  high  degree  of  care  for  the  safety  of  such 
passenger.  Hospes  v.  Chicago,  M.  &•  St. 
P.  R.  Co.,  29  Fed.  Rep.  763. 

Must  exercise  due  and  reasonable  care. 
Todd  V.  Old  Colony  &*  F.  R.  R.  Co.,  3  Allen 
(Mass.)  18.— Approved  in  Waterbury  v. 
New  York  C.  &  H.  R.  R.  Co.,  21   Blatchf. 

•  Person  riding  free  by  consent  of  company 
entitled  to  protection  due  passenger,  see  note,  a 
L.  R.  A.  167. 


(U.  S.)  314,  17  Fed.  Rep.  671.  Quoted  in 
Swift  V.  Newbury,  36  Vt.  355.  Reviewed 
IN  Greenleaf  v.  Illinois  C.  R.  Co.,  29  Iowa 
14;  Worthington  7>.  Central  Vt.  R.  Co.,  64 
Vt.  jny.—Iirjant  v.  Lhicago.  St.  P.,  M.  &^ 
0.  R.  Co.,  58  Am.  &-  Eng.  R.  Cas.  15,  53 
Fed.  Rep.  997. 

The  distinction  between  the  different  de- 
grees of  negligence  is  applicable  to  the  case 
of  a  passenger  injured  while  riding  on  a 
free  pass.  Jacobus  v.  St.  Paul Gr'  C.  R.  Co., 
20  Minn.  \2i  {Gil.  no).— Quoting  Phila- 
delphia &  R.  R.  Co.  V.  Derby,  14  How.  (U. 
S.)  486;  Steamboat  New  World  v.  King,  16 
How.  474. 

1 1.  Iiiability  for  personal  injuries, 
geiierally.*— Common  carriers  are  subject 
to  the  same  liability  for  injuries  resulting 
from  negligence  to  persons  riding  on  a  free 
pass  as  they  are  to  those  who  pay  full  fare. 
Louisville,  N.  A.  6^  C.  R.  Co.  v.  Faylor,  126 
Ind.  126,  25  N.  E.  Rep.  869.  Gillenwaterv. 
Madison  &^  I.  R.  Co. ,  5  Ind.  339,  Lemon  v. 
Chanslor,  68  Mo.  340.— Approving  Indian- 
apolis &  St.  L.  R.  Co.  V.  Horst,  93  U.  S.  291  ; 
Steamboat  New  World  v.  King,  16  How. 
(U.  S.)  469;  New  York  C.  R.  Co.  v.  Lock- 
wood,  17  Wall.  (U.  S.)  357.  Quoting  Phil- 
adelphia &  R.  R.  Co.  V.  Derby,  14  How. 
468 ;  McPheeters  v.  Hannibal  &  St.  J.  R, 
Co..  45  Mo.  26. 

12.  illustrations.— Proof  of  the 

mere  fact  that  plaintiff  was  injured  on  a 
train  by  the  porter  shutting  the  door  against 
him,  without  more,  does  not  amount  to 
such  negligence  as  to  make  the  company 
liable  where  the  carriage  is  gratuitous. 
Hospes  V,  Chicago,  M.  <S-  St.  P.  R.  Co.,  29 
Fed.  Rep.  763. 

There  is  nothing  in  the  fact  that  plaintiff 
was  traveling  upon  a  "  shipper's  pass,"  given 
in  consideration  of  the  freight  paid  on  stock 
which  he  was  shipping  at  the  time  of  his 
injury,  to  prevent  a  recovery  ;  and  an  answer 
which  sets  up  that  he  was  injured  while  rid- 
ing on  a  free  pass  is  bad  on  demurrer, 
Ohio  &'  M.  R.  Co.  V.  Nickiess,  71  Ind.  271. 

If  a  railway  company  furnisheis  free  trans- 


*  Free  pass;  liability  of  company  to  passenger 
traveling  on,  see  notes,  18  Am.  &  Eng.  R.  Cas. 
170;  13  Id.  57;  21  Id-  155;  48  /a'.  97-  See  also 
Carriage  OF  Passengers,  l8,  lO. 

Liability  of  company  for  injuries  to  persons 
riding  on  complimentary  passes,  to  stock  driv- 
ers, shippers,  express  agents,  newsboys,  and  the 
like,  see  notes,  ^  L.  R.  A.  166;  22  Id.  794;  18 
Am.  &  Eng.  R.  Cas.  176;  37  I<I'  53-  See  also 
Carriage  of  Live  Stock,  118-133. 


943 


PASSES,  13-17. 


ii' 


(1  5 


•I'  i 


s 

mi 


an 


^ 


1  ■* 


portation  to  a  civil  officer,  to  a  point  which 
lie  may  designate  as  necessary  to  tiie  dis- 
charge of  an  official  duty,  the  same  liability 
which  it  assumes  to  transport  limi  safely  to 
the  place  he  first  designated,  will  attach  to 
the  company  for  his  safe  carriage  to  any 
point  beyond,  to  which  he  deems  it  neces- 
sary to  go  (or  the  proper  performance  of  his 
duty,  and  to  which  its  servants  having 
charge  of  him  as  a  passenger  voluntarily 
transport  him.  International  Sr'  G.  N.  Ji. 
Co.  V.  Cock,  6%  Tex.  713.  5  S.  11'.  Kep.  635. 

13.  iiistriictioiis.—PlainiifT,  a  cit- 
izen of  Pennsylvania,  while  traveling  in  New 
Jersey  was  injured  on  the  road  of  defendant. 
It  was  shown  that  plaintiff  was  riding  on  a 
pass,  in  which  it  was  stipulated  that  the  per- 
son accepting  it  assumed  all  risk  of  acci- 
dent. Plaintiff  oflered  evidence  to  prove 
that  tli£  pass  was  not  a  mere  gratuity,  but 
that  it  was  issued  to  him  as  part  considera- 
tion for  the  leasing  to  his  employer  of  a 
pleasure  resort  owned  by  defendant.  The 
negligence  ot  the  company  in  causing  the 
injury  w:is  not  denied.  Held,  that  a  charge 
to  the  jury  instructing  them  that  if  the  pass 
was  accepted  not  as  a  mere  gratuity  but 
upon  a  good  consideration,  even  by  the  law 
of  New  Jersey,  he  was  entitled  to  recover, 
was  not  erroneous.  Camden  6^  A.  R.  Co. 
V.  Bausch,  {Pa.)  28  Am.  &^  Eng.  R.  Cas.  142, 
y  Atl.  Rep.  731.— Distinguishing  Kinney 
V.  Central  R.  Co.,  34  N.  J.  L.  513.  Reviev/- 
ING  Railroad  Co.  v.  O'Hara,  12  W.  N.  C. 

(Pa.)  473. 

14.  qucHtious  of  fact.  —  It  is  a 

question  for  the  jury  whether  a  person  rid- 
ing on  a  free  pass  issued  to  another  was, 
under  circumstances  tending  to  show  acqui- 
escence on  the  part  of  the  company,  lawfully 
on  the  train  at  the  time  he  was  injured. 
Great  Northern  R.  Co.  v.  Harrison,  10  Ex, 
376,  2  C.  L.  R.  II 36,  23  /-./.  Ex.  308. 

15.  Liability  for  causing:  death.— 
The  payment  of  fare  i^not  necessary  to  create 
the  relation  of  common  carrier  and  pas- 
senger. Upon  this  principle  a  railroad  com- 
pany was  held  liable  for  causing  the  death 
of  a  passenger  by  the  negligence  of  its  em- 
ployes, notwithstanding  he  was  at  the  time 
riding  upon  a  free  pass,  upon  which  was  a 
stipulation  signed  by  himself  releasing  the 
company  from  all  liability  for  injury  to  his 
person  or  property  while  using  the  same. 
Rose  v.  Des  Moines  Valley  R.  Co.,  39  Iowa 
246,  c)  //;//.  Ry.  Rep.  7,  20  Avi.  Ry.  Rep.  326. 
—  .\l  i  R,.\  i.Nii  Pennsylvania  R.  Co.  v.  Hen- 


derson, 51  Pa.  St.  315.  Disapproving 
Wells  V.  New  York  C.  R.  Co.,  24  N.  V,  181 ; 
Perkins  v.  New  York  C.  R.  Co.,  24  N.  Y. 
196:  Bissell  V.  New  York  C,  R.  Co.,  25  N. 
Y.  442.  Reviewing  Philadelphia  &  R.  R. 
Co.  V.  Derby,  14  How.  (U.  S.)  483. 

10.  Liiability  to  employe  riding  on 
pasH. — A  railroad  company  is  bound  to 
carry  a  (lassenger  safely  whether  he  has  paid 
the  fare  or  not,  if  he  is  lawfully  on  the  train, 
as  in  this  case,  where  one  who  had  been  in 
the  employ  of  the  company  was  permitted 
to  ride  free.  Ohio  &^  M.  R.  Co.  v.  Muhlin^, 
30  ///.  9.— Applied  in  Buck  v.  People's  St. 
R.,  E.  L.  &  P.  Co.,  46  Mo.  App.  555.  Dis- 
tinguished IN  Higgins  V.  Hannibal  &  St. 
J.  R.  Co.,  36  Mo.  418.  Reviewed  in  Wa- 
terbury  v.  New  York  C.  &  H.  R.  R.  Co.,  21 
Blatchf.  (U.  S.)  314,  17  Fed.  Rep.  671. 

A  railroad  employe  while  riding  to  his 
home  on  a  free  pass,  after  the  usual  services 
of  his  employment  were  over  for  the  day, 
was  killed  by  the  negligence  of  the  com- 
pany's servants.  Held,  that  he  was  sub- 
stantially a  stranger  and  entitled  to  all  the 
remedies  he  would  have  had  if  he  had  not 
been  a  servant.  State  v.  IVestern  Md.  R. 
Co.,  21  Am.  &*  Eng.  R.  Cas.  503,  63  Md.  433. 
— Dlstinguishing  Tunney  v.  Midland  R. 
Co.,  L.  R.  I  C.  P.  291  ;  Marshall  v.  Stewart, 
33  Eng.  L.  &  Eq.  i ;  Seaver  v.  Boston  &  M. 
R.  Co..  14  Gray  (Mass.)  466;  Gillshannon  v. 
Stony  Brook  R.  Corp.,  10  Cush.  (Mass.)  228. 
Quoting  Hutchinson  v.  York,  N.  &  B.  R. 
Co.,  6  Railw.  Cas.  580;  O'Donnell  v.  Alle- 
gheny Valley  R.  Co.,  59  Pa.  St.  239.  Re- 
viewing Baltimore  &  O.  R.  Co.  v.  State, 
33  Md.  542 ;  Russell  v.  Hudson  River  R. 
Co.,  5  Duer  (N.  Y.)  39. 

Plaintiff  was  an  employe  and  the  company 
had  given  him  a  pass  over  its  road  bridge. 
Held,  that  in  such  case  it  was  as  much 
bound  in  its  duty  towards  the  passenger  as 
if  it  had  received  him  for  pay.  Pembroke  v. 
Hannibal  Gr'  St.  J.  R.  Co.,  32  Mo.  App.  61, 

17.    expulsion    from    train. — 

Plaintiff  was  ejected  from  a  passenger  train 
while  attempting  to  travel  on  a  pass  to  a 
point  at  which  he  was  to  engage  in  work 
for  the  company.  The  conductor  refused 
the  pass  on  the  ground  that  an  order  had 
been  issued  a  short  time  before  not  to  rec- 
ognize such  passes,  but  it  did  not  appear 
that  plaintiff'  had  any  knowledge  of  such 
order,  but,  on  the  contrary,  believed  hispass 
to  be  valid ;  that  such  passes  had  been  rec- 
ognized up  to  that  time.  Held,  that  the  com- 


PASSES,  18-23. 


943 


'ROVING 
V.  l8l; 
!4  N.  Y. 
).,  25  N. 
&  R.  R. 


pany  was  bound  to  recognize  the  puss  and 
carry  him,  and  it  was  estopped  from  deny- 
ing the  validity  of  the  pass  after  the  holder 
had  accepted  it  from  one  of  the  company's 
agents  in  good  faith.  S/.  Louis,  A.  &'  T. 
A\   Co.  V.  Tucker,  3  Tex.  App.  {Civ,  Cas.) 

390- 

18.  Liability  to  0110  f'ramliilcutly 
ridiiit;  on  anotlivr's  pass.— One  who 

fraudulently  attempts  to  ride  on  a  non-trans- 
ferable pass  issued  to  another  person  is  not 
a  passenger  to  whom  the  carrier  owes  a 
duty  to  carry  safely.  Louisville,  N.  A,  &* 
C.  A\  Co.  V.  Thompson,  27  Am.  «3>»  Etig.  K. 
Cas.  88,  107  Imi.  442.  8  N.  E.  Rep.  18,  9  A^. 
E.  Rep.  357.  57  ^'-»'-  1^«P-  '20. 

The  fact  that  plaintifl  was  traveling  on 
a  pass  at  the  time  of  iier  injury  will  not 
relieve  the  company  from  liability;  and  a 
slight  error  in  inserting  the  name  "  Mrs. 
E.  Price  "  instead  of  "  Mrs.  E.  Rice,"  her 
true  name,  is  not  conclusive  proof  that  she 
was  riding  on  a  ticket  issued  to  another, 
and  therefore  practising  a  fraud  on  the  com- 
pany, so  as  to  release  it  from  liability. 
Rice  V.  Illinois  C.  R.  Co.,  22  ///.  App.  643. 

11).  Liability  to  ouc  riding  on  pass 
illepUly  IssiitMl.— One  who  accepts  and 
uses  a  free  pass  ipsued  by  a  railroad  com- 
pany in  violation  of  the  Pa.  Constitution 
of  1873  and  the  act  of  June  15,  1874  (P.  L. 
289),  does  ncit  thereby  become  a  trespasser. 
Buffalo,  P.  <S->  /F.  R.  Co.  v.  O'Hara,  9  Am. 
<S-  ii//v.  R.  Cas.  317,  3  Penuyp.  (Pa.)  190. 

And  he  may  recover  for  personal  injuries 
notwithstanding  a  condition  in  the  pass 
that  the  person  accepting  it  "assumes  all 
risk  of  accident  to  his  person  or  property 
witiiout  claims  for  damages  on  this  cor- 
poration." Buffalo,  P.  &•  W.  R.  Co.  v. 
O'Hara,  9  Am.  <S-  Eng.  R.  Cas.  317,  3 
Penny (>.  (Pa.)  190. 

IV  CONDITIONS  EXEUFTINO  CABRIEB  FROM 
LIABILITY. 

20.  Nocessity  oi  siBiiature  of  pas- 
senger.*—Although  a  free  pass  coniaming 
a  condition  exempting  the  railroad  from  lia- 
bility for  accidents  .c^uires  that  the  pass 
should  be  signed,  a  person  who  has  accepted 
sucli  pass  and  used  it  is  estopped  to  deny 
that  he  made  the  agreement  releasing  the 
company  from  liability  because  he  did  not 
and  was  not  required  to  sign  it.     (Juimly  v. 


*  Validity  of  clause  in  pass  exempting  car- 
rier from  liabiliiv,  see  notes,  21  Am.  &  Eng.  R. 
Cas    15O  ;  57  Am.  Rep.  388  ;  i  L.  R.  A.  501. 


Bos/oH  &*  M.  R.  Co.,  40  Am.  <&*  Eng.  R. 
Cas.  693,  150  Mass.  365,  5  L.  R.  A.  846,  23 
A'.  E.  Rep.  205.  — Reviewing  New  York  C. 
R.  Co.  V.  Lockwood,  17  Wall.  (U.  S.)  357; 
Griswold  v.  New  York  &  N.  E.  R.  Co.,  53 
Conn.  371  ;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Mc- 
Gown,  65  Tex.  640. 

One  who  received  and  used  a  pass  to  pro- 
cure free  passage  is  held  to  have  consented 
to  the  conditions  indorsed  on  such  pass  to 
the  effect  that  he  assumed  all  risk  of  acci- 
dent, etc.,  as  fully  as  though  he  signed  the 
same.  Gulf,  C.  <S«»  S.  F.  R.  Co.  v.  McGown, 
26  Am.  &•  Eng.  R.  Cas.  274,  65  Tex.  640. — 
Reviewing  Perkins  v.  New  York  C.  R. 
Co.,  24  N.  Y.  196.— Reviewed  in  Quimby 
V.  Boston  &  M.  R.  Co.,  40  Am.  &  Eng.  R. 
Cas.  693,  150  Mass.  365,  5  L.  R.  A.  846,  23 
N.  E.  Rep.  205.  Compare  also  Camden  <3- 
A.  R.  Co.  v.  Bausch,  (Pa.)  28  Am.  <5-  Eng. 
R.  Cas.  142,  7  All.  Rep.  731  ;  affirming  18 
Phila.  {Pa.)  392. 

21.  Valid  in  England.— In  England 
a  carrier  has  full  power  by  stipulation  to 
provide  against  liability,  and  a  condition  in  a 
pass  that  the  passenger  travels  "  at  his  own 
risk"  will  exclude  everything  for  which  the 
company  would  otherwise  have  been  re- 
sponsible. McCawley  v.  Furness  R.  Co., 
L.  R.  8  Q.  B.  57.  Gallin  v.  London  <S* 
N.  W.  R.  Co.,  L.  R.  10  Q.  B.2\2.  Hall  v. 
jXort/t  Eastern  R.  Co.,  L.  R.  10  Q.  B.  437, 

22.  in  Canada.—  Defendant  gave 

a  free  ticket  over  its  railway  in  these  words: 
"  Pass  Captain  James  Sutherland  free  *  ♦  * 
from  the  istof  January,  1857,  to  31st  of  De- 
cember, 1857.  This  ticket  is  not  transfera- 
ble, and  the  person  accepting  it  assumes 
the  risk  of  accidents  and  damage."  The 
holder  was  killed  while  passing  over  the 
railway.  Held,  that  defendant  was  author- 
ized to  enter  into  a  special  contract,  and 
was  not  liable.  Sutherland  v.  Great  West- 
ern R.  Co.,  7  U.  C.  C.  P.  409. 

23.  in  Connecticut.  —  Where  a 

passenger  accepts  a  free  pass  on  a  railroad 
upon  the  express  condition  that  he  will 
make  no  claims  for  damages  for  or  on  ac- 
count of  any  personal  injury  received  while 
using  it,  in  consequence  of  the  negligence 
of  defendant's  servants,  and  by  such  negli- 
gence he  is  killed  in  a  collision,  his  personal 
representative  is  bound  by  the  condition 
and  cannot  maintain  suit  for  damages. 
Griswold  y.  Neni  York  &*  A'.  E.  R.  Co. ,  26 
Am.  &^  Eng.  R.  Cas.  2S0,  53  Conn.  371,  SS 
Am.  Rep.  1 1  5,  4  Ail.  Rep.  261. 


1 

* 


944 


PASSES,  24-3U. 


i  it 


i( 


5  1 

III 


i 

1l' 


1 


I 'A. 


y  J* 


A  company  gave  to  a  boy  a  free  pass  to 
travu!  and  to  sell  sandwiches  and  frtiit  on 
the  trains  for  a  restaurant  keeper,  the  pass 
siipnlatiiif{  tliat  the  company  slumlfl  not  be 
lialjle  for  the  negligence  of  its  servants. 
The  company  derived  no  direct  benefit  from 
his  acts.  When  travelin'^  on  his  pass  to 
visit  his  nKJther,  he  was  kdlcd  thri)uj4h  the 
negligence  of  the  company's  servants.  Held, 
that  no  liability  was  incurred.  Grismold  v. 
Neiv  York  &^  N.  E.  R.  Co.,  26  Ai/i.  &^  A'/Zi,-. 
A'.  Cas.  2S0,  53  Co;ift.  371,  55  yb)/.  Rep.  115, 
4  ////.  Rep.  261.  — Nor  following  Cleve- 
la-id.  P.  &  A.  R.  Co.  V.  Curran,  19  Ohio  St. 
I ;  Mobile  &  O.  R.  Co.  v.  Hopkins,  41  Ala. 
486;  Pennsylvania  R.  Co.  v.  Henderson,  51 
Pa.  St.  315;  Flinn  v.  Philadelphia,  W.  &  B. 
R.  Co.,  I  Houst.  (Del.)  469.  Quoting  New 
York  C.  R.  Co.  v.  Lockwood.  17  Wall.  (U. 
^•)  357.— Approved  in  Bryan  v.  Missouri 
Pac.  R.  Co.,  32  Mo.  App.  228.  Reviewed 
IN  Quimby  v.  Boston  &  M.  R.Co.,40  Am.  & 
Eng.  R.  Cas.  693,  150  Mass.  365,  5  L.  R.  A. 
846,  23  N.  E.  Rep.  205. 

24.  ill  Massachusetts.  —  A  rail- 
road company  which  gives  gratuitously  a 
pass  upon  a  tram  may  stipulate  that  the 
person  accepting  it  shall  assume  all  risk  of 
accident  which  may  happen  while  traveling 
upon  the  train.  Qiiimby  v.  Boston  &*  M.  R. 
Co.,  40  Am.  &•  Etig.  R.  Cas.  693,  i  so  Mass, 
365,  5  L.  R.  A.  846,  23  tV.  E.  Rep.  205. 

25.  ill  New  Jersey.— A  contract 

that  in  consideration  of  free  passage  a  pas- 
senger will  assume  the  risk  of  injuries  to  his 
person  from  the  negligence  of  the  servants 
of  the  railroad  company  is  valid  in  law  ;  and 
a  passenger  who  knowingly  receives  a  free 
ticket  with  an  indorsement  of  such  con- 
tract upon  it  is  bound  by  its  terms  and  can- 
not recover  for  injuries  from  such  negli- 
gence. Kinney  v.  Central  R.  Co.,  34  N.  J 
L.  513;  affirming  yi  N.  J.  L.  407. — DIS- 
TINGUISHING Pennsylvania  R.  Co.  v.  Hen- 
derson, 51  Pa.  St.  315.— Distinguished  in 
Camden  &  A.  R.  Co.  v.  Bausch,  (Pa.)  28 
Am.  &  Eng.  R.  Cas.  142,  7  Atl.  Rep.  731. 
Not  followed  in  Jacobus  v.  St.  Paul  &  C. 
R.  Co.,  20  Minn.  125  (Gil.  no). 

26.  ill  New  York.  —  A  contract 

between  a  carrier  and  a  passenger  who  is 
riding  free  releasing  the  company  from  lia- 
bility under  any  circumstances  for  injury 
that  may  result  through  the  negligence  of 
its  employes  is  not  void  as  agaipst  the  law 
or  public  policy.  Wells  v.  New  York  C.  R. 
Co.,  24  N.  V.  181 ;  affirming  26  Barb.  641. — 


Following  Wells  v.  Steam  Nav.  Co.,  8  N. 
Y.  375.— Criticised  in  Mobile  &  O.  R.  Co. 
V.  Hopkins,  41  .'\la.  486.  Disapproved  in 
Rose  7'.  t)es  Moines  Valley  R.  Co.,  39  Iowa 
246  ;  Pennsylvania  R.  Co.  v,  Henderson,  51 
Pa.  St.  315.  Distinguished  in  Illinois  C. 
R.  Co.  7/.  Read,  37  111.  4S4.  Followed  in 
Bissell  V.  New  York  C.  R.  Co.,  25  N.  Y.  442. 
Not  followed  in  Jacobus  v.  St.  Paul  &  C. 
R.  Co.,  20  Minn.  125  (Gil.  no). 

27.  ill   WasliiiiKtoii.— A   person 

riding  on  a  free  pass  upon  a  street-car  can- 
not recover  for  personal  injuries  caused  by 
the  negligence  of  the  com|)any's  servants 
when  the  pass  contains  conditions  exempt- 
ing the  company  from  all  injuries  resulting 
from  its  negligence.  Muldoon  v.  Seattle 
City  R.  Co.,  58  Am.  &^  Eng.  R.  Cas.  546,  7 
IJ'as/i.  528,  35  Pac.  Rep.  422. 

28.  Void  as  against  public  policy 
in  Indiana.— Where  a  person  traveling 
on  a  railroad  receives  from  the  company  a 
free  pass  upon  which  is  indorsed  a  state- 
ment that  "  it  is  agreed  that  the  person  ac- 
cepting this  ticket  assumes  all  risk  of  per- 
sonal injury  and  loss  or  damage  to  property 
whilst  using  the  same  on  the  trains  of  the 
company,"  such  indorsement  or  agreement 
does  not  cast  upon  such  person  any  risks 
arising  from  the  gross  negligence  of  the  ser- 
vants of  the  company  in  running  the  train; 
and  it  would  seem  that  such  agreement  does 
not  cast  upon  such  person  any  risks  arising 
from  any  negligence  of  the  servants  of  the 
company  in  running  the  train.  Indiana  C. 
R.  Co.  V.  Mundy,  21  Ind.  48.— Quoting 
New  Jersey  Steam  Nav.  Co.  v.  Merchants' 
Bank,  6  How.  (U.  S.)  344 ;  Wells  v.  Steam 
Nav.  Co.,  8  N.  Y.  375. — Criticised  in 
Mobile  &  O.  R.  Co.  v.  Hopkins,  41  Ala. 
486.  Followed  in  Jacobus  v.  St.  Paul  & 
C.  R.  Co.,  20  Minn.  125  (Gil.  no).  See  also 
Ohio  &*  M.  R.  Co.  V.  Selby,  47  Ind.  47 1 ,  17 
Am.  Rep.  719.  Louisville,  N.  A.  &^  C.  R.  Co. 
V.  Fay  lor,  1 26  Ind.  1 26.    Kncnvlton  v.  Erie  R. 

Co.,  19  O/iio  St,  260,  2  Am.  Rep.  395.     New 

York  C.  R.  Co.  V.  Lockwood,  17  Wall.  {(/. 
5.)  357.  But  see  Griswoldv.  New  York  &' 
N.  E   P.  Co.,  26  Am.  &•  Eng.  R.  Caj.'28o, 

53  Conn.  371,  55  Am.  Rep.  ns,  4  Atl.  Rep. 

261. 

29.  iu  Iowa.— A  carrier  is  liable 

for  causing  the  death  of  a  passenger  by  the 
negligence  of  its  employes,  notwithstand- 
ing he  was  at  the  time  riding  upon  a  free 
pass  upon  which  was  a  stipulation,  signed 
by  himself,  releasing  the  company  from  all 


PASSES,  30-37. 


945 


liability  for  injury  to  his  person  or  property 
while  using  the  same.  Kose  v.  Des  Moiiifs 
Valley  A*.  Co.,  39  Iowa  246. 

30.  ill  MiNMissippi.— The  accept- 
ance of  a  "  free  tici;La"bya  railroad  mail 
agent  conditioned  lliat  he  shall  take  ail  risk 
of  injury  on  such  road  is  not  a  waiver  of  iiis 
right  to  damages  for  an  injury  occasioned 
by  tlie  negligence  of  the  company's  ser- 
vants, for,  as  the  company  receives  compen- 
sation from  the  government  for  transport- 
ing the  mail  agent,  such  waiver  would  be 
without  consideration  and  against  jjublic 
policy.  Illinois  C.  If.  Co.  v.  Crtidup,  63 
Miss.  2 9 1.' 

31.  ill  Missouri.  — Plaintiff  was  a 

passenger  upon  a  free  pass  expressly  con- 
ditioned liiai  the  person  accepting  it  as- 
sumed all  risks  of  accident  and  damages 
without  claim  upon  the  company.  Held, 
that  the  conditions  of  the  pass  did  not 
shield  defendant  from  the  consequences  of 
its  own  negligence.  Bryan  v.  Missouri 
Pac.  R.  Co.,  32  Mo.  App.  228.— Approving 
Griswold  v.  New  York  «i:  N.  E.  K.  Co.,  53 
Conn.  371  ;  Annas  v.  Milwaukee  &  N.  R. 
Co.,  67  Wis.  46. 

32.  ill  Peniisylvauia.  —  A    free 

pass  containing  an  express  release  of  the 
liability  of  a  railroad  company  for  all  dam- 
ages on  account  of  injury  to  the  person  of 
the  holder,  although  accepted  and  used, 
does  not  relieve  the  company  from  liability 
as  a  common  carrier  for  negligence.  Buf- 
falo, P.  &*  W.  li.  Co.  V.  O'Hara,  9  Am.  &* 
Eng.  K.  Cas.  317,  3  Pennyp.  {Pa.)  190. 

33.  ill  Texas.— A  public  carrier  of 

passengers  cannot  so  contract  as  to  relieve 
itself  from  liability  for  an  injury  to  a  pas- 
senger riding  on  a  free  pass  from  the  negli- 
gence of  the  carrier  or  its  servants  in  the 
course  of  their  employment.  Gulf,  C.  &•  S. 
F.  li.  Co.  V.  McGown,  26  Am.  <S-  Eng.  K* 
Cas.  274,  65  Tex.  640. 

34.  Exemption  from  liability  for 
{^ross  iieglii^eiice. — A  provision  in  a  free 
pass  that  a  passenger  will  not  hold  the  com- 
pany liable  for  injuries  received  '  under  any 
circumstances,"  whether  the  result  of  the 
negligence  of  its  agents  or  otherwise,  does  not 
exempt  the  company  from  liability  for  an 
injury  which  is  the  result  of  gross  negli- 
gence, but  exempts  it  from  injuries  result- 
ing from  any  lower  degree  of  negligence. 
Illinois  C  K.  Co.  v.  Bead,  37  ///.  484.  87  Am. 
Dec.  260.— Followed  in  Jacobus  v.  St. 
Paul  &  C.  R.  Co..  20  Minn.  125  (Gil.  no).— 

6  D.  R.  D.— 60 


C/iicJi;o,  P.  &>  N.  /?.  Co.  V.  lliiwk,  36  III- 
App.  ^27.  ^liiitas  v.  Milwaukee  &^  N.  A'. 
Ci>.,  2/  /fw.  t!.~  Eug.  A'.  Ciis.  \oi,  67  //V.f, 
46,  30  xV.  jr.  Rep.  2S2,  57  Am.  Rep.  3SS,  n. 
^yu(rn.\(;  Illinois  C.  H.  Co.  t'.  Morrison, 
19  111.  136.  Rkvikwing  Jacobus  v.  St. 
I'aul  &  C.  \\.  Co.,  20  Minn.  125;  Morrison 
V.  Phillips  &  C.  Coiistr.  Co.,  44  Wis.  405  ; 
Western  &  A.  R.  Co.  v.  Bishop,  50  Ga.  473. 
— Approvkd  in  Bryan  v.  Missouri  Pac.  R, 
Co.,  32  Mo.  App.  228.  • 

Some  courts,  conceding  the  right  of  the 
carrier  to  stipulate  for  exemption  in  cases 
of  ordinary  negligence,  refuse  to  apply  the 
principle  in  cases  of  gross  negligence.  To- 
ledo, \V.  &^  W.  R.  Co.  V.  Beggs,  85  ///.  80, 
28  Am.  Rep.  613.  Jacobus  v.  St.  Paul  S^  C. 
R.  Co..  20  Minn.  425,  18  Am.  Rep.  360. 
Pennsylvania  R.  Co.  v.  McCloskey,  23  Pa. 
St.  526. 

35.  E.veiiiptiiifi;  from  liability  for 
iictKli^eiu'e  of  oflieers  and  directors. 
— Still  others  hold  that  such  a  stipulation 
will  protect  the  carrier  against  the  negli- 
gence of  any  of  its  servants  and  agents 
other  than  its  managing  officers  or  direc- 
tors, the  latter  being  regarded  as  identical 
with  the  corporation  itself.  Welles  v.  New 
York  C.  R.  Co.,  26  Barb.  (N.  Y.)  641.  24  N. 
Y.  181.  Perkins  v.  New  York  C.  R.  Co.,  24 
N.  Y.  196,  82  Am.  Dec.  282.  Kinney  v.  Cen- 
tral R.  Co..  32  N.  J.  L.  407.  34  A^.  /.  Z.  513. 

30.  Itiilc  vvlierc  pass  was  given  for 
a  consideration,  not  a  gratuity.— 
Plaintiff  was  injured  while  riding  on  a  train  of 
defendant  in  the  state  of  New  Jersey.  Un- 
der the  law  of  New  Jersey  a  passenger  loses 
his  right  of  recovery  in  case  of  injury  re- 
sulting from  the  negligence  of  the  carrier 
if  he  accepts  and  uses  a  pass  containing  a 
provision  or  notice  that  the  person  accept- 
ing and  using  it  thereby  assumes  all  risk  of 
accident  and  damage  to  person  and  bag- 
gage. Held,  that  neither  in  New  Jersey  nor 
anywhere  else  will  a  railroad  company  be 
exempt  from  liability  for  negligence  by  rea- 
son of  a  mere  notice  or  declaration  upon  a 
pass  or  ticket  when  it  appears  that  it  was 
not  a  gratuity,  but  was  founded  upon  an  ac- 
tual consideration.  Baush  v.  Camden  &» 
A.  R.  Co.,  18  Pkila.  (Pa.)  392.— Reviewing 
Railroad  Co.  v.  O'Hara,  12  W.  N.  C.  473. 

37.  Rule  wliere  person  rides  at  re- 
quest of  or  for  the  benefit  of  carrier. 
—It  is  correct  to  instruct  a  jury  that  if 
plaintiff  was  lawfully  on  the  road  at  the 
time  of  the  collision,  and  the  collision  and 


s 

a. 


■ 


94G 


PASSES,  38,  30.— PATENTS   FOR   INVENTIONS. 


;  > 


consequent  injury  to  him  were  caused  by 
tiic  gross  ncj;li|;cnce  of  the  servants 
of  the  company,  he  is  entitled  to  recover 
notwitiistuiKJiii^  tlie  facts  tiiut  lie  was  u 
stocl<liol(ier  in  the  company,  and  riding 
by  invitation  of  the  president,  paying  no 
fare,  and  not  in  the  usual  passenger-cars. 
I'liiliulilftltiii  d^  A'.  A'.  Co.  V.  Derby,  14  HiAv. 
(  / '.  .s.)  468. 

I'laintid  was  the  owner  of  a  patented  car 
ctjiipiing,  and  was  negotiating  with  defend- 
ant company  for  its  adopii(jn  by  the  latter, 
and  was  given  a  pass  and  requested  to  go 
over  the  road  to  see  the  diflerent  officers  of 
tile  company.  Tlie  pass  contained  a  condi- 
tion tJKit  the  liolder  assumed  ail  risk  of 
accident,  and  expressly  agreed  that  the 
company  should  not  be  liable  under  any  cir- 
cumstances for  an  injury  to  his  person  or 
property.  Held,  that  there  was  a  consider- 
ation for  the  issuing  of  the  pass,  which 
entitled  plaintifT  to  the  rights  of  a  passen- 
ger for  hire,  and  that  he  was  not  bound  by 
the  conditions  printed  on  the  ticket.  Grand 
Trunk  A'.  Co.  v.  Sterens.^l  U.S.  655.— DlS- 
TlN(;uisllKi)  IN  Fonseca  w.  Cunard  Steam- 
ship Co.,  153  Mass.  553.  Followed  in 
Eells  V.  St.  Louis,  K.  &  N.  VV.  R.  Co.,  52 
Fed.  Rep.  903. 

38.  Effect  <tf'|MircIiase  of  ticket  for 
drawing:- room  car.— A  stipulation  in  a 
free  pass  exempting  the  company  issuing  it 
from  all  liability  for  personal  injuries  to 
the  person  using  it  is  not  abrogated  by  the 
purchase  of  a  ticket  entitling  the  holder  of 
the  pass  to  occupy  a  drawing-room  car 
during  the  journey.  Ulricli  v.  A'cw  York  C. 
&>  H.  A*.  K.  Co.,  34  //;;/.  Qr' Kn^r,  A'.  Cas. 
350,  108  A'.  Y.  80.  15  A'.  E.  Rep.  60,  13 
N.  Y.  S.  A'.  1 20 ;  reversing  1 3  Daly  \  29. 
—  Distinguishing  Thorpe  v.  New  York 
C.  &  H.  R.  R.  Co.,  76  N.  Y.  402. 

3f>.  Validity  of  such  condition  in 
pass  of  mail  agent.— A  railroad  com- 
pany owes  the  same  deg.ree  of  care  to  mail 
aj^ents  riding  in  postal  cars  in  charge  of  the 
United  States  mailsas  it  does  to  passengers. 
Hey  bolt  V.  New  York,  L.  E.  «S-  W.  R.  Co.,  18 
yUn.  &•  Eng.  K.  Cas.  162,  95  A'.  Y.  562,  47 
Jim.  Hep.  75  ;  affirming  31  Httn  100. 

A  mail  agent  was  killed  while  riding  on 
a  pass  Issued  for  his  use  by  the  company, 
■which  contained  a  stipulation  exempting 
the  company  from  liability  for  any  injury 
that  resulted  from  its  negligence.  Held, 
that  the  United  States  statutes  which  au- 
thorize the  government  to  contract  for  the 


transportation  of  mail  ag(ents  do  not  au- 
thorize a  contract  exempting  the  company 
from  liability  for  injuries  to  the  agent ;  and, 
such  condition  being  unauthorizeri  and  void, 
the  company  was  liable  fcjr  an  accident  re- 
sulting from  its  negligence,  Scyboltv.  New 
York,  L.  E.  &^  VV.  R.  Co.,  18  Am.  <S-  Eng. 
R.  Cas.  162,  95  N.  Y.  562,47  Am.  Rep.  75  ; 
affirming  31  Hun  100. 


PASSWAY. 

Over   tracic,    reservation     of,   in  deed,  see 
Dekds,  43. 


EAST  DAMAGES. 
Trial  of,  by  jury,  issues  as  to,  see  Elevated 
Railways,  171. 


PASTURAOE. 

Amount  recoverable  for  injury  to,  by  fire,  see 
FiKKs,  345. 

Injuries  to,  from  failure  to  build  and  main- 
tain fences,  see  Fences,  104. 

Measure  of  damages  for  injuries  to,  see 
Fences,  1  lO. 


PASTURE. 

Damages  for  injuries  to,  by  failure  to  build 
or  repair  cattle-guards,  see  Cattle- 
guards,  33. 


PATENT  DEFECTS. 

Assumption  of  risk  as  to,  see  Employes,  In- 
juries to,  20(t-215. 

Company  not  bound  to  instruct  employe  asi 
to,  see  Emi'ioy^s,  Injuries  to,  30. 


PATENTS. 

For  land  granted,  withholding,  until  paytnent 

,        of  cost  of  survey,  see  Land  Grants,  <I1. 

For  land,  surveys  when  have  eiTect  of,  see 

Public  Lands,  2G. 
For  the  public  lands,  see  Public  Lands,  33- 
37. 


PATENTS  FOR  INVENTIONS. 

I.  WHAT  IB  PATENTABLE 947 

II.  ISSUING  AND  OBTAINING  PATENTS.  949 

III.  VARIOUS     CONTBACTS     IN70LVINO 

PATENT   RIGHTS 949 

IV.  INFRINGEMENT.     AND     REMEDIES 

THEREFOR 951 

V.  DECISIONS    RELATIVE    TO  PARTIC- 
ULAR PATENTS... 954 


1^ 


I 


PATKNTS    lOR    INVKNTlONS,   14. 


NT 


I.  WHAT  IB  PATENTABLE. 

1.  Ill  KCiK'i-ill  -  Uflllt.v.  —  PlaiiitifT 
sued  for  iiii  iiifringcincnt  of  a  [Uiti'iit  on  a 
machine  for  leforniiiig  the  ends  of  worn 
rails,  and  defendant  claimed,  anionj;  other 
things,  that  there  was  no  evidence  of  utii- 
iiy,  l)ut  the  evidence  siiowcd  tliat  defendant 
had  been  maiuifactiirinnr  and  using  the  ma- 
ciiiiies  for  a  consideral)le  time.  //»•/</,  that 
tliis  was  evidence  in  itself  of  utility.  Tiir- 
rill  v.  lllinoh  C.  A'.  Co.,  3  /i/ss.  (U.  S.)  66. 

Thou),'h  rails,  chairs,  lish  plates,  and  screw 
bolts  had  long  been  used  separately  on  rail- 
roads, still  the  combination  used  in  the  im- 
proved chair  for  preventing  bolts  or  nuts 
used  Ml  htacing  and  joining  together  iron 
rails  from  becoming  loose  or  insecure,  pat- 
<:nted  to  Thomas  Fogg,  May  2,  1864,  ef- 
fected a  new  purpose,  and  was  patentable. 
Yates  V.  Great  Western  K.  Co.,  24  Grant 's 
C'/t.  {U.  C.)495. 

2.  Liu'k  of  invention.  —  A  device 
which  displays  only  the  expected  skill  of 
the  maker's  calling,  and  involves  only  the 
exercise  of  the  ordinary  faculties  of  reason- 
ing upon  materials  supplied  by  special 
knowledge,  and  facility  of  manipulation  re- 
sulting from  habitual  intelligent  practice,  is 
in  no  sense  a  creative  work  of  inventive 
faculty,  and  is  therefore  not  patentable. 
Hol lister  v.  licnedict  &*  B.  Mf};.  Co.,  i\i  U. 
S.  59,  5  Sup.  Ct.  Rep.  717. 

The  following  inventions  held  no'  patent- 
able for  want  of  invention  :  The  invention 
I)ateiited  Sept.  16,  1873,  to  John  A.O'Haire, 
consisting  of  a  combination  of  devices  by 
which  the  rear  dofir  of  a  street-car  could  be 
opened  and  closed  by  the  driver  from  the 
front  platform  in  order  to  let  passengers  in 
or  out  of  the  car.  Stephenson  v.  Brooklyn 
Cross- Town  R.  Co.,  1 14  U.  S.  149,  5  Sup.  Ct. 
Rep.  777. 

And  the  patent  granted  to  said  O'Haire, 
March  30,  1875,  ^or  "  an  improvement  in  sig- 
naling devices  for  street-cars  "  whereby  pas- 
sengers, by  means  of  cords  or  straps  at- 
tached to  bells  or  gongs,  might  signal  the 
driver  without  risiiig  from  their  seats. 
Stephenson  v.  Brooklyn  Cross- Town  R.  Co., 
114  t/.  iT.  149,  s  Sup.  Ct.  Rep.  777. 

The  patent  granted  to  John  Stephenson, 
Sept.  7,  1875,  which  consists  of  a  mirror  so 
arranged  that  the  driver  of  a  street-car  may 
see  what  goes  on  in  the  car  behind  him  is 
but  a  combination  of  well-known  elements. 
Stephenson  v.  Brooklyn  Cross-Town  R,  Co., 
114  U.  S.  149,  5  Sup.  Ct.  Rep.  777. 


The  i)atcnt  granted  to  Augustus  Day, 
Aug.  27.  i«7«,  for  a  horse-iailway  track 
cleaner  or  snow  plow.  /)iiy  v.  /■'.///  Haven 
Sr*  W.  R.  Co.,  2},  I- id.  Ref>.  i«y  ;  ajjirmed  in 
132  U.  S.  98,  10.S'///.  Ct.  Rep.  II. 

The  patent  granted  Nov.  18,  1884,  to  Ed- 
ward S.  Richards  for  "a  grain-transferring 
api)aratus "  is  but  a  combination  of  old 
jiarts,  with  nothing  new  in  the  combination. 
Richard'^  v.  Miclii^an  C.  R.  Co.,  40  Fed. 
Rep.   165. 

Patents  Nu^^  339.913  and  314,459,  granted 
for  an  im[iroveiiieiit  in  car  trucks,  but  in 
fact  onl,-  an  attemptefl  imMiovement  in  ( ar- 
truck  I  ulsters.  Mc(\7  ty  v.  Lehigh  I'all-y 
R.  Co..  43  Fed.  AV/).  384. 

3.  PutoiitisMe  novelty.  —  In  trucks 
already  ii.  use  on  railroad  cars  the  king  holt 
which  held  the  car  to  each  truck  passed 
through  a  boli^tcr  supjwrting  the  weight  of 
the  car,  and  through  an  cI'Migated  opening 
in  the  plate  below,  so  as  to  allow  the  swivel- 
ing  of  the  trur.Ii  upon  the  bolt,  and  lateral 
motion  in  the  truck;  and  the  bolster  was 
suspended  by  divergent  pendent  links  from 
brackets  on  the  frame,  whereby  the  weight 
of  the  car  tended  to  counteract  any  ten- 
dency to  depart  from  the  line  of  the  track. 
Held,  x.\\At  a  patent  for  employing  such  a 
truck  .T3  the  forward  truck  of  a  locomotive 
engine  with  fixed  driving  wheels  was  void 
for  want  of  novelty.  Pennsylvania  R.  Co. 
v.  Locomotive  F..  S.  Truck  Co.,  wo  U.  S. 
490,  4  Sup.  Ct.  Rep.  220 ;  reversing  2  Fed. 
Rep.  677,  10  Phila.  (Pa.)  252. 

The  patent  issued  to  William  W.  Rosen- 
field,  Nov.  13,  1883,  for  a  device  for  closing 
the  gates  of  street-cars  as  passengers  get  on 
or  off,  especially  designed  for  elevated  rail- 
ways, is  void  as  not  possessing  ?iny  patenta- 
ble novelty.  Aron  v.  Manhattan  R.  Co.,  26 
Fed.  Rep.  314;  affirmed  in  132  U.  S.  84,  10 
Sup.  Ct.  Rep.  24. 

The  patent  issued  to  Facer  &  Shaub,  Feb. 
6,  1883,  for  "a  device  for  manufacturing 
car  tires  "  is  invalid  as  possessing  nothing 
that  is  novel  or  new.  Facer  v.  Midvale 
Steel-  Work  Co.,  38  Fed.  Rep.  231. 

The  patent  issued  to  Asa  E.  Hovey,  Sept. 
18,  1877,  for  "an  improvement  in  endless- 
rope  traction  or  cable  railways  "  is  void  as 
not  possessing  any  patentable  novelty.  Na- 
tional Cable  R.  Co.  v.  Mt.  Adams  <S^  E.  P. 
I.  R.  Co.,  38  Fed.  Rep;  840. 

4.  Anticipation.— The  patent  issued 
to  Kearney  &  Tronson,  April  11,  1871,  for 
improvements  in  spark  arresters  on  locomo- 


S 

« 
•I 

a 

•» 

% 


;  %  ■■ 


948 


PATENTS    FOR    INVENTIONS,  5,6. 


li     I 


|f;^ 


lives,  the  spark  arrester  being  placed  in  the 
smokestack,  was  not  anticipated  liy  the  pat- 
ent issued  to  J.  Smitli,  on  Marcii  7,  1871,  as 
plaintitT's  patent  was  applied  for  before  the 
other.  The  date  of  the  application,  if  it 
describes  the  invention  stifiiciently,  is  con- 
clusive evidence  of  the  date  of  the  inven- 
tion. Kearney  v.  Lehigh  Valley  R.  Co.,  32 
Fed.  Rep.  320. 

The  patent  issued  to  William  Eppel- 
sheiiner,  March  16,  1875,  for  an  improve- 
ment in  an  apparatus  for  connecting  street- 
cars '■  with  endless  traveling  devices,"  con- 
sisting of  a  combination  for  connecting  a 
street-car  or  other  vehicle  with  an  endless 
moving  rope  or  cable  for  moving  the  same, 
and  composed  of  a  movable  jaw  and  a  trans- 
verse bar  carrying  pulleys,  was  not  antici- 
pated by  the  patent  to  Andrew  S.  Hallidie, 
granted  July  16,  1872,  which  answers  the 
same  practical  purpose,  but  is  so  different  in 
arrangement  and  operation  as  not  to  be  sub- 
stantially the  same.  Root  v.  Third  Ave.  R. 
Co.,  39  Fed.  Rep.  281;  affirmed  in  146  U. 
S.  210,  13  Sup.  Ct.  Rep.  ICO.— Referred 
TO  IN  Root  V.  Sioux  City  Cable  R.  Co.,  42 
Fed.  Rep.  500. 

A  spark  arrester  and  consumer  for  loco- 
motives which  consists  in  the  combination 
of  a  blast  pipe  with  a  return  flue  so  arranged 
that  the  sparks  are  driven  by  the  blast  in  a 
continuous  current  throi'gh  the  flue  from 
the  smokepipe  back  into  the  fire  chamber 
without  resting  is  not  anticipated  by  prior 
spark  arresters  which,  though  in  some  re- 
spects of  construction  the  same,  were  not 
practically  effectual  to  produce  a  continuous 
current  carrying  the  sparks  into  the  fire 
chamber  without  resting.  Pike  v.  Provi- 
dence Sf  W.  R.  Co.,  I  Holmes  (U.  S\  445. 

5.  Mechanical  equivalents.  —  Tlie 
doctrine  of  equivalents  should  be  critically 
scanned  where  there  may  be  a  diiTerence  in 
relation  to  two  car  brakes,  which,  in  some 
respects,  operate  by  equivalent  devices,  and 
in  other  respects  do  not,  to  ascertain  wheth- 
er one  has  become  a  practical  machine, 
while  the  other  is  not.  S(tyles  v.  Chicago 
6-  A'.  IV.  R.  Co.,  I  Biss.  ( [/.  S.)  468. 

A  diilerent  arrangement  of  parts  which 
possesses  no  special  advantage  over  a  well- 
known  and  existing  device  is  not  patentable. 
Thus  the  lower  bar  of  a  car  bolster  which 
merely  has  its  ends  turned  up  and  back  so  as 
to  support  the  upper  bar  is  equivalent  to  a 
flange  attached  to  the  lower  bar  which  ef- 
fects the  same  purpose,  and  where  the  latter 


is  already  known  the  former  is  not  patenta- 
ble. McCarty  v.  Lehigh  Valley  R.  Co.,  43 
Fed.  Rep.  384. 

O.  l*rit»r  public  use— Plaintiflf  sued 
for  an  infringement  of  a  patent  for  "  an  im- 
provement in  the  construction  of  cable  rail- 
ways." The  defense  was  that  the  patent 
was  in  public  use  more  than  two  years  be- 
fore the  application,  and  ^therefore  invalid. 
Plaintifif  claimed  that  the  use  was  experi- 
mental. The  proofs  showed  that  the  inven- 
tion was  put  in  operation  some  two  years 
after  its  discovery,  and  regularly  u.sed  on  a 
road  of  which  plaintiff  was  superintendent 
for  some  three  years  before  the  application, 
and  no  changes  were  ever  made.  Held,  that 
such  u,;e  was  not  experimental,  but  was  such 
a  public  use  as  to  defeat  the  patent.  Root 
V.  Third  Ave.  R.  Co.,  146  i/.  5.  210,  13  Sup.  , 
Ct.  Rep.  loo  ;  affirming  39  Fed.  Rep.  281. 

When  an  improvement  or  a  machine  has 
been  once  made  and  used,  it  is  not  neces- 
sary that  it  should  be  used  up  to  the  time 
that  another  person  may  make  a  similar 
improvement.  If  it  has  been  once  used  and 
is  a  practical  improvement  or  machir^e,  no 
one  else  can  claim  to  be  the  inventor. 
Sayles  v.  Chicago  &*  N.  W.  R.  Co.,  i  Biss. 
{U.  5.)  468. 

The  law  allows  an  inventor  a  reasonable 
time  to  perfect  his  invention  by  experiment 
and  ascertain  its  utility  before  it  obliges 
him  to  take  out  his  patent ;  and  m  the  case 
of  plaintiff's  invention  experiments  could 
be  made  only  by  putting  the  car  into  the  ser- 
vice of  those  controlling  lines  of  railroads. 
In  applying  the  rule  a  jury  must  take  into 
consideration  the  nature  of  the  invention 
and  all  the  circumstances  of  the  case.  But 
an  inventor  is  bound  to  act  in  good  faith, 
and  must  not  suffer  his  invention  to  be  used 
except  for  the  purposes  of  experiment.  Wi- 
nans  v.  Schenectady  &•  T.  R.  Co.,  2  Blatchf. 
{U.  S.)  279. 

PlaintiiT  sued  for  an  infringement  of  a 
patent  for  "  a  fare  register  "  for  street-cars, 
and  the  defendant  set  up  as  a  defense  a  public 
use  for  more  than  two  years  prior  to  the 
application.  The  evidence  showed  that  the 
public  use  was  upon  street-cars,  in  the  only 
manner  which  it  could  conveniently  be  used 
for  the  purpose  of  actual  experiment  to  as- 
certain the  best  mode  of  construction.  Held, 
that  this  was  allowable  and  did  not  consist 
of  a  public  use.  Railway  Register  Mfg.  Co, 
v.  Broadway  &*  S.  A.  Ji.  Co.,  22  Fed.  Rep. 
655. 


PATENTS   FOR   INVENTIONS,  7-11. 


t  patenta- 
h\  Co.,  43 

ntiff  sued 
r  "  an  im- 
cable  rail- 
.he  patent 

years  bo- 
re invalid, 
as  experi- 
the  inven- 
two   years 

used  on  a 
rintendent 
pplication, 

HM.  that 
It  was  such 
;ent.  A'oot 
lo,  13  Sup.  , 
iep.  281. 
achine  has 
not  neces- 
3  the  time 
z  a  similar 
;e  used  and 
lachit'C,  no 
;  inventor. 
Co.,  \  Biss. 

reasonable 
experiment 

it  obliges 
in  the  case 
lents  could 
nto  the  ser- 
if railroads. 
,t  take  into 
e  invention 

case.  But 
good  faith, 
1  to  be  used 
ment.  Wi- 
.,  i  Blatchf. 

jement  of  a 

street-cars, 

:nse  a  public 

prior  to  the 

wed  that  the 

in  the  only 

:ntly  be  used 

iment  to  as- 

ction.  Held, 

not  consist 

ier  Mfg.  Co, 

!2  Fed,  Rep, 


Plaintiff  in  the  specification  of  his  patent . 
claimed  as  his  invention  "an  improvement 
in  the  construction  of  the  axles  or  bearings 
of  railway  or  other  wheeled  carriages,"  and 
it  appeared  that  the  improvement,  though 
it  had  never  before  been  applied  to  railway 
carriages,  was  well  known  as  applied  to 
other  carriages.  Held,  that  the  patent  was 
not  good.  Winans  v.  Boston  <S<»  P.  R.  Co., 
2  Story  {U.  S.)  412. 

II.  ISSUING  AND  OBTAINING  PATENTS. 

7.  Specifications— Delay  in  patent 
office. — Patentees  cannot  be  lield  account- 
able for  the  delays  in  the  patent  office,  the 
law,  by  its  terms,  providing  for  the  perfec- 
tion of  imperfect  and  insufficient  specifica- 
tions even  after  the  patent  issues.  Sayles 
V.  Chicago  &'  N.  W.  N.  Co.,  i  Biss.  (U.  S.) 
468. 

8.  Drawinj^s. — A  patent  issued  in  1834 
had  no  drawings  annexed  to  it,  and  the 
specification  contained  no  reference  to  any 
drawings.  It  was  recorded  anew  in  June, 
1837,  under  the  act  of  March  3,  1837  (5  U.  S. 
St.  at  L.  191),  and  a  drawing,  verified  by 
the  oath  of  the  patentee  under  section  i  of 
tlie  act,  was  filed  in  November,  1838.  Held, 
that  a  certified  copy  of  such  drawing  was 
admissible  in  evidence  under  section  2  of 
said  act,  in  connection  witii  certified  copies 
of  tlie  patent  and  specification,  and  that  tiie 
whole  together  were  prima  facie  evidence 
of  the  particulars  of  the  invention  and  of 
the  patent  granted  therefor.  Winans  v. 
Schenectady  Sm  T.  B.  Co.,  2  Blatchf.  ( U.  S.) 
279. 

As  a  general  rule,  such  a  drawing  cannot 
be  used  to  correct  any  material  defect  in 
the  specification  unless  it  corresponds  with 
a  drawing  filed  with  the  original  specifica- 
tion for  tKe  patent ;  otherwise,  in  case  of 
discrepancy,  the  specification  must  prevail ; 
nor  can  such  a  drawing  have  the  same  force 
and  effect  as  if  it  had  been  referred  to  in 
the  sperification,  nor  is  it  to  be  deemed  and 
taken  as  part  of  tlie  specification.  Winans 
v.  Schenectady  6-  T.  K.  Co.,  .  BlUchf. 
{U.  .v.)  279. 

i).  The  claim.— The  scope  of  a  patent 
should  be  limited  to  the  invention  covered 
by  the  claim,  and  though  the  claim  may  be 
illustrated,  it  cannot  be  enlarged,  by  lan- 
guage used  in  other  parts  of  the  specifica- 
tion. Lehigh  Valley  K.  Co.  v.  Mellon,  104 
U.  S.  112.  ' 


Where  it  becomes  important  for  the  court 
to  determine  what  is  covered  by  letters 
patent,  the  court  may  look  to  the  claim 
made  by  the  patentee.  Lehigh  Valley  R, 
Co.  V.  Mellon,  104  U.  S.  112. 

The  claim  of  the  patent  granted  Oct.  i, 
1834,  to  Ross  Winans  for  an  improvement 
in  the  construction  of  cars  is  "the  before- 
described  manner  of  arranging  and  connect- 
ing the  eight  wheels  which  constitute  the 
two-bearing  carriages  with  a  railroad  car  so 
as  to  accomplish  the  end  proposed  by  the 
means  set  forth,  or  by  any  others  which  are 
analogous  and  depend  upon  the  same  prin- 
ciples." Held,  that  the  claim  is  for  a  car 
which  is  constructed  after  the  manner  of 
the  patent,  and  evidence  that  certain  parts 
of  it  were  known  before  does  not  affect  the 
novelty  of  the  invention.  Winans  v.  Sche- 
nectady <&-  T.  R.  Co.,  2  Blatchf.  (U.  S.)  279. 

10.  Disclaimer.  —  The  specifications 
accompanying  the  English  patent  issued  to 
William  Maylor,  July  21,  1863,  for  an  im- 
provement in  steam  safety  valves  contains 
the  statement :  "  By  this  means  lam  enabled 
to  avail  myself  of  the  recoil  action  of  the 
steam  against  the  valve,  for  the  purpose  of 
facilitating  the  further  lifting  of  such  valve 
when  once  opened  ;  but  I  wish  it  to  be  un- 
derstood that  I  lay  no  claim  to  such  recoil 
action,  nor  to  the  extension  of  the  valve 
latterly  beyond  its  seat."  Subsequently  a 
patent  was  issued  in  the  United  States  to 
plaintiff  Ashcroft,  assignee  of  said  Maylor, 
without  any  disclaimer.  Held,  that  the  dis- 
claimer in  the  English  patent  showed  that 
the  patentee  was  not  the  first  person  to 
discover  the  means  of  using  the  recoil  action 
of  the  steam,  and  that  the  American  patent 
must  be  limited  to  the  other  elements  of 
the  device.  Ashcroft  v.  Boston  &•  L.  R. 
Co.,  97  [/.  S.  189. 

III.   VARIOUS  CONTRACTS  INVOLVING 
PATENT  RIGHTS. 

1 1.  In  {general.  —  A  person  who  ap- 
proves of  a  patented  right,  but  refuses  to 
pay  the  price  charged  for  it,  is  inexcusable 
for  using  it.  Simpson  v.  Mad  River  R.  Co., 
6  McLean  {(/.  S.)  603. 

The  fact  of  use  is  evidence  of  its  utility, 
and  should  subject  the  defendant  to  dam- 
ages. Simpson  v.  Mad  River  R.  Co.,  6  Mc- 
Lean (U.  S.)  603. 

When  a  ship  carpenter  for  his  own  private 
yard    invents    an    improvement    in    marine 


s 


950 


PATENTS   FOR   INVENTIONS,  12,  13. 


U 


■( 


*»». 


M 


railways,  but  before  applying  for  a  patent 
he  goes  into  the  government  service,  and 
the  invention  is  adopted  by  the  government 
with  the  inventor's  consent,  and  with  knowl- 
edge that  he  intends  to  take  out  a  patent, 
and  with  the  understanding  that  if  it  suc- 
ceeds he  shall  be  paid  a  royalty,  a  contract 
may  be  implied.  Falbert  v.  United  States, 
25  Ct.  of  CI.  141.— Distinguishing  Solo- 
mon V.  United  States,  22  Ct.  of  CI.  342. 

12.  AHsi{;iiiiieiit8.  —  Plaintiff  had 
granted  a  railroad  company  the  right  to  use 
a  patent  brake  on  its  "  own  cars "  only. 
Afterwards  the  road  became  indebted  to  de- 
fendant, and  it  granted  to  him  the  right  to 
operate  the  road  and  to  receive  the  reve- 
nues, and  to  apply  the  net  income  of  the 
road  to  the  payment  of  his  debt.  Held, 
that  defendant  was  not  liable  to  plaintiff  for 
an  infringement  of  the  patent,  as  he  only 
operated  the  road  as  the  agent  of  the  com- 
pany. Emigu  v.  Chamberlain,  i  Biss.  {U. 
5.)  367. 

The  owner  of  a  patented  improvement  on 
brakes  assigned  it  to  a  railroad  company 
"  for  and  during  the  term  for  which  said 
letters  patent  are  or  may  be  granted,"  with 
the  right  to  make,  construct,  and  use  the 
same.  The  patent  was  extended  for  a  sec- 
ond term.  Held,  that  the  company  might 
continue  to  use  the  same  for  its  own  use, 
but  for  no  other  purpo'.e.  Wood  v.  Michi- 
gan S.  <3-  N.  I.  R.  Co.,  2  Hiss.  (U.  S.)  62. 

W.  B.  Mann  became  the  patentee  of  a 
certain  style  of  sleeping  cars,  and  afterwards 
assigned  to  plaintiff  company  the  right  to 
manufacture  such  car",  having  an  interest 
therein  himself,  and  being  its  president. 
He  believed  that  his  assignment  only  ex- 
tended to  the  right  to  manufacture  and  sell 
in  the  United  Stales,  and,  acting  under  this 
belief,  he  wrote  to  defendant  company, 
which  was  engaged  in  building  cars,  asking 
for  terms  upon  which  it  would  construct 
him  certain  cars  to  be  used  in  another 
country;  and,  among  the  terms  agreed 
upon,  defendant  agreed  to  pay  him  a  certain 
royalty  and  five  per  cent,  commission  addi- 
tional. Held,  that  plaintiff's  assignment 
included  the  right  to  manufacture  and  sell 
everywhere,  and  therefore  it  was  entitled  to 
the  royalty  and  commission  agreed  to  be 
paid  to  its  president.  A/ann's  lioudoir  Car 
Co.  v  Gilbert  Car  Mfg.  Co.,  23  A^.  V.  Supp. 
.697,  69  ////;/  245  ;  affirtiied  in  141  A'.  Y.  571, 
36  \.  E.  Rep.  345.  57  ^'.  ''.  >"•  A'.  867. 
IJI.  Licenses. — A  license  to  a  railroad 


company  to  use  a  patent  brake  extends  no 
further  than  the  road  then  used,  or  which 
the  company  is  then  authorized  to  con- 
struct. It  does  not  extend  to  any  and  all 
lines  which  the  company,  under  a  new  name 
and  organization,  may  thereafter  be  author- 
ized to  build,  lease,  or  use.  Emigh  v.  67/«- 
cago,  B.  &*  Q.  A\  Co.,  i  Biss.  {(/.S.)  400. 

A  license  by  one  of  three  patentees  to 
use  a  patented  improv .ment  in  car-brake 
shoes  clothes  the  licensee  with  the  right  to 
use  it,  and  he  becomes  liable  for  the  con- 
tract price.  Dunham  v.  Indianapolis  &* 
St.  L.  R.  Co.,  7  Biss.  ( U.  S.)  223. 

A  license  to  a  railroad  company  to  con- 
struct and  use  a  patented  car  brake  "on 
any  and  all  cars  belonging  to  said  company, 
and  to  use  the  same  improvement  upon 
the  entire  length  of  its  road,  and  upon  all 
parts  thereof,  *  *  *  for  and  during  the  term 
for  which  said  letters  patent  are  or  may  be 
granted,"  covers  the  use  of  brakes  belong- 
ing to  the  compary  attached  to  trucks  and 
running  gear  belonging  to  it,  even  though 
the  superstructures  which  are  borne  upon 
the  trucks  do  not  belong  to  the  company. 
Such  license  does  not  convey  the  right  to 
use  the  brake  during  an  extended  term  of 
the  patent,  granted  after  the  making  of  the 
license.  Hodge  v.  Hudson  River  R.  Co.,  6 
Blatchf.  {U.  S.)  85.— Quoting  Phelps  v. 
Comstock,  4  McLean  (U.  S.)  353;  Case  v. 
Redfield,4  McLean  526;  Clum  7).  Brewer,  2 
Curtis  (U.  S.)  506;  Pitts  v.  Hall,  3  Blatchf. 
201. 

The  only  right  which  the  company  has 
under  such  extended  term  is  the  right 
given  by  the  act  of  July  4,  1836,  §  18  (5  U. 
S.  St.  at  L.  125),  to  continue  to  use  until 
they  are  worn  out,  or  as  long  as  they  can  be 
repaired,  such  brakes  as  they  had  lawfu'ly 
in  use  under  the  license  when  the  first  term 
of  the  patent  expired.  Hodge  v.  Hudson 
River  R.  Co.,  6  Blatchf.  {U.  i).)  85. 

A  company  in  running  its  cars  on  the 
railroad  of  another  company  by  permission 
cannot  be  considered  as  operating  the  rail- 
road, within  the  meaning  of  a  license  grant- 
ing to  the  latter  company,  "  and  any  and  all 
other  parties  that  may  hereafter  own  or  op- 
erate "  such  railroad,  the  right  to  construct 
and  use  a  patented  invention  "  on  any  and 
all  cars  now  or  hereafter  owned  by  said 
company,  or  by  parties  that  may  hereafter 
own  or  operate"  said  railroad.  Hodge  v. 
Hudson  River  R.  Co..  6  Blatchf.  {V.  S.)  85. 
Where  an  inventor  consents  to  the  use  of 


PATENTS   FOR   INVENTIONS,  14-16. 


951 


i:iends  no 

or  which 

to  con- 

y  and  all 

new  name 

)e  author- 

h  V.  Chi- 

S'.)  400. 

entees  to 

car-brake 

le  right  to 

■  the  con- 

uipolis  <&* 

iiy  to  con- 
rake  "on 
company, 
tent   upon 
1  upon  all 
g  the  term 
or  may  be 
ss  belong- 
rucks  and 
en  though 
orne  upon 
company, 
e  right  to 
;d  term  of 
:ing  of  the 
r  R.  Co.,  6 
Phelps  V. 
5 ;  Case  v. 
.  Brewer,  2 
,  3  Blatchf. 

npany  has 
the  right 
§  18(5  U. 
)  use  until 
hey  can  be 
id  lawfu'ly 
;  first  term 
V.  Hudson 

is. 

ars  on  the 
permission 
ig  the  rail- 
2nse  grant- 
Miy  and  all 
own  or  op- 
)  construct 
)n  any  and 
ed  by  said 
y  hereafter 
Hodge  V. 
{V.  5-.)  85. 
the  use  of 


his  device  before  a  patent  has  been  applied 
for,  but  coupled  with  a  condition  that  he 
shall  be  paid  for  it  when  patented,  a  defend- 
ant does  not  acquire  an  implied  license  nor 
z.  right  to  gratuitous  use  under  U.  S.  Rev. 
St.  §  4899.  Talbert  v.  United  States,  25  Ct. 
of  CI.  141. 

A  railroad  58  miles  long,  having  a  li- 
cense to  use  a  patented  improvement,  sub- 
sequently acquired,  by  consolidation  and 
change  of  name,  210  miles  more.  Held, 
that  the  license  did  not  extend  to  the  newly 
acquired  portion.  Emigh  v.  Chicago,  B.  &» 
Q.  A\  Co.,  2  Fis/i.  Pat.  Cas.  387. 

Where  there  is  an  established  license  fee 
of  so  much  per  car  per  month  for  the  use 
of  a  patented  car  brake,  a  court  in  a  cause 
in  equity  in  a  suit  for  profits  from  the  use 
of  the  patent,  where  the  proof  of  profits  is 
otherwise  difficult,  will  accept  the  license 
fee  as  a  proper  basis  for  estimating  the 
amount  of  complainant's  recovery.  Einigh 
V.  Baltimore  6^  O.  K.  Co.,  4  Hughes  {U.  S.) 
271,  6  Fed.  Kep.  283. 

The  terms  "  upon  and  about  the  locomo- 
tive engines  used  by  the  said  company  on 
the  Penn.  R.  or  any  road  or  roads  now 
owned  or  that  may  hereafter  be  owned  or 
operated  by  said  company  "  embrace  not 
only  locomotive  engines  i-i  use  at  the  date 
of  the  license  upon  roads  then  owned  or 
operated  by  the  company,  but  also  such 
other  engines  as  it  might  thereafter  use, 
and  other  roads  which  it  might  thereafter 
operate.  Matthew  v.  Pennsylvania  R.  Co., 
8  Fed.  Rep.  45,  14  Phila.  (Pa.)  602. 

IV.  INFBINOEMENT,  AND  BEMEDIES 
THEREFOR 

14.  Jurisdiction. — Although  the  term 
of  a  patent  has  expired  before  suit  is 
brought,  a  bill  may  be  maintained  for  an 
infringement,  where  it  seeks  a  discovery 
and  accounting  of  profits  made  by  the  de- 
fendant's use  of  the  patent,  where  such 
profits  are  of  such  nature  as  to  require  an 
investigation,  which  a  court  of  law  is  not  as 
competent  to  make  as  a  court  of  equity. 
Sayles  v.  Dubuque  &•  S.  C.  R.  Co.,  5  Dill. 
{U.  S.)  561. 

Under  U.  S.  Rev.  St.  g§  629,  711,  4821,  a 
bill  in  equity  will  not  lie  solely  to  recover 
damages  for  the  infringement  of  a  patent, 
but  it  will  where  an  injunction  or  a  discov- 
ery and  an  account  for  profits  arc  sought. 
Vtiughan  v.  East  j^nn.,  V.  &>  G.  R.  Co.,  I 
F/ipfi.  (U.  6.)  621. 


15.  What  amounts  to  infriufr^c- 
niciit. — The  patent  issued  to  Kearney  & 
Tronson,  April  11,  1871,  for  an  improved 
locomotive  spark  arrester,  consisting  of  a 
grating  with  vertical  bars  placed  at  the  foot 
of  the  spark  arrester,  is  infringed  by  the 
arrester  used  by  deicndants,  which  consists 
of  upright  cast-iron  bars  with  connections 
between  them,  with  spaces  between  the 
bars.  Kearney  v.  Lehigh  Valley  R.  Co.,  32 
Fed.  Rep.  320. 

A  cable-railway  patent  for  a  dummy  en- 
gine to  carry  no  passengers,  and  with  the 
grip  located  under  the  forward  axle,  is  in- 
fringed by  a  car  similarly  constructed  in- 
tended to  carry  passengers,  and  in  which 
the  grip  is  situated  between  the  axles.  Pa- 
cific Cable  R.  Co.  v.  Butte  City  St.  R.  Co.,  55 
Fed.  Rep.  760. 

A  patent  for  a  spark  arrester  and  con- 
sumer which  consists  in  the  combination 
of  a  blast  pipe  with  a  return  flue  so  ar- 
ranged that  the  sparks  are  driven  in  a  con- 
tinuous current  through  the  flue  from  the 
smokepipe  back  into  the  fire  chamber  is 
infringed  by  a  spark  arrester  and  consumer 
consisting  of  a  blast  pipe  and  tv  return 
flues  so  arranged  that  the  sparks  are  carried 
into  the  fire  chamber  in  a  continuous  cur- 
rent through  the  flues  without  resting, 
although  the  current  is  accelerated,  and 
the  combustion  of  the  returned  sparks  is 
aided  by  a  current  of  air  brought  into  the 
return  flues  by  an  additional  device.  Pike 
v.  Providence  &>  IV.  R.  Co.,  i  Holmes  {U. 
S.)  445. 

10.  What  does  not.— Plaintiff  sued 
for  an  infringement  of  a  patent  in  the  man- 
ner of  placing  the  tire  or  baiuls  upon  the 
body  of  car  wheels.  The  evidence  showed 
that  one  used  the  rounded  flange  on  the 
tire,  while  tjie  other  used  an  ans^ular  one. 
Hrld,  that  there  was  no  infringement.  Le- 
high Valliy  R.  Co.  v.  Mellon,  104  U.  S.  112. 

Plaintiff  sued  for  an  infringement  of  a 
patent  for  an  improvement  in  clertric  sig- 
naling apparatus  for  railroads,  the  essential 
fe.iture  of  which  consisted  of  an  insulated 
section  of  the  track.  The  signaling  appa- 
ratus used  bydcfendants  dispensed  with  this 
insulated  section  and  used  the  earth  for  the 
return  current  to  complete  the  circuit. 
Held,  that  there  was  no  infringement.  FJec- 
tric  R.  Signal  Co.  v.  Hall  A'.  Signal  Co.,  114 
U.  S.  87,  5  Sup.  Ct.  Rep.  1069. 

PlaintitY  sued  for  an  infringoniont  of  a 
patented  steam  bell  ringer,  the  essential  fea- 


952 


PATENTS   FOR   INVENTIONS,  17-19. 


i^fijt'' 


► 


ture  of  which  is  a  piston  and  piston  rod 
wliich  arc  deiachetl  from  eacii  other.  Held, 
tiiat  there  was  no  infriii<;eiiieiit  in  the  ap- 
paratus used  by  defendants,  wliich  dispensed 
with  tiie  piston  and  piston  rod.  Snow  v. 
iMke  Shore  &*  M.  S.  A'.  Co.,  \2\  U.  S.  617, 
7  Sup.  Ct.  Kep.  1 343 ;  ajjirming  \  8  Fed.  Rep. 
602. 

Plaintifif  sued  for  an  infringement  of  a 
patent  on  the  mode  of  constructing  elevated 
street  railways,  which  was  described  as 
"composed  of  a  series  of  arches,  supported 
on  each  side  of  the  street  upon  iron  shoes 
imbedded  in  masonry.  These  arches  are 
connected  by  braces  of  an  ordinary  and 
suitable  construction  whicli  will  impart  suf- 
ficient strength  and  rigidity  to  the  whole 
superstructure  to  prevent  any  vertical  or 
lateral  displacement  of  the  railway."  Held, 
that  a  railway  constructed  without  such 
arches,  which  were  the  essential  features  of 
plaintiff's  patent,  was  not  an  infringement. 
Morgan  El.  li,  Co.  v,  Pullman,  14  Fed.  Rep. 
648. 

PlaintifT  patented  a  continuous  mileage 
railroad  ticket,  consisting  of  leaves  or  sheets 
bound  together  in  book  form,  each  having  a 
number  of  mileage  coupons,  the  leaves  being 
connected  at  alternate  ends  for  tearing  off 
in  a  single  piece  the  required  number  of 
single  coupons  for  mileage  traveled.  De- 
fendant used  a  ticket,  printed  with  mileage 
coupons  connected,  with  one  end  fastened 
to  a  cover  and  folded  up  like  a  pocket  map, 
the  coupons  to  be  torn  ofl  over  the  edge  of 
the  lid.  The  essential  feature  of  plaintiff's 
patent  was  a  ticket  bound  in  book  form. 
Held,  that  it  was  not  in-fringed  by  defend- 
ant's ticket.  Eastman  v.  Chicago  &•  N.  IV. 
R.  Co.,  39  F'-d.  Rep.  552. 

17.  Who  liabU^  f«n'  iiifriiij>:ciiient. — 
A  Pennsylvania  railroad  company  is  respon- 
sible for  an  infringement  of  a  patent  in 
building  cars,  tiioiigh  it  .maintains  but  a 
nominal  organization,  its  stock  being  held 
by  a  Maryland  company  with  whose  road 
the  defendant  road  connects,  and  which 
furnishes  the  entire  rollinsj;  stock  of  the  de- 
fendant company.  York  tS^  M.  L.  R.  Co. 
V.  Wiiians,  17  How.  ([/.  S.)  31.— Distin- 
GUISHKU  IN  Arrowsmitii  v.  Nashville  &  D. 
R.Co..  57  Fed,  Rep.  165.  QiroiKi)  in  Nag- 
lee  7'.  Alexandria  &  F.  R.  Co.,  32  Am.  & 
Eng.  R.  Cas.  401,  S3  Va,  707;  Ricketts  7a 
Chesapeake  &  O.  R.  Co.,  41  Am,  &  Eng.  R. 
Cas.  42.  33  W.  Va,  433.  7  L.  R.  A.  354,  10  S. 
E.  Rep.  801. 


A  transportation  company  was  organized 
to  provide  a  through  freight  line  between 
certain  cities  in  the  eastern  and  others  in 
the  western  states,  and  contracted  with 
companies  owning  railroads  between  those 
cities  to  furnish  cars  for  use  throughout  the 
line.  Defendant  was  the  general  agent  of 
the  transportation  company,  with  power  to 
contract  for  the  carriage  of  goods,  but  with- 
out power  to  say  in  what  cars  they  should 
be  carried,  or  what  axle  boxes  should  be 
used  on  the  cars.  Axle  boxes  which  in- 
fringed plaintiff's  patent  were  used  on  the 
cars  used  by  the  transportation  company. 
Held,  that  defendant  was  not  liable  as  an 
infringer  of  plaintiff's  patent.  Lightner  v. 
Kimball,  i  Lo^v.  {U.  S.)  211. 

18.  Applicntiou  to  eiijoin.— A  bill 
praying  an  injunction  to  restrain  the  in- 
fringementofa  patent  which  only  describes  it 
as  "an  improvement  in  cable  railways,"  and 
that  letters  patent  have  been  issued  for  the 
same,  and  neither  the  patent  nor  the  speci- 
fications are  made  an  exhibit  therewith,  is 
open  to  demurrer  as  not  showing  in  what 
the  patent  consists.  Wise  v.  Grand  Ave. 
R.  Co.,  33  Fed.  Rep.  277. 

An  '\niwnc\.\on  pendente  lite  to  restrain  the 
infringement  of  a  patent  should  not  be 
granted  where  the  evidence  is  ex  parte,  and 
leaves  the  validity  of  the  patent  in  doubt, 
and  where  the  interests  involved  are  large, 
and  the  granting  of  the  injunction  might 
produce  as  great  injury  as  refusing  it,  and 
where  the  defendant  is  able  to  respond  in 
damages,  and  the  damages  are  readily  as- 
certained. Pullman  v.  l„xltimore  6f*  O.  R. 
Co.,  4  Hughes  {U.  S.)  236,  5  Fed.  Rep.  72. 

A  railroad  company  used  an  appliance 
patented  by  plaintiffs  for  about  four  years 
before  complaint  was  made  of  the  infringe- 
ment, and  for  about  two  years  longer  before 
suit  was  brought.  Held,  that  the  delay 
formed  no  objection  to  a  recovery.  Yates 
V.  Great  Western  R.  Co.,  24  Grant's  Ch.  {U. 

Q  495. 
10.    Matters  of   dofciise.— Where  a 

company  is  sued  for  infringement  of  a  pat- 
ent on  valves,  and  it  admits  the  validity  of 
the  patent  and  an  infringement,  it  cannot 
avoid  an  injunction  by  showing  that  the 
patent  is  of  very  small  value,  and  ofToring 
that  ])laintiff  may  take  a  decree  for  nominal 
damages,  and  an  injunction  against  the  use 
of  any  more  of  the  valves,  if  plaintiff  will 
grant  it  the  right  to  use  tiiose  already  on  its 
trains.     In  such  case  plaintiff  is  entitled  to 


PATENTS   FOR  INVENTIONS,  20-23. 


i 


an  accounting  before  a  mpster  to  ascertain 
the  damages.  Campbell  P.  P.  <S-  M.  Co.  v. 
Manhattan  li.  Co.,  49  Fed.  Rep.  930. 

Where  the  application  is  for  an  injunction 
to  restrain  the  use  of  a  patented  article,  it 
is  no  defense  that  plaintiff  has  never  manu- 
factured or  sold  any  of  the  articles,  or  sold 
the  privilege  to  others  to  do  so ;  and  espe- 
cially is  this  true  where  defendant  and  other 
roads  refused  to  pay  the  price  demanded, 
and  adopted  the  same  without  permission, 
expecting  to  pay  less  by  way  of  damages 
than  the  amount  asked  by  plaintiff.  Camp' 
bell  P.  P.  <S^  M.  Co.  V.  Manhattan  li.  Co..  49 
Fed.  Rep.  930. 

Where  a  company  has  infringed  a  patent 
by  adopting  the  patented  article  without 
permission  and  placing  it  upon  its  trains,  it 
is  no  excuse  against  granting  an  injunction 
that  it  would  work  a  great  hardship  to  the 
company  and  seriously  inconvenience  it  in 
carrying  passengers,  as  in  such  case  the 
court  can  provide  by  decree  for  a  gradual 
removal  of  the  patented  article  from  the 
cars.  Campbell  P.  P.  S^  M.  Co.  v.  Manhat- 
tan R.  Co.,  49  Fed.  Rep.  930. 

20.  Evidence— Plaintiff  sued  for  the 
infringement  of  a  car-brake  patent,  and  de- 
fendant insisted  that  the  same. brake  had 
been  used  some  years  prior  to  the  patent  on 
a  single  car  on  a  certain  occasion,  but  on 
this  point  there  was  some  conflict  of  evi- 
dence. It  was  admitted  that  the  brake  was 
of  great  utility.  Held,  that  the  fact  that  it 
was  only  used  on  a  single  car,  unexplained, 
is  conclusive  evidence  that  it  did  not  exist. 
Sayles  v.  Chicago  &*  N.  W.  R.  Co.,  3  Diss. 
{U.  S.)  52  ;  reversed  in  97  U.  S.  554. 

In  f^eciding  the  question  of  the  infringe- 
ment of  a  patent  the  conduct  of  defendants 
in  relation  to  their  machines,  in  constantly 
approaching  as  near  as  possible  to  plaintiff's 
i.iachine,  yet  not  close  enough  to  infringe 
it,  may  be  considered.  Turrill  v.  Illinois 
C.  R.  Co.,  5  Diss.  (U.  S.)  344. 

Where  plaintiff  sues  for  the  infringement 
of  a  patent  upon  steel  rails,  and  one  of  the 
defenses  set  up  is  that  the  same  kind  of  rail 
was  in  public  use  before  the  patent  was 
applied  for,  and  there  is  evidence  that  rails 
of  the  same  general  character  were  manu- 
factured before  the  application,  the  exact 
shape  of  the  rail  becomes  material,  and  a 
subpana  duces  tecum  may  issue  to  compel 
the  production  of  drawmgs  descriptive  of 
the  shape  of  tiie  rail.  Johnson  S.  S.  R.  Co. 
V.  North  Branch  Steel  Co.,  48  Fed.  kep.  191. 


21.  When  an  injnnction  will  be 
refused. — Where  plaintiff  owns  a  patent 
on  car  couplings,  and  does  not  manufacture 
or  use  the  patent,  but  merely  sells  the  right 
or  license  to  others  to  use  it,  a  preliminary 
injunction  against  such  infringing  couplings 
as  are  already  in  use  should  be  refused 
where  there  is  a  wide  difference  of  views  as 
to  the  amount  of  royalty  to  be  paid ;  but 
plaintiff  is  entitled  to  an  injunction  against 
the  use  of  any  other  couplings,  and  he  may 
require  security  if  he  can  show  that  defend- 
ant is  unable  to  pay  the  damages.  Camp- 
bell P.  P.  &•  M.  Co.  V.  Manhattan  R.  Co.,  47 
Fed.  Rep.  663. 

The  infringement  of  a  patent  will  not  be 
enjoined  after  the  expiration  of  the  term  for 
which  the  patent  issued.  Vaughan  v.  Cen- 
tral Pac.  R.  Co.,  4  Sawy.  ([/.  S.)  280. 

Where  the  owner  of  a  patent  brake  only 
sells  the  right  to  use  it,  his  damages  for  an 
infringement  is  the  value  of  the  license  to 
use  the  brake,  which  may  be  readily  ascer- 
tained in  an  action  at  law,  and  equity  relief 
may  be  refused.  Vaughan  v.  Central  Pac. 
R.  Co.,  4  Saivy.  {I/.  S.)  280. 

23.  Reference  to  ascertain  dam- 
ages.— Where  the  court  has  already  passed 
upon  the  merits  of  an  infringement  suit, 
and  has  sustained  the  validity  of  the  patent, 
and  the  care  is  referred  to  a  master  to  as- 
certain and  report  the  damages,  he  should 
confine  his  examination  to  the  simple  ques- 
tion of  the  amount  of  damages  incurred, 
and  should  not  consider  the  general  ques- 
tion of  infringement.  Turrill  v.  Illinois 
C.  R.  Co.,  5  Biss.  {U.  S.)  344. 

23.  Measure  of  damages.— Plaintiff 
had  a  patent  for  "  an  improvement  in  loco- 
motive lamps,"  containing  eleven  claims, 
each  of  which  was  a  claim  to  a  combination 
of  certain  members,  no  member  being 
original  with  plaintiff.  Defendant  had  used 
three  forms  of  lamps,  two  of  which  in- 
fringed only  some  of  the  claims,  and  one 
all  the  claims,  and  had  burned  only  kerosene 
oil  in  them.  Plaintiff's  lamp  was  the  first 
one  which  successfully  burned  kerosene  oil 
in  a  locomotive  lamp.  In  suit  in  equity 
for  infringement  there  was  a  decree  for 
plaintiff  and  a  reference  to  a  master. 
Plaintiff  exercised  his  monopoly  by  making 
and  selling  the  lamps.  Held:  (i)  that 
plaintiff  was  entitled  to  recover,  as  profits, 
the  saving  made  by  defendant  in  burning 
kerosene  oil  in  the  infringing  lamps,  and 
not  merely  a  proper  license  fee  for  each 


• 
4 


8 


054 


PATENTS   FOR  INVENTIONS,  24-27. 


lamp;  (2)  that  part  of  such  saving  was  the 
value  of  the  additional  lard  oil  defendant 
would  have  burned  in  the  eleven  lamps 
used  by  it  if  it  had  not  used  kerosene  oil  in 
them,  they  being  capable  of  burning  lard 
oil ;  (3)  that  it  also  saved  the  difference 
between  the  value  of  the  kerosene  oil  it 
used  and  the  value  of  the  higher  priced  lard 
oil  it  would  otherwise  have  been  obliged  to 
use;  (4)  that  plaintiff  was  entitled  to  the 
same  rate  of  profit  for  the  lamps  which 
contained  less  than  all  the  claims  as  for 
those  which  contained  all,  because  it  in- 
fringed in  each  lamp  enough  of  tiie  claims 
to  burn  kerosene  oil  successfully.  IVt'il- 
iams  v.  Home,  IV.&^  0.  iV.  Co.,  18  Blatchf. 
(U.  S.)  181,  2  Fed.  Rep.  702. 

Where  the  suit  is  for  infringement  of  a 
patent  on  dumping  cars,  in  ascertaining  the 
damages  the  jury  should  ascertain  what 
would  be  a  reasonable  royalty  for  defendant 
to  have  paid  for  the  use  of  the  cars  at  so 
much  per  car ;  and  in  determining  this  point 
the  utility  and  cheapness  of  operation  for 
the  use  of  the  cars  in  question  as  compared 
with  others  known  or  used  at  the  time  of 
the  infringement,  and  the  saving,  if  any,  to 
defendant  by  the  use  of  such  cars,  should 
be  considered.  Ross  v.  Montana  Union  R, 
Co.,  45  Fed.  Rep.  424. 

The  rule  is  that  the  measure  of  profits  as 
distinguished  from  damages  for  which  an 
infringer  is  responsible  is  the  aggregate  of 
gains  or  savings  which  he  has  made  from 
the  use  of  the  patented  invention  above 
what  he  could  have  made  in  doing  the  same 
work  from  the  use  of  any  other  device  or 
process  existing  at  the  time  capable  of  ac- 
complishing the  same  purpose  cr  attaining 
the  same  result,  and  free  and  open  to  the 
public  use.  Locomotive  Safety  Truck  Co. 
V.  Pennsylvania  R.  Co.,  14  Phila.  {Pa.)  432. 

y.    DECISIONS  RELATIVE   TO    FAETICUIAR 
PATENTS. 

24.  App.trntiis  for  supplying:  fuel 
and  water  to  tenders.  —  Patent  No. 
99,723,  granted  to  A.  H.  Spencer,  Feb.  8, 
1S70,  having  for  its  object  the  utilization  of 
the  traction  of  a  moving  locomotive  to  raise 
suitable  coal-  or  water-delivery  apparatus 
so  that  their  contents  may  be  discharged 
into  tlie  tender  of  a  locomotive,  is  valid 
when  construed  as  a  claim  for  the  pnrticular 
means  shown  to  perform  the  work  described. 
Spencer  v.  Pennsylvania  R.  Co.,  34  Fed.  Rep, 
899. 


25.   BridKe-buildiner  apparatus.— 

Under  the  Dubois  patent  for  building 
bridge  piers  the  lirst  claim  is  for  an  instru- 
ment or  device  called  a  floating  coffer-dam  ; 
and  the  second  claim  is  for  the  use  of  the 
tube,  without  reference  to  its  shape  or  ma- 
terial, or  of  how  many  parts  composed,  and 
whether  long  or  short.  Philadelphia,  W. 
<S-  B.  R.  Co.  V.Dubois,  12  Wall.  {U.  S.)  47. 

20.  Cable-railway  construction.— 
The  Root  patent.  No.  262,162,  granted 
Aug.  I,  1882,  for  an  improvement  in  the 
construction  of  cable  railroads  is  invalid 
because  the  invention  had  been  in  use  for 
more  than  two  years  prior  to  patentee's 
application  for  a  patent.  Root  v.  Third 
Ave.  R.  Co.,  37  Fed.  Rep.  673. 

The  first  claim  of  patent  No.  95,372, 
granted  to  Asa  E.  Hovey,  Sept.  18,  ^877,  for 
"  an  improvement  in  endless-rope  traction 
railways,"  is  void  because  it  had  been  antic- 
ipated and  in  actual  use  as  early  as  1873. 
National  Cable  R.  Co.  v.  Mt.  Adams  &>  E. 
P.  I.  R.  Co.,  38  Fed.  Rep.  840. 

Patent  No.  241,044.  granted  to  S.  R. 
Matthewson,  May  3,  1881,  for  "  a  cable  tram- 
way for  carrying  cars  around  curves,"  which 
consists  of  certain  vertical  rollers  with  in- 
tervening vertical  plates,  is  void  for  want 
of  novelty,  having  been  anticipated  by  an 
Eiijlish  patent  in  1872  which  combined 
substantially  the  same  mechanism.  Root  v. 
Third  A7'e.  R.  Co.,  43  Fed.  Rep.  73. 

27.  Cables  and  grips.  —  Patent  No. 
160,757,  issued  to  William  Eppe'shoini^r. 
March  16,  1875,  for  "  an  improvomt  p 
clamp  apparatus  for  connecting  fi-.c  ,  • 
with  endless  traveling  devices."  thr  (:■  vr  y 
of  which  is  claimed  to  consist  in  attaciiin' 
the  ends  of  the  gripping  device  two  vert.. \.;i 
pulleys,  by  which  the  cable  is  supported 
when  the  car  is  stopped,  and  thus  the  wear- 
ing of  the  lower  jaw  by  friction  is  avoided, 
as  well  as  avoiding  the  effect  of  friction  on 
the  cable  itself,  is  not  infringed  by  the  de- 
vice used  by  defendants,  in  which  the  cables 
constantly  rest  upon  the  pulleys,  and  the 
lower  jaw  is  fixed  and  is  not  touched  by 
the  cable  when  the  car  is  at  rest.  Root  v. 
Siott.v  City  Cable  R.  Co.,  42  Fed.  Rep.  500. — 
Referrino  to  Root  v.  Third  Ave.  R.  Co., 
39  Fed.  Rep.  281. 

Patent  No.  195,505,  issued  to  A.  S.  Halli- 
die,  Sept.  26.  1877,  for  an  improvement  in 
the  mechanism  used  in  connection  with 
cable  railways,  and  which  is  described  in 
the  firstVlaim  as  a  combination  of  pulleys 


PATENTS   FOR    INVENTIONS,  28,  20. 


955 


nratiis.— 

building 
an  instru- 
)ffer-dam  ; 
ise  of  the 
pe  or  ma- 
josed,  and 
iphia,  W. 
U.  S.)  47. 
ictioii. — 
,  granted 
nt  in  the 
is  invalid 
in  use  for 
patentee's 
V.  Third 

95.372, 
8, /877.for 
le  traction 
)een  antic- 
y  as  1873. 
iams  <S»  E. 

to    S.    R. 

able  trarr- 
res,"  which 

s  with  in- 
d  for  want 
ated  by  an 

combined 
m.    Kooiw. 

73- 

Patent  No. 
pe'shivlni^ir. 
iveinc 
f^tt'  -••  ■•  ■ 
;hr  v.'  vr  y 
ttaciiin' 
\vovci-L.,ai 
supported 
s  the  wear- 
is  avoided, 
friction  on 
by  the  de- 
1  the  cables 
s,  and  the 
ouched  by 
3t.  Koot  V. 
AV/.  500. — 
ve.  R.  Co., 

\.  S.  Halli- 
Dvement  in 
iction  with 
escribed  in 
of  pulleys 


and  a  single  tube  so  arranged  that  an  endless 
cable  can  run  through  it,  thereby  forming 
two  cables  running  in  different  directions, 
is  void  for  want  of  patentable  novelty,  as 
the  same  result  had  formerly  been  reached 
by  the  use  of  separate  tubes.  jXaiioitul  CVi- 
ble  Ji.  Co.  V.  Sioux  City  Cable  A'.  Co.,  42  Fed. 
Rep.  679. 

There  was  nothing  novel  or  patentable 
about  the  claim  of  the  above  patent  in  so 
far  as  it  covered  the  combination  of  a  diag- 
onal tube  between  the  main  cable  tubes, 
with  a  slot  therein,  so  as  to  allow  a  car  to 
pass  from  one  track  to  another.  National 
Cable  li.  Co.  v.  Sioux  City  Cable  Ji.  Co.,  42 
Fed.  R(p.  679. 

Hut  the  third  claim  in  the  above  patent, 
for  a  pivoted  switch  rail  and  spring  so  ar- 
ranged as  to  obviate  the  objection  of  the 
opening  made  at  the  meeting  of  the  slot  in 
the  branch  tube  with  that  in  the  main  tube, 
was  novel  and  patentable,  though  there  had 
been  previously  used  devices  of  somewhat 
the  same  nature.  National  Cable  R.  Co.  v. 
Sioux  City  Cable  R.  Co. ,  42  Fed.  Rep.  679. 

Patent  No.  244,147,  issued  to  Henry  Root, 
for  a  track  brake  for  railway  cars,  achieves 
a  new  and  useful  result  sufficient  to  sustain 
the  patent,  and  is  not  void  as  a  mere  aggre- 
gation of  old  elements.  Pacific  Cable  R. 
Co.  V.  Butte  City  St.  R.  C<?.,  52  Fed.  Rep.  863. 

Claims  2  and  3  of  patent  No.  203,249, 
issued  to  T.  H.  Day,  May  7,  1878,  for  a 
rope  tramway  and  apparatus,  disclose  no  in- 
vention, and  therefore  are  not  patentable. 
Pacific  Cable  R.  Co.  v.  Butte  City  St.  R.  Co., 
53  Fed  Rep.  545, 

Patent  No.  244,147,  issued  to  Henry  Root, 
July  12,  1 88 1,  for  a  tension  apparatus  de- 
signed .for  taking  up  the  slack  of  the  cable 
in  cable  railways,  is  so  far  different  in  kind 
and  degree  from  the  preceding  patent  issued 
to  William  Eppelsheimer,  Aug.  7,  1877,  as 
to  constitute  an  invention.  Consolidated  P. 
Cable  Co.  v.  Pacific  Cable  R.  Co.,  53  Fed. 
Rep.  382.  7  U.  S.  App.  434.  3  C.  C.  A.  566. 

In  the  above  patent  plaintiff  claims  the 
invention  to  be  a  cable- pulley  having  its 
a.xis  journaled  upon  a  car  which  moves  on 
rails  or  timbers,  which  again  travel  on  a 
second  track,  which  is  designated  as  a  "  sec- 
ondary track."  In  defendant's  device  part 
of  the  rails  and  timbers  which  appear  in 
plaintiff's  device  are  cut  off,  and  the  mov- 
able car,  which  supports  the  cable  pulley, 
and  upon  which  it  is  journaled,  as  in  plain- 
tiff's, is  let   down   so  that  the  car   which 


carries  the  cable  wheel  and  the  one  which 
carries  the  chain  wheel  move  on  the 
same  track.  Held,  that  the  principle  and 
operation  of  the  machines  are  the  same, 
and  an  infringement  is  not  avoided  by  the 
few  alterations  made.  Consolidated  P.  Cable 
Co.  V.  Pacific  Cable  R.  Co.,  53  Fed.  Rep.  382, 
7  U.  S.  App.  434,  3  C.  C.  A.  566. 

Plaintiff  sued  for  an  infringement  of  tiie 
third  claim  of  the  Eppelsheimer  patent.  No. 
189,204,  issued  April  3,  1877,  for  "an  im- 
proved clamp  apparatus  for  tramways  or 
street  railways,"  which  consists  of  five  old 
elements,  one  being  friction  rollers,  which 
secure  the  grip  of  the  cable.  Held,  that 
the  device  used  by  defendants,  which  com- 
bines four  of  the  same  elements,  and  the 
fifth,  a  bell  crank  or  toggle,  in  place  of  the 
friction  rollers,  is  an  infringement.  Consoli- 
dated P.  Cable  Co.  v.  Pacific  Cable  R.  Co.,  53 
Fed.  Rep.  385,  7  U.  S.  App.  444,  3  C.  C.  A. 
570. 

Patent  No.  271,727,  granted  to  D.  J.  Mil- 
ler, Feb.  6,  1883,  for  improvements  in  the 
construction  of  cable  railways,  and  consist- 
ing of  a  combined  cable  support  and  cable 
lifter  so  arranged  that  horizontal  sections  of 
the  cable  can  be  raised  sufficiently  to  be  re- 
ceived into  the  gripper  at  any  desired  point, 
is  valid  as  combining  old  elements  so  as  to 
produce  a  new  and  useful  result.  American 
Cable  R.  Co.  v.  Mayor,  etc.,  of  N.  V.,  56 
Fed.  Rep.  149. 

There  is  nothing  in  the  specification  or 
claim  of  the  above  patent  which  confines  it 
to  use  in  tunnels ;  and  an  infringement  by  ' 
defendant's  apparatus  is  not  avoided  by  the 
fact  that  defendant  instead  of  raising  two 
pulleys,  as  in  plaintiff's  patent,  also  raised 
others,  and  thus  elevated  a  longer  section 
of  the  cable.  American  Cable  R.  Co.  v. 
Mayor,  etc.,  of  N.  Y.,  56  Fed.  Rep.  149. 

28.  Car-axle  boxes.— Reissued  patent 
No.  3243,  to  T.  P.  Stewart  of  Dec.  22,  1868, 
for  improvements  in  car-axle  boxes,  and 
having  for  its  essential  feature  two  tubes 
fitting  one  within  the  other  without  flanges, 
is  void  for  want  of  patentable  novelty.  Bal- 
timore Car-  Wheel  Co.  v.  North  Baltimore 
Pass.  R.  Co.,  21  Fed.  Rep.  47.   . 

29.  Car  brakes. — Patent  No.  9109,  is- 
sued to  Henry  Tanner,  July  6,  1852,  for  an 
improvement  in  car  brakes,  is  void  so  far  as 
it  applies  to  double  brakes  operating  on  two 
trucks  of  a  car  at  the  same  lime  by  a  single 
force  through  connecting  rods,  as  it  had 
been  publicly  used  before  the  Tanner  brake 


1^ 


956 


PATENTS    FOR   INVENTIONS,  30-33. 


l: 


was  invented  ;  and  only  the  specific  im- 
provements made  by  the  patent  arc  valid. 
Chicairo  ^  N.  IK  Ji.  Co.  v.  Sayhs,  97  U. 
S.  554  ;  rfvcrst'ng  3  Biss.  52. 

Claim  two  of  patent  No.  40,156,  granted  to 
James  Biiig,  Oct.  6,  1863,  for  an  improved 
shoe  for  car  braites,  does  not  embody  any 
hitcral  rociiing  motion  as  an  element  of 
ci)mi)ination  ;  but  there  is  patentable  nov- 
elty in  the  claim,  and  a  shoe  which  substan- 
tially combines  the  same  parts  infringes  it, 
Ltil-f  Shore  &^  M.  S.  R.  Co.  v.  National  Car- 
Brake  Shoe  Co.,  1 10  U.  S.  229,  4  Sup.  Ct. 
Rep.  33, 

Stevens'  patent  of  Nov.  25,  1851,  for  a  car 
brake  fairly  interpreted  means  the  particu- 
lar combination  and  arrangement  of  levers, 
link  rods,  and  rubbers  in  a  car  so  as  to  pro- 
duce the  described  result,  viz.,  the  retard- 
ing of  each  wheel  of  the  car  when  the  brake 
is  applied  with  uniform  force,  and  is  new. 
Emigh  v.  Chicago,  B.  &*  Q.  A'.  Co.,  I  Biss. 
( (/.  S.)  400. 

Patent  No.  304,863,  issued  to  Henry  Root 
for  "  a  track  brake  for  railway  cars,"  was  is- 
sued after  a  hearing  on  the  question  of  in- 
terference with  a  previous  patent  issued  to 
Patterson,  Sept.  25,  1883,  and  was,  there- 
fore, not  anticipated  by  the  latter.  In  such 
case  the  fact  that  the  second  patent  was 
issued  is  prima  facie  evidence  that  it  was 
first  invented.  Pacific  Cable  R.  Co.  v.  Butte 
City  St.  R.  Co..  52  Fed.  Rep.  863, 

The  above  Root  patent  is  infringed  by  a 
car  brake  used  by  defendants  which  com- 
bines substantially  the  same  construction, 
except  that  the  toggle  lever  is  connected 
with  a  shaft  by  a  rod  or  link,  while  in  the 
Root  patent  they  are  connected  directly. 
Pacific  Cable  R.  Co.  v.  Butte  City  St.  R.  Co., 
52  Fed.  Rep.  863. 

30.  Car  couplers.— Patent  No.  337,780, 
issued  to  Charles  Mueller,  March  9,  1886, 
for  an  improvement  in  car  couplings,  the 
essential  feature  of  which  is  a  draw  head  on 
which  the  strain  is  received  upon  a  plate 
held  in  place  by  a  spring,  is  not  infringed 
by  the  coupling  used  by  defendants,  in 
which  the  plates  are  bent  in  towards  the 
center  of  the  car  and  do  not  enter  the  draft 
bar.  Joslin  v.  Northern  Pac.  R.  Co.,  55  Fed. 
Rep.  66. 

Claim  2  of  patent  No.  50,518,  granted 
to  H.  H.  Trenor,  Oct.  17,  1865,  upon  a  car 
coupler,  and  which  is  described  as  a  method 
of  couplinsj;  the  cars  or  vehicles  of  a  train  of 
TWO   or   more   cars   or  vehicles,  cannot    be 


limited  to  the  coupling  of  cars  or  vehicles 
having  four-wheeled  trucks,  and  is  there- 
fore void  as  having  been  anticipated  by  a 
previous  English  patent  which  combined 
the  same  method  in  coupling  two-wheeled 
carriages.  P err  in  v.  Manhattan  R.  Co ,  56 
Fed.  Rep.  503. 

III.  Car  g:atcs.  —  Letters  patent  No. 
2S8.494,  granted  to  Joseph  Aron,  assignee 
of  W,  W,  Rosenfield,  Nov,  13,  1883,  for  an 
improvement  in  railway  car  gates,  are  invalid, 
the  invention  containing  no  patentable 
novelty.  Aron  W.Manhattan  R.  Co.,  132  U, 
S.  84,  10  Sup.  Ct.  Rep.  24;  affirmitig  26  Fed, 
Rep.  314. 

32.  Car  trucks.— The  specifications  of 
the  Winans  patent,  granted  Oct.  i,  1834,  for 
an  improvement  in  cars  said  nothing  about 
the  mode  of  attaching  the  car  to  the  motive 
power  or  to  the  next  car  in  a  train,  nor  any- 
thing about  the  use  of  side  bearings  to  pre- 
vent the  rocking  of  the  car  from  side  to  side, 
but  the  drawing  filed  in  November,  1838, 
showed  that  the  car  was  to  be  attached  to 
the  motive  power  and  to  the  next  car  in  a 
train  by  its  body,  and  not  by  a  perch  from 
the  truck,  and  also  showed  a  provision  for 
side  bearings.  Held,  that  the  specification 
afforded  a  suflicient  description  of  the  in- 
vention independently  of  the  drawing,  and 
that  the  mode  of  attaching  the  car  and  the 
use  of  side  bearings  did  not  enter  into  the 
essence  of  the  invention  or  constitute  any 
substantial  part  of  the  improvement.  Wi- 
nans V.  Schenectady  &*  T.  R,  Co.,  2  Blatchf. 
((/.  S.)  279. 

The  location  of  the  trucks  relative  to  each 
other  under  the  body  of  the  car,  as  well  as 
the  near  proximity  of  the  two  axles  of  each 
truck  to  each  other,  form  an  essential  part 
of  the  arrangement  of  the  patentee,  who 
states  in  his  specification  that  the  closeness 
of  the  fore  and  hind  wheels  of  each  truck, 
taken  in  connection  with  the  use  of  two 
trucks  arranged  as  remotely  from  each 
other  as  can  conveniently  be  done  for  the 
support  of  the  car  body,  with  a  view  to  the 
objects  and  on  the  principles  set  forth  by 
him,  is  considered  by  him  as  an  important 
feature  of  his  invention.  But  the  improve- 
ment does  not  consist  in  placing  the  axles 
of  the  two  trucks  at  any  precise  distance 
apart,  or  at  any  precise  distance  from 
each  end  of  the  body  ;  and  the  specification 
is  sufficient,  although  it  does  not  state  in 
feet  or  inches  the  exact  distance  from  the 
ends  of  the  car  bodv  at  which  it  would  be 


PATENTS   FOR   INVENTIONS,  33-35. 


967 


best  to  arrange  the  trucks,  or  what  should 
be  the  exact  distance  between  the  axles. 
U'liians  V.  Schenectady  »S««  T.  R.  Co.,  2 
lUatchf.  (U.  S.)  279. 

The  patent  of  September  21,  1837,  issued 
to  Riciiard  Inilay  for  an  "  improvement  in 
liie  mode  of  supporting  the  bodies  of  rail- 
road cars  and  carriages  "  consisted  of  two 
cylinder  plates,  male  and  female,  one  within 
the  other  and  acting  in  combination,  one 
attached  to  the  truck  and  the  other  to  the 
car  body,  and  is  infringed  by  the  use  and 
application  of  two  cylinder  plates,  one 
within  the  other,  to  give  substantial  sup- 
port to  the  railroad  carriage,  even  though 
utiier  means  are  used  in  connection  with 
them  to  give  the  required  support,  and  such 
other  mea.is  better  accomplish  the  object, 
linlay  v.  Norwich  &*  IV.  A'.  Co.,  4  Blatchf. 

{U.S.)  2^7. 

33.  Chuirs  and  rails  for  street  rail- 
ways.—The  patent  issued  to  James  Stimp- 
son,  Aug.  23,  1831,  and  reissued  Sept.  26, 
1835,  and  Aug.  27,  1840,  for  an  improvement 
in  the  method  of  carrying  railroads  "  through 
the  streets  of  towns,  or  in  other  situations 
where  it  may  be  desirable  that  the  wheels  of 
ordinary  carriages  should  not  be  subject  to 
injury  or  obstruction,"  is  but  a  combination 
of  means  already  known  and  in  use,  and  is 
not  original  in  its  discovery  or  invention. 
Stimpson  v,  Baltimore &*  S.  R.  Co.,  10 How. 
(U.S.)  329. 

The  means  used  by  defendant  company  in 
turning  the  corners  of  streets  is  so  different 
from  the  means  employed  in  the  above 
patent  that  there  is  no  infringement.  Stimp- 
son V.  BaltitHore  (&*  S.  R.  Co.,  10  Hffw.  {U. 
S.)  329. 

Patent  No.  272,554,  issued  to  T.  L.  John- 
son, Feb.  20,  1883,  for  street-railroad  rails,  is 
but  an  obvious  application  of  what  had  pre- 
ceded, and  is  void  for  want  of  patentable 
invention.  Johnson  Co.  v.  Pacific  Rolling 
Mills  Co.,  51  Fed.  Rep.  762.  7  U.  S.  App.  214, 
2  C.  C.  A.  506 ;  affirming  47  Fed.  Rep.  "586. 

Patent  No.  312,259,  granted  to  B.  F.  Cur- 
tis, Feb.  17,  1885,  for  "a  street-railroad 
chair,"  the  object  of  which  is  to  lift  the  rail 
on  which  the  car  run,,  above  the  cross-ties 
so  as  to  make  the  paving  blocks  come  flush 
with  the  rail,  to  permit  the  lowering  of  the 
ties,  and  to  do  away  with  the  old  wooden 
stringer,  is  not  infringed  by  patent  No. 
316,995,  issued  to  A.  J.  Moxham,  May  5, 
1885,  which  consists  of  a  chair  made  of 


wrought  iron  in  box  form.     Curtis  v.  At- 
lanta St.  R.  Co.,  56  Fed.  Rep.  596. 
34.  Coiiiiec-tioii  for  vestibule  oars. 

— Pullman's  patent,  N'>.  /J3,i37,  for  con- 
necting vestibule  cars  is  iiot  void  for  want 
of  novelty,  nor  was  it  anticipated  by  the 
Session's  patent,  granted  Nov.  15,  1887. 
Pulhnan  Palace  Car  Co.  v.  Boston  &*  A.  R. 
Co.,  44  Fed.  Rip.  195. 

33.  Construction  of  cars. — The  claim 
of  letters  patent  issued  to  Ross  Winans, 
June  26,  1847,  was  for  a  patent  for  making 
the  body  of  a  railroad  coal  car  of  sheet  iron, 
the  upper  part  being  cylindrical,  and  the 
lower  part  in  the  form  of  a  frustum  of  a 
cone,  the  under  edge  of  which  has  a  flange 
secured  upon  it  to  which  a  movable  bottom 
is  attached.  Held,  that  the  patent  was  not 
merely  for  changing  the  form  of  a  machine, 
but  by  means  of  such  change  to  secure  a 
new  mode  of  operation,  and  thus  attain  a 
new  and  useful  result.  Winans  v.  Den- 
mead,  15  How.  (U.  S.)  330. 

So  in  a  suit  for  infringement  of  such  pat- 
ent by  constructing  octagonal  and  pyramidal 
cars  it  was  error  to  instruct  the  jury  that 
the  patent  covered  conical  cars  only,  the 
same  result  being  attained  by  each.  The 
patent  should  have  been  explained  to  the 
jury,  and  left  to  them  to  decide  whether 
there  was  an  infringement.  Winans  v. 
Denmead,  15  How.  {U.  S.)  330, 

The  patent  issued  to  Ross  Winans,  Oct. 
I,  1834,  for  "  an  improvement  in  the  con- 
struction of  cars  or  carriages  intended  to 
run  on  railroads,"  and  which  consists  in  the 
manner  of  connecting  and  arranging  the 
eight  wheels  so  as  to  allow  the  cars  to  pass 
curves  with  greater  facility  and  safety,  is 
void,  if  the  jury  should  find  that  the  dis- 
covery was  known  and  used  before  the  date 
of  the  patent.  Winans  v.  New  York  &'  E. 
R.  Co.,  21  How.  ([/.  5.)  88. 

Letters  patent  No.  203,226,  dated  April 
30,  1878,  issued  to  C.  R.  Watson  for  an  im- 
provement .  in  grain-car  doors,  embrace 
nothing  that  is  patentable.  Watson  v. 
Cincinnati,  I.,  St.  L.  <S-  C.  R.  Co.,  132  U,  S. 
161,  10  Sup.  Ct.  Rep.  45. 

Richard's  patent.  No.  147,863,  granted 
Feb.  24,  1874,  for  an  improvement  in 
perches  for  dumping  cars,  is  void  Tor  want 
of  novelty.  Stitt  v.  Eastern  R.  Co.,  22 
Fed.  Rep.  649. 

Patent  No.  203,226,  granted  to  C.  R.  Wat- 
son, April  13,  1878,  for  an  improvement  in 


I 


958 


PATENTS   FOR  INVENTIONS,  30-38. 


grain-car  doors,  is  not  infringed  by  car 
doors  nianufactureo  r.nd  used  similar  to 
those  descrilied  in  patent  No.  78,188,  issued 
to  M.  M.  Crooker,  May  26,  1S6S.  Watson 
V.  Cincinnati,  I.,  St.  L.  (S>»  C,  R.  Co.,  23 
Fed.  Rep.  443. 

Session's  patent,  No.  373,098,  granted  Nov. 
15,  1887,  for  a  frame-shaped  plate,  of  about 
the  heijilit  of  the  car,  applied  vertically  and 
transversely  to  the  end  of  a  railway  car, 
and  so  fixed  that  it  can  have  no  lateral  mo- 
tion except  with  the  lateral  motion  of  the 
body  of  the  car,  and  projecting  a  short  dis- 
tance beyond  the  end  of  the  car  by  backing 
springs,  possesses  patentable  novelty  and 
utility.  Pullman  Palace  Car  Co.  \.  Wagner 
Palace  Car  Co.,  38  Fed.  Rep.  416. 

30.  Elvctrk;  rail  coiiiicetoks. — Pat- 
ent No.  434,087,  issued  to  Charles  Lcib, 
Aug.  12,  1890,  for  an  electric  rail  connector, 
is  void  for  want  of  novelty,  having  been 
known  and  previously  patented.  Leib  v. 
Electric  Merchandise  Co.,  48  Fed.  Rep.  722  ; 
affirmed  in  54  Fed.  Rep.  385,  9  U.  S.  App. 
509.  4  C.  C.  A.  381. 

37.  F'are  re{jlstt^r.s.  —  The  invention 
described  in  reissued  letters  pi'.tent  No.  4240, 
granted  to  John  B.  Slawson,  Jan.  24,  1871, 
is  not  patentable,  as  it  is  confined  to  putting 
in  the  ordinary  fare  box  used  on  street-cars 
an  additional  pane  of  glass  opposite  to  that 
next  the  driver,  so  that  the  passenger  can 
see  the  interior  of  the  box.  Tlie  letters 
are  therefore  void.  Slawson  v.  Grand  St. 
P.  P.  &^  F.  R.  Co.,\i  Am.  &>  Enff.  R.  Cas. 
451,  107  U.  S.  649,  2  Sup.  Ct.  Rep.  663. 

Letters  patent  No.  121,920,  granted  to 
Elijah  C.  Middleton,  Dec.  12.  1871,  are 
void.  The  fare  box,  the  headlight  of  the 
car,  and  the  reflector  are  the  elements  of  the 
contrivance  described  in  the  specification 
and  claim  for  lighting  the  interior  of  the 
box  at  night,  and  they  are  old.  What  is 
covered  by  the  letters  is  not  patentable,  as 
it  is  simply  making  in  the  top  of  the  box  an 
aperture  through  which  the  rays  of  the 
head-lamp  are  turned  by  means  of  a  re- 
flector. Slawson  v.  Grand  St.,  P.  P.  &*  F.  R. 
Co.,  13  Am.  (S-  Efig.  R.  Cas.  451,  107  I/.  S. 
649,  2  Sup.  Ct.  Rep.  663. 

Patent  No.  265,145,  issued  to  N.  A.  Ran- 
som, Sept.  26,  1882,  "  for  a  fare  register  and 
recorder,"  amounts  to  a  new  arrangement 
for  the  working  together  of  old  devices  into 
a  patentable  contrivance,  and  is  therefore 
vaUd.  Railway  Register  Mfg.  Co.  v.  Broad- 
way &*  S.  A.  R.  Co.,  22  Fed.  Rep.  655. 


Patent  No.  233,915,  granted  to  J.  B.  Ben- 
ton, Nov.  2,  1880,  for  a  fare  register,  is  not 
void  for  want  of  novelty.  Railway  Register 
Mfg.  Co.  V.  North  Hudson  County  R.  Co.,  24 
Fed.  Rep.  793.— Quoting  Stephenson  v. 
Brooklyn  Cross-Town  R.  Co.,  114  U.  S. 
149,  5  Sup.  Ct.  Rep.  777. 

Patent  No.  260,526,  granted  to  J.  B.  Ben- 
ton, July  4, 1882,  for  an  improvement  in  fare 
registers,  which  consists  of  a  combination 
which  includes  a  tell-tale  hand  to  indicate 
any  failure  to  reset  the  trip  hand  of  the  reg- 
ister at  zero  at  the  commencement  of  a 
trip,  is  not  infringed  by  a  device  which  is 
incapable  of  acting  as  a  tell-tale.  Railway 
Register  Mfg.  Co.  v.  Broadway  &^  S.  A.  R. 
Co.,  30  Fed.  Rep.  238. 

Patent  No.  206,565,  issued  to  Charles  B. 
Harris,  July  30, 1878,  for  an  improvement  in 
fare  registers, and  which  consists, asset  forth 
in  claims  i,  2,  4,  and  5,  of  a  device  which  is 
designed  to  guard  against  the  fraudulent  ma- 
nipulation of  fare  registers  used  on  street- 
cars, and  to  require  the  collector  of  fares  to 
make  a  registry  of  each  collection,  which 
cannot  be  omitted  without  exposure  to  de- 
tection, and  which  when  made  cannot  prac- 
tically be  obliterated,  must  be  limited,  in 
view  of  prior  foreign  patents,  to  the  specific 
mechanical  devices  which  constitute  the 
novelty  of  the  combination.  Railway  Reg- 
ister Mfg.  Co.  V.  Third  Ave.  R.  Co.,  33  Fed. 
Rep.  31. 

38.  Grain  elevators  —  Horse-rail- 
road switcli.— Where  a  suit  for  infringe- 
ment of  a  patent  for  loading  grain  into  ele- 
vators is  defended  on  the  ground  that  the 
invention  shows  no  patentable  combination, 
the  court  will  assume  from  common  knowl- 
edge that  it  was  old  at  the  date  of  the 
patent  to  construct  buildings  with  railroad 
tracks  running  into  or  alongside  of  them, 
and  with  apparatus  in  such  buildings  for 
elevatmg  into  the  upper  part  thereof  grain 
brought  in  cars  upon  such  tracks ;  and  that 
it  was  old  to  elevate  the  grain  into  a  hopper- 
scale,  where  it  was  weighed,  and  whence  it 
was  run  into  bins  by  a  spout ;  or  to  load 
cars  by  running  grain  into  them  from  a  bin 
in  an  elevator  building  by  means  of  the 
spout — such  being  the  claims  of  the  patent. 
Richards  v.  Michigan  C.  R.  Co. ,  40  Fed.  Rep. 
165. 

Patent  No.  117,198,  issued  to  Thomas 
Newman,  July  18,  1871,  for  an  improvement 
in  switches  for  horse  railroads,  which  is  de- 
scribed as  consisting  in  the  combination  of 


PATENTS   FOR  INVENTIONS,  30-41. 


an  oscillating  platform  with  u  movable  frog 
or  switch,  the  platform  being  arranged 
witiiin  a  railroad  track  so  tliut  it  can  be 
opei'ated  by  the  wciglit  of  the  horses  or 
other  animals,  thereby  moving  the  switi:h 
from  one  track  to  anotlier,  is  infringed  by 
the  switch  used  by  defendants,  which  appro- 
priates the  essence  of  the  invention,  with 
but  slight  changes  in  its  construction. 
Johnson  v.  Forty'Secomi  St.,  M.  &•  St.  N, 
A.  A'.  Co.,  33  /•«-(/.  Kf/>.  499. 

Thomas  Newman  was  the  pioneer  invent- 
or of  a  combination  in  patent  117,198  for 
a  practical  liorse-railroad  switcii  operated  by 
the  weight  of  draught  animals  oscillating  a 
tiptable,  the  vertical  movement  of  which  is 
converted  by  connecting  mechanism  into 
horizontal  movements  of  a  switch  tongue. 
Johnson  v.  Brooklyn  <S^  C.  R.  Co.,  40  Fed. 
Kep.  892. 

:)f).  Iiii|irovciiiciit  ill  cattio  cars.— 
Patent  No.  161,807,  issued  to  J.  R.  McPher- 
soi),  April  6,  1875,  for  an  improvement  in 
stock  cars,  and  reissued  April  4,  1876,  and 
relating  to  the  means  for  feeding  and  water- 
ing live  stock  during  a  long  journey  without 
stopping  or  unloading  the  cars,  by  means 
of  "  capacious  and  strong  water  troughs," 
is  void  for  want  of  novelty,  except  as  to 
what  is  called  the  "  water  shed,"  and  is  not 
infringed  by  troughs  used  for  the  same 
purpose,  but  not  located  within  the  cattle 
spaces  of  the  car,  and  which  empty  their 
contents  clear  of  the  floor  without  the  aid 
of  such  vater  sheds.  American  L.  S.  <S>* 
Af.  Transp.  Co.  v.  Street  S.  C.  Line,  46  Fed. 
Hep.  782. 

Patent  No.  168,061,  issued  to  Stevenson 
&  McGrath,  Sept.  21,  1875,  for  a  feed  and 
water  trough,  is  void  for  want  of  patentable 
novelty,  except  so  far  as  it  relates  to  a  con- 
tinuous shaft  which  supports  the  troughs, 
and  by  means  of  which  all  of  the  troughs 
are  turned  simultaneously.  American  L. 
S.  &*  M.  Transp.  Co.  v.  Street  S.  C.  Line,  46 
Fed.  Rep.  782. 

40.  Iiocomotive  Headlights.— Pat- 
ent No.  262,169,  issued  to  Edward  Wilhelm, 
Aug.  I,  1882,  for  an  improved  locomotive 
headlight,  according  to  claim  i,  covering 
"  a  reflector  provided  with  an  opening  be- 
hind the  burner  whereby  light  is  emitted 
back  ward  ly  into  thq<  headlight  case  for  illu- 
minatinc;  the  signal  plates  or  lenses  applied 
to  such  ..ise,  substantially  as  described," 
must  be  limited  to  a  reflector  having  an 
opening  behind  its  ».^,cx  acpiuaic  from  the 


burner  hole  or  chimney.  Steam  Gauge  &* 
L.  Co.  v.  Williams,  50  Fed.  Rep.  931,  i  U.  S. 
App.  218,  2  C.  C.  A.  83;  affirming  42  Fed, 
Rep.  843- 

Claim  2  of  the  above  patent  is  for  "a 
reflector  constructed  with  an  opening  be- 
hind the  burner,  and  an  auxiliary  reflect- 
or, whereby  the  light  emitted  backwarilly 
through  such  opening  is  directed  towards 
the  signal  plates  or  lenses."  Held,  that  this 
claim  must  be  limited  to  a  combination  of 
the  reflector  as  described  in  the  first  claim, 
and  is  not  infringed  by  a  reflector  having  an 
opening  behind  the  burner  in  combination 
with  the  auxiliary  reflector.  Steam  Gauge 
&"  L,  Co.  v.  Williams,  50  Fed.  Rep.  931,  i 
U.  S.  App.  218,  2  C.C.  A.  83 ;  afftrmittg  42 
Fed.  Rep.  843. 

41.  Lucoiuutivc  triiclcN.— The  claim 
of  letters  patent  granted  to  Alba  F.  Smith, 
Feb.  II,  1862,  for  an  "improvement  in 
trucks  for  locomotives  "  by  "  the  employ- 
ment in  a  locomotive  engine  of  a  truck  or 
pilot  wheels,  fitted  with  the  pendent  links 
o,  0,  to  allow  of  lateral  motion  to  the  engine 
as  specified,  whereby  the  drivers  of  said 
engine  are  allowed  to  remain  correctly  on 
the  track,  in  consequence  of  the  lateral  mo- 
tion of  the  truck,  allowed  for  by  said  pen- 
dent links,  when  running  on  a  curve,  as  set 
forth,"  is  not  anticipated  by  the  patent 
granted  to  Bridges  &  Davenport,  May  4,1841, 
for  an  "  improvement  in  railway  carriages." 
Locomotive  E.  S.  Truck  Co.  v.  Erie  R.  Co., 
10  Blatchf.  ( U.  S.)  292. 

Nor  is  such  claim  anticipated  by  the  pat- 
ent granted  to  Kipple  &  Bullock,  Decem-  • 
ber  20,  1859,  for  an  "  improvement  in  car 
trucks,"  although  the  mode  of  operation  of 
the  latter  truck,  perse,  in  a  car  having  a  like 
truck  at  the  other  end  is  the  same  for  all 
the  purposes  of  the  truck  itself,  that  it  is  in 
a  structure  which  has  driving  wheels  at  the 
other  end.  Nor  is  it  anticipated  by  the 
patent  granted  to  Levi  Bissell,  Aug.  4, 1857, 
for  an  "  improvement  in  trucks  for  locomo- 
tives." Locomotive  E.  S.  Trttck  Co.  v.  Erie 
R.  Co.,\o  Blatchf.  (U.  S.)  292. 

The  combination  of  Smith  is  patentable, 
because  it  produces  a  new  mode  of  opera- 
tion, and  new  results,  in  the  structure  as  a 
whole,  although  the  trucks  used  are  old  ; 
and  the  fact  that  his  patent  is  granted  for 
an  "improvement  in  trucks  for  locomotives," 
and  that  the  truck  he  uses  is  old,  and  that 
his  invention  is  really  an  improvement  in 
locomotives,  forms  no  objection  to  the  va- 


960 


PATENTS   FOR   INVENTIONS,  42-40. 


:1l 


liflity  of  the  patont.  l.tHomothiit  E.  S. 
Truck  Co.  V.  /y/f  a:  Ok,  io  liUilchf.  {U.  S.) 
292. 

42.  liiibricatiiiK' tiilH>s.  -The  scronrl 
branch  of  llu;  sixth  claim  of  patent  No. 
195,372,  ^,'ranl('(l  to  ,\sa  10.  Ilovey,  Sept.  18, 
1877,  for  an  improvement  in  enrlless-ropc 
traction  railways,  is  described  as  "  tlie  means 
for  lubricating  the  bearinjus  of  said  pulleys 
from  the  outside  of  the  tunnel."  He/d,  that 
the  use  of  tubes  for  carrying;  oil  throuj.;h 
inaccessible  journals  was  well  known  before 
the  application  for  the  patent,  and  it  there- 
fore lacks  invention  and  is  not  patentable. 
National  Cable  A'.  Co.  v.  Ml,  Adams  &•  E. 
P.  /.  A'.  Co.,  38  Ecd.  Etp.  840. 

4:t.  Macliiiicry  for  iiiakiiif;  or 
iiKMHliii);  rails— l>aiiia{;vH.— The  patent 
issued  to  J.  D.  Cawood,  Sept.  9,  1856,  for  an 
"  improvement  in  the  common  aiivil  and 
8wedf;e  block  for  the  purpose  of  weldin^j  up 
and  reforming  the  enrls  f)f  railroad  rails," 
construed,  and  held  not  void  as  a  matter  of 
law,  as  havinj;;  been  anticipated  by  prior  in- 
ventions, as  held  by  the  court  below.  Turrill 
V.  Michigan  S.  &^  A'.  /.  A'.  Co.,  i  Wall.  {U. 
S.)  49r.  — .Al'Pi.iKi)  IN  Tunill  v.  Illinois  C. 
R.  Co.,  3  Biss.  (U.  S.)  66,  72. 

The  Cawood  patent  "  for  an  alleged  new 
and  useful  improvement  in  the  common 
anvil  or  swedge  block  for  the  purpose  of 
welding  up  and  reforming  the  ends  of  rail- 
road rails"  is  not  infringed  by  what  are 
known  as  the  "  Beebee  &  Smith,"  the  "  Bay- 
onet Vice,"  and  the  "Michigan  Southern" 
machines  ;  but  it  is  infringed  by  the  "  Whit- 
comb,"  the  "  Etlieridge."  and  the  "  Illinois 
Central"  machines.  Illinois  C.  li.  Co.  v. 
Turrill,  94  [/.  S.  695,  1 5  Am.  Ay.  Rep.  387 ; 
reversing  3  Hiss.  72,  5  Hiss.  344. 

The  above  patent  is  both  new  and  useful, 
and  therefore  valid.  Turrill  \.  Illinois  C. 
A\  Co.,  3  Hiss.  ([/.  S.)  66;  see  94  (/.  S.  695, 
15  Am.  Ry.  A'e/>.  387.  —  Ai'l'LVlNO  Turrill 
V.  Michigan  S.  &  N.  I.  R.  Co.,  i  Wall.  491. 
—Followed  in  Turrill  v.  Illinois  C.  R. 
Co.,  3  Biss.  (U.  S.)  72. 

The  Cawood  patent  is  not  infringed  by 
what  is  known  as  "  Bain's  Reversible  Rolls, ' 
which  has  no  jaws  for  holding  the  rail,  as 
the  Cawood  patent  has,  and  no  hammer  is 
used.  Turrill  v.  Illinois  C.  li.  Co.,  5  Biss. 
{U.  S.)  344  ;  reversed  on  other  grounds  in  94 
U.  S.  695.  IS  Am.  A'y:  Rep.  387. 

In  an  action  for  infringing  the  above 
patent,  where  the  evidence  shows  that  there 
was  no  other  way  of  repairing  rails  except 


by  plaintiff's  machine  or  the  common  anvil, 
it  is  proper  to  compare  tlie  cost  of  doing 
the  work  in  the  two  methods,  there  bcinj;  a 
saving  by  the  use  of  plaintilT's  machine,  for 
tile  purpose  of  estimating  the  damages. 
Turrill  v.  Illinois  C.  R.  Co.,  5  Hiss.  (U.  .S.) 
344 ;  rn'crseii  in  part  in  94  U.  .S".  695,  1 5  .hn, 
Ry.  Rep.  387. 

Where  tlu;  evidence  shows  that  defend- 
ants have  used  plaintiff's  patent  for  rejiair- 
iiig  rails,  it  is  not  competent  for  defendants 
to  show  that  it  was  not  profitable  to  repair 
rails  with  the  machine,  or  that  it  would 
have  been  better  to  have  disposed  of  the 
old  rails  or  rerolled  them.  The  very  fact 
of  using  the  machine  is  evidence  that  it  was 
profitable.  Turrill  v.  Illinois  C.  R.  Co.,  j 
Biss,  ( U.  S. )  344  ;  reversed  in  pa  - '  in  94  U. 
S.  695,  15  Am.  Ry.  Rep.  387. 

Where  a  company  is  charged  with  in- 
fringing plaintiff's  patent  for  repairing  rails, 
and  the  evidence  shows  that  in  the  mean- 
time there  his  been  a  consolidation,  and  a 
new  company  formed,  the  master,  in  ascer- 
taining the  damages,  should  show  the  extent 
of  the  infringement  both  by  the  old  and 
new  company,  as  it  appears  that  the  new 
company  may  not  be  liable  for  the  debts  of 
the  old.  Turrill  v.  Illinois  C.  R,  Co.,  5 
Biss,  {U.S.)  344 ;  reversed  in  part  in  94  U. 
S.  695,  1 5  Am.  Ry.  Rep.  387. 

44.  Oil  earn.— Patent  No.  216,506,  is- 
sued to  M.  C.  Brown,  June  17,  1879,  which 
consists  in  dividing  cars  into  two  or  more 
parts  for  the  carriage  of  oil  and  other  mer- 
chandise in  the  same  car,  and  especially  to 
avoid  returning  oil  cars  empty,  is  void  for 
want  of  patentable  novelty.  Standard  Oil 
Co.  V.  Southern  Pac.  R.  Co.,  54  Eed.  Rep. 
521,  7  U.  S.  App.  636,  4  C.  C.  A.  491 ; 
affirming  48  Fed.  Rep.  109,  which  reversed 
42  Fed.  Rep.  295,  14  Saioy.  430. 

45.  Railroatl  t'roj^s.— Reissued  patent 
No.  8914,  issued  to  plaintiff  Weir,  Sept.  30, 
1879,  for  "an  improvement  in  railroad 
frogs,"  and  which  uses  the  U  iron  as  a  mode 
of  connecting  the  point  and  wing  rails,  is 
not  valid,  on  the  ground  that  it  was  publicly 
used  and  well  known  before  the  time  of 
plaintiff's  claim  as  the  inventor.  Weir  v. 
Morden,  2 1  Fed.  Rep.  243. 

46.  Railway  sig^rials.  —  The  privilege 
to  manufacture  and  use  the  improved  rail- 
road signal  secured  by  patent  No.  284,716, 
issueJ  10  G.  W.  Blodgett  and  G.  R.  Hardy, 
Fjtyx.  II,  1883,  was  granted  to  a  railroad 
rimpany.  Defendant,  a  manufacturer,  learn- 


PATENTS    FOR   INVENTIONS,  47-ftl.— PAUPERS,  1,  2. 


961 


Hon  anvil, 
:  of  doing 
re  bcin^;  a 
jchinc,  for 
flaniancs. 
iss.  {17.  S.) 
95-  'S  ■''«• 

iit  rlefeiul- 
for  repair- 
Jcfcndants 
:  to  repair 
I  It  would 
scd  of  the 
;  very  fact 
that  it  was 
•.  A'.  Co.,  5 
■ '  in  94  {/, 

A  with  in- 
lirinfT  rails, 
the  meaii- 
:ion,  and  a 
r,  in  asccr- 
•  the  extent 
le  old  and 
It  the  new 
he  debts  o( 
A'.  Co.,  5 
r/  /«  94  (/, 

216,506,  is- 
879,  which 
vo  or  more 
other  nicr- 
ipecially  to 

s  void  for 
imfani  Oil 

Fed.  Rep. 
C.  A.  49'  ; 
:h  reversed 

ued  patent 
r,  Sept.  30, 

railroad 
1  as  a  mode 
ng  rails,  is 
ras  publicly 
lie  time  of 

Weir  V. 

le  privilege 
proved  rail- 
'4o.  284,716, 
,  R.  Hardy, 
a  railroad 
:urer,  learn- 


ing  that  the  company  intended  to  erect  such 
signals,  took  a  contract  to  manufacture  and 
furnish  tlicin  at  a  certain  price.  Ililit,  that 
the  transaction  was  for  the  sale  of  the  sig- 
nals to  the  railroad  company,  and  therefore 
defendant  infringed  the  patent,  and  could 
not  claim  to  1)0  a  mere  employe  of  the  rail- 
road. Union  S,  6f  S.  Co,  v.  Johnson  R. 
Sij^mil  Co.,  52  Fed.  Rep.  867. 

47.  SpjirU  arresters.  —  PlaintilT  sued 
for  an  infringement  of  a  reissue  of  the  pat- 
ent granted  to  Kearney  &  Tronson,  April 
II,  1871,  for  improvements  in  spark  arrest- 
ers on  locomotives,  which  consisted  of  a 
spark  arrester  inside  of  the  smokehcad  of 
the  boiler,  instead  of  the  smokestack  above, 
with  a  grate  with  perpendicular  bars  with 
fixed  apertures  sufficiently  fieie  to  arrest  the 
sparks.  I/eid,  that  this  was  not  infringed 
by  what  is  known  as  the  Vanclain  spark 
arrester,  which  consists  of  a  perforated 
cylindrical  box  or  screen,  in  which  the  per- 
forations or  apertures  consist  of  horizontal 
slots  cut  out  of  sheet  iron.  Kearney  v.  Le- 
hijih  Valley  R.  Co.,  32  Fed.  Rep,  320. 

The  above  patent  is  not  to  be  restricted 
to  the  use  of  what  is  known  as  a  petticoat 
pipe.  Under  the  claims  of  the  |)atent  the 
pipe  may  be  of  any  form  or  dimension. 
Kearney  v.  Lehigh  Valley  R.  Co.,  yi  Fed. 
Rep.  320. 

4H.  Signal  bclLs  in  compartment 
cars.— Patent  No.  122,622,  issued  to  W.  D. 
Mann,  Jan.  9,  1872,  for  an  improvement  in 
compartment  railway  cars,  claim  7,  which 
is  for  signal  bells  extending  from  each 
compartment  to  the  porter's  room,  is  void 
for  want  of  novelty  as  such  bells  had 
been  in  common  use  before  the  patent. 
Mann's  lioudoir  Car  Co.  v.  Monarch  Parlor 
Sleepini^  Car  Co.,  34  Fed,  Rep.  130. 

4«.  8teani  .safety  valves.— In  view  of 
the  prior  state  of  the  art  the  reissue  patent 
granted  to  E.  H.  Aslicroft,  assignee  of 
William  Naylor,  Nov.  9,  1869,  for  a  steam 
safety  valve  having  an  overhanging,  down- 
ward-curved lip  surrounding  an  annular 
recess,  into  which  the  steam  passes  as  it 
issues  from  under  the  valve,  if  valid,  must 
be  limited  to  the  combination  of  the  other 
elements  of  the  device  with  an  annular 
recess  of  the  precise  form  described.  So 
limited,  the  patent  is  not  infringed  by  the 
use  of  a  steam  safety  valve  substantially  the 
same  as  that  described  and  shown  in  the 
patent  granted  to  George  W.  Richardson, 
Sept.  25,  1866,  although  that  valve  has  an 
6  D.  R.  D.  -61 


overhanging,  downward-curved  lip  and  an 
annular  recess  suiroiiiiding  the  valve  scat, 
into  which  a  portion  of  the  issuing  steam 
is  deflected,  the  lip  and  recess  being,  in 
construction  and  mofle  of  operation,  sub- 
stantially difTercnt  from  the  lip  and  recess 
described  in  the  Naylor  patent.  Ashcroft 
v.  Host  on  &^  L.  R.  Co.,  1  Holmes  iU.  S.) 
366. 

rtO,  Track  cleaners.— Claim  4  of  re- 
issued letters  patent  No.  8388,  granted  to 
Augustus  Day,  Aug,  27,  1878,  for  an  im- 
provement ill  railroafl  track  cleaners,  is  in- 
valid, as  possessing  <:o  patentable  novelty. 
Day  v.  Fair  J/aven  &^  //'.  A".  Co.,  132  l'.  S. 
98,  10  Sup,  Ct.  Rep.  1 1  ;  affinnin^  23  I'ed. 
Rep.  189. 

51.  Ventilating:  apparatns.— Patent 
No.  327,289,  granted  to  \V.  D.  Mann,  Sept. 
29,  1885,  "for  an  improved  system  and  ap- 
paratus for  ventilating  railway  cars,"  having 
for  its  object  the  providing  of  the  car  with 
an  even  supply  and  exhaust  of  fresh  warm 
air,  from  which  all  dust  and  impurities  have 
been  removed  by  passing  it  through  a 
(lust  arrester  consisting  of  a  water  tank 
lined  with  excelsior,  is  valid,  and  is  in- 
fringed by  a  ventilating  apparatus  which 
onlyditTers  in  usinga  box  with  wire  nettings 
filled  with  wet  sponges  as  a  dust  arrester. 
Mann's  Boudoir  Car  Co.  v.  Monarch  Parlor 
Sleeping  Car  Co,,  34  Fed.  Rep,  1 30. 

PAUPERS. 

1.  Liability  for  support  of.  — Massa- 
chusetts statutes  making  a  person  liable  for 
the  support  of  another  person  whom  he 
may  bring  into  the  state  do  not  apply  to 
a  common  carrier  of  passengers  which  car- 
ries a  person  into  the  state  as  a  passenger 
without  any  reason  to  believe  that  he  is 
likely  to  become  a  pauper.  Fitchbing  v. 
Cheshire  R.  Co.,  no  Mass.  210. 

Laborers  who  come  to  this  country  from 
European  countries,  without  their  families, 
and  who  are  employed  under  railroad  con- 
tractors, and  who  may  quit  work  or  be 
discharged  at  any  time,  and  who  live  in 
temporary  shanties,  do  not  gain  a  residence 
in  a  town  by  working  therein  one  year, 
under  N.  Y.  Rev.  St.  2111,  §  29.  In  re 
Hector,  24  N.  V.  Snpp.  475. 

2.  Suits  in  forn)n  pauperis.— N.  Y. 
Code  Civ.  Pro.  §  458,  which  allows  poor 
persons  to  apply  to  the  court  for  leave  to 
prosecute  a  suit  as  a  poor  person,  applies  to 


963 


PAVING— PAYMENT. 


U|? 


infant  plaintiffs.      Tpbias\.  Broadiuay  &-•  S. 
A.  A'.   Co.,  39  .V.  )'.  5.  A'.   183.   14  A'.    V. 

a  II pp.  641. 

Applications  to  sue  in  forma  pauperis  are 
not  to  be  encouraged,  and  although  an  in- 
fant cannot  apjily  for  leave  to  sue  in  this 
way  until  after  a  <;uardian  ad  litem  is  ap- 
p(jinteti,  yet  where  the  suit  is  actually  be- 
gun and  the  application  to  sue  in  forma 
pauperis  is  evidently  an  afterthought,  tiie 
application  siiould  be  denied.  Glasberg  v. 
Dry  Dock,  E.  B.  &^  JJ.  A\  Co..  12  Civ.  Pro. 
(N.  V.)  50. 

An  infant  sued  to  recover  damages  for 
personal  injuries,  and  an  order  was  granted 
requiring  the  guardian  ad  litem  to  make  a 
deposit  or  give  security  for  costs.  Two 
months  afterwards  the  guardian  applied  on 
behalf  of  the  infant  for  leave  to  sue  in  forma 
pauperis.  Held,  that  while  an  infant  cannot 
apply  for  leave  to  sue  in  forma  pauperis 
until  after  a  guardian  ad  litem  is  appointed, 
yet  where  the  suit  is  begun  and  the  appli- 
cation so  to  sue  is  an  afterthought,  as  in 
this  case,  the  appfication  siiould  be  denied. 
Glasberg  v.  Dry  Dock,  E.  B.  &•  B.  R.  Co.,  12 
Civ.  Fro.  {^N.  Y.)  50. 


PAVING. 

Duty  of  street-railway  companies  as  to,  see 
Street  Railways,  133-J5!{. 

Liability  of  steam  railroads  in  cities  respect- 
ing, see  Streets  and  Highways,  341- 
359. 


PAYMASTERS. 

Rights,  powers,  and  duties  of,  see  Officers, 
12- 


PAYMENT. 

By  company  of  mortgages  on  land  con- 
demned, see  Eminent  Domain,  141. 

For  goods  delivered  C.  O.  D.,  see  Express 
Companies,  63. 

—  land  granted,  taking  stock  in,  see   Emi- 

nent Domain,  198. 

—  lands  condemned,   necessity  of,   to  the 

passing  of  title,   see   Eminent  Domain, 
852. 

—  stock  subscribed,   see  Subscriptions  to 

Stock,  10-23. 

as  a  defense  to  suit  to  enforce  lia- 
bility to  creditors,  see  Stockholders, 
04. 

taking  note  in,  see  Siock,  18. 

In  Confederate  money,  see  War,  3. 


In  lieu  of  taxation,  construction  of  statute 

providing  for,  see  Taxaiion,  59. 
Into  court  generally,  see  Tkm>ek,  O,  7. 
under  Canadian  expropriation!  acts,  see 

Emini-.nt  Domain,  1225. 
English  compulsory  purchase  laws, 

see  F.MiNE.\r  Domain,  1  1,'»3. 
Of  amount  due  before  applying  for  injunction, 

see  TAXArioN,  344. 

—  change  bills,  enforcement  of,  see  Change 

Hii.i.s,  2. 

—  charges,  averment  of,  in  actions  against 

carriers  of  goods,  SL-e  Carriage  of   Mer- 
ciiAxuisE,  727. 

—  claims  by  receivers,   see   Receivers,  75- 

9.'<. 

—  costs  of  former  suit,  see  Costs,  3. 

—  coupons,  see  Coupons,  7-8. 

—  coupon,  when  compelled  by  mandamus, 

see  Coupons,  23. 

—  damages,   stay  in  execution    unti',    see 

Eminent  Domain,  1031. 

—  debts,  issuing  bonds  in,  see  Bonds,  O. 

—  dividends,  guaranty  of,  see  Guaranty,  3. 

—  fare,  see  Tickkis  and  Fares,  117-129. 
necessity  of,  see  Carriage  of  Passen- 
gers, 13. 

—  fee  to  secretary  of  state  on  consolidation, 

see  Consolidation,  19. 

—  given  sum  in  lieu  of  taxes,  provision  for, 

see  Taxation,  149. 

—  judgment  against  corporation  as  a  defense 

in    creditor's    suit,    see    S iockholders, 
65. 

—  land  damages  into  court,  see  Eminent  Do- 

m\in,  397-403. 

presumption  of,  from  lapse  of  time, 

see  Eminent  Domain,  382. 

—  mortgage,  provisions  as  to  time  of,   see 

Mortc-.ages,  80. 

—  mortgages,  see  Mortgages,  308. 

—  note,  guaranty  of,  see  Guaranty,  4. 

—  overcharge    under  protest,  see  Charges, 

40. 

—  premium  on  insurance  policy,   see  Acci- 

dent Insurance,  7. 

—  price  for  right  of  way,  enforcement  of,  see 

EMiNENr  Domain,  230. 

—  profits,  guaranty  of,  see  Guaranty,  O. 

—  rent,  enforcement  of,  see  Equity,  18. 

—  taxes,  see  Taxation,  290-305. 

effect  of,  to  create  adverse  possession, 

see  Adverse  Possession,  11. 

—  wages,  by  garnishee  to  creditor,  effect  of, 

see  Attachment,  etc,  38. 

Receiving  a  check  in,  see  Carriage  of  Mer- 
chandise, 271. 

Taking  stock  in,  see  Construction  of  Rail- 
ways, 25. 

Tender  and  refusal,  when  equivalent  to,  see 
Eminent  Domain,  385i 


of  statute 

M. 

«,  7. 

tii  acts,  see 

liase  laws, 
injunction, 
ee  Change 
ns  against 

E    OF    MeR- 
IVERS,  75- 
3. 

mandamus, 
unti' ,    see 

NDS,  O. 
ARANTY,  3. 

17-12«. 

;  OF  Passen- 

nsolidation, 
o vision  for, 
as  a  defense 

)CKHOLDERS, 
EMINENT  DO- 

pse  of  time, 
ime  of,  see 
08. 

TY,  4. 

;e  Charges, 

f,   see  Acci- 

ment  of,  see 

ANTV,  6. 
lY,   18. 

05. 

possession, 

:or,  effect  of, 
age  of  Mbr. 
ION  OF  Rail- 
•lent  to,  see 


PAYMENT,  1-3. 


063 


"".^at  may  be  taken  in,  at  foreclosure  sale, 
see  Mortgagks,  240. 

—  necessary  to  effect  redemption  of  mort- 
gaged property,  see  Mortgagks,  317. 

When    deemed    voluntary,   see    Taxation, 
338,  33U.    • 
See  also  Accord  and  Satisfaction. 

1.  Wlio  may  receive  payiiieiit. — 

Payment  of  a  claim  to  a  de  facto  adminis- 
trator, though  hi=  appointment  be  errone- 
ous und  voidable,  will  bind  the  estate  and 
discharge  the  debtor.  Chicago,  B.  iS>»  Q.  R. 
Co.  V.  Gould,  64  Iowa  343,  20  .V.  W.  Hep. 
464. 

2.  Payiiiciits  other  than  in  money, 
generally— Coiile<ierate  currency.— 
When  a  permission  is  in  the  alternative  to 
pay  in  money  or  in  some  other  medium  of 
payment,  the  promisor  has  an  election 
either  to  pay  in  money  or  in  the  equivalent, 
but  after  the  day  of  payment  has  elapsed 
without  payment  the  right  of  election  on 
the  part  of  the  promisor  is  gone,  and  the 
promisee  is  entitled  to  payment  in  money. 
So  held,  where  a  railroad  company  issued 
its  bonds,  with  interest  payable  semi-annu- 
ally, payable  either  in  money  or  in  scrip. 
Marlorv.  Texas  &*  P.  K.  Co.,  21  Fed.  Rep. 

383. 

A  bond  of  a  railroad  mpany  for  the 
payment  of  money  executed  in  1862  comes 
within  the  provision  of  the  ordinance  of  N. 
Car.  convention  cf  1865,  and  is  "  presumed 
to  be  solvable  in  money  of  the  value  of 
Confederate  currency,  subject  to  evidence 
of  a  different  intent  by  the  parties."  Alex- 
ander V.  At  antic,  T.  6^  O.  R,  Co., 67  N.  Car. 
198,  2  Am.  Ry.  Rep.  181, 

In  the  absence  of  all  evidence  to  show 
the  consideration  of  such  bond,  or  that  the 
parties  intended  otherwise  than  is  presumed 
by  the  ordinance,  a  diflerent  intent  will  not 
be  implied  from  a  provision  in  the  charter 
that  the  company  may  make  contracts  for 
building  the  road,  and  may  pay  contractors 
in  bonds  at  par  value.  Alexander  v.  At- 
lantic, T.  (S-  O.  R.  Co.,  67  N.  Car.  198,  2 
Am.  Ry.  Rep.  181. 

3.  Taking  a  checlc,  hill,  or  note  in 
payment. — If  it  appears  in  an  action 
against  a  railroad  for  arrears  of  pay  for  ser- 
vices that  judgment  was  rendered  against 
the  company  as  garnishee  of  plaintiff  in 
proceedings  in  attachment,  that  the  com- 
pany gave  its  check  to  the  justice  who 
entered  the  judgment,  and  that  the  check 
was  indorsed  and  passed  to  the  attaching 


creditor,  a  presumption  arises  that  the 
check  was  accepted  as  payment  of  the  judg- 
ment, and  was  itself  paid,  and  it  is  error  to 
submit  the  question  of  payment  of  the  judg- 
ment to  the  jury.  Beatty  v.  Lehigh  Valley 
R.  Co.,  134  Pa.  St.  294,  19  Atl.  Rep.  745. 

Plaintiff  was  a  railroad  contractor  and 
settled  with  a  firm  who  were  the  agents  of 
the  company,  one  of  the  firm  being  its 
president,  and  received  a  part  in  cash  for 
the  amount  due  for  work,  and  the  presi- 
dent's note  for  the  remainder,  being  in- 
formed that  there  was  not  enough  cash  on 
hand  to  pay  in  full.  Held,  that  the  taking 
of  the  note  and  giving  a  receipt  did  not 
relieve  the  company  from  liability,  in  the 
absence  of  proof  of  an  express  agreement 
to  take  the  note  as  actual  payment ;  and  it 
mattered  not  that  the  president  was  largely 
indebted  to  the  company  at  the  time  and 
was  credited  with  the  amount  of  the  note. 
Higby  V.  New  York  &^  H.  R.  Co.,  3  Bosw. 
{N.  Y.)  497,  7  Abb.  Pr.  259. 

Whether  a  note  was  received  as  payment 
of  an  account  is  a  questiop  of  fact  depend-  ' 
ing  upon  intention,  but  such  intention 
appears  here  from  the  manner  of  closing 
the  account  by  note  for  balance,  together 
with  receipt  for  such  note  expressed  to  be 
in  settlement,  and  a  deposit  of  collaterals  to 
secure  the  payment  of  the  note.  Ex  parte 
Williams,  12  Am.  &^  Eng.  R.  Cas.  425,  17 
So.  Car.  396.  —  Quoting  Townsends  v. 
Stevenson,  4  Rich.  (So.  Car.)  62. 

Besides,  the  payee  of  such  note  having 
transferred  it  with  the  collaterals  for  value, 
and  the  collaterals  having  been  sold  by  the 
transferee,  the  original  cause  of  action  on 
the  account,  if  still  existing,  was  then  de- 
stroyed. Ex  parte  Williams,  12  Am.  &* 
Eng.  R.  Cas,  425,  17  So.  Car.  396. 

Receiving  "  time  checks  "  of  a  railroad 
in  satisfaction  of  a  note  by  a  creditor  of 
his  debtor  is  a  payment.  Swear it^en  v. 
Buckley,  i  Tex.  Unrep.  Cas.  421.— Quoting 
Robson  V.  Watts,  11  Tex.  768;  Jennings  v. 
Case,  17  Tex.  673.  Reviewing  Boulware 
V.  Robinson,  8  Tex.  330 ;  McNeil  v.  Mc- 
Camley,  6  Tex.  165  ;  Cartwright  v.  Jones,  13 
Tex.  I  ;  Piedmont  &  A.  Life  Ins.  Co.  v. 
Ray.  50  Tex.  518. 

A  railroad  company  sold  the  right  to  cut 
lumber  on  its  lands,  the  company  reserving 
"  full  and  complete  ownership  and  control 
of  all  lumber  which  shall  be  cut  from  the 
*  ♦  *  premises,  wherever  and  however  it 
may  be  situated,  until  all  sums  due  or  to 


M^ 


964 


PAYMENT,  4,  5. 


RSii 


^^-i 


1 


'i  mi 


become  due  for  stumpnge  *  *  *  shnll  be 
fully  paid."  A  draft  on  third  parties,  whicii 
was  given  for  lumber  cut,  was  accepted, 
and  approved  by  the  company.  The  lum- 
ber was  then  sold  to  the  same  company  on 
whom  the  draft  was  drawn,  who  had  notice 
of  the  terms  on  which  the  lumber  was  cut, 
but  before  the  draft  was  paid  it  failed,  and 
its  assignee  sold  the  lumber.  He/ti,  that 
the  acceptance  of  the  draft  was  not  payment, 
and  that  the  equitable  interest  of  the  com- 
pany followed  the  lumber'into  the  hands  of 
the  assignee,  and  that  the  company  could 
recover  from  him.  Ng7V  Brunswick  R,  Co. 
V.  McLeod,  17  New  Bran.  257. 

4.  When  payiiieiit  must  be  ninde 
in  coin. — In  an  action  against  the  Balti- 
more &  Ohio  railroad  company  by  the 
stJite  to  recover  a  certain  amount  claimed 
to  be  due  in  gold  under  a  contract  entered 
into  under  the  Md.  Act  of  1835  known  as 
"The  Eight  Million  Loan  Bill,"  and  of  the 
act  of  1838 — held,  that  as  the  law  stood  at 
the  date  of  the  contract  the  state  could 
have  required  payment  in  gold,  and  that  at 
the  date  of  the  institution  of  the  action 
the  company  was  bound  to  pay  the  divi- 
dend in  gold,  but  by  the  operation  of  the 
legal-tender  laws  the  company  was  exoner- 
ated from  such  obligation,  it  not  appear- 
ing that  it  was  the  intention  of  the  par- 
ties that  the  dividend  should  be  paid  in 
gold  specifically.  Baltimore  &*  O.  R.  Co. 
v.  State,  36  Md.  519.—  Distinguishing 
Lane  County  v.  Oregon,  7  Wall.  (U.  S.)  71. 
Reviewing  Hepburn  v.  Griswold,  8  Wall. 
603  ;  Knox  v.  Lee,  12  Wall.  457. 

The  Pacific  railroad  state  bonds  issued 
under  the  act  to  expedite  the  construction 
of  the  Pacific  railroad  and  Hannibal  & 
St.  Joseph  railroad,  approved  February  22, 
1851,  being  payable  on  their  face  in  gold 
and  silver,  can  be  met  only  by  payment  of 
the  sum  called  for  in  gold  and  silver,  and 
not  by  payment  of  the  amount  in  legal- 
tender  currency.  The  legal-tender  act  can- 
not affect  this  obligation.  But  where  the 
legislature  has  determined  to  pay  the  bonds 
in  legal-tender  currency,  the  supreme  court 
has  no  power  to  interfere,  and  mandamus 
to  compel  the  fund  commissioners  to  pay 
said  bonds  in  gold  and  silver  coin  will  not 
lie.     State  ex  rel.  v.  Hays,  50  Mo.  34. 

5.  Volnntary  payments— Biglit  to 
recover  back  payments.*  —  Where  a 

*  See  also  Charges,  30-58. 


carrier  makes  an  unlawful  freight  charge, 
tile  shipper  may  pay  it  rather  than  forego 
the  shipment,  and  recover  back  the  illegal 
charge.  The  payment  under  such  circum- 
stances cannot  be  said  to  be  voluntary. 
Mobile  &•  M.  R.  Co.  v.  Stciiur,  61  Ala.  559. 
— Followed  in  Louisville,  E.  &  St.  L. 
Con.  R.  Co.  V.  Wilson,  132  Ind.  517. 
Quoted  in  Peters  v.  Marietta  &  C.  R. 
Co.,  42  Ohio  St.  275.  Reviewed  in  West 
Va.  Tiansp.  Co.  v.  Sweetzer,  22  Am.  &  Eng. 
R.  Cas.  469,  25  W.  Va.  434. 

If  payment  beyond  the  rate  specified  in 
the  charter  be  made  voluntarily  by  the 
shipper  through  mere  ignorance  of  the  law, 
or  paid  "where  the  facts  are  well  known, 
and  there  is  no  misplaced  confidence,  and  no 
artifice,  or  deception,  or  fraudulent  practice 
is  used  by  the  otlier  party,"  an  action  will 
not  lie  to  recover  it  back.  Arnoldv.  Georgia 
R.  &*  B.  Co.,  50  Gil.  304. — Not  followed 
IN  Louisville,  E.  &  St.  L.  Con.  R.  Co.  v, 
Wilson,  132  Ind.  517. 

And  where  the  overcharge  is  voluntarily 
paid  under  no  mistake  of  facts,  and  there  is 
no  duress,  fraud,  or  extortion,  plaintiff  is  not 
entitled  to  recover.  Potomac  Coal  Co.  v. 
Cumberland  &>  P.  R.  Co.,  38  Md.  226.— 
Reviewing  and  approving  Mayor,  etc.,  of 
Baltimore  v.  Leflfernian,  4  Gill  431  ;  Morris 
V.  Mayor,  etc.,  of  Baltimore,  5  Gill  1i,^ ; 
Lester  t/.  Mayor,  etc.,  of  Baltimore,  29  Md, 
418.— Disapproved  in  Mobile  &  M.  R.  Co. 
V.  Steiner,  61  Ala.  559;  West  Va.  Transp. 
Co.  V.  Sweetzer,  22  Am.  &  Eng.  R.  Cas. 
469,  25  W.  Va.  434. 

And  the  fact  that  the  party  at  the  time 
of  making  the  payment  files  a  written  pro- 
test does  not  make  the  payment  involuntary. 
Kansas  Pac,  R.  Co.  v.  Wyandotte  County, 
Com'rs,  16  Kan.  587.— Followed  in 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Atchison 
County  Com'rs,  47  Kan.  722. 

The  rule  that  a  payment  voluntarily 
made  under  a  mistake  of  law,  but  with  a 
full  knowledge  of  the  facts,  cannot  be  re- 
covered back  rests  upon  general  principles 
of  public  convenience,  and  applies  to  a 
corporation  as  well  as  to  natural  persons, 
and  a  corporation  cannot  recover  the  price 
of  goods  delivered  in  payment  of  a  sub- 
scription to  the  stock  of  a  railroad  made 
ultra  vires.  Valley  R.  Co.  v.  Lake  Erie 
Iron  Co.,  46  Ohio  St,  44,  I  L.  R.  A.  412,  18 
A^.  E.  Rep.  486. 

As  between  two  innocent  parties,  that  one 
who  has  been  guilty  of  laches  must  suffer 


i 


PAYMENT,  6-8.— PENAL   STATUTES. 


965 


jht  charge, 
than  forego 
c  the  illegal 
ich  circum- 

voluntary. 
)i  Alit.  559. 

&  St.  L. 
Ind.  517. 
a  &  C.  R. 
ED  IN  West 
\.m.  &  Eng. 

specified  in 
ily    by    the 

of  the  law, 
veil  known, 
;nce,  and  no 
ent  practice 

action  will 
</v.  Georgia 

FOLLOWED 

.   R.  Co.  V. 

voluntarily 
and  there  is 
aintif!  is  not 

Coal  Co.  V. 

Md.  226.— 
layor,  etc.,  of 
431  ;  Morris 

5  Gill  247; 
lore,  29  Md. 
&  M.  R.  Co. 

Va.  Tiansp. 
!ng.   R.  Cas. 

at  the  time 
written  pro- 
involuntary. 
iotte  County, 
.LOWED  IN 
V.   Atchison 

:  voluntarily 
r,  but  with  a 
an  not  be  re- 
al principles 

applies  to  a 
ural  persons, 
iver  the  price 
nt  of  a  sub- 
ailroad  made 
ir.  Lake  Erie 

R.  /I,  412,  18 

rties,  that  one 
s  must  suf!er 


the  wrong.  Money  paid  by  one  party  to 
another,  without  consideration  and  by  mis- 
tal<e,  becomes  so  much  money  received  by 
him  to  the  use  of  the  party  paying,  for 
which  he  is  accountable  on  demand.  Steli- 
dins  V.  Union  Pac.  R.  Co.,  2  VVyovi.  71. 

Where  the  treasury  gives  to  a  collector 
of  customs  a  peremptory  admonition  to  de- 
posit all  moneys  received  by  him  in  the 
treasury,  a  deposit  of  "  receipts  for  storage  " 
will  not  be  deemed  a  voluntary  payment, 
though  the  collector  be  entitled  to  them  as 
a  portion  of  his  compensation.  Ellsworth 
V.  United  States,  14  Ct.  of  CI.  382. 

6.  Ovcrim.yiiieiit— Recovery  of  ex- 
cess.* —  Where  the  agent  of  a  railroad 
company  agrees  to  pay  only  what  the  engi- 
neer of  the  company  certifies,  and  supposes 
he  is  paying  no  more,  while  in  fact  he  pays 
more  to  a  contractor,  the  company  may 
recover  the  sum  erroneously  paid.  Balti- 
more &■*  S,  R,  Co.  V.  Faunce.  6  Gill  {Md.) 
68 

Defendant's  claim  was  $2436. 10,  and  liis 
agent,  intending  to  pay  that  sum,  errone- 
ously and  unconsciously  paid  $3306.10, 
which  was  made  up  of  $1006  in  small  notes 
illegally  issued  by  plaintiff  and  $2300.10  in 
current  money.  Defendant  received  the 
whole  as  money,  and  upon  immediate  de- 
mand refused  to  return  the  small  notes  or  the 
overpayment.  Held,  in  an  action  for  money 
had  and  received,  that  plaintiff  might  show 
the  error,  and  defendant  could  not  defend 
upon  the  ground  that  the  small  notes  were 
illegally  issued.  Baltimore  &•  S.  R.  Co.  v. 
Faunce,  6  Gill  {Md.)  68. 

7.  Application  of  payments.  — 
Where  money  paid  by  a  corporation  on 
several  contracts,  some  of  which  are  ultra 
vires,  is  by  the  act  of  the  corporation  itself 
appropriated  to  particular  contra'"ts,  such 
payment  is  valid,  notwithstanding  the  e.xist- 
etice  of  legal  objections  to  the  contracts  to 
which  the  money  was  so  applied.  Will- 
iamson V.  A'eiii  Jersey  Southern  R.  Co.,  i8 
A'./.  Eg.  277,  14  Am.  Ry.  Rep.  34 ;  reversed 
in  29  N.  J.  Eg.  311. 

A  debtor  paying  money  to  a  creditor  is 
entitled  to  have  it  placed  to  the  credit  of  a 
particular  claim,  but  if  he  makes  no  selec- 
tion the  creditor  can  apply  it  where  he 
chooses.  If  neither  debtor  nor  creditor  has 
made  an  application,  the  court  will  apply  it 

*  Overcharges  paid  under  protest  may  be  re- 
covered back,  see  note,  51  Am.  Rep.  820. 


to  the  claim  for  which  the  secMrity  is  most 
precarious.  Hempfield  R.  Co.  v,  Thornburg, 
I   W.  Va.  261. 

Plaintiff  sold  a  parcel  of  land  to  defendant 
company  for  $300  and  a  right  of  way  for 
$1225,  and  agreed  to  remove  certain  build- 
ings for  $2275.  The  company  paid  him 
$2012.  and  alter  the  completion  of  the  road 
plaintiff  brought  suit  to  enforce  his  vendor's 
lien  against  the  land.  Held,  that  it  was 
proper  to  apply  the  amount  paid  to  the 
liquidation  of  the  amount  to  be  paid  for  the 
removal  of  the  buildings,  under  the  above 
rule  for  the  application  of  payments,  and  to 
declare  a  lien  on  the  land  sold  and  on  the 
right  of  way  for  the  amount  due  thereon. 
Hempfield  R.  Co.  v.  Thornburg,  i  W.  Va. 
261. 

8.  Presumption  of  payment  from 
lapse  of  time. — A  debt  due  by  a  railway 
company  to  a  contractor,  and  secured  by  an 
indefinite  lien  on  the  road,  is  presumed  to 
have  been  paid  after  the  lapse  of  twenty 
years.  Hayes  v.  Bald  Eagle  Valley  R,  Co,, 
Fa.)  6  Atl.  Rep.  144. 


PAY  ROLL. 

Admissibility  and  efTect  of,  as  evidence,  see 
Evidence,  235. 


PECUNIARY  CONDITION. 

Of  deceased,  proof  of,  on  question  of  damages, 

see  Death  by  Wrongful  Act,  282. 

—  parties,  admissibility  of  evidence  as  to, 

see  Evidence,  08. 

—  plaintiff,  proof  of,  in  mitigation  of  dam- 

ages, see  Death  by  Wrongkul  Act,  286. 


PECUNIARY  LOSS. 

Averment  of,  in  complaint  for  causing  death, 
see  Death  by  Wrongful  Act,  131- 
1.3.3. 

To  beneficiaries  as  a  measure  of  damages 
for  causing  death,  see  Death  by  Wrong- 
ful Act,  380-.387. 

proof  of,  see  Death  by  Wrongful  Act, 

273-276. 


PENAL  LAWS. 

Enforcement    of,   by   attorney-general,   see 
Attorney-general,  4. 


PENAL  STATUTES. 
Not  enforceable  in  foreign  state,  see  Dis- 
crimination, 76. 
Strict  construction  of,  see  Statutes,  46. 


966 


PENALTY,  1,  2. 


sM 


PENALTY. 

Actions  for,  when  barred  by  lapse  of  time, 

see  Limitations  of  Actions,  iiti. 
Against  final  carrier  for  failure  to  deliver,  see 

Carriagk  of  Mekckandise,  UOl. 
In  England  for  failure  to  pay  fare  or  produce 

ticket,   see  Tickets    and   Fakes,    145, 

14». 
For  breach  of  construction    contracts,   see 

CONSTRUCIION  OF  RAILWAYS,  35, 

—  delay,  fixing,  in  contract,  see  Carriage  of 

Mr.nciiANnisE,  787. 

—  discrimination,  recovery  of,  see  Discrimi- 

NAiioN,  77-80. 

—  disobedience  of  commissioners'  orders,  see 

Railway  Commissioners,  34r. 

—  excessive  speed  in  cities,  see  Streets  and 

Highways,  .'WO,  331. 

—  failure  to  comply  with  order  of  commis- 

si oners  regarding  grade  crossings,  see 
Crossing  of  Streets  anu  Highways, 
112. 

— deliver  goods,  under  Texas  statute, 

see  Carriage  of  Merchandise,  203. 

establish  station,  see  Siations  and 

Depots,  31. 

feed  cattle  during  transit,  see  Car- 
riage of  Live  Stock,  35. 

— forward  goods  promptly,  see  Car- 
riage of  Merchandise,  40. 

keep  crossing  in  repair,  see  Cross- 
ing of  Streets  and  Highways,  35. 

obtain  license,  see  Street  Rail- 
ways, 293. 

post  time  of  arrival  of  trains,  see 

Time-tables,  5. 

—  t stop  before  crossing  another  rail* 

way,  see  Crossing  of  Railroads,  83. 

—  keeping  cattle  in  cars  more  than  twenty* 

eight  hours,  see  Carriage  of  Live  Stock, 
34. 

—  non-payment  of  taxes,  see  Taxation,  302. 

—  obstruction  of  highway,  see  Streets  and 

Highways,  425. 

—  overcharge  in  passenger  fare,  see   Tick- 

ets and  Fares,  132. 

—  overcharges,  see  Charges,  1 1,  52-58. 
on  fares,  see  Street  Railways,  307. 

—  refusal  to  issue  bill  of  lading,  see  Bills  of 

Lading,  lO. 

—  refusing  to  check  baggage,  see  Baggage, 

50. 

—  violation  of  contract  labor  law,  see  Con- 

tract Labor  Law,  2. 

internal  revenue  laws,  see  Revenue, 

9. 

Recovery  of,  in  action  for  taxes,  see  Taxa- 
tion,  322. 

Staying  proceedings  to  enforce,  see  Injunc- 
tion, 47« 


When  amount  recoverable  is  considered  a, 
see  Damages,  40. 

I.  FOB  WHAT  ACTS  OB  OMISSIONS  IH-  966 

POSED 

II,  ENFORCEMENT 967 

I.  FOB  WHAT  ACTS  OB  OMISSIONS 
IMPOSED. 

1.  In  general.*  —  If  the  statute  wliich 
provides  a  penalty  for  failure  of  a  railroad 
company  to  signal  at  a  highway  crossing 
(Mansf.  Ark.  Dig.  §  5478)  contem plates  a 
recovery  by  civil  action  only,  a  judti;ment 
for  the  recovery  of  such  penalty,  based 
upon  a  pleading  which  is  in  form  an  indict- 
ment indorsed  by  the  foreman  and  returned 
by  the  grand  jury,  is  not  open  to  collateral 
attack,  if  such  pleading  is  in  substance  a 
civil  complaint  prepared  and  signed  by  the 
prosecuting  attorney,  and  is  so  treated  by 
the  trial  court.  S/.  Louis,  I.  M.  &*  S.  R. 
Co.  V.  State,  55  Ark.  200,  17  S.  W.  Kep.  806. 

The  provision  of  Ark.  Const,  of  1868,  art, 
I,  §  4,  that  "no  person  shall  be  held  to 
answer  a  criminal  offense  unless  on  the  pre- 
sentment or  indictment  of  a  grand  jury  "  is 
inapplicable  to  an  action  to  recover  the 
penalty  imposed  on  a  railway  company  for 
failure  to  signal  at  a  highway  crossing.  St, 
Louis,  A.  &^  T.  A*.  Co,  v.  State,  56  Ar/t.  166, 
19  5.  IV.  Rep.  572. 

If  a  statute  in  the  nature  of  a  police  regu- 
lation gives  a  remedy  for  private  injuries 
resulting  from  the  violations  thereof,  and 
also  imposes  fines  and  penalties  at  the  suit 
of  the  public  for  such  violations,  the  former 
will  not  be  regarded  in  the  nature  of  a  pen- 
alty unless  so  declared.  Pittsburgh,  Ft.  IV. 
&*  C.  R.  Co,  V  Methven,  21  Ohio  St.  586, 

2.  Delay  in  transporting  goods.— 
Corporations,  like  natural  persons,  are  sub- 
ject to  the  police  power  of  a  state ;  therefore 
N.  Car.  Act  of  1874-75,  ch.  24,  §  2,  which 
fixes  a  penalty  of  $25  a  day  for  delay  of 
local  shipments  beyond  five  days  after  the 
receipt  of  the  goods,  is  constitutional. 
Branch  v.  Wilmington  &*  W,  R.  Co.,  77 
N.  Car.  347. 

In  computing  the  time  under  the  above 
statute  the  term  "  five  days"  must  be  con- 
strued to  mean  consecutive  days,  and  there- 
fore will  include  a  Sunday  which  may  inter- 
vene:  but  tTie   day   on   which   the  default 


*  Liability  of  railroad  company  to  penalties  as 
a  common  carrier,  see  note,  27  Am.  &  Eng.  R. 
Cas  70. 


tnsidered  a, 

DNS  IM-  966 

■ 967 

[SSI0N8 

atute  which 
f  a  railroad 
ay  crossing 
templates  a 
1  judj^meiit 
ally,  based 
n  an  indict- 
id  returned 
;o  collateral 
substance  a 
3[ned  by  the 

treated  by 
W.  &>  S.  R. 
V.  Kep.  806. 
of  1868,  art. 

be  held  to 
on  the  pre- 
nd  jury  "  is 
•ecover  the 
ompany  for 
ossing.  St. 
56  4rk.  166, 

police  regu- 
ate  injuries 
hereof,  and 

at  the  suit 
,  the  former 
re  of  a  pen- 
rgh,Ft.  W. 

St.  586. 
:  ((ouds.  — 
>ns,  are  sub- 
e ;  therefore 
,  §  2,  which 
or  delay  of 
ys  after  the 
istitutional. 

R.  Co.,  yy 

r  the  above 
ust  be  con- 
,  and  there- 
i  may  inter- 
the  default 


>  penalties  as 
[.  &  Eng.  R. 


PENALTY,  3-0. 


967 


occurs  is  not  counted.  Branch  v.  WilDiing- 
ton  Sr'  IV.  R.  Co.,  77  A^.  Car.  347.— Fol- 
lowed IN  Keeter  v.  Wilmington  &  W.  R. 
Co..  9  Am.  &  Eng.  R.  Cas.  165,  86  N.  Car. 

346. 

The  five  days  within  which,  under  the 
North  Carolina  statute,  a  railroad  company 
must  forward  freight  or  answer  m  damages 
are  five  full  running  days,  exclusive  of  the 
day  of  delivery  and  the  day  of  shipment. 
Branch  v.  Wilmington  <&*  W.  R.  Co.,  88 
N.  Car.  570. 

8.  Eugfiiic  not  consuming  smoke. 
— A  penalty  is  not  incurred  in  the  Railways 
Clauses  Act  1845,  §  114.  for  failing  to  con- 
struct engines  so  as  to  consume  their  own 
smoke  unless  the  engine  is  so  defectively 
constructed  as  to  be  incapable  of  consuming 
its  own  smoke,  although  used  with  proper 
care:  if  the  emission  of  smoke  is  caused 
merely  by  careless  handling,  the  penalty 
does  not  attach.  Manchester,  S.  <&*  L.  R. 
Co.  V.  Wood.  2  El.  &^  El.  344,  29  L.  J.  M. 
C.  29.  I  L.  T.  31. 

4.  Failure  to  give  notice  of  acci- 
dent.—So.  Car.  Gen.  St.  §  1525.  requires 
a  railroad  company  to  give  immediate  notice 
of  an  accident,  attended  with  injuries  to  a 
person,  to  the  railroad  commissioners,  and 
to  the  nearest  physician,  under  a  penalty. 
A  brakeman  was  seen  on  a  train  after  leav- 
ing a  station,  but  was  missed  at  the  next 
station,  but  the  other  employes  supposed  he 
was  on  the  engine.  Some  time  afterwards 
it  was  learned  that  he  v^s  not  on  the  train, 
when  the  conductor  telegraphed  inquiries 
to  the  station  where  he  was  last  seen  and  to 
headquarters,  and  inquiries  were  made  along 
the  road  on  the  return  trip.  Some  days 
afterwards  his  body  was  found  at  the  side  of 
the  road,  and  the  circumstances  tended  to 
show  that  he  had  fallen  off  and  received 
some  injuries,  but  had  frozen  to  death. 
Held,  that  even  if  the  above  statute  would 
apply  the  company  was  not  guilty  of  negli- 
gence, so  as  to  make  it  liable,  for  failing  to 
institute  a  search  along  the  track.  Adkins 
v.  Atlanta  <S-  C.  A.  L.  R.  Co.,  31  Am.  6f* 
Eng.  R.  Cas.  281,  27  So.  Car.  71,  2  S.  £• 
Rep.  849- 

5.  Failure  to  stop  on  signal.  —  A 
railway  company  sold  a  passenger  a  ticket 
from  a  regular  station  to  a  flag  station  and 
return,  on  which  the  passenger  was  carried 
*o  the  flag  station,  and  on  the  return  of  the 

rain  no  stop  was  made  at  the  flag  station, 
where  the  passenger  was  waiting  for  the 


return  trip,  and  claimed  to  have  given  the 
customary  signal.  Held,  that  the  company 
was  liable  to  the  penalty  imposec!  by  How. 
Mich.  St.  §  3324,  if  the  trainmen  saw  the 
signal  and  wilfully  ran  by  the  station.  Free' 
man  v.  Detroit,  M.  <&*  M.  R.  Co. ,  30  Am.  &* 
En^.  R.  Cas.  623,  65  Mich.  577,  9  West. 
Rep.  1 17,  32  N.  W.  Rep.  833. 

O.  Overcliarges  in  freights  and 
fares.— -The  legislature  has  the  right  to  fix 
a  money  penalty  upon  a  railroad  company 
for  charging  more  than  the  fixed  maximum 
rates  of  toll  for  carriage  of  freight  and  pas- 
sengers. State  V.  Winona  &*  St.  P.  R.  Co., 
19  Minn.  434  (Gil.  377). 

If  a  railroad  charges  and  receives  for 
transporting  a  car-lo<id  of  merchandise  to  a 
station  on  its  road  where  it  delivers  the 
goods,  and  they  are  accepted  by  the  con- 
signee, more  than  it  charges  for  transporting 
the  same  a  greater  distance,  it  is  liable  to 
the  penalty  imposed  by  N.  H.  Laws  of  1859, 
ch.  55,  although  by  the  original  contract 
the  merchandise  was  to  be  transported  to  a 
more  distant  station.  Osgood  v.  Concord 
R.  Co.,  21  Am.  &•  Eng.  R.  Cas.  44,  63  N. 
H.  255.  -  Reviewing  Com.  v.  Worcester 
&  N.  R.  Co.,  124  Mass.  561. 

By  implication  Tex.  Rev.  St.  art.  4258, 
providing  for  a  penalty  of  $500  for  an  over- 
charge in  a  passenger  fare,  is  repealed  by 
the  act  of  April  lo,  1883.  Etter  v,  ^Missouri 
Pac.  R.  Co.,  2  Tex.  App.  (Civ.  Cas.)  48. 

7.  Refusal  to  receive  goods  for  car- 
riage.— Where  a  company  refuses  to  reciiive 
freight  tendered  for  transportation,  an  ac- 
tion for  the  penalty  of  fifty  dollars,  as  pro- 
vided by  the  act  of  1879,  ch.  182,  may  be 
brought.  Branch  v.  Wilmington  &"' W.  R. 
Co.,  88  N.  Car.  570. 

8.  Stacking  liay  or  straw  near  right 
of  way.— Mo.  Rev.  St.  1889,  §  26:4,  pre- 
scribes a  penalty  of  not  exceeding  $500  for 
stacking  or  ricking  grain,  hay,  or  straw  with- 
in one  hundred  yards  of  the  right  of  way  of 
a  railroad.  Reed  v.  Missouri  Pac.  R.  Co., 
50  Mo.  App.  504. 

II.  ENFORCEMENT. 

9.  Jurisdiction— Nature  of  action. 

— An  action  for  the  enforcement  of  a  pen- 
alty for  overcharging  upon  fares  can  only 
be  brought  in  the  forum  prescribed  by  stat- 
ute.    Reed  v.  Omnibus  R.  Co.,  33  Cal.  212. 

Qui  tarn  actions  for  a  penalty  may  be  pros- 
ecuted civilly  or  criminally  by  information, 


968 


PENALTY,  10-12. 


5   1674.     State  ex  rel. 
R.  Co.,  30  Mo.  App. 


\»> 


under  Mo.  Rev.  St.  | 
V.  Hannibal  <&>•  Si.  J. 

494- 

An  action  for  a  penalty,  fjiven  by  statute 
to  any  person  injured,  is  an  action  on  con- 
tract. Doughty  V.  Atlantic  &*  N.  C.  A'.  Co., 
78  A'.  Car.  22. 

10.  Bight  of  action.— The  right  of  a 
passenger  to  enforce  a  penalty  against  a 
railnxid  for  overcharge  upon  a  fare  being 
purely  of  statutory  creation,  no  other  proc- 
ess of  procedure  for  its  enforcement  can 
be  pursued  than  that  prescribed  by  the 
statute.  AW(i  v.  Omnibus  R.  Co.,  33  Cal. 
212. 

Parties  equally  at  fault  can  have  no  rem- 
edy against  each  other  based  upon  a  con- 
tract or  transaction  which  is  unlawful.  So 
where  a  station  agent  makes  an  overcharge 
on  freights  and  pays  the  same  over  to  the 
company,  he  cannot  maintain  an  action 
against  the  company  to  recover  a  penalty 
provided  by  statute  for  making  such  over- 
charge. Steever  v.  Illinois  C.  R.  Co.,  16 
Ami.  <S^  £^"^-  ^^-  Cas.  53,  62  Iowa  371,  17 
A^.  W.  Rep.  595. 

The  rule  that  a  carrier  who  receives  goods 
from  another  and  pays  the  charges  that  have 
then  accrued  can  only  claim  to  be  reimbursed 
for  the  just  and  reasonable  charges  which 
were  due  for  the  carriage  applies  only  in  an 
action  for  damages  for  detaining  the  goods 
or  for  recovery  of  an  overcharge,  and  does 
rot  apply  when  a  penalty  is  sought  to  be  re- 
covered. Gulf,  C.  &^  S.  F.  R.  Co.  V.  Dwyer, 
S4  Tex.  194,  19  S.  IV.  Rep.  470.  —  Fol- 
lowed IN  Schloss  V.  Atchison,  T.  &  S.  F. 
R.  Co.,  85  Tex.  601. 

The  rule  which  inhibits  the  legislature 
f)  ">r-  in'fcrfering  with  vested  rights  means 
^'.ich  rif^hts  as  sprinj^  from  contracts  or 
ir(.  '.  '  ■■f  principles  of  the  common  law,  and 
o."s  ;,  ennbrace  rights  growing  out  of  a 
,:k'  ^'-  c'ctions  for  a  penalty  in  their  nature 
T  •  •/  '  So  an  action  commenced  under 
Tex.  Kcv  St.  art.  4258  to  recover  a  penalty 
for  an  overcharge  in  a  passenger  fare  does 
not  give  the  plaintiff  a  vested  right  so  as  to 
prevent  the  legislature  from  repealina;  the 
section  and  taking  away  the  remedy,  as  was 
done  by  the  act  of  April  10,  1883.  Etter  v. 
Missouri  Pac.  R.  Co.,  2  Tex.  App.  {Civ.  Cas.) 
48.— Followed  in  Gulf,  C.  &  S.  F.  R.  Co. 
7'.  Lott,  2  Tex.  App.  (Civ.  Cas.)  51. 

11.  Proper  party  pini  11  tiflf.— Where 
an  action  to  recover  from  a  railroad  company 
the  penalty  for  failure  to  give  a  signal  licfore 


crossing  a  highway  is  prosecuted  by  the  in 
former  in  his  own  name,  the  error  in  not 
bringing  the  suit  in  the  name  of  the  state 
cannot  be  cured  by  an  amendment  substi- 
tuting the  state  as  plaintiff.  St.  Louis,  A. 
6^  T.  R.  Co.  V.  State,  56  Ark.  166,  19  S.  IV. 
Rep.  572. 

An  action  to  recover  of  a  railroad  com- 
pany the  penalty  provided  for  by  Mo.  Rev. 
St.  §  806,  where  a  bell  or  whistle  is  not 
sounded  at  a  street  crossing,  need  not  be 
brought  in  the  name  of  the  prosecuting  at- 
torney to  the  use  of  the  county  and  the  in- 
former, but  is  properly  brought  in  the  name 
of  the  state  to  the  use  of  the  county.  State 
ex  rel.  v.  Wabash,  St.  L.  &»  P.  R.  Co.,  89 
Mo.  562,  I  S.  IV.  Rep.  130.— Followed  in 
State  ex  rel.  v.  Hannibal  &  St.  J.  R.  Co.,  89 
Mo.  571. 

The  person  claiming  the  penalty,  and  not 
the  state,  is  the  proper  party  plaintiff  in  an 
action  for  the  penalty  imposed  on  railroads 
by  N.  Car.  Code.  §  1967.  Middleton  v. 
Wilmington  &•  W.  R.  Co.,  95  N.  Car.  167. 
— Following  Norman  v.  Dunbar,  8  Jones 
319.  Not  following  Duncan  v.  Philpot, 
64  N.  Car.  479. 

So.  Car.  Gen.  St.  §  1457  empowers  the 
railroad  commissioners  to  make  suggestions 
to  any  railroad  compaiiv  regarding  repairs 
or  im|)rovements  in  the  road  or  station 
houses,  but  prescribes  no  penalty,  and  no 
mode  of  enforcement,  except  through  the 
attorney-general ;  therefore  the  commis- 
sioners themselves  have  no  right  of  action 
to  recover  the  penalty  provided  in  §  1539. 
Railroad  Com'rs  v.  Columbia  &*  G.  R.  Co., 
30  Am.  6r^  I'-ng-  R-  Cas.  177,  26  So.  Car. 
353,  2  5.  /i.  Rep.  127.— Applied  in  Ross  7/. 
Georgia.  C.  &  N.  R.  Co.,  46  Am.  &  Eng.  R. 
Cas.  34.  33  So.  Car.  477. 

By  Tex.  Act  of  April  8,  1889,  amending 
Rev.  St.  art.  4238,  imposing  certain  forfeit- 
ures, it  is  provided  that  "  it  shall  be  the 
duty  of  the  attorney-general,  or  the  district 
or  county  attorney  of  the  district  or  county 
in  which  said  crossing  or  depot  is  situated, 
to  sue,  prosecute  for,  and  recover  the  same." 
When  a  duty  is  thus  imposed  upon  an  offi- 
cer, it  cannot  be  s.iid  that  it  was  not  the 
intention  of  the  legislature  that  he  should 
have  the  power  to  perform  it.  San  Antonio 
&•  A.  P.  R.  Co.  V.  State,  45  Am.  &^  ling. 
R.  Cas.  586,  79  Tex.  264,  14  5.  W.  Rep. 
1063.  • 

12.  Ploiuliiipf.-  Penal  statutes  must  be 
stric'.ly  construed,  and  to  recover  a  penalty 


'.iTW''^ 


PENALTY,  13-15. 


969 


a  plaintifT  must  always  make  a  plain  case 
and  bring  his  claim  within  the  very  letter 
of  the  statute.  Pa/m  v.  New  York,  A\  H. 
6-  H.  li.  Co.,  28  /.  &•  S.  162.  42  A^.  Y.  S. 
K.  219, 17  A'.  Y.  Supp.  471.  Wray  v.  Penn- 
sylvania A'.  C<;.,  19  A^.  Y.  S.  A\  53,  4  JV.  Y. 
Supp.  354.  S/ate  V.  Androscoggin  A'.  Co., 
20  Am.  (So  Ensf-  A'.  Cas.  624,  76  A/e.  411. 

In  an  action  for  failure  to  give  the  statu- 
tory signals,  It  is  not  necessary  to  set  forth 
in  the  declaration  tlie  hour  of  the  day  or 
night  in  which  the  train  passed  the  crossing, 
or  to  state  the  nature  of  the  train  and  the 
direction  in  which  it  was  running.  Ohio&* 
M.  R.  Co.  V.  People,  \^Ill.  A  pp.  225. 

In  an  action  under  Mo.  Rev.  St.  1879, 
§810,  as  amended,  the  petition  is  not  de- 
murrable because  the  plaintiff  sues  for  the 
penalty  therein  provided  for  for  himself, 
and  not  as  a  common  informer,  as  it  is  the 
intention  of  the  legislature  to  give  the  pen- 
alty to  the  person  whose  property  has  been 
injured.  Scott  v.  Missouri  Pac.  K.  Co.,  38 
Mo.  App.  523. 

In  a  suit  against  a  railroad  company  to 
recover  several  penalties  for  running  loco- 
motives in  violation  of  the  statute,  the  first 
count  set  forth  the  statutes  under  which 
the  penalties  were  claimed,  and  in  tlie  other 
counts  the  statutes  were  only  referred  to  in 
the  introductory  part  of  each  count  by 
averring  that  defendant,  not  regarding  said 
statutes  nor  fearing  the  penalties  therein 
contained,  at  a  certain  time  did  run  its 
locomotive  engines  across  certain  highways 
without  stopping,  and  without  causing  the 
bell  on  the  engine  to  be  rung  or  the  whistle 
to  be  blown.  Held,  that  all  the  counts  ex- 
cept the  first  one  were  insufficient.  Craw- 
ford v.  New  Jersey  H.  6-  T.  Co.,  28  N./.  L. 

479- 

lit.  Defenses— Contributory  negli- 
gence. —  Wiiere  the  action  is  against  a 
company  to  recover  a  statutory  penalty  for 
failure  to  give  signals  at  a  highway  crossing, 
it  is  immaterial  whether  the  party  injured, 
and  for  whose  use  the  action  is  brought, 
was  guilty  of  contributory  iieijligence.  Mo- 
bile &^  O.  A'.  Co.  V.  People  ex  r el.,  i\Ill.  App. 
250;  rciwrsed  on  other  grounds  in  130  ///. 
146,  22  N.  E.  Rep.  850. 

In  ail  action  by  a  private  person  to  recover 
damages  for  the  violation  of  a  duty  imposed 
upon  defendant  by  statute,  it  is  a  competent 
and  sufiicient  defense  to  show  (unless  pre- 
cluded from  so  doing  by  the  terms  of  the 
Statute  or  by  clear  implication  arising  there- 


from) that  plaintiff  by  his  own  negligence 
contributed  to  the  injuries  complained  of; 
and  it  matters  not,  as  to  such  defense, 
whether  the  contributory  negligence  of 
plaintiff  arose  from  the  violation  on  his  part 
of  a  duty  imposed  upon  him  by  a  statute  or 
a  common  law  duty.  Pittsburgh,  Ft.  W.  6- 
C.  R.  Co.  V.  Methven,  21  Ohio  St.  586. 

Tennessee  statute  subjecting  railroads  to 
a  penalty  for  failing  to  call  out  a  station  at 
which  the  train  stops  is  for  the  benefit  of 
passengers,  and  does  not  include  those  who 
travel  solely  for  the  purpose  of  speculation 
or  profit  to  be  derived  from  playing  the  part 
of  spies,  and  a  party  suing  for  such  penalty 
should  show  that  he  was  or  intended  to  be 
such  passenger,  and  was  not  traveling  fot 
the  disreputable  purpose  indicated.  Parks 
V.  Nashville,  C.  &•  St.  L.  R.  Co.,  18  Am.  «S- 
Eng.  R,  Cas,  404,  13  Lea  (Tenn.)  i,  49  Am. 
Rep.  655. 

In  a  suit  by  the  state  against  a  railway 
company  to  recover  a  penalty,  under  Tex. 
Rev.  St.  art.  4250,  for  failing  to  make  an 
annual  report  to  the  comptroller  of  public 
accounts,  as  required  by  article  4249,  the  fact 
that  the  state  has  shown  no  special  damage 
resulting  from  the  failure  of  the  company 
to  make  its  report  affords  no  defense  to  the 
action.  Houston  &>  T.  C.  R,  Co.  v.  State, 
61  Tex.  342. 

14.  Evidence.— Ark.  Act  of  March  24, 
1S87,  prescribes  a  penalty  for  violation  of 
either  of  several  of  its  provisions,  and  a 
right  to  recover  the  penalty  is  shown  by 
proof  that  any  one  of  such  provisions  has 
been  violated,  as  by  a  failure  to  unload 
freight.  Little  Rock  &•  Ft.  S.  R.  Co.  v. 
Bruce,  55  Ark.  65,  17  S.  IV.  Rep.  363. 

In  an  action  against  a  carrier  to  recover  a 
penalty  for  an  unreasonable  charge  of  eight 
cents  per  100  pounds  for  carrying  brick 
between  certain  points,  the  jury  may  con- 
sider the  fact  that  the  charge  for  carrying 
stone  between  the  same  points  is  four  and 
one  half  cents  per  100  pounds.  Little  Rock 
(S-  Ft.  S.  R.  Co.  v.  Bruce,  55  Ark.  65,  17  5. 
IV.  Rep.  363. 

15.  Amount  recoverable,  and  who 
entitled  tliereto.— A  judgment  in  favor 
of  a  county  for  the  recovery  of  a  statutory 
penalty  is  not  void,  although  it  should  have 
been  rendered  in  favor  of  the  state  or  of  an 
informer.  St.  Louis,  /.  M.  iS>»  5.  R.  Co.  v. 
State,  55  Ark.  200,  175.   W.  Rep.  806. 

The  penalty  against  a  railroad  company 
for  failure  to  forward  freight  imposed  byN. 


970 


PENALTY,  10— PENNSYLVANIA. 


Car.  Laws  1874-75,  ch.  240,  is  not  <;ivcn  to 
the  county  sclii^ol  fund  by  N.  Car.  Const. 
art.  9,  §  5.  KatzcnUein  v.  Raleigh  &•  G,  R. 
Co.,  6  Am.  <&-  linir.  R.  Cas.  464,  84  N.  Car, 
688.— Doubted  in  State  ex  rel.  v.  Marietta 
&  N.G.  R.  Co.,  108  N.  Car.  24. 

Under  Tenn.  Act  of  1865,  ch.  15,  .which 
makes  a  railroad  company  liable  to  a  pen- 
alty of  Sioo  upon  a  failure,  during  any  one 
trip  of  passenj^jer-cars,  to  announce  the  stop- 
ping place  or  station  at  which  the  train 
stops,  only  one  penalty  can  be  recovered  up 
to  tiic  bringing  of  suit.  Parks  v.  Nashville, 
C.  6-  St.  L.  R.  Co.,  18  Am.  <S-  Eng.  R.  Cas. 
404,  13  Lea  (_Tenn.)  1,  49//;;/.  Rt'p.  655. — 
Quoting  Fishery.  New  York  C.  &  H.  R.  R. 
Co.,  46  N.  Y.  644.— Not  followed  in  State 
ex  rel.  v.  Kansas  City,  Ft.  S.  &  G.  R.  Co., 
32  Fed.  Rep.  722. 

10.  Rights  of  informer.— If  the  pro- 
vision in.  the  statute  (Mansf.  Ark.  Dig. 
§  5478)  that  one  half  of  the  penalty  for  fail- 
ure to  signal  should  go  to  the  informer 
and  the  other  half  to  the  county  conflicts 
with  the  constitution  in  force  at  the  date  of 
its  passage,  that  all  penalties  should  go  to 
the  school  fund,  the  remainder  of  the  act  is 
capable  by  its  own  terms  of  being  carried 
into  effect  consistently  with  the  intent  of 
the  legislature.  Si.  Louis,  L  A/.  &*  S.  R. 
Co.  V.  Siate,  55  Ar/c.  200.  175.  JV.  Rep.  806. 
—Followed  in  St.  Louis.'A.  &  T.  R.  Co.w. 
State,  56  Ark.  166. 

Mo.  Rev.  St.  §  806,  which  gives  one  half 
of  the  penalty  therein  named  to  the  informer, 
is  not  for  that  reason  violative  of  the  Const, 
art.  n,  §  8,  which  provides  that  "  the  clear 
proceeds  of  all  penalties  and  forfeitures,  and 
of  all  fines  collected  in  theseve;al  counties, 
*  *  *  shall  belong  to  and  be  securely  in- 
vested, and  sacredly  preserved  in  the  several 
counties,  as  a  county  public-school  fund." 
Stale  ex  rel.  v.  Wabash,  St.  L.  &*  P.  R.  Co., 
89  Mo.  562,  I  S.  W.  Rep.  130. 


PENDENCY. 

Of  another  action  as  ground  of  abatement, 
see  Abatement,  2. 

—  appeal     in    condemnation     proceedings, 

effect  of,   see    Eminent  Domain,  Oo4, 
«55. 

—  writ  of  error,  effect  of,  see  Eminent  Do- 

main, 906. 

from    United    States    supreme 

ccurt  to  state  court,  effect  of,  sec  Fed- 
eral Co f IMS,  ii7. 


PENDING  SUITS. 

Effect  of  discharge  of  receiver  upon,   see 

Receivers,  178. 
dissolution  upon,  see  Dissolution,  etc, 

2J). 
receiver's  appointment  upon,  see  Re- 

CEIVEK.S,    1  84. 

sale  on,  see  Receivers,  1 15. 

For  damages  do  not  bar  condemnation  of 
abutting  easements,  see  Elevated  Rail- 
ways, 38. 


PENNSYLVANIA. 

Aid  to  railways  by  the  state,  see  State  Aid, 
29. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion, 280. 

Civil  rights  acts  of,  see  Colored  Persons,  4. 

Conditions  exempting  carrier  from  liability 
to  person  riding  on  free  pass  in,  see 
Passes,  32. 

Constitutionality  of  statutes  of,  as  to  munic- 
ipal aid  for  railways,  see  Municipal  and 
Local  Aid,  47. 

relative  to  condemnation  of  land, 

see  Eminent  Domain,  42. 

tax  laws  of,  see  Taxation,  44. 

Constitutional  provisions  in,  relative  to  con- 
demnation of  land,  see  Eminent  Domain, 
19. 

Crossing  of  streets  and  highways  under  stat- 
utes of,  see  Crossing  ok  Streets  and 
Highways,  O. 

Deductions  for  benefits  under  condemnation 
laws  of,  see  Eminent  Domain,  751. 

Doctrine  of  comparative  negligence  denied 
in,  see  CoMi'ARA'iivE  Neoligence,  31. 

Grade  crossings  under  constitution  and  stat- 
utes of,  see  Crossing  of  Railroads,  03- 
65. 

Injuries  to  animals  running  at  large  in,  see 
Animals,  Injuries  to,  275. 

Liability  of  company  to  laborers  employed  by 
contractors  in,  see  Construction  of  Rail- 
ways, 94. 

Local  assessment  upon  steam  railways  in, 
for  repairs,  paving,  etc.,  see  Streets  and 
Highways,  355. 

Occupation  of  streets  by  steam  roads  under 
legislative  grants  of,  see  Streets  and 
Highways,  54. 

Operation  of  statute  of,  giving  right  of  action 
for  causing  death,  see  Death  by  Wrong- 
ful Act,  29. 

Power  to  construct  branch  roads  under 
statutes  of,  see  Branch  and  Lateral 
Roads,  4. 

Review  of  town  bonding  proceedings  by 
mandamus  in,  see  Municipal  and  Local 
Aid,  452. 


upon,   see 

niON,  ETC., 

n,  see   Re- 

15. 

nnation  of 

kTKI)    RAII- 


sTATL  Aid, 

see  Taxa- 

•ersons,  4-. 
m  liability 
iss  in,   see 

s  to  munic- 

IICIPAL  AND 

ion  of  land, 

k4. 

ive  to  con- 

)T  Domain, 

under  stat- 

REETS    AND 

idemnation 
751. 
nee  denied 

ICE,  iil. 

>n  and  stat- 

SOADS,  OU- 

irge  in,  see 

mployed  by 

f)N  OF  Rail- 

ailways  in, 

rREETS  AND 

■oads  under 

PREETS    AND 

ht  of  action 

BY  WrONG- 

>ads   under 
D    Lateral 

iedings    by 

and  Local 


PENSION— PERISHABLE  GOODS. 


971 


Right  to  sue  in,  for  causing  death  in  foreign 
state,  see  Death  by  Wrongful  Act, 
122. 

Rule  as  to  imputed  negligence  in,  see  Im- 
puted Necligence,  21. 

—  in.  requiring  traveler  at  crossing  to  stop, 

as  well  as  to  look  and  listen,  see  Cross- 
ings, Injuries,  etc.,  at,  2i{2. 

Statutes  of,  authorizing  leases  of  roads,  see 
Leases,  etc.,  {15. 

regulating  liability  to  servant  for  in- 
juries caused  by  negligence  of  fellow- 
servants,  see  Fei.low-servants,  lil3. 

relative  to  condemning  right  of  way 

through  streets,  see  Streets  and  High- 
ways, 119. 

connecting  lines,  see  Connecting 

Lines,  2. 

— —  intersection    of    railways,    see 

Crossing  of  Railroads,  14. 

Statutory  provisions  in,  limiting  amount  re- 
coverable for  causing  death,  see  Death 
BY  Wrongful  Act,  371. 

—  regulation  of  grade  crossings  in,  see  Cross- 

ing OF  Streets  and  Highways,  02. 

Taking  land  for  streets  and  laying  out  roada 
in,  see  Streets  and  Highways,  28. 

Taxation  in  aid  of  railways  in,  see  Munici- 
pal and  Loc.\lA!d,  424. 

—  of  gross  receipts  under  statute  of,  see  In- 

terstate Commerce,  197. 


PENSION. 

Proof  of  widow's  right  to,  in  mitigation  of 
damages,  see  Death  by  Wrongful  Act, 
287. 


PERCOLATION. 

Of  surface  water,  interference  with,  see  Wa- 
ters and  Watercourses,  29. 


PEREMPTORY  CHALLENGES. 
To  jurors,  see  Trial,  34. 
impaneled  to  assess  land  damages,  see 

Eminent  Domain,  543. 


PERFORMANCE. 

Averment  of.  on  plaintiff's  part,  see  Plead- 
ing, 19. 

By  company  of  conditions  in  subscription, 
seeSuBSCRU'TKJNS  to  Stock,  193-195. 

—  complainant,  necessity  and  sufficiency  of, 

see  Specific  Performance,  7,  8. 
Of  condition,  effect  of  impossibility,  see  Sub- 
scKiiTioNS  TO  Stock,  203. 

—  conditions  in  deeds,  necessity  and  suffi- 

ciency of,  see  Deeds,  32-34. 

grant  of  right  of  way,  see  Eminent 

Domain.  214,  215. 


Of  conditions  on  plaintiff's  part,  proof  of, 
see  SuBscRii'iiiiNs  to  Stock,  105. 

—  contract,  competency  of  evidence  of,  see 

Evidence,  24. 
to  locate  station,  see  Stations  and  De- 
pots, 41-43. 

—  contracts  gen  :rally,  see  Contracts,  08- 

77. 
for  railway  construction,  see  Construc- 
tion of  Railways,  27-35. 

—  duty  to  fence,  effect  of,  see  Animals,  Inju- 

ries to,  114-121. 

On  plaintiff's  part,  allegation  of,  see  Subscrip- 
tions TO  Stock,  93. 

Necessity  of,  to  constitute  accord,  see  Ac- 
cord and  Satisfaction,  3. 


PERIL. 

Assuming  a  position  of,  when  contributory 
negligence,  see  Employes,  Injuries  to, 
313-3.34. 

Choosing  between  several  courses  of  action 
in  moments  of,  sec  Contributory  Negli- 
gence, 41-44. 

two  dangers,  see  Carriage  of  Passen- 
gers, 398. 

Conduct  of  passenger  in  cases  of  sudden,  see 
Carriage  of  Passengers,  344-34G. 

moments    of,  see  Carriage    of 

Passengers,  435-440. 

Consideration  of,  in  estimating  damages,  see 
Carriage  of  Passengers,  020. 

Contributory  negligence  in  moments  of  sud- 
den, see  Street  Railways,  385. 

Error  of  judgment  in  moment  of,  see  Elec- 
tric Railways,  31. 

—  —   —   —   —    —    great,   see   Death  by 

Wrongful  Act,  1 70. 

Measure  of  damages  for  exposure  to,  see 
Damages,  72. 


PERILS  OF  THE  SEA. 

Exception  of,  in  bills  of  lading,  see  Bills  of 

Lading,  102. 
When  excuse  loss  by  carrier,  see  Carriage 

of  Merchandise,  29. 


PERISHABLE  GOODS. 

Carrier  must  give  preference  to,  see  Car- 
riage of  Merchandise,  39,  45. 

How  far  common  law  liability  applies  to  loss 
of,  see  Carriage  of  Merchandise,  20. 

Liability  of  final  carrier  as  to,  see  Carriage 
OF  Mekchandise,  049. 

Limitation  of  liability  as  respects,  see  Car- 
riage OF  Mekchandise,  440. 

Negligence  of  shipper,  when  excuses  carrier 
for  loss  of,  see  Carriage  of  Merchandise, 
187. 


m 


972 


PERMANENCY— PliRSONAT.   INJURIES. 


KS$::pr 


.        i: 


Strikes,  when  excuse  delay  in  forwarding, 
see  Stkikk.s,  ii. 

When  carrier  may  sell,  see  Carriage  of 
Mekciiandisk,  1<(2,  tiUi. 

—  higher  rate  on,  is  justifiable,  see  Inter- 
state Commerce,  88. 


PERMANENCT. 
Of  injuries,  opinions  of  physicians  as  to,  see 

VVllNESSES,    107. 

—  injury,  evidence  as  to,  under  the  pleadings, 
see  Pleading,  1 14. 


PERMANENT  INJURIES. 

Allegation  of  permanency,  see  Damages,  79. 
Excessive  damages    for,    see    Ejection    of 

Passengers,    ItiO;   Employ£s,    Injuries 

TO,  7«0. 
Measure  of  damages  for,  see  Damages,  08. 
Prospective  damages  for,  see  Damages,  41- 

45. 


PERPETUITY. 

Of  interest  acquired  by  condemnation  pro- 
ceedings, see  Eminent  Domain,  132. 


PERSON. 

Action  for  trespass  upon  the,  see  Trespass, 

28-;J0. 
Compulsory  examination  of,  see    Physical 

Examination, 


PERSONAL  DELIVERY. 

Of  goods  carried,  see  Carriage  of  Merchan- 
dise, 25G. 


PERSONAL  INJURIES. 
Actions  against  receivers  for,  see  Receivers, 
142. 

—  for,  when  barred  by  lapse  of  time,  see 

Limitations  of  Actions,  OO. 
Application  of  doctrine  of  ultra  vires  to  cases 

of,  see  Ultra  Vires,  28. 
At  cattle-guards,   liability  for,  see  Cattle- 

r.r Auns,  2JJ. 

—  crossing,  see  Crossings,  Injuries,  etc.,  at. 

—  excavations,    liability    for,   see    Excava- 

tions, JJ. 

—  or  near  bridges,  see   Bridges,  etc.,  50- 

58. 

—  railway  intersections,    liability    for,    see 

Crossing  of  Railroads,  70. 

Burden  of  proof  under  the  pleadings  in  ac- 
tions for,  see  Pleading,  121. 

By  blasting,  see  Blasting,  2. 

—  receivers,    liability  of   company  for,  see 

Receivers,  181. 


Caused  by  independent  contractor,  liability 
for,  see  Independent  Contractors,  25- 
27. 

negligence  at  station,  see  "(Tationsand 

Depots,  58-145. 

servants  of  railway,  contractor,  liabil- 
ity for,  see  Construction  of  Railways, 
47. 

Claims  for,  when  prior  to  mortgage,  see 
Mortgages,  DO. 

Construction  of  statutes  relative  to  liability 
for,  see  Statutes,  59. 

Costs  in  actions  for,  see  Costs,  1 2. 

Evidence  under  the  pleadings  in  actions  for, 
see  Pleading,  110. 

Excessive  damages  for,  see  New  Trial,  28- 
81. 

From  fires,  liability  for,  see  Fires,  99. 

—  insufficiency  of  culverts,  liability  for,  see 

Culverts,  18-20. 

Instructions  in  actions  for,  generally,  see 
Trial,  12.'?-129,  148-155. 

Liability  of  elevated  railway  for,  see  Ele- 
vated Railways,  199-222. 

lessee  road  for,  see   Leases,  etc.,  61, 

02. 

lessor  for,  see  Leases,  etc.,  42-44. 

mine  owner  for,  see  Mines,  etc.,  11. 

president  for,  see  President,  12. 

private  railroads  for,  see  Private  Rail- 
roads, 3. 

receiver  for,  see  Receivers,  71. 

—  —  street-car  company  for,  see  Street 
Railways,  .'{13-531. 

—  to  passenger?  for,  sec  Sleeping,  etc..  Com- 

panies, 15-23. 
Measure  of  damages  for,  see  Damages,  07. 
Nonsuit  in  cases  of,  see  Trial,  00,07,  70. 
Occasioned  by  construction  of  road,  liability 

for,  see  Construction  of  Railways,  13. 
Opinion  of  physician  as  to  cause,  extent,  and 

permanency    of,    see    Witnesses,    104- 

168. 
Payment  of  claims  for,  by  receivers,  see  Re- 
ceivers, 82. 
Priority  of  mortgage  over  claims  for,   see 

Mortgages,  113. 
Proper  venue  in  actions  for,  see  Trial,  1 1. 
Prospective    damages  for     permanent,  see 

Damages,  41. 
Questions  of  fact  in  actions  for,  see  Trial, 

108-112. 
Statement  of  cause  of  action  in  actions  for, 

see  Pleading,  24-27. 
Suits  in  equity  to  recover  damages  for.  see 

Equity.  24. 
To  child,  effect  of  contributory  negligence  to 

bar  recovery  for,  see  Children,  Injuries 

TO,  79-93. 

—  drovers  riding  on  cattle  train,  see  Car- 

riage of  Live  Stock,  125-133. 


PERSONAL   LIABILITY— PETITION. 


973 


To  employes,  damagfes  for  <ee  EMrLOY^.s,  In- 
juries TO,  703-784. 

—  owner  of  private  cars,  right  of  to  recover 

for,  see  Pkivatk  Caks,  1. 

—  person  riding  on  free  pass,  liability  for, 

see  Passes,  1  1  - 1  U. 

—  wife,  action  for,  see  Husband  and  Wife, 

15-41. 

—  —  release  by  husband  of  claim  for,  see 

Husband  and  Wife,  4. 

Variance  between  pleading  and  proof  in  ac- 
tions for,  see  Pleading,  l.'{7. 

When  limitation  begins  to  run  in  actions  for, 
see  Limitations  uf  Actions,  25. 


PERSONAL  LIABILITT. 

For  stock  subscribed,  see  Subscriptions  to 

Stock,  37-39. 
Of  corporate  officers,  see  Officers,  5. 
—  receivers,  see  Receivers,  74. 


PERSONAL  NOTICE. 

Of  assessment  on  subscriptions  to  stock,  see 

Subscriptions  to  Stock,  <M). 
—  condemnation  proceedings,  see  Eminent 

Domain,  205. 


PERSONAL    PROPERTY. 

Elevators,  when  deemed  to  be,  see  Eleva- 
tors, 4. 

Excessive  damages  for  injuries  to,  see  New 
Trial,  .38. 

Rolling  stock  is,  see  Mortgages,  47,  48. 

Shares  of  stock  are,  see  Stock,  2. 

Trespass  upon,  see  Trespass,  21-27. 

What  subject  to  execution,  see  Execution, 
2. 

When  exempt  from  taxation,  see  Taxation, 
173-180. 


PERSONAL  REPRESENTATIVE. 

Damages  to  widow  suing  as,  for  loss  of  hus- 
band, see  Death  by  Wrongful  Act,  3i>8. 

Extent  of  recovery  by,  in  action  for  causing 
death,  see  Death  by  Wrongful  Act, 
378. 

Instructions  as  to  damages  in  suits  by,  see 
Death  by  Wrongful  Act,  340. 

—  recpverable  in  actions  by,   see 

Death  by  Wrongful  Act,  320. 

Nominal  damages,  when  the  measure  of  re- 
covery by,  see  Death  by  Wrongful  Act, 
420. 

Power  of,  to  transfer  stock,  see  Stock,  .32. 

Right  of,  to  appeal  in  condemnation  proceed- 
ings, see  Eminent  Domain,  875. 

When  entitled  to  land  damages,  see  Eminent 
Domain,  428. 


When  limitation  begins  to  run  in  actions  by 
or  against,  !>ee  LiMiiATioN.i  of  Actions, 
32. 

may  sue  elevated  railway,  see  Elevated 
Railways,  82-84. 
—  proper  parties,  see  Paktiis  to  Actions,  4. 
See  also  Executors  and  Administrators. 


PERSONAL  SERVICE. 

Specific   performance    of   contract    for, 
Si'KciFic  Perfokmanck,  11). 


see 


PETITION 

Estimating  land  damages  from  time  of  filing, 

see  Eminent  Domain,  400. 
For  condemnation,  allegation  of  inability  to 

agree  with  landowner  in,   st-e  Eminent 

Domain,  277. 

—  expropriation  under  Canadian  statutes, 

see  Emineni  Domain,  121K 

—  mandamus,  see  Mandamus,  20. 

Form  and  sufficiency  of,  generally,  see  Plead- 
ing, 7-;i8. 

For  removal  of  cause,  see  Removal  of 
Causes,  40-52. 

In  actions  against  carrier  of  cattle,  see  Car- 
riage OF  Live  Siock,  130. 

carriers  of  passengers,  see  Car- 
riage of  Passengers,  537-552. 

—  —  at  law  by  abutter  for  injury  sustained 
by  railway  in  street,  see  Streets  and 
Highways,  230. 

before  justice  of  the  peace,  see  Justice 

of  the  Peace,  7. 

for  flowing  land,  see  Flo--    -ng  Lands, 

70. 

injuries  to  children,  s       .hildren. 

Injuries  to,  158. 

employes,  sec  Employes,  In- 
juries TO,  503-543. 

overcharge  in  passenger  fare,  see 

Tickets  AND  Fares,  131. 

taxes,  see  Taxation,  316. 

trespass  to  personal  property,  see 

Trespass,  24. 

—  condemnation  proceedings,  see  Eminent 

Domain,  305-331. 

—  proceedings    for    construction   of  grade 

crossing,  see  Crossing  of  Streets  and 
Highways,  109. 

crossing  of  railways,  see  Crossing 

of  Railroads,  28-31. 

to  bond  cities  and  towns  in  aid  of  rail- 
ways,  see  Municipal  and  Local  Aid, 
80-90. 

compel  issue  of  railway  aid  bonds, 

s.ee  Municipal  and  Local  Aid,  291. 

—  quo  warrant'* .  sufficiency  of,  see  Quo  War- 


9T4 


PETITIONER-PHILADELPHIA  &  R.  R.  CO.,  1. 


•flM 


ii^M 


In  itockkilllng  cases,  sec  Animals,  Injuries 

—  suit  to  enforce  railway  aid  bonds,  see  Mu- 

NK'irAI,  AND  Lix  Al.  All),  JIJM. 

enjoin  unlawful  tax,  see  Taxation, 

—  trespass  by  landowner  for  wrongful  inter- 

ferenc<»  with  property,  see  Eminent  Do- 
main, iO(lH. 

Of  intervention  in  foreclosure,  see  Mokt- 
(iA(!i:s,  20I. 

Sufficiency  of,  in  actions  for  causing  death, 
see  Dkatii  iiy  WkoN(;fi:i,  Act,  1  li5. 

on  application   for  receiver,  see    Re- 

CKIVKKS,   20. 

To  condemn  land,  amendment  of,  see  Ele- 
vated Railways,  40. 


PETITIONER. 

Substitution  of  new,  see  Eminent  Domain, 
250. 


PETROLEUM. 
Ordinances  forbidding    the  storing  of,  see 
Streets  AND  Hi(>h\vavs,  ii04. 


PHILADELPHIA. 

Decisions  particularly  applicable  to,  see  Mu- 
nicipal Coki'orations,  lili. 

Joint  use  of  street-car  tracks  in,  see  Street 
Railways,  240. 


PHILADELPHIA,  0.  &  N.  R.  CO. 
1.'  Biglit   to  coiidcniii  land. —  The 

company  has,  under  its  charter,  and  the 
various  enabling  supplements,  the  right  to 
appropriate  property  for  its  use  for  sidings, 
switches,  turnouts,  and  necessary  branches, 
subject  to  the  limitations  imposed  upon  its 
exercise  of  eminent  domain.  Lewis  \^  Ger- 
mantmun,  N.  6-  P.  R.  Co.,  16  Phila.  (Pa.) 
608. 

The  company  can  build  on  Washington 
street  of  tlie  borough  of  Conshohocken, 
conceding  it  to  be  a  public  street,  without 
and  against  the  consent  of  the  borough. 
Leivis  V.  Gertnantown,  N,  &•  P.  P.  Co.,  16 
P/tila.  (Pa.)  608. 

2.  Bight  to  lease  franchise.— There 
being  no  authority  vested  in  the  company 
to  lease  its  unexercised  fninchises  of  appro- 
priation and  construction,  the  Philadelphia 
&  Reading  R.  Co.,  no  matter  how  ample 
are  the  terms  of  the  demise,  can  take  noth- 
ing more  than  the  power  "  to  run,  use.  and 
operate  "  such  road,  and  do  sucli  oilier  acts 


as  are  necessary  to  the  successful  open* 
tion  of  an  t'xisling  road.  Liwt's  v.  German' 
dm'M,  A'.  &-  /'.  P.  Co.,  iT)  I'fiila.  (/'<!.)  608.— 
Qi'oTiNd  I^ittsburgh  &  C.  K.  Co.  7'.  Bed- 
ford &  B.  R.  Co.,  8i*  fa.  St.  112. 

The  lease  did  not  by  its  terms  vest  the 
lessee  with  the  authority,  of  its  own  motion, 
to  put  in  force  unexcrlcd  franchises  of  con- 
struction and  appropriation  vested  in  the 
lessf)rs ;  but,  on  ilir  oiitrary,  by  implication, 
reserved  the  exclusive  right  of  the  latter  to 
put  stich  power  in  force,  /.tm'/.iv.  Cirtnan- 
town.  A'.  &-  P.  P.  Co.,  16  P/iila.  (Pa.)  608, 

The  company  can  alone  put  in  force  its 
franchises  which  were  unexercised  al  the 
time  of  the  demise.  It  nuist  be  understood, 
however,  that  that  applies  to  the  franchises 
of  appropriation  and  construction  of  lateral 
roads  beyond  the  limits  of  corporate  ac- 
quisition at  the  time  of  tlie  demise.  Lewis 
V.  GermantowH,  N.  &*  P.  P.  Co.,  16  PMa. 
(Pa.)  608. 

The  receivers  of  the  Philadelphia  &  R.  R. 
Co.  cannot,  either  with  or  without  the  au- 
thority of  the  circuit  court,  exercise  a  fran- 
chise of  the  lessor  company  not  demised  to 
the  company.  Lewis  v.  Gertnantown,  N.  &* 
r.  p.  Co.,  16  PAi/a.  (Pa.)  608. 

Whether  such  franchise  was  ever  demised 
or  not  to  the  Philadelphia  &  R.  R.  Co.  is 
immaterial,  for  being  iinexerted  it  could  not 
pass  into  the  possession  of  tlie  receivers. 
L.ewis  V.  Gertnantown,  N,  fi"*  P.  P.  Co.,  16 
J'/ii/a.  (Pa.)  608. 

The  receivers,  having  no  authority  to  con- 
struct the  frog,  siding,  turnouts,  switches, 
and  branch  roads  crossing  Washington 
street,  are  mere  trespassers,  and  have  no 
standing  in  court.  Leivis  v.  Gertnantown, 
N.  6-  P.  P.  Co.,  16  Phila.  (Pa.)  608. 


PHILADELPHIA  &  R.  R.  CO. 
1.  Construction  of  road  and 
hranclies. — The  rights  which  the  com- 
monwealth enjoyed  under  the  act  of  March 
21,  1831,  and  the  ordinance  of  the  councils 
of  Philadelphia  passed  April  28,  1831,  rela- 
tive to  the  construction  and  continuance  of 
a  railroad  from  the  intersection  of  Vine  and 
Broad  streets,  down  Broad  to  Cedar  street, 
were  transferred  to  the  Philadelphia  & 
Reading  R.  Co.  by  the  canal  commissioners' 
deed  of  December  27,  1850,  and  tlie  act 
authorizing  said  sale ;  and  nothing  short 
of  the  exercise  of  the  power  of  eminent 
domain,    by    a    taking    accompanied   with 


PHILADELPHIA  &  R.  R.  CO,  2,  3.~PHYSICAL  EXAMINATION,  1.  976 


compensation,  can  defeat  the  rights  thus 
ncqmrcd  by  said  company.  Philiuielphia 
&^  A'.  A'.  Co.  V.  I'hitadilphia.  47  I'a.  St.  325, 

Under  Pa.  Acts  ol  Aprd  13,  1846,  and  of 
April  13,  1864,  tlie  company  may  make 
lateral  or  branch  roads  from  its  mam  line  to 
points  in  counties  throii),di  which  the  mam 
line  passes,  and  may  appropriate  such  land 
as  IS  necessary  on  pavment  ot  damage. 
French  v.  VhiUuiclphia  &*  A'.  R.  Co.,  13 
J'/uia.  i/'ii.)  187. 

2.  12l«tctloii  ol  o(lic«;rH.  — If  the  elec- 
tion lor  olTitcrs  ol  the  company  is  not  held 
fit  tlie  annual  meeting,  but  at  a  subsequent 
one  called  for  that  pur[)ose,  such  election  is 
to  be  governed  by  the  same  rules  as  if  it 
had  been  held  at  the  annual  meeting.  /JA- 
Cahmmts  v.  Philadelphia  &*  A'.  A\  Co.,  15 
J'ht/a.  (/'<!.)  153. 

t'i.  I<(>orpiiiizatloii.— The  voting  trus- 
tees appointed  under  the  reorganization  of 
the  company  in  1887  are  not  the  represent- 
atives of  the  shareholders  alone,  but  of  the 
lien  creditors  also,  and  apparently  occupy  a 
position  analogous  to  that  of  a  disinterested 
third  person  chosen  by  a  debtor  and  his 
creditor  to  hold  the  pledge  for  the  benefit 
ol  Doth.  Whether  they  have  a  right  to  elect 
officers  ot  the  corporation  in  defiance  of  the 
wishes  of  the  shareholders  is  not  sufficiently 
clear  to  warrant  a  preliminary  injunction 
against  their  so  doing,  especially  when  it 
might  prevent  the  holding  of  the  election. 
Shelmerdine  v.   Welsh,  20  Phila.  (Pa.)  199. 

PHOTOOBAFHS. 
Admissibility  and  effect  of,  as  evidence,  see 

EviDENCK.  2;J«,  687. 
—  of,  in  evidence,  see  Death  nv  Wrongful 

Act,  246  ;  Evidknce,  40. 

PHYSICAL  GONBITION. 

Of  injured  person,  opinion  of  witness  M  to, 
see  Witnesses,  lOO. 


PHYSICAL  EXAMINATION. 

Admissibility  of  evidence  of  objection  to,  see 
Evidence,  06. 

1.  ConipiilHory  examination,  when 
properly  ordered.*  —  In   an  action   for 


*  Surgical  examination  of  plaintiff's  person, 
see  notes,  47  Am.  &  Eng.  R.  Cas.  41-;. ;  iS/d.  216. 

Power  of  court  to  order  injured  persons  to  sub- 
mit to  private  medical  examination,  or  to  exhibit 
effect  of  injury  to  jury,  see  notes,  49  Am.  Rep. 
726 ;  50  /</.  1 56 ,  14  L.  R.  A.  466 , 3  Am.  St.  Rep. 
554- 


damages  for  personal  Injuries  the  plaintifT 
may  be  required  by  the  court,  upon  a  jiroper 
application  therefor  by  the  defendant,  to 
sut)mit  his  person  to  an  examination  lor  the 
purpose  of  ascertaining  the  cliaracter  and 
extent  of  his  injuries.  .S'chniediT  v.  Chitn^o, 
P.  /.  i^  /*,  P.  Co.,  47  /inca  375,  14  //w.  A'y. 
Kip.  359.— CRIIICISED  A.ND  DISAIM'KoVKU 
IN  Roberts  7-.  Ogdensburgh  &  L.  C.  R.  Co., 

29  lluil  (N.   V.)  154.       Dl,SAPl'K()VK,l)  IN  Mc- 

yuigan  V,  Delaware,  L.  &  \V.  R.  Co.,  129 
N.  Y.  50.  D1STINOUI.SIIKI)  IN  Siou.x  Ciiy 
fi  P.  R.  Co.  V.  Finlayson,  16  Neb.  578.  Nor 
Foi.LowKD  IN  McQuiglan  %>.  Delaware,  L.  «i 
W.  R.  Co.,  21  Civ.  IVo.  (N.  Y.)  396,  Neu- 
man  v.  Third  Ave.  R.  Co..  18  J.  &  S.  (N.  Y.) 
412;  Joliet  St.  R.  Co.  7'.  Call,  143  III.  177. 
yuoTF.i)  IN  Atchis(jn,  T.  &  S  F.  R.  Co.  v. 
Thul,  29  Kan.  466,  44  Am.  Rep.  t^^.— Ala- 
bama (t.  S.  P.  Co.  V.  //ill,  44  /Im.  &*  Piif!;. 
A'.  Cas.  441,  cp  Ala.  71,8  So.  AV/>.  90.  Atch- 
ison, T.  &^  S.  /•'.  A'.  Co.  V.  T/tul,  10  Am. 
«S>«  F.nv;.  A".  Cas.  783,  29  Kan.  466,  44  Am. 
/iep.  659.— Quoting  Loyd  v,  Hannibal  & 
St.  j.  R.  Co.,  53  Mo.  515;  Schroeder  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  47  Iowa  378. 
—  Not  FOI.LOWKD  IN  Neuman  v.  Third 
Ave.  R.  Co.,  18  J.  &  S.  (N.  Y.)  4i2.-/r////<? 
V.  A/ilwattkee  City  A'.  Co.,  18  Am.  &*  /Cng. 
A'.  Cas,  213,  61  Wis.  536,  21  A'.  W.  /\'ep. 
524,  50  Am.  Pep.  154.  McNaier  v.  ^/an• 
hattan  P.  Co.,  22  A^.  Y.  S.  P.  840.  51  i/un 
644,  mem.,  4  A^.  Y.  Stipp,  310;  affirmed  in 
123  A'.   Y.  664,  mem.,  34  A^.  Y.  S.  P.  1010. 

The  fact  that  plaintifT  in  an  action  for 
personal  injuries  was  a  young  woman  of 
nervous  temperament,  and  of  delicate  and 
refined  feelings,  is  not  a  sufficient  cause  for 
overruling  a  motion  for  a  physical  examina- 
tion of  her  person  by  physicians,  where  it 
appears  that  her  attending  physician  had 
already  made  several  examinations,  and 
that  no  ill  consequences  would  result  from 
the  proposed  examination.  Alabama  G.  S. 
R.  Co.  v.  Hill,  44  Am.  &'  Eng.  A'.  Cas.  441, 
90  Ala.  71,  S  So.  A'ep.  90. 

In  such  case  it  is  error  to  refuse  to  order 
a  physical  examination  of  plaintiff's  person 
on  the  ground  that  an  examination  had  al- 
ready been  made  by  plaintiff's  physician, 
who  had  deposed  to  the  injuries  complained 
of,  where  the  opinions  and  conclusions  of 
such  physician  are  not  concurred  in  by  sev- 
eral other  reputable  surgeons.  Alabama  G. 
S.  P.  Co.  v.  Hill,  44  Am.  <S-  Ettg.  P.  Cas. 
441, 90  Ala.  71,8  So.  Rep.tp, 


:P 


976 


PHYSKTAL   EXAMINATION,  2. 


H 


2.  When  not  properly  onlorcd.— 

In  an  action  (or  an  injury  to  a  passenger 
the  courts  of  the  United  States  have  no 
power  to  order, on  the  application  of  defend- 
£.it,  and  in  advance  of  the  trial,  that  plain- 
tiiJ,  witliout  his  or  her  consent,  submit  to  a 
surgical  examination  as  to  tlie  extent  of  the 
injury.  Union  Pac.  R.  Co.  v.  Dotsford,  47 
Am.  &*  Eng.  K,  Cas.  406.  141  U.  S.  250,  11 
Sup.  Ct.  Rep,  1000.— Approved  in  Joliet 
St.  R.  Co.  V.  Call,  143  111.  177.  DisriN- 
GUISHED  IN  Baltimore  &  O.  R.  Co.  7 .  An- 
drews, S3  Am.  &  Eng.  R.  Cas.  523,  50  Fed, 
Rep.  728,  I  C.  C.  A.  636.  Followed  in 
McQuiglan  v.  Delaware,  L.  &  W.  R.  Co  ,  21 
Civ.  Pro.  (N.  Y. )  396.  Quoted  in  Penn- 
sylvania Co.  V.  Newmeyer,  129  Ind.  401. 

The  trial  court  has  no  inherent  power  to, 
and,  in  the  absence  of  a  statute  conferrmg 
the  right,  may  not,  in  advance  of  the  trial 
of  an  action  for  personal   injuries,  compel 
the  plaintiff,  on  the  application  of  the  de- 
fendant, to  submit  to  an  examination  of  his 
person  by  surgeons  appointed  by  the  court, 
with  a  view  to  enable  them  to  testify  on  the 
trial  as  to  the  existence  or  extent  of  the  al- 
leged injury.    McQuigan  v.  Delaivare,  L.  &* 
W.  R.  Co.,  48  Am.  &*  Eng.  R.  Cas.  490,  1 29 
JV.  V.  50,  21  Civ.  Pro.  396,  29  A^.  E.  Rep. 
235,  41  A^.  Y.  S.  R.  382 ;  affirming  60  Hun 
576,  38  N.  Y.  S.  R.  1021,  15  A.  r.  Supp.  973. 
— Disapproving  Schroeder  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  47  Iowa  375.    Distinguish- 
ing Briggs  V.  Morgan,  2  Hagg.  Const.  324; 
Devanbagh  v.    Devanbagh,   5    Paige   554, 
Newell  V  Newell,  9  Paige  25.    Overrul- 
ing  \\  i:  .h  V.  Sayre,  52    Hew,   Pr.  (N.  Y.) 
334. — Approved  in  Joliet  St.  R.  Co.  v.  Call, 
143  111.  ijj.— Roberts  v.  Ogdensburgh  &*  L. 
C.  R.  Co.,  29  Hun  (JV.  Y.)  154.— Criticis- 
ing AND  disapproving  Schroeder  v.  Chi- 
cago, R.  I.  &  P.  R.  Co.,  47  Iowa  375.     Dis- 
tinguishing Harrold  v.  New  York  El.  R. 
Co.,  21  Hun  268.— Followed  in  McQuig- 
lan  V.  Delaware,  L.  &   W.  R.  Co.,  21    Civ. 
Pro.   (N.  Y.)   396.     See   Neuman  7'.   Third 
Ave.   R.  Co.,  18  J.  &  S.  412.— AV//;«rt«  v. 
T/tird  Ave.  R.  Co.,  18  /.  6-  S.  (N.  Y.)  412  ; 
appeal  dismissed  (?)  97  N.  Y.  632,  mem.— 
Distinguishing  Harrold  v.  New  York  El. 
R.  Co.,  21  Hun  268.      Following  Roberts 
V.  Ogdensburgh  R.  &  L.  C.  Co.,  29  Hun  155. 
Not  following  Schroeder  w.  Chicago,  R.  I. 
&  P.  R.  Co.,  47  Iowa  375  ;  Miami  &  M.  Turn- 
pike Co.  r.  Baily,  37  Ohio  St.   104;  Atchi- 
son, T.  &  S.  F.  R.  Co.  V.  Thul,  29  Kan.  466, 
44  Am.  Rep.  6^g.—ArcAer  v,  5/Ur//;  Ave.  R. 


Co.,  20  J.  &>  S.  (iV.  y.)  378,  affirmed  in  108 
yV.  }'.  632,  mem.,  15  N.  E.  Rep.  75.  13  ;V.  Y. 
S.  R.  S99.— Distinguishing  Mulhado  v. 
Brooklyn  City  R.  Co.,  30  N.  Y.  370.— 
McQuigan  v.  Delaware,  L.  &»  W.  R.  Co., 
129  N.  Y.  50,  29  N.  E.  Rep.  235,  21  Civ. 
Pro.  396.  — Following  Roberts  v.  Ogdens- 
burgh &  L.  C.  R.  Co.,  29  Hun  154;  Union 
Pac.  R.  Co.  V.  Botsford,  141  U.  S.  250. 
Not  following  Schroeder  v.  Chicago,  R. 
1.  &  P.  R.  Co.,  47  Iowa  375,  19  Alb,  L.  J. 
234. 

In  the  absence  of  a  statute  authorizing  it, 
^  party  to  an  action  is  not  required  to  sub 
mit  his  person  to  an  examination  of  his  111- 
juriesby  surgeons  appointed  by  the  court  for 
tliat  purpose.  Pennsylvania  Co.  v.  A/ew- 
meyer,  52  Am.  i5-»  Eng.  R.  Cas.  454,  129  /nd. 
401,  28  N.  E.  Rep.  860.— Quoting  Union 
Pac.  R.  Co.  V.  Botsford,  141  U.  S.  250.— 
Loyd  V.  Hannibal  &^  St.  J.  R.  Co.,  53  Mo. 
509,  12  Am.  Ry.  Rep.  474. — Modified  in 
Sidekum  v.  Wabash,  St.  L  &  P  R.  Co.,  30 
Am.  &  Eng.  R  Cas.  640,  93  Mo.  400,  10 
West.  Rep.  27S,  4  S.  W.  Rep.  701.  Quoted 
IN  Atchiscn,  T.  &  S.  F.  R.  Co.  v.  Thul,  29 
Kan.  466,  44  Am.  Rep.  659 ,  Shepard  v, 
Missouri  Pac.  R,  Co.,  85  Mo.  62g,— Peoria, 
D.  &>  E.  R.  Co.  V.  Rice,  46  III.  App.  60.— 
Applying  Parker  v.  Enslow,  102  111.  272 ; 
Chicago  &  E.  R.  Co.  v.  Holland,  122  111. 
j^6\.— Joliet  St.  R.  Co.  v.  Call,  143  ///.  177,  32 
N.  E.  Rep.  389.— Approving  Union  Pac. 
R.  Co.  V.  Botsford,  141  U.  S.  250;  Mc- 
Quigan v.  Delaware,  L.  &  W.  R.  Co.,  129  N. 
Y,  50.  Following  Parker  v.  Enslow,  102 
111.  272.  Not  following  Schroeder  z/.  Chi- 
cago, R.  I.  &  P.  R.  Co.,  47  Iowa  yj$.— Peoria, 

D.  Sf  E.  R.   Co.  V.  Rice.  144  ///.  227,  33  A^. 

E.  Rep.<)%\.  Stuart  v.  Havens,  17  Xeb  211, 
22  N.  IV.  Rep.  419.  — Following  Sioux 
Ci£.y  &  P.  R.  Co.  V.  Finlayson,  16  Neb.  578  , 
White  z>.  Milwaukee  City  R.  Co.,  61  Wis. 
536,  21  N,  W.  Rep.  524. 

It  IS  not  error  to  refuse  such  examination 
in  the  absence  of  any  showing  whatever 
that  justice  would  be  promoted  thereby, 
and  especially  so  when  the  plaintiff  submits 
to  an  examination  by  such  witnesses  in  the 
presence  of  the  jury.  Gulf,  C.  &^  S.  F.  R.  Co. 
v.  Norfleet,  45  Am.  &•  Eng.  R.  Cas.  207,  78 
Tex.  321,  14  5.  W.  Rep.  703.  International 
&*  G.  N.  R.  Co.  V.  Underwood,  27  Am.  &^ 
Eng.  R.  Cas.  240,  64  Tex.  463. —Reviewed 
in  Missouri  Pac.  R.  Co.  v.  Johnson,  37  Am, 
&  Eng.  R.  Cas.  128,  72  Tex.  95.  10  S.  W. 
Rep.  iz'j.— Sioux  City  &•  P.  R.  Co,  v.  Fin- 


PHYSICAL   EXAMINATION,  3-5. 


977 


Irmed  in  io8 
75.  13  AT.  Y. 

Mulhado  v. 

U.   Y.    370.- 

W.  R.   Co., 

235,  21   Ctv. 

s  z/.  Ogdens- 

154;  Union 
U,    S.   250. 

Chicago,  R. 

19  Alb.  L.  j. 

ithorizing  it, 
uired  to  sub 
on  of  his  111- 
the  court  for 
Co.  V.  Mi-w 
454,  1 29  /ltd. 
)TiNO  Union 
U.  S.  250.- 
.  Co.,  53  ATo. 

lODIFIKD    IN 

P   R.  Co.,  30 

Mo.  400,  10 
•I.  Quoted 
I.  7'.  Thul,  29 
,  Shepard  ». 
S29.  —Peoria, 
I  A  pp.  60.— 

102  III.  272  ; 
land,  122  111. 
43  ///.  177,  32 

Union  Pac. 
S.  250;  Mc- 
'.  Co.,  129  N. 

Enslow,  102 
•oederf.  Chi- 
y]^.— Peoria, 
U.  227.  33  N. 
',  17  Xeb  211, 
wiNc;    Sionx 

16  Neb.  578 , 
Co.,  61  Wis. 

examination 
ng  whatever 
ited  thereby, 
ntiil  submits 
nesses  in  the 
«•  5.  F.  R.  Co. 
Cas.  207,  78 
International 
I,  27  Am.  &^ 
—Reviewed 
nson,  37  Am. 
95.  10  S.  W. 
?.  Co.  V.  Fin- 


Jayson,  16  Neb.  578,  20  N.  W.  Rep.  860,  49 
Am.  Rep.  724.— DISTINGUISHING  Schroeder 
V.  Chicago,  R.  I.  &  P.  R.  Co.,  47  Iowa  375. 
— F0Li.0WED  IN  Stuart  z/.  Havens,  17  Neb. 
211. 

In  an  action  against  a  railway  company 
to  recover  for  personal  injuries  to  the  plain- 
tiff occasioned  by  negligence,  tlie  defendant 
asked  for  an  order  of  court  that  the  plain- 
tiff submit  to  an  examination  by  certain 
physicians  named  in  the  motion,  which  was 
overruled.  Something  over  a  year  later  the 
defendant  sent  two  physicians  of  its  selec- 
tion to  examine  as  to  plaintiff's  physical 
condition,  one  of  whom  iiad  before  made  a 
thorough  examination,  who  was  not  ad- 
mitted, but  the  other  was,  and  made  an  ex- 
amination. Still  later  another  of  the  physi- 
cians named  in  the  motion  was  allowed  to 
make  a  thorough  examination  of  plaintiff. 
Held,  that  as  the  defendant  had  the  benefit  of 
An  examination  by  three  of  its  physicians, 
It  could  not  complain  of  the  overruling  of 
its  motion.  Chicago  &^  E.  R.  Co.  v.  Hol- 
land, 30  Am.  &•  Eng:  R.  Cas.  590,  122  ///. 
4''>i,  13  yV.  £.  Rep.  145,  II  litest.  Rep.  51  ; 
affirming  iS  ///.  App.  418. — APPLIED  IN 
i'eoria,  D.  &  E.  R.  Co.  v.  Rice,  46  III.  App. 
Co.  Rkviewed  in  Joliet  3t.  R.Co.  v.  Call, 
42  111.  App.  41. 

.*{.  Diseretioiisiry  power  of  the 
court. — The  right  of  the  defendant  in  an 
iiction  against  him  for  a  personal  injury  to 
have  the  plaintiff's  injuries  personally  ex- 
amined by  physicians  so  that  the  latter 
may  testify  as  to  their  character  and  extent 
IS  not  an  absolute  one.  It  is  a  matter  as  to 
which  the  trial  court  has  a  discretion  which 
will  not  be  interfered  with  unless  manifestly 
abused.  Shepard  v.  Missouri  Pac.  R.  Co., 
85  Mo.  629.  55  Am.  Rip.  390.— Quoting 
Loyd  V.  Hannibal  &  St.  J.  R.  Co.,  53  Mo. 
515.— Quoted  in  Sidekum  v.  Wabash,  St. 
L.  &  P.  R.  Co.,  30  Am.  &  Eng.  R.  Cas.  640. 
93  ^  i.  400, 10  West.  Rep.  278,  4  S.  W.  Rep. 
701.  Reviewed  in  Owens  7/.  Kansas  City, 
St.  J.  &  C.  B.  R.  Co.,  33  Am.  &  Eng.  R.  Cas. 
524,  95  Mo.  169.  15  Wjst.  Rep.  88.  8  S.  W. 
Rep.  1^0.— Sidekum  v.  U'abas/i,  Si.  L.  Sf* 
P.  R.  Co.,  30  Am.  &*  Eng.  R.  Cas.  640,  93 
Mo.  400,  10  West.  Rep.  278,  4  S.  II'.  Rep. 
701.— Modifying  Loyd  v.  Hannibal  &  St.  J. 
R.  Co.,  53  Mo.  515.  Quoting  Shepard  v. 
Missouri  Pac.  R.  Co.,  85  Mo.  634— Re- 
viewed IN  Owens  7/.  Kansas  Citv,  St.  j.  & 
C.  B.  R.  Co.,  33  Am.  &  Eng.  R.'  Cas.  524, 
6  D.  R.  D.-4a 


95  Mo.  169,  ::  West.  Rep.  88,  8  S.  W.  Rep, 
ISO.  —Norton  v.  St.  Louis  &>  H.  R.  Co.,  40 
Mo.  App.  642.  Owens  v.  Kansas  City,  St.  J. 
&*  C.  B.  R.  Co.,  33  Am.  d^  Eng.  R.  Cas.  524, 
95  Mo.  169,  15  West.  Rep.  88,8  J?.  W.  Rep. 
350.— Reviewing  Shepard  t/.  Missouri  Pac. 
R.  Co.,  85  Mo.  629;  Sidekum  7>.  Wabash, 
St.  L.  &  P.  R.  Co.,  93  Mo.  \oo.-Joliet 
St.  R.  Co.  V.  Call,  42  ///.  App.  41  ;  affirmea 
in  143  ///.  177,  32  yV.  E.  Rep.  389.— Review- 
ing Chicago  &  E.  R.  Co.  v.  Holland,  122 
III.  461. 

It  IS  within  the  discretion  of  the  trial 
court  to  require  a  plaintiff,  suing  for  a 
physical  injury  alleged  to  be  permanent, 
to  submit  to  an  examination  by  competent 
physicians  at  the  instance  and  expense  of 
defendant,  to  ascertain  the  nature,  ex- 
tent, and  probable  duration  of  the  injury. 
By  Ga.  Code,  §  206,  every  court  has  power 
to  control,  in  furtherance  of  justice,  the  con- 
duct of  all  persons  connected  with  a  judicial 
proceeding  before  it,  in  every  matter  apper- 
taining thereto.  Richmond  &*  D.  R.  Co.  v 
Childress,  \\  Am.  iS-»  Eng.  R.  Cas.  216,  82  Ca 
719,  9  S.  E.  Rip.  602,  3  L.  R.  A.  808. 

It  is  not  error  in  an  action  for  personal 
iujuries  for  the  court  upon  a  second  trial  to 
refuse  to  require  plaintiff  to  submit  to  an 
exa;nination  by  medical  experts,  the  motion 
to  that  effect  not  having  been  made  until 
after  plaintiff  has  put  in  his  evidence  and 
rested,  and  the  motion  not  being  supported 
by  any  affidavit  showing  any  necessity  for 
it,  or  any  belief  as  to  what  such  examination 
would  develop.  Terre  Haute  &•  I.  R.  Co. 
V.  Brunker,  128  Ind.  542,  26  N.  E.  Rep. 
178. 

4.  Refusal  to  submit  to.— When  the 
court  orders  an  examination  of  plaintiff's 
person,  in  an  action  against  a  railroad  for 
personal  injury,  it  ought  to  appoint  either 
experts  of  its  own  selection,  or  such  as  may 
be  agreed  upon  by  the  parties;  and  it  is  nt-t 
error  to  refuse  to  compel  him  to  submit 
to  examination  by  a  physician  named 
by  the  defendant,  to  whom  he  objects. 
Missouri  Pac.  R.  Co.  v.  Johnson,  37  Am.  &^ 
Eng.  R.  Cas.  128,  72  TeJc.  95,  10  5.  W.  Rep. 
325.— Reviewing  International  &  G.  N.  R. 
Co.  V.  Underwood,  64  Tex.  463. 

5.  Procedure. — Where  an  examination 
of  plaintiff's  person  by  physicians  or  sur- 
geons appointed  by  the  court  is  demanded 
by  defendant,  with  a  view  to  determine 
the   nature  and   extent  of  tl.c  injuries  re> 


978 


PHYSICIANS. 


Efe  ^ 


>■',). 


I^P" 


r  '? 


'■^  4?  ■'' 


.1 


'  's 


ceived.  tlie  selection  of  such  experts  is  en- 
tirely within  the  discretion  of  the  trial 
judge,  who  is  not  required  to  yield  to  the 
sui^gestions  or  wishes  of  either  party ;  and 
his  refusal  to  appoint  a  particular  physician 
at  the  instance  of  defendant  is  not  review- 
able on  error  or  appeal.  Alabama  G.  S.  R. 
Co.  V.  Hill,  93  Ala.  514,  9  So.  Rep.  722. 

Where  medical  experts  are  ordered  by  the 
court  to  examine  a  plaintiff,  and  such  ex- 
jjcrts  are  called  and  questioned  by  defend- 
ant as  to  the  result  of  their  examination, 
plaintiff  may  ask  on  cross-examination  how 
the  examination  was  conducted,  and  what 
questions  were  propounded  to  him,  Louis- 
ville,  N.  A.  &*  C.  R.  Co.  v.  Falvey,  23  Am. 
Sir'  Eng.  R.  Cas.  522,  104  Ind.  409,  3  N.  E. 
Reft.  389,  4  iV.  E.  Rep.  908. 

Physicians  who  were  present  at  the  exam- 
ination, on  behalf  of  plaintiff,  should  be  al- 
lowed to  testify  to  the  particulars  in  which, 
in  their  opinion,  defendant's  medical  wit- 
nesses failed  to  make  proper  or  full  exami- 
nations. Latighlin  v.  Grand  Rapids  St.  R. 
Co.,  26  Afii.  iS-  E>n^'^.  R.  Cas.  377,  62  Mic/i. 
220,  28  N.  IV.  Rep.  873. 

A  defendant  asked  that  plaintiff  should 
submit  to  a  physical  examination,  and 
the  court  said  that  if  it  appeared  neces- 
sary during  the  progress  of  the  trial  he 
would  grant  the  request,  but  the  request 
was  not  subsequently  renewed.  Held,  that 
it  must  be  treated  as  abandoned.  Sidekum 
V.  Wabash,  St.  L.  <S-  P.  R.  Co.,  30  Am.  Sf 
Eng,  R.  Cas.  640,  93  Mo.  400,  10  West.  Rep. 
277,  4  S,  W,  Rep.  701. 

When  a  physician  examines  a  patient  in 
order  to  be  enabled  to  prescribe  for  her,  the 
fact  that  he  made  the  examination  at  the 
instance  of  a  third  person  through  whose 
netjligence  the  patient  was  injured  will  ren- 
der him  incompetent  to  testify  to  the  results 
of  such  examination,  unless  it  appears  that 
the  patient  was  advised  that  he  came  to 
examine  her  in  the  interest  of  such  third 
person,  and  not  in  her  own.  Weitz  v. 
Mound  City  R.  Co.,  53  Mo.  App.  39. 

If  a  personal  examination  is  desired,  the 
application  should  be  made  before  the  trial 
begins  and  experts  are  agreed  upon  by  the 
parties  oi  appointed  by  the  court.  Stuart 
V.  Havens,  17  .Jeb.  211,  22  yV.   W.  Rep.  419. 

In  an  action  for  personal  injuries,  it  is  prop- 
er for  plaintiff  to  exhibit  the  injured  member 
to  a  surgeon  in  the  presence  of  the  jury. 
Mulhado  v.  Broohlyn  City  R.  Co.,  30  N.  Y. 
370.— DiSTiNuuisHKD  IN   Archer  v.  Sixth 


Ave.  R.  Co.,  20  J.  &  S.  (N.  Y.)  378.  Quoted 
IN  Looram  v.  Second  Ave.  R.  Co.,  11  N.  Y. 
S.  R.  652 ;  Cunningham  v.  Union  Pac.  R. 
Co.,  4  Utah  206. 

The  New  York  Act  of  1893,  ch.  721,  which 
gives  a  defendant,  when  sued  for  personal 
injuries,  the  right  to  demand  that  plaintiff 
submit  to  a  physical  examination,  contem- 
plates that  the  application  for  the  exami- 
nation shall  be  made  as  an  addition  to  an 
application  for  the  ordinary  examination  of 
an  adversary  before  trial.  Lyon  v.  Manhat- 
tan R.  Co.,  27  N.  V.  Supp.  966,  7  Misc.  401. 

Upon  application  for  an  order  for  exami- 
nation of  the  injured  party,  unless  assented 
to,  opposition  should  be  made  at  the  time 
to  the  order.  After  such  order,  and  its 
execution  without  opposition,  the  party 
affected  has  no  right  to  attack  it  in  an 
appeal  to  the  jury.  Gulf,  C.  &'  S.  F.  R.  Co. 
v.  Butcher,  52  Am.  &^  Eng.  R.  Cas.  615,  i83 
Te.v.  309,  18  S.  W.  Rep.  583. 

In  an  action  for  personal  injuries,  plaintiff 
complained  of  pain  and  weakness  in  the 
hip  down  to  the  time  of  the  trial ;  and  at 
the  request  of  defendant  she  submitted  to 
an  examination  at  the  trial  by  a  number  of 
physicians,  one  half  selected  by  either  side. 
They  all  testified  that  there  was  no  appear- 
ance of  physical  conditions  that  would 
cause  the  pain  complained  of,  but  one, 
called  by  the  plaintiff,  testified  that  he 
thought  he  could  tell  whether  she  suffered 
pain  from  the  movement  of  the  hip,  judging 
from  the  examination  and  what  she  said, 
and  that  it  was  his  opinion  that  she  did 
suffer.  Held,  that  the  evidence  was  properly 
adiuitted.  Quaife  v.  Chicago  &•  N.  W.  R. 
Co.,  48  Wis.  513,  33  Am.  Rep.  821,  4  N.  W. 
Rep.  658. 


FHT8ICIANS. 

As  experts,  see  Witnesses,  104-173. 

Declarations  of  pain  and  suffering  made  to, 
see  Evidence,  209. 

Employment  of,  see  Medical  Services,  1-14« 

Evidence  of  statement  to,  as  to  cause  of  in- 
jury, see  Evidence,  210. 

Privileged  communications  with,  see  Wit- 
nesses, 88-00. 

Right  of,  to  compensation,  see  Medical  Ser- 
vices, 15-10. 

Statement  of,  to  patient,  when  deemed  hear- 
say, see  Evidence,  100. 

when  deemed  hearsay,  see  Evidence, 

163. 


PHYSICIANS  AND  SURGEONS— PLACE. 


,  Quoted 
3..  II  N.  Y. 
)n  Pac.  R. 


,  721,  which 
or  personal 
lat  plaintiff 
)n,  contem- 
the  exami- 
lition  to  an 
min«tion  of 
V.  Manhat- 
1  Misc.  401. 

for  examU 
;ss  assented 
at  the  time 
ler,  and   its 

the  party 
:k  it  in  an 
5.  F.  li.  Co. 
Cas.  615,  iSj 

ies,  plaintiff 
less  in  the 
rial ;  and  at 
jbmitted  to 
1  number  of 
'  either  side. 
5  no  appear- 
that  would 
f,  but  one, 
;d  that  he 
she  suffered 
hip,  judging 
it  she  said, 
lat  she  did 
tras  properly 
-  N.  W.  K. 
21,  4  N.  W. 


173. 

\^  made  to, 

riCES,  1-14. 

cause  of  in- 
h,  see  WiT- 
Iedical  Ser> 
eemed  hear- 

:e  Evidence, 


i? 


PHTSIGIANS  AND  SUROEONS. 

Competency  of  evidence  of  advice  of,  see  Evi- 
dence, 20. 

failure  to  call,  see  Evidence,  43. 

Implied  powers  of,  see  Agency,  18. 

Incompetency  of,  as  a  defense  to  action  for 
causing  death,  see  Death  by  Wrongful 
Act,  165. 


PIERS. 

When  deemed  fixtures,  see  Fixtures,  5. 


PILOT. 

Of  engine,  contributory  negligence  in  riding 
on,   see    Employes,    Injuries    to,   372» 

37:J. 

—  engines,  duty  to  employes  as  to  safety  of, 
see  Employes,  Injukik.s  ro,  133. 

JLiability  for  injury  to  person  riding  on,  see 
Trespassers,  Injuries  to,  84. 


PIRACY. 
When  a  defense  to  carrier,  see  Carriage  of 
Merchandise,  19. 


PLACE. 

Admissibility  of  evidence  as  to  condition  of 
track  at  other  places  than  that  of  acci- 
dent, see  Evidence,  OO. 

Agreement  to  deliver  goods  at  specified,  see 
Carriage  of  Merchandise,  254. 

Assumption  of  risk  while  riding  in  perilous, 
a  question  for  jury,  see  Employes,  Inju- 
ries to,  7 20-732. 

At  which  traveler  should  stop,  look,  and  lis- 
ten, see  Crossings,  Injuries,  etc,  at, 
270,  277. 

Contracts  to  locate  station  at  particular,  see 
Stations  and  Depots,  33. 

—  —  validity  of,  see  CoNrRACTs, 

50,  00. 

Contributory  negligence  in  riding  in  danger- 
ous, see  Employes,  Injuries  to,  370- 
380. 

Discrimination  by  carrier  as  between,  see 
Discrimination,  37-40. 

Duty  to  provide  safe,  in  which  to  work,  see 
Employes,  Injuries  to,  38-44. 

Exemplary  damages  for  ejection  from  train 
in  dangerous,  see  Ejection  of  Passengers, 
118. 

Expulsion  from  sleeping  car  at  improper,  see 
Sleeping,  etc.,  Companies,  17. 

Failure  of  vice-principal  to  provide  safe,  lia- 
bility of  company,  see  Fellow-servants, 
»2. 

For  ejection  of  trespasser,  what  proper,  see 
Trespassers,  Injuries  10,  OO. 


For  passenger  to  ride,  duty  of  carrier  to  pro- 
vide safe,  see  Carriage  of  Passengers, 
181. 

—  payment  of  coupons,  see  Coupons,  8. 
Getting  ofT  train  at  dangerous,  contributory 

negligence,  see  Carriage  of  Passengers, 
403-414. 
Of  accident,  allegation  of,  in  complaint,  see 
Carriage  of  Passengers,  541. 

—  —  evidence  to  show,  see  Animals,  Inju- 

ries to,  404. 

^  —  when  need  not  be  alleged  in  pleadinv 
see  Employes,  Injuries  to,  514. 

<—  business  of  defendant,  jurisdiction  as  de- 
pendent upon,  see  Jurisdiction,  5. 

where    process  may  be    served,  see 

Process,  19. 

—  construction  of  roads,  measure  of  damages 

for  breach  of  contract  as  to,  see  Damages, 
51. 

—  crossing  railways,   fixing,  in  award,  see 

Crossing  of  Raii.uoads,  53,  54. 

track,  negligence  of  traveler  as  to, 

see  Crossings,   Injuries,  etc.,  at,  202, 
203. 

—  delivery  by  carrier  of  live  stock,  see  Car- 

riage OF  Live  Stock,  51. 

of  baggage  by  company,  see  Baggage, 

02. 

— goods  carried,  see  Express  Compa- 
nies, 45,  40. 

what  proper  or  sufficient,  see  Carriagb 

of  Merchandise,  202,  203. 

—  deposit  of  land  damages,  notice  o(*  see 

Eminent  Domain,  302. 

—  egress  from  train,  duty  to  provide  safe, 

see  Carriage  of  Passengers  230-242. 

—  ejection  of  trespasser  from  train,  see 
Ejection  of  Passengers,  08. 

—  employment,  assumption  of  risk  as  to,  see 

Employes,    njuriks  to,  187. 

—  entering   cars,   fixing,  by  company,   see 

Carriage  of  Passengers,  78. 

—  entry  by  animal  on  track,  evidence  to 

show,  see  Animals,  Injuries  to,  403. 

—  —  —  —    presumption  as  to,  see 

Animals,  Injuries  to,  474. 

on  track,  how  alleged,  see  Animals, 

Injuries  to,  OlO,  620. 

when  question  of  fact,  see  Ani- 
mals, Injuries  to,  548. 

—  expulsion  of  passenger,  see  Ejection  or 

Passengers,  04-G8. 

—  giving  notice  of  condemnation  proceed- 

ings, see  Eminent  Domain,  202. 

—  holding  coroners'  inquests,  see  Coroners, 

1. 

—  injury,  evidence  of,  as  controlled  by  the 

pleadings,  see  Pleading,  111. 

statute   requiring  notice  of,  see  Em* 

ploy£s,  Injuries  to,  501. 


980 


PLACE   OF   BUSINESS— PLATFORMS. 


■''J 


Of  issuing   attachment,    see     Attachmknt, 

ETC.,  41. 

—  killing  animal,  presumption  as  to,  see  Ani- 

mals, Injuriks  to,  475. 
— when    question  of   fact,  see    Ani- 
mals, Injuries  to,  {>49. 

—  —  stock,   burden  of  proof  to  show,   see 

Animals,  Injuriks  to,  49i>. 

—  meeting  of  commissioners  to  assess  dam- 

ages, s=ee  Eminent  Domain,   505. 
— directors,  see  Dirkctors,  etc.,  19. 

—  payment  of  coupon,  see  Coupons,  3. 

<—  —  stating,  in  railway  aid  bond,  see  Mu- 
nicipal and  Local  Aid,  311. 

—  presenting  claim  for  loss,  stipulation  as 

to,  see  Bills  of  Lading,  OO. 

—  registration  of  mortgages,  see  Mortgaces, 

OU. 

—  residence  or  business  as  situs  of  property 

for  taxation,  see  Taxation,  127,  128. 

—  service  of  attachment,  see  Attachment, 

ETC.,  45. 

process,  see  Process,  40. 

—  shipment,  limiting  damages  to  market 
value  at,  see  Carriage  of  Merchandise, 
4«2. 

—  trial  by  jury  in  assessment  of  land  dam- 

ages, see  Eminent  Domain,  540. 

—  —  what  proper,  and  how    changed,  see 

Trial.  5-11). 

—  work,  assumption  of  risk  from  unsafe,  see 

Employes,  Injuries  to,  280. 

—  —  duty  to  warn  infant  employe  as  to,  see 

Employes,  Injuries  to,  402. 

—  —  notice  of  danger  and  peril  connected 

with,  see  Employes,  Injuries  to,  22G. 

—  —  promise  of  employer  to  repair  defects 

in,  see  Employes,  Injuries  to,  25G. 

Riding  in  perilous,  when  contributory  negli- 
gence, see  Carriage  of  Passengers, 
457-498. 

To  move  for  new  trial,  see  New  Trial,  98. 

>—  store  goods  is  that  of  destination,  see  Car- 
riage of  Merchandise.  371. 

—  what,  ordinances  regelating  speed  apply, 

see  Streets  and  Highways,  322. 

—  work,  alleging  negligence  in  failing  to 

provide  safe,  see  Employes,  Injuries  to, 
519. 

—  —  evidence  of  failure  to  provide  safe,  see 

Employes,  Injuries  to,  5G2. 

—  —  negligence  in  failing  to  provide  safe, 

see  Employes,  Injuries  to,  667. 

—  —  person  charged  with  duty  to  provide, 

is  a  vice-principal,  see  Fellow-servants, 
212. 

—  —  sufficiency  of  evidence  to  show  unsafe- 

ty  of,  see  Employes,  Injuries  to,  606. 
Where  a  cattle-guard  must  be  built,  see  Cat- 
tlkguards.  7-14. 


Where  dividends  are  payable,  see  Dividends, 
5. 

—  fences  must  be  built,  see  Animals,  Inju- 

ries to,  95-108  ;  Fences,  52-68. 

—  signals  must  be  given  by  statute  or  ordi- 

nance, see  Streets  and  Highways,  335. 
Working  in  dangerous,  in  the  dark,  when 
contributory  negligence,  see  Employ£s 
Injuries  to,  319. 
See  also  Law  of  Place  ;  Locus  in  Quo. 


PLACE  OF  BUSINESS. 
Of  consignee,  delivery  of  goods  at,  see  Car- 
riage OF  Merchandise,  90,  215. 

—  corporation,  when  deemed  its  residence, 

see  Citizenship,  etc.,  4,  5. 

—  defendant,  when  proper  venue  for  action 

for  causing  death,  see  Death  by  Wrong. 
FUL  Act,  106. 


PLAINTIFF. 

Competency  of,  to  prove  contents  or  value  of 
lost  baggage,  see  Baggage,  114. 

Death  of,  as  ground  of  abatement,  see  Abate- 
ment, 4-6. 

When  sustains  burden  of  proof,  see  Evidence 
143.  

PLANE-ROAD  COMPANIES. 

Condemnation  of  land  of,  see  Eminent  Do- 
main, 123. 


PLANS. 
Filing  of,  generally,  see  Location  of  Route^ 

16. 
under  Canadian  statutes,  see  Eminent 

Domain,  1221. 
Of  construction  as  evidence,  see  Evidence, 

237. 
—  elevated  railway,   adoption  of,  see  Ele- 
vated Railways,  13. 
Proof   of   dedication  by,   see   Streets   and 

Highways,  7. 
Reference  to,  in  deeds,  see  Deeds,  20. 
Under  English  compulsory  purchase  laws, 

see  Eminent  Domain,  1137-1142. 
Use  of,  in    condemnation  proceedings,   see 

Eminent  Domain,  332-340. 


PLATFORM  CAR. 

Contributory  negligence  in  riding  on  side  of, 
see  Employes,  I.njuriesto,  378. 


PLATFORMS. 

Absence  of  guards  at  edge  of,  see  Elevated 
Railways,  205. 

Boarding  train  elsewhere  than  at,  contribu- 
tory negligence,  see  Carriage  or  Passen' 

'iERS,  37  1 . 


e  Dividends, 

[IMALS,    InJU- 

52-08. 
tute  or  ordi- 
[WAYS,  335. 
dark,  when 
e   Employes 

us  IN  Quo. 

ISS. 

at,  see  Car- 

215. 
:s  residence, 

le  for  action 
H  BY  Wrong- 


ts  or  value  of 
114. 

it,  see  Abate- 

see  Evidence; 

lNIES. 

Eminent  Do* 


JN  OF    ROUTE» 

see  Eminent 
ee  Evidence, 

of,  see   Ele- 

Streets   ani> 

[)s,  20. 
rchase  lawi, 
7-1142. 
ceedings,  see 
O. 


ng  on  side  of, 
378. 


see  Elevated 
n  at,  contribu- 

lOB  OP  PaSSEN' 


PLATS— PLEADING. 


Duty  to  provide  «afe,  see  Carriage  of  Pas- 
sengers, 238. 

remove  ice  and  snow  from,  see  Carriage 

OF  Passf-ngkrs,  210. 

stop  alongside  of,  see  Carriage  of  Pas- 
sengers. 210,  229,  204. 

Erection  of,  when  constitutes  a  taking  of 
property,  see  Eminent  Domain,  lOO. 

Injuries  caused  by  snow  and  ice  on,  see  Ele- 
vated Railways,  212. 

—  to  passenger  by  opening  between  car  and, 

see  Elevated  Railways,  207. 

riding  on,  see  Cable  Railways,  1 2. 

Joint  use  of,  by  two  or  more  companies,  see 
Stations  and  Dkpots,  149. 

Liability  for  defects  in,  see  Carriage  of  Pas- 
sengers, 208,  209. 

personal  injuries  at,  see  Stations  and 

Depots,  70-88. 

—  to  passenger  for  defects  in,  see  Carriage 

OF  Passengers,  189. 
Near  track,  duty  of  company  to  fence,  see 

Empi.oyI^s,  78. 
effect  of  notice  or  knowledge  of,  see 

Employes,  Injuries  to,  232. 
Negligence  in  allowing  passengers  to  ride 

on,  see  Street   Railways,  352. 
Of  car,  contributory  negligence  in  riding  on, 

see    Carriage     of    Passengers,    472- 

483. 

—  —  injury  to  passenger  while  standing  on, 

see  Electric  Railways,  20. 

—  crowded  car,  injury  to  passenger  on,  see 

Elevated  Railways,  213. 
Ordinances  as  to  safety  of,  see  Streets  and 

Highways,  314. 
Riding  on,  by  child,  whether  negligence,  a 

question  of  fact,  see  Children,  Injuries 

TO.   111. 

Right  of  street-car  company  to  make  rule 
prohibiting  riding  on,  see  Street  Rail- 
ways, 312. 

Rules  forbidding  standing  on,  see  Carriage  of 
Passengers,  80. 

Stepping  off,  by  passenger,  when  contribu- 
tory negligence,  see  Carriage  of  Pas- 
sengers, 445. 


FLATS. 

Admissibility  and  effect  of,  as  evidence,  see 

Evidence,  231. 
—  of,  in  evidence,  see  Animals,  Injuries  to, 

437. 
Filing,  see  Public  Lands,  42. 
Of  streets,  admissibility  of,  in  evidence,  see 

Death  by  Wrongful  Act,  240. 


In  abatement,  see  Crossing  of  Streets  and 
Highways,  llO. 

— >  action  against  carrier  of  cattle,  see  Car- 
riage of  Live  Stock,  141. 

^  —  for  causing  death,  see  Death  by  Wrong- 
ful Act,  153,  156. 

— loss  of  baggage,  see  Baggage,  111* 

— taxes,  see  Taxation,  317. 

—  —  of  trespass,  see  Trespass,  14. 
on  bill  or  note,  see  Bills,  etc.,  22. 

—  —  —  contracts,  see  Contracts,  90. 

— stock  subscriptions,  see  Subscrip- 
tions to  Stock,  94-98. 

—  condemnation  proceedings,  necessity  and 

sufficiency  of,  see  Eminent  Domain,  350- 
354. 

—  ejectment,  see  Ejectment,  20. 

^  —  by  landowner,  see  Eminent  Domain, 
1026. 

—  equity,  see  Pleading,  86. 

—  luits  against  carriers  of  goods,  see  Car- 

riage of  Merchandise,  734. 

—  —  by    stockholders,    see    Stockholders. 

128. 

—  —  for  injuries  to  employes,  see  Employ£s, 

Injuries  to,  544-549. 

^  trespass  by  landowner  for  wrongful  inter- 
ference with  property,  see  Eminent  Do- 
main, 1069. 

Of  confession  and  avoidance,  alleging  con- 
tributory negligence,  see  Contributory 
Negligence.    78. 

—  "not  guilty  by  statute,"  proving  contrib- 

utory negligence  under,  see  Contribu- 
tory Negligence.  80. 

Striking  out,  on  appeal  from  justice's  court, 
see  Justice  of  the  Peace,  1 8. 

To  action  against  carrier  of  passengers,  see 
Carriage  of  Passengers,  554. 

—  suit  on  construction  contract,   see  CoN> 

structiom  of  Railways,  108. 


PLEA. 

Form    and    sufficiency    of,  generally,    see 
Pleaui.n.;,  :t9-00. 


PLEADING. 

Admissions  in,  see  Evidence,  200. 

Allegations  in,  when  create  estoppel,  see  Es- 
toppel, 12. 

Alleging  or  negativing  contributory  negli- 
gence, see  Contributory  Negligence, 
52-81. 

Amendment  of,  after  statutory  period  has 
run.  effect  of,  see  Limitations  of  Actions, 
13. 

—  —  as  ground  for  continuance,  see  Trial, 
23. 

And  proof  of  incorporation,  see  Corpora- 
tions, 20. 

Averments  as  to  contributory  negligence,  see 
Crossings,  Injuries,  etc.,  at,  227. 

Competency  of  evidence  as  to  matters  not 
alleged,  see  Evidknci-   IM, 


98^ 


PLEADING. 


■'>«!' 


\'l\ 


,  ft  ,  » 


Counts  charging  liability  both  as  carrier  and  In  actions  for  false  imprisonment,  see  False 

as  warehouseman,  see  Carriage  of  Mer-  Imprisonment,  15. 

CHANDisE,  3<ll.  flooding  land,  see  Flooding  Lands, 

Discretion  of  court  in  allowing  amendments  08-7  !• 

of.  see  Appeal  and  Error,  17.  libel  or  slander,  see  Libel,  etc.,  8. 

Disregarding  irregularities  in,  on  appeal,  see loss  of  baggage,  see  Baggage,  100- 

Eminent  Domain,  003.  112. 

Estoppel  to  prove  damages  different  from  —  —  —  injuries  at  crossings,  see  Crossings, 

case  made    by,    see    Eminent  Domain,  Injuries,  etc.,  at,  330-335. 

U42S>  ^ station,  set  Stations  and  Dk- 

Evidence  admissible  ir.'l'       -e  Animals,  In-  pots,  131,  132. 

juries  to,  38  " ,  3t  ,:  -.owservants, by  negligence  of  fellow-senrants, 

457.                                                                        see  Fellow-servants,  440-458. 
in  action  foi  damagea  caused  by caused    by   collision,  see    Col- 

fire,  see  Fires,  172, 173.  lisions,  10. 

—  under,  in  justice'^  .oint.  see  Antmals,  In- fire,  see  Fires,  104-103. 

juries  to,  030.  obstructions  and  encroach- 
How  acts  ultra  vires  should  be  p7.ftv.de  ',  see            ments    in    streets   and  highways,   see 
Ultra  Vires,  2.                                                      Streets  and  Highways,  413. 

—  an  estoppel  should  be  pleaded,  sec  Estop- to  children,  see  Children,  Inju- 

pel,  O.  ries  to,  157-150. 

—  a  release  should  be  pleaded,  see  Release, crops,  etc. ,  from  failure   to 

12.  fence,  see  Fences,  108. 

—  exemption     from    taxation    should    be employes,  see  Employes,  Inju- 

pleaded,  see  Taxation,  153.  ries  to,  503-540. 

—  misnomer  should  be  pleaded,  see  Name  o* infant  employes,  see  EMPLOYfts, 

Railroad,  3.                                                            Injuries  to,  474. 
In  actions  against  carriers,  see  Carriage  of passengers  by  derailment,  see 

Merchandise,  723-730.                                     Derailment,  2. 
of  passengers,  see  Carriage  of interference    with    easement,    see 

Passengers,  537-554.                                         Easements,  15. 
elevated  railway  company,  see  Ele-  —    negligence,   see   Neglicence,  87- 

vated  Railways,  OO-IOO.                                   90. 
lessor  companies,  see  Leases,  etc., refusal  to  transfer  stock,  see  Stock, 

52.                                                                       68. 
railway  company   for   injuries   in taxes,  see  Taxation,  315-317. 

streets  or  highways,   see  Streets  and unlawful  transportation  of  slaves, 

Highways.  383-385.  see  Carriage  of  Slaves,  10. 
by  and  against  express  companies,  see  —  —  founded  upon  misuse  of  signals,  see 

Express  Companies,  83.                                         Crossings,  Injuries,  etc.,  at,  159. 
husband    for   personal  injuries  to of  assumpsit,  see  Assumpsit,  5. 

wife,  ^se  Husband  and  Wife,  lO.  on  contracts,  see  Contracts,  94,  96. 

for  causing  death,  see  Death  by  Wrong- coupons,  see  Coupons,  18. 

FUL  Act,  125-156.  guaranty  of  bond,  see  Guaranty,  11. 

compensation    by    physician,    see over,  by  city  or  town  against  railway 

Medical  Services,  17.  company,   see  Streets   and   Highways, 

conversion,  see  Trover,  14.  400. 

damages  for  loss  of  goods  carried, to  enforce  penalty,  see  Penalty,  12. 

see  Capriage  ok  Merchandise,  121.  — subscriptions  to  stock,  see  Sub- 

'  —  nuisances,  see  Nuisance,  31.  scriptions  to  Stock,  87-100. 

—    wrongful  interference   with —  recover    back     overcharges,    see 

property,  see  Eminent  Domain,  1004.                 Charges,  44. 
discrimination,  see  Discrimination, charges,  see  Charges,  83,  84. 

"18.  penalty  for  discrimination,  see  Dis. 

expulsion  of  passengers,  see  Ejec-  criminatk)n.  78-80. 

TiuN  OF  Passengers,  82-89.  wages,  see  EMPLoyfes,  1.3. 

failure  to  build  and  maintain  fences, upon  covenants,  see  Covenants,  17. 

see  Fences,  96.  leases,  see  Leases,  etc.,  103. 

or  repair  cattle-guards,  see  —  another  action  as  evidence,  see  Evidence, 

Catti.e-c.uards,  24,  25.  238. 


PLEADING,  1. 


983 


nt,  see  Palsb 
)DiNO  Lands, 

lEL,  ETC.,  8. 

•GAGE,  loo- 
se Crossings, 
5. 

IONS  AND  DE- 

ow-serrants, 
458. 

tn,   see    Col- 

104-103. 

nd  encroach- 
ghways,  see 
3. 

ILDREN,  InJU- 

n  failure   to 

VLOVts,  INJU- 

ee  EMPLOYfts, 
erailment,  see 
isement,    see 

LICENCE,    87- 

:k,  see  Stock, 

$15-317. 

on  of  slaves, 
K 

signals,  see 
lt,  150. 

SIT,  5. 

CTs,  04,  00. 
18. 

uaranty,  11. 
ainst  railway 
n   Highways, 

jnalty,  12. 
tock,  see  SuB- 
OO. 
-charges,    see 

Ks.  83,  84. 
lation,  see  Dis- 

s,  1.3. 

5NANTS,    17. 

c,  10.3. 

see  Evidence. 


In  condemnation  proceedings,  sec  Eminent 
Domain,  305,  331. 

—  creditors'  suits,  see  Creditors*  Bill,  8. 

—  ejectmeat,  see  Ejkctmknt,  25,  20. 

—  foreclosure  of  mechanics'  lien,  see  Liens, 

40. 

railway  mortgages,  see  Mortgages, 

104-205. 

—  joint  actions  by  husband  and  wife,   see 

Husband  and  Wife,  JJO. 

—  justice's  court,  see  Justice  of  the  Peace, 

O. 

—  proceedings    to  condemn    right  of  way 

through  street,  see  Strefts  and   High- 
ways. 120. 
— enforce  laborers'  lien,  see  Liens,  50. 

—  replevin,  see  Rei'I.evin,  4. 

—  stock-killing  cases,  see  Animals,  Injuries 

to,  32(»-384. 

Instructions  broader  than,  see  Negligence, 
107. 

In  suits  against  consolidated  companies,  see 
Consolidation,  47. 

final  carriers,  see  Carriage  of  Mer- 
chandise, 002. 

receivers,  see  Receivers,  137. 

by  and  against  foreign  corporations, 

see  Foreign  Corporations,  27. 

assignees,  see  Assignment,  22. 

—  —   —    stockholders,  see   Stockholders, 

125-120. 

for  diversion  of  water,  see  Water  and 

Waikrcourses,  17. 

interference  with  private  ways,  see 

Pleading,  15. 

malicious  prosecution,  see  Mali- 
cious Prosecutions,  lO. 

specific  performance,    see   Specific 

Performance,  22. 

trespass,  see  Trespass,  5,  24,  20. 

to  cancel  railway  aid  bonds,  see  Mu- 
nicipal AND  Local  Aid,  402. 

enforce  railway  aid  bonds,  see  Mu- 
nicipal AND  Local  Aid,  301,  302. 

stockholder's  liability  to  credit- 
ors, see  Stockiioldkrs,  02. 

enjoin  unlawful  tax,  see  Taxation, 

350. 

foreclose  deeds  of  trust,  see  Delds 

of  Trust,  18. 

recover  back  money  paid  for  taxes, 

see  Taxation,  341. 

— restrain  issue  of  railway  aid  bonds, 

see  Municipal  and  Local  Aid,  304. 

under    civil    rights    act,  see  Colored 

Persons,  lO. 

—  trespass  by  landowner  for  wrongful  inter- 

ference with  property,  see  Eminent  Do- 
main, 1000-1071. 

—  wile  s  action  for  injuries  to  her  separate 

estate,  see  Husband  and  Wife,  20. 


Judgment  must  conform  to,  see  Judgment, 

7. 
Objections  to,  how  to  be  taken,  see  Appeal 

AND  Error,  02  ;  Eminent  Domain,  012. 
On  application  for  mandamus,  see  Mandamus, 

20. 
Presumption  of  regularity  respecting,  see  Ap- 
peal AND  Error,  31. 
Rules  of,  relative  to  damages,  see  Damages, 

75-82. 
Setting  out  law  of  foreign  state,  see  Death 

BY  Wrongful  Act,  114. 
What  errors  and  irregularities  respecting, 

will  be  disregarded  on  appeal,  see  Appeal 

AND  Error,  OO. 
—  required   on  assessment  of  damages  by 

jury,  see  Eminent  Domain,  548. 

I.  AT  LAW  AKD  UNDEB  CODES 983 

1 .  Genera/  Principles 983 

2.  Declaration.  Complaint. 

Petition 985 

3.  Plea.    Answer looi 

4.  Demurrer loio 

5.  Replication  and  Subsequent 

Pleadings 1014 

IL  IH  EQUITY 1018 

III.  THE  ISSUE;  ITS  SCOPE  AND    HOW 

JOINED 102 1 

IV.  EVIDENCE  UNDEB  THE  PLEADINGS. 

VABIANCE 1022 

1.  What  Evidence  is  Admissi- 

ble or  Sufficient 1022 

2.  Burden  of  Proof 1034 

3.  Variance 1036 

V.  AMENDED      AND     SUPPLEMENTAL 

PLEADINGS 1043 

VI.  BEMEDIES  fob  EBBOBS    and  DE- 
FECTS.    WAIVEB 1054 

I.   AT  LAW  AND  UNDEB  CODES. 
I.  General  Principles. 

1.  Interpretation  of  pleadings, 
Bcnerally.  —  Construing  the  pleadings 
most  strongly  against  the  pleader,  the  court 
presumes  where  plaintiil  sues  for  damages 
on  account  of  injuries  causing  tiie  death  of 
his  minor  son  while  in  defendant's  employ- 
ment that  the  employment  was  with  his 
consent,  the  contrary  not  being  averred,  and 
that  the  minor  was  over  fourteen  years  of 
age.  Loa'cll  v.  DcBardelahcn  C.  iS«»  /.  Co.,  90 
Ala.  13,  7  So.  Rep.  756. 

After  an  infant  has  attained  the  age  o' 
fourteen  years  the  presumption  is  induigcH 
that  he  is  capable  of  exercising  judgment 
and  discretion,  but  before  that  age  the 
contrary   presumption   prevaiLs.    Lovell  v. 


984 


PLEADING,  2-6. 


t'  \ 


-^;5i 


DeBardelaben  C.  fi*  /.  Co.,  90  A/a.  13,  7  So. 
■AV/.  756. 

2.  Facts,  not  conclusions  ol'  law, 
must  be  stated.  —  Defendant  company 
was  sued  as  the  guarantor  of  tlie  bonds  of 
xitiother  company,  and  the  complaint  alleged 
the  makhig  of  the  guaranty  for  value  re- 
ceived by  authority  of  the  board  of  direc- 
tors, and  that  the  company  lad  authority 
to  do  so.  The  company  demurred  on  the 
ground  that  the  averment  as  to  the  author- 
ity to  make  the  guaranty  was  only  a  con- 
clusion of  law,  and  therefore  that  the  com- 
plaint showed  that  the  guaranty  was  u/ira 
vires.  Held,  that  the  demurrer  was  not 
well  taken.  Bryce  v.  Louisville,  N.  A.  Sf 
C.  A'.  Co.,  25  A',   y.  Siipp.  1043.  73  Hun  233. 

3.  Form  of  allegations.*— When  it  is 
alleged  that  it  is  the  duty  of  a  corporation 
to  do,  or  not  to  do,  a  given  thing,  it  is 
necessarily  implied  therefrom  that  the  cor- 
poration knew  that  it  was  its  duty  to  do,  or 
not  to  do,  the  thing.  Chicago  &•  E.  I,  R. 
Co.  V.  Hines,  132  ///.  161, 23  A^.  E.  Rep.  1021; 
affirming  33  ///.  App.  271, 

When  an  enumeration  of  particulars 
would  lead  to  great  prolixity  in  pleading,  a 
general  statement  is  sufficient.  Smith  v. 
Boston,  C.  &*  Af.  R.  Co.,  36  yV.  H.  458. 

Where  the  only  averment  directly  aflect- 
ing  the  question  of  negligence  is  that  a 
person  has  acted  negligently,  or  the  oppo- 
site, the  averment  must  be  regarded  as  one 
of  fact,  and  effect  given  to  it  accordingly. 

Washburn  v.  Chicago  &>  X.  IV.  R.  Co.,  68 

Wis.  474.  32  ^^^  IV.  Rep.  234. 

4.  How  statutes  should  be  plead- 
ed.— In  suing  at  common  law,  in  any  case 
where  the  provisions  of  a  public  statute  are 
applicable  as  a  general  rule,  it  is  not  neces- 
sary to  set  them  forth  or  refer  to  them,  as 
the  court  will  take  judicial  notice  of  them. 
Tlicre  IS  an  exception  to  this  rule  in  cases 
where  tiie  remedy  given  by  the  statute  is 
cunvulative  and  differs  from  that  given  by 
the  common  law.  In  such  case,  if  the  relief 
given  by  the  statute  is  sought,  the  pleader 
must  manifest  that  purpose  or  intent  by  apt 
words  of  reference  to  the  statute.  Chicago 
iS-  A.  R.  Co.  v.  Dillon,  32  Am.  Gf  Eng.  R. 
Cas.  I.  123  ///.  570,  15  A'.  E.  Rep.  181,  13 
IVest.  Rep.  286 ;  affirming  24  ///.  App.  203. 

One  desiring  lo  avail  himself  of  the  pro- 
fisions  of  a  public  statute  is  required  only 

•  Pleading  as  to  duty  of  fencing,  see  note,  19 
Am.  &  Eno.  R.  Cas.  580. 


to  state  facts  which  bring  his  case  clearly 
within  its  provisions.  Emerson  \.  St.  Louis 
&•  H.  R.  Co.,  in  Mo.  161,  19  S.  W.  Rep. 
1113. 

Where  a  statute  of  another  state  consti- 
tutes a  part  of  the  organization  of  a  cor- 
poration suing  in  Indiana,  it  is  not  necessary 
to  its  introduction  in  evidence  by  the  plain- 
tiff that  it  should  have  been  pleaded.  Paine 
V.  Lake  Erie  <S-  L.  R.  Co.,  31  Ind.  283. 

Where  plaintiff's  right  of  action  is  based 
upon  a  foreign  statute,  it  is  sufficient  to  al- 
lege that  the  provisions  of  the  statute  have 
been  complied  with  without  setting  out  spe- 
cifically the  various  steps  going  to  make  up 
the  compliance.  Rothschild  v.  Rio  Grande 
Western  R.  Co.,  45  A^.  Y.  S.  R.  809.  63 
Hun  632,  18  A^.  ]'.  Supp.  548. 

An  administrator  tirought  an  action  in 
Rhode  Island  against  a  railroad  company 
for  personal  injuries  to  his  intestate  caused 
by  the  company  in  Massachusetts  and  re- 
sulting in  death.  The  declaration  was  de- 
murred to  because  it  contained  no  allegation 
that  the  cause  of  action  survived  in  Massa- 
chusetts. Held,  that  the  demurrer  should 
be  sustained.  O'Reilly  v.  New  York  &•  N. 
E.  R.  Co.,  42  Am.  &*  Eng.  R,  Cas.  50,  16 
R.  /.  388,  29  Cent.  L.  J.  210,  6  L.  R.  A.  719, 
17  Atl.  Rep.  906. 

In  an  action  founded  on  the  N.  J.  statute 
entitled  "An  act  to  lease  certain  lai\ds  of 
the  state  to  the  Newark  &  New  York  Rail- 
road Company,  and  to  enlarge  the  powers  of 
said  company,"  an  averment  that  defend- 
ants accepted  the  act  necessarily  implies 
that  they  accepted  and  agreed  to  the  pro- 
visions of  the  lease  embodied  in  the  act, 
and  IS  sufficient,  without  showing  the  par- 
ticular facts  relied  on  to  prove  the  accept- 
ance. State  v.  Newark  Sf  N.  Y.  R.  Co.,  34 
A'.  /.  L.  301, 

Plaintiff"  sued  for  a  personal  injury  at  a 
crossing  in  another  state,  where  a  statute 
required  railroad  companies  to  give  a  train 
signal  on  approaching  highway  crossings; 
but  the  complaint  made  no  mention  of  the 
statute.  Held,  that  it  was  competent  to 
prove  the  statute,  because  it  was  some  evi- 
dence bearing  on  the  question  of  negligence. 
Van  Raden  v.  Neiv  York,  N.  H.  <S-  H.  R. 
Co.,  56  Hun  96.  30  A^.  Y.  S.  R.  loo,  8  A^. 
V.  Supp.  914.— Applying  Arcl..  .  v.  New 
York,  N.  H.  &  H.  R.  Co.,  106  N.  Y.  589. 

5.  What  need  not  be  pleaded.  —  It 
is  not  a  subject  to  be  pleaded  and  proved 
whether  a  box  car,  or  other  particular  ob- 


PLEADING,  6,  7. 


985 


ject,  is  naturally  calculated  to  frigliten 
horses,  but  tliis  is  to  be  determined  by  the 
experience,  ubservation,  and  intelligence  ti 
the  court  and  jury  as  applied  to  the  facts 
of  the  case  before  them.  Cleveland,  C,  C. 
6-  /.  A'.  Co.  V.  IVynaut.  35  Am.  <S«»  Eng.  R. 
Cas.  328,  114  Intl.  525,  14  West.  Rep.  512, 
\T  N.E.  Rep.  118. 

O.  Exhibits.  —  Exhibits  attached  to  a 
complaint  consisting  of  copies  of  writings 
wliich  are  not  the  foundation  of  the  action 
form  no  part  of  the  complaint,  and  cannot 
be  looked  to  by  the  court  in  determining 
its  sufficiency.    Wilkinsonv.  Peru.dx  Ind.  i. 

Where  a  railway  company  agrees  verbally 
to  give  an  injured  employ^  steady  employ- 
ment during  his  life,  if  he  will  execute  a 
written  release  of  all  claims  for  damages 
against  the  company,  the  employe,  in  an  ac- 
tion against  the  company  for  a  breach  of  the 
agreement,  need  not  file  with  his  complaint 
a  copy  of  the  release  as  an  exhibit,  the  action 
being  not  on  the  release,  but  for  breach  of 
contract.  Pennsylvania  Co.  v.  Dolan,  6  Ind, 
App.  109,  32  A^.  E.  Rep.  802. 

2.  Declaration.     Complaint.    Petition. 

7.  Naming:  and  describing  tlie  par- 
ties.*— In  a  suitagainsta  railroad  company 
it  may  be  designated  by  its  corporate  name. 
Ramsay  v.  RichmondSfD.  R.  Ctf.,  91  N.  Car. 
418.— !Following  Stanly  v.  Richmond  & 
D.  R.  Co.,  89  N.  Car.  331. 

A  declaration  in  an  action  for  a  personal 
injury,  after  stating  that  defendant  was  the 
owner  of  a  certain  railroad,  running  through 
certain  towns,  and  of  certain  cars  for  the 
conveyance  of  passengers,  averred  that,  on 
the  day  specified,  defendant  was  the  owner 
of,  and  was  running  nnd  propelling  upon 
said  road,  a  certain  train  of  passenger  cars, 
for  a  certain  reasonable  reward  paid  to  de- 
fendant. Held,  that  it  sufficiently  appeared 
that  defendant  was  a  common  carrier.  Ful- 
ler V.  Naugatuck  R.  Co.,  21  Conn.  557. 

In  such  case  it  was  not  necessary  to  allege 
tliat  defendant  had  power  by  its  charter  to 
become  a  common  carrier ;  for  being  en- 
gaged in  this  business,  and  having  in  its 
pursuit  made  a  contract  pertaining  to  it,  it 
ought  not  to  be  allowed  to  say  to  the  con- 
tracting party  that  it  had  no  power  to  do 


*  Misnomers.  Pleadings  and  writs  contain- 
ing "  railroad  "  for  "  railway,"  see  note,  50  Am. 
&  Eng.  R.  Cas.  618. 


so.     Fuller  v.  Natigatuck  R.  Co.,  21  Conn. 

557- 

Where  suit  is  brought  against  the  Mont- 
gomery &  West  Point  R.  Co.  by  name, 
the  addition  of  the  words  "  otherwise 
called  the  Western  R.  Co."  is  mere  sur- 
plusage. Montgomery  &*  W.  P.  R.  Co.  v. 
Boring,  51  Ga.  582. 

A  complaint  under  Ind.  Rev.  St.  1881, 
§4025,  against  a  railroad  company  for  kill- 
ing stock  which  avers  that  the  act  was  done 
by  "  the  defendant,  or  some  lessee  thereof, 
or  other  person  unknown  to  the  plaintifT,"  is 
bad  on  demurrer.  Wabas/i,  St.  L.  &•  P.  R. 
Co.  v.  Rooker,  15  Am.  &  Eng.  R.  Cas.  558,  90 
Ind.  581. 

All  corporations  operating  railroads  in 
Indiana  are  made  common  carriers  by  stat- 
ute. An  averment  that  a  corporation  is 
engaged  in  operating  a  line  of  railroad  is 
equivalent  to  an  averment  that  it  is  a  com- 
mon carrier.  Pennsylvania  Co.  v.  Clark, 
2  Ind.  App.  146,  27  A^.  E.  Rep.  586. 

A  demurrer  to  a  declaration  in  an  action 
for  breach  of  contract  will  be  sustained 
when  the  contract  declared  upon  is  a  con- 
tract between  plaintifT  and  a  third  party,  and 
there  is  no  averment  showing  the  relation 
of  defendant  to  that  party,  nor  to  the  con- 
tract. Melville  v.  Baltimore  &*  P.  R.  Co.,  2 
Mackey  {D.  C.)  63. 

Where  several  common  carriers,  each  hav- 
ing its  own  line,  associate  and  form  what,  to 
the  shipper,  is  a  continuous  line,  and  con- 
tract to  carry  goods  through  for  an  agreed 
price,  which  the  shipper  pays  in  one  sum, 
and  which  the  carriers  divide  among  them- 
selves, then  they  are  jointly  and  severally 
liable  to  the  shipper  with  whom  they  have 
contracted  for  a  loss  taking  place  on  any 
part  of  the  whole.line,  and  the  word  "  part- 
ners," or  any  particular  word  to  describe 
the  relation  existing  between  the  carriers, 
need  not  be  used  in  the  petition.  IVyman 
V.  Chicago  &^  A.  R.  Co.,  4  AIo.  App.  35. 

A  reference  to  its  charter  in  the  com- 
plaint of  a  corporation  plaintiff  does  not  so 
incorporate  the  charter  into  the  complaint 
as  to  render  the  statement  of  its  right  to  sue 
defective  by  reason  of  the  failure  to  allej^e 
the  performance  of  conditions  precedent  to 
its  corporate  existence.  Cheraw  &^  C.  R. 
Co.  V.  White,  14  So.  Car.  51. 

In  a  suit  against  a  railway  company  for 
damages  caused  at  a  period  subsequent  to 
its  purchase  by  another  company,  it  was 
alleged  that  the  latter  company  "  have  or 


986 


PLEADING,  8,9. 


u 


ht'. 


S    ' 


claim  to  have  purchased  "  the  property  and 
franchises  of  tlic  former.  //M,  on  general 
demurrer,  that  the  reasonable  intendment 
from  the  language  used  was  that  the  pleader 
intended  to  exclude  the  idea  that  any  such 
sale  as  the  statutes  contemplate,  which 
would  have  absolved  the  f(jrmer  road  from 
its  obligations  to  the  public,  had  taken  place. 
Central  &•  M.  R.  Co.  v.  Morris,  28  Am.  &* 
Eng.  R.  Cas.  50,  68  Tex.  49,  3  S.  If.  Rep. 
457.— Followed  in  East  Line  &  R.  R.  R. 
Co.  V.  Lee,  71  Tex.  538.  9  S.  W.  Rep.  604. 

A  description  of  the  defendant  as  the 
Missouri  Pacific  R.  Co.,  giving  the  name  of 
the  president  of  the  company,  does  not  raise 
the  presumption  that  the  company  is  incor- 
porated, and  is  an  insufficient  description 
when  specially  excepted  to.  Missouri  Pac. 
R.  Co.  v.  Douglass,  16  Am.  &*  Eng,  R.  Cas. 
98,  2  Tex.  App.  (Civ.  Cas.)  32. 

8.  Layiiigr  the  vciiue.'*'— In  an  action 
against  a  railroad  company  on  a  contract, 
instituted  in  a  county  other  than  the  one 
where  its  cnief  office  is  located,  the  pleadings 
should  show  that  the  contract  was  either 
made  or  was  to  be  performed  in  the  county 
where  such  suit  is  brought  (Ga.  Code, 
§  3406).  Cor  ley  v.  Georgia  R.  &*  B.  Co.,  49 
Ga.  626. 

In  actions  for  personal  injuries,  the  venue 
laid  in  the  declaration  need  not  be  proved 
unless  the  jurisdiction  has  been  properly 
denied  by  plea.  Central  R.  <S-»  B.  Co.  v. 
Gamble,  TJ  Ga.  584,  3  S.  E.  Rep.  287. 

Ohio  Rev.  St.  §  5027,  prescribing  the 
counties  in  which  a  railroad  may  be  sued, 
relates  solely  to  the  jurisdiction  of  the  per- 
son, and  it  is  not  necessary  that  the  petition 
should  state  that  the  road  passes  into  or 
through  the  county  where  the  action  is 
brought.  A  railroad  company,  like  a  nat- 
ural person,  submits  itself  to  the  jurisdiction 
of  the  court  by  appearing  for  any  other 
purpose  than  to  object  to  such  jurisdiction. 
0/iio  Southern  R.  Co.  v.  Morey,  43  Am.  &• 
Eng.  R.  Cas.  97,.  47  Ohio  St.  207.  7  L.  R.  A. 
701,  24  A^.  E.  Rep.  269. 

O.  Avcrineiit  of  corporate  exist- 
eiic<?. — ( I )  In  federal  courts.  — Where  a  su  it 
is  brought  in  a  federal  court  for  Pennsylvania, 
in  which  plaintiff  is  described  as  a  citizen  of 
France,  against  a  railroad  company,  without 
any  averment  that  it  is  a  corporation  under 


•  Where  venue  may  be  laid  in  suits  against 
corporations  in  st;ile  courts,  see  note,  57  .'\M.  & 
Eng.  R.  Cas  ()6. 


the  laws  of  Pennsylvania,  or  that  its  place 

of  business  is  there,  or  that  its  corporators, 
managers,  or  directors  are  citizens  of  Penn- 
sylvania, the  court  has  not  jurisdiction. 
Piquignot  v.  Pennsylvania  R.  Co.,  16  How. 
(U.  S.)  104. 

An  averment  that  a  corporation  is  a  body 
politic  under  the  laws  of  another  state,  and 
doing  business  there,  is  a  sufficient  averment 
of  the  corporate  existence  abroad,  so  far  as 
jurisdiction  is  concerned.  Pennsylvania  v. 
Quicksilver  Min.  Co.,  10  Wall.  {U.  S.)  553. 
—Applied  in  New  York  St.  N.  E.  R.  Co.  v. 
Hyde,  56  Fed.  Rep.  188.  Quoted  in  Dins- 
more  ta  Philadelphia*  R.  R.  Co.,  11  Phila. 
(Pa.)  483- 

(2)  In  state  courts. — In  an  action  by  a 
corporation,  the  declaration,  need  not  spe- 
cially allege  a  compliance  with  every  par- 
ticular circumstance  relating  to  its  organi- 
zation, which  is  required  in  order  to  its 
becoming  invested  with  the  privileges  and 
powers  conferred  by  its  charter.  Although 
it  may  be  necessary  to  prove  these  matters 
specially,  the  allegation  may  be  more  gen- 
eral. Selma  &•  T.  K.  Co.  v.  Tipton,  5  Ala. 
787. 

An  averment  of  defendant's  corporate 
existence  is  necessary  in  every  count  of  a 
complaint  against  a  corporation.  People  v. 
Central  Pac.  R.  Ci?.,  41  Am.  &*  Eng.  R.  Cas. 
653,  83  Cal.  393,  23  Pac.  Rep.  303. 

California  general  incorporation  act  of 
1862.  providing  that  the  due  incorporation 
of  a  company,  "  claiming  in  good  faith  to  be 
a  corporation,"  shall  not  be  inquired  into 
collaterally  in  private  suits,  does  not  prevent 
a  private  person  from  denying  the  existence 
dejure  or  de  facto  of  an  alleged  corporation. 
Where  the  corporatioti  sues,  it  is  an  indis- 
pensable allegation  that  plaintiff  is  a  corpo- 
ration, and  the  opposite  party  may  deny  the 
allegation.  Oroville  <S-  V.  R.  Co.  v.  Plumas 
County  Sup'rs,  yj  Cal.  354. 

The  designation  of  the  defendant  in  the 
complaint  as  "  The  Cincinnati,  Hamilton 
and  Indianapolis  Railroad  Company  "  suffi- 
ciently indicates  that  the  defendant  is  a 
corporation.  Cincinnati,  H.  &»  I.  R.  Co.  v. 
McDougall,  108  Ind.  179,  8  N.  E.  Rep,  571. 
O' Donald  v.  Evansville,  I.  &^  C.  S.  L.  R.  Co., 
14  Ind.  259.  Root  v.  Illinois  C.  R.  Co.,  29 
Io7i'a  102.  Adams  Exp.  Co.  v.  Harris,  40 
Am.  &*  Eng.  R.  Cas.  151, 120  Ind.  73,  21  yV. 
E.  Rep.  340. 

A  corporation  may  sue  m  its  corporate 
name    without   averring    in    the   complaint 


PLEADING,  lO. 


987 


at  its  place 

rorporators, 
MS  of  F^cnn- 
urisdiction. 
1 6  How. 

m  is  a  body 
r  state,  and 
It  averment 
d,  so  far  as 
'sjrlvania  v. 

(^.^•.)S53. 
I.  R.  Co.  V. 

m  IN  Dins- 

I.,  II  Phila. 

iction   by  a 
:d  not  spe- 
every  par- 
its  organi- 
rder  to  its 
I'iieges  and 
Although 
se  matters 
more  gcn- 
'>ton,  5  Ala. 

corporate 
count  of  a 

People  V. 
■tiff.  A'.  Las. 

ion  act  of 
:orporation 
I  faith  to  be 
juired  into 
lot  prevent 
e  existence 
^rporation. 
is  an  indls- 
is  a  corpo- 
ly  deny  the 
V.  Plumas 

ant  in  the 
Hamilton 
iny  "  siitfi. 
idant  is  a 
^  A',  Co.  V. 

•  ■'>'<'/•  571. 
.  L.  A'.  Co.. 
A\  Co.,  29 
Harris,  ^o 
■  73.  21  JV. 

corporate 
complaint 


how  it  became  a  corporation  or  that  it  is 
such;  and  a  default,  or  answer  in  denial  of 
the  complaint,  admits  the  capacity  of  plain- 
tiff to  sue.  //fas/on  v.  Cincinnati  &*  Ft. 
W.  R.  Co.,  16  Ind.  275. 

An  allegation  tiiat  tiie  plaintiff  is  a  corpo- 
ration duly  organized  and  engaged  in  build- 
ing a  railroad  implies  that  it  has  assumed 
the  responsibilities  of  a  commo*:  arrier. 
Chicat^o,  N.  &'  S.  W.  R.  Co.  v.  I^twton,  36 
lo'Vii  299. 

A  claim  a  defendant  corporation  is  es- 
topped by  its  acts  and  course  of  dealing  to 
deny  its  corporate  capacity  must  be  spe- 
ciMllv  pleaded.  Folsom  v.  Star  U.  L.  F. 
Freight  Line,  54  Iowa  490,  6  N.  W.  Rep. 
702. 

An  action  which  is  based  solely  on  the 
failure  to  meet  the  requirements  of  the  or- 
dinances of  an  incorporated  city,  but  which 
omits  to  plead  or  aver  anything  whatever  as 
to  the  charter  of  said  city,  unless  the  char- 
ter is  declared  to  be  a  public  act,  cannot  be 
maintained.  Wisdom  v.  Wabash,  St.  L.  &* 
/'.  R.  Co.,  19  Mo.  App.  324.— Reviewed  in 
O'Brien  v.  Wabash,  St.  L.  &  P.  R.  Co.,  21 
.Mo.  App.  12. 

In  actions  for  torts  by  incorporated  com- 
panies, the  correct  mode  of  pleading  is  to 
show  a  case  in  the  declaration  to  all  appear- 
ances standing  aloof  from  the  statutory 
right  of  the  company  ;  but  if  a  color  of  right 
to  do  the  act  in  question  is  shown  in  the 
company,  then  the  abuse  of  such  right 
must  be  laid.  Stephens  &*  C.  Transp.  Co. 
V.  Central  R.  Co.,  33  N.  J.  L.  229. 

Wliere  defendant  is  sued  as  a  corpora- 
tion, the  complaint  must  state  whether  it  is 
a  foreign  or  domestic  corporation,  and  if 
foreign,  the  state  or  country  of  its  creation 
must  be  given ;  otherwise  it  is  demurrable. 
Chandler  v.  Erie  Transfer  Co.,  19  Civ.  Pro. 
385.  II  N.  Y.Supp.  573. 

Where  a  complaint  alleges  corporate  ex- 
istence in  plaintiff,  and  .lo  facts  or  circum- 
stances appear  on  the  face  of  the  complaint 
showing  a  want  of  corpoiate  existence  or 
of  capacity  to  sue,  a  demurrer  is  properly 
overruled.  C/teraw  <S>»  C.  A'.  Co.  v.  White, 
14  So.  Car.  51.-  -FoLLOWKU  in  Cheraw  & 
C.  R.  Co.  7>.  Garland,  14  So.  Car.  63. 

The  almost  universal  practice  in  suits 
against  railway  companies  is  to  allege  the 
corporate  capacity  of  the  defendant.  It 
would  seem  that  if  the  provision  of  the 
statutes  on  the  subject  does  not  positively 
require  such  allcfji'i'Mi  jt  CMinoinpliite- suiii 


mode  of  procedure.    Galveston,  H.  &*  S.  A. 
R.  Co.  V.  Smith,  81  Tex.  479,  17  5.  W.  Rep. 

»33. 

Under  the  Texas  statutes  which  declare 
that  m  pleading  the  charter  or  act  of  incor- 
poration of  a  railroad  company  it  shall  be 
sufficient  to  allege  that  such  company  is 
duly  incorporated,  an  allegation  in  a  peti- 
tion tliat  plaintiff  is  "a  body  duly  and 
legally  incorporated  by  and  under  the  law 
of  the  state  of  Texas  "  is  sufficient.  Texas 
&*  P.  R.  Co.  V.  ririflHia  R.,  L.  &*  C,  Co., 
(  Tex.)  35  Am.  <&-  Eng.  R.  Cas.  201,  7  S.  W. 
Rep.  341. 

A  corporation  should  sue  and  be  sued  by 
its  true  name,  and  if  it  is  sued  by  its  true 
name  it  \.j  not  necessary  to  show  in  the 
declaration  how  it  was  incorporated,  or  to 
aver  in  the  declaration  that  it  is  a  corpora- 
tion duly  constituted,  or  that  it  is  authorized 
by  law  to  sue  or  be  sued  in  its  corporate 
name ;  but  these  questions  may  he  put  in 
issue  by  defendant,  or  raised  upon  the  trial 
of  the  general  issue.  Hart  v.  Baltimore  6* 
0.  R.  Co.,  6  W.  Va.  336.— Explained  in 
Central  Land  Qo.v.  Calhoun,  16  W.  Va.  361. 

10.  Alltiijutiou  of  cuiiHolidutioii. — 
A  petition  by  a  consolidated  company 
against  a  county  to  compel  a  delivery  of 
bonds  for  stock  subscribed  by  one  of  the 
companies  before  consolidation  is  sufficient 
on  demurrer  to  enable  the  court  to  decide 
on  the  legality  of  the  consolidation,  where 
it  avers  the  consolidation,  whereby  the  pe- 
titioner succeeded  to  all  the  rights,  fran- 
chises, and  property  of  the  former  company, 
the  legal  intendment  'leing  that  the  con- 
solidation was  lawful.  Macoupin  County 
Court  V.  People  ex  rel.,  58  ///.  191. 

An  averment  that  by  various  transfers 
defendant  has  succeeded  to  all  the  rights, 
privileges,  and  immunities  of,  and  become 
subject  to  the  same  penalties  as,  the  North 
Missouri  R.  Co.  is  a  sufficient  averment 
that  defendant  is  the  successor  of  that  com- 
pany. Roberts  v.  Wabash,  St.  L.  (S-»  /'.  A'. 
Co.,  (Mo.)  25  Am.  &•  Eng.  R.  Cas.  298,  3 
West.  Rep.  783. 

An  allegation  that  defendant,  as  such 
successor,  is  bound  by  a  certain  act,  as  a 
part  of  the  charter  of  said  company,  neces- 
sarily implies  that  everything  necessary  to 
make  said  act  a  part  of  said  charter  has 
been  done.  Things  which  are  necessarily 
implied  need  not  be  alleged.  Roberts  v. 
Wahasli,  St.  L.  &^  P.  R.  Co.,  [Mo)  25  Am. 
&-■   Eiii;.  a:  Cas.  298.  3  Wist.  Rep.  783. 


U,     'V 


PLEADING,  11,12. 


i'''. 


I!1>|» 


|5r 


1, 

Acts  authorizing  consolidation  of  defend- 
ant corpoiaticjns  nocfi  not  lie  specifically 
alleged  in  tlie  comi>laint.  Proiily  v.  Lixke 
Shore  C"  M.  S.  A".  Co.,  6  ////«  (-V.  )'.)  246; 
ixppiiil  dismissed  (?)  64  yV.   V.  641.  mem. 

An  averment  that  certain  corporations 
by  autliority  of  law  consolidated  and  bc- 
Ciime  a  new  corporation  under  a  stated 
iiiime  is  suiricicnt  as  to  the  consolidation 
wiiiiout  showing  the  various  ste|)S  taken  to 
efTect  the  consolidation.  Collins  v.  Chiciigo, 
St.  I'.Gr*  /•'.  (ill  L.  R.  Co.,  14  Wis.  492. 

11.  Avoriiii^iit  of  <liv(;rso  citlz«ii> 
Mliip  to  t?ivc  IVdcral  courts  jiiriMlic- 
tioii.— A  cori)oratinii  is  not,  strictly  speait- 
inj,',  a  citizen,  and  therefore  to  sustain  a  suit 
l)y  or  ajjainst  a  corporation  in  the  federal 
courts  it  is  reRardcd  as  a  suit  by  or  ajjainst 
the  stockholders,  and  for  jurisdictional  pur- 
poses it  is  conclusively  presumed  that  the 
stockholders  are  citizens  of  the  state  under 
whose  laws  the  corporation  was  created. 
LoHcrgan  v.  Illinois  C.  R.  Co.,  55  Fed.  Rep. 
550.  I'risbie  v.  Chesapeake  &*  O.  R.  Co.,  57 
Fed.  Rep.  i.— Following  Southern  Pac. 
Co.  V.  Denton,  146  U.  S.  202,  13  Sup.  Ct. 
Rep.  44. 

For  the  purpose  of  federal  jurisdiction  it 
is  not  sufficient  merely  to  allege  that  a 
defendant  corporation  is  a  citizen  of  a  cer- 
tain state.  It  must  be  averred  that  the 
corporation  was  croated  under  the  laws  of 
the  state  named.  Lonergan  v.  Illinois  C. 
R.  Co.,  55  Fed.  Rep.  550.  —  FOLLOWING 
Lafayette  Ins.  Co.  v.  French,  18  How,  (U. 
S.)  404 ;  MuUer  v.  Dows,  94  U.  S.  444. 

An  averment  in  a  complaint  that  the  de- 
fendant corporation  is  duly  established  by 
law  and  has  its  principal  place  of  business 
in  a  certain  city  and  state  is  not  sufficient 
to  }i;ive  a  federal  court  jurisdiction  on  ac- 
count of  diverse  citizenship.  It  must  be 
shown  under  what  liiw  the  corporation  was 
esl.iblished.  A'cw  ]'orl:  &*  A'.  F.  R,  Co.  v. 
Hyde,  56  Fed.  Rep.  188.— APPLYING  Penn- 
sylvania V.  Quicksilver  Min.  Co.,  10  Wall. 
(U.  S.)  553;  Southern  Pac.  R.  Co.  7).  Den- 
ton, 146  U.  S.  202,  13  Sup.  Ct.  Rep.  44 ; 
Wolfe  V.  Hartford  L.  &  A.  Ins.  Co.,  148  U. 
S.  389,  13  Sup.  Ct.  Rep.  602. 

Wliere  a  citizen  of  one  state  sues  a  corpo- 
ration, an  averment  that  it  is  a  corporation 
operating  a  railroad  in  another  state  and 
having  an  agent  there  is  not  sufficient  to 
give  a  federal  court  jurisdiction  on  account 
of  citizenship.     St.  Louis,  I.  M.  &•  S,  R. 


Co.  V.  Newcom,  56  Fed.  Rep.  951,  6  C.  C.  A, 
172,  12  U.  S.  App.  503. 

Such  an  averment  is  not  sufficient  to  war- 
rant the  inference  that  the  corporation  was 
organized  in  the  state  where  it  is  alleged  as 
doing  business  simply  because  there  is  a 
state  law  regulating  foreign  corporations, 
which  does  not  amount  to  incorporation 
when  compiled  with.  Tlie  averment  of  in- 
corporation must  be  direct,  not  argunenta- 
tive.  St.  Louis,  I.  Af.  &*  S,  R,  Co.  v.  .Veit'coni, 
56  /■(•(/.  ViV/.  951,6  C,  C.  A.  172,  12  U.  S. 
App.  503. 

12.  Mtiiteiiiviit  of  oauMc  of  action, 
K^'iivrally.  —  A  complaint  which  slates 
facts  constituting  a  cause  of  action  of  either 
a  legal  or  an  e(|uiiable  nature  is  not  de- 
murrable because  framed  with  a  view  to 
relief  of  another  kind  than  that  to  which 
the  facts  show  the  plaintiff  to  be  entitled. 
Canty  V.  Latterner,  1 5  Am.  <S-  Fng.  R.  Cas. 
380,  31  Minn.  239.  17  A'.  W.  Rep.  385. 

In  an  action  against  a  carrier  for  failing 
to  carry  goods,  it  is  no  defense  that  plaintifl 
engaged  to  procure  insurance  on  the  goods 
carried,  and  failed  so  to  do.  Nor  is  it  nec- 
essary, in  declaring  against  the  carrier,  to 
set  forth  such  engagement,  nor  to  allege 
that  it  has  been  fulfilled,  nor  to  aver  an 
excuse  for  non-fulfillment.  Brenan  v.  Shel- 
ton,  2  Bailey  {So.  Car.)  1 52. 

A  complaint  in  ejectment  against  a  rail- 
road company  incorporated  under  the  laws 
of  the  state  which  shows  that  plaintifl  has 
been  the  owner  of  the  land  sought  to  be 
recovered  for  more  than  twenty-five  years, 
during  all  of  which  time  defendant  has  held 
adverse  possession,  is  bad  on  demurrer  as 
showing  a  cause  barred  by  the  statute  of 
limitations.  Sherlock  v.  Louisville,  N.  A. 
<S-  C.  R.  Co.,  115  Ind.  22,  14  West.  Rep. 
843,  17  N.  F.  Rep.  171.— Distinguishing 
Cox  V.  Louisville,  N.  A.  &  C.  R.  Co.,  48  Ind. 
178. 

A  summary  petition  for  interdict  was  pre- 
sented against  a  railway  company  for  alleged 
contravention  of  the  Railway  Clauses  Con- 
solidation Act  1845,  §  83,  which  was  alleged 
also  to  be  a  contravention  of  the  Railway 
and  Canal  Traffic  Act  1854,  §  2.  The  latter 
act  alone  provided  a  summary  remedy. 
Held,  that  the  statement  in  the  petition 
that  the  thing  complained  of  had  been 
done  in  contravention  of  the  express  pro- 
hibition contained  in  said  section  83,  as  well 
as  in  contravention  of  the  Railway  Traffic 


PLEADING,  13,  14. 


989 


Act,  did  not  make  the  petition  Incoinpe- 
tctil  Uosie  V.  Edinhuri^h  &^  G.  A'.  Co.,  19 
Sc.  Sess.  Cas.  2d  Set.  65,  2  A/.  &»  C.  T.  Las, 

\\\.    111  (U'tioiiM  on   contracts, 

jtctU'l'ally.— PlaiiUid  sued  dcfundanl  com- 
));m>  for  commissions  on  materi.'l  |)ur- 
cli.iscd  to  l)t;  used  in  constructing  its  road, 
not  claiiniMg  any  contract  with  defendant, 
hut  basing  iiis  claim  upon  a  contract  with 
.mother  road  whicii  liad  consolidated  with 
defendant ;  but  tlic  special  contract  was  not 
declared  yn,  neither  was  there  any  count  on 
a  (/Kiintum  meruit.  Held,  in  the  absence  of 
any  previous  existing  authority  or  a  subse- 
quent ratification  of  his  services,  that  a 
jud^'ment  for  plaintiff  could  not  be  sus- 
tained. Louisville,  N,  A,  &*  C.  A'.  Co.  v. 
C/urn,\  18  ///.  A/>p.  646. 

Plaintifi  sued  two  railroad  companies 
jointly  for  a  breach  oi  contract,  and  set  out 
in  his  complaint  that  he  made  a  conveyance 
of  a  right  of  way  to  the  first  company  in 
consideration  that  it  would  build  a  side 
track,  depot,  and  other  station  buildings  on 
his  land,  and  furnish  him  hedge  plants  to 
fence  the  railroad ;  that  the  second  com- 
pany afterwards  took  a  lease  of  the  road 
for  ninety-nine  years,  and  entered  upon  it, 
agreeing  to  assume  and  discharge  all  the 
obligations  of  the  first  company,  which  it 
had  failed  to  do,  charging  specially  a  brcich 
of  the  conditions  upon  which  the  right  of 
way  was  conveyed.  Held,  sufficient  to  con- 
stitute a  cause  of  action  against  the  second 
or  lessee  company,  Kansas  Pac.  K.  Co.  v. 
Hopkins,  18  Kan.  494,  15  Atn.  hy.  Rep.  287. 

Plaintiflf  sued  defendant  company  for  not 
maintaining  an  opening  on  a  twenty-foot 
strip  of  land  opposite  a  hotel  for  convenient 
access  to  and  from  the  premises,  as  by  a 
deed  of  conveyance  it  was  bound  to  do. 
The  complaint  alleged  that  plaintiff's  dam- 
ages were  caused  by  the  defendant  main- 
taining a  fence  along  the  twenty-foot  strip. 
Hild,  that  this  could  not  prevent  his  recov- 
ering, where  the  opening  that  the  company 
should  have  maintained  was  within  the 
greater  distance  alleged.  Avery  v.  Neiu 
York  C.  &*  H.  R.  R.,Co..  17  N.  V.  S.  R.  392. 
2  A^.  y.  Supp.  109;  reversed  in  121  A^.  Y.  31, 
30  A'.  Y.  S.  R.  471.  24  N.  E.  Rep.  20.— 
Quoting  Avery  v.  New  York  C.  &  H.  R. 
R.  Co..  106  N.  Y.  142,  8  N.  Y.  S.  R.  612. 

A  judgment  creditor  of  a  county  sued  to 
enforce  his  judgment,  alleging  in  his  com- 
plaint that   the    ordinary  revenues  of   the 


county  were  only  sufficient  to  p.ay  current 
expenses,  and  that  the  coi.nty  had  no  prop- 
erty from  which  the  juitgnuiii  could  he  col- 
Iect(;d  except  certain  stock  in  a  railroad  com- 
pany, which  In;  alleged  was  not  necessary 
nor  useful  for  the  cor  porate  purposes  of  the 
county,  and  prayed  that  a  sulficient  amount 
of  it  might  be  condemned  to  pay  Ins  jii'lg- 
ment;  but  he  omitted  to  refer  to  the  private 
statute  which  permitted  the  county  to  sub 
scribe  to  the  stock  of  the  railroad,  /hid, 
that  the  complaint  did  not  state  a  sufficient 
cause  of  action.  Hui^/tes  v.  Craven  County 
Com'rs,  107  A^.  Car.  598,  12  S.  K.  Rep.  465. 

It  is  not  ncccssaiy  to  set  forth  in  the  peti- 
tion the  minute  details  of  a  contract  on 
wliirli  suit  is  brought  to  authorize  its  intro« 
diK  lion  in  evidence.  It  is  sufficient  if  it 
sets  forth  the  contract  according  to  its  true 
and  legal  import  and  ciTect,  as  a  whole. 
Woofers  v.  International  (S»  C  N.  R.  Co. ,  4 
Am.  (S-*  Eng.  R.  Cas.  100,  54  Tex.  294. 

A  railway  company  alleged  the  purchase 
of  a  right  of  way  and  depot  grounds  from 
defendants,  that  they  executed  a  warranty 
deed  therefor  and  the  right  thereto  has 
failed.  Held,  sufficient  to  support  a  judg- 
ment for  damages  for  breach  of  warranty. 
Ackerman  v.  Huff,  36  Am.  <5«»  Kng,  R.  Cas. 
589,  71   rev.  317,  9  S.  JV.  R,p.  236. 

14.  coiitractH  for  work,  ser- 
vices, etc.— A  complaint  in  the  general 
form  for  work  and  labor  done  on  a  railroad 
is  not  demurrable  because  it  sets  out  the 
manner  of  the  employment  and  the  char- 
acter of  the  work  done  with  unnecessary 
particularity,  when  the  facts  stated  do  not 
show  a  special  contract  or  increase  the  lia- 
bility of  defendant  beyond  such  general  em- 
ployment. Ft.  IVayne,  J.  &•  S.  R,  Co.  v. 
McDonald,  48  /nd.  241. 

The  rule  of  pleading  that  a  party  who  has 
fully  performed  a  special  contract  for  work 
and  materials  is  not  bound  to  declare  upon 
the  contract,  but  may  declare  generally  for 
the  value  of  the  work,  and  the  contract  may 
be  referred  to  to  determine  the  value,  has 
not  been  chiinged  by  the  Code.  Higgins  v. 
Ne7vt07tm  &^  F.  R.  Co.,  66  N.  Y.  604;  af- 
firming 3  Hun  611. 

If  a  petition  alleges  that  work  was  done 
at  the  request  of  a  defendant  railway  com- 
pany, it  is  sufficient,  and  need  not  state  evi- 
dence of  the  fact,  averring  the  name  of  the 
agent  or  servant  of  the  company  who  con- 
tracted for  or  directed  the  work.  Texas  &• 
St.  L.  R.  Co.  V.  Ross,  62  Tex.  447. 


»\' 


Wn-  \ 


I 


T-r 


990 


PLEADING,  15,  16. 


r 


Plainttf!,  a  public  weigher,  at  the  request 
of  defendant  company  removed  his  weigh- 
ing apparatus  to  the  platform  of  defendant, 
and  after  occupying  it  for  three  months  de- 
fendant caused  his  weighing  apparatus  to 
be  removed  and  refused  to  permit  him  to 
occupy  the  platform  any  longer.  In  the 
removal  and  m  the  loss  of  his  buildings,  etc., 
consequent  upon  the  removal,  he  alleged 
he  was  injured,  and  his  alleged  damages 
were  itemized.  Held,  that  the  facts  did  not 
show  a  cause  of  action.  Crockett  v.  Galves- 
ton, H.  «&>•  S.  A.  a:  Co.,  8o  7'ex.  292,  16  S. 
W.  Rep.  38. 

15. contracts  for   carriage  of 

good.s  or  passeui^ers.  —  In  an  action 
founded  on  an  express  or  implied  contract 
against  a  carrier  for  negligence  the  declara- 
tion must  correctly  state  the  contract  or 
the  particular  duty  or  consideration  from 
which  the  liability  results  and  on  which  it  is 
based,  and  a  variance  in  the  description  of 
the  contract,  though  in  an  action  ex  delicto, 
may  be  fatal  as  in  an  action  ex  contractu. 
The  declaration  will  be  defective  if  it  fails 
to  show  that  by  express  contract,  or  by  im- 
plication of  law  in  respect  to  defendant's 
particular  character  or  situation,  he  was 
bound  to  do  or  omit  the  act  for  which  he  is 
charged.  Wabash  Western  R.  Co.  v.  Fried- 
man, 146  ///.  583,  30  N.  E.  Rep.  353,  34  N. 
E.Rep.  II II. 

In  a  complaint  upon  a  bill  of  lading  which 
contams,  in  addition  to  the  usual  provi- 
sions,  a  clause  that  the  goods  shall  be  deliv- 
ered on  "presentation  of  duplicate  hereof," 
it  is  unnecessary  to  aver  the  reasons  that 
influenced,  and  purposes  that  controlled, 
the  shippers  or  the  carrier  in  inserting  the 
clause,  and  such  averments  do  not  add  any- 
thing to  the  legal  effect  of  the  bill  of  lading. 
Jeffersonville,  M.  6-  /.  A'.  Co.  v.  Irvin,  46 
Ind.  180. 

Where  a  bill  of  lading  is  pleaded  as  a 
contract  and  set  out  in  extenso  as  part  of 
plaintiff's  petition,  he  is  bound  by  all  the 
provisions  therein  contained.  Tardos  v. 
Chicago,  St.  L.  &*  N.  O,  R.  Co.,  35  La.  Ann. 

»5- 

A  complaint  seeking  to  charge  the  lessee 
of  a  railroad  with  damages  for  refusing  to 
transport  complainant,  to  whom  the  lessor 
had  issued  a  pass  for  life,  did  not  allege  any 
obligation  on  the  part  of  the  lessee  by  con- 
tract or  otherwise  to  carry  complainant 
over  the  road  free.  Held,  bad  on  demurrer, 
and  that  the  judge  below  was  right  in  dis- 


missing it.     Turner  v.  Richmond  &•  D.  R. 
Co.,  70  N.  Car.  i. 

A  photographer  shipped  his  "  outfit  "  by 
rail  and  sued  the  company,  alleging  that  a 
part  of  the  outfit  was  lost  and  never  was 
delivered,  and  that  none  of  it  was  delivered 
with  reasonable  promptness,  by  which  be 
lost  large  profits  that  he  might  have  made 
in  his  business  if  he  had  received  the  outfit 
in  time.  Held,  that  the  complaint  showed 
a  good  cause  of  action  as  to  part  of  the 
damages  at  least,  and  that  a  general  de- 
murrer thereto  was  improperly  sustained 
Galveston,  H.  &-  S.  A.  R.  Co.  v.  Jessee,  J 
Tex.  App.  {Civ.  Cas.)  351. 

Plaintiff,  a  female  passenger,  alleged  in 
her  complaint  that  she  purchased  a  ticket 
of  defendant  company  at  a  certam  station ; 
that  in  consideration  of  such  purchase  the 
company  contracted  to  furnish  her  a  suit- 
able and  customary  place  of  waiting  for  the 
arrival  and  departure  of  the  train  in  a  ladies' 
waiting  room,  but,  on  request,  refused  to 
furnish  her  a  sufficiently  lighted  room,  and 
accompanied  the  refusal  with  grossly  insult- 
ing language.  Held,  that  this  stated  a  cause 
of  action  upon  contract.  Bishop  v.  Chicago 
&-  N.  W.  R.  Co.,  67  Wis.  610.  31  N.  W. 
Rep.  219. 

IG. bonds  and  obligations  for 

payment  of  money.— A  complaint,  fn  an 
action  upon  a  written  obligation  for  the 
payment  of  money,  which  alleges  that  the 
obligation  was  given  by  defendant,  an  elec- 
tric street-railioad  company,  to  repay  plain- 
tiff and  other  property  owners  for  paving 
the  street,  in  consideration  that  plaintiff 
would  not  take  any  steps  to  prevent  the 
electric  company  from  tearing  up  the  pav- 
ing and  laying  its  tracks;  and  which  also 
alleges  facts  showing  that  the  franchise  of 
the  company  is  void,  having  been  granted 
by  the  city  council  without  power,  and  iliat 
plaintiff  and  other  property  owners  could 
and  would  have  prevented  defendant  from 
laying  its  tracks  on  the  street  but  for  the 
promise  to  pay,  shows  a  want  of  considera- 
tion for  the  promise,  and  states  no  cause  of 
action.  Amestoy  v.  Electric  Rapid  Transit 
Co.,  95  Cal.  31 1,  30  Pac.  Rep.  550. 

An  allegation  in  a  petition  that  railroad 
bonds  have  been  "  issued,"  and  that  they 
have  been  "  issued  and  sold,"  is  equivalent 
to  an  allegation  that  they  have  been  nego- 
tiated and  are  in  the  hands  of  third  parties. 
Dunham  v.  Isett,  1 5  Iowa  284. 

An  cmiiloy^  of  a  railroad  company  gave 


PLEADING,  17-10. 


991 


the  usual  bond  conditioned  for  the  faithful 
performance  of  his  duties  and  for  the  ap- 
plication of  funds  coming  to  his  hands  as 
agent.  Held,  that  a  declaration  in  an  action 
upon  the  bond  which  sets  forth  only  the 
obligatory  part  of  the  bond  is  fatally  de- 
fective. Baltimore  <S»  O.  R.  Co.  v.  Bitncr, 
15  W.  Vii.  467. 

17.  III  actions  to  set  asidecoii- 

veyances.— In  a  suit  to  set  aside  a  convey- 
ance to  a  railroad  company  of  twelve  acres 
of  land  the  petition  stated  that  the  consid- 
eration was  the  location  of  a  depot  on  said 
land,  and  that  the  land  was  to  be  used  for 
depot  purposes  alone ;  that  the  grantor  did 
not  know  what  quantity  of  land  was  neces- 
sary for  such  purposes  and  relied  upon  the 
company,  wh  ;h  represented  that  about 
twelve  acres  were  required  ;  that  only  three 
acres  had  been  or  could  be  used  for  that 
purpose,  and  that  the  remaining  nine  acres 
were  not  used  for  any  purpose  except  a 
small  portion  by  other  parties  by  permission 
of  the  company.  Held,  that  the  petition 
was  der.  urrable  on  the  grounds :  (i)  That  it 
contained  no  allegation  that  the  considera- 
tion was  expressed  in  the  deed,  and  none 
that  defendant  or  his  grantors,  purchasers 
from  the  company,  took  with  actual  noti'.:c 
thereof.  (2)  That  it  contained  no  allegation 
that  the  representation  made  was  fraudulent 
or  knowingly  false.  The  allegation  as  made 
shows  nothing  more  than  the  expression  of 
an  opinion.  (3)  It  appeared  that  there  was 
a  right  of  entry  for  condition  broken,  and 
there  was  no  allegation  of  an  entry  or  claim 
of  forfeiture  for  more  than  twenty  years. 
There  was,  therefore,  an  adequate  remedy 
at  law,  and  laches.  (4)  The  only  allegation 
of  connection  betvveen  the  grantor  and 
plaintiff  was  that  "  plaintiffs  are  the  only 
parties  interested  in  said  real  estate  ad- 
versely to  defendant " ;  and  conditions  of  the 
above  character  enure  only  to  the  grantor 
and  his  heirs,  fonts  v.  St.  Louis,  K.  C.  <S- 
N.  A'.  Co.,  20  Am.  S*  Etig.  R.  Cas.  371,  79 
Mo.  92. 

A  complaint  alleged  that  plaintiff  being 
the  owner  of  a  license  to  build  and  operate 
a  street  railway  assigned  it  in  escrow  to 
another,  who,  in  breach  of , the  trust  reposed 
in  hun,  assigned  it  to  defendant  corpora- 
tion, which  is  endeavoring  to  act  under  it, 
and  plaintiff  seeks  to  have  the  assignment 
set  aside  and  defendant  enjoined  from  oper- 
ating the  road.  Held,  that  it  was  error  to 
dismiss  the  action  on  the  ground  that  the 


complaint  did  not  set  out  a  cause  of  action. 
Atkinson  v.  Asheville  St.  R.  Co.,iliN.  Car. 
l%\,i%S.E.  Rep.  254. 

18.  Assigning  breaches.— In  pursu- 
ance of  California  Act  of  April  4,  1864.  "  to 
aid  the  construction  of  the  Central  Pacific 
Railroad  Company,"  the  state  entered  into 
an  agreement  whereby  bonds  were  issued, 
upon  which  the  state  paid  interest  due,  and 
brought  suit  against  the  company  to  recover 
it  back.  The  complaint  alleged  that  the 
state  "  has  duly  performed  all  the  condi- 
tions mentioned  in  said  act  of  the  legisla- 
ture." and  charged  a  breach  on  the  part  of 
the  company.  Held,  that  the  facts  consti- 
tuting the  breach  and  the  amount  of  dam- 
ages sustained  must  be  specifically  alleged. 
People  V.  Central  Pac.  R.  Co.,  76  Cal.  29, 
18  Pac.  Rep.  90. 

A  declaration  upon  a  promise  by  defend- 
ant to  move  a  certain  barn  and  sheds  of 
plaintiff  from  certain  premises  of  plaintiff 
and  put  the  barn  in  good  repair  in  consid- 
eration that  plaintiff  would  convey  to  de- 
fendant a  right  of  way  for  its  railroad  across 
said  premises  which  avers  performance  of 
the  consideration  and  breach  of  the  promise 
is  good  on  general  demurrer.  Detroit,  H. 
&*  I.  R.  Co.  V.  Forbes,  30  Mich.  165. 

The  charter  of  defendant  company  re- 
quired it  to  construct  a  suitable  bridge  over 
any  navigable  water  crossed  "  with  a  pivot 
draw  with  two  openings,  each  seventy-five 
feet  in  width,  at  right  angles  to  the  main 
channel."  Held,  that  an  averment  admit- 
ting that  the  company  constructed  a  bridge 
with  two  openings,  "  yet  they  did  locate 
said  openings  in  said  draw  in  a  manner  not 
at  right  angles  to  the  main  channel,"  did 
not  show  any  breach  of  duty,  inasmuch  as 
the  openings  may  iiave  exceeded  in  width 
those  mentioned  in  the  charter.  Stephens 
6-  C.  Transp.  Co.  v.  Central  R.  Co.,  34  N.  /. 
L.  280.  • 

10.  Averment  of  performance  on 
plaintiff's  part.  —  Where  a  contractor 
sues  to  recover  money  for  work  done  under 
a  contract  which  provides  for  payment-, 
from  time  to  time  upon  estimates  made  by 
an  engineer,  it  must  be  averred  that  such 
estimates  have  been  made.  Loup  v.  Cali- 
fornia Southern  R.  Co.,  1 1  Am.  &»  Eng.  R. 
Cas.  589,  63  Cal.  97. 

A  declaration  alleging  that  defendant  by 
a  written  agreement  was  to  deliver  a  certain 
amount  of  bonds  to  plaintiff  on  or  before  a 
specified  day,  upon  condition  that  plaintiff 


'ii 


1 


992 


PLEADING,  20,  21. 


should  deliver  to  defendant  bonds  for  the 
same  amount  without  also  averring  that 
plainiifT  executed  and  tendered  his  bonds,  is 
bad  on  demurrer  Alexandria  R.  Co.  v.  Na- 
tional Jumiion  R.  Co.,\  MacArth.  (D.C.)  •203. 

A  l)ond  was  executed  by  the  officers  of  a 
railroad  company  as  obligors  to  cer*am  tax- 
payers as  obligees,  reciting  that  the  board 
of  commissioners  of  tlie  county  had  ordered 
a  special  tax  to  aid  in  the  construction  of 
the  company's  railroad,  and  that  one  of 
said  taxpayers,  for  himself  and  the  others, 
had  appealed  from  such  order,  which  would 
occasion  delay  and  injury  to  the  interests 
of  the  obligors,  and  stipulating  that  if  such 
taxpayer  would  dismiss  his  appeal  and 
therel)y  permit  the  collection  of  such  tax, 
and  if  such  obligees,  naming  them,  would 
pay  the  special  tax,  the  obligors  would  re- 
fund to  such  taxpayers  on  or  before  a  day 
named  "  severally,  the  taxes  they  may  sev- 
erally pay  for  said  purpose  into  the  county 
treasury,"  if  such  railroad  was  not  com- 
pleted to  a  certain  point  by  said  day.  The 
complaint  in  an  action  on  such  bond  failed 
to  allege  that  the  entire  tax  had  been  paid. 
/Je/{i,  that  the  complaint  was  defective  for 
this  reason,  as  the  bond  contemplated  the 
payment  of  the  whole  of  such  tax.  J/icks 
V.  Zion,  58  /nd.  548. 

Where  a  condition  precedent  requires 
that  certain  money  shall  be  expended  in 
finishing  and  furnishing  a  railroad,  it  is  not 
a  suf^.cient  averment  of  performance  to  al- 
lege that  it  was  expended  in  building,  finish- 
ing, and  furnishing  such  railroad.  Batch- 
elder  V.  Wendell,  36  N.  H.  204. 

A  treasurer  of  a  corporation  cannot  be 
indebted  until  a  demand  be  made  of  him ; 
but  an  allegation  that  he  is  indebted,  with  a 
statement  of  the  items  of  moneys  received 
by  him,  is  an  allegation  that  all  that  is  es- 
sential to  make  him  indebted  has  been 
done.  The  sutmnons  is  asiifficient demand; 
and  if  none  be  made  the  debt  is  recoverable, 
but  not  the  costs.  Second  Ave.  R.  Co.  v. 
Coleman,  24  Hard.  (N.  V.)  300. 

A  declaration  in  a  suit  to  recover  interest 
on  railroad  bonds  is  demurrable  that  recites 
that  the  interest  warrants  are  payable  at  a 
certain  bank  without  averring  an  actual 
presentation  or  an  olTer  to  present  and  de- 
liver them  Pt  the  bank  for  payment.  Os- 
borne  v.  Preston &>  B.  R  Co.,  9  U.  C.  C.P.  241. 

20.  Statement  of  caiiHe  of  nctlou  in 
fictions  for  torts,  generaily.—A  count 
purporting  to  be  in  case  and  alleging  negli- 


gent wrongful  acts  of  defendant,  is  not  to  be 
regarded  as  a  count  in  trespass  simply  be- 
cause it  alleges  among  such  negligent  acts 
other  acts  of  force  which  in  themselves 
would  have  been  proper  matter  for  a  count 
in  trespass.  Havens  v.  Hartford  &•  N.  H. 
R,  Co..  28  Conn.  69. 

A  f.eclaration  showing  on  its  face  that 
the  injury  complained  of  was  purely  acci- 
dental is  demurrable.  Hardwick  v.  Geor- 
gia R.  &»  B.  Co.,Z^  Ga.  507,  i\  S.  E.  Rep. 
832. 

A  complaint  to  recover  damages  for  a 
wilful  injury  must  show  that  the  injurious 
act  was  purposely  or  intentionally  com- 
mitted with  the  intent  wilfully  and  pur- 
posely to  inflict  the  injury  complained  of. 
Gregory  v.  Cleveland,  C,  C.  &- 1.  R.  Co.,  31 
Am.  &*  Eng.  R.  Cas.  440,  112  Ind.  385,  14 
N.  E.  Rep.  228. 

In  a  complaint  for  a  wilful  injury  there 
must  be  language  used  which  can  be  con- 
strued as  charging  that  defendant  had  an 
intent  either  actual  or  constructive  to  com- 
mit the  injury ;  but  it  is  not  necessary  to 
use  words  indicating  an  act  amounting  to  a 
crime  or  importing  actual  malice  towards 
the  owner  of  the  property  injured,  nor  to 
show  that  plaintiff  was  without  contribu- 
tory negligence,  nor  that  the  property  in- 
jured was  rightfully  at  the  place  of  injury, 
Chicago,  St.  L.  &*  P.  R.  Co.  v.  Nash,  i  Ind. 
App.  298,  27  N.  E.  Rep.  564.— Followed 
IN  Ohio  &  M.  R.  Co.  V.  McDaneld,  5  Ind. 
App.  108  ;  Ohio  &  M.  R.  Co.  v.  Craycraft, 
5  Ind.  App.  335. 

21. injury  to  lands.— In  an  action 

for  an  injury  to  the  reversion  the  declaration 
must  either  state  an  injury  of  such  a  nature 
as  to  be  necessarily  injurious  to  the  rever- 
sion, or  must  explicitly  allege  that  it  was 
injurious.  An  averment  that  the  act  com- 
plained of  is  prejudicial  to  the  tenant's  in- 
terest does  not  render  the  count  illegal. 
The  averment  that  the  reversionary  interest 
is  prejudiced  is  an  essential  part  of  the  count 
and  must  be  sustained  by  proof.  Tinsman 
v.  Belvidere  Del.  R.  Co.,  25  N./.  L.  255. 

An  allegation  that  a  railroad  company 
knowingly  permitted  a  third  person  to  use 
the  property  of  defendant  in  a  manner  that 
was  per.  se  injurious  to  the  adjacent  land  of 
plaintiff  imputes  an  actionable  wrong  to  it. 
Top/  v.  West  Shore  6-  O.  Terminal  Co.,  19 
Aw.  A*  Eng.  R.  Cas.  7,  46  N.  /.  L.  34.— DIS- 
TINGUISH ING  Cuff  V.  Newark  &  N.  Y.  R. 
Co.,  35  N.J.  L.  17. 


!! 


PLEADING,  22,  23. 


993 


is  not  to  be 
simply  be- 
;Iigent  acts 
themselves 
for  a  count 
d  &'N.H. 

i  face  that 

purely  acci- 

ck  V.  Geor- 

S.  E.  Rep. 

ages  for  a 
e  injurious 
nally  com- 
j  and  pur- 
iplained  of. 
R.  Co.,  31 
fnd.  38c,  14 

njury  there 
:an  be  con- 
ant  had  an 
;ive  to  com- 
lecessary  to 
unting  to  a 
ice  towards 
ired,  nor  to 
It  contribu- 
property  in- 
:e  of  injury. 
'Vash,  I  Ind. 
-Followed 
neld,  5  Ind. 
/.  Craycraft, 

-In  an  action 
;  declaration 
uch  a  nature 
o  the  rever- 

that  it  was 
the  act  com- 

tenant's  in- 
3unt  illegal, 
nary  interest 
,  of  the  count 
f.      Tinsman 

'.  L.  ass- 
ad  company 
erson  to  use 
manner  that 
icent  land  of 
wrong  to  it. 
minal  Co.,  19 
L.  34.— DlS- 
&  N.  Y.   R. 


A  declaration  which  avers  that  defend- 
ant, wrongfully  and  injuriously  intending, 
etc.,  filled  in  upon  its  lands  a  great  quantity 
of  eait!i,  and  raised  an  embani-Mnent  of  great 
height,  and  thereby  forced  a  large  quantity 
of  said  earth  into  and  upon  plaintiff's  lot, 
beneath  the  surface  of  the  same,  and  there- 
by upheaved  the  surface  of  the  same,  and 
caused  the  foundation  and  walls  of  the 
dwelling  houses  thereon  to  crack  and  top- 
ple over,  discloses  a  good  cause  of  action. 
Costigan  V.  Pennsylvania  R.  Co.,  S4  A'.  /.  Z, 
233.23.///.  /iV/.  810. 

In  an  action  on  the  case  against  a  railroad 
for  an  injury  to  plaiiitilFs  land,  it  is  not 
necessary  to  plead  specially.  Hills  v.  Bos- 
ton (S-  JA  A'.  Co.,  18  A'.  H.  179. 

Where  a  petition  alleges  that  a  crop  was 
in  fine  condition  during  certain  months, 
that  during  that  ]K-iiod  it  was  destroyed 
through  the  negligence  of  defendant,  that 
it  would  have  made  a  specified  amount  per 
acre,  and  was  worth  a  specified  sum  per  acre, 
these  allegations  show  what  the  crop  would 
produce  at  maturity,  and  not  what  the  imma- 
ture crop  was  worth  at  the  time  it  was  de- 
stroyed, and  a  demurrer  thereto  is  properly 
sustained.  Texas  &'  P.  R.  Co.  v.  Bayliss,  62 
Tex.  5/0. 

A  township  alleged  that  it  was  proprietor 
of  a  certain  public  road,  and  complained 
that  defendant,  in  constructing  its  railway, 
so  negligently  and  unskilfully  made  certain 
drains  that  great  injury  was  thereby  occa- 
sioned to  plaintiff's  road,  and  it  was  com- 
pelled to  expend  large  sums  of  money  in  re- 
pairing the  same.  Held,  good  on  demurrer, 
as  showing  a  special  injury  to  plaintiff  suf- 
ficient to  sustain  the  action.  Sarnia  v.  Great 
Western  R.  Co.,  17  U.  C.  Q.  B.  65. 

2t2.  ol>8tructing  (utrects,  ]ii{;li- 

wnys,  or  streams.— Plaintiffs,  who  had  a 
brick  yard  oti  a  na-igable  stream,  alleged 
that  defendant,  by  an  unlawful  obstruction 
therein,  shut  them  off  from  the  natural  mar- 
ket for  their  wares,  but  omitted  to  state  tlie 
place  at  which  the  obstruction  was  placed. 
Held,  on  general  demurrer,  that  as  a  matter 
of  substance  such  description  was  unneces- 
sary, and  that  considered  as  a  matter  of 
venue  in  the  body  of  the  pleading  it  was  a 
matter  of  form,  and  within  section  139  of  N. 
J.  PracticiE  Act.  Mehrhof  Bros.  Brick  Mfg. 
Co.  V.  Delaware,  L.  <S-  W.  R.  Co.,  51  N.J. 
£.56,  16/f//.  Rep.M. 

A   declaration    charged    that    defendant 
company    unlawfully  obstructed    a  public 
6  D.  R.  D.— 63 


street  adjoining  plaint'ff's  residence,  and 
thereby  prevented  a  free  passage  to  and 
from  it ;  that  it  unlawfully  kept  up  dan- 
gerous fires,  gencratcfl  about  his  premises 
noxious  vapors  and  smoke,  jarred  and  dis- 
jointed his  house,  and  made  his  residence 
unwholesome  and  uncomfortable.  Held:  (1) 
that  a  demurrer  to  the  declaration  was  not 
well  taken  ;  (2)  that  the  court  could  not 
determine  on  the  demurrer  whether  the 
company  had  power  to  do  such  things  or 
not ;  (3)  that  if  its  acts  were  lawful  they 
must  be  shown  by  plea,  or  in  some  other 
way,  and  not  on  demurrer.  Parrot  v.  Cin- 
cinnati, H.  &^  D.  R.  Co.,  3  Ohio  St.  330. 

Plaintiff  charged  that  he  was  the  owner 
in  fee  of  certain  real  estate  with  a  canal 
appurtenant  thereto,  which  he  had  a  right 
to  navigate,  which  had  been  constructed 
by  the  owners  of  the  premises;  that  de- 
fendant company  obstructed  said  premises 
by  entering  thereon  and  erecting  a  bridge 
over  the  canal  and  occupying  a  portion  of 
the  premises  by  a  bridge  which,  when  open, 
was  swung  over  the  premises.  Held,  that, 
if  plaintiff  established  the  facts  by  evidence, 
he  was  entitled  to  a  judgment  restraining 
the  company  from  swinging  the  bridge  over 
his  premises.  Sc/ieu  v.  A'e^u  York,  L.  &' 
W.R.  Co.,  \2N.   V.  S.  R.  99. 

A  complaint,  under  Wash.  Gen.  St.  §  1 570, 
fails  to  state  a  cause  of  action  when  its  only 
allegation  of  damage  is  "  that  the  expense 
of  relocating  and  opening  that  portion  of 
the  road  so  destroyed  and  appropriated  by 
defendant  as  aforesaid  is  and  will  be  the  sum 
of  thirty  thousand  dollars."  IVeymouth  v. 
Port  To7vnsend  Southern  R.  Co.,  6  IVash. 
575.  Z^Piic.Rep.  IS4. 

In  an  action  for  negligence  in  constructing 
a  railway  across  a  highway,  an  allegation  that 
the  company  "  tore  up,  changed,  destroyed, 
and  excavated  said  highway,"  does  not 
show  that  the  locus  in  quo  was  no  longer 
a  public  highway,  and  amounts  only  to 
an  allegation  that  the  use  of  said  highway 
by  the  public  was  interrupted  or  destroyed. 
Washburn  v.  Chicago  6f  N.  W.  R.  Co.,  68 
Wis.  474,  32  A^.   W.  Rep.  234. 

23.  Statement  of  cause  of  action  in 
actions  for  iienrliffence,  genernlly.*— 
A  complaint  in  a  negligence  case,  if  it  con- 
tain averments  embracing  causes  for  which 
plaintiff   may   recover,    is   not    demurrable 

*  As  to  sufficiency  of  complaint  in  actions 
based  on  negligence,  see  note,  13  Am.  St.  Rep. 
94. 


r 


I't-f 


994 


PLEADING,  24. 


15  P" 


'  1 M '  '! 


because  of  averments  of  special  damages 
embracing  causes  as  to  which  he  is  not 
entitled  to  recover;  these  latter  averments 
may  be  treated  as  surplusage.  Govt-rniiient 
St.  R.  Co.  V.  Hanhm,  53  Ala.  70. 

Under  the  liberal  rules  of  pleading  recog- 
nized by  Ala.  Code,  §  2978,  "when  the 
gravamen  of  the  action  is  the  alleged  non- 
feasance or  misfeasance  of  another,  it  is  suf- 
ficient, as  a  general  rule,  to  aver  the  facts 
out  of  which  the  duty  to  act  springs,  and 
that  defendant  negligently  failed  to  do  and 
perform,  etc. ;  and  it  is  not  necessary  to  de- 
fine the  quo  niodo,  or  to  specify  the  partic- 
ular acts  of  diligence  he  should  have  em- 
ployed." Mobile  &•  M.  R.  Co.  v.  Crenshaw, 
8  Atn.  <S»  Eng.  A\  Cas.  340,  65  Ala.  566. 

Very  general  averments  of  negligence, 
little  short  of  mere  conclusions,  meet  all  the 
requirements  under  the  Alabama  system  of 
I'.leading.  So  a  general  allegation  that  an 
employe  was  injured  through  the  negligence 
of  others,  and  through  certain  defects  in 
appliances,  is  sufficient.  Mary  Lee  C.  &^  A'. 
Co.  V.  C/iambliss,  97  Ala.  171,  11  So.  Rep. 
897.— Following  Georgia  Pac.  R.  Co.  v. 
Davis,  92  Ala.  307. 

Although  negligence  of  a  particular  kind 
is  not  specially  alleged,  it  may  still  be  a 
ground  of  recovery  if  it  is  fairly  covered  by 
the  averments  of  the  petition.  Neville  v. 
Chiaij^o  &»  N.  IV.  R,  Co.,  79  /owa  232, 44  A^. 
IF.  Rep.  367. 

Uniting  immaterial  charges  of  negligence 
with  those  that  are  material  and  necessary 
in  a  declaration  will  not  preclude  a  re- 
covery, it  being  the  duty  of  the  trial  court 
to  eliminate  the  immaterial  charges  from 
the  consideration  of  the  jury,  and  limit 
their  consideration  to  the  other  acts  al- 
leged which,  if  found 
negligence.  Thompson 
N.  M.  R.  Co.,  91  Mich. 

995- 

A  petition  charging  negligence  is  not  in- 
sufficient because  it  does  not  anticipate  and 
negative  facts  which  are  proper  matters  of 
defense  and  wiiich  are  set  up  in  the  answer. 
Mantioldv.  Si.  Louis,  /.  M.  6-  5.  A'.  Co.,  24 
J/o.  A  pp.  52. 

Where  from  the  nature  of  the  case  plain- 
tiff would  not  be  expected  to  know  the  ex- 
act cause  or  the  precise  negligent  act,  and 
where  such  facts  are  peculiarly  within  the 
knowledge  of  defendant,  it  is  sufficient  in  a 
generiil  way  to  allege  the  fact.  Missouri 
rac.  R.  Co.  v.  Hennessey,  42  Am.  &*  Eng.  R. 


to  exist,  constitute 
.V.  Toledo,  A.  A.  <S- 
255,  51  A'.  W.  Rep. 


Cas.    225,   75    Tex.   155,    12   5.    IV.  Rep. 

608. 

Where  negligence  is  the  gist  of  an  action, 
it  must  be  charged  in  the  petition ;  but  it  is 
not  necessary  that  it  be  averred  in  terms,  if 
such  facts  are  stated  as  will  raise  a  pre- 
sumption of  negligence.  So  a  complaint 
against  a  company  for  injuring  mules  while 
being  shipped  is  sufficient  where  it  charges 
that  they  were  not  properly  loaded  and 
transported  by  the  company,  whereby  they 
were  injured.  Missouri  Pac,  R.  Co.  v. 
Graves,  2  Tex.  App.  (Civ.  Cas.)  594, 

A  declaration  for  negligence  is  good  if 
it  contains  the  substantial  elements  of  a 
cause  of  action,  the  duty  violated,  the 
breach  thereof  properly  averred,  with  such 
matters  as  are  necessary  to  render  the  cause 
of  action  intelligible,  so  that  judgment 
according  to  law  and  the  very  right  of 
the  case  can  be  given.  Poling  v.  Ohio 
River  R.  Co.,  38  W.  Va.  645.  18  S.  E.  Rep. 
782. 

24.   iivjiiries,   generally.  —  (i) 

Time  and  place  of  injury. — In  an  action 
against  a  railroad  company  to  recover  dam- 
ages for  injuries  to  live  stock,  it  is  suf- 
ficient averment  of  time  and  place  to  state 
that  the  injury  was  done  "  on  or  about  the 
20th  o{  September,  1887,"  and  "at  a  place 
on  said  railroad  about  seventy-five  or  one 
hundred  yards  distant  from  Cowles  Station 
in  said  county."  Western  R.  Co.  v.  Sistrunk, 
85  Ala.  352,  5  So.  Rep.  79. 

An  allegation  that  the  plaintiff  was  in- 
jured while  walking  upon  the  track  of 
defendant  constructed  in  a  certain  street, 
which  street  and  track  were  "  necessarily 
used  "  by  the  public,  must  be  construed  to 
mean  that  the  street  was  so  narrow  or 
otherwise  obstructed  that  there  was  not 
room  to  walk  along  it  without  going  upon 
the  track,  and  is  sufficient  on  general  de- 
murrer, even  though  special  exceptions 
might  have  been  sustained.  Lewis  v.  Gal- 
veston, H.  <S>»  .S".  A.  R.  Co.,  39  Am.  &*  Eng. 
R.  Cas.  372,  73  Tex.  504,  1 1  S.  IV.  Rep.  528. 

A  complaint  alleging  that  defendant  neg- 
ligently and  wilfully  permitted  one  of  its 
turntables  to  remain  in  a  dangerous  and 
unsafe  condition,  and  that  its  servants  care- 
lessly and  negligently  run  its  cars  against 
the  table  while  it  was  being  turned,  thereby 
injuring  plaintiff's  child  of  tender  years, 
who  was  thereon,  is  sufficient  on  demurrer. 
Ekman  v.  Minneapolis  St.  R.  Co.,  34  Minn. 
24,  24  A^.  W.  Rep.  291. 


f'r 


PLEADING,  24. 


995 


S.    W.  Rep. 

of  an  action, 
on ;  but  it  is 
1  in  terms,  if 

raise  a  pre- 
a  complaint 

mules  wiiile 
;re  it  charges 

loaded  and 
vhereby  they 
.    Ji.    Co.   V. 

)  594- 

:e  is  good  if 
ements  of  a 
violated,  the 
:d,  witli  such 
der  the  cause 
It  judgment 
ery  right  of 
ling  V.  0/tio 
i8  S.  E.  Rep. 

irally.  —  (i) 

[n  an  action 
recover  dam- 
:k,  it  is  suf- 
)lace  to  state 
or  about  the 
1  "  at  a  place 
y-five  or  one 
owles  Station 
9.  V.  Sistrunk, 

ntiff  was  in- 
the  track  of 
:ertain  street, 
"  necessarily 
construed  to 
50  narrow  or 
liere  was  not 
it  going  upon 
n  general  de- 
1  exceptions 
Leiuis  V.  Gal- 
Am.  &^  Eng. 
IV.  Rep.  528. 
efendant  neg- 
;d  one  of  its 
langerous  and 
servants carc- 
>  cars  against 
irned,  thereby 
tender  years, 
on  demurrer. 
Co.,  34  Minn. 


(2)  Charging  negligence. — It  is  not  suf- 
ficient merely  to  allege  that  plaintiff  was 
injured  through  the  negligence  of  defendant 
company  "  in  using  defective  machinery" 
and  "in  running  its  cars."  Waldhier  v. 
Hannibal  <S>«  St.  J.  R.  Co.,  2  Am.  <S-  Eng.  R. 
Cas.  146,  71  Mo.  514.— Distinguished  in 
Schneider  v.  Missouri  Pac.  R.  Co.,  75  Mo. 
295 ;  Palmer  v.  Missouri  Pac.  R.  Co.,  76  Mo. 
217;  Condon  -  Missouri  Pac.  R.  Co.,  78 
Mo.  567 ;  Carlisle  v.  Keokuk  N.  L.  Packet 
Co.,  82  Mo.  40 ;  Dickson  v.  Missouri  Pac. 
R.  Co.,  104  Mo.  491  ;  Otto  v.  St.  Louis,  I. 
M.  &  S.  R.  Co.,  12  Mo.  App.  168;  Whiter/. 
Wabash  Western  R.  Co.,  34  Mo.  App.  57; 
East  Line  &  R.  R.  R.  Co.  v.  Brinker,  68 
Tex.  500.  Followed  in  Price?/.  St.  Louis, 
K.  C.  &  N.  R.  Co.,  3  Am.  &  Eng.  R.  Cas. 
365,  72  Mo.  414;  Edens  v.  Hannibal  &  St. 
J.  R.  Co.,  5  Am.  &  Eng.  R.  Cas.  459,  72  Mo. 
212;  Harrison  v.  Missouri  Pac.  R.  Co.,  7 
Am.  &  Eng.  R.  Cas.  382,  74  Mo.  364,  41  Am. 
Rep.  318;  Ellis  V.  Wabash,  St.  L.  &  P.  R. 
Co.,  17  Mo.  App.  126;  Abbott  v.  Kansas 
City.  St.  J.  &  C.  B.  R.  Co.,  20  Am.  &  Eng. 
R.  Cas.  103,  83  Mo.  271,  53  Am.  Rep.  581. 
Qualified  in  Wills  v.  Cape  Girardeau  S. 
W.  R.  Co.,  44  Mo.  App.  51.  Referred  to 
IN  Siela  V.  Hannibal  &  St.  J.  R.  Co.,  82  Mo. 
430.  Reviewed  in  Woodward  v.  Oregon 
R.  &  N.  Co.,  18  Oreg.  289. 

It  is  not  necessary  for  plaintiiT  suing  for 
a  personal  injury  to  charge  gross  neglect. 
An  allegation  of  ordinary  neglect  is  suffi- 
cient to  enable  him  to  recover  compensatory 
damages.  Ramsey  v.  Louisville,  C.  S^  L.  R. 
Co.,  89  Ky.  99,  20  S.  W.  Rep.  162. 

Where  a  complaint  alleges  that  plaintiff 
was  injured  through  the  gross  negligence 
of  defendant's  engineer  and  fireman,  but 
does  not  allege  that  the  engineer  or  fireman 
inflicted  the  injury  wilfully,  wantonly,  or 
through  malice,  the  word  "  gross  "  must  be 
treated  as  a  mere  expletive,  and  the  use  of 
it  as  characterizing  the  negligence  alleged 
makes  no  material  difference  in  the  mean- 
ing of  the  complaint.  McAdoo  v.  Richmond 
&•  D.  R.  Co.,  41  Am.&'Etig.  R.  Cas.  524,  105 
A'.  Car.  140,  II  S.  E.  Rep.  316.— FOLLOWED 
IN  High  V.  Carolina  C.  R.  Co.,  112  N.  Car. 

385. 

In  an  action  for  personal  injuries  not  re- 
sulting in  death,  inflicted  January  20, 1887,  it 
is  not  necessary  to  allege  that  the  injury  was 
caused  by  the  gross  negligence  of  defend- 
ant, a  railway  company,  as  would  have  been 
necessary    had    death    resulted.     Avey   v. 


Galveston,  H.  &*  S.  A.  R.  Co.,  81  Tex.  243, 
16  5.  W.  Rep.  1015. 

(3)  Stating  facts  constituting  negligence 
and  nature  of  injury. — A  party  suing 
for  negligent  injury  is  bound  to  set 
forth  in  liis  declaration  the  material  facts 
relied  on  as  his  cause  of  action  and  to 
prove  the  same  combination  of  circum- 
stances. Batterson  v.  Chicago  &•  G.  T.  R, 
Co.,  8  Am.  &*  Eng.  R.  Cas.  123,49  Mich. 
184,  13  iV.  W.  Rep.  508.  Pittsburgh,  C.  &* 
St.  L.  R.  Co.  v.  Adams,  23  Am.  &*  Eng.  R. 
Cas.  408,  105  Ind.  i-si,  5  N.  E.  Rep.  187. 
Edens  v.  Hannibal &*  St.  f.  R.  Co.,  5  Am.  &* 
Enjf.  R.  Cas.  459,  72  Mo.  212.  — FOLLOWING 
Waldhier  v.  Hannibal  &  St.  J.  R.  Co.,  71 
Mo.  514;  Buflington  v.  Atlantic  &  P.  R. 
Co.,  64  Mo.  246. — Distinguished  in  Otto 
V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  12  Mo. 
App,  168.  Followed  in  Abbott  z/.  Kansas 
City,  St.  J.  &  C.  B.  R.  Co.,  20  Am.  &  Eng. 
R.  Cas.  103,  83  Mo.  271,  53  Am.  Rep.  581. 
Reviewed  in  Woodward  v.  Oregon  R.  & 
N.  Co.,  18  Oreg.  289. 

A  declaration  by  a  married  woman  for 
injury  to  her  person  which  alleges  a  definite 
personal  injury  which  incapacitated  her  to 
walk  without  crufches  embraces  by  neces- 
sary implication  the  impairment  of  her  ca- 
pacity to  labor.  Atlanta  St.  R.  Co.  v.facobs, 
88  Ga.  647,  15  5.  E.  Rep.  82$.— Approved 
IN  Metropolitan  St.  R.  Co.  v.  Johnson,  90 
Ga.  500. 

A  complaint  must  show  that  the  injury 
was  the  natural  and  proximate  result  of  the 
wrongful  act  of  the  defendant ;  but  this 
need  not  be  specifically  alleged.  A  state- 
ment of  facts  which  shows  a  direct  connec- 
tion between  the  wrongful  act  of  the  de- 
fendant and  the  injury  is  sufficient.  Ditgan 
v.  .St.  Paul  (So  D.  R.  Co.,  40  Minn.  544, 42  N. 
IV.  Rep.  538. 

A  complaint  is  sufficient  if  it  alleges  the 
injuries  received  by  plaintiff  and  facts  from 
which  negligence  of  defendant  may  be  rea- 
sonably inferred.  Madden  v.  Port  Royal  &* 
IV.  C.  R.  Co.,  52  Am.  &"  Eng.  R.  Cas.  286, 
35  So.  Car.  381,  14  S.  E.  Rep.  713. 

It  is  not  essential  that  the  petition  should 
specially  aver  that  the  injury  is  permanent 
in  order  to  recover.  Cook  v.  Missouri  Pac, 
R.  Co.,  19  Afo.  App.  329. 

The  future  and  permanent  effect  of  inju- 
ries necessarily  resulting  to  plaintiff  need 
not  be  specially  alleged,  but  damages  are 
recoverable  under  the  general  ad  damnum 
clause.    If  the  complaint  sets  out  in  detail 


996 


PLEADING,  25,  26. 


If' 


i! 


the  injuries  received,  and  shows  that  they 
are  of  a  permanent  character,  so  that  the 
court  can  see  that  they  will  necessarily  ren- 
der ptlaintifl  less  capable  of  attending  to 
his  business,  an  instruction  to  the  effect  that 
the  jury  may  take  into  consideration  "  the 
permanent  loss  and  damage,  if  any  is  proved, 
arisinfj  from  any  disability  resulting  to 
plaintiff  from  the  injury  in  question  which 
renders  him  less  capable  oi  attending  to  his 
business  than  he  would  have  been  if  the 
injury  had  not  been  received  "  is  proper. 
It  IS  only  damages  which  are  not  the  neces- 
sary result  of  the  injury  which  must  be 
specially  pleaded.  Tread-iiell  v.  Whittier, 
So  Cal.  574,  22  Pac.  Kep.  266. 

A  declaration  for  the  dislocation  of  plain- 
tiff's shoulder,  and  alleging  consequent  suf- 
fering and  other  invisible  and  internal  ail- 
ments, should  not  be  held  to  any  technical- 
ity of  construction.  The  injury  which  is 
visible  and  open  to  common  observation 
may  be  described  and  tested  easily,  and 
should  be  described  reasonably.  But  in- 
ternal and  invisible  ailments,  which  are  only 
inferred  from  scientific  deduction,  and  on 
which  there  is  always  room  for  some  differ- 
ence of  opinion,  cannot  be  held  so  to  close 
a  rule.  Laughlin  v.  Grand  Rapids  St.  K. 
Co.,  26  Am.  &*  Eng.  A'.  Cas.  377,  62  Af/c/t. 
220.  28  A'.  IV.  Kep.  873. 

Where  the  manner  in  which  cars  are 
moved  upon  a  passing  vehicle,  causing  in- 
jury, is  shown,  the  designation  of  it  as  a 
running  switch  is  immaterial;  besides,  it  is 
not  descriptive  where  the  pleading  shows 
the  actual  facts  and  that  the  term  was  not 
properly  used.  International  &•  G.  N.  Ji. 
Co.  V.  Dyer,  76  Tex.  1 56,  13  S.  W.  Rep.  377. 

25.  injuries   to   passeiif^ers.— 

In  an  action  by  a  passenger  to  recover 
damages  from  a  company  for  wrongfully 
expelling  him  from  its  train,  it  is  not  neces- 
sary for  the  declaration  to  allege  that  the 
passenger,  at  the  time  of  his  expulsion,  was 
complying  with  the  reasonable  rules  of  the 
company,  or  to  allege  that  he  was  not  about 
to  violate  any  such  reasonable  rule  at  the 
time  of  his  expulsion.  South  Fla.  R.  Co.  v. 
Rhodes,  37  Am.  &*  Eng.  R.  Cas.  100,  25  Fla. 
40,  5  So.  Rep.  633,  3  L.  R.  A.  733. 

A  declaration  by  a  husband  alleging  that 
his  wife,  being  a  passenger  on  one  of  de- 
fendant's cars,  undertook  to  alight,  and  that 
while  so  doing  the  car  suddenly  started, 
causing  her  to  fal'  to  the  ground,  "there- 
by producing  such  serious  bodily  injuries  as 


to  deprive  him  for  a  long  time  of  her  com- 
pany and  services,  and  en*.ail  upon  him 
iieavy  expense  for  nursing  and  medical  at- 
tention, all  to  his  damage  "  in  the  sum  of 
$1000,  sets  forth  substantially  a  cause  of  ac- 
tion,and  though  wanting  111  sufficient  fulness 
and  detail  as  to  the  manner  in  which  the 
injury  was  caused,  and  its  consequences,  of 
which  advantage  could  be  taken  by  special 
demurrer  at  the  first  term,  should  not  at  the 
trial  term  be  dismissed  on  the  ground  that 
the  allegations  as  to  the  nature  and  extent 
of  the  injuries  were  too  vague,  uncertain, 
and  indefinite  to  put  defendant  on  notice  as 
to  the  nature  of  the  case  to  be  proved. 
James  v.  Atlanta  St.  R.  Co.,  90  Ga.  695,  16  S. 
E.  Rep.  642.— Applying  Ellison  v.  Georgia 
R.  Co.,  87  Ga.  691. 

The  above  is  applicable  to  a  declaration 
filed  by  the  wife  against  the  same  defendant 
stating  in  substantially  the  same  terms  the 
manner  in  which  she  was  injured,  and  alleg- 
ing that  "  by  reason  of  said  fall  she  was 
badly  injured  in  her  body,  so  that  she  suf- 
fered great  pain,  and  still  does,  and  will 
continue  to  do  so,  and  will  remain  perma- 
nently injured,"  and  that  "  said  fall  also 
caused  great  mental  shame  and  distress," 
all  to  her  damage  in  the  sum  of  $5000. 
James  v.  Atlanta  St.  R.  Co.,  90  Ga.  695,  16 
S.  E.  Rep.  642. 

In  an  action  for  the  death  of  a  passenger 
the  complaint,  after  alleging  that  defendant 
company  owned  a  railroad  and  operated 
trains  thereon  between  certain  points  in  the 
state,  averred  that  "  on  or  about  the  24th 
day  of  August,  1890,  *  *  *  the  intestate  of 
the  plaintiff,  being  then  rightfully  on  a  train 
of  cars  of  the  defendant,  ♦  ♦  *  was  by  the 
wrongful  act,  neglect,  and  default  of  the  de- 
fendant slain  and  killed."  Held,  on  de- 
murrer, that  the  complaint  was  not  suffi- 
cient. It  should  aver  that  he  was  on  the 
train  as  a  passenger,  by  contract  express  or 
implied,  and  the  time  and  place  of  the  in- 
jury and  the  time  of  death,  where  it  seems 
that  the  time  of  injury  and  death  was  not 
the  same.  Conley  v.  Richmond &*  D.  R.  Co. , 
j2  Am.  (S-  Eng.  R.  Cas.  490, 109  N.  Car.  692, 
14  S.E.  Rep.  303. 

26. injuries    at   crossings.*  — 

Where  the  action  is  for  personal  injuries, 
an  allegation  that  the  train  which  caused 


*  Negligence  at  a  crossing.  What  is  a  suffi- 
cient averment  thereof,  see  23  Am.  &  Eng.  R. 
Cas.  297,  aistr. 


t: 


TT' 


PLEADING,  27-30. 


997 


of  her  com- 
I   upon    him 

medical  at- 

the  sum  of 
cause  of  ac- 
cietit  fulness 
n  which  the 
equences,  of 
n  by  special 
Id  not  at  the 
ground  that 

and  extent 
e,  uncertain, 
on  notice  as 

be  proved. 
la.  69s,  16  S. 
n  V.  Georgia 

declaration 
lie  defendant 
le  terms  the 
d,  and  alleg- 
'all  she  was 
hat  she  suf- 
les,  and  will 
iiain  perma- 
aid  fall  alsa 
nd  distress," 
m  of  $5000. 
0  Ga.  695,  16 

a  passenger 
lat  defendant 
nd  operated 
points  in  the 
out  the  24th 

intestate  of 
illy  on  a  train 
*  was  by  the 
lit  of  the  de- 
'leld,  on  de- 
ms  not  suffi- 

was  on  the 
ct  express  or 
ce  of  the  in- 
lere  it  seems 
eath  was  not 
'&'D.K.Co., 
)  N.  Car.  692, 

ossiiigs.*  — 

}nal  injuries, 
vhich  caused 


'hat  is  a  suffi- 
kM.  &  Eng.  R. 


\'..c  i:  jr.ricc  van  running  at  a  dangerous 
latc  of  s[)CLHi  IS  not  stiniciciit,  where  it  fails 
to  suite  any  1  elation  wiiicii  sucii  speed  had 
to  piamtitT's  injury.  Pike  v.  Chicago  &•  A. 
A'.  Co.,  39  Fiti.  AV/>.  754. 

Where  a  company  is  sued  for  negligently 
causing  an  injury  at  a  crossing,  the  act  done 
or  omitted  constituting  negligence  must  be 
averred  and  proved,  and  if  not  alleged,  proof 
of  it  will  not  be  allowed.  Missouri  Pac.  R. 
Co.  V.  Hennessey,  42  Am.  &*  Eng.  R.  Cas. 
225,  75  7£x.  155,  12  S.  W.  Rep.  608. 

A  petition  which  merely  states  that  a  view 
is  obstructed  from  one  place  to  another 
without  showing  what  benefit  or  advantage 
there  was  in  such  view,  or  what  damage  re- 
sults from  the  obstruction,  does  not  state  a 
cause  of  action.  Lyon  v.  McDonald,  47 
Am.  &*  Eng.  R.  Cas.  217.  78  Tex.  71,  14  5. 
IV.  Rep.  261. 

27.   Injuries   to    persons    on 

track,  trespassers,  etc. — Plaintiff,  who 
sued  for  personal  injuries,  alleged  that  he 
went  on  a  trestle  on  defendant's  road,  in  the 
night-time,  about  the  time  lie  knew  a  train 
was  due,  away  from  a  highway  crossing,  and 
that  he  could  have  avoided  injury  if  the  en- 
gineer had  blown  his  whistle,  but  did  notaU 
lege  what  he  did  to  avoid  the  injury,  nor  that 
the  fireman  or  engineer  saw  him  before  the 
injury,  nor  that  the  injury  was  wilful.  Held, 
that  the  complaint  was  doubly  defective,  (i) 
in  showing  contributory  negligence;  (2)  in 
failing  to  show  a  statement  of  facts  wliich, 
if  established,  would  make  the  company 
liable.  Georgia  Pac.  R.  Co.  v.  Richardson, 
80  Ga.  727,  7  .V.  /;.  Rep.  1 19. 

Plaintiflf's  declaration  not  alleging  that 
he  had  permissirn  from  the  owner  of  an 
electric  system  on  which  he  had  entered  at 
the  time  he  was  injured  to  come  in  contact 
with  its  wires  or  to  climb  its  pole  in  the 
prosecution  of  his  business  for  another  com- 
pany, or  that  defendant  knew  of  his  presence 
at  the  scene  of  the  injury,  which  was  up  in 
the  air,  some  twenty-three  feet  or  more  from 
the  ground,  the  declaration  set  forth  no 
cause  of  action,  and  a  general  demurrer 
thereto  should  have  been  sustained.  Au- 
gusta R.  Co.  v.  Andreses,  89  Ga.  653,  16  S. 
E.  Rep.  203. 

A  person  having  by  statute  a  claim  against 
a  railroad  company  for  damages  for  personal 
injuries  caused  by  gross  negligence,  although 
upon  a  train  under  such  circumstances  that 
the  relation  of  carrier  and  passenger  did  not 
exist,  .11)  allegation  in  an  action  for  injuries 


causcfl  by  the  company's  gross  negligence 
that  plaintiff  was  a  passenger  is  merely  re- 
dundant, and  will  not  defeat  a  recovery. 
Way  V.  Chicago,  R.  I.  &>  P.  R.  Co.,  34  Am. 
&^  Eng.  R.  Cas.  286,  73  /owa  463,  35  N.  W. 
Rep.  525. 

A  complaint  alleging  that  plaintiff  was  on 
the  track  of  defendant's  road,  and  without 
any  warning  to  him,  and  without  any  fault 
on  his  part,  a  locomotive  was  negligently 
•  run  against  him,  etc.,  is  substantially  good. 
Such  complaint  is  also  good  if  it  is  alleged 
that  defendant  wilfully  and  purposely  and 
with  great  force  ran  the  locomotive  against 
plaintiff.  Terre  Haute  &*  I.  R.  Co.  v.  Gra- 
ham, <\6/nd.  239.6  Am.  Ry.  Rep.  358.— DIS- 
TINGUISHED IN  Cincinnati,  H.  &  I.  R.  Co, 
V.  Carper,  31  Am.  &  Eng.  R.  Cas.  36,  112 
Ind.  26. 

28.  injuries  to  vessels.— Under 

Massachusetts  statutes  the  superintendent 
of  a  railroad  drawbridge  has  no  right  to 
open  it  within  fifteen  minutes  of  the  time 
that  a  train  is  due.  Plaintiff's  declaration 
alleged  that  he  was  passing  a  stream  in  a 
vessel,  which  was  injured  by  coming  under 
defendant's  drawbridge  and  the  tide  rising, 
by  reason  of  defendant's  superintendent 
wilfully  and  negligently  refusing  to  open 
the  draw.  Held,  not  sufficient,  as  it  did  not 
show  that  the  request  was  made  at  a  time 
when  the  superintendent  had  any  right  to 
open  the  bridge.  Jennings  v.  Fitchburg  R. 
Co.,  146  Mass.  621,  6  N.  Eng.  Rep.  269, 16 
N.  E.  Rep.  468. 

29. destruction  of  property  Vv 

Are. — Plaintiff  sued  to  recover  for  the  loss 
of  property  by  fire,  and  alleged  that  it  was 
by  reason  of  defendant  wrongfully  storing 
combustibles,  in  violation  of  an  ordinance, 
in  a  certain  place.  Held,  that  the  com- 
plaint was  sufficient  on  demurrer  where  it 
averred  an  unlawful  storing  of  such  com- 
bustibles, and  showed  with  reasonable  cer- 
tainty that  the  loss  was  the  proximate  cause 
of  such  act.  Wright  v.  Chicago  &•  N,  W. 
R.  Co.,  7  ///.  App.  438- 

;JO.  Negativing  contributory  neg- 
ligence.*— A  complaint  against  a  turnpike 
company  for  injury  in  consequence  of  the 
careless  and  obviously  defective  construction 
of  defendant's  road,  which  avers  that "  plain- 

*  Duty  to  negative  contributory  ncRllgence  in 
complaint,  see  notes.  22  Am.  &  Eng.  R.  Cas, 
651 ;  19  /</.  194:  38  lit.  183.  222,  ahstr.;  41  /</.  484, 
ahstr  See  also  CoNriuiii'iouY  Neoligence, 
52-81. 


3* 


998 


PLEADING,  31. 


hP 


tiff  was  usinjj  great  care  when,  without  any 
fault  or  carelessness  of  plaintiff,"  the  injury 
occurred,  and  it  was  "caused  wholly  by  the 
negligence  and  carelessness  of  the  defend- 
ant, and  without  the  fault  or  negligence  of 
the  plaintiff,"  sufficiently  negatives  contribu- 
tory negligence,  and  is  good  on  demurrer. 
Wilson  V.  Trafalgar  &•  B.  C.  Gravel  Road 
Co. ,  83  Intl.  326. 

A  general  allegation  that  plaintiff  was 
without  fault  is  sufficient  to  negative  con- 
tributory negligence ;  but  if  after  such  alle- 
gation the  complaint  gives  particulars  show- 
ing that  as  a  matter  of  fact  plaintiff  was  not 
free  from  neglect,  such  particulars  will  con- 
trol the  allegation.  Toledo,  St.  L.  &*  K.  C. 
A\  Co.  v.  WingateAlnd.)  58  Am.&'Eng.R. 
Cas.  232,  37  N.  E.  Rep.  274. 

A  petition  claiming  damages  from  a  rail- 
road company  bCi..>d  to  keep  certain  streets 
in  repair,  resulting  from  plaintiff's  stepping 
into  a  hole  in  a  crossing,  which  was  danger- 
ous, and  negligently  left  by  the  company 
notwithstanding  full  notice,  is  not  amenable 
to  an  exception  of  no  cause  of  action  because 
it  recites  that  the  injury  resulted  while  plain- 
tiff was  alighting  from  a  car  moving  slowly 
and  with  slackening  speed  preparatory  to 
stopping,  and  also  that  plaintiff  was  an 
active  and  vigorous  person  accustomed  to 
alight  in  this  way,  and  showing  no  unfavor- 
able conditions  tending  to  render  the  act 
exceptionally  rash  or  hazardous.  Ober  v. 
Crescent  City  R.  Co.,  52  Am.  &*  Eng.  R.  Cas. 
576,  44  La.  Ann.  1059,  11  So.  Rep.  818. 

31.  Joinder  of  causes  of  uctioii.* 
— A  declaration  containing  a  count  in  tres- 
pass for  forcible  expulsion  from  the  cars, 
and  also  a  count  for  negligently  damaging 
plaintiff's  tool  chest,  carried  by  defendant, 
is  bad  for  misjoinder  of  causes  of  action. 
Havens  v.  Hartford  (S^•  N.  H.  R.  Co.,  26 
Conn.  220. 

Where  a  landowner  conveys  a  right  of 
way  over  his  lands  in  consideration  that 
the  company  wdl  locate  a  depot  thereon, 
a  complaint  seeking  to  recover  damages 
equal  to  the  value  of  the  right  of  way  con- 
veyed, and  damages  to  the  remainder  of  the 
land  for  failing  to  locate  the  depot,  states 
but  a  single  cause  of  action.  Louisville,  St. 
L.  &•  T.  R.  Co.  V.  Neafus,  93  Ky.  53.  18  S. 
IV.  Rep.  1030. 

*  Cause  of  action  for  failure  to  erect  cattle- 
guards  cannot  be  joined  with  cause  of  iiction  for 
Hooding  lands,  see  44  Am.  &  Eng.  R   Cas.  494, 

ti6itr. 


An  original  declaration  against  a  common 
carrier  declared  only  upon  the  common  law 
liability  for  refusing  to  receive  grain  when 
tendered  for  transportation,  and  afterwards 
under  leave  of  court  additional  counts  were 
filed  for  not  carrying  the  grain  after  its 
acceptance.  The  defendant  pleaded  the 
statute  t>f  limitations,  that  the  cause  of 
action  in  the  new  counts  did  not  accrue 
within  five  years  before  such  counts  were 
filed.  Held,  that  it  was  error  t»  sustain  a 
demurrer  to  the  plea,  the  additional  counts 
introducing  an  entirely  different  cause  of  ac- 
tion.   Phelps  V.  Illinois  C.  R.  Co.,  94  ///.  548. 

While  the  injuries  are  distinct  In  charac- 
ter, they  both  proceed  in  a  general  sense 
from  the  same  wrong  and  are  "  transactions 
connected  with  the  same  subject  of  action," 
within  the  meaning  of  N.  Y.  Code  of  Civ. 
Pro.  §  484,  authorizing  the  union  of  two 
or  more  of  such  causes  of  action  in  one 
complaint.  Lamming  v.  Galusha,  135  N. 
Y.  239,  31  A^.  £•.  Rep.  1024,  47  A^.  Y.  S.  R. 
831  ;  reversing  63  Hun  32,  22  Civ.  Pro.  16, 
43  N.   Y.  S.  R.  592,  \T  N.  Y.  Supp.  328. 

A  claim  for  both  legal  and  equitable 
relief  may  be  united  in  one  action,  where 
they  are  not  inconsistent  with  each  other. 
Thus  plaintiff  may  sue  a  railroad  company 
for  damages  for  obstructing  a  way,  and  may 
ask  for  equitable  relief  to  compel  the  com- 
pany to  open  the  way.  Getty  v.  Hudson 
River  R.  Co.,  6  How.  Pr.\X.  F.)  269. 

Where  a  complaint  contains  three  distinct 
grounds  of  recovery — (i)  the  erection  of  an 
embankment  between  plaintiff's  farm  and 
the  channel  of  a  river,  thus  depriving  him 
of  the  navigation  of  the  river;  (2)  the 
building  of  the  company's  road  across  the 
mouth  of  a  bay  adjoining  plaintiff's  farm 
and  its  failure  to  construct  such  a  bridge  as 
is  necessary  to  provide  a  free  passage  for 
vessels  from  tlie  river  to  the  bay ;  and  (3) 
the  omission  of  the  company  to  construct 
passes  or  roads  across  the  railroad  for  the 
purpose  of  enabling  plaintiff  to  farm  and 
manage  his  lands— it  is  bad  on  demurrer. 
Getty  V.  Hudson  River  R.  Co.,  8  How.  Pr. 
{N.   Y.)  \77. 

Plaintiff  sued  an  elevated  railroad  and 
two  individuals  to  recover  damages  for  the 
erection  anii  maintenance  of  an  elevated 
road  in  the  street.  The  complaint  alleged 
that  the  individual  defendants  were  sure- 
ties on  a  bond  given  by  the  company  for 
the  payment  of  such  damages  as  should 
be  adjudged  to  be  paid  by  the  company ; 


1 1 


PLEADING,  32,  33. 


999 


t  a  common 
ommon  law 
grain  when 

afterwards 
counts  were 
in  after  its 
leaded  the 
e  cause  of 
not  accrue 
ounts  were 
o sustain  a 
}nal  counts 
cause  of  ac- 
.  94  ///.  548. 
t  ill  charac- 
neral  sense 
rarsactions 

of  action," 
ode  of  Civ. 
ion  of  two 
tion  in  one 
ha,  135  N. 
(V.  Y.S.R. 
iv.  Pro.  16, 
>/.  328. 
1  equitable 
tion,  where 
each  other, 
id  company 
ly,  and  may 
:l  the  com- 
V.  Hudson 
)269. 

iree  distinct 
:ction  of  an 
1  farm  and 
triving  him 
;r;  (2)  the 
across  the 
itiflf's  farm 
a  bridge  as 
massage  for 
ly ;  and  (3) 
)  construct 
)ad  for  tlie 

farm  and 

demurrer. 

3  How.  Pr. 

ilroad  and 
jes  for  the 
n  elevated 
int  alleged 
were  sure- 
mpany  for 
as  should 
company ; 


but  it  appeared  that  no  adjudication  of 
damages  had  ever  been  had.  Hild,  that 
the  complaint  was  bad  on  demurrer,  as  join- 
ing a  cause  of  action  on  contract  witii  one 
in  tort,  and  as  alleging  a  cause  of  action  on 
the  bond  before  any  had  accrued.  Hurt  v. 
Ahtropolitan  El.  R.  Co.,  27  N.  Y.  S.  R.  813, 
7  A'.  Y.  Supp.  753.  IS  Daly  391. 

A  claim  in  a  division  court  for  §40  for 
detention  of  plaintiff  as  a  passenger  was 
removed  by  certiorari  into  the  queen's 
bench,  where  the  declaration  was  on  con- 
tract for  $500  for  delaying  plaintilT  in  his 
journey,  in  not  starting  the  train  at  the 
time  named.  An  application  to  set  aside 
the  declaration  was  refused,  the  two  claims 
being  held  sufficiently  similar,  considering 
the  want  of  technicality  in  division-court 
pleadings.  Hunter  v.  Grand  Trunk  R.  Co., 
6  Ont.  Pr.  67. 

32.  Rule  rcqiiiriiit;  Hcparate  statc- 
iiiviit  of  tlistiiict  causes  uf  tictioii. — 
Where  plaintiffs  unite  in  the  same  com- 
plaint three  substantive  grounds  of  injury, 
one  for  building  an  embankment  on  the 
company's  own  land,  one  for  building  an 
embankment  on  a  highway  near  plaintiff's 
store,  and  a  third  for  erecting  an  embank- 
ment on  plai  *iff's  land,  the  injuries  are  not 
separately  stated,  and  a  demurrer  for  that 
cause  will  be  sustained.  Durkeew  Saratoga 
(3^  IV.  R.  Co.,  4  Hozo.  Pr.  (X.  Y.)  226.— 
Rf.viewkd  in  Bass  v.  Upton,  i  Minn.  40S 
(Gil.  292). 

Where  plaintiff  states  as  his  ground  of 
complaint  the  negligence  of  defendant  in 
leaving  opci  switches  and  the  act  of  an  en- 
gineer in  running  his  train  at  a  greatly  ex- 
cessive speed,  the  complaint  states  two 
causes  of  action  wMch  should  be  separately 
stated,  and  plaintiff  may  be  required  on 
motion  to  state  the  two  causes  properly  or 
elect  which  he  will  retain  for  trial.  Reed  v. 
Northeastern  R.  Co. ,  37  So.  Car.  42. 

33.  What  cuiiiits  may  be  joined.— 
A  count  seeking  recovery  for  personal  in- 
juries occasioned  by  falling  in  a  ditch  dug 
by  defendant  in  a  public  highway,  and  aver- 
ring that  the  injury  was  cau.sed  by  the  gross 
negligence  of  defendant  in  cutting  the  ditch 
and  leaving  it  exposed,  is  in  case,  and  so  also 
is  a  like  count  which  alleges  a  duty  of  de- 
fendant to  furnish  brid.t;es,  barricades,  or 
other  usual  means  to  protect  tiie  public 
from  injury,  which  defendant  failed  to  pro- 
vide, thereby  causing  the  injury.  South  Sf 
N.  Ala.  R.  Co.  V.  Chappell,  61  Ala.  527. 


A  plaintiff  is  entitled  to  recover  upon  a 
complaint  setting  forth  two  counts,  one  for 
being  wrongfully  ejected  from  a  train,  ;ind 
one  for  being  misdirected  in  regard  to  his 
train,  though  the  latter  only  of  these  counts 
be  proved.  Alabama  G.  S.  R.  Co.  v.  Heddle- 
ston,  31  A/n.  &•  Eng.  R.  Cas.  116,82  Ala. 
218,  3  So.  Rip.  53. 

An  action  against  a  common  carrier  for 
negligence  in  the  performance  of  its  duty  as  a 
carrier  under  a  contract  to  carry  is  an  action 
upon  the  case  ex  delicto  and  may  be  joined 
with  a  count  in  trover  or  trespass  vi  et 
armis  ;  but  if  the  action  be  for  negligence 
alone  under  the  contract  to  carry,  or  if  the 
counts  in  trover  or  trespass  vi  et  armis  be 
abandoned,  plaintiff  cannot  repudiate  the 
contract,  either  expressed  or  implied,  under 
which  the  carrier  received  the  goods,  and 
recover  for  an  unlawful  tiiking.  Southern 
Exp.  Co.  V.  Palmer,  48  (7^. 85.— Following 
Southern  Exp.  Co.  v.  Shea,  38  Ga.  519; 
Cohen  v.  Southern  Exp.  Co.,  45  Ga.  148. 

The  first  count  in  plaintiff's  declaration 
was  for  damages  for  negligently  setting  fire, 
from  a  locomotive,  to  plaintiff's  property. 
The  second  count  alleged  the  granting  to 
defendant  of  a  right  of  way  on  condition 
that  it  should  make  and  keep  in  repair  suit- 
able fences,  which  it  failed  to  do,  whereby 
cattle  destroyed  plaintiff's  crops.  Held,  that 
both  counts  were  in  tort  and  therefore 
properly  joined.  Philadelphia,  IV  &*  B.  R. 
Co.  V.  Constable,  39  Md.  149,  11  ^Im.  Ry. 
Rep.  276. 

In  an  action  against  a  railroad  company 
to  recover  damages  for  a  personal  injury 
plaintiff  may  set  forth  his  case  in  different 
ways  in  different  counts,  charging  defend- 
ant with  running  upon  liiin  while  he  was  in 
the  highway,  with  committing  an  assault 
and  battery  upon  him,  and  with  compelling 
him  to  leap  from  the  car  while  it  was  in 
motion,  whereby  he  was  thrown  down  and 
injured.  Lovett  v.  Salem  &»  S.  D.  R.  Co.,  9 
Alien  (.Mass.)  557. 

A  count  in  contract  for  non-delivery  of 
goods  may  be  joined  with  a  count  in  tort 
for  a  misdelivery  if^there  is  a  doubt  as  to 
the  le!;al  effect  of  the  facts  relied  iip(}n  to 
maintain  tlie  action.  Mahon  v.  Blake,  125 
Mass.  477. 

In  trespass  by  a  passenger  for  expulsion 
from  a  train  at  a  place  not  a  rey;iilar  sta- 
tion for  non-payment  of  fare  the  first  count 
charged  that  the  trespass  was  committed  by 
defendant   corporation,  while    the    second 


■'fe  •■■• 


# 


n--n 


1000 


PLEADING,  34,  35. 


I 


It' 


hp 


•    \i,i 


' 


im 


averred  that  defendant  by  its  conductor 
toinniiltcd  the  trespass.  //<7(/,  not  a  mis- 
joinder of  counls,  as  they  cliar^e  a  single 
trespass  l)y  defendant.  Illinois  C,  A'.  Co.  v. 
I.ittiiiur,  128  ///.  163.  21  A".  A",  /w/.  7;  rt/- 
firmiuii  28  ///.  ////.  552. 

Under  the  Missouri  Code  a  count  inequity 
lo  set  aside  a  release  of  damages  for  per- 
sonal injuries  may  be  joined  with  a  count  at 
law  for  the  recovery  of  the  damages.  lUair 
V.  ChiCiXf^o  &>  A.  R.  Co.,  89  Mo.  383,  1  S.  W. 
Kep.  350. 

A  complaint  which  seeks  to  enjoin  the 
operation  of  an  elevated  railroad  in  a  street 
and  to  recover  damages  which  alleges  that 
plaintifis  are  eiuitied  lo  liglit  and  air  from 
the  street  both  becaiisi-  they  are  the  owners 
of  the  fee  of  the  street,  and  because  they 
are  abutting  owners,  and  therefore  liavc  an 
casement  in  the  light  and  air  coming  from 
the  street,  is  not  bad  as  uniting  inconsistent 
claims.  Sobel  v.  i\'erv  York  El.  R.  Co.,  31 
N.  Y.  S.  R.  1 14,  56  Huh  642,  9  A^  J'.  Supp. 

342. 

A  complaint  against  a  company  for  failing 
to  construct  a  farm  crossing  contained  two 
counts,  the  first  based  upon  a  covenant  con- 
tained in  a  deed,  and  the  second  upon  a 
statute  requiring  companies  to  construct 
such  crossings.  Held,  that  tiie  two  counts 
were  each  for  a  separate  cause  of  action  and 
therefore  not  inconsistent,  and  the  court 
properly  refused  to  compel  plaintiff  to  elect 
upon  which  he  would  rely.  Hayiies  v.  ///(/"- 
falo,  N.  Y.  &•  P.  R.  Co.,  38  Hun  (A'.  1'.) 

«7- 

Counts  in  assumpsit,  in  tort,  and  upon  the 
facts  of  the  case  may  be  joined  in  one  dec- 
laration under  Tenn.  Code,  ^§  2746-2748. 
Louisville  &»  N.  R.  Co,  v.  Guthrie,  10  Lea 
( Tenn.')  432. 

34.  AVIiat  counts  may  not  be 
JoiiHMl. — A  shippercannot  unite  in  one  ac- 
tion against  a  carrier  two  counts,  one  for 
<lamagi's  for  the  detention  of  the  property 
and  the  other  leased  upon  a  contract.  Hoag- 
LxHii  v.  llannilhxl  &^  St.  J.  R.  Co.,  39  Mo. 
451.— OvKKKUi.KiJ  IN  House  z/.  Lowell,  45 
Mo.  3S1. 

PlaintilT  in  tlie  firstr  two  counts  of  his 
complaint  i-laimed  damages  against  a  rail- 
road for  killing  his  animals,  through  its 
failuri!  to  fence,  and  for  the  conversion  of 
said  animals, and  in  the  third  count  claimed 
damages  for  t)reach  of  contract  10  carry 
cattle  safely,  the  damage  and  loss  resulting 
by  reason  of  weak  and  insufficient  cars,  and 


the  conversion  of  such  cattle  as  were  killed, 
and  also  putting  his  claim  upon  the  com- 
pany's liability  as  u  common  carrier.  Held, 
that  the  third  count  was  bad  on  demurrer 
as  a  joinder  of  an  action  arising  out  of  con- 
tract with  an  action  in  trover.  Colwell  v. 
Nnv  York&'E.  R.  Co.,  9  Htnu.  Pr.  (A'.  Y.) 

3"- 

35.  What  iiinttcrHiiiaybu  iiicliiiled 
in  oiiu  vomit. — A  declaration  that  con- 
tains a  single  count  which  sets  out  eight 
interest  coupons,  for  a  certain  amount  each, 
only  distinguished  from  each  other  by  a 
reference  to  the  numbers  of  the  diflferent 
b(jnds  from  which  they  were  detached,  is 
not  bad  for  duplicity;  and  where  each  cou- 
pon is  less  than  the  amount  necessary  to 
give  the  court  jurisdiction,  they  may  be 
aggregated  for  that  purpose,  Neiu  London 
City  Nat.  Jiank  \.  Ware  River  R.  Co.,  41 
Conn.  542.— Quoting  Hotchkiss  ?/.  Butler, 
18  Conn.  287.  Rkviewing  Tucker  w.  Ran- 
dall, 2  Mass.  283. 

But  where  the  bonds  from  which  such 
coupons  were  detached  are  under  seal,  a 
count  in  assumpsit  to  recover  such  interest 
cannot  be  added.  New  London  City  Nat. 
Bank  v.  Ware  River  R.  Co.,  41  Conn.  542. 

In  a  suit  to  enjoin  the  collection  of  a 
township  tax  levied  to  aid  a  railroad,  it  is 
good  pleading  to  state  in  a  single  paragraph 
all  the  facts  leading  to  and  resulting  in  the 
levy  of  the  tax,  and  then  to  set  forth  in  the 
same  paragraph,  but  in  separately  numbered 
clauses  or  specifications,  each  several  ground 
of  objection  to  the  validity  of  the  tax,  and 
the  sutFiciency  of  each  clause  or  specifica- 
tion may  be  tested  by  a  demurrer  for  the 
want  of  facts.    Scott  v.  HansAeer,  94  /nd.  i. 

Injuries  both  to  the  person  and  to  prop- 
erty are  properly  included  in  one  count  for 
damages  when  the  cause  of  all  the  injuries 
was  the  same.  Lamb  v.  St.  Louis  C.  6-  W. 
R.  Co.,  33  Mo.  App.  489.— Quoting  Bin- 
nicker  V.  Hannibal  &  St.  J.  K.  Co.,  83  Mo. 
660. 

The  obvious  purpose  of  a  pleader  to  al- 
lege special  damages  will  not  be  controlled 
by  the  mere  fact  that  he  commences  each 
allegation  as  if  it  were  a  new  count.  So 
held,  where  plaintiH  sued  a  carrier  for  fail- 
ing to  transport  certain  bags  which  were  to 
be  tilled  with  corn  and  sent  back  to  him,  liy 
reason  of  which  he  claimed  special  damages 
in  having  to  pay  an  additional  sum  for  bar- 
rels to  put  the  corn  in.  and  in  lia\  iiii.^  to 
pay  more  for  the    coin   and  a  lii^lioi  fii>iu;lit 


PLEADING,  30-30. 


1001 


vere  killed, 
I  tlie  corn- 
ier. Held, 
1  demurrer 
out  of  con- 
Colwell  V. 
'V.  (A'.  K.) 

iiiuliided 

that  con- 
out  eight 
lounteach, 
ather  by  a 
e  different 
ctnclied,  is 
i.  each  cou- 
jcessary  to 
:y  may  be 
t"7f  London 
R.  Co.,  41 
s  V.  Butler, 
cer  V.  Ran- 

rhicli  such 
der  seal,  a 
ch  interest 

City  Nat. 
'onn.  542. 

tion  of  a 
road,  it  is 

paragraph 
ting  in  the 
Drth  in  the 

numbered 
:ral  ground 
e  tax,  and 

specifica- 
er  for  the 

94  Ind.  I. 
d  to  prop- 
count  for 
he  injuries 
S  C.  Sr*  IV. 
riNG  Bin- 
83  Mo. 

ader  to  al- 
controUed 
;nces  each 
ount.  So 
tx  for  fail- 
ch  were  to 
to  him,  by 
il  damages 
m  for  bar- 
liMviiiiL;  to 
101  fi«'i''ht 


rate,    liurmide  v.  Grand  Trunk  K.  Co,,  47 

N.  n.  554. 

A  count  declaring  upon  the  negligence  of 
defendant,  whereby  plaintiff  and  his  wife 
were  injured  in  the  same  accident,  and 
claiming  damages  for  the  injury  to  plaintiff 
himself,  and  also  for  the  loss  of  his  wife's 
services,  is  not  bad  for  duplicity.  Devino 
V.  Central  Vt.  R.  Co.,  63  Vt.  98,  20  /Itl. 
Rep.  953. 

;iO.  Election  between  counts.— A 
com[)iaint  in  an  action  for  killing  plaintiff's 
horses  contained  two  counts :  first,  neglect  to 
kec|)  in  repair  a  fence  according  to  contract; 
second,  negligence  in  running  the  train. 
Held,  that  a  motion  to  require  plaintiff  to 
elect  whether  he  would  rely  upon  the  breach 
of  contract  or  the  tort  was  properly  over- 
ruled. Pittsburgh,  C.  &*  St.  L.  R.  Co.  v. 
Hedges,  41  0/tio  St.  233. 

U  nder  a  declaration  containing  two  counts, 
each  alleging  a  single  burning  of  plaintiff's 
property  near  defendant's  track,  proof  of 
more  than  two  fires  may  be  given,  and  the 
court  may  afterwards  require  plaintiff  to 
elect  upon  which  he  will  rely.  Chicago  (S- 
A.  R.  Co.  V.  Smith,  10  ///.  App.  359. 

37.  WlthdrawiU  of  counts.— Plain- 
tiff sued  for  an  injury  to  stock,  and  filed  a 
declaration  in  two  counts.  The  first  was  in 
due  form  and  stated  the  county,  state,  and 
term  of  court,  the  names  of  the  parties,  and 
the  nature  of  the  action,  etc.  The  second 
count  commerced,  "  And  whereas,  also,  the 
said  defendant  before  and  on  the  day  afore- 
said, in  the  county,  was  a  railroad  corpora- 
tion," etc.  At  the  trial  the  first  count  was 
withdrawn.  Held,  that  it  was  still  a  part  of 
the  declaration  so  far  as  it  contained  a  state- 
ment of  the  time,  place,  etc.,  of  the  occur- 
rence so  as  to  make  the  second  count,  by 
reference  thereto,  complete.  Cleveland,  C, 
C.  (S-  .S7.  L.  R.  Co.  V.  Riee,  48  ///.  App.  51. 

;J8.  Prayer  for  relief.  —  Where  the 
<l(!claration  sets  forth  a  cause  of  action  and 
liiys  damages  in  general  terms,  it  is  not 
vitiated  by  a  clause  which  sets  up  that  "  the 
entire  injury  is  to  her  peace,  happiness,  and 
feelings,"  although  this  theory  of  the  injury 
be  incorrect.  The  action  is  maintainable 
for  the  real  injury  embraced  in  the  facts  set 
out  in  the  declaration.  Cox  v.  Richmond 
&^  D.  R.  Co..  87  Gil.  747,  13  .v.  /:.  Rep.  827. 

Where  the  action  is  based  upon  tort,  an 
averment  that  the  act  complained  of  re- 
sulted in  "  damage  tf)  the  plaintiff,"  in  a 
Sum  specified,  is  sufficient  in  a  prayer  for 


relief.     Louisville,  N.  A.   &*   C.  R.   Co.  v. 
Smith,  58  /nd.  575,  19  Atn.  Ry.  Rep.  18. 

Under  Mo.  Rev.  St.  i?  809,  though  it 
would  be  more  formal  to  conclude  each 
count  with  a  prayer  for  the  amount  entitled 
to  be  recovered  under  it,  it  is  immaterial  if 
each  count  contains  a  statement  of  the 
amount  entitled  to  be  recovered  under  it 
and  the  concluding  count  prays  judgment 
for  the  aggregate  amount,  the  concluding 
paragraph  being  regarded  part  of  each  count. 
Rriggs  V.  Missouri  Pac.  R.  Co.,  82  Mo.  37. 

3.  Plea.    Answer. 

39.  General  rules.— Where  a  railroad 
company  in  answer  to  an  action  to  recover 
the  value  of  animals  killed  by  its  machinery 
desires  to  set  up  the  fact  that  its  road  is  in 
the  possession  of,  and  being  operated  by,  a 
receiver  appointed  by  a  federal  court,  the 
answer  should  be  accompanied  by  the  origi- 
nal or  a  copy  of  the  order  of  the  latter  court 
for  the  appointment  of  the  receiver.  Ohio 
6-  M.  R.  Co.  V.  Fitch,  20  Ind.  498. 

But  for  the  opposite  holding,  see  Ohio 
&»  M.  R.  Co.  V.  Anderson,  10  ///.  App.  313. 

A  corporation  aggregate  must  make  its 
answer,  not,  as  in  common  cases,  under  oath, 
but  under  the  common  seal ;  and  if  a  sworn 
answer  is  desired,  some  ofl^cer  of  the  cor- 
poration must  be  made  a  defendant  who  can 
answer  under  oath.  Fulton  County  Sup'rs 
V.  Mississippi  &•  W.  R.  Co.,  21  ///.  338.— 
Quoting  Fulton  Bank  v.  New  York  &  S. 
Canal  Co.,  i  Paige  (N.  Y.)  311. 

Where  an  inevitable  accident  is  relied 
upon  as  a  defense,  all  the  facts  which  it  is 
contended  constitute  such  accident  m  ist  be 
stated.  Burns  v.  Cork  <S-  B.  R.  Co.,  13  Ir. 
R.  C  L.  543. 

Where  several  defendants  are  charged  as 
common  carriers  in  case,  and  they  plead, 
traversing  only  the  delivery  to  them  of  the 
parcel,  without  saying  "or  any  or  either  of 
them,"  the  plea  is  good.  Parke  v.  Davis,  6 
U.  C.  Q.  B.  411. 

There  is  no  authority  for  allowing  a  cor- 
poration to  file  an  answer  without  seal  ex- 
cept by  consent.  Gildersleeve  v.  Wolfe  Is- 
land R.  &'  C.  Co.,  3  Chan.  Chamb.  (U.  C.) 

3S8. 
Where  a  stay  of  proceedings  is  asked  to 

enable  defendants  to  apply  at  law  for  a  man- 
damus to  compel  the  head  of  a  railway  cor- 
poration to  affix  the  corporate  seal  to  an 
answer,  but  it  is  not  shown  that  the  ma- 
jority of  the  shareholders  approved  of  the 


■ 


w 


2 


,1 

i: 

ies^f" 

§;; 

P 

H^"" 

({^■' '" 

II^B  «* 

#'" 

W^'' 

jla<«>> 

IHHt#' 

!H^»' 

Ml 

ll«»^ 

Hi 


1002 


PLEADING,  40-42. 


answer,  the  application  will  he  refused  witli 
costs.  GililetsUiTe  v.  IVolfr  Island  A'.  Sf* 
C.  Co.,  3  C/ian.  Chamb.  (U.  C.)  358. 

40.  Time  to  plcud.  — WliLif  a  stock- 
holder after  the  entry  of  a  jud^jmcnt  ajjainst 
his  company,  but  at  the  same  term,  is,  upon 
his  motion  and  good  cause  shown,  made  a 
party  defendant  with  leave  to  file  an  answer, 
and  tuoroupon  answers  to  the  merits,  (^ives 
notice  of  appeal,  and  perfects  his  appeal  to 
the  circuit  court,  it  is  error  in  the  appellate 
court  to  strike  from  the  files  and  suppress 
such  answer  because  of  its  having  been  tiled 
after  jud^rment.  Henry  v.  Jeans,  48  Ohio 
St,  443,  28  N.  E.  Rep.  672.— DiSTiNOUiSH- 
ING  Holbrook  V.  Connelly,  6  Ohio  St.  199. 

41.  Pica  ill  abatement,  generally.— 
Where  the  representative  of  a  railroad  cor- 
poration is  served  with  process,  he  may  plead 
in  abatement  in  his  own  name  that  the  cor- 
poration is  extinct ;  or  he  may  make  the 
same  defense  by  motion  to  dismiss  the  suit, 
or  by  suggestion  of  his  attorney  on  record, 
sujiported  by  affidavits  showing  the  facts. 
Kelley  v.  Mississippi  C.  A'.  Co.,  2  Flipp.  (U. 
S.)  581.  I  Fed.  Kep.  564.— QuoTiNd  East 
Tenn.  &  G.  F<.  Co.  v.  Evans,  6  Heisk.  (Tenn.) 
607.  Reviewing  Uronson  v.  La  Crosse  & 
M.  R.  Co.,  2  Wall.  (U.  S.)  283. 

Such  person  may,  by  plea,  deny  that  he 
sustains  any  such  relation  to  the  corpora- 
tion as  authorizes  the  service  of  process  on 
him.  Kelley  v.  Mississippi  C.  K.  Co.,  2 
Flipp.  (U.  S.)  581,  I  Fed.  Kep.  564. 

In  an  action  on  contract  agiiinst  a  com- 
pany objection  to  the  jurisdiction  because 
it  did  not  have  its  principal  office  or  place 
of  business  in  the  county  where  sued,  and  be- 
cause its  chief  officer  did  not  reside  therein, 
is  waived  by  answer  to  the  merits  of  the  ac- 
tion. When  the  residence  of  the  chief  offi- 
cer of  a  corporation  created  by  the  laws  of 
the  stale,  and  its  principal  office  and  place 
of  business,  are  not  m  the  county  in  which  a 
transitory  action  is  brought  against  such 
corporation,  unless  the  facts  appear  in  the 
petition,  objection  to  the  jurisdiction  of  the 
court  over  the  person  of  defendant  cannot 
be  made  by  demurrer.  Such  objection  must 
be  made  by  plea,  but  after  answer  to  the 
merits  such  plea  cannot  be  maintained. 
Baker  v.  Louisville  &*  N.  K.  Co.,  4  Bush 
(Ky.)  619.  — Followed  in  Chesapeake,  O. 
&  S.  W.  R.  Co.  V.  Heaih,  87  Ky.  651, 

Where  a  company  is  sued  for  damages 
for  appropriating  a  right  of  way  through 
plaintiti's  premises,  a  defense  of  an  arbitra- 


tion and  award  must  be  made  by  an  an- 
swer in  abatement,  and  not  by  a  motion 
to  dismiss.  Ilynes  v.  Sabula  A,  &*  1).  li. 
Co.,  38  Io7va  258. 

A  plea  of  the  bankruptcy  of  plaintifl  and 
the  transfer  of  his  property  and  rights  to  an 
assignee  after  the  coinmencement  of  the 
suit,  in  abatoniciit  of  the  action,  without  any 
prayer  of  any  kind,  is  subject  to  demurrer. 
Chicago  &*  N.  IV,  A'.  Co.  v.  Jenkins,  9  Am, 
^  Eng.  R.  Cas.  113,  103  ///.  588. 

A  plea  in  abatement  not  questioning  the 
jurisdiction  over  the  subject-matter,  but 
raising  a  personal  privilege  of  defendant  as 
to  the  venue,  should  aver  fully  not  only 
what  is  necessary  to  be  answered,  but  an- 
ticipate and  exclude  all  such  supposable 
matter  as  would  if  alleged  on  the  opposite 
side  defeat  the  plea.  Houston  &>  T.  C.  R. 
Co.  V.  Graves,  50  Tex.  181.— Reviewing 
Brecn  v.  Texas  &  P.  R.  Co.,  44  Tex.  304. 

42.  Plcadliif;  defect  of  particN.— 
An  answer  alleging  want  of  proper  parties  is 
the  correct  mode  of  raising  the  question  of 
fact,  where  a  plaintifT  suing  in  a  name  im- 
porting/);-/;««  yVi«'^  a  corporation  in  fact 
is  not  assuming  to  act  as  such,  but  only  as  a 
partnership,  Heaston  v.  Cincinnati  &•  F. 
W.  R.  Co.,  16  Ind.  27$. 

An  answer  in  an  action  against  a  railroad 
company  for  damages  alleging  that  subse- 
quent to  the  commencement  of  the  action 
plaintifT  had  been  adjudged  a  bankrupt,  and 
an  assignee  of  his  estate  appointed,  is  in- 
sufficient on  demurrer.  Pittsbury^  C  >* 
St.  L.  R.  Co.  v.  JVusum,  60  fnd  tier 

appeal  50  Ind.  141. 

To  constitute  a  sufficient  di  <c  to  an 
action  for  personal  injuries,  a  ran.,  ly  com- 
pany must  not  only,  under  a  statute  authi  '^- 
izing  the  reference  to  private  acts  by  title, 
substance,  and  date  of  approval,  in  plead- 
ings, plead  that  by  virtue  of  a  private  act 
referred  to  in  the  authorized  manner  it  had 
sold  its  road,  but  must  al.soshow  that  it  had 
complied  with  any  conditions  imposed  by 
the  statute  upon  the  sale,  e.  g.,  that  the  pur- 
chasing company  should  be  a  connecting 
but  not  a  parallel  or  competing  line.  East 
Line  &*  R.  R.  R.  Co.  v.  Rushing,  34  Am.  &* 
Eng.  R.  Cas.  367,  69  Tex.  306,  6  5.  W.  Rep. 

834- 

A  bill  was  filed  by  the  holders  of  deben- 
tures payable  to  bearer  to  enforce  payment. 
The  company  by  answer  objected  that  the 
person  to  whom  the  debentures  were  issued 
was  a  necessary  party  to  the  suit,  but  did 


I 


PLEADING,  43-45. 


1003 


e  by  an  an* 
y  a  motion 
/.  6-  //  A\ 

plaintiiT  and 
riglits  to  an 

ncnt  of  the 
without  any 

o  demurrer. 

nkins,  9  Atn, 

stioning  tiie 
■matter,  but 
lefendant  as 
lly  not  only 
red,  but  an- 
supposable 
the  opp(jsite 

&-  T.  C.  A\' 
-Reviewing 

Tex.  304. 

imrtlcM.— 
^er  parties  is 

question  of 

a  name  im- 
Ation  in  fact 
but  only  as  a 
nnati  &»  F. 

ist  a  railroad 
;  that  subse- 
f  the  action 
iinkrupt,  and 
linted,  is  i'i« 
iirx  C  r* 
Her 

.>e  to  an 
an  way  con\ 
itute  authi  - 
acts  by  title, 
al,  in  plead- 
a  private  act 
anner  it  had 
IV  that  it  had 
imposed  by 
that  the  pur- 
i  connecting 
i  line.  East 
J,  34  Am.  &* 
}S.  W.Kep. 

:rs  of  deben- 
'ce  payment, 
ted  tiiat  the 
>  were  issued 
suit,  but  did 


not  name  the  person.  Held,  that  the  com- 
pany must  be  presumed  to  know  who  this 
person  was;  that  there  was  no  presumption 
that  plaintifl  knew  him  ;  and  that,  the  per- 
son not  being  named  in  the  answer,  the  ob- 
jection could  not  be  insisted  on  at  the  hear- 
ing. Wooiiside  v.  Toronto  St.  R.  Co.,  14 
Grant's  Ch.(U.  C)  409, 

43.  Pica  of  uiiotlicr  action  pciid- 
llitf.— An  answer  of  a  former  action  pending 
must  state  or  show  identity  of  cause  of  ac- 
tion in  the  two  actions.  Wilson  v. St.  Pan', 
M.  &'  M.  A\  Co.,  44  Minn.  445.  46  A',  li: 
A'lfi.  909. 

Where  an  assignee  of  an  employe  sues  to 
recover  damages  for  an  injury,  an  answer 
that  the  assijjnor,  previous  to  the  assign- 
ment, commenced  an  action  for  the  same 
claim  in  his  own  name,  that  there  lias  been 
no  order  dismissing  it,  and  that  defendant 
has  not  stipulated  that  it  should  be  dis- 
missed, IS  not  sufficient  where  it  fails  toaver 
that  the  action  is  still  pending.  Hawley\. 
Chicago,  li.  &•  Q.  A'.  Co.,  71  Iowa  717,  29 
N.   W.  Rep.  787. 

The  defense  that  the  court  has  no  juris- 
diction of  an  action  against  the  trustees  in  a 
railroad  mortgage  for  breach  of  trust  and 
misapplication  of  the  funds  in  their  hands 
by  reason  of  the  pendency  of  another  suit  is 
not  available  unless  it  is  pleaded.  Hollister 
V.  Stewart,  38  Ant.  &*  Eng.  R.  Cas.  599,  1 1 1 
N.   Y.  644,  19  A'.  /:.  Rep.  "782. 

44.  PlcttM  ill  Imr,  gciicrnlly.— Where 
a  railroad  is  sued  for  a  personal  injury  and 
sets  up  matter  that  amounts  to  a  plea  in 
bar,  it  cannot  afterwards  plead  to  the  juris- 
diction f)f  the  court,  as  that  suit  was  brought 
in  the  wrong  district.  Texas  &>  P.  R.  Co. 
V.Saunders,  151  (/.  S.  105,  14  Sitp.  Ct.  Rep. 
257. 

A  declaration  charged  defendants  with 
obstructing  the  navigation  of  a  stream  by 
building  a  bridge  across  it.  The  ninth  plea 
— after  setting  out  the  incorporation  of  de- 
fendants and  the  powers  thereby  given  to 
them  to  cross  streams  provided  that  the 
free  and  uninterrupted  navigation  thereof 
should  not  be  interfered  with  by  their  rail- 
way— alleged  that  they  had  erected  the 
bridge  utuier  such  powers  for  the  purpose  of 
the  railway,  and  thereby  unavoidably  a  little 
impeded  the  navigation  for  a  short  time. 
IMi/.  bad,  ;is  showing  no  defense.  Snitra 
v.  C7reiit  IVes/ern  R.  Co. ,  13  I/.  C.  (J.  />'.  376. 
—Quoted  in  McArthur  v.  Northern  &  P. 
J,  R.  Co.,  17  Out.  App.  86. 


45.  The  ercncrnl  iNHiic— A  plea  which 
avers  that  "  the  allegations  contained  in 
said  complaint  are  untrue,"  or  "  denies  each 
and  every  allegation  contained  in  said  coni' 
plaint,"  is  no  more  lu^r  less  than  the  gen- 
eral issue.  Louisville  &*  A'.  R.  Co.  v.  Tratn- 
tnell.ijl  Ala.  350,  9  So.  Rep.  870.  — Ovr.R- 
kUl.lNG  Mobile  &  M.  R.  Co.  v.  Gilmer,  85 
Ala.  422;  Equitable  Accident  Ins.  Co.  v, 
Osborn,  90  Ala.  201. 

A  plea  of  the  general  issue  in  a  suit 
brought  by  a  corporation  admits  the  cor- 
porate existence  of  the  plaintilT  and  the 
right  to  sue  ;  and  if  the  act  creating  the  cor- 
poration and  defining  its  powers  is  a  public 
law,  the  court  is  bound  to  take  judicial 
notice  of  it,  and  also  judicially  know 
whether  the  corporation  has  the  power  to 
make  such  a  contract  as  is  statefl  in  the 
declaration.  Aldermen,  etc.,  v.  I'inley,  10 
Ark.  423.  Dunning  v.  A'ew  Albany  &•  S.  R, 
Co.,  2  Ind.  437. 

Hut  an  allegation  in  a  complaint  that  de- 
fendant is  an  incorporated  company  is  not 
put  in  issue  by  a  general  denial,  and  the 
plaintitf  need  not,  under  such  circumstances, 
prove  the  incorporation.  Rembert  v.  South 
Carolina  R.  Co.,  39  Am.  Gf*  Eng.  R.  Cas.  252, 
31  So.  Car.  309,  9  S.  E.  Rep.  968. 

In  an  action  against  a  railroad  company, 
an  allegation  that  it  was  consolidated  with 
another  company  before  the  commencement 
of  the  action  need  not  be  specifically  denied, 
as  provided  by  Iowa  Rev.  §  2925,  but  a  gen- 
eral denial  of  each  and  every  allegation  of 
the  petition  makes  it  incumbent  ii[)on  plain- 
tiff to  [)rove  such  consolidation.  Sections 
2923,  2924,  2925  of  the  Revision,  providing 
that  an  allegation  of  corporate  capacity 
shall  be  taken  as  true  unless  denied  by  a 
s|)ecific  statement  of  the  facts  relied  upon, 
do  not  apply  to  an  allegation  of  consolida- 
tion. KooHs  V.  Chicago  &•  N.  W.  R.  Co.,  23 
Iowa  493. 

A  declaration  which  charges  defendants 
as  corporations  "owning,  occupying,  and 
doing  business  on  and  over"  a  certain  rail- 
road (naming  it),  "under  the  laws  of  the 
state  of  Michigan,"  is  not  open  to  the  ob- 
jection, under  the  plea  of  the  general  issue, 
that  it  does  not  allege  defendants  to  be  cor- 
porations, or  f)therwise  competent  to  he 
sued.  Grand  Rapids  <S^  /.  R.  Co.  v.  South- 
7i'ick,  30  Mich.  444. 

The  existi'iKX"  of  a  corporation  plaintiff  is 
not  put  in  issue  by  a  general  fleiiial  of  an  al- 
leged cause  of  action.     Dielrichs  v.  Lincoln 


1004 


PLEADING,  40-48. 


t  iL 


m 


H 


<  i  t 


ii 


&*  N.  W.  R.  Co.,  13  Neb.  43,  13  A'.  IV.  Rep. 

Most  matters  of  defense  to  actions  on  the 
case  against  common  carriers  may  be  given 
in  evidence  under  the  general  issue,  and  it 
is  seldom  a<lvisable  to  resort  to  a  special 
plt-a.     HoyI  v.  Allen,  2  /////  (A'.  Y.)  322. 

Where  an  action  is  to  recover  damages 
for  a  collision  with  plaintiff's  horse  and 
wagon,  and  the  complaint  cliarges  that  it 
was  caused  by  the  negligence  of  defendant's 
employes,  an  answer  denying  "every  allega- 
tion in  the  complaint  "  is  sufficient  to  put  in 
issue  defendant's  liability  ;  and  it  is  not  nec- 
essary to  allege  that  tlie  injury  was  caused 
by  other  persons  for  whose  acts  defendant 
is  not  liable.  Schular  v.  Hudson  Rivet  R. 
Co.,  38  Biirb.  (N.  Y.)  653. 

A  plea  setting  up  a  diflerent  contract  from 
the  one  declared  on  is  bad  as  amounting  to 
the  general  issue.  Kimball  v.  Boston,  C.  &* 
M.  R.  Co.,  \iAm.  &'  Eng.  R.  Cas.  55.  55  Vt. 

95- 
40.   Nou   est  factiiiu.  —  Defendants, 

railway  corporations,  pleaded  as  to  certain 
agreements  alleged  to  have  been  made  bv 
them  under  seal  that  the  alleged  deeds  were 
not  their  deeds,  and  that  they  did  not  un- 
dertake and  promise  as  alleged.  Held,  that 
under  Rev.  St.  c.  94,  §  152,  an  objection 
could  not  under  these  pleas  be  taken  to  the 
authenticity  of  the  seals  affixed  to  the  agree- 
ments as  the  seals  of  defendant  companies. 
Gregory  v.  Halifax  Sm  C.  B.  R.  <S-  C.  Co., 
16  Nov.  Sc.  436. 

47.  Niil  ticl  corporation. — Where  a 
suit  IS  brought  by  a  domestic  corporation 
created  by  a  public  law  of  which  the  courts 
take  judicial  notice,  a  plea  of  nul  tiel  corpo- 
ration is  bad  on  demurrer,  or  on  motion  to 
strike  out ;  but  if  the  statute  creating  the 
corporation  requires  something  to  be  per- 
formeil  as  a  condition  precedent  to  its  ex- 
istence, the  plea  is  good,  and  ]>laintiff  must 
reply  a  performance.  Hammett  v.  Little 
Roik  ^  iV.  A'.  Co.,  zo  Ark.  204. 

Where  an  express  company  is  sued  as  a 
corporation,  a  plea  in  abatement  in  the  name 
of  certain  individuals  admitting  that  they, 
"  together  with  others,"  were  doing  business 
uiuler  the  name  by  which  they  were  sued, 
but  denying  the  existence  of  a  corporation, 
is  bad  as  failing  to  disclose  the  names  of 
the  persons  who  are  designated  as  "  otliers." 
American  Ext).  Co.  v.  Haggard,  37  ///.  465. 

To  a  suit  by  a  corporalion  there  may,  at 
it*  fommeiuenicnt,  be  an  answer  of  mil  tiel 


corporation ;  but  such  answer  is  in  abate- 
ment, and  must  ^recede  an  answer  to  the 
merits ,  and  on  the  trial  of  the  issue  formed 
on  such  answer  the  proof  is  limited  to  the 
question  of  the  existence  </?/«<•/<»  of  a  cor- 
poration under  an  authority  sanctioning 
such  a  corporation  de  jure.  Heaston  v. 
Cincinnnti  &*  Ft.  IV.  R.  Co.,  \6  Ind.  275. 

If  the  answer  denies  the  existence,  at  the 
commencement  of  the  suit,  of  a  corporation 
which  is  shown  to  have  once  existed,  it 
must  particularly  set  forth  the  manner  in 
which  the  corporate  powers  ceased.  Heas- 
ton V.  Cincinnati  &*  Ft.  11^.  R.  Co.,  16  Ind. 
275. 

A  denial  of  the  plaintiff's  corporate  exist- 
ence may  in  some  instances  be  a  plea  in 
bar;  but  when  establishing  the  truth  of  the 
plea  will  not  authorize  a  judgment  that  will 
bar  a  future  action,  but  will  abate  the  pres- 
ent action,  the  plea  is  in  abatement.  Oregon 
C.  R.  Co.  V.  Wait,  3  Oreg.  92,  6  Am.  Ry. 
Rep.  517. 

When  the  name  and  description  of  plain- 
tiff corporation  leave  no  doubt  of  its  iden- 
tity as  the  corporation  entitled  to  sue  the 
cause  of  action,  the  objection  that  it  has  not 
sued  by  its  proper  corporate  name  cannot 
be  taken  under  the  general  issue,  or  by  plea 
of  nul  tiel  corporation,  but  only  by  plea  in 
abatP  ••".nt.  Woonsocket  Union  R.  Co.  v. 
She    iCM,  8  R.  I.  564. 

Under  New  York  Code  the  corporate 
existence  of  a  plamtifT  need  not  be  proved 
at  the  trial,  where  the  answer  contains  no 
affirmative  allegation  that  plaintiff  is  not  a 
corporation.  Dry  Dock,  E.  B.  &*  B.  R.  Co. 
V.  Nort/t  <S-  E.  R.  R.  Co.,  22  N.  Y.  Supp. 
556,  51  v.  Y.  S.  R.  771,  3  Misc.  61. 

4H.  Spt'cial  plciiN,  {jfciicrally.  —  A 
declaration  alleged  that  defendant,  a  rail- 
road comprny,  was  bound  to  keep  in  repair 
a  certain  highway  at  a  point  where  it  crossed 
the  railroad,  and  that  plaintiff  in  travel- 
ing upon  the  highway  was  injured  by  its 
defective  condition  at  that  point.  Defend- 
ant pleaded  specially  (i)  that  the  highway 
was  not  a  legally  laid  out  one  ;  (2)  that  if  it 
was  it  was  laid  out  many  years  after  the 
railroad  was  constructed.  The  court  or- 
dered defendant  to  plead  the  general  issue 
instead  of  the  special  pleas,  on  the  ground 
that  they  amounted  to  the  general  issue. 
Di'ft-ndant,  instead  of  thus  pleading,  after- 
wards filed  a  demurrer  to  the  declaration, 
whicli  the  court  heard  and  overruled.  Held: 
(1)  that  the  first  special  plea  ainoui.ted  to 


PLEADING,  49-61. 


1005 


in  abate- 
ver  to  the 
ue  formed 
ted  to  the 
0  ot  a  cor- 

nctioning 
ieaston  v. 
Hd.  275. 
ice,  at  the 
arporation 
existed,  it 
Tianner  in 
d.  Heas- 
0.,  16  Itui, 

rate  exist- 
a  plea  in 
utli  of  the 
t  that  will 
the  pres- 
t.  Oregon 
)  Am.  Ry. 

11  of  plain- 
f  its  iden- 
to  sue  the 
it  has  not 
e  cannot 
or  by  plea 
by  plea  in 
R.   Co.  V. 


o 


corporate 
be  proved 
mtains  no 
fT  is  not  a 

•  B.  R.  Co. 
.  Y.  Supp. 

lily.  —  A 

nt,  a  raiU 
p  in  repair 
it  crossed 
in  travel- 
red  by  its 
Defend- 

•  highway 
)  that  if  it 

after  the 
court  or- 
lerpl  issue 
le  ground 
:ral  issue, 
ing,  after- 
iclaration, 
;«l.  Held: 

OUntcd  to 


the  general  issue,  and  was  properly  rejected ; 
(2)  that  the  second  plea  contained  matter  of 
avoidance,  and  should  have  been  allowed 
to  stand ;  (3)  that  its  disallowance  was  not 
a  matter  of  discretion,  but  was  an  error ; 
(4)  that  if  defendant  was  to  be  regarded  as 
having  been  in  contempt,  by  reason  of  not 
obeying  the  order  of  ine  court,  to  plead  the 
general  issue,  the  ".cceptance  of  the  demur- 
rer by  the  court  was  a  waiver  of  the  order 
and  healed  the  contempt.  Allen  v.  New 
Haven  Gf  N.  Co.,  10  Am,  &*  Eng.  R.  Cas. 
298,  49  Conn.  243. 

Where  the  action  is  for  personal  injuries, 
and  the  company  files  a  special  plea  that 
subsequent  to  the  injury  defendant  agreed 
to  employ  plaintiff,  and  that  he  agreed  not 
to  sue  for  the  injury,  such  plea  is  defective 
where  it  fails  to  allege  what  services  were 
paid  for,  or  how  much  was  paid,  or  to  whom 
plaintiflT  agreed  that  he  would  not  sue,  and 
where  it  does  not  disclose  the  nature  of  the 
defense  aimed  at,  whether  for  accord  and 
satisfaction,  covenant  not  to  sue,  or  estoppel. 
Brunswick  &*  IV.  R.  Co.  v.  Clem,  80  Ga.  534, 
7  S.  E.  Rep.  84. 

In  an  action  by  a  passenger  against  a 
carrier  for  negligence,  where  the  allegations 
of  the  petition  are  such  as  to  involve  the 
issue,  it  is  not  necessary  to  plead  specially 
that  the  injury  occurred  through  the  act 
of  God.  Evidential  facts  should  not  be 
pleaded.  Gillespie  v.  St.  Louis,  K.  C.  &*  N. 
R.  Co.,  6  Mo.  App.  554. 

49.  Plea  of  Justification. --An  action 
was  brought  against  a  railroad  company 
alleging  that  an  infant  had  been  injured 
through  the  negligence  of  defendant's  ser- 
vants in  not  locking  or  securing  a  turn- 
ti  ble.  Held,  that  a  plea  which  admitted 
that  a  child  was  inji'.ccd  by  a  turntalilc 
belonging  to  and  used  by  defendant  at  the 
time  and  place  alleged,  but  denied  that  de- 
fendant was  at  fault  or  nt'gli.t!eni,  was  not 
a  plea  of  justification.  To  constitute  a  plea 
of  justification  the  facts  alleged  must  be  such 
as  are  not  admissible  under  the  plea  of  the 
general  issue.  Chapman  v.  Atlanta  C^  IV. 
P.  R.  Co.,  74  Ga.  547. 

A  plea  setting  up  the  charter  of  defend- 
ant, authorizing  it  to  construct  and  operate 
a  railroad,  is  no  justification  for  ihe  injury 
complained  of,  although  it  be  averred  in  the 
plea  that  the  company  constructed  its  rail- 
road upon  its  own  lands,  with  reasonable 
care  and  prudence,  doing  no  unnecessary 
damage  to  the  property  of  others.     Costiga.'i 


v.  Pennsylvania  R.  Co.,  54  A'^  /.  L.  233,  23 
Atl.  Rep.  810. 

no.  Plcadiii};  matter  in  eoiifi>>sMioii 
and  avoid  a  life.— In  an  action  for  injury 
to  stock  sliiinjcd  on  the  company's  cars,  the 
company  answered  "that  plaintiff  received 
the  stock  from  defendant  in  good  condition, 
and  paid  the  freight  thereon,  and  gave  de- 
fendant no  notice  that  said  stock  was  not 
delivered  to  him  in  good  order,  and  made 
no  demand  for  any  damages  on  account  of 
any  injuries,  o  supposed  injuries,  to  said 
stock."  Heir,  "n  demurrer,  that  the  an- 
swer was  not  good  in  confession  and  avoid- 
ance, and  at  best  could  be  deemed  only  an 
argumentative  denial.  0/iio  &*  M.  R.  Co, 
V.  Nicklejs,  73  Ind.  382. — DiSTiNGUlSHKD 
IN  Hicks  V.  International  &  G.  N.  R.  Co., 
62  Tex.  38. 

Where  an  employe  riding  as  a  passenger 
was  killed  in  a  collision,  and  in  an  action 
therefor  the  defendant  pleads  that  the  col- 
lision took  place  solely  through  the  negli- 
gence of  its  servants  who  were  fit  and  com- 
petent persons,  and  that  such  negligence 
was  wholly  unauthorized  by  the  company, 
and  without  its  leave  or  knowledge,  such 
plea  does  not  amount  to  the  general  issue. 
Hutchinson  v.  York,  N.  <S-  B.  R.  Co.,  5  E.r. 
343,  14  /ur.  837,  19  L.  J\  Ex.  296,  6  Railw. 
Cas.  580.— Questioned  in  Morgan  v.  Vale 
of  Neath  R.  Co..  33  L.  J,  Q.  B.  260,  12  W. 
R.  1032. 

In  an  action  tor  the  loss  of  goods,  de- 
fendant's plea  that  it  gave  notice  to  plaintiff 
viiat  it  would  not  carry  any  package  con- 
taining several  parcels  addressed  to  several 
parties  unless  the  addresses  and  contents 
•yere  declared,  and  that  it  would  not  be  re- 
sponsible unless  such  declaration  was  made, 
and  that  each  of  the  packages  alleged  to 
have  been  lost  contained  several  parcels 
add:es&ed  to  and  intended  for  different  per- 
sons, and  that  the  addresses  and  contents 
were  not  declared,  was  an  argumentative 
traverse  of  the  bailment  alleged  in  the  dec- 
laration. Crouch  V.  London  &•  N.  IV.  R. 
Co..  7  Ex.  705,  21  Z,.  /.  Ex.  207, 

In  an  action  against  carriers  for  delay  in 
carrying  goods,  a  plea  setting  up  special 
conditions  on  which  the  goods  were  re- 
ceived, exempting  defendant  from  liability, 
is  good.  Bates  v.  Great  IVestern  R.  Co.,  24 
U.C.  Q.  B.  544. 

51.  Plea  ot  contributory  neKli- 
{(enee.  —  Contributory  negligence  when 
pleaded   by  itself  is  an  admission  of  negli- 


1006 


PLEADING,  53-54. 


'5 


ILI 


gence  on  the  part  of  the  defendant,  but  not 
when  interposed  with  the  plea  of  not 
j;uilty.  Louisx'ille  &•  N.  R.  Co.  v.  Hall,  39 
Am.  &*  Eng.  li.  Cas.  298,  87  Ala.  708,  4  L. 
A'.  A.  710,  6  So.  R(p.  277. 

A  pica  averring  contributory  negligence 
is  no  answer  to  a  complaint  claiming  dam- 
ages for  injuries  alleged  to  have  been  wil- 
fully inflicted  by  defendant's  servants  while 
in  the  discharge  of  their  duties.  Alabama 
G.  S.  R.  Co,  V.  Frazier,  93  Ala.  45,  9  So.  Rep. 

303- 

Contributory  negligence  is  a  defense 
which  necessarily  implies  negligence  on  the 
part  of  the  defendant,  and  is  therefore  a 
plea  of  confession  and  avoidance.  Wat- 
kinih  v.  Southern  Pac.  R.  Co.,  38  Fed.  Rep. 
711. 

Where  a  child  four  or  five  years  old  sues 
for  a  personal  injury,  it  is  prima  facte  ex- 
empt from  responsibility,  and  if  the  com- 
pany wishes  to  set  up  contributory  negli- 
gence as  a  defense  it  must  plead  exceptional 
maturity  or  capacity  in  order  to  make  evi- 
dence admissible  tl:at  the  child  was  able  to 
take  care  of  itself,  when  the  question  of  its 
capacity  becomes  one  for  the  jury.  IVes/- 
brook  v.  Mobile  &*  O.  R.  Co.,  39  Am.  &* 
Eng.  R.  Cas.  374,  66  Miss.  560,  6  So.  Rep. 

32'- 

Where  a  company  sets  up  contributory 
negligence  ar>  a  defense  to  an  action  against 
it  for  an  injury  to  a  person  crossing  its  track, 
a  general  averment  in  the  answer  is  suffi- 
cient without  specifying  the  particular  acts 
constituting  the  contributory  negligence. 
Neierw.  Missouri  Pac.  R.  Co.,  {Mo.)  i  S.  IV. 
Rep.  387.— Approving  Schneider  v.  Mis- 
souri Pac.  R.  Co.,  7  J  Mo.  295;  Carlisle  v. 
Keokuk  N.  L.  Packet  Co..  82  Mo.  40. 

Though  contributory  negligence  be  not 
pleaded  in  an  answer,  yet  it  is  admissible  as 
a  defense  undt;r  a  general  denial,  the  rule 
being  that  the  fact  that  the  answer  sets  up 
a  number  of  defenses  other  than  contribu- 
tory negligence,  without  pleading  contribu- 
tory negligence  specially,  docs  not  preclude 
defendant  from  relying  on  such  defense  un- 
der the  plea  of  general  denisil.  Texas  &* 
P.  R.  Co.  V.  Pollard,  2  Tex.  App.  (Civ.  Cas.) 
424. 

Where  a  railway  company  is  sued  for  run- 
ning against  plaintiff's  carriage,  a  plea  that 
the  damage  was  the  result  of  negligence  of 
both  parties  amounts  to  the  general  issue 
and  is  bad.  Armitage  v.  Grand  Junction 
R.  Co.,  fi  n.  r.  C.  340,  3 .»/.  &*  IV.  244,  I  //. 


&^  H.  26.     5.  P.,  Wool/  v.  Beard,  2.  C.  &*  P. 

373- 

52.  Counterclaim.— Plaintiff  brought 
suit  to  recover  for  services  and  for  cost  of 
boarding  persons  employed  by  defendant 
company.  The  company  pleaded  a  coun- 
terclaim, which  the  court  struck  out  on  the 
ground  that  the  company  had  not  denied 
under  oath  the  correctness  of  plaintiff's 
verified  account.  Held,  error.  A  defendant 
is  entitled  to  plead  a  counterclaim  v/ithout 
denying  under  oath  the  justness  and  cor- 
rectness of  plaintiff's  verified  account.  Gal- 
veston, H.  &»  S.  A.  R.  Co.  V.  Schwartz.  2 
Tex.  App.  {Civ.  Cas.)  664. 

5:1.  Wlicii  an  answer  is  proper  or 
necessary. — In  a  suit  against  a  railroad 
company  it  may  be  designated  as  a  com- 
pany by  its  corporate  name  without  an  aver- 
ment of  its  corporate  capacity,  and  if  this 
is  disputed  it  should  be  by  answer,  and  not 
by  demurrer.  Stanly  v.  Richmond  &*  D.  R. 
Co.,  16  Am.  &>  Etig.  R.  ('as.  545,  89  A^.  Car. 
331.— FoLi.owEP  IN  Ramsay  v.  Richmond 
&  D.  R.  Co.,  91  N.  Car.  418. 

The  defense  of  accord  and  satisfaction 
should  be  interposed  by  answer  in  an  action 
upon  a  contract  to  furnish  materials  and 
labor  for  bridges  and  culverts.  It  cannot  be 
availed  of  on  motion  to  dismiss,  supported 
by  affidavit,  where  the  accord  is  disputed. 
George  v.  Chicago,  Ft.  M.  &*  D.  M.  R.  Co., 
85  /oTva  590,  52  A^.  IV.  Rep.  512. 

Where  a  company  destroys  insured  prop- 
erty by  fire,  and  the  insurance  company 
pays  the  amount  of  the  insurance  and  then 
sues  the  railroad  company,  the  defense  that 
the  insured  should  have  brought  the  action 
must  be  made  by  answer;  otherwise  it  is 
waived.  Home  Ins.  Co.  v.  Pennsylvania  R. 
Co.,  II  Hun{N.  Y.)  182. 

Where  a  female  sues  for  a  personal  in- 
jury in  her  maiden  name  instead  of  that 
acquired  by  marriage,  since  the  adoption  of 
the  Code  it  is  not  ground  for  abatement, 
and  the  only  mode  of  presenting  a  defense 
for  such  misnomer  is  by  answer,  and  if  not 
so  presented  no  advantage  can  be  taken  at 
the  trial.  Traver  v.  Eighth  Ave.  R.  Co.,  4 
Abb.  App.  Dec.  {N.  V.)  422.  6  Abb.  Pr.  N.  S. 
46,  3  k'eyes  497. 

54.  What  may  be  pleaded  as  a 
defense. —  In  an  action  for  forcibly  enter- 
ing upon  land  and  digging  the  soil,  exca- 
vating pits,  and  making  embankments,  an 
answer  that  defendants  entered  as  the 
servants  of  a  railroad  company  which  had 


PLEADING,  65. 


1007 


1^,8  C.  &*P. 

iff  brought 

for  cost  of 

defendant 

ed   a  coun- 

out  on  the 

not  denied 

plaintiff's 

I  defendant' 

lim  without 

ss  and  cor- 

coiint.  Gaf- 

Schwartz,  3 

l»PO|>pr  or 

a  railroad 

as  a  com- 
)ut  an  aver- 
and  if  this 
er,  and  not 
td&»  D.  A\ 

8g  N.  Car. 

Richmond 

satisfaction 
n  an  action 
terials  and 
t  cannot  be 
supported 
s  disputed. 
M.  A\  Co., 

ured  prop- 
;  company 
:e  and  then 
efense  that 
the  action 
:rwise  it  is 
^ylvania  R, 

ersonal  in- 
ad  of  tliat 
doption  of 
ibatement, 
:  a  defense 
and  if  not 
e  taken  at 
'.  K.  Co.,  4 
Pr.  N.  S. 

c(l   ns  a 

ibiy  enter- 
soil,  exca- 
ments,  an 
rl  as  the 
irhich  had 


legally  appropriated  the  injured  property  as 
a  right  of  way  will  justify  the  entry  and  bar 
the  suit.     Green  v.  Boody,  21  Ind.  10. 

To  an  action  against  a  company  to  re- 
cover for  work  and  labor  an  answer  is  suf- 
ficient which  alleges  that  in  proceedings 
before  a  justice  of  the  peace  of  anotiier 
state  against  plaintiff  as  principal  and  de- 
fendant as  garnishee  a  judgment  was  ren- 
dered against  defendant,  and  the  statutes  of 
the  foreign  state  authorizing  such  proceed- 
ings need  not  be  set  up.  Terre  Haute  &•  I. 
R.  Co.  V.  Baker,  1 22  Ind.  433,  24  N.  E.  Rep.Z^. 

In  an  action  against  a  railroad  company 
to  recover  land  upon  which  it  has  built  its 
road,  where  the  answer  of  the  company  sets 
up  title  in  itself,  but  alleges,  pursuant  to 
Minn.  Gen.  St.  1878,  ch.  34.  §§  33-38,  its 
readiness  and  willingness  to  pay  plaintiff 
for  the  land  provided  on  the  trial  he  estab- 
lishes his  right  to  recover  the  land,  the  re- 
lief demanded  in  the  answer  is  not  "affirm- 
ative" within  the  meaning  of  the  statute. 
Koerper  v.  St.  Paid  <&-  N.  P.  R.  Co.,  40 
Minn.  132.  41  N.  IV.  Rep.  656. 

55.  Siifliciciicy  of  the  denials,  gen- 
erally.— Where  a  defendant,  sued  as  a  cor- 
poration, answers,  denying  that  it  is  a  cor- 
poration, or  has  ever  been  organized  or 
attempted  to  be  organized  as  one,  such 
denial  is  sufficiently  specific  under  Iowa 
Code,  §  2717.  Fohovi  v.  Star  U.  L.  F. 
Freight  Line,  54  Iowa  49c-  6  N.  IV.  Rep. 
702. 

A  petition  against  a  railroad  company 
alleged  that  "defendant  carelessly,  negli- 
gently, and  wantonly  ran  its  engine  and 
cars  over  and  upon  plaintiff's  mare."  The 
answer  denied  that  "  defendant  carelessly, 
negligently,  and  wantonly  ran  over  said 
mare."  Held:  (i)  that  this  was  not  a  de- 
nial of  the  injury  complained  of;  (2>  that 
under  these  pleadings  the  court  erred  in  in- 
structing the  jury  that  such  denial  "  puts 
plaintiff  upon  proof  of  his  cause  of  action." 
Harden  v.  Atchison  <S>»  A^.  R.  Co.,  4  Neb. 
521. 

In  an  action  for  personal  injury  it  was 
shown  that  the  track  of  defendant  ran 
along  a  certain  street  in  a  city.  The  com- 
plaint alleged  in  positive  terms  that  this  was 
"a  public  street  of  said  city."  The  answer 
denied  that  plaintiff  was  rightfully  or  law- 
fully walking  on  its  track  at  the  time  of  the 
injury,  or  that  the  public  was  accustomed 
to  walk  thereon,  or  that  it  had  any  right 
so  to  do.  Held,  that  these  averments  in  the 


answer  did  not  constitute  a  denial  of  the 
allegation  in  the  complaint  that  defendant's 
track  was  on  a  public  street.  Solen  v.  Vir- 
ginia (S-  T.  R.  Co.,  13  Nev.  106. 

In  the  decision  of  this  case  on  the  de- 
murrer, reported  in  43  Ohio  St.  228,  22  Am. 
&  Etig.  R.  Cas.  129,  it  was  held  that,  upon 
the  averments  of  the  petition,  the  plaintiffs 
might  treat  the  easement  of  the  Lake  Shore 
&  Michigan  Southern  railway  company  in 
that  part  of  its  right  of  way  described  in 
the  contract  between  that  company  and  the 
defendiint,  set  forth  in  the  petition,  as  aban- 
doned, and  recover  of  the  defendant  damages 
as  upon  an  appropriation.  The  fact  upon 
which  the  petition  based  the  alleged  aban- 
donment was  the  making  of  the  contract  al- 
luded to,  by  which  the  Lake  Shore  company 
undertook  to  transfer  that  part  of  its  right 
of  way  therein  described  to  the  defendant  for 
railroad  purposes  in  perpetuity.  The  aver- 
ments of  the  petition  relating  to  the  aban- 
donment  are  that  by  the  agreement  between 
the  two  companies  the  Lake  Shore  &  Mich- 
igan Southern  railway  company,  for  the 
consideration  therein  named,  "abandoned 
to  the  defendant,  and  undertook  to  permit 
and  license  the  defendant  to  use  and  per- 
petually occupy  for  its  railroad,"  that  part  of 
the  former  company's  right  of  way  referred 
to;  and  "that,  by  the  abandonment  afore- 
said," the  easement  of  the  Lake  Shore  & 
Michigan  Southern  railway  company  "ceased 
and  terminated ; "  and  "  that  portion  of 
said  lot  so  abandoned  to  and  occupied  by 
the  defendant  is  of  the  value  of  ten  thousand 
dollars."  The  answer  does  not  controvert 
the  making  of  the  contract  between  the  two 
companies  as  alleged  in  the  petition,  but 
denies  that  the  Lake  Shore  company  in- 
tended to  or  did  thereby  abandon  any  of 
its  right  of  way,  or  that  its  easements  or 
right  of  way  ceased  and  determined  by  vir- 
tue of  said  agreement.  Held:  (1)  These 
denials  raise  no  issue  of  fact.  They  are  the 
pleader's  construction  of  the  contract,  and 
his  opinion  as  to  its  legal  effect.  (2)  By 
the  former  decision  of  this  court,  upon  the 
demurrer,  it  was  settled  that  the  effect  of 
the  contract  made  between  the  Lake  Shore 
company  and  the  defendant  was  to  work 
the  abandonment  claimed  in  the  petition ; 
and  it  was  not  error  for  the  court,  011  the 
trial  of  the  case,  so  to  instruct  the  jury. 
Pennsylvania  Co.  v.  Piatt,  46  Am.  is*  Eng. 
R.  Cas.  558,  47  Ohio  St.  366.  25  A^.  E.  Rep. 
1028. 


U       III] 


1008 


PLEADING,  56-59. 


Ml 


i 

( 

i 

1 

V 

j- 

1 

1 

J 

50.  Denials   must  lu;  vcrtuiii  and 

s|M!eiUc'.— An  iiverment  in  an  answer  to  an 
iiclioii  upon  a  county  bond  issued  in  aid  of 
a  railway  that  no  requisite  of  chapter  15  of 
the  Code  was  observed  is  not  sufficient,  it 
belli",'  too  general,  and  it  is  not  error  to  sus- 
tain a  demurrer  thereto.  C7iip/>  v.  Cedar 
County,  5  Io7t)a  15. 

Suit  was  brought  upon  a  subscription  to 
stock,  and  the  complaint  alleged  that  the 
subscription  was  made  by  a  third  party  for 
defendant,  and  that  the  latter  afterwards 
ratified  it.  Defendant  answered  under  oath, 
denying  that  he  made  any  subscription  to 
stocl*.  Held,  that  the  answer  was  defective 
as  failing  to  meet  the  averments  of  the 
complaint.  Wilson  v.  Evansville  &*  C.  R. 
Co.,  9  Ind.  510. 

A  denial  must  be  direct  and  unambiguous, 
and  must  answer  the  substance  of  each  di- 
rect charge;  and  such  facts  as  are  not  denied 
by  the  answer,  for  the  purposes  of  the  action, 
are  to  be  taken  as  true.  Harden  v.  Atchi- 
son  &*  N.  R.  Co.,  4  Neb.  521. 

Where  a  complaint  charges  that  the  com- 
pany did  not  safely  and  securely  carry  and 
convey  the  goods  and  deliver  the  same,  a 
plea  which  does  not  distinctly  deny  this 
averment,  but  attempts  to. construe  the  com- 
plaint as  alleging  another  and  different 
claim,  is  bad  on  demurrer.  Pennsylvania 
R.  Co.  v.  Wilson,  (Pa.)  3  All.  Rep.  783. 

57.  Immaterial  allegations  in  an- 
swers.—It  is  not  necessary  that  a  corpora- 
tion formed  under  the  laws  of  Great  Britain 
to  construct,  own,  operate,  and  lease  railways 
in  Oregon  should  specify  in  its  memoran- 
dum of  association  the  termini  thereof, 
and  therefore  an  allegation  in  an  answer 
to  a  complaint  in  an  action  by  such  a  cor- 
poration on  a  lease  of  its  road  that  it  had 
not  made  such  a  specification  is  immaterial. 
Oret^onian  R.  Co.  v.  Oregon  R.  &•  N.  Co.,  1 1 
Sau'y.  (U.  S.)  564,  27  Fed.  Rep.  277. 

A  mere  denial  of  the  lessee  corporation's 
power  to  execute  a  lease  of  a  railway,  in  an 
action  thereon  by  the  lessor  corporation  to 
recover  rent,  is  a  conclusion  of  law  and  im- 
material. Oregonian  R.  Co.  v.  Oregon  R. 
a-  N.  Co.,  1 1  Sawy.  ( U.  S.)  564,  27  Fed.  Rep. 

ill- 
An  allegation  by  the  lessee  corporation 

in  such  action  that  the  lessor's  road  had 
no  near  connection  with  its  road,  that  the 
capital  stock  of  the  latter  was  not  contrib- 
uted to  operate  leased  roads,  that  the  lease 
was  not  ratified  by  its  stockholders,  or  that 


it  was  signed  by  its  president  and  secretary 
without  the  state  of  its  origin,  is  immaterial. 
Oregonian  R.  Co.  v.  Oregon  R.  &*  N.  Co.,  1 1 
Sawy.  ( U.  S.)  564.  27  Fed.  Rep.  277. 

58.  Joinder  of  defenses. — In  an  ac- 
tion in  replevin,  the  answer  jilleged  pay- 
ment by  defendant,  a  warehouseman,  at 
plaintiff's  request  of  the  carrier's  charges  for 
transporting  goods  shipped  by  plaintiff  and 
consigned  to  defendant,  and  claimed  a  lien 
on  them  by  reason  thereof,  and  also  alleged 
his  charges  as  warehouseman  in  receiving 
and  storing  the  goods  at  plaintiff's  request, 
and  claimed  a  lien  on  that  account.  Held, 
that  the  facts  relating  to  each  lien  were  (if 
good)  a  distinct  defense,  and  although  they 
were  not  "  separately  stated,"  plaintiff  might 
demur  to  one,'and  reply  to  the  other,  liass 
v.  Upton,  I  Minn.  408  {Gil.  292).— Review- 
ing Durkee  v.  Saratoga  &  W.  R.  Co.,  4 
How.  Pr.  (N.  Y.)  226;  Howard  v.  Michigan 
Southern  R.  Co.,  5  How.  Pr.  206. 

In  an  action  for  personal  injuries  the 
complaint  contained  two  counts,  both  alleg- 
ing that  the  injuries  were  caused  by  the 
negligence  of  the  driver  of  defendant's 
street-car.  The  second  count  also  alleged 
negligence  of  defendant  in  allowing  the  car 
and  the  street  at  the  place  of  injury  to 
remain  out  of  repair,  but  did  not  allege  that 
such  negligence  contributed  to  the  injury. 
Held,  that,  as  the  only  negligence  alleged  as 
the  direct  cause  of  the  injury  was  that  of 
the  driver,  the  two  counts  were  substantially 
alike,  and  defendant  was  not  prejudiced  by 
a  refusal  to  compel  plaintiff  to  elect  be- 
tween them.  Shenners  v.  West  Side  St.  R. 
Co.,  74  Wis.  447,  43  A'.  W.  Rep.  103. 

60.  Inconsistent  defenses.— An  an- 
swer may  embrace  inconsistent  defenses. 
Each  separate  defense,  however,  which  is 
set  up  in  the  answer,  each  plea  in  confes- 
sion and  avoidance,  must  constitute  in  it- 
self a  good  defense  to  the  action  and  be 
consistent  in  its  averments.  But  distinct 
defenses,  set  up  in  separate  pleas  in  the  an- 
swer, may  be  inconsistent  with  each  other 
without  invalidating  the  answer.  Interna- 
tional &*  G.  N.  R.  Co.  v.  Kentle,  {Tex.)  16 
Am.  &*  Eng.  R.  Cas.  337. 

A  cause  was  tried  upon  the  facts  by  the 
judge,  and  he  struck  out  special  defenses  of 
defendant,  but  admitted  evidence  of  those 
special  defenses  under  the  general  denial. 
Held,  that  the  special  defenses  were  legal 
defenses  properly  pleaded,  and  it  was  error 
to  strike  them  out.    International  &*  G.  N. 


■m: 


PLEADING,  60. 


1009 


id  secretary 
immaterial. 
-  N.  Co.,  1 1 
277. 

, — In  an  ac- 
illeged  pay- 
)useman,  at 
I  charges  for 
jlaintifl  and 
limed  a  lien 
also  alleged 
in  receiving 
iff's  request, 
unt.  Nf/d, 
lien  were  (if 
though  they 
lintiff  might 
)liier.  /i<iss 
.— Review- 
7.  R.  Co.,  4 
V.  Michigan 
6. 

injuries  the 
i,  both  alleg- 
jsed  by  the 
defendant's 
also  alleged 
ving  the  car 
3f  injury  to 
t  allege  that 

the  injury. 
:e  alleged  as 
was  that  of 
iubstantially 
rejudiced  by 
to  elect  be- 

Siiie  St.  /i. 

103. 
B8.— An  an- 
it  defenses. 
:r,  which  is 
in  confes- 
titute  in  it- 
ion  and  be 
But  distinct 
is  in  the  an- 

each  other 
r.  Interna' 
U,(Te.v.)  16 

facts  by  the 
defenses  of 
ice  of  those 
eral  denial. 
;  were  legal 
it  was  error 
tal&'G.N. 


R.  Co.  V.  Kentle,  (Tex.)  16  Am.  &*  Eng.  R. 
Cas.  337. 

Under  VVyom.  Code.  p.  45,  §  91,  a  defend- 
ant has  the  right  to  plead  any  number  of 
defenses  which  are  not  mconsistent  in  fact ; 
and  m  determining  this  right  two  state- 
ments should  never  be  held  inconsistent  if 
both  may  be  true.  On  the  trial  defendant 
may  avail  himself  of  each  defense  which  he 
may  properly  set  forth  in  his  answer,  and 
will  not  be  concluded  from  proving  the 
truth  of  one  plea  by  any  implied  admissions 
contained  in  another,  or  by  implication  of 
law  arising  therefrom.  Lake  Shore  &*  M.  S. 
/»'.  Co.  v.  Warren,  ( IVyom.)  21  Atn.  (S-  Eng. 
R.  Cas.  302,  6  I\ic.  Rep.  724. 

00.  Matters  ndiiiitted  by  aiiHwer 
or  pica. — By  pleading  a  general  traverse 
defendants  admit  the  competency  of  a 
claimant  corporation  to  sue  in  its  corporate 
capacity.  Southern  Pac,  Co.  \.  United  Stales, 
28  Ct.  of  CI.  77. 

Plaintiff  sued  for  personal  injuries,  and 
charged  in  his  complaint  that  he  was  em- 
ployed by  defendant,  and  that  one  of  its 
trains  "  was  suddenly  started  by  defendant 
or  its  agents,  without  notice  or  warning  to 
plaifitifT,  while  plaintiff  was  lawfully  be- 
tween two  cars  of  said  train,"  causing  the 
injuries  complamed  of.  The  company  an- 
swered admitt-.ng  that  it  was  operating  a 
railroad  at  the  time  and  place,  but  filed  a 
general  denial  as  to  tlie  injuries.  The  evi- 
dence showed  that  there  was  only  one  road 
operated  at  the  time  and  place  mentioned. 
Held,  that  the  company  could  not  defend 
on  the  ground  that  the  road  was  not  oper- 
ated by  it.  Central  R.  Co.  v.  Stoermer,  51 
Fed.  Rep.  518,  i  U.S.  App.  276,  2  C.  C.  A. 
360. 

In  an  action  to  recover  the  value  of  hay 
burned,  defendant,  in  the  first  division  of  its 
answer,  after  admitting  certain  averments 
of  the  petition,  proceeded :  "  And  it  denies 
each  and  every  other  allegation  in  said  pe- 
tition, unless  the  same  is  herein  otherwise 
alinitted."  In  the  second  division  certain 
other  admissions  were  made.  Held,  that 
the  word  "  herein  "  used  in  the  first  di- 
vision referred  to  the  whole  answer  and 
not  to  the  first  division  only.and  that  there- 
fore the  first  division  did  not  set  up  a  dis- 
tinct defense  unaffected  by  the  admissions 
in  the  second  division.  Hence  the  erroneous 
admission  of  evidence  to  prove  one  of  the 
facts  admitted  in  the  second  division  was 
without  prejudice,  and  it  was  not  error  for 
6  D.  R.  I).-f.4     • 


the  court  to  state  these  admissions  in  the 
instructions  to  the  jury.  Comes  v.  Chicago, 
M.  &'  St.  P.  R.  Co.,  78  Io7ua  391,  43  A',  ir. 
Rep.  235.  —  Distinguishing  Murphy  v. 
Sioux  City  &  P.  R.  Co.,  55  Iowa  476  ;  Lewis 
».  Chicago,  M.  &  St.  P.  R.  Co.,  57  Iowa  127. 

Where  a  general  denial  is  pleaded  to  a 
suit  by  a  corporation,  the  de  facto  existence 
of  the  corporation  is  admitted.  Harrison 
V.  Martinsville  &^  F.  R,  Co.,  16  fnd.  505. 

The  Mississippi  statute  of  1836.  declaring 
that  all  pleas  shall  be  deemed  and  adjudged 
as  admitting  the  parties  and  the  character 
of  the  parties  suing,  applies  to  corporations 
as  well  as  other  suitors.  Reed  v.  Hcnton  &* 
M.  R.  &*  B.  Co.,  5  Miss.  257. 

The  admission  of  an  answer  that  defend- 
ant is  a  street-railroad  corporation  duly 
organized  and  existing  under  the  general 
statutes  of  the  state  is,  in  effect,  an  admis- 
sion that  it  is  a  common  carrier  of  pas- 
sengers, and  the  courts  will  take  judicial 
notice  of  its  rights  and  powers.  Uurbridge 
V.  Kansas  City  Cable  R.  Co.,  36  Mo.  App. 
669. 

In  an  action  by  a  child  to  recover  dam- 
ages for  injuries  caused  by  a  cable  car,  de- 
fendant pleaded  that  plaintiff's  mother  con- 
tributed to  the  injury  by  placing  him  in 
charge  of  a  careless  person  who  allowed 
him  "to  get  in  front  of  defendant's  car." 
Held,  that  such  plea  admitted  the  owner- 
ship of  the  car  and  operation  of  the  road  by 
defendant,  and  it  could  not  object  that 
plaintiff  had  failed  to  prove  either  point. 
Winters  v.  Kansas  City  Cable  R.  Co.,  40 
Am.  &*  Eng.  R.  Cas.  261,  99  Mo.  509,  12  S. 
W.  Rep.  652,  6  L.  R.  A.  536.— Approving 
Erie  City  Pass.  R.  Co.  i^.  Schuster,  113  Pa. 
St.  412  ;  Bellcfontaine  &  I.  R.  Co.  v.  Snyder, 
18  Oiiio  St.  399.  Disapproving  Hartfield 
V.  Roper,  21  Wend.  (N.  Y.)  615.  Distin- 
guishing Stillson  V.  Hannibal  &  St.  J.  R. 
Co., 67  Mo.  671  ;  Holly  v.  Boston  Gas  Liglit 
Co.,  8  Gray  (Mass.)  123;  Waite  v.  North 
Eastern  R.  Co..  El.  Bl.  &  El.  728;  Ohio  & 
M.  R.  Co.  V.  Stratton,  78  III.  88.  Quoting 
Boland  v.  Missouri  R.  Co.,  36  Mo.  484. 

Under  N.  Y.  Act  of  1864,  ch.  422,  in  suits 
by  or  against  a  corporation  created  by  or 
under  the  laws  of  the  state,  it  is  not  nec- 
essary to  prove  at  the  trial  the  existence  of 
such  corporation,  unless  an  answer  be  tiled 
denying  the  corporate  existence.  Stone  v. 
Western  Transp.  Co.,  38  A'.  J'.  240.  — Fol- 
lowing Genesee  Bank  v,  Patchin  Bank,  13 
N.  Y.  309. 


t 


p 

ml 

m 

!H 


III' 


ill 


1010 


PLEADING,  01-03. 


In  an  action  for  damages  in  transit,  if  the 
petition  alleges  that  plaintiffs  were  partners, 
and  there  is  no  denial  of  this  :<llegaiion 
under  oath,  the  partnership  need  not  be 
proved.  Gooif  v.  Galviston,  II.  &•  S.  A.  A'. 
Co.,  ( Ti-x.)  40  Am.  &^  Eng.  R.  Cas.  98,  1 1 
5.  m  Hep.  854. 

4.  Demurrer. 

01.  When  a  (Iciiiiirrer  will  lic- 
it it  be  necessary  to  allege  the  value  of  ser- 
vices of  a  person  injured  by  a  railroad,  the 
point  should  be  raised  by  demurrer.  Geor- 
gia Southern  K.  Co.  v.  AV<7,  68  Ga.  609. 

In  Georgia  the  railroad  commissioners  fix 
what  are  just  and  reasonable  freight  rates, 
and  the  schedule  fixed  is  evidence  in  all 
courts  of  the  legal  rate.  A  suit  was  brought 
against  a  company  alleging  an  overcharge, 
but  the  declaration  did  not  allege  either  that 
no  rates  had  been  fixed  by  the  commission- 
ers, or  that  the  charge  made  was  beyond 
the  rates  fixed.  He/tf,  that  the  declaration 
was  demurrable.  Sorrellv.  Central  R.  Co., 
75  Ga.  509.— Reviewed  in  McGrew  7/.  Mis- 
souri Pac.  R.  Co.,  114  Mo.  210. 

The  plain  inference  from  an  averment  in 
a  declaration  in  a  negligence  case,  that  the 
train  started  "  before  plaintiff  had  reason- 
able time  to  safely  alight,"  is  that  the  train 
was  negligently  started  while  plaintiff  was 
in  the  act  of  alighting,  and  if  a  more  specific 
allegation  is  desired  defendant  should  de- 
mur. McCaslin  v.  Lake  Shore  Sr*  M.  S.  A'. 
Co.,  52  Am.  &•  Eng.  A'.  Cas.  290,  93  Mich. 
S53>  S3  ^-  ^^-  ^^^'P-  l-\-  Alayton  v.  Texas 
6-  P.  R.  Co.,  63  Tex.  77. 

A  demurrer  is  a  defense  within  the  mean- 
ing of  N.  Y.  Code.  §  3253.  New  York  El. 
R.  Co.  v.  Harold,  30  Hun  466. 

02.  When  nut.— A  corporation  can  be 
held  responsible  for  a  tort,  though  it  be  w?n. 
ton  or  malicious ;  and  it  may  be  responsible 
for  assault  and  battery  committed  by  one  of 
its  servants  upon  a  co-.ervant;  and  under 
the  existing  rules  of  pleading  in  Minnesota, 
what  was  equivalent  to  a  common  count 
under  the  old  practice  is  good  as  against  an 
objection  raised  by  demurrer.  So  a  com- 
plaint which  alleges  that  defendant,  by  one 
of  its  employes,  committed  an  assault  and 
battery  upon  plaintiflf,  another  employe,  is 
good  on  demurrer.  Lewis  v.  Chicago,  St. 
P.  (S-  K.  C.  R.  Co. ,  35  Fed.  Rep.  639. 

Where  a  court  orders  claims  against  a 
receiver  of  a  road  presented  within  a  certain 
time,  an  objection  that  a  claim  was  not 


presented  within  the  time  fi.xed  must  be 
raised  by  plea,  and  not  by  demurrer.  Cen- 
tral Trust  Co.  V.  Wabash,  St.  L.  &>  P.  R. 
Co.,  46  Fed.  Rep.  156. 

Where  a  party  intervenes  in  a  proceeding 
against  a  road  in  the  hands  of  a  receiver, 
and  files  a  claim,  an  obj.?ction  that  the 
intervener  has  appealed  irom  a  former 
order  touching  the  claim  cannot  be  made 
by  demurrer,  when  the  fact  of  such  appeal 
does  not  appear  on  the  face  of  the  inter- 
vener's petition.  Central  Trust  Co.  v. 
Wabash,  St.  L.  &>  P.  R.  Co.,  46  Fed.  Rep. 
156. 

A  declaration  the  allegations  of  which 
make  out  a  case  for  recovery  against  a 
railroad  as  the  last  of  a  connecting  line  is 
not  demurrable  because,  as  a  matter  of  fact, 
it  may  have  been  leased  to  another  com- 
pany, which  is  the  real  contracting  party. 
If  such  facts  exist,  they  cannot  be  reached 
by  demurrer.  Southwestern  R.  Co.  v,  Bry- 
ant, 67  Ga.  2 1 2. 

Under  N.  Y.  Code  Civ.  Pro.  §  1775,  a 
complaint  which  stales  that  defendant  is  a 
corporation  doing  business  in  the  state, 
but  omits  to  aver  whether  it  is  a  domestic 
or  foreign  corporation,  or  under  the  laws  of 
what  state  or  government  it  is  created,  is 
defective ;  but  the  defect  must  be  taken 
advantage  of  by  motion,  and  not  by  de- 
murrer. Rothschild  V.  Grand  Trunk  R.  Co., 
30  A'.  V.  S.  R.  642,  19  Civ.  Pro.  53,  10  A^. 
y.  Supp.  36  ;  affirmed  at  general  term  in  38 
A^.  Y.  S.  R.  869,  14  A^.  K.  Supp.  807,  60 
Hun  582,  mem. 

If  any  advantage  can  be  taken  of  the 
omission  to  allege  the  corporate  character 
of  a  defendant,  he  same  is  not  available  by 
demurrer,  though  it  may  be  reached  by 
motion.  Rothschild  v.  Grand  Trunk  R. 
Co.,  38  A^.  Y.  S.  R.  869,  60  Hun  582,  mem., 
14  A'.  Y.  Supp.  807. 

03.  General  demurrer.— Where  the 
action  is  for  an  injury  resulting  from  neg- 
ligence, the  question  that  negligence  is  not 
alleged  with  sufficient  particularity  cannot 
be  raised  by  general  demurrer,  and  it  is  too 
late  to  raise  it  after  answer.  Hobson  v.  New 
Mexico  <S-  A.  R.  Co.,  {Ariz.)  28  Am.  &>  Eng. 
R.  Cas.  360,  II  Pac.  Rep.  545.— DISTIN- 
GUISHING Hough  V.  Texas  &  P.  R.  Co.,  100 
U.  S.  213;  Armour  v.  Hahn,  in  U.  S.  313, 
4  Sup.  Ct.  Rep.  433  ;  Abend  v.  Terre  Haute 
&  I.  R.  Co.,  Ill  III.  202;  Seaver  v.  Boston 
&  M.  R.  Co.,  14  Gray  (Mass.)  466:  Gilman 
V.  Eastern  R.  Co.,  10  Allen    (Mass.)    233. 


PLEADING,  04-66. 


1011 


ted  must  be 
urrer.  Cen- 
L.  »S-y^A'. 

1  proceeding 
»{  u  receiver, 
on  that  the 
n  a  former 
lot  be  made 

such  appeal 
of  the  inter- 
>;«/  Co.  V. 
46  Ffd,  Rep. 

ns  of  which 
ry  against  a 
icting  line  is 
latter  of  fact, 
mother  corn- 
acting  party, 
t  be  reached 
'.  Co.  V.  Bry- 

ro.  §  1775.  a 
efendant  is  a 
n  tiie  state, 
is  a  domestic 
Er  the  laws  of 
is  created,  is 
ust  be  taken 
i  not  by  de- 
Trunk  R.  Co., 
'ro.  53,  10  N. 
ml  term  in  38 
Supp.  807,  60 

taken  of  the 
ate  character 
It  available  by 

2  reached  by 
nd  Trunk  R. 
'uft  582,  mem., 

.—Where  the 
ng  from  neg- 
rligence  is  not 
ularity  cannot 
r,  and  it  is  too 
Hobson  V.  New 
J  Am.  &•  Eng. 
545.— DlSTIN- 
P.  R.  Co..  100 
III  U.  S.  313, 
/.  Terre  Haute 
iver  V.  Boston 
466;  Gilman 
(Mass.)    233. 


Quoting  Farwell  v.  Boston  &  W.  R.  Co., 
4  Mete.  (Mass.)  49,  38  Am.  Dec.  339;  Ran- 
dall V.  Baltimore  &  O.  R.  Co.,  15  Am.  & 
Eng.  R.  Cas.  243,  109  U.  S.  478,  3  Sup.  Ct. 
Rep.  322. 

Where  a  passenger  sues  a  carrier  for 
being  assaulted  by  a  conductor,  a  failure  to 
allege  that  the  conductor  was  acting  at  the 
lime  wiihm  the  scope  of  his  employment 
cannot  be  reached  by  general  demurrer. 
Pecples  V.  Brunswick  (S-  A.  R.  Co.,  60  Ga. 
281. 

And  a  failure  to  aver  that  the  conductor 
was  an  agent  or  servant  of  the  company 
does  not  render  the  petition  bad  on  general 
demurrer.  Texas  &*  P.  R.  Co.  v.  Casey,  52 
Tex.  112. 

A  parent  sued  for  an  injury  to  a  minor 
son,  who  was  an  employe  of  defendant,  and 
filed  a  declaration  in  two  counts.  The  first 
count  described  the  minor  as  of  tender 
years,  and  the  second  described  him  as 
eighteen  years  old.  Defendant  filed  a  gen- 
eral demurrer,  insisting  that  if  the  minor 
was  eighteen  he  had  assumed  the  risks  in- 
cident to  his  employment,  and  that  it  was 
not  therefore  liable.  Held,  that,  inasmuch 
as  the  demurrer  was  general,  it  should  have 
been  overruled.  Lynn  v.  Illinois  C.  R.  Co., 
63  Miss.  157. 

When  in  a  count  in  a  declaration  special 
damages  are  laid,  some  grounds  of  which 
are  good  and  some  bad,  a  general  demurrer 
to  the  entire  count  will  not  be  sustained. 
Hendrickson  v.  Pennsylvania  R.  Co.,  8  Am. 
<S-  Eng.  R.  Cas.  368,  43  A'.  /.  L.  464. 

An  action  to  recover  damages  for  causing 
death  by  negligence  is  not  within  rule  16 
of  N.  J.  supreme  court,  requiring  certain 
actions  to  be  styled,  in  the  process  and 
pleadings,  actions  of  tort,  and  the  objection 
may  be  raised  by  a  general  demurrer.  Van 
Blarcom  v.  Delaware,  L.  <S-  W.  R.  Co.,  49 
K.J.  L.  179,  6  All.  Rep.  503. 

In  an  action  for  actual  and  exemplary 
damages,  the  count  for  actual  damages 
being  good,  a  defective  statement  of  the 
cause  of  action  for  exemplary  damages  can- 
not be  reached  by  general  demurrer.  Tay^ 
lor,  B.  <S-  //.  R.  Co.  V.  Taylor,  79  Tex,  104, 
145.  W.  AV/.  918. 

64.  Special  demurrer.— Although  a 
declaration  be  defective  in  not  setting  forth 
any  particular  act  or  omission  constituting 
negligence,  yet  where  there  is  no  special 
demurrer  on  that  ground,  and  the  declara- 
tion is  good  in  substance,  there  is  no  error 


in  overruling  a  demurrer  to  the  declaration. 
Pullman  Palace  Car  Co.  v.  Martin,  58  Am. 
6-  Eng.  R.  Cas.  583,  92  Ga.  161,  18  S.  E. 
Rep.  364. 

65.  Deiniirrcr  for  lack  of  Jurisdic- 
tion.—Under  Miss.  Code,  p.  492,  art.  87,  it 
is  not  necessary  to  state  the  venue  in  the 
declaration,  and  therefore  an  objection  that 
a  suit  against  a  railroad  is  brought  in  the 
wrong  county  cannot  be  raised  by  demurrer. 
Hurt  V.  Southern  R.  Co.,  40  Miss.  391. 

Defendant  company  filed  an  answer  to  an 
action  against  it  to  recover  wages,  alleging 
that  all  the  property  of  the  original  com- 
pany that  contracted  the  indebtedness  had 
been  sold  under  decree,  and  that  defendant 
w.is  the  purchaser  and  a  new  organization, 
not  in  existence  when  the  indebtedness  was 
contracted,  to  which  the  plaintiff  demurred. 
Held,  that  the  demurrer  should  be  over- 
ruled, as  it  was  competent  to  set  up  the 
defense  by  answer.  Barney  v.  Northern 
Pac.  R.  Co.,  56  How.  Pr.  (N.  V.)  23. 

Under  N.  Y.  Code.  §  488,  providing  that 
a  defendant  may  demur  to  a  complaint 
when  it  appears  on  the  face  thereof  that  the 
court  has  no  jurisdiction  of  the  person, 
or  of  the  subject-matter  of  the  action,  an 
objection  that  plaintiff  is  a  non-resident, 
which  deprives  the  court  of  jurisdiction, 
cannot  be  taken  by  demurrer,  when  such 
facts  do  not  appear  on  the  face  of  the  com- 
plaint. Gcrvais  v.  Chicago,  R.  I.  &*  P.  R. 
Co.,  35  N.  v.  S.  R.  129,  58  Hun  610.  20  Civ. 
Pro.  95,  12  A'.  Y.  Supp.  312. 

0(1.  for  iiiitOoiiidcr  of  causes  of 

action.- A  complaint  claimed  a  penalty 
for  taking  excessive  fare,  and  also  damages 
for  being  ejected  from  defendant's  cars  on 
another  trip,  on  the  same  day.  Defendant 
demurred  to  the  complaint  for  improperly 
joining  causes  of  action.  Held,  that  under 
New  York  Code  of  Civ.  Pro.  g§  484, 488,  the 
demurrer  must  be  overruled,  because  the 
cause  of  action  for  the  penalty  was  not  a 
good  cause  of  action.  Sullivan  v.  New 
York,  N.  H.  6-  H.  R.  Co.,  19  Blatchf.  ( U.  S.) 
388,  1 1  Fed.  Rep.  848. 

An  original  petition  alleged  trespass  in 
unlawfully  entering  plaintiff's  farm  and  wil- 
fully throwing  down  fences,  etc.  The  first 
amended  petition  made  another  company  a 
defendant,  and  alleged  the  same  matters  of 
trespass  and  the  consolidation  and  merger 
of  the  two  corporations.  The  second 
amended  petition  was  filed  and  held  bad  on 
demurrer,  and  the  case  was  dismissed  as  to 


1012 


PLEADING,  67, 


»•,  >  i 


ii 


the  original  defendant.  The  third  amended 
petition  alleged  that  the  original  defendant 
coniinitted  tiie  trespass,  and  tiiere  arose  on 
its  part  an  obligation  to  pay  plaintiiT,  and  it 
then  sold  its  line  to  the  other  company,  and 
that  It  by  the  terms  of  sale  and  deed  as- 
sumed and  agreed  to  pay  all  liabilities  of 
the  original  defendant,  including  the  dam- 
ages claimed  in  this  suit.  Held,  that  the 
last  petition  set  out  an  action  on  cf)ntract 
and  constituted  a  clear  departure  from  the 
prior  petitions  which  declared  in  trespass, 
and  a  demurrer  thereto  was  properly  sus- 
tained. Drake  v.  .S7.  Louis  &*  S.  F.  K.  Co., 
35  Mo.  App.  553. 

Where  a  city  and  a  railroad  company  are 
sued  jointly  for  a  failure  of  the  latter  to 
keep  streets  in  repair  under  a  contract  with 
tiie  city,  and  for  leaving  such  streets  in  a 
•  dangerous  condition,  which  caused  an  in- 
jury to  plaintiff,  a  demurrer  cannot  be  sus- 
tained to  the  complaint  because  it  unites  an 
action  on  contract  against  the  railroad  com- 
pany with  an  action  of  tort  against  the  city ; 
nor  on  the  further  ground  that  it  unites  two 
causes  of  action  against  the  railroad  com- 
pany, one  in  tort,  and  the  other  on  contract ; 
but  where  the  demurrer  seemed  to  have  been 
interposed  in  good  faith,  and  the  pleadings 
had  been  amended  without  cost  to  the 
plaintiff,  defendant  should  be  permitted  to 
answer  without  costs.  Bateman  v.  Forty- 
second  St.,  M.  &s  St.  N.  A.  A\  Co.,  5  N.  V. 
Supp.  13. 

07.  for  failure  of  coiiiplniiit  to 

state  facts  siiflicieiit  to  constitute 
a  cause  of  action. — A  paragraph  of  a 
complaint  against  a  company  for  killing 
stock  contained  two  causes  of  action,  of  one 
of  which  the  court  had  no  jurisdiction. 
Held,  that  a  demurrer,  for  want  of  facts,  did 
not  reach  the  defect ;  that  evidence  in  sup- 
port of  the  cause  of  action  of  which  the 
court  had  no  jurisdiction  should  have  been 
excluded  on  objection.  Wabash,  St.  L.  &* 
P.  R.  Co.  V.  Rooker,  15  Am.  «S-  Eng.  R.  Cas. 
558,  90  Ind.  581. 

Where  a  defendant,  in  an  action  to  re- 
cover damages  for  live  stock  lost  in  transitu, 
demurs  "  severally  to  each  paragraph  of  the 
complain  as  amended  because  the  same 
does  not  state  facts  sufficient  to  constitute 
a  cause  of  action  against  defendant,"  the 
demurrer  is  regarded  as  addressed  to  each 
paragraph  of  the  complaint.  Terre  Haute 
&*  L.  R,  Co.  v.  Sherwood,  55  Am.  &*  Eng. 
R,  Cas.  326,  132  Jnd.  129,  31  N.  E.  Rep.  781. 


A  qui  tarn  action  was  commenced  against 
a  railroad  to  recover  a  statutory  penalty  for 
a  failure  to  ring  a  bell  or  sound  a  whistle  in 
running  a  train  over  a  highway  crossing. 
Defendant  demurred  on  the  grounds  (i) 
that  the  complaint  did  not  state  the  direc- 
tion in  which  the  train  was  being  run  ;  (2) 
nor  whether  it  was  a  freight  or  passenger 
train  ;  (3)  nor  at  what  hour  of  the  day  or 
night  it  passed  the  crossing;  (4)  nor  de- 
scribe the  highway  by  name,  location,  or 
termini.  Held,  that  the  demurrer  should 
have  been  overruled  as  to  the  first,  second, 
and  third  grounds,  but  sustained  as  to  the 
fourth.  Ohio  <S-  M.  R.  Co.  v.  People,  45  ///. 
App.  583.— Quoting  and  following  Chi- 
cago &  A.  R.  Co.  V.  Adler,  56  III.  344. 

Plaintiff  alleged  that  while  passing  over 
the  platform  of  defendant's  car,  which 
obstructed  a  crossing,  she  was  "  forcibly, 
wilfully,  and  violently  "  seized  and  thrown 
off  by  the  driver  and  seriously  injured ; 
that  the  driver  was  acting  at  the  time  as 
"  the  servant  and  agent  and  in  the  em- 
ployment of  defendant."  Defendant  de- 
murred to  the  complaint.  Held,  that  the 
demurrer  was  properly  overruled  ;  that  it 
might  be  assumed  from  his  position  that 
the  driver  was  acting  within  the  line  of  his 
instructions  in  keeping  the  platform  clear, 
and  that  the  act  complained  of  was  an  error 
of  judgment  in  the  course  of  his  employ- 
ment for  which  the  company  was  liable; 
also  that  the  averment  that  the  act  was 
"  forcibly,  wilfully,  and  violently "  done 
would  not  be  considered  as  a  charge  that  it 
was  malicious,  but  that  it  was  done  in  the 
performance  of  his  duty,  he  using  more 
force  and  violence  than  was  necessary. 
Shea  V.  Sixth  Ave.  R.  Co.,  62  N.  K  180; 
affirming  5  Daly  221.  —  Distinguishing 
Isaacs  V.  Third  Ave.  R.  Co.,  47  N.  Y.  122. 

Where  the  action  is  against  two  or  more 
defendants,  the  objection  that  no  cause  of 
action  is  stated  against  one  of  the  defend- 
ants, and  that  no  judgment  is  prayed  against 
it,  must  be  taken  advantage  of  by  demurrer, 
and  not  by  a  motion  to  strike  out.  People 
V.  New  York  City  C.  U.  R.  Co.,  y)  N.  V.  S. 
R.  425, 15  A^.  v.  Supp.  225  ;  appeal  dismissed 
in  129  A^.   y.  621,  mem.,  41  A^.  V.  S.  R.  945. 

A  demurrer  "  that  the  negligence  com- 
plained of  is  not  sufflciently  and  legally  set 
out  "  is  sufRcient.  Conley  v.  Richmond  &* 
D.  R.  Co.,  52  Am.  &^  Eng.  R.  Cas.  490,  109 
A':  Car.  692,  14  i\  E.  Rep.  303. 

Neither  a  general  nor  a  special  demurrer 


need  against 
penalty  for 
a  whistle  in 
ay  crossing, 
grounds  (i) 
e  the  direc- 
ing  run  ;  (2) 
jr  passenger 
the  day  or 
(4)  nor  de- 
location,  or 
iirrcr  should 
first,  second, 
ed  as  to  the 
'eopie,  45  ///. 
.OWING  Chi- 
lli. 344. 
passing  over 
car,    which 
IS  "  forcibly, 
and  thrown 
sly   injured; 
the  time  as 
in   the  eni- 
;fendant   de- 
<ld,  that  the 
jled  ;  that  it 
position  that 
le  line  of  his 
atform  clear, 
was  an  error 
his  employ- 
er was  liable; 
the  act  was 
;ntly  "    done 
harge  that  it 
done  in  the 
using  more 
s    necessary. 
J  A^.   K  180; 

'INGUISHING 
7  N.  Y.   122. 
two  or  more 

no  cause  of 
'  the  defend- 
■ayed  against 
by  demurrer, 
out.     People 

39  A'.  y.S, 
>eal  dismissed 

V.  s.  a:  945. 

igence  com- 
d  legally  set 
VicAmond  &* 
Cas.  490,  109 

iai  demurrer 


PLEADING,  08-70. 


1013 


should  be  sustained  to  a  petition  stating 
facts  from  which  the  court  or  jury  trying 
the  cause  may  find  that  negligence  e.\istc(i. 
A'aw/and  v.  Murphy,  66  Tex.  534,  i  S.  W. 
A'ep.  658. 

An  allegation  in  a  complaint  to  enjoin 
the  construction  of  a  sewer  by  a  city,  which 
states  that  "  plaintiff  further  alleges  that 
said  sewer  can  be  constructed  in  the  center 
of  said  street,  if  necessary,  without  injuring 
plaintiff's  property,  and  without  interfering 
with  the  operation  of  plaintiff's  street  rail- 
way," docs  not  negative  the  presumption 
that  the  city  is  proceeding  in  such  a  manner 
as  not  unreasonably  to  interfere  with  the 
rights  of  plaintiff,  and  is  demurrable  for  want 
of  sufficient  facts.  Spokane  St.  A'.  Co.  v. 
Spokane,  5  JVas/i.  634,  32  J'ac.  Rep.  456. 

Plaintiff  sued  as  the  trustee  in  a  railroad 
mortgage  to  secure  bondholders,  and  al- 
leged that  it  was  a  corporation  existing  un- 
der the  laws  of  another  state,  and  was  au- 
thorized to  act  as  trustee,  and  set  out  the 
statutes  creating  it  by  their  title.  Held, 
that  a  demurrer  admitted  the  autliority  of 
plaintiff  to  act  in  the  trust  relation,  and  that 
the  question  was  not  raised  by  a  demurrer 
to  the  complaint.  Farmers'  L.  &»  T.  0> 
V.  Fisher,  17  Wis.  114. 

A  demurrer  to  a  single  paragraph  of  a 
petition  for  the  appointment  of  commission- 
ers, which  paragraph  does  not  profess  to 
state  a  cause  of  action,  is  properly  over- 
ruled. Shealy  v.  Chicago,  M.  &-  N.  A'.  Co., 
72  /Fw.  471.  40  A'.  U'.Kep.  145. 

08.  IiitcriMisiiif;  the  statute  of 
liinitatiuiiM  by  <leiiiiirrcr.— A  declara- 
tion of  trespass  quare  clausutn /regit  against 
a  company  for  unlawfully  building  a  railroad 
on  plaintiff's  land  is  not  demurrable  as 
showing  on  its  face  that  the  action  is  barred 
by  the  statute  of  limitations,  because  such 
demurrer  admits  the  absence  of  a  grant  or 
rightful  taking,  upon  a  presumption  of 
which  the  bar  is  given.  Atlantic  &^  G.  R. 
Co.  v.  Fuller,  48  Ga.  423. 

00.  What  matters  are  admitted  by 
<leiiiurrliitf.— Where  a  proceeding  is  in- 
stituted against  a  company  to  compel  it  to 
run  more  trains,  and  an  answer  is  filed  set- 
ting up  its  financial  inability  to  do  so,  all 
the  facts  well  pleaded  in  the  answer  are  ad- 
mitted by  a  demurrer  thereto.  Ohio  &*  M, 
R.  Co.  V.  People  ex  rel.,  30  Am.  <S-  Fng.  A'. 
Cas.  509,  120  ///.  200,  II  N.  E.  Rep.  347,  9 
West.  Rep.  167. 

A  complaint  alleged  that  defendant  com- 


pany "wrongfully,  illegally,  and  injuriously" 
obstructed  a  certain  street,  to  which  (ie- 
fendant  demurred  J/eld,  that  the  demurrer 
admitted  that  the  allegations  of  the  com- 
plaint were  true,  and  that  defendant  could 
not  set  up  any  claim  that  it  was  acting  under 
a  license  or  authority  of  law.  Scheckner  v. 
Milwaukee  &^  P.  du  C.  R.Co.,  21  Lnva  515. 

70.  Hcariiii;  and  detenu  tiling  de- 
murrers.—Where,  in  the  declaration  in  an 
action  for  violation  of  the  statute  requiring 
signals  to  be  given  when  a  railroad  train 
approaches  a  public  crossing,  the  terms  of 
the  statute  are  set  out  in  substance,  and  the 
exact  point  of  the  intersection  of  the  rail- 
road and  public  highway  is  set  forth,  a  de- 
murrer based  on  the  supposed  want  of  an 
allegation  of  time  and  place  of  the  injury 
will  not  be  sustained.  Ohio  &^  M.  R.  Co.  v. 
People,  49  ///.  A  pp.  225 

Where  an  entire  answer  is  attacked  by 
demurrer,  it  should  be  overruled  if  the  an- 
swer contains  in  any  part  a  defense  to  the 
action,  although  some  one  or  more  counts 
therein  is  vulnerable  to  a  demurrer,  J/ol- 
bert  V.  St.  Louis,  A'.  C.  6-  A'.  A'.  Co.,  38  /o7i>a 

3'5- 

A  declaration  contained  but  one  count, 
alleging  injury  both  to  the  person  and  per- 
sonal property  of  plaintiff  by  reason  of  his 
horse  becoming  frightened  in  consequence 
of  defendant's  negligence  in  not  having  so 
constructed  a  liridge  over  its  road,  at  a  turn- 
pike crossing,  and  in  not  so  placing  safe- 
guards in  and  about  it  as  to  prevent  horses 
on  the  turnpike  from  being  frightened  by 
passing  engines  and  cars.  Defendant  de- 
murred, assigning  four  causes  of  demurrer, 
the  first  three  of  which  were  founded  on  the 
terms  of  its  charter,  which  was  not  offered 
in  evidence,  and  the  fourth  on  the  declara- 
tion containing  two  distinct  causes  of  action, 
and  being,  therefore,  double,  /leld,  that 
the  demurrer  was  properly  overruled  be- 
cause the  first  three  causes  assigned  consist- 
ed of  matter  which  could  not  be  known  to 
the  court  officially,  and  proof  of  which  could 
only  be  furnished  by  the  charter  of  defend- 
ant, and  the  fourth  cause  was  insutlicient. 
lialtimore  6-  O.  R.  Co.  v.  Ritchie,  31  Md. 
191. 

On  demurrer  to  a  declaration  against  a 
corporation  the  charter  of  the  corporation 
is  not  before  the  court.  Morrissey  v.  Provi- 
dence &-  W.  R.  Co.,  IS  R.  /.  271,  3  .///.  Rep. 
10. 

Upon  demurrer  to  a  declaration  for  in« 


n 


lOU 


PLEADING,  71-73. 


I 


H 

MS: 

m 

I 


juries  sustained  by  plaintifT  by  a  rollision 
with  a  train  or  cars  upon  tiie  company's 
tracl<  plaintiff  will,  in  the-  absctico  of  aver- 
ment to  t lie  contrary,  be  ircated  as  u  tres- 
passer, ralton  V.  liast  Ttitii.,  I'.  G-'  (7.  A'. 
Co.,4ii  Ami.  &^  Eng  K.  Cas.  581  89  7V«;/. 
370,  15  S.  IV.  Rep.  919. 

It  is  proper  to  overrule  a  demurrer  to  a 
declaration  grounded  on  the  statement  that 
the  place  of  the  accident  was  "  at,  near,  or 
upon  the  crossing."  Tyler  v.  KelUy,  89  Va. 
282.  1 5  .S'.  A*,  lu'p.  509. 

An  averment  that  a  railroad  company  sold 
a  certain  division  of  its  road  to  another 
company  "  witii  all  its  depots,  shops,  rolling 
stock,  and  franchises"— //<■/</,  on  demurrer,  to 
mciin  that  only  a  franchise  was  sold  neces- 
sary to  operate  that  division  of  the  road. 
ll'ri^r/,/  V.  Milwaukee  &^  St.  P.  A'.  Co.,  25 
//Vv.  4f>. 

71.  l{«'iid«'riii{;  JiKlgiiiciit  ngniiiHt 
party  who  <-oiiiiiiitti>(l  first  fault  in 
l>l«>adiiiHf. — Action  was  brought  by  an  ad- 
ministrator to  recover  for  the  death  of  his 
intestate,  an  employe,  by  the  wilful  neglect 
of  defendant.  The  answer  pleaded  in  bar 
that  deceased  left  no  widow  or  child,  to 
which  it  was  stated  in  reply  that  he  left  as 
heirs  a  father,  mother,  sister,  and  brother. 
J/eM,  that  the  court  did  right  in  overruling 
a  demurrer  to  the  answer,  in  sustaining  a 
demurrer  to  the  reply  and  dismissing  the 
petition.  Jordan  v.  Cincinnati,  N.  O.  <S>»  T. 
P.  R.  Co.,  89  A>.  40,  II  S.  IV.  Ri'p.  10 1 3.— 
DiSTiNGUlsnKD  IN  Givens  v.  Kentucky  C. 
R.  Co.,  89  Ky.  231.  Rf.vikwf.I)  in  Louis- 
ville &  N.  R.  Co.  V.  ConifT,  90  Ky.  560. 

11.  It(>vi<MVof  (lociNioiiMoii  (icniiir- 
rcr. — Where  a  demurrer  to  a  bad  paragraph 
of  a  complaint  is  erroneously  overruled,  and 
it  is  not  affirmatively  shown  by  the  record 
proper  that  the  juflgmcnt  rests  on  the  good 
paragraphs,  tiie  judgment  will  be  reversed. 
Terre  Haute  &^  L.  R.  Co.  v.  Sherwood,  55 
Am.  6-  /:«;'•.  A'.  Cas.  326,  132  Ind.  129,  31 
A'.  E.  Rep.  781. 

In  a  suit  to  recover  damages,  actual  and 
exemplary,  where  only  actual  damages  are 
awarded,  the  action  of  the  court  in  over- 
ruling a  demurrer  to  so  much  of  the  petition 
as  stated  facts  on  which  the  claim  for  exem- 
plary daniages  was  based,  will  not  he  con- 
sidered at  the  instance  of  defendant  on  ap- 
peal. Galveston,  H.  &^  S.  A.  R.  Co.  v. 
Ware,  30  Am.  &•  Enfr.  R.  Cas.  203,  67 
Tex.  635,  4  .9.  \V.  Rep.  1 3. 

A  court  will  not  decree  a  surrender  of 


negotiable  bonds  unless  the  bondholders 
arc  before  the  court,  so  that  it  may  enforce 
its  decree  ;  but  where  the  complaint  does 
not  show  that  certam  bondholders  are  non- 
resid(!iits,  the  supreme  court,  on  an  appeal 
from  an  order  sustaining  a  demurrer,  cannot 
consider  statements  of  counsel,  or  recitals 
in  an  order  of  publication  in  determining 
the  residence  of  such  bondholders,  liurhop 
V.  Roosevelt,  20  Wis,  338. 

5.  Replication  and  Subsequent  Pleadings. 

7!l.  Wlicii  n  replication  is  proper 
or  iicccNHiiry.— A  paragraph  which  is  an 
argumentative  denial  of  an  alleged  sub- 
scription, which  is  shown  by  the  complaint 
to  be  in  writing,  without  being  sworn  to, 
only  operates  as  a  general  denial,  and  there- 
fore does  not  require  a  reply  under  Indiana 
practice.  Denny  v.  Indiana  &*  1.  C.  R. 
Co. ,  1 1  /nil.  292. 

Under  the  Oregon  statutes,  which  only 
require  a  replication  where  an  answer  sets 
up  new  matter,  such  replication  is  not  nec- 
essary where  the  action  is  to  recover  for 
injuries  alleged  in  the  complaint  to  have 
been  received  through  the  negligence  of 
dc'jndant,  and  without  any  fault  or  ncf;li- 
gence  on  the  part  of  plaintiff,  and  an  answer 
is  filed  which  denies  defeiulant's  negligence 
and  alleges  contributory  negligence  on  the 
part  of  plaintiff.  Watkinds  v.  Southern 
Pac.  R.  Co.,  38  Fed.  Rep.  71 1. 

Where  an  answer  pleads  the  statute  of 
limitations,  that  plaintiffs  are  not  owners  of 
the  land  in  question,  and  are  now  by  vari- 
ous acts  estopped  from  making  claim  for 
coni|)ensation  against  the  defendant,  a  re- 
ply is  unnecessary  under  section  2665  Iowa 
Code,  providing  that  there  shall  be  no  reply 
except  a  counterclaim  or  some  matter  in 
confession  and  avoidance  be  alleged.  Hart' 
ley  V.  Keokuk  Z"  N.  W.  R.  Co.,  85  lo^ua 
455,  52  N.   W.  Rep.  352. 

A  carrier  sued  for  injuring  a  horse  al- 
leged in  its  answer  that  "  in  taking  the 
horse  from  the  cars  plaintiff's  agents,  by 
their  negligence  and  by  reason  of  the  wild- 
ness  and  iinruliness  of  the  horse,  suffered 
him  to  jerk,  rear,  and  fall ;  but  he  was  not 
hurt  or  otherwise  injured  thereby."  These 
allegations  were  not  denied  by  the  reply. 
Held,  that  as  it  is  not  alleged  that  but  for 
this  negligence  the  horse  would  not  have 
fallen  from  the  platform,  and  all  injury  of 
any  kind  is  denied,  the  defense  does  not 
amount  to  contributory  negligence,  and  no 


PLEADING,  74. 


1015 


reply  is  necessary.  Chvin  v.  I.ouhvilli'  C'* 
N.  K.  Co.,  35  Aw.  &•  /uijf.  A'.  Ois.  687.  87 
A>.626,  9^'.   ir.  /iV/.  698. 

All  express  company  was  sued  for  tlic 
non-delivery  in  time  of  a  pacita^e  contain- 
ing; an  old  insurance  |)(>licy  and  application 
for  a  paid-up  one,  wiiercby  the  ri^ht  to  the 
paid-up  policy  was  forfeited.  Tiie  cominmy 
pleaded  tliat  the  claim  was  not  made  at  the 
shipi)inn  office  within  tiiirty  days,  //e/if, 
that  plaiiitifT  should  demur,  or  reply  matter 
in  avoidance,  if  lie  wished  to  test  the  de- 
fense. By  joining  issue  he  admitted  its 
completeness  if  prcjved.  Soul/tern  Exp.  Co. 
V.  Hunnictitt,  54  Miss.  566. 

Under  tlie  New  York  practice,  where  u 
complaint  is  tiled  claiming  damages  for  a 
continuing  injury  fnmi  a  stated  time,  and 
pleas  are  fded  setting  up  a  riefense  of  u 
former  recovery,  and  of  another  action 
pending,  which  do  not  apply  to  tiie  whole 
lime  covered  by  the  complaint,  no  replica- 
tion is  required.  Avery  v.  Nm)  York  C.  &* 
//.  A'.  A".  Co.,  6  N.  Y.  Supp.  547.  24  N.  Y. 
S.  A'.  918  ;  affirmeii  in  117  iV.  Y.  660,  Mem., 
22  N.  E.  Kip.  1 134. 

PlaintiiT  sued  to  recover  for  the  negligent 
killing  of  his  intestate  by  defendant.  De- 
fendant .set  up  in  bar  a  release  executed  by 
the  intestate  after  the  injury.  JieU,  that, 
there  being  no  counterclaim,  a  reply  was 
not  proper,  and  plaintilT  could,  without  re- 
ply, introduce  evidence  to  show  that  the 
release  was  void  for  incapacity,  imposition, 
etc.  Price  v.  Kichinomi  &•  D.  R.  Co.,  38  So. 
Car.  199,  17  S.  E.  Kep.  732. 

74.  ItH  form  luid  siillii-iviiuy.— More 
general  averments  are  allowed  in  replica- 
tions than  in  declarations.  So  where  plain- 
tiff sues  for  injuries,  and  alleges  that  de- 
fendant company  has  constructed  its  road 
so  as  to  endanger  travel  on  a  highway,  and 
the  company  tiles  a  plea  setting  up  the  ap- 
proval of  a  conwniitee,  as  provided  by  its 
charter,  a  replication  is  good  which  sets  up 
that  such  approval  was  obtained  by  fraud, 
without  specifying  in  what  the  fraud  con- 
sisted. Durand  v.  New  Haven  &•  N.  Co., 
42  Conn.  211. 

A  demurrer  to  such  replication  admits 
the  charge  of  fraud  ;  and  where  the  demur- 
rer is  overruled,  and  it  is  found  thiit  the 
road  is  not  constructed  as  required  by  the 
company's  charter,  it  is  liable  in  substantial 
damages.  Durand  v.  New  Haven  &•  jV. 
Co. ,  42  Conn,  2 1 1 

Where  a  plea  that  when  deceased  was 


employed  by  defendant  he  executed  a 
written  agreement  to  examine  closely  all 
cars  before  workmg  on  tlicni,  is  replied  to 
by  a  general  denial  coupled  with  an  allega- 
tion that  the  instrument  w.is  executed  to 
another  railway  company,  the  reply  does 
not  admit  tiie  making  of  the  agreement. 
Mclhrmotl  v.  loiva  Ealh  &^  S.  C.  A*.  Co., 
85  /o7i'a  180,  52  jV.  ir.  A'ep.  181. 

.\  replication  alleging  facts  which  if 
proven  would  show  that  the  verdict  of  con- 
demnation under  which  a  railroad  claims  to 
have  entered  land  was  in  fact  no  verdict  at 
all,  but  merely  a  void  act  of  unauthorized 
individuals,  is  not  an  attempt  to  attack  the 
verdict  collaterally.  H'esi  v.  U'es/  i"-  E. 
A*.  Co.,  20  Ant.  &*  Eng.  A'.  Cas.  402,  61 
Miss.  536. 

Where  a  company  as  defense  to  an  action 
for  damage  sets  up  a  release,  it  is  proper  t(» 
set  up  in  reply  matters  which,  if  true,  will 
avoid  it,  whether  legal  or  equitable.  Bean 
V.  Western  N.  C,  R.  Co.,  107  N.  Car.  731,  12 
i.  E.  Rep.  600. 

Plaintifl  claimed  damages  for  wrongful 
ejection  from  defendant's  cars.  The  com- 
pany filed  a  plea  that  plaintifT  ofTered  an 
excursion  ticket  good  only  on  another  day 
past.  PlaintifT  replied  that  defendants  often 
carried  plaintifT  and  others  liolding  such 
tickets  on  other  days  than  the  day  of  issue, 
and  alleged  leave  and  license  of  an  agent  of 
the  company.  Held,  bad  on  demurrer. 
McElroy  v.  Railroad  Co.,  7  Phila.  (/'a.)  206. 
n  a  personal  injury  suit  flefendant  plead- 
ed accord  and  satisfaction.  PlaintifT  re- 
plied that  the  compromise  thus  pleaded 
was  obtained  by  fraud  and  undue  influence, 
but  did  not  tender  the  money  that  had 
been  paid  on  the  compromise.  The  plea 
did  not  aver  payment  of  money  to  plaintdT. 
No  objection  was  made  to  the  replication 
for  want  of  such  tender.  When,  upon  trial, 
it  was  first  suggested  that  no  tender  had 
been  made,  plaintilT  produced  the  money  in 
court  and  asked  leave  to  amend  the  replica- 
tion and  make  a  formal  tender.  The  amount 
was  credited  on  plaintilT's  recovery.  Held, 
that  the  judgment  would  not  be  arrested  for 
w.int  of  a  tender  with  the  replication. 
A'noAville,  C.  G.  &•  L.  R.  Co.  v.  Acuff,  92 
Tenn.  26,  20  S.  W.  Rep.  348. 

In  an  action  against  a  carrier  for  the  loss 
of  goods  a  replication  that  the  loss  arose 
from  the  felonious  acts  of  the  carrier's  ser- 
vants is  a  good  answer  to  a  plea  that  the 
value  exceeded  ^10,  and  was  not  declared. 


1016 


PLEADING,  7rt,  70. 


,,,1,1 


•SI 


t!i 


f 


Afetcalff  V.  London,  /?.  t^  5,  T.  A".  Co.,  4  C 
y?.  4V.  6".  307,  27  /..  J.  C.  /'.  J05 ,  siY  also 
4C.  A.  A'.  .V.  311.27  A./.  6. /'.  333. 

In  an  action  ai;ainst  a  carrii-r  for  the  loss 
of  Koods,  nndiT  ilu-  dtc'aration  and  |)U'a  in- 
trorluccd,  a  rcplicatioi  that  the  j^oods  were 
fflonioiisly  stolen  h'  ihc  company's  ser- 
vants wiilioiit  allt'Ki  IK  S!,tns%  negligence  on 
the  part  of  liie  company  is  had.  Jiiitl  v. 
Gnat  Western  A'.  Co.,  11  C.  li.  140,  20  L.J, 
C,  r.  241.  — Disc  ussKi)  in  Great  Western 
R.  Co.  V.  KIniell.  27  L.  J.  C.  1'.  201. 

7rt.  Vt'iillral  ion.  —  In  an  action  for 
personal  injuriesdefendant  pleaded  a  settle- 
ment and  written  release,  to  which  plaintifT 
replied  his  mental  incapacity  at  the  time  of 
the  execution  of  the  release  and  the  making 
of  the  settlement,  and  his  refusal  to  receive 
the  money  and  notice  to  the  company  that 
he  disatrirmed  the  settlcn)etit  before  the  in- 
stitution of  suit.  Uild,  that  the  reply  need 
not  be  verified.  It  admitted  the  execution 
of  the  release  upon  which  defendant  relied 
as  a  defense,  and  was  not,  therefore,  a  plea 
of  non  est  factum.  The  facts  pleaded  were 
abundantly  sulFiricnt  to  avoid  the  settlement 
and  release.  Lotiisiu'tle,  N,  A.  6^  C.  />'.  Co. 
V.  Fay  lor,  126  hut.  126,  25  N.  E,  Kep,  869. 

A  petition  alleged  that  defendant  com- 
pany drove  certain  Texas  cattle  from  a 
wrecked  train  along  and  upon  the  public 
liij^hway.  The  answer  stated  that  after  the 
wreck  "  the  cattle  were  taken  from  the  cars 
by  the  owner,  who  thereupon  appointed 
agents  wlio  drove  the  cattle,  unfler  his  au- 
thority and  direction,  to  the  next  station." 
//(■///.  that  the  issue  was  whether  the  com- 
pany through  its  agents  and  employes  drove 
the  cattle,  or  whether  the  owner,  by  his 
agents,  took  charge  of  the  cattle  and  drove 
them  ;  and  a  failure  to  verify  the  reply  did 
not  admit  that  the  owner  took  charge  of  the 
cattle  and  drove  them  away.  Missouri  Pac. 
K.  Co.  v.  Unley,  38  Kan.  550,  16  Pac.  Rep, 
951. 

In  a  suit  by  a  sliipper  against  a  carrier  for 
injury  to  a  horse  the  latter  pleaded  specially 
a  contract  Innitiiig  the  value  of  the  horse  to 
$100.  Tlie  shipper,  by  replications  not 
sworn  to,  denied  that  h<'  had  assented  to 
said  contract,  and  averred  that  it  was  illeg.d 
and  invalid.  The  replications  also  put  at 
issue  other  allegations  of  the  plea.  They 
were  o  )jected  to  for  duplicity  and  because 
not  sworn  to.  HeLl,  bad.  Louisi'illc  &•  N, 
J\'.  Co.  V.  Stnvcll,  49  Am.  &"  ICnt^.  K,  Cas. 
166,  yo  Tcnn.  17,  15  S,  /F.  Kep.  837. 


7<l.    l><>|inrtnro  in   ropilcntion.— A 

new  assignment  by  plaintitT  in  an  action 
against  a  carrier  for  the  loss  of  goods  alleg- 
ing that  the  goods  were  feloniously  stolen 
by  the  company's  servants,  is  bad  as  not 
applying  to  the  portion  of  the  declaration 
to  which  defendant's  plea  (that  the  nature 
and  value  of  the  goods  were  not  declared) 
was  addrcssefl.  Jiutt  v.  Great  Western  A'. 
Co.,  II  C.  li,  140,  20  L.J,  C.  P.  241.— Dis- 
CUS.SKI)  IN  Great  Western  R,  Co.  v.  Rim- 
cll,  27  L.  J.  C.  P.  201. 

Where  a  declaration  alleges  that  a  rail- 
way company  wrongfully  erected  an  em- 
bankment causing  plaintifT's  house  to  be 
flooded,  and  the  con)pany  pleads  that  the 
embankment  was  authorized  by  an  act  of 
parliament,  a  replication  that  the  flooding 
of  the  house  was  caused  by  the  negligent 
and  impro|)er  construction  of  the  embank- 
ment IS  not  a  departure  in  the  pleading. 
Jirine  v.  Great  Western  A'.  Co.,  2  //.  &*  S. 
402,  8  Jur.  N.  S.  410,  31  L.  J,  Q,  li.  loi,  10 
W.  A'.  341,6/..  T.  50. 

In  an  action  against  a  relief  association  by 
a  mother,  the  designated  beneficiary,  t  >  re- 
cover insurance,  defendant  pleaded  a  provi- 
sion of  its  constitution  and  averred  that 
certain  |)artics  entitled  to  damages  on  ac- 
count of  the  accident  had  brought  suit 
agaitist  the  railroad  company,  and  had  re- 
covered damages  jinil  had  not  released  the 
company.  I'laintill  replied  that  the  death 
was  r  >t  caused  by  negligence  on  the  part  of 
the  railroad,  and  that  the  parties,  the  wife 
and  child  of  the  deceased,  were  not  entitled 
to  recover  damages  unless  there  was  such 
negligence.  Held,  that  the  replication  was 
no  answer  to  the  i)lea,  and  a  demurrer  to  it 
was  |)roperly  sustained.  J'ullerx.  Ihiltimore 
Sf  O.  E.  Relief  Assoc,  67  Md,  433,  10  ////. 
Kep.  237. 

In  an  action  for  breach  of  contract  the 
answer  set  up  a  writing  signed  by  plaintifl 
which  difTered  in  its  terms  from  the  con- 
tract alleged  in  the  complaint.  Plaintifl  i>i 
reply  admitted  signing  this  writing,  but  al- 
l<!ged  that  it  was  not  the  actual  agreement 
between  the  parties ;  that  it  was  drawn  up 
by  defendant,  who  induced  plaintitT,  who 
could  not  read,  to  sign  it  by  false  and 
fraudident  representations  that  it  was  such 
a  contract  aS/they  had  agreed  on,  and  such 
as  alleged  in  the  complaint.  Held,  that 
this  reply  was  not  a  departure  from  the 
complaint,  but  sup|)orted  it  by  avoiding  the 
new  matter  set  up  m  the  answer.     Rosby  v. 


?i 


PLEADING,  77,  78. 


1017 


nt  Ion.— A 

an  action 
(kmIs  allcj;- 
tisly  stolon 
lad  as  not 
declaration 
the  nature 
t  declared) 
I'fshrfi  A'. 
241.— Dis- 
D.  7/.   Kim- 

hat  a  raiU 
:d  an  cm- 
>use  to  be 
Is  that  the 

an  act  of 
le  Hooding 
;  negligent 
e  enibank- 

pleading. 
2  //.  .S-  S. 
.  Ji.  loi,  10 

ociation  by 
iary,  t  >  re- 
ed a  provi- 
'errcd  that 
iges  on  ac- 
'ought  suit 
rid  had  re- 
ilcased  the 
the  death 
the  part  of 
es,  tlie  wife 
lot  entitled 
;  was  such 
ication  was 
iiurrer  to  it 
.  lialtimore 
^33.  10  At  I. 

)ntract  the 
by  plaintifT 
n  the  con- 
PlaintifT  i.i 
ng,  but  aU 
agreement 
i  drawn  up 
intitr,  who 

false  and 
it  was  such 
I,  and  such 
Held,   that 

from  the 
oiding  the 
■     Rosby  V. 


Sf.  Ptxut,  M.  (S-  Af.  /»'.  Co.,  37  Minn.  171,  33 

A  declaration  alleged  that  A  suhscribrd 
for  certain  shares  in  plaiiitifT's  company, 
and  at  the  same  time  paid  the  per  centum 
thereon  as  required  by  the  charter,  an<l  A  by 
liis  plea  denied  that  he  had  paid  the  per 
centum  a-*  allt-gcd.  Held,  that  a  replication 
by  plaintifT  that  after  the  subscription  and 
before  any  calls  were  made  on  the  capital 
stock  A  paid  the  per  centum  required,  was 
a  departure  from  the  declaration,  for  which 
a  demurrer  should  be  sustained.  Fistr  v. 
Mississippi &*  T.  li.  Co.,  32  Afiss.  359. 

In  an  action  to  recover  for  the  death  of  a 
passenger  the  declaration  contained  the 
usual  averment  that  he  was  being  carried 
by  defendant  for  reward.  Defendant 
pleaded  that  he  was  not  received  by  it  to 
be  conveyed  for  reward  as  alleged,  but  on  a 
free  pass,  by  which  he  assumed  the  risk  of 
accident.  PlaintifT  replied  that  the  free 
pass  on  which  he  was  traveling  was  deliv- 
ered to  him  in  accordance  with  the  terms 
of  an  agreement  leasing  to  defendant  a  right 
of  way  over  a  company  bridge,  in  consid- 
eration of  a  certain  rent,  and  of  free  trans- 
portation of  the  directors  of  the  company 
over  defendant's  road  and  without  any  pro- 
viso aS  to  the  risk  of  accident ;  that  the  de- 
ceased was  a  director  in  the  company,  and 
that  it  was  so  carrying  him  at  the  time  of 
the  accident  and  not  under  the  contract  in 
the  plea  mentioned.  Held,  on  demurrer, 
that  the  replication  was  good.  Woodruff  v. 
Great  U'e.ttern  A'.  Co.,  18  C/.  C.  Q.  li.  420. 

77.  Ituplication  do  injuria.— In  an 
action  for  the  loss  of  goods  delivered  to  a 
carrier  a  replication  de  injuria  to  a  plea  that 
plaintifT  was  a  passenger  and  that  the  goods 
were  delivered  to  be  conveyed  as  luggage, 
and  that  no  part  thereof  was  an  article  of 
clothing  of  plaintifT,  is  bad.  Elwell  v.  Grand 
Junction  R.  Co.,  5  M.  &'  IV.  669,  8  D.  P.  C. 
225. 

A  replication  :i'  rtjuna  is  only  allowed 
where  the  plea  is  in  cxci'se  and  not  in  de- 
nial of  the  cause  of  aciioi..  It  may  be  used 
in  actions  ex  contractu,  wherever  a  special 
plea  in  excuse  of  the  alleged  breach  of  con- 
tract can  be  pleaded,  as  a  general  traverse 
to  put  in  issue  every  material  allegation  in 
the  plea.  Where  defendant  pleads  that  the 
power  to  cancel  a  subscription  for  stock  is 
derived  from  the  original  agreerment  be- 
tween the  parties,  and  has  been  exercised, 
plaintifT  cannot  reply  by  the  general  traverse 


di'  injuria.      A'ucinian  v.    Nidtfc/ltld  Park 
A'.  Co.,  38  X.  J.  /,.  98.  13  Am.  A'y.  A',-f>.  31. 

7H.  Koplicatioii  to  |il«>a  of  liinita- 
tioii.  — Ill  a  civil  actinii  upon  a  bond  under 
seal  for  the  direct  and  unconditional  pay- 
ment of  money  tlio  recovery  must  be  had,  if 
at  all,  upon  the  nbiigiition  or  agreement  to 
pay  contained  in  tin*  instrument  itself,  and 
cannot  be  had  on  any  sul)scr|iu.'nt  promise 
or  contract  of  less  solemnity.  Hence,  if  to 
such  an  action  tlie<lefense  non  accrerit  infra 
sex  annos  be  interposed,  it  cannot  be  over- 
come by  a  new  |)romise,  acknowledgment  or 
part  payment,  as  in  like  action  upon  simple 
contracts.  Toot /taker  v.  lioulder,  13  Colo, 
219,  22  Pac.  A'ep.  468. 

In  an  action  for  the  obstruction  of  sur- 
face water  by  an  embankment,  where  the 
answer  is  a  general  denial  and  ,1  plea  of  the 
statute  of  limitations,  and  there  is  no  re- 
ply, it  is  error  to  admit  evidence  tending  to 
show,  for  the  purpose  of  avoiding  the  plea 
of  the  statute,  that  defendant  had,  until 
within  a  short  time  l)cfore  the  action  was 
begun,  maintained  a  ditch  to  convey  the 
water  away.  The  matter  in  avoidance  of 
the  statute  should  liave  been  pleaded  if  re- 
lied upon.  (Iowa  Code,  §  2665.)  IVillitsv, 
Chicaf;o,  li.  &*  K.  C.  R.  Co.,  80  Iowa  531,  45 
N.   li'.  Rep.  916. 

Where  a  complaint  shows  that  the  full 
statutory  period  of  limitation  has  run  since 
the  cause  of  action  accrued,  as  to  a  part  of 
the  damages  claimed,  but  facts  are  .set  up 
which  show  an  avoidance  of  the  statute,  an 
answer  insisting  on  the  statute  of  limitations 
as  a  defense  does  n^t  call  for  a  reply.  Avery 
V.  New  York  C.  &•  //.  R.  A\  Co.,  6  X.  ]'. 
Supp.  547,  24  A'.  Y.  S.  R.  918;  affirmed  in 
\\T  N.   Y.  660  mem.,  22  A'.  /;.  Rep.  11 34. 

A  declaration  charged  defendant  com- 
pany with  wrongfully  and  unlawfully  erect- 
ing a  bridge  across  a  stream.  Defendant, 
pleaded  (seeking  to  take  advantage  of  the 
16  Vic.  c.  99,  §  10),  as  to  such  of  the 
causes  of  action  as  accrued  more  than  six 
months  before  the  suit,  that  plaintilTs  ought 
not  to  maintain  their  action,  because  such 
causes  did  not  accrue  within  six  months. 
PlaintifT  replied  that  the  injury  sued  for 
was  a  continuing  damage.  It  was  not  al- 
leged, or  shown  in  any  way,  that  the  bridge 
was  erected  under  defendant's  charter,  or 
for  the  purposes  of  its  railway.  Held,  on 
demurrer  to  the  replication,  that  the  plea  was 
bad  ;  that  if  the  defense  had  been  properly 
pleaded,  the  replication  would  have  been 


1018 


i' 


PLEADING,  70-83. 


Kood.      Wisnier  v.  Great  H't'xtcrn  A'.  Co.,  13 
I/.  C.  n.  /!.  383. 

70.  It('|>lil*iltiOII    to    pllMl  of    SUt-Ofl'. 

— A  replication  to  a  plea  of  set-otl  of  the 
i\moiiiit  due  011  certain  railroad  bonds  sold 
.i:'d  delivered  uiiiler  the  contract  sued  oni 
wl.icli  i:vors  that  since  the  commencement 
of  llfC  actii.n  suit  was  broufjlit  to  foreclose 
the  mortf^age  securing  these  and  various 
othei  Lionds  by  a  majority  of  the  bond- 
holders, with  the  consent  of  tiie  trustee,  and 
a  decree  ami  sale  had,  and  the  property  of 
plaintifT,  the  mortgajjor,  bought  in  by  a 
committee  of  the  bondholders  for  the  bene- 
fit of  all  the  bondholders,  in  |)roportion  to 
the  bonds  held  by  them,  is  bad  as  showing 
no  paymiMit  in  whole  or  in  part,  or  any  ten- 
der, and  as  fading  to  show  any  proceedings 
to  foreclose,  whereby  defendant  is  bound 
and  concluded.  Gitti-iia  &*  S.  fi'.  A',  to.  v. 
Barrett,  2  Am.  &•  Eng.  K,  Cus.  520,  95  ///. 
467. 

80.  Uojolnder.— In  an  action  for  dam- 
ages to  plaintifT's  land,  a  |)lca  of  not  guilty 
was  interposed,  on  which  issue  was  joined, 
and  tiiere  was  a  specuil  plea,  to  which  there 
was  a  special  replication  concluding  to  the 
country.  To  this  there  was  no  rej.  indcr, 
and  the  record  did  not  say  that  issue  was 
joined  upon  it ;  but  the  parties  went  to  trial, 
a;id  the  siil>ject8  of  the  special  plea  and 
replication  were  contested  before  the  jury, 
which  rendered  a  verdict  for  plaintitT.  No 
objection  having  been  taken  to  the  want  of 
joinder  of  issue  in  the  court  below,  it  seems 
that  the  objection  cannot  be  taken  on  ap- 
peal. SoHthiide  R.  Co.  y.  Daniel,  20  Gratt. 
( Va.)  344. 

11.  IN  EQVITT. 

81.  Naiiiiiiiir  mill  dosrriliiiif;  tlio 
part loM.— The  more  recen  rule  is  that, 
for  the  ])ur|)ose  of  federal  jurisdiction,  no 
e.\j)ress  averment  need  be  made  of  the 
citizenship  of  the  members  of  a  corporation, 
but  that  they  shall  be  conclusively  pre- 
sumed to  be  citizens  of  the  state  where  the 
c.rporation  is  averred  to  have  been  created  ; 
but  to  warrant  this  [)resuniption  and  to 
give  the  court  jurisdiction  corporate  cxist- 
ercc  must  be  distinctly  averred.  So  a  bill 
alleging  that  complainant  is  "a  joint  stock 
associati<ui  "  ere  itcd  under  the  'aws  of  an- 
other state  is  not  sufficient.  )itnmore  v. 
Pluladilphia  A-  li.  A\  Co.,  11  P/ii/a.  (Pa.) 
4C3. -Ul'oi  INO     Pennsylvania     ',>.    Ouick- 

ilver  Mm.  Co..  10  Willi.  (U.  S.)  553?    Ke- 


viKWi.Nc.  Liverpool  Ins.  Co.  v.  Massachu- 
setts. 10  Wall.  566. 

A  bill  alleged  that  a  pr.rticular  railroad, 
with  all  its  property,  cflects  and  franchises, 
was  sold  under  proceedings  by  the  state 
against  delinquent  railroads,  and  subse- 
quently resold  by  the  purchaser  to  an  in- 
dividual named,  and  by  him  to  defendant, 
who  had  continued  to  operate  the  road  un- 
der the  charter  of  the  original  coriioration, 
and  had  charged  and  receiv.'d  from  com- 
plainants excessive  freight.  Ifehl,  on  de- 
murrer, that  defendant  was  not  the  corjiora- 
tion,  and  that  the  bill  wr's  properly  tiled 
against  him  as  an  individual.  A'agan  v. 
Aiken,  9  y/w/.  &*  Eng.  A\  Cas.  201,  9  Lea 
(  Venn.)  609,  42  Am.  J\ef>.  684. 

H'i,  StaiiiiK  tli»  i*uMM«  of  aotioii, 
fj«'ii«nilly.— Two  individuals  entered  into 
an  agreement  with  a  company  by  which  they 
engaged  to  purchase,  pay  for,  insure,  and 
ship  to  the  company  a  certain  (piantity  of 
railroad  iron  as  a  condition  precedent  to 
the  liability  of  said  company.  In  a  bill  tiled 
by  said  individuals  against  the  company, 
to  enforce  the  agreement,  it  was  averred 
"  that,  there  is  now  due  to  them  from  tlie 
company  the  sum  of  $7000  and  upwards, 
accruing  to  them  under  the  contract,  and 
that  they  proceeded  to  purchase  the  iron, 
and  furnished  it  to  the  company,  acc(;rding 
to  the  sti|iulations  of  the  contract,  having 
advanced  the  money  tlierefor."  //«•/./,  a 
siiiricient  averment  of  performance.  Mobile 
&■■'  C.  P.  A'.  Co.  V.  Talman,  15  Ala.  472. 

A  bill  filed  against  two  persons  charging 
that  they  were  stockholders  of  a  construc- 
tion corporation,  stating  the  number  of 
shares  held  by  defendants,  and  that,  at  a 
certain  time,  the  corporation,  which  has 
since  been  dissolved,  became  indebted  in 
the  sum  of  %\()0,  "  for  wood  sold  and 
delivered  by  complainant  to  the  corpora- 
tion," which  debt  is  still  unpaid,  is  not 
demurrable,  because  it  does  not  expressly 
aver  that  the  corporation  had  power  to 
make  the  contract.  Spence  v.  Shapanl,  57 
Ala.  598. 

Where  a  bill  distinctly  alleges  that  defend- 
ants subscribed  stock  for  the  express  purjiose 
of  constructing  a  branch  railroad,  and  are 
liable  in  equity  to  account  to  complainants 
tlierefor,  such  statement  embraces  facts 
which  constitute  the  right  of  complainants 
to  eiiforw  the  claim  asserted  by  them,  and 
it  is  not  necessary  tliat  the  bill  should  state 
all  the  particulars  of  the  subscriptions,  in- 


Massachu* 

ar  railroad, 
I  franchises, 
y  the  state 

md  suhsc- 
to   an    in- 

defendant, 
he  road  un- 
:or|)oralion, 

from  coni- 
clil,  on  de- 
he  corpora- 
)perly  filed 
Kagan   v. 

30t,  9  Lea 

i>t'  action, 

L'ntcred  into 
r  which  they 
insure,  and 
(|i)antity  of 
reiedent   to 
n  a  bill  filed 
e  compiiny, 
was   averred 
n)  from  tlie 
nd  upwards, 
ontract,  and 
ISC  tiic  iron, 
y,  according 
;ract,  having 
."     Hil'i.   a 
nee.    Mobile 
■Ua.  472. 
>ns  c)iari;ing 
a  construe- 
number  of 
J  that,  at  a 
,  which   has 
indebted  in 
il    s(;ld    and 
he   corpora- 
paid,   IS   not 
ot  expressly 
id    power   to 
Shapard,  57 

that  defend- 
)ress  purpose 
nad,  and  are 
:omplainants 
braces  facts 
lomplainanis 
)y  them  and 
slioidd  state 
criptions,  in- 


PLEADING,  83. 


1019 


chiding  the  amount  subscribed  and  due  by 
each  one.  Dunham  v.  Eaton  <S«  //.  A'.  Co., 
I  Bond  ( U.  S.)  492. 

Where  a  bill  is  filed  to  set  aside  a  volun- 
tary conveyance  of  real  estate  on  the  ground 
of  fraud,  it  is  sullicicnt  if  it  alleges  that  the 
conveyance  was  without  consideration  ;  but 
if  a  consideration  be  admitted,  an  averment 
of  an  offer  to  return  the  consideration  is 
necessary.  Di's  Atoines  &*  A/.  A'.  Co.  v. 
A//i;y,  3  AlcCrary(U.  S.)  589,  16  Fed.  Kef. 

732. 

Less  than  one  sixth  in  amount  of  the 
bondholders  secured  by  a  railroatl  mortgage 
filed  a  bill  setting  u|)  thai  the  company  was 
in  default  in  the  payment  of  interest,  and 
refused  to  pay  unless  the  bondholders 
■would  take  a  less  r.ite  of  interest ;  and  that 
the  net  income  of  the  company  was  suf- 
ficient to  pay  interest,  but  tliat  the  company 
was  diverting  it  to  unsecured  debts,  and 
that  there  was  danger  of  the  property  be- 
coming insufficient  to  pay  the  mortgage, 
and  prayer!  that  the  mortgage  trustees  be 
required  to  take  possession  of  the  projierty. 
Held,  on  demurrer,  that  the  bill  could  be 
maintained.  First  /Vat.  F.  Ins.  Co.  v.  .S'<i//.f- 
hiiry,  4  Am.  &*  Eng.  A'.  Cas.  480,  130  Alass. 

303- 

Complainant  was  the  holder  of  a  first 
mortgage  bond  of  defendant,  antl  agreed  to 
come  III  under  a  plan  to  reorganize  uinlcr 
a  statute  ;  the  bill  alleged  that  defendant, 
as  reorganized,  was  about  to  issue  to  the 
other  holders  of  such  first  mortgage  bonds 
its  own  bonds,  but  did  not  show  that  su(.h 
new  bonds  were  to  be  secured  by  a  mort- 
gage. Held,  that  such  statements  did  not 
lay  a  ground  for  equitable  jurisdiction. 
But  as  the  bill  alleged  that  dcfeiulant  would 
not  disclose  to  complainant  what  the  plan 
of  reorganization  was — held,  further,  that 
the  ri);lit  of  such  discovery  laid  a  sulficient 
foundation  for  the  suit.  Midland  A".  Co.  v. 
Hitclicotk,  4  ,/w/.  tr«<«  Eng.  A*.  Cas.  522,  34 
A'.  /.  E(j.  278;  affirmim::  33  .V.  /.  Eq. 
86. 

Where  a  corporatir)n  files  a  bill  as  as- 
signee 10  enforce  a  demaixl,  it  is  suincient 
to  allege  generally  the  due  incorporation 
of  plaintiff,  and  that  it  has  power  to  pur- 
chase anil  hold  the  demand.  :.  imden  ^ 
A.  A.  &'  T.  Co.  v.  liemer,  4  Barb.  (.V.  Y.) 
127. 

Nil.  MiiltilUrioiiHiiosN  iiN  to  parties. 
— When  the  object  of  a  bill  is  to  reach 
equitable  assets  of  a  railroad  corporation  in 


satisfaction  of  a  judgment  at  law,  and  the 
assets  are  supposed  to  consist  of  the  un|)aid 
subscriptions  to  the  capital  stock  as  well  as 
the  proceeds  which  may  be  produced  on 
setting  aside  an  alleged  fraudulent  deed  exe- 
cuted by  the  corporation,  the  bill  is  not 
multifarious  because  individual  stockholders 
arc  joined  as  defendant.;  with  the  trustees 
and  jjurchasers  under  the  .'llegcd  fraudulent 
deed.     Allen  v.  Montgomety  K.  Co.,  1 1  Ala. 

437. 

A  demurrer  for  want  of  equity  will  not 
lie  to  a  bill  filed  against  a  railway  company 
by  a  creditor  and  shareholder,  stating  that 
under  an  act  of  parliament  the  company 
was  to  transfer  its  property  to  anothei  rail- 
way cf)mpany  and  to  be  dissolved,  the  pur- 
chasing company  issuing  to  the  selling  com- 
pany stock  to  a  large  amount ;  that  the 
proceeds  of  the  sale  of  the  stock  were  to  be 
applied  by  the  selling  comjiany  in  discharge 
of  certain  liabilities,  and  the  surplus  was  to 
be  divided  between  the  creditors  and  pre- 
ferred stockholders;  that  the  selling  com- 
pany had  transferred  its  property,  but  had 
not  paid  its  creditors  or  shareholders  ;  and 
praying  that  the  company  might  be  wound 
up  and  the  accounts  taken.  [3ut  such  a  bill 
is  demurrable  for  multifariousness  and  mis- 
joinder by  reason  of  the  adverse  interests 
f,f  the  preferred  and  common  stockholders. 
'I'ard  V.  Siltingbourne  <S>»  .S'.  A'.  Co.,  L.  R. 
9  Ch.  488,  43  L.  J.  Ch.  533,  22  U\  A\  565. 
30  L.  T.  550;  affirming  22  W.  R.  450,  30  L. 
T.  247. 

A  company  paid  to  tenants  for  life  the 
full  price  of  land  conveyed  for  a  right  of 
way,  and  on  the  cesser  of  the  life  estate  the 
remaindermen  filed  a  bill  stating  that  the 
company  assumed  to  purchase  the  lands  for 
a  right  of  way ;  that  the  company  alleged 
that  it  had  paid  the  full  consideration  to 
the  tenant!)  for  life,  submitting  that  even  if 
it  did  make  such  payment  it  did  so  in  its 
own  wrong,  and  asking  for  payment  of 
plaintiffs'  share  of  the  purchase  money. 
Held :  (1)  that  the  word  "assumed"  was  a 
sufficient  allegation  of  the  fact  of  sale  and 
conveyance,  but  iliat  the  statement  that  the 
company  "alleged"  that  the  purchase 
money  was  all  paid  to  the  vendors  was  not 
such  a  positive  statement  of  the  fact  of  pay- 
ment t(j  the  tenants  for  life  as  to  make  them 
proper  parties  to  the  bill,  and  a  demurrer 
was  allowed  on  this  ground.  Chvston  v. 
Grand  Trunk  R.  Co.,  28  Grant's  Ch.  ( U.  C.) 
428 ;  Jormer  appeal  26  Grant's  Lit.  93. 


f, 


i  ''^i 


1020 


PLEADING,  84-88. 


'91 


hi 


-   1 

lal    ''  '^ 

F 

II 

i;: 

j 

i' 

'  ^1      I 

Ju-.. 

84. aH  to  caiiHeR  <»f  action.— A 

bill  which  joins  several  causes  of  action 
wiiicli  are  without  connection  will  be  dis- 
missed for  multifariousness.  U'/iet/iain  v. 
I'fHHsylvanici  (*'  N.  Y.  C.&-  R.  Co.,  8  P/tila. 
(J'a.)  92. 

An  individual  obtained  a  judgment 
against  a  town  for  injuries  received  by  rea- 
son of  a  defective  bridge  which  a  railroad 
company  was  bound  to  maintair,  and  after- 
wards the  town  tiled  a  bill  to  have  the  judg- 
ment canceled  on  the  ground  that  the  com- 
pany had  settled  with  the  injured  party,  and 
alleged  that  an  assignee  held  the  judgment 
for  the  benefit  of  the  company,  and  prayed, 
if  the  judgment  was  not  cane  '-d,  for  a 
judgment  against  the  company.  //eM,  not 
demurrable  on  the  ground  that  it  united 
two  causes  of  action,  one  legal,  and  the 
other  e(]uitable.  Strawbrrry  Hill  v.  C/iicago, 
M.  &^  St.  r.  N.  Co.,  41  /•■<•</.  /w/.  5^)8. 

A  party  pledged  certain  negotiable  bonds 
to  plaintiff,  and  afterwards  became  insolvent. 
Defendants  published  a  notice  that  the 
bonds  had  been  wrongfully  abstracted  by 
the  pledgor  from  an  estate  of  which  they 
were  executors,  and  defendant  company  re- 
fused to  register  the  bonds,  whereupon 
plaintiff  filed  a  bill  to  prevent  such  interfer- 
ence and  required  the  company  to  register 
them,  and  to  have  plaintiff  declared  the  real 
owner.  Hfltl,  that  the  pledgor  was  a  neces- 
sary party.  A'ewconihf  v.  C/tinif^o  &•  A',  /f '. 
K.  Co.,  28  iV.  y.  S.  A\  716,  55  //««  607,  8  .V. 
1'.  .'^i//>/>.  366. 

8,5.  TIh'  |»rii.v<T  for  rollof.  —  Where 
the  special  relief  asked  in  tlie  prayer  of  the 
bill  is  abandiined,  and  further  or  different 
relief  is  sought  under  the  general  prayer,  it 
must  be  consistent  with  the  ciise  made  in 
the  bill,  and  not  in  conflict  with  what  is 
specially  prayed  for.  .S7.  Johns  &*  H.  R. 
Co.  V.  liarlohi.  28  /•"/.».  82.  9  So.  Rep.  S53. 

80.  Tli«  pl<*a.  The  receiver  and  man- 
ager of  two  ripjul:,  ,i(ier  a  foreclosure  sale 
filed  a  bill  to  Iti-  admitted  as  a  partner  in  the 
purchase,  Mctting  up  an  agreement  with  the 
purchasers  by  which  iie  was  to  furnish  cer- 
tain information,  and  in  consideration 
whereof  was  to  share  in  the  property.  De- 
fendants filed  a  plea  or  special  answer  charg- 
1111;  that  such  toiiiract  was  void,  on  account 
of  ilie  pnsitiiin  of  plaintiff  at  the  time  as 
lereiver  and  manager,  and  issue  was  joined. 
llild,  that  the  matters  of  the  plea  were  a 
proper  subject  of  demurrer,  and  could  not 
be  availed  ol  by  plea.     Louisville,  h  &^  i>/. 


L.  R.  Co.  v.  Meyer,  30  La-u  EiL  {U.  S.) 
689. 

A  plea  which  sets  forth  the  character  and 
terms  of  a  statute  granting  a  franchise  to  a 
railroad  and  material  to  defendants'  case, 
which  act  is  alluded  to  in  the  bill  only  as 
"a  pretended  legislative  grant,"  performs 
the  proper  office  <jf  a  plea  by  bringing  for- 
ward matter  not  distinctly  appearing  in  the 
bill,  and  which  displaces  the  equity.  Union 
Branch  R.  Co.  v.  East  Tenn.  &*  G,  R.  Co.,  14 
Ca.  327. 

87.  The  iiiiHwcr,  and  its  eflTect.— 
A  bill  prayed  for  an  injunction  against  a 
railroad  corporation  upon  the  ground  that 
a  certain  bridge  which  respondents  intended 
to  build  across  a  river  would  injure  the  ora- 
tor's bridge,  which  had  been  erected  under  a 
charter  from  the  legislature.  The  answer 
stated  that  the  orator  and  wife  owned  cer- 
tain land  adjacent  to  the  bridge,  and  held  it 
and  the  franchise  of  the  bridge  by  the  same 
title.  It  was  then  stated  that  the  assess- 
ment of  damages  to  them  was  for  injuries 
sustained  by  them  as  owners  of  the  bridge 
and  franchise,  and  also  as  owners  of  the  land, 
HeU,  that  the  statement  of  the  ownership 
of  the  lanrl  was  not  impertinent,  because  it 
expliiined  the  reason  of  the  assessment. 
Tucker  v.  Cheshire  K.  Co.,  21  A'.  //.  29. 

Where  a  bill  in  equity  sets  forth  an  "  ex- 
press agreement  officially  in  wt  iting  "  by  the 
agent  of  a  railroad  con: pany  to  redeed  to 
the  grantor  certain  lands,  and  the  answer 
denies  that  the  agent  "entered  into  an  ex- 
press agreement  ofTicially  in  writing  to  re- 
deed  to  the  plaintiff  "  the  lands,  the  denial 
is  not  so  distinct  and  positive  as  to  afford 
grounds  for  the  application  of  the  rule  iii 
equity  that  a  denial  in  the  answer  must  be 
met  and  overcome  by  more  than  one  witness. 
Erie  &^  P.  R.  Co.' s  Appeal,  3  Pennyp.  (Pa.) 
164. 

If  a  foreign  corporation  appears  and  an- 
swers, It  liiereby  waives  the  right  to  object 
that  it  was  not  sued  in  the  stale  or  district 
of  Its  creation  ;  and  where  the  suit  is  inequity 
to  enfoice  a  lien  on  property  in  the  district 
where  tlie  suit  is  brought,  tiie  jurisdiction  is 
not  limited  to  property  in  the  district,  but 
gives  the  court  jurisdiction  f<ir  all  other 
proper  purposes.  Bhickburn  v  Selma.  M. 
&"  M.  R.  Co..  2  Ihpp.  (U.  S.)  525. 

HH.  3)«'nnirror.  — A  bill  by  a  railroad 
company  to  set  aside  deeds  for  several  tracts 
of  land  iind  to  f^uiet  the  company's  title  is 
not    demurrable   on    the  ground   that  the 


^? 


PLEADING,  80-01. 


1021 


company  is  not  in  actual  possession  of  a 
portion  of  the  lands.  A  demurrer  will  not 
lie  if  the  bill  is  maintainable  as  to  a  part  of 
the  lands.  JVort/wrn  Pac.  A'.  Co.  v.  Roberts, 
42  Fed.  Rep.  734. 

Where  plaintiff  alleges  in  its  bill  that,  so 
far  as  it  n)ay  be  held  that  its  rate  on  lum- 
ber discriminates  against  any  shipper,  it 
is  a  just,  necessary,  and  wholesome  dis- 
crimination, an  issue  of  fact  is  presented 
which  the  court  cannot  determine  without 
testimony,  and  it  is  therefore  error  to  sus- 
tain a  demurrer  to  the  whole  bill,  dissolve 
the  restraining  order,  and  dismiss  the  bill. 
The  demurrer  should  be  sustained  only  so 
far  as  the  bill  suught  to  stay  the  prosecu- 
tion of  the  suits  begun  in  the  state  courts 
before  the  granting  cf  a  restraining  order. 
Texas  &*  P.  R.  Co.  v.  Kutemnn,  55  Am.  <S«« 
£«<'•.  R.  Cas.  507,  54  Fed.  R,p.  547. 

A  general  demurrer  to  the  whole  bill  must 
be  overruled  wlien  there  is  any  part  as  to 
which  the  defendant  ought  to  answer.  Vail 
V.  Central  R.  Co.,  23  N.  J.  Eg.  466. 

A  charter  provided  that  the  directors  of  a 
company  should  not  exceed  in  their  contracts 
the  amount  of  its  capital  and  fuiuls  which 
may  have  been  borrowed  and  placed  at  their 
disposal,  and  provided  for  the  joint  and 
several  liability  of  those  of  the  board  who 
might  be  present  at  ilie  making  of  any  con- 
tract exceeding  such  amount  for  the  excess, 
and  a  bill  seeking  to  cnfone  the  liahility  of 
the  directors  for  a  violation  of  this  pro- 
vision alleged  that  the  directors  have  ex- 
ceeded- in  their  contracts  the  jimount  of 
their  unexpended  capital.  //</</,  that  as  tl.c 
charter  did  not  contain  this  liinitatioii.  I'.iid 
the  charge  was  not  made  in  language  equiv- 
alent to  that  employed  thereby,  a  dtmurrer 
to  so  much  of  the  bill  containing  this  alle- 
gation was  properly  sustained.  Shea  v. 
Kno.xvillc  &'  K.  R.  Co.,  6  R.iM.  ( Te/ifi.)  277. 

III.  THC  ISSaS ;  ITS  SCOPE  AND  HOW 
JOINED. 

80.  NcccNHity  of  Joinder  of  iHHiio.— 

PlaintitT  was  a  consignee  of  perishable 
freights  and  sued  the  carrier  for  a  failure  to 
deliver  them.  The  company  offered  evi- 
dence that  plaintitT  agreed  to  dismiss  the 
suit  if  it  would  furnish  him  evidence  to  de- 
fend an  action  against  him  for  the  price  of 
the  freights,  which  was  done,  //fid,  that 
duch  evidence  would  have  been  admissible 
if  the  facts  had  been  set  up  by  a  proper  plea, 
but  not  otlierwise.     Certrat  R.  &•  B.  Co,  v. 


.Ivant.  32  .,-////.  <?-•  Eng.  /\,  Cas.  475,  So  Ca. 
195,  3.S'.  E.  /.'(•/.  78. 

It  is  error  to  submit  to  the  jury  an  issue 
of  fact  (diiccrniii^  whicli  no  allegation  is 
made  in  the  pleading.  Mehdn  v.  St.  Louts 
&'S.  F.  R.  Co..  Sg  Mo.  106.  i  .V.  H'.  R,p. 
286.  — Foi.i.owiNi;  Kenney  v.  Hannibal  & 
St.  J.  K   Co.,  70  Mo.  252. 

An  oDJeciion  to  the  admission  in  evidence 
of  a  riik-  for  the  governiiient  of  the  em- 
ployes of  a  railroad  cf)mpany  on  the  ground 
that  such  rule  has  been  abandoned  avails 
nothing  if  the  fact  of  the  abandonment  of 
such  rule  is  not  pleaded.  (Hiack,  |.  dis- 
senting.) yllcorn  V.  C/iicago  &*  A.  A'.  Co., 
(Mo.)  48  Am.    &*  Eng.  /\.   Cas.   138,  14  S. 

u:  Av/.  943. 

Where  the  issue  of  contributory  negligence 
is  not  presented  in  the  answer,  defendant 
can  introduce  no  evidence  in  relation  to  it. 
St.  Clair  v.  Missouri  /^ac.  R.  Co.,  29  Mo. 
App.  76. 

\  child  was  injured  at  a  crossing,  owing, 
as  alleged,  to  the  defective  construction 
thereof.  In  the  complaint  it  was  alleged 
that  the  injury  occurred  at  a  crossing  "  be- 
longing to  such  railroad."  The  complaint 
also  charged  tLfective  construction  by  de- 
fendant. It  appeared,  however,  that  the 
railroad  was  constructed  before  the  crossing 
was  ojjened.  //eld,  that  the  complaint  fairly 
avorred  an  ownership  of  the  crossing  by  the 
railroad  company,  and  as  the  answer  did  not 
deny  ownership,  no  issue  was  raised  as  to 
such  ownership.  Sptoner  v.  Delaware,  L. 
iS"*  W.  R.  Co.,  ig  Am.  &*  Eug.  A'.  Cas.  599, 
1 1 5  .V  1'.  22,  21  A'.  E.  /<€p.  696,  23  A'.  Y.  S. 
A".  554;  affirming  \\  //un(i\i,  i  A'.  1'.  ^S'.  A', 

558. 

00.  Wliat  Im  a  Hiiftiviciit  Joinder.— 

Where  defendant  is  cited  personally  and  as 
president  of  a  railroad  company,  and  an- 
swers for  himself  alone,  there  is  no  issue 
joined,  and  the  case  will  be  remanded. 
Jeffirson  v.  Kaiser,  17  La.  Ann.  176. 

Where  plaintiff  alleges  in  his  complaint 
that  the  injury  which  is  the  subject  of  the 
action  was  not  caused  by  any  fault  or  negli- 
gence on  his  part,  and  defendant,  instead  of 
moving  to  strike  out  the  allegation,  specific- 
ally denies  the  same,  an  issue  is  formed  on 
the  question  of  contributory  negligence,  and 
no  further  pleading  is  necessary  thereabout. 
Wat  kinds  v.  Soul /urn  Pac.   Co.,  14  Sawy 

(U.s.):io. 

01.  Scope  and  extent  of  the  iNMue. 

— Where  a  company  of  a  certain   name  is 


r^ 


1022 


PLEADING,  92,  03. 


s^ 


3ii 


^■^ 


I '.I 


f? 


sued,  and  after  the  period  of  limitation  has 
expired  .in  amendment  is  allowed  substitut- 
ing a  (lillerent  name,  and  in  the  latter  name 
the  statute  of  limitations  is  plei'/Jed,  and 
plaintiff  replies  that  the  suit  was  in  fact 
origmally  brought  agauist  dcf-judant  by  a 
wronj;  name,  the  issue  thus  presented  is  one 
of  fact  oidy.  riiinsyhutnia  Co.  v.  Sloan,  35 
Atn.  iS~«  AV/j^'.  I\.  Ctts.  440,  125  ///.  72,  17  N. 
E.  Ri'p.  37  ;  affirming  24  ///.  App.  48. 

PlaintifT,  a  civil  engineer,  sued  for  service:? 
rendered,  and  charged  in  his  complaint  that 
at  the  request  of  defendant  he  performed 
certain  labor  and  services,  between  certain 
dates,  of  the  value  of  S2550,  and  charged  a 
demand  and  a  refusal  'o  pay.  The  company 
answered  admitting  the  performance  of  cer- 
tain work  during  the  time  specified,  out 
claimed  that  it  had  been  fully  paid  for, 
and  prayed  that  the  suit  be  dismissed. 
Held,  that  no  issue  was  presented  except 
that  of  payment,  the  affirmative  of  which 
was  upon  defendant.  AlcElroy  v.  Urooklyn 
U.  G.  K.  Co..  12  N.  v.  S.  '•'.  586,  46//«« 
681  ;  affirmed  in  120  A'.  Y.  640,  mem.,  24  A^. 
E.  Rep.  1097,  30  i\'.  J'.  S.  A\  1018. 

In  a  suit  for  personal  injuries  caused  by  a 
car  being  thrown  from  the  track  by  a  rail 
broken  several  days  before  the  injury,  and  a 
a  part  of  which  was  missing,  it  is  not  neces- 
sary that  both  defects  should  be  proved  to 
authorize  a  recovery.  The  substance  of  the 
issue  being,  "  Was  the  track  of  appellant's 
road  unsound  and  unsafe  by  reason  of  the 
defective  rail?"  it  is  sufficient  to  prove 
the  substance  of  the  issue.  Texas  &^  /'.  A'. 
Co.  \.  Kirk,  62  Te.x.  227.— Reviewing  Pitts- 
burgh, Ft.  VV.  &  C.  R.  Co.  V.  Ruby,  38  Ind. 

305- 

In  an  action  for  work  and  labor,  defendant 
pleaded  a  release  under  seal,  making  profert. 
PlaintifT  replied  that  the  agreement  was  de- 
livered to  a  third  party  as  an  escrow,  on 
condition  that  it  should  be  void  on  default 
by  defendant  in  payment  of  £^200  by  a  cer- 
tain day  ;  tli.it  defendant  did  not  pay,  where- 
by the  agreement  becanje  void,  and  so  was 
not  plaintilT's  deed.  Held,  that  defendant 
must  prove  the  execution  of  the  agreement, 
and  that  it  was  not  necessary  for  plaintiff  to 
show  the  conditi<Jnal  delivery  as  part  of  his 
case.  Light  v.  Woodstock  <S-  L.  E,  A'.  6r- 
H.  Co.,  13  U.  C.  Q.  H.  216. 

92.  Elfeet  of  exprvsii  mlmiMsions. 
— Plaintiff  sued  to  recover  for  seven  calves 
killed  while  running  at  large  where  defend- 
ant should  have  fenced.    The  company  an- 


swered admitting  the  killing  of  six  calves, 
but  denied  all  other  averments  of  the  com- 
plaint, and  averred  that  the  six  calves, 
killed  were  not  worth  above  a  certain 
amount,  which  it  had  tendered  to  plaintiff. 
Held,  that  the  admission  of  the  killing  of 
six  calves  was  an  admission  that  they  were 
running  at  large  where  the  company  had  a 
right  to  fence,  and  that  the  general  denial 
put  in  issue  only  the  killing  of  the  seventh 
calf.  Taylor  v.  Chicago,  St.  P.  6-  A'.  C.  R. 
Co.,  76  fowa  753,  40  A'.  W.  AV/>.  84. 

In  an  action  against  a  company  for  a  tort, 
the  complaint  stated  that  "  defendant,  a 
corporation  duly  organized,  were  the  own- 
ers of  a  certain  railroad."  In  its  answer 
defendant  *'  admits  that  at  the  time  men- 
tioned in  said  complaint  they  were  owners 
of  a  certain  railroad,  as  stated  in  said  com- 
plaint.'  //eld,  that  defendant  thereby  ad- 
muted  that  It  was  a  corporation.  Woodson 
V,  Milwaukee  &•  .S/.  P.  A'.  Co.,  21  Afinn.  60, 
79  Am,  A>.  A\'P.  293. 

Where  the  genera'  issue  is  pleaded  to  an 
action  for  the  death  of  a  conductor,  with 
notice  of  special  facts  relied  upon  in  defense, 
among  which  facts  is  an  admission  that  de- 
ceased was  in  the  employ  of  defendant 
company,  this  is  evidence  of  that  fact  and 
it  need  not  be  proved.  Somerset  «S-  C.  A\ 
Co.  V.  Caldraith,  23  /•/«/.  t^  Eng.  A'.  Cas. 
375,  log  Pa.  St.  32,  I  ////.  A'ep.  371. 

IV.  EVIDENCE  UNDEB  THE  PLEADIHOB. 
VABIANCE. 

I.    What  Evidence,  is  Admissible  or 
Sufficient. 

9JI.  Ill  ifi'iicrnl.— Plaintiff  sued  for  the 
killing  of  live  stock  and  filed  a  complaint 
in  two  counts  or  paragraphs,  the  first  alleg- 
ing the  breach  of  a  statutory  duty  on  the 
part  of  defendant  to  fence  its  track,  the 
second  charging  negligence.  The  second 
count  was  dismissed.  Held,  that  it  was, 
nevertheless,  competent  evidence  for  de- 
fendant as  tending  in  some  degree  to  con- 
tradict plaintiff's  theory  as  alleged  in  the 
first  count.  Baltimore,  O.  &-  C,  A'.  Co.  v. 
Evarts,  112  Ind.  533.  14  A'.  E.  Rep.  369,  11 
West.  /iep.  875. 

Where  the  consideration  for  a  settlement 
and  compromise,  as  pleaded,  has  been  felly 
restored,  defendant  cannot  complain  that 
there  is  yet  an  additional  consideration  be- 
sides tiiat  relied  on  in  the  answer  which 
has  not  been  restored.  A  party  is  not  bound 
to  make  proof  of  the  avoidance  of  a  defense 


PLEADING,  »4-»0. 


1023 


)f  six  calves, 
of  the  com- 
six    calves. 
!    a    certuin 
to  piaintill. 
e  killing;  of 
It  they  were 
pany  had  a 
leral  denial 
the  seventh 
<S-  A'.  C.  R. 
84. 

y  for  a  tort, 
ifendant,  a 
re  the  own- 
its  answer 
time  men- 
vere  owners 
n  said  com- 
thereby  ad- 
IVoodson 
I  Minn.  60, 

caded  to  an 
uctor.  with 
I  in  defense, 
on  that  de- 
defcndant 
lat  fact  a.-td 
u't  6-  C.  Ji. 
ng.  K.  Cas. 
'I. 

EADIK08. 

uWe  or 

iicd  for  the 
I  complaint 
;  first  alleg- 
luty  on  the 
track,  the 
'he  second 
liat  it  was, 
ce  for  de- 
ree  to  con- 
ned in  the 
.  R.  Co.  V. 
tp.  369,  II 

settlement 
been  frliy 
iplain  that 
oration  be- 
wer  which 
not  bound 
f  a  defense 


any  broader  than  the  defense  pleaded, 
Louisville,  N.  A.  «5-  C.  A'.  Co.  v.  Fay  lor,  126 
In,i.  126.  25  A'.  E.  Kep.  86y. 

An  alleviation  that  a  signal  was  (;iven  to 
"  slop  the  speed  "  of  cars  is  supported  by 
evKlence  of  a  signal  which  directed  a  total 
cessation  of  motion,  that  being  what  is 
meant  by  stopping  the  speed,  lieents  v. 
C/ihiiiio,  A'.  1.  tS-  /'.  K.  Co.,  67  Iowa  435,  25 
A'.   //'.  Kep.  693. 

Testimony  as  to  the  conduct  of  a  brake- 
man  IS  coiiipeteiit,  although  only  the  con- 
duct of  the  conductor  is  specifically  com- 
plained of.  Louisville  &*  N.  A'.  Co.  v.  Ii<il- 
lanl,  28  ///;/.  6^  ling.  A\  Cas.  135.  85  A>. 
307,  7  ///;/.  St.  Rep.  600,  3  .V.   W.  Rep.  530. 

(>4.  Adiiiis.sibility  of  evUh'iicu  iiii- 
«lti  tin'  {{('iit'i'iil  isMUC— Where  a  com- 
par /  IS  sued  (or  labor  done,  and  answers 
that  the  work  was  done,  but  for  a  contractor 
and  not  for  the  company,  the  contract  be- 
tween the  company  ai:d  the  contractor  is 
admissible  evidence.  Downs  v.  Union  Pac. 
R.  Co.,  4  Kan.  201. 

In  an  action  for  damages  ';.'•  the  destruc- 
tion of  plaintiff's  carriage,  caused  by  the 
neglect  and  imprudence  of  the  dri-.  er  of  an 
omnibus  alleged  to  belong  to  defendants, 
the  latter  may,  under  the  general  issue, 
offer  proof  that  the  omnibus  had  been 
leased  by  them  to  a  third  person  at  the 
time  of  the  accident  The  liability  of  de- 
fendants depending,  not  ui)on  the  owner- 
ship of  the  omnibus,  but  on  the  (act  that 
the  damage  was  done  by  their  servant,  it  is 
no  objection  to  such  evidence  that  it  is  in- 
consistent with  the  denial  of  ownership  of 
the  omnibus  in  their  plea  of  general  denial. 
Hart  v.  New  Orleans  &■'  C.  R.  Co.,  4  La. 
Ann.  261. 

In  a  suit  against  a  common  carrier  for 
failure  to  deliver  a  car-load  of  wheat  to  the 
consignee,  if  the  defendant  answers  with  a 
general  denial  only,  the  issue  to  be  tried  is 
that  of  delivery  or  non-delivery,  and  no 
defense  can  be  sec  up  on  a  theory  that  the 
defendant  had  become  a  warehouseman  of 
the  wheat  at  the  time  of  its  destruction  by 
lire.  Pindeli  v.  St.  Louis  &*  H.  R.  Co.,  34 
Mo.  A  pp.  675, 

In  an  action  against  a  railroad  for  injury 
to  I'iiid,  evidence  that  the  acts  complained  of 
were  done  by  the  permissum  of  plaintiff  is 
iiilmissible  under  the  general  issue  ;  and,  a 
fortiori,  that  they  were  done  at  the  request 
and  by  the  direction  of  plaintiff.  Hills  v. 
JtoKton  i5-  M.  R.  Co.,  18  JV.  //,  179. 


Where  a  railroad  is  sued  for  a  statutory 
penalty  for  withholding  goods  and  for  over- 
(harges,  the  company  cannijt  prove  under  a 
general  denial  a  mistake  in  the  weight  and 
classification  of  the  goods,  even  where  th.e 
bill  of  lading  provides  '.hat  the  weight  and 
cliissifuation  arc  subje<:t  to  correction.  /V. 
If'ortli  »L'-  n.  R.  Co.  v.  Lillard,  4  Tex.  App. 
(Civ.  Cas.)  123,  \(i  S.  W.  /iV/.  654. 

Wi.  l*liiiiitif1'H  rapticity  to  hiic— 
Plaintiff  sued  as  assignee  to  recover  dam- 
ages to  certain  premises.  The  company 
filed  a  general  denial.  Held,  that  it  was 
competent  to  prove  that  before  the  assign- 
ment to  plaintitT  his  assignor  had  made  a 
geneial  assigiunent  for  the  benefit  of  cred- 
itors, and  that,  therefore,  plaintiff  took  no 
title  by  the  a.<siKnincnt  to  him,  and  for  this 
purpose  the  general  assignment  was  com- 
petent evidence.  Douai  v.  Metropolitan 
LI.  R.  Co.,  14  A',  y.  S.  R.  264;  affirmed  in 
124  .V.   Y.  623,  men,.,  35  A'.  }".  S.  R.  996, 

A.  made  a  written,  unsealed  contract  in 
his  own  name  with  a  company  f"r  tiic  de- 
livery of  wo(jd  f(5r  fuel,  the  contract  stipu- 
lating that  it  or  any  rights  thereunder 
should  not  be  transferred  or  assigned  by  A. 
to  any  other  party  without  the  consent  of 
the  company  indorsed  thereon,  B.,  »or 
whom  A.  was  acting,  sued  the  company  in 
his  own  name.  Leave  was  granted  B.  to 
amend  by  alleging  that  the  contract  was 
made  by  A.  for  H.  s  benefit ;  but  B.  declined 
to  amend,  whereupon  the  judge  ordered  a 
nonsuit.  Held,  that  under  the  pleadings 
n.  was  not  entitled  to  prove  any  interest 
under  the  contract.  Harris  v.  Richmond  Sf* 
D.  R.  Co.,  31  So.  Car.  87,  9  5.  E.  Rep.  f>i)o. 

00.  Ilruarli  ot'eoiitrncts,  K<'»*'riilly« 
— Under  a  declaration  for  a  breach  by  a 
company  of  a  contract  to  use  and  pay 
monthly  for  water,  in  consideration  liiai 
plaintiff  would  build  and  keep  a  tank,  al- 
leging that  all  the  materials  were  put  up 
only  for  the  advantages  to  accrue  from  said 
contract,  and  are  a  total  loss,  being  of  no 
value  for  any  other  purpose,  iilaintill  may 
show  a  partial  loss,  such  as  deterioration  in 
value,  owing  to  the  market  here  not  being 
good.  A'ni'  Orleans,  J.  iS-  G.  N.  R.  Co.  v. 
Echols.  54  Miss.  264. 

PlaintifT  sued  before  a  justice  upon  a 
claim  made  out  in  the  form  of  an  ordinary 
■iccount  for  certain  ties  and  lumber,  where 
an  action  of  assumpsit  was  the  proper 
remedy  ;  but  the  evidence  showed  that  tin- 
ties  and  lumber  w«!i(?  taken  without   ph.i.i- 


ir  "11 


1024 


PLEADING,  U7-09. 


if 


(H 


pm    >) 


tiflf's  consent  and  converted  to  defendant's 
use,  which  would  have  supported  an  action 
of  trover.  N^M,  that  there  was  a  fatal 
variance,  and  the  action  should  be  dis- 
missed. Sandeen  v.  Kansas  City,  St.  J,  &* 
C.  /{.  A'.  Co.,  79  Mo.  278. 

1>7.  Brvacli  of  contract  to  build  or 
rcHtoro  depot.— In  an  action  airainst  a 
railroarl  for  breach  of  contract  in  failing  to 
erect  a  depot  according  to  contract,  a  gen- 
eral allegation  of  damages  caused  thereby, 
with  a  prayer  for  a  stated  amount,  is  suffi- 
cient to  allow  the  introduction  of  evidence 
of  all  damages  naturally  and  necessarily  re- 
sulting from  a  failure  to  erect  the  depot. 
Louisville,  St.  L.  &^  T.  A'.  Co.  v.  A'ea/us, 
93  A>.  53.  18  S.  ir.  K.'p.  1030. 

Plaintifl  alleged  that  he  was  the  owner  of 
lands  adjoining  the  former  site  of  defend- 
ant's depot  at  a  certain  place  ;  that  because 
of  the  vicinity  of  the  depot  said  lands  were 
valuable  for  business  purposes,  and  plaintitT 
had  erected  thereon  stores  and  buildings, 
having  borrowed  the  money  for  that  pur- 
pose, which  was  secured  by  mortgage  on 
the  property  ;  that  because  of  the  refusal  o'. 
plaintiff  and  others  to  surrender  to  defend- 
ant, without  compensation,  certain  valuable 
riparian  rights  defendant  removed  its  de|>ot, 
whereby  plamtifl's  property  was  greatly  de- 
preciated in  value,  and  could  only  be  re- 
stored and  saved  from  foreclosure  by  a 
restoration  of  the  depot;  that  to  secure 
this  plaintiff  entered  into  a  contract  with 
defendant  by  which  he  surrendered  to  it 
said  riparian  rights,  in  consideration  of  de- 
fendant's agreement  to  re-establish  and  for- 
ever to  maintain  its  de|>ot  at  the  former 
site,  and  thereupon  the  mortgagee  agreed 
to  delay  a  foreclosure  sale ;  that  defendant 
built  its  depot  on  the  old  site,  but  because 
of  plaintiff's  refusal  to  consent  to  tlic  clos- 
ing of  a  street,  which  would  seriously  injure 
h'8  property,  without  compensation,  defend- 
ant, fully  understanding  plaiiititT's  position, 
wilfully  and  maliciously  violated  its  con- 
tract, and  doKiyed  a  restoration  of  the  depot, 
for  the  express  purpose  of  preventing  plain- 
tiff from  l)eing  enabled  to  ward  off  a  fore- 
closure, and  instigated  and  induced  the 
•  iorigaj;';f  to  foreciose,  and  the  property 
•vas  sold  at  a  great  sacrifice.  Upon  the 
trial  it  was  conceded  that  a  g(>od  cause  of 
action  sounding  in  tort  was  stated  in  tiie 
complaint.  Plaintiff  offered  to  prove  the 
agreement  to  restore  the  depot,  and  its 
breach     that  the  restoration   would  have 


greatly  enhanced  the  value  of  his  prop- 
erty ;  also  to  show  what  defendant  did  m 
procuring  and  instigating  the  foreclosure 
sale ;  also  the  declarations  of  defendant's 
officers  as  to  the  reasons  for  refusing  to  re- 
store the  depot.  These  were  rejected  as  im- 
material. Held,  error.  Rich  v.  Neti'  York 
C.  &•  //.  /\'.  A'.  Co.,  1 1  j-lui.  c~»  /ui^.  A'.  Cas. 
594,  87iV.   r.  382. 

Wi.  Krcacli  of  coiitractH  witli  imin- 
HCiiiccrH.— Where  plaintifT  sued  (or  a  failure 
to  supply  six  cars,  according  to  contract,  for 
an  excursion,  evidence  that  defendant  re- 
fused to  furnish  four  cars,  on  request,  shows 
no  breach  of  contract  where  there  is  nothing 
to  show  that  the  contract  was  not  to  be 
performed  as  an  entirety.  Illinois  C.  R. 
Co.  v.  Demars,  44  ///.  292. 

Where  a  company  agrees  to  furnish  cer- 
tain cars  to  an  individual,  to  be  used  in  an 
excursion,  each  |)assenger  paying  a  fixed 
sum  for  a  ticket,  the  measure  of  damages 
for  a  failure  to  furnish  the  cars  is  the 
amount  that  would  have  been  received  for 
such  tickets  if  the  train  had  gone,  less  the 
amount  to  be  paid  for  the  cars.  Illinois  C. 
R.  Co.  v.  Demars,  44  ///.  292. 

If  the  complaint  in  an  action  for  failure 
to  carry  a  passenger  to  her  destination  con- 
ta'/  s  no  averment  relative  to  the  declara- 
tiom  made  to  her  by  the  ticket  agent  to  the 
eflcc;  that  the  passenger  might  board  the 
train  without  a  ticket  and  i)ay  her  fare  on 
the  car,  evidence  of  such  ficclarations  is 
inaumissible.  Wells  v.  Alabitma  G,  S.  A'. 
Co.,  40  Am.  &-  Eng.  A'.  Cas.  645,  67  Afiss.  24, 
6  So.  Rep.  737. 

00.  Injuries  to  realty,  geiu'^rally.— 
In  .in  action  .igainst  a  company  for  building 
a  railroad  embankment  in  front  of  real 
estate,  an  averment  that  plaintiff  is  the 
owner  and  possessor  of  the  lot  does  not 
compel  proof  of  a  fee  simple  title.  Proof 
of  peaceable  possession  and  damage  is  all 
that  is  required.  McCormick  H,  Alacli. 
Co.  V.  Aiidf,  47  ///.  -•///.  542. 

Wlicre  a  plaintiff  alleges  damages  by  a 
railroad  company  to  160  acres  of  land,  he 
cannot  prove  damages  to  the  ctitire  240 
acres  of  his  '■.irm  at  so  much  per  acre. 
W'altimeyer  v.  U'i.uotisiti,  f,  &-•  A'.  R.  Co., 
io  Am.  &' Eiig.  R.  Cas.  384,  y\  Imva  626. 
33  A'.  W.  Rep.  140. 

An  abutting  owner  sued  to  re-train  de- 
fendant from  conslriictmg  and  o()eraling  a 
railway  in  the  street  upon  the  ground  that 
defendant  had  net  obtained  ilic  consent  of 


)f  his  prop- 
itlant  did  m 
foreclosure 
defendant's 
Fusing  to  rc- 
iectcd  as  ini- 
.'.  A'l'ii'  \'ori' 
'■^>ig.  A'.  L'tts. 

witli  pas- 

1  font  failure 
contract,  for 
effiidant  re- 
quest, shows 
re  is  nothing 
IS  not  to  be 
'linois  C.   A', 

furnish  cer- 
L-  used  in  an 
Mng  a  fixed 
of  damages 
cars  is  the 
received  for 
[one,  less  the 
i.    Illinois  C. 

n  for  failure 
tinalion  con- 
thc  declara- 
agent  to  the 
It  hoard  the 

her  fare  o:i 
clarations  is 
ma  G.  S.  A', 

67  Miss.  24. 

eiM^rnlly.— 

for  building 
•oiu  of  real 
inlilT  is  the 
lot  docs  not 
title.  Proof 
aiiKige  is  all 
:•    H.   Much. 

images  by  a 
i  of  land,  he 

2  entire  240 
ch  per  acre, 
\"  N.  A\  Co., 
n   Jim'ti  626, 

restrain  dc- 
I  operating  a 
ground  that 
(•  roijsent  of 


w 


PLEADING,  100-104. 


1025 


■ 


the  owners  of  one  half  of  the  property  on 
the  street,  nor  of  the  court,  as  required  by 
the  constitution  anri  the  statute  relating  to 
street  railroads.  Heltl,  that  the  only  cause 
of  action  alleged  was  a  failure  to  obtain  the 
consents,  as  required  by  tlie  constitution 
and  statute,  and  therefore  plaintilT  could 
not  recover  on  the  ground  that  defendant 
was  a  trespasser  upon  the  street,  the  fee  of 
one  half  of  which  vested  in  plaintilT.  Jiene- 
diet  V.  Saienth  Ward  R.  Co.,  24  N.  Y.  S. 
A'.  169.  5  N.  v.  Sitpp.  406.  — Foi.i.owiNc; 
Vail  7A  Long  Island  K.  Co.,  106  N.  V.  283. 

100.  Flooding  laiuls.— Where  a  dec- 
laration alleges  the  construction  of  a  dam 
by  a  company  on  its  land  adjoining  that  of 
plaintifT,  and  thereby  overflowing  the  land 
of  the  latter,  and  the  proof  shows  the  clos- 
ing of  a  culvert  under  its  road  by  defend- 
ant through  which  the  water  was  accus- 
tomed to  flow,  this  will  sustain  the  allegation 
in  the  pleading.  Illinois  &*  Si.  L.  K.  &^  C. 
Co.  v.  Fe/itinxt'r,  82  ///.  1 29. 

In  an  action  for  overflowing  plaintifT's 
land,  witnesses  were  permitted  to  state  how 
much  more,  if  any,  the  land  of  plaintih 
woul(j  have  been  worth  between  certain 
named  dates  if  the  water  had  not  been  made 
to  run  over  it.  The  petition  alleged  that 
plaintifT  sustained  damages  by  reason  of  the 
overflow  of  his  lands  during  the  time  named 
by  the  witnesses,  and  specified  certain  in- 
juries, all  in  the  nature  of  damage  to  real 
estate.  Ileld,  that  the  testimony  was  neither 
incompetent  nor  immaterial,  and  that  its 
admission  was  not  erroneous  011  the  ground 
that  it  adopted  a  wrong  measure  of  dam- 
ages. J'edt.'  V.  Chicago,  A'.  I.  Sr*  P.  A'.  Co., 
78  /o7t'a  131,  4  /,.  A'.  /•/.  401,  42  N.  W.  A'e/>. 
625. 

101.  NiliMiiiiceH.— In  an  action  by  a 
church  as  a  corporation  against  a  railroad 
for  damages  for  maintaining  a  iuiisan<;.c 
near  the  church  buiKliiig.  the  defendant 
pl<*adc(i  nul  tiel  corporation.  Held,  that 
such  evi<lence  as  showed  it  a  corpora'ion 
df  facto  Would  enable  it  to  maintain  the 
action,  lialtimore  &•  P.  R,  Co.  v.  /•///// 
Mttptist  Church.  137  U.  S.  568,  11  Sii/i.  Ct. 
Htp.  i8i;.~F(>i.i.<JwiNt;  Cincinnati,  L.  F.  Si 
C.  R.  Co.  V.  Danville  &  V.  K.  Co.,  ^5  111. 
113;  Stocictoii  h  L.  G.  R.  Co.  v.  Stockton  & 
C.  R,  Co.,45  Cal.  680. 

102.  OhHtriM'tiiic  at'oeNw  to  plain- 
till  N  (ilarc  or  ImimIim'mh.  —  Where  the 
cause  of  action  stated  in  a  declaration  is 
obstructing  defendant's  own  track  with  cars 

ti  D,  R.  11.-65 


so  as  to  prevent  passengers  from  crossing 
over  to  plaintifT's  eating  house,  and  there  is 
no  averment  of  the  obstruction  of  a  cross- 
ing or  public  way  over  the  track,  evidence 
of  such  is  inadmissible.  J)isbrow  v.  Chicago 
&'  N.  W.  A'.  Co.,  70  ///.  246. 

ton.  other  avtioiiH  relating  lo 
realty.— A  bill  was  filed  to  foreclose  a 
deed  of  trust  given  on  a  tract  of  land  upon 
which  a  company  had  by  grant  a  right  of 
way,  but  neither  the  original  bill  nor  any  of 
the  subsequent  pleadings  in  anyway  sought 
t<]  defeat  the  right  of  the  company  to  the 
right  of  way  except  that  it  was  included  in 
and  subject  to  the  original  trust  deed,  and 
no  issue  was  raised  by  the  piearlings  under 
which  the  validity  of  the  com|)any's  deed 
could  be  attacked.  /Icltl,  that  evidence  to 
show  the  breach  of  a  condition  subsc(|uent 
in  the  company's  deed  was  properly  ex- 
cluded. Jioong  V.  Clark,  12<)  III.  4,6(^,  21  A^, 
E.  Rep.  850. 

In  ail  action  (or  breach  of  a  covenant  of 
warranty,  plaintifT  alleged  that  he  subse- 
quently ;'cquired  title  from  the  paramount 
owner,  "the  Des  Moines  Valley  Railroad 
Company."  Held,  that  he  could  not  be  per- 
mitted to  prove  that  he  acquired  title  from 
"the  Des  Moines  &  Fort  Dodge  Railroad 
Company."  Burns  v.  Iowa  Homestead  Lo., 
48  Iowa  279. 

Defendant  in  an  action  of  trespass  to  try 
title  pleaded  not  guilty,  and  title  under  a 
foreclosure  sale  under  a  mortgage  by  a  rail- 
way company  of  which  one  H.  was  presi- 
dent; that  H.  had  bought  the  land  for  the 
company.  Plaintiff  exhibited  a  title  under 
H.  It  was  shown  that  he  had  paid  for  the 
land.  Held,  that  under  these  defenses  de- 
fendart  could  not  establish  a  parol  executed 
sale  b,  H.  to  it.  Rio  Grande  <S^  /•".  /'.  A'. 
Co,  V.   AMilmo.j^   Tex.  628,   15    X.  W.  Rep. 

475- 

104.  Action  aitninHt  ICHsee  or  con- 
HolidateU  road.— Where  one  count  al- 
leges that  the  railroad  where  the  iiijuiy  oc- 
curred was  operated  under  a  lease  by  the 
company  against  which  suit  was  brought, 
and  the  other  count  alleges  that  defendant 
was  using,  controlling,  and  running  the 
other  road,  without  specifying  the  form  of 
contract  or  the  agreement  under  which  it 
was  so  controlling  and  running  it,  evidence 
of  the  fact  that  defendant  was  using  and 
controlling  the  other  road  sustains  the 
latter  count,  and  is  sufTtcient  without  further 
proof  as  to  that  point  to  maintain  the  ac- 


If 


1026 


PLEADING,  105-107. 


5  Pi' 
'ft 


B^i 


MM 


'if 


II, 


'■i  I 


w 


lion.    Central  A\  &•  D.  Co.  v.  Camlih;  77 
<;<!.  584.  3  S.  E.  Ri'p.  287. 

A  complaint  clinrKing  that  a  railroad  cor- 
poration known  as  tlie  C,  C.  &  I.  C.  railway 
company  killed  un  animal  bulon^in^;  to 
plaintitT,  and  after  the  killing  consolidated 
with  another  company,  and  is  n<jw  run  and 
known  as  the  I'.,  C.  &  St.  L.  railway  com- 
pany, is  not  supported  by  the  evidence  fail- 
ing to  show  the  consolidation  charged. 
J'ittsl>tiri;h.  C.  «&-  S/.  L.  K.  Co.  v.  Kain,  35 
Jnd.  291,  5  Am.  h'y.  Kep.  574. 

105.  CreditorN' action^.— Where  of- 
ficers of  a  corporation  are  sued  to  recover 
certain  bonds  which  it  is  claimed  belonged 
to  the  corporation  but  arc  wrongfully  held 
by  the  officers,  and  an  answer  is  tiled  alleg- 
ing the  absolute  ownership  by  defendants, 
it  is  competent  for  them  to  prove  that  the 
bonds  were  given  them  as  security  for  a 
debt.  Loeh  v.  Chur,  6  A'.  Y.  Supp.  296,  53 
Hun  6yj,  25  A^.  Y.  S.  A".  996;  affirnieii  in 
12SN.  Y.  726,  26  A'.  H.  Rep.  756. 

100.  ActioiiH  UKiiiiiHt  curriers  of 
iiiereliaiidiMC.— Plaintiff  declared  upon  a 
contract  to  carry  certain  freights  from  Eu- 
faula,  Ala.,  to  Albany,  Ga.,  but  proved  a  con- 
tract to  carry  from  Louisville,  Ky.,  via 
Atlanta  to  (Quitman,  Ga.  Held,  that  the 
evidence  did  not  support  the  declaration, 
and  there  could  be  no  recovery  on  such 
proof.  Central  /•'.  6-  Ji.  Co.  v.  Tucker,  79 
Ga.  128,45.  E.  Rep.  5. 

A  declaration  against  a  common  carrier 
alleging  an  alternative  contract  to  deliver 
to  plaintifT,  or  to  a  third  party  for  piaintifT, 
is  not  supported  by  proof  of  a  contract  to 
deliver  to  and  for  such  third  party.  Nor 
docs  such  proof  support  the  more  loose  al- 
legation of  a  contract  to  deliver  generally 
for  plaintifT,  without  specifying  to  whom. 
Atlanta  &*  IV.  J'.  R,  Co.  v.  Texas  Grate  Co., 
40  Am.  &*  Eng.  R.  Cas.  1 30,  81  Ga.  602,  9 
S.  E.  Rep.  600. 

Where,  in  an  action  against  a  common 
carrier  for  a  delay  in  the  transportation  and 
delivery  of  live  stock,  the  complaint  is  based 
upon  a  special  contract,  plaintifT  cannot  sus- 
tain his  action  by  proof  of  a  breach  of  an 
implied  contract,  or  of  the  legal  dut/  of  de- 
fendant as  a  common  carrier  to  transport 
the  stock  in  a  reasonable  time.  In  such 
case  there  is  not  a  variance,  but  a  failure  of 
proof.  Jejfenonville,  M.  Sr*  I.  R.  Co.  v. 
Worland,  50  Ind.  339.— Followed  in  Jef- 
fersonville,  M.  &  I.  K.  Co.  v.  Ensley,  50  Ind. 
378. 


Evidence  that  a  company  received  and 
was  paid  for  transporting  property,  and  that 
after  its  transp(jrtati<jn  it  was  placed  in  a 
dep(Jt,  and  w:is  not  delivered  upon  a  proper 
demand,  will  support  a  declaration  alleging 
that  the  company  received  the  property, 
agreed  to  deliver  it,  but  neglected  and  re- 
fused to  do  so.  Lane  v.  Jioston  &^  A.  R.  Co., 
1 12  Mass.  455. 

Where  the  petition  does  not  allege  that 
the  ciirrier  knew  of  the  necessity  of  the 
performance  of  the  contract  at  once,  and 
that  any  failure  or  delay  on  its  part  to  per- 
form the  contract  promptly  would  cause  a 
suspension  in  business  on  the  part  of  the 
consignor,  evidence  as  to  these  facts  is  in- 
admissible. Pacific  Exp.  Co.  v.  Darnell,  62 
Tex.  639. 

Where  a  carrier  is  sued  for  goods  de- 
scribed in  the  declaration  as  "  one  box  of 
oil-well  tools,  one  drill  stem,  and  one  sand 
pump,"  it  is  proper  to  put  in  evidence  the 
carrier's  receipt,  which  describes  the  articles 
as  "  one  box  boring  tools,  one  boring  stem, 
and  one  s.md  pump,"  am'  to  give  evidence 
that  a  drill  stem  and  boring  stem  were  the 
same  thing,  the  two  names  being  applied 
indifiercntly  to  the  same  article.  Williams 
V.  lialtimore  &*  O.  R.  Co.,  9  W.  Va.  33. 

107.  AetioiiH  fur  iii>|j:liKCiivu,  kcii- 
orally. — (1)  Evidence  admissidle.— Under 
a  general  averment  that  "  the  injury  com- 
plained of  was  the  result  of  negligence 
or  want  of  skill  of  defendant's  employes  ttt 
the  management  and  running  of  a  train,' 
evidence  is  admissible  that  defendant  did 
not  have  on  the  train  a  suilicieiit  number  of 
brakomen  and  servants  to  control  it.  .SotttA 
&•  A'.  Ala.  R.  Co.  V.  TAotf,  t>son,  62  Ala.  494. 
— Ari'l.iKO  IN  Stanton  v.  Louisville  &  N. 
R.  Co.,  91  Ala.  382. 

The  fact  that  evidence  admitted  in  an  ac- 
tion based  on  negligence  may  tend  to  sup- 
port a  charge  of  negligence  not  made  by 
the  declaration  will  not  render  it  improper, 
if  it  has  a  material  bearing  upon  one  or 
more  of  the  charges  of  negligence  made. 
Defendant  may,  by  instruction,  limit  such 
evidence  to  the  charges  made  in  the  declara- 
tion. North  Chicago  St.  R.  Co.  v.  Cotton,  52 
Am.  &'  Etig.  R.  Cas.  238,  140///.  486,  29  A'. 
E.  Rep.  899  ;  affirtniftg  41  ///.  ///;).  311. 

In  actions  based  on  negligence  the  alle- 
gations of  the  declaration  and  the  proof 
must  agree.  Chicago,  U.  &•  Q.  R.  Co.  v. 
Dickson,  143  ///.  368.  32  A'  E.  Rep.  380.— 
Applyino  Chicago,  B.  &  ^.  K.  Co.  v.  Bell. 


PLEADING,  108-I10. 


1027 


:ccived  and 
rty,  iiiul  that 
placed  in  a 
)on  a  proper 
lion  ulle^inK 
tie  properly, 
:tcd  and  re- 
S-  A.  a:  Co., 

alle}{c  lliat 
ssity  of  the 
X  once,  and 

part  to  per- 
)uld  cause  a 

part  of  tlie 
:  facts  is  in- 
.  Darnell,  62 

r  goods  fle- 
'  one  box  of 
lid  one  sand 
^vidence  tlie 
s  the  articles 
boring  stem, 
ive  evidence 
em  were  the 
eing  applied 
;.     Williams 

.  ya.  33. 

hie.  —  Under 

injury  coni- 

negligcnce 

employer,  m 

of  a  train," 

^fendant  did 

It  number  of 

ol  it.     South 

,  62  .^/(i.  494. 

lisville  &  N, 

ted  in  an  ac- 
tend  to  sup- 
lot  made  by 

it  improper, 
upon  one  or 
gence  made. 
I,  limit  such 
1  the  declara- 

V.  Cot /on,  5  a 
7.  486,  29  A^. 
•W-  3". 
nee  the  alle- 
d  the  proof 
Q.  A.  Co.  V. 
,  A'e/i.  380.— 

.  Co.  V.  Bell, 


113  III.  360.  Reviewing  Wabash,  St.  L. 
&  P.  R.  Co.  V.  Coble,  113  111.  115;  Indian- 
apolis &  St.  L.  K.  Co.  V.  Estcs,  96  III.  470. 
—Springfield  City  R.  Co.  v.  De  Camp,  1 1  ///. 
•^/*/*-  475-  Chiiago,  />'.  <^  A'.  A  Co.  v. 
Hawk,  42  ///.  App.  322  ;  affirmed  tn  147  ///. 
3W.  35  ^'  t''-  t^*i>-  '39'  ielle  V.  Leaven- 
worth  A.  T.  A.  Co.,  50  Kan.  455,  31  Pac. 
Aep.  1076.  Hurley  v.  Missouri  i'ai.  A.  Co., 
93  Mo.  445,  12  West.  Aep.  330,  6  S.  W.  Aep. 
218. 

Upon  a  general  issue  of  negligence  in 
the  manner  of  running  a  street-car,  whereby 
plamtifl.  a  passenger,  was  injured,  it  is  com- 
petent to  prove  the  disposition  of  the  horses 
hauling  the  car,  whether  they  were  vicious 
or  not,  and  m  the  habit  of  starting  the  car 
with  a  jerk.  Douj^herty  v.  Missouri  J'ac. 
A.  Co.,  34  Am.  <S«»  /•.';(4'.  A.  Cas.  488;  see 
also  37  Atn.  <S-  £"/%'.  A'.  Cas.  206,  97  Mo.  647, 
15  West.  Rep.  235,  8  S.  W.  Rep.  900,  11  S. 
W.  Rep.  251. 

Underacommon  lawcount  for  negligence 
plaintifl  may  prove  any  negligence  of  the 
company  that  contributed  to  the  injury 
complained  of,  including  a  failure  to  ring  the 
bell  or  sound  the  whistle ;  and  so  of  the  proof 
ol  failure  to  fence.  And  the  statement  is  sus- 
ceptible of  amendment  under  Mo.  Rev.  St. 
§  3060,  but  if  made  and  based  upon  absence 
of  a  lawful  fence  the  proof  must  be  limited 
to  that  ground.  Jioone  v.  Waias/i,  St.  L. 
<S-  P.  R.  Co.  20  Mo.  App.  232.— Following 
M inter  v.  Hannibal  &  St.  j.  R.  Co.,  82  Mo. 
128.— Explained  in  Hill  v.  Missouri  Pac 
R.  Co.,  49  Mo.  App.  520. 

Where  the  drunkenness  of  a  flagman  at  a 
certain  crossing  where  ])laintitT  was  injured 
is  a  mere  incident  or  circumstance  tending 
to  show  negligence,  it  may  be  proven  under 
a  general  allegation  of  negligence.  Inter- 
national &'  G.  A\  R.  Co,  v.  Vyer,  76  Tex. 
156,  liS.  W.  Aep.  377. 

(2)  Evidence  inadmissible. — Where  the  ac- 
tion is  for  killing  live  block,  and  the  negli- 
gence charged  is  in  the  management  of  the 
train,  it  is  not  supported  by  evidence  t'.at 
the  train  was  too  heavy.  Central  M.  T.  R. 
Co.  V.  Aocka fellow,  17  ///.  541. 

If  the  negligence  of  a  defendant  in  a  suit 
for  an  injury  is  established  by  the  evidence, 
that  evidence  must  necessarily  have  been 
confined  to  the  averments  of  the  declara- 
tion, as  negligent  acts  not  averred  in  the 
declaration  cannot  be  proven.  Pennsylva- 
nia Co.  V.  Frana.  112  ///.  398. 

Where  an   employe  sues   fur    an    injury 


caused  by  a  collision,  evidence  tending  to 
show  negligence  in  failing  to  use  airbrakes, 
and  (ailing  to  have  a  semaphore  for  signal- 
ing trams,  is  not  admissible,  when  no  negli- 
gence from  these  causes  is  alleged.  C/iimi;o, 
/.'.  ^  Q.  A.  Co.  V.  Voung,  26  ///.  App.  1 1 5. 

A  complaint  charging  a  company  only 
with  negligence  in  the  movement  of  a  par- 
ticular train  without  warning  does  not  in- 
volve, as  a  cause  of  action,  the  neglect  of 
the  company  to  establish  general  regulations 
for  the  conduct  of  its  servants  in  such  cases. 
Connelly  v.  Minneapolis  Eastern  A,  Co.,  38 
Minn.  80.  35  A'.   W.  Aep.  582. 

Under  a  general  allegation  of  negligence 
it  is  error  to  admit  evidence  or  give  an  in- 
struction as  to  the  general  condition  of  the 
track  of  defendant.  Had  the  ple.iding  been 
amended  in  this  respect,  evidence  of  the 
condition  of  the  track  at  another  time  and 
place  than  that  of  the  accident  would  still 
be  incompetent.  Miller'x,  St.  Louis  A.  Co., 
5  Mo.  Apf>.  471. 

lOM.  Proof  of  liifflior  dcgn^o  of 
iici;lig;(>ii«!»  tliaii  that  nllcgcil.— Under 
a  count  which  avers  simple  negligence,  in 
an  action  to  recover  damages  for  personal 
injuries,  a  recovery  may  be  had  on  proof  of 
wanton  or  reckless  negligence.  Savannah 
&»  W.  R.  Co.  v.  Meadors,  95  Ala.  137,  10  So. 
Rtp.  141.  Richmond  &*  D.  R.  Co.  v.  Farm- 
er, 97  Ala.  \\\,  12  So.  Rep.  86. 

Where  the  issue  is  one  of  ordinary  negli- 
gence, a  charge  of  wilful  injury  makes  a  dif- 
ferent cause  of  action,  and  evidence  of  the 
latter  is  not  admissible.  Pennsylvania  Co, 
V.  Smith,  98  Lnd.  42. 

100.  Proof  of  lower  (IcKrco  of  iic^- 
ligciicu  tlinii  tliat  cliurgcd. — A  plaintiff 
must  recover,  if  at  all,  upon  the  case  made 
by  his  declaration.  So  a  plaintiff  cannot 
charge  one. species  of  negligence  in  his 
declaration, and  recover  upon  proof  of  negli- 
gence of  a  different  character.  North  Chi- 
cago St.  R.  Co.  V.  Cotton,  52  Am.  Sr*  Eng.  R. 
Cas.  238,  140  ///.  486,  29  A'.  E.  Rep.  899; 
affirming  41  ///.  App.  311.  Chicago,  R.  &* 
Q.  R.  Co.  V.  Dickson,  88  ///.  431,  21  Am.  Ry. 
Rep.  328. 

110.  Personal  iiiJiiricH,  generally. 
—  (I)  Evidence  admissible. — Plaintiff  alleged 
that  he  was  a  minister,  but  also  engaged  in 
other  avocations  at  times,  and  that  by  the 
injury  he  was  prevented  from  the  proper 
prosecution  of  his  avocations.  Held,  that 
evidence  of  the  amount  of  salary  that  he 
had  received  as  a  minister  was  proper  fur 


■> 

i 

!■ 

If ' 

'■  S 

1 

I    '^F: 

III 

ifi 


1028 


PLEADING,  110. 


the  iury  to  consider  in  cstimntin^r  his  dam- 
ages, /'iirs/iii//  V.  Minneapolii  &*  S/,  /,.  A*. 
Co.,  35  AVi/.  AV/.  649. 

WliL-re  the  cumplaint  alleges  that  [)lain- 
tifT  "was  violently  aii<l  grievously  bruised, 
mangled,  and  broken,  to  wit :  in  and  upon  liis 
head,  arm.;,  legs,  and  body,  and  particularly 
as  to  serious  injury  and  wounding  of  his  in- 
ternal vital  organs,"  evidence  is  admissible 
to  show  injuries  to  his  kidneys,  urinary 
organs,  anr!  nervous  system.  Cfnltal  A'. 
Co.  V.  Milihell,  i  Am.  Sr»  ling.  A',  Can.  145, 
63  Cii.  173. 

An  averment  that  plaintiff  had  "  become 
wholly  rrippled  and  maimed,  and  prevented 
from  actively  pursuing  his  business  for  life," 
authorizes  the  admission  of  evidence  that 
the  injury  would  be  deleterious  to  the  plain- 
tiff's nervous  as  well  as  to  his  general  sys- 
tem, and  that  it  would  diminish  his  strength 
and  power  of  physical  endurance.  lI'afiasA 
A'.  Co.  V.  Sitvage,  28  Am.  6-  Kttg.  A'.  Cus. 
288,  1 10  Itiil.  156,  9  i\.  E.  Hep,  85. 

A  declaration  alleged  that  plaintiff  was 
knocked  down  and  thereby  bruised,  hurt, 
ano  wounded,  and  that  divers  bones  of  her 
body  were  broken,  and  that  she  was  griev- 
ously wounded  internally.  Held,  broad 
enough  to  include  injuries  to  the  internal 
reproductive  organs,  and  sufficient  to  admit 
evidence  that  the  injuries  had  produced 
permanent  sterility  or  incapacity  to  perform 
the  sexual  duties  incident  to  the  marriage 
state.  Lake  Shore  tS->  J/.  ..V.  A".  Co.  v.  IWird. 
13s  ///.  511,  26  N.  K.  Rep.  520;  affirming  35 
///.  APP.  423. 

Evidence  that  the  company's  servants  in 
charge  of  the  train  discovered  plaintifT's 
peril  in  time  to  have  averted  the  injury  is 
admissible  under  an  averment  that  defend- 
ant's agents  negligently  moved  and  man- 
aged the  train  by  which  the  injury  was  oc> 
casioned.  Dickson  v.  Atissouri  Pac.  A*.  Co., 
104  Mo.  491,  16  S.  IV,  Rep,  381.— Dl.STlN- 
GUISHING  Waldhierv.  Hannibal  &  St.  ).  R. 
Co.,  71  Mo.  514.  Reconciling  Crane  v. 
Missouri  Pac.  R.  Co.,  87  Mo.  588 ;  Gurley  v. 
Missouri  Pac.  R.  Co.,  93  Mo.  445. 

An  allegation  that  plaintiff's  injuries  were 
sustained  "  through  the  negligence  and 
carelessness  of  defendant's  agents  and  ser- 
vants while  running,  controlling,  and  man- 
aging this  locomotive  engine  and  train  of 
cars  "  IS  sufficient  to  admit  proof  of  negli- 
gence in  running  defendant's  train.  Gratiot 
V.  Missouri  Pac.  R.  Co..  (Mo.)  49  Am.  &* 
Et^.  R.  Cat.  398.  16  S.  W.  Rep,  384. 


Where  plaintiff  sues  for  an  injury  to  his 
hand  and  charges  that  it  "  was  serious,  per- 
manent, and  |)ainful,"  this  is  sutricieiit  to 
support  evidence  that  the  injury  to  the 
hand  occasioned  an  injury  to  his  gonenil 
health.  Hamee  v.  lirooklyn  El.  R,  Co..  66 
Hun  384.  50  A'.  )'.  .V.  A'.  255,  21  A'.  Y,  Supp, 
230. 

Under  a  general  allegation  of  damage 
plaintiff  is  entitled  to  recover  not  only  for 
pain  and  siilfering  endured  up  to  the  time 
of  the  trial,  but  for  such  as  probably  re- 
mains to  be  endured.  Accordingly  held, 
that  the  testimony  of  a  physician  as  to  the 
condition  of  plaintiff's  eye  at  the  time  of 
the  trial,  and  that  of  plaintiff  to  the  effect 
that  the  p,>in  and  suffering  attending  his 
injuries  had  ctrntinuefl,  was  proper.  Schuler 
V.  Third  Ave.  R.  Co..  48  A'.  Y.  S.  R.  663,  i 
Misc.  351,  20  A'.  Y.  Supp.  683 ;  affirming  44 
A'.  Y.  S.  R.  774. 

An  allegation  that  plaintiff  has  received 
personal  "  injuries  in  his  spine,  chest,  head, 
and  limbs "  will  authorize  evidence  that 
heart  disease  has  resulted  from  the  injury 
inflicted.  Gulf.  C.  «S-  S  F.  R,  Co.  v.  Mc- 
Mannnvits,  34  Am.  &*  Eng,  R,  Cas,  428,  70 
Tex.  73.  8  ,^:   IV,  Rep.  66. 

Under  an  allegation  that  on  account  of 
injuries  sustained  plaintiff  was  confined  to 
his  bed  for  about  three  months,  and  that  by 
reason  thereof  he  has  been  disabled  and 
prevented  from  pursuing  his  occupation, 
evidence  is  admissible  showing  the  length 
of  time  he  was  out  of  employment.  Ft, 
Worth  &*  D.  C.  R.  Co.  v.  Thompson,  2  7 ex. 
Civ.  App.  1 70,  2 1  .S'.  W,  Rep   1 37. 

Under  allegations  that  plaintiff  was  per- 
manently disabled  to  follow  his  occupiit:on 
and  rendered  unable  to  earn  a  livelihood, 
evidence  of  his  prior  occupation  and  wages 
is  admissible,  and,  though  such  allegations 
are  not  broad  enough,  the  admission  of  the 
evidence  is  not  ground  of  exception  under 
Wash.  Code,  §  105.  Northern  Pac.  R.  Co  v. 
O'lirien,  i   Wash.  599.  21  Pac.  Rep.  32. 

Under  an  allegation  that  defendant  so 
negligently  and  unskilfully  conducted  itself 
in  the  management  of  its  car  that  through 
the  negligence  c!  defendant  and  its  servants 
in  guiding  the  car  plaintiff  was  injured,  it  is 
admissible  to  prove  defects  in  the  brake-rod 
of  the  car.  Cogswell  v.  West  St.  <&-  A'.  E. 
Elec.  R.  Co..  52  Am  &*  Eng.  R.  Cat.  500,  5 
Wash.  46,  31  Pac,  AV/>.  411.  —  Quoting 
Northern  Pac.  R.  Co.  v,  O'Brien,  i  Wash. 
599,  21  Pac.  Rep.  32. 


PLEADING,  111. 


1059 


njury  to  liis 
serious,  jiLT- 
suiricient  lo 
jury  tu  the 
his  grncral 
f.  A'.  tV'..  66 

N.  y.  su/>p. 

of   damage 

not  only  for 

to  the  time 

|)r<ihal)lv  re- 

(liiigiy   /ii/it, 

in  as  to  the 

the  time  of 

o  the  efTect 

ttenrhn^r  his 

[jer.    Sc/iuler 

.  S.  h\  663.  I 

affirmitt);  44 

has  received 
,  chest,  head, 
iridencc  that 
[«  the  injury 
.  Co.  V.  Mi- 
On.  428,  70 

n  account  of 
s  confined  to 
3,  and  that  by 
disabled  and 
I  occupation, 
g  the  length 
lynicnt.  Ft. 
Upson,  2  'lex. 

37- 

ntiflf  was  per- 
is occupiition 

a  livelihood, 
}n  and  wages 
;h  allegations 
lission  of  the 
zeption  under 
rac.  A'.  Co  V. 

Kep.  32. 
defendant  so 
iducted  Itself 
that  through 
id  Its  servants 
s  injured,  it  is 
the  brake-rod 

St.  <S-  A'.  E. 
K.  Cat.  500,  S 
.  —Quoting 
rien,  i  Wash. 


Where  plaintifT  sues  for  an  injury  charged 
to  have  resulted  from  defentlant's  iK-gli- 
gence,  and  defendant  answcni  charging  con- 
tributory  negligence,  it  is  competent  for 
piaintill  to  prove  negligence  in  other  re- 
spects than  that  charged  where  it  tends  to 
dis|>rovc  the  charge  of  contributory  negli- 
gence. Curtis  V.  Detroit  tS-  Al.  R.  Co.,  27 
U'is.  158,  5  //»«.  Ay.  Rep.  368. 

(2)  Evidence  inndmissihle.  -  Where  an  em- 
ploye sues  for  a  personal  injury,  and  charges 
that  It  was  caused  by  other  employes  "  in 
carelessly  and  negligently  running  and  push- 
ing a  certain  hand-car  upon  the  railroad 
track  of  the  defendant."  evidence  is  inad- 
missible for  plainlitl  to  prove  that  the  in- 
jury was  caused  by  reason  of  a  certain 
defective  instrument,  called  a  "  jigger."  • 
Thomas  v.  (Jfor^ia  A'.  &*  It,  Co.,  40  Oil.  231. 
—  Kkvikwki)  in  Woodward  v.  Oregon  U.  & 
N.  Co.,  18  Orcg.  289. 

An  allegation  that  a  company  was  negli- 
gent in  not  having  a  key  placed  in  the  bolt 
which  fastened  the  tender  to  the  engine,  in 
consequence  of  which  the  bolt  came  out, 
the  engine  and  tender  separated,  and  the 
fireman  was  thrown  between  them  and  in- 
jured, is  \v.A  sup|)ortcd  by  proof  that  the 
bolt  was  not  long  enough  to  go  through  so 
as  to  be  keyed  and  thereby  prevented  from 
coming  out,  and  that  the  train  was  stopped 
and  the  engineer  and  fireman  attempted  to 
fasten  the  bolt,  but  it  was  so  short  that  this 
could  not  be  done.  Port  Noyal  &*  A.  A'.  Co. 
v.  Tompkins,  83  Ga.  759,  10  S.  h.  Rep.  356. 
— Ckiticiskii  in  Central  R.  Co.  v.  Hub- 
bard. 86  Ga.  623. 

In  case  to  recover  for  a  personal  injury 
alleged  to  have  been  produced  by  a  defeci- 
ive  wheel,  defective  ties,  and  the  unskilful- 
ness  of  the  company's  servants,  it  is  error 
to  permit  plaintifT  to  introduce  evidence 
that  the  accident  was  caused  by  the  high 
rate  of  speed  o(  the  train.  Toledo,  W.  &* 
W.  R.  Co.  V.  />\r^rs,Ss  ///.  80.— Rkvii'.wed 
IN  Chicago.  H.  &  y.  U.  Co.  7>.  Wilcox,  12 
111.  App.  42. 

in  a  suit  lor  damages  on  account  of  a  per- 
Koiial  injury  alleged  to  have  been  caused  by 
defendant  carelessly  running  its  train  against 
a  horse,  it  is  not  competent  lor  plaintill  to 
prove  that  the  track  was  not  pioperly 
fenced,  or  that  the  cars  were  not  provided 
Willi  steam  brakes,  ur  any  oilier  negligence 
than  that  averred,  I'oledit,  11'.  ilj«»  W.  R. 
Co.  V.  J'oss,  88  ///.  551,  21  .'Im,  Ry.  Rep.  368. 
— t)iSTiNGt;iSHK.u  in  Kansas  I'ac,  k.  Co.  v. 


Richardson,  6  Am.  4  Eng.  R.  Cas.  96,  25 
Kan.  391. 

Where  the  declaration  alleges  that  plain* 
tilf  was  injured  by  a  car  being  carelessly 
driven  over  him,  it  is  not  sujiported  by  evi- 
dence that  the  injury  was  caused  by  a 
car  not  carelessly  driven  while  plaintifT  was 
attempting  ti  escape  from  another  car 
which  was  carelessly  driven.  Ilanlon  v. 
South  Roston  Horse  R.  Co.,  2  .////.  »S-  Etif. 
R,  Cas.  18,  129  Miiss.  310. 

In  an  action  to  recover  for  personal  injii« 
ries  a  general  allegation  is  not  sufficient  to 
authorize  a  recovery  for  "  loss  of  time,"aiifl 
there  can  be  no  recovery  without  proo'  of 
the  value  of  such  lime,  .V/,»w^'//Ar  v.  .lA/- 
ropolitiiH  SI.  R,  Co..  58  ,/w.  .5-  A'//^'.  R.  Cis. 
604,  1 16  ,!/«.  269,  23  .v.   I!'.  Rip.  760. 

Where  the  allegation  is  thai  defendant 
"by  its  servants  so  carelessly  and  impro|i- 
eriy  drove  and  managed  its  locomotive  cn> 
gine  and  train  that  by  and  through  the 
negligence  and  imprope- conduct  of  defend- 
ant by  its  servants  in  that  behalf  said  loco- 
motive engine  and  train  "  ran  over  and 
injured  plaintiff's  minor  son,  evidence  that 
the  injury  occurred  in  consequence  ol  the 
defective  construction  of  defendant's  station 
platform,  which  was  built  so  near  the  track 
that  the  coaches  projected  over  it  a  foot,  is 
inadmissible.  Murray  v.  Si/i'fr  City,  D.&* 
P.  R.  Co.,  26  Am.  &•  Enjr.  R.  Cas.  154,  3  A'. 
Mtx.  337,  9  /'(!<■.  Rep.  369, 

Under  a  complaint  which  charges  the 
injury  complained  of  to  have  been  caused 
by  the  negligence  of  a  company  in  permit- 
ting a  bridge  on  its  road  to  remain  out  of 
repair,  and  failing  to  keep  proper  watch  and 
oversight  of  the  same,  plaintifT  will  not  be 
allowed  to  show  that  tlic  bridge  was  con- 
structed originally  in  an  improper  and  neg- 
ligent manner.  Knahtla  v.  Ori^oH  S.  /,.  &* 
U.  N.  R.  Co.,  21  Oref;.  136,  27  Pai .  Rep.  91. 

111.  Place  ot  iujiiry.  — Where  a  dec- 
laration alleges  that  the  injury  complained 
o(  was  done  in  the  county  of  Talbot,  and 
the  proof  shows  that  it  occurred  between 
two  points  both  located  on  the  line  of  the 
railroad  in  that  county,  this  is  sufficient 
prool  ol  the  venue.  Central  R.  &*  li.  Co. 
V.  Gamble,  77  Ga.  584.  3  S.  E.  Rep.  287. 

In  an  action  (or  injuries  received  while 
crossing  a  railroad  track  the  petition  alleged 
that  the  place  where  the  accident  occurred 
was  a  "  piiljlic  crossing  or  footway  for  foot- 
men." Held,  iliat  such  allegations  would 
not  remind  plaintiti  to  proof  thai  the  placo. 


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1030 


PLEADING,  112-114. 


Kyt 


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we;,,  speed, 
■  y  b^iiig  Struck 
the  aeclaration 


was  a  public  highway,  and  evidence  that  it 
was  used  by  footmen  was  properly  admitted. 
Clampit  V.  Chicago,  St.  P.  &*  K.  C.  R.  Co., 

49  Am.  &•  Eng.  R.  Cas.  468,  84  /oTt/a  71, 

50  N.  IV.  Rep.  673. 

No  proof  of  negligence  can  be  received 
beyond  what  is  alleged.  So  where  a  dec- 
laration alleges  that  an  injury  was  received 
at  a  public  road-crossing,  evidence  is  not 
admissible  to  show  that  it  was  at  a  place 
where  the  public  had  'C^e  a  short  cut 
across  the  track,  buc  iiad  no  rights. 
Schindler  v.  Milwaukee,  L.  S.  &*  W,  R.  Co., 
42  AiilGt'  Eng.  R.  Cas.  192,  7  Mich.  136,43 
N.   IV.  Rep.  911. 

112.  Proof  of  orrtir 
etc. — In  a  suit  for  injuries 
by  a  passing  train,  where 
contains  no  averment  that  there  was  a  city 
ordinance  regulating  the  rate  of  speed  of 
trains  at  the  place,  it  is  improper  to  admit 
evidence  as  to  the  rate  of  speed  being 
greater  than  that  prescribed  by  ordinance. 
Illinois  C.  R.  Co.  v.  God/rej',71  III.  500.— 
Distinguished  in  Solen  v.  Virginia  &  T. 
R.  Co.,  13  Nev.  106. 

Where  the  negligence  charged  is  in  the 
manner  of  running  a  car  on  a  street,  evi- 
dence of  an  ordinance  fixing  a  lower  rate  of 
speed  is  not  admissible  unless  the  ordinance 
be  specially  pleaded  ;  and  an  allegation  that 
the  car  was  run  contrary  to  the  provisions 
of  the  ordinance  is  not  a  sufficient  allega- 
tion to  admit  such  evidence.  Chicago  IV. 
D.  R.  Co.  V.  Klauber,  9  ///.  App.  613. 

When  the  petition  charges  that  defendant 
is  running  trains  through  certain  streets  of 
a  city  without  warrant  of  law  or  sanction  of 
authority,  defendant,  under  a  plea  of  gen- 
eral denial,  will  be  allowed  to  introduce  in 
evidence  private  acts  of  the  legislature  and 
city  ordinances  purporting  to  authorize  the 
acts  complained  of.  As  such  acts  are  in- 
troduced for  the  purpose  of  rebutting  the 
assertion  of  illegality,  they  need  not  be 
specially  pleaded.  IVerges  v.  St.  Louis,  C. 
&^N.  O.  R.  Co.,  35  La.  Ann.  641.— Quoting 
Story  V.  New  York  El.  R.  Co.,  90  N.  Y.  122. 

The  fact  that  the  rate  of  speed  was  pro- 
hibited by  an  ordinance  of  the  city  is  com- 
petent evidence  of  negligence,  although  the 
existence  of  the  ordinance  has  not  been 
pleaded.  Faber  v.  St.  Paul,  M.  &>  M.  R. 
Co..  8  Am.  &*  Eng.  R.  Cas.  277,  29  Minn.  465. 

In  a  suit  (or  personal  injuries  by  reason  of 
the  negligence  of  defendant  in  not  signaling 
by  bell  or  whistle  the  approach  of  the  cars, 


and  by  running  too  fast,  the  proof  was  that 
the  negligent  act  was  in  the  failure  to  have 
the  place  properly  lighted.  Held,  that  the 
testimony  should  have  been  confined  to  the 
allegations.  Missouri  Pac.  R.  Co.  v.  Hen- 
nessey, 42  Am.  &•  Eng.  R.  Cas.  225,  75  Tex. 
155,  12  S.  W.  Rep.  60Z. 

113.  Proof  of  medical  expenses, 
nursing,  etc.— Claim  for  "  medical  at- 
tendance "  covers  expenditures  for  medicine 
used  by  the  physician  in  giving  such  medi- 
cal attendance.  Knapp  v.  Sioux  City  Sr*  P. 
R.  Co.,  71  Iowa  41,  32  N.  W.  Rep.  18.— Dis- 
tinguishing Gardner  v.  Burlington,  C.  R. 
&  N.  R.  Co.,  68  tewa  588 ;  Stafford  v.  Oska- 
loosa,  57  Iowa  748 ;  Reed  v.  Chicago,  R.  I. 
&  P.  R.  Co.,  57  Iowa  23. 

Where  a  passenger  sues  for  a  personal 
injury  and  only  sets  out  the  payment  of 
$500  to  a  physician,  without  stating  any 
other  expenses  caused  by  the  injury,  it  is 
error  to  allow  him  to  state  that  his  whole 
expense  was  $700.  Galveston,  H.  <S>»  S.  A. 
R.  Co.  V.  Wesch,  {Tex.  Civ.  App.)  21  S.  W. 
Rep.  62. 

Where  the  complaint  contains  an  allega- 
tion that  plaintiff  has  been  compelled  to 
pay  a  certain  sum  for  medical  treatment 
and  nursing,  evidence  thereof  is  admissible 
without  being  pleaded  as  a  distinct  cause  of 
action.  Northern  Pac.  R.  Co.  v.  Hess,  48 
Am.  &^  Eng.  R.  Cas.  91,  2  Wash.  383,  26 
Pac.  Rep.  866. 

114.  Evidence  of  permanency  of 
iigiiry. — Where  the  action  is  for  personal 
injuries,  an  allegation  that  the  injuries  are 
permanent  is  not  necessary  to  authorize  the 
admission  of  evidence  as  to  their  perma- 
nency. Rosevelt  v.  Manhattan  R.  Co.,  27  J, 
&-  S.  197,  37  N.  V.  S.  A'.  894,  13  A^.  F. 
Supp.  598  ;  affirmed  in  133  A'.  Y.  537,  mem., 
30  N.  E.  Rep.  1 148,  44  N.  V.  S.  R.  929,  mem. 

Allegations  of  injury  and  damage  "  that 
by  reason  of  the  carelessness  of  the  defend- 
ant, its  agents,  servants  and  employes,  this 
plaintiff  sustained  serious  damage  both  to 
her  person  and  to  her  property,  and  was 
obliged  to  and  actually  did  incur  liability 
for  surgical  and  other  treatment  and  attend- 
ance in  seeking  to  restore  herself  of  her 
injury,  to  her  damage  five  thousand  dollars," 
are  sufficient  to  let  in  expert  testimony  as 
to  the  probable  permanency  of  the  injury 
sustained.  Lynch  v.  Third  Ave.  R.  Co.,  27 
/.  &*  5.  71.  13  A^.  Y.  Supp.  236,  36  N.  Y.  S. 
y?.  431 ;  affirmed  in  128  A^.  Y.  681,  mem.,  29 
A'.  E.  Rep.  149. 


^/ 


o 


PLEADING,  116,116. 


1031 


'    115.   Accidents  at   crossings.— (i) 

Evidence  admissible. — In  an  action  for  a 
personal  injury  at  a  street  crossing,  the 
declaration  contained  five  counts,  the  fourth 
of  which  charged  that  the  speed  A  the 
train  was  in  excess  of  that  fixed  by  an  ordi- 
nance of  the  city.  A  demurrer  was  sus- 
tained to  each  count,  and  under  leave  to 
amend  only  the  third  and  fifth  counts  were 
amended.  Afterwards  defendant  filed  an- 
other demurrer,  purporting  to  be  to  "  the 
amended  declaration,  and  to  each  and  every 
count  thereof."  wiiich  was  overruled,  and 
then  defendant  filed  the  general  issue,  not 
limited  to  any  particular  counts,  but  going 
to  the  whole  declaration,  upon  which  issue 
was  taken.  Held,  that  the  ordinance  of  the 
city  was  properly  admitted  in  evidence,  and 
that  an  instruction  based  upon  the  fourth 
count  was  properly  given.  Chicago  &*  I. 
R.  Co.  V.  Lane,  130  ///.  116,  22  A'^.  E.  Rep. 
513  ;  affirming  30  ///.  App.  437. 

In  an  action  for  personal  injuries,  it  was 
averred  that  the  injuries  were  caused  by 
the  neglect  of  the  company  in  crossing  a 
public  street  with  a  locomotive  and  train  of 
cars  at  a  very  swift,  rapid,  dangerous,  and 
reckless  rale  of  speed,  and  without  giving 
any  warning  by  sounding  a  whistle  or  ring- 
ing a  bell,  and  that  the  view  was  obstructed 
by  cars  and  by  lumber  piled  in  close  prox- 
imity to  the  road.  Held,  not  error  for  the 
trial  court  to  permit  plaintiflf  to  prove  that 
the  company  had  no  flagman  at  the  cross- 
ing as  one  of  the  circumstances  existing  at 
the  time  and  place  of  the  accident.  Kansas 
Pac.  R.  Co.  V.  Richardson,  6  Am.  &*  Eng.  R. 
Cas.  96,  25  Kan.  391. 

A  declaration  alleged  that  the  deceased 
was  thrown  from  his  loaded  wagon  through 
defects  in  a  crossing,  and  from  the  fright  of 
his  team  at  cross-ties  and  a  hand-car  at  the 
side  of  the  railroad.  The  evidence  failed 
to  show  that  the  crossing  was  out  of  repair, 
but  did  show  that  the  deceased  fell  from  a 
loaded  wagon  some  75  to  1 50  yards  from 
the  crossing  while  his  horses  were  yet  in  a 
gallop.  Held,  that  there  was  no  material 
variance  between  the  allegation  and  the 
proof.  The  evidence  only  failed  as  to  the 
allegation  regarding  the  condition  of  the 
crossing.  Texas  &•  P.  R.  Co.  v.  Hill,  71 
Tex,  451,  9  5.  JV.  Rep.  351.— FOLLOWING 
Missouri  Pac.  R.  Co.  v.  Scott,  Tyler  Term 
1886. 

It  is  competent  to  show  that  a  flagman 
on   duty  was   drunk   without  alleging  the 


fact,  unless  the  drunkenness  be  relied  upon 
as  evidencing  negligence  of  the  employer 
in  selecting  its  employes,  in  which  case  liie 
matter  should  be  pleaded.  International 
6-  G.  N.  R.  Co.  v.  Dyer,  76  Tex.  156,  13  S. 
W.  Rep.  377. 

(2)  Evidence  inadmissible. — A  declaration 
which  alleges  that  the  train  was  proceeding 
in  its  ordinary  course  when  plaintiff  was 
injured  is  not  supported  by  evidence  that 
the  injury  was  caused  by  backing  on  a  side 
track  cars  shoved  by  an  engine  to  which 
they  were  not  attached.  Schindler  v.  Mil- 
waukee, L.  S.  <S-  IV.  R.  Co.,  42  Am.  &*  Eng. 
R.  Cas.  192,  77  Mich.  136,  43  A'.  IV.  Rep. 
911;  further  appeal  87  Mich.  400,  49  N.  W. 
Rep.  670. 

Where  the  petition  charges  that  plaintiff, 
who  was  attempting  to  make  a  crossing, 
was  caught  between  two  cars  standing  on 
defendant's  side  track  by  reason  of  its  care- 
lessness and  negligence  in  driving  and 
forcing  its  cars  together,  a  recovery  cannot 
be  had  for  r  egligence  in  leaving  cars  stand- 
ing on  the  track  without  securing  them. 
Gurley  v.  Missouri  Pac.  R.  Co.,  93  Mo.  445, 
12  West.  Rep.  330.  6  5.  W.  Rep.  218.— Rec- 
onciled IN  Dickson  v.  Missouri  Pac.  R. 
Co.,  104  Mo.  491. 

The  general  reputation  of  a  flagman  at  a 
crossing  for  carelessness  is  inadmissible  in 
an  action  against  a  railroad  company  where 
it  is  alleged  that  the  accident  was  caused 
by  a  single  act  of  carelessness  of  the  flag- 
man. Baltimore  &•  O.  R.  Co.  v.  Colvin,  32 
A'H.  &*  Eng.  R.  Cas.  160,  118  Pa.  St.  230,  10 
Ct  't.  Rep.  583,  12  At  I.  Rep.  337,  20  IV .  N. 

C.  53'- 
110.  lujiiries  to  passengers.— (1) 

Evidence  admissible. —  Under  a  complaint 
that  the  conductor  wrongfully  compelled 
plaintifl  to  leave  the  train,  plaintiff  may 
prove  the  conduct  of  the  flagman  in  com- 
pelling him  to  leave  the  car,  when  the  flag- 
man himself  testifies  that  he  was  author- 
ized by  the  conductor  to  put  plaintiff  off, 
it  being  also  matter  of  common  knowledge 
that  it  is  one  of  the  ordinary  duties  of 
flagmen  and  brakemeii  to  assist  in  carrying 
out  the  orders  of  the  conductor.  Alabama 
G.  S.  R.  Co.  V.  Tapia,  94  Ala.  226,  10  So. 
Rep.  236. 

Evidence  of  what  a  flagman  said  and  did 
at  the  time  and  just  before  a  person  about 
to  take  passage  on  a  train  was  struck  by 
another  train  passing  on  another  track  at  a 
rapid  speed   is  pertinent,  in  an  action  to 


'M'^'i 


1033 


PLEADING,  117. 


■>     1 


M  ril 


recover  for  the  injury,  under  an  allegation 
that  the  company  failed  to  keep  a  flagman 
at  the  spot  to  signal  and  warn  of  the  ap- 
proach of  impending  danger.  Such  allega- 
tion means  more  than  that  tliere  was  no 
flagman  employed  there.  J'ennsylvanta  Co. 
V.  Rudel,  6  Am,  &*  Enj^.  A'.  Cas.  30,  100  ///. 
603. 

Where  a  complaint  alleges  that  plaintiff 
stepped  in  a  hole  in  a  station  placform, 
whereby  his  foot  and  ankle  were  sprained 
and  permanently  injured,  causing  great 
pain,  evidence  is  admissible  to  show  the 
full  nature  and  consequences  of  the  injury. 
Ohio  &*  M.  K.  Co.  V.  Hec/it,  34  Am.  &^  Eng. 
A'.  Cas.  447,  115  Ind.  443,  15  West.  K  p. 
122,  17  N.  E.  Rep.  297.— Distinguishing 
Brown  v.  Byroads,  47  Ind.  435  ;  Teagardcn 
V.  Hetfield,  11  Ind.  522. 

Where  a  husband  sues  to  recover  for  per- 
sonal injuries  to  his  wife,  who  was  a  passen- 
ger, and  avers  in  his  complaint  that  she 
received  heavy  and  serious  blows,  that  her 
lower  limbs  were  bruised  and  injured,  and 
her  nervous  system  permanently  impaired, 
and  that  she  suffered  great  mental  and 
physical  pain,  evidence  of  a  threatened 
miscarriage  is  admissible.  Missouri  Pac. 
A'.  Co.  V.  Mitchell,  72  Tex.  171,  10  S.  IV. 
Kep.  411. 

A  charge  that  the  "  depot "  was  not  sufii- 
ciently  lighted  at  night  when  plaintiff  got 
off  the  train  to  enable  him  to  do  so  with 
safety  is  sufficiently  broad  to  admit  proof 
that  a  passage  between  cars  where  plaintiff 
had  to  go  was  not  sufficiently  liglited.  In 
such  case  the  term  "  depot  "  is  held  to  in- 
clude the  platform  around  it  and  the 
grounds  and  approaches  thereto.  Galves- 
ton, H.  (S-*  S.  A.  A'.  Co.  V.  Thornsberry, 
(Tex.)  17  .S'.    W.  Rep.  521. 

(2)  Evidence  inadmissible. — A  declaration 
alleged  tliat  plaintiff  became  and  was  a 
passenger,  to  be  carrier,  from  A.  to  B.,  two 
stations  on  the  road.  There  was  no  evi- 
dence that  plaintiff  became  a  passenger  at 
A.  for  B.,  but  the  court  allowed  plaintiff  to 
prove  that  he  took  passage  at  M.  to  go  to  O., 
the  stations  A.  and  B.  being  intermediate 
stations  between  M.  and  O.  Defendant  made 
objection  to  the  evidence  on  the  ground  of 
a  variance,  which  the  court  overruled.  Held, 
that  the  court  erred  in  admitting  the  evi- 
dence. Wabash  Western  R.  Co.  v.  Fried- 
man, 146  ///.  583,  30  .^V.  E.  Rep.  353,  34  N. 
E.  Rep   int. 

A  sleeping  p:issenn;er  was  awakened  on 


approaching  his  station,  but,  seeming  in- 
toxicated, the  conductor  deemed  it  best 
not  to  put  him  off,  and  carried  him  to  an- 
other station.  The  following  day  he  was 
ejected  from  a  train  on  returning  to  his  sta- 
tion for  refusal  to  pay  fare.  In  suing  the 
conpany  he  made  no  claim  for  damages  for 
being  carried  beyond  his  destination.  Held, 
error  to  instruct  the  jury  that  the  company 
was  liable  if  it  negligently  carried  him  be- 
yond his  station  and  did  not  give  him 
timely  warning  of  the  train's  arrival.  Louis- 
ville &*  N.  R.  Co.  V.  Lewis,  {Ky.)  21  S.  W. 
Rep.  341. 

Where  the  petition  alleges  a  speciflc  act 
of  negligence,  there  can  be  no  recovery  for 
any  otiier  act.  Thus  where  the  specific 
negligence  alleged  is  the  failure  of  a  com- 
pany to  stop  its  train  at  plaintiff's  station 
long  enough  for  him  to  alight,  he  cannot 
recover  upon  proof  that  the  injuries  for 
which  he  sued  were  sustained  by  reason  of 
the  company's  failure  to  keep  the  platform 
lighted.  (Norton,  J.,  dissenting.)  Price  v. 
St.  Louis,  K.  C.  &*  N.  R.  Co.,  3  Am.  Sr* 
Eng.  R.  Cas.  365,  72  Mo.  414.— Following 
Wahihier  v.  Hiinnibal  &  St.  J.  R.  Co.,  71 
Mo.  514.  Reviewing  Mayor  w.  Humphries, 
I  C.  &  P.  251. — Distinguished  in  Werner 
V.  Citizens'  R.  Co..  81  Mo.  368  ;  Otto  v.  St. 
Louis,  I.  M.  &  S.  K.  Co.,  12  Mo.  App.  168. 
Followed  in  Ellis  v.  Wabash,  St.  L.  &  P. 
R.  Co.,  17  Mo.  App.  126.  Reconciled  in 
Missouri  Pac.  R.  Co.,  8  Am.  &  Eng, 
106,  74  Mo.  298. — Lakin  v.  Oregon 
Co.,  34  Am.  &•  Eng.  R.  Cas.  500,  15 
Oreg^  220,  15  Pac.  Rep.  641.  Texas  Pac, 
R.  Co.  V.  Buckelew,  3  Tex.  Civ.  App.  272, 
22  S.  W.  Rep.  994.  Gulf,  C.  »S-  S.  F.  R. 
Co.  v.  Adams,  3  Tex.  App.  (Civ.  Cas.)  493. 

117.  Injuries  to  employes.— (i)  Ev- 
idence admissible. — When  the  complaint  al- 
leges that  plaintiff,  while  at  work  under  a 
car,  was  injured  by  another  car  being  negli- 
gently run  down  upon  it  by  some  person  in 
defendant's  service  who  had  the  control 
and  superintendence  of  said  moving  car,  a 
recovery  may  be  had  on  evidence  showing 
that  the  accident  was  caused  by  the  negli- 
gence of  the  engineer,  who,  in  detaching 
and  switching  off  the  car,  propelled  it  with 
too  great  force.  Louisville  &^  N.  R.  Co.  v. 
Davis,  91  Ala.  487,  8  So.  Rep.  552. 

Under  a  count  which  avers  that  the  en- 
gine used  in  the  yard  at  the  time  plaintiflf 
was  injured,  while  engaged  in  uncoupling 
cars,  was  not   provided  with  a  platform  or 


Hall  v. 
R.  Cas. 
Pac.  R. 


i   '■ 


■. 


I 


PLEADING,  117. 


1033 


■'.::    ■   n 


ing  in- 
it  best 
to  an- 
he  was 
his  sta- 
ling the 
ages  for 
Held, 
ompany 
him  be- 
ve    him 
LouiS' 
S.   W. 


other  device  on  which  brakemen  could 
stand  while  engaged  in  the  service,  it  is 
competent  to  show  that  the  switch  engine 
ordinarily  used  in  the  yard  was  provided 
with  such  platform,  but  was  temporarily  at 
the  shop  for  repairs;  that  a  road  engine, 
with  pilot  attached,  and  a  flat  car  in  front 
of  It,  which  obviated  the  necessity  of  stand- 
ing on  the  grcund  while  coupling  or  un- 
coupling, was  at  first  substituted,  and  that 
this  was  withdrawn  a  day  or  two  before  the 
accident.  Mobile  &•  O.  li.  Co.  v.  George,  94 
Ala.  199,  10  So.  Rep.  145. 

Under  a  count  that  the  injury  was  caused 
by  the  neghgence  of  the  engineer  in  charge 
of  the  engine  and  cars,  plaintiff  may  prove 
that  the  fireman  was  handling  the  engine 
at  the  time.  Mobile  &*  O.  R.  Co.  v.  George, 
94  Ala.  199,  10  So.  Rep.  145. 

Evidence  that  no  signal  was  given  of  a 
delayed  freight  train,  or  that  none  was  seen 
by  a  fireman  injured  by  his  train  rushing 
into  the  rear  end  thereof  while  rounding  a 
sharp  curve,  is  admis'^  jle  under  an  allega- 
tion of  negligence  in  ordering  the  fireman's 
train  to  proceed  without  notice  of  any  dan- 
ger ahead,  or  any  effort  being  made  to  re- 
move the  same  or  to  give  notice  thereof  aiicr 
the  fireman's  train  had  started.  Chatta- 
nooga, R.  &*  C.  R.  Co.  V.  Owen,  90  Ga.  265, 
iSS.  E.  Rep.  853. 

In  an  action  by  an  employ6  for  personal 
injuries,  the  negligence  charged  was  the 
moving  of  a  car,  under  which  plaintiff  was 
working,  without  notice  or  warning.  The 
proof  showed  that  the  negligence  in  not 
giving  notice  was  attributable  to  the  fore- 
man under  whose  control  plaintiff  was  work- 
ing, and  not  to  those  engaged  in  moving 
the  car.  Held,  not  a  case  of  a  failure  of 
proof  under  Ohio  Code,  §  133,  but,  at  most, 
of  variance  under  sections  131,  132.  LaAe 
Shore  <S-  M.  S.  R.  Co.  v.  Lavalley,  l  Am.  &> 
Eng.  R.  Cas.  549,  36  Ohio  St.  22 1 . 

Where  carelessness  and  negligence  in 
causing  a  locomotive  to  run  against  the 
place  at  which  plaintiff  was  at  work  arc  di- 
rectly imputed  to  defendant,  such  allegation 
is  broad  enough  to  admit  evidence  of  all 
kinds  and  grades  of  negligence  on  the  part 
of  defendant  which  resulted  from  causing 
and  permitting  the  locomotive  to  run  down 
on  the  place  where  plaintiff  was  at  work, 
thereby  rendering  it  unsafe  and  causing  the 
injury.  IVild  v.  Oregon  S.  L.  <S-  U.  N.  R. 
Co.,2t  Oreg.  159,  27  Pac.  Rep.  954. 

Where  a  locomotive  engineer  sues  for  an 


injury  caused  by  an  explosion  of  gas  from  a 
fire  box,  and  alleges  that  it  resulted  from 
defendant's  failure  to  supply  liini  with  prop- 
er appliances,  evidence  is  admissible  that 
the  coal  furnished  was  inferior  and  clogged 
the  spark  arrester  so  as  to  cause  an  accu- 
mulation of  gas  in  the  fire  box.  Coal  might 
be  included  under  the  term  "appliances" 
as  used  in  the  complaint.  Davis  v.  New 
York,  L.  E.  6-  W.  R.  Co.,  14  A'.  Y.  S.  R.  i  ; 
affirmed  in  no  N.  Y.  646,  17  N.  E.  Rep. 
733.  17  ■'^'•  Y.  S.  R.  172,  2  Silv.  App.  94. 

Evidence  of  defects  of  a"  engine  is  admis- 
sible under  a  complaint  ich  alleged  gen- 
erally that  the  collision  /Ctween  the  train 
on  which  plaintiff  was  working  and  another 
train  was  caused  by  defendant's  gross  negli- 
gence, and  though  the  allegations  are  not 
broad  enough  to  cover  it,  its  admission  is 
not  ground  of  exception  under  Wash.  T. 
Code,  §  105.  Northern  Pac.  R.  Co.  v. 
O'Brien,  i  Wash.  599,  21  Puc.  Rep.  32. — 
Quoted  in  Cogswell  v.  West  St.  &  N.  E. 
Elec.  R.  Co.,  5  Wash.  46. 

The  complaint  shows  that  an  engine  on 
which  plaintiff  was  fireman  was  derailed  and 
overturned,  and  that  large  quantities  of 
steam  and  water  escaped  therefrom  and  fell 
upon  him,  and  he  was  "severely  burned, 
maimed,  and  permanently  injured,  and  has 
Buffered  and  continues  to  suffer  great  pain 
in  body  and  mind,  and  that  by  reascjn  there- 
of he  became,  and  for  a  long  time  remained, 
ill,  and  is  still  suffering  from  said  injuries." 
There  was  no  motion  to  make  the  complaint 
more  definite  and  certain.  Held,  that  there 
was  no  error  in  admitting  evidence  for 
plaintiff  that  the  covering  of  his  spinal  cord 
was  injured  by  the  accident,  and  that-urinal 
difficulties  resulted  from  his  injuries  ;  nor  in 
admitting  evidence  that  an  inguinal  hernia 
made  its  appearance  about  nine  months  af- 
ter the  injury,  and  was  the  result  thereof. 
Delie  v.  Chicago  <&*  N.  W.  R.  Co.,  5  Am.  &* 
Eng.  R.  Cas.  464,  51  Wis.  400,  8  N.  W. 
Rep.  265. 

The  fact  that  plaintiff  failed  to  make  ad- 
equate proof  of  the  lost  averment,  so  that  the 
court  withdrew  that  subject  from  the  jury, 
had  no  bearing  on  the  question  of  the  ad- 
missibility of  the  evidence  in  the  first  in- 
stance. Delie  v.  Chicago  &^  A'.  W.  R.  Co., 
5  Am.  6^  E»g.  R.  Cas.  464,  51  IFis.  400,  8 
A'.    W.  Rep.  265. 

(2)  Evidence  inadmissible. — Under  a  count 
which  alleges  a  common  law  liability  on  the 
ground  that   plaintiff   was  on   defendant's 


1034 


PLEADING,  118. 


•M^i 


^ri 


railroad  track  by  invitation,  and  was  injured 
by  tlie  negligence  of  defendant's  servants,  a 
recovery  cannot  be  had  on  proof  of  a  stat- 
utory liability  of  employer  to  employe. 
Mobile  &*  0.  R.  Co.  v.  Geor<^e,  94  Ala.  199, 
10  So.  Kep.  145. 

Where  a  brakeman  sues  to  recover  for  a 
personal  injury  and  charges  no  negligence 
except  in  the  movement  of  the  train,  it  is 
error  to  admit  evidence  as  to  defects  in  rails 
and  coupling-pins,  or  ".s  to  the  extent  of  the 
injuries,  except  as  mere  incidents  to  the  ac- 
cident. Greer  v.  Louisville  &*  N.  K.  Co., 
{h'y.)  21  S.  W.  Hep.  649. 

Where  a  conductor  sues  for  an  injury  and 
alleges  that  it  was  due  to  a  failure  of  the 
company  to  employ  a  suitable  engineer, 
proof  is  not  admissible  that  a  fireman  had 
charge  of  the  locomotive  in  the  absence  of 
the  engineer.  To  make  such  evidence  ad- 
missible the  complaint  should  allege  that 
the  company-authorized  or  allowed  the  fire- 
man so  to  act.  Harper  v.  Indianapolis  &• 
SI.  L.  K.  Co.,  44  Mo.  488. 

In  an  action  for  an  injury  to  a  servant  re- 
sulting from  the  negligence  of  the  master  in 
furnishing  him  with  defective  machinery, 
the  servant  cannot  recover  on  the  ground 
that  the  master  failed  to  keep  his  machinery 
in  repair.  Current  v.  Missouri  Pac.  R.  Co., 
86  Mo.  62.— Followed  in  Warmington  v. 
Atchison,  T.  &  S.  F.  R.  Co.,  46  Mo.  App. 

159- 

Where  an  employe  is  injured  and  sues  the 
company  for  damage  and  sets  out  a  contract 
by  which,  among  other  things,  the  company 
agreed  to  pay  $1.75  per  day,  but  alleges  no 
breach  of  this  part  of  the  contract,  but 
charges  a  breach  of  other  conditions,  it  is 
erpor  to  admit  evidence  tending  to  show  a 
failure  to  pay  the  S1.75  per  day.  Texas  Pac. 
R.  Co.  v.  Grimes,  (,Tex.  Civ.  App.)  21  S.  IV. 
Rep.  402. 

2.  Burden  of  Proof. 

118.  In  genera!.— Where  the  action  is 
based  upon  negligence,  and  the  company 
interposes  the  double  defense  of  "  not 
guilty "  and  contributory  negligence,  the 
burden  of  proof  is  upon  the  plaintiff  as  to 
the  charge  of  negligence,  but  on  the  defend- 
ant as  to  the  chjirge  of  contributory  negli- 
gence. Louisville  <S-  N.  R.  Co.  v.  Hall,  39 
Am.  (S-  Eng.  R.  Cas.  298,  87  Ala.  708,  4  L. 
R.  A.  710,  6  So.  Rep.  277. 

In  a  suit  against  a  railway  for  a  breach  of 
contract  to  make  culverts  and  fences  along 


its  right  of  way,  the  declaration  alleged  two 
considerations ;  a  waiver  by  plaintiff  of  a 
right  of  appeal  from  the  assessment  of  dam- 
ages for  right  of  way,  and  plaintiff's  agree- 
ment to  convey  the  right  of  way  Plaintiff 
testified  that  he  did  not  agree  to  give  a 
deed  and  that  nothing  was  said  about  one, 
and  the  proof  failed  to  show  that  anything 
was  said  about  waiving  any  right  of  appeal, 
and  no  proceedings  were  shown  to  condemn 
the  land  so  as  to  show  there  was  any  right 
of  appeal.  Held,  that  no  recovery  could  be 
had  upon  the  contract  for  the  want  of  proof 
of  a  sufficient  consideration.  Indianapolis, 
B.  &*  W.  R.  Co.  V.  Rhodes  76  ///.  285. 

Where  several  differer  grounds  of  action 
as  acts  of  negligence  ar^.  alleged  in  several 
counts,  plaintiff  is  entitled  to  recover  if  he 
proves,  by  a  preponderance  of  the  evidence, 
cither  ground  of  action.  The  burden  is  not 
on  him  to  prove,  by  a  preponderance  of 
evidence,  as  a  condition  precedent  to  the 
right  of  recovery,  each  and  all  of  the  ma- 
terial acts  of  negligence  in  each  and  all  of 
the  counts.  Chicago,  R.  I.  &•  P.  R.  Co.  v. 
Clough,  134  ///.  586,  25  A^.  E.  Rep.  664,  29  N.  ■ 
E.  Rep.  184;  affirming  33  ///.  App.  129. 

Where  a  release  is  pleaded  in  defense  and 
not  denied,  but  matter  is  pleaded  by  plain- 
tiff in  avoidance  of  the  release,  the  burden^ 
to  establish  the  release  is  removed  from  de- 
fendant, and  the  burden  to  establish  the 
matter  in  avoidance  devolves  upon  plaintiff; 
and  it  is  error  to  charge  the  jury  that  "  as  to 
material  affirmative  allegations  and  defenses 
of  the  answer  the  burden  of  proof  devolves 
upon  defendant";  and  the  error  is  not 
cured  by  another  instruction  which  cor- 
rectly places  the  burden  of  proof.  Hawes 
V.  Burlington,  C.  R.  &*  A'.  R.  Co.,  19  Am.  &■* 
Eng.  R.  Cas.  220,  64  loTva  315,  20  A'^  IV.  Rep, 
717. 

Under  a  general  denial  of  the  complaint, 
which  set  forth  a  parol  agreement  and  part 
acceptance  thereunder,  plaintiff  must  prove 
both  contract  and  acceptance  to  make  out  a 
case.  Russell  v.  Wisconsin,  M.  &*  P.  R. 
Co.,  39  Minn.  145,  39  N.  IV.  Rep.  302. 

Plaintiff  sued  to  enforce  certain  rights 
under  a  lease  which  he  alleged  was  executed 
by  the  officers  of  defendant  corporation 
under  a  resolution  by  the  board  of  direc- 
tors. The  company  answered  admitting 
the  execution  of  the  lease,  but  alleged  that 
there  was  not  a  quorum  at  the  meeting  of 
the  directors  authorizing  the  lease.  Held, 
that  the  burden  of  proof  as  to  the  execution 


I 


i 


i> 


PLEADING,  119-124. 


1035 


;ed  two 
ifT  of  a 
of  dam- 


of  the  lease  was  on  defendant.  Oregon  R. 
Co.  V.  Oregon  K.  &•  JV.  Co.,  28  Fed.  Rep.  505. 

1 10.  Breach  of  contract  by  carrier 
of  goods.— In  a  suit  against  a  company 
where  its  liability  for  the  transportation  of 
specific  articles  is  alleged  in  the  petition  to 
result  from  its  partnership  with  connecting 
lines  over  which  the  articles  were  to  be  car- 
ried, no  evidence  of  partnership  is  required 
to  be  shown  by  plaintiff,  in  the  absence  of 
the  statutory  plea  of  non  est  factum,  deny- 
ing the  partnership.  International  &*  G. 
N.  R.  Co.  V.  Tisdale,  74  Tex.  8.  1 1  5.  W. 
Rep.  900. 

120. by  carrier  of  passengers. 

—Under  a  count  that  plaintiff  was  "put 
off"  by  the  conductor,  or  "compelled  to 
get  off,"  it  is  not  necessary  to  prove  that 
she  was  ejected  by  force.  A  recovery  may 
be  had  on  evidence  showing  that,  having 
been  carried  several  hundred  yards  beyond 
the  station,  the  conductor  refused  to  move 
the  train  back  and  ordered  her  to  get  off, 
and  that  she  then  aiiighted  to  avoid  being 
carried  further.  Alabama  G.  S.  R.  Co.  v.  Sel- 
lers,  93  Ala.  9.  9  So.  Rep.  375. 

Where  the  only  count  of  the  complaint 
alleges  that  defendant  failed  and  refused  to 
stop  the  train  at  plaintiff's  destination, 
whereby  she,  a  passenger,  was  unable  to 
get  off,  and  further  alleges  that  she  was 
carried  past  said  station  and  put  off  with 
her  baggage  against  her  protest  and  objec- 
tion, it  is  a  joinder  of  case  and  trespass,  and 
being  alleged  conjunctively  a  general  denial 
imposes  on  plaintiff  the  burden  of  proving 
both  phases  of  the  case  made  by  the  com- 
plaint. Louisville  &•  N.  R.  Co.  v.  Dancy, 
^T  Ala.  338,  II  So.  Rep.  796.— Following 
Louisville  &  N.  R.  Co.  v.  Johnston,  79  Ala. 

436. 

While  it  may  be  true  that  a  plaintiff  in  an 
action  against  a  railway  company  need  not 
state  the  termini  of  his  contract  for  car- 
riage, and  it  may  be  sufficient  for  him  to 
state  generally  that  he  became  a  passenger 
on  defendant's  road  for  being  carried,  yet  if 
he  goes  into  detail  and  states  the  points 
from  and  to  which  he  took  passage  he  must 
prove  the  express  or  implied  contract  as  al- 
leged. Wabash  Western  R.  Co.  v.  Friedman, 
146  ///.  583,  30  A'.  E.  Rep.  353,  34  A'.  E.  Rep. 
nil.  • 

121.  Personal  injuries,  generally. 
— Where  the  complaint  avers  in  general 
terms  that  plaintiff  was  bruised  and  injured 
internally  and  externally,  specifying  several 


particular  injuries,  defendant  cannot  claim 
a  verdict  because  of  a  failure  to  prove  one 
or  more  of  the  particular  injuries  alleged. 
Alabama  G.  S.  R.  Co.  v.  Hill,  93  Ala.  514, 
9  So.  Rep.  722. 

If  the  complaint,  or  a  count  therein,  al- 
leges that  plaintiff's  injuries  were  caused  by 
a  defect  in  the  engine,  and  that  it  was  so 
out  of  order  that  it  could  not  be  stopped 
promptly,  this  is  a  matter  of  description  and 
must  be  proved  as  alleged.  Mobile  &*  O.  R. 
Co.  V.  George,  94  Ala.  199,  10  So.  Rep.  145. 

An  act  giving  a  remedy  for  an  injury  to  a 
person  by  a  railroad  will  not  be  so  strictly 
construed  as  to  compel  plaintiff  to  prove 
the  exact  date  of  the  injury  set  forth  in  his 
complaint,  especially  when  the  act  itself 
does  not  contemplate  such  exactitude.  Au' 
gusta  &*  S.  R.  Co.  v.  McElmurry,  24  Ga.  75. 

Where  the  action  is  to  recover  damages 
for  injuries  to  the  person,  plaintiff  is  not 
bound  to  prove  every  specific  injury  alleged 
in  the  complaint.  Hammond  v.  North 
Eastern  R,  Co.,  6  So.  Car.  1 30. 

122.  Injuries  at  crossings.— Where 
the  gist  of  the  complaint  is  that  defendant 
without  proper  care  propelled  unguarded 
cars  along  its  track  which  forced  other  de- 
tached cars  onto  a  street  crossing,  thereby 
causing  the  injury  sued  for,  an  allegation 
that  it  was  done  in  making  a  flying  switch  is 
not  essential,  and  it  is  immaterial  that  the 
evidence  does  not  show  that  the  injury  was 
caused  while  making  a  flying  switch.  In- 
ternational (S-  G.  N.  R.  Co.  v.  Dyer,  "^d  Tex, 
156.  13  S.  W.  Rep.  377. 

123.  Injury  to  employe. —  A  brake- 
man  sued  to  recover  for  a  personal  injury, 
and  charged  generally  that  the  injury  re- 
sulted from  the  negligence  of  the  conductor 
in  signaling  the  engineer  to  back,  and  from 
negligence  in  backing  the  train,  and  from 
defects  in  car  couplings.  Held,  that  it  was 
not  necessary  in  order  to  recover  to  show 
negligence  in  all  of  the  rrattors  charged ; 
that  it  was  competent  to  show  1  hat  the  in- 
jury resulted  from  the  negligence  of  the  en- 
gineer or  other  employes  in  backing  the 
train,  or  that  the  injury  resulted  from  de- 
fective couplings,  and  if  the  proaf  showed 
that  the  injury  resulted  from  either  or  both 
of  these  causes  he  was  entitled  to  recover. 
iLouisville  <S-  A^.  R.  Co.  V.  Foley,  (Ky.)  21  S. 

W.  Rep.  866. 

124.  Injury  to  adjacent  property. 
— Where  plaintiff  sues  for  maintaining  a 
track  so  near  his  dwelling  house  as  to  cause 


.•:  1 


1036 


PLEADING,  125-127. 


m 


2« 


a  nuisance,  but  only  counts  upon  his  posses- 
sion of  the  premises,  he  cannot  recover 
where  the  proof  totally  fails  to  show  that  he 
ever  had  possession,  but  tends  strongly  to 
show  a  mere  reversionary  interest.  In  order 
to  recover  plaintiff  must  prove  (i)  his  pos- 
session of  the  house  and  land ;  (2)  the  in- 
jurious act  alleged  to  have  been  done  by 
defendant;  and  (3)  the  damages  resulting 
therefrom.  Chicago  &>  E.  I.  R,  Co,  v,  Loeb, 
8  ///.  App.  627, 

3.   Variance. 

125.  In  general.— The  fact  that  de- 
fendant company  is  named  a  "  railroad  " 
company  in  the  complaint,  and  a"  railway  " 
conipiuiy  in  the  summons  and  judgment,  is 
not  a  material  variance.  St.  Louis,  I.  M. 
&>  S.  R.  Co.  V.  State,  55  Ark.  200,  17  S.  IV. 

Kcp,  feorj. 

If  plaintiff,  though  needlessly,  describe 
the  tort  and  the  means  adopted  in  effecting 
It  with  minuteness  and  particularity,  and 
the  proof  substantially  varies  from  the  state- 
ment, there  will  be  a  fatal  variance.  Lake 
Shore  &>  M.  S.  R.  Co.  v.  Beam,  1 1  ///.  App. 
215.  Chicago,  £.  &*  Q.  R.  Co.  v.  Mor ken- 
stein,  24  ///.  App.  128. 

A  general  allegation  that  the  master  by 
his  servant  made  the  assault  is  overborne 
by  a  statement  of  the  actual  facts  which 
shows  a  mere  volunteer  assault  by  the  ser- 
vant, and  one  outside  the  scope  of  his  em- 
ployment. Hudson  V.  Missouri,  K.  &*  T.  R. 
Co.,  16  Kan.  470. 

VVhere  a  defendant  is  sued  as  the  sole 
owner  of  a  railroad,  and  the  proof  is  that 
he  is  jointly  concerned  with  others  as  a 
stockholder,  the  allegation  of  ownership  is 
material,  and  unless  tlie  bill  is  amended  no 
decree  can  be  entered  against  defendant. 
Beaut  V.  Bowler,  2  Bond  {17.  S.)  13. 

Where  the  evidence  admitted  without 
objection  shows  a  case  different  from  that 
alleged  in  the  complaint,  and  the  questions 
arising  upon  that  state  of  the  case  are  fully 
litigated  on  the  trial,  the  pleadings  may  bfe 
amended  at  any  time  or  the  variance  disre- 
garded. Stetler  v.  Chicago  &>  N.  IV.  R.  Co., 
49  ^'/Ys.  609,  6  A'.  IV.  Rep.  303,  21  Aw.  Ry. 
Rep.  89. 

120.  Plaintiff's  capacity  to  sue.— 
A  petition  against  "The  St.  Louis,  Arkan- 
sas &  Texas  P.?')  way  Company  in  Texas  "  al- 
leged the  transfer  to  plaintiff  of  certain 
claims  for  damages  against  it.  The  proof 
offered  was  of  certain  written  transfers  of 


claims  against  "  The  St.  Louis,  Arkansas  & 
Texas  Railway  Company."  Held,  that  the 
variance  could  not  have  misled,  and  also 
that,  as  the  transfers  were  not  declared  on  in 
the  petition,  the  variance  could  be  supplied 
by  parol  evidence,  St.  Louis,  A.  &'  T  R. 
Co.  V.  Turner,  i  Tex.  Civ.  App.  625,  20  ,S". 
W.  Rep.  1008. 

127.  Actions  against  carriers  of 
goods.— Where  a  declaration  is  founded 
upon  the  common  law  liability  of  a  carrier, 
and  there  is  proof  of  a  special  contract 
whereby  the  carrier  is  not  answerable  for 
certain  risks,  there  is  a  variance.  Austin  v. 
Manchester,  S.  &>  L.  R.  Co.,  16  Q.  B.  600.  15 
Jur.  670,  20  L.  J.  Q.  B.  440. 

In  an  action  for  not  complying  with  a 
contract  to  carry  and  deliver  a  draft,  the 
complaint  alleged  that  it  was  signed  "John 
Q.  Jackson  ";  the  proof  showed  that  it  was 
signed  "John  Q.  Jackson,  Agent."  Held. 
that  the  variance  was  immaterial.  Zeigler 
v.  Wells,  28  Cal.  263. 

The  receipt  given  for  goods  is  the  evi- 
dence of  the  contract  for  their  transporta- 
tion, and  where  plaintiff  has  declared  upon 
a  failure  to  transport  goods  to  a  point  other 
than  that  thus  contracted  for  plaintiff  will 
be  nonsuited.  Rome  R.  Co.  v.  Sullivan,  25 
Ga.  228. 

Where  an  action  is  brought  against  a  com- 
mon carrier  to  recover  damages  for  an  al 
leged  delay  in  the  transportation  and  deliv- 
ery of  live  stock,  and  the  complaint  counts 
upon  a  breach  of  the  common  law  duty  of 
such  carrier,  if  the  evidence  shows  a  spe- 
cial contract  which  was  not  declared  upon, 
the  variance  is  fatal,  and  plaintiff  cannot 
recover.  Lake  Shore  <S^  M.  S.  R.  Co.  v. 
Bennett,  6  Am.  &•  Eng.  R.  Cas.  391,  89  Ind. 
457.  Hall  V.  /Pennsylvania  Co.,  16  Am.  &• 
Eng.  R.  Cas.  165,  90  /nd.  459.— QUOTED  IN 
Indianapolis,  D.  &  W.  R.  Co.  v.  Forsythe, 
4  Ind.  App.  ^26.— Bartlett  v.  Pittsburgh,  C. 
<S-  St.  L.R.  Co.,  18  Am.  &>  Eng.  R.  Cas. 
549,  94  Ind.  281.  Baltimore  6>»  O.  R.  Co. 
V.  Rathbone.  i   W.  Va.  87. 

Where  the  allegation  is  that  plaintiffe 
delivered  to  defendant  a  large  quantity  of 
wool,  to  wit,  7837  pounds,  which  it  promised 
to  transport,  and  the  proof  is  of  a  smaller 
quantity,  there  is  no  variance.  Deming  v. 
Grand  Jrunk  R.  Co.,  4S  JV.  H.  455. 

In  an  action  against  a  carrier  for  failure 
to  comply  with  a  contract  of  shipment  by 
unreasonable  delay,  proof  of  unreasonable 
delay  after  Jan.  6  is   not  a  fatal  variance 


: 


PLEADING,  128-133. 


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from  allegations  alleging  a  contract  on  Dec. 
II  to  commence  the  transportation  at  once, 
and  laiiure  to  do  so  lor  four  weeks  there 
after.     Lawreme   v.   Milwaukee,   L    S.   Sr^ 
W.  R.  Co.,  84  Wis.  427,  54  /V.  \V.  Rep.  797. 

Where  the  declaration  alleges  a  contract 
to  transport  goods  within  a  reasonable  time 
subject  to  certain  limitations  ol  liability, 
and  the  proot  shows  an  additional  condi* 
tion  that  ail  liability  on  defendant's  part 
should  cease  on  delivery  of  the  goods  to  the 
succeeding  carrier,  the  variance  is  fatal. 
Fraser  v.  Grand  Trunk  R.  Co.,  26  U.  C.  Q 
B.  488. 

128.  Actions  against  carriers  of 
live  stocl{.— A  complaint  alleged  that  de- 
fendant undertook  a:  a  common  carrier  tor 
a  valuable  consideration  to  transport  a  mare 
and  colt  for  plaintiff  over  its  road,  and  that 
the  animals  were  injured  through  defend- 
ant's negligence  in  the  transjfortation.  De- 
fendant's contract  was  expressed  in  a  bill  of 
lading  which  exempted  it  from  liability  for 
damage  from  certain  specified  causes,  none 
ol  which  covered  the  negligence  charged. 
Held,  that  there  was  no  variance.  Coupiand 
V.  Housatonic  R.  Co.,  61  Conn.  531,  23  All. 
Rep.  870. 

Where  several  parties  join  in  a  suit 
against  a  railroad  company  for  failing  to 
furnish  cars,  and  transport  livestock  accord- 
ing to  contract,  and  a  complaint  avers  a 
)omt  contract  between  all  of  the  plaintiffs 
and  the  company,  it  is  a  fatal  variance  to 
introduce  two  contracts  between  different 
plaintiffs  agreeing  to  carry  the  stock  to  a 
different  point  from  that  named  in  the  com 
plaint.  Texas  &-  P.  R.  Co.  v.  Hamm,  2  Tex. 
App.  {Civ.  Cai.)436. 

Where  a  party  declares  upon  a  special 
contract,  and  the  contract  proved  is  essen- 
tially variant  from  the  one  declared  on,  he 
cannot  recover,  as  the  allegations  and  proofs 
must  correspond.  So  where  the  action  is 
against  a  carrier,  and  the  declaration  alleges 
a  special  contract  to  carry  safely,  but  the 
evidence  shows  a  contract  which  limits  the 
carrier's  liability  to  injuries  resulting  from 
gross  negligence,  there  can  be  no  recovery. 
Baltimore  6-  O.  R.  Co.  v.  3keels,  3  IV.  Va. 
556. 

120.  Action  against  consolidated 
company.— In  a  suit  against  a  consolida- 
ted company  where  the  tort  sued  for  was 
committed  by  one  of  the  old  corporations, 
the  fact  should  be  so  averred  to  avoid  a 
variance  in  the  proof,  but  on  appeal  such  a 


variance  will  not  be  available.    Indianapolis, 
C  il^  L.  A'  Co.  \,  Jona;,  29  Ind.  465. 

130.  Suits  against  receivers.— Suit 
was  brought  against  a  receiver  on  a  shipping 
contract,  and  subsequently  the  company 
was  made  co-defendant.  It  was  alleged  that 
the  contract  sued  on  was  made  by  the  re- 
ceiver but  the  one  offered  in  evidence  was 
signed  by  the  agent  ol  the  receiver,  but  pur- 
ported to  be  signed  as  the  agent  ol  the 
company.  There  was  no  question  but  that 
the  road  was  in  the  hands  of  the  receiver 
when  the  contract  was  made.  Held,  not 
such  a  variance  as  to  have  taken  the  com- 
pany by  surprise.  Texas  &•  P.  R.  Co.  v. 
Wilson,  (  Tex.  Civ.  App)  21  S.  W.  Rep.  373. 

131.  Actions  relative  to  realty.— 
Under  an  allegation  stating  the  considera- 
tion of  the  promise  sued  upon  to  be  an 
agreement  of  plaintiff's  to  convey  a  right  of 
way  lor  defendant's  road,  proof  of  a  con- 
veyance of  the  fee  of  the  land  as  perform- 
ance of  this  agreement  is  not  objectionable 
as  a  variance ,  proof  of  performance  of  more 
than  the  consideration,  so  long  as  it  includes 
the  agreed  consideration,  is  not  open  to 
complaint  on  the  part  of  defendant.  DetroiL 
H.  &>  I.  R.  Co.  V.  Forbes,  30  Mich.  165, 

Where  the  action  is  trespass  to  try  title; 
and  plaintiff  avers  as  part  of  his  chain  of 
title  a  certain  deed  made  at  a  certain  date 
which  was  lost,  a  variance  of  some  three 
years  as  to  the  date  fixed  in  parol  evidence 
offered  to  establish  the  deed  does  not  ren- 
der it  inadmissible,  where  it  is  immaterial 
which  was  the  correct  date.    Houston,  £,&• 

W.    T.  R.  Co.  v.  Bla^^e,  73  Tex.  24.  12  S. 

W.  Rep.  616. 

132.  Injury  to  realty,  generally.— 
Plaintiff  sued  to  recover  for  damages  caused 
by  an  embankment  throwing  water  on  his 
lands,  and  charged  that  defendant  company 
had  constructed  the  embankment.  The 
evidence  showed  that  it  had  been  con- 
structed by  a  former  company,  and  that  de- 
fendant was  only  liable,  if  at  all,  for  continu- 
ing it.  Held,  that  the  variance  was  imma- 
terial and  properly  disregarded.  Conhocton 
Stone  Road  Co.  v.  Buffalo,  N.  V.  <S-  £.  R. 
Co.,  3  Hun  (N.  Y.)  523.  5  7.  <S-  C  651. 

133.  Obstruction  of  ways  and. 
watercourses. — Where  a  company  is  sued 
for  obstructing  a  watercourse,  a  failure  to 
sho'V  the  existence  of  such  watercourse  by 
the  evidence  is  such  a  variance  as  will  justify 
a  reversal.  Chicago  &*  A.  R.  Co.  v.  Henne- 
beiry.  28  ///.  App.  1 10. 


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PLEADING,  134-136. 


Where  in  a  suit  lor  obstructing  a  private 
way  there  is  a  variance  bctwcei)  the  allega 
gallons  in  the  declaration  descriptive  ol  the 
way  alleged  to  have  been  obstructed,  and 
tlie  evidence  ot  the  plaintifi  as  to  the  way 
actually  used  by  hini,  a  verdict  should  be 
directed  (or  delendant.  Bo/ion  v.  Manatee 
6-  G.  a:  K.  Co.,  95  Muh.  202.  54  A'.  W.  Rep. 
875. 

In  an  action  to  recover  damages  for  the 
obstruction  ot  a  private  way,  the  complaint 
alleged  that  the  way  was  so  entirely  ob- 
structed that  plaintifi  was  utterly  unable  to 
pass.  The  proof  showed  that  the  way  was 
only  partially  obstructed,  leaving  ample 
room  for  egress.  Held,  that  the  variance 
was  fatal,  and  that  a  motion  for  a  nonsuit 
should  have  been  granted.  Ross  v.  Georgia, 
C.  <S-  A^.  R.  Co.,  46  Am.  <S-  Eng.  R.  Cas.  34, 
33  So.  Car.  477,  12  5.  £.  Rep.  101. 

134.  Destruction  of  property.— A 
declaration  alleged  that  plaintiffs  father  and 
son,  were  possessed  as  partners  ot  the  prop- 
erty which  was  destroyed  by  defendant. 
The  proof  showed  that  the  property  be- 
longed to  the  son  and  his  mother  as  part- 
ners. The  court  gave  leave  to  substitute 
the  mother  as  co-plaintiff,  when  defendant 
asked  for  a  continuance,  and  thereupon  the 
suit  was  discontinued  as  to  the  father,  and 
a  trial  at  the  suit  of  the  son  alone.  //eM, 
error,  as  denying  defendant  the  right  of 
pleading  the  non-joinder  in  abatement,  and 
that  there  was  a  fatal  variance  between  the 
allegation  and  prools.  C/ucago,  R.  1.  Sr*  P. 
R.  Co.  V.  Todd,  91  ///.  70.  Gulf,  C.  <S-  5. 
F.  R.  Co.  V.  Witt,  2  Tex.  App.  (Civ.  Cas.) 
677. 

Where  plaintiff  sues  to  recover  for  in- 
juries caused  by  an  explosion,  and  alleges 
that  it  was  caused  by  certain  oils  stored  in 
a  warehouse  east  of  plaintiff's  building,  and 
the  evidence  shows  that  it  was  south  of  the 
building,  there  is  a  fatal  variance.  Wright 
V.  Chicago  6-  N.  W.  R.  Co.,  27  ///.  App. 
200. 

Where  plaintiff  charges  that  his  property 
was  destroyed  by  sparks  from  a  certain 
*'  steam  shovel  plow  "  or  "  steam  engine  " 
operated  by  defendants,  and  the  proof 
shows  that  the  fire  was  caused  by  sparks 
from  a  steam  engine  used  by  defendants  in 
working  a  shovel  plow,  there  is  no  sub- 
stantial variance.  It  is  enough  if  the  sub- 
stance of  the  issue  is  proved,  and  variance 
in  form  merely,  or  in  matter  immaterial, 
will  not   be  regarded.    Ryan  v.  Gross,  68 


Md.  377.  II  Cent.  Rep.  502,  12  Atl.  Rep.  115, 
16  .-///  Rep.  30 J. 

135.  ActioiiH  tor  negligence,  gen- 
erally. -  Where  a  complaiiii  alleges  that 
plaintiff  WHS  injured  by  the  conductor  re- 
fusing to  stop  his  train  and  put  plaintiff  off 
at  the  proper  station,  and  that  he  wiliully 
refused  to  stop  and  carried  her  several  hun- 
dred yards  beyond  the  station,  without  her 
consent  and  against  her  protest,  there  is  a 
fata;  variance  where  the  evidence  shows 
that  the  conductor  merely  neglected  to 
stop,  and  that  plaintiff  not  only  submitted 
but  consented  to  be  put  off  at  the  point 
beyond  the  station.  Louisville  &*  JV.  R. 
Co.  v.  Johnston,  79  Ala.  436.— Adhered  to 
IN  Birmingham  Mineral  R.  Co.  v.  Jacobs, 
92  Ala.  187  ,  Highland  Ave.  &  B.  R.  Co.  v, 
Winn,  93  Ala.  306. 

Plaintiff  may  not  state  one  act  of  negli- 
gence in  his* declaration  and  recover  on 
proof  ot  another  act.  Chicago,  B.  6>»  Q.  R. 
Co.  v.  Btll,  112  ///.  360.— Applied  in  Chi- 
cago, B.  &  Q.  R.  Co.  V.  Dickson,  143  111. 
368. 

Where  the  declaration  alleges  that  certain 
wrongs,  causing  injury  to  plaintiff,  were 
wilfully  and  negligently  done,  and  plaintiff's 
evidence  shows  that  they  were  negligently 
done  merely,  a  motion  to  exclude  the  evi- 
dence for  variance  is  rightly  overruled. 
Alabama  6f  V.  R.  Co.  v.  Hanes,  69  Miss. 
160,  13  So.  Rep.  246. 

Where  the  negligence  proved  is  sufficient 
to  support  an  action,  and  is  of  the  same 
character  as  that  alleged,  although  not 
proved  to  the  extent  alleged,  there  is  no 
variance.  Werner  v.  Citizens'  R.  G».,  81  Mo. 
368;  ajftrming  11  Mo.  App.  601. — Distin- 
guishing Waldhierv.  Hannibal  &  St.  J.  R. 
Co.,  71  Mo.  514;  Price  v.  St.  Louis,  K.  C. 
&  N.  R.  Co.,  72  Mo.  414.  Buffington  v.  At- 
lantic &  P.  R.  Co..  64  Mo.  246. 

130.  Killing  stock.— Where  a  com- 
plaint avers  that  plaintiff's  cattle  were 
killed  on  the  17th  day  of  a  month,  it  is  im- 
material that  the  evidence  shows  that  they 
vtf'.z  killed  on  the  15th  day  of  the  month. 
In  such  case  plaintiff  is  n»t  confined  to  the 
date  laid  in  his  declaration,  but  may  prove 
any  date  before  the  commencement  of  the 
suit  within  the  statute  of  limitations.  7<7- 
ledo,  P.  &*  W.  R.  Co.  V.  McClannon,  41  ///. 
238.  Texas  <S-  P.  R.  Co.  v.  Virginia  R.  L. 
Gf  C.  Co.,  { Tex.)  35  Am.  6-  Eng.  R.  Cas. 
201,  7  5.   W.  Rep.  341. 

Complaint  against  a  railroad  company  to 


\ 


PLEADING,  137,  138. 


1039 


««S, 


i 


recover  the  value  of  a  mare  of  the  plaintiff 
alleged  to  have  been  killed  by  the  defend- 
ant by  running  its  locomotive  and  cars 
upon  the  mare.  The  evidence  disclosed 
that  another  railroad  company,  exclusively 
operating  the  road  as  lessee  of  the  defend- 
ant, with  its  own  locomotive  and  cars, 
committed  the  injury.  Held,  that  the  vari- 
ance was  fatal.  Cincinnati,  R.  Sf  Ft.  IV. 
A\  Co.  V.  Wood,  82  Ind.  593. 

A  complaint  against  a  railroad  company 
alleged  that  the  two  colts  killed  were  each 
of  the  value  of  $100.  The  evidence  showed 
that  one  was  worth  $150  and  the  other  $50. 
Held,  that  the  variance  was  not  material. 
Louisville,  N.  A.  &•  C.  K.  Co.  v.  Overman, 
88  Ind.  115. 

Proof  that,  by  reason  of  neglect  to  fence 
a  railroad,  the  plaintiff's  horse  went  upon 
the  track,  fell  into  a  railroad  bridge,  and  m 
some  way  was  killed — field,  not  a  case  of 
material  variance  or  of  defect  of  proof,  al- 
though the  complaint  alleged  that  the  horse 
was  killed  in  being  taken  out  of  the  bridge. 
Moser  v.  St.  Paul  &^  D.  R.  Co.,  42  Minn. 
480,  44  N.  IV.  Rep.  530. 

Plaintiff,  alleged  that  his  horses  escaped 
from  his  field  through  the  inclosed  lands  of 
divers  other  persons  before  reaching  de- 
fendant's road,  where  they  were  killed.  The 
evidence  showed  that  there  was  but  one  in- 
termediate close.  Held,  that  there  was  no 
essential  variance.  Under/till  v.  New  York 
6-  H.  R.  Co..  21  Barb.  {N.  Y.)  489. 

137.  Personal  Injuries,  generally. 
— When  the  injury  is  alleged  to  have  oc- 
curred on  the  twenty-first  day  of  a  month, 
and  the  evidence  shows  that  it  occurred  on 
the  first  day,  the  variance  is  fatal  and  the 
evidence  should  be  excluded.  East  Tenn., 
V.  &*  G.  R.  Co.  V.  Carloss,  77  Ala.  443. 
•  If  two  counts  in  a  complaint  aver  that 
the  injuries  were  caused  by  the  concurring 
acts  of  the  engineer  of  a  train  in  regulating 
its  speed,  and  the  act  of  a  yard  master  m 
placing  a  car  dangerously  near  a  switch, 
and  there  is  no  evidence  of  any  negligence 
on  the  part  of  the  engineer,  the  general 
affirmative  charge  should  be  given  as  to 
those  counts,  if  requested  by  defendant. 
Kansas  City,  M.  &*  B.  R.  Co.  v.  Burton,  97 
Ala.  240,  12  So.  Rep.  88.— Distinguishing 
Georgia  Pac.  R.  Co.  v.  Davis,  92  Ala.  300. 

Where  several  acts  and  omissions  of  duty 
are  charged  as  negligence  and  the  cause  of 
the  injury,  a  failure  to  prove  each  and  all  of 
the  alleged   acts  and  omissions  does  not 


constitute  a  variance.  Chicago,  B.  &*  Q.  R. 
Co.  V.  Warner  18  Am.  &*  Eng,  R.  Cas.  100, 
108  ///.  538. 

Plaintiff  sued  tor  an  injury  and  alleged 
that  It  was  caused  by  defendant's  neglifjciicc 
in  moving,  propelling,  and  operating  u  train. 
The  evidence  showed  that  the  injury  re- 
sulted from  the  wrongful  act  of  the  con- 
ductor in  shutting  a  car  door  on  his  hand 
and  in  pushing  him  off  the  car.  Held,  that 
there  was  a  fatal  variance.  Chicago.  B.  &* 
Q.  R.Co.v.  Wilcox  12  ///.  App.  42.— Quot- 
ing Bloomington  v.  Goodrich.  88  III.  558. 
Reviewing  Toledo,  W.  &  W.  R.  Co.  v. 
Beggs,  85  111.80. 

Where  a  complaint  alleges  that  plaintiff 
was  injured  by  reason  of  a  defect  in  defend- 
ants  cars,  there  can  be  no  recovery  where 
the  evidence  shows  that  a  defect  in  the 
track  was  the  main  cause  of  the  injury. 
Buffington  v.  Atlantic  &>  P.  R.  Co..  64  Mo. 
246— Distinguished  in  Werner  v.  Citi- 
zens' R.  Co.,  81  Mo.  368.  Followed  in 
Edens  v.  Hannibal  &  St.  ).  R.  Co.,  5  Am.  & 
Eng.  R.  Cas.  459,  72  Mo.  212  ;  Wills  i'.  Cape 
Girardeau  S.  W.  R.  Co.  44  Mo.  App.  51 ; 
Waldhier  v.  Hannibal  &  St.  J.  R.  Co.,  2  Am. 
&  Eng.  R.  Cas.  146,  71  Mo.  514. 

The  evidence  showed  that  the  injury  was 
caused  by  a  broken  rail,  while  the  petition 
charged  negligence  in  "  using  defective  ma- 
chinery "and  in  '  running  its  cars. '  V^/rf, 
that  there  was  a  fatal  variance.  (Morton 
and  Napton,  |).,  dissenting.)  Waldhier  v. 
Hannibal  &*  St.  /.  R.  Co..  2  Am.  (S-  Eng.  R 
Cas.  146,  71  Mo.  514.— Following  Buffing- 
ton  V.  Atlantic  &  P.  R.  Co.,  64  Mo.  246.— 
Distinguished  in  Werner  v.  Citizens'  R. 
Co..  81  Mo.  368. 

138.  Place  ofinjury.— Where  the  sub- 
stance of  an  action  is  whether  plaintiff  was 
injured  by  defendant,  as  alleged,  by  being 
knocked  down  by  defendant  s  car,  and  not 
where  plaintiff  was.  to  a  mathematical  pre. 
cision,  a  recovery  should  not  be  denied  be- 
cause the  place  ot  the  injury  as  averred  and 
the  place  as  proved  do  not  precisely  agree. 
Johnson  v.  Canal  &*  C.  R.  Co.,  27  La.  Ann. 

53- 

A  railroad  company  occupied  a  part  of  a 
highway  and  built  a  new  road,  upon  which 
the  travel  was  turned,  but  there  was  nothing 
to  show  that  the  company  had  proceeded 
according  to  law  in  changing  the  road,  or 
that  the  proper  authorities  had  abandoned 
the  old  road.  Plaintiff  sued  for  an  injury 
by  reason  of  the  insufficiency  ot  the  new 


r '. 


^t 


'i  ' 


1040 


PLEADING,  ISO,  140. 


road,  and  his  declaration  described  the  high- 
way by  its  termini  beyond  the  points  of 
connection  of  the  old  and  new  roads,  so 
that  the  description  would  apply  to  cither. 
Flis  evidence  sliowed  that  the  injury  was 
sustained  on  the  old  road.  Held,  that  there 
was  no  variance  between  the  aileyations 
and  the  proofs.     Barber  v,  Essex,  2"]  1 7.  62. 

130.  AcciflentH  at  croHiiiii(;s.— Plain- 
till  alleged  that  the  injury  sued  lor  occurred 
where  defendant's  track  crossed  a  certain 
street  at  its  intersection  with  a  sea  wall. 
The  evidence  showed  that  it  occurred  where 
delendant's  track  crossed  the  sea  wall,  but  a 
little  beyond  the  end  of  the  street  that  was 
used  as  a  public  thoroughfare,  but  at  a 
crossing  that  was  used  as  a  public  way  for 
numerous  teams.  Held,  that  there  was  no 
variance  between  the  allegations  and  the 
proofs.  Carraher  v.  San  Fraiu  isco  Hridge 
Co..  81  Cal.  98,  22  Pac.  Rep.  480. 

A  declaration  averred  that  plaintiff,  at 
the  time  of  the  injury,  was  at  a  point  where 
a  certain  street  crossed  the  main  track  of 
defendant's  road,  while  the  evidence  showed 
that  plaintiff  was  injured  while  standing  at 
a  point  twenty-five  or  thirty  feet  away  from 
such  street.  Held,  that  the  variance  was 
material.  Lake  Shore  &*  M.  S.  A'.  Co.  v. 
IVard,  13s  ///.  511,  26  A^.  E.  Rep.  520;  af- 
firming 35  ///.  App.  423. 

In  an  action  for  injuries  caused  by  being 
thrown  from  a  carriage  by  a  locomotive  at 
a  railroad  crossing,  a  variance  will,  after 
verdict,  be  overlooked  as  immaterial,  when 
there  is  no  dispute  or  misunderstanding  as 
to  the  precise  spot  where  the  accident  oc- 
curred, and  when  the  case  declared  upon 
and  that  proved  do  not  require  or  admit 
different  kinds  or  degrees  of  proof,  or  the 
application  of  different  rules  of  law..  Webb 
V.  Portland  &*  K.  R.  Co.,  57  Me.  1 17.— Dis- 
tinguishing Shaw  V.  Boston  &  W.  R. 
Corp.,  8  Gray  (Mass.)  45. 

An  averment  in  the  declaration  that 
plaintiff  was  struck  by  defendant's  locomo- 
tive while  traveling  in  the  highway  is  not 
sustained  by  proof  that  by  means  of  defend- 
ant's negligence  plaintiff's  horse  was  fright- 
ened and  ran  out  of  the  highway  five  or  six 
rods  before  reaching  the  railroad,  upon 
land  owned  by  defendant,  and  plaintiff  was 
there  struck  while  attempting  to  cross  the 
railroad ;  and  the  declaration  cannot  be 
amended  after  verdict  so  as  to  cure  the  va- 
riance. Shaw  V.  Boston  &*  IV.  R.  Corp. ,  .8 
Gray  (Mass.)  45.— DISTINGUISHED  IN  Webb 


7'.  Portland  &  K.  R.  Co.,  57  Me.  117.  Re- 
viewed IN  Shepatd  t.  New  Haven  &  N. 
Co.,  45  Conn,  54. 

A  declaration  laid  the  injury  as  done  at  a 
certain  street  crossing,  and  averred  defend- 
ant's duties  accordingly,  but  the  proof 
showed  that  the  collision  occurred  at  an- 
other crossing,  several  rods  djitant.  Hi/d, 
that  a  verdict  for  plaintiff  couUl  not  he 
maintained.  Kiatioioski  v.  Gr,ind  I'runk  R. 
Co..  64  Mich.  279,  31  A'.  //'.  Rep.  275. 

140.  Injuries  to  puHHeiiKurN.  —  (i) 
Fatal  variances.— An  averment  in  a  dec- 
laration that  plaintiff  "  became  and  was  a 
passenger  at  A.,"  to  be  carried  to  B.  for  re- 
ward, is  in  effect  a  statement  that  he  took 
the  train  at  A.  for  B ,  and  paid,  or  was 
ready  to  pay,  his  fare  from  the  one  point  to 
the  other,  and  will  not  be  sustained  by 
proof  of  the  purchase  of  a  ticket  from  C,  a 
point  on  the  road  before  reaching  A.,  to  D., 
a  point  several  stations  beyond  B.  Wa- 
bash Western  R.  Co.  v.  Friedman,  146  ///. 
583,  30  A'.  E.  Rep.  353.  34  N.  E.  Rep.  tin. 

A  recovery  cannot  be  had  upon  a  com- 
plaint that  the  plaintiff  was  thrown  from  a 
street-car,  when  the  evidence  shows  that  she 
must  have  stepped  or  jumped  off  volun- 
tarily. Dickson  v.  Broadway  &*  S.  A.  R, 
Co.,  41  How.  Pr.  {N.  V.)  151,  i  /.  6-  5.  330, 
appeal  dismissed  in  47  N,  y.  507. 

(2)  Immaterial  variances. — An  objection 
that  there  is  a  variance  between  a  declara- 
tion and  the  proofs,  in  that  tfie  declaration 
avers  that  plaintiff  stood  on  the  lower  step 
of  a  car  and  was  in  the  act  of  stepping 
therefrom  when  the  car  started,  while  the 
proof  is  that  plaintiff  stood  near  the  door 
of  the  car,'is  without  merit,  it  being  unneces- 
sary to  aver  the  exact  place,  the  gist  of  the 
action  being  that  the  train  started  while 
plaintiff  was  proceeding  to  alight.  McCas 
lin  v.  Lake  Shore  &^  M.  S.  R.  Co..  52  Am. 
<&-  Eng.  R.  Cas.  290,  93  Mich.  553,  53  N.  W. 
Rep.  724. 

Where  the  substance  of  a  complaint  is 
that  a  train  did  not  stop  a  sufficient  time  to 
allow  plaintiff  to  get  off  on  the  passenger 
platform,  it  is  not  b,  fatal  variance  where 
the  evidence  shows  that  the  train  stopped 
opposite  the  platform,  not  the  usual  stop- 
ping place,  but  which  plaintiff  had  reason 
to  believe  was  the  usual  place,  and  again 
started  before  he  could  get  off.  (Henry, 
C.|..  and  Sherwood,  J.,  dissenting.)  Leslie 
V.  Wabash,  St.  L.  &>  P.  R.  Co.,  26  Am.  6* 
Eng.  R.  Cas.  229.  88  Mo.  50. 


h 


17.    R«- 

'en  &  N. 


[1 


(lone  at  a 
defend- 
le  proof 
d  at  an- 
t.  //M. 
not  be 
I'runk  K. 
75. 

TN.  —  ( I ) 

n  a  dec- 
nd  was  a 

B.  for  re- 
he  took 

,  or  was 
e  point  to 
tamed  by 
from  C,  a 

A.,  to  D., 
h  B.  Wa- 
lt. 146  ///. 
Rep.  nil. 
on  a  com- 
wn  from  a 
vs  that  she 
ofl    volun- 

S.  A.  R. 

Sf  S.  330, 

1  objection 
a  declara- 
declaration 
lower  step 
f  stepping 
,  whde  the 
r  the  door 
igunneces- 
gist  of  the 
irted  while 
t.  McCas- 
'0..  52  Am, 
;.  S3  A'-  W'. 

}mplaint  is 
ent  time  to 
e  passenger 
ince  where 
iin  stopped 
usual  stop- 
had  reason 
,  and  again 
[.  (Henry, 
ig,)  Leslie 
26  Am.  &> 


TTP 


PLEADING,  141,  142. 


1041 


Where  the  actual  negligence  charged 
against  a  carrier  is  permitting  a  car  to  be 
put  in  motion  while  plaintiff  was  in  the  act 
of  leaving  it.  without  giving  him  a  reasona- 
ble time  to  alight  safely  therefrom,  whereby 
he  was  thrown  from  the  car,  and  the  proof 
is  that  it  slackened  up  so  as  to  induce  plain- 
tiff to  get  into  a  position  to  alight,  and 
then  started  with  such  violence  as  to  throw 
him  oil— AM,  no  variance.  Ruienhour  v. 
Kansas  City  Cable  R.  Co.,  102  Mi>.  270.  13  S. 
IV.  Rep.  889.  14  S.  IV.  Rep.  760, 

Where  a  petition  charges  negligence  in 
prem.'i'ur  ir  starting  a  street-car  while 
plaintiff  was  alighting,  and  the  evdence 
.upports  the  charge,  the  fact  that  a  defect- 
ive brake  contributed  to  the  injury  will  not 
defeat  a  recovery,  and  constitutes  no  vari- 
ance. Buck  V.  Peoples  St.  R.,  E.  L.  &-  P. 
Co.,  52  Am.  &*  Ettir.  R.  Cas.  512,  108  Mo. 
179,  18  S.  IV.  Rep.  1090. 

141.  ExpiilMioii  ot  passengers.— A 
declaration  as  for  injury  to  plaintiff  in  being 
wrongfully  put  off  the  train  at  a  place  re- 
mote from  the  railway  station  will  not 
support  a  recovery  where  the  proof  shows 
that  the  injuries  suffered,  which  were  very 
great,  were  mainly  due  to  the  passenger's 
being  carried  past,  but  finally  landed  near 
the  station  so  late  that  the  carriage  which 
had  called  for  him  had  gone,  th  driver 
supposing  that  he  had  not  come,  and  when 
all  places  of  shelter  were  closed,  and  all 
conveyances  gone,  it  being  after  midnight, 
so  that  he  was  obliged,  while  suffering 
from  fever,  to  walk  home  three  quarters  of 
a  mile  in  a  freezing  rain.  Harditig  v.  Chi- 
cago &^  G.  T.  R.  Co.,  21  Am.  &*  Bug.  R. 
Cas.  410,  56  Mich.  628.  23  N.  W.  Rep.  445. 

Where  the  cause  ot  action  stated  in  the 
complaint  is  that  the  conductor  ot  a  freight 
train  wrongfully  expelled  plaintiff  there- 
from, and  the  evidence  shows  that  plaintiff 
had  no  right  to  travel  upon  the  train  with- 
out a  permit  from  the  superintendent,  and 
that  the  ticket  agent  who  sold  plaintiff  his 
ticket  promised  to  obtain  such  permit,  but 
failed  to  do  so,  the  variance  is  fatal  to 
plaintiff's  right  to  recover.  Thomas  v.  Chi- 
cago 5-  G.  T.  R.  Co.,  37  Am.  <S-  £ng.  R.  Cas. 
108,  72  Mich.  355,  40  A'^.  IV.  Rep.  463. 

142.  Injuries  to  employes.— (1)  Fa- 
tal variances.— Where  the  complaint  al- 
leges that  plaintiff  was  injured  while  in  the 
discharge  ot  his  duties  as  a  brakeman  by 
stepping  into  a  hole  on  the  railroad  track, 
which  caused  him  to  stumble  and  fall  in 

6  D  R   D.— 66 


front  of  a  moving  car,  and  the  evidence 
shows  that  the  accident  was  caused  by  his 
stepping  into  a  depression  between  the  ends 
of  two  cross-ties,  outside  of  the  rails,  there 
is,  //  see/IIS,  a  fatal  variance.  J'ryor  v.  I.uuis- 
vilU  .S-  N.  R.  Co.,  90  Ala.  32,  8  So.  Rep.  55. 

In  an  action  for  being  thrown  from  a 
handcar,  tiio  declaration  alleged  that  a  pin 
or  bolt  becaii  '■  douched  from  the  handle 
and  tiien  became  entangled  in  plaintiff's 
clothing,  and  that  it  became  detached  be- 
cause i:  md  otiier  parts  nml  attachments  of 
the  hii.idlc  were  insuhicieiit  and  unfit  for 
the  use  to  wl;  -li  they  had  been  applied. 
The  evidence  v  as  that  while  plaintiti  was 
turning  ilie  crank  a  bolt  at  the  end  of  the 
crank  took  hold  of  his  coat  and  threw  him 
over  and  the  car  ran  over  him.  Held,  that 
there  was  a  variance  betwti.;:  theallegations 
and  the  proof.  Carey  v.  Boston  &*  M.  R. 
Co..  158  Mass.  228,  33  A'.  E.  Rep.  ',\2. 

A  declaration  for  injury  to  a  brakeman 
while  coupling  cars  set  forth  that  it  was  oc- 
casioned by  a  deep  hole  between  the  rails. 
The  evidence  was  that  it  was  between  the 
rails  of  a  side  track.  Held,  that  the  decla- 
ration would  naturally  be  construed  to  re- 
fer to  ttie  main  track,  and  that  the  variance 
was  material,  especially  when  taken  in  con- 
nection with  other  variances  as  to  the 
nature  of  the  hole  and  the  extent  of  the  in- 
jury. Batterson  v.  Chicago  &*  G.  T-  R.  Co., 
8  Am.  &*  Eng.  R.  Cas.  123,  49  Mich.  184, 13 
A'.  W.  Rep.  508. 

There  is  a  fatal  variance  between  a  decla- 
ration framed  upon  the  theory  that  a  freight 
train,  which  plaintiff's  decedent,  a  switch- 
man, mounted  for  the  purpose  of  uncoupling 
a  car,  was  moving  backward,  uncontrolled 
by  either  brakeman  or  engineer,  and  with- 
out orders,  at  the  time  of  the  accident,  and 
proof  that  the  train  was  moving  forward 
under  the  order  of  the  conductor.  Pen- 
nington V.  Detroit,  G.  H.  &^  M.  R.  Co.,  90 
Mich.  505,  51  A^.   W.  Rep.  634. 

Plaintiff  sued  for  an  injury  received  while 
engaged  in  unloading  iron  pipes  from  cars. 
He  charged  tliat  defendant's  foreman  was 
incompetent,  reckless,  careless,  and  brutal, 
and  that  by  reason  thereof  plaintiff  was  com- 
pelled to  take  a  position  of  unnecessary  dan- 
ger in  doing  the  work,  and  that  his  injury 
was  the  direct  result  of  the  foreman's  cursing, 
threatening,  and  driving  the  men  under  him. 
The  evidence  showed  that  the  foreman  was  a 
profane  man,  but  failed  to  show  any  threat 
to  punish  or  discharge  the  men,  or  that  the 


m 


1042 


PLEADING,  142. 


place  at  which  plaintiff  was  ordered  to  work 
was  an  improper  one,  or  more  dangerous 
than  any  otiier  place  necessary  to  do  the 
work ;  and  tended  to  show  that  the  injury 
was  the  result  of  a  defective  iron  bar  used 
in  raising  the  pipes.  HM,  that  there  was 
a  fatal  variance  between  the  allegations  and 
the  proofs.  Ischer  v.  St,  Louis  Bridge  Co., 
95  Mo.  261.  14  West.  Rep.  726,  8  S.  IV.  Rep. 
367.— Applied  in  Ballard  v.  Chicago,  R.  I. 
&  P.  R.  Co.,  51  Mo.  App.  453- 

Where  the  gist  of  the  complaint  is  that 
the  master  has  injured  the  servant,  and  the 
proof  shows  that  plaintiff's  injury  was 
caused  by  the  negligence  of  a  fellow-servant, 
defendant  may  move  for  nonsuit  without 
having  pleaded  any  other  defense  than  the 
general  denial.  Sayward  v.  Carlson,  i 
Wash.  29,  23  Pac.  Rep.  830. 

(2)  Immaterial  variances. — A  brakeman 
sued  for  a  personal  injury,  and  alleged  that 
he  was  an  employe  of  one  railroad,  and  as 
such  was  riding  on  a  train  which  was  pass- 
ing over  the  track  of  defendant  company 
when  he  was  injured.  The  evidence  showed 
that  the  train  had  a  right  to  pass  over  de- 
fendant's road  under  some  contract  be- 
tween tlie  two  companies,  and  that^plaintiff 
and  the  other  employes  were  in  fact  the 
employes  of  defendant.  Held,  that  he  was 
not  supposed  to  knovv  the  exact  relations 
existing  between  the  two  companies,  or  the 
loyal  effect  of  such  contract,  and  the  vari- 
ance was  not  so  material  as  to  exclude 
plaintiff's  evidence.  Zeigler  v.  Danbury  &* 
N.  R.  Co.,  23  Am.  &*  Eng.  R.  Cas.  400,  52 
Conn.  543. 

A  declaration  alleged  that  plaintiff's  hand 
was  crushed  by  the  falling  of  an  eccentric 
upon  it.  The  proof  was  that  the  eccentric 
in  falling  knocked  his  hand  upward  and 
crushed  it  against  other  machinery.  Held, 
not  so  far  inconsistent  with  the  declaration 
as  to  constitute  a  substantial  variance,  but 
it  would  have  been  better  to  amend  the 
declaration  so  as  to  make  it  conform  accu- 
rately to  the  evidence.  Georgia  R.  &*  B. 
Co.  v.  Miller,  90  Ga.  571,  xd  S.  E.  Rep.  939. 

It  was  averred  that  the  accident  happened 
while  plaintiff  was  acting  as  a  brakeman  on 
a  freight  train,  while  the  proof  showed  he 
was  acting  as  a  brakeman  in  switching  cars 
at  a  station  in  making  up  a  freight  train. 
Held,  that  there  was  no  variance  in  respect 
to  the  character  of  the  train.  Chicago  &• 
N.  W.  R.  Co.  v.  Jackson,  55  ///.  492,  i  Am. 
Ry.  Rep.  569. 


A  declaration  alleged  that  the  deceased, 
at  the  time  he  was  struck  by  a  train,  was 
engaged  in  his  duty  in  passing  over  and 
upon  a  certain  track  "  to  give  directions  to 
others  of  his  co-servants,  and  to  aid  in  the 
switching,  movement,  and  operation  of  cer- 
tain cars  being  switched  upon  "  such  track. 
There  was  evidence  tending  to  prove  this 
allegation.  Held,  that  proof  that  deceased 
had  another  duty  to  perform,  as  taking  the 
number  of  the  cars  in  a  memorandum  book, 
constituted  no  variance.  Pennsylvania  Co. 
V.  Conlan,  6  Am.  &*  Eng.  R.  Cas.  243,  loi 

III-  93. 

In  an  action  by  a  brakeman  for  injuries 
received  while  attempting  to  uncouple  cars, 
he  alleged  that  he  was  pushed,  carried,  and 
crowded  along  the  track  to  a  cattle-guard, 
int )  which  he  fell,  by  the  moving  engine 
and  cars.  Held,  that  it  was  not  necessary 
that  this  allegation  should  be  literally  estab- 
lislied,  but  that  the  ultimate  inquiry  was 
whether  the  falling  into  the  cattle-guard, 
which  was  the  cause  of  the  injury,  was 
caused  by  the  engine  and  cars,  and  that,  if 
the  evidence  tended  to  prove  that  fact,  there 
was  no  material  variance,  even  though  it 
showed  that  he  voluntarily  walked  between 
the  engine  and  the  car  to  the  cattle-guard. 
Sedgwick  v.  Illinois  C.  R.  Co.,  31  Am.  &* 
Eng.  R.  Cas.  207,  73  Iowa  1 58,  34  N.  W. 
Rep.  790. 

In  an  action  for  a  personal  injury  alleged 
to  have  been  caused  by  the  negligence  of  a 
section  boss  in  causing  the  speed  of  the 
train  to  be  increased,  the  evidence  showed 
that  it  was  the  conductor  who  ordered  the 
increase  of  speed.  Held,  to  be  an  immate- 
rial variance,  under  Iowa  Code,  §  2686. 
Rayburn  v.  Central  Iowa  R.  Co.,  74  Iowa 
637.  35  N.  W.  Rep.  606,  38  N.  W.  Rep. 
520. 

The  variance  between  an  allegation  in  a 
declaration  that  plaintiff  was  employed  as 
a  switchman,  and  was  discharging  his  duties 
as  such  when  injured,  and  proof  that  he 
was  the  conductor  of  a  switch  engine,  or 
foreman  of  a  switching  crew,  is  immaterial. 
Ashman  v.  Flint  &•  P.  M.  R.  Co.,  53  Am. 
«S-  Eng.  R.  Cas.  80,  90  Mich.  567.  51  JV.  W. 
Rep.  645. 

A  petition  alleged  that  plaintiff  was  in- 
jured by  being  thrown  from  a  hand-car. 
The  testimony  showed  that  the  car  was 
suddenly  stopped,  and  plaintiff,  to  save  him- 
self from  apparent  danger,  "jumped  from 
the  car."    //^/r/,  no  material  variance.    Gulf, 


PLEADING,  143-145. 


1043 


deceased, 
train,  was 

over  and 
ctions  to 
aid  in  the 
on  of  cer- 
ich  track. 
)rove  this 

deceased 
aking  the 
lum  book, 
Ivania  Co. 
243.  >oi 

>r  injuries 

Quplecars, 

Tried,  and 

ttle-guard, 

ng  engine 

necessary 

rally  estab- 

iqiiiry  was 

ttle-guard, 

njury,  was 

ind  that,  if 

fact,  there 

though  it 

ed  between 

attle-guard. 

31  Am.  &* 

;,  34  N.  W. 

iury  alleged 
ligence  of  a 
peed  of  the 
ice  showed 
ordered  the 
an  immate- 
de,  §  2686. 
'0.,  74  Iowa 
r.    IV.  Rep. 

igation  in  a 
:mployed  as 
ig  his  duties 
oof  that  he 
1  engine,  or 
immaterial, 
Co.,  53  Am. 
7.  SI  N.  W. 

ntifl  was  in- 
a  hand-car. 
the  car  was 
to  save  him- 
lumped  from 
iance.    Gulf, 


i  ■ 


C.  &»  S.  F.  K.  Co.  V.  Johnson,  83  Tex.  628, 
195.  IV.  Rep.  151. 

A  petition  alleged  that  while  ascending  a 
ladder  on  the  side  of  a  car  of  a  moving  train 
a  brakeman  was  struck  by  a  timber  con- 
nected with  a  tank,  which  projected  too 
near  the  road  for  the  safety  of  employ6s. 
The  proof  showed  that  the  beam  which 
struck  him  projected  from  a  temporary  stag- 
ing erected  around  the  tank,  which  was  be- 
ing repaired,  and  that  the  scaffold  was 
nearer  to  the  track  than  the  tank.  Held, 
not  a  material  variance.  Texas &•  P.  R.  Co. 
V.  Hohn,  I  Tex.  Civ.  App.  36,  21  S.  W.  Rep. 
942. 

V.  AMENDED  AND   SUPPLEHENTAL 
PLEADINGS. 

143.    Amendments,    generally.  — 

An  amendment  to  a  declaration  which  does 
not  propose  to  correct  a  defect  of  form  or 
supply  some  matter  of  necessary  substance 
should  not  be  allowed.  IVtgton  v.  Pennsyl- 
vania R.  Co.,  20  Phila.  (Pa.)  182. 

Where  the  contention  is  over  the  rentals 
due  from  one  company  to  another  for  the 
use  of  certain  rolling  stock,  defendant  com- 
pany should  not  be  permitted  to  amend  its 
Jinswer  so  as  to  impose  a  new  and  additional 
set-ofi  which  was  not  presented  at  a  hearing 
before  the  master,  and  where  it  appears  that 
such  claim  is  pending  in  a  proceeding  in 
another  court  where  the  merits  of  the  claim 
can  be  adjudicated.  Central  Trust  Co.  v. 
IVabash,  St.  L.  6-  P.  R.  Co.,  50  Fed.  Rep. 

857. 

Where  the  original  declaration  fails  to 
show  jurisdiction,  in  a  suit  against  a  railroad 
company  for  refusal  to  issue  a  through  bill 
of  lading,  because  the  action  was  not 
brought  in  the  county  where  the  refusal 
was  made  or  defendant  resided,  an  amend- 
ment statinp  a  notification  to  the  agent  in 
the  county  where  the  action  was  brought, 
and  a  request  for  the  transfer  of  the  goods 
to  another  line  in  the  same  cars,  does  not 
show  any  contract  in  that  county  so  as  to 
give  jurisdiction.  Coles  v.  Central  R.  &•  B. 
Co.,  82  Ga.  149,  9  S.  E.  Rep.  127. 

If  one  cause  of  action  at  commo  .  law  be 
well  set  forth,  and  another  arising  under  a 
statute  be  imperfectly  pleaded,  this  affords 
no  reason  why  an  amendment  of  the  latter 
should  not  be  made.  Daley  v.  Boston  &• 
A.  R.  Co.,  33  Am.  &*  Eng.  R.  Cas.  298,  147 
Mass.  1 01,  6  N.  Eng.  Rep.  349,  16  N.  E. 
Rep.  690. 


144.  Discretionary  power  of  the 
courts.  —  The  permitting  or  refusing 
amendments  to  pleadings  is  a  matter  within 
the  sound  discretion  of  the  trial  judge;  and 
unless  it  is  made  clearly  to  appear  that  he 
has  abused  this  discretion,  and  a  party  has 
thereby  been  deprived  of  the  opportunity  to 
make  his  case  or  defense,  the  supreme  court 
will  not  interfere.  It  is  not  necessarily  a 
fatal  objection  to  a  proposed  amendment 
that  it  is  in  fact  an  additional  defense  or 
an  additional  cause  of  action.  Omaha  &* 
R.  V.  R.  Co.  v.  Moschel,  56  Am.  <S-  Eng.  R. 
Cas.  674,  38  JVei.  281.  56  N.  W.  Rep.  875. 

An  express  company  brought  suit  as  a 
corporation,  and  afterwards,  by  leave  of 
court,  filed  an  amended  declaration  in  the 
name  of  its  president  for  the  use  of  the 
company.  Held,  that  the  amendment  was 
within  the  discretion  of  the  trial  court,  and 
not  reviewable.  Chapman  v.  Barney,  129 
U.  S.  677,  9  Sup.  Ct.  Rep.  426. 

When  the  chancellor,  on  sustaining  a  de- 
murrer to  a  bill,  dismisses  it  because  "  no 
amendment  can  be  made  "  which  will  give 
it  equity,  this  relieves  the  complainant  of 
the  duty  of  asking  leave  to  amend  ;  and 
this  court,  while  affirming  the  ruling  on  the 
demurrer,  will  reverse  and  remand,  in  order 
that  the  complainant  may  have  an  oppor- 
tunity to  amend,  unless  the  record  affirma- 
tively shows  that  no  amendment  can  give 
equity  to  the  bill.  Georgia  Pac.  R.  Co.  v. 
Wilks,  38  Am.  <S-  Eng.  R.  Cas.  665.  86  Ala. 
478,  6  So.  Rep.  34. 

Granting  leave  to  change  the  date  at 
which  a  matter  is  alleged  to  have  taken 
place  shows  no  abuse  of  discretion,  although 
by  the  former  date  the  action  was  barred, 
and  by  the  latter  not,  unless  where  it  ap- 
pears that,  under  pretense  of  amendment, 
a  cause  of  action  not  barred  was  substituted 
for  one  barred ;  and  the  court  may  look  at 
the  whole  record  to  determine  that  ques- 
tion. Kansas  Pac.  R.  Co.  v.  Kunkel,  17 
Kan.  145. 

145.  There  must  be  something  to 
amend  by. — Where  the  original  declara- 
tion sets  forth  no  cause  of  action,  it  is  error 
to  allow  an  amendment  thereto.  Martin 
v.  Gainesville,  J.  &•  S.  R.  Co.,  78  Ga.  307.— 
Overruled  in  Ellison  v.  Georgia  R.  Co., 
87  Ga.  691. 

When  the  amendment  needed  is  one  of 
substance  itself,  "  enough  to  amend  by " 
does  not  mean  the  same  as  "  enough  to  be 
good  in  substance  without   amendment." 


.ft 


1044 


PLEADING,  146. 


'•s 


ml 


'  411 


On  the  contrary,  failing  to  be  good  in  sub- 
stance is  generally  the  reason  why  amend- 
ment of  substance  is  needed.  "  Enough  to 
amend  by  "  is  to  be  determined  by  what  is 
enough  relatively  to  the  particular  amend- 
ment needed  and  offered.  There  may  be 
enough  to  amend  by  in  one  respect,  though 
not  in  another.  The  Code  does  not  make 
the  standard  for  form  and  substance  the 
same.  Ellison  v.  Georgia  R.  Co.,  87  Ga. 
691,  13  S.  E.  Rep.  809.— Overruling  Mar- 
tin V.  Gainesville.  J.  &  S.  R.  Co.,  78  Ga.  307, 
— Applied  in  Bright  v.  Central  City  St.  R, 
Co..  88  Ga.  535.  Followed  in  Smith  v. 
Georgia  R.  &  B.  Co.,  87  Ga.  764. 

140.  AiiieiKliiients  in  respect  to 
parties. — In  an  action  against  a  railroad 
company,  the  summons  and  complaint  may 
be  amended  under  Ala.  Code,  §  3156,  by 
adding  an  averment  that  defendant  is  a 
body  corporate,  and  is  sued  in  its  corporate 
capacity,  such  amendment  neither  intro- 
ducing a  new  party  nor  working  a  departure 
or  variance.  Western  R.  Co.  v.  Sistrunk, 
85  Ala.  352,  5  So.  Rep.  79. 

A  declaration  by  a  consignee  against  a 
carrier  for  damages  which  have  never  been 
sustained  by  plaintiff  if  not  amendable  by  in- 
troducing as  a  usee  of  the  action  a  purchaser 
from  him  who,  by  reason  of  paying  for  the 
goods  more  than  they  were  worth,  has  sus- 
tained damage.  Henry  \.  Central  R.  &•  B. 
Co..  89  Ga.  815,  15  S.  E.  Rep.  757. 

Where  one  railroad  corporation  is  sued 
for  a  tort,  the  declaration  cahnot  be  amend- 
ed by  substituting  another  as  defendant, 
under  the  guise  of  correcting  a  misnomer. 
Nashville,  C.  &»  St.  L.  R.  Co.  v.  Edwards, 
52  Am.  &*  Erig.  R.  Cas.  62,  91  Ga.  24,  16 
S.  E.  Rep.  347. 

Where  the  action  is  against  the  Nashville, 
Chattanooga  &  St.  Louis  railroad  company, 
and  the  declaration  alleges  that  "  defendant 
operates  as  lessee  the  Western  &  Atlantic 
Railroad,"  an  amendment  stating  that  "the 
lessee  of  the  Western  &  Atlantic  Railroad 
sued  in  this  case,  and  operating  said  road  at 
the  time  of  the  injuries  to  plaintiff,  was 
known  and  styled  as  the  Western  &  Atlan- 
tic Railroad  Company,  by  virtue  of  a  public 
act  of  this  state,"  did  not  make  the  latter 
company  a  party  to  the  action.  Nashville, 
C.  &•  St.  L.  R.  Co.  v.  Edwards,  52  Am.  &* 
Eng.  R.  Cas.  62,  91  Ga.  24,  16  S.  E.  Rep. 

347. 

A  misnomer  of  the  real  party  intended  to 
be    sued,  upon    whom    process    has  been 


served,  may  be  corrected  by  amendment. 
Such  an  amendment  does  not  amount  to  a 
substitution  of  a  defendant.  New  Albany 
<S>»  5.  R.  Co.  v,  Laiman,  8  Ind.  212.— Fol- 
lowed in  New  Albany  &  S.  R.  Co.  v. 
Chamberlain,  8  Ind.  278. 

In  an  action  by  the  state  to  the  use  of  an- 
other against  a  railroad  company  for  caus- 
ing the  death  of  a  certain  party,  the  narr 
subsequently  filed,  by  mistake,  omitted  the 
name  of  the  state.  Held,  that  the  narr 
might  be  amended  so  as  to  conform  to  the 
original  titling  of  the  action.  Baltimore  &» 
O.  R.  Co.  V.  State,  19  Am.  <S-  Eng.  R.  Cas. 
83,  62  Md.  479,  50  Am.  Rep.  233. 

A  bill  by  a  mere  naked  trustee  of  an 
equitable  interest  in  lands  was  permitted  to 
be  amended  so  as  to  make  the  cestui  que 
trust  a  complainant,  and  the  real  trustee  a 
party  defendant,  so  as  to  secure  the  rights  of 
the  cestui  que  trust  in  an  award  made  to  the 
real  trustee  under  proceedings  to  condemn 
the  lands  by  a  railrc?d  company.  Mclntyre 
V.  Easton  &*  A.  R.  Co.,  26  N.  J.  Eq.  425. 

More  than  sixty  days  after  the  property 
of  a  railroad  company  had  been  sold,  and 
the  purchasers  had  formed  a  new  corpora- 
tion, and  the  receiver  had  been  discharged, 
plaintiff  brought  an  action  against  the  re- 
ceiver for  services  rendered.  Held,  that  the 
action  could  not  be  maintained  against  the 
receiver  under  N.  Y.  Act  of  1876,  ch.  446, 
§  3,  but  the  new  company  was  subject  to  the 
same  liability  that  had  existed  against  the 
receiver ;  therefore  it  was  proper  to  allow 
plaintiff  to  amend  by  striking  out  the  name 
of  the  receiver  and  inserting  that  of  the 
new  company.  Abbott  v.  Jewett,  25  Hun 
{N.  K.)6o3. 

It  was  obviously  the  intention  of  plaintiff 
to  sue  the  receivers  of  a  road  in  their  offi- 
cial capacity,  but  the  trial  court  held  that 
the  complaint  stated  a  case  against  the  re- 
ceivers in  their  individual  capacity,  because 
it  was  not  explicitly  stated  that  the  suit 
was  against  them  as  receivers ;  whereupon 
plaintiff  asked  and  obtained  leave  to  file  an 
amended  complaint,  both  the  original  and 
amended  complaints  counting  upon  the 
same  transaction.  Held,  that  the  amend- 
ment was  properly  allowed.  Eddy  v.  Pow- 
ell, 49  Fed.  Rep.  814,  4  f/.  5.  App.  259,  i  C. 
C.  A.  448. 

Where  an  information  against  a  street 
railway  had  been  amended  by  merely  add* 
ing  a  party  by  the  direction  of  the  court, 
a  motion  to  take  the  amended  information 


III     !' 


PLEADING,  147,  148. 


1045 


indment. 
unt  to  a 
')  Albany 

2.— FOL- 

.   Co.  V. 

ise  of  an- 
for  caus- 
the  narr 
itted  the 
the  narr 
m  to  the 
timore  &* 
R.  Cas. 

ee  of  an 
mitted  to 
•estui  que 

trustee  a 
:  rights  of 
ide  to  the 

condemn 

Mclntyrt 
q.  425. 
5  property 

sold,  and 
V  corpora- 
lischarged, 
nst  the  re- 
^d,  that  the 
igainst  the 
76,  ch.  446, 
bject  to  the 
Igainst  the 
;r  to  allow 
t  the  name 
hat  of  the 
\t,  25   Hun 

of  plaintiff 
1  their  offi- 
t  held  that 
inst  the  re- 
ity,  because 
at  the  suit 

whereupon 
ve  to  file  an 
original  and 
upon  the 
the  amend- 
:ddy  V.  Pffw- 
pp.  259.  I  C. 

nst  a  street 

merely  add- 

)f  the  court, 

information 


ofl  the  files  because  not  signed  by  the  at- 
torney-general was  refused.  Attorney-Gen- 
eral V.  Toronto  St.  R.  Co.,  2  Chan.  Chamb. 
(U.  C.)  321. 

147.  Amciidmciits  changing^  the 
form  of  action.— Untier  Arkansas  Code, 
that  there  shall  be  but  one  form  of  civil  ac- 
tion, and  that  the  court  shall  not,  in  case  of 
error  of  plaintiff  as  to  the  kind  of  proceed- 
ings adopted,  dismiss  the  action,  but  shall 
allow  plaintiff  to  amend,  and  transfer  the 
action  to  the  proper  docket,  it  is  error  to 
dismiss  an  action  to  enjoin  a  railroad  com- 
pany from  continuing  to  occupy  plaintiff's 
lands  without  compensation  on  the  ground 
that  plaintiff  has  an  adequate  remedy  at 
law.  the  proper  course  being  to  allow  plain- 
till  to  amend,  and  order  the  action  to  be 
transferred  to  the  proper  docket.  Organ  v. 
Memphis  &*  L.  R,  R.  Co.,  39  Am.  &•  Ettg. 
R.  Cas.  75,  51  Ark.  235,  11  S.  H^.  Rep.  96. 

A  declaration  sounding  m  tort  against  a 
railroad  company  for  violation  of  its  duty  as 
a  common  carrier  is  not  amendable  by  con- 
verting it  in  whole  or  in  part  into  an  action 
upon  contract  to  carry.  Cox  v.  Richmond 
Sf  D.  R.  Co.,  87  Ga.  747.  \i  S.  E.  Rep.  827. 

The  amendment  of  a  petition,  by  leave 
and  before  trial,  which  changes  the  form  of 
the  action  from  one  ex  contractu  to  one  ex 
delicto  is  not  objectionable,  provided  the 
petition  still  relates  to  the  same  transaction 
or  tort.  Robertson  v.  Springfield  &*  S.  R. 
Co.,  21  Mo.  App.  633. 

The  form  of  action  may  be  changed  by 
amendment  when  justice  requires  it  to  be 
done,  and  the  question  of  justice,  so  far  as 
it  is  a  question  of  fact,  is  determined  at  the 
trial  term.  Cocheco  Aqueduct  Assoc,  v.  Bs- 
ton  5-  M.  R.  Co.,  62  A'.  H.  145. 

148.  What  aiiieufliuents  will  be 
refused  as  nddinga  new  cause  of  ac- 
tl«Mi. — Where  plaintiff  has  declared  for  in- 
juries arising  from  the  forming  of  a  pond 
of  water  by  a  railroad  by  damminga  stream, 
a  proposed  amendment  to  the  effect  that 
the  injuries  were  caused  by  the  throwing  up 
of  an  embankment  by  the  road,  and  expos- 
ing fresh  earth  to  the  sun  and  air  and  thus 
causing  malaria,  is  a  new  cause  of  action. 
Central  R.  &>  B.  Co.  v.  Wood,  51  Ga.  515,  8 
Am.  Ry.  Rep.  9. 

Where  suit  is  brought  against  a  railroad 
on  a  written  contract  for  the  shipment  of 
livestock, the  declaration  cannot  be  amend- 
ed so  as  to  allejje  that  the  agents  of  the 
company    ])rociired  the  contract    by  fraud 


and  deceit  as  to  the  construction  and  ca- 
pacity of  the  cars  to  be  used,  whereby  the 
animals  were  overcrowded  and  seriously 
damaged.  Mitchell  v.  Georgia  R.  Co.,  68 
Ga.  644. 

Where  a  declaration  .laims  damages  by 
reason  of  plaintiff  having  fallen  into  a  well  on 
the  right  of  way  of  a  railroad,  and  which  had 
been  carelessly  left  open  and  unguarded,  an 
amendment  which  alleges  that  the  well  was 
on  the  land  of  plaintiff,  and  that  defend- 
ant entered  on  the  land  without  plaintiff's 
knowledge  or  consent  and  cut  away  the  veg- 
etable guards  and  protection  around  the 
well,  seeks  to  introduce  a  new  cause  of  ac- 
tion and  is  properly  rejected.  Henderson  v. 
Central  R.  Co.,  73  Ga.  718.— Followed  in 
Central  R.  Co.  v.  Wolff,  74  Ga.  664. 

Where  the  action  is  against  a  company 
to  recover  money  paid  for  freight  above  the 
rate  fixed  by  the  railroad  commissioners, 
the  declaration  cannot  be  amended  by  add- 
ing a  count  as  at  common  law.  Parmelee 
v.  Savannah,  F.  &^  VV.  R.  Co.,  78  Ga.  239, 
2  S.  E.  Rep.  686. 

To  an  action  against  a  railroad  company 
for  injuries  received  in  Alabama  from  ue- 
fective  materials  furnished  to  its  servant  an 
amendment  declaring  on  an  Alabama  stat- 
ute giving  a  right  of  recovery  on  other 
grounds  adds  a  new  cause  of  action  and  is 
not  allowable.  Such  amendments  might  be 
made  if  the  statute  were  invoked,  though 
defectively,  in  the  original  declaration. 
Bolton  V.  Georgia  Pac.  R.  Co.,  83  Ga.  659,  10 
S.  E.  Rep.  352. — Following  Exposition 
Cotton  Mills  V.  Western  &  A.  R.  Co.,  83 
Ga.  441. 

A  declaration  sought  to  recover  damages 
to  machinery  by  reason  of  defendant's  care- 
lessness and  negligence.  Plaintiff  offered 
an  amendment  alleging  that  defendant  had 
received  the  machinery  from  a  connecting 
road  as  in  good  order,  and  was  therefore 
liable  under  Ga.  Code,  §  2084,  which  pro- 
vides that  in  case  of  connecting  railroads 
"  the  last  company  which  has  received  the 
goods  as  '  in  good  order '  shall  be  responsi- 
ble to  the  consignee  for  any  damage." 
Held,  tliat  as  the  original  declaration  stated  a 
cause  of  action  arising  at  common  law,  and 
the  amendment  a  purely  statutory  liability, 
the  amendment  was  properly  rejected  un- 
der Ga.  Code,  §  3840,  which  declares  that  no 
amendment  adding  a  new  and  distinct  cause 
of  action  shall  be  allowed  unless  expressly 
provided  for  by  law.    Exposition  Cotton  Mills 


1046 


PLEADING,  149. 


i» 


^^^1 


li  F 


V.  Western  6-  A.  J!.  Co..  40  Am.  &>  Eng.  R. 
Cas.  169,  83  Ga.  441,  10  S.  E.  Rep.  113.— 
Followed  in  Bolton  v.  Georgiii  Pac,  R. 
Co.,  83  Ga.  659,  10  S.  E.  Rep.  352. 

A  declaration  against  a  company  for  the 
value  of  land  permanently  appropriated  by 
it  under  its  charter  is  not  amendable  by  add- 
ing a  count  for  the  value  of  soil  taken  from 
the  land  and  appropriated  to  the  use  of  the 
company,  the  two  causes  of  action  being 
difTcrent,  the  first  treating  the  land  as 
realty  and  as  sold  to  the  company,  the  sec- 
ond treating  the  soil  taken  as  personalty 
and  as  sold  to  the  company.  Chattanooga, 
R.  &•  C.  R.  Co,  V.  East  Rome  Town  Co.,  89 
Ga.  732,  16  S.  E.  Rep.  308. 

Plaintiff  commenced  an  action  against 
defendant  company,  in  the  nature  of  eject- 
ment, for  v-rongfully  withholding  certain 
premises  I'om  plaintiff.  Heiii,  that  an 
amendment  which  would  have  tlie  effect  of 
changing  the  action  so  as  to  compel  the 
company  to  purchase  the  land  at  a  price 
fixed  by  the  court,  or  to  remove  its  road 
therefrom,  was  properly  denied.  Gas-Light 
Co.  V.  Rome,  W.  6-  O.  R.  Co.,  51  Hun  119, 
24  N.  Y.  S.  R,  154,  5  N.  V.  Supp.  459. 

Suit  was  commenced  to  enforce  certain 
notes  given  by  the  superintendent  of  a  rail- 
road, whereupon  the  state  interposed  and 
became  a  party,  setting  up  ownership  of 
the  road.  Thereupon  complainant  filed  an 
amended  bill  stating  that  he  held  certain 
bonds  issqed  by  the  state  which  constituted 
a  lien  on  the  road.  Held,  that  the  amend- 
ment set  up  a  new  cause  of  action  and  that 
the  amended  bill  was,  therefore,  demurra- 
ble. Tappan  v.  Western  &*  A.  R.  Co.,  3 
Lea  {Tenn.)  106. 

Where  the  original  petition  alleges  that 
defendant  agreed  that  when  plaintiff  should 
ask  for  and  accept  employment  from  it  as  a 
locomotive  engineer  it  would  give  him  such 
employment  "for  whatever  length  of  time 
plaintiff  should  desire  to  retain  it,"  an 
amendment  which  charges  "that  defendant 
promised  to  give  plaintiff  employment  on 
its  road  for  the  period  and  term  of  the 
natural  life  of  plaintiff  "  sets  up  a  new  cause 
of  action.  East  Line  &*  R.  R.  R.  Co.  v. 
Scott,  41  Am.  iS»  Eng.  R.  Cas.  396,  75  Tex. 
84.  12  S.  W.  Rep.  99S- 

Plaintiff  attached  shares  of  stock  of  the 
A.  company  owned  by  the  B.  company. 
Later  he  filed  an  amended  bill  for  himself 
and  other  creditors  of  the  B.  company  aver- 
ring that  it  had  been  dissolved  by  the  sale  of 


its  franchises  under  execution,  and  that  first 
mortgage  bonds  of  the  A.  company  had  been 
assigned  to  the  B.  company.and  by  it  trans- 
ferred to  the  C,  company,  and  praying  that 
the  latter  company  be  made  a  party  and  re- 
quired to  disclose  what  amount  of  said 
bonds  it  held,  how  and  from  whom  they 
were  acquired,  and  to  maintain  or  relinquish 
its  claim  to  these  bonds.  Afterwards  those 
creditors  also  filed  a  petition  alleging  that 
the  C.  company  had  been  dissolved  by  rea- 
son of  its  insolvency  and  the  sale  of  its  char- 
ter rights  under  executions,  and  claiming 
that  the  assets  of  that  company  be  subjected 
to  the  payment  pro  rata  of  the  claims  of  all 
its  creditors.  Held,  on  demurrer,  (i)  that  the 
amended  bill  and  petition  make  a  new  case 
and  an  unallowable  departure  from  the  case 
made  by  the  original  bill,  and  should  be 
dismissed  ;  (2)  that  insolvency,  per  se,  does 
not  work  a  dissolution  of  a  corporation. 
Shenandoah  Valley  R.  Co,  v.  Griffith,  13 
Am.  &•  Eng.  R.  Cas,  120,  76  Va,  913. — Re- 
ferred TO  IN  Crumlish  v.  Shenandoah 
Valley  R.  Co.,  28  W.  Va.  623. 

149.  What  aineiMliiients  do  uot 
add  a  new  cause  of  action.— (1)  /« 
general. — A  fair  test  as  to  whether  a  pro- 
posed amendment  of  a  complaint  is  allow- 
able under  N.  Y.  Code  Civ.  Pro,  §  723,  re- 
lating to  amendments,  or  whether  it  sets  up 
a  new  cause  of  action,  is  to  be  determined 
by  whether  a  recovery  on  the  original  com- 
plaint would  bar  a  recovery  under  the 
amended  complaint.  Davis  v.  Nt-w  York, 
L.  E,  &^  W.  R.  Co.,  no  N.  Y.  646,  2  Silv. 
App.  94,  15  Civ,  Pro,  62,  17  N.  E,  Rep,  733, 
13  Cent,  Rep.  162,  17  N.  Y.  S.  R.  172;  af- 
firming 14  N.  Y.  S.  R.  I. 

The  rule  allowing  an  amendment  to 
pleadings  where  the  amendment  does  not 
change  the  cause  of  action  applied  in  an 
action  by  a  town  against  a  railway  for 
breach  of  contract  in  failing  to  erect  round 
houses,  etc.  Williamson  v.  Chicago,  R,  /.  &• 
P.  R.  Co.,  84  Iowa  583,  SI  A^.  W.  Rep.  60.— 
Quoting  Pittsburgh  Junction  R.  Co.  v. 
McCutcheon,  (Pa.)  7  Atl.  Rep.  146. 

(2)  Settifig  out  /acts  more  fully.*— Where 
a  declaration  alleges  that  the  employes  of  a 
railroad  violently,  unnecessarily,  and  im- 
properly blew  the  whistle  of  an  engine, 
thereby  frightening  plaintiff's  horse  and 
causing  him  to  run  away  and  injure  plain- 
tiff, it  may  be  amended  by  setting  out  more 

*  See  also/itfj^   152. 


that  first 
had  been 
I  it  trans- 
yring  that 
ty  and  re- 
of    said 
lom   they 
elinquish 
irds  those 
ging  that 
ed  by  rea- 
>f  its  char- 
claiming 
subjected 
ims  of  all 
) that  the 
1  new  case 
m  the  case 
should  be 
'ler  se,  does 
•rporation. 
Iriffitk,   13 
913.— Re- 
henandoah 

i  do  uot 

n.— (i)  In 
her  a  pro- 
nt  is  allow- 
>.  §  723,  re- 
ar it  sets  up 
determined 
iginal  com- 
under  the 
Nfw  York, 
546,  2  Silv. 
E.  Rep.  733. 
R.   172  ;  a/. 

ndment  to 
It  does  not 
plied  in  an 
railway  for 
erect  round 
rgo,  A'.  /.  <Sj 
.  J\'ep.  60. — 
R.  Co.  V. 
146. 

y.*— Where 
fiployes  of  a 
y,  and  im- 
an  engme, 
horse  and 
njure  plain- 
ig  out  more 


'• 


PLEADING,  149. 


1047 


fully  and  distinctly  the  circumstances  and 
facts  of  the  tort.  Such  an  amendment  does 
not  add  a  new  cause  of  action.  Georgia  R. 
Co.  V.  Thomas,  68  Ga.  744.  Gourley  v.  St, 
Louis  6-  S.  F.  R.  Co.,  35  Mo.  App.  87. 

An  amendment  to  a  petition  against  an 
express  company  for  negligently  delaying 
the  shipment  of  machinery,  in  which  it  is 
alleged  that  defendant's  agent  had  notice 
that  the  operation  of  plaintiff's  mill  would 
be  suspended  until  the  machinery  should  be 
returned,  does  not  state  a  new  cause  of  ac- 
tion, but  merely  perfects  the  cause  of  action 
already  definitely  stated.  Pacific  Exp.  Co. 
V.  Darnell,  (Tex.)  32  -4w.  <&*  Eng.  R.  Cas. 
543.  6  S.  IV.  Rep.  765. 

An  original  petition  charged  that  a  street 
had  been  obstructed,  and  that  the  work  of 
construction  was  not  done  in  a  careful  and 
skilful  manner,  obstructing  ingress  and 
egress  to  plaintiff's  premises.  Held,  that 
an  amendment  giving  details  of  such  So- 
struciion  was  not  a  new  cause  of  action. 
Missouri  Pac.  R.  Co.  v.  Speed,  3  Tex.  Civ. 
App.  454.  22  S.  W.  Rep.  527. 

(3)  As  affected  by  statute  of  limitations.* 
— The  original  complaint,  in  an  action  for 
personal  injuries,  alleged  that  it  was  caused 
by  the  negligence  of  defendant  in  failing  to 
light  its  station,  by  reason  of  which  plaintiff 
fell  from  the  station  platform.  One  year 
afterwards  a  new  count  was  filed  as  an 
amendment  alleging  that  the  construction 
of  the  platform  was  such  as  to  render  it  un- 
safe. Held,  that  this  did  not  introduce  a 
new  cause  of  action,  but  merely  varied  the 
allegations  as  to  the  matter  already  in  issue, 
and  was,  therefore,  not  barred  by  the  one- 
year  statute  of  limitations.  Alabama  G.  S. 
R.  Co,  V.  Arnold,  30  Am.  <S^  Eng.  R.  Cas. 
546,  80  Ala.  600,  2  So.  Rep.  337. 

Plaintiff  sued  for  personal  injuries  and 
charged  in  the  original  complaint  that  de- 
fendant's train  threw  a  cow  from  the  track 
and  against  plaintiff,  whereby  he  was  in- 
jured, and  that  this  was  caused  by  a  failure 
of  the  engineer  to  blow  a  whistle  or  ring  a 
bell  on  entering  the  corporate  limits  of  a 
town,  and  a  failure  to  use  all  means  in  his 
power  known  to  skilful  engineers  to  stop 
the  train.  An  amendment  alleged  that  the 
train  was  running  at  a  reckless  and  unusual 
rate  of  speed,  and  that  the  engineer  failed  to 
keep  a  proper  lookout  for  obstructions  on 
the  track.  Held,  that  this  did  not  introduce  a 


*  See  also  ^0jA  154,  155. 


new  cause  of  action,  nor  materially  vary  the 
original,  so  that  the  statute  of  limitations 
might  be  pleaded.  Alabama  G.  S.  R.  Co.  v. 
'  Chapman,  83  Ala.  453,3  So.  Rep.  8 1 3  •.former 
appeal  80  Ala.  615. 

Where  the  original  complaint  claims  dam- 
ages for  personal  injuries  alleged  to  have 
been  caused  by  defendant's  negligent  failure 
to  keep  its  street-railway  track  in  proper 
condition,  whereby  plaintiff  was  thrown 
from  a  vehicle  in  which  he  was  crossing  it, 
an  amended  count  setting  out  a  municipal 
ordinance  which  specifies  the  duties  re- 
quired of  street-railway  companies  in  keep- 
ing their  tracks  in  safe  and  proper  condi- 
tion does  not  introduce  a  new  cause  of 
action,  nor  is  the  statute  of  limitations 
available  ^s  a  defense  against  it.  Elyton 
Land  Co.  v.  Mingea,  43  Am.  cS^  Eng-  R-  Cas. 
309,  89  Ala.  S21,  7  So.  Rep.  666, 

In  an  action  for  negligence  resulting  in 
the  derailment  of  an  engine  and  the  killing 
of  plaintiff's  intestate, an  amendment,  plead- 
ed after  the  action  would  have  been  barred 
by  the  statute  of  limitations,  setting  up  ad- 
ditional grounds  of  negligence  contributing 
to  the  derailment  and  the  consequent  death, 
does  not  state  a  new  cause  of  action  ;  and  a 
demurrer  to  such  amendment  based  on  the 
statute  of  limitations  is  properly  overruled. 
Kuhns  V.  M  'isconsin,  I.  &*  N.  R.  Co.,  76  Iowa 
67,  40  N.  IV.  Rep,  92.— Applied  in  Smith 
V,  Missouri  Pac.  R.  Co.,  56  Fed.  Rep.  458. 

An  original  petition  stated  that  defend- 
ant, by  its  agents  and  servants,  recklessly, 
carelessly,  and  negligently  caused  one  of  its 
trains  to  strike,  wound,  and  kill  one  Moody. 
The  amended  petition,  filed  after  the  statu- 
tory time,  charged  that  by  the  negligence 
and  unskilfulness  of  defendant's  employes 
while  running  said  train  said  Moody  was 
struck  and  killed.  Held,  that  the  amend- 
ment set  up  no  new  cause  of  action.  Moody 
v.  Pacific  R,  Co.,  68  Mo.  470. 

An  amendment  which  differs  from  the 
•  original  petition  only  in  stating  more  fully 
the  result  of  injuries  caused  by  defendant 
does  not  set  up  such  a  new  cause  of  action 
as  to  let  the  statute  of  limitations  run  be- 
tween the  filing  of  the  two  petitions.  In- 
ternational &•  G.  N.  R.  Co.  V.  Irvine,  23 
Am.  &•  Eng.  R.  Cas.  518,  64  Tex.  529.— 
Quoted  in  Texas  &  P.  R.  Co.  v.  Davidson, 
68  Te.x.  370. 

(4)  Illustrations.  —  Where  the  action  is 
against  a  company  for  damages  to  property 
shipped,  the  declaration   is  amendable  by 


♦    \ 


'^^ 


m 


1048 


PLEADING,  160. 


I  f.if 


[•> 


if  as 


i>^j 


M 


'•  ;f^ 


1 1  i 


striking  out  an  allegation  that  it  was  shipped 
over  another  road  and  thence  over  defend- 
ant's, and  that  the  two  roads  connected  and 
were  managed  by  theother  company.  South- 
vjestern  R.  Co.  v.  Bryant,  67  Gn.  212. 

A  suit  against  a  company  for  damages 
from  tlie  careless  and  negligent  manner  of 
running  its  engine  may  be  amended  by  set- 
ting out  negligence  in  not  discovering  and 
remedying  defects  in  the  machinery  of  the 
engine  which  by  the  use  of  ordinary  care 
and  diligence  could  have  been  discovered 
aTid  remedied  so  as  to  prevent  the  accident. 
Such  amendment  does  not  add  a  new  cause 
of  action.  Ai4gusta  &*  S.  K.  Co.  v.  Dorsey, 
68  Gil.  228. 

Where  a  complaint  charges  that  plaintiff, 
a  passenger,  was  injured  by  the  negligence 
of  defendant  in  suddenly  starting  a  car,  an 
amendment  setting  up  that  the  injury  was 
due  to  the  "  wild,  scary,  untractable,  and 
skittish  "  disposition  of  the  horses  attached 
to  the  car  is  not  necessary  to  admit  evi- 
dence of  the  disposition  of  the  horses,  and 
is  not  objectionable  as  substituting  or  add- 
ing a  new  cause  of  action.  Dottg/ierty  v. 
Missouri  R.  Co.,  34  Am.  &*  Eng.  R.  Cas. 
488 ;  see  also  37  Am.  &•  Eng.  R.  Cas.  206, 
97  Mo.  647,  15  West.  Rep.  235,  8  S.  W.  Rep. 
900,  II  S.  W.Fep.  251. 

PlaintiiT  alleged  in  the  declaration  that 
his  wife  was  injured  by  the  negligence  of 
defendant.  An  amendment  alleging  other 
negligent  acts  of  the  defendant  at  the 
same  time  which  contributed  to  the  injury 
neither  changes  the  form  nor  the  cause  of 
action.    Mclntire  v.  Eastern  R.  Co.,  58  N, 

H.  137. 

Plaintiff  sued  to  enjoin  defendant  from 
maintaining  a  fence  in  front  of  a  hotel,  but 
his  complaint  simply  alleged  that  he  was  in 
possession  of  the  hotel.  On  the  trial  de- 
fendant moved  to  dismiss  the  complaint  on 
tlie  ground  that  it  did  not  show  plaintiff  to 
be  a  party  or  a  privy  to  certain  covenants  in 
a  deed  respecting  the  company's  right  of 
way,  and  its  duty  to  keep  an  opening  in  the 
fence.  Held,  that  it  was  proper  to  allow 
plaintiff  to  amend  by  setting  up  a  lease  of 
the  property  to  himself.  Avery  v.  New 
York  C.  &*  H.  R.  R.  Co.,  ■ii  Am.  &*  Eng.  R. 
Cas.  583,  106  JV.  V.  142,  12  N.  E.  Rep.  619, 
8  N.  v.  S.  R.  612,  7  Cent.  Rep.  795-— 
Quoted  in  Avery  r/.  New  York  C.  &  H.  R. 
R.  Co.,  17  N.  Y.  S.  R.  392;  Avery  v.  New 
York  C.  &  H.  R.  R.  Co..  26  N.  Y.  S.  R.  279. 

Where  an  en.y;meer  sues  to  recover  for  per- 


sonal injuries,  and  charges  in  the  original 
complaint  that  they  were  caused  by  a  failure 
of  ttie  defendant  to  furnish  him  a  suitable 
'  locomotive,  an  amendment  is  allowable 
which  avers  that  the  fuel  furnished  by  de- 
fendant for  use  in  the  engine  was  unfit  and 
dangerous,  by  reason  of  which,  and  the  de- 
fective condition  of  the  boiler,  the  explosion 
occurred.  Such  amendment  is  within  the 
discretion  of  the  trial  court,  and  is  not  re- 
viewable on  appeal  as  setting  up  a  new 
cause  of  action.  Davis  v.  New  York,  L.  E. 
&*  W.  R.  Co.,  no  N.  Y.  646,  2  Silv.  App. 
94,  15  Civ.  Pro.  62,  17  AT.  E.  Rep.  733,  13 
Cent.  Rep.  162,  17  A^.  Y.  3.  R.  172;  affirm- 
ing \\N.  Y.  S.R.  I. 

Where  an  original  petition  claims  d  m- 
ages  for  the  overflow  of  land,  an  amendn.ent 
that  claims  additional  damages  for  an  in- 
jury to  crops  merely  enlarges  the  scope  of 
the  recovery  prayed  for,  but  does  not  set  up 
a  new  cause  of  action.  International  &*  G. 
N.  R.  Co.  v.Pape.73  Tex.  501,11  S.  W. 
Rep.  526. 

Suit  was  filed  January  31,  1890,  to  recover 
for  an  injury  to  growing  crops  of  plaintiff 
resulting  from  the  negligent  construction 
of  the  roadbed  of  defendant  near  lands  cul- 
tivated by  plaintiff.  By  amendment  plain- 
tiff set  up  a  further  claim  for  damages  to  his 
crop  on  June  5,  1890.  Held,  no  error  in 
overruling  a  demurrer  to  this  amendment 
based  upon  the  ground  that  it  was  a  new 
cause  of  action.  Galveston,  H.  &*  S,  A.  R. 
Co.  V.  Borsky,  2  Tex.  Civ.  App.  <,^i,  n  .'. 
W.  Rep.  ion. 

Suit  was  commenced  against  a  comrat  / 
to  try  the  title  to  land,  to  recover  damig;? 
for  injuries  to  the  land  and  to  growing 
crops  thereon,  resulting  from  a  trespass 
while  the  railroad  was  being  constructed. 
By  an  amendment  the  question  of  title  was 
pretermitted,  and  the  action  continued  as 
to  the  question  of  damages.  Held,  that  this 
was  not  the  assertion  of  a  new  cause  of 
action  such  as  would  authorize  the  court  to 
adjudge  costs  to  that  date  against  plaintiff. 
Gttlf,  C.  <S-  S.  F.  R.  Co.  V.  Doran,  2  Tex. 
Unrep.  Cas.  442. 

150.  Aiiieiidinents  to  coiiforiii  to 
the  proof.— In  an  action  by  an  assignee 
of  a  debt  the  complaint  must  contain  an 
averment  of  the  assignment  to  plaintiff,  but 
where  such  an  allegation  has  been  omitted 
and  proof  of  the  assignment  is  made,  the 
court  may  allow  plaintiff  to  conform  the 
pleading  to  the  proof  after  a  verdict  for 


PLEADING,  151,  152. 


1049 


: 


plaintiff.  New  York,  L.  E.  5-  W.  A\  Co.  v. 
McHenry,  12  Am.  <S>»  Et^.  R.  Cas.  370,  17 
Eetf.  Rep.  414.  21  Blatchf.  (U.S.)  400. 

The  cause  of  action  alleged  being  the 
death  of  plaintiff's  husband  by  means  of  de- 
fendant's negligence,  the  allegations  in  the 
declaration  touching  the  specific  acts  of 
negligence  and  the  manner  of  causing  death 
may  be  varied  or  added  to  by  amendment 
during  the  trial  so  as  to  adapt  the  plead- 
ings to  the  evidence.  Harris  \.  Central  R. 
Co.,  30  Am.  &»  Eng.  R.  Cas.  581,  78  Ga. 
525.  3  S.  E.  Rep.  355. 

Where  the  proof  does  not  correspond  to 
the  allegations  of  the  petition,  plaintiff 
should  ask  leave  to  amend  during  the  trial. 
Leduke  v.  St.  Louis  &*  I.  M.  R.  Co.,  4  Mo. 
App.  485. 

An  amendment  of  a  petition  to  make  it 
conform  to  the  evidence  is  properly  allowed 
at  the  close  of  the  evidence.  So  where  the 
action  is  to  recover  for  frightening  plain- 
tiff's team  by  the  escape  of  steam,  an  aver- 
ment that  the  steam  was  let  off  by  the 
engineer  is  properly  amended  so  as  to 
conform  to  the  evidence  by  charging  that 
it  was  let  off  by  the  engineer  or  fireman. 
Andrews  v.  Mason  City  <S-  Ft.  D.  R.  Co.,  77 
Iowa  669,  42  A'.  W.  Rep.  513. 

In  case  against  a  common  carrier  the 
declaration  stated  the  contract  to  be  to 
carry  the  goods  from  New  York  to  Cleve- 
land, Ohio,  and  the  proof  was  that  defend- 
ant was  interested  only  in  part  of  the  line. 
An  amendment  to  conform  to  the  contract 
as  proved  was  allowed  on  the  trial,  it  ap- 
pearing that  defendant  had  not  been  taken 
by  surprise.  Jacobs  v.  Hooker,  i  Edm.  Sel. 
Cas.  {N.  Y.)  472. 

151.  Anieiidineiits  to  obviate  a 
variance. — Where  in  an  action  for  negli- 
gent injury  both  sides  have  without  objec- 
tion introduced  sucli  testimony  as  fully  ex- 
plains all  facts  bearing  on  the  manner  and 
cause  of  the  injury,  an  amendment  of  the 
declaration  should  be  allowed  as  a  matter  of 
course  if  objected  to  for  variance  so  long  as 
it  is  plain  that  no  one  could  have  been  sur- 
prised by  the  testimony.  Wallace  v.  De- 
troit  City  R.  Co.,  58  Mich.  231,  24  A'.  W. 
Rep.  870. 

152.  Aincndineut  as  to  descriptive 
matters  —  Setting  out  facts  more 
fully.* — A  complaint  may  be  amended  so 
as  to  describe  more  fully  the  nature  of  the 

*  See  also  ante,  14tt. 


negligence  imputed  to  defendant,  as  its  fail- 
ure to  keep  the  roadbed  in  a  reasonably 
safe  condition  at  the  point  of  the  accident. 
Elyton  Land  Co.  v.  Mitigea,  43  Am.  <S>»  Eng. 
R.  Cas.  309,  89  Ala.  521,  7  So.  Rep.  666. 
Alabama  G.  S.  R.  Co.  v.  Thomas,  89  Ala. 
294,  7  So.  Rep.  762. 

A  declaration  filed  by  a  track  hand  al- 
leging that  he  was  injured  by  a  fall  of 
earth  caused  by  the  negligence  of  the  com- 
pany, its  agents  and  servants,  is  amendable 
by  setting  out  the  particulars  constituting 
the  alleged  negligence,  and  also  by  averring 
that  plaintiff  himself  was  without  fault. 
Smith  V.  Georgia  R.  &*  B.  Co.,  87  Ga.  76^, 
13  S.  E.  Rep.  904.— Following  Ellison  v. 
Georgia  R.  Co.,  87  Ga.  691. 

The  declaration  as  thus  amended  sets  out 
a  cause  of  action,  although  it  does  not  dis- 
tinctly allege  that  plaintiff  was  ignorant  of 
the  danger  to  which  he  was  subjected. 
Stnith  V.  Georgia  R.  &>  B.  Co.,  87  Ga.  764, 
13  5.  E.  Rep.  904. 

Plaintiff  alleged  that  he  approached  a 
freight  train  with  a  cab  for  the  accommo- 
dation of  passengers  and  inquired  of  the 
engineer  if  the  train  would  stop  at  a  certain 
station,  and  was  told  that  it  would  stop 
there  or  near  there  ;  whereupon  he  entered 
the  car  "orderly  and  decently  and  with 
money  to  pay  his  passage,  and  thereby  be- 
came a  passenger  of  said  company  " ;  that 
thereupon  the  conductor  without  provoca- 
tion cursed  and  ill  treated  him,  and  struck 
him  in  the  face  with  a  lantern,  and  knocked 
him  out  of  the  car  door,  and  caused  him  to 
fall  on  the  track  and  to  receive  severe  in- 
juries. Held ;  (i)  that  the  action  was  not 
for  a  breach  of  contract  safely  to  carry 
plaintiff  as  a  passenger,  but  an  action  of  tort 
or  trespass  on  the  case,  and  it  was  error  for 
the  trial  court  to  hold  to  the  contrary ;  (2) 
that,  it  being  an  action  ex  delicto,  amend- 
ments describing  the  tort  more  accurately 
should  have  been  allowed.  Turnery.  West- 
em  &•  A.  R.  Co.,  6^  Ga.  827. 

It  being  apparent  from  the  original  dec- 
laration that  the  cause  of  action  was  the  ex- 
pulsion of  a  passenger  from  the  cars  because 
he  refused  to  pay  an  alleged  overcharge 
consisting  of  the  difference  between  the 
ticket  rate  and  the  conductor's  rate,  an 
amendment  showing  more  fully  why  a  ticket 
was  not  and  could  not  be  procured  was  al- 
lowable, and,  the  explanation  being  that 
there  was  no  agent  at  the  station  to  furnish 
a  ticket,  the  declaration  as  amended  was 


'^•fr^ 


1050 


PLEADING,  153-165. 


suflFicient.    Georgia  R.  fi-  B.  Co,  v,  Murden, 
83  Ga.  753,  10  5.  E.  Rep.  364. 

A  declaration  being  for  the  recovery  of 
overcharges  on  shipments  to  Dalton  only, 
the  same  should  be  amended  in  order  to  re- 
cover for  overcharges  paid  on  shipments  to 
Rome  also  if  both  sets  of  overcharges  be 
embraced  in  the  amount  sued  for.  The  al- 
legata and  probata  in  descriptive  matters 
ought  to  correspond.  Georgia  R,  &*  B,  Co. 
V.  Smith,  40  Am.  &*  Eng.  R,  Cas.  123,  83 
Ga.  626,  10  S.  E.  Rep.  235. 

In  an  action  by  tenants  in  common  to 
have  the  value  of  a  right  of  way  assessed, 
after  the  action  had  been  pending  for  sev- 
eral years  one  of  the  plaintiffs  entered  a 
retraxit,  and  the  court  allowed  the  other  to 
amend  his  description  of  the  land  so  as  to 
embrace  his  part  still  the  subject  of  suit. 
Held,  no  error.  Sinclair  v.  Western  N.  C. 
R.'Co.,  Ill  N.  Car.  507,  16  S.  E.  Rep.  336. 

Where  the  action  is  to  recover  for  an  in- 
jury to  crops  caused  by  flooding  laud,  and 
the  original  petition  describes  the  land  as 
"  part  of  the  Yandel  Ferris  place,"  an  amend- 
ment which  describes  it  as  "  parts  of  the 
Yandel  Ferris  and  Brice  places  "  does  not 
constitute  a  new  or  different  cause  of  action, 
especially  where  it  would  be  sufficient  with- 
out such  description.  Gulf,  C.  &*  S.  F.  R. 
Co.  V.  McGowan,  73  Tex.  355,  11  5.  W.  Rep. 

336. 

153.  Aiiiendnient  of  the  ad  dani- 
nuiii.— In  an  action  by  a  common  informer 
to  recover  a  penalty  against  a  railroad  for 
failing  to  ring  a  bell  or  sound  a  whistle  at  a 
crossing,  the  omission  in  the  declaration  to 
conclude  with  an  ad  damnum  is  not  cause 
for  demurrer.  Such  omission  may  be 
amended  at  any  time,  even  after  error 
brought.  Galena  &r*  C.  U.  R.  Co,  v.  Appleby, 
28  ///.  283. 

Where  the  action  is  only  to  recover  $140 
dainages.  and  a  verdict  is  returned  for  $150, 
it  is  error  to  allow  plaintiff  to  file  an  amend- 
ment to  his  complaint  to  make  the  damages 
demanded  correspond  to  the  verdict.  Cox 
V.  Burlington  <S>»  IV.  R.  Co.,  77  /owa  478, 
4.2  N.   IV.  Rep.  429. 

Plaintiff  brought  suit  for  damages  in  the 
sum  of  $500.  After  the  conclusion  of  the 
argument  of  counsel  for  plaintiff  leave  was 
obtained  to  amend  the  declaration  and  bill 
of  particulars  so  as  to  claim  $750.  De- 
fendant objected  on  the  ground  that  it  was 
an  amendment  of  a  material  allegation  of 
the  pleading,  and  that  it  operated  as  a  sur- 


prise. The  jury  found  for  plaintiff  in  the 
sum  of  $250.  Held,  that  no  injustice  was 
done  defendant  by  the  leave  to  amend,  tiic 
verdict  being  for  an  amount  less  than  that 
originally  laid  in  the  declaration.  Currie  v. 
Natchez,  J.  6m  C.  R.  Co.,  20  Am.  &•  Eng.  R. 
Cas.  303,  61  Miss.  725. 

Where  a  suit  is  instituted  against  a  street 
railway,  before  a  justice  of  the  peace,  to  re- 
cover damages  to  a  horse  and  buggy  caused 
by  colliding  with  a  car,  and  the  horse  dies 
pending  an  appeal  to  the  county  court,  it  is 
proper  to  allow  the  pleadings  to  be  amended 
so  as  to  claim  damages  for  the  full  value  of 
the  horse.  North  Side  St.  R.  Co.  v.  Want. 
4  Tex.  App.  {Civ.  Cas.)  237,  15  5.  W.  Rep. 
40. 

A  consignee  is  entitled  to  a  reasonable 
time  for  the  examination  of  a  consignment 
before  receiving  it,  but  if,  having  received 
it,  he  discovers  it  to  have  been  damaged  in 
transit,  it  is  his  duty  to  give  notice,  and 
proceed  according  to  the  rules  of  com- 
mercial usage- to  ascertain  the  injury;  but 
while  his  failure  in  this  respect  will  not 
preclude  him  from  recovering  damages,  he 
should  be  held  to  strict  proof,  and  should 
not  be  permitted  to  amend  his  libel  to  in- 
clude damages  discovered  after  the  institu- 
tion of  the  suit  which  by  diligence  might 
have  been  discovered  before.  Williams  v. 
Steamship  Columbia,  i   Wash.  T.  95. 

154.  Aiiieiidinent  setting:  up  the 
statute  of  limitations.*— It  is  error  to 
refuse  defendant  privilege  to  amend  its  plea 
of  the  general  issue  by  filing  a  plea  of  the 
statute  of  limitations,  though  the  jury  had 
been  charged  with  the  case  and  had  retired 
to  their  room,  and  though  plaintiff's  coun- 
sel stated  be  would  be  surprised  by  the 
amendment;  that  his  client  had  been  sent 
home  before  he  knew  of  the  offer  to  amend 
the  plea,  and  that  were  his  client  present  he 
could  testify  to  such  facts  as,  in  his  opinion, 
would  take  the  case  out  of  the  statute.  Sa- 
vannah, F.  &»  W.  R.  Co.  V.  Watson,  86  Ga. 
795.  13  5.  £.  Rep.  156. 

155.  Amendineiits  barred  by  lim- 
itation.f — In  an  action  seeking  to  charge 
a  common  carrier  with  the  loss  of  goods,  a 
count  may  be  added  by  amendment  charg- 
ing it  as  a  warehouseman ;  but  if  the 
amendment  is  not  filed  until  after  the  lapse 
of  one  year  from  the  accrual  of  the  cause  of 

*  See  also  ante,  149. 

f  See  also  <iM/^  149,  154, 


ti   '■• 


PLEADING,  156,  157. 


1051 


f  in  the 
tice  was 
end, the 
hun  that 
'urrie  v, 
Eng.  R. 

t  a  street 
ce,  to  re- 
\y  caused 
orse  dies 
3urt,  it  is 
amended 

value  of 
V.  Want, 

W.  Rep. 

easonable 
isignmeiit 
;  received 
maged  in 
nice,  and 
i  of  coni- 
ijury;  but 
:  will  not 
images,  he 
nd  should 
ibel  to  in- 
!he  institu- 
nce  might 
Villiams  v. 

95- 

*  lip  the 

is  error  to 
:nd  its  plea 
>lea  of  the 
e  jury  had 
liad  retired 
tiff's  conn- 
ed by  the 
been  sent 
r  to  amend 
present  he 
lis  opinion, 
itute.  Sa- 
tson,  86  Ga. 

il  by  lim- 

j  to  charge 
af  goods,  a 
ent  charg- 
but  if  the 
if  the  lapse 
he  cause  of 


i. 


action  (Ala.  Code,  §  2619),  the  statute  of 
limitations  is  available  as  a  defense.  Annis- 
ton  &•  A.  R.  Co.  V.  Ledbetter,  92  Ahi.  326,  9 
So.  Rep,  73.  People  ex  rel.  v.  Kalainasoo  Cir- 
cuit fudge,  35  Mich.  227,  15  Am,  Ry,  Rep. 
349.— Following  People  ex  rel.  v.  Neway- 
go Circuit  ludge,  27  Mich.  138. 

A  damage  suit  lor  injury  to  a  store  and 
its  contents  was  filed  within  two  years  after 
the  alleged  injury.  Held,  that  an  amend- 
ment more  specifically  describing  the  orop- 
erty,  but  setting  up  no  new  cause  of  .  tioii. 
could  be  filed  after  two  years  had  tiapsed, 
Ron/land  v.  Murphy,  66  Te.r.  534,  i  5.  \V. 
Rep.  658. 

A  tramway  company  was  sued  for  injuries 
to  plaiiitifT  through  its  failure  to  maintain  a 
certain  road  in  a  safe  and  proper  condition. 
Six  months  after  the  close  of  the  pleadings 
defendant  applied  for  leave  to  amend  its 
defense  by  setting  up  a  contract  under  the 
Tramways  Act  1870,  §  29,  by  which  the  liabil- 
ity to  maintain  the  road  was  shifted  frjni  it 
to  the  vestry,  the  road  authority  of  the  dis- 
trict. Since  the  close  of  the  pleadings  the 
statutory  period  within  which  plaintiff  could 
have  sued  the  vestry  had  elapsed.  Held, 
that  defendant  ought  not  to  be  allowed  to 
amend  because  plaintiff  could  not  be  placed 
in  the  same  position  as  if  defendant  had 
pleaded  correctly  in  the  first  instance. 
Steward  v.  North  Metropolitan  Tramways 
Co.,  xd  Q.  B.  D.  ^^d;  dismissing  appeal  from 
16  Q.  B.  D.  178. — Doubting  Howitt  v. 
Nottingham  Tramways  Co.,  12  Q.  B.  D.  16. 
Quoting  Tildesley  v.  Harper,  10  Ch.  D. 

393- 

15G.  Aniendincnts  in  stock-kill- 
ing cases. — Where  a  statutory  action  is 
commenced  before  a  justice  of  the  peace 
against  a  company  for  killing  stock  and  the 
company  appeals  to  court,  it  is  error  to  al- 
low plaintiff  to  amend  after  the  appeal  by 
adding  a  count  for  damages  to  his  grass 
land  by  fire.  Union  Pac.  R.  Co.  v.  Stern- 
berg, 13  Colo.  141,  21  Pac.  Rep.  1021. 

Under  Kan.  Comp.  Laws  1874,  p.  784,  in 
an  action  before  a  justice  of  the  peace  to  re- 
cover damages  (or  killing  a  colt,  plaintiff  re- 
covered judgment,  and  defendant  appealed 
to  the  district  court,  where  plaintiff,  with 
full  notice  to  defendant,  amended  his  bill  of 
particulars  so  as  to  make  it  allege  that 
plaintiff,  more  than  thirty  days  before  the 
commencement  of  his  action,  demanded  of 
defendant  the  full  value  of  the  colt,  and  that 
defendant  refused  to  pay  anything  therefor. 


Held,  that  the  court  did  not  err  in  permit- 
ting the  amendment.  Missouri  Pac.  R.  Co. 
V.  Piper,  26  Kan.  58, 

Where  a  petition  for  Killing  plaintiff's 
cattle  states  a  good  common  law  cause  of 
action,  it  may  be  amended  by  changing  the 
form  of  action  to  one  under  a  special  statute. 
Roberts  v.  Wabash,  St.  I..  vS-  P.  R.  Co.,  {Mo.) 
25  Am.  »S«  Kn^.  R.  Cas.  298,  3  West.  Rep. 
783. 

An  original  complaintcharged  that  plain- 
tiff's cows  strayed  upon  defendant's  track, 
and  that  the  company  so  negligently  man- 
aged its  cars  that  two  cows  were  killed  and 
two  others  injured.  An  amendment  al- 
leged that  the  cows  strayed  upon  the  track 
throu<;h  a  fence  which  the  company  was 
bound  to  maintain,  and  that  four  cows  were 
killed  and  three  injured.  Held,  that  this 
was  but  an  amplification  of  the  original 
complaint,  and  did  not  change  the  cause  of 
action.  Becker  v.  New  York,  L.  E.  &^  W. 
R.  Co.,  31  N.  V.  S.  R.  750,  10  N.  V.  Supp, 
413,  17  Hun  585. 

157.  Grantingp  amendments  at  the 
trial. — In  an  action  on  the  case  to  recover 
damages  to  plaintiff's  property  occasioned 
by  the  erection  and  maintenance  of  a  bridge, 
its  piers  and  protections,  by  a  railroad  com- 
pany, the  court  permitted  plaintiff  after  the 
evidence  was  closed  and  the  argument  com- 
menced to  amend  his  declaration  by  adding 
a  count  in  trespass,  and  refused  a  motion  of 
defendant  for  a  continuance  on  that  ground, 
there  being  no  affidavit  in  support  of  the  last 
motion.  Held,  that  the  amendment  was 
properly  allowed,  and  that  the  motion  for 
a  continuance  was  properly  overruled  for 
the  want  of  an  affidavit,  as  required  by  the 
statute.  Chicago  &•  P.  R.  Co.  v.  Stein,  75 
///.  41.— Distinguishing  People  v.  St. 
Louis,  10  III.  351 ;  Chicago  v.  LaRin,  49  111. 
172;  Middleton  v.  Pritchard,  4  111.  510; 
Canal  Trustees  z/.  Haven,  11  III.  554. 

A  complaint  charged  that  by  the  negli- 
gent act  of  defendant  plaintiff  was  griev- 
ously bruised,  hurt,  and  injured,  and  that 
his  collar-bone  was  broken,  and  shoulder  dis- 
located. Held:  (i)  that  under  such  general 
allegations  of  injury  plaintiff  was  entitled  to 
prove  any  and  all  injuries  which  he  received, 
and  which  were  the  natural  consequence  of 
the  wrongful  act  of  defendant,  and  that  on 
the  trial  it  was  not  error  to  allow  plaintiff  to 
insert  another  specific  allegation  that  his 
shoulder-blade  was  broken,  and  to  refuse 
defendant  a  continuance  of  the  cause  upon 


1053 


PLEADI'NG,  158-100. 


'  '*  'I 


;L-: 


I'  9 


affidavit  made  on  the  ground  of  surprise 
occasioned  by  sucii  amendment;  the  spe- 
cific averments  of  injury  did  not  limit  and 
restrict  tlie  proof  of  plaintiff  to  the  injuries 
specified  ;  (2)  that  where  the  law  does  not 
imply  the  damage  as  the  natural  and  neces- 
sary consequence  of  the  wrongful  act  the 
special  damage  should  be  set  out  with  par- 
ticularity. 0/ito  6-  M.  A".  Co.  V.  Se/fiy,  47 
/«(/.  47 r,  8  A»t.  Ky.  Rep.  177. 

It  is  too  late, after  the  jury  has  been  sworn 
and  some  of  the  witnesses  have  testified,  to 
file  an  amended  petition  alleging  that  the 
injury  complained  of  was  caused  by  the 
negligence  of  those  in  charge  of  the  "  south- 
bound accommodation  train,"  the  issue  hav- 
ing been  made  up  and  partly  tried  as  to  the 
ncglii^fnceof  those  in  charge  of  the  "south- 
boimd  express  train."  Eskridge  v.  Cincin- 
nati, N.  O.  &•  T.  P.  K.  Co.,  42  Am.  «&-  Eng. 
A'.  Cas.  176,  89  Ky.  367,  12  S.  W.  Kep.  580. 

Where  plaintiff  inadvertently  omits  to  in- 
sert an  allegation  of  incorporation,  but  the 
existence  of  the  corporation  is  not  the  sub- 
stance or  gist  of  the  action,  and  its  name  is 
such  as  to  import  a  corporation,  and  defend- 
ant appears  as  such,  files  an  answer  verified 
by  its  agent,  such  allegation  being  merely 
formal,  it  is  not  error,  after  the  evidence  for 
plaintiff  had  been  submitted,  to  allow  plain- 
tiff to  amend  by  inserting  such  incorporation, 
nor  in  refusing  to  allow  defendant  to  file  a 
new  answer  raising  different  issues,  when 
there  is  no  claim  of  surprise,  inadvertence, 
or  mistake.  N'or  is  it  error  to  refuse  the 
removal  of  the  cause  at  such  time  to  the 
United  States  court.  Wild  v.  Oregon  S.  L. 
&>  U.  N.  R.  Co.,  21   Or  eg.  159.  27  Pac.  Rep. 

954- 

1«"»8. niter  verilict.— A  declaration 

against  a  carrier  alleged  that  it  received 
sheep  10  transport  to  "  Elwood,  Kan.,"  and 
tiie  proof  showed  an  agreement  to  transport 
to  •' EUiiiwood,  Kansas."  Held,  no  error lo 
allow  an  amendment  by  striking  out  "  El- 
wood "  and  inserting  "  Ellinwood,"  even 
after  overruling  a  motion  for  a  new  trial. 
McCoUotn  V.  Indianapolis  &*  St.  L.  R.  Co., 
94  ///.  534. 

The  widow  and  children  of  a  railroad  em- 
ploye sued  in  Pennsylvania  for  the  death  of 
the  employe,  which  occurred  in  West  Vir- 
ginia. After  verdict  and  before  judgment 
plaintiffs  moved  to  amend  by  making  the 
administratrix  plaintiff,  as  required  by  the 
West  Virginia  statute.  Held,  that  under 
the  Pa.   Act  of  1852,  allowing  amendments 


at  any  stage  of  the  proceedings,  the  amend- 
ment should  have  been  allowed.  Patton  v. 
Pittsburgh,  C.  St*  St.  L.  R.  Co.,  1 1  Am.  &* 
Eng.  R.  Cas.  658,  96  Pa.  St.  169. 

150. after  revcrNnI  011  npiienl.— 

A  complaint  charging  a  company  with  neg- 
ligently constructing  its  roadbed  across  a 
stream  so  as  to  injure  plaintiff's  lands  was 
deemed  sufficient  on  circuit,  but  on  appeal 
was  held  to  be  defective.  Thereafter  plain- 
tiff properly  obtained  leave  to  amend  his 
complaint  within  twenty  days  as  he  might 
be  advised,  defendant  being  given  twenty 
days  after  service  to  answer.  Wallace  v. 
Columbia  &*  G.  R.  Co.,  37  So.  Car.  335. 

At  a  former  trial  of  an  action  the  com- 
plaint was  based  upon  an  alleged  contract  of 
defendant  to  collect,  through  its  agent  at 
X.,  a  bill  against  A.  of  goods  consigned  to 
the  care  of  said  agent,  and  to  transport  and 
deliver  to  plaintiff  at  Y.  the  money  so  col- 
lected. After  a  judgment  for  plaintiff  had 
been  reversed  he  was  allowed  to  amend  his 
complaint  so  as  to  allege  a  cause  of  ac- 
tion as  for  money  had  and  received.  }Ield, 
no  abuse  of  discretion.  Wells  v.  American 
Exp.  Co.,  49  Wis.  224,  5  A^.  W.  Rep.  333. 

100.  Eft'ect  of  aiiieiidiiiciitH,  gen- 
erally.— An  allegation  that  plaintiff  could 
not  secure  his  safety  in  any  other  way  than 
by  urging  his  horse  forward  to  pass  over  a 
crossing  before  the  arrival  of  a  train  is  not 
materially  different  in  a  legal  sense  from  an 
allegation  that  he  believed  it  impossible  to 
control  his  horse.  Grows  v.  Maine  C.  R, 
Co.,  69  Me.  412. 

A  declaration  which  contains  two  causes 
of  action  in  one  count  is  amendable  so  as  to 
set  them  out  in  separate  counts,  if  plaintiff 
intends  to  rely  upon  both ;  and  the  allowailce 
of  the  amendment  is  a  decision  that  he  in- 
tends to  rely  on  both.  Daley  v.  Boston  &* 
A.  R.  Co.,  33  Am.  &*  Eng.  R.  Cas.  298,  147 
Mass.  10  •  16  N.  E.  Rep.  690,  6  N.  Eng. 
Rep.  349. 

Objections  to  an  answer  to  a  bill  as  it 
stood  before  amendment  cannot  be  made 
after  amendment,  unless  defendant,  after  be- 
ing duly  called  upon  to  file  his  answer  to  the 
bill  as  amended,  or  voluntarily  waiving  such 
call,  chooses  to  let  it  stand  as  the  answer  to 
the  amended  bill.  Angel  v.  Pennsylvania 
R.  Co.,  yj  N.  J.  Eq.  92. 

An  amendment  which  was  filed  to  a  plead- 
ing before  the  adoption  of  ^he  present  rules 
by  the  supreme  court  did  not  have  the  effect 
to  withdraw  the   amended  pleading,  or  to 


i^ 


PLEADING,  101-160. 


10fi3 


. 


suppress  or  supplant  any  of  its  allegations, 
except  in  so  far  as  the  amendment  effected 
tliat  result  by  legal  construction.  HjusIoh 
&*  r.  C.  R.  Co.  V.  Shixfer,  6  Am.  &-  Eiig.  V. 
Las.  421.  54  Tex.  641.  — Following  Sutto.; 
V.  Pane,  4  Tex.  142. 

101.  Iletroactive  eflFect.— Under  ine 
Florida  Code  an  amendment  of  a  cosnplaint 
relates  back  to  the  commencement  of  the 
action.  State  v.  Jacksonville,  P.  Sf  M,  K, 
Co.  15  Fla.  201. 

Where  a  receiver  is  asked  for  the  same 
properly  in  two  courts,  the  one  that  first 
takes  jurisdiction  of  the  property  and  the 
parties  is  entitled  to  retain  it,  and.  the  fact 
that  a  demurrer  is  sustained  to  the  com- 
plaint with  leave  to  amend  does  not  affect  the 
question  of  Jurisdiction,  as  all  amendments 
germane  to  the  bill  relate  back  to  the  time 
when  the  bill  was  filed  and  are  considered 
as  a  part  of  it.  Gay  lord  v.  Ft.  Wayne,  M,  &* 
C.  A'.  Co.,  6  Biss.  (I/.  S.)  286. 

102.  Makiug  the  uniciKliiieiit— 
Time  witliiu  which,  etc.— Where  an 
order  giving  leave  to  amend  has  been 
granted  without  limiting  the  time,  it  should 
be  made  within  fourteen  days  from  the  date 
of  the  order.  Where  circumstances  pre- 
vent this  being  done,  and  no  order  dismiss- 
ing the  bill  in  the  alternative  of  it  not  being 
done  is  embodied  in  the  order  granting 
leave  to  amend,  the  referee  held  it  to  be 
competent  to  the  court  to  grant  further 
time  for  amending,  even  on  an  application 
made  after  the  fourteen  days  had  expired, 
if  a  proper  case  is  made  out  for  it.  A/c 
Murray  v.  Grand  Trunk  Ji.  Co.,  3  C/tan. 
Chamb.  {U.  C.)  306. 

10:t.  Notice  of  niiieiidiuent  to  ad- 
verse party.— It  is  error  to  allow  a  plead- 
ing to  be  amended  in  a  material  respect  and 
then  to  render  judgment  in  the  absence  of 
the  adverse  party  without  notice  to  him, 
Leavenworth,  L.  <S>»  G.  R.  Co.  v.  Van  Riper, 
\()  Kan.  317.— Followed  in  Kansas  City, 
L.  &  S.  W.  R.  Co.  V.  Richolson,  31  Kan.  28. 

104.  Time  to  answer  amended 
pleading;. — In  an  action  against  a  com- 
pany for  loss  and  injury  to  property,  after 
the  issues  had  been  made  up  and  the  case 
ready  for  trial  it  was  discovered  that  the 
files  were  mislaid.  The  court  thereupon 
perm'»ted  the  filing  of  a  substituted  peti- 
tion instanter,  and  required  the  company 
to  answer  and  go  to  trial  at  once.  Held, 
that  as  the  substituted  petition  presented  a 
number  of  new  issues,  a  reasonable  time 


should  have  been  given  defendant  to  answer 
and  prepare  for  trial.  Fremont,  E.  &'  M, 
V.  R.  Co.  V.  Marley,  25  Neb.  138,  40  A'.  W. 
Rep.  948. 

105.  Presumption  in  favor  of  va- 
lidity of  amendment.— When  an  amend- 
ment to  a  complaint  is  necessary,  and  the 
record  shows  that  the  amendment  was  al- 
lowed by  the  court,  although  tlie  record 
does  not  disclose  that  it  was  actually  made, 
and  the  trial  of  the  cause  is  proceeded 
with  without  further  objections,  it  is  not  a 
violent  presumption  that  the  complaint  was 
amended  to  show  a  good  cause  of  action. 
Kelsey  v.  Chicago  &*  N.  W.  R.  Co.,  43  Am. 
<S-  Eng.  R.  Cas.  43,  i  S.  Dak.  80,  45  A^.  IV. 
Rep.  204. 

100.  Supplemental  pleadings.— 
Where  a  suit  has  been  brought  by  holders 
of  common  stock  to  compel  organization 
by  the  directors,  and  thereafter  another  bill 
to  the  same  effect  is  filed  by  substantially 
the  same  parties,  alleging  in  addition  that 
defendant  company  was  about  to  buy  an- 
other road,  and  praying  that  the  contem- 
plated purchase  be  enjoined  as  ultra  vires, 
to  which  bill  the  road  about  to  be  purchased 
is  improperly  made  a  party,  if  the  right  to 
the  relief  demanded  in  the  original  bill  is 
established,  the  second  bill  is  more  properly 
considered  as  a  supplemental  bill,  and  al- 
though filed  without  leave  of  the  court,  as 
required  by  rule  54,  should  be  allowed  to 
stand  as  to  the  original  defendants.  Mack- 
intosh V.  Flint  &-  P.  M.  R.  Co.,  36  Am.  <S- 
Eng.  R.  Cas.  340,  34  Fed.  Rep.  582. 

After  the  commencement  of  an  action 
against  a  railroad  company  upon  a  contract 
it  appeared  that  it  and  other  companies 
were  merged  in  a  new  company,  the  latter 
having  assumed  all  of  the  contracts,  liabili- 
ties, and  obligations  of  the  original  compa- 
nies. Held,  that  an  order  allowing  defend- 
ant to  file  a'supplemental  complaint  bring- 
ing in  the  new  company  as  defendant  was 
properly  granted.  Proiity  v.  Lake  Shore 
&•  M.  S.  R.  Co.,  85  AT.  V.  272, 

Plaintiff  and  his  horses  were  both  injured 
at  the  same  sime,  but  he  brought  two  sepa- 
rate suits,  one  for  the  injury  to  himself, 
and  the  other  for  the  injury  to  the  horses. 
The  action  for  injuries  to  himself  resulteH  in 
a  judgment  in  his  favor,  which  defendant 
paid,  and  then  moved  for  an  order  for  leave  to 
serve  an  amended  or  supplemental  answer  in 
the  other  action,  setting  up  the  judgment  as 
a  bar  to  a  further  recoverv.    Held,  that  the 


lY' 


It 


nil 


si"'. 


R»n. 


1054 


PLEADING,  167-160. 


judgment  was  not  within  N.  Y.  Code  Civ. 
Pro.  §  544,  and  that  the  amendment  was 
properly  denied.  McAndrtw  v.  Lake  Shore 
<S-  M.  S.  A'.  Co.,  23  /■,'.  y.  Supp.  1074,  70 
Hun  46.  53  A'.  Y.  S.  R.  436. 

YI.  BEMIDIEB  FOB  ERROR!  AKD  DEF20TS. 
WAIVER. 

167.  Strikliiij;  out  pIcuclliiKH,  gen- 
erally. —  Wlierc  a  company  institutes  a 
condemnation  proceeding  and  its  articles  of 
incorporation  are  not  set  out,  an  answer 
which  alleges  that  such  articles  arc  defect- 
ive and  do  not  authorize  the  taking  of  land 
is  deficient,  unless  it  specifics  the  particu- 
hirs  in  wliich  such  articles  are  deficient,  and 
sliould  be.  stricken  out.  Denver  R.  L,  &•  C. 
Co.  V.  Union  Pac.  R.  Co.,  34  Fed.  Rep.  386. 
—Applying  Chicago  &  E.  I.  R.  Co.  v. 
Wiltse,  116  III.  449,  6  N.  E.  Rep.  49. 

Where  an  answer  merely  sets  up  that  the 
complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action,  it  is  in  effect 
but  a  demurrer,  and  should  be  stricken  out. 
Denver  R.  L,  6-  C.  Co.  v.  Union  Pac.  R. 
Co.,  34  Fed.  Rep.  386. 

Plaintiff  in  one  count  sued  defendant 
for  constructing  side  tracks  in  front  of  his 
premises,  for  improperly  using  such  tracks, 
for  casting  snow  upon  his  premises,  and 
for  constructing  drains  and  ditches,  and 
depositing  dead  animals  in  front  of  his 
premises.  Held,  that  the  court  properly 
ordered  him  to  plead  his  separate  causes  of 
action  in  separate  counts,  and  that  when  he 
filed  a  substitute  without  attempting  to 
comply  with  the  order  tl)e  court  properly 
sustained  a  motion  to  strike  it  from  the 
files.  O'Conner  v.  Chicago,  R.  I.  <S-  P.  R, 
Co.,  75  Iowa  617,  34  N.  W.  Rep.  795. 

Plaintiffs  filed  a  complaint  in  four  counts, 
in  two  of  which  they  claimed  damages,  un- 
der the  general  railroad  act,  from  defendant 
for  failing  to  restore  a  highway.  In  the 
other  two  counts  they  alleged  substantially 
the  same  facts,  but  claimed  treble  damages 
under  another  statute.  Held,  that  they 
could  not  recover  under  both  statutes  for 
the  same  act,  and  as  there  was  doubt  as 
to  which  remedy  was  applicable,  the  court 
would  not  compel  them  to  elect,  but  set 
aside  the  whole  complaint  that  the  caae 
might  be  stated  anew.  Sipperly  v.  Troy  &* 
B.  R.  Co.,  9  How.  Pr.  {N.  Y.)  83. 

168.  frivolous     pleadingns*  — 

Where  a  passenger  sues  for  personal  inju- 


ries, an  answer  which  merely  alleges  "  upon 
information  and  belief"  that  plaintiff  was 
not  bruised  or  injured  by  the  collision  as 
alleged,  and  which  denies  generally  the 
se 'cral  allegations  of  the  complaint,  and 
denies  that  plaintiff  has  suffered  damages, 
is  not  good,  and  it  is  proper  to  give  judg- 
ment on  the  answer  as  frivolous.  Powers 
V.  Rome,  IV.  &^  O.  R.  Co.,  3  Hun  {N.  Y.) 
285.  sT.&'C.  449- 

160.  particular  allcgatiuiiH  or 

(IcfeiiHCN,  generally. — In  case  to  recover 
for  personal  injuries  caused  by  negligence, 
a  count  is  not  demurrable  because  the  aver- 
ment of  one  of  the  cumulative  acts  of  negli- 
gence is  defective.  The  remedy  is  by  a 
request  for  instructions  to  the  jury,  or,  pos- 
sibly, by  motion  to  strike  out  the  defective 
part  of  the  count.  Louisville  &*  iV.  R.  Co. 
V.  Hall,  48  Am.  &*  Eng.  R.  Cas.  170,  91 
Ala.  112,  8  So.  Rep.  371. 

Conn.  Practice  Act  forbids  a  party  to  set 
out  in  his  pleadings  the  evidence  by  which 
the  material  facts  are  to  be  proved ;  and  it 
is,  therefore,  proper  to  expunge  from  a 
plaintiff's  application  mere  statements  of 
evidential  facts  tending  to  show  his  finan- 
cial condition.  New  York  &•  N.  E.  R.  Co.'s 
Appeal,  55  Am.&^ Eng.  R.  Cas.  38,  62  Conn. 
S27,  26  All.  Rep.  122.  Godfrey  v.  Ohio  <J- 
M.  R.  Co.,  37  Am.  <S»  Efig.  R.  Cas.  8,  ii6 
fnd.  30,  15  IVest.  Rep.  533,  18  A^.  .£.  Rep.  61. 

Where  plaintiff  sues  for  breach  of  a  con- 
tract for  failing  to  leave  cars  for  the  pur- 
pose of  receiving  and  taking  away  freight, 
an  answer  which  merely  sets  up  that  plain- 
tiff had  formerly  permitted  cars  to  stand  on 
the  side  track  so  near  the  main  track  that 
collisions  had  taken  place,  and  that  there 
was  danger  of  others,  and  that  plaintiff  was 
unwilling  to  become  responsible  for  the  in- 
juries, is  properly  stricken  out.  Amsden  v. 
Dubuque  &*  S.  C.  R.  Co.,  13  Iowa  132. 

An  answer  alleging  that  the  injury  re- 
sulted from  the  carelessness  of  plaintiff  is 
properly  stricken  out  on  motion,  as  evidence 
of  the  fact  pleaded  is  admissible  under 
the  general  denial.  Indianapolis  &*  C.  R. 
Co.  v.  Rutherford,  29  Ind.  82. 

Where  a  defendant  wishes  to  avoid  a 
charge  of  negligence  by  showing  that  the 
injury  sued  for  was  caused  by  the  act  of 
God,  it  is  competent  to  do  so  under  the 
genei  ;>.l  plea ;  so  where  both  the  general 
p!ca  and  a  special  plea  that  the  injury  was 
( ;;used  by  an  unprecedented  storm  are  filed, 
it  is  proper  to  strike  out  the  latter.    ElM 


PLEADING,  170-172. 


1055 


"upon 
iff  was 

sion  as 
ly  the 
It,  and 
images, 
judg- 
Pmvers 
{N.  J'.) 


V.  St,  Louis,  K.  C.  4-  N,  R.  Co.,  12  Am.  «*- 
£■«(,'.  /\'.  Cas.  183,  76  Mo.  518. 

Certain  parties  who  were  engaged  in  man- 
ufacturing leased  a  railroad  company  a 
riglit  of  way  for  a  side  tracic.  Afterwards  a 
suit  in  assumpsit  was  instituted  against  tiie 
railroad  on  this  lease.  The  damages  claimed 
were  for  an  unpaid  portion  of  the  consider- 
ation money  and  for  appropriating  land  not 
included  in  the  lease.  The  declaration  was 
afterwards  amended  so  as  to  include  a  claim 
for  damages  for  failing  to  construct  the  side 
track  as  agreed.  At  the  trial  the  court 
struck  out  the  amendment  and  withdrew  it 
entirely,  with  all  evidence  to  support  it, 
from  the  jury.  Another  action  was  pending 
between  the  same  parties  at  the  time  in 
trespass.  /^t-W,  that  while  the  issue  made 
under  the  amendment  might  have  been  a 
bar  to  a  recovery  in  the  action  of  trespass, 
still  the  company  could  not  complain  of  the 
action  of  the  court  in  striking  it  out.  Mid- 
dletcnvn  Furniture  Mf^.  Co.  v.  Philadelphia 
&'A'.  A\  Co.,  145  Pa.  St.    187,  22  Atl.  Hep. 

747. 

If  an  allegation  of  breach  of  duty  by  a 
carrier  is  inserted  in  plaintiff's  statement  in 
an  action  of  assumpsit,  in  addition  to  the 
allegation  of  breach  of  contract,  the  court 
will,  on  a  rule  for  a  more  specific  statement, 
direct  the  allegation  of  breach  of  duty  to  be 
stricken  out.  Hunters.  Erie &*W,  Tramp. 
Co.,  I  Pa.  Dist.  538. 

1 70.  as  Irrelevant.— Where  the 

action  is  to  recover  for  death  caused  by 
cars  being  thrown  from  a  track  through  al- 
leged defects  in  the  track,  a  charge  that  the 
cars  at  different  times  prior  to  the  accident 
had  been  thrown  from  the  track  at  the  same 
place  by  reason  of  defects  of  which  defend- 
ant had  knowledge  is  proper  as  tending  to 
show  negligence,  and  it  is  error  to  strike 
out  the  charge  as  irrelevant  and  immaterial. 
Wolz  V.  Dry  Dock,  E.  B.  <S-  B.  R.  Co.,  36 
N.  Y.  S.  R.  328,  59  Hun  618, 13  N.  Y.  Supp. 
129. 

In  an  action  for  damages  to  abutting 
property  from  the  construction  and  opera- 
tion of  a  railroad  in  a  street,  an  answer 
which  is,  in  effect,  a  plea  of  license  from  the 
city  to  construct  and  operate  the  railroad  in 
the  street  cannot  be  stricken  out  on  the 
ground  of  irrelevancy  or  immateriality. 
Hatch  V.  Tacotna,  O.  &*  G.  H.  R.  Co.,  6 
Wash.  I.  32  Pac.  Rep.  1063.— Followed 
IN  Silsby  V.  Tacoma,  O.  &  G.  H.  R.  Co.,  6 
Wash.  295. 


171.  —  nH  iinp<^rtlnont.  —  A  bill 
prayed  that  respondent  might  be  enjoined 
from  erectii.g  a  railroad  bridge  across  a 
river  upon  the  ground  that  it  would  injure 
the  orator's  bridge  by  infringing  the  vested 
rights  conferred  by  his  charter.  The  answer 
stated  that  railway  communications  were 
not  discovered  and  brought  into  use  until 
long  after  the  date  of  the  orator's  charter. 
Held,  that  this  statement  was  not  im- 
pertinent, because  in  order  to  determine 
the  rights  of  the  parties  it  might  become 
necessary  to  inquire  whether  the  orator's 
bridge  was  intended  and  calculated  to  an- 
swer the  purpose  of  a  railway  bridge,  and 
whether  the  latter  was  so  different  from  the 
former  that  it  could  not  be  considered  as 
violating  the  exclusive  privileges  conferred 
by  the  orator's  charter.  Tucker  v.  Cheshire 
R.  Co.,  21  N.  H.  29.— Quoted  in  Lake  v. 
Virginia  &  T.  R.  Co.,  7  Ncv.  294.  Re- 
viewed IN  Prop'rs  of  Bridges  V.  Hoboken 
L.  &  I.  Co.,  13  N.  J.  Eq.  503. 

173.  When  motion  to  make  more 
(leflnitc,  certain,  or  Hpecific  is  the 
proper  remedy.— Where,  in  an  action 
for  damages  resulting  from  negligence  of 
defendant,  the  complaint  contains  a  general 
averment  of  such  negligence,  objection  that 
such  averment  is  uncertain  cannot  be  made 
by  demurrer,  but  only  by  a  motion  to  make 
more  specific.  Pennsylvania  Co.  v.  Sed- 
wick,  59  Ind.  336.  Ohio  <S-  M.  R.  Co.  v. 
Collar n,  5  Am.  &•  Eng.  R.  Cas.  554,  73  Ind' 
261,  38  Am.  Rep.  134.  Cleveland,  C,  C.  6- 
/.  R.  Co.  V.  PVynant,  100  fnd.  160.  Pitts- 
burg,  C.  &*  St.  L.  R.  Co.  v.  Hixon,  32  Am. 
&>  Eng.  R.  Cas.  374,  no  Ind.  225,  11  N.  E. 
Rep.  2*85.  Ohio  &•  M.  R.  Co.  v.  H'alker,  32 
Am.  &*  Eng.  R.  Cas.  121,  113  Ind.  196,  15 
A'^.  E.  Rep.  234, 12  West.  Rep.  731.  OhioS^ 
M.  R.  Co.  V.  Hecht,  34  Am.  6-  Eng.  R.  Cas. 
447,  115  Ind.  443,  15  West.  Rep.  122,  17  N. 
E.  Rep.  297.  Pittsburgh,  C.  &>  St.  L.  R.  Co. 
V.  Kitley,  37  Am.  &-  Eng.  R.  Cas.  511,  118 
Ind.  1 52,  20  A^.  E.  Rep.  727.  Wild  v.  Ore- 
gon S.  L.  &*  U.  N.  R.  Co.,  21  Or  eg.  159,  27 
Pac.  Rep.  954. 

The  letters  "  C.  O.  D.,"  used  in  a  com- 
plaint against  an  express  company,  have 
acquired  in  the  commerce  of  the  country 
such  a  fixed  and  determinate  meaning  that 
courts  and  juries,  from  their  general  in- 
formation, will  readily  understand  what 
they  mean.  If  such  a  complaint  be  defect- 
ive for  want  of  an  averment  of  their  mean- 
ing, the  defect  is  one  to  be  reached  by  a 


1056 


PLEADING,  173. 


in 


w 


f.     ) 


motion  to  make  more  specific  ;  a  motion  in 
arrest  of  judgment  will  not  reach  such  de- 
fect. United  States  Exp.  Co.  v.  Kee/er,  59 
Ind.  263. 

If  the  petition  fails  to  show  whether  the 
road  obstructed  was  a  public  or  private 
road,  this  defect  should  have  been  brought 
to  the  attention  of  the  court  by  a  motion  to 
make  the  petition  more  definite  and  cer- 
tain, and  not  by  an  objection  to  the  admis- 
sion of  any  testimony. .  The  failure  to  file 
the  proper  motion  must  be  treated  as  a 
waiver  of  the  defect.  Autenrieth  v.  St. 
Louis  <&'  S.  F.  R.  Co.,  36  Mo.  App.  254. 

173.  When  motion  to  make  more 
definite  or  specific  will  be, granted. 
— A  complaint  for  a  personal  injury  alleged 
that  plaintiff,  without  his  fault  or  negli- 
gence, was  injured  by  "  being  on  one  of  said 
defendant's  trains,  the  servants  of  the  de- 
fendant, while  said  train  was  in  motion,  or- 
dered and  compelled  him  to  jump  from  said 
train,  the  coaches  of  which  passed  over  his 
lower  limbs,"  whereby,  etc.;  "that  said  In- 
juries were  committed  and  perpetrated  upon 
him  by  the  carelessness  and  negligence  of 
the  defendant's  servants,"  etc.  Held,  that 
the  refusal  of  a  motion  to  make  more  spe- 
cific, by  showing  by  what  right  the  plaintiff 
was  on  the  train,  and  also  more  particularly 
the  negligence  of  defendant's  servants,  was 
error.  Pennsylvania  Co.  v.  Dean,  i8  Am. 
&>  Eng.  R.  Cas.  188,  92  /«</.  459.— Distin- 
guished IN  Wabash  R.  Co.  v.  Savage,  28 
Am.  &  Eng.  R.  Cas.  288,  no  Ind.  156. 

Where  a  complaint  by  an  employe  charges 
that  plaintifT  was  ordered  to  perform  certain 
hazardous  work  with  which  he  was  unac- 
quainted, by  "his  superior  in  rank  in  the 
service"  of  such  defendant,  whereby,  etc., 
the  same  is  not  sufficiently  specific,  and  a 
motion  to  require  him  to  make  his  com- 
plaint more  certain,  so  as  to  show  the  posi- 
tion in  defendant's  service  and  the  relation 
to  both  defendant  and  plaintiff  occupied  by 
the  persons  alleged  to  have  given  such 
orders  to  him,  should  be  sustained.  Pitts- 
burgh, C.  &^  St.  L.  R.  Co.  V.  Adams,  23  Am, 
&*  Eng.  R.  Cas.  408,  105  Ind.  151,  5  A^.  £•. 
K'.p.  187. 

On  February  6,  1867,  the  electors  of  a 
county  duly  authorized  their  commissioners 
to  subscribe  to  the  stock  of  a  railroad  and 
to  issue  bonds  in  payment.  Several  condi- 
tions were  prescribed,  among  them  one  that 
the  cor.jpany  should  complete  and  equip 
twenty-four  miles  of  road  before  January  i, 


1868.  All  the  conditions  were  complied 
with  except  that  the  twenty-four  miles  were 
not  completed  for  some  time  after  the  time 
fixed.  In  July,  1869,  the  commissioners  is- 
sued the  bonds  and  received  the  stock.  In 
January,  1870,  the  term  of  office  of  the  then 
county  commissioners  expired.  The  coupons 
of  these  bonds  falling  due  in  January,  1870 
and  1871,  were  duly  paid.  No  action  or  pro- 
ceedings were  had  by  the  county  to  question 
the  validity  of  the  bonds  until  August,  1871, 
when  this  action  was  brought  against  the 
company  to  recover  the  value  of  the  bonds. 
Held,  that  if  the  commissioners  acted  in 
good  faith,  honestly,  and  in  obedience  to 
their  unbiased  judgment  as  to  the  best  in- 
terests of  the  county  the  action  cannot  be 
maintained ;  and  if  it  be  claimed  that  they 
fraudulently  and  corruptly  combined  and 
conspired  with  the  company  to  defraud  the 
county  the  petition  should  state  the  facts 
showing  the  terms,  nature,  and  extent  of  the 
combination  and  conspiracy,  and  not  simply 
allege  in  general  terms  that  there  was  such 
a  combination  and  conspiracy ;  and  that  as 
the  latter  was  the  only  allegation  a  motion 
to  make  the  petition  more  definite  and  cer- 
tain ought  to  have  been  sustained.  Leaven- 
worth, L.  &*  G.  R.  Co.  V.  Douglas  County 
Com'rs,  18  Kan.  169,  15  Am.  Ry.  Rep.  256. 

If  a  petition  contains  but  a  general  allega- 
tion of  negligence,  it  is  subject  to  a  motion 
requiring  it  to  be  made  more  definite  and 
certain,  and  it  is  error  for  the  court  to  over- 
rule a  proper  motion  presented  for  that 
purpose.  Atchison,  T.  <S-  S.  F,  R.  Co.  v. 
O'Neill,  49  Kan.  367,  30  Pac.  Rep.  470. 

The  right  of  the  trial  court  to 'order  the 
pleadings  to  be  made  more  specific  is  very 
largely  a  matter  of  discretion.  So  it  was 
held  that  the  court  did  not  exceed  its 
powers,  in  an  action  by  a  brakeman  to  re- 
cover for  injuries  received  by  his  train  being 
thrown  from  the  track,  in  ordering  the  com- 
plaint to  be  made  more  specific,  where  it  al- 
leged that  the  injuries  were  due  to  the  con- 
duct of  the  company  "  in  failing,  neglecting, 
and  omitting  to  use  due  care  and  diligence 
to  repair  said  track  at  said  point  after  the 
same  was  defective,  and  said  repairs  were 
necessary,  to  its  knowledge,"  and  in  per- 
mitting ties  to  remain  that  were  "  defective, 
rotten,  and  unsafe,"  and  "  in  not  properly 
fastening  the  rails."  .Madden  v.  Minneapolis 
<S»  St.  L.  R.  Co.,  30  Minn.  453.— FOLLOWED 
IN  Lehnertz  v.  Minneapolis  &  St.  L.  R.  Co., 
15  Am.  &  Eng.  R.  Cas.  370,  31  Minn.  219. 


complied 
niles  were 
■  the  time 
ioners  is- 
tocit.  In 
[  the  then 
e coupons 
jary,  1870 
on  or  pro- 
)  question 
just,  1 87 1, 
jainst  the 
he  bonds. 

acted  in 
:dience  to 
e  best  in- 
cannot  be 

that  they 
lined  and 
efraud  the 
;  the  facts 
tent  of  the 
[lot  simply 
i  was  such 
nd  that  as 
1  a  motion 
te  and  cer- 
I.  Leaven- 
!as  County 
Rep.  256. 
eral  allega- 
o  a  motion 
efinite  and 
irt  to  over- 
id  for  that 
•.  R.  Co.  V. 
.470. 

> 'order  the 
:ific  is  very 
So  it  was 
exceed  its 
man  to  re- 
train being 
ig  thecom- 
where  it  al- 
to the  con- 
neglecting, 
d  diligence 
nt  after  the 
2 pairs  were 
nd  in  per- 
"  defective, 
ot  properly 
Minneapolis 
Followed 
t.  L.  R.  Co., 
^inn.  219. 


PLEADING,  174. 


1057 


■ 


Where  the  action  is  to  recover  damages 
>.>i  failing  to  furnish  shipping  facilities  for 
railroad  ties,  a  charge  that  the  company  de- 
manded exorbitant  freight  rates  and  refused 
to  furnish  such  facilities  in  order  that  it 
might  take  all  of  the  profit  of  the  business 
to  itself  is  too  indefinite.  Spurlock  v.  Mis- 
souri Pac.  R.  Co.,  93  Mo.  530,  12  West.  Rep. 
347.  6  S.  IV.  Rep.  349.     , 

Where  the  action  is  to  recover  damages 
for  a  discrimination  in  freight  rates,  a  com- 
plaint which  merely  alleges  that  the  ser- 
vices rendered  to  plaintiffs  and  those  ren- 
dered to  other  shippers  were  the  same,  and 
were  rendered  upon  like  conditions  and 
similar  circumstances,  is  but  a  deduction 
deri'vd  from  a  comparison  of  the  different 
shipments,  and  should  be  amended  by  set- 
ting out  the  facts  attending  the  different 
shipments.  Laiigtion  v.  .Vfw  Vork,  L.  E. 
&^  W.  R.  Co..  39  vV.  ]'.  S.  R.  471,  60  Hun 
584,  15  iV.  r.  Supfi.  255:27  A6l>.  A.  Cas. 
166. 

174.  When  the  motion  shouhl  be 
denied. — Where  plaintiff  sues  to  recover 
damages  by  reason  of  the  negligence  of  de- 
fendant in  suddenly  acceleratmg  the  speed 
of  a  train  while  he  was  alighting  from  it,  a 
motion  to  require  plaintiff,  to  make  the 
complaint  more  specific  by  stating  what 
agent  or  employe  of  d'^'  'dant  caused  the 
motion  of  the  train  to  be  accelerated  and 
what  acts  of  such  agent  caused  the  acceler- 
ated motion  is  properly  refused,  such  facts 
being  peculiarly  within  defendant's  knowl- 
edge, and  the  pleading  being  construed  in 
view  of  the  general  knowledge  of  the  man- 
ner of  ru  ining  trains.  Louisville  &*  N.  R. 
Co.  v.  Crunk,  41  Am.  &^  Eng.  R.  Cas.  158, 
119  Ind.  542,  21  A^.  E.  Rep.  31,  —  DISTIN- 
GUISHED IN  Coleman  v.  Georgia  R.  &  B. 
Co.,  84  Ga.  I.  Overruled  in  Little  Rock 
&  Ft,  S.  R.  Co.  V.  Lawton,  55  Ark.  428. 

A  complaint  alleged  that  defendant  was  a 
common  carrier,  and  at  a  certain  date  plain- 
tiff took  passage  and  was  admitted  as  a  pas- 
senger in  one  of  defendant's  cars  to  be  car- 
ried from  Medora,  in  Jackson  county,  to  his 
home  in  Sparksville,  both  of  said  .stations 
being  on  said  defendant's  road.  Held,  that 
a  motion  to  make  the  complaint  more  spe- 
cific in  alleging  how  and  in  what  manner  he 
was  admitted  as  a  passenger,  and  whether 
he  purchased  a  ticket  or  was  prevented 
therefrom,  and,  if  so,  how,  or  whether  he 
paid  or  tendered  his  fare  from  the  point  of 
entrance  to  the  point  of  destination,  is  prop- 
6  D.  R.  D.— 67 


erly  overruled.  The  facts  stated  made  him 
a  passenger.  Ohio  &*  M.  R.  Co.  v.  Craucher, 
132  Ind.  275.  31  A'.  E.  Rep.  941. 

In  an  action  by  an  employe  for  injuries 
sustained  while  coupling  cars  it  was  averred 
that  the  engine  used  was  defective,  and 
could  not  be  handled  or  controlled  so  as  to 
be  safe,  such  difficulty  in  handling  and  man- 
aging being  in  part  caused  by  the  leaking  of 
the  throttle,  and  in  part  by  defects  unknown 
to  plaintiff  and  which  he  is  unable  to  more 
particularly  describe  or  specify,  and  that 
said  defects  combined  were  such  that  when 
said  engine  was  reversed  and  caused  to 
move  backward  it  would  often  give  a  sud- 
den spring  or  start,  and  would  move  with  a 
sudden  rush  or  spring.  It  was  also  alleged 
tbat  defendant  knowingly  employed  an  in- 
competent engineer  to  operate  said  engme, 
that  defendant  had  long  known  of  the  dan- 
gerous and  defective  condition  of  the  en- 
gine. Held,  that  a  motion  to  make  the 
complaint  more  specific  in  that  plaintiff 
should  be  required  to  state  the  length  of 
time  the  engine  had  been  defective  and  the 
length  of  time  the  engineer  had  been  negli- 
gsnt,  the  exact  defects  in  the  engine,  the 
particulars  which  constituted  the  incom- 
petency of  the  engineer,  was  properly  over- 
ruled.' Wabash  5-«  W.  R.  Co.  v.  Morgan. 
132  Ind.  430,  31  A'.  E.  Rep,  661,  32  A^.  £". 
Rep.  85. 

In  an  action  for  damages  against  a  rail- 
way company  the  petition  alleged  that  "  de- 
fendant, by  its  agents  and  servants,  did  run 
*  ♦  *  one  of  their  engines  in  such  a  grossly 
negligent  and  careless  manner  that  the  same 
ran  against  and  over"  plaintiff's  cow  and 
killed  her.  Held,  that  the  petition  was  not 
vulnerable  to  a  motion  for  a  more  specific 
statement.  Grinde  v.  Milwaukee  &•  St.  P. 
R.  Co.,  42  Iowa  376. 

Plaintiff  sued  for  injuries  received  in 
coupling  cars,  and  alleged  that  the  draw 
bars  of  the  coupling  appliances  of  the  two 
cars  "  were  not  properly  fastened,  and  were 
loose,  defective,  and  insufficient,  and  on  ac- 
count thereof  would  not  and  did  not  remain: 
in  their  proper  places  when  such  cars  were 
driven  together,  as  was  usual  and  necessary 
in  making  said  couplings,"  in  consequence  of 
which  he  was  injured.  The  company  moved 
to  strike  out  the  words  "defective  and  insuffi- 
cient "  as  irrelevant  and  redundant,  or  that,, 
as  to  them,  the  complaint  be  made  more 
definite  and  certain.  Held,  that  the  motion 
was   properly  refused.     Tierney  v.   Minne- 


l|, 


1058 


PLEADING,  175. 


■  ^      Li 


apolh  <S-  St.  L.  R.  G?. ,  1 5  Am.  &•  Eitg.  R.  Cas. 
290,  31  Minn.  234,  17  N.  W.  Rep.  377. 

A  complaint  alleged  that  plaintiff  was  in- 
jured tlirough  the  negligence  of  defendant 
in  leaving  unguarded  in  its  yard  a  recepta- 
cle for  boiling  water,  into  which  plaintiff 
fell  "  while  he  was  lawfully  upon  the  prem- 
ises by  invitation  of  defendant,  having  been 
invited  there  by  said  defendant  to  obtain 
employment."  Held,  that  a  motion  to  make 
the  pleading  more  definite  and  certain  by 
stating  liow  and  when  such  invitation  was 
extended,  and  the  name  and  occupation  of 
the  person  or  agent  of  defendant  who  ex- 
tt-nded  it,  was  properly  denied.  Lee  v. 
Minneapolis  &^  St.  L.  R.  Co.,  34  Minn.  225, 
25  N.  IV.  Rep.  399.— Followed  in  Todd 
V.  Minneapolis  &  St.  L.  R.  Co.,  37  Minn. 
358.  35  N.  W.  Rep.  5. 

The  indefiniteness  or  uncertainty  to  be 
relieved  against  on  motion  is  only  such  as 
appears  on  the  face  of  the  pleading  itself, 
and  not  an  uncertainty  arising  from  extrinsic 
facts  as  to  what  particular  evidence  may  be 
produced  to  support  it.  Todd  v.  Minneapo- 
lis &*  St.  L.  R.  Co.,  37  Minn.  358,  35  N.  IV. 
Rep.  5.— Following  Lee  v.  Minneapolis  & 
St.  L.  R.  Co.,  34  Minn.  225,  25  N.  W.  Rep. 

399- 

A  complaint  need  not  state  the  names  of 
officers  or  agents  of  the  defendant  who  did 
the  act  constituting  plaintiff's  cause  of  ac- 
tion, but  such  acts  may  be  pleaded  gen- 
erally as  done  by  defendant.  Todd  v.  Min- 
neapolis &*  St.  L.  k.  Co.,  37  Minn.  358,  35 
JV.  IV.  Rep.  5. 

A  petition  charged  several  defendants 
jointly  with  operating  a  railroad  construc- 
tion train  in  a  negligent  and  careless  man- 
ner by  negligently  running  it  at  a  high  rate 
of  speed  through  a  herd  of  cattle  which 
were  near  the  track,  whereby  a  part  of  the 
cattle  were  run  over,  and  the  train  derailed 
and  thrown  from  the  track,  by  which  plain- 
tiff, who  was  riding  thereon,  was  injured. 
Held,  that  the  district  court  did  not  err  in 
overruling  a  motion  to  require  a  more  spe- 
cific statement  in  the  petition  by  showing 
which  one  of  defendants  was  operating  the 
road,  if  either  one,  or,  if  all,  whether  jointly 
or  severally,  which  one  employed  the  train- 
men, and  which  was  charged  with  the  al- 
leged negligence.  Chicago,  B.  &*  Q,  R.  Co. 
V.  Clark,  38  Am.  Sf  Eng.  R.  Cas.  192,  26 
Neb.  645,  42  N.  U^.  Rep.  703. 

Where  the  action  is  to  vacate  a  charter 
to  build  an  underground  railroad,  and  both 


the  original  company  and  its  vendee  are 
made  defendants,  a  motion  by  the  vendee 
to  require  the  plaintiff  to  amend  by  describ- 
ing more  definitely  the  tunnels  to  be  con- 
structed is  properly  overruled,  as  the  maps 
and  profiles  filed  by  the  original  company 
sufficiently  describe  such  tunnels.  People 
V.  New  York  C.  U.  R.  Co.,  39  N.  V.  S.  R. 
571,  15  A^.   V.  Supp.  245,  60  Hun  583,  mem. 

In  an  action  for  killing  plaintiff's  intestate 
at  a  highway  crossing,  the  complaint  stated 
that  the  highway  approached  the  track 
from  the  north  through  a  deep  cut,  so  that 
a  person  approaching  from  that  direction 
was  unable,  for  a  long  distance  before  reach- 
ing the  track,  to  see  a  train  coming  from 
the  west;  that  defendant  was  negligently 
running  a  train  from  the  west  at  the  rate  of 
fifty  miles  an  hour  without  giving  a  signal ; 
that  the  track  was  so  negligently  con- 
structed as  to  lower  the  grade  of  the  high- 
way and  create  a  high  bank  on  the  north 
side  of  the  track,  which  obstructed  the  view 
of  the  track  and  rendered  the  highway  dan- 
gerous. Held,  that  the  court  properly  re- 
fused a  motion  that  the  complaint  be  made 
more  definite  and  certain  by  specifying  for 
what  distance  north  of  the  track  the  view 
of  the  train  coming  from  the  west  was  ob- 
scured to  a  person  approaching  on  the 
highway  from  the  north,  and  also  by  speci- 
fying the  direction  from  which  the  intestate 
was  approaching  the  track.  Schneider  v. 
Wisconsin  C.  Co.,  81  IVis.  356,  51  A'.  IV. 
Rep.  582. 

175.  Waiver  of  defects  by  failing 
to  demur. — An  objection  that  there  is  a 
defect  of  parties  defendant,  in  that  the  di- 
rectors who  were  charged  with  fraud  as 
being  interested  in  the  sale  sought  to  be 
annulled  should  have  been  made  parties 
defendant,  is  waived  by  a  failure  to  raise  it 
by  Demurrer  or  answer.  Smith  v.  Dorn,  96 
C^l-  73.  30  P^'^-  ^'P-  1024. 

Where  a  declaration  against  a  common 
carrier  is  susceptible  of  being  construed 
equally  as  an  action  upon  contract  or  an 
action  of  tort  based  upon  an  alleged  viola* 
tion  of  a  public  duty  by  the  carrier,  and  the 
same  is  not  demurred  to,  plaintiff  at  the 
trial  may,  at  his  option,  elect  to  treat  it  as 
either  species  of  action.  Central  R.  Co.  v. 
Pickett,  87  Ga.  734,  13  5.  £".  Rep.  750. 

Where  there  is  no  special  demurrer  to  a 
declaration,  it  is  not  error  to  refuse  to  strike 
from  the  latter  certain  words,  as  not  rele- 
vant either  in  matter  of  form  or  substance. 


PLEADING,  176. 


1059 


:ndee  are 
le  vendee 
y  describ- 
o  be  con- 

the  maps 

company 
s.     People 

.  Y.  S.  R. 

583,  mem. 
s  intestate 
lint  stated 

the  track 
ut,  so  that 

direction 
[ore  reach- 
iiing  from 
legligently 
the  rate  of 
g  a  signal ; 
ently  con- 

the  high- 

the  nortli 
id  the  view 

hway  dan- 
roperly  re- 
nt be  made 
;cifying  for 
k  the  view 
:st  was  ob- 
ng  on  the 
50  by  speci- 
he  intestate 
k/tneider  v. 
,  51   A'.  W. 

by  failing 

.t  there  is  a 
that  the  di- 
:h  fraud  as 
}ught  to  be 
lade  parties 
e  to  raise  it 
V.  Dorn,  96 

;  a  common 
g  construed 
ntract  or  an 
lleged  viola- 
rier,  and  the 
intifl  at  the 
to  treat  it  as 
ral  R.  Co.  v. 

p.  750- 

emurrer  to  a 

fuse  to  strike 

as  not  rele- 

}r  substance. 


\^ 


the  motion  to  strike  being  made  orally  at 
the  trial.  Augusta  R.  Co.  v.  Glover,  58  Am. 
<S-  Eng.  R.  Cas.  269,  92  Ga.  132,  18  S.  E. 
Rip.  406. 

Where  the  action  is  to  recover  damages 
for  injuries  both  to  plaintifT's  person  and  to 
his  property  sustained  by  colliding  with 
defendant's  car,  while  driving  on  the  street, 
damages  both  for  injuries  to  his  person  and 
to  his  property  may  be  recovered  under  a 
single  count,  properly  declaring  on  both, 
especially  where  there  is  no  demurrer,  and 
no  objection  to  the  introduction  of  evidence 
as  to  both  injuries.  Chicago  IV.  D.  R.  Co. 
V.  Itigraham,  41  Am.  &*  Eng.  R.  Cas.  243, 
131  ///.  659,  23  N.  E.  Rep.  350,— Not  fol- 
lowing Brunsden  v.  Humphrey,  14  Q.  B. 
D.  141. 

If  a  declaration  in  an  action  for  negli- 
gence is  defective  in  failing  to  aver  due  care 
on  the  part  of  plaintiff,  defendant  should 
demur,  or  call  the  attention  of  the  court  to 
it  in  some  other  way,  before  final  judgment, 
so  as  to  afTord  an  opportunity  to  obviate 
the  defect  by  amendment.  Such  defects  are 
cured  by  the  verdict.  Chicago,  R.  I.  &•  P. 
R.  Co.  V.  C/oug/t,  134  ///.  586,  25  N.  E.  Rep. 
664,  29  .A^.  E.  Rep.  184;  affirming  33  ///. 
App.  129. 

Where  not  demurred  to,  a  declaration  for 
negligent  injury  must  be  held  sufficient, 
after  verdict,  if  it  states  a  cause  of  action 
though  it  does  not  specify  the  negligence, 
and  especially  if  it  counts  upon  other  neg- 
ligence which  it  does  set  forth.  So  held, 
where  a  workman  sued  his  employer  for  an 
injury  suffered  from  the  use  of  defective  ma- 
chinery and  did  not  point  out  the  defect, 
but  also  averred  as  negligence  that  he  had 
been  set  at  work  that  was  outside  the  scope 
of  his  employment.  Droderick  v.  Detroit 
Union  R.  S.&'  D.  Co.,  56  Mich.  261,  22  N. 
W.  Rep.  802.  56  Avi.  Rep.  382. 

Under  Oreg.  Code  each  cause  of  action 
must  be  separately  stated,  with  the  relief 
sought,  so  as'  to  be  intelligently  distin- 
guished, yet  where  the  corporate  existence  of 
a  defendant  and  the  ownership  of  its  road  is 
not  only  made  certain  by  reference,  but  the 
answer  supplies  the  defect  in  each  count,  in 
the  absence  of  a  demurrer  specifying  the 
objection,  after  the  evidence  is  submitted, 
the  objection  comes  too  late.  Eaton  v.  Ore- 
gon R.  &>  N.  Co.,  43  Am.  &•  Eng.  R.  Cas. 
57,  19  Oreg.  391,  24  Pac.  Rep.  415. 

Plaintiff  sued  for  an  injury  received  while 
attempting  to  get  on  a  passenger-car,  and 


the  complaint,  after  describing  the  manner 
of  the  injury,  charged  that  the  conductdr 
acted  negligently,  and  further  charged  that 
the  injury  was  caused  by  his  wilfulness  and 
gross  negligence.  Held,  that  an  objection 
that  the  v-diplaint  was  bad  for  duplicity 
could  only  be  taken  advantage  of  by  de- 
murrer, and  not  by  a  motion  at  the  trial  for 
a  nonsuit.  Winterson  v.  Eighth  Ave.  R. 
Co.,  2  Hilt.  (N.  v.)  389. 

176.  Effect  of  pleading  to  cure 
prior  errors.— When  the  objection  of  a 
misjoinder  of  two  causes  of  actibn,  one  for 
a  personal  injury  and  the  other  for  a  sub- 
sequent injury  to  property,  is  properly  raised 
by  demurrer,  a  defendant  does  not  waive 
the  objection  by  answering  and  going  to 
trial  after  the  demurrer  has  been  overruled. 
Thelin  v.  Stewart,  100  Cal.  372,  i^Pac.  Rep. 
861. 

Where  a  defendant  pleads  a  tender,  he 
admits  that  plaintiff  has  a  valid  cause  of 
action  for  the  amount  tendered,  and  he 
cannot  afterwards  claim,  in  a  motion  in 
arrest  of  judgment,  that  plaintiff's  petition 
does  not  contain  the  necessary  averments 
to  entitle  him  to  recover  in  any  sum.  Wil- 
son  V.  Chicago,  M.  &•  St.  P.  R.  Co.,  68  /oTva 
673,  27  iV.  IV.  Rep.  916. 

In  plaintiff's  first  amended  petition  she 
alleged  that  the  deceased  made  the  coupling 
by  order  of  his  superiors.  This  allegation 
was  not  dSnied  in  the  answer  to  such  peti- 
tion. In  plaintiff's  second  amended  petition 
she  specifically  alleged  that  the  deceased 
was  ordered  to  make  the  coupling  by  the 
conductor,  and  this  allegation  was  posi- 
tively denied.  Held,  that  the  denial  to  the 
second  amended  petition  cured  the  omission 
in  the  answer  to  the  first  amended  petition, 
and  put  the  burden  of  proving  that  deceased 
acted  under  the  order  of  the  conductor 
upon  the  plaintiff.  Brice  v.  Louisville  &• 
N.  R.  Co.,  (Ky.)  38  Am.  &•  Eng.  R.  Cas.  38, 
9  5.  IV.  Rep.  288. 

A  defect  in  a  complaint  in  failing  to  al- 
lege that  the  person  whose  death  is  sued 
for  was  a  passenger  on  defendant's  train  is 
waived  by  an  issue  presented  by  defendant 
that  he  was  not  a  passenger  and  accepted  by 
plaintiff.  Wagner  v.  Missouri  Pac.  R.  Co.,  97 
Mo.  512,  3  L.  R.  A.  156.  10  5.  W.  Rep.  486. 

Although  plaintiff  charges  in  his  petition 
that  the  accident  occurred  at  a  street  cross- 
ing, yet  if  defendant  alleges  that  it  occurred 
while  he  was  working  on  a  trestle,  plain- 
tiff may  recover  if  he  is  injured  by  defend- 


1060 


PLEADING,  177-179. 


ant's  negligence  at  the  latter  place.  Gulf, 
C.  (S-  S.  F.  R.  Co.  V.  Anderson,  42  Am. 
6-  Eiig.  R.  Cas.  160.  76  Tex.  244,  135.  IV. 
Rep.  196. 

177.  Waiver  by  failing  to  object.— 
When,  in  a  suit  to  enjoin  a  railroad  com- 
pany from  occupying  plaintiff's  premises, 
plaintiff  Improperly  joins  a  prayer  for  dam- 
ages which  can  only  be  recovered  at  law,  a 
failure  on  tiie  part  of  defendant  to  object  to 
the  misjoinder  before  defense  is  made,  as 
required  by  the  Arkansas  Code  of  Practice, 
is  a  waiver  of  the  defect.  Organ  v.  Mem- 
phis <S-  L.  R.  R.  Co.,  39  Am.  &*  Eng.  R. 
Cas  75,  51  Ark.  ->35,  11  5.  W.  Rep.  96. 

Under  Iowa  Code,  §  2646,  when  a  petition 
contams  more  than  one  cause  of  action, 
each  must  be  stated  m  a  count  or  division 
by  itself,  and  must  be  sufficient  in  itself ; 
but  when  this  rule  is  violated  defendant 
must  make  his  objection  in  the  cou^-t  below, 
and  if  he  fails  to  do  so  and  goes  to  trial  he 
thereby  waives  the  objection.  Cruver  v. 
Chicago.  M.  &*  St.  P.  R,  Co.,  62  Iowa  460, 
17  N.   W.  Rep.  661. 

When  no  motion  is  made  for  a  more  spe- 
cific statement,  a  complaint  averring  plain- 
tiff's ownership  of  certain  wheat  destroyed, 
tiie  number  of  bushels,  a  demand  for  the 
same  or  payment  of  its  value,  and  demand- 
ing damages  in  the  sum  of  $600,  interest, 
and  costs,  is  sufficient  to  entitle  plaintiff  to 
judgment,  although  no  value  of  the  wheat, 
nor  the  fact  that  plaintiff  was  damaged  by 
its  loss,  is  specifically  alleged.  Independ- 
ence Mills  Co.  v.  Burlington,  C.  R.  &>  N.  R. 
Co.,  32  Am.  &*  Eng.  R.  Cas.  456,  72  Iowa 

535.  34  ^-  ^-  ^^^P-  320. 

An  averment  in  a  petition  that  a  certain 
person  was  general  manager  of  a  railway 
company,  and  that  on  behalf  of  the  com- 
pany he  promised  to  give  a  pass  over  its 
roads,  is  a  sufficient  allegation  of  the  author- 
ity of  the  agent  after  judgment  for  plaintiff, 
when  there  is  no  showing  that  such  aver- 
ment was  challenged  in  the  trial  court. 
Atchison,  T.  &*  S.  F.  R.  Co.  v.  English,  38 
Kan.  1 10,  16  Pac.  Rep.  82. 

Under  Wagn.  Mo.  St.  1015,  §  10,  an  ob- 
jection to  a  petition  for  misjoinder  of 
counts,  or  a  union  of  several  causes  in  one 
count,  if  not  made  by  demurrer  or  motion 
to  strike  out,  will  be  deemed  to  have  been 
waived,  and  cannot  be  raised  by  motion  in 
arrest  of  judgment.  House  v.  Lowell,  45 
Mo.  381.— Overruling  Hcagland  v.  Han- 
nibal &  St.  J.  R.  Co.,  39  Mo.  451. 


In  an  action  on  municipal  bonds,  every 
essential  element  of  the  power  given  to  the 
municipality  to  make  the  subscription  must 
be  pleaded.  So  where  the  action  Is  on 
county  bonds  issued  to  one  railroad,  a  peti- 
tion alleging  that  they  were  issued  to  an- 
other road,  but  failing  to  show  any  connec- 
tion between  the  two  roads,  or  that  the 
county  ever  subscribed  to  the  stock  of  the 
first  road,  or  that  the  company  had  ever 
accepted  a  subscription,  or  that  a  vote  of 
the  people  had  been  taken.  Is  so  defective 
as  not  to  be  cured  by  a  failure  of  defendant 
to  object,  or  by  judgment  by  default,  or  by 
the  statute  of  jeofails.  Weil  v.  Greene 
County,  69  Mo.  281. 

Where,  on  a  trial  of  an  action  for  the 
death  of  a  person  resulting  from  the  negli- 
gent act  of  a  railroad,  both  parties  on  the 
introduction  of  the  evidence,  and  by  their 
instructions,  treat  an  issue  as  properly  be- 
fore the  jury,  the  objection  that  such  issue 
was  not  within  the  averments  of  the  peti- 
tion is  waived.  Hilz  v.  Missouri  Pac.  R. 
Co.,  loi  Mo.  36,  13  S.  W.  Rep.  946. 

Where  plaintiff  alleges  with  reasonable 
precision  several  injuries  resulting  from  one 
act,  with  separate  claims  of  damage  there- 
for, the  defendant,  without  having  urged 
any  special  exception  to  the  manner  of  the 
averment,  cannot  construe  the  pleading 
most  favorable  to  himself,  and  require  the 
court  to  charge  upon  such  construction. 
Such  case  is  not  one  in  which  the  rule  that 
the  pleading  is  to  be  construed  most  strongly 
against  the  pleader  should  be  applied. 
Texas  C.  R.  Co.  v.  Stuart  i  Tex.  Cw.  App. 
642.  20  S.  W.  Rep.  962. 

178.   by  delay  in  objecting. — 

An  objection  that  an  amendment  of  a  peti- 
tion entirely  changes  the  cause  of  action,  as 
that  it  changes  the  action  from  one  to  re- 
cover from  a  carrier  a  statutory  penalty  to 
one  based  upon  the  common  law,  must  be 
made  at  the  time  of  the  amendment.  It 
cannot  be  made  for  the  first  time  at  the  trial, 
nor  on  appeal.  Spurlock  v.  Missouri  Pac. 
R.  Co.,  93  Mo.  530,  12  West.  Rep.  347,  6  S. 
W.  Rep.  349. 

1 70.  Disregarding  surpliisage  and 
non-prcJudicial  errors.  —  One  count 
in  a  complaint  for  killing  stock  only  averred 
negligence  in  running  a  train  at  a  greater 
speed  than  eight  miles  per  hour,  in  viola- 
tion of  the  statute.  There  was  no  statute 
regulating  speed  in  the  absence  of  an  or- 
dinance, and  it  was  not  averred  that  the 


^ 


PLEADING,  180.— PLEDGE  ;   COLLATERAL   SECURITY,  1.    lOGl 


Is,  every 
:n  to  the 
on  must 
n  is  on 
d,  a  peti- 
d  to  sili- 
con nec- 
that  the 
ck  of  the 
had  ever 
vote  of 
defective 
efendant 
ult,  or  by 
Greene 

n  for  the 
the  negli- 
ies  on  the 
1  by  their 
operly  be- 
such  issue 
f  the  peti- 
ri  Pac.  R. 
.6. 

reasonable 
g  from  one 
kage  there- 
ving  urged 
iner  of  the 
e  pleading 
require  the 
instruction. 
le  rule  that 
ost  strongly 
)e  applied. 
•.  Civ.  App. 

jecting.— 

nt  of  a  peti- 
}f  action,  as 
one  to  re- 
penalty  to 
aw,  must  be 
idment.  It 
:  at  the  trial, 
issouri  Pac. 
ep.  347.  6  ■S'- 

usage  nil  (I 

-  One  count 
only  averred 
at  a  greater 
ur,  in  viola- 
s  no  statute 
:e  of  an  or- 
ed  that  the 


speed  was  dangerous  or  unreasonably  high. 
Held,  that  the  count  was  faulty  and  prop- 
erly disregarded.  Duggan  v,  Peoria,  D.  <S^ 
E.  R.  Co.,  42  ///.  App.  536. 

Where  plaintiff  sues  to  recover  the  value 
of  land  appropriated  as  a  right  of  way  by 
defendant,  and  joins  a  cause  of  action  for 
damiiges  sustained  by  reason  of  the  faulty 
construction  of  the  road,  and  the  court  does 
not  have  jurisdiction  of  the  first  cause  of 
action,  it  may  be  treated  as  surplusage,  and 
plaintiflf  may  recover  under  the  second 
cause  of  action.  Allen  v.  Wilmington  (5>» 
W.  R.  Co..  102  N.  Car.  381,  9  5.  ^.  Rep.  4. 

180.  Errors  cured  by  verdict. — 
In  an  action  against  a  rr"  ad  for  causing 
death  at  a  crossing,  a  declaration  that  does 
not  charge  that  the  railroad  causing  the 
death  was  used  in  the  state  and  county 
where  the  action  is  brought  is  good  after 
verdict.  Chicago  S^  R.  I.  R.  Co.  v.  Morris, 
26  III.  400.— Followed  in  Toledo,  P.  & 
W.  R.  Co.  V.  Webster,  55  111.  338. 

Where  the  action  is  based  upon  a  personal 
injury  caused  by  defendant's  negligence,  a 
failure  to  aver  in  the  declaration  that  plain- 
tiflf exercised  proper  care  is  cured  by  ver- 
dict. Illinois  C.  R.  Co.  v.  Simmons,  38  ///. 
342.— Overruling  dictum  of  Chicago,  B. 
&  Q.  R.  Co.  V.  Hazzard,  26  111.  373. — Louis- 
ville, N.  A.  <&-  C.  R.  Co.  V.  Ader,  110  Ind. 
376,  9  West.  Rep.  \yo,  i\  N.  E.  Rep.  437. 

A  complaint  for  killing  an  animal,  under 
Ind.  Rev.  St.  1881,  §  4025,  good  in  other 
respects,  which  avers  X..  at  defendant  "  ran 
against  and  over  said  mare  and  killed  her," 
not  showing  that  the  injury  was  done  by 
tlie  locomotives,  cars,  or  other  carriages  run 
upon  the  road,  is  good  after  verdict.  Lou- 
isville, N.  A.&*  C.  R.  Co.  V.  Harritigton,  19 
Am.  &*  Eng.  R.  Cas.  606,  92  Ind.  4S7-— 
Distinguishing  Pittsburgh,  C  &  St.  L.  R. 
Co.  7'.  Troxell,  57  Ind.  246;  Pittsburgh,  C. 
&  St.  L.  R.  Co.  V.  Hannon,  60  Ind.  417; 
Ricketts  v.  Sandifer,  69  Ind.  318. 

Wliile  an  objection  to  a  complaint,  upon 
the  ground  that  it  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action,  is  not 
waived  by  defendant's  failure  to  present  such 
objection  either  by  demurrer  or  by  answer, 
but  may  be  made  for  the  first  time  by  an  as- 
signment of  error  on  appeal,  still  such  error 
can  only  be  predicated  upon  the  comf)laint 
as  an  entirety,  and  will  not  call  in  question 
tiie  sufficiency  of  the  facts  stated  in  the 
separ;'te  par;igraplis  or  counts  thereof. 
Louisville,  N.  A.  &*  C.  R.  Co.  v.  Ader,  no 


Ind.  376,  II  N.  E.  Rep.  437,  9  West.  Rep. 
190. 

A  petition  in  an  action  by  a  servant 
against  the  master  for  negligently  furnish- 
ing unsafe  appliances  to  the  servant  stated 
that  "defendant,  wholly  disregarding  its 
duty  to  this  defendant,  in  that  behalf,  did 
furnish,"  etc. ;  it  being  quite  apparent  that 
the  second  use  of  the  word  "  defendant  " 
was  a  clerical  mistake,  and  as  it  appeared 
from  other  averments  in  the  petition  that 
the  appliance  in  question  was  negligently 
furnished  plaintiflf  by  defendant,  the  defect 
in  the  petition  is  cured  by  verdict.  Johnson 
v.  Missouri  Pac.  R.  Co.,  96  Mo.  340,  95.  W. 
Rep.  790.— Followed  in  Pope  v.  Kansas 
City  Cable  R.  Co.,  43  Am.  &  Eng.  R.  Cas. 
290,  99  Mo.  400,  12  S.  W.  Rep.  891. 

A.  petition  containing  facts  sufficient  to  fix 
a  liability  upon  a  common  carrier  at  com- 
mon law  is  good  after  verdict.  Austin  v. 
St,  Louis  Of  St.  P.  Packet  Co.,  15  Mo.  App. 

197. 

Though  a  complaint  claims  damages  for 
"  profits "  of  land,  yet  where  the  whole 
complaint  shows  that  the  object  of  the  ac- 
tion was  to  recover  damages  for  being  de- 
prived of  the  use  of  the  land,  that  construc- 
tion should  be  given  the  complaint  after 
verdict.  Wilier  v.  Oregon  R.  &>  N,  Co.,  15 
Oreg.  153.  '3  f'ac-  K'P-  768. 


PLEASURE  GROUNDS. 
At  seaside  resort,  condemnation  of,  see  Emi- 
nent Domain,  98. 


PLEDGE;   COLLATERAL  SECURITY. 
Of  assets,  power  of  receivers  to  make,  see 

Receivers,  53. 
—  corporate  property,  authority  of  president 

to  make,  see  President,  4 
by  directors,  see  Dipectors,  etc., 

40. 
Power  of  corporations  to  pledge,  see  Corpo- 
rations, 11. 
Rights  of  holders  of  bonds  as,   see  Bonds, 

38 ;  MoRTOAGES,  270. 
pledgee  of  corporate  bonds,  see  Bonds, 

38. 
Transfer  of  bill  of  lading  as,  see  Bills  of 

Lading,  124-128. 

stock  by  way  of,  see  Stock,  43-49. 

Waiver  of  lien  by  taking,  see  Liens,  30. 

1.  Railroad,  when  subject  to 
pledge. — A  railroad  constructed  on  soil 
not  belonging  to  the  owner  of,  nor  tQ  the 
corporation  which  built,  the  road,  is  mova- 


loua 


PLEDGE  ;   COLLATERAL   SECURITY,  2,  3. 


ble  property,  and  as  such  liable  to  the  law 
regulating  pledges  on  movables.  Wood- 
ward V.  Ainetican  Exposition  A'.  Co.,  30  A»i. 
&•  Ettg.  A'.  Cas.  256,  39  La,  Ann.  566,  2  So. 
Kep.  413. 

2.  Pledge  of  stock,  eftect  of.— Upon 
a  pledge  of  stock  in  a  railroad  corporation 
in  New  Hampshire  there  should  be  such  de- 
livery as  the  nature  of  the  thing  is  capable 
of,  and  to  be  good  against  a  subsequent 
attaching  creditor  the  pledgee  must  be 
clothed  with  all  the  usual  muniments  and 
indicia  of  ownership.  Pinkerton  v.  Man- 
chester Sf*  L.  R.  Co.,  42  N.  H.  424. 

Where  stock  in  a  corporation  has  been 
pledged  for  the  "  redemption  of  certificates 
of  debt,"  and  the  certificates  bind  the  debt- 
or for  the  payment  of  "  the  sum  therein 
mentioned,  and  the  interest  thereon,"  the 
stock  is  bound  for  the  payment  of  the  inter- 
est itself,  and  a  foreclosure  may  be  decreed 
on  default  in  payment  of  any  instalment  of 
interest.  Swasey  v.  North  Carolina  R.  Co., 
I  Hughes  {U.  S.)  17. 

A  contractor  who  was  entitled  to  stock 
in  a  newly  organized  railroad  executed  an 
instrument  pledging  it  as  security  for  the 
fulfilment  of  an  existing  contract.  Held, 
that  the  instrument  wasa  valid  pledge  of  the 
stock,  and  when  the  certificates  were  issued 
by  the  railway  company  vested  the  stock  in 
the  pledgee.  Appeal  of  Harris,  (Pa.)  12  Ail. 
Rip.  743. 

:$.  Rights  and  liabilities  of  pledgee. 
—The  ijledgce  of  a  railroad  may  take  legal 
possession  through  a  third  person  chosen  by 
him  and  the  pledgor  IVoodrvard  v.  Amer- 
ii  "..  E:t position  R.  Co.,  30  Am.  &•  Etig.  R, 
•  16,  39  La.  Ann,  566,  2  So.  Rep.  413. 
^VSii  ->--  a  railroad  company  under  statu- 
lory  .  iihniity  pledges  its  bonds  as  col- 
'.('.:'  •  ■■'•horizing  the  pledgee  corporation 
'.  •  '  !  nein  without  notice  in  case  of 
non-payment  of  the  loan  at  maturity,  with 
the  further  provision  that  the  pledgee  may 
become  the  purchaser  thereof  in  his  own 
right,  the  sale  and  purchase  of  these  bonds 
under  and  within  the  terms  of  the  railroad 
company's  note  and  pledge  are  not  per  se 
void,  but  only  voidable  at  tlie  instance  of 
the  corporation  or  its  stockholders,  third 
parties  or  strangers  having  no  right  to  ques- 
tion the  purchaser's  title,  and  the  purchaser 
may  foreclose  for  the  full  amount  thereof, 
though  such  amount  be  largely  in  excess  of 
the  amount  of  the  loan  remaining  unpaid. 
Farmers'  L.  &*  T.  Co.  v.  Toledo  &*  S.  H.  R. 


Co.,  57  Am.  &*  Etig.  R.  Cas.  144, 54  Fed.  Rep. 

759- 

Where  a  railroad  company  pledges  its  own 
bonds  as  collateral  for  the  payment  of  debts 
contracted  by  the  company,  and  the  pledgee 
cuts  therefrom  and  collects  of  the  agents 
of  the  company  the  interest  coupons  that 
afterwards  become  due,  such  acts  cannot 
operate  as  a  conversion  of  the  bonds  by  the 
pledgee.  Androscoggin  R.  Co.  v.  Auburn 
Bank,  48  Me.  335. 

A  perfected  pledge — held,  not  avoided  or 
terminated  by  the  fact  that  for  a  special 
purpose,  and  for  the  benefit  of  the  pledgee, 
he  caused  the  property  to  be  nominally  con. 
signed,  on  a  shipment  of  the  same,  to  the 
pledgors.  Cooley  v.  Minnesota  Transfer  R. 
Co.,  55  Atn.&'Eng.  R.  Cas.  616,  53  Minn. 
327.  55  N.  IV.  Rep.  141. 

A  subsequent  garnishme.it  by  an  existing 
creditor  of  the  pledgors  would  not  thereby 
secure  a  right  superior  to  that  of  the 
pledgee.  Cooley  v.  Minnesota  Transfer  R. 
Co.,  55  Am.  &*  Eng.  R.  Cas.  616,  53  Minn. 
327,  55  N.  W.  Rep.  141. 

A  sale  of  the  pledged  property  by  the 
pledgors  to  the  pledgee  subsequent  to  the 
garnishment  would  not  extinguish  the  rights 
of  the  pledgee  as  between  himself  and  the 
garnishing  creditor.  Cooley  v.  Minnesota 
Transfer  R.  Co.,  55  Atn.  &•  Eng.  R.  Cas. 
616,  53  Minn,  327,  55  N,  W.  Rep.  141. 

Where  a  wife  pledges  her  trunk  to  pay  the 
railroad  fare  of  a  child  traveling  under  her 
charge,  and  the  husband  agrees  to  pay  the 
fare  if  the  trunk  is  forwarded,  and  when  for- 
warded replevins  it,  the  road,  the  pledgor,  is 
entitled  to  a  finding  that  its  special  interest 
in  the  trunk  is  the  amount  of  the  fare  thus 
promised  to  be  paid.  Coquard  v.  Union 
Depot  Co.,  10  Mo.  App.  261. 

In  such  case  the  husband's  contract  is  not 
to  pay  the  debt  of  another  and  is  not  within 
the  statute  of  frauds.  Coquard  v.  Union 
Depot  Co.,  10  Mo.  App.  261. 

An  incorporated  company  was  authorized 
by  its  charter  to  "  advance  moneys  *  *  * 
upon  any  property,  real  or  personal."  It 
discounted  a  note  secured  by  pledge  of  the 
bonds  of  a  railroad  corporation.  Held,  that, 
conceding  the  discount  was  in  violation  of 
the  provision  of  the  statute  against  un- 
authorized banking,  so  as  to  render  the  note 
void,  the  loan  and  its  security  were  valid  and 
could  be  enforced.  Duncomb  v.  New  York, 
H.  &•  N.  R.  Co.,  4  Am.  i5-  Eng.  R.  Cas.  293. 
84  A^  F.  190  ;  reversing  23  Hun  291. 


PLEDGE  ;   COLLATERAL   SECURITY,  4.— POLL   BOOKS.      10G3 


'! 


A  creditor  of  a  railroad  obtained  judg- 
ment against  it,  and  sued  out  execution,  and 
levied  upon  bonds  which  were  pledged  to 
him  to  secure  his  debt,  and  at  the  execution 
sale  bought  the  bonds.  Held,  that  he  had 
a  riglit  to  waive  the  lien  created  by  the 
pledge,  and  by  the  purchase  obtained  title 
to  the  bonds,  subject  to  the  right  of  the 
company  to  redeem  by  paying  the  amount 
of  the  debt  for  which  the  bonds  were 
pledged.  Sickles  v.  Richardson,  23  Hun 
{N.  Y.)  559.       • 

A  railroad  bond  was  placed  in  the  hands 
of  a  director  of  the  company  to  be  used  as 
collateral  in  raising  money  for  the  use  of  the 
company  on  notes  of  a  third  party.  He  did 
not  so  use  it,  but  pledged  it  with  his  own 
notes,  whicii  he  discounted  and  paid  the 
proceeds  to  the  company.  Held,  that  the 
company,  having  received  the  proceeds  of 
the  notes  without  objection,  must  bf;  con- 
sidered as  having  ratified  the  disposition  of 
the  bond  and  was  liable  to  the  pledgee. 
Flemming  v.  Camden  &*  A.  R.  Co.,  16  Phila. 
(Pa.)  60. 

Where  bonds  are  pledged  as  collateral, 
the  holders  have  a  right  to  receive  the  full 
amount  of  the  bonds,  and  not  only  the  face 
of  their  claims  with  interest,  unless  subse- 
quent creditors  can  show  a  resulting  inter- 
est in  their  debtor.  The  holders  must  be 
left  to  account  to  their  principal  for  any 
balance  that  may  be  over  the  amount  due  to 
themselves.  Rice  v.  Southern  Pennsylvania 
I.  &>  R.  Co.,  g  Phila.  (Pa.)  294.— Following 
McElrath  v.  Pittsburg  &  S.  R.  Co.,  68  Pa. 
St.  37. 

Where  a  railroad  corporation  pledges  its 
bonds  as  collateral  to  secure  a  debt  smaller 
than  the  par  value  of  the  bonds,  the  pledgee 
is  only  entitled  to  recover  the  amount  se- 
cured by  the  pledge.  Jesup  v.  CHy  Bank  of 
Racine.  14  Wis.  331. 

4.  Invalid  and  iiiiaiitliorized  pledg- 
es.—Stockholders  of  a  streetcar  company 
voted  to  issue  bonds  "  for  the  purpose  of 
extending  and  construc'.ing  the  road,  pqr- 
ciiasing  rolling  stock  and  equipments,  pay- 
ing for  labor  done  and  to  be  done  in  the 
construction  "  and  operation  of  the  road. 
Afterseveral  attempts  to  sell  them  the  presi- 
dent and  vice-president  of  the  company 
pledged  them  to  secure  antecedent  debts 
which  were  due  largely  to  other  companies 
of  which  such  officers  were  directors  and 
officers.  Held,  tliat  the  pledtre  was  in  fraud 
of  the  rights  of  the  stockholders  and  in- 


valid. Farmers'  L.  &*  T.  Co.  v.  San  Diego 
Street-Car  Co.,  45  Fed.  Rep.  518. 

A  transfer  of  bonds  belonging  to  a  rail- 
road company  by  the  president  of  tlie  cor- 
poration as  collateral  security  for  a  pre-ex- 
isting debt  due  by  himself,  no  new  consid- 
eration havii-g  passed  at  the  time,  is  void, 
although  the  president  was  authorized  by 
the  board  of  directors  to  negotiate  the 
bonds  for  the  company.  Pittsburgh  &•  C. 
R.  Co.  V.  Barker,  29  Pa.  St.  160. 

Where  such  bonds  are  pledged  as  coUat- 
eral  security  for  money  previously  deposited 
with  the  president  as  a  banker,  and  no  fur- 
ther time  is  given  for  the  payment  of  the 
deposit,  the  certificates  being  retained  by 
the  depositor,  and  no  change  made  upon 
the  books  of  the  banker,  it  is  strong  evi- 
dence that  the  deposits  remained  after  the 
pledge  of  the  bonds  as  before  subject  to  im- 
mediate withdrawal.  Such  facts  negative 
any  inference  to  be  drawn  from  the  pledge 
of  the  securities  that"  further  time  "  for  the 
payment  of  the  deposits  was  given  in  con- 
sideration of  such  pledge.  Pittsburgh  &*  C. 
R.  Co.  V.  Barker,  29  Pa.  .St.  160. 


POLES. 
Right  to  erect,  in  streets,  see  Electric  Rail- 
ways, 0-15. 


POLICE  OFFICERS. 

Liability  of  company  for  false  imprisonment 
by,  see  False  Imprisonment,  10. 


POLICE  POWER. 

Corporate    franchises   are   subject   to,    see 

Franchises,  8. 
Enactment  of  fence  laws  a  valid  exercise  of, 

see  Fences,  2. 
Is  paramount  to  contracts  in  charters,  see 

Charters,  125. 
Of  carriers  of  passengers,  see  Carriage  of 

Passenoers,  32;J. 
What  statutes  are  valid  exercises  of,  see 

Statutes,  18-20. 


POLICIES. 

Of  insurance,  construction  of,  see  Accident 

Insurance,  1. 


POLL  BOOKS. 

As  evidence,  see  Municipal  and  Local  Aid, 
133. 


1064 


POOLING   CONTRACTS— POWER   HOUSE. 


I  '111 


FOOLING  CONTRACTS. 

Validity  of,  see  Contracts,  00-G3. 

under  Interstate  Commerce  Law,  see 

INTEKSTATE  COMMERCK,    145,   140. 


POOR  RATES. 

Enforcement  of,  by  distress,  see  Distress,  3. 
Liability  for,  in  England,  and  how  enforced, 
see  Taxation,  U0.'i-383. 


PORTER. 
Delivery  of  bag^gage  to,  see  Baggage,  50. 


POSITIVE  AND  NEGATIVE 
EVIDENCE. 

In  actions  for  injuries  at  crossings,  see  Cross- 
iNGs,  Injuries,  etc.,  at,  348. 

Request  to  charge  as  to  relative  weight  of, 
see  Trial,  172. 

Weight  and  sufficiency  of,  see  Evidence, 
290-209. 


POSSESSION. 

By  company,  when  consent  or  deed  from  land- 
owner will  be  presumed,  see  Eminent 
Domain,  207. 

Demand  for,  prior  to  bringing  ejectment,  see 
Ejectment,  21. 

—  of.  before  bringing  ejectment,  see  Eminent 

Domain,  1025. 
Effect  of  judgment  to  warrant  company  in 

taking,  see  Eminent  Domain,  849. 
Necessary  in  plaintiff  to  maintain  trespass, 

see  Eminent  Domain,  1003. 
Necessity  that  defendant  be  in,  to  mairtain 

ejectment,  see  Ejectment.  13. 
Of  part  of  a  tract,  claiming  the  whole,  see 

Adverse  Possession,  7. 

—  plaintiff,  necessity  of,  to  maintain  eject- 

ment, see  Ejectment,  14. 

—  property  condemned,  company's  right  of 

exclusive,  see  Eminent  Domain,  134. 

—  receiver,  see  Receivers,  37-40. 

in  foreclosure,  see  Mortgages,  220. 

Order  for  immediate,  under  Canadian  expro- 
priation acts,  sec  Eminent  Domain, 
1222. 

Persons  in,  when  entitled  to  land  damages, 
see  Eminent  Domain,  427. 

Right  of,  in  defendant  as  a  defense  in  eject- 
ment, see  EjKCTMKNT,    17. 

.—  —  party  in.  to  appeal  in  condemnation 
proceedings,  see  Eminent  Domain,  877. 

—  —  person  in,  to  sue  for  damages  caused 

by  fire,  see  Fires,  145-154. 

—  -  trustees  to  take  on  default  by  mort- 
ga;,or,  st-e  MdurcAGES,  130-138. 


Surrender  of,  as  an  element  of  land  damages, 

see  Eminent  Dd.main,  080. 
Under  license  from  owner  as  a  defense  in 

ejectment,  see  Eminent  Domain,  1020. 
What  is  adverse,  see  Adverse  Possession, 

2,3. 
^  necessary  in  order  to  maintain  trespass, 

see  Trespass,  9. 
plaintiff  to  support  trover,  see  Tro- 

VER,  5. 


POSSESSORY  WARRANT. 

Form  and  sufficiency,  generally,  see  Process, 
12 


POSTAL  CLERKS. 
Carriage  of,  see  Carriage  of  Passengers,  64. 


POSTHUMOUS    CHILD. 

Right  of,  to  sue  for  damag|es  fo.*  causing 
death  of  parent,  see  Death  by  Wrongful 
Act,  61. 

When  entitled  to  land  damages,  see  Eminent 
Domain,  439. 


POSTING. 

Of  rates,  under  New  Hampshire  statutes,  see 
Charges,  08. 

—  rules  of  carrier,  see  Carriage  of  Passen- 

gers, 08. 

—  schedule  of  passenger  rates,  see  Tickets 

AND  Fares,  110. 
Time  of  arrival  of  trains,  see  Time  Tables, 
4,6 


POST-OFFICE. 
Giving  notice  of  arrival  through,  see  Car* 

RiAGE  OF  Merchandise,  227. 
Prosecutions  for  obstructing  the  mail,  see 

Criminal  Law,  37. 
Right  of  express  companies  to  carry  mailable 
matter,  see  Express  Companies,  5. 
See  also  Carriage  of  Mails 


POSTPONEMENT. 
Of  foreclosure  sale,  see  Mortgages,  243. 
—  trial,  see  Trial.  20-20. 


POWDER  MAGAZINE. 
In  city  limits,  explosion  of,  see  Explosions,  4. 


POWER  HOUSE. 

Of  cable  railway,  location  of,  see  Cable  Rail* 

WAYS,  6. 


POWER   OF   ATTORNEY— PRELIMINARY   SUBSCRIPTION.   1065 


lamagea, 


POWER  OF  ATTORNEY. 

To    transfer    stock,    construction    of, 
Stock,  33. 


see 


POWERS. 
Of  agents,  see  Agency,  10-36. 

—  arbitrators,  see  Arbitration  and  Award, 
8. 


PRATER. 

For  damages  in  justice's  court,  see  Animals, 
Injuries  to,  025. 

—  instructions,  see  Carriage  of  Live  Stock, 

153;    Carriage  of   Passengers,  G02- 
607;  Negligence,  112-114. 
appealing  from  denial  of,  see  Appeal 

AND   EkKOR,    18. 

as  to  contributory  negligence,  see  Con- 
tributory Negligence,  113,  113. 

in  actions  for  causing  death,  see  Death 

BY  Wrongful  Act,  348-362. 

injuries   to   trespassers,    see 

Trespassers,  Injuries  to,  120,  127. 

stock-killing   cases,  see   Animals. 

Injuries  to,  575,  570. 

—  —  on  trial,  generally,  see  Trial,  150- 

178. 
necessity  of,  see  Appeal  and  Error, 

lOO;  Eminent  Domain,  917. 
refusal  of,  when  ground  for  new  trial,- 

see  New  Trial,  7. 

—  —  to  jury  on  assessment  of  land  damages, 

see  Eminent  Domain,  500,  501. 

—  relief  in  bill  to  foreclose,  see  Mortgages, 

195. 

~  equity,  see  Pleading,  85. 

plaintiff's  pleadings,  see  Pleading, 

38. 
What  instructions  must  be  given  without, 

see  CHILDRK.N,  Injuries  to,  180. 


PRECAUTIONS. 

After  accident,  evidence  of,  see  EMPLOVfis, 

Injuries  to,  570,  571. 
Evidence  of  increased,  after  accident,  see 

Evidence,  84-88. 
Increased,  after  fire,  admissibility  of  evidence 

of,  see  Fires,  212. 


PRECEDENTS. 

Between  courts  of  concurrent  jurisdiction,  see 
Jurisdiction.  O. 


PRECEPT. 

Enforcement  of  award  or  judgment  by,  see 
Eminent  Domain,  855. 


PRE-EMPTION. 
By  original  owner  of  superfluous  lands  under 

English  statutes,  see  Eminent  Domain, 

1111. 
Holder  of,  when  entitled  to  land  damages, 

see  Eminent  Domain,  444. 
Right,  how  acquired,  effect,  etc.,  see  Public 

Lands,  17-20. 


PRE-EMPTIONERS. 
Of  public  lands,  rights  of,  see  Land  Grants, 

50. 
On  public  lands,  rights  of,  see  Land  Grants. 

GO,  81,  00,  138. 


PREFERENCES. 

In  assignment  for  creditors,  see  Assignment 
FOB  Benefit  of  Creditors,  2. 

Of  causes  on  trial  calendar,  see  Trial,  37. 

To  perishable  freights  to  be  given  by  carrier, 
see  Carriage  of  Merchandise,  30. 

Undue,  under  Interstate  Commerce  Law,  see 
.  Interstate  Commerce,  02-08. 


PREFERENCE  STOCK. 
In  English  law,  see  Stock,  4. 


PREFERRED  DIVIDENDS. 

Nature  of  and  right  to,  see  Dividends,  8. 


PREFERRED  STOCK. 
Issuing  to  contractors,  see  Stock,  1 1. 
Priority  of  holders  of,  see  Mortgages,  276. 
Rights  of  holders  of,  see  Stock,  5. 
Right  to  vote  on,  see  Stockholders,  lO. 


PREJUDICE. 

As  ground  for  change  of  venue,  see  Trial, 

15. 
Of  jury,  when  must  appear  to  set  aside  ver- 

diet,  see  New  Trial,  30. 


PRELIMINART  PAYMENT. 

Failure  to  make,  as  a  defense  to  action  on 
subscription,  see  Subscriptions  to  Stock, 
131-142. 


PRELIMINARY  PROOF. 

Of  loss  by  fire,  see  Fire  Insurance,  7. 


PRELIMINARY  SUBSCRIPTION. 
Insufficiency  of,  as  a  defense  to  action  on 
subscription,  see  Subscriptions  to  Stock, 
162. 


1066 


PREMISES— PRESIDENT,  1. 


PREMISES. 
Conveyed,  description  of,  in  deed,  see  Dikds, 

i4-2:{. 

Duty  to  keep  in  safe  condition,  see  Licensbes, 

Injukiks  to,  11,  1:2;  Trespassers,  In- 

jiiriks  to,  75-80. 
Liability  of  company  to  trespassers  on,  see 

Tkkhi'asseks,  iNji'Kir.s  to,  20-80. 
Measure  of  damages  for  obstruction  of  access 

to,  sec  Eminent  Domain,  1  lOO. 


PREMIUM. 

On  gold  as  damages  in  case  of  loss,  see  Car- 
riage ok  Mekcuandise,  759. 

—  insurance  policy,  payment  of,  see  Acci- 
dent Insurance,  7« 


PREPAYMENT. 

Of  damages,  waiver  by  landowner  of,  ice 
Eminent  Domain,  1022. 


PREPONDERANCE. 

Of  evidence  as  to  contributory  negligence, 
or  its  absence,  see  Contributory  Negli- 
gence, 101. 

in  actions  for  damages  caused  oj  fires, 

see  FiKKS,  250. 

injuries  to  employes,  see  Em- 
ployes, Injuries  to,  G21. 

negligence,   see  Negligence, 

08. 

—  proof,  generally,  see  Evidence, 272,282. 


PRESCRIPTION. 

Acquirement  of  easements  by,  see  Easements, 
8. 

Acquiring  right  to  turn  surface  water  on  land 
by,  see  Flooding  Lands,  26. 

Continuance  of  nuisance  gives  no  right  by, 
see  Nuisance,  Hi. 

Creation  of  private  ways  by,  see  Private 
Ways,  2. 

Obtaining  right  to  lay  out  street  across  rail- 
way by,  see  Crossing  of  Streets  and 
Highways,  52. 

Right  to  easement  not  gained  by,  see  Ele- 
vated Railways,  50. 


PRESENTATION. 
Of  petition  in  condemnation  proceedings,  see 
Eminent  Domain,  800. 


PRESENTMENT. 
Of  commercial  paper,  see  Bills,  etc.,  18. 
—  coupons  for  payment,  see  Coupons,  8. 


PRESIDENT. 

Authority  of,  to  employ  physician,  see  Medi- 
cal Services,  O. 
Service  of  process  on,  see  Process,  22. 

].   Aiitliority,   genernlly.*  —  (i)  In 

genera/. — A  president  of  a  corporation  may 
perform,  without  special  or  express  au- 
tiiority,  the  numerous  cvery-day  affairs  of 
the  corporation,  such  as  are  incident  to  the 
execution  of  the  trust  reposed  in  him — such 
as  custom  or  necessity  has  imposed  u[)on 
the  offlcc.  Chicago,  B.  <S-  Q.  R.  Co.  v.  Cole- 
man, 1 8  ///  297. 

The  act  of  the  president  of  an  incorpo- 
rated company  in  accepting  conditional 
subscriptions  is  binding  on  the  company. 
Pittsbuviih  <S-  C.  K.  Co.  v.  Stewart,  41  Pa. 
5/.  54. 

And  he  may  collect  subscriptions  to  the 
capital  stock.  East  N.  V.  &^  J.  R,  Co.  v. 
Light  hall,  5  Abb.  Pr.  N.  S.  {N.  Y.)  458.  36 
How.  Pr.  481,  6  Robt.  407. 

An  authority  to  the  president  of  a  cor- 
poration "  to  make  all  contracts,  and  draw 
on  the  treasurer  for  all  disbursements  (coun- 
tersigned by  the  secretary)  under  tlie  direc- 
tion of  the  board  "  does  not  aathorize  him 
to  accept  a  bill  without  "the  direction  of 
the  board."     Lazarus  v.  Shertrer,  2  Ala.  718. 

Where  the  agent  of  a  company  drew  a 
check  for  $1000  in  the  compan/'s  name  pay- 
able to  himself  and  kept  the  money  on  the 
authority  of  the  president  of  the  company, 
who  it  appears  was  not  authorized  to  allow 
the  agent  so  to  dispose  of  the  funds,  the 
agent  must  account  to  the  company  for  the 
money  and  interest.  Sioux  City  R.  Con- 
tracting Co.  v.  IVallcer,  47  Iowa  699. 

After  a  company  had  sold  its  road  to  a 
second  company,  a  third  company  proposed 
to  locate  its  road  on  lands  purchased  for 
the  existing  road,  but  being  ignorant  of  the 
sale,  gave  notice  to  the  original  company. 
A  trustee  of  the  bondholders  of  the  original 
company,  who  was  also  president  of  the 
second  company,  appeared,  but  did  not  dis- 
close the  sale.  Held,  that  the  second  com- 
pany was  chargeable  with  notice,  and  was 
bound  bv  the  proceedings  taken.  jXcju 
York  &-'n.  E.  R.  Co.  v.  Neiv  York.  N.  H. 


*  General  powers  of  president  and  vice-pres- 
ident of  corporations,  see  note,  14  L    R.  A.  356. 

Liability  of  company  for  contracts  made  by 
president,  superintendent,  division  superintenu- 
ent.  and  general  agents  or  managers,  see  note, 
20  L   R.  A    606 


PRESIDENT,  2. 


1067 


&^  ft.  R.  Co.,  2%  Am.&*  Eng.  R.  Cat.  215, 
52  Conn.  274.  —  Distinguishing  Piatt  v. 
Birmingham  Axle  Co.,  41  Conn.  255.  Quot- 
ing Fitcliburg  R.  Co.  v.  Boston  &  M.  R. 
Co.,  3  Cusli.  (Mass.)  77. 

A  corporation  can  only  act  by  its  agents, 
and  in  order  to  bind  the  corporation  the 
agency  must  appear,  but  this  need  not  be 
shown  by  any  resolution  or  other  written 
evidence,  but  may  be  implied  Iroin  facts  and 
circumstances.  A  company,  through  its 
secretary,  advertised  a  quantity  of  old  rails 
for  sale.  Plaintiff's  agent  called  on  the  sec- 
retary and  was  referred  to  the  acting  presi- 
dent, who  was  informed  that  plaintiff  was  a 
broker  and  would  charge  a  commission  of 
one  per  cent,  for  making  the  sale,  to  which 
the  president  agreed.  Held,  sufficient  facts 
to  justify  the  jury  in  finding  that  the  presi- 
dent was  authorized  to  contract  for  payment 
of  a  commission.  Northern  C.  Ji.  Co.  v. 
Bas/tiin,  15  Aid.  494. 

Where  the  president  of  a  company  obtains 
advances  to  pay  interest,  and  the  company 
pledges  its  earnings  to  secure  the  same, 
such  pledge  is  for  tlie  security  of  the  presi- 
dent, and  it  does  not  prevent  him  from 
paying  out  such  earnings  on  other  debts,  if 
lie  deems  it  to  the  interest  of  the  company 
to  do  so.  Duncan  v.  Mobile  &»  O.  R.  Co.,  3 
Woods  (U.S.)  567. 

Defendant  company  was  engaged  in  the 
mai;ufacture  and  sale  of  a  certain  device  for 
heating  cars,  and  plaintiff  sued  to  recover 
commissions  lor  procuring  railroad  com- 
panies to  fit  up  trains  with  the  device, 
under  a  contract  with  defendant's  president. 
Defendant  claimed  that  the  president  was 
not  authorized  to  make  such  a  contract,  as 
its  by-laws  made  it  the  duty  of  the  vice- 
president  to  atte.id  to  such  matters.  Held, 
tiiat  the  contract  being  witiiiii  the  apparent 
scope  of  the  president's  duties,  and  relating 
strictly  to  the  company's  business,  plaintiff 
was  not  bound  by  a  by-law  of  which  he  did 
not  have  notice,  and  might  recover.  Smith 
V.  Martin  A.  F.  Car  Heater  Co.,  47  A'.  Y. 
S.  R.  26,  64  Hun  639,  19  A'.   ]'.  Supf>.  285. 

(2)  Construction  contracts. — The  president 
of  a  railroad  company  has  no  power,  by  vir- 
tue of  his  office  simply,  to  let  a  contract  in 
behalf  of  the  company  for  the  construction 
of  its  road,  when  the  same  is  already  under 
contract  by  the  board  of  directors.  Templin 
V.  Chicago,  B.  Sf'  P.  R.  Co.,  34  Am.  (S-  Eng. 
R.  Cas.  107,  73  Iowa  548,  35  N.  JV.  Rep. 
634.— Followed  in  Griffith  v.  Chicago,  B. 


&  P.  R.  Co.,  74  Iowa  85,  36  N.  W.  Rep.  901. 
—  Griffith  V.  Chicago,  D.  »&<•  P.  R.  Co.,  74 
Iowa  85,  36  A'.  W.  Rep.  901.  — Following 
Templin  v.  Chicago,  B.&  P.  R.Co.,73  Iowa 
548. 

After  a  company  has  entered  into  a  writ- 
ten contract  for  the  performance  of  certain 
work,  the  promise  of  its  president  to  allow 
additional  compensation  to  the  contractors 
for  the  same  work  is  without  consideration, 
and  not  binding  on  thecompany.  Colcockv, 
Louisville,  C.  <&*  C.  R.  Co.,  i  Strobh.  {So.  Car.) 
329.  A'esbitt  V.  Louisville,  C.  «S-  C.  R.  Co.,  2 
spears  {So.  Car.)  697. 

Where  a  president  of  a  corporation  ap- 
pears as  the  active  agent  in  the  execution  of 
any  work,  parties  employed  by  him  have  a 
right  to  assume  that  he  is  acting  for  the 
corporation,  and  that  hisacts  in  that  respect 
are  its  acts  and  binding  upon  it.  Solomon 
R.  Co.  V.Jones,  15  Am.  &*  Eng.  R.  Cas.  201, 
30  Kan.  601,  2  Pac.  Rep.  657. 

The  authority  of  the  president  of  a  rail- 
road company  to  make  contracts  for  neces- 
sary labor  for  the  company  is  incident  to 
his  office.  And  he  may  furnish  evidence  of 
the  amount  payableunder  the  contract, either 
before  or  after  the  service,  and  put  that  evi- 
dence, in  nis  discretion,  into  the  form  of  a 
due  bill  or  promissory  note,  unless  such 
power  is  restricted  by  special  legislation  or 
by  regulations  of  thecompany  known  to  the 
other  contracting  party.  Rir'  d,  F.  &* 
P.  R.  Co.  v.  Snead,  19  Gratt.  (t  54. 

A  railroad  company  deliverei  jonds  to 
trustees  to  be  used  in  the  construction  of  a 
railroad,  and  the  trustees  delivered  a  por- 
tion of  them  to  the  president  of  the  com- 
pany to  be  delivered  to  certain  contractors, 
with  whom  the  president  had  contracted  for 
the  company.  When  sued  to  compel  him 
to  deliver  up  the  bonds,  he  set  up  the  de- 
fense that  directly  after  the  contract  was 
made  he  became  an  assignee  of  part  of  the 
contract  and  was  entitled  to  retain  the 
bonds,  not  only  on  account  of  such  interest 
in  the  contract,  but  because  the  other  con- 
tractors owed  him.  It  appeared  that  the 
contract  was  made  with  the  agreement  that 
an  interest  therein  was  to  be  transferred  to 
the  president.  Held,  that  such  contract,  as 
between  the  company  and  its  president,  was 
fraudulent  and  void,  and  the  facts  set  up 
constitute  no  defense.  Flint  &*  P.  M.  R. 
Co.  V.  Dewey,  14  Mich.  477. 

2.  to  piirclmso  for  company.— 

Immediately    before  an    a!lei;cd    sale,  the 


1068 


PRESIDENT,  3,4. 


president  made  a  large  purchase  nf  railroad 
iron,  and  tlie  corporation  sanctioned  tlic 
proceeding,  received  and  used  the  iron  and 
paid  for  It  in  the  manner  agreed  to  l)y  tiie 
president.  Upon  application  to  piaintifl  by 
the  contractor  for  the  building  of  defend- 
ant's road,  for  railroad  material  to  be  used, 
and  afterwards  actually  used  in  the  building 
of  the  road,  plaintiff  told  the  president  that 
he  would  sell  to  the  company  tlic  material 
in  question  upon  its  order,  but  would  not 
sell  to  the  contractor,  and  thereupon  the 
president  told  him  to  send  the  materials  to 
the  company.  Plaintiff's  bill  was  sent  to  the 
president,  who  replied  that  he  would  pre- 
sent it  to  the  directors.  The  president  a^ ) 
ways  acted  for  the  company,  and  the  di- 
rectors, when  spoken  to  upon  this  subject, 
always  referred  to  the  president,  and  took 
no  part  themselves.  Held,  that  it  was  a 
question  for  the  jury  whether  the  president 
was  the  authorized  agent  of  the  company  in 
making  the  purchase.  Reed  v.  Ashburnham 
Ji.  Co. ,  1 20  Mass.  43. 

JJ.  to  sell  corporate  property. 

—  In  an  action  for  the  conversion  of  railroad 
ties  both  parties  claimed  title  from  the 
company,  plaintiff  setting  up  a  bill  of  sale 
from  the  president  to  secure  a  debt  from 
the  company,  under  which  possession  was 
delivered  by  the  president ;  and  defendant 
claimed  under  a  prior  title  derived  from  the 
company.  The  company's  charter  provided 
that  its  affairs  should  be  managed  by  a 
board  of  directors,  one  of  whom  should  be 
president,  but  his  powers  were  not  pre- 
scribed. Held:  (i)  that  the  president  had 
no  power,  by  virtue  of  his  office  merely,  to 
make  the  sale ;  (2)  that  such  power  was  not 
conferred  by  a  resolution  of  the  directors, 
making  him  the  fiscal  agent  of  the  company, 
and  directing  him  to  purchase  such  equip- 
ments as  the  board  might  direct;  (3)  that 
possession  itself,  where  the  bill  of  sale  was 
invalid,  was  not  sufHcient  to  enable  plaintiff 
to  maintain  the  action.  Walworth  County 
Bank  v.  Farmers'  L.  &*  T.  Co.,  14  Wis.  325. 
— Reviewed  in  Chicago  &  N.  W.  R.  Co.  v. 
James,  22  Wis.  194. 

The  board  of  directors  of  a  railroad  cor- 
poration that  was  in  debt  passed  a  resolu- 
tion authorizing  the  president  and  vice- 
president  "  to  enter  into  such  arrangements 
with  its  creditors  or  the  holders  of  its  secu- 
rities for  such  relief  as  the  circumstances 
and  necessities  of  the  case  require,  and  to 
make  such  stipulations  and  agreements  in 


the  premises  as  they  may  deem  proper  and 
expedient."  Jleld,  sufficient  to  coiiler  upon 
them  a  joint  authority  to  sell  property  be- 
longing to  the  corporation  to  pay  debts. 
Walworth  County  Bank  v.  farmers'  L.  &* 
T.  Co.,  16  Wis.  629. 

Under  the  above  authority  the  president, 
with  the  consent  the  vice-president,  sold 
ties  to  a  certain  bank  in  payment  of  a  debt. 
The  vice-president  was  president  of  the 
bank,  and  acted  for  it  in  effecting  the  sale. 
Held,  that  the  vice-president  could  not  act 
for  both  parties,  and  as  the  resolution  con- 
ferred a  joint  authority  upon  the  president 
and  vice-president,  the  transaction  stood  as 
though  it  was  made  by  the  president  alone, 
and,  therefore,  was  not  within  the  power 
conferred.  Walworth  County  Bank  v.  Farm- 
ers' L.  &*  T.  Co.,  16  Wis.  629. 

4.  to  pledge  or  mortgage  cor- 
porate property. — Where  the  manage- 
ment of  the  affairs  of  a  corporation  is  in- 
trusted by  its  charter  to  a  board  of  directors, 
the  president  and  cashier,  unless  specially 
authorized  by  the  charter,  have  no  power 
to  assign  the  choses  in  action  of  the  corpo- 
ration to  its  creditor  as  security  for  a  pre- 
cedent debt  of  the  corporation,  without 
authority  from  the  board  of  directors.  An 
assignment  so  made  is  not  merely  voidable, 
but  absolutely  void.  Hoyt  v.  Thompson,  5 
N.  V.  320 ;  reversing  3  Sand/.  416. 

A  by-law  authorizing  the  president  of  a 
company  to  act  as  its  business  and  financial 
agent  only  makes  him  an  agent  for  the  or- 
dinary business  of  the  corporation,  and  does 
not  authorize  him  to  execute  a  mortgage, 
under  the  corporate  seal,  of  an  engine  be- 
longing to  the  company,  to  secure  a  debt, 
and  such  mortgage  creates  no  lien  on  the 
engine.  Lusev.  Isthmus  Transit  J?.  Co.,  6 
Or  eg.  125. 

A  resolution  of  the  board  of  directors 
authorizing  the  president  of  a  company  to 
execute  a  mortgage  to  secure  bonds  which 
were  to  run  fifteen  years,  with  interest  pay- 
able semi-annually,  does  not  authorize  him 
to  insert  a  provision  that  a  failure  to  pay 
interest  shall  make  the  principal  fall  due 
before  the  fifteen  years,  at  the  option  of  the 
holder,  where  it  appears  that  it  was  not 
usual  to  insert  such  a  provision  in  railroad 
mortgages.  Jestip  v.  City  Bank  of  Racine, 
14  Wis.  331, 

And  the  power  to  insert  the  above  pro- 
vision cannot  be  inferred  from  a  resolution 
of  the  board  passed  several  years  before,  au- 


>per  and 
ilerupon 
jerty  be- 
ly  debts. 
TS'  L,  &* 

resident, 
lent,  sold 
f  a  debt, 
of    the 
the  sale, 
not  act 
ion  con- 
president 
stood  as 
nt  alone, 
power 
■  V.  Farnf 


PRESIDENT,  5-7. 


1069 


thorizing  the  president  and  another  person, 
jointly  or  severally,  to  make  loans  for  the 
CDmpany  "  in  such  maimer  as  they  should 
dLcni  advisable";  but  such  provision  did 
not  afTcct  the  validity  of  the  mortgage 
RLMiL-rally.  Jesupv.  City  Bank  of  Kaci'uc,  14 
Wis.  331. 

The  president  and  general  manager  of  a 
CDmpany,  who  was  also  its  principal  owner, 
was  in  tlie  habit  of  mingling  the  moneys  of 
the  company  with  his  own.  He  bought  cer- 
tain locomotives  which  he  delivered  to  the 
company,  and  it  used  the  same  as  its  own 
for  several  years.  Afterwards  the  president 
marie  a  contract  of  sale  of  certain  of  the 
locomotives  to  guarantee  certain  persons 
against  loss  for  indorsing  his  note,  but  the 
company  remained  in  possession.  Held,  that 
the  transaction  amounted  to  a  mere  pledge 
without  delivery,  and  that  the  pledgees 
were  not  entitled  to  possession,  upon  the 
insolvency  of  the  president,  as  against  the 
Judgment  creditors  of  the  president.  Fair- 
banks  v.  Harlow,  14  Can.  Sup.  Ct.  217 ; 
affirming  2  Montr.  L.  R.  332. 

ft.  KepreHentatioiiti  of,  when  bind 
the  cuinpauy.'*' — Persons  who  are  aslced 
to  vote  taxes  in  aid  of  a  railroad  may  rea- 
sonably presume  that  the  president  of  the 
company  has  authority  to  make  representa- 
tions as  to  the  location  of  the  road  ;  and 
where  a  favorable  vote  of  a  township  is 
secured  by  means  of  representations  of  the 
president  of  the  company  that  the  road 
would  be  permanently  located  through  the 
center  of  the  township,  but  it  is  afterwards 
located  along  its  border,  the  collection  of 
the  tax  may  be  enjoined,  notwithstanding 
the  president  believed  his  representations 
to  be  true.  Curry  v.  Decatur  County  Sup'rs, 
13  Am.  &*  Eng.  K.  Cas.  80.  61  Iowa  71,  15 
N.  W.  Rep.  602.  —  Adopting  Sinnett  v. 
Moles,  38  Iowa  25. 

In  such  case,  where  notice  is  given  to  the 
president  before  any  grading  is  done  in  the 
township  that  the  taxpayers  would  resist 
the  collection  of  the  tax,  the  taxpayers  are 
not  estopped  from  insisting  upon  the  for- 
feiture of  the  tax  after  the  railroad  is  actually 
built.  Curry  v.  Decatur  County  Sup'rs,  13 
Am.  &*  Eng.  R.  Cas.  80,  61  Iowa  71,  15  A^. 
W.  Rep.  602. 

The  president  of  defendant  street-car 
company  procured  a  loan  from  plaintifl  on 

*  Power  of  president  to  bind  the  corporation, 
see  note,  34  Am.  &  Eng.  R.  Cas.  no. 


his  individual  note,  and  gave  a  certificate 
of  stock  in  defendant  company  as  collateral, 
but  some  of  tlie  signatures  to  the  ccrtilicatc 
were  forged  by  tlie  president.  Held,  that 
the  president  was  acting  for  himself  in  pro- 
curing the  loan,  and  therffure  the  company 
was  not  bound  by  liis  representations.  Man- 
fiattan  Life  Ins.  Co,  v.  Forty-second  St.  &• 
G.  S.  F.  R.  Co.,  46  N.  V.  S.  R.  130,  64  Hun 
635,  19  A',  y.  Snpp.  90;  aJjTirmed  in  139  N. 
V.  146,  34  A'.  F.  Rep.  776,  54  A^  V.  S.  R. 
474.— DrsTiNfiuisHiNG  Bank  of  Batavia  z/. 
New  York.  L.  E.  &  W.  R.  Co.,  106  N.  Y. 
195,  8  N.  Y.  S.  R.  209. 

A  junction  railroad  was  built  and  owned 
by  the  Pennsylvania  railroad  company  and 
two  others.  A  part  of  its  track  was  built 
by  the  Pennsylvania  company  through  its 
yard,  without  any  purchase  or  condemna- 
tion, under  the  direction  of  the  president 
of  the  Pennsylvania  company,  who  was  also 
president  of  the  junction  road.  Held,  that 
the  latter  company  was  not  entitled  to  a 
decree  adjudging  it  entitled  to  the  exclusive 
ownership,  possession,  and  use  of  that  part 
of  the  road  through  the  yard  ;  that  no  acts 
or  declarations  of  such  president  could  pass 
rights  or  franchises  by  way  of  estoppel. 
Pennsylvania  R.  Co.'s  Appeal,  80  Pa.  St. 
265. 

O.  Powers  of  <le  fhcto  president.— 
A  president  de  facto  of  a  railroad  company, 
when  a  suit  is  pending  in  which  his  right  to 
the  office  is  to  be  tried,  and  just  before  the 
decision  of  such  suit,  has  no  right  to  make 
a  distribution  of  the  funds  of  the  company 
to  such  creditors  as  he  may  elect  to  give 
preference.  Walker  v.  Flemming,  70  N. 
Car.  483. 

For  the  ordinary  purposes  of  the  com- 
pany, and  in  order  to  keep  the  machinery  in 
motion,  a  de  facto  president  will  be  recog- 
nized as  having  power  to  act.  Walker  v. 
Flemming,  70  A''.  Car.  483. 

7.  Bight  to  deal  for  his  own  bene- 
fit.— The  president  of  a  packet  company, 
after  having  endeavored  to  obtain  contracts 
for  carrying  the  mails  for  his  company  and 
failed,  is  not  precluded  from  making  such 
contracts  in  his  own  behalf,  but  having  done 
so  he  must  use  all  the  facilities  afforded  by 
his  company  in  performing  them,  and  will 
not  be  allowed  to  make  profit  out  of  such 
use,  but  will  be  held  to  account  to  the  com- 
pany for  all  that  he  received  for  the  services 
performed  by  it  Keokuk  N.  L.  Packet  Co. 
V.  Davidson,  95  Mo.  467,  8  S.  W.  Rep.  545. 


'  ) 


1070 


% 


PRESIDENT,  8,  0. 


B-i, 


it  ii 


■»1 


•vh       J 


H 


I  ii  ■* 


\f!. 


The  president  of  a  railroad  company  en- 
tered into  a  contract  for  the  construction 
and  equipment  of  the  road  for  a  certain 
sum  in  stock  and  bonds  of  the  company. 
In  t.ccordance  with  a  previous  arrangement 
the  contract  was  assigned  to  the  president, 
who,  witii  otiiers,  performed  the  contract  at 
an  expense  less  than  the  par  value  of  the 
stock  and  bonds  agreed  to  be  paid.  It  ap- 
peared that  the  assignment  was  made  in 
good  faith,  after  full  deliberation  and  cci 
sultation,  with  the  knowledge  and  assenf  of 
all  the  directors  and  stockholders  of  the 
company,  as  the  only  means  to  insure  the 
construction  of  the  road,  and  that  the 
amount  expended  exceeded  the  actual  value 
of  the  stock  and  bonds  given  in  payment. 
//t/d,  that  the  stock  was  to  be  considered  as 
fully  paid  up,  and  that  a  receiver  of  the  road 
could  not  maintain  an  action  to  recover  a 
proportionate  share  of  the  diflference  be- 
tween the  par  value  of  the  stock  and  the 
cost  of  construction.  Van  Cott  v.  Van 
Brunt,  2AVI.&'  En^.  R.  Cas.  107,  82  ;V.  Y. 
535;  reversing  2  Abb.  N.  Cas.  283. — Fol- 
lowed IN  Coe  V.  East  &  VV.  R.  Co.,  52  Fed. 
Rep.  531. 

A  president  or  director  of  a  corporation 
bears  the  relation  of  trustee  to  the  corpora- 
tion, and  is  disqualified  from  acting  officially 
upon  any  matter  of  immediate  personal  and 
pecuniary  inter  st  to  himself.  Austin  City 
Ii.  Co.   v.  Swisher,  i   Tex.  App,  (Civ.  Cas.) 

33- 

8.  Contracts  directly  trith  com- 
pany.— "^be  president  of  a  corporation  exe- 
cuted to  ;e.tain  of  its  directors  a  mortgage 
of  land  to  which  his  wife  had  an  equitable 
claim  by  virtue  of  an  unrecorded  deed  to 
her.  Ne/d,  that,  having  acted  in  the  trans- 
action, not  for  the  corporation,  but  solely 
for  himself,  his  knowledge  of  his  wife's 
equities  is  not  the  knowledge  of  the  com- 
pany, and  cannot  affect  its  rights  unless 
shown  to  have  been  communicated  to  it. 
Winchester  v.  Baltimore  &*  S.  B.  Co.,  4 
Md.  231. 

An  elevated  railroad  company  let  a  con- 
tract, through  its  president,  for  the  con- 
struction and  equipment  of  its  road  for  a 
fixed  sum  per  mile,  payable  in  stock  and 
bonds  of  the  company  as  each  mile  of  the 
road  should  be  completed  and  certified  by 
the  engineer.  The  president  acted  as  engi- 
neer and  took  an  assignment  of  the  contract 
to  himself,  and  made  the  certificates  as  the 
several  amounts  fell  due  to  the  contractor. 


//e/d,  that  the  position  of  president  was  in- 
consistent with  the  other  duties ;  and  the 
fact  that  he  claimed  to  hold  the  contract  as 
trustee  for  others,  who  were  to  furnish  the 
money  to  carry  it  out,  does  not  make  the 
contract  valid,  where  it  provides  that  the 
contractor  is  bound  to  furnish  the  money 
himself.  Keeler  v.  Brooklyn  El.  R.  Co.,  9 
Abb.  N.  Cas.  {N.  F.)  166. 

O.  Ratification  by  (lirector.s— Ac- 
«iuiesccnce.— If  the  directors  of  a  railroad 
company,  upon  being  informed  by  the  pres- 
ident that  he  had  executed  at  the  request  of 
certain  other  railroad  companies  an  agree- 
ment by  which  running  powers  were  se- 
cured over  a  bridge,  do  not  dissent  therefrom 
and  attack  the  validity  of  the  agreement, 
they  will  be  presumed  to  have  concurred  in 
and  ratified  the  same.  Pittsburgh,  C.  &•  St. 
L.  R.  Co.  V.  Keokuk  &^  H.  Bridge  Co.,  39 
Am.  &*  Eng.  R.  Cas.  213,  131  U.  S.  371,  9 
Sup.  Ct.  Rep.  770.— FoLLOWKD  IN  Augusta, 
T.  &  G.  R.  Co.  V.  Kittel,  52  Fed.  Rep.  63,  2 
U.  S.  App.  409,  2  C.  C.  A.  615. 

If  the  president  of  a  railroad  company 
executes  a  contract  by  which  the  company 
undertakes  to  reimburse  another  company 
the  sums  expended  by  it  as  rental  and  tolls 
for  the  use  of  a  bridge,  and  the  comptroller 
of  the  company  examines  and  settles  ac- 
counts rendered  directly  by  the  owners  of 
the  bridge  to  the  railroad  company,  the  evi- 
dence is  sufficient  to  justify  the  court  in 
holding  that  the  railroad  company  ac- 
quiesced in  the  contract  and  is  bound  by  it. 
Pittsburgh,  C.  &*  St.  L.  R.  Co.  v.  Keokuk  &* 
H.  Bridge  Co.,  39  Am.  &*  Eng.  R.  Cas.  213, 
131  U.  S.  yj\,<)  Sup.  Ct.  Rep.  770. 

If  the  president  of  a  railroad  company 
executes  a  contract  by  which  the  company 
guarantees  the  payment  of  rent  and  tolls 
for  the  use  of  a  bridge,  and  subsequently 
the  president  and  directors,  in  their  printed 
annual  report  to  the  stockholders,  declare 
it  to  be  the  policy  of  the  company  to  secure 
a  continuous  line  to  the  west,  and  that  by 
means  of  the  contract  for  the  use  of  a  bridge 
this  has  been  accomplished,  the  evidence  is 
sufficient  to  justify  a  finding  that  the  guar- 
antee was  either  authorized  by  the  company 
or  its  execution  ratified.  Pittsburgh,  C.  &* 
St.  L.  R.  Co.  V.  Keokuk  &>  H.  Bridge  Co.,  39 
Am,  &*  Eng.  R.  Cas.  213,  131  U.  S.  371,  9 
Sup.  Ct.  Rep.  770. 

Where  a  company  accepts  through  a  series 
of  years  the  benefits  of  a  contract  made  by 
its  president,  it  cannot  then  be  heard   to 


PRESIDENT,  10,11. 


1071 


ent  was in- 
and  the 
contract  as 
urnish  the 
make  the 
that  the 
Lhe  money 
Ji.  Co.,  9 

tors— Ac- 

f  a  railroad 
ly  the  pres- 
;  request  of 

an  agree- 
were  se- 

therefroni 
agreement, 

ncurred  in 
h,  C.  &-  St. 
dge  Co.,  39 

•  ^^  371.  9 

N  Augusta, 
Rep.  63,  2 

1  company 
le  company 
r  company 
al  and  tolls 
:omptroller 
settles  ac- 
owners  of 
ny,  the  evi- 
le  court  in 
mpany  ac- 
ound  by  it. 
.  Keokuk  <S- 
?.  Cas.  213, 
o. 

3  company 
le  company 
t  and  tolls 
ibsequently 
leir  printed 
;rs,  declare 
ly  to  secure 
nd  that  by 
of  a  bridge 
evidence  is 
t  the  guar- 
le  company 
urgh,  C.  &» 
idge  Co.,  39 
T.  S.  371.  9 

jgh  a  series 
ct  made  by 
!  heard   to 


i   , 


repudiate  its  obligations  thereunder  and 
claim  that  he  had  no  authority  to  enter 
into  it.  Green  v.  Missouri  Pac.  R.  Co.,  82 
Mo  6ry  Hilliard  v.  Goold,  34  A^.  H.  230 
Olcott  V.  Tioga  R.  Co.,  27  A'.  Y.  546 ;  affirm- 
ing 40  liarb.  179. 

The  president  of  a  corporation,  who  had 
general  powers  in  the  prosecution  ol  the 
company's  projects,  bought  a  house  to  be 
used  as  an  office  for  the  company,  and  it 
took  possession  and  the  trustees  held  their 
meetings  in  it  for  six  weeks.  Held,  that 
this  was  a  ratification  of  the  purchase,  even 
if  the  president  was  not  authorized  to  buy 
It,  and  a  subsequent  rejection  of  the  con- 
tract by  the  company  would  not  relieve  it 
from  payment  of  the  purchase  money. 
Shaver  v.  Bear  River  &•  A.  IV.  &*  M.  Co., 
10  Ca/.  396. 

The  president  of  defendant  company  re- 
tamed  plaintiff,  a  lawyer,  to  render  certain 
legal  services  for  the  company.  During  the 
time  that  the  services  were  being  rendered 
the  president  fr£quently  advised  with  the 
board  of  directors  concerning  the  business 
upon  which  plaintiff  was  engaged.  He/d, 
that  tins  was  a  ratification  of  the  act  ot  the 
president  in  retaining  him,  though  it  did 
not  formally  appear  on  the  books  of  the 
directors  and  plaintiff  might  recover  on  a 
verbal  •■etention  by  the  president  Pixtey 
V.  Western  Pic.  R.  Co..  33  Cal.  183. 

If  the  president  ot  a  corporation  clearly 
exceeds  h:.>  authority  in  making  a  contract, 
it  is  not  bmd.ng  unless  ratified  by  the  cor- 
poration, bu'  such  ratification  may  be  by 
express  assent,  f>r  by  acts  or  conduct  of  the 
corporation  inconsistent  with  any  other 
supposition  than  that  it  intends  to  adopt  the 
contract  made  in  its  name.  We/trkane  v. 
Nashville,  C.  <S-  St.  L.  R.  Co.,  4  A'.  Y.  S.  R. 
541,  42  Hun  660. 

In  Older  to  effect  a  lease  of  the  property 
ot  a  corporation,  which  had  been  authorized 
by  '-  vote  of  the  directors,  it  was  necessary 
thfiL  a  replevin  bond  should  be  given  by  the 
corporation  to  replevy  certain  portions  of 
such  property  then  under  attachment,  and 
this  bond  was  executed  by  and  in  the  name 
o!  the  corporation  by  its  president,  a  ma- 
jority of  the  directors  being  aware  of  the 
execution  of  the  bond,  and  the  corporation 
by  this  means  obtained  possession  of  the 
property.  Held,  that  it  was  no  defense  to* 
an  action  on  the  bond  against  the  corpora- 
tion that  no  vote  had  been  passed  by  the 
(lirtctors  authorizing  its  execul  on  or  con 


ferring  npon  the  president  authority  to  exe- 
cute It.  Neither  was  it  any  defense  to  such 
a  bond  that  the  seal  attached  to  it  as  the 
seal  of  the  corporation  was  not  its  usual  and 
regularly  adopted  corporate  seal.  Middle- 
bury  Bank  v.  Rutland  <&-  W.  R.  Co.,  30  Vt. 
159.— Reviewed  in  State  ex  rel.  v.  Smith, 
48  Vt.  266. 

10.  Liability  to  company.— Where 
the  president  ol  a  company  sues  to  recover 
salary,  the  company  cannot  set  up  as  a  set- 
ofll  or  as  damages  the  wrongful  expenditure 
of  the  company's  funds  by  him  for  counsel 
fees,  if  It  appears  that  he  acted  for  the  com- 
pany in  good  faith  and  did  only  what  the 
directors  should  have  authorized,  though  it 
was  his  duty  to  have  consulted  the  directors 
in  incurring  the  expense.  Davis  v.  Memphis 
City  R.  Co.,  22  Am.  &*  Eng.  R.  Cas.  i,  22 
Fed.  Rep.  883. 

Plaintiff  company,  through  its  directors, 
passed  a  resolution  intrusting  its  president 
with  certain  bonds  for  the  purpose  cf  sell- 
ing them  at  a  certain  price,  but  the  presi- 
dent loaned  them  to  an  individual  to  enable 
him  to  raise  money  to  pay  for  certain  bonds 
of  the  company  which  he  had  subscribed  for 
and  had  not  been  able  to  pay.  Held,  that 
the  resolution  furnished  the  measure  of  the 
president's  authority  as  to  the  disposition  of 
the  bonds,  and  that  his  act  amounted  to  a 
conversion,  without  reference  to  his  general 
powers  as  president.  Second  Ave.  R.  Co.  v. 
Mthrbach.  \y  J.&^  S.  (N.  Y.)  267. 

The  president  of  a  corporation  was  au- 
thorized lO  raise  money  for  the  company  on 
his  personal  note  secured  by  the  bonds  of 
the  company,  but  he  gave  his  note  secured 
by  bonds  and  by  other  securities  owned  by 
a  thud  person,  and  paid  over  to  the  com- 
pany a  portion  of  the  money  and  the  bal- 
ance to  such  third  person  Held,  that  his 
act  amounted  to  a  conversion.  Second  Ave. 
R.  Co.  V.  Mehrbach,  18/.  <S-  S.  (N.  Y.)  i.- 
FoLLOWiNG  Laverty  v.  Snethen,  68  N.  Y. 
522. 

11.  Liability  to  third  persons.— 
Purchaseri  o!  railroad  bonds  cannot  main- 
tain a  personal  suit  agaii^st  the  president  of 
the  company  for  losses  through  'laidalent 
repiesei^tdiions  contained  in  circulars  sent 
out  by  him  ai.  president,  which  induced  the 
purchase.  Van  lVee>  v.  Winiton,  24  Am. 
&*  Eng.  R.  Cas.  179,  11 ;;  U  S.  228, 6  Sup.  Ct. 
Rep.  22. 

Persons  hold'ng  bon.Hs  ''f  %  lailroad.  se- 
cured by  a  mortgage  on  th.?  railroad  prop* 


1073 


PRESIDENT,  12-14. 


Ui 


erty,  cannot  maintain  a  suit  against  the 
president  of  tlie  company  (or  diverting 
funds  from  their  proper  use.  If  such  has 
been  done,  lie  is  answerable  alone  to  the 
company  and  its  stockholders.  Van  Wtel 
V.  IVhiston,  24  Am.  &^  Etig.  R.  Cas.  179,  115 
U.  S.  228,  6  Sup.  a.  Rep.  22. 

Where  the  president  and  active  manager 
of  a  railroad  corporation  procures  donations 
of  property  to  himself  in  trust  for  the  com- 
pany, by  means  of  an  exercise  of  oppressive 
power,  he  will  hold  the  property  in  trust  for 
the  donors,  and  not  for  the  company. 
Union  Pac.  R.  Co.  v.  Durant,  3  Dili.  ( U.  S.) 

Where  a  railroad  company  deposits 
bonds  with  its  president  to  be  held  as  se- 
curity for  notes  which  certain  persons  had 
intrusted  with  the  company,  the  president 
IS  personally  liable  for  the  trust,  independent 
oi  his  financial  character,  and  cannot  set  up 
a  defense  that  he  was  directed  by  the  com- 
pany to  make  another  disposition  of  the 
bonds.     Wilkinson  v.  Stewart,  30  ///.  48. 

12.  for  personal  liijuries.— The 

president  of  a  corporation  is  not  made 
liable  for  a  personal  injury  merely  by  trans 
mitting  an  order  of  the  corporation  to  a 
servant  who  in  executing  it  uses  illegal 
lorce ;  but  if  the  order  is  issued  by  him  on 
his  own  responsibilicy,  he  is  liable.  He-wett 
V.  Swift,  3  Allen  {Mass.)  420. 

13.  Salary. — One  suing  to  recover  sal- 
ary as  president  of  a  railway  corporation 
must  show  that  he  was  such  president  de 
Jure.  It  is  not  enough  to  show  that  he  was 
de  facto  president.  Waterman  v.  Chicago 
<&-  /.  R.  Co.  34  ///.  App.  268 ;  affirmed  in 
139///.  658.  29  A'.  E.  Rep.  689.— Quoting 
AND  FOLLOWING  People  ex  rel.  v.  Weber, 
86  111.  283. 

Where  a  president  of  a  railroad  only  per- 
formed the  ordinary  duties  of  the  office, 
without  his  salary  being  previously  fixed — 
held,  that  he  could  not  recover  even  after 
an  auditing  committee  of  the  company  had 
drawn  an  order  for  his  salary.  Gridley  v. 
Lafayette,  B  &*  M.  R.  Co.,  71  ///.  200.— 
Quoting  Kilpatnck  v.  Penrose  Ferry 
bridge  Co.,  49  Pa.  Si.  121. 

Where  the  action  is  to  recovei  ihe  salary 
of  the  president  of  defendant  corporation,  a 
pita  IS  bad  wnich  sets  up  a  resolution  that 
the  salary  oi  the  president  was  to  be  paid 
monthly  out  of  any  money  that  came  into 
the  hands  ot  the  treasurer  from  the  sale  of 
bonds,  as  iuch  resolution  did  not  create  a 


condition  precedent  to  the  payment  of  the 
salary.  Indianapolis,  E.  R.  »S>»  S.  W.  R,  Co. 
V.  Hyde.  122  Ind.  188,  23  A/  E.  Rep.  706 

Where  the  president  of  a  company  under- 
takes to  perform  services  for  the  company 
not  strictly  within  the  line  of  his  duties  as 
president,  such  as  superintending  the  con- 
struction of  a  building  he  should  require  a 
stipulation  lor  pay,  if  ha  expects  any,  He 
has  no  right  to  employ  himsoll  as  master 
builder,  then  expect  pay.  Levnee  v.  Shreve- 
port  City  R.  Co ,  27  La.  Ann.  641. 

Plaintiff  was  president  ol  a  railway  com- 
pany from  1869  to  18/5.  In  1871  he  became 
a  member  of  a  construction  company  to 
complete  the  road,  which  company  wss  to 
take  all  the  assets,  assume  the  debts  and  pay 
all  claims  and  expenses  ot  the  coiporat  on- 
In  1875  the  company  was  merged  m  another 
company  //«/</,  that  plaintiff  cculd  not  re 
cover  of  the  consolidated  company  for  his 
services  as  president  ol  the  orig  nal  com 
pany  in  procuring  the  rigit  of  way,  etc  ,  his 
construction  company  having  assumed  to 
pay  for  such  services.  Nebraska  R  Co.  v. 
Le>>,  8  A'eb.  2^\,  20  Am   Ry.  Rep.  3'>4. 

Where  a  railroad  company  contracts  with 
a  construction  company  to  pay  a  sum  stated 
10  the  president  of  the  railroad  company 
lor  his  salary,  such  contract  may  be  con 
sidered  by  the  jury  in  determining  an  U-suc 
between  a  president  subsequently  elected 
and  his  company  as  to  what  his  saiaty  was, 
but  the  president,  not  being  a  party  to  such 
contract,  is  not  bound  to  look  to  the  con- 
struction company  alone  for  payment,  even 
though  he  knew  ol  the  contract  when  he 
accepted  the  office  bowtn  v.  Carolina,  C. 
G.  &•  C.  R.  Co.,  34  So.  Car.  217.  13  6  £. 
Rep.  421. 

14.  Transfer  01  corporate  prop- 
erty to  successor  lu  office.— N.  Car. 
Act  of  Feb.  16.  1871,  requiring  'ihe  piesi- 
dent  and  dirertois  of  the  several  railroad 
companies  ol  this  state,  upon  demand,  to 
account  with  and  transier  to  their  succes- 
sors all  the  money,  books,  papers,  and 
choses  in  action  belonging  to  such  co.t  - 
pany,"  is  sufficiently  geneial,  taken  by  itself, 
to  embrace  bends  of  the  state;  but  thr  act 
must  be  construed  in  connection  with  two 
other  acts,  v  /.  of  Feb.  5,  1870,  and  of 
March  8,  1870.  Thus  construed,  the  acts  of 
Feb.  3,  1870,  and  ol  March  8,  1870,  dispose 
ol  the  bond  known  as  special  tax  bonos 
and  the  act  of  187'  has  reference  onW  to 
"money    choses    in  action,  prop'.riy,  and 


PRESS   OF   BUSINESS— PRESUMPTIONS. 


1073 


!nt  of  the 
IV.  R.  Co. 

706 
ny  under- 
company 
duties  as 
the  con- 
requiiC  a 
any.  He 
as  niastei 
v-  Shreve- 

lwa>  corn- 
he  becarr>e 
)mpany  to 
ny  was  to 
ts  and  pay 
>tporal  on- 
in  another 
uld  not  re 
iny  for  bis 
g  nal  com 
ay,  etc  .  his 
issjmed  to 
a  R   Co.  V. 

itrac»s  with 
,  suin  state  1 
d  company 
lay  be  con 
ing  an  issue 
ntly  elected 

salary  was, 
arty  to  such 

to  the  con- 
yment.  even 
ict  when  he 
Carolina,  C. 
17.  13  i)    £. 

•ate  prop- 
e.— N.  Car. 

;   'ihe  ptesi- 
;ral  railroad 

demand,  to 
heir  succea- 
papers,   and 

such  CO.T  - 
^en  by  itseif, 

but  tnf  act 
on  with  two 
870.  and  of 
1.  the  acts  of 
1870,  dispose 
I  tax  bonos 
encf  only  to 
rop'-riy.  ind 


, 


eflects  belonging  to  the  company."    Siate 
V.  Jones  67  A''.  Car.  21c, 

An  indictment  under  the  act  of  Feb.,  1871, 
cannot  be  sustained  against  a  former  presi- 
dent of  the  Western  R.  Co.  for  refusing  to 
transfer  to  his  successor  in  office  certain 
special  tax  bonds,  which  were  issued  under 
the  act  of  Feb.  3,  1S69,  and  which  came  into 
the  hands  of  said  former  president,  for  the 
use  and  benefit  of  the  company.  StaU  v. 
Jones,  67  A'.  Car.  210. 


PRESS  OF  BUSINESS. 

Delays  caused  by,  see  Carriage  of  Merchan- 
dise, 57. 

—  caused  by  unusual,  see  Carriage  of  Mer- 
chandise, 140. 


PRESUMPTIONS. 

Against  carrier  for  loss  of  baggage,  see  Bag- 
gage, O. 

in  cases  of  loss  or  injury,  see  Express 

Companies,  32. 

—  shipper's  assent  to  limitation  of  liability, 

see  Limitation  ok  Liability,  42. 
As  to  condition  of  car  as  regards  safety,  see 
Street  Railways,  333. 

—  — goods  carried,  see  Carriage  of 

Merchandise,  005. 

in  hands  of  final  carrier,  see 

Carriage  of  Merchandise,  053. 

intermediate  carrier, 

see  Carriage  of  Merchandise,  038. 

due  care  of  person  injured  at  crossing, 

see  Crossings,   Injuries,  etc.,  at,  341. 

place  where  animal  entered  on  track, 

see  Animals,  Injuries  to,  128. 

was  killed,  see  Animals,  Inju- 
ries to,  207. 

Facts  presumed  need  not  be  alleged  in 
pleading,  see  Employes,  Injuries  to, 
512. 

Generally,  see  Evidence,  110-132. 

In  actions  against  carriers  of  passengers,  see 
Carkiage  of  Passengeks,  581,  590. 

by  and  against  express  companies,  see 

Express  Companies,  87. 

for  causing  death,  see  Death  by  Wrong- 
ful Act,  231-233. 

damages  caused  by  fire,  see  Fires, 

257-277. 

injuries  caused    by  collisions,  see 

Collisions,  12,  13. 

to  employes,  see  EmplovAs,  Inju- 
ries ro.  023-030. 

passengers  by  derailment,  see 

Derailment,  4. 

trespatiera,  see  Trespassers, 

Injuries  to,  1 10. 
6  D.  R.  D.-68 


In  favor  of  general  verdict,  see  Trial,  102. 

the  award  of  damages,  see  Eminent 

Domain,  020. 

validity  of  amendment,  see  Plead- 
ing, 105. 

—  stock-killing  cases,  see  Animals,  Injuries 

10,  400-404. 
Of  acceptance  of  charter,  see  Charters,  O. 

—  attorney's  authority,  see  Attorneys,  11. 

—  citizenship  of  corporation,  see  Citizenship, 

etc..  2. 

—  competency  of  servants,  see  Fello\.  ^tR- 

VANTS,  400. 

—  consent  or  deed  from  landowner  from  long 

possession  by  company,  see  Eminent  Do- 
main, 207. 

—  dedication  from  public  user,  acquiescence, 

etc.,  see  Streets  and  Highways,  11. 

—  existence  of  relation  of  landlord  and  ten- 

ant, see  Landlord  and  Tenant,  1. 

—  knowledge  on  part  of  passenger  of  rules 

of  carrier,  see  Carriage  of  Passengers, 
07. 

—  loss  of  goods  while  in  carrier's  hands,  see 

Carriage  of  Merchandise,  107. 

—  negligence,  see  Animals,  Injuries  to,  84  ; 

Negligence,  OO-lOl. 

—  —  burden  of  proof  to  rebut,  see  Carriage 

of  Pas' J.NGERS,  504. 

from  accident  at  crossing,  see  Cross- 
ings, Injuries,  etc.,  at,  342. 

failure    to  account  for  goods,   see 

Carriage  of  Merchandise,  400. 

give  signal,  see  Animals,  In- 
juries to,  103. 

speed  at  crossings,  see  Crossings, 

Injuries,  etc.,  at,  188. 

time  of  existence  of  defect  in  fence, 

see  Fences,  80. 

in  actin  against  carrier  of  cattle,  see 

Carriage  of  Live  Stock,  147. 

— case    of  injury  to    passenger,   see 

Cable  Railways,  8. 

cases  of  collision  between  street- 
cars, see  Collisions,  20. 

not  raised  by  proof  of  loss  where  lia- 
bility is  limited,  see  Carriage  of  Mer- 
chandise, 405. 

—  —  of  initial  carrier  where   goods  reach 

destination  damaged,   see   Carriage  of 
Merchandise,  500. 

— person    injured    by  street-car,   see 

Street  Railways,  515. 

—  —  when  raised  by  proof  of  loss,  see  Car- 

riage of  Mbrchandise,  173,  178. 

by  fire,  see  Carriage 

of  Merchandise,  151. 

—  notice  from  lapse  of  time,  see  Animals,  In- 

juries 10,  143. 

—  payment  from  lapse  of  time,  see  Payment, 

8. 


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1074 


PRESUMPTIVE    EVIDENCE- PRIORITY. 


Of  payment  of  land  damages  from  lapse  of 
time,  see  Em  kent  Domain,  382. 

—  prejudice  from  erroneous  instructions,  see 

Appeal  and  Erkok,  *>0. 

—  presence  or  absence  of  contributory  neg- 

ligence,  see  Contributory  Negligence, 
102. 

—  regularity  in  court  below,  sec  Appeal  and 

Ekror.  2»-:I5. 
on  appeal,  see  Eminent  Domain,  895. 

—  shipper's  assent  to  bill  of  lading,  see  Bills 

of  Lading,  31. 
Right  of  trainmen  to  presume  that  person 
will  get  off  track,  see  Crossings,  Injuries, 

ETC.,  AT,  210. 

That    agent's    act   has   been   ratified,    see 
Agency,  110-113. 

—  company  discharged  its  duty,  burden  of 

proof  to  rebut,  see  Employes,  Injuries  to, 

503. 
has  knowledge  of  defective  appliance, 

see  EMPLOvfes,  Injuries  to    140. 
used  due  care  in  selection  of  servant, 

see  Fellow-servants,  488,  480. 

—  goods  are  delivered  by  carrier  in  good  con- 

dition,  see  Carriage  of    Merchandise, 
267. 

—  holder  of  bonds  is  a  bona  fide  purchaser, 

see   Municipal   and    Local  Aid,  308- 
375. 

—  injury  was  within  risks  assumed,  burden 

of  proof  to  tebut,  see  Employes,  Injuries 
TO.  594. 

—  person  killed  at  crossing  stopped,  looked, 

and   listened,   see    Crossings,   Injuries, 

ETC.,  at,  234. 
on  train  is  passenger  see  Carriage  of 

Passengers,  22. 
When  a  conveyance  will  be  presumed,  see 

Adverse  Possession   13. 
grant   will   be   presumed,    see    Land 

Grants,  9. 


PRESUMPTIVE  EVIDENCE. 

Collision  as  prima  facie  evidence  of  contribu- 
tory negligence,  see  Crossings,  Injuries, 
etc.,  at,  230. 

In  actions  for  damages  caused  by  fire,  see 
Fires,  257-277. 

injuries  by  negligence  of  fellow- 
servants,  see  Fellow-servants,  473. 

Of  capacity  of  foreign  corporation  to  contract, 
see  Cahriage  of  Merchandise,  753. 


PRICE. 
Decline  in,  as  an  element  of  damages,  see 

Carriage  of  Live  Stock,  158. 
Of  C  O.  D.  goods,  duty  of  carrier  to  collect, 

see  Carriage  of  Merchandise,  270. 


Of  goods  sold,  seller's  action  for,  see  Sales, 

12. 
—  rolling  stock,  lien  for,  see  Liens,  3. 


PRICE  LISTS. 

When  may  be  carried  as  baggage,  see  Bag- 
gage, 41 

PRIMA  FACIE  EVIDENCE. 

Admissibility  and  effect  generally,  see  Ani- 
mals. Injuries  to,  469-494. 

In  actions  against  carriers  of  passengers,  see 
Carriage  of  Passengers,  581,  590. 


PRINCIPAL. 

Agent  must  contract  in  name  of,  see  Agency. 

24. 
Knowledge  of  agent  when  imputed  to,  see 

Agency,  42,  43. 
Liability  of  agent  to.  see  Agency.  29-32* 
—   —   for    acts    of  agent,    generally,  see 

Agency,  37-44. 
torts  of  agents,  see  Agency,  71- 

105. 
Notice  to  agent  when  notice  to  see  Agency. 

:J9-41. 
When    bound    by    agent's    contracts,    see 

Agency,  45-70. 


PRINCIPAL    CAUSE. 
Challenge  to  jurors  for.  see  Trial,  31, 32. 

PRINCIPAL  DEBTOR. 

Notice  to,  of  attachment,  see  Attachment. 

etc.,  43. 
Who  may  be  sued  as,  see  Attachment,  etc., 

8-10. 


PRIORITY. 

Among  coupons  on  distribution  in  foreclosure, 
see  Mortgages,  272,  273. 

—  holders   of  land   warrants,    see    Public 

LANDS,  28. 

—  mortgages,  see  Receivers,  77. 
Ascertaining,   by  reference,  in  foreclosure, 

see  Mortgages  202. 
Between  conflicting   attachments,  see   At- 
tachment, etc.,  5. 

—  deeds  of  trust  and  other  liens,  see  Deeds 

of  Trust,  1 1 . 

—  executions  and  other  claims  and  liens,  see 

Execution,  16. 

—  junior  and  senior   surveys,  see    Public 

Lands,  27. 

—  land  grants,  see  Land  Grants,  6  ;  Public 

Lands,  36. 

—  mortgages  and  other  liens,  see  Mortgages. 

87-129. 


see  Sales, 

IS,  3. 

e,  see  Bag- 

RCE. 

ty,  see  Ani- 

V. 

sengeis,  see 

1.5»0. 

see  Agency. 
lUted  to,  see 

'.  29-32. 

enerally,  see 

Lgency,  71- 

see  Agency. 

>ntracts,    see 

BE. 

AL,  31.32. 

OR. 

Attachment. 

chment,  etc.. 


in  foreclosure, 
h 

I,    see    Public 

77. 

D  foreclosure, 

ents,  see  At- 
sni,  see  Deeds 
I  and  liens,  see 
s,  see    Public 

rrs,  5 ;  Public 
lee  Mortgages, 


: 


PRIVACY— PRIVATE   RAILROADS,  1. 


1075 


Between    mortgages   of  rolling  stock,  see 
Mortgages,  52. 

—  rival  locations  of  route,  see  Location  of 

Route,  25-31. 

—  tax  lien  and  other  encumbrances,  see  Tax- 

ation. 307. 
Of  claims  for  wages,  see  Emfloy£s,  lO. 

—  coupons,  see  Coupons,  1 1. 

—  debts  due  to  government   railroads,  see 

Government  Railroads,  5. 
in  cases  of   receivership,  see    Mort- 
gages, 228. 

—  grants  of  right  of  way  over  public  lands 

over  other  conveyances  and  titles,  see 
Public  Lands,  40. 

—  judgments,  see  Judgment,  38. 

—  laborers'  claims  in  insolvency,  see  Insol- 

vency, 7. 

—  mortgages   over    equities   subsequently 
arising,  see  Mortgages,  107-12&. 

—  passage  at  crossing  of  railways,  see  Cross- 

ing of  Railroads,  75. 

—  receivers'  certificates,  how  questioned,  see 

Receivers,  103. 
over  other  liens,  see  Receivers,  90. 

—  third  parties'  claims  in  attachment,  see 

Attachment,  etc.,  64. 


PEIVACY. 

Measure  of  damages  for  interference  with, 
see  Eminent  Domain,  1195. 

Of  dwellings,  measure  of  damages  for  inva- 
sion of,  see  Elevated  Railways,  131. 


PRIVATE  ACTS. 

Admissibility  and  effect  of,  as  evidence,  see 

Evidence,  239. 
Construction  of,  see  Statutes,  49. 
Judicial  notice  of,  see  Evidence,  111. 


PRIVATE  CARRIERS. 

Distinguished  from  carriers  of  passengers, 

see  Carriage  of  Passengers,  5. 
Who  are,  see  Carriage  of  Merchandise,  4. 


PRIVATE  CARS. 

1.  Rii^ht  of  owner  to  recover  for 
personal  injury. — The  owner  of  a  pri- 
"ate  car  arranged  to  have  his  car  attached 
to  a  regular  passenger  train,  agreeing  that 
he  would  attend  to  the  brakes  on  his  own 
car.  HeM,  that  this  did  not  make  him  an 
employ6  of  the  company  so  as  to  prevent 
a  recovery  for  a  personal  injury.  Lacka- 
wanna &*  B.  R.  Co.  V.  Chenewith,  52  Pa,  St. 
382. 

2.  AHHuniption  by  owner  of  «  nil 
risks." — A  company  agreed  to  haul  cars  of 


a  circus  according  to  a  certain  schedule  of 
time,  and  for  a  price  less  than  the  regular 
rates,  the  proprietors  agreeing  at  their  own 
expense  to  load  and  unload  the  cars,  to  save 
the  defendant  harmless  from  all  claims  for 
damages  to  persons  and  property  however 
accruing,  and  to  "assume  all  risk  of  accident 
from  any  cause."  An  accident  occurred  by 
one  of  the  cars  running  off  the  track  by 
reason  of  its  trucks  not  being  in  proper 
condition,  and  an  employe  of  the  proprie- 
tors who  was  riding  in  one  of  the  cars  was 
injured.  //^/</,  that  the  employe  could  not 
recover,  as  defendant  had  no  control  over 
the  condition  of  the  cars  and  no  power  to 
interfere  with  them.  Robertson  v.  Old  Col- 
ony R.  Co.,  156  Mass.  525,  31  N.  E.  Rep.  650, 


PRIVATE  CORPORATIONS. 
Distinguished  from  public,  see  Corporations, 


PRIVATE  CROSSINGS. 

Cost  of,  as  an  element  of  land  damages,  see 

Eminent  Domain,  676. 
Duty  to  fence  track  at,  see  Fences,  57. 
give  signals  at,  see  Crossings,  Injuries, 

etc.  ,  A1'.  1 1 5,  1 16. 
look  and  listen  at,  see  Crossings,  Inju- 
ries, etc.,  at,  281. 
Injuries  to  children  at,  see  Children.  Injuries 

to,  22. 
persons  and  teams  at,  see  Crossings, 

Injuries,  etc,  at,  5. 
Power  of  commissioners  to  provide  for,  see 

Railway  Commissioners,  23. 
Right  of  landowner  to  construction  of,  see 

Eminent  Domain,  144. 


PRIVATE  INDIVIDTTALS. 
Power  of,  to  condemn  lands,   see   Eminent 
Domain,  83. 


PRIVATE  RAILROADS. 

Private  branch  lines,  see  Branch  and  Lat- 
eral Roads,  9. 

1.  Concleninntion   of  lands  for.*— 

When,  in  proceedings  to  condemn  lands  for 
a  private  railroad,  the  judge,  under  the  Emi- 
nent Domain  Act,  enters  an  interlocutory 
order  granting  the  petitioners  possession  of 
the  land  pending  the  proceedings,  it  is  not 

*  Authority  of  small  railroad  companies  pro- 
mWd  partially  as  private  enterprises  to  exer- 
cise power  of  eminent  domain,  see  note,  44  Am. 
&  Eng.  R.  Cas.  25. 


\-t 


1076 


PRIVATE    RAILROADS,  2,  3. 


error,  when  it  sustains  a  general  demurrer  to 
the  petition,  to  vacate  such  rule,  as  the  stat- 
ute leaves  the  matter  of  granting  such  a 
rule  in  the  first  place  entirely  in  the  discre- 
tion of  tlie  court.  Pfople  ex  rel.  v.  District 
Court,  1 1  Colo.  147,  17  Pac.  Rep.  298. 

Where,  in  proceedings  under  the  Eminent 
Domain  Act  to  condemn  lands  for  a  private 
railroad,  the  judge  vacates  ai  order  granting 
the  petitioners  possessio  p  land  pend- 

ing the  proceedings,  '1.  •■■.y.    'le  said  to 

have  abused  his  discret  )i  .1  ..  it  appears 
that  the  right  to  condemn  the  land  in  con- 
troversy did  not  exi";'.  People  ex  rel.  v. 
District  Court,  \  i  Colo.  147,  17   '^ac.  /"         98. 

Where  a  petition  for  a  private  riii  rad 
has  been  filed  and  granted  upon  a  survey 
which  lays  down  the  grades,  courses,  and 
distances,  the  location  cannot  be  changed 
after  the  damages  have  been  assessed,  except 
upon  a  new  petition.  Lance's-  Appeal,  55 
Pa.  St.  16.— Approved  and  quoted  in 
Lyon  V.  McDonald,  47  Am.  &  Eng.  R.  Cas. 
217,  78  Tex.  71 

2.  Power  of  city  to  grant  franchise 
for.*— A  railroad  corporation  is  not  neces- 
sarily a  public  corporation  such  as  may  use 
a  city's  street,  because  it  is  connected  with 
a  grain  elevator  which  is  public  in  so  far  as 
that  its  charges  may  be  regulated  by  law. 
Mikesell  v.  Durkee,  36  Kan.  97,  12  Pac.  Rep. 
351 ;  former  appeal  34  Kan.  509,  9  Pac. 
Rep.  278.— Distinguishing  Munn  v.  Illi- 
nois, 94  U.  S.  113. 

Where  the  owners  of  a  mill  apply  to  a  city 
council  for  a  right  of  way  through  a  public 
alley  for  a  track  to  connect  with  a  regular 
railroad  track,  and  the  city  refuses  to  grant 
the  right,  a  grant  of  the  right  to  the  rail- 
road company  which  is  evidently  for  the 
sole  benefit  of  the  mill  owners,  who  con- 
struct the  track  at  their  own  expense,  is 
but  an  evasion,  and  the  owners  of  the  mill 
will  not  be  allowed  to  secure  for  themselves 
in  this  indirect  way  a  privilege  which  no 
citizen  would  be  allowed  to  secure  for  him- 
self directly.  Com.  v.  Frankfort,  92  Ky. 
149.  17  S.  iv.  Rep.  2i7. 

The  licensing  of  an  individual  to  occupy 
a  part  of  a  public  street  exclusively  for  his 
own  benefit  by  erecting  and  using  a  railroad 
for  the  transportation  of  rocks  and  gravel, 
is  not  among  the  powers  granted  to  the 

*  Abutting  owner  cannot  enjoin  the  construc- 
tion of  a  private  railroad  in  the  street  though  It 
be  a  nuisancr.  see  2$  Am.  &  Eng.  R.  Cas.  256, 
abstr. 


city  council  of  Portland  by  the  ninth  section 
of  its  charter  or  by  any  other  statute. 
Green  v.  Portland,  32  Me.  43 1 . 

The  common  council  of  a  city  has  no  au- 
thority, under  the  general  power  to  regulate 
streets,  to  grant  to  an  individual  a  license  to 
lay  a  railroad  track  across  a  public  street  for 
his  own  use.  Streets  and  highways  are  in- 
tended for  the  common  and  equal  benefit  ui 
all  citizens,  to  which  end  they  must  be  regu- 
lated.   State  V.  Trenton,  36  N.  J.  L.  79. 

The  city  of  New  York  has  no  power  to 
contract  with  individuals  for  the  right  to 
construct  and  operate  a  street  railroad  for 
an  indefinite  period  for  private  gain.  Mil- 
hau  V.  Sharp,  27  A".  F.  611  ;  affirming  7 
Abb.  Pr.  220,  28  Barb.  228,  17  Barb.  435. — 
Following  Davis  v.  Mayor,  etc.,  of  N.  Y., 
14  N.  Y.  506.  Quoting  Williams  v.  New 
York  C.  R.  Co.,  16  N.  Y.  97. 

A  resolution  attempting  to  confer  such  a 
right  is  not  a  license,  but  a  contract,  and  is 
void  as  attempting  to  confer  powers  which 
the  city  holds  only  in  trust.  Milhau  v. 
Sharp,  27  N.  Y.  611  ;  affirming  7  Abb.  Pr. 
220,  28  Barb.  228,  17  Barb.  435,— APPROV- 
ING People  ex  rel.  v.  Sturtevant,  9  N.  Y.  273. 
—Applied  in  People  v.  O'Brien,  36  Am,  & 
Eng.  R.  Cas.  78,  in  N.  Y.  1.  18  N.  E.  Rep. 
692,  19  N.  Y.  S.  R.  173.  Followed  in 
Mayor,  etc.,  of  N.  Y.  v.  New  York  &  S.  I. 
Ferry  Co. ,  8  J.  &  S.  (N.  Y.)  232 ;  Forty-second 
St.  &  G.  S.  F.  R.  Co.  V.  Thirty-fourth  St.  R. 
Co.,  20  J.  &  S.  252.  Quoted  in  Appeal  of 
North  Beach  &  M.  R.  Co.,  32  Cal.  499; 
Henderson  v.  New  York  .C.  R.  Co.,  78  N. 
Y.  423. 

3.  Liability  for  personal  injuries. 
— A  railroad  company  when  backing  its  cars 
upon  a  private  track  laid  by  its  owner  by 
permission  of  the  city  across  a  public  street, 
at  the  request  and  for  the  convenience  of 
such  owner,  is  not  engaged  in  the  perform- 
ance of  its  own  business  under  its  charter, 
but  is  employed  in  a  specijil  and  temporary 
service,  differing  in  no  legal  sense  from  what 
might  have  been  rendered  by  men  or  horses 
pushing  or  drawing  cars  for  the  same  person 
on  his  own  premises.  Mc  Williams  v.  De- 
troit C.  Mills  Co.,  31  Mic/t.  274.— FOLLOW- 
ING Detroit  v.  Corey,  9  Mich.  165. 

Persons  having  a  contract  to  erect  a  sea 
wall  operated  a  temporary  railway  to  carry  , 
sand  and  other  material.  PlaintifT,  who  was 
driving  a  team,  was  injured  while  hauling 
rock  for  the  wall  for  a  subcontractor,  by  his 
team  taking  fright  while  crossing  the  track. 


I'RIVATE   USE— PRIVATE   WAYS,  1,  2. 


107 


th  section 
r    statute. 

has  no  au- 
;o  regulate 
I  license  to 
c  street  for 
,ys  are  in- 
1  benefit  uf 
st  be  regu- 
L.  79. 

power  to 
le  right  to 
ailroad  for 
;ain.  Mil- 
affirming  7 
\irb.  435.— 

of  N.  Y., 
ms  V.  New 

nfer  such  a 
ract,  and  is 
wers  wiiich 
Mil/tau  V. 

7Abh.  Pr. 
— Approv- 
9  N.  Y.  273. 
1,  36  Am.  & 

N.  E.  Rep. 

LLOWED   IN 

ork  &  S.  I. 
brty-second 
ourth  St.  R. 
N  Appeal  of 
2  Cal.  499; 
.  Co.,  78  N. 

1  injuries. 

king  its  cars 
ts  owner  by 
mblic  street, 
ivenience  of 
he  perform- 
its  charter, 
d  temporary 
se  from  what 
len  or  horses 
same  person 
'Hams  V.  De- 
l.— FOLLOW- 
r65. 

>  erect  a  sea 
way  to  carry  , 
itiiT,  who  was 
'hite  hauling 
ractor,  by  his 
ng  the  track» 


Held,  that  defendant  was  bound  to  exercise 
ordinary  care  for  the  safety  of  employes,  in- 
cluding subcontractors  and  their  employes, 
though  the  road  had  been  constructed  for 
private  use  ;  hence  it  was  not  error  for  the 
court  to  refuse  to  instruct  the  jury  that  the 
crossinj;  was  not  on  a  public  street.  Carra- 
her  V.  San  Francisco  Bridge  Co.,  100  Cal. 
177.  34  Pac.  Rep.  828. 

Where  an  employe  is  injured  while  cross- 
ing tiie  track  of  a  private  .-ailway,  a  verdict 
in  favor  of  plaintiff  will  not  be  disturbed  on 
appeal  where  there  is  a  substantial  conflict 
both  as  to  the  negligence  of  defendant  and 
as  to  tiie  contributory  negligence  of  plain- 
tiff. Carraher  v.  San  Francisco  Bridge  Co., 
100  Cal.  177,  34  Pac.  Rep.  828. 

Where  the  owners  of  a  private  railroad 
track,  occasionally  employed  by  a  railroad 
company  for  a  special  use,  have  negligently 
sudered  it  to  remain  in  a  dangerous  condi- 
tion for  such  use,  though  trains  are  run 
upon  it  slowly  and  carefully,  the  company 
voluntarily  running  its  trams  thereon  is  lia- 
ble for  an  injury  to  one  of  its  own  employes 
caused  proximately  by  such  negligence. 
Stetler  v.  Chicago  &*  N.  W.  R.  Co.,  49  Wis. 
609,  6  N.  W.  Rep.  303,  21  Am.  Ry.  Rep.  89. 


PRIVATE  USE. 

Of  side  tracks,  see  Side  Tracks,  5. 
Property  cannot  be  taken  for,  see  Eminent 
Domain,  170-182. 


PRIVATE  WAYS. 

Action  for  damages  for  obstruction  of,  see 
Eminent  Domain,  005. 

Obstruction  of,  as  an  element  of  land  dam- 
ages, see  Eminent  Domain,  719. 

Prosecutions  for  obstructing,  see  Criminal 
Law,  34. 

I.  OENEKAL  PRINCIPLES 1077 

II.  REMEDIES  FOR  INTERFERENCE  OR 
OBSTRUCTION 1079 

I.  GENERAL  PRINCIPLES. 

1.  Creation  of,  genernlly.— A  town 
voted  to  change  the  location  of  a  private 
road  which  belonged  to  it,  and  appointed 
the  selectmen  to  attend  to  the  matter.  A 
majority  of  them  accepted  a  license  from  a 
railroad  company,  revocable  at  pleasure,  to 
place  the  road  on  the  company's  right  of  way. 
Held:  (i)  that  they  had  no  authority  to 
bind  the  lowii  by  such  an  acceptance  ;    (2) 


that  if  the  town  knowingly  used  the  way,  it 
could  not  acquire  a  right  by  prescription 
where  the  company  had  no  knowledge  of 
any  such  claim,  but  supposed  that  the  town 
was  using  the  way  under  the  license.  Deer- 
field  v.  Connecticut  River  R,  Co.,  144  Mass. 
325,  4  A'.  Eng.  Rep.  189,  i\  N.E.  Rep.  105. 

The  use  of  the  words  "  on  condition,"  or 
words  of  a  like  import,  will  not  necessarily 
create  a  conditional  estate.  And  when  a 
deed,  conveying  for  a  pecuniary  considera- 
tion a  right  of  way  to  a  railway  company, 
contains  a  condition  that  the  company  shall 
establish  and  maintain  a  reasonable  passway 
and  wagon  road  across  its  railroad,  but  there 
is  nothing  further  in  the  deed  which  is  in- 
dicative of  an  intention  to  make  the  com- 
pliance with  such  provision  a  condition  sub- 
sequent to  the  grant,  such  provision  may 
be  construed  as  a  part  of  the  consideration 
for  the  deed  and  as  the  reservation  of  a 
mere  easement  right.  Stilwdl  v.  St.  Louis 
&*  H.  R.  Co.,  ^9  Mo.  App.  221.— Quoting. 
Morrill  v.  Wabash.  St.  L.  h  P.  R.  Co.,  96 
Mo.  174. 

A  right  of  way  cannot  be  granted  by  deed, 
estoppel,  or  otlierwise  by  any  one  but  the 
landowner;  a  mere  equitable  owner  of  an 
undivided  interest  in  a  possible  reversion 
cannot  give  it,  and  it  cannot  well  exist  over 
an  undivided  interest  alone.  Tapertv.  De- 
troit, G.  H.  <S-  M.  R.  Co.,  II  Am.  6-  Eng. 
R.  Cas.  413.  50  MicA.  267,  15  A'^.  IV.  liep.  450. 

2.   by  prescription  —  Adverse 

nser. — Mass  St.  1861,  ch.  100,  providing 
that  the  occupancy  of  land  belonging  to  a 
railroad  shall  not  create  any  right  by  reason 
thereof,  does  not  prevent  the  acquisition  of 
a  right  to  a  private  way  across  the  railroad 
by  twenty  years'  use  thereof.  Fisher  v. 
New  York  &•  N.  E.  R.  Co.,  17  Am.  &'  Eng. 
R.  Cas.  80,  135  Mass.  107.— Revif.wed  in 
Turner  v.  Fitchburg  R.  Co.,  35  Am.  &  Eng. 
R.  Cas.  317,  145  Mass.  433. 

Prior  to  the  passage  of  Mass.  Act  of  1853, 
ch.  414,  §  4,  imposing  a  penalty  upon  any 
person  who  wrongfully  stands  or  walks  on  a 
railroad  track,  a  private  right  of  way  across 
a  railroad  could  not  be  acquired  by  prescrip- 
tion. Gay  V.  Boston  &^  A.  R.  Co.,  141  Mass. 
407,  6  A^.  E.  Rep.  236. 

A  right  of  way  by  prescription  cannot  be 
acquired  over  a  railroad  whose  location 
runs  through  the  land  of  the  person  claim- 
ing such  right  while  the  corporation  neglects 
to  comply  with  a  decree  of  the  county  com- 
missioners, under  Mass.  Rev.  St.  ch.  39,  § 


1078 


PRIVATE   WAYS,  3. 


6i,  made  upon  the  petition  of  such  land- 
owner that  the  corporation  give  security  for 
the  payment  of  damages  for  the  land  taken, 
and  no  payment  or  settlement  of  such  dam- 
ages is  made.  Suu't/t  v.  New  York  &*  N.  E. 
J\\  Co.,  25  Am.  <S»«  Eng.  A\  Cas.  20;,  142 
Mass.  21,6  N.E.  Rep.  842. 

To  acquire  a  right  of  way  over  the  land  of 
another  by  prescription,  the  user  must  be 
adverse  and  acquiesced  in  by  the  owner  of 
the  land.  It  is  not  necessary  that  a  claim  of 
right  be  expressly  made,  or  that  the  acqui- 
escence be  declared.  Deerfield  v.  Connecti- 
cut River  R.  Co.,  144  Mass.  325,  4  N.  Eng. 
Rep.  189.  II  N.  E.  Rep.  105. 

Where  a  town  claims  a  private  way  to  a 
cemetery  by  prescription  over  the  lands  of 
a  railroad  company,  any  acts  of  the  inhabi- 
tants of  the  town  in  passing  over  the  way, 
or  the  acts  of  the  town  in  repairing  it,  are 
competent  evidence  as  tending  to  prove  a 
prescriptive  right.  Deerfield  v.  Connecticut 
River  R.  Co.,  144  Mass.  325,  4  A'.  Eng.  Rep. 
189,  II  N.  E.  Rep.  105. 

Where  a  railroad  is  located  on  a  right  of 
way  three  rods  wide,  and  a  private  way  is 
claimed  across  the  location,  and  the  right  of 
way  is  afterwards  widened  to  five  rods,  the 
adverse  user  started  while  the  right  of  way 
was  but  three  rods  cannot  be  ripened  by 
use  as  to  the  right  of  way  as  widened. 
Abbott  V.  New  York&^N.  E.  R.  Co.,  33  Am. 
&•  Eng-.  R.  Cas.  146,  145  Mass.  450,  5  N. 
Eng.  Rep.  527,  1$  N.  E.  Rep.  91. 

On  the  issue  whether  a  right  of  way  by 
prescription  has  been  acquired  over  the  lo- 
cation of  a  railroad,  an  agreed  statement  of 
facts  stated  that  plaintiff  and  his  grantors 
had  used  the  way  openly,  adversely,  and 
uninterruptedly  for  more  than  twenty  years. 
f/etd,  that  the  court  might  assume  that  de- 
fendant had  knowledge  of  the  acts  of  user. 
Turner  v.  Fitchburg  R.  Co.,  35  Am.  &*  Eitg. 
R.  Cas.  317,  145  Mass.  433,  14  iV.  E.  Rep.  627. 

The  proprietor  of  lands  may  by  open,  ad- 
verse, and  uninterrupted  use  for  more  than 
•weiity  years  acquire  a  right  of  way  by  pre- 
scription over  the  track  of  a  railroad,  not- 
withstanding the  existence  of  statutes  which 
prohibit  under  penalty  the  traveling  upon 
or  crossing  of  a  railroad  without  the  con- 
sent of  the  company.  Turner  v.  Fitchburg 
R.  Co.,  35  Am.  &»  Eng.  R.  Cas.  317,  145 
Mass.  433,  14  N.  E.  Rep.  627.  —Reviewing 
Fisher  v.  New  York  &  N.  E.  R.  Co.,  135 
Wass.  107. 

Evidence  that  for  more  than  forty  years 


an  individual  had  crossed  a  railroad  track 
without  objection,  and  that  the  company 
had  directly  recognized  the  crossing  by  dif- 
ferent acts,  but  that  for  thirty-seven  years  he 
had  only  crossed  on  foot,  is  sufficient  to 
justify  a  finding  that  he  enjoyed  a  right  of 
way  at  the  crossing  for  passage  on  foot,  by 
grant,  reservation,  or  prescription.  Fitch- 
burg R.  Co.  V.  Frost,  147  Mass.  ii8,  6  N. 
Eng.  Rep.  374,  16  N.  E.  Rep.  773. 

Evidence  that  for  ten  years  a  railroad 
company  maintained  a  crossing  for  the  ac- 
commodation of  an  individual's  private  way, 
and  that  subsequently,  upon  a  change  of 
line,  the  company  agreed  to  maintain  the 
crossing  over  the  new  line,  is  suflficient  to 
support  a  finding  that  the  individual  had  a 
right  of  way  at  the  new  line  which  had 
previously  been  granted  or  reserved.  Fitch- 
burg R.  Co.  V.  Frost,  147  Mass.  118,  6  N. 
Eng.  Rep.  374.  16  A'.  E.  Rep.  TJi. 

In  building  its  road  defendant  company 
left  a  subway  under  a  trestle,  and  the  evi- 
dence showed  that  plaintiff,  the  owner  of 
the  land,  enjoyed  the  open  and  continuous 
use  of  the  subway  as  of  right  for  more  than 
twenty-five  years,  but  that  the  company  was 
proceeding  to  fill  it  up.  Held,  that  plain- 
tiff could  not  prevent  the  filling  of  the 
subway,  but  he  might  recover  damages. 
Wells  V.  Northern  R.  Co.,  35  Am.  <S-  Eng. 
R.  Cas.  314,  14  Ont.  594. 

In  such  case  plaintiff  was  entitled  to  as- 
sume that  there  was  a  reservation  of  the 
subway  in  the  deed  from  the  original  grantor 
of  the  right  of  way  to  the  company,  which 
deed  was  lost,  or  he  was  entitled  to  claim  the 
easement  under  the  prescription  act  from 
long  and  uninterrupted  enjoyment  as  of 
right.  Wells  v.  Northern  R.  Co.,  35  Am.  &* 
Eng.  R.  Cas.  314,  14  Ont.  594.— Distin- 
guishing Clouse  v.  Canada  Southern  K. 
Co.,  4  Ont.  28,  n  Ont.  App.  287,  13  Can. 
Sup.  Ct.  139. 

a.  Of  necessity.— If  the  owner  of  a 
tract  of  land  cut  off  from  any  public  high- 
way by  the  land  of  another  has  a  defined 
right  of  way  appurtenant  to  the  tract  over 
such  other  land  to  a  highway,  and.  upon  a 
railroad  corporation's  acquiring  title  to  the 
servient  estate  for  depot  purposes,  releases 
to  it  by  deed  all  his  title  and  luierest  in  the 
right  of  way,  describing  it  by  metes  and 
bounds,  including  •  all  rights  ol  crossing 
said  depot  lot  as  a  private  way,  it  any  I  have 
or  may  appear  to  have,"  no  right  of  way  by 
necessity  to  the  highway  will  remain  to  him 


PRIVATE   WAYS,  4-0. 


1079 


ilroad  track 

lie  company 

ising  by  dif- 

|ven  years  he 

iufficient   to 

|d  a  right  of 

on  foot,  by 

on.     Fitclt- 

Ii8.  6  N. 

13- 
a  railroad 
for  the  ac- 
private  way, 
change  of 
naintain  the 
sufficient  to 
vidual  had  a 
e  which  had 
ved.  Fitch- 
s.  ii8,  6  N. 

'3- 

int  company 

and  the  evi- 

le  owner  of 

i  continuous 

or  more  than 

company  was 

/,  that  plain- 

lling  of    the 

'cr    damages. 

4)11.  &*  Eng. 

ntitled  to  as- 
'ation  of  the 
ginal  grantor 
npany,  wliich 
i  to  claim  the 
ion  act  from 
yment  as  of 
0.,  35  Atn.  &* 
94.— DiSTiN- 
Southern  K. 
287,  13  Can. 

owner  of  a 
public  high- 
as  a  defined 
lie  tract  over 
and, upon  a 
f  title  to  the 
)3es,  releases 
iierest  in  the 
f  metes  and 
1  ol  crossing 
it  any  I  have 
ht  ol  way  by 
jmain  to  him 


out  of  the  right  of  way  thus  described  and 
released  ,  and  his  heirs,  upon  the  taking  of  a 
part  of  the  tract  for  railroad  purposes,  can- 
not recover  damages  for  the  deprivation  of 
a  right  of  way  by  necessity  to  the  portion 
of  the  tract  remaming  Richards  v.  Attle- 
borough  Branch  A'.  Co.,  153  A/ass,  120,  26  JV. 
E.  liep.  418. 

4.  Ill  lands  dedicated  to  public 
use,  hut  not  accepted.— Private  owners 
of  lots  can  get  no  better  right  of  way  over 
premises  on  which  the  lots  abut  than  that 
which  was  offered  to  the  public  for  accept- 
ance ill  the  dedication  thereof  for  public 
uses,  though  the  public's  non-acceptance  of 
an  ofler  to  dedicate  may  still  leave  private 
rights  of  way  in  the  land  so  offered.  Tapert 
v.  Detroit,  G.  H.  &>  M.  li.  Co.,  1 1  Am.  &* 
Eng.  R.  Cas.  413.  50  Mich.  267,  15  N.JV. 
Rep.  450. 

5.  Pass  to  purcliaser  of  dominant 
estate. — The  right  to  the  maintenance  of  a 
wagon  road  after  its  establishment  will  pass 
to  and  enure  to  the  benefit  of  subsequent 
purchasers  of  the  dominant  estate  as  an 
easement  running  with  the  land,  though  not 
mentioned  in  the  conveyances  to  such  pur- 
chasers. Stilwellw.  St.  Louis  &*  H.  R.  Co., 
39  Mo.  A  pp.  221. 

({.  May  be  used  for  wliat  purposes. 
— Where  land  to  whicli  access  is  had  by 
means  of  a  private  way  is  required  by  a 
railway  company  which  builds  cattle-pens 
thereon,  the  company  may  use  the  private 
way  for  passage  to  and  from  the  highway  of 
cattle  although  at  the  time  of  the  grant  the 
user  was  exclusively  for  agricultural  pur- 
poses. Finch  v.  Great  Western  R.  Co.,  L. 
R.  5  E.X.  D.  254,  41  L.  T.  731.  28  W.  R.  229. 

7.  Extinguishment,  generally.  — 
The  mere  fact  that  a  portion  of  the  public 
traveled  over  a  way  for  twenty  years  cannot 
make  it  a  highway.  The  road  must  not 
only  be  traveled  upon,  but  it  must  be  kept  in 
repair  or  taken  in  charge  and  adopted  by 
the  public  authorities.  Otherwise  it  is  but 
a  private  way.  Speir  v.  Ne^ti  Utrecht,  121 
A'.  Y.  420,  31  N.  V.  S.  R.  414,  24  A^.  E.  Rep. 
692;  modifying  49  Hun  294,  17  iV.  Y.  S.  R, 
727,  2  N.  K  Supp.  426. 

A  claim  of  a  highway  by  twenty  years'  user 
will  not  be  defeated  by  the  fact  that  a  rail- 
road is  laid  on  a  portion  of  the  highway 
where  it  was  open  to  travel,  except  so  far  as 
the  track  made  it  inconvenient  to  travel  on 
that  portion  of  the  highway.  Speir  v.  A'ew 
Utrecht,  i::i  A^.  Y.  420,  31  N.  Y.  S.  R.  414, 


24  JV.  E,  Rep.  692 ;  modifying  49  Hun  294, 
17  iV.  Y.  S.  R.  727.  2  X.  Y.  Supp.  426. 

A  private  railway  act  extinguishing  the 
right  of  way  over  footways  crossed  by  the 
railway  deals  only  with  the  public  rights  of 
way,  and  private  rights  secured  to  the  land- 
owner by  previous  agreement  with  the  com- 
par.y  are  not  taken  away  by  such  act.  Wells 
V.  London,  T.  6-  S.  R.  Co.,  37  L.  T.  302,  25 
W.  R.  325. 

8.  by  abandonment.  —  In   1889 

plaintiffs  sued  for  disturbing  their  right  of 
way,  acquired  by  grant,  across  defendant's 
railroad,  which  they  held  as  appurtenant  to 
lands  northerly  of  the  railroad.  It  was 
changed  somewhat  from  its  accustomed 
course  by  defendant  upon  the  southerly  side 
of  the  railroad,  as  follows  :  (i)  In  1881,  dig- 
ging cellars  and  erecting  four  houses  front- 
ing upon  a  highway  which  had  been  located 
in  1876,  and  which  structures  covered  about 
150  feet  'along  the  way;  (2)  in  1888,  exca- 
vating the  surface  along  which  the  way  ran 
to  the  depth  of  five  or  six  feet,  to  get  a 
practicable  grade  for  a  spur  track  leading 
from  the  main  track  to  a  gravel-pit  belong- 
ing to  defendant.  A  new  and  convenient 
way  passing  over  defendant's  land,  and  con- 
necting with  a  public  highway,  was  substi- 
tuted by  defendant  for  that  part  of  the  old 
way  interrupted  by  the  houses.  Plaintiffs 
made  no  claim  for  damages,  but  used  the 
substituted  way  for  seven  years.  Held,  that 
plaintiffs  had  accepted  the  new  way  in  lieu 
of  that  destroyed,  and  had  acquiesced  in  .the 
change  and  intentionally  surrendered  and 
abandoned  the  old  way  in  consideration  of 
the  new  one.  Fitspatrick  v.  Boston  &^  M. 
R.  Co.,  84  Me.  33,  24  Atl.  Rep.  432. 

II.  BEilEDIEB  FOR  INTERFEBEKCE 
OR  OBSTRUCTION. 

O.  liiifht  of  action,  g'cncrally. —  A 

railroad  company  may  lawfully  erect  a  depot 
or  station  building  on  its  right  of  way, 
though  in  doing  so  it  obstructs  a  private 
way.  Mass.  Gen.  St.  ch.  63,  §  46.  providing 
that  if  a  railroad  is  laid  out  across  a  turn- 
pike or  other  way,  it  shall  be  so  as  iiot  to 
obstruct  the  same,  does  not  apply  to  private 
ways.  Boston  Gas  Light  Co.  v.  Old  Colony  &» 
N.  R.Co.,  i^  Allen  (Mitss.)  444. — Ckiticis- 
ING  Boston  &  W.  R.  Corp.  v.  Old  Colony 
R.  Corp.,  12  Cush.  (Mass.)  605.— Dlstin- 
GUISHED  IN  New  Central  Coal  Co.  ?<  George's 
Creek  C.  &  I.  Co..  37  Md.  537.     Reviewed 


f 


h% 


m 


}% 


'm^'i. 


.     1080 


PRIVATE   WAYS,  10-12. 


IN  Veritiilya  v.  Chicago,  M.  &  St.  P.  R.  Co., 
66  Iowa  606. 

If  a  railroad  is  laid  out  through  a  man's 
land,  and  he  afterwards  gives  a  deed  of  the 
location  to  the  railroad  compatiy,  and  ac- 
quires a  right  of  way  across  the  location  by 
adverse  possession  for  more  than  twenty 
years,  he  may  maintain  an  action  of  tort  for 
the  obstruction  of  the  way  by  the  railroad 
corporation  ;  and  the  statute  of  1874,  ch.  372, 
§  105,  does  not  apply.  Fisher  v.  Ncm  York 
Sr*  N.  E.  A\  Co.,  17  Am.  <&*  Hftt,'.  A.  Las.  80, 
135  Mtiss,  107. 

Where  an  abutting  owner  sues  a  railroad 
company  for  depositing  snow  in  a  private 
way  opposite  his  house,  and  files  a  count 
that  he  was  hindered  and  deprived  of  the 
free  use  of  the  way  by  reason  of  the  snow, 
evidence  of  injury  to  his  property,  or  of  ob- 
structions not  injurious  to  him  personally, 
is  not  competent.  McDonnell  v.  Cambridge 
R.  C(7.,  151  Mass.  159.  23  A'.  E.  Rep.  841. 

10. under  EiiffliMli  niid  Cana- 
dian statutes.— The  KailwaysClauses  Act 
of  1845,  §§6,  55,  take  away  the  remedy  by 
action  for  interference  by  railways  with  a 
private  way,  except  where  special  damag3 
has  been  suffered.  IVa/iinsv.  Great  North- 
ern R.  Co.,  16  Q.  B.  961,  \sjur.  1127,  20  L. 
J.  Q.  B.  391. 

When  a  railroad  company  is  authorized 
to  build  its  road  along  a  certain  line,  an 
action  against  it  for  obstructmg  the  private 
way  of  an  abutting  owner  cannot  be  main- 
tained. If  any  recompense  is  given  to  the 
owner  of  such  an  easement,  it  is  by  arbitra- 
tion, unless  the  9th  clause  of  4  Wm.  IV. 
c.  29,  §  9,  applies,  and  then  the  action 
should  be  for  not  restoring  the  way  in  the 
manner  there  directed.  Carron  v.  Great 
Western  R.  Co.,  H  [/.  C.  Q.  B.  192. 

In  building  its  road  defendant  company 
left  a  subway  under  a  trestle,  and  the  evi- 
dence showed  that  plaintiff,  the  owner  of 
the  land,  had  enjoyed  the  open  and  contin- 
uous user  of  this  subway  as  of  right  ever 
since  1862,  but  that  defendant  was  proceed- 
ing to  fill  it  up.  Helii.  that  plaintiff  could 
not  prevent  the  filling  up  of  the  subway,  but 
he  was  entitled  to  damages.  Wells  v. 
Northern  R.  Co.,  35  ylin.  &*  Eng.  R.  Cas. 
314,  ixOnt.  594. 

11.  Form  of  action  — Case  — Tres- 
pass.—The  owner  of  mortgaged  land  sold 
to  a  railroad  company  ;i  purtion  of  it.  to  be 
used  for  its  track,  and  there  was  a  road  over 
the  part  conveyed,  the  right  to  which  had 


been  reserved  in  the  agreement  for  sale,  but 
was  omitted  in  the  conveyance.  In  an  action 
by  one  who  subsequently  purchased  the 
land  at  a  sheriff's  sale,  under  the  mortgage, 
against  the  company  for  obstructmg  tins 
way— heltl.  (i)  that  tlierightof  way  did  not 
originate  in  the  reservation  in  the  agree- 
ment, but  existed  previous  thereto,  and  was 
merely  reco<;nized  therein  ;  (2)  that  such 
rights  establislied  by  an  owner  over  his  own 
land  continue  unaffected  by  liens  or  sale, 
public  or  private  :  (3)  that  the  purchaser 
under  the  mortgage  was  entitled  to  the 
road,  and  to  an  action  on  the  case  against 
the  company  for  obstructing  it.  Rennsyl- 
I'ania  R.  Co.  v.  Jones,  50  Pa.  St.  417. — 
Quoted  in  Kemp  v.  Pennsylvania  R.  Co., 
1 56  Pa.  St.  430. 

The  general  statutes  of  a  state  prescrib- 
ing the  mode  in  which  the  amount  of  com- 
pensation to  which  the  owner  of  private 
property  may  be  entitled,  when  the  same  is 
taken  under  the  right  of  eminent  domain, 
apply  to  all  species  of  property  that  may  be 
so  taken,  including  a  private  right  of  way. 
The  only  remedy  of  the  owner  of  such  right 
of  way.  which  has  been  obstructed  by  the 
construction  of  a  railroad,  is  to  proceed  under 
such  general  statutes  to  obtain  compensa- 
tion,  and  not  in  an  action  for  damages. 
This  is  so  although  such  statutes  speak 
generally  of  "lands,"  this  term  including  all 
rights  and  easements  growing  thereout. 
Ross  v.  Georgia,  C.  &*  N.  R.  Co.,  46  Am.  &» 
Eng.  R.  Cas.  34.  33  So.  Car.  477,  12  S.  E. 
Rep.  loi.- Applying  Railroad  Com  rs  w. 
Columbia  &  G.  R.  Co.,  26  So.  Car.  353. 

The  owner  of  a  private  way  cannot  main- 
tain an  action  of  trespass  for  damages  for 
the  obstruction  of  such  way  by  a  railway 
company,  where  a  statute  prescribes  a  spe- 
cific penalty  lor  the  obstruction  by  a  railway, 
company  of  a  highway  or  other  way,  across 
which  Its  road  is  laid.  Ross  v.  Georgia,  C. 
&•  N.  R.  Co..  46  Am.  &•  Eng.  R.  Cas.  34,  33 
So.  Car.  477,  12  S.  E.  Rep.  101. 

12.  Wlio  may  sue.— The  person  who, 
for  the  time  being,  owns  a  private  road  in 
possession,  is  the  "  owner  "  of  such  road  and 
entitled  to  recover  penalties  for  its  inter- 
ruption under  the  Railways  Clauses  Act  of 
1845.  §  54.  Mann  v  Great  S.  <S-  Iv.  R.  Co.. 
9  Ir.  C.  L.  R.  105. 

If  a  railway  company  01  its  successor  de- 
stroys a  wagon  road  after  the  establishment 
of  it,  the  owner,  at  the  time,  of  the  land  to 
which  it  is  appurtenant,  has  a  right  of  ac- 


PRIVATE   WAYS,  13-17.— PRIVILEGED   COMMUNICATIONS.  1081 


tion  for  damages  agiiinst  tlie  wrong-doer ; 
and  after  this  right  of  action  has  once  ac- 
crued it  will  not  be  divested  by  a  subse- 
quent sale  of  tiie  land.  Stilwellv,  St.  Louis 
&*  H.  K.  Co.,  39  Afo.  App.  221. 

in.  and  wliu  may  not.— A  ten- 
ant of  a  farm  over  which  a  priv?.*-  road 
passes  cannot  sue  a  railway  com,  ..ny  for 
the  penalty  for  obstructing  such  road,  where 
the  statute  makes  such  penalty  "  payable  to 
the  owner."  CoUinson  v.  Newcastle  <S^  D.  R. 
Co.,  1  C.  6- A'.  546. 

14.  Sufllc'iviicy  of  notice  of  ob- 
Htrnction.— The  notice  of  an  obstruction 
of  a  private  way,  required  to  be  given  to  a 
railroad  by  N.  H.  Act  of  1847.  need  not 
specify  the  particulars  of  the  obstruction. 
Greenwood  v.   IVilton  K.  Co.,  23  N.  H.  261. 

15.  Pleading  —  DefenHes.  —  In  in 
action  for  obstructing  a  prescriptive  right 
of  way  across  the  location  of  defendant's 
railroad,  it  is  no  defense  that,  after  the 
way  was  used,  a  statute  was  passed  allow- 
ing the  corporation  to  relocate  its  road, 
and  for  that  purpose,  under  proper  pro- 
ceedings, to  take  lands,  in  the  absence  of 
evidence  that  such  proceedings  were  had. 
Turner  v.  Fitchburg  R.  Co.,  35  Am.  &*Eng. 
R.  Cas.  317,  145  Mass.  433,  14  A'.  E.  Rep. 
627. 

A  private  way  should  be  described  as 
extending  from  one  place  to  another;  oth- 
erwise the  declaration  is  insufficient.  Lam- 
phierv.  Worcester  &*  N.  R.  Co.,  33  N.  H. 

495- 

In  case  for  obstructing  a  private  way,  "  a 
certain  lot  of  land  in  N."  is  an  insufficient 
description,  whether  the  way  is  set  forth  as 
appendant  to  the  land,  or  the  land  is  in- 
tended as  a  terminus  of  the  way.  Lamp/tier 
v.  Worcester  dr-  N.  R.  Co.,  33  N.  H.  495. 

Where  an  action  is  against  two  railroad 
companies  to  recover  for  obstructing  a  pri- 
vate alley,  and  it  is  shown  that  the  first 
company,  after  erecting  the  obstruction, 
transferred  its  road  to  the  other  company, 
which  had  contmued  and  maintained  the 
obstruction,  facts  are  stated  sufficient  to 
maintain  a  separate  action  against  each 
company,  but  not  a  joint  action.  Hess  v. 
Buffalo    &^  N.  F.  R.  Co.,  29  Barb.  {N.  K) 

39'- 

16.  Amount  recoverable  —  Dam- 
ages.*—In  making  excavations  which  de- 


*  Damages    for  the  obstruction  of  a  private 
way,  see  noie,  30  Am.  &  Eno.  R.  Cas.  395. 


privcd  plaintiffs  of  the  use  of  their  way  for 
two  hundred  and  fifty  feet  defendant  com- 
pany invaded  plaintitTs'  rights,  but  as  an- 
other suitable  way  about  twenty  feet  dis- 
tant was  provided  as  a  substitute  for  the 
old  one,  and  after  the  lapse  of  about  two 
weeks  was  adopted  and  used  by  them,  only 
nominal  damages  should  be  allowed.  Fitz- 
Patrick  v.  Boston  &*  M.  R.  Co.,  84  Me.  33,  24 
Atl.  Rep.  432. 

Plaintiffs  refused  for  a  short  time  to 
travel  on  the  substituted  way,  under  the 
impression  that  by  so  doing  they  would 
recognize  a  right  in  defendant  to  make  the 
change  and  thereby  surrender  their  rights 
in  the  old  location.  They  claimed  substan- 
tial damages  for  this  interruption.  Held, 
that  the  law  makes  it  incumbent  on  a  per- 
son for  whose  injury  another  is  responsible  to 
use  all  ordinary  care  and  to  take  alt  reason- 
able measures  available  to  avoid  the  loss  and 
render  the  damage  as  light  as  practicable  ; 
and  It  will  not  permit  him  to  recover  any 
damage  which  might  have  been  prevented 
by  the  exercise  of  such  care  and  diligence. 
PlaintifTs'  right  of  way  was  not  extinguished 
by  defendant's  exercise  of  the  power  of 
eminent  domain,  and  was  not  paid  for  in 
the  estimation  of  land  damages,  and  there- 
fore plaintiffs'  rights  were  invaded  in  mak- 
ing the  excavations.  Fitzpatrick  v.  Boston 
(S-  M.  R.  Co.,  84  Me.  33,  24  Atl.  Rep.  432. 

17.  Injiiiiction.  —  Individuals  may 
maintain  a  suit  for  an  injunction  to  restrain 
parties  from  constructing  a  street  railroad 
in  the  street  in  front  oi  their  lots  so  as  to 
interfere  with  access  from  the  street  to  the 
lots.  IVetmore  v.  Story,  3  Abb.  Pr.  (N.  V.) 
262.— Distinguishing  Gould  v.  Hudson 
River  R.  Co.,  6  N.  Y.  522. 

An  act  of  parliament  reciting  that  it  is 
expedient  that  the  rights  of  w^y  in  respect 
of  footways  which  cross  a  certain  railway 
on  the  level  should  be  extinguished,  and 
enacting  that  all  rights  of  way  in,  over,  or 
affecting  certain  footways  be  extinguished, 
does  not  interfere  with  private  righis  of 
way,  but  only  with  public  rights  of  footways, 
and  an  injunction  restraining  the  railway 
company  from  obstructing  a  private  carriage, 
way  is  properly  granted.  Wells  v.  London^ 
T.  &^  S.  R.  Co.,  L.  R.  5  C/i.  D.  126,  25  W. 
R.  325,  37  L.  T.  302. 

PRIVILEGED  COMMUNICATIONS. 
Between  attorney  and  client,  see  Attorneys, 
2'JI,  23. 


Kp| 


% 


1082 


PRIVILEGED   DOCUMENTS— PROCESS,  1-3. 


I  •/,' 


ri 


it   : 


What  are,  see  Liiiri.,  etc.,  21. 

extent  of  privilege,  etc.,  see  Witnesses, 

88-u:). 


PRIVILEGED  DOCUMENTS. 
Denying  inspection  of,  see  Discovery,  etc.. 


PRIVILEGES. 
Of  express  companies  upon  railroad  trains, 

see  Express  Companies,  7-lH. 
—  hackmen  at  station,  see  Hacks  and  Hack 

Lines,  1-3, 
To  refuse  to  answer,  see  Witnesses,  80,  87. 
Under  charters,  see  Ciiauikrs,  U<>. 
What  pass  by  deed,  see  Deeus,  23. 


PROBABLE  CAUSE. 

Burden  on  plaintiff  to  show  want  of,  see 
Malicious  Pr(isi.iution,  7. 

For  arrest,  see  False  Imprisonment,  14. 

What  is  want  of,  and  how  proved,  see  Mali- 
cious Prosecution,  O,  14. 


PROBATE. 

Removal  of  proceedings  for,  to  federal  court, 
see  Removal  of  Causes,  18. 


PROBATE  COURTS. 

Jurisdiction  of,  in  condemnation  proceedings, 
see  Eminent  Domain,  247. 


PROCEEDS. 

Distribution  of,  in  foreclosure,  see  Mort- 
gages, 208-28.'{. 

Of  property  sold  under  execution,  disposition 
of,  see  Execution,  17. 


PROCESS. 
Effect  of  appearance  as  a  waiver  of  defects 

in,  see  Appearance,  4,  R. 
In  condemnation  proceedings,  see   Eminent 

Domain,  301-S04. 

—  criminal  prosecutions,  see  Criminal  Law, 

4. 

—  justices'  courts,  see  Justice  of  the  Peace, 

5. 

—  stock-killing  cases  in  justice's  court,  see 
Animals,  Injuries  to,  OlO. 

—  suits   against    foreign    corporations,   see 

Foreign  Corporations,  25,  20. 
receivers,  see  Receivers,  133. 

—  —  for  injuries  to  live  stock,  see  Animals, 

Injuries  ro,  2UO. 
Objections  to,  how  to  be  taken,  see  Appeal 
AND  Error,  Ol. 


Seizure  of  goods  on,  when  excuses  carrier 
for  non-delivery,  see  Carriage  ok  Mer- 
chandise, 2Ua-302. 

—  under,  when  a  defense  to  carrier,  see  Car- 
riage OP  Merchandise,  27. 

I.  OENEBAI  PBIMCIPLE8 1083 

II.  HOW  FBAMED  AND  IBBDED 1083 

III.  8EBVI0E,  AND  HOW  PBOVED lo8ii 

I.  OENEBAL  PBINOIFLEB. 

1.  Validity  of  statute — Ga.   Act   of 

i860,  providing  special  mode  of  service  on  a 
given  railroad,  is  not  special  legislation. 
Nashville  <S-  C.  R.  Co.  v.  McMahon,  70  Ga. 
585. 

The  legislature  may  prescribe  a  different 
rule  for  the  service  of  process  against  a  cor- 
poration from  that  in  force  at  the  time  it  is 
created.  New  Albany  &•  S.  A',  Co.  v.  Mc- 
Namara,  11  Ind.  543. 

2.  Statute  mu8t  be  tollowed.— A  pri- 
vate corporation  being  the  creature  of  stat- 
ute may  be  sued  in  such  manner  as  the 
legislature  may  provide.  The  statutes  of 
Oregon  prescribe  a  mode  for  the  commence- 
ment of  an  action  against  parties,  including 
corporations,  and  it  must  be  pursued  in 
order  to  confer  jurisdiction  upon  the  court 
over  the  person  of  the  defendant,  Holgate 
V.  Oregon  Pac.  R.  Co.,  16  Or  eg.  123,  17  Pac. 
Rep.  859. 

Where  a  corporation  is  sued  in  a  federal 
court,  service  of  process  must  conform  to 
the  United  States  statutes,  and  not  to  the 
statute  of  the  state  where  the  action  is 
brought.  Hume  v.  Pittsburgh,  C.  S^  St.  L. 
R.  Co.,  SBiss.  (U.S.)  31. 

Under  Wagn.  Mo.  St.  1007,  §  7,  a  sum- 
mons must  be  served  on  a  minor  precisely 
as  on  an  adult.  An  acknowledgment  in 
writing  on  the  writ  of  the  service  of  sum- 
mons (1008,  §  9)  can  only  be  made  by  adults 
or  those  capable  of  acting  for  themselves. 
A  minor  cannot  do  it,  nor  can  his  guardian 
(or  him.  The  statute  relative  to  the  appro- 
priation of  lands  (326,  327,  §  i)  requiring 
guardians  to  be  made  defendants,  does  not 
alter  the  rule  as  to  the  service  of  process. 
h'ansas  City  St.  J.SfC  B.  R.  Co.  v.  Camp- 
bell, 62  Mo.  585. 

3.  Sutlicieiicy  of  coinpliaiicc  with 
statute. — The  fifteen  days'  notice  specified 
in  tlie  Georgia  Act  of  1853-54,  defining  the 
liability  of  railroad  companies,  within  which 
notice  is  to  be  given  or  suit  brought  for  an 
injury,  applies  exclusively  to  cases  where 


ei  carrier 

OK    Mkr. 

,  lee  Cxa- 


, .  1083 
, ,  1083 
..  108% 


Act  of 
rvice  on  a 
egislation. 
on,  70  Ga, 

\  different 
inst  a  cor- 
:  time  it  is 
Co.  V.  Mc- 

id.— A  pri- 
ire  of  stat- 
ner  as  tlie 
statutes  of 
:ommence- 
,  including 
pursued  in 
1  the  court 
t.  Holgixte 
123.  17  Pac. 

in  a  federal 
conform  to 
not  to  the 
;  action  is 
:.  6-  St.  L. 

\  7,  a  sum- 
)r  precisely 
:dgnient  in 
ice  of  sum- 
le  by  adults 
themselves, 
is  guardian 
>  the  appro- 
)  requiring 
ts,  does  not 
of  process. 
0.  V.  Camp- 

iiicc  with 

ice  specified 
lefinJng  the 
ithin  vuhicli 
ught  for  an 
:ases  where 


^ 


PROCESS,  4-7. 


1083 


the  demand  is  under  $30.  Jones  v.  Central 
R.  <S-  B.  Co.,  18  Ga.  247.— Followed  in 
Muscogee  R.  Co.  v.  Neal,  26  Ga.  120. 

Tlie  notice  to  he  given  under  ilie  above  act 
must  be  in  the  name  and  by  authority  of  the 
aggrieved  party,  and  a  declanuion  in  the 
usual  form,  with  process  attached  by  tlic 
clerk  and  served  by  the  sheriff,  is  not  a  suf- 
ficient compliance  with  the  act.  Jones  v. 
Central  R.&*  B.  Co.,  18  Ga.  247.— Distin- 
guished IN  Hodges  V.  Atlantic  &  G.  R. 
Co..  51  Ga.  244.  Followed  in  Muscogee 
R.  Co,  V.  Neal,  26  Ga.  120. 

II.  HOW  FBAMED  AKD  ISSUED. 

4.  Nniiitng    and    descrlhinur    the 

partieH.— Under  a  statute,  providing  that 
process  in  attachment  or  garnishment  pro- 
ceedings may  designate  defendants  "  by  their 
reputed  names,  by  surnames,  and  joint  de- 
fendants by  their  separate  or  partnership 
names,  or  by  such  names,  styles,  or  titles 
as  they  are  generally  known,"  a  garnishee 
process  against  the  "  United  States  Express 
Company  "  is  good  whether  it  be  a  corpora- 
tion or  a  partnership.  United  States  Exp, 
Co.  v.  Bedbury,  34  ///.  459. 

The  words  "  United  States  Express  Com- 
pany " — held,  to  imply  a  corporation,  so  as  to 
authorize  service  of  process  thereon  as  is 
provided  for  corporations.  United  States 
Exp.  Co.  V.  Bedbury,  34  ///.  459. 

While  it  seems  to  be  the  better  practice 
to  name  the  local  agent  of  a  railroad  com- 
pany or  other  corporation  upon  wiiich  no- 
tice is  to  be  served,  yet  an  omission  to  do 
so  does  not  invalidate  the  citation,  where 
the  return  shows  that  it  was  served  upon 
such  local  agent  so  as  to  constitute  a  legal 
service.  Missouri  Pac.  R.  Co.  v.  IVise,  3 
Tex.  App.  {Civ.  Cas.)  461. 

5.  Misnomer— Variance.*— Where  a 
citation  in  a  suit  against  an  incorporated 
"  railway  "  company  describes  it  as  a  "  rail- 
road "  company,  there  is  no  error  in  over- 
ruling a  motion  to  quash  the  service. 
Galveston,  H.  &*  S.  A.  K.  Co,  v.  Donahoe,  9 
Am.  &•  Eng.  R.  Cas.  287,  56  Tex.  162. 

Where  a  suit  is  against  a  "railway"  com- 
pany, and  the  citation  commands  the  sheriff 
to  summon  the  defendant,  described  as  a 
"  railroad  "  company,  the  variance  is  imma- 
terial.    Central  &>  M.  R.  Co.  v.  Morris,  28 

*  Misnomers.  Pleadings  and  writs  containing 
"railroad"  for  "railway,"  see  note,  50  Am.  & 
Eng.  R.  Cas.  618. 


Am.  &*  Eng.  R,  Cas.  50, 68  Ttx.  49.  3  S.  W. 
Rep.  457- 

0.  Curing  miNnomcr  by  amend- 
ment.—Where  a  summons  names  the  de- 
fendant as  a  "  railroad  "  company,  when  its 
proper  designation  is  a  "  railway  "company, 
an  amendment  may  be  allowed  after  default 
and  judgment,  so  as  to  insert  the  true  namt 
Chicago  &•  I.  A.  L.  R.  Co.  v.  Johnston, 
13  Am.  &*  Eng.  R.  Cas.  181,  89  Ind.  88. 
Parks  V.  West  Side  R.  Co.,  82  Wis.  219,  52 
N.   W.  Rep.  92. 

Defendant  corporation  was  sued  as  the 
Baltimore  &  Washington  railroad  compa- 
ny, vhen  its  true  name  was  the  Baltimore 
&  Ohio  railroad  company;  but  process  was 
served  upon  one  of  its  agents,  and  it  ap- 
peared by  counsel,  but  made  no  objection  to 
the  misnomer.  Held,  that  the  misnomer 
could  not  be  used  as  error  on  appeal ;  but 
a  judgment  against  defendant  as  sued  could 
not  be  enforced  by  execution,  but  the  mis- 
nomer might  be  obviated  by  an  amendment 
at  another  trial  of  the  cause.  Keech  v. 
Baltimore  <S-  W.  R.  Co.,  17  Md.  32. 

Defendants  were  sued  as  a  foreign  cor- 
poration, and  process  was  served  upon  one 
of  the  members ;  but  an  answer  was  filed 
alleging  a  voluntary  association  and  not  a 
corporation.  Held,  that  it  was  proper  to 
allow  an  amendment  by  substituting  the 
names  of  the  individuals  composing  the 
association,  instead  of  the  corporate  name. 
Evoy  v.  Expressmen^ s  Aid  Soc,  ^x  N.  Y.  S. 
R.  38, 66  Hun  636,  mem.,  21  N.  Y.  Supp.  641. 

The  New  York  Central  railroad  com- 
pany and  the  Hudson  River  railroad  com- 
pany, separate  corporations,  consolidated 
pursuant  to  an  act  of  the  New  York  legisla- 
ture under  the  name  of  the  New  York  Cen- 
tral &  Hudson  River  R.  Co.  The  new  cor- 
poration was  sued  as  a  common  carrier, 
by  the  name  of  the  New  York  Central  rail- 
road company,  for  damage  to  property  re- 
ceived at  a  station  on  the  line  of  what  was 
formerly  the  New  York  Central  railroad, 
and  appeared  in  court  and  claimed  a  mis- 
nomer. Held,  that  plaintiff  was  properly 
allowed  on  trial  to  amend  the  writ  by  in- 
serting the  true  name  of  the  new  corporation. 
Hosfordv.  Neiv  York  C.  &*H.  R.  R.  Co.,  47 
Vt.  533- 

7.  Issuing  to  another  county.— 
Where,  in  an  action  against  a  corporation, 
the  clerk  of  the  county  in  which  the  action 
is  brought  issues  a  summons  for  the  defend- 
ant to  another  county,  it  will  be  presumed. 


1084 


PROCESS,  8-10. 


.t 


I 


in  the  absence  of  any  showing  to  the  con- 
trary, tliat  such  summons  was  properly  issued 
to,  and  served  in, such  county,  under  Ind. 
Rev.  St.  1881,  §316,  because  there  was  no 
person,  officer,  or  agent  of  the  defendant  in 
the  county  where  the  action  is  pending 
upon  whom  service  could  lawfully  be  had. 
Kochester,  R.  <S-  St.  L.  R.  Co.  v.  Jewell,  107 
Ind.  332,  8  jV.  E.  Rep.  215.— Followed  in 
Rochester,  R.  &  St.  L.  R.  Co.  v.  Woodruff, 
107  Ind.  599. 

8.  Issuiug  pending  appeal.— An  ap- 
peal having  been  prayed  from  a  judgment 
against  a  railroad  company  for  killing  cat- 
tle, thirty  days'  time  was  given  to  file  a  bond. 
Subsequently  a  motion  was  made  by  plain- 
tiff for  a  writ  requiring  a  conductor  of  the 
company  to  answer  as  to  funds  in  his  hands. 
Pending  this  motion,  an  appeal  bond  was 
filed  and  afterwards  the  writ  was  issued. 
Held,  that  the  issuing  of  the  writ  was  erro- 
neous. Indianapolis  &*  C.  R.  Co.  v,  Kibby, 
28  Ind.  479. 

9.  Citation. — It  is  provided  by  a  Texas 
statute  that  but  one  citation  shall  issue  for 
all  the  defendants  living  in  the  same  county, 
but  an  issuance  of  more  than  one  citation 
does  not  render  the  service  void  ;  its  only 
effect  is  to  make  the  plaintiff  responsible  for 
additional  costs.  Central  &^  M.  R.  Co.  v. 
Morris,  28  Am.  &»  Eng.  R.  Cas.  50,  68  Tex. 
49,  3  5.  IV.  Rep.  457. 

A  citation  to  be  valid  must  command  the 
officer  to  summon  the  defendant  in  the  suit, 
and  a  citation  against  a  corporation  which 
directs  the  officer  to  summon  an  agent  of 
the  corporation  is  insufficient,  though,  if  it 
be  properly  issued  against  the  corporation, 
it  may  be  served  upon  a  local  agent,  if  such 
be  found  in  the  county  where  the  suit  is  in- 
stituted. International  &*  G.  N.  R.  Co.  v. 
Saiih.  2  Tex.  App.  (Civ.  Cas.)  186.— Over- 
ruling Galveston  &  R.  R.  R.  Co.  v.  Shep- 
herd. 21  Tex.  27^.— Gulf,  C.  &*  S.F.  R.  Co. 
V.  Rawlins,  80  Tex.  579,  16  5.  IV.  Rep.  430. 

Citation  was  issued  against  "The  Southern 
Pacific  R.  Co."  The  return  of  the  sheriff 
showed  service  upon  "  The  Southern  Pacific 
Company."  Plaintiff  filed  an  amendment 
desif-nating  the  defendant  as  "  The  Southern 
Pacific  Cvimpany."  This  amendment  was 
not  served,  and  judgment  by  default  was 
rendered  against  "  The  Southern  Pacific 
Company."  On  error  by  "  The  Southern 
Pacific  Company  "— field,  that  the  name  of 
plaintiff  in  error  as  defendant  was  not  stated 
in  the  citation.    The  Southern  Pacific  R. 


Co.  and  the  Southern  Pacific  company  can- 
not be  regarded  as  identical.  Southern 
Pac.  Co.  V.  niock,  84  Tex.  21,  i<)  S.  W.  Rep. 
300. 

10.  Summons.— The  provisions  of  2 
Ind.  Rev.  St.,  p.  454,  that  process  cannot  run 
less  than  three  nor  more  than  thirty  day&  ; 
of  the  act  of  1853,  that  in  suits  before  a  jus- 
tice of  the  peace,  against  a  railroad  com- 
pany, for  stock  killed,  a  day  should  be  fixed 
for  trial  without  specifying  within  what  time, 
and  that  at  least  ten  days'  notice  thereof 
should  be  given  by  summons ;  and  of  the 
act  of  the  same  year,  that  where  the  princi- 
pal office  of  the  company  is  out  of  the  state, 
at  least  thirty  days'  notice  shall  be  given  of 
the  time  and  place  of  the  pendency  of  suit, 
should  be  construed  together ;  and  in  every 
summons  the  day  of  trial  should  be  set  not 
exceeding  thirty  days  after  the  date  of  the 
summons.  Michigan  S.  &•  N.  I.  R.  Co.  v. 
Shannon,  13  Ind.  171. 

Plaintiff  sued  to  recover  a  penalty  given  by 
New  York  Act  of  1857  to  prevent  extortion 
by  railroad  companies,  and  served  his  com- 
plaint and  summons  both  on  the  same  piece 
of  paper,  and  referred  to  the  statute  giving 
the  right  of  action  in  the  complaint,  instead 
of  indorsing  it  on  the  summons.  Held,  a 
sufficient  compliance  with  2  N.  Y.  Rev.  St. 
481,  §  7,  requiring  a  reference  to  ilie  statute, 
in  such  actions,  to  be  indorsed  on  the  sum- 
mons. Cox  v.  Nevf  York  C.  &*  H.  R.  R. 
Co.,  61  Barb.  (N.  Y.)  615. —  Quoted  in 
Bissell  V.  New  York  C.  &  H.  R.  R.  Co.,  67 
Barb.  385. 

Where  the  action  is  against  a  railroad 
company  to  recover  a  statutory  penalty  for 
an  extortionate  charge,  the  summons  and 
complaint  should  not  be  set  aside  because 
the  summons  is  formed  under  N.  Y.  Code 
Pro.  §  129,  subd.  2,  and  gives  notice  of  an 
intention  to  apply  for  relief,  instead  of  to 
the  clerk  for  judgment,  as  provided  by  subd. 
I.  Abbott  V.  New  York  C.  &-  H.  R.  R.  Co., 
12  Abb.  Pr.  N.  S.  (N.  Y.)  465,  1  Sheld.  278. 
— Applying  Morehouse  v.  Crilley.  8  How. 
Pr.  (N.  Y.)  431.  Distinguishing  and 
CRITICISING  People  V.  Bennett,  5  Abb.  Pr. 
384;  Bank  of  Genesee  v.  Patchin  Bank,  13 
N.  Y.  309;  Johnson  v.  Kemp,  11  How.  Pr. 
186;  Bank  of  Waterville  v.  Beltzer,  113 
How.  Pr.  270. 

An  action  for  demanding  and  receiving 
an  illegal  fare  is  an  action  on  contract  with- 
in the  meaning  of  N.  Y.  Code,  §  129,  and 
the    summons   should    conform    to  subd. 


PROCESS,  11-14. 


1085 


ipany  can- 

Southern 

.  W.  Kt-p. 

uns  of  3 
aiinot  run 
irty  days ; 
Fore  a  jus- 
oad  coni- 
d  be  fixed 
ivhat  time, 
ce  thereof 
id  of  the 
he  princi- 

tlie  state, 
e  given  of 
cy  of  suit, 
d  in  every 
be  set  not 
ate  of  the 

R.  Co.  V. 

y  given  by 
extortion 
J  his  com- 
>ame  piece 
ute  giving 
nt,  instead 
.  Heid,  a 
r.  Rev.  St. 
he  statute, 
n  the  sum- 
•  H.  R.  R. 
UOTED    IN 

R.  Co.,  67 

a  railroad 
jenalty  for 
imons  and 
le  because 
i.  Y.  Code 
)tice  o(  an 
tead  of  to 
:d  by  subd. 
.A'.  ^.  Co., 
Sheld.  278. 
ey,  8  How. 
4ING  AND 
5  Abb.  Pr. 
1  Bank,  13 
1  How.  Pr. 
leltzer,    113 

1  receiving 

tract  with- 

§  129,  and 

to   subd. 


I  of  the  section.  McCoun  v.  New  York  C. 
&*  H.  R.  R.  Co.,  7  Lans.  {N.  K)  75  ;  ap- 
peal dismissed  in  50  iV.  Y.  176,  3  Am.  Ry. 
Rep.  269. 

11.  Warrant.  —  A  warrant  against  a 
railroad  company  "  for  the  non-payment  of 
the  sum  of  $35  due  by  damage  sustained," 
there  being  nothing  in  any  other  part  of 
the  proceedings  to  make  it  more  certain,  is 
fatally  defective.  Wagoner  v.  North  Caro- 
lina R.  Co.,  ^  Jones  (N.  Car.)  367. 

12.  Possessory  warrant.— A  posses- 
sory warrant  which  alleges  the  unlawful 
taking  of  goods  from  the  owner,  and  placing 
them  on  the  cars  of  the  defendant  railroad, 
by  some  person  unknown,  and  which  directs 
the  seizure  of  the  property,  and  the  arrest 
of  the  unknown  person,  when  found,  is  not 
a  void  warrant.  Savannah,  G.  &*  N.  A.  R. 
Co.  V.  Wilcox,  48  Ca.  432,  1 1  Am.  Ry.  Rep. 
375- 

m.  8EBVICE,  AND  HOW  PROVED. 

13.  In  general.*— Under  '.lie  United 
States  statutes,  where  service  is  had  in  such 
a  way  that  it  would  have  been  good  against 
a  corporation,  before  its  property  was  placed 
in  the  hands  of  a  receiver,  it  is  sufficient 
service  to  bring  the  receiver  into  court ;  and 
so  service  on  a  station  agent  is  good  as 
against  a  receiver,  where  it  would  have  been 
good  against  the  corporation.  The  fact 
that  the  sheriff  may  have  understood  that 
he  was  directed  to  serve  the  corporation, 
and  believed  that  he  had  done  so,  is  imma- 
terial. Proctor  V.  Missouri,  K.  &»  T.  R. 
Co.,  42  Mo.  App.  124. 

Notice  of  an  appeal  may  be  served  upon 
an  attorney  of  the  opposite  party,  but  when 
he  is  not  found  in  his  office  it  must  be  left 
in  a  conspicuous  place.  Sliding  an  unsealed 
and  undirected  notice  through  a  slot  in  the 
attorney's  office  door  where  letters  are  re- 
ceived is  ineffectual.  Lim'ttgston  v.  Neiu 
York  El.  R.  Co.,  58  Hun  131.  33  iV.  Y. 
5.  V?.  818.  19  Civ.  Pro.  258,  II  N.  Y.  Supp. 
359;  affirmed  in  12^  N.  Y.  695,  mem.,  34 
N.  Y.  S.  R.  ion,  26  N.  E.  Rep.  751.— 
Distinguishing  Duval  v.  Susch,  13  Civ. 
Pro.  366. 

In  a  suit  before  a  justice  of  the  peace,  for 
setting  fire  to  property,  the  constable's  re- 
turn, showing  that  he  served  the  writ  by 
reading  it  to  the  company's  agent,  is  not 

*  Service  of  process  upon  railroad  companies, 
Me  note,  40  Am.  &  Enq.  R.  Cas.  6is. 


sufficient.  The  service  of  process,  as  pro- 
vided for  in  VVagn.  Mo.  St.  810,  art.  i,  §  9, 
is  authorized  in  suits  for  killing  stock  ;  but 
in  the  case  supposed  it  should  be  made 
conformably  to  tlie  statute  relating  to  cor- 
porations (Wagn.  St.  294.  §  26),  by  service 
on  the  chief  officer,  or  by  leaving  a  copy 
with  an  agent.  And  if  made  by  reading  the 
writ  to  the  agent,  the  court  will  be  bound, 
on  general  demurrer,  or  any  motion  which 
will  bring  to  its  attention  the  defect  in  the 
service,  to  dismiss  the  suit,  unless  the  re- 
turn is  amended  in  accordance  with  the 
facts  showing  due  service.  And  the  court 
cannot  refuse  to  act  upon  the  motion  or 
pleading  on  the  ground  that  they  fail  to 
specify  wherein  the  return  is  defective. 
Jordan  v.  Missouri,  K.  &*  T.  R.  Co.,  61  Mo, 

52. 

14.  Statutory  provisions. — In  a  pro- 
ceeding against  a  company,  under  Ind.  Act 
of  March  4,  1863,  §  5.  relating  to  killing 
stock,  to  procure  an  order  upon  an  agent 
to  pay  over  money  upon  a  judgment  ren- 
dered in  favor  of  the  plaintiff  against  the 
company,  service  upon  "the  company  by  a 
copy  left  with  a  conductor  of  a  train  on  said 
road  "  is  not  sufficient.  The  process  should 
be  served  as  prescribed  in  section  3.  Louis- 
ville, N.  A.  &•  C,  R.  Co.  V.  Thompson,  62 
Ind.  87. 

N.  J.  Act  of  April  15,  1846.  entitled  "  An 
act  for  the  relief  of  creditors  against  cor- 
porations," and  the  supplement  thereto  of 
March  22,  1865,  refer  only  to  the  mode  of 
serving  process  in  the  higher  courts,  and 
not  when  issued  by  a  justice  of  the  peace. 
Delaware,  L.  &•  W.  R.  Co.  v.  Ditton,  36  N. 
J.  L.  361. 

Service  of  summons  upon  a  California 
railroad  corporation,  made  in  accordance 
with  section  29  of  the  Nevada  Practice  Act, 
is  valid.  Capies  v.  Central  Pac.  R.  Co.,  6 
Nev.  265 

In  an  action  against  a  railroad  company 
before  a  justice  of  the  peace,  the  mode  of 
service  of  summons  prescribed  by  the  act  of 
March  21,  1850  (Curwen's  Ohio  St.  1538)  is 
exclusive  of  any  and  all  other  modes,  and 
the  mode  prescribed  in  the  act  of  March  14, 
1853,  §  15,  is  not  applicable  in  suits  against 
railroads.  North  v.  Cleveland  &*  M.  R.  Co., 
to  Ohio  St.  548. 

Texas  Act  of  March  21,  1874,  entitled 
"  An  act  to  fix  the  venue  in  certain  cases," 
§  2,  and  the  act  of  April  17,  1874,  relating  to 
iurisdiction,  did  not  repeal  by  implicatioa 


1086 


PROCESS,  16,  16. 


Il"?ir  ' 


1} 


i 


the  act  of  Feb.  7, 1854,  relating  to  the  man- 
ner of  serving  process.  So  service  on  a 
railroad  company  under  the  act  of  1854  by 
leaving  at  its  office  a  copy  of  the  citation 
and  tlie  petition  is  valid  service.  Houston 
<S-  T.  C.  Ji.  Co.  V.  Willie,  5  Am.  <S-  Eng. 
A'.  Cas.  541,  53  Tex.  318,  37  Am.  Rep.  756. — 
Followed  in  Houston  i  T.  C.  R.  Co.  v. 
Ford,  2  Am.  &  Eng.   R.  Cas.  514,  53  Tex. 

364. 

15.  Upon  whom  service  may  be 
made,  generally.*— Under  a  statute  pro- 
viding that  process  against  railroad  compa- 
nies may  be  served  on  any  agent  of  the 
company  when  certain  designated  officers 
cannot  be  found  in  the  county,  the  word 
"  county "  must  be  used  in  the  sense  of 
"district"  when  the  action  is  in  a  federal 
court.  Miller  v.  Norfolk  Sr*  IV.  R.  Co.,  41 
Fed.  Rep.  431.  Lung  Chung  v.  Northern 
Pac.  R.  Co.,  10  Sawy.  {U.  S.)  17,  19  Fed. 
Rep.  254. 

In  an  action  against  a  corporation  in  a 
federal  court  for  the  district  of  Oregon,  if 
tlie  summons  is  served  under  0;eg.  Code, 
§  54,  subd.  I,  on  any  agent  of  the  defendant 
other  than  its  president,  secretary,  cashier, 
or  managing  agent,  unless  it  appears  that 
the  cause  of  action  arose  in  the  district, 
such  service  is  illegal  and  will  be  set  aside. 
Lung  Chung  v.  Northern  Pac.  R.  Co.,  10 
Sa-wy.  (U.S.)\7. 

Wh  re  a  corporation  is  a  party,  it  is  only 
necessary  to  bring  the  corporation  into 
court  by  service  of  process  upon  such  offi- 
cers as  the  statute  directs.  Subordinate 
agents,  employes,  or  officers  are  not  proper 
parties.  State  v.  Jacksonville,  P.  &*  M.  R. 
Co.,  IS  Fla.  201. 

Under  Nebraska  Civil  Code,  §  912,  a  sum- 
mons against  a  corporation  may  be  served 
upon  its  chief  officer  if  he  be  found  in  the 
county.  If  not  so  found,  then  upon  its  cash- 
ier, treasurer,  secretary,  clerk,  or  managing 
agent ;  or  if  none  of  these  can  be  found,  by 
copy  left  at  the  office  or  usual  place  of 
business  of  such  corporation,  with  the  per- 
son having  charge  thereof.  This,  as  well  as 
section  914,  applies  to  foreign  corporations, 
except  where  there  are  special  provisions  to 
the  contrary.  Chicago,  B.  &*  Q.  R.  Co.  v. 
Manning,  35  Am.  6*  Eng.  R.  Cas.  618,  23 
Neb.  552,  37  N.  W.  Rep.  462. 

In  New  Jersey  a  summons  issued  out  of 


*  Service  of  process  on  officers  and  agents, 
■ee  note,  16  Am.  &  Eno.  R,  Cas.  S5a> 


the  court  for  the  trial  of  small  causes,  against 
a  corporation,  must  be  served  upon  the 
president,  treasurer,  cashier,  or  clerk  of  such 
corporation,  if  found,  and  if  not  found,  on 
any  of  the  directors  or  managers  thereof. 
State  {Pennsylvania  R.  Co.,  Pros.)  v.  Ren- 
nett.xj  N.J.  L.  275. 

Service  of  a  petition  and  cit^ation  ad- 
dressed to  a  corporation  is  fatally  defective 
when  made  on  one  who  is  not  a  legal  rep- 
resentative of  such  corporation,  authorized 
to  receive  legal  process.  Collier  v.  Mor- 
gan's  L.  &•  T.  R.  &*  S.  Co.,  41  La.  Ann.  37, 
5  So.  Rep.  537. 

Service  upon  a  servant  girl  at  the  private 
residence  of  an  attorney  is  good,  and  the 
service  counts  from  the  time  tiie  papers  are 
left,  and  not  from  the  time  they  come  into 
possession  of  the  attorney.  Murray  v.  Great 
Western  R.  Co.,  6  Ont.  Pr.  211. 

10.  Service  on  foreign  corpora- 
tions, generally.  —  Ala.  Code,  §§  2934, 
2935,  authorizing  the  service  of  process,  in 
actions  against  corporations,  on  certain  des- 
ignated officers  or  agents,  or,  affidavit  being 
made  of  their  non-residence,  on  any  white 
person  in  the  employment  of  the  corpora- 
tion, or  doing  business  for  it,  do  not  author- 
ize suits  against  foreign  corporations,  ex- 
cept on  causes  of  action  originating  here,  or 
on  contracts  entered  into  with  reference  to 
a  subject-matter  within  this  state.  Central 
R.  &*  B.  Co.  v.  Carr,  23  Am.  <**  Eng.  R.  Cas. 
487,  76  Ala.  388. 

When  a  railroad  extends  through  two  or 
more  states,  and  is  operated  under  a  char- 
ter procured  from  each,  identical  in  the 
powers  and  privileges  conferred,  the  cor- 
poration is  a  unit,  and  has  a  legal  residence 
in  each  of  the  states  through  which  its  road 
runs.  Central  R.  &•  B.  Co.  v.  Carr,  23  Aw. 
S-  Eng.  R.  Cas.  487,  76  Ala.  388. 

It  is  just  and  proper  that  foreign  corpora- 
tions should  be  subject  to  the  legitimate 
police  regulations  of  the  state,  and  should 
have,  if  required,  an  agent  in  the  state  to  ac- 
cept service  of  process  when  sued  for  acts 
done  or  contracts  made  therein.  Stockton 
v.  Baltimore  <S-  N.  Y.  R.  Co.,  32  Fed.  Rep.  9, 
I  Int.  Com.  Rep.  411. 

Ark.  Act.  of  1887,  requiring  foreign  cor- 
porations to  file  a  certificate  designating  an 
agent  upon  whom  process  may  be  served 
before  doing  business  in  the  state,  does  not 
repeal  the  statute  of  1873  which  provides  that 
no  foreign  insurance  company  shall  do  busi- 
ness in  the  state  without  first  filing  with  the 


,  against 
pon  the 
k  of  such 
ound,  on 

thereof. 

V.  Ben- 

ation  ad- 
'efective 

ej^al  rep- 
thorized 
V.  Mor- 
Ann.  yj. 


PROCESS,  17. 


1087 


auditor  a  stipulation  agreeing  that  process 
may  be  served  on  the  auditor  or  an  agent 
to  be  designated  by  the  company.  Marine 
Ins.  Co.  V.  St.  Louis,  I.  M.  &*  S.  A\  Co.,  43 
Atn.  <S-  Eftg^.  A'.  Cas.  79,  41  Fed.  Rep.  643. 

A  foreign  corporation  doing  business  in  a 
state  is  deemed  to  consent  to  a  statutory 
provision  that  service  may  be  made  upon 
such  corporations  by  serving  a  summons 
upon  its  agent,  and  is  bound  by  service  in 
tiiis  method.  Van  Dresser  v.  Oregon  R.  5* 
N.  Co.,  50  Am.  &*  Eng.  R.  Cas.  634,  48  Fed. 
Rep.  202. 

Under  Ind.  Act  of  March  4,  1853,  as 
amended  (Special  Acts  1861,  p.  78),  the  per- 
sons who  may  be  served  with  process  against 
a  corporation  whose  principal  office  is  not 
in  the  state  are  all  of  one  grade,  and  ser- 
vice on  any  one  of  them  is  good  without 
reference  to  whetlier  others  are  found  or 
not.  Toledo,  W.  &*  W.  R.  Co.  v.  Owen,  43 
Ind.  405. 

Before  the  enactment  of  the  statute  pro- 
viding for  service  of  process  upon  a  foreign 
corporation,  such  corporation  was  sued  by 
attaching  its  property,  and  leaving  an  at- 
tested copy  of  the  writ  with  its  treasurer. 
Held,  that  the  cause  was  not  so  "  com- 
menced by  the  service  of  process,"  within 
Mass.  Pub.  St.  ch.  169,  §25,  that  the  plain- 
tifl  could  take  a  deposition  by  serving  no- 
tice of  the  taking  of  the  same  upon  the 
.  treasurer.  Lewis  v.  Northern  R.  Co.,  139 
Mass.  294,  I  N.  E.  Rep.  546. 

A  mandamus  directed  to  a  foreign  cor- 
poration engaged  in  business  in  New  Jer- 
sey, commanding  the  performance  of  some 
duty  growing  out  of  that  business,  may  be 
legally  served  upon  any  officer  of  the  com- 
pany in  that  state  upon  whom  lawful  ser- 
vice could  have  been  made,  according  to 
the  ancient  common  law,  if  the  corporation 
were  domestic;  but  where  the  thing  en- 
joined by  the  writ  was  the  building  of  a 
bridge,  service  upon  a  mere  financial  officer 
of  the  company — held,  insufficient.  State 
ex  rel.  v.  Pennsylvania  R.  Co.,  42  N.  J.  L. 
490. 

In  an  action  against  a  foreign  corpora- 
tion, where  the  plaintiff  resides  in  the  state, 
or  when  the  corporation  has  property  in  the 
state,  or  when  the  cause  of  action  arose 
therein,  service  of  a  copy  of  the  summons 
upon  the  general  or  managing  agent  is  suf- 
ficient ;  but  where  neither  one  of  the  above 
conditions  exists  service  must  be  made 
upon  some  one  of  the   principal  officers. 


Cunningham  v.  Southsrn  Exp.  Co.,  67  N. 
Car.  425. 

Any  service  which  is  sufficient  as  against 
a  domestic  corporation  may  be  authorized 
to  commence  an  action  against  a  foreign 
corporation.  Pope  v.  Terre  Haute  C.  &* 
M.  Co.,  87  A^.  Y.  137;  affirming  24  Hun 
238,  60  How.  Pr.  419. 

N.  Y.  Code,  §  134,  authorizing  the  service 
of  summons  upon  a  foreign  corporation  by 
delivering  a  copy  to  an  officer,  simply  pro- 
vides a  substitute  for  an  order  of  publica- 
tion ;  and  to  sustain  such  service  it  must 
appear  that  the  corporation  had  property  in 
the  state  at  the  time  of  the  service  which 
was  liable  to  be  taken  by  attachment.  Bates 
V.  New  Orleans,  J.  (S*  G.  N.  R.  Co.,  4  Abb. 
Pr.  {N.  r.)  72,  13  How.  Pr.  516. 

A  foreign  corporation  consents  to  be 
amenable  to  suits  by  such  mode  of  service 
as  the  law  of  the  state  provides  when  it  in- 
vokes the  comity  of  the  state  for  the  trans- 
action of  its  business.  Merchants'  Mfg.  Co. 
V.  Grand  Trunk  R.  Co.,  63  How.  Pr.  (N.  V.) 

459- 

17. of  process  of  the  federal 

courts. — A  corporation  is  not  amenable  to 
process  except  in  the  state  where  its  busi- 
ness is  done.  Northern  Ind.  R.  Co,  v. 
Michigan  C.  R.  Co.,  5  McLean  ( U.  S.)  444. 

Indiana  Act  of  March  29, 1879,  relating  to 
foreign  express  companies,  and  authorizing 
the  service  of  process  on  the  officers  or 
agents  of  such  companies  within  the  state, 
is  limited  to  claims  or  demands  arising  in 
the  state,  and  includes  both  actions  growing 
out  of  contract  and  tort,  but  does  not  apply 
where  the  cause  of  action  arises  out  of  the 
state.  Graver  v.  American  Exp.  Co.,  11 
Fed.  Rep.  386.— Applving  Wilson  Packing 
Co.  V.  Hunter,  8  Biss.  (U.  S.)  429. 

Plaintifl  was  a  citizen  of  Vermont,  and  de- 
fendant was  a  New  York  corporation,  lessee 
of  a  railroad  in  Vermont,  and  in  possession 
of  the  road  and  running  it  there,  under  the 
lease.  Under  a  statute  of  Vermont  it  had 
appointed  a  person  there  upon  whom  ser- 
vice of  every  kind  of  process  known  to  the 
laws  of  that  state  might  be  made.  The  writ 
in  this  suit,  brought  in  Vermont,  was  served 
on  such  agent  in  Vermont,  in  the  manner 
provided  by  the  laws  of  that  state.  De- 
fendant moved  to  dismiss  the  suit,  on  the 
ground  that  jurisdiction  over  defendant  was 
not  obtained  by  service.  Held,  that  the 
motion  must  be  denied  ;  that  defendant  did 
not  become  a  citizen  of  Vermont,  and  that 


P- 


;  : 


^ 


1088 


PROCESS,  18,  lO. 


i'  t 


I 


the  service  of  the  process  in  that  state  was 
good  under  its  laws.  Brownell  v.  Troy  &* 
B.  R.  Co.,  1 8  Bliitchf.  (U.S.)  243,  3  Fed.  Rep. 
761. — Reviewing  Baltimore  &  O.  R.  Co.  v. 
Noell,  32  Gratt.  (Va.)  394 ;  Knapp  v.  Troy  & 
B.  R.  Co.,  20  Wall.  (U.  S.)  117. 

Under  Act  of  Congress  of  March  3,  1875, 
providing  that  no  civil  suit  shall  be  brought 
against  any  person  by  original  process,  ex- 
cept in  the  district  of  which  he  is  an  in- 
habitant or  in  which  he  shall  be  found,  a 
corporation  cannot  be  served  with  process 
out  of  the  state  of  its  creation.  Hume  v. 
Pittsburgh,  C.  S-  St.  L.  R.  Co.,  8  Biss.  { U.  S.) 

3'. 
A  corporation    can  only  be   said  to  be 

"  found,"  within  the  meaning  of  the  above 
statute,  in  the  state  of  its  creation  ;  and  the 
presence  of  an  agent  .n  another  state  is  not 
the  presence  of  the  corporation,  within  the 
meaning  of  the  statute.  Hume  v.  Pitts- 
burgh,  C.  <S-  St.  L.  R.  Co.,  8  Biss.  (£/.  5.)  31. 

A  law  of  New  York  declaring  a  foreign 
corporation  liable  to  be  sued  by  summons 
in  the  same  manner  as  corporations  of  New 
York,  and  that  process  might  be  served  on 
an  officer  or  agent  of  the  corporation,  can- 
not give  to  a  U.  S.  circuit  court  jurisdiction 
of  a  suit  against  such  corporation  by  the 
service  of  process,  within  its  district,  on  an 
officer  or  agent  of  such  corporation.  Pome- 
roy  V.  New  York  &*  N.  H.  R.  Co.,  4  Blatchf. 
(U.  S.)  120.— Distinguished  in  Kelsey  v. 
Pennsylvania  R.  Co.,  14  Blatchf.  89. 

The  rules  of  procedure  prescribed  by  a 
state  for  obtaining  service  upon  a  foreign 
corporation  doing  business  therein  govern 
the  federal  courts,  and  service  in  the  man- 
ner prescribed  confers  upon  them  jurisdic- 
tion over  such  corporation.  Van  Dresser 
v.  Oregon  R.  &*  N.  Co.,  50  Am.  (S-  Eng.  R. 
Cas.  634,  48  Fed.  Rep.  202. 

18.  When  such  corporation  is 
"found"  within  the  Jurisdiction.— 
When  a  foreign  corporation  establishes  an 
agency  in  a  state  whose  laws  provide  that 
they  may  be  summoned  by  a  process  served 
upon  an  agent,  they  are  "  found  "  within  the 
district  in  which  such  agent  is  doing  busi- 
ness, within  the  meaning  of  the  Act  of  Con- 
gress of  March  3,  1875,  ^"^  ni^y  ^^  served 
in  the  same  manner  in  suits  in  federal  courts. 
McCoy  V.  Cincinnati,  T.,  St.  L.  <S-  C.  R.  Co., 
13  Fed.  Rep.  3.— Following  Mohr  &  M. 
DistillingCo.v.  Insurance  Cos.,  12  Fed  Rep. 
474. — Merchants'  Mfg.  Co.  v.  Grand  Trunk 
R,  Co.,  31  Blatchf,  {U.  S.)  109,  13  Fed.  Ktp. 


358.  Block  V.  Atchison,  T.  &*  S.  F.  R.  Co., 
21  Fed. Rep.  529.— Distinguished  in  Max- 
well V.  Atchison,  T.  &  S.  F.  R.  Co.,  34  Am. 
&  Eng.  R.  Cas.  574,  34  Fed.  Rep.  286.— 
Galveston  City  R.  Co.  v.  Hook,  40  ///.  A  pp.  547. 

A  foreign  corporation  is  "found  "  in  the 
district  where  its  agent  is  served,  when  it 
does  business  there,  and  the  state  laws  au- 
thorize such  a  mode  of  service.  Mer- 
chants' Mfg.  Co.  V.  Grand  Trunk  R.  Co.,  63 
How.  Pr.  (N.   V.)  459. 

10.  Chief  place  of  business,  or  of- 
fice, within  state  or  district.  —  Un- 
der U.  S.  Rev.  St.  §  790,  relating  to  the  dis- 
trict of  Columbia,  an  action  can  be  brought 
in  the  supreme  court  of  the  district  against 
a  foreign  corporation  only  when  it  has  an 
established  place  of  business  in  the  district, 
and  the  process  can  be  served  upon  the 
agent  or  other  person  by  it  employed  to 
conduct  such  business  as  it  is  engaged  in 
here.  Dallas  v.  Atlantic,  M.  &*  O.  R.  Co., 
2  MacArth.  (D.  C.)  146. 

If  the  chief  office  or  place  of  business  of 
a  corporation  is  within  the  state,  as  desig- 
nated by  the  Missouri  statute,  then  a  for- 
eign corporation  is  regarded  as  a  domestic 
one,  and  amenable  to  the  jurisdiction  of 
the  courts  by  the  common  process  of  sum- 
mons ;  but  if  its  office  or  place  of  business 
is  not  in  the  state,  then  it  must  be  pro- 
ceeded against  as  a  non-resident  by  attach- 
ment. Middough  V.  St.  foseph  &»  D.  C. 
R.  Co.,  51  Mo.  520,  3  Am.  Ry.  Rep.  261. 

Service  upon  a  non-resident  corporation 
having  an  office  or  doing  business  in  the 
state,  in  the  manner  provided  by  Mo.  Rev. 
St.  1879,  §  3489,  subd.  4,  has  the  effect  of 
personal  service  and  gives  the  court  juris- 
diction to  enter  a  general  judgment.  Mc- 
Nichol  V.  United  States  M.  R.  Agency,  74 
Mo.  457.— Approved  in  New  York,  L.  E. 
&  W.  R.  Co.  V.  Estill,  147  U.  S.  591. 

Where  the  suit  is  against  a  foreign  cor- 
poration,  i  n  order  to  make  service  of  the  sum- 
mons and  complaint  on  a  managing  agent 
of  the  company  good,  it  must  appear  that 
the  company  has  some  property  in  the  state 
at  the  time  of  the  service ;  but  this  may  be 
established  by  proof  that  the  company 
leases  an  office  and  owns  the  office  furni- 
ture. Tuchbaud  v.  Chicago  &*  A.  R.  Co., 
2  Silv.  Sup.  C/.  352,  J  6  Civ.  Pro.  241,  5  A'. 
Y.  Supp.  493.  53  Hun  629,  24  N.  Y.  S. 
R.  236 ;  affirmed  in  40  Am.  6>»  Eng.  R.  Cas, 
6i 2,  II 5  A'.  Y. 437,  17  Civ. Pro. 424, 22  N.  E, 
Rep.  360.  26  A^.  Y.  S.  R.  440. 


PROCESS,  20-22. 


1089 


■i  ;- 


Unless  a  foreign  corporation  has  within 
the  state  a  managing  agent,  (or  the  ordinary 
transaction  of  its  business,  it  cannot  be 
held  liable  in  the  courts  of  Ohio  by  any 
proceeding  in  personam.  Barney  v.  New 
Albany  &»  S.  K.  Co.,  i  Handy  (Ohio)  571. 

The  first  part  of  section  17  of  the  Common 
Law  Procedure  Act  applies  only  to  corpora- 
tions whose  >,hief  place  of  business  is  within 
Upper  Canada;  the  remainder  to  foreign  cor- 
porations. Where,  therefore,  a  writ  against 
a  foreign  corporation  is  served  in  Upper 
Canada  upon  the  president,  but  it  is  not 
shown  that  he  transacted  any  business  of 
the  company  there,  the  service  is  bad.  Wil- 
son V.  Detroit  «&-  M.  A'.  Co.,  3  Ont.  Pr.  yj. 

20.  Officer  teinporarily  iii  state  in 
iu<livi(liial  capacity.*— The  presence  of 
the  chief  officer  of  a  foreign  corporation  in 
a  state  does  not  change  the  legal  residence 
of  the  corporation ;  nor  does  the  carrying 
of  property  of  the  corporation  into  such 
state  for  the  purpose  of  exhibition  make 
the  corporation  an  "  inhabitant."  nor  can  it 
be  said  to  be  "  found  "  there,  within  the 
•  meaning  of  the  act  of  congress, so  that  it  may 
be  served  with  process.  Carpenter  v.  West- 
inghouse  Air-Brake  Co.,  32  Fed.  Rep.  434. 
—  Following  United  States  v,  American 
Bell  Telep.  Co.,  29  Fed.  Rep.  17.— Fidelity 
T.  6-  S.  V.  Co.  V.  Mobile  St.  R.  Co.,  53  Fed. 
Rep.  850.  Midland  Pac.  R.  Co.  v.  McDer- 
mid,  91  ///.  170. — Followed  in  Fairbankx/. 
Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  54  Fed. 
Rep.  420,  9  U.  S.  App.  212, 4  C.  C.  A.  403. 
—Galveston  City  R.  Co.  v.  Hook,  40  ///.  App. 
547.  Shcehan  v.  Bradford,  B.  &•  A".  R.  Co. , 
1 5  Civ.  Pro.  249,  3  N.  V.  Supp.  790.  A'ewell 
V.  Great  Western  R.  Co.,  19  Mich.  336. 
Latimer  v.  Union  Pac.  R.  Co.,  43  Mo.  105. 

Where  the  cause  of  action  arises  in  the 
state,  service  of  process  on  a  foreign  cor- 
poration may  be  had  by  delivering  a  copy 
to  the  vice-president  and  manager,  though 
he  be  in  the  state  but  temporarily  and  not 
engaged  in  any  of  the  duties  of  his  office. 
Porter  v.  Sewell  Car-Heating  Co.,  17  Civ. 
Pro.  386,  7  N.  Y.Supp.  166.— Following 
Pope  V.  Terre  Haute  C.  &  M.  Co.,  87  N.  Y. 
137;  Hitler  v.  Burlington  &  M.  R.  R.  Co., 
70  N.  Y.  223. 

Under  N.  Y.  Code  Civ.  Pro.  §  432,  pro- 
viding (or  the  service  of  summons  upon  a 
foreign  corporation  by  delivering  a  copy  in 

•  Process  cannot  be  served  on  agent  of   for- 
eign   corporation    casually   in  jurisdiction,   see 
note,  16  Am.  &  Eng.  R.  Cas.  557. 
6D.  R.  D.-fo 


the  state  to  the  president,  secretary,  or 
treasurer  of  the  company,  in  order  to  make 
such  service  effectual  it  is  not  necessary 
that  the  officer  served  should  be  in  the 
state  in  his  official  capacity,  or  engaged  in 
the  business  of  the  company,  or  that  it 
should  have  any  property  in  the  state,  01 
that  the  cause  of  action  arose  in  the  state. 
Pope  v.  Terre  Haute  C.  6-  Af.  Co.,  87  A^  Y. 
137  ;  affirming  24  Hun  238, 60  Ho^v.  Pr.  419. 
—  Followeu  in  Tuchband  v.  Chicago  & 
A.  R.  Co.,  115  N.  Y.  437,  17  Civ.  Pro.  424, 
22  N.  E.  Rep.  360.  26  N.  Y.  S.  R.  440 ;  Por- 
ter 7/.  Sewell  Car-Heating  Co.,  17  Civ.  Pro. 
386,  7  N.  Y.  Supp.  166.         , 

21.  Luring  corporate  officer  with* 
ill  the  jiiriscliction.— Under  the  laws  of 
Nebraska  where  a  non-resident  corporation 
is  not  doing  business  in  the  state,  and  has 
no  offices  there,  it  is  not  in  the  state  so  that 
process  can  be  served  on  it.  So  where  the 
president  of  a  construction  company  was  in- 
veigled into  a  county  in  the  state  that  ser- 
vice might  be  had  on  \\'\m—held,  this  would 
not  give  jurisdiction.  Fitzgerald  &«•  M. 
Constr.  Co.  v.  Fitzgerald,  1 37  U.  S.  98,  1 1  Sup. 
Ct.  Rep.  36.— Quoted  in  Fairbank  v.  Cin- 
cinnati, N.  O.  &  T.  P.  R.  Co..  54  ."^ed. 
Rep.  420,  9  U.  S.  App.  212,  4  C.  C.  A.  403. 

22.  President.— Ga.  Act  of  Feb.  23, 
1866,  does  not  repeal  the  act  of  April  18, 
1863,  and  where  a  suit  has  been  commenced 
by  service  of  process  upon  an  express  com- 
pany in  accordance  with  the  previous  acl 
service  may  be  perfected  in  accordance  with 
the  later  act,  by  serving  upon  the  president 
of  the  company;  failure  to  serve  upon  the 
president  in  the  first  instance  is  not  a  bar  to 
the  action,  but  service  must  be  perfected 
before  going  to  trial.  Conner  v.  Southern 
Exp.  Co.,  37  Ga.  397. 

A  corporation  created  in  the  state  cannot 
be  served  with  a  summons  of  garnishment 
by  serving  any  one  of  its  agents.  The  ser- 
vice must  be  on  its  president.  Clark  v. 
Chapman  &'  C.  R.  <5-  B.  Co.,  45  Ga.  486. 
Brigham  v.  Port  Royal  &•  A.  R.  Co. ,  74  Ga, 

365. 

It  is  only  where  the  president  of  an  ex- 
press company  resides  in  the  state  that 
service  of  process  is  required  to  be  made 
upon  him  under  Ga.  Code,  §  3412.  Posting 
his  name  in  each  office  where  the  company 
transacts  business  is  of  no  efficacy,  unless  he 
resides  in  the  state,  whether  his  office  be 
within  the  state  or  not.  Southern  Exp.  Co, 
V.  Skipper,  85  Ga.  565, 11  S.  E.  Rep.  871. 


1090 


PROCESS,  23-27. 


Under  Ind.  Rcv.  St.  of  1852,  service  of 
process  on  the  president  of  a  railroad  com- 
pany is  sufficient.  Branhatn  v.  Ft.  Wayne 
«S-  S.  R.  Co.,  7  Ind.  524. 

Delivery  of  a  summons  to  the  president 
of  a  company,  he  not  being  a  party  to  the 
action,  is  but  service  upon  the  company  it- 
self. Newport  ^^  C.  Bridge  Co.  v.  Douglass, 
12  Bush  (Ky.)  673,  18  Am.  Ry.  Rep.  221. 

Where  a  corporation  is  dissolved  under 
Mo.  Rev.  St.  of  1889,  §  2664,  service  of  proc- 
ess upon  its  president  or  managing  officer 
confers  no  jurisdiction  over  the  person  of 
the  dead  corporation,  as  such  officers  can 
neither  appear  nor  defend  for  such  corpora- 
tion. Ford  V.  Kansas  City  &*  I.  S.  L.  R. 
Co.,  52  Mo.  App.  439. 

In  an  action  on  a  note  executed  by  one  as 
president  of  a  railway  company,  the  clerk 
issued  the  writ  commanding  the  sheriff  to 
summon  such  person  as  president,  etc.,  and 
service  was  made  on  him.  Held,  that  the 
writ  and  service  were  good.  Galveston  &* 
R.  R.  R.  Co.  V.  Shepherd,  21  Tex.  274. 

23.  Secretary. — In  the  absence  of  any 
statutory  mode  of  service  of  a  notice  upon 
a  corporation,  when  it  cannot  be  had  upon 
the  chief  officer  or  managing  agent,  service 
upon  any  officer  whose  official  relation  to 
the  governing  body,  or  managing  agent,  or 
chief  officer  would  make  it  his  duty  to 
communicate  the  notice  will  be  sufficient. 
The  secretary  is  such  an  officer.  Heltzell  v. 
Chicago  &*  A.  R.  Co.,  16  Am.  &*  Eftg.  R.  Cas. 
619,  77  Mo.  315, 

Notice  of  an  action  against  a  railway 
company  for  overcharges  served  upon  a 
station  superintendent  was  insufficient  under 
8  &  9  Vict.  c.  20,  §  138,  as  it  should  have 
been  served  upon  the  secretary  of  the  com- 
pany in  London,  where  the  company's  prin- 
cipal office  was.  Garten  v.  Great  Western 
R.  Co.,  4  Jur.  N.  S.  1036,  27  L.  J.  Q.  B.  375. 

24.  Assistant  secretary.— The  assist- 
ant secretary  of  a  foreign  corporation,  who 
is  only  charged  with  making  such  records 
as  are  expressly  intrusted  to  him,  is  not  "  a 
managing  agent  "  of  the  corporation,  within 
the  meaning  of  N.  Y.  Code  Civ.  Pro.  § 
432,  subd.  3,  which  authorizes  service  of 
process  upon  a  corporation  by  delivery  of  a 
copy  to  a  managing  agent.  Sterett  v.  Den- 
ver &*  R.  G.  R.  Co.,  17  ^un  (N.  V.)  316. 

Service  of  a  writ  may,  nnder  Man.  St.  § 
35,  be  authorized  up.,.i  an  assistant  secretary 
of  a  foreign  corporation,  but  it  must  appear 
that  service  cannot  be  effected  upon  one  df 


the  proper  officers  of  the  company,  and  the 
nature  of  the  duties  of  the  office  must  be 
shown.  Crotty  v.  Oregon  &•  T.  R.  Co.,  3 
Man.  182. 

25.  Superintciideut.— A  return  of  an 
officer  in  an  action  against  a  corporation 
that  he  served  process  on  the  superintendent 
of  the  road,  the  highest  officer  found  in  the 
county,  is  a  sufficient  compliance  with  th'e 
Tenn.  statute  providing  that  in  actions 
against  corporations  process  may  be  served 
on  the  president,  or  other  head  of  the  cor- 
poration, or  in  his  absence  on  the  cashier, 
treasurer,  or  secretary,  or  in  the  absence  of 
such  officers,  then  on  any  director  of  such 
corporation,  and  if  none  of  these  officers 
reside  in  the  state,  service  upon  the  chief 
agent  of  the  corporation,  residing  at  the 
time  in  the  county  where  suit  is  brought, 
shall  be  sufficient.  Kansas  City,  Ft.  S.  <S* 
M.  R.  Co.  \.  Daughtry,  138  U.  S.  298,  11 
Sup.  Ct.  Rep.  306;  affirming  88  Tenn.  721 
135.  W.  Rep.  698. 

The  general  superintendent  of  the  work 
of  operating  the  telegraph  lines  of  a  com- 
pany is  the  "  managing  agent"  of  the  com- 
pany within  the  meaning  of  N.  Y.  Code 
of  Civ.  Pro.  §431,  in  reference  to  service  on 
domestic  corporations.  Barrett  v.  Ameri- 
can T.  <S-  T.  Co.,  138  A'.  Y.  491  ;  affirm- 
ing 56  Hun  430,  31  N.  Y.  S.  R.46S,  10  A^.  Y. 
Supp.  138,  18  Civ.  Pro.  363. 

26.  Assistant  treasurer  Under  N. 
Y.  Code  of  Civ.  Pro.  §  431,  service  of  sum- 
mons upon  a  domestic  corporation  may  be 
made  by  delivering  a  copy  within  the  state 
to  the  president  or  other  head  of  the  cor- 
poration, to  the  secretary  or  clerk,  cash- 
ier, treasurer,  director,  or  managing  agent. 
Held,  that  this  did  not  authorize  service 
upon  an  assistant  treasurer  of  the  company 
simply  because  the  treasurer  was  a  non- 
resident, Winslow  V.  Staten  Island  R.  T. 
R.  Co.,  51  Hun  298,  21  A'.  Y.  S.  R.  87,  4  A^. 
Y.  Supp.  169 ;  affirming  2  N.  Y.  Supp.  682, 
15  Civ.  Pro.  202. 

27.  Directors.*— A  director  of  a  rail- 
ioad  company  is  not  a  head  or  managing 
agent  thereof  upon  whom  a  summons  and 
complaint  may  be  served,  under  Ala.  Rev. 
Code,  §  2568.  Alabama  &».  T.  R.  R.  Co.  v. 
Burns,  43  Ala.  169. 

Under  N.  Y.  Code,  §  134,  service  of  sum- 
«ons  u^n  a  director  of  a  railroad  corpora- 


*  Service  of  process  on  «  director  who  hMl 
ceased  to  hold  office,  see  48  Au.  it  Emo.  R. 
Cas.  86,  abttr. 


PROCESS,  as. 


1091 


,  and  the 

must  be 

R.  Co.,  3 

urn  of  an 
rporation 
intendent 
nd  in  the 

with  th'e 

actions 

be  served 

the  cor- 
e  cashier, 
ibsence  of 
r  of  such 
e  officers 
the  chief 
ig  ai  the 
1  brought, 
Ft.  S.  <J- 
S.  298.  1 1 
Tenn.  721 

ihe  work 
of  a  com- 

the  com- 

.  Y.  Code 

service  on 

V.  Ameri- 

91 ;  affirm- 

15,  10  A^.  Y. 

Under  N. 
ce  of  sum- 
ion  may  be 
n  the  state 
of  the  cor- 
lerk.  cash- 
ging  agent, 
ize  service 
le  company 
isls  a  non- 
t/a«</  Ji.  T. 
Ji.  87,  4  A^ 
,  Supp.  682, 

r  of  a  rail- 
r  managing 
mmons  and 
:r  Ala.  Rev. 
R.  R.  Co.  V. 

ice  of  sum- 
>ad  corpora- 
tor who  had 
&  Emo.  R. 


tion  is  valid.    Curtis  v.  Avon,  G.  &*  M.  M. 
R.  Co.,  49  Rard.  (N.  V.)  148. 

Service  of  summons  upon  a  director  of  a 
foreign  corporation  is  not  authorized  either 
by  N.  Y.  Act  of  1846,  ch.  195,  §  8,  or  by 
Code  Civ.  Pro.  §  432.  Quade  v.  New  York, 
N.  H.  &»  H.  R.  Co.,  27  /.  <S-  S.  479. 14  N. 
Y.  Supp.  875.  39  A^.  Y.  S.  R.  157. 

In  proceedings  or  actions  against  defunct 
corporations,  service  of  process  upon  the 
members  of  its  last  acting  board  of  directors 
is  sufficient,  under  the  statute,  to  give  the 
court  jurisdiction.  Warner  v.  Callender, 
20  Ohio  St.  190. 

Where  process  issues  against  a  foreign 
corporation,  and  the  sheriff  returns  that  he 
served  a  certified  copy  of  the  summons  on 
one  of  the  directors  personally,  it  is  an  in- 
sufficient service.  In  no  case  can  a  foreign 
corporation  be  served  with  process  in  the 
mode  prescribed  by  Ohio  Code,  §  66.  Bar- 
ney  v.  New  Albany  6r*  S.  R.  Co.,  i  Handy 
{Ohio)  571. 

Where  a  statute  provides  that  a  writ  may 
be  served  on  a  company  by  leaving  it  at  or 
sending  it  by  post  to  the  office  of  the  com- 
pany, or  by  giving  it  to  the  secretary,  or,  .! 
there  be  no  secretary,  to  a  director,  the 
secretary  of  the  company  cannot  commence 
suit  against  the  company  by  serving  a  sum- 
mons on  a  director.  Lawrenson  v.  Dublin 
M.J.R.  Co.,  2,7  L.  T.yi. 

Service  of  an  English  writ  upon  an  Irish 
railway  company  should  be  upon  the  secre- 
tary or  clerk  of  the  company  at  the  ofRce  in 
Ireland,  and  if  they  cannot  be  found,  upon 
a  director  there  ;  but  service  upon  a  director 
in  England  is  void.  Evans  v.  Dublin  &*  D, 
R.  Co.,  3  Railw.  Cas.  760,  14  M.  &*  W.  142, 
1  D.&*  L.  865,  ^Jur.  474,  14  L.  J.  Ex.  245. 

28.  AgeiitH,  generally. —  (i)  Federal 
decisions. — Oreg.  Code  of  Civ.  Pro.  §  54,  as 
amended  in  1876,  provides  for  service  of 
process  against  a  private  corporation  on  the 
president  or  other  head  of  the  corporation, 
secretary,  cashier,  or  managing  agent ;  but 
if  none  of  these  be  found  in  the  county, 
then  upon  any  clerk  or  agent  of  the  corpo- 
ration that  may  be  found.  Held,  that  the 
word  "  county "  must  be  understood  as 
"  district "  when  applied  to  suits  in  the  fed- 
eral courts.  Lung  Chung  v.  Northern  Pac. 
R.  Co.,  16  Am.  &*  Eng.  R.  Cas.  548.  19  Fed. 
R*p.  254,  10  Sawy.  17. 

And  in  such  case  service  on  an  agent  will 
be  set  aside,  unless  it  appears  that  the  cause 
ol  action  arose  in  the  district.    Lung  Chung 


v.  Northern  Pae,  R,  Co.,  16  Am.  &*  Eng.  R. 
Cas.  548, 19  Fed.  Rep.  254. 

Service  of  process,  in  an  action  against 
a  foreign  railroad  corporation,  cannot  be 
made  upon  an  agent  whose  authority  is 
limited  to  soliciting  business,  although  such 
agent  may  have  been  employed  by  the  de- 
fendant for  the  purpose  of  compromising 
the  suit.  Maxwell  v.  Atchison,  T.  &■>  S.  F. 
R.  Co.,  34  Am.  (S-  Etig.  R.  Cas.  574,  34  Fed. 
Rep.  286.— Applying  Mackereth  v.  Glas- 
gow &  S.  W.  R.  Co.,  L.  R.  8  Ex.  149.  Dis- 
tinguishing Block  V.  Atchison,  T.  &  S.  F. 
R.  Co.,  21  Fed.  Rep.  529.  Quoting  United 
States  V.  American  Bell  Telep.  Co.,  29  Fed. 
Rep.  17. 

The  Union  Pacific  railway  company 
must  be  considered  as  doing  business  in 
Washington  under  the  name  of  "  The  Union 
Pacific  System,"  and  a  service  of  summons 
upon  an  agent  therein  who  is  authorized  to 
act  for  all  the  companies  of  such  system  is 
a  service  upon  the  Union  Pacific  company. 
Van  Dresser  v.  Oregon  R.  &*  N.  Co.,  50  Am. 
&*  Eng.  R.  Cas.  634,  48  Fed.  Rep.  202. 

Where  a  domestic  corporation  makes  an 
unauthorized  lease  of  its  railroad  to  another 
company,  but  continues  its  corporate  exist> 
ence  and  receives  revenue  under  the  lease, 
its  lessee  must  be  considered  as  its  agent  to 
carry  on  the  business,  and  in  an  action  for  a 
tort  committed  in  operating  the  road  ser- 
vice of  summons  upon  an  agent  of  the 
lessee  is  service  upon  the  lessor  company 
Van  Dresser  v,  Oregon  R.  &•  N.  Co.,  50  Am. 
«S-  Eng.  R.  Cas.  634,  48  Fed.  Rep.  202. 

111.  Rev.  St.  1891,  ch.  no,  §  5,  providing 
for  service  of  process  against  corporations 
upon  any  agent  of  the  corporation  found  in 
the  county,  in  the  absence  of  the  president, 
does  not  authorizeiservice  against  a  foreign 
railroad  corporation  upon  a  person  em- 
ployed to  solicit  business  for  the  corpora- 
tion, but  who  has  nb  power  to  sell  tickets 
or  make  contracts  for  the  corporation, 
though  he  may  have  the  company's  name 
on  his  office  window.  Fairbank  v.  Cincitt- 
nati,  N.  O.  6-  T.  P.  R.  Co.,  54  Fed.  Rep. 
420,  9  U.  S.  App.  212, 4  C.  C.  ^.403.— Fol- 
lowing Midland  Pac.  R.  Co.  v.  McDerraid, 
91  111.  170;  Hannibal  &  St.  J.  R.  Co.  v. 
Crane,  102  111.  249.  Quoting  Fitzgerald  & 
M.  Constr.  Co.  v.  Fitzgerald,  137  U.  S.  98. 
II  Sup.  Ct.  Rep.  36. 

(2)  Stat*  detisions.  —  Service  of  procesi 
against  a  railroad  corporation  upon  an 
agent  is  not  effective,  unless  the  agent  it  la 


T^T^ 


1092 


PROCESS,  28. 


I;T" 


fact  the  agent  of  the  corporation.  So  where 
a  state  has  indorsed  the  bonds  of  a  road, 
and  has  seized  the  road  for  non-payment  of 
interest,  and  placed  it  in  the  hands  of  a  re- 
ceiver, an  agent  under  the  receiver  is  not 
the  agent  of  the  corporation,  so  as  to  make 
service  of  process  upon  him  valid  as  against 
the  corporation.  Cherry  v.  North  &*  S.  R, 
Co..  59  Ga.  446. 

Where  the  receivers  of  a  foreign  railroad 
operate  a  connecting  railroad  in  Georgia 
as  part  of  a  through  hne,  under  a  contract 
by  which  they  were  to  operate  the  Georgia 
branch  under  the  laws  of  Georgia,  furnish 
their  own  rolling  stock,  for  which  the  Geor- 
gia road  should  pay  a  certain  amount,  that 
each  road  should  contribute  its  proportion 
of  the  expense  and  the  net  proceeds  should 
be  divided  pro  rata,  a  depot  agent  on  the 
line  of  the  Georgia  corporation  is  such  an 
agent  of  that  company  as  can  be  served 
with  process  against  it,  though  he  is  em- 
ployed by  the  receivers  and  makes  remit- 
tances to  them,  by  whom  the  proceeds  are 
afterwards  distributed  under  the  contract. 
Georgia  Southern  R.  Co.  v.  Bigelow,  68  Ga, 
219. 

Under  Illinois  Act  of  Feb.  8,  1853,  pro- 
viding for  service  upon  a  corporation  by 
leaving  a  copy  with  its  president,  if  he  be 
found  in  the  county,  and  if  not,  by  leaving 
a  copy  with  the  clerk,  cashier,  secretary,  en- 
gineer,  conductor,  or  any  agent  of  the  com- 
pany found  in  the  county,  service  on  "  any 
agent "  is  sufBcient,  where  the  president  is 
not  found.  There  is  no  limitation  restrict- 
ing the  service  to  the  agent  whose  duty  re- 
quires him  to  attend  to  the  law  business  of 
the  corporation.  Chicago  &»  R.  I.  R.  Co.  v. 
Fell,  22  ///.  333.— Followed  in  Chicago  & 
R.  I.  R.  Co.  V.  Whipple.  22  111.  105. 

In  a  suit  against  a  corporation  not  resid- 
ing or  doing  business  in  the  state,  and  hav- 
ing no  office  or  place  of  business  in  the 
state,  service  upon  an  agent  appointed  by  the 
land  commissioner  of  the  corporation  whose 
business  it  is  to  assist  in  making  sales  will 
not  give  the  court  jurisdiction,  such  person 
not  being  an  agent  of  the  corporation,  in 
the  sense  of  the  statute.  Union  Pac.  R.  Co. 
V.  Miller,  87  ///.  45,  18  Am.  Ry.  Rep.  400. 

111.  Rev.  St.  1874,  ch.  79,  §  21,  requires 
summons  against  a  corporation  to  be  served 
on  its  president,  secretary,  superintendent, 
general  agent,  cashier,  or  principal  clerk,  if 
they,  or  any  of  them,  can  be  found  in  the 
county;  and  it  is. only  when  such  officers 


are  not  found  in  the  county  that  process 
may  be  served  on  some  other  agent.  St. 
Louis,  V.  Sf  T.  H.  R.  Co.  v.  Dawson.  3  ///. 
App.  118.— Quoting  St.  Louis,  A.  &  T.  H. 
R.  Co.  V.  Dorsey,  47  111.  289. 

A  return  is  not  sufficient  which  simply 
states  that  the  process  was  served  upon  "  an 
agent  "  of  the  corporation,  without  showing 
that  he  was  one  designated  by  the  statute. 
Union  Pac.  R.  Co.  v.  Pillsbury,  29  Kan.  652. 
— Followed  in  Dickeison  v.  Burlington 
&  M.  R.  R.  Co.,  44  Am.  &  Eng.  R.  Cas.  465, 
43  Kan.  702. 

The  "  general  or  special  agent  "  of  a  cor- 
poration upon  whom  a  summons  in  garnish- 
ment may  be  served  under  Mich  Comp.  L., 
§  6463,  is  an  agent  having  a  general  or 
special  controlling  authority,  either  gen- 
erally or  in  respect  to  some  particular  de- 
partment of  corporate  business.  Lake  Shore 
&*  M.  S.  R.  Co.  v.  Hunt,  39  Mich.  469. 

Service  of  process  on  a  corporation  other 
than  a  railroad  or  telegraph  company  must, 
under  the  laws  of  Mississippi,  be  made  on 
the  president  or  other  head  of  the  corpora- 
tion, cashier,  or  treasurer,  or  in  such  man- 
ner as  the  court  may  direct.  Service  upon 
a  mere  agent  is  not  sufficient  to  bring  the 
corporation  within  the  jurisdiction  of  the 
court,  or  authorize  final  judgment  against 
it,  by  default.  Southern  Exp.  Co.  v.  Craft, 
43  Miss.  508. 

Where  the  property  of  a  company  is  in 
the  hands  of  a  receiver,  service  of  process 
upon  the  agent  of  the  receiver  will  give  no 
jurisdiction  over  the  company.  Heath  v. 
Missouri,  K.  Gm  T.  R.  Co.,  83  Mo.  617.— 
Distinguishing  Ohio  &  M.  R.  Co.  '/. 
Fitch,  20  Ind.  498;  McKinney  v,  Ohio  & 
M.  R.  Co.  22  Ind.  99 ;  Louisville,  N.  A.  & 
C.  R.  Co.  V.  Cauble,  46  Ind.  277.— Dis- 
tinguished IN  Proctor  V.  Missouri,  K.  & 
T.  R.  Co.,  42  Mo.  App.  124. 

At  common  law  process  must  be  served 
on  the  principal  officer  of  a  corporation 
within  the  jurisdiction  creating  it ;  but  the 
corporation  can  waive  this  requirement  and 
consent  to  be  served  in  a  different  manner, 
and  when  it  does  so  it  stands  on  the  same 
footing  as  natural  persons.  When  it  avails 
itself  of  the  privilege  of  doing  business  in  a 
state  whose  laws  authorize  it  to  be  sued 
there  by  service  on  an  agent,  its  assent  to 
that  mode  of  service  is  implied.  Merchants' 
Mfg.  Co.  v.  Grand  Trunk  R.  Co.,  1 1  Abb. 
N.  Cas.  (N.  V.)  183. 

A   suit  cannot   be   legally   commenced 


hat  process 
agent.     Si. 

awson,  3  ///. 
A.  &  T.  H. 

lich  simply 
ed  upon  "an 
lout  showing 
the  statute. 
29  Kitn.  652. 
Burlington 
R.  Cas.  465, 


nt' 


:h 


of  a  cor- 
s  in  garnish- 
Comp.  L,, 
a  general  or 
either    gen- 
particular  de- 
Lake  Shore 
ich.  469. 
ioration  other 
ompany  must, 
)i,  be  made  on 
f  the  corpora- 
in  such  man- 
Service  upon 
It  to  bring  the 
diction  of  the 
Igment  against 
•p.  Co.  V.  Craft, 

company  is  in 
irice  of  process 
'er  will  give  no 
my.  Heath  v. 
83  Mo.  617.— 
M.  R.  Co.  '/. 
[ley  V.  Ohio  & 
lisville,  N.  A.  & 
nd.  277.— Dis- 
Missouri,  K.  & 

must  be  served 

a  corporation 

ing  it ;  but  the 

equirement  and 

flferent  manner. 

Is  on  the  same 

When  it  avails 

ng  business  in  a 

it  to  be  sued 

It,  its  assent  to 

ed.   Merchants' 

R.  Co.,  1 1  Abb. 

Ily   commenced 


PROCESS,  20,  30. 


1093 


against  a  railroad  corporation  for  loss  of 
baggage  by  the  service  of  summons  upon  a 
baggage  master  in  its  employ.  He  is  not 
such  a  "  managing  agent "  as  the  statute 
contemplates.  But  a  general  appearance 
waives  the  irregularity  of  such  service. 
Flynn  v.  Hudson  River  R.  Co.,  6  How, 
Pr.  (N.  Y.)  308.— Reviewed  in  Emerson 
V.  Auburn  &  O.  L.  R.  Co.,  13  Hun  150. 

Under  Va.  Acts  1883-84,  p.  701,  service 
on  any  corporation  other  than  a  bank  of 
circulation  may  be  on  any  agent  thereof  in 
the  county  or  corporation  in  which  he  re- 
sides, or  in  which  the  principal  office  of  the 
company  is  located,  whatever  may  be  the 
employment  of  such  agent.  Norfolk  <&-  W. 
R.  Co.  v.  Cottrell,  31  Am.  &^  Eng.  R.  Cas. 
235,  83  Va.  512,  3  5.  E.  Rep,  123. 

20.  General  passenger  agent. —  A 
general  passenger  agent  for  the  state  hav- 
ing an  office  in  a  county  other  than  one 
through  which  the  road  runs  is  such  an 
agency  as  is  contemplated  by  the  statute. 
Service  upon  such  agent  will  bind  the  com- 
pany. St.  Louis  &•  S,  F,  R,  Co,  v.  Traweek, 
84  Tex,  65,  195.   W.  Rep.  370. 

30.  Managing  agents.— (i)  In  gen- 
eral.— Where  a  foreign  railroad  corporation 
has  an  office  .\  the  state  in  which  a  sub- 
stantial portion  of  its  business  is  transacted 
by  a  person  designated  by  itself  as  a  general 
agent,  although  followed  by  words  indicat- 
ing his  agency  to  be  confined  to  some  one 
department,  such  agent  is  a  "  managing 
agent  "  within  the  meaning  of  N.  Y.  Code 
Civ.  Pro.,  §  432,  as  to  the  service  of  summons 
upon  a  foreign  corporation  defendant,  and 
a  service  upon  him  is  valid  and  binding 
upon  the  corporation.  Tuchband  v.  Chicago 
&'A,  R,  Co,,  40  Am.  (S-  Eng.  R.  Cas.  612, 
115  A'.  Y,  437.  17  Civ,  Pro,  424,  22  A^.  E. 
Rep.  360,  26  A^.  Y.  S.  R.  440 ;  affirming  53 
Hun  629,  24  A'.  Y.  S.  R.  236,  5  A^.  Y.  Supp. 
493.  2  Silv,  Sup.  Ct.  352,  16  Civ.  Pro.  241. 
— Following  Palmer  v.  Pennsylvania  Co., 
35  Hun  369 ;  Hiller  v.  Burlington  &  M.  R. 
R.  Co.,  70  N.  Y.  224  ;  Pope  v.  Terre  Haute 
C.  &M.  Co.,  87N.  Y.  137. 

N.  Y.  Code  Civ.  Pro.,  §  432,  does  not  spec- 
ify the  extent  of  the  agency  required  to 
bind  a  corporation  by  service  of  process, 
except  that  the  person  upon  whom  service 
is  made  must  be  "  a  managing  agent." 
Every  object  of  the  service  is  attained  when 
the  agent  served  is  of  sufficient  character 
and  rank  to  make  it  reasonably  certain  that 
the  defendant  will  be  apprised  of  the  ser- 


vice made.  The  statute  is  satisfied  if  he  be 
a  managing  agent  to  any  extent.  Palmer  v. 
Pennsylvitnia  Co.,  35  Hun  {N.  Y.)  369,  2 
How.  Pr.  N.  S.  1 56  ;  appeal  dismissed  in  99 
N.  Y.  679.— Distinguished  in  Winslow  v 
Staten  Island  R.  T.  R.  Co.,  51  Hun  298. 
Followed  in  Tuchband  v.  Chicago  &  A. 
R.  Co.,  115  N.  Y.  437,  17  Civ.  Pro.  424,  22 
N.  E.  Rep.  360,  26  N.  Y.  S.  R.  440,  2  Silv. 
Sup.  Ct.  352. 

Under  N.  Y.  Code,  §  134,  to  make  service 
of  process  upon  a  foreign  corporation  by 
service  upon  "  a  managing  agent "  legal,  the 
agent  must  be  one  whose  duties  extend  to 
all  the  transactions  of  the  company.  One 
whose  duties  extend  only  to  a  particular 
branch  or  department  of  the  company's 
business  is  not  a  managing  agent.  Brew- 
ster V.  Michigan  C.  R.  Co.,  5  How.  Pr.  {N. 
Y.)  183. 

(2)  Who  is  a  "  managing  agent." — An 
agent  who  is  invested  with  the  general 
conduct  and  control,  at  a  particular  place, 
of  the  business  of  a  corporation,  is.  Porter 
V.  Chicago  <S-  A^.  W.  R.  Co.,  i  Neb.  14. 

A  division  superintendent  of  an  impor- 
tant division  of  a  railroad,  who  is  at  a  dis- 
tance from  the  company's  general  office,  is. 
Brayton  v.  New  York,  L.  E,  &*  W,  R,  Co., 
72  Hun  602,  54  A'.  Y.  S.  R.  763,  25  N.  Y. 
Supp.  264.— Following  Palmer  v.  Penn- 
sylvania Co.,  35  Hun  370,  99  N.  Y.  679; 
Rochester,  H.  &  L.  R.  Co.  v.  New  York,  L. 
E.  &  W.  R.  Co.,  15  N.  Y.  S.  R.  686. 

A  division  superintendent,  whose  place 
of  business  includes  the  place  where  the 
cause  of  action  arises,  and  who  has  charge 
of  all  the  agents  and  servants  of  the  com- 
pany within  his  division,  is.  Rochester,  H. 
&*  L.  R.  Co.  V.  New  York,  L.  E.  &•  W.  R. 
Co.,  48  Hun  190,  IS  A^.  K  S.  R.  686,  14 
Civ.  Pro.  262.— Quoting  Palmer  v.  Penn- 
sylvania Co.,  35  Hun  369,  99  N.  Y.  679. 

A  superintendent  and  general  manager  of 
a  foreign  railroad  company  who  is  operat- 
ing a  railroad  in  the  state,  is.  Bank  of 
Commerce  v.  Rutland&*  IV.  R.  Co.,  10  How. 
Pr,  (N.  Y.)  I. 

Where  a  railroad  issues  a  freight  receipt 
with  the  name  of  a  certain  person  thereon 
as  agent,  he  will  be  deemed  a  "  managmg 
agent."  Palmer  v.  Pennsylvania  Co.,  2  How. 
Pr.  N.  S.  (N.  Y.)  156,  35  Hun  369,  mem.;  ap- 
peal dismissed  in  99  N.  Y.  679,  mem. 

(3)  And  who  is  not. — A  clerk  of  a  cor- 
poration who  sometimes  assists  in  the  work 
of  treasurer  in  drawing  checks,  but  where 


1094 


PROCESS.  81, 82. 


i  Mv> 


there  is  nothing  to  show  that  he  has  any 
part  in  the  nian<igement  of  the  company's 
business,  or  that  he  exercises  any  authority 
as  managing  agent,  Is  not.  Winsliiw  v. 
Staten  Island  N.  T.  A'.  Co.,  51  Nun  298,  21 
N.  y.  S.  A\  87,  4  A'.  K.  Supp.  169;  alarming 
2  N.  V.  Supp.  682,  15  Crv.  Pro.  202.— DIS- 
TINGUISHING Palmer  v.  Pennsylvania  Co., 
35  Hun  369. 

One  who  is  employed,  during  the  com- 
pany's pleasure,  to  superintend  the  running 
of  horse-cars  on  a  portion  of  a  railroad  not 
yet  completed  but  who  has  no  authority 
to  make  contracts  for  the  company,  except 
as  to  the  purchase  of  horses  and  feed,  and 
who  has  no  knowledge  of  the  company's 
books  or  of  its  affairs  generally,  is  not. 
Emerson  v.  Auburn  &*  O.  L.  R.  Co.,  13  Hun 
(iV.  Y.)  150.— Rkviewing  Brewster  w.  Mich- 
ijL'an  C.  R.  Co..  5  How.  Pr.  183;  Flynn  v. 
Hudson  River  R.  Co.,  6  How.  Pr.  308; 
Doty  V.  Michigan  C.  R.Co.,  8  Abb.  Pr.  427. 

31.  Local  agents.— After  judgment 
against  a  company  upon  a  summons  of  gar- 
nishment  served  upon  a  local  agent  alone 
the  service  will  be  held  sufficient  until  the 
judgment  is  set  aside,  unless  it  affirmatively 
appears  that  the  president  resided  in  the 
state  at  the  time.  Southern  Exp.  Co.  v. 
Skipper,  85  Ga.  565,  11  S.  E.  Rep.  871. 

A  return  of  a  summons  against  a  railroad 
company,  that  it  was  served  upon  a  certain 
individual  "who  is  the  local  freight  agent 
of  said  defendant "  at  a  certain  station,  is 
not  good,  under  Ind.  Code,  §  30,  which  des- 
ignates certain  officers  or  agents  upon  which 
process  may  be  served,  if  they  be  found,  and 
if  not  then  upon  some  other  agent.  Toledo, 
W.  <S-  W.  R.  Co.  V.  Owen,  43  Ind.  405. 

Service  of  a  notice  to  take  depositions 
upon  the  local  agent  of  a  foreign  railroad 
corporation,  on  whom  process  in  the  action 
may  be  served,  is  good,  in  the  absence  of 
anything  to  show  that  the  corporation  was 
prejudiced  or  misled  thereby.  Katzenstein 
V.  Raleigh  Sf  G.  R.  Co.,  78  N.  Car.  2S6. 

In  an  action  against  a  railroad  company, 
service  of  summons  upon  a  local  agent  is 
sufficient  to  bring  the  defendant  into  court. 
Katzenstein  v.  Raleigh  &*  G.  R.  Co.,  78  A'. 
Car.  286. 

Where  notice  of  another  proceeding  in 
the  action  is  served  upon  such  local  agent, 
it  is  sufficient,  in  the  absence  of  any  allega- 
tion that  thereby  any  injustice  has  befallen 
the  defendant.  Katzenstein  v.  Raleigh  &• 
G.  R.  Co.,  78  N.  Car.  286. 


Several  railroads  centering  in  &  certain 
place  maintained  a  joint  warehouse  which 
belonged  to  one  of  the  companies,  to  the 
cost  of  maintaining  which  the  other  com- 
panies, including  the  defendant, contnouted. 
An  agent  for  the  warehouse  was  employed 
by  the  company  owning  it,  subject  to  the 
approval  of  certain  of  the  other  companies, 
but  not  the  defendant.  He  was  not  on  the 
pay  rolls  of  defendant,  collected  no  moneys 
for  it,  made  no  contracts  for  it,  and  was  not 
subject  to  it  in  any  way.  Held,  that  he  was 
not  a  local  agent  of  defendant,  within  the 
meaning  of  i  Sayles'  Tex.  Rev.  St.  art. 
1223a,  providing  for  service  of  process  upon 
certain  officers  and  agents  of  corporations, 
including  "any  local  agent  within  this 
state."  Mexican  C.  R.  fo.  v.  Pinkney,  149 
V.  S.  194,  13  Sup.  Ct.  Rep.  859. 

Under  Tex.  Rev.  St.  art.  1223,  a  citation 
may  be  served  upon  a  local  agent  of  a  rail- 
road company  in  the  county  in  which  the 
suit  is  brought.  So  where  a  petition  al- 
leges that  defendant  company  has  an  office 
for  the  transaction  of  business  at  a  certain 
city  in  the  county  where  the  suit  is  brought, 
and  names  the  agent  in  charge  of  said 
office,  service  upon  such  agent  is  sufficient. 
Houston  &»  T.  C.  R.  Co.  v.  Burie,  9  Am.  &» 
Eng.  R.  Cas.  59,  55  Tex.  323,  40  Am.  Rep. 
808. 

Service  of  a  notice  to  take  depositions 
upon  the  local  agent  of  a  railroad  company 
is  legal  service,  under  the  Texas  statutes. 
Missouri  Pac.  R.  Co.  v.  Collier,  iZ  Am.  &* 
Eng.  R.  Cas.  281,  62  Tex.  318. 

32.  Statiou  ag^cnts.  —  A  summons 
upon  a  railroad  company  may,  by  statute, 
be  served  upon  a  station  agent,  or  other 
person  having  control  of  any  of  the  com- 
pany's business,  who  has  to  report  to  the 
company,  or  upon  the  clerk  or  agent  of  any 
station  in  the  county  where  it  is  issued.  Ex 
parte  St.  Lords,  I.  M.  &*  S.  R.  Co.,  16  Am.  S" 
Eng.  R.  Cas.  547,  40  Arh.  141. 

Leaving  a  copy  of  a  declaration  and  proc- 
ess with  a  depot  agent  is  not  sufficient  ser- 
vice on  an  individual  lessee  of  a  railroad, 
/ones  V  Georgia  Southern  R.  Co.,  66  Ga.  558. 
—  Distinguished  in  Singleton  v.  South- 
western R.  Co.,  21  Am.  &  Eng.  R.  Cas.  226, 
70  Ga.  464.  48  Am.  Rep.  S74.— Central  R. 
Co.  V.  Smith,  69  Ga.  268. 

Under  Ga.  Code,  §  3369a,  providing  for 
perfecting  service  on  a  railroad  company 
which  has  leased  its  road  by  sending  a  let- 
ter "to  the  president  of  the  leasing  com- 


PROCESS,  83. 


1095 


in  a  certain 
house  which 
anies,  to  the 
:  other  com- 
.contnouted. 
ras  employed 
ibject  to  the 
:r  companies, 
IS  not  on  the 
d  no  moneys 
,  and  was  not 

f,  that  he  was 
t,  within  the 
lev.  St.  art. 
process  upon 
corporations. 

within  this 
Pinkney,  149 

33,  a  citation 
gent  of  a  rail- 
in  which  the 
I  petition  al> 
has  an  office 
t  at  a  certain 
lit  is  brought, 
argc  of  said 
t  is  sufficient. 
trke,  9  Am.  S* 
,  40  Am.  Rep, 

ce  depositions 
road  company 
exas  statutes. 
er,  18  Am.  &* 

■  A  summons 
ly,  by  statute, 
;ent,  or  other 
y  of  the  corn- 
report  to  the 
ir  agent  of  any 
:  is  issued.  Ex 
Co.,  16  Am.  d" 

tion  and  proc- 
sufficient  ser- 
of  a  railroad, 
70., 66  Ga.  558. 
ton  V.   South- 

g.  R.  Cas.  226. 
\.— Central  R, 

providing  for 
road  company 

sending  a  let* 
i  leasing  com* 


pany,"  and  serving  the  depot  agent  of  the 
lessee,  by  "  the  leasing  company  "  is  meant 
the  lessor,  and  the  Ictte.  should  be  sent  to 
its  president.  Atlanta  &*  C.  A,  L.  R.  Co.  v. 
Harrison,  76  Ga.  757. 

Tiie  service  upon  a  "station  agent"  of  a 
railroad  company  of  the  notice  required  by 
Iowa  Code,  §  1289,  as  a  foundation  for  the 
recovery  of  double  damages,  is  sufficient, 
without  a  more  specific  showing  that  such 
agent  was  "  employed  in  the  management 
of  the  business  of  the  corporation."  Schlen- 
gener  v.  Chicago,  M.  «S>»  St.  P.  R,  Co.,  19 
Am.  &•  Efig.  R.  Cas.  625,  61  loiva  235, 16  JV. 
IV.  Rep.  103.— Following  Welsh  v.  Chi- 
cago, B.  &  Q.  R.  Co.,  53  Iowa  632. 

Where  an  information  is  filed  against  a 
railroad  company  for  obstructing  a  high- 
way, and  a  summons  is  issued  and  served  by 
delivering  a  copy  to  a  station  agent,  and 
one  to  an  attorney  and  director  of  the  com> 
pany,  the  process  and  service  arc  properly  set 
aside.  State  v.  0/tio  &•  M.  R.  Co.,  23  Iml. 
362. 

Under  Miss.  Code  1880,  §  1529,  service  on 
the  station  agent  of  a  railroad  company  is 
binding,  and  this  whether  its  principal  place 
of  business  is  in  the  county  in  which  the 
suit  is  brought  or  not.  Alabama  &•  V.  R. 
Co.  v.  Balding,  69  Afiss.  255,  \i  So.  Rep.  844. 

The  provision  of  the  Missouri  statute 
that  "  suit  may  be  commenced  by  serving 
the  summons  on  any  director,"  etc.,  is  per- 
missive and  additional  to  the  common  mode 
of  service,  and  not  mandatory  or  exclusive 
of  other  methods  of  service ;  so  service  up- 
on a  station  agent  is  sufficient.  Slate  v. 
Hannibal  (S-  SI.  J.  R.  Co.,  51  Mo.  532,  3 
Am.  Ry.  Rep.  266. 

A  summons  against-a  railroad  is  properly 
served  on  its  depot  agent.  Hudson  v.  St. 
Louis,  K.  C.  &>  N.  R.  Co.,  53  Mo.  525. 

Under  Mo.  Rev.  St.  §  2521,  where  service 
agaitist  a  railroad  corporation  is  made  on 
an  agent  other  than  the  president,  secre- 
tary, treasurer,  cashier,  or  other  chief  or 
managing  officer,  the  agent  served  must 
not  only  be  a  station  or  freight  agent,  but 
he  must  be  the  nearest  station  or  freight 
agent  in  the  county  where  the  action  is 
pending.  Farmer  v.  Medcap,  19  Mo.  App. 
250.— Following  Haley  v.  Hannibal  &  St. 
J.  R.  Co.,  80  Mo.  1 14. —  Werries  v.  Missouri 
Pac.  R.  Co.,  19  Mo.  App.  398. 

In  an  action  against  a  railroad  company, 
the  officer  made  a  return  that  he  had  served 
the  summons  on  a  certain  person  named, 


"  freight  agent  of  the  defendants'; "  that  no 
person  had  been  designated  by  the  company 
in  the  county  upon  whom  process  might  be 
served,  as  the  statute  provides,  and  that  no 
officer  of  the  company  resided  in  the  coun- 
ty. Held,  that  the  company  had  a  right  to 
show  that  the  service  was  unauthorized,  as 
it  had  a  resident  director  in  the  county. 
Wheeler  v.  Neio  York  &*  H.  R.  Co.,  24 
Barb.  (A'.  r.)4i4. 

Whether  service  on  a  mere  station  agent 
is  good,  quare.  Wagoner  v.  North  Caro- 
lina R.  Co.,  5  /ones  (N.  Car.)  367. 

Tayl.  Wis.  St.  1355.  §  20,  providing  that  in 
all  actions  for  damages  against  any  railroad 
company,  service  of  process  may  be  made 
upon  any  station  or  depot  agent  of  the  de- 
fendant, applies  to  actions  on  contract  for 
labor  or  services  performed.  Rut  he  v.  Green 
Bay  &*  M.  R.  Co.,  37  IVis.  344. 

Since  the  Act  of  Congress  of  March  3, 
1887,  allowing  receivers  to  be  sued  on  mat- 
ters connected  with  the  property  in  their 
hands,  without  previous  leave  of  the  court, 
includes  the  service  of  process,  and  where 
defendant  receivers  have  their  residence 
and  place  of  business  out  of  the  state,  ser- 
vice on  a  local  agent,  according  to  the  state 
law,  seems  to  be  good  service ;  but  to  remove 
any  doubt  the  court  made  an  order  that 
such  service  should  be  good.  Central  Trust 
Co.  V.  St.  Louis,  A.  &*  T.  R.  Co.,  40  Fed. 
/vV/.  426.— Followed  IN  Eddyz/.  Lafayette, 
49  Fed.  Rep.  807,  4  U.  S.  App.  247,  i  C.  C. 
A.  441. 

The  station  master  of  a  railway  company, 
the  head  office  of  which  is  not  in  Ontario, 
is  not  an  agent  on  whom  service  against 
the  company  can  properly  be  effected,  un- 
der C.  L.  P.  Act,  §  17.  Taylor  v.  Grand 
Trunk  R.  Co.,  4  Ont.  Pr.  300. 

33.  Ticket  ageHts.— A  booking  clerk 
employed  to  issue  tickets  although  the  only 
officer  of  a  Scotch  railway  company  in 
England,  is  not  a  head  officer  or  clerk  with- 
in the  Common  Law  Procedure  Act,  1852, 
g  16.  so  as  to  render  valid  the  service  of  a 
writ  upon  him.  Mackereth  v.  Glasgow  &»  S. 
W.  R.  Co.,  42  L.  J.  Ex.  82,  L.  R.  8  Ex.  149, 
21   W.  R.  339.  28  L.  T.  167. 

Iowa  Act  of  1862,  ch.  169,  §  6,  providing 
that  in  actions  against  railroads  service 
may  be  made  upon  any  station  or  ticket 
agent  employed  in  the  management  of  its 
business,  obviates  the  necessity  of  a  return 
of  "  not  found  "  as  to  the  company.  Brandt 
V.  Chicago,  R,  I.  &»  P.  R.  Co.,  26  Iowa  114. 


1096 


PROCESS,  34-37. 


I;! 


Service  on  a  railway  company  by  leaving 
a  copy  with  a  person  in  charge  of  a  depot 
as  ticlcet  agent  of  the  company,  the  com- 
pany having  designated  no  person  m  said 
county  upon  whom  summons  should  be 
served,  is  good,  wiihdut  specifying  in  ex- 
press terms  that  tlie  road  of  the  company 
nu\*  mto  that  county,  or  tliat  the  company 
transacts  business  therein.  Missouri,  K.  &^ 
T.  A'.  Co.  v.  Crowe,  9  Kan.  496. 

In  a  proceeding  under  Minn.  Gen.  St. 
1878,  ch.  34,  to  condemn  property  by  a  do- 
mestic corporation,  the  mode  of  service  of 
notice  provided  in  section  15,  is  exclusive, 
and  must  be  "upon  the  president,  secretary, 
or  any  director  or  trustee  of  such  corpora- 
tion ";  and,  therefore,  service  upon  any  act- 
ing ticket  or  freight  agent  is  not  legal. 
Jn  re  St.  Paul  &^  N.  P.  A\  Co.,  28  Am.  &* 
Eng.  R.  Cas.  255,  36  Afinn.  85,  30  N.  IV. 
Kep.  432. 

34.  Traveling  nKeiits.— The  provision 
of  Tenn.  Code,  §  2834,  that  "  when  a  cor- 
poration, company,  or  individual  has  an 
oHIice  or  agency  in  any  county  other  than 
that  in  which  the  principal  resides,  service 
ol  process  may  be  on  any  agent  or  clerk 
employed  therein,"  does  not  apply  to  a 
traveling  agent  of  a  railroad  company 
whose  business  is  to  solicit  patronage  in 
several  states,  and  who  has  no  fixed  resi- 
dence or  place  of  business.  (Deaderick, 
C.J.,  and  Turney,  I-,  dissenting.)  Chicago 
&*  A.  R.  Co.  v.  Walker,  16  Am.  &*  Eng.  R. 
Cas.  553,  9  Lea  (Tenn.)  475. 

35.  Attorneys.— Service  on  the  attor- 
ney of  a  railroad  company  in  proceedings 
to  open  a  street  across  its  premises  is  not 
authorized  by  statute.  Detroit,  M.  Sr*  T. 
R.  Co.  V.  Detroit,  49  Mich.  47.  12  iV.  W. 
Rep.  904. 

Where  a  foreign  corporation  has  failed  to 
designate  a  person  in  the  state  on  whom 
process  may  be  served,  as  required  by  N.  Y. 
Act  of  1855,  ch.  279,  service  of  a  summons 
on  the  general  solicitor  or  counsel  o(  the 
corporation  is  good.  Clews  v.  Rockford,  R. 
I.  <S-  St.  L.  R.  Co.,  49  How,  Pr.  (N.  V.) 
117. 

The  Texas  &  Pacific  railway  company 
is  not  a  non-resident,  and  service  upon  the 
attorney  of  record  of  a  writ  of  error  is  in- 
sufficient. Stephenson  v.  Texas  <&*  P.  R. 
Co.,  42  Tex.  162. 

30.  Conductors.— 111.  Act  of  1853,  pro- 
viding that  in  suits  against  incorporated 
companies  service  of  process  may  be  upon 


tlie  president,  or,  if  he  does  not  reside  in, 
or  IS  absent  from,  the  county,  then  on  any 
agent,  clerk,  cashier,  secretary,  engineer,  or 
conductor  found  in  the  county — held,  to  ap- 
ply to  foreign  corporations,  so  as  to  make 
service  on  an  agent  and  conductor  good,  no 
president  residing  in  the  state.  Mineral 
Point  R.  Co.  V.  Keep,  22  ///.  9.— Overruled 
IN  Nispel  V,  Western  Union  R.  Co.,  64  III, 
311.  Quoted  in  Galveston,  H.  &  S.  A.  R. 
Co.  V.  Gage,  63  Tex.  568. 

Service  of  process  upon  a  conductor  is 
sufficient  to  compel  the  appearance  of  the 
company.  New  Albany  6f  S.  R,  Co.  v.  Til* 
ton,  12  Ind.  3.— Followed  in  New  Albany 
&  S.  R.  Co.  V.  Mead,  13  Ind.  258. 

In  an  action  for  killing  stock,  the  sum- 
mons commanded  the  officer  to  summon  the 
N.  A.  &  S.  "  Railroad  Co.,  their  agent,  or 
attorney,"  and  the  return  was  "  served  as 
commanded  by  copy  given  to  conductor  P., 
conductor  on  express  train."  Held,  that  the 
service  was  sufficiently  shown  under  the  act 
of  1853,  p.  113.  New  Albany  &*  S.  R.  Co.  v. 
Powell,  1 3  Ind.  373.  Jeffersonville,  M.  &*  I. 
R.  Co.  V.  Dunlap,  29  Ind.  426. 

Michigan  Act  of  March  28,  1849,  authoriz- 
ing the  service  of  process  against  railroad 
companies  upon  the  conductor  of  any  freight 
or  passenger  train,  is  not  repealed  by  the 
Justices'  Act  of  1S55,  ji  49,  so  far  as  it  relates 
to  justices'  courts.  Fowler  v.  Detrot  &'  .'. 
R.  Co.,  7  Mich.  79. 

A  railroad  conductor  is  a  "sp 
of  a  company,  within  the  nu 
Ind.  Rev.  St.  35.  §  36,  authorize 
vice  of  process  upon  railroad  coinpani'  3 
by  serving  the  same  on  certain  designatid 
officers,  or  on  any  "  general  or  special  agent." 
New  Albany  &•  S.  R.'  Co.  v.  Grooms,  9  Ind. 

243- 

Service  on  a  railroad  company  is  had  in 
compliance  with  Ind.  Rev.  St.  1881,  §  4027, 
when  a  copy  is  delivered  to  a  conductor  on 
any  train  on  the  road  passing  into  or  through 
the  county.  The  omission  of  the  Christian 
name  of  the  conductor  is  not  good  ground 
for  quashing  the  return.  Cincinnati,  H.  &• 
I.  R.  Co.  v.  Mc  Doug  all,  108  Ind.  179,  8  N. 
E.  Rep.  571.— Followed  in  Baltimore  4 
O.  R.  Co.  V.  Brant,  132  Ind.  37. 

37.  Section  foreman.— The  service  of 
a  summons  against  a  railway  company  upon 
its  section  foreman  as  "  a  legal  superintend- 
ent of  repairs,"  under  Kan.  Civ.  Code,  §  68a, 
is  valid,  where  it  appears  th.it  no  person 
has  been  designated  by  the  company  upon 


^nt 
g   ot    2 
the  ser- 


[reside  in, 

on  any 

Iginecr,  or 

\e/d,  to  ap- 

to  make 
■  good,  no 

Mineral 
['ERRULED 
:o..  64  III. 

S.  A.  R. 

iductor  is 

ice  of  the 

\Co.  V.  Til- 

!w  Albany 

the  sum- 
mnioii  ihe 

agent,  or 
' served  as 
iductor  P., 
Id,  that  the 
der  the  act 
S'.  A'.  Co.  V. 
e,  M.  &-  I. 

'),  authoriz- 
st  railroad 
any  freight 
led  by  the 
ts  it  relates 
iro'f  (J-  \.. 

ont  •• 
g  ot  2 
the  ser- 
conipani'-'s 
designated 
cial  agent." 
wwj,  9  /«</. 

K  is  had  in 
38 1,  §  4027, 
iductor  on 
or  through 
:  Christian 
od  ground 
nati,  H.  S* 

'.  179.  8  A^. 
altimore  & 

i  service  of 
ipany  upon 
iperintend- 
!ode,  §  68a, 
no  person 
pany  upon 


PROCESS,  38-40. 


109": 


II 


whom  service  can  be  made  in  that  county. 
St.  Louis  6-  S.  F.  A'.  Co.  v.  Ve  Ford.  38 
Kan,  299,  16  Pac.  Rep.  442. 

38.  Track  iiiaHtor.— A  track  master  is 
neitlier  an  officer  nor  a  clerk  engaged  in  the 
management  of  the  business  of  a  corpora- 
tion, within  the  msaning  of  Iowa  Code,  § 
1727,  nor  a  president  or  secretary  within  the 
meaning  of  the  act  of  1853,  §  17 ;  and,  there- 
fore, service  of  an  original  notice  upon  such 
person  is  not  good,  where  it  appears  that 
the  corporation  has  officers.  Richardson  v. 
Burlington  &>  M.  R.  Co.,  8  Iffwa  260. 

30.  Time  of  service. —  In  an  action 
against  a  railroad  company,  before  a  justice 
of  the  peace,  for  diimages  occasioned  by 
killing  plaintiff's  horse,  service  of  process 
upon  a  conductor  ten  days  before  the  day 
set  for  trial  is  sufficient.  New  Albany  &•  S, 
R.  Co.  v.  McNamara,  1 1  Ind.  543. 

Ind.  Act  of  March  i,  1853,  providing  that 
in  actions  for  compensation  for  animals 
killed  or  injured  by  a  railroad  company  in  this 
state  the  justice  of  the  peace  before  whom 
such  action  is  prosecuted  "shall  cause  at 
least  ten  days'  notice  to  be  served  on  the 
company  defendant,  by  service  of  summons 
by  copy  on  any  conductor  of  any  train  pass- 
ing through  said  county,"  is  confined  to 
actions  against  the  corporation.  Such  ser- 
vice will  not,  when  there  is  no  appearance, 
authorize  a  judgment  against  individuals, 
although  they  may  represent  themselves  to 
be  lessees,  and  have  charge  of  the  rolling 
stock  of  the  road,  Wright  v.  Gossett,  15 
Ind.  119. 

In  actions  against  a  railroad  corporation 
whose  principal  office  is  not  in  the  state,  the 
summons  must  be  served  thirty  days  before 
the  term  to  which  it  is  returnable,  or  the 
cause  must  be  continued.  Ohio  &*  M.  R. 
Co.  v.  Boyd,  16  Ind.  438. 

Perhaps,  where  process  has  been  served 
ten  days  before  court,  the  defendant  should 
be  deemed  to  be  properly  in  court,  unless  it 
is  made  to  appear  that  its  principal  office 
is  not  in  the  state.  Ohio  &*  M.  R.  Co.  v. 
Boyd,  16  Ind.  438. 

Ind.  Laws  of  1861  (Sp.  Sess.  p.  78),  which 
require  fifteen  days'  service  of  process  upon 
railroads,  where  the  principal  office  o 
the  company  is  without  the  state,  is  re- 
pealed by  the  act  of  1863.  Toledo,  L.  &-  B. 
R.  Co.  v.  Shively,  26  Ind.  181.— Distinguish- 
ing Toledo  &  W.  R.  Co.  v.  Talbert,  23  Ind. 
438. 

Where  the  action  is  before  a  justice  by  a 


non-resident  against  a  resident  corporation, 
what  is  known  as  a  short  summons  under 
New  York  statute  of  1831,  p.  403,  is  proper. 
Wilde  V.  New  York  &*  H.  K.  Co,,  i  Hilt. 
{N.  v.)  302. 

A  railroad  company  is  to  be  treated  as  an 
inhabitant  and  freeholder  in  each  county  in 
which  its  track  is  laid  ;  and  is,  therefore,  en- 
titled, when  sued  before  a  justice  of  the 
peace  in  a  town  through  which  its  road 
passes,  to  what  is  known  as  a  long  summons, 
under  the  New  York  statute,  returnable  in 
not  less  than  six  nor  more  than  twelve  days 
from  the  time  of  service.  Belden  v.  New 
York&'H.  R.Co.,  15  How.  Pr.  (N.  Y.)  17. 
—Following  Johnson  v.  Cayuga  &  S. 
R.  Co.,  II  Barb.  621;  Sherwood  v.  Sara- 
toga &  W.  R.  Co.,  1 5  Barb.  650. — Sherwood 
V.  Saratoga  &'  IV.  R.  Co.,  1 5  Barb.  (N.  Y.) 
650.— Followed  in  Belden  v.  New  York  & 
H.  R.Co.,  ts  How.  Pr.  17. 

A  garnishee  summons  was  served  at  five 
o'clock  A.  M.  upon  the  general  solicitor  of 
a  railway  company,  who  did  not  know  that 
the  company  had  any  property  of  the  prin- 
cipal defendant  in  its  possession,  whose 
business  did  not  require  him  to  have  such 
knowledge,  and  who  had  no  ready  means  of 
ascertaining  the  fact.  Within  two  and  one 
half  hours  afterwards  the  property  in  ques- 
tion was  delivered  to  the  consignee  at  a 
place  nearly  one  hundred  miles  distant  from 
the  place  of  service.  Held,  that,  as  a  matter 
of  law,  the  company  was  not  liable  as  gar- 
nishee. Bates  v.  Chicago,  M.  &»  St.  P.  R. 
Co.,  14  Am.  &•  Eng.  R.  Cas.  700,  60  Wis, 
296,  19  A'.  W.  Rep.  72,  50  Am.  Rep.  369. 

40.  Place  of  service.  —  (i)  Under 
American  statutes. — Where  a  citizen  of  an- 
other state  sues  in  a  federal  court  a  corpo- 
ration created  in  the  state  where  suit  is 
brought,  and  joins  as  a  defendant  an  individ- 
ual who  is  a  citizen  of  a  third  state,  service 
of  process  on  such  individual  in  the  state 
where  the  suit  is  brought  gives  the  court 
jurisdiction  over  him.  Mowrey  v.  Indian- 
apolis &»  C.  R.  Co.,  4  Biss,  ( U.  5.)  78. 

Under  the  Georgia  statute  which  provides 
that  the  lessees  of  any  railroad  shall  be  sub- 
ject to  the  same  jurisdiction  as  the  lessors 
were  before  the  lease,  service  of  process  is 
sufficiently  made  by  leaving  a  copy  of  the 
declaration  at  the  place  which  is  alleged  to 
be  the  principal  office  of  the  lessee  and  to 
have  been  the  principal  office  of  the  lessor. 
Hills  V.  Richmond  &*  D.  R.  Co.,  37  Am,  6* 
/:';/i,'-.  R.  Cas.  44,  37  Fed.  Rep.  660. 


I 


>  -. 


1098 


PROCESS,  40. 


m- 


Where  suit  is  brought  against  a  company 
in  the  county  where  the  injury  complained 
of  took  place,  and  the  sherifi  returns  that 
he  served  a  certain  person  as  agent  for 
defendant  at  a  depot  in  that  county,  and  a 
second  original  of  the  declaration  and  proc- 
ess also  has  been  served  upon  the  president 
of  the  company,  such  service  is  sufficient. 
Mitchell  \.  Southwestern  R.  Co.,  75  Ca.  398. 

In  an  action  under  Ky.  Civ.  Code,  §73, 
against  a  common  carrier,  the  summons 
may  be  served  where  the  action  is  brought 
upon  defendant's  chief  officer  or  agent  who 
resides  there.  Adams  Exp,  Co.  v  CremJiaw, 
78  Ky.  136. 

Under  Mo.  Rev.  Code  1855,  p. 376.  §  2,  proc- 
ess may  be  served  on  a  railroad  company  in 
any  county  where  there  is  any  office  or  place 
of  business  of  the  company,  although  the 
president  or  chief  officer  may  not  be  found 
in  the  county,  or  reside  therein.  Dixon  v. 
Hannibal  &*  St.  J.  R.  Co.,  31  Mo.  409.— 
Quoted  in  Hoen  v.  Atlantic  &  P.  R.  Co., 
64  Mo.  561. 

Under  the  Missouri  statute,  suits  against 
corporations  can  be  brought  either  in  the 
county  where  the  cause  of  action  accrued,  or 
in  the  county  where  such  corporation  has  or 
usually  iceeps  an  office  or  agent  for  the  trans- 
action of  its  usual  business,  at  the  option  of 
the  plaintiff.  Wagn.  Mo.  St.  294,  §  26, 
provides  for  an  enlargement  and  extension 
of  service  by  issuing  process  to  a  different 
county  from  where  the  suit  is  brought, 
when  the  officers  of  the  company  do  not  re- 
side there.  Mikel  v.' St.  Louis,  K.  C.  «S-  N. 
R.  Co.,  54  Mo.  145. 

Since  the  passage  of  the  Act  of  Congress  of 
March  3,  1887,  providing,  inter  alia,  that  re- 
ceivers may  be  sued  without  leave  of  court, 
process  against  the  receiver  of  a  railroad 
may  be  made  by  service  upon  the  clerk  or 
any  station  agent  upon  the  road.  Proctor 
V.  Missouri,  K.  &*  T.  R.  Co.,  42  Mo.  A  pp. 
124.— Distinguishing  Heath  v.  Missouri, 
K.  &  T.  R.  Co.,  83  Mo.  617. 

Where  an  attempted  service  of  summons 
upon  a  California  corporation  is  made  in 
Nevada,  and  a  subsequent  service  in  Cali- 
fornia, under  Nev.  Practice  Act,  §  29,  it 
matters  not  whether  an  order  refusing  to 
quash  the  first  service  was  correct  or  not,  it 
appearing  that  the  second  service  was  good, 
Caples  V.  Central  Pac.  R.  Co.,  6  Nev.  265. 

Plaintiff  contracted  with  defendant,  a 
foreign  corporation,  for  a  term  of  years.  Ins 
business  being    to    procure    emigrants    to 


purchase  and  settle  on  lands  in  Nebraska. 
He  was  required  to  maintain  an  office  in 
New  York  city,  but  to  travel  in  Europe. 
The  office  was  maintained  until  terminated 
by  defendant,  when  plaintiff  sued  for  ser- 
vices rendered,  and  datr.ages  for  breach  of 
contract.  Held,  that,  as  plaintiff's  principal 
duties  were  to  be  discharged  in  New  York, 
the  cause  of  action  arose  in  that  state ; 
therefore  service  upon  one  of  defendant's 
directors  while  he  was  temporarily  in  the 
state  on  his  own  business  was  good  service, 
although  defendant  had  no  property  in  the 
state.  Niller  v.  Burlington  &*  M.  R.  R.  Co., 
70  JV.  Y.  223,18  Am.  Ry.  Rep.  557.— Fol- 
lowed IN  Tuchband  v.  Chicago  &  A.  R. 
Co.,  115  N.  Y.  437,  17  Civ.  Pro.  424,  22  N. 
E.  Rep.  360,  26  N.  Y.  J.  R.  440;  Porter  v. 
Sewell  Car  Heating  Co.,  17  Civ.  Pro.  386,  7 
N.  Y.  Supp.  166. 

Under  N.  Car.  Rev.  St.  ch.  26,  directing 
how  service  of  process  shall  tie  made  on  a 
corporation,  service  on  the  president  or  other 
officer  of  a  corporation  may  be  in  the  county 
in  which  he  actually  resides,  or  in  the  one 
which  is  his  official  residence,  and  where  he 
carries  on  and  attends  to  the  business  of  the 
corporation.  Governor  of  North  Carolina 
V.  Raleigh  (S-  G.  R.  Co.,  3  /red.  Eg.  (N. 
Car.^  471. 

)  '.irvice  upon  an  official  of  the  corpora- 
tion be  not  made  in  the  proper  county, 
but  the  sheriff  murns  it  executed,  stating 
on  whom  it  has  been  served,  the  corpora- 
tion can  only  take  advantage  of  the  irregu- 
larity by  a  plea  in  abatement.  Governor  of 
North  Carolina  v.  Raleigh  &•  G.  R.  Co.,  3 
/red.Ef.(N.  Car.)  471. 

Service  of  notice  of  garnishment  on  a 
depot  agent  of  a  railroad  company  in  a 
county  other  than  that  in  which  the  com- 
pany has  its  chief  business  office  is  not 
notice  to  the  company,  it  not  appearing  that 
the  matter  in  any  way  grew  out  of  the  busi- 
ness of  the  agency,  nor  any  reason  being  as- 
signed for  failing  to  serve  it  on  the  presi- 
dent, secretary,  treasurer,  or  a  director. 
Lambreth  v.  Clarke,  \o  Ileisk.  {Tenn.)  32. 

If  a  non-resident  corporation  carries  on 
business  in  the  state,  the  venue  in  suits 
against  it  is  fixed  by  statute  in  any  county 
where  such  company  may  have  an  agency, 
and  not  in  any  other  county.  St.  Louis,  A. 
&•  T.  R.  Co.  V.  Whitley,  77  Tex.  126,  13  S. 
IV.  Rep.  853. 

(2)  Under  English  and  Canadian  .tatutes. 
—Under  the   Railways  Clauses  Act,  1845, 


Nebraska. 

office  in 

Europe, 

rminated 

for  ser- 

breach  of 

principal 

ew  York, 

at  state ; 

fendant's 

ly  in  the 

d  service, 

rty  in  the 

A'.  A'.  Co., 

7.— FoL- 

A.   R. 


PROCESS,  41,  42. 


1099 


§  138,  the  principal  office  of  a  railway  com- 
pany IS  at  the  place  where  its  general  busi- 
ness is  transacted,  where  its  secretary  re- 
sides, and  where  orders  are  issued,  although 
one  of  its  semi-annual  meetings  is  held  at 
the  other  terminus  of  the  road,  from  which 
place  one  half  of  the  directors  are  chosen. 
Carton  v.  Great  IVestern  Ji.  Co.,  El. ,  Bl,  &* 
El.  837,  4  Jui.  N.  S.  1036.  27  L.  J.  Q.  B. 

375- 

A  railway  company  carries  on  its  business, 
within  the  meaning  of  9  &  10  Vict.  c.  95 
(County  Courts  Act),  §  60,  at  the  principal 
stations  where  the  general  superintendence 
is  centered,  and  not  at  a  station  where  the 
local  management  of  any  portion  of  the 
line  is  conducted.  Brown  v.  London  &»  N, 
IV.  R.  Co.,  32  L.  J.  Q.  B.  318,  \i  W.  R. 
884,  8  L.  T.  695.— Followed  in  Le  Tail- 
leurf.  South  Eastern  R,  Co.,  L.  R.  3  C.  P.  D. 
18.— 5.  P.  Shields  V.  Great  Northern  R.  Co., 
T  Jur.  N.  S.  631,  30  L.  J.  Q.  B.  331,  9  IV. 

-A'.  739- 

Where  a  company's  line  is  partly  in  Scot- 
land and  partly  in  England,  the  principal 
office  being  in  Scotland,  and  its  act  includes 
the  Companies  Clauses  Act  1845,  a  writ 
may  be  served  on  the  company's  secretary 
while  attending  a  meeting  in  London. 
Wilson  V.  Caledonian  R.  Co.,  6  Railw.  Cas. 
772,  5  Ex.  822,  I  L.,  M.  (S-  P.  731.  iS/«r. 
1 7,  20  L.  J.  Ex.  6. 

Service  on  a  Scotch  railway  company 
whose  principal  place  of  business  is  in  Glas- 
gow cannot  be  made  at  a  station  in  Eng- 
land merely  on  the  ground  that  the  road 
has  an  ancillary  incorporation  in  England. 
Palmer  v.  Caledonian  R.  Co.,  [1892]  i  Q.  B. 
823;  reversing  [1892]  i  Q.  B.  607.— Re- 
ferring TO  Newby  v.  Colt's  P.  F.  Mfg. 
Co..  L.  R.  7  Q.  B.  293;  Garton  v.  Great 
Western  R.  Co.,  El.,  Bl.  &  El.  837. 

Service  of  process  against  the  Grand 
Trunk  railway  company,  at  one  of  its  sta- 
tions, is  not  sufficient.  Service  ought  to 
be  made  at  its  principal  place  of  business. 
Legendre  v.  Grand  Trunk  R.  Co.,  6  Low. 
Can.  105. 

41.  Leaving  process  or  copy. — 
Where  a  corporation  is  summoned  as  trus- 
tee, service  of  the  writ  by  leaving  a  copy  at 
the  place  of  last  and  usual  abode  of  the 
treasurer,  pr  other  proper  officer,  is  suffi- 
cient. Harris  v.  Somerset  Sr*  K.  R.  Co.,  47 
Me.  298. 

And  after  the  corporation  has  appeared, 
submitted  to  the  jurisdiction  of  the  cjurt, 


and  made  disclosure,  and  judgment  has  been 
entered,  it  is  too  late  to  object  to  a  service 
defective  in  such  a  particular.  Harris  v. 
Somerset  <S-  K.  R.  Co.,  47  Me.  298. 

Vt.  Comp.  St.  ch.  31,  §  19,  providing  for 
service  of  writs  upon  corporations  by  leav- 
ing copies  with  any  of  their  officers  or  stock- 
holders in  the  absence  of  their  clerks,  has 
reference  exclusively  to  the  corporations 
within  the  state.  Ha/l  v,  Vermont  «S-  M. 
R.  Co..  28  Vt.  401. 

Defendar  .\as  sued  as  "the  Burlington 
and  Lamoil  .  Railroad  Company,  a  company 
organized  under  the  laws  of  this  state." 
The  service  of  the  writ  was  like  that  required 
by  the  statute  on  a  corporation,  by  leaving 
a  copy  with  its  clerk.  A  motion  was  Hied 
to  dismiss  on  the  ground  that  the  service 
was  illegal ;  but  it  did  not  specify  any  error, 
or  the  method  of  correcting  it.  Held:  (1) 
that,  as  there  is  a  general  law  under  which 
railroad  corporations  can  be  organized,  it  is 
presumed  that  defendant  is  a  corporation 
organized  under  this  law ;  (2)  that  the  mo- 
tion— if  the  objection  is  available  on  motion 
— is  faulty  in  not  pointing  out  both  the 
defect  and  its  correction.  A^-^  v.  Burlington 
&*  L.  R.  Co.,  60  Vt.  585.  1 1  Atl.  Rep.  689. 

42.  Service  by  publicatiou.  —  To 
support  a  decree  for  foreclosure  against  an 
absent  defendant,  a  railroad  mortgage  trus- 
tee, brought  in  by  publication,  the  publica- 
tion for  the  full  period  required  is  necessary. 
Publication  for  four  lunar  months  is  not 
sufficient  tvhere  the  statute  directs  publica- 
tion for  "  four  months."  Such  defendant 
is  not  estopped  by  a  decree  and  sale  of  the 
road  from  showing  in  a  foreclosure  suit 
subsequently  brought  by  him  that  by  reason 
of  defective  publication  the  court  acquired 
no  jurisdiction  over  him.  Guaranty  Trust 
&*  S.  D.  Co.  V.  Green  Cove  S.  <S-  M.  R.  Co., 
45  Am.  &*  Eng.  R.  Cas.  689,  139  U.  S.  137, 
II  Sup.  Ct.  Rep.  512. 

A  highway  was  established  over  the  track 
of  a  foreign  railroad  corporation,  and  no 
notice  was  given  to  it,  except  by  publication, 
though  it  had  agents  in  the  coimty  where 
the  highway  was  established.  Iowa  Code, 
§  936,  provides  that  a  notice  shall  be  served 
on  each  owner  or  occupier  of  land  lying  in 
a  proposed  hignway,  or  abutting  thereon, 
as  shewn  by  the  transfer  books  in  the  audi- 
tor's office,  who  resides  in  the  county.  The 
company  owned  its  right  of  way,  but  this 
was  not  shown  on  the  transfer  books  in  the 
auditor's  office.     Held,  that  the  notice  •va?. 


1100 


PROCESS,  43-40. 


I  mt 


siiflicient.  S/a/e  cx  re/,  v.  Chicago,  D.  &» 
Q.  K.  Co.,  68  Jffwa  135.  26  A^.  W.  Rep.  37.— 
DrsTiNGUiSHED  IN  Chicago,  R.  I.  &  P.  R. 
Co.  V.  Ellithorpe,  78  Iowa  415,  43  N.  W. 
Rep.  277. 

Where  a  foreign  corporation  operating  a 
railroad  in  the  state  has  failed  to  file  with 
the  secretary  of  state  a  copy  of  its  articles 
of  incorporation  or  charter,  as  required  by 
Iowa  Laws  of  1880,  ch.  128,  and  the  transfer 
books  of  a  county  through  which  the  road 
runs  fails  to  show  the  company's  ownership 
of  the  road,  a  highway  may  legally  be  estab- 
lished across  its  right  of  way  in  that  county 
without  personal  service  of  the  notice  re- 
quired by  section  936  of  the  Code.  Service 
by  publication  is  sufficient  in  such  case. 
State  V.  Chicago,  Af.  6-  St.  P.  R.  Co.,  80 
Iowa  586,  46  A^.  U\  Rep.  741. 

43.  Substituted  service  —  Service 
out  of  the  jurisdiction. — Substituted 
service  of  process  on  a  corporation  must 
show  the  facts  which  confer  jurisdiction. 
Caro  V.  Ongon  &•  C.  R.  Co.,  10  Oreg.  510. 

An  order  allowing  service  upon  a  foreign 
corporation  out  of  the  jurisdiction  should 
be  of  a  notice,  not  a  copy,  of  the  writ.  A 
writ  for  service  in  Manitoba  may  be  issued 
concurrently  with  one  for  service  upon  an 
alien  out  of  the  jurisdiction.  Crotty  v. 
Oregon  &*  T.  R.  Co.,  3  Man.  182. 

44.  Proof  of  service,  generally.— 
Where  process  against  a  corporation  is  re- 
turned as  served  upon  its  president,  it  is 
necessary  that  proof  of  his  official  character 
should  be  made  to  the  court,  and  so  appear 
on  the  record,  to  sustain  a  judgment  by  de- 
fault.    Wetumpka  6-  C.  R.  Co.  v.  CoU,  6  Ala. 

655- 

To  sustain  a  judgment  by  default  against 
a  corporation,  it  is  requisite  that  it  should 
appear  otherwise  than  by  the  sherif!'s  re- 
turn, or  the  clerk's  statement,  that  the  per- 
son upon  whom  the  summons  and  com- 
plami  were  served  occupied  such  relation 
to  defendant  that  defendant  could  legally 
be  made  a  party  by  service  on  such  person. 
Ala.  Rev.  Code,  §  2569,  does  not  authorize 
proof,  either  by  plaintiff's  affidavit,  or  by 
the  clerk's  statement,  that  the  person  served 
occupied  the  relation  above  described. 
Southern  Exp.  Co,  v.  Carroll,  42  Ala.  437. 

Under  Tex.  Rev.  St.  art.  1223,  service  may 
be  made  on  the  local  agent  of  a  railroad 
company  representing  it  in  the  county 
where  the  suit  is  brought,  but  where  a  pe- 
tition alleges  that  the  company  has  a  lo- 


cal agent  in  the  county,  but  does  not  state 
his  name,  and  the  citation  requires  the  offi- 
cer to  summon  the  defendant,  but  does  not 
specify  on  whom  service  shall  be  had,  and  it 
is  served  on  the  local  agent,  proof  must  be 
made  before  other  proceedings  are  taken 
that  it  was  served  on  such  local  agent.  The 
return  of  the  officer  is  not  conclusive  as  to 
who  is  the  local  agent,  but  that  fact  may  be 
put  in  issue  by  a  sworn  plea.  Galveston,  H. 
&*S.  A.  R.  Co.  V.  Gage,  63  Tex.  568.— Quot- 
ing Mineral  Point  R.  Co.  v.  Keep,  22  III. 
16. 

45.  SnfSciency  of  ofBcer's  return 
of  service. — (1)  General  requirements.  — 
Where  suit  is  brought  in  a  state  court,  but 
removed  to  a  federal  court,  after  such  re- 
moval the  sheriff  cannot  amend  his  return. 
Tallman  v.  Baltimore  S-  O.  R.  Co.,  45  Fed. 
Rep.  156. 

Under  a  statute  providing  that  a  sum- 
mons against  a  corporation  may  be  served 
on  the  "  president,  chairman  of  the  board  of 
trustees,  or  other  chief  officer ;  or  if  its  chief 
officer  is  not  found  in  the  county,  upon  its 
cashier,  treasurer,  secretary,  clerk  or  man- 
aging agent,"  when  the  service  is  not  upon 
the  chief  officer,  the  return  must  show  that 
he  could  not  be  found  in  the  county,  also 
upon  whom  the  summons  was  served,  nam- 
ing the  person  and  his  office.  Cairo  &*  F. 
R.  Co.  V.  Trout,  32  Ark.  17. 

Under  Illinois  Act  of  1853,  in  relation  to 
service  of  process  upon  incorporated  com- 
panies, in  order  that  a  return  upon  an  agent 
may  be  held  good,  the  return  must  show 
that  the  president  of  the  company  did  not 
reside  in,  or  was  absent  from,  the  county. 
St.  Louis,  A.  <^  T.  H.  R.  Co.  v.  Dorsey,  47 
III.  288.— Quoted  in  St.  Louis,  V.  &  T.  H. 
R.  Co.  V.  Dawiiun,  3  111.  App.  118. 

Where  the  return  of  the  officer  states  that 
he  read  the  process,  to  a  station  agent  of 
defendant,  the  president  and  secretary  not 
being  residents  of  the  county,  it  is  defect- 
ive, both  because  it  shows  attempted  ser- 
vice by  reading  instead  of  by  copy,  and  be- 
cause it  docs  not  show  that  the  president 
could  not  be  found  in  the  county,  as  re- 
quired by  III.  Practice  Act  of  July  i,  1873. 
Cairo  &*  V.  R.  Co.  w.  Joiner,  72  ///.  520. 

Mississippi  Act  of  March  4,  1873,  only 
authorizes  service  of  process  against  ex- 
press, railroad,  and  telegraph  companies  to 
be  made  upon  local  agents,  "if  the  presi- 
dent or  other  principal  officers  of  such  cor- 
poration cannot  be  found  m  the  county  in 


PROCESS,  45. 


1101 


lot  state 

(the  ofii- 

does  not 

lid,  and  it 

must  be 

re  taken 

bnt.  The 

|ve  as  to 

may  be 

[esion,  H. 

-QUOT- 

Ip,  22    III. 


' 


which  suit  is  brought."  So  to  authorize 
judgment  by  default  against  an  express 
company  by  service  on  a  local  agent  the 
return  must  show  that  the  president  or 
other  principal  officers  could  not  be  found 
in  the  county.  Southern  Exp.  Co.  v.  Hunt, 
54  Miss.  664. 

Where  process  against  a  corporation  is 
served  by  leaving  a  copy  at  the  business 
ofiice  of  the  corporation  with  the  person 
having  charge  thereof,  to  be  valid,  under 
Wagn.  Mo.  St.  294,  §§  26,  27,  the  return 
must  recite  that  the  chief  officer  is  absent 
from,  or  cannot  be  found  in,  the  county.  It 
is  not  sufficient  merely  to  recite  that  he  was 
absent.  Hoen  v.  Atlantic  &*  P.  K.  Co.,  64 
Mo.  561.— Quoting  Dixon  7/.  Hannibal  & 
St.  J.  R.  Co.,  31  Mo.  409. 

Under  Mo.  Rev.  St.  1879,  §2521,  provid- 
ing that  "  notice  may  be  served  on  railroad 
companies  by  delivering  the  same,  or  a 
copy  thereof,  to  the  nearest  station  or  freight 
agent  of  such  corporation  in  the  county  in 
which  the  cause  of  action  is  pending,"  a 
return  must  show  to  whom  it  was  deliv- 
ered. A  return  simply  describing  the  per* 
son  as  the  "  nearest  agent "  is  not  sufficient. 
//a/ey  v.  Hannibal  &*  St.  J.  K.  Co.,  80  Mo. 
112.— Followed  in  Farmer  v.  Missouri 
Pac.  R.  Co.,  19  Mo.  App.  250.  Reviewed 
IN  Masterson  v.  Missouri  Pac.  R.  Co.,  20 
Mo.  App.  653. 

Under  Mo.  Rev.  St.  §  2865,  jurisdiction  of 
a  railroad  company  can  only  be  acquired  by 
service  upon  its  station  agent  in  the  town- 
ship where  the  justice  resides,  or  if  there 
be  none,  then  upon  the  "  nearest  station 
agent,"  and  the  return  of  the  constable  that 
service  was  had  upon  "  E.  E.  Dunnaway, 
agent  at  Estill  depot  in  Howard  county,"  is 
not  sufficient.  Heath  v.  Missouri,  K.  &*  T. 
H.  Co.,  S3  Mo.  617. 

Where  a  non-resident  corporation  is 
served  with  process,  under  Mo.  Rev.  St. 
§  3489,  which  provides  that  where  the  de- 
fendant is  a  foreign  corporation,  service 
may  be  made  by  delivering  a  copy  of  the 
writ  and  petition  to  any  officer  or  agent 
of  the  corporation  in  charge  of  any  office 
or  place  of  business  of  the  defendant,  the 
return  must  show  that  the  person  upon 
whom  service  is  made  is  an  officer  or  agent 
in  charge  of  an  office  or  place  of  business. 
Kiufekt  v.  Merchants'  Dispatch  Transp. 
Co.,  3  McCrary  {U.  S.)  547. 

Where  a  justice  of  the  peace  issues  a  sum- 
mons against  a  railroad  company,  the  offi- 


cer's return  should  show  how  it  was  served, 
so  that  the  justice  may  be  able  to  determine 
whether  it  was  served  on  the  proper  officer. 
Sherwood  v.  Saratoga  &-  IV.  Ji.  Co.,  15 
Barb.  (N.   Y.)  650. 

Service  in  an  action  before  a  justice 
against  a  domestic  railroad  corporation  upon 
its  president  must  be  in  the  county  in  which 
he  resides,  and  the  return  must  show  that 
fact,  else  it  is  invalid.  A  judgment  basefl 
on  a  service  not  showing  that  fact,  there 
being  no  appearance,  is  void.  Taylor  v. 
Ohio  River  R.  Co.,  35  W.  Va.  328,  13  S.  E. 
Rep.  1009. 

(2)  Hlustrations. — Where  a  return  shows 
upon  its  face  that  the  president  was  not 
served,  and  does  not  show  that  he  was  a 
non-resident,  plaintiff  is  not  entitled  to 
judgment  against  the  corporation  for  fail- 
ing to  answer  the  garnishment.  Steiner  v. 
Central  R.  Co.,  60  Ga.  552. 

A  return  was,  "  Served  the  within-named 
railroad  company,  by  reading  the  same  and 
delivering  a  copy  thereof  to  I.  G.  Ogden, 
Jr.,  cashier  of  said  railroad  company,  this 
24tli  day  of  March,  1875.  The  president  of 
said  company  could  not  be  found  in  my 
county,  this  5th  April,  1875."  Held,  that 
the  last  date  is  evidently  the  date  of  the  re- 
turn of  the  writ,  and  that  the  return  shows 
that,  on  the  24th  of  March,  the  day  the 
writ  was  served,  the  president  could  not  be 
found.  The  service  and  return  were  suffi- 
cient, and  in  strict  conformity  to  the  stat- 
ute. Chicago  &*  P.  R.  Co.  v.  Kcehler,  79 
///.  354. 

A  sheriff's  return  of  service  of  summons 
against  a  railway  was,  "  Sept.  4, 1872,  served 
by  reading  to  and  delivering  a  true  copy  to 
C.  D.,  a  director  of  the  defendant,  the  pres- 
ident of  the  defendant  not  residing  or  being 
found  in  my  county."  //^/<Y,  that  the  return 
was  sufficient  and  gave  the  court  jurisdic- 
tion. Cairo  &•  St.  L.  R.  Co.  v.  Holbrook,  92 
///.  297. 

In  an  action  against  a  company  to  recover 
for  stock  killed,  a  return,  "  Served  by  read- 
ing to  "  A.,  "who  is  the  local  freight  agent 
of  said  defendant,  at  the  city  of,"  etc.,  does 
not  show  good  service  under  Ind.  Code,  § 
30.  Toledo,  W.  &*  IV.  R.  Co.  v.  Owen,  43 
/nd.  405. 

A  return  upon  a  summons  against  a  rail- 
road company  that  it  was  "  served  by  de- 
livering a  copy  thereof,  with  the  indorse- 
ments thereon  duly  certified,  to  Mr.  Fish, 
agent  of  the  within  railrtiad  company,"  is  of 


■i" 


no2 


PROCESS,  46. 


itself  no  sufficient  evidence  of  service,  as  it 
contains  no  description  or  hint  of  the  char- 
acter of  his  agency.  Dickerson  v.  Burling- 
ton <S-  M.  A".  Ji.  Co.,  44  Am.  &•  Ettg.  A'.  Cas. 
465,  43  A'an.  702,  23  Pac.  Rep.  936.— Fol- 
lowing Union  Pac.  R.  Co.  v.  Pillsbury,  29 
Kan.  652. 

Under  How.  Mich.  St.  §  8147,  as  amend- 
ed by  Act  207  of  1885,  authorizing  the  ser- 
vice of  papers  on  the  station  or  ticket  agent 
of  a  railroad  company,  a  return  of  service  on 
\Vm.  H.  Knight,  its  commercial  agent,  does 
not  show  a  sufficient  service.  Detroit  v. 
Wabash,  St.  L.  &>  P.  R.  Co.,  63  Mich.  712, 
30  A^.  IV.  Rep.  321. 

A  return  of  an  officer  that  he  served  a 
summons  on  a  railroad  company  by  hand- 
ing a  copy  to  the  station  agent  at  a  desig- 
nated station  is  sufficient,  and  implies  that 
the  station  agent  was  the  agent  of  the 
defendant.  Talbot  v.  Minneapolis,  St.  P. 
&*  S.  St.  M.  R.  Co.,  82  Mich.  66,  45  A'.  IV. 
Rep.  1 1 13. 

A  constable's  return  of  service  on  a  cor- 
poration is  sufficient  which  recites  that  he  left 
a  copy  "  with  W.  G.  Dilts,  the  bookkeeper 
and  agent  of  the  within-named  defendant 
at  and  in  the  only  office  of  said  company  in 
the  county  of  Iron  ;  said  Dilts  being  in 
charge  of  defendant's  said  office  on  October 
17, 1882,  neither  the  president  nor  other  chief 
officer  of  said  defendant  corporation  being 
found  in  said  county  and  state."  Hill  v.  St. 
Louis  O,  (S-  S.  Co.,  90  Mo.  103,  2  S.  IV.  Rep. 
289. 

A  return  of  service  of  garnishment,  which 
shows  that  the  writ  was  read  to  an  agent  of 
the  railroad  company,  but  which  fails  to 
show  the  delivery  of  a  copy  of  it  to  the 
nearest  station  or  freight  agent,  is  insuffi- 
cient. Master  son  v.  Missouri  Pac.  R.  Co., 
20  Mo.  App.  653.— Reviewing  Haley  v. 
Hannibal  &  St.  J.  R.  Co.,  80  Mo.  112. 

Under  Ohio  Rev.  St.  §  5044,  providing 
that  process  against  a  railroad  company 
may  be  served  upon  "any  regular  ticket  or 
freight  agent,"  a  return  is  not  good  which 
merely  shows  that  it  was  served  on  a  ticket 
agent.  It  must  show  that  he  was  a  "  regu- 
lar" ticket  agent.  Tallman  v.  Baltimore 
6-  O.  R.  Co.,  45  Fed.  Rep.  156. 

A  return  of  a  sheriff  was,  "  Served  the 
within>named  "  railroad  company  "  by  de- 
livering a  true  copy  hereof  to  H.  F.  Heckert, 
the  general  freight  agent  of  said  company, 
personally,  at  the  usual  business  office  of 
said  company,  no  other  chief  officer  being 


present."  Held,  that  the  amendment  to 
Ohio  Code,  §  66,  does  not  repeal  section  68, 
and  that  under  section  68  this  service  is 
sufficient.  Wheeling,  P.  &•  C.  Transp.  Co. 
V.  Baltimore  &*  O.  R.  Co.,  i  Cin.  Super.  Ct. 

311- 

In  an  action  against  a  foreign  corpora- 
tion, a  return  is  sufficient  which  is, "  Served 
by  leaving  a  true  and  attested  copy  of  the 
within  writ  with  an  agent  of  the  defend- 
ants, Dec.  22,  etc.,  and  leaving  a  certified 
copy  in  the  office  attached  to  the  depot, 
Jan.  7,  1850."  kennard  v.  New  Jersey  R. 
«S-  T.  Co.,  I  Phila.  (Pa.)  41.— Reviewing 
Kleckner  v.  Lehigh  County,  6  Whart.  66 ; 
Combs  V.  Bank  of  Ky.,  3  Pa.  L.  J.  58. 

A  return  of  service  on  a  defendant  cor- 
poration by  giving  a  copy  of  the  writ  to  one 
K.,  agent  of  the  company,  is  good.  Aa/- 
bach  V.  New  York,  L.  E.  &»  W.  R.  Ctf.,  15 
Phila.  (Pa.)  168. 

Where  one  person  acts  as  agent  for  two 
diiTerent  corporations,  and  two  separate 
citations  are  issued  against  them,  different 
in  wording,  but  both  directed  to  him  as 
agent,  it  cannot  be  presumed  from  a  return 
of  the  officer  upon  each  citation  that  he  had 
delivered  a  copy  of  "  this  writ  "  that  he  de- 
livered but  one  copy  to  the  agpnt.  Central 
&-  M.  R.  Co.  v.  Morris,  28  Am.  «S-  Eng.  R. 
Cas.  50,  68  Tex.  49,  3  S.  W.  Rep.  457. 

A  sheriff's  return  to  process  against  a 
railroad  company  recited  that  he  executed 
it  on  a  certain  day  by  delivering  to  defend- 
ant in  person,  "  by  and  through  H.  B.  An- 
drews, the  vice-president  thereof,  a  true 
copy."  Held,  that  this  would  indicate  that 
the  vice-president,  not  the  sheriff,  deliv- 
ered the  copy  to  the  company ;  therefore,  it 
was  fatally  defective.  Galveston,  H.  &•  S. 
A.  R.  Co.  V.  Ware,  74  Tex.  47, 11  S.  W.  Rep. 
918. 

The  true  name  of  defendant  as  shown  by 
a  certiorari  and  citation  from  a  justice  of 
the  peace  was  "The  Texas  &  St.  Louis 
Railway  Company."  The  return  of  the  of- 
ficer was  "executed  by  delivering  a  true 
copy  of  the  within  citation  to  E.  C.  Will- 
iams, treasurer  of  the  St.  Louis  &  Texas  R. 
Co."  Held,  that  the  service  was  insufficient 
to  warrant  a  judgment  by  default.  Texas 
&*  St.  L.  R.  Co.  V.  Ballouf,  i  Tix.  App.  {Civ. 
Cas.)  277. 

40.  Coiiclii8iveiie88  of  the  return. 
— The  truth  of  an  officer's  return  of  service 
of  a  summons  cannot  be  questioned  in  the 
action  nor  in  proceedings  by  certiorari  to 


I 


PROCESS,  47,  48. 


1103 


IB. 


review  it.  The  remedy  is  against  the  officer 
for  a  false  return.  Ex  parte  St.  Lout's,  I.  Af. 
&•  S.  Ji.  Co.,  i6  Am.  &»  Etig.  K.  Cas.  547,  40 
Ark.  141. 

The  official  return  of  a  sheriff  upon  legal 
process  cannot  be  contradicted,  as  between 
the  parties  to  the  action,  ns  to  matters  in 
which  the  officer  must  necessarily  certify  to 
facts  from  his  own  personal  knowledge;  but 
it  may  be  contradicted  as  to  matters  in 
which  he  is  dependent  upon  information 
obtained  by  inquiry;  e.g.,  the  fact  as  to 
whether  a  person  was  or  was  not  an  agent 
of  a  corporation  ;  but  such  question  must  be 
raised  by  a  special  plea  to  the  jurisdiction. 
Forrest  v.  Union  Pac,  li.  Co.,  47  Fed.  Rep.  i. 

Where  service  against  a  railroad  is  served 
on  its  agents,  the  officer's  return  is  not  con- 
clusive of  the  question  as  to  whether  they 
are  agents,  but  the  question  can  only  be 
raised  by  plea  in  abatement,  and  not  on  a 
plea  to  the  merits  of  the  action.  Mineral 
Point  R.  Co.  V.  Keep,  22  ///.  9. 

On  a  rule  to  set  aside  such  a  return,  the 
court  will  not  hear  despositions  as  to 
whether  the  person  served  was  really  an 
agent  of  the  defendant.  Kalbach  v.  New 
York,  L.  E.  6-  W.  R.  Co.,  15  Phila.  (Pa.) 
168. 

On  a  motion  to  set  aside  the  service  of  a 
writ,  the  court  will  consider  the  face  of  the 
return  alone,  and  will  not  regard  extraneous 
evidence.  Kennardv.  New  Jersey  R.  &*  T. 
Co.,  I  Phila.  (Pa.)  41. 

47.  Belief  ng^ainst  irregular  ser- 
vice.—Service  upon  a  railroad  company 
having  its  principal  office  out  of  the  state, 
in  an  action  before  a  justice  for  killing 
stock,  had  been  made  ten  days,  and  nothing 
"appeared  showing  the  justice  that  the  case 
was  not  ready  for  judgment,  and  judgment 
was  rendered  upon  such  insufficient  notice. 
Held:  (1)  that  defendant  might  have  the 
judgment  opened,  on  application,  in  ten 
days,  or,it  might  have  it  vacated  in  a  direct 
proceeding  at  any  time  after  ten  days  and 
before  payment,  or  it  might  appeal ;  (2) 
that  the  case  cannot  be  dismissed  on  appeal, 
because  the  insufficient  service  was  not 
ground  of  dismissal,  but  only  of  a  continu- 
ance. Michigan  S.  S"  N.  I.  R.  Co.  v.  Shan- 
non,  13  Ind.  171.— Followed  in  Ohio  & 
M.  R.  Co.  V.  Quier,  16  Ind.  440;  Toledo  & 
W.  R.  Co.  V.  Talbert,  23  Ind.  438. 

An  application  may  be  made  to  set  aside 
the  service  of  a  writ  upon  the  ground  that 
it  was  not  served  upon  the  proper  officer  of 


a  corporation.  It  is  not  necessary  to  await 
the  result  of  a  motion  to  homologate  the 
service  or  of  leave  to  proceed.  Crotty  v. 
Oregon  <&>•  T.  R.  Co.,  3  Man.  182. 

48.  Waiver  of  defective  service  by 
niiiiearance  or  otherwise.—  A  statute 
permitted  service  of  process  against  a  rail- 
road company  to  be  made  upon  any  direc- 
tor. The  officer's  return  recited  that  he 
served  the  process  upon  a  certain  individual, 
who  was  "  reputed  "  to  be  a  director.  The 
record  showed  that  he  was  a  director  some 
time  before.  Held,  that,  in  the  absence  of 
proof  to  the  contrary,  it  will  be  presumed 
that  the  relation  continued  to  the  time  when 
the  summons  was  served.  Washington,  A. 
<S-  G.  R.  Co.  v.  Brown,  17  Wall.  (U.  S.) 
445,  I  Am.  Ry.  Rep.  413. 

In  garnishee  process  against  a  non- 
resident railroad  construction  company,  the 
court  acquired  jurisdiction,  by  proper  ser- 
vice, over  the  property ;  but  the  service  on 
defendant  was  defective.  Defendant  ap- 
peared and  first  denied  the  power  of  the 
court  to  proceed  at  all,  which  being  over- 
ruled, it  joined  issue  and  went  to  trial  on 
the  merits.  Held,  that,  as  the  court  had 
jurisdiction  of  the  subject-matter,  this  was  a 
waiver  of  personal  service.  Fitzgerald  &» 
Af.  Constr.  Co.  v.  Fitzgerald,  137  U  S.  98, 
1 1  Sup.  Ct.  Rep.  36. 

Where  an  action  is  commenced  in  a  state 
court,  and  the  defendant  appears  and  peti- 
tions for  a  removal  to  a  federal  court,  such 
petition  amounts  to  a  general  appearance, 
and  he  cannot  object  after  the  removal  to 
the  service  of  the  summons.  Tallman  v. 
Baltimore  &*  O.  R.  Co.,  45  Fed.  Rep.  1 56.— 
Distinguishing  Hendrickson  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  22  Fed.  Rep.  569;  Kauff- 
man  7/.  Kennedy,  25  Fed.  Rep.  785. 

Where  a  railway  company  is  sued  by  a 
wrong  name,  and  served  with  process,  and 
fails  to  plead  the  misnomer  in  abatement,  it 
is  bound  by  the  judgment.  Bloomfield  R, 
Co.  V.  Burress,  82  Ind.  83. 

Where  the  declaration,  summons,  judg- 
ment by  default  and  execution  were  against 
"  Alabama  &  V.  Railroad  Co.,"  "  The  Ala- 
bama &  V.  Railway  Co.,"  the  real  corpora- 
tion, whose  station  agent  was  served  with 
summons,  having  failed  to  appear  at  the 
return  term  and  object  to  the  misnomer,  is 
bound  by  the  judgment.  Alabama  &*  V.  R. 
Co.  V.  Bolding,  69  Afiss.  255,  13  Su.  Rep.  844. 

A  voluntary  appearance  of  a  railroad 
company,  defendant,  is  equivalent  to  per* 


1104 


PRODUCTION— PROHIBITION,  WRIT  OF,  1. 


sonal  service.  Carpenter  v.  AVzc  York  &* 
N.  H.  K.  Co.,  II  How.  Pr.  (V.   I'.)  481. 

An  objection  that  service  oi  ,1  summons 
against  a  corporation  was  not  made  in  ac- 
cordance with  the  statute  must  be  made 
before  service  of  the  answer.  Ahner  v. 
New  York,  N.  H.  <S-  H.  R.  Co.,  39  N.  Y.  S. 
R.  196,  14  A^.  Y.  Supp.  365.  20  Civ.  Pro. 
318. 

An  appearance  to  object  to  a  construct- 
ive service  does  not  waive  the  right  to 
claim  that  the  suit  should  be  prosecuted  in 
the  proper  court.  St.  Louis,  A.  <S»»  T.  R. 
Co.  V.  Whitley,  77  Tex.  126.  13  S.  W.  Rep. 

853. 

A  writ,  in  form  for  service  in  Manitoba, 
against  a  foreign  corporation  having  no 
agent  in  the  province,  is  not  a  nullity,  and, 
/■/  seems,  the  irregularity  will  be  waived  by 
appearance.  Crotty  v.  Oregon  &*  T.  R.  Co., 
3  Man.  182. 

A  company  having  its  head  office  in  Mon- 
treal does  not  reside  or  carry  on  business 
in  this  province,  within  the  meaning  of 
Ont.  Rev.  St.  c.  47,  §  62 ;  and  service  of 
the  writ  on  the  station  master  of  the  de- 
fendant at  Bowmanville  is  void,  but  defend- 
ant having  appeared  at  the  trial,  and  after 
objection  to  the  jurisdiction  had  been  over- 
ruled, having  proceeded  with  the  defense,  it 
thereby  precluded  itself  from  objecting  to 
the  jurisdiction.  Guy  v.  Grand  Trunk  R. 
Co.,  10  Ont.  Pr.  372.— Quoting  Mackereth 
V.  Glasgow  &  S.  W.  R.  Co.,  L.  R.  8  Ex. 
149. 


PRODUCTION. 

Of  books  and  papers,  see  Discovery,  etc,  7« 
—  tickets,  see  Tickets  and  Fares,  33-39. 


PROFANITY. 

Expulsion  of  passenger  for,  see  Ejection  of 
Passengers,  44 


PROFILES. 

Use  of,  in  condemnation  proceedings,  see 
Eminent  Domain,  332-340. 


PROFITS. 

Damages  for  loss  of,  see  Carriage  op  Mer- 
chandise, 783. 

future,  see  Damages,  49. 

Guaranty  of  payment  of,  see  Guaranty,  S. 

Loss  of,  as  an  element  of  land  damages,  see 
Eminent  Domain,  709. 


Loss  of,  as  damages,  see  Damages,  1  ] . 
the  measure  of  damages,  see  Emi- 
nent Domain,  1238. 
—  —  by  tenant  as  an  element  of  damages, 

see  Streets  and  Highways,  280. 
evidence  of,    on  assessment   of  land 

damages,  see  Eminent  Domain,  G09. 
Measure  of  damages  fui  ioss  of,  see  Eminent 

Domain.  1]S>4. 
Proofof  probable  and  reasonable,  see  Streets 

and  Highways,  2<M>. 
Sufficiency  of  evidence  to  show,  sec  Evidence, 

274. 
Taxation  of  undivided,  see  Taxation,  lOO. 
When  recoverable  as  damages  in  actions  on 

construction  contracts,  see  Construction 

of  Railways,  120. 


PROHIBITION,  WRIT  OF. 

Review  of  condemnation  proceedings  by,  see 

Eminent  Domain,  007. 
When  lies  for  wrongful   interference  with 

property,  see  Eminent  Domain,   1053, 

1054. 

1.  When  the  writ  will  lie.— Prohibi- 
tion will  lie  against  the  railway  commis- 
sioners it  they  act  beyond  their  powers. 
South  Eastern  R.  Co.  v.  Railway  Com'rs, 
L.  R.  6  Q.  B.  D.  586,  50  L.  J.  Q.  B.  D.  201, 
44  L.  T.  203,  45  /.  P.  388 ;  reversing  L.  R. 
5  Q.  B.  D.217,  49  L.  J.  Q.  B.  D.  273.  41  L. 
T.  760,  28  W.  R.  464,  44  /.  P.  362. 

Prohibition  will  lie  to  restrain  proceed- 
ings under  a  judgment  delivered  without 
the  notice  required  by  section  144  of  the 
Division  Courts  Act.  Ont.  Rev.  St.  c.  51. 
Forbes  v.  hlichigan  C.  R.  Co.,  20  0>tt.  App. 
584. 

The  rule  is  well  established  that  where 
the  inferior  court  has  original  jurisdiction 
of  the  cause  the  writ  of  prohibition  will  lie 
only  v/here  such  court,  during  the  proceed- 
ings or  in  the  conduct  of  the  trial,  clearly 
exceeds  its  legitimate  powers  in  some  col- 
lateral matter  arising  in  the  canse  over 
which  it  has  no  authority  ;  but  unless  it  has 
so  exceeded  its  authority,  on  an  application 
for  such  writ  the  court  above  will  not  in- 
quire whether  it  has  decided  correctly  or 
not.  McConiha  v.  Guthrie,  17  Am.  &•  Eng. 
R.  Cas.  I,  21   W.  Va.  134. 

The  inferior  court  having  general  juris- 
diction of  the  subject-matter,  it  has  the 
right  and  authority  to  determine  whether 
or  not  it  has  acquired  jurisdiction  of  the 
particular  case   by  a  sufficient  service  of 


AGES,   IJ. 

lages,  see  Emi- 

jit  of  damages, 

k  280. 

sment   of  land 
Jmain,  OOO. 
|of,  see  Eminent 

Me,  see  Streets 

V,  see  Evidence, 

kxATION,    lOO. 

es  in  actions  on 
le  Construction 


MT  OF. 

ceedings  by,  see 

iterference  with 
30MAIN,    1063, 

1  lie.— Prohibl- 
ailway  comniis- 
I  their  powers. 
'Railway  Com'rs, 
f.  Q.  B.  D.  20I, 

reveriing  L.  R. 
B.  D.  273.  41  L. 
P.  362. 

:strain  proceed- 
livered  without 
tion  144  of  the 

Rev.  St.  c.  SI. 
».,  20  Otit.  App. 

hed  tiiat  where 
nal  jurisdiction 
hibition  will  He  * 
ig  the  procced- 
he  trial,  clearly 
s  in  some  col- 
he  catise  over 
ut  unless  it  has 
an  application 
ve  will  not  in- 
;d  correctly  or 
7  Am.  &s  Eftg. 

general  juris- 
er,  it  has  the 
rmine  whether 
diction  of  the 
int   service  of 


PROHIBITION,   WRIT   OF,  2.— PROSPECTIVE   DAMAGES.  1105 


process  or  notice  upon  the  defendant.  And 
any  error  committed  in  that  regard  will  not 
be  an  excess  or  abuse  of  its  jurisdiction,  but 
an  error  in  adjudicating  a  matter  within  its 
legitimate  authority,  and  the  remedy  for 
such  error  is  by  writ  of  error  or  certiorari 
and  not  by  writ  of  prohibition.  McConiha 
v.  Guthrie,  17  Am.  &*  Eng.  R.  Cas.  i,  21  JV. 

Va.  134. 

2.  Parties.  —  Where  taxpayers  of  a 
county  file  a  petition  for  a  writ  of  prohibi- 
tion to  prevent  a  county  court  from  reduc- 
ing the  valuation  and  taxes  on  railroad 
property  in  the  county,  the  railroad  com- 
pany is  a  necessary  party ;  and  the  petition 
is  demurrable,  unless  it  is  made  a  defendant. 
Armstrong  v.  Taylor  County  Court,  15  IV. 

Va.  190. 

PROMISE. 

By  employer  to  remedy  defects,  effect  of,  see 
Employes,  Injuriks  to,  250-25U. 

Of  vice-principal,  liability  of  company  be- 
cause of,  see  Fei.low-sekvants,  81. 

To  pay  for  stock  subscribed,  see  Subscrip- 
tions TO  Stock,  37-30. 


PROmSSORT  NOTES. 

See  Bills,  Notes,  and  Checks. 


PROMOTERS. 

Effect  of  consolidation  on  rights  of,  see  Con- 
solidation, 31. 

Rights  and  liabilities  of,  see  Incorporation, 
etc.,  O.   , 


PROOF. 

Amendment  of  pleadings  to  conform  to,  see 

Pleading,  150,  151. 
Of  acceptance  of  dedication,   see  Streets 

and  Highways,  lO. 

—  attorney's  authority,  see  Attorneys,  11. 

—  compromise,  see  Compromises,  7. 

—  consolidation  of  roads,  see  Consolidation, 

20. 

—  customs  and  usages,  see  Customs,  4. 

—  dedication  of  streets,  see  Streets   and 

Highways,  U-1  1. 

—  giving  notice  of  election  in  railway  aid 

cases,  see   Municipal  and  Local   Aid, 
IIW. 

—  inability  to  agree  with  landowner  in  con- 

demnation proceedings,  see  Eminent  Do- 
main, 278. 

—  incorporation,  see  Corporations,  20 ;  In- 

corporation, etc.,  12. 

—  law  of  foreign  state,  see  Death  dyWrong- 

FUL  Act,  II 5. 
6  .3.  R.  D— 70 


Of  service  of  process,  see  Process,  44-40. 

—  signature  to  petition  in  aid  of  railway,  see 

Municipal  and  Local  Aid,  80. 

—  taxpayers'  assent  to  railway  aid,  see  Mu> 

NiciPAL  and  Local  Aid,  105. 
Variance  between  indictment  and,  in  prose- 
cutions for  causing  death,  see  Death  by 
Wrongful  Aci,  448. 

See  also  Evidence. 


PROPERTY. 

Assumption  of  risk  to  save,  when  contribu- 
tory negligence,  see  Employes,  Injuries 
to,  334. 

Description  of,  in  mortgage,  see  Mortgages, 
78. 

For  what  trover  lies,  see  Trover,  6. 

Liability  for  loss  of,  by  passenger,  see  Slkep- 
ing,  etc..  Companies,  24-35. 

Power  to  mortgage,  and  what  may  be  mort- 
gaged, see  Mortgages,  l-OO. 

Questions  of  fact  in  actions  for  injuries  to, 
see  Trial,  112. 

Situs  of,  for  taxation,  see  Taxation,  125- 
130. 

What  covered  by  fire  risk,  see  Fire  Insur- 
ance, 5. 

—  is  deemed  to  be  baggage,  see  Baggage, 

20-40. 

exempt  from  taxation,  see  Taxation, 

15S>-184. 

—  may  be  reached  in  attachment,  see  At- 

tachment, etc,  20-30. 

taken  in  condemnation  proceedings, 

see  Eminent  Domain,  01-127. 

—  subject  to  execution,  see  Execution,  1- 

13. 

laborers'  lien,  see  Liens,  47,  48. 

mechanics'  liens,  see  Liens,  22-27. 

—  taxation,   see    Street    Railways, 

283;  Taxation,  75-1«0. 

—  will  pass  on  sale  in  foreclosure,  see  Mort- 

gages, 242. 


PROPERTY  RIGHTS. 

Of  married  women,  see  Husband  and  Wife, 
6-0. 


PROSECUTION. 

Criminal,  for  causing  death,  see  Death  by 

Wron(;kul  Act,  441-451. 
For  wrongful  expulsion  of  passenger,  see 

Ejection  of  Passengers,  73. 


PROSPECTIVE  DAMAGES. 
Generally,  see  Damages,  41-40. 
In  actions  against  carriers  of  passengers,  see 
Carriage  of  Passengers,  014. 


1106 


PROTECTION— PROXIMATE  CAUSE. 


,.p 


llll 


■ 


In  actions  on  construction  contracts,  see  Con- 
struction OF  Railways,  120. 
To  abutters,   see  Stkkets  and    Hiuiiways, 

When  recoverable  in  action  for  causing 
death,  see  Death  uy  Wrongful  Act, 
415-417. 


PROTECTION. 

Of  bona  fide  purchasers  of  stock,  see  Stock, 
74-77. 

—  prior  liens,  see  Mortgages,  87-1  OO. 

—  property  by  sheriff,  liability  of  company 

for,  see  Strikf.s,  7. 

—  purchaser    at    receiver's   sale,    see    Re- 

ceivers, 113. 
What  is  accorded  to  bona  fide  purchasers,  see 
Bonds,  47« 


PROTEST. 
Payment  of  overcharge  under,  see  Charges, 
40. 


PROVISOS. 
In  statutes,  see  Statutes,  51. 


PROVOCATION. 

To  justify  an  assault,  see  Assault,  13i 


PROXIES. 

To  vote  at  stockholders'  meeting,  see  Stock* 
holders,  18. 


PROXIMATE  CAUSE. 

Admissibility  of  showing  evidence  of,  see 
Fires,  208. 

As  to  spread  of  fire,  see  Fires,  81-U8. 

Burden  of  proof  to  show  disobedience  of 
order  was  not,  see  Employes,  Injuries  to, 
508. 

Complaint  must  allege  that  negligence  was, 
see  Fires,  185. 

Contributory  negligence  must  be,  see  Con- 
tributory  Negligenck,  11-17;  Em- 
ployes, Injuries  to,  301-303;  Tres- 
passers, Injuries  to,  03. 

^  —  of  passenger  must  be,  see  Carriage  of 
Passengers,  410. 

— plaintiff  must  have  been,  see  Fires, 

lOO. 

Failure  to  adopt  rules,  when  must  be,  see 
Employ£s,  Injuries  to,  22. 

signal  must  be,  see  Animals,  Injuries 

TO,  104. 

—  —  warn  or  instruct  employe  mutt  be,  see 
Employes,  Injuries  to,  30. 

Incompetency  of  fellow-servant  must  be,  see 
Fellow-servants,  148. 


In  stock-killing  cases,  see  Animals,  Injuries 
to,  34-30. 

Liability  for  killing  stock  as  dependent  on, 
see  Animals,  Injuries  to,  277-279. 

Must  be  act  or  default  of  defendant,  see 
Death  uy  Wrongful  Act,  74. 

Negligence  of  carrier  must  be,  see  Carriage 
OF  Passengers,  128. 

Of  damage,  delay  of  carrier  must  be,  see  Car- 
riage of  Merchandise,  781. 

—  death  by  accident,  see  Accident  Insur- 

ance, 3. 

—  employe's  injuries,  company's  negligence 

must  be,  see  Employes,  Injuries  to,  16- 
17. 

—  fire,  whether  a  question  of  law  or  fact,  see 

Fires,  320. 

—  goods  lost  prior  to  transit,  see  Carriage 

of  Mkrchanuise,  07. 

—  injury  by  collision,  see  Collisions,  8,  9. 
obstruction    or    encroachment   in 

highway,  sec  Streets  and    Highways, 
407. 

—  —  disobedience  of  rule  as,  see  Employes, 

Injuries  to,  420. 

—  —  in  street  or  highway,  see  Streets  and 

Mich  WAYS,  374. 

—  —  negligence  of  fellow-servants  must  be, 

see  Fei.lowsekvants,  48. 

—  —  plaintiff^s  contributory  negligence  must 

be,  see  Death  uy  Wrongful  Act,  179. 

—  —  to  children  at  turntable,  see  Children, 

Injuries  to,  28. 
— parents'  negligence  must  be,  to 

bar  recovery,  see  Children,  Injuries  to, 

117,  133. 
—   employe,    company*s    negligence 

must  be,  see  Collisions,  31. 
passenger  at  station,  see  Carriage 

OF  Passengers,  207. 

—  killing  stock,  failure  to  fence  must  be,  see 

Animals,  Injuries  to,  130,  137. 

—  loss,  act  of  God  must  be,  see  Carriage  of 

Merchandise,  20-22. 

by  fire,  when  carrier's  negligence  it, 

see  Carriace  of  Merchandise,  155. 

Passenger's  contributory  negligence  must  be, 
see  Carriage  of  Passengers,  344. 

Proof  that  company's  negligence  was,  see 
Death  by  Wrongful  Act',  250. 

Requests  to  charge  as  to,  see  Trial,  171. 

Rule  as  to,generally,see  Negligence, 43-50. 

Sufficiency  of  evidence  to  show  that  com- 
pany't  negligence  wat,  see  Animals,  In- 
juries .to,  454;  Lmploy£s,  Injuries  to, 
OlO. 

Undue  speed  at  crossing,  when  deemed  to  be, 
see  Crossings,  Injuries,  etc.,  at,  188. 

Weight  of  evidence  to  show  company's  neg- 
ligence to  be,  see  Fires,  251. 


PROXIMATE   DAMAGES— PUBLIC   LANDS,  1. 


1107 


-s,  Injuries 

lendent  on, 
7-270. 

indant,  see 

t  Carriage 
>e,  see  Car- 

)ENT   INSUR- 

negligence 

lES  TO,   16- 

or  fact,  see 

e  Carriage 

ONs,  8,  O. 
ichment   in 
Highways, 

e  Employes, 

Jtreets  and 

its  must  be, 

igence  must 
Act,  179. 
!e  Children, 

must  be,  to 

Injuries  to, 

negligence 

ee  Carriage 

mutt  be,  see 
137. 

Carriage  of 

sgligence  it, 
se,  IRS. 
snce  must  be, 
,  »44. 
Dce  was,  see 
159. 

RIAL,   171. 
LNCB,43-50« 

tr  that  com* 

Animals,  In. 

,  Injuries  to, 

leemed  to  be. 
:.,  AT.  188. 
mpany't  neg^ 
a. 


When  question  for  Jury,  see  Stations  and 
Depots,  140. 

of  fact,  see  Animals,  Injuries  to,  547  ; 

Trial.  104. 

Whether  company's  negligence  was,  a  ques- 
tion for  the  jury,  see  Employes,  Injuries 
TO.  70«. 

—  contributory  negligence  was,  a  question 
for  jury,  see  Contributory  Neuligence, 
92. 


PROXIMATE  DAMAGES. 

Generally,  see  Damages,  7-9. 

In  actions  against  carrier  of  passengers,  see 

Carriage  of  Passengers.  <(12. 
for  flowing  lands,  see  Flooding  Lands, 

87. 
injuries  caused   by  fire,  see  Fires, 

—  stock-killing  cases,  see  Animals,  Injuries 
to,  581. 


PUBLIC  AGENT. 
Liability  of,  as  garnishee,  see  Attachment, 
etc.,  17. 

See  also  Agency,  117-119. 


PUBLICATION. 

Notice  by,  of  condemnation  proceeding's,  see 
Eminent  Domain,  297,  298. 

Of  company's  rules  for  government  of  em- 
ployes, see  Employes,  Injukiks  to,  425. 

—  libels,  see  Li  del,  etc.,  5. 

—  notice  before  grant  by  city  of  right  to  lay 

tracks  in  streets,  see  Street  Railway^, 
21. 

of  assessment  on  stock,  see  Sudscrip- 

tions  to  Siock,  70. 

—  ordinances,  see  Municipal  Corporations. 

1  1  ;  Streets  and  Highways,  82. 

—  rates    by    commissioners,    see    Railway 

Commissioners,  14. 

—  rules  of  carrier,  see  Carriage  of  Passen- 

gers, 08. 

—  statutes,  see  Statutes,  4. 

Service  of  notice  of  condemnation  proceed- 
ings by,  see  Eminent  Domain,  298. 

process  by,  see  Process,  42. 

What  are  libelous,  see  Libel,  etc.,  1,  2. 


PUBLIC  AUTHORITY. 

Consent  of,  to  construction  of  tunnels,  see 
Tunnels,  2. 


PUBUC  ENEMT. 
Act  of,  when  a  defense  to  express  company, 
see  ExPR.css  Companies,  31. 


Act  of.  when  excuses  carrier  of  passengers, 
sL'c  Cakiuage  ok  Passengers,  177. 

non-delivery  by  carrier,  see  Car- 

KixcE  (IK  Merchandise,  289. 

Carriers  insurers  except  as  to,  see  Carriage 
OF  Merchandise,  12. 

What  is  an  act  of  the,  see  Carriage  of  Mer- 
chandise, 10,  17. 


PUBLIC  EXCITEMENT. 

As  ground  for  change  of  venue,  see  Trial, 
15. 


PUBLIC  OROUNP. 

Obstructions  in,  when  deemed  nuisances,  see 
Nuisance,  lO. 


PUBLIC  IMPROVEMENTS. 

Local  assessments  for,  against  steam  rail- 
ways in  cities,  see  Streets  and  High- 
ways, 341-359. 


PUBLIC  LANDS. 

Land-office  records  as  evidence,  see  Evi- 
1)1  NCE,  229. 

Right  of  homestead  settlers  and  pnt-emp- 
tioners  to  land  damages,  see  Eminent  Do- 
main, 444. 

I.  THE  LAND  DEPABIMENT 1 107 

II.  HOMESTEADS 1108 

III.  INDIAN    LANDS IIIO 

IV.  PRE-EMPTION;  BIGHTS  OF   SET- 

TLERS    II 12 

V.  TIMBER  ON  THE  PUBLIC  LANDS  1 115 

VI.  SURVEYS 1117 

VII    LAND  WARRANTS 1 1 18 

VIII.  MILITARY  RESERVATIONS 1 1 18 

IX.  PATENTS 1118 

X.  RIGHT    OF    WAY    OVER    PUBLIC 

LANDS 1 120 

I.  THE  LAND  DEPARTMENT. 

1.  Aiitliority  of  ofHcers  of— Inter- 
ference by  courts.— Act  of  Congress  of 
March  3,  1887,  by  merely  providing  that 
suits  may  be  brought  against  the  United 
States,  does  not  confer  upon  the  federal 
courts  power  to  control  the  officers  of  the 
land  department  in  the  exercise  of  their 
judgment  in  determining  whether  certain 
lands  are  open  to  settlement,  and  whether 
certain  individuals  have  met  the  require- 
ments of  the  laws  providing  for  the  entry 
of  lands.  Stoux  City  &*  St.  P.  K.  Co.  v. 
United  States,  34  Fed.  Rep.  835. 


P' 


m 


1108 


PUBLIC   LANDS,  2-6. 


m 

'IHn 


HI 


And  the  fact  lliat  injury  may  result  to 
complainant,  a  railroad  company,  which 
claims  the  lands  under  a  grant,  and  also  to 
settlers  upon  the  lands,  and  to  the  region 
in  which  the  lands  are  situated,  by  throwing 
them  open  to  settlement  while  the  title 
thereto  is  in  dispute,  cannot  be  considered 
in  determining  the  question  of  interference 
by  the  courts.  Sioux  City  &»  St.  P.  R.  Co. 
V.  United  States,  34  Fed.  Rep.  835. 

2.  C'oiivliiNiveiiCHS  of  their  deci- 
sioiiH. — The  decision  of  the  secretary  of  the 
interior  in  deciding  that  a  railroad  company 
is  entitled  to  a  right  of  way  over  the  public 
lands,  under  the  Act  of  Congress  of  March 
3,  1875,  cannot  be  revoked  by  his  successor 
in  office,  after  the  company's  title  has  at- 
tached to  the  land.  If  it  be  made  to  appear 
that  the  right  of  way  was  obtained  by  fraud, 
a  bill  might  lie  by  the  United  States  for  the 
cancellation  and  annulment  of  the  approval. 
Noble  V.  Union  River  L.  R.  Co.,  147  U.  S. 
165,  13  Sufi.  Ct.  Rep.  271. 

And  whether  the  company  obtaining  the 
right  of  way  is  such  a  company  as  is  entitled 
to  a  right  of  way  is  a  quasi  judicial  question, 
and  when  the  secretary  of  the  interior  has 
once  determined  the  question,  it  is  final  as 
to  the  executive  department  of  the  govern- 
ment. Noble  V.  Union  River  L.  R.  Co.,  147 
U.  S.  165,  13  Sup.  Ct.  Rep.  271. 

The  decision  of  the  land  department  in 
awarding  certain  lands  to  an  individual, 
which  was  claimed  under  a  railroad  grant, 
is  not  conclusive  on  the  state  courts,  when 
the  decision  grew  out  of  a  mistake  as  to  the 
law.  Emslie  v.  Young,  5  Am,  &*  Eng,  R. 
Cas.  422,  24  Kan.  732. 

n.  E01IE8TEAD8. 

3.  ArkansaH.— A  homesteader  of  gov- 
ernment land  may,  after  making  his  entry 
thereon,  and  settling  there  with  his  family, 
and  before  perfecting  his  title,  unite  with 
another  as  a  partner,  and  build  a  mill  on 
the  land,  giving  to  such  partner  an  interest 
therein  and  in  its  profits  for  his  advances; 
and  no  violation  of  the  homestead  statute 
of  congress  is  thereby  made ;  and  the  two 
may  jointly  sue  a  railroad  company  for  ob- 
structing the  mill-race.  Hot  Springs  R.  Co. 
V.  Tyler,  10  Am.  &•  Eng.  R.  Cas.  145,  36 
Ark.  205. 

4.  Florida*— Where  a  railroad  company 
fails  to  comply  with  the  laws  granting  a 
right  of  way  through  the  public  lands  of  the 
United  States,  the  company  has  no  right  to 


run  its  road  through  the  land  of  a  home- 
steader who  has  complied  with  the  home- 
stead law,  although  he  has  not  at  the  time 
received  his  patent  for  his  homestead  claim. 
Under  such  circumstances  his  claim  is  su- 
perior to  that  of  the  company,  and  he  may 
recover  damages  from  the  company  for 
constructing  its  road  on  his  land.  Savan- 
nah, F.  &*  W.  R.  Co.  V.  Davis,  43  Am.  &* 
Eng.  R,  Cas.  542,  25  Fla.  917,  7  So.  Rep. 
29.— Explaining  Van  Wyck  v.  Knevals, 
106  U.  S.  360. 

A  railroad  company  that  has  not  com- 
plied with  the  terms  of  the  act  of  congress 
granting  to  railroad  companies  rights  of 
way  through  the  public  lands  of  the  United 
States  is  not  in  a  position  to  assail  the  title 
of  a  homesteader  found  in  possession  of  the 
land  through  which  the  company  desires  to 
run  its  road.  Savannah,  F.  Sf  W.  R.  Co. 
V.  Davis,  43  Am.  &*  Eng.  R.  Cas.  542,  25 
Fla.  917,  7  So.  Rep.  29. 

5.  Iowa.  —  Plaintiff  company  claimed 
certain  lands,  as  indemnity,  under  an  act  of 
congress  in  making  a  grant.  Defendant 
claimed  the  lands  by  a  patent  under  the 
homestead  laws,  on  an  application  made 
after  the  grant  to  plaintiff,  he  being  in 
actual  possession  and  having  made  valuable 
improvements.  Held,  that  plaintiff  could 
not,  in  equity,  reach  the  lands,  if  there  was 
enough  of  other  lands  of  the  government 
to  make  up  the  indemnity ;  and  the  burden 
was  upon  plaintiff  to  show  that  there  was 
not  enough  of  other  lands.  Cedar  Rapids 
&*  M.  R.  R.  Co.  V.  Jewell,  12  Am.  6-  Ei^. 
R.  Cm.  277,  61  Iowa  410,  16  N.  W.  Rep. 
344.— Following  Cedar  Rapids  &  M.  R. 
R.  Co.  V.  Herring,  52  Iowa  687. 

0.  Kansas. —  The  initial  or  inceptive 
right  of  a  homestead  settlement,  under  the 
acts  of  congress,  dates  from  the  entry  of  the 
land  at  the  local  land  office ;  that  is,  from 
the  time  of  making  application  to  the  gov- 
ernment through  the  local  land  officers  for 
the  benefit  of  taking  a  homestead  for  actual 
settlement  and  cultivation  ;  therefore  the 
possession  and  settlement  of  public  land, 
prior  to  the  application  and  entry,  give  a 
party  no  vested  right  to  said  land  as  a 
homestead  in  opposition  to  a  railroad  com- 
pany deriving  title  under  the  Act  of  Congress 
of  March  3,  1863,  granting  lands  to  the  state 
of  Kansas  to  aid  in  the  construction  of  rail- 
roads and  telegraphs,  when  the  line  or 
route  of  said  road  is  definitely  fixed  before 
such  entry  as  a  homestead.    Atchison,   T. 


1 


of  a  home- 
li  the  hotiic- 
)t  at  the  time 
lestead  claim. 

claim  is  sti- 

and  he  may 
compatiy  for 
and.  Savim- 
is,  43  Am.  &' 
7,   7  So.  Hep. 

V.  Knevals, 

has  not  com- 
et of  congress 
ies  rights  of 
of  the  United 
assail  the  title 
ssession  of  the 
)any  desires  to 
&»  W.  R.  Co. 
R.  Cas.  542,  25 

ipany  claimed 
inder  an  act  of 
t.  Defendant 
ent  under  the 
lication  made 
,  he  being  in 

1  made  valuable 
plaintiff  could 

ds,  if  there  was 

he  government 

and  the  burden 

that  there  was 

Cedar  Rapids 

2  Ant.  &*  Eng. 
16  N.  JV.  Rep. 
apids  &  M.  R. 
87. 

tl  or  inceptive 
nent,  under  the 
the  entry  of  the 
! ;  that  is,  from 
ion  to  the  gov- 
land  officers  for 
stead  for  actual 
;  therefore  tiie 
of  public  land, 
1  entry,  give  a 
said  land  as  a 
a  railroad  corn- 
Act  of  Congress 
nds  to  the  state 
traction  of  rail- 
n  the  line  or 
ely  fixed  before 
.    Atchison,   T, 


1;! 


PUBLIC   LANDS,  7,8. 


1109 


&•  S.  F.  R.  Co.  v.  Mecklim,  23  Kan.  167.— 
DiSTlNouiSHED  IN  Fcarns  v.  Atchison,  T. 
&  S.  F.  R.  Co.,  33  Kan.  275.  Followed 
IN  Atchison,  T.  &  S.  F.  R.  Co.  v  Keller.  31 
Kan.  439.  Reconciled  in  East  Ala.  R. 
Co.  V.  Tennessee  &  C.  R.  R.  Co.,  29  Am.  & 
Eng.  R.  Cas.  363,  78  Ala.  274. 

The  Act  of  Congress  of  July  3, 1866, relat- 
ing to  plaintiff  company,  provided  for  the  fil- 
ing of  a  map  of  the  general  line  of  its  road, 
and  that  "upon  the  filing;  of  said  map  ♦  ♦  ♦ 
the  lands  along  the  entire  line  thereof,  so  far 
as  the  same  may  be  designated,  shall  be  re- 
served from  sale,  by  order  of  the  secretary 
of  the  interior."  HfU,  that  the  lands  along 
the  line  of  the  road  were  not  withdrawn 
from  sale  until  the  order  of  the  secretary  of 
the  interior  was  made,  so  as  to  cut  off  a 
homestead  entry  made  between  the  time  of 
the  filing  of  such  map  and  the  time  of  such 
order.  Kansas  Pac.  R.  Co.  v.  Dunmeyer,  5 
Am.  &*  Eng.  R.  Cas.  417,  34  Kan.  72^;  for- 
mer appeal  19  Kan.  539. 

Under  the  Act  of  Congress  of  March  3, 
1863,  making  a  grant  of  lands  to  the  state 
of  Kansas  to  aid  in  the  construction  of  rail- 
roads and  telegraphs  therein,  plaintiff  com- 
pany, which  was  a  recipient  of  said  lands, 
did  not  obtain  title  to  specific  lands  until 
the  line  of  its  road  was  definitely  located; 
and  any  lands  within  the  ten-mile  limit 
which  had  been  pre-enipted  or  homesteaded 
prior  to  such  definite  location  were  not  to 
be  considered  as  granted.  Atchison,  T.  &* 
S.  F.  R.  Co.  v.  Pracht,  12  Am.  6-  Eng.  R. 
Cas.  267,  30  Kan.  66,  i  Pac.  Rep.  319. 

A  settler  making  a  homestead  entry  on 
public  lands  of  the  United  States,  and  con- 
tinuing to  reside  thereon,  and  making  im- 
provements according  to  the  requirement 
«f  the  land  laws,  has  the  exclusive  right  to 
his  possession,  though  he  may  never  acquire 
a  legal  title.  Burlington,  K.  &*  S.  IV.  R. 
Co.  V.  Johnson,  33  Am.  <S-  Eng,  R.  Cas.  215, 
38  Kan.  142,  16  Pac.  Rep.  125. 

A  homestead  settler  on  lands  of  the 
United  States  may  sell  and  transfer  a  por- 
tion of  his  homestead  for  a  right  of  way 
for  a  railroad,  or  his  interest  therein  may  be 
condemned  and  appropriated  for  such  pur- 
pose upon  adversary  proccec'ngs,  and  by 
paying  full  con>i)ensati(in  to  the  settler 
therefor.  Burlington,  A'.  &*  S.  W.  R.  Co.  v. 
Johnson,  33  Am.  &*  Eng.  R.  Cas.  215,  38 
A'an.  142,  16  Pac.  Rep.  125. 

A  homesteader  who  lias  entered,  and  is 
proceeding  lawfully  to  perfect  his  title  to 


the  land  entered,  suffers  an  injury  by  the 
building  of  a  railroad  over  his  homestead, 
which  differs  only  in  degree  from  that  sus- 
tained from  the  same  cause  by  one  who 
has  the  complete  title.  Burling/on,  K.  1^ 
.S".  //'.  R.  Co.  V.  Johnson,  33  Am.  <S-  Fng.  R. 
Cas.  215,  38  Kan.  142,  16  Pac.  Rep.  125. 

A  homestead  entry,  made  before  the  defi- 
nite location  of  the  railroad,  but  which  had 
been  voluntarily  abandoned  before  such 
definite  location,  although  the  filing  thereof 
was  not  canceled  until  after  the  location, 
did  not  operate  to  except  the  land  from  the 
grant  to  the  railroad  company,  under  the 
provisions  of  the  Act  of  Congress  of  March 
2,  1863,  donating  to  the  state  of  Kansas 
lands  to  aid  in  the  construction  of  certain 
railroads  and  telegraphs.  Young  v.  Goss, 
40  Am.  <5-  Eng.  R.  Cas.  435,  42  Kan.  502,  22 
Pac.  Rep.  572.— Distinguishing  Kansas 
Pac.  R.  Co.  V.  Dunmeyer,  113  U.  S.  629. 
Quoting  Emsliet/.  Young,  24  Kan.  732. 

7.  Michigan.  —  A  right  of  way  per- 
fccted  by  a  railway  company  under  U.  S. 
Rev.  St.  §  2477  cannot  be  defeated  by  mere 
relation  back  from  a  homesteader's  subse- 
quent patent  to  the  time  of  his  antecedent 
entry  on  the  land.  Flint  &*  P.  M.  R.  Co.  v. 
Gordon,  41  Mich,  420. 

There  is  nothing  in  the  Michigan  Act  of 
June  9,  1879,  for  the  protection  of  bona  fide 
settlers  and  purchasers  from  the  trustee  of 
railroad  lands,  which  dispenses  with  the 
title  from  such  trustee,  which  would  be 
good  if  he  owned  the  land.  Paine  v.  State 
Land  Office  Com'r,  66  Mich.  245,  9  West. 
Rep.  855,  33  A'.  W.  Rep.  491. 

8.  Miiiiicsota.— A  settler  who  has  en- 
tered public  land  of  the  United  States 
under  the  homestead  law,  although  no  pat- 
ent has  been  issued,  has  an  inchoate,  vested 
title  which  can  only  be  defeated  by  his  own 
failure  to  comply  with  the  conditions  of  the 
law.  If  he  complies  with  these  conditions, 
he  becomes  invested  with  full  ownership, 
and  the  absolute  right  to  a  patent.  Under 
the  act  of  May  14,  1880  (21  U.  S.  St.  140), 
his  right  relates  back  to  the  date  of  his 
settlement.  Red  River  &*  L.  of  W.  R.  Co. 
V.  Sture,  32  Minn.  95,  20  A'.  W.  Rep.  229.— 
Distinguishing  St.  Joseph  &  D.  C.  R.  Co. 
V.  Baldwin,  103  U.  S.  426;  Frisbie  v.  Whit- 
ney. 9  Wall.  187  ;  Yosemite  Valley  Case,  15 
Wall.  77.  Not  following  Flint  &  P.  M. 
R.  Co.  V.  Gordon,  41  Mich.  420. — Quoted 
IN  Enoch  V.  Spokane  Falls  &  N.  R.  Co.,  6 
Wash.  393. 


.»'.   .' 


1!  Ai'  ■ 


1110 


PUBLIC   LANDS,  0-13. 


As  ap;ninst  such  homcstcndcr  a  railroad 
company  has  not,  under  the  Act  of  Congress 
of  March  3,  1875,  a  right  of  way  over  the 
land,  unless  such  right  was  acquired  by 
compliance  with  the  provisions  of  the  act 
before  the  date  of  his  settlement.  Keit 
Kiver  6»  /..  of  Jl',  K.  Co.  v.  Sture.yz  Minn. 
95,  20  N.  W.  Rep.  229, 

An  existing  homestead  entry  of  particu- 
lar land  at  the  time  of  the  filing  in  the  gen- 
eral land  otnce  of  a  map  of  the  definite 
location  of  a  land-grant  railroad,  under  the 
act  of  March  3,  1857,  excepts  such  land  from 
the  operation  of  the  railroad  grant,  although 
the  land  is  found  to  be  within  the  limits  of 
the  grant.  Wiitona  &*  St.  P.  Land  Co.  v. 
Kbihhor,  52  Miiut.  312,  54  A'.  W.  Kcp.  91. 

Hut  a  ccrtilkatc  of  such  land  to  the  state 
under  tlic  law  of  July  13,  1866.  as  being  in- 
cluded in  the  grant,  is  effectual  as  a  patent 
evidencing  a  transfer  of  the  title.  It  is 
voidable,  but  not  void,  and  cannot  be  col- 
laterally assailed  by  one  who  has  no  legal 
title  to  the  land.  Winona  &*  S/.  P.  Land 
Co.  V.  Ebilcisor,  52  Minn.  312,  54  A'.  W. 
Rep.  91. 

0.  Oklahoma. — An  employ^  of  a  rail- 
road residing  in  the  territory  before,  up  to, 
and  on  April  22,  1889,  when  the  lands  of 
said  territory  were  opened  for  settlement, 
was  disabled  from  making  a  homestead 
entry  on  the  land  on  which  he  resided. 
Smith  v.  Townsend,  148  U.  S.  490,  13  Sup. 
a.  Rep.  634. 

10.  Oregon. — When  a  homestead  claim- 
ant settles  on  the  public  lands  of  the  United 
States,  and  in  due  time  fdes  his  claim,  as  re- 
quired by  the  act  of  congress,  said  home- 
stead claim  thus  becomes  separated  from 
the  public  domain  and  ceases  to  be  public 
lands  of  the  United  States,  and  thereafter  a 
railroad  company,  by  complying  with  the 
act  of  March  3,  1875,  does  not  acquire  a 
right  of  way  through  such  homestead  claim. 
The  Act  of  Congress  of  March  3,  1S75,  does 
not  purport  to  grant  a  right  of  way  through 
the  claim  of  those  who  had,  prior  to  the  time 
such  right  attached,  acquired  possessory 
rights  in  such  public  lands,  and  by  the  third 
section  of  the  act  such  rights  are  only  to  be 
taken  by  condemnation,  ^l-arsen  v.  Oregon 
R.  &*  N.  Co.,  44  Am.  &^  Ettg.  A'.  Cus.  92,  19 
Oreg.  240,  23  Pac.  Rep.  974.— DISTINGUISH- 
ING United  States  v.  Taylor,  35  Fed.  Rep. 
486 ;  United  States  v.  Stores.  14  Fed.  Rep. 
824;  United  States  v.  Smith,  11  Fed.  Rep. 
487  ;  United  Slates  v.  Cook,  19  Wall.  591. 


III.  IVDIAN  LAITDf 

11.  In  ffoiicral.— Under  Its  authority 
to  regulate  commerce  among  the  several 
states  and  with  the  Indian  tribes,  congress 
has  power  to  grant  to  a  railway  company  a 
right  of  way  through  the  Indian  Territory. 
Cherokee  Nation  v.  Southern  Kan.  R.  Co., 
WAm.  &*Eng.  R.  Cas.  26,  135  U.  S.  641,  10 
Sup.  a.  Rep.  965;  reversing  33  Eed.  Rep. 
900. 

In  the  absence  of  treaty  or  express  exclu- 
sion, the  difTerent  Indian  reservations  be- 
come a  part  of  the  territory  where  situate, 
and  subject  to  territorial  legislative  jurisdic- 
tion, subject,  however,  to  the  power  of  the 
general  government  to  make  regulations  re- 
specting the  Indians,  etc.  Maricopa  County 
Delinquents  v.  Territory,  {Ariz.)  48  Am.  &» 
Eng.  R.  Cas.  620,  26  Pac.  Rep.  310.  — F(JL- 
LOWING  Langford  v.  Monteith,  102  U.  S. 
145.  Quoting  Ft.  Leavenworth  R.  Co.  v. 
Lowe,  114  U.  S.  529. 

12.  ClierokccH.— The  Cherokee  Nation 
holds  the  fee  to  all  the  lands  to  which  it  has 
title.  Individual  citizens  of  the  nation  have 
a  right  of  perpetual  occupancy  in  lands  im- 
proved and  occupied  by  them  under  the 
laws  of  the  Cherokee  Nation.  By  this  right 
of  occupancy  the  individual  Indian  citizen 
can  hold  and  occupy  the  lands  forever,  and 
fully  enjoy  all  profits  arising  from  them,  and 
their  right  of  occupancy  may  be  transferred 
by  a  grant  to  another  citizen  of  the  nation, 
or  it  may  descend  by  inheritance.  Practi- 
cally they  get  all  of  the  productions  of  the 
land,  and  are  entitled  to  its  increased  or  pe- 
culiar value  as  though  they  held  it  in  fee. 
Payfte  v.  Kansas  &•  A.  V.  R.  Co.,  47  Am.  &* 
Eng.  R.  Cas.  228,  46  Fed.  Rep.  546. 

13.  Dclnwnres.  —  In  February,  1867, 
the  Missouri  River  railroiid  company  had 
no  such  interest  in  the  lands  known  as  the 
"  Delaware  Diminished  Reserve  "  as  that  it 
could  convey  the  same  by  deed  ;  and  such 
a  deed  without  consideration,  and  induced 
by  vicious  causes,  cannot  be  set  up  as  an 
equitable  defense  to  a  suit  for  the  recovery 
of  the  lands,  as  such  a  deed  has  no  equity, 
and  will  not  be  enforced.  Simpson  v.  Gree- 
ley, 8  Kan.  586. 

A  citizen  of  the  United  States  emigrated 
from  Kentucky  to  the  territory  of  Kanr^as, 
in  1853,  and  married  a  Delaware  woman,  a 
member  of  the  Delaware  tribe  of  Indians, 
but  was  not  himself  adopted  into  the  tribe. 
In  1854  he  established  his  residence  on  the 


PUBLIC   LANDS,  14,  15. 


ini 


its  authority 
f  the  several 
bcs,  congress 
ly  company  a 
an  Territory. 
Kan.  A*.    Co., 

If.  S.  641,  10 
33  />''.    /»>/. 

xpress  exclu- 
icrvations  be- 
vhere  situate, 
ative  jurisdic- 
power  of  the 
emulations  re- 
ricopa  County 
s.)  48  Am.  «S- 
p.  310.  — FoL- 
th.  102  U.  S. 
Tth  R.  Co.  V. 

erokee  Nation 
r>  which  it  has 
ic  nation  liave 
K  in  lands  im- 
m   under  the 

By  this  right 
[ndian  citizen 
s  forever,  and 
•om  them,  and 
t)e  transferred 
of  the  nation, 
jnce.  Fracti- 
uctions  of  the 
creased  or  pe- 
leld  it  in  fee. 
^o.,  ^T  Am.  &* 

546. 

ibruary,  1867, 
company  had 
known  as  the 
ire  "  as  that  it 
'd ;   and  such 

and  induced 
set  up  as  an 

the  recovery 
as  no  equity, 
ipson  V.  Gree- 

tes  emigrated 
ry  of  Kansas, 
are  woman,  a 
e  of  Indians, 
ruo  the  tribe. 
Jcnce  on  the 


Delaware  reservation  and  has  since  lived 
tlicre.  On  July  15,  1873,  he  brought  an  ac- 
tion ii^ainst  a  railway  company,  charging  it 
witli  breaking  and  entering  his  close.  The 
land  which  he  claimed  had  been  allotted  to 
his  wife  and  cliildrcn  in  severalty,  imdcr  the 
provisions  of  the  Delaware  treaty  of  May  30, 
i860,  and  he  had  no  other  claim  or  title  to 
it.  //e/if,  that  he  was  not  entitled  to  dam- 
ages, notwithstanding  defendant  entered  and 
constructed  its  road  over  the  land  without 
paying  compensation,  Grinlep-  v.  Kunsas 
Pac.  A'.  Co.,  23  A'an.  642.— Foi.i.owKU  in 
Grinterv.  Kansas  Pac.  R.  Co.,  23  Kan.  659. 

In  1862  congress  had  the  exclusive  right 
and  dominion  over  the  Delaware  reservation 
in  Kansas,  and  had  full  power  to  permit  the 
construction  of  a  railroad  over  such  reserva- 
tion either  with  or  without  compensation  to 
be  paid  by  the  company.  Grin/rr  v.  Kan- 
sas Pac.  A'.  Co.,  21  A'an.  642.— Pol.l.owEl)  IN 
Grinter  v.  Kansas  Pac.  R.  Co.,  23  Kan,  659. 

Underthe  Act  of  Congress  of  July  i,  1862, 
making  a  grant  to  aid  in  the  construction 
of  a  railroad  and  telegraph  line  from  the 
Missouri  river  to  the  Pacific  ocean,  there 
was  granted  to  what  is  now  the  Union  Pacific 
railway,  Kansas  division,  a  right  of  way 
through  the  public  lands,  with  an  agreement 
to  extinguish,  as  rapidly  as  possible,  the 
Indian  title  thereto  wiiich  included  the  Dela- 
ware reservation  in  Kansas.  //<•/</,  that  the 
company  had  authority,  in  Nov.,  1863,  under 
the  treaty  of  May  30,  i86o,  to  enter  upon 
the  reservation  for  the  purpose  of  locating 
its  road,  without  compensation  to  the 
Indians.  Grinter  v.  A'ansas  Pac.  li.  Co.,  23 
A'<*«.  642, — Followed  in  Grinter?/.  Kansas 
Pac.  R.  Co..  23  Kan.  659. 

14.  FlatlMMUlH.— By  the  treaty  of  1855 
with  the  Flatbed  Indians  it  was  provided 
that  the  lands  in  tlie  Bitter-root  valley, 
Mont.,  above  ilic  Lo  Lo  Fork,  should  be 
surveyed  and  set  apart  as  a  separate  reser- 
vation for  the  tribe,  if  in  the  judgment  of 
the  president  they  should  be  better  adapted 
to  the  wants  of  the  Indians,  and  in  the 
meantime  they  should  not  be  open  to  settle- 
ment. Such  decision  of  the  president  was 
not  made  until  1871.  Held,  that  they  were 
not  "  public  lands,"  such  as  could  pas*  to 
the  Northern  Pacific  railroad  by  the  grant 
of  July  2,  1864.  Xorthern  Pac.  R.  Co.  v. 
Hinchman,  53  Fed.  Rep.  523. 

By  the  Act  of  Congress  of  June  5,  1872, 
the  above  lands  were  reserved  for  a  special 
purpose,  including  the  right  of  pre-emption 


to  Indians  occupying  and  cultivating  them, 
and  a  sale  of  <nhers  for  the  benefit  of  the 
Indians.  Held,  that  this  was  sufficient  to 
prevent  the  lands  from  passing  to  the  rail- 
road company  under  the  above  grant  of 
1864.  Xorthern  Pac.  R.  Co.  v.  Hinchman, 
S3  Fed.  Rep.  523. 

The  grant  to  the  railroad  company  only 
attached  upon  the  definite  location  of  the 
road,  and  to  such  lands  as  the  United  States 
had  "  full  title,  not  reserved,  sold,  granted, 
or  otherwise  appropriated  ";  therefore  the 
exclusion  of  the  above  lands  from  the  grant 
was  no  violation  of  the  contract  between 
the  general  government  and  the  company. 
Northern  Pac,  R.  Co.  v.  Hinchman,  53  Fed. 

Rep.  523- 

The  provision  of  section  6  of  the  act  of 
1864  making  a  grant  of  the  odd  sections  for 
forty  miles  on  each  side  of  the  road,  and 
requiring  the  president  to  have  the  lands 
surveyed,  after  the  general  route  of  the  road 
should  be  fixed,  and  declaring  that  such 
lands  should  not  be  liable  to  "  sale  or  entry 
or  pre-emption  before  or  after  they  are  sur- 
veyed, except  by  said  company,  as  provided 
by  this  act,"  did  not  prevent  the  govern- 
ment from  making  other  disposition  of  the 
lands,  before  the  filing  of  the  map  of  the 
definite  location  of  the  road.  Xorthern 
Pac.  R.  Co.  V,  Hinchman,  53  Fed.  Rep.  523. 

But  as  the  reservation  under  section  6 
was  only  from  "sale,  or  entry,  or  pre  em p- 
tion,"  this  could  not  prevent  such  a  disposi- 
tion of  the  lands  as  was  made  under  the 
act  of  1S72,  as  the  disposition  then  made 
was  neither  a  sale,  entry,  nor  pre-emption. 
Xorthern  Pac.  R.  Cii.  v.  Hinchman,  53  Fed. 
Rep.  523. 

And  the  fact  that  congress  in  1874  passed 
an  act  which  extended  to  settlers  on  the 
land  the  privileges  of  the  homestead  law 
would  not  restore  such  lands  to  the  public 
mass  so  as  to  take  them  out  of  the  special 
appropriMtion  made  under  the  act  of  1872, 
or  allow  them  to  pass  under  the  grant  to  the 
cotnpany  in  1864.  Northern  Pac.  R.  Co.  v. 
Hinchman,  53  Fed.  Rep.  523. 

15.  Ki«*kii|iooN.— Under  the  Kickapoo 
treaty  of  1862  {13  U.  S.  St.  at  L.  623)  a  rail- 
road company  purchased  from  the  United 
States  all  the  surplus  lands  belonging  to  the 
Kickapoo  Indian  reservation,  and  obtained 
certificates  of  purchase  from  the  secretary  of 
the  interior.  Before  the  company  obtained 
patents  for  said  land  the  president  and  at- 
torney  in  fact  for  the  company,  duly  au- 


1112 


PUBLIC    LANDS,  10,  17. 


I- 


'■\ 


1 


thorized,  did,  by  an  assignment  written  and 
printed  on  the  same  piece  of  paper  on  wliicli 
one  o(  said  certiticatcs  of  purciiase  was 
written  and  printed,  transfer  a:ul  assign  to 
un  ipdividiial  all  the  right,  title,  and  interest 
of  the  company  to  a  certain  quarter  section 
of  iVi\(\  liind.  and  roqtiired  the  issue  of  a 
patent  to  him  as  assignee  of  said  company, 
in  «i.cordance  with  the  terms  of  said  cer- 
tificate. He  afterwards  took  possession  of 
said  land  under  said  certificate,  and  the  as- 
signment, and  made  valuable  improvements 
thereon ;  and  afterwards  the  company 
caused  the  patent  to  be  issued  to  itself,  and 
refused  to  transfer  the  legal  title  to  such 
person.  //M,  that  the  company  might  be 
compelled  to  transfer  the  same  by  deed. 
Central  liranch  U.  P.  R.  Co.  v.  Wilcox,  \^ 
Kan.  259. 

l«t.  OsageM.—Act  of  Congress  of  Jidy 
26,  1866  (14  U.  S.  St.  289),  gave  a  right  of 
way  over  the  Osage  ceded  lands  reserved 
by  the  United  States  for  the  Great  and 
Little  Osage  Indians,  but  such  right  of  way 
extended  over  f.uch  lands  only  as  had  not 
previously  been  disposed  of  by  the  govern- 
ment. A'ofier/s  v.  Jft'ssouri,  A'.  &*  T.  R.  Co., 
43  Am.  Sf  Eitg.  R.  Cas.  532,  43  Kan.  102, 
^2  Pac.Rep.  1006.— Quoting  Leavenworth, 
L.  &  G.  R.  Co.  V.  United  States,  92  U.  S. 

733- 

The  third  section  of  the  act  of  admission 
of  the  state  of  Kansas  into  the  Union  irrev- 
ocably granted  to  the  state,  for  the  use  of 
schools,  the  sixteenth  and  thirty-sixth  sec- 
tions of  'he  public  lands;  and  that  grant 
embraced  those  sections  of  Indian  lands 
within  the  state  in  wliio4i  the  Indians  had  a 
right  of  possession  only.  Roberts  v.  Mis- 
souri, K.  &*  T.  R.  Co.,  43  .'\ni.  &^  luif^.  R. 
Cas.  532,  43  Kan.  102,  22  J'ac.  Rep.  1006. — 
Quoting  Reecher  v,  Wetherby,  95  U.  S. 
517  ;  Cooper?'.  Roberts,  18  How.  (U.  S.)  173. 

IT.  PBE-EMPTION;   BIGHTS  OF  SETTLERS. 

17.   Pre-emption,  g:eiierally.— It  is 

a  fundamental  principle  underlying  the  land 
system  of  this  country  thai  private  entries 
are  never  permitted  until  after  the  lands 
have  been  exposed  to  public  auo  ion.  at  the 
price  for  which  they  are  aft  ,'r\v  irds  sub- 
ject to  entry.  Congress  di',  not  intend 
to  change  this  system  in  the  new  policy 
adopted  by  it  to  aid  states  by  grants  of 
limds  to  biii'il  railroads.  EUired  v.  Se.vton, 
19  IWt/l.  a'.S.)  uSy. 


Lands  having  been  set  apart  to  aid  a  rail- 
road, and  absolutely  anci  unconditionally 
withdrawn  from  pre-emption,  no  pre-emp- 
tion right  could  be  acquired  in  them  while  so 
situated,  even  if  the  grantee  at  the  time  was  . 
unauthorized  under  the  state  law  to  take  a 
perfect  title.  Southern  Pac.  R.  Co.  v.  Orton, 
eSawy.  (U.  S.)  157. 

A  person  who  enters  upon  the  land  of  the 
United  States  without  any  purpose  of  ob- 
taining title  in  accordance  with  the  federal 
laws  has  .no  lawful  right  there,  and  is  a 
trespasser  as  against  the  government.  So 
the  mere  fact  that  land  is  in  the  possession 
of  a  settler  at  the  time  that  it  is  granted  to 
a  railroad  company  does  not  prevent  it  from 
passing  under  the  grant.  Ca/ialan  v.  A/c- 
Tittiue,  46  Feii.  Rep.  251. 

Alternate  sections  granted  to  the  state  by 
Act  of  Congress  of  Sept.  20,  1850,  for  the 
construction  of  a  railroad  from  Chicago  to 
Mobile  are  not  subject  to  preemption. 
VWilker  V.  Htdrick,  18  ///.  570. 

In  1870  a  r.iilroad  pre-emption  claim  to 
land  could  not  be  acknowledged  before  a 
notary,  especially  one  residing  in  a  diflferent 
county.     Cravens  V,  Moore,  61  Mo.  178. 

Absence  from  land  f>>r  eight  years  will  not 
be  cotistrui'd  as  necessarily  amounting  to 
an  abandonment  of  a  railroiid  pre-emption 
claim  thereto.  Cravens  v,  Moore.  61  Mo. 
178. 

The  even-numbered  sections  along  the 
line  of  the  Union  Pacific  railroad  and  its 
branches  may  be  settled  upon  and  entered 
under  the  provisions  of  the  |)re-emption  and 
homesteail  laws,  but  are  not  subject  to  pri- 
vate entry.    Stalnaker  v.  Morrison,  6  Neb, 

363- 

When  lands  have  been  offered  at  public 
sale  and  thereby  become  sufejcct  to  private 
entry,  if  they  are  afterwards  included  within 
the  boundaries  of  a  grant  ro  a  railroad  com- 
pany, and  are  thereby  withdrawn  from  pri- 
vate entry,  and  subject  to  settlement  and 
entry  under  the  pre-emption  and  homestead 
laws  e.v_.u8ively,  they  are  to  be  treated  in 
all  respects  likeunotTered  lands.  Stalnaker 
v.  Morrison,  6  Neb.  363. 

A  party  pre-empting  any  portion  of  such 
lands  has  thirty  months  after  the  date  of 
filing  his  declaratory  statement  in  which  to 
make  final  proo'  and  pay  for  the  same. 
Stalnaker  •:.  Morrison,  6  Neb.  363. 

L»nds  within  a  railroad  grant  are  not 
sul)jert  to  private  entry,  and  in  regard  to 
settl-'inent  and  entry  under  the  homestead 


aid  a  rail- 
iditiunally 

precmp- 
li  while  so 

time  was . 
to  talce  a 
\>.  V.  OrtoH, 

and  of  the 
ase  of  ob- 
iie  federal 
and  is  a 
incnt.  So 
possession 
granted  to 
ent  it  from 
Um  V.  Afc- 

lie  state  by 
50,  for  the 
Chicago  to 
reempiion. 

n  claim  to 
!d  before  a 
1  a  different 
lo.  178. 

ars  will  not 
lounting  to 
)re-empiion 
)re,   61   Afo, 

along  the 
uad  and  its 
ind  entered 
'niption  and 
(ject  to  pri- 
•son,  6  Neb. 

d  at  public 
t  to  private 
iided  within 
i  I  road  com- 
n  from  pri- 
lemcnt  and 
homestead 
(  treated  in 
Sta/iiaker 

ion  of  such 

the  date  of 

in  which  to 

the  same. 

'3- 

lit  are   not 

1  regard  to 

homestead 


PUBLIC   LANDS,  18,  19. 


1113 


t 


and  pre-emption  laws  are  to  be  regarded  as 
unot!ered  lands.     Stark  v.  Baldwin,  7  Neb. 

1 8.  Nature  niid  extent  of  the  right 
ncqiiired.— A  claimant  of  public  land, 
within  the  meaning  of  the  Act  of  Con- 
gress of  July  2.  1864,  §3(13  St,  at  L.  356), 
granting  a  riglit  of  way  over  the  public 
lan<ls  to  the  Union  and  Central  Pacific  rail- 
road companies,  is  one  who  has  an  interest 
in  the  land  recognized  by  the  laws  of  the 
United  States.  One  who  is  a  pre-emptioner, 
but  has  not  paid  for  the  land,  is  not  such 
claimant.  Western  Pac.  A*.  Co.  v.  Tevis,  41 
Cal  489,  3  Am.  Ry.  Rep.  50. 

Defendant  entered  upon  land  within  the 
exterior  limits  of  a  Mexican  grant,  with  the 
intention  of  securing  a  pre-emption  right, 
but  subsequently  abandoned  his  location, 
under  the  mistaken  supposition  that  such 
land  was  sub  judice,  and  located  elsewhere. 
Four  years  afterwards,  and  eighteen  months 
subsequently  to  the  filing  of  complainant's 
map,  ho  returned  to  his  original  location. 
Held,  that  such  return  did  not  connect  itself 
witli  his  former  residence,  and  continue  or 
reinstate  the  right  first  initiated,  and  that 
tiie  right  of  ccmiplainant  having  attached, 
it  was  too  late  to  acquire  a  new  right  of  pre- 
emption ;  and  a  piitcnt  issued  to  him.  based 
upon  such  subsequent  location,  was  eiti<»:<' 
void,  or  the  title  vested  under  it  is  belt!  •', 
trust  for  complainant,  and  the  patentee  could 
convey  no  belter  title  to  a  purchaser  for 
value  without  actual  notice,  in  fact,  of  com- 
plainant's title.  Southern  Pac.  R.  Co.  v. 
Dull,  10  Sawy.iU.  S.)  506,  22  P'ed.  Rep.  489. 

A  person  who,  on  Dec.  7,  1853,  settled 
upon  vacant  land  did  not  thereby  acquire 
any  pre-emption  rights  under  the  act  of  Feb. 
7,  1853,  suppiemontary  to  "  An  act  granting 
to  settlers  on  public  domain  pre-emption 
privileges."  The  privilege  accorded  liy  the 
ill :t  was  limited  to  such  persons  as  were 
settlers  on  the  public  land  at  the  date  of  its 
enactment ;  and  such  person  took  no  title 
as  against  a  patentee  who  had  made  a  loca- 
tion subsequent  to  March  1,  1857,  when  the 
Mississipi>i  A  Pacific  railroad  reservation 
was  open  to  location.  Woods  v.  Durretl,  28 
Tex.  429. 

Th.  proviso  to  the  act  of  August  15,  1856. 
ji  3  (Piisclial's  Dig.  art.  4351,  note  985),  ex- 
cluding from  the  relief  granted  by  that  act 
such  persons  as  had,  subsequent  to  Decern 
ber  21,  1853.  settled  as  prc-einptors  within 
the  Pacific  railroad  reservation,  is  not  to  be 


construed  as  relieving  from  disabilities  all 
persons  who  had,  previous  to  that  date, 
settled  as  pre-emptors  within  the  reserva- 
tion. The  proviso  conferred  no  rights  upon 
any  settlers  not  comprised  within  the  class 
comprehended  by  the  enacting  clauses  of 
the  act.      Woods  v.  Vurrett,  28  Tex.  429. 

The  act  of  Aug.  26,  1856  (Paschal's  Dig. 
art.  4348),  repealed  the  pre-emption  law  of 
Feb.  13,  1854,  and  on  the  same  day  the  act 
"  to  authorize  the  locati.>n  and  settlement 
of  the  Mississippi  and  Pacific  railroad  re- 
serve "  was  passed,  by  section  2  of  which 
persons  settled  upon  any  portion  of  said 
reserve  at  the  date  of  saicj  law  were  author- 
ized to  purchase  not  more  than  160  acres 
at  the  price  of  fifty  cents  per  acre.  This 
act,  with  direct  reference  to  the  subject- 
matter,  sustains  the  construction  already 
given  to  the  act  of  Aug.  15,  1S56.  Woods 
V.  Durrett,  28  Tex.  429. 

The  rights  of  a  pre-emption  claimant  to 
public  land  of  the  United  States  are  reserved 
by  the  Act  of  Congress  of  March  3.  1875, 
entitled  "  An  act  granting  to  railroads  a 
right  of  way  through  the  public  lands  of 
the  United  States;"  and  where  a  railroad 
appropriates  public  lands  upon  which  a  pre- 
emption entry  has  been  properly  made  prior 
to  the  filing  of  a  profile  of  the  road  in  the 
office  of  the  secretary  of  the  interior  the 
railroad  is  liable  for  damages.  Enoch  v. 
Spokane  Falls  &*  N.  R.  Co.,  6  Wash.  393, 
33  Pac.  Rep.  966.— QfoTING  Red  River  & 
L.  of  VV.  R.  Co.  7>.  Sture,  32  Minn,  95. 
— FoLi.oWKD  IN  Reidt  7>.  Spokane  Falls 
&  N.  R.  Co..  6  Wash.  623. 

10.  Ui|;htH  of  HottlerH,  generally.* 
— (1)  Federal  decisions.' —  Under  the  treaty 
relating  to  "  the  ceded,  neutral  lands  in 
Kansas,"  an  actual  settler  whose  im()rove- 
mcnts  were  wholly  upon  the  west  half  of  i 
quarter  section  of  land  is  not  entitled  to 
buy  the  quarter  section  on  which  the  im- 
provements are.  Under  article  17  of  the 
treaty,  any  actual  settler  who  liatl  made  im- 
provements of  the  value  of  850,  and  occupied 
the  land  for  agricultural  purposes  at  the 
date  of  the   treaty,  might  buy  at  the  ap- 


*  Preference  as  between  actual  seitlers  anil  ap« 
plicaTits  who  purchase  or  apply  ><>r  lands  ul  a 
ti'ilroail  company  in  response  lo  circulars  sent 
out  soljcitin);  purchasers  add  applications,  see 
24  .Am.  &  Knc;.  R.  Cas.  135.  ,il<str. 

Rights  of  settlers  oti  lands  K^anted  to  railroad 
(ompany  Etiect  of  withdrawal  of  lands  front 
entry,  sec  4b  Am   &  Ksu.  R.  Cas.  .145,  abttr. 


1114 


PUBLIC   LANDS,  10. 


lifif 


lii 


kh 


\w 


praised  value  "  the  smallest  quantity  of  land 
in  legal  subdivision  which  would  include 
his  improvements."  Armsworthy  v.  Mis- 
souri River,  It.  S.  &*  O.  A'.  Co.,  5  Di//.  ( [/. 
5.)  491.  —  Following  Stroud  v.  Missouri 
River.  Ft.  S.  &  G.  R.  Co..  4  Dill.  396. 

The  various  acts  of  congress  and  of  the 
state  of  Minnesota  relating  to  the  grants 
made  to  plaintiff  company,  and  the  rij^htsof 
settlers,  construed,  and  /w/ti,  tiiat  as  they 
were  all  passed  after  the  time  given  for  the 
completion  of  the  road,  when  there  had 
been  a  non-performance  of  the  conditions 
of  the  grant,  and  when  there  evisted  the 
right  of  absolute  forfeiture,  ana  of  resump- 
tion and  transfer  by  the  state  to  another 
beneficiary,  it  was  intended  both  by  congress 
and  the  state  to  give  actual  fiona ^dg  seltlera 
priority  over  the  railroad  company.  St. 
Paul,  M.  &^  M.  A'.  Co.  v.  Grcenhalgh.  26 
Fed.  Rep.  563.— Following  St.  Paul  &  S. 
C.  R.  Co.  V.  Winona  &  St.  P.  R.  Co.,  112  U. 
S.  720.  5  Sup.  Ct.  Rep.  334;  Winona  &  St. 
P.  R.  Co.?'.  Barney,  113  U.  S.  618,  s  Sup. 
Ct.  Rep.  606. 

Act  of  Congress  of  Feb.  25,  1885,  pr  - 
vides  that  all  inclosures  of  public  lands 
entered  by  any  person  or  corporation  with- 
out claim  or  color  of  title  to  said  lauds 
acquired  in  good  faith  shall  be  unlawt'ul. 
Defendant,  as  licensee  of  the  Southern 
Piicific  railroad  company,  had  inclosed 
certain  lands  of  the  land  grant  of  the  com- 
pany. The  lands  had,  on  filing  the  plat  of 
the  proposed  road  by  the  company,  been 
withdrawn  from  settlement  by  the  United 
Slates,  though  they  had  not  been  earned  yet 
by  the  company.  //(■/</,  that  such  inclosures 
of  land  did  not  fallVithin  those  prohibited 
by  the  act  of  congress.  United  States  v. 
liransteen,  13  Sawy.  (  U.  .*>.)  64,  32  Fed.  Rep. 
738.— Al'PRoviN(.  United  States?/.  Childcrs, 
8  Sawy.  171  ;  United  States  v.  Ordway,  30 
Fed.  Rep,  j6. 

(2)  Stale  decisiom.-  K  settler  nn  public 
laiids  winch  had  b««!n  withdrawn  from  sale 
under  an  act  of  congress  to  aid  the  con- 
struction of  a  railroad  acquires  no  rights  by 
his  settlement  as  against  the  railroad  com- 
pany, to  wliich  a  |)atent  was  subsequently 
issued.  Southern  I'ac.  R.  Co.  v.  Garcia.  64 
Ca/.  515.  2  Pac.  A'.-/.  397. 

Hy  Act  of  Congress  of  June  3,  1856.  certain 
lands  were  granted  to  the  state  of  Louisiana 
to  aid  in  the  construction  of  railroads. 
//<?/</,  that  no  conveyance  to  a  railroad  com- 
pany m  violation  o[  the  terms  of   this  act 


could  vest  title  to  the  lands  in  the  company. 
It  was  a  condition  precedent  to  the  convey- 
ance of  any  section  of  the  land  that  the  road 
should  be  first  constructed  in  sections  of 
twenty  miles  each  before  the  company  could 
acquire  title  to  the  lands  contiguous  to  such 
section.  Vicksbur>;^,  S.  &*  P.  R.  Co.  v. 
Sledj^e,  41  La.  Ann.  896,  6  So.  Rep.  725. 

But  where  the  legislature  authorizes  the 
road  to  mortgage  the  lands  above  mentioned, 
and  the  mortgage  is  "executed  to  secure  the 
company's  bonds,  the  state  cannot  subse- 
quently abridge  the  rights  of  third  parties 
acquired  under  the  mortgage.  Parties  who 
have  acquired  title  to  the  road  by  a  fore- 
closure sale  have  the  legal  title  to  such 
lands  as  against  a  party  who  claims  no  title, 
except  by  mere  possession,  and  who  went 
on  the  lands  expecting  that  they  would  be 
thrown  open  to  sale  and  entry.  Under  such 
circumstances  the  state  is  estopped,  and  the 
genera!  government  is  the  only  party  who 
can  contest  the  title  to  such  lands.  Vicks- 
burg.  S.  &^  P.  R.  Co.  v.  Sledge,  41  Lti.  Ann. 
896,  6  So.  Rep.  725. 

(3)  Canadian  decisions. — A  company  con- 
structed its  road  over  certain  government 
lands  Ijeid  by  lier  majesty's  officers  for  ord- 
nance purposes.  Altcrwards  a  question  was 
raised  as  to  the  right  of  the  company  to 
construct  its  road  ov»  r  the  lands,  but  by 
negotiations  it  was  agried  that  the  road  was 
rightfully  constructed,  and  all  that  the  ord- 
nance department  could  require  was  com- 
pensation for  the  land.  Subsequently  all 
these  lands  were  ceded  by  the  im|)erial  gov- 
ernment to  the  government  of  Canada,  It 
was  ascertained  that  the  g  )vernment  ha.i  a 
lien  on  the  road  for  ^600,000,  which,  by  act 
of  the  legislature,  was  compromised  anrt 
discharged  by  payment  of  ^100,000,  Jield, 
that  the  company  and  its  lessee  had  acquired 
the  absolute  title  to  the  land,  and  ini-^lit 
enjoin  another  company  from  constructing 
a  ro;id  thereon.  Grand  Trunk  R.  Co.  v 
Credit  V alley  R.  Co..  27  Grant  s  Ch.  (U.  C.) 

Plaintiffs  who  hold  timber  licenses  for 
certain  years  over  piihlic  lands  sued  in  tres- 
pass for  timber  cut  by  defendant  on  the  line 
and  within  the  six-rod  belts  mentionerl  in 
the  Railway  Act  of  Canada  concerning  rail- 
way riijhts  of  way.  Held  (per  Hagarty, 
C.J.O  .  anil  Osier,  j  A.),  that  the  damage  to 
the  timber  w  ts  damage  "  sustained  by  rea- 
son of  the  railway,"  withm  the  meaning  ol 
K.  S.  C.  109,  ;^  27,  and  that  that  seclion  was 


lit 


PUBLIC   LANDS,  20,  21. 


1115 


e  company^ 
the  convey- 
at  the  load 
sections  of 
I  puny  could 
ous  to  &uch 
A\    Co.    V. 

'A  725. 
horizcs  the 
mentioned, 

secure  the 
nnot  subse- 
[lird  parties 
Parties  who 

by  a  fore- 
le  to  such 
ms  no  title, 
i  who  went 
:y  would  be 
Under  such 
3cd,  and  tlie 
y  party  who 
ids.  Vicks- 
41  Ltt.  Ann. 

)mpany  con- 
government 
cers  for  ord- 
questi'>n  was 
company  to 
mds,  but  by 
the  road  was 
hat  the  ord- 
re  was  cotn- 
equently  all 
m|)erial  gov- 
Canada.  It 
inicnt  hau  a 
I'hich,  by  act 
omised  and 
1,000.  JieU, 
lad  acquired 
,  and  mif^ht 
constructing 
*  A'.    Co.    V 

f  ai.(U.  c.) 

licenses  for 
jued  ill  iros- 
t  on  tlif  line 
icntioned  in 
cerninfj;  rail- 
ler  Hagarty, 
c  dama^jf;  to 
ined  by  rea- 
incaning  o( 
setiion  was 


r'lttfti  vires  the  Dominion  parliament.  .I/c- 
Arthur  v.  Northern  &*  P.  J.  A'.  Co.,  17  Ont. 
App,  86;  dismissing  appeal  from  15  Out.  733. 
—Quoting  Roberts  v.  Great  Western  K. 
Co.,  13  U.  C.  y.  B.  615;  Browne  v.  Brock- 
ville  &  O.  R.  Co.,  20  U.  C.  Q.  B.  202 .  Snure 
V.  Great  Western  R.  Co.,  13  U.  C.  y.  B.  376. 
Rkvikwinu  Boot h by  z/.  Morton.  3  Brod.  & 
B.  239,  Oakley  v.  Kensington  Canal  Co.,  5 
B.  tS:  Ad.  138. 

Held  (per  Burton,  J. A.,  and  Maclennan. 
J. A.),  that  the  section  was  ultra  vires  the 
Dommion  parliament  as  bein(>  an  unneces- 
sary inteiference  with  property  and  civil 
rights  within  the  province,  but  that  even  if 
valid  It  would  not  avail  for  the  protection  of 
defendants,  as  tliey  were  mere  trespassers, 
Mc Arthur  v.  Xorthern  &*  P.  J.  K.  Co.,  17 
Ont.  App.  86 ;  disinissini^  appeal  from  1 5  Out. 
713.  — Kkvikwini;  Kelly  v.  Ottawa  St.  R. 
Co.,  3  Ont.  App.  616;  Garton  v.  Great 
Western  R.  Co..  El.  Bl.  &  El.  837  ;  Follis  v. 
Port  Hope  &  L.  R.  Co..  9  U.  C.  C.  P.  50. 

The  Canada  Central  railway  acquired 
under  its  charter  (19  &  20  Vict.  c.  112,  anr* 
subsequent  acts  relating  thereto  passed 
I»rior  to  confederation)  the  rij,:ht,  which  was 
preserved  by  the  B.  N.  A.  Act,  ^  109,  to  en- 
ter on  the  crown  lands  in  tlie  province  of 
Ontario  on  the  line  of  the  railway  included 
in  a  subsequent  timber  license  ^ranted  to 
plaintiff,  and  to  cut  the  tinibei  within  six 
rods  of  each  side  thereof,  without  any  re- 
striction as  to  obtaining  the  consent  of  the 
lieutenant-governor  in  council.  Booth  v. 
Mclntyrr.  31    U.  C.  C.  P.  183. 

By  19  it  20  Vict.  c.  113,  S  4,  the  clauses, 
amon^'st  otlu-rs,  of  the  Railways  Clauses 
Consolidation  Act  (14  &  15  V'Ct.  c.  51), 
relating  to  lands  were  incorpoiated  there- 
with, whereby  the  company  was  empowered 
to  enter  upon  the  crown  laiifis  on  the  lino 
o!  Its  railway  and  to  frli  and  remove  the 
trees  standing  thereon.  iJy  16  Vict.  c.  169, 
§  8,  possession  of  such  lands  was  not  to  be 
taken  without  the  consent  of  the  governor 
m  council,  but  it  was  expressly  provifled 
that  this  was  not  to  limit  or  alTeci  the 
powers  given  by  the  special  act.  Held,  that 
the  last-named  proviso  showed  that  saiii 
section  8  wau  nor  to  aj)[)ly  to  this  coin- 
jiany.  Booth  v.  Mclntyre,  31  U.  C.  C.  P. 
183. 

20.  MettlorH  inakliiK  iiiiprow- 
nuMits.— In  v.'ew  of  the  policy  ol  the  gen- 
eral goverrjment  and  of  the  state  in  regard 
to  the  public  landy,  settlers  who  have  no 


rights,  except  from  occupancy,  cannot  be 
ireaietl  as  naked  wronf;-doers,  having  no 
equitable  rights  in  their  improvements,  as 
against  persons  claiming  a  simple  priviU-gc, 
such  as  the  right  to  take  the  land  for  rail- 
road purposes.     California  Northern  A'.  Co. 

V.    Gould,    -I    Cal.  254.  — DiSTINdUISHKI)    IN 

Dorau  v.  Central  Pac.  R.  Co.,  24  Cal.  245. 

Where  a  person,  eligible  to  procure  a 
homestead  under  the  United  .States  hiws, 
settles  upon,  occupies,  and  makes  valiiahlc 
and  lasting  improvements  on  govermnent 
land,  and  attempts  to  make  a  homest(;Md 
entry  thereof,  but  through  mistake  makes 
an  entry  of  another  piece  of  land,  he  has 
obtainerl  such  an  interest  in  the  land  that 
he  may  have  his  entry  so  corrected  as  to 
make  it  an  entry  of  the  land  which  he  had 
intended  to  enter.  I'eorns  v.  Atchison,  T. 
&•  S.  F.  A'.  Co.,  T,i  Kan.  275,  6  Pac.  Kep. 
237.— DiSTiNGUisHiNC.  .Atcliison.  T.  &  S.  F. 
R.  Co.  V.  Mecklim,  23  Kan.  167. 

And  in  such  a  case,  where  a  railroad  com- 
pany which  would  be  entitled  to  the  land 
upon  definitely  locating  its  railroad,  pro- 
vided the  same  were  still  government  land 
and  not  afTecled  by  any  homestead  or  |)re- 
emption  claim,  definitely  h^cates  its  road 
opposite  the  land  after  tiie  attempted  entry 
thereof,  but  before  the  entry  is  corrected,  it 
obtains  no  interest  in  the  land.  Fearns  v. 
Atchison,  T.  &•  S.  F.  A'.  Co.,  33  Kan.  275,  6 
Pac.  i^ep.  237. 

Where  a  person  who  has  settled  upon  and 
attempted  to  mak^  a  homestead  entry  oi  a 
piece  of  government  land  is  in  the  c>[)cn, 
lUJtorious.  and  exclusive  possession  thereof, 
claiming  the  same  as  his  homestead,  such 
possession  is  sufficient  to  pr.t  all  persons 
upon  inquiry,  and  all  persons  are  bound  to 
take  notice  of  his  rights  and  interests  in 
and  to  the  property.  Fearns  v.  Atchison, 
T.  6-  .S".  /'.  A'.  Co.,  33  Kan.  275,  6  Pa:.  Rep. 
237. 

V.  TIMBER  ON  THE  PUBLIC  LAITDB. 

21.  Title  to— Ciit(tiiKtiiiil>«>r,  k«>u- 
crally. — By  the  Act  of  Congress  of  July  i, 
1 8^)2,  etuitled  '•  An  act  to  aid  in  the  construc- 
tion of  a  railroad,"  the  timber  };rowing  on 
the  odd-nunr;..re(l  soclionsof  public  mineral 
land  ot  the  Uiiiti-d  States  was  granted  to 
llio  Central  Pacific  railroad  company  of  Cali- 
fornia ;  and  under  the  term  timber  is  in- 
c1ii'I(m1  all  trees  and  wood.  Held,  accord- 
ingly, tiiat  a  subsequent  patentee  of  such 


1116 


PUBLIC   LANDS,  22,  23. 


^sIV; 


lands  took  no  title  to  the  timber.  Carr  v. 
Central  Pac.  A\  Co.,  55  Ca/.  192. 

The  United  States  cannot  maintain  an  ac- 
tion for  an  accounting  against  the  Northern 
Pacific  railroad  company  (or  cutting  tim- 
ber on  unsurveyed  land,  every  alternate  sec- 
tion of  which  had  been  conveyed  to  the 
latter,  :>s  they  were  not  tenants  in  con  mon 
therein  and  under  the  circumstances  it  was 
impossible  to  tell  upon  whose  land  the 
timber  had  been  cut.  United  States  v. 
Northern  Pac.  Ji.  Co.,  6  Mont.  351,  12  Pac. 
.^iep.  769. 

The  United  States  and  the  Northern  Pa- 
cific railroad  company  are  not  tenants  in 
common  of  unsurveyed  lands,  every  alter- 
nate section  of  which  had  been  conveyer  to 
Ihe  latter  by  an  act  of  congress.  United 
States  V.  Northern  Pac.  A\  Co.,  6  Mont.  351, 
12  Pac.  Rep.  769.— Reviewing  Northern 
Pac.  R.  Co.  V.  Majors,  5  Mont.  145. 

22.  Purchase  uf  wood  cut.— Defend- 
ant, a  railroad  corporation  purchased  for 
use   upon    its   locomotives  and   cars  wood 

''severed  from  public  mineral  lands.  Held, 
that  such  purchase  and  use  were  unlawful, 
and  that  the  United  States  could  recover 
from  defendant  the  value  of  the  wood. 
United  States  v.  Eureka  (S-  P.  R.  Co.,  14 
Sawy.  (U.  5.)  334,  40  Fed.  Rep.  419. 

23.  Tukiiii;  timber  adjacent  to 
riiflit  ofway.— The  provision  in  the  Act 
of  Congress  of  1864  that  the  Nortiiern  Pa- 
cific railroad  company  should  have  the  right 
"  to  take  from  the  public  lands  adjacent  to 
the  line  of  said  road,  material  of  earth, 
stone,  timber,  etc.,  for  construction  thereof," 
is  not  limited  to  public  lands  which  are 
contiguous  to  or  adjoining  the  track. 
United  States  v.  Lynde,  47  Fed.  Rep.  297. — 
Quoting  United  States  v.  Northern  Pac. 
R.  Co.,  29  Alb.  L.  J.  24;  United  States  7/. 
Denver  &  R.  G.  R.  Co.,  31  Fed.  Rep.  886. 
Reviewing  Denver  &  R.  G.  R.  Co.  v. 
United  States,  34  Fed.  Rep.  838. 

The  Act  of  Congress  of  March  3,  1875, 
grants  the  right  of  way  to  certain  railway 
companies  over  the  public  lands,  and  au- 
thorizes any  of  sucii  companies  "to take" 
the  material  necessary  for  tlic  construction 
of  its  road  from  the  publiclands  "  adjacent" 
to  the  line  thereof.  Held,  that  the  act  is  a 
license  to  the  company  "  to  take  "  tiie  ma- 
terial necessary  for  the  construction  of  its 
road  without  application  to  or  consent  of 
of    the    land    department  ;    a 


iy 


)tricer 


make  any  regulations  on  the  subject  of  such 
license.  United  States  v.  Chaplin,  12  Sawy. 
(U.  S.)  604,  31  Fed.  Rep.  S90. 

If  the  company  takes  such  material  from 
the  public  lands  not  adjacent  to  the  line  of 
its  road  or  takes  more  than  is  permitted 
by  the  statute,  it  is  liable  to  the  United 
States  as  a  wrong-doer.  United  States  v. 
Chaplin,  12  Saivy.  (U.  S.)  604,  31  Fed.  Rep. 
890. 

Any  person  who  has  a  contract  with  a 
company  to  \puild  its  road  or  any  part  there- 
of, or  to  furnish  material  therefor,  is,  with* 
out  any  special  agreement  to  that  efTect. 
authorized  to  lake  the  necessary  material 
from  the  public  land  the  same  as  the  com- 
pany might  do.  United  States  v.  Chaplin, 
i2  SaJty.  (U.  S.)  604,  31  Fed.  Rep.  890. 

If  a  person  not  in  the  employment  of  the 
company  and  having  no  contiact  therewith, 
cuts  timber  on  the  lands  adjacent  to  the 
line  of  Its  road,  and  the  company  acquires 
the  same  for  the  purpose  of  its  road  and  so 
uses  it,  neither  such  person  ■  or  the  com^iany 
is  liable  therefor  as  a  wrong-cioer.  United 
States  V.  Chaplin,  12  Saivy.  {U.  S.)  604,  31 
Fed.  Rep.  890. 

The  license  to  take  material  for  the  con- 
struction of  the  road  includes  the  right  to 
take  material  for  the  construction  of  sta- 
tion buildings,  depots,  machine  shops,  side 
tracks,  turnouts  and  water  stations,  and  the. 
like.  United  States  v.  Chaplin,  12  Sawy. 
(U.S.)  604,31  Fed.  Rep.  890.  Denver  &* 
R.  G.  R.  Co.  V.  United  States,  36  Am.  &* 
Eng.  R.  Cas.  429,  34  Fed.  Rep.  838 ;  affirmed 
in  150  t/.  6'.  I,  1 6,  14  Sup.  Ct.  Rep.  11,  16. 

Land  is  "  adjacent  "  to  the  line  of  the 
road  within  the  purpose  and  intent  of  the 
act,  when  by  reason  of  its  proximity  there- 
to, it  is  directly  and  materially  benefited  by 
the  construction  thereof.  United  States  v. 
Chaplin,  12  Sawy.  (U.  S.)  604,  31  Fed.  Rep. 
890. 

Under  the  Act  of  Congress  of  March  3, 
1L75,  entitled  "  An  act  granting  railroads 
the  right  of  way  through  the  public  lands 
of  the  United  States,"  and  allowing  the 
taking  of  timber  or  other  material  from 
adjacent  lands  necessary  for  the  construc- 
tion of  the  road,  a  company  is  authorized 
to  use  timber  or  material  so  taken  at  a  place 
remote  from  the  place  from  which  it  is 
taken.  United  States  v.  Denver  &^  R.  G.  R. 
Co.,  150  U.  S.  I.  14  Sup.  Ct.  Rep.  1 1  ;  affirni' 


t  ;    and      /'//v  30  Am.  tS-»  /;"«<,'.  R.  t'<is.  42<;,  34  Fid.  Rep. 


that  such  department  lias  no  autiurity  to      838,   which   niodij'ud 


/■',d.   Ri-p.  886.— 


ft  of  such 
1 2  Satvy. 

^rial  from 
le  line  of 
:>erniitled 

|e  United 
Stales  V. 

U'eii.  Rep. 

let  with  a 
art  there- 
is,  with- 
at  effect, 
material 
the  com- 
Chaplin, 
890. 
ent  of  the 
therewith, 
nt   to  the 
y  acquires 
ad  and  so 
i  coni;(any 
Uttiled 
S.)  604,  31 

r  the  con- 
le  right  to 
on  of  sta- 
shops.  side 
IS,  and  th.-. 
13  iiauy. 
Denver  &* 
16  Am.  &> 
'•;  affirnttc* 
>.  II,  16. 
nc  of  the 
ent  of  the 
lity  there- 
ncfitcd  by 
'  Slates  V. 
Fed.  Rep. 

March  3, 
railroads 
Mic  lands 
wiiig  the 
rial  from 
construc- 
ithorized 
at  a  place 
ich  it  is 
■  R.  G.  R. 
''  i  affirm- 
F,d.  Rep. 
>.   886.— 


PUBLIC    LANDS,  24-27. 


1117 


Followed  in  United  States  v.  Denver  &  R. 
G.  R.  Co..  150  U.  S.  16.— United  States  v. 
Lynde,  47  Fed.  Rep.  297. 

The  Denver  &  Rio  Grande  railroad  com- 
pany was  entitled  to  claim  the  benefit  of 
the  Act  of  Congress  of  March  3,  1875,  after 
the  expiration  of  the  time  limited  by  the 
act  of  June  8,  1872,  for  the  completion  of 
its  road  as  far  as  Santa  Fe.  United  .Stales 
V.  Denver  &*  R.  G.  R.  Co.,  150  U.  S.  i.  14 
Sup.  CI.  Rtp.  1 1  ;  affirming  36  .-////.  &-  Em^. 
R.  Cas.  429,  34  Fed.  Rep.  838,  'whic/t  modi- 
fied-^x  Fed.  Rep.  886.— Followed  i.v  United 
States  V.  Denver  &  R.  G.  R.  Co.,  150  U.  S. 
16 

24.  Timlicr-ciiltiiro  cluinis.— Where 
a  railroad  company  by  condemnation  pro- 
ceedings procures  a  right  of  way  over  land 
occupied  by  a  person  who  holds  the  same  as 
a  timber-culture  claim  under  the  laws  of  the 
United  States,  the  title  thereto  being  still  in 
the  United  States,  the  occupant  of  the  land 
can  recover  damages  from  the  railroad  com- 
pany only  for  the  diminished  value  of  his 
interest  in  the  land,  and  not  for  the  dmiin- 
ished  value  of  the  land  itself.  Chicax^o, 
K.  <S-  W.  R.  Co.  v.  Hurst,  39  Am.  &*  F.nf;. 
R.  Cas.  127,  41  A'i«.  740,  21   "^ac.  Rep.  781. 

One  who  enters  land  under  the  "  Timber- 
Culture  Act,"  and  who  has  complied  with 
its  conditions,  is,  diirinr  he  time  require*! 
to  perfect  his  right  to  a  i»atent,  the  owner 
of  hay  made  from  grass  which  he  cuts  011 
the  land, and  he  may  recover  fiom  a  wrong- 
doer who  destroys  trees  standing  on  the 
land  their  value  as  standing  trees;  that  is, 
the  value  they  add  to  the  value  of  the  land. 
earner  v.  Chicago,  St.  P.,  A/.  &*  O.  R.  Co., 
43  Minn.  375,  45  .V.  W.  Rep.  713.— Distin- 
guishing Lindsay  v.  Winona  &  St.  P.  R. 
Co.,  29  Minn.  411,  13  N.  W.  Rep.  191. 

The  fact  that  after  the  destruction  of  trees 
upon  a  timber  claim  by  a  railroad  company 
the  claimant  surrendered  his  claim  does  not 
affect  his  right  to  recover  damages  for  their 
destruction.  Carner  v.  Chicago,  Si.  P.,  M. 
&*0   R.  Co.,  43  Minn.  375.  45  .V.  IV.  Rep. 

7I3. 

fii  person  having  been  in  fwssession  of  a 
timber-culture  claim  for  less  than  ten  years, 
whose  possession  is  not  injured  or  disturbed, 
cannot  maintain  an  action  for  damagts  to 
the  land  itself  caused  by  the  construction  of 
a  railroad  on  a  public  road  which  passes 
along  one  side  of  such  claim.  I/astings  d^ 
G.  I.  R.  Co.  V.  Ingalls,  20  Am.  &>  Eng.  R. 
Cm.  60,  i^Nei.  123,  16  A'.  IV.  Rep.  762.— 


Ai'i'i.ii  I)  IN  .Atcliison  &  N.  R.  Co.  v.  Boer- 

iier,  34  Ncl).  240. 

VI.  BUBTETS. 

25.  ValhlUy.-On  Aug.  26, 1856,  a  stat- 
ute was  passed  aiiil-.c>rizing  the  location,  sale, 
and  settlement  ot  the  Mississippi  &  Pacific 
railroad  reservation,  //c/d,  that  a  survey 
made  in  185J  within  the  reserve,  and  while 
it  was  subsistinj,',  was  contrary  Jo  law  and 
void,  and  did  not  sever  the  land  from  the 
mass  of  the  public  tlomain.  Wright  v. 
Hawkins.  28  Tex.  452. 

20.  Finality— Wlu'ii  Iiuh  effect  of 
I»>'teiit. — Under  the  Act  of  Congress  of 
June  14,  i860,  proceedings  for  the  confirma- 
tion of  a  Mexican  grant  are  in  the  nature 
of  proceedings  in  re>»  ;  under  such  act  the 
location  of  a  Mexican  grant  becomes  final, 
after  tlie  publication  by  the  surveyor-gen- 
eral of  the  notice  i)rovided  for  therein,  in 
the  absence  of  any  application  to  have  the 
plat  and  survey  returned  to  the  district 
court  for  examination.  A  siirvev  so  made 
final  by  publication  has  the  same  effect  as  a 
patent,  and  thereafter  is  in  no  sense  siid 
J II dice ;  the  jurisdiction  of  the  commis- 
sioner of  the  general  land  office  is  there- 
I'pon  exhausted  as  to  everything  but  the 
ministerial  duty  of  issuing  a  patent,  and  any 
further  acts  of  his,  such  as  ordering  a  re- 
survey,  are  void.  All  lands  outside  of  the 
survey,  thus  made  final,  become  public 
lands  of  the  United  States,  and  subject  to 
any  other  disposition  under  the  law.  South- 
ern Pac.  R.  Co.  v.  Did/,  10  Sany.  (U.  S.) 
506,  22  F,d.  A>^.  489. 

27.  I'rlority— .Junior  luid  senior 
8iirvey«. — In  1876  a  railway  company  had 
a  block  of  surveys  made  by  the  surveyor  of 
a  land  district.  The  block  extended  into 
Kinney  county,  then  organized.  The  field 
notes  with  certificates  were  returned  to  the 
land  office.  In  1877  defendant  located  upon 
the  land  in  Kinney  county  A  survey  was 
made  and  patent  issued  October,  1878.  The 
patent  w.is  issued  in  1887,  upon  the  survey 
for  the  railway  company.  In  a  contest  be- 
tween the  two  titles— //^/f/,  that  the  junior 
survey  made  in  Kinney  county  with  patent 
conveyed  the  land,  unaffected  bythesurvey 
in  the  land  district;  and  this  althoui;h  the 
line  between  Kinney  county  and  the  land 
district  had  not  been  established.  It  did 
not  appear  that  the  siirvi'v  for  the  railway 
company  was  made  by  mistake,     Gu//,  W. 


1118 


PUBLIC   LANDS,  28-33. 


T 


I 

i    1 


T.  &^  P.  J!.  Co.  V.  Cornell,  84  Tex.  541,  19 
S.  IV.  Rep.  703. 

VII.  lAKD  WASSAKT8. 

128.   Priority  nniong:  holders.— As 

between  the  holders  of  general  or  com- 
mon land  warrants,  there  is  no  priority  of 
right  to  locate.  The  warrant  is  a  mere 
authority  to  the  surveyor  or  proper  officer 
to  make  ihc  survey,  and  the  certificate  is 
the  inception  of  title,  to  which  the  patent, 
when  issued,  relates.  The  title  remains  in 
the  state  until  the  warrant  is  located,  and 
will  pass  under  a  junior  warrant,  if  first 
executed.  Hut  it  is  not  so  with  an  act  of  in- 
corporation, which  when  accepted  amounts 
to  a  grant,  and  the  right  conferred,  a  vested 
franchise,  existing  independent  of  any  act  of 
location  or  survey,  which  the  state  cannot 
reassert,  nor  grant  to  any  other.  It  is  a 
prior  right  to  which  all  subsequent  grants 
must  yield.  Chesapeake  &>  O.  Canal  Co.  v. 
Baltimore  &*  O  K.  Co.,  4  Gill&-/.  {Mil.)  i. 

A  chartered  company  may  lose  its  prior 
right  by  acquiescing  in  other  works,  incon- 
sistent with  such  rights.  Chesapeake  «S~«  O, 
Canal  Co.  v.  Baltimore  6-  O.  R.  Co.,  4  Gill  <S- 
/.  (M,l.)  I. 

2U.  Ucplacitiff  lost  warrant.  -  A 
party,  by  his  authorized  agent,  presented  a 
land  warrant  at  the  office  of  the  register 
and  received  a  register's  certificate  of  loca- 
tion, and  in  the  presence  of  the  agent  the 
proper  entry  was  made  upon  the  plat  book. 
The  warrant  failed  to  reach  the  general 
land  office,  and  the  land  was  subsequently 
included  in  a  railway  land  grant.  The  de- 
partment of  the  interior,  reversing  the  de- 
cision of  the  general  land  office,  directed 
that  the  lost  warrant  be  replaced  with  a  du- 
plicate by  one  claiming  title  under  the 
or.ginal  entry.  Jlehi,  that  the  party  making 
the  entry  acquired  an  equitable  interest  in 
the  land  which  upon  compliance  with  the 
Cf>ndition  imposed  by  the  department  ri- 
pened into  the  legal  title  thereto.  Harmon 
v.  Clayton.  51  Iowa  36. 

3I\  Military  luiid  warrants.— A  lo- 
cation of  a  military  land  warrant  on  public 
Ian  J  made  before  the  passage  of  the  Act  of 
Co.mresb  of  July  i,  1862,  granting  to  the 
Central  Pacific  railroad  company  alternate 
odd  sections  on  each  side  of  the  road,  gave 
the  locator  or  his  grantee  such  an  interest 
in  the  land  as,  coupled  with  possession,  en- 
ables him  to  maintain  trespass  against  tlie 


company  for  injury  done  to  the  same  in 
constructing  the  road  over  the  land.  But- 
terfield  v.  Central  Vac.  K.  Co.,  31  Cal.  264. 

Vin.  MILITAKT  BESEBVATIoks. 

31.  At  Harper's  Ferry.— Under  the 
act  of  March  3,  1819,  authorizing  the  sccre« 
tary  of  war  to  sell  "  such  military  sites  be- 
longing to  the  United  States  as  may  have 
been  found  or  become  useless  for  military 
purposes,"  and  the  act  of  April  28,  1828, 
authorizing  the  president  to  "sell  forts, 
arsenals,  dockyards,  lighthouses,  or  any 
property  held  by  the  United  States  for  like 
purposes,"  the  secretary  of  war  has  authority 
to  execute  the  agreeiuent  it  made  with  the 
Baltimore  &  Ohio  railroad  company  on 
Nov.  s,  1838,  conceding  to  the  company 
"  authority  to  construct  its  railroad  along 
and  over  their  property  "  at  Harper's  Ferry. 
United  States  v.  Baltimore  &*  O.  A'.  Co.,  i 
Hughes  {U.  S.)  138. 

32.  At  lloek  iNlaiid. — The  reserve  on 
Rock  Island,  though  surveyed,  never  having 
been  offered  for  sale  at  public  auction,  does 
not  come  technically  within  the  act  of  1852, 
authorizing  railroad  companies  to  locate 
thei  oads  through  the  lands  of  the  United 
Stales.  The  act  of  1819  authorizing  the 
sale  <>1  military  reserves,  etc.,  which  had  be- 
come useless  embraced  only  those  lands 
which  had  been  reserved  and  become  use- 
less at  the  time  the  above  act  was  passed. 
The  power  given  to  the  defendant  to  con- 
struct the  road  and  build  a  bridge  across 
the  Mississippi  is  not  controverted.  Uniteii 
States  v.  h'ailroad  Bridge  Co.,  6  McLean 
{I/,  i.)  5'7. 

IX.  PATEXT8. 

33.  'Wliat  passes  by— Boundaries. 

—  A  patent  issued  by  the  United  States  for 
land,  whether  conclusive  or  not,  is  at  least 
prima  facie  valid,  and  is  presumptive  evi- 
dence that  all  preliminary  conditions  have 
been  fulfilled.  So  held,  where  a  railroad 
company  was  sued  in  ejectment  for  land, 
and  exhibited  in  defense  a  patent  for  the 
land,  in  pursuance  of  a  h  MiiHative  grant. 
Southern  Pac.  A.  Co.  v.  Purcell,  77  Cal.  69, 
18  Pac.  Rep.  886. 

A  railroad  company  obtained  title  to  a 
fractional  section  o(  hmd  which  bordered 
for  the  most  part  upon  a  bav,  but  there  ex- 
tended beyond  the  line  a  ledge  or  narrow 
strip.    An  individual  claimed  the  ledge  aa 


same  in 
d.    But- 

Cal.  264. 


N8. 


:ll 


PUBLIC    LANDS,  34-36. 


1119 


assignee,  but  it  appeared  thnt  at  the  time 
tlie  railroad  obtained  title  his  assignor  had 
no  right  thereto,  except  the  privilege  of 
burning  a  coal  pit,  and  was  afterwards  em- 
ployed by  the  railroad  company  to  live  on 
it  and  hold  possession  for  the  company. 
Jfeiil,  that  the  ledge  was  included  as  part  of 
the  fractional  section,  as  shown  by  the  gov- 
irnmeiit  survey,  and  was  conveyed  by  the 
government  patent ;  and  that  the  company 
had  the  title  thereto.  Ex  parte  Davidson, 
57  Feil.  Kep.  883. 

But  even  if  it  be  admitted  that  the  title 
to  such  land  did  not  pass  by  the  govern- 
ment patent,  it  remained  in  the  United 
States,  and  the  company  obtained  the  right 
to  it  when  it  obtained  possession  and  lo- 
cated its  tracli  thereon,  and  secured  the  ap- 
proval of  the  secretary  of  the  interior,  under 
the  Act  of  Congress  of  March  3,  1875,  grant- 
ing railroads  a  right  of  way  over  the  public 
lands.  Ex  parte  Davidson,  57  Fed.  Rep. 
883. 

The  appropriation  of  the  above  land  for 
railroad  purposes  took  it  out  of  the  body  of 
the  public  domain  ;  therefore,  an  objection 
that  the  land  is  not  surveyed,  and  that  the 
company  cannot  perfect  its  title  by  filing  a 
map  within  twelve  months  after  the  survey, 
as  required  by  the  above  act,  section  4,  is 
unavailing,  as  the  land  cannot  be  appro- 
priated for  other  purposes.  Ex  parte  Da- 
vidson, 57  Fed.  Rep,  883. 

Patents  by  the  general  government  of 
public  lands  bordering  on  streams  are  not 
limited  by  the  meander  lines.  Such  patents 
of  publi>"  lands  bordering  on  streams  navi- 
gable in  fact,  issued  under  the  acts  of  con- 
gress providing  for  the  survey  and  sale  of 
the  public  lands,  do  not  take  to  the  middle 
line  of  the  stream,  but  stop  at  the  stream. 
.SV.  Paul,  S.  <S-  T.  F.  R.  Co.  v.  First  Div. 
St.  P.  &•  P.  R.  Co..  26  Minn.  31,  i  A'. 
W.  Rep.  580.— Following  Schurmeier  v. 
St.  Paul  &  P  R.  Co.,  10  Minn.  59;  St.  Paul 
&  P.  R.  Co.  V.  Schurmeir,  7  Wall.  (U.  S.)  272. 

Under  the  act  to  incorporate  the  Pacific 
railroad,  sections  14,  19,  the  lands  embraced 
in  the  reservation  granted  were  during  its 
continuance  reserved  from  individual  ap- 
propriation, and  locations  within  its  limits 
were  void,  and  patents  "tood  upoii  no  higher 
ground.  Sherwood  v.  Fleming,  25  Tex. 
[Sup/>.]  408. 

34.  Exception  of  mineral  lands.— 
A  patent  to  a  railroad  company  which  ex- 
cepts "all  mineral  Isr.ds,  should   any  be 


found  to  exist  in  the  tracts  described,"  does 
not  convey  lands  which  nre  mineral,  Mc- 
Laughlin V.  Powell,  50  Cal.  64. 

A  patent  issued  by  the  United  States  to 
the  Central  Pacific  railroad  company,  for 
land  included  within  the  boundaries  of  the 
grant  made  to  it  by  the  Act  of  Congress  of 
July  I,  1862, and  the  amendatory  act  of  July 
2,  1864,  is  not  conclusive  evidence  that  the 
land  covered  by  the  patent  is  non-mineral 
in  character;  and  a  person  claiming  the 
land  under  a  sub.sequent  mining  patent,  in 
an  action  by  him  to  quiet  his  title  against  a 
grantee  of  the  railroad  company,  may  show 
that  the  land  is  mineral,  and  therefore  ex- 
cepted from  the  operation  of  the  grant  to  the 
company,  and  upon  such  showing  is  entitled 
to  have  his  title  quieted.  Chicago  Quartz 
Min.  Co.  V.  Oliver,  75  Cal.  194,  16  Pac.  Rep. 
780. 

35.  of  lands  covered  by  Mexi- 
can KrantH.— A  patent  issued  to  a  railroad 
company,  under  the  act  of  July  2,  1864,  for 
land  within  the  limits  of  a  Mexican  grant 
sub  judice  at  the  date  of  the  withdrawal  of 
the  lands  is  void,  and  may  be  attacked  col- 
laterally. Carr  v.  Quigley,  57  Cal,  394.— 
Following  Doll  v.  Meador,  16  Cal.  295.— 
Followed  in  Foss  v.  Hinkell.  78  Cal.  158  ; 
Carr  7/.  Quigley,  79  Cal.  130,  21  Pac.  kep. 
doT.—Foss  v.  Hinkell,  78  Cal.  158,  20  Pac. 
Rep.  393.— Following  Carr  v.  Quigley.  57 
Cal.  395  ;  McLaughlin  v.  Held.  63  Cal.  210. 

.'JO.  Confirnmtion— Priority.—  Tex. 
Act  of  January  10.  i860,  confirming  certain 
patents  in  the  Mississippi  &  P.  railroad  res- 
ervation, validates  such  patents  as  between 
the  patentees  and  government,  where  two  of 
them  were  in  conflict,  and  enables  either 
pa  tv  to  withdraw  his  location,  but  does  not 
give  precedent  .  to  their  claims  from  the 
legally  acquired  rights  of  others.  Sherwood 
V.  Fleming,  25  TV.r.  \Supp.\  408. 

A  county  court  issued  a  certificate  in 
185s  to  a  colonist  of  what  is  known  as 
"  Peters'  Colony,"  and  the  same  wa^  located 
and  the  land  surveyed  within  the  reserve  of 
the  lands  made  to  the  Mississippi  &  Pacific 
railroad  company,  and  a  patent  issued  the 
following  year.  Plaintiff  claimed  under  a 
location  and  survey  made  in  1871.  In  i860 
an  act  was  passed  to  confirm  certain  patents 
and  to  validate  surveys  made  within  the 
railroad  reservation.  Held:  (i)  that  objec- 
tions to  the  validity  of  the  patent  were  ob- 
viated by  the  act  of  i860;  (2)  that  the  act  of 
Feb.  4,  1858,  entitled  "  An  act  to  ascertain 


I 


1120 


PURLIC   LANDS,  37-40. 


11 


what  land  certificates  have  been  issued  by 
the  county  courts  of  counties  in  Peters' 
Colony,"  did  not  aflect  the  case,  as  the  cer- 
tificate had  already  merged  into  a  patent. 
Hnidrkks\.  Wilson,  53  Tex.  463, 

:t7.  Caiicvllutioii  or  vucntioii  in 
equity.— A  bill  in  equity  will  lie,  at  the 
suit  of  the  United  States,  to  cancel  patents 
issued  to  a  railroad  company,  by  mistake, 
for  lands  not  included  in  a  grant,  where  the 
patents  would  prejudice  the  interests  of  the 
United  States,  or  interfere  with  their  issuing 
|)atcnt3  to  others.  United  States  v.  Mis- 
souri,  K.  &*  T.  J\\  Co.,  51  Am.  &•  En^.  A'. 
Cas.  305,  141  I/.  5.358,  13  Sufi.  Ct.  A'ep.  13. 

The  owners  of  the  land  at  the  time  of 
filing  a  bill  in  equity  to  vacate  a  patent  of 
the  United  States  are  indispensable  parties; 
and  when  the  bill  is  against  the  patentee 
alone,  after  he  has  conveyed  the  land  and 
ceased  to  have  any  interest  in  it,  it  will  be 
dismissed  for  want  of  necessary  parties. 
United  States  v.  Central  Pac.  R.  Co..  8  Sawy. 
(U.S.)  St,  II  Fed.  Rep.  449. 

Z.  BIOHT  OF  WAT  OTBB  PUBLIC  LANDS. 

38.  Coiistriictloii  of  statutory 
grants,  generally.— Grants  of  rights  of 
way  to  railroads  by  congress  cannot  be  con- 
strued to  include  routes  not  contemplated 
by  the  charters  of  the  companies  at  the  time 
of  the  grant.  Jackson  v.  Dines,  13  Colo.  90, 
21  Pac.  Rep.  918.— Quoting  Denver  &  R. 
G.  R.  Co.  V.  Ailing.  99  U.  S.  474 ;  St.  Joseph 
&  D.  C.  R.  Co.  V.  Baldwin.  103  U.  S.  426. 

The  Act  of  Congress  of  March  3,  1875, 
granting  rights  of  way  through  public  lands 
to  certain  railroads,  applies  only  to  railroads 
which  are  common  carriers  ;  and  whenever 
application  is  made  to  the  secretary  of  the 
interior  by  a  railroad  company  for  his  ap- 
proval of  its  map  locating  the  proposed  line 
of  road,  it  is  the  duty  of  the  secretary  to 
ascertain  whether  the  railroad  is  for  public 
or  private  use.  Union  River  L.  R.  Co.  v. 
Noble,  9  Mackey  (D.  C.)  555.— Quoting 
Steel  V.  St.  Louis  S.  &  R.  Co.,  106  U.  S.  447  ; 
Johnson  v.  Towsley,  13  Wall.  73. 

When  the  secretary  has  approved  the 
location  of  the  route,  and  the  company, 
acting  upon  that  authority,  has  expended 
money  in  the  construction  of  its  road,  the 
legal  title  to  the  right  of  way  becomes 
vested  in  the  company,  and  the  title  so 
vested,  even  if  improperly  acquired,  catmot 
be  divested  by  any  action  on  the  part  of  the 


secretary,  or  his  successors,  but  only  by  due 
process  of  law.  Union  River  L.  R.  Co.  v. 
Noble,  9  Mackey  (D.  C.)  555. 

The  above  act  did  not  convey  a  present 
right  of  way  to  all  railroad  companies  that 
might  thereafter  be  organized  over  the  public 
lands  then  belonging  to  the  United  States, 
but  such  grant  took  elTect  only  on  the  ap- 
proval of  the  location  of  the  road  by  ilie  sec- 
retary of  the  interior.  Chicago,  K,  &*  i\'. 
R,  Co.  V.  Van  Cleave,  57  Am.  &•  Enj^.  R. 
Cas.  522,  52  Kan.  665,  33  I'ac.  Rep.  472. 

Under  the  above  act  a  company  obtains 
no  right  to  grounds  for  station  buildinf^s 
until  it  has  complied  with  section  4  of  tlio 
act,  requiring  it  to  file  with  the  register  of 
the  laiid  office  for  the  district  where  such 
land  is  located  a  profile  of  its  road.  Lilien- 
thal  v.  Southern  Cal.  R.  Co.,  56  Fed.  Rep. 
701. 

30.  How  far  railroa<lH  are  "  liigli- 
waiyH"as  that  term  Im  ustMi  in  tlio 
statute.  —  Under  U.  S.  Rev.  St.  §  2477, 
declaring  that  "the  'ight  of  way  for  the 
construction  of  highways  over  public  lands 
not  reserved  for  public  uses  is  hereby 
granted,"  the  word  "highway"  includes 
railroads.  Tennessee  &*  C.  R.  Co.  v.  Taylor, 
57  Am.  &*  Eng.  R.  Cas.  296,  102  Ala.  224, 
14  So.  Rep.  379- 

Railways,  though  not  strictly  "  highways," 
like  plank  and  macadamized  roads,  are 
highways  within  the  meaning  of  the  above 
statute.  Flint  &*  P.  M.  R.  Co.  v.  Gordon, 
41  Afic/i.  420. 

The  construc.ion  of  its  road  by  a  railway 
company  under  a  publ-c  act  granting  the 
right  of  way  across  the  public  lands  would 
be  both  a  suthcient  and  an  equitable  con- 
sideration for  the  right  of  way.  Flint  &•  P. 
Al.  R.  Co.  V.  Gordon,  41  A/ic/i.  420. 

The  Act  of  Congress  of  July  26,  1866, 
which  declares  that  "the  right  of  way  for 
the  construction  of  highways  over  public 
lands  not  reserved  for  public  uses  is  hereby 
granted,"  does  not  include  railroads.  />'«>- 
ling  ton,  K.  <S-  S.  IV.  R.  Co.  v.  Johnson.  33 
Am.  <S-  Eng.  R.  Cas.  215,  38  Kan,  142,  16 
Pac.  Rep.  125. 

40.  Priority  of  tcrantcos  over  otli(>r 
conveyances,  iiossessory  titles,  etc. — 
The  grant  by  the  U.  S.  of  a  right  of  way  to 
the  Central  Pacific  R.  Co.  over  public  lands 
vests  in  the  compiny  full  400  feet  for  rail- 
road purposes,  and  one  in  possession  with- 
out title  cannot  prevent  the  company  enter- 
ing on  the  same,  nor  recover  damages  for 


PUBLIC   LANDS,  41,42. 


1121 


only  by  due 
L.  R.  Co.  V. 

ly  a  present 

panics  tliat 

crtliepul)lic 

itecl  States, 

y  on  tlie  ap- 

(1  by  the  sec- 

0,  K.  iS~»  A'. 

&^  Ent;.  A\ 

''■/>.  472. 

any  <>l>iaiiis 

II    liuihliiii^s 

ion  4  of  tlif 

e  register  of 

wliere  siicii 

oad.    Lilit'H- 

;6  Fed.  Rep. 

lire  "  liiKli- 
iHcti  ill  the 

St.  §  2477. 
way  for  tiie 
pnblic  lands 
!S  is  hereby 
ay  "  includes 
Co.  V.  Taylor, 
to2  Ala.  324, 

jT "  highways," 

:d   roads,  are 

of  the  aiiuve 

Co.  V.  Gordon, 

I  by  a  railway 
granting  the 
z  lands  would 
iquitablc  con- 
'.  Flint  Sf-r. 
420. 

July  26,  1866, 
;ht  of  way  for 
s  over  public 
uses  is  hereby 
ilroads.  liur- 
V.  Johnson.  33 
8  Kan,  142,  16 

H over  other 
ritlett,  etc.— 

ght  of  way  to 
;r  public  lands 
I  feet  for  rail- 
isscssion  with- 
Dmpany  enter- 
r  damages  for 


ao  doing.  Doran  v.  Central  Pac.  R.  Co.,  24 
Cat.  245.— Quoted  in  Hybee  v.  Oregon  & 
C.  R.  Co..  24  Am.  &  Eiig.  R.  Cas.  127,  26 
Fed.  Rep.  586. 

As  against  one  holding  title  under  a  pat- 
ent of  the  United  States,  wliicli  contains  no 
reservation  of  right  of  way  to  the  railroad 
company,  the  right  of  way  granted  to  the 
Northern  Pacific  railroad  company  by  the 
Act  of  Congress  of  July  2.  1864,  did  not  at- 
tach to  a  tract  of  land  200  feet  in  width  tm 
each  side  of  the  railroad  as  aciually  con- 
structed, where  the  railroad  as  constructed 
crossed  the  land  in  question,  but  the  line  of 
its  "  definite  location  "  shown  on  its  map, 
fded  witli  the  secretary  of  the  interior,  and 
accepted  by  him,  did  not  cross  such  land,  but 
passc<i  It  at  a  <iistaiii'e  of  two  miles.  By 
filing  its  map  of  "definite  location"  the 
company  exhausted  its  right  of  selection, 
and  anchored  the  land  grant  to  this  fixed 
line  so  that  it  could  not  tiiereafter  change 
or  vary  it,  without  legishiiive  consent,  so  as 
to  affect  titles  accruing  thereunder  or  in 
any  way  affected  thereby.  Smith  v.  North- 
ern Pac.  R.  Co.,  57  Am.  &*  Eng,  R.  Cas.  345. 
58  Fed.  Rep.  513, 

The  decision  of  the  commission  appointed 
under  section  4  of  the  said  act  to  determine 
whether  or  not  the  railroad  and  telegraph 
lines  were  constructed  in  a  substantial  and 
workmanlike  manner,  which  decision  was 
appr<jved  by  the  president,  could  have  no 
effect  upon  the  rights  of  the  said  grantee, 
holding  under  a  patent  issued  by  the  United 
States  without  any  reservation,  when  the 
public  record  made  by  the  company  of  the 
definite  location  of  its  line  two  miles  from 
the  land  in  question  remained  unchanged 
and  without  amendment.  Smith  v.  North- 
ern Pac.  R.  Co.,  57  Am.  &»  Eng.  R.  Cas.  345, 
58  Fed.  Rep.  513. 

Tlie  Act  of  Congress  of  March  3,  1855. 
extending  the  provision  of  the  act  of  Aug. 
4,  1853.  granting  a  right  of  way  to  all  rail 
and  plank  roads  over  the  public  lands,  sim- 
ply extended  the  act  of  1852  with  its  provi- 
sions, exceptions,  and  restrictions,  so  as  to 
operate  in  tlie  territories  the  same  as  in  the 
states.  Simonson  v.  Thompson,  25  Minn. 
450. 

Under  the  Act  of  Congress  of  Marcn  3, 
1857,  making  a  grant  of  land  to  the  territory 
of  Minnesota  for  the  construction  of  1  ail- 
roads,  and  the  act  of  such  territory  of  May 
22.  1857,  to  execute  the  trust  created  by  the 
act  of  congress,  the  Minnesota  &  Pacific 
6  D.  R.  D.-71 


railroad  company  was  authorized  to  appro- 
priate a  right  of  way  over  the  public  lands 
of  the  United  States,  except  where  the  In- 
dian title  might  still  exist,  and  except,  prob- 
ably, laiKls  tjtherwise  appropriated  by  the 
general  government;  and  one  who  pur- 
chased after  the  location  of  the  road  took 
subject  to  the  right  of  way,     Simonson  v. 

Thompson,  25  Minn.  450.— Foi.i.owr.ii  in 
Coleman  v.  St.  Paul,  M.  &  M.  R.  Co.,  38 
Minn.  260,  36  N,  W.  Rep.  638. 

The  act  of  congress  granting  lands  to  the 
Northern  Pacific  railroad  gave  that  com- 
pany the  right  of  way  over  mineral  lands  o( 
the  United  States;  and  if  at  the  time  such 
right  attached  to  them  certain  of  said  lands 
were  unoccupied,  any  patents  thereto,  issued 
afterwards  to  locators,  would  be  inferior  to 
such  right  of  way,  and  would  have  to  yield 
to  it  without  a  resort  to  a  court  of  equity. 

IViUiiison  v.  Northern  Pac.  R.  Co.,  20  Am, 
&*  Eng.  R.  Cai.  320,  5  Mont.  538, 6  Pac.  Rep. 

349. 

A  company,  chartered  by  state  law.  laid 
its  track  across  a  tract  of  land  which  be- 
longed to  the  United  States,  without  ob- 
jection, but  without  condemning  the  same. 
After  five  years  the  United  States  sold  the 
land  by  metes  and  bounds,  without  reserv- 
ing the  roadbed,  to  an  individual  who  had 
knowledge  of  the  existence  of  the  railroad, 
and  who  afterwards  sued  to  recover  the 
strip  used  as  a  right  of  way.  Held,  that  the 
land  was  "  public  land  "  within  the  meaning 
of  the  Act  of  Congress  o'  1866,  which 
granted  the  right  to  construct  highways 
over  public  lands,  and  that  plaintiff  was  not 
entitled  to  recover.  Verdier  v.  Port  Royal 
R.  Co.,  10  Am.  &»  Eng.  R.  Cas.  677,  15  So. 
Car.  476. 

41.  Seciirini;:  the  rif(ht  of  wny, 
i;«iierully. — Under  the  acts  of  congress 
prescribing  the  mode  in  which  a  railroad 
company  may  secure  the  right  of  way 
through  the  public  lands  it  is  the  duty  of 
the  company,  and  not  the  contractor  build- 
ing the  road,  to  do  the  things  required  by 
the  act  to  secure  the  right  of  way.  Fitzger 
aid  V.  Missouri  Pac.  R.  Co.,  50  Am.  &*  Eng. 
R.  Cas.  622.  45  Fed.  Rep.  812. 

4ii.  Filiiit;  inapN,  phits,  etc. — The^ 
Act  of  Congress  of  August  4,  1852.  which 
grants  to  railroad  companies  the  right  of 
way  over  the  public  lands  in  the  states 
where  such  lands  lie.  ceases  to  operate  on 
said  lands  after  they  have  been  entered  and 
purchased  by  a  citizen,  unless  the  railroad 


1132 


PUBLIC  LANDS,  43. 44. 


■' 


-l   ':l 

i    i 
=    1 

5       ,' 

'     1 

i       r 

company  claiming  such  right  of  way  has 
located  its  roadway  and  filed  a  ;»lat  of  the 
locatioiiof  iliesiiine  witli  the  commissioner  of 
tiie  general  land  office  of  the  United  States, 
in  the  manner  required  by  said  act  of  con- 
gress, before  said  entry  is  made.  Alabama 
&-  /•'.  /»'.  Co.  V.  liiokell,  46  Ah.  569.— Dis- 
•riNCUlsMKl)  IN  Swann  v.  Lindsey,  14  Am, 
A'  F.ng.  U.  Cas.  504,  70  Ala.  507. 

The  right  of  way  granted  to  the  Central 
Pacific  railroad  company  of  California,  over 
the  public  lands  of  the  United  States,  for 
its  road,  became  perfect  upon  the  fding  of 
tlic  plat  of  the  location  of  the  railroad  in 
the  proper  land  office,  as  against  pre-cmp- 
tioners  who  had  not  perfected  their  pre- 
emption right  by  payment  of  the  price  of 
the  land.  Western  l\ic.  li.  Co.  v.  Tevis,  41 
Cal,  489,  3  .,-////.  /i>.  Rep.  50. 

Under  the  Act  of  Congress  of  March  3, 
1875,  before  a  railroad  romjianycan  acquire 
a  right  of  way  over  public  lands,  or  lands 
for  station  purposes,  it  must  file  with  the 
register  of  tlie  land  office  for  the  district  a 
profile  of  its  road,  as  required  by  section 
4  of  the  act;  therefore,  where  a  company 
files  a  map  of  land  it  desires  for  station 
purposes  before  it  files  a  profile  of  its  road, 
but  an  individual  files  his  declaratory  state- 
ment and  settles  on  the  land  before  such 
profile  is  filed,  a  patent  issued  to  him  isgood 
as  against  the  claim  of  the  road.  Lilienthal 
V.  Southern  Cal.  A'.  Co.,  56  /•'«■</.  A'«'/.  701. 

4:1.  Filing  nrticlcH  of  uHNOciatioii, 
liroof  of  urffiiiiiztttioii,  vtv.— The  Act 
of  Congress  of  March  3,  1875,  which  grants 
a  right  of  way  over  the  public  lands,  pro- 
vides that  such  right  of  way  shall  extend  to 
any  "  <iuly  organized  "  railroad  company, 
and  which  has  filed  with  the  secretary  of 
the  interior  "  di'.c  proof "  of  its  organization. 
//e/(i,  that  both  due  organi..ation  and  due 
proof  thereof  were  conditions  precedent  to 
acquiring  a  rigiit  of  way.  ll'as/tinglon  &* 
J.  A'.  Co.  V.  C(eur  d'Alene  K.  &*  N.  Co.,  52 
y-V*/.  Kep.  765.  Larsen  v.  Oregon  A\  &*  N. 
Co.,  44  .////.  <S-  Kng.  Ji.  Cas.  92,  19  Oreg. 
240,  23  Pac.  Rep.  974. 

Where  a  company  is  organized  under  a 
territorial  statute,  and  subsequently  changes 
its  route  by  filing  supplemental  articles,  it 
lis  "  organized  "  within  the  meaning  of  the 
above  statute  only  from  the  time  o'  filing 
the  supplemental  articles,  and  must  furnish 
^'  due  proof"  of  such  organization.  Wash' 
j'nglon  &»  I.  A*.  Co.  v.  Cceur  d'Alene  R.  &* 
J\'.  Co,,  52  Fed.  Rep:  765. 


As  due  proof  of  organization  a  com- 
pany filed  a  copy  of  a  communication  from 
^s  |>rcsident  to  the  secretary  of  the  in- 
terior, stating  that  the  company  thereby 
transmitted  the  necessary  documents,  nnd 
which  was  indorsed  that  it  was  received  on 
a  certain  date.  J/eM,  that  the  date  of  such 
indorsement  was  the  earliest  time  at  which 
the  company  could  acquire  a  right  of  way. 
Washington  «S-  /.  R,  Co.  v.  Caeur  d'Aleni 
R.  «**  A'.  Co.,  52  hed.  Rep.  765. 

Where  a  territorial  statute  provides  that 
the  due  incorporation  of  a  railroad  com- 
pany shall  operate  as  an  organization  with- 
out further  proof,  the  filing  with  the 
secretary  of  the  interior  of  articles  of 
incorporation  and  a  copy  of  the  statute  is 
sufficient  proof  of  organization  under  the 
above  statute,  and  the  company  obtains  a 
right  of  way  over  the  public  lands  from  the 
date  of  such  filing.  Washington  &*  I.  R. 
Co,  v.  Caeur  d'Alene  R.  &*  N,  Co.,  52  Fed. 
Rep.  765. 

The  fact  that  one  railroad  company  has 
made  a  survey  over  public  lands,  but  has 
not  complied  with  all  the  conditions  of  the 
act  of  1875,  will  not  give  it  a  right  of  way, 
as  against  another  company,  which  has 
made  no  survey  but  has  complied  with  all 
the  conditions  of  the  statute.  Washington 
&*  I.  R.  Co.  V.  Ca'ur  <  'Alene  R.  &•  N,  Co,, 
52  Fed.  Rep.  765. 

Section  4  of  the  act  of  1875  provides 
that  a  profile  of  a  road  over  public  lands 
shall  be  filed  within  twelve  months.  De- 
fendant road  surveyed  three  routes  over 
public  lands,  but  by  mistake  filed  a  plat  of 
the  wrong  route.  Plaintiff  company  had 
previously  made  an  unauthorized  survey, 
but  took  no  further  steps  until  defendant's 
road  was  completed  and  in  operation. 
Held,  that  defendant  was  not  required  to 
file  a  plat,  as  the  other  road  was  not  misled 
by  the  error  in  filing  a  plat  of  the  wrong 
route.  Washifigton  &*  I,  R.  Co.  v.  Coeur 
d'Alene  R.  &*  N.  Co.,  52  Fed.  Rep.  765. 

44.  Locution  of  liiterMectiiiK  road. 
— An  Act  of  congress  made  a  grant  of  lands 
to  aid  in  the  construction  of  a  railroad  to 
the  intersection  of  another  road,  in  a  certaic 
county,  which  was  not  yet  built;  and  the 
act  required  the  secretary  of  the  interior  to 
withdraw  the  lands  from  market  as  soon  as 
a  map  of  the  route  of  the  road  should  be 
filed.  A  map  was  filed  showing  an  inter- 
section with  the  other  road  ;  but  the  line  of 
the  other  road  was  subsequently  changed. 


PUBLIC  LANDS,  4S,  40.— PUBLIC  PLACES. 


1123 


ion  a  com- 
ication  from 

of  the  in> 
any  thereby 
uinents,  and 

received  on 
date  uf  such 
me  at  which 
•i^ht  of  way, 
aeur  d'Alent 

)rovides  that 
lilroad  com- 
ization  with- 
g  with  the 
articles  of 
he  statute  is 
n  under  tlic 
uiy  obtains  a 
mds  from  the 
i^ton  &*  I.  A'. 
,  Co.,  52  Feif. 

company  has 
ands,  but  has 
ditions  of  the 
riyht  of  way, 
y,  whicli  has 
iplied  with  all 
Washington 
K.  &-  A'.  Co., 

1875   provides 
;r  public  lands 
months.      De- 
e  routes  over 
filed  a  plat  of 
company   had 
orized  survey, 
til  defendant's 
in    operation. 
3t  required  to 
viis  not  misled 
L  of  the  wrong 
V.  Co.  v.  Ca'ur 
Rep.  765. 
icctiiitf  road. 
,  grant  of  lands 
if  a  railroad  to 
lad,  in  a  certaiE 
built;  and  the 
the  interior  to 
rket  as  soon  as 
-oad  should  be 
wing  an   inter- 
but  the  line  of 
lently  changed, 


to  as  to  require  a  change  in  the  line  of  the 
road  in  question,  and  the  change  was  made 
and  a  new  map  filed,  which  was  approved 
by  the  secretary  of  the  interior.  //<•///,  that 
the  first  location  was  not  conclusive  as  to 
the  land  included  in  the  grant ;  that  the 
secretary  of  the  interior  was  authorized, 
without  a  further  act  of  congress,  to  with- 
draw from  sale  the  lands  within  the  place 
limits  of  the  new  location.  Western  Land  Co. 
V.  Itamblin,  79  Iowa  539. 44  A'.  W.  Rep  807. 
4n.  Ed'uet  of  rc|iL'ul  of  Httitiitory 
Kraut.— Where  a  right  of  way  is  given  to  a 
railroad  over  certain  lands  by  an  act  of  the 
legislature,  and  afterwards,  and  before  the 
location  and  construction  of  the  road,  the 
act  is  repealed,  the  company  secures  no 
right  of  way  by  the  construction  of  its  ruad 
after  the  repealing  of  the  act  granting  such 
right  of  way.  Roberts  v.  Missouri,  K.  &*  T. 
R.  Co.,  43  Am.  &■*  Eng.  R.  Cas.  532.  43  Kan. 
102.  22  Pac.  Rep.  1006. 

4<l.  CoiKUMiiiiiitioii  of  right  of  way. 
—The  Act  of  Congress  of  Aug..  1852,  which 
gives  a  right  of  way  over  the  public  lands, 
does  not  give  the  right  to  enter  upon  prem- 
ises in  the  actual  occupancy  of  a  settler 
without  paying  him  damages.  The  act 
only  relinquishes  the  right  of  the  United 
Slates  to  demand  compensation,  and  only 
refers  to  such  lands  as  are  vacant.  Califor^ 
nia  Northern  R.  Co.  v.  Gould,  3i  Cal.  254.— 
Rkvif.winu  Robbins  v.  Milwaukee  &  H.  R. 
Co.,  6  Wis.  636. 

When  the  entry  of  a  pre-emption  claimant 
has  been  suspended,  and  proceedings  to 
condemn  a  right  of  wjiy  through  the  land 
for  a  railroad  have  been  instituted,  the 
claim  of  the  railway  company  for  a  continu- 
ance of  the  latter  proceedings  |)ending  the 
determination  01  the  suspended  entry  by  the 
department  of  the  general  land  office  ap- 
peals strongly  to  the  discretion  of  the  court. 
Colorado  Midland  R.  Co.  v.  limvles,  14  Colo. 
85,  23  Pac.  Rep.  467. 

New  York  constitution  of  1841,  providing 
that  the  salt  lands  near  the  city  of  Syracuse, 
and  those  contiguous  thereto,  shall  not  be 
sold,  does  not  extend  to  the  taking  of  such 
lands  for  highways  and  railroads.  Parmelee 
V.  Oswego  &*  S.  R.  Co.,  7  lirb.  {N.  Y.)  599; 
ajgHrmed  in  6  A^.  Y.  74. 

It  was  not  the  intention  of  the  framers 
of  the  constitution,  when  they  forbade  the 
sale  of  lands  contiguous  to  the  salt  springs, 
to  prohibit  the  appropriation  of  such  parts 
of  them  as  might   be  necessary  for  public 


highways,  canals,  or  railroads.  An  act, 
therefore,  which  provides  for  the  taking  of 
such  portions  of  those  lands  as  may  be 
necessary  for  the  construction  of  a  railroad, 
upon  the  appraisal  and  payment  of  the 
damages  to  the  state  occasioned  thereby, 
is  not  in  conflict  with  the  constituticmal 
prohibition  ol  the  sale  of  such  lands.  Such 
an  appropriation  ol  the  lands  is  not  a  sale, 
within  the  letter  or  spirit  of  the  constitu- 
tion. Parmelee  v.  Oswego  &*  S.  R.  Co..  7 
Jiarb.  {.y.  J'.)  599 :  affirmed  in  6  A'.   J'.  74. 

A  company  constructed  its  road  over 
lands  acquired  by  the  United  States,  under 
the  provisions  of  the  direct  tax  act  of  1863 
(12  U.  S.  St.  432),  without  objection  by  the 
government,  or  claim  to  a  right  of  notice  or 
demand  for  the  appointment  of  commis- 
sioners to  assess  compensation  ;  after  five 
years'  use  by  the  company  the  United  States 
sold  the  land  by  metes  and  bounds,  without 
reservation  of  thr  roadbed,  to  plaintiff, 
who  had  knowledge  of  its  possession  and 
use  by  the  railroad  company.  Me  after- 
wards brought  suit  for  the  recovery  of  the 
strip  of  this  land  used  by  the  railroad  com- 
pany, and  for  damages,  and  proved  his 
title  deed  from  the  United  States.  Held, 
that  he  was  properly  nonsuited.  Verdier 
V.  Port  Royal  R.  Co.,  10  Am.  &*  ktig.  R. 
Cas.  677,  15  So.  Car.  476.— Reviewed  in 
Tompkins  v.  Augusta  &  K.  K.  Co.,  21  "^o. 
Car.  420. 

Where  the  legislature  grants  a  charter 
to  4  corporation  to  construct  a  railroad 
through  vacant  and  unappropriated  lands 
of  the  state,  and  the  road  is  constructed  ac- 
cordingly, any  person  who  afterwards  enters 
the  land  takes  the  fee-simple  title  subject  to 
the  right  of  way  granted  to  the  company, 
and  is  not  entitled  to  damages  for  the  land 
taken.  Davis  v.  East  Tenn,  &-  G.  H.  Co., 
I  Sneed  ( Tenn.)  94. 


PUBLIC  OFFICERS. 
Abatement  of  nuisances  by,  see  Ni;isancb> 
14. 


"PUBLIC  OR  PRIVATE  CON- 
VEYANCE." 

Meaning  of,  in  accident  insurance  law,  see 
Accident  Insukance,  5. 


PUBLIC  PLACES. 

Ordinance    requiring    fences    where     road 
passes,    see    Strekts    and    Highways, 

:U2. 


^, 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


1.1 


U£|2j8 


2.5 
2.2 

2.0 


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Photographic 

Sciences 

Corporation 


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23  WIST  MAIN  STRUT 

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1124 


PUBLIC   POLICY— PURCHASERS. 


ni 


i'i'    ' 


■!■! 


!'J 


'}l 


■;1 


PUBLIC  POLICY. 

Contracts  against,  not  specifically  enforced, 
see  Sl'KCIl'iC  Fkrfor.mance,  17. 

—  granting  exclusive  privileges,  when  void 
as  against,  see  TEi.iit;RArn,  eic.  Lines, 
o. 

—  to  locate  station,  when  contrary  to,  see 

Stations  and  Depots,  38. 

—  void  as  against,  see  Contracts,  56-67. 


PUBLIC  USE. 
..%l>utting  easements  taken  by  elevated  rail- 
roads are   for,  see  Elevated  Railways, 

3 '  i'  .nation  of  land  previously  devoted  to, 
,  "^AiiNENT  Domain,  104-124. 

(.  ■■s-'^z  of  one  road  by  another,  when  a,  see 
CrcssiNG  OF  Railroads,  23. 

Of  street,  abutting  owner  may  enjoin  in  cases 
of  destruction  of,  see  Streets  and  High- 
ways, 227. 

Power  to  take  property  for,  see  Eminent  Do- 
main, 68-»0. 

Presumption  of  dedication  from,  see  Streets 
AND  Highways,  11. 

Prior,  in  patent  law,  see  Patents  for  Inven- 
tions, 6. 

Private  way  in  lands  dedicated  for,  see  Pri- 
vate Ways,  4. 

Right  to  have  street  opened  for,  see  Streets 
AND  Highways,  136. 

Second  condemnation  must  not  be  for  same, 
see  Eminent  Domain,  106-108. 

What  is,  under  condemnation  laws,  see  Emi- 
nent Domain,  178-190. 


PUBLISHING. 

Of  freight  and  passenger  schedules,  see  In- 
terstate Commerce,  131-141. 

Rates,  under  New  Hampshire  statutes,  see 
Charges,  68. 


PUNISHMENT. 
For  coutempt,  see  Contempt,  0-12. 
—  disobedience  of  mandamus,  see  Mandamus, 

37  ;  Municipal  and  Local  Aid,  296. 
In  England  for  traveling  with  intent  to  avoid 

payment  of  fare,  see  Tickets  and  Fares, 

149. 
Of  corporations  for  contempt,  see  Contempt, 

11,  12. 

PUNITIVE  DAMAGES. 
Averments  of  warrant,  see  Damages,  80. 
Disregarding  error  in  instructions  as  to,  see 

Appeal  and  Error,  82. 
Erroneous  instruction*  as  to,  see  Appeal  and 

Error,  40. 


For  ejection  of  passenger   from   train,  see 
Ejr.cTiON  OF  Passengers,  112-110. 

—  injuries  caused  by  derailment,  see  Derail- 

menp,  7. 
In  actions  for  false  imprisonment,  see  Falsp. 

Imprisonmeni',  20. 
injuries  to  employes,  see  Employes, 

Injuries  to,  754. 

—  trespass  to  land,  see  Trespass,  18. 
Sufficiency   of    averment    to   warrant,    see 

Death  by  Wrongful  Act,  147. 
When  deemed  excessive,  see  Carriage  of 
Passengers,  651. 

—  recoverable  against  carrier  of  passengers, 

see  Carriage  of  Passengers,  634-<i30. 
for  torts  of  servants,  see  Agency,  02, 

03. 
in  actions  for  causing  death,  see  Death 

BY  Wrongful  Act,  418,  423. 
See  also  Exemplary  Damages. 


PURCHASE. 

By  one  company  of  stock  subscriptions  of 

another,   see    Subscriptions    to  Stock, 

232. 
For  company,  authority  of  president  to  make, 

see  President,  2. 
Of  bridge  already  built,  see  Bridges,  etc., 

13. 

—  competing  road  or  stock  therein,  see  Par- 

allel AND  Competing  Lines,  2,  3. 

—  land  at  tax  sale,  validity  of,  see  Ultra 

Vires,  17. 

—  passenger  tickets,  see  Tickets  and  Fares, 

22-32. 
Seller's  remedy  for  buyer's  refusal  to  com> 
plete,  see  Stock,  58. 


PURCHASE  MONET. 
Buyer's  action  to  recover  back,  see  Sales,. 
16. 


PURCHASERS. 

At  execution  sale,  rights  of,  see  Execution, 
26-20. 
-  foreclosure,  conditions  in  railway  aid  sub- 
scriptions not  binding  on,  see  Municipal 
AND  Local  Aid,  230. 

sale,  rights  and  liabilities  of,  see  Mort- 
gages, 240-267. 

—  judicial  sale,  redemption  by,  see  Mort- 

gages, 313. 
— rights  of,  see  Judicial  Sale,  6. 

—  tax  sale,  rights  and  title  of,  see  Taxation. 

320. 

Delivery  to,  at  execution  sale,  see  Execu- 
tion, 20. 

Effect  of  surrender  of  road  to,  on  liability  for 
acts  of  receiver,  see  Receivers,  1 80. 


train,  see 
[2-119. 

I,  see  Derail- 

Int,  see  False 
EC  Employes, 

M.  18. 

7arrant,    see 
147. 
■  Carriage  of 

|f  passengers, 
G34-»:ti>. 

I  Agency,  92, 

th,  see  Death 
23. 

MAGES. 


bscriptions  of 

IS    TO  Stock, 

ident  to  make, 

Bridges,  etc., 

srein,  see  Par- 
s,  2,  3. 

of,  see  Ultra 

ETs  AND  Fares, 
fusal  to  com> 

BY. 

:k,  see  Sales,. 


:e  Execution, 

Iway  aid  tub- 
«ee  Municipal 

1  of,  see  Mort- 

j,  see   MoRT- 

Sale,  6. 
see  Taxation, 

\,  see  ExEcu- 

n  liability  for 
ERS,  186. 


PURCHASING  AGENTS— QUARANTINE,  1 


1125 


Exemption  from  taxation,  when  passes  to,  see 
Taxation,  155,  156. 

From  assig;nee,  for  creditors,  rights  of,  see 
Assignment  for  Benefit  of  Creditors, 
6. 

in  bankruptcy,  rights  of,  see  Bank- 
ruptcy, 7. 

Liability  of  carrier  to,  after  stoppage  in 
transitu,  see  Carriage  of  Merchandise, 
504-509. 

for  killing  stock  after  sale,  see  Ani- 
mals, Injuries  to,  050. 

Of  corporate  bonds,  rights  of,  see  Bonds, 
31-50. 

—  drafts  attached  to  bill  of  lading,  rights  of, 

see  Bills  of  Ladinc,  127. 

—  land,  rights  and  liabilities  of,  see  Vendor 

AND  PuKCHASER. 

sought  to  be  condemned,  when  proper 

parties,  see  Eminent  Domain,  270. 

—  municipal  aid  bonds,  subrogation  of,  see 

Sdbrogatton,  6. 

—  property  attached,  rights  of,  see  Attach- 

ment, etc.,  69. 

—  railroads,  rights  and  liabilities  of,  see 
Sales  OF  Railroads,  12-10. 

—  receivers'  certificates,  rights  of,  see  Re- 

ceivers, 105. 


aVAIIFIGATIONS. 

Of  appraisers  or  viewers,  see  Eminent  Do- 
main, 476. 

—  arbitrators,  see  Arbitration  and  Award, 

7  ;  Eminent  Domain    A  254. 

to  assess  land  dai  ages,  see  Eminent 

Domain.  480. 

—  commissioners  to  assess  land  damages, 

see  Eminent  Domain,  500. 

—  directors,  see  Directors,  etc.,  2. 

—  experts,  see  Witnesses,  146-151, 

—  jurors,  see  Trial,  29. 

—  referees,  see  Reference,  2. 


aUALITY. 

Deterioration  in.  damages  for,  see  Carriage 

OF  Live  Stock,  159. 
Of  goods  shipped,  bill  of  lading  as  evidence 

of,  see  Bills  of  Lading,  18. 

aUANTITY. 

Controlled  by  metes  and  bounds,  see  Deeds, 

17. 
Of  goods  lost,  proof  of,  see  Carriage  of  Mer* 

CIIANDISE,   755. 

—  land  described  in  petition,  company  may 


Of  road,  enforcement  of  lien  for  taxes  against, 

see  Taxation,  310. 
sale  by,   to  existing  corporation,  see 

Reorganization,  3. 

—  scalpers'  tickets,  rights  of,  see  Tickets 

AND  Fares,  151. 

—  stock,  rights  of,  see  Stock,  72-79. 
when  entitled  to  dividend,   see   Divi- 
dends, 7. 

When  entitled  to  land  damages,  see  Eminent 
Domain,  435. 


FURCHASINQ   AGENTS. 
Implied  powers  of,  see  Agency,  16. 
Rights,  powers,  and  duties  of,  see  Officers, 
13. 


PURPOSE. 

Of  taking  land,  stating,  in  petition,  see  Emi- 
nent Domain,  320. 

—  taxation,  interpretation  of  statute  as  to, 
see  Taxation,  54. 

must  be  public,  see  Taxation,  3. 


PUSH-CARS. 
Duty  to  employes  as  to  safety  of,  see  Em- 
ployes, Injuries  to,  128. 


take   less  than,  see  Eminent  Domain, 

318. 
Of  land  included  in  grant,  how  ascertained, 

see  Land  Grants,  47. 
taken,  setting  forth,  in  report  of  com* 

missioners,  see  Eminent  Domain,  790. 
to  be  taken  in  condemnation  proceed* 

ings,  see  Eminent  Domain,  92. 
—  shipment,  bill  of  lading  as  evidence  of,  see 

Bills  of  Lading,  17. 


aUANTUM  MERUIT. 

Suits  on,  see  Ultra  Vires,  26. 
See  also  Assumpsit,  6. 


aUARANTINE. 

1.  Right  of  8tate  to  enforce  quar> 
niitiiie  laws. — There  is  nothing  in  any 
existing  treaty  with  Norway  and  Sweden  in 
conflict  with  the  institution  and  enforce- 
ment by  any  one  or  more  of  the  states  of 
the  Union  of  quarantine  regulations.  Min- 
neapolis, St.  P.  &*  S.  St.  M.  R.  Co.  v.  Mil- 
tier,  57  Feii.  Rep.  276. 

A  federal  court  will  not  issue  an  injunc- 


^ 


1126 


QUARANTINE,  2,  3.— QUESTION  OF   FACT. 


^♦:h 


tion  to  restrain  the  enforcement  of  a  state 
quarantine  law,  alUiough  the  immigrants 
detained  thereby  have  been  examined  and 
passed  by  federal  health  ofiice'-s.  Minne- 
apolis, St.  P.  <S-  S.  St.  M.  R.  Co.  V.  Milmr, 
57  Fed.  Rep.  276. 

2.  Detention  and  disinfection  of 
ininii{?rnntM.  —  The  detention  of  immi- 
grants by  a  state  board  of  health,  for  the 
purpose  of  preventing  the  spread  of  disease, 
is  not  a  regulation  of  foreign  commerce  by 
the  state,  and  is,  therefore,  not  in  violation 
of  the  Federal  Constitution,  art.  i,  §  8. 
Minneapolis,  St.  P.  &*  S.  St.  M.  R.  Co.  v. 
Milner,  $7  Fed.  Rep.  276.— Following 
Brown  v.  I'ut  land,  12  Wheat.  (U.  S.)  419. 
Reviewing  License  Cases,  5  How.  (U.  S.) 
504  ;  Crutcher  v.  Kentucky,  141  U.  S.  47,  1 1 
Sup.  Ct.  Rep.  851. 

Though  immigrants  come  from  a  country 
where  there  is  no  infectious  disease,  still 
they  may  be  detained  under  state  quaran- 
tine regulations,  where  they  have  traveled 
with  other  persons  who  come  from  an  in- 
fected country.  Minneapolis,  St.  P.  &•  S. 
St  .If.  R.  Co.  V.  Milner,  57  Fed.  Rep.  276. 

3.  Imposing  costs  and  cliar^^es.— 
The  costs  of  enforcing  a  state  quarantine 
law  against  immigrants  may  be  imposed 
upon  the  carrier  that  brings  the  suspected 
persons  into  the  country.  Minneapolis,  St. 
P.  (S-  S.  St.  M.  R.  Co.  V.  Milner,  $7  Fed. 
Rep..276. 


aUASHINO. 

Insufficient  petitions  in  condemnation  pro- 
ceedings, see  Eminent  Domain,  !{til. 
Of  attachment,  see  Attachment,  etc.,  50. 


aUESTION  OF  FACT. 

As    regards    negligence,    see    Negligence, 

01-74. 
—  to  contributory  negligence,    see  Street 

Railways,  430-435. 
credibility  of  witnesses  for,  see  Wrr- 

NESSKS,  28. 

deceased's  negligence,  see  Death  by 

Wrongful  Act,  202. 

negligence,  see  Carriage  of  Merchan- 
dise, 154. 

Authority  of  agent,  when  a,  see  Agency,  22. 

Care  required  from  traveler  at  crossing,  when 
a,  see  Crossings,  Injitkies,  etc.,  at,  243. 

Contributory  negligence  of  licensee,  when  a, 
see  Licensees,  Injuries  to.  2f>. 

passenger  in  boarding  train,  when 

a,  see  Carriage  uf  Passengers,  370, 
300. 


Contributory  negligence  of  passenger,  when 
a,  see  Carriage  of  Passengers,  303. 

person  injured,  when  a,  see  Cross- 
ings, Injuries,  etc.,  at,  218. 

trespasser,  when  a,  see  Trespassers, 

Injuries  to,  1 14. 

when  a,  see  Carriage  of  Merchandise, 

18J) ;  Crossings,  Injuries,  etc.,  at, 
318,310. 

Dedication,  when  a,  see  Streets  and  High- 
ways, O. 

Delay,  when  a,  see  Carriage  or  Merchandise, 
139. 

Diminution  of  rental  value,  when  a,  see  Ele- 
vatei)  Railways,  150. 

Discrimination,  when  a,  see  Discrimination, 
8. 

Duty  of  company  to  persons  on  track,  when 
a,  see  Licensees,  Injuries  to,  25. 

traveler  at  crossing  to  look  and  listen, 

when  a,  see  Crossings,  Injuries,  etc,  at, 
258. 

—  to  look  and  listen,  when  a,  see  Crossings, 

Injuries,  etc.,  at,  307. 
station  flagman  at  crossing,  when  a, 

see  Crossings,    Injuries,    etc.,   at,    75, 

70. 
Employment,  when  a,  see  Employes,  O. 
Existence  of  license,  when  a,  see  License,  O. 
In  actions  by  and  against  express  companies, 

see  Express  Companies,  80. 

—  —  for  causing  death,  see  Death  by 
Wrongful  Act,  289-304. 

failure  to  build  or  repair  cattle- 
guards,  see  Cattle-guards,  31. 

flowing  lands,  see  Flooding  Lands, 

84,  85. 

injuries  at   stations,    sec    Stations 

AND  Depots,  139-143. 

to  children,  see  Children,  Inju- 
ries to,  102- 11 3. 

infant  employes,  see  Employes, 

Injuries  to,  477. 

lost  baggage,  see  Baggage,  121. 

—  cases  of  obstructions  and  encroachments 

in  highways,  see  Streets  and  Highways, 
418. 

—  contest  between  rival  locations,  see  Loca- 

tion OF  Route,  31. 

—  ejectment  by  landowner,  see  Eminent  Do- 

main, 1028. 

Knowledge  and  assent  of  shipper  to  limita- 
tion of  liability,  when  a,  see  Carriage  of 
Merchandise,  435. 

Negligence  in  failing  to  give  signals,  when  a, 
see  Crossings,  Injuiues,  etc.,  at,  130- 
1.38. 

management  of  turntable,  when  a,  see 

Children,  Injuries  to,  33. 

—  of  company,  when  a,  see  Crossings,  In- 

juries, etc,  at,  22. 


ienger,  when 
Rs,  363. 

a,  see  Cross- 
i. 

Trespassers, 

Merchandise, 

S,      ETC.,     AT, 
S  AND   HlGH> 

iIerchandise, 

n  a,  see  Ele- 

crimination, 

track,  when 
>,  25. 

>k  and  listen, 

UES,  ETC.,  AT, 

ee  Crossings, 

ing,  when  a, 
re,  AT,    75, 

)y£s,  G. 

e  License,  9. 

ss  companies, 

E    Death    by 

■ 

epair  cattle- 
31. 

oDiNG  Lands, 

see   Stations 

ildren,  Inju- 

ee  Empi.oy£s, 

iAGE,  121. 
icroachments 

D  Highways, 

ms,  see  Loca- 
Eminent  Do- 

>er  to  limita- 

Carriagk  of 

nals,  when  a, 

c,  at,  i;i({- 

,  when  a,  see 

ROSSINGS,    Ln- 


QUESTIONS— QUESTIONS   OF   LAW  AND   FACT. 


iisr 


Negligence  when  a,  see  Carriage  of  Live 
Stock,  44;  Carriage  of  Merchandise, 
185. 

On  trial  for  assault,  see  Assault,  15. 

Parents'  negligence  in  actions  for  injuries  to 
children,  when  a,  see  Childri.n,  Injuries 
to,  141-140. 

Reasonableness  of  rates,  when  a,  see 
Charges,  22. 

rules,  when  a,  see  Carriage  of  Passen- 
gers, (13. 

Reasonable  time  for  removal  of  goods,  when  a, 
see  Carriace  of  Merchandise,  84,  343. 

to  call  for  baggage,  when  a,  see  Bag- 
gage, 70. 

Shipper's  assent,  when  a,  see  Bills  of  Lad- 
I.NG,  32. 

Sufficiency  of  delivery  of  goods  by  carrier, 
when  a,  see  Carriage  of  Merchandise, 
208. 

fence,  when  a,  see  Fences,  81. 

gate,  when  a,  see  Crossings,  Injuries, 

ETC.,  AT,  58. 

Weight  of  evidence,  when  a,  see  Evidence, 
285. 

expert  testimony,  when  a,  see  Wit- 
nesses, 197. 

negative  testimony,  when  a,  see  Evi- 
dence, 208. 

What  is,  or  is  not,  baggage,  when  a,  see 
Baggage,  30. 

When  do  not  call  for  expert  testimony,  see 
Witnesses,  141. 

—  for   jury,    see    Carriage  of   Live  Stock, 

154;  Carriage  of  Passengers,  OOO  ; 
EMTLOYfes,  Injuries  TO,  050-752  ;  Fly- 
ing Switch,  3;  Liuel,  etc.,  lO ;  Trial, 
100-112. 

—  negligence  in  attempting  to  cross  track  is 

a,  sep  Crossings,  Injuries,  etc.,  at,  320. 
Whether    company  exercised  proper  care, 
when  a,  see   Crossings,    Injuries,   etc., 
at,  2-5.  

aUESTIONS. 
Of  intent  in  awarding  exemplary  damages, 
see  Damages,  20. 

—  necessity  for  condemnation  of  land,  how 

determined,  see  E.mine.nt  Domain,  02. 

To  witness  calling  for  conclusion,  see  Wit- 
nesses, 55. 

What  are  open  for  consideration  on  appeal, 
see  Eminent  Domain,  020. 

up  for  review  on  appeal  in  town  bond- 
ing proceedings,  see  Municipal  and  Lo- 
cal Aid,  431. 

—  call  for  extra  testimony,  see  Witnesses, 

131-145. 

—  considered  on    application    for    commis- 

sioners to  assess  damages,  see  Eminent 
Domain,  400. 


What  involved  on  hearing  before  commis- 
sioners to  assess  land  damages,  sec 
Eminent  Domain,  507,  508. 

trial  of  ejectment  suit,  see  Eject- 
ment, 27. 

—  may  be  considered  on  certiorari  in  con- 

demnation proceedings,  see  Eminent  Do- 
main, 0((]. 

—  open  on   certiorari  in  town  bonding  pro-. 

ceedings,  see  .Municipal  and  Local  Aid, 
437. 

—  raised  in  creditors'  suits,  see  Creditors' 

Bill,  O. 

—  •  on  certiorari,  see  Certiorari,  1 1. 

J  be  considered  by  jury  in  assessment  of 
damages,  see  Eminent  Domain,  550- 
555. 


aUESTIONS  OF  LAW  AND  FACT. 

Adverse  possession,  when  for  the  jury,  see 

Adverse  Possession,  12. 
Assent  of  shipper  is  a  question  for  the  jury, 

see  Bills  of  Lading,  32. 
As  to  contributory  negligence  of  passenger 

in  boarding  train,  see  Carriage  of  Pas- 
sengers, 370,  300. 
Authority  of  agent,  when  for  jury,  see  Agency, 

22. 
Construction  of  bill  of  lading  a  question  of 

law,  see  Bills  of  Lading,  37. 
Contributory    negligence  of  passenger,   see 

Carriage  of  Passengers,  302,  303. 
trespasser,  see  Trespassers,  Injuries 

TO,  113,  114. 
when  question  for  jury,  see  Carriage 

OF  Merchandise,  180. 
Customs  and  usages,  when  questions  of  fact, 

see  Customs,  5. 
Deceased's   negligence,  when    for  jury,  see 

Death  iiy  WRONOFtn,  Acr,  202. 
Degree  of  negligence  of  a  party  a  question  of 

fact,  seeCoMPARATivr  ^'egligenci:,  20. 
Delay,  when  for  jury,  s^t;  carriage  of  Mer 

CHANDISE,  130. 
Diminution  of  rental   value,   see    Elevaied 

Railways,  15<J. 
In  actions  against  carriers  of  cattle,  see  Car- 
riage OF  Live  Siock,  154. 
passengers,  see  Carriage  op 

Passengers,  OOO. 
by  and  against  express  companies,  see 

Express  C<)MPANies,  80. 

for  assault,  see  Ass.xui.t,  15. 

—    —   —    causing    death,     see    Death    by 

Wrongful  Act,  280-304. 
damages  caused  by  fires,  see  Fires, 

308-320. 
failure  to  build  or    repair  cattle- 

guardd,  sec  Cattle-guards,  31. 


i: 


QUIETING   TITLE— QUO  WARRANTO,  1. 


n 


i'^: 


In  actions  for  flowing  lands,  see  Flooding 
Lanus,  84,  85. 

injuries  caused  by  derailment,  see 

Derailment,  O. 

negligence  of  fallow-servants, 

see  Fellow-skkvants,  506-517. 

in  making  flying  switch,  see 

Flying  Switch,  3. 

to  children,  see  Children,  Inju- 
ries to,  102-113. 

— employes,  see  Employes,  In- 
juries to,  OoO-752. 

—    —   —    infant  employes,   see  Em- 

I'LOYfis,  Injuries  to,  477. 

libel  or  slander,  see  Libel,  eic,  10. 

lost  baggage,  see  Baggage,  121. 

—  —  on  construction  contracts,  see  Con- 
struction OK  Railways,  115. 

contracts,  see  Contracts,  lOO. 

—  stock-killing  cases,  see  Animals,  Injuries 

to,  287-288. 

—  suits  to  quiet  title,  see  Cloud  on  Title,  6. 

Knowledge  and  assent  of  shipper  to  limita- 
tion of  liability,  when  for  jury,  ^ee  Car- 
riage OF  Merchandise,  435. 

Mixed,  as  respects  negligence,  see  Negli- 
gence, 75-78. 

Negligence  and  contributory  negligence, 
when  for  jury,  see  Carriage  of  Live 
Stock,  133. 

—  in  failing  to  construct  culvert,  question  for 

jury,  see  Culverts,  O. 

management  of  turntable,  when  ques- 
tion of  fact,  see  Children,   Injuries  to, 
33. 
K —  of  company  where  employe  is  injured  by 
collision,  see  Collisions,  32. 

^  —  street-car  company  as  to  child  in  street, 
see  Children,  Injuries  to,  06. 

towards  children,  see  Children, 

Injuries  to,  48,  40. 

trespassing  child,  see  Chil- 
dren, Injuries  to,  55. 

—  when  for  the  jury,  see  Carriage  of  Mer- 

chandise, 154,  185. 
Obligation  to  fence  a  question  of  law,  see 

Fencks,  08. 
On  assessment  of  land  damages  by  jury,  see 

Eminent  Domain,  570. 

—  trial  generally,  see  Trial,  05-115. 
Parents'  negligence  in  actions  for  injuries  to 

children,  see  Children,  Injuries  to, 
141-140. 

Presence  or  absence  of  contributory  negli- 
gence, see  CiiNTRinuTORY  Negligence, 
82-05. 

Proximate  cause  of  injury  by  collision,  see 
Collisions,  O. 

Questions  for  jury  in  ejectment  by  landowner, 
see  Eminent  Domain,  1028. 

—  of  negligence,  see  Negligence, '51-78. 


Reasonableness  of  rules,  see  Carriage  of  Pas- 
sengers, 02-G4. 

Reasonable  time  for  removal  of  goods,  see 
Carriagk  of  Merchandise,  84,  85, 
343. 

to  call  for  baggage,  see  Baggage,  70. 

Sufficiency  of  delivery  of  goods  by  carrier, 
see  Carriage  of  Merchandise,  208. 

What  are,  in  actions  for  killing  stock,  ^ee 
Animals.  Injuries  to,  532-554. 

—  is  baggage,  when  a  question  for  the  jury, 

see  Baggage,  30. 

When  negligence  is  for  the  jury,  see  Carriage 
OF  Live  Stock,  44. 

Whether  contract  of  shipment  is  for  through 
shipment,  when  for  jury,  see  Carriage  of 
Merchandise,  Oil. 
-  contractor  is  an  independent  one  or  ser- 
vant, see  Indei'endent  Contractors,  4. 

—  getting  off  moving  cars  is  negligence,  see 

Carriage  of  Passkncers,  410,  420. 

—  person  is  an  employe,  see  Employes,  6. 
Who  is  a  bona  fide  holder  a  question  of  fact, 

see  Bills  of  Lading,  117. 


aUIETING  TITLE. 

To  land  granted,  see  Land  Grants,  00. 
See  also  Cloud  on  Title, 


QUOIIUM. 

At  directors'  meetings,  see  Directors,  etc., 

20. 
—  stockholders'  meetings,  see  Stockholders, 

11. 


aUOTIENT  VERDICT. 

Validity  of,  see  Trial,  188. 


anO  WARRANTO. 

Proceedings  in,  see  Escheat,  3. 

Removal  of  proceedings  for,  to  federal  court, 
see  Removal  of  Causes,  19. 

To  compel  surrender  of  charter,  see  Street 
Railways,  37. 

—  contest  election  of  directors,  see  Direc- 
tors, ETC.,  13. 

1.  General  nature  of  the  remedy.*— 

A  suit  in  the  name  of  a  state,  on  the  relation 
of  individuals,  in  the  nature  of  a  giio  war- 
ranto to  try  tiie  title  of  defendants  to  tlie 
office  of  directors  of  a  railroad,  is  not  within 

*  Proceedings  to  declare  franchise  forfeited, 
see  note,  9  L.  R.  A.  273. 

As  a  rule,  forfeiture  of  charter  must  be  ad- 
judged in  direct  proceeding  by  state,  see  full 
collection  of  authorities  in  note,  8  Am.  St.  Rep, 
193. 


IIAGE  OF  PaS- 

)f  goods,  see 
E,   84,   85, 

AGGAGE,   70. 

by  carrier, 
SI.,  208. 
ig  stock,  ^ee 
554. 
for  the  jury, 

see  Carriage 

s  for  through 

Carriage  of 

t  one  or  ser- 
ractors,  4. 
igligence,  see 
lO,  420. 

lI'LOYis,  6. 

stion  of  fact. 


E. 

NTS,  60. 

rLE, 


RECTORS,  ETC., 
TOCKHOLSERS, 

ICT.  ' 


federal  court, 
it,  sec  Street 
■8,   see  Direc- 

remedy.*— 

n  the  relation 

f  a  yito  war- 

idants  to  the 

is  not  within 

;hise   forfeited, 

r  must  be  ad- 
state,  see  full 
!  Am.  St.  Rep. 


QUO  ViTARRANTO,  2,3. 


1129 


the  meaning  o£  the  Act  of  Congress  of  June 
30,  1870,  providing  tliat  suits  wherein  a  state 
is  a  party  shall  have  priority  over  other  civil 
causes.     Miller  v.  New   York,  1 2  Wall.  ( U. 

-!>"•)  159- 

A  quo  warranto  by  the  commonwealth 
against  a  corporation  puts  in  issue  the  exist- 
ence of  the  corporation,  and  not  mere  irregu- 
larities in  its  organization,  which  are  not 
fata!  to  its  existence.  Com.  v.  Central  Pass, 
li.  Co.,  52  Pa.  St.  506. 

An  attempt  to  declare  and  enforce  a 
forfeiture  of  a  franchise  should  be  in  a 
direct  proceeding  by  quo  warranto  under 
111.  St.,  ch.  112.  Citizens'  Horse  li.  Co.  v. 
Belleville,  47  ///.  ////.  388.  —  APPROVING 
State  ex  rel.  v.  Madison  St.  R.  Co.,  72  Wis. 
612. 

When  the  rights  of  a  corporation  come 
into  inquiry  in  a  collateral  proceeding,  the 
case  is  to  be  treated  as  if  no  ground  of 
forfeiture  existed,  unless  there  has  been  a 
judgment  so  declaring  in  a  direct  action  by 
tlie  state.  Galveston,  //  &>  S.  A.  A'.  Co.  v. 
Slate,  51  Am.  &*  Eng.  R.  Cas.  287,  81  Tex. 
ITi,  17  S.  IV.  Rep.  67. 

2.  Jiirisdictiou.* — An  information,  in 
the  nature  of  a  quo  warranto,  should  be  filed 
and  entered  at  the  law  term.  State  /.  Port- 
landSr'O.  R.  Co.,  58  N.  H.  113. 

The  judges  of  the  supreme  court  of  Ohio 
in  their  private  capacity  iiave  no  power  to 
direct  proceedings  in  the  nature  of  a  quo 
warranto.  Ohio  R.  Co.  v.  State,  10  Ohio 
360. 

The  Ohio  supreme  court  has  jurisdic- 
tion to  inquire  into  and  correct  the  misuse 
of  a  franchise  tiiough  the  corporation  may 
be  enj;ageil  in  interstate  commerce,  and  the 
misuser  or  usurpation  to  be  corrected  relates 
to  and  concerns  that  traffic.  State  ex  rel.  v. 
Cincinnati,  N.  O.  &'  T.  P.  R.  Co.,  42  Am.  6- 
Eng.  R.  Cas.  330,  47  Ohio  St.  1 30,  7  L.  K.  A. 
319,  23  N.  E.  Rep.  928. 

Informations  in  the  nature  of  quo  warranto 
are  not  prohibited  by  N.  J.  Const,  art  i,  §  9. 
Attorney-general  v.  Delaware  &*B.  B,  R.  Co., 
38  N.J.'l.  282. 

The  common  pleas  of  Dauphin  county 
has  jurisdiction  of  a  quo  warranto  against  a 
corporation  by  the  commonwealth  averring 
that  it  was  exercising  its  franchises  without 

*  Court  of  equity  cannot  decree  forfeiture  of 
charter,  see  note,  S  Am.  St.  Rei*.  200. 

Courts  proceed  with  caution  in  proceedings  .0 
declare  forfeitures  of  corporate  franchises,  see 
note,  8  Am.  St.  Rep.  181. 


authority  of  law,  although  it  did  not  exer- 
cise its  franchises  nor  transact  any  business 
in  Dauphin  county.  Com.  v.  Pennsylvania, 
S.  6-  A^.  E.  R.  Co.,  16  Phila.  {Pa.)  596.— 
Reviewing  Heydon's  Case,  3  Coke  7. 

The  supreme  court  of  Wisconsin  has 
original  jurisdiction  of  an  information  in  the 
nature  of  quo  warranto,  filed  by  the  attorney- 
general  in  behalf  of  the  state,  by  leave  of  the 
court,  to  annul  a  railroad  charter.  State  v. 
West  Wis.  R.  Co.,  34  Wis.  197. 

The  right  of  the  supreme  court  of  Ver- 
mont to  issue  the  writ  of  quo  warranto  is 
recognized  in  general  terms  by  the  statutes 
of  the  state ;  but  the  occasions  are  left  to  be 
determined  by  the  common  law  rules.  By 
those  rules  the  writ  is  the  appropriate  mode 
in  which  to  try  any  alleged  usurpation  of 
offices  or  franchises  inconsistent  wiih  the 
state  sovereignty.  State  v.  Boston,  C.  6^ 
M.  R.  Co.,  25  VI.  433.— Quoting  Lumbard 
V.  Aldrich,  8  N.  H.  31. — Quoted  in  Mc- 
Gregor V.  Erie  R.  Co.,  35  N.  J.  L.  8g.— State 
ex  rel.  v.  Milwaukee,  L.  S.  &•  W.  R.  Co.,  45 
Wis.  579. 

3.  When  it  lies.*— The  charter  of  a 
railroad  company  is  the  law  of  the  contract 
between  the  corporation  and  a  subscriber  to 
its  capital  stock ;  and  any  material  departure 
from  the  points  designated  in  the  charter  for 
the  location  of  the  road  is  a  violation  of  the 
charter,  for  which  the  franchise  of  the  cor- 
poration may  be  seized  upon  quo  warranto, 
unless  the  legislature  has  waived  the  right 
of  the  state  to  seize  the  franchise,  by  acts 
legalizing  the  violation  pf  the  charter. 
Mississippi,  O.  <S-  R.  R.  R.  Co.  v.  Cross,  20 
Ark.  443.— Followed  in  Mississippi,  O.  & 
R.  R.  R.  Co.  V.  Caster,  24  Ark,  96. 

The  state  is  not  estopped  from  maintain- 
ing an  action  to  have  it  determined  that  a 
corporation  never  acquired  the  franchise  to 
build  and  operate  a  street  railroad  within 
the  limits  of  a  municipal  corporation  from 
the  mere  fact  that  in  a  prior  action  brought 
against  tht  corporation  as  such,  in  which 
the  existence  of  the  corporation  was  not 
put  in  issue,  it  obtained  a  judgment  requir- 
ing the  corporation  to  abate  a  portion  of  its 
road  on  the  ground  that  it  was  a  public 
nuisance.  People  ex  rel.  v.  Stanfc  d,  TJ  Cal- 
360. 

The  attorney-general  filed  an  information 
in  chancery  against  two  railway  companies, 


*  Qua  warranto  for  illegal  exercise  of  corpo- 
rate franchise,  see  note,  7  L.  R.  A.  319. 


Ilf. 


1130 


QUO   WARRANTO,  3. 


I']' 


1 1 


to  restrain  them  from  building  and  operating 
their  road  within  a  city,  alleging  various 
grounds  for  tlie  relief  sought.  The  bill,  on 
a  hearing  after  answer,  was  dismissed,  the 
court  in  its  decree  finding  in  favor  of  the 
rights  claimed  by  the  companies.  Held, 
that  such  decree  was  conclusive  upon  the 
people  on  an  application  in  behalf  of  the 
people  to  file  an  information  in  the  nature 
of  a  quo  warranto,  seeking  to  call  in  ques- 
tion the  right  of  one  of  the  same  companies 
to  exercise  the  same  franchises  and  perform 
the  same  acts  as  were  attempted  to  be  en- 
joined in  the  prior  suit.  Attorney-General 
V.  Chicago  &»  E.  R.  Co.,  26  Am.  &r*  Eng.  R,  Cas. 
428,  \\2  III.  520.— Distinguished  in  Chi- 
cago D.  &  C.  Co.  V.  Garrity,  115  111.  155. 
Quoted  in  Hunt  v.  Chicago  &  D.  R.  Co., 
20  111.  App.  282. 

If  a  railroad  company  is  wholly  unable  to 
discharge  the  duties  it  owes  to  the  public, 
and  which  the  law  has  imposed  upon  it,  a 
proceeding  in  the  nature  of  a  quo  warranto 
is  the  proper  remedy,  and  not  mandamus. 
Ohio  &*  Af.  R.  Co.  V.  People  ex  rel.,  30  Am. 
&•  Eng.  R.  Cas.  509,  1 20  ///.  200,  11  N.  E, 
Rep.  347,  9  West.  Rep.  167. 

Where  a  railroad  company  has  a  de  facto 
organization,  the  question  of  whether  it  is 
a  de  jure  corporation  can  only  be  deter- 
mined on  quo  warranto.  It  cannot  be  in- 
quired into  in  a  proceeding  to  condemn 
land.  Brown  v.  Calumet  River  R.  Co.,  125 
///.  600,  15  West.  Rep.  556,  18  N.  E.  Rep. 
283;  ajjirming  37  ///.  App.  113.  —  DIS- 
TINGUISHING South  Chicago  R.  Co.  v.  Dix, 
109  111.  237  ;  Chicago  &  E.  I.  R.  Co.  v. 
Wiltse,  116  111.  449. 

An  information  in  the  nature  of  a  qito 
warranto,  under  Ind.  Code,  §  749,  will  not 
lie  against  a  number  of  persons  incorporated 
as  a  railroad  company,  on  the  grounds  that 
they  do  not  intend  to  construct  the  whole 
of  their  road  according  to  its  description  in 
the  articles  of  associtition,  and  that  they  in- 
tend to  nial<e  use  of  their  organization  for 
the  purpose  of  condemning  and  appropriat- 
ing private  property  over  which  to  construct 
their  railroad.  State  ex  rel.  v.  Kingan,  51 
Ind.  142. 

A  proceeding  by  an  information  in  the 
nature  of  a  quo  warranto  is  authorized  by  2 
Ind.  Rev.  St.  of  1876,  §  749,  clause  3,  "  wtiere 
any  association  or  number  of  persons  shall 
act  within  this  slate  as  a  corporation,  with- 
out being  legally  incorporated."  Lawrence 
County  Com'rs  v.  Hall,  70  Ind.  469. 


The  fact  that  a  street-railway  company 
has  constructed  and  is  operating  its  road, 
within  the  term  of  its  corporate  life,  \\\mn  a 
township  highway,  without  objection  from 
the  township  or  any  of  its  inhabitants, 
under  and  in  full  compliance  with  a  per- 
petual grant  of  the  right  so  to  do,  made  by 
the  township  under  How.  Mich.  St.,  §  3548, 
does  not  establish  a  case  of  such  public  in- 
terest as  to  justify  the  institution  of  a  pro- 
ceeding by  quo  warranto  against  the  com- 
pany to  test  the  validity  of  such  grain. 
Attorney-General  v.  Detroit  Suburban  R 
Co.,  96  Mich.  65.  55  .^V.  W.  Rep.  562.— 
Quoting  People  ex  rel.  v.  Mutual  Gas  Light 
Co.,  38  Mich.  154;  People  ex  rel.  v.  Ft, 
Wayne  &  E.  R.  Co.,  92  Mich.  522. 

Where  the  legislature  reserves  the  right 
to  repeal  a  charter  to  a  limited  extent,  leav- 
ing power  to  the  corporation  to  wind  up  its 
affairs,  the  right  to  proceed  against  it  by 
quo  warranto  is  not  in  any  way  impaired, 
if  the  legislature  fails  to  proceed  under  the 
right  reserved.  Grand  Gulf  R.  (S>»  B.  Co.  v. 
State,  iS  Miss.  428. 

A  de  facto  consolidation  of  two  railroad 
companies  having  been  effected  by  the  filing 
of  a  certificate  in  the  secretary  of  state's 
office,  pursuant  to  N.  J.  Act  1881,  p.  222, 
and  an  organization  of  a  new  company 
thereunder  having  been  made,  and  consid- 
erable money  expended  in  the  construction 
of  the  railroads  included  in  the  consolida- 
tion— held,  that  the  holder  of  income  bonds 
of  one  of  the  companies  could  not  have  an 
information  in  the  nature  Of  a  quo  warranto 
to  determine  the  validity  of  the  consolida- 
tion. Terhune  v.  Potts,  23  Am.  &*  Eng.  R. 
Cas.  754,  47  A'.  /.  L.  218. 

An  action  in  the  nature  of  a  quowarranto 
will  not  lie  to  oust  an  individual  from  the 
office  of  secretary  and  treasurer  of  a  rail- 
road company,  when  he  holds  his  office  at 
the  will  of  its  directors.  People  v.  Hills,  i 
Lans.  (N.   V.)  202. 

Exemption  from  taxation  is  not  a  fran- 
chise or  corporate  right  or  privilege  within 
the  meaning  of  a  statute  authorizing  the 
institution  of  proceedings  by  quo  warranto 
"  in  case  any  person  shall  usurp,  intrude 
into,  or  unlawfully  hold  *  ♦  *  any  office  or 
franchise,  *  *  *  or  any  incorporation  does 
or  omits  any  act  which  amounts  to  a  sur- 
render or  forfeiture  of  its  rights  and  privi- 
leges as  a  corporation."  International  &• 
G.  N.  R.  Co.  V.  State,  41  Am.  (S«  Eng.  R. 
Cas.  611,  75  Tex.  356,   12  S.  IV.  Rep.  685.- 


QUO  WARRANTO,  4-6. 


1131 


ay  company 
ng  its  road, 
life,  111)011  a 
ection  from 
inhabitants, 
with  a  per- 
do,  made  by 
.  St..  §  3548, 
h  public  in- 
on  of  a  pro- 
st  the  corn- 
such   gr;i:!t. 

Suburban   K 
Kep.    562. — 

ual  Gas  Ligiit 
rel.  V.   Ft. 

122. 

ves  the  right 
extent,  leav- 
o  wind  up  its 
against  it  by 
?ay  impaired, 
ed  under  the 
?.  &*  3.  Co.  V. 

two  railroad 
[1  by  the  filing 
iry  of   state's 

1 88 1,  p.  222, 
lew  company 
e,  and  consid- 
:  construction 
;he  consolida- 
income  bonds 
I  not  have  an 
quo  warranto 
:he  consolida- 
;«.  &*  Eng.  R. 

quo  7varranto 
iual  from  the 
rer  of  a  rail- 
3  his  oflice  at 
tie  V.  Hills,   I 

s  not  a  fran- 
ivilege  within 
thorizing  the 
quo  warranto 
surp,  intrude 
any  office  or 
loratioii  does 
nts  to  a  sur- 
its  and  privi- 
•:rnational  &* 
r.  (S«  Eng.  R, 
'.  Rep.  685.— 


Quoted  in  Sulphur  Springs  &  M  P.  R. 
Co.  V.  St.  Louis,  A.  &  T.  R.  Co.,  2  Tex. 
Civ.  App.  650. 

The  immunity  from  taxation  granted  by 
a  charter,  which  for  good  consideraticjn  de- 
clares that  tiie  railroad  and  otlier  property 
"wiiich  is  now  or  liereafter  may  be  owned 
or  possessed  by  said  company  or  its  suc- 
cessors," is  exempted  from  taxatioii,  ad- 
heres to  property  exempted,  and  cannot  in 
quo  warranto  proceedings  be  declared  for- 
feited for  a  failure  to  exercise  corporate 
privileges.  International  &*'  G,  N.  R.  Co. 
V.  .State,  41  Am.  &*Eng,  R.  Cas.  61 1,  75  Tex. 
356,  12  S.   W.  Rep.  685. 

4.  Who  may  flio  an  iiiforniation.* 
— An  information  in  the  nature  of  a  quo 
warranto,  under  Mass.  St.  of  1852,  ch.  312, 
§  42,  will  not  lie  against  a  railroad  company 
in  behalf  of  a  stockholcler,  merely  because 
the  corporation  issued  stock  below  the  par 
value,  and  began  to  construct  its  road  be- 
fore the  requisite  amount  of  stock  was 
subscribed,  it  not  appearing  that  the  peti- 
tioner's private  right  or  interest  was  thereby 
put  in  hazard.  Hastings  v.  Amherst  &*  B. 
R.  Co.,  9  Cush.  (Mass.)  596. 

A  stranger,  who  has  no  other  interest  in 
a  corporation  except  that  which  is  common 
to  every  citizen,  is  not  entitled  to  a  jud'g- 
ment  of  ouster  in  a  writ  of  quo  warranto. 
Com.  ex  rel.  v.  Philadelphia,  G.  6^  A\  R. 
Co.,  20  Pa.  St.  518.— Following  Murphy 
V.  Farmers'  Bank,  20  Pa.  St.  413. 

Texas  statute  of  1857,  fixing  the  venue  of 
certain  proceedings  against  railroad  com- 
panies, floes  not  prevent  a  district  attorney 
from  filing  an  information  in  the  nature  of 
quo  warranto  to  have  a  railroad  charter  de- 
clared forfeited.  State  v.  Southern  Pac.  R. 
Co.,  24  Tex.  80. 

Persons  injured  by  the  alleged  miscon- 
duct of  a  company  in  specific  instances, 
stated  in  the  information,  need  not  be  joined 
as  plaintiffs  nor  made  relators  in  this  action. 
State  ex  rel.  v.  Milwaukee,  L.  S.  Or'  IV,  R, 
Co.,  45  JVis.  579. 

5.  When  state  or  attorney-general 
must  sue. — An  information  in  the  nature 
of  a  quo  7varranto  against  a  railroad  for 
usurpation  of  authority  must  be  in  the 
name  of  the  people,  under  a  provision  of 
the    111.   constitution    declaring    that    "all 


*  Who  maybe  relator  in  information  in  nature 
of  quo  irarraiito  to  iletermine  validity  of  charter, 
see  note,  23  Am.  &  Eng.  R.  Cas.  757. 


prosecutions  "  shall  run  in  the  name  of  the 
people.  People  ex  rel.  v.  Mississippi  &^  A. 
R.  Co.,  13  ///.  66.— Following  Donnelly  v. 
People,  1 1  III.  552. 

Under  N.  Y.  Code  of  Civ.  Pro.,  §  1798,  it 
is  made  the  dtity  of  the  attorney-general  to 
determine  whether  the  public  interests  will 
be  served  by  instituting  a  suit  to  vacate  a 
charter ;  and  the  court  will  not  dete  ine 
the  merits  of  the  controversy  upon  an  ap- 
peal from  an  order  granting  him  leave  to 
institute  the  proceeding.  In  re  Attorney- 
General,  50  Hun  5 1 1 ,  20  A^  Y.  S.  R.  383,  3 
N.  V.  Supp.  464 ;  affirming  2  A'.  Y.  Supp. 
684, 18  M  Y.  S'.R.  122.— Following  People 
V.  Boston,  H.  T.  &  W.  R.  Co.,  27  Hun  528. 

Where  a  state  declares  through  its  legis- 
lature that  certain  acts  of  a  corporation  shall 
incur  a  forfeiture  of  its  charter,  the  attorney- 
general  m.  proceed  by  quo  warranto  with- 
out more  express  authority.  State  v.  South- 
ern Pac.  R.  Co.,  24  Tex.  80. 

The  right  of  the  attorney-general  to 
sue  a  railway  company  for  breach  of  its 
powers  is  not  taken  away  by  7  &  8  Vict.  c. 
85.  Attorney-General  v.  Great  Northet  n  R. 
Co.,  29  L.J.  Ch.  794,  djur.  N.  S.  1006. 

The  provincial  attorney-general  is  the 
proper  person  to  file  an  information  in  re- 
spect of  a  nuisance  caused  by  interference 
with  a  railway  by  another  corporation. 
Attorney-General  v.  Niagara  Falls  Int. 
Bridge  Co.,  20  Grant's  Ch.  {U.  C.)  34. 

The  provincial  attorney-general,  and  not 
the  attorney-general  of  the  Dominion,  is  the 
proper  party  to  file  an  information  at  the 
relation  of  a  railroad  when  the  complaint  is 
not  of  an  injury  to  property  vested  in  the 
crown  as  representing  the  government  of 
the  Dominion,  but  a  viclrtion  of  the  right  of 
the  public  of  Ontario.  Attorney-General  v. 
Niagara  Falls  Int.  Bridge  Co.,  20  Grant 's 
Ch.  {U.  034. 

6.  Leave  to  sue. — The  court  does  not 
abuse  its  discretion  in  refusing  to  grant  an 
information  in  the  nature  of  a  quo  warranto 
at  the  instance  of  a  stockholder  who  knew 
ot,  and  was  a  party  to,  the  transactions  con- 
nected with  the  organization  of  a  railroad 
which  are  alleged  to  be  illegal.  Cole  v. 
Dyer,  29  Ga.  434. 

Where  the  facts  relied  upon  in  an  answer 
to  a  petition  for  leave  to  file  an  information 
in  the  nature  of  a  quo  warranto  are  dis- 
puted, or  new  and  doubtful  questions  of 
law  are  involved,  requiring  time  for  a  satis- 
factory solution,  it  is  the  duty  of  the  court 


1132 


QUO  WARRANTO,  7,8. 


t 


tf)  make  tlic  rule  for  an  information  abso- 
lute, to  enable  a  full  investij,'ation  ;  otberwisi; 
tlie  court,  on  motion,  may  discliarjje  tlie 
rule  and  dismiss  the  petition.  Attorney' 
Gt'iieral  v.  Chicago  (5->  E.  R.  Co.,  26  ^h/i.  &* 
Eitc;.  li.  Cas.  428,  112  ///.  520. 

Whether  a  private  right  or  interest  in- 
jured or  put  in  hazard  by  the  exercise,  by 
any  private  corporation,  of  a  franchise  or 
privilege  not  conferred  by  law  must  be  a 
right  or  interest  for  an  injury  to  which 
some  remedy  previously  existed  in  law  or 
equity,  in  order  to  authorize  an  application 
to  tills  court  under  Mass.  St.,  1852,  ch.  312, 
^  42,  for  leave  to  file  an  information  in  the 
nature  of  a  guo  ivarraiito,  quart.  Boston 
<S-  /'.  A'.  Corp.  V.  Midland  R.  Co.,  i  Gray 
{Mass.)  340. 

Where  the  matter  complained  of  is  that 
the  lessee  of  a  railroad  has  discontinued  a 
part  of  the  route,  leave  to  file  a  quo  war- 
ranto to  forfeit  the  company's  charter  should 
be  refused,  as  that  would  be  no  redress  of 
the  grievance  complained  of.  (Sherwood,  J., 
dissenting.)  Attorney-General  v.  Erie  6r*  K. 
R.  Co.,  16  Am.  &*  Eng.  R.  Cas.  652,  55  MicA. 
i$.2oN,  W.  Rep.  696. 

When  the  attorney-general,  ex  officio, 
files  an  information  in  the  nature  of  a  quo 
warranto,  no  leave  of  court  is  requisite. 
Attorney-General  V.  Delaware  &*  B.  B.  R, 
Co.,  38 /V./,  L.  282. 

7.  Parties  defeiKlaiit.— In  an  action 
under  the  Code  to  have  it  determined  that 
certain  persons  are  unlawfully  claiming  to 
be  and  are  exercising  the  functions  of  a  pri- 
vate corporation  which  never  had  an  exist- 
ence, the  persons  usurping  the  franchise 
are  the  only  proper  defendants.  If  th"  cor- 
poration be  made  a  defendant  as  such,  its 
corporate  existence  is  admitted.  People  ex 
rel.  V.  Stanford,  77  Cal.  360. 

In  a  proceeding  by  quo  warranto  against 
a  corporation  to  forfeit  its  franchises  and 
oust  it  from  the  same  for  misuser  thereof, 
the  corpqration  is  the  only  necessary  party 
defendant.  In  case  of  forfeiture  the  court 
will  take  the  necessary  steps  to  protect  the 
rights  of  other  partie"  In  the  premises. 
State  ex  rel.  v.  Atchison  &*  N.  R.  Co.,  32 
Ant.  &>  Eng.  R.  Cas.  388,  24  Neb.  143,  38 
A'.  IV.  Rep.  43. 

Where  the  attorney-general  brings  an 
action  to  vacate  the  charter  of  a  railroad 
company,  and  it  appears  that  a  part  of  its 
road  is  leased,  the  lessee  company,  on  ap- 
plication, is  entitled,  under  N.  Y.  Code  of 


Civ.  Pro.,  §  452,  to  be  made  a  defendant. 
People  v.  Albany  &^  V.  R.  Co.,  77  N.  V. 
232;  reversing  15  Nun  126. — Follow kd  in 
Troy  &  B.  H.  Co.  7'.  Boston,  H.  T.  &  W.  K. 
Co.,  7  Am.  &  Eng.  R.  Cas.  49,  86  N.  Y.  107. 

M.  Tliu  iiitVtriiiatiuii  or  petition.— 
In  an  action  to  enforce  the  forfeiture  of  a 
corporate  franchise  on  account  of  non-user 
and  misuser,  the  complaint  must  specifically 
allege  that  defendant  has  a  legal  existence 
as  a  corporation.  People  ex  rel.  v.  Stan- 
ford, 77  Cal.  360. 

Where  the  alleged  usurpation  of  the 
franchise  is  claimed  to  result  from  the  fact 
that  the  corporation,  having  once  existed, 
has  ceased  to  exist,  it  is  not  sufficient  to 
allege  in  the  complaint  that  it  has  ceased 
to  exist,  but  the  facts  showing  the  termina- 
tion of  its  existence  must  be  set  forth. 
People  ex  rel.  v.  Stanford,  77  Cal.  360. 

An  information  under  Ind.  Code,  §  749, 
against  a  number  of  persons  who  claim  to 
be,  but  are  not  legally,  an  incorporated 
company,  must  state  that  they  have  acted 
within  this  state  as  a  corporation.  State  ex 
rel.  v.  Kingan,  51  Ind.  142. 

Where  an  information  in  the  nature  of  a 
quo  warranto  against  the  incorporators  of 
a  railroad  company  sets  out  several  alleged 
illegal  acts  in  the  same  paragraph,  these 
several  acts  must  be  construed,  not  as  sepa- 
rate paragraphs,  but  as  parts  of  one  para- 
graph ;  and  if  the  allegations  contradict 
each  other  as  to  material  facts,  the  para- 
graph is  bad.  State  ex  rel.  v.  Foulkes,  20 
Am.  (5>»  Ettg.  R.  Cas.  538,  94  Ind.  493. 

So  long  as  the  charter  of  a  company  con- 
tinues in  existence,  its  property  cannot  be 
taken  from  it  upon  the  allegation  that  it 
was  acquired  by  abuse  of  its  chartered  priv- 
ileges. Hamilton  v.  Annapolis  6»  E,  R.  R. 
Co.,  I  Md.  Ch.  107. 

In  an  information  in  the  nature  of  a  quo 
warranto,  it  is  not  necessary  to  set  forth 
the  franchises  and  privileges  alleged  to  be 
usurped,  except  in  general  terms.  It  is  al- 
ways the  right  of  the  government  to  call 
upon  those  who  assume  corporate  powers 
to  show  by  what  warrant  they  do  so;  and 
when  the  defendant  sets  forth  its  claim  by 
plea,  the  attorney-general  may  reply  and 
show,  the  special  grounds  he  relies  on. 
People  V.  River  Raisin  &=  L.  E.  R.  Co.,  12 
Mich.  389.— Applying  People  v.  Bank  of 
Niagara,  6  Cow.  (N.  Y.)  196 ;  People  v.  Bank 
of  Hudson,  6  Cow,  217;  People  v.  Utica 
Ins.  Co.,  15  Johns.  (N.  Y.)  358 


defendant. 

M.,  77  N.  v. 

OLLOWKD  IN 

T.  &  VV.  K. 
86  N.  Y.  107. 
Iiutition.— 

irffiture  of  a 
of  iion-iiser 
St  specifically 
gal  existence 
re/.  V.  Stan- 

ition  of  the 
from  the  fact 
once  existed, 
sufficient  to 
it  has  ceased 

the  termina- 
be  set  forth. 
7ai.  360. 

Code,  §  749. 
who  claim  to 

incorporated 
ey  have  acted 
ion.    S/aU  ex 

he  nature  of  a 
corporators  of 
several  alleged 
agraph,  these 
d,  not  as  sepa- 
i  of  one  para- 
)ns  contradict 
lets,  the  para- 
V.  Foulkes,  20 
^nd.  493. 
company  con- 
irty  cannot  be 
igation  that  it 
hartered  priv- 
lis  6-  E.  R.  R. 

ature  of  a  quo 
yr  to  set  forth 

alleged  to  be 
:rms.  It  is  al- 
nment  to  call 
porate  powers 
ey  do  so;  and 
h  its  claim  by 
nay  reply  and 
he   relies    on. 

E.  R.  Co.,  12 
lie  V.  Bank  of 
Peoples.  Bank 
:ople  V.  Utica 
8 


QUO   WARRANTO,  O. 


1133 


Where  it  is  sought  to  have  a  railroad 
charter  forfeited  on  the  ground  that  the 
state  made  a  loan  to  the  company  to  aid  in 
the  construction  of  its  road  which  was  not 
so  used,  the  information  should  set  out  spe- 
cifically the  misappropriation.  It  is  not 
sutficient  to  stale  generally  that  there  has 
been  a  misappropriation,  which  is  more  (jf 
an  opinion  than  a  fact,  while  the  facts 
constituting  the  misappropriation  are  kept 
back.  Harris  v.  Mississippi  V.  &•  S.  I.  R. 
Co.,  51  Miss.  602. 

The  attorney-general,  in  behalf  of  the 
people,  cannot  allege  that  an  act  of  incor- 
poration granted  by  the  state  is  contrary  to 
the  United  States  constitution  and  acts  of 
congress.  People  v.  Rensselaer  6-  S.  R.  Co., 
15  Wend.  {N.  F.)  113. 

An  information  to  have  the  charter  of  a 
corporation  declared  forfeited  must  set 
forth  a  substantial  cause  of  forfeiture.  Ai- 
torney-General  v.  Petersburg  &^  /%.  R.  Co.,  6 
/red.  {N.  Car.)  456. 

An  information  in  the  nature  of  a  quo 
warranto,  filed  in  Wisconsin,  showed  that 
the  principal  office  of  defendant  company 
was  in  the  city  of  New  York,  where  its 
books  and  records  had  always  been  kept, 
and  that  none  of  its  principal  officers  resided 
in  Wisconsin,  so  that,  under  the  laws  of  that 
state,  it  would  be  impossible  to  enfo.rce  an 
attachment  against  the  shares  of  stock. 
Held,  to  show  a  sufficient  ground  for  a  for- 
feiture of  the  company's  charter.  State  ex 
rel.  V.  Milwaukee,  L.  S.  &*  W.  R.  Co.,  45 
IVis.  579.— Quoting  Marshall  v.  Baltimore 
&  O.  R.  Co.,  16  How.  (U.  S.)  314 ;  Land  Grant 
R.  &  T.  Co.  z/.  Coffey  County  Com'rs,  6  Kan. 
245 ;  Thorn  v.  Central  R.  Co.,  26  N.  J.  L. 
121  ;  Baltimore  &  O.  R.  Co.  v.  Harris,  12 
Wall.  (U.  S.)  65.  Reviewing  Louisville,  C. 
&  C.  R.  Co.  V.  Letson,  2  How.  497. 

The  several  particulars  of  defendant's 
abuse  of  its  franchises  alleged  in  the  in- 
formation (its  having  its  principal  office  in 
another  state,  its  keeping  its  records  there, 
and  the  fact  that  its  officers  reside  there)  are 
not  distinct  causes  of  action  ;  but  even  the 
joinder  of  distinct  grounds  of  forfeiture  in 
Such  an  information  would  not  be  demurra- 
ble. State  ex  rel.  v.  Milwaukee,  L.  S,  &* 
IV.  R.  a».,4S  Wis.  S79. 

A  count  in  a  petition  alleging,  as  ground 
of  forfeiture  of  the  charter,  a  sale  of  the 
road  under  a  deed  of  trust,  to  secure  the 
payment  of  its  debts,  is  insufficient  if  it  does 
not  show  that  the  company  executed  the 


deed  of  trust  in  any  manner  binding  on 
them,  or  what  were  the  terms  of  the  deed. 
State  v.  Sout/urn  Pac.  R.  Co.,  24  Tex.  80. 

Where  a  petition  seekin;,'  to  have  a  corpo- 
rate franchise  declared  forfeited  is  filed  in 
the  name  of  a  state,  it  should  set  forth  spe- 
cifically the  facts  and  data  upon  which  it  is 
founded.  State  v.  Southern  Pac.  R.  Co.,  24 
Tex.  80. 

O.  Matters  of  <lcf<>iiMC  and  liow 
plcarti'd.— The  response  to  a  writ  of  quo 
warranto  against  a  corporation  properly 
recites  the  several  acts  of  the  legislature 
constituting  defendants  a  corporation.  State 
v.  Mississippi.  O.  &•  R.  R.  R.  Co.,  20  Ark. 

495. 

An  answer  which  denies  that  the  individ- 
ual defendants  are  claiming  or  exercising 
the  corporate  franchise  states  a  complete 
defense  as  to  them.  People  ex  rel.  v.  Stan- 
ford, 77  Cal.  360. 

Certain  named  persons,  and  others  said 
to  be  too  numerous  to  be  brought  upon 
the  record,  were  charged  with  usurping  the 
franchise  of  being  a  railroad  corporation. 
The  defendants  named  pleaded  tliat  they 
were  the  directors  of  the  corporation,  with- 
out denying  that  they  were  corporators,  and 
averred  the  legal  existence  of  the  corpora- 
tion. Held,  that  in  the  absence  of  allega- 
tions or  proof  to  the  contrary,  defendants 
were  to  be  regarded  as  claiming  to  be  mem- 
bers of  the  corporation.  State  v,  Sherman, 
22  Ohio  St.  411. 

In  a  proceeding  in  the  name  of  the  com- 
monwealth against  a  company  for  a  viola- 
tion of  its  charter  in  the  wrongful  location 
of  its  road,  the  court  will  not  consider  the 
fact  that  the  authorities  of  a  city,  and  the 
people  of  the  neighborhood,  induced  the 
company  so  to  locate  the  road  and  expend 
large  sums  in  building  it.  Com.  v.  Erie  &* 
N.  E.  R.  Co.,  27  Pa.  St.  339.— Reviewed 
IN  Re  Bronson,  i  Ont.  415. 

A  plea  to  a  quo  warranto  involving  the 
existence  of  a  corporation  that  had  organ- 
ized under  a  charter  purchased  at  a  judicial 
sale  need  not  set  forth  the  names  of  the 
persons  for  whom  the  purchase  was  made, 
nor  the  amount  of  the  capital  stock,  and 
the  amount  held  by  each  stockIir>der.  Com. 
V.  Central  Pass.  R.  Co.,  52  Pa.  St.  506. 

The  commonwealth  filed  an  information 
against    several   defendants    to  inquire  by 
what  right  they  claimed  to  be  a  corporation. 
A  plea  was  filed  setting  out  that  one  of  de 
fendants  had  bought  certain  corporate  prop- 


i?fj 


1134 


QUO   WARRANTO,  10-12. 


;  iV 


'$'1 


I     : 


'k. 


Mr 


crty  and  a  franchise,  l)y  wliich  he  became  a 
C(ji|i(ji'ati()n,  and  that  lie  organized  liie 'de- 
fendant cornpaiiy.  JMii,  that  llie  pica  was 
good ;  tliat  it.  mattered  not  wlietiier  the  in- 
dividual purchaser  hecanic  a  corjioration,  or 
acted  in  the  purchase  as  the  agent  of  the 
stockholders  of  the  company  subsequently 
formed.  Com.  v.  Central  /'ass.  A'.  Co.,  52 
y'li.  S/.  506. 

In  a  yuo  warranto  at  the  suit  of  the  state 
against  a  company  formed  by  consolidation 
under  the  laws  of  Pennsylvania,  "  nul  tiel 
record"  is  well  replied  to  a  plea  that  the 
company  became  a  corporation  by  contract 
of  consolidation.  Com.  ex  rel.  v.  Atlantic  &* 
G.  ir.  A'.  Co.,  53 /'<!.  .SV.  9.— Kkvikwku  in 
Black  7>.  Delaware  &  K.  Canal  Co.,  22  N.  J. 
Eq.  130. 

Where  an  action  is  instituted  to  forfeit  a 
charter,  the  defendant  should  be  allowed  to 
plead,  by  way  of  supplemental  answer,  a 
law  passed  after  issue  was  joined,  and  cer- 
tain proceedings  of  the  railroad  commis- 
sioners thereunder,  which,  it  is  claimed, 
amount  to  a  waiver  of  the  forfeiture. 
J'eo^le  V.  Ulster  •Sr'  D.  A\  Co.,  28  N.  Y.  S. 
A\  19,  54  Nun  639,  5  S/lv.  Sup.  Ct.  32,  8  N. 
V.  Supp.  149. 

10.  Jury  trial.— An  action  in  the  na- 
ture of  a  quo  warranto,  brought  by  the  at- 
torney-general in  the  name  of  the  people 
under  N.  Y.  Code,  §§  432,  440,  to  try  the 
title  to  a  corporate  ufTice  to  which  there  are 
several  claimants,  is  one  of  legal,  not  equi- 
table, cognizance,  and  the  issues  therein  are 
strictly  legal  ones.  People  v.  Albany  &>  S. 
R.  Co.,  57  N.  V.  161,  6  Am.  Ay.  /iV/.  73; 
reversing  55  Barl).  344,  2  Lans.  4j;,  7  Abb. 
Pr.  N.  S.  265,  5  Lans.  25,  i  Lans.  308,  38 
Ho7v.  Pr.  228,  57  Barb.  204,  8  Abb.  Pr.  N. 
S.  122,  39  How.  Pr.  49. 

The  trial  of  such  issues  by  a  jury  is,  there- 
fore, the  constitutional  right  of  the  parties. 
If  other  equitable  causes  of  action  are  united, 
all  must  be  tried  by  a  jury,  unless  a  jury 
trial  is  waived.  People  v.  Albany  &*  S.  li. 
Co.,  57  A^.  V.  161,6  Am.  Ry.  Rep.  73;  re- 
versing 55  Barb.  344,  2  Lans.  459,  7  Abb. 
Pr.  N.  S.  265,  5  Lans.  25,  i  Lans.  308,  38 
How.  Pr.  228,  57  Barb.  204,  8  Adb.  Pr.  A\ 
S.  122,  ■},:)  Ho7v.  Pr.  49. 

11.  Evidence.— An  information  filed 
under  the  revised  statutes  against  a  corpo- 
ration by  its  corporate  name  admits  the  ex- 
istence of  the  corporation,  or  that  it  once 
had  a  legal  existence.  People  v.  Rensselaer 
&*  S.  R.  Co.,  IS  Wend.  (N.Y.)  113. 


In  a  suit  to  forfeit  the  charter  of  a  com- 
pany which  was  chartered  before  the  adop- 
tion of  the  present  constitution,  when  the 
answer  admits  that  the  ci>r|)oration  is  "sub- 
ject to  thd  constitution  ami  general  laws 
now  in  force,"  it  is  unnecessary  for  the 
state  to  prove  that  the  company  had  taken 
the  benefit  of  legislation  subsequent  to  the 
adoption  of  the  constitution,  and  tlius  be- 
came subject  to  all  its  provisions  East 
Line  is-*  A'.  R.  R.  Co.  v.  State,  40  Am.  &^  I'.ng. 
R.  Crtj.  574,  75  Tex.  434,  12  5.  W.  Rep.  690. 

12.  Jii(l{;iiieiit  or  decree.- In  an  ac- 
tion to  have  it  determined  that  certidn  per- 
sons are  unlawfully  claiming  to  be,  and  are 
exercising  the  functions  of,  a  private  cor- 
poration which  never  had  an  existence,  a 
judgment  decreeing  that  plaintilT  recover 
the  powers  and  franchise  exercised  am'. 
claimed  by  defendants,  and  enjoining  them 
from  exercising  the  same,  will  be  reversed, 
where  the  question  f)f  the  non-existence  of 
the  corporation  is  left  wholly  undetermined. 
People  ex  rel.  v.  Stanford,  TJ  Cal.  360. 

A  judgment  finding  that  persons  claiming 
to  be  directors  of  a  railway  company  were 
not  legally  elected,  and  ousting  them  from 
such  oflice,  is  conclusive  on  defendants. 
Waterman  v.  Chicago  &*  I.  R.  Co.,  139  ///. 
658.  29  A^.  E.  Rep.  689. 

In  a  direct  proceeding  by  the  state 
against  individuals  who  assume  to  act  as  a 
railroad  corporation,  requiring  them  to  show 
cause  for  so  acting,  a  showing  by  the  de- 
fendants of  the  filing  of  articles  of  associa- 
tion and  a  subscription  of  the  minimum 
amount  of  stock  required  by  law  is  not 
conclusive  upon  the  state.  Where  it  is 
established  that  the  subscribers  to  a  large 
part  of  the  stock  are  insolvent,  and  were  so 
at  the  time  they  subscribed,  with  no  expec- 
tation of  ability  to  pay,  a  forfeiture  will  be 
declared.  Holman  v.  State  ex  rel.,  24  Am. 
&*  Eng.  R.  Cas.  6,  105  Ind.  569,  S  A^.  /:.  Rep. 
702. 

Under  Pa.  Act  of  April  8,  1861,  providing 
for  judicial  sales  of  corporate  property  and 
franchises,  the  purchasers  become,  by  opera- 
tion of  law,  a  corporation  ;  therefore,  in  a 
qtto  warranto  by  the  state,  it  is  error  to  de- 
cree that  the  franchise  has  no  existence. 
Com.  v.  Central  Pass.  R.  Co.,  52  Pa.  St.  506. 

Sayles'  Tex.  Civ.  St.,  art.  4098/,  §§  1,6,  in 
proceedings  by  the  state  against  a  corpora- 
tion, upon  the  court  finding  that  the  corpo- 
ration has  been  guilty  of  acts  which  require 
a  forfeiture  of  its  privileges  as  a  corpora- 


RACE    TRACK— RAILWAY   COMMISSIONKRS,   1. 


H35 


er  of  a  com- 
)re  the  adop- 
i)n,  when  tl)c 
itioti  is  "siib- 

(^eiicral  laws 
ssary  for  tlie 
ny  had  taken 
iquL'iit  to  tlie 
u\(\  tlius  l)e- 
isions      Juis/ 

II'.  Rep.  6yo. 

e.— Ill  an  ac- 
rcrtJiiii  |)L'r- 

)  be,  and  are 
private  cor- 
cxistencc,  a 

ntifT  recover 
xcrcised  ami 
ijoining  them 
I  be  reversed, 
i-existence  of 
indetermined. 

://.  360. 

■sons  claiming 
:ompany  were 
ig  them  from 
\  defendants. 
?.  Co.,  139  ///. 

by  the  state 
ne  to  act  as  a 
them  to  show 
ig  by  the  de- 
les of  associa- 
hc  minimum 
y  law  is  not 
Where  it  is 
rs  to  a  large 
;,  and  were  so 
ith  no  expec- 
eiture  will  be 
■■  rel.,  24  Am. 
.  S  JV.  K.  Rep. 

61,  providing 
property  and 
me,  by  opera- 
lerefore,  in  a 
i  error  to  de- 
lo  existence. 
2  Pa.  St.  506. 
>8/.  §§  1.6.  in 
ist  a  corpora- 
at  the  corpo- 
^hich  require 
s  a  corpora- 


tion, requires  that  "a  judgment  of  ouster  enter  any  order  necessary  to  give  e fleet  to 

from  the  franchise  shall  l)e  entered  and  that  the    general    judgment    required    in    such 

costs  shall  be   adjudged."     This  does    not  cases.     Texas  Trunk  A'.  Co.  v,  StaU,%i  Tex. 

deprive  the  district  court  of  the  power  to  i,  18  S,  IV,  Kep.  199. 

R 

RACE  TRACK.  HI.  POWERS  AND  DUTIXB 1 137 

Injury  to,  as  an  element  of  land  damages,  see  '  •  Generally 1137 

Eminent  DoMAi.N.  710.  2.    To  lix  Rads  1139 

3.   To    Ret^ii/itte   Depots,    Side 

RAILS.  Tracks,  etc 1 143 

Admissibility  of  evidence  as  to  spreading  of,  ^-  T'"  /'"'X;"/"/^  H,);hways  and 

see  EvinKN(  K,  \H\.  hailway  Crossings 1144 

of  breaking  of,  see  Evu    nck,  l>'Jt.  S-  Conclusiveness  of  Their  De- 

Contributory  negligence  in  catching  foot  be-  cisions 1 146 

tween,  see  EMi-i.cjvfis,  Injuries  to,  4  «  1.  6-  HfU'edy  to  Enforce  Orders  .   1 149 

Duty  to   employes  as  to  safety  of,  sw  i-.m-  7-  Interstate  Freii^hts 11 51 

I'l.ovfes,  Injuries  to,  52,  8.  Suits  against   Commission- 
Vox  street  railways,  patents  for,  see  Patents                             ers 1 1 52 

KOR  Inventions,  XVA.  IV.  COMPENSATION 1 153 

Lien  for  price  of.  slo  Liens,  4. 

Machinery  for  making  or  mending,  patents  I-   ^^^ITS  CEEATINO  -  CONSTITUTIONALITY 

for,  see  Patents  for  Inventions,  43.  **'"• 

1.   Ill  general.— A   state  has  general 

RAILWAY  AID  BONDS.  power  to   regulate  the   fares  and   freights 

See  Municipal  anu  Local  Aid.  ^^''"'^h  may  be  charged  and  received  by  rail- 

roads  within  the  state,  and  to  create  a  com- 

RAILWAT  AND    CANAL  TRAFFIC  mission  and  delegate  to  it  authority  to  pre- 

•  pin  scribe  reasonable  rates  and  regulations  for 

the  management  of  such  roads.     Reagan  v. 

Carriage  of  passengers  under  provisions  of.  Farmers'  L.  <S-  T,  Co.,  58  Am.  <S-  Eng.  R. 

see  Carriacf.  OF  Passengers,  n23.  Cas.  670,  154  I/.  S.   362.   14  Sup.  Ct.   Rep. 

Liability  of  carrier  of   merchandise    under  ._ 

provisior    of,  see  Carriage  of  Merchan-  ^i ,^  :„:„„  :„  i„„,„  d„:i 1  /'„ 

r«>t»  -'lo  v\\^  provision  in  Iowa  Railroad  tommis- 
.  .,     ^        .  —  .^^  ^^^  ^j^,^^  car-load  lots  shall  be  trans- 
Passengers    fares  under  provisions  of,   see  ,         ,     ■  ,      ^      ,      ,■            ,        .           .  , 
T.,.^,...,.c  .».,   IT.,.,      i'lu  ferred  Without  unloading,  unless  done with- 

1  ICKEl  S  AM)  r  ARKS,    IftO.  i            ,   •                                      •                , 

Powers  and  duties  of  commissioners  under.  ""^  ^''^''g^  *°  ^\^  ^'''PP"  ""'   ^^^^^^^^  of 

see  Railway  Commissioners,  «.  such  shipments,  being  in  accord  with  the 

Regulation  of  charges  under,  see  Charges,  course  of  business  long  practised  by  railroad 

jj7_128,  companies,  and  it  being  the  duty  of  the 

commissioners  to  aid  railroad  companies  in 

RAILWAY  COMMISSIONERS.  this  matter  by  the  making  and  enforcement 

K  ^t.    -^       t  ^        ^  L,.  L    ^  ,..                o  of   proper   rules   for    compensation  to  the 

Authority  of,  to  establish  stations,  see   St  a-  •      /      .u             e  .C 

I  IONS  AND  DEPOTS,    1  4.  f "'"Pf " '"  ^"J  '^^ ^'^  °^ ,  '}'^   *^^"   '°  ''^T 

Duty  of,  as  regards  flagmen  at  crossings,  see  ferred,  and    for  their   ultimate   return  the 

Crossings,  Injuries,  etc.,  at,  71.  ^"^V  "'"«  imposed  cannot  be  regarded   as 

Of  states,  powers  of,  see   Interstate  Com-  interfering  with  the  constitutional  guaran- 

MERGE,  221.  t'*^^   f*""  ^^^  protection   of  the   rights  and 

Order  of,  to  locate  station,  see  Stations  and  property  of  such  companies.      Burlington, 

Depots,  30.  C.  R.  &^  N.  R.  Co.  v.  Dey,  45  Am.  <S-  Eng. 

Regulation  of  charges  by,  nee  Charges,  14-  R.  Cas.  391,  82  lojva  312,  48  N.  IV.  Rep.  98. 

19.  Mississippi   Statute   of    March    11,    1884, 

Statutes  relating  to  duties  of,  see  Bridges,  creating  a   railroad  commission,  is  not  so 

ETC,  8.  inconsistent  and  uncertain  as  necessarily  to 

I.  LAWS  CREATING  —  CONSTITUTION-  render    the   entire   act   void   on    its    face. 

ALITT  OF 1 135  Stone  v.   Farmers'  L.  6-  T.  Co.,  23  Am.  &* 

U,  APPOINTMENT  AND  BEMOVAL. .  .1136  Eng,  K.  Cas.  577,  1 16  U.  S.  .307,  6  Sup.  Ct. 


1136 


RAILWAY   COMMISSIONERS,  2-4. 


nl 


t 


Rep.  334,  388,  1191.— DiSTiNGUisHlNO  Lou- 
isville &  N.  R.  Co.  V.  Tennessee  R.  Com.,  19 
Fed.  Rep.  679. 

A  lc<;islative  enactment  creating  a  railroad 
commission  and  empowering  it  to  supervise 
railroads  is  not  violative  of  the  fourteenth 
amendment  to  the  constitution  of  the 
United  States,  nor  of  any  provision  of  the 
constitution  of  Mississippi.  Stone  v.  Yazoo 
Sr»  M.  V.  R.  Co.,  21  Am.  &»  Eng.  R.  Cas. 
6,  62  Miss.  607,  52  Am.  Rep.  193. — FoL- 
LOWKU  IN  Stone  v.  Farmers'  L.  &  T.  Co., 
23  Am.  &  Eng.  R.  Cas.  577,  116  U.  S.  307. 

The  legislature  of  Nebraska  has  no  power 
under  the  constitution  to  create  railroad 
commissioners.  The  supervision  of  rail- 
roads by  a  commission  would  be  proper, 
but  the  power  must  be  conferred  on  execu- 
tive officers  already  existing.  In  re  Rail- 
toad  Coin'rs,  20  Am.  &*  Eng.  R.  Cas.  507,  15 
jXed.  679,  50  A^.   IV.  Re^K  276. 

Tennessee  Act  of  March  30,  1883,  attempt- 
ing to  establish  a  railroad  commission,  is 
invalid,  both  because  its  provisions  are  too 
vague  and  indefinite  to  be  enforced,  and 
because  it  leaves  it  to  the  jury  to  say 
whether  a  difference  in  rates  amounts  to 
discrimination,  or  whether  charges  are  un- 
just and  unreasonable.  Louisville  &^  N.  R. 
Co.  V.  Tennessee  R.  Com.,  19  Fed.  Rep.  679. 

2.  Dc]c{ratioii  of  le{;i.slative  pow- 
er.— A  statute  conf'.;rring  on  a  commission 
authority  to  regulate  the  charges  of  railroads 
for  transportation  of  passengers  and  freights 
is  not  a  delegation  of  legislative  power. 
McWhorter  v.  Pensacola  &*  A.  R.  Co.,  37 
Am.  <S-»  Eng.  R.  Cas.  566,  24  Fla.  417,  12 
Am.  St.  Rep.  220.  2  /,.  R.  A.  504,  5  So.  Rep. 
129.  Storrs  V.  Pensacola  (S-  A.  R.  Co.,  29 
Fla.  617.  i\  So.  Rep.  226.— QUOTING  Georgia 
R.  &  B.  Co.  V.  Smith,  128  U.  S.  174;  Chi- 
cago, B.  &  J.  R.  Co.  V.  Iowa,  94  U.  S.  155. 
— Georgia  R.  dr*  B.  Co.  v.  Smith,  9  Am.  &* 
Eng.  R.  Cas.  385,  70  Ga.  694. —  Distin- 
guished IN  Richmond  &  D.  R.  Co.  v. 
Trammel,  53  Fed.  Rep.  196. — Atlantic  Exp. 
Co.  v.  Wilmington  (S-  IV.  R.  Co.,  55  Am. 
&^  Eng.  R.  Cas.  498,  1 11  A^.  Car.  463,  16  5. 
E.  Rep.  393. 

The  authority  given  to  the  Minnesota 
railroad  commission,  by  the  act  of  1887,  ch. 
10,  to  determine  what  are  equal  and  reasona- 
ble rates,  is  not  a  delegation  of  legislative 
power.  State  v.  Chicago,  M.  &•  St.  P.  R. 
Co.,  38  Minn.  281,  37  A^,  IV.  Rep.  782.— 
Quoted  in  State  v.  St.  Paul,  M.  &  M.  R. 
Co.,  40  Minn.  353,  4a  N.  W.  Rep.  21. 


II.  APPOINTMENT  AND  BEZj-OVAL. 

3.  Apiioiiitiiiciit.— The  va.idity  of  the 
appointment  of  one  who  holds  a  commission 
as  commissioner  to  supervise  certain  work, 
under  Mass.  St.,  1856,  ch.  296,  "  to  promote 
the  public  safety  and  convenience,  by  a 
bridge  at  the  intersection  of  the  Boston  and 
Lowell,  the  FitchL'rg,  and  Grand  Junction 
railroads,  in  SoniM ville,"  and  to  apportion 
the  cost  thereof  between  the  Fitchburg 
railroad  company  and  the  Grand  Junction 
railroad  and  depot  company,  in  such  pro- 
portion as  should  by  him  be  deemed  equi- 
table, cannot  be  inquired  into  in  an  action 
brought  under  that  statute  by  the  Fitchburg 
railroad  company  against  the  Grand  Junc- 
tion railroad  and  depot  company  to  re- 
cover a  fair  and  just  proportion  of  the  cost 
incurred  in  doing  the  work.  Fitchburg  R, 
Co.  v.  Grand  Junction  R.  &^  D,  Co. ,  1  Allen 
(Mass.)  552. 

Mass.  St.  of  1869,  ch.  408,  §  5,  vesting  in 
railroad  commissioners  the  powers  and  du- 
ties of  commissioners  appointed  by  the  su- 
preme court  under  the  Gen.  St.  ch.  63,  §117, 
takes  away  the  jurisdiction  of  that  court, 
and  of  commissioners  appointed  by  it,  over 
proceedings  pending  before  those  commis- 
sioners at  the  time  of  its  passage.  JVew 
London  Northern  R.  Co.  v.  Boston  &*  A.  R, 
Co.,  102  Mass.  386. — Reviewing  Springfield 
V.  Connecticut  River  R.Co.,  4  Cush.  63. — 
Quoted  :n  Re  Petition  of  Northampton, 
1 58  Mass.  299. 

4.  Removal. — Under  N.  Y.  Act  of  1859, 
ch.  384,  creating  town  railroad  commission- 
ers, and  declaring  that  the  office  of  any 
commissioficr  shall  become  vacant  if  he 
should  refuse  or  wilfully  neglect  to  perform 
hisduties,  and  authorizing  the  county  judge 
to  appoint  some  one  else  to  fill  the  vacancy, 
a  new  appointment  should  only  be  made  in 
case  the  'Commissioner  is  guilty  of  non- 
feasance. People  ex  rel.  v.  Burnside,  3  Lans. 
(A'.  K.)  74.  People  ex  rel.  v.  Eddy,  3  Lans. 
(N.  r.)  80,  57  Barb.  593. 

So  where  the  county  judge  declares  the 
office  vacant  because  the  commissioner  has 
sold  railroad  stock  of  his  town  on 'a  credit 
when  he  should  have  sold  for  cash,  there 
is  no  nonfeasance,  and  the  order  of  the 
judge  is  unauthorized.  People  ex  rel.  v. 
Burnside,  3  Lans.  (N.  V.)  74. 

But  where  the  county  judge  finds  that 
such  commissioner  has  refused  and  wilfully 
neglected  to  sell  for  cash,  and  hiw  disposed 


RAILWAY  COMMISSIONERS,  6,  6. 


1137 


BEtOVAL. 

va.idity  of  the 
a  commission 
certain  worlc, 
'*  to  promote 
enicnce,    by   a 
tlie  Boston  and 
rand  Junction 
to  apportion 
the    Fitchburg 
Jrand  Junction 
r,  in  such  pro- 
e  deemed  equi- 
to  in  an  action 
the  Fitchburg 
e  Grand  Junc- 
impany  to   re- 
ion  of  the  cost 
Fitchburg  R. 
D.  Co.,  I  Allen 

§  5,  vesting  in 
powers  and  du- 
ited  by  the  su- 
St.  ch.63.  §117, 

of  that  court, 
nted  by  it,  over 

those  commis- 

passage.     New 

Boston  <S-  A.  R. 

ING  Springfield 

'.,  4  Cush.  63. — 

Northampton, 

Y.  Act  of  1859, 
id  commission- 
:  office  of  any 
vacant  if  he 
lect  to  perform 
le  county  judge 
ill  the  vacancy, 
nly  be  made  in 
guilty  of  non- 
rnside,  3  Lam. 

Eddy,  3  Lans. 

e  declares  the 
iimissioner  has 
wn  on 'a  credit 
or  cash,  there 
order  of  the 
*ple  ex  rel.  v. 

Ige  finds  that 
:d  and  wilfully 
\  has  disposed 


of  the  stock  on  a  credit,  there  is  something 
more  than  an  error  of  judgment,  and  his  or- 
der in  removing  the  commissioner  should 
be  aflirmed.  People  ex  rel.  v.  Eddy,  3  Lans. 
(iV.  K)  80,  57  Barb.  593. 

Where  an  application  (or  the  removal  of 
such  commissioner  is  dismissed,  it  is  no  bar 
to  its  renewal  where  there  was  in  fact  no 
ground  for  its  dismissal.  People  ex  rel.  v. 
Eddy,  3  Lans.  (TV.  Y.)  80,  57  Barb.  593. 

III.  POWERS  AND  DUTIES. 

I .   Generally. 

6.  In  United  States.*— Cal.  Const., 
art.  12,  §  22,  providing  for  a  railroad  com- 
mission, to  control  "  railroad  corporations 
and  transportation  companies,"  extends  to 
all  persons  engaged  in  transportation, 
whether  they  act  as  a  corporation,  joint 
stock  company,  partnership,  or  individuals. 
Moran  v.  Ross,  39  Am.  &^  Eng.  R.  Cas.  i ,  79 
Cal.  159,  21  Pac.  Rep.  547.— Distinguish- 
ing Mahoney  v.  Spring  Valley  Water  Works 
Co.,  52  Cal.  161 ;  Southern  Pac.  R.  Co.  v. 
Raymond,  53  Cal.  223. 

Under  the  Iowa  statutes,  the  commission- 
ers may,  without  any  complaint  by  the 
party  aggrieved,  enter  upon  an  investigation 
of  a  subject-matter,  power  over  which  has 
been  conferred  upon  them  by  the  legisla- 
ture;  and  if  a  complaint  before  the  com- 
missioners is  insufficient  on  its  face,  the 
board  may,  before  proceeding  in  the  matter, 
require  the  complainant  to  perfect  the  same, 
or  may  itself  amend  the  complaint  if  cog- 
nizant of  the  facts  necessary  to  present  a 
proper  case.  State  v.  Chicago,  M.  &^  St.  P. 
R.  Co.,  55  A/n.  &>  Eng.  R.  Cas.  487,  86  /owa 
641.53  A^-    IV.  Rep.  323. 

The  jurisdiction  of  the  railroad  commis- 
sioners" being  given  by  statute,  and  the  peti- 
tion presented  to  them  being  the  foundation 
of  their  action,  they  obtain  jurisdiction  only 
when  the  petition  presents  a  case  within  the 
provisions  of  the  statute.  Spofford  v.  Bucks- 
port  &•  B.  R.  Co.,  66  Me.  26. 

Railroad  commissioners  have  authority, 
on  the  petition  of  railroad  companies,  to 
condemn  .and  for  the  specific  purposes  men- 
tioned in  the  statute  only,  and  not  for  the 
general  purposes  of  the  corporation,  and 
their  certificate  should  state  the  special 
purposes   for    which   such  land  is  needed. 

*  State  railway  commissions,  power  and  juris- 
diction of,  see  notes,  2  L.  R.  A.  195  ;  9  Id.  755. 

f)  D.  R.  D.— ,-:? 


Neal  V.  Railroad  Com'rs,  85  Me.  62,  26  Atl. 
Rep.  994.— Following  Spoflford  v.  Bucks- 
port  &  B.  R.  Co.,  66  Me.  26. 

Where  railroad  commissioners  act  judi- 
cially, as  in  distributing  stock,  all  must  be 
present,  though  a  majo'rity  may  decide. 
Otherwise,  where  they  act  ministerially,  as 
in  taking  subscriptions  to  stock.  Crocker  v. 
Crane,  ix   Wend.  (N.   K)2ii. 

A  power  conferred  by  the  legislature  upon 
a  board  of  commissioners,  required  to  be 
exercised  with  reference  to  the  affairs  of 
certain  corporations,  will  not  be  extended 
by  implication  ;  and  the  acts  which  the 
board  attempts  to  do  under  the  power  will 
not  be  upheld,  unless  the  authority  to  do 
them  is  affirmatively  shown  to  be  included 
in  it.  Railroad  Cotn'rs  v.  Oregon  R.  &•  N. 
Co.,  35  Am,  &^  Eng.  R.  Cas.  542,  17  Oreg. 
65,  19  Pac.  Rep.  702,  2  L.  R.  A.  195. 

Congress  cannot  empower  a  commission 
to  investigate  the  private  affairs,  books,  and 
papers  of  the  officers  and  employes  of  cor- 
porations indebted  to  the  government  as 
to  their  relations  to  other  companies  with 
which  such  corporations  have  had  dealings, 
except  so  far  as  such  officers  and  employes 
are  willing  to  submit  the  same  for  inspec- 
tion ;  and  the  investigation  of  the  Pacific 
railway  commission  into  the  affairs  of  ofl[i- 
cers  and  employes  of  the  Pacific  railway 
companies,  under  the  act  of  March  3,  1887, 
is  limited  to  that  extent.  In  re  Pacific  R. 
Com.,  31  Am.  &>  Eng.  R.  Cas.  598,  12  Sawy. 
{U.  S.)  559,  32  Fed.  Rep.  241. 

6.  In  Enj^land.  —  The  railway  com- 
missioners will  entertain  an  application  in 
a  matter  within  their  jurisdiction,  notwith- 
standing that  a  suit  directed  to  the  same 
end  is  in  litigation  in  the  ordinary  courts. 
Portpatrick  R.  Co.  v.  Caledonian  R.  Co.,  3 
Ry.  &'  C.  T.  Cas.  189. 

The  commissioners  will  not  make  an  or- 
der on  a  complaint  of  diversion  of  traffic 
where  the  number  of  instances  of  diversion 
is  so  small,  in  proportion  to  the  amount  of 
traflSc  not  diverted,  as  to  show  that  the 
traffic  was  miscarried  merely  by  inadver- 
tence or  mistake.  Hammans  v.  Great 
Western  R.  Co.,  4  Ry.  6-  C.  T.  Cas.  181. 

And  they  will  not  rehear  a  matter  when 
they  are  asked  to  review,  rescind,  or  vary 
an  order  as  to  costs  by  a  party  who  does 
not  desire  to  disturb  their  judgment  on  the 
merits.  Hammans  v.  Great  Western  R.  Co., 
4  Ry.  &'  C.  T.  Cas.  181. 

On  the  hearingof  an  application  underthe 


1138 


RAILWAY  COMMISSIONERS,  6. 


Regulation  of  Railways  Act,  1873  (36  &  37 
Vict.  c.  48),  §  15,  the  commissioners  have 
power  to  state  a  special  case  for  the  opinion 
of  the  high  court.  Na/i  v.  London,  B,  &-  S. 
C.  A\  Co.,  22  Am.  6-  Eng.  A'.  Cas.  446,  L.  R. 

xsQ.n.D.  505.53^-  7-.  345. 

The  commissioners  have  no  jurisdiction 
under  the  Regulation  of  Railways  Act,  1873, 
^  28,  to  order  a  defendant,  in  whose  favor 
they  have  decided,  to  pay  costs  to  the  un- 
successful applicant.  Foster  v.  Great  West- 
ern  R.  Co.,  L.  R.  8  Q.  B.  D.  515.  51  L.  J.  Q. 
B.  D,  233,  4  Ry.  (S-*  C.  T.  Cas.  58 ;  reversing 
L.  R.  8  Q.  B.  D.  25,  51  L.J.  Q.  B.  D.  51. 

The  discretion  as  to  costs  given  to  the 
commissioners  under  section  28  is  not  greater 
than  that  given  to  the  high  court  under 
Order  55,  rule  i,  of  the  supreme  court. 
Foster  v.  Great  Western  R.  Co.,  L.  R.  8  Q. 
B.  D.  SI 5,  51  L.  J.  Q.  B.  D.  233,  4  Ry.  <^  C. 
T.  Cas.  58 ;  reversing  L.  R.  8  Q.  B.  D.  25, 
51  Z./.  Q.B.D.si. 

The  commissioners,  in  dismissing  an  ap- 
plication, ordered  defendants  to  pay  half  the 
costs  of  the  applicants,  on  the  ground  that 
defendants  were  responsible  for  the  litiga- 
tion because  they  had  not  given  public 
notice  that  they  had  ceased  to  be  owners  or 
managers  of  a  certain  canal.  Held,  that  the 
commissioners  in  making  such  an  order  had 
exceeded  the  jurisdiction  as  to  costs  given 
to  them  by  section  28  of  the  Regulation  of 
Railways  Act,  1873.  Foster  v.  Great  West' 
ern  R.  Co.,  L.  R.  8  g.  Zf.  A  515,  51  Z.  /.  Q. 
B,  D.  233,  4  Ry.  &*  C.  T.  Cas.  58  ;  reversing 
L.  R.  8  Q.  B.  D.  25,  51  L.  J.  Q.  B.  D.  51. 

Upon  the  argument  of  a  case  stated  by  the 
railway  commissioners  under  section  26  of 
the  Regulation  of  Railways  Act,  1873,  the 
counsel  for  the  party  seeking  to  alter  the 
status  in  quo  has  the  right  to  begin.  Wat- 
kinson  v.  Wrexham,  M.  &»  C.  Q,  R.  Co.,  3 
A'y.&*  C.  T.  Cas.  164. 

The  commissioners  have  no  power  to 
make  an  order  on  two  railway  companies  to 
act  jointly  in  doing  what  neither  company 
has  power  to  do  separately,  and  where  such 
an  order  has  been  made,  a  prohibition  may 
issue  from  the  high  court  of  justice  against 
the  commissioners.  Toomer  v.  London,  C, 
&-  D.  R.  Co.,  3  Ry.  6m  C.  T.  Cas.  79. 

Under  an  agreement  on  the  part  of  two 
respondent  companies  with  the  applicant 
company,  whereby  tiie  former  agreed  to 
operate  and  use  the  road  of  the  latter  as 
soon  as  it  was  completed  and  open  for  traf- 
fic, there  being  a  stipulation  that  all  differ- 


ences between  the  companies  should  be  sub- 
mitted to  arbitration,  a  difference  arising  as 
to  the  proper  completion  of  the  road,  it  was 
held  that  the  commissioners  had  no  juris- 
diction with  respect  to  the  differences,  under 
section  8  of  the  Regulation  of  Railways  Act, 
even  though  this  agreement  was  embodied 
in  the  private  act  passed,  incorporating  the 
applicant  company.  Halesowen  R.  Co.  v. 
Great  Western  R.  Co.,  4  Ry.  &*  C.  T.  Cas. 
224. 

The  Regulation  of  Railways  Act,  1873,  §  8, 
enacts  that  "  where  any  difference  between 
companies  is,  under  the  provisions  of  any 
general  or  special  act,  required  or  authorized 
to  be  referred  to  a.bitration,  such  difference 
shall,  at  the  instance  of  any  company  party 
to  the  difference,  and  with  the  consent  of 
the  commissioners,  be  referred  to  them  for 
their  decision,  in  lieu  of  being  referred  to 
arbitration."  Two  companies  agreed  to  re- 
fer all  differences  that  should  arise  between 
them  respecting  the  purchase  of  the  railway 
of  the  former  by  the  latter  company  to  arbi- 
tration, in  accordance  with  the  Railway 
Companies  Arbitration  Act,  1859.  A  differ- 
ence afterwards  arose  between  them  and  the 
selling  company  applied  to  the  commission- 
ers to  decide  it.  It  was  objected  by  the 
purchasing  ccmipany  that  they  had  no  juris- 
diction, since  the  difference  was  not  required 
or  authorized  to  be  referred  to  arbitration 
under  the  general  or  special  act.  Held, 
that  by  the  companies'  adoption  of  the  act 
of  1859,  the  difference,  when  it  arose,  was 
authorized  by  that  act  to  be  referred  to  arbi- 
tration within  the  meaning  of  the  act  of 
'873,  §  8,  and  therefore  the  commissioners 
had  jurisdiction.  Stokes  Bay  R.  &•  P.  Co.  v. 
London  <S-  S.  W.  R.  Co.,  2  Ry.  <S-  C.  T.  Cas. 

143- 

But  they  have  no  power  to  deal  with  any- 
thing done  by  railway  companies  contrary  to 
the  provisions  of  their  special  acts,  unless  it 
also  contravenes  the  provisions  of  the  gen- 
eral acts  which  the  commissioners  have  to 
carry  out.  Uckfield  Local  Board  v.  London, 
B.  5-  S.  C.  R.  Co.,  2  Ry.  Sm  C.  T.  Cas.  214. 

They  will,  in  their  discretion,  refuse  togive 
an  imperfect  relief  to  applicants  when  there 
is  an  immediate  prospect  of  statutory  pow- 
ers which  will  give  a  better  relief  than  the 
order  the  commissioners  have  jurisdiction  to 
issue.  Swindon,  M.  &*  A.  R.  Co.  v.  Great 
Western  R.  Co.,  4  Ry.  &*  C.  T.  Cas.  173. 

The  commissioners  have  full  powers  of 
allowing  the  proceedings  before  them  to  be 


RAILWAY   COMMISSIONERS,  7-9. 


1139 


I  should  be  sub- 
ence  arising  as 
the  road,  it  was 
s  had  no  juris- 
fferences,  under 
{  Railways  Act, 
.  was  embodied 
:orporating  the 
ywen  Ji.  Co.  v. 
&-  C.  T.  Cas. 

rsAct,  1873.  §8, 
erence  between 
avisions  of  any 
:d  or  authorized 
such  difference 
company  party 
tlie  consent  of 
red  to  them  for 
;ing  referred  to 
es  agreed  to  re- 
d  arise  between 
ie  of  the  railway 
ompany  to  arbi- 
h  the  Railway 
1859.  Adiffer- 
jn  them  and  the 
he  commission- 
objected  by  the 
ley  had  no  juris- 
was  not  required 
d  to  arbitration 
;ial  act.  HM, 
ption  of  the  act 
zn  it  arose,  was 
referred  to  arbi- 
g  of  the  act  of 
!  commissioners 
y  R.&'  P.  Co.  V. 
iy.  &*  C.  T.  Cas. 

.0  deal  with  any- 
inies  contrary  to 
al  acts,  unless  it 
ions  of  the  gen- 
ssioners  have  to 
Board\.  London, 
C.  T.  Cas.  214. 
on,  refuse  to  give 
:ants  when  there 
if  statutory  pow- 
r  relief  than  the 
ve  jurisdiction  to 
.  R.  Co.  V.  Great 
\  T.  Cas.  173. 
e  full  powers  of 
efore  them  to  be 


amende^,  and  will  exercise  such  powers  lib- 
erally, so  as  to  give  effect  to  the  provisions 
of  the  Regulation  of  Railways  Act,  1873, 
Mayor,  etc.,  of  Dover  v.  South  Eastern  R. 
Co.,  I  Ry.  &*  C.  T.  Cas.  349. 

Under  the  Railway  and  Canal  Traffic  Act, 
1854,  the  commissioners  have  jurisdiction  to 
hear  and  determine  complaints  against  a 
company  of  not  affording  reasonable  facili- 
ties for  receiving,  forwarding,  and  delivering 
traffic  at  its  stations,  and  this  jurisdiction 
extends  to  the  ordering  of  such  facilities 
even  if  by  so  doing  there  is  necessitated 
the  making  by  the  company  of  some  struc- 
tural alteration  of  its  stations.  South  East- 
ern R.  Co.  V.  Railway  Com'rs,  L.  R.  6  Q.  B. 
D.  586,  50  L.  J.  Q.  R.  201,  44  L.  T.  203,  45 
/.  y.  388;  reverswjr  L.  R.  5  Q.  B.  D.  217, 
49  L-  J-  Q-  li-  273.  41  L.  T.  760,  28  W.  R. 
464,  44/.  P.  362. 

The  commissioners  have  no  power,  under 
36  &  37  Vict.  c.  48,  to  require  two  compa- 
nies to  act  jointly  in  affording  facilities  to 
each  other,  even  assuming  that  they  have 
jurisdiction  to  require  each  company  sepa- 
rately to  give  facilities  according  to  its 
powers.  Toomer  v.  London,  C.  &•  D.  R.  Co., 
L.  R.  2  Ex.  D.  450,  26  W.  R.  31,  37  L.  T. 
161. 

2.   To  Fix  Rates, 

7.  lu  general.'*' — The  Nebraska  board 
of  transportation  has  authority  to  determine, 
in  the  first  Instance,  what  are  just  and  rea- 
sonable charges  for  services  rendered,  or  to 
be  rendered,  on  railways  in  the  state.  State 
ex  rel.  v.  Fremont,  E,  &•  M.  V.  R.  Co.,  32 
Am.  6-  £'«^'-.  /i'.  Cas.  426,  22  Ned.  313,  35  N. 

IV.  Rep.  118. 

The  power  to  determine  what  is  an  un- 
just rate  and  charge,  and  the  extent  of  the 
same,  and  to  prevent  unjust  discrimination, 
carries  with  it  the  power  to  decide  what  is  a 
just  rate  and  charge,  and  authorizes  the 
board  to  fix  just  and  reasonable  rates  and 
charges.    State  ex  rel.  v.  Fremont,  E.  &•  M. 

V.  R.  Co.,  32  Am.  &•  Eng.  R.  Cas.  426,  22 
Neb.  313.  35  A^.   W.Rep.  118. 

A  provision  in  a  railroad  charter  that  in 
fixing  rates  there  shall  be  no  discrimination 
in  favor  of  any  other  road  does  not  bring 
into  that  charter  rates  fixed  in  other  char- 

♦  Power  of  Nebraska  board  of  transportation 
to   fix   rates,  see  note,  32  Am.  &  Eng.  R.  Cas. 

437. 

Power  of  commissioners  to  fix  charges  on 
TAilroads  crossing  and  recrossing  state  lines,  sec 
55  Am.  &  Eng,  R.  Cas.  547,  absir. 


ters  subsequently  granted,  fixing  maximum 
rates,  so  as  to  exempt,  the  company  from  the 
operation  of  a  state  railroad  commission. 
Stone  v.  New  Orleans  <&>•  A^.  E.  R.  Co.,  23 
Am.  &-  Eng.  R.  Cas.  606,  116  U.  S.  352,  6 
Sup.  Ct.  Rep.  349,  391. 

For  proceedings  not  sufficiently  regular 
and  formal,  and  an  order  not  su(ficieii\ly  ex- 
plicit to  be  made  a  foundation  for  the  re- 
covery of  the  penalties  prescribed  by  Mass. 
Pub.  St.,  ch.  112,  §  194,  on  an  application  to 
fix  rates  on  milk,  see  Littlefield  v.  Fitchburg 
R.  Co.,  158  Mass.  I,  32  N.  E.  Rep.  859. 

To  induce  the  commissioners  to  impose  a 
through  rate  there  must  be  evidence  that  it 
is  required  by  the  public  interest.  Belfast 
C.  R.  Co.  V.  Great  Northern  R.  Co.,  4  Ry.  &• 
C.  T.  Cas.  139. 

The  commissioners  have  jurisdiction  to 
compel  carriers  to  conform  to  every  portion 
of  the  Railway  and  Canal  Traffic  Act,  1854, 
§  2,  and  so  to  conduct  their  business  as  to 
give  to  the  public  all  reasonable  facilities. 
Innes  v.  London,  B.  &*  S.  C.  R.  Co.,  2  Ry.  &* 
C.  T.Cas.  155. 

8.  Regulation  of  fares.— The  regula- 
tions of  the  commissioners  fixing  the  rates 
of  fare  for  passengers  who  obtain  tickets 
from  agents  at  depots,  as  well  as  for  those 
who  do  not,  and  prescribing  the  manner  in 
which  ticket  offices  shall  be  kept  open  before 
and  at  the  arrival  of  trains,  do  not  apply  to 
freight  trains,  but  only  to  regular  passenger 
trains.  Partee  v.  Georgia  R.  Co.,  27  Am.  &* 
Eng.  R.  Cas.  12,  72  Ga.  347. 

O.  Bcgulatiou  of  traffic  over  con- 
necting lines.— An  allegation  to  the  effect 
that  the  rates  fixed  by  the  commissioners 
for  one  road  are  unjust  and  I'n.easonable 
when  compared  with  the  rates  permitted  on 
other  roads  in  the  state  operating  under 
the  same  conditions  does  not  overthrow  the 
reasonableness  or  justice  of  the  rate  com- 
plained of,  as  a  rate  reasonable  and  just  in 
itself  for  one  road  may  not  be  so  for  another, 
though  they  connect  with  each  other. 
Starrs  V.  Pensacola  &*  A.  R.  Co.,  29  Fla.  617, 
1 1  So.  Rep.  226. 

It  is  no  objection  to  an  award  of  commis- 
sioners under  Mass.  Acts  of  1845,  ch.  191. 
and  1857,  ch.  291,  establishing  the  compen- 
sation to  be  paid  by  each  of  two  railroad 
corporations  to  the  other  for  drawing  pas- 
sengers and  freight  over  its  railroad,  that 
the  award  gives  to  either  corporation  differ- 
ent amounts  for  carrying  passengers  and 
to  the  point  of  connection  from  the 


irftu 


freight 


1140 


RAILWAY  COMMISSIONERS,  10-12. 


m 


m 


same  station  upon  its  road,  where  they  are 
to  be  carried  to  different  stations  upon  the 
other  road.  Bos /on  &^  IV.  A'.  Corp.  v. 
Western  K.  Corp.,  14  Gray  {Mass.)  253. 

Commissioners  appointed  to  determine 
the  terms  upon  which  connecting  railroad 
corporations  shall  transport  the  passengers 
and  freight  and  perform  the  business  of 
each  other  cannot,  under  the  above  acts, 
include  in  their  award  any  time  before  the 
filing  of  the  petition  for  their  appointment. 
Bos/on  &^  IV.  A\  Corp.  v.  Western  li.  Corp., 
14  Gray  (Mass.)  253. 

And  it  is  no  objection  to  such  an  order  that 
it  assumes  tlie  number  of  passengers  each 
montl;  holding  different  kinds  of  tickets  to 
be  in  proportion  to  tlie  number  of  the 
ordinary  independent  and  connected  trains; 
or  that  it  makes  the  compensation  to  de- 
pend upon  the  number  of  passengers  and 
amount  of  merchandise,  and  upon  the 
classes  of  tickets  held  by  the  passengers. 
Lexington  6-  W.  C.  R.  Co.  v.  Fitchburg  R. 
Co.,  \\Gray  {Mass.)  266. 

Mass.  Act  of  1845,  ch.  191,  which  provides 
for  the  appointment  of  commissioners  to  fix 
the  compensation  which  shall  be  paid  by 
one  railroad  company  for  the  drawing  of 
its  passengers,  merchandise,  and  cars  over 
the  railroad  of  another  company,  does  not 
infringe  upon  any  rights  which  the  latter 
company  may  have  under  its  charter  to  reg- 
ulate tolls  on  its  own  road ;  neither  is  it  a 
valid  objection  to  the  appointment  of  such 
commissioners,  in  any  instance,  that  the 
parties  agree  as  to  the  compensation  to  be 
paid  for  the  carriage  of  passengers,  and  the 
petition  asks  for  a  commission  merely  to  fix 
the  rate  for  freight.  Vermont  &*  M.  R.  Co. 
V.  Fitchburg  R.  Co.,  9  Cush.  {Mass.)  369. 

10.  Regulation  of  teriniiiul  clinrgcs. 
—  Under  the  Regulation  of  Railways  Act, 
'873-  §  '5.  the  commissioners  have  to  say 
whether  any  given  service  performed  by  a 
railway  is  one  for  which  a  terminal  charge 
can  be  made,  and  if  they  think  such  service 
is  incidental  to  conveyance  and  covered, 
therefore,  by  the  mileage  rate,  or  is  n<jt  a  ' 
service  of  the  kind  to  which  the  power  of 
the  company  to  make  a  terminal  charge 
applies,  they  are  authorized  to  decide  that 
the  rate  for  conveyance  cannot  be  increased 
by  the  addition  of  a  terminal  charge.  Nes- 
ton  Colliery  Co.  v.  London  &*  N.  W.  R.  Co., 
4  A>.  (S-  C.  T.  Cas.  257. 

11.  Authority  to  fix  telegrapliic 
cliarges.— Under  the   authority  given  to 


the  N.  Car.  railroad  commission  "to  make 
rates  for  the  transmission  of  nicssages  by 
ar:y  telegraph  line  or  lines  doing  business  in 
the  state,"  the  commission  has  the  power, 
subject  to  the  right  of  appeal,  to  ascertain 
what  particular  corporation  is  in  the  control 
of  or  operates  any  of  such  lines  in  the 
state,  in  order  that  the  commission  may  e,\- 
ercise  its  authority  to  fix  rates,  as  well  as  lo 
know  against  whom  to  proceed  for  a  viola- 
tion of  its  regulations.  State  ex  rel.  \. 
Western  Union  Tel.  Co.,  113  iV.  Car.  213,  iS 
5.  E.  Rep.  389, 

Telegraphic  messages  transmitted  by  a 
company  from  and  to  points  in  the  state, 
although  traversing  another  state  in  the 
route,  do  not  constitute  interstate  commerce, 
and  are  subject  to  the  regulation  of  the 
commission.  State  ex  rel,  v.  Western  Union 
Tel.  Co.,  1 13  A^.  Car.  213, 18  5.  £".  Rep.  389.— 
Approving  Lehigh  Valley  R.  Co.  ?'.  Penn- 
sylvania, 145  U.  S.  192.  Distinguishing 
State  V.  Chicago,  St.  P.,  M.  &  O.  R.  Co.,  40 
Minn.  267  ;  Sternberger  v.  Cape  Fear  &  Y. 
V.  R.  Co.,  29  So.  Car.  510;  New  Orleans 
Cotton  Exch.  v.  Cincinnati.  N.  O.  &  T.  P. 
R.  Co.,  2  Int.  Com.  Com.  386, 

Under  N.  Car.  Act  of  1891,  ch.  320,  es- 
tablishing the  railroad  commission,  no  au- 
thority is  given  them  to  direct  a  telegraph 
company  to  open,  for  commercial  messages, 
offices  at  which  only  its  own  business,  or 
that  of  a  railroad  company  with  which  it 
has  intimate  relations,  is  transacted. 
Whether  it  is  the  duty  of  such  company  to 
take  such  messages  may  be  tested  in  a  civil 
action  after  the  tender  of  a  message.  State 
ex  rel.  v.  Western  Union  Tel.  Co.,  113  A^. 
Car.  213,  \SS.  E.  Rep.  389. 

12.  Jurisdiction  to  investigate 
complaints  of  unjust  preference. — 
Oreg.  Act  of  1891,  which  requires  railroad 
companies  to  furnish  the  commissioners 
with  a  schedule  of  transportation  charges, 
makes  it  the  duty  and  authority  of  the  com- 
missioners to  revise  such  schedule  and  to 
determine  whether  or  not  charges  are  just 
and  reasonable,  and  whether  any  unjust  dis- 
crimination is  made  against  any  person, 
locality,  or  corporation,  and  to  increase  or 
reduce  the  said  rates  according  as  experience 
and  business  operations  may  show  to  be 
just.  Held,  that  such  act  repeals  by  impli- 
cation those  portions  of  the  former  statute 
which  provide  that  no  railroad  company 
shall  charge  any  greater  compensation  for  a 
shorter  than  for  a  longer  distance  in  the  same 


ssion  "to  make 
of  niessages  by 
loing  business  in 
has  the  power, 
eal,  to  ascertain 
is  in  the  control 
ch  lines  in  the 
mission  may  ex- 
tes,  as  well  as  to 
ceed  for  a  viola- 
State  ex  rel.  \. 
3iV.  Car.  213,  iS 

ransmitted   by   a 

nts  in  the  state, 

er  state    in    the 

irstate  commerce, 

egulation  of  the 

/.  Western  Union 

S.E.Rep.  389.— 

R.  Co.  V.  Penn- 

DlSTINGUISHING 

I.  &0.  R.  C0..40 

.  Cape  Fear  &  Y. 

0;   New  Orleans 

ti.  N.  O.  &  T.  P. 

386. 

1 891,  ch.  320,  es- 
mmission,  no  au- 
direct  a  telegraph 
mercial  messages, 
own  business,  or 
ny  with  which  it 
,  is  transacted, 
such  company  to 
le  tested  in  a  ci%'il 
a  message.  State 
I   Tel.  Co.,  113  iV. 

>• 

to     investignto 

t   preference.— 

h  requires  railroad 
tie  commissioners 
portation  charges, 
hority  of  the  coni- 
[i  schedule  and  to 
t  charges  are  just 
her  any  unjust  dis- 
iinst  any  person, 
ind  to  increase  or 
rding  as  experience 

may  show  to  be 
:t  repeals  by  impli- 
Lhe  former  statute 

railroad  company 
:ompensation  for  a 
listance  in  the  same 


RAILWAY   COMMISSIONERS,  13-16. 


lUl 


direction,  leaving  the  carrier  at  liberty  to  fix 
the  transportation  charges,  subject  to  the 
provisions  of  the  statute,  at  such  rates  as  it 
may  deem  advisable,  since  the  two  acts 
cover  the  same  ground,  and  are  antagonistic 
in  theory  and  opposed  in  practice.  State  v. 
Jiogers,  55  Am.  &^  Eng.  R.  Cas.  530,  22  Oreg, 
348,  30  Pac.  Rep.  74. 

Where  the  case,  as  presented  by  the 
complainants  to  the  commissioners,  is  not 
s'jcli  as  to  call  for  an  exercise  of  their 
powers,  it  does  not  involve  a  public  right, 
and  therefore  should  not  be  prosecuted 
either  by  them  or  by  the  state.  State  v. 
Chicago,  M.  &*  St.  P.  R.  Co.,  55  Am.  &•  Eng. 
R.  Cas.  487,  86  /oTva  641,  53  A^.  W.  Rep.  323. 

Where  a  party  is  prejudiced  within  the 
meaning  of  17  &  18  Vict.  c.  31,  §  2,  by  a 
preference  given  to  some  other  person,  his 
only  remedy  is  by  complaint  to  the  railway 
commissioners.  No/e  v.  Digby,  3  Ry.  &*  C. 
T.  Cas.  xvii,  27  IV.  R.  884. 

The  commissioners  have  jurisdiction  to 
inquire  into  a  complaint  of  undue  prefer- 
ence to  one  town  or  place  over  another  town 
or  place.  Mayor,  etc.,  of  Dover  v.  South 
Eastern  R.  Co.,  i  Ry.  <&-  C.  T.  Cas.  349. 

But  to  justify  interference  by  the  com- 
missioners it  is  not  sufficient  merely  that  a 
distinction  in  the  fare  of  different  lines, 
even  of  the  same  company,  exists,  unless  it 
creates  an  undue  preference  or  prejudice. 
Innes  v.  London,  B.  «S-*  S.  C.  R.  Co.,  2  Ry.  &* 
C.  T.  Cas.  155. 

1 3.  Power  to  compel  reduction  of 
charges  to  schedule  rate.— The  board 
of  railway  commissioners  of  Iowa  have 
power  under  the  acts  of  22d  Gen.  Assem- 
bly, ch.  28,  §  16,  to  compel  a  company  to 
reduce  its  charges  to  the  schedule  prepared 
bv  the  board.  Campbell  v.  Chicago,  M.  <S>» 
.sy.  P.  R.  Co.,  86  Iowa  587,  53  N.  IV.  Rep. 

351- 

Where  a  company  demurs  to  an  alternative 
writ  requiring  it  to  reduce  its  rates  and 
charges  to  conform  to  an  order  of  the 
board  of  transportation,  and  denies  the 
power  of  the  board  to  reduce  such  rates 
and  charges,  the  court  will  determine  the 
question  of  the  power  of  the  board  to  make 
the  order  in  question  before  entering  upon 
an  examination  of  the  facts,  and  therefore 
will  not  permit  the  demurrer  to  be  with- 
drawn. State  ex  rel.  /.  Fremont,  E.  <S^'  M. 
V.  R.  Co.,  32  Am.  &•  Eng.  R.  Cas.  426.  22 
^'?*-  3' 3.  35  A^.  JV.  Rep.  118. 

In  Neb.  act  to  regulate  railroads,  prevent 


unjust  discriminations,  and  provide  for  a 
board  of  transportation,  section  i  requires 
all  charges  made  for  any  service  rendered  or 
to  be  rendered  in  the  transportation  of  prop- 
erty to  be  reasonable  and  just,  and  prohibits 
every  unjust  and  unrensonable  charge,  and 
declares  it  to  be  unlawful.  Therefore, 
where  the  board  of  transportation  finds  that 
the  charges  of  a  railroad  are  not  reasonable 
and  just,  and  orders  a  reduction  of  such 
rates  33J  per  cent.,  such  board  cannot  enter 
into  a  compromise  with  the  companies  by 
which  the  charges  within  the  state  shall  be 
in  excess  of  the  ratei  found  to  be  reasona- 
ble and  just  in  consideration  of  certain  re- 
ductions in  rates  on  in-and-out  freight  to 
and  from  Chicago  and  other  common 
points.  State  ex  rel.  v.  Fremont,  E.  &*  M. 
V,  R.  Co.,  32  Am.  &•  Eng.  R.  Cas.  442,  23 
A^eb.  117. — Followed  in  State  ex  rel.  v. 
Missouri  Pac.  R.  Co.,  29  Neb.  550. 

14.  Publication  of  rates  by  com- 
missioners.—  Railroad  commissioners  had 
published  a  notice  that  a  schedule  of  rates 
which  they  had  prepared  would  go  into 
effect  on  a  certain  day,  and  this  publication 
had  been  made  for  the  time  required  by 
law  ;  but  the  secretary  received  a  telegram 
from  certain  roads  asking  an  extension  of 
time,  which  he  granted,  and  published  notice 
thereof,  and  a  railroad  company  sought  to 
restrain  the  publication.  Held,  that  the 
commissioners  could  not  urge  that  the 
publication  was  complete,  and  the  extension 
of  time  unauthorized.  Chicago  &*  N.  W, 
R.  Co.  V.  Dey,  35  Fed.  Rep.  866,  1  L.  R.  A. 
744,  2  Int.  Com.  Rep.  325. 

The  Illinois  statute  provides  that  the 
railroad  commissioners  slfall  make  for  each 
company  doing  business  in  the  state  a 
schedule  of  maximum  rates,  and  cause  the 
same  to  be  published  for  three  weeks  in 
some  newspaper  published  at  the  state  cap- 
ital. Held,  that  the  classification  of  freights 
made  is  a  part  of  the  schedule,  and  must  be 
published  the  same  as  the  schedule.  St. 
Louis  <&>»  C.  R.  Co,  V.  Blackwood,  14  ///. 
App.  503. 

15.  To  hoar  complaints  and  rec- 
ommend changes  in  rates. — Where 
the  legislature  passes  an  act  creating  a 
board  of  railroad  commissioners,  empower- 
ing it  to  examine  into  the  affairs  of  railroad 
corporations  doing  business  in  the  state, 
and  requires  it  \.o  make  a  biennial  report, 
with  such  suggestions  "  as  to  what  changes 
in   the  classification   of  freights,  or  what 


S^'vlj 


1142 


RAILWAY  COMMISSIONERS,  10, 17. 


II, f 


1i. 

■•:^ 


I'.'i 
I' 


changes  in  the  rate  of  freights  or  fares  are 
advisable  for  the  public  welfare,"  but  con- 
fers no  express  authority  upon  the  board  to 
regulate  the  price  of  freight,  or  to  deter- 
mine when  freight  charges  are  unreasonable, 
the  board  has  uo  jurisdiction  to  require  a 
railroad  company  to  refund  to  a  shipper 
money  alleged  to  have  been  exacted  from 
iiini  in  excess  of  a  reasonable  charge.  Hat'/' 
road  Com'rs  v.  Oregon  R.  &*  N.  Co.,  35  Am, 
&•  Eng.  R.  Cas.  542,  17  Oreg.  65,  19  Pac. 
Rep.  702,  2  L.  R.  A.  195. 

Where  such  act  directs  the  board  to  ex- 
amine into  such  affairs,  and  especially  re- 
quires it  to  report  the  result  of  its  investi- 
gation concerning  certain  specific  matters 
to  the  legislature,  evidently  for  the  purpose 
of  its  action  thereon,  it  will  not  be  presumed 
that  the  act  intended  to  give  the  board  au- 
thority to  adjust  these  matters,  although  it 
is  empowered  to  hear  complaints  by  persons 
against  railroad  companies  on  account  of 
acts  in  general  done  or  omitted  to  be  done 
by  them.  Railroad  Com'rs  v.  Oregon  R.  &* 
N.  Co.,  35  Am.  <S-  Eng.  R.  Cas.  542.  17 
Oreg.  65,  19  Pac.  Rep.  702,  2  L.  R.  A, 
195. 

10.  Where  company  has  charter 
right  to  regulate  charges. — Where  a 
charter  authorizes  the  company  to  "fix, 
regulate,  and  receive  tolls  and  charges  for 
transportation  of  persons  and  property," 
there  is  annexed  to  such  grant  the  implied 
condition  that  the  tolls  and  charges  fixed 
shall  be  reasonable,  and  the  legislature  re- 
tains the  power  to  secure,  through  a  com- 
mission, conformity  by  the  company  to  the 
standard  of  reasonableness  in  its  rates.  Stone 
v.  Natchez,  J.  &»  C.R.  Co.,  21  Am.  &*  Eng. 
R.  Cas.  17,  62'  Mt'ss.  646.— Followed  in 
Stone  V.  .Farmers'  L.  &  T.  Co.,  23  Am.  & 
Eng.  R.  Cas.  577,  116  U.  S.  yyj.— Stone  v. 
Yazoo  Sf*  M.  V.  R.  Co.,  21  Am.  &*  Eng. 
R.  Cas.  6,  62  Mt'ss.  607,  52  Am.  Rep.  193. 

The  final  test  of  the  reasonableness  of 
charges  is  not  with  the  commission,  but 
with  the  judiciary.  The  fixing  of  rates  by 
the  commission  is  not  conclusively,  but 
only  prima  facie,  correct.  Stone  v.  Natchez, 
/.  &*  C.  R.  Co.,  21  Am.  &•  Eng.  K.  Cas. 
17,  62  Miss.  646. 

Though  a  company's  right  to  regulate 
its  charges  be  protected  by  its  charter,  still 
the  legislature  may  require  it  to  submit 
to  a  supervisory  commission  its  tariff  of 
charges,  in  order  that  the  latter  may  see 
whether  it  conforms  to  the  limits  fixed  by 


its  charter,  and  may  authorize  such  com- 
mission to  prevent  unjust  discrimination 
or  'partiality  not  authorized  by  the  com- 
pany's charter,  and  to  hear  complaints  in 
respect  thereto,  and  may  require  the  com- 
pany to  give  notice  to  the  commission 
of  any  accident  to  a  train  attended  with 
serious  personal  injury,  and  may  require 
the  company  to  keep  suitable  reception 
rooms  at  each  depot,  and  to  have  bulletin 
boards  denoting  the  arrival  and  departure 
of  trains.  Stone  v.  Yazoo  &*  M.  V.  R.  Co., 
21  Am.  &"  Eng.  R.  Cas,  6,  62  Miss.  607,  52 
Am.  Rep.  193.— Followed  in  Stone  v. 
Natchez,  J.  &  C.  R.  Co.,  62  Miss.  646. 

17.  Due  process  of  law— Oppor- 
tunity to  >e  heard.— In  a  proceeding 
before  the  .ommissioners  to  fix  rates  the 
road  must  have  notice  of  the  petition,  and 
an  opportunity  of  being  heard ;  and  the 
court  cannot  go  outside  of  the  record  be- 
fore it  to  ascertain  if  notice  was  given.  An 
order  is  invalid  for  want  of  a  notice  to  the 
defendant.  Littlefieldv.  Fitchburg  R.  Co., 
158  Mass.  \,yi  N.  E.  Rep.  859. 

The  provisions  in  the  Texas  Railroad 
Commission  Act  of  1891,  §  4,  relative  to 
notice  to  the  railroad  companies  of  the  time 
and  place  for  fixing  rates,  and  opportunity 
for  hearing,  and  the  proceedings  of  the 
commission  thereunder  for  fixing  rates,  do 
not  constitute  "  due  process  of  law,"  within 
the  meaning  of  the  federal  constitution,  or 
"an   investigation  by  judicial  machinery," 


within  the  rnean 
supreme  oan 


:  f.he  decisions  of  the 
■  unconstitutional  and 
invalid.  Me  ■  ■  Trust'  Co.  v.  Texas  &* 
P.  R.  Co.,  50  A;.  -'»>'  Eiig.  R.  Cas.  559,  51 
Fed.  Rep.  529. 

Said  act  contains  provisions  which  tend 
to  enforce  a  compliance  with  the  rates  fixed 
by  the  commission  whether  they  be  reason- 
able or  not,  and  provisions  tending  to  em- 
barrass, or  enabling  the  commissioners  to 
embarrass,  such  roads  as  may  chance  to 
invoke  the  protection  of  the  constitution 
against  the  taking  of  their  property  without 
due  process  of  law,  or  denying  them  the 
equal  protection  of  the  laws,  and  is,  there- 
fore, unconstitutional  and  invalid.  Mercan- 
tile Trust  Co.  v.  Texas  <S-  P.  R.  Co.,  50  Am. 
&•  Eng.  R.  Cas.  559,  51  Fed.  Rep.  529. 

Georgia  Act  of  1879,  creating  a  railroad 
commission,  and  authorizing  the  commis- 
sioners to  make  a  schedule  of  maximum 
rates,  is  not  in  violation  of  either  the  con- 
stitution  of  the  United  States  or  of  the 


L 


RAILWAY   COMMISSIONERS,  18,  19. 


1143 


i 


J 


ize  such  com-  | 

discrimination 

1   by  the  corn- 
complaints  in 
quire  the  com- 

e    commission 

attended   with 
may  require 
able    reception 
have  bulletin 

and  departure 

«•  M.  V.  R.  Co., 

52  Miss.  607,  52 

IN   Stone   V. 

Miss.  646. 

law— Oppor- 

I  a  proceeding 

;o  fix  rates  the 

e  petition,  and 

leard ;  and  the 

the  record  be- 

was  given.    An 

a  notice  to  the 

tchbtirg  R,  Co., 

$59. 

Texas    Railroad 

§  4,  relative  to 
^niesof  the  time 
md  opportunity 
eedings  of  the 
fixing  rates,  do 
i  of  law,"  within 

constitution,  or 
;ial  machinery," 
iecisioiis  of  the 
institutional  and 

Co.  V,  Texas  &* 
R.  Cas.  559,  51 

ons  which  tend 
h  the  rates  fixed 
they  be  reason- 
tending  to  em- 
(mmissioners  to 
may  chance  to 
;he  constitution 
>roperty  without 
nying  them  the 
s,  and  is,  there- 
valid.  Mercan- 
'.  R.  Co.,  so  Am. 
.  Rep.  529. 
ating  a  railroad 
[ig  the  commis- 
ie  of  maximum 
either  the  con- 
tates  or  of  the 


state.  TiUej'  v.  Savanna/:.  F.  <S-  W,  R.  Co., 
5  Fed.  Rep.  641,  4  Woods  (U.S.)  427. 

The  question  of  a  reasonable  rate  or 
charge  is  a  question  for  judicial  investiga- 
tion, and  the  Ga.  Act  of  Oct.  14, 1879,  which 
gives  the  railroad  commissioners  power  to 
establish  just  and  reasonable  rates,  and  pro- 
vides that  the  schedule  of  rates  established 
by  the  commission  shall  be  "  sufficient  evi- 
dence "  that  the  rates  therein  fixed  are  just 
and  reasonable,  is  repugnant  to  the  consti- 
tution of  the  United  States,  as  depriving 
the  company  of  its  property  without  due 
process  of  law.  Richmond  &*  D.  R.  Co.  v. 
Trammel,  55  Am.  &*  Eng.  R.  Cas.  520,  53 
Fed.  Rep.  196. 

The  words  "sufficient  evidence,"  as  used 
in  the  statute,  are  defined  by  the  code  to 
mean  "  that  which  is  satisfactory  for  the 
purpose  "  and  the  state  courts  will  not  nec- 
essarily hold  the  words  to  mean  "  conclusive 
evidence."  Therefore,  in  the  absence  of 
any  judicial  construction  of  the  statute,  a 
railroad  company  will  not  be  granted  an 
injunction  to  restrain  the  railroad  commis- 
sioners from  instituting  suits  to  collect 
penalties  for  violations  of  the  rates  fixed  in 
the  schedule  prepared  by  them.  Richmond 
&•  D.  R.  Co.  V.  Trammel,  55  Ain.  <^  Ettg. 
R.  Cas.  520,  53  Fed.  Rep.  196. 

3.  To  Regulate  Depots,  Side  Tracks,  etc. 

18.  Depots  and  terminal  facili- 
ties.*—Under  Conn.  Act  of  1866,  ch.  67, 
the  railroad  commissioners  may  discontinue 
any  railroad  station,  but  they  have  no  pow- 
ers of  arbitration.  They  act  in  a  judicial  ca- 
pacity, and  their  findings  must  be  definite, 
and  not  depend  on  any  conditions  to  be 
performed  by  either  party.  Chester  v.  Con- 
necticut Valley  R.  Co.,  41  Conn.  348. 

It  is  the  duty  of  the  railroad  commission- 
ers to  approve  or  disapprove  of  the  location 
of  a  new  site  for  a  depot.  State  ex  rel.  v. 
Railroad  Com'rs,  36  Am.  &*  Ettg.  R.  Cas. 
510,  56  Conn.  308,  15  Atl.  Rep.  756. 

An  award  of  railroad  commissioners 
clearly  imposing  on  one  of  two  railroads 
conducted  under  a  joint  management  the 
customary  service  of  furnishing  terminal 
facilities  and  providing  depot  accommoda- 
tions in  consideration  of  the  other  company 
collecting  the  scattered  traffic  is  not  limited 

*  Compulsory  location  of  depots  by  the  courts 
or  railroad  commissioners,  see  22  Am.  &  Eng. 
R.  Cas.  509,  alislr. 


by  a  clause  stating  that  by  the  understand- 
ing of  parties  the  question  of  terminal 
freight  charges  was  not  considered  or  in- 
cluded. Boston  &'  L.  R.  Corp.  v.  Nashua 
<&<•  L.  R.  Corp.,  157  Mass.  258.  31  A^.  E.  Rep. 
1067. 

Nebraska  Act  of  June  6,  1885,  gives  the 
state  railroad  commission  general  supervi- 
sion of  all  railroads  in  the  state,  with  the 
right  to  investigate  the  necessity  of  any 
addition  or  change  of  station  houses  or 
stations.  Held,  that  the  court  would  not 
grant  a  mandamus  to  compel  a  relocation 
of  a  station  until  after  the  complaining 
party  had  applied  to  the  commission.  State 
ex  rel.  v.  Chicago,  St.  P.,  M.  (S-  O.  R.  Co.,\<) 
Neb.  476,  27  N.  IV.  Rep.  434. — DISTIN- 
GUISHING State  V.  Republican  Valley  R. 
Co.,  17  Neb.  647. 

The  Railway  and  Canal  Traffic  Act,  1854, 
§  2,  does  not  compel  a  railway  company 
to  find  reasonable  accommodation  for  the 
public  further  than  as  it  is  in  the  interests 
of  railway  traffic  that  it  should  be  found, 
and  an  application  to  the  commissioners  to 
order  a  company  to  construct  a  foot  bridge 
over  its  railway  in  a  station  for  the  more 
convenient  ingress  and  egress  of  foot  pas- 
sengers was  refused,  on  the  ground  that 
such  a  bridge  was  not  a  due  and  reasonable 
facility  under  the  circumstances.  Holyhead 
Local  Board  V.  London  <S^  A^.  W.  R.  Co.,  4 
Ry.  &^  C.  T.  Cas.  37. 

10.  Side  tracks  and  switches. — 
An  order  of  the  railroad  commissioners  re- 
quired a  company  to  transport,  as  a  switch- 
ing service,  and  at  switching  rates,  9ars 
loaded  with  oil  to  a  point  half  a  mile  outside 
of  its  yard  limits  and  not  on  the  company's 
main  Ime,  a  part  of  the  service  only  being 
over  the  main  line  of  the  company,  the  cars 
being  run  under  orders  from  a  dispatcher, 
and  not  under  orders  from  the  yard  master. 
Held,  that,  although  the  service  was  rendered 
by  the  switching  crew,  it  was  a  train  and 
not  a  switching  service,  and  the  order  of- 
the  commissioners  would  not  be  enforced. 
State  V.  Chicago,  M.  &*  St.  P.  R.  Co.,  SS 
Am.  &*  Eng.  R.  Cas.  515,  88  Iowa  445,  55  N. 
IF.  Rep.  331. 

The  Me.  statute  gives  the  commissioners 
jurisdiction  only  in  case  of  disagreement 
between  the  parties  as  to  the  necessity  and 
extent  of  the  real  estate  to  betaken  for  side 
tracks,  depots,  wood  sheds,  repair  shops, 
and  car,  engine,  and  freight  houses;  and 
they   have    power   only   to   determine    the 


m^i 


1144 


RAILWAY   COMMISSIONERS,  20. 


!^.  ^ 

^n 


'  '\i  " 


necessity  and  extent  of  the  real  estate  to  be 
taken  for  these  purposes,  having  in  view 
the  reasonable  accommodation  of  the  traffic 
and  appropriate  business  of  the  corporation. 
Spofford  V.  Bucksport  &*  B.  R.  Co.,  66  Me. 
26.— Followed  in  Neal  v.  Mortland,  85 
Me.  62. 

The  commissioners  adjudged  and  deter- 
mined that  so  mucli  of  said  real  estate  as  is 
first  described  in  their  return  is  necessary 
for  the  use  of  a  railroad  company  "  for 
necessary  tracks,  side  tracks,  depot,  wood 
sheds,  repair  shops,  and  car,  engine,  and 
freight  houses,  and  for  the  reasonable  ac- 
commodation of  the  traffic  and  appropriate 
business  of  said  corporation."  Held,  that 
they  exceeded  their  powers  under  the  stat- 
ute ;  that  they  had  no  power  to  adjudge  the 
estate  necessary,  and  condemn  it,  for  tracks 
as  distinguished  from  side  tracks,  nor  for 
the  general  uses  of  the  corporation  in  addi- 
tion to  the  uses  specified  in  the  statute. 
Spofford  V.  Bucksport  <3-  B.  R.  Co.,  66  Me. 
26. 

Where  it  is  doubtful  whether  a  junction 
which  is  sought  by  applicants  as  a  reasona- 
ble facility  would  be  allowed  by  the  board 
of  trade  to  be  used,  if  ordered  by  the  com- 
missioners and  constructed  by  the  com- 
pany, and  where  the  mode  of  working  such 
junction  would  be  unsatisfactory  and  ob- 
structive to  the  oiher  traffic  on  the  main 
line,  such  a  junction  is  not  a  due  facility 
within  the  meaning  of  section  2  of  the  Rail- 
way and  Canal  Traffic  Act,  1854.  Dublin 
Whiskey  Distillery  Co.  v.  Midland  G.  W. 
of  I.  Co.,  4  Ry.  &»  C.  T.  Cas.  32. 

4.   To  Regulate  Highway  and  Railway 
Crossings. 

20.  In  general.  —  Mass.  Act  of  1871, 
ch.  343,  providing  for  the  construction  of  a 
viafliict  and  union  depot  in  the  city  of 
Worcester,  to  be  used  by  the  several  roads 
entering  the  city,  designates  very  fully  the 
manner  of  its  construction,  and  provides 
what  streets  it  shall  pass  over,  and  then  pro- 
vides that  they  shall  be  "constructed  and 
arranged  in  such  manner  and  form  as  the 
board  of  railroad  commissioners  determines 
and  directs."  Held,  that  this  left  no  au- 
thority in  the  court  to  pass  upon  the  com- 
parative convenience  of  the  location  and 
grade  of  the  viaduct,  where  there  is  a  dis- 
pute between  the  city  authorities  and  the 
railroad  commissioners.  Mayor,  etc.,  of 
Worcester  v. Railroad Cotnrs,\\i  Mass,  161. 


The  above  act  merely  recognizes  the  city 
authorities  as  parties  in  interest,  to  whom 
notice  is  to  be  given  according  to  section 
1 1  of  the  act,  but  they  are  to  be  heard  as 
interested  parties,  and  not  as  a  tribunal 
whicli  is  to  adjudicate  the  measure.  Mayor, 
etc.,  of  Worcester  v.  Railroad  Com'rs,  113 
Alass.  161. 

Section  1 1  of  the  above  statute  simply 
provides  for  the  building  and  maintaining 
of  a  viaduct  according  to  the  directions  of 
the  railroad  commissioners,  and  it  does  not 
require  or  authorize  the  commissioners  or 
the  railroad  companies  to  raise  or  lower, 
alter  the  course  of,  or  otherwise  change, 
either  of  the  three  streets  named  therein, 
or  any  other  street  or  way  in  the  city. 
Mayor,  etc.,  of  Worcester  v.  Railroad  Com'rs, 
113  Mass.  161. 

An  order  of  the  railroad  commissioners 
which  determines  the  course  and  grade  of 
the  tracks  and  bridges  of  the  viaduct,  and 
the  manner  of  building  the  abutments,  and 
the  construction  of  the  work  generally,  is 
not  invalid,  either  for  the  reason  that  the 
bridges,  are  not  suitable,  or  because  the 
consent  of  the  mayor  and  aldermen  has  not 
been  given  to  their  location,  arrangement, 
or  construction.  Mayor,  etc.,  of  Worcester 
V.  Railroad  Com'rs,  w^  Mass.  161. 

Section  18  of  the  above  act  expressly 
makes  "  the  general  laws  in  like  cases"  ap- 
plicable to'  the  rights  of  all  parties  sustain- 
ing damages,  "except  as  herein  otherwise 
provided."  H::ld,  that  damages  occasioned 
by  laying  out  and  maintaining  the  joint 
road  for  the  different  companies  by  means 
of  the  viaduct  might  be  assessed  by  the 
county  commissioners,  or  in  case  of  dis- 
satisfaction with  their  estimate,  by  a  jury, 
under  Mass.  Gen.  St.,ch.  63.  Mayor,  etc.,  of 
Worcester  v.  Railroad  Com'rs,  113  Mass. 
161. 

But  it  being  admitted  that  the  road, 
where  it  crosses  the  streets,  will  cause  ob- 
structions thereto,  the  railroad  companies 
cannot  proceed  to  construct  the  viaduct 
until  the  county  commissioners,  upon  the 
application  of  the  railroad  companies,  or  of 
the  mayor  and  aldermen,  shall  have  made  a 
decree  prescribing  wliat  alterations  shall  be 
made  in  the  streets,  and  what  structures  at 
the  crossing,  and  requiring  of  the  companies 
satisfactory  security  for  compliance  with  the 
lawful  requirements  of  the  county  commis- 
sioners, and  for  the  indemnity  of  the  city, 
under  Mass.  Gen.   St.,  ch.   63,  §§  48,  49. 


1 


nizes  the  city 
est,  to  whom 
ing  to  section 
be  heard  as 
as  a  tribunal 
sure.  Mayor, 
d  Com'rs,  113 

tatute  simply 
maintaining 
directions  of 
d  it  does  not 
missioners  or 
aise  or  lower, 
rwise  change, 
med  therein, 
in  the  city. 
jt'lroad  Com'rs, 

:ommissioners 
and  grade  of 
e  viaduct,  and 
butments,  and 
generally,  is 
lason  that  the 
r  because  the 
ermen  has  not 
,  arrangement, 
,  0/  Worcester 
.  161. 

act  expressly 
like  cases"  ap- 
>arties  sustain- 
rein  otherwise 
ges  occasioned 
ling  the  joint 
nies  by  means 
isessed  by  the 

I  case  of  dis- 
ite,  by  a  jury. 
Mayor,  etc.,  of 
rs,    113  Mass. 

dat  the  road, 
will  cause  ob- 
>ad  companies 
t  the  viaduct 
ers,  upon  the 
mpanies,  or  of 

II  have  made  a 
ations  shall  be 
t  structures  at 
the  companies 
liance  witli  the 
aunty  commis- 
ty  of  the  city, 
63,   §§  48,   49. 


RAILWAY   COMMISSIONERS,  21,  22. 


1146 


Mayor,  etc.,  of  Worcester  v.  Railroad  Com'rs, 
1 13  Mass.  161. 

For  the  damages  caused  to  the  estates  of 
third  persons  by  such  alterations  the  rail- 
road companies  are  liable ;  and  if  they  do 
not  comply  with  such  requirements  they 
may  be  compelled  to  do  so  by  the  supreme 
court  sitting  in  equity,  or  may  be  liable  to 
indictment.  Mayor,  etc.,  of  Worcester  v. 
Kailroad  Com'rs,  1 13  Mass,  i^i. 

21.  To  rc{;ulate  or  abolish  high- 
way crossings  at  gra<le.— Conn.  Act  of 
1884,  ch.  100,  provides  that  the  railroad 
commissioners,  when  public  safety  requires 
an  alteration  of  any  highway  crossed  at 
grade  by  a  railroad,  "  may  order  such  altera- 
tions in  such  highway  as  they  shall  deem 
best."  Two  converging  highways  crossed 
a  railroad  at  grade  at  points  half  a  mile 
apart  and  united  just  beyond  the  road. 
Held,  that  the  commissioners  had  power  to 
join  the  two  highways  before  reaching  the 
railroad  and  make  a  single  crossing,  al- 
though the  distance  by  one  highway  was 
increased  thirty  rods  and  by  the  other  fifteen 
rods.  Suffield  v.  New  Haven  &•  N.  Co.,  53 
Conn.  367,  5  Atl.  Rep.  366. 

Conn.  Gen.  St.,  §  3489,  provides  that 
upon  the  petition  of  any  town,  city,  borough, 
or  railroad  company,  the  railway  commis- 
sioners may  discontinue  any  grade  crossing 
of  highway  by  railway,  and  determine  at 
whose  expense  the  change  shall  be  made. 
Section  3491  allows  an  appeal  to  the  supe- 
rior court.  A  railroad  company  petitioned 
for  the  abolishment  of  all  grade  crossings 
on  its  line  in  the  town  of  Fairfield.  One 
of  these  crossings  is  at  a  point  one  fourth 
of  a  mile  from  a  station  where  the  public 
crosses  at  its  pleasure  as  at  a  public  way. 
The  commissioners  ordered  the  abolish- 
ment of  both  of  these  crossings,  treating 
them  as  if  they  were  both  highway  cross- 
ings, and  ordered  the  substitution  of  a  new 
one  between  the  two  points.  Held,  that  the 
commissioners  had  exceeded  their  powers 
in  assuming  that  there  was  a  crossing  in 
existence  at  the  station  for  the  purpose  of 
determinirig  what  should  be  done  in  refer- 
ence to  the  regular  highway  crossing.  Fair- 
field's Appeal,  39  Am.  6^  Eng.  R.  Cas,  689, 
57  Conn.  167,  17  Atl.  Rep.  764. 

Railroad  commissioners  have  no  juris- 
diction to  regulate  the  crossing  of  railroad 
tracks  and  public  ways,  unless  the  former 
are  laid  under  charter  authority  so  as  to  be 
maintained  in  the  exercise  of  eminent  do- 


main, and  become  a  railroad  for  public  use, 
because  when  not  so  laid  they  are  a  mere 
convenience  to  be  used  or  disused  at  pleas- 
ure to  oe  maintained  or  removed  at  the 
will  o.'  their  owner;  they  are  private  prop- 
erty, subject  to  be  taken  in  the  exercise  of 
eminent  domain  by  the  laying  out  of  a  pub- 
lic way,  and  are  protected  by  the  same 
rights  of  compensation.  In  re  Railroad 
Com'rs,  83  Me.  273..  22  Atl.  Rep.  168. 

The  railroad  commissioner  has  power  to 
interfere  when  a  crossing  shall  have  become 
dangerous  by  reason  of  the  frequency  of 
travel  along  the  highway,  and  to  order  tlie 
erection  of  a  safety  gate  or  the  employment 
of  a  watchman.  Com'rs  of  Parks,  etc.  v. 
Chicago,  D.  &*  C.  G.  T.J.  R.  Co.,  91  Mich. 
291,51  N.  W.  Rep.  934. 

22.  To  compel  the  elevation  of 
tracks  crossing  public  streets.— The 
action  of  the  Conn,  legislature  in  providing 
for  the  removal  of  grade  crossings  was  an 
exercise  of  the  police  power  of  the  state. 
Woodruff  v.  New  York  &*  N.  E.  R.  Co.,  59 
Conn.  63,  20  Atl.  Rep.  17,  —  QUOTING 
Woodruff  V.  Catlin,  54  Conn.  295. 

The  states  are  intrusted  with  the  duty  of 
maintaining  all  the  internal  regulations 
necessary  for  the  protection  of  the  lives, 
health,  and  comfort  of  their  people  and  for 
the  security  of  their  rights.  The  general 
government  cannot  exercise  this  power  ex- 
cept in  cases  in  which  the  power  is  given  to 
it  expressly  or  by  necessary  implication.  No 
such  power  is  given  to  it  here.  There  was 
therefore  no  error  in  denying  a  motion  to 
remove  a  case  under  such  statute  to  the 
United  States  court,  the  matter  being  one 
of  which  that  court  would  not  have  cogni- 
zance. Woodruff  v.  New  York  &•  N  E. 
R.  Co.,  59  Conn.  63,  20  Atl.  Rep.  17. 

It  is  no  objection  to  the  validity  the 
action,  of  the  commission  that  one  of  its 
members  is  a  citizen  and  taxpayer  of  the 
city  where  the  grade  crossing  is  sought  to 
be  removed,  and  one  a  representative  and 
stockholder  of  the  railroads,  while  the  com- 
mission is  to  apportion  the  expense  of  the 
improvement  among  them.  The  legislature 
purposely  made  up  the  commission  by  tak- 
ing the  three  railroad  commissioners,  who 
had  no  interest  in  the  matter,  and  adding 
one  member  as  a  representative  of  the  city 
and  one  as  representing  the  railroads,  giv- 
ing power  to  a  majority  to  determine  any 
matter.  Woodruff  v.  Ne7u  York  &*  N.  E.  R. 
Co.,  59  Conn.  63,  20  Atl.  Rep.  17. 


ii 


■^ 


1146 


RAILWAY  COMMISSIONERS,  23-25. 


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The  fact  that  the  company  will  be  sub- 
jected to  great  expense  if  the  order  should 
be  enforced  is  no  reason  against  its  legality. 
It  is  a  matter  to  be  nrjjed  before  the  com- 
mission, which  has  power  to  allow  the  com- 
pany for  any  special  damage  as  a  part  of 
the  expense  of  the  improvement.  Woodruff 
V.  New  York  &*  N.  E.  li.  Co. ,  59  Conn.  63, 
20  Afl.  Rep.  17. 

Such  commission  was  nn\.  functus  officio 
by  reason  of  its  having  adopted  a  plan  for 
the  work.  It  had  a  right  to  reconsider  and 
adopt  another.  It  was  a  part  of  its  duty  to 
see  to  the  performance  of  the  work  as  well 
as  to  plan  for  it,  and  it  could  not  h^  functus 
officio  so  long  as  anything  remained  to  be 
done  to  remove  the  danger  at  the  crossing. 
Woodruff  v.  New  York  &>  N.  E.  R.  Co.,  59 
Conn.  63,  20  Atl.  Rep.  17. 

Forbidding  a  company  to  use  its  prop- 
erty in  a  way  that  would  be  dangerous  to 
the  public  is  not  a  taking  of  it  for  public 
use ;  nor  is  it  so  to  prohibit  its  use  in  a  par- 
ticular way  by  reason  of  which  its  value  is 
depreciated.  Woodruff  v.  New  York  &*  N. 
E.  R.  Co.,  59  Conn.  63.  20  Atl.  Rep.  17. 

The  return  in  the  above  case  set  up  that, 
at  the  time  when  the  order  of  the  commis- 
sion took  effect,  the  company  "  did  not  have 
any  such  surface  tracks  within  the  limits 
named  in  the  order  as  could  in  any  event 
have  anything  to  do  with  the  intent  and 
purpose  of  said  resolution  of  the  general 
assembly."  Held,  that  a  demurrer  did  not 
admit  the  correctness  of  the  construction  of 
the  resolution  claimed,  but  merely  referred 
the  question  of  its  construction  to  the  court. 
Woodruff  V.  New  York  &>  N.  E.  R.  Co.,  59 
Conn.  63,  20  Atl.  Rep.  17. 

23.  To  provide  for  private  cross- 
ings.—Under  Iowa  Act  of  1884,  ch.  133, 
the  railway  commissioners  have  power,  by 
suit  in  the  name  of  the  state,  to  order  the 
construction  of  an  overhead  farm-crossing. 
State  V.  Chicago,  M.  <S^•  St.  P.  R.  Co.,  55  Am. 
«S-  Eng.  R.  Cas.  487,  86  Iowa  641,  53  N.  W. 
Rep.  323.  State  v.  Mason  City  &*  Ft.  D.  R. 
Co.,  55  Am.  &*  Eng.  R.  Cas.  73,  85  /owa  516, 
$2  N.  W.  Rep.  490. 

It  was  argued  "  that  if  by  implication  the 
board  of  railroad  commissioners  have  the 
jurisdiction  and  power  to  make  this  order, 
they  have  the  jurisdiction  and  power  to 
make  any  order  that  any  court  can  make 
relating  to  railroad  companies,  whether  the 
same  be  a  public  duty  or  a  private  duty." 
Such  a  conclusion  is  not  logical,  since  the 


order  of  the  railroad  commission  was  based 
on  the  relation  and  obligation  of  the  corpo- 
ration to  the  public  at  the  inception  of  its 
enterprise,  and  in  no  way  involved  con- 
tractual or  business  relations  directly  be- 
tween the  corporation  and  individuals. 
State  V.  Mason  City  &>  Ft.  D.  R.  Co.,  55  Am. 
&*  Eng.  R.  Cas.  73,  85  Io7m  516,  52  N.  W. 
Rep.  490. 

24.  Benrolntioii  of  railway  cross- 
ings.—The  directors  of  a  railroad  company, 
by  their  attorney,  filed  a  petition  for  the 
removal  of  grade  crossings  under  the  Con- 
necticut statute.  An  interested  town  ap- 
pealed from  an  order  of  the  commissioners 
to  the  superior  court,  alleging  that  the 
petition  was  brought  by  the  railroad  com- 
pany, which  was  admitted.  In  subsequent 
pleadings  the  town  alleged  that  the  petition 
was  not  signed  by  the  directors  or  by  any 
person  authorized  to  do  so.  Held,  that  the 
allegation  that  the  petition  was  filed  by  the 
railroad  company  implied  that  it  was  filed 
by  its  authority,  and  was,  therefore,  in  due 
form.  Westbrook's  Appeal,  37  Am.  <S-  Eng. 
R.  Cas.  446,  57  Conn.  95,  16  Atl.  Rep.  724,  17 
Atl.  Rep.  368. 

A  railroad  company,  wishing  to  cross  the 
track  of  another,  filed  a  petition,  and  com- 
missioners were  appointed  to  appraise  the 
damages  and  fix  the  line,  grade,  and  manner 
of  crossing.  They  made  a  report  providing 
that  the  petitioning  company  should  insert 
and  place  crossing  frogs  at  the  points  of  in- 
tersection "  to  be  of  a  material,  style,  and 
pattern  approved  by  the  engineers  "  of  both 
companies,  and  in  case  they  could  not  agree, 
the  commissioners  would  decide  the  ques- 
tion. Held,  that  the  report  was  too  indefi- 
nite and  uncertain  to  be  capable  of  enforce- 
ment by  judgment,  and  should  be  set  aside. 
In  re  New  York,  L.  &*  W.  R.  Co.,  2s  Hun 
(N.  K)  232. 

5.  Conclusiveness  of  Their  Decisions. 

25.  In  general.— The  courts  will  not 
interfere  or  grant  relief  to  a  railroad  com- 
pany upon  a  complaint  made  as  to  one  of 
several  rates  only,  or  where  the  freight  and 
passenger  rates  established  by  the  commis- 
sioners are  not  assailed  as  an  entirety. 
Pensacola  &*  A.  R.  Co.  v.  State,  37  Am.  &* 
Eng.  R.  Cas.  579,  25  Fla.  310,  3  L.  R.  A. 
661,  5  So.  Rep.  833,  2  Int.  Com.  Rep.  522. 

Where  a  tariff  of  freight  and  passenger 
rates  has  been  established  by  the  commis- 
sioners, and  a  company  and  the  commis- 


RAILWAY  COMMISSIONERS,  26. 


1147 


ion  was  based 
of  the  corpo- 
:cption  of  its 
nvolved  con- 
i  directly  bc- 

individuals. 

Co.,  55  Am. 
i6.  52  N.  ir. 

way  cro8M- 

oad  company, 
tition  for  the 
ider  the  Con- 
ted  town  ap- 
ommissioners 
ng   that    the 
'ail road  com- 
n  subsequent 
u  the  petition 
)rs  or  by  any 
ieM,  that  the 
IS  filed  by  the 
It  it  was  filed 
refore,  in  due 
Am.  &•  Eng. 
I.  Kep.  724.  17 

g  to  cross  the 
ion,  and  com- 
I  appraise  the 
a,  and  manner 
lort  providing 
should  insert 
:  points  of  in- 
ial,  style,  and 
eers  "  of  both 
uld  not  agree, 
de  the  ques- 
ts too  inde fi- 
le of  enforce- 
I  be  set  aside, 
.  Co.,  35  Hun 

Decisions. 

irts  will  not 
iiilroad  com- 
as to  one  of 
;  freight  and 
the  conimis- 
an  entirety. 
'.  37  A»t.  Sf 
3  L.  li.  A. 
Rep.  522. 
id  passenger 
:he  commis- 
the  commis- 


sioners  differ  as  to  whether  such  rates, 
considered  as  a  whole,  will  prove  remunera- 
tive, and  there  is  room  for  a  difference  of 
intelligent  opinion  on  the  subject,  the 
courts  cannot  interfere  or  substitute  their 
judgment  for  that  ol  :he  commissioners,  but 
the  tariffs  as  fixed  by  "le  commission  must 
be  left  to  the  test  of  experiment.  Starrs  v. 
Pensacola  ^  A  K.  Co.,  29  Fla.  617,  11  So. 
Rep.  226. 

The  official  reports  of  railroad  commis- 
sioners charging  themselves  with  a  certain 
fund  are  not  conclusive  against  their  sureties, 
in  an  action  upon  their  bond,  that  the  com- 
missioners then  had  the  fund  on  hand  ;  and, 
it  appearing  that  the  fund  had  in  fact  been 
received  and  converted  by  one  of  their 
number  during  a  prior  term,  the  sur«  ..ies 
are  not  liable.     Bissell  v.  Saxton,  66  N.  Y. 

55. 

In  such  case  statements  made  by  the 
principals  upon  applying  for  a  reappoint- 
ment are  not  conclusive  against  the  sureties. 
Bissell  V.  Saxton,  66  A'.   Y.  55. 

Where  a  railroad  company  makes  appli- 
cation to  the  state  board  of  railroad  com- 
missioners to  issue  a  certificate  that  public 
convenience  and  necessity  require  the  con- 
struction of  its  road  as  proposed  in  its  arti- 
cles of  association,  and  the  application  is 
denied,  a  court  will  treat  it  as  in  the  nature 
of  a  review  of  a  subordinate  tribunal,  and 
cast  the  burden  on  the  company  to  show 
that  there  was  error  in  refusing  the  certifi- 
cate. In  re  Neiu  Hamburg  &*  P.  C.  R.  Co. , 
27  A^.  Y.  Supp.  664. 

20.  Not  conclusive— Constitutional 
law.— The  Pacific  railway  commission  is 
not  a  judicial  body,  and  possesses  no  judi- 
cial powers  under  the  Act  of  Congress  of 
March  3, 1887,  creating  it,  and  can  determine 
no  rights  of  the  government,  or  of  the  cor- 
porations. In  re  Pacific  R.  Com.,  31  Am.  &* 
Eng.  R.  Cas.  598,  12  SaTi/y.  (U.  S.)  559,  32 
Fed.  Rep.  241. 

The  enforcement  of  the  right  secured  by 
South  Carolina  constitution,  forbidding  the 
use  of  private  property  for  public  purposes 
without  just  compensation,  and  the  provi- 
sion of  t!ie  federal  constitution  forbidding 
the  states  to  deprive  a  person  of  his  prop- 
erty without  due  process  of  law,  belongs  to 
the  courts.  They  can  always  institute  an 
inquiry  whether  the  rates  imposed  by  a 
railroad  commission  are  just  and  reasonable, 
and  on  the  determination  of  this  depends 
their  riglit  to  interfere;  and  they  may  ap- 


point a  master  to  take  evidence  and  report 
thereon.  Clyde  v.  Richmond  &*  D.  H.  Co., 
57  Fed.  Rep.  436. 

The  enforcement  of  a  tariff  rate  which 
will  not  pay  the  expenses  of  operating  a 
railroad  is  an  abuse  of  the  discretion  given 
to  railroad  commissioners  by  the  statute 
authorizing  them  to  prescribe  reasonable 
and  just  rates  of  freight  and  passenger 
transportation,  and  amounts  to  a  taking  of 
the  company's  property  without  just  com- 
pensation. Pensacola  &*  A.  R.  Co.  v.  State, 
37  Am.  &>  Eng.  R.  Cas.  579,  25  Fla.  310,  3 
Z.  R.  A.  661,  5  So.  Rep.  833, 2  Int.  Com.  Rep. 
522. 

The  effect  of  the  provision  of  the  statute 
that  the  schedules  of  rates  fixed  by  the  com- 
missioners shall  be  deemed  and  taken  as 
sufficient  evidence  that  the  rates  fixed 
therein  are  just  and  reasonable  is  not  to 
make  such  schedules  conclusive  as  against 
judicial  inquiry,  but  is  to  provide  a  new 
mode  of  proving  the  reasonableness  and 
just  character  of  the  rates  fixed  by  the 
commissioners,  and  makes  the  schedules 
competent  and  adequate  evidence  of  the 
correctness  of  the  action  of  the  commis- 
sioners, in  the  absence  of  countervailing 
proof  that  they  have  exceeded  their  powers, 
or  abused  their  discretion,  and  invaded 
some  right  of  the  railroad  company.  Pen- 
sacola &•  A.  R.  Co.  V.  St"te,  37  Am.  <S««  Eng. 
R.  Cas.  579,  25  F/a.  310,  3  L.  P.  A.  661,  5 
So.  Rep.  833,  2  Int.  Com.  Rep.  522. 

Under  Kan.  Laws  of  1883,  ch.  124,  §  5,  an 
order  or  recommendation  of  the  board  of 
railroad  commissioners  to  a  company,  re- 
quiring repairs  to  be  made  upon  its  road  or 
track,  to  promote  the  security,  convenience, 
and  accommodation  of  the  public,  is  ad- 
visory only.  Such  an  order  or  recommen- 
dation is  not  final  or  conclusive  upon  the 
company  or  in  the  courts.  State  v.  Kansas 
C.  R.  Co.,  49  Am.  &*  Eng.  R.  Cas.  176,  47 
Kan.  497,  28  Pac.  Rep.  208. 

The  schedule  of  rates  fixed  and  published 
by  the  commissioners  is  not  conclusive  and 
final.  A  statute  depriving  railroad  com- 
panies of  the  right  of  judicial  inquiry  as  to 
the  reasonableness  of  such  rates  is  uncon- 
stitutional and  void  as  depriving  the  com- 
panies of  their  property  without  due  process 
of  law.  Chicago,  M.  &*  St.  P.  R.  Co.  v.  Min' 
nesota,  134  U.  S.  418,  10  Sup.  Ct.  Pep.  462, 
702  ;  reversing  38  Minn.  281. 

Under  the  laws  of  this  state,  the  award  of 
the  commissioners  is  not  deemed  final  and 


^ 


1148 


RAILWAY   COMMISSIONERS,  27,28. 


'if 


I 


\'4l  ' 

it 

,  ';  (■'  ■• 
^ ''  •• 


i 


conclusive  upon  llic  parties,  ijut  is  open  to 
future  exaniinution  and  revision.  Upon 
the  C()in[)laiiit  (jf  an  a(;f,'iievcil  jiarty,  the 
court  will  .ippoint  a  coinniiltec  lo  review 
the  same,  and  will  sustain  the  proceedini^s 
of  Slid  coinniittee  when  they  conform  to 
tli(!  law.  Eastirn  J'!.  Co.  v.  L'oHcorti &*  J',  h\ 
Co.,  47  A'.  //.  io8. 

t!7.  1>vclHioii  UH  prima  t'nvAc  c>vi- 
<1<>ii«'u  of  riMiHoiiabhMioNH  of  rutvN. — 
It  is  the  duty  of  the  board  of  transportation 
<if  Neljraska  to  fix  freiglit  rates  and  charges 
\viihin  the  state  at  such  sum  as  shall  be 
reasonable  and  just,  aiid  to  make  findintjs 
of  tlic  fact.  Its  findings  are  prima  facie 
evidence  of  the  truth  of  the  same,  but  when 
issue  is  taken  upon  them  •  in  court  the 
question  of  what  arc  reasonable  and  just 
charjjcs  nuist  be  determined  like  other 
questions  of  fact.  State  ex  rel.  v.  Fremont, 
K.  iS~»  M.  V.  R.  Co.,  32  Avu  *S^•  Eiii;.  li.  Cas. 
442,  23  AW;.  117,  36  A^.  //'.  /iV/.  305.  State 
ex  rtl.  V.  Fremont,  K.  &*  M.  V.  A'.  C>.,  32 
Am.  &•  Eng.  A'.  Cas.  426,  22  A'ed,  313,  35  JV, 
jr.  Rep.  118. 

And  the  Iowa  statute  providing  that  the 
rates  fixed  shall  be  taken  in  all  courts  of  the 
state  as  prima  facie  evidence  that  they  are 
reasonable  and  just,  and  that  any  greater 
cliarji;c  by  any  railroad  company  shall  be 
deemed  extortion,  is  not  unconstitutional 
as  abridging  the  privileges  and  immunities 
of  railroad  companies  by  compelling  them 
to  enter  involuntarily  into  contract  relations 
with  each  other,  but  imposes  upon  said 
companies  a  duty  to  make  such  rates,  or 
to  accept  those  fixed  by  the  railroad  com- 
missioners as  prima  facie  reasonable  and 
just,  if  they  fail  to  act  as  required  by  law. 
Burlington,  C.  R.  &*  N.  R.  Co.  v.  Dey,  45 
Am.  «5^  Eng.  R.  Cas.  391,  82  Iowa  312,  48  A'. 
//'.  Rep.  98. 

The  above  statute  simply  prescribes  a  rule 
of  evidence,  and  <loes  not  prevent  companies 
from  having  the  question  of  the  reasonable- 
ness of  rates  fixed  determined  in  the  courts 
of  the  state.  Burlington,  C.  R.  &^  N.  R.  Co. 
V.  Dey,  45  Am.  &^  Eng.  R.  Cas.  391,  82  /owa 
312,  48  A'.  IV.  /vV/.  98. 

Chapter  170!  the  Acts  of  the  Twenty-third 
General  Assembly  of  Iowa  is  to  be  read  and 
construed  with  chapter  28  of  the  Acts  of 
the  Twenty-second  General  Assembly,  and, 
when  so  construed,  the  joint  through  rates 
est;iblishccl  there'indcr  by  the  commission- 
ers are  not  thereby  madr  conclusive,  but 
on\y  prima  facie,  evidence  that   they  are 


just  and  reasonable,  /lur/ington,  C.  li,  &* 
A'.  R.  Co.  V.  Dey,  45  Am.  &^  Eng.  R.  Cas. 
391,  82  /<ni>a  312,  48  A'.   //'.  Rep.  9«. 

2M.  M»tt»rN  within  diNcn'tioii  of 
coiiiiiiiHMioiiOi'N.  —  A  Conn,  act  created 
a  commission  for  the  purpose  of  carry- 
ing overhead  certain  railroad  tracks  that 
crossed  streets  in  a  city  at  grade.  They 
were  empowered  with  all  the  general  powers 
of  tile  legislature,  and  were  to  direct  what 
proportion  of  the  entire  expense,  including 
land  damages,  each  party  should  pay  and 
bear,  and  determine  the  cost  of  the  whole 
or  any  portion  of  the  work.  One  of  the  rail- 
roads interested  presented  a  claim  for  tin 
destruction  of  its  old  station,  the  cost  of  re 
surfacing  tracks,  the  cost  of  extra  switching, 
and  other  items.  1  he  commission  disal- 
l(jwcd  the  claim,  //etti,  that  a  mandamus 
would  not  lie  to  compel  them  to  corsidn 
the  claim,  and  allow  it  if  just.  State  ex  rd. 
v.  Asylum  St.  Bridge  Com.,  63  Conn.  91,  2^ 
Atl.  Rep.  580. 

Where  a  tariff  of  rates  has  been  estab 
lished  by  the  railroad  commissioners,  and  the 
radroad  company  and  the  commissioner 
differ  as  to  whether  such  rates,  considered 
as  a  whole,  will  prove  remunerative  to  the 
company,  and  there  is  room  for  a  differenc  e 
of  intelligent  opinion  on  the  question,  the 
courts  cannot  interfere  or  substitute  their 
judgment  for  that  of  the  commissioners, 
but  the  tariffs,  as  fixed  by  the  commission- 
ers, must,  in  so  far  as  the  courts  are  con- 
cerned, be  left  to  the  test  of  experiment. 
Pensacola  &•  A.  R.  Co.  v.  State,  37  Am.  &* 
Eng,  R.  Cas.  579,  25  Fla.  310,  3  L.  R.  A. 
661,  5  So.  Rep.  833.  2  Int.  Com.  Rep.  522. 

Under  Minn.  St.  of  1887,  ch.  10,  §  8,  the 
determination  of  the  railroad  and  warehouse 
commission  as  to  what  are  equal  and  rea- 
sonable fares  and  rates  is  conclusive.  State 
ex  rel.  v.  Chicago,  M.  &*  St.  P.  R.  Co.,  3S 
Minn.  281,  37  N.  IV.  Rep.  782  ;  reversed  in 
134  U.  S.  418,  10  Sup.  Ct.  Rep.  462,  702. 
Which  latter  case  also  overthrows  Railway 
Transfer  Co.  v.  Railroad  &*  W.  Com.,  39 
Minn.  231.  39  A^.  W.  Rep.  150.  State  ex  rel. 
V.  Minneapolis  Eastern  R.  Co..  40 Minn.  1 56, 
41  A'.  IV.  Rep.  465. 

No  appeal  lies  to  t-iie  district  court  from 
an  order  of  the  railroad  and  warehouse 
commission  relating  to  the  mode  of  operat- 
ing a  railway  so  as  to  proniote  the  safety 
and  convenience  of  the  public.  Objections 
to  such  an  order  can  only  be  made  by  way 
of  defense  to  an  action  brought  to  enforce 


RAILWAY   COMMISSIONERS,  20-31. 


1149 


ton,    C.  /",  &* 

luif!.  A'.  Cas. 

icrctioii  of 

act  created 

sc  of  carry- 
tracks  that 
{rade.     They 

ncral  powers 
direct  what 

sc,  includin)^ 
Mild  pay  and 
of  the  whole 
ne  of  the  rail- 

laim  fur  the 
he  cost  of  re- 
ra  switchiiiff, 
nission  disal- 
a  lnil^dan1ll^ 
n  to  coi;sidii 

Staft  ex  ft;'. 
3  Conn,  91,  2(> 

\  been  estah 
oners,  and  the 
ommissioncr 
;s,  considered 
irative  to  tiie 
)r  a  difference 

question,  the 
bstitute  their 
3mmissioners, 

commission- 
urts  are  con- 
f  experiment. 
ti,  37  Am.  &* 

>.  3  ^-  a:  a. 

.  Rep.  522. 
1.  10,  §  8,  the 
nd  warehouse 
]ual  and  rea- 
lusive.  State 
P.  R.  Co.,  3S 
: ;  reversed  in 
iep,  462,  702. 
•ows  Kailtvay 
W.  Com.,  39 
State  ex  rel. 
i,oAlinn.  156, 

ct  court  from 
d  warehouse 
ide  of  operat- 
te  the  safety 
Objections 
made  by  way 
ht  to  enforce 


It.  Minneapolis  &*  St.  I..  K.  Co.  v.  Rail- 
road &^  II'.  Com.,  44  Minn,  336,  46  A'.  IK 
R.p.  559. 

(->.  Remedy  to  Enforce  Orders, 

liU.  Ill  KCiiortU.'*'— Tlic  petition  in  an 
a<:tii)n  to  enforce  an  order  of  railroad  cnm- 
iiussioncrs  alleged  that  plaintiffs  were  com- 
missioners; that  dcfcnd.int  was  a  common 
carrier;  that  an  association  having  in  view 
the  shipment  of  coal  over  defendant's  road 
applied  for  room  on  the  company's  side 
tracks  lor  the  erection  of  a  coal  shed,  which 
application  was  rejected  ;  that  the  associa- 
tion complained  to  the  commissioners,  who 
notified  defendant;  that  the  parties  ap 
peared  beiore  the  commissioners,  and  that, 
on  the  hearing,  an  order  was  made  granting 
the  application,  with  which  defendant  re- 
fused to  comply.  A  copy  of  the  complaint, 
attached  to  the  record,  did  not  show  for 
what  purpose  the  association  wanted  room 
for  the  coal-hotise,  nor  did  it  show  that  the 
association,  at  the  time  of  making  the  com- 
plaint, was  or  ever  proposed  to  be  a  shipper 
of  coal  over  defendant's  railroad,  nor  that 
defendant  had  any  land  to  grant  to  any  one ; 
neither  did  it  show  that  any  discrimination 
had  been  prtictised.  No  other  or  further 
complaint  was  filed.  Held,  that,  so  far  as 
the  record  showed,  no  cause  of  complaint 
existed  which  justified  the  commissioners  in 
making  their  order.  State  v.  Chicago,  M. 
&"  St.  P.  R.  Co.,  55  Am.  &*  Eng.  R.  Cas. 
487,  86  Iowa  641,  53  A^.  IV.  Rep.  323. 

Under  the  statute  which  provides  that  a 
stiitement  of  the  complaint  before  the  com- 
missioners shall  be  served  upon  the  defend- 
ant, matters  existing  outside  of  the  records 
as  made  before  the  commissioners  cannot 
be  pleaded  in  the  district  court  to  show  that 
the  complaint  made  before  the  board  was, 
in  fact,  well  grounded,  since  the  court  can- 
not, in  determining  whether  the  order  made 
was  just  and  reasonable,  resort  to  facts  which 
had  never  been  the  basis  of  complaint  before 
the  commissioners,  and  hence  not  passed 
upon  or  investigated  by  them.  The  de- 
fendant cannot  be  required  to  defend  against 
a  case  in  the  district  court  which  was  never 
presented  to  or  passed  upon  by  the  commis- 
sioners. State  V.  Chicago,  M.  &'  St.  P.  R. 
Co.,  55  Am.  6-  Etig.  R.  Cas.  487,  86  Iowa 
641,  53  A^.  W.  Rep.  323. 

*  Effect  of  recommendations  of  state  railway 
commissioners.  Enforcement  of  findings  by 
courts,  see  note,  49  Am.  &  Eno.  R.  Cas.  185. 


The  Regulation  of  Railways  Act,  1R73, 
§  26,  gives  the  commissioners  the  same 
power  U)  enforce  a  flecision  made  under 
section  8  as  to  enforce  any  writs  or  orders 
made  under  section  6,  Rortpatrick  R.  Co. 
V.  Caledonian  R.  Co.,  3  Ry.  &*  C.  T,  Cas. 
189, 

The  high  court  of  justice  has  no  original 
jurisdiction  with  regard  to  matters  within 
the  jurisdiction  of  the  commissioners,  but 
can  only  enforce  orders  made  by  the  latter, 
under  the  Uegtilation  of  Railways  Act, 
187^,  S  26,  Chatter  ley  Iron  Co,  v.  A'orth  Staf- 
fordshire  R.  Co.,  3  Ry.  &-  C.  T.  Cas.  238. 

Under  order  41  of  the  commissioners'  gen- 
eral orders  which  provides  that  if  either 
party  desire  to  appeal  to  a  superior  court 
from  the  decision  of  the  commissioners 
upon  a  question  fif  law  tliey  must  give  no- 
tice thereof  within  fourteen  days  from  the 
time  when  the  decision  was  communicated 
to  the  parties,  the  commissioners  held  that 
they  had  no  discretionary  power  to  enlarge 
the  time.  lierry  v.  London,  C.  &•  D,  R,  Co., 
4  Ry.  <S-  C.  T.  Cas.  310. 

80.  By  writ  of  iittacliiiiciit.— The 
railway  commissioners  have  power  to  issue 
a  writ  of  attachment  or  impose  a  penalty 
not  exceeding  ;^200  a  day  for  disobedience 
to  their  orders.  Toomerv.  London,  C.  &*  D. 
R,  Co.,  3  Ry.  6-  C.  T.  Cas.  79. 

31.  By  writ  of  iiian(Iuiiiii.s.  —  The 
remedy  provided  by  statute  for  the  enforce- 
ment of  orders  of  the  railroad  commission- 
ers by  mandamus  is  not  exclusive.  State  v. 
Mason  City&*  Ft.  D.  R.  Co..  SS  Am.&'Eng. 
R.  Cas.  73,  85  Iowa  516,  52  A'.  W.  Rep.  490. 
—Explaining  Boggs  v.  Chicago,  B.  &  Q. 
R.  Co.,  54  Iowa  435. 

Where  the  board  of  transportation  has 
investigated  charges  of  unjust  discrimina- 
tion against  a  railroad  company,  and  has 
found  such  unjust  discrimination  to  exist, 
and  ordered  the  railroad  company  to  re- 
duce its  rates  to  conform  to  a  schedule  pre- 
sented by  such  board,  which  order  the  com- 
pany neglects  to  comply  with,  mandamus  is 
a  proper  remedy  to  enforce  such  order,  and 
the  mention  of  the  district  court  in  the  stat- 
ute will  not  preclude  bringing  the  action  in 
the  supreme  court,  where  the  latter  court 
has  original  jurisdiction.  State  ex  rel.  v.  Fre- 
mont, E.  &>  M.  V.  R.  Co.,  32  Am.  &>  Eng. 
R.  Cas.  426,  22  Neb.  313,  35  N.  JV.  Rep.  118. 

The  attorney-general  is  the  law  officer  of 
the  state,  and  is  required  to  prosecute  or 
defend   any  case  in  the  supreme  court  in 


pp 


1150 


RAILWAY  COMMISSIONERS,  32-34. 


1   :■ 


n^k 


'■% 


1  "i" 

j, 

1  ', 

1 

■  i 

1  < 

'1 

r 

1 

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ii 

■ 

J 

; 

a 

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M 

J 

1    . 

m  '  I- 

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1  'rlil 

which  the  state  is  a  party  or  is  interested  ; 
therefore,  where  :i  majority  of  the  board  of 
transportation  of  the  state  adopt  a  resolu- 
tion asi<ing  the  supreme  court  to  continue 
a  case  pendmg  therein  against  a  railroad 
company  to  compel  such  company  to  con- 
form its  rates  and  charges  to  an  order  pre- 
viously made  by  said  board— //^W,  that  the 
board  had  no  authority  to  control  the  action 
of  the  attorney-general  in  the  management 
of  the  case.  Sfate  ex  rel.  v.  Fremont,  E.  &• 
M.  V.  R.  Co..  yi  Am.  &•  Etig.  A'.  Cas.  426. 
22  A''e6.  313.  35  i^V.   PK  Rep.  118. 

32.  By  fiidictnient  and  prosecu- 
tion.— Indictment  and  prosecution  in  the 
courts  of  ordinary  jurisdiction  are  not  the 
only  remedy  provided  for  the  infraction  of 
section  4  of  N.  Car.  Act  establishing  the 
commission.  Section  5  expressly  confers 
upon  the  commission  authority  to  make 
rules  and  regulations  to  prevent  such  infrac- 
tion.     Atlantic  Exp.  Co.  v.  Wilmington  &* 

W. R.  Co.,  Ill  JV.  Car. 463, 16  S.  E.  Rep.  393, 

33.  By  decree  iu  au  equitable  ac- 
tion.— It  was  msisted  that  the  courts  had 
no  jurisdiction  to  enforce  an  order  by  the 
commissioners  for  a  private  crossing,  on  the 
ground  that  their  jurisdiction  was  depend- 
ent upon  ordersof  the  commissioners  aflfect- 
ing  public  rights,  the  contention  being  that 
the  order  in  question  aflected  a  private  and 
not  a  public  right.  The  statute  provides 
that  "  the  ♦  *  *  district  courts  of  this  state 
shall  have  jurisdiction  to  enforce,  by  proper 
decrees,  injunctions,  and  orders,  the  rulings, 
orders,  and  regulations  fiffecting  public 
right,  made  *  *  *  by  the  board  of  rail- 
road commissioners."  Held,  that  the  court 
had  jurisdiction  to  enforce  the  order. 
State  V.  Mason  City  <S-  Ft.  D.  R.  Co.,  55 
Am.  &»  Eng.  R.  Cas.  73,  85  Iowa  516,  52 
N.  W.  Rep.  490. 

The  order  of  the  board  of  commissioners, 
as  the  result  of  its  investigation,  not  being 
the  judgment  or  conclusion  that  binds  the 
parties,  but  merely  the  basis  of  an  action 
wherein  the  rights  of  the  parties  are  inves- 
tigated and  determined,  it  is  immaterial 
whether  or  not  the  board  is  a  court  within 
the  meaning  of  the  constitution,  which  pro- 
vides that  "  the  judicial  department  shall 
be  vested  in  a  supreme  court,  district  court, 
and  such  other  inferior  courts  "  as  the  leg- 
islature may  establish.  State  v.  Mason  City 
fi-  Ft.  D.  R.  Co.,  55  Am.  6-  Eng.  R.  Cas. 
73,  85  loTva  516,  52  JV.  IV.  Rep.  490. 

Under  the  statute  giving  the  courts  juris- 


diction to  enforce  the  orders  of  the  railroad 
commissioners  by  "  equitable  actions  in  the 
name  of  the  state,"  it  will  not  be  held  that 
an  action  to  enforce  the  orders  of  the  com- 
missioners must  be  by  mandamus.  State  v. 
Mason  City  &>  Ft.  D.  R.  Co.,  55  Am.  &• 
Eng.  R.  Cas.  73,  85  Iowa  516,  52  TV.  W.  Rep. 
490. 

An  order  of  the  railway  commissioners 
relating  to  switchin;;  and  switching  rates 
will  not  be  enforced  by  a  decree  where  the 
enforcement  would  invove  a  change  in  the 
management  of  the  company  as  to  the 
classification  and  operation  of  its  trains. 
State  V.  Chicago,  M.  &-  St.  P.  R.  Co.,  88 
Iowa  445,  55  N.   W,  Rep.  331. 

34.  By  infliction  of  penalties.— A 
fine  of  not  less  than  $1000  nor  more  than 
$5000  for  a  first  violation  of  the  provisions 
of  a  railroad  commission  law,  and  of  not  less 
than  $5000  nor  more  t'lan  $10,000  for  a 
second  such  cftenss,  is  not  excessive  within 
the  meaning  of  Iowa  Constitution,  art.  i, 
§  17.  Burlington,  C.  R.  &•  N.  R.  Co.  v.  Dey, 
45  Am.  &-  Ettg.  R.  Cas.  391,  82  Iowa  312,  48 
N.  W.  Rep.  98. 

An  act  giving  authority  to  the  commis- 
sion to  prescribe  rules  and  regulations  for 
the  government  of  railroads,  and  providing 
that,  upon  failure  of  any  railroad  company 
to  make  full  and  ample  recompense  for  the 
violation  of  such  rules  and  regulations,  the 
commission  should  be  entitled  to  proceed 
in  the  courts,  after  notice,  to  enforce  the 
penalties  to  be  prescribed  therein  for  such 
violation,  is  valid  without  providing  in  de- 
tail the  methods  of  procedure.  Atlantic 
Exp.  Co.  v.  Wilmington  &^  W.  R.  Co.,  11 1 
A'.  Car.  463,  16  S.  E.  Rep.  393. 

So.  Car.  Gen.  St.,  §  1457,  provides  that  the 
railroad  commission  may  suggest  to  a  rail- 
road company  to  make  enlargements  and 
improvements  in  biations  and  station 
houses ;  and,  if  their  suggestions  are  not 
complied  with,  they  are  authorized  to  take 
such  legal  proceedings  as  they  may  deem 
expedient,  but  provides  no  f-ne  or  forfeiture 
or  mode  of  redress.  Held,  that  under  this 
section  the  commissioners  cannot  maintain 
a  suit  in  their  own  name  to  compel  a  rail- 
road company  to  establish  and  maintain 
a  station  house,  in  charge  of  a  competent 
agent,  at  a  certain  place  on  its  road  ;  that 
the  company,  if  liable  at  all,  is  liable  under 
section  1539,  which  provides  that  where  no 
penalty  has  been  provided  for  a  violation  of 
the  statute  the  penalty  shall  not  be  less 


RAILWAY  COMMISSIONERS,  35-38. 


1151 


of  the  railroad 
actions  in  the 
be  held  that 
rs  of  the  com- 
mus.  State  v. 
■"».,  55  Am.  (S- 
52  N.  W.  Rep. 

:ommissioners 
vitching  rates 
ree  where  the 
change  in  the 
ly  as  to  the 
of  its  trains. 
P.  R.   Co.,  88 

eiialties.— A 

nor  more  than 
the  provisions 
iind  of  not  less 
$io,ooo  for  a 
tcessive  within 
:itution,  art.  i, 
A'.  Co.  V.  Dey, 
\2  Iowa  312,48 

0  the  commis- 
regulations  for 

and  providing 
road  company 
mpense  for  the 
egulations,  the 
led  to  proceed 
to  enforce  the 
lerein  for  such 
oviding  in  de- 
iure.  Atlantic 
''V.  R.  Co.,  in 
(■ 

avides  that  the 
gest  to  a  rail- 
Jrgements  and 
and  station 
stions  are  not 
orized  to  take 
ley  may  deem 
le  or  forfeiture 
liat  under  this 
nnot  maintain 
compel  a  rail- 
and  maintain 
f  a  competent 
its  road  ;  that 
is  liable  under 
that  where  no 

a  violation  of 

1  not  be  less 


than  $1000,  to  be  recovered  by  the  state  by 
action  in  any  circuit  court,  to  be  brought 
by  the  attorney-general  upon  the  request  of 
the  commissioners.  Railroad  Com'rs  v. 
Columbia  &•  G.  R.  Co.,  30  Am.  <S-  Eng.  R. 
Cas.  177,  26  So.  Car.  353,  2  S.  E.  Rep,  127. 

35.  Deteriiiinatioii  of  reasonable- 
ness before  enforcement  of  order. 
— Before  the  court  will  enforce  the  running 
of  through  trains,  it  must  be  shown  that 
the  public  convenience  requires  them,  and 
that  it  can  reasonably  be  done.  In  re  Bar- 
ret, I  C.  B.  N.  S.  423.  26  L.  J.  C.  P.  83. 

The  courts  have  power  under  Iowa  Act 
of  1884,  ch.  133,  giving  them  power  to  en- 
force the  orders  of  the  railway  commis- 
sioners, to  determine  the  proper  construc- 
tion of  a  private  farm-crossing,  but  before 
such  orders  can  be  enforced  by  the  courts 
they  must  be  found  reasonable  and  just. 
State  v.  Chicago,  M.  <S-  St.  P.  R.  Co.,  86 
Iowa  304.  53  iV.  W.  Rep.  211.  State  w.  Des 
Moines  &•  Ft.  D.  R.  Co.,  49  Am.  &*  Eng.  R. 
Cas.  186,  84  Iowa  420,  51  A^.   IV.  Rep.  38. 

An  order  requiring  the  building  of  an 
overhead  farm-crossing  will  not  be  enforced 
where  it  appears  that  there  is  already  con- 
structed in  the  best  possible  manner,  in  a 
locality  not  dangerous,  a  good  grade  farm- 
crossing.  State  V.  Chicago,  M.  &•  St.  P.  R. 
Co.,  (Iowa)  53  A'^.  IV.  Rep.  323. 

In  order  to  enforce  an  order  at  the  in- 
stance of  the  commissioners  by  a  decree  of 
the  court,  the  court  and  the  commissioners 
must  concur  in  a  finding  of  the  facts.  The 
law  makes  such  a  proceeding  an  equitable 
one,  and  the  reasonableness  or  justness  of 
the  order,  based  upon  the  facts  found,  is  to 
be  determined  from  equitable  considera- 
tions. State  V.  Des  Moines  &>•  Ft.  D.  R.  Co.^ 
49  Am.  &•  Eng.  R.  Cas.  186,  84  Iowa  420,  51 
A^.  IV.  Rep.  38.— Quoting  Chicago  &  A. 
R.  Co.  V.  Schoeneman,  90  111.  258. 

36.  Action  to  recover  overcharges. 
— A  provision  in  a  statute  to  the  effect  that 
whenever  any  railroad  company  violates, 
refuses,  or  neglects  to  obey  any  lawful  order 
or  requirement  of  the  board,  it  shall  be  the 
duty  of  the  commission  to  enter  complaint 
in  the  circuit  court  of  the  state,  sitting  in 
equity,  and  that  such  court  shall  have  power 
upon  notice  to  the  company  to  proceed  to 
hear  and  determine  the  matter  speedily, 
does  not  authorize  such  a  proceeding  in 
order  to  enforce  the  repayment  of  money 
charged  on  freight  claimed  to  be  in  excess 
of  a  reasonable  charge;  a  claim  of  that 


character  can  only  be  enforced  by  a  com- 
mon law  action.  Railroad  Com'rs  v,  Oregon 
R.  &*N.  Co.,  35  Am.  <S-  Etig.  R.  Cas.  542,  17 
Oreg.  65,  19  Pac.  Rep.  702,  2  L.  R.  A.  195. 

37.  Petition  sliould  be  in  name  of 
state. —  Under  chapter  133  of  the  Acts  of 
the  Twentieth  General  Assembly,  Iowa,  a 
petition  by  the  commissioners  to  enforce 
an  order  mads  by  the  board  should  be  in 
the  name  of  the  state  and  not  in  the  name 
of  the  commissioners.  Smith  v.  Chicago, 
M.  &>  St.  P.  R.  Co.,  86  Iowa  202,  53  N.  IV. 
Rep.  128. 

But  under  section  16,  chapter  28  of  the 
Acts  of  the  Twenty-second  General  Assem- 
bly, Iowa,  a  petition  in  the  name  of  the 
commissioners  instead  of  the  state  may  be 
amended  so  as  to  make  the  state  the  plain- 
tiff. Smith  V.  Chicago,  M.  (S-  St.  P.  R.  Co., 
86  lojua  202,  S3  A^.  JV.  Rep.  128. 

7.  Interstate  Freights. 

38.  May  regulate  charges  within 
but  not  without  the  state.*— A  charge 
made  for  switching  cars  is  local ;  and  state 
railroad  commissioners  may  regulate  such 
charges,  though  the  cars  switched  contain 
iiiterstate  freights.  Chicago,  M,  &*  St,  P. 
R.  Co.  V.  Becker,  32  Fed.  Rep.  849. 

The  Cal.  board  of  railroad  commissioners, 
although  it  is  made  its  duty  by  the  state 
constitution  to  establish  rates  for  transpor- 
tation of  passengers  and  freights  by  all 
railroad,  canal,  and  other  transportation 
companies,  has  no  authority  to  interfere 
with  interstate  or  foreign  commerce.  Its 
power  is  limited  to  that  commerce  which  is 
purely  domestic.  Pacific  Coast  Steam-Ship 
Co.  \.  Railroad  Com'rs,  <)  Sawy.  {U.S.)  253, 
18  Fed.  Rep.  10. —  APPLIED  IN  Wells  v. 
Northern  Pac.  R,  Co.,  10  Sawy.  441,  23  Fed. 
Rep.  469.  Distinguished  in  State  ex  rel. 
V.  Chicago,  St.  P.,  M.  &  O.  R.  Co..  37  Am. 
&  Eng.  R.  Cas.  602,  40  Minn.  267,  41  N.  VV. 
Rep.  1047,  3  L.  R.  A.  238,  2  Int.  Com.  Rep. 
519. 

N.  H.  Laws  of  1883,  ch.  loi,  §  4,  authorize 
the  railway  commissioners  of  the  state  to  fi.x 
rates  within,  but  not  without,  its  boundaries. 
Merrill  V.  Boston  &•  L.  R.  Co.,  21  Am  &» 
Eng.  R.  Cas.  48,  63  A'.  H.  259. 

Whether  the  statutes  give  to  the  railroad 
commissioners  the  right  to  regulate  charges 
to  points  outside  of  the  state  is  a  question 

*  State  railroad  commissions  cannot  regulate 
interstate  commerce,  see  36  Am.  &  Eng.  R.  Cas. 
47,  aistr. 


1152 


RAILWAY   COMMISSIONERS,  39-41. 


of  jurisdiction  which  may  be  raised  at  any 
time.*  Railroad  Com'ts  v.  Charlotte,  C.  <&-  A. 
J\\  Co.,  26  Am.  6~'  ling.  R.  Cas.  29,  22  So. 
Car.  220. 

Tiie  railroad  commission  of  Soutli  Caro- 
lina cannot  regulate  passenger  fares  to  a 
point  in  another  state,  but  a  reguhuion  as 
to  the  hours  for  openmg  the  ticket  office 
is  not  a  matter  of  interstate  commerce. 
Hall  v.  South  Carolina  K.  Co.,  2^  So.  Car. 
564. — Quoting  Railroad  Com'rs  v.  Char- 
lotte C.  &  A.  R.  Co.,  22  So.  Car.  236. 

30.  Law  authorizing  coniiiiissioii- 
crs  to  regulate  interstate  commerce 
is  unconstitutional.— An  order  of  the 
board  of  railroad  commissioners  of  Iowa, 
that  a  railway  company  shall  so  revise  and 
alter  its  interstate  tariff,  so  far  as  relates  to 
freiglit  shipped  from  points  witliin  the  state 
to  points  without  the  state,  andfrpm  points 
outside  the  state  to  points  within  the  state, 
as  to  make  it  correspond  to  the  Iowa  local 
distance  tariff,  is  contrary  to  U.  S.  Const., 
art.  I,  §  8,  and  void.  State  v.  Chicago  <&* 
N.  IV.  R.  Co.,  27  Aw,  &-  Eng.  R.  Cas.  15, 
70  Jowa  162,  30  N.  IV.  Rep.  398. —  Fol- 
lowing Wabash,  St.  L.  &  P.  R.  Co.  v. 
Illinois,  118  U.  S.  557,  7  Sup.  Ct.  Rep.  4; 
Carton  v.  Illinois  C.  R.  Co.,  59  Iowa  148. 

The  General  Railroad  Law  of  South 
Carolina  being  intended  to  confer  upon  the 
railroad  commissioners  the  right  to  regu- 
late freight  upon  all  railroads  where  any 
part  thereof  is  within  the  state,  and  to  all 
stations  on  those  roads,  including  stations 
outside  of  the  state,  is  unconstitutional  as 
an  invasion  of  the  power,  exclusively  vested 
in  congress  by  the  constitution  of  the 
United  States,  to  regulate  interstate  com- 
merce. Railroad  Com'rs  v.  Charlotte,  C.  6r* 
A.  R.  Co.,  26  Am.  &•  Eng.  R.  Cas.  29,  22  Sol 
Car.  220. —  Quoting  Munn  v.  Illinois,  94 
U.  S.  135.— Quoted  in  Hallw.  South  Caro- 
lina R.  Co.,  25  So.  Car.  564;  Sternberger  v. 
Cape  Fear  &  Y.  V,  R  Co..  29  So.  Car.  510, 
7  S.  E.  Rep.  836. 

8.  Suits  against  Commissioners, 

40.  Suit  against  commissioners  is 
not  a  suit  against  tlie  state.— A  suit 
against  state  railroad  commissioners  to  re- 
strain the  enforcement  of  rates,  charges, 
and  regulations  prescribed  by  them  as  un- 
just and  unreasonable  is  not  a  suit  against 
the  state,  because  it  is  not  interested  pe- 
cuniarily, but  only  in  a  governmental  sense, 
and  consequently  the  eleventh  amendment 


to  the  constitution  of  tlie  United  States, 
inhibiting  suits  in  federal  courts  against  one 
of  the  states  by  citizens  of  another  state, 
has  no  application.  Reagan  v.  Farmers'  L. 
&*  T.  Co.,  58  Am.  &*  E)tg.  R.  Cas.  670.  154 
U.  S.  362,  14  Sup.  Ct.  Rep.  1047.  MclVhor- 
ter  V.  Pensacola  5-  A.  R.  Co.,  37  Am.  <3«» 
Eng.  R.  Cas.  566,  24  Fla.  417,  12  Am.  St. 
Rep.  220,  2  L.  R.  A.  504,  5  So.  Rip.  129. 

But  where  a  statute  prescribes  a  penalty 
for  violation  of  the  rates  fixed,  anfi  author- 
izes the  commissioners  to  institute  an 
action  in  the  name  of  the  state  to  recover 
the  penalty,  in  so  far  as  a  bill  seeks  to  enjoin 
them  from  doing  this,  it  is  in  effect  a  suit 
against  the  state.  Mc  IVhortcr  v.  Pensacola 
&*  A.  R.  Co.,  37  Am.  <S^  Eng.  R.  Cas.  566, 
24  Fla.  417,  12  Am.  St.  Rep.  220,  2  L.  R. 
A.  504,  5  So.  Rep.  129. 

41.  Suits  to  enjoin  enforcement  of 
unreasonable  regulations.*  —  (i)  /« 
general. — A  trust  company,  trustee  of  a 
railroad  mortgage,  which  shows  an  actual 
ownership  and  possession  of  the  mortgage 
securities  of  the  road,  which  it  alleges  are 
being  irreparably  injured  and  threatened  * 
with  destruction  by  the  tariffs  and  orders 
promulgated  by  a  state  railroad  commission, 
has  such  an  equitable  interest  in  the  fair 
earnings  of  the  railroad  as  entitles  it  to  sue 
to  restrain  the  railroad  commission  from 
putting  orcontinuingsuch  tariffs  and  orders 
in  effect.  Such  an  action  does  not  consti- 
tute a  suit  against  the  state.  Mercantile 
Trust  Co.  v.  Texas  <S-  P.  R.  Co.,  50  Am.  &* 
Eng.  K.  Cas.  559,  51  Fed.  Rep.  529.  — AP- 
PLYING Peik  V.  Chicago  &  N.  W.  R.  Co.,  94 
U.  S.  164;  Stone  v.  Farmers'  L.  &  T.  Co., 
n6  U.  S.  307,  6  Sup.  Ct.  Rep.  334.  Fol- 
lowing Pennoyer  v.  McConnaughy,  140  U. 
S.  I,  II  Sup.  Ct.  Rep.  699. 

In  a  suit  against  a  state  railroad  commis- 
sion to  restrain  the  enforcement  of  certain 
rates  and  regulations,  where  a  general  aver- 
ment that  the  tariff  established  is  unjust 
and  unreasonable  is  supported  by  the  ad- 
mitted facts  that  the  road  cost  far  more 
than  the  amount  of  the  stock  and  bonds 
outstanding;  that  such  stock  and  bonds  rep- 
resent money  invested  in  its  construction  ; 
that  there  has  been  no  waste  or  mismanage- 
ment in  the  construction  or  operation  ;  that 
supplies  and  labor  have  been  purchased  at 
the  lowest  possible  price  consistent  with  the 

*  Suits  against  raii.oad  commissioners,  see 
note,  37  Am.  k  Eng,  R.  Cas.  600. 


■^M 


f  the  United   States, 
ral  courts  ayainst  one 
ns  of  another  state. 
iVr^^rtw  V.  Farmers'  L. 
Eng.  R.  C.is.  670,  154 
Rep.  1047.     McWhor- 
/■    /i'.  Co.,  yj  Am.  &* 
El't-  417.  12  Am.  St. 
>4.  5  So.  Kt'p.  129. 
prescribes  a  penalty 
es  fixed,  and  author-   ' 
ers    to    institute    an 
the  state  to  recover 
a  bill  seeks  to  enjoin 
it  is  in  eflfect  a  suit 
IVhortcr  V.  Pensacola 
*-  Ettg.  K.  Cas.  566, 
>/.  Kep.  220,  2  Z.  R. 

II  <^iiforcciiieiit  of 
latioii8.*  —  (I)  In 

rnpany,  trustee  of  a 
ich  shows  an  actual 
on  of  the  mortgiige 
which  it  alleges  are 
red  and   threatened" 
e  tariffs  and  orders 
■ailroad  commission, 
interest  in  the  fair 
as  entitles  it  to  sue 
i   commission    from 
ich  tariffs  and  orders 
on  does  not  consti- 
1  state.     Mercantile 
'.  R.  Co.,  50  Am.  dw 
^ed.  Rep.  529.— Ap- 
'&N.  W.  R.  C0..94 
rmers"  L.  &  T.  Co., 
t.  Rep.  334.     FoL- 
:Connaughy,  140  U. 

;e  railroad  commis- 
rcement  of  certain 
lere  a  general  aver- 
ablishcd  is  unjust 
sported  by  the  ad- 
lad  cost  far  more 
t  stock  and  bonds 
ock  and  bonds  rep- 
I  its  construction; 
isteormismanage- 
or  operation ;  that 
been  purchased  at 
:onsistent  with  the 


commissioners,   see 
i.  600, 


RAILWAY   COMMISSIONERS,  42. 


1153 


successful  operation  of  the  road  ;  that  the 
rates  voluntarily  fixed  by  the  company  have 
been  for  ten  years  steadily  decreasing  until 
the  aggregate  decrease  has  been  more  than 
fifty  per  cent. ;  that  under  the  rates  thus 
voluntarily  established  the  stock,  which 
represents  two  fifths  of  the  value,  liao  never 
received  anything  in  the  way  of  dividends, 
and  that  for  the  last  three  years  the  earnings 
above  operating  expenses  have  been  in- 
sufliicient  to  pay  the  interest  on  the  bonded 
debt,  and  that  the  proposed  tariff,  as  en- 
forced, will  so  diminish  the  earnings  that 
they  will  not  be  able  to  pay  one  half  the 
interest  on  the  bonded  debt  above  the  op- 
erating expenses— such  averment,  so  sup- 
ported, in  the  absence  of  any  satisfactory 
showing  to  the  contrary,  will  sustain  a  find- 
ing that  the  proposed  tariff  is  unjust  and 
unreasonable,  and  will  also  support  a  decree 
restraining  the  enforcement  thereof.  Rea- 
gan V.  Farmers  L  &•  T.  Co.,  58  Am.  &* 
Eng.  R.  Cas.  670,  154  U.  S.  362,  14  Sup.  Ct. 
Rep.  1047. 

Where  the  law  invests  an  officer  with 
discretion  in  the  performance  of  an  act,  the 
courts  will  not  interfere  with  or  control  his 
action  by  injunction.  If  injustice  is  done 
by  his  action,  some  other  remedy  must  be 
sought.  The  statute  gives  these  commis- 
sioners discretion  in  making  rates  for  rail- 
roads, and  they  are  entitled  to  the  benefit 
of  this  rule.  Mc  IVhorter  v.  Pensacola  &• 
A.  R.  Co.,  yj  Am.  &"  Eng.  R.  Cas.  566,  24 
Fla.  417,  12  Am.  St.  Rep.  220,  2  L.  R.  A. 
504.  5  So.  Rep.  129. 

Whether  rates  made  by  the  commission- 
ers are  reasonable  and  just  or  not,  even  if 
subject  to  judicial  control,  is  not  open  to 
inquiry  in  a  suit  to  enjoin  their  discretionary 
action.  Mc  IVhorter  v.  Pensacola  &•  A.  R. 
Co.,  37  Am.  <&-  Eng.  R.  Cas.  566,  24  Fla.  417, 
12  Am.  St.  Rep.  220,  2  L.  R.  A.  504,  5  So. 
Rep.  129. 

In  a  declaration  in  prohibition  by  a  rail- 
way company  agairst  the  railway  commis- 
sioners it  appeared  that  a  complaint,  under 
the  Railway  and  Canal  Traffic  Act,  1854,  had 
been  made  to  the  commissioners  against  the 
company,  and  that  the  commissioners  pro- 
posed to  order  certain  things  to  be  done  by 
the  company  in  respect  of  such  complaint, 
and  that  the  company  denied  the  jurisdic- 
tion of  the  conimissioners  to  hear  and  de- 
termine the  complaint  or  any  part  of  it,  and 
prayed  for  a  writ  to  prohibit  the  commis- 
sioners "from   further  proceeding  in  any 


way  touching  the  premises  before  them." 
The  court  being  of  opinion  that  the  com- 
missioners had  jurisdiction  over  the  general 
matter  of  the  complaint,  and  that  they  had 
jurisdiction  to  order  some  of  the  things  they 
proposed  ordering,  though  not  to  order  the 
olhers— /telil  (Brett,  L.J.,  dissenting),  that 
a  general  demurrer  by  the  commissioners 
to  the  whole  declaration  should  be  allowed. 
Sout/i  Eastern  R.  Co,  v.  Railway  Com'rs,  L. 
R.  6  Q.  B.  D.  586,  50  L.  J.  Q.  B.  201,  44  /.. 
T.  203  ;  reversing  L.  R.  5  Q.  B.  ZP.  217,  49 
L.  J.  Q.  B.  273,  41  L.  T.  760,  28  W.  R.  464, 

44  y.  P-  362. 

(2)  Jurisdiction  of  federal  courts.  *  —  A 
United  States  circuit  court  has  jurisdiction 
of  a  bill  filed  on  behalf  of  citizensof  Europe 
and  of  other  states,  to  enforce  equitable 
rights,  and  to  prevent  action  by  railroad 
commissioners  wliicli  may  result,  as  is  al- 
leged, in  serious  injury  to  those  rights.  It 
is  not  necessary  to  wait  until  the  commis- 
sioners have  put  the  law  in  full  operation. 
Pick  V.  Chicago  &^  N.  IV.  R.  Co.,  6  Biss. 
([/.  S.)  177. 

The  fact  that  the  commissioners  assume 
to  act  under  a  constitutional  statute  will 
not  oust  the  federal  courts  of  jurisdi'-lion 
to  restrain  their  excessive  and  illegal  acts. 
Reagan  v.  Farmers'  L.  &*  T.  Co.,  5S  Am. 
&>  Eng.  R.  Cas.  670,  154  [/.  S.  362,  14  Sup. 
Ct.  Rep.  1047. 

Texas  Act  of  April  3,  1891,  §  6,  establish- 
ing a  railroad  commission  and  allowing  any 
dissatisfied  railroad  company  or  other  party 
in  interest  to  file  a  petition  against  the 
commissioners  in  a  "court  of  competent 
jurisdiction  in  Travis  county,  Texas,"  does 
not  confine  the  application  for  relief  to  a 
state  court,  but  allows  the  filing  of  a  petition 
in  a  federal  court  which  includes  such  coun- 
ty within  its  circuit.  Reagan  v.  Farmers' 
L.  <S-  T.  Co.,  58  Am.  &*  Eng.  R.  Cas.  670, 
154  CI.  S.  362,  14  Sup.  Ct.  Rep.  1047. 

IV.  COMFEKSATIOir. 

412.  Compelling^  railway  companies 
to  pay  salaries  of  commissioners.— 

Kan.  Act  of  1883,  ch.  124,  §4,  providing  for 
raising  a  fund  for  the  payment  of  salaries 
and  current  expenses  of  the  state  railroad 
commissioners  and  their  secretary,  by  tax- 
ing the  property  of  railroad  companies  only, 
is  in  violation  of  the  state  constitution,  art. 

*  Jurisiiiction  of  federal  court  to  restrain  en- 
forcement of  rates  fixed  by  state  railroad  com- 
missioners, see  note,  3  L.  R.  A.  238. 


|l  ! 


1154  RAILWAY  COMMISSIONERS,  43.— RAPID  TRANSIT  ACTS,  1. 


H 


r, 


i< 


II,  §  I,  which  provides  that  "the  legislature 
shall  provide  for  a  uniform  and  equal  rate 
of  assessment  and  taxation."  Atcltison,  T. 
&•  S.  F.  A'.  Co.  V.  Hojve,  32  Ka/i.  737,  5  Pac. 
Kep.  397.— Distinguished  in  Columbia  & 
G.  R.  Co.  V.  Gibbes,  24  So.  Car.  60. 

Under  the  New  York  statute  of  1882. 
which  provides  that  the  salaries  and  ex- 
penses of  the  board  of  railroad  commission- 
ers shall  be  apportioned  among  the  several 
railroad  companies,  partly  in  proportion  to 
net  income  and  partly  "  in  proportion  to  the 
length  of  the  main  track  or  tracks  on  road," 
where  several  tracks  are  laid  between  the 
same  points,  "  the  length  "  is  not  the  quan- 
tity of  numbers  of  miles  of  rail  laid,  but  the 
distance  between  the  terminal  points.  Peo- 
ple ex  rel.  v.  Chapin,  34  Am.  &*  Eng.  K. 
Cas.  136,  106  N.  Y.  265,  12  A'.^".  J\ep.  595,  8 
N.  V.  S.  R.  678 ;  reversing  42  Hitn  239,  3  N. 

y.  s.  R.  728. 

The  South  Carolina  General  Railroad  Act 
of  1 88 1,  giving  to  a  state  officer  the  supervi- 
sion of  all  the  railroads  in  the  state,  and  im- 
posing the  burden  of  paying  his  salary  and 
expenses  upon  them,  is  valid,  under  the  va- 
rious statutory  and  constitutional  provisions, 
as  an  amendment  of  the  charter  of  the  plain- 
tifl  company.  Charlotte,  C.  &•  A.  R.  Co.  v. 
Gibbes,  31  Am.  6-  Eng.  R.  Cas.  464,  27  So. 
Car.  385,  4  S.  E.  Rep.  49. 

An  act  requiring  all  the  railroad  compa- 
nies in  the  state  to  contribute  to  the  salary 
and  expenses  of  the  state  railroad  commis- 
sioner is  not  invalid  as  contravening  a  con- 
stitutional provision  requiring  that  all  taxa- 
tion shall  be  uniform.  Charlotte,  C.  &•  A. 
P.  Co.  V.  Gibbes,  31  Am.  &»  Eng.  R.  Cas. 
464.  27  So.  Car.  385,4  S.  E.  Rep.  49. 

43.  Salaries  do  not  cease  while 
conimissioiiers  nre  restrained  from 
perforniinf;  their  duties.—  The  Tenn. 
statute  which  creates  a  railroad  commission 
provides  that  each  commissioner  shall  re- 
ceive a  salary  of  $2000  annually,  "  unless 
restrained  by  law  from  the  performance  of 
their  duties."  Held,  that  their  salaries 
■would  not  cease  upon  the  suing  out  by  sev- 
eral railroad  companies  of  temporary  injunc- 
tions against  the  performance  of  their  func- 
tions, so  far  as  those  roads  were  concerned, 
•which  injunctions  the  courts,  upon  motion 
and  argument  for  the  purpose,  declined  to 
dissolve,  but  had  not  made  perpetual  by 
final  decrees.  Savage  v.  Pickard,  22  Am.  &* 
Eng.  R.  Cas,  490,  14  Lea  (Tenn.)  46. 


RAILWAYS  CLAUSES  ACT. 

Joint  use  of  stations  under,  see  Stations  and 
Depots,  148. 


RAPID  TRANSIT  ACTS. 

Construction  of  elevated  railways  under,  see 
Ei.EVATEi)  Railways,  0-25. 

1.  How  construed,  generally.  —  N. 

Y.  General  Surface  Act  was  not  intended  to, 
and  does  not,  interfere  with  the  rights  of 
any  street-surface  railroad  company  organ- 
ized before  its  passage  under  the  Rapid 
Transit  Act.  It  only  prohibits  the  construc- 
tion of  surface  roads  by  corporations  there- 
after organized.  The  saving  clause  in  the 
General  Surface  Act  protects,  not  only  con- 
summated and  perfected  rights  of  a  company 
theretofore  organized,  but  such  rights  as  the 
company  had,  although  inchoate  and  sub- 
ject to  the  performance  of  further  condi- 
tions; and  by  the  subsequent  performance 
of  the  conditions  those  rights  arc  perfected. 
(Earl,  J.,  dissenting.)  New  York  Cable  Co. 
v.  Mayor,  etc.,  of  N.  Y.,  104  N.  Y.  i,  10  N. 
E.  Rep.  332,  4  A'^.  Y.S.  R.  308  ;  affirming 4,0 
Hun  I. 

The  provision  of  the  act  of  1870,  ch.  135, 
authorizing  the  making  and  filingof  amended 
certificates  where  an  informality  exists  in  the 
original  certificate  of  incorporation  of "  any 
corporation  organized  under  any  general  act 
for  the  formation  of  companies,"  and  declar- 
ing that  "upon  the  making  and  filing  of 
such  amended  certificate  the  said  corpora- 
tion shall,  for  all  purposes,  be  deemed  and 
taken  to  be  a  corporation  from  the  lime  of 
filing  such  original  certificate,"  does  not  ap- 
ply to  the  Rapid  Transit  Act  of  1875,  ch. 
dab.  In  re  New  York  Cable R.  Co.,  109  N, 
Y.  32, 11  N.  E.  Rep.  882,  14  A^.  Y.  S.  R.  51 ; 
affirming  45  Hun  153,  9  A''.  Y.  S.  R.  836. 

Under  N.  Y.  Rapid  Transit  Act  no  power 
is  given  to  the  commissioners  appointed  by 
the  mayor  of  a  city,  after  they  have  once 
completed  articles  of  association  and  deliv- 
ered the  certificate  in  attempted  compliance 
with  the  act,  to  reconvene  and  amend  or  re- 
form either  articles  or  certificate  ;  the  deliv- 
ery of  the  certificate  terminates  their  duties 
and  ends  their  office.  In  re  New  York 
Cable  R.  Co.,  109  A^.  Y.  32,  15  A'.  £".  Rep.  882, 
14  A^.  Y.  S.  R.  51 ;  affirming  45  Hun  153,  9 
N.  Y,  S.  R.  836. 

And  the  provisions  of  tne  act  are  not  vio- 
lated or  rendered  ineffectual  by  the  grant  of 
a  conditional  instead  of  an  absolute  franchise 


^'M' 


ACTS,  1. 


RAPID    TRANSIT    ACTS,  2, 3. 


1155 


ES  ACT. 

;e  Stations  and 

ACTS. 

grays  under,  see 

S5. 

nerally.  —  N. 

lot  intended  to, 
the  rights  of 
rompany  organ- 
der  the  Rapid 
its  the  construc- 
)orations  there- 
g  clause  in  the 
s,  not  only  con- 
its  of  a  company 
jch  rights  as  the 
:hoate  and  sub- 
f  further  condi- 
:nt  performance 
ts  are  perfected. 
VorJt  Cable  Co. 
\N.  Y.  i.ioN. 
o8 ;  affirming  \o 

of  1870,  ch.  135, 
iilingof  amended 
ality  exists  in  the 
poration  of "  any 
rany  general  act 
lies,"  and  declar- 
ig  and  filing  of 
he  said  corpora- 
,  be  deemed  and 
from  the  lime  of 
ite,"  does  not  ap- 
Act  of  1875,  ch. 
leR.  Co.,  109  N. 
\N.  Y.S.  R.  51; 

Y.  S.  R.  836. 
sit  Act  no  power 
lers  appointed  by 

they  have  once 
iation  and  deliv- 
npted  compliance 
and  amend  or  re- 
ficate ;  the  deliv* 
nates  their  duties 
n  re  New  York 
\SN.E.Rep.U2, 
mgAlHun  153,9 

le  act  are  not  vio- 
al  by  the  grant  of 
absolute  franchise 


to  an  elevated  railroad  company,  or  by  the 
imposition  of  conditions  subsequent.  In  re 
Atlantic  Ave.  El.  R.  Co.,  136  N.  Y.  292,  32 
N.  E.  Rep.  771.49  N^  Y.  S.  R.  389  ;  affirm- 
ing 58  Hun  609,  35  iV.  Y.  S.  R.  371,  12  A^. 
Y.  Supp.  228. 

2.  Powers  of  coniinissioiiers  as  to 
route,  etc. — On  a  petition  presented  by  a 
rapid  transit  company  created  by  N.  Y.  Act 
of  1872,  ch.  833,  for  the  appointment  of 
commissioners  to  determine  the  amount  to 
be  paid  to  the  city  of  New  York  for  the  use 
of  streets,  it  was  stated  that  it  was  "  the 
intention  of  the  company  in  good  faith  to 
construct,  operate,  and  maintain  a  railroad 
on  ♦''  line  mentioned  in  said  act,"  whicii 
was  denied  in  the  city's  answer.  Held,  tiiat, 
after  the  company  had  offered  evidence  on 
the  question  of  intent,  it  was  error  to  ex- 
clude evidence  offered  by  the  city  tending 
to  show  the  inability  of  the  company  to 
build  the  road,  and  other  circumstances 
tending  to  controvert  the  expressed  inten- 
tion. In  re  Metropolif.in  Transit  Co.,  ill 
A^.  Y.  588,  x^N.  E.  Rep.  645,  20  A'.  Y,  S.  R. 
516;  affirming  48  Hun  620,  15  A^.  Y.  S.  R. 
977,  I  A'.  Y.  Supp.  114. 

The  above  act  named  the  streets  over 
which  the  main  line  of  such  road  would 
pass ;  therefore,  the  commissioners  had  no 
power  to  name  such  streets,  or  change  or 
omit  any  portion  of  the  line  as  located  by 
the  .act.  In  re  Metropolitan  Transit  Co.,  1 1 1 
A^.  Y.  588,  19  A^  E.  Rep.  645,  20  A^.  Y.  S.  R. 
516  affirming  48  Hun  620,  1$  N.  Y.  S.  R. 
977,  I  A'^   Y.  Supp.  114. 

And  where  the  location  of  the  main  line 
of  such  road  cannot  be  sustained,  then  all 
branches  fall  with  it.  In  re  Metropolitan 
Transit  Co..  ii.i  A^.  Y.  588,  19  A'.  E.  Rep. 
645,  20  A'^  K.  S.  R.  516;  affirming  4S  Hun 
620,  15  A^.  Y.  S.  R.  g77.  i  N.  Y.  Supp.  114. 

Commissioners  appointed  under  New 
York  Rapid  Transit  Act  of  1875,  ch.  606,  to 
determine  upon  the  necessity  of  steam  rail- 
ways, may  authorize  different  railways,  but 
cannot  organize  more  than  one  company  to 
operate  them.  People  ex  rel.  v.  Hoe,  20 
Hun  (N.  Y.)  26. 

3.  general  plan  of  construc- 
tion.— Under  the  provision  of  N.  Y.  Rapid 
Transit  Act,  §  5,  requiring  the  mayors  com- 
missioners to  fix  the  plan  or  plans  for  the 
construction  of  the  railway  or  railways,  it  is, 
at  least,  essential  that  they  shall  determine 
whether  the  contemplated  road  shall  be  an 
underground,  overground,  or  surface  road. 


and  a  failure  on  their  part  to  determine  this 
question  is  a  failure  to  comply  with  one  of 
the  conditions  precedent  to  the  acquisition 
of  corporate  power.  New  York  Cable  Co.  v. 
Mayor,  etc.,  of  N.  Y.,  \o\N.  Y.  i,  10  A^.  E, 
Rep.  332,  4  A^.  Y.  S.  R.  308  ;  affirming  40 
Hun  I.— Quoted  IN  Re  Rapid  Transit  R. 
Com'rs,  45  N.  Y.  S.  R.  810. 

New  York  Rapid  Transit  Act  of  1891,  §  4, 
provides  that  the  commissioners  shall  pre- 
pare "  a  general  plan  of  construction  "  so  as 
to  show  the  general  mode  of  operation,  and 
to  contain  such  details  as  to  the  manner  of 
construction  as  may  be  necessary  to  show 
the  extent  of  encroachment  upon  any  street 
or  avenue.  Held,  that  such  plans  need  not 
show  the  precise  amount  of  encroachment, 
or  the  precise  locality  where  the  encroach- 
ment may  occur ;  but  a  plan  giving  prop- 
erty owners  notice  of  the  general  character 
of  the  encroachments  is  sufficient.  /;/  re 
Rapid  Transit  R.  Com'rs,  18  A^.  Y.  Supp. 
320,  45  A'^.  Y.  S.  R.  Sio.— Following  In  re 
Kings  County  El.  R.  Co.,  112  N.  Y.  47,  19 
N.  E.  Rep.  654.  Quoting  and  follow- 
ing New  York  Cable  Co.  t.  Mayor,  etc.,  of 
N.  Y.,  lot  N.  Y.  I,  10  N.  E.  Rep.  332. 

The  report  and  plans  of  such  road  show 
distinctly  upon  the  south  side  of  the  Harlem 
river  as  to  what  portion  of  the  road  is  to  be 
a  viaduct,  tunnel,  or  depressed  structure,  and 
gives  the  general  dimensions  of  the  tunnel 
and  its  location,  and  the  width  and  height ; 
and  as  to  that  part  which  is  to  be  upon  a 
viaduct  the  maps  indicate  the  general  char- 
acter of  the  structure  which  is  to  be  erected 
in  different  locations.  Held,  sufficient  as  to 
that  portion  of  the  road.  In  re  Rapid  Tran- 
sit R.  Com'rs,  18  A^.  Y.Supp.  320,  45  A^.  Y. 
S.  R.  810. 

As  to  the  general  plans  of  the  road  be- 
yond the  Harlem  river,  it  is  sufficient  if  they 
disclose,  as  far  as  reasonably  practicable,  to 
what  extent  the  streets  are  to  be  encroached 
upon.  !t  appears  by  the  act  of  1890,  ch.  545, 
that  the  grades  of  streets  and  avenues  be- 
yond the  Harlem  river  have  not  been  fixed 
and  are  not  required  to  be  fixed  for  two  and 
a  half  years  from  Jan.  i,  1891,  and  the 
commissioners  are  not  required  to  show 
what  is  impossible  before  such  streets  and 
avenues  are  graded.  In  re  Rapid  Transit 
R.  Com'rs,  18  M  Y,  Supp.  320.  45  N.  Y.  S. 
R.  810. 

It  was  further  objected  that  the  precise 
height  of  the  viaduct  or  depressed  struc- 
ture at  each  particular  place  is  not  shown. 


1156 


RAPID  TRANSIT   ACTS,  4,  5. 


)  ' 


I'f  ' 


ill  '' 


'mn. 


■t^ 


Held,  that  the  plan  is  only  a  general  one, 
and  that  it  is  impossible  to  show  the  same 
without  the  details  of  an  engineer's  specifi- 
cations, which  are  not  required.  In  re 
Rapid  Transit  R.  Com'rs,  i8  N.  Y.  Sitpp. 
320,  45  N.  Y.  S.  R,  810. 

It  is  not  necessary  that  the  report  should 
locate  the  stations  along  the  road  ;  and  it  is 
not  defective  for  failing  to  do  so.  /«  re 
Rapid  Transit  R.  Com'rs,  18  N.  Y.  Sitpp. 
320,  45  A'.  Y.  S.  R.  810. 

An  objection  that  on  Fourth  avenue 
above  Fourteenth  street,  and  on  all  streets 
above  Thirty-fourth,  the  manner  of  con- 
struction is  left  wholly  undetermined  is  en- 
tirely unfounded.  The  report  shows  that 
the  method  of  construction  in  these  locali- 
ties is  by  excavations  from  the  surface  and 
underground  tunnel,  which  in  the  main 
would  not  disturb  the  surface  of  the  streets. 
In  re  Rapid  Transit  R.  Com'rs,  \8  N.  Y. 
Supp.  320.  45  N.  Y.  S.  R.  810. 

4. time  within  which  road  sliall 

be  built. — The  requirement  of  New  York 
Rapid  Transit  Act  of  1875,  ch.  606,  that  the 
commissioners  shall  fix  the  time  in  which 
the  work  shall  be  constructed,  is  not  suffi- 
ciently complied  with  by  fixing  a  time  after 
the  required  consents  of  property  owners 
shall  have  been  obtained.  New  York  Cable 
R.  Co.  V.  Forty-second  St.,  M.  <S-  St.  N.  A. 
R.  Co.,  11  Daly  (N.  Y.)  118. 

The  intent  of  the  provision  of  section  6,  re- 
quiring the  commissioners  appointed  by  the 
mayor  of  a  city  to  fix  the  time  within  which 
the  proposed  railway  or  railways,  or  portions 
thereof,  shall  be  constructed,  is  to  limit  the 
corporation  in  respect  only  to  time  during 
which  it  is  possible  for  it  to  prosecute  the 
work,  excluding  time  when  lega)  barriers 
to  such  prosecution  exist.  New  York  Cable 
Co.  V.  Mayor,  etc.,  of  N.  Y.,  104  N.  Y.  i,  10 
N.  E.  Rep.  332,  4  N.  Y.  S.  R.  308 ;  affirm- 
ir^  40  Hun  i. 

The  commissioners  appointed  by  the 
mayor  of  New  York  specified  a  time  within 
which  each  of  twenty-nine  diflerent  routes 
should  be  completed,  but  provided  that  the 
time  should  begin  to  run  from  the  date  of 
obtaining  the  requisite  consent  of  property 
owners  and  of  the  local  authorities,  or,  in 
case  of  failure  to  procure  such  consent, 
from  the  date  of  the  confirmation  of  the 
report  of  commissioners  appointed  by  the 
court ;  and  also  provided  that  the  time 
unavoidably  consumed  by  the  pendency  of 
legal   proceedings,  or  the   interference  of 


public  authorities,  or  the  omission  to  open 
or  grade,  shall  not  be  deemed  a  part  of  the 
time  limited.  Held,  that  this  was  a  sub- 
stantial compliance  with  the  act.  New 
York  Cable  Co.  v.  Mayor,  etc.,  of  N.  Y.,  104 
N.  Y.  I.  10  N.  E.  Rep.  332,  4  A^.  Y.  S.  R. 
308  ;  affirming  40  Hun  \ . 

The  articles  of  association,  framed  by  the 
mayor's  commissioners,  instead  of  provid- 
ing, as  required  by  said  act  (section  7),  for 
the  release  and  forfeiture  to  the  supervisors 
of  the  county  of  all  the  rights  and  franchises 
acquired  by  the  corporation,  in  case  the  pro- 
posed railways  were  not  completed  in  time, 
provided  that  in  case  the  several  portions 
of  such  railways  were  not  completed  each 
within  the  time  limited  the  rights  and 
franchises  "  for  and  as  to  any  portion  of 
such  railway  or  railways  not  so  completed" 
should  be  released  and  forfeited.  Held,  that 
»his  was  a  material  departure  from  the  re- 
quirements of  the  act ;  that  the  provision 
should  have  been  for  the  release  and  for- 
feiture of  all  the  rights  and  privileges  ;  that 
the  provision  was  an  attempt  to  override 
the  action  of  the  legislature  in  refusing  to 
make  the  amendment  to  the  Rapid  Transit 
Act  of  1882,  ch.  393,  §  2,  applicable  to  the 
city  of  New  York  by  incorporating  the  sub- 
stance of  the  amendment  in  the  articles  of 
association.  New  York  Cable  Co.  v.  Mayor, 
etc.,  of  N.  Y.,  104  N.  Y.  i,  10  N.  E.  Rep. 
332,  4  N.  Y.  S.  R.  308  ;  affirming  40  Hun  i. 
—Distinguished  in  Re  Washington  St.,  A, 
&  P.  R.  Co.,  115  N.  Y.  442,  22  N.  E.  Rep. 
356.  26  N.  Y.  S.  R.  504.  Followed  in  Re 
Kings  County  El.  R.  Co.,  105  N.  Y.  97,  13 
N.  E.  Rep.  18,  7  N.  Y.  S.  R.  186.  7  Cent. 
Rep.  232  ;  IN  Re  New  York  Dist.  R.  Co., 
107  N.  Y.  42.  Quoted  and  followed  in 
Re  Rapid  Transit  R.  Com'rs,  18  N.  Y. 
Supp.  320. 

As  there  was  no  general  law  declaring  a 
forfeiture  or  requiring  a  release  to  the  su- 
pervisors, a  compliance  with  the  provision 
was  necessary  to  carry  out  the  legislative 
intent,  and  the  failure  to  comply  was  a  fatal 
defect  in  the  articles.  Ne^u  York  Cable  Co. 
v.  Mayor,  etc.,  of  N.  K,  104  A'.  K  i,  10  N. 
E.  Rep.  332,  4  N.  Y.  S.  R.  308 ;  affirming 
40  Hun  I. 

6. mode  of  operation,  motive 

power,  etc. — N.  Y.  Act  of  1875,  known  as 
the  Rapid  Transit  Act,  ch.  606,  prior  to  the 
passage  of  the  General  Surface  Act  of  1884, 
ch.  252,  authorized  the  formation  of  com- 
panies to  construct  street  railways  on  the 


ission  to  open 
a  part  of  the 

is  was  a  sub- 
le    act.      i\V«/ 

.of  N.  v..  104 
N.    y.  S.  A'. 

framed  by  the 

ead  of  provid- 

(section  7),  for 

he  supervisors 

and  franchises 

n  case  tliepro- 

pleted  in  time, 

vera!  portions 

ompleted  each 

he    rights    and 

any  portion  of 

so  completed" 

ted.    HM,  that 

re  from  the  re- 

the  provision 

elease  and  for- 

privi leges ;  that 

ipt  to   override 

:  in  refusing  to 

e  Rapid  Transit 

pplicable  to  the 

lorating  the  sub- 

n  the  articles  of 

6/e  Co.  V.  A  fay  or, 

,  10  N.  E.  Rep. 

<-mt'ng  40  Hun  i. 

ashington  St.,  A. 

!,  22  N.  E.  Rep. 

DLLOWED  IN    Re 

[05  N.  Y.  97,  13 

R.  186.  7  Cent. 

rk  Dist.  R.  Co.. 

D  FOLLOWED  IN 

.m'rs,    18   N.    Y. 

law  declaring  a 
:lease  to  the  su- 
th  the  provision 
t  the  legislative 
imply  was  a  fatal 
'  York  Cable  Co. 
4  A'.  Y.  I,  10  A'. 
?.  308;  affirming 

ation,  motive 

f  1875,  known  as 
606,  prior  to  the 
face  Act  of  1884, 
irmation  of  corn- 
railways  on  the 


RAPID  TRANSIT   ACTS,  6,  7. 


1157 


surface,  to  be  operated  by  any  power  other 
than  animal.  (Earl,  J.,  dissenting.)  New 
York  Cable  Co.  v.  Mayor,  etc.,  of  W  Y.,  104 
A^.  Y.  I,  10  A'.  E.  Rep.  332.  4  A^  Y.  S.  R. 
308;  affirming  ip  Hun  t.— DISTINGUISHED 
IN  Re  Kings' County  El.  R.  Co.,  112  N.  Y. 
47.  19  N.  E.  Rep.  654,  20  N.  Y.  S.  R.  336. 
Reviewed  in  Re  Union  El.  R.  Co.,  112  N. 
Y.  61, '19  N.  E.  Rep.  664,  20  N.  Y.  S.  R.  49S, 
2  L.  R.  A.  359,  51  Hun  644. 

Objection  was  made  that  a  report  of  com- 
missioners under  the  Rapid  Transit  Act 
of  1891  was  not  sufficiently  definite  as  to 
the  mode  of  operation  of  the  road.  The 
language  of  the  act  is  that  such  general 
plan  shall  show  the  general  mode  of  opera- 
tion. The  language  of  the  report  is  that 
the  cars  shall  be  moved  by  motors  capable 
of  a  uniform  speed  for  long  distances,  of  not 
less  than  forty  miles  per  hour,  exclusive  of 
stops,  the  power  being  supplied  by  some 
method  not  requiring  combustion  within 
tunnels,  which  would  exclude  the  present 
cable  and  locomotive  now  operated.  Held, 
that  the  description  was  sufficient.  In  re 
Rapid  Transit  R.  Cotn'rs,  18  A^,  V.  Supp. 
320,  45  A^.  Y.  S.  R.810. 

6.  CoiLsent  of  abutting  owners.— 
Under  New  York  Rapid  Transit  Act  of  1891, 
it  is  not  necessary  that  the  general  plan 
prepared  by  the  commissioners  should  be 
presented  to  each  property  owner  before  he 
is  applied  to  for  his  consent.  It  is  sufficient 
if  public  notice  has  been  given,  and  the 
property  owners  might  examine  the  general 
plan  and  the  maps  in  the  proper  office.  /« 
re  Rapid  Transit  R.  Com'rs,  45  N.  Y.  S.  R. 
810,  18  A^.  Y.  Supp.  320.— Quoting  New 
York  Cable  Co.  v.  Mayor,  etc.,  of  N.  Y.,  104 
N.  Y.  I,  4  N.  Y.  S.  R.  308.  Reviewing 
In  re  Kings  County  El.  R.  Co.,  112  N.  Y. 
47,  20  N.  Y.  S.  R.  336. 

7.  Rights  acquired  l>y  Incorpora- 
tion under.— As  N.  Y.  Rapid  Transit  Act 
prescribes  the  proceedings  by  which  rights 
may  be  acquired,  a  substantial  compliance 
with  the  material  requirements  of  the  act  is 
a  condition  precedent,  without  performance 
of  which  a  company  never  becomes  legally 
incorporated  or  acquires  any  rights  under 
the  act.  Ne^o  York  Cable  Co.  v.  Mayor, 
etc.,  of  N.  Y.,  104  A^.  F.  i,  10  A^.  E.  Rep. 
332, 4  A^.  Y.  S.  R.  308 ;  affirming  40  Hun  i . 

A  corporation  duly  organized  under  N. 
Y.  Rapid  Transit  Act  of  1875,  ch.  606,  ac- 
quires by  the  act  of  incorporation,  and  upon 
obtaining   the    necessary  consents  of   the 


public  anthoritics  and  the  property  owners, 
an  indefeasible  right  to  construct  its  road 
upon  the  route  or  routes  designated  in  its 
articles  of  incorporation ;  tiie  lands  neces- 
sary for  the  purpose  arc  by  the  sovereign 
power  appropriated  to  that  exclusive  use, 
and  a  lien  is  impressed  upon  them  in  favor 
of  the  corporation,  which  ripens  into  title 
through  purchase  or  condemnation  pro- 
ceedings; the  subsequent  condemnation  of 
the  lands  in  the  course  of  the  railroad  con- 
struction is  merely  incidental,  in  order  to 
compensate  property  holders.  Suburban 
Rapid  Transit  Co.  v.  Mayor,  etc.,  of  N.  Y,, 
128  yV.  I'.  510.  28  A'.  E.  Rep.  525.  40  N.  Y., 
S.  R.  498  ;  re7'ersing  60  Hun  S77>  37  A^-  y- 
S.  R.  642,  14  A'.  ]'.  Supp.  230. 

The  distinction  between  such  a  corpora- 
tion and  one  organized  under  the  General 
Railroad  Act  pointed  out.  Suburban  Rapid 
Transit  Co.  v.  Mayor,  etc.,  of  AT.  Y.,  1 28  A^.  Y. 
510,  28  A'.  E.  Rep.  525,  40  A^,  Y.  S.  R.  498 ; 
reversing  60  Hun  $77,  37  iV.  Y.  S,  R.  642,  14 
A^.  Y.  Supp.  230. 

Prior  to  the  passage  of  N.  Y.  Act  of  1884, 
ch.  522,  providing  for  laying  out  new. parks 
in  the  city  of  New  York,  plaintiff  was  or- 
ganized under  the  Rapid  Transit  Act.  One 
of  its  routes,  to  which  the  necessary  con- 
sents of  the  public  authorities  and  property 
holders  had  been  obtained,  ran  through 
private  grounds,  which  were  included  in  one 
of  the  parks  designated  in  said  act.  Subse- 
quent to  the  passage  of  the  act  plaintiff, 
by  condemnation  proceedings,  acquired  the 
right  to  the  strip  of  land  over  which  the 
route  was  located.  The  commissioners  of 
estimate,  appointed  under  the  act  of  1884, 
made  an  award  to  plaintiff,  as  the  value  of 
the  strip,  which  it  refused  to  receive.  The 
city  authorities,  claiming  to  have  acquired 
the  fee,  took  possession  of  the  strip  and 
prevented  plaintiff  from  proceeding  with  its 
work  of  construction.  In  an  action  to  deter- 
mine the  rights  of  the  parties — keld,  that 
plaintiff,  by  and  upon  its  organization,  be- 
came possessed  of  the  absolute  and  exclusive 
franchise  to  construct,  operate,  and  maintain 
its  road  over  the  strip  in  question,  which 
operated  to  vest  in  it  a  legal  right  to  have 
said  strip ;  that  said  franchise  was  not  im- 
paired by  the  fact  that  the  work  of  actual 
construction  had  not  been  commenced  or 
the  land  condemned  before  the  passage  of 
the  act  of  1884,  and  plaintiff  was  not  di- 
vested thereof  by  the  proceedings  under 
said  act ;  that  it  was  inoperative  to  take 


IWI\ 


i  'I 


1158 


RAPID   TRANSIT   ACTS,  8.— RATIFICATION. 


.ill 


away  or  to  authorize  a  deprivation  cr  curtail- 
ment of  such  right ;  that  it  was  not  neces- 
sarily to  be  inferred  from  the  language  of 
the  act  that  it  was  the  legislative  intent  to 
destroy  the  prior  public  use  included  in 
plaintiff's  franchise,  but  rather  that  the  two 
uses  should  stand  together ;  and  that  the 
appropriation  for  a  public  park  was  intended 
to  be  subject  to  the  exercise  by  the  plaintifl 
of  its  franchise.  Suburban  Rapid  Transit 
Co.  V.  May"r,  etc.,  of  N.  V.,  128  JV.  V.  510, 
28  X.  h.  Ri'p.  S2j,  40  N.  v.  S.  R.  498  ;  re- 
versing 60  ihin  577,  37  A'.  Y.  S.  R.  642,  14 
A^.  y.  Supp.  230.— Applying  In  re  Buffalo, 
68  N.  Y.  167. 

8.  ComixMiNation  of  the  coniinis- 
sioiiors.  —  Rapid  transit  commissioners 
presented  a  claim  for  250  days'  actual  ser- 
vice in  locating  an  underground  railway. 
Held,  that,  in  view  of  the  fact  that  the  leg- 
islature has  frequently  fixed  an  annual  salary 
of  $5000  as  a  fair  compensation  for  commis- 
sioners in  various  public  boards  of  the  city> 
and  as  that  is  the  pay  allowed  to  the  aque- 
duct commissioners,  and  the  service  ren- 
dered by  the  transit  commissioners  is  simi- 
lar, the  same  amount  was  allowed  as  a 
reasonable  compensation.  In  re  Rapid 
Transit  R.  Cotn'rs,  21  A^.  Y.  Supp.  570,  50 
A^.  Y.  S.-R.  418,  66  Hun  634,  mem. 


RAPID  TRANSIT   COMMISSION. 

Powers  and  duties  of,  see  Elevated  Rail- 
ways, 10-14. 


RATE   BOOKS. 

Requirenients  of,  under  English  Railway  and 


Canal 
112. 


rriii7.c  Acts,  see  Charges,  107- 


RATES. 


As  affected  ,by  long^  and  short  hauls,  see 
Interstate  Commerce,  1 1 1-120. 

Competition  as  affecting,  see  Interstate 
Commerce,  35. 

Contracts  by  agents  fixing,  see  Agency,  55. 

Decision  of  commissioners  as  to  prima  facie 
evidence  of  reasonableness  of,  see  Rail- 
way Commissioners,  27. 

For  passenger  traffic,  see  Tickets  and  Fares, 
110-140. 

Just  and  reasonable,  see  Interstate  Com- 
merce, 30-52. 

Limitation  of  liability  in  consideration  of  re- 
duction in,  see  Carriage  of  Live  Stock, 
7». 


Of  interest,  see  Interest,  15-18. 

allowed    as    damages,   see    Death  bv 

Wrongful  Act,  440. 
on  damages,  what  rate  governs,   see 

Damages,  111. 
Power  of  interstate  commerce  commission 

over,  see  Interstate  Commerce,  lO,  18. 
railway  commissioners  to  fix,  see  Rail- 
way Commissioners,  7-17. 
Reduction  of,  as  consideration  for  limitation 

of  liability,  see    Limitation   ok    Liaiiil- 

ITY,  7. 
Unjust    discrimination    in,    see    Interstate 

Commerce,  53-01. 

Sef-  also  Charges. 


RATIFICATION. 

By  corporation  of  acts  of  directors,  see  Di- 
rectors, etc.,  54. 

—  directors  of  acts  of  president,  see  Presi- 

dent, O. 

—  legislature  of  corporate    mortgage,    see 

Mortgages,  3. 

—  stockholders    of   acts    of  directors,    see 

Stockholders,  122. 

—  trustees  of  leases  given  by  mortgagor,  see 

Mortgages,  144. 
Estoppel  by,  see  Estoppel,  25. 
Of  action  of  meeting  irregularly  called,  see 

Stockholders,  1 2. 

—  acts  of  agents,  see  Agency,  106-110. 
partner,  see  Partnership,-  4. 

—  agent's  contract  to  limit  liability,  see  Car- 

riage of  Merchandise,  441. 

wrongful  acts,  see  False  Imprisonment, 

13. 

—  assault  upon  passenger,  see  Assault,  3. 

—  assignment  of  lease,  see  Leases,  etc.,  83. 

—  contracts  for  supplies,  see  Claims  against 

United  States,  3. 
made  by  officers  and  agents,  see  Con- 
tracts, 4. 

—  former  election  to  give  railway  aid,  see 

Municipal  and  L(k.al  Aid,  150,  157< 

—  invalid  ordinance,  see  Municipal  Corpo- 

RATIf)NS,   14. 

release,  see  Release,  10. 

—  irregular  issue  of  bonds,  see  Bonds,  10. 
railway  aid  bonds,  see  Municipal 

AND  Local  Aid,  337-340. 

—  leases,  see  Leases,  etc.,  79-81. 

—  libel,  see  Libel,  etc.,  5. 

—  license  by  grantee  or  licensor,  see  License, 

10. 

—  mortgage  executed  withoui:  authority,  see 

Mortgages,  04. 

—  payment  for  stock  by  stranger,  see  Sub- 

scriptions to  Stock,  136. 

—  previous  employment  of  attorney,  see  At- 

torneys, 3. 


18. 

see    Death  by 

B  governs,   see 
ce  commission 

KRCK,  lO,   18. 

o  fix,  see  Rail- 
for  limitation 

ON    OK     LlAlilL- 

ee    Interstate 


ectors,  see  Di- 
ent,  see  Presi- 
mortgage,  see 
directors,  see 
mortgagor,  see 

arly  called,  see 
,  106-110. 

ship;  4. 

tbility,  see  Car- 
41. 

;  Imprisonment, 

e  Assault,  3. 
asks,  etc.,  83. 
Claims  against 

;ents,  see  Con- 

ilway  aid,  see 
,  15«,  157. 

mcipal  Corpo- 

>. 

e  Bonds,  10. 
,  see  Municipal 

D-81. 

or,  see  License, 
i:  authority,  see 
inger,  see  Sub- 
torney,  see  At- 


REAL   ESTATE— REASSESSMENT. 


1159 


Of  ultra  vires  acts,  sec  Ui.i  r\  Virks,  4,  R. 

—  unauthorized  employment  of   physician, 

see  Mkdicai.  Services,  14. 

—  voidable  contracts,  see  Cunikacts,  51. 

—  void  ordinances,  see  Street  Railways,  55. 


REAL  ESTATE. 
Adverse  possession  of,  see  Adverse  Posses- 
sion. 
After-acquired,  when  passes  by  mortgage,  see 

MoRIGAGES,  38,  3t>. 

Compelling  purchase  of,  see  Mandamus,  O. 
Compensatory  damages  for  trespass  on,  see 

Damages,  23. 
Condemnation  of,  for  elevated  railways,  see 

Elevated  Railways,  43-4tl. 

public  use,  see  Eminent  Domain. 

Effect  of  consolidation  on  title  to,  see  Con- 

SOMDAl'ION,  35. 

Issuing  stock  for,  see  Stock,  8. 

Measure  of  damages  to,  by  fire,  see  Fires, 
340. 

Opinion  of  witness  as  to  value  of,  see  Wit- 
nesses, 109. 

Payment  by  receiver  of  claims  for  damage 
to,  see  Receivers,  70. 

Power  of  consolidated  company  to  acquire 
and  dispose  of,  see  Consolidation,  3G. 

foreign  corporations  to  hold,  see  For- 
eign CORPnUATIONS,  8. 

—  to  acquire,  hold,  and  convey,  see  Corpora- 

tions, 8,  10,  11. 

Rolling  stock  is,  see  Mortgages.  48. 

Sale  of,  for  non-payment  of  taxes,  see  Taxa- 
tion, 32U-330. 

requirements  of  the  statute  of  frauds, 

see  Contracts,  17. 

Situs  of,  for  taxation,  see  Taxation,  129. 

Statement  of  cause  of  action  in  suits  for  in- 
jury to,  see  Pleading,  21. 

Trespass  upoi,  see  Trespass,  0-20. 

Variance  between  pleading  and  proof  in  ac- 
tions relative  to,  see  Pleading,  131- 
133. 

When  exempt  from  taxes,  see  Taxation, 
161. 

—  limitation  begins  to  run  in  actions  for, 

see  Limitations  ov  Actions,  22. 

—  may  be  mortgaged,  see  Mortgages,  14- 

20. 

—  subject  to  execution,  see  Execution,  3. 
taxation,  see  Taxation,  75. 


REAL  PROPERTT. 

Power  to   acquire   and   dispose   of,  under 
charter,  see  Charters,  50. 


REAPPRAISEMENT. 
Of  land  damages,  see  Eminent  Domain,  484. 


REASONABLENESS. 


Of  carriers'  rules,  see  Carriage  of  Passen- 
gers, 01-04. 

—  charges,  see  Cmaugks,  20-25. 

—  contract  limiting  liability,  see  Limitation 

OF  Liabii  rrv,  4. 

—  limitation  of  liability,  see  Carriage  of  Pas- 

skngkrs,  337. 

—  ordinances,  see  Streets  and  Highways, 

303. 


REASONABLE  TIKE. 

At  which  to  store  goods  after  refusal  of  con- 
signee to  receive,  see  Carriage  of  Mer- 
chandise. 240,241. 

Duty  of  carrier  to  forward  within,  see  Car- 
riage of  Merchandise,  37. 

For  consignee  to  remove  goods,  see  Carriage 
of  Merchandise,  200,  207. 

—  goods  to  remain  in  warehouse,  see  Car- 

riage OF  Merchandise,  304. 

—  intermediate  carrier  to  receive  goods,  see 

Carriage  of  Merchandise,  622. 

after  notice  of  arrival,  see 

Carriage  of  Merchandise,  627. 

—  passenger  to  alight  from  train,  see  Car- 

riage of  Passengers,  232-235. 

call  for  baggage,  see  Baggage,  66» 

67,  69,  70. 

enter  car,  see  Carriage  of  Passen- 
gers, 219-222. 

—  removal  of  goods,  when  question  for  jury, 

see  Carriage  of  Merchandise,  343. 

—  transfer  of  passengers  to  connecting  line, 

see  Carriage  of  Passengers,  514. 

Goods  must  be  carried  within,  see  Carriage 
of  Merchandise,  130. 

To  alight  from  train,  see  Carriage  of  Pas- 
sengers, 30,  427,  428. 

—  consignee,  to  remove  goods  after  arrival, 

see  Carriage  of  Merchandise,  83-86, 
339-343. 

—  produce   ticket,  see  Tickets  and  Fares, 

35. 

—  remove  goods  after  transit  ended,  see  Car- 

riage of  Merchandise,  170. 

Within  which  carrier  must  deliver  goods,  see 
Carriage  of  Merchandise,  204-208. 

to  file  notice  of  claim  for  loss,  see  Car- 
riage of  Merchandise,  488,  489. 

repair  or  rebuild  fence,  see  Fences, 

87. 


REASSESSMENT. 

Of  increased  land  damages,  see  Eminent  Do- 
main, 472. 


r:M^ 


1160 


REBATES— RECEIPTS,  1-3. 


REBATES. 

Of  taxes,  see  Taxaiion,  liO!i, 

On  charges,  unjust  discrimination  in,  see  In- 

TKKSIAIK  CuMMI.RCK,  Ol. 

Right  to  recover,  see  Ciiakuks,  50. 
Validity  and  effect  of  contracts  for,  see  Dis- 

ClUMINATIItN,  <$4-70. 


REBELLION. 

Validity  of  statutes  in  aid  of,  see  Statutes, 
»1. 


REBUILDING. 
Of  abandoned  lines,  compelling,  see  Aban- 

UONMKNT,  O. 

—  bridges,  see  Buiuuks,  etc.,  28-30. 


REBUTTAL. 

Admissibility  of  evidence  in,  in  actions  for 
damages  caused  by  fire,  see  Fires,  217. 

Competency  of  evidence  in,  see  Evidence, 
lO. 

Evidence  in,  see  Trial,  40. 

Of  evidence  in  reduction  of  damages,  see 

EmIM'.NI'  Df)MAIN,  041. 

—  presumption  of  company's  negligence,  see 
Collisions,  Hi;  Fires,  271-277; 
Negligence,  101. 


RECEIPTS. 
Admissibility  and  effect  of,  as  evidence,  see 

EVIUKNCE,  240. 

Bills  of  lading  considered  as,  see  Bills  op 
Lading,  12-23. 

Conclusiveness  of,  see  Carriage  of  Merchan- 
dise, 405. 

Effect  of  failure  to  read,  see  Express  Com- 
panies, 02. 

For  baggage,  stipulations  limiting  liability 
in,  see  Haccace,  OU. 

—  carrying  the  mails,  tax  on,  see  Revenue, 

8. 

—  goods,  effect  of,  as  evidence,  see  Carriage 

OF  Merchandise,  587. 

Indorsement  of  notice  limiting  liability  on,  see 
Limitation  ov  Liahii.ity,  14. 

In  full,  by  subcontractor,  effect  of,  see  Con- 
struction OF  Railways,  84. 

of  all    damages    as    a   defense,    see 

Flooding  Lands,  01. 

Limitation  of  liability  by  stipulations  or  con- 
ditions in,  see  Cakkiage  of  Live  Siock, 
04  ;  Carriage  of  Merchandise,  432  ; 
ExpRFSs  Companies,  Ol,  <»2. 

Of  baggage  by  carrier,  check  as  evidence  of, 
see  Baggage,  57. 


Of  goods  by  carrier,  bill  of  lading  as  evidence 
of,  see  Hills  of  Lading,  14-l(t. 

prima  facie  evidence  of  through  con- 

tra'^  see  CAKKiArjE  of  Merchandise, 
OiO. 

—  money  by  mortgage  trustees,  see  Mort- 

OAliKS,    145. 

Parol  evidence  to  contradict,  see  Evidence, 
187. 

Passengers  tickets  are,  see  Tickets  and 
Fakes,  1. 

Warehouse,  see  Warehousemen,  2,  3. 

Weight  of,  as  evidence,  see  Evidence,  278. 

When  deemed  special  contracts  limiting  lia- 
bility, see  Express  Companies,  71. 

1.  ConrliiHivciics8,     Kciicrully. — 

Piaintifl  shipped  certain  perishable  freights 
over  defendant's  road  to  commission  mer- 
chants to  be  sold  for  him,  who  receipted  to 
the  company  for  the  property  as  received  in 
good  order.  //<•/</,  that  such  receipt  did  not 
estop  plaintiff  from  maintaining  an  action 
for  damages  to  tiic  goods  wliile  in  the  car- 
rier's  hands.  Afonellw.  Northern  C.  A'.  Co., 
i6  Hun  (A',  y.)  585 ;  aj/irw/fix  67  Bard.  531. 

2.  Ui'oolpts  ill  lull.— Where,  in  an  ac- 
tion to  recover  damages  for  personal  injuries, 
the  company  pleads  a  rt-ccipt  in  full,  the 
plaintilT  has  a  right  to  flic  a  bill  in  equity 
alleging  tiie  receipt  to  have  been  obtained 
by  fraud,  and  piaying  that  the  company 
may  be  ri'straincd  fioni  setting  it  up  as  a 
deft  use,  l)iit  for  no  fin  liier  relief.  Stewart 
v.  Of  eat  li'tstirti  A'.  Co.,  2  DeC.J.  6f  S.  319, 
1 1  _/«> .  A .  .V.  627,  1 3  H '.  A',  907,  1 3  Z,.  T.  79. 
—  Di.sTiNc.ui.sHF.n  IN  Lee  v.  Lancashire  & 
Y.  K.  Co..  L.  R.  6  Cii.  527,  25  L.  T.  77,  19 
W.  K.  729. 

A  motion  for  a  nonsuit  has  the  effect  of 
a  demurrer  to  plaintifT'sevidence,  and  admits 
the  truth  of  every  inference  to  be  fairly 
drawn  thcrefronv  So  in  a  suit  by  a  con- 
tractor to  recover  for  extra  work  in  con- 
structing a  railroad  proof  by  plaintifT,  di- 
rect, positive,  clear,  and  precise,  iliat  he  gave 
a  receipt  in  full  through  fraudulent  repre- 
sentations of  tlie  directors  makes  a  question 
that  should  be  left  to  the  jury.  AJcGrann 
V.  Pittshtrgh  (S-  L.  E.  K.  Co.,\\\  Pa.  St. 
\7\,  2  AtL  Kep.  Z72. 

3.  Parol  evidence  to  ex|>la]ii  or 
vary. — A  receipt,  even  when  it  purports  to 
be  in  full,  is  at  all  times  liable  to  explana- 
tion and  impciiclunoiu.  Union  Pac,  D.  &' 
G.  A'.  Co.  V.  McCarty,  3  Colo.  App.  530,  34 
Pac.  I\ep.  767. 

Where  a  railroad  contractor  gives  a  re- 


is:  •>  evidence 

through  con< 

Mkkciiandisk, 

its,  see  MoRT- 
see  Evidence, 
Tickets   and 
N,  2,  3. 

IDK.NCE.  278. 

ts  limiting  lia- 
ES.  71. 

;ciierally.  — 

ihablc  freights 

II mission  mer- 

o  receipted  to 

:is  received  in 

eceipt  did  not 

ling  an  action 

lie  in  the  car- 

/lerH  C.  A'.  Co., 

i'  67  I}arb.  531. 

here,  in  an  ac- 

rsonai  injuries, 

pt  in   fuii,  the 

bill   in  equity 

been  obtained 

the  company 

;ing   it  up  as  a 

elief.     Stewart 

G.,y.  6f  S.  ^ig, 

07,  13  Z.  r.  79. 

.  Lancashire  & 

25  L.  T.  77,  19 

IS  the  effect  of 
ice,  and  admits 
E  to  be  fairly 
suit  by  a  con- 
woric  in  con- 
y  plaintiff,  di- 
e,  that  he  gave 
idulent  repre- 
kes  a  question 
ry.  McGnwn 
'.,111   Pa.  St. 

explain  or 

it  purports  to 
le  to  explana- 
011  Pac. ,  D.  <S<« 

^PP-  530,  34 

ar  gives  a  rc- 


RECEIVERS,  1. 


IIGI 


ceipt  in  full  to  the  company,  he  may  after- 
wards, in  a  suit  to  recover  an  additional 
amount,  testify  that  lie  gave  the  receipt 
under  the  belief  that  a  falsehood  asserted 
by  the  directors  was  true,  and  believing  it  to 
be  true,  it  was  his  judgment  at  the  time 
that  he  could  not  recover  any  greater 
amount ;  but  it  is  not  competent  for  him  to 
testify  that  his  judgment  was  based  on  pro- 
fessional advice.  AJcGrattti  v.  Pittsburi^h 
«5-  L.  E.  K.  Co.,  Ill  Pa,  St,  171,2  At/.  Rep 
872. 

Parol  evidence  is  admissible  to  explain  a 
receipt  or  release  of  a  claim  for  damages 
caused  by  fire.  Har'trly  v.  State  Line  d»  S, 
R.  Co.,  125  Pa.  St.  116,  17  Atl,  Rep.  224. 


RECEIVERS. 
Appointment  of,  as  ground  of  abatement,  see 

AUAIEMENr,  8. 

in  proceedings  to  dissolve,  see  Dissolu- 

TION,  ETC,  22. 

As  experts,  see  Witnesses,  1 74 

Citizenship  of,  on  question  of  removal  of 
cause,  see  Removal  of  Causes,  32. 

Compelling  construction  of  highway  crossing 
by,  see  Crossing  ok  Streets  and  Hiuh- 
ways,  12. 

Duty  of,  to  grant  equal  facilities  to  connect- 
ing lines,see  Interstate  Commerce,  lO-l:. 

Effect  of  appointment  of,  on  creditors'  right 
to  enforce  payment  of  subscription,  see 
Stockholders,  32. 

Indemnity  to,  to  protect  against  debts,  see 
Indemnity  Bonds,  3. 

In  foreclosure  suits,  see  Mortgages,  215- 
234. 

Interference  with,  as  a  contempt,  see  Con- 
tempt, 3,  4. 

by  strikers,  see  Strikes,  5. 

Liability  of  company  for  personal  injuries 
where  road  is  in  hands  of,  see  Crossings! 
Injuries,  etc.,  at,  53. 

for  injuries  caused  by  fire,  see  Fires, 

102. 

killing  stock,  see  Animals,  Injuries 

TO,  «48. 

Necessity  of  assessment  on  subscription 
where  road  is  in  hands  of,  see  Suuscrii'- 
tions  ro  Stock,  47. 

Of  relief  associations,  sec  Relief  Associa- 
tions, 10. 

Operation  of  road  by,  as  a  defense  to  action 
for  causing  death,  see  Death  iiy  Wrong- 
ful Act,  107. 

Power  of,  to  contract  for  rebates  and  draw- 
backs, see  DiscRiMTNAlloN,  OO. 

Proceedings  against,  by  interstate  commerce 


commission,  see  Intbrstatr  Commerce, 

KM). 
Property  in  hands  of,  when  subject  to  taxa* 

tion,  see  Taxa  I  Ion,  8<). 
Sufficiency  of  declaration  in  actions  against, 

see  1)1  ATI!  iiv  Wrongful  Act,  150. 
Variance  between  pleading  and  proof  in  ac* 

tions  against,  see  Pleading,  l.'IO. 

I.  THE  FOWEB  TO  APPOINT  A  BE- 

CEIVEB 1 161 

n.  WHO  MAY  BE  APPOINTED   II 66 

III.  0B0UND8  FOB  THE  APPOINTMENT.  1 1 66 

IV.  THE  APPLICATION,  AND  HOW  DIB* 

POSED  OF I172 

v.  BIGHTS,  POWEBS,  AND  DUTIES  OF 

BECEIVEBS 1178 

1.  Title  and  Possession — Con- 

tempt 1178 

2.  Rijihts  and  Powers 1 1 83 

3.  Duties  and  Liabilities.. .    11 88 
VI.  PAYMENT  OF  CLAIMS.    PBIOBITT.  11 94 

VII.  BECEIVEBS  CEBTIFICATES 1 200 

VIII.  SALES  BT  BECEIVEBS 1 207 

IX.  ACTIONS  BT  OB  AGAINST 1 208 

1.  Suits  by  Receivers 1 20S 

2.  Suits  against  Receivers . .   1 209 

a.  Leave  to  Sue ....   1 209 

b.  Procedure 121 3 

X.  ACCOUNTS 1217 

XI.  COMPENSATION 1220 

XII.  BEMOVAL,    SUBSTITUTION,    AND 

DISCHABOE 1222 

XIII.  LIABILITY  OF  COMPANY  FOB  ACTS 
OF  BECEIVEB  WHILE  IN  POSSES- 
SI    ; 1227 

I.   THE  P(         I  TO  APPOINT  A  BECEIVEB.* 

1.  Gwncrally.t— (I)  T/ie  power,  gener- 
ally.— Ind.  act  entitled  "  An  act  establish- 
ing provisions  respecting  corporations,"  §  16 
(I  Rev.  St.  1876,  p.  369),  authorizing  the 
appointment,  and  defining  the  powers  and 
duties,  of  receivers  of  corporations,  does  not 
govern  in  case  of  a  receiver  of  a  railro.id 
company,  appointed  in  proceedings  supple- 
mentary to  execution.  Carver  v.  Kent,  70 
Ind.  428. 

Under  the  New  York  statute  a  supreme 
court  can  only  appoint  a  receiver  of  a  cor- 
poration as  therein  specified  ;  and  there  is 
no  provision  for  the  appointment  of  a  re- 
ceiver for  either  a  domestic  or  foreign  cor- 

*  Power  of  court  to  appoint  receivers,  see 
notes,  30  A.M.  &  F.no.  R.  Cas.  158;  20  L.  R.  A. 
210. 

+  Nature  and  character  of  a  receivership,  see 
noic,  3  Am.  &  Eng.  R.  Cas.  180. 


1162 


RECEIVERS,  2. 


poration  upon  the  application  nf  a  crerlitor 
at  large  on  a  bill  filled  on  behalf  of  liitnself 
and  all  others  similarly  situated.  I.iht\^h 
C.  6-  A'.  Co.  V.  Central  J\.  Co.,  43  J  Inn 
546,  7  A'.  )'.  S.  N.  270.  — Distinguishing 
WoerisliolTer  7/.  North  kiver  Constr.  Co., 
99  N.  Y.  398,  34  Hun  634,  6  Civ.  Pro.  113. 

The  jjowcr,  however,  of  appointing  a  re- 
ceiver,/^«r/<'«/f ///<■,  is  incidental  to  the  juris- 
diction of  a  court  of  equity.  Such  a  receiver 
is  a  mere  temporary  officer  of  the  court ,  he 
docs  not  possess  the  power  of  a  permanent 
receiver  or  any  legal  power  except  such  as 
is  specifically  conferred  upon  him  by  order 
of  the  court;  his  functions  are  limited  to 
the  cari  and  preservation  of  the  property 
committed  to  his  charge.  Decker  v.  Gard- 
ner, 48  Atii.  &*  Eng.  R.  Cas.  683,  124  JV. 
r.  334,  26  A'.  E.  Rep.  814,  36  iV.  Y.  S.  R. 
267. 

Nothing  contained  in  Tex.  Act  of  July  9, 
1879;  the  act  of  1887,  p.  120,  §3;  the  act  of 
1885,  p.  66,  g  4 ;  or  Rev.  St.,  art.  606,  relating 
to  the  appointment  of  receivers,  is  in  viola- 
tion of  the  rights  of  any  person  or  corpora- 
tion. East  Line  &■•  R.  R.  R.  Co.  v.  State, 
40  Am.  <S^  Eng.  R.  Cas.  574,  75  Tex.  434,  12 
S.  IV.  Rep.  690.— Followed  in  Texas 
Trunk  R.  Co.  v.  State,  83  Tex.  i. 

(2)  In  courts  of  equity. — A  court  of  chan- 
cery has  authority  without  the  aid  of  a 
statute  to  take  charge  of,  manage,  and  oper- 
ate a  railroad,  which  is  the  subject  of  litiga- 
tion, by  its  receivers,  when  s«ch  a  course  is 
indispensable  to  secure  the  right  of  credit- 
ors and  others  or  to  prevent  a  failure  of  jus- 
tice. Meyer  \.  Johnston,  53  Ala.  zyj,  15  Am. 
Ry.  Rep.  467.  Stevens  v.  Davison,  1 8  Graft. 
(Fa.)  819. 

When  a  railroad  company  is  insolvent,  its 
preferential  indebtedness  large,  its  credit 
gone  and  its  property  liable  to  be  seized  by 
different  courts,  its  assets  dissipated  and  its 
system  disrupted,  a  court  of  equity,  upon 
petition  by  the  company,  setting  forth  these 
facts,  may  appoint  a  receiver  to  take  charge 
of  the  property.  But  the  company  cannot 
thus  on  its  own  petition  displace  vested 
liens  by  unsecured  claims,  and  the  court 
must  require  that  the  property  shall  be 
held  by  the  receiver  for  the  benefit  of  all 
concerned  therein.  Quincy,  M.  Sf  P.  R. 
Co.  V.  Humphreys,  51  Am.  &*  Eng.  R.  Cas. 
38.  145  U.  S.  82,  12  Sup.  Ct.  Rep.  787;  af- 
firming 34  Fed.  Rep.  259. 

New  Jersey  Act  of  April  15,  1846,  and  the 
subsequent  leijislation  supplementary  there- 


to, conferred  upon  the  court  of  chancery  the 
same  general  powers  over  an  insolvent 
railroad  corporation  which  have  been  con 
ferred  upon  it  over  other  insolvent  corpora- 
tions ;  and.  where  it  is  necessary,  the  court 
may  o|>('rate  a  railroad  so  as  to  k(;ep  it  in 
good  condition  and  dispose  of  it  advanta- 
geously. Vanderbilt  v.  Central  R.  Co.,  35 
//;//.  <S-  Eng.  R.  Cas.  18,  43  N.J.  Eg.  669,  10 
Cent.  Rep.  849,  12  Atl.  Rep.  188;  affirming 
41  N.J.  Eg.  167,  I  Atl.  Rep.  134.— FoM.ow- 
lN(i  Barton  v.  Barbour,  104  U.  S.  126;  Wal- 
lace V.  Loomis,  97  U.  S.  146. 

The  chancellor  may  personally  direct  or 
make  contracts  ff)r  the  operation  of  an  in- 
solvent railroad,  or  he  may  confer  a  discre- 
tionary authority  for  such  purpose  upon  a 
receiver.  Vanderbilt  v.  Central  R.  Co.,  35 
Am,  «S-  Eng.  R.  Cas.  18,  43  N.J.  Eg.  669,  10 
Cent.  Rep,  849,  12  Atl.  Rep.  188  ;  affirming  \\ 
N.J.  Eg.  \67,-iAtl.Rep.  134. 

N.  J.  Act  of  March  3,  1880  (Rev.  Sup.,  p. 
834,  §  42),  authorizing  the  chancellor  to  ap- 
point a  receiver  if  a  railroad  neglects  to 
run  daily  trains,  confers  such  power  upon 
the  court  of  chancery,  and  not  upon  the 
chancellor  in  his  personal  capacity.  The 
chancellor  can,  in  the  ordinary  course,  refer 
such  matter  'o  a  vice-chancellor,  and  to  a 
master,  tor  heaiingand  an  advisory  opinion. 
Delaware  Bay  «S-  C.  M.  R.  Co.  v.  Markley, 
yj  Am.  &*  Eng.  R.  Cas.  421,45  A'^.  /.  Eg, 
139,  16  ////.  Rep.  436. 

The  usages  of  courts  of  equity  both  as  to 
the  manner  of  appointing  and  discharging 
a  receiver,  where  it  is  not  otherwise  pro- 
vided by  statute,  are  applicable  to  cases 
arising  under  the  Code  of  Ohio.  Cincin- 
nati, S.  6*  C.  R.  Co.  V.  Sloan,  31  Ohio  St.  i, 
15  Am.  Ry.  Rep.  376. 

2.  Discretion  of  the  court.*  —  The 
appointment  or  removal  of  the  receiver  of 
a  railroad  rests  in  the  sound  discretion  of 
the  trial  court,  and  is  not  reviewable  on  ap- 
peal. Milwaukee  &*  M.  R.  Co.  v.  Soulier, 
17  Law.  Ed.  (U.  5.)  616.  Douglass  v.  Cline, 
12  Bush(Ky.)  608,  18  Am.  Ry.  Rep.  273. 
Farmers'  L.  &*  T.  Co.  v.  Chicago  &•  A.  R. 
Co.,  24  Am.  6-  Eng.  R.  Cas.  166,  27  Fed. 
Rep.  146. 

But  the  above  rule  is  not  applicable  to  all 
cases.  While  the  parties  to  a  suit  are  liti- 
gating the  amount  of  a  mortgage  debt,  and 


♦  Grounds  for  appointment  of  receiver.  How 
far  discretionary,  see  note,  30  Am.  &  Eng.  R. 
Cas.  159. 


( chancery  the 

nn    insolvent 
ave  been  con 
)lvenl  corpora- 
*ary,  the  court 
s  to  keep  it  in 

of  It  advanta- 
tral  A'.  Co..  35 
'. /.  /.'f.  669,  10 

1 88  ;  affirming 
134.— Foi.i.ow- 
LJ.  S.  126;  Wal- 

)nally  direct  or 
ntion  of  an  in- 
onfer  a  discre- 
turposc  upon  a 
Htral  R.  Co.,  35 
v./  f^V-  669.  10 
88;  affirming  \\ 

4- 

0  (Rev.  Sup.,  p. 
iiancellor  to  ap- 
>ad  neglects  to 
ich  power  upon 

1  not  upon  the 
capacity.  The 
ary  course,  refer 
^cellor,  and  to  a 
idvisory  opinion. 
.  Co.  V.  Markley, 
21,45  N.  J.  Eq, 

:quity  both  as  to 
and  discharging 
t  otherwise  pro- 
licable  to  cases 
Ohio.  Cincin- 
n,  31  Ohio  St.  I, 

court.*  —  The 

if  the  receiver  of 
nd  discretion  of 
eviewable  on  ap- 
i'.  Co.  v.  Soutter, 
Douglass  V.  Cline, 
I.  Ay.  Rip.  273. 
Chicago  &•  A.  R. 
Cas.  166,  27  Fed. 

applicable  to  all 
to  a  suit  are  liti- 
rtgage  debt,  and 

of  receiver.  How 
)  Am.  &  Eng.  R. 


RECEIVERS,  3,  4. 


1103 


I 


the  question  of  fraud  in  the  origin  of  the 
debt,  tlic  appointment  or  discharge  of  u  re- 
ceiver for  the  mortgaged  property  properly 
belongs  to  tlie  discretion  of  the  trial  court. 
But  when  tliose  questions  have  been  passed 
upon  on  appeal,  and  the  amount  of  the 
debt  definitely  fixed,  the  right  of  the  de- 
fendant to  pay  that  sum  and  have  a  restora- 
tion of  his  property  by  discharge  of  the  re- 
ceiver is  clear,  and  does  not  depend  on  the 
discretion  of  the  trial  court.  Milwaukee  &* 
M.  R.  Co.  V.  Soulier,  2  Wall.  (U.  S.)  510.— 
QuoTKD  IN  Tysen  v.  Wabash  R.  Co.,  8  Biss. 
(U.  S.)  247  ;  Vermont  &  C.  R.  Co.  v.  Ver- 
mont C.  R.  Co.,  50  Vt.  500. 

And  as  a  general  rule  a  receiver  will  be 
appointed  to  protect  a  fund  when  the  com- 
plainant has  an  equitable  interest  therein, 
and  the  defendant,  having  possession  of  the 
property,  is  wasting  it,  or  removing  it  out 
of  the  jurisdiction  of  the  court.  Vose  v. 
Reed,  I   Woods  (U.  S.)  647. 

But  all  the  circumstances  of  the  case  are 
to  be  taken  into  consideration,  and  if  it  be 
such  that  greater  injury  would  ensue  from 
the  appointment  of  a  receiver  than  from 
leaving  the  property  in  the  hands  of  those 
holding  it,  or  if  other  considerations  of  pro- 
priety or  convenience  render  the  appoint- 
ment of  a  receiver  improper  or  inexpedient, 
none  will  be  appointed.  Vose  v.  Reed,  1 
Woods  ( U.  S.)  647. 

But  where  the  fund  arises  under  what  is 
known  as  the  Florida  Internal  Improve- 
men  Act,  and  certain  state  officers  are 
made  trustees  ex  officio,  and  the  state  has  a 
great  interest  in  the  trust,  and  it  is  a  matter 
pertaining  to  the  public  duties  of  such  offi- 
cers, the  court  will  not  take  the  fund  out  of 
their  hands,  except  for  the  most  cogent 
reasons,  such  as  gross  fraud,  or  imminent 
danger  of  loss  to  the  fund.  Vose  v.  Reed,  x 
Woods  {U.S.)  647. 

;{.  Wliat  eourt.s  or  Judgro8  linve  the 
power.— Under  U.  S.  Rev.  St.,  §  563,  giv- 
ing federal  district  courts  jurisdiction  "of 
all  suits  by  or  against  any  association  es- 
tablished under  any  law  providing  for  na- 
tional banking  associations  within  the  dis- 
trict within  which  the  court  is  held,"  a 
district  court  has  power  to  appoint  a  re- 
ceiver of  an  insolvent  corporation  upon  the 
application  of  a  national  bank  established 
in  the  district  where  the  court  is  held. 
Fiflh  Nat.  Rank  v.  Pittsburgh  &•  C.  S.  R. 
Co.,  I  Fed.  Rep.  190. 

A  federal  circuit  court  in  a  state  where  a 


part  of  the  property  is  located,  and  where 
the  mortgage  was  executed,  has  jurisdiction 
to  appoint  a  receiver  for  the  entire  road. 
Wilmcr  v.  Atlanta  &>  R.  A.  L.  R.  Co..  2 
Woods  (U.  S.)  409.— Ai'i'KoviNO  Ellis  V, 
Boston,  H.  &  E.  R.  Co,,  107  Mass.  1. 

Under  the  constitution  and  laws  of  Flori- 
da, a  receiver  cannot  be  ap|)ointed  by  the 
judge  of  one  circuit  to  take  possession  of 
property  in  another.  State  v.  Jacksonville, 
P.Sf  M.R.  Co.,  15  Fla.  201. 

A  judge  of  a  state  circuit  court  in  Illinois 
cannot,  in  vacation,  appoint  a  receiver  of  a 
railroad.  The  possession  of  a  receiver  ^  > 
appointed  is  not  that  of  the  court,  and  wib 
not  be  recognized  as  against  a  receiver  sub- 
sequently appointed  by  a  U.  S.  court.  Hani' 
mock  V.  Farmers'  L.  &•  T.  Co.,  7  Am.  &• 
Eng.  R,  Cas.  465,  105  [/,  S.  77. 

The  authority  of  a  judge  of  the  court  of 
common  pleas  to  appoint  or  discharge  a 
receiver,  or  to  act  on  other  provisional 
remedies,  is  not  required  to  be  exercised 
within  the  county  in  which  the  action  is 
pending.  Cincinnati,  S.  6-  C.  R.  Co.  v.  Sloan, 
31  Ohio  St.  I,  15  Am.  Ry,  Rep.  376. 

Texas  Act  of  April  2.  1887,  §  13,  concern- 
ing receivers,  does  not  limit  the  power  to 
appoint  a  receiver  to  those  courts  exercis- 
ing jurisdiction  over  the  territory  in  which 
the  principal  office  of  the  corporation  is 
located.  Bonner  v.  Hearne,  39  Am.  6-  Eng. 
R.  Cas.  580,  75  Tex.  243,  12  S.  W.  Rep.  38. 
— Quoting  De  La  Vega  v.  League,  64  Tex. 
214. 

4.  Conflict  of  Juri8flictioii.— (I)  /;/ 
general. — It  is  well  settled  that  where  both 
a  state  and  a  federal  court  have  concurrent 
jurisdiction  the  court  which  first  takes  con- 
trol of  the  subject-matter  and  of  the  parties 
cannot  be  ousted  by  subsequent  proceed- 
ings instituted  in  the  other  court.  So  where 
a  state  court  has  lawfully  appointed  a  re- 
ceiver, a  federal  court  should  not  appoint 
another  receiver  at  the  suit  of  other  parties. 
Central  Trust  Co.  v.  South  Atlantic  &*  O. 
R.  Co.,  57  Fed.  Rep.  3. 

The  comity  which  exists  between  state 
and  federal  courts  does  not  prevent  a  federal 
court  from  appointing  a  receiver  of  railroad 
property  because  prior  foreclosure  proceed- 
ings have  been  instituted  in  a  state  court, 
where  it  clearly  appears  that  it  is  but  an 
amicable  proceeding, as  an  attempt  to  nurse 
the  business  of  the  company  into  success, 
without  any  immediate  purpose  of  appoint- 
ing a  receiver.     East  Tenn.,  V.  &*  G.  R.  Co. 


1164 


RECEIVERS,  5. 


•« 


,.  ;i!< 


I,  «i 


"14J8I    51  Kf  3 


V.  Atlanta  i5-  F.  R.  Co.,  49  Fed.  Rep.  608.— 
Quoting  Wilmer  v.  Atlanta  &  R,  A.  L.  R, 
Co.,  2  Woods  (U.  S.)426. 

Comity  does  not  demand  that  the  en- 
forcement of  a  statute  be  deferred  to  await 
the  action  of  the  courts  of  another  state, 
whicli  appointed  a  receiver  in  reference  to 
the  property  of  the  corporation  situated  in 
that  state.  Ft.  Dodge  v.  Minneapolis  &^  St. 
L.  R.  Co.,  55  Am.  <S-  Eng.  R.  Cas.  58,  87 
/oTva  389,  54  .V.   !V.  Rep.  243. 

Indiana  Act  o^  March  4,  1863,  is  probably 
valid  where  it  operates  alone  on  persons 
and  rights  under  the  lawr.  of  the  state,  but, 
so  far  as  it  undertakes  to  empower  the  state 
courts  to  control  the  earnings  of  railroads 
which  have  been  placed  in  the  care  and 
management  of  receivers  by  orders  of  fed- 
eral courts,  it  is  inoperative  and  void.  0/iio 
&^  A/.  R.  Co.  V.  Fitc/t,  20  /mi.  498.— DISTIN- 
GUISHED IN  Heath  v.  Missouri,  K.  &  T.  R. 
Co.,  83  Mo.  617.  Explained  in  Ohio  &  M. 
R.  Co.  V.  Davis,  23  Ind.  553. 

Un  ier  the  New  Jersey  law  a  verdict  be- 
fore judgment  is  entered  does  not  create  a 
lien  on  real  estate.  So  where  a  receiver  is 
appointed  for  a  railroad  in  a  federal  court 
between  the  time  of  rendering  a  verdict  and 
the  entry  of  judgment  thereon,  It  does  not 
create  a  lien  on  the  property,  so  that  it  must 
be  paid  by  the  receivers  there,  but  the  judg- 
ment creditor  must  apply  to  the  federal 
court  appointing  the  receiver  for  the  pay- 
ment of  the  judgment.  Jennings  v.  Phila- 
delphia 5-  R.  R.  Co.,  23  Fed.  Rep.  569. 

The  prior  jurisdiction  acquired  by  the 
pendency  of  a  former  action  in  which  an 
injunction  and  receivership  are  sought  will 
exclude  the  interference  of  the  court  in 
another  suit  of  which  the  principal  object  is 
the  same  provisional  remedies.  Young  v. 
Rollins,  12  Am.  &^  Eng,  R.  Cas.  455,  85  A^. 
Car.  485. 

It  was  urged  against  the  action  of  a  trial 
court  in  appointing  a  receiver  of  a  rail- 
way that  a  receiver  had  previously  been 
appointed  by  a  United  States  court,  but  it 
did  not  appear  at  what  time  the  proceedings 
were  begun  in  the  United  States  court. 
Held,  that  the  action  of  the  trial  court  can- 
not be  lield  erroneous.  Texas  Trunk  R. 
Co.  V.  Stat.-,  83  Tex.  I,  18  .9.   IV.  Rep.  199. 

(2)  Where  road  extends  through  two  or 
more  states.  —  Wiiere  a  railroad  extends 
through  two  states,  and  a  foreclosure  pro- 
cet'ding  is  instituted,  and  the  same  person 
is  appointed  receiver  by  a  federal  court  in 


each  of  the  two  states,  but  under  orders  dif- 
fering somewhat  as  to  mere  matters  of  ad- 
ministration, the  court  will  not  interfere  to 
modify  such  orders,  where  they  do  not  af- 
fect any  substantial  rights  of  the  parties. 
Central  Trust  Co.  v.  Texas  &•  St.  L.  R.  Co., 
17  Am.  &•  Ettg.  R.  Cas.  334,  22  Fed.  Rep. 

135. 

Where  both  New  York  and  Pennsylvania 
corporations  consolidate  and  a  judgment  is 
taken  in  New  York  against  the  corporation, 
and  suit  is  brought  in  a  federal  court  in 
Pennsylvania  to  enforce  the  judgment,  the 
jurisdiction  of  the  federal  court  over  the 
subject-matter  is  not  aflfected  by  the  appoint- 
ment of  a  receiver  in  a  state  court  of  Penn- 
sylvania ;  nor  will  the  prosecution  of  the 
suit  in  the  federal  court  interfere  with  the 
receiver  in  the  management  of  the  property. 
Union  Trust  Co.  v.  Rochester  &•  P.  R.  Co., 
29  Fed.  Rep.  609. 

Receivers  appointed  by  courts  of  one 
jurisdiction  are  not  entitled  as  of  right  to 
recognition  in  other  jurisdictions,  and  courts 
of  equity  cannot  acquire  extraterritorial  ju- 
risdiction over  property  by  appointing  re- 
ceivers. So  where  a  United  States  court  in 
Missouri  appoints  receivers  of  a  railway 
system  largely  in  Illinois,  a  United  States 
court  in  Illinois  may  remove  such  receivers 
and  appoint  another  for  so  much  of  the 
property  as  is  within  its  jurisdiction.  At- 
kins V.  Wabash,  St.  L.  &'  P.  R.  Co.,  26  Am. 
&•  Eng.  R.  Cas.  441,  29  Fed.  Rep.  161. 

Where  a  supplemental  petition  is  filed  in 
a  federal  court  in  Iowa,  seeking  to  recover 
the  rental  value  of  certain  cars  which  had 
been  used  by  receivers,  it  cannot  be  sus- 
tained where  the  railroad  companies  were 
both  incorporated  in  Missouri,  and  the  rent- 
al claimed  is  for  the  cars  whil?  in  the  pos- 
session of  receivers  appointed  in  that  state, 
and  where  the  Iowa  court  never  had  pos- 
session of  the  property.  United  States 
Trust  Co.  V.  Waiash,  St.  L.  Sf  P.  R.  Co., 
42  Fed.  Rep.  343.— Explaining  Minnesota 
Co.  V.  St.  Paul  Co.,  2  Wall.  (U.  S.)  609. 

5.  Necessity  of  proceedings  to  dis- 
solve.— A  receiver  will  not  be  appointed  to 
take  charge  of  the  property  of  a  corpora- 
tion, the  charter  of  which  has  neither  ex- 
pired nor  been  declared  forfeited,  and  which 
has  competent  officers.  Baker  v.  Louisiana 
Portable  R.  Co.,  34  La.  Ann.  754. 

The  court  of  chancery  cannot  take  from 
the  directors  of  a  corporation,  or  vest  in  a 
receiver,  the   management  and  control  of 


ler  orders  dif- 
latters  of  ad- 
)t  interfere  to 
ey  do  not  af- 
f  the  parties. 
Si.  L.  R.  Co.. 
22  Fed.  Rep. 

Pennsylvania 
a  judgment  is 
le  corporation, 
deral  court  in 
judgment,  the 
ourt  over  the 
by  theappoint- 
court  of  Penn- 
cution  of  the 
jrfere  with  the 
)f  the  property. 
<S^  P.  R.  Co., 

courts  of  one 
as  of  right  to 
ions,  and  courts 
raterritorial  ju- 
appointing  re- 
states court  in 
5  of  a  railway 
I  United  States 
i  such  receivers 
lo  much  of  the 
risdiction.  At' 
R.  Co.,  26  Am. 
:  Rep.  161. 
tition  is  filed  in 
king  to  recover 
cars  which  had 
cannot  be  sus- 
:ompanies  were 
ri,  and  the  rent- 
lil?  in  the  pos- 
;d  in  that  state, 
never  iiad  pos- 
United  States 
.  6-  P.  R.  Co., 
ING  Minnesota 
:U.  S.)6o9. 
;(liii{;s  to  dis- 
be  appointed  to 
I'  of  a  corpora- 
has  neither  ex- 
:ited,and  which 
•er  V.  Louisiana 

754- 

nnot  take  from 
)n,  or  vest  in  a 
and  control  of 


RECEIVERS,  G,  7. 


1165 


the  corporate  business,  except  in  proceed- 
ings to  dissolve  the  corporation  authorized 
by  statute.  Port  Huron  &'  G.  R.  Co.  v. 
St.  Clair  Circuit  Judge,  31  Mich.  456. 

The  ex  parte  appointment  of  a  receiver  to 
manage  the  corporate  business,  and  the  ex 
parte  granting  of  an  interlocutory  injunc- 
tion to  deprive  tlie  directors  of  control,  are 
more  than  irregular,  and  are  absolutely 
void,  as  beyond  the  power  of  the  court. 
Port  Huron  &-  G.  R.  Co.  v.  St.  Clair  Cir- 
cuit Judge,  31  Mich.  456. 

Though  a  statute  provides  for  winding  up 
the  business  of  corporations  by  dissolution 
before  the  expiration  of  the  charter,  on  the 
resolution  of  the  directors  authorized  by  the 
stockholders,  yet  a  court  of  chancery  may, 
in  its  discretion,  upon  a  proper  case,  inter- 
pose, and  place  the  business  of  the  corpora-  " 
tion  in  the  hands  of  a  receiver.  New  Found- 
land  R.  Constr.  Co.  v.  Schack,  40  A'.  J.  Eq. 
222,  I  Atl.  Rep.  23. 

The  right  which  the  state  has  to  have  the 
charter  of  a  corporation  declared  forfeited 
for  non-payment  of  taxes  does  not  preclude 
the  state  from  seeking  the  appointment  of 
a  receiver  of  such  corporation  in  order  that 
it  may  get  what  it  might  not  reach  by  the 
bootless  remedy  afforded  by  a  suit  for  dis- 
solution. State  v.  Georgia  Co.,  112  N.  Car. 
34,  17  S.  E.  Rep.  10. 

6.  Appointment  of  receiver  for 
foreign  corporation.— N.  Y.  Code,  § 
1784,  authorizes  the  appointment  of  a  re- 
ceiver in  an  action  to  sequestrate  the  prop- 
erty of  a  corporation  created  by  the  laws  of 
the  state  ;  but  there  is  no  provision  author- 
izing a  receiver  in  such  suit  against  a  for- 
eign corporation.  Burgoyne  v.  East.rn  &• 
W.  R.  Co.,  19  Civ.  Pro.  384,  13  A'.  V. 
Supp.  537. 

A  foreign  corporation  is,  for  purposes  of 
jurisdiction,  a  "  resident "  of  the  state 
which  creates  it ;  hence  under  R.  I.  Pub. 
Laws,  cap.  723,  §  2,  of  June  20. 1878.  the  su- 
preme court  has  no  power  to  appoint  a  re- 
ceiver of  the  estate  of  a  foreign  corporation 
doing  business  in  Rhode  Island.  Stafford 
V.  American  Mills  Co.,  13  R.  I.  310. 

7.  Power  to  appoint  in  England 
and  Canada. — A  railway  companv  which 
has  never  commenced  to  acquire  the  lands 
or  construct  the  railways  authorized  by  its 
act'  is  not  an  "  undertaking,"  within  the 
meaning  of  the  Railway  Companies  Act, 
1867,  §  4,  of  which  a  receiver  can  be  appointed 
under  that  section.    Semble,  the  powers  of 


a  receiver  appointed  under  the  above  section 
do  not  extend  to  getting  in  unpaid  calls. 
In  re  Birmingham  &•  L.  J.  R.  Co.,  3  Am. 
dr^Eng.  R.  Cas.  616,  L.  R.  iS  Ch.  J).  155.  50 
L.  J.  Ch.  D.  594,  45  /,.  T.  164.  29  H'.  R.  908. 

A  receiver  and  manager  of  the  under- 
taking of  a  tramways  company  may  be 
appointed.  Bartlett  v.  West  Metropolitan 
Tramways  Co.,  [1S93]  3  Ch.  437.— Dis- 
tinguishing Gardner  v.  London,  C.  &  D. 
R.  Co.,  L.  R.  2  Ch.  201. 

On  tlie  application  of  a  judgment  creditor 
of  a  railway  company  wliose  line  was  pur- 
tially  completed, the  court  granted  a  receiver 
over  the  portion  of  the  line  open  for  traffic, 
with  the  liberty  to  extend  him  over  any 
part  of  the  line  which  nii^ht  thereafter  be 
opened.  In  re  Southern  R.  Co.,  5  Ir.  L.  R. 
165. 

A  company  formed  by  act  of  parliament 
for  the  purpose  of  making  a  dock  was  after- 
wards authorized  to  make  a  short  piece  of 
railway  over  its  own  land  connectmg  with 
a  line  of  railway,  and  to  work  it  for  through 
traffic.  Held,  that  the  dock  company  was  a 
company  "  constituted  by  act  of  parliament 
for  the  purpose  of  making  a  railway,"  and 
so  was  a  railway  company  within  the  mean- 
ing of  the  Railway  Companies  Act,  1867,  and 
that  a  receiver  and  manager  could,  there- 
fore, be  appointed  on  the  application  of  a 
judgment  creditor.  In  re  East  &•  IV.  I. 
Dock  Co.,  L.  R.  38  Ch.  D.  576.— Reviewing 
In  re  Mersey  R.  Co.,  37  Ch.  D.  610;  Great 
Northern  R.  Co.  v.  Tahourdin,  13  Q.  B.  D. 
320. 

But  the  receiver  and  manager  must  be 
appointed  of  the  whole  undertaking  of  the 
company,  and  not  merely  of  the  railway  be- 
longing to  it.  In  re  East  &*  W,  I.  Dock 
Co.,  L.  R.  38  Ch.  D.  576. 

In  the  appointment  of  a  receiver  the 
court  acts  only  upon  a  proper  case,  made 
according  to  well-established  principles, 
and  in  that  sense  only  can  a  receiver  be 
said  to  be  ex  dehito  justitice,  whether  the 
application  be  interlocutory  or  made  at  the 
hearing,  whether  the  appointment  of  the 
receiver  is  the  sole  object  of  the  action  or 
only  incidental  to  other  relief,  and  whether 
the  relief  is  sought  at  the  instance  of  a  judg- 
ment creditor,  or  of  any  one  else.  Smith  v. 
Port  Doroer  Sf  L.  H.  R.  Co.,  25  Am.  &* 
Eng.  R.  Cas.  639,  1 2  Ont.  App.  288 ;  affirm- 
ing 8  Ont.  256.— Distinguishing  Peto  v. 
VVelland  R.  Co.,  9  Grant's  Ch.  455  ;  Fox  v. 
Toronto  &  N.   R.  Co.,  28  Grant's  Ch.  212; 


III: 

!:';jf.- 


II I 


Fff 


1166 


RECEIVERS,  8-11. 


is. 


'i  ■• 

i  r' 


Lee  V.  Credit  Valley  R.  Co.,  29  Grant's  Cli. 
480;  In  re  Manchester  &  \I.  R.  Co.,  14  Ch. 
D.  645.  QuoTi.NG  Simpson  v.  Ottawa  &  P. 
R.  Co.,  I  Ciian.  Cliamb.  126. 

II.  WHO  HAT  BE  APPOINTED. 

8.  Generally. — Ordinarily  a  non-resi- 
dent receiver  of  a  railroad  should  not  be 
appointed,  nor  more  tlian  one.  Meier  v. 
Kansas  Pac.  K.  Co.,  5  Dill.  {U.  S.)  476, 

Secured  creditors  cannot  dictate  who 
shall  be  appointed  a  receiver.  He  is  the 
hand  of  the  court ;  and  the  interest  of  cred- 
itors of  every  grade  will  be  considered  in 
making  the  appointment.  Richards  v. 
Chesapeake  <S>»  O.  K.  Co.,  i  Hughes  ( U.  S.)  28. 

Where  by  agreement  two  receivers  of  a 
railroad  are  appointed,  and  they  establish 
their  offices  a  long  distance  apart,  and  sub- 
sequently become  hostile  to  each  other,  the 
court  will  remove  them  both  and  appoint 
an  impartial  person  residing  in  the  state 
where  the  principal  part  of  the  road  is  lo- 
cated. Meier  v.  Kansas  Pac,  K.  Co.,  5 
Dill.  {U.  5.) 476. 

Objection  was  made  to  a  receiver  of  rail- 
road property  that  he  was  too  hostile  to 
the  corporation  and  too  strong  a  partisan 
of  plaintiflf's  claim.  Held,  that  a  receiver 
must  rest  on  the  facts  of  his  case,  and  a 
strong  feeling  in  favor  of  the  plaintiff  is  no 
objection.  Olmsted  v.  Rochester  &•  P.  R. 
Co.,  8  N.  Y,  S.  R.  856,  44  Hun  627  ;  affirmed 
in  106  A^.  Y.  673,  mem.,  13  N.  E.  Rep.  937, 
II  A^  I'.  5.  R.  881,  mem. 

k  receiver,  though  an  officer  of  the  court, 
stands  in  the  position  of  trustee  to  all  in- 
terested in  the  estate  or  fund  ;  therefore  in 
making  the  appointment  the  court  will 
endeavor  to  select  a  person  unexceptionable 
to  all  parties,  not  only  on  the  score  of  fit- 
ness and  competency,  but  also  as  regards 
the  feelings  of  friendship  or  dislike  between 
the  person  proposed  and  those  with'whom 
he,  in  the  discharge  of  his  duties,  will  be 
likely  to  be  brought  into  frequent  communi- 
cation. Simpson  v.  Ottawa  &•  P.  R.  Co.,  t 
Chan.  Chamb.  ( U.  C)  99. 

9.  Purtieii  and  persons  interested. 
—It  is  the  uniform  practice  of  the  federal 
court  in  the  fourth  circuit  to  appoint  no 
one  receiver  of  a  railroad  corporation  who 
has  been  one  of  its  officers,  or  who  had 
anything  to  do  with  its  control  prior  to  its 
insolvency.  Finance  Co.  of  Pa.  v.  Charles- 
ton, C.  &*  C.  R.  Co..  45  Fed.  Rep.  436. 

A  receiver  should  be  an  impartial  person, 


not  interested  in  the  litigation,  or  a  partisan 
of  any  of  the  litigants.  Meier  v.  Kansas 
Pac.  R.  Co.,  5  Dill.  {U.  S.)  476. 

The  office  of  receiver  should  not  be  con- 
ferred upon  a  party  to  the  cause.  Young 
v.  Rollins,  12  Am,  &>  Eng.  R.  Cas.  455,  85 
A^.  Car.  485. 

10.  Officers  of  the  company. — Offi- 
cers who  have  defrauded  their  corporation 
cannot  prevent  the  attorney-general  from 
bringing  an  action  to  have  a  receiver  ap- 
pointed by  having  one  of  their  confederates 
begin  suit,  and  another  appointed  receiver. 
People  v.  Rruff,  9  Abb.  N.  Cas.  (JV.  Y.)  1 53, 
60  HcTv.  Pr.  I . 

As  a  rule,  where  the  directors  of  a  rail- 
way company  have  been  acting  fairly,  one  of 
them  will  be  appointed  manager  under  the 
Railway  Companies  Act,  1864,  where  such 
an  appointment  is  required  by  a  judgment 
creditor.  /«  re  Manchester  &*  M.  R,  Co., 
L.  R.  14  Ch.  D.  645,  49  Z.  /.  Ch.  D.  365, 
42  L.  T.  714. 

III.  OBOtrNDS  FOB  THE  APPOINTMENT. 

11.  When  appointed,  generally.*— 

Where  it  is  made  to  appear  that  a  railroad 
company  is  unable  to  do  furthei  work  in 
the  extension  of  its  road,  and  that  a  large 
land  grant  will  lapse  in  a  short  time  unless 
the  road  is  completed,  and  that  this  grant  is 
the  principal  security  of  the  company's 
bondholders,  a  court  will  appoint  a  receiver, 
on  the  application  of  such  bondholders, 
and  clothe  him  with  power  to  borrow  money 
and  complete  the  road.  Kennedy  v.  St. 
Paul  &>  P.  R.  Co.,  2  Dill.  ( U.  S.)  448.— EX- 
PLAINED IN  Investment  Co.  of  Phila.  v. 
Ohio  &  N.  W.  R.  Co.,  36  Fed.  Rep.  48. 
Quoted  in  Vermont  &  C.  P.  Jo.  7/.  Ver- 
mont C.  R.Co.,  50  Vt.  500.  I  '.'EWED  IN 
Snow  V.  Winslow,  54  Iowa  2c^  —Allen  v. 
Dallas &*  IV.  R.  Co.,  3  Woods  ^V.  S)  316. 

A  railroad  corporation  had  collected  only 
five  per  cent,  of  its  capital  stock,  which  it 
had  expended.  Judgments  had  been  ren- 
dered against  it,  which,  in  default  of  assets, 
had  been,  on  proper  legal  proceedings,  paid 
by  plaintiffs  as  stockholders,  and  other 
debts  and  judgments  existed  ;  the  officers 
and  directors  of  the  corporation  had  not 
met  for  eighteen  months,  and  had  made  no 
provision  for  its  debts  ;  its  franchises  were 

*  Receivers,  when  and  over  what  property 
will  be  appointed,  see  valuable  note,  64  Am. 
Dec  482. 


or  a  partisan 
ier  V.  Kansas 

Id  not  be  con- 
ause.      Youn^ 
Cas.  455.  8, 

ipany. — Offi- 

r  corporation 

general  from 

receiver  ap- 

r  confederates 

nted  receiver. 

{N.  Y.)  153. 

tors  of  a  rail- 
g  fairly,  one  of 
ger  under  the 
)4,  where  such 
)y  a  judgment 
<S-  M.  K.  Co., 
/.    Ot.D.zGs, 

POIHTHENT. 

generally.*— 

ihat  a  railroad 
rtlie.  work  in 
nd  that  a  large 
>rt  time  unless 
at  this  grant  is 
he  company's 
aint  a  receiver, 
bondholders, 
borrow  money 
'ennedy  v.  St. 
S.)  448.— Ex- 
i.  of  Phila.  V. 
Fed.  Rep.  48. 
P.  Jo.  V.  Ver- 
I^  '.'EWED  IK 
2c  ^  —Allen  V. 
i^W.  .3)316. 
collected  only 
tock,  which  it 
had  been  ren- 
fault  of  assets, 
ceedings,  paid 
rs,  and  other 
i ;  the  officers 
ition  had  not 
1  had  made  no 
•anchises  were 

what  property 
!  note,  64  Ah. 


RECEIVERS,  12. 


1167 


abandoned, and  it  had  noassets.  Some  of  its 
shareholders  were  .on-residents  and  some 
were  insolvent,  and  plaintiffs  were  about  to 
have  cast  upon  them  the  payment  of  the 
entire  corporate  indebtedness.  Held,  that 
plaintiffs  could  maintain  a  bill  for  the  ap- 
pointment of  a  receiver  to  assess  the  stock- 
holders to  pay  debts,  etc.  Ford  v.  Kansas 
City  <S-  /.  S.  L.  R.  Co.,  52  Mo.  App.  439. 

A  receiver  will  not  be  appointed  to  super- 
sede permanently  the  managers  of  a  railway, 
and  to  take  entire  charge  of  the  affairs  of 
the  road.  But  where  two  railroad  compa- 
nies possess  a  community  of  interest  in  the 
property  in  dispute  (as,  for  example,  being 
tenants  in  common  of  an  easement),  the 
court  will  exercise  judicial  control  over 
their  conduct  towards  each  other  in  order 
to  protect  their  respective  rights.  Dela- 
ware, L.  &•  \V.  R.  Co.  v.  Erie  R.  Co.,  21  N. 
J.  Eq.  298. — Distinguished  in  National 
Docks  R.  Co.  V.  Central  R.  Co.,  32  N.  J. 
Eq.  755.  Quoted  in  Lehigh  Valley  R.  Co. 
V.  Society,  etc.,  30  N.  J.  Eq.  145. 

Where  it  becomes  necessary  to  compel 
obedience  to  its  injunction  or  decree,  the 
court  will  appoint  a  receiver  to  take  control 
of  the  defendants'  property.  S'ckton  v. 
Central  R.  Co.,  50  N.  J.  Eq.  489,  25  Atl. 
Rep.  942. 

Where  a  railroad  is  placed  in  the  hands 
of  a  receiver  on  the  application  of  second 
mortgage  creditors,  the  original  appoint- 
ment may  be  extended  to  cover  the  prior 
mortgage,  upon  proper  application.  Farm- 
ers' <&-  M.  Nat.  Bank  v.  Philadelphia  &*  R. 
R.  Co.,  14  Phila.  (Pa.)  456. 

Although  not  a  creditor  of  a  corporation 
dissolved,  the  state,  in  the  interest  of  the 
public,  may  apply  for  the  appointment  of  a 
receiver  of  the  defunct  corporation  ;  and  an 
appointment  of  such  receiver  is  properly 
made  on  application  of  the  state  upon  a 
judgment  of  forfeiture  entered  against  a 
railway  corporation.  Texas  Trunk  R.  Co. 
V.  State,  83  Tex.  i,  18  S.  JV.  Rep.  199.— 
Following  East  Line  &  R.  R.  R.  Co.  7'. 
State,  75  Tex.  434 

12.  When  refused,  generally.— (1) 
Federal  decisions. — Where  the  reief  sought 
is  founded  upon  a  disputed  equity,  a  court 
of  chancery  will  with  great  reluctance  and 
hesitation  take  the  possession  from  a  de- 
fendant holding  a  clear  legal  title.  So, 
where  none  of  the  actual  holders  of  the 
stock  or  bonds  of  a  railroad  company  who 
would    he  affected  similarly  with  plaintiff 


are  before  the  court,  it  ought  lO  hesitate 
before  appointing  a  receiver,  on  the  ground 
of  a  possible  injury  to  one  holding  nothing 
more  than  a  disputed  equitable  claim  for  de- 
ferred stock.  Overton  v.  Memphis  &>  L.  R.  R, 
Co.,2,McCrary  {[/.  5.) 436, 10 Fed.  Rep.  866. 

It  is  not  the  province  of  a  court  of  equity  to 
take  possession  of  the  property  and  conduct 
the  business  of  corporations  or  individuals, 
except  wliere  the  exercise  of  such  extraor- 
dinary jurisdiction  is  indispensably  neces- 
sary to  save  or  ,..  ^ect  some  clear  right  of  a 
suitor  which  would  otherwise  be  lost  or 
greatly  endangered,  and  which  cannot  be 
saved  or  protected  by  any  other  action  or 
mode  of  proceeding.  Overt  >n  v.  Memphis 
&-  L.  R.  R.  Co.,  3  McCrary  {U.  S.)  436,  10 
Fed.  Rep.  866. 

A  court  will  not,  in  deference  to  the  mere 
technical  rights  of  a  very  small  minority 
of  borrdholders,  take  a  railroad  over  600 
miles  in  length,  running  through  three  great 
states,  and  by  the  appointment  of  a  receive* 
imperil,  if  not  destroy,  the  interests  of  others 
whose  rights  are  entitled  to  equal  consider- 
ation with  tliose  of  the  plaintiff  ;  especially 
wliere  those  in  charge  of  the  road  are  not 
charged  with  any  fraud  or  dishonesty,  and 
where  there  is  a  prospect  of  general  pros- 
perity in  the  near  future.  Tysen  v.  Wabash 
R.  Co.,  8  Bisi.  {U.  S.)  247.— Quoting  Mil- 
waukee &  M.  R.  Co.  V.  Soutter,  2  Wall.  (U. 

s.)  523 

And  a  court  will  not  make  such  appoint- 
ment where  it  appears  that  a  much  greater 
injury  to  all  interested  in  the  road,  includ- 
ing even  the  plaintiff,  would  result  from  so 
doing  than  would  result  from  leaving  the 
property  in  the  hands  of  the  company  dur- 
ing a  foreclosuie.  Tysen  v.  IVabash  R.  Co., 
8  Biss.  ( U.  S.)  247. 

A  stockholder  filed  a  bill  alleging  that  he 
held  certain  shares  of  stock  which  had  been 
illegally  issued,  and  praying  that  the  ques- 
tion of  their  legality  might  be  inquired  into, 
and  if  held  illegal,  that  he  might  be  repaid 
the  amount  paid  for  the  shares,  and  that  a 
teceiver  be  appointed  to  hold  such  amount  of 
the  corporate  property  as  would  indemnify 
plaintiff.  It  appeared  that  the  moneys  re- 
ceived by  the  corporation  fr.-im  the  shares 
had  not  been  kept  separate,  and  could  not 
be  traced  or  identified.  Held,  that  neither 
could  an  injunction  be  granted  to  prevent 
the  company  from  selling  its  property,  nor 
a  receiver  appointed.  Whelpley  v.  Erie  R, 
Co.,  6  Blatchf.  (I/.  S.)  271. 


1168 


RECEIVERS,  13. 


wmV: 


U 


I 


'M' 


[  ] 

i 
1 

1 

Where  a  receiver  is  already  in  possession 
of  property,  an  additional  receiver  will  not 
be  appointed  unless  it  seems  to  be  necessary 
for  the  protection  of  those  asking  for  it. 
Wabash,  St.  L.  &•  P.R.  Co.  v.  Central  Trust 
Co.,  17  Am.  &>  Eng.  R.  Cas.  264,  22  Fed. 
Rep.  272. 

Where  a  railroad  track  is  laid,  but  not 
being  used,  and  two  parties  are  in  dispute 
over  it,  both  claiming  the  right  of  posses- 
sion, and  the  object  of  the  suit  is  to  quiet 
title,  the  court  will  not  interfere  by  the  ap- 
pointment of  a  receiver,  but  will  leave  the 
parties  to  their  remedy  at  law  to  settle  the 
question  of  title  and  possession.  5/.  Louis, 
K.  C.  <&*  C.  R.  Co.  V.  Dewees,  23  Fed.  Rep. 
519.  691. 

(2)  State  decisions. — No  interference  with 
the  management  of  a  corporation  can  be 
justified,  and,  in  the  absence  of  statutory 
authority,  courts  have  no  jurisdiction  to  ap- 
point receivers,  except  in  cases  of  extreme 
necessity.  Ford  v.  Kansas  City  &^  I.  S.  L. 
R.  Co.,  52  Mo.  App.  439. 

When  legal  process  against  responsible 
claimants  of  a  railroad  is  an  adequate  rem- 
edy for  a  neglect  to  keep  the  road  in  suitable 
repair,  the  remedy  of  a  receivership  may  be 
denied.  Boston,  C.  &*  M.  R.  Co.  v.  Boston 
&*  L.  R.  Co.,  SI  Am.  <S-  Eng.  R.  Cas.  106,  65 
N.  H.  393,  23  Atl.  Rep.  529. 

An  action  will  not  lie  in  behalf  of  a  stock- 
holder, against  the  corporation  and  its  di- 
rectors, to  remove  the  directors  and  appoint 
a  receiver,  and  for  an  injunction,  upon  alle- 
gations of  misconduct  in  a  part  of  the 
directors  only,  in  which  the  others  are  not 
charged  with  participating  except  that  they 
are  under  the  influence  of  the  former.  The 
misconduct  of  some,  or  ev^n  of  all  the 
directors,  affords  no  ground  for  taking  away 
the  rights  of  the  stockholders  who  consti- 
tute the  company,  either  by  dissolving  the 
corporation,  or  taking  away  its  management 
and  placing  it  in  the  hands  of  an  officer  of 
the  court.  Belmont  v.  Erie  R.  Co.,  52  Barb. 
{N.  Y.)  637.— Quoting  Waterbury  v.  Mer- 
chants' Union  Exp.  Co.,  50  Barb.  157. 

Where  it  is  sought  to  prevent  the  usurpa- 
tion of  corporate  powers,  the  proper  remedy 
is  by  an  action  in  the  name  of  the  attorney- 
general,  and  not  an  action  by  a  stockholder 
for  a  receiver  and  an  injunction.  People  v. 
Erie  R.  Co.,  36  How.  Pr.  (.V.   K.)  129. 

A  receiver  ought  not  to  be  appointed, 
unless  where  it  is  necessary  to  protect  stock- 
holders or  creditors,  or  to  prevent  an  abuse 


of  corporate  franchises.     Rochester  v.  Bron- 
son,  41  Hoiv.  Pr.  (N.   Y.)  78. 

It  is  the  right  of  evt-y  party  to  a  litigation 
to  appeal  from  decisions  against  him,  and 
therefore,  in  so  far  as  the  resistance  by  a 
railroad  company  to  actions  brought  to  re- 
cover rent  due  for  a  leased  line  is  concerned, 
or  the  resistance  by  diiectois  of  such  leased 
line  who  have  been  held  by  the  courts  not 
to  be  duly  elected,  no  grounds  are  furnisiicd 
for  theappomtrnent  of  a  receiver.  Rochester 
V.  Branson,  41  Ho7v.  Pr.  {X.  Y.)  78. 

In  an  action  to  prevent  the  consolidation 
of  railroad  companies,  the  election  of  dir"C- 
tors  for  the  new  company,  at  a  meeting  of 
the  stockholders  held  under  section  3383  of 
the  Revised  Statutes,  will  not  justify  the 
appointment  of  a  receiver  against  either  of 
the  companies  on  the  ground  that  part  of 
the  stockholders  participating  in  the  meet- 
ing have  been  inhibited  from  doing  so  by 
injunction.  Cincinnati,  H.  &^  D.  R.  Co.  v. 
Jewett,  8  Am.  &•  Eng.  R.  Cas.  702,  37  Ohio 
St.  649. 

13.  Failure  to  meet  iiidelitediiess. 
— A  company  whose  road  extended  through 
three  states  mortgaged  its  property  to  se- 
cure bondholders,  with  a  provision  that,  if 
the  company  failed  to  pay  interest  or  prin- 
cipal of  the  bonds,  the  mortgage  trustees 
should  take  possession  and  sell  the  prop- 
erty. Held,  that  if  the  trustees  failed  to 
take  possession  and  execute  the  trust,  after 
a  default,  and  upon  demand,  the  bondhold- 
ers might  file  a  bill  requiring  such  action, 
and  the  court  would  decree  that  they 
execute  the  trust,  or  appoint  a  receiver  to 
do  so.  Wilmer  v.  Atlanta  <S-  R.  A.  L.  R. 
Co.,  2  Woods  {U.  S.)  409.— Quoted  in  Mc- 
Fadden  v.  Mays  Landing  &  E.  H.  C.  K. 
Co.,  49  N.  J.  Eq.  176;  East  Tenn.,  V.  &  (j. 
R.  Co.  V.  Atlanta  &  F.  R.  Co.,  49  Fed.  Rep. 
608. 

The  fact  that  there  is  no  probable  de- 
ficiency of  property  to  pay  the  mortgage 
debt  will  not  operate  to  prevent  the  ap- 
pointment of  a  receiver.  Wilmer  v.  Atlantit 
&>  R.  A.  L.  R.  Co.,  2  Woods  {U.  S.)  409. 

And  proof  that  a  part  of  the  property  ha 
passed  into  the  hands  of  diferent  receivers, 
appointed  by  diflerent  rjcirts,  and  that  the 
whole  property  is  lii.ely  to  suffer  there- 
from, is  sufficient  reason  for  the  appoint- 
ment of  one  receiver  for  the  whole  property. 
Wilmer  v.  Atlanta  &-  R.  A.  L.  R.  Co.,  2 
Woods  ( U.  S.)  409. 

Where  a  company  mortgages  its  property 


Rochester  v.  Bron- 
1)78. 

party  to  a  litigation 
IS  against  hini,  and 
he   resistance  by  a 
ions  brougin  to  re- 
ed line  is  concerned, 
ctois  of  such  leased 
P  by  the  courts  not 
puruis  are  furnished 
[receiver.    Rochester 
|(-V.   Y.)  78. 
t  the  consolidation 
he  election  of  dir:c- 
"y.  at  a  meeting  of 
ider  section  3383  of 
kill  not  justify  the 
er  against  either  of 
rround  that  part  of 
sating  in  the  meet- 
froni  doing  so  by 
//.  <S-  D.  R.  Co.  V. 
•  Cas.  702,  37  Oh/o 

t  iiKlebtedness. 

i  extended  through 
its  property  to  se- 
a  provision  that,  if 
f»y  interest  or  piin- 

mortgage  trustees 
and  sell  the  prop- 

trustees  failed  to 
ute  the  trust,  after 
ind,  the  bondhold- 
iring  such  action, 
decree    that    they 
)oint  a  receiver  to 
'ta  <S-  R.  A.  L.  R. 
-Quoted  in  Mc- 
g  «i  E.  H.  C.  R. 
'St  Tenn.,  V.  &  ci. 
Co.,  49  Fed.  Rei).    ' 

no  probable  de- 
ay  the   mortgage 

prevent  the  ap- 
^"iimer  v.  Atlanta 
<fs  ( U.  S)  409. 
the  property  ha 
Terent  receivers, 
rts,  and  that  the 
to  suffer  there- 
for the  appoint- 
;  whole  property. 

A.  L.  R.  Co.,  2 

iges  its  property 


RECEIVERS,  14-16. 


1169 


then  owned  and  to  be  acquired,  and  its  in- 
come and  profits,  to  secure  its  debts,  and 
directs  the  mortgage  trustees  in  default  of 
payment  of  interest  to  take  possession  of 
the  property  and  apply  the  income  to  the 
payment  of  interest,  mere  proof  of  a  default 
is  sufficient  for  the  appointment  of  a  re- 
ceiver at  the  application  of  the  trustees. 
Allen  v.  Dallas  &>  VV.  R.  Co.,  3  Woods 
{U.S.)  116. 

The  bondholders  in  such  case  are  not 
precluded  from  the  appointment  of  a  re- 
ceiver because  it  is  not  shown  that  the 
property  is  insufficient  to  pay  the  mortgage 
debt,  that  tlie  mortgagee  is  insolvent,  that 
the  trust  property  is  in  jeopardy,  or  because 
the  amount  due  is  in  dls|)ute.  Allen  v. 
Dallas  <S«  IV.  R.  Co.,  3  Woods  (U.  S.)  316. 

A  court  will  not  appoint  a  receiver  of  rail- 
road property  merely  upon  a  showing  that 
the  company  is  in  default  in  paying  interest 
on  the  mortgage  debt,  and  that  under  the 
mortgage  the  trustees  were  entitled  to  pos- 
session upon  such  default.  It  must  be 
shown  further  that  ultimate  loss  will  result 
from  permitting  the  property  to  remain  in 
the  hands  of  its  owners  until  a  decree  of 
sale  be  entered  and  a  sale  made.  Union 
Trust  Co,  V.  St.  Lotas,  I.  M.  &>  S.  R.  Co.,  4 
Dill.  (U.  S.)  114.— Following  Williamson 
.'.  New  Albany,  etc.,  R.  Co.,  1  Biss.  (U.  S.) 
193. 

Persons  who  have  guaranteed  the  pay- 
ment of  a  debt  of  a  coi  poration,  and  have 
paid  the  debt,  are  creditors  of  the  company, 
and  are  entitled  to  the  benefit  of  New 
Jersey  act  "  respecting  railroads  and  canals," 
section  57,  which  provides  that  a  receiver  of 
any  railroad  company  may  be  appointed  on 
application  of  any  creditor,  if  the  comi)any 
has  been  in  default  for  ninety  days  in  pay- 
ing principal  or  interest  on  its  mortgage 
debt.  Pennsylvania  R,  Co,  v.  Peviberton  Sir* 
N.  V.  R.  Co.',  28  JV.  /.  Eq.  338. 

14.  Failure  to  run  trains.  —  Cape 
May,  N.  J.,  is  not  a  seaside  resort  within 
the  meaning  of  an  act  providing  that  rail- 
roads at  seaside  resorts  shall  not  be  >ub- 
ject  to  the  provisions  of  a  law  providing  for 
a  receiver  for  roads  that  fail  to  run  trains 
for  ten  days.  In  re  Delaware  Bay  &-  C.  M. 
R.  Co.,  {N.  J.  Eq.)  II  All.  Rep.  261  ;  ad- 
hered to  on  rehearing  in  1 1  Atl.  Rep.  737. 

Notwithstanding  the  fact  that  a  company 

has  been  incorporated  under  the  New  Jersey 

General  Railroad  Law,  and  lias  declared  its 

purp  se  of  doing  a  general  business  in  the 

f.  n.  R.  D.— 74 


transportation  of  freight  and  passengers,  it 
is  (if  its  road  otherwise  answers  the  descrip- 
tion) within  the  purview  of  the  act  of  March 
3,  1880,  which  declares  that  the  act  of  Feb- 
ruary 12,  1874,  which  authorizes  the  ap- 
pointment of  a  receiver  of  any  company 
which  has  not  operated  its  road  for  ten 
days,  shall  not  apply  to  any  company  whose 
road  is  constructed  at  any  seaside  resort, 
does  not  exceed  four  miles  in  length,  and 
is  built  and  intended  merely  for  the  trans- 
portation of  summer  travelers  and  tourists. 
Delaware  Bay  &>  C.  M.  R.  Co.  v.  Marldiy, 
37  Am.  <S-  Eng.  R.  Cas.  421,  45  N.  J.  Eq. 
139,  16  Atl.  Rep.  436. 

The  act  of  March  3,  1880,  is  retrospective 
in  its  operation  and  apjilies  not  only  to 
roads  thereafter  constructed,  but  also  to 
roads  in  operation  at  the  time  of  its  enact- 
ment. Said  statute  is  not  unconstitutional 
as  a  special  act  conferring  corporate  privi- 
leges, the  railroads  to  which  it  applies  form- 
ing a  distinct  class.  Delaware  Bay  &'  C. 
M.  R.  Co.  V.  Markley,  yj  Am.  &•  Eng.  R. 
Cas.  421,  45  N.  J.  Eq.  139,   16  Atl.  Rep.  436. 

15.  Fraudulent  conveyance  of 
property.— A  bill  was  filed  stating  that 
plaintiff  had  recovered  a  judgment  agamst 
a  railroad  company  and  issued  execution, 
upon  which  a  return  of  nulla  bona  had  been 
made,  and  that  prior  to  the  judgment  the  j. 
S.  R.  Co.  had  transferred  all  of  its  rolling 
stock,  franchises,  etc.,  to  appellant  com- 
pany ;  that  appellant  company  had  never 
operated  the  line  so  purchased  ;  that  the  J. 
S.  R.  Co.  held  no  power  to  sell  nor  the  ap- 
pellant company  to  buy  said  railroad  (both 
being  Illinois  corporations),  and  charging 
that  the  sale  was  fraudulent,  and  praying 
for  the  appointment  of  a  receiver.  Held, 
that  a  receiver  was  properly  appointed,  and 
was  entitled  to  costs  for  attendance  in  court, 
and  that  a  writ  of  error  having  been  sued 
out  to  complainant's  judgment,  and  a  super- 
sedeas bond  filed  securing  him,  a  motion  to 
vacate  the  order  appointing  the  receiver 
should  have  been  granted.  Louis7>ille  &* 
St.  L.  R.  Co.v.  Southworth,  38  ///.  App.  225. 

10.  Insolvency. —  If  a  railroad  com- 
pany has  become  insolvent  and  has  made 
default,  it  should  be  placed  in  the  hands  of 
a  receiver,  upon  the  application  of  its  mort- 
gage creditors.  Taylor  v.  Philadelphia  (S>» 
A'.  R.  Co.,  14  Phila.  (Pa.)  451. 

Where  a  majority  of  the  creditors  and 
stockholders  of  a  consolidated  company  file 
a  bill  showing  that  there  are  a  large  amount 


1170 


RECEIVERS,  17. 


i:' 


of  judgments  against  both  the  existing  com- 
pany and  the  consolidating  companies,  and 
tiiat  tiie  officers  cannot  distinguisii  tiie 
property  of  the  several  companies,  so  as  to 
levy  on  it  for  their  respective  debts,  and,  in 
C(jnsequence,  the  property  is  being  sacri- 
ficed, the  court  has  jurisdiction,  as  between 
the  parties,  to  appoint  a  receiver.  Hervey 
v.  Illinois  Midland  R.  Co.,  28  Fed.  Rep.  169. 
The  provisions  of  N.  Y.  Act  of  1870,  ch. 
151,  touching  the  appointment  of  receivers 
orations,  upon  the  application  of  a 
i  1  :,  IK':  "  ':reditor,  after  execution  returned 
o  t  I  jd,  covers  all  the  cases  mentioned 
in  the  Rev.  St,  title  4,  ch.  8,  part  3  ;  and, 
therefore,  in  such  a  proceeding,  the  act  of 
2870  !    ist  be  '   1'  ^wed.     Clinch  v.Sout/i  Side 

ji.  Co..  \  Hun  ( ; '.  y.)  636, 4  r.  6-  c.  224. 

No  mere  creditor  of  a  corporation  can 
have  a  receiver  appointed  until  he  has  a 
judgment  and  execution  returned  unsatis- 
fied. People  V.  Erie  R,  Co.,  36  No7v.  Pr.  (N. 
V.)  129.  Ramsey  v.  Erie  R.  Co.,  2,^  Hmv. 
Pr.  (N.  Y.)  193,  7  Abb.  Pr.  N.  S.  156. 

Where  the  insolvency  of  a  railroad  com- 
pany is  as  positively  denied  by  its  president 
as  it  is  athrmed  in  the  complaint,  so  far  as 
insolvency  forms  a  ground  for  the  appoint- 
ment of  a  receiver,  it  is  removed.  Roc/tester 
V.  Branson,  41  How.  Pr.  (A'.  Y.)  78, 

An  action  against  a  railroad  company 
upon  its  unsecured  promissory  notes  is  an 
action  at  law,  and  is  not  changed  into  a  suit 
ill  equity,  in  which  a  receiver  may  be  ap- 
pointed, merely  because  the  complaint  con- 
tains allegations  that  the  company  is  insol- 
vent, that  other  creditors  are  threatening 
to  sue  it,  that  it  has  no  property  out  of 
whicli  plaintiff  will  be  able  to  satisfy  a  judg- 
ment, and  that  the  action  is  brought  in  be- 
half of  plaintiff  and  all  other  creditors  who 
are  willing  to  come  in  as  plaintiffs.  The 
appointment  of  a  receiver  in  such  a  case  is 
unauthorized  and  void,  and  will  be  annulled 
on  certiorari  it  the  proceedings  are  com- 
menced in  due  tmie.  Smith  v.  Superior 
Court,  97  Cat.  348,  32  Pac.  Rep.  322. 

And  the  consent  of  the  company  to  the 
appointment  of  the  receiver  does  not  affect 
the  right  of  a  creditor  aggrieved  thereby  to 
have  the  order  appointing  such  receiver  an- 
nulled on  certiorari.  Smith  v.  Superior 
Court,  97  Cal.  348.  32  Pac.  Rep.  322. 

In  an  action  by  a  debenture  holder  on  be- 
half of  himself  and  the  other  Holders  of  an 
issue  of  ;£i  5,000  debentures,  the  holders  of 
that  issue  are  entitled  to  stand  in  tiie  posi- 


tion of  judgment  creditors  for  ;^i 5,000,  and 
to  have  appointed  a  receiver  of  the  property 
of  the  company  subject  to  be  seized  by  a 
judgment  creditor.  Hope  v.  Croydon  6-  N. 
Tratn7vays  Co ,  L.  R.  34  Ch.  D.  730. 

Under  tlie  Railway  Companies  Act,  1867, 
§  4,  an  unpaid  judgment  creditor  of  a  rail- 
way company  may  properly  require  the  ap- 
pointment of  a  receiver,  although  the  railway 
is  a  leased  line  or  merely  receives  rent  and 
tolls  under  a  working  arrangement  with 
another  company.  In  re  Manchester  &»  M. 
R.  Co.,  L.  R.  14  Ch.  Z>.645,  49  L.J.  Ch.  D. 
365,42/..  7'.  714. 

The  words  "  if  necessary  "  in  the  above 
statute  point  to  the  necessity  of  carrying  on 
the  business,  and  whenever  a  railway  com- 
pany is  carrying  on  business  in  the  ordinary 
way  a  manager  will  be  appointed,  since  he  is 
necessary.  In  re  Manchester  &^  M.  R.  Co., 
L.  R.  14  Ch.  D.  645,  49  L.J.  Ch.  D.  365,  42 
L.  7-.  714. 

17.  Misapplication  of  assets  — 
Waste. — A  company  mortgaged  its  road  to 
secure  its  bondholders,  with  a  provision  that 
in  case  of  default  of  payment  of  either  in- 
terest or  principal  of  the  bonds  the  trustees 
should  take  possession  of  the  property,  and 
might  sell  it ;  but  this  provision  was  not  en- 
forced upon  a  default.  The  proceeds  of  the 
bonds  were  not  sufficient  to  complete  the 
road,  and,  acting  upon  the  advice  of  a  large 
number  of  the  bondholders,  the  company 
made  other  loans,  and  applied  its  earnings 
in  completing  the  road.  Held:  (i)  that  such 
application  of  the  earnings  was  not  a  misap- 
plication of  the  company's  funds  ;  (2)  that  a 
trustee  might  waive  the  provision  giving 
him  the  right  to  take  possession,  and  file  a 
bill  to  foreclose ;  (3)  that  the  act  of  the 
company  in  expending  its  income  would  be 
respected,  so  far  as  to  relieve  the  company 
or  its  officers  from  any  penalty  or  charge  of 
misappropriation.  Williamson  v.  New  Al- 
bany, etc.,  R.  Co.,  I  Biss.  {I/.  S.)  198, 

Where  a  company  mortgages  its  property, 
and  afterwards  becomes  insolvent  and  is 
wasting  the  same,  the  court  may  appoint 
a  receiver  to  take  charge  of  the  property, 
with  directions,  after  paying  current  ex- 
penses, to  apply  the  net  profits  to  the  pay- 
ment of  mortgage  claims.  North  Carolina 
R.  Co  V.  Drew,  3  IVoods  {U.  S.)  6gi. 

In  general,  where  personal  property,  or 
the  rents  and  profitsot  real  estate  in  dispute, 
are  in  imminent  danger  of  being  wasted,  a 
receiver  may  be  appointed  to  take  care  oi 


RECEIVERS,  18,  19. 


1171 


r;^i  5,000,  and 
f  the  property 
c  seized  by  a 
Croydon  &*  N. 
}.  730. 

lies  Act,  1867, 
iter  of  a  rail- 
squire  the  ap- 
gh  the  railway 
elves  rent  and 
ngement  with 
ichester  &*  M. 

^<)L.j.ai.  D. 

in  the  above 
of  carrying  on 
I  railway  com- 
n  the  ordinary 
ited,  since  he  is 
-  6-  M.  A'.  Co., 

Ch.  D.  365,  42 

of    assets  — 

iged  its  road  to 
provision  that 
It  of  either  in- 
ds  the  trustees 
e  property,  and 
ion  was  not  en- 
proceeds  of  the 
o  complete  the 
dvice  of  a  large 
i,  the  company 
ied  its  earnings 
d:  (i)  that  such 
iras  not  a  niisap- 
jnds  ;  (2)  that  a 
revision   giving 
ssion,  and  file  a 
the  act  of  the 
ricome  would  be 
^re  the  company 
ilty  or  charge  of 
ison  v.  New  Al- 
S.)  198. 

ges  its  property, 
isolvent  and  is 
irt  may  appoint 
Df  the  property, 
ing  current  ex- 
ofits  to  the  pay- 
North  Carolina 
7.  S.)  691. 
nal  property,  or 
estate  in  dispute, 
;  being  wasted,  a 
to  take  care  of 


the  property  during  the  controversy  for  the 
benefit  of  all  concerned.  State  v.  Northern 
C.  A\  Co.,  18  Afd.  193. 

A  company,  whose  road  lies  partly  in 
Maryland  and  partly  in  Pennsylvania,  and  is 
chartered  by  both  states,  executed  a  mort- 
gage of  its  entire  road  and  revenues  to  the 
stale  of  Maryland,  to  secure  tiie  payment  of 
an  annuity  of  $90,000.  Under  this  mort- 
gage the  state  stood  as  second  and  third 
encumbrancer.  Held,  that  upon  its  being 
shown  that  the  company,  in  violation  of 
its  duty,  was  applying,  and  intended  to 
continue  to  apply,  its  revenues  (tiie  only 
means  of  paying  the  annuity)  to  the  pay- 
ment of  junior  encutnbrances,  a  court  of 
Maryland  ought  to  interfere,  upon  the 
application  of  the  state,  by  injunction  and 
the  appointment  of  a  receiver  of  the  mort- 
gaged property.  State  v.  Northern  C.  R. 
Co.,  iS  Jl/d.  193. 

18.  MisniHiiagcniciit  of  officers.— 
An  action  may  be  brought  by  the  attorney- 
general,  in  the  name  of  the  people,  against  a 
corporation  and  its  officers,  on  the  ground 
of  mismanagement,  for  the  purpose  of  com- 
pelling them  to  account,  and  for  their  re- 
moviil  and  for  the  appointment  of  a  receiv- 
er. People  v.  Bntf,  9  AM.  A\  Cas.  {N.  V.) 
153,  60  NoTV.  Pr.  I. 

When  the  president  of  a  company  takes 
an  assignment  of  the  contract  for  the  con- 
struction of  the  railroad,  obtains  all  the  se- 
curities under  pretense  of  paying  the  nomi- 
nal contractor,  and,  as  chief  engineer,  makes 
to  himself,  as  contractor,  certificates  for 
work  done,  and  then  as  president  pays  him- 
self many  hundred  thousand  dollars  in  ad- 
vance of  what  the  original  contractor  was 
entitled  to  receive  under  the  contract,  am- 
ple cause  is  shown  for  the  appointment  of 
a  receiver,  and  the  duty  of  the  attorney- 
general  to  bring  an  action  becomes  impera- 
tive. People  V.  Bruff,  9  Abb.  N.  Cas.  {AL  Y.) 
153,  60  Hoii>.  Pr.  I. 

19.  Suits  by  jiidgiiient  creditors.— 
(i)  In  federal  courts. — Mere  insolvency  may 
or  may  not  call  for  the  appointment  of  a 
receiver.  Farmers'  L.  &•  T.  Co.  v.  Chicago 
&*  A.  P.  Co.,  24  Am.  &^Eng.  P.  Cas.  166,27 
Fed.  Rep.  146. 

A  court  in  its  discretion  may  appoint  a 
receiver  for  an  insolvent  railroad,  on  the 
application  of  a  judgment  creditor,  without 
first  requiring  him  to  sue  out  execution, 
and  obtain  a  return  thereon  of  nulla  bona, 
■where  the  petition  alleges  that  snrh  execu- 


tion would  result  in  expense  and  delay,  and 
be  unavailing,  and  that  if  the  property 
should  be  sold  under  existing  mortgages  it 
would  be  sacrificed,  but  if  kept  together 
and  carefully  managed  it  would  pay  ex- 
penses, and  a  large  revenue  annually  to  the 
discharge  of  debts.  Sai^e  v.  Memphis  &•  L. 
R.  R.  Co.,  35  Am.  <3-  Fng.  R.  Cas.  40,  125 
[/.  S.  361,  8  Sup.  Ct.  Rep.  887.— Fol- 
lowed IN  Farmers'  L.  «&  T.  Co.  v.  Kansas 
City,  W.  &  N.  W.  R.  Co.,  53  Fed.  Rep. 
182. 

Where  a  company  mortgages  its  proper- 
ty and  becomes  insolvent,  and  the  former 
trustee  is  dead,  having  made  no  reports  of 
the  manner  in  which  he  performed  his  trust, 
and  other  parties  are  in  possession  of  the 
road  acting  in  a  manner  hostile  to  the  de- 
crees of  tlie  court,  a  receiver  should  be  ap- 
pointed. Billv.  Ne7s/  Albany,  etc.,  R.  Co.,  2 
Piss.  ( U.  S. )  390. 

A  mortgage  upon  canal  property  provided 
that  possession  should  remain  in  the  com- 
pany, unler.s  it  affirmatively  appeared  that  a 
default  resulted  from  some  cause  other  than 
a  failure  ot  business.  A  bondholder,  suing 
for  the  benefit  of  all,  filed  a  bill  asking  tiie 
appointment  of  a  receiver,  but  failed  to  sh(jw 
that  the  default  resulted  from  some  other 
cause  than  a  failure  of  business.  Held,  tliat 
the  court  would  refuse  a  receiver ;  but  as 
the  company  was  utterly  insolvent  and  liad 
paid  no  net  income  for  some  years,  but  by 
proper  management  the  income  might  he 
made  sufficient  to  pay  interest  on  the  bonds, 
the  court  would  retain  the  bill  and  require 
the  company  to  make  quarterly  reports  of 
its  business,  and  grant  such  further  relief 
as  tlie  bondholders  might  ask  for.  Stewart 
v.  Chesapeake  &*  O.  Canal  Co.,  4  Hughes 
{U.  S.)  47,  5  Fed.  Rep.  149. 

(2)  In  state  courts.— The  case  ought  to  be 
one  of  urgency  to  justify  a  court  in  appoint- 
ing a  receiver  to  manage  and  operate  the 
business  ot  a  railroad  at  all  ;  and  officers 
conducting  such  a  business,  to  whoni  no 
fraud  or  fault  is  imputed,  Should  not  be  dis- 
placed from  the  ad  interim  management, 
pending  litigation,  merely  because  the  cor- 
poration is  insolvent.  It  might,  instead, 
be  sometimes  more  expedient  to  require 
the  earnings  of  the  road  to  be  paid  over  to, 
and  disbursed  by,  a  receiver  appointed  by 
the  court,  and  to  prevent  by  injunction  the 
interference  of  others  vvith  the  manage- 
ment in  the  meantime.  Meyer  v.  Johiistu//, 
53  Ala.  237,  II  Am.  Ry.  R«p.  467.— Review  • 


1173 


RECEIVERS,  20. 


ING  Gardner  v.  London,  C.  &  D.  R.  Co.,  L. 

R.  2  Cll.   20I. 

Where  a  railroad  corporation  has  been 
declared  bankrupt,  and  interest  has  accumu- 
lated on  its  bonds  exceeding  tiie  vahie  of 
the  property  mortgaged  to  secure  them,  and 
purchasers  of  the  equity  of  redemption  at 
tile  assignees'  sale  are  in  possession  of  tlie 
rc.J  and  mortgaged  property,  receiving  the 
incomes  whicii  the  mortgage  entitles  the 
mortgagee  to  take,  and  using  the  property 
for  their  exclusive  use  and  benefit,  the  ap- 
pointment of  .•  receiver  is  not  an  interfer- 
ence with  the  corporate  authority  over  the 
road,  or  a  disturbance  of  the  corporate  pos- 
session, but  merely  of  that  of  the  purchas- 
ers. Kelly  V.  Alabama  <S>»  C.  R.  Co.,  58  Ala. 
489.  21  Am.  Ry.  Rep.  138. 

The  allegation  of  insolvency,  made  with 
respect  to  a  railway  corporation  in  a  bill  for 
a  receiver,  is  sustained  by  proof  that  tlie 
corporation  had  acquiesced  in  the  construc- 
tion of  its  roadbed  by  a  companion  cor- 
poration which  had  either  paid  for  or 
pledged  its  own  credit  for  the  cost  of  such 
construction,  and  that  debts  honestly  due 
and  owing  therefor  were  outstanding,  and 
suits  pending  that  the  defendant  corpora- 
tion had  neither  means  nor  prospects  of  set- 
tling. Tuckahoe  <&>•  C.  M.  R.  Co.  v.  Baker, 
49  '^•J-  Eq.  581,  25  All:  Rep.  402. 

More  than  the  entire  capital  stock  of  de- 
fendant company  was  expended  in  building 
and  equipping  its  road,  and  an  indebted- 
ness for  current  expenses  and  taxes  in- 
curred. Bonds  were  issued,  but  the  indebt- 
edness had  not  been  liquidated  nor  the 
interest  on  the  bonds  paid.  A  New  Jersey 
statute  declares  that  when  a  company  shall 
become  insolvent,  or  shall  suspend  its 
business  for  want  of  funds  to  carry  on  the 
same,  a  receiver  may  be  appointed.  Under 
these  circumstances  a  bill  was  filed  and  a 
receiver  appointed.  Upon  a  motion  to  dis- 
solve and  dismiss — helit,  that  the  facts  justi- 
fied the  conclusion  that  the  company  was 
insolvent  within  the  meaning  of  the  statute 
and  authorized  the  appointment  of  a  re- 
ceiver. Sewell  v.  Cape  May  &*  S.  P,  R.  Co., 
(N.  J.  Eg.)  io  Am.  &«•  Eng.  R.  Cas.  155,  9 
Ail.  Rep.  785. 

.     IV.  THE  APPLICATION,  AND  HOW 
DISPOSED  OF. 

20.  Time  to  apply.— When  a  railroad 
corporation,  with  its  well-known  obligations 


to  the  public,  has  become  entirely  insolvent 
and  unable  to  pay  the  interest  upon  its  se- 
cured debts,  unable  to  pay  its  floating  debt, 
unable  to  pay  the  sums  due  its  connecting 
lines,  unable  to  borrow  money,  and  is  in 
peril  of  the  breaking  up  and  destruction  of 
its  business,  and  confesses  this  inability,  al- 
though no  default  has  yet  taken  place  upon 
the  securities  owned  by  tiie  orator,  but  a 
default  is  imminent  and  manifest,  a  Ciise 
has  ai-isen  where,  upon  a  bill  for  an  in- 
junction against  attacks  upon  the  mort- 
gaged property  and  a  receivership  to  protect 
the  property  of  the  corporation  against 
peril,  a  temporary  receiver  may  properly  and 
wisely  be  appointed.  Brassey  v.  Ne^u  York 
&'N.  E.  R.  Co.,  17  Am.  &^  Eng.  R.  Cas. 
285,  22  Blatchf.  {U.  S.)  72,  19  Fed.  Rep. 
663. 

An  act  incorporating  a  railroad  company 
repealed  the  charter  of  an  existing  com- 
pany, and  authorized  the  new  one  to  take 
the  tracks  of  the  old,  and  made  provision 
for  compensation  therefor.  The  tracks 
were  taken,  and  a  petition  for  damages  was 
duly  filed.  Pending  this  petition,  the  three 
years  allowed  by  the  Mass.  Gen.  St.  cli.  68, 
§  36,  for  a  corporation  whose  charter  is  an- 
nulled to  close  its  business  expired  ;  and, 
no  receiver  having  been  appointed  under 
section  37,  the  petition  was  dismissed.  Re- 
fore  the  expiration  of  the  time  allowed  for 
filing  a  petition  for  damages,  a  stockholder 
of  the  old  company  brought  a  bill  in 
equity  to  restrain  the  new  one  from  doing 
business.  After  the  dismissal  of  the  peti- 
tion for  damages,  but  within  a  year  after 
the  bill  in  equity  was  decided,  a  creditor  of 
the  old  company  brought  a  bill  in  equity 
against  the  new  one  for  the  appointment  of 
a  receiver  to  prosecute  the  claim  for  dam- 
ages by  reason  of  the  taking  of  the  tracks. 
Held,  that  the  bill  could  not  be  maintained ; 
and  that  the  Gen.  St.  ch.  63,  §  30,  did  not 
apply.  Btgelo7u  v.  Union  Freight  R.  Co.,  20 
Am.  Or*  Eng.  R.  Cas.  425,  137  Mass.  478. 

Mich.  Comp.  Laws,  §  6565,  providing  for 
the  sequestration  of  corporate  property  and 
for  the  appointment  of  a  receiver,  does  not 
contemplate  that  an  appointment  shall  pre- 
cede an  adjudication  or  the  adjudication  a 
hearing  on  .lotice.  Cook  v.  Detroit  &'  M. 
R.  Co..  12  Am.  &*  Eng.  R.  Cas.  459,4$  Mich. 
45^-.  8  N.  IV.  Rep.  74. 

Tlie  three-year  limitation  in  reference  to 
the  appointment  of  receivers  under  N.  Car. 
Rev.  Code,  ch.  26,  §  6,  does  not  apply  where 


RECEIVERS,  21-23. 


iir-i 


a 


ntirely  insolvent 
rest  upon  its  se- 
its  floating  debt, 
e  its  connecting 
noncy,  and  is  in 
nd  destruction  of 
this  inability,  al- 
taken  place  upon 

the  orator,  but  a 
manifest,  a  case 
bill  for  an  in- 
upon  the  niort- 
vership  to  protect 

rporation  against 
may  properly  and 

issey  V.  New  York 
&^  Eng.  K.  Cas. 
72,  19  Fei/.  Kcp. 

railroad  company 

an  existing  corn- 
new  one  to  take 
id  made  provision 
for.      The    tracks 
n  for  damages  was 

petition,  the  three 
iss.  Gen.  St.  ch.  68, 
;hose  charter  is  an- 
ness  expired ;  and, 
n   appointed  under 
ras  dismissed.     Be- 
le  time  allowed  for 
lages,  a  stockholder 
brought    a    bill    in 
lew  one  from  doing 
imissal  of  the  peti- 
ivithin  a  year  after 
jcided,  a  creditor  of 
ht  a  bill   in  equity 
the  appointment  of 
the  claim  for  dani- 
iking  of  the  tracks, 
not  be  maintained ; 
;h.  63,  §  30,  did   not 
;«  Freight  R.  Co.,  20 
5,  137  i1/rt«.  478. 
6565,  providing  for 
porate  property  and 
a  receiver,  does  not 
pointment  shall  pre- 

the  adjudication  a 
ok  v.  Detroit  &•  M. 
A'.  Cas.  459,45  Mich. 

tion  in  reference  to 
eivers  under  N.  Car. 
Ices  not  apply  where 


the  receiver  is  appointed  in  less  than  three 
years  after  the  corporation  ceased  to  exist, 
but  does  not  give  bond  until  after  the  three 
years.  Young  v.  Rollins,  25  Am.  iS-  Eng.  R. 
Cas.  646,  90  A^.  Car.  125. 

//  seems,  that  the  limitation  of  two  years 
would  not  conclude  the  right  to  have  a  re- 
ceiver appointed,  if  the  facts  otherwise  re- 
quire such  control  of  property  in  litigation. 
The  refusal  by  the  trial  court  to  appoint  a 
receiver  will  not  affect  the  power  on  final 
trial  to  make  such  appointment  when  called 
for  by  the  facts.  Becker  v.  Gtt//  City  St.  7i. 
<S-  R.  E.  Co.,  80  Tex.  475.  15  S.  \V.  Rep. 
1094. 

A  judgment  creditor  gains  no  priority  by 
obtaining  a  receivership  order.  When  such 
order  has  been  made  and  is  in  force,  another 
judgment  creditor  gains  no  benefit  what- 
ever by  obtaining  a  similar  order,  and  such 
subsequent  order  ought  not  to  be  made,  and 
if  made,  should  be  discharged.  In  re  Mer- 
sey R.  Co.,  L.  R.  37  Ch.  D.  610. 

21.  Must  be  an  action  pending.— 
N.  Y.  Act  of  1870,  ch.  151,  provides  that  a 
judgment  creditor  of  a  corporation,  after 
execution  returned  not  satisfied,  may  apply 
"by  a  civil  action  "  for  the  appointment  of 
a  receiver.  Plaintiff  made  an  aflfidavit  that 
he  was  a  judgment  creditor  of  defendant 
corporation,  and  that  execution  had  been 
returned  not  satisfied,  and  gave  notice  and 
moved  for  the  appointment  of  a  receiver. 
Held,  that  this  was  not  a  compliance  with 
the  statute,  and  the  proceeding  was  irregu- 
lar. Clinch  V.  South  Side  R.  Co.,  1  Hun  (JV. 
Y.)  636,  4  T.&'C.  224. 

22.  Ex  parte  applications.— In  view 
of  the  fact  that  it  seems  to  be  the  practice 
in  federal  courts  to  grant  an  ancillary  re- 
ceivership on  ex  parte  application,  the  cir- 
cuit court  for  the  first  circuit  will  follow 
the  practice,  but  without  prejudice,  to  a 
full  consideration  of  the  question,  if  a  mo- 
tion is  afterwards  made  to  dissolve  or  annul 
the  order.  Piatt  v.  Philadelphia  &>  R.  R. 
Co.,  54  Fed.  Rep.  569. 

A  court  is  not  justified  in  appointing  a 
receiver  ex  parte  when  the  complaint  does 
not  show  that  the  property  or  any  part  of 
the  same  is  about  to  be  wasted,  misappro- 
priated, or  removed  beyond  the  jurisdiction 
of  the  court,  and  that  delay  m  granting  the 
relief  might  entirely  defeat  the  object  of  the 
suit.  Chicago  &^  S.  E.  R.  Co.  v.  Cason,  133 
Ind.  49,  32  N.  E.  Rep.  827. 

A  receiver  cannot  be  appointed  ex  parte 


in  a  proceeding  by  creditors  to  wind  up  an 
insolvent  corporation,  and  pending  the  deci- 
sion on  a  demurrer  whereby  the  right  to  file 
the  bill  is  put  in  issue.  Cock  v.  Detroit  &' 
M.  R.  Co.,  12  Am.  *^  Eng.  R.  Cas.  459,  45 
Mich.  453.  8  A",  ir.  Rep.  74. 

The  court  will  not  grant  a  sequestration 
or  appoint  a  receiver  of  a  corporation 
against  whom  an  execution  has  been  re- 
turned unsatisfied  upon  an  ex  parte  appli- 
cation of  the  judgment  creditor.  But  upon 
filing  a  petition  duly  verified,  an  order  to 
show  cause,  at  a  futur_  day,  why  the  prayer 
of  the  petitioner  should  not  be  granted 
may  be  entered  ;  and  an  injunction  will  be 
allowed  restraining  the  officers  of  the  com- 
pany from  selling,  assigning,  transferring,  or 
encumbering  the  property  or  effects  of  the 
corporation  in  the  meantime.  Devoe  v. 
Ithaca  &^  O.  R.  Co.,  5  Paige  (A^  F.)  521.— 
Reviewed  in  Ramsey  v.  Erie  R.  Co.,  38 
How.  Pr.  (N.  Y.)  193. 

A  receiver  cannot  be  appointed  ex  parti 
before  the  defendant  has  had. an  opportu- 
nity to  be  heard,  except  in  those  cases  where 
he  is  out  of  the  jurisdiction  of  the  court 
and  cannot  be  found,  or  where  for  some 
reason  it  becomes  absolutely  necessary  for 
the  court  to  interfere  before  there  is  time 
to  give  notice  to  the  opposite  party  to  pre- 
vent the  destruction  or  loss  of  property. 
People  V.  Albany  &^  S.  R.  Co.,  i  Lans.  {JV. 
Y.)  308.  7  Aid.  Pr.  A^  S.  265,  38  How.  Pr. 
228;  modified  in  5  Lans.  25,  which  is  re- 
versed in  57  A^.   Y.  161. 

When  a  corporation  has  become  extinct 
by  legislative  enactment,  and  its  powers  and 
property  transferred  to  a  new  corporation 
substituted  for  it,  the  courts  have  no  power, 
on  an  ex  parte  application,  to  appoint  a  re- 
ceiver of  the  assets  of  the  defunct  corpora- 
tion. Young  V.  Rollins,  12  Am.  6-  Eng.  R. 
Cas.  455,  85  A^.  Car.  485. 

23.  Notice. — A  second  mortgagee  filed 
a  bill  for  a  receiver  for  railroad  property, 
making  the  first  mortgagee  a  party,  and  ad- 
mitting the  priority  of  the  lien  of  the  first 
mortgage.  A  receiver  was  appointed  with- 
out notice  to  the  first  mortgagee,  but  a  copy 
was  served  on  him  three  days  afterwards, 
with  a  notice  to  appear  promptly  and  pro- 
tect the  interest  of  tlie  first  mortgage  bond- 
holders. Held,  no  ground  for  charging  that 
the  bill  was  fraudulent  as  attempting  to 
create  a  receivership  for  the  sole  benefit  of 
the  second  mortgage  bondholders.  Mi/ten- 
berger  v.  Logansport,  C.  &*  S.  IV,  R.  Co.,  12 


m 


1174 


RECEIVERS,  24,  25. 


Il 


A»t.  <S-  Ettff.  J7.  Cas,  464,  106  U.S.  286.  i 
Sufi.  a.  Rep.  140. 

Service  of  notice  of  a  motion  for  the 
appointniciit  of  a  receiver  was  marie  upon 
the  vice-president  of  defendant  company, 
which  was  lej^ai  service  on  the  company ; 
but  he  fraudulently  concealed  the  service, 
by  means  of  v/hich  the  company  failed  to 
resist  the  appointment.  Held,  that  the  court 
should  reopen  the  case,  anrl  allow  the  com- 
pany to  move  to  vacate  the  a[)pointment. 
Allen  V.  Dallas  &>  IV.  li.  Co..  3  lV(yoils  {U. 
S.)  316. 

Where  no  serious  injury  to  the  property 
involved  in  the  controversy  can  result  from 
tlie  delay,  notice  sliould  always  be  given 
before  a  receiver  is  appointed.  A  case  of 
^;reat  urt-ency  should  he  made  to  appear  to 
iustify  such  an  appointment  without  notice, 
and,  wlu-rcver  an  injunction  or  restraining 
order  is  sudicicnt  to  protect  the  rights  of 
the  plaintid,  no  receiver  should  be  appoint- 
ed. The  appointment  of  a  manager  of  a 
line  of  railway  is  an  extraordinary  exercise 
of  power.  Such  appointment  siiould  be 
made  only  in  extreme  cases  clearly  justify- 
ing such  action.  State  v.  Jacksonville,  P. 
&*  M.  R.  Co.,  15  Fla.  201.  Cincinnati,  H. 
&-  D.  R.  Co.  V.  Jcwett,  8  Am.  <&*  Eng.  R.  Cas. 
702,  37  OAio  St.  649. 

In  an  action  for  the  appointment  of  a  re- 
ceiver without  notice,  the  sufficiency  of  the 
cause  required  to  be  shown  must  be  (i)  the 
necessity  of  the  appointment  of  a  receiver 
at  all ;  (2)  the  necessity  for  not  giving  notice 
to  the  adverse  party  ;  and  sufficient  cause 
not  being  defined  in  the  statute,  that  ques- 
tion must  be  determined  by  the  adjudged 
cases  and  precedents.  A  statement  in  a 
complaint  that  there  is  an  emergency  for 
the  immediate  appointment  of  a  receiver 
without  notice,  being  a  mere  statement  of 
opinion,  is  not  a  sufficient  showing,  but  the 
facts  on  which  the  opinion  is  founded  should 
be  pleaded.  Wabash  R.  Co.  v.  Dykcman, 
133  Ind.  56,  32  A'.  E.  Rep.  823. 

An  action  for  the  appointment  of  a  re- 
ceiver of  a  corporation,  and  to  sequestrate 
its  property,  is  an  action  for  "  a  distribution 
of  its  assets"  within  the  meaning  of  N.  Y. 
Act  of  1883,  ch.  378,  §  8,  requiring  copies  of 
notices  and  motion  papers  in  such  actions 
to  be  served  upon  the  attorney-general ;  and 
the  appointment  of  a  receiver  witiiout  com- 
pliance with  the  section  is  void.  Whitney 
V.  Ne7u  York  6-  A.  R.  Co..  66  Hoiv.  Pr.  {N. 
Y.)  436,  32  Hwt  164,  5  Civ.  Pro.  118. 


24.  PurtloH.— Where  a  second  mortga- 
gee of  a  railroad  files  a  bill  for  a  receiver, 
the  first  mortgagee  is  a  necessary  [jarty  ;  and 
the  order  appointing  the  receiver  being 
served  on  the  first  mortgagee  three  days 
after  made,  it  becomes  his  duty  to  appear 
promptly  aiul  protect  the  interests  of  the 
first  mortgage  bondholders.  Miltcnherger 
v.  l.ogansport,  C.  &^  S.  W.  R.  Co..  12  Am.  &* 
En/.  R.  Cas.  464,  106  U.  S.  286,  i  .S///.  Ct. 
Rep.  140. 

Where  railroad  property  is  in  the  hands 
of  a  third  person,  as  a  purchaser  under  a 
judgment,  who  is  not  a  party  to  the  suit,  the 
court  will  refuse  to  appoint  a  receiver. 
Searles  v.  Jacksonville,  P.  &*  M.  R.  Co..  2 
Woods  (U.  S.)62i. 

A  judgment  creditor  of  a  railroad  com- 
pany filed  a  bill  for  the  appointment  of  a 
receiver  to  collect  unpaid  sul)scriptif)ns  to 
stock,  making  the  company  and  certain  of 
the  stockholders  defendants.  Pending  a 
hearing  before  the  master  other  creditors 
were  made  plaintiffs,  and  the  remaining 
stockholders  were  made  defendants,  but  the 
pleadings  were  not  amended.  Jfeld,  that  the 
appointment  of  a  receiver  without  an  issue 
joined  as  to  the  added  defendants  was  not 
error.  Bailey  \.  Pittsburgh  Coal  R.  Co..  139 
Pa.  St.  213,  21  Atl.  Rep.  72. 

25.  Siiflliciciicy  of  tli»  bill.  — A  bill 
alleging  that  plaintiff  holds  a  majority  of 
stock  in  a  consolidated  railroad  company, 
and  that  his  co-plaintiffs  are  judgment  cred- 
itors of  one  of  the  original  companies;  that 
the  business  of  the  company  is  in  a  i)recari- 
ous  condition,  and  that  a  receiver  is  necessary 
for  the  interest  of  all  the  parties  to  prevent 
levying  executions  and  consequent  loss,  with 
a  prayer  for  a  receiver  and  an  adjustment  of 
all  claims  to  and  with  creditors,  is  sufiicient 
to  enable  a  court  to  administer  the  affairs  of 
the  company,  and  marshal  tlie  debts,  mak- 
ing necessary  parties  before  deciding  on  the 
merits.  Union  Trust  d  v.  Illinois  Midlanu 
R.  Co..  25  ylm.  &^  Eng.  R.  Cas.  560,  117  U.  S. 
434,  6  Sup.  Ct.  Rep.  809.  —  QuoTF.n  m 
Stevens  v.  Union  Trust  Co.,  57  Hun  498,  33 
N.  Y.  S.  R.  130. 

A  corporation  will  not  be  declared  insol- 
vent and  a  receiver  appointed  on  naked 
statements  in  the  bill  that  it  is  insolvent  and 
has  suspended  business  for  want  of  funds. 
Such  facts  must  be  set  out  as  will  show  the 
insolvency.  New  Foundland  R.  Constr.  Co, 
v.  Schack.  40  N.J.  Eq.  222,  i  Atl.  Rep.  23. 

An  order  appointing  a  receiver  of  an  ex- 


I  second  mortfja- 

II  for  a  receiver, 
cssary  party ;  and 

receiver  being 
af,'('c  three  days 
s  duty  to  appear 
interests  of  the 
"s.  MiHt'ttberf^cr 
K.  Co..  12  Am.  &* 
286,  I  Si//>.  U. 

'  is  in  the  hands 
irchascr  under  a 
ty  to  the  suit,  the 
oint  a  receiver. 
<S-  JA  i^.  Co.,  2 

a  railroad  com- 
ppointment  of  a 
sul)scriptif)ns  to 
y  and  certain  of 
Us.  Pendinfj  a 
'  other  creditors 
the  remaining 
fendants,  hut  the 
i,  //^A/,  that  the 
without  an  issue 
endants  was  not 
!  Coal  R.  Co.,  139 

i<!  bill.  — A  bill 
ds  a  majority  of 
lilroad  company, 
i  judgment  cred- 
companies;  that 
ly  is  in  a  precari- 
eiver  is  necessary 
arlies  to  jjrevent 
equent  loss,  with 
in  adjustment  of 
tors,  is  sufficient 
Iter  the  affairs  of 
the  debts,  mak- 

di'ciding  on  the 
Illinois  A/idhtfici 
tis.  560,  117  U.  S. 

—  Quoted  in 
.  57  Hun  498,  33 

;  declared  insol- 
inted  on  naked 
is  insolvent  and 
want  of  funds. 
IS  will  show  the 
d  A'.  Cotts/f.  Co. 
I  A/l  Rep.  23. 
ceiver  of  an  ex- 


RECEIVERS,  20,  27. 


1175 


tinct  corporation  cannot  properly  be  made 
except  in  a  proceeding  to  which  its  succes- 
sor or  substitute  is  a  party.  )  ^nuif^  v.  Rol- 
lins, 12  „-////.  (S-  Eiig.  R.  Cas.  455,  85  N. 
Car.  485. 

When  the  prayer  in  a  bill  which  seeks 
the  appointment  of  a  receiver  describes  the 
pr(»perty  for  •!  -  control  of  which  the  re- 
ceiver is  askc  ,  other  property,  tliougli  in- 
cluded in  the  order  making  the  apijoint- 
nient,  if  the  description  given  thereof  is  not 
in  the  prayer  of  the  bill,  is  not  thereby 
placed  in  custotlia  Icgis ;  as  to  it,  the  juris- 
diction of  the  court  not  having  attached, 
the  order  placing  it  in  tiie  hands  of  the 
receiver  is  without  authority  of  law  and 
void.  St.  Louis,  A.  &^  T.  R.  Co.  v.  Whit- 
aker,  68  Tc.x.  630,  5  .V.  \V.  Rep.  448. 

aO.  or  petition.— Under  the  Rail- 
way Companies  Act,  1867,  g  4,  a  judgment 
creditor  is  entitled  to  the  appointment  of  a 
manager  where  his  petition  is  supi)orted  by 
an  .'iindavit  to  the  cfTect  that  he  is  an  unpaid 
judgment  creditor  and  that  the  company  is 
a  going  concern  conducting  its  own  busi- 
ness. In  re  Manc/iester  &*  M.  R.  Co.,  I.. 
R.  14  Ch.  D.  645,  49  L.  J.  Cli.  D.  365,  42  L. 
r.  714. 

Where,  in  a  petition  for  the  appointment 
of  a  receiver  of  a  railroad  company,  plain- 
tiffs claim  as  heirs  and  legatees  of  their 
father,  who,  they  allege,  owned  all  the  stock 
of  the  company,  it  is  not  error  to  dismiss 
without  prejudice  a  subsequent  pleading, 
filed  by  them  shortly  before  trial,  which  re- 
cites that  it  is  filed  in  lieu  of  their  original 
petition,  and  in  which  they  allege  that  their 
father  fraudulently  converted  community 
property,  one  half  of  which  belonged  to 
their  mother,  to  the  building  of  the  road, 
and  claim  as  heirs  of  their  mother.  Rlc- 
Ilhenny  v.  Bins,  80  Tex.  i,  13  S.  W.  Rep. 
655. 

The  court  of  chancery  appointed  receivers 
of  certain  railroads,  pursuant  to  a  mandate 
of  the  supreme  court  that  "said  receivers 
and  said  roads  and  property  shall  be  at  all 
times  subject  to  the  jurisdiction  and  orders  " 
of  the  court  of  chancery.  A  consent  decree 
subsequently  entered  provided  that  the 
original  cause  should  be  continued  on  the 
docket  of  the  court  of  chancery,  and  that 
any  party  might  "apply  to  the  court  from 
time  to  time  for  further  orders  in  the 
premises,  as  he  or  it  may  be  advised."  A 
special  act  of  the  legislature,  authorizing  a 
compromise  adjustment  to  be  carried  into 


eflect,  provided  for  petiiions  in  that  behalf 
instead  of  bills.  The  original  parlies  to  llie 
cause  continued,  personally  or  by  succes- 
sion, to  be  parties  for  all  the  purposes  for 
which  the  cause  had  been  kept  on  foot. 
Other  parties  became  interested  after  the 
consent  decree,  by  connecting  themselves 
with  the  current  administration  of  the  sub- 
ject-matter (if  the  trust,  an<l  thus,  at  least  as 
far  as  foriu  and  judicial  iirocediue  wen:  con- 
cerned, subjectefl  themselves  to  the  scope 
and  operation  of  that  and  subsequent  orders 
and  decrees.  Ilclti,  that  as  the  subject-mat- 
ter of  the  petition  in  this  case,  and  the 
grounds  on  which  it  asked  the  action  of  the 
court,  consisted  f)f  the  proceedings,  fie- 
crees,  and  orders  in  the  original  cause  as 
thus  kept  pending,  and  of  the  administra- 
tion of  the  property  thereunder,  a  petition 
was  the  form  and  manner  for  presenting 
those  matters  for  the  consideration  and 
action  of  the  court  conteniplated  by  the  law, 
under  the  original  decree,  and  by  the  parties 
under  the  special  act  of  the  legislature  and 
the  ensuing  consent  decree.  Vermont  &* 
C.  R.  Co.  V.  Vermont  C.  R.  Co.,  50  Vt.  500, 
14  Aw.  Rj'.  Rep.  497. 

27.  or  coiiiiilaint.— A  stockholder 

may,  under  some  circumstances,  have  a 
receiver  appointed  for  his  corporation,  as 
where  the  company  is  insolvent,  or  where 
he  asks  that  it  be  dissolved  and  wound  up ; 
yet  where  no  such  charge  is  made,  and  the 
prayer  is  for  a  general  receivership,  it  will  be 
refused,  where  its  effect  would  be  to  remove 
ail  of  the  directors.  Belmont  v.  Erie  R.  Co., 
i,2  Parb.  (A^  Y.)  637. — Approving  Fisk  v. 
Chicago  &  R.  I.  R.  Co.,  36  How.  Pr.  20. 

A  complaint  must  show  that  the  plaintiflf 
has  such  an  ititerest  in  the  controversy  ;i;» 
entitles  him  to  relief.  So  where  a  com- 
plaint fails  to  show  that  plaintiff  has  any 
standing  in  court,  either  as  a  creditor,  bond- 
holder, or  stockholder  of  a  railroad  com- 
pany, which  would  entitle  him  to  a  receiver 
or  referee,  no  relief  can  be  granted.  Ram- 
sey V.  Erie  R.  Co.,  38  Ihrni.  Pr.  (A'.  ]•'.)  193, 
7  AM).  Pr.  N.  S.  I56.— Rkvikwing  Galwey 
71.  United  States  Steam  .Sugar  Refining  Co., 
36  Barb.  (N.  Y.)  257  ;  People  v.  Norton,  i 
Paige  (N.  Y.)  17;  Devoe  v.  Ithaca  &  O.  R. 
Co.,  5  Paige  521  ;  Gibson  v.  Martin,  8  Paige 
481. 

An  order  was  granted  to  show  cause  why 
a  receiver  should  not  be  appointed.  Be- 
fore the  day  fixed  an  application  was  made 
for  an  order  to  show  cause  why  the  com- 


rrr 

1 


1176 


RECEIVERS,  28-31. 


i 


I 


plaint  should  not  be  made  more  definite, 
and  for  a  stay  until  a  decisiDii  of  the  appli- 
cation. The  judjjfe  f;raiited  the  order  to 
show  cause,  but  refused  the  application  for 
the  stay,  and  an  appeal  was  taken  to  the 
general  term  from  a  denial  of  the  stay 
Held,  that  the  motion  to  make  more  definite 
sli'iuld  be  decided  first;  but  the  general 
term,  on  appeal,  would  not  presume  that 
the  trial  court  would  not  act  liropcrly,  and 
would  refuse  a  stay.  People  v.  Manlinltait. 
Ji.O>.,<)  Atib.  iV.  fas.  {X.  V.)  448.  24 //«/« 
662,  nieiii. 

28.  AllldavitH-l\Miiit(>r  uflldavitH. 
—  Wlien  the  defendant  in  an  application  lov 
a  provisional  remedy  meets  the  plaiiitilT's 
allegations  by  counter  alTidavits,  it  is  com- 
petent for  plaintifl  to  support  bis  original 
atlidavits  by  others  to  the  same  eflect  and 
in  reply  to  those  olTcred  by  the  defendant. 
Voting  V.  A'oll/fi.i,  12  ///«.  &^  i^»j[-  -/i''  Cas. 
455,  85  N.  Car.  485. 

20.  MattcrM  of  (Ivl'euMC.  —  Defendant 
corporation  resisted  an  application  by  a 
judgment  creditor  for  a  receiver,  and  as  a 
defense  alleged  that  the  judgment  was  ob- 
tained through  the  fraud  of  its  president. 
The  court  granted  time  to  make  a  motion 
to  open  the  judgment  on  that  ground,  but 
the  company  failed  to  make  any  motion,  or 
ask  that  the  judgment  be  opened.  Held, 
that  this  was  sufficient  to  authorize  the 
court  to  infer  that  the  defense  was  without 
merit.  Loder  v.  New  York,  U.  &•  O.  A'. 
Co..  4  //««  (/V.  F.)  22. 

80.  Tliu  order  of  appoiiitiiiciit, 
generally.  —  An  order  ai)pointing  a  re- 
ceiver and  an  advisory  board  to  take  pos- 
session of  a  railroad  with  all  its  property 
and  operate  it  for  the  benefit  of  its  credit- 
ors, stockholders,  and  all  others  interested, 
is  not  a  judicial,  but  an  administrative,  order, 
which  may  be  modified  or  changed  without 
the  consent  of  parties.  Ex  parte  Dunn,  8 
So.  Car.  207. 

In  an  action  in  the  name  of  the  state  for 
the  foreclosure  of  a  railroad  mortgage  and 
the  appointment  of  a  receiver,  on  motion 
of  the  attorney-general  an  (jrder  was  passed 
reciting  that,  as  the  state  cannot  be  re- 
quired to  give  security  as  other  plaintifTs, 
the  president  and  directors  of  the  company, 
under  the  order  of  and  subject  to  the  court, 
continue  in  the  possession  and  management 
of  the  property  of  the  company,  and  con- 
tinue to  conduct  and  carry  on  the  business 
of  the  company,  and  that  they  report  to  the 


court  at  such  times  as  ii  cquire.   Held, 

that  this  order  constituted  the  president 
and  directors  of  the  corporation  receivers, 
and  that  they  continued  in  the  management 
of  the  road  and  its  business  as  officers  of 
the  court  and  not  of  the  company.  (Simp* 
son,  C. J.,  dissenting.)  In  re  Fifty-Jour 
First  Mortgaj^e  Honds,  9  Am.  &*  F'li;.  A'. 
Cas.  739,  15  So.  Car.  304. —  Ki,\  11  WKn  IN  Ex 
parte  Carolina  Nat.  Bank,  iS  So.  Car.  289.- 
/«  re  y-'z/tv-foui  First  Mortgage  /lioiifs,  9 
Am.  &*  Fiii;.  A'.  Cas.  723,  15  .So.  Car.  51S. 

A  court  passed  an  order  which  had  the 
effect  of  constituting  the  'Ulcers  of  a  rail- 
road company  receivers  dl  the  road,  but 
this  did  not  seem  to  be  well  understood,  and 
the  company  continued  *">  elect  officers  and 
to  conduct  its  busincs  before.     During 

the  lime  the  company  note  in  its  cor- 

porate name  signed  Oj  j  president  and 
treasurer.  J/eld,  that  the  note  was  not 
made  or  received  with  reference  to  the  re- 
ceiver's fund,  and  tlie  rights  and  obligations 
of  the  parties  were  the  same  as  if  the  order 
had  not  been  made.     Fx  parte   Williams, 

12  Am.  &-•  ICng.  A'.  Cas.  425,  17  So.  Car.  396, 
ill.  What  provisions  are  iiroper.* 

— Upon  the  appointnient  of  a  r<;ceivcr  of 
all  the  property  and  effects  of  a  corporation, 
for  the  purpose  of  closing  up  its  affairs,  it  is 
proper  to  restrain  its  directors  and  officers 
from  collecting  debts  and  demands  due  to 
the  corporation,  and  from  paying  out,  as- 
signing, or  delivering  any  of  its  property, 
money,  or  effects  to  any  other  person,  or 
from  encumbering  such  property.  Aforgan 
v.  A'ew  York  &^  A.  A'.  Co.,  10  J'atge  (,N.  Y.) 
290. 

A  court  has  no  power,  in  a  suit  appointing 
a  receiver,  to  provide  that  claims  must  be 
established  by  intervention  within  a  time 
shorter  than  what  would  constitute  an  equi- 
table bar.  Kreta  v.  Texas  &^  P.  R.  Co.,  ( Tex, 
App.)  14  S.  IV.  Pep.  1067.— Following 
Texas  Pac.  R.  Co.  v.  Johnson,  76  Tex.  421, 

13  S.  VV.  Rep.  463. 

Though  the  court  should  properly,  under 
the  circumstances,  appoint  a  receiver  to 
take  charge  of  and  manage  the  road,  it  may 
not  be  proper  to  enjoin  the  directors  of 
the  company  from  doing  any  act  as  such. 
Stevens  v.  Davison,  18   Gratt.  (I'a.)  819. — 


to 


*  Power  of  court  on  appointing  receiver  to 
make  provision  for  payment  of  claims  accruing 
prior  to  receivership,  see  note,  9  Am.  &  Eng.  R. 
Cas.  718. 


RECEIVERS,  ;ia-34. 


1177 


cquire.   Held, 

tlic   president 

tion  receivers, 

inanaf{cinent 

its  oflicers  of 

p.iiiy.     (Simp. 

re  Fifty -four 

III.  &^  /:>(,'.    A', 

\  iKwr.n  IN  Ex 

So.  Car.  2.S9.- 

'(>",*,''''  /''•■'"'/■*■,  ij 

So.  Car.  5rS. 

wliich  had  ilie 

ct-rs  of  a  rail- 

tiie   road,  but 

nderstood,  and 

ect  officers  and 

jcfore.     During 

note  in  itscor- 

i  president  and 

note   was   not 

ence  to  tlie  re- 

and  obligations 

2  as  if  the  order 

6iirU'   U't'l/iams, 

17  So.  Car.  396. 

I  are  i>roper.* 

)f   a   receiver  of 

A  a  corporation, 

p  its  afTairs,  it  is 

;ors  and  officers 

Jcmands  due  to 

paying  out,  as- 

of  its  property, 

ither  person,  or 

iperty.    Aforgan 

10  Paige  {N.  Y.) 

1  suit  appointing 
claims  must  be 
1  within  a  time 
istitute  an  cqui- 
-  P.  R.  Co..  ( 7V.r. 
7.— Following 
on,  76  Tex.  421, 

properly,  under 
a  receiver  to 
the  road,  it  may 
he  directors  of 
ny  act  as  such. 
ft.  (r«.)  S19.— 


itmg   receiver  to 

claims  accruing 

9  Am.  &  Eng.  R. 


* 


Following  Gardner  v.  London,  C.  &  D.  R. 
Co.,  L.  R.  2  Ch.  201. 
iliS.    KflVct    of  the    ii|i|M»iiitiiu>ii(, 

jji'iienill.v.  -Wliere  a  court  has  been  com- 
pelled to  inUv.  possession  l»y  its  receiver  (jf 
a  railroad,  its  whole  power  over  it  is  con- 
fined lo  maki  1'^  necessary  repiiirs  and  pro- 
tecting the  properly.  As,  frotn  the  nature 
of  iht:  property,  it  must  be  continued  in 
operation  and  sold  as  u  going  concern  to 
prevent  serious  injury  and  ini|)airment  in 
value,  the  court  may  continue  the  running 
of  trains  and  the  usual  business  of  the  road, 
Willi  a  view  to  its  economical  con.scrvalion, 
and  if  the  income  is  insufficient  for  that 
purpr)se,  may  provide  the  recjuisitc  means 
by  creating  charges  upon  '  he  property, 
Meyer  \.  Johnston,  53  Ah.  237,  15  Am.  liy. 
J\'ep.  467.— Appliki)  in  McLane  7/.  Placer- 
ville  k  S.  V.  R.  Co.,  26  Am.  &  Eng.  R.  Cas. 
404,  66  Cal.  606. 

A  railroad  company  leased  certain 
grounds  to  an  elevator  company,  the  latter 
agreeing  that  it  would  not  sublet  the  ele- 
vator without  the  written  consent  of  the 
superintendent  of  the  road.  Subsequently 
the  road  passed  into  the  hands  of  a  receiver. 
Ifilif,  that  the  superintendent,  acting  by  di- 
rection of  the  receiver,  was  to  be  regarded 
as  the  superintendent  of  the  railroad,  within 
the  meaning  of  the  contract.  Kansas  City 
Ele^iator  Co.  v.  Union  Pac,  R.  Co.,  3  Mc- 
Crary  {U.  S.)  463,  17  Feci.  I\ep.  200. 

Intervener  filed  a  petition  in  a  suit  in  a 
federal  court,  setting  up  a  claim  under  what 
is  known  as  the  Missouri  Double  Damage 
Act,  against  a  railroad  which  the  federal 
court  had  placed  in  the  hands  of  a  receiver. 
It  appeared  by  a  decision  of  the  supreme 
court  of  the  state  that  the  act  was  not  appli- 
cable to  the  railroad,  but  intervener  insisted 
that  the  state  case  was  not  well  decided, 
and.  that  the  federal  court  ought  not  to 
follow  it.  It  was  clear  that  if  there  had 
been  no  receiver  the  rights  of  the  intervener 
would  be  determ'iied  by  the  laws  of  the 
state  as  interpreted  by  its  supreme  court. 
Held,  that  the  fact  that  a  receiver  had  been 
appointed  ought  not  to  give  a  citizen  of  the 
state  any  greater  rights  than  he  would 
otherwise  have,  and  for  these  reasons  the 
federal  court  will  follow  the  decision  of  the 
state  court.  Central  Trust  Co.  v.  IVafias/i. 
St.  I..  &^  P.  R.  Co.,  30  Fed.  Rep.  344. 

Where  the  only  duty  of  the  receiver  of 
a  road  appoiiiied  by  a  court  of  competent 
jurisdiction  is    to   t;ike   charge   of   the  net 


earninijs— the  management  of  the  road  re- 
maining with  the  company — the  relations 
of  the  company  to  tlie  public  are  not 
chan),'ed.  Jones  v.  Pennsylvania  R,  Co.,  8 
Mackey(I).  C.)  178. 

A  court  of  e(itiity  having  in  charge  the 
mortgaged  properly  of  a  railroad  conipany 
is  auth(jrized  to  do  all  acts  that  may  be 
necessary —within  its  ct  rporatc  power—to 
preserve  the  propcirty  .  .id  give  it  additional 
value,  not  only  for  the  benefit  of  the  lien 
creditors,  but  also  for  the  benefit  of  the 
company,  whose  possession  the  court  has 
displaced  by  the  appointment  of  a  receiver, 
and  by  taking  into  its  own  hands  the  pro()- 
crtv,  rights,  works,  and  franchises  of  the 
company.  Any  act.  it  would  seem,  neces- 
sary for  the  protection  and  preservation  of 
the  property,  is  a  legitimate  and  proper  act, 
and  whatever  is  manifestly  appropriate  to 
such  preservation,  or  to  th_-  anhanccment 
of  the  value  of  the  property,  not  in  excess 
of  the  powers  of  the  corporation,  will  always 
be  upheld  and  enforced  by  the  courts. 
Gibert  v.  Washington  City,  V.  M.  A-  G.  S. 
R.  Co.,  I  Am.  &*  Eng.  R.  Cas.  473,  33  Gratt. 
(Va.)  586. 

:i;{.  Diirntioii  of  the  appointment. 
— The  appointment  of  a  receiver  conti-iues 
during  the  pendency  of  the  suit  and  until 
the  case  is  tried  and  decided,  unless  the 
term  of  his  office  is  limited  by  the  order 
making  the  appointment.  IVeems  v.  La- 
throp,  42  Tex.  207. 

.')4.  DoihI,  and  liability  of  NiircticN. 
-An  action  is  not  maintainable  upon  a 
receiver's  bond  until  proceedings  for  an 
accounting  are  had  against  him,  or  in  case 
of  his  death  without  having  rendered  an 
account,  until  such  proceedings  arc  had 
against  his  personal  representatives  ;  at  least 
where  no  reason  appears  why  such  an  ac- 
counting could  not  be  had.  French  v, 
Dauchy,  134  N.  V.  543,  31  N.  E.  Rep.  1041, 
47  N.  y.  S.  R.  900;  aJjUrming  57  Hun  100, 
32  A'.  Y.  S.  R.  544,  10  N.  Y.  Supp.  468.— 
Criticising  Cuddeback  v.  Kent,  5  Paige 
(N.  Y.)  92  ;  Carow  v.  Mowatt,  2  Edw.  (N, 
Y.)  57.  E.XPLAINING  Ludgater  v.  Channell, 
15  Sim.  479. 

This  rule  is  not  qualified  by  the  fact  that 
the  bond  contains  no  provision  for  a  report 
or  accounting  by  the  receiver.  French  v. 
Dauchy.  134  A'.  Y.  543,  31  A'.  E.  Rep.  1041, 
47  N.  V.  S.  R.  900;  affirming  57  Hun 
100,  32  N.  Y.  S.  R.  544,  10  A^.  Y.  Supp. 
4O8. 


I 


im 


w 


1178 


RECEIVERS,  35-37. 


I; 


5, 


35.  Appeals  from  tlie  order.— Un- 
der N.  Y.  Act  of  1870,  cli.  408,  g  10,  the 
jurisdiction  of  the  general  term  of  the  su- 
preme court,  in  each  department,  is  confined 
to  orders  which  liave  been  entered  in  the 
department.  So  where  a  justice  in  one 
district  at  chambers  appoints  a  receiver  of 
railroad  property,  an  appeal  will  not  lie  from 
the  order  in  another  department,  unless  it 
appears  that  the  order  has  been  entered 
therein.  Clinch  v.  South  Side  R.  Co.,  2  Hun 
(.V.  K.)  154,4  T.&^C.  683. 

One  aggrieved  by  a  decree  appointing  a 
receiver  may  appeal  in  a  proper  case,  even 
if  tiie  receiver  cannot  question  the  decree 
of  the  court  appointing  him.  Melendy  v. 
Barbour,  25  Am,  &*  Ettg.  R,  Cas.  622,  78 
Va.  544. 

y.  SIOHTS.  POWEBS,  AND  DUTIES  OF 
BECEIVEBB. 

I.   Title  and  Possession — Contempt. 

36.  The  receiver's  title.— Before  the 
receiver  of  an  insolvent  railroad  corpora- 
tion which  has  surrendered  its  property 
for  the  benefit  of  creditors  can  be  held 
to  have  adopted  outstanding  leases,  reason- 
able time  is  required  to  ascertain  the  situa- 
tion, in  order  that  the  court  may  determine 
intelligently  the  proper  course  to  be  pursued. 
So  where  the  income  of  a  leased  line  is  not 
sufficient  to  pay  operating  expenses,  and  it 
is  not  profitable  as  a  feeder  to  the  main  line, 
the  receiver  of  the  system  does  not,  merely 
by  virtue  of  his  appointment,  become  the 
assignee  of  the  leased  line,  so  as  to  require 
him  to  take  general  earnings  to  pay  the 
rental  of  the  leased  road.  St.  Joseph  <&*  St. 
L.  R.  Co.  v.  Humphreys,  145  U.  S.  105.  12 
Sup.  Ct.  Rep.  795.— Following  Quincy,  M. 
&  P.  R.  Co.  V.  Humphreys,  145  U.  S.  82,  12 
Sup.  Ct.  Rep.  787. 

A  temporary  receiver,  appointed  at  the 
instance  of  the  attorney-general  in  an  action 
brought  upon  the  ground  that  a  railroad 
corporation  is  insolvent,  is  not  vested  with 
the  title  to  the  property  of  the  corporation, 
but  is  a  mere  custodian  and  manager  of  its 
property  and  franchise  under  the  direction 
of  the  court,  and,  r  being,  is  not  a  necessary 
party  to  a  suit  to  foreclose  a  mortgage  upon 
the  railroad.  Herring  v.  Ne^u  York,  L.  E. 
6-  IV.  R.  Co.,  35  Am.  &•  Eng.  R.  Cas.  54, 
105  A'.  Y.  340,  19  Abb.  N.  Cas.  340.  12  N.  E. 
Rep.  763,  7  A'.  Y.  S.  R.  547 ;  affirming  34 
Hun  634,  mem..  63  Haw.  Pr.  497. 


//  seems,  that  jurisdiction  to  appoint  a  re- 
ceiver of  a  corporation  upon  its  dissolution 
is  wliolly  statutory.  Such  a  receiver  is  the 
representative  of  the  corporate  body,  and  in 
New  York  he  is  vested  with  the  title  to  and 
is  made  trustee  of  the  corporate  property, 
and  for  the  purpose  ot  administering  thereon 
and  winding  up  tlie  ailairs  of  the  corpora- 
tion, he  succeeds  to  its  powers  and  franchises 
and  possesses  generally  all  the  powers  and 
authority  conferred  by  statute  upon  the 
assignees  of  insolvent  debtors.  Decker  v. 
Gardner,  48  Am.  &*  Efig.  R.  Cas.  683,  1 24 
.V.  Y.  334,  26  A^.  E.  Rep.  814.  36  A.  Y.  S. 
R.  267. 

Placing  the  property  of  a  corporation  in 
charge  of  a  receiver  does  not  work  its  dis- 
solution, nor  is  the  title  of  the  property 
changed  ;  a  power  only  is  delegated  to  take 
charge  of  it  and  sell  it.  State  {New  Jersey 
S,  R.  Co.  Pros.)  V.  Railroad  Cont'rs,  41  N. 
J.  L.  235. 

The  title  of  a  receiver  to  the  property  at- 
taches from  the  date  of  the  order  of  court 
appointing  him,  without  reference  to  the 
time  of  his  giving  bond.  Maynard  v.  Bond, 
67  Mo.  315. 

Since  no  reassignment  is  necessary  to  re- 
invest the  assignor  with  the  title  to  an  estate 
formerly  placed  in  the  custody  of  a  receiver 
by  order  of  a  court  of  competent  jurisdiction, 
it  follows  that  no  formal  conveyance  to  the 
receiver  is  required  in  the  first  place  from 
the  owner  or  corporation  whose  estate  is 
placed  by  judicial  order  in  his  custody.  No 
formal  assignment  to  the  receiver  from  the 
owner  is  requisite  to  enable  the  court  to 
pass  title  to  a  purchaser  through  a  sale 
made  by  the  receiver  acting  under  its 
orders.  Russell  v.  Texas  &•  P.  R.  Co.,  6% 
Tex.  646.  5  S.  IV.  Rep.  686. 

37.  Receiver's  possession,  gener- 
ally.*—Wherea  receiver,  under  New  Jersey 
Act  of  Feb.  12,  1874,  is  appointed,  in  behalf 
of  the  public,  to  operate  a  railroad,  the  road 
so  taken  should,  as  a  general  rule,  Se  re- 
turned to  the  company  who  was  in  posses- 
sion when  the  receiver  was  appointed.  The 
right  of  possession  cannot  be  settled  between 
two  railroad  companies,  each  claiming  such 
right,  in  a  proceeding  under  this  act,  I-ot^ 
Branch  &*  S.  S.  R.  Co.  v.  Sneden,  26  A'.  /. 
Ef.  539. 

*  Receiver's  right  of  possession  of  property  as 
affected  by  time  of  appointment  and  giving 
bond,  see  note,  20  L.  R.  A.  393. 


appoint  a  re- 
its  dissolution 
receiver  is  tiie 
:e  body,  and  in 
he  title  to  and 
rate  property, 
tering  tliereon 

the  cori)()r;i- 
and  franchises 
le  powers  and 
ute  upon  the 
rs.  Decker  v. 
Cas.  683,  124 
4.  36  A.  Y.  S. 

:orporation  in 
t  work  its  dis- 
the  property 
legated  to  take 
\te  {New  Jersey 

Com'rs,  41  N. 

le  property  at- 
order  of  court 
ference  to  the 
lynard  v.  Bond, 

Necessary  to  re- 
itie  to  an  estate 
ly  of  a  receiver 
:nt  jurisdiction, 
iveyance  to  the 
irst  place  from 
vhose  estate  is 
s  custody.  No 
:eiver  from  the 
e  the  court  to 
hrough  a  sale 
ing  under  its 
"  P.R.  Co.,  68 

sion,  greiicr- 

der  New  Jersey 
inted,  in  behalf 
ilroad,  the  road 
al  rule,  he  re- 
was  in  posses- 
Dpointed.  The 
settled  between 
1  claiming  such 
:his  act.  /-oft^ 
net/en,  26  N.  J. 


in  of  property  as 
lent  and    giving 


RECEIVERS,  38,  39. 


1179 


One  company  had  been  running  the  rail- 
road of  another  company  in  connection  with 
its  own  road,  when  both  roads  were  taken 
possession  of  by  a  receiver  appointed  under 
the  above  act.  The  second  company  filed  a 
petition,  asking  that  it  might  be  permitted  to 
run  its  own  road.  Held,  that  such  petition 
was  properly  denied,  it  appearing  that  the 
right  to  the  possession  of  this  road  was  in 
dispute  between  the  companies.  Lont; 
Branch  6-  S.  S.  A\  Co.  v.  Sneden.  26  N.  /. 
Eg.  539. 

Where  the  court  of  common  pleas,  hav- 
ing jurisdiction  in  an  action  against  a  rail- 
road corporation,  has  appointed  a  receiver 
who  is  in  possession'of  the  road,  its  property, 
and  assets,  and  is  proceeding  in  the  execu- 
tion of  the  trust  under  the  direction  and 
orders  of  the  court,  mandamus  will  not  be 
issued  against  such  corporation  and  receiver 
directing  their  conduct  in  operating  the 
road.  S/a/e  ex  rel.  v.  Marietta  (S-  C.  R.  Co., 
35  Ohio  St.  1 54. 

The  provisions  of  Pa.  Act  of  June  16, 1836, 
empov  cring  a  sequestrator  to  take  posses- 
sion and  assume  the  control  and  manage- 
ment of  the  property  of  a  corporation,  are 
restricted  by  the  act  of  April  22,  1858,  so  as 
not  to  apply  to  an  unfinished  railroad.  It  is 
the  design  of  the  latter  act  to  give  to  the 
sequestrator,  as  the  representative  of  credit- 
ors, the  earnings  of  the  completed  portion 
of  tlie  road,  but  to  preserve  the  corporate 
property  within  the  possession,  management, 
and  control  of  the  corporate  officers.  Mnncy 
Creek  R.  Co.  v.  Hill,  84  Pa.  St.  459. 

38.  Possession  of  receiver  is  tlie 
possession  of  tlie  law.— After  the  ap- 
pointment of  a  receiver  the  property  to 
which  the  receivership  relates  is  to  be 
deemed  in  the  custody  of  the  law.  Texas 
Triitik  R.  Co.  v.  Lewis,  81  Tex.  i,  16  5.  IV. 
Rep.  647.  Turner  v.  Cross,  83  Tex.  218,  18 
S.  W.  Rep.  578.  —  Followed  in  Texas  & 
P.  R.  Co.  71.  Bledsoe,  2  Tex.  Civ.  App.  88.— 
Russell  v.  Texas  &•  P.  R.  Co..  68  Tex.  646,  5 
.S'.  IV.  Rep.  686.  Pacific  R.  Co.  v.  Wade,  50 
Am.  &»  Eni^.  R.  Cas.  362.  91  Cal.  449,  27 
Pac.  Rep.  768.  Vermont  &^  C.  R.  Co.  v.  Ver- 
mont C.  R.  Co.,  46  Vt.  792. 

But  in  running  a  railroad  a  receiver  repre- 
sents the  company.  Bartlett  v.  A'eiui,  35 
Aw.  &^  Enjr.  R.  Cas.  1 5,  50  A^.  /.  L.  260,  1 1 
Cent.  Rep.  351.  i^Afl.  Rep.  7. 

The  possession  of  a  receiver  appointed  by 
a  state  court  is  the  possession  of  that  court, 
and  a  fcdcriil  court  will   not  disturb  that 


jiosscssion  by  granting  a  receiver.  Bruce  v- 
Manchester  &>  K.  R.  Co.,  igFed.  Rep.  342. 

39.  Obtain iii{r  possession.—  An  or- 
der appointing  a  receiver  directed  that  "  all 
the  books,  vouchers,  and  papers  touching 
the  operation  of  the  road  "  should  be  deliv- 
ered to  the  receiver.  Held,  that  the  order 
was  not  confined  to  such  books  as  the  re- 
ceiver might  specially  demand,  or  such  as 
related  to  the  future  business  of  the  com- 
pany, but  included  all  relating  to  the  past 
history  of  the  company.  American  Constr. 
Co.  V.  Jacksonville,  T.  &-  K.  IV.  R.  Co.,  52 
Fed.  Rep.  937. 

An  order  appointing  a  receiver,  and  di- 
recting the  delivery  to  him  of  "all  and 
every  part  of  the  properties,  interests,  effects, 
moneys,  receipts,  and  earnings  "  of  the  road, 
embraces  the  company's  seal.  American 
Constr.  Co.  v.  Jacksonville,  T.  &"  K.  IV.  R. 
Co.,  52  Fed.  Rep.  c^yj. 

The  receiver  had  a  rule  issued  to  show 
cause  why  possession  of  certain  rea.  estate 
should  not  be  surrendered  to  him.  Both 
the  parties  and  the  subject-matter  were 
within  the  jurisdiction  of  the  court.  The 
respondent  appeared  and  voluntarily  set 
forth  in  his  answer  his  claims  to  the  prem- 
ises, and  submitted  the  same  to  adjudica- 
tion. Held,  that  this  was  a  waiver  of  objec- 
tions to  the  form  of  the  proceeding.  Ex 
parte  Davidson,  57  Fed.  Rep.  883. 

A  receiver  claimed  possession  of  certain 
books  of  the  corporation  under  an  order  of 
court ;  but  it  appeared  that  the  property  of 
the  company  had  been  sold  under  a  fore- 
closure, and  that  the  books  had  been  de- 
livered to  the  purchaser,  and  had  passed 
into  the  possession  of  a  new  company  which 
claimed  them  under  the  purchase  as  owner. 
Held,  that  it  could  not  be  deprived  of  the 
possession  in  a  summary  manner,  and  that 
the  receiver  could  only  get  possession  by  a 
proper  suit  in  which  'he  new  company  was 
made  a  party.  Olmsted  v.  Rochester  &*  P^ 
R.  Co.,  46  Hun  552,  12  A'.  K.  5.  A'.  551. 

An  order  appointing  a  receiver  of  a  de- 
funct corporation,  with  power  to  receive 
into  his  possession  all  the  efTects  of  the  com- 
pany, and  also  investing  him  with  the  usual 
rights  and  powers  of  receivers,  involves  the 
correlative  duty  of  delivering  the  same  to 
him  by  the  late  officers  of  the  company  in 
whose  hands  the  funds  are,  although  not 
expressly  required  in  the  decretal  order. 
Vounj,'^  V.  Rollins,  25  Am.  &•  En^.  R.  Cas. 
646,90  N.  Car.  125. 


1180 


RECEIVERS,  40-42. 


40.  Conflicting  receiverships  in 
feueral  and  state  courts.*— A  court 
which  first  takes  jurisdiction  of  a  contro- 
versy and  of  the  parties  is  entitled  to  retain 
it  to  final  termination.  So  where  a  receiver 
is  appointed  in  a  state  court,  on  a  bill  filed 
after  proceedings  have  been  commenced  in 
a  federal  court,  possession  of  the  res  under 
such  appointment  is  wrongful,  and  must 
give  way  to  the  prior  jurisdiction  of  the  fed- 
eral court.  Gaylord  v.  Ft.  Wayne,  M.  &■> 
C.  K.  Co.,  6  litss.  {U.  S.)  286. 

Where  the  property  of  a  railroad  company 
is  in  possession  of  a  receiver  appointed  by 
a  federal  court,  another  corporation  cannot 
obtain  title  by  attempting  to  condemn  a 
right  of  way  over  it,  by  proceedings  in  a 
state  court  instituted  without  the  consent 
of  the  federal  court.  Western  Union  Tel. 
Co.  v.  Atlantic  &*  P.  Tel.  Co.,  7  Biss.  ( U.  S.) 

367- 

Where  a  federal  court  has  appointed  a  re- 
ceiver and  he  has  actually  taken  possession 
of  tiie  property,  the  jurisdiction  of  that 
court  is  complete,  and  possession  of  the 
property  will  not  be  yielded  to  a  receiver 
subsequently  appointed  in  a  state  court, 
though  the  proceeding  in  the  state  court 
was  instituted  first.  East  Tenn.,  V.  &^  G.  R. 
Co.  V.  Atlanta  6f  F.  R.  Co., 49  Fed.  Rep.  608. 

In  such  case  a  mere  order  of  the  state 
court,  prior  to  the  appointment  of  the  re- 
ceiver by  the  federal  court,  restraining  the 
officers  of  the  corporation  from  using  its 
funds,  except  for  strict  corporate  purposes, 
is  not  such  possession  of  the  property  as  to 
give  it  prior  jurisdiction.  East  Tenn.,  V.Sf* 
G.  R.  Co.  V.  Atlanta  &•  F.  R.  Co.,  49  Fed. 
Rep.  608. 

PlaintifT  company  filed  a  bill  alleging 
that  it  operated  and  controlled  several  lines 
of  railway,  and  that  it  was  unable  to  pay  in- 
terest on  its  bonds,  and  had  a  receiver  ap- 
pointed to  prevent  dismemberment  or  dis- 
astrous litigation.  Thereafter  a  receiver  of 
a  branch  road,  which  plaintiff  company  con- 
trolled as  part  of  its  system,  filed  a  petition 
asking  that  the  road  be  surrendered  to  liim, 
and  alleged  that  he  had  been  ap|)ointed 
by  a  state  court  after  the  other  receivers 
had  been  appointed.  It  appeared  that 
plaintiff  company  was  a  mere  creditor  of  the 
other  road,  and  held  a  majority  of  the 
stock  therein,    but    had  no  other   rights  (jf 

*  Receiver's  riRht  to  possession  of  property  as 
between  state  and  federal  courts,  see  note,  20  L. 
R.  A.  3g3. 


ownership.  Held,  that  it  had  no  right  to 
the  possession  of  the  road,  and  that  the 
prayer  of  the  petition  must  be  granted. 
Central  R.  &^  B.  Co.  v.  Farmers'  L.  &*  T. 
Co.,  56  Fed.  Rep.  357. 

An  order  of  a  state  court  appointing  a  re- 
ceiver of  a  railroad  directed  him  to  take 
possession  of  the  property,  but  when  he 
demanded  possession  it  was  refused  by  a 
receiver  who  had  been  appointed  in  a  fed- 
eral court,  and  the  receiver  of  the  state  court 
applied  to  his  court  for  a  writ  of  assistance 
to  obtain  possession.  It  appeared  that  the 
federal  receiver  had  been  appointed  in  two 
suits,  one  of  which  had  been  comn'.enced 
before  the  suit  in  the  state  court,  and  that 
the  other  wns  commenced  afterwards  upon 
a  mortgage  previously  executed,  and  that 
the  federal  receiver  was  appointed  before 
the  receiver  in  the  state  court.  Held,  that 
the  writ  of  assistance  should  not  issue, 
though  it  was  claimed  that  the  federal  court 
did  not  have  jurisdiction.  The  proper  rem- 
edy was  by  an  action  against  the  federal  re- 
ceiver, where  his  rights  could  be  adjudi- 
cated. Geipeke  v.  Milwaukee  &*  H.  R.  Co., 
II    W'm.  454. 

41.  Possession  of  property  out  of 
state  where  appointed.*— Where  a  re- 
ceiver has  once  obtained  rightful  possession 
of  personal  property  situated  within  the 
jurisdiction  of  his  appointment,  he  will  not 
be  deprived  of  its  possession  though  he 
takes  it,  in  the  performance  of  his  duty,  into 
a  foreign  jurisdiction.  While  there  it  can- 
not be  taken  from  his  possession  by  cred- 
itors of  the  insolvent  debtor  who  reside 
within  such  jurisdiction.  Chicago,  M.  &* 
St.  P.  R.  Co.  V.  Keokuk N.L.  Packet  Co.,  108 
///.  317. 

Where  a  receiver  has  been  appointed  by 
the  courts  of  another  state,  the  courts  of 
Pennsylvania,  on  the  ground  of  the  comity 
existing  between  the  states,  will  recognize 
his  appointment,  provided  his  claims  there- 
under do  not  come  into  conflict  with  the 
rights  of  citizens  of  Pennsylvania.  Bagby 
V.  Atlantic,  M.  <S-  O.  R.  Co.,  86  Pa.  St.  291. 

42.  Conflict  as  to  possession  be- 
tween receivers  and  attachment  or 
execution  creditors.!— Where  property 

*  Jurisdiction  of  receiver  as  to  property  out  of 
state  where  he  is  appointed,  see  note,  20  L.  R. 
A.  392 

t  Right  to  possession  of  property  as  between 
receivL-r  and  execution  or  attachment  creditor, 
see  note,  20  L.  R.  A.  392. 


Ino  riglit  to 

Id   that  the 

3e   granted. 

frs'  L.  6f*  T. 

inting  a  re- 

im   to  take 

t  when    lie 

le fused  by  a 

[ed  in  a  fed- 

|e  state  court 

f  assistance 

Ired  that  the 

linted  in  two 

commenced 

rt,  and  that 

wards  upon 

:d.  and  that 

inted   before 

Held,  that 

d  not   issue, 

federal  court 

;  proper  rem- 

le  federal  re- 

d   be  adjudi- 

&-  H.  li.  Co.. 

erty  out  of 

-Where  a  rc- 
ful  possession 
d  within  the 
It,  he  will  not 
n  though  he 
his  duty,  into 
there  it  can- 
ision  by  cred- 
r  who  reside 
icagOy  M.  6- 
acket  Co.,  1 08 

appointed  by 
:he  courts  of 
jf  the  comity 
nil  recognize 
claims  there- 
flict  with  the 
ania.  Bag  by 
1  Pa.  St.  291. 
ieHsioii  l)(>- 
clinieiit  or 
ere  property 

roperty  out  of 
note,  20  L.  R. 

rty  as  between 
ment  creditor. 


RECEIVERS,  43. 


1181 


is  In  the  hands  of  a  receiver,  a  sale  thereof 
under  an  execution  is  void.  JV/s7t>aU  v 
Sampson,  14  How.  (U.  S.)  52.  —  Disap- 
proved IN  Kinney  t/.  Crocker,  18  \Vi;.  74. 
Distinguished  in  Hills  v.  Parker,  m 
Mass.  508.  Followed  in  Robinson  v. 
Ohio  &  P.  R.  Co.,  2  Pittsb  (Pa.)  257. 

Where  the  property  of  a  railroad  is  in  the 
hands  of  a  receiver,  all  litigation  for  its  pos- 
session must  be  in  the  court  appointing  the 
receiver,  without  regard  to  citizenship.  So 
a  purchaser  or  bidder  at  a  sale  of  the  prop- 
erty subjects  himself  to  the  jurisdiction  of 
the  court  without  reference  to  where  he 
may  reside.  Minnesota  Co.  v.  St.  Paul  Co., 
2  Wall.  {U.S.)  609.— Explained  in  United 
States  Trust  Co.  v.  Wabash.  St.  L.  &  P. 
R.  Co.,  42  Fed.  Rep.  343.  Reviewed  in 
Hoyle  V.  Plattsburgh  &  M.  R.  Co..  54  N. 
Y.  314. 

By  virtue  of  his  appointment,  and  an 
order  directing  a  receiver  to  take  possession 
of  all  goods  and  chattels  of  a  railroad  com- 
pany, he  is  not  entitled  to  possession  of 
lumber  and  wood  which  had  formerly  been 
owned  by  the  company,  but  which  had  been 
sold  on  execution  before  the  appointment 
of  the  receiver.  McUrath  v.  Snnre,  22 
Minn.  391. 

Mortgage  trustees  instituted  a  suit  in 
Kentucky  to  foreclose  a  mortgage  on  a  road 
and  to  have  a  receiver  appointed.  Pending 
the  suit  certain  rolling  stock,  which  was 
covered  by  the  mortgage,  was  temporarily 
in  Ohio,  and  while  there  was  taken  in  at- 
tachment by  an  unsecured  Kentucky  cred- 
itor. The  whole  property  of  the  road  was 
insufficient  to  pay  the  mortgage  debt.  Held, 
that  upon  principles  of  interstate  comity 
the  receiver  would  be  allowed  to  institute 
suit  in  Ohio  to  recover  possession  of  rhe 
property.  Merchants'  Nat.  Bank  v.  McLeod, 
38  Ohio  St.  174. 

A  company  owning  land  and  having 
power  to  mortgage  it  gave  a  mortgage  of 
all  its  estate  and  property,  real  and  personal. 
Held,  that  the  mortgage  covered  the  land, 
whether  it  was  necessary  to  the  enjoyment 
of  its  franchises  or  not.  A  receiver  of  all 
the  mortgaged  property  having  been  ap- 
pointed, the  land  was  in  legal  custody  and 
could  not  be  levied  on.  Whether  the  land 
should  pass  into  the  hands  of  a  receiver 
could  be  determined  only  by  the  court  that 
appointed  him.  Robinson  v.  Atlantic  &*  G. 
W.  P.  Co.,  66  Pa.  St.  160. 

Where  a  receiver  of  a  corporation  has 


liccn  -ippointed  by  a  court  of  competent 
juns(ii(  tioii  in  another  state,  a  creditor  who 
resides  111  tliat  state  and  is  bound  by  the 
decree  of  its  court  appointing  said  receiver, 
cannot,  in  an  attachment  execution,  re- 
cover assets  of  the  corporation  in  Pennsyl- 
vania, which  the  receiver  claims.  Bagby  v. 
Athintic,  M.  <S-  O.  R.  Co.,  86  Pa.  St.  291. 

l^roperty  in  the  hands  of  a  receiver  ap- 
pointed t)y  a  court  of  chancery  is  not  liabk- 
to  seizure  and  sale  under  execution  on  a 
judgment  at  law.  Robinson  v.  Ohio  &*  P. 
R.  Co.,  2  Pittsb.  (Pa.)  257, — Following 
Wiswall  V.  Sampson,  14  How.  (U.  S.)  52. 

A  decree  of  the  supreme  court  of  the 
state  allowed  plaintiff  to  redeem  certain 
property  from  certain  conveyances  to  de- 
fendant on  the  payment  of  a  certain  sum 
within  ninety  days  therefrom.  The  circuit 
court,  to  which  the  mandate  was  sent,  on 
tlie  application  and  consent  of  the  parties, 
made  an  order  enlarging  the  time  for  re- 
demption to  three  years,  and  placing  the 
property  in  the  hands  of  two  persons  dur- 
ing that  time.  Held,  that  these  persons 
were  not  receivers,  but  only  agents  of  the 
parties,  and  that  their  appointment  would 
not  prevent  this  court  from  directing  the 
sale  of  a  certain  portion  of  said  property  on 
which  plaintiff  has  a  lien  in  virtue  of  a  de- 
cree. Hickox  V.  Holladay,  12  Sawy.  {U.  5.) 
204. 

A  sale  of  property  in  the  hands  of  a  re- 
ceiver, made  under  execution  issuing  from 
another  court,  or  in  a  different  casfe.  unless 
authorized  by  the  order  of  the  court  ap- 
pointing the  receiver,  is  a  nullity,  and  no 
title  passes.  Russell  v.  Texas  &•  P.  R,  Co., 
68  Tex.  646,  5  S.  IV.  Rep.  686. 

43.  between  receivers  and  as- 
signees in  bankruptcj'.*— Where  fore- 
closure proceedings  are  instituted  against  a 
corporation  in  a  federal  court,  a  receiver 
appointed  who  has  possession  before  bank- 
ruptcy proceedings  are  commenced  in  a 
federal  court  cannot  be  dispossessed  by  the 
federal  court.  Davis  v.  Alabama  6>»  F.  R. 
Co.,  I   Woods  (U.  S.)  661. 

Where  the  proceeding  in  a  state  court  is 
to  enforce  a  specific  and  vested  lien,  such 
posses.'iion  is  lawful,  and  can  only  be  avoided 
by  the  payment  of  the  mortgage  debt  by 
the  assignee  in  bankruptcy.  Davis  v.  Ala- 
bama &*  F.  R.  Co.,  I   Woods  ( U.  S.)  661. 

*  Exclusive  jurisdiction  of  court  appointini; 
receiver  as  Hgainst  assignee  in  bankruptcy,  see 
note,  20  L.  R.  A.  301. 


I 


u^ 


1182 


RECEIVERS.  44,45. 


liit 


'•M 


';lS 


And  where  the  property  has  been  taken 
from  the  receiver  and  sold  by  the  assignee 
in  banKruptcy,  and  due  notice  of  the  ille- 
gaUty  ot  the  sale  is  given  at  the  time,  it  will 
be  set  aside,  and  the  purchase  money  re- 
turned. Davis  V.  .llabama  &>»  F.  A'.  Co..  i 
JVooiis  {U.  a  )66i. 

Where  receivers,  appointed  by  state 
courts,  take  possession  of  a  railway,  the 
property  must  be  regarded  as  in  the  posses- 
sion ot  the  courts,  and  such  possession  will 
not  be  interfered  with,  unless  the  title  of 
the  receivers  can  be  impeached  under  the 
bankrupt  act.  Alden  v.  Boston,  H.  <S^  E.  /?. 
Co.,  I  Fed.  Cas.  328,  5  Bankr.  Reg.  230. 

44.  between  receiver  niiil  lien 

for  taxes.  — Railroad  property  which  is  in 
the  hands  of  a  receiver  appointed  by  a  led- 
eral  court  is  not  subject  to  seizure  under  a 
l)rocess  issued  from  a  state  court  to  enforce 

1  ne  collection  of  taxes.  In  re  Tyler,  149  U. 
S.  164,  13  Sup.  Ct.  Rep.  785. 

f  n  such  case  the  remedy  of  the  tax  col- 
lector IS  to  apply  to  the  court  which  ap- 
pointed the  receiver,  wliere  the  validity  of 
the  tax.  and  the  question  of  the  priority  of 
payment  of  the  taxes  under  the  state  laws, 
may  be  determined.  In  re  Tyler,  149  U.  S. 
164,  13  Sup.  Ct.  Rep.  785. 

Railroad  property  in  the  hands  of  a  re- 
ceiver may  be  seized  and  sold  for  state 
taxes,  when  there  is  nothing  to  show  that 
the  taxes  are  not  just  and  legal,  or  that  they 
are  not  due.  The  mere  fact  that  the  re- 
ceivers have  no  money  on  hand  to  pay  the 
taxes  is  no  excuse  (or  stopping  the  process 
of  the  state  lor  their  collection.  Central 
Trust  Co.  V.  Wabash,  St.  L.  <S->  P.  R.  Co.,  26 
Fed.  Rep.  11, 

An  order  appointing  a  receiver  which 
confers  upon  him  all  the  powers  and  author- 
ity of  a  permanent  receiver  vests  him  with 
all  the  estate,  real  and  personal,  of  the  cor- 
poration, and  he  becomes  a  trustee  of  such 
estate  for  the  benefit  of  the  corporation 
creditors  and  stockholders.  He  is,  there- 
fore, both  the  owner  and  the  occupant  of 
the  real  estate  of  a  railroad,  and  the  assess- 
ment of  a  tax  thereon  against  the  company, 
and  not  against  the  receiver,  cannot  be  col- 
lected.   In  re  Mallory,  18  A',  Y.  S.  R.  499, 

2  N.  Y.  Supp.  437. 

45.  Interference  with  possession 
of  receivers.  —  ( i )  Federal  decisions.  — 
When  a  receiver  is  in  possession  of  property 
pending  a  suit  involving  the  right  to  its  pos- 
session merely,  as  in  a  suit  to  redeem  from  a 


mortgage,  the  court  is  of  opinion  that  a 
mere  sale  of  such  property  on  the  process 
of  another  court  is  not  an  interference  with 
such  possession.  Hickox  v.  Holiaday,  12 
Sawy.  (U.  S.)  204. 

A  railroad  company  petitioned  for  leave 
to  cross  the  tracks  of  another  company  near 
a  station  which  was  in  the  hands  of  a  re- 
ceiver appointed  by  a  federal  court.  Held, 
that  it  was  not  the  policy  of  the  court  to 
place  obstacles  in  the  way  ol  public  im- 
provements, and  the  leave  would  be  granted 
upon  the  petitioning  company  giving  bond 
to  secure  any  damages  that  might  be  caused 
to  the  other  company  by  such  crossing. 
Central  Trust  Co.  v.  IVaias/t,  St.  L.  &'  P. 
R.  Co.,  26  Fed.  Rep.  3. 

After  a  street-railway  company  operated 
by  horse  power,  but  which  had  the  privilege 
of  using  electricity,  had  gone  into  the  hands 
of  a  receiver,  the  city  authorities  granted  an 
electric  railway  company  the  right  to  lay  its 
tracks  on  a  street  partly  within  the  rails  of 
the  existing  company  for  a  distance  o(  five 
blocks  in  the  business  portion  of  the  city. 
Held,  that  this  would  materially  impair  the 
enjoyment  of  the  property,  and  would 
be  enjoined  on  application  by  the  receiver. 
Fidelity  T.  <S-  5.  V.  Co.  v.  Mobile  St.  R.  Co., 
S3  Fed.  Rep.  687, 

But  where  it  appears  that  the  receiver  does 
not  desire  to  use  electricity  as  a  motive 
power  on  his  road,  the  court  will  not  con- 
sider how  its  use,  for  the  distance  above 
stated,  would  affect  purchasers  of  the  road 
at  a  foreclosure  sale,  if  they  should  decide 
to  use  electricity.  The  relative  rights  of 
such  persons  and  the  new  company  can  be 
settled  when  they  arise.  Fidelity  T.  &>  S. 
V.  Co.  v.  Mobile  St.  R.  Co.,  53  Fed.  Rep. 
687. 

(2)  State  decisions. — A  conveyance  by  a 
railroad  company  of  a  portion  of  its  prop- 
erty to  parties  with  whom  it  had  contracted 
to  convey  such  portion  upon  the  breach  of 
a  condition  cannot  disturb  the  possession  of 
a  receiver  appointed  by  the  court,  in  an 
action  against  the  company  for  the  fore- 
closure of  a  mortgage,  or  embarrass  him  in 
the  discharge  of  his  duties.  Klauber  v.  San 
Diego  Street-Car  Co.,  95  Cal.  353,  30  Pac. 
Rep.  555. 

On  the  appointment  of  a  receiver  for  a 
railroad  company,  the  court,  by  injunction, 
prohibited  the  company  from  interfering 
with  the  property,  or  disturbing  the  posses- 
sion of  the  receiver;  but  riiis  would   not 


RECEIVERS,  40,47. 


118:} 


lion  that  a 
the  process 
erence  with 
^olladay,    1 2 

;d  for  leave 

nipai)y  near 

ids  of  a  re- 

urt.     Heia, 

he  court  to 

public  im- 

be  granted 

iving  bond 

It  be  caused 

h   crossing. 

St.  L.  (S-  P. 

ly  operated 
he  privilege 
o  the  hands 
i  granted  an 
ht  to  hiy  its 
the  rails  of 
ance  of  five 
of  the  city. 
impair  the 
and  would 
he  receiver. 
e  St.  R.  Co., 

jceiver  does 
3  a  motive 
ill  not  con- 
ance  above 
)f  the  road 
ould  decide 
i  rights  of 
)any  can  be 
'ty  T.  &>  S. 
Fed.   kep. 

^ance  by  a 
)f  its  prop- 
contracted 
;  breach  of 
ssession  of 
)urt,  in  an 
the  fore- 
rass  him  in 
uber  V.  San 
;3,  30  Pac. 

eiver  for  a 
injunction, 
interfering 
the  posses- 
H-ould   not 


operate  to  prevent  the  company  building  a 
fence  along  its  right  of  way.  as  required  by 
the  statute,  and  so  would  afford  no  defense 
to  an  action  by  an  adjacent  landowner  to 
recover  twice  the  value  of  a  fence  winch  he 
Had  built  alter  due  notice  to  the  company. 
O/tt'o  G^  M.  R.  Co.  V.  Russell,  23  Am.  &> 
Enir.  R.  Cas.  149,  115  ///.  52,  3  N.  E.  Rep. 
561". 

Where  by  a  judgment  of  a  circuit  court 
of  the  United  States  the  assets  of  a  corpora- 
tion have  been  taken  possession  of,  and 
placed  in  the  hands  of  a  receiver,  no  writ  of 
attachment  or  any  other  process  can  legally 
issue  from  any  other  court  to  disturb  the 
receiver's  possession  of  such  assets,  or 
take  effect  on  any  right  or  debt  that  may 
have  accrued  in  favor  of  the  corporation 
after  the  receiver  had  qualified  and  taken 
charge.  Gest  v.  New  Orleans,  St.  L.  6-*  C. 
R.  Co.,  30  La.  Ann.  28. 

The  petitioner  was  the  receiver  and  man- 
ager of  two  railroads,  under  appointment 
of  the  court  of  Vermont.  In  the  course  of 
business  large  amounts  due  the  petitioner 
from  the  earnings  of  these  roads  accumu- 
lated in  the  hands  of  corporations  and 
parties  in  other  states.  One  company 
brought  suit  in  Massachusetts  jigainst  the 
trustees  of  the  other  company  under  a  cer- 
tain mortgage,  and  summoned  also  as  trus- 
tees of  defendants  the  corporations  and 
parties  holding  said  sums  of  money,  for 
the  purpose  of  locking  up  said  funds  in  the 
hands  of  the  trustees,  who  were  in  doubt 
whether  they  could  safely  pay  the  balances 
to  the  petitioner.  The  petitioner  prayed 
for  an  order  enjoining  the  company  from 
prosecuting  said  suit,  and  to  release  its 
attachment  of  the  funds.  Held:  (i)  That 
the  proper  record  evidence  of  appointment 
as  receiver  is  conclusive  evidence  of  the 
riglit  of  the  party  to  act  as  such  until  it  is 
impeached.  It  is  immaterial  whether  the 
order  of  appointment  was  erroneous  or  im- 
proper; while  it  is  a  subsisting  order,  the 
receiver  will  be  sustained  in  his  possession 
of  the  property.  (2)  The  proceedings  by 
petition  are  formal  and  valid,  as  the  aid 
must  be  summary  and  speedy  to  be  benefi- 
cial. The  remedy  at  law  is  not  adequate. 
(3)  The  court  has  the  right  to  restrain 
parties  within  its  jurisdiction  from  prose- 
cuting suits  in  foreign  courts  grounded 
upon  the  fact  that  the  party  upon  whom 
the  order  is  made  is  within  the  jurisdiction 
of  the  court.     (4)  A  receiver  is  Indifferent 


to  both  parties  in  the  suit.  He  is  the  officer 
and  servant  of  the  court,  and  entitled  to  its 
protection  while  in  the  proper  discharge  of 
Ins  duty  Persons  interfering  with  him 
are  guilty  of  contempt  of  court.  The  prayer 
for  relief  was  granted.  Vermont  &*  C.  R. 
Co.  V.  Vermont  C.  R.  Co.,  46  Vt.  792.— 
Following  Bank  of  Bellows  Falls  v.  Rut- 
land &  B.   R.  Co..  28  Vt.  470. 

4<l.  coiiteiiipt.*— A  court  appoint- 
ing a  receiver  may  draw  to  itself  all  con- 
troversies to  which  the  receiver  is  a  party, 
or  which  affect  the  property  under  his 
control,  yet  it  does  so  only  by  direct  ac- 
tion upon  parties  by  way  of  injunction,  or 
proceedings  as  for  contempt ;  and  the  ap- 
pointment in  no  manner  affects  the  or- 
dinary jurisdiction  of  other  tribunals.  St. 
Joseph  Sf  D.  C.  R.  Co.  v.  Smith,  19  Kan. 
225. 

A  strike  occurred  on  a  railroad  while  it 
was  in  the  hands  of  a  receiver  appointed  by 
a  federal  court.  During  the  strike  a  person 
who  claimed  to  be  chairman  of  a  local 
committee  sent  a  communication  to  various 
employes,  requesting  them  to  stay  away  from 
the  shops  until  the  difficulty  was  settled, 
and  stating  that  compliance  would  com- 
mand the  protection  of  the  employes,  but 
that  it  was  not  to  be  considered  as  an  in- 
timidation. Held,  that  this  was  an  unlaw- 
ful interference  with  the  management  of 
the  road  by  the  receiver,  and,  therefore,  a 
contempt  of  court.  In  re  Wabash  R.  Co., 
24  Fed,  Rep.  217. 

2.  Rv^his  and  Powers. 

47.  In  general.t— The  placing^  of  rail- 
road property  in  the  hands  of  receivers  does 
not  transfer  to  them  such  matters  as  oer- 
tain  to  the  corporate  existence,  such  as  the 
annual  meetings  and  the  election  of  direc 
tors.  Farmers'  &■»  M.  Nat.  Rank  v.  Phila- 
delphia &*  R.  R.  Co.,  14  PAila.  (Pa.)  456. 

A  receiver  appointed  under  Tenn.  Code, 
§  iioi,  is  vested  with  the  powers  and  duties 
of  the  board  of  directors  in  managing  the 
affairs  of  the  company,  and  is  a  public 
agent  of  the  state.  Erwin  v.  Davenport,  9 
Heisk.  {Tenn.)  44,  19  Am.  Ry.  Rep.  274. 

♦  Interference  with  receivers  as  contempt  of 
court,  see  note,  45  Am.  &  Eng.  R.  Cas.  104. 

t  Nature  of  receiver's  power,  see  note,  4  Am. 
&  Eng.  R.  Cas.  82. 

Receivers,  various  powers  and  liabilities  of, 
see  43  Am.  &  Eng.  R.  Cas.  33,  abstr. 


1184 


RECEIVERS,  48,  49. 


The  rights  of  a  true  owner  of  property 
cannot  be  prejudiced  by  any  act  or  admis- 
sion of  a  receiver  wliohad  it  temporarily  in 
charge.  Rio  Grande  &•  E.  P.  R.  Co,  v. 
Milmo,  79  Tex.  628.  15  5.   W.  Rep.  475. 

48.  Territorial  powers.*— The  pow- 
ers of  a  receiver  are  co-extensive  only  with 
the  jurisdiction  of  the  court  appointing 
him,  and  a  foreign  receiver  will  not  be  per- 
mitted, as  against  the  claims  of  creditors 
resident  in  the  state,  to  remove  from  the 
state  the  assets  of  the  debtor,  it  being  tlie 
policy  of  every  government  to  retain  in  its 
own  hands  the  property  of  the  debtor  until 
all  domestic  claims  against  it  have  been 
satisfied.  Chifago,  M.  <&*  St.  P.  R.  Co.  v. 
Keokuk  N.  L.  Packet  Co.,  108///.  317. 

Receivers  or  trustees  of  the  effects  of  an 
insolvent  corporation  of  another  state,  ap- 
pointed under  the  laws  of  such  state,  with 
power  to  take  possession  of  all  the  effects 
of  such  corporation,  "and  to  sell,  convey, 
or  assign  its  real  and  personal  estate,"  have 
power  to  sell  and  assign  a  'ebt  due  to  the 
corporation  from  a  citizen  of  this  state, 
and  such  sale  and  assignment  give  to  the 
purchaser  the  equitable  right  of  action  as 
against  the  debtor  in  the  courts  of  this 
state.  Hoyt  v.  Thompson,  5  N.  Y.  320 ;  re- 
versing  3  Sandf.  416.— Reviewing  Willink 
V.  Morris  C.  &  B.  Co.,  4  N.  J.  Eq.  400. 

49.  Powers  in  operating  the  road. 
— (i)  Federal  decisions. — A  court  of  equity 
may,  in  its  discretion,  in  view  both  of  the 
public  and  private  interests  involved,  au- 
thorize Its  receiver  to  keep  a  railroad  in 
repair,  and  to  manage  and  use  it  in  the 
ordinary  way,  until  it  can  be  sold  to  the 
best  advantage  of  all  interested  therein. 
Barton  v.  Barbour,  4  Am.  &*  Eng-  R-  Cas. 
I,  104  U.  S.  126.— Followed  in  Vander- 
bilt  7/.  Central  R.  Co.,  43  N.  J.  Eq.  669. 

In  the  matter  of  charges  a  receiver  will 
be  justified,  until  further  order,  in  following 
a  state  statute,  in  all  instances  where  the 
rates  fixed  by  it  are  reiisonable  and  fairly 
compensatory.  In  re  McElrath,  2  Dill. 
( U.  S.)  460. 

But  if  the  receiver  is  of  opinion  that  the 
rates  fixed  by  the  .tatute  are  unjust,  and 
that  they  are  unreaFonably  low  and  will  not 
compensate  for  the  services  required,  he  is 
at  liberty  to  act  in  such  cases,  for  the  time 
being,  under  the   direction  and  advice  of 

*  Territorial  powers  and  jurisdiction  of  re- 
ceivers, see  note,  8  Am.  St.  Rep.  49. 


the  mortgage  trustees.    In  re  McElrath,  2 
Dill.  (U.  5.)  460. 

Where  the  matters  pertaining  to  a  fore- 
closure suit  and  the  appointment  of  a  re- 
ceiver are  pending  in  the  supreme  court  of 
the  United  States  on  appeal,  and  an  early 
decision  is  expected,  which  will  determine 
the  rights  of  the  litigating  parties,  and  will 
terminate  many  other  undecided  questions, 
the  trial  court  will  refuse  any  order  author- 
izing the  receiver  to  expend  the  trust  funds, 
in  such  matters  as  acquiring  the  rii;ht  to 
use  a  new  junction  road  through  a  city,  or 
to  purchase  a  bridge  across  a  bay.  Cowdrey 
V.  Galveston,  H.  &^  H.   R.  Co.,  i  Woods  {U. 

S.)  33'- 

(2)  State  decisions. — Where  it  is  alleged 
and  admitted  that  the  receiver  of  a  railroad 
company  managed  and  controlled  the  busi- 
ness of  the  company  and  operated  the  rail- 
way, a  contract  relative  to  the  carriage  of 
goods  will  not  be  held  to  be  in  violation  of 
his  authority  until  the  authority  conferred 
upon  him  by  the  court  is  shown.  Baylcs  v. 
Kansas  Pac.  R.  Co.,  40  Am.  &*  Eng.  R.  Cas. 
42,  13  Colo.  181,  22  Pac.  Rep.  341,  5  L.  R.  A. 
480,  2  Int.  Com.  Rep.  643. 

An  express  company  contracted  with  a 
railroad  for  the  carrying  of  express  matter 
over  its  road  and  the  lines  leased  by  it,  the 
amounts  due  to  the  railroad  for  freight  to 
be  applied  in  repayment  of  money  to  be 
advanced  by  the  express  company.  The 
railroad  became  insolvent,  and  receivers, 
having  continued  to  carry  the  express  mat- 
ter, filed  a  motion  that  the  express  com- 
pany pay  in  cash.  Neld,  that  the  fact  that 
the  officers  of  the  leased  corporations  in- 
duced the  express  company  to  enter  into 
the  contract  and  make  the  advance,  by 
representations  that  they  might  safely  do 
so,  was  no  answer  to  the  motion,  it  not 
appearing  that  the  money  paid  by  the  ex- 
press company  was  apportioned  among  the 
corporations,  and  the  other  corporations 
not  being  parties  to  the  proceedings.  Ellis 
v.  Boston,  //.  <S-  E.  R.  Co.,  107  A/ass.  i. 

The  proceedings  of  a  receiver  appointed 
under  the  N.  J.  Act  of  1874,  "  for  the  relief 
of  citizens  of  any  railroad  that  has  or  may 
hereafter  fail  or  neglect  to  operate,"  will 
not  be  stayed  to  allow  an  inquiry  into  the 
causes  of  the  failure  of  the  company  to  op- 
erate. /«  re  Long  Branch  &•  S.  S.  R,  Co., 
24  N.  J.  Eq.  398. 

A  company  having  the  contract  right  to 
run  over   defendant's  track    by  paying  a 


In  re  McElrath,  z 

pertaining  to  a  (ore- 
appointment  of  a  re- 

tlie  supreme  court  of 

apjieal.  anil  an  early 
vhich  will  determine 
iting  parties,  and  will 

iindeciflefi  questions, 
Jse  any  order  autlior- 
cpend  the  trust  funds, 
squiring  the  ritjht  to 
ad  through  a  city,  or 
:ross  a  bay,    Cowdrey 

A'.  Co.,  I  Woods  {U. 

Where  it  is  alleged 
receiver  of  a  railroad 
I  controlled  the  busi- 
id  operated  the  rail- 
e  to  the  carriage  of 
to  be  in  violation  of 
authority  conferred 
is  shown.  Baylcs  v. 
Am.  <S-  Eng.  A\  Cas. 
^^ep.  341,  S  -^.  K.  A. 

contracted  with  a 
k  of  express  matter 
lues  leased  by  it,  the 
liiroad  for  freight  to 
:nt  of  money  to  be 
ess  company.     The 
'ent,   and  receivers, 
rry  the  express  mat- 
it  the  express  com- 
l  that  the  fact  that 
2d  corporations   in- 
pany  to  enter  into 
e  the  advance,   by 
ey  might  safely  do 
;he  motion,   it   not 
ley  paid  by  the  ex- 
jrtioned  among  the 
other  corporations 
proceedings.     Ellis 
'..  107  Mass.  I. 
receiver  appointed 
74.  "  for  the  relief 
Jd  that  has  or  may 
to  operate,"  will 
>n  inquiry  into  the 
le  company  to  op- 
^t  <S-  ^.  S.  R.  Co., 

e  contract  right  to 
ack    by  paying  a 


RECEIVERS,  50,51. 


1185 


monthly  consideration  being  three  months 
in  arrears,  a  receiver  of  defendant  road  sev- 
ered the  connection  between  the  two  roads. 
Held,  on  a  petition  for  damages,  and  to 
have  the  connection  restored,  that  the  peti- 
tioners were  not  entitled  to  relief  on  the 
ground  of  oppressive  and  unwarranted  con- 
duct on  the  part  of  the  receiver.  Elmira  I. 
*-  S.  Rolling  Mill  Co.  v.  Erie  R.  Co.,  26  N. 
J.  Eg.  284.— Referred  to  in  Re  New 
Jersey  &  N.  Y,  R.  Co.,  29  N.  J.  Eq.  67. 

50.  Powurto  make  contracts,  gen- 
erally.*— A  receiver  has  no  power,  unless 
authorized  by  the  court  appointing  him,  to 
contract  for  municipal  aid  in  order  to  com- 
plete the  railroad.  Smith  v.  McCulloi4gh,  3 
Am.  &»  Eng.  R.  Cas.  159.  104  17.  5,  25. 

A  party  who  enters  into  a  contract  with  a 
receiver  is  bound  to  take  notice  of  his  disa- 
bility to  contract,  and  makes  a  contract 
with  him  at  his  peril,  Tripp  v.  Boardman, 
49  Iowa  410.  Lehigh  C.  &*  N.  Co.  v.  Central 
R.  Co.,  9  Am.  &«•  Eng.  R.  Cas.  479,  35  N.  /. 
Eq.  426. — Quoting  Cowdrey  v.  Galveston, 
H.  &  H.  R.  Co.,  I  Woods  (U.  S.)  336. 

All  contracts  made  by  a  receiver  are  sub- 
ject to  the  control  of  the  chancellor,  and  he 
may  modify  them,  or  disregard  them  en- 
tirely, as  to  him  may  seem  best.  Lehigh  C. 
&*  N.  Co.s.  Central R.  Co.,  9  Am.  &>  Eng. 
R.  Cas.  479.  35  A'.  /.  Eg.  426. 

Contracts  made  by  a  receiver  are,  in  some 
respects,  sui  generis.  They  bind  the  re- 
ceiver, not  personally,  but  as  the  represent- 
ative of  the  trust,  and  are  to  be  enforced, 
or  redress  for  their  breach  is  to  be  accorded 
out  of  the  fund.  But  he  who  contracts 
with  the  receiver  does  so  with  the  knowl- 
edge that,  for  any  mjury  received  thereby, 
he  can  only  get  redress  by  obtaining  the 
permission  of  the  court  whose  officer  the 
receiver  is,  to  sue  at  law,  or  to  proceed 
against  him  in  the  court  of  chancery,  and 
in  either  case  by  satisfying  that  court  that 
the  claim  is  well  founded.  Vanderbilt  v. 
Central  R.  Co.,  35  Am.  6-  Eng.  R.  Cas.  18, 
43  A^.  /.  Eq.  669,  10  Cent.  Rep.  849,  12  At  I. 
Rep.  188;  affirming  41  A'./.  Eq.  167,  3  Atl. 
Rep.  134. 

Upon  an  application  for  redress  upon 
such  contracts,  the  determination  of  the 
court  is  to  proceed  on  equitable  principles 
adapted  to  the  administration  of  an  insol- 
vent estate  of  this  character.     If,  on  exam- 

•  Powers  and  duties  of  receivers.  Necessary 
contracts,  see  note,  13  Am.  &  Eng.  R.  Cas.  451. 

6  D.  R.  D.— 75 


mation,  the  contract  appears  to  be  improvi- 
dent or  detrimental  to  the  trust,  it  should 
not  be  enforced,  nor  should  damages  for  its 
non-performance  be  awarded.  But  if  the 
contractor  made  the  contract  in  ignorance 
of  its  improvidence,  and  has  in  good  faith 
prepared  to  perform  it,  and  if,  by  its  non- 
performance, he  suffers  actual  loss  without 
his  fault,  then  the  fund,  the  representative 
of  which  has  misled  him,  ought  to  reimburse 
his  actual  loss.  Vanderbilt  v.  Central  R. 
Co.,  35  Am.  <S-  Eng.  R.  Cas.  18.  43  N.J.  Eq. 
669,  to  Cent.  Rep.  849,  12  Atl.  Rep.  188; 
affirming  41  N.J.  Eq.  167,  3  Atl.  Rep,  134. 

51.  Contracts  of  piircliase.*— Re- 
ceivers of  a  road  will  not  be  authorized  to 
Uorrow  money  upon  rolling  stock  manu- 
factured at  the  company's  shops  and  else- 
where for  the  receivers,  or  to  create  what  is 
known  as  a  car  trust,  when  the  net  earnings 
of  the  road  are  sufficient  to  purchase  neces- 
sary rolling  stock,  where  the  only  reason 
assigned  for  doing  so  is  to  allow  the  net 
earnings  of  the  road  to  be  paid  on  overdue 
interest  on  bonds.  Taylor  v.  Philadelphia 
<S-  R.  R.  Co.,  3  Am.  &>  Eng.  R.  Cas.  177,  9 
Fed.  Rep.  i,  14  Phila.  (Pa.)  501. 

Such  authority  will  not  be  granted  when 
the  court  deems  the  creation  of  such  a  loan 
inexpedient.  Taylor  v.  Philadelphia  <S-»  R. 
R.  Co.,  3  Am.  Sr'Eng.  R.  Cas.  177.  9  Fed. 
Rep.  I,  14  Phila.  (Pa.)  501. 

A  receiver  of  an  insolvent  railroad  corpo- 
ration has  authority  to  make  such  contracts 
for  labor  and  supplies  as  are  reasonably 
necessary  to  enable  him  to  perform  the 
duties  of  his  appoint.nent,  and  equity  will 
enforce  such  contracts  against  the  trust. 
Lehtgh  C.  6-  A^.  Co.  v.  Central  R.  Co.,  41  N. 
J.  Eq.  167,  3  Atl.  Rep.  134;  affirmed  in  43 
A^.  /.  Eq.  669,  12  Atl.  Rep.  188. 

When  contracts  for  the  purchase  of  goods, 
etc.,  have  been  orally  made  by  a  receiver, 
deliveries  to  his  agents  empowered  to  ex- 
amine and  certify  whether  such  goods 
should  be  accepted,  and  the  receipt  and 
acceptance  thereof  upon  such  examination 
and  certificate  and  payment  therefor,  will 
satisfy  the  provision  of  section  6  of  the 
statute  of  frauds,  and  the  contract  will  bind 
the  fund  if  otherwise  enforceable.  Vander- 
bilt \.  Central  R.  Co.,  35  Am.  <S-  Eng.  R. 
Cas.  18,  43  A^.  /.  Eq.  669,  10  Cent.  Rep.  849. 

*  General  powers  of  receivers  to  purchase 
rolling  stock  and  to  pay  wages,  etc.  Wages  of 
employes  held  not  to  include  services  of  counsel, 
see  note,  48  Am.  &  Eng.  R.  Cas.  681. 


m 


1186 


RECEIVERS,  52-54. 


m 


I?'- 


Ill 


l 


nifr. 


12  A/i.  Rep.  1 88 ;  affirming  41  N.  J.  Eq.  167, 
I  All.  Rep.  134. 

52.  Power  to  incur  cxpeiiNc,  iiiako 
outlay 8,  etc.* — A  receiver  should  not 
borrow  large  sums  of  money  to  pay  operat- 
ing expenses  of  his  railroiid  without  per- 
mission of  court,  and  if  he  does  so  a  court 
of  equity  may  allow  it  in  settling  his  ac- 
counts,  but  it  will  not  be  made  a  lien  in 
preference  to  the  bonded  indebtedness  of 
the  road.  But  a  receiver  may  borrow  small 
sums  for  necessary  operating  expenses  with 
the  permission  of  the  court.  Union  Trust  Co. 
V.  Illinois  Midland R.  Co.,  25  Am.  .S-  Eng.  R. 
Cas.  560,  117  U.  S.  434.  6  Sup.  Ct.  ;?«•/."  809. 
— Explained  in  Mercantile  Trust  Co.  v. 
Kanawha*  O.  R.  Co..  50  Fed.  Rep.  874. 

All  outlays  made  by  a  receiver  in  good 
faith,  in  the  ordinary  course,  with  a  view  to 
advance  and  promote  the  business  of  the 
road,  and  to  render  it  profitable  and  suc- 
cessful, are  fairly  within  the  line  of  discre- 
tion which  is  necessarily  allowed  to  a  re- 
ceiver intrusted  with  the  management  and 
operation  of  a  railroad.  Cowdrey  v.  Galves- 
ton, H.  Gr'  H.  R.  Co.,  I  Woods  (U.  S.)  331. 
— Approved  in  Meyer  v.  Johnston,  64  Ala. 
603.  Quoted  in  Lehigh  C.  &  N.  Co.  v. 
Central  R.  Co.,  9  Am.  <S  Eng.  R.  Cas.  479, 
35  N.  J.  Eq.  426. 

His  duties,  and  the  discretion  with  which 
he  is  invested,  are  very  diflferent  from  those 
of  a  passive  receiver,  appointed  merely  to 
collect  and  hold  moneys  due  on  prior  trans- 
actions, or  rents  accruing  from  houses  and 
lands.  And  to  such  outlays  in  ordinary 
course  may  properly  be  referred  not  only 
the  keeping  of  the  road,  buildings,  and 
rolling  stock  in  repair,  but  also  the  provid- 
ing of  such  additional  accommodations, 
stock,  and  instrumentalities  as  the  necessi- 
tiesof  the  business  mayrequire,always  refer- 
ring to  the  court,  or  to  the  master  appointed 
in  that  behalf,  for  advice  and  authority  in 
any  matter  of  importance  which  may  in- 
volve a  considerable  outlay  of  money  in 
lump.  Cowdrey  v.  Galveston,  H.  6-  H.  R. 
Co.,  I   Woods  {(/.S.)  331. 

And  except  in  extraordinary  cases  the 
submission  by  the  receiver  of  his  accounts 
to  the  master  at  frequent  intervals,  whereby 
the  latter  may  ascertain  Itom  time  to  time 
the  character  of  the  expenditi'res  made, 
and  disallow  whatever  may  not  meet  his  ap- 


*  Authority  of  receiver  to  incur  expense,  see 
note,  3  Am.  &  Eng.  R.  Cas.-  180. 


proval,  will  be  regarded  as  a  sufficient  refer- 
ence to  the  court  for  its  ratification  of  the 
receiver's  proceedings.  In  extraordinary 
cases,  involving  a  large  outlay  of  money, 
the  receiver  should  always  apply  to  the 
court  in  advance,  and  obtain  its  authority 
for  the  purchase  or  improvement  proposed. 
Cowdrey  v.  Galveston,  H.  &»  H.  R.  Co.,  I 
Woods  {U.S.)  331. 

It  is  the  duty  of  the  receivir  of  the  gross 
proceeds  and  revenues  of  a  railway  to  pay 
all  expenses  necessary  for  the  maintenance, 
management,  and  working  of  the  under- 
taking, but  he  is  not  warranted  in  expend- 
ing the  same  in  extraordinary  outlays,  and 
where  an  application  is  made  by  the  receiver 
to  authorize  the  purchase  of  a  large  amount 
of  rolling  stock,  the  outlay  in  respect  of 
which  will  require  to  be  met  by  anticipating 
income,  the  court  will  refuse  its  sanction. 
Lee  V.  Victoria  R.  Co.,  2g  Grant's  C/i.  (U. 
C.)  1 10. 

53.  Power  to  pledge  assets.— Where 
a  bill  is  filed  by  the  president  and  directors 
of  a  company,  alleging  that,  as  a  result  of 
an  unlawful  lease  and  the  diversion  of  its 
income,  it  has  been  embarrassed,  but,  if 
properly  managed,  it  may  extricate  itself 
from  its  difficulties,  and  the  court  appoints 
the  president  receiver  for  the  purpose  of 
preserving  the  property,  and  with  the  aid  of 
the  court  placing  it  upon  a  prosperous  foot- 
ing, and  no  lien  creditors  are  parties,  it  is 
competent  for  such  receiver,  with  the  au- 
thority of  the  court,  to  pledge  collateral  and 
equitable  assets  of  the  company  to  secure 
loans  necessary  to  its  operation,  and  also  to 
incur  a  liability  for  the  expenses  of  a  re- 
funding scheme.  Clarke  v.  Central  R.  &•  B. 
Co.,  54  Fed.  Rep.  556. 

If,  however,  before  such  expenses  are 
paid,  creditors  holding  liens  upon  the  prop- 
erty are  made  parties,  the  court  will  not  ex 
parte  aWovi  the  expenses  of  such  refunding 
scheme  to  be  paid  by  the  receiver.  Clarke 
V.  Central  R.  <&«•  B.  Co.,  54  Fed.  Rep.  556. 

54.  Power  to  lease  the  road.— A 
receiver  of  a  railroad,  under  an  appointment 
of  the  governor,  has  no  power  to  lease  the 
road  so  as  to  vest  the  lessees  with  an  inter- 
est in  the  road  and  its  franchises,  which 
cannot  be  divested  by  a  subsequent  act  of 
the  legislature.  McMinnville  &-  M.  R.  Co. 
V,  Muggins,  3  Baxt.  (Tenn.)  177.— FOL- 
LOWED IN  State  V.  McMinnville  &  M.  R.  Co.. 
4  Am.  &  Eng.  R.  Cas.  95,  6  Lea  369. 

A  statutory  receiver  of  a  delinquent  rail- 


RECEIVERS,  55-57. 


lis; 


sufficient  rcfer- 
ificiition  of  the 

extraordinary 
;lay  of  money, 

apply   to  the 

its  autiiority 
nent  proposed. 

H.  K.  Co.,  I 

r:T  of  the  gross 

railway  to  pay 

e  maintenance, 

of  the  under- 

ted  in  expend- 

iry  outlays,  and 

by  the  receiver 

a  large  amount 

y  in  respect  of 

;  by  anticipating 

se  its  sanction. 

Grant's  Ch.  {U. 

is.set8.— Where 
n  and  directors 
t,  as  a  result  of 
diversion  of  its 
irrassed,  but,  if 
extricate  itself 
court  appoints 
the  purpose  of 
d  with  the  aid  of 
prosperous  foot- 
are  parties,  it  is 
er,  with  the  au- 
ge  collateral  and 
npany  to  secure 
ition,  and  also  to 
xpenses  of  a  re- 
Central  A\  <S-  B. 

:h  expenses  are 
s  upon  the  prop- 
court  will  not  ex 
I  such  refunding 
receiver.  Clarke 
Fed.  Rep.  556. 
the  road.— A 
r  an  appointment 
wer  to  lease  the 
es  with  an  inter- 
franchises,  which 
iibsequent  act  of 
ille  &*  M.  Ji.  Co. 
enn.)  177.— FOL- 
ville&M.R.Co.. 
6  Lea  369. 
a  delinquent  rail- 


road has  no  power  to  lease  the  road,  and 
payment  of  rents  by  the  lessees,  under  such 
void  lease,  to  an  officer  of  the  state,  and  the 
reception  of  such  rents  by  such  officer, 
would  be  no  ratification  of  the  void  lease; 
the  legislature  alone  could  ratify  it.  There 
can  be  no  recovery  for  improvements  made 
upon  the  road  by  the  lessees  under  such 
void  lease.  State  v.  McMinnville  &•  M.  R. 
Co.,  4  Am.&^  Kttg.R.  Cas.  95,6  Lea  {Tenn.) 
369.— Following  McMinnville  &  M.  R. 
Co.  V.  Huggins,  3  Baxt.  177. 

55.  Power  to  pay  claiiiiH  and  debts. 
— A  consolidated  railroad  which  was  made 
up  in  part  of  leased  lines  was  placed  in  the 
hands  of  a  receiver,  with  the  privilege  to 
any  lessor  company  to  resume  possession  of 
the  leased  line  if  the  rent  was  unpaid.  It 
was  made  to  appear  that  one  branch  of  the 
system  was  earning  more  than  operating 
expenses,  whereupon  an  order  was  entered 
directing  that  "after  meeting  obligations 
which  have  been  directed  to  be  discharged 
by  former  orders  the  rental  of  such  branch 
shall  be  paid  to  the  intervener,  until  other- 
wise directed."  Held,  that  this  did  not 
authorize  the  payment  of  such  until  the 
debts  expressly  directed  to  be  paid  by  the 
former  orders  of  the  court  had  been  paid. 
Central  Trust  Co.  v.  Wabash.  St.  L.  &*  P. 
R.  Co.,  38  Fed.  Rep.  63 ;  modifying  34  Fed. 
Rep.  259.— Applied  in  Central  Trust  Co. 
V.  Wabash,  St.  L.  &  P.  R.  Co..  46  Am.  & 
Eng.  R.  Cas.  301,  46  Fed.  Rep.  26. 

A  receiver  of  a  railroad  appointed  on  the 
application  of  judgment  creditors  is  not 
authorized  to  pay  claims  for  work  and 
materials  furnished  before  his  appointment. 
Powers  v.  Jourdan,  4  A'^.  Y.  S.  R.  839; 
affirmed  in  no  A^.  Y.  680,  mem,  18  N.  E. 
Rep.  483,  mem. 

A  court  of  chancery,  by  its  inherent  pow- 
ers, may  enlarge  the  power  of  its  receiver, 
but  no  power  to  pay  debts  except  out  of 
earnings  exists  as  to  a  receiver  by  contract. 
State  V.  Edgefield  &^  K.  R.  Co.,  4  Am.  &* 
Eng.  R.  Cas.  86,  6  Lea  ( Tenn.)  353. 

50.  Controlliiier  power  of  the 
court. — Where  the  property  of  a  railway 
or  other  corporation  is  being  administered 
by  a  receiver,  it  is  competent  for  the  court 
to  adjust  difficulties  between  the  receiver 
and  his  employes,  which,  in  the  absence  of 
such  adjustment,  would  tend  to  injure  the 
property  and  to  defeat  the  purpose  of  the 
receivership.  Water  house  v.  Comer,  53  Am. 
&*Eng.  R.  Cas.  329,  55  Fed.  Rep.  149. 


Certain  employes  of  a  railroad  in  the 
hands  of  a  receiver  made  complaint  to  the 
court  that  they  were  overworked,  underpaid, 
and  mistreated.  Held,  that  the  court  would 
not  interfere  where  the  only  proof  of  over- 
work was  that  certain  employes  in  the 
freight  department  were  at  times  required 
to  work  a  little  over  hours,  but  were  some- 
times idle  during  regular  hours ;  that  an 
increase  of  pay  would  not  be  ordered  where 
the  road  was  not  paying  expenses ;  and  that 
an  efficient,  honest  foreman  would  not  be  re- 
moved because  he  was  energetic  and  push- 
ing, and  sometimes  swore  at  the  men. 
Frank  v.  Denver  &*  R.  G.  R.  Co.,  23  Fed. 
Rep.  717. 

57.  Applylnt;  to  court  for  .advice. 
— Upon  application  to  the  court,  receivers 
will  be  generally  advised,  and,  in  particular 
cases,  particular  advice  and  instruction  will 
be  given.  The  advice  may  be  decisive  if 
the  parties  in  interest  are  present ;  but  if 
the  matter  is  /j: /ar/<f  such  advice  is  bind- 
ing only  on  the  receivers,  for  the  judge  may 
change  his  mind  on  hearing  full  argument. 
Missouri  Pac,  R.  Co.  v.  Texas  &•  P.  R.  Co., 
31  Am.  &•  Eng.  R.  Cas.  76,  31  Fed.  Rep. 
862. 

A  federal  circuit  court  appointed  a  re- 
ceiver for  an  entire  system  of  railroads, 
which  included  a  line  in  another  circuit. 
Subsequently  proceedings  were  commenced 
in  that  circuit  on  an  underlying  mortgage, 
and  the  receiver  was  discharged  for  that 
circuit  and  a  new  one  appointed;  where- 
upon the  first  receiver  applied  to  his  court 
for  instructions.  The  court  directed  him  to 
relinquish  control  of  the  road  in  the  other 
circuit,  together  with  the  other  lines  in  that 
circuit  whose  earnings  were  not  above  op- 
erating expenses,  unless  the  matter  should 
be  settled  in  khirtydays;  to  deliver  to  the 
other  receiver  the  account  books  relating  to 
the  roads  surrendered,  but  to  retain  the 
general  books  of  account,  with  the  right  to 
the  other  receiver  to  inspect  them  and  take 
copies;  to  surrender  the  rolling  stock  cov- 
ered by  the  mortgages  sought  to  be  fore- 
closed in  the  other  circuit,  and  to  retain  all 
moneys  in  his  hands,  or  which  might  come 
into  his  hands,  subject  to  the  order  of  the 
court.  Central  Trust  Co.  v.  Wabash,  St.  L. 
&*  P.  R.  Co.,  29  Fed.  Rep.  618. 

A  receiver,  without  an  order  of  court,  has 
no  right  to  grant  the  privilege  of  crossing 
the  railway  he  represents,  especially  at  a 
different  grade,  although  the  company  rep- 


I 


\W 


1188 


RECEIVERS,  58-60. 


resented  by  the  receiver  does  not  own  the 
fee.  The  right  to  run  the  road  over  tlie 
land  is  property,  and  can  only  be  taken 
by  agreement  or  by  condemnation.  Hvwlett 
v!  New  York,  IV.  S.  &*  B./^.  Co.,  14  -<4W.  A'. 
Cas.lN.  y.)328. 

3.  Duties  and  Liabilities. 

58.  Duties,  generally.— A  receiver  of 
a  corporation  takes  its  property,  including 
its  franchises,  in  the  same  condition  and 
subject  to  all  the  duties,  obligations,  and 
liabilities  that  rested  upon  the  corporation 
itself,  and,  in  the  administration  of  his  office, 
is  bound  for  the  performance  of  every  duty 
and  obligation  imposed  upon  the  corpora- 
tion by  its  charter  or  by  the  general  laws 
of  the  state.  State  {New  Jersey  S.  K.  Co. 
Pros.)  V.  Railroad  Com'rs,  41  N.  J.  L.  235. 

When  a  corporation  is  in  the  hands  of 
receivers,  and  the  treasurer  of  the  corpora- 
tion is  also  the  treasurer  of  the  receivers,  it 
is  clearly  the  treasurer's  duty,  under  Pa. 
Act  of  1S85,  to  assess  the  tax  upon  the 
company's  bonds,  on  payment  by  the  re- 
ceivers of  interest  thereon.  Com.  v.  Phila- 
delphia &*  R.  C.  &*/.  Co.,  137  Pa.  St.  481. 
20  Atl.  Rep.  531,  580.— Distinguished  in 
Com.  V.  Philadelphia  &  R.  R.  Co.,  150  Pa. 
St.  312. 

Where  the  receiver  is  appointed  to  re- 
ceive "  the  rents,  issues,  and  profits  of  the 
railway,"  it  is  his  duty  to  receive  the  gross 
receipts  of  the  company  for  the  carriage  of 
passengers,  freight,  mails,  etc.,  and  to  pay 
the  bills  for  running  expenses  thereout,  and 
not  to  receive  only  the  surplus  after  pay- 
ing the  expenses,  and  the  order  for  his  ap- 
pointment should  direct  the  payment  to  him 
of  the  tolls  and  profits  arising  from  the  rail- 
way. Simpson  v.  Ottawa  <S-  P.  R.  Co.,  i  Chan. 
Chamb.  (U.  C.)  126.— Quoted  in  Smith  v. 
Port  Dover  &  L.  H.  R.  Co.,  12  Ont.  App. 
288.  Reviewed  in  Phelps  v.  St.  Catha- 
rines &  N.  C.  R.  Co.,  19  Ont.  501. 

50.  Duty  to  make  repairs.*— A  re- 
ceiver who  fails  to  make  necessary  repairs 
on  rented  engines,  whereby  they  are  dam- 
aged, IS  liable  therefor,  payment  to  be  made 
out  of  the  trust  fund.  Turner  v.  Indian- 
apolis,  B.  <S-  W.  R.  Co.,  8  Biss.  {U.  S.)  527. 

Receivers  were  appointed  for  a  road,  in- 
cluding its  leased  lines,  among  which  was  a 

•  Liability  of  recHvers,  trustees,  etc.,  operat- 
ing railroad,  see  no^e,  70  Am.  Dec.  429. 


half  interest  in  a  certain  bridge  and  a  few 
miles  of  track  approaching  the  bridge.  The 
receivers  made  a  special  contract  for  repairs 
to  the  bridge,  which  were  made  by  the  joint 
tenants.  Held,  that  the  receivers  were 
liable,  as  such,  'or  the  repairs,  to  a  special 
receiver  appointed  for  the  other  joint  ten- 
ant, though  they  might  have  a  good  defense 
as  against  the  road  itself.  Central  Trust 
Co.  V.  Wabash,  St.  L.  &*  P.  R.  Co.,  52  Fed. 
Rep.  908. 

00.  How  far  bound  by  pre-existing 
contracts.* — An  assignee  or  receiver  of  a 
railroad  is  not  bound  to  adopt  the  contracts 
or  accept  the  leases  of  his  assignor,  if,  in 
his  opinion,  it  would  be  unprofitable  or  un- 
desirable to  do  so ;  and  he  is  entitled  to  a 
reasonable  time  to  elect  whether  to  adopt 
or  repudiate  such  contracts.  United  States 
Trust  Co.  V.  Wabash  Western  R.  Co.,  150 
U.  S.  287, 14  Sup.  Ct.  Rep.  86. 

Where  receivers  agree,  in  order  to  avoid 
litigation,  to  accept  certain  rails  which  the 
company  had  contracted  for,  believing  that 
the  acceptance  will  be  advuntcigeous.they  are 
bound  to  receive  them  and  pay  the  contract 
price,though  they  could  have  bought  them  at 
the  time  for  less,  and  the  prospect  of  advan- 
tage to  the  road  has  disappeared.  Wabash, 
St.  L.  «S-  P.  R.  Co.  v.  Central  Trust  Co.,  17 
Am.  &*  Eng.  R.  Cas.  261,  22  Fed.  Rep.  269. 

A  receiver  of  a  railroad  is  warranted  in 
continuing  a  pooling  contract  in  force  where 
it  is  for  the  benefit  of  the  road.  Where 
such  contract  has  been  executed,  the  re- 
ceiver cannot  set  up  its  invalidity,  but  must 
account  to  the  other  contracting  roads  for 
moneys  received  under  it.  Central  Trust 
Co.  V.  Ohio  C.  R.  Co.,  23  Am.  &*  Eng.  R. 
Cas.  666,  23  Fed.  Rep.  306. 

Where  a  railroad  company  has  let  a  con- 
tract for  the  erection  of  a  building,  and  the 
work  is  in  progress  when  the  road  goes  into 
the  hands  of  a  receiver,  the  builder  is  en- 
titled to  the  contract  price  ff^r  work  done 
after  the  receiver  is  appointed,  and  before 
he  is  notified  to  quit,  or  a  new  arrangement 
is  made.  Girard  L.  I.,  A.  &*  T.  Co.  v. 
Cooper.  51  Fed.  Rep.  332,  4  (/.  S.  App.  631, 
2  C.  C.  A.  245. 

It  is  not  true  that  a  receiver  empowered 
to  take  possession  of,  control,  and  operate 
a  railway,  is  in  no  sense  the  representative 
of  the  corporation  that  owns  it;  nor  is  it 

*  As  to  how  far  receivers  of  roads  are  bound 
by  existing  contracts,  see  note,  16  L.  R.  A.  90. 


RECEIVERS,  01,02. 


1189 


idge  and  a  few 
le  bridge.  The 
ract  ior  repairs 
de  by  the  joint 
receivers  were 
rs,  to  a  special 
ther  joint  ten- 
a  good  defense 
Central  Trust 
H.  Co.,  52  Fed. 

pre-existing 

or  receiver  of  a 
[)t  the  contracts 
assignor,  if,  in 
irofitabic  or  un- 
is  entitled  to  a 
hether  to  adopt 
United  States 
em  R.  Co.,  150 
86. 

>  order  to  avoid 
rails  which  the 
r,  believing  that 
tageous.theyare 
pay  the  contract 
e bought  them  at 
ospect  of  advan- 
eared.  Wabash^ 
'al  Trust  Co.,  17 
2  Fed.  Rep.  269. 
1  is  warranted  in 
ict  in  force  where 
le  road.  Where 
xecuted,  the  re- 
al idity,  but  must 
racting  roads  for 
Central  Trust 
Am.  &*  Eng.  R. 

ny  has  let  a  con- 
building,  and  the 
le  road  goes  into 
le  builder  is  en- 
e  f'^r  work  done 
nted,  and  before 
lew  arrangement 
i.  <S-  T.  Co.  V. 
[  U.  S.  App.  631. 

:iver  empowered 
trol,  and  operate 
le  representative 
wns  it;  nor  is  it 

)f  roads  are  bound 
e,  16  L.  R.  A.  90. 


i 


true  that  a  court  appointing  a  receiver  is 
under  no  obligation  to  continue  in  force, 
and  in  some  cases  to  cause  to  be  luifilled, 
the  personal  contracts  of  the  company, 
though  they  may  have  been  improvidently 
made  Howe  v.  Harding,  42  Am.  &*  Eng. 
R.  Cas.  I,  76  Tex.  17.  13  5.  W.  Rep.  41. 

A  receiver,  as  a  general  rule,  is  but  the 
agent  of  the  court  that  appoints  him,  with 
authority  to  take  possession  and  control  of 
property  the  subject-matter  of  litigation, 
and  is  not  the  representative  of  its  owner 
for  the  fulfilment  of  the  lattcr's  contracts 
except  in  cases  in  which  he  has  made  the 
contract  his  own  by  some  act  of  adoption. 
Brown  v.  Warner,  45  Am.  &*  Eng.  R.  Cas. 
95,  78  Tex.  543,  14  S.  fV.  Rep.  1032. 

When  appellants  were  appointed  receiv- 
ers of  the  railway,  there  was  a  contract  be- 
tween the  railway  company  and  a  third  party 
for  the  maintenance  of  a  switch  upon  his 
land.  Held,  that  this  was  purely  a  personal 
contract.  The  duty  of  the  receivers  was  to 
hold  and  operate  the  railway,  and  they 
were  not  bound  to  carry  out  the  contract. 
Brmon  v.  Warner,  45  Am.  &*  Eng.  R.  Cas. 
95,  78  Tex.  543,  14  S.  W.  Rep.  1032.— FOL- 
LOWING Hunt  V.  Reilly,  50  Tex.  99.  Quot- 
ing Southern  Exp.  Co.  v.  Western  N.  C.  R. 
Co.,  99  U.  S.  199;  Ellis  V.  Boston,  H.  &  E. 
R.  Co.,  107  Mass.  I.  Reviewing  Howe  v. 
Harding,  76  Tex.  17. 

It  is  error  to  overrule  a  general  demur- 
rer to  a  petition  setting  up  as  cause  of  action 
the  discontinuance  by  receivers  of  a  railway 
company  of  a  switch  upon  plaintiff's  land, 
for  maintenance  of  which  the  company  only 
was  bound.  Brown  v.  Warner,  45  Am.  &* 
Eng.  R.  Cas.  95.  78  Tex.  543,  14  S.  W.  Rep. 
1032. 

01. contracts  for  rolling  stock. 

Where  a  receiver  takes  possession  of  roll- 
ing stock  which  is  held  by  the  company 
under  an  agreement  for  the  payment  of  a 
rental,  the  title  being  retained  by  the 
lessor  until  a  certain  sum  shall  be  paid,  the 
owner  of  such  rolling  stock  is  entitled  to 
payment  for  its  use  by  the  receiver.  J^nee- 
land  V.  American  L.  &*  T.  Co.,  43  Am.  &* 
Eng.  R.  Cas.  519,  136  if.  S.  89,  10  Sup.  Ct. 
Rep.  950. 

The  rental  payable  by  the  receiver  under 
such  circumstances  is  to  be  estimated,  not 
according  to  the  actual  mileage,  but  accord- 
ing to  the  reasonable  value  of  the  rolling 
stock,  irrespective  of  the  actual  use.  /Cnee' 
land  V,  American  L.  &*  T.  Co.,  43  Am.  «S* 


Eng.  R.  Cas.  519,  136  U.  S.  89,  10  Sup.  Ct. 
Rep.  950. 

Where  receivers  are  directed  to  take 
charge  of  all  the  property  of  the  company, 
including  leased  cars,  and  they  take  charge 
of  certain  leased  sleeping  cars,  with  full 
knowledge  of  the  lease  and  of  the  rent 
agreed  to  be  paid  by  the  company  and 
other  obligation!!  assumed,  they  become  the 
assignees  of  the  company  and  are  bound  by 
the  contract.  Easton  v.  Houston  S^  T.  C.  R. 
Co.,  38  Fed.  Rep.  784.— Following  Wood- 
ruff V.  Erie  R.  Co.,  93  N.  Y.  619;  Dorrance 
V.  Jones,  27  Ala.  630;  Pugsley  t/.  Aikin,  11 
N.  Y.  494;  Sutliff  V.  Atwood,  15  Ohio  St. 
186;   People  ex  rel.  v.   Dudley,  58  N.  Y. 

323. 
02.  contracts  made  by  former 

receiver.— Contracts  made  by  a  preceding 
receiver  impose  no  legal  duty  or  obligation 
on  his  successor,  and  damages  cannot  be  re- 
covered at  law  against  the  succeeding  re- 
ceiver for  refusing  to  perform  the  contracts 
of  his  predecessor.  Lehigh  C.  &*  N.  Co.  v. 
Central R.  Co.,  41  A'./.  Eq.  167,  3  Atl.  Rep. 
•34;  affirmed  in  6,1  N.J.  Eg.  669,  12  Atl. 
Rep.  188. 

The  duties  of  a  succeeding  receiver,  in 
respect  to  the  contracts  of  his  predecessor, 
are  only  such  as,  in  view  of  all  the  circum- 
stances of  the  case,  it  is  equitable  to  impose 
— such  as,  with  the  light  before  him,  the 
succeeding  receiver  can  perform  without 
risk  of  personal  liability  and  with  safety  to 
the  trust.  Lehigh  C.  d-  A^.  Co.  v.  Central 
R.  Co.,  41  A'.  /.  Eq.  167,  3  Atl.  Rep.  134; 
affirmed  in  43  N.  J.  Eq.  669,  12  Atl.  Rep. 
188. 

Complainant  contracted  with  a  former  re- 
ceiver of  a  railroad  to  remove  the  coal, 
ashes,  and  cinders  from  a  specified  ash-pit 
on  the  road,  and  to  have  therefor  the  coal, 
ashes,  and  cinders  so  removed.  He  alleges 
that  the  former  receiver  refused  to  allow 
him  to  perform  the  contract,  and  that  he 
thereby  sustained  great  damage.  Held, 
on  demurrer,  that  this  court  will  enter- 
tain jurisdiction  of  the  suit,  on  the  ground 
that  the  contract  having  been  made  with  a 
former  receiver,  the  present  receiver  (the 
defendant)  cannot  be  sued  thereon  at  law, 
and  the  claim  is  against  the  trust  funds  of 
the  railroad  company,  which  are  still  under 
the  control  of  this  court.  Kerr  v.  Little,  39 
N.J.  Eq.%3. 

In  such  case  plaintiff  may  recover  the 
damages  which  he  sustained  from  the  breach 


1190 


RECEIVERS,  03-07. 


of  the  contract.     Kerr  v,  Liltlf,  42  A'.  /. 
Eq.  528.  7  Cent.  Rep.  125,  9  Atl.  Rep.  110. 

03.  Liability  on  JiHl|fiiu>iitH  ob- 
tained bcl'oro  appointment.  —  I*cti- 
tioner  furnished  materials  wiiicii  were  used 
in  the  construction  of  a  tensed  road,  and 
after  suit  was  brought  against  the  lessor, 
but  before  judgment,  a  receiver  of  the  whole 
system  was  appointed.  Held,  that  the 
judgment  could  not  operate  as  a  judgment 
against  the  receivers,  nor  bind  the  realty  in 
their  hands.  Clyde  v.  Richmond  &»  D,  R. 
Co.,  56  Fed.  Rep.  539. 

Tlie  above  receiver  was  appointed  by  a 
federal  com  t  in  a  state  where  the  lessor  was 
created,  and  was  extended  by  ancillary  pro- 
ceedings in  another  state  where  the  leased 
r(jad  was  situated.  The  petitioner  filed  his 
claim  ill  the  court  of  the  latter  state,  asking 
tliat  It  be  paid  in  preference  to  any  mort- 
gage lien .  //fid,  that  he  should  have  sought 
relief  in  the  other  court  where  the  receiver 
was  appointed ;  but  the  claim  being  a  meri- 
torious one,  the  court  would  retain  it,  in 
order  to  assist  in  enforcing  payment.  Clj'de 
V.  /Richmond  &*  /).  R.  Co.,  56  J^ed.  Rep.  539. 

Where  a  receiver  is  appointed  for  a  cor- 
poration, after  the  decision  of  a  suit  against 
such  corporation,  holding  it  bound  to  pay 
certain  taxes,  he  will  be  concluded  by  the 
judgment  the  same  as  the  body  he  repre- 
sents.    I/opkins  V.  Taylor,  87  ///.  436. 

04.  liiability  as  carriers.*—  In  the 
operation  and  management  of  railroads,  re- 
ceivers in  chancery  sustain  to  persons  deal- 
ing with  them  the  character  of  common 
carriers,  and  though  they  may  at  all  times 
invoke  the  aid  of  the  court  in  any  matter 
aflfecting  their  duty  or  liability,  yet,  waiving 
this,  they  are  amenable  in  the  common  law 
courts  to  actions  for  negligence  as  carriers. 
Newell  v.  Smith,  iV)  Vt.  255,  17  Am.  /iy.  Rep. 
100.— Quoted  in  Lyman  v.  Central  Vt.  R. 
Co.,  59  Vt.  167.  Reviewed  in  Kain  v. 
Smith.  2  Am.  &  Eng.  R.  Cas.  545.  80  N.  Y. 
458. 

The  receiver  of  a  railroad  who  controls  its 
operation  is  no  less  a  common  carrier  be- 
cause the  property  of  the  road  is  in  the  cus- 
tody of  the  court ;  and  as  such  carrier  he  is 
obliged  to  receive  and  transport  cars  and 
freight,  and  to  furnish  accommodations  to 
connecting  lines,  to  the  same  extent  and  in 
the  same  manner  as  are  the  proper  officers 


•  Receiver,  liability  of,  as  common   carrier, 
see  note.  35  Am.  &  Eng    R.  Cas.  S. 


of  other  railroad  companies.  liten  v.  ff'n- 
bash,  St.  L.  (S-  r.  R.  Co.,  35  Am.  &'  En^r.  A\ 
Ca.f.  646,  34  /•>//.  A'ep.  244. 

It  is  error  to  charge  that  receivers  are 
held  to  the  greatest  possible  care  and  dili- 
gence for  the  safety  of  their  passengers,  and 
to  provide  for  their  safe  conveyance,  as  far 
ns  human  care  and  forbsight  will  go.  Fordyre 
v.  Chanciy,  2  Tex,  Civ.  App,  24,  21  S.  \V. 
Rep.  181. 

OS.  Liability  for  discriniination.— 
An  attempt  by  a  receiver  to  accumulate 
money  for  the  benefit  of  the  corporators  or 
their  creditors,  by  making  one  shipper  pay 
tribute  to  his  rival  in  business,  is  a  gross, 
illegal,  and  inexcusable  abuse  of  a  public 
trust,  requiring  his  removal,  /landy  v. 
Cleveland &*  Af.  R.  Co.,  y  Fed.  Rep.  689. 

In  Florida  an  unjust  discrimination  in 
freight  rates  is  a  criminal  offense  ;  and  it  is, 
therefore,  unlawful  for  a  receiver  of  a  rail- 
road to  make  such  discrimination.  Cutting 
V.  Florida  R.  St*  N.  Co.,  43  Fed.  /iV/.  747. 
See  also  Missouri  Pac.  /\'.  Co.  v.  Texas  &• 
P.  R.  Co..  31  Fed.  Rep.  862. 

00.  Liability  for  wages  of  em- 
ployes.— Though  an  employe  be  iiiiured 
without  negligence  on  the  part  of  tlie  re- 
ceiver who  is  in  charge  of  the  road,  on  the 
ground  of  justice  and  good  policy  the  court 
will  order  the  receiver  to  pay  him  his  wages 
until  he  has  recovered.  Missouri  Pac.  R. 
Co.  V.  Texas  &*  P.  R.  Co.,  33  Fed.  Rep.  701.— 
Followed  in  Missouri  Pac.  R.  Co.  v.  Texas 
&  P.  R.  Co.,  41  Fed.  Rr'-'  ■\'i<^.— Missouri 
Pac.  R.  Co.  V  Tex  ;  &>  J  ,,.  Co.,  41  Fed. 
Rep.    319.  ING   Missouri  Pac.   R. 

Co.  V.  T<  .  K.  Co.,  33  F    '.  Rep.  701. 

A  cou  New  York  wil      ot,  on  sup- 

plemental proceedings,  order  a  receiver 
appointed  in  anot'  i-r  state  to  pay  over 
money  to  a  judgrr.  nt  creditor,  though  it 
appears  that  the  money  is  due  from  the  re- 
ceiver to  the  defendant.  Smith  v.  McNa- 
mara,  15  //un  {N.  V.)  ^147. 

07.  Liability  for  rental  of  leaHed 
lines. — Where  a  railroad  company,  having 
leased  a  connecting  road,  enters  into  a  con- 
tract with  other  connecting  companies  b 
which  it  is  in  fact  owned,  giving  them  the 
right  to  use  its  tracks  and  terminal  facilities 
for  a  fixed  rent,  and  thereafter  demands  the 
execution  of  a  similar  contract  by  the  re- 
ceiver of  another  company,  who  previously 
had  the  use  of  the  line,  to  which  the  receiver 
objects  on  the  ground  that  the  terms  are 
exorbitant  and  oppressive,  and  that  he  has 


ill 


Jietrs  V.  ffrt. 
im.&*  Eng.  A\ 

receivers  are 
care  and  dili- 
>a88cngers,  and 
veyancc,  as  far 
ill  go.  For  dye  e 
24,  21  S.  \V. 

iniiiintioii.— 

to  accumulate 
corporators  or 
e  shipper  pay 
ss.  Is  a  gross, 
e  of  a  public 
/faiiify  V. 
fd.  AV/.  689. 
crimination    in 
MiSL- ;  and  it  is, 
eivcr  of  a  rail- 
it  ion.     Cultitif; 
Fed.  Rep.  ■j^'j, 
'0.  V.  Texas  &* 

ffcs   of   cm- 

lye  l)c  iiiiured 
lart  of  tlie  re- 
le  road,  on  the 
olicy  the  court 

him  his  wages 
'ssouri  Pac.  R. 
'ed.Rep.  701. — 
R.  Co.  V.  Texas 
V^.— Missouri 
I.  Co.,  4\  Fed. 
isouri  Pac.  R. 
F<  !.  Rep.  701. 
!  .lot,  on  sup- 
ler  a  receiver 

to  pay  over 
:or.  though  it 
e  from  the  re- 
it'iA  v.  McNa- 

iil  of  leased 

npany,  having 
rs  into  a  con- 
:om  panics  1. 
ing  them  the 
ninal  facilities 
■  demands  the 
ict  by  the  re- 
ho  previously 
h  the  receiver 
he  terms  are 
1  that  he  has 


RECEIVERS,  08,00. 


1191 


no  authority  to  execute  such  contract  with- 
out the  order  of  the  court,  whereupon  it  19 
agreed  that  the  company  shall  enjoy  like 
privileges,  paying  like  terminal  charges  as 
the  other  companies,  the  rent  not  being 
fixed,  but  to  be  left  to  the  determinjition  of 
the  judge,  and  the  same  rate  as  previously 
paid  to  be  paid  in  tlie  meantime— the 
amount  paid  by  the  other  roads  pursuant  to 
such  contract  does  not,  in  the  absence  of 
evidence  showing  that  the  sum  paid  by  the 
receiver  is  not  all  that  the  use  of  the  ro.id  is 
fairly  worth,  furnish  the  measure  of  damages 
for  such  use.  Peoria  i5«»  P.  U.  A'.  Co.  v. 
Chicago,  P.  Sf*  S.  W.  R.  Co.,  36  Am.  <S-  Fng. 
R.  Cas.  488,  137  C/.  S.  200.  8  Sufi.  Ct.  Refi. 
1125. 

Where  a  receiver  is  appointed  for  a  rail- 
road system,  including  leased  lines,  he  is 
not  liable  for  the  rent  of  one  of  the  leased 
lines  simply  because  he  takes  possession 
under  an  order  of  the  court ;  nor  as  assignee ; 
nor  is  he  liable  for  use  and  occupation  un« 
til  after  a  reasonable  time  to  determine 
whether  the  lease  should  be  sold  or  the 
road  used  for  the  benefit  of  creditors.  Quin- 
cy.  At.  <S-  P.  R.  Co.  V.  Humfihreys,  28  Abb. 
N.  Cas.  {N.  Y.)  332.  145  U.  S.  82.  12  .'iufi. 
Ct.  Refi.  787. 

Where  a  receiver  is  appointed  for  a  whole 
system,  including  leased  lines,  and  the  ac- 
counts are  so  kept  as  not  to  show  whether  a 
certain  leased  line  is  profitable  in  itself  or 
not,  and  where  the  receiver  could  not  begin 
to  ascertain  the  fact  in  three  months,  he 
cannot  be  said  to  have  adojjted  the  lease  so 
as  to  charge  him  with  the  rent  from  the 
general  funds  because  he  has  failed  for 
nine  months  to  notify  the  lessor  that  he 
would  not  pay  the  rent ;  and  especially  is 
this  so  where  tlie  order  of  the  court  directs 
the  receiver  to  pay  the  rent  out  of  the  in- 
come of  the  line.  St.  Josefih  &*  St.  L.  R. 
Co.  V.  Humphreys,  145  U.  S.  105,  12  Sufi. 
Ct.  Rep.  795.  — Following  Quincy,  M  & 
P.  R.  Co.  V.  Humphreys,  145  U.  S.  82,  12 
Sup.  Ct.  Rep.  787,  28  Abb.  N.  Cas.  332.— 
Applied  in  Park?/.  New  York,  L.  E.  &  W. 
R.  Co.,  57  Fed.  Rep. 799. 

Where  one  road  leases  another,  with  the 
provision  that  the  lease  shall  be  forfeited 
upon  the  non-payment  of  rent,  receivers  of 
the  lessee  company  who  were  appointed  for 
the  purpose  of  preserving  the  whole  system 
are  liable  for  rent  falling  due  during  the 
receivership.  Broivn  v.  Toledo,  P.  &•  IV.  R. 
Co.,  35  Fed.  Refi.  444. 


Defendant  company  leased  the.  road  of 
petitioner,  agreeing  to  pay  a  certain  share  of 
the  gross  earnings  as  rental,  and  providing 
that  a  failure  to  pay  should  work  a  forfeiture 
of  the  lease.  Subsequently,  defendant  be- 
came insolvent  and  ruceiverswere  appointed. 
At  the  time  defendant  was  in  arrears  fur 
rent  of  more  than  $300,000.  But  soon  ;iftcr- 
ward  the  receivers  paid  over  $331,000,  more 
than  the  net  earnings  of  the  leased  road,  but 
less  than  the  rent  stipulated  for  in  the  lease. 
After  this  payment,  and  fifteen  days  after 
the  receivers  were  appointed,  petitioner 
asked  that  the  receivers  he  required  to  pay 
the  balance  of  the  rent  due,  and  if  they  did 
not  have  money  enough  for  the  purpose 
that  receivers'  certificates  should  issue  for 
the  rent  due  or  to  become  due,  to  be  made 
a  prior  lien  on  defendant's  property,  but  no 
application  was  made  for  a  forfeiture  of  the 
lease,  //e/d,  that  the  receivers  did  not  be- 
come such  assignees  of  the  lease  as  bound 
them  in  any  event  to  pay  the  full  rental ; 
nor  had  they  retained  possession  for  such  a 
time  as  amounted  to  an  election  to  accept 
the  lease ;  and  that  the  court  would  not 
direct  the  receivers'  certificates  to  issue,  nor 
make  any  charge  upon  the  corpus  of  the 
property  generally.  Parh  v.  /Vnv  York,  L. 
E.  iS-  \V.  R.  Co.,  57  Fed.  Rep.  799.— Apply- 
.INO  Quincy,  M.  &  P.  R.  Co.  v.  Humphreys, 
145  U.  S,  82,  12  Sup.  Ct.  Rep.  787;  St.  Jo- 
seph &  St.  L.  R.  Co.  V.  Humphreys,  145  U. 
S.  105,  12  Sup.  Ct.  Rep.  791,. 

08.  Liability  for  coiiiiNel  focH.  —  A 
receiver  was  appointed  for  a  railroad  for  the 
non-payment  of  interest  on  bonds  which 
had  been  issued  by  the  state  to  aid  the  road. 
A  receiver  claiming  authority  under  the 
state  employed  counsel  to  oust  the  lessee  of 
another  receiver,  but  by  proceedings  finally 
had,  the  property  was  sold.  Held,  that  the 
litigation  was  not  for  the  benefit  of  the  state 
so  a^  to  entitle  the  attorneys  to  a  lien  upon 
the  fund  arising  from  the  sale,  but  they 
must  look  first  to  the  receiver  for  their  fees. 
Neither  were  they  creditors  of  the  company, 
and  could  not  be  made  parties  to  a  bill  filed 
in  the  case,  praying  that  all  creditors  of  the 
road  be  made  defendants.  State  v.  Edgt' 
field &-  K.  R.  Co.,  4Baxt.  {Tettn.)  92. 

Ot>.  Ijial>ility  for  iicfrligeiicc.*  —  A 
receiver  operating  a  railroad  stands,  in 
respect  to  duty  and  liability,  where  the  cor- 


*  Liability  ot  receivers,  trustees,  etc.,  for  negli- 
gence, see  note,  32  Am.  &  Eng.  R.  Cas   413. 


HT^ 


1193 


RECEIVERS,  70-72. 


poration  would,  were  it  operating  tlie  road, 
and  the  question  whether  or  not  the  receiver 
is  liable  for  negligence  must  be  tested  by 
the  same  rules  that  wouM  be  applied  if  the 
corporation  was  the  actual  party  defendant. 
Klein  v.  Jewett,  26  N.  J.  Eg.  474 ;  affirmed 
itiTjN.J.  Eq.  550.— Followed  in  Davis 
V.  Duncan,  17  Am.  &  Eng.  R.  Cas.  295,  15 
Fed.  Rep.  477.  Reviewed  in  Kainv.  Smith, 

2  Am.  &  Eng.  R.  Cas.  545.  80  N.  Y.  458. 
70.  Liability  for  torts,  generally.* 

— A  receiver  is  not  personally  liable  for  the 
torts  of  his  employes.  It  is  only  when  he 
commits  the  wrong  himself  that  he  is  per- 
sonally liable.  A  proceeding  against  him  for 
the  torts  of  his  employes  is  in  the  nature  of 
a  proceeding  in  rem,  and  renders  the  prop- 
erty held  by  him  as  receiver  liable  for  such 
injuries.  Davis  m.  Duncan,  17  An..  &*  Eng. 
R.  Cas.  295.  19  Fed.  Rep.  477.— FOLLOWING 
Murphy  7/.  Holbrook,  20  Ohio  St.  137  ;  Klein 
V.  Jewett,  26  N.  J.  Eq.  474  ;  Jordan  v.  Wells, 

3  Woods  (U.  S.)  527  ;  Kennedy  v.  Indianap- 
olis &  C.  R.  Co.,  2  Flipp.  (U.  S.)  709. 

When  a  liability  of  a  receiver  is  incurred 
by  the  negligence  of  his  servants  in  oper- 
ating a  railrpad  under  its  franchises,  and  his 
resignation  is  accepted  by  a  federal  court, 
and  a  successor  is  appointed  by  such  court, 
who  qualifies  and  assumes  the  charge  and 
control  of  the  property  and  fund,  an  action 
in  the  state  court  by  the  >'  ty  aggrieved 
will  lie  against  such  successor  in  his  repre- 
sentative capacity.  McNulta  v.  Lockrid^e, 
lyj  III.  270,27  N.  E.  Rep.  452.— Quoting 
New  York  &  W.  U.  Tel.  Co.  v.  Jewett,  115 
N.  Y.  166. 

The  receiver  of  a  delinquent  railroad,  ap- 
pointed by  the  governor  of  the  state,  under 
Tenn.  Laws  1852,  p.  151,  is  a  public  agent, 
and,  as  such,  not  liable  for  the  wrongs  or 
negligence  of  his  employes,  but  only  for  his 
own  wrongful  acts  or  delinquencies.  Hop- 
kins v.  Connel,  2  Tenn.  Ch.  323. 

A  receiver  of  a  railroad  company,  while 
exercising  the  franchise  of  such  company 
and  operatmg  its  road,  is,  in  his  official  ca- 
pacity, subject  to  the  same  rules  of  liability 
as  apply  to  th  company  itself.  For  torts 
committed  by  his  servants  in  operating  the 
road  under  his  management,  lie  is  responsi- 
ble, upon  the  principle  of  respondeat  supe- 
rior.  McNulta  v.  Lockrit^e,  137  ///.  270, 
27  A^.  E.  Rep.  452. 


•Liability  of  receiver  for  torts,  »ee  notes,  17 
Am.  &  Rnc.  R.  Cas.  301  ;  35  /</.  4. 


A  continuance  by  the  receivers  of  a  rail- 
way company  of  an  embHnkment  not  pro- 
vided with  sufficient  culverts  a.-d  sluic  s  to 
drain  the  water,  and  the  use  of  the  sanis,  is 
an  adoption  of  the  nuisance,  and  renders 
them  liable,  as  were  the  originators  of  the 
wrong,  without  actual  notice  having  been 
brought  to  them.  Clark  v.  Dyer,  81  Tex. 
339,  16  S.  W.  Rep.  1061.— Distinguishing 
Houston  Water  Works  v.  Kennedy,  70  Tex. 
233.  Following  Austin  &  N.  W.  R.  Co. 
V.  Anderson,  79  Tex.  427. 

71.  Liability  for  personal  inju- 
ries,*— Where  receivers  have  the  exclusive 
charge  of  the  management  of  a  railroad  and 
the  hiring  of  employes,  as  fully  as  such 
powers  may  be  exercised  by  the  :ompany 
itself,  the  receivers  are  liable  for  injuries 

itained  whenever  the  corporation  would 
be  liable,  if  in  possession.  IVinbourn's  Case, 
30  Fed.  Rep.  167.  Ohio  &*  M.  R.  Co.  v  An- 
derson, 10  ///.  App.  313.  Murphy  v.  Hol- 
brook, 20  Ohio  St.  I37.~QU0TING  Sprague 
V.  Smith,  29  Vt.  421.  Reviewing  BIu- 
menthal  v.  Brainerd,  38  Vt.  402 ;  Paige  v. 
Smith,  99  Mass.  y)^.— Rogers  v.  Mobile &» 
O.  R.   Co.,  {Tenn.)  12  Am.  &*  Eng.  R.  Cas. 

442- 

The  damages  and  costs  will  be  directed  to 
be  paid  out  of  the  current  earnings  of  the 
road,  the  injuries  having  been  inflicted 
while  the  road  was  under  the  control  of  a 
receiver.  A'/c/h  v.  Je-wett,  26  A'^  /.  Eq.  474 ; 
affirmed  in  27  A'.  /.  Eq.  5  50. 

Receivers  of  a  railroad  a''e  liable  for  an 
assault  on  a  passenger  by  a  conductor, 
though  it  be  wilful  and  malicious,  and  out- 
side of  his  usuiil  duties.  Dillingham  v. 
Russell,  37  Am.  &*  Eng.  R.  Cas.  i,  73  Tex. 
47.  3  ^-  A'.  A.  634.  1 1  S.   ir.  Rep.  139. 

72.  Liability  for  injuries  to  em- 
ployes.— The  receiver  of  a  railroad  is  liable 
for  an  injury  to  an  employ6  whenever  a 
master  would  be  liable  under  the  common 
law  for  negligently  injuring  his  employe; 
but  the  question  whether  a  receiver  is  "  a 
railroad  company,"  within  the  meaning  of 
Kansas  Laws  of  1879,  ch.  84,  §  29,  which 
makes  such  companies  liable  for  injuries  to 
employes  resulting  from  the  negligence  of 
their  agents  or  employes,  discussed  but  not 
decided.  McMahon  v.  Henning,  i  McCrary 
(U.  S.)  116,  i  Fed.  Rep.  353. 


•  Liability  of  receiver  for  personal  injuries, 
see  notes,  15  L  R.  A.  262:5  Am.  St.  Rip.  315. 
Sec  also  48  A'..  &  Eng.  R,  Cas.  673,  abstr. 


RECEIVERS,  73,  74. 


1193 


vers  of  a  rail- 
nent  not  pro- 
a'd  sluic  $;  to 
f  the  sani3,  is 
and  renders 
inators  of  the 
having  been 
Dyer,  8i  Tex. 
riNGUISHING 

nedy,  70  Tex. 
N.  W.  R.  Co. 

soiial    iiijii. 

the  exclusive 

a  railroad  and 

fully  as  such 

the  company 

le  for  Injuries 

oration  would 

inbourn's  Case, 

R.  Co.  V  An- 

urphy  V.  Hol- 

TING  Sprague 

k^IEWING    Blu- 

402 ;  Paige  v. 

f  V.   Mobile  &* 

-  Eng.  K.  Cas. 

be  directed  to 
arnings  of  the 
been  inflicted 
le  control  of  a 
N.J.Eq.^7^; 

!  liable  for  an 
a  conductor. 
:ious,  and  out- 
Dillingham  v. 
:«.  1,  73  Tex. 
^ep.  139. 
rles  to  eiii- 
ilroad  is  liable 
6  whenever  a 
'  the  common 
his  employe; 
receiver  is  "  a 
e  meaning  of 
.  §  29,  which 
or  injuries  to 
negligence  of 
Jssed  but  not 
!f ,  I  McCrary 


sonal  injuries, 
St.  Rep.  315. 
673,  abttr. 


I 


i 


A  receiver  who  is  operating  a  railroad 
under  an  order  of  court  is  within  the  mean- 
ing of  the  term  "  persons  owning  or  operat- 
ing railways,"  as  used  in  Iowa  Code,  §§ 
1278,  1307  ;  and  therefore  a  receiver,  as  such, 
is  liable  for  an  injury  to  an  employe  caused 
by  the  negligence  of  a  co-employe.  Sloan 
'..  Central  Iowa  R.  Co.,  11  Am.  &*  Eng.  R. 
Cas.  145,  62  Iowa  728,  16  N.   IV.  Rep.  331. 

A  receiver  of  railway  property  who  takes 
it  subject  to  all  "claims,  debts,  and  liabili- 
ties "  is  liable  to  pay  claims  for  damages  for 
injuries  to  employes.  Central  Trust  C  v. 
Sloan,  23  Am.  &*  Eng.  R.  Cas.  398,  65  Iwva 
€55,  22  N.  W.  Rep.  916. 

Where  the  receiver  of  a  railroad  is  sued 
for  an  injury  to  one  of  his  employes,  result- 
ing from  an  insufficient  number  of  men  to 
keep  the  track  in  repair,  he  cannot  defend 
on  the  ground  that  the  road  was  not  pay- 
ing expenses,  and  that  he  did  not  have 
funds  in  his  hands  to  employ  a  sufficient 
number  of  trackmen.  Graham  v.  Chapman, 
u  N.  V.  Supp.  318,  58  Hun  602,33  A^.  y-S. 

/?.  349- 

In  an  action  against  a  receiver  for  damages 
for  the  death  of  a  fireman  caused  by  the  ex- 
plosion of  an  engine,  the  circuit  judge  cor- 
rectly ruled  that  "  the  measure  of  the  re- 
ceiver's duty  was  the  exercise  of  ordinary 
care  in  the  selection  of  machinery."  Ex 
parte  Johnson,  ig  So,  Car.  492. 

A  company  or  receiver  operating  a  rail- 
way should  be  held  as  fully  responsible  to 
an  employ^  and  others  for  an  injury  re- 
sulting from  a  defect  existing  when  the  road 
was  taken  possession  of  by  the  company  or 
receiver,  as  for  a  defect  occurring  under  the 
management  of  either.  It  is  not  error  to 
refuse  a  charge  that  unless  the  receivers  had 
time  to  repair  the  road,  if  defective  when 
they  took  possession,  the  company  would 
not  be  liable  for  an  injury  from  a  defect  in 
the  track.  Texas  <S-  P.  R.  Co.  v.  Ge^er,  79 
Ttx.  13. 155.  W.  Rep.  214.— Followed  in 
Boggs  V.  Brown,  82  Tex.  41. 

And  should  the  rule  insisted  upon  be 
conceded,  that  the  receivers  should  not  be 
liable  unless  time  sufficient  was  allowed 
them  to  repair  defects,  still  it  would  be  no 
defense,  the  road  being  liable  from  having 
received  from  the  receivers  large  sums  in 
way  of  betterments  which  should  have  been 
applied  to  such  claims.  Texas  &*  P.  R.  Co. 
v.  Getgtr,  79  Tex.  13,  155.  IV.  Rep.  214.— 
Reviewing  Batterson  v.  Chicago  &  G.  T.  R. 
Co.,  &  Am.  &  Eng.  R.  Cas.  123, 49  Mich.  184. 


73.  liiability  for  injuries  cansfng 
fleatli.* — The  administrator  of  a  party 
injured  by  a  railroad  may,  under  the  Ohio 
"act  requiring  compensation  for  causing 
death  by  wrongful  act,  neglect,  cr  default," 
bring  an  action  against  the  receiver  of  the 
company,  under  the  same  res^trictions  and 
on  the  same  grounds  that  the  party  injured, 
if  death  had  not  ensued,  might  have  done. 
Murphy  v.  Holbrook,  20  Ohio  St.  137. — Re- 
viewed IN  Turner  v.  Cross,  83  Tex.  218. 

A  receiver  of  a  railway  is  neither  propri- 
etor, owner,  charterer,  nor  hirer  of  the  rail- 
way operated  by  him.  He  is  not,  therefore, 
liable  as  such  under  Tex.  Rev.  St.  art.  2899 
(prior  to  its  amendment  April  11,  1892), 
for  injury  negligently  inflicted  upon  and  re- 
sulting in  the  death  of  an  employe  of  the 
road  so  operated.  Turner  v.  Cross,  83  Ttx. 
218. 18  S.  W.  Rep.  578.— Reviewing  Pierce 
V.  Concord  R.  Co.,  51  N.  H.  591 ;  Hall  v. 
Brown,  54  N.  H.  497 ;  Murphy  v.  Holbrook, 
20  Ohio  St.  137;  Little  v.  Dusenberr>',  46 
N.  J.  L.  614 ;  Lyman  v.  Central  Vt.  R.  Co.. 
59  Vt.  167 ;  Erwin  v.  Davenport,  9  Heisk. 
(Tenn.)  45.— Followed  in  Texas  &  P.  R. 
Co.!/.  Collins,  84 Tex.  121..  Followed  and 
quoted  in  Yoakum  v.  Selph,  83  Tex.  607. 
—  Yoakum  v.  Selph,  83  Tex.  607,  19  S.  VV. 
Rep.  145.— Following  and  quoting  Tur- 
ner V.  Cross,  83  Tex.  218.— Followed  in 
Texas  &  P.  R.  Co.  v.  Bledsoe,  2  Tex.  Civ. 
App.  88 ;  Texas  &  P.  R.  Co.  v.  Collins,  84 
Tex.  \z\.- Texas  &*  P.  R.  Co.  v.  Geiger, 
79  Tex.  13,  15  5.  IV.  Rep.  214.  Texas  &*  P. 
R.  Co.  V.  Thedens,  (Tex.  Civ.  App)  21  S. 
tV.  Rep.  1 32.— Following  Yoakum  v.  Selph, 
83  Tex..  607,  19  S.  W.  Rep.  145;  Texas  4 
P.  R.  Co  V.  Collins,  84  Tex.  122,  19  S.  W. 
Rep.  16$.— Houston  &*  T.  C.  R.  Co.  v.  Roberts, 
(Tex.)  ig  S.  W.  Rep.  512.  —  Following 
Turner  v.  Cross,  83  Tex.  218,  18  S.  W.  Rep. 
S78. 

74.  Individual  or  personal  liabil- 
ity.—It  receivers  act  in  good  faith,  but 
under  a  mistaken  view  of  their  powers,  they 
are  perhaps  not  liable  at  all;  but  if  they 
wilfully  and  corruptly  exceed  their  powers, 
they  are  liable  for  the  actual  damages  sus- 
tained by  their  conduct,  but  nothing  more. 
Stanton  v.  Alabama  &*  C.  R.  Co.,  2  Woods 
(U.S.)  106. 

A  receiver  is  personally  liable  to  persons 
sustaining  loss  or  injury  by  or  through  hia 


*See  also  Death,  etc..  150, 167;  note,  tji 
L.  R  A.  363. 


M 


!   '  f 


Wf^ 


1194 


RECrVERS,  75. 


Ifsi: 


own  neglect  or  misconduct ;  but  for  the 
neglect  or  misconduct  of  those  employed  by 
him,  he  is  not  personally  liable.  In  such 
case  he  must  be  sued  as  receiver,  and  the 
judgment  must  be  payable  out  of  the  funds 
in  his  hands  as  such.  Ca»ip  v.  Barney,  4 
Hun  {JV.   V.)  373.  6  T.&'C.  622. 

Where  the  property  of  a  railroad  company 
goes  into  the  hands  of  a  receiver,  which 
property  includes  a  hotel,  if  the  receiver 
employs  a  person  to  manage  the  hotel, 
without  any  order  of  court,  and  afterwards 
leases  it  to  the  manager,  he  is  personally 
liable  to  one  who  furnishes  supplies  to  the 
hotel  without  notice  of  the  lease.  Sayles  v. 
Jourdan,  2  N.  V.  Supp.  827,  50  Hun  604,  19 
A';  Y.  5.  R.  349;  affirmed  in  \2\  N.  Y.  685, 
mem.,  24  .V.  E.  Rep.  1098. 

While  the  receiver  of  a  railroad  may  be 
protected  from  an  action  at  law  in  respect 
to  the  property  in  the  possession  of  the 
court  or  in  his  hands  as  its  receiver,  or  from 
the  consequences  of  an  accident  occurring 
in  its  management,  he  is  responsible  indi- 
vidually for  the  careful  and  proper  manage- 
ment of  other  property,  the  management  of 
which  he  has  voluntarily  assumed,  and  over 
which  the  court  has  no  control.  Kain  v. 
Smith,  2  Am.  &*  Eng.  R.  Cas.  545,  80  N.  Y. 
458-;  reversing  1 1  Hun  552.— Distinguish- 
ing Cardot  v.  Barney,  63  N.  Y.  281.  Re- 
viewing Newell  V.  Smith,  49  Vt.  260;  Paige 
V.  Smith,  99  Mass.  395  ;  Klein  v.  Jewett,  26 
N.  J.  Eq.  474.— Quoted  in  Little  v.  Dusen- 
berry,  25  Am.  &  Eng.  R.  Cas.  632,  46  N.  J. 
L.  614 ;  Lyman  v.  Central  Vt.  R.  Co.,  59  Vt. 
167. 

A  person  appointed  by  the  governor  as 
receiver  of  a  railroad,  under  the  Internal 
Improvement  Acts,  is  a  public  agent,  and 
not  liable  individually  on  contracts  made  as 
such,  where  he  has  not  pledged  his  own 
credit.  Newman  v.  Davenport,  9  Baxt. 
{Tenn.)  538. 

VI.  PATMEHT  OF  OLAIMB.     PBIOBITT. 

76.  In  general.*— One  not  a  party  to 
an  action  cannot  apply  by  motion  for  pay- 
ment of  money  to  him  by  a  receiver  ap- 
pointed in  the  action,  even  it  his  claim  is 
made  in  respect  of  a  debt  properly  payable 
out  of  the  receiver's  funds.  BrockUbank  v. 
East  London  R.  Co.,  L.  R.  12  Ch.  D.  839. 

*  Payment  of  outstandini{  claims  at  time  of 
appointment  out  of  income  of  receiver,  see  note, 
17  Am.  &  Eno.  R.  Cas.  313. 


An  appeal  may  be  taken  from  a  decree  of 
a  chancery  court  ordering  the  receiver  of  an 
insolvent  railroad  company  to  pay  claims 
which  are  adjudged  to  be  chargeable  on 
funds  in  his  hands  arising  from  the  sale  of 
the  road.  Rome  &*  D.  R.  Co.  v.  Sibert,  97 
Ala.  393,  1 2  So.  Rep.  69. 

A  receiver  of  a  dissolved  corporation, 
beiilg  the  representative  of  the  debtor,  upon 
whom  the  duty  rests  to  scrutinize  the  claims 
against  the  estate,  and  reject  and  defend 
against  those  he  believes  to  be  unfounded 
or  illegal,  cannot  be  impartial  in  a  litigation 
between  himself  and  creditors  as  to  such 
claims ;  and  hence  a  statute  making  such 
receiver  the  referee  to  take  the  proof  of 
claims,  and  the  judge  to  determine  the 
materiality  of  evidence  offered  in  their  sup- 
port, is  in  violation  of  the  fundamental  rule, 
in  the  administration  of  justice,  that  no  man 
can  be  judge  in  his  own  case.  People  v. 
O'Brien,  36  Am.  <&*  Eng.  R.  Cas.  78,  1 1 1  .^V. 
Y.  I,  18  N.  E.  Rep.  692,  19  N.  Y.  S.  R.  173  ; 
reversing  10  N.  Y.  S.  R.  596,  45  Hun  519. 

A  provision  in  such  a  statute,  making 
proof  of  the  cost  of  the  obligation  the 
measure  of  the  creditor's  recovery,  instead 
of  the  liability  of  the  debtor  as  shown  by 
the  terms  of  the  contract,  and  requiring  the 
creditor  to  accept  payment  of  an  obligation 
before  maturity,  violates  the  provision  of 
the  constitution  against  impairing  the  obli- 
gation of  contracts.  People  v.  O'Brien,  36 
Am.  &•  Eng.  R.  Cas.  78.  iii  A'.  K  i.  18  .V. 
E.  Rep.  6^2,  \<)  N.  Y.  S.  R.  173;  reversing 
10  A'.   Y.  S.  R.  596.  45  Hun  519. 

A  change  of  mcumbent  in  the  office  of 
railroad  receiver  does  not  affect  the  status 
of  claims  against  the  property  arising  dur- 
ing the  receivership.  Ex  parte  Brown,  9 
Am.  <S-  Efig.  R.  Cas.  723,  15  So.  Car.  518.— 
Quoting  Davenport  v.  Alabama  &  C.  R. 
Co..  2  Woods  (U.  S.)  519. 

After  an  order  passed  constituting  the 
officers  of  a  company  receivers  of  the  road, 
the  company  continued  to  conduct  its  busi- 
ness as  before,  officers  were  annually  elected, 
and  no  separate  books  were  opened  by  them 
as  receivers.  During  this  time  a  note  was 
given  by  the  corporation  in  its  corporate 
name,  signed  by  the  president  and  treasurer 
as  such,  in  settlement  of  an  account  for  run- 
ning expenses.  Held,  that  the  existence  of 
such  corporation  was  not  interfered  with,  or 
its  officers  displaced,  and  that  the  note  so 
given  was  not  made  or  received  with  refer- 
ence to  the  receiver's  fund.    Ex  part*  Will- 


rom  a  decree  of 
e  receiver  of  an 
to  pay  claims 
chargeable  on 
rom  the  sale  of 
Co.  V.  Sibert,  97 

ed   corporation, 

he  debtor,  upon 

inize  the  claims 

ect  and  defend 

be  unfounded 

al  in  a  litigation 

ors  as  to  such 

e  making  such 

0  the   proof  of 

deterpiine  the 

■ed  in  their  sup- 

mdamental  rule, 

ice,  that  no  man 

case.    People  v. 

Cas.  78,  III  A^. 

!V.  Y.S.Ii.iJi; 

5,  45  Hun  519. 

statute,   making 

obligation   the 

ecovery,  instead 

or  as  shown  by 

nd  requiring  the 

of  an  obligation 

Lhe  provision   of 

pairing  the  obli- 

'e  V.  O'Brien,  36 

I  N.  Y.  I,  18  .V, 

,'.   173;  verier  sing 

t  519. 

in  the  office  of 
affect  the  status 
lerty  arising  dur- 
purfe  Brown,  9 
5  So.  Car.  5t8.— 
labama  &  C.  R. 

consstituting  the 
vers  of  the  road, 
conduct  its  busi- 
annually  elected, 
;  opened  by  them 
time  a  note  was 
in  its  corporate 
:nt  and  treasurer 
account  for  run- 
the  existence  of 
iterfered  with,  or 
:hat  the  note  so 
eived  with  refer- 
Expart*  tVili- 


RECEIVERS,  70,  77. 


1195 


tarns,  12  Am.  &*  Eng.   K.  Cas.  423,  \7  So. 
Car.  396. 

If  the  account  was  properly  chargeable 
against  the  receiver's  fund,  it  was  a  mere 
equity,  which  did  not  attach  to  the  note 
given  by  the  corporation  and  to  the  collat- 
erals intended  to  secure  it.  Ex  parte  IVill- 
tains,  12  Am.  &*  Eng.  R.  Cas.  425,  17  So. 
Car.  396. 

A  resolution  of  directors,  providing  for  an 
indemnifying  bond  to  a  receiver,  enures  to 
the  benefit  of  any  one  contemplated  by  it, 
having  a  just  debt  or  claim  against  the  re- 
ceiver as  such,  or  personally.  J^yan  v.  Hays, 
23  Am.  &*  Eng.  R.  Cas.  501,  62  Tex.  42. 

7G.  Operating  expenses  a  first 
charge  on  income  or  earuings.*— 
Where  a  railroad  is  mortgaged  for  the 
benefit  of  bondholders,  with  a  provision 
that  in  case  of  default  the  mortgage  trustee 
shall  take  charge  of  the  road  and  operate 
it.  but  instead  a  receiver  is  appointed  in  r; 
suit  in  which  the  trustee  is  a  party,  t'u 
bondholders  cannot  object  to  operating  ex- 
penses being  made  a  first  charge  on  the 
road,  where  the  trustee  would  of  necessity 
have  incurred  the  same  expense  if  he  had 
operated  the  road.  Union  Trust  Co  v.  ////- 
nois  Midland  R.  Co.,  25  Am.  &*  Eng.  R.  Cas, 
560,  117  U.  S.  434.  6  Sup.  Ct.  Rep.  809. 

Debts  contracted  by  a  receiver  for  ordi- 
nary expenses  of  operating  a  road  are  en- 
\\\.m\  to  priority,  to  be  paid  out  of  the  in- 
come of  the  road  if  sufficient ;  if  not,  then 
they  become  a  first  charge  upon  the  corpus 
of  the  property.  Union  Trust  Co.  v.  Illinois 
Midland  R.  Co.,  2^  Am.  6-  Eng.  R.  Cas.  560, 
117  U.  S.  434.  6  Sup.  Ct.  Rep.  809. 

Where  a  receiver  is  appointed  at  the  in- 
stance of  mortgage  bondholders,  the  pro- 
ceeds of  the  business  must  be  applied  first 
to  the  charges  of  administration  and  then 
to  the  discharge  of  the  mortgage  debts. 
Neither  the  company  nor  any  one  claiming 
under  it  can  demand  any  of  the  income  as 
against  the  prior  liens.  NortA  Carolina  R. 
Co.  V.  Drew,  3  IVoods  (U.  S.)  691. 

Ordinarily,  mortgage  debts  are  entitled  to 
payment  over  all  other  subsequent  claims ; 
but  where  the  corporation  becomes  insol- 


•Rule  In  Fosdick  v.  Schall,  99  U.  S.  235. 
Payment  of  current  expenses  from  earnings  dur- 
ing receivership,  see  note,  38  Am  &  Eno.  R. 
Cas  571. 

Paying  operating  expenses  prior  to  receiver's 
appointment,  time  when  incurred,  see  38  Am  & 
Eno.  R.  Cas.  573,  absir.;  Id.  575. 


vent  and  the  court  is  asked  to  appoint  a 
receiver,  in  doing  so  it  may  impose  such 
conditions  as  may  seem  just,  and  may  re- 
quire the  payment  of  cut.'jnt  expenses 
from  the  earnings  of  the  road.  United 
States  Trust  Co.  v.  Ne'.v  York,  IV.  S.  <S-  B. 
R.  Co.,  25  Fed.  Rip.  800.  — APPLYING  Huide- 
koper  V.  Hinckley  Locomotive  Works,  99 
U.  S.  260.  Recognizing  Fosdick  v.  Schall. 
99  U.  S.  235;  Burnham  v.  Bowen,  11 1  U..  S. 
776,  4  Sup.  Ct.  Rep.  675. 

A  receiver's  expenditures,  made  under  the 
direction  of  the  court,  for  preserving,  com- 
pleting, and  operating  a  railroad,  may  be 
made  a  preferred  claim  against  the  road. 
Hale  V.  Nashua  <S-  L.  R.  Co.,  60  N.  H.  333. 

Money,  necessary  for  the  proper  and  suc- 
cessful management  of  a  railroad,  borrowed 
by  the  officers  of  the  road  while  acting  as 
receivers,  giving  them  power  "to  continue 
in  the  possession  and  management  of  the 
property,"  should  be  repaid  out  of  the  fund 
in  court  realized  from  the  income  of  the 
road  while  in  the  receivers'  hands.  Ex 
parte  Carolina  Nat.  Bank,  18  So.  Car.  289. 
— Quoting  Cowdrey  v.  Galveston,  H.  &  H. 
R.  Co.,  I  Woods  (U.  S.)  331. 

When  a  receiver  has  been  appointed  under 
the  Railway  Companies  Act,  1867,  §  4,  the 
moneys  received  by  him  must  be  applied 
first  in  providing  for  the  "working  expenses" 
of  the  railway,  even  if  by  the  company's 
special  act  a  fixed  dividend  on  shares  and 
the  interest  on  debentures,  forming  the 
capital  raised  for  a  particular  undertaking 
of  the  company,  are  charged  on  the  gross 
receipts  of  that  undertaking.  In  re  Eastern 
6-  M.  R.  Co.,  45  Am.  <S-  Eng.  R.  Cas.  71,  /.. 
R.  45  Ch.  D.  367.— Applying  In  re  Corn- 
wall Minerals  R.  Co.,  48  L.  T.  41.  Dis- 
tinguishing Gardner  v.  London,  C.  &  D. 
R.  Co.,  L.  R.  2  Ch.  201. 

By  virtue  of  a  special  act  of  a  company, 
a  certain  loop  line  was  constituted  a  "  sepa- 
rate undertaking,"  and  the  capital  raised  for 
the  purpose  of  constructing  it  was  consti- 
tuted "  separate  capital."  A  receiver  having 
been  appomted  under  the  above  statute— 
held,  that  the  dividend  upon,  and  interest  in 
respect  ol,  the  separate  capital  were  not 
'  working  expenses  "  or "  proper  outgoings," 
and  were  to  be  postponed  to  working  ex- 
penses. In  re  Eastern  &*  M.  R.  Co.,  45  Am. 
&*  Eng.  R.  Cas.  71.  L.  R.  45  Ch.  D.  367. 

77.  Priority  anions  niortgageH.— 
After  a  receiver  had  been  appointed  for  the 
benefit  of  third,  fourth,  and  fifth  mortgage 


1196 


RECEIVERS.  78-82. 


i    ! 


iir 


bondholders,  the  fourth  class  moved  that 
the  receiver  be  directed  to  pay  interest  out 
of  the  receipts  of  tiie  road  on  their  bonds 
in  preference  to  all  others,  on  the  ground 
that  their  bonds  were  so  drawn  that  the 
principal  would  fall  due  upon  a  failure  to 
pay  interest.  NeM,  that  the  motion  was 
properly  denied.  Brown  v.  New  York  6- 
E.  A'.  Co.,  22  How.  Pr.  (N.  K.)  45'- 

78.  Claims  for  construction.  *  —  A 
decree  was  entered  by  consent  of  some  of 
the  bondholders  directing  a  receiver  of  ? 
road  to  extend  the  line  at  a  certain  stated 
amount,  to  be  paid  out  of  the  surplus  income, 
the  extension  to  stand  pledged  for  payment. 
The  extension  cost  more  than  the  specified 
amount.  Subsequently  the  order  was  re- 
versed by  the  supreme  court,  and  the  entire 
road  was  sold.  Held,  that  the  builders  of 
the  road  should  be  paid  a  pro  rata  share  of 
the  price  that  the  road  sold  for,  based  upon 
the  value  of  the  extension  as  compared  with 
the  whole  value  of  the  road.  Hand  v.  Sa- 
vannah 6*  C.  Ji.  Co.,  17  So.  Car.  219. 

Debts  incurred  by  a  railroad  company  for 
construction  of  a  new  road  within  six  months 
before  the  company's  insolvency  and  the  ap- 
pointment of  a  receiver  are  entitled  to  pri- 
ority in  payment  out  of  the  net  earnings  of 
the  road  while  in  the  hands  of  the  receiver 
over  mortgages  executed  when  the  road  was 
unfinished,  and  which  show  that  it  was  con 
tern  plated  that  the  road  should  be  com- 
pleted, and  which  attach  to  new  road  as  fast 
as  finished.  Afcllhenny  v.  Binz,  80  Tex.  1, 
13  S.  W.  Rep.  655.  —  Reviewing  and 
QUOTING  Fosdick  V.  Schall,  99  U.  S.  235. 

70.  Claims  for  damages  to  realty.— 
A  receiver  appointed  by  a  federal  court  may 
be  sued  for  a  mere  naked  trespass  to  real 
property.  Ft,  Wayne,  M.  &*  C.  R.  Co.  v. 
Mellett,  17  Am.  <S-  Eng.  R.  Cas.  293. 92  Ind. 

535- 

A  claim  by  an  abutting  owner  against  a 
company  for  damages  for  buildmg  and 
maintaming  a  road  m  the  street  in  front  of 
his  property  is  of  such  a  kind  or  nature  as 
to  be  entitled  to  payment  out  of  the  funds 
m  the  hands  of  a  receiver  in  preference  to 
tlie  claims  of  mortgage  creditors ;  and  the 
abuttmg  owner  did  not  waive  such  claim  by 
allowing  the  construction  of  the  road  before 
his  damages  were  paid.    Mercantile  Trust 

*  When  debts  incurred  for  construction  of  road 
before  insolvency  entitled  to  priority  of  payment 
out  ot  net  earnings,  see  4s  Am.  St  Eng.  R.  Cas. 
94,  abUr 


Co.  v.  Pittsburgh  <S-  W.  R.  Co.,  29  Fed. 
Rep.  732.— Applying  Western  Pa.  R.  Co. 
V.  Johnston,  59  Pa.  St.  290. 

80.  Claims  for  labor  and  material. 
—The  exercise  of  the  equitable  discretion 
of  a  court  of  equity  may  require  the  re- 
ceiver of  a  railroad  to  pay  claims  of  opera- 
tives and  supplymen,  due  at  the  time  of  his 
appointment,  and  may  require  him  to  hold 
the  property  subject  to  such  claims.  Turner 
V.  Indianapolis,  B.  «&*  IV.  R.   Co.,  8  Biss, 

In  passing  upon  such  claims  and  in  fixing 
a  time  in  which  they  will  be  ordered  paid, 
a  federal  court  will  adopt  by  analogy  the 
state  statute  of  limitations  relating  to  the 
claims  presented.  Turner  v.  Indianapolis, 
B.  <&-  W.  R.  Co.,  8 Biss.  (U.  S.)  315. 

If  at  the  time  a  receiver  was  appointed 
the  company  was  indebted  for  services  ren- 
dered or  materials  furnished,  the  creditors 
are  entitled  to  be  paid  out  of  the  net  reve- 
nues of  the  road  in  preference  to  the  mort- 
gage bondholders ;  and  if  the  net  revenues 
have  been  applied  to  pay  interest  to  these 
bondholders,  or  to  the  repair,  improve- 
ment, or  extending  of  the  road,  upon  a  sale 
of  the  road  the  proceeds  of  the  sale,  to  the 
extent  of  said  net  revenues,  are  to  be  ap- 
plied to  the  payment  of  these  creditors. 
Williamson  v.  Washington  City,  V.  M.  &* 
G.  S.  R.  Co.,  1  Am.  &•  Eng.  R.  Cas.  498,  33 
Graft.  (Va.)  624.— QUOTING  Fosdick  v. 
Schall,  99  U.  S.  235 ;  Owen  v.  Homan,  4 
H.  L.  Cas.  997.— Followed  in  Frayser  v. 
Richmond  &  A.  R.  Co.,  25  Am.  &  Eng.  R. 
Cas.  597.  81  Va.  388. 

81.  Claims  for  loss  of,  or  damage 
to,  property  carried.— The  earnings  of 
a  railroad  in  the  hands  of  a  receiver  are 
chargeable  with  the  value  of  goods  lost  in 
transportation,  and  with  damages  done  to 
property  during  his  management.  Cowdrey 
V.  Galveston,  H.  **  H.  R.  Co.,  93  U.  S.  352. 

Receivers  may  be  held  responsible  for  the 
damage  actually  sustained  by  a  shipper  of 
freight,  through  the  negligence  of  the  re- 
ceiver's agents  and  employes,  in  any  case 
in  which  the  company  cnuld  be  so  held. 
Melendy  v.  Barbour,  25  Am.  &*  Eng.  R.  Cas. 
622,  78  Va.  544. 

82.  Claims  for  personal  ii^nries. 
— Receivers  of  a  railroad  are  not  subject  to 
suit  in  their  official  capacity  for  a  personal 
injury  to  one  of  their  employ6s  in  the  same 
service.     Henderson  v.  Walker,  55  Ga.  481. 

The  receiver  of  a  railroad  company  is 


Co.,  29  Fed. 
rn  Pa.  R.  Co. 

|id  material. 

able  discretion 
j-equire  the  re- 
laims  of  opera<- 
the  time  of  his 
Ire  hitn  to  hold 
llaims.  Turner 
Co.,  8  Biss. 

s  and  infixing 
ordered  paid, 
•y  analogy  the 
[relating  to  the 
■.  Indianapolis, 

s.)  315. 

was  appointed 
or  services  ren- 
d,  the  creditors 
f  the  net  reve- 
re to  the  mort- 
le  net  revenues 
iterest  to  these 
epair,  improve- 

lad,  upon  a  sale 
the  sale,  to  the 

I,  a  re  to  be  ap- 
hese  creditors. 
City,  V.  M.  &* 

.  R.  Cas.  498,  33 

NO   Fosdick    V. 

n  V.  Homan,  4 

>  IN  Frayser  v. 

Am.  &  Eng.  R. 

r,  or  damage 
rhe  earnings  of 
a  receiver  are 
[  goods  lost  in 
mages  done  to 
nent.  Cowdrey 
>.,  93  I/.  S.  352. 
}onsibIe  for  the 
ly  a  shipper  of 
nee  of  the  re- 
;s,  in  any  case 
d  be  so  held. 
S-  Eng-.  A\  Cas. 

lal  injuries. 

not  subject  to 
for  a  personal 
6s  in  the  same 
er,  SS  Ga.  481. 
d  company  is 


RECEIVERS,  83,  84. 


1197 


liable  for  injuries  to  passengfers  during  the 
receivership,  and  the  claim  s  are  to  be  paid 
out  of  the  income  of  the  road.  Ex  parte 
Brown,  9  Am.  &*  Eng.  R.  Cas.  723,  15  So. 
Car.  518. 

Passengers  over  a  railroad  and  employes 
of  tlie  company,  when  entitled  to  damages 
for  injuries  received  while  the  railroad  is 
operated  by  a  receiver,  should  be  paid  out 
of  the  fund  in  court  realized  trom  the  earn- 
ings of  the  road  during  the  receivership,  in 
preference  to  mortgage  or  other  debts  ex- 
isting at  the  time  of  action  brought.  Ex 
parte  Brown,  9  Am.  &»  Eng.  R.  Cas.  723,  1 5 
So.  Car.  518. 

Technically  the  relation  of  master  and 
servant  does  not  exifit  between  a  railway 
company  and  a  receiver,  when  the  compa- 
ny's property  is  placed  in  his  possession, 
and  he  is  required  to  discharge  the  duty  of 
a  common  carrier ;  bat  the  profits  or  income 
of  the  property,  while  in  his  hands,  are 
liable  for  injuries  resulting  from  the  neg- 
ligence of  the  receiver  or  of  his  employes. 
Ryan  v.  Hays,  23  Am.  &»  Eng.  R.  Cas.  501, 
62  Tex.  42. 

If  current  expenses  are  invested  in  better- 
ments of  the  road,  then  such  claim  is  enti- 
tled to  satisfaction  out  of  proceeds  of  sale 
of  the  road  to  satisfy  a  mortgage,  to  the 
extent  of  the  value  of  such  betterments. 
Ryan  v.  Hays,  23  Am.  &*  Eng.  R.  Cas.  501, 
62  Tex.  42. 

Where  a  receiver  has  been  discharged 
and  the  propeny  restored  to  the  control  of 
the  railroad  company,  the  company  is  liable 
upon  a  cause  of  action  which  arose  against 
the  receiver  in  connection  with  his  man- 
agement of  the  road— e.  g.,  a  claim  for 
damages  for  injuries  to  an  employ^— if  the 
earnings  during  the  receivership  were  suf- 
ficient to  meet  such  claim,  but  were  expend- 
ed in  improvements  of  which  the  company, 
after  the  receiver's  discharge,  has  received 
the  benefit.  Texas  6-  P.  R.  Co.  v.  Johnson, 
42  Am.  &*  Eng.  R.  Cas.  7,  76  Tex.  421,  13 
S.  W.  Rep.  463. 

83.  Claims  for  rent.— Where  receiv- 
ers are  appointed  to  operate  an  entire  sys- 
tem, including  certain  leased  roads,  the 
mere  taking  of  possession  of  the  leased 
lines  by  the  receivers  does  not  make  them 
assignees  of  the  leases,  so  as  to  require  them 
to  pay  the  rent  due  in  preference  to  the 
mortgage  debts.  Central  Trust  Co.  v. 
Waiash,  St.  L.  &*  P.  R.  Co.,  34  Fed.  Rep. 
259. — Applying   Bridgewater  Engineering 


Co.,  L.  R.  laCh.  D.  181.  Following  Wood- 
ruff V.  Erie  R.  Co.,  93  N.  Y.  609;  Milten- 
bcrger  v.  Logansport,  C.  &  S.  W.  R.  Co., 
106  U.  S.  286,  I  Sup.  Ct.  Rep,  140.— Criti- 
cised in  Central  Trust  Co.  v.  Wabash,  St. 
L.  &  P.  R.  Co..  46  Am.  &  Eng.  R.  Cas.  301, 
46  Fed.  Rep.  26. 

A  court  of  equity  in  appointing  a  receiver 
may  require  the  payment  of  expenses  of 
operating  and  preserving  the  road  in  pref- 
erence to  mortgage  liens  ;  but  the  rule  does 
not  go  so  far  as  to  give  priority  to  the  rental 
of  branch  lines  held  under  leases,  and 
which  are  unprofitable,  where  there  is  noth- 
ing to  show  that  earnings  which  were  ap- 
plicable to  the  payment  of  rent  hnd  been 
diverted  to  other  purposes.  Quincy,  At.  &* 
P.  R.  Co.  V.  Humphreys,  28  Abb.  N.  Cas. 
(N.  Y.)  332,  145  U.  S.  82,  12  Sup.  Ct.  Rep. 
787.— Quoting  Morgan's  L.  &  T.  R.  &  S. 
Co.  V.  Texas  C.  R.  Co.,  137  U.  S.  171  ;  Fos- 
dick V.  Schall.  99  U.  S.  235 ;  Wallace  v. 
Loomis,  97  U.  S.  146. 

Where  it  appears  that  one  of  the  leased 
lines  is  paying  more  than  operating  ex- 
penses, and  the  court  orders  that  the  rental 
thereof  be  paid  out  of  the  profits,  the  lessor 
has  a  right  to  rely  upon  the  order,  and  to 
require  the  receivers  to  pay  the  rent  from 
the  time  of  the  order.  Central  Trust  Co.  v. 
Wabas/t,  St.  L.  6-  P.  R.  Co.,  34  Fed.  Rep. 
259. 

Rent  for  an  easement  of  running  trains 
over  land  is  part  of  the  working  expenses 
of  a  railway  in  the  hands  of  a  receiver 
which  he  is  bound  to  pay  out  of  the  funds 
in  his  hands  before  dividing  anything  among 
the  holders  of  debenture  stock.  Great 
Eastern  R.  Co.  v.  East  London  R.  Co.,  44  L. 

r.  903. 

84.  Claims  for  roIIiiiGT  stoclc.*— A 

vendor  of  cars  and  engines,  retaining  title 
as  security,  before  a  receiver  of  the  road  is 
appointed,  is  entitled  to  be  paid  by  the  re- 
ceiver tor  their  use,  and  to  exhaust  his  lien 
thereon,  but  as  to  the  balance  of  his  debt  he 
is  only  a  general  creditor.  Fidelity  I.,  T. 
<S-  S.  D.  Co.  v.  Shenandoah  Valley  R.  Co.,  38 
Am.  &*  Eng.  R.  Cas.  559,86  Va.  r,  13  Va. 
L.  J.  309.  9  S.  E.  Rep.  759- 

A  company  purchased  rolling  stock, 
agreeing  to  pay  for  it  in  instalments,  the 
stock  not    to  become  the   property  of   the 

•When  price  of  locomotives  sold  to  a  com- 
pany is  not  entitled  to  priority  where  road  is 
subsequently  placed  in  hnnds  of  a  receiver,  see 
45  Am.  &  Eng.  R.  Cas.  (j3.  a/'str. 


\w 


1198 


RECEIVERS,  85-87. 


-f' 


company  until  complete  payment,  and  the 
vendor  having  the  right  to  seize  the  stock 
on  default  ir  payment  of  any  one  instalment. 
Ne/t/,  that  the  term  "  working  expenses " 
included  such  instalments  as  they  became 
due,  and  also  overdue  instalments.  In  re 
Eastern  &•  M.  R.  Co.,  45  Am.SfEng.  R.  Cas. 
71.  L.  R.  45  CA.  D.  367. 

85.  ClaiiiiH  fur  supplies,  repairs, 
etc. — The  court  will  not  order  the  payment 
out  of  the  funds  in  the  hands  of  a  receiver 
of  a  claim  for  rails  and  supplies  furnished 
to  the  company  before  the  receiver  was 
appointed,  where  they  were  furnished  on 
the  credit  of  the  company.  Skiddy  v.  At- 
lantic, M.  (S-  O.  R.  Co.,  3  Hughes  (U.  S.) 
320. 

An  order  directing  a  receiver  "  to  pay  the 
amounts  due  and  maturing  for  materials 
and  supplies  about  the  operation  and  for 
the  use  of  said  road  "  does  not  include  the 
renewal  of  a  promissory  note  originally 
given  by  the  company  for  re-rolling  iron 
for  the  use  of  the  road.  Brown  v.  New 
York  <&-  E.  R.  Co.,  19  How.  Pr.  (_N.  Y.)  84. 

Where  the  receiver  and  the  bondholders 
enter  into  an  agreement  that  the  claim  of 
a  third  party  shall  have  priority  over  all 
claims  against  the  railroad  except  for  oper- 
ating expenses,  this  will  not  preclude  the 
court  from  allowing  expenditures  by  the 
receiver  for  repairs  and  improvements,  since 
all  necessary  repairs  and  improvements  are 
to  be  deducted  from  the  income  of  the  road 
in  order  to  obtain  the  net  earnings.  State 
V.  East  Line  &»  R.  R.  R.  Co.,  ( Tex.)  48  Am. 
6-  Eng.  R.  Cas.  656. 

80.  Counsel  fees.— An  order  appoin'- 
ing  a  receiver  and  giving  priority  to  claim, 
for  "  labor  in  operation  of  the  road  "  in 
eludes  a  claim  for  necessary  services  o' 
counsel  to  the  receiver.  liayliss  v.  La^a- 
yette,  M.  &*  B.  R.  Co.,  9  Biss.  ([/.  S.)  oj. 

A  receiver  employed  attorneys  who  suc- 
ceeded in  reducing  to  a  very  considerable 
amount  certain  claims  of  lien-holders,  but 
the  property  was  sold  subject  to  the  lien 
and  the  receiver  discharged.  The  purchas- 
ers recognized  the  claim  of  the  attorneys 
and  made  a  partial  payment  thereon ;  but 
subsequently  another  foreclosure  suit  was 
begun  on  a  lien  created  by  the  purchasers, 
and  a  receiver  appointed.  He/d,  that  the 
attorneys  had  no  claim  on  the  funds  in  the 
hands  of  the  new  receivers ;  that  the  recog- 
nition of  the  claim  by  the  purchasers 
amounted  to  nothing  more  than  a  mere 


contract,  which  was  not  entitled  to  priority 
over  liens  created  by  the  purchasers.  Bound 
V.  Sout/t  Carolina  R.  Co.,  51  Fed.  Rep.  58. 

And  the  fact  that  the  services  of  the  at- 
torneys resulted  in  much  reducing  the  lien, 
and  thereby  incidentally  benefiting  subse- 
quent lien-holders,  would  not  give  them 
priority.  Bound  v.  South  Carolina  R.  Co.,  51 
fed.  Rep.  58.— Quoting  Hand  v.  Savannah 
&C.  R.  Co.,  21  So.  Car.  162. 

One  who  has  to  apply  to  the  court  for  an 
order  directing  the  receivers  to  pay  a  claim 
justly  due  from  a  railroad  company  cannot 
claim  compensation  for  his  attorney's  fees, 
where  tiie  services  do  not  result  in  saving 
or  adding  anything  to  the  general  fund. 
Central  Trust  Co.  v.  Valley  R.  Co.,  55  Fed. 
Rep.  903.  —  Distinguishing  Investment 
Co.  of  Phila.  V.  Ohio  &  N.  W.  R.  Co.,  46 
Fed.  Rep.  696 ;  Easton  v.  Houston  &  T.  C. 
R.  Co.,  40  Fed.  Rep.  189. 

An  order  appointing  a  receiver  directed 
him  to  pay  debts  "  owing  to  the  laborers 
and  employes  "  of  the  company  "  for  labor 
and  services  actually  done  in  connection 
with  that  company's  railways."  Held,  that 
it  included  a  claim  of  counsel  for  profes- 
sional services  rendered  by  him  on  employ- 
ment of  the  company  in  litigations  relating 
to  the  railway.  Gurney  v.  Atlantic  &*  G. 
W.  R.  Co.,  58  A^.  Y.  358,  9  Am.  Ry.  Rep. 
520;  reversing  2  T.  &»  C.  446.— Disap- 
proved IN  Louisville,  E.  &  St.  L.  R.  Co.  v. 
Wilson,  138  U.  S.  501. 

87.  Ju(I|;nicnt8  and  executions<— 
Tolls  received  on  a  railroad  after  a  judgment 
rendered  against  the  company,  and  the  ap- 
pointment of  a  sequestrator,  are  not  bound 
by  such  judgment  so  as  to  give  it  a  prefer- 
ence of  payment  out  r.f  them.  Leedom  v. 
Plymouth  R.  Co.,  5  Watts  &*  S.  (Pa.)  265. 

Claims  for  damages  sued  against  a  corpo- 
ration itself  while  in  the  hands  of  receivers 
and  reduced  to  judgment  (in  one  case  by 
consent  of  the  officers  of  the  corporation, 
who  were  also  the  receivers),  and  afterwards 
presented  and  allowed  as  original  claims 
against  the  receiver's  fund,  are  not  entitled, 
as  against  that  fund,  to  interest,  either  from 
the  date  of  the  judgments  or  from  the  or- 
der giving  to  them  the  right  of  payment, 
such  order  not  having  fixed  the  amounts 
due.  Ex  parte  Brown,  17  Am.  S*  Eng.  R. 
Cas.  302,  18  So.  Car.  87. 

Between  the  appointment  of  a  receiverand 
the  execution  of  his  bond,  a  /f.  /a.  against 
the  company   was  placed  in  the  sheriff's 


RECEIVERS,  88-91. 


1199 


ed  to  priority 
asers.  Bound 
id.  Rep.  s8. 
:es  of  tiie  at- 
cing  the  lien, 
!fiting  subse- 
give  tJiem 
ina  R.  Co.,i\ 
V.  Savannali 

court  for  an 

0  pay  a  claim 
pany  cannot 

torneys  fees, 
ult  in  saving 
:eneral  fund. 
'.  Co.,  55  Fed. 
Investment 
N.  R.  Co..  46 
iston  &  T.  C. 

iver  directed 

the  laborers 

ly  "  for  labor 

connection 

Held,  that 

1  for  profes- 
n  on  employ- 
Jons  relating 
'lantt'c  6-  c;. 
\m.  Ry.  Rep. 
446.— DlSAP- 

L.  R.  Co.  V. 

editions.— 

r  a  judgment 
,  and  the  ap- 
re  not  bound 
e  it  a  prefer- 
.  Leedom  v. 
{Pa.)  265. 
inst  a  corpo- 
of  receivers 
one  case  by 
corporation, 
id  afterwards 
ginal  claims 
not  entitled, 
;,  either  from 
from  the  or- 
of  payment, 
he  amounts 
.  &*  E»g.  R. 

receiver  and 
.  fa.  against 
the  sheriff's 


hands;  there  were  funds  in  bank  to  the 
credit  of  the  suit,  representing  the  earnings 
of  the  road.  Held,  that  the  fi.  fa.  creditor 
was  entitled  to  have  the  funds  applied  to 
satisfy  his  debt  in  preference  to  the  trust 
creditors.  Frayser  v.  Richmond  6-  A.  R.  Co., 
25  Am.  &*Ettg.R.  Cas.  597.  Si  Va.  388.— 
Quoting  Oilman  t/.  Illinois  &  M.  Tel.  Co., 
91  U.  S.  603 ;  American  Bridge  Co.  v. 
Heidelbach.  94  U.  S.  798. 

88.  Statutory  or  specific  liens.— 
Where  a  federal  court  has  appointed  a  re- 
ceiver for  a  railroad,  and  it  appears  that 
there  are  many  claims  that  are  being  filed, 
some  of  which  may  rest  on  statutory  liens, 
conditioned  on  the  notice  and  proceedings 
required  by  statute,  in  order  to  avoid  ex- 
pense and  delay,  the  court  will  allow  all 
persons  claiming  statutory  liens  to  file  the 
same  with  the  court,  with  the  same  force 
and  effect  as  if  filed  in  the  state  courts ; 
and  where  demands  are  presented  from 
other  states,  in  which  no  statutory  lien 
tlierefor  exists,  they  will  be  entitled  to  the 
same  status,  so  that  statutory  and  equitable 
liens  may  rest  on  a  like  basis.  Blair  v.  St. 
Louis,  H.  <S-  K.  R.  Co.,  17  Am.  &*  En^.  R. 
Cas.  337,  19  Fed.  Rep.  861. 

A  creditor  holding  the  specific  right  to  be 
paid  out  of  the  earnings  of  a  railway,  or 
liaving  a  lien  on  the  property  in  the  hands 
of  a  receiver,  may  proceed  by  suit  against 
the  receiver.  Howe  v.  Harding,  42  Am.  &* 
En^.  R.  Cas.  i,  76  Tex.  17, 13  5.  IV.  Rep.  41. 

89.  Taxes.— The  amount  due  for  a  state 
tax  upon  the  franchise  of  a  corporation, 
which  'is  in  the  hands  of  a  receiver,  takes 
priority  of  claim  upon  the  funds  in  the  re- 
ceiver's hands  overclaims  of  the  bondhold- 
ers of  the  corporation.  Central  Trust  Co. 
V.  Xew  York  City  6-  N.  R.  Co.,  35  Am.  6- 
Eug.  R.  Cas.  9,  no  A^.  K  250,  18  A^.  Y.  S. 
R.  30.  1 8  A'^.  E.  Rep.  92 ;  reversing  47  Hun 
587,  15  A^.  Y.  S.  R.  178.— Applying  Union 
Trust  Co.  V.  Illinois  Midland  R.  Co.,  117  U. 
S.  434;  In  re  Columbian  Ins.  Co.,  3  Abb. 
App.  Dec.  239. 

90.  Unlitiiiidated  demands.— Claims 
against  a  receiver,  for  property  destroyed  by 
fire  set  by  sparks  from  defective  locomotives, 
prior  to  the  appointment  of  the  receiver  in 
foreclosure  proceedings,  but  subsequent  to 
default  of  the  company  in  the  payment  of 
the  mortgage  debt,  cannot  be  allowed. 
Hites  V.  Case,  9  Biss.  {U.  S.)  549,  14  Fed. 
Rep.  141. 

Such  claims  ao  not  come  under  the  head 


of  "  operating  expenses  "  to  be  paid  from 
the  earnings  of  the  road,  Hiles  v.  Case,  9 
Biss.  (U.  S.)  549,  14  Fed.  Rep.  141.  — Re- 
viewing Hale  V.  Frost,  99  U.  S.  389. 

The  fact  that  the  company  continued  to 
operate  the  road,  after  default  in  the  pay- 
ment of  the  mortgage  debt,  did  not  consti- 
tute it  the  agent  of  the  bondholders.  Hiles 
V.  Case,  9  Biss.  (U.S.)  549,  14  Fed.  Rep.  141. 

If  there  are  any  equities  in  favor  of  a 
railway  company  growing  out  of  the  fact 
that  liabilitiesof  the  receiver  for  unadjusted 
claims  exceed  the  amount  expended  in  bet- 
terments, they  should  be  pleaded.  If  not 
pleaded,  the  refusal  to  charge  upon  the 
subject  is  not  error.  Texas  &»  P.  R.  Co.  v. 
Baihy,  83  Tex.  19,  18  5.  fT./iV/.  481.- Fol- 
lowing Texas  &  P.  R.  Co.  v.  Johnson,  76 
Tex.  425. 

Nor  should  undetermined  suits  for  un- 
liquidated demands  be  computed  as  claims 
for  which  the  receiver  is  liable,  if  such  in- 
quiry should  be  gone  into  upon  proper 
pleadings.  Texas  <&*  P.  R.  Co.  v.  Bailey,  83 
Tex.  19,  1 8  5.  W.  Rep.^Si. 

91.  Unsecured  debts.— With  the  ex- 
ception of  money  used  to  pay  taxes,  there 
should  be  no  priority  of  liens  as  between 
debts  incurred,  by  the  receiver  of  a  railroad, 
whether  the  debt  be  evidenced  by  a  receiv- 
er's certificate  or  not.  Union  Trust  Co.  v. 
Illinois  Midland  R.  Co.,  25  Am.  <S-  Eng.  R. 
Cas.  560.  117  U.  S.  434,  6  Sup.  Ct.  Rep.  809. 
—Applied  in  Central  Trust  Co.  v.  New 
York  City  &  N.  R.  Co..  no  N.  Y.  250. 

If  the  trustees  under  a  mortgage  to  secure 
bondholders  fail  to  make  any  claim  in  pro- 
ceedings for  the  appointment  of  a  receiver, 
to  the  funds  in  the  hands  of  such  receiver, 
any  surplus  arising  from  the  receiver's 
management  is  payable,  not  to  such  trus- 
tees, but  to  an  unsecured  creditor  at  whose 
suit  the  receiver  was  appointed.  Sage  v. 
Memphis  <S-  L.  R.  R.  Co.,  35  Am.  &-  Eng. 
R.  Cas.  40,  125  U.  S.  361,  8  Sup.  Ct.  Rep. 
887. 

If  such  creditor  has  acquired  his  claim  by 
the  acceptance  of  an  offer  to  purchase  a 
promissory  note,  and  after  it  had  been  trans- 
ferred by  indorsement,  he  is  under  a  legal 
obligation  to  pay  what  he  agreed  upon  as 
the  purchase  price.  The  fact  that  such 
price  has  not  been  paid  does  not  in  any  way 
affect  his  claim  upon  the  funds  in  the  hands 
of  the  receiver.  Sage  v.  Memphis  &*  L.  R. 
R.  Co.,  35  Am.  6-  Eng.  R.  Cas.  ^o,  125  U. 
S.  361,  8  Sup.  Ct.  Rep.  887. 


1200 


RECEIVERS,  92-04. 


The  fact  that  a  railroad  company  renders 
a  mortgage  invalid  by  an  overissue  of  stock, 
does  not  destroy  the  debt  attempted  to  be 
secured  by  the  mortgage.  The  debt  remains, 
and  may  be  considered  in  determining 
whether  the  road  is  insolvent,  and  whether 
a  receiver  should  be  appointed.  Olmsted 
V.  Rochester  6-  P.  li.  Co.,  8  A^.  V.  S.  /i.  856, 
44  //««  627;  affirmed  in  106  A':  Y.  673, 
mem.,  13  N.  E.  Rep,  937,  w  N  Y,  S.  R, 
881.  mem. 

02.  Wages  of  employes. -A  receiver 
was  directed  to  pay  the  wages  of  employes 
eight  months  overdue,  as  to  all  such  as  were 
retained  by  him  ;  but  petitions  of  assignees 
of  other  overdue  wages  were  rejected. 
Skiddy  v.  Atlantic,  At,  &»  O.  R  Co..  3 
Hughes  ( U,  S.)  320. 

An  order  of  court  directing  a  receiver  to 
pay  wages  due  to  "employes  '  includes 
compensation  tor  services  of  an  attorney 
employed  at  a  fixed  salary  per  month  Fi- 
nance Co.  of  Pa.  V.  Charleston.  C.  6*  C.  R. 
Co.,  52  Fed.  Rep.  526 

Back  pay  due  employes  at  the  time  the 
company's  railroads  were  placed  in  the 
hands  of  a  receiver,  by  extending  the  order 
appointing  the  receiver,  should  be  paid  out 
of  the  net  earnings  of  the  roads  which  came 
to  the  hands  of  the  receiver,  and  the  bond- 
holders at  whose  instance  the  receiver  was  ap- 
pointed are  postponed  until  the  wages  of  the 
employes  are  first  paid.  Douglass  v.  Cline, 
12  Bush  (Ky.)  608,  18  Am.  Ry.  Rep  273. 

N.  Y.  Act  ot  1885,  ch.  376.  pioviding  that 
where  a  receiver  is  appointed  "the  wages 
of  the  employes,  operatives,  and  laborers" 
shall  be  preferred  in  payment,  only  includes 
such  persons  as  perfotm  the  same  kind  of 
service  as  the  persons  mentioned  ,  and  does 
not  include  such  persons  of  a  manufactur- 
ing corporation  as  bookkeepers,  superin- 
tendents, and  foremen  paid  by  the  month. 
In  re  Stryker,  73  Hun  327,  55  A'.  Y.  S.  R. 
903,  26  A'.  Y  Supp.  209.— Quoting  Wake- 
field V.  Fargo,  90  N.  Y.  213. 

03.  Restoration  of  diverted  fiiiidN. 
-  When  the  current  earnings  ot  a  railroad, 
which  ought,  in  equity,  to  have  been  em- 
ployed to  pay  current  debts  contracted  be- 
fore the  receiver's  appointment,  for  labor, 
supplies,  and  the  like,  have  been  applied  by 
the  company  to  the  payment  of  interest  due 
mortgage  creditors,  to  pay  for  additional 
equipments  for  the  road,  ot  tor  valuable  and 
lasting  imptovements.  it  is  competent  tor 
the  court  to  restore  what  has  been  thus  im 


propel  ly  diverted,  and  to  direct  such  current 
debts  to  be  paid  out  of  the  income  in  the 
receiver's  hands,  before  anything  derived 
from  that  source  goes  to  the  mortgage 
creditors.  Addison  v.  Lejvis,<)  Am.  «5-  Eng. 
R.  Cas.  702,  75  Va.  701. 

This  doctrine  of  restoration  of  the  funds 
rests  not  upon  any  ground  of  a  supposed 
lien  of  the  supply  or  labor  creditor  upon 
the  earnings  of  the  road  hut  upon  the 
idea  that  the  officers  of  the  tc"ipaiiy  arc, 
in  a  sense,  trustees  of  these  earnings  for 
the  benefit  of  the  different  claims  of  credit- 
ors, and  if  they  give  to  one  class  of  creditors 
that  which  properly  belongs  to  another 
the  court  may.  upon  an  adjustment  of  ac- 
counts, so  use  the  income  in  its  hands  as 
to  restore,  if  practicable,  the  parties  to  their 
original  rights.  Addison  v.  Lewis,  9  Am. 
&*  Eng.  R.  Cas.  702,  75  Va.  701. 

Vn.  BBCEIVER'8  CEBTinCATES. 

04.  Power  of  the  court  to  author- 
ize.—A  court  of  equity  has  power  to  ap- 
point a  leceiver  for  a  railroad,  and  to  au- 
thorize him  to  raise  money  necessary  for 
the  management  and  preservation  ot  the 
road,  and  make  the  debt  created  thereby  a 
first  lien  on  the  road.  Wallace  v.  Loouiis 
97  i/.  S.  146.  —  FOLIOWED  IN  Investment 
Co.  of  Phila.  V.  Ohio  &  S.  W.  R.  Co.,  36  Fed. 
Rep.  48,  Union  Trust  Co.  z:  Illinois  Mid 
land  R  Co,  117  U.  S  ^i4.—Si'tddy  v. 
Atlantic.  M.  &*  O.  R.  Co  ,  i  Hughes  (  U.  S.) 
320.  Meyet  v.  Johnston,  53  Ala.  237,  15 
Am.  Ry  Rep.  467,  Farmers'  &•  Af.  Bank 
V.Philadelphia  &*  R.  R  Co..  14  Phi/a.  (Pa.) 
456.  K^arn  v.  Roter  Iron  Co..  86  I'a  754. 
14  Va.  L.  J.  217.  II  S.  E.  Rep.  431. 

But  the  chancellor  has  no  power  to  disre- 
gard the  laws  against  usury  by  authorizing' 
a  receiver  to  borrow  money  by  selling  in- 
terest-bearing receivers  certificates  ot  in- 
debtedness at  less  than  their  lace  value. 
Meyer  v.  Johnston.  53  Ala  237,  1 5  Am  Ry 
Rep.  467. 

Such  an  order  can  only  be  made  upon 
motion,  and  after  a  proper  hearing.  Meyer 
V.  Johnston.  53  Ala.  237,  15  Am.  Ry.  Rep. 
467.     Ex  parte  Mitchell.  12  So  Car.  83. 

This  power,  however,  should  be  exercised 
with  great  caution.     State  v    East  Line  &* 

*  Receiver's  certificates  of  indebtedness,  see 
note,  q  L.  R.  A.  143. 


dtodircct  such  current 

of  the  income  in  the 

fore    anything  derived 

goes  to  the  mortgage 

oi.  '* 

:storation  of  the  funds 
Rroiind  of  a  supposed 
-  labor  creditor  upon 
road    hut  upon    the 
s  of  the  tc"ip;iny  are, 
of  these  earnings   for 
'erent  claims  of  credit- 
0  one  class  of  creditors 
belongs   to   another 
an  adjustment  of  ac- 
come  in  its  hands  as 
le.  the  parties  to  their 
'""«  V.   Lewis.  9  Am. 

5  y<t.  701. 

\  CEBTinCATIS. 

i  court  to  author- 
ity has  power  to  ap- 

railroad,  and  to  an- 
money  necessary  for 

preservation  of  tiie 
ebt  created  thereby  a 

IVai/itte  V.  Loowti 
>WED  IN  Investment 
N.W.R.Co..36Fed. 
Co.  V.  Illinois  Mid 

S  A34-~Sktd(fy  V. 
o.^Hughei  {U.  S.) 
'«.  S3  A/a.  237.  ,5 
xrmers  6-  Af   ^,,„^ 

Co..  14  PJiifa.  {Pa  ) 
'on  Co.,  86  I'a    7,. 

s  no  power  todisre- 
sury  by  authorizinj,' 
oney  by  selling  in- 
I  certificates  of  in- 
'  their  lace  value. 
'^    237.  IS  Am    Ay 

ily  be  made  upon 
;r  hearing.  Meyer 
'5  Am.  Ay.  A'ep. 
'2  So  Car.  83. 
hould  be  exercised 
<"  V   East  Line  <S- 


RECEIVERS,  05-98. 


1201 


f  indebtedness,  see 


R.  R.  R.  Co.,  {Ttx.)  48  Am.  &'  Eng.  A\  Cas. 
656. 
05.  General    nature  and  effect.*— 

A  receiver's  ccrilficaies,  being  merely  evi- 
dences of  indebtedness,  can  have  no  higher 
cliaracter  tliaii  the  debts  which  they  repre- 
sent. FitLlity  I.  &*S.  D.  Co.  v.  Shenandoah 
Iron  Co.,  42  Fed.  Kcp.  372. 

A  receiver's  certificates,  issued  to  be  paid 
out  of  the  income  of  the  road  in  his  hands 
from  lime  to  time,  are  practically  call  loans, 
and  a  holder  of  such  certificates  has  a 
right  to  assume  that  the  receiver  will  notify 
him  when  the  loan  is  to  he  called,  or  the 
money  paid.  Mercantile  Trust  Co.  v.  Kana- 
wha ^S^•  O.  R.  Co.,  50  /•"■(•</.  A'ef>.  874. 

An  application  by  receivers  to  issue  ccr- 
tihcates  of  indebtedness  to  cover  certain 
expenses,  and  an  order  of  the  court  thereon 
accordingly,  docs  not  bind  the  receivers  or 
the  trust  fund  to  pay  |)articular  items  of 
such  expenses,  the  propriety  of  whose  pay- 
ment was  not  before  the  court.  Coe  v.  New 
Jersey  Midland  A'.  Co.,  27  N.  /.  Eg.  37. 

0«.  For  wliat  pnrpoHes  Issued.— 
A  court  of  equity  has  the  power  to  authorize 
a  receiver  to  issue  certificates  of  indebted- 
ness, and  to  make  them  a  first  lien  upon  the 
road,  for  the  purpo?*^  of  raising  funds  to 
make  necessary  repairs  and  improvements; 
but  It  IS  a  power  to  be  sparingly  exercised. 
When  the  road  cannot  be  kept  running 
by  exercising  tins  jiower  to  a  very  limited 
extent,  the  safe  and  sound  practice  is  to 
discharj-e  the  receiver  or  stop  running  the 
road,  and  s|)ee(l  a  foreclosure.  Credit  Co. 
v.  Arkiti'Stts  C.  A\  Co.,  5  McCrary  ( U.  S.) 
23,  15  /-'id.  Rep.  46. —  Followed  IN  Guar- 
anty T.  &  S.  D.  Co.  V.  Green  Cove  S.  &  M. 
R.  Co..  139  U.  S.  137. 

It  is  no  part  of  the  duty  of  the  court  of 
chancery  to  build  railroads,  and  the  assent 
of  all  the  parties  interested  cannot  make  it 
such ;  and  there  is  no  difference,  so  far  as 
relates  to  this  question,  between  building  a 
railroad  by  raising  money  on  a  receiver's  cer- 
tificates, and  making  extensive  and  general 
repairs  and  betterments,  the  cost  of  which 
sometimes  approximates  the  cost  of  original 
construction.  Credit  Co.  v.  Arkansas  C.  R, 
Co.,  5  AfcCrary(U.  S.)  23,  15  Fed.  Rep.  46. 

Where  trustees  of  a  fust  mortgage  bring 
suit  to  foreclose,  and  the  road  is  in  a  decayed 
and  dilapidated  condition,   the  court   may 

*  Effect  and  character  of  receiver's  certificates, 
see  note,  4  Am  &  Eng.  R.  Cas.  84. 
6  D.  R.  D.— 76 


authorize  the  receivers  to  borrow  money  for 
the  purpose  of  preserving  it  and  completing 
a  small  portion  thereof  for  the  transai  iioii 
of  business,  and  may  make  the  money  bor- 
rowed a  first  lien  on  the  road.  Stanton  v. 
Alabama  &-  C.  R.  Co.,  2  Vt'oodi  (U.  S.)  506. 
—  Ri'.viK.WKU  IN  Vermont  iSiC.  R.Co.7'.  Ver- 
mont C.  R.  Co.,  50  Vt.  500. 

1>7.  iNHuing  in  payment  for  niu- 
terialH  and  HupplieH.— Where  funds  arc 
applied  to  permanent  improvements,  or  to 
the  payment  of  interest  on  bonds,  which 
should  have  gone  to  pay  for  materials  used 
in  keeping  the  road  a  going  concern,  the 
court  will  direct  the  receiver  to  issue  certifi- 
cates, and  apply  the  proceeds  to  refunding 
the  same  ;  but  materialmen  are  not  entitled 
to  further  preference  from  the  proceeds  of 
the  sale.  Finance  Co.  of  Pa.  v.  Charleston, 
C.  &»  C.  R.  Co..  52  Fed.  Rep.  524. 

Receivers  may  also  be  authorized  to  issue 
certificates  in  payment  of  claims  for  ma- 
terials and  supplies  furnished  the  company 
not  more  than  five  months  before  the  road 
was  placed  in  their  hands.  Farmers'  <S^  /)/. 
Bank  V.  Philadelphia  &*  R.  R.  Co.,  14  Phila. 
(Pa.)  456. 

An  order  appointing  a  receiver  provided 
that  he  should  do  all  things  necessary  to 
complete  the  roid,  that  he  borrow  money 
necessary  therefor,  and  issue  his  debentures 
or  certificates  therefor;  that  such  certifi- 
cates, "  whether  for  money  borrowed,  ma- 
terial furnished,  labor  performed,  or  on  ac- 
count of  contracts  made  by  him  on  account 
of  the  construction  of  the  road,"  should 
constitute  a  first  lien  on  the  road.  Held- 
(i)  that  the  receiver  was  not  authorized  to 
issue  certificates  in  payment  of  material 
until  it  had  been  furnished  ,  and  iliatccrtili- 
cates  issued  by  him  for  material  contracted 
for,  but  never  delivered,  were  void ;  (2)  that 
where  such  certificates  recited  upon  their 
face  that  they  were  issued  under  an  order  of 
court,  the  holderwas  chargeable  with  notice 
of  the  order,  and,  in  taking  them,  was  bound 
to  inquire  whether  the  receiver  had  power 
to  issue  them  in  payment  for  material  to  be 
delivered  at  a  future  time.  Montreal  Hank 
V.  Chicago,  C.  iS-  W.  R.  Co.,  48  I(nva  518.— 
Followed  IN  Central  Nat.  Bank  7'.  Hazard, 
30  Fed.  Rep.  484,  24  Blatchf.  (U.  S.)  310. 

08.  Should  not  be  issued  save  in 
cases  of  necessity. — The  court  should 
not  authorize  an  issue  of  receiver's  certifi- 
cates unless  a  detailed  statement  is  made 
out,  specifying  the  items  of  the  sum  needed, 


1202 


RECEIVERS,  00. 


.  it 


p 


aiirl  the  purposes  to  which  it  is  to  be  ap< 
plied,  supported  liy  clear  proof  of  the  cor- 
rectness thereof  und  of  the  necessity  for 
niisinj;  the  money,  and  after  proper  notice 
to  and  hearing;  i>f  the  parties  interested. 
Miyer  v.  Johmton,  53  Ala.  237,  1 5  Am.  Ry. 
Ju'p.  467. 

A  receiver  was  authorized  by  the  court 
to  budd  a  considerable  extension  of  the 
roiul,  and  in  payment  therefor  to  issue  cer- 
tificates which  should  be  a  first  lien  upon 
the  entire  line.  Held,  that  in  the  absence 
of  a  showing  of  some  peculiar  exigency 
wliith  rendered  the  extension  necessary,  a 
nu'chanic's  lien  on  the  road  would  not  be 
dis[)laced  by  the  indebtedness  so  created. 
StKnv  V.  ll'ins/mu,  54  I(nt>a  200,  6  A'.  W. 
J\ep.  191.  — Revikwinc;  Stanton  v.  Alabama 
&  C.  R.  Co..  2  Woods  (U.  S.)  506 ;  Kennedy 
V.  St.  Paul  &  P.  R.  Co..  2  Dill.  (U.  S.)  448. 

Application  to  (:om|)el  the  receivers  of  an 
insolvent  railroad  to  deliver  to  creditors 
certain  certificates  of  indebtedness,  which 
they  were  authorized  to  issue,  and  which 
they  had  otTered  to  such  creditors  in  pay- 
ment of  rolling  stock,  and  which  the  cred- 
itors had  accepted,  refused  ,  the  creditors 
having  had  it  in  their  po*'  er  to  retake  their 
property  at  any  time,  and  it  appearing  that 
it  would  have  been  to  the  disadvantage  of 
the  trust  fund  for  the  receivers  to  have  paid 
the  contract  price.  Coe  v.  New  Jersey  Mid- 
laud  A'.  Co.,  27  N.  J.  Eg.  37. 

IM).  Priority  over  other  liens.  —  A 
court  authorized  a  receiver  to  borrow  money 
and  to  issue  certificates  of  indebtedness  to 
be  a  lien  upon  the  property  prior  to  the 
mortgiige  debt,  and  to  part  with  them  at  a 
rate  not  less  tlian  ninety  cents  on  the  dol- 
lar. The  receiver  borrowed  money  upon 
hypothecation  of  some  of  these  certificates. 
The  property  was  decreed  to  be  sold  sub- 
ject to  liens  established  and  to  be  estab- 
lished in  then  pending  references.  Held, 
that  the  hypothecated  certificates  were  not 
liens  to  the  extent  of  their  face  value,  but 
that  a  decree  directing  the  debts  secured  by 
them  to  be  paid  on  them  at  the  rate  of 
ninety  cents  on  the  dollar  to  the  extent  of 
the  money  actually  advanced,  and  making 
that  amount  of  certificates  a  lien,  would  be 
upheld  in  equity.  Swatin  v.  Clark,  17  Am, 
&*  ting.  R.  Cas.  354,  I  lo  I/,  S,  602,  4  Sufi. 
Ct.  Kefi,  241. 

Receiver's  certificates  issued  for  money  to 
make  necessary  repairs  on  a  railroad  may 
be  made  a  first  hen  on  the  road.     Union 


Trust  Co,  V,  Illinois  Midland  K,  Co,,  2$  Am. 
«S-  JCnj,'.  R.  Cas.  560.  117  U.  S,  434,  6  Sufi, 
Ct.  Refi.  809.  —  Following  Wallace  v. 
Looinis,  97  U.  S.  146;  Miltcnberger  v.  Lo- 
gansport  C,  &  S.  W.  K.  Co.,  106  U.  S,  286. 

A  receiver  reported  that  he  had  been 
compelled  to  take  earnings  that  were  pri- 
marily for  the  payment  of  operating  ex- 
penses, to  pay  for  betterments.  The  court 
ordered  him  to  issue  his  certificates  for 
money  to  pay  operating  expenses.  Held, 
that  the  certificates  became  a  first  lien  on 
the  road.  Union  Trust  Co.  v.  Jllinois  Mid- 
land R.  Co.,  25  Am.  &•  ling.  R.  Cas.  560, 
117  U.  S.  434,  6  Sufi.  Ct.  Refi.  809.— Ap- 
PMKi)  IN  Farmers'  L.  &  T.  Co.  v.  Chicago 
&  A.  R.  Co.,  43  Am.  &  Eng.  R.  Cas.  436,42 
Fed.  Rep.  6. 

A  judgment  creditor  brought  suit  for  the 
sale  of  a  road  covered  by  numerous  mort- 
gages, and  a  receiver  was  appointed  and  an 
order  made  directing  him  to  issue  certifi- 
cates to  parties  claiming  to  be  subcon- 
tractors for  building  the  road,  and  who  were 
about  to  sell  certain  pledged  shares  of  the 
stock  of  a  company  whose  road  formed  a 
part  of  the  line.  The  certificates  were  made 
a  first  lien  on  a  certain  part  of  the  road  and 
so  stated  on  their  face.  The  trustee  in  the 
mortgages  was  a  party  to  the  suit,  when  the 
receiver  was  appointed,  and  consented  to 
the  issue  of  certificates.  The  trustee  also 
filed  a  foreclosure  bill,  in  which  a  decree  of 
foreclosure  and  sale  was  made,  providing 
for  the  payment  of  "  court  and  receiver's 
indebtedness,"  prior  to  the  payment  of  the 
bondholders,  and  gave  leave  to  the  pur- 
chaser to  appeal  from  any  order  directing 
the  payment  of  claims  as  prior  to  the  mort- 
gage bonds.  The  road  was  sold,  and  the 
purchaser,  under  the  order  of  the  court,  re- 
ceived the  shares  of  stock  referred  to.  The 
claims  of  the  holders  of  the  certificates  were 
reported  favorably  by  a  master,  and  on  ex- 
ceptions to  the  report  by  the  purchaser,  for 
himself  and  other  bondholders,  the  court 
allowed  all  the  certificates  as  prior  liens,  and 
directed  the  purchaser  to  pay  their  amount 
into  court.  Held:  (1)  that  the  issue  of 
certificates  was  proper;  (2)  that  good  faith 
required  that  the  promise  of  the  court 
should  be  redeemed  ,  (3)  that  the  purchaser 
and  the  bondholders  were  estopped  from 
setting  up  any  claims  against  the  priority  of 
the  certificates.  Kneeland  v.  Luce,  50  Am. 
&»  Eng.  R.  Cas.  668.  141  U.  S.  491,  12  Sufi. 
Ct.  Refi.  32.— Followed  in  Farmers'  L.  & 


RECEIVERS,  lOO,  101. 


1203 


i K.  Co.,  2%  Am. 
r.  S.  434.  6  Sup. 
JG  Wallace  v, 
cnberner  v.  Lo- 

io6  U.  S.  286. 

:   lie    had  been 

that  were  pri- 

opcratinH  ex- 

iits.     The  court 

certificates  for 
xpenses.  J/elii, 
c  a  first  lien  on 

V.  Illinois  Atiii' 
Jiff.  J\'.  Las.  560, 

/iV/.  809.— A  P- 

Co.  V.  Chicago 
.  R.  Cas.  436, 43 

i^ht  suit  for  the 
Miimerous  niort- 
ppointed  and  an 
to  issue  certifi- 

to  be  subcoM- 
id,  and  who  were 
?d  shares  of  the 

road  formed  a 
catcs  were  made 
of  the  road  and 
16  trustee  in  the 
lie  suit,  when  the 
nd  consented  to 
The  trustee  also 
irhich  a  decree  of 
made,  providing 
t  and  receiver's 
payment  of  the 
ave  to  the  pur- 
r  order  directing 
•ior  to  the  mort- 
as  sold,  and  the 
of  the  court,  re- 
referred  to.  The 
certificates  were 
ister,  and  on  ex- 
lie  purchaser,  for 
jiders,  the  court 
s  prior  liens,  and 
)ay  their  amount 
at  the  issue  of 
that  good  faith 
se  of  the  court 
lat  the  purchaser 
i  estopped  from 
St  the  priority  of 
V.  Luce,  50  Am. 
/.  5.  491,  12  Sup. 
IN  Farmers'  L.  & 


T.  Co.  V.  Kansas  City,  W.  &  N.  W.  R.  Co., 
53  Fed.  Rep.  182. 

Where  a  receiver's  certificates  arc  issued 
by  consent  of  all  the  parties,  and  arc  made 
a  first  lien  on  the  road,  purchasers  of  the 
property  at  a  subsequent  foreclosure  sale 
arc  estopped  from  denying  the  validity  of 
the  certificates  on  the  ground  that  the  re- 
ceiver was  not  in  possession  or  operating 
the  railway,  and  that  the  suit  pending  was 
not  to  foreclose  a  mortgage.  Central  Trust 
Co.  V.  .Sheffield  **  B.  C,  I.  6-  N.  Co.,  44  Ked. 
Rep.  526. 

After  property  passes  into  the  hands  of  a 
receiver  he  holds  it  as  an  officer  of  the 
court,  subject  to  its  direction  and  control; 
and  the  court  has  power  to  authorize  the 
receiver  to  issue  certificates  of  indebtedness, 
and  to  borrow  money  thereon  to  be  used  in 
purchasing  necessary  rolling  stock  and  in 
paying  running  expenses,  and  to  make  such 
certificates  a  paramount  lien.  Central  Trust 
Co.  V.  Tappen,  25  A^.  Y.  S.  A'.  635,  53  Hun 
638.  6  A'.  V.  Supp.  gi8. 

Where  it  appears  that  there  is  no  money 
in  the  treasury  and  no  working  capital  on 
hand  to  pay  current  expenses,  and  the  com- 
pany is  without  credit,  and  has  no  rolling 
stock,  except  one  locomotive  upon  which 
there  is  a  vendor's  lien,  and  one  car  for 
which  a  very  high  rental  is  being  paid,  and 
the  receiver  needs  money  properly  to  pre- 
serve and  operate  the  road,  and  to  protect 
the  interest  of  &1I  parties,  it  is  proper  to 
order  him  to  issue  receiver's  certificates. 
Central  Trust  Co.  v.  Tappen,  25  A'.  K.  S.  A'. 
635,  53  Hun  638. 6  A',   y.  Supp.  918. 

100.  NeceHsity  of  coiiHuiit  <»f  other 
Ii«ii-liol(lers. — A  court  of  equity,  in  ad- 
ministering the  affairs  of  an  insolvent  rail- 
ro;id,  may  order  repairs,  and  direct  receiver's 
certificates  to  issue  for  moneys  raised  for 
that  purpose,  making  them  a  first  lien  on 
the  road,  without  the  consent  of  the 
company,  or  its  creditors,  and  without 
notice  to  them.  Union  Trust  Co.  v.  Illinois 
Midland  R.  Co.,  25  Am.  &*  Kng.  R.  Cas. 
560,  117  U.  S.  434,  6  Sup.  Ct.  Rep.  809. — 
Distinguished  in  American  L.  &  T.  Co. 
V.  East  &  W.  R.  Co.,  46  Fed.  Rep.  loi. 

The  power  of  the  federal  courts  to  au- 
thorize the  issue  of  receiver's  certificates, 
and  to  make  them  a  charge  upon  the  rail- 
road superior  to  the  mortgage  and  statu- 
tory liens,  has  been  so  often  affirmed  that 
it  is  not  now  open  to  question  ;  but  it  is 
a  power  to  be  exercised  with  great  caution. 


and,  if  possible,  with  the  consent  or  ac- 
quiescence of  the  parties  interested  in  the 
funds.  Investment  Co.  of  I'liila.  v.  Ohio  &» 
A',  //'.  A'.  Co..  36  Fed.  /iV/.  48.— KxiM.AlN- 
IN(;  Kennedy  z/.  St.  Paul  &  P.  R.  Co.,  2 
Dill.  (U.  S.)  448.  Following  Wallace  v. 
Looniis,  97  U.  S.  146. 

A  receiver  will  not  be  authorized  to  issue 
certificates  to  raise  money  to  complete  im- 
provements begun  on  the  road,  where  it  is 
doubtful  whether  they  would  add  to  the 
selling  price  of  the  property,  except  upon 
the  consent  of  existing  lien-holders.  /«- 
vestment  Co.of  Phila.y.  Ohio  Sr*  N.  W.  R, 
Co.,  36  Fed.  Rep.  48. 

And  where  some  of  the  existing  lien-hold- 
ers consent  to  an  iisue  of  such  certificates, 
and  others  do  not,  they  will  not  be  made  a 
charge  upon  the  interest  of  those  who  do 
not  c'Mscnt  unless  it  is  clearly  made  to  ap- 
pear that  the  salable  value  of  the  property 
will  be  thereby  increased,  so  as  to  make  it 
equitable  to  require  those  not  consenting  to 
bear  a  ratable  portion  thereof.  Investment 
Co.  of  Phila.  V.  Ohio  <S-  A'.  W.  R.  Co.,  36 
Fed.  Rep.  48. 

A  receiver  of  a  street-railway  company,  to 
provide  funds  for  paving  a  street  between 
its  tracks,  presented  a  petition  to  the  court, 
accompanied  by  a  contract  for  the  paving 
which  provided  for  payment  in  cash  or  in 
receiver's  certificates.  Certain  holders  of 
mortgage  bonds  protested,  and  asked  that 
in  case  the  certificates  were  issued  they 
should  be  made  subordinate  to  the  liens  se- 
curing the  bonds,  but  the  court  denied  the 
protest,  directed  the  acceptance  of  a  bid 
for  the  work,  and  approved  the  contract 
providing  for  the  issuance  of  receiver's  cer- 
tificates, but  did  not  direct  the  issuance  of 
certificates,  nor  refuse  to  declare  that  the 
certificates,  if  issued,  should  be  subordinate 
to  the  liens  securieig  the  bonds.  Held,  that 
such  bondholders  were  not  entitled  to  a 
supersedeas  to  stay  the  issuance  of  the  cer- 
tificates, pending  an  appeal  by  them  from  the 
order  of  the  trial  court,  the  application 
therefor  being  premature.  Dorn  v.  Crank, 
96  Cal.  381,  31  Pac.  Rep.  s::8. 

101.  Duration  of  the  lien.  —  The 
fact  that  a  case  has  gone  to  the  master  to 
ascertain  the  claims  against  a  receiver,  and 
a  report  is  confirmed  which  does  not  men- 
tion certain  receiver's  certificates,  is  not  an 
adjudication  which  will  cut  them  off,  where 
it  appears  that  they  were  not  presented  be- 
cause the  holder  had  no  not  ice  of  the  refer* 


F 


1304 


RECEIVERS,  102-104. 


m 


cnce.  The  lien  of  the  certificiitrH  continues 
ns  ioiiK  as  tlie  order  aiitliorizin^  them  re- 
mains  in  force.  Affrcan(i7e  Trust  Co.  v. 
Kanawha  &*  O.  A'.  Co..  50  AVv/.  />>/.  874. 

I'cndinfj  ii  foreclosure  suit  a  receiver  issued 
certificates, and  afterwards  ilie  road  was  sold 
to  a  committee  of  bondholders  to  be  paid 
for  in  bonds,  and  the  sale  was  confirmed  and 
a  conveyance  directed  subject  to  the  pay- 
ment in  cash  of  any  sums  on  account  of  the 
|)urchase  price  which  the  court  might  after- 
wards direct.  These  conditions  were  incor- 
pf)rated  in  a  deed  to  tlic  purchasers,  and  a 
vendor's  lien  retained,  and  the  same  condi- 
tions  were  embraced  in  a  deed  conveying 
the  property  to  a  new  company  organized 
by  the  bondholders.  I/e/i/,  that  the  provi- 
sions were  in  the  nature  of  covenants  run- 
ning with  land,  and  the  lien  of  the  certifi- 
cates continued  on  the  property  instead  of 
the  fund  arising  from  the  sale.  MercantiU 
Trust  Co.  V.  Kanawha  &*  O.  Ii.  Co..  50  Fed. 
Kff>.  874. 

102.  Power  to  enforce  the  lien.— 
Where  a  road  extends  through  two  states, 
and  a  federal  court  in  one  state  directs  a  re- 
ceiver to  issue  certificates,  and  ancillary  pro- 
ceedings are  instituted  in  a  federal  court  of 
the  other  state,  the  latter  court  has  jurisdic- 
tion to  enforce  the  lien  of  the  certificates  in 
a  separate  suit  against  the  purchasers  of  the 
road.  Mercantile  Trust  Co.  v.  Kanawha  &* 
O.  A'.  Co..  so  Ffi/.  A'efi.  874. 

103.  Questioning  priority  or  valid- 
ity—Estoppel.— A  contract  to  pay  invalid 
certificates,  made  by  a  purchaser  of  prop- 
erty who  subsequently  becomes  receiver, 
cannot  be  enforced,  either  against  the  re- 
ceiver, as  such,  or  against  the  property.  Such 
a  contract  is  but  a  mere  voluntary  and  per- 
sonal undertaking ;  and  the  receiver,  as 
such,  is  not  estopped  from  contesting  the 
claim.  Stanton  v.  Alabama  &>  C.  A*.  Co..  31 
Fid.  Rep.  585. 

On  an  ex  parte  application  of  a  receiver, 
an  order  to  issue  receiver's  certificates, 
was  modified  so  as  to  declare  some  of 
the  certificates  invalid,  with  the  privilege 
to  the  holders  to  intervene  and  have  their 
validity  adjudicated.  Held,  that  a  petition 
in  intervention  which  recited  the  entry  of 
the  modified  order,  did  not  thereby  admit 
the  invalidity  of  the  certificates.  Central 
Trust  Co.  V.  Sheffield  &*  B.  C.  I.  &*  R.  Co., 
44  Fed.  Rep.  526. 

The  fact  that  the  principal  of  such  certifi- 
cates is  not  due  does  not  make  the  inter- 


vention |)rcmature,  if  the  interest  thereon  is 
due  and  unpaid.  Central  Trust  Co.  v.  Slie/- 
field  iS-  a.  C.  I.  Sr*  R.  Co..  44  Fed.  Rep.  526. 

The  receiver  who  issued  the  certificates, 
and  who  has  in  his  hand  the  funds  from 
which  they  should  be  paid,  if  valid,  is  a  nec- 
essary defendant  to  sue!)  intervention;  but 
the  complainant  in  the  original  suit  is  not  a 
proper  defendant  where  it  ap|)ears  that  In- 
no  longer  has  any  interest  in  the  fund  in 
controversy,  and  no  relief  is  asl<ed  against 
hint.  Central  Trust  Co.  v.  Sheffield  &*  It. 
C,  /.  6-  A".  Co.,  44  Fed.  Rep.  526. 

If  the  holder  of  railroad  bonds  secured  by 
trust  deeds,  having  notice  of  the  appoint- 
ment of  a  receiver,  and  an  order  of  court  di- 
recting him  to  issue  certificates  on  which  to 
raise  money  to  discharge  a  chattel  mortgage 
on  personal  property  of  the  company,  and  to 
pay  taxes,  current  expenses,  etc.,  and  mak- 
ing such  certificates  a  first  lien  on  all  the 
property  of  the  company,  desires  to  question 
the  power  of  the  court  to  make  such  order, 
he  must  do  so  before  such  certificates  are 
issued  and  sold  to  bona  fide  purchasers,  or 
paid  out  to  creditors  of  the  company.  Af- 
ter their  issue  and  sale,  it  will  be  too  late  for 
him,  or  purchasers  from  him  with  notice  of 
the  facts,  to  raise  the  question  whether  the 
subject-matter  to  which  the  certificates  were 
applied  was  within  the  scope  of  the  power  of 
the  court  in  the  preservation  of  the  property 
for  the  benefit  of  all  concerned.  Humphreys 
V.  Allen.  4  Am.  &*  Eng.  R.  tVrj.  14,  101  ///. 

490. 

The  Vernjont  &  Canada  R.  Co.  and  the 
first  and  second  mortgage  bondholders  of 
the  Vermont  Central  R.  Co,,  through  their 
committee,  having  full  knowledge  of  the 
acts  of  the  receivers  and  managers,  in 
issuing  negotiable  obligations,  as  such,  and 
acquiescing  therein,  and  receiving  some  por- 
tion of  the  avails  thereof,  are  estopped  from 
denyingthat  said  acts  areas  binding  upon 
them  as  the  acts  of  strict  receivers  would 
have  been  ;  hence,  as  between  the  bona  fide 
holders  of  the  bonds  so  issued  by  the  re- 
Cfiivers  and  managers,  and  the  Vermont  & 
Canada  R.  Co.,  with  its  claim  for  rent,  and 
the  first  and  second  mortgajje  bondholders 
of  the  Vermont  Central  R.  Co.,  with  their 
claim  for  interest,  the  former  have  the  supe- 
rior equity  and  must  be  paid  first.  Lang- 
don  V.  Vermont  <S-  C.  R.  Co.,  4  Am.  &*  Eng. 
R.  Cas.  33.  53  Vt.  228. 

H»4.  Nef;otinliility.— Receiver's  cer- 
tificates are  not  commercial  paper,  and  the 


■ 


nterest  tliercon  Is 

'/'rust  i'i>.  V.  S/if/- 

44  /•'<■./.  AV/.  526. 

I  tlie  certificates, 

I  the   funds  from 

if  valid,  is  a  ncc- 

ntcrvention ;    hut 

Kitial  suit  is  not  a 

appears  that  lie 

in  tlie   fund  in 

is  asked  against 

V.  Sheffield  &*  li. 

p.  526. 

bonds  secured  by 
e  of  the  appoint- 
ordcrof  court  di- 
icateson  wliich  to 
I  chattel  mortgage 
c  company,  and  to 
ics,  etc.,  and  mak- 
st  lien  on  all  the 
iesires  to  question 
make  such  order, 
ch  certificates  are 
Ide  purchasers,  or 
he  company.  Af- 
will  be  too  late  for 
lim  with  notice  of 
!stion  whetlier  the 
le  certificates  were 
)pe  of  the  power  of 
on  of  the  property 
rned.  Humphreys 
i*.  tVjj.  14,  101  ///. 

la  R.  Co.  and  the 
»e  bondholders  of 
Co.,  through  their 
cnowledge  of  the 
ind  managers,  in 
ions,  as  such,  and 
iceiving  some  por- 
are  estopped  from 
:  as  binding  upon 
:t  receivers  would 
ween  the  bona  fide 
issued  by  the  re- 
d  the  Vermont  & 
laim  for  rent,  and 
gapie  bondholders 
R.  Co.,  with  their 
ler  have  the  supe- 
paid  first.  Lang- 
7(0.,  4  Am.  &*  Etig, 

, —  Receiver's  cer- 
ial  paper,  and  the 


RECEIVERS,  105. 


1205 


holder  takes  them  subject  tu  all  equities 
between  the  original  parties,  even  though  he 
acquires  them  for  value  and  without  notice. 
Central  Nat.  Hank  v.  Hazard,  30  Fed.  A'ep. 
484,  24  /Hatch/.  (I/.  S.)  310.  Turner  v.  J'e- 
oria  &^  S.  li,  Co.,  1  Am,  &•  ling.  R.  Cas. 
34«,  95  ///.  134.  —  QuoTiNC.  Dawkes  v. 
I^orane,  3  VVils.  207.— [mji.i.owkd  IN  Central 
Nat.  hank  v.  Hazard,  30  Fed.  Rep.  484. 

Keceiver's  certificates,  though  payable  to 
bearer,  are  not  negotiable  instruments  by 
the  law  merchant,  which  will  make  them 
good  in  the  liands  of  a  bona  fide  purchaser 
regardless  of  any  vice  or  defect  attending 
their  original  issue.  They  must  be  gov- 
erned by  the  authority  under  which  they 
arc  issued,  and  not  by  the  form  the  receiver 
may  choose  to  give  them.  So  where  the 
court  directs  them  to  be  sold  for  not  less 
than  ninety  cents  on  the  dollar,  a  holder  can 
only  claim  an  amount  actually  paid  for 
them ;  but  the  purchaser  is  not  bound  to 
see  that  the  money  is  properly  applied  by 
the  receiver.  Stanton  v.  Alabama  «S-  C,  K, 
Co.,  2  Woods  (I/.  S.)  506.— Follow F.i»  in 
Central  Nat.  Bank  v.  Hazard,  30  Fed.  Rep. 
484,  24  niatchf.  (U.  S.)  310 ;  Stanton  v.  Ala- 
bama &  C.  R.  Co.,  31  Fed.  Rep.  585.  Re- 
VIKWKO  IN  Snow  7>.  Winslow,  54  Iowa  200. 

So  where  such  certificates  are  directed  to 
be  sold  at  not  less  than  ninety  cents  on  the 
dollar,  and  the  receivers  pledge  them  for  a 
sum  much  below  what  that  price  would 
realize,  the  court  will  order  a  return  of  all 
bonds  not  necessary  to  secure  the  loan, 
when  valued  at  ninety  cents  on  the  dollar. 
Stanton  v.  Alabama  &*  C.  A*.  Co.,  2  Woods 
(U.  S.)  506.. 

A  receiver's  certificate  was  made  payable 
to  an  individual  or  his  order,  and  was  de- 
livered to  him  by  the  receiver  for  negotia- 
tion and  sale  ;  but  he  was  unfaitiiful  to  his 
trust  and  never  accounted  to  the  receiver 
either  for  the  certificate  or  the  money  real- 
ized l)y  its  sale.  Petitioner  subsequently 
i)ought  it  of  a  third  party  at  forty  cents  on 
tiie  dollar,  but  with  notice  of  the  order  of 
court  under  wliich  it  issued.  Held,  that  it 
was  not  negotiable,  and,  therefore,  he  took 
it  subject  to  all  the  equities  between  the 
receiver  and  the  payee,  ami  could  not  re- 
cover thereon.  Union  Trust  Co.  v.  Cliicai^o 
«5-  /..  //.  /i'.  Co.,  7  rud.  Kep.  513.— Quoting 
Baird  v.  Underwood,  74  III.  176.— Followed 
IN  Central  Nat.  Bank  v.  Hazard,  30  Fed. 
Rep.  484,  24  Blatchf.  (U.  S.)  310. 

Ill  3ui:h  case  the  order  of  court  directing 


the  receiver  to  issue  and  sell  certificate! 
created  a  personal  trust,  and  he  liad  no 
power  to  a])point  an  agent;  and  if  he  as- 
sumed to  make  such  appointment  he  re- 
mained personally  responsible  for  the  con- 
duct of  the  agent.  But  if  the  trust  was  one 
which  could  be  delegated,  he  would  be 
liable  in  his  official  capacity.  Union  Trust 
Co.  V.  Chicago  &•  L.  H.  K.  Co.,  7  Fed.  A'ep. 

105.  Rit;litN  of  piirclinKerM.— A  pur- 
chaser of  receiver's  certificates,  issued  by 
order  of  court,  not  connected  with  tlie  suit 
or  the  parties  thereto,  is  nr)t  bound  to  sec 
to  the  application  of  the  funds.  Union 
Trust  Co.  V.  Hlinois  Midland li.  Co.,  25  Am, 
<S>»  Fng.  R.  Cas.  560,  117  U.  S.  434,  6  Sup. 
Ct.  Rep.  809. 

Where  receiver's  certificates  issue  by 
order  of  court,  not  to  be  sold  for  less  than 
ninety  cents  on  the  dollar,  a  purchaser  at  a 
discount  within  that  fixed  by  the  court  is 
entitled  to  the  face  of  the  certificates  with 
interest.  Union  Trust  Co.  v.  Illinois  Mid' 
land  R.  Co.  25  Am.  &*  Fng.  R.  Cas.  560,  117 
U.  S.  434,  6  .V«/.  Ct.  Rep.  809. 

Where  a  court  orders  a  receiver  to  bor- 
row money  upon  certificates,  which  are 
made  a  charge  upon  the  property,  a  holder 
of  such  certificates  mu.st  be  deemed  as 
having  taken  them  subject  to  the  rights  of 
the  holders  of  prior  liens,  and  who  are  not 
before  the  court ;  and  such  parties  may 
come  in  and  contest  the  necessity,  validity, 
and  amount  of  such  certificates.  Hervey  v, 
Illinois  Midland  R.  Co.,  2%  Fed.  Rep.  169. 

When  receiver's  certificates  are  nego- 
tiated at  a  discount,  which  the  receiver  is 
not  authorized  to  allow,  a  subsequent  bona 
fide  holder  will  only  be  protected  to  the 
amount  actually  advanced  by  the  first  pur- 
ciiaser.  Central  Nat.  Hank  v.  Hazard,  30 
Fed.  Rep.  484, 24  lilatchf.  ( U.  S.)  310.— Fol- 
lowing Stanton  v.  Alabama  &  C.  R.  Co., 
2  Woods  (U.  S.)  506;  Union  Trust  Co.  v. 
Chicago  &  L.  H.  R.  Co.,  7  Fed.  Rep.  513; 
Bank  of  Montreal  v.  Chicago,  C.  &  W.  R.  Co., 
48  Iowa  518;  Turner  v.  Peoria  &  S.  R.  Co., 

95  11'-  '34- 

Where  receiver's  certificates  issue  by  or- 
der of  the  court  to  be  a  first  lien  upon  the 
road,  and  a  purchaser  pays  full  par  value 
therefor,  the  holder's  lien  is  not  affected 
by  the  fact  that  the  receiver  appropriates 
the  money  to  his  own  use.  Mercantile 
Trust  Co.  V.  Kanawha  6-  O.  R.  Co.,  50  Fed. 
Rep.  874. 


If 


1206 


RECEIVERS,  100-1  lO. 


Ill 


" 


i|i!- 


When  persons  act  as  receivers  and  man- 
agers,  and  issue  negotiable  obligations,  as 
such,  with  the  knowledge  and  assent  of  all 
the  parties  interested  in  the  suhject-mattcr 
of  the  receivership,  as  against  dona  fide 
holders  of  such  obligations,  such  parties  are 
estopped  to  deny  tha'.  they  are  just  what 
tlu;y  purport  to  be,  namely,  the  obligations 
of  receivers  and  managers,  and  as  such,  en- 
titled to  priority  of  payment  from  the  assets 
of  the  trust.  Ltxngdon  v.  Vermont  &*  C.  R. 
Co.,  4  -/;//.  &*  Ettii.  ^''-  ^f*^-  33-  S3  '^'-  228. 

It  is  immaterial  whether  they  were  strict 
receivers  or  not.  Purchasers  of  the  bonds, 
or  securities,  issued  by  them  relied  upon 
their  apparent  authority,  as  such ;  and  whbn 
one  of  two  innocent  parties  must  suffer,  he 
shall  siifTcr  who  by  his  own  acts  occasioned 
the  confidence  and  the  loss ;  he  who  gave 
the  power  or  opportunity  to  do  the  act 
must  bear  the  burden  of  the  consequences. 
I.iingiioit  V.  I'erwont  Sr^  C.  K.  Co.,  4  Am.  &* 
Eni^.  A*.  Cas.  33.  53  I't.  228. 

ioo.  Uiifltt  to  iiiqiiiro  into  the 
coiiNiilcrathiii.— Wlierc  receiver's  certifi- 
cates issue  without  any  mf)ney  actually  be- 
ing paid  therefor,  but  to  pay  the  receiver's 
past  due  salary  or  to  reimburse  him  for 
moneys  claimed  tc  have  been  advanced  as 
trustee  for  tiic  bondholders,  the  purchaser 
derives  no  title,  and  subsequent  lioldcrs 
stand  ill  no  belter  jjosiiion,  whether  they  be 
lu'iiii  fide  holders  or  not.  Stanton  v.  Ala- 
bam  a  &»  C.  R.  Co..  3t  Fed.  Re/'.  585. 

107.  RenitMly  for  fraud— Overls- 
Hlic  —  Where  receiver's  certificates  issue 
accompanic'l  by  false  represcniations,  tiie 
law  presumes  an  intent  to  defraud  any  pur- 
chaser of  the  certificate.!,  whether  he  be  a 
first  purchaser  or  not.  So  where  a  receiver 
issues  certificates  with  a  false  statement  that 
they  are  issued  by  order  of  court,  for  an 
indebtedness  for  iron  in  the  construction  of 
a  railroad,  and  create  a  first  lien  thereon,  a 
subsequent  purchaser  suing  on  the  same, 
wh.)  purchases  them  in  open  market  before 
maturity,  need  not  allege  an  intention  to 
defraud  piaintitT,  nor  is  it  necessary  to  iil- 
lege  and  prove  a  fraud  upon  the  payee. 
Banl-  of  .yfoiitreal  v.  Tliaycr,  2  McCrary  1  ■' '. 
S.\  I.— Rkviewinc;  Bnifr  v.  Mali.  36  N.  Y. 
200. 

Hut  in  order  to  recover  in  such  case  '.he 
plain. iff  must  show  th.it  he  acletl  upf)n  such 
false  rcj)resentations,  ami  had  a  li^lii  to  act 
upon  them.  Hank  of  Montreal  \.  Thayer,  2 
JilcCrary  (U.S.)  I. 


And  the  right  in  such  case  to  recover  may 
d'.'pend  upon  whether  the  instrument  is 
sued  on  as  a  warranty,  or  as  a  fraudutent 
misrepresentation.  The  former  is  a  contract, 
and  the  action  upon  it  is  an  action  on  con- 
tract, and  can  only  be  maintained  by  a 
j)arty  to  the  contract.  The  latter  is  a  fraud 
for  which  an  action  ex  de/tctoUcs  in  favor  of 
any  perscm  injured.  Ba/d'  of  Montreal  v. 
Thayer,  2  McCrary  (U.  S.)  i. 

Wnere  a  court  orders  a  receiver  to  issue 
certificates  to  a  certain  amount,  to  be  paid 
out  of  the  proceeds  of  the  road,  certificates 
issued  beyond  the  amount  fixed  are  void  in 
the  hands  of  innocent  holders,  and  con- 
stitiit<;  no  claim  on  the  moneys  in  the  re- 
ceiver's hands.  Newbold  v.  Peoria  &*  S.  R. 
Co..  5  ///.  App.  367 

Rut  where  such  overissue  of  certificates 
are  sold  to  purchasers  in  good  faith,  and  the 
money  is  used  in  paying  interest  on  mort- 
gage bonds,  the  holders  of  such  certificates 
should,  in  equity,  be  subrogated  to  the 
rights  of  the  bondholders,  to  the  extent  of 
the  overissue,  and  paid  therefor  out  of  the 
proceeds  of  the  property.  NetvholdM.  Peoria 
<S-  S.  R.  Co.,  5  ///.  App.  iffj. 

1 08.  AppcalH  from  tlio  order.  —  A 
decree,  made  after  another  decree  directing 
a  foreclosure  ami  sa'e  of  railroad  property, 
authorizing  a  receiver  to  borrow  money  on 
his  certificates,  and  making  the  same  a  first 
lien  on  the  road,  is  such  final  decree  as  to  al- 
low an  appeal  therefrom  to  the  "upreme 
court.  /;;  re  Farmers'  /,.  &*  T.  Co.,  129  U. 
S.  206,  9  Sup.  CI.  Rep.  265. 

If  no  appeal  be  taken  from  such  order, 
receiver's  certificates,  issued  bv  authority 
thereof,  and  made  on  their  face  a  firsc  lien 
on  the  road,  will  be  valid.  ///  re  Farm,rs 
L.  &*  T.  Co.,  129  U.  S.  206,  0  Sup.  Ct.  Rep. 
265. 

100.  Kat«  of  liilt'n'st.— An  order  «if 
court  flirected  a  receiver  of  a  railroad  to 
raise  money  to  pay  taxes  f)n  certificates  at 
ten  per  cent.,  the  legal  rate  at  the  time.  He- 
fore  the  certificates  issued  tlie  rate  of  in- 
terest was  reduced  to  eight  per  cent.  Held, 
that  the  certificates  having  been  issued  at 
ten  per  cent,  were  valid,  and  that  rate  could 
be  collected.  Union  Trust  Co.  v.  Illinois 
Midland  R.  Co.,  25  Am.  &■*  F.ni,'.  R.  Cas.  560, 
117  U.  S.  434,  6  Sup.  Ct.  Rep.  K09. 

110.  Taxation  of.— Ordinary  certifi- 
cates f)f  indebtedness  issued  by  the  n  ceiver  of 
a  railroad  are  not  taxable  as  "  circulation." 
under  U.  S.  Rev.  St.,  g  3408.     United  States 


se  to  recover  may 
e  instrument  is 
as  a  frauduh:nt 
rmer  is  a  contract, 
n  action  on  con- 
maintained  l)y  a 
e  Isitter  is  a  fraud 
c/oUes  in  favor  of 
<•  (>/  Montreal  v. 

)  '• 
receiver  to  issue 

nount,  to  be  paid 
road,  certificates 
fixed  are  void  in 

oldcrs,   and  con- 

loneys  in  the  re- 
Peoria  &-  S.  R. 

jue  of  certificates 
;o()d  faith,  and  the 
interest  on  mort- 
f  such  certificates 
ubroRated  to  the 
to  the  extent  of 
lercfor  out  of  the 
Keivboldv.  Peoria 

tlio  order.  —  A 

!r  decree  directing 
railroad  prf)pcrty, 
borrow  money  on 
iiR  the  same  a  first 
iial  decree  as  to  al- 
1  to  tlie  ~upremc 
6-  T.  Co.,  129  U. 

from  such  order, 

ued    bv   auliiority 

>ir  face  a  firsc  lien 

In  re  l-'aruhrs 

)fi,  9  Sufi.  Ct.  I\ef>. 

Kt. — An  order  of 
r  of  a  railroad  to 
on  certificates  at 
c  at  the  lime.  \\c- 
cd  the  rate  eif  in- 
it  per  cent.  Helil, 
ng  been  issued  at 
nd  that  raie  roiiltl 
list  Co.  V.  Illinois 
■*  Eni;.  A'.  Ciis.  560, 
Uefi.  S09. 

-  Ordinary  certifi- 
d  by  the  nceivernf 
:  as  "  cirrulatinn," 
08.     l/niteil  Sta/is 


RECEIVERS,  111-115. 


1207 


V.  IVt/sott,  106  I/.  S.  620,  2  Sufi.  Ct.  A\-fi.  85.— 
Followed  in  Philadelphia  «S:  R.  R.  Co.  v. 
Pollocic,  17  Am.  &  Eng.  R.  Cas.  483,  19 
Fed,  Rep.  401. 


Vm.  SALES  BT  BECZIVERS. 

111.  Ill  general— Validity.  —  Under 
the  supplement  to  New  Jersey  Laws  of 
March  17,  1870,  being  an  act  to  prevent 
frauds  by  incorporated  companies,  a  receiver 
was  directed  to  sell  the  property,  a  part  free 
from  encumbrances,  and  a  pari  subject 
thereto,  under  specific  directions  from  the 
court.     Aliiiilleton  v.  New  Jersey  W.  L,  R. 

Co.,  35  A',  y.  /iy.  306. 

As  to  a  consent  decree  modifying  an  or- 
der appointing  a  receiver,  and  as  to  the  re- 
lation of  llie  parties,  and  the  right  to  order 
a  sale  of  the  property,  see  Vertnont  &» 
C.  R.  Co.  V.  Vdrmottt  C.  R.  Co.,  50  Vt. 
500,  14  Am.  Ry.  Rep.  497.  —  guoTiNti 
Milwaukee  &  M.  R.  Co.  v.  Souttcr,  2 
Wall.  510;  Gardner  v.  London,  C.  &  I).  R. 
Co.,  L.  R.  2  Ch.  201  ;  Meyer  v.  Johnston,  53 
Ala.  237  ;  J  -Mome  v.  McCartt-r.  94  U.  S.  734; 
Kennedy  v.  St.  Paul  &  P.  R.  Co..  2  Dill. 
448;  Miller  v.  Rutland  &  \V.  R.  Co..  36  Vt. 
452.  Rkvikwino  Stanton  v.  Alabama  A  C. 
R.  Co.,  2  Woods  (Ij.  S  ,  506;  Cowdicy  v. 
Galveston,  H.  &  H.  U.  Co..  i  Woods  332  ; 
Milwaukee  &  M.  R.  Co.  v.  James.  6  Wall. 

7  so- 
il 2.    AVIiat  title   panseM.      Title    to 

laiuls  owned  by  the  Memphis  &  Kl  Paso  R. 
Co.  which  were,  by  order  of  a  circuit  court 
of  the  United  States,  placed  in  the  hands 
of  a  receiver  on  July  6,  1870,  and  whose 
sale  thereof  was  approved  May  29,  1.S79, 
passed,  as  between  the  two  corporations,  to 
the  Texas  A  P  R.  Co.  by  virtue  of  its  piii- 
dnue  from  the  receiver.  The  sale  of  such 
lands  haviiij;  been  made  to  satisfy  lien  cred- 
itors, ilic  titli-  acquired  by  virtue  of  such 
salt!  and  the  receiver's  deed  was  superior  to 
any  right  thereto  lint  could  i)e  acquired  by 
virtue  of  a  sale  under  execution  issued  on  a 
judgment  obtained  on  an  imsecuied  debt 
pending  the  receiver:<liii>.  Riisull  \\  Tia-is 
^-^  J'.  K.  Co.,  C.8  lex.  646,  5  .v.  //'.  K.fi.  (>S6. 
li:<.  5  rot«M-ll«ii  aiTonliMl  to  the 
|Miri'lias«T.— Where  lailm.id  jiroperty  is 
sold  under  an  or<ler  of  court,  the  pijrchaser 
covenanting  to  pay  all  existing  detits  and 
liabilities  of  a  receiversliip.  the  court  should 
pnitprt    the     purchaser    against    demands 


which  are  not  just  claims  against  the  re- 
ceiver, by  requiring  such  claims  to  be  pre- 
sented for  allowance  by  the  court.  Jesufi 
V.  Wabash,  St.  L.  &*  P.  R.  Co.,  44  Fetl.  Rep. 
663. 

And  in  such  case  where  suit  is  com- 
mtnced  in  a  state  court  to  recover  for  in- 
jur es  to  realty  caused  by  the  tort  of  the 
receiver,  the  federal  court  appointing  the 
rccei\er  should  restrain  the  prosecution  of 
the  suit,  and  require  the  claim  to  be  pre- 
sented to  the  federal  court.  Jesiifi  v.  Wa- 
has/i,  St.  L.  &*  P.  R.  Co.,  44  Fed.  Refi.  663. 

Mere  appearance  in  the  state  court  by 
the  purchaser  is  not  a  waiver  of  his  right 
t'  have  the  suit  restrained,  where  the  na- 
ture of  the  proceeding  was  not  developed 
until  the  motion  was  made,  and  then  the 
jurisdiction  of  the  federal  court  was  imme- 
diately invoked  by  the  purchaser.  Jesufi  v. 
ll'abas/i,  St.  L.  Sf  P.  R.  Co.,  44  Fed.  Rep, 
663. 

114.  ExiMtiiit;  liens  not  afTected.— 
Plaintiff  filed  a  statement  for  a  mechanic's 
lien  upon  a  railroad  ;  subsequently  an  action 
was  brought  against  the  company  by  certain 
creditors,  in  which  a  receiver  was  appointed, 
and  afterwards,  in  the  same  action,  certain 
indebtedness  created  by  the  receiver  was 
declared  a  first  lien  upon  the  read,  which 
was  sold  in  payment  thereof.  //</</,  that 
plaiiUitT  was  not  represented  in  his  charac- 
ter as  a  lien-holder  by  the  receiver,  and 
that,  not  having  been  mide  a  party  to  the 
action,  his  lien  was  not  digested  by  the  sale. 
Sntm>  V.  ll'inslim',  54  lOiVii  200,  6  A'.  IV. 
Refi.  191. 

A  sale  under  receivership  proceedings  in 
a  court  having  jurisdictinii  will  be  pre- 
sumed regular  and  to  pass  title  to  the  prop- 
erly. As  against  the  purchaser  no  one  ran 
complain  unless  he  h.is  a  lien  upon  the 
property  at  the  time  of  such  sale.  I'lwas 
Trunk  A'.  Co.  v.  Lt-.cis,  Si  Tex.  1.  16  S.  W. 
Ri'fi.  C.47. 

115.  Ktl'eet  of  sale  on  |ieiidiiiK 
Nlllts.  Tex.  Rev.  St.,  arts.  4263,  4264,  con- 
template that  a  suit  pending  against  a 
railway  corporation  when  its  franchise  and 
other  property  are  sold  may  be  coniinni'd 
against  tiie  directors  or  managers  of  the 
sold-out  company,  and  with  a  view  to  that 
end  provide  that  upon  such  sale  no  suit 
shall  abate  but  "shall  be  continued  in  the 
name  of  the  trustti-^  of  the  sold  out  com- 
pany." /V.nrv  Trunk  R.  Co.  v.  Lewis,  St 
yV.r.  i.ibS.   ir.  lu-fi.  647. 


1208 


RECEIVERS,  110-121. 


^ 


.t . 


tilii 


11  A.  R-::or|;aiiiKntioii  nil  or  sale.— 

Afterthecortfirmation  of  a  sale  by  a  receiver 
of  a  railroad,  a  reor};atnzation  is  authorized 
under  How.  Mich.  St.,  §  3314.  Desler  v. 
Jioss,  85  Mich.  370.  48  A^.  IV.  Rip.  530. 

IT  ACTIONS  BT  OR  A0AIH8T. 

I .  Suits  by  Receivers. 

117.  Recelvep's  ri|;lit  t«  hiio,  gcii- 
ernlly. —After  a  decree  had  been  pro- 
nounrcd  directing  the  appointment  of  a 
receiver,  but  before  the  appointment  was 
completed  defendant  company  had  made  a 
payment  to  a  creditor,  alleged  to  be  a 
fraudulent  preference,  and  moved  for  an 
order  that  the  receiver  sliould  take  pro- 
ceedings to  recover  the  money  so  paid. 
Held,  tliat  as  the  payment  com|)lained  of 
took  place  before  the  actual  appointment 
of  the  receiver,  it  was  more  reasonable  that 
those  who  were  interested  at  tlie  time  the 
payment  was  made,  parties  to  tlie  suit,  and 
who  objected  to  what  had  been  done,  should 
in  person  apply  for  the  appropriate  relief. 
Fox  v.  Nipissitig  R.  Co.,  29  Grant's  C/i.  (17. 
C.)  II, 

118.  Ili|;lit  of  receiver  to  sue  in  his 
own  imiiie.  —  A  receiver  of  a  railroad 
may  file  a  bill  in  his  own  name  to  protect 
the  rights  and  franchises  of  the  company, 
and  to  enjoin  officers  of  the  stale  from 
transferring  to  others  lands  which  had  been 
granted  the  company  by  the  state,  and  sub- 
sequently declared  forfeited.  Davis  v.  Gray, 
\(>  Wall.  (V.  S.)  203,  j^.l/H.  Ry.  Rep.  134.— 
DisTlNOUlsiiKD  IN  Hagood  V.  Southern. 
117  U.  S.  52. — Franhle  v.  Jacfcson,  30  Fed. 
Rep.  398. 

Unless  the  law  of  the  state,  or  the  order 
appointing  liiiti,  authorizes  a  receiver  to  sue 
ill  liis  own  iianu",  he  cm  sue  only  in  the 
iianic  of  the  person  in  whom  the  right  of 
action  e.\istc(l  Ix-fore  Ins  appointment ;  but 
l)y  2  Ind.  K(  V.  St.,  1876,  §205,  a  circuit  court 
lias  power  to  authorize  receivers  to  i)riiig 
jicii'iMS  in  their  own  names.  Gamer  v.  Kent, 
70  /;/(/.  428. 

And  the  same  power  is  conferred  inTexas 
bv  Sayles'  Civ.  St.,  art.  14^14.  Mathis  v. 
rridhaiii,\  Tex.  Civ.  A  pp.  58,  20  .V.  //',  h;p. 
1015. 

110.  ICi^lit' <*f '■"'ei^ii  reooiverH  to 
Hil*'.  — [Jy  the  comity  of  states  foreign  re- 
ceivers and  trustees  may  sue  in  the  N<'w 
York  courts;  and  tiic  same  in  C!alifi>rnia. 


ruffh  V.  Hurtt,  52  How.  Pr.  {N.  K)  22. 
—  Following  Runk  v.  St.  John,  29  Rarb. 
(N.  Y.)  i^T.— Humphreys  \.  Hopkins.  81  Cal. 
551,  22  Pac.  Rep.  892. 

But  such  comity  will  not  be  so  extended 
as  to  su.stain  a  suit  by  a  receiver  ap()ointed 
by  the  court  of  another  state  replevy  prop- 
erty of  the  debtor  « '•■  icli  v.is  attached  in 
this  state  by  a  resident  creditor,  though  the 
property  was  in  the  actual  possession  of  the 
receiver,  and  brought  by  him  in  the  course 
of  business  from  the  state  where  lie  was  ap- 
pointed. (Thornton  and  McFarlantl,  JJ., 
dissenting.)  Humphreys  v.  Hopkins,  81  Cal. 
551,  22  Par.  Rep.  892.— DISTINGUISHING 
Booth  7/.  Clark,  17  How.  (U.  S.)^22. 

120.  KuitH  by  reecivers  VrU  unpaid 
8iil)Neri|)tionN  to  stoek.  —.A.  law  was 
passed  providing  for  placing  t  ,  il.oad  com- 
pany in  liquidation,  for  the  benefit  of  its 
creditors;  and  the  state  filed  a  bill,  and  a 
receiver  was  appointed  with  power  to  take 
possession  of  the  notes  and  other  evidences 
of  debt,  and  to  sue  for  and  collect  all  moneys 
due  the  company.  He  filed  a  bill  in  his 
own  name  to  recover  of  a  subscriber  the 
amount  he  had  subscribed  to  the  capital 
stock  of  the  company.  Held,  on  demurrer, 
that  the  liability  of  the  subscriber  to  the 
t  ompany  was  purely  a  legal  one ;  and,  that 
even  if  the  receiver  could  maintain  any 
a:tio:i  '.lierefor,  in  his  own  name,  it  would 
be  :>.::  action  at  law,  and  not  in  equity. 
Freeman  v.   Winchester,  18  Miss.  577. 

A  suit  by  a  receiver  in  behalf  of  all  the 
creditors  of  an  insolvent  corporation  against 
all  delinquent  stockholders  upon  their  con- 
tracts of  subscription,  setting  up  the  amount 
of  unpaid  indebtedness  and  the  amount  due 
on  each  stock  subscription,  and  praying  for 
judgment  against  each  defendant  for  su(  li 
an  anunint  as  mi>y  be  necessary  to  pay  oil 
the  indebtedness  of  the  insolvent  corpora- 
tion, is  not  a  misjoinder  of  parties  or  causes 
of  action,  allhoii;.;h  the  subscriptions  tostock 
were  made  at  dilTereni  times  and  places  and 
the  conditions  attached  to  Mie  subscriptions 
were  not  the  same,  and  a, though  the  de- 
fiMises  urged  by  the  v.irious  stoi'khohlers 
were  different.  Miit/iis  v.  Pridhani,  i  Tex, 
Civ.  Af>p.  58,  20  \.   ;;•.  Rep.  1015. 

121.  Suits  iiKainst  stoelilioIderH 
for  iM'iiefit  of  rredilors.— When  a  re- 
ceiver sues  all  the  stockholders  of  an  insol- 
vetii  corporatif)n  to  recover  the  par  value  of 
stoik  purchase!'  below  par,  for  the  benefit 
of  crcilitors  of  'he  corporation,  and  alleges 


RECEIVERS,  122,  123. 


1209 


y.  {N.  Y.)  22. 
|ohn,  29  Rurb. 
hpkins,  81  Cal. 

ic  so  extended 

iver  appointed 

replevy  pro{j- 

is  attached  in 
or,  thougli  the 
isscssion  of  the 
11  in  the  course 
icrc  1  I'  V  MS  ap- 
IcFai  ..iiKi,  J  J., 
lopkins,  81  Cal. 
ISTINGUISHING 

S.)622. 

M  vn  unpaid 

—  A  law  was 
t  r,  I  load  com- 
;  benefit  of  its 
d  a  bill,  and  a 
power  to  take 
nher  evidences 
llectall  moneys 
d  a  bill  in  his 
subscriber  the 
to  the  capital 
d,  on  demurrer, 
bscriber  to  the 
one;  and, that 
I  maintain  any 
name,  it  would 
not  in  equity. 
Miss.  577. 
chalf  of  all  the 
)oration  against 
upon  their  con- 
\  up  the  amount 
the  amount  due 
[md  prayiiifj  for 
i:ndant  for  such 
isary  to  pay  oil 
iOlvcnt  cor|)ora- 
)arties  or  causes 
riptions  to  stock 
:>  and  places  and 
he  subscriptions 
ilu)uj;li  the  de- 
ls stockholders 
''riii/uun,  1  Tvx. 
1015. 

sto(*kliol(l<>rH 
4,— When  a  re- 
icrs  of  an  insol- 
thc  par  value  of 
,  for  the  benefit 
Lion,  and  Mlle^es 


1 


that  he  sues  as  receiver  by  virtue  of  an  order 
of  court,  sets  up  the  total  amount  of  the 
debts  established  against  the  corporation 
and  its  insolvency,  and  the  total  amount  to 
be  realized  in  order  to  liquidate  the  debts, 
an  amendment  enlarging  these  allegations 
and  setting  up  the  date  and  amount  of  ruch 
debt  which  has  been  established  against  the 
corporation,  with  the  name  of  each  creditor, 
is  not  a  new  cause  of  action.  Mathis  v 
rrid/iam,  1  Tex.  Civ.  App.  58,  20  5.  W.  Re^. 
1015. 

a.  Suits  against  Receivers, 
a.  Leave  to  Sue. 

122.  Leave  to  Hiie  necessary.*— The 

general  rule  that  a  receiver  cannot  be  sued 
without  leave  of  the  court  by  which  he  was 
appointed,  applies  to  suits  brought  against 
him  to  recover  a  money  demand,  or  dam- 
ages, as  well  as  to  those  the  object  of  which 
is    to  take   from   his  possession   property 
which  he  is  holding  by  order  of  the  court. 
Barton  v.  Harbour,  4  An:.  &^  Enff.R.  Cas.  1, 
104  U.  S.  126.— DlSTINC.UISHED  IN  Little  V. 
Dusenberry  25  Am.  &  Eng.  R.  Cas.  632.  46 
N.  J.   L.  614.     Followed  in   Brown  v. 
Rauch,   I  Wash.  J^c/J.—Hrown  v.  Ranch,  i 
Wash.  497,  20  Pac.   Rep.  785-    Melendy  v. 
Harbour,  25  Am.  &*  Eng.  R.  Cas.  622.  78  ^a. 
544.— Follow  ED  in  Reed  7'.  Axtell,  84  Va. 
231.  4  S.  E.  Re  ).  tfi7.— Reed  v.  Axtell.  84  Va. 
231, 4  5.  £".  Rep.  587.-Fol;.o'.ving  Melendy 
V.  Barbour.  78  Va.  544.--N'>r  follo  ved  in 
Missouri  Pac.  R.  Co.  v.  Neiswanger,  39  Am. 
&  Kng.  R.  Cas.  47'.  i'  Kan.  621,  21  Pac. 
Rep.  582.— r/<f  Graffenried  v.  Bruns^vick  <S- 
A.  A'.  Co..  57  C,a.  22.     Kennedy  v.  Indian- 
apolis, C.  &-  L.  R.  Co.,  2  Elipfi.  (U.  S.)  704, 

3  /•■»•</.  Rfp.  97.     Rogers  v.  Mobile  &*  O.  R. 
Co..  (  Tenn.)  12  Am.  ^  Eng.  R.  Cas.  442. 

The  (act  that  a  receiver  is  in  possession 
of  a  railroad,  and  is  by  the  order  of  court 
engaged  in  the  business  of  a  common  carrier 
thereon,  does  not  take  his  case  out  of  the 
rule  that  he  is  only  answerable  to  the  court 
by  which  he  was  appointed,  and  cannot  be 
sued  without  its  leave,     linrton  v.  Barkmr, 

4  Am.  &•  Eng.  R.  Ca.i.  1,  104  (/.  .V.  126. 
Leave  to  sue  a  receiver  is  jurisdictional, 

and  cannot  be  waived  by  him.and  under  Cooe 
Wash.  T.,  §  81.  the  question  may  be  raised 

•Whether  leave  to  sue  rereiver  is  neeessary, 
sfc  notes.  5  Am.  St.  Rkp.  3K';  '7  Am.  &  Em;.  R. 
Cas.  305. 


at  any  stage  of  the  case  in  the  district  or 
suijremc  court.  Brown  v.  Rauch,  i  Wash. 
497,  20  Pac.  Rep.  785.— Following  Barton 
V.  Barbour,  104  U.  S.  126. 

123.  Leave  to  sue  unnecessary.— 
The  owner  of  a  locomotive  may  maintain 
replevin  for  it  against  the  agent  of  a  rail- 
road corporation,  whose  property  is  in  the 
hands  of  receivers,  without  obtaining  leave 
of  court,  if  the  corporation  has  no  interest 
in  the  engine,  although  it  is  used  on  the 
railroad.  Hills  v.  Parker,  in  Mass.  508.— 
Distinguishing  Wiswall  v.  Sampson,  14 
How.  (U.  S.)  52 ;  Russell  v.  East  Anglian 
R.  Co.,  3  Macn.  &  G.  104 ;  Noc  v.  Gibson,  7 
Paige  (N.  Y.)  513;  Robinson  v.  Atlantic  & 
G.  W.  R.  Co.,  66  Pa.  St.  160.— Quoted  in 
St.  Joseph  &  D.C.  R.  Co.  v.  Smith,  19  Kan. 

225. 

When  a  receiver  appointed  by  a  federal 
court  resigns  during  the  pendency  of  a  suit 
brought  against  him  under  permission  of 
the  court  appointing  him,  it  is  not  necessary 
♦  0  obtain  permission  to  prosecute  the  suit 
against  his  successor.  Fordyce  v.  Di.von,  70 
Tex.  694.  8  5.  W.  Rep.  504. 

Even  were  it  otherwise,  the  failure  to  ob- 
tain a  renewal  of  the  consent  would  not 
constitute  such  error  as  would  authorize  the 
reversal  of  a  judgment  rendered  against 
such  receiver,  in  the  absence  of  exceptions 
urged  in  proper  time  and  manner,  and  in 
the  absence  of  a  proper  assignment  of  error. 
Fordyce  v.  Vi.von,  70  Tex.  694,  8  S.  W.  Rep. 

504.  .  , 

When  the  same  person  is  receiver  of  one 

railroad  and  lessee  of  anot>.er  and  both  are 
operated  by  him  together,  the  leased  road 
is  not  receivership  property;   and  an  em- 
ploye can  maintain  an  action  ai  law  against 
him,  without  leave  of  court,  vo  recover  for 
injuries  resulting  from  the  negligence  of  his 
servants  in  operating  the  leased  road.     I.y 
man  v.  Central  I't.  P.  Co.,  30  Am.  <S-  Eng. 
R.  Cas.  210.  59  rt.  167.  4  A'.  Eng.  Rep.  7:6, 
10  All.  Rep.  346.— Quoting  Kain  ta  Smith, 
80  N.  Y.  458;  Cowdrey  v.  Galveston,  II.  k 
H.  R.  Co..  93  U.  S.  352.    Quoting  and 
FOLLOWING  Sprague  v.  Smith,  29  Vt.  421.— 
Rk.vif.wkii  in  Turner  v.  Cross,  83  Tex.  218. 
An  actioii  at  law  based  upon  section  3383, 
Vt.  Rev.  Laws,  can  bo  maintained  against 
the  receiver  of  a  tailroad  for  negligence  in 
constructing  a  crossing,  although  leave  was 
nnt  obtained  of  the  court  of  chancery.  Rox- 
Nov  v.  Cenlr.il  I'f.  P.  Co.,  60  I't.  121,  6  N. 
Eng.  AV/i.  534.  "4  A/l.  Pep.  9-- 


rn 


w 


1210 


RECEIVERS,  124,  12S. 


! 


124.  Leave  uiiuecessnry  under  Act 
ol'Coinfressof  1887.— The  third  section 
of  the  judiciary  act  of  March  3,  1887  (24  U. 
S.  St.  p.  554).  authorizing  suits  to  be  brought 
against  rweivers  of  railroads,  without  spe- 
cial leave  of  court,  was  intended  to  place 
receivers  upon  the  same  plane  with  railway 
companies,  both  as  respects  their  liability  to 
be  sued  for  acts  done  while  operating  a 
railroad,  and  as  respects  the  mode  of  ob- 
taining service.  £<ftfy  v.  Lafayette,  49  Fed, 
Rep.  807.  4  U.  S.  App.  247.  I  C.  C.  A.  44 •• 
Fordyce  v.  Withers,  i  Tex.  Civ.  App.  540,  20 
S.  W.  Kep.  766.  Dillingham  v.  Russell,  37 
Am.  &*  Eng.  R.  Cas.  i,  73  Tex.  47.  3  L.  R. 
A.  634,  II  S.  IV.  Rep.  139.  McXulta  v. 
Lockridge,  137  IH.  270,  27  N.  E.  Rep.  4152. 

The  Act  of  Congress  of  Mavch  3,  1887.  § 
3,  providing  that  "  every  receiver  or  man- 
a<;er  ♦  *  ♦  appointed  by  any  court  of  the 
United  States  may  be  sued  in  respect  of  any 
act  of  his  *  ♦  *  without  the  previous  leave 
of  the  court " — held,  to  include  acts  of  a 
former  receiver.  Mc Nulla  v.  Lockridge,  141 
U.  S.  327,  12  Sup.  Ct.  Rep.  II. 

And  the  above  section,  as  corrected  by 
the  act  of  Aug.  13.  1888,  ch.  866,  authoriz- 
ing suits  against  receivers  without  previous 
leave  of  court,  is  .lot  limited  by  section  6 
providing  that  "this  act  shall  not  affect  the 
jurisdiction  over  or  disposition  of  "  pending 
suits.  Texas  «S-  P.  R.Co.  v.  Cox,  145  U.  S. 
593,  12  .Sup.  Ct.  Rep.  905.— APIM.ir.U  l>< 
Brisendcn  v.  Chamberlain,  53  Fed.  Rep.  307. 

Where  a  federal  court  appoints  a  receiver 
for  a  railroad  company  which  was  created 
by  act  of  congress,  an  action  against  re- 
ceivers for  personal  injuries  is  one  arising 
under  tlie  constitution  and  laws  of  the 
United  States,  and  is  only  maintainable, 
williout  leave  of  court,  by  virtue  of  the 
above  act  of  congress.  Texas  &*  P.  R.  Co. 
v.  Cox,  145  C^.  S.  593,  12  Sup.  Ct.  Rep.  905.— 
Following  Pacific  R.  Removal  Cases,  115 
U.  S.  I,  5  Sup.  Ct.  Rep.  1213. 

It  is  the  evident  intent  of  such  act  of 
congress,  that  a  plaintiff  who  has  a  strictly 
lej^al  right  of  iiction  and  a  claim  for  iiii- 
litliiidated  damages  enforceable  against  and 
payalile  out  of  property  which  is  in  the  pos- 
session and  under  the  control  of  a  receiver 
appointed  by  a  federal  court,  shall  not  be 
dcjirived  of  his  action  at  law,  and  of  the 
ri.!j;lit  of  trial  by  jury.  Mi.Xuit.i  v.  Lock- 
ridge, 137  ///,  270,  27  X.  E.  h'ip.  4;  2. 

Where  the(icti.)n  is  hrotiyhi  in  November. 
1887,  for  an  injury  that  oic;inrt<l  iln:  m;.;  i!ic 


preceding  September,  against  a  receiver,  he 
cannot  question  the  right  to  sue  him  in  a 
court  other  than  the  one  in  which  he  was 
appointed.  Southern  Pac.  R.  Co.  v.  Mad- 
dox,  43  Am.  &*  Eng.  R.  Cas.  528,  75  Tex. 
300,  12  S,  W.Rep.%1^. 

Under  the  above  statute  receivers  ap- 
pointed by  the  United  States  courts  in  pos- 
session of  pro[)erty  are  required  to  admin- 
ister it  according  to  the  laws  of  the  state 
where  situated.  Clark  v.  Dyer,%\  Tex.  339, 
16  5'.  U\  Rep.  1061. 

Hut  leave  should  be  obtained  from  the 
federal  court  when  the  suit  appointing  the 
receiver  was  commenced  before  the  act  was 
passed ;  and  a  judgment  rendered  against  a 
receiver  appointed  before  the  passage  of  the 
act,  without  consent  of  the  court,  is  not 
conclusive  as  against  the  receiver,  but  is 
subject  to  the  equity  jurisdiction  of  the 
court  appointing  him.  Missouri  Pac.  R. 
Co,  V.  Texas  Pac.  R.  Co.,  42  Atn.  &*  Eng.  R. 
Cas.  34,  41  Fed.  Rep.  311.— Followed  in 
Missouri  Pac.  R.  Co.  v.  Texas  Pac.  R.  Co., 
41  Fed.  Rep.  316. 

1 25.  KflVt't  of  WHiit  4»r  leave  upon 
jurisdiction  of  ittlicr  courts.— Whore 
receivers  are  appointed  in  ar.other  state  and 
are  operating  a  railroad  there,  they  cannot 
be  sued  in  New  York  by  attaching  property 
found  there.  Killmer  v.  Hobart,  58  How. 
Pr.yy.  r.)452. 

When  the  court  of  one  state  ha.'i  a  radroad 
in  its  possession,  and  has  apijointckl  a  re- 
ceiver to  carry  on  the  business  until  such 
time  as  it  can  be  sold  with  due  regard  to 
the  rights  of  all  perMons  interested,  a  conrt 
of'another  state  has  not  jurisdiction,  without 
leave  of  tlie  court  by  which  the  receiver 
was  appointed,  to  cntertaiti  a  suit  agaii  st 
iiim  for  a  cause  of  a.^tion  arising  111  the  state 
in  which  he  was  appointed  and  in  which  the 
property  in  his  possession  is  situated,  basc^d 
on  his  negligence,  or  that  of  his  servants,  in 
the  perform; 'ice  of  their  duty  in  respect  of 
such  property.  Par  ton  v.  liar  hour,  4  Am. 
<&-  Eng.  R.  Cas.  i,  104  U-  S.  126. 

Where  a  recv  Ivor  is  sued  in  a  district 
other  than  that  where  he  is  appointed,  he 
waives  the  right  to  ob)ect  to  the  jurisdict.on 
by  appearing  and  |)leadM)(^  to  the  merits. 
Texas  &^  /'.  A'.  Co.  v.  Cox,  145  U.  S.  593,  1 .! 
Sup.  Ct.  Rep.  (jor^. 

Defendant  was  ap|>ointed,  by  ,1  decree  of  a 
court  of  Virginia,  receiver  i>(  a  railroad  in 
that  stale.  PlaiiitilT  was  injured  while  a 
p.issenger  on  such  road,  and  hroiii^ht  aciio-i 


il 


ainst  a  receiver,  he 
It  to  sue  him  in  a 
e  in  which  he  was 
tc.  A\  Co.  V.  A/,iti. 
Cas.  528,  75   7Xr. 

itute  receivers  ap- 
tates  courts  in  pos- 
required  to  admin- 
e  laws  of  the  state 
.  nj'c-r.St  7ir^.  339. 

obtained  from  the 
iuit  iippointinK  the 
before  tlie  act  was 
rendered  against  a 

:  the  passage  of  the 
tiic  court,  is  not 

lie  receiver,  but  is 

urisdiction  of  the 

Missouri  Pac.  R. 

42  Am.  6-  Eng.  R. 

ri.— Followed  in 

Texas  Pac.  R.  Co., 

It  ol'lcnve  upon 

f  t'«'Urts.— Whore 
n  ar.other  state  and 
there,  they  cannot 
attaching  property 
'.  Hobart.  58  Hmu. 

state  ha.'i  a  railroad 
as  appointci!  a  re- 
)i!sincss  until  such 
I'ith  due  regard  to 

interested,  a  court 
irisdiction,  without 
ihich  the  receiver 
tain  a  suit  agaii  st 
arising  in  the  state 
d  and  in  which  the 
1  is  situated,  based 

f)f  his  servants,  in 

duty  in  respect  of 
•.   Barbour,  4  Am. 

S.  126. 

lied  in  a  di.stri<:t 
i;  is  appointc'l,  he 
to  the  jurisdict.oii 
n^;  to  the  merits. 
,  145  6/.  S.  593,  li 

d,  by  a  decree  of  a 

r  i'(  a  railroad  in 
I  injiiivd  while  a 
ml  la()iii,'lit  :i(  !iM-i 


RECEIVERS,  126. 


1211 


against  the  receiver  for  damages  in  the  Dis- 
trict of  Columbia.  Held,  that  the  action 
could  not  be  maintained  without  leave  of 
the  court  which  appointed  the  receiver. 
Barton  v.  Barbour,  3  Mac  Art  h.  {D.  C.)  212. 
Approving  Kinney  f.  Crocker,  18  Wis.  74; 
Allen  V.  Central  R.  Co.,  42  Iowa  6S3. 

Where  a  receiver  is  in  possession  of  land 
under  a  decree  of  the  circuit  court  of  the 
United  States,  no  action  can  be  maintained 
in  the  state  courts  to  recover  possession  of 
such  land.  //.  Wayne,  M.  &•  C.  R.  Co.  v, 
Millett,  17  Am.  &•  Etig.  R.  Cas.  293,  92  Ind. 
535.— Distinguishing  Ohio  &  M.  R.  Co,  v. 
Nickless,  71  Ind.  271. 

It  is  not  essential  to  the  jurisdiction  of 
a  court  of  law,  in  an  action  for  damages 
ai^ainst  a  defendant  corporation  which  is  in 
the  hands  of  a  receiver,  that  leave  to  prose- 
cute should  first  be  obtained  of  the  court 
appointing  the  receiver.  Allen  v.  Central 
R.  Co.,  42  /o7m  683.— Appkovki)  in  Uarton 
7/.  Harbour,  3  MacArih.  (D.  C.)  212.  Di.- 
NiKiJ  in  Thompson  v.  Scott,  4  Dill.  \V.  S.) 
508.  Revikwki)  in  Lyman  7'.  Central  Vt. 
R.  Co.,  59  Vt,  167. 

A  state  rjurt  has  jurisdiction  of  an  action 
against  a  receiver  of  a  railroad  appointed  by 
a  federal  court  sitting  in  the  state,  for  an 
injury  caused  by  the  negligence  of  one  of 
the  employes,  without  obtaining  leave  from 
the  Inderal  court,  khinty  v.  Crocker,  18 
Wis.  74. — Ari'KDVi'.n  in  Marton  ?'.  Harbonr, 
3  MacAiih.  (I).  C)  21::.  yiiDTKi)  IN  St. 
Joseph  i  L.  C.  R.  Co.  v.  Smith,  19  Kan. 
22  c 

An  allegation  i"  an  answer,  that  the  de- 
fendant is  a  receiver  duly  appointed  hy 
another  court,  raises  no  question  as  to  the 
jurisdiction  of  the  court  in  which  the  answer 
is  IiIkI.  St.  Joseph  &^  D.  C.  R.  Co.  v.  .S;«////, 
19  Ran.  225. 

A  county  treasurer  filed  a  petition  in  a 
state  court  against  a  company,  and  its  re- 
ceiver appointed  by  a  federal  court,  to  re- 
cover ta.xes.  The  petition  alleged  the  ap- 
pnintmeiit  of  the  receiver  and  his  possession 
and  control  of  the  road.  The  i-om|iany  and 
receiver  filed  a  joint  answer,  in  which  they 
admit  >hat  a  portion  of  the  taxes  are  prop- 
erly iliaii;eahle  against  tlie  company,  aiwl 
consent  tlial  judgment  may  be  rendered 
ngainst  iliem  for  that  amount,  and  iilsf)  al- 
lege the  appointment  of  the  receiver,  ili.it 
he  is  not  amenable  to  the  process  of  the 
state  court,  and  pray  that  as  10  him  the 
suit  mav  be  dismissed,    //e/d,  that  the  state 


court  had  jurisdict'on,  and  properly  ren- 
dered judgment  against  the  receivi.-r.  .V/. 
Joseph  &*  I).  C.  R.  Co.  v.  Smith,  .')  Kan. 
225.— yuoTiNG  Hill  V.  Parker,  iii  Mass. 
50S;  Kinney  v.  Crocker,  18  Wis.  74;  Hlu- 
menthal  v.  Uraii-'  ril,  38  Vt.407  ;  Chauiauqiie 
County  Bank  v.  Risley,  19  N.  Y.  369 ;  Aston 
V.  Heron,  2  M.  &  K.  390. 

The  superior  court  of  one  county  will  not 
order  the  abatement  of  a  nuisance  erected 
by  a  railroad  corporation  (the  same  being 
caused  by  the  defective  construction  of  a 
trestle  and  culvert  on  the  line  of  the  road), 
when  all  the  corporate  property  is  in  the 
hands  of  a  receiver  appointed  by  the  su- 
perior court  of  another  county.  Brown  v. 
Carolina  C.  v .  Co.,  83  A'.  Car.  128. 

12(1.  LtMivo  tu  N«iu  ill  another 
court' — A  federal  court  having  appointed 
a  receiver  of  a  railroad,  will  not  grant  per- 
mission to  sue  him  out  of  its  jurisdiction. 
Central  Trust  Co.  v.  Wabash,  St.  /,.  d~  /'. 
R.  Co.,  23  Fed.  Rep.  858.  Atlantic,  M.  &* 
O.  R.  Co's  Case,  4  Hughes  {U.  S.)  157. 

Aftor  ilie  appointment  of  a  receiver  of  a 
company  by  a  United  States  court,  at  the 
suit  of  certain  bondholilers,  and  possession 
taken  by  such  receiver,  bondholders  secured 
by  deed  of  trust  tiled  a  bill  in  a  state  coui. 
to  enjoin  the  collection  of  a  personal  prop- 
erty tax  of  the  corporation  by  the  sale  of 
the  mortgaged  property,  and  to  enjoin  the 
receiver  from  paying  the  same  out  of  assets 
in  his  hands,  //eld,  that  the  fact  that  the 
property  sought  to  be  made  liable  for  the 
taxes  was  in  the  possession  of  the  United 
St.ites  court,  could  not  affect  the  jurisdiction 
of  the  slate  court  as  to  the  subject-matter, 
and  that  perniissicm  to  sue  the  receiver  in 
the  stale  court  might  be  presumed  from  the 
fact  of  no  objection  being  made.  Carter  v. 
R'odeti'ald,  108  ///.  351. 

An  action  may  be  brought  in  a  state  court 
against  a  receiver  of  a  railroad,  hy  permis- 
sion of  the  federal  court  which  appointed 
him,  for  the  breach  of  a  contract  lor  the 
purchase  of  ties  made  hy  the  railroad  com- 
pany bef(jre  the  ap()ointmcnt  of  the  receiver. 
/larding  v.  A'ettleton,  .S6  it/:>.  658. 

The  judgment  of  the  slat<:  court  cannot 
he  enforced  against  the  property  of  the 
corporation  in  the  hands  of  the  receiver, 
hut  must  be  presented  to  the  United  States 
court  for  allowance,  and  ilie  latter  court 
will  deti'iinine  the  manner  and  time  of  pay- 
in;,;  \i  out  of  the  assets  of  the  road,  //ard' 
iiig  \.  Nclthton.  86  Mo.  658. 


1213 


RECEIVERS,  127,  128. 


127.  Application  for  Icnvo.— A  pe- 
tition of  a  sliip|)er,  whom  the  receiver  liad 
ciiiirgcd  more  ilian  tiic  statutory  rate,  to  be 
allowed  to  sue  the  receiver  In  this  court  in 
rc.s|)ect  of  such  excess,  grantccl.  In  re  AIcEl- 
nlt/i,  2  Dill.  ( U.  S.)  460. 

Where  it  is  desired  to  sue  a  receiver,  the 
proper  practice  is  to  apply  to  the  court  ap- 
pointing him,  by  petition,  setting  forth  the 
nature  of  the  demand,  when  tlie  court  will 
fitlier  retain  tlie  matter  and  direct  a  trial  by 
jury,  or  refer  it  to  a  master,  or  direct  such 
othirr  proceeding  as  it  may  deem  best. 
KeinieJ.y  v.  Indianapolis,  C.  &*  L.  K.  Co.,  3 
I\il.  Hep.  97,  2  Flipp.  (U.  S.)  704. 

As  a  receiver  is  appointed  by  a  court  of 
equity,  the  right  to  a  trial  by  jury  upon  such 
a  |)ic)cecdiit};,  on  a  common  law  cause  of 
action,  is  not  an  absolute  right.  The  grant- 
ing or  withholding  of  the  right  to  a  jury 
rests  in  the  jurisdiction  of  the  court.  Such 
a  proceeding  is  not  "a  suit  at  law,"  within 
the  meaning  of  a  constitutional  provision, 
guaranteeing  the  right  of  trial  by  jury  in 
such  suits.  Kennedy  v.  Indianapolis,  C.  &^ 
L.  A.  Co.,  3  Fed.  Kep.  97, 2  FUpp.  ( U.  S.)  704. 

It  is  not  essential  to  the  validity  of  an 
order  granting  leave  to  bring  an  action 
a^'ainst  a  receiver  that  notice  of  the  appli- 
cation for  the  order  should  be  given  to  the 
parties  in  the  case  in  which  t'lC  receiver 
was  appointe<l.  Notice  of  such  aj»pIication 
to  tiie  receiver  is  sufficient.  PotUr  v.  Bun- 
nell, 20  Ohio  St.  1 50. 

Petitioners  claimed  to  have  supplied  a 
former  receiver  of  a  road  with  materials  for 
the  use  of  the  road,  and  applied  to  the 
chancery  court  for  an  order  directing  the 
present  receiver  to  pay  for  the  same,  and  for 
an  order  giving  leave  to  sue  him  at  law  for 
<laina<;es  by  reason  oi  a  failure  to  carry  out 
another  contract  for  other  materials  made 
by  the  former  receiver.  Held,  tiiat  the 
rnurt  would  not  grant  the  motum  until  it 
Im(I  made  a  preliminary  examination  as  to 
wlictlier  the  matter  could  be  disposed  of  in 
its  own  court ;  that  the  present  receiver  is 
not  liable  as  such  to  be  sued  at  law  on  tlie 
contracts  of  the  former  receiver,  and 
whether  the  property  in  his  hands  is  bound 
by  such  contract  is  a  question  whicli  the 
equity  court  can  determine.  Lc/iii;li  C.  <Jf 
A'.  Co.  V.  Central  K.  Co.,  38  A'.  J.  Eg.  175. 

An  application  to  a  superior  cniirl  to  be 
allowed  to  bring  an  action  against  a  receiver 
in  a  cause  pending  in  sui  n  citurt  is  a  special 
proceeding  within  tlie  meaning  of  the  stat- 


ute governing  appeals,  and  an  order  denying 
such   application  is  appealable.     Meeker  v. 
Sprat,'Uf,  5  l\'as/i.  242,  31  I'ac.  Rep.  628, 
1 28.  UiNrrvtioii  to  i;rant  <>r  rvt'iiso. 

If  the  adjustment  of  a  demand  against  a 
receiver  involves  any  dispute  in  regard  to 
the  facts  on  which  his  liability  depends,  or 
in  regard  to  the  amount  of  the  damages  sus- 
tained, a  court  of  etpiily,  in  a  proper  case, 
in  the  exercise  of  its  legal  discretion,  either 
of  its  own  motion  or  on  the  demand  of  the 
party  injured,  may  allow  him  to  sue  the  re- 
ceiver in  a  court  of  law,  or  direct  the  trial  of 
a  feigned  issue  to  settle  the  contested  facts. 
liarton  v.  Harbour,  4  Apn.  &*  Eng.  A'.  Cas. 
I,  104  17.  S.  126. 

A  person  must  seek  redress  for  a  tort 
committed  by  a  receiver  in  the  court  ap- 
pointing him,  and  must  submit  to  the  prac- 
tice prevailing  in  that  court.  The  court 
may  direct  a  trial  by  jury,  refer  the  matter 
to  a  master,  or  take  such  other  action  as  it 
may  regard  most  appropriate;  but  this  rests 
in  the  discretion  of  the  court.  So  the  court 
refused  a  motion  for  a  trial  by  jury  in  a 
claim  against  a  receiver  for  negligently 
causing  death.  Kennedy  v.  Indianapolis,  C. 
&^  L.  A.  Co.,  2  FUpp.  ( U.  S.)  704,  3  Fed.  AV/. 
97.     Thompson  v.  Scott,  4  Dill.  (U.  S.)  508. 

A  receiver  <is  such  cannot  be  sued  else- 
where than  in  the  court  in  which  he  was 
appointed,  without  leave  of  such  court  had 
and  obtained ;  and  whether  leave  to  sue 
will  be  granted,  rests  in  the  discretion  of 
the  court.  This  rule  is  not  affected  by  the 
constitutional  right  of  citizens  to  sue  in 
federal  courts  in  certain  cases.  Aeed  v. 
Aichmond&^A.  R.  Co.,  (  Va.)  33  Am.  &•  Eng. 
A.  Cas.  503.  4  S.  E.  Alp.  587. 

Where  an  injury  results  from  the  default 
or  misconduct  of  a  receiver  appointed  by  a 
court  of  equity,  while  acting  under  C()U)r 
of  authority  of  the  court,  and  there  is  no 
dispute  as  to  the  power  of  the  court  to 
make  f.he  order  iiiidei  which  he  claims  to 
have  acted,  the  court  may,  in  its  discretion, 
either  take  cognizance  of  the  question  of 
the  receiver's  liai)iiity,  and  determine  it.  or 
permit  the  aggrieved  party  to  sue  at  law. 
But  if  the  power  of  the  court  to  make  the 
Old;'!  \.\  dis[)uted,  th»*  court  then  has  no 
clK>ice  ;  it  must  assume  exclusive  jurisdic- 
tion, and  iniiibii  the  aj^grieved  person  froru 
seeking  red  ess  as;ainst  the  rccf^iver  in  any 
i)ih>'r  tribunal,  h'/fin  wjavett,  26  N.J.  Eg. 
474  '•  iiffiriiied  in  27  X.  J.  lu/.  550. 

A  person  iiaving  a  legal  cause  of  action 


RECEIVERS,  130-131. 


1213 


dcr  deiiyinijr 
Meektr  v. 
\ep.  628. 
or  rvliiHO. 

(1  against  a 

n  regard  to 

depends,  or 

amagcs  sus- 

proper  case, 

elion.  eiilier 

mand  of  the 

o  sue  the  re- 

ctthc  trial  of 

tested  facts. 

Eng.  K.  Cas. 

for  a  tort 
he  court  ap- 
t  to  the  prac- 

The  court 
r  tlie  matter 
'  action  as  it 
but  tiiis  rests 
So  the  court 
by  jury  in  a 
■  negligently 
dianapolis,  C. 
>4,  3  Fed.  Rep. 

1  (U.  S.)  508. 
be  sued  else- 
vhich  he  was 
icli  court  had 
leave  to  sue 
discretion  of 

Tected  by  the 
ns  to  sue  in 
ses.  Reed  v. 
}  Am.  &•  Eng. 

11  the  default 
ipointed  by  a 
;  under  color 
i  there  is  no 
the  court  to 
lie  <lainis  to 
its  discrt'iion, 

2  question  of 
tcrniine  it,  or 
)  sue  ill  law. 
to  make  the 
then  has  no 
sive  jiiiisdic- 

pcrson  from 
civi-r  ill  any 
'.  26  A".  /.  Eg. 

5  so- 
use of  action 


sounding  merely  In  tort,  against  a  receiver 
appointed  by  the  court  of  chancery,  has  a 
rij,'lit  to  pursue  his  redress  by  an  action  at 
1  iw.  Such  action  cannot  be  brought  with- 
out the  pcrnfiissioii  of  the  chancellor,  but 
such  permission  cannot  be  refused,  unless 
the  claim  preferred  be  manifestly  unfounded 
and  vexatious,  Palys  \.Je7vett,  32  A'.  J.  Eq. 
302  ;  reversing  on  another  point  30  A'.  /.  Eq. 
604. -Followed  in  Little  v.  Dusenberry, 
25  Am.  &  Eng.  R.  Cas.  632,  46  N.  J.  L.  614. 

Where  a  court  of  equity  has  regularly 
secured  jurisdiction  in  a  suit  against  an  in- 
solvent corporation,  and  has  appointed  a 
receivep,  an  application  made  by  a  party  for 
permission  to  sue  the  receiver  is  addressed 
to  the  sound  discretion  of  the  court,  and  an 
order  denying  such  application  will  be  up- 
held, unless  it  is  made  to  appear  that  the 
discretion  has  been  abused.  Meeker  v. 
sprite  ue,  5  Wash.  242,  31  Pac.  Rep.  628. 

121>.  Siiiniir  without  leave— Con- 
tempt*— Any  one  instituting  suit  against 
a  receiver  in  another  court,  without  previ- 
ous leave  of  the  court  appointing  him,  may 
be  attached  forcontcmpt  or  enjoined.  Ken- 
nedy  v.  Indianapolis,  C,  &"  L.  R.  Co.,  3  Fed. 
Rep.  97,  2  Flipp.  {U.  S.)  704.  Thompson  v. 
Scott,  ^  Dill  (U.  S.)  508.— Denying  Allen 
V.  Central  \\.  Co..  42  Iowa  683. 

In  an  action  against  a  railroad  company 
for  injuries  received,  the  company  cannot 
plead,  either  in  bar  or  abatement,  that  it  is 
in  the  hands  of  a  receiver,  and  that  the  suit 
was  brought  without  obtaining  leave  of  the 
court  by  which  such  receiver  was  appointed, 
thougli  liringing  the  action  without  leave 
may  have  been  a  contempt.  Ohio  &^  M. 
R.  Co.  V.  Nickless,  71  Ind.  271.— DisriN- 
GUisiiEU  IN  Ft.  Wayne,  M.  &  C.  R.  Co.  v. 
Mellett,  17  Atn.  &  Eng.  P.  Cas.  293,92  Ind. 

535- 

130.  Eiijoiuiiii;  or  Ntayiiie  »n\t* 
without  leave.— Where  a  receiver  is  sued 
at  law.  without  leave  of  the  court  appoint- 
ing him,  if  he  desires  the  protection  of  the 
court  appointing  him,  he  must  apply  for  an 
injunction  :  and  if  he  fails  to  do  so,  the  ac- 
tion at  law  may  proceed  as  though  permis- 
sion to  bring  the  same  had  been  received. 
Camp  V.  Barney,  4  Hun  N.  V.)  373.  (>  T.  &* 
C.  622. 

The  rule  that  a  receiver  of  one  court 
cannot  be  sued  in  another  without  the  con- 
sent of  the  court  appointing  him  has  been 
changed  both  by  the  act  of  congress  and 
the  State  law  ;  but  both  of  these  acts  protect 


the  courts  having  jurisdiction  of  the  original 
cause  in  which  the  receivership  is  being 
conducted,  in  the  due  administratitjn  there- 
of, and  enable  them,  in  the  e.xercisc  of  their 
general  ctpiity  powers,  to  prevent,  by  iii- 
jimction,  any  interference  with  or  diver- 
sion of  tlie  property  in  the  hands  of  the 
receiver.  E'ordyce  v.  Withers,  1  Tex.  Civ. 
App.  540,  20  >'.   W.  Rep.  766. 

An  action  at  law  for  an  injury  is  main- 
tainable although  the  defendant  is  receiver 
instead  of  lessee  of  the  railroad  where  the 
injury  occurred.  In  such  case  it  is  not  a 
question  of  jurisdiction  in  the  courts  of  law, 
but  only  whether  equity,  on  application  of 
the  receiver,  will  exercise  its  own  jurisdic- 
tion of  restraining  suits.  And  if  equity  in- 
terposes, the  injunction  is  in  personam  di- 
rected to  the  party  but  not  to  the  court. 
Lyman  v.  Central  I't,  R.  Co.,  30  Am.  &* 
Eng.  R.  Cas.  210,  59  F/.  167,  4  A'.  Eng.  Rep. 
726,  \oAtl.  Rep.  346.— Quoting  Blumenthal 
V.  lirainerd,  38  Vt.  402  ;  Newell  v.  Smith,  49 
Vt.  255.  Reviewing  liallou  t/.  Farnum,  9 
Allen  (Mass.)  47  ;  Allen  v.  Central  R.  Co., 
42  Iowa  C83. 

b.  Procedure. 

131.   •Turlsdictioiial    qiie.stioiiM. — 

Where  a  statute  gives  the  federal  courts 
jurisdiction  of  all  suits  between  a  railroad 
company  and  the  inhabitants  of  the  Indian 
tribes  through  whose  territory  the  road  runs, 
the  jurisdiction  will  extend  to  suits  between 
receivers  of  the  road  and  such  inhabitants. 
dm/en  v.  Harlev,  56  /-Vv/.  Rep.  973. 

It  is  within  the  discretionary  power  of  a 
court  appointing  a  receiver  to  investigate  a 
claim  for  damages  growing  out  of  the  negli- 
gence of  a  receiver,  or  to  allow  a  suit  at  law 
to  be  brought  against  the  receiver  for  the 
same,  and  when  established  to  the  satisfac- 
tion of  the  court,  to  order  it  paid  as  a  part 
of  the  expenses  of  the  receivership;  hut  so 
long  as  the  claim  exists  in  the  form  of  a 
right  of  av'.ion  for  unliquidated  damages, 
there  is  no  rule  which  would  give  a  court 
of  chancery  jurisdiction  to  hear  and  deter- 
mine the  matter  upon  a  bill  filed  for  that 
purpose.  Wabash  R.  Co.  v.  Bro7vn,  5  ///. 
App.  590. 

Where  such  claim  is  established  either  by 
a  judgment  at  law  or  by  the  allowance  of  a 
court  having  jurisdiction  over  the  receiver, 
then  a  court  of  chancery  may  enforce  the 
lien,  upon  a  bill  filed  for  that  purpose  \  but 


1214 


RECEIVERS,  132-135.. 


11 


I  M 


until  this  is  done  the  court  of  ciiunccry,  in 
order  to  ascertain  whctiicr  or  not  tlio  lien 
exists,  must  first  try  nn  action  on  tiiccasc  for 
ne(;li(;cncc,  and  ascertain  the  amount  of 
damages.  IVabash  A'.  Co.  v.  Brffivn,  5  ///. 
J//.  590. 

VVlierc  receivers  appointed  by  a  court  of 
ciianccry  in  anotiicr  state  are  tliere  liable 
to  actions  at  law  against  them  as  common 
carriers,  they  may  be  likewise  sued  in  Mas- 
sachusetts. Another  state  should  not  ac- 
cord receivers  a  greater  exemption  than 
they  enjoy  under  the  laws  of  the  state  where 
appointed.  Pai^f  v.  SiHt'th,  99  Mass.  395. 
-Kkvikwki)  in  Kain  7'.  Smith,  2  Am.  & 
Eng.  R.  Cas.  545,  80  N.  Y.  458;  Murphy  v. 
Holbrook,  20  Ohio  St.  137. 

Where  a  receiver  ap|>ointcd  by  a  federal 
court  has  l)e(>n  discharged  and  directed  to 
surrender  the  property  to  the  company, 
that  is  a  termination  of  that  court's  exclu- 
sive jurisdiction  over  claims  against  such 
property.  Mobile  ^  O.  A'.  Co.  v.  Davis,  26 
Am.  Gt'  Eng.  R.  Cas.  425,62  Miss.  271. 

Suit  for  personal  injuries  by  an  employe 
may  be  broughtagainst  a  receiver  managing 
a  railway  in  a  county  where  the  railway 
corporation  has  an  office  and  agent.  Ihmim 
V.  Gay,  42  Am.  &*  I'-'ig'  ^-  Cas,  23,76  Tex, 
444.  13  •S'.   "'.  A'e/>.  472- 

132.  lC»c«ivi>r  not  ciititltMl  to  iiii- 
liiiliiity  tlroiii  HiiitH.— Under  certain  cir- 
cumstances it  is  proper  to  direct  an  action 
at  law  against  the  receiver  of  a  street-railway 
corporation  to  determine  the  amount  of 
compensation  or  damages  in  favor  of  one 
having  a  claim  against  it,  yet  the  better  and 
more  common  practice  is  to  apply  for  relief 
by  petition  to  the  court  in  which  the  re- 
ceiver is  acting ;  and  it  is  immaterial  wiicth- 
er  the  damage  was  occasioned  prior  or  sub- 
sequent to  the  appointment  of  the  receiver. 
Pacific  li.  Co.  v.  Wade,  50  Am.  &*  Eng.  A', 
Cas.  362,  91  Ca/.  449,  27  /'ac.  Rep.  768. 

A  receiver,  empowered  by  statute  to 
operate  the  railroad  for  the  use  of  the  public, 
acting  as  a  common  carrier  of  passengers, 
is  not  a  public  officer,  entitled  to  immunity 
as  such,  but  may  be  sued  at  law,  in  his  rep- 
resentative capacity,  by  leave  of  the  court 
appointing  him,  as  the  company  might  be, 
for  negligence  of  hisagents  in  operating  the 
road,  resulting  iti  the  death  of  a  passenger. 
Little  V.  Dusenherry,  25  Am.  &*  Eng.  R.  Cas. 
632,  46N./.  /..6i4.~DlSTiNGUiSHiNO  Bar- 
ton V.  Barbour,  104  U.  S.  126.  Foi.i.owiNo 
Palys  7/.  Jewett,  ^2  N.  j.  Eq.  302.    Limiting 


Cardot  v.  Barney,  63  N.  Y.  281.  Quoting 
Kain  v.  Smith,  80  N.  Y.  458.  Revikwinc. 
Farlow  v.  Kelly,  108  U.  S.  288. — Rkviewkd 
in  Turner  v.  Cross,  83  Tex.  218. 

133.  ProvcHN,  and  liow  hitvcU.— 
Under  the  provision  of  Arkansas  laws 
which  are  extended  over  the  Indian  Terri- 
tory, receivers  of  a  railroad  in  such  territory 
who  are  sued  there  may  be  properly  served 
by  delivenng  a  copy  of  the  summons  to  a 
station  agent.  Etlily  v.  iMfayette,  49  Fed, 
Rep.  807,  4  U.  S.  A  pp.  247,  I.  C,  C.  A.  441. 
—  F(JLL(nviNG  Central  Trust  Co.  v.  St. 
Louis,  A.  &  T.  R.  Co.,  40  Fed.  Rep.  426. 

Receivers  of  a  railway  by  answering  to 
the  merits  and  going  to  trial  after  a  motion 
to  quash  the  service  is  overruled,  submit  to 
the  jurisdiction,  and  will  not  thereafter  be 
])ermitted  to  question  the  jurisdiction  of 
the  court.  Eddy  v.  Lafayette,  49  Fed.  Rep, 
807,  4  U,  S.  App.  247,  I  f.  C.  A.  441.  — Dis- 
tinguishing Harkness  v.  Hyde,  98  U.  S. 
476. 

134.  Right  of  receiver  to  derend 
siiitH  nt;ainHt  coniimiiy.— It  is  the  duty 
of  a  receiver  of  an  insolvent  company  to 
file  an  answer  to  a  bill  to  foreclose  a  mort- 
gage, although  the  plainiifl  may  be  the 
owner  of  all  the  claims  against  the  corpo- 
ration, and  has,  by  agreement  with  the 
receiver,  entered  into  possession  of  the  rail- 
road, and  also  of  all  the  assets  of  the  com- 
pany. Ryan  v.  Anglesea  R.  Co.,  (N.  J.  Eg.) 
35  ///;/.  &•  Kfig.  R.  Cas.  51.  12  Atl.  Rep.  539. 

The  fact  that  the  receiver  has  not  been 
discharged  confers  upon  him  sufficient  inter- 
est to  justify  him  in  setting  up  a  defense  to  a 
bill  to  foreclose  a  mortgage  upon  corporate 
property,  which  goes  to  the  validity  of  the 
bonds  upon  which  the  suit  is  brought, 
although  he  may  have  parted  with  the  pos- 
session of  the  corporate  property  to  the 
mortgagee,  the  latter  having  become  pos- 
sessed of  all  ilie  claims  against  the  corpora- 
tion. Ryan  t'.  .Inglesea  R.  Co.,  (N.  J.  Eq.) 
3SAm.  «S-  Eng.  R.  Cas.   51,  12  Atl.  Rep. 

539. 

1 3ff.  Joining  receiver  as  defendant 
witii  company.—  The  appointment  of  re- 
ceivers in  a  federal  court  does  not  oust  the 
jurisdiction  which  a  state  court  has  prt*- 
viously  acquired  of  proceedings  against  tiic 
company,  instituted  to  ascer'ain  damages  to 
land,  nor  does  it  operate  as  a  stay  thereof. 
Neither  Is  the  petitioner  bound  to  bring  in 
the  receivers  as  defendants,  as  he  is  seeking 
no  relief  against  them.     It  is  their  business 


RECEIVERS,  130-138. 


1215 


.    Quoting 
Revikwino 
-Rkvikwkd 
8. 

V   Mvrved.— 
rkansas    laws 
Iiiiliiiii  Terri- 
sucli  tt;iT!lory 
<)|)erly  served 
imiiions  to  a 
Vetle,  49  Fed. 
C.   C.  ^/.  441. 
I    Co.   V.  St. 
Rep.  426. 
answering  to 
fter  a  motion 
efl,  submit  to 
thereaftiT  he 
urisdiction   of 
49  /'></•  />>/». 
A.  441.  — Dis- 
yle,  98  U.  S. 

•  to  «i(>r(>ii(i 

It  is  tiie  duly 
coni|)any    to 

close  a  mort- 
may   be   the 

St  the  corpo- 
ent  with  the 
on  of  the  rail- 
;s  of  the  coni- 
0.,  (N.  J.  Eg.) 
At/.  AV/.  539. 

has  not  been 
j(!icient  inter- 
a  defense  to  a 
3on  corporate 
alidity  of  the 
is  brought, 
with  the  pos- 
perty  to  the 
become  po^. 

the  corpora- 
.,U\.J.Eg.) 
12  Atl.  Ref>. 

(Icf'ciulniit 

itment  of  re- 
not  oust  the 
urt  has  prc- 
s  against  the 
)  damages  to 
stay  thereof. 
1  to  bring  in 
le  is  seeking 
leir  business 


I 


to  intervene  and  make  defense,  if  they  wish 
to  do  so.  AMctiiintiU  Trust  Co.  v.  Pittsburgh 
Sf  tV.  A'.  Co..  29  /••<•,/.  AV/.  732. 

The  fact  liiat  a  summons  names  tiie  de- 
fiMidants  as  "  The  Missouri,  Kansas  &  Texas 
Railway  Company,  George  A.  Eddy  and  H. 
C.  Cross,  receivers,"  is  not  conclusive  of  an 
intention  to  make  the  company  a  defendant, 
wlii-rc  the  complaint  sliows  that  it  was  the 
intention  to  make  the  action  one  against 
the  receivers  only.  Proctor  v.  Missouri,  K. 
Sf  T.  A'.  Co.,  42  Afo.  App.  124. 

There  is  no  privity  of  interest  between  a 
railroad  company  and  a  receiver  who  is 
managing  and  operating  its  railway,  and  it 
is  not  error  to  refuse  to  allow  a  receiver  to 
be  made  a  defendant  with  the  company, 
Ki\iiers  V.  Mobile  &*  O.  K.  Co.,  (Tenn.)  12 
Am.  &^  Efi<^.  A'.  Cas.  442. 

I. 'to.  Hiibstitiitiuii  of  receiver  hh 
dt'tV'iidaiit.— During  the  pendency  of  an 
action  against  a  railroad  corporation  for 
alleged  trespass,  a  rcccwcr  pendente  litt  was 
appc^inied  in  an  action  in  the  U.  S.  circuit 
court  to  foreclose  mortgages  which  covered 
all  of  the  corporate  property.  The  receiver 
was  authorized  to  operate  the  road,  protect 
his  title  and  possession,  defend  all  suits 
brought  against  him  and  the  corporation, 
and  intervene  in  any  suits  then  pending ;  and 
was  invested  with  the  authority  usually  con- 
ferred in  like  cases;  the  corporation  was 
enjoined  from  interfering  with  him  in  the 
possession  and  management  of  the  property. 
The  receiver  was,  by  order  of  court,  substi- 
tuted as  defendant  in  the  trespass  suit ;  the 
order  provided  that  the  action  proceed  with 
like  elTect  as  if  originally  commenced  against 
him.  Upon  the  trial  tlie  receiver  moved  for 
a  disn)issal  of  the  complaint  on  the  ground 
that  the  action  could  not  be  maintained 
against  him.  The  motion  was  denied.  Hetd, 
error ;  that  the  receiver  had  no  connection 
with  the  cause  of  action,  and  it  could  not 
be  charged  upon  the  property  in  his  hands. 
Diuker  v.  Gardner,  48  Am.  iS-  I'-n^.  A*.  Cas. 
683,  124  N.  Y.  334.  26  A'.  /•;.  AV/.'8i4,  36  A'. 
Y.  S.  A*.  267.— nisriNtiUiSHl.Nc,  Pickersgill 
V.  Myers,  99  Pa.  St.  602  ;  Combs  v.  Smith, 
78  Mo.  32.  Following  Arnold  v.  Suffolk 
n.ink,  27  Barb.  (N.  Y.)  424. 

i;<7.  Plejulliijf.— In  an  action  against 
a  receiver  for  a  per'ional  injury,  the  declara- 
tion alleged  that  C.  was  the  receiver  of  the 
company  by  appointment  of  a  certain  court 
named,  and  as  such  was  in  possession  of  and 
operating  tiie  road,  and  that  the  employes 


operating  the  trains  were  the  servants  of  C. 
as  receiver,  and  that  on,  etc.,  said  C.  re* 
signed  his  office,  and  on  the  same  day  the 
court  accepted  the  resignation  and  ap- 
pointed M.,  the  defendant,  receiver,  as  the 
successor  of  C,  and  that  M.  qualified  as 
such,  and  entered  upon  his  duties  as  suCh 
successor.  Held,  that  a  plea  of  not  guilty 
admitted  not  only  the  representative  char- 
acter of  the  defcnlant  at  the  time  he  was 
sued,  but  also  the  other  allegations  of  the 
declaration  in  respect  to  the  appointment 
of  C.  as  receiver,  his  resignation,  and  the 
appointment  of  the  defendant.  McNulta  v. 
Lockridge,  137  ///.  270,  vj  N.  E.  Rep,  452; 
affirming  32  ///.  App.  86. 

In  an  action  on  the  case  against  a  receiver 
to  recover  damages  for  causing  death,  the 
plea  of  the  general  issue  will  not  put  in 
issue  cither  the  character  in  which  plaintitT 
sues,  or  the  char.icter  or  capacity  in  which 
defendant  is  sued.  McXulta  v.  I.ockridge, 
1 37  ///.  270,  27  A'.  E.  Hep.  452 ;  affirming  32 
///.  App.  86. 

A  complaint  against  a  receiver  to  recover 
land,  which  does  not  show  the  land  to  be  in 
legal  custody,  is  not  subject  to  a  demurrer. 
Ft.  Wayne,  M.  &-  C.  A'.  Co.  v.  Mellett,  17 
Atn.  &»  Etuf.  R.  Cas.  293,  92  /nd.  535. 

i:i8.  MatterM  of  deliiTiiMO.— Leave  to 
bring  a  suit  against  a  receiver  in  any  form 
reserves  the  right  to  the  receiver  to  set  up 
any  defense  he  may  have,  which  can  be  done 
by  plea,  answer,  or  demurrer.  Davis  v. 
Duncan,  17  Am.  &*  Eng.  R.  Cas.  295, 19  Fed. 
Rep.  477. 

An  administrator  or  receiver,  when  sued 
in  his  representative  capacity,  admits  that 
he  is  rightly  sued  unless  he  files  a  plea 
denying  the  same.  If  he  makes  no  objec- 
tion  to  the  suitagainsc  him  in  his  represent- 
ative capacity,  before  or  on  the  trial,  he 
will  be  precluded  from  afterwards  urging 
that  he  was  not  rightly  sued.  McNulta  v. 
Ensch,  134  ///.  46,  24  A'.  E.  Rep.  613 ;  reverS' 
ing  3t  ///.  App.  100. 

A  receiver  of  a  railroad  has  the  right  to 
set  up,  as  a  defense  against  a  suit  for  injuries 
sustained  from  negligence  in  running  the 
trains  by  such  receiver,  the  statute  that  re- 
quires suits  for  such  negligence  to  be 
brought  against  railroads  within  two  years. 
Jiattlitt  v.  h'eim,  35  Am.  &*  Etig,  R.  Cas. 
1 5,  50  N.  J.  L.  260,  II  Cent.  Rep.  351,  13  Atl. 
Rep.  7. 

A  party  injured  by  a  railroad  operated 
by  a  receiver  may,  by  leave  of  the  cnurt 


1216 


RECEIVERS,  130-142. 


I 


'\l 


il 


I 


Iljl 
illlf 


appointing  tlie  receiver,  brinp  nn  action 
anainsl  liiin  under  the  code  •'  as  receiver," 
and  it  is  no  defense  in  sncli  action  tlial  tlie 
receiver  was  a  public  oliker,  or  tiiat  he  wns 
an  a(;ent  or  u  trustee  ;  but  saiisfaction  on  a 
judt^nient  rendered  ayaiiist  tiie  receiver  can 
be  obtained  only  out  of  tli<!  funds  in  liis 
hands,  as  may  be  directed  by  liie  court 
appointing;  him.  Murphy  v.  Holbrook,  20 
Ohio  St.  137.  -  For.i.owKi)  IN  Davis  T/.  Dun- 
can, 17  Am.  &  I'-ii);.  K.  Cas.  295,  19  Fed. 
Rep.  477.  Ukvikwki)  i.\  Camp?/.  Barney, 
4  Hun  (N.  Y.)  373. 

Defend. mts  being  common  carriers  over 
a  railroad,  it  is  no  defense  to  an  action  at 
law,  for  a  l>reach  of  duty  or  o))ligation  aris- 
in);  out  of  business  intrusted  to  them  in 
that  relation,  that  they  were  running  the 
railroad  as  receivers  under  an  appointment 
of  the  court  of  clianccry.  Bhimenlhal  v. 
liriuneiii,  38  Vt.  402.— QuoiKD  in  St. 
Joseph  &  D.  C.  R.  Co.  v.  Smith,  19  Kan. 
225  ;  Lyman  v.  Central  Vt.  R.  Co.,  59  Vt. 
167.  Kkvikweu  in  Murphy  v.  Holbroui<, 
20  Ohio  St.  137. 

1;M>.  Kvidciicc.  —  a  judgment  recov- 
ered against  a  railroad  company  is  no  evi- 
dence against  the  public  receiver  of  the 
road.      Hopkins   v.    Connel,   2    Tenn.    Ch. 

323- 

After  suit  was  commenced  against  a  com- 
pany for  damages  for  causing  death,  a  sup- 
plemental petition  was  filed  alleging  that 
the  company  had  consolidated  with  another 
company,  the  receivers  of  which  were  oper- 
ating the  road  of  defendant  company.  Hfhi, 
that  a  judgment  against  the  receivers  could 
not  be  sustained  where  the  evidence  failed 
to  show  any  connection  between  the  two 
companies  ;  or  that  the  receivers  were  re- 
ceivers of  the  defendant  road.  Taylor,  li. 
&^  11.  R.  Co.  v.  Warner,  84  Tex.  122,  \<)  S. 
ir.  Rep.  449,  20  >■.  \V.  Rep.  823. 

140  Iiis<rii('tioiiK.  —  In  an  action 
against  a  receiver,  to  recover  damages  grow- 
ing out  of  the  negligence  of  the  servants  of 
defendant's  predecessor,  the  use  of  the 
words,  "  negligence  of  the  defendant,  as 
charged  in  the  declaration,"  and  the  words, 
"  ilic  agents  or  servants  of  the  defendant 
in  charge  of  the  engine  in  question,"  in  the 
plaintilT's  instructions,  are  not  strictly  accu- 
rate; but  when  it  is  evident  tnat  the  word 
"  defendant "  referred  to  the  receiver  in 
charge  at  the  time  of  the  injury,  and  was  so 
understood  by  the  jury  and  the  defendant, 
the  error  will  not  be  so  serious  as  to  require 


a  reversal.    Mc Nulla  v.  Lockritige,  137  ///. 
270,  27  ;V,  [•'..  Rip.  452. 

141.  J  ml  tf  III  1^  II  t,  and  how  oii- 
forct'il.— A  jiidgmeni  against  a  receiver 
creates  no  personal  liability  against  him, 
and  it  should  be  entered  asenforcerl  against 
the  funds  of  the  corporation  chargeable  to 
him  as  receiver.  Il  is  error  lo  render  jiick;- 
mcnt  against  him  individually,  and  no  :iwa>d 
of  execution  should  be  made.  McXiill.i  \\ 
limch,  134  ///,  46,  24  A'.  E.  Rep.  613;  re- 
7rrsin^  31  ///.  ////.  100.  McXulta  v.  Lock- 
ritlt^f,  137  tH-  270,  27  i^'-  I'-  R'P-  452.— 
yuoTiNd  Farmers'  L.  !k  T.  Co.  v.  Central 
R.  Co.,  7  Fed.  Rej).  539. 

A  judgment  in  an  a<tion  against  a  re- 
ceiver, for  a  liability  incurred  by  his  prede- 
cessor, that  the  plaintilT  "  have  and  recover 
of  and  from  the  said  defendant,  A.  B.,  re- 
ceiver of  the  W.  Railway  Company,  the  said 
sum  of  (16000,  as  his  damages,  as  aforesaid, 
to  be  paid  in  due  course  of  administration 
of  the  trust,  together  with  his  costs,"  award- 
ing no  execution,  is  not  a  personal  judg- 
ment against  the  receiver,  but  is  in  the 
nature  of  a  judgment  in  rem  against  the 
matters  of  the  receivership,  (  r  the  fund  and 
property  which  are  the  subjects  of  ihcr  trust. 
Mc  Nulla  v.  /.oekriiitit,  1 37  ///.  270,  27  N.  /:. 
Rep.  452.— QIj'oTING  Davis  ?'.  Duncan,  19 
Fed.  Rep.  477. 

In  a  suit  against  receivers  and  a  railway 
;ompany  for  injuries  from  a  defective  cul- 
vert, the  court  instructed  the  jury  to  find 
for  the  company.  They  found  against  the 
receivers.  The  judgment  only  fixed  the  lia- 
bility and  amount  on  the  receivers  in  their 
otFicial  capacity.  IleU,  not  error,  lloitner 
v.  May  field,  82  Te.x.  234,  18  .V.  W.  Rep.  V),. 
—Following  Ronner  v.  Wingate,  78  Tix. 

333- 

142.  ActioiiH  for  pcrHoiial  inju- 
ries.*— Where  a  petitioner  seeks  to  recover 
damages  against,  a  receiver  appointed  by  a 
federal  court,  the  laws  of  the  state  where 
the  right  of  action  arf)sc  will  govern  as  to 
the  receiver's  liability.  I'.asloti  v.  Houston 
Sf  T.  C.  R.  Co..  32  /•>,/.  Rep.  8(;3. 

Whether  an  action  for  a  railway  i  iry 
lies  against  t]ie  receiver  of  the  companv  in 
whose  employment  it  was  incurred,  qmrre. 
Smith  v.  Poller,  2  Am.  &*  A'wj,'.  R.  Cas.  140, 
46  .Mich.  258.  9  N.  JV.  Rep.  273. 

While  the  receiver  of  .1  railroad  may  be 

*  Actions  against  rcceivirs  for  injuries  sus- 
tained (luring  their  roiitroi,  see  note,  9  Am.  & 
Eng.  R.  Cas.  736. 


iockritlge,  137  ///. 

aiHi    llOW     4<!li. 

jKJiinst  a  receiver 
lility  against  him, 
Isenforccfl  a>{ainst 

tioii  chartfcahlc  to 
lor  Id  reridor  jiidi.;- 
paily,  and  noawaMi 
(adc.     McXiilta  \ . 
K.  Kip.  613;  },•■ 

McXultii  V.  /.(',  /•- 

\'.  /■:  /,•,/.  452.— 

T.  Co.  T.  CcMlral 

tioii  against  a  rc- 

rred  by  liis  prode- 
iiave  and  recover 

fcndant.  A.  B..  re- 
Coin|)any.  the  said 
'ages,  as  aforesaid, 
;  of  administration 

his  costs."  award- 
a  pers(jnal  judg- 
er.  but  is  in  the 
■«  ti-m  against  tiie 
ip. '  r  tlic  fund  and 
ibjects(»f  ih(!  trust. 

7  ///.  270. 27  x.  /:. 

vis  V.  Duncan,   19 

vers  and  a  railway 
ni  a  defective  cul- 
d  the  jury  t<»  find 

found  against  the 
t  only  fi.xed  tiie  lia- 

receivers  in  tiicir 
lot  error.  Honii.r 
18. v.  jr.  Kf/>.  305. 

Wingatc,  78  Tix. 

pcrMoiinl   iitjii. 

•r  seeks  to  recover 
cr  appointed  by  a 
r  the  state  wiierc 

wiil  govern  as  to 
uiston  V.  Houston 
•/>■  «03. 

a  niilway  i  try 
f  the  coiDpaiiy  in 
*  incurred,  quirre. 
!•:»!;.  A'.  C<».f.  140, 
■  273. 

riiilroad  may  be 

s  for  injuries  sus- 
see  note,  9  Am.  & 


RECEIVERS,  143-145. 


1217 


protected  from  an  action  at  law  in  respect 
to  the  property  in  the  possession  of  tlie 
court,  or  in  his  hands  as  its  rcceivci,  or 
from  tlie  c(jiise(iuencesof  an  accident  occur- 
ring in  its  management,  he  is  responsible 
individually  for  llie  carefid  and  proper  man- 
agement of  otiier  property,  the  management 
of  whicii  he  has  vohintarily  assumed  and 
over  which  the  court  has  no  control.  A'<«// 
v.  Stiiil/i,  2  Am.  &^  Kng-  A'.  Lus,  545.  So 
N.  y.  458;  ra>ersiiif;  11  J/iin  552. 

Defendant  and  others  were  ai)pointed  re- 
ceivers of  a  railroad  in  Vermont  by  a  court 
of  chancery  of  that  state,  and,  with  the  con- 
sent and  autliority  of  that  court,  together 
with  anot^^cr  company  leased  a  niilioad  in 
New  York,  agreeing  to  keep  the  pro|)ei  ty  in 
good  repair,  and  to  assume  all  obligations 
of  the  lessor,  "  cither  by  statute  or  at  ctjin- 
mon  law,  as  common  carriers,  wareliousc- 
men,  or  otherwise."  I'laintiiT  was  in  the 
employ  of  the  lessees  on  such  road  and  was 
injured  through  the  fall  of  certain  machin- 
ery. JIM.'  (1)  that  an  action  to  recover  dam- 
ages was  maintainable  against  the  receiver 
alone ;  (2)  that  the  fact  of  his  being  a  receiver 
did  not  atTccthis  liability,  as  he  was  not  in 
possession  of  the  leased  road  as  an  olFiccr 
of  the  court,  but  under  a  contract  simply 
permitted  by  the  court ;  (3)  that  outside  of 
Vermont  the  court  had  no  jurisdiction,  and 
the  receiver  could  not  act  by  virtue  of  his 
olFice  in  New  York;  hence  his  liability  was 
that  of  an  individual.  K'ain  v.  Stnilh,  i 
Am.  &»  Eng.  A*.  Cas.  545,  80  N.  Y.  458 ;  re- 
versing II  Hun  J  $2. 

14:{.  ActioiiM  for  torts  coiiiiiiittcd 
iM>f(irw  rt!ceivcr*H  uppoiiitiiiciit.  — 
Leave  will  not  be  granted  to  bringan  action 
against  a  receiver  of  a  road  for  a  personal 
injury  sustained  long  before  the  a|>point- 
mcnt  of  the  receiver,  and  while  the  road  was 
in  the  hands  of  the  company.  The  action 
must  be  against  the  corporation.  Fimiiue 
Co.  of  Pa.  v.  Charleston,  C.  &*  C.  A'.  Co.,  46 
/■fi/.  Kep.  508. 

An  action  at  law  in  a  state  couit  lies 
against  a  receiver  in  possession  of  the  prop- 
erty and  effects  of  a  railway  corporation,  for 
the  torts  of  the  servants  of  his  predecessor 
in  the  same  receivership.  McXulta  v. 
I.ockriiif;e,  137  ///.  270.  27  N.  E.  AV/».  452; 
ajfirmiiii^r  32  ///.  A/>f>.  86. 

"•An  !i('tion  may  be  maintained  iigainst  the 

receiver  of  a  railroad  company   for  a    tort 

committed   by  the   corporation    before   his 

appointment.       The  judgment,   if   for  the 

6  D.  R.  D.— 77 


plaintiff,  will  be  against  him  as  reccivcr.and 
is  leviable  out  of  the  assets  in  his  hands. 
Coni/is  v.  Smtt/i,  20  ///;/.  (S-  Kfig,  A',  dis. 
2iy),  78  ilA).  32.— DisriNGUl.sHKi)  IN  Decker 
V.  (iardnei,  124  N.  V,  334. 

Where  suit  for  personal  injuries  is  brought 
against  receivers,  asking,  however,  no  per- 
sonal judgment  against  them,  ii  is  unim- 
portant whether  the  defect  causing  the  in- 
jury existed  wlien  the  railway  came  into 
their  hands,  or  whether  tliey  had  been  in 
chatge  a  sufflcicnt  time  to  repair  the  defect. 
lionner  v.  MiiyfuU,  82  Ttx.  234,  18  S.  ly. 
A,/.  305. 

144.  It(>vi4>w  ot'Jii<lt;iii<>iitNni;aiiist 
nM'civfTH.— Under  U.  S.  Kcv.  St.,  )i  709, 
providing  for  a  review  of  a  I'lnal  judgment  of 
a  Slate  court,  where  "any  title,  right,  privi- 
lege, or  immunity  is  claimed  under"  any  au- 
thority under  the  United  Stales,  a  receiver 
of  a  railroad,  appointed  by  a  federal  court, 
who  claims  immunity  from  suit  without 
leave  of  the  court  appointing  him,  may  have 
an  adverse  judgment  on  such  question  re- 
viewed in  the  supreme  court.  AfcNulta  v. 
Lockruige,  141  U.  S.  327,  12  Sup,  Ct.  Hep. 
11. 

Receivers  appealing  in  good  faith  from  the 
judgments  of  the  state  courts  should  not  be 
required  to  give  supersedeas  bonds.  Central 
Trust  Co.  v.  St,  Louis,  A.  6-  T.  A'.  Co.,  42 
Am.  &»  Eng.  R.  Cas.  26.  41  Fed,  Rep.  551. 

X.  AOCOniTS 

14rs.  Right  to  an  nccoiintiiig,  in- 
gpcctioii  of  books,  etc.— A  receiver  of  a 
road  is  an  officer  of  the  court,  and  the  books, 
contracts,  and  accounts  relating  to  his  con- 
nection with  the  road  arc  in  custodia  leg  is, 
and,  therefore,  in  court  to  all  intents  and  pur- 
poses. He  is  a  trustee  of  all  ihc  owners  of 
bonds  and  stocks,  and  of  the  creditors  of  the 
company,  who  arv  his  cestuis  que  trustent, 
and  they  should  be  vllowed  to  inspect  such 
books,  papers, and  ace  >untson  all  reasonable 
applications  made  for  ti.  <  purpose.  I'invler's 
Petition,  9  Abb.  N.  Cas.  ^.V   K.)  268. 

And  where  nn  application  is  made  for  the 
purpose  it  should  be  granted  so  far  as  it 
relates  to  the  books,  iiccounts,  and  contracts 
of  the  receiver,  as  contradistinguished  from 
those  n(  the  company  prior  to  his  ap- 
pointment, unless  some  good  reason  exists 
why  thai  liberty  should  not  be  given.  The 
petitioner  must  be  confined,  however,  to  the 
books,  accounts,  antl  papers  in  the  office  of 
the  company  in  the  jurisdiction  of  the  court, 


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and  he  must  be  confined  to  such  times  for 
examination  as  will  not  interfere  with  the 
business  of  the  corporation.  Fowler's  Peti- 
iion,g  Abb.  N.  Cas.  {N.   Y.)  268. 

146.  How  the  account  should  bo 
kept.  —  Where  a  consolidated  road  includ- 
ing many  leased  roads  or  subdivisions  goes 
into  the  hands  of  a  receiver,  the  sub- 
divisional  accounts  should  be  kept  sepa- 
racvjly,  in  order  that  the  particular  equities  of 
each  one  of  its  divisions,  as  between  them- 
se'^es  may  be  ascertained.  Central  Trust 
C     -■    IVabash,  St.  L.  &•  P.  R.  Co.,  23  Fed. 

Rep.  863. 

147.  Jurisdiction  to  talte  the  ac- 
cou!'  —  .  receiver  of  a  railroad  appointed 
in  a  y  ..  ■\  state  court,  which  is  afterwards 
remci .  .  t<;  a  federal  court,  may  be  required 
to  accoun',  for  funds  coming  into  his  hands 
in  the  latter  court.  Hinckley  v.  Gilman,  C. 
&>  S.  R.  Co.,  100  U.  S.  I  S3. 

A  receiver  cannot  be  required  to  account 
except  in  the  court  which  appointed  him. 
So  where  a  state  court  has  taken  charge  of 
an  insolvent  corporation,  and  hns  appointed 
a  receiver  who  has  taken  possession  of  the 
assets,  a  federal  court  cannot  entertain  juris- 
diction of  a  bill  calling  upon  the  receiver  to 
render  an  account.  Conkling  v.  Butler,  4 
Biss.  {l/.S.)  22. 

148.  Practice  on  receiver's  ac- 
counting.— Three  railroads  were  consoli- 
dated, each  of  different  length.  Each  was 
enjoying  certain  leased  terminal  facilities. 
The  consolidated  company  went  into  the 
hands  of  a  receiver,  who  operated  the  three 
lines  as  a  whole.  In  settling  the  accounts 
of  the  receiver— A*/</,  that  it  was  proper  to 
charge  the  rent  of  the  terminal  facilities  to 
each  road  in  proportion  to  their  respective 
lengths,  though  the  terminal  facilities  and 
rents  were  relatively  unequal.  Union  Trust 
Co.  v.  Illinois  Midland  R.  Co.,  25  Am.  &- 
Ettg.  R.  Cas.  560.  117  U.  S.  434.  6  Sup.  Ct. 
Rep.  809. 

Where  a  railroad  is  consolidated  with 
others,  and  the  consolidated  company  goes 
into  the  hands  of  a  receiver,  stockholders 
who  stand  by  during  a  considerable  time 
that  the  consolidated  line  is  operated  by 
the  receiver,  and  in  silence  see  debts  con- 
tracted for  operating  expenses,  cannot,  on  a 
settlement  of  the  receiver's  accounts,  set  up 
as  an  objection  to  cliarging  such  expenses 
to  their  individual  branch  that  the  sale  by 
which  the  consolidation  was  effected  was 
ilk-gal  and  void.    Union  Trust  Co.  v.  Illinois 


Midland  R.  Co.,  2$  Am.  &*  Eng.  R.  Cas. 
560,  117  U.S.  434.  6  Sup.  Ct.  Rep.  809. 

Wliere  railroad  property  has  been  sold,  an 
order  of  court  requiring  the  receivers  to 
"  pass  their  accounts  before  the  master " 
only  applies  to  such  accounts  as  had  not 
formerly  been  passed,  and  does  not  require 
a  re-examination  of  such  accounts.  Farm- 
ers' L.  <S-  T.  Co.  v.  Central  R.  Co.,  1  Mc- 
Crary  {U.  S.)  352,  2  Fed.  Rep.  751. 

And  where  a  receiver's  report  has  passed 
the  master,  it  can  only  be  attacked  by  a 
direct  proceeding  alleging  error,  fraud,  or 
mistake.  Farmers'  L.  &•  T,  Co.  v.  Central 
R.  Co.,  I  McCraryiU.  S.)  352,  2  Fed.  Rep. 

751- 

And  except  in  extraordinary  cases,  the 
submission  of  his  accounts  by  the  receiver 
to  the  master,  at  frequent  intervals,  whereby 
the  latter  may  ascertain  from  time  to  time 
the  character  of  the  expenditures  made,  and 
disallow  whatever  may  not  meet  his  ap- 
proval, will  be  regarded  as  a  sufficient  ref- 
erence to  the  court  for  its  ratification  of  the 
receiver's  proceedings.  In  extraordinary 
cases,  involving  a  large  outlay  of  money, 
the  receiver  should  always  apply  to  the 
court  in  advance,  and  obtain  its  authority 
for  the  purchase  or  improvement  proposed. 
Cowdrey  v.  Galveston,  H.  &•  H.  R.  Co.,  i 
Woods (U.  S.)  331.— Reviewed  in  Vermont 
&  C.  R.  Co.  V.  Vermont  C.  R.  Co.,  50  Vt. 

SOD. 

A  receiver  should  be  allowed  to  settle  his 
accounts  before  the  court  whose  officer  he 
is.  An  order  directing  him  to  turn  over 
property  to  another  does  not  release  him 
from  the  control  of  the  court,  or  its  right  to 
compel  him  to  settle.  Mabry  v.  Harrison, 
44  Tex.  286. 

140.  What  credits  sltould  be  al- 
lowed, generally. — A  receiver  is  not  au- 
thorized, without  the  previous  direction  of 
the  court,  to  incur  any  expenses  on  account 
of  property  in  his  hands  beyond  what  is 
absolutely  essential  to  its  preservation  and 
use,  as  contemplated  by  his  appointment. 
Accordingly,  the  expenditures  of  a  receiver 
to  defeat  a  proposed  subsidy  from  a  city,  to 
aid  in  the  construction  of  a  railroad  parallel 
with  one  in  his  hands,  were  properly  disal- 
lowed in  the  settlement  of  his  final  account, 
although  such  road,  if  constructed,  might 
have  diminished  the  future  earnings  of  the 
road  in  his  charge.  Cowdrey  v.  Galveston, 
H.  <S-  H.  R.  Co.,  93  U.  S.  352.  9  Am.  Ry. 
Rep.  361. 


RECEIVERS,  150-153. 


1219 


&*  Eng.  R.  Cas. 

a.  Rep.  809. 

has  been  sold,  an 

the   receivers  to 

ore  the   master  " 

aunts   as  had  not 

does  not  require 

accounts.    Farm- 

ral  R.  Co.,  I  Mc- 

Rep.  751. 

eport  has  passed 

»e  attacked   by  a 

error,  fraud,  or 

T.  Co.  V.  Central 

)  352,  2  Fed.  Rep. 

dinary  cases,  the 
s  by  the  receiver 
intervals,  whereby 
rom  time  to  time 
ditures  made,  and 
Jot  meet  his  ap- 
is a  sufficient  ref- 
ratification  of  the 
In  extraordinary 
jutlay  of  money, 
ys  apply  to  the 
tain  its  authority 
vement  proposed. 

<S-  H.  R.  Co.,  I 
EWED  IN  Vermont 
Z.  R.  Co.,  50  Vt. 

owed  to  settle  his 
whose  officer  he 

lim  to  turn  over 
not  release  him 

irt,  or  its  right  to 

abry  v.  Harrison, 

should  be  al- 

:ceiver  is  not  au- 
ious  direction  of 
eiises  on  account 

beyond  what  is 
preservation  and 
lis  appointment, 
ires  of  a  receiver 
ly  from  a  city,  to 

railroad  parallel 
e  properly  disal- 
his  final  account, 
nstructed,  might 

earnings  of  the 
rey  v.  Galveston. 

352.  9  Am.  Ry. 


Where  a  receivership  only  embraces  tiie 
property  which  a  company  strictly  owns, 
and  the  court  takes  possession  of  the  prop- 
erty of  a  leased  line,  not  for  the  benefit  of 
the  company  and  its  creditors,  but  for  the 
benefit  of  the  lessee  and  its  creditors  and 
stockholders,  no  part  of  the  expenses  of  the 
receivership  can  be  properly  chargeable  to 
the  leased  line.  Brown  v.  Toledo,  P.  &*  IV. 
R.  O.,  35  Fed.  Rep.  444. 

Payments  made  by  receivers  while  operat- 
ing a  railroad  to  connecting  roads,  for 
freights  received  belonging  to  them,  "ac- 
cording to  a  necessary  usage  in  the  business 
of  connecting  railroads,"  are  properly  al- 
lowed to  them  as  a  credit.  Meyer  v.  John- 
ston, 8  Am.  &^  Eng.  R.  Cas.  584,  64  Ala.  603. 
—Approving  Cowdrey  v.  Galveston,  H.  & 
H.  R.  Co.,  I  Woods  (U.  S.)  331. 

Among  the  expenses  which  should  be  al- 
lowed him  are  reasonable  fees  for  counsel 
employed  by  him  in  the  proper  discharge  of 
his  trust,  the  cost  of  litigation,  and  the  ex- 
penses in  taking  care  of,  protecting,  and 
repairing  the  property  in  his  charge,  .ylc- 
Lane  v.  Placerville  &*  S.  V.  R.  Co.,  26  Am. 
&•  Eng-.  R.  Cas.  404,  66  Cal.  606,  6  Pac.  Rep, 
748.— Approving  Sacramento  &  P.  R.  Co. 
V.  Superior  Court,  55  Cal.  453. 

The  master,  in  taking  a  receiver's  ac- 
counts, should  allow  debts  paid  for  working 
expenses  which  were  not  regularly  payable 
until  after  his  appointment,  but  not  those 
already  in  default  at  that  time,  which  were 
properly  payable  out  of  the  moneys  to  be 
paid  into  court  according  to  *heir  priority. 
Gooderham  v.  Toronto  &»  N.  /  Co.,  17  Am. 
&*  Eng.  R.  Cas.  339,  8  Ont.  Aj fi.  685. 

If.O.  Counsel  fees— Witness  fees. 
— Where  a  motion  is  made  to  have  a  receiver 
removed,  his  expenses  for  counsel  and  wit- 
nesses in  resisting  the  motion  are  allowable 
as  a  charge  against  the  funds  in  his  hands, 
where  it  appears  that  he  has  acted  in  good 
faith  and  integrity.  Cowdrey  v.  Galveston, 
H.  &>  H.  R.  Co.,  I  Woods  (U.  S.)  331.— Dis- 
tinguished IN  Hand  v.  Savannah  &  C.  R. 
Co.,  17  So.  Car.  219.  Quoted  in  Central 
Trust  Co.  V.  Wabash,  St.  L.  &  P.  R.  Co., 
32  Fed.  Rep.  187. 

A  receiver  was  directed  to  pay  "working 
expenses  and  outgoings  "  of  the  road  only. 
He  paid  $$$.97  for  land  over  which  the  road 
ran,  the  owner  having  threatened  to  obstruct 
the  passage  of  trains  if  not  paid.  On  ap- 
peal the  court  ordered  an  allowance  of  the 
claim,  on  payment  of  costs,  but  refused  an 


allowance  for  solicitor's  fees  for  examining 
the  title,  there  being  no  evidence  to  show 
whether  it  was  such  a  charge  as  would  have 
been  sanctioned  if  the  court  had  been  ap- 
plied to  in  the  beginning.  Gooderham  v. 
Toronto  <S-  N.  R.  Co.,  28  Grant 's  Ch.  {U.  C.) 

212. 

151.  Costs  and  expenses.  —  Under 
Tennessee  Act  of  1852,  to  reach  the  profits 
of  a  railroad  in  the  hands  of  a  receiver  ap- 
pointed by  the  governor,  the  claimant  must 
show  that  his  demand  falls  within  the  term 
"costs. and  expenses"  incident  to  the  re- 
ceivership, as  such  alone  are  authorized  by 
the  statute  to  be  deducted.  Hopkins  v. 
Connel,  2  Tenn.  Ch.  323. 

152.  When  chargeable  with  inter- 
est.—A  receiver  deposited  trust  funds  in 
bank,  and  afterward  checked  them  out,  and 
deposited  in  his  individual  name.  In  set- 
tling his  accounts,  the  court  charged  him 
with  $4300  interest.  The  evidence  did  not 
clearly  show  how  much  of  the  funds  he  had 
so  used,  or  for  what  time.  He  was  called 
on  for  the  information  but  declined  to  give 
it.  Held,  that  the  decree  would  not  be  re- 
versed. Hinckley  v.  Gilman,  C.  &-  S.  R. 
Co.,  100  CI.  S.  153. 

153.  Accounting  with  contractors 
on  death  of  receiver.— Where  parties 
have  entered  into  a  large  contract  with  a 
receiver  of  a  road  to  furnish  materials, 
which  contract  is  not  fully  executed  at  the 
time  of  the  receiver's  death,  but  the  parties 
have  partially  arranged  for  providing  such 
materials,  and  the  court  finds  the  contract 
to  be  improvident  and  in  excess  of  the 
needs  of  the  road,  and  refuses  to  carry  it 
out,  but  orders  an  accounting  so  as  to 
compensate  the  parties  for  any  loss  that 
may  fail  on  them  in  preparing  to  fulfil  the 
contract,  in  making  such  accounting — held: 
(i)  that  it  was  proper  to  treat  the  per- 
formed portions  of  the  contracts  with  the 
receiver  as  settled  and  adjusted,  and  to 
take  into  account  only  the  loss  upon  the 
unperformed  portions  thereof ;  (2)  that 
unpaid  and  unadjusted  claims  of  subcon- 
tractors, arising  upon  breach  of  their  sub- 
contracts, ought  not  to  enter  jnto  the  ac- 
count; (3)  that  advances  to  subcontract- 
ors ought  not  to  be  taken  into  account, 
except  when  materials  were  delivered  upon 
the  subcontracts  so  that  such  advances 
became  expenditures  in  procuring  materials 
for  performing  the  contracts  with  the  re- 
ceiver which  were  annulled  with  the  ap- 


1220 


RECEIVERS,  154-158. 


5^*' 


I    I 


proval  of  the  chancellor.  Little  v.  Vandcr- 
bilt,  (M  /.)  26  Atl.  Rep.  1025;  former 
appeal  M  N.J.  Kg.  669,  12  Atl.  Rep.  188. 

154.  Accoiiiitiiig:  by  stntiitory  re- 
ceiver.— A  trustee  or  statutory  receiver 
cannot  refuse  to  account  because  the  bene- 
ficiary would  get  nothing  if  an  account 
were  had,  by  reason  of  iiis  inability  to  re- 
spond, or  any  other  reason,  such  as  that 
there  are  judgments  against  the  beneficiary 
which  will  absorb  the  produce  of  the  ac- 
count, or  that  he  is  a  statutory  receiver 
whose  duty  it  is  to  report  to  the  governor 
of  the  state,  and  to  whom  he  has  made  a 
report.  The  Tennessee  statute  which  di- 
rects such  v;c^ivers  to  report  to  the  gov- 
ernor does  I.  ot  seem  to  attempt  to  deprive 
the  courts  of  jurisdiction,  and  if  it  did,  it 
would  be  unconstitutional.  Lafayette  Coun- 
ty v.  Neely,  17  Am.  &*  Eng.  R.  Cas.  243,  21 
Fed.  Rep.  738. 

But  where  such  receiver  has  reported  to 
the  governor,  a  court  of  equity  will  not  re- 
quire him  to  account  more  in  detail,  where 
it  does  not  appear  that  there  was  any  show- 
ing of  false  or  fraudulent  conduct,  or  that 
the  beneficiary  has  been  injured.  Lafayette 
County  V.  Neely,  17  Am.  &*  Eftg.R.  Cas,  242, 
21  Fed.  Rep.  738. 

155.  Beforiniugr  errors  iu  account. 
— It  is  a  well-settled  rule  that  unless  excep- 
tions to  receivers'  accounts  are  taken  be- 
fore the  master  they  cannot  afterwards  be 
taken  before  the  court ;  but  this  rule  will  not 
deter  the  court  from  directing  an  account 
to  be  reformed  which  contains  manifest 
errors  or  plainly  improper  charges,  though 
such  errors  or  improper  charges  ought  to 
be  clearly  shown  to  exist,  and  their  charac- 
ter, as  such,  ought  to  be  evinced  by  proofs 
in  the  case,  or  by  their  intrinsic  nature. 
Cowdrey  v.  Galveston,  H.  &*  H.  R.  Co.,  i 
Woods  {U.  5.)  331. 

150.  Appeals  in  accounting  pro- 
ceedings.— A  receiver  of  a  railroad  may 
appeal  from  a  decree  settling  his  accounts, 
though  he  be  not  a  party  to  the  suit, 
Hinckley  v.  Gilman,  C.  5-  S.  R,  Co.,  94  U.  S. 
467.  16  Am.  Ry.  Rep.  217. 

A  receiver  is  an  officer  of  the  court  as 
well  as  the  master,  and  states  his  own  ac- 
counts and  submits  them  to  the  master  for 
inspection  under  the  order  of  the  court,  the 
master  acting  in  the  place  of  the  court,  in 
a  judicial  rather  than  a  ministerial  capacity. 
Strictly  speaking,  exceptions  to  his  report 
do  not  properly  lie  as  they  do  in  settlinc:  the 


accounts  of  other  fiduciaries  ;  nevertheless 
if  the  master  adopts  any  erroneous  princi- 
ple ill  allowing  a  receiver's  account,  the 
court  Oil  petition  will  refer  the  matter  back 
for  correction  ;  and  on  such  petition  it  is 
the  duty  of  the  court  to  review  the  principles 
and  rules  adopted  and  followed  by  the  mas- 
ter in  stating  the  account,  rather  than  in 
examining  the  items  of  the  account  in  dc 
tail,  or  the  evidence  on  which  they  are 
founded.  Cowdrey  v.  Galveston,  H.  &*  H 
R.  Co.,  I  Woods  (£/.  5.)  331.— Quoted  in 
Ex  parte  Carolina  Nat.  Bank,  18  So.  Car. 
289. 

XI.  COMPENSATION. 

157.  Construction   of  statutes. — 

N.  Y.  Act  of  1883,  ch.  378,  §  2,  in  reference 
to  receivers'  fees,  applies  only  to  receivers  of 
corporations  appointed  in  proceedings  in 
bankruptcy,  and  a  receiver  appointed  in  an 
action  to  foreclose  a  mortgage  executed  by 
a  corporation  is  not  entitled  to  the  fees 
specified  in  said  section.  United  States 
Trust  Co.  v.  New  York,  W.  S.  6-  B.  R.  Co., 
25  Am.  &*  Eng.  R.  Cas.  601,  loi  N.  Y.  478, 
9  Civ.  Pro.  113,  5  A^.  £".  Rep.  316. 

The  allowance  of  commissions  to  such  a 
receiver  is  governed  by  the  Code  of  Civ. 
Pro.,  §  3320,  providing  for  the  allowance  by 
the  court  or  the  judge  where  not  "other- 
wise specially  prescribed  by  statute."  United 
States  Trust  Co.  v.  New  York,  W,  S.  &*  B. 
R.  Co.,  25  Am.  &•  Eng.  R.  Cas.  601,  loi 
A^.  Y.  478,  9  Civ.  Pro.  113.  $  N.  E.  Rep. 
316. 

Under  Tenn.  Act  of  1869-70,  ch.  8,  pro- 
viding for  the  appointment  of  the  president 
of  a  delinquent  railroad  company  as  its  re- 
ceiver, his  salary  as  paesident  to  be  his 
compensation  as  receiver,  such  compensa- 
tion is  a  part  of  the  expense  of  operating 
the  road,  and  should  have  been  allowed 
and  retained  in  the  reports  that  the  re- 
ceiver is  required  to  make  to  the  comp- 
troller ;  but  if  he  neglects  to  retain  his  sal- 
ary and  pays  it  into  the  treasury,  the  state 
becomes  his  debtor,  but  the  governor  has 
no  authority  to  order  it  paid.  Relief  can  be 
granted  only  by  a  legislative  act.  Mabry  v. 
Brown,  12  Heisk.  (Tenn.)  597. 

158.  Receiver's  compensation  an- 
alogous to  that  of  guardian  or  trus- 
tee.— The  rule  for  compensating  receivers 
is  not  of  the  same  invariable  character  as 
that  governing  in  the  case  of  trustees;  but 
the  allowance  to  receivers  of  insolvent  cor- 


RECEIVERS.  150-101 


1221 


n 


es ;  nevertheless 
erroneous  princi- 

r's  account,  the 
r  the  matter  back 

ch  petition  it  is 
'iew  the  principles 
lowed  by  the  mas- 

t,  rather  than  in 
he  account  in  dc 
which  they  are 
Ives  ton,  H.  &-  H 
331.— Quoted  in 
lank,  18  So.  Car. 

LTION. 

of  statutes. — 

8,  §  2,  in  reference 
only  to  receivers  of 
in  proceedings  in 
er  appointed  in  an 
rtgage  executed  by 
titled  to  the  fees 
United  States 
IV.  S.  &*  B.  K.  Co., 
601.  loi  N.  K.  478, 

Rep.  316. 

imissions  to  such  a 

y  the  Code  of  Civ. 

or  the  allowance  by 
where  not "  other- 

I  by  statute."  United 

'  York,  IV.  S.  &*  B. 

<tg.  R.  Cas.  601,  loi 
113,  5  A^.  £■.  Rep. 

1869-70,  ch.  8,  pro- 
ent  of  the  president 
I  company  as  its  re- 
>Ksident  to  be  his 
er,  such  compensa- 
[pense  of  operating 
have  been  allowed 
eports  that  the  re- 
make to  the  comp- 
cts  to  retain  his  sal- 
i  treasury,  the  state 
t  the  governor  has 

paid.  Relief  can  be 
ative  act.    Mabry  v. 

•  )  597- 

onipcnsation  aii- 
^uardian  or  triis- 

npensating  receivers 
ariable  character  as 
:ase  of  trustees ;  but 
ers  of  insolvent  cor- 


il 


porations  or  private  partnerships,  in  all 
cases  not  attended  with  peculiar  circum- 
stances requiring  an  augmentation,  should 
be  regulated  by  analogy,  as  near  as  possible, 
to  the  rate  of  commissions  allowed  to  guard- 
ians and  trustees  for  the  performance  of 
like  services.  And  whatever  compensation 
may  be  allowed,  the  order  making  the  al- 
lowance should  be  definite,  that  it  may  not 
be  doubtful  upon  what  basis  or  for  what 
services  the  particular  allowance  is  made. 
Tome  V  Kinff,  (i\Md.  166. 

ir»l>.  Salary. — Where  a  receiver  is  ap- 
pointed for  a  long  line  of  railroad  and  is  re- 
quired to  give  bond  in  the  sum  of  $50,000, 
and  is  charged  with  the  management,  re- 
pairs, and  operation  of  the  road,  and  receives 
and  disburses  $1,700,000  in  twenty-seven  and 
one  half  months,  a  salary  of  $3000  per  annum 
is  inadequate  compensation.  Farmers'  L. 
«^  T.  Co.  V.  Central  R.  Co.,  2  McCrary  ( U. 
S.)  318,  8  Fed.  Rep.  60. 

But  if  such  person  agrees  to  serve  for  the 
above  amount  and  enters  upon  the  duties 
c*  che  office  under  an  order  fixing  his  com- 
pensation at  that  sum,  a  court  of  equity  will 
not  release  him  from  the  agreement  and  add 
to  his  compensation,  unless  it  be  shown  that 
hie  duties  were  more  arduous  than  was  ex- 
pected, or  that  he  performed  services  in  ad- 
dition to  those  ordinarily  required  of  re- 
ceivers. Farmers'  L.  &*  T.  Co.  v.  Central 
R.  Co.,  2  McCrary  {U.  5.) 3 18, 8  Fed.  Rep.  60. 

IGO.  Aniount,  how  fixed. —  An  al- 
lowance to  a  receiver  of  $10,000  for  nearly 
two  years'  services,  where  he  claimed  $1000 
per  month,  was  affirmed  by  the  supreme 
court  of  the  United  States  on  the  ground 
that  the  evidence  as  to  the  value  of  the  ser- 
vices was  conflicting,  and  that  the  lower 
court  was  the  best  judge  of  the  value  of  the 
services.  Hinckley  v.  Gilman,  C.  &*  S.  R. 
Co.,  100  U.  S.  153. 

Two  persons  acted  as  joint  receivers  of  a 
railroad  for  something  over  five  years.  One 
acted  as  manager  of  the  road,  also,  and 
received  a  liberal  salary,  and  his  expenses. 
Tlie  oilier  looked  after  the  finances  of  the 
road.  Held,  that  $75,000  was  sufficient  al- 
lowance for  their  joint  services,  exclusive 
of  the  salary  paid  to  the  one  as  manager. 
Williams  v.  Morgan.  17  Am.  &•  Eng.  R. 
Cas.  217,  III  U.  S.  684,  4  Sup.  Ct.  Rep.  638. 

The  question  of  allowance  to  the  receiver 
for  his  services  is  one  that  properly  belongs 
to  the  master's  office  and  not  to  the  court, 
but  the  court  will  make  the  allowance  where 


the  parties  so  desire,  and  the  master  has 
failed  to  do  so.  Cowdrey  v.  Galveston,  H.  &* 
H.  R.  Co.,  I   Woods  (U.  S.)  331. 

What  another,  even  competent,  person 
would  have  done  the  work  for,  is  not  the 
proper  rule  in  fixing  the  compensation  of  a 
receiver.  It  is  to  be  graduated  somewhat 
by  the  duties,  and  somewhat  by  the  respon- 
sibilities of  the  office.  Cowdrey  v.  Galveston, 
H.  6^  //.  R.  Co.,  I  Woods  {U.  5.)  331. 

Joint  receivers  were  appointed  for  a  rail- 
road system  that  had  at  first  a  mileage  of 
3600  miles,  but  was  reduced  by  the  surrender 
of  V  ■  )us  leased  lines  to  1000  miles  before 
the  .eivership  closed.  The  property  was 
generally  in  a  bad  condition,  the  credit  of 
the  company  was  gone,  and  it  was  a  finan- 
cial wreck,  with  a  very  large  floating  in- 
debtedness. During  the  receivership  of 
nearly  three  years,  the  receivers  received 
and  paid  out  about  $60,000,000,  and  the  evi- 
dence showed  that  there  were  many  varying 
and  confiicting  interests,  with  many  under- 
lying mortgages  and  protracted  litigation, 
involving  unusual  labor  and  care.  }leld, 
that  an  allowance  of  $70,000  to  each  of  the 
receivers  was  reasonable.  Central  Trust 
Co.  v.  Wabash,  St.  L.  &*  P.  R.  Co.,  32  Fed. 
Rep.  187.— Quoting  Hinckley  z/.  Gilman.  C. 
&  S.  R.  Co.,  100  U.  S.  153  ;  Trustees,  etc,  v. 
Greenough,  105  U,  S.  527 ;  Cowdrey  v. 
Galveston,  H.  &  H.  R.  Co.,  i  Woods  (U.  S.) 

331- 

Three  persons  were  appointed  trustees  or 
receivers  of  a  short  road,  and  the  master  re- 
ported that  two  of  them  should  receive 
$3000  each  and  the  other  $1400.  The  evi- 
dence showed  that  they  were  all  men  of  ex- 
perience in  business,  and  devoted  much 
time  during  a  period  of  two  years  to  the 
interests  of  the  trust,  and  had  been  diligent 
and  thorough  in  their  atter'^'on  to  it.  Held, 
that  the  amounts  fixed  by  i.ie  master  were 
reasonable.  Mc Arthur  v.  Montclair  R.  Co., 
27  A^  J.  Eq.  77- 

161.  Extra  pay.  —  A  receiver  is  not 
necessarily  entitled  to  extra  compensation 
because  he  discharges  the  tluties  of  his 
office  with  fidelity  and  economy,  and  in 
such  a  manner  as  to  save  money  to  the 
company,  as  by  uniting  the  offices  of  auditor 
and  cashier,  thereby  saving  one  salary,  or 
by  disbursmg  money  in  payment  of  debts 
due  before  his  appointment.  Farmers'  L. 
&»  T.  Co.  v.  Central  R.  Co.,  2  McCrary 
(U.  S.)  318,  8  Fed.  Rep.  60. 

A  receiver  was  allowed  additional  compen- 


II 


1223 


RECEIVERS,  162-166. 


I  ■? 


sation  for  extra  services  not  contemplated 
by  the  order  appointing  him,  such  as  the  fol- 
lowing :  $1 500  for  acting  as  superintendent, 
in  addition  to  the  office  of  receiver,  for  a 
period  of  fifteen  months;  S390  for  services 
as  attorney  for  twenty  days'  service  in  court ; 
also  for  extra  work  and  travel  beyond  i^ffice 
hours  and  at  night.  Farmers'  L.  &*  T.  Co. 
v.  Central  A\  Co..  2  McCrary  {U.  S.)  318,  8 
Feti.  Kcp.  60. 

102.  Forfeiture  for  frmicl  or  niis- 
coiidiict. — A  receiver  cannot  be  deprived 
of  compensation  on  the  ground  of  miscon- 
duct, unless  it  amounts  to  fraud  or  wilful 
misconduct.  A  mere  error  of  judgment  is 
not  sufficient.  Farmers'  L.  &»  T.  Co.  v. 
Central  A\  Co..  2  McCrary  {U.  5'.)  318,  8 
Fed.  Rep.  60. 

Where  the  evidence  tends  to  show  that 
a  receiver  acted  in  good  faith  and  with  in- 
tegrity, a  mere  error  o)  judgment,  or  a  want 
of  foresight  touching  future  developments 
of  business,  is  not  sufficient  ground  (or  re- 
fusing or  reducing  his  compensation,  espe- 
cially where  the  property  was  brought  up 
under  liis  administration  from  an  almost 
hopeless  condition  to  one  in  which  the  re- 
ceipts considerably  exceeded  ordinary  ex- 
penses, and  a  large  amount  of  earnings  were 
expended  in  preserving  and  improving  the 
property.  Cowdrey  v.  Galveston,  H.  (S-*  H. 
K.Co..  I   Woods  (U.  5.)  331. 

10:}.  Appeals  from  orders  grant- 
ing compensation.  —  An  order  of  the 
chancellor  ascertaining  and  declaring  the 
compensation  of  a  receiver  and  his  solicitor, 
and  directing  its  taxation  as  costs  against 
the  complainant — the  equities  of  the  case 
not  having  been  settled— is  not  such  a  final 
decree  as  will  support  an  appeal.  State  v. 
Alabama  S>^  C.  R.  Co.,  54  Ala.  139. 

The  allowance  made  receivers  for  services 
rests  largely  in  the  discretion  of  the  court 
below.  The  supreme  court  will  not  reverse 
a  decree  fixing  a  receiver's  pay  where  there 
is  a  conflict  of  evidence,  though  he  brings 
two  witnesses  to  test'fy  that  they  had  been 
allowed  much  greater  compensation  for 
similar  services.  Hinckley  v.  Gilman,  C.  iS~» 
5.  A'.  Co.,  100  U.  S.  153.— Quoted  in  Cen- 
tral Trust  Co.  V.  Wabash.  St.  L.  &  P.  R. 
Co.,  32  Fed.  Rep.  187. 

XII.  BEMOVAL,  SUBSTITUTION,  AND 
DISCHABOZ. 

164.  In  general —  Vacating:  ap- 
pointment. —  Where  sequestration   pro- 


ceedings are  commenced  by  a  judgment 
creditor  of  a  railroad,  and  a  receiver  is  ap- 
pointed on  an  ex  parte  application,  if  it  ap- 
pears upon  a  hearing  of  both  sides  that  the 
property  is  not  in  jeopardy,  or  in  need  of 
the  protection  of  the  court,  and  that  the 
continuance  of  the  receivership  will  be 
likely  to  prove  injurious  to  the  holders  of 
securities  of  the  company,  upon  opening '  ..e 
judgment  to  allow  the  company  to  defend, 
the  receiver  will  be  dischars^ed.  Rodbourn 
V.  Utica,  I.  <S-  E.  R.  Co..  28 Hun  (A^  F.)  369. 
An  unreasonable  delay  in  making  a  mo- 
tion to  vacate  the  appointment  of  a  receiver 
will  be  regarded  as  an  acquiescence  in  such 
appointment.  A  delay  of  nearly  a  month, 
*  (ring  which  time  the  receiver  was  expend- 
g  large  sums  of  money — held,  unreason- 
able. Allen  v.  Dallas  &*  IV.  R.  Co.,  3  Woods 
{[/.  S.)  316. 

165.  Discretionary  power  of  the 
court. — An  order  refusing  to  remove  a 
railroad  receiver  and  to  appoint  another 
rests  in  the  sound  discretion  of  the  trial 
court,  and  cannot  be  reviewed  on  appeal. 
Milwaukee  &»  M.  R.  Co.  v.  Soulier,  1 7  Law. 
Ed.  {U.  5.)  604. 

The  refusal  of  a  court  to  remove  the  re- 
ceiver of  a  railroad  rests  in  the  discretion  of 
the  court,  and  is  not  reviewable.  Neither 
is  such  refusal  a  final  decree  that  may  be 
appealed.  Milwaukee  &^M.  R.  Co.  \.  How- 
ard,  18  Law.  Ed.  (U.  S.)  252. 

166.  Jurisdiction  to  remove.  — 
There  is  no  authority  which  will  authorize  a 
federal  court  to  interfere  with  the  posses- 
sion of  a  receiver  appointed  by  another 
court  having  jurisdiction,  and  who  is  in 
actual  possession  of  the  property ;  nor  to 
entertain  complaints  against  the  receiver, 
nor  to  remove  him.  Yoituff  v.  Montgomery 
<S-  E.  R.  Co.,  2  Woods  ( U.  S.^  606. 

The  same  power  to  appoint  receivers  is 
conferred  on  the  judges  as  on  the  court ; 
and  although  there  is  no  express  provision 
authorizing  the  discharge  of  a  receiver, 
either  by  the  court  or  a  judcre.  yet  the  power 
to  vacate  the  appointment  lb  implied  in  the 
power  to  appoint.  Cincinnati,  S.  &*  C.  R. 
Co.  V.  Sloan,  31  Ohio  St.  i,  15  Am.  Ry.  Rep. 

Where  the  appointment  of  a  receiver  has 
been  properly  vacated  by  the  order  ot  a 
judge  at  chambers,  the  validity  of  such  or- 
der does  not  depend  on  the  mere  discretion 
of  tlie  court  or  judge  making  the  appoint- 
ment.    And  where  the  court,  without  any 


RECEIVERS,  1«7,  108. 


1:.';.':3 


by  a    judgment 
a  receiver  is  ap- 
plication, if  it  jip- 
Jotli  sides  that  the 
Idy,  or  in  need  of 
|uit,  and  that  the 
ivership    will    be 
|to  the  holders  of 
upon  opening  s.e 
mpany  to  defend, 
arged.     Rodboiirn 
Hun  {N.  K)369. 
in  making  a  mo. 
|ment  of  a  receiver 
uiescence  in  sucii 
If  nearly  a  month, 
:eiver  was  expend- 
^ — held,  unreason- 
V.  R.  Co.,  3  Woods 

power  of  the 

ing  to  remove  a 
appoint  another 
:tion  of  the  trial 
viewed  on  appeal. 
/.  Soutter,  17  La7v. 

to  remove  the  re- 
n  the  discretion  of 
viewable.  Neither 
Ecree  that  may  be 
M.  R.  Co.  V.  How- 
:52. 

to  remove.  — 
ch  will  authorize  a 
:  witli  the  posscs- 
inted  by  another 
),  and   who   is  in 

property ;  nor  to 
inst  tile  receiver, 
ne;  v.  Montgomery 

S.)  606. 

point  receivers  is 
as  on  tiie  court ; 
express  i)rovision 
[e  of  a  receiver, 
ige.  yet  the  power 

is  implied  in  the 
tna//,  S.  &'  C.  R. 

15  Am.  Ry.  Rep. 

of  a  receiver  has 
I  the  order  ol  a 
idity  of  such  or- 
e  mere  discretion 
mg  the  appoiiit- 
»urt,  without  any 


new  showing  or  change  of  circumstances 
calling  for  judicial  action,  directs  the  orckr 
to  be  set  aside  as  a  nullity,  it  assumes  au- 
thority not  warranted  by  law.  Cinciiniaii, 
S.  &>  C.  R.  Co.  V.  Sloan,  31  Ohio  St.  i,  15 
Am.  Ry.  Rep.  376. 

Without  determining  what  may  be  the 
authority  of  a  judge  at  chambers  to  vacate 
a  receivership  when  the  court  making  the 
appointment  is  in  session  so  as  to  allow  the 
application  to  be  made  to  the  court,  yet,  if 
during  the  term  there  is  by  adjournment 
such  an  interval  in  the  session  as  to  prevent 
tlie  application  being  made  to  the  court 
without  causing  injustice  by  tlie  delay,  it  is 
both  the  right  and  the  duty  of  a  judge  to 
act  on  the  application  at  chambers.  Cincin- 
nati, S.  &^  C.  R.  Co.  V.  Sloan,  31  Ohio  St,  1, 
15  Am.  Ry.  Rep.  376. 

107.  Grounds  for  removal— Mis- 
conduct.— Unjust  discrimination  by  a  re- 
reiver  in  favor  of  some  shippers  is  good 
ground  for  his  removal.  Handy  v.  Cleveland 
J-  M.  R.  C<7..  31  Fed.  Rep.  689. 

A  large  shipper  of  oil  threatened  to  lay  a 
pipe  line  to  carry  oil  which  had  gone  over 
a  railroad  which  was  in  the  hands  of  a  re- 
ceiver, and  to  avoid  this  the  receiver  agreed 
to  carry  the  oil  of  this  shipper  at  ten  cents 
per  barrel,  and  to  charge  other  shippers 
thirty-five  cents  per  barrel,  out  of  which  he 
agreed  to  pay  the  large  shipper  twenty-five 
cents  per  barrel.  Held,  to  be  such  gross 
misconduct  and  discrimination  on  the  part 
of  the  receiver  as  to  require  his  removal. 
Handy  v.  Cleveland  (S«  M.  R.  Co.,  31  Fed, 
Rep.  689. — Quoted  in  Brundred  v.  Rice,  49 
Ohio  St.  640. 

A  rai!'"ay  company  became  embarrassed, 
and  several  of  its  directors  and  officers  were 
'  indorsers  of  its  paper.  As  managers  of  the 
company,  they  determined  to  apply  in  its 
behalf  for  a  receiver.  The  application  was 
granted,  as  to  Illinois  property,  by  a  United 
States  court  in  Missouri,  which  appointed 
two  of  the  officers  of  the  company  receivers, 
one  of  them  an  indorser  of  the  company's 
paper.  In  the  application  for  a  receiver, 
important  facts  were  suppressed,  and  in 
their  subsequent  management  of  the  road 
the  receivers  allowed  laf-gc  rebates  in  favor 
of  another  railway  company  owned  by  per- 
sons identified  in  business  with  the  receivers. 
They  also  allowed  excessive  rebates  to  a 
coal  company  of  which  they  were  share- 
holders They  also  boui;ht  for  the  railway 
company  coal  from  the  coal  company  at  too 


liigli  prices,  and  also  carried  coal  for  it  at 
too  low  rates.  And  tliey  co-operated  with 
a  "  purchasing  committee  "  seeking  to  buy 
the  road  in  edorts  to  compel,  by  threats  of 
prolonged  and  expensive  litigation,  a  minor- 
ity of  bond  and  stock  holders  who  objected 
to  the  sale  to  agree  tliereto.  Held,  that 
tliese  and  other  such  facts  warranted  the 
United  States  court  in  Illinois,  on  bill  filed 
by  the  objecting  bondholders,  in  assumi'ig 
control  of  so  nuicii  of  the  property  as  lay 
witliin  its  jurisdiction,  removing  the  receiv- 
ers, and  in  appointing  in  their  place  "some 
capable,  trustworthy  person  "  to  act  as  re- 
ceiver. Atkins  V.  Wabash,  St.  L.  (S"  /'.  R. 
Co.,  26  Am.  &^  Eng.  R.  Cas.  441,  29  Fed. 
Rep.  161. 

The  court  will  consider  specific  complaints 
of  maladministration  against  a  receiver,  not- 
withstanding the  irregularity  of  the  method 
by  which  they  are  brought  to  its  notice, 
e.  g.,  by  way  of  petition  under  an  order  for 
leave  to  answer,  etc.,  in  the  name  of  a  re- 
ceiver in  a  foreclosure  suit.  Coe  v.  New 
Jersey  Midland  R.  Co.,  28  A'.  /.  Eq.  31,  14 
Am.  Ry.  Rep.  9. 

A  receiver  was  appointed  to  collect  the 
gross  tolls,  rents,  issues,  and  profits  of  a 
railway  company.  Afterwards  the  rolling 
stock  was  seized  by  a  sheriff  under  fi.  fa, 
at  the  suit  of  another  company  not  a  party 
to  the  suit.  The  sheriff  declined  to  sell  the 
same  unless  authorized  by  the  receiver, 
who,  believing  under  the  advice  of  counsel 
that  he  had  no  control  over  the  stock,  as- 
sented to  the  sale.  Held,  on  motion  to 
remove  the  receiver  for  misconduct,  that  he 
had  committed  a  breach  of  duty  in  not  in- 
forming the  court  of  the  seizure  and  threat- 
ened sale,  and  in  assenting  to  the  sale  with- 
out its  sanction  ;  but  as  it  appeared  that  he 
had  acted  bona  fide,  and  to  the  best  of  his 
judgment,  the  court  declined  to  remove 
him,  but  ordered  him  to  pay  the  costs  of  the 
application.  Simpson  v.  Ottawa  &•  P.  R. 
Co.,  I  Ci,m.  Chamb.(U.  C)  337. 

1<>8.    collusive  appointMient, 

interest,  <'tc.—  Where  the  trustees  of  an 
express  company  dissolve  it  for  the  purpose 
of  transferring  the  stock  to  a  rival  company, 
and  one  of  ilie  trustees  is  appointed  re- 
ceiver, even  if  he  is  not  guilty  >if  collusion, 
his  interest  is  sufTicieiit  10  justify  lii.s  re- 
moval, and  the  appointment  of  a  disinter- 
ested person  in  his  stead.  McArdle  v. 
Barney,  50  How.  Pr.  (A'.  K)  97. 

Where  a  former  director  of  a  company  is 


l>  !| 


1224 


RECEIVERS,  109-173. 


appointed  receiver,  and  there  is  strong  cvi- 
(IciK  e  tciuiiiig  to  show  lluit  he  was  iniprop- 
crlv  ir.tcTcsted  in  certain  contracts  made  by 
the  company,  and  that  he  had  acquiesced  in 
tile  niismaiiagcnicnt  which  brought  on  the 
Hti_nation,  liis  api)oiiunicnt  should  be  re- 
voiied  ;  and  tiie  fact  ihat  tiie  litigation  is  for 
his  benefit  will  not  justify  his  continuance. 
AVtf/tr  V.  Bnw/dyri  El.  A'.  Co.,  9  Aid.  A'.  Cas. 
(A'.  V.)  166. 

100.  Appenlti  from  orders  ol  re- 
moval.—Proceedings  in  relation  to  the 
appointment  and  removal  of  receivers  are 
special  proceedings,  under  Ohio  Code,  § 
5:2,  and  an  order  affecting  substantial  right 
made  in  such  proceeding  is  a  final  order 
witliin  the  meaning  of  said  section.  O'n- 
chinati,  S.  <&-  C.  R.  Co.  v.  Sloan,  31  Ohio  St. 
I,  IS  Am.  Ry.  Jiep.  376.— DISTINGUISHING 
Eaton  &  H.  R.  Co.  v.  Varnum,  10  Ohio  St. 
622. 

1 70.  Extension  of  tlie  receivership. 
—A  railroad  company  which  was  incorpo- 
rated both  in  Georgia  and  South  Carolina, 
went  into  the  hands  of  a  receiver  appointed 
by  a  federal  circuit  court  in  Georgia,  and  by 
ancillary  proceedings  his  authority  was  ex- 
tended to  the  other  state.  The  plaintifl  in 
both  proceedings  was  the  same,  but  in  the 
ancillary  proceeding  other  citizens  of  Geor- 
gia were  made  defendants,  but  no  relief  was 
asked  against  them.  Held,  that  the  circuit 
coui^  had  jurisdiction  on  account  of  diverse 
citizenship.  Pfiiuizy  \.  Aiigttsta  &*  K.  R. 
Co.,  56  Fed.  Rep.  273. 

In  such  case  a  trustee  in  a  mortgage 
made  by  the  company  filed  a  bill  for  a  re- 
ceiver and  for  a  foreclosure,  in  which  it  ap- 
peared that  the  original  receiver  was  ap- 
pointed on  the  application  of  another 
company  that  controlled  the  stock  of  the 
defendant  company,  to  further  its  own  in- 
terests  and  not  the  interests  of  the  creditors 
of  defendant,  and  tliat  the  court  in  Georgia 
had  declared  the  action  unauthorized. 
Held,  that  a  new  receiver  should  be  ap- 
pointed who  could  represent  the  interests  of 
all  the  parties.  Phinisy  v.  Augitsta  &*  K. 
R.  Co.,  56  Fed.  Rep.  273. 

In  such  case  it  is  not  necessary  that  the 
original  receiver  should  be  made  a  party  to 
the  second  bill,  as  lie  is  supposed  to  be  al- 
ready in  court;  nor  is  it  necessary  to  make 
another  corporation  a  party,  where  no  relief 
is  asked  against  it,  simply  because  certain 
charges  are  made  against  it.  Phinizy  v. 
Augusta  ^  K.  R.  Co.,  56  Fed.  Rep.  273. 


171.  Diselinrge  of  receivers,  gen- 
erally.*— A  court  cannot,  after  the  adjourn- 
ment of  the  term  at  which  an  order  is  made 
discharging  a  receiver,  in  any  way  alter, 
change,  modify,  suspend,  or  extend  the  de- 
cree, and  again  obtain  jurisdiction  of  the 
property  and  funds  which  it  has  by  its  de- 
cice  ordered  the  receiver  to  turn  o\'f,rtotlic 
corporation,  and  which  it  is  admitted  he  has 
done.  If  it  is  desired  to  retain  further 
control  of  the  property  after  the  receiver  is 
discliarged,  the  right  should  he  reserved  in 
tlie  decree.  Dai'is  v.  Duncan,  17  Am.  &^ 
Eng.  R.  Cas.  295,  19  Fed.  Rep.  477. — Distin- 
guishing Miller  v.  Loch,  64  Barb.  (N.  Y.) 
454.  Following  Farmers'  L.  &  T.  Co.  v. 
Central  R.  Co.,  7  Fed.  Rep.  537. 

And  in  such  case  the  power  of  the  court 
to  reach  the  property  or  funds  is  not  affected 
by  the  fact  that  the  receiver  is  the  president 
of  the  company.  Davis  v.  Duncan,  17  Am. 
&*  Eng.  R.  Cas.  295,  19  Fed.  Rep.  477. 

An  order  of  court,  made  upon  notice  to 
the  parties,  directing  a  receiver  to  transfer 
the  property  in  his  hands  to  his  successor, 
protects  him  in  such  transfer  so  far  as  the 
property  is  under  his  contrcl.  Clapp  v. 
Clcipp,  4  Silv.  Sup.  a.  279.  7  N.  V.  Supp. 
495,  27  A^  V.  S.  R.  180.— Following  Her- 
ring V.  New  York,  L.  E.  &  W.  R.  Co.,  105 
N.  Y.  340;  Sullivan  v.  Miller,  106  N.  Y.  635. 

172.  Who  may  apply  for  discharge. 
— The  stockholders  of  a  railroad  company 
cannot  maintain  a  bill  or  petition  for  the 
removal  of  a  receiver,  where  there  is  a  reg- 
ular board  of  directors  who  are  in  sympathy 
with  the  stockholders.  Ft/t/i  Nat.  Bank  v. 
Pittsburgh  &^  C.  S.  R.  Co.,  i  Fed.  Rep.  190. 

After  a  foreclosure  suit  had  been  insti- 
tuted and  a  receiver  appointed,  by  agree- 
ment the  defendants  were  to  give  bond  and 
have  possession  of  the  road  and  name  a  new 
receiver.  Held,  that  after  the  new  receiver 
was  appointed  the  defendants  could  not 
object  to  him,  unless  he  was  unfaithful  to 
his  trust;  and  the  court  will  refuse  to 
remove  him  unless  such  unfaithfulness  be 
made  to  appear.  Cci'drey  v.  Galveston,  H. 
<S-  H.  R.  Co.,  I   M'oods  (C/.  5.)  331. 

173.  Grounds  for  di.scharge.  gen- 
erally.—Where  suit  IS  commenced  in  a 
state  court,  and  a  receiver  appointed  on  an 
ex  parte  application,  and  the  case  is  after- 
wards  removed  to  a  federal  circuit  court, 


•  Discharge  of  receivers,  see.  notes,  42  Am.  & 
Eng.  R.  Cas.  20;  30  Id.  161. 


oelvcrs,  gon- 

'tcrtlieadjourn- 
n  Older  is  made 
any  way  alter, 
extend  the  de- 
sdiction  of  tlie 
liiis  by  its  de- 
turn  ovf.rto  the 
idniitted  lie  luis 
retain    further 
the  receiver  is 
be  reserved  in 
lilt,  17  Ain.  &^ 
.  477.— DisTiN- 
[  Barb.  (N.  Y.) 
L.  &  T.  Co.  V. 
537- 

er  of  the  court 
s  is  not  affected 
is  the  president 
Duncan,  17  Am. 
Rep.  477. 
upon  notice  to 
iver  to  transfer 
o  his  successor, 
er  so  far  as  the 
trcl.     Clafip  V. 
7  N.  Y.  Sufp. 
LLOWING  Her- 
W.  R.  Co.,  loj 
r,  106  N.  Y.  635, 
Ibr  discharge. 
ilroad  company 
petition  for  the 
e  there  is  a  reg- 
are  in  sympathy 
ih  Nat.  Bank  v. 
Fed.  Rep.  190. 
tiad   been  insti- 
n'ted,  by  agree- 
•  give  bond  and 
ind  name  a  new 
he  new  receiver 
ints  could    not 
IS  unfaithful  to 
will    refuse  to 
ifaithfulness  be 
i^.  Galveston,  H. 

'■)  33'- 
charge,  geii- 

tiinienced  in  a 
ppointed  on  an 
•i  case  is  after- 
.1  circuit  court, 

notes,  42  Am.  & 


RECEIVERS,  174-176. 


1225 


that  court  will  discharge  the  receiver,  upon 
a  full  hearing  of  the  parties,  where  it  ap- 
pears that  a  receiversiiip  is  not  necessary  to 
protect  the  property,  McHenry  v.  New 
York,  P.  Sf  O.  A\  Co.,  25  Fed.  Rep.  114. 

A  motion  to  vacate  an  order  appointing  a 
receiver  being  coricurred  in  by  all  parties  in 
interest,  should  be  granted  so  far  as  to  re- 
store the  possession,  management,  and  con- 
trol of  the  road  to  the  owner,  and  such 
control  should  include  the  receipt  and  dis- 
bursement of  its  future  earnings.  The  re- 
ceiver should  not  be  heard  in  opposition. 
L'Engle  v.  Florida  C.  R.  Co.,  14  Fla.  266. 

174.  irregular  or  collusive  ap- 

poliitiiient.  —  Where  the  ostensible  pur- 
pose of  plaintiff  in  applying  for  a  receiver 
is  to  compel  defendant  company  to  apply 
its  earnings  to  tiie  payment  of  a  judgment, 
but  it  afterwards  appears  that  this  was  not 
the  real  purpose,  but  that  the  receivership 
was  but  a  means  of  placing  the  property  and 
business  of  the  company  in  the  hands  of  th? 
court  to  be  managed  by  a  receiver,  for  the 
purpose  of  protecting  the  company  against 
suits  by  other  creditors,  the  court,  upon  be- 
ing informed  of  such  facts,  will  discharge 
the  receiver  on  its  own  motion.  Sage  v. 
Memphis  &*  L.  R.  R.  Co.,  17  Am.  (r**  Eng. 
R.  Cas.  359,  5  McCrary  (U.  S.)  643,  18  Fed. 
Rep.  571. 

175.  object  of  receivership  at- 
tained.— A  receivership  continues  as  long 
as  the  court  may  think  it  necessary  to  the 
performance  of  the  duties  pertaining  thereto. 
Young  v.  Rollins,  25  Am,  &*  Eng.  R.  Cas. 

646,  90  .V.  Car.  125. 

But  it  is  the  duty  of  the  court  to  get  rid 
of  a  receiver  at  the  earliest  possible  moment 
consistent  with  the  interests  of  the  credit- 
ors and  stockholders,  and  when  the  ad- 
mitted liabilities  and  receiver's  expenses 
are  paid  the  receiver  will  be  discharged. 
Seioell  V.  Cape  May  &^  S.  P.  R.  Co.,  (N.  J. 
Eq.)  30  Am.  &»  Eng.  R.  Cas.  1 55,  9  A/l.  Rep. 
783.  Langdon  v.  Vermont  &^  C.  R.  Co.,  4 
Am.  (S--  Eug.  R.  Cas.  33,  53  Vt.  228. 

When  the  company  shall  satisfy  the  chan- 
cellor of  its  ability  and  readiness  to  operate 
the  road,  the  receiver  will  be  ordered  to 
deliver:  it  up.  In  re  Long  Branch  &*  S.  S. 
R.  Co.,  24  N.  J.  Eq.  398.  In  re  Long 
Branch  iS-  S.  S.  R.  Co.,  24  N.  J.  Elq.  402; 
affirmed  in  26  A'.  /.  Eq.  539. 

A  receiver  was  appointed  for  a  railroad  95 
miles  in  length,  including  depots,  rolling 
stock,  and  other  appurtenances,  which  was 


an  important  link  in  a  most  valuable  route, 
and  which  had  annual  earnings  amounting 
to  $800,000,  and  was  in  good  condition. 
Held,  that  it  was  ample  security  for 
mortgage  debts  amounting  to  $2,200,000, 
and  a  receiver  will  be  discharged  where  it 
appears  that  he  was  appointed  on  the  appli- 
cation of  a  small  creditor  who  had  a  decree 
for  sale  of  the  property  in  case  of  defau'r  in 
payment.  Howard  v.  La  Crosse  &*  A  R. 
Co.,  IVoolw.  {U.  S.)  49. 

In  such  case  it  appeared  that  the  receiver 
was  appointed  on  an  application  of  a  cred- 
itor who  held  a  judgment  for  $16,000,  and 
that  during  four  years  in  which  the  road 
had  been  in  the  hands  of  a  receiver  but 
$1000  had  been  paid  on  the  judgment. 
Held,  that  the  receiver  should  be  discharged, 
especially  where  plaintiff  enjoyed  the  usual 
remedies  for  collecting  his  debt.  Howard 
V.  La  Crosse  <S-  M.  R.  Co.,  Woolw.  (U.  S.)  49. 

In  such  case  another  creditor  of  the  road 
appeared  and  claimed  that  possession  should 
be  surrendered  to  him  upon  the  discharge 
of  the  receiver,  that  he  held  a  judgment 
against  the  company  for  $700,000,  and  at  the 
time  the  receiver  was  appointed  he  was  in 
possession  of  the  road  under  a  lease  executed 
to  him  to  secure  his  judgment.  Held:  (i) 
that  this  in  itself  would  entitle  him  to  pos- 
session upon  a  discharge  of  the  receiver; 
but  it  appeared  that  the  terms  of  the  lease 
required  him.  out  of  the  proceeds  of  the 
road,  to  keep  down  interest  on  a  mortgage 
debt  of  the  plaintiff,  which  he  had  failed  to 
do,  and  had  surrendered  possession  before 
the  receiver  was  appointed,  and  had  per- 
mitted the  property  to  remain  in  the  hands 
of  the  receiver  exposed  to  sale  for  four 
years;  (2)  that  he  had  thereby  lost  his 
right  of  possession.  Howard  v.  La  Crosse 
&-  M.  R.  Co.,  IVoolw.  {U.  S.)  49. 

It  appeared  that  the  judgment  for  which 
such  lease  had  been  executed  had  been  va- 
cated by  a  decree  which  still  remained  in 
full  force.  Held,  that  the  court,  on  an  ap- 
plication to  discharge  the  receiver,  would 
not  undertake  to  determine  the  full  force  of 
the  decree,  yet  it  would  have  a  persuasive 
influence  in  determining  whether  the  re- 
ceiver should  be  continued  for  the  benefit  of 
the  judgment.  Howard  v.  La  Crosse  &»  M. 
R.  Co.,  Woolw.  (U.  5.)  49. 

176.  Effect  of  the  discliarge,  gen- 
erally.— Where  a  receiver  is  discharged, 
and  the  property  surrendered  to  the  owner, 
the  control  of  the  court  over  it  is  ended. 


1226 


RECEIVERS,  177,  178. 


mi 


m^ 


and  a  mere  reservation  of  the  right  again  to 
assume  control  will  not  give  the  court  such 
control.  Texas  Pac.  N.  Co.  v.  Johnson,  42 
Am.  <&-  Eng.  R.  Cas.  7,  76  Tew.  421.  13  .V. 
W,  Rep.  463.— Followed  in  Texas  Pac.  R. 
Co.  V.  Overhciser,  76  Tex.  437,  13  S.  W. 
Rep.  468 ;  Texas  Pac.  R.  Co.  v.  Griffin,  76 
Tex.  441  ;  Boggs  v.  Brown,  82  Tex.  41. 

177.  Effect  of  the  discharge  upon 
claims  against  the  receiver.— Ordi- 
narily the  appointment  and  discharge  of  a 
receiver  rests  in  the  discretion  of  the  trial 
court,  but  where  the  supreme  court  of  the 
United  States,  on  appeal,  has  definitely  fixed 
the  amount  of  a  debt  on  a  railroad,  it  is  the 
right  of  the  company  upon  payment  of  the 
amount  to  have  its  property  restored  and 
the  receiver  discharged  ;  and  a  refusal  of 
the  trial  court  to  grant  such  relief  is  error, 
which  will  be  corrected  on  another  appeal. 
Milwaukee  &•  M.  R.  Co.  v.  Soutter,  2  Wall. 
{LT.S.)  510. 

And  the  supreme  court  will  not  refuse  to 
order  a  discharge  of  the  receiver  in  such 
case  because  other  parties  set  up  small 
claims,  which  they  expect  the  receiver  to 
pay ;  but  will  direct  a  discharge  of  the  re- 
ceiver, and  a  surrender  of  the  property  to 
the  company,  upon  its  giving  bond  to  pay 
such  other  claims,  if  they  shall  be  established 
as  liens.  Milwaukee  &•  M.  R.  Co.  v.  Soutter, 
2  Wall.  (U.  S.)  510. 

An  order  made  by  a  federal  court  when 
about  to  discharge  a  receiver  providing  that 
creditors  must  intervene  in  a  certain  time 
or  their  claims  will  be  barred,  has  the  effect 
only  of  a  bar  so  far  as  relief  in  that  court 
is  concerned,  and  leaves  parties  who  did 
not  intervene  to  such  other  relief  as  might 
be  within  their  reacli  in  other  courts.  Tcx.is 
&^  P.  R.  Co.  v.  Saunders,  151  I/.  S.  105,  14 
Su/>.  Ct.  Rep.  257.— Followed  in  Texas  & 
P.  R.  Co.  V.  Johnson,  151  U.  S.  81. 

A  party  having  a  just  claim  against  a 
railroad  company  for  damages  is  not  bound 
by  an  order  of  the  court  in  discharging  a 
receiver  and  providing  that  all  claims 
against  it  be  established  by  intervention 
within  a  time  fixed,  if  such  ti.iie  is  siiorter 
than  what  would  constitute  an  equitable 
bar.  Texas  <&-  P.  R.  Co.  v.  Watts,  (Tex.) 
18  S.   W.  Rep.  312. 

After  a  receiver  has  been  discharged  he 
is  not  liable  to  an  action  on  a  contract, 
though  he  has  been  discharged  without  no- 
tice to  the  contracting  parties.  So  where 
it   is  sought  _to  show  that  a  receiver  has 


been  discharged,  and  has  parted  with  the 
property,  it  is  competent  to  prove  that  a 
referee  appointed  by  the  court  conveyed  to 
other  parties  all  of  the  property  held  by  the 
receiver;  and  after  a  sufficient  lapse  of  time 
is  sufficient  to  raise  an  inference  of  delivery 
of  possession.  Corser  v.  Russell,  20  Add.  N. 
Cas.  {N.   Y.)  316. 

A  receiver  was  appointed  to  collect  rev- 
enue, and,  after  paying  expenses,  to  pay  the 
balances  into  court,  which  were  to  be  paid 
out  on  the  report  of  the  master  to  the  par- 
ties entitled  as  found  by  him.  S.,  pursuant 
to  advertisement  for  creditors,  proved  his 
claim.  The  master  had  not  made  his  re- 
port. By  44  Vict.  ch.  61  (O),  defendants 
were  authorized  to  pledge  the  bonds  or  de- 
benture stock  to  be  issued  thereunder,  and 
the  proceeds  were  to  be  paid  out  on  the  or- 
der of  C.  and  F.,  wh.>  were  appointed  credit- 
ors' trustees,  in  payment  of  all  money 
necessary  to  be  paid  for  the  discharge  of 
the  receiver  in  this  suit.  An  order  of  court 
was  made,  discharging  the  receiver  without 
providing  for  the  payment  of  the  claimants 
who  had  proved  under  the  decree.  The 
act  directed  that  all  who  came  under  it 
should  take  fifty  cents  on  the  dollar.  Held, 
that  the  position  of  affairs  having  altered 
since  the  time  at  which  S.  had  proved  his 
claim,  he  was  not  bound  thereby,  and 
should  not  be  restrained  from  prosecuting 
an  action  for  his  debt  to  recover  the  full 
amount,  if  possible.  Lee  v.  Credit  Valley 
R.  Co.,  29  Grant 's  Ch.  ( U.  C.)  480. 

178.  Effect  of  the  discharge  upon 
pending  suits. — To  an  action  by  the  state 
against  a  receiver  to  recover  the  penalty 
prescribed  by  Miss.  Act  of  March  11,  1S84, 
for  failure  to  keep  a  bulletin  board  showing 
the  time  of  arrival  and  departure  of  trains, 
it  is  a  good  plea  in  bar  that  since  the  com- 
mencement of  the  suit  he  had  been  finally 
discharged  by  the  court  appointing  him. 
Bond  V.  State,  68  Afiss.  648,  9  So.  Rep.  353. 
—Explaining  Miller  v.  Loeb,  64  Barb. 
(N.  Y.)  454. 

After  the  discharge  of  a  icceiver  and  sur- 
render by  him  of  the  assets,  no  judgment 
can  be  rendered  against  him  to  bind  the 
property  although  in  his  possession  when 
suit  was  begun.  Nevertheless,  the  discharge 
does  not  abate  the  suit,  which  may  be  pros- 
ecuted against  his  successor.  Bond  v.  Staie, 
68  Miss.  648,  9  So.  Rep.  353. 

Pending  proceedings  ai^ainst  a  receiver 
to  compel  him  to  pay  the  claim  of  a  cred- 


RECEIVERS,  179. 


1227 


parted  with  the 
to  prove  that  a 
ourt  conveyed  to 
perty  held  by  the 
lent  hipse  of  time 
rence  of  delivery 
ussell,  20  Abb.  N. 

d  to  collect  rev- 

enses,  to  pay  the 
were  to  be  paid 

aster  to  the  par- 
im.     S.,  pursuant 

itors,  proved  his 
lot  made  his  re- 
(O),  defendants 

the  bonds  or  de- 

thereunder,  and 

aid  out  on  the  or- 

appointed  credit- 
It   of    all    money 

the  discharge  of 
An  order  of  court 
;  receiver  without 
t  of  the  claimants 
the  decree.  The 
o  came  under  it 
the  dollar.  Held, 
rs  having  altered 
S.  had  proved  his 
and    thereby,  and 

from  prosecuting 
0  recover  the  full 
e  v.  Credit  Valley 

:  c.)  480. 

iliscliargo  upon 

action  by  the  state 
:over  the  penalty 
of  March  11,  1S84, 
tin  board  showing 
eparture  of  trains, 
nat  since  the  com- 
2  had  been  finally 
appointing  him. 
48,  9  So.  Rep.  353. 
,    Loeb,    64   Barb. 

a  leceiver  and  sur- 
isets,  no  judgment 
;  him  to  bind  the 
is  possession  when 
;less,  the  disciiarge 
vhich  may  be  pres- 
sor.   Bond  V.  State, 

53- 

ai^ainst  a  receiver 

le  claim  of  a  cred- 


itor out  of  the  assets  in  his  hands,  he  was 
finally  discharged  and  all  the  property,  by 
direction  of  the  court,  taken  out  of  his 
hands.  Held,  that  this  was  sulFicient  ground 
for  denying  the  application  ;  that  the  court 
had  power  to  make  the  order  discharging 
the  receiver  without  notice  to  the  petition- 
ing creditor  ;  and  as  upon  his  discharge  he 
could  no  longer  act  for  or  represent  the 
company  or  its  creditors,  and  as  he  had  no 
longer  any  funds  out  of  which  payment 
could  be  made,  the  court  could  not  there- 
after make  an  order  that  he  should  pay  a 
creditor.  New  York  &*  JV.  U.  Tel.  Co.  v. 
Jewett,  MS  N.^Y.  166,  21  N.  E.  Rep.  1036, 
24  N.  Y.  S.  R.  560  ;  affirming  43  Hun  565. 

In  an  action  against  a  receiver  an  interloc- 
utory judgment,  so  called,  was  entered  on 
trial,  directing  defendant  to  pay  the  inter- 
est on  certain  mortgage  bonds  out  of  any 
funds  applicable,  or  which  were  in  his  hands 
as  receiver  at  the  time  of  the  sale  of  the 
property  of  the  company  under  foreclosure. 
For  the  purpose  of  determining  what 
amount  of  such  funds  was  in  his  hands  a 
reference  was  ordered.  This  judgment  was 
reversed  by  the  general  term  and  a  new 
trial  granted.  The  general  term  was  re- 
versed and  the  interlocutory  judgment  was 
affirmed  on  appeal  to  this  court.  Before 
the  decision  of  general  term, and  while  said 
judgment  was  in  full  force,  an  order  was 
granted,  on  application  of  the  receiver,  with- 
out notice  to  plaintiff,  finally  discharging 
the  receiver  and  ratifying  transfers  of  prop- 
erty made  by  him,  among  others  transfers 
of  the  funds  in  his  hands  to  the  purchaser 
at  the  foreclosure  sale.  After  the  aflirm- 
ance  of  the  interlocutory  judgment  by  this 
court  a  referee  was  appointed,  and  it  was 
found  that  the  receiver  held  at  the  time 
specified  therein  sufficient  of  the  funds  to 
pay  the  interest ;  upon  the  coming  in  of  the 
referee's  report  final  judgment  was  entered 
directing  the  receiver  to  pay  the  amount  of 
said  interest  out  of  the  moneys  in  his  hands 
at  the  time  of  the  foreclosure,  or  thereafter, 
and  applicable  thereto.  Held,  no  error. 
Wooaruffv.  Jewett,  \\t,  N.  Y.  267,22  N.  E. 
Rep.  157,  26  N.  Y.  S.  R.  142  ;  reversing  37 
Hiin  205. 

Where  a  receiver  is  discharged  pending  a 
suit  for  injuries  against  him,  the  suit  as  to 
him  should  abate  for  want  of  proper  parties. 
The  railway  company  should  be  made  a  de- 
fendant. Bro7un  v.  Gay,  42  Am.  jS^  Eng.  R. 
Cas.  23,76  TVjt.  444,   13  5.   IV.  Rep.  472.— 


Followed  in  Boggs  v.  Brown,  82  Tex. 
41. 

But  where  no  order  of  a  federal  court  ex- 
pres>ily  discharging  receivers  is  shown,  suits 
for  damages,  pending  in  a  state  court.will  not 
abate,  although  it  be  shown  that  under  fore- 
closure proceedings  the  property  had  been 
sold  and  turned  over  to  the  purchasers,  and 
that  the  receivers  had  ceased  to  have  any 
control  or  management  of  it.  Fordyce  v. 
Chancey,  2  Tex.  Civ.  App.  24,  21  S.  IV.  Rep. 
181. 

Tex.  Act  of  March  19,  1889,  providing 
that  the  discharge  of  a  receiver  shall  not 
have  the  effect  of  abating  any  pending  suit 
against  him  as  such  receiver,  hut  that  such 
suit  may  be  prosecuted  to  judgment  not- 
withstanding the  discharge,  does  not  apply 
to  judgments  of  courts  of  the  United  States 
discharging  receivers  appointed  by  them. 
Fordyce  v.  Beecher,  2  Tex,  Civ.  App,  29,  21 
S.  IV.  Rep.  179. 

It  is  by  no  means  clear  that  the  legisla- 
ture intended  the  act  of  1889  to  apply  to 
federal  court  receivers.  Nearly  all  its  pro- 
visions plainly  apply  only  to  proceedings  in 
state  courts.  In  a  few  of  its  provisions  the 
language  is  broad  enough  to  embrace  all 
receivers,  but  no  mention  is  made  of  any 
others  than  those  whose  appointment  is 
provided  for  by  state  courts,  and  it  ought 
not  to  be  presumed  that  it  was  intended  to 
regulate  that  over  which  the  legislature  had 
no  authority.  Fordyce  v.  Beecher,  2  Tex. 
Civ.  App.  29,  21  S.  IV.  Rep.  179. 

XIII.  LIABILITT  OF  COMPANY  FOB  ACTS  OF 
RECEIVER  WHILE  IN  POSSESSION. 

170.  General  rule  that  company  is 
not  liable.*— A  company  is  not  liable  for 
injuries  inflicted  by  a  receiver  or  his  ser- 
vants while  in  possession  of  the  property, 
and  when  the  company  was  out  of  posses- 
sion and  had  no  control  over  the  property. 
Davis  V.  Duncan,  17  Am.  (S-»  Eng.  R.  Cas. 
295,  19  Fed.  Rep.  477.— Follovving  Ohio  & 
M.  R.  Co.  V.  Davis,  23  Ind.  5(30 ;  Bell  v.  In- 
dianapolis, C.  &  L.  R-.  Co.,  53  Ind.  57 ;  Metz 
V.  Buffalo,  C.  &  P.  R.  Co.,  58  N.  Y.  61  ; 
Rogers  %>.  Mobile  &  O.  R.  Co.,  17  Cent.  L.  J. 
290;  Murphy  r/.  Holbrook,  20  Ohio  St.  137. 
—Kansas  Pac.  R.   Co.  v.  Searle,  35  Am.  &■* 

*  Liability  of  corporation  during  receivership, 
see  notes,  12  Am.  &  Eng.  R.  Cas.  446  ;  37  /d. 
12. 


1228 


RECEIVERS,  180-183. 


a 

a 
c 

I 

< 
I 

1 


EnfT.  A'.  Cas.  6,  1 1  Co/o.  i,  i6  Paf.  Hep.  328. 
Ohio  &*  M.  A'.  Co.  V.  Am/i-rson,  10  ///.  ////. 
313.-  KKVlKWINCi  Ollli)  &  M.  K.  Co.  V. 
I)avis,  23  liicl.  553.  A'o^irs  v.  Mobile  &^  O. 
A'.  Co.,  ( 'I'emi.)  12  Am.  &^  I-");.  A'.  Cus.  442. 
Texas  &^  J'.  A'  Co.  v.  lileiisoe,  2  Te.x.  Civ. 
App.  88,  20  S.  W.  Aep.  1 135.— Following 
Turner  v.  Cross,  83  Tex.  218;  Yoakum  v, 
Sfl|)li,  83  Tex.  607. 

One  railroad  company  was  operating 
another,  and  after  it  went  into  the  hands  of 
a  receiver  he  continued  to  operate  the  other 
r()a<l,  and  hy  contract  or  otherwise  used  a 
part  of  tile  tracl:  and  yard  of  a  third  road, 
but  the  company  wliose  road  was  operated 
by  the  receiver  was  not  a  party  to  the  con- 
tract or  arrangement  by  wliidi  the  track 
and  yard  were  used.  Held,  tliat  such  com- 
pany was  not  liable  in  damages  resulting 
from  the  negligence  of  the  receiver  and  the 
compa-jy  owning  such  yard.  McCaffrey  v. 
Geon^iii  Sout/tent  A\  Co.,  69  Ga.  622. 

1 KO.  Uiilo  applied  to  iio(;ligcnt  and 
tortioiiN  acts  of  receiver's  servants.* 
—A  railroad  company  is  not  liable  for  the 
negligence  of  the  servant  of  a  receiver  who 
is  operating  the  road.  Memphis  &•  L,  R. 
K.  Co.  V.  Strinff/ellma,  21  Am.  &•  Eng,  li. 
Cits.  374,  44  Ari:  322,  51  Am.  Rep.  598. 

Especially  is  this  so  where  the  receiver 
has  exclusive  control.  McNulta  v.  Loci- 
ritlife,  137  711.  270,  27  A'^.  E.  Rep.  452.  f/tets 
V.  International  Sm  G.  N.  R.  Co.  .  62  7V.r.  32. 

And  a  company  whose  property  is  tem- 
porarily in  the  hands  of  a  receiver  will  not 
be  held  liable  for  injur-'es  caused  by  the 
negligent  management  ot  a  locomotive  by 
a  person  in  the  service  of  the  receiver. 
Turner  v.  Hannibal  &•  .Sf.  J,  R,  Co.,  6 
Am.  &^  E.ng.  R.  Cas.  38,  74  I\'o.  602. 

ISI.  actions  for   personal  in- 

Jiiri«>».f— A  railroad  employe  cannot  re- 
C'lvcr  <:f  the  company  for  an  injury  sus- 
tained wliile  the  road  was  in  the  hands  of  a 
receiver.  Thurman  v.  Cherokee  R.  Co.,  56 
Ga.  376.— Following  Henderson  v.  Walk- 
er, 55  Ga.  481. 

To  a  complaint  against  a  railroad  com- 
pany for  injuries  received  by  the  plaintifl 
in  being  run  over  by  a  train  of  cars  of  the 
defendant,   it   is  a  sufficient  answer  that. 


*  Liability  of  companies  where  road  is  in  hands 
of  receivers  or  trustees  for  negligence  of  agents 
or  servants,  see  note,  5  Am.  St.  Rep.  313. 

t  Action  for  injuries  while  corporation  is  in 
hands  of  receive)',  see  note,  35  Am.  &  Eng.  R. 
Cas.  I. 


when  the  injuries  were  inflicted  on 
plaiiitiiT,  the  railroad,  engines,  cars,  ant 
other  i)ro[)erty  of  the  company  were  ii 
hands,  anrl  under  the  control,  of  a  rec( 
duly  appf>intcd  and  acting;  and  stich 
swer  need  not  set  forth  a  copy  of  the  <; 
of  court  appointing  the  receiver.  Be 
Indianapolis,  C.  &*  I..  R.  Co.,  53  Ind.  \ 
F()LLOwiN(;  Ohio  &  M.  K.  Co.  v.  Davi 
Ind.  553.— Followed  in  Davis  7-.  Diir 
17  Am.  &  Eng.  R.  Cas.  295,  19  Fed.  ] 
477.—A'ansas  &^  G.  S.  L.  R.  Co.  v.  . 
oiigh,  72  Tex.  108,  \oS.  IV.  Rep.  711. 

A  railroad  company  is  liable,  after  it 
turn  to  the  hands  of  its  owners  from 
control  of  a  receiver,  for  an  injury  stista 
by  an  employe  during  the  cotiirol  of  tli 
ceiver.  Texas  Pac.  R.  Co.  v.  Whiti 
Tex.  543,  18  5.   W.  Rep.  478. 

182. actions  for  causing  dci 

— Suit  was  instituted  against  a  receive 
negligently  causing  the  death  of  plain 
husband,  an  employe  on  the  railway, 
seqi'.ently  the  company  was  made  a  p 
and  after  the  discharge  of  the  rect 
plaintiff  sought  to  recover  against  it,  i 
ing  the  necessary  allegations  as  to  tht 
propriation  by  the  receiver  of  the  incon 
betterments.  Held,  that  the  receiver  c 
not  be  held  liable  for  injuries  resultir 
death,  and  that  the  company  was  no  par 
the  acts  of  the  receiver ;  a  judgmen 
plaintifT  was  therefore  reversed.  Texi 
P.  R.  Co.  V.  Collins,  84  Tex.  121,  19  .S 
Rep.  365.— Following  Turner  v.  Cros 
Tex.  218;  Yoakum  v.  Selph,  83  Tex.  6< 

Under  Tex.  Rev.  St.,  art.  2899,  subd 
company  cannot  be  held  liable  for  r 
gence  resulting  in  the  death  of  a  pt 
from  injuries  received  while  its  road  w 
the  hands  of  a  receiver,  where  it  does 
appear  that  the  receiver  was  personal  I  j 
immediately  guilty  of  the  negligence 
plained  of.  Texas  <S^  P.  R.  Co.  v.  Rt. 
2  Tex.  Civ.  App.  88,  20  S.  W.  Rep.  11; 

18:t.  Limits  and  exceptions  t< 
rule,  generally.*— The  mere  apj 
ment  of  a  receiver,  with  the  usual  pc 
does  not  relieve  the  company  from  lia 
to  suit.  Ohio  &*  M.  R.  Co.  v.  Fitch,  2c 
498.  Union  Trust  Co.  v.  Cuppy,  1 1  A 
Eng.  R.  Cas.  562,  26  Kan.  754, 

Where  a  railroad  is  in  the  hands  of 
tees  exercising  the  same  functions  th 

*  Statutory  liability  of  company  notwith 
ing  receivership,  see  notes,  23  Am.  &  Ej 
Cas.  153;  5  Am.  St.  Rei'.  314. 


juries  were    inflicted   on    the 
railroad,  cnjjines,  cars,  and  ail 
y  of  the  conii)any  muc  in  the 
nder  the  control,  of  a  receiver 
led  and  acting;   and  such  an- 
[t  set  forth  a  copy  of  the  order 
oiiiting  the  receiver.     Be//  v. 
C.  &^  L.  /,'.  Co.,  53  /«,/.   57  — 
)liio  &  M.  F<.  Co.  V.  Davis.  23 
LLOWED  IN  Davis  7'.  Duncan, 
riy.  R.  Cas.  295,   19  Fed.  Kcp. 
^   G.  S.   L.  A'.  Co.  V.   Dor- 
108,  10  5.  W.  Kep.  711. 
company  is  liable,  after  its  re- 
Ihands  of  its  owners  from  the 
eceiver,  for  an  injury  sustained 
■e  during  the  control  of  the  le- 
rw  Pac.   A\   Co.   V.    White,   82 
S.   IV.  Hep.  478. 
uctioiiM  lor  cnii8iii{;  death. 
istituted  against  a  receiver  for 
ausing  the  death  of  plaintifT's 
employe  on  the  railway.     Sub- 
c  company  was  made  a  party, 
lie   discharge   of    the    receiver 
,'ht  to  recover  against  it,  niak- 
ssary  allegations  as  to  the  ap- 
)y  the  receiver  of  the  income  to 
He/d,  that  the  receiver  could 
liable  for  injuries  resulting  in 
lat  the  company  was  no  party  to 
the  receiver ;  a  judgment  for 
therefore  reversed.     Texai  &* 
Co//ins,  84  Tex.  12 1,  19  S.  IV. 
OLLOWING  Turner  v.  Cross,  83 
)akum  V.  Selph,  83  Tex.  607. 
t.  Rev.  St.,  art.  2899.  subd.  2,  a 
mot   be   held    liable  for  negii- 
ng  in   the  death  of  a   person 
received  while  its  road  was  in 
a  receiver,  where  it  does  not 
he  receiver  was  personally  and 
Builty  of  the  negligenc;  com- 
Texas  <S^  P.  /,•.  Co.  v.  Jiui'we, 
'pp.  i%.  20  S.  W.  Kep.  1 135, 
iltM  niid  cxooptioiLs  t«  (lio 
rally.*— The    mere    appoint- 
:eiver,  wiih  the  usual  por-ers, 
ve  the  company  from  liability 
I  <S-  M.  A'.  Co.  V.  F//cA,  20  /,t//. 
^rust  Co.  V.  Cuppy,  1 1  Am.  &> 
562,  26  A'an.  754, 
ilrond  is  in  the  hands  of  trus- 
ig  the  same  functions  the  cor- 

abiiity  of  company  notwithstand- 
p,  see  notes,  23  Am.  &  Eng.  R. 
I.  St.  Rep.  314. 


RECEIVERS,   1H4,  185. 


1^29 


poration  is  ff)rmed  to  exercise,  third  per- 
sons may  sue  the  corporation  in  respect  to 
tiaiisaciions  had  with  such  trusiet-s,  and 
not  the  trustees,  Grainl  To'ocr  .\l.  &^  /'. 
Co.  V.  U//man,  89  ///.  244.  — Ai'i'RcnKO  i.v 
Ricketts  v.  Chesapeake  &  O.  R.  Co.,  41 
Am.  &  Eng.  R.  Cas,  42,  33  VV.  Va.  433,  7  L. 
R.  A.  354,  10  S.  E.  Rep.  801.  FoLi.owKi) 
IN  Wisconsin  C.  R.  Co.  v.  Ross,  142  111,  y. 
Rr.viF.WEi)  IN  Naglce  v.  Alexandria  &  F.  R. 
Co.,  32  Am.  &  Eng,  R.  Cas.  401,  .Sj  Vi  707. 
It  IS  discretionary  in  a  court  tc  pi  unit  a 
suit  to  bi»  brought  against  a  company  and 
prosecuted  to  final  judgment  for  the  pur- 
pose of  fixing  the  rights  the  parties, 
though  its  property  be  in  the  hands  of  a  i  ■ 
ceiver.  Wyatt  v.  Ohio  tS-  M.  K.  Co.,  'v)  l/l. 
App.  289. 

The  performance  by  a  street-railway  com- 
pany of  its  contract  to  run  regular  trams  for 
a  period  of  ten  years,  under  penalty  of  for- 
f<*iting  an  extension  of  its  road,  is  not  ex- 
cused because  of  the  bringing  of  a  foreclo- 
sure suit,  and  the  appointment  of  a  receiver, 
who  ceased  to  operate  the  road,  the  com- 
pany being  enjoined  from  interfering  with 
the  possession  and  control  of  the  road. 
Klauber  v.  San  Diego  Street-Car  Co.,  95  Ca/. 
353.  30  Pac.  Rep.  SS5, 

If  it  be  made  to  appear  that  the  appoint- 
ment of  a  receiver  was  collusive,  and  made 
at  the  request,  and  for  the  benefit,  of  the 
company,  for  the  purpose  of  placing  its 
property  beyond  the  reach  of  certain  cred- 
itors, then  the  receiver  is  but  an  agent  of 
the  company,  makitig  it  liable  for  his  acts; 
and  the  same  may  be  true  if  the  receiver 
is  acting  under  orders  of  a  court  which  docs 
not  have  jurisdiction.  Texas  Pac.  K.  Co.  v. 
Johnson,  42  Am.  (&«•  Eng.  R.  Cas.  7,  76  Tex. 
421,  13 -S".   W.  Rep.  462. 

184.  Effect  of  receiver's  appoint- 
ineut  upon  pending  suitH.  —  The  ap- 
p^  'iitment  of  the  receiver  for  a  railway  fur- 
nishes no  ground  for  the  continuance  of  a 
suit  brought  against  the  corporation  prior 
to  such  adjudication.  Toledo,  VV.  &*  IV. 
R.  Co.  V.  Beggs,  85  ///.  80. 

The  fact  that  a  receiver  of  a  road  has 
been  appointed  in  a  federal  court,  which  is 
in  possession  of  the  property,  is  not  ground 
for  dismissing  a  suit  in  a  state  court  against 
the  company.  The  appointment  of  the  re- 
ceiver does  not  destroy  the  existence  of  the 
company  as  a  corporate  body,  nor  its  ca- 
pacity to  be  sued.  Wyait  v.  Ohio  &*  M.  R. 
Co.,  10 /ll.  App.  2Sg. 


1 8rt.  Effect  of  diNcliargc  of  receiver 
and  Hiirrender  of  road  to  company. 

—  Where  the  receiver  of  an  insolvent  lail- 
roarl  corporation  unlawfully  appro|)riates 
land  to  the  use  of  the  corporation,  aiirl, 
after  the  disrhiirgc  of  the  receiver,  the  cor- 
poration resumes  control  of  the  railroad, 
and  retains  possession  of  and  uses  the  land, 
the  owner  can  maintain  an  action  to  recover 
damages.  li/Mwifield  R.  Co.  v.  Van  S/ilie, 
107  hid.  480,  8  .V.  E.  Rep.  269.  — DisiiN- 
OUISHINf.  Ryan  v.  Curran,  64  Ind.  345,  31 
Am.  Rep.  123;  Sessengut  v.  Posey,  67  Ind. 
408,  33  Am.  Rep.  98. 

.3uch  a  right  of  action  cannot  be  barred 
by  a  notice  of  the  receiver,  requirirg credit- 
ors to  present  their  claims  against  the  cor- 
poration, liloomfie/d  R.  Co.  v.  Van  S/iie, 
107  //id.  480,  8  .V.  /•:.  Rep.  269. 

If  a  ticket  agent,  in  the  employ  of  the  re- 
ceiver of  a  railroad  company,  by  mistake, 
issues  the  wrong  ticket  to  an  intending 
traveler,  the  ccmpany  is  not,  upon  subse- 
quently i.'suming  control  of  the  road,  !ial)le 
for  the  mistake  of  the  receiver's  agent. 
Godfrey  v.  Ohio  «5-»  /f.  R.  Co.,  37  //;;/.  <S^ 
Eng.  R.  Cas.  8,  116  Ind.  30,  15  West.  Rep. 
533,  18  N.  E.  Rep.  61. 

Property  which  is  paid  for  by  earnings  of 
a  road  while  in  the  hands  of  a  receiver,  and 
surrendered  to  the  company  upon  the  dis- 
charge of  the  receiver,  may  be  subjected  in 
equity  to  a  claim  for  damages  incurred 
while  the  receiver  was  operating  the  road, 
if  the  claimant  was  given  no  opportunity  to 
enforce  his  claim  before  the  receiver  was 
discharged,  and  if  it  is  not  cut  o(I  Liy  any 
intervening  claims  of  third  parties.  Alobi/e 
6-  0.  R.  Co.  V.  Davis,  26  Am.  &*  Eng.  R. 
Cas.  425,  62  Miss.  271. 

The  remedy  of  the  claimant  in  such  case 
is  by  a  bill  in  chancery,  he  having  no  cause 
of  action  at  law  against  either  the  ex-re- 
ceiver or  the  railroad  company.  Mobiie  <S«» 
O.  R.  Co.  V.  Davis,  26  Am.  &^  Eng.  R.  Cas. 
425,  62  Miss.  271. 

A  judgment  may  be  rendered  against  a 
railroad  company  for  personal  injuries 
caused  by  negligence  while  the  road  was  in 
the  hands  of  a  receiver,  where  it  has  been 
subsequently  surrendered  to  the  compiiny 
with  large  improvements,  made  from  the 
net  earnings  while  in  the  hands  of  the  re- 
receiver,  and  a  state  court  may  entertain 
jurisdiction,  though  the  receiver  was  ap- 
pointed by  a  federal  court,  and  may  enforce 
its  judgment  directly  against  the  property 


1230 


RECEIVERS,  186. 


f 


i 


of  the  company  by  execution.  Texas  <S- 
P.  R.  Co.  V.  Johnson,  151  £/.  5.  81,  14  5«/. 
Ct.  Rep.  250 ;  affirming  42  /^;«.  &'  •£'/(f.  /i'. 
Cas.  7,  76  7V.I-.  421,  13  5.  /F.  /vV/.  463. 
Texas  Pac,  P.  Co.  v.  Overkeiser,  76  7>;r. 
437.  '3  -S^-  W^-  -^^^^  468,— Following  Texas 
Pac.  R.  Co.  V.  Johnson,  76  Tex.  421.— Fol- 
lowed IN  Boggsz/.  Brown,  82  Tex.  41. — 
Texas  Pac.  R.  Co.  v.  Griffin,  76  Tex.  441, 
13  S.  W^./iV/.  471. —Following  Texas  Pac. 
R.  Co.  V.  Johnson,  76  Tex.  421. — Followed 
IN  Hoggs  V.  Brown,  82  Tex.  \\.—Boggs  v. 
Brown,  82  Tex.  41,  17  5.  W.  Rep.  830.— 
Following  Brown  v.  Gay,  76  Tex.  444; 
Texas  Pac.  R.  Co.  v.  Johnson,  76  Tex.  421 ; 
Texas  Pac.  R.  Co.  v.  Overheiser,  76  Tex. 
437;  Texas  Pac.  R.  Co.  v.  Griffin,  76  Tex. 
441  ;  Texas  &  P.  R.  Co.  v.  Geiger,  79  Tex. 
13  ;  Texas  &  P.  R.  Co.  v.  Miller,  79  Tex.  81. 
—  Texas  &*  P.  R.  Co.  v.  Huffman,  83  Tex. 
286,  18  S.  JV.  Rep.  741.  Texas  &•  P.  R. 
Co.  V.  Brick,  83  Tex.  526,  18  5.  ^T.  Rep. 
947.  Texas  <&*  P.  R.  Co.  v.  Covistock,  83 
Tex.  537,  18  5.  W.  Rep.  946.  Kretz  v. 
TV^aj  6-  />.  ./?.  G;.,  (7>.r.  App:)  14  5.  fT. 
7?^/.  1067.  Texas  <S-  T'.  A'.  Co.  v.  W^a//J, 
(Tifj:.)  18  S.  W.  Rep.  312.— FOLLOWING 
Texas  Pac.  R.  Co.  v.  Johnson,  76  Tex.  421, 
13  S.  W.  Rep.  Afii.  — Texas  &*  P.  R.^Co.  v. 
Rosedale  St.  R.  Co.,  4  Tex.  App.  {Civ.  Cas.) 
266.  IS  5.  W.  Rep.  120. 

Where,  after  an  action  has  been  com- 
menced against  a  receiver,  in  his  official  or 
representative  character,  he  is  discharged 
and  the  property  restored  to  the  owner,  the 
owner  must  be  made  a  party  to  the  action 
before  any  judgment  can  be  entered  which 
will  be  binding  upon  him  or  the  property. 
Brown  v.  Gay,  42  Am.  &•  Eng.  R,  Cas.  23, 
76  Tex.  444,  13  5.  IF.  Rep.  472. 

In  a  su't  originally  brought  against  a  re- 
ceiver, if  it  be  continued  against  the  com- 
pany after  the  discharge  of  the  receiver, 
and  there  exist  facts  making  the  company 
liable  for  the  losses  occurring  while  it  was 
in  the  hands  of  the  receiver,  such  facts 
must  be  alleged  and  proved.  Texas  &^  P. 
R.  Co.  V.  Adams,  78  Tex.  372,  14  S.  W.  Rep. 
666. 

After  a  receiver  has  been  discharged,  a 
person  may  sue  the  company  in  any  court 
of  competent  jurisdiction  for  a  claim  arising 
from  personal  injuries  while  the  road  was 
run  by  the  receiver,  without  first  obtaining 
leave  of  the  court  which  appointed  the 
receiver.  Texas  &*  P.  R.  Co.  v.  Watts, 
{Tex.)    18  S.    W.  Rep.   312.— FOLLOWING 


Texas  Pac.  R.  Co.  v  Johnson,  76  Tex.  421, 
13  S.  W.  Rep.  463. 

180.  Effect  ot'siirreuder  of  roadto 
piii'cliascrM  or  new  couipnuy.  —  (i)  In 

genera/.— Where  a  purchasing  company 
takes  possession  of  a  railroad  under  a  fore- 
closure deed  made  under  a  decree  of  court, 
containing  a  clause  "  that  said  estate  and  in- 
terest are  hereby  charged  vith  and  shall  pass 
by  virtue  of  these  pres'jnts,  subject  to  the 
payment  of  all  liabilities  incurred  in  respect 
to  said  railroad,  or  its  business,  by  said  re- 
ceiver," during  the  pendency  of  the  legal 
proceedings  in  which  the  receiver  was  ap- 
pointed, the  grantee  company  will  hold  the 
property  subject  to  the  payment  of  such 
liabilities  as  the  receiver  had  incurred  while 
he  had  control  of  the  road.  Brown  v.  Wa- 
bash  R.  Co.,  96  ///.  297. 

Where  a  railroad  is  sold  and  the  receiver 
is  directed  to  turn  over  the  property  to  a 
new  company  which  has  become  the  pur- 
chaser, on  condition  that  it  will  assume  and 
pay  all  liabilities  incurred  while  the  road 
was  operated  by  the  receiver,  it  becomes 
liable  to  one  who  acquires  a  claim  for  dam- 
ages while  the  road  was  operated  byihe  re- 
ceiver. Sloan  v.  Central  Iowa  R.  Co.,  11  Am. 
&•  Eng.  R.  Cas.  145,  62  Iowa  728,  i6  A^.  W. 
Rep.  331.  Schmid  v.  New  York,  L,  E.  Sf 
tV.  R.  Co.,  32  Hun  (N.  V.)  335  ;  affirmed 
(?)  98  N.  V.  634,  mem.  Farmers'  L.  &*  T. 
Co.  V.  Central  R.  Co.,  12  Am.  &•  Eng.  R. 
Cas.  461,  5  McCrary  {U.  S.)  421,  17  Fed. 
Rep.  758. 

Where  a  chancery  court  has  obtained 
jurisdiction  of  the  parties  and  of  railroad 
property,  and  has  placed  it  in  the  hands  of 
a  receiver,  it  has  power  to  make  a  condi- 
tional order  to  discharge  the  receiver  and 
surrender  the  property  to  purchasers,  but  to 
retain  jurisdiction  of  the  case  for  the  pur- 
pose of  enforcing  any  debts  and  liabilities 
incurred  by  the  receiver  while  operating  the 
road.  Farmers'  L.  &>  T.  Co.  v.  Central  R. 
Co.,  12  Am.  <&«•  Eng.  R.  Cas.  461,  5  McCrary 
{l/.S.)  421,17  Fed.  Rep.  758. 

(2)  Rule  in  Texas— Statute  of  limitations. 
— The  liability  for  damages  inflicted  by  the 
negligence  of  the  servants  of  a  receiver  is, 
when  such  receiver  is  invested  with  exclu- 
sive control,  the  liability  of  the  receiver- 
ship, and  may  be  enforced  against  any  fund 
in  his  hands  resulting  from  the  trust  subject 
to  its  payment,  or  against  the  property  of 
the  company  while  controlled  by  him.  A 
subsequent  purchase  of  the  road   by  the 


V  Johnson,  76  Tex.  421, 

■  .surrender  of  road  to 
ew  coiiipauy.  — (I)  In 

a  purchasing  company 
f  a  railroad  under  a  fore- 

under  a  decree  of  court, 
I "  t)iat  said  estate  and  in- 
larged  vith  and  shall  pass 

presients,  subject  to  the 
ihties  incurred  in  respect 

its  business,  by  said  re- 
e  pendency  of  tlie  legal 
ich  the  receiver  was  ap- 
!e  company  will  hold  the 

0  the  payment  of  such 
:eiver  had  incurred  while 
he  road.  Brown  v.  IVa- 
297. 

1  is  sold  and  the  receiver 
over  the  property  to  a 

:h  has  become  the  pur- 
n  that  it  will  assume  and 
incurred  while  the  road 
;he  receiver,  it  becomes 
icquires  a  claim  for  dam- 
I  was  operated  by  the  re- 
ntrallowa  R.  Co.,\\  Am. 
5.  62  Iowa  728,  1 6  A^.  W. 

V.  New  York,  L.  E.  6- 
tn  (N.  Y.)  335  ;  affirmed 
nem.    Farmers'  L.  &*  T. 

Co.,  \2  Am.  Sf*  Eng.  R. 
■ry{U.    S.)  421,  17  Fed. 

:ry  court  has  obtained 
parties  and  of  railroad 
>laced  it  in  the  hands  of 
tower  to  make  a  condi- 
charge  the  receiver  and 
erty  to  purchasers,  but  to 
of  the  case  for  the  pur- 
any  debts  and  liabilities 
elver  while  operating  the 
.  <S«»  T.  Co.  V.  Central  R. 
;  R.  Cas.  461,  5  McCrary 
Rep.  758. 

r — Statute  of  limitations, 
damages  inflicted  by  the 
servants  of  a  receiver  is, 

■  is  invested  with  exclu- 
liability  of  the  receiver- 
n forced  against  any  fund 
ng  from  the  trust  subject 
against  the  property  of 
i  controlled  by  him.  A 
ise  of  the  road   by  the 


RECEIVERS,  186. 


1231 


company  from  one  who  bought  it  at  a  sale 
made  by  the  receiver  under  a  propen  order 
of  court  will  not  render  the  company  liable 
for  torts  inflicted  by  the  receiver  while  op- 
erating the  road.  The  property  passes  to 
til  purchaser,  freed  from  the  claims  against 
the  receiver.  Hicks  v.  International  &*  G. 
N.  R.  Co.,  62  Tex.  38. -Distinguishing 
Ohio  &  M.  R.  Co.  V.  Nickless,  73  Ind-  383- 
^Ryan  v.  Hays.  23  Am.  (S-  Eng.  R.  Cas. 
501,  62  Tex.  42.— Followed  in  Interna- 
tional &  G.  N.  R.  Co.  V.  Ormond.  62  Tex. 

■  274. 

With  the  discharge  of  a  receiver,  and  the 
surrender  of  all  property  in  his  hands  as  re- 


ceiver, his  liability  ceases,  except  in  cases 
where  he  was  personally  at  fault.  Ryan  v. 
Hays,  23  Am.  &'  Eng.  R.  Cas.  501,  62  Tex. 

42. 

Suit  was  instituted  within  one  year  from 
an  injury  against  the  receiver  of  a  railway. 
The  road  was  restored  to  the  company,  and 
within  less  than  a  year  from  the  restoration, 
but  more  than  a  year  c.fter  the  injury,  the 
company  was  made  a  party  defendant.  Held, 
that  the  action  against  the  company  was  not 
barred.  An  action  against  a  receiver  is 
practically  one  against  the  company.  Texas 
6-  P.  R.  Co.  V.  Huffman,  83  Tex.  286,  18  S. 
W.  Rep.  741. 


